4
 
 PRACTICAL TREATISE ,Qtl»^^ 
 
 THE LAW OF TRUSTS 
 
 TRUSTEES. 
 
 BY 
 
 THOMAS LEW IN, ESQ., 
 
 or TKIXITT CoLLEiJE, OXOX^ M. A., AXD OF U?(C0L.<«'8 IX<<, DAHRISTER-AT-LAW, 
 
 OKI or Till 
 
 OO.XVETAXCIXO COIXSEL TO TDE COCBT Of CUANCEItY. 
 
 SECOND AMERICAN, FROM THE THIRD LONDON EDITION. 
 
 PniLADELPUIA: 
 
 T. & J. W. JOHNSON & CO., 
 LAW BOOKSELLERS AND TUBLISHERS, 
 
 No. 636 CHESTNUT STREET. 
 
 18 58.
 
 I?^- 
 
 
 T 
 
 
 Rotb, Pile Sc U'Eircy, Pr'a, 
 Ledge Street, Tbilada.
 
 Ta the iligM ;^]ononl)lc %qx^ §t. ^fonariis, 
 
 ETC. ETC. ETC. 
 
 My Lord, 
 The rare talents mid inilifutignblc iiulustry. whidi. without any extrinsic aid. 
 have raised your Lordsliipto tlie most honorable eminence, command the admira- 
 tion and respect of every Mejubcr of the Profession. 
 
 Personally, I feel myself under peculiar oblipations. Your Lordship's writings 
 have been the models, and have furnished no small part of the materials, for the 
 present treatise; and your Lordship's appointment of me as one of the Convey- 
 ancing Counsel to the Court, has enabled me to bring to the revision of my work 
 an enlarged practical experience. 
 
 Permit me. my Lord, on these public and private grounds, to dedicate tlie fol- 
 lowing pages to your Lordship ; and witli the earnest hope that your Lordsliip's 
 valuable life may long be preserved to the Profession and the community at large, 
 I remain your Lordship's most obliged and grateful servant. 
 
 THE AITTUOIJ. 
 
 "yR 
 
 TT -r ^;
 
 rUEFACE. 
 
 In the present Edition the Author has recast the earlier part of the 
 work, and, besides incorporating recent cases and statutes, and inter- 
 spersing much additional matter throughout, has appended a supplemen- 
 tary chapter on Pleading and Practice. 
 
 The correction of the press was kindly undertaken lor the Author by 
 Mr. F. 0. Haynes, whose extensive knowledge of law and careful research 
 are well known at the Chancery IJar. Had the labours of Mr. Ilayues 
 gone no further, the Author would have felt grateful fur tlie assistance, 
 but in fact, 3Ir. Ilaynes, as the sheets passed through hi;, hands, has 
 identified himself with the Author, and examined into the law — has 
 inserted additional authorities which had been inadvertently omitted, 
 and corrected mistakes into which the Author had occasionally fallen. 
 Moot points, also, as they arose have been freely discussed, and the 
 reader has the benefit of the conclusions arrived at. The Author is of 
 course to be held responsible for the errors which remain, but the value 
 of the work (whatever it may be) has been unquestionably much enhanced 
 by the legal acumen and learning which Mr. Haynes has imported 
 into it. 
 
 The Index has been compiled for the Author by 3Ir. P. A. Kingdon, 
 a much esteemed former pupil. The merits of this part of the work will 
 be best tested in the use, but a superficial glance will show that never 
 were more pains taken to render an Index as perfect as possible. 
 
 The Author begs in conclusion to thank his coadjutors for their timely
 
 VI 
 
 LEWIN OX THE LAW OF TRUSTS, ETC. 
 
 aid and to assure them that he appreciates his own performance much 
 more hic^hly from the circumstance that two gentlemen of their talents 
 and standing, have condescended to bestow upon it so much of their time 
 and labour. 
 
 July 4, 1857,
 
 TABULAR ANALYSIS. 
 
 The pages referred to are those between brackets [ 
 
 PART I. 
 
 Definition of a trust, p. 15. 
 
 Classification of trusts, p. 21. 
 
 Creation of trusts, p. 21. 
 
 By act of a party, 
 p. 24. 
 
 By operation of 
 law, p. 176. 
 
 I I I I I 
 
 Necessary par- What property Formalities The object Of the Ian- 
 ties to a may be made required, proposed, guage de- 
 trust, p. 24. subject to a p. 56. p. 103. claringthe 
 trust, p. 45. trust, p. 
 
 140. 
 
 1 i 
 
 Lawful Unlawful 
 
 trusts, trusts, 
 
 p. 103. p. 131. 
 
 Express Implied 
 trusts, trusts, 
 p. 140. p. 1C7. 
 
 Executed, Executory, 
 p. 144. p. 144." 
 
 1 i 
 
 In marriage ar- In wills, 
 tides, p. 146. p. 153. 
 
 Settlor, Trustee, Cestui At com- Under Stat. Under Stat. Of trans- 
 p. 24. p. 30. que mon of Frauds, of Wills, mutation 
 
 trust, law, p. 60. p. 65. of pos- 
 
 p.41. p. 56. session, 
 
 p. 81. 
 
 Resulting trusts, 
 p. 176. 
 
 Constructive trusts, as renewal of 
 leaseholds, «&c., p. 217. 
 
 Legal interest, but not the 
 equitable, disposed of, p. 176. 
 
 Upon purchases in names of 
 third persons, p. 199. 
 
 By presumption By force of words, In name of a stran- In name of a 
 of law, p. 177. p. 181. ger, p. 199. child, p. 207.
 
 Yin 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 PART II. 
 
 The Trustee. 
 
 Disclaimer and ac- 
 ceptance, p. 232. 
 
 The legal estate in the 
 trustee, p. 246. 
 
 The ofiBce of trustee, 
 p. 289. 
 
 How vested, 
 p. 246. 
 
 Properties 
 of estate, 
 p. 260. 
 
 ■^'hat owners 
 of the estate 
 bound by the 
 trust, p. 279. 
 
 At common law, 
 p. 260. 
 
 By statute, 
 p. 273. 
 
 General properties, Duties of trustees. Powers, Allowances, Relinquishment 
 p. 289. p. 326. p. 512. p. 545. of office.p. 565. 
 
 1. Renunciation, p. 289. 
 
 2. Delegation, p. 290. 
 
 3. Joint nature of the ofiBce, 
 
 p. 297. 
 
 4. Survivorship, p. 299. 
 
 5. Liability, p. 302. 
 
 6. Trustee excluded from all 
 
 benefit, p. 318. 
 
 General, For trouble, p. 545. 
 
 p. 512. For expenses, p. 557. 
 Special, 
 
 p. 524. 
 
 I \ 
 
 By consent of By power, 
 
 ceshd que p. 566. 
 
 trust, p. 565. 
 
 By suit, 
 p. 582. 
 
 II I I I I 
 
 In trusts In trusts of In trusts to pre- In trusts In trusts for In trusts for 
 
 of per- renewable serve contin- for sale, payment of charities, 
 
 sonalty, leaseholds, gent remain- p. 414. debts, p. p. 492. 
 
 p. 326. p. 383. ders, p. 404. 474. 
 
 1. Reduction into possession, p. 326. 
 
 2. Safe custody, p. 332. 
 
 3. Investment, p. 337. 
 
 4. Liability of trustees to payment of 
 
 interest, p. 358. 
 
 5. Distribution of the trust fund, p. 
 
 365. 
 
 General Trustees' 
 duties, receipts, 
 p. 414. p. 428. 
 
 Purchase of the 
 trust property 
 by trustees, p. 
 460.
 
 TABULAR ANALYSIS. 
 
 PART III. 
 
 The Cestui que Trust. 
 
 Estate as be- 
 tween cestui 
 que trust 
 and trus- 
 tees, p. 585. 
 
 Estate as affect- 
 ed by dealings 
 of cestui que 
 trusty or by 
 operation of 
 law, p. 600. 
 
 Subsidiary 
 rights of 
 cestui que 
 trusty p. 
 693. 
 
 Maxims of equity 
 in support of the 
 cestui que trusts' 
 estate against 
 the acts of the 
 trustee, p. 792. 
 
 Statutory enact- 
 ments remedy- 
 ing inconveni- 
 ences from the 
 disability of the 
 trustee, p. 832. 
 
 In the sim- In the spe- 
 ple trust, cial trust, 
 p. 585. p. 597. 
 I 
 
 i I. 
 
 Jushabendi, Jus dispo- 
 p. 585. nendi, p. 
 
 595, 
 
 Relief against 
 failure of 
 the trus- 
 tees, p. 693. 
 
 I 
 Rights in preven- 
 tion of a breach 
 of trust, p. 710. 
 
 1. Assignment, p. 600. 
 
 2. Testamentary disposition, p. 615. 
 
 3. Seisin, p. 617. 
 
 4. Dower and curtesy, p. 621. 
 
 5. Feme covert, p. 627. 
 
 6. Judgments, p. 646. 
 
 7. Extents, p. 673. 
 
 8. Forfeiture, p. 674. 
 
 9. Escheat, p. 678. 
 0. Descent, p. 680. 
 .1. Assets, p. 681. 
 
 I 
 Remedies in event 
 of a breach of 
 trust, p. 724. 
 
 Appointment of pro- 
 per trustees, p. 710. 
 
 Compulsion of trus- Injunction against breach 
 tees to duty, p. 718. of duty, p. 723. 
 
 Of following 
 the specific 
 trust es- 
 tate, p. 724. 
 
 Of attaching property 
 into which the 
 trust estate has 
 been converted, p. 
 753. 
 
 Remedy against the 
 trustee personally, 
 p. 763. 
 
 Remedies in breaches 
 of trust by trustees 
 for charities, p. 778. 
 
 PART IV. 
 
 Pleading and Practice in reference to the Law of Trusts and Trustees. 
 \ 
 
 Necessary Order and man- 
 parties ner of suing 
 to suits, and defending, 
 p. 841. p. 856. 
 
 I 
 
 Distringas, 
 
 p. 858. 
 
 I 
 Compulsory 
 payment 
 into court, 
 p. 864, 
 
 I 
 
 Receivership, 
 
 p. 869. 
 
 I 
 
 Costs of 
 suit, p. 
 872.
 
 CONTENTS. 
 
 M l 
 
 The pages referred to are those between brackets [ ]. 
 
 INTRODUCTION. 
 
 Origin of trusts, .... 
 
 Invention of the subpoena, 
 
 The simple trust or use, 
 
 Confidence in the person of the trustee, . 
 
 Privity of estate in the trustee. 
 
 Privity as applied to the estate of the cestui que t 
 
 The special trust, .... 
 
 Both kinds of trusts applicable to chattels. 
 
 Statute of 1 R. 3_, c. 1, . 
 
 What trusts within it, . 
 
 [Whether a trust could have been declared on an 
 
 Statute of 27 Hen. 8, c. 10, 
 
 [Mr. Sanders's doctrine, that before this statute i 
 
 declared on an estate in tail, or for life. 
 What trusts within the statute, 
 Introduction of the modern trust, 
 Statutes against uses not applicable to trusts, 
 Trusts at first administered on principles of uses, 
 Subsequent improvements of the system, 
 In respect of the estate in the trustee, 
 In respect of the cestui que trust, . 
 Principles governing trusts at the present day, 
 
 estate for life, 
 use could 
 
 6, note 
 
 have 
 
 been 
 7, note 
 
 1 
 1 
 
 2 
 2 
 3 
 3 
 4 
 4 
 5 
 5 
 
 (1)] 
 
 7 
 
 (1)] 
 
 9 
 
 9 
 
 10 
 
 11 
 
 13 
 
 PART I. 
 
 DEFINITION, DISTRIBUTION, AND CREATION OF TRUSTS. 
 
 CHAPTER I. 
 DEFINITION OF A TRUST. 
 
 1. A trust is a confidence, 
 
 2. Reposed in some other, 
 
 How far the equitable merges in the legal estate, 
 
 3. Not issuing out of the land, but collateral to it, 
 
 4. Annexed in privity to the estate, 
 
 5. Annexed in privity to the person, 
 
 6. Cestui que trust has no remedy but by subpoena in Chancery, 
 
 15 
 15 
 16 
 18 
 18 
 19 
 19
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 CHAPTER II. 
 
 CLASSIFICATION OF TRUSTS. 
 
 The simple trust, . 
 The special trust, . _ 
 The latter either ministerial. 
 Or discretionary, . 
 Mislure of trust and power. 
 Trusts lawful and unlawful. 
 Trusts public and private. 
 
 21 
 21 
 21 
 21 
 22 
 22 
 23 
 
 CHAPTER III. 
 OF THE PARTIES TO THE CREATION OF TRUSTS. 
 
 Section I. 
 
 OF THE SETTLOK. 
 
 Who may create a trust. 
 
 The Crown, 
 
 Corporations, 
 
 Kfeme covert, 
 
 As to property settled to separate use. 
 
 Infants, .... 
 
 Lunatics, .... 
 
 Traitors, felons, and outlaws. 
 
 Bankrupts and Insolvents, 
 
 24 
 24 
 25 
 
 25 
 2G 
 26 
 27 
 
 28 
 29 
 
 Section II. 
 
 WHO MAY BE A TRUSTEE. 
 
 The Crown, 
 
 A Corporation, . 
 
 Bank of England, 
 
 Feme covert ought not to be appointed, 
 
 Nor a feme sole, 
 
 Nor an infant. 
 
 Alien may be a trustee of chattels personal. 
 
 Person domiciled abroad not a fit trustee. 
 
 Bankrupts and insolvents not absolutely disqualified, 
 
 Cestuis que trust should not be appointed trustees, 
 
 Proper number of trustees, . . . 
 
 30 
 31 
 31 
 34 
 35 
 35 
 39 
 40 
 40 
 40 
 40 
 
 Section III. 
 
 WHO MAY BE CESTUI QUE TRUST. 
 
 The Crown may be, ....... 42 
 
 A corporation not, so as respects lands, without license from the Crown, 43 
 Nor alien, of lands, ....... 43 
 
 Secus as to proceeds of sale of land directed to be sold, . . .43
 
 CONTENTS. 
 
 xm 
 
 CHAPTER IV. 
 
 WHAT PROPERTY MAY BE MADE THE SUBJECT OF A TRUST. 
 
 Copyholds may be, . 
 
 No power to entail equitable interest of copyholds where no custom to en 
 
 tail legal interest, 
 Equitable interests in foreign property, 
 Equities in relation to West Indian property, 
 Equities in respect of lands in Scotland, . 
 Demerara property. 
 
 Lands in Ireland, .... 
 Covenant to settle lands in Demerara, 
 Trusts of lands abroad. 
 
 45 
 
 46 
 46 
 47 
 48 
 49 
 50 
 51 
 53 
 
 CHAPTER V. 
 
 OF THE FORMALITIES REQUIRED FOR THE CREATION OF A 
 
 TRUST. 
 
 Section I. 
 
 OF TRUSTS AT COMMOX LAW. 
 
 Trusts are averable like uses, .... 
 
 Averment must not contradict the instrument. 
 
 Trusts not averable where deed requisite to pass the legal estate, 
 
 Nor upon a devise even at Common law, . 
 
 Nor on a bequest or appointment of executor. 
 
 Declaration of trust by or to the kin, 
 
 Section II. 
 
 OF THE STATUTE OF FRAUDS. 
 
 I. What interests within the Act, 
 Copyholds are so, . 
 
 And chattels real, .... 
 Chattels personal not so, • 
 Charitable uses within the Act, 
 Whether Crown bound by the statute. 
 Land in the Colonies, 
 Whether statute must be pleaded, . 
 
 II. What formalities required by the statute, 
 Trusts to be proved bij not declared in writing. 
 Letter or recital sufficient, . 
 
 Relation to subject-matter and nature of trust must be clear, 
 The writing must be signed, .... 
 
 Section III. 
 OF the statute of wills. 
 
 Principle of rejecting declarations not testamentary, 
 Case where no trust appears on the will and no fraud exists, 
 Where the devisee is made a trustee by the will, and the testator leaves an 
 informal declaration of trust, ...... 
 
 Exceptions to the rule, ....... 
 
 1. General charge of debts and legacies under the old law, 
 
 2. Fraud, ......... 
 
 Janu,iry, 1858. — 2 
 
 56 
 56 
 57 
 58 
 58 
 59 
 
 60 
 60 
 61 
 61 
 61 
 62 
 62 
 62 
 62 
 62 
 63 
 64 
 64 
 
 65 
 68 
 
 68 
 69 
 69 
 70
 
 3^y LEWIN ON THE LAT7 OF TRUSTS, ETC. 
 
 En<Tat^ement to execute an unlawful trust, . . • • 
 
 Demise to tenants in common with unlawful object, may be good as to one 
 
 and void as to another, . • • ' . xi, " i 
 
 Devise not void merely because the devisee means to execute the unlaw 
 
 ful trust, . . • • 
 
 Engagement by devisee as to undefined part, 
 En^a^ement to execute a trust and none declared, 
 Devisee a trustee on the face of the will, and parol undertaking by the 
 
 devisee to perform the trust, . . •,,,*. Z i • 
 
 In the case of a le^-al devise with a subsequent jparoZ declaration tor chan 
 
 table uses, the Statute of Mortmain does not avoid the legal devise, 
 
 Section IV. 
 
 TBAlfSMtTTATIOX OF POSSESSION'. 
 
 In the absence of valuable consideration question is not whether there has 
 
 been transmutation, but whether trust has been perfectly created, 
 
 (I.) Trusts not perfectly created where settlor contemplates further acts, 
 
 (11.) Where the settlor declares himself a trustee, the trust is perfectly 
 
 created, . . . . • •.•..' 
 
 (in.) Where a stranger, and not the settlor himself a. trustee, distinctions 
 
 necessary, .....•• 
 
 1. If subject-matter a legal interest capable oi legal transfer, 
 it must be actually veste^ in the trustee, 
 
 2. If legal, but not capable of legal transfer, much difficulty, 
 
 3. If subject-matter an equitable interest, an assignment to 
 the new trustee sufficient. 
 
 Voluntary settlement of real estate defeated by subsequent sale, 
 Voluntary settlement of real or personal estate by one virtually insolvent 
 
 void against creditors. 
 Specific performance of agreement under seal without valuable considera 
 
 tion, ..... 
 Meritorious consideration, 
 Analogy of covenant to stand seised. 
 Analogy from supplying surrender of copyholds. 
 Analogy of aiding defective execution of powers, 
 Agreement for meritorious consideration not enforced against the settlor. 
 When trust once perfectly created, legal interest revesting in the settlor 
 
 immaterial, ........ 
 
 Voluntary trust for payment of debts, ..... 
 
 71 
 
 73 
 
 73 
 73 
 
 74 
 
 75 
 
 78 
 
 81 
 81 
 
 82 
 
 84 
 
 84 
 85 
 
 89 
 
 92 
 
 93 
 
 93 
 95 
 95 
 96 
 96 
 97 
 
 99 
 101 
 
 CHAPTER VI. 
 
 OF THE OBJECT PROPOSED BY THE TRUST. 
 
 Section I. 
 
 OF LAWFUL TRUSTS. 
 
 The intention in general followed, • . . . . 
 
 Object not attainable by any limitation of the legal estate may, if not 
 
 against the policy of the law, be attained by a limitation of the 
 
 equitable, 
 A fee upon a fee in trusts. 
 Contingent remainders in trusts. 
 Limitations of chattels in trusts, 
 Endowments of chapels. 
 Gift to the " poor of a parish," 
 Advowson upon trust for « parishioners and inhabitants," 
 
 103 
 
 103 
 103 
 104 
 104 
 104 
 105 
 107
 
 CONTENTS. 
 
 XV 
 
 Mode of electing a clerk, . 
 
 Trusts for accumulation, . . 
 
 Thellusson Act, 
 
 Points resolved upon the construction of it. 
 
 To whom the excess shall go, 
 
 Exceptions from the act, 
 
 Settlement to separate use oifeme covert^ 
 
 The interposition of an express trustee not necessary, 
 
 What words will create a settlement to the separate use, 
 
 Clause against anticipation, 
 
 Effect before marriage of clause against anticipation, 
 
 EiFect after marriage of trust for separate use, 
 
 Effect after marriage of clause against anticipation, 
 
 Effect of separate use in case of second marriage. 
 
 Section II. 
 
 109 
 110 
 112 
 113 
 116 
 119 
 120 
 121 
 121 
 123 
 124 
 124 
 128 
 130 
 
 OF UNLAWFUL TRUSTS. 
 
 Trusts against the policy of the law. 
 
 Illegitimate children. 
 
 Trusts of real estate for corporations, 
 
 Trusts of real estate for alien. 
 
 Trusts of real estate for charity. 
 
 Restriction on alienation, . 
 
 Trusts for maintenance, 
 
 Limitation over an alienation. 
 
 Director to purchase presentation, 
 
 Insurances for lives, 
 
 Splitting votes. 
 
 Consequences of creating a trust with an unlawful purpose, 
 
 Property settled with an unlawful purpose may be recovered by those 
 
 claiming under settlor, .... 
 
 Or by the settlor himself, where there is no positive fraud, 
 
 131 
 131 
 131 
 132 
 132 
 132 
 133 
 135 
 136 
 136 
 137 
 137 
 
 138 
 139 
 
 CHAPTER VI I. 
 
 IN WHAT LANGUAGE A TRUST MAY BE DECLARED. 
 
 Section I. 
 
 OF DIRECT OR EXPRESS DECLARATIONS OF TRUST. 
 
 Technical words not necessary, - . . . 
 
 If employed must be taken in their technical sense. 
 
 Lord Hardwicke's opinion overruled, 
 
 Whether the rule in Shelly's case applies to trusts. 
 
 Distinction between trusts executed and trusts executory. 
 
 Lord Hardwicke's opinion in Bagshaw v. Spencer, 
 
 Executory trusts in articles and wills distinguished. 
 
 Construction of " heirs of the body" and " issue" in articles, 
 
 Daughters included under " heirs of the body" and " issue," 
 
 Articles to settle chattels on trusts of real estate. 
 
 Limitation over on "dying under 21," or "dying under 21 without issue,' 
 
 Joint-tenancy may in articles be construed tenancy in common. 
 
 Words may be supplied in articles, .... 
 
 Construction of "heirs of the body" and "issue" in executory trusts in 
 wills, ....... 
 
 " Heirs of the body" and " issue" distinguished, . 
 
 Daughters included under " heirs of the body" or " issue" in wills 
 
 Limitation to preserve contingent remainders, . . . 
 
 140 
 141 
 141 
 143 
 144 
 144 
 146 
 147 
 149 
 149 
 150 
 152 
 153 
 
 153 
 155 
 
 156 
 156
 
 XVI 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 157 
 
 157 
 
 164 
 166 
 
 Settlement of gavelkind lands, . ' , ' , • ' v '. .-^^^ 
 
 No latitude of construction where testator declares his own limitations 
 
 formally, . . • * ^ i i. 4. i -o 
 
 Direction in wills to settle chattels on trusts of real estate, ._ . lo» 
 Joint tenancy in wills in what cases may be construed tenancy in com- ^^^ 
 
 mon, . . • • • • • ' 1CJ. 
 
 Insertion of powers in settlements, . . • • . id-a 
 "Usual powers," ...•••• 
 "Proper powers," ...•••• 
 
 Section II. 
 of implied trusts. 
 
 General rule, ...•••• 
 
 Words precatory, recommendatory, &c., . . . • 
 
 No trust where there is uncertainty, .... 
 
 Either of the objects, ...••• 
 
 Or of the subject-matter, . . . . • ' 
 
 The implied trust may be negatived by indicia of a contrary intention, 
 
 Not so restrictive as a proper trust, .... 
 
 Court at present leans against implying trusts, 
 
 Surplus does not result, . . . • ^ • 
 
 Implied trust under agreement for valuable consideration, 
 
 Or under a contract for sale, ..... 
 
 167 
 167 
 168 
 169 
 170 
 171 
 172 
 173 
 173 
 173 
 174 
 
 CHAPTER VIII. 
 
 OF RESULTING TRUSTS. 
 
 Section I. 
 
 WHERE THERE IS A DISPOSITION OF THE LEGAL INTEREST AND NOT OF THE 
 
 EQUITABLE. 
 
 General rule, ....... 
 
 Arise either upon presumption or expression of intention, 
 In what cases a resulting trust arises upon presumption, . 
 Distinction between devise upon a partial trust and beneficial devise sub 
 
 ject to a charge, ...... 
 
 Recognition of the devisee's relationship evidence of beneficial devise. 
 The words "trust" and "trustee" not conclusive that mere trust was in 
 
 tended, ....... 
 
 Heir not excluded from resulting trust on bare conjecture, 
 A trust resulting by presumption may be rebutted by parol evidence. 
 In what cases a resulting trust arises from intention expressed, . 
 Parol evidence not admissible to rebut latter kind of trust. 
 General observations upon resulting trusts, 
 
 1. Money arising from sale of real estate results to the testator's heir. 
 If purposes of the trust only partially fail, the residue results to the heir 
 
 as personal estate, ....... 
 
 If the purposes of the trust wholly fail, the entirety results to the heir as 
 real estate, . • . ^ . . . . 
 
 2. Money bequeathed to be laid out on land results to the testator's next 
 
 of kin, • • . . . 
 
 3. Cases of primary disposition of the whole property to A. subject to a 
 
 charge in favour of B., 
 Difference between exception from a devise. 
 And charge upon a devise. 
 Possible distinction in the case of a legacy to charity. 
 
 176 
 177 
 177 
 
 179 
 180 
 
 180 
 181 
 181 
 181 
 182 
 182 
 182 
 
 184 
 
 184 
 
 187 
 
 189 
 191 
 192 
 192 
 
 Results of the cases, . . . , , ! 193 194
 
 CONTENTS. 
 
 XVll 
 
 4. The resulting Interest may be given away from the heir or next of kin 
 
 by express devise or bequest, . . . • • 
 
 The word " residue" could not, before the late Wills Act, pass resulting 
 
 interest in land, ....••• 
 
 Gift of testator's " personal estate" will not pass money arising from sale 
 
 of real estate, . • • _ • • 
 
 Such an intention may be collected from the will, . . 
 
 In what case a lapsed legacy out of proceeds of real estate will pass by 
 
 gift of the residuary personal estate, . • _ • 
 
 Resulting interests of personal estate pass by gift of the_ residue, . 
 
 5. Law of resulting trusts, as applicable to charitable gifts, # _ • 
 Where objects do not exhaust the estate, the surplus, instead of resulting, 
 
 will be applied to a like charitable object, . . . _ • 
 
 So if the value of the property increase beyond the wants of the charity, . 
 An interest will result even in charitable gifts, where intention appears 
 
 that the charity should take only to limited amount, 
 Exceptions in charity founded on precedent against principle. 
 
 194 
 
 195 
 
 195 
 196 
 
 196 
 
 197 
 198 
 
 198 
 198 
 
 199 
 199 
 
 Section II. 
 
 RESULTING TRUSTS UPON PURCHASES IN THE NAMES OF THIRD PERSONS. 
 
 I. Of purchases in the names of strangers, 
 Principle applicable to personalty, 
 Joint purchases in the name of a third person, 
 Joint purchases in the joint names of the purchasers. 
 Mortgage to two on a joint advance, 
 Copyhold grant to A. for life, and fine paid by B., 
 Purchase of a ship, . _ . 
 Purchase contrary to the Papistry acts, . . 
 Purchase in order to confer a vote, 
 Parol evidence, ..... 
 Purchase by agent, . . • 
 Proof of trust against defendant's denial, . 
 Of parol evidence after death of the nominal purchaser, 
 Of following trust money into land. 
 Resulting trust may be rebutted by parol, . 
 Subsequent declarations, .... 
 Effect of time, ..... 
 
 II. Of purchases in the names of children, 
 Advancement, . . • 
 The sonship a circumstance of evidence, . 
 Distinctions : — 
 
 1. Where child an infant, 
 
 2. Where interest is reversionary, 
 
 3. Purchase in joint names of father and son, . 
 
 4. Purchase of copyholds granted for lives successive, 
 
 5. Where child already provided for. 
 Where child is adult, 
 
 6. Where the father holds possession and child an infant, 
 
 7. The same when son adult, 
 Rebutter of the presumption. 
 Parol declarations. 
 Evidence on the part of the child. 
 Illegitimate children. 
 Daughters, wife, grandchild, nephew. 
 Purchase-money not paid, a debt from parent. 
 
 199 
 200 
 200 
 201 
 201 
 202 
 203 
 203 
 203 
 204 
 204 
 205 
 205 
 206 
 206 
 207 
 207 
 207 
 207 
 208 
 
 209 
 209 
 209 
 210 
 211 
 211 
 212 
 213 
 214 
 214 
 215 
 216 
 216 
 216
 
 SVlll 
 
 LEWIN ON THE LAW OF TKUSTS, ETC. 
 
 CHAPTER IX. 
 OF CONSTRUCTIVE TRUSTS. 
 
 Renewal of leases, . • • 
 
 Rule applicable to tenant for life, . 
 
 To yearly tenant, . 
 
 Tenant at will or at sufferance, 
 
 Agent of trustee cannot renew for his own benefit, 
 
 Trustee may not sell right of renewal, 
 
 Trustee's lien for expenses of renewal, 
 
 Expenses of tenant for life, 
 
 Contribution by annuitants. 
 
 Terms of assignment by the trustee, 
 
 Accounting for mesne rents and profits, 
 
 Remedies against purchasers, lessees, &c., 
 
 Limitation of time. 
 
 Case of trustee purchasing the reversion, . ,. ., 
 
 No tenant right where corporation has sold to an individual, 
 
 Factor, agent, &c., a constructive trustee. 
 
 Equitable waste, . . . • 
 
 Fraud in Attorney, 
 
 Agent of trustee not a constructive trustee, 
 
 Constructive trust as to title deeds, 
 
 Constructive trusts from notice. 
 
 Statute of frauds as regards trusts by operation of law, 
 
 . 217 
 
 . 218 
 
 . 219 
 
 . 219 
 
 . 220 
 
 . 220 
 
 . 222 
 
 . 222 
 
 . 223 
 
 . 223 
 
 . 224 
 
 . 224 
 
 . 224 
 
 . 225 
 
 . 225 
 
 . 225 
 
 . 225 
 
 . 226 
 
 . 226 
 
 . 227 
 
 . 228 
 
 . 228 
 
 PART II. 
 
 ESTATE AND OFFICE OF THE TRUSTEE. 
 
 CHAPTER X. 
 OF DISCLAIMER AND ACCEPTANCE OF THE TRUST. 
 
 I. Of disclaimer, ....... 232 
 
 No one compellable to be trustee, . . . . .232 
 
 Heir of a trustee, ........ 232 
 
 Disclaimer should be by deed, ...... 233 
 
 And by way of disclaimer and not of conveyance, . . .233 
 
 Whether devise of trust estates can be disclaimed in part, . . 234 
 
 Disclaimer by answer in Chancery, ..... 234 
 
 May be evidenced by a person's conduct, ..... 235 
 
 Trustee, after disclaimer, may act as agent to the trustees, . . 235 
 
 What disclaimer necessary for divesting the legal estate, . . . 235 
 
 Disclaimer of uses, ....... 236 
 
 Disclaimer of chattels, ....... 236 
 
 Disclaimer by /emecowerf, ....... 236 
 
 Effect of disclaimer as regards the co-trustees, . . . .237 
 
 II. Of acceptance of the trust, ...... 237 
 
 Where a trustee agrees by deed to execute the trust, a breach of trnst 
 
 creates a specialty debt, ...... 238 
 
 What acts will be construed an acceptance, . . . .239
 
 CONTENTS. 
 
 Whether taking out probate is acting, . . • • • 
 
 Vokintary interference with the assets, whether with or without taking out 
 probate, is acting, ....••• 
 Except the interference was plainly on some other ground, 
 Trustee may not act ambiguously, ..... 
 
 Executor becoming a trustee, ..•••• 
 
 Trustee on acceptance must inform himself of the state of the trust, 
 Trustee by mistake, ....••• 
 
 23'J 
 
 241 
 
 242 
 242 
 243 
 244 
 244 
 
 CHAPTER XL 
 OF THE LEGAL ESTATE IN THE TRUSTEE. 
 
 Section L 
 of vesting the legal estate in the trustee. 
 
 What words will vest the legal estate in the trustee, 
 
 I. Under the statute of uses, 
 Special trusts not within the statute, 
 Trust to permit a person to receive the rent. 
 Charge of debts, . . • • 
 To permit him to receive or to pay him, . 
 
 II. What quantity of estate will be vested in the trustee. 
 
 The trustee will, if possible, take an estate sufficient for the execution of 
 the trust, ....•••• 
 Implied devise in the word " trustee," ..... 
 Trust to sell confers a fee, ....•• 
 
 Limitation to two trustees and heir of survivor, .... 
 The estate will not be greater than is required for the purposes of the trust. 
 Uses limited in remainder upon the partial trusts will be executed, 
 Harton v. Harton, ...••••• 
 Hawker v. Hawker, ...•••• 
 
 Warter v. Hutchinson, ...♦••• 
 Late Will Act, ....•••• 
 
 Section II. 
 
 THE PROPERTIES AND DEVOLUTION OP THE LEGAL ESTATE. 
 
 I. At common law, ....•' 
 
 Freehold estate in the trustee is liable to curtesy, dower, &c.. 
 Personal estate liable to forefeiture for the ofifence of the trustee 
 Whether term in a trustee requires a prerogative probate. 
 May be taken in execution for debt of the trustee, semble, 
 Assets a species of trust property at law, . 
 Legal estate may be conveyed or devised by the trustee, 
 In what cases it passes by a general devise, 
 Charge of debts, &c., will exclude the trust estate, 
 What expressions will or will not do so, . _ . 
 Distinction as to legal estate in mortgages passing, 
 Poiver of the trustee in equity to devise the trust estate, 
 Whether a devisee can execute the trust, . . _ 
 
 Estate after contract for sale passes by a general devise, where 
 
 trust estate would not, 
 Legal estate is subject to legal burthens, . 
 Trustee, the person to bring an action at law. 
 To appoint steward of a manor or present to a church. 
 To prove in bankruptcy, . . . ■ 
 
 Of voting for coroners, (See note p. 593,) 
 
 24G 
 246 
 247 
 248 
 248 
 249 
 249 
 
 249 
 250 
 250 
 251 
 252 
 253 
 255 
 256 
 ,257 
 259 
 
 260 
 260 
 260 
 260 
 261 
 261 
 262 
 262 
 263 
 264 
 264 
 265 
 266 
 
 268 
 268 
 269 
 269 
 269 
 269
 
 XX 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 For members of Parliament, ...••• 
 
 Trustee liable to rates, ...■••• 
 Trustee pays fines of copyholds, ....•• 
 
 Mav be bankrupt, if he trade as trustee, . . ' > 
 
 11. Of the legal estate in the trustee as regards the construction of cer- 
 tain statutes, ....•••• 
 
 Of the Bankruptcy Act, . . . . ; • •« 
 
 The legal estate, in the case of a bare trust, does not vest in the assignees, 
 
 Nor the property into which the trust estate may have been converted, . 
 
 In whose name actions for recovery of the trust estate from the assignees 
 
 must be brought, ....... 
 
 If trust estate cannot be traced, the representative of the trust must prove 
 for the value, . . . . ._ • _ . 
 
 When the bankrupt has an interest, the legal estate vests in the assignees 
 as a general rule, ....... 
 
 Effect of the clause relating to property left in possession of the bank- 
 rupt, ......... 
 
 Of the Insolvent Act, ....... 
 
 Of judgments against the trustee, ...... 
 
 270 
 271 
 272 
 272 
 
 273 
 273 
 
 274 
 274 
 
 275 
 
 276 
 
 276 
 
 277 
 278 
 278 
 
 Section III. 
 
 WHAT PERSONS TAKING THE LEGAL ESTATE WILL BE BOUND BY THE TRUST. 
 
 Heir and executor, . 
 
 Devisee, .... 
 
 Assignees, .... 
 Dowress, tenant by the curtesy, creditors, &c., 
 Forfeiture, .... 
 Escheat, .... 
 Escheat in copyholds, 
 In customary freeholds, 
 Equity of redemption. 
 Escheat and Forfeiture Act, 
 Trustee Act, 1850, . 
 Outlawi-y of the trustee, 
 Bankruptcy of the trustee, . 
 Disseisor not bound by the trust, . 
 
 279 
 279 
 279 
 
 279 
 280 
 280 
 283 
 283 
 284 
 285 
 286 
 287 
 287 
 287 
 
 CHAPTER XII. 
 GENERAL PROPERTIES OF THE OFFICE OF TRUSTEE. 
 
 I. A trustee having accepted the oflBce cannot renounce 
 So an executor, .... 
 Though he may not have proved, . 
 ^ II. Trustee cannot delegate the office, . 
 Unless the settlor so directed. 
 Trustee acting as agent, 
 
 Delegation allowed where moral necessity for it. 
 Trustee not required to take security. 
 How trust money to be transmitted, 
 Payments at bank must be to account of trust. 
 Rule at law as to liability of executors, . 
 Delegation of discretionary trust void. 
 Even to a co-executor or co-trustee, 
 A power does not pass with the estate, '. 
 Delegation distinguished from appointment of an attorney 
 
 111 Lo-trustees exercise a joint office, . 
 In public trusts the majority binds. 
 
 it, 
 
 289 
 289 
 290 
 290 
 291 
 292 
 292 
 295 
 295 
 296 
 296 
 296 
 297 
 297 
 297 
 297 
 298
 
 CONTEXTS. XXI 
 
 299 
 
 IV. On death of one trustee the office survives, . 
 Though there be a power of appointment of new trustees, . . ' ^ao 
 
 V. A trustee not liable for the acts of his co-trustee, . . * onA 
 Not responsible for having joined in receipts, . . _ • • 304 
 Onus probandi lies on each trustee to prove he did not receive the money, d05 
 Is liable for joint receipts if money be improperly raised, . . ' q2« 
 Must not let it lie in the hands of a co-trustee, . . • * o? a 
 Executor liable for joining in receipts, . . . • " qTa 
 Lord Northington's doctrine in Westley v. Clark, . . . . diU 
 Lord Harcourt's opinion that an executor is liable to creditors, but not to 
 
 legatees, . . • • '...,' ' * ?i i 
 
 Executors liable for joining in drawing or indorsmg bills, . . J,. 
 
 Not liable where joining was as necessary as in case of trustees, . . 314 
 
 Must see that the act is in accordance with the trust, . . ' qT « 
 
 Must not leave the money in the hands of the co-executor, . * oi a 
 
 Not answerable for so much as was well applied, . . . ' V\c 
 
 Co-administrators on same footing as co-executors, . • • 31b 
 
 Liability of trustee for concealment of breach of trust by a co-trustee, . 317 
 
 Indemnity clauses, . . • • • • • * qiq 
 
 VI. Trustee can derive no advantage from the trust, . . .318 
 Not entitled to the game, ...•••• 318 
 Or to present to an advowson, ....•• 318 
 Cannot buy up debts, . • • • • • * o! q 
 How far mortgagee regarded as a trustee, . . • • ' o! q 
 Trustee trading with the trust estate must account for the profits, . 319 
 
 Must not be receiver with a salary, . . • ex.- x. •' 
 Trustee who is a factor, &c., cannot make a profit in the way of his busi- 
 ness from the trust, ...•••• 320 
 Case of solicitor trustee, . . > • • • • ^j^ 
 Attorneys, guardians, &c., in the same position as trustees, . • 3Z0 
 Trustee may derive an accidental advantage, . • • • 321 
 Purchaser dying without heir after payment of purchase-money, and before 
 
 conveyance, . . • • • • • ' 099 
 
 Of mortgagor dying without heirs, ..... ^^^ 
 
 0? cestui que trust aXiami&^iov Monj, . . . . • 323 
 
 Whether on creation of trust in fee there can be any reverter to the creator 
 
 of the trust, . . . • . • . • • • „^ 
 
 Trustee cannot enforce his beneficial interest in equity, . . . ^^^ 
 
 May obtain possession at law, . . . • • • ^^^ 
 
 On death of cestui que trust of a chattel without next of kin, the Crown 
 
 entitled, ......•• 324 
 
 CHAPTER XIII. 
 
 DUTIES OF TRUSTEES OF CHATTELS PERSONAL. 
 
 Section I. 
 
 OF REDUCTION INTO POSSESSION. 
 
 There must be no delay in getting in choses en action, . • _ '090 
 
 Executor must not allow assets to remain out upon personal security, . 328 
 May upon mortgage, ...•••• ^^" 
 
 Section II. 
 
 AS TO THE SAFE CUSTODY OF THE CHATTEL. 
 
 Trustees must exercise same care as a man would for himself, . • 332 
 
 Robbery of the trust property, ...••• 332
 
 332 
 332 
 
 332 
 3B4 
 334 
 336 
 337 
 
 ^xii LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 Insurance of leaseholds, . • _ • .', , t, i 
 
 Money may be deposited temporarily in a responsible banU, 
 
 The deposit must be to the account of the trust, . 
 
 Must not be put out of the control of the trustee, . 
 
 Or under the sole control of the co-trustee, . _ • 
 
 Responsible for failure of bank if he ought to have invested, 
 
 Mixing trust fund with private property, . 
 
 Section III. 
 
 OF INVESTMENT. 
 
 As to the proper investment of trust money, . • • * 0-7 
 Trustee may not lend on personal security, . • • '000 
 Unless expressly authorised, . • • • • • ^^° 
 A power to lend on personal security does not extend to an accommoda- 
 tion, m 
 
 Power to lend with consent, ...••• ^*^ 
 
 Investment in trade, ...•••• 340 
 
 Loan by way of annuity, . . • • •. T i ' oTi 
 
 On personal security where it should have been real security or stock, . d4i 
 Trustee may not invest on stock of any private company, . .341 
 
 Exchequer bills are government securities, .... 342 
 
 Whether he may invest on mortgage, ..... 342 
 
 Mortgage to replace stock and pay interim dividends, . . . 344 
 
 Points to be attended to in loans on moitgage, .... 345 
 
 Value of the security, . . • • • • • ^^^ 
 
 In loan of trust money the trust kept out of sight, . . . 346 
 
 When authorized to lend on real estates in England, may now lend on 
 
 estates in Ireland, 
 Investment on leaseholds for lives. 
 On leaseholds for years. 
 Purchase of house property. 
 Copyholds for lives. 
 Second mortgage, . 
 Mixing trust money in mortgage, 
 Mortgage of a reversion, 
 Loan upon a judgment, 
 Safest investment (where no power) in 3 per cent. Bank Annuities, . 351 
 
 Other government securities, ...... 352 
 
 Where successive estates limited, government securities other than the 3 
 
 per cent, must be converted into that fund, . . . 352 
 
 Tenant for life must refund what surplus interest he has received, . 353 
 
 No conversion directed where stock is devised specifically, . . 354 
 
 Investment in 3 per cent, reduced, ordered by court under special circum- 
 stances, ........ 354 
 
 Mortgages need not be called in, . . . . . . 354 
 
 Assets in India may be invested on the securities of the company, though 
 
 yielding 10 or 12 per cent., ..... 355 
 
 Trustees neglecting direction to purchase stock answerable for the amount 
 
 that might have been purchased, ..... 355 
 
 Trustees selling out improperly liable to cestui que trv^t, at his option, for 
 
 specific stock or proceeds, with interest at 5 per cent., . . 356 
 
 Trustees must not put the fund under the control of one of themselves 
 
 singly, ........ 357 
 
 Section IV. 
 
 LIABILITY OF TRUSTEES TO PAYMENT OF INTEREST. 
 
 Trustees charged with interest for improper retainer, . . . 358 
 
 So executors, ........ 358 
 
 347 
 349 
 349 
 349 
 350 
 350 
 350 
 350 
 350
 
 CONTENTS. 
 
 SXlll 
 
 And assignees of bankrupts, &c., . 
 
 Delay may be explained, .... 
 
 No excuse that they did not use the money. 
 
 Formerly an executor was considered entitled to use the assets, 
 
 At least where solvent, .... 
 
 Unless assets specifically bequeathed, 
 
 Rule general now that executor must account for assets,^ 
 
 Where trust money used in trade cestui que trust may claim either 
 
 or the actual profit, . . . 
 
 General rate of interest 4 per cent.. 
 Under what circumstances compound interest charged, 
 Trustee charged 5 per cent, where gross misconduct. 
 Whether simple or compound interest chargeable where moneys 
 
 trade, ..... 
 
 Where accumulation directed, compound interest. 
 Time from which interest charged. 
 Interest on money lost that never came to hand, . 
 
 interest 
 
 used in 
 
 .S59 
 359 
 360 
 360 
 360 
 360 
 3G0 
 
 361 
 361 
 361 
 362 
 
 363 
 364 
 364 
 364 
 
 Section V. 
 
 OF THE DISTRIBUTION OF THE TRUST FUND. 
 
 Mistake Is at the risk of the trustee, .... 
 
 Advice of counsel, ...•••• 
 
 Suit, . . . . . • • . • 
 
 Cestui que trust a feme covert whose husband is bankrupt or insolvent, 
 
 Equity to settlement, . . • • _ • 
 
 Collusive reduction into possession o^ feme's chose en action, 
 
 Authority from cestui que trust to receive, 
 
 Genuineness of the authority. 
 
 Payment to an infant, 
 
 Payment to a partner, 
 
 Release, 
 
 Act for the relief of trustees, 
 
 365 
 366 
 367 
 369 
 370 
 370 
 372 
 372 
 373 
 373 
 373 
 376 
 
 CHAPTEK XIV. 
 
 DUTIES OF TRUSTEES OF RENEWABLE LEASEHOLDS. 
 
 I, In what cases the obligation to renew is imposed, . . . 
 No such obligation from mere circumstance of successive estates limited. 
 Mere interposition of trustee will not create the obligation, 
 Nor the circumstance that the settlement was on marriage. 
 If renewable leaseholds be articled to be settled, the court inserts a clause 
 
 for renewal, . . . . • 
 
 Direction to renew may be in the form of a power, 
 
 II. In what manner the fines upon renewals are to be levied. 
 Where the fines are directed to be raised from " rents and profits," and the 
 
 leaseholds are for years, .... 
 
 Fines to be levied out of rents and profits or by mortgage. 
 Where the leaseholds are for lives or years determinable on lives, 
 Mode lately adopted by the court for raising the fines, 
 Of raising fines by insurance, .... 
 
 Power of charging freeholds for raising the fines, . 
 Who shall have the rents applicable to fines where no renewal can be ob- 
 tained, . . . . . _ • 
 Mode of redress where rents applicable to fines not levied. 
 Case of direction to renew and fund for raising the fines not specified, 
 Mortgage seldom feasible, ...... 
 
 383 
 383 
 
 384 
 385 
 
 385 
 386 
 386 
 
 386 
 387 
 388 
 390 
 391 
 391 
 
 392 
 392 
 393 
 393
 
 XXIV 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 ^Sf:?::r!^^^'^s between- tenantVor life 'and remainder.an, 
 Canons laid down in Nightingale v.LawsoD, • ; 
 
 How rale of contribution to be applied to leaseholds for lives, 
 Where no trustee interposed tenant for life is trustee, . 
 Receiver appointed where tenant for life threatens not to renew, 
 No suit for compensation until after death of tenant for hfe. 
 Admission fines to copyholds, . . • • 
 
 393 
 395 
 396 
 398 
 402 
 402 
 402 
 402 
 
 CHAPTER XV. 
 
 DUTIES OF TRUSTEES TO PRESERVE CONTINGENT 
 REMAINDERS. 
 
 Forms in which settlements containing such a trust are drawn, . 
 What duties imposed in each form, ', ' ' * 
 
 I Duties until the eldest son has attained twenty-one, . 
 Imperative upon the trustees not to destroy the contingent remainders, 
 Though the settlement was voluntary, .... 
 Remedy where the remainders have been destroyed, _ . 
 Collateral heir of the husband not entitled to compensation. 
 Heir apparent not entitled during the lifetime of the father, 
 Court has no jurisdiction to destroy the .-emainders. 
 Exceptions in Piatt v. Sprigg and Bassett v. Clapham, . 
 
 II. Duties after the eldest son has attained twenty-one. 
 Destruction of remainders matter of discretion, 
 Proper, where object is to resettle estate on marriage of eldest son. 
 Improper, where no purpose, or none that is reasonable, . 
 Of distinction between settlements and wills. 
 Effect of the Fines and Recoveries Act, . . . 
 
 Contingent remainders no longer destructible by forfeiture, surrender, 
 merger, ....••• 
 
 . 404 
 
 . 404 
 
 . 405 
 
 . 405 
 
 . 406 
 
 . 406 
 
 . 406 
 
 . 406 
 
 . 407 
 407, 408 
 
 . 408 
 
 . 408 
 
 . 409 
 
 . 409 
 
 . 410 
 
 . 411 
 
 413 
 
 CHAPTER XVI. 
 
 DUTIES OF TRUSTEES FOR SALE. 
 
 Section I. 
 
 GENERAL DUTIES OF TRUSTEES FOR SALE. 
 
 May sell without application to the Court, 
 
 Must consult the advantage of the cesiuis que trust, 
 
 Each trustee responsible, ..... 
 
 Trustees allowed reasonable time to sell, . 
 
 May not lease, ...... 
 
 Nor, as a general rule, mortgage, .... 
 
 Trust to mortgage -will not authorize a sale. 
 
 Nor a power of sale a partition, .... 
 
 Sale under usual power in settlement, . . , 
 
 Special cases in powers of sale, .... 
 
 Raising portions, ...... 
 
 Should ascertain value of the estate. 
 
 And whether good title can be made. 
 
 Where the estate is settled, may not sell the timber exclusively, 
 
 May sell by auction or private contract. 
 
 May employ agents, ..... 
 
 If sale by auction, proper advertisements must be given, . 
 
 414 
 414 
 415 
 415 
 416 
 416 
 417 
 417 
 417 
 419 
 420 
 421 
 421 
 421 
 422 
 422 
 422
 
 CONTENTS. 
 
 XXV 
 
 Of conditions of sale, 
 
 Of selling in lots, . 
 
 Of buying in. 
 
 Of auction duty, 
 
 Of letting into possession, . 
 
 Of the conveyance, 
 
 Of covenants, 
 
 Attested copies and covanant for production. 
 
 Sale of leaseholds, .... 
 
 Of sale by mortgagee under a power. 
 
 As to cestuis que trust joining in the conveyance, 
 
 Trustees bound to answer inquiries, 
 
 Custody of vouchers, 
 
 Land discharged when money raised. 
 
 423 
 423 
 423 
 424 
 424 
 424 
 425 
 425 
 426 
 427 
 427 
 427 
 428 
 428 
 
 Section II. 
 
 POWER OF TRUSTEES FOR SALE TO SIGN DISCHARGES. 
 
 Trust for sale for payment of debts, ..... 
 
 Sale of more than the purpose requires, ..... 
 
 Sale of estate charged with legacies not yet payable, 
 
 Principle of seeing to the application of purchase-money. 
 
 Trust to sell implies power in some one to sign discharges. 
 
 Case of infant cesttds que trust, ...... 
 
 Special trust declared of the proceeds of the sale. 
 
 Power to sell and invest in new purchase, .... 
 
 Trust to lay out and invest, ...... 
 
 Trust to pay debts, ....••• 
 
 Trust to pay scheduled debts or legacies, . . . • 
 
 Power to sign receipts, a question of intention at date of the instrument of 
 
 trust, .....♦••• 
 Forbes v. Peacock, ....••• 
 
 Cases upon power to give receipts where a testator merely charges an 
 
 estate with payment of debts, ..... 
 
 1. Devise to trustees subject to a charge of debts, 
 
 2. Devise to a person beneficially subject to a charge of debts, 
 
 3. Charge of debts and no devise, . . • • • 
 
 4. Charge of debts and a subsequent devise to a devisee who dies in the 
 testator's lifetime, ....••• 
 
 5. Charge of debts and the estate subsequently devised upon various 
 limitations, . . . • • _ • 
 
 General consideration of trustees' power to give receipts resumed, 
 
 Receipts of person to whom the trust has been delegated^ 
 
 Receipts of trustees appointed by the court, 
 
 Receipts after breach of trust. 
 
 Suggestions, where no power of signing receipts, 
 
 New principle suggested, . 
 
 Cestui que trust abroad, 
 
 Receipts of executors, 
 
 Notice of the will, . 
 
 Fraud, 
 
 Sale for nominal consideration, 
 
 Sale by executor for payment of his own debt, 
 
 For other private purposes. 
 
 Sale of specific chattel, and notice that debts have been paid. 
 
 Payment to executor who will probably misapply the money, 
 
 Payment after long interval from testator's death. 
 
 Sale by executor's banker, . . • • 
 
 Who may impeach the sale, . . • • 
 
 Effect of time, ....•• 
 
 428 
 429 
 430 
 430 
 431 
 432 
 432 
 433 
 433 
 434 
 435 
 
 436 
 437 
 
 440 
 440 
 443 
 
 444 
 
 447 
 
 447 
 448 
 449 
 449 
 450 
 451 
 452 
 453 
 453 
 454 
 455 
 456 
 456 
 457 
 458 
 458 
 458 
 459 
 459 
 459
 
 XXVI 
 
 LEWIN ON THE LAW OF TKUSTS, ETC. 
 
 Section III. 
 
 OF PURCHASES BY THE TRUSTEES OF THE TRUST PROPERTY. 
 
 Principle of the rule that trustees cannot purchase, 
 
 Lord Rosslyn's opinion, •.•,,* 
 
 Trustees cannot buy as agents for otners, . 
 
 Or employ an agent to buy for themselves. 
 
 Cannot lease to one of themselves, . • • • 
 
 Trustee who has disclaimed, .* , ' . 
 
 Trustees may purchase from cestui que trust, • „ ' ,. , . 
 
 But the rSon of trustee and cestue que trust mus first be dissolved . 
 
 fnstances where purchases by trustees from cestm que trust have been 
 
 Saidfharcei^i«'5 que trust 'solicitor must be specially authorised to deal 
 with the trustee, 
 
 Where creditors, all must join, . • 
 
 Court will not authorise trustee to bid, 
 
 Case of infant cestuis que trust, . • 
 
 Rule applicable to executors, assignees, &c., . 
 
 Of the terms upon which the sale will be set aside. 
 
 Cestui que trust may recover specific estate, . 
 
 Allowances will be made for improvements and repairs, . 
 
 Exception where actual fraud, . \ . ' e ^' 
 
 Case of purchase-money paid into court ind a rise ot stock. 
 
 Immediate conveyance ordered, .... 
 
 Titles of lessees not prejudiced, .... 
 Cestui que trust may pray a resale. 
 
 Estate will be put up at the purchase-money, . . 
 
 Expense of repairs and improvements will be added to the purchase-money, 
 
 As to resale in lots, ..... 
 
 Any creditor may insist on a resale, . . . ^ 
 
 Case of subsequent sale by the trustee to purchaser without notice 
 Case of resale of shares in mines, .... 
 
 Of the costs of suit, . . . _ • 
 
 Within what time cestui que trust may set aside the sale, . 
 Laches not imputed to femes covert and infants, . 
 Not to creditors in same degree as to individuals, ._ 
 No laches where cestui que trust was ignorant of his right, 
 Or was in distress, ...... 
 
 Of confirmation of the sale, .... 
 
 460 
 461 
 462 
 462 
 462 
 462 
 463 
 463 
 
 464 
 
 464 
 
 464 
 
 465 
 
 465 
 
 465 
 
 465 
 
 466 
 
 466 
 
 466 
 
 467 
 
 467 
 
 467 
 
 467 
 
 468 
 
 468 
 
 468 
 
 . 469 
 
 / 469 
 
 . 469 
 
 . 469 
 
 . 470 
 
 . 471 
 
 . 471 
 
 . 471 
 
 . 471 
 
 . 471 
 
 CHAPTER XVII. 
 
 DUTIES OF TRUSTEES FOR PAYMENT OF DEBTS. 
 
 Trust created by will, . . . . . . .474 
 
 By act inter vivos, ........ 474 
 
 1. Where person is not a trader, ..... 474 
 
 Insolvent Debtor's Act, . . . . . . .475 
 
 Trust attended with fraud, . . . . . . .476 
 
 Voluntary trust, . . . . . . . .476 
 
 Terras of the composition must be observed, .... 476 
 
 2. Where person is a trader, ...... 477 
 
 Bankruptcy Act, ........ 477 
 
 Creditors acquiescing, . . . . . . .479 
 
 Late act allows a composition, ...... 479 
 
 Trader may assign part of his property, ..... 480 
 
 Division of trusts for payment of debts, ..... 480 
 
 1. Irrevocable trusts, . . . . . . . 481 
 
 2. Revocable trusts, . . . , . . .481
 
 CONTENTS. 
 
 XXVll 
 
 Duties of trustees for payment of debts, 
 
 What debts are to be paid, . 
 
 Debts barred by Statute of Limitations, 
 
 Infants' debts. 
 
 Mortgage witli covenant, . 
 
 Creditors to come in within a certain time, 
 
 Discretion given to trustees, 
 
 Order of payment, . 
 
 Creditors and legatees. 
 
 All creditors 'paid pari passu,^ 
 
 Specialty creditors, . 
 
 Trustee who is also executor, 
 
 Allowance of interest, 
 
 Specialty debts. 
 
 Bond creditors, . . • 
 
 481 
 481 
 484 
 485 
 485 
 486 
 486 
 487 
 487 
 488 
 488 
 488 
 489 
 491 
 491 
 
 CHAPTER XVIII. 
 
 DUTIES OF TRUSTEES FOR CHARITIES. 
 
 Charities either in the hands of trustees or incorporated, . 
 Prefatory remarks on the visitatorial power. 
 Distinction between original endowment and new donations. 
 The Lord Chancellor in certain cases the visitor, . 
 Duties of trustees for charities, .... 
 
 Must not divert the fund to other charitable purposes, ; 
 Chapels, ....... 
 
 Trust in aid of rates, ..... 
 
 Trust for maintaining the worship of God, 
 Appointment of new trustees, .... 
 
 Meeting-house, ...... 
 
 A corporation with power of making bye-laws, 
 
 "Whether Court can sanction aberration from founder's intention 
 
 No total alteration without authority of Parliament, 
 
 The application of the fund may in certain cases contravene the 
 
 the endowment. 
 Free Grammar School, 
 Grammar School Act, (3 & 4 Vict. c. 77) 
 " Finding a master," 
 " Relief of poor," . 
 " Repairing," 
 
 Augmentation and reduction of salaries. 
 Loans, .... 
 
 Retainer of charity revenue. 
 
 Of alienations of the charity estate. 
 
 Recent charity Acts, 
 
 Accumulations, 
 
 Trustees cannot lease the charity lands to one of themselves. 
 
 As to discretion of taking fines or reserving rents upon leases. 
 
 Of inadequate consideration for the lease. 
 
 Of unreasonable extent of the term. 
 
 Of husbandry or farm leases. 
 
 Leases on lives, 
 
 Of building leases, . 
 
 Foregoing rules subject to donor's intention to the contrary. 
 
 Improvements by lessees, ..... 
 
 Disabling effect of the Charitable Trusts Amendment, . 
 
 letter of 
 
 492 
 492 
 494 
 495 
 495 
 495 
 496 
 496 
 497 
 498 
 498 
 498 
 499 
 499 
 
 499 
 499 
 500 
 501 
 501 
 501 
 502 
 502 
 502 
 502 
 504 
 504 
 505 
 505 
 506 
 507 
 508 
 509 
 510 
 510 
 511 
 511
 
 XXVUl 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 CHAPTER XIX. 
 
 THE POWERS OF TRUSTEES. 
 Section I. 
 
 OF THE GENERAL POWERS OF TRUSTEES. 
 
 Powers at law distinguished from those in equity, 
 
 Rule in the simple trust, . . . • ■ 
 
 Rule in the special trust, . . _ • 
 
 Trustee may exercise discretion under circumstances, _ . 
 
 Trustee may do without suit what is compellable by suit, 
 
 Repairs, .... 
 
 Cutting timber, 
 
 Opposing bill in Parliament, 
 
 Insurance, .... 
 
 Executor may appropriate a legacy, 
 
 May allow maintenance to infant out of the interest of his legacy, 
 
 And, under certain circumstances, out of the principal, . 
 
 May sink part of the capital for infant's advancement, where he could not 
 for his maintenance, ....... 
 
 Cannot apply principal where limitation over, .... 
 
 Except the limitation be by way of survivorship among the children them- 
 selves, ........ 
 
 Has power to release or compound debts, ..... 
 
 Whether a trustee mortgagee can release part of the land in mortgage, . 
 
 May reimburse himself a payment made in his own protection as trustee. 
 
 May grant reasonable leases, ...... 
 
 Power of varying securities, ...... 
 
 Case of suit instituted, ....... 
 
 Case of suit and no decree, ...... 
 
 Section II. 
 
 OF THE SPECIAL POWERS OF TRUSTEES. 
 
 I. Of the different kind of powers, . - ' . . 
 Distinction between legal and equitable powers, .... 
 Equitable powers whether annexed to the estate or simply collateral. 
 Distinction between mere powers and powers coupled with a trust. 
 Between strict and directory powers, 
 
 II. Of the construction of powers. 
 Power to A. and B. and " their heirs," 
 To A. and his '' assigns," ..... 
 Power indicating personal confidence to A. and his " executors," 
 To " executors," " sons in law," "trustees," 
 To trustees and the " survivors of them," . 
 Power during continuance of the trust, • . . . . 
 
 III. Of the effect of disclaimer, assignment, and survivorship of the 
 estate, . 
 
 Effect of disclaimer opon powers, . 
 
 Of assignment of the estate, ..... 
 
 Whether power will remain in trustee after alienation of the estate, 
 
 Case of real and personal estate blended together, 
 
 The Court may sanction the severance of the estate from the powers 
 
 Of SMr»u-or.9/itp among the trustees, . - . , ' 
 
 [Remarks upon powers before the Statute of Uses, '. 537 
 
 Survivorship where power given to the trustees by name, . ' 
 
 Powers not annexed to the trust, •....* 
 
 IV. Of the control exercised by the Court over powers, 
 
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 note (1)] 
 
 . 637 
 
 . 538 
 
 . 538
 
 CONTENTS. xxix 
 
 The Court will not control mere powers, ..... 538 
 
 Except there be fraud, ....... 543 
 
 Or suit has been instituted, ...... 544 
 
 CHAPTER XX. 
 
 OF ALLOWAXCES TO TRUSTEES. 
 
 Sectiox I. 
 
 ALLOWANX'ES FOR TIME AND TROUBLE. 
 
 No allowance in general for time and trouble, .... 545 
 
 Rule applies to executors, mortgagees, &c., .... 546 
 
 Trustees for absentees of West India estates are allowed a commission, . 546 
 
 Rate of commission in Jamaica, ...... 546 
 
 Mortgagees in possession of West India estates, , . . . 546 
 Of the commission allowed to executors in the East Indies, . . 547 
 Person constructively a trustee may be paid for his trouble in the manage- 
 ment of a trade, ....... 548 
 
 But not an express trustee, ...... 549 
 
 Solicitors and attorneys allowed expenses out of pocket only, . . 549 
 
 The author of the trust may order an allowance, .... 550 
 
 Where quantum not specified, ...... 551 
 
 Of contracts between trustees and cestui que trust for an allowance, . 551 
 
 The contract must be fulfilled to the letter, .... 553 
 
 Trustees may contract with the Coui't, ..... 553 
 
 Usury law prevents a mortgagee bargaining for compensation, . . 556 
 
 But he may save his own trouble by employment of agents, . . 556 
 
 Or a collector of rents, bailiff, attorney, or accountant, . . . 556 
 
 Section II. 
 
 ALLOWANCES TO TRUSTEES FOR EXPENSES. 
 
 Allowance will be made to trustee for all actual expenses, . .557 
 
 Though remunerated for his trouble besides, .... 558 
 
 Case of trustee who has not kept account of expenses, . . . 559 
 
 Trustee will be reimbursed a payment made for his own protection, . 559 
 
 Trustee's expenses a lien upon the estate, ..... 560 
 
 Trott V. Dawson, ........ 560 
 
 No Zten in favour of agents of the trustee, . . . .561 
 
 How expenses recoverable when no trust estate, .... 562 
 
 Claim against the cestui que trust personally, .... 563 
 
 Funds out of which expenses payable, ..... 564 
 
 CHAPTER XXI. 
 
 HOW A TRUSTEE MAY OBTAIN HIS DISCHARGE FROM THE 
 
 OFFICE. 
 
 I. May retire with consent of all the cestuis que trust, . . . 565 
 1? all he sui juris, ....... 565 
 
 II. May retire by virtue of a special power in the trust deed, . . 566 
 The usual power stated, ....... 566 
 
 Whether a new trustee actually such until the estate has been transferred, 567 
 
 Mode of vesting the trust estate, ...... 568 
 
 Construction of the power, ...... 570 
 
 January, 1858. — 3
 
 XXX 
 
 LEWIN OxN THE LAW OF TRUSTS, ETC. 
 
 Sharp V. Sharp, . • • 
 
 Meaning of the word " survivor, . 
 Meaning of the word " acting," • .-. „* 
 
 " Refusing or declining" includes " disclaiming, . 
 " Refusing or declining" means also after having acted, 
 Morris v. Preston, . • • • * 
 
 Power to tenant for life icitli trustee. 
 Trustee becoming bankrupt " unfit,'^ 
 Trustee resident abroad, . . • • 
 
 Two trustees cannot relinquish in favour ot one, . _ 
 Case of one trustee substituting more than one in his pi 
 One trustee cannot relinquish to the other, 
 Appointment of one trustee in the place of several, 
 Appointment of two trustees at once, 
 Appoinment of a cestui que trust, or near relation, as 
 Of severing a trusteeship, - . . • 
 
 Of powers of appointment of a directory character, 
 Power will be no protection where there is fraud. 
 Result where a new trustee is ineffectually appointed, _ 
 III. Trustee may get himself discharged by application 
 equity, .... 
 
 Where no new trustee can be found, 
 How application should be made, 
 Costs, . . . • • 
 
 Application by representative of deceased trustee 
 Complication of trusts by acts of tenant for life, 
 
 trustee 
 
 to a 
 
 court of 
 
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 PART III. 
 
 THE ESTATE OF THE CESTUI QUE TRUST. 
 
 CHAPTER XXII. 
 IN WHAT THE ESTATE OF CESTUI QUE TRUST CONSISTS. 
 
 Section I. 
 
 THE ESTATE OF CESTUI QUE TRUST IX THE SIMPLE TRUST. 
 
 1. The jus Jiabendi, or cest^l^s que trust right to the pernancy of the 
 
 profits, ........ 585 
 
 Entitled to the possession of lands, ..... 585 
 
 Except there be some interest in another person, . . . 586 
 
 Right to the possession recognized in equity only, not at law, . . 590 
 
 Lord Mansfield's doctrines, since overruled, .... 590 
 
 Possession of title deeds, . . . . . . .591 
 
 Cestui que trust qualified to be a juror, ..... 592 
 
 So, before late Game Act qualified to sport, .... 593 
 
 As to right of ces^wi gt/e fms/! to vote for coroner, . . . 592 
 
 Has right to vote at elections for members of Parliament, . . 593 
 Of his right to the possession of trust chattels, . . . .593 
 
 How usually empowered to receive dividends, .... 594 
 
 2, Of cestui que trust's jus clisjMiumdi, . - . . 595 
 
 Trustee's conveyance, ....... 596 
 
 Trustee to bar dower, ...'.'.'! 596 
 
 Intermediate trusts, ..*.!'*' 596
 
 CONTENTS. 
 
 Section II. 
 
 The estate of cestui que trust in the special trust . . . 597 
 
 Where only one cestui que trust, or all cestuis que trust of one mind, the 
 
 special trust same as a simple trust, .... 597 
 
 But special trust continues until election expressed, . . . 598 
 
 The special trust must be a lawful one, ..... 599 
 
 CHAPTER XXIII. 
 
 OP THE PROPERTIES OF THE CESTUI'S QUE TRUST ESTATE 
 AS AFFECTED BY HIS ACTS OR BY OPERATION OF LAW. 
 
 Section I. 
 
 Act, 
 
 inquiries. 
 
 OP ASSIGNMENT. 
 
 Form of assignment, 
 
 Power of equitable tenant in tail, 
 
 Summary of law before the Fines and Recoveries 
 
 Cautions in assignments of equitable interests. 
 
 Priority of charge from priority of notice. 
 
 The principle of the doctrine, 
 
 Distinction between real and personal estate. 
 
 Notice in respect of real estate, 
 
 Second incumbrancer giving notice but making no 
 
 Notice to one of several co-trustees, 
 
 Death of single trustee to whom notice given. 
 
 Notice to all the trustees, and all dying, . 
 
 Time of giving notice, 
 
 To whom notice should be given, . 
 
 Case of the fund being in Court, . 
 
 Notice to trustee where fund in Court, and neither 
 
 order, .... 
 
 Case where there is no trustee, 
 
 Section II. 
 
 OF TESTAMENTARY DISPOSITION. 
 
 How trust of freeholds to be devised, 
 Trust of copyholds, .... 
 
 Where no custom to devise the legal estate of copyholds. 
 Of customary freeholds, .... 
 Late Wills Act, ..... 
 
 Section HI. 
 
 OF seisin and disseisin. 
 
 Equitable seisin, ..... 
 Possessio fratris of a trust. 
 What is equitable disseisin. 
 Marquis of Cholmondeley v. Clinton, 
 
 Section IV. 
 
 OF DOWER AND CURTESY. 
 
 Dower and curtesy of a trust, 
 
 assignee obtains a stop 
 
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 621
 
 XSXll 
 
 LEWIN OX THE LAW OF TRUSTS, ETC. 
 
 Freebench, . . • • 
 
 What seisin reqiiired to give curtesy, 
 Curtesy where there is separate use, 
 Distiuction between dower and curtesy, 
 How curtesy came to be allowed, and not dower, 
 Late Dower Act, . . • • 
 
 Section V. 
 
 OF THE ESTATE OF A FEME COVERT CESTUI QUE TRUST. 
 
 1. In pure personal estate not settled to separate use, . 
 
 Equity to a settlement, ...•••• 
 Ki2;ht by survivorship, ...•••• 
 
 2. Equitable chattels real of feme covert, .... 
 Whether wife entitled to a settlement out of equitable chattels real, 
 Result of decisions, . • • _ • 
 
 Effect of getting in legal estate in wife's -^iquitable term, . 
 Estate by elegit in trust for a feme covert, .... 
 
 Mortgage term in trust for a feme covert, ..... 
 Equitable term in trust for separate use, ..... 
 
 3. Wife's equitable interest in lands of freehold or inheritance, 
 
 4. The wife's separate estate, ...... 
 
 General rule, ........ 
 
 General engagements of a feme covert in writing, 
 
 General engagements not in writing, ..... 
 
 Lord Brougham's exposition of the principles regulating the liability of 
 
 the separate estate, ....... 
 
 Ijord Cottenham's view, ....... 
 
 Result of judgments of Lord Brougham and Lord Cottenham, 
 Observations of V, C. Kindersley respectingye/we's verbal engagements, . 
 Case of clear contradiction of intention, ..... 
 
 Breach of trust by /e;ne cowr^, ...... 
 
 View of Lord St. Leonards in reference to breaches of trust by a feme 
 
 covert having a separate estate, ..... 
 
 Nature of the relief against the separate estate, . . . . 
 
 Where no power of anticipation, ...... 
 
 Stock settled to separate use, ...... 
 
 Creditors' suit after death of feme covert, ..... 
 
 Power of disposition by will of separate estate, .... 
 
 Separate estate undisposed of survives to the husband. 
 
 Arrears of separate estate, ...... 
 
 Case of feme covert non compos, ...... 
 
 Special consideration of separate use in reference to real estate, . 
 
 No acknowledgment needed of conveyance of real estate settled to separate 
 
 use, . . . . ' . 
 
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 646 
 
 Section VI. 
 
 JUDGMENTS AGAINST THE CESTUI QUE TRUST. 
 
 Writs of execution at common law. 
 
 Statute of Westminster, 
 
 Froni what time chattel interests in land bound, 
 
 Fieri facias as regards trusts, 
 
 Trusts not bound by it before execution sent out 
 
 Nor where legal estate not liable, . . ' 
 
 Equity of redemption, 
 
 Levari facias, 
 
 Whether equity can adopt the elegit bv analorry, 
 
 Trust at one time held not to be subject to ele""it 
 
 Secus now, . ^ ^ ' 
 
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 650 
 650
 
 CONTENTS. 
 
 xxxiu 
 
 Doctrine laid down by Sir J. Leach, . . . . . G52 
 
 Land to be converted into personalty not bound formerly by a judgment, 653 
 Judgment entered up against vendor after contract to sell, . . 654 
 
 Whether in case of conveyance upon trust to sell for limited purpose, 
 
 surplus proceeds bound by a judgment, .... C5G 
 
 Altered state of the law, ....... CoG 
 
 Practical result, ........ 657 
 
 How much of the estate might be taken in execution, . . . 657 
 
 Grounds on which he may come into equity, .... 658 
 
 Entitled to moiety only of a trust, ...... 658 
 
 But to entirety of equity of redemption, ..... 660 
 
 Case of trust by way of mortgage, ...... 661 
 
 Whether necessary before suit to take out actual elegit, . . .662 
 
 Bill of judgment creditor after the death of the conusor, . . . 663 
 
 Of execution against the trust estate under Statute of Frauds, . . 664 
 
 Whether equitable elegit where no legal elegit of a trust, . . 665 
 
 Statute of 1 & 2 Vict, c. 110, ss. 11, 13, 18, and 19, . . . 666 
 
 3 & 4 Vict. c. 82, . . . . . . , .668 
 
 18 & 19 Vict. c. 15, . ..... 669 
 
 Construction of the Ants, ....... 669 
 
 Consideration of the charging order provisions of the 1 & 2 Vict. c. 110, 669 
 
 1. By whom the charging order should be made, . . . 670 
 
 2. Charging order will be made without deciding on the quantum of 
 interest charged, . . . , . . .670 
 
 3. Bank, &c., bound to pay trustee notwithstanding charging order on 
 \xiiQr(i?,i oi cestui que trust, ...... 671 
 
 4. Proviso at end of s. 14 does not prohibit a suit for merelj protecting 
 interest charged, . . . . . . .671 
 
 5. Effect of charging order in reference to other incumbrances, . 671 
 Case of lands lying in a register county, ..... 672 
 Judgment postponed to subsequent purchase or mortgage without notice, 672 
 Case where subsequent purchaser or mortgagee has notice, . .672 
 
 Section VIL 
 of extents from the crown. 
 
 Trusts subject to extents, 
 May be sold under 25 G. 3, 
 Equity of redemption, 
 
 c. 35, 
 
 673 
 
 673 
 674 
 
 Section VIIL 
 
 of forfeiture. 
 
 Trusts not forfeitable for attainder at common law, 
 
 Forfeitable for treason by enactment, 
 
 Equities of redemption forfeitable. 
 
 Trusts for aliens forfeitable at common law, 
 
 Trusts for chattels forfeitable. 
 
 Forfeiture by tenant for life, 
 
 674 
 674 
 
 677 
 677 
 677 
 678 
 
 Trust not subject to escheat, 
 Burgess v. Wheate, . 
 
 Section IX. 
 OF escheat. 
 
 678 
 678 
 
 Section X. 
 
 OF descent OF THE TRUST. 
 
 Trust descends as the legal estate, 
 
 680
 
 XXxiv LEWIX ON THE LAAY OF TRUSTS, ETC. 
 
 Thougb there be lex loci, as gavelkind, . • • • ' 680 
 
 Possessio fratris o'i & ivxxsl, • • • • ' * gg^ 
 
 Proceeds from sale of gavelkind lands, . • • * ' gsi 
 
 Limitation to heirs as purchasers, . . • • • 
 
 Section XL 
 
 OF ASSETS. 
 
 Trusts of chattels always assets, . . V. t-i j* 
 
 Whether trusts of freeholds assets before Statute of Frauds, 
 Construction of that statute, . . . • 
 
 Late Act for more eflectual payment of debts, 
 Whether trusts of chattels are legal or equitable assets, . 
 Whether trusts in fee are legal or equitable assets, 
 Construction of late Act for more eflectual payment of debts. 
 
 681 
 681 
 684 
 685 
 685 
 688 
 691 
 
 CHAPTER XXIV. 
 
 CESTLTS QUE TRUST RELIEF AGAINST THE FAILURE OF THE 
 
 TRUSTEE. 
 
 Where the terms of the trust can be ascertained, equity follows the estate, 693 
 
 Trustee dying in the testator's lifetime or otherwise failing, . . 693 
 
 Direction to sell and trustee not named, ..... 694 
 
 Gift to separate use, and no trustee named, .... 694 
 If the trust be in form of a power, the Court, on failure of trustee, will 
 
 execute it, ....... • 694 
 
 Where rule to go by, the Court exercises the discretion for the trustee, . 696 
 
 [Construction of bequest to poor relations, . . 698, note (1.)] 
 How the Court will exercise the power where the settlor has laid down no 
 
 rule, ......... 699 
 
 In such a case the Court adopts the maxim that equality is equity, . 700 
 
 Words of "gift" and words of "power " distinguished, . . . 700 
 
 Upon trust for the children of A. as B. shall appoint, . . . 700 
 
 Upon trust to dispose amongst the children of A., ... 700 
 
 Discretion as to the objects of the power, ..... 701 
 
 In favour of what objects the Court will exercise a power imperative, . 703 
 
 Where^imraediate exercise contemplated, ..... 703 
 
 Where immediate exercise not contemplated, . . . .704 
 
 1. Where power testamentary, ...... -704 
 
 2. Where not merely so, ...... 704 
 
 How Court will execute power in favour of " relations," . . . 705 
 
 As to persons amongst whom, ...... 705, 
 
 As to shares in which, ....... 706 
 
 Case of power of selecting one of a class, . . . . .707 
 
 CHAPTER XXV. 
 
 RIGHTS OF CESTUI QUE TRUST IN PREVENTION OF A BREACH 
 
 OF TRUST. 
 
 I. Cestui que trust entitled to appointment of proper trustees and pro- 
 
 per number of trustees, . . . . . . 710 
 
 Of substitution of trustees on death, incapacity to discharge the office, &c.! 710 
 Vt trustees not answering description of " inhabitants," . . 711 
 
 Court will not dismiss trustee from caprice of cestui qxie trust, . .712
 
 CONTENTS. 
 
 Trustee substituted by the Court has not the special powers of the origi 
 nal trustee, ....... 
 
 Appointment of new trustee under Sir E. Sugden's Act, . 
 Under the Trustee Act, 1850, ..... 
 
 Under the Bankruptcy Act, ..... 
 
 Case of charitable trusts, ...... 
 
 Jurisdiction under 5 & G W. 4, c. 76, . 
 
 Charitable Trusts Act, ...... 
 
 II. Cestui que trust may compel trustee to the observance of any act of 
 
 duty, ....... 
 
 Sir J. Jekyll's dictum, that laches of trustee shall not prejudice cestui que 
 
 trust, ....... 
 
 Consideration of the recent Statute of Limitations, 
 
 Allen V. Sayer, ....... 
 
 Where tenant for life misapplies proceeds of renewable leaseholds, re 
 
 ceiver appointed, ...... 
 
 Case of trustee required to give security, .... 
 
 III. Cestui que trust may restrain trustee from committing a breach of 
 trust by injunction, ...... 
 
 And whether damage irremediable or not, .... 
 
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 713 
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 716 
 718 
 
 718 
 
 719 
 719 
 720 
 
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 723 
 
 723 
 723 
 
 CHAPTER XXVI. 
 
 REMEDIES OF CESTUI QUE TRUST IN EVENT OF A BREACH OF 
 
 TRUST. 
 
 Section I. 
 
 OF FOLLOWIXG THE TRUST ESTATE INTO HANDS OF A STRANGER. 
 
 General rule, . . . . . . . .724 
 
 I. If the alienee be a volunteer, ..... 724 
 Purchaser without notice from a purchaser with notice, . . . 726 
 Purchaser with notice from a purchaser without notice, . . . 726 
 How far purchaser bound by notice of a doubtful equity, . . . 727 
 
 II. No time bars a direct trust ; otherwise in a constructive trust, . 729 
 
 1. Of the bar in equity by analogy to a statute of limitation, . . 731 
 Period limited for recovery of lands is 20 years, .... 732 
 Ignorance or mistake of plaintifiF no excuse, .... 733 
 Time does not run in case of fraud undiscovered, .... 734 
 How statute must be taken advantage of, . . . . . 734 
 
 2. Of presumption of some act in bar of the plaintiff's claim, . . 735 
 Time within which the presumption arises, .... 735 
 
 Ground of Court's raising the presumption, .... 736 
 
 Waiver. Acquiescence, ....... 737 
 
 No presumption during ignorance or mistake, &c., . . . 737 
 
 Presumption cannot be taken advantage of by demurrer, . . . 738 
 
 3. Of the bar in equity arising from great public or private incon- 
 
 venience, ........ 739 
 
 Bar from length of time, ....... 741 
 
 Late Act for Limitation of Actions and Suits, .... 743 
 
 III. Of accounting for mesne rents and profits, . . . 750 
 Defendant prima facie must account from commencement of wrongful 
 
 title, . . . . . . . . .751 
 
 Several exceptions to the rule, ...... 752 
 
 Bill for relief followed by bill for account, ..... 752 
 
 Wording of the order, ....... 752 
 
 Liability of trustee for mesne rents and profits, .... 752 
 
 [The subjectof accounting for mesne rents and profits considered generally, 
 
 752, note (1.)]
 
 XSXVl 
 
 LEAVIN OX THE LAW OF T K U S T S, ETC. 
 
 Section II. 
 
 RIGHT OF ATTACHING THE PROPERTY IxXTO WHICH THE TRUST ESTATE HAS BEEX 
 WRONGFULLY CONVERTED. 
 
 General rule, •••••••• J?^ 
 
 " Money has no earmark," ...••• ij>' 
 
 Trust money mixed with trustee's money, . • • ' I^o 
 
 Following money into land, . • • * . * * l^~ 
 
 Whether cestui que trust can take the estate, or has only a lien, . . iQb 
 
 Section III. 
 
 OF CESTUl's que TRUST REMEDY AGAINST TRUSTEE PERSONALLY FOR COMPENSA- 
 TION. 
 
 Land tortiously sold, .....•• 763 
 
 Neglect to purchase stock, . . . • • ' t^"^ 
 
 Policy forfeited, , . . . • • • " ^^f 
 
 Person acting as trustee but not such, . . . . _ . 765 
 
 Trustee and his assets liable for damage to trust estate as for a simple 
 
 contract debt, . . . . • • • . < 65 
 
 Immaterial whether trustee was a gainer by the breach of trust or not, . 765 
 
 Or whether loss would have occurred had no breach been committed, . 766 
 
 Trustee not charged with imaginary values, &c., .... 766 
 
 Where co-trustees, all must be made parties, but each liable in toto, . 767 
 
 Corporators, ........ 767 
 
 As amongst the parties to the breach of trust the person benefited or the 
 
 contriver of the fraud suffers, ...... 768 
 
 Interest of party to a breach of trust may be stopped to make compensation, 771 
 
 Proof against estate of bankrupt trustee, ..... 771 
 
 How far trust debt barred by the certificate, . . . .772 
 
 Bankruptcy of co-trustees, ....... 773 
 
 Of ces/!a''s 5Me /rw.9i! concurrence in the breach of trust, . . . 773 
 Femes covert and infants cannot concur, . . . . .774 
 
 Coverture and infancy no protection in case of fraud, . . . 774 
 Feme covert bound by concurrence in regard to a fund settled to her sepa- 
 rate use, ........ 775 
 
 Of acquiescence, ........ 775 
 
 Fluctuating body, . . . . . . , .777 
 
 Creditors, ........ . 777 
 
 Of release and confirmation, . . . . . .777 
 
 Section IV. 
 
 OP REDRESS IN BREACHES OF TRUST BY TRUSTEES FOR CHARITIES 
 
 I. Mode of redress, .... 
 Of commissions under Statute of Charitable Uses, 
 52 Geo. 3, c. 101, or Sir S. Romilly's Act, 
 
 Points resolved upon that Act, ..... 780- 
 
 Acts appointing Commissioners of Inquir\ 
 Charitable Trusts Act, 1853, 
 Charitable Trusts Amendment Act, 
 
 II. Of the ex'/en^ of redress, .... 
 To what period of time the account of mesne rents and profits against 
 
 trustees of charities will be restricted, 
 
 1. Statutes of limitation not applicable, 
 
 2. How farpresumption applicable, 
 3._ liar arising from inconvenience, 
 
 RiSr"i?Tf ''''IT*"' *™'.^^^' ^"^ individuals in respect of implied notice, 
 ureacii ot trust by a parish , i i ? 
 
 Mode of attaching corporation property. 
 
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 786 
 
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 791
 
 CONTEXTS. 
 
 XXXVll 
 
 CHAPTER XXVII. 
 
 MAXIMS OF EQUITY FOR SUSTAINING THE TRUE CHARACTER 
 OF THE TRUST ESTATE AGAINST THE LACHES OR TORT OF 
 THE TRUSTEE. 
 
 Section I. 
 
 WHAT OUGHT TO BE DONE SHALL BE CONSIDERED AS DONE. 
 
 Money to be laid out on land shall be taken as land, and land to be turned 
 
 into money shall be taken as money, . . - . . 793 
 
 Money to be laid out on land is subject to curtesy, . . . 71i3 
 
 Whether subject to dower, . . . . . . .793 
 
 Not subject to escheat, ....... 795 
 
 Could not have been devised by an infant, .... 79G 
 
 Passes in will by description of "lands,"' ..... 796 
 
 Bound by judgments, &c., ....... 796 
 
 Not to be brought into hotchpot by child claiming an orphanage share, . 797 
 In what cases will go to heir of person upon whom the land is directed to 
 
 be settled, ........ 797 
 
 Will belong to heir claiming the money from a stranger, . . .797 
 
 Or claiming from the executor of his own ancestor, if any limitation of 
 
 the money be outstanding, ...... 798 
 
 Otherwise, if the money be " at home," ..... 800 
 
 Chichester v. Bickerstaff, . . . . . . .800 
 
 Pulteney v. Darlington, ....... 803 
 
 Money is " at home" when actually received, .... 804 
 
 Bequest of money to be laid out on lands to be settled to testator's right 
 
 heirs, ......... 805 
 
 Voluntary covenant to purchase lands to be settled to covenanter in fee, . 805 
 Direction for conversion, to create a notional conversion, must be impei-a- 
 
 tive, ......... 806 
 
 Cases of direction deemed imperative where the uses were exclusively ap- 
 plicable to real estate, . . . . . .806 
 
 Conversion at "the recjuest" of a party, ..... 807 
 
 Land to be turned into money passes by bequest of " personal estate," &c., 807 
 Alien, ......... 807 
 
 Charity, ......... 808 
 
 The conversion must be imperative, ..... 808 
 
 Implied conversion in bequests of wasting property to persons in suc- 
 cession, ........ 808 
 
 Intention to confer enjoyment in specie may be collected from the bequest, 809 
 Instances of the general rule, . . . . . 809-812 
 
 Rule where property not wasting, but of a class not authorised by the Court, 812 
 Direction for investment of personal estate and accumulation of income, 813 
 Devise of real estate upon trust to sell and invest proceeds and rents until 
 
 sale, ......... 813 
 
 Produce during first year from testator's death, . . . .813 
 
 Where funds are in the state they ought to be, . . . .814 
 
 Where the proper investment is made before the end of the year, . 814 
 
 Where the funds are not in the state they ought to be, . . .814 
 
 Discretion expressly given by the testator, . . . .815 
 
 Rents of devised estate, . . . . . . .816 
 
 Election, . . . . . . . . .816 
 
 Who may elect, . . . . . . . .816 
 
 Of infants, lunatics, and ^/I'/Hg.? coi'erf, ..... 816 
 
 Power of _/(?»ie coreri! over money-land, ..... 816 
 
 Special power of married women under Fines and Recoveries Act, . 817 
 
 Of remainder-men, ........ 818
 
 xssviu 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 Of several parties interested, 
 
 Of tenant in tail, 
 
 39 & 40 G. 3, c. 56, 
 
 Effect of Fines and Recoveries Act, 
 
 In what manner election may be mad( 
 
 Of presumption of election, 
 
 How election may be expressed, . 
 
 Money to be turned into lands may be pass 
 
 ed by will not attested, 
 
 Section II. 
 
 THE ACT OF THE TRUSTEE SHALL NOT ALTER THE NATURE OF CESTUl's 
 
 TRUST ESTATE. 
 
 Where conversion is wrongful, equity neutralizes it, 
 
 Trustee for a lunatic cannot convert, unless beneficial to lunatic himself, 
 
 Interest of lunatic's successors not consulted, 
 
 Heir ex parfe patcrnu has no equity against heir ex parte malerna, 
 
 Of payment of lunatic's debts out of his real estate, 
 
 Of fall of lunatic's timber, . 
 
 Of redemption of lunatic's mortgage debts. 
 
 Of actions in lunatic's name. 
 
 Of improvements, repairs, &c.. 
 
 Conversion will not be made unnecessarily. 
 
 Distinction between lunatics and infants, . 
 
 Purchases for intants can only be made s'nb conditione, 
 
 Timber cut on infant's land continues real estate, 
 
 Money paid in discharge of mortgage debts continues personalty, 
 
 Conversion allowable for necessary expenses, 
 
 Late AVills Act, .... 
 
 819 
 820 
 821 
 822 
 823 
 823 
 824 
 824 
 
 QUE 
 
 825 
 
 825 
 826 
 826 
 826 
 826 
 827 
 827 
 827 
 828 
 829 
 829 
 829 
 830 
 830 
 831 
 
 CHAPTER XXVIII. 
 
 OF STATUTORY ENACTMENTS FOR REMEDYING INCONVENI- 
 ENCES ARISING FROM THE DISABILITY OF THE TRUSTEE. 
 
 Statute of 7th Anne, c. 19, 
 
 Construction of Act, .... 
 
 Statute of 4 Geo. 2, c. 10, . 
 
 Lord St. Leonards' Act, (11 G. 4, & 1 W. 4, c. GO,) 
 
 Trustee Act, 1850, . 
 
 832 
 832 
 833 
 834 
 840 
 
 CHAPTER XXIX. 
 
 PLEADING AND PRACTICE IN REFERENCE TO THE LAW OF 
 
 TRUSTS. 
 
 Section I. 
 
 OF NECESSARY PARTIES. 
 
 1. General rule in suits by or against Strangers, 
 One of several cedtds que trust cannot foreclose or redeem alone. 
 Mortgagee commg to foreclose and mortgagor to redeem must make all 
 
 cestuis que trust parties. 
 Legal termor a necessary party, ..'*'' 
 Error in Lord Redesdale's Treatise as to trustees for creditors, '. 
 oinular error, . ^ ' 
 
 841 
 842 
 
 842 
 842 
 843 
 843
 
 CONTENTS. 
 
 XSXIX 
 
 Suits for specific performance, ...... 844 
 
 Marria^je articles, ........ 844 
 
 Representation specially constituted, ..... 844 
 
 2. Suits by parties interested, " inter se," .... 845 
 In suits by cestuis que trust against their trustees, all the latter necessary 
 
 parties, ........ 845 
 
 Rule the same though equities between them cannot be adjusted, . 845 
 
 Quasi-trustee a necessary party, *..... 84G 
 
 Stranger who has dealt with the trust fund without notice not a necessary 
 
 party, ........ 84G 
 
 Distinction between cases of a mei'e breach of trust and those of a " de- 
 lictum,'' . . . . . . . . 84G 
 
 Representatives of trustee who had no interest not necessary parties, . 847 
 
 Nor trustee who disclaims, ...... 847 
 
 Nor a trustee out of the jurisdiction, ..... 847 
 
 Nor representative of a deceased insolvent trustee, . . . 847 
 
 Nor trustee of an outstanding term, ..... 848 
 
 Nor trustee of a mere equity, ...... 848 
 
 Nor a trustee who has assigned, ...... 848 
 
 Nor a trustee who is a mere agent, ..... 84S 
 
 Trusteeship survives, . . . . . . .849 
 
 One of two classes of trustees may be sued, .... 849 
 
 All cestuis que trust necessary parties as a general rule, . . . 849 
 
 Cestuis que trtist abroad, ....... 849 
 
 Cestui que trust standing out process, . . . . .850 
 
 Or assigning his interest, ...... 850 
 
 Cestui que trust of an aliquot share, ..... 850 
 
 3. Exceptional cases. 
 
 Suit to recover a trust fund, ...... 850 
 
 Where cestuis que trust extremely numerous, some may sue on behalf of all, 851 
 So some may defend on behalf, &c., . . . . .851 
 
 Requisites to entitle some to sue, &c., . . . . ' . 851 
 
 What number sufficient to dispense with the strict rule, . . . 852 
 
 4. Special enactments and General Orders varying the practice, 30th 
 Order of 26th August, 1841, . . . . .852 
 
 Decisions thereon, ....... 852 
 
 32nd Order of 26th August, 1841, ..... 853 
 
 Decisions thereon, ....... 853 
 
 New I'ules as to parties under the 15 & 16 Vic. c. 86, s. 42, . . 854 
 
 General working of new rules, ...... 855 
 
 Decisions on rule 9, ...... . 855 
 
 47th section of 15 & 16 Vict. c. 86, . . . . . 856 
 
 51st section of same Act, ...... 856 
 
 Section II. 
 
 OF THE ORDER AND MANNER IN WHICH TRUSTEES AND CESTUIS QUE TRUST OUGHT 
 TO APPEAR UPON THE RECORD, AS WHETHER JOINTLY OR SEVERALLY AS 
 PLAINTIFFS OR DEFENDANTS. 
 
 Sir Anthony Hart's statement of the proper course, . . . 856 
 
 Trustees and cestuis que trust ought to join in defence, . . . 857 
 
 In suits "inter 56," cestuis cjxie trust in same interest should join as 
 
 plaintiffs, . . . . . . . .857 
 
 Trustees should defend jointly, ...... 857 
 
 lilovf feme covert cestui que trust should sue and defend, . , . 858
 
 xl 
 
 LEWIX OX THE LAAV OF T E U S T S, ETC. 
 
 8G2 
 8G2 
 862 
 80.2 
 
 Section III. 
 
 OF DISTRIXGAS. 
 
 Danger to winch stock, &c., exposed, iu consequence of the legal title only ^_^^ 
 
 being recognised, ...•••• '^'^' 
 
 Origin of the Writ of Distringas, . . • ,„„• ..^'o^ * 1% 
 
 Practice continued notwithstanding 4 Anne. c. 16, and 39 & 40 G. 3, c. 30, 8o J 
 
 Process transferred to Chancery on the abolition ot the Equity Exchequer, bo 9 
 
 Additional remedy given by 5 Vict. c. 5, s. 4, . . • • ^"^ 
 
 Practice under the 4th section, ..•■•• ^l^ 
 
 Transfer of the old Writ of Distringas, . . • • " q'. 
 
 Form of new Writ, . • • • . • • ' l^.\ 
 
 Orders of the Court of Chancery regulating the practice, . • boi 
 
 Form of Affidavit, _ . . • • • • ' t^.^y 
 
 As to discharging writ, 
 
 Effect of service of writ. 
 
 Affidavit to be filed. 
 
 Present practice, . • c i \ Qri 
 
 Distinctions between remedies under the 4th & 5th sections of tlie Act, . bhi 
 
 Both remedies available in the case of stock, .... 863 
 
 Section IV. 
 
 OF COMPULSORY PAYMENT INTO COURT. 
 
 General rule, ........ ^C4 
 
 Plaintiff may move upon a possible title, .... 8bo 
 
 Motion must be founded on admissions in answer, . . • 86o 
 
 Answer should contain an admission of probable title, . . • *^6G 
 
 Payment into Court must be on the footing of an equity alleged by the 
 
 bill, . . . B66 
 
 Not necessary that fund should be actually in defendant's hands, . 866 
 
 Payments not mentioned in answer may be verified by affidavit, . . 867 
 
 Pavment not ordered on a mere admission of circumstances showing a 
 
 " liability, 867 
 
 Special case of a trustee who is a debtor to his trust estate, . • 868 
 
 Payment into Court at the hearing, ..... ^68 
 
 Time allowed for payment into Court, ..... 869 
 
 Section V. 
 
 OF RECEIVERSHIP. 
 
 Receiver will be appointed at the instance of all the cesfnis que trust, . 869 
 
 Also where trustee is guilty of misconduct, or is insolvent, bankrupt, &c., 870 
 Where executrix a feme covert and husband abroad, . . .870 
 
 Receiver where trust estate unprotected, ..... 870 
 
 Receiver not granted on slight grounds, ..... 870 
 Receiver not discharged at the mere instance of the party procuring his 
 
 appointment, . . • . . . , . " . 871 
 
 Section VI. 
 OF COSTS OF sriT. 
 
 I. Costs as between trustees and strant^ers, . . . 872 
 
 VV here trustees cannot make a title, . 872 
 
 Trustee made a defendant as a necessary party, . ". '. *. 872
 
 C X T E X T S. 
 
 xli 
 
 Plaintiff failing, not necessarily to pay costs of a trustee, 
 Trustee has costs as between party and party only, 
 Costs in creditor's suit, .... 
 Executor (though not so formerly) now held entitled to his costs in pre 
 ference to the plaintiff in creditor's suit, 
 II. Costs as between trustees and cestuis que trust, inter 
 Trustees entitled to costs as a generel rule. 
 Trustee not appearing, .... 
 Decree passed, ..... 
 Disclaimer, ..... 
 
 Suit originated by trustees' misconduct, 
 Where misconduct proved only in part, 
 Setting aside a purchase by trustees, and absence of fraud 
 Mistake or slight neglect of trustee. 
 Administration suit mainly caused by a breach of trust, 
 Misconduct of the trustee discovered in the progress of the suit, 
 Costs of discussing a doubtful point of law, 
 Costs paid in part and received in part by trustee, 
 Trivial misconduct, .... 
 
 Trustee instituting a suit for his private ends, 
 Trustee falsely denying the plaintiff's claims, 
 Trustee misstating his accounts, 
 Corporation (trustee) pleading ignorance falsely, . 
 Corporation (trustee) suppressing documents, 
 Trustee setting up title of his own, 
 Executor denying relationship of next of kin, 
 Costs where executor charo^ed with interest, 
 
 872 
 872 
 873 
 
 873 
 873 
 873 
 
 874 
 874 
 874 
 875 
 875 
 876 
 876 
 876 
 876 
 876 
 877 
 877 
 877 
 877 
 877 
 878 
 878 
 
 878 
 
 STATUTES, WITH NOTES OF DECISIONS THEREON. 
 
 Trustee Act, 1850, . 
 Trustee Extension Act, 1852, 
 
 903 
 
 APPENDIX. 
 
 No. I. Strode v. Winchester, 
 
 II. Abbot V. Lee, .... 
 
 III. Cogan V. Stevens, 
 
 IV. Appointment of new Trustee of Stock, 
 V. Appointment of new Trustee of Chattels, 
 
 YI. Appointment of new Trustee of Freeholds (single deed, 
 
 VII. Appointment of Xew Trustee of Freeholds (two deeds,) 
 
 VIII. Sands v. Nugee, . . . . . 
 
 IX. Cases on Gifts to Relations, . . . . 
 
 X. Allen v. Saver, ...... 
 
 909 
 909 
 911 
 922 
 923 
 924 
 925 
 927 
 929 
 931
 
 TABLE OF CASES. 
 
 The pages referred to are those between brackets [ 
 
 Abbot V. Gibbs, 435. 
 
 V. Lee, 189, 797, 806. 
 
 Abington's case, 675, 677. 
 Abney v. Miller, 217. 
 Acherley v. Acherley, 60. 
 
 T. Roe, 752. 
 
 Acheson v. Fair, 220. 
 Ackland v. Lutby, 251, 255, 256. 
 Ackroyd v. Smithson, 182, 183, 
 Acland v. Gaisford, 174, 175. 
 Acton V. Peirce, 661, 685. 
 
 Y. White, 123. 
 
 V. Woodgate, 476, 481, 482. 
 
 Adair v. Shaw, 725, 766, 873. 
 
 V. New River Compan}-, 851. 
 
 Adams v. Adams, 252, 254,"^ 259. 
 
 V. Broke, 419. 
 
 v. Buckknd. 300. 
 
 V. Claxton, 332. 
 
 V. Clifton, 290, 472, 778, 875. 
 
 V. Gale, 360. 
 
 T. Paynter, 577, 650. 
 
 V. St. Leger, 840, 849. 
 
 V. Taunton, 237, 449, 533. 
 
 Adamson v. Armitage, 121. 
 
 Adey v. Arnold, 239. 
 
 Adye v. Feuilleteau or Fennilitteau, 
 
 337, 338, 341, 360, 361. 
 Adlington v. Gann, 56, 57, 61, 62, 66, 
 
 67, 68, 71, 79, 615. 
 Agar V. Fairfax, 755. 
 Aggas V. Pickerell, 731, 734. 
 Aguilar v. Aguilar, 635, 639. 
 Alcock V. Sloper, 354, 811, 
 Alden V. Gregoi'y, 734, 
 Alderman v. Neate, 106, 107. 
 Alderson v. Temple, 477, 480. 
 Aldridge v. Westbrooke, 584, 858. 
 Alexander v. Alexander, 296. 
 
 V. Crosbie, 427, 656. 
 
 V. Duke of Wellington, 25, 101. 
 
 V. Newman, 137. 
 
 V. Mullins, 850. 
 
 Alison's case, 71. 
 
 Allam V. Heber, 488. 
 
 Allan V. Backhouse, 389, 393, 401. 
 
 Allason v. Spark, 106, 107. 
 
 Allen's will, in re, 379. 
 
 Allen V. Allen, 37, 603. 
 
 V. Imlett, 19, 20, 269, 
 
 V. Papworth, 633. 
 
 V. Sayer, 720. 
 
 Alleyne v. Darcy, 226, 358, 562, 766. 
 
 Altham v. Anglesey, 7. 
 
 Alven V. Bond, 465. 
 
 Amand v. Bradburne, 558. 
 
 Ambrose v. Ambrose, 63, 200, 204. 
 
 Ames V. Parkinson, 330, 341, 346, 356. 
 
 Amhurst v. Dawling, 269. 
 
 Amler v. Amler, 806. 
 
 Amphlett v. Parke, 181, 183, 196, 197. 
 
 Anandale (Marquis of) v. Marchioness 
 
 of Anandale, 827, 828. 
 Anderson, ex parte, 583, 835. 
 
 in re, 580, 583, 713, 838. 
 
 V. Stather, 842. 
 
 Andrew v. Trinity Hall, Camb., 233. 
 
 V. Wrigley, 454, 455, 456, 460, 
 
 726, 730. 
 
 Andrews, ex parte, 318, 325, 332, 516. 
 
 V. Brown, 484. 
 
 V. Bousfield, 605. 
 
 V. Partington, 517. 
 
 Angelo, re, 881, 882. 
 
 Angell V. Dawson, 352, 513, 523. 
 
 V. Draper, 648. 
 
 Angerstein v. Martin, 346, 814. 
 Angler v. Stannard, 367, 595, 596. 
 Angle, ex parte, 767. 
 Angus V. Angus, 47. 
 Annand v. Honeywood, 797. 
 Annesley, ex parte, 106, 107. 
 
 v. Ashurst, 524. 
 
 V. Simeon, 591. 
 
 Anonymous case (Keilway,) 3. 
 
 (Jenkyns, 244, c. 3o',) 5. 
 
 (1 P. W. 445,) 12. 
 
 (2 Sim. N. S. 71,) 2&.
 
 LEWIX ON THE LAW OF TRUSTS, ETC. 
 
 xliv 
 
 Anonymous case, (2 Vent. 349,) 105 
 
 (7 Vin. 96,) 122. 
 
 (8 Vin. Ab. 72,) 169. 
 
 (1 Com. 345,) 181, 195. 
 
 (2 Vent. 361,) 200. 
 
 (Carth. 16,) 201. 
 
 2 Ch. Ca. 207,) 217. 
 
 (4 Leon. 207,) 235. 
 
 (Mos. 36,) 291. 
 
 (12 Mod. 560,) 295, 302. 
 
 (Mos. 35,) 305. 
 
 (Dyer, 210 a,) 310. 
 
 (1 Salk. 155,) 318. 
 
 (3 Ves. 515,) 319. 
 
 Lofft. 492,) 337. 
 
 (2 Ves. 630,) 361, 
 
 . (6 Mad. 10,) 414, 423. 
 
 (1 Salk. 153,) 423. 
 
 (Mos. 96,) 434, 435. 
 
 (Pr. Ch. 434,) 456, 459. 
 
 (2 Russ. 350,) 465. 
 
 (6 Ves. 632,) 471. 
 
 (2 Vern. 133,) 487. 
 
 (2 Ch. Ca. 54,) 488. 
 
 (1 Salk. 154,) 491. 
 
 (2 S\v. 300, 302,) 504. 
 
 (10 Ves. 104,) 524. 
 
 (10 Ves. 103.) 546. 
 
 (2 P. W. 261,) 616. 
 
 (18 Ves. 258,) 642. 
 
 (1 P. W. 445,) 648. 
 
 (2 Moll. 483,) 659. 
 
 (2 Atk. 223,) 677. 
 
 (1 Roll. Rep. 56,) 685. 
 
 (2 Vent. 349,) 693. 
 
 (1 P. W. 327,) 698. 
 
 (4 Ir. Eq. Rep. 700,) 710. 
 
 (6 Mad. 10,) 723. 
 
 (6 Ves. 632,) 738. 
 
 (Sel. Ch. Ca. 57,) 754, 762. 
 
 (1 Vern. 105,) 755. 
 
 (1 Salk. 126,) 758. 
 
 (2 Freem. 114,) 828. 
 
 (1 Ves. jun. 462, and 3 B. C. C. 
 
 515,) 829. 
 
 (3 P. W. 389,) 832. 
 
 (5 Sim. 322,) 835. 
 
 (1 Y. & C. 75,) 839. 
 
 (1 Y. &C. 538,) 858. 
 
 (4 Sim. 359,) 867. 
 
 (12 Ves. 4,) 870, 871. 
 
 (12 Ves. 5,) 870. 
 
 Anthony v. Rees, 247, 250. 
 
 Antrim (Lord) v. Duke of Buckingham, 
 34. 
 
 Antrobus v. Smith, 85, 97, 99. 
 
 Aplyn V. Brewer, 305, 310. 
 
 Appleyard v. Wood, 45, 616. 
 
 Archer v. Rooke, 121, 125. 
 
 Ardill V. Savage, 583. 
 
 Arglasse v. Muschamp, 48. 
 
 Armstrong v. Peirse, 590. 
 
 V. Walker, 659. 
 
 Arnold v. Chapman, 182, 193, 194. 
 
 Arnold V. Garner, 319, 546. 
 
 Arran v. Tyrawley, 734. 
 
 Arthur T. Arthur, 121, 643. 
 
 Asby V. Doyl, 173. 
 
 Ashburnham v. Thompson, 3o9, 8i5, 
 
 878. 
 Ashburton v. Ashburton, 829. 
 Ashby V. Ashby, 628. 
 
 V. Blackwell, 372. 
 
 V. Palmer, 807, 816, 823. 
 
 Ashton T. Ashton, 156. 
 
 V. M'Dougall, 131. 
 
 Aston T. Aston, 643, 644. 
 Atcherley v. Vernon, 122, 250. 
 Atkins T. Rowe, 205. 
 Atkinson, re, 607. 
 Atkyns v. Wright, 170. 
 Attorney-General v. Alford, 361, 362, 
 376, 377. 
 
 V. Andrew, 659, 665. 
 
 r. Andrews, 516, 616. 
 
 V. Arnold, 198. 
 
 T. Aspinall, 23, 25, 31. 
 
 V. Backhouse, 508, 509, 510. 
 
 T. Baliol College, 511, 850. 
 
 V. Corporation of Bedford, 493. 
 
 V. Corporation of Berwick-upon- 
 Tweed, 790. 
 
 T. Black, 495. 
 
 V. Blizard, 106, 496. 
 
 V. Boulden, 178. 
 
 T. Bovill, 105, 496. 
 
 V. Brandreth, 496. 
 
 V. Master of Brentwood School, 
 
 502. 
 
 V. Brettingham, 503, 790. 
 
 V. Brewers' Company, 753, 786, 
 
 788, 877. 
 
 T. Brickdale, 298. 
 
 T. Corporation of Bristol, 781. 
 
 V. Mayor of Bristol, 198, 199. 
 
 Y. Brooke, 503, 507, 508, 509. 
 
 V. Browne's Hospital, 493. 
 
 Y. Brown, 846. 
 
 y. Buckland, 698. 
 
 V. Buller, 263, 503. 
 
 T. Caius College, 31, 199, 500, 712, 
 
 790, 876. 
 V. Corporation of Carlisle, 790. 
 v. Master of Catherine Ilall, Cam- 
 bridge, 198, 492, 507. 
 
 T. Dean of Christchurch, 499, 502, 
 
 790. 
 
 V. Christ's Hospital, 199, 730, 735, 
 
 790, 878. 
 
 V. Clack, 524, 544, 582. 
 
 V. Clapham, 497. 
 
 V. Clare Hall, 494. 
 
 V. Earl of Clarendon, 31, 462, 493, 
 
 495, 505. 
 
 V. Coopers' Company, 198, 712. 
 
 V. Cordwainers' Company, 
 
 T. Mayor of Coventry, 198. 
 
 V. Cowper, 711.
 
 TABLE OF CASES. 
 
 xlv 
 
 Attorney-General v. Crook, 492, 510. 
 
 V. St. Cross Hospital, 493. 
 
 V. Cross, 506, 508, 509. 
 
 V. Cuming, 107, 298, 300, 712, 777, 
 
 779, 857, 874, 301, 527. 
 
 T. Davy, 109. 
 
 T. Day, 504, 511. 
 
 V. Dew, 854. 
 
 V. Dixie, 332, 493, 495, 500, 505. 
 
 506, 507, 508. 
 
 V. Lady Downing, 693, 694, 696. 
 
 V. Doyley, 233. 
 
 V. Drapers' Company, 199, 789, 
 
 790, 876, 878. 
 
 V. Drummond, 876. 
 
 V. Lord Dudley, 461, 466, 469, 470, 
 
 738. 
 
 V. Dulwich College, 493. 
 
 V. Duplessis, 71. 
 
 V. Corporation of Exeter, 105, 496, 
 
 790. 
 V. Mayor of Exeter, 717, 729, 731, 
 
 739, 786, 787, 788, 790. 
 
 V. Fishmongers' Company, 730. 
 
 T. Flint, 745. 
 
 y. Floyer, 301, 527, 580, 751. 
 
 V. Foley, 107. 
 
 V. Foord, 506, 510. 
 
 V. Forster, 107, 108, 109, 269, 779. 
 
 v.Tlie Foundling Hospital, 31,493, 
 
 723. 
 
 V. Foyster, 502. 
 
 V. Gascoigne, 199, 500. 
 
 V. Gaunt, 492. 
 
 V. Gibson, 505. 
 
 V. Glegg, 22, 297, 299, 300, 543. 
 
 v. Goldsmiths' Company, 495. 
 
 V. Lord Gore, 585. 
 
 V. Lord Gower, 506. 
 
 V. Green, 503, 508, 511, 782. 
 
 V. Greenhouse, 766. 
 
 V. Griffith, 507, 509. 
 
 V. Haberdashers' Company, 198, 
 
 500, 783. 
 
 V. Hall, 169, 171, 509. 
 
 V. Governors of Harrow School, 
 
 538, 544. 
 
 V. Heelis, 23, 851, 852. 
 
 V. Herrick, 198. 
 
 V. Hickman, 696. 
 
 V. Higham, 328, 338. 
 
 V. Hobert, 875. 
 
 V. Holland, 317, 502. 
 
 V. Lord Hotham, 509. 
 
 V. Hungerford, 503. 
 
 V. Hurst, 713. 
 
 V. Jackson, 500. 
 
 V. Johnson, 198, 199. 
 
 V. Johnstone, 196, 197. 
 
 V. Kell, 496. 
 
 V. Kerr, 503, 509, 511. 
 
 V. Ladyman, 500. 
 
 V. Landerfield, 31. 
 
 V. Duke of Leeds, 283, 285. 
 
 January, 1858.- 
 
 Attorney-General V. Corporation of Lei- 
 cester, 226, 227, 562, 763, 853. 
 
 V. Lewin, 106. 
 
 V. Corporation of Lichfield, 31. 
 
 V. Bishop of Lichfield, 300, 301, 
 
 527, 580. 
 
 V. Mayor of Liverpool, 723. 
 
 V. Lock, 301, 492, 493. 
 
 V. Lockley, 57. 
 
 V. City of London, 873. 
 
 V. Corporation of London, 31. 
 
 V. Magdalen College, Oxford, 493. 
 
 V. Magdalen College, 503, 722, 745, 
 
 749. 
 
 V. Magwood, 506. 
 
 V. Earl of Mansfield, 496,499, 500, 
 
 504. 
 
 V. Mercers' Company, 502. 
 
 V. Merchant Venturers' Society, 
 
 199. 
 
 V. Middleton, 493. 
 
 V. Milner, 190. 
 
 V. Minshnll, 158. 
 
 V. Moor, 735. 
 
 V. Morgan, 506. 
 
 V. Munby, 132. 
 
 V. Munro, 325, 498. 
 
 V. Murdoch, 497. 
 
 V. Newark, 503, 791. 
 
 V. Newbury, 789, 790. 
 
 V. Newbury Corporation, 495, 717, 
 
 789, 845. 
 
 V. Newcombe, 107, 108, 269, 779. 
 
 V. Mayor of Norwich, 557, 559. 
 
 • V. Corporation of Norwich, 516. 
 
 V. Owen, 507, 508, 509, 510, 523. 
 
 V. Pargeter, 503, 508. 
 
 V. Parker, 108, 109, 269, 779. 
 
 V. Parnther, 644. 
 
 V. Pearson, 131. 497, 498, 499. 559, 
 
 577, 711, 853. 
 
 V. Persse, 746, 750. 
 
 V. Pomfret, 833. 
 
 V. Borough of Poole, 31. 
 
 V. Poulden, 113, 114, 118. 
 
 V. Pretyman, 790. 
 
 V. Price, 706. 
 
 V. Randall, 306, 332. 
 
 V. Randies, 836. 
 
 V. East Retford Grammar School, 
 
 781. 
 V. Burgesses of East Retford, 764, 
 
 790, 791, 878. 
 V. Rigby, 790. 
 
 V. Mayor of Rochester, 511. 
 
 V. Rutter, 109. 
 
 V. Sands, 2, 43, 103, 131, 321, 673, 
 
 674, 676, 677, 678, 681, 682. 
 V. Scott, 22, 57, 107, 247, 297, 527, 
 
 621, 625, 777. 
 
 V. Shearman, 298. 
 
 V. Sherborne School, 495. 
 
 V. Shore, 711. 
 
 V. Corporation of Shrewsbury, 23.
 
 LEWIN OX THE LAW OF TRUSTS, ETC. 
 
 Attorney-General v. Smythies, 199. 
 
 V. Solly, 363, 3G4. 
 
 V. Guardians of Poor of South- 
 ampton, 51G. 
 
 V. Corporation of Southiuolton, 
 
 199. 
 
 V. South Sea Company, 503, 515. 
 
 V. Sparks, 198. 
 
 V. Corporation of Stafford, T88. 
 
 V. Mayor of Stamford, 31, 500, 
 
 501,505, 50G, 507, 711, 783. 
 
 V. Stephens, 693, 696. 
 
 V. Vivian, 496, 779. 
 
 T. Warren, 503, 504, 507, 508. 
 
 V. Whiteley, 499. 
 
 V. Whorwood, 10, 31. 
 
 V. Wilkinson, 105. 
 
 v. Wilson, 25, 177, 198, 504, 767, 
 
 768, 845, 846, 847, 875. 
 
 V. Bishop of Worcester, 782. 
 
 V. Archbishop of York, 492. 
 
 Austen t. Taylor, 141, 142, 144, 145, 
 158, 246. 
 
 Austin V. The Bank of England, 33. 
 
 Aveling v. Knipe, 200, 201, 202. 
 
 Averall v. Wade, 52. 
 
 Avery v. Osborne, 877. 
 
 Awdley v. Awdley, 18, 828, 830. 
 
 Ayles V. Cox, 893, 896, 903. 
 
 Ayliff V. Murray, 460, 463, 545, 552. 
 
 Avlwyn v. Bray, 777. 
 
 Aynsworth v. The Bank, 33. 
 
 Babington's case, 673. 
 Back v. Andrews, 210, 216. 
 
 V. Gooch, 478, 479. 
 
 Backhouse v. Backhouse, 693. 
 
 V. Middleton, 725. 
 
 Bacon v. Bacon, 284, 293. 
 
 Y. Proctor, 111. 
 
 Badcock, in re, 828. 
 Badcocke, ex parte, 462, 465. 
 Baden v. Earl of Pembroke, 796. 
 Bage, ex parte, 465. 
 Baggett v. Meux, 44, 645. 
 Bagshaw v. Spencer, 142, 153, 156, 247, 
 251, 256. 
 
 v. Winter, 369, 370. 
 
 Bailey, ex parte, 477. 
 
 V. Ekins, 238, 441, 443, 488. 
 
 T, Gould, 328, 329, 332, 877. 
 
 V. Jackson, 633, 635. 
 
 Bain v. Lescher, 122. 
 Bainbridge v. Lord Ashburton, 264. 
 Bainbrigge v. Blair, 320, 549, 554, 555, 
 711, 870, 871. 
 
 v. Burton, 852. 
 
 Baker, ex parte, 826. 
 
 V. Carter, 460, 465, 470, 774, 875. 
 
 V. Hall, 194. 
 
 T.Martin, 551. 
 
 V. Ptead, 470. 
 
 Balch V. Wastall, 648. 
 
 Balchen v. Scott. 240, 291. 
 
 Biildock, ex parte, 424. 
 Baldwin v. Baldwin, 628. 
 
 Y. Banister, 319. 
 
 Bale V. Coleman, 141, 144, 146, 256. 
 Balfour v. Welland, 432, 433, 436. 
 Bah'-ney v. Hamilton, 206, 756. 
 Balf V. Harris, 416, 440, 441, 442, 454. 
 
 . V. Montgomery, 878. 
 
 Ballet V. Sprainger, 395. 
 
 Balls V. Strutt, 723. 
 
 Balsh v. Hyham, 522, 559, 562. 
 
 V. Wastall, 12. 
 
 Bamford v. Baron, 479. 
 
 Banbury v. Briscoe, 227. 
 
 Band v. Fardell, 352, 353. 
 
 Bangley's Trust, 381. 
 
 Bank of England v. Lunn, 32, 33. 
 
 V. Moffatt, 32, 33. 
 
 V. Parsons, 32, 33. 
 
 Bankes v. Le Despencer, 157, 538. 
 
 V. Sutton, 621, 625, 680, 794, 795. 
 
 Barber, ex parte, 265. 
 
 v. Barber, 735. 
 
 Barclay v. Raine, 227. 
 
 V. Russell, 198, 325. 
 
 Bardswell v. Bardswell, 168, 170. 
 Barff, ex parte, 771. 
 Barfield v. Rogers, 836. 
 Barker v. Boucher, 489. 
 
 v. Greenwood, 247, 248. 
 
 V. Duke of Devonshire, 435. 
 
 Y. Lea, 369. 
 
 v. May, 20, 688. 
 
 Barklcy v. Reay, Lord, 871. 
 
 Barlow v. Grant, 517, 518. 
 
 Barnard v. Heaton, 397. 
 
 Y. Hunter, 729. 
 
 v. Large, 408, 409, 410, 411. 
 
 Y. Proby, 145. 
 
 Barnardiston v. Soame, 20. 
 
 Barnes v. Crow, 591. 
 
 Barnwall v. Barnwall, 660, 663, 664, 
 754, 755. 
 
 Barnwell v; Barnwell, 658. 
 
 Barret v. Glubb, 269. 
 
 Barrett v. Buck, 118, 177. 
 
 Barrington v. Hereford, 194. 
 
 Y. Liddle, 119, 120. 
 
 Barrow v. Greenough, 70. 
 
 Barry, in re, 835. 
 
 \\ Marriott, 343, 346. 
 
 Y. Woodhara, 858. 
 
 Bartholomew's Trust, m re, 380. 
 
 Barthrop v. West, 681. 
 
 Bartlett v. Bartlett, 865. 
 
 V. Green, 149. 
 
 V. Pickersgill, 200, 204, 205. 
 
 Bartley v. Bartley, 450, 533. 
 
 Barton v. Briscoe, 130, 631. 
 
 Barwell v. Parker, 489, 490, 491. 
 
 Baskerville v. Baskerville, 144, 156. 
 
 Basset's (Sir W.) case, 184. 
 
 V. Clapham, 408. 
 
 I Bastard v. Proby, 156.
 
 TABLE OF CASES. 
 
 xlvii 
 
 Bate V. Hooper, 340, 353, 373. 
 
 V. Scales, 356. 
 
 Bateman v. Davis, 340, '774, 777. 
 
 V. Hotchkin, 111, 119, 238. 
 
 V. Margerison, 491, 852. 
 
 Bates V. Dandy, 631. 
 
 Bath (Earl of) t. Abney, 272. 
 
 V. Earl of Bradford, 414, 489, 491, 
 
 513, 820. 
 Batson v. Lindegreen, 488. 
 Batteley v. Windle, 180. 
 Battersby's Trust, 895. 
 Battier, ex parte, 269. 
 Baugh V. Price, 466, 472. 
 Baugham, ex parte, 380. 
 Baxter v. Pritchard, 478. 
 Baxter's Will, 891. 
 Bayley v. Boulcott, 56, 61. 
 
 v. Mansell, 713. 
 
 V. Powell, 184, 878. 
 
 B.aylies v. Baylies, 589. 
 
 Baylis v. Newton, 177, 214. 
 
 Bayly v. Gumming, 237, 533. 
 
 Baynard v. Wolley, 768, 851. 
 
 Baynes v. Baynes, 839. 
 
 Beale v. Symonds, 285, 322, 679. 
 
 Beales v. Spencer, 122. 
 
 Bean v. Sykes, 372. 
 
 Beanland v. Halliwell, 813. 
 
 Beard v. Nutthall, 94. 
 
 Beatson v. Beatson, 91. 
 
 Beatty v. Johnstone, 847. 
 
 Beauclerk v. Ashburnham, 349, 542. 
 
 Beaumont v. Beaumont, 869. 
 
 V. Meredith, 866. 
 
 V. Salisbury (Marquis,) 253. 
 
 Beavan v. Lord Oxford, 280, 666, 668, 
 
 672. 
 Beckett v. Cordley, 39. 
 Beckford v. Beckford, 215, 216. 
 
 V. Close, 734. 
 
 V. Wade, 730, 731. 
 
 Bedford (Duke of) v. Marquis of Aber- 
 corn, 164, 165. 
 
 Charity, in re, 493, 780. 
 
 V. Leigh, 658. 
 
 T. Woodham, 456. 
 
 Bedwell v. Froome, 207. 
 Beech v. Keep, 81, 84. 
 
 V. St. Vincent, 119. 
 
 Beer (in the goods of,) 234. 
 
 Beere v. Head, 669. 
 
 Begbie v. Crook, 236. 
 
 Beilby, ex parte, 123, 773. 
 
 Belch V. Harvey, 731. 
 
 Belchier, ex parte, 293, 295, 305, 310, 
 
 332, 422. 
 Belke's Charity, 718. 
 Bell V. Bell, 721, 724, 725, 729, 730, 
 
 733. 
 Bell V. Hyde, 34. 
 Bellamy, ex parte, 833. 
 
 V. IBurrow, 63. 
 
 Bellasis v. Compton, 56, 61. 
 
 Bellingham v. Lowther, 98. 
 Beloved Wilkes's Charity, in re, 543. 
 Benbow v. Townsend, 56, 61, 207. 
 Benn v. Dixon, 808. 
 Bennet, ex parte, 136, 476. 
 
 v. Box, 682, 683. 
 
 V. Davis, 121, 173, 260, 276, 279, 
 
 623, 624, 694. 
 
 V. Going, 873. 
 
 V. Mayhew, 758. 
 
 V. Whitehead, 755. 
 
 Bennett v. Attkins, 873, 876. 
 
 V. Burgis, 244. 
 
 ex parte, 460, 461, 462, 463, 465, 
 
 466, 467. 
 V. Oolley, 392, 395, 402, 722, 729, 
 
 737, 778. 
 
 V. Honeywood, 542, 706. 
 
 V. Powell, 648, 652, 663. 
 
 Benson v. Benson, 125, 130, 238, 631, 
 
 820, 822. 
 
 V. Whittam, 172. 
 
 Bentham v. Wiltshire, 445. 
 Bentley v. Craven, 225, 318. 
 
 V. Mackay, 63, 83. 
 
 Berkhampstead Free School, ex parte, 
 
 493, 543, 782. 
 Berriugton v. Evans, 661. 
 Berry v. Usher, 183, 195, 196. 
 Bessey v. Windham, 478. 
 Bethune v. Kennedy, 354, 810, 812. 
 Bevan's case, 827. 
 Bevant v. Pope, 260. 
 Beveridge, ex parte, 715. 
 Beverley v. Beverley, 603. 
 Beynon v. Gollins, 435. 
 Bick V. Motly, 315, 362, 771, 772. 
 Bickham v. Freeman, 489. 
 Bicknell v. Gough, 734. 
 Biddulph, ex parte, 772. 
 
 V. Biddulph, 796. 
 
 Bifieldv. Taylor, 841, 844. 
 Biggs, in re, 376. 
 
 V. Andrews, 807. 
 
 V. Penn, 854. 
 
 Bignold V. Springfield, 782. 
 Bill V. Cureton, 93. 
 Billing V.Webb, 837. 
 Billingsley v. Mathew, 300. 
 Billingsly v. Critchet, 518. 
 Binford v. Bawden, 817. 
 Bingham v. Glanmorris, 236. 
 
 V. Woodgate, 284, 616. 
 
 Bingley School, in re, 785. 
 
 Binion v. Stone, 209. 
 
 Biuks V. Lord Rokeby, 427, 431, 435. 
 
 Birch V. Blagrave, 178, 215. 
 
 V. Cropper, 575. 
 
 V. Wade, 167, 703, 704. 
 
 Bird V. Johnson, 132. 
 
 V. Lockey, 351, 361. 
 
 V. Peagrum, 642. 
 
 Birls V. Betty, 767. 
 Birmingham School, in re, 492.
 
 xlviii 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 Biscoe v. Kennedy, 634. „„ ,,„ 
 
 V. Perkins, 247, 405, 408, 409, 410, 
 
 411. 
 Bishop V. Colebrook, 3T2. 
 
 V. Talbot, G8. 
 
 Black V. Creighton, 866. 
 
 Blackburn v. Stables, 147, 153, 154. 
 
 Blackburne, ex parte, 536. 
 
 Blacklow V. Laws, 122. 
 
 Blackston v. Hemsworth Hospital, 502. 
 
 Blackwood v. Borrowes, 317, 338, 419, 
 
 773,777. 
 Blagrave v. Blossom, 258. 
 Blair v. Bromley, 734. 
 
 V. Ormond, 742. 
 
 T. Nugent, 745. 
 
 Blake v. Bunbury, 586. 
 
 V. Foster, 733. 
 
 Blakely v. Brady, 87. 
 Bland v. Bland, 169, 171. 
 
 T. Wilkins, 193. 
 
 Blann V.Bell, 810, 813. 
 Blatch V. Wilder, 173, 488. 
 Blennerhassett v. Day, 423, 734. 
 Blewitt v. MiUett, 220, 224. 
 
 V. Thomas, 734. 
 
 Blinkhorne v. Feast, 39. 
 
 Bliss T. Bridgwater, 238. 
 
 Blithe's case, 34, 526. 
 
 Blomfield v. Eyre, 753. 
 
 Blove's Trust, in re, 379, 380, 460, 461, 
 
 462. 
 Blue V. Marshall, 521. 
 Boardman v. Mosman, 317. 
 Boddv V. Esdaile, 274, 275. 
 Bodeaham v. Hoskyns, 227, 459, 562. 
 Boden's Trust, in re, 888. 
 Bold v. Hutchinson, 149. 
 Bolton V. Bolton, 97, 99. 
 
 (Duke of) v. Deane, 754, 755. 
 
 V. Williams, 634, 635, 639. 
 
 Bond V. Hopkins, 732. 
 
 V. Nurse, 19. 
 
 Bone V. Cook, 306, 317. 
 
 Bonham v. Newcomb, 97. 
 
 Bonifant v. Greenfield, 235, 236, 237. 
 
 Bonithon v. Hockmore, 545, 546, 556. 
 
 Bonner v. Bonner, 370. 
 
 Bonney v. Ridgard, 453, 454, 455, 457 
 
 460, 730, 731. 
 Booth, ez parte, 290. 
 
 V. Booth, 239, 240, 290, 317, 768 
 
 774. 
 
 V. Warrington, 734. 
 
 Boreham v. Bignall, 368. 
 
 Bosanquet, ex parte, 835. 
 
 Boschetti v. Power, 866. 
 
 Boson V. Statham, 56, 61, 67, 68, 74, 80 
 
 Boss V. Godsall, 339. 
 
 Bostock V. Blakeney, 356, 512, 514. 
 
 BoSvil V. Brander, 628. 
 
 Bosworth V. Forard, 251. 
 
 Boteler v. AUington, 16. 
 
 Bothomly V. Lord Fairfax, 489, 621. 
 
 Boughton V. James, 111. 
 
 V. Langley, 248. 
 
 Boulton T. Beard, 366. 
 Bourne v. Buckton, 118, 119. 
 
 V. Bourne, 808. 
 
 V. Mole, 867. 
 
 Bovey v. Smith, 725, 726, 727. 
 Bowater v. Elly, 603. 
 Bowden v. Bowden, 810. 
 Bowes, ex parte, 263, 264, 835. 
 V. East London Waterworks' Com- 
 pany, 522, 752, 778. 
 
 V. Earl of Shaftesbury, 805. 
 
 Bowker v. Burdekin, 477, 479. 
 Bowles V. Rogers, 277. 
 
 T. Stewart, 223, 224, 778. 
 
 V. Weeks, 713. 
 
 3owj-er v. Rivitt, 659. 
 Bowra v. Wright, 694. 
 Box V. Box, 372. 
 
 V. Jackson, 629. 
 
 Boyce v. Corbally, 533. 
 Brace v. Duchess of Marlborough, 280. 
 Brackenbury v. Brackenbury, 138. 
 Bradburne, in re, 837. 
 Bradford v. Belfield, 296, 297. 
 Bradgate v. Ridlington, 487. 
 Bradish v. Gee, 823, 824. 
 Bradshaw, ez parte, 890. 
 
 v. Bradshaw, 300. 
 
 V. Fane, 417. 
 
 Bradwell v. Catchpole, 304, 726. 
 Brandlyn v. Ord, 726. 
 Brandon t, Aston, 136, 520. 
 
 v. Robinson, 132. 
 
 Brasier v. Hudson, 431. 
 
 Brassey v. Chalmers, 417, 530, 533. 
 
 Bray, ex parte, 557. 
 
 1 Y_ West 235. 
 
 Braybr'oke (Lord) v. Inskip, 262, 263, 
 264, 449. 
 
 Brearcliff T. Dorrington, 614. 
 
 Breedon v. Breedon, 432. 
 
 Brest V. Offley, 167. 
 
 Brett V. Greenwell, 369. 
 
 Brettell, ez parte, 263, 264. 
 
 Brewer v. Swirles, 640, 775. 
 
 Brewster v. Angell, 164, 165, 166. 
 
 Brice v. Stokes, 304, 305, 306, 311, 312, 
 316, 317, 774, 775. 
 
 Bridgenorth (Corporation of) v. Collins, 
 116. 
 
 Bridge V. Bridge, 65, 81, 83, 84,89,94. 
 
 V. Brown, 513, 517, 557. 
 
 Bridger v. Rice, 415. 
 
 Bridgett v. Hames, 851. 
 
 Briggs V. Chamberlain, 818. 
 
 V. Oxford (Earl of), 112. 
 
 V. Penny, 68, 78, 168, 169, 173. 
 
 Bright V. North, 516, 559. 
 
 Brighfs Trust, in re, 613. 
 
 Bristed v. Wilkins, 67 1. 
 
 Bristol (Countess of) v. Hungerford, 
 183, 184.
 
 TABLE OF CASES. 
 
 XllX 
 
 Bristow V. Pegge, 590. 
 Britten v. Cole, 647. 
 Britton v. Twining, 142. 
 Broadhurst v. Balguy, 306, lib, 778. 
 ^Brocksopp v. Barnes, 545, 549, 553. 
 Brodie v. Barry, 643, 869. 
 
 V. St. Paul, 872. 
 
 Bromfield, ez parte, 826, 827, 828, 829, 
 
 830. 
 
 V. Wytherley, 360. 
 
 Bromley v. Holland, 842, 848. 
 
 V. Lingard, 773. 
 
 V. Smith, 851. 
 
 Brook V. Brook, 35. 
 
 (Earl) Y. Bulkeley, 725. 
 
 Brookes v. Burt, 848. 
 Brookman v. Hales, 182, 218. 
 
 V. Rothschild, 225. 
 
 Brooksbank v. Smith, 733. 
 Broom v. Broom, 839. 
 
 V. Summers, 497. 
 
 Brougham (Lord) v. Poulett (Lord), 
 
 564. 
 Broughton v. Broughton, 320, 549, 550. 
 
 V. James, 641. 
 
 V. Langley, 246. 
 
 Browell v. Read, 237, 424, 869, 871. 
 Brown, ex parte, 781. 
 
 V. Bamford, 129. 
 
 V. Bigg, 196. 
 
 V. Brown, 713. 
 
 V. Dawson, 498. 
 
 V. De Tastet, 548. 
 
 V. Groombridge, 564. 
 
 v. Higgs, 168, 197, 526, 695, 696, 
 
 701, 702, 703, 706, 708, 709. 
 
 V. How, 585, 875. 
 
 V. Jones, 182, 191. 
 
 v. Like, 123, 
 
 T. Litton, 343, 360, 361, 548. 
 
 V. Pocock, 124, 128, 701, 704. 
 
 V. Raindle, 260. 
 
 T. Sansome, 361, 364. 
 
 V. Wuiteway, 255. 
 
 Browne v. Blount, 849. 
 
 V. Cavendish, 481, 482, 483, 653. 
 
 v. Cross, 742, 776. 
 
 T. DeLaet, 189. 
 
 T. Elton, 628. 
 
 V. Lockhart, 857. 
 
 V. Southouse, 359, 361. 
 
 T. Stoughton, 111. 
 
 Brudenell v. Boughton, 65. 
 Bruere v. Pemberton, 359. 
 Brummell v. Macpherson, 42. 
 Brunsden v. Woolredge, 542, 699, 706, 
 Byran v. Collins, 116. 
 
 V. Brydges, 142. 
 
 Buchanan v. Hamilton, 710. 
 
 Buck V. Shippam, 486. 
 
 Buckeridge v. Glasse, 237, 711, 756, 
 
 774, 775, 778. 
 
 V. Ingram, 393, 396. 
 
 Buckingham (Earl ofj v. Drury, 39, 792. 
 
 Buckle T. Mitchell, 93. 
 
 Buckley's Trust, in re, 375, 
 
 Buckley v. Lanauze, 218. 
 
 BufiFery, ex parte, 716. 
 
 Bugden v. Bignold, 608. 
 
 Buggins V. Yates, 169, 170, 180, 183. 
 
 Bulkly V. Wilford, 226, 
 
 Bull T. Birkbeck, 403. 
 
 V. Vardy, 172. 
 
 Bullock r. Knight, 629, 
 
 T. Wheatley, 328. 
 
 Bullpin V. Clarke, 634, 641. 
 Bunnett v. Foster, 183, 851. 
 Bunting, in re, 226. 
 Burbridge. ex parte, 278. 
 Burchett v. Durdant, 248, 
 Burden v. Burden, 549. 
 Burdett v. Rockey, 261. 
 
 v. Willet, 754. 
 
 Burdon v. Burdon, 643. 
 Burdon v. Kennedy, 649, 665. 
 Burge V. Brutton, 320, 550. 
 Burgess V. Wheate, 10, 11, 12, 13, 14. 
 
 15, 30, 42, 43, 57, 103, 269, 270, 28o'. 
 
 281, 282, 283, 284, 285, 318, 321, 322^ 
 
 323, 593, 600, 615, 622, 625, 629, 675. 
 
 677, 678, 680, 724, 725, 792, 795, 872'. 
 Burgh V. Burgh, 280, 
 
 v. Francis, 279. 
 
 Burke v. Jones, 484. 
 
 Burn V. Carvalho, 92. 
 
 Burney t. Macdonald, 43, 72, 132, 472. 
 
 Burnie v. Getting, 342. 
 
 Burntree Building Society, in re, 837. 
 
 Burrell v. Egremont (Lord), 733. 
 
 Burridge v. Row, 771. 
 
 Burrough v. Philcox, 703, 704. 
 
 Burroughs v. Elton, 659. 
 
 y. M'Creight, 748. 
 
 Burrowes v. Lock, 605. 
 Burrows v. Greenwood. 875. 
 
 V. Walls, 599, 778. 
 
 Burt, re, 882, 901. 
 
 T. Dennet, 846, 
 
 V. Ingram, 339. 
 
 V. Sturt, 119, 120, 
 
 Burting v. Stonard, 459. 
 Burton, ex parte, 226, 768. 
 
 V. Hastings, 148, 149. 
 
 V. Hodsoll, 807. 
 
 V. Mount, 810. 
 
 y. Pierpoint, 121, 694. 
 
 y. Wookey, 546. 
 
 Burtt's Trust, re, 297. 
 
 Estate, re, 534, 267, 533. 
 
 Bush T. Allen, 250. 
 Butcher y. Easto, 477. 
 Butler & Baker's case, 235, 236. 
 Butler's Trust, re, 381. 
 Butler, ex parte, 274. 
 
 v. Bray, 299, 536. 
 
 V. Portarlington, 63. 
 
 V. Prendergast, 842, 847. 
 
 Buxton, ex parte, 423.
 
 LEAVIN ON THE LAW OF TRUSTS, ETC. 
 
 1 
 
 Buxton V. Buxton, 329, 415 
 Byam V. Byam, 450, 533, 536 543 
 
 Byrchall v. Bradford, 243, 764, 1U. 
 
 Byrne, re, '713. 
 
 __ T. Frere, TSS, 734, 738. 
 
 Cadogan v. Earl of Essex, 349, 542. 
 
 V. Kennet, 594. 
 
 Cafe Y. Bent, 524, 544, 582 812. 
 Cafifrey v. Darby, 326, 557, 5o8, 766, 
 
 875. 
 Caillaud v. Estwick, 649. 
 Caldecott v. Brown, 514. 
 
 T. Caldecott, 354, 814, 815. 
 
 Callaghan v. Egan, 839. 
 Callow V. Howie, 633, 634. 
 Calvert v. Godfrey, 840. 
 Calverley v. Phelp, 842. 
 Cambridge v. Rous, 195, 197. 
 Camden v. Anderson, 203. 
 Camoys (Lord) v. Best, 566, 578. 
 Campbell v. Campbell, 547. 
 
 V. Ferrall, 662. 
 
 V. Graham, 739. 
 
 V. Home, 367, 595. 
 
 V. Walker, 421, 460, 461, 462, 464, 
 
 465, 466,467, 468, 470, 471, 472, 473. 
 Caney v. Bond, 328. 
 Cann v. Cann, 472. 
 Canning v. Hicks, 18. 
 Cant, ez parte, 901. 
 Cantiey, re, 264. 
 Cape V. Cape, 122. 
 Capel V. Wood, 384. 
 Car V. Burlington, 489, 490, 491. 
 
 V. Ellison, 272, 816. 
 
 Carbis, exparte, 612, 613. 
 Carew v. Johnston, 546. 
 Carleton t. Earl of Dorset, 631. 
 Carlisle (Corporation of) v. Wilson, 753 
 Carlon v. Farlar, 662. 
 Carmichael v. Wilson, 361, 517. 
 Carpenter, in re, 882. 
 
 V. Carpenter, 603. 
 
 V. Heriot, 472. 
 
 V. Marnell, 274, 275, 276. 
 
 Carr v. Bedford, 538, 707. 
 
 V. Ellison, 816. 
 
 T. Errol, 163. 
 
 Carrick v. Errington, 182. 
 
 Carsey v. Barsham, 305. 
 
 Carter v. Barnardiston, 251, 428. 
 
 V. Home, 225, 318. 
 
 V. Taggart, 369, 370. 
 
 V. Waine, 474. 
 
 Carteret (Lord) v. Paschal, 630. 
 
 (Lord) V. Petty, 50. 
 
 Cartwright, exparte, 714, 716. 
 Carvill v. Carvill, 173. 
 Carwardine v. Carwardine, 246. 
 Cary v. Cary, 167, 168, 169. 
 Casamajor v. Strode, 816. 
 Casborne v. Scarfe, 262, 263, 264, 621, 
 623, 680. 
 
 Casburne v. Casburne, U, 625. 
 Casey's Trust, in re, 136. ^ 
 Cathorpe,CT;?a7-<«, 343. 
 Cator V. Croydon Railway Company, . 63. 
 
 Y. Earl of Pembroke, 758. 
 
 Cave V. Roberts, 325. 
 Cavendish v. Mercer, 520. 
 Cawkwell, exparte, 479. 
 Cawthorn, in re, 380. 
 Cazneau's Legacy, 378. 
 Chadwick v. Heatley, 373. 
 
 V. Holt, 667. 
 
 Challen v. Shippam, 357. 
 
 Chalmer v. Bradley, 289, 470, 471, 472, 
 
 729, 737, 819. 
 Chaloner v. Butcher, 824. 
 Chamberlain v. Agar, 71. 
 Chamberlaine v. Chamberlaine, 70. 
 Chambers, exparte, 517. 
 V. Chambers, 149, 810. 
 
 V. Goldwin, 546, 556. 
 
 v.Minchin, 290, 291,293,305, 311. 
 
 312, 315. 
 
 v. Waters, 462. 
 
 Champion, ex parte, 351. 
 
 V. Rigby, 470. 
 
 Chancellor y. Morecraft, 851. 
 Chandler, in re, 763. 
 Chancey v. May, 851. 
 Chase v. Goble, 477. 
 Chaplin, ex parte, 342. 
 
 V. Chaplin, 57, 138, 178, 621,625. 
 
 V. Horner, 797, 798, 805, 819. 
 
 Chapman v. Blisset, 104, 246, 247. 
 
 V. Gibson, 96. 
 
 Charity Corporation v. Sutton, 290, 545, 
 
 846. 
 Chastenev. exparte, 833. 
 Chedworth v. Edwards, 337, 756, 758. 
 Chelmsford, (Poor of) v. Mildmay, 493. 
 Chertsev Market, in re, 317, 415, 493, 
 
 723, 767, 777, 781, 783, 787, 845. 
 Chester v. Piatt, 635. 
 
 V. Rolfe, 517, 774. 
 
 Chesterfield (Earl of) v. Jansen, 471, 
 
 472, 473, 778. 
 Chetham v. Lord Audley, 547. 
 Chichester v. Bickerstaff, 800. 
 Child v. Gibson, 360. 
 
 V. Stephens, 488. 
 
 Chion, ex parte, 274, 754. 
 Chipping-Sodbury School, in re, 783. 
 Chirton's case, 673. 
 Chitty V. Parker, 183, 184. 
 Cholmondley v. Cholmondley, 168. 
 
 (The Marquis of) v. Lord Clinton, 
 
 618, 730, 732, 733, 737. 
 Christian v. Devereux, 744. 
 Christophers v. White, 320. 
 Christ's Hospital t. Budgin, 177, 216. 
 
 V. Grainger, 23, 717. 
 
 Christy v. Courtenay, 207, 209, 212, 214. 
 
 215. 
 Chumley, ex parte, 826.
 
 TABLE OF CASES. 
 
 li 
 
 Churchill v. Bank of England, 671. 
 
 V. Dibben, 645. 
 
 V. Lady Hobson, 241, 291, 310, 313. 
 
 V. Marks, 136. 
 
 City of London v. Garway, 182, 183. 
 
 V. Richmond, 851. 
 
 Clack V. Holland, 329, 729, 764. 
 Clapham (Inhabitants of) v. Hewer, 779. 
 Clare v. Earl of Bedford, 39. 
 Clare v. Ormond, 599. 
 
 V. Wood, 657. 
 
 Clark V. Burgh, 629. 
 
 V. Cook, 630. 
 
 Clarke's Charity, in re, 781. 
 Clarke v. Danvers, 199, 202, 216. 
 
 V. Earl of Ormonde, 428. 
 
 V. Parker, 533. 
 
 V. Pistor, 123. 
 
 V. Swaile, 464, 471. 
 
 V. Turner, 707. 
 
 Clay V. Sharpe, 427. 
 
 V. Willis, 687, 688, 
 
 Clegg V. Edmondson, 742. 
 Clerk V. Miller, 633. 
 Clerkson v. Bowyer, 18. 
 Clifton T. Lombe, 168. 
 Clinton v. Willes, 637. 
 
 Clough V. Bond, 291, 293, 328, 337, 351, 
 766. 
 
 V. Dixon, 314, 336, 357. 
 
 Clowdsley v. Pellham, 167. 
 Clowes V. Waters, 490, 491. 
 Clutton, ezparie, 40, 579. 
 Coape V. Arnold, 142, 144, 146, 155. 
 Cochrane v. Robinson, 426. 
 Cock V. Goodfellow, 340, 480. 
 Cockburn v. Thompson, 851. 
 Cockell V. Pugh, 838, 839. 
 
 V. Taylor, 729. 
 
 Cocker v. Quayle, 340, 596, 766, 774, 
 
 775. 
 Cockerell v. Cholmley, 472, 778. 
 Cogan V. Stevens, 189. 
 Coke's case, (Sir E.) 646, 673. 
 Colchester v. Lowten, 25. 
 Cole V. Gibson, 472. 
 
 V. Moore, 615, 723, 724, 725. 
 
 V. Muddle, 771. 
 
 V. Wade, 22, 297, 526, 528, 530, 
 
 533, 534, 580, 712. 
 Colebrooke's (Sir George) case, 464, 
 
 473. 
 Colegrave v. Manby, 392. 
 Coles V. Trecothick, 460, 462, 463, 464, 
 Collard v. Hare, 730. 
 Collett V. Morrison, 137. 
 Collingwood v. Pace, 677. 
 Collins V. Archer, 753. 
 
 V. Carey, 320, 549. 
 
 V. Collins, 354,810. 
 
 T. Reece, 486. 
 
 V. Vining, 538, 542. 
 
 V. Wakeman, 182, 183, 195, 196. 
 
 Collinson v. Collinson, 209, 214. 
 
 Collinson v. Lister, 456, 563. 
 
 V. Patrick, 81, 91. 
 
 Collis V. Collis, 338, 867. 
 Colman v. Sarel, 84, 94, 97, 874. 
 Colmore v. Tyndal, 253. 
 Colston V. Lilley, 427. 
 
 Colt V. Colt, 12, 621. 
 Colwall V. Shadwell, 819. 
 Commissioners of Charitable Donations 
 V. Archbold, 710, 711. 
 
 V. Wybrants, 441, 443, 722, 726 
 
 745, 746, 748, 749. 
 
 Compton V. Bedford, 477, 480. 
 
 V. Collinson, 34, 35. 
 
 V. Compton, 658. 
 
 (Lord) V. Oxenden, 798. 
 
 Congreve, exparte, 715. 
 Coningham v. Mellish, 180. 
 
 V. Plunkett, 84. 
 
 Conolly V. Parsons, 421, 424. 
 Consett V. Bell, 101, 846. 
 Conry v. Caulfield, 325, 845. 
 Conyngham v. Conyngham, 243. 
 Cook V. Arnham, 734, 752. 
 
 V. Duckenfield, 180. 
 
 V. Fountain, 173. 
 
 V. Fryer, 243. 
 
 V. Gregson, 688. 
 
 V. Gwavas, 179. 
 
 V. Hutchinson, 177, 180, 181. 
 
 V. Parsons, 513. 
 
 Cooke, ex parte, 136. 
 
 V. Blake, 252. 
 
 V. Cholmondeley, 218. 
 
 V. Crawford, 237, 265, 266, 528, 
 
 532, 533. 
 
 V. Stationers' Company, 182, 190, 
 
 193, 194, 195, 197. 
 
 Cookson V. Cookson, 823, 824. 
 
 V. Reay, 806, 816. 
 
 Coope V. Carter, 765. 
 Cooper, ex parte, 613. 
 
 V. Douglas, 517. 
 
 V. Fynmore, 605. 
 
 V. Jones, 893. 
 
 V. Thornton, 596. 
 
 V. Wyatt, 135, 136. 
 
 Cooper's Trust, in re, 191, 193, 808. 
 Cooth V. Jackson, 205. 
 
 Cope T. Parry, 842. 
 Copeman v. Gallant, 274, 275, 277, 278. 
 Copper Mining Company v. Beach, 425. 
 Copperthwaite v. Tuite, 633. 
 Coppin V. Fernyhough, 218, 222, 224. 
 384, 397, 398, 729. 
 
 V. Gray, 634. 
 
 Corbett v. Barker, 733. 
 Cordal's case, 251. 
 Corder v. Morgan, 427. 
 Cordwell v. Mackrill, 727, 728. 
 Corubury (Lord) v. Middleton, 12, 600, 
 
 615. 
 Cornish v. Mew, 395. 
 Cornthwaite v. Frith, 481, 482.
 
 lii 
 
 L E W I N 
 
 ON THE LAW OF TRUSTS, ETC. 
 
 Cory V. Gertcken, 39. | 
 
 Corrton v. Helyar, 8. 
 Costeker v. Horrox, 8G7. 
 Gotham v. West, 517. 
 Gotteen v. Missing, 81, 91. 
 Gotterell v. Purchase, 734. 
 GottinErham v. Shrewsbury, 845. 
 Cottington V. Fletcher, 62, 63, 137, 178, 
 
 179. 
 Gotton V. Clark, 877. 
 Court V. Jeffery, 458, 849. 
 Courtenay v. Courtenay, 583. 
 Courthorpe v. Heymau, 12, 600. 
 Courtois, in re, 378. 
 Gousen, exparie, 276, 714. 
 Coventry (Mayor of) v. Coventry, 97, 
 584. 
 
 V. Atty.-Gen., 711. 
 
 V. Hall, 751. 
 
 Covington, in re, 380. 
 Cowdery v. Way, 633. 
 Gowo-ill V. Lord Oxmantown, 418. 
 Cowfey V. Hartstouge, 538, 806, 808. 
 Cowman v. Harrison, 171. 
 Cowstad T. Cely, 847. 
 Gowper v. Earl Cowper, 680. 
 Cox V. Barnard, 94, 853. 
 
 V. Bateman, 204, 238, 757. 
 
 V. Cox, 376, 433. 
 
 V. Dolman, 748, 749. 
 
 V. Parker, 14, 321, 679. 
 
 Cox's case (Sir Charles), 687. 
 
 Coysegame, ex parte, 277. 
 
 Grabb v. Crabb, 56, 61. 
 
 Crabtree V. Bramble, 792,794, 805,806, 
 823. 824. 
 
 Crackelt v. Bethune, 357, 359, 362, 875. 
 
 Gradock v. Piper, 320, 550, 655. 
 
 Craigdallie v. Aikman, 497. 
 
 Grallan v. Oulton, 484. 
 
 Cramer v. Cramer, 890, 904. 
 
 Cranch v. Cranch, 808. 
 
 Crane v. Drake, 455, 456, 459. 
 
 Cranstoun v. Johnston, 48. 
 
 Crawford, ex parte, 479. 
 
 Crawley v. Crawley, 118, 808. 
 
 Crawshay v. Collins, 321, 548. 
 
 Creagh v. Blood, 16, 232. 
 
 Creed v. Covile, 12, 683. 
 
 V. Creed, 236, 847. 
 
 V. Perry, 372. 
 
 Creuze v. Hunter, 489. 
 
 Crewe v. Dicken, 233, 237, 297, 449 
 531, 532, 533, 534. . 
 
 Cripps V. Jee, 178. 
 
 Crisp V. Heath, 650. 
 
 V. Spranger, 226, 292, 459. 
 
 Crispe v. Blake, 606. 
 
 Croft V. Adam, 696. 
 
 V. Slee, 183, 190. 
 
 Crofton V. Ormsby, 725. 
 Crofts V. Middleton, 634. 
 Grompton t. North, 181. 
 Crook V. Ingoldsby, 572. 
 
 Crooke v. Brooking, 63, 76, 77. 
 Crop V. Norton, 63, 200, 218. 
 Cropper v. Mellersh, 855. 
 Crosby v. Church, 635, 640, 645. 
 Crosley v. Archdeacon of Sudbury, 261. 
 Crosse v. Smith, 296. 
 Crossley v. Crowther, 718. 
 Crouch V. Citizens of Worcester, 506, 
 
 508. 
 Crowe V. Ballard, 460, 470, 472, 473. 
 
 V. Crisford, 810. 
 
 Croyden's Trust, 380. 
 
 Crozier v. Crozier, 156, 
 
 Cruse V. Barley, 182, 183, 190, 195. 
 
 Cruwys v. Colman, 167, 169, 704, 706. 
 
 Cuddv V. Waldron, 857. 
 
 Cuff V.Hall, 416, 527. 
 
 Cullingworth v. Lloyd, 486. 
 
 Culpepper v. Aston, 179, 414, 428, 429, 
 
 434. 435. 
 Cummins v. Cummins, 238, 239, 240, 
 319. 
 
 Cunliffe v. Cunliffe, 168. 
 
 Cunningham v. Moody, 621, 680, 793, 
 794, 819, 820. 
 
 Curling v. May, 806. 
 
 Currant v. Jago, 216. 
 
 Curre v. Bowyer, 655. 
 
 Currer v. Walkley, 435. 
 
 Currie, exparie, 833. 
 
 Curteis v. Candler, 367. 
 
 Curtis T. Curtis, 621, 622, 753, 755. 
 
 V. Lukin, 111, 112, 597. 
 
 V. Price, 253. 
 
 V. Pdppon, 169, 171. 
 
 Cusack V. Gusack, 147. 
 
 Custance v. Bradshaw, 807. 
 
 V. Cunningham, 179. 
 
 Cuthbert v. Baker, 432. 
 
 Cutterback v. Smith, 488. 
 
 Dack's case (Sir John,) 43, 677, 678. 
 Dakins v. Berisford, 122. 
 Dalbiac v. Dalbiac, 643. 
 Dale, ex parte, 278. 
 D'Almaine v. Anderson, 575. 
 Daniel v. Ubley, 35. 
 
 V. Warren, 368, 810. 
 
 Daniels v. Davison, 725. 
 
 D'Arcv V. Blake, 622, 625, 626, 755. 
 
 Darcy V. Hall, 318. 
 
 Darke v. Martvn, 337. 
 
 Darley v. Darley, 97, 121, 122, 123. 
 
 Darlington, ex parte, 517. 
 
 D'Arnay v. Chesneau, 276. 
 
 Darwell v. Darwell, 310. 
 
 Davall V. New River Company, 321, 
 
 679. 
 Davenport v. Coltman, 182, 183, 184. 
 
 T. Stafford, 356. 
 
 Davenport's Charity, re, 718, 899. 
 Davers v. Dewes, 196, 197. 
 Davey v. Miller, 885. 
 I David V. Frowd, 375.
 
 TABLE OF CASES. 
 
 liii 
 
 Davidson v. Foley, 179, 191, 650. 
 
 V. Gardner, 460, 633. 
 
 Davies, re, 895, 901. 
 
 V. Ashford, 823. 
 
 V. Austen, 518. 
 
 v. Davies, 147, 258, 727. 
 
 V. Goodhew, 806, 807. 
 
 V. Thornycroft, 128. 
 
 V. Weld, 407. 
 
 V. Westcomb, 421. 
 
 Davis, ex parte, 575. 
 
 V. Dendy, 556. 
 
 V. Dysart, 227. 
 
 v. Jenkins, 498, 779. 
 
 v. Kirk, 680. 
 
 V. Front, 121. 
 
 V. Spurling, 226, 290, 292, 293, 
 
 459. 
 
 V. Strathmore (Earl of) 672. 
 
 Davy V. Hooper, 700. 
 
 ^ V. Pepys, 646. 
 
 T. Seys, 873. 
 
 Dawson v. Clarke, 179, 180, 181, 197, 
 317, 557. 
 
 V. Hearn, 597. 
 
 V. Massey, 359. 
 
 Day v. Croft, 557, 870. 
 
 Dean v. Allen, 426. 
 
 Dearden, ira re, 836. 
 
 Dearie v. Hall, 605, 607. 
 
 De Clifford, in re, 836. 
 
 Deerhurst (Lord) v. Duke of St. Albans, 
 163. 
 
 Deeth v. Hale, 597, 819. 
 
 Deg V. Deg, 63, 204, 206, 238, 757. 
 
 Degg's case, 828. 
 
 Delane v. Delane, 207. 
 
 Delauney v. Barker, 274, 275. 
 
 Deloraine (Lord) v. Browne, 732, 734, 
 735, 738. 
 
 De Manneville v. Crompton, 543. 
 
 Dennis v. Badd, 227, 830. 
 
 Denton v. Davies, 64, 757, 762, 764. 
 
 V. Denton, 589, 592. 
 
 Deptford (Churchwardens of) v. Sketch- 
 ley, 106, 107. 
 
 Derbishire v. Home, 633, 765, 775, 778. 
 
 Devenish v. Baines, 60, 71. 
 
 Devey v. Peace, 575. 
 
 T. Thornton, 367, 595, 876. 
 
 Devon v. Watts, 477, 480. 
 
 Dew V. Clarke, 834. 
 
 Dewdney, ex parte, 731. 
 
 Dibbs V. Goren, 373. 
 
 Dickenson v. Dickenson, 420, 430. 
 
 Dickinson v. Shaw, 211. 
 
 Dickenson v. Player, 340. 
 
 Dickson, re, 558, 562. 
 
 Digby V. Howard, 643. 
 
 V. Irvine, 635, 666, 669. 
 
 V. Langworth, 602. 
 
 T. Legard, 182, 183. 
 
 Dike V. Ricks, 429. 
 
 Dillon V. Coppin, 81, 84, 94. 
 
 Dillon V. Plaskett, 662. 
 Dimes V. Scott, 291, 353, 815. 
 Dimsdale v. Dimsdale, 94. 
 Dinwiddle v. Bailey, 753. 
 Disher v. Disher, 797. 
 Dix V. Burford, 243. 
 Dixon V. Olmius, 71, 122. 
 
 V. Dawson, 181. 
 
 V. Gayfere, 745, 816, 823. 
 
 V. Saville, 621, 625. 
 
 Dobson T. Carpenter, 426. 
 
 V. Land, 319, 332, 165. 
 
 Docker v. Somes, 318, 319, 321, 361, 
 
 362. 
 Docksey v. Docksey, 181. 
 Dod V. Dod, 147. 
 
 Dodson V. Hay, 154, 156, 621, 622, 793. 
 Doe V. Amey, 667. 
 
 V. Ball, 478. 
 
 V. Barrel!, 667. 
 
 V. Barthrop, 253. 
 
 V. Bennett, 264. 
 
 V. Biggs, 249. 
 
 V. Bolton, 252. 
 
 V. Cadogan, 258. 
 
 V. Cafe, 141, 253, 254, 259. 
 
 V. Claridge, 247. 
 
 T. Cockell, 106, 107. 
 
 V. Danvers, 61, 617. 
 
 V. Edlin, 247. 
 
 V. Ewart, 252. 
 
 T. Field, 247. 
 
 V. Godwin, 301, 419. 
 
 V. Gi-eenhill, 065. 
 
 v. Harris, 182, 233, 236, 237, 243. 
 
 V. Hawkins, 505. 
 
 V. Hawthorn, 132. 
 
 V. Hicks, 253. 
 
 V. Hiley, 106, 107. 
 
 V. Homfray, 247, 250. 
 
 V. Hughes, 441, 442, 444, 445, 447. 
 
 V. Ironmonger, 254. 
 
 V. Jones, 498, 590. 
 
 V. Keen, 753. 
 
 T. Lea, 251, 255. 
 
 V. Lightfoot, 265. 
 
 V. M'Kaeg, 498, 590. 
 
 V. Munro, 132. 
 
 V. NichoUs, 249, 253. 
 
 V. Norton, 717. 
 
 V. Passinghara, 247. 
 
 V. Phillips, 586, 748. 
 
 V. Pott, 591. 
 
 V. Pratt, 250. 
 
 V. Price, 288. 
 
 V. Roe, 527, 580. 
 
 V. Rusham, 93. 
 
 V. Shotter, 250. 
 
 V. Simpson. 250, 251, 254, 259. 
 
 V. Smyth, 236. 
 
 V. Sotlieron, 252. 
 
 V. Staple, 590, 591. 
 
 V. Svbourn, 591. 
 
 V. Terry, 106, 107.
 
 liv 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 Doe V. Thompson, 45. 
 
 V. Underdown, 195. 
 
 V. Willan, 256. 
 
 v. "Woodhouse, 250. 
 
 V. Wroot, 591. 
 
 Dolder v. Bank of England, 865. 
 Dollond V. Johnson, 689. 
 Dolman v. Pritman, 489. 
 Dolton V. Hewen, 435. 
 
 V. Young, 444. 
 
 Dommett v. Bedford, 136. 
 Donaldson y. Donaldson, 81, 91. 
 Donne v. Hart, 26, 629. 
 Donohoe v. Conrahy, 65. 
 Doody T. Higgins, 856. 
 Doolan v. Blake, 632. 
 Doran v. Wiltshire, 433, 435. 
 Dorchester (Lord) v. Earl of Effingham, 
 
 332. 
 Dormer's case, 826, 827. 
 
 T. Fortescue, 409, 751, 752, 753, 
 
 754 755 756. 
 Dornford v. Dornford, 358, 359, 364, 
 
 766, 771, 772. 
 Douglas Y. Allen, 484. 
 
 Y. Browne, 290. 
 
 Y. CongreYe, 815. 
 
 Y. Horsfall, 844. 
 
 DoYe V. EYcrard, 235, 242. 
 DoYcnby Hospital, in re, 782. 
 DoYer, ex parte, 243, 838, 880. 
 Dowling Y. Belton, 830. 
 
 Y. Hudson, 434. 
 
 Dowling Y. Maguire, 632, 634, 635. 
 Downe (Viscount) y. Morris, 14, 18, 
 
 283, 285, 322. 
 Downs Y. Thomas, 850. 
 
 Y. Worrall, 700. 
 
 Downes y. Grazebrook, 414, 461, 463, 
 
 464. 
 Downing v. Townsend, 95. 
 Dowtie's case, 676. 
 Doyle Y. Blake, 232, 240, 289, 292, 310, 
 
 311, 313, 366. 
 Doyley y. Attorney-General, 297, 533, 
 
 534, 696, 700, 704, 712. 
 Doyly Y. Sherratt, 298. 
 Drake y. Whitmore, 417. 
 Drakeford y. Wilks, 70. 
 Drakeley's Trust, in re, 118. 
 Drant y. Vause, 808. 
 Drayson y. Pocock, 414, 450, 712. 
 Drew V. Harman, 842. 
 Drever v. Mawdesley, 541. 
 Drohan v. Drohan, 456, 522. 
 Drosier v. Brereton, 82, 345, 350. 
 Drummond y. Duke of St. Alban's, 751 , 
 
 756. 
 Drury v. Scott, 642. 
 Duberley y. Day, 20, 629. 
 Dubless V. Flint, 864, 866. 
 Dubois, ex parte, 269. 
 Dudgeon y. Cormley, 858. 
 Dudley (Lord) y. Lady Dudley, 794. 
 
 Du Hourmelin y. Sheldon, 43, 807. 
 
 Dumas, ex parte, 274, 276. 
 
 Dummer y. Corporation of Chippenham, 
 
 31. 
 Dumoncel Y. Dumoncel, 43, 132, 621. 
 Dunbar y. Tredennick, 466, 469, 470, 
 
 472, 473, 725. 
 Duncan y. Chamberlayne, 613. 
 Dunch V. Kent. 318, 428, 435, 486. 
 Duncombe v. Mayer, 592. 
 
 V. Nelson, 517. 
 
 Dundas y. Blake, 746. 
 
 Y. Dutens, 648. 
 
 Dunkley v. Dunkley, 369, 370. 
 
 Dunman, ex parte, 422. 
 
 Dunnage y. White, 181. 
 
 Dunne y. Dunne, 514. 
 
 Dunster y. Glengal, 608. 
 
 Durour y. Motteux, 196, 197. 
 
 Duttou Y. Morrison, 476, 477, 478, 479. 
 
 Dyer y. Dyer, 200, 207, 209, 211, 212, 
 
 213. 
 
 Eade Y. Bade, 167, 169, 171. 
 
 Bales Y. England, 167, 169, 283. 
 
 Barlom Y.Saunders, 792, 796,806, 816. 
 
 East Y. Ryall, 506,876. 
 
 East Greenstead's case, 726. 
 
 Bast India Company v. Henchman, 225. 
 
 Eaton Y. Smith, 531. 
 
 Ebrand y. Dancer, 200, 216. 
 
 Bccleston y. Skelmersdale, 845. 
 
 Eckhardt y. Wilson, 477, 479. 
 
 Bddleston y. Collins, 36. 
 
 Eden y. Foster, 492, 493, 499. 
 
 Edenborough y. Archbishop of Canter- 
 bury, 107, 109, 110, 777, 874. 
 
 Edmonds y. Dennington, 631. 
 
 V. Peake, 427. 
 
 Edwards Y. Fashion, 202. 
 
 Y. Freeman, 20. 
 
 Y. GraYCS, 19. 
 
 V. HarYey, 421, 872. 
 
 V. Jones, 81, 88. 
 
 Y. Lewis, 220. 
 
 Y. Morgan, 751, 756. 
 
 V. Pike, 80, 205. 
 
 Y. Tuck, 118, 119. 
 
 Y. Countess of Warwick, 797, 805, 
 
 806, 820, 822, 824. 
 
 Eidsforth y. Armstead, 441, 446, 447. 
 
 Eland y. Eland, 435, 436, 437, 444, 456, 
 458. 
 
 Elborne y. Goode, 116, 118. 
 
 Eldridge y. Knott, 736. 
 
 Elibank (Lady) y. Montolieu, 628. 
 
 Ellerthorpe, in re, 883. 
 
 Ellice, ex parte, 343. 
 
 Elliot Y. Brown, 202. 
 
 Y. Edwards, 725. 
 
 Y. Elliot, 177, 207, 211, 214, 215. 
 
 Y. Merriman, 435, 441, 444, 455, 
 
 738. 
 
 Ellis, ex parte, 274.
 
 TABLE OP CASES, 
 
 Iv 
 
 Ellis V. Atkinson, 123. 
 
 V. Maxwell, 116. 
 
 V. Nimmo, 96, 97, 99. 
 
 V. Selbj-, 182. 
 
 Ellison V. Airey, 551. 
 
 V. Ellison, 81, 84, 89, 99. 
 
 V. Elwin, 628. 
 
 Ellison's Trust in re, 236, 895. 
 
 Elliston, ex parte, 277. 
 
 Elmsley v. Young, 707. 
 
 Else v.^Osboru, 407. 
 
 Elsee, ex parte, 557. 
 
 Eltham (Inhabitants of) v. Warreyn, 
 
 198, 506. 
 Elton V. Harrison, 444. 
 Emblyn v. Freeman, 182. 
 Emelie v. Emelie, 341. 
 Emmett v. Dewhurst, 486. 
 Emuss V. Smith, 808. 
 England (Bank of) v. Lunn, 32, 33. 
 
 V. Moffat, 32, 33. 
 
 V. Parsons, 32, 33. 
 
 England (Mary), in re, 408. 
 
 V. Downs, 131, 244. 
 
 Entwistle v. Markland, 813. 
 
 Erskine's Trust, in re, 380. 
 
 Estwick T. Caillaud, 474, 475, 476, 477, 
 
 480, 648. 
 Etty V. Bridges, 608, 611, 614, 863. 
 Evans v. Bagwell, 482, 483. 
 
 V. Bicknell, 592, 775. 
 
 V. Brown, 14, 18, 285. 
 
 V. Coventry, 870. 
 
 V. Hellier, 114, 117, 119. 
 
 V. Jackson, 416, 523. 
 
 V. John, 241. 
 
 V. Stokes,' 852. 
 
 V. Tweedy, 485. 
 
 Evelyn v. Forster, 835, 839. 
 
 v. Templar, 93, 94, 97, 99. 
 
 Everett, in re, 377. 
 
 V. Prythergch, 870. 
 
 Evroy v. Nicholas, 39. 
 
 Ewer V. Corbet, 455, 456, 458. 
 
 Exel V. Wallace, 145. 
 
 Eyre's case, 820. 
 
 Eyre v. Dolphin, 218, 220, 224. 
 
 V. Marsden, 118, 119, 183. 
 
 V. Countess of Shaftesbury, 299, 
 
 300, 536. 
 
 Fagg's Trust, in re, 380, 577. 
 
 Fain v. Ayres, 227. 
 
 Falkland, Lord v. Bertie, 753. 
 
 Falkner v. Lord Wynford, 700. 
 
 Fane v. Fane, 59, 61. 
 
 Farquharson v. Seton, 845. 
 
 Farr v. Newman, 261, 262, 274, 278. 
 
 T. Sheriffe, 857, 858. 
 
 Farrar v. Winterton, 655. 
 Farrell v. Smith, 375. 
 Farrington v. Knightly, 19. 
 Faulkner v. Elger,' 109. 
 Fauntleroy, in re, 713. 
 
 Fawcet v. Lowther, 680. 
 Fawcett v. Whitehouse, 225. 
 Fearns v. Young, 558, 808. 
 Fearon v. Webb, 107, 108. 
 Featherstonhangh v.Fenwick, 218, 220. 
 Fell V. Brown, 849. 
 
 V. Lutwidge, 875. 
 
 Fellowes v. Till, 839. 
 
 V. Mitchell, 304, 305, 337, 774. 
 
 Fellows's Settlement, in re, 897, 901. 
 Feltham's Trusts, in re, 380. 
 Fenniliteau, ex parte, 835. 
 Fenwick v. Greenwell, 700, 765. 
 Feoffees of Heriot's Hospital v. Ross, 
 
 557, 561. 
 Fergus (Executors of) v. Gore, 484. 
 Ferguson v. Livingstone, 734. 
 
 V. Tadman, 174. 
 
 Ferraby v. Hobson, 505, 506. 
 Fernie v. Maguire, 331. 
 Ferrars v. Cherry, 725, 726. 
 Fettiplace v. Gorges, 642. 
 Fidgeon v. Sharp, 480. 
 Field's Trust, in re, 381. 
 
 • Mortgage, 265. 
 
 Field, ex parte, 860. 
 
 V. Donoughmore, 367, 486, 595. 
 
 V. Evans, 123. 
 
 V. Lonsdale, 101. 
 
 V. Sowle, 634, 635, 640, 641. 
 
 Finch's case (Sir Moyle), 4, 9, 16, 18, 
 
 56, 287. 
 Finch V. Finch, 200, 207, 209, 215. 
 
 V. Earlof Winchelsea,99, 174, 279, 
 
 280. 
 
 V. Hollingsworth, 701, 704. 
 
 Finden v. Stephens, 102. 
 Finlay v. Howard, 710. 
 Fishbourne, in re, 451. 
 Fish V. Klein, 39. 
 Fitch V. Weber, 182, 184. 
 Fitzgerald, in re, 583, 713. 
 
 V. Fitzgerald, 631. 
 
 V. Jervoise, 415, 792, 816. 
 
 V. O'Flaherty, 876. 
 
 V. Pringle, 341, 877. 
 
 Fitzgibbon v. Blake, 634, 642. 
 Fitzroy v. Howard, 384. 
 Flack^s settlement, in re, 378. 
 Flanagan v. Flanagan, 177. 
 
 V. Nolan, 365, 876, 877. 
 
 Flanders v. Clark, 536, 696. 
 Flemming v. Page, 725. 
 Fletcher, ex parte, 381. 
 
 V. Ashburner, 177, 183, 793, 819. 
 
 V. Chapman, 189. 
 
 V. Fletcher, 81, 94, 719. 
 
 V. Robinson, 794. 
 
 V. Sidley, 93. 
 
 V. Stevenson, 375, 426. 
 
 V. Walker, 333. 
 
 Flint V. Warren, 1 84. 
 
 Flitcroft, in re, 893. 
 
 Fogin V. Andrews, 877, 979.
 
 Ivi 
 
 LEWIX ON THE LAW OF TRUSTS, ETC. 
 
 Folev, ex parte, 849. 
 
 ^"t. Burnell, 152, 161, 163, 261, 280, 
 
 TIS. 
 
 T.Hill, 731,^32. 
 
 V. Parry, 167. 
 
 V. Wontner, 301, 419, 497, 498, 
 
 527, 580. 
 Follett V. Tjrer, 623. 
 Folj's case, 488, 489. 
 Fooue V. Blount, 792, 796. 
 Foord, ex parte, 477. 
 Footner v. Sturgis. 662. 
 Forbes v. Ball, 167, 706. 
 
 V. Peacock, 430, 434, 435, 437, 
 
 440, 441, 442, 445, 453, 458. 
 
 V. Ross, 339, 359, 361, 365. 
 
 Ford V. Hopkins, 758. 
 
 V. Rvan, 331, 433, 453. 
 
 V. White, 729. 
 
 Ford's Charity, in re, 785. 
 Forderr. Wade, 621, 751. 
 Fordham v. Wallis, 373. 
 Fordyce v. Bridges, 533, 712. 
 
 V. Willis, 25, 56, 57, 59, 61, 267. 
 
 Forrest v. Elwes, 
 
 Forshaw v. Higginson, 583, 584. 
 
 Forster v. Hale, 61, 62, 63, 64, 65. 
 
 Fortescue v. Barnett, 86. 
 
 Forth V. Duke of Norfolk, 650, 653, 655, 
 
 665. 
 Fosbrooke v. Balguv, 217, 225, 318, 
 
 319. 
 Foster v. Blackstone, 605, 008, 612, 650, 
 653, 656. 
 
 T. Crabb, 592. 
 
 V. Cockerell, 608. 
 
 T. Deacon, 174. 
 
 V. Foster, 359. 
 
 V. Handlej-, 692. 
 
 V. Hodgson, 734. 
 
 Fothergill v. Fothergill, 97. 
 
 T. Kendrick, 650. 
 
 Fountaine v. Pellett, 559. 
 Fourdrin v. Gowdey, 43. 
 Fowler v. Churchill, 671. 
 
 v. Fowler, 643^ 644. 
 
 V. Garlike, 181. 
 
 V. Reynall, 346. 
 
 Fowlser, exparte, 791. 
 
 Fox V. Bishop of Chester, 136. * 
 
 T. Fisher, 277. 
 
 V. Mackreth, 400, 469, 473. 
 
 Foxall, in re, 713. 
 
 Fozard's Trust, in re, 379, 816. 
 
 Fozier v. Andrews, 877, 879. 
 
 France v. Woods, 332. 
 
 Francis v. Francis, 345, 561. 
 
 Francis t. Grover, 746. 
 
 Francis v. Wigsell, 035, 640. 
 
 Franco v. Franco, 317, 629, 851. 
 
 Frank v. Frank, 816. 
 
 Franklin v. The Bank of Ent^land, 32. 
 
 V. Frith, 351, 359, 875, 878. 
 
 V. Green, 519. 
 
 Franklj-n, ex parte, 343. 
 Franks v. Price, 157. 
 Eraser v. Palmer, 320, 549. 
 Frazer t. Moor, 734. 
 Freake v. Cranefeldt, 485. 
 Frederick v. Aynscombe, 796. 
 
 V. Frederick, 806. 
 
 Freeman v. Fairlie, 547, 599, 864, 867. 
 
 T. Tatham, 64. 
 
 V. Taylor, 650. 
 
 Freemoult v. Dedire, 174, 488. 
 Freme v. Woods, 332. 
 Fremington School, in re, 781. 
 French, ex parte, 348. 
 
 V. Baron, 546. 
 
 T. Davidson, 538, 539, 543. 
 
 V. Hobson, 777. 
 
 Frewin v. Charleton, 409. 
 Friendly Society, ex parte, 783. 
 Frost's Settlement, in re, 895. 
 Fulham, in re, 901. 
 
 V. Jones, 796. 
 
 Fuller V. Knight, 349, 415, 771. 
 
 T. Lance, 476. 
 
 Fussell V. Elwin, 854. 
 
 Fulton V. Gilmour, 374. 
 
 Fursaker v. Robinson, 94. 
 
 Fust, ex parte, 343. 
 
 Putter V. Jackson, 867. 
 
 Fyler v. Fyler, 226, 358, 562, 766, 774. 
 
 Fyson v. Pole, 734. 
 
 Gafifee, in re, 131. 
 
 Gainsborough v. Gainsborough, 181. 
 
 Gale V. Pitt, 356. 
 
 V. Williamson, 477. 
 
 Galliers v. Moss, 264. 
 Galway v. Butler, 857. 
 Gannon v. W^hite, 89. 
 Gardiner v. Fell, 02, 753, 754. 
 Gardiner v. Marshall, 370. 
 
 V. Rowe, 63. 
 
 Garey v. Wliittingham, 858. 
 Garfoot V. Garfoot, 173. 
 Garland, ex parte, 273. 
 Garrard v. Lauderdale, 81, 84, 99, 101, 
 476, 482, 483. 
 
 T. Tuck, 586, 590, 748. 
 
 Garrat v. CuUum, 275. 
 Garratt v. Lancefield, 426. 
 Garrett v. Noble, 415. 
 
 v.- Wilkinson, 216. 
 
 Garth v. Baldwin, 141, 142, 247. 
 
 V. Cotton, 156, 408, 753. 
 
 Gascoigne t. Thwing, 204, 205. 
 Gaskell v. Gaskell, 100. 
 
 V. Harman, 792. 
 
 V. Holmes, 368. 
 
 Gaston v. Frankum, 634. 
 Gaunt V. Taylor, 857, 858. 
 Gayner's case, 477. 
 Geary v. Bearcroft, 57, 260, 590. 
 Geaves, ex parte, 277, 772. 
 Gennys, ex parte, 274, 276.
 
 TABLE OF CASES. 
 
 Ivii 
 
 Gent v. Harris, 369. 370. 
 George v. Bank of England, 61. 
 
 V. Howard, 179. 
 
 Gibbons v. Baddall, 725. 
 Gibbs V. Glamis, 482. 
 
 V. Herring, 313. 
 
 V. Ougier, 183. 
 
 V. Rumsey, 181, 182, 183, 195. 
 
 Gibson v. Bott, 814, 815. 
 
 V. Jeyes, 460, 461, 463. 
 
 v. Lord Montford, 251. 
 
 V. Rogers, 616. 
 
 V. Winter, 269. 
 
 Giddings v. Giddings, 218, 220, 221, 
 
 223, 224, 225, 397, 398. 
 Gifford V. Hort, 733. 
 
 V. Manley, 238. 
 
 Gilchrist v. Cator, 370. 
 
 Giles V. Dyson, 557. 
 
 Gill V. Attorney-General, 314. 
 
 Gillam, ex parte, 833. 
 
 Gillespie v. Alexander, 375. 
 
 Gillett V. Peppercorn, 225. 
 
 Gillibrand v. Goold, 421, 430. 
 
 Gillies V. Longlands, 818, 819, 823. 
 
 Girling v. Lee, 488. 
 
 Gladding v. Yapp, 182. 
 
 Gladdou v. Stoneman, 870. 
 
 Gladstone v. Hadwen, 274. 
 
 Glaister v. Hewer, 216. 
 
 Glass V. Oxenhara, 847. 
 
 Glenorchy (Lord) v. Bosville, 141, 144, 
 
 154. 
 Glover v. Monckton, 251, 256. 
 
 V. Strothoflf, 53. 
 
 Glynn v. Lock. 330, 433. 
 
 Gobe V. The Earl of Carlisle, 18. 
 
 Goddard, in re, 836. 
 
 Goddard v. Macaulay, 835, 881. 
 
 Godden v. Crowhurst, 134. 
 
 Godfrey v. Dixon, 43, 132. 
 
 V. Furzo, 274. 
 
 V. "Watson, 556, 557. 
 
 Godolphin v. Godolphin, 34, 525, 526. 
 
 Godsall V. Webb. 91. 
 
 Godwin v. Winsmore, 621, 622. 
 
 Goffe V. Whalley, 684. 
 
 Golding T. Yapp, 59, 69. 
 
 Goldsmid v. Stonehewer, 855. 
 
 Gomley v. Wood, 549, 550. 
 
 Goode V. West, 376, 377. 
 
 Goodenongh v. Goodenongh, 756. 
 
 V. Treraamondo, 810. 
 
 Goodere v. Lloyd, 181. 
 Goodrick v. Brown, 602, 604. 
 Goodright v. Hodges, 60, 199, 203, 205, 
 207. 
 
 V. Opie, 195. 
 
 V. Wells, 15, 16, 61, 591. 
 
 Goodson V. Ellisson, 367, 595, 600, 850. 
 Goodtitle v. Jones, 591. 
 
 V. La3'man, 252. 
 
 Y. Whitby, 251, 255. 
 
 Goodwin v. Gosnell, 763. 
 
 Goodwin v. Lister, 832. 
 Gordon v. Gordon, 97. 
 
 V. Trail, 558. 
 
 Gore's Charity, in re, 836, 837. 
 
 T. Bowser, 238, 648, 663. 
 
 Gorge's (Lady) case, 209, 212, 216. 
 
 V. Chansey, 521. 
 
 Goring v. Bickerstaff, 12, 600. 
 
 V. Nash, 94, 97, 99. 
 
 Gorst V. Lowndes, 113. 
 Gosling V. Carter, 435, 441, 442, 444, 
 446, 447. 
 
 V. Dorney, 487. 
 
 Goss T. Neale, 474, 475. 
 Gough V. Birch, 458. 
 
 V. Bult, 729, 748. 
 
 Gould V. Fleetwood, 545, 553. 
 Gouldsworth v. Knight, 107, 299. 
 Governess's Institution v. Rusbridger, 
 
 868. 
 Gover, ex parte, 424. 
 Gower v. Eyre, 514. 
 
 V. Grosvenor, 144, 150, 158. 
 
 V. Mainwaring, 22, 526, 697, 699. 
 
 Gowland v. De Faria, 738. 
 
 Grace, ex parte, 218. 
 
 Graham v. Birkenhead, 737, 775. 
 
 T. Fitch, 633. 
 
 V. Lord Londonderry, 386, 395. 
 
 Grange v. Tiving, 35, 36, 37. 
 Grant v. L^'nam, 705. 
 
 V. Mills, 276, 725. 
 
 Gravenor v. Hallum, 194. 
 Graves v. Dolphin, 132, 133. 
 Gray, ex parte, 269. 
 
 "- V. Chaplin, 852. 
 
 V. Gray, 83. 
 
 V. Haig, 599. 
 
 Greatley v. Noble, 634, 639, 756. 
 Greaves v. Powell, 487. 
 Greedy v. Lavender, 628. 
 Green, ex parte, 269, 517. 
 
 V. Ekins, 148. 
 
 V. Holden, 836. 
 
 V. Howard, 699, 707. 
 
 V. Jackson, 197. 
 
 V. Marsden, 170, 171. 
 
 V. Pledger, 866. 
 
 V. Rutherforth, 10, 31, 492, 494. 
 
 V. Spicer, 132, 133. 
 
 V. Stephens, 158, 796. 
 
 Greenfell v. Girdlestone, 736, 737. 
 Greenhill v. Greenhill, 615, 616. 
 Greenhouse, exparte, 496, 711. 
 Greening v. Beckford, 613. 
 Greenwell v. Greenwell, 520. 
 Greenwood v. Churchill, 478. 
 
 v. Evans, 387, 390, 391, 400, 401. 
 
 V. Taylor, 485. 
 
 V. Wakeford, 583, 584, 768. 
 
 Gregory V. Gregory, 305, 306, 310, 462, 
 470, 471. 
 
 V. Henderson, 246, 248. 
 
 V. Lockver. 642.
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 Iviii 
 
 Greislev v. Chesterfield (Earl of), 813. 
 
 Grenviile (Lord) v. Blyth, 279. 
 
 Greswold v. Marsham, 650. 
 
 Grey v. Colville, 12, 682, 689. 
 
 V. Grey, 177, 200, 207, 210, 211, 
 
 212, 213, 214. 
 Grierson v. Eyre, 753. 
 Griesbach v. Freemantle, 823, 824. 
 Grieveson v. Kirksopp, 696, 701, 704, 
 
 807, 808. 
 Griffin, ex parte, 294, 298, 332, 357. 
 
 V. Griffin, 217, 220. 
 
 Griffith V. Evans, 168, 170. 
 
 V. Buckle, 147. 
 
 V. Ricketts, 807. 
 
 Griffiths V. Vera, 114, 117. 
 
 Grigby v. Cox, 632. 
 
 Grimstone, ex j^ arte ^ 825, 826, 827, 830. 
 
 Grogan v. Cooke, 648, 649. 
 
 Groom v. Booth, 851. 
 
 Grosvenor v. Cartwright, 360. 
 
 Groves v. Groves, 138, 200, 204, 205, 207. 
 
 Gubbins v. Creed, 318. 
 
 Gude v. Worthington, 543, 696. 
 
 Guiberts' Trust, 577. 
 
 Guidot V. Guidot, 792, 796, 806. 
 
 Gurner, exparte, 357, 772. 
 
 Guthrie v. Crossley, 480. 
 
 Gwilliams v. Rowel, 173, 300. 
 
 Haberdasher's Company v. Attorney- 
 General, 875. 
 Habergham v. Vincent, 17, 66, 69, 181. 
 Hackett v. M'Namara, 416. 
 Hadley, in re, 572, 895. 
 Hagger, ex parte, 838. 
 Halcott V. Markant, 204, 205, 206. 
 Haldenby v. Spoflforth, 416. 
 Hale V. Allnutt, 480. 
 
 V. Lamb, 94, 97, 221. 
 
 Haley v. Bannister, 114, 118. 
 Halford V. Stains, 118, 120, 177. 
 Hall, in re, 763. 
 
 V. Austin, 854. 
 
 V. Coventry, 752. 
 
 V. Dewes, 301, 528. 
 
 V. Hallett, 46, 358, 359, 301, 460, 
 
 465, 469, 470, 873. 
 
 V. Hugonin, 372. 
 
 V. Jones, 300. 
 
 V. Laver, 101, 561. 
 
 T. Noyes, 461, 470. 
 
 Hall's Charity, in re, 781. 
 Halliburton v. Leslie, 36. 
 Halliday v. Hudson, 179, 181. 
 Hamer's Devisees, 285. 
 Ham's Trust, 380. 
 Hamilton v. Ball, 138. 
 
 v. Fry, 582, 583. 
 
 V. Grant, 731. 
 
 V. Handcock, 833. 
 
 v. Houghton, 488, 489. 
 
 V. Mainwaring, 131. 
 
 V. Wright, 318. 
 
 Hamond v. Hicks, 729. 
 Hampshire v. Bradley, 875. 
 Hampton v. Spencer, 63, 64. 
 Hanbury v. Kirkland, 306, 317, 351. 
 Hancom v. Allen, 341, 351. 
 Hancox, ex parte, 716. 
 
 Handcock ( v.) 833. 
 
 Handick v. W'ilkes, 147. 
 Hands v. Hands, 701, 704. 
 Hankey v. Garret, 359, 361. 
 
 V. Hammond, 273. 
 
 Hanman v. Riley, 485, 855. 
 Hanne v. Stevens, 849. 
 Hanson v. Beverley, 451, 523. 
 
 V. Keatin, 26, 629. 
 
 Hanson, ex parte, 277. 
 Harbert's case, 646, 659. 
 Harcourt v. Seymour, 816, 824. 
 Harden v. Parsons, 304, 305, 310, 314, 
 
 332, 337, 776. 
 Hardey v. Hawkshaw, 807. 
 Harding v. Glyn, 167, 696, 701, 703, 
 704, 706. 
 
 V. Hardrett, 284, 725. 
 
 Hardman, ex parte, 715. 
 
 V. Johnson, 225. 
 
 Hardwick v. Mynd, 290, 422, 434, 447, 
 
 449, 471, 529, 533, 738. 
 Hardwicke (Lord) v. Vernon, 466, 469, 
 
 599. 
 Hardy v. Reeves, 728, 734. 
 Harford v. Furrier, 174. 
 Hargrave v. Tindall, 488. 
 Hargreaves v. Michell, 484, 729. 
 Hargthorpe v. Milforth, 310. 
 
 Harland v. Binks, 476, 483. 
 V. Trigg, 168, 169. 
 
 Harley v. Harley, 627. 
 
 Harman v. Fisher, 480. 
 
 Harmood v. Oglander, 16, 735, 751, 756. 
 
 Harnard v. Webster, 766. 
 
 Harnett v. Macdougal, 130. 
 
 V. Maitland, 514. 
 
 Harris' Trust, in re, 379. 
 
 V. Booker, 665. 
 
 V. Davison, 656. 
 
 V. Horwell, 70. 
 
 V. Mott, 633, 646. 
 
 V. Poyner, 810. 
 
 v. Pugh, 247, 665. 
 
 Harrison v. Borwell, 735. 
 
 in re, 252. 
 
 v. Cage, 428. 
 
 v. Coppard, 227. 
 
 V. Duignan, 746. 
 
 V. Forth, 726. 
 
 V. Graham, 235, 241, 290, 291, 
 
 305, 310. 
 
 V. Harrison, 356. 
 
 V. Hollins, 733. 
 
 V. Naylor, 153, 156. 
 
 V. Pryse, 372, 846. 
 
 V. Stewardson, 843, 852. 
 
 Harrop v. Howard, 130.
 
 TABLE OF CASES. 
 
 lix 
 
 Hartnall, in re, 891, 905. 
 Harte v. French, 713. 
 
 V. Middlehurst, 149. 
 
 Hart V. Tribe, 168. 
 
 Hartford, in re, 713. 
 
 Hartga v. The Bank of England, 32. 
 
 Hartley v. Hurle, 122. 
 
 Harton v. Harton, 247, 255. 
 
 Hartop V. Hoare, 275. 
 
 Hartshorn v. Slodden, 480. 
 
 Hartwell v. Chitters, 687. 
 
 Ilarvej v. Audland, 94. 
 
 V. Harvey, 121, 386, 517, 694, 811, 
 
 851. 
 Harwood t. Wrayman, 685. 
 Hasell, ex f arte, 730. 
 Hassell V. Simpson, 477. 
 Hathorntwaithte v. Russell, 871. 
 Havers v. Havers, 870, 871. 
 Hawker v. Hawker, 251, 256. 
 Hawkins v. Chappell, 318, 415. 
 
 V. Gardner, 61. 
 
 V. Kemp, 237, 449, 532. 
 
 V. Lawse, 685. 
 
 V. Luscombe, 255. 
 
 V. Obeen, 832. 
 
 Hay V. Bowen, 368. 
 
 Hayes v. Kingdome, 177, 201, 210. 
 
 Hayford v. Benlows, 189. 
 
 Haj^s, ex parte, 517. 
 
 Hayton v. Wolf, 234. 
 
 Haytor v. Rod, 805. 
 
 Haywood v. Ovey, 848. 
 
 Head v. Lord Teynham, 596, 848. 
 
 Heap V. Tonge, 94. 
 
 Heardson v. Williamson, 256. 
 
 Hearle v. Greenbank, 34, 35, 36, 526, 
 
 623, 624. 
 Hazeldine, in re, 895. 
 Heath, in the matter of, 714. 
 
 v. Henley, 729. 
 
 V. Percival, 847. 
 
 Heathcote v. Hulme, 359, 361, 363. 
 Heatley v. Thomas, 633, 634, 640. 
 Heaton, ex parte, 772. 
 
 v. Marriott, 304. 
 
 Heenan v. Berry, 745. 
 
 Heighington v. Grant, 363, 876. 
 
 Hemming, ex parte, 380. 
 
 Henchman v. Attorney-General, 194, 
 
 198, 325, 795. 
 Henderson v. M'lver, 557. 
 Henley v. Stone, 842. 
 
 V. Philips, 877. 
 
 V. Webb, 817, 821, 823. 
 
 Hennessey, exparte, 609, 610, 612, 613. 
 Herbert, ex parte, 277. 
 Hercy v. Ballard, 751, 756. 
 
 V. Dinwoody, 471, 738, 739. 
 
 Hereford v. Ravenhill, 189, 806. 
 
 Heron v. Heron, 204, 206. 
 
 Hertford (Borough of) v. Poor of same 
 
 Borough, 878. 
 (Marquis of) in re, 860, 864. 
 
 Hethersell v. Hales, 559. 
 Hewett V. Hewett, 529, 696. 
 
 V. Foster, 315, 316, 876. 
 
 Hewitt V. Wright, 184. 
 
 V. Morris, 814. 
 
 Hey's Will, in re, 893. 
 
 Hibbard v. Lambe, 22, 531, 533, 536, 
 
 710, 712. 
 Hibbert v. Cooke, 514. 
 
 V. Hibbert, 101. 
 
 Hichens v. Congreve, 225, 851. 
 Hichens v. Kelly, 842. 
 Hickling v. Boyer, 426. 
 Hicks V. Hicks, 359, 361, 777. 
 
 V. Sallitt, 753, 754, 
 
 Hickson v. Fitzgerald, 234, 874. 
 Hide V. Heywood, 557, 875. 
 Higginson v. Barneby, 165. 
 
 V. Kelly, 136. 
 
 Highway v. Banner, 148, 604. 
 Higinbotham v. Holme, 136. 
 Hilchius V. Hilchins, 251. 
 Hill, ex parte, 136. 
 
 V. Buckley, 415. 
 
 V. Cock, 183. 
 
 V. Edmonds, 630. 
 
 V. Gomme, 765. 
 
 V. Hill, 164, 165. 
 
 V. Bishop of London, 172, 180, 
 
 269, 318. 
 
 V. Magan, 560, 872. 
 
 V. Simpson, 455, 456, 457, 459. 
 
 Hillary v. Waller, 736, 738. 
 Hilliard, in re, 359, 361. 
 Hinckley v. Maclarens, 707. 
 Hind V. Poole, 420, 530. 
 Hindle v. Taylor, 167. 
 Hinde v. Blake, 867, 869. 
 Hindmarsh v. Southgate, 39. 
 Hinton, exparte, 135. 
 
 v. Hinton, 260, 276, 279. 
 
 Hinves v. Hinves, 811. 
 Hitch V. Leworthy, 296. 
 Hixon V. Wytham, 487. 
 Hoare v. Parker, 594. 
 
 v. Peck, 734, 735. 
 
 Hobart v. Countess of Suffolk, 179. 
 Hobby V. Collins, 818. 
 Hobson V. Bell, 423, 612. 
 
 V. Trevor, 751. 
 
 V. Staneer, 842. 
 
 Hockley v. Bantock, 341, 356. 
 
 V. Mawbey, 700. 
 
 Hodge V. Attorney-General, 30. 
 
 V. Churchwood, 746. 
 
 Hodges, in re, 378. 
 
 V. Blagrave, 425. 
 
 Hodgeson v. Bussey, 149. 
 Hodgkinson v. Cooper, 224. 
 Hodgson, exparte, 136. 
 Hodgson, in re, 380. 
 
 V. Hodgson, 605. 
 
 Hodle V. Healey, 734. 
 Hodsden v. Lloyd, 261.
 
 Ix 
 
 LEWIN ON THE LAW OF TllUSTS, ETC. 
 
 Hodson's settlement, 895. 
 
 Holder V. Durbin, 713. 
 
 Holdernesse v. Carmarthen, 820, «2i. 
 
 Holford V. Pbipps, 595. 
 
 Holgate V. Hawortli, 359, 879. 
 
 Holland's case, 19, 20, 30, 629, 677, 678. 
 
 V. Baker, 843, 844, 851. 
 
 V. Hughes, 351, 353, 355, 792. 
 
 Holliday v. Overton, 141. 
 HoUingsworth v. Shakeshaft, 359. 
 Hollis's case (Lord,) 729. 
 Holloway's case, 28, 287. 
 llolloway V. Headington, 94, 99. 
 
 V. Radcliffe, 819. 
 
 Holmes v. Bell, 849. 
 
 V. Coghill, 97. 
 
 V. Dring, 337, 338. 
 
 V. Moore, 338. 
 
 Holt, exparte, 772. 
 
 V. Holt,'2l7, 222. 
 
 Homan y. Hague, 857. 
 Honner v. Morton, 627. 
 Honnor's Trust, 504. 
 Honor v. Honor, 148. 
 Hood V. Clapham, 810. 
 
 V. Hall, 836. 
 
 Hooke V. Kinnear, 844. 
 Hooper v. Eyles, 204. 
 
 V. Goodwin, 183. 
 
 V. Smith, 477, 480. 
 
 Hope V. Corporation of Gloucester, 742. 
 V. Liddell, 263, 451, 765, 775. 
 
 Hopkins V. Hopkins, 8, 104, 144, 156, 
 181, 247, 619. 
 
 V. Myall, 596. 
 
 Hopkinson v. Roe, 557. 
 
 Horde v. Earl of Suffolk, 542. 
 
 Hore V. Beecher, 631. 
 
 Horn V. Horn, 435, 436, 648. 
 
 Home V. Barton, 156, 1G5, 166, 167. 
 
 Horner v. Wheelwright, 590. 
 
 Horrocks v. Ledsam, 848, 872. 
 
 Horsfall, in re, 264. 
 
 Horsley v. Chaloner, 332. 
 
 V. Fawcett, 851. 
 
 Ilorwood, exparte, 277, 278. 
 
 V. West, 168, 171. 
 
 Hoskins v. Kicholls, 857. 
 
 Houell V. Barnes, 530. 
 
 Hough's will, in re, 250. 
 
 Hougham v. Sandys, 681. 
 
 Houghton, ex parte, 199, 200, 203. 
 
 V. Koenig, 274. 
 
 House V. Way, 808. 
 
 Hovenden v. Lord Annesley, 30, 719, 
 730, 732, 734, 735, 739. 
 
 Hovey V. Blakeman, 124, 312, 314, 315. 
 
 How V. Godfrey, 545, 546, 557. 
 
 V. Kennett, 474. 
 
 V. Whitfield, 529. 
 
 Howard's Estate, in re, 884. 
 
 V. Digby, 643, 644. 
 
 V. Ducane, 462. 
 
 V. Hooker, 631. 
 
 Howard v. Jemmet, 274, 758. 
 
 V. Papera, 870, 871. 
 
 V. Rhodes, 583. 
 
 Howe V. Earl of Dartmouth, 330, 342, 
 351, 353, 355, 768, 808, 809. 
 
 V. Howe, 199, 202. 
 
 Howel V. Howel, 148, 149. 
 Howell V. Howell, 752. 
 Howse V. Chapman, 183. 
 Hoy V. Master, 170, 172. 
 Huddlestoue v. Whelpdale, 402. 
 Hudson V. Hudson, 300, 316. 
 Huet V. Fletcher, 739. 
 Hughes, ex parte, 462, 464, 465, 466, 
 468, 469, 473. 
 
 V. Evans, 180. 
 
 V. Kelly, 746. 
 
 V. Key, 851, 857. 
 
 T. Lumley, 672. 
 
 V. Stubbs, 83, 100. 
 
 V.Wells, 640, 775. 
 
 V.Wynne, 484, 491. 
 
 Hughson V. Cookson, 850. 
 Hulkes V. Barrow, 384. 
 
 V. D.a}', 670. 
 
 Hulme V. Iluime, 574. 
 
 V. Tenant, 123, 632, 634, 641. 
 
 Humberstone v. Chase, 32, 845. 
 Humble v. Bill, 435, 454, 455, 459. 
 
 Hume V. Edwards, 797. 
 
 Humphreston's case, 36, 37. 
 
 Humphry's estate, in re, 895. 
 
 Humphrey v. ]\lorse, 873. 
 
 Humpherey v. Richards, 642. 
 
 Humphreys v. HoUis, 844. 
 
 Hungate v. Hungate, 200. 
 
 Hungerford v. Earle, 476. 
 
 Hunt V. Baker, 131. 
 
 V. Bateraan, 747. 
 
 V. Coles, 665. 
 
 Huntingdon (Earl of) v. The Countess, 
 721. 
 
 Hunton v. Davies, 739. 
 
 Hurly, ex parte, 422. 
 
 Husband v. Pollard, 94. 
 
 Huskisson v. Bridge, 171. 
 
 Hussey v. Grills, 615, 617. 
 
 v. Markham, 233. 
 
 Hutcheon v. Mannington, 816. 
 
 Hutchcson v. Hammond, 182, 195, 196, 
 513, 517. 
 
 Hutchins v. Lee, 61, 177, 178. 
 
 Hutchinson v. Hutchinson, 526, 704. 
 
 V. Massareene, 428. 
 
 V. Morritt, 318. 
 
 V. Stephens, 838, 888. 
 
 Townsend, 850. 
 V. Sandj's, 605. 
 Simpson, 754. 
 
 Hylton V. Hylton, 777. 
 
 Hyne v. Redington, 341, 342. 
 Hynshaw v. Morpeth Corporation, 198. 
 
 Tbbetson v. Ibbetson, 161.
 
 TABLE OF CASES. 
 
 Ixi 
 
 Inchiquin v. French, 77. 
 
 Incledon v. Northcote, 629, 631. 
 
 IncorporatedSoc'y V.Richards, 749, 786. 
 
 Inge, ex parte, 494, 495. 
 
 Inglefield v. Coghlan, 122. 
 
 Ingliss V. Grant, 474, 479. 
 
 Ingram, in re, 381. 
 
 Inkersole, ex parte, 715. 
 
 Inwood V. Twyne, 513, 823, 829. 
 
 Irwin V. Rogers, 878. 
 
 Isaac V. Defriez, 706. 
 
 Isaacs V. Weatherstone, 869. 
 
 Isald V. Fitzgerald, 224. 
 
 Ithell V. Beane, 435. 
 
 Jackson's case, 725. 
 Jackson v. Garnett, 476. 
 
 V. Haworth, 633. 
 
 V. Hobhouse, 123. 
 
 V. Hurlock, 190, 194. 
 
 V. Jackson, 202, 351. 
 
 V. Kelly, 197. 
 
 V. Milfield, 839. 
 
 V.Welsh, 218, 224. 
 
 V. Woolley, 524. 
 
 Jacob V. Lucas, 301, 326, 768. 
 
 V. Shepperd, 480. 
 
 Jacobs V. Amyatt, 122. 
 Jacomb v. Harwood, 316. 
 James, ex parte, AQO, 461, 462, 464, 465, 
 466, 467, 468, 469, 470, 560. 
 
 V. Dean, 218, 219, 220, 222, 224. 
 
 V. Frearson, 237, 241, 243, 244. 
 
 Janaway, in re, 832. 
 Jarman v. Wooloton, 277. 
 Jebb V. Abbott, 435. 
 Jeffereys v. Small, 202. 
 Jefferies v. Harrison, 873. 
 Jeiferys v. Jeiferys, 94, 99. 
 Jenkins v. Hiles, 441. 
 
 V. Jenkins, 250. 
 
 v. Milford, 588, 591. 
 
 V. Perry, 489, 490. 
 
 Jenkyn v. Vaughan, 93. 
 
 Jenner v. Tracy, 734. 
 
 Jennings v. Selleck, 177, 216. 
 
 Jerdon v. Foster, 832. 
 
 Jervoise, in re, 377. 
 
 V. The Duke of Northumberland, 
 
 141, 142, 144, 145, 154, 158. 
 Jesse V. Bennett, 854. 
 Jessopp V. Watson, 183, 184. 
 Jesus College v. Bloome, 753. 
 Jevon v. Bush, 20, 521. 
 Jewson v. Moulson, 629. 
 Johnes v. Lockhart, 122. 
 Johnson, ex parte, 343, 835. 
 
 V. Arnold, 806, 807. 
 
 V. Ball, 68. 
 
 V. Freeth, 128. 
 
 V. Holdsworth, 52, 672. 
 
 V. Johnson, 184, 808. 
 
 V. Kennett, 434, 435, 436, 437, 439, 
 
 444. 
 
 January, 1858. — 5 
 
 Johnson v. Legard, 93. 
 
 V. Smith, 731. 
 
 V. Telford, 558. 
 
 Johnston v. Lloyd, 351. 
 
 V. Newton, 336. 
 
 V. Rowlands, 172. 
 
 Johnstone v. Baber, 419. 
 
 V. Lumb, 642. 
 
 Joliffe, exparte, 372. 
 
 JoUand ( v.) 319. 
 
 Jolly v. Norton, 486. 
 Jones, in re, 834, 883. 
 
 V. Ashurst, 29. 
 
 V. Croucher, 93. 
 
 V. Del Rio, 852. 
 
 V. Foxall, 357, 362, 364. 
 
 V. Gibbons, 631. 
 
 V. Goodchild, 324. 
 
 V. Habbs, 77. 
 
 V. Harris, 639, 641. 
 
 V. How, 853. 
 
 V. James, 854. 
 
 V. Jones, 387, 388, 391, 399, 403, 
 
 607, 845. 
 
 V. Kearney, 218, 223, 775. 
 
 V. Langton, 147. 
 
 V. Lewis, 296, 332, 345, 595, 875. 
 
 V. Maggs, 118, 119. 
 
 V. Matthie, 423. 
 
 V. Mitchell, 182, 183, 195, 196, 197. 
 
 V. Morgan, 142, 256. 
 
 V. Morley, 95. 
 
 V. Powell, 524. 
 
 V. Powles, 725. 
 
 V. Price, 435, 528. 
 
 V. Reasbie, 680. 
 
 V. Salter, 124, 130. 
 
 V. Lord Say and Seal, 247, 248, 
 
 254. 
 
 V. Scott, 484, 485. 
 
 V. Torin, 700. 
 
 V. Turberville, 139, 277, 736. 
 
 v. Williams, 667. 
 
 Joseph's Will, in re, 377. 
 
 Josling V. Karr, 849. 
 
 Josselyn v. Josselyn, 597. 
 
 Jov V. Campbell, 139, 277, 293, 305, 
 
 311, 313, 725, 758, 773. 
 Joyce V. Joyce, 713. 
 Juxon V. Brian, 428. 
 
 Kempf V. Jones, 858. 
 
 Kator V. Pembroke, 725. 
 
 Kaye v. Powel, 585. 
 
 Keane v. Robarts, 226, 292, 428, 454, 
 
 455,456, 458, 459, 561. 
 Kearnan v. Fitzsimon, 238. 
 Kearsley v. Woodcock, 135. 
 Keating v. Keating, 416. 
 Keble v. Thompson, 337, 771, 773. 
 Keech v. Sandford, 220, 223, 224. 
 Keeling v. Child, 723. 
 Kekewich v. Manning, 88, 91, 94. 
 V. Marker, 538.
 
 LEWIN ON THE LAW OP TRUSTS, ETC. 
 
 Isii 
 
 Kellaway v. Johnson, 353, 766, TTo. 
 
 853. 
 Kellettv. Kellett, 181. 
 Kemp V. Kemp, 10. 
 Kempton v. Packman, 218, 222. 
 Kendall v. Granger, 182. 
 
 V. Micfield, 17. 
 
 Kenge v. Delavall, 640. 
 Kennedy v. Daly, 174, 280, 325, 721, 
 725, 726. 
 
 V. Turnley, 544, 582. 
 
 Kennell v. Abbott, 193, 197. 
 Kenney t. Browne, 467. 
 Kenrick v. Lord Beauclerk, 247, 248. 
 Kensey v. Langham, 269. 
 Kensington Hastings' case, 198. 
 
 V. Dollond, 121, 122, 123. 
 
 Kent, in re, 835. 
 
 V. Jackson, 737, 775. 
 
 Kentish v. Newman, 153. 
 
 Keogh V. Cathcart, 633. 
 
 Keon V. Magawly, 844. 
 
 Kettle V. Hammond, 477. 
 
 Kettleby v. Atwood, 798. 
 
 Kidnev v. Koussmaker, 196, 471,488, 
 
 738' 752. 
 Kilbee v. Sneyd, 290, 292, 294, 314, 316, 
 
 336, 461, 463, 465, 777. 
 Kildare (Earl of) v. Eustace, 10, 30, 
 
 678. 
 Killett V. Killett, 179. 
 Killick, ex parte, 121. 
 
 V. Flexney, 217, 220, 460, 465. 
 
 Kilpin V. Kilpin, 56, 61. 
 Kilvington v. Gray, 813. 
 Kincaid, in re, 370. 
 Kinder v. Miller, 204, 206. 
 Kinderley v. Jervis, 285. 
 King V. AylofiF, 28, 287. 
 
 , exparte, 771, 773. 
 
 T. Ballett, 689. 
 
 V. Boston, 205. 
 
 V. Archbishop of Canterbury, 543. 
 
 V. Denison, 39, 179, 180. 18'l. 
 
 V. Leach, 836, 837, 839. 
 
 V. Marissal, 649. 
 
 V. Mildmav, 260. 
 
 V. Mullins", 374. 
 
 V. Turner, 834. 
 
 King's Mortgage, in re, 264. 
 
 King (The) v. St. Catharine's Hall, 495. 
 
 V. Coggan, 324. 
 
 V. Daccombe, 675, 677. 
 
 V. De la Motte, 649, 650, 674. 
 
 (The) V. Egginton, 758. 
 
 V. Holland, 11, 12, 43, 132. 
 
 V. Jenkins, 19. 
 
 V. Lambe, 673. 
 
 V. Portington, 62, 71. 
 
 V. Smith, 673. 
 
 V. Trussel, 136. 
 
 V. Wilson, 324. 
 
 V. Winstanley, 424. 
 
 Kingdome v. Bridges, 210, 216. 
 
 Kingsman t. Kingsman, 70, 74. 
 Kingston v. Lorton, 168, 731. 
 
 (Earl of) V. Lady Pierepoint, 311. 
 
 Kirbv V. Mash, 718, 875. 
 Kiricke v. Bransbey, 179. 
 Kirk V. Clark, 844, 848. 
 
 V. Paulin, 122. 
 
 V. Webb, 204, 206. 
 
 Kirkbv v. Dillon, 648, 650. 
 
 Kirkm'an t. Miles, 800, 823. 
 
 Kirkpatrick's Trust, 348. 
 
 Kirwan v. Daniel, 476, 482, 483. 
 
 Kitchen v. Calvert, 136. 
 
 Knatchbull t. Fearnhead, 375, 765, 768. 
 
 Knight V. Boughton, 169. 
 
 v. Knight, 130, 168, 169, 170, 171, 
 
 172, "l73, 631. 
 
 v. Majoribanks, 460, 465. 
 
 V. Martin, 367. 
 
 V. Pechej-, 204. 
 
 V. Earl of Plymouth, 343, 351. 
 
 V. Selby. 141. 
 
 Knights V. Atkyns, 797. 
 
 Knott V. Cotte, 102, 172, 364, 877. 
 
 Knowles v. Spence, 731. 
 
 Knox V. Kelly, 746. 
 
 Knye t. Moore, 846, 848. 
 
 Lacev, exparte, 318, 460, 461,462,463, 
 
 464, 465, 466, 468, 469, 473. 
 Lachton v. Adams, 372. 
 Lacon v. Lacon, 734. 
 Lad V. London City, 198. 
 Ladbroke, exparte, 422. 
 Ladbrook v. Bleaden, 234. 
 Lade v. Halford, 590. 
 
 V. Lade, 200. 
 
 Laffan. in ie, 714. 
 Lake v. Craddock, 202. 
 
 V. De Lambert, 34, 711. 
 
 V. Gibson, 201, 202. 
 
 Lamas v. Bavly, 205. 
 
 Lamplugh v' Lamplugh, 39, 207, 209, 
 
 210, 212, 215. 
 Lanauze v. Malone, 357. 
 Lancashire v. Lancashire, 530, 581. 
 Lancy v. Fairechild, 798. 
 Landen v. Green. 873. 
 Lander v. Weston, 349, 357, 451. 
 Lane v. Debenham, 301, 419, 530, 536, 
 
 538. 
 T. Dighton, 204, 206, 756, 759, 762, 
 
 763. 
 
 V. Wroth, 291. 
 
 Langford v. Auger, 263. 
 
 V. Gascoyne, 290, 293, 311, 774. 
 
 V. Mahony, 561. 
 
 Langham v. Sandford, 59, 69, 182. 
 Langhoru v. Langhorn, 895. 
 Langley v. Fisher, 325, 721. 
 
 V.' Hawk, 870. 
 
 V. Sneyd, 680. 
 
 Langstafte v. Fenwick, 546. 
 Langston v. Ollivant, 339.
 
 TABLE OF CASES. 
 
 Ixiii 
 
 Langton v. Astrey, 724, 726, 
 
 V. Horton, 279. 
 
 V. Tracy, 482. 
 
 Landsdowne v. Landsdowne, 753. 
 L'Apostre v. Le Plaistrier, 274, 275, 
 
 278. 
 La Terriere v. Bulmer, 814. 
 La Touche v. Dunsany, 845. 
 Lavender v. Stanton, 432. 
 Law, in re, 568, 837, 839. 
 
 V. Bagwell, 748. 
 
 V. Skinner, 476, 477. 
 
 Lawes v. Bennett, 808. 
 Lawless v. Shaw, 173. 
 Lawrence v. Beverley, 796. 
 
 V. Bowie, 767. 
 
 V. Maggs, 222, 385, 386, 39C. 
 
 Lea V. Grunby, 643. 
 Leach v. Dean, 93. 
 
 V. Leach, 168. 
 
 Leahy v. Dancer, 660, 661. 
 Lear v. Leggett, 135. 
 Lechmere v. Earl of Carlisle, 719. 792, 
 793, 798,801, 807, 825. 
 
 V. Lavie, 168, 169, 171. 
 
 V. Lechmere, 797, 798, 799. 802, 
 
 805. 
 Ledwich, in re, 710. 
 Lee V. Alston, 753. 
 
 V. Brown, 513, 517, 519. 
 
 V. Delane, 368. 
 
 V. Howlett, 608. 
 
 V. Lee, 361. 
 
 V. Prieaux, 122. 
 
 V. Young, 538, 542, 543, 712. 
 
 Leech v. Leech, 97. 
 
 Leeds (Duke of) v. Amherst, 737, 743. 
 
 V. Munday, 263. 
 
 Lees V. Sanderson, 314. 
 
 Lefroy V. Flood, 172, 173. 
 
 Legard v. Hodges, 174. 
 
 Legate v. Sewell, 154, 603. 
 
 Legg V. Goldwire, 148. 
 
 Leigh V. Barry, 302, 305, 310, 476. 
 
 Leister v. Foxcroft, 70. 
 
 Leith V. Irvine, 547, 556. 
 
 Lemaitre v. Bannister, 169, 170. 
 
 Leman v. Whitley, 178. 
 
 Lenaghan v. Smith, 850. 
 
 Lench V. Lench, 204, 205, 206, 756, 762, 
 
 774. 
 Le Neve v. Norris, 
 Lennard v. Curzon, 845. 
 Leonard v. Baker, 474, 475. 
 
 V. Lord Sussex, 154. 
 
 Lesley's case, 225. 
 Leslie V. Baillie, 367. 
 
 V. Birnie, 498. 
 
 V. Duke of Devonshire, 182, 188, 
 
 189. 
 
 V. Guthrie, 276. 
 
 Lethieullier v. Tracy, 251, 255, 678. 
 Lever v. Andrews, 200. 
 Levet V. Needhain. 177. 179. 
 
 Levett's Trust, in re, 378. 
 
 Lewellin v. Cobbold, 865. 
 
 V. Mackworth, 719, 729. 
 
 Lewes v. Lewes, 135. 
 
 , in re, 883. 
 
 Lewin v. Okeley, 489. 
 
 Lewis, ez parte, 423. 
 
 (Otto,) ex parte, 833. 
 
 V. Hillman, 378. 
 
 V. Lane, 46, 616. 
 
 V. Lewis, 56. 
 
 v. Madocks, 174, 759, 762, 763. 
 
 V. Lord Zouche, 651. 
 
 Litchfield v. Baker, 810. 
 
 Liley v. Hay, 169, 698. 
 
 Lillia V. Airey, 633. 
 
 Limbrey v. Gurr, 132. 
 
 Limbroso v. Francia, 395. 
 
 Linch V. Gappy, 360. 
 
 Lincoln Primitive Methodist Chapel, 
 in re, 718. 
 
 (Countess of) v. Duke of New- 
 castle, 146, 152, 159, 161, 163. 
 
 V. Allen, 359. 
 
 V. Windsor, 320, 550. 
 
 V. Wright, 306, 316, 768, 771, 775. 
 
 Lindon v. Sharp, 477. 
 
 Lindow v. Fleetwood, 164, 166. 
 
 Lindsell v. Thacker, 121, 264. 
 
 Lingard v. Bromley, 768, 846. 
 
 Lingen v. Sowray, 796, 818, 824. 
 
 Linton v. Bartlett, 480. 
 
 Lismore (Lord,) in re, 795. 
 
 Lister's Hospital, in re, 378, 785. 
 
 Lister v. Lister, 461, 462, 468, 471, 738. 
 
 Little, ex parte, 427, 591. 
 
 Littlehales v. Gascoyne, 359, 875. 
 
 Livesey v. Harding, 538, 542. 
 
 V. Livesey, 373. 
 
 Lloyd v. Baldwin, 435, 436. 
 
 V. Loaring, 851. 
 
 V. Smith, 853. 
 
 V. Spillet, 15, 57, 61, 177, 178, 179, 
 
 180, 181, 229, 878. 
 
 V. Wentworth, 180. 
 
 V. Williams, 369, 488, 489. 
 
 Lloyde v. Gregory, 36, 37. 
 
 Loader v. Clarke, 776. 
 
 Lock V. Lock, 384, 395, 402. 
 
 Locke V. Lomas, 434, 523. 
 
 Lockey v. Lockey, 730, 754, 755. 
 
 Lockwood V. Abdy, 226, 561. 
 
 Lockyer V. Savage, 135. 
 
 Locton V. Locton, 173. 
 
 Loddington v. Kime, 484. 
 
 Lodge V. Lyseley, 650, 655, 656. 
 
 Lofts, ex parte, 479. 
 
 Lomax v. Ripley, 71, 73. 
 
 London Bridge Act, in re, 427. 
 
 London, Brighton, &c.. Railway Com- 
 pany, in re, 718, 785. 
 
 London Gas Light Company v. Spottis- 
 woode, 768, 849, 854. 
 
 London (City of) v. Garway, 182, 183.
 
 Ixiv 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 London v. Richmond, 851. 
 Long.v. Yonge, 852. 
 Longdon v. Simson, 114. 
 Longmore v. Broom, 359, 703. 
 Longuet v. Hockley, 273. 
 Lonsdale (Earl of) v. Beckett, 577. 
 Lord V. Bunn, 135, 450, 712. 
 
 V. Godfrey, 354, 811. 
 
 Lorimer, in re, 380, 381. 
 Louch, ez parte, 478, 479. 
 Love V. Bade, 751, 786. 
 Love V. Gaze, 59. 
 Lovegrove, exparte, 557. 
 
 V. Cooper, 688. 
 
 Loveridge v. Cooper, 605, 607. 
 Lovett's Exhibition, inre, 713. 
 Low, exparte, 479. 
 
 V. Carter, 765. 
 
 Lowe V. Morgan, 842. 
 
 Lowes V. Hackward, 196. 
 
 Lowry v. Fulton, 232, 235, 241, 242, 
 
 243, 289. 
 Lowson V. Copeland, 328, 365, 878. 
 Lowther v. Carlton, 726. 
 Loyd V. Griffith, 427. 
 
 V. Read, 200, 211, 212, 214, 216. 
 
 Lucas, exparte, 380. 
 
 Luckin v. Rushworth, 217, 224. 
 
 Ludlow, ex parte, 828. 
 
 (Corporation of) v. Greenhouse, 
 
 723, 777, 779, 780, 781, 782, 783. 
 Lumb V. Milnes, 122. 
 Lunn's Charity, in re, 838. 
 Lupton V. White, 337. 
 Lushington, ex parte, 505. 
 Lush's Estate, in re, 885. 
 Lydiatt v. Foach, 503, 507. 
 Lyne, exparte, 299. 
 
 V. , 122. 
 
 Lyon V. Baker, 320, 550. 
 Lyse V. Kingdon, 343, 767, 875. 
 Lyster v. Burroughs, 174. 
 V. Dolland, 202, 665. 
 
 Maberly V. Turton, 517, 697. 
 M'Carthy v. Daunt, 747. 
 
 V. Decaix, 778. 
 
 Macartney v. Blackwood, 466, 752. 
 Macauley v. Philips, 629. 
 M'Donald v. Bryce, 116, 118. 
 
 V. Hanson, 421. 
 
 M'Donel v. Hesilrige, 93. 
 Macdonald v. Walker, 265. 
 Macdonnell v. Harding, 333, 775. 
 Mace V. Cadell, 278. 
 Macey v. Shurmer, 168. 
 Mackenzie v. Makenzie, 476, 891, 905 
 Mackie v. Mackie, 815. 
 M'Key, exparte, 518. 
 Mackinnon v. Stewart, 476, 481, 666 
 Mackreth v. Symmons, 725. 
 M'Cleland V. Shaw, 183, 196. 
 M'Gachen v. Dew, 326, 771 849 
 M'Hardy v. Hitchcock,' 864,' 866* 
 
 Macleod v. Annesley, 345, 349. 
 M'Leod V. Drummond, 454, 455, 456, 
 
 457, 458, 459. 
 Macnab v. Whitbread, 168, 170. 
 Macnamara v. Jones, 556. 
 Macpherson v. Macpherson, 814. 
 Maddison v. Andrew, 543. 
 Madoc V. Jackson, 700. 
 Madox V. Jackson, 848. 
 Madge v. Riley, 839. 
 Magawley's Trust, in re, 93. 
 Maggeridge v. Grey, 710. 
 Maguire v. Scully, 147, 149. 
 Mahon v. Savage, 542, 699, 706. 
 
 (Lord) v. Earl Stanhope, 418. 
 
 Maire, exparte, 835. 
 Maitland v. Bateman, 329. 
 Major V. Lansley, 645, 694. 
 Malcolm v. O'Callaghan, 557. 
 Malim v. Barker, 168. 
 
 V. Keighley, 168, 169, 171. 
 
 Mallabar v. Mal'labar, 181, 196, 197. 
 Malone v. Geraghty, 718, 848. 
 
 V. O'Conner, 168, 170. 
 
 Malzy V. Edge, 240, 244. 
 
 Manchester (Mayor of) v. Manchester 
 
 (Overseers of,) 272, 
 Manchester New College, inre, 781, 782, 
 
 783. 
 Mangles v. Dixon, 729. 
 Manifold, inre, 837. 
 Manners v. Furze, 869. 
 Manning v. Thesiger, 849, 851. 
 Manning's Trust, 895. 
 Mansell v. Mansell, 405, 406, 724, 725, 
 764. 
 
 V. Vanghan, 299, 528, 536. 
 
 Mansfield (Earl of) v. Ogle, 749. 
 
 V. Shaw, 870. 
 
 Mant V. Leith, 345. 
 Maplett V. Pocock, 873. 
 Mapp V. Elcock, 179. 
 Mara v. Manning, 640, 777. 
 March v. Russell, 765, 777. 
 Margetts v. Barringer, 122. 
 Marker v. Marker, 778. 
 Markwell's Legacy, in re, 378, 785. 
 Marlborough (Duke of) v. Lord Godol- 
 phin, 701, 703. 
 
 V. St. John, 514. 
 
 Marlow v. Pitfield, 37, 485. 
 
 V. Smith, 262, 279. 
 
 Marriot v. Marriot, 70. 
 
 Marriott v. Kinnersley, 306, 764. 
 
 V. Turner, 183. 
 
 Marryat v. Marryat, 865. 
 
 V. Townley, 144, 149, 152, 153, 
 
 156, 164. 
 
 V. The Bank, 33. 
 
 Marsh ( v.) 823. 
 
 , ex parte, 277. 
 
 V. Hunter, 341, 356. 
 
 Marshall, ex parte, 263, 715. 
 V. Blew, 594.
 
 TABLE OF CASES. 
 
 Isv 
 
 Marshall v. Bousfield, 153, 154. 
 
 Y. Bremner, 810. 
 
 V. Holloway, 111, 191, 549, 554. 
 
 V. Sladden, 418. 
 
 Martin, ex parte, 277. 
 
 V. Hooper, 487. 
 
 V. Margham, 136. 
 
 V. Martin, 51, 53, 153, 318. 
 
 V. Persse, 235, 874. 
 
 V. Sedgwick, 613. 
 
 Marwood v. Turner, 604. 
 Mary England, m re, 517. 
 Masham v. Harding, 489. 
 Mason v. Bogg, 485. 
 
 V. Day, 831. 
 
 V. Limbury, 167. 
 
 V. Mason, 
 
 Massam v. Harding, 690. 
 Masselin's Will, in re, 378. 
 Massey, ex parte, 277. 
 
 v. Banner, 296, 332, 333. 
 
 T. Parker, 121, 122, 124, 
 
 Master v. De Croismar, 43, 153. 
 
 T. Fuller, 635. 
 
 Mather v. Norton, 439. 
 
 V. Priestman, 422. 
 
 V. Thomas, 265. 
 
 Mathison v. Clarke, 319, 320, 546. 
 Matson y. Swift, 807. 
 Matthew y. Hanbury, 138. 
 Matthews y. Bagshaw, 547. 
 Matthew y. Brise, 333, 342, 352, 753. 
 
 Y. Gabb, 613, 614. 
 
 Matthie y. Edwards, 414, 423. 
 Maugham y. Mason, 183, 195, 196. 
 Maundrell y. Maundrell, 191. 
 MaYor Y. Davenport, 238. 
 Maxwell y. Ashe, 223. 
 
 Y. Wettenhall, 489, 490. 
 
 May Y. Selby, 851. 
 
 V. Taylor, 249, 269. 
 
 Maynard's Settlement, in re, 890. 
 Maynwaring y. Maynwaring, 822, 823. 
 Mead y. Lord Orrery, 454, 455, 456, 459, 
 
 460, 725. 
 Meader v. M'Cready, 362. 
 Meaghan, in re, 136. 
 Medley v. Horton, 130. 
 
 Y. Martin, 279. 
 
 Medlicott y. O'Donel, 732, 734. 
 
 Meek y. Kettlewell, 81, 83, 84, 88, 91, 
 
 92, 93, 94. 
 Meggison y. Moore, 168, 172. 
 Meggott Y. Meggott, 755. 
 Megod's case, 8, 20. 
 Mehrtens y. Andrews, 353, ^43. 
 Meinertzhagen y. Davis, 40, 576, 577. 
 Melland y. Gray, 363. 
 Melling v. Leak, 586, 590, 748. 
 Mennard y. Welford, 574. 
 McHardy y. Hitchcock, 864, 866. 
 Meredith y. Heneage, 167, 168, 169, 170, 
 
 171, 172. 
 Merest y. James. 16. 
 
 Merry, ex parte, 836. 
 Mertins Y. Jolliffe, 726. 
 Mestaer y. Gillespie, 277. 
 Metcalf Y. Scholey, 665. 
 Metham y. Devon, 67, 77. 
 Meure v. Meure, 153, 156. 
 Meux V. Bell, 608, 610, 611, 612. 
 
 Y. Howell, 474, 475. 
 
 V. Maltby, 851. 
 
 Meyer v. Simonsen, 816. 
 
 Y. Montriou, 867. 
 
 Meyrick's Trust, in re, 888. 
 McFadden v. Jenkyns, 61, 91. 
 Middleton v. Dodswell, 522, 870, 871. 
 
 v. Losh, 120. 
 
 Y. Reay, 544, 582. 
 
 V. Spicer, 42, 198, 318, 324. 
 
 Milbank v. Collier, 851. 
 Miles Y. Duruford, 138, 454, 456. 
 Millfield, in re, 834, 837, 839. 
 Millard's case, 725. 
 
 Y. Eyre, 711. 
 
 Miller's case, 19. 
 
 v. Huddlestone, 853. 
 
 v. Knight, 839. 
 
 V. Priddon, 578, 581. 
 
 Y. Race, 274, 275, 757, 758. 
 
 Milles v. Milles, 387, 392. 
 Milligan v. Mitchell, 497, 723. 
 Mills Y. Mills, 341, 353,811. 
 
 v. Osborne, 338. 
 
 Milnes v. Cowley, 763. 
 Milsington v. Mulgrave, 386. 
 Milsintown v. Earl of Portmore, 387. 
 Miltown v. Trimbleston, 901. 
 Minchin v. Nance, 174. 
 Mitchell Y. Nixon, 572. 
 Mitchelson v. Piper, 524. 
 Mitford, ex parte, 771. 
 
 Y. Mitford, 276, 629, 631. 
 
 Mogg Y. Baker, 475. 
 
 V. Hodges, 183, 189. 
 
 Moggridge v. Thackwell, 693. 
 Mohun Y. Mohun, 872, 874. 
 Molony, in re, 838. 
 
 Y. "Kennedy, 642. 
 
 Y. L'Estrange, 472. 
 
 Molton v. Camroux, 27. 
 
 Money, in re, 378. 
 
 Montefiore, in re, 772. 
 
 Montford (Lord) v. Lord Cadogan, 238, 
 
 241, 385, 387, 392, 402, 766, 768, 769, 
 
 770, 774. 
 Montgomerie v. Bath (Marquis of) 842. 
 Montgomery v. Johnson, 235, 243. 
 Montmorency v. Devereux, 472. 
 Monypenny v. Bristow, 751, 753, 754, 
 
 756. 
 Moody, ex parte, 772. 
 
 Y. in re, 834. 
 
 v. Matthews, 223. 
 
 V. Walter, 405, 408, 409, 910. 
 
 Moon v. Blake, 847. 
 
 Moons v. De Bernales, 361, 766, 771, 772.
 
 Ixvi 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 Moor V. Black, Too. 
 Moorcroft v. Dowding, 63, 290. 
 Moore, ex parte, 277. 
 
 V. Cleghorn, 141. 
 
 V. Frowd, 320, 549, 553, 874. 
 
 V. Hussey, 34. 
 
 V. Moore, 130, 643. 
 
 V. Scarborough (Earl of), 643. 
 
 V. Vinten, 837, 847. 
 
 Morden College case, 502. 
 Morgan, ex parte, 263, 465, 737. 
 Morgan v. Horseman, 480. 
 
 V. Morgan, 116, 119, 623, 624, 753. 
 
 V. Sherrard, 686. 
 
 Moriarty v. Martin, 167. 
 Morice v. Bishop of Durham, 169, 181. 
 Morison v. Morison, 319, 553. 
 Morley's Trust, in re, 263, 264. 
 Morley v. Bird, 201. 
 
 V. Lord Hawke, 774. 
 
 V. Morley, 332. 
 
 Mornington, ex parte, 894. 
 Morony v. Vincent, 873. 
 Morret v. Paske, 318. 
 Morrice v. Bank of England, 689. 
 Morrill v. Lawson, 847, 849. 
 Morris v. Preston, 573. 
 
 V. Lavie, 771. 
 
 Morse v. Faulkner, 52. 
 V. Langham, 484. 
 
 V. Eoyal, 461. 463, 464, 470, 471, 
 
 472, 473, 734. 
 
 Mortimer v. Davies, 200. 
 
 V. Ireland, 266. 
 
 v. Watts, 386, 543. 
 
 Mortlock V. Buller, 415, 418. 
 Morton v. Tewart, 63, 64. 
 Moseley v. Moseley, 696, 707. 
 Moses V. Levi, 314, 315. 
 
 Mosley v. Ward, 357, 361, 875, 878, 879. 
 Mott V. Buxton, 247, 269, 
 Mount, in re, 835. 
 Mousley v. Carr, 362, 363, 876. 
 Moyle V. Moyle, 232, 317, 336, 351. 
 Moyse v. Gyles, 201. 
 M'Queen v. Farquhar, 726. 
 Muckleston v. Brown, 67, 68, 71, 72, 73, 
 
 138, 178, 182, 773. 
 Mucklow V. Fuller, 240, 318. 
 Mulcahy v. Kennedy, 734. 
 Mulvany v. Dillon, 217, 220, 224, 461, 
 
 465. 
 Mumma v. Mumma, 39, 209, 212. 
 Munch V. Cockerell, 293, 362, 766, 778, 
 
 845, 848. 
 Mnndy v. Mundy, 755. 
 Murless v. Franklin, 200, 207, 209, 214, 
 
 215. 
 Murphy, in re, 136. 
 Murray v. Barlee, 634, 635, 636, 641. 
 
 V. Palmer, 472. 
 
 V. Pinkett, 756. 
 
 Murrell v. Cox, 310, 315. 
 
 Myler v. Fitzpatrick, 226, 561, 562. 
 
 Nab V. Nab, 61, 63, 64, 71. 
 Nail V. Punter, 774. 
 Nairn v. Majoribanks, 514. 
 Nantes v. Corrock, 629, 641, 642. 
 Napier v. Napier, 369. 
 Nash V. Coates, 253, 254. 
 
 v. Dillon, 873. 
 
 V. Preston, 9, 260. 
 
 v. Smith, 179. 
 
 Naylor v. Arnitt, 522. 
 
 V. Winch, 460, 465. 
 
 Neale v. Davies, 325. 
 
 Neate v. Duke of Marlborough, 650, 652, 
 
 658, 662, 663. 
 Needham, in re, 233, 237. 
 Needler's case, 774. 
 
 V. Bishop of Winchester, 34. 
 
 Neeves v. Burrage, 524. 
 
 Nelson v. Bridport, 54, 55. 
 
 Nesbitt V. Tredennick, 217, 218, 222. 
 
 Nettleton v. Stephenson, 118. 
 
 Nevarre v. Button, 729. 
 
 Nevil V. Saunders, 247. 
 
 New V. Jones, 320, 546, 549, 550, 557. 
 
 Newburgh v. Bickerstaffe, 753, 755. 
 
 V. Newburgh, 71, 75. 
 
 Newcastle (Duke of) v. Countess of Lin- 
 coln, 146, 150. 
 Newcomen v. Hassard, 639, 645, 646. 
 Newlands v. Paynter, 44, 121, 125, 131. 
 Newman v. Jones, 774. 
 
 v. Warner, 533, 712. 
 
 Newport's case, 828. 
 
 Newton v. Askew, 92, 94, 599. 
 
 V. Bennet, 359, 360, 488, 489, 876, 
 
 877. 
 
 V. Chantler, 477, 480. 
 
 v. Earl of Egmont, 852. 
 
 v. Pelham, 74. 
 
 V. Preston, 204. 
 
 Charity, in re, 782. 
 
 Nicholls, in re, 713. 
 
 v. Crisp, 183. 
 
 Nicholson v. Falkiner, 857, 858. 
 
 V. Tutin, 483. 
 
 Nickolson v. Knowles, 226. 
 
 Nicloson V. Wordsworth, 233, 236, 237. 
 
 Niel V. Morley, 27. 
 
 Nightingale's Charity, 718. 
 
 V. Earl Ferrers, 37. 
 
 V. Lawson, 383, 384, 396. 
 
 Noad V. Backhouse, 870. 
 
 Noble V. Fry, 626. 
 
 V. Meymott, 233, 567, 572, 851. 
 
 Noel V. Lord Henley, 190, 813. 
 
 V. Jevon, 11, 260, 279. 
 
 Nokes V. Seppings, 867. 
 
 Norbury v. Calbeck, 878. 
 
 v. Norbury, 343. 
 
 NorclifiF V. Worsley, 603. 
 
 Norden v. James, 479, 497. 
 
 Norfolk's case (Duke of), 104, 131, 132, 
 681, 751. 
 
 Norfolk (Duke of) v. Browne, 177.
 
 TABLE OF CASES. 
 
 Ixvii 
 
 Norris v. Le Neve, 224, 225. 
 
 V. Norris, 349, 873, 874. 
 
 V. Wright, 340, 345,350, 356, 357, 
 
 853, 858. 
 North V. Champernoon, G02, 603. 
 
 V. Crorapton, 181. 
 
 V. Williams, 602, 603, 604. 
 
 Norton v. Frecker, 754. 
 
 V. Pritchard, 580. 
 
 V. Turvill, 37, 633, 642, 729. 
 
 Norway v. Norway, 234, 874. 
 
 Nowlan v. Nelligan, 168. 
 
 Nugent V. GiflFord, 454, 455, 456, 457, 
 
 459. 
 Nunn V. Wilsmore, 474, 475, 477, 487. 
 Nurton v. Nurton, 454, 455. 
 
 Oakes v. Strachey, 808, 811. 
 Oakley v. Young, 252, 
 Gates V. Cooke, 250. 
 O'Brien v. O'Brien, 356, 357. 
 O'Callaghan v. Cooper, 876. 
 O'Connor v. Spaight, 753. 
 Odell, in re, 568. 
 O'Dowda V. O'Dowda, 659. 
 O'Fallon v. Dillon, 658, 659. 
 O'Ferrall v. O'Ferrall, 384. 
 Oglander v. Oglander, 713. 
 Ogle V. Cook, 183. 
 O'Gorman v. Comyn, 658, 659, 660. 
 O'Hara v. O'Neil, 63. 
 O'Herlihy v. Hedges, 318. 
 Oke V. Heath, 195, 197. 
 O'Keefe v. Calthorpe, 712. 
 O'Kelly V. Glenny, 734, 739. 
 Oldham v. Hughes, 798, 816, 817. 
 
 V. Litchford, 71. 
 
 Oliver v. Court, 317, 415, 421, 424, 467, 
 
 470, 471. 
 Omerod v. Hardman, 428. 
 Ommaney, ex parte, 835, 901. 
 O'Neill V. Lucas, 118. 
 Onslow's (Speaker) case, 820. 
 Onslow V. Lord Londesborough, 425. 
 
 V. Wallis, 322, 323, 596. 
 
 O'Reilly v. Alderson, 574, 710. 
 
 Ord V. Noel, 414, 415, 422, 423, 424. 
 
 V. White, 729. 
 
 Orgill, ex parte, 715. 
 
 Ormonde (Marquis of) v. Kynersley, 225. 
 
 Ormsby, in re, 545, 546, 557. 
 
 Orr V. Newton, 241, 330. 
 
 Orrett v. Corser, 773. 
 
 Orrok v. Binney, 458. 
 
 Osborne ( v.) 373, 583. 
 
 V. Fallows, 842. 
 
 V. Foreman, 853. 
 
 Osmond v. Fitzroy, 777. 
 Oswald V. Thompson, 478. 
 Ottley V. Browne, 139, 773. 
 
 V. Gilby, 599, 873. 
 
 Otway V. Hudson, 795. 
 
 V. Wing, 633. 
 
 Ousley V. Anstruther, 356. 
 
 Overton v. Bannister, 39, 373. 
 Owen V. Aprice, 755. 
 
 V. Body, 476. 
 
 V. Foulkes, 461. 
 
 V. Williams, 217, 218, 220, 224. 
 
 Owens V. Dickenson, 635, 638, 642. 
 Oxenden v. Lord Compton, 798, 825, 
 
 826, 827, 828, 829, 830. 
 Oxford (University of) v. Richardson, 
 
 753. 
 Oxley, ex parte, 135. 
 
 Packer v. Wyndham, 629, 631. 
 Padbury v. Clark, 816, 823. 
 Paddington Charities, in re, 106. 
 Page, ex parte, 716. 
 
 V. Adam, 435, 437, 440, 444. 
 
 V. Broom, 425. 
 
 V. Cooper, 416, 417. 
 
 V. Leapingwell, 182, 183, 195. 
 
 V. Way, 134. 
 
 Paine v. Meller, 174, 175. 
 Painter, ex parte, 715, 716. 
 Palmer, ex parte, 715. 
 
 V. Carlisle, (' '^-d'* 
 
 V. Jones, 766. 
 
 V. Mitchell, 
 
 V. Simmonds, 168, 171. 
 
 V. Young, 218. 
 
 Palmes v. Danby, 830. 
 
 Pannell v. Hurley, 226, 227, 459, 562. 
 
 Panton v. Panton, 337. 
 
 Papillon V. Voice, 144, 154, 562. 
 
 Parke's Charity, 503, 781, 782. 
 
 Parker v. Bloxam, 319. 
 
 V. Brooke, 121, 643, 694, 727, 728. 
 
 V. Carter, 586, 617, 622, 623. 
 
 Parkes v. White, 120, 123, 124, 406, 
 
 460, 462, 470, 640, 643, 774. 
 Parkinson's Trust, in re, 169. 
 Parnham v. Hurst, 276. 
 Parr v. Attorney-General, 31. 
 Parrot v. Treby, 877. 
 Parrott v. Palmer, 753. 
 Parry's Trust, in re, 381. 
 Parry, in re, 377. 
 
 V.Warrington, 813. 
 
 Parsons v. Baker, 168. 
 
 V. Potter, 235. 
 
 Partridge v. Pawlet, 201. 
 Passingham v. Selby, 489. 
 - — V. Sherborne, 505, 579. 
 Pattinson, in re, 883, 906. 
 Pattison v. Hawkesworth, 735. 
 Paul V. Birch, 274. 
 
 V. Compton, 167, 168, 172. 
 
 Pawlett, ex parte, 348. 
 
 V. Attorney-General, 11, 30, 103. 
 
 260, 279, 280, 284, 285, 677, 725. 
 Payne, ex parte, 168, 169, 836. 
 
 V. Barker, 595. 
 
 V. Compton, 725. 
 
 Peacham v. Daw, 867. 
 
 Peachy v. Duke of Somerset, 283.
 
 Ixviii 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 Peacock v. Monk, 633, 643, 645. 
 Peake v. Ledger, 851. 
 
 V. Penlington, 164. 
 
 Pearce v. Gardner, 416, 527. 
 
 V. Newlyn, 725. 
 
 V. Slocombe, 489, 490. 
 
 Pearse v. Baron, 165. 
 
 V. Green, 599. 
 
 Pearson v. Belchier, 739. 
 
 V. The Bank of England, 33. 
 
 V. Lane, 598, 821. 
 
 V. Pulley, 731, 734. 
 
 Peart, ex parte, 381. 
 
 Pease, ex parte, 278. 
 
 Peat V. Crane, 351. 
 
 Peatfield v. Benn, 582. 
 
 Pechel V. Fowler, 415, 422, 723. 
 
 Peers v. Ceeley, 366, 558. 
 
 Pelly T. Maddin, 200. 
 
 Penfold V. Bouch, 181, 595, 875. 
 
 Penn v. Lord Baltimore, 10, 30, 31, 47, 
 
 50. 
 Penne v. Peacock, 526. 
 Pennell v. Deffell, 333, 760. 
 
 V. Home, 742. 
 
 Pennefather, in re, 713. 
 Penny v. Pretor, 835. 
 
 V. Turner, 703, 704. 
 
 Pentland v. Stokes, 720. 
 Pepper v. Tuckey, 712, 838. 
 Peppercorn v. Wayman, 237. 
 Perkins v. Baynton, 359, 361. 
 
 V. Bradley, 28. 
 
 Perrott v. Perrott, 408. 
 Perry (in the goods of) 234. 
 
 V. Knott, 10, 16, 17, 768, 845, 
 
 846, 850, 853, 854. 
 
 V. Phelips, 762. 
 
 Persse v. Persse, 94. 
 Petit V. Smith, 20. 
 Petre v. Bruin, 488. 
 
 V. Petre, 745, 746. 
 
 Pettiward v. Prescott, 752. 
 Petty V. Styward, 201. 
 Peyton v. Bury, 299, 536. 
 
 V. M'Dermott, 835. 
 
 Phayre v. Peree, 725. 
 Phelps, ex parte, 711. 
 Phene v. Gillan, 563. 
 Philips V. Brydges,10, 16, 17, 600, 604, 
 615, 792. 
 
 V. Bury, 492. 
 
 V. Everard, 425. 
 
 V. Philips, 373. 
 
 Phillipott's Charity, 781. 
 
 Phillippo V. Munnings, 243, 356, 729, 
 
 763, 867. 
 Phillips's Charity, in re, 781. 
 
 V.Buckingham, (Duke of) 850. 
 
 exparte, 825, 826, 827, 829, 830. 
 
 V. Brydges, 142. 
 
 V. Eastwood, 516. 
 
 v. Garth, 701, 7o7. 
 
 V. Phillips, 181, 183. 197. 
 
 Pbillipson v. Gatty, 345, 356, 357, 737, 
 
 849. 
 Phillpotts V. Phillpotts, 138. 
 Philpot, ex parte, 479. 
 Phipps V. Lord Ennismore, 136. 
 
 V. Kelynge, 111. 
 
 Pickering V. Pickering, 353, 354, 811, 
 812 
 
 v. Lord Stamford, 734, 737, 739. 
 
 V. Vowles, 217, 218, 222, 263, 386. 
 
 Pickett V. Loggon, 752. 
 Pickstock V. Lyster, 474, 475, 476. 
 Pickup V. Atkinson, 810. 
 Pierce v. Scott, 429, 458. 
 Piercy v. Roberts, 133. 
 Pierson v. Garnet, 167, 168, 169, 170, 
 696. 
 
 V. Shore, 217, 831. 
 
 Piety V. Stace, 357, 359, 361, 875. 
 Pike V. White, 45. 
 Pilkington v. Bayley, 57. 
 
 V. Boughey, 168, 182. 
 
 Pimm V. Insall, 285. 
 
 Pink V. De Thuisey, 538. 
 
 Pitt V. Bonner, 767, 768. 
 
 Pitt or Pit V. Hunt, 12, 631, 648. 
 
 Y. Pelham, 173, 694. 
 
 Pitts V. Edelph, 726. 
 
 Plasket V. Lord Dillon, 648, 650, 651. 
 
 Platel T. Craddock, 326. 
 
 Piatt V. Sprigg, 407. 
 
 Playfair v. Cooper, 748. 
 
 Playters v. Abbott, 390, 397, 403. 
 
 Plenty v. West, 575. 
 
 Plucknett v. Kirke, 650, 684. 
 
 Plunket V. Penson, 488, 684, 685, 689, 
 690. 
 
 Plunkett, ex parte, 713. 
 
 Plyers Trust, in re, 885, 896. 
 
 Plymouth v. Hickman, 64. 
 
 Pocock V. Reddington, 338, 343, 357, 
 875. 
 
 Podmore v. Gunning, 77. 
 
 Poland V. Glyn, 480. 
 
 Pole V. Pole, 207, 210, 211, 215. 
 
 Pollard, exparte, 48. 
 
 v. Downes, 562. 
 
 Pollexfen v. Moore, 234. 
 
 Polley V. Seymour, 806, 808. 
 
 Pomfret (Earl of) v. Lord Windsor, 
 325, 729, 735, 739. 
 
 Pool Bathurst's Estate, in re, 577. 
 
 Poole V. Pass, 595, 596. 
 
 T. Franks, 871. 
 
 Pooley Y. Ray, 740. 
 
 Poor v. Mial, 193. 
 
 Pope Y. Gwyn, 488. 
 
 Y. Pope, 170, 171. 
 
 Y. Whitcombe, 701, 704, 706, 707. 
 
 Porey v. Jiixon, 8. 
 
 Porter's Trust, in re, 895. 
 
 V. Watts, 583. 
 
 Y. Walker, 477. 
 
 Portington's (Lady) case, 58.
 
 TABLE OF CASES. 
 
 Ixix 
 
 Portlock V. Gardner, 226, 319, 562, 
 730. 
 
 Portsmouth (Earl of) v. Fellows, 711. 
 
 Potter V. Chapman, 22, 536, 538, 543. 
 
 Poulson. ex parte^ 772, 773. 
 
 Poulton, in re, 834. 
 
 Povey V. Juxon, 59. 
 
 Powdrell v. Jones, 627. 
 
 Powel V. Price, 149, 725. 
 
 Powell's case, 487. 
 
 Powell V. Cleaver, 353, 808. 
 
 V. Evans, 328, 351. 
 
 V. Hankey, 643. 
 
 V. Matthews, 882, 885. 
 
 V. Merrett, 325. 
 
 V. Wright, 851. 
 
 Powerscourt v. Powerscourt, 542. 
 
 Powles v. Page, 613. 
 
 Powlett (Eari) v. Herbert, 317, 875. 
 
 Powys v. Blagrave, 514. 
 
 V. Mansfield, 216. 
 
 Prankerd v. Prankerd, 199, 214. 
 
 Pratt v. Colt, 12, 650, 682. 
 
 . V. Sladden, 181. 
 
 Prendergast v. Eyre, 835, 836, 839. 
 
 Prentice v. Prentice, 856. 
 
 Preston v. Grand Collier Dock Compa- 
 ny, 851. 
 
 Prevost V. Clarke, 167. 
 
 Price V. Berrington, 27. 
 
 • V. Blakeuiore, 759, 762, 763. 
 
 V. Byrn, 460, 470. 
 
 V. Dewhurst, 835. 
 
 V. Loaden, 562. 
 
 v. Oneby, 832. 
 
 V. Price, 81, 84. 
 
 Prichard V. Ames, 121, 122, 694. 
 
 Priddy v. Rose, 771. 
 
 Pride v. Fooks, 118, 318, 344, 764, 876. 
 
 Prideaux, in re, 835. 
 
 Primrose v. Bromley, 238. 
 
 Prince v. Heylin, 735. 
 
 Pring, ex parte, 183. 
 
 V. Pring, 74, 76. 
 
 Prior's (Lady) Charity, in re, 505. 
 
 V. Horniblow, 744. 
 
 V. Penpraze, 279. 
 
 Pritchard v. Langher, 330. 
 
 Propert's purchase, in re, 882. 
 
 Projected Railway, exparte, 352. 
 
 Prosser, exparte, 835. 
 
 Proudfoot V. Hume, 866, 867. 
 
 Prowse V. Abingdon, 489. 
 
 Prytharch v. Havard, 839. 
 Pugh, exparte, 370. 
 
 in re, 634. 
 
 V. Vaughan, 589. 
 
 Puleston V. Puleston, 67. 
 Pullen V. Middleton, 46. 
 Pulling V. Tucker, 480. 
 Pulteney v. Darlington, 758, 792, 796, 
 800, 802, 803, 805, 807, 821, 823, 
 824, 825. 
 V. Warren, 751, 753, 754, 755. 
 
 Pulvertoft V. Pulvertoft, 81, 84, 93, 94, 
 
 98. 
 Purdew v. Jackson, 627, 629, 630. 
 Purefoy v. Purefoy, 484. 
 Pushman v. Filliter, 167, 168, 169, 171. 
 Pybus V. Smith, 123, 766. 
 Pye, exparte, 65, 82. 
 
 V. Gorge, 405, 406, 724. 
 
 Pyncent v. Pyncent, 849. 
 Pym V. Lockyer, 130. 
 
 Quarrell v. Beckford, 559. 
 The Queen v. Abrahams, 19. 
 
 V. Harrogate Commissioners, 272. 
 
 T. Norfolk Commissioners of Se- 
 wers, 516. 
 
 V. Pitt, 836. 
 
 V. Sterry, 271. 
 
 V. Trustees of Orton Vicarage, 19. 
 
 Queen's College, Cambridge, m re, 495. 
 Quick V. Staines, 278. 
 
 Raby v. Ridehalgh, 340, 344, 771. 
 Rachfield v. Careless, 59, 69, 182, 262. 
 Rackham v. Siddall, 245, 247, 258, 263, 
 
 765. 
 Radclifife v. Eccles, 835. 
 Radnor (Lady) v. Rotherham, 621. 
 Raffety v. King, 733. 
 Ramsden v. Langley, 558. 
 Randal v. Hearle, 168. 
 
 V. Randal, 94. 
 
 Randall's Will, in re, 890. 
 
 V. Bookey, 181, 183. 
 
 V. Erring'ton, 460, 461, 463, 469, 
 
 470, 471 737, 778. 
 
 V. Russell, 225. 
 
 Raphael v. Bank of England, 758. 
 
 V. Boehm, 356, 359, 364, 766, 877. 
 
 Rashley v. Masters, 796, 872, 873. 
 
 Rastel V. Hutchinson, 205. 
 
 Ratcliff V. Graves, 360. 
 
 RatclifiFe v. Winch, 521. 
 
 Ravenscroft v. Frisby, 745. 
 
 Ravenshaw v. Hollier, 174. 
 
 Rawe V. Chichester, 218, 219, 220, 222, 
 
 224. 
 Rawleigh's case, 214. 
 Raworth v. Parker, 486, 487. 
 Ray, exparte, 121, 122. 
 
 V. Adams, 168, 696. 
 
 Raymond v. Webb, 414. 
 Rayner v. Mowbray, 701, 707. 
 Rea V. Williams, 201. 
 Reach v. Kennegall, 71, 877. 
 Read v. Prest, 856. 
 
 V. Snell, 144, 149, 155. 
 
 V. Truelove, 290. 
 
 Reade v. Reade, 751, 755, 756. 
 
 v. Sparkes, 591, 857, 858. 
 
 Reading Dispensary, in re, 782. 
 Redington v. Redington, 200, 203, 207, 
 
 211, 212, 214, 215, 216. 
 Reece v. Trve, 325. 721.
 
 Izz 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 Reech v. Kennegal, 71, 8 77. 
 Reed v. O'Brien, 89, 848. 
 Rees, ex parte, 781. 
 
 V. Keith, 631. 
 
 V. Williams, 341, 356. 
 
 Reeve v. Attorney-General, 30, 31, C77. 
 
 V. Parkins, 723. 
 
 Reeves v. Creswick, 387, 393, 400. 
 
 Regina v. Shee, 272. 
 
 Reid V. Thompson, 596. 
 
 Remington, in re, 715. 
 
 Rendlesham v. Meux, 417. 
 
 Renvoize v. Cooper, 265. 
 
 Retford, West (Church lauds) in re, 781. 
 
 Revell V. Hussey, 175. 
 
 Rex V. Blunt, 673. 
 
 V. Bulkeley, 673. 
 
 V. Flockwood, 301. 
 
 V. Lexdale, 575. 
 
 V. Tippin, 287. 
 
 Reynolds, ex parte, 465, 468, 469, 711. 
 
 V. Jones, 288, 756. 
 
 V. Messing, 621. 
 
 Rice V. Rice, 606, 729. 
 Rich V. Cockell, 694. 
 Richard's Trust, 897. 
 V. Perkins, 870. 
 
 Richardson, ex parte, 278. 
 
 V. Bank of England, 865, 866, 867, 
 
 868. 
 
 V. Chapman, 168, 543, 708. 
 
 V. Hoiton, 285. 
 
 V. Hulbert, 234, 847. 
 
 V. Jenkins, 239, 692, 767. 
 
 V. Larpent, 852. 
 
 V. Moore, 392. 
 
 Riddle v. Emerson, 61. 
 
 Rider v. Kidder, 33, 199, 200, 205, 207. 
 216. 
 
 v. Rider, 207, 649. 
 
 Ridgeway, ex parte, 343. 
 
 Ridgway v. Woodhouse, 193. 
 
 Ridout V. Lewis, 643. 
 
 Rigby, ex parte, 297. 
 
 Rigden v. Vallier, 152, 201, 202. 
 
 Eiggs V. Sikes, 202, 833. 
 
 Right V. Smith, 248. 
 
 Ripley v. Waterworth, 33, 189. 
 
 Rippon V. Norton, 134. 
 
 Rivet's case, 272. 
 
 Robarts ( v.) 544, 583. 
 
 Roberdeau v. Rous, 47, 48, 753. 
 
 Roberts v. Dixwell, 142, 144, 155, 157, 
 251, 623, 681. 
 
 V. Kingsley, 148. 
 
 V. Lloyd, 87, 605. 
 
 V. Spicer, 122, 694. 
 
 V. Tunstall, 470, 471, 473, 
 
 742. 
 
 Robertson v. Skelton, 174. 
 
 Robinson v. Comyns or Cumin"-. 
 247, 604. 
 
 V. Grey, 246, 247, 254. 
 
 V. Hedger, 657. 
 
 r37, 
 
 16, 
 
 Robinson v. Knight, 187, 805. 
 
 V. Lowater, 435, 441, 445, 446, 447. 
 
 V. Pett, 232, 318, 319, 545, 551, 
 
 553. 
 
 V. Ridley, 466, 468. 
 
 V. Robinson, 341, 346, 350, 355, 
 
 356, 361, 363. 
 
 V. Smith, 168. 
 
 V. Taylor, 179, 180, 183. 
 
 V. Wheelwright, 121. 
 
 V. Wood, 837. 
 
 Rochard v. Fulton, 608. 
 Rochdale Canal Co. v. King, 743. 
 Roche, in re, 572, 573, 574, 711, 713. 
 
 V. O'Brien, 471, 472, 473, 734, 737, 
 
 738, 778. 
 
 V. Hart, 873. 
 
 Rochford v. Fitzmaurice, 147, 148, 149, . 
 154, 156, 157, 164, 253. 
 
 V. Hackman, 135, 873. 
 
 Rocke V. Hart, 359, 361, 363. 
 
 V. Rocke, 597. 
 
 Rodgers v. Marshall, 97, 99. 
 Roe V. Fludd, 195. 
 
 V. Reade, 263, 591. 
 
 Rogers v. Linton, 849. 
 
 V. Rogers, 180, 181, 183, 184, 865. 
 
 V. Skillicorne, 434, 435, 436. 
 
 Rolle's Charity, in re, 718. 
 Rolleston v. Morton, 662. 
 Rollfe V. Budder, 121, 694. 
 Rome V. Young, 485. 
 Rook V. Worth, 823, 829, 830, 838. 
 Roper V. Holland, 19. 
 
 V. Radcliffe, 179. 
 
 Rose, exparte, 613. 
 
 V. Cunningham, 69. 
 
 V. Haycock, 478. 
 
 Ross's Trust, in re, 123, 124, 632. 
 
 , in re, 381. 
 
 V. Ross, 865. 
 
 Rothwell V. Rothwell, 867. 
 Round V. Byde, 480. 
 Roupe V. Atkinson, 629. 
 Routh V. Howell, 295. 
 
 V. Kinder, 847. 
 
 Rowe V. Almsmen of Tavistock, 506, 
 507, 508. 
 
 v. Bant, 659. 
 
 Rowel V. Walley, 395. 
 Rowland v. Morgan, 163, 368. 
 
 V. W'itherden, 306, 351, 357. 
 
 Rowley v. Adams, 882, 888, 896, 903, 
 904. 
 
 V. Unwin, 642, 778. 
 
 Rowth V. Howell, 332. 
 
 Roy V. Gibbon, 867, 869, 
 
 Royds V. Royds, 876. 
 
 Royston Free Grammar School, in re, 
 
 782, 783. 
 Rumball v. Munt, 107. 
 RumboU V. Rumboll, 303, 209, 210. 
 Rumford Market case, 217. 
 Rundle v. Rundle, 202, 207.
 
 TABLE OF CASES. 
 
 Ixxi 
 
 Rushworth's case, 218. 
 Russell's case, 36, 39. 
 
 , ex parte, 891, 
 
 T. Clowes, 325. 
 
 V. Dickson, 125. 
 
 V. Jackson, Vl, 74, 169. 
 
 V. M'Culloch, 657. 
 
 • V. Plaice, 454. 
 
 Rust V. Cooper, 47, 480. 
 Rutherford v. Maule, 324. 
 Ryall V. Rolle, 274, 275, 276, 650, 754, 
 758. 
 
 V. Ryall, 63, 204, 206, 756, 762. 
 
 Rycroft v. Christy, 91, 92, 122. 
 Ryder v. Bickerton, 337, 338, 774. 
 Ryland v. Smith, 369. 
 
 Sadler v. Hobbs, 304, 305, 311, 312, 
 
 313, 314,318. 
 
 V. Lee, 594. 
 
 Saint John's Col.,'Cambridge, v. Tod- 
 
 ington, 492. 
 Saint John (Lord) v. Boughton, 485, 
 
 745. 
 
 V. Turner, 739. 
 
 Saint Wenn's Charity, in re, 781. 
 Sale V. Kitson, 855. 
 
 V. Moore, 168, 169, 170, 173. 
 
 Saloway v. Strawbridge, 420, 530. 
 Salsbury v. Baggott, 721, 726. 
 Salt V. Chattaway, 183, 197. 
 Salter v. Cavanagh, 181, 731, 745. 
 iSaltoun V. Houston, 239. 
 Salvin v. Thornton, 604. 
 Salway v. Salway, 334, 357. 
 Sammes v. Rickman, 873. 
 Sampayo v. Gould, 164, 352. 
 Sanders v. Page, 629, 631. 
 
 V. Richards, 454. 
 
 Sanderson v. Walker, 463, 470, 876. 
 Sandford, in re, 835. 
 
 V. Keech, 217. 
 
 Sandon v. Hooper, 559. 
 Sands v. Nugee, 533. 
 Sandys v. Watson, 873, 878. 
 Sanford v. Irby, 256. 
 Saunders, ex parte, 715, 716. 
 
 V. Dehew, 93, 724, 726. 
 
 V. Neville, 595. 
 
 T. Vautier, 597. 
 
 Savage v. Carroll, 763. 
 
 V. Foster, 39, 774. 
 
 V. Taylor, 511. 
 
 Saville v. Tancred, 226, 459. 
 
 Savory v. Barber, 852. 
 
 Snwley v. Gower, 684. 
 
 Sawyer v. Birchmore, 375. 
 
 Say v. Creed, 368. 
 
 Sayers, ex parte, 276, 754, 758, 759. 
 
 Scales v. Maude, 81, 88. 
 
 Scammell v. Wilkinson, 261. 
 
 Scarborough v. Borman, 125. 
 
 (Eari of) V. Parker, 875. 
 
 Scarisbrick v. Skelmersdale, 111. 
 
 Scattergood v. Harrison, 319, 546. 
 Scawen v. Scawen, 214, 215. 
 Schroder v. Schroder, 752. 
 Score V. Ford, 865, 869. 
 Scott V. Becher, 867, 870. 
 
 V. Davis, 124, 472, 473, 632. 
 
 V. Nesbitt, 47, 471. 
 
 V. Nicoll, 842. 
 
 V. Scholey, 648, 665. 
 
 V. Spashett, 370. 
 
 V. Surman, 274, 276. 
 
 V. Tyler, 453, 454, 455, 456, 458, 
 
 459. 
 Scounden v. Ilawley, 31, 260. 
 Scroope v. Scroope, 210. 
 Scudamore, ex parte, 480. 
 
 • V. Scudamore, 793, 797, 805. 
 
 Scully V. Dc4aney, 239, 316. 
 
 V. Scully, 848. 
 
 Sculthorp V. Burgess, 177. 
 
 Scurfield v. Howes, 305, 311, 312, 315, 
 
 316, 766. 
 Scale V. Scale, 153. 
 Sear v. Ashwell, 97. 
 Searle v. Law, 82, 84. 
 Seddon v. Connell, 846, 848. 
 Seeley V. Jago, 98, 816, 819. 
 Seers v. Hind, 359, 875, 878. 
 Segrave v. Kirwan, 226. 
 Selby V. Alston, 16, 792. 
 ScUack V. Harris, 70. 
 Selyard v. Harris, 847. 
 Senhouse v. Earle, 727. 
 Sergeson v. Sealey, 827, 828, 829. 
 Sergison, ex parte, 263, 833. 
 Sewell V. Denny, 118, 177. 
 
 V. Musson, 476. 
 
 Seys V. Price, 830. 
 Shadbolt v. Thornton, 808. 
 
 V. Woodfali, 426. 
 
 Shaftesbury v. Duke of Marlborough, 
 
 387, 389, 391, 393, 395, 397, 398. 
 Shakeshaft, ex parte, 356, 357,767, 768, 
 
 771, 772, 773. 
 Shales v. Shales, 214. 
 Shallcross v. Wright, 184. 
 Shanley v. Baker, 197. 
 Shannon v. Bradstrcet, 591. 
 Shapland v. Smith, 247. 
 Sharp v. Cossent, 135. 
 
 V. Sharp, 233, 264, 570. 
 
 Sharpe v. Earl of Scarborough, 650, 
 
 661, 688, 691. 
 Sharpe's Trust, in re, 377, 380. 
 Shaw, ex parte, 264, 479. 
 
 V. Borrer, 414, 428, 429, 440, 441, 
 
 513. 
 
 V. Bran, 29. 
 
 V. Lawless, 102, 167. 
 
 V. Rhodes, 114, 117, 119. 
 
 V. Weigh, 250. 
 
 Shee V. Hale, 135, 136. 
 Sheldon v. Weldman, 729. 
 Shelly's case, 827.
 
 Ixxii 
 
 LEWIN ON THE LAW OF TKUSTS, ETC. 
 
 Shepherd v. Mouls, 341, 355, 356. 
 
 V. Shepherd, 621. 
 
 Sheppard v. Smith, 875, 877. 
 
 V. Woodford, 272. 
 
 Sheridan v. Joyce, 366, 756. 
 
 Sheriffv. Axe, 320, 546. 
 
 Sherrard v. Lord Harboroiigh, 179, 318. 
 
 Sherratt v. Bentley, 234, 874. 
 
 Sherwood, in re, 320, 549. 
 
 Shewell v. Shewell, 368. 
 
 Shewen v. Vanderhorst, 524. 
 
 Shields v. Atkins, 325. 
 
 Shine V. Gough, 511, 591. 
 
 Shipbroolc (Ld.) v. Lord Hinchinbrook, 
 
 305, 311, 312, 315, 316. 
 Shiphard v. Lutwidge, 488. 
 Shippardson v. Tower, 808. 
 Shipton T. Rawlins, 845, 854. 
 Shirley v. Ferrers, 489. 
 
 V. Watts, 648, 649. 
 
 Shore v. Collett, 227. 
 
 Shorrocks, in re, 835. 
 
 Short V. Wood. 820. 
 
 Shrewsbury School, in re, 269, 318, 782. 
 
 Sidebotham v. Barrington, 422. 
 
 Sidmouth v. Sidmouth, 200, 207, 211, 
 
 214, 215, 216. 
 Sidney v. Shelley, 182, 191, 
 Siebert v. Spooner, 477. 
 Sikes V. Lister, 832. 
 Silk T. Prime, 489. 
 Sillibourne v. Newport, 538. 
 Simmonds v. Falles, 482, 483. 
 Simes v. Eyre, 849. 
 
 V. Naylor, 834. 
 
 Simpson v. Morley, 668. 
 
 V. Sikes, 477, 478, 479. 
 
 T. Taylor, 648. 
 
 Sims V. Marryatt, 249. 
 
 Sish V. Hopkins, 660. 
 
 Sisson V. Shaw, 517. 
 
 Sitwell V. Bernard, 813. 
 
 Skarflfv. Soulby, 93. 
 
 Skeats v. Skeats, 209, 211, 215. 
 
 Skeetes, in re, 785. 
 
 Skett r. Whitmore, 61, 204. 
 
 Skinner, ex parte, 505, 507, 781, 782 
 
 783. 
 Slade V. Rigg, 848. 
 Slater v. Wheeler, 300, 847. 
 Slewringe's Charity, in re, 781, 783. 
 Sloane v. Cadogan, 81, 89, 93. 
 Sloman v. Bank of England, 372. 
 Sloper, in re, 897. 
 Small V. Attwood, 774, 777, 844. ' 
 
 V. Marwood, 237. 
 
 V. Dudley, 480. 
 
 Smart v. Bradstock, 852. 
 
 Smee v. Martin, 518. 
 
 Smith, exparte, 298, 471, 771, 835. 
 
 V. Adams, 621. 
 
 V. Adkins, 106. 
 
 V. Attersoll, 77. 
 
 V. Baker, 199. 
 
 Smith V. Boucher, 894. 
 
 V. Camelford, 200, 643. 
 
 V. Clay, 732. 
 
 V. Claxton, 184, 185, 818. 
 
 V. French, 774, 777. 
 
 V. Garland, 93. 
 
 V. Guyon, 435. 
 
 V. Hibbard, 832. 
 
 V. Hurst, 662, 663, 666. 
 
 V. Jameson, 20. 
 
 V. Keating, 481. 
 
 V. King, 39, 180. 
 
 V. Lyne, 99. 
 
 V. Smith, 34, 605, 609, 612, 771, 
 
 870, 885, 896. 
 
 V. Snow, 595, 850. 
 
 V. Spencer, 626. 
 
 V. Warde, 101. 
 
 V. Wheeler, 236, 449, 585. 
 
 V. Wilkinson, 63. 
 
 Smyth's Settlement, 896, 897, 905. 
 Snow V. Booth, 749. 
 
 v. Hole, 875. 
 
 Snowdon v. Dales, 132, 133. 
 Sockett V. Wray, 35. 
 Sombre Dyce, in re, 835. 
 Somerset's case (Earl of), 676. 
 Sonley v. Clockmakers' Company, 693. 
 Southampton (Lord) v. Marquis of Hert- 
 ford, 111, 161, 191. 
 
 Southcomb v. Bishop of Exeter, 742. 
 
 South Eastern Railway Company, ex 
 parte, 342. 
 
 Southouse V. Bate, 181. 
 
 South Sea Company v. Wymondsell, 
 734, 735. 
 
 Southwell V. Ward, 713. 
 
 Sowarsby v. Lacy, 432. 
 
 Sowerby's Charity, in re, 782. 
 
 Spackman Y. Timbrell, 285. 
 
 Spalding v. Shalmer, 304, 429, 435. 
 
 Sparling v. Parker, 815. 
 
 Spink V. Lewis, 182, 183. 
 
 Spottiswoode v. Stockdale, 486. 
 
 Sprange v. Barnard, 169, 171. 
 
 Sprigg V. Sprigg, 190, 195. 
 
 Spring V. Biles, 706. 
 
 Spurgeon v. Collier, 284, 724. 
 
 Spunner v. Walsh, 836. 
 
 Spurrier v. Hancock, 175. 
 
 Squire v. Dean, 643. 
 
 V. Ford, 486. 
 
 Stacey v. Elph, 233, 235, 242, 462. 
 
 Stackhouse v. Barnston, 737, 751, 756. 
 
 Stackpole v. Davoren, 751, 752. 
 
 Stacpoole v. Stacpoole, 359, 875. 
 
 Stahlsclimidt v. Lett, 520. 
 
 Staines v. Morris, 425. 
 
 Stair V. Macgill, 813. 
 
 Stamford (Earl of) v. Sir John Hobart, 
 
 144, 156. 
 Stamp V. Cooke, 707. 
 Stamper v. Millar, 301. 
 Standford v. Marshall, 634, 641.
 
 TABLE OF CASES. 
 
 Isxiii 
 
 Stanes v. Parker, 549, 550. 
 Stanley, in re, 836. 
 
 V. Bond, 670. 
 
 V. Darington, 291. 
 
 V. Leigh, 150. 
 
 Stanley v. Lennard, 145, 247. 
 Stansfield v. Hobson, 855. 
 Stanton v. Hall, 121, 122, 135. 
 Staple's Trust, in re, 381. 
 Stapleton v. Stapleton, 82. 
 Starkey v. Brooks, 180, 181, 183. 
 Stead V. Nelson, 633, 635, 645. 
 
 V. Newdigate, 792, 807, 818. 
 
 Steele v. Philips, 650. 
 Stent V. Bailis, 174. 
 Stephens v. James, 135. 
 
 V. Trueman, 94. 
 
 Stevens v. Hotham, 425. 
 V. South Devon Railway Com- 
 pany, 516. 
 Stermett v. Bainbridge, 468. 
 Stewart v. Hoare, 556. 
 
 v. Noble, 489. 
 
 Stickland v. Aldridge, 67, 68, 70, 71. 
 
 Stickney v. Sewell, 338, 345. 
 
 Stiffe V. Everitt, 627. 
 
 Stikeman v. Dawson, 39, 
 
 Stile V. Tomson, 530. 
 
 Stiles V. Guy, 239, 316, 329, 338, 661, 
 
 737. 
 Stileman v. Ashdown, 210, 212, 650, 
 
 658, 659, 660. 
 Stocken v. Dawson, 549. 
 Stone V. Godfrey, 325, 737, 775, 778. 
 
 V. Gratham, 476. 
 
 V. Theed, 383, 384, 386, 388, 389, 
 
 395. 
 
 V. Van Heythusen, 482, 490. 
 
 V. Wythipole, 37. 
 
 Stones V. Rowton, 578. 
 Stonehewer v. Thompson, 660. 
 Stonehouse v. Evelyn, 183. 
 Stonor v. Curwen, 147, 155, 156. 
 Storry v. Walsh, 441, 445, 446, 448. 
 Story v. Tonge, 372. 
 Stott v. Hollingworth, 813. 
 Stow V. Drinkwater, 262. 
 Stafford v. Powel, 146, 163. 
 
 V. Twynam, 465. 
 
 Streatfield v. Streatfield, 148. 
 Stretton v. Ashmall, 345. 
 Stright, ez parte, 612. 
 Strode v. Russel, 262. 
 
 V. Winchester, 71. 
 
 Strong V. Strong, 853. 
 
 Stroughill V. Anstey, 416, 417, 434, 436, 
 
 437, 439, 458. 
 Stuart, ex parte, 425. 
 
 V. Bruere, 813. 
 
 V. Kirkwall, 634, 635, 639, 641. 
 
 V. Stuart, 340, 348. 
 
 Stuckey v. Drewe, 475. 
 Stnltz's Trust, in re, 136. 
 Stubbs, ex parte, 715. 
 
 Stubbs V. Roth, 218, 223. 
 
 V. Sargon, 181. 
 
 Sturgis V. Champueys, 629, 630. 
 
 V. Corp, 124. 
 
 Sturt V. Mellish, 19, 20. 
 
 Stutely, ex parte, 379, 772. 
 
 Sty an, in re, 613. 
 
 Suir Island Female Charity School, in 
 
 re, 503, 782. 
 Supple V. Lowson, 542, 705, 706, 782. 
 Sutcliffe V. Cole, 190. 
 Sutherland v. Cooke, 808, 810, 815. 
 Sutton V. Jones, 319, 460. 
 
 V. Sharp, 359, 361. 
 
 Sutton Colefield case, 198, 726. 
 
 Swan V. Swan, 511. 
 
 Swayne v. Swayne, 613. 
 
 Sweet V. Southcote, 726. 
 
 Sweetapple v. Bindon, 153, 621, 622, 
 
 793. 
 Swift, ex parte, 517. 
 
 v. Davis, 211, 214. 
 
 V. Gregson, 701, 706. 
 
 V. Nash, 69. 
 
 Swinnock v. Crisp, 518. 
 Sykes v. Hastings, 319. 
 Sylva V. Da Costa, 834. 
 Sylvester v. Jarman, 263. 
 
 v. Wilson, 247. 
 
 Symance v. Tattam, 409. 
 Symons v. Rutter, 807. 
 Symson v. Turner, 247. 
 Synge v. Hales, 141, 146, 164. 
 
 Tabor v. Grover, 18. 
 Taggart v. Taggart, 152, 153. 
 Tait V. Jenkins, 871. 
 
 V. Northwick, 482, 491. 
 
 Talbot V. Earl of Radnor, 234, 367. 
 
 V. Whitfield, 820. 
 
 Taner v. Ivie, 455. 
 Tanner v. Dancey, 873. 
 
 V. El worthy, 218. 
 
 Tappenden v. Burgess, 477, 478, 479. 
 
 V. Walsh, 694. 
 
 Tarback v. Marbury, 476. 
 Tardiffv. Robinson, 392. 
 Targus v. Puget, 153. 
 Tarleton v. Hornby, 768, 845. 
 Tasker v. Small, 175, 844. 
 Taster V. Marriott, 218. 
 Tatam v. Williams, 742. 
 Taylor, ex parte, 477, 478. 
 Taylor's Trust, in re, 807. 
 
 v. Allen, 870. 
 
 V. Alston, 214, 215. 
 
 V. Clark, 815. 
 
 V. Crompton, 753. 
 
 V. George, 167, 168. 
 
 V. Glanville, 367, 873, 875. 
 
 V. Hawkins, 456. 
 
 V. Haygarth, 198, 321, 324, 679. 
 
 V. Hibbert, 813. 
 
 V. Jones, 9^, 648.
 
 Ixxiv 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 Taylor v. Plumer, 274, 275, 754, 757, 
 758, 763. 
 
 V. Salmon, 851. 
 
 V. Stibbert, 725. 
 
 V. Tabrum, 424, 767, 876. 
 
 V. Taylor, 39, 184, 207, 212, 215, 
 
 633. 
 
 V. Wheeler, 276. 
 
 Tee V. Ferris, 71, 73. 
 
 Tebbs V. Carpenter, 328, 358, 359, 361, 
 
 362, 364,365, 876, 879. 
 Tenant v. Brown, 173. 
 Tench v. Cheese, 116. 
 Terry V. Terry, 337, 513. 
 Theebridge v. Kilburne, 149. 
 Thetford School case, 198, 199. 
 Thicknesse v. Vernon, 201. 
 Thomas, ex parte, 277. 278. 
 
 V. Bennett, 643. 
 
 V. Burne, 223. 
 
 V. Bering, 538, 540, 541. 
 
 V. Dunning, 842, 843. 
 
 V. Gwynne, 834. 
 
 T. Hole, 707. 
 
 V. Thomas, 751, 756. 
 
 Thomason v. Mackworth, 251. 
 Thompson, in re, 836. 
 
 V. Blackstone, 415. 
 
 V. Grant, 264. 
 
 v. Harrison, 777. 
 
 V. Jackson, 476. 
 
 V. Leach, 36. 
 
 T. Simpson, 722, 728, 745, 775. 
 
 Thompson v. Speirs, 613. 
 Thorby v. Yeats, 595, 858, 875. 
 
 Thornley v. Aspland, 137. 
 
 Thornton v. Ellis, 813. 
 
 V. Hawley, 800, 806, 807, 816. 
 
 Thorp V. Thorp, 376, 377. 
 
 Thorpe v. Jackson, 848. 
 
 V. Owen, 61, 82, 172, 681. 
 
 Thrupp V. Harman, 643, 644, 681. 
 
 Thrustout V. Coppin, 262. 
 
 Thruxton v. Attorney-General, 56. 
 
 Thynn v. Thvnn, 71. 
 
 Tibbits V. Tibbits, 168, 169, 171. 
 
 Tickner v. Smith, 358. 
 
 Tidd v. Lister, 370, 587, 870. 
 
 Tierney v. Wood, 65. 
 
 Tiffin V. Longman, 705. 
 
 Tinstone's Trust, in re, 377. 
 
 Tilly V. Bridges, 755. 
 
 Timson v. Ramsbottom, 608, 610, 014. 
 
 Tipping V. Piggott, 405, 406. 
 
 V. Power, 873. 
 
 Titley v. Wolstenholme, 265, 266. 
 
 Todd T.Wilson, 549, 550. 
 
 Toft V. Stephenson, 746. 
 
 Toller V. Attwood, 256. 
 
 V. Carteret, 48. 
 
 Tooke V. HoUingsworth, 274. 
 
 Tournay, in re, 37G. 
 
 Townley V. Bedwell, 392, 808. 
 
 V.Bond, 244, 390, 392. 
 
 Townley v. Sherborne, 299, 302, 304. 
 Townsend, ex parte, 29, 295. 
 
 , in re, 883. 
 
 V. Ash, 756. 
 
 V. Barber, 314. 
 
 V. Lawton, 409. 
 
 V. Westacott, 93. 
 
 V.Wilson, 301, 528. 
 
 Townshend (Marquis of) v. Bishop of 
 Norwich, 179. 
 
 V. Townshend, 729, 730, 731. 
 
 V. Windham, 643. 
 
 Townson v. Tickell, 236, 237. 
 Trafford v. Boehm, 341, 351, 768, 792, 
 820, 821, 823. 
 
 V. Trafford, 160. 
 
 Trash v. Wood, 45, 680. 
 Travell v. Danvers, 710. 
 Travers v. Townsend, 876. 
 Tregonwell v. Sydenham, 181, 182, 189, 
 
 190, 191. 
 Trench v. St. George, 384, 385. 
 
 V. Harrison, 200, 206, 350, 756, 
 
 763. 
 
 Trent v. Banning, 250. 
 
 Treves v. Townsend, 359, 361, 362. 
 
 Trevor v. Peryor, 682. 
 
 V. Trevor, 147, 155, 156, 725, 
 
 Trickey v. Trickey, 117. 
 
 Trinity College v. Brown, 272. 
 
 Triquet v. Thornton, 806. 
 
 Trot V. Vernon, 167. 
 
 Trott V. Dawson, 560. 
 
 Trower v. Knightley, 531, 819. 
 
 Trutch V. Lamprell, 291. 
 
 Tryon, in re, 234. 
 
 Tucker v. Boswell, 813. 
 
 V. Thurstan, 284. 
 
 Tudor V. Samyne, 631. 
 
 Tuer V. Turner, 818. 
 
 Tuffnell V. Page, 45, 616. 
 
 Tullet V. Tullet, 830. 
 
 Tullett V. Armstrong, 122, 128, 633, 
 634, 635. 
 
 Tulloch V. Hartley, 50. 
 
 Tunstall v. Trappes, 651, 661, 662, 672, 
 772. 
 
 Tunstall's Will, 895. 
 
 Turquand v. Knight, 875. 
 
 Turner, ex parte, 435, 441, 442, 772. 
 
 (Sir Edward's) case, 631. 
 
 V. Buck, 288, 719, 751. 
 
 V. Corney, 290, 599. 
 
 V. Frampton, 368. 
 
 V. Gwinn, 603. 
 
 V. Harvey, 415. 
 
 V. Hill, 217. 
 
 V. Hind, 853. 
 
 V. Mauley, 356, 366, 574. 
 
 V. Sargent, 146, 164. 
 
 v. Turner, 358. 
 
 V. Wardle, 238. 
 
 Turnley v. Kelly, 121. 
 Turpin. ex parte, 771.
 
 TABLE OF CASES. 
 
 Isxv 
 
 Tutin, ex parte, 833. 
 Twistleton v. Thelwel, 873. 
 Twopeny v. Peyton, 133. 
 Twyne's case, 416. 
 Tylden v. Hyde, 445. 
 Tylee y. Tylee, 869. 
 Tyler V. Lake, 122. 
 Tyler's Trust, in re, 895. 
 Tyrrell v. Hope, 122, 217. 
 Tyrrell's case (Lady,) 177. 
 
 Underwood v. Hatton, 375, 487, 522, 
 765. 
 
 T. Stevens, 315, 316, 774. 
 
 Uaiacke, in re, 233, 237. 
 
 University College, Oxford, in re, 495. 
 
 of Oxford V. Richardson, 753. 
 
 Upton Warren, in re, 781. 
 
 UpfuU's Trust, in re, 376. 
 
 Urch V. Walker, 233, 234, 240, 241, 366. 
 
 Uvedale v. Ettrick, 712. 
 
 V. Uvedale, 873. 
 
 Van V. Barnett, 723, 806, 816, 823. 
 Van Sandau v. Moore, 857. 
 Vandebende v. Levingston, 752. 
 Vanderstegen v. Witham, 19. 
 Vaughan v. Buck, 369, 370, 810, 812. 
 
 V. Burslem, 151, 162, 163. 
 
 V. Farrer, 504. 
 
 V. Vanderstegen, 639, 768. 
 
 Venables v. Morris, 253. 
 Verner, ex parte, 136. 
 Verney v. Carding, 725, 758. 
 
 v. Verney, 384, 386, 395. 
 
 Vernon's case, 58. 
 Vernon, ex parte, 200, 832. 
 
 V. Blackerley, 844. 
 
 V. Vawdry, 238, 764. 
 
 V. Vernon, 94, 167, 830. 
 
 Verulam (Earl of) v. Bathurst, 155. 
 Vez V. Emery, 367. 
 Vezey v. Jamson, 182. 
 Vick V. Edwards, 252. 
 Vickers v. Cowell, 201. 
 
 V. Scott, 415, 813. 
 
 Vigor V. Harwood, 813. 
 Vigrass v. Binfield, 337, 867, 869. 
 Villers v. Beaumont, 97. 
 Villiers v. Villiers, 250. 
 Vincent v. Godson, 239. 
 
 V. Newcombe, 345, 810. 
 
 Viner v. Cadell, 274, 278. 
 Voyle V. Hughes, 91. 
 
 Wackerbath, ex parte, 305. 
 
 V. Powell, 294. 
 
 Wade V. Paget, 16. 
 Wadley v. Wadley, 392. 
 Wagstaff V. Smith, 122, 124, 248. 
 
 V. Wagstaff, 45, 615, 616. 
 
 Wain V. Earl of Egmont, 487, 538, 541. 
 Wainwright v. Bagshaw, 107. 
 V. Elwell, 15. 
 
 Wainwright V. Hardisty, 635, 645. 
 
 V. Waterman, 696. 
 
 Waite V. Whorwood, 754, 757. 
 
 Waithman, ex parte, 612. 
 
 Wake V. Wake, 893, 903. 
 
 Wakeford, in re, 834, 883. 
 
 Wakeman v. Duchess of Rutland, 427, 
 844. 
 
 Walburn v. Ingilby, 846. 
 
 Walford ( v.) 596. 
 
 Waldo V. Caley, 542. 
 
 V. Waldo, 515. 
 
 Walker ( v.) 345. 
 
 Walker, in re, 546, 818, 834, 883. 
 
 V. Denne, 791, 795, 798, 805, 806, 
 
 819. 
 
 V. Meager, 487, 643. 
 
 V. Preswick, 725, 845. 
 
 V. Shore, 415, 775, 816. 
 
 . V. Smalwood, 429, 434, 524. 
 
 V. Symonds, 290, 304, 307, 311, 
 
 312, 317, 337, 338, 357, 599,726, 
 767. 774, 775, 777, 778, 845. 
 
 V. Walker, 538, 540. 
 
 v.Wetherell, 518. 
 
 V. Woodward, 363. 
 
 Wall V. Bright, 175, 263, 268. 
 
 Wallburn v. Ingilby, 846. 
 
 Walley V. Whalley, 217, 222, 224, 725. 
 847. 
 
 Wallgrave v. Tebbs, 73, 79. 
 
 Wallwyn v. Coutts, 101, 476, 481. 
 
 WalshV. Dillon, 858. 
 
 V. Gladstone, 572. 
 
 V. Wallinger, 701, 703, 704. 
 
 Walter v. Maunde, 599, 707, 808. 
 
 V. Saunders, 631. 
 
 Walton, ex parte, 715. 
 
 V. Merry, 839. 
 
 V. Walton, 59, 69, 180, 182. 
 
 Walworth v. Holt, 851. 
 
 Wankford v. Wankford, 234. 
 
 Warburton v. Hill, 608, 613, 614, 615. 
 
 V. Sandys, 300, 301, 567, 581. 
 
 V. Vaughan, 837, 839. 
 
 Ward V. Arch, 729, 747. 
 
 V. Audland, 88. 
 
 V. Bassett, 853. 
 
 V. Burbury, 253, 254. 
 
 V. Butler, 239, 240. 
 
 V. Lant, 177. 
 
 Wardle v. Claxton, 122, 123. 
 
 Ware v. Polhill, 829. 
 
 Waring, in re, 376, 380. 
 
 V. Coventry, 277. 
 
 V. Waring, 326, 344, 345, 350, 358. 
 
 Warman v. Seaman, 177. 
 
 Warmstreyv. Tanfield, 12, 600. 
 
 Warrick v. Warrick, 148, 727. 
 
 Warter v. Hutchinson, 248, 251. 254, 
 
 257. 
 Warwick Charities, in re, 718. 
 
 Countess of, v. Edwards, 643. 
 
 V. Richardson, 37, 581.
 
 Ixxvi 
 
 LEW IN ON 
 
 THE LAW OF TRUSTS, ETC. 
 
 Washborn v. Downes, 602. 
 Waterhouse v. Stanfield, 49. 
 Waters v. Bailey, 218. 
 
 V.Wood, 44. 
 
 Watkins, ex parte, 612. 
 
 V. Cheek, 434, 435, 456, 458. 
 
 Watson, ex parte, 361, 772. 
 
 V. Hayes, 183. 
 
 y. Hinsworth Hospital, 507. 
 
 V. Earl of Lincoln, 195. 
 
 V. Marshall, 370. 
 
 V. Pearson, 258, 300. 
 
 V. Toone, 460, 465, 466, 471. 
 
 Watts's settlement, in re, 574, 885, 896. 
 
 V. Ball, 621, 625. 
 
 V. Bullas, 99. 
 
 V. Cresswell, 39. 
 
 V. Girdlestone, 338, 341, 356, 418. 
 
 V. Hyde, 472. 
 
 V. Jeffereyes, 671. 
 
 V. Kancie, 454, 455. 
 
 V. Porter, 280, 671. 
 
 V. Turner, 595. 
 
 Waugh's Trust, in re, 883, 906. 
 Way V. East, 132. 
 
 Weale v. Olive, 84. 
 
 Weatherby v. St. Giorgio, 430. 
 
 Weaver v. Maule, 283, 284. 
 
 Webb V. Ledsam, 305. 
 
 V. Lugar, 218. 
 
 V. Rorke, 470. 
 
 V. Earl of Shaftesbury, 142, 318, 
 
 544, 559, 582, 723. 
 
 V. Webb, 118, 857. 
 
 V. Wools, 168, 171. 
 
 Wedderburn v. Wedderburn, 319, 729, 
 730, 777, 778. 
 
 Wedgwood v. Adams, 424. 
 
 Weiss V. Dill, 557. 
 
 Weld V. Bonham, 851. 
 
 V. Tew, 827. 
 
 Welford v. Liddle, 734. 
 
 Wellesley v. Wellesley, 174. 
 
 West V. Ayles, 834. 
 
 V. Errissey, 148, 149, 727. 
 
 V. Steward, 474. 
 
 Westby v. Westby, 670. 
 
 Westbrook, in re, 546, 556. 
 
 V. Blythe, 668, 672. 
 
 Westcott V. CuUiford, 368. 
 
 Western v. Cartwright, 734. 
 
 Westley v. Clarke, 304, 305, 310, 317. 
 
 Weston V. Filer, 893, 903. 
 
 Westover v. Chapman, 338. 363. 
 
 Wetherell v. Collins, 842. 
 
 V. Hall, 593. 
 
 V. Langston, 237. 
 
 V. Wilson, 596. 
 
 West Ham Charities, in re, 782. 
 Whale V. Booth, 278, 455, 456, 457. 
 Whalley v. Whalley, 734, 
 Whateley v. Kemp, 148. 
 Whatton v. Toone, 4G0, 734. 
 Wheate v. Hall, 164. 
 
 Wheatley v. Purr, 81. 
 Wheeler, in re, 883. 
 Wheelwright v. Jackson, 480. 
 Wheldale v. Partridge, 793, 799, 804, 
 
 806, 824. 
 Whelpdale v. Cookson, 461, 464, 466, 
 
 473. 
 Whetstone (Lady) v. Bury, 678. 
 Whitchcotev. Lawrence, 461, 463, 469, 
 
 470,471,738. 
 Whinchcombe v. PuUeston, 136. 
 Whish, ex parte, 715. 
 Whistler v. Newman, 634, 640, 775, 875. 
 
 V. Webb, 842. 
 
 Whiston V. Dean and Chapter of Ro- 
 chester, 493. 
 Whitacre, ex parte, 264. 
 Whitaker v. Wisby, 28. 
 Whitcomb v. Minchin, 462. 
 White v. Barton, 241, 868. 
 
 V. Baj-lor, 283, 693. 
 
 V. Briggs, 168, 169, 170, 171. 
 
 V. Carter, 155. 
 
 V. Cuddon, 415. 
 
 V. Evans, 59, 69, 182. 
 
 V. Ewer, 731. 
 
 V. Foljambe, 421, 425. 
 
 V. Lincoln, 337, 599. 
 
 V. Nutts, 175. 
 
 V. Parker, 247, 248. 
 
 V. Tommy, 465. 
 
 V. White, 383, 384, 395, 396, 397, 
 
 398, 399, 402, 706, 713, 774. 
 
 V. Williams, 59. 
 
 Whitecomb v. Jacob, 756, 757. 
 
 Whitfield V. Brand, 278. 
 
 V. Prickett, 135. 
 
 Whitley, ex parte, 713, 715, 716. 
 
 Whitmarsh v. Robertson, 865. 
 
 Whitmore v. Weld, 39. 
 
 AVhittingham's case, 36, 37. 
 
 Whittem v. Sawyer, 369. 
 
 Whittle V. Halliday, 848. 
 
 V. Henning, §72. 
 
 Whitton, ex parte, 836. 
 
 V. Lloyd, 488. 
 
 Whitwich V. Jermin, 796. 
 
 Whitworth v. Gaugain, 280, 672. 
 
 Wichfield v. Baker, 808. 
 
 Widdowson v. Duck, 343, 524. 
 
 Widmore v. Woodroffe, 699. 
 
 Wigg V. Wigg, 173, 725. 
 
 Wlghtman v. Townroe, 272. 
 
 Wiglesworth v. Wiglesworth, 357, 867. 
 
 Wike's case, 30, 260, 280, 629, 677. 
 
 Wileocks v. Hannygton, 83. 
 
 Wild V. Wells, 755. 
 
 Wildes V. Davies, 119. 
 
 Wilding V. Bolder, 40, 579. 
 
 V. Richards, 481, 482, 483. 
 
 Wiles V. Cooper, 858. 
 
 V. Gresham, 326, 340, 521, 756. 
 
 Wilkes V. Steward, 337, 338. 
 
 Wilkins v. Fry, 423, 426.
 
 TABLE OF CASES. 
 
 Isxvii 
 
 Wilkins v. Hunt, 873, 
 
 V. Stevens, 205. 
 
 Wilkinson, ex parte, 243, 715. 
 
 V. Brayfield, 178. 
 
 V. Malin, 298, 299, 501. 
 
 V. Parry, 565, 577, 774, 777, 847. 
 
 Wilks V. Groom, 885. 
 
 V. Wilkinson, 131, 135, 139, 556, 
 
 559. 
 Willan V. Lancaster, 617. 
 Willand v. Fenn, 316. 
 Willats V. Busby, 93, 849, 850. 
 Willet V. Sandford, 8. 
 Willett V. Blandford, 319. 
 Williams' estate, in re, 881. 
 
 in re, 836. 
 
 V. Bird, 715. 
 
 V. Carter, 167. 
 
 V. Coade, 182, 183. 
 
 v. Corbet, 101. 
 
 V. Kershaw, 182. 
 
 V. Lomas, 768. 
 
 V. Lord Lonsdale, 324. 
 
 V. Nixon, 240, 299, 310, 315, 316, 
 
 317, 318. 
 
 V. Powell, 363, 364. 
 
 T. Waters, 248. 
 
 V. Williams, 169, 173. 
 
 Williamson v. Codrington, 93, 94. 
 
 V. Curtis, 435. 
 
 V. Park, 659. 
 
 V. Williamson, 93. 
 
 Willis v. Childe, 543. 
 
 T. Hiscox, 595, 878. 
 
 V. Kibble, 551. 
 
 V. Willis, 200, 204, 205. 
 
 Wilmot V. Pike, 608. 
 Willmott V. Jenkins, 243. 
 Willoughby v. Willoughby, 131, 725. 
 Wills V. Savers, 121, 122. 
 Wilson, in re, 836. 
 
 V. Beddard, 805. 
 
 V. Bennett, 265, 267, 533. 
 
 V. Bronghton. 845. 
 
 V. Clapbam, 174. 
 
 V. Day, 476, 477, 480. 
 
 V. Dennison, 297. 
 
 V. Dent, 45, 63, 616. 
 
 V. Fielding, 686. 
 
 V. Foreman, 756. 
 
 V. Goodman, 768. 
 
 V. Heaton, 564. 
 
 V. Hoare, 272. 
 
 V. Knubley, 239. 
 
 V. Major, 169, 171, 183, 187. 
 
 V. Moore, 729, 767. 
 
 V. Oldham, 371. 
 
 V. Wilson, 113, 875. 
 
 Wilton V. Hill, 865. 
 
 V. Jones, 842, 853. 
 
 Wiltshire v. Rabbits, 608. 
 Winch V. Brutton, 171. 
 
 V. Keeley, 274, 275. 
 
 Winchelsea v'. Norcliffe, 829, 830. 
 
 January, 1857. — 6 
 
 Winchester (Bishop of) v. Knight, 753. 
 
 Winged v. Lefebury, 725. 
 
 Winn v. Fenwick, 705. 
 
 Winnall, exparte, 291. 
 
 Winnington v. Foley, 409. 
 
 Winslow V. Tighe, 218, 223. 
 
 Winter, ex parte, 838. 
 
 V. Rudge, 572. 
 
 Wise, in re, 882. 
 
 V. Wise, 233, 609. 
 
 Wiseman v. Roper, 94. 
 Witham's case, 5, 9. 
 Withers v. Allgood, 142. 
 
 T. Withers, 60, 199, 202. 
 
 Withington v. Withington, 574. 
 Withey v. Mangles, 707. 
 Witter V. Witter, 19, 829. 
 Witts V. Bodington, 
 
 V. Dawkins, 123. 
 
 AYivelescom case, 495. 
 Wolestoncroft v. Long, 487, 488. 
 Wood V. Betlestone, 894, 898. 
 
 V. Cox, 168. 
 
 V. Dixie, 475. 
 
 V. Downes, 473, 867. , 
 
 V. Hardisty, 238. 
 
 V. Harman, 434, 523. 
 
 V. Nosworthy, 18. 
 
 V. Richardson, 415. 
 
 V. Stane, 710. 
 
 V. White, 441, 532, 844. 
 
 V. Williams, 842. 
 
 V. Woods, 857. 
 
 Wood's Trust, in re, 377. 
 Woodcock V. Renneck, 700, 704. 
 Woodhead v. Marriott, 358, 879. 
 Woodin, ex parte, 226, 562. 
 Woodhouse v. Hoskins, 144, 404, 408, 
 
 409, 410. 
 Woodman v. Horslev, 122. 
 V. Morrel, 178."200, 207, 214, 215, 
 
 216. 
 Woodmeston v. Walker, 124. 
 Woods V. Woods, 169, 596, 857. 
 Woodyat v. Greslev, 771. 
 Woollet V. Harris, ^80, 181. 
 Woolmore v. Burrows, 154, 156, 157, 
 
 164, 404. 
 Woolnough V. Woolnough, 603. 
 Worley v. Frampton, 425. 
 Worrall v. Harford, 101, 317, 557, 561. 
 Worsley V. Deraattos, 476, 477, 478, 480. 
 Wortham v. Pemberton, 629, 632. 
 Worthington v. Evans, 533. 
 Wrangham, exparte, 495. 
 Way v. Smith, 815. 
 Wray v. Steele, 200, 201. 
 Wren v. Kirton, 295, 296, 333. 
 Wright V. Atkyns, 168, 169, 170, 173. 
 
 V. Hall, 195. 
 
 Wright V. Maunder, 422. 
 
 V. Newport Pond School, 506, 508. 
 
 V. Pearson, 141, 142, 145, 247, 251, 
 
 256.
 
 Ixxviii 
 
 LEW IX OX THE LAW OF TRUSTS, ETC. 
 
 Wright V. Rose, 808. 
 
 V. Row, 193, 194. 
 
 V. Snowe, 39. 
 
 V. Wright, 183, 184. 
 
 Wright's settlement, in re, 376. 
 
 will, m 7-e, 377. 
 
 Wrigley v. Sylies, 441, 445, 446, 447. 
 Wyatt V. Sharratt, 349, 867, 869. 
 Wynch v. East India Company, 721, 
 734. 
 
 V. Packington, 177, 179, 180. 
 
 Wyche, m re, 550. 
 Wykham v. Wykhnm, 253, 604. 
 Wynch v. Grant, 239. 
 Wynne v. Hawkins, 169, 171. 
 
 V. Styan, 733. 
 
 Wynter v. Bold, 420. 
 
 Yallop, ex parte, 203. 
 
 V. Holworthy, 735. 
 
 Yarnold v. Moorbouse, 135, 
 
 Yates V. Hambly, 842. 
 
 Yervel (Poor of) v. Sutton, 506, 507, 
 
 508. 
 York V. Brown, 320, 549, 874. 
 York Buildings Company v. Mackenzie, 
 466, 467, 471. 
 
 V. Eaton, 201, 202. 
 
 Young r. Dennet, 488. 
 
 V. Grove, 182. 
 
 — V. Martin, 172. 
 
 V. Peachy, 177, 178. 
 
 V. Scott, 857. 
 
 V. Waterpark, 729, 747. 748. 
 
 Younge v. Combe, 359, 361. 
 Younger v. Welham, 298. 
 Younghusband v. Gisborne, 134, 598, 
 
 656. 
 
 Zinck V. Walker, 275. 
 Zoach V. Lloyd, 830. 
 Zouch T. Parsons, 36, 37, 38.
 
 TABLE or STATUTES CITED. 
 
 The pages referred to are those between brackets [ 
 
 ]• 
 
 EDWARD I. 
 
 11, (Statute Merchant), 21S. 
 13, St. 1, c. 1, (De Bonis), 601. 
 St. 1, c. 18, (Elegit), 278. 
 St. 1, c. 39, (Levari Facias), 647. 
 St. 3, (Statute Merchant), 278. 
 EDWARD II. 
 9, St. 2, (Sheriffs), 269. 
 
 EDWARD III. 
 27, St. 2, c. 9, (Statute Staple), 278. 
 
 RICHARD II. 
 15, c. 5, (Mortmain), 43. 
 HENRY VI. 
 8, c. 7, (Right of voting for Members 
 of Parliament), 270. 
 RICHARD III. 
 1, c. 1, [Cestui que Use empowered to 
 pass Legal Estate), 5, 601. 
 HENRY VII. 
 4, c. 24, (Fines), 601. 
 19, c. 15, (Execution against Uses), 10. 
 
 HENRY Vin. 
 21, c. 4, (Sales by Executors), 532. 
 
 26, c. 13, (Forfeiture), 9, 28, 674. 
 
 27, c. 10, (Statute of Uses), 7, 10. 
 33, c. 20, (Forfeiture), 674, 675, 676. 
 
 ELIZABETH. 
 13, c. 4, (Extents), 673. 
 
 c. 5, (Creditors), 93, 475, 476. 
 27, c. 4, (Purchasers), 92, 93. 
 43, c. 4, (Charitable Uses), 779. 
 
 CHARLES II. 
 22&23, c. 25, (Game Act), 593. 
 29, c. 3, s. 5, (Devises of Land,) 65. 
 
 s. 7, (Creations of Trust of 
 
 Land), 60. 
 s. 8, (Exception of Implied 
 
 Trusts), 204, 228, 762. 
 s. 9, (Assignments of Trusts), 
 
 600. 
 s. 10, (Judgments against ces- 
 tui que trust), 664, 690. 
 s. 12, (Estates pur autre vie), 
 202. 
 
 4, 
 
 c. 
 
 6, 
 
 c. 
 
 ^, 
 
 c. 
 
 1, 
 
 St 
 
 4, 
 
 c. 
 
 8, 
 
 c. 
 
 9, 
 
 c. 
 
 L4, 
 
 c. 
 
 WILLIAM AND MARY. 
 
 3, c. 14, (Action against Devisee), 239, 
 
 689, 690. 
 
 4, c. 3, s. 10, (Bequests of Stock), 32. 
 
 5, c. 20, s. 20, (Bank of England), 32. 
 
 WILLIAM III. 
 7 & 8, c. 25, s. 7, (Right of voting for 
 Members of Parliament), 
 270. 
 
 ANNE. 
 16, s. 22, (Subpoena), 859. 
 35, (Yorkshire Registry), 596. 
 
 19, (Infant Trustees), 38, 832. 
 GEORGE I. 
 
 2, c. 19, (Bequests of Stock), 32. 
 
 GEORGE II. 
 10, (Lunatics, &c., Trustees of 
 
 Lands), 833. 
 6, (Yorkshire Registry), 596. 
 6, (Mortmain), 44, 79, 132. 
 
 20, s. 9, (Estates pur autre vie), 
 202. 
 
 18, s. 1, (Right of voting for 
 Members of Parliament), 
 271. 
 
 19, s. 49, (Bequests of stock), 32. 
 GEORGE III. 
 
 35, (Extents), 673. 
 
 90, (Lunatic, &c., Trustees of 
 
 Stock,) 833. 
 40, c. 36, (Bank of England), 33, 
 859. 
 
 c. 56, (Disentailing money- 
 land), 820, 821. 
 c. 88, s. 10, (Will of the So- 
 vereign), 25. 
 c. 98, (Thellusson Act), 112. 
 47, c. 74, (Traders' Lands, Assets), 273. 
 52, c. 101, (Romilly's Act), 718, 779. 
 54, c. 145, (Corrup'tiou of Blood), 28. 
 56, c. 91, (Charity Commissioners), 
 
 783. 
 58, c. 95, s. 2, (Right of voting for Co- 
 roners). 592. 
 
 18, c. 
 
 30, c. 
 
 25, c. 
 36, c. 
 
 39 &
 
 Ixsx 
 
 LEWIN ON THE LAW OF T K U S T S, ETC. 
 
 50, c. 81, (Charity Commissioners), V83. 
 GEORGE IV. 
 
 I & 2, c. 19, (Lunatic Trustees), 834. 
 
 6, c. 74, (Trustee Act), 834. 
 
 c. 16, (Bankruptcy Act), 479, 557. 
 
 7, c. 57, (Sales under Insolvent Debt- 
 
 ors' Act), 422. 
 WILLIAM IV. 
 
 II G. 4, & 1 W. 4, c. 40, (Executor Trus- 
 
 tee for next of kin), 59, 325. 
 
 c. 47, (Action against Devisee, As- 
 sets), 239, 273, 474. 
 
 c. 60, (Lord St. Leonards' Trustee 
 Act), 713, 834, 835, 836, 
 837, 838, 839. 
 
 1, c. 60, s. 23, (Charities), 716. 
 1 & 2, c. 32, (Game Act), 593. 
 
 2, c. 45, s. 23, (Reform Act, Right of 
 
 Voting), 271. 
 c. 57, (Charities), 716. 
 3 & 4, c. 27, (Limitation of Actions 
 
 and Suits), 288, 484, 722, 
 
 743, 744, 745, 786. 
 c. 74, (Fines and Recoveries), 
 
 16, 148, 156, 157, 236, 237, 
 
 411, 472, 604, 817, 822. 
 c. 104, (Assets), 273, 285, 435, 
 
 474,688, 691, 692, 796. 
 c. 105, (Dower), 621, 626, 794. 
 c. 106, (Inheritance), 187, 618, 
 
 680. 
 
 4 & 5, c. 23 (Escheat), 836. 
 
 c. 29 (Lynch's Act), 347, 348. 
 c. 92, (Fines and Recoveries, 
 Irish), 236. 
 
 5 & 6, c. 76, (Municipal Corporation 
 
 Act), 25, 31, 716, 717. 
 VICTORIA. 
 1, c. 2G, (Wills), 33, 45, 60, 65, 80, 
 118, 195,203,249, 259,617, 
 825, 831. 
 
 1 & 2, c. 110, (Insolvency, Judgments), 
 
 29, 136, 278, 350, 476, 658. 
 
 2 & 3, c. 11, (Judgments), 669. 
 
 3 & 4, c. 77, (Grammar-school Act), 
 
 500. 
 
 3 & 4, c. 82, (Judgments), 670. 
 5, c. 5, (Abolition of Equity Exche- 
 quer Jurisdiction), 859. 
 
 5 & 6, c. 116, (Insolvent Act), 278. 
 
 6 & 7, c. 18, s. 74, (Right of Voting), 
 
 271, 593. 
 c. 73, (Solicitors' Act), 561. 
 
 7 & 8, c. 45, s. 2, (Dissenters' Reli- 
 
 gious Property Limitation 
 Act), 497. 
 
 c. 66, (Aliens), 39, 43. 
 
 c. 76, (Real Property Amend- 
 ment Act, now repealed), 156, 
 236, 412. 
 
 c. 92, (Right of voting for Coro- 
 ners), 593. 
 
 c. 96, (Insolvency), 278. 
 
 8 & 9, c. 16, s. 20, (Companies' Clauses 
 
 Act), 859. 
 c. 106, (Real Property Amend- 
 ment Act), 412, 424, 600, 
 817. 
 10 & 11, c. 96, (Trustee Relief Act), 
 375, et seq., 785. 
 
 12 & 13, c. 106, (Bankrupt Law Conso- 
 
 lidation Act), 29, 273, 277, 
 287, 477,479, 714. 
 
 13 & 14, c. 35, (Sir G. Turner's Act), 
 
 368. 
 c. 60, (Trustee Act, 1850), 283, 
 286, 714, 840, 847. 
 
 14 & 15, c. 83, (Court of Appeal in 
 
 Chancery), 714. 
 
 15 & 16, c. 86, (Chancery Amendment 
 
 Act), 854, 860, 866. 
 
 16 & 17, c. 137, (Charitable Trusts Act, 
 
 1853), 499, 717, 718, 184, et 
 seq. 
 
 18 & 19, c. 15, (Judgments), 657, 669. 
 
 c. 124, (Charitable Trusts' 
 Amendment Act, 1855), 382, 
 504, 511, 785, 786. 
 
 19 & 20, c. 50, (Sale of Parish Advow- 
 
 sons), 107. 
 c. 94, (Uniform Administra- 
 tion of Estates), 797.
 
 INTRODUCTORY VIEW 
 
 OF THE 
 
 RISE AND PROGRESS OF TRUSTS. 
 
 The origin of trusts, or rather the adaptation of them to the English 
 law, may be traced to the ingenuity of fraud. By the interposition of a 
 trustee the debtor thought to withdraw his property out of the reach of 
 his creditor, the freeholder to intercept the fruits of tenure from the lord 
 of whom the lands were held, and the body ecclesiastic to evade the 
 restrictions directed against the growing wealth of the church by the 
 statutes of mortmain. Another inducement to the adoption of the new 
 system was the natural anxiety of mankind to acquire that free power of 
 alienation and settlement of their estates, which, by the narrow policy of 
 the common law, they had hitherto been prevented from exercising. 
 
 Originally, the only pledge for the due execution of the trust was the 
 faith and integrity of the trustee ; but the mere feeling of honour proving, 
 as was likely, when opposed to self-interest, an extremely precarious secu- 
 rity, John Waltham, Bishop of Salisbury, a chancellor in the reign of 
 Richard the Second, originated the writ of subjxxna, by which the trustee 
 was liable to be summoned *into Chancery, and compellable to r- ^9 -i 
 answer upon oath the allegations of his cestui que trust. No L "" J 
 sooner was this protection extended, than half the lands in the kingdom 
 became vested in feoffees to uses. Thus, in the words of an old coun- 
 sellor, the Parents of the trust were Fraud and Fear, and a Court of Con- 
 science was the Nurse. (a) 
 
 Of trusts there were two kinds : the simple trust, and the special trust. 
 The simple trust, which also passed by the name of a use, was defined in 
 legal phraseology to be, " a confidence, not issuing out of the land, but 
 as a thing collateral, annexed in privity to the estate of the land, and to 
 the person touching the land, scilicet, that cestui que use should take the 
 pi'ofit, and that the terre-tenant should execute an estate as he should 
 direct."(t) In order rightly to understand what was meant by this rather 
 technical description, we shall briefly consider the principles that were 
 
 (a) Attorney-Geueral v. Sands. Hard. 491. (6) Co. Lit. 272, b.
 
 g2 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 recognized by courts of equity (for these had the exclusive jurisdiction 
 of trusts,) first, with reference to the terre-tenant or feoffee to uses, and 
 secondly, with reference to the beneficial proprietor, or cestui que use. 
 
 With respect to the feoffee to uses, it was held to be absolutely indis- 
 pensable that there should be confidence in the person, and privity of 
 estate. For want of the requisite of pergonal confidence it was ruled that 
 a corporation could not stand seised to a use ; for how, it was said, could 
 a corporation be capable of confidence when it had not a soul ? Nor was 
 it competent for the king to sustain the character of trustee ; for it was 
 thought inconsistent with his high prerogative that he should be made 
 responsible to his own subject for the due administration of the estate. 
 ^^o-\ *And originally the subpoena lay against the trustee himself only, 
 L -I and could not have been sued against either his heir or assign j for 
 the confidence was declared to be personal, and not to accompany the 
 devolution of the property.(c) But the doctrine of the court in this 
 respect was subsequently put on a more liberal footing, and it came to be 
 held that both heir and assign should be liable to the execution of the use. 
 An exception however was still made in favour of a purchaser for valuable 
 consideration not affected by notice. (f/) 
 
 The meaning of privity of estate may be best illustrated by an example. 
 Had a feoffment been made to A. for life to his own use, with remainder 
 to B. in fee to the use of C, and then A. had enfeoffed D. in fee, in this 
 case, though D. had the land, yet, as he did not take the identical estate 
 in the land to which the use in favour of C. was attached, he was not 
 bound by C.'s equitable claim. And, by the same rule, neither tenant 
 by the curtesy, nor tenant in dower, nor tennnth j elegit, was liable to the 
 execution of the use, for their interests were new and original estates, 
 and could not be said to have been impressed with the use. So the lord 
 who was 171 by escheat, a disseisor, abator, and intruder, were not ame- 
 nable to the subpoena ; for the first claimed by title paramount to the 
 creation of the use ; and the three last were seised of a tortious estate, 
 and held adversely to the feoffee to uses. 
 
 With respect to the cestui que use, the principle upon which his whole 
 estate depended was also what in legal language was denominated privity. 
 Thus, on the death of the original cestui que use, the right to sue the sub- 
 r*4.T P'^^^'^ was held to descend indeed to the heir on the ground of 
 •- -■ *ha'rcs eadem persona cum antecessore ; but the wife of the cestui 
 que use, or the husband of a feme cestiii que use, and a judgment credi- 
 tor, were not admitted to the same privilege ; for their respective claims 
 were founded not on privity with the person of the cestui que use, but on 
 the course and operation of law. And for the like reason a use was not 
 assets, was not subject to forfeiture, and on failure of heirs in the inheri- 
 table line did not escheat to the lord. And as a use was regarded in the 
 light of a chose in action, that is, a mere right to enforce a claim against 
 another in a court of equity, the use was held not to be assignable. (e) 
 
 The special trust (for hitherto we have spoken of the simple trust or 
 use only) was where the conveyance to the trustee was to answer some 
 
 (c) 8 E. 4, G ; 22 E. 4, 6. (d) Keilway, 42, b. 
 
 (e) Finch s case. 4 Inst. 85.
 
 INTRODUCTION. §3 
 
 particular and spocific purpose, as upon trust to reconvey in order to 
 change the line of descent, upon trust to sell for payment of debts, &c. 
 In the special trust the duty of the trustee was not, as in the use, of a 
 mere passive description, but imposed upon him the obligation of exert- 
 ing himself in some active character for the accomplishment of the object 
 for which the trust was created. In ease the trustee neglected his duty, 
 the cestui que trust was entitled to file a bill in chancery, and compel him 
 to proceed in the execution of his oflBice.(/) 
 
 Both the use and the special trust were applicable to chattels real and 
 personal, as well as to freeholds ; but trusts of chattels were for obvious 
 reasons much less frequently in practice. The amount of the property 
 was small ; the owner, even without the interposition of a trustee, had 
 the fullest control and dominion over it ; and a chattel interest, p^--i 
 *as it followed the person, was equally subject to forfeiture whether L -I 
 in the custody of a trustee, or in the hands of the beneficial proprietor. ((7^ 
 But to the extent, whatever it was, to which trusts of chattels were 
 adopted, they were conducted upon the same principles, mutatis mutan- 
 dis, as were trusts of freeholds ; the right to sue a suhpoeyia turned equally 
 on privity, (^) and the interest of the cestui que trust was held not to be 
 assignable. /ii 
 
 Such was the nature of trusts as they stood at common laiv ; but the 
 manifold frauds and mischiefs to which the new system gave occasion, 
 particularly «< the great unsurety and trouble arising thereby to pur- 
 chasers," called loudly from time to time for the enactment of remedial 
 statutes. One of the most important of these was the 1 Hie. 3, c. 1, the 
 substance of which may be well expressed in the terms of the preamble, 
 viz., that " all acts made by or against a cestui que xise should be good 
 as against him, his heirs, and feofi'ees in trust," in other words, that all 
 dealings of the cestui que use with the trust property should have pre- 
 cisely the same legal operation, as if the cestui que use had himself pos- 
 sessed the legal ownership. To what interests the legislature intended 
 this statute to apply has not on all hands been agreed. A feoftment in 
 fee to uses was clearly the case primarily intended. Upon a feofi'ment 
 in tail, it seems no use could have been declared, for a tenant in tail 
 was incapacitated by the statute de donis from executing estates. (/.;) 
 With respect to a feoifment for life to uses, there appears to be no rea- 
 son upon principle (except so far as the language of the act may be 
 thought to furnish any inference,) and certainly there is no objection on 
 the *score of authority, why the cestui que use might not have p^p-i 
 passed the legal estate by virtue of the statutory power. It has L J 
 been contended by Mr. Sanders, that on a feofi'ment for life no use could 
 have been declared, on the ground that, as the tenant for life held of 
 the reversioner, the consideration of tenure would have conferred a title 
 to the beneficial interest on the tenant for life himself. But this rea- 
 soning can have no application where the estate for life was not created, 
 
 (/) See the case in the reigu of Hen. 7, Append, to Treat, of Powers, No. 1. 
 (g) 5 H. 5, 3, 6. (A) Witham's case, 4 Inst. 87. 
 
 («■) Jenk. 244, c. 30. {k) Co. Lit. 19, b. 
 
 (/) Sand, on Uses, c. 1, s. 6, div. 2.
 
 84 LEVIN ON THE LAW OF TRUSTS, ETC. 
 
 but was merely transferred, for then the assignment of the life estate 
 was not distinguishable in this respect from a conveyance of the fee ; in 
 each case there was no consideration of tenure as between the grantor 
 and grantee, but in each case the services incident to tenure were due 
 from the grantee to a third person. (1) It is clear that the statute 
 embraced uses of lands only, and did not extend either to sj^cQial trusts, 
 or to trusts of chattels : not to special trusts, because the trustee com- 
 bined in himself both the legal estate and the use, though compellable 
 in chancery to direct them to a particular purpose ; and not to trusts of 
 chattels, because the preamble and the statute were addressed to cestui 
 que use and his heirs, and to feoffees in trust. 
 
 P^„-, *The mischiefs of the system increasing more and more, (the 
 L ' J statute of Kichard occasioning still greater evils than it remedied, 
 from the facility it gave to the cestui que use and his feoffee, who had 
 now each the power of passing the legal estate, of defrauding by collusion 
 the honafide purchaser,) the legislature again interposed its authority 
 by the 27 Hen. 8, c. 10, and thereby annihilated uses as regarded their 
 fiduciary character, by enacting, that " where any person stood seised of 
 any hereditaments to the use, confidence, or trust of any other person, 
 or of any body politic, such person or body politic as had any such use, 
 confidence, or trust, should be deemed in lawful seisin of the heredita- 
 ments in such like estates as they had in use, trust, or confidence. "(2) 
 
 Vses by the operation of this statute became merged in the legal 
 estate ; but special trusts and tj'usts of chattels were not within the pur- 
 view of the act : the former, because the use, as well as the legal interest, 
 
 (1) The state of the law upon this subject appears to have been as follows : — 
 
 1. On the creation of an estate for life, had no use been mentioned on the face of 
 the instrument, the tenant for life had held for his own benefit in compensation of 
 his services ; Perk. s. 535 ; B. N. C. 60 ; Br. FefF. al. Uses, 10 ; and no use could 
 have been averred in contradiction to the use implied. See Gilb. on Uses, 57. 
 
 2. Had a use been expressly declared by the deed, the tenant had been bound by 
 the terms on which he accepted the estate; Perk. s. 537; Br. Feff. al. Uses, 
 
 10, 40. 3. Unless a rent had been reserved, or consideration paid, in which case 
 a court of equity would not have enforced the use against the purchaser for 
 valuable consideration; B.N. C. 60; Br. FeflF. al. Uses, 40. 4. On the assignment 
 of a life estate a use might have been declared, as on a conveyance in fee. 
 
 (2) As this statute does operate on the use of a life estate, but does not apply 
 to a seisin in tail, the doctrine of Mr. Sanders, that prior to the 27 Hen. 8, there 
 was no use of a seisin either in tail or for life, seems open to the following objec- 
 tions : — 1. That the statute in executing the use of a life estate, operates on an 
 interest which at the time of the enactment had no existence ; and, 2ndly, That 
 in not executing a use declared on a seisin in tail, it operates differently on two 
 estates that fall within precisely the same principle. To meet the former objec- 
 tion, Mr. Sanders holds the statute of Hen. 8, to be prospective, and distinguishes 
 it from the statute of Richard, which he considers not to be prospective, by ob- 
 serving that the latter employs the word " use" only, while the former has the 
 additional term of "trust ;" but to this it may be answered, that although the sta- 
 tute oi Richard does not contain the word trust, the preamhle does, and that the 
 distinction contended for between use and trust had no existence until a compa- 
 tively recent period. See Altham v. Anglesey, Gilb. Eq. Rep. 17. To obviate the 
 latter objection, it is maintained by Mr. Sanders that tenant in tail is within the 
 statute of Hen. 8 ; an opinion which, it is submitted, is directly opposed to the 
 general stream of authority. Co. Lit. 19, b.; Shep. Touch. 509; Gilb. on Uses, 
 
 11, and Sir E. Sugden's note, ibid.
 
 INTRODUCTION. 85 
 
 was in the trustee ; the latter, because a termor is said to be possessed, 
 and not to be seised of the property. 
 
 *In the room of uses which were thus destroyed as they arose, r;i,Q-| 
 the judges by their construction of the statute created a novel L J 
 kind of interest, since distinguished by the name of Trust. Before the 
 statute of Hen. 8, a person, to have had the complete ownership, must 
 have united the possession of the land and the use of the profits. The 
 possession and the use were even at common law recognised as distinct 
 interests, though the cestui que use was left to chancery for his remedy. («i) 
 On a feoffment to A. to the use of B. to the use of C, the possession 
 was in A., the use in B., and the limitation over to C. was disregarded 
 as surplusage. When the statute of Hen. 8, was passed, it executed the 
 estate in B. by annexing the possession to the use ; but having thus 
 hecome functtis officio it did not, as the act was construed, affect the use 
 over to C. Howevei", chancery, now that uses were converted into 
 estates, decreed C. to have a title in equity, and enforced the execution 
 of it under the name of a trust, (n) 
 
 " Interests in land," said Lord Hardwicke, " thus became of three 
 kinds : first, the estate in the land itself, the ancient common-law fee ; 
 secondly, the use which was originally a creature of equity, but since the 
 statute of uses it drew the estate in the land to it, so that they were 
 joined and made one legal estate; and, thirdly, the trtist, of which the 
 common law takes no notice, but which carries the beneficial interest 
 and profits in a court of equity, and is still a creature of that court, as 
 the use was before the statute. "(o) 
 
 This newly-created interest was held to be so perfectly ^distinct r^^-, 
 from the ancient use, that the statutory provisions, by which many L J 
 of the mischiefs of uses had been remedied, as the 19 Hen. 7, c. 15, by 
 which uses had been made liable to writs of execution, and the 26 Hen. 
 8, c. 13, by which they had become forfeitable to the crown for treason, 
 were decided to have no application. (1) However, the trust took the 
 likeness of the use, conforming itself to the nature of special trusts and 
 trusts of chattels, which had never been disturbed by any legislative 
 enactment. 
 
 To show how the principles of uses prevailed after the statute of Hen. 
 8, it was held in the reign of Elizabeth, (p) that the equitable term of a 
 feme covert did not vest in the husband by survivorship, for a trust, it 
 was said, was a thing in privity, and in nature of an action, and no remedy 
 for it but by writ of sulpoena. And a few years after in the same reign 
 
 {m) Lit. s. 462, 4G3; Co. Lit. 272, b ; and see Carter, 197; Porey v. Juxon. 
 Nels. 135; Megod's case, Godb. 64. 
 
 in) See Hopkins v. Hopkins, 1 Atk. 591. 
 
 (0) Willet V. Sandford, 1 Ves. 186 ; Coryton v. Helyar, 2 Cox, 342. 
 
 {p) Witham's case, 4 Inst. 87 ; S. C. Popham, 106, sub nomine Johnson's case. 
 
 (1) As the statutes relating to uses have never been repealed, but are merely 
 inoperative from the want of any subject-matter, the question suggests itself whe- 
 ther they be not still applicable to a use created by a bargain and sale not by in- 
 denture, or by indenture not duly enrolled; for as the 27 Hen. 8, c. 10, is pre- 
 vented from transferring the possession, the old common-law use seems in this case 
 to survive. See Shep. Touch. 508.
 
 S6 LEWIX ON THE LAW OF TRUSTS, ETC. 
 
 it was resolved by all tlie judges that a trust was a matter of privity and 
 in nature of a cliose in action, and therefore was not assignable. (5) And 
 in the sixth year of King Charles the First it was decided by the judges, 
 that as a feme was dowable by act or rule of law, and a Court of Equity 
 had no jurisdiction where there was not fraud or covin, the widow of a 
 trustee was entitled beneficially to her dower out of the trust estate. (r) 
 _j^ „ -, But during the reigns of Charles the First and Charles *the 
 t J Second, and particularly during the chancellorship of Lord Not- 
 tingham, who, from the sound and comprehensive principles upon which 
 he administered trusts, has been styled the father of equity,(s) the courts 
 gradually threw off the fetters of uses, and disregarding the operation of 
 mere technical rules, proceeded to establish trusts upon the broad foun- 
 dation of conformity to the course of common law. " In my opinion," 
 said Lord Mansfield, '< trusts were not on a true foundation till Lord Not- 
 tingham held the great seal ; but by steadily pursuing from plain prin- 
 ciples trusts in all their consequences, and by some assistance from the 
 legislature, a noble, rational, and uniform system of law has since been 
 raised ; so that trusts are now made to answer the exigencies of families 
 and all purposes, without producing one inconvenience, fraud, or private 
 mischief, which the statute of Hen. 8, meant to avoid. "(^) 
 
 As to the changes that were successively introduced, it was held with 
 reference to the trustee, that actual confidence in the person was no longer 
 to be looked upon as essential. A body corporate therefore was not 
 exempted from the writ of subpoena on the ground of incapacity ;(») and 
 even the king, notwithstanding his high prerogative, was invested with 
 the character of a royal trustee,(ij) though the precise mode of enforcing 
 the trust against him was not exactly ascertained : to use the language 
 of Lord Northington, " the arms of equity were very short against the 
 r *n 1 pi'srogative.'Yw) The subtle distinctions which had ^formerly 
 L J attended the notion oi. privity of estate were also gradually dis- 
 carded. Thus it was laid down by Lord Hale, that tenant in dower 
 should be bound by a trust as claiming in the per by the assignment of 
 the heir ;(a:) and so it was afterwards determined by Lord Nottingham 5(3/) 
 and when an old case to the contrary was cited before Lord Jeffries, it 
 was unanimously declared both by the bench and the bar to be against 
 equity and the constant practice of the court. (2) A tenant by statute 
 merchant was held to be bound upon the same principle, for he took, it 
 was said, by the act of the party, and the remedy which the law gave 
 thereupon. (a) But as to tenant by the curtesy. Lord Hale gave his 
 
 {q) Sir Moyl Finch's case, 4 Inst. 86. 
 (r) Nash v. Preston, Cro. Car. 190. 
 
 (s) Philips V. Brydges, 3 Ves. 12T ; Kemp v. Kemp, 5 Yes. 858. 
 (0 Burgess v. Wheate, 1 Ed. 223. 
 
 (m) See Green v. Rutherworth, 1 Ves. 468 ; Attorney-General v. Whorwood, 1 
 Ves. 536. ' > J 
 
 {v) See Penn v. Lord Baltimore, 1 Ves. 453 ; Earl of Kildare v. Eustace, 1 Vern. 
 -29- {iv) Burgess v. Wheate, 1 Ed. 256. 
 
 {x) Pawlett T. Attorney-General, Hard. 469. {y) Noel v. Jevon,-Freem. 43. 
 
 {z) MS. note by an old hand in the copy of Croke's Reports in Lincoln's Inn 
 Library, Cro. Car. 191. 
 
 (a) Pawlett v. Attorney-General, Hard. 467, per Lord Hale.
 
 I X T R D U C T I N. 87 
 
 opinion, that one in the posi should not be liable to a trust without express 
 mention made hy the party xcho created it ; and therefore tenant by the 
 curtesy should not be bound :(6) but his lordship's authority on this 
 point was subsequently overruled, and curtesy as well as dower was made 
 to follow the general principle. 
 
 With respect to the cestui que trust, or the person entitled to the sub- 
 poena, the narrow doctrine contained under the technical expression of 
 privity began equally to be waived, or rather to be applied with conside- 
 rable latitude of construction. " The equitable interest," said Justice 
 Kolle, "is not a thing in action, but an inheritance or chattel, as the 
 case may fall out;"(c) and when once the trust, instead of passing as a 
 chose in action, came to be treated on the footing of an actual estate, it 
 soon drew to *it all the rights and incidents that accompanied p^-.,^.. 
 property at law; thus, the equity of the cestiii que trust, though L - J 
 a bare contingency or possibility.^cZ] was admitted to be assignable ;(e] 
 and Witham's case, that a husband who survived his wife could not, for 
 want of privity, claim her equitable chattel, was declared by the court to 
 be no longer an authority. (/) So a judgment creditor, it was held by 
 Lord Nottingham, might prosecute an equitable fieri facias ;{()^ and 
 though Lord Keeper Bridgman refused to allow an equitable elegit,{Ji^ it 
 is probable, had the question arisen before Lord Nottingham, his lord- 
 ship would in this, as in other cases, have acted on a more liberal prin- 
 ciple ; at all events, the creditor's right to relief in this respect has since 
 been established by the current of modern authority, (i) Again, a trust 
 was decided by Lord Nottingham to be assets in the hands of the heir ;(^-) 
 and though Lord Gruildford afterwards oveiTuled this decision, (?) yet Lord 
 Nottingham's view of the subject appears to have been eventually esta- 
 blished. (?h) Curtesy also was permitted of a trust estate, though the 
 widow of cestui que trust could never make good her title to dower ;(?ij 
 "not," said Lord Mansfield, "on reason or principle, but because wrong 
 determinations had misled in too many instances to be then setright;"(o) 
 or rather, as Lord Redesdale thought, because the admission of dower 
 would *have occasioned great inconvenience to purchasers — a r ^i:-! o -i 
 mischief that in the case of curtesy was not equally to be appro- L ' J 
 hended.(p ) 
 
 Lord Mansfield was for carrying the analogy of trusts to legal estates, 
 beyond the legitimate boundary. " A use or trust," he said, " was 
 heretofore understood to be merely as an agreement, by which the trus- 
 tee and all claiming from him in privity were personally liable to the 
 cestui que use, di\i(\. all claiming under him in like privity ; nobody in 
 
 {b) S. C. lb. 469. 
 
 (c) King V. Holland, Stvl. 21 ; see Casburne v. Casburne, 2 J. & W. 196. 
 \d) Warmstrey v. Taufield, 1 Ch. Re. 29 ; Lord Cornburj v. M:iddleton, 1 Cb: 
 Ca. 208 ; Goring v. Bickerstaff, 1 Ch. Ca. 8. 
 
 («) Courthope v. Hevman, Cart. 25, per Lord Bridgman. 
 
 (/) King V. Holland. Al. 15. 
 
 \g) Anon. case, cited Balsh v. Wastall, 1 P. W. 445; Pit v. Hunt, 2 Ch. Ca. 73. 
 
 (h) Pratt V. Colt. Freem. 139. (0 See infra. 
 
 (k) Gre3' v. Colville. 2 Ch. Re. 143. (/) Creed v. CovUe, 1 Vern. 172. 
 
 (m) See infra. ' («) Colt v. Colt, 1 Ch. Re. 254. 
 
 (o) Burgess v. Wheate. 1 Ed. 224. {f) See infra.
 
 8g LEWIN OX THE LAW OF T R T S T S, ETC. 
 
 the post was entitled under or bound by tbe agreement ; but now the 
 trust in this court is the same as the land, and the trustee is considered 
 merely as an instrument of conveyance." (?) And in the apphcation of 
 this principle his lordship argued, that the estate of the cestui que tritst 
 was subject to escheat, and that, on failure of heirs of the trustee, the 
 lord who took by escheat was bound by the trust. But to these propo- 
 sitions the courts of equity have never yet assented. The hmit to which 
 the analocry of trusts to legal estates ought properly to be allowed was 
 well enunciated by Lord Northington in the case of Burgess v. Wheate. 
 " It is true," he said, " this court has considered trusts as between the 
 trustee, cestui que trust, and those claiviing under them, as imitating 
 the possession ; but it would be a bold stride, and, in my opinion, a 
 dangerous conclusion, to say therefore this court has considered the crea- 
 tion^and instrument of trust as a mere nullity, and the estate in all re- 
 spects the same as if it still continued in the seisin of the creator of the 
 trust, or the person entitled to it: for my own part Ihnow no instance 
 where this court has perynitted the creation of the trust to affect the 
 bright of a third person ;"(r) that is, to illustrate the principle 
 [ ""^^ J by instances, a tenant by the curtesy, or in dower, or by elegit, as 
 claiming through the cestui (jue trust or trustee, though in the jwst, is 
 bound by and may take advantage of the trust ; but, according to Lord 
 Northington, the lord, who comes in by escheat is not in any sense a 
 privy to the trust, and therefore can neither reap a benefit from it on 
 failure of heirs of the cestui que trust, nor is bound by the equity on 
 failure of heirs of the trustee. (s) 
 
 [*1.5] CHAPTER L 
 
 DEFINITION OF A TRUST. 
 
 As the doctrines of trusts are equally applicable to real and 2>ersonal 
 estate, and the principles that govern the one will be found, mutatis 
 mutandis, to govern the other, we cannot better describe the nature of 
 a trust generally, than by adopting Lord Coke's definition of a use, the 
 term by which, before the Statute of Uses, a trust of lands was desig- 
 nated. (o) A trust, in the words applied to the use, may be said to be 
 " A confidence reposed in some other, not issuing out of the land, hut as 
 a thing collateral, annexed in privity to the estate of the land, and to 
 the person touching the land, for %chich cestui que trust has no remedij 
 but by subpoena in Chancery." (b'j 
 
 1. It is a confidence ; not necessarily a confidence expressly reposed by 
 
 (q) Burgess v. Wheate, 1 Ed. 226. (r) lb. 250, 251. 
 
 [s) It is clear that the lord cannot acquire an equitable interest by escheat ; 
 Burgess V. Wheate, I Ed. 177; Cox v. Parker, 2 Jur. N. S. 842; but whether a 
 lord taking the legal estate by escheat shall or not be bound by the trust, has 
 never been decided. See Evans v. Brown, 5 Beav. 114 ; Viscount Downe v. Mor- 
 ris, 3 Hare, 409. 
 
 (a) Burgess v. Wheate. 1 Ed. 248, per Lord Keeper Henley ; Lloyd v. Spillet, 2 
 Atk. 150, per Lord Harkwicke. ' (6) Co. Lit. 272, b.
 
 DEFINITION OF A TRUST. 89 
 
 one party in anotlier, for it may be raised by implication of law : and the 
 trustee of the estate need not be actually capable of confidence, for the 
 capacity itself may be supplied by legal fiction, as where the administra- 
 tion of the trust is committed to a body corporate ; but a trust is a con- 
 fidence, as distinguished from^^s in re andy»s ad rem, for it is neither 
 a legal property, nor a legal right to property.(c) 
 
 2. It is a confidence reposed in some other ; not in some other than 
 the author of the trust, for a person may convert himself into a trustee, 
 but in some other than cestui que trust ; for as a man cannot sue a sub- 
 poena against himself, he cannot be said to hold upon trust for himself. ((/) 
 If the legal and *equitable interests happen to meet in the same r »:-i p -i 
 person, the equitable is for ever absorbed in the legal ; as if A. be L -■ 
 seised of the legal inheritance ex parte paterna, and of the equitable ex 
 parte materna, upon the death of A. the heir of the maternal line has no 
 equity against the heir of the paternal. (e) And the same rule prevails 
 as to leaseholds for lives. (/) If, for instance, the legal estate in a free- 
 hold lease be vested in a husband and his heirs, in trust for the wife and 
 her heirS; the child who is the heir of both, and takes the legal estate 
 ex parte paterna, and the equitable estate ex parte materna, will, by 
 the merger of the equitable in the legal, become seised both at law and 
 in equity ex parte paterna, and the subsequent devolution will be 
 regulated accordingly. 
 
 But this rule holds only where the legal and equitable estates are co- 
 extensive and commensurate ; for if a person be seised of the legal estate 
 in fee, and have only a partial equitable interest, to merge the one in the 
 other might occasion an injurious disturbance of rights. Thus before 
 the Fines and Recoveries Act,((7) if lands had been conveyed to A. and 
 his heirs, in trust for B. in tail, with remained to A. in fee, had the 
 equitable remainder limited to A. been converted into a legal estate, it 
 would not have been barrable by B.'s equitable recovery.(/i) Lord 
 Alvanley upon this case observed — " It was maintained, that where 
 there is in the same person a legal and equitable interest, the former 
 absorbs the latter. I admit that where he has the same interest in both, 
 he ceases to have the equitable estate, and has the legal estate, upon 
 which the court will not act, but leaves it to the rules of law ; but I do 
 not by any means admit, that where he has the whole legal estate and a 
 partial equitable estate, the latter sinks into the former. It has been 
 very ably argued, that there seems an absurdity in saying he had an 
 equitable remainder for himself, *where he had the whole legal j- ^y. -. 
 fee ; but it is much more absurd to say he had a legal remainder. L J 
 
 (c) Bacon on Uses, 5. See Wainewright v. Elwell, 1 Mad. 634. 
 
 {d) Goodright v. Wells, Dougl. 747, per Lord Mansfield. 
 
 (e) Selby v. Alston, 3 Ves. 339; Goodright v. Wells, Dougl. 747, per Lord Mans- 
 field ; Wade v. Paget, 1 B. C. C. 363 ; S. G. 1 Cox, 74 ; Philips v. Brydges, 3 Ves. 
 126, per Lord Alvanley; Finch's case, 4 Inst. 85, 3rd resolution; Harmood v. Og- 
 lander, 8 Ves. 127, per Lord Eldon. 
 
 (/) Creagh v. Blood, 3 Jones & Lat. 133. (^) 3 & 4 W. 4, c. 74. 
 
 {h) Philips V. Brydges, 3 Ves. 120 ; Robinson v. Cuming, Rep. t. Talb. 164 ; S. 
 C. 1 Atk. 473 ; and see Boteler v. Allington, 1 B. C. C. 72 ; Merest v. James, 6 
 Mad. 118.
 
 90 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 It is impossible— it would be a solecism — to state to a lawyer that be 
 could bave an estate in fee witb a remainder in tail expectant in law 
 upon it ; but tbere is no sucb absurdity in saying be migbt bave the 
 whole legal estate, and a limited interest in the beneficial interest of that 
 estate. "When I am told that legal and equitable estates cannot subsist 
 in the same person, it must be understood always witb this restriction 
 — that it is the same estate in law and in equity : for then tbere is no 
 person upon whom the court can act — the equitable estate is absorbed — 
 the better phrase is, that it is no longer exists ; but when for the pur- 
 poses of justice it is necessary it should exist, that circumstance shall 
 not put a party entitled into a worse condition. (t)" 
 
 Again, in Habergham v. Vincent,(A-) a testator devised copyhold lands 
 to five trustees, upon trust to convey the estate to certain uses, which 
 failed, with an ultimate limitation to the heirs of the surviving trustee. 
 On a bill filed by the heir-at-law of the testator against the surviving 
 trustee, Lord Loughborough observed — " It is impossible to contend that 
 under the limitation to the right heir of the surviving trustee, the trustee 
 can take the fee beneficially." But on a subsequent day, he added — "I 
 am not so clear that if anything passed under the remainder to the right 
 heir of the surviving trustee, it would not be the fee to the trustee him- 
 self. Otherwise I must declare him a trustee for bis own right heir. I 
 doubt whether a man having the legal estate himself could be a trustee 
 of the equitable interest for his own right heir. I take it a man owes no 
 duty to his own heir-at-law." But eventually the court arrived at a dif- 
 ferent conclusion, and a settlement was directed, so as to give the ultimate 
 remainder to the right heir of the trustee as a purchaser. 
 
 In the case of a mortgage in fee it is said, a man and bis heirs are 
 trustees for himself and his executors -Jl) the meaning is that, until a 
 release, or foreclosure of the equity of redemption, the interest of the 
 P ^, Q -. mortgagee is of the nature of ^personalty, and passes on his death 
 L -I to his personal representative ; the heir, therefore, takes the estate 
 upon trust for the executor. A release or foreclosure, unless it happen 
 in the lifetime of the mortgagee, comes too late after his decease to alter 
 the character of the property, for, as the tree falls, so it must lie.(^m'^(l) 
 3. A trust is not issuing out of the land, hut as a thing collateral to 
 it. A legal charge, as a rent, issues directly out of the land itself, and 
 therefore binds every person, whether in the per or post, whether a pur- 
 chaser for valuable consideration or volunteer, whether witb notice or 
 without ; but a trust is not part of the land, but an incident made to 
 accompany it, and that not inseparably, but during the continuance only 
 of certain indispensable adjuncts ; for — 
 
 (0 Philips v. Brydges, 3 Yes. 125-12Y. {k) 2 Yes. jun. 204. 
 
 {l) Kendal v. Micfield, Barn. 50, per Lord Hardwicke. 
 
 [m) Canning v. Hicks, 2 Cb. Ca. 187: S. C. 1 Vern. 412; Tabor v. Grover, 2 
 Yern. 3G7 ; S. C. 1 Eq. Ca. Ab. 328 ; Clerkson v. Bowyer, 2 Yern. 66 ; Gobe v. Earl 
 of Carlisle, cited ib. ; Wood v. Nosworthy, cited Awdley v. Awdley, 2 Vern. 193. 
 
 (1) But if the heir foreclose, or obtain a release of the equity of redemption, it 
 is said he may keep the estate, and pay the executor the debt only. Clerkson v. 
 Bowyer, 2 Yern. 67, per Cur. But qusere.
 
 DEFINITION OF A TRUST. 91 
 
 4. A trust is annexed in ■privity to the estate, that is, must stand or 
 fall with the interest of the person by whom the trust is created ; as, if 
 the trustee die and leave no heir, it was the opinion of Lord Northington 
 that the lord who takes by escheat is not a privy to the estate upon which 
 the trust was ingrafted, and therefore will not be bound by it, but will 
 hold beneficially. (?i) And upon the same principle, if the trustee be 
 disseised, the tortious fee is adverse to that impressed with the trust, and 
 therefore the equitable owner cannot sue the disseisor in Chancery, but 
 must bring an action against him at law in the name of the trustee. (o) 
 
 During the system of uses, and also while trusts were in their infancy, 
 the notion of privity of estate was not extended to tenant by the curtesy, 
 or in dower, or by deg!t, or in fact to any person claiming by operation 
 of law, though through the trustee ; but in this respect the landmarks 
 have since been *carried forward, and at the present day a trust r ;|c-|q -i 
 follows the estate into the hands of every one claiming under the L J 
 trustee, whether in the j^er or iwst. A lord by escheat, as Lord North- 
 ington thought, would be still an exception ; and a disseisor is unques- 
 tionably not bound, for he asserts a new and adverse estate. 
 
 5. A trust is annexed in privity to the person. To entitle the cestui 
 que trust to relief in equity it is not only necessary he should prove the 
 creation of the trust, and the continuance of the estate supporting it, but 
 should also evince that the assign is personally privy to the equity, and 
 therefore amenable to the suhj^oena. If it can be shown that the assign 
 had actual notice, then, whether he paid a valuable consideration or not, 
 he is plainly privy to the trust, and bound to give it effect ; but if actual 
 notice cannot be proved, then, if he be a volunteer, the court will still 
 affect him with notice by presumption of law ; but if he be a purchaser, 
 the court must believe, that having paid the full value of the estate, he 
 was ignorant, at the time he purchased, of another's equitable title. A 
 purchaser for valuable consideration without notice is therefore the only 
 assign against whom privity annexed to the person cannot at the present 
 day be charged. 
 
 6. The cestui que trust has no remedy but hy suhpoena in Chancery : 
 and by chancery must be understood, not exclusively the court of the 
 lord chancellor, but any court invested with an equitable jurisdiction, 
 as opposed to common law courts,(p) and spiritual courts,(5') neither of 
 
 (w) See Viscount Downe v. Morris, 3 Hare, 394; Evans v. Brown, 5 Beav. 114. 
 
 (o) Finch's case, 4 Inst. 85, 1st resolution; and see Gilbert on Uses, edited by 
 Sir E. Sugden, p. 429, note 6. 
 
 {p) Sturt V. Mellish, 2 Atk. 612, per Lord Hardwicke; Allen v. Imlett, F. L. 
 Holt's Rep. 641 ; Holland's case, Styl. 41, per Rolle, J. ; Queen v. Trustees of Orton 
 Vicarage, 14 Q. B. Re. 139 ; Vanderstegen v. Witham, 6 M. & W. 457; Bond v. 
 Nurse, 10 Q. B. Re. 244. lu The Queen v. Abrahams, 4 Q. B. Re. 157, the court 
 professed to proceed upon the legal right, so that the principle was not disturbed, 
 though there may be a question how far the facts justified the assumption upon 
 which the court acted. In Roper t. Holland, 3 Ad. & Ell. 99, a cestui que trust 
 recovered upon an action of debt for money had and received on_ proof of the 
 admission by the trustee that he had a balance in hand for the plaintiff. Sloper 
 V. Cottrell, 2 Jur. N. S. 1046. 
 
 {q) Miller's case, 1 Freem. 283 ; King v. Jenkins, 3 Dowl. & Ryl. 41 ; Farrington 
 v. Knightly, 1 P. W. 549, per Lord Parker; Edwards v. Graves, Hob. 265 ; Witter 
 V, Witter, 3 P. W. 102, per Lord King.
 
 92 LE WIN ON THE LAW OF TRUSTS, ETC. 
 
 which have any *cognizance in matters of trust. A common-law 
 L "^ -1 court could never indeed, from the defective nature of its proceed- 
 ings, have specifically enforced a trust; but at one time it affected to 
 punish a trustee in damages for breach of the implied contract :(r) an 
 exercise of authority, however, clearly extra-provincial, and long since 
 abandoned. (s) Should a spiritual court attempt to meddle with a trust, 
 the Court of Queen's Bench might be moved to issue a prohibition. ((!) 
 
 [*21] *CH AFTER 11. 
 
 CLASSIFICATION OF TRUSTS. 
 
 The first and natural division of trusts is into simple and special. 
 
 The simple trust is where property is vested in one person upon trust for 
 another, and the nature of the trust, not being qualified by the settlor, 
 is left to the construction of the law. In this case the cestui que trust 
 has jus habendi, or the right to be put in actual possession of the pro- 
 perty, and jus disponendi, or the right to call upon the trustee to execute 
 conveyances of the legal estate as the cestui que trust directs. 
 
 The sp>ecial trust is where the machinery of a trustee is introduced for 
 the execution of some purpose particularly pointed out, and the trustee 
 is not, as before, a mere passive depositary of the estate, but is called 
 upon to exert himself actively in the execution of the settlor's intention ; 
 as where a conveyance is to trustees upon trust to sell for payment of 
 debts. 
 
 Special trusts have again been subdivided into ministerial (or instru- 
 mented) and discretionary. The former, such as demand no further 
 exercise of reason or understanding than every intelligent agent must 
 necessarily employ; the latter, such as cannot be duly administered with- 
 out the application of a certain degree of prudence and judgment. 
 
 A trust to convey an estate must be regarded as ministerial ; for, pro- 
 vided the cestui que trust be put in possession of the estate, it is perfectly 
 immaterial to him by whom the conveyance is executed. 
 
 Mr. Fearne was of opinion, that even a trust for sale should be con- 
 sidered as ministerial ; " for the price," he said, " is not arbitrary, or at 
 the trustee's discretion, but to be the best that can be gotten for the 
 r*22 "1 ®^*^*^' which is a fact to be ascertained *independently of any 
 L J discretion in the trustee."(a) But there is much room for judg- 
 ment in the manner of proceeding to a sale, and the precautions that are 
 taken will have a material influence upon the price. 
 
 (r) Megod's case, Godb. 64; Jevon v. Bush, 1 Vern. 344, per Lord Jeffries; 
 bmith V. Jameson, 5 T. R. 603, per Buller, J. ; and see 1 Eq. Ca. Ab. 384, D. (a). 
 
 («) Barnardiston v. Soame, 7 State Trials, 443, Harg. ed., per Chief Justice 
 ^orth ; hturt v. Mellish, 2 Atk. 612, per Lord Hardwicke ; Holland's case. StyL 41, 
 per Rolle, J. ; Allen v. Imlett, F. L. Holt's Rep. 14. 
 
 T r\,^^D * ,''• ®™'^^' ^ P- ^- '^J Edwards v. Freeman, 2 P. W. 441, per Sir J. 
 Jekyll ; Barker v. May, 4 M. & R. 386. 
 («) Fearne's P. W. 313.
 
 CLASSIFICATION OF TRUSTS. 93 
 
 A fund in trustees upon trust to distribute among such charitable 
 objects as the trustees shall think &t,(h) or an advowson conveyed to 
 them upon trust to elect and present a proper preacher,(cy) is clearly a 
 discretionary trust ; for the selection of the most deserving objects in the 
 first instance, and the choice of the best candidate in the second, is a 
 matter calling for serious deliberation, and not to be determined upon 
 without due regard to the merits of the candidates, and all the particular 
 circumstances of the case. 
 
 A trust "to distribute at the discretion of the trustees" is frequently 
 designated in the books as a mixture of trust and 2yoicer,{d'^ that is, a trust 
 of which the outline only was sketched by the settlor, while the details 
 were to be filled up by the good sense of the trustees. The exercise of 
 such a power is imijerative, while the mode of its execution is matter of 
 judgment and discretionary. 
 
 A mixture of trust arid jioieer is not to be confounded with a common 
 trust to which a power is annexed ; for, in the latter case, the trust itself 
 is complete, and the power, being but an accessory, may be exercised or 
 not, as the trustee may deem it expedient ; as where lands are limited to 
 trustees with a power of varying the securities : for in such a case the 
 power forms no integral part of the trust, but is merely collateral and 
 subsidiary, and the execution of it, in the absence of fraud, cannot be 
 compelled by application to the court. 
 
 Again, trusts may be divided, with reference to the object in view, 
 into lawful and unlawful. The former, such as are directed to some 
 honest purpose, as a trust to pay debts, &c., which are called by Lord 
 Bacon Intents or Confidences, and will be administered by the court. 
 The latter are trusts ^created for the attainment of some end ^ ^,-,.3 -, 
 contravening the policy of the law, and therefore not to be sane- L "' J 
 tioned in a forum professing not only justice but equity, as a trust to 
 defraud creditors or to defeat a statute. Such are designated by Lord 
 Bacon as Frauds, Covins, or Collusions.(e\ 
 
 Another divisions of trusts is into ji^Mic and private. By public 
 must be understood such as are constituted for the benefit either of the 
 public at large or of some considerable portion of it answering a pai'ticu- 
 lar description. To this class belong all trusts for charitahle purposes, 
 and indeed public trusts and charitable trusts may be considered as 
 synonymous expressions. (/) In private trusts the beneficial interest is 
 vested absolutely in one or more individuals vsho are, or within a cer- 
 tain time may be definitely ascertained, and to whom, therefore, collec- 
 tively, unless under some legal disability, it is competent to control, 
 modify, or determine the trust; the duration of trusts of the latter kind 
 cannot be extended by the will of the settlor beyond the limits of legal 
 
 (6) Attorney-General v. Gleg, 1 Atk. 356; Hibbard v. Lambe, Amb. 309; Cole 
 V. Wade, 16 Ves. 27; Gower v. Mainwaring, 2 Ves. 7. 
 
 (c) Attorney-General v. Scott, 1 Ves. 413 ; Potter v. Chapman, Amb. 98. 
 
 \d) Cole v. Wade, 16 Ves. 43 ; Gower v. Mainwaring, 2 Ves. 89. 
 
 (e) Bac. on Uses, 9. 
 
 (/) See Attorney-General v. Aspinall, 2 M. & Cr. 622 ; Attorney-General v. 
 Heelis, 2 S. & S. 76 ; Attorney-General v. Corporation of Slire%y3bury, 6 Beav. 
 220. 
 
 January, 1858. — 7
 
 94 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 limitations, viz., a life or lives in being with an ingraftment of twenty- 
 one years. But tte objects of a public trust are an uncertain and fluc- 
 tuating body, and the trust itself is of a permanent and lasting character, 
 and is\ot confined within the limits prescribed to a settlement upon a 
 private trust. (^) 
 
 [*24] 
 
 *CHAPTER III. 
 
 OF THE PARTIES TO THE CREATIOX OF A TRUST. 
 
 Now that we have defined and distributed trusts, we shall next enter 
 upon the creation of them ; first, by the act of a party, and secondly, 
 by operation of law. Upon the subject of the former class, we propose 
 to treat, First, Of the necessary parties to the creation of a trust; 
 Secondly, What property may be made the subject of a trust; Thirdly, 
 With what formalities a trust may be created ; Fourthly, What may be 
 the object or scope of a trust; and Fifthly, In what language a trust 
 may be declared. In this chapter, we shall consider the necessary par- 
 ties to a trust. 
 
 SECTION I. 
 
 OF THE SETTLOR. 
 
 The creation of a trust implies the presence of three persons, or at 
 leastof three characters, namely, — l,a settlor; 2, a trustee; and 8, a cestui 
 qxie trust. 
 
 As the creation of a trust is a modification of property in a particular 
 form, it may be laid down as a general rule that whoever is competent to 
 deal with the legal estate, may vest it in a trustee for the purpose of exe- 
 cuting the settlor's intention. 
 
 The sovereign, as to his private property, may, by letters patent, grant 
 it to one person upon trust for another. (a) But the trust must appear 
 upon the face of the letters patent ; for if the grant be expressed to be 
 made to one person, a trust in favour of another cannot be proved by 
 r*9f; n i'f'^''-'^ ill favour of *another, for this would contradict the nature 
 L "^ J of the instrument which purports to be an act of bounty to the 
 grantee. (6) However, if the grant be to A. and his heirs with the limita- 
 tion of a beneficial interest to A. for life only, a trust of the remainder 
 will not pass to the grantee, but will result to the crown, for the pre- 
 sumption of bounty as to the whole is rebutted by the declared intention 
 as to the part.(c) 
 
 All prizes taken in war vest in the sovereign, and may by the royal 
 warrant be granted to trustees upon trust to distribute in a prescribed 
 form amongst the captors ; but an instrument of this kind is held not to 
 
 (g) Christ's Hospital v. Grainger, 1 Mac. & Gord. 460. 
 
 (a) Bac. on Uses, 66. (b) Fordyce v. Willis, 3 B. C. C. 511. 
 
 (c) Bac. on Uses, 66.
 
 r ARTIES TO THE CREATION OF A TRUST. 95 
 
 vest an interest in tlie cesfuis que trust whicli they can enforce in equity, 
 but to resemble a power of attorney for reducing the prizes into posses- 
 sion, or a creditor's deed to which the creditors are not parties, and may 
 at any time be revoked or varied at the pleasure of the sovereign before 
 the general distribution. (cZ) 
 
 The crown may by will bequeath its private personal property to one 
 person in trust for another, but the will must be in writing and under 
 the sign manual, (e) though the Ecclesiastical court has no jurisdiction 
 to admit it to probate. (/) 
 
 As to the power of Corporate Bodies to create a trust, it was compe- 
 tent to them, before the late Municipal Corporations Act,((7) (subject as 
 to ecclesiastical corporations to the restraining statutes of Elizabeth,) to 
 alienate their property, and as a consequence to vest it in a trustee. (A) 
 But now civil corporations are themselves trustees of their property, for 
 the public purposes prescribed by the Municipal Corporations Act, and 
 are debarred from alienating their real(;')or personal estate(A;) without the 
 consent of the Lords of the Treasury. 
 
 A Feme Covert may create a trust of real estate, but it must be with 
 the consent of her husband, and there must be all the attendant formali- 
 ties required by the Fines and Recoveries *Act. It is some- j- ^,->p -. 
 what singular that by our law a married woman is under a total L " J 
 disability as to her choses en action. The husband, however, may create 
 a trust of them sub modo : that is, if they be reduced into possession 
 during the coverture, the settlement will be unimpeachable, but if they 
 remain choses en action at the death of the husband, the wife will be 
 entitled to them by survivorship. And the husband may, subject to 
 the wife's equity to a settlement,^?) create a trust of the wife's equitable 
 chattel real,(wi) unless the chattel be of such a nature that it cannot pos- 
 sibly fall into possession during the coverture. (») 
 
 As regards property settled to the separate use of a feme covert, with- 
 out a clause against anticipation, she is to all intents and purposes con- 
 sidered a feme sole, as if real estate be conveyed to a trustee and his 
 heirs, or if personal estate be vested in a trustee and his executors 
 upon trust for the feme covert, for her sole and separate use, and 
 to be at her sole disposal as to the fee simple in the one case and the 
 absolute interest in the other, she has the entire control and may exer- 
 cise her ownership or implied power of appointment by creating a trust, 
 extending even beyond the coverture. If the feme covert be tenant for 
 life only to her separate use without any clause against anticipation, she 
 has full power to make a settlement of her life estate. Where the power 
 of anticipation is restrained the feme covert of course can make no dis- 
 position of the property, except as to the annual produce which has 
 actually become due. 
 
 {d) Alexander v. Duke of Wellington, 2 R. & M. 35. 
 
 (e) 39 & 40 G. 3, c. 88, s. 10. (/) Williams on Executors, 13, 5th ed. 
 
 (g) 5 & 6 W. 4, c. 76. (A) Colchester v. Lowten, 1 V. & B. 226. 
 
 (i) 5 & 6 W. 4, c. 76, s. 94. 
 
 \k) Attorney-General v. Aspinall, 2 M. & Cr. 613 ; Attorney-General v. Wilson, 
 Cr. & Ph. 1. [l) Hanson v. Keating, 4 Hare, 1. 
 
 {m) Donne v. Hart, 2 R. & My. 360. (w) Duberly v. Day, 16 Beav. 33.
 
 96 LEWIX ox THE LAW OF TRUSTS, ETC. 
 
 If an Infant before the Fines and Recoveries Act had levied a fine or 
 suffered a recovery, he might also have declared the uses,(o) and unless 
 the fine or recovery had been reversed by him during his nonage he had 
 been bound by the declaration, (p) but deeds have now been substituted 
 for fines and recoveries, and every deed of an infant, whether under the 
 act or independent of it, either is void or may be avoided. An infant 
 at the present day might make a feoffment and at the same time declare 
 a use upon it, and both feoffment and use *would be voidable 
 [ '^-' ] only and not void,(2) and by analogy it might be held that the 
 infant can also engraft a trust upon the legal estate, but a court of equity 
 would never allow any equitable interest to be enforced against the 
 infant to his prejudice, but would give him the same power of avoidance 
 over the equitable as he had over the legal estate, and if the infant has 
 died without having avoided the trust, it is conceived that a court will 
 still investigate the transaction, and see that no unfair advantage had 
 been taken, (r) 
 
 An infant may by the custom of Kent for valuable consideration cer- 
 tainly, and according to the better opinion, without value,(s) make a 
 feoffment at the age of fifteen, and upon such feoffment he may declare 
 uses. (A But a court of equity would no doubt confine such a custom 
 within its narrowest bounds, or as trusts have sprung into being since 
 the statute of Hen. 8, might hold the custom to be void as of recent 
 growth in respect of the equitable interest, and at all events would not 
 allow the custom to be made an instrument of fraud. 
 
 Before the late Wills Act^u) an infant of the age of fourteen years 
 might have bequeathed his personal estate and have created a trust of it, 
 but now, as regards personal as well as real estate, every testator must 
 be of the age of twenty-one years. 
 
 Lunatics or Idiots might, before the Fines and Becoveries Act, have 
 levied a fine or suffered a recovery, and the uses declared would have 
 been valid until the fine or recovery had been reversed. But now fines 
 and recoveries have been abolished and the deed of a lunatic or idiot is 
 ipso facto void.(v) The feoffment of a lunatic or idiot is voidable by 
 the heir only.^i*) However, should a lunatic or idiot engraft a declara- 
 tion of trust upon a feoffment a court of equity would have jurisdiction 
 to set it aside -jix^ though generally it declines to interfere even in this 
 case as against a purchaser for valuable consideration without notice of 
 the lunacy or idiocy, (y) 
 
 r*281 *^° Alien may acquire real e&id^iQhy purchase, though he 
 L -J cannot take it by descent or operation of law, and if he purchase 
 
 (o) Gilb. on Uses, 41, 245, 250. [p) lb. 246. 
 
 \q) Bac. on Uses, 67 ; Bac. Ab. Uses, E. (r) See Cr. Dig. vol. iv. p. 130. 
 
 (s) Robinson on Gavelkind. u) Gilb. on Uses, 250. 
 
 («) 1 Vict. c. 26. 
 
 {v) But as to the contracts of a lunatic, see Molton v. Camroux, 2 Exch. Rep. 
 487, 4 Exch. Rep. 1?. ' ^ 
 
 (w) Co. Lit. 247, b. 
 
 (X) See Cruise, vol. iv. p. 130, vol. v. p. 253 ; Niel v. Morley, 9 Ves. 478. 
 284 "^^ ^'' ^^"'"?^0"' 2 ^^^^^- ^ t'O^*^'- 486; Greenslade v. Dare, 20 Beav.
 
 PARTIES TO THE CREATION OF A TRUST. 97 
 
 it he may hold it until office found, but cannot give an alienee a better 
 title than he had himself. An alien, therefore, can only create a trust 
 of real estate until the crown steps in. As to personal estate an alien 
 enemy cannot even hold it, but an sXiqu friend maybe the lawful owner 
 of chattels personal, and may exercise the ordinary rights of proprietor- 
 ship over them, and consequently may create a trust. 
 
 With regard Traitors, Felons, and Outlaics, a distinction must be 
 taken between real and personal estate. In high treason, lands, whether 
 held in fee simple, or fee tail,(s) or for life, are upon attainder forfeited 
 absolutely to the crown. (^s) In petty treason and murder,(a) lands in 
 fee (subject to the year, day, and waste of the sovereign,) escheat to the 
 lord of the fee, and lands in tail are forfeitable to the crown for the life 
 of the offender, and on his death devolve on the issue in tail. Outlawry 
 for treason, petty treason, or felony, is equivalent to attainder, and the 
 lands of the outlaw are forfeited, or escheat, exactly in the same manner 
 as if a judgment had been pronounced. (Z^) In treason, petty treason, 
 and felony, or in outlawry for those crimes, the forfeiture works from 
 the time of the offence, and therefore from that date no trust can be 
 created as to lands : but the goods and chattels of traitors, felons, and 
 outlaws, are forfeited only from the time of conviction, or declaration of 
 outlawry, and therefore up to that period the traitor, felon, or outlaw, 
 may vest his goods and chattels in a trustee upon trusts. However, the 
 law will not allow this power of disposition to be exercised collusivcly 
 for the purpose of defeating the just rights of the crown ;(l") but the 
 traitor, felon, or outlaw may sell the goods for valuable consideration. ((/) 
 And so he may assign the property upon trust to secure the hona fide 
 debt of a creditor ;(e) but the existence of the debt must be actually 
 ^proved, and the mere recital of it in the security will not be ^ ^^^^ -. 
 sufficient. (/) An assignment upon a meritorious consideration, L ~" J 
 as a bargain and sale to a trustee for the purpose of making provision 
 for a son, will not support the deed.(^) " Though a sale," said Lord 
 Holt, " hona fide, and for a valuable consideration, had been good, 
 because the party had a property in the goods till conviction, and ought 
 to be reasonably sustained out of them, yet such a conveyance as this 
 could not be intended to any other purpose than to prevent a forfeiture 
 and defraud the king ;" and added, '' that there was a fraud at common 
 law in such a case."(/i) 
 
 Outlawry in misdemeanors and civil actions is a contempt of court, 
 and works a forfeiture of the profits of the offender's lands for his life, 
 and of his goods and chattels, whether real or personal, absolutely. The 
 person so outlawed, therefore, cannot from that time affect the pernancy 
 
 (z) 26 Hen. 8, c. 13. See 2 Bac. Ab. 576, 580. 
 
 \zz) Attainder is necessary to support the crown's right, even to the year, day, 
 and waste. Rex v. Bridger, 1 M. & W. 145. 
 la) See 54 G. 3, c. 145. 
 
 (6) See Co. Lit. 390, b ; Holloway's case, 3 Mod. 42 ; King v. Ayloff, 3 Mod. 72. 
 (c) See Anon. 2 Sim. N. S. 71. {d) Hawk. Pleas of the Cr., book 2, c. 49. 
 
 (e) Perkins v. Bradley, 1 Ha. 219 ; Whitaker v. Wisbey, 12 C. B. R. 44. 
 (/) Shaw V. Bran, 1 Stark. 320. {g) Jones v. Ashurst, Skinn. 357. 
 
 (A) 4 Black. Comm, 387, 388.
 
 98 
 
 LE^VIN ON THE LAW OF TRUSTS, ETC. 
 
 of the profits of his real estate, nor make any settlement of his personal 
 
 estate. 
 
 If a man be declared a hanhrupt, all the real and personal estate to 
 which he may acquire a title up to the time of obtaining his certificate, 
 becomes vested in his assignees ;(«) but the surplus after payment of his 
 debts still belongs to him, and of this interest he may create a trust. 
 
 In the case of an insolvent, all the real and personal estate which may 
 be vested in or may accrue to him up to the date of the final discharge, 
 is transferred by the act to his assignees ;(/»:) and as to subsequently 
 acquired property, the assignees may, by virtue of the judgment to be 
 entered up against him, at any time divest it out of the insolvent by 
 taking out execution, but they must first obtain the order of the court.(/) 
 An insolvent, therefore, can make no settlement of property which he has 
 acquired before the final discharge, and the claim of the assignees, should 
 it be ever advanced, would by the lien of the judgment over-ride a trust 
 of any real or leasehold estate to which he might have become entitled 
 even subsequently to the final discharge. 
 
 [ *30 ] *SECTIOX 11. 
 
 WHO MAY BE A TRUSTEE. 
 
 The Sovereign may sustain the character of a trustee, so far as regards 
 the capacity to take the estate, and to execute the trust ; but great doubts 
 have been entertained whether the subject can, by any legal process, 
 enforce the performance of the trust. The right of the cestui que trust 
 is sufficiently clear, but the defect lies in the rcviecly.i^a\ The Court of 
 Chancery has no jurisdiction over the king's conscience, for that it is a 
 power delegated by the king to the chancellor to exercise the king's equi- 
 table authority betwixt subject and subject. (i) The Court of Exchequer 
 has, in its character of a court of revenue, an especial superintendence 
 over the royal property ; and it has been thought that through that chan- 
 nel a ccstad que trust might indirectly obtain the relief to which, on the 
 general principles of equity, he is confessedly entitled. Xo such juris- 
 diction, however, appears to have been known when Lord Hale was chief 
 baron. (c) Lord Hardwicke once observed in chancery, " I will not 
 decree a trust against the crown in this court, but it is a notion esta- 
 blished in courts of revenue by modern decisions that the king may be a 
 royal trustee ;"(fZ) but the doctrine was still unsettled in the time of Lord 
 Northington.(e) And in a recent case,(/) it was decided that though 
 
 (i) 12 & 13 Vict. c. 106, ss. 141, 142. 
 
 {k) 1 & 2 Vict. c. 110, s. 37. [I) i & 2 Vict. c. 110, s. 87. 
 
 (a) Pawlett v. Attorney-General, Hard. 467, 469; Burgess v. Wheate, 1 Ed. 255; 
 Kildare v. Eustace, 1 Vern. 439. 
 
 (b) Said by counsel in Pawlett v. Attorney-General, Hard. 468. 
 
 (c) See Pawlett v. Attorney-General, Hard. 467, 469; and see Wike's case, 
 Lan. 54. ; i > 
 
 {d) Penn v. Lord Baltimore, 1 Ves. 453; and see Reeve v. Attorney-General, 2 
 Atk. 224 ; Hovenden v. Lord Anneslev, 2 Sch. & Lef. 617. 
 (e) See Burgess v. Wheate, 1 Ed. 2*55. 
 (/) Hodge V. Attornev-GeneraL 3 Y. & C. 342.
 
 PARTIES TO THE CREATION OF A TRUST 99 
 
 the Court of Exchequer could decree the -possession of thq p'-operty 
 according to the equitable title, it had no jurrsmction to direct the crown 
 to convey the legal estate. The subject may undoubtedly appeal to "the 
 sovereign by presenting a petition *of right, ((/) and it cannot be j- ,^0-1' -1 
 supposed that the fountain of justice would not do justipe.(A) L . ■ J 
 
 A coi'poration could not have been seised to a use, fori {£s was gravety 
 observed, it had no soul, and how then could any confident's be repoecd 
 in it ? But the technical rules upon which this doctrine proeoedod, hav*^ 
 long since ceased to operate in respect of trusts ; and at the pr'^sent day 
 every body corporate is compellable in equity to carry the intention into 
 execution. (A Indeed, every corporation since the Municipal Corpora- 
 tions Act(^) has become a trustee, for a corporation has now no longer 
 the power to alien and dispose of its property, except with the sanction 
 of the lords of the treasury, but is bound to apply it to certain public 
 purposes pointed out by the act; and if there be any misapplication of 
 that fund, there lies a remedy in chancery by information. ^ But 
 although the court has ample jurisdiction to oblige a corporation to the 
 observance of good faith, and the property already vested in a corporate 
 body will be administered upon the trust attached to it, yet by the statute 
 of mortmain no real estate can now be conveyed to a corporation upon anj'^ 
 trust without the license of the crown. However, there is no objection 
 to an assignment or bequest of pure personal estate to a corporation upon 
 a trust. 
 
 The Bank of England cannot directly or indirectly be made a trustee 
 of stock. The corporation manages the accounts of the public funds, and 
 is charged with the care of paying the dividends ; but refuses, and can- 
 not be compelled by law, to *uotice any rights but those of the j- ^q^, ., 
 legal proprietors in whose names the stock is standing. L ■'J 
 
 The company will not enter notice of instruments inter vivos upon their 
 books ; and though they are obliged by certain Acts of Parliament to 
 enter the wills, or at least extracts from the wills, of deceased proprietors 
 of stock, the object of the legislature, as the court has now clearly deter- 
 mined, was not to make the company responsible for the due administra- 
 tion of the fund according to the equitable right, but to enable them to 
 ascertain who under the will were the persons legally entitled. (m)(l) 
 
 {g) As to the transfer of the equity jurisdiction of the Court of Exchequer to the 
 Court of Chancery, see 5 Vict. c. 5, s. 1 ; and Attorney-General v. Corporation of 
 London, 8 Beav. 270, 1 H. of L. Ca. 440. 
 
 (A) Scounden v. Hawley, Comb. 172, per Dolben, J. ; Reeve v. Attorney-General, 
 cited Penn v. Lord Baltimore, 1 Ves. 446. 
 
 {i) See Attorney-General v. Lauderfield, 9 Mod. 286 ; Dummer y. Corporation of 
 Chippenham, 14 Ves. 252 ; Green v. Rutherforth, 1 Ves. 468 ; Attorney-General v. 
 Whorwood, 1 Ves. 536 ; Attorney-General v. Mayor of Stafford, Barn, 33 ; Attorney- 
 General V. Foundling Hospital, 2 Ves. jun. 46 ; Attorney-General v. Earl of Claren- 
 don, 17 Ves. 499; Attorney-General v. Caius College, 2 Keen, 165. 
 
 {k) 5 & 6 W. 4, c. 76. 
 
 {I) Attorney-General v. Aspinall, 1 Keen, 513, 2 M. & 0. 613 ; Attorney-General 
 v. Borough of Poole, 4 M. & C. 17; Parr v. Attorney-General, 8 CI. & Finn. 409 : 
 Attorney-General v. Corporation of Lichfield, 11 Beav. 120. 
 
 {m) Hartga v. Bank of England, 3 Ves. 55; Bank of England v. Parsons, 5 Ves. 
 
 (1) By an act of William & Mary (4 W. & M. c. 3, s. 10,) the will was directed
 
 100 LEl^flX ON TIl^ LAW 01 TKU5T<, ETC. 
 
 Were the /-onstruetion to' be dthenvise, the Bank of England Tvould be 
 trustee for half the familirt in the kingdom. 
 
 ^s-tne bank is not bound to recognize even the contents of the will 
 beyord the lecjal devise, a fortiori it will not be converted into a trustee 
 by fi'otiee of anv -^c'reement, by which the interests taken under the will 
 hav\3 subsequefrtiy shifted from one person to another; as, if stock be 
 
 "-. devised' to A. for life, *with remainder to B., and A. assign to 
 ^'Tf^ ] JB.j'o? B. release to A., although in equity the whole beneficial 
 665'; Efank of England v. Lnnn, 15 Tes. 5S3, per Lord Eldon ; Humberstone v. 
 eha.-e, 2 Y. & C. 209^ 
 
 to be entered in the Eeceipt Office of the Exchequer, where the annuities were 
 then payable : but br a subsequent act in the same reign {5 V> . & M c. 20, s. 2U,) 
 the Bank was incorporated; and by statutes of George the First and George the 
 Second (1 Geo. 1. st. ii. c. 19. s. 12 ; 30 Geo. 2, c. 19, s. 49.) it was enacted, that 
 " a person possessed of stock might devise the same by will in writing, attested by 
 two credible witnesses ; but that such devisee should receive no payment thereon, 
 till so much of the will as related to the said stock should be entered in the office 
 of the Bank ; and in default of such devise, the stock should go to the executors or 
 administrators." 
 
 Upon the effect of these provisions it has been held — 1st, That although stock 
 be specifically devised, and the wiU be duly attested by two witnesses, yet, until 
 the executor assent to the specific bequest, the legal property of the stock remains 
 vested in the executor; and if it be necessary to make use of it as assets, he may 
 bring an action at law against the bank for refusing to transfer in obedience to his 
 directions. Franklin v. The Bank of England, 9 B. & C. 156. And of course the 
 bank cannot obtain an injunction in equity against the legal proceedings; Bank 
 of England v. Moffat, 3 B. C. C. 260 ; Bank of England r. Lunn, 15 Ves. 569; Bank 
 of En°gland v. Parsons, 5 Yes. 665; for, as Lord Eldon observed, if the executor 
 cannot maintain an action at law, the bank has no need of assistance from a court 
 of equity; and if he can maintain his action, then he must be authorized to do so 
 by the statute, and equity cannot interfere. Bank of England v. Lunn, 15 Yes. 583. 
 Lord Thurlow once expressed an opinion that the devise of stock was in the nature 
 of a parliamentary appointment, and did not require the executor's assent ; Pear- 
 son T. Bank of England. 2 Cox, 178, 179 : but he afterwards changed his opinion, 
 and conceived the executors assent to be necessary, as in a specific devise of lease- 
 holds. Bank of England v. MofiFat, 3 B. C. C. 263* ; compare Bank of England v. 
 Parsons, 5 Yes. 668. Lord Eldon said, that, as by a clause in the act, stock could 
 not be attached, sequestered, or taken in execution, during the lifetime of the 
 holder, he had always doubted whether the legislature did not intend to give it a 
 peculiar value by enabling the party to devise it, like land, independently of the 
 executor: but his lordship said, the construction adopted in practice was, that, 
 though specifically bequeathed, it must have the executor's assent, and was liable, 
 as assets, to the payment of debts: Bank of England v. Lunn, 15 Yes. 517. 518; 
 and so the law is now clearly settled. 2ndly, There is no doubt, that, after the 
 executors assent, the specific legatee, if the will was attested by two witnesses, 
 becomes the perfect legal proprietor, and may bring an action at law against the 
 bank for refusing to transfer into his name. See Bank of England v. Lunn, 15 
 Yes. 518, and following pages. 3rdly, If the stock be specifically bequeathed, but 
 the will be not attested by two witnesses, then the legal property of the funds vests 
 absolutely in the executor : but, as the act does not express how the executor shall 
 apply it, the court considers him to hold it upon trust, subject to the payment of 
 debts, for the person to whom it was informally devised. The legatee could of 
 course have no legal interest in the stock until the executor had made an actual 
 transfer to him. See Bank of England v . Lunn. 15 Yes. 578 ; Rider v. Kidder, 10 
 Yes. 369 ; Pvipley v. Waterworth, 7 Yes. 440, 452. 
 
 Xow by the late Will Act (7 Gul. 4, « 1 Y. c. 26,) the gift of stock by will has 
 been put on the same footing with the testamentary disposition of all other pro- 
 perty. 
 
 By the 8 & 9 Yict. cap. 97. the provisions of the former acts relating to registra- 
 tion of testamentary instruments in the office of the bank, were repealed.
 
 PARTIES TO THE CREATION OF A T nU S T. 101 
 
 interest has thus become vested in A. or B., the bank will not transfer 
 the stock during the life of A. to the one or the other; but, on A.'s 
 decease, will transfer to B. or his personal representative. However, a 
 suit may be instituted for the purpose of compelling the bank to give 
 effect to the equitable title ; but, the refusal of the company to act with- 
 out the order of the court, will be considered as justifiable and proper, 
 and therefore the bank in such suits will be allowed their costs.(/*) 
 
 *A/eme covert may be a trustee, but it would not be advisable ^ ^^^ -, 
 to select a, feme covert.{o) 
 
 There appears, indeed, to be no want of discretion for the due execu- 
 tion of the trust, for a women has no less judgment after marriage than 
 before ■,{p) nay, as was quaintly added by Sir John Trevor, she rather 
 improves it by her husband's teaching.(j) The reasons upon which her 
 disabilities are founded, are her own interest or her husband's, or both;(r) 
 and, where these are not concerned, she possesses as much legal capacity 
 as if she were perfectly sui Juris ; thus, she may execute powers simply 
 collateral,(s) and (somewhat contrary to principle) even powers appendant, 
 or in gross. (^) At law, the trustee is considered as the sole and absolute 
 proprietor, and therefore he can have no power that does not flow from 
 the legal ownership ; but in equity, the absolute interest is vested in the 
 cestui que trvM, and, as the trustee is regarded in the light of a mere 
 instrument, any authority communicated to a trustee must have the 
 character of a power simply collateral. (w) It follows, that if a discretion- 
 ary trust be committed to a feme covert, there is nothing to prevent her 
 due administration of it, so far as relates to her legal judgment and 
 capacity. At the same time it must be admitted that a woman's will is 
 not her own, and that if a trust were confided to difemc covert, the hus- 
 band would, in fact, exercise no little influence. Indeed, as the husband 
 would be liable for her breaches of trust, he must, for his own protection, 
 look to the manner in which she discharges the ofiice.(r) 
 
 But further, the appointment of a feme covert is attended *with r ^35 -i 
 inconvenience from her inability to join in the requisite assu- L 
 ranees. At common law, if lands be vested in a feme covert upon con- 
 dition to enfeoff another, she may execute the feoffment by her own act, 
 without the intervention of her husband ;(2c) and hence it has been 
 
 (n) Pearson v. Bank of England, 2 B. C. C. 529 ; Austin v. Bank of England 8 
 Yes. 522: Marrratt t. The Bank, and Aynsworth v. The Bank, cited lb. 524, 
 note (b). As to making the bank parties, see 39 & 40 G. 3, c. 36. 
 
 (0) Lake v. De Lambert, 4 Yes. 595. per Lord Loughborough. 
 
 [p) Compton T. Collinson. 2 B. C. C. 38T, per Buller, J. ; Hearie v Greenbank, 
 1 Y^=. 305. per Lord Hardwicke: Bell r. Hyde, Pr. Ch. 330, per fcir John Trevor; 
 and see marginal note to Moore v. Hussey, Hob. 95 ; and see Needier v. Bishop of 
 Winchester. Hob. 225. 
 
 Iq) Bell V. Hvde. Pr. Ch. 330. 
 
 (>) Comptonv. Collinson, 2 B. C. C. 387, per Buller, J. 
 
 (s) Co Lit. 112, a; ib. 187. b ; Lord Antrim t. Duke of Buckingham, 2 Freem. 
 168, per Lord Keeper Bridgnian : Blithe's case. ib. 91, vid. 2nd resolution; Godol- 
 phin V. Godolphin. 1 Yes 23. per Lord Hardwicke. 
 
 {t) See Sugden on Powers, c. 3, sect. 1. (") See infra. 
 
 [v) See Sniith v. Smith, 21 Beav. 385. 
 
 (if) Daniel v. Ubley, Sir W. Jones, 137.
 
 102 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 aroued, tliat, ia the case of a trust, she may, equally without her hus- 
 dand's concurrence, convey the estate to the parties equitably entitled. (x) 
 But between the two cases there is this clear and obvious distinction, that 
 a condition is part and parcel of the common law, while a trust is only 
 recognised in the /o?'Hm of a court of equity; except, therefore, the trust 
 be so worded as to bear the construction of a legal condition, it seems 
 impossible to contend that an instrument otherwise inoperative should, 
 from the mere circumstance of the trust, which a court of law cannot no- 
 tice, acquire a validity, (y) Mr. Fonblanque suggests the additional reason, 
 that if a married woman were allowed to convey a trust estate without 
 her husband's concurrence, she might convey it before the several objects 
 of the trust were satisfied, for which he might, jointly with her, be respon- 
 sible to the cestui que trust. {z^ 
 
 It is almost equally undesirable to' appoint a feme who is single a 
 trustee, for should she marry, the character of the trust is altered, and 
 the husband, as liable for her breaches of trust, must have a control over 
 her acts. On these grounds the court has refused to appoint a feme 
 sole a trustee, as, in the event of her marriage, the inconveniences above 
 suggested would arise. (a) 
 
 An infant labours under still greater disability than a /ewe covert ; for, 
 first, as regards judgment and discretion, a fane is admitted to have 
 capacity, though she cannot in all cases freely exercise it; but an infant 
 is said altogether to ivant capacity. (i) An infant cannot be steward of 
 r >^op -X the court of a *manor,f c) or attorney for a person in a suit,(<;?) or 
 L -J guardian to a minor,(e) or be a bailiff" or receiver ;(/) but can 
 only discharge such acts as are merely ministerial, as to be an attorney to 
 deliver seisin, (</) or as lord of a manor to give eff'ect to the custom. (A) 
 So, as executor, he might, until a recent act, have been the channel or 
 conduit pipe through which the assets found their way to the hands of 
 the creditors in a due course of administration ;(<) but had he acted other- 
 wise than ministerially, as by signing an acquittance without receipt of 
 the money, such an exercise of discretion had been actually void. (A:) It 
 follows that an infant cannot exercise even a power simply collateral (of 
 
 (x) Daniel v. Ubley, Sir W. Jones, 138, per Whitlock, and Dodridge, J. 
 
 (?/) See Mr. Hargrave's Observations. Co. Lit. 112, a, note (6), and Mr. Fon- 
 blanque's Treat, on Equitj-, toL i. p. 92.' 
 
 (z) Treat, on Equity, vol. i. p. 92. 
 
 (a) Brook v. Brook, 1 Beav. 531. 
 
 [h) Hearle v. Greenbank, 3 Atk. 712, and 1 Ves. 305, per Lord Hardwicke: 
 Grange v. Tiving, 0. Bridg. 108, per Sir 0. Bridgman ; Compton v. Collinsoa, 2 B. 
 C. C. 387, per Buller, J. ; and see Sockett v. Wraj, 4 B. C. C. 486. 
 _ (c) Co. Lit. 3, b; and see Mr. Hargrave's note (4,) ib. But acts done by an 
 infant in the character of steward cannot be avoided by reason of his disability. 
 Eddleston v. Collins, 3 De Gex, Mac. & Gord. 1. 
 
 {d) Co. Lit. 128, a; Br. Ab. "Covert, and Infant," pL 55, and see Hearle v. 
 Greenbank, 3 Atk. 710. 
 
 (e) Co. Lit. 88, b. (/) Co. Lit. 172, a. 
 
 (g) Co. Lit. 52, a; Br. Ab. "Covert, and Infant," pi. 55. 
 
 (A) 1 Watk. on Copyh. 24; and see Halliburton v. Leslie, 2 Hoo-. 252. 
 
 (i) Toller on Executors, 31. 
 ^ {k) Russell's case, 5 Re. 27, a; Co. Lit. 172, a: ib. 264, b; 1 Roll. Ab. 730,
 
 PARTIES TO THE CREATION OF A TRUST. 103 
 
 which kiud are powers communicated to trustees) if requiring the appli- 
 cation of prudence and discretion. (^) 
 
 With respect to an infant's ability to pass the estate, it seems to be 
 generally agreed that, at common law, a feoffment of lands,(m) or an 
 actual delivery of goods and chattels,(ft) is an act of so great solemnity, that 
 it serves to carry the present possession, and is voidable only, and not 
 void. 
 
 Where the property is of an incorporeal nature, as the delivery of the 
 thing itself is impossible, the common law has substituted the kindred 
 precaution of delivery of the deed. The effect of a deed delivered by an 
 infant has been much disputed; by some it has been held to be absolutely 
 null and void,(o) *by others to be voidable only,(p) and by others ^ ^^„ -. 
 again to be void or voidable, as the validity of the execution is L J 
 taken to be for the infant's benefit or not.(g') Another opinion still 
 (which is that of Perkins,(r) and was adopted in the case of Zouch v. 
 Parsons,(s) and may therefore be regarded as the doctrine of the present 
 day) is, that an infant's deed, where the delivery of it answers to the 
 livery of seisin, and operates as the conveyance of an interest, is merely 
 voidable ; but where it does not take effect as an assurance by delivery 
 of the hand, as in a power of attorney,(<) it is then actually void. Lord 
 Mansfield, however, subjoined the qualification, that if a case should arise 
 where it would be more beneficial to the infant that the deed should be 
 considered as void ; as, if he might incur a forfeiture, or be subject to 
 damage, or a breach of trust in respect of a third person, («) unless it was 
 deemed void, the reason of an infant's privileges would in such case war- 
 rant an exception from the rule.(i') 
 
 Where the instrument carries no solemnity icitli it, the validity of the 
 act must then depend on the question how far the assurance promotes 
 the interest of the infant. Thus in Humphreston's case,(ir) where a 
 minor had made a lease for years by parol, it was held by Justice Gawdy, 
 
 (l) See Grange v. Tiving, 0. Bridg. 109 ; Hearle v. Greenbank, 3 Atk. 695 ; S. 
 C. 1 Ves. 298. 
 
 (m) Thompson v. Leach, 3 Mod. 311, per Cur. ; Br. Ab. " Covert, and Inf." pi. 
 1 ; and see Co. Lit. 42, b. 51, b ; Wittingham's case, 8 Rep. 42, b ; Br. Ab. " Covert, 
 and Inf." pL 40. 
 
 (w) Perk. 14; Br. Ab. " Covert, and Inf." pi. 1. 
 
 (o) Br. Ab. " Covert, and Inf." pi. 1 and 10 ; Lloyde v. Gregory, Cr. Car. 502, 
 per Cur. ; Thompson v. Leach, 3 Mod. 310, per Cur. See observations on the 
 two last cases in Zouch v. Parsons, 3 Burr. 1806 and 1807 ; and see Humphreston's 
 case, 2 Leon. 216. 
 
 (p) Norton v. Turvil, 2 P. W. 145, per Sir J. Jekyll. 
 
 (q) See Zouch v. Parsons, 3 Burr. 1804 ; and see Humphreston's case, 2 Leon. 
 216 ; Lloyde v. Gregory, Cr. Car. 502; Nightingale v. Earl Ferrers, 3 P. W. 210. 
 
 (r) Sects. 12 and 154; and see Br. Ab. "Dum fuit infra <T?tatem," pi. 1; id. 
 "Covert, and Inf." pL 12; Stone v. Wythipole, Cr. El. 126; Marlow v. Pitfield, 
 1 P. W. 559. 
 
 (s) 3 Burr. 1807; confirmed by the recent case of Allen v. Allen, 1 Conn. & 
 Laws, 427, 2 Drur. k War. 307. 
 
 (t) See Br. Ab. " Covert, and Inf." pi. 1 ; Whittingham's case, 8 Rep. 45, a. 
 
 (m) Quaere if a court of law could notice a breach of trust. See Warwick v. 
 Richardson, 10 Mees. & Wels. 295. 
 
 (v) Zouch V. Parsons, 3 Burr. 1807. 
 
 (w) 2 Leon. 216; and see Lloyde V. Gregory, Cr. Car. 502, Co. Lit. 51, b; Grange 
 V. Tivingr, Sir 0. Bridg. 117.
 
 104 LEWIN OX THE LAW OF TRUSTS, ETC. 
 
 that, the lease having been made to try the title of the land, which was 
 a good consideration^ and to the profit of tJie infant, and for his advance- 
 ment, the lease was not void : but Justice Southcote and Chief Justice 
 Wray conceived that the lease being without rent, profit, or other recom- 
 pease, it was void ah initio for icant of a consideration ; *so 
 L J that all the judges agreed in making the infant's benefit the 
 criterion, though they difi'ered in the application of it to the particular 
 circumstances of the case. 
 
 Supposing the infant's assurance not to have been a nullity ah initio, 
 it is still in his power to defeat the act by a subsequent avoidance. 
 
 It is laid down, indeed, by Lord Mansfield, in Zouch v. Parsons,(j:) that 
 if an infant do a right act, which he ought to do, which he is compellahlc 
 to do, it shall bind him ; as if he make equal partition, if he pay rent, if 
 he admit a copyholder upon a surrender. And upon this principle the 
 court decided, in that case, that a mortgagee's infant heir, who had con- 
 veyed the trust estate by the mortgagor's direction, could not subse- 
 quently avoid it. But this determination seems open to objection ; for, 
 if the court proceeded on the ground that the conveyance was a right 
 and proper act, on principles of equity, such a doctrine would manifestly 
 confound the legal and equitable j urisdictions ; for, independently of the 
 trust, the avoidance had been efi"ectual, and if, on the equity of the case, 
 it was declared to be a nullity, the decree of the court amounted to a 
 precedent for granting equitable relief. But if the court considered the 
 infant as compellable to convey under the statute of 7 Amu. c. 19, this 
 appears not exactly the truth ; for the act is not imperative, but discre- 
 tionary ; it declares that it shall be lauful for the infant to convey ; and 
 the infant's assurance is to be made upon the direction of the Court of 
 Chancery or Exchequer ; so that a court of common law, in deciding 
 the validity of the infant's conveyance, assumed to itself that discretion 
 which the legislature had expressly delegated to one of the courts of 
 equity. Lord Mansfield in conclusion observed, that by this decision 
 circuity of suit was avoided ; for, if a court of law should declare the 
 conveyance inoperative, a court of equity would not hesitate to decree a 
 new conveyance. It was under cover of this plea that the legal and 
 equitable jurisdictions were in the last century almost confounded ; but 
 the tendency of the courts at the present day is to keep the jurisdictions 
 distinct. 
 
 r *39 1 *Another objection to an infant trustee is. that he cannot be 
 L -1 decreed to make satisfaction on the ground of a breach of 
 trust. (^) However, an infant has no privilege to cheat men,(.:) and 
 therefore he will not be protected, if he be old and cunning enough to 
 contrive a fraud. (a) 
 
 (x) 3 Burr. 1801. 
 
 {y) See Whitmore v. Weld, 1 Tern. 328 ; Russell's case, 5 Re. 27, a: Hindmarsh 
 v. Southgate, 3 Russ. 324. 
 
 (z) Evroy v. Nicholas, 2 Eq. Ca. Ab. A%Q,per Lord Kincr. 
 
 (a) See Cory v. Gertcken, 2 Mad. 40 ; Evroy y. Nicholas, 2 Eq. Ca. Ab. 488 : 
 Earl of Buckingham v. Drury, 2 Ed. Tl, V2 ; Clare v. Earl of Bedford, 13 Vin. 
 536; \\atts v. Cresswell, 9 Vin. 415; Beckett v. Cordley, 1 B. C. C. 358 ; Savage
 
 PARTIES TO TUE CREATIOX OF A TRUST. 105 
 
 From the great inconveniences attending the appointment of an infant 
 as trustee, there arises a strong presumption, wherever property is given 
 to an infant, that he is intended to take it beneficially. (5) 
 
 An alien may effectually be appointed a trustee in respect of chattels 
 personal, but not in respect of freeholds or chattels real. The policy of 
 the law will not allow an alien to sue or be sued touching lands in any 
 court, of law or equity ;(r) and on inquisition found, the legal estate of 
 the property would vest by forfeiture in the crown. 
 
 In a case where a testator devised real estate to his wife and an alien 
 upon trust to sell, and they sold accordingly, and executed a conveyance ; 
 a question afterwards arose whether the purchaser had a good title, and 
 with a view of curing the defect an Act of Naturalization was obtained : 
 but it was held, that the common form of the Act of Naturalization did 
 not confirm the purchaser's title retrospectively, but that the objection 
 remained. The parties had endeavoured to introduce into the bill spe- 
 cial words to meet the case, but a departure from the usual course was 
 found impracticable. (f?) 
 
 *If the alien be doniciled abroad, it is an objection to his fit- j- ^.^ -, 
 ness for the office of trustee, that he is not amenable to the juris- L -• 
 diction of the court. But where the personal property of a lady was 
 settled on her marriage with 2t, foreigner , who at the time of the mar- 
 riage was resident in England but domiciled in America, and the settle- 
 ment specially authorized an investment on American securities ; it was 
 held that the subsequent appointment of three Americans to be trustees, 
 in contemplation of a residence in America and of an investment upon 
 American securities, was justifiable. (e) 
 
 Bankrupts and insolvents may of course be appointed trustees, should 
 any one be disposed to commit the administration of his property to those 
 who have not been equal to the prudent management of their own. The 
 past or any subsequent act of bankruptcy or insolvency will have no 
 operation upon the trust estate. 
 
 Similarly, cestuis qui trust are not, as such, incapacitated from being 
 trustees ; though, as a general rule, they are not altogether fit persons 
 for the office, in consequence of the probability of a conflict between 
 their interest and that of some co-cestui que trust, in which event they 
 could hardly be expected to hold an even hand. So, although the pre- 
 sent Master of the Rolls considers it objectionable to appoint any relative 
 a trustee, from the frequency of breaches of trust committed by trustees 
 at the instance of cestui que trust nearly connected with them,(/) there 
 is no positive legal objection to appointing a relative. Indeed it is not 
 
 V. Foster, 9 Mod. 37 ; Overton v. Banister, 3 Hare, 503 ; Stikeman v. Dawson, 
 1 De Gex & Sm. 503 ; Wright v. Snowe, 2 De Gex & Sm. 321. 
 
 (6) Lamplugli v. Lamplugh, 1 P. W. 112; Blinkhorne v. Feast, 2 Ves. 30; 
 Mumma v. Mumma, 2 Vern. 19 ; Taylor v. Taylor, 1 Atk. 386 ; Smith v. King, 16 
 East, 283 ; and see King v. Denison, 2 V. & B. 278. 
 
 (c) Gilb. on Uses, 43 ; and see Fish v. Klein, 2 Mer. 431. See late act 7 & 8 
 Vict. c. 66. The exceptions in the 5th section enabling subjects of a friendly 
 state to hold lands for 21 years for purposes of residence, &c., cannot, of course, 
 apply to the case of a trustee. 
 
 (d) Fish V. Klein, 2 Mer. 431. (e) Meinertzhagen v. Davis, 1 Coll. 335. 
 (/) Wilding V. Bolder, 21 Beav. 222.
 
 106 LE WIN ON THE LAW OF TRUSTS, ETC. 
 
 always easy to find a trustee who is neitlier a relative nor a cestui que 
 trust, and this the court itself has experienced ; for notwithstanding its 
 repugnance, it has been obliged, occasionally, to appoint not merely a 
 relative, but even a cestui que trust to be a trustee. (^) 
 
 We may here remark, that care should be taken to provide not only 
 for the fitness of the trustee, but also for an adequate number of trustees. 
 A single trustee, whether originally appointed such or become so by sur- 
 vivorship, has the absolute and unlimited control over the property ; and 
 should he *become involved in difficulties, he is under a strong 
 L J temptation to sustain his credit by resorting to a fund of which 
 he can with certainty possess himself, and without the fear of immediate 
 detection. The fallacious hope of replacing the money before the day 
 of payment arrives, has lulled the conscience of many, not the worst of 
 mankind, when sufi'ering under the pressure of poverty. There can be 
 no objection to the appointment of a single trustee, where, as in uses to 
 bar dower, the trust reposed in him is merely a nominal confidence ; but 
 where the administration of the trust involves the receipt and custody of 
 money, the safeguard of at least two trustees ought never to be dispensed 
 with. And on the death of one of the original trustees, no time should 
 be lost in restoring the fund to its proper security by the substitution of 
 a new trustee, a precaution, it is feared, but too frequently neglected 
 from motives of delicacy, as the surviving trustee is sensitive, and con- 
 ceives his honesty is called into question : and the cestuis que trust, often 
 too ignorant of the world to see the necessity of taking precautions 
 against fraud, are apt to suspect their legal adviser of a wish to create 
 business at the expense of the estate. To guard against the constant 
 recurrence of appointment of new trustees, it is common, at least where 
 the property is considerable, to appoint, four trustees originally, for then, 
 on the decease of the first or even a second trustee, an immediate substi- 
 tution is not very material, but the safe rule is, to appoint three, and 
 keep the number always full. 
 
 More than four are hardly ever appointed, because it is a general 
 rule of the bank not to allow stock to be transferred into the names of 
 more than four joint proprietors. But in special cases, so many as five 
 or six have been admitted. 
 
 SECTION III. 
 
 WHO MAY BE CESTUI QUE TRUST. 
 
 It may be laid down as a general rule, that as cequitas sequitur legem, 
 those who are capable of taking the legal estate, may, through the chan- 
 nel of the trust, be made the recipients of the equitable. 
 r*42"l *'^ ^^"^* ^^y ^^ declared in favour of the Sovereign. While 
 uses were in their fiduciary state, it was held that in order eflFec- 
 tually to limit a use to the crown, the title must have been matter of 
 record. '< It behoveth," says Lord Bacon, '^ that both the declaration 
 
 {g) Ex parte Glutton, 17 Jurist, 988.
 
 PARTIES TO THE CREATION OF A TRUST. 107 
 
 of the use and the conveyance itself be matter of record, because the 
 king's title is compounded of both ; I say not appearing of record, but 
 by conveyance of record. And, therefore, if I covenant with J. S. to 
 levy a fine to him to the king's use, which I do accordingly, and the 
 deed of covenant be not enrolled, and the deed be found by office, the 
 use vesteth not. E converso, if enrolled. If I covenant with J. S. to 
 enfeofi" him to the king's use, and the deed be enrolled and the feoff- 
 ment also, and it be found by ofiice, the use vesteth not. But if I levy 
 a fine, or sufifer a recovery to the king's use, and declare the use by deed 
 of covenant enrolled, though the king be not a party yet it is good 
 enough. "(A) However, in trusts it is clear, that where the operation of 
 law, as in the case of hona vacantia, gives a right to the crown, that of 
 itself is sufficient ;(Q and perhaps it may be laid down generally that the 
 crown may now, in all cases, enforce an equitable interest in the same 
 manner as a private person. In Burgess v. Wheate,(/i;) Sir Thomas Clarke 
 was of this opinion, and apparently his colleagues. Lord Mansfield and 
 Lord Northington, concurred in the same view. He laid down that it was 
 the prerogative of the crown not to implead with the subject before it 
 took possession ; but that if the crown intended to take possession with- 
 out suit, it was necessary, in order to protect the subject and inform him 
 of the point in issue, that the foundation of the right in the crown 
 should appear upon record : but that the crown might waive the privilege 
 of taking possession before suit, and might seek the adjudication of the 
 court without previotis seizure : that an inquisition did not give a title 
 to the crown, even where the legal estate was in question, and indeed, as 
 to the equitable interest, was nugatory in itself. (A 
 
 *A trust of lands cannot be limited to a corporation without a r-^^ ao-\ 
 license from the crown ; both on general principles, and also by ■- J 
 analogy to the statutory enactment as to uses.(??i) 
 
 As regards an alien, a trust of lands may he declared mh\& favour,(«.) 
 but cannot be enforced by him for his own benefit •,{o\ it being contrary 
 to law that an alien should plead, or be impleaded, touching lands in any 
 court in the kingdom :(j>) and the king, on inquest found, will be enti- 
 tled to the trust by forfeiture, for the mischief is the same as if the 
 alien had purchased the lands themselves. (j) But the forfeiture vests 
 not in the king the legal estate, (?•) but merely transfers to him the right 
 
 (A) Bcac. on Uses, 60 ; and see Gilb. on Uses, 44, 204. 
 
 [i) Middleton v. Spicer, 1 B. C. C. 201 ; Brummell v. Macpherson, 5 Russ. 263. 
 
 {k) 1 Ed. 188. 
 
 \l) Burgess v. Wheate, 1 Ed. 187. 
 
 (m) See Shep. Touch. 509 ; Sand, on Uses, 339, note E; 15 Ric. II. c. 5. 
 
 [n) Dumoncel v. Dumonccl, 13 Ir. Eq. Rep. 92 ; and see Vin. ab. Alien, A. 8 ; 
 Godfrey v. Dixon, Godb. 275. See Br. Feff. al. Uses, 389, a, pi. 29. 
 
 (o) King V. Holland, Al. 16, per Bacon, J.; S. C. Styl. 21, per Rolle, J. See 
 Burney v. Macdonald, 15 Sim. 6. But of course the special exceptions in the 7 & 
 8 Vict. G. 66, s. 5, would apply to the case of an equitable interest. 
 
 [p) Gilb. on Uses, 43. 
 
 (q) Attorney-General v. Sands, Hard. 495, per Lord Hale ; Fourdrin v. Gowdey, 
 3 M. & K. 383. See Burney v. Macdonald, 15 Sim. 6. 
 
 (r) King v. Holland, Al. 14; Sir John Back's case, cited lb. 16; Attorney- 
 General V. Sands, Hard. 495, per Lord Hale.
 
 108 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 of suing a subpoena against the trustee in equity, (s) A distinction has 
 been taken, that although where a trust is perfected in favour of an alien 
 the crown may be entitled, yet where a trust in favour of an alien is not 
 in esse, but only m fieri and executory, the court will do no act to give 
 it to an alien, who, by law, cannot hold. (if) 
 
 In a recent case(«) it was decided, that where a testator directs an 
 estate to be sold, and the proceeds divided amongst certain persons, 
 some of whom are aliens ; there, as according to the intention which is 
 supposed to be executed at the time of the death, the interest devised, 
 is money, the crown is not entitled, for the mere purpose of working a 
 forfeiture, to exercise an election by retaining the property as land ; and, 
 therefore, that the aliens are not debarred from enjoying their 
 L J *leo^acies in the pecuniary character which the testator stamped 
 upon them. 
 
 It may be remarked, that in certain cases persons are capable of ta- 
 king an equitable interest, to whom the legal estate could not have been 
 similarly limited. Thus, at common law, no property, real or personal, 
 can be so limited to a married woman, as to exclude the legal rights of 
 the husband during coverture ; but, by way of trust, the benefical inter- 
 est can be placed entirely at the disposal of a married woman, so that 
 she shall be regarded as a feme sole, and the husband shall not partici- 
 pate in the enjoyment. And this may be effected even without the 
 interposition of a special trustee ; the only distinction being that, where 
 no trustee is interposed, the husband will, in respect of his legal rights, 
 be held by a court of equity to be a trustee for his wife,(f) and would, 
 it is conceived, be bound to deal with any legal interest vested in him 
 according to his wife's direction ; while, in the case of the legal interest 
 being vested in a trustee, the husband's concurrence in any act of alien- 
 ation or other dealing of his wife is wholly unnecessary. 
 
 So the legal estate cannot be limited to the objects of a charity, as to 
 the poor of a parish, in perpetual succession ; but in a court of equity, 
 where the feudal rules do not apply, the intention of the donor will be 
 carried into effect,(?i") provided of course the requisitions of the 9th G. 
 2, c. 36, be complied with. 
 
 It may here be observ'ed, that the act just referred to operates, not 
 by producing any incapacity to take as cestui que trust, but by forbid- 
 ding the alienation of land, or of property savouring of the realty, (ex- 
 cept in the mode prescribed by the act,) for objects falling within the 
 legal definition of charitable purposes. 
 
 {s) King V. Holland, Al. 16, per Rolle, J. ; Roll. Ab. 194, pi. 8. See Burney V. 
 Macdonald, 15 Sim. 6; Burgess v. Wheate, 1 Ed. 188. 
 
 (t) See Burney v. Macdonald, 15 Sim. 14. 
 
 (w) Du Hourmelin v. Sheldon, 1 Beav. 79, 4 Myl. & Cr. 525 ; and see Master v. 
 De Croismar, 11 Beav. 184. 
 
 (v) Newlands v. Paynter, 4 M. & Cr. 408 ; and compare Baggett v. Meux, 1 Coll- 
 yer, 188 ; 1 Phil. 627 ; and Waters v. Wood, 14 M. & W. 166. 
 
 (w) Gilb. on Uses, 204.
 
 WHAT PROPERTY MADE SUBJECT OF A TRUST. IQO 
 
 ^CHAPTER IV. [=''-i5] 
 
 "WHAT PROPERTY MAY BE MADE THE SUBJECT OF A TRUST. 
 
 As a general rule, all property, wlietlier real or personal, may be made 
 the subject of a trust, provided tlie policy of the law, or any statutory 
 enactment, do not prevent the legal proprietor from parting with the 
 beneficial interest in favour of another person. 
 
 As to lands regulated by a local custom, as copyholds, trusts may also 
 be created; thus, A., tenant of a manor, may surrender to the use of B. 
 and his heirs, upon trust for C. and his heirs. And as equity follows 
 the law, the trust in C. will devolve in the same manner as the legal 
 estate. It will descend for instance not to the heir-at-law, but the custo- 
 mary heir;(a;) and as the copyholder might, until the late act,(7/) have 
 devised the legal estate in the copyhold by a will, neither signed nor 
 attested, ih.^ cestui que trust might in like manner have passed the equit- 
 able interest by a will equally informal. (.-.) 
 
 The same principle would seem to require that where the legal estate 
 in copyholds was not devisable at all, (a) the cestui que trust should have 
 no power of intercepting by his will the descent of the equitable interest 
 upon the customary heir. The courts, however, have leaned strongly iu 
 favour of a power of testamentary disposition, notwithstanding the want 
 of a custom in respect of the legal estate. Thus in "Wilson v. Dent,(Z*j 
 A. surrendered to the use of B. in fee upon trust for A. for his life, and 
 after his death upon the trusts of his will. The ^custom of the ^ ^ . p -. 
 manor did not recognize any mode of passing the estate by will, L -^ 
 but the court nevertheless decided that the will operated as a testifica- 
 tion, for whose benefit the trustee was to hold the estate, and that the 
 surrenderee was a trustee for the devisees. 
 
 So in Lewis v. LanCj^c) a copyhold was granted by the lord to A., a 
 purchaser for valuable consideration, for the successive lives of himself 
 and B. A. in his lifetime could have passed the estate by surrender 
 for both lives, but lands held of the manor were not devisable ; and on 
 the death of A., without having surrendered, B., by the custom, could 
 claim admittance for his life. As A. had paid the purchase-money, B. 
 was held to be a trustee for him ; and as A. could not have devised the 
 legal estate, the question was whether his will served to pass the result- 
 ing trust. Lord Cottenham, then M. R., observed: "If there be an 
 equitable interest, how can it be that the owner has not the power of 
 devising it? Can it be said that if A. purchase in the name of B. and 
 pay the purchase-money, the property shall belong to B. and not to A. ? 
 
 (x) Trash v. Wood, 4 Myl. & Cr. 324. {y) 1 W. 4, & 1 Vict. c. 26. 
 
 (z) Appleyard v. Wood, Select Ch. Cas. 42 ; Wagstaff v. Wagstaff, 2 P. Will. 
 258 ; Tufifuell v. Page, 2 Atk. 37. 
 
 (a) As to the power of devising the legal estate, even before the late Wills Act. 
 see Pike v. White, 3 B. C. C. 286 ; Doe v. Thompson, 7 Q. B. Rep. 887. 
 
 (b) 3 Sim. 385. (c) 2 Mjl. & Keen, 449. 
 
 January, 1858. — 8
 
 110 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 I cannot agree that this is a question of custom at all, or that, if it were, 
 it would be reasonable." 
 
 If the custom of the manor permit an entail of the legal estate, an 
 entail may in like manner be created in the equitable ;((^) but if there 
 be no such custom as to the legal estate, there can be no entail of the 
 equitable. "The trust estate of a copyhold," said Lord Hardwicke, 
 '< can in no case be capable of an entail when the legal estate is not, it 
 being necessary that there should be the same rule concerning property 
 in law and in equity."(e) Where, therefore, the equitable interest in 
 lands held of a manor not permitting an entail is limited to A., and the 
 heirs of his body, the estate is not construed as an entail but as a fee 
 conditional, that is, on issue born the condition is fulfilled, and A. may 
 alienate in fee. 
 
 How far equitable interests may be engrafted on foreign property 
 requires consideration. As regards j^er.sona? estate *there is no 
 L J difficulty, for it follows the person, and if the settlor himself be 
 domiciled within the jurisdiction of the court, all his personal estate, 
 whether in the East or West Indies, or elsewhere, has no locality abroad, 
 but is deemed to be at home, and governed by the law of this country. 
 A trust, therefore, may freely be created of such interests, and would be 
 enforced in equity. In certain cases, however, there might be practical 
 obstructions in the way of executing the trust, from the circumstance of 
 the property lying in fact beyond the reach of the court. 
 
 As to lands lying in a foreign country, the court will unquestionably 
 enforce natural equities, and compel the specific performance of contracts, 
 provided the parties be within the jurisdiction, and there be no insuper- 
 able obstacle to the execution of the decree. 
 
 Thus in a West India estate, a tenant in common and consignee had 
 expended various sums in the management of the property ; an inquiry 
 was directed whether there was, by the local law or usage, a lien by a 
 consignee or tenant in common for proper advances to the estate, and 
 the master not finding any such lien for want of evidence before him. 
 Lord Eldon said " that the estate could not be carried on without a con- 
 signee, and that as the person intrusted had made no complaint, he 
 should allow the lien upon the application of general principles to estates 
 in the West Indies. (/) 
 
 In the leading case of Penn v. Lord Baltimore, ((/) the court enforced 
 certain articles between the parties, for ascertaining the boundaries of 
 two provinces in America ; and Lord Hardwicke observed, that as to 
 the courts not enforcing the execution of this judgment, if that were so, 
 it would be in vain to make a decree ; but though the court could not 
 enforce the decree in rem, it could in personam ; and though the decree 
 could not be enforced by putting the party in possession, yet it could be 
 by process of contempt, which had been originally the only jurisdiction 
 
 {d) Pullen V. Middleton, 9 Mod. Rep. 484 ; 1 Preston, Conv. 152. 
 
 (c) The opinion of Watkins, Treat, on Cop. p. 153, and following pages, that 
 there may be an entail of copyholds without a special custom, cannot be main- 
 tained. ' 
 
 (/) Scott V. Nesbit, 14 Ves. 438. (^) 1 Ves. 444.
 
 WHAT PRorEr.TY made subject of a trust. Ill 
 
 of the court, and known long before the writ of assistance to the sheriff; 
 and his lordship cited several precedents of a similar decree. (A) 
 
 *In other cases the court has directed an account of the rents ^ ^ , ^ .. 
 and properties of lands abroad,(i) and has ordered an absolute L J 
 sale,(7i) and foreclosure of a mortgage ■,(l) and has relieved against a 
 fraudulent conveyance of an estate abroad ;(m) and has prevented a 
 defendant by injunction from taking possession. (») 
 
 In Ex parte Pollard, a person entitled to lands in Scotland deposited 
 the deeds on a money advance. By the Scotch law the deposit did not 
 create a lien upon the land, though the transaction carried no illegality 
 with it. The bankruptcy judges held, that had the estate been in 
 England the decree would not only have affected the person, but have 
 bound the land; and as an estate in Scotland could not be affected by 
 the order of the court, specific performance, which was discretionary, 
 would not be decreed. (o) However, on appeal. Lord Cottenham over- 
 ruled this decision, and he observed that though the deposit by the law 
 of Scotland did not create any lien upon the estate, yet he did not find 
 anything in the Scotch law contrary to the well-known rule that obliga- 
 tions to convey perfected secundum legem domicilii, are binding against 
 the person : that contracts as to lands in England were enforced here in 
 personam and in rem, but as to contracts abroai in personam only, 
 which did not interfere with the lex loci rei sitce:(^p) that if the law of 
 the country where the land was situate would not permit or not enable 
 the defendant to do what the court might decree, it would be useless and 
 unjust to direct him to do the act ; but where there was no such impe- 
 diment the courts of this country, in the exercise of the jurisdiction over 
 contracts made here, or in administering equities between parties resid- 
 ing here, acted upon their own rules, and were not influenced by any 
 consideration of what the effect of such contracts might be in the country 
 where the lands are situate, or of the manner in which the courts of 
 such countries might deal with such equities. 
 
 *Thus the general rule to be collected is that the power of the r*jq n 
 court to administer equities or enforce contracts as to lands L J 
 abroad, extends as far as the actual ability of the parties to carry the 
 decree into effect. But should the foreign law pi*esent an insuperable 
 obstacle, the court will not make a decree which must be nugatory for 
 want of means to carry it out. 
 
 The case of Waterhouse v. Stansfield(g') will illustrate this distinction. 
 There Moody had contracted to purchase an estate in Demerara, and by 
 an indenture dated the 10th of October, 1846, mortgaged the premises 
 comprised in the contract to the plaintiffs, Waterhouse and Son, to secure 
 2000^. and interest : 1010/. was still due for the purchase-money, which 
 
 (h) See 1 Ves. 454; and see Roberdeau v. Rous, 1 Atk. 543; Angus t. Angus, 
 West's Rep. 23. 
 
 {i) Roberdeau v. Rous, 1 Atk. 543. (k) Roberdeau v. Rous, 1 Atk. 544. 
 
 (l) Toller V. Carteret, 2 Vern. 494. (m) Arglasse v. Muschamp, 1 Vern. 75. 
 
 («) Cranstown v. Johnston, 5 Yes. 278. 
 (o) Ex parte Pollard, 3 Mont. & Ayr. 340. 
 {/}) Ex parte Pollard, Mont. & Chitt. 239. 
 {(/) i) Uare, 234; 10 Hare, 254.
 
 112 
 
 LEWi:; oy the law of trusts, etc. 
 
 the plaintiffs, with Moody's consent, discharged, and thereupon the vendor 
 authorized his agent in Demerara to pass the estate to Moody orhismort- 
 gaf'ces. Before'this could be done, Moody, by an indenture of the 15th 
 of ^January, 1847, mortgaged the same premises to Thompson Hankey 
 and Co., to secure a debt owing to them, who sent instructions to their 
 a^ent in Demerara to effectuate their mortgage. An interdict was 
 obtained by him from the court of Demerara, to prevent the completion 
 of the plaintiffs' mortgage. On the 12th of 3Iay, 1847, Moody became 
 bankrupt, and his assignees sold the premises, and received the purchase- 
 moneys, and the plaintiffs now filed their claim, alleging themselves to be 
 equitable mortgagees of the premises, and to have a lien upon the pro- 
 ceeds. It appeared upon the evidence that a mortgage in Demerara could 
 only be by act of court, and that the intention of passing a mortgage must 
 be advertised for three successive Saturdays in the official Gazette, and 
 that every creditor had a right, by an interdict, to prevent his debtor, 
 solvent or insolvent, from .giving a preference by mortgage to any other 
 creditor. The Yice-Chancellor Turner held that the contract, indeed, 
 might bind the bankrupt and the assignees, and yet, by the law of Deme- 
 rara, might not be capable of being fulfilled ; that if it could be decided 
 in favour of the plaintiffs, it must be upon the broad and general ground 
 .^ -, that *the property having been sold, and the proceeds received 
 [ "'■'^ J by the assignees, the rights of the parties were no longer governed 
 by the law of Demerara, the lex loci ret sitm, but must be governed by 
 the law of this country, the Ux loci contractus ; but the vice-chancellor 
 was of opinion that the interest in the proceeds was in substance and 
 effect an interest in the estate itself, and therefore he could not allow the 
 lien upon the proceeds unless it existed by the law of Demerara; also 
 that the lien alleged by the plaintiffs for the part of the purchase-money 
 paid by them was equally a question of Demerara law ; and he therefore 
 directed inquiries whether the plaintiffs had, by the law of Demerara, any 
 lien upon the premises or the proceeds either under their mortgage or by 
 payment of the purchase-money. 
 
 To a similar principle may be referred the case of Carteret v. Petty. (r) 
 The bill was by a tenant in common for a partition of lands in Ireland, and 
 Lord Nottingham allowed a demurrer to the bill, on the ground that 
 when a defendant could, by personal coercion be compelled to perform the 
 act, the court would decree it, as the payment of money, making a con- 
 veyance, or the like; but where no obedience of the person imprisoned 
 could execute the decree, it was in vain to entertain the bill, and such 
 was this case, for to a partition in chancery it was necessary to award a 
 commission to some neighbouring justices to divide the lands, and if they 
 refused, an attachment lay against them ; but if they executed the com- 
 mission, the court decreed a conveyance, and the enjoyment of the lands 
 in the interim; and on disobedience followed a sequestration and injunc- 
 tion, and a writ of assistance to the sheriff", none of which could be 
 awarded into Ireland, nor be supplied by the obedience of the person 
 imprisoned here. The distinction between this case and Penn v. Lord 
 
 (r) 2 Swans. 323, note (a,) and 2 Ch.Ca. 214: but see Penn v. Lord Baltimore, 
 1 Yes. 444, and Belt's Supplement, and TuUoeh v. Hartley, 1 Y. & C. Ch. Ca. 114.
 
 "WnAT PROPERTY MADE SUBJECT OF A TRUST. 113 
 
 Baltimore, therefore, was, that iu the former the court was called upon 
 to make a, partition , a jurisdiction that could not be exercised, for the 
 reasons stated in the judgment; while in the latter the court compelled 
 the defendant to execute a contract, and do all ^necessary acts r:j:--| -i 
 for that purpose, and if he failed to comply he became liable to L J 
 a contempt. 
 
 Martin v. Martin(s) was a singular case, and is frequently cited. 
 Maria Martin, an infant, was entitled to considerable personal estate, and 
 to a moiety of a plantation iu Demerara. A suit was instituted for the 
 protection of her estate, and pending the suit, and during the infancy, 
 she intermarried, without the consent of the court, with Anthony Martin. 
 An order was made, referring it to the master to approve of a settlement 
 of her real and personal estate, and by an indenture of the 27th of 
 August, 1802, executed with the sanction of the court, Maria 3Iartin 
 assigned her personal estate to trustees upon trust, after raising a certain 
 sum therein mentioned, to lai/ out the trust estate in government or real 
 securities for her separate use during the coverture, and if she survived 
 her husband, upon trust as to one moiety for her absolutely ; and as to 
 the other moiety, upon trust for the children of the marriage, and if no 
 children, for her absolutely; but if she died in the life-time of her hus- 
 band, upon trust, as to one moiety, for the husband for life, and subject 
 thereto, upon trust as to the whole, for the children, and if no children, 
 for the husband for life, and after his death upon trust as the wife should 
 appoint, or for her next of kin. And as to the Demerara estate, the 
 husband covenanted, and the wife agreed, that it should be conveyed to 
 the trustees upon the like trusts as were before declared concerning the 
 trust moneys, and the stocks, funds, and securities in which the same 
 should be invested, and that the plantation should be considered as per- 
 sonal estate, and that until the conveyance, the rents should be applied 
 in like manner as if the assurance had been actually made. In 180G, A. 
 Martin, and his wife who had now attained the age of twenty-one, pur- 
 ported to convey the Demerara estate to the trustees of the settlement, iu 
 pursuance of the articles. Subsequently, 3Iartin and his wife passed the 
 estate, by an act of court in Demerara, to a mortgagee, for securing 
 advances by him for the benefit of the wife and children, and supplies to 
 the estate. Mrs. 3Iartin afterwards filed her bill to set aside the ^ ^.., -. 
 *mortgage, and have the articles and settlement established. It •- " -■ 
 was found by the master, that by the law of Demerara there was no mode 
 of settling property upon the wife and children ; that the conveyance of 
 1806 was inoperative, inasmuch as lauds in Demerara could only be passed 
 by an act of court, and that the legal estate was in the mortgagee; that, 
 by the law of Demerara, there was besides a lien upon the property for 
 moneys allowed to a wife and her children, and for supplies to the estate. 
 For the plaintiff, it was argued that, under the articles, the Demerara 
 estate ought to have been sold, and converted into money, and invested 
 upon the trusts of the settlement, and that the mortgagee, having notice 
 of the settlement, was bound by the equity. However, the court decided 
 
 {s) 2 Russ. & Myl. 507.
 
 114 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 that the plaintiff had no equity against the mortgagee, though he had 
 notice, for, assuming that the plaintiff could compel a sale, it must be 
 subject to the prior lien found by the master for advances to the wife 
 and children, and supplies to the estate. Had the lien not existed, the 
 court thought the plaintiff might have compelled a sale as against the 
 husband, but that such equity attached not to the estate, but to the per- 
 son only : that after the institution of a suit, the equity would have 
 bound the estate, but until bill filed, the husband could make a good title 
 even to a purchaser with notice ; and the court instanced the case of a 
 husband, the apparent owner of two estates of equal value, and that he 
 made a settlement of estate A. under the direction of the court, and that 
 the trustees were afterwards evicted by defect of the husband's title : in 
 that case the court would oblige the husband to make a settlement of B., 
 but that until the bill was on the file the husband remained the owner 
 of estate B., and could effectually sell or charge it.((;) 
 
 The decree in the above case may be supported on the single ground 
 of the mortgagee's lien for advances and supplies, but the distinction 
 taken by the court that the articles could have been enforced against the 
 husband himself, but did not bind a purchaser from him with full notice, 
 r *Kq -I appears to be a *somewhat refined and subtle distinction, and 
 L -J scarcely in harmony with Ex parte Pollard and other cases. 
 
 A question still remains how far trusts not constructively but properly 
 such can be applied to lands abroad. Should the foreign law itself re- 
 cognize the distinction between the legal and equitable estates, there 
 could be no objection to the execution of trusts here corresponding to 
 those allowed abroad. Should an equitable estate be not known to the 
 foreign law, still should the lands be capable of settlement there, a trust 
 might be legitimately created here, analogous to the limitations permitted 
 by the foreign code. But should the lex loci neither permit an equita- 
 ble estate, nor successive limitations of the legal estate, it could hardly 
 be contended that an English settlement by way of trust could be 
 ingrafted. The law applicable to lands in England has a local character, 
 and the courts act upon the principle that land universally must be 
 governed by the law of the country where it is situate. How then could 
 a system adapted exclusively to lands in England be transplanted and 
 affixed to lands abroad ? Could entails, for instance, be created where 
 none are allowed, and if created, by what machinery could they be 
 barred ? It has been seen that in the case of copyholds, when the cus- 
 tom of the manor does not allow entails of the legal estate, none can be 
 created of the equitable, and the same principle will apply to trusts of 
 foreign lands. 
 
 The few authorities upon the subject are in accordance with this view. 
 In Martin v. Martin, (?<) cited above, it will be observed that though the 
 court was of opinion that, under the marriage contract, the Demerara 
 estate might have been sold and the trusts attached to the proceeds, it 
 
 {t) As to personal equities, see further, Morse v. Faulkner, 1 Anst. 11. 3 Sw. 
 429 note (a ;) Averall v. Wade, LI. & Go. temp. Sugden. 261 ; Johnson v. Holds- 
 worth, 1 Sim.N. S. 108. i & , ; 
 
 (?«) 2 Russ. & Myl. 507.
 
 WHAT PROPERTY MADE SUBJECT OF A TRUST. 115 
 
 did not occur either to the bar or the bench that the legal estate could 
 be held upon the trusts of the settlement without a conversion. 
 
 Again, in Glover v. Strothoff,(i') a testatrix had taken a heritable bond 
 charged upon lands in Scotland in the names of trustees upon trust for 
 her, and by her will executed according to the Statute of Frauds, she 
 devised the heritable bond, and the question was whether the will was 
 not inoperative. *The heir insisted that by the law of Scotland ^ ^r. -, 
 a heritable bond was not devisable. Lord Thurlow asked, <' Is L J 
 not the bond on a trust ?" but it was answered that the trust was a 
 scheme to get rid of the lex loci, and eventually the court directed an 
 inquiry whether by the law of Scotland the heritable bond had passed 
 by the will. 
 
 In Nelson v. Bridport,(«5) Viscount Nelson, being entitled to the 
 duchy and estate of Bronte, in Sicily, by his will appointed W. Nelson 
 and W. Hazlewood to succeed to the duchy and estate, and devised the 
 same to them accordingly, upon trust nevertheless to settle and convey 
 the premises to the uses and upon the trusts thereinafter mentioned, if 
 the law of Sicily would permit, and if not, then in such manner as in 
 the discretion of his trustees would best correspond with the purposes 
 thereinafter mentioned j that was to say, to the use of W. Nelson for 
 life, with remainder to his first and other sons in tail, with remainder to 
 Mrs. Bolton for life, with remainder to her first and other sons in tail, 
 with remainders over, and the testator empowered his trustees, at their 
 toill and pleasure, to sell the Bronte estate and invest the proceeds in 
 the purchase of lands in England, Ireland, or Wales, to be settled to the 
 like uses, and if the testator's iiitention could he better accomplisTiecl 
 through the medium of a trust than an actual settlement, he authorized 
 the trustees to retain the legal estate until the trusts could he performed, 
 and to apply the rents accordingly. It appeared that the duchy had 
 been granted to Viscount Nelson, so that he or the heirs lawfully 
 descending of his body, or from the person whom he should nominate as 
 after mentioned, should be Dukes of Bronte and hold the duchy accord- 
 ing to the law of the Franks ; and the charter gave him a power to 
 nominate whom he would, whether a relative or not, as a person to whom 
 the like investiture should be granted. On the death of Viscount Nel- 
 son, William Nelson, one of the trustees and tenant for life^ received in- 
 vestiture as Duke of Bronte, and some years afterwards, a law having 
 passed in Sicily enabling the alienation of entailed estates, William 
 devised the property to his daughter. Lady Bridport, who, on his death, 
 entered upon possession. ^Plaintiff" being the person entitled r^^^-i 
 under the limitations in the will of Viscount Nelson, filed his L J 
 bill against Lady Bridport for the recovery of the estate. There was 
 great conflict of evidence as to the law of Sicily, but the court came to 
 the conclusion that the trustees could not have settled the estate in strict 
 accordance with the will, and that the investiture of William Nelson, 
 the first tenant for life, was the nearest approach that could be made to 
 the settlement, and that the absolute ownership conferred by the subse- 
 
 {v) 2 B. C. C. 33. (w) 8 Beav. 547.
 
 116 LEAVIN ON THE LAW OF TKUSTS, ETC. 
 
 quent law did not vary the rights of the parties, and, therefore, that 
 William Nelson, having lawfully received investiture in the first instance, 
 could afterwards dispose absolutely of the estate in favour of his daughter. 
 William Nelson was regarded as having acquired the legal estate under 
 the will in execution of the power conferred by the charter, but the 
 court apparently assumed throughout that English trust would have no 
 effect upon a Sicilian estate ; and the Master of the Rolls observed, 
 <' The incidents to real estate, the right of alienating or limiting it, and 
 the course of succession to it, depend entirely on the law of the country 
 where the estate is situated. Lord Nelson having accepted this Sicilian 
 estate could deal with it only as the Sicilian law allowed ; he had a right 
 to appoint a successor, but no right to modify the estate, interest, or 
 or power of disposition to which the successor was entitled by the law of 
 Sicily."(a;) 
 
 [*56] *CHAPTEIl V. 
 
 OF THE FORMALITIES REQUIRED FOR THE CREATION OF A TRUST. 
 
 Upon this subject we propose to treat, First, Of declarations of trusts 
 at common law. Secondly, Of the Statutes of Frauds. Thirdly, Of the 
 Statutes of Wills. And Fourthly, Of transmutation of possession. 
 
 SECTION I. 
 
 OF TRUSTS AT COMMON LAW. 
 
 Trusts like uses are of their own nature averrable, i. e., may be de- 
 clared by word of mouth without writing ;(«) as, if before the Statute of 
 Frauds an estate had been conveyed unto and to the use of A. and his 
 heirs, a trust might have been raised by parol in favour of B.,(6) and 
 since the statute, though in respect of lands a trust cannot be declared by 
 mere parol, no other formality is requisite than a simple note in writing 
 not under seal.(c) 
 
 But the court, following the analogy of uses, will not permit the aver- 
 ment of a trust in contradiction to any expression of intention on the 
 face of the instrument itself. (c?) 
 
 (x) 8 Beav. 570. 
 
 (a) See Fordyce v. Willis, 3 B. C. C. 587 ; Benbow v. Townsend, 1 M. & K. 
 506; Bagley v. Boulcott, 4 Russ. 347; Crabb v. Crabb, 1 M. & K. 511; Kilpin v. 
 Kilpin, Id. 520. 
 
 (b) See Bellasis v. Compton, 2 Vern. 294; Fordvce v. Willis, 3 B. C. C. 587 ; 
 Thruxton v. Attorney-General, 1 Vern. 341. 
 
 (c) Adlington v. Cann, 3 Atk. 151, per Lord Hardwicke ; Boson v. Statham, I 
 Ld. a 13, per Lord Keeper Henley. 
 
 3 bV^C^^^ ^" ^^^^^' ^ ^^" ^^^" '^^' ^'^^^^'^ '=^^^' ^ ^^s^- ^^> Fortlyce v. Willis,
 
 I 
 
 FORMALITIES REQUIRED TO CREATE A TRUST. HJ 
 
 Nor is it necessary in order to exclude averment that the beneficial 
 ownership should be conferred upon the grantee of the legal estate 
 
 expressly, for a trust cannot be raised by *parol, if, from the ^ ^ . 
 
 nature of the instrument, or ani/ circumstance of evidence appear- L J 
 ing on the face of it, an intention of making the legal holder the bene- 
 ficiary also, can be clearly implied. Thus a trust cannot be averred, 
 where a valuable consideration is paid •,[e\ and if a pension from the 
 crown be granted to A., a trust cannot be raised by parol in favour of 
 B. ; for a pension is conferred upon motives of honour, and the induce- 
 ments to the bounty are the personal merits of the annuitant.(/) 
 
 And it was a principle of uses, that, on di feoffment, which could be 
 made by parol, a use might be declared by parol; but where a deed was 
 necessary for passing the legal estate, there the use which was ingrafted 
 could not be raised by averment.((7) As trusts have been modelled after 
 the likeness of the use,(7A the distinction at the present day may deserve 
 consideration. It is laid down by Duke expressly, that, where the things 
 given may pass vnthoxit deed, there a charitable use may be averred by 
 witnesses} but, where the ihin^?, cannot p)ass icithout deed, there charita- 
 ble uses cannot be averred without a deed proving the use.(/) And 
 Lord Thurlow, it is probable, alluded to the same distinction when he 
 observed, " I have been accustomed to consider uses as averrable, but 
 perhaps when looked into, the cases may relate io feoffment, not to con- 
 veyances by bargain and sale, or lease and release. 'V") And in Adling- 
 ton V. Cann,(A') where a testator devised the legal estate in lands to A. 
 and B. and their heirs by a will duly executed, and left an unattested 
 paper referring to trusts for a charity, Mr. Wilbraham in the argument 
 observed, << If this were a voluntary deed, would a j^ciper, even declaring 
 a trvTst, be sufficient to take it from the grantee? no, certainly ;"(/) and 
 it is very observable that Lord Hardwicke, in *referring to this r >^rQ -■ 
 observation, excludes the case of a deed, and lays it down that L -' 
 " if the testator had made z feoffment to himself and his heirs, and left 
 such di paper, this would have been a good declaration of trust."(w) 
 
 The averment of a trust was never permitted as against a devisee. A 
 devise, as was resolved in Vernon's case, implies a consideration, and 
 therefore cannot be averred to the use of another ;(?)) for that, observes 
 Lord Chief Baron Gilbert, were an averment contrary to the design of 
 the will appearing in the words ;(o) and accordingly in Lady Portington's 
 case,(2)) the Court of Queen's Bench refused to admit evidence against 
 the devisees, both from the Statute of Frauds and aho from the nature 
 of the thing. It is laid down, indeed, by Jenkins, that an averment 
 
 (c) See Gilb. on Uses, 51, 57; Pilkington v. Bayley, 7 B. P. C. 526. 
 
 (/■) Fordyce v. Willis, 3 B. C. C. 587. {g) Gilb. on Uses, 270. 
 
 (X) See Fordyce v. Willis, 3 B. C. C. 587 ; Lloyd v. Spillet, 2 Atk. 150; Attor- 
 ney-General V. Lockley, Append, to Vend. & Purch. No. 16, 11th ed.; Chaplin v. 
 Chaplin, 3 P. W. 234; Attorney-General v. Scott, Rep. t. Talb. 139; Burgess v. 
 Wheate, 1 Ed. 195, 217, 248 ; Geary v. Bearcroft, Sir 0. Bridg. 488. 
 
 {i) Duke, 141. (/) Fordyce v. Willis, 3 B. C. C. 587. 
 
 [k) 3 Atk. 141. (/) lb. 145. 
 
 (m) 3 Atk. 151. (?i') 4 Rep. 4, a. 
 
 (o) Gilb. on Uses, 162. [p) 1 Salk. 162.
 
 118 LEWIN ON THE LAW OF T K U S T S, ETC. 
 
 onight be at common law upon a will, though it was in writing ; but his 
 only authority in support of this position is a case that has evidently 
 been mistaken. "A devise," he says (by the custom of London before 
 the Statute of Wills,) ''was to A., B., and C, and that A. should have 
 all the profits during his life. Upon a suit in chancery by the heir of 
 A., the trust of this land was averred to be reposed in the said A., B., 
 and C, to the use of A. and his heirs; and it was so proved. The 
 chancellor made a decree, by the advice of the judges, that A. being 
 dead, his heir should have the \and."{q) But the case, as stated by 
 ritzherbert,(r) from whom it is cited by Jenkins, involved a very 
 different question. A citizen of London had devised to his son and three 
 others, and his will was that one of the three should have the profits for 
 life. The cestui que trust for life died, and the heir (viz. of the testator, 
 and not of the cestui que trust) filed his bill in chancery as entitled to 
 the resulting interest, and prayed a conveyance. It was argued for the 
 trustees, that in a feoffment the use would have resulted ; but in a will 
 the devisees were intended to take every beneficial interest, that was not 
 expressly disposed of from them. But the court refused to recognize 
 the distinction, and decreed a resulting trust to the testator's heir. 
 r*p.O n Upon the same principle the averment of a trust was always 
 L J ^inadmissible as against a legatee, and though the law for a long 
 time fluctuated in respect of an executor claiming the surplus of the 
 personal estate,(s) it was at length determined that even the executor's 
 beneficial title could not be defeated by parol. Upon the latter point 
 the following distinctions were observed : — 1st. Where a person was 
 simply appointed executor, which conferred upon him a legal title to 
 the surplus, averment was not admissible to make him a trustee for the 
 next of kin.((') 2dly. If from any circumstance appearing on the face 
 of the will, as the gift of a legacy to the executor, the law presumed he 
 was not intended to take the surplus beneficially, the executor was at 
 liberty to rebut that presumption by the production of parol evidence,(«) 
 and of course the next of kin might then fortify the presumption by 
 opposing parol evidence in contradiction. But, Sdly. Where the will 
 itself invested the executor with the character of trustee, as by giving 
 him a legacy "for his trouble," or by styling him a " trustee" expressly 
 the prima facie title to the surplus was then in the next of kin, and 
 parol evidence was not admissible to disprove the express intention. (r) 
 
 By the late Act 11 G. 4, & 1 W. 4, c. 40, an executor \?, prima facie 
 a trustee for the next of kin.(?/') But where there are no next of kin 
 the title of the executor, as against the croicn, is not affected by the 
 statute, but he may still take beneficially. 
 
 (?) Jenk. 3 Cent. Ca. 26. (r) Fitzherb. Ab. Devise, 22. 
 
 (s) See Povey v. Juxon, Nels. 135; Fane v. Fane, 1 Vern. 30. 
 
 (<) Langham v. Sandford, 19 Ves. 644, per Lord Eldon : White v. Williams. 3 
 V. & B. •?2 ; S. C. Coop. 58. 
 
 (m) Walton V. Walton, 14 Ves. 322, per Sir W. Grant. 
 
 {v) Rachfield v. Careless, 2 P. W. 158 ; Langham v. Sandford. 17 Ves. 435 ; S. 
 C. 19 Yes. 641 ; Golding v. Yapp, 5 Mad. 59 ; White v. Evans, 4 Ves. 21 : Walton 
 Y. Walton, 14 Yes. 322, per Sir W. Grant. 
 
 (w) See Love v. Gaze, 8 Beav. 472.
 
 FORMALITIES REQUIIIED TO CREATE A TRUST. 119 
 
 The declaratioa of a use by the Jcing must have been by letters- 
 patent ;(x) and it seems the same doctrine is now applicable to trusts. (y) 
 Nor could a use have been declared to the king in the ordinary mode. 
 The king, says Chief Baron Gilbert, " cannot have a feoffee to his use, 
 because he cannot take but by matter of record ; but, if the use he found 
 hy office upon record, then he may take."(2;) However, Lord Bacon 
 *seems to have thought, that the purpose of the inquest was not ^ ^-.^ -. 
 to make, but to find the title ; for he says, " It behoveth both L J 
 the declaration of the use, and the conveyance itself to be matter of 
 record, because the king's title is compounded of both. "(a) 
 
 SECTION II. 
 
 OF THE STATUTE OP FRAUDS 
 
 By the seventh section of the Statute of Frauds(Z>) it is enacted, that 
 " all declarations or creations of trusts or confidences of any lands, tene- 
 ments, or hereditaments, shall be manifested andprovedhj some loriling, 
 signed by the party who is by law enabled to declare such trust, or by 
 his last will in writing, or else they shall be utterly void and of none 
 efi"ect." 
 
 Upon the subject of this enactment we shall first briefly point out 
 what interests are within the act, and, secondly, what formalities are 
 required by it. 
 
 1. Of the interests loithin the act. 
 
 Copyholds are to be deemed within the operation of the clause, for, as 
 a trust is engrafted on the estate of the copyhold tenant, the rights of 
 the lord, who claims by title paramount, cannot in any way be injuriously 
 afieeted.(c) A trust, therefore, cannot be declared by parol so as to 
 make the copyholder a trustee for another. 
 
 Mr. Hargrave seems to have thought, that even the iises of a surrender 
 were trusts within the intention of the act ; for, in a note to Coke on 
 Littleton he observes, " A nuncupative will of copyholds was a valid 
 declaration of the uses, where the surrender was silent as to the form, 
 till the 29 Car. 2, required all declarations of trusts to be in writing."(l) 
 But the surrender *of a copyhold to uses is merely a direction to j- 5,,^, -■ 
 the lord in what manner to regrant the estate, and the surrenderee L J 
 is a cestui que use by misnomer only, and not in fact; and indeed the 
 Court of Queen's Bench has expressly decided that uses of copyholds 
 
 (2) Bacon on Uses, 66. 
 
 If) Fordjce v. Willis, 3 B. C. C. 577. (z) Gilb. on Uses, 44, 204. 
 
 (a) Bacon on Uses, 60. (6) 29 Car. 2, c. 3. 
 
 (c) See Withers v. Withers, Amb. 151 ; Goodright v. Hodges, 1 Watk. on Cop. 
 227 ; S. C. Lofft. 230; Acherley v. Acherley, 7 B. P. C. 273 ; but see Devenish v. 
 Baines, Pr. Ch. 5. 
 
 (1) Mr. Watkins argues, and apparently both on principle and authority (see 
 Devenish v. Baines, Pr. Ch. 3,) that a nuncupative will of copyholds was effectual. 
 1 Wat. Cop. 130. Now by the late Will Act (1 Vict. c. 26,) copyholds have been 
 put on the same footing with other property.
 
 120 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 are not within the Statute of Frauds, on the ground that a surrender to 
 uses is not the creation of a trust or confidence apart from the legal estate, 
 but a mode established by custom of transferring the legal estate itself.((/) 
 
 Chattels real are within the purview of the act, and a trust of them 
 must therefore be evidenced by writing as in the case of freeholds. (e) 
 
 But chattels personal are not within the act, and a trust by averment 
 will be supported. (/) It has even been held that a sum of money se- 
 cured upon a mortgage of real estate, is not an interest within the act, 
 and that a parol declaration is good.((7) And if a trust be once created 
 by parol declaration, it cannot be affected by any subsequent parol de- 
 clarations of the settlor.(/i) 
 
 An attempt was formerly made to have a charitahle use excepted 
 from the statute, but Lord Talbot decreed, (i) and Lord Hardwicke 
 affirmed the decision, (y) and Lord Xorthington said every man of sense 
 must subscribe to it, (A;) that a gift to a charity must be treated on the 
 same footing with any other disposition. 
 
 r*fi91 Lady Portington's case(/') it was held by the Court of 
 
 L J Queen's Bench, that the crown was bound by the Statute of 
 Frauds, and therefore was not at liberty to prove a superstitious use by 
 parol ; but in the Court of Exchequer it was ruled, on the contrary, that 
 the Statute of Frauds did not bind the crown, but took place only be- 
 tween party and party. Lord Hardwicke expressed his doubts upon the 
 latter doctrine, that the crown is not bound by a statute unless specially 
 named; but at the same time mentioned a case in which that doctrine 
 had been followed. (m) 
 
 It seems the statute will not apply to lands situate in a colony planted 
 before the Statute of Frauds was passed. (h) Planters carry out with them 
 their own laws as they were subsisting at that time; but subsequent 
 enactments at home will not follow them across the seas, unless it be so 
 specially provided. A fortiori the Statute of Frauds will not affect 
 foreign lands not subject to the crown of England. 
 
 If a bill be filed to have the benefit of a parol trust of lands, is a de- 
 fendant, who would rely on the Statute of Frauds as a bar, bound to 
 
 {d) Doe V. Danvers, 7 East, 299. 
 
 (e) Skett V. Whitmore, Freem. 280 ; Foster v. Hale, 3 Yes. 696 ; Riddle v. 
 Emerson, 1 Vern. 108; and see Hutchins v. Lee, 1 Atk. 447: Bellasis v. Compton, 
 2 Vern. 294. 
 
 (/) Bayley v. Boulcott, 4 Russ. 347, per Sir J. Leach ; M'Fadden t. Jenkyns, 
 1 Hare, 461, per Sir J. Wigram ; S. C. 1 Ph. 157, per Lord Lyndhurst ; Thorpe v. 
 Owen, 5 Beav. 224 ; George v. Bank of England, 7 Price, 646 ; Hawkins v. Gar- 
 dener, 2 Smale & Gif. 451, per V. C. Stuart ; Fordyce v. Willis, 3 B. C. C. 587, 
 per Lord Thurlow; Benbow v. Towusend, 1 M. & K. 510, per Sir J. Leach; Fane 
 V. Fane, 1 Vern. 31, per Lord Nottingham ; Nab v. Nab, 10 Mod. 404. But this 
 case, as reported 1 Eq. Ca. Ab. 404, appears an authority the other way. 
 
 {g) Benbow v. Townsend, 1 M. & K. 506; and see Bellasis v. Compton, 2 Vern. 
 
 (A) Kilpin V. Kilpin, 1 M. & K. 520, see 539 ; Crabb x. Crabb, 1 M. & K. 511. 
 («) Loyd V. Spillet, 3 P. W. 344. 
 
 (y) S. C. 2 Atk. 148; S. C. Barn. 384; and see Adlington v. Cann, 3 Atk. 150. 
 (A) Boson V. Statham, 1 Ed. 513. 
 
 1^\^!",^.'^- Poi'tingtoQ, 1 Salk. 162 ; and see Adlington v. Cann, 3 Atk. 146. 
 
 {m) Adhugton v. Cann, 3 Atk. 154. 
 
 («) See 2 P. W. 75 ; and see Gardiner v. Fall, 1 J. & W. 22.
 
 FORMALITIES REQUIRED TO CREATE A TRUST. 121 
 
 plead it ? The analogy of the section of the same statute relating to 
 contracts touching interest in lands, would lead to the inference that to 
 a bill for the execution of a parol trust, the defendant must plead the 
 statute or he will be deemed to waive the bar. The point, however, 
 remains to be decided. (o) 
 
 2. What formalities are required hy the statute. 
 
 The principal point to be noticed is, that trusts are not necessarily to 
 be declared in writing, but only to be manifested and proved hy writing ; 
 for, if there be written evidence of the existence of such a trust, the 
 danger of parol declarations, against which the statute was directed, is 
 effectually removed. (p) It may be questioned whether the act did not 
 intend that the ^declaration ;Vse{/' should be in writing ; for the ^^ ^g -, 
 ninth section enacts, that " all grants and assignments of any trust L J 
 or confidence shall likeicise he in writing, signed by the party granting 
 or assigning the same, or by such last will or devise ;"(^) but, whatever 
 may have been the actual intention of the legislatvire, the construction 
 put upon the clause in practice is now firmly established. 
 
 The statute will be satisfied, if the trust can be manifested by any 
 subsequent acknowledgment of the trustee, as by an express declaration 
 by him,(r) or any memorandum to that effect,(s) or by a letter under his 
 hand,(f) by his answer in chancery,(ii) or by a recital in a bond,(«) or 
 deed,(2f) &c. ; and the trust, however late the proof, takes effect from 
 the creation of the trust. Even where a lease was granted to A., who 
 afterwards became bankrupt, and then executed a declaration of trust 
 in favour of B., a jury having found upon an issue directed from chan- 
 cery that A.'s name was hona fide used in the lease in trust for B., it 
 was held the assignees of A. had no title to the property. (.t) In another 
 case, on the marriage of Lord Windsor with Miss Tovey, certain estates 
 of his lordship, called Breedon and Redmarley, were omitted from the 
 settlement with a view of selling them and purchasing others more con- 
 venient, which when purchased were to be settled. About the same 
 time Lord Windsor, by Emes, his agent, contracted for the purchase of 
 the manor of Bromsgrove, and Lord Windsor and Emes bound them- 
 selves to pay the purchase-money. The conveyance was made to Lord 
 
 (o) See Cottington v. Fletcher, 2 Atk. 155 ; Wood v. Midgley, 5 De Gex. M. k 
 G. 41. ^ ^ 
 
 {p) Forster v. Hale, 3 Ves. T07, per Lord Alvanley ; S. C. 5 Yes. 315, per Lord 
 Loughborough. 
 
 {q) i. e. A will executed in conformity with section 5. Note that Crooke v. 
 Brooking, 2 Yern. 50, 106, was before the Statute of Frauds. 
 
 (r) Ambrose v. Ambrose, 1 P. W. 321 ; Crop v. Norton, 9 Mod. 233. 
 
 (s) Bellamy v. Burrow, Rep. t. Talb. 97. 
 
 (t) Forster v. Hale, 3 Yes. 696; S. C. 5 Ves. 308; Morton v. Tewart, 2 Y. & C. 
 Ch. Ca. 67; Bentley v. Mackay, 15 Beav. 12; Smith t. Wilkinson, cited 3 Yes. 
 705 ; O'Hara v. O'Neill, 7 B. P. C. 227 ; and see Gardner v. Rowe, 2 S. & S. 354. 
 
 (?/) Hampton v. Spencer, 2 Yern. 288 ; Nab v. Nab, 10 Mod. 404 ; Cottington v. 
 Fletcher, 2 Atk. 155 ; Ryall v. Ryall, 1 Atk. 59, per Lord Hardwicke; Wilson v. 
 Dent, 3 Sim. 385. A bill differs from an answer, as it is not sif/ned by the party. 
 See, however, Butler v. Portarlington, 1 Conn. & Laws. 1. 
 
 (v) Moorcroft v. Dowding, 2 P. W. 314. 
 
 (iv) Deg V. Deg, 2 P. W. 412. 
 
 (x) Gardner v. Rowe, 2 S. & S. 346; S. C. affirmed. 5 Russ. 258.
 
 122 
 
 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 Plymoutli, who *paid the purchase-money himself, and raised it 
 [*^^] by a mortgage of his property. Two years afterwards, Lord 
 Windsor raised the same sum by a mortgage of Breedon and Broms- 
 grove, and paid it to Lord Plymouth, who signed a receipt for it. Lord 
 Plymouth devised Bromsgrove for payment of his debts, but it was held 
 that a trust for Lord Windsor was sufficiently proved within the Statute 
 of Frauds. Creditors, the court said, are favourites, but we must not 
 pay them out of other men's estates ; nor, as Justice Twisten was wont 
 to say, steal leather to mahe poor men shoes. {>/) 
 
 But with regard to letters and loose acknowledgments of that kind, 
 the court expects demonstration that they relate to the subject-matter ;(s) 
 nor will the trust be executed if the precise nature of the trust cannot 
 be ascertained ;{a) and if the trust be established on the answer of the 
 trustee, the terms of it must be regulated by the whole answer as it 
 stands, and not be taken from one part of the answer to the rejection 
 of another ■,[b) and the plaintiff, if he read the answer in proof of the 
 trust, must at the same time read from it the particular terms of the 
 trust.(c) When the trust is manifested and proved by letters, parol evi- 
 dence may be admitted to show the position in which the writer then 
 stood, the circumstances by which he was surrounded, and the degree of 
 weight and credit to be attached to the letters, independently of any 
 question of construction. (f?) 
 
 It will be observed, that the words of the statute require the writing 
 to be signed ;[e) and not only the fact of the trust, but also the terms of 
 it, must be supported by evidence under signature ;(/) but, as in the 
 analogous case of agreements under the fourth section of the act,((7) the 
 terms of the trust may be collected from a paper not signed, provided 
 r*PK-i such paper *can be clearly connected with and is referred to 
 L J by, the writing that is singed. (A) The signature must be by 
 the party "Vfho is by law enabled to declare such trust." It has been 
 occasionally contended, that by this description is meant the person 
 seised or possessed of the legal estate ; but it has been decided that whe- 
 ther the property be real(i) or personal,(A-) the person enabled to declare 
 the trust is the owner of the beneficial interest, and who has therefore 
 the absolute control over the property, the holder of the legal estate 
 being a mere instrument or conduit-pipe. (?) 
 
 (y) Plymouth v. Hickman, 2 Vern. 167. 
 (z) Forster v. Hale, 3 Ves. 708, per Lord Alvanley. 
 
 (a) Forster v. Hale, 3 Ves. 707, per Lord Alvanley; Morton v. Tewart, 2 Y. & 
 C. Ch. Ca. 80, per Sir J. L. K. Bruce. 
 
 {h) Hampton v. Spencer, 2 Vern. 288 ; Nab v. Nab, 10 Mod. 404. 
 
 (c) Freeman v. Tatham, 5 Hare, 329. 
 
 id) Morton v. Tewart, 2 Y. & C. Ch. Ca. 67, see 77. 
 
 \e) See Denton v. Davis, 18 Ves. 503. 
 
 (/) Forster v. Hale, 3 Ves. 707, per Lord Alvanley. 
 
 (^r) See Vend. & Purch. ch. 3, s. 2. 
 
 (A) Forster v. Hale, 3 Ves. 696. (?) Tierney v. Wood, 19 Beav. 330. 
 
 [k) Bridge v. Bridge, 16 Beav. 315; ex parte Pye, 18 Ves. 140, &c. 
 
 (Zj See Donohoe v. Conrahy, 2 Jones & Lat. 688.
 
 FORMALITIES REQUIRED TO CREATE A TRUST. 123 
 
 SECTION III. 
 
 OF THE STATUTES OP WILLS. 
 
 By the fifth section of the Statute of Frauds(»i) all devises of lands are 
 required to be in writing and signed by the testator, or by some person 
 in his presence and by his direction, and to be attested or subscribed in 
 his presence by three witnesses; and by the nineteenth section, all bequests 
 of personal estate are required to be in writing, with the exception of 
 certain specified cases in which nuncupative wills are allowed. 
 
 To trace the operation of these enactments (») we must bear in mind 
 that the absolute owner of property combines in himself both the legal 
 and equitable interest, and when the legislature enacts that no devise or 
 bequest of property shall be valid without certain ceremonies, a testator 
 cannot by an informal instrument afi'ect the equitable, any more than 
 the legal, estate, for the one is a constituent part of the ownership as 
 much as the other. Thus a person cannot but by a will duly signed and 
 attested, give a sum of money originally and primarily out of land, for 
 the charge is a part of the land, and to be raised out of it by sale or 
 mortgage ;(o) and if a testator by will duly signed and attested give lands 
 to A. and his heirs *<' upon trust," but without specifying the r ^qq -i 
 particular trust intended, and then by a paper, not duly signed and L J 
 attested as a will or codicil, declare a trust in favour of B., the benefi- 
 cial interest under the will is a part of the original ownership, and can- 
 not be passed by the informal paper, but will descend to the heir-at- 
 law.(p) Again, if a legacy be bequeathed by a will, in writing, to A. 
 " upon trust," and the testator, by parol, express an intention that it 
 shall be held by A. upon trust for B., such a direction is in fact a testa- 
 mentary disposition of the equitable interest in the chattel, and therefore 
 void by the statute, which imposes the necessity of a written will. If it 
 be said that such expression of intention, though void as a devise or be- 
 quest, may yet be good as a declaration of trust, and therefore that where 
 the legal estate of a freehold is well devised, a trust may be engrafted 
 upon it by a simple note in writing ; and where a chattel personal is well 
 bequeathed, a trust of it, as accepted from the seventh section of the 
 Statute of Frauds, may be raised by a mere parol declaration ; the an- 
 swer is, that a wide distinction exists between testamentary dispositions 
 and declarations of trust. The former are ambulatory until the death 
 of the testator, but the latter take effect, if at all, at the time of the exe- 
 cution. "The deed," observed Lord Loughborough, in a similar case, 
 " is built on the will ; if the will was destroyed, the deed I should consider 
 absolutely gone ; the will without the deed is incomplete, and the deed 
 without the will is a nullity."(5) And Mr. Justice Buller observed, " A 
 
 (w) 29 Car. 2, c. 3. 
 
 (?i) The statute now in force is 1 Vict. c. 26, but the cases were decided on the 
 Statute of Frauds. 
 
 (o) See Brudenell v. Boughton, 2 Atk. 2T2. 
 (p) See Adlington v. Cann, 3 Atk. 151. 
 (y) Habergham v. Vincent, 2 Ves. jun. 209.
 
 124 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 deed must take place upon its execution, or not at all ; it is not necessary for 
 a deed to convey an immediate interest in possession, but it must take place 
 as passing the interest to be conveyed at tlie execution ; but a will is quite 
 the reverse, and can only operate after death."(r) We may therefore 
 safely assume, as an established rule, that if the intended disposition be 
 of a testamentary character, and not to take effect in the testator's life- 
 time, but ambulatory until his death, such disposition is inoperative un- 
 ' -, less it be declared in writing in ^strict conformity with the sta- 
 t **^' J tutory enactments regulating devises and bequests. (s) 
 
 Lord Northington once enunciated the proposition, that a writing 
 signed by a party who had power to make a trust, declaring the trust 
 upon the will, is good though such writing be not attested by three wit- 
 nessess according to the solemnities of the Statute of Frauds ;(;) but this 
 is a solitary dictum, and has been long overruled by the highest autho- 
 rities. (?() 
 
 Inchiquin v. rrench(i') may be mentioned, as the case has been mis- 
 taken. A testator devised all his real estate, charged with debts and 
 legacies, in strict settlement, and gave a legacy of 20,000/. to Sir William 
 Wyndham ; by a deed poll of even date with his will, the testator declared 
 that the 20,000?. was given to Sir William Wyndham upon trust for 
 Lord Clare. "The deed poll," adds Mr. Cox, the reporter, " does not 
 appear to have been proved as a testamentary paper j" and according to 
 the same report, Lord Hardwicke decreed that the legacy of 20,000?. 
 given to Sir William Wyndham, and by the codicil declared to be in trust 
 for Lord Clare, was a subsisting legacy. It might be inferred from this 
 statement, that Lord Hardwicke admitted the deed poll as a declaration 
 of trust; but it will be observed that he calls it a codicil, and from the 
 report of the same case in Ambler(tc) we learn the facts, viz., that Lord 
 Clare was out of the jurisdiction, and Lord Hardwicke declined to 
 entertain the question as to Lord Clare's right in his absence ; but the 
 counsel, for all parties, desiring his lordship to determine whether, 
 r*PQ -1 assuming the legacy to be valid, it was to be paid out of *the 
 L -I real or personal estate, his lordship held, that as the will con- 
 tained a general charge of legacies and the gift by the codicil, though 
 not attested by the Statute of Frauds, was a legacy, it was raisable pri- 
 
 (r) Habergbam v. Vincent. 2 Yes. jun. 230. 
 
 («) In Metbam v. Devon, 1 P. W. 529, a testator directed his executors to pay 
 3000Z. as be sbould by deed appoint, and subsequently the testator by a deed ap- 
 pointed the 3000^. to the children of his son by Mrs. H., and the Court established 
 the gift to the children on the ground that the deed referred to the will, and was 
 part thereof and in the nature of a codicil. It does not appear in this case whe- 
 ther the deed had been proved with the will, but undoubtedly it might have been, 
 as, though a deed in form, it was of a testamentary character. If the deed was 
 not proved, or assumed to have been proved, as part of the will, it is difficult to 
 find any principle upon which the case can be supported from the brief statement 
 of it in the report. 
 
 {t) Boson V. Statham, 1 Ed. 514. 
 
 (m) Adlington v. Cann, 3 Atk. 151 ; Muckleston v. Brown, 6 Ves. 67 ; Stickland 
 T. Aldridge, 9 Ves. 519 : and see Puleston v. Puleston, Finch. 312, Jenk. 3 Cent. 
 Ca. 26. 
 
 {v) 1 Cox. 1. („,) Amb. p. 33.
 
 FORMALITIES REQUIRED TO CREATE A TRUST. 125 
 
 marily out of the personal estate, and then out of the real estate. This 
 was the only point determined by him. 
 
 If a testator, hy his will, devise an estate, and the devisee, so far as 
 appears on the face of the will, is intended to take the beneficial interest, 
 and the testator leave a declaration of trust not duly attested, and not 
 communicated to the devisee and assented to by him in the testator's 
 lifetime, the devisee is the party entitled both to the legal and beneficial 
 interest; for the estate was well devised by the will, and the informal 
 declaration of trust is not admissible in evidence. (x) This doctrine, of 
 course, does not interfere with the known rule, that a testator may, hy 
 his will, refer to and incorporate therein, any document which at the 
 date of the will has an actual existence, and is thus made part of the 
 will. 
 
 Should the testator devise the estate in such language that the will 
 passes the legal estate only to the devisee, and manifests an intention of 
 not conferring the equitable, in short, stamjys the devisee with the charac- 
 ter of trtistee, and yet does not define the particular trusts upon which he 
 is to hold ; in this case, no paper not duly attested (except of course 
 papers existing at the date of the will, and incorporated by reference) 
 will be admissible to prove what were the trusts intended. Nor will the 
 devisee be allowed to retain the beneficial interest himself; but while 
 the legal estate passes to him, the equitable will result to the testator's 
 heir-at-law. (y) And under the present Statute of Wills, the law is the 
 same in reference to a bequest of personal estate. (2) 
 
 And if it appear by the will that the devisee was meant to *be ^ ^^q -. 
 a trustee, and not to take the beneficial interest, parol evidence l J 
 cannot be received in support of a contrary intention, for this would be 
 not to rebut an equitable presumption, but to act upon parol testimony 
 in contradiction to a written instrument. (o) 
 
 We now proceed to notice two exceptions to the general rule, that a 
 trust cannot be created by devise or bequest, except with the formalities 
 required by the enactments relating to wills. 
 
 The first exception existing, however, in the case only of testamentary 
 instruments executed before Jan. 1, 1838,(Z>) was, that a testator might, 
 by a will duly attested, charge his real estates with debts and legacies ; 
 and then a debt subsequently contracted, or a legacy given by a codicil, 
 though not attested, would under the general charge contained in the 
 
 (x) Adlington v. Cann, 3 Atk. 141 ; and see Stickland v. Aldridge, 9 Ves. 519 ; 
 and observations of Sir J. L. K. Bruce, in Briggs v. Penny, 3 De Gex and Sm. 
 p. 547. 
 
 (y) Muckleston v. Brown, 6 Ves. 52. Bisliop v. Talbot, as cited ib. GO, was a 
 devise to trustees in trust, but on consulting the Reg. Lib. it appears there was no 
 notice of the trust upon the will, Reg. Lib. 1772, A. fol. 137. In Boson v. Statham, 
 1 Ed. 508, the devisees were described as trustees, but Ibis circumstance was not 
 adverted to by the counsel or the court. 
 
 (z) Johnson v. Ball, 5 De Gex & Sm. 85. 
 
 (a) It should be borne in mind that the point may yet occur in practice in re- 
 ference as well to testators dying after as those dving before 1838. 
 
 (b) See Langham v. Sandford, 17 Ves. 442; S. C. 19 Ves. 643; Rachfield v. 
 Careless, 2 P. W. 158 ; Golding v. Yapp, 5 Madd. 59; White v. Evans, 4 Ves. 21; 
 Walton V. Walton, 14 Ves. 322. 
 
 January, 1858.— 9
 
 126 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 formal instrument, be raisable out of tlie real estate. The reason is, 
 that debts and legacies being primarily payable out of the personal estate, 
 are a fluctuating charge upon the real estate. The lands only are affected 
 to the extent of the deficiency of the personalty, and the amount of the 
 latter must be uncertain up to the time of the testator's death. The 
 testator, by contracting debts or giving legacies by an unattested codicil, 
 exercised the power which the law allowed him of reducing the personal 
 estate ; and as regards the Statute of Frauds, it was conceived to be 
 immaterial whether the testator diminished the personal assets in this 
 or any other manner.(c) But the exception does not extend to a will so 
 worded as to amount to a reservation of a power to charge by unattested 
 codicil j(c?) nor. it is conceived, to a charge by will of lands with debts 
 and legacies, and a subsequent gift by unattested codicil of legacies to 
 be raised exclusively/ out of the real estate ; this last amounting to the 
 devise of a direct interest in land. 
 
 r *~n 1 *Another exception to the rule, that parol trusts cannot be 
 L J declared upon a will, is in the case of fraud. The court will 
 never allow a man to take advantage of his own wrong, and therefore if 
 an heir, or devisee, or legatee, or next of kin, contrive to secure to him- 
 self the succession of the property through fraud, the person to whom, 
 but for the intervention of fraud, the property would have passed, may 
 affect the conscience of the legal holder, and convert him into a trustee, 
 a»d compel him to execute the disappointed intention. 
 
 Thus if the owner of an estate hold a conversation with the heir, and 
 be led by him to believe that if the estate be suffered to descend, the 
 heir will make a certain provision for the mother, wife, or child of the 
 testator, a court of equity, notwithstanding the Statute of Wills, will 
 oblige the heir to make a provision in conformity with the express or 
 implied engagement; for the heir ought to have informed the testator 
 that he, the heir, would not hold himself bound to give effect to the 
 intention, and then the testator would have had the opportunity of inter- 
 cepting the right of the heir by making a will.(e) 
 
 So if a father devises to his youngest son, who promises that if the 
 estate be given to him he will pay 10,000/. to the eldest son, the court, 
 at the instance of the eldest son, will compel the youngest son to disclose 
 what passed between him and the testator, and if he acknowledge the 
 engagement, though he pray the benefit of the statute in bar, he will be 
 a trustee for the eldest son to the extent of 10,000/. (/J 
 
 And so, generally, if a testator devises an estate to A. the henejicial 
 owner upon the face of the will, but upon the understanding between 
 the testator and A. that the devisee will as to a part or even the entirety 
 of the beneficial interest hold upon any trust which is lawful in itself, 
 
 (c) Haberghani v. Vincent, 2 Ves. jun. 23G. 
 
 S*^} J°,f !• Cunninghame, 12 Ves. 29 ; Swift v. Nasli, 2 Keen, 20. 
 T ^\ ^, , J- ^^"''^' ^ ^''°- ^^- "'21 ; Stickland v. Aldridge. 9 Ves. 519, per 
 Lord Elden ; Harris v. Horwell, Gilb. Eq. Rep. 11. As to tlie limits of the juris- 
 aiciion ot courts of equity, in cases of devises or bequests obtained bv fraud, 
 see Hindson V. Weatlierill, 5 De Gex, M. k G. 301, and the cases there collected. 
 
 (/) btickland v. Aldridge, 9 Ves. 519.
 
 FORMALITIES REQUIRED TO CREATE A TRUST. 127 
 
 iu favour of B., the court, at the instance of B., will affect the con- 
 science of A., and decree him to execute the testator's intention. (^) 
 
 *It often happens that a proposed devisee enters into an r-^.^-,-, 
 engagement with the testator in his lifetime to execute a secret •- -I 
 trust of an unlawful character, one which the policy of the law does not 
 allow to be created by will. In this case the court will not suffer the 
 devisee to profit by his fraud, but on proof of the fact raises a resulting 
 trust in favour of the testator's heir-at-law. If, therefore, a testator 
 devise an estate in'words carrying upon the face of the will the beneficial 
 interest, and obtain a promise from the devisee that he will hold the 
 estate upon trust for a charitable purpose, the heir-at-law, as entitled to 
 a resulting trust, may file a bill against the devisee, and compel him to 
 answer whether there existed any such understanding between him and 
 the testator ; and if the defendant acknowledge it, he will be decreed a 
 trustee for the plaintiff, and to convey the estate to him accordingly. (A) 
 " Surely," said Lord Eldou, " the law will not permit secret engage- 
 ments to evade what, upon grounds of public policy, is established ? Is 
 the court to feel for individuals, and to oblige persons to discover in 
 particular instances, and not feel for the whole of its own system, and 
 compel a discovery of frauds that go to the roots of that system ? There 
 is surely a stronger call upon the justice of the court to say, upon u 
 private bargain, between the testator and those who are to take appa- 
 rently under the will, which is to defeat the whole of the provisions and 
 policy of the law, that they shall be called on to say whether they took 
 the estate, as they legally may not do, for charitable purposes."(») 
 
 In Bishop v. Talbot,(y) a testator by will duly attested gave p^-o i 
 *his real estate to A. and B. in fee, and by a memorandum L "^ J 
 signed, but not attested, declared certain charitable trusts. A bill was 
 filed by the heir-at-law against the devisees, who by their answer insisted 
 that the devise was not upon any secret trust, nor for other purposes 
 than what appeared on the will, but admitted they had the memorandum 
 in their possession, and suhriiitted the effect thereof to the judgment of 
 the court. Sir Thomas Sewell is reported to have said, " He did not 
 think the principal matter would be the validity of the paper writing : 
 the question was, what would be the effect of the answer, supposing 
 
 (ff) Kingsman v. Kingsman, 2 Yern. 559; Drakeford v. Wilks, 3 Atk. 539; 
 Barrow v. Green, 3 Yes. 152; Marriot v. Marriot, 1 Strange, G72, per Cur.; Sea- 
 grave V. Kirwan, 1 Beatt. 164, per Sh- A. Hart; Leister v. Foxcroft, cited ib. : 
 Chamberlaine v. Cliambcrlaine, 2 Eq. Ca. Ab. 43; ib. 465; Thynn v. Thjnn, 1 
 Yern. 296; Devenish v. Baines, Free, in Ch. p. 3: Oldham v. Litcliford, 2 Vera. 
 506; same case, Freem. 284; Reecli v. Kennigate. Amb. 67; S. C. 1 Yes. 123; 
 Newburgh v. Newburgb, 5 Madd. 366, per Sir John Leach; Chamberlain v. Agar, 
 2 Yes. & B. 259; Nab v. Nab, 10 Mod. Rep. 404; Strode v. Winchester, 1 Dick! 
 397 ; S. C. stated from Reg. Lib. App. No. 1 ; and see Alison's case, 9 Mod. Rep. 
 62 ; Dixon v. Olmius, 1 Cox, 414. 
 
 {h) Adlington v. Cann, Barn. 130 ; King v. Lady Portington, 1 Salk. 162 ; 
 Muckleston v. Brown, 6 Yes. 52 ; Stickland v. Aldridge, 9 Yes. 516; and see At- 
 torney-General V. Duplessis, Park. 144 ; Russell v. Jackson, 10 Hare, 204 ; Tee v. 
 Ferris, 2 Kay & J. 357 ; Lomax v. Ripley, 3 Sm. & Gif. 48. 
 
 (j) Muckleston v. Brown, 6 Yes. 69. 
 
 (./) Cited Muckleston v. Brown, 6 Yes. 60, 67; Reg. Lib. A. 1772. fol. 137. A. 
 1773, fol. 686.
 
 128 LEWIN ON THE LAW OF TKI'STS. ETC. 
 
 there was no paper; admitting there was no trust for charitable purposes 
 except what was mentioned in the answer, this was a sort of disclaimer 
 upon their part, and the question was, who should have it V And his 
 honor decreed the heir-at-law to be entitled to a resulting trust. " Sir 
 Thomas Sewell," said Lord Eldon, " went a great length in that case. 
 If he had said the law would authorize him to hold the memorandum a 
 sufficient denotation of intention that the devisees should be trustees, 
 the difficulty would be, how he came to read the momorandum. But he 
 took it in another way, that as they set forth the memorandum, they 
 admitted the purpose of the testator, and put it, not upon the effect of 
 the memorandum, vi sua, if I may so expi-ess it, but as taken as their 
 admission. I doubt whether that is quite correct reasoning; but though 
 Sir Thomas Sewell might be wrong in the fact that that was an admission, 
 his opinion is an authority in point of law, that if there was an admission 
 he would execute the trust. Then it comes to this, that the doctrine of 
 the court is, that the defendant shall answer in such a case ; and if he 
 answers in the affirmative, there is a resulting trust for the heir."(^) 
 
 In a recent case(A the court was much more favourable to the devisees 
 in the construction put upon this act. A testator devised certain free- 
 holds to four persons during the life of A. for their own use and benefit, 
 and three of them at the same time signed and delivered to the testator 
 letters of acknowledgment that, although the estate was expressed to be 
 devised to them beneficially, they would hold the same upon trust for 
 r*7m ^^'i^li^n. A bill was filed, by two of the trustees who had signed 
 L -1 the letters, against the two other trustees, the alien and the 
 crown, in the absence of the heir, to have the rights of all parties ascer- 
 tained and declared. The trustee who had not signed an acknowledg- 
 ment did not admit any trust, and was held to be clearly entitled to the 
 beneficial interest; and even as to the three devisees who had signed the 
 acknowledgment, the vice-chancellor was of opinion that the devisees 
 had so signed under the impression that the trust for an alien was good, 
 and that, acting under a misapprehension in that respect, they were not 
 bound by the letters as an admission of trust. The court therefore 
 declared that all four devisees was beneficially entitled. 
 
 Where a devise is to several persons, as tenants in common, it may be 
 void as to one to whom the testator's unlawful intention was communicated 
 in his lifetime, and good as to the others who were not privies to the 
 intention, ^m) 
 
 And where no trust is imposed by the will, and no communication was 
 made in the testator's lifetime, the devise will be good, although the 
 devisee may, notwithstanding the absence of legal obligation, be disposed 
 from the bent and impulse of his own mind, to carry out what he believes 
 to have been the testator's wishes. («) 
 
 Another case may occur, as follows ; — A devise may be a beneficial one 
 upon the face of a will, but there may have existed an understanding 
 
 (k) Muckleston v. Brown, 6 Ves. 68. 
 
 (l) Burney v. Macdonald, 15 Sim. 6. 
 
 (m) Tee v. Ferris, 2 Kay & J. 357. 
 
 («) Wallgrave v. Tebbs', 2 Kay & J. 313 : Lomax v. Ripley, 3 Sm. & Gif. 48.
 
 FORMALITIES REQUIRED TO CREATE A TRUST. 129 
 
 between the testator in his lifetime and the devisee, that, without any 
 particular part of the estate being specified, such portions of it as the 
 devisee, in the exercise of his discretion, might think proper, should be 
 applied to a charitable purpose. Under such circumstances the heir of 
 the testator would have a right to interrogate the devisee whether he has 
 exercised that discretion, and to call for a conveyance of so much as the 
 devisee may have made subject to the unlawful purpose. fo) 
 
 In the above cases it is not a sufficient answer to a bill for the defend- 
 ant to say that the secret trust is not for the plaintiif, *for thus ^ ^_ . ., 
 the devisee makes himself the judge of the title. The trust may L J 
 be for a charity, and if so, the beneficial interest would result for want 
 of a lawful intention, or the equitable interest may, on some other ground, 
 enure to the heir as undisposed of.(j^) If the defendant deny the trust 
 by his answer, the fact in this as in other cases of fraud may be esta- 
 blished against him by the production of parol evidence. (5') 
 
 It is clear that if a devisee enter into an engagement with the testator 
 to execute an unlawful trust, the heir may file a bill, and claim the bene- 
 ficial interest ; but suppose the devise is a beneficial one upon the face of 
 it, and the testator communicates his will to the devisee, and requests 
 him to be a trustee for such purposes as the testator shall declare, which 
 the devisee undertakes to do, but the testator afterwards dies without 
 having expressed any trust, it seems that in this case also the devisee will 
 not be allowed to take the beneficial interest, but the heir-at-law will be 
 entitled. 
 
 Thus in Mucklestou v. Brown(r) the testator applied to three persons 
 to act as trustees for the execution of certain trusts, which he intended 
 to declare, and upon their undertaking the trust, the testator devised all 
 his real estate to them, subject only to the payment of his debts and 
 legacies. The testator died without having declared any trust as he had 
 proposed. Upon a bill filed by the heir, Lord Eldon was of opinion, 
 though very guardedly expressed, that the devisee was bound to answer. 
 He observed, " I am not quite prepared to say it is clear that if the tes- 
 tator made the devise, meaning, at the time, thereafter duly to declare 
 trusts, and it happened that he did not declare any, that sort of case 
 would not be within the equity of this court, and whether, if they 
 admitted his will was made upon an undertaking that they would execute 
 such trusts, the heir would not have a right to say no trust was duly 
 declared, the purpose therefore failed, and the trust results by law to 
 him, not upon the intention, but upon the ground that there is no inten- 
 tion, and he is entitled to avail himself of that." 
 
 * Another case, distinct from all the preceding, is where a tes- i- ^-r -1 
 tator devises an estate to persons as trustees, but no trusts are L J 
 declared by ,the will, so that the equitable interest would, upon the face 
 of the instrument, result to the heir-at-law, and the testator informs the 
 
 (0) Muckleston v. Brown, 6 Ves. 69. 
 
 Ip) Newton v. Pelham, citL'd Boson a". Statham, 1 Ed. 514. 
 (q) Kingsman v. Kingsman, 2 Ver. 599 ; Pring v. Pring, 2 Ver. 99. 
 (;•) 6 Ves. 52. See too the obseryatious of V. C. (now L. J.) Turner, in Rus- 
 sell V. Jackson, 10 Hare, p. 214.
 
 130 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 devisees that his intention in making the devise was, that they should 
 hold the estate in trust for certain persons, -wh^ch the devisees undertake 
 to do. Will the court, under such circumstances, compel the devisee to 
 execute the parol intention, or will the equitable interest result to the 
 heir ? In favour of the parol trust, it will be argued that the testator left 
 his will in the form in which it appears, under the impression that his 
 object, verbally communicated, would be carried out, and that the trust 
 can therefore be supported, on the ground of mistake in himself, or 
 fraud in the devisee in not apprising the testator that the trust could not 
 be executed. To this the answer is, that, upon the face of the will, 
 the equitable interest results to the heir-at law, and that, if the testator 
 had not disposed of the equitable interest, as required by the statute, the 
 court cannot make a will for him, on the plea of mistake or fraud :(.s) 
 that the court has interfered in the case of fraud in those instances only 
 where the devisee, taking the beneficial interest under the will, was the 
 contriver of the fraud, and, as no man may take advantage of his own 
 wrong, the court compelled the devisee to execute the intention fraudu- 
 lently intercepted] but in the case supposed, the legal estate only is in the 
 devisee, while the beneficial interest is in the heir-at-law, who is wholly 
 disconnected from the fraud. What jurisdiction, therefore, has the court 
 to act upon the conscience of the heir, to deprive him of that estate which 
 has not been devised away according to the Statute of Wills ? and how can 
 the trustees for the heir be held to be trustees for another in the absence 
 of all fraud on the part of the heir ? It would seem, upon principle, that 
 where a trust results upon the face of the will, the circumstance of an 
 express or implied promise on the part of the devisee to execute a certain 
 trust is not a sufiicient ground for authorizing the court to execute the trust 
 r ^-a -1 ^^ against the heir-at-law. *The point might have arisen in each 
 L -I of the four following cases, but except in the latest of the four, 
 it does not appear to have been taken. 
 
 In Pring v. Pring,(i?) a man by his will appointed A., B., and C. his 
 executors in trust, and gave them a legacy of 20/. apiece : the wife 
 brought her bill against the executors, alleging that the defendants had 
 been made executors in trust for her. Two of the defendants admitted 
 the trust ; but the third denied it, and insisted that at all events, if the 
 will stamped them as trustees, it must be taken to be a trust not only for 
 the wife but also for the next of kin. The will declaring that the exe- 
 cutors were only in trust, and not declaring for whom, the court held 
 that the person might be averred; and two of the executors having, by 
 their answer, confessed the trust, and it being likewise fully proved that 
 it was the intent of the testator, and that he declared it a trust for his 
 wife, the court decreed the trust for the plaintifi", with costs against the 
 adversary defendant. It is presumed that in this case a communication 
 had passed between the testator and the executors, and that if a trust 
 had not resulted upon the face of the will, the court, on the ground of 
 traud, might have compelled the executors to give the beneficial interest 
 which they took under the will, to the person to whom they had promised 
 
 (s) Newburgh v. Newburgh, 5 Madd. 364. It) 2 Vern. 99.
 
 FORMALITIES REQUIRED TO CREATE A TRUST. 131 
 
 it in the testator's lifetime. "Whether the court was right, as a trust 
 appeared upon the will, in giving away the beneficial interest, not of the 
 fraudulent executors, but of the innocent next of kin, appears open to 
 question. 
 
 In Crooke v. Brooking,(«) a testator by his will gave to his brothers 
 Simon and Joseph, 1500?. /oy such uses as he had declared to them, and 
 by them not to be disclosed ; charging them that they would perform 
 the same, as they would answer it at God's tribunal. The money was 
 paid to Simon and Joseph ; and Simon, in a letter to Joseph, acknow- 
 ledged the trusts to have been for Ann Crew for life and then for her 
 sister's children. Joseph died, and one of the children filed his bill 
 against Simon for an execution of the trust, which the court decreed ; 
 but the question argued appears to have been *not between the r :)=-■-- -i 
 plaintiff and the next of kin whether a valid trust was created, L J 
 but as the money had been actually paid to the trustees, what class of 
 children were the cesfuis que trust, on the assumption that the trust itself 
 was valid. And besides, this was a case before the Statute of Frauds. 
 
 In the more recent case of Smith v. Attersoll(i;) a testator by his will 
 gave fifty commercial dock shares to his two sons, Joseph and John, who 
 were also his executors, in trust for certain jmrposcs which the will 
 stated had been fully explained to them. On the same day on which 
 the will was executed, Joseph and John signed an acknowledgment that 
 they would hold the shares upon trust for the testator's six natural chil- 
 dren. The acknowledgment was not proved as a testamentary paper. 
 The bill was filed by one of the six children to have the trusts of the 
 dock shares, as expressed in the acknowledgment, carried into execution. 
 The executors by their answer admitted the trust. It does not appear 
 that the testator's next of Mn were made p)ar ties. Lord Gifibrd decreed 
 the execution of the trusts on the ground that the paper writing, though 
 not testamentary, was an admission of the trust by the executors ; but 
 the observation occurs that the executors had not the beneficial interest 
 in themselves, and therefore no admission by them could give a title to 
 another. Several cases were cited by the court in support of the deci- 
 sion, but all of them, except Crooke v. Brooking, mentioned above, are 
 distinguishable. (w) It is a very material circumstance that the question 
 was litigated between the executors and a cestui que trust only in the 
 absence of the next of kin, to whom, in fact, the equitable interest had 
 resulted. 
 
 In Podmore v. Gunning,(x) the principal question litigated was 
 whether the testator had in fact stamped the devisee with *the r *y<;j -i 
 character of a trustee, so that the equitable interest upon the L J 
 face of the instrument resulted ; and, in the event of the court being of 
 
 {u) 2 Vern. 50 and 107. (i') 1 Russ. 2C6. 
 
 {iv) As Jones v. Habbs, Gilb. Eq. Rep. 146, but there the money passed, and 
 the parol trust was declared in the life-time of the testator. Inchiquin v. French. 
 1 Cox, 1, but this case was mistaken, see Ambler's Rep. p. 33, and the observa- 
 tions, ante, p. 67. Metham v. Devon, 1 P. W. 520, but the court treated the deed 
 as testamentary and in the nature of a codicil; and no doubt it might have been 
 proved as such, even if it had not been proved already. 
 
 if) 7 Sim. 644.
 
 132 LEAVIN ON THE LAW OF TRUSTS, ETC. 
 
 that opinion^ a contest would have arisen between the heir and next of 
 kin on the one hand, and the secret cestuis que trust on the other. 
 
 In the case under consideration, Sir Thomas Staines devised his resi- 
 duary estate to his wife, her heirs, administrators, and assigns, " having 
 a perfect confidence that she would act up to the views which he had 
 communicated to her in the ultimate disposal of his property after his 
 decease." (y) A bill was filed by the two natural daughters of Sir 
 Thomas, alleging that Sir Thomas, at the time of making his will 
 had expressed to Lady Staines his desire of providing for the plain- 
 tiffs, and that Lady Staines had promised that if the residuary estate 
 were devised to her she would execute his intention in the plain- 
 tiffs' favour. The vice-chancellor was of opinion that the language 
 of the will did not declare Lady Staines to be a trustee ; that the words 
 " having a perfect confidence that she would act up to the views which 
 he had communicated to her," did not necessarily imply that any abso- 
 lute direction had been given to her as to the disposition of the property, 
 but were consistent with the testator having given to his wife either as 
 absolute discretion, or, a general recomviendation leaving it to her dis- 
 cretion to act upon it or not in such manner as she might think fit ; but 
 the vice-chancellor admitted that if the plaintifis had proved that Lady 
 Staines had undertaken to dispose of the estate in a given manner, she 
 would have been bound by the engagement. The plaintiffs, therefore, 
 failed in converting Lady Staines into a trustee for themselves, and as 
 Lady Staines was not distinctly invested with the character of trustee 
 upon the face of the will, no equitable interest resulted. 
 
 We have stated the rule that if a testator make a devise carrying the 
 beneficial interest on the face of the will, but it appears from the admis- 
 sion of a devisee or by evidence that the devisee was pledged to the tes- 
 tator to execute a charitable trust, the court will not allow the execution 
 of such a trust, but will give the estate to the heir-at-law. The question 
 r *79 1 ^®^® suggests *itself, whether the Statute of Mortmain,(z) which 
 L -J declares a devise " in trust or for the benefit of" a charity to be 
 absolutely void, applies to such a case, so as not only to defeat the equitable 
 interest admitted or proved to have been intended for a charity, but also 
 to make void the devise of the legal estate itself, so that by the efi"ect of 
 the statute, when the fact has been established, the devisee takes no 
 interest either at law or in equity. 
 
 Lord Hardwicke determined in Adlington v. Cann,(a) that the Sta- 
 tute of Mortmain did not extend to trusts by parol. " I am of opinion," 
 he said, " that the Statute of Mortmain has not abrogated the Statute of 
 Frauds, which, being made for the public good, ought normam imponere 
 futuris. It is true the Statute of Frauds cannot govern the particular 
 provisions of the Statute of Mortmain, but it must govern the construc- 
 tion of subsequent acts ; for they must be construed by rules of law, and 
 by what is laid down in precedent acts. If it should be admitted that 
 the Statute of Mortmain took all these cases out of the Statute of Frauds, 
 and was intended to introduce parol evidence, it would do more mischief, 
 
 fe-* STI^^^ ^"^^' ''• ^^°°'''' 3 ^^ ^^^ ^ Sm. 525 ; 3 Mac. & Gord. 546. 
 {z) 9 G. 2, c. 36. ^„3 3 ^t,, {^^_
 
 FORMALITIES REQUIRED TO CREATE A TRUST. 133 
 
 by laying the foundation of a great deal of perjury, than it can possibly do 
 good in any other respect whatsoever, (i) Besides, very little inconvenience 
 can arise from my determination to this effect, for the instances of trus- 
 tees abusing a trust for charity are so frequent, that they are a suflBcient 
 warning to reasonable men not to leave their estates under such uncer- 
 tainty, as to put them absolutely under a person's power, and then trust 
 to his generosity for the disposing of them in charity.(cy' Thus, in Lord 
 Hardwicke's view of the subject, a parol trust in mortmain, where the 
 devisee entered into no engagement with the testator, could not be esta- 
 blished against the devisee to deprive him of the beneficial interest ;(&?) 
 and where the devisee did enter into such an engagement, and the fact 
 was either admitted by the defendant, or established against him by evi- 
 dence, the trust only was void upon principles of equity, and not the 
 devise of the legal estate by force of the Statute of Mortmain. 
 
 *Lord Northington, on the contrary, thought that secret trusts ^ ^qq -, 
 were within the letter of the Statute of Mortmain ; and he there- L J 
 fore decided, that whether the testator had held communication with the 
 devisee(6) or not,(/) the intention of creating an honorary trust would, 
 if established, avoid the devise of the legal estate itself. " What,'' he 
 says, " stands in my way ? One objection is, that the beneficial devise 
 to the trustees and their heirs by the will is not to be revoked or con- 
 trolled by the second instrument, it not being executed according to the 
 Statute of Frauds, and therefore it only can be taken as an honorary 
 trust, and as such is not within the Statute of Mortmain. This is as 
 much as to say, that, being a fraud within both acts, it is not within either. 
 And the objection is, that it will be more inconvenient to let in fraud 
 and perjury by opening the Statute of Frauds, than to let in devises to 
 charities by opening the Statute of Mortmain. My opinion is, that the 
 Statute of Mortmain meant to prevent honorary trusts or devises for 
 charities quacunque a^'te vel ingenio ; and the honorary trust infects the 
 will, as much as if it were declared in the most solemn manner."^,^) Sir 
 Thomas Sewell, in the case of Bishop v. Talbot, before stated, where the 
 fact of the trust was established on the admission of the devisee, con- 
 sidered the heir as entitled to a resulting trust. His honor therefore 
 was apparently of opinion with Lord Hardwicke, (as appears the more 
 correct view) that, in the ease of a trust in mortmain not declared with 
 the formalities required for a will, the devise of the legal estate was good, 
 as not affected by the Statute of Mortmain, though equity where there 
 was any mala Jides in the devisee would set it aside on the ground of 
 fraud upon public policy. 
 
 The provisions of the Statute of Frauds relating to wills have now 
 been repealed, and the distinction whicli before existed between devises of 
 real and bequests of personal estate has been abolished. (/<) The prin- 
 ciples, however, established by the foregoing cases with reference to the 
 
 (b) 3 Atk. 150. (c) Id. 153. 
 
 {d) And this is now settled law. ^Yalgl•ave v. Tebbs, 2 Kay & J. 313; and 
 cases cited supra. 
 
 (e) Edwards v. Pike, 1 Ed. 2C7. (/) Boson v. Statham, 1 Edw. 503. 
 
 Iff) Boson V. Statham, 1 Ed. 512, 514. (h) I Vict. c. 2G.
 
 134 LEWIN ON THE LAW Of TRUSTS, ETC. 
 
 Statute of Frauds still apply mutatis mutandis to the enactments of the 
 statute at present in force. 
 
 [*81] *SECTION IV. 
 
 OF TRANSMUTATION OF POSSESSION 
 
 Where there is valuable consideration, and a trust is intended to be 
 created, formalities are of minor importance, since if the transaction 
 cannot take effect by way of trust executed it may be enforced by a court 
 of equity as a contract for value. Where there is no valuable considera- 
 tion, it has been not unfrequently supposed that, in order to give the 
 court jurisdiction, there must be a transmutation of possession, i. e., the 
 legal interest must be divested from the settlor, and transferred to some 
 third person. But upon a careful examination of the authorities the 
 principle appears to be, that whether there was transmutation of pos- 
 session or not, the trust will be supported — provided it was in the first 
 instance 'perfectly created.{i^ 
 
 To elucidate this subject it may be convenient to marshal the cases 
 under the following heads. 
 
 First. It is evident that a trust is not perfectly created where there 
 is a mere intention or voluntary agreement to establish a trust, the set- 
 tlor himself contemplating some further act for the purpose of giving it 
 completion. 
 
 Thus in Cotteen v. Missing, (A;) Ann Lee Missing was entitled to a 
 residuary personal estate in the hands of the executors, and Charlotte 
 Missing being in destitute circumstances, the executors applied to Ann 
 Lee to make her some allowance. Ann Lee wrote in reply, " As to 
 the money to be allowed to Charlotte, when you ascertain what the 
 property is, whatever you and Mr. Missing think right that I should give, 
 I shall abide by." The executors answered, that they thought 500/. 
 r*89n *would be a proper sum ; and Ann Lee then replied. ''With 
 L "-I respect to Charlotte, as you and Mr. Missing say she ought to be 
 allowed 500/., I will readily consent to it. I am willing to do anything 
 that is right." Under these circumstances Sir T. Plumer thought that 
 the gift was still in fieri. " To make a complete gift there must not 
 only be a clear intention, but the intention must be executed and carried 
 into effect. At the date of the first letter to the executors the gift was 
 inchoate, the quantum of property not having been ascertained. The 
 second letter amounted to a declaration of the propriety of giving her 
 500?., and shows her approval of a gift to that amount, but does not give 
 
 ^ («■) See Ellison v. Ellison, 6 Ves. 662 ; Pulvertoft v. Pulvertoft, 18 Ves. 99 ; 
 Sloane v. Cadogan, Vend. & P. Append. No. 24 ; Edwards v. Jones, 1 M. & Cr. 
 226 ; Wheatley v. Purr, 1 Keen, 551 ; Garrard v. Lauderdale, 2 R. & M. 453 ; Col- 
 linson v. Patrick, 2 Keen, 123 ; Dillon v. Coppin, 4 M. & Cr. 647 ; Meek v. Kettle- 
 well, 1 Hare, 469 ; Fletcher v. Fletcher, 4 Hare, 74 ; Price v. Price, 14 Beav. 598 ; 
 Bridge v. Bridge, 16 Beav. 315 ; Beech v. Keep, 18 Beav. 285 ; Donaldson v. Don- 
 aldson, 1 Kay, 711 ; Scales v. Maude, 6 De Gex, M. & G. 43 ; Airey v. Hall, 2 Jur. 
 N. S. 658. i^k) 1 Mad. 176.
 
 FORMALITIES REQUIRED TO CREATE A TRUST. 135 
 
 effect to tlie gift and carry it into execution. Nothing is said as to 
 who is to pay the money, or when it is to be paid. The executors were 
 not warranted in paying it out of the money in their hands. If they 
 had done so, Mrs. Missing might have said, I meant to give the money 
 on terms and conditions as to marriage and age. Nothing is said as to 
 what part of her property this money was to be raised out of, Avhether 
 out of the money in the funds, or out of the estate. Nothing is to be 
 found in the letters but an intention to give, and therefore this case 
 widely differs from the cases alluded to, where acts were done carrying 
 the gift into execution. Here the gift was not completed. Supposing 
 it were anything like an authority to an agent, the subsequent marriage 
 of Mrs. Missing was a revocation of such authority, as was likewise her 
 death. This was a mere inchoate imperfect gift not carried into execu- 
 tion, and which has therefore failed." 
 
 Secondly. If the settlor propose to convert liimself into a trustee, 
 then the trust is perfectly created so soon as the settlor has executed an 
 express declaration of trust, intending to be final and binding upon him, 
 and in this case it is immaterial whether the nature of the property be 
 legal or equitable. 
 
 Thus in Ex parte Pye, or Ex parte Dubost,(?) J. M. had authorised 
 C. D. to purchase an annuity for M. G. G. for life. *The annuity ^^ j,„ -. 
 was purchased, but in the name of J. 31., who thereupon sent L J 
 over a power of attorney to transfer the annuity into the name of M. G. 
 G. Before the commission could be executed J. M. died, but Lord 
 Eldon determined that a valid trust had been created. " The question," 
 he said, " involves the point, whether the power of attorney amounts 
 here to a declaration of trust. It is clear, that this court will not assist 
 a volunteer; yet fthe act is completed, though voluntary, the court will 
 act upon it. It has been decided that, upon an agreement to transfer 
 stock, this court will not interpose; but if the party has declared him- 
 self to he the trustee of the stock, if becomes the property of the cestui que 
 trust without more, and the court will act upon it. From the documents 
 before me it does appear, that though in one sense this may be represent- 
 ed as the testator's personal estate, yet he has committed to writing 
 what seems to me a sufficient declaration that he held this part of the 
 estate in trust for the annuitant." In this case it will be observed, that 
 the gift was perfected as soon as the agent had laid out the money in the 
 purchase of the annuity. Had the purchase been made in the name 
 of J. M. as beneficial owner, the execution of the power of attorney, 
 as it failed to transfer the possession, would not have been a valid decla- 
 ration of trust ; but the purchase was made in the name of J. M. as 
 trustee for the annuitant, and the power of attorney and other documents 
 were read, not as instruments originating the trust, but as proofs of the 
 trust which had been previously created. 
 
 (?) 18 Ves. 140 ; and see Thorpe v. Owen, 5 Beav. 224 : Stapleton v. Stapleton, 
 14 Sim. 186; Searle v. Law, 15 Sim. 99; Drosier v. Brereton, 15 Beav. 221 ; 
 Bentley v. Mackay, 15 Beav. 12 ; Bridge v. Bridge, 16 Beav. 315 ; Gray v. Gray, 
 2 Sim. N. S. 273 ; Wilcocks v. Hannyngton, 5 Jr. Ch. Re. 38 ; Dipple v. Corles, 11 
 Hare, 183.
 
 136 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 In a late case(m) Sir J. Wigram expressed himself more cautiously 
 than was necessary, as to the jurisdiction of the court in enforcing a 
 trust against the settlor himself, and suggested several accompanying 
 circumstances as material to the establishment of such a trust. "In 
 the case,'^ he said, " of a formal declaration by the legal or even benefi- 
 cial owner of property, declaring himself in terms the trustee of that 
 . -^ property, *for a volunteer the court might not be bound to look 
 L J beyond the mere declaration. If the owner of property having 
 the legal interest in himself, were to execuet an instrument by which he 
 declared himself a trustee for another, and had disclosed that instrument 
 to the cestui qui trust, and afterwards acted upon it, that might perhaps 
 be sufficient ; for a court of equity, adverting to what Lord Eldon said 
 in Ex parte Dubost, might not be bound to inquire further into an 
 equitable title so established in evidence." 
 
 Thirdly. Where the settlor purposes to make a stranger the trustee, 
 then to ascertain whether a trust has been perfectly created or not, we 
 must take the following distinctions : — 
 
 1. If the subject of the trust be a legal interest, and one capable of 
 legal transmutation, as land or chattels which pass by conveyance, as- 
 signment, or delivery, or stock which passes by transfer, in this case 
 the trust is not perfectly created unless the legal interest be actually 
 vested in the trustee : it is not enough that the settlor executed a deed 
 affecting to pass it, and that he believed nothing to be wanting to give 
 effect to the transaction : the intention of divesting himself of the legal 
 property must in fact have been executed, or the court will not recog- 
 nize the trust.(H) "I take the distinction," said Lord Eldon, " to be, 
 that if you want the assistance of the court to constitute you cestui que 
 trust, and the instrument is voluntary, you shall not have that assistance 
 for the purpose of constituting you cestui que trust, as upon a covenant 
 to transfer stock, &c. : if it rests in covenant and is purely voluntary, 
 this court will not execute that voluntary covenant ; but if the party 
 has completely transferred stock, &c., though it is voluntary, yet the 
 legal conveyance being effectually made, the equitable interest will be 
 enforced by this court."(o) 
 
 p-jjgK-. In Colman v. Sarel,(^) George Davy having 1000^. Bank 
 *- -J *Anuuities standing in his name, assigned that sum by deed upon 
 trust for Joan Sarel for life, with remainder to her children, and cove- 
 nanted to pay the dividends accordingly, but no actual transfer of the 
 stock was ever made. The children filed a bill for the execution of the 
 trust, and Lord Thurlow, in dismissing the bill, observed, " When a 
 deed is not sufficient in truth to pass the estate out of the hands of the 
 settlor, but the party must come into equity, the court has never yet 
 
 (m) Meek v. Kettlewell, 1 Hare, 4*70 ; and see Hughes v. Stubbs, 1 Hare, 4T8. 
 
 (n) See Garrard v. Lauderdale, 2 Russ. & M. 452 ; Meek v. Kettlewell, 1 Hare, 
 469 ; Dillon v. Coppin, 4 M. & Cr. 647 ; Coningham v. Plunkett, 2 Y. & C. Ch. Ca. 
 245; Searle v. Law, 15 Sim. 95 ; Price v. Price, 14 Beav. 598 ; Bridge v. Bridge, 
 16 Beav. 315 ; Weale v. Ollive, 17 Beav. 252 ; Beech v. Keep, 18 Beav. 285 ; Airey 
 ^' / r-i^^ '^^^' ^- ^- ^^^ ! ^'^'^ Kiddill t. Farnell, 5 Weekly Rep. 324. 
 
 (o) Ellison V. Ellison, 6 Vcs. 662 ; and see Pulvertoft v. Pulvertoft, 18 Yes. 89. 
 
 (P) 1 Yes.jun. 50; S. C. 3 B. C. C. 12.
 
 FORMALITIES REQUIRED TO CREATE A 
 
 executed a voluntary agreement. To do so would be to make liim who 
 does not sufficiently convey, and his executors after his death, trustees 
 for the person to whom he has so defectively conveyed, and there is no 
 case where a court of equity has ever done that." 
 
 In Antrobus v. Smith,(2) a Mr. Crawfurd being entitled to ten shares 
 of the Forth and Clyde Navigation, wrote, upon the receipt for one of 
 the subscriptions, and signed the following indorsement, " I do hereby 
 assign to my daughter, A. Crawfurd, all my right, title, and interest 
 of and in the enclosed call, and all other calls of my subscription in the 
 Clyde and Forth Navigation." After Mr. Crawfurd's death, the repre- 
 sentative of A. Crawfurd filed a bill to have the shares transferred. Sir 
 W. Grant dismissed the bill, and observed, ^<This instrument, of itself, 
 was not capable of conveying the property. It is said to amount to a 
 declaration of trust. Mr. Crawfurd was no otherwise a trustee than as 
 any man may be called so who professes to give property by an instru- 
 ment incapable of conveying it. He was not in form declared a trustee, 
 nor was that mode of doing what he proposed in his contemplation. He 
 meant a gift. He says he assigns the property. But it was a gift not 
 complete. The property was not transferred by the act. Could he him- 
 self have been compelled to give effect to the gift, by making an assign- 
 ment ? 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." 
 
 2. If the subject of the trust be a legal interest, but not one capable 
 of legal transfer, as a bond or other clwse en action, which cannot be 
 assigned at law, then whether we look to *principle or authority, p ^g^ -, 
 there is considerable difficulty. On the one hand, it maybe L J 
 argued that as the settlor cannot divest himself of the legal interest, to 
 say that he shall not constitute another a trustee without passing the 
 legal interest would be debarring him from the creation of a trust in the 
 hands of another at all, and that the rule therefore should be that if the 
 settlor make all the assignment of the property in his power and perfect 
 the transaction as far as the law permits, the court in such a case should 
 recognise the act, and support the validity of the trust. On the other 
 hand, it may be urged, that in equity the universal rule is that a court 
 will not enforce a voluntary agreement in favour of a voluuteer ; and as 
 by the supposition the legal interest remains in the settlor (who there- 
 fore at law retains the full benefit,) a court of equity will not in the 
 absence of any consideration deprive him of that interest which he has 
 not actually parted with. 
 
 Some judges have adopted the one view of the question, and some 
 the other. 
 
 In Fortescue v. Barnett,(r) A. assigned a policy to trustees, but 
 retained possession of it, and afterwards received a bonus upon it, and 
 then surrendered it to the insurance office. The surviving trustee filed 
 a bill against the settlor himself for an account of the proceeds. The 
 counsel for the defendant, the settlor, argued that there was no difference 
 between an attempted assignment of stocic, and of a bond or policy, and 
 
 {q) 12 Ves. 39. (r) 3 M. & K. 36.
 
 138 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 therefore that no trust was created ; but Sir J. Leach ruled otherwise, 
 and said, " In the case of a voluntary assignment of a bond, where the 
 bond is not delivered but kept in the possession of the assignor, this 
 court would undoubtedly, in the administration of the assets of the 
 assignor, consider the bond as a debt to the assignee. There is a plain 
 distinction between an assignment of stock where the stock has not been 
 transferred, and an assignment of a hond. In the former case, the 
 material act remains to be done by the grantor, and nothing is in fact 
 done which will entitle the assignee to the aid of this court until the 
 f^tock is transferred ; whereas the court will admit the assignee of the 
 ^ hond as a creditor. In the present *case the gift of the policy 
 L J appears to me to have been perfectly complete without delivery ; 
 nothing remained to be done by the grantor, nor could he have done 
 what he afterwards did to defeat his own grant if the trustees had given 
 notice of the assignment to the assurance office. The question does not 
 here turn upon any distinction between a le^al and an equitahle title, hnt 
 simply upon whether any act remained to be done by the grantor, which, 
 to assist a volunteer, this court would not compel him to do. I am of 
 opinion that no act remained to be done to complete the title of the 
 trustees. The trustees ought to have given notice of the assignment, 
 but their omission to give notice cannot affect the c'estnis que trust." 
 
 And in Roberts v. Lloyd,(s) where Mrs. Eoberts assigned a bond to a 
 trustee with a power of attorney, and both tmstee and cestuis que trust 
 had notice of it, and after the death of the settlor, a bill was filed by 
 one of the cestuis que trust against the trustee and the obligor, on the 
 ground that the trustee had by his agent received and misapplied the 
 money, and that the obligor with a knowledge of the settlement had 
 been a party to the misapplication, Lord Langdale said, " I think Mrs. 
 Roberts did everything incumbent on her to make the trust complete 
 and valid, and that the plaintiff" is entitled to have the benefit of it;" 
 and both trustee and obligor were held liable. 
 
 So in Blakely v. Brady,(^) A. had a promissory note to pay the sum 
 of 1620/. on a certain notice, and interest in the mean time, and assigned 
 it to B. by deed, and gave him a power of attorney, and then A. died, 
 and B. filed his bill against his administrator to have the benefit of the 
 trust, Lord Plunket decreed the money to the plaintiff. « The doctrine," 
 he said, " that a cJiose en action is not legally assignable, does not appear 
 to me to be one that a court of equity is called on to extend beyond the 
 exact limits to which it has been already carried by distinct authority. 
 If the transaction is not in itself illegal, and if no act remains to be 
 done by the grantor, why is it not to be acted on as a valid and complete 
 transaction between the parties ?"(iA 
 
 r*88"l *^^ *^^ ^^^^^^ hand in Edwards v. Jones,(i') Mary Custance 
 J being entitled to a ho7id wrote and signed the following indorse- 
 ment upon it, " I, Mary Custance, of, &c., do hereby assign and transfer 
 the within bond, &c., unto and to the use of my niece, E. Edwards, 
 of, &c., with full power and authority for the said E. Edwards to sue for 
 
 («) 2 Beav. 3^6. (t) 2 Drur. & Walsh. 311. 
 
 (") lb. 326. (,;j 1 M. & Cr. 226.
 
 FORMALITIES REQUIRED TO CREATE A TRUST. 139 
 
 and recover the araount thereof, &c./' and delivered the bond to the 
 assignee. On the death of Mary Custance, her niece E. Edwards filed 
 a bill against the executor for an assignment of the bond. The vice- 
 chancellor of England dismissed the bill with costs, and on appeal to 
 the lord chancellor the decision was affirmed. In the course of his 
 judgment, Lord Cottenham referred to the case of Fortescue v. Barnett, 
 and endeavoured to distinguish it from the case before him, but it is 
 evident that Sir J. Leach's decision did not meet with his approbation. 
 
 Again, in Ward v. Audland,(z«) where A. assigned to trustees d, policy, 
 mortgages, and other clioses in action, to trustees, and the cestuis que trust 
 filed a bill against the executors of A. for the establishment of the trust, 
 the vice-chancellor of England dismissed the bill with costs, and said, 
 " There was no equity for the court to interfere, but what the plaintiffs 
 got by their deed they might maintain by their deed." The case was 
 carried on appeal to the lord chancellor, who dismissed the bill, from 
 error in the form of the pleadings, and without prejudice to the institu- 
 tion of another suit ; but apparently he adhered to the doctrine laid down 
 in Edwards v. Jones.(j;) A suit was subsequently instituted at the Rolls, 
 and his lordship dismissed the bill on the same grounds on which the 
 vice-chancellor had refused relief in the former suit.(y) 
 
 The opinion of Sir J. Wigram in the late case of Meek v. Kettlewell(2) 
 was strongly expressed in support of the view taken by the vice-chan- 
 cellor of England and Lord Cottenham. However, in a more recent 
 case(«) Lord Justice K. Bruce observed, <' It is upon legal and equitable 
 principle, we apprehend, *clear that a person sui Juris acting rjj^on-i 
 freely, fairly, and with sufficient knowledge, ought to have and L -^ 
 has it in his power to make in a binding and effectual manner a volun- 
 tary gift of any part of his property, whether capable or incapable of 
 mammal deliver?/, tvhether in jwssession or reversionary/ or howsoever 
 circumstanced," and it is conceived that this principle will for the 
 future prevail. 
 
 3. If the subject of the trust be an cquitahle interest, then a trust is 
 perfectly created when the settlor has executed an assignment of it to a 
 new trustee ; for an equitable interest is capable of transmission from one 
 to another; and here the court finds the relation of trustee and cestui 
 que trust established without the necessity of calling on the settlor to 
 join in any act for giving it completion. 
 
 This was decided by Sir W. Grant in the case of Sloane v. Cadogan.(&) 
 W. B. Cadogan was entitled, subject to his father Lord Cadogan's life 
 interest therein, to one quarter share of a sum of 20,000?., invested in 
 bank annuities in the names of the trustees of Lord Cadogan's marriage- 
 
 (w) 8 Sim. 571. 
 
 (x) Cooper's Ca. 1837-8, p. 146. {y) 8 Beav. 201. 
 
 [x) 1 Hare, 464 ; and see Scales v. Maude, 6 De Gex, M. & G. 43. 
 
 (a) Kekewich t. Manning, 1 De Gex, Mac. & Gord. 187, 188. 
 
 {h) Append, to Vend. & Purch. Qua?re, also, if the same point was not ruled in 
 Ellison V. Ellison, 6 Ves. 656; for though the facts are very imperfectly stated, it 
 would seem from some expressions that at the date of settlement the legal estate 
 was not in the settlor; and see Reed v. O^Brien, 7 Beav. 32; Bridge v. Bridge, 16 
 Beav. 315; Gannon v. White, 2 Ir. Eq. Re. 207.
 
 140 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 settlement, and this reversionary interest he assigned to four trustees 
 upon trust as to 1000/. for himself, his appointees or assigns, and as to 
 the residue upon trust for himself for life, with remainder to Jane his 
 wife for life, with remainder to their issue as they should jointly appoint, 
 and in default of issue as W. B. Cadogan should by deed or will appoint, 
 and in default of such appointment upon trust for Lord Cadogan, the 
 father, his executors, administrators, and assigns. W. B. Cadogan by 
 will appointed Jane his wife sole executrix, and gave her " all his estate 
 and effects." There was no issue, and on the death of W. B, Cadogan 
 Jane his widow filed a bill against the executors of Lord Cadogan (who 
 were in possession of the trust fund, but in what character does not ap- 
 pear,) to have her right to the whole one quarter share of the 20,000?. 
 ^established. Her claim was advanced upon two grounds, 1. That 
 L J supposing the assignment by W. B. Cadogan to be valid, the 
 plaintiff took as appointee under the will in execution of the power. 
 2. That if the assignment were invalid, then the plaintiff took as execu- 
 trix of W. B. Cadogan. The defendants, the executors of Lord Cadogan, 
 insisted that the assignment was valid, but that the will was not an ex- 
 ecution of the power, and, therefore, that the ultimate limitation to Lord 
 Cadogan (subject to the plaintiff's life interest) took effect; and so it 
 was decided. In the course of the argument, Sir W. Grant remarked. 
 " The assignment was as good an assignment as could be made of this 
 reversionary interest; you may be a trustee for a volunteer;" and in his 
 judgment he observed, " It was said that the gift to Lord Cadogan was 
 merely voluntary, and Loi'd Cadogan could not have had any assistance 
 from this court, that the question is the same as if the representatives 
 (of Lord Cadogan) were seeking rc.lir/\ as the circumstance of his exe- 
 cutors having the money makes no difference, and I think that that cir- 
 cumstance is immaterial. But as against the party liimsdf and his 
 representatives a voluntary settlement is binding. The court will not 
 interfere to give perfection to the instrument, but you may constitute one 
 a trustee for a volunteer. Here the fund was vested in trustees. W. 
 B. Cadogan had an equitable reversionary interest in that fund, and he 
 has assigned it to certain trustees, and then the first trustees are trustees 
 for his assigns, and they may come here, for when the trust is created 
 no consideration is essential, and the court will execute it though vol- 
 untary." 
 
 " If," said Sir J. Wigram, " the equitable owner of property, the legal 
 interest of which is in a trustee, should execute a voluntar}'^ assignment 
 and authorize the assignee to sue for and recover the property from that 
 trustee, and the assignee should give notice thereof to the trustee, and 
 the trustee should accept the notice and act upon it, by paying the inter- 
 est and dividends of the trust property to the assignee during the life 
 of the assignor, and with his consent, it might be difficult for the executor 
 or administrator of the assignor afterwards to contend that the gift of the 
 r *9i -1 property *was not perfect in equity, (c) The vice-chancellor here 
 J enumerates all the safeguards and confirmatory acts of which the 
 
 (c) Meek v. Kettlewell, 1 Hare. 471.
 
 FOTcMALITIES REQUIRED TO CREATE A TRUST. 141 
 
 transaction was capable, but it must not be inferred that if some of these 
 were wanting the trust would not be supported. 
 
 In one case((?) the late vice-chancellor of England questioned the prin- 
 ciple of Sloane v. Cadogan. But in Kekewick v. Manning,(e) Lord 
 Justice K. Bruce observed, " Suppose stock or money to be legally vested 
 in A. as a trustee for B. for life, and subject to B.'s life interest for C. 
 absolutely; surely it must be competent to C. in B.'s lifetime, with or 
 without the consent of A. to make an effectual gift of C.'s interest to D. 
 by way of pure bounty, leaving the legal interest and legal title untouched. 
 If so, can C. do this better or more effectually than by executing an 
 assignment to D. ? It may possibly be thought necesssary that notice 
 should be given to A., but upon that we express no opinion." 
 
 These principles have since been acted upon in Voyle v. Hughes,(/) 
 and Sloane v. Cadogan may now be regarded as established law. It had 
 before been contended that the assignment operated by way of contract, 
 and as there was no consideration the court could not enforce it ; but the 
 rule now is, that the assignment passes the equitable estate, and even if 
 notice be not given to the trustees of the fund, the assignment is good as 
 against the assignor. ((/) 
 
 In other cases a party entitled to an equitable interest, instead of 
 assigning it to new trustees, has directed the old trustees to stand pos- 
 sessed of it upon the new trust,(7i) and, of course, it has been considered 
 quite immaterial whether the settlor selected new trustees or was content 
 with the original trustees. 
 
 In other cases the owner of an equitable interest has simply assigned 
 it to a stranger for the stranger's own benefit,(i) *which also in j- ^^2 n 
 principle is the same as Sloane v. Cadogan, for there can be no L "^ J 
 difference between the gift of an equitable interest to A. and the gift of 
 it to B. in trust for A. 
 
 In a late case(A:) it was decided by Sir J. Wigram, that a voluntary 
 assignment of a mere expectancy (as of an heir or next of kin) in an equi- 
 table interest, and not communicated to the trustees, did not amount to 
 the creation of a trust. This was the only point actually decided, and 
 perhaps a distinction may be said to exist between the settlement of an 
 actual interest and an expectancy, for a trust to be enforced must beper- 
 fectly created, whereas any dealing with what a person has not, but only 
 expects to have, must necessarily in some sense be in fieri. However, 
 in the course of his argument the learned judge denied that any distinc- 
 tion existed between settlements of a legal interest, as in Edwards v. 
 Jones, and of an equitable interest, as in Sloane v. Cadogan, two cases 
 which it is submitted, both on principle and authority, ought not to be 
 confounded. Great importance was also attached by his honor to the 
 circumstance that notice of the assignmetit was not given to the trustees. 
 
 (d) Beatson v. Beatson, 12 Sim. 281. (e) 1 De Gex, Mac. & Gord. p. 188. 
 
 ( /) 2 Sm. & Gif. 18. (g) Donaldson v. Donaldson, 1 Kay, 711. 
 
 (/() Rycroft v. Christy, 3 Beav. 238 ; M'Fadden v. Jenkins, 1 Hare, 458, 1 Phill. 
 
 153. 
 
 (i) Cotteen v. Missing, 1 Mad. 176 ; Collinson v. Patrick, 2 Keen, 123; and see 
 Godsall V. Webb, 2 Keen, 99. 
 
 (7c) Meek v. Kettlewell, 1 Hare, 464. 
 
 Janu.\ry, 1858.— 10
 
 142 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 But notice in these cases is not indispensable. As against the settlor, 
 an equitable interest is perfectly transferred -without notice. It is only 
 as between purchasers that the service of notice on the trustee, or the 
 want of it, has a material effect upon the transfer.^ Meek v. Kettle- 
 well was afterwards heard on appeal before Lord Lyndhurst, who affirmed 
 the decision. (m) 
 
 If a complete voluntary settlement be once executed it cannot be re- 
 voked by a subsequent voluntary settlement ',{ii) but a voluntary settlement 
 of land by way of trust, perfectly created is liable, under the 27 Eliz. 
 cap. 4, like a settlement of the legal estate, to be defeated by a subsequent 
 sale to a purchaser, even with notice. And the cestui que trust can 
 neither obtain an injunction against the sale, though the settlement was 
 founded on meritorious consideration, as a provision for a wife 
 L J *or child, (o) nor can follow the estate into the hands of the pur- 
 chaser,(^) nor charge him with misapplication of the purchase-money, 
 if, with notice of the voluntary settlement, he paid it to the vendor,^^) 
 ' nor can come upon the settlor himself to compensate the cestuis que trust 
 for their loss.(r) However, the trust will be executed by the court until 
 the estate be actually sold;(s) and the author of the settlement, if he 
 contract for the sale, cannot himself file a bill to enforce the specific 
 performance, (i) though the purchaser may do so,(w) and though the 
 settlor himself may defeat the trust by a subsequent sale, the heir or 
 devisee of the settlor has no such power ;(i-) but chattels personal (in 
 which respect they differ from chattels real(?r) are not within the statute 
 of 27 Eliz. c. 4, relating io jnirchasers, and therefore a voluntary settle- 
 ment of chatties pereonal cannot be defeated by a subsequent sale. (re) 
 
 Again, a voluntary settlement either of real or personal estate by one 
 virtually insolvent or largely indebted at the time, will by the 13 Eliz. 
 c. 5, be void as against creditors. h/) 
 
 As every agreement under hand and seal carries a consideration upon 
 
 (/) See Burnv. Carvalho, 4 M. & Cr. G90; Donaldson v. Donaldson, 1 Kaj. 711. 
 
 (m) 1 Phill. 342. 
 
 (n) Newton v. Askew, II Beav. 145 ; Rycroft v. Christy, 3 Beav. 238. 
 
 (o) Pulvertoft v. Pulvertoft, 18 Ves. 84. 
 
 (p) Williamson v. Williamson, 1 Yes. 516, per Lord Hardwicke. 
 
 {q) Evelyn v. Templar, 2 B. C. C. 148 ; and see Pulvertoft v. Pulvertoft, 18 Ves. 
 01, 93; Buckle v. Mitchell, 18 Yes. 112 ; but compare Leach v. Dean, (1 Ch. Re. 
 146,) with Pulvertoft v. Pulvertoft, 18 Yes. 91 ; and see 18 Yes. 92, n«te (b). 
 
 (r) Williamson v. Codrington, 1 Yes. 516, per Lord Hardwicke ; but see Leach 
 V. Dean, 1 Ch. Re. 146; S. C. cited Pulvertoft v. Pulvertoft, 18 Yes. 91. 
 
 (s) Pulvertoft v. Pulvertoft, 18 Yes. 94. 
 
 (t) Johnson v. Legard, Turn. & Russ. 294; Smith v. Garland, 2 Mer, 123. 
 
 (m) Willats V. Busby, 5 Bear. 193. 
 
 (y) Doe V. Rusham, 17 Q. B. Rep. 723; Lewis v. Rees, 3 K. & J. 132. 
 
 (w) Saunders v. Dehew, 2 Yern. 272, second note. 
 
 (x) Bill V. Curetou, 2 M. & K 503 ; M'Donel v. Hesilrige, 16 Beav. 346; Jones 
 T. Croucher, 1 Sim. & Stu. 315, (this case cites also the authority of Sir. W. Grant 
 m Sloane V. Cadogan, Append, to Yend. & Purch., but the dictum does not appear :) 
 Meek v. Kettlewell, 1 Hare, 473, per Sir J. Wio-ram. 
 
 {y) Fletcher v. Sidley, 2 Yern. 490; TaylorV Jones, 2 Atk, 600; Townsend v. 
 Westacott, 2 Beav. 340; Skarff v. Soulby, 1 Mac. & Gor. 364; Re Magawley's 
 3 K & J 99 ^^ ^ ^^' ^ ' ^^"^^^^ ^- ^^^"glifin, 3 Drewry, 419 ; Holmes v. Penney,
 
 FORMALITIES REQUIRED TO CREATE A TRUST. I43 
 
 the face of it, and will support an action at law, the inference Las not 
 unfrequently been drawn, that equity in such *a case, though ^ ^^ . 
 the trust has not been perfectly created, will specifically execute L J 
 the contract in favour of volunteers. But the doctrine is at once con- 
 tradicted by the circumstance that equity never enforced a covenant to 
 stand seised to the use of a stranc/er in blood ; and, if we examine the 
 authorities, we shall find there is very little ground in support of the 
 position. In Wiseman v. Koper(2) the covenant was entered into for the 
 purpose of reconciling family diiferences — a consideration always held 
 to be good.(rt) Beard v. Nutthall(Z>) was the case of a bond from a hus- 
 band to the wife, which is not an agreement to do a future act, but the 
 perfect creation of a present debt. In Husband v. Pollard, (c) a lease 
 was assigned to a volunteer, with a covenant to renew, and a court of 
 equity compelled the execution of the covenant as incidental to the lease. 
 In other cases the covenant has been enforced in order to avoid circuity, 
 inasmuch as the trustees, with whom the covenant was entered into, ^ 
 might have recovered at law, not merely nominal damages, but the full 
 value of the estate. (tZ) At all events, it is well settled at the present 
 day, that a voluntary covenant, notwithstanding the solemnity of the 
 seal, will not be specifically executed. (e) 
 
 It has also been sometimes supposed that where the trust is r^nr; -1 
 ^imperfectly created, the court, without proof of vahiahle con- L -I 
 sideration, will act upon meritorious consideration, as payment of debts, 
 or provision for a wife or child.(/) 
 
 The covenant to stand seised to uses, and the jurisdiction of the court 
 in suj)plying surrenders, and aiding the defective execution of poicers, 
 have generally been referred to as establishing, or at least countenancing, 
 this doctrine. 
 
 As regards the covenant to stand seised to uses, it is evident that mere 
 meritorious consideration was not a sufficient ground to attract the juris- 
 
 (z) 1 Ch. Re. 158. 
 
 (a) See Persse v. Persse, 7 CI. & Fin. 279 ; Heap v. Tonge, 9 Hare, 90 ; Dims- 
 dale V. Dimsdale, 3 Drew, 556. 
 
 (b) 1 Vern. 427. 
 
 (c) Cited Randal v. Randal, 2 P. W. 467 ; and see Williamson v. Codrington, 1 
 Ves. 511 ; Harvey v. Audland, 14 Sim. 531. 
 
 (d) Vernon Y. Vernon, 2 P. W. 594 ; Goring v. Nash, 3 Atk. 186; 2nd ground ; 
 S. C. cited,l Ves. 513; Stephens v. Trueman, 1 Ves. 73. 
 
 (e) Hale v. Lambe, 2 Ed. 294, per Lord Northington ; Fursaker v. Robinson. 
 Pr. Ch. 475 ; Evelyn v. Templar, 2 B. C. C. 148; Colman v. Sarel, 3 B. C. C. 12 ; 
 Jeffreys v. Jeffreys, Cr. & Phil. 138 ; Meek v. Kettlevvell, 1 Hare, 474, per Sir J. 
 Wigram ; Fletcher v. Fletcher, 4 Hare, 74, per eundem ; Newton v. Askew, 1 1 
 BeaV. 145; Dillon v. Coppin, 4 Cr. & M. 647 ; Kekewich v. Manning, 1 De G. M. 
 allowed to create a debt in favour of B. ; Fletcher v. Fletcher, 4 Hare, 67 ; and see 
 & G. 188. But a voluntary covenant to pay a sum to A. in trust for B. has been 
 Bridge v. Bridge, 16 Beav. 315. But as the ground of this is, that the covenant is 
 perfect at law and the covenantee could recover upon it, it seems to follow that 
 where only nominal damages would be given at law, a court of equity would not 
 allow proof of the whole sum. See Pulvertoft v. Pulvertoft, 18 Ves. 93 ; Holloway 
 V. Headington, 8 Sim. 324; Cox v. Barnard, 8 Hare, 310; Dening v. "Ware, 22 
 Beav. 184. 
 
 (/) A child may plead meritorious consideration as against the parent, but of 
 course a parent cannot plead it as against the child ; Downing v. Townsend, 
 Amb. 592.
 
 144 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 diction of the court ; for no use would have arisen in favour of a wife or 
 child, unless there had been a covenant. " There are several ways in 
 the law," said Lord Chief Justice Holt, " for declaring of uses, whether 
 upon transmutation of possession or without it. If a use be declared 
 upon transmutation of possession, as in a fine or feoffment, it is sufficient 
 for the party on the transmutation to declare that the use shall be to 
 such a party, and of such an estate ; but if a use arise without transmu- 
 tation of possession, the use then does not arise by virtue of any declara- 
 tion or appointment, but there must be some precedent obligation to 
 oblige the party declaring the use, which must be founded on some con- 
 sideration ; for a use, having its foundation generally on grounds of 
 equity, could not be relieved in chancery without transmutation of pos- 
 session, or an agreement founded on a consideration ; and, therefore, if 
 bargain and sale were made of a man's lands, on the payment of the 
 money the use would have arisen without deed by parol ; hvt, if the use 
 was in consideration ofhlood, then it could not arise hy parol agreement 
 without a deed, because that agreement teas not an ohliging agreement — 
 it icanted a consideration, and therefore, to make it an ohliging agree- 
 ment, there was necessity of a deed."[<j\ Thus, if equity be governed by 
 the strict analogy of uses, the court cannot act upon meritorious con- 
 sideration where the contract is by parol ; and though, where the agree- 
 ment is under seal, the argument of analogy applies, yet it follows not 
 r *Qfi T *^^* equity will now raise a *trust, because formerly it would 
 L -I have created a use : a bargain and sale for 5s. consideration still 
 operates by way of conveyance to transfer the estate : but, should the 
 bargain and sale be void as such for want of an indenture, or an inden- 
 ture duly inrolled, it could not be argued that the agreement at the pre- 
 sent day would be specifically executed upon the basis of a trust. It may 
 further be remarked, that, if the covenant to stand seised to uses were 
 now to regulate the administration of trusts, there would still be no 
 ground for extending the xaWe^io creditors, who, however, it is admitted 
 on all hands, are equally entitled to the benefit of meritorious considera- 
 tion. And the covenant to stand seised to uses extended, we must 
 remember, not only to a wife and child, but also to brothers, nephews, 
 and cousins; but no one, at the present day, would think of admitting 
 the same latitude in the execution of a trust. 
 
 With respect to the jurisdiction of the court in snj-tplying surrenders 
 of copyholds, the principle upon which the relief is founded appears to 
 be this, that as the heir was never meant by the law to take otherwise 
 than in default of the ancestor's will, if the ancestor manifest any inten- 
 tion in favour of a meritorious object, the court will not suffer the 
 mere want of form to carry a benefit to the representative. " I have 
 looked," said Lord Alvanley, " at all the cases I can find, upon what 
 prmeiple this court goes in supplying a defect. It is this — When- 
 ever a man, having power over an estate, whether ownership or not, in 
 discharge of moral or natural obligation shows an intention to execute 
 such power, the court will operate upon the conscience of the heir to 
 
 iff) Jones V. Morley. 12 Mod. IGl.
 
 FORMALITIES REQUIRED TO CREATE A TRUST. 145 
 
 make liim perfect this intention. This is not to be confounded with 
 the case of the heir's being disinherited by a will of freeholds not duly 
 executed : there is no will at all : the court cannot see there is such au 
 instrument : but whenever there is such a power, it has been executed." (/i) 
 
 The ground, upon which the court aids the defective execution o/ 
 powers, will be found upon examination to be precisely that upon pjjcqy -i 
 *which it supplies the surrrenders of copyholds. The power, to L -• 
 the extent to which it may be exercised, is regarded in equity as part of 
 the dominion — as a portion of the actual estate ; and the donee of it is 
 pro tanto the bona fide owner of the property, and the person taking in 
 default of the donee's disposition is a quasi heir.(i) The only distinction 
 between an actual heir and the person taking in default of the power, is 
 this, that the former is so constituted by course of law, while the latter is a 
 quasi heir specially appointed by the settlor. Thus, in aiding the de- 
 fective execution of powers, the court, says, as in supplying surrenders, — 
 the donee of the power, who is the owner of the property to the extent 
 of that power, has indicated an intention of providing for a meritorious 
 object; and the person taking in default of the power, who is a kind of 
 heir, shall not, through want of form, run away with the estate from 
 those who are mu.ch better entitled. 
 
 The authorities upon the subject of meritorious consideration are some- 
 what conflicting, but the results appear to be these :(/c) — 
 
 It is clear that an agreement founded on meritorious consideration 
 will not be executed as against the settlor himself. (^) 
 
 Indeed, relief in such a case would offend against the security of pro- 
 perty ; for if a man will improvidently bind himself by a complete aliena- 
 tion, the court will not unloose the fetters he hath put upon himself, but 
 he must lie down under his own folly ;(m) but if the court interpose 
 where the act is left incomplete, what is it but to wrest property from a 
 person who has not legally parted with it ? Another observation that 
 suggests itself is, that during the life of the settlor the ground of the 
 meritorious consideration scarcely seems to apply ; for can it *be p ^^q^, -, 
 thought to be the duty of a husband to endow his wife, during L J 
 the coverture, with a separate and independent provision ? or is a parent 
 bound by any natural or moral obligation to impoverish himself (for such 
 a case may be supposed) for the purpose of enriching a child ? or has a 
 court of equity the jurisdiction to appropriate a specific fund to creditors, 
 
 (A) Chapman v. Gibson, 3 B. C. C. 230 ; and see Ellis v. Nimmo, Lloyd & Goold, 
 t. Sugden, 341, 348. 
 
 (t) See Holmes v. Coghill, 12 Ves. 213; Coventry v. Coventry, at the end of 
 Francis's Maxims of Equity. 
 
 {k) See Bonham v. Newcomb, 2 Vent. 365 ; Leech v. Leech, 1 Ch. Ca. 249 ; 
 Fothergill v. Fothergill, Freem. 256 ; Sear v. Ashwell, cited Gordon v. Gordon, 3 
 Sw. 411, note; Watts v. BuUas, 1 P. W. 60; Bolton v. Bolton, Serjt. Hill's MSS. 
 77 ; S. C. 3 Sw. 414, note ; Goring v. Nash, 3 Atk, 186 ; Darley v. Darley, 3 Atk. 
 399; Hale v. Lamb, 2 Ed. 292 ; Evelyn v. Templar, 2 B. C. C. 148 ; Colman v. 
 Sarell, 1 Ves. jun. 50 ; S. C. 3 B. C. C.'l2 ; Antrobus v. Smith, 12 Ves. 39 ; Rodgers 
 V. Marshall, 17 Ves. 294; Ellis v. Nimmo, Lloyd & Goold, 333; see cases discussed, 
 App. No. in. 
 
 (I) Antrobus v. Smith, 12 Ves. 39. 
 
 (m) Villers v. Beaumont. 1 Vern. 101, per Cur.
 
 146 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 when, the debtor still living, the presumption of law is, that the creditor 
 can obtain satisfaction of his debt by the usual legal process ? It is 
 after the decease of the settlor that meritorious consideration becomes 
 such a powerful plea in a court of equity. The wife and the children 
 have then lost the personal support of the husband and parent, and who 
 can then have a juster claim to the inheritance of his property ? The 
 creditor is then barred by the act of God of his remedy against the 
 debtor, and, should the assets prove insufficient, how but by the assis- 
 tance of equity can he hope to be satisfied his demand ? Another 
 objection to the execution of a voluntary contract against the settlor 
 himself, at least in respect of land, is the principle expressed by Lord 
 Cowper, that equity, like nature, will do nothing in vain ;(«) as if money 
 be directed to be converted into land, or land into money, the devisee or 
 legatee may elect to take the property in its original state, for, should 
 the court direct an actual conversion, the devisee or legatee might 
 immediately annul the order by resorting to a re-conversion. And so, 
 should the court decree the specific performance of a contract regarding 
 realty for meritorious consideration, the property the next moment might 
 be disposed of to a hona fide purchaser, and the settlement become per- 
 fectly nugatory. Again, if the imperfect gift can be enforced against 
 the settlor himself, then the equitable right must form a lien upon the 
 property, and, upon the death of the settlor, his heir would, in all events, 
 be bound to convey; but, even in aiding the defective execution of 
 powers and supplying surrenders of copyholds, a previous inquiry by the 
 master is invariably directed, whether the heir of the settlor has any 
 other adequate provision. 
 
 r*QQn ^^^ ^^^^ ^ contract founded on meritorious consideration 
 L -J ^though void as against the settlor himself, be enforced as hetween 
 parties claiming under the settlor? It seems to have been always 
 admitted, that if the settlor sell the estate or become indebted, the 
 equity of the cestui qne trust claiming on the ground of meritorious con- 
 sideration, will not bind a purchaser or creditors, (o) But if he subse- 
 quently make a voluntary settlement, or die without disposing of the 
 estate by act inter vivos, will the equity attach as against the volunteers 
 under the settlement, (p) or a devisee,(9) or the heir at law ?(/•) The 
 old cases would rather lead to the conclusion that the ao;reement would 
 be specifically executed, with however the saving clause, that the court 
 would not have enforced it even as against these classes of persons, 
 where they too could plead meritorious consideration (as if they were 
 the children of the settlor,) without a previous inquiry by the master, 
 whether they had any adequate provision independently of the estate.(s) 
 
 (n) Seeley V. Jago, 1 P. W. 389; and see Bellingham v. Lowther, 1 Ch. Ca. 
 243 ; but see Pulvertoft v. Pulvertoft, 18 Ves. 99. 
 
 (o) Bolton V. Bolton, 3 Serjt. Hill's MSS. 11 ■ S. C. 3 Sw. 414, note ; Goring v. 
 ^ash, 3 Atk. 186 ; Finch v. Earl of Winchelsea, 1 P. W. 277 ; and see Garrard v. 
 Lauderdale, 2 R. & M. 453, 454. 
 
 (p) Bolton V. Bolton, ubi supra. fg) ib 
 
 shin I^^'ves''" '?''"'''' ^ ^' ^' ^^ ' ^°""^ ^" ^"^^^ ^ ^'^^^- ^'^^ ' ^O'^g^''^ ^- ^»^- 
 (s) See Goring v. Nash ; Rodgers v. Marshall, ubi supra.
 
 FORMALITIES REQUIRED TO CREATE A TRUST. 147 
 
 At the present day, however, it seems to be established that even as 
 against vohinteers claiming under the settlor, whether with or without 
 any provision aliunde, a voluntary agreement whether under seal or not, 
 whether coupled with a valid trust of other property settled at the same 
 time or not, cannot be enforced on the mere ground of meritorious con- 
 sideration. (^) 
 
 We have laid down the rule that the trust will be enforced when it 
 has been perfectly created, whether there was transmutation of possession 
 or not. It is equally clear that a trust once perfectly created, whether 
 by transmutation of possession or not, cannot be defeated by the subse- 
 <(uent act of the settlor, and that the circumstance of the legal interest 
 becoming revested in the settlor is immaterial. (w) 
 
 *Again, in every case of the creation of a trust, it is ^Qinten- r^-iarp 
 tion that governs; and if upon a consideration of all the circum- L J 
 stances the court is of opinion that the settlor did not mean to create a 
 trust, then, whether there was transmutation of possession or not, the 
 court will not raise up a trust where none in fact was contemplated. 
 
 Thus where a person wrote a letter to his bankers, and directed them 
 to transfer certain sums into the names of himself and three others, as 
 trustees for his wife during her life, and after her death for his son 
 during his minority, and the transfers were effected accordingly, but it 
 appeared in evidence that the settlor never communicated the facts to 
 the other trustees, and that he gave the directions under the impression 
 that he could thus avoid the legacy duty, it was held that the fund had 
 never been placed out of the settlor's power, but he might at any time 
 have revoked the directions, and therefore the money was to be consi- 
 dered as still part of his personal estate. (z-) 
 
 And in another case,(?o) where a testatrix gave a legacy of 100?. to A. 
 and after making her will drew a cheque for 150?. in favour of B. ; and 
 at the same time gave him verbal directions, when the legacy was paid, 
 to make up to the legatee the difference for the 100?. and the price of a 
 share in the London and Birmingham Railway Company, and the sum of 
 150?. was transferred by the bankers, in the testatrix's lifetime, from her 
 account to the account of B. ; the court held that it was a private 
 arrangement between the testatrix and B., and meant to be revocable 
 like the will; and therefore, that B. was merely A.'s agent, and that no 
 trust was created. 
 
 Again, where a person directed his agents to invest a sum in the pur- 
 chase of 4000?. stock in the names of himself and his wife in trust for 
 his son ; and the agents wrote that they had purchased the stock, but 
 that it could not be done as he desired, as the bank did not admit notice 
 of any trust upon their books, and the settlor thereafter treated the 
 
 {t) Jefferys v. JefFerys, 1 Cr. & Ph. 138 ; Aatrobus v. Smith, 12 Yes. 39 ; Evelya 
 V. Templar, 2 B. C. C. 148 ; Holloway v. Headington, 8 Sim. 325. The high 
 authority, however, of Lord St. Leonards is in the opposite scale ; Ellis v. Nimmo, 
 Lloyd & Goold, t. Sugd. 333. ,r ». r. r., n o,- 
 
 (m) Ellison V. Ellison, 6 Yes. 656 ; Smith v. Lyne, 2 Y. & 0. Oh. Oa. 34o ; 
 Paterson V. Murphy, 11 Hare, 88. r^ ,-, ■, n ,-,-. 
 
 (v) Gaskell v. Gaskell, 2 Y. & J. 502. {w) Hughes v. Stubbs, 1 Hare, 4ib.
 
 148 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 stock as his own by receiving the dividends; the court held, 
 L ^^ J *that as the intention had not been carried out, no trust was 
 created, (x) 
 
 Again, where a person, having deposited in a savings bank as much 
 money in his own name as the rules allowed, deposited a further sum in 
 his name as trustee for his sister, but without making any communication 
 to her ; and it appeared that he made such deposit with a view of evading 
 the rules of the bank and not to benefit his sister ; and by the act of 
 parliament he retained the control of the fund ; the court held that no 
 trust was created. (y) 
 
 So a trust for payment of debts, created without the concurrence of 
 the creditors, is construed, though there be transmutation of possession, 
 not as conferring an interest which the creditors could enforce in equity, 
 but as an arrangement between the settlor and his trustees for his own 
 private convenience, and revocable at pleasure. (?) 
 
 Upon a similar principle, it has been held that a grant from the crown 
 of prizes taken in war, to trustees upon trust to distribute in a particular 
 manner amongst the captors, gives them no right which they can enforce 
 in equity ; but the crown may, at any time before the final distribution, 
 recall its directions and substitute others. (o) 
 
 So an ostensible, but not actual cestui que trust, exists where the 
 trustees are directed to pay out of the estate the costs and charges of the 
 management and administration of the trust ; for the persons employed 
 by the trustees have, notwithstanding that declaration, no lien upon the 
 trust fund, but only a remedy against the trustees upon the ground of 
 the contract.(6) However, if there be sl positive direction to ih.eiv\i%iQQS 
 to employ A. as auditor or receiver, and allow him a proper salary, it has 
 RIO'^1 ^^^^ ^q\^ to constitute a trust in favour of A.(f) But if a testa- 
 L "'J tor *merely recominend or express a desire that his trustees should 
 employ A. as receiver, the question is, whether the words used amount 
 to a trust, or only to an expression of opinion and advice : and to disco- 
 ver the meaning, the court examines the provisions of the will, and if it 
 finds that, to consider the words as a trust would be inconsistent with 
 the general character of the will, which assumes that the administration 
 of the estate is to be unfettered by such a trust in favour of A., the court 
 comes to the conclusion that the words were meant only by way of sug- 
 gestion and advice. ((^) 
 
 {x) Smith V. Ward, 15 Sim. 5G. {y) Field v. Lonsdale, 13 Bear. 78. 
 
 (z) Wallwynv. Coutts, 3 Mer. 707; S. C. 3 Sim. 14: Garrard v. Lord Lau- 
 derdale, 3 Sim. 1 ; 2 R. & M. 451. This subject will be treated of under the head 
 of Trusts for the payment of debts. 
 
 (a) Alexander v. Duke of Wellington, 2 R. & M. 35. 
 
 (i) Worrall v. Harford, 8 Ves. 4 : Hall v. Laver, 1 Hare, 571. 
 
 (c) Williams V. Corbett, 8 Sim. 349 ; Hibbert v. Hibbert, 3 Mer. 681 : Consett 
 T. Bell, 1 Y. & C. Ch. Ca. 569. 
 
 r P? F'\^^ ^- I^awless, 1 L. & G. t. Sugd. 154 ; reversed 1 Dr. & Walsh, 512 ; 
 o U. & F. 129; LI. & G. t. Plunk. 559; Finden v. Stephens. 2 Phill. 142: Knott 
 V. Cottee, 2 Phill. 192.
 
 OF THE OBJECT PROPOSED BY THE TRUST. 149 
 
 ^CHAPTER VI. [*103] 
 
 OF THE OBJECT PROPOSED BY THE TRUST. 
 
 Trusts, witli reference to their object, may be distributed into Lawful 
 and Unlaivful; tlie former, such as are directed to some legitimate pur- 
 pose ; the latter, such as are in contravention of the policy of the law. 
 It is almost unnecessary to observe, that, in creating a trust, care must 
 be taken to confine it within allowable bounds. 
 
 SECTION I. 
 
 OP LAWFUL TRUSTS. 
 
 As a general rule, the intention of the settlor, whatever it may be, 
 shall be carried into effect. (a j 
 
 And if the object of the trust do not contravene the policy of the law, 
 the mere circumstance that the same end cannot be effectuated by mould- 
 ing the legal estate, is no argument that it cannot be accomplished 
 through the medium of the equitable. The common law has interwoven 
 with it many technical rules, the reason of which does not appear, or at 
 the present day does not apply; but a trust is a thing sui generis, and, 
 where public policy is not disturbed, will be executed by the court 
 agreeably to the settlor's intention. 
 
 In legal estates a fee cannot, except by executory devise, be limited 
 upon a fee ; but this modification of property was allowable in uses, and 
 by the statute of Hen. 8, has gained admittance *into legal r^^iQ^ 
 estates, and is now matter of daily occurrence in settlements by "- 
 way of trust. (Z>) 
 
 At law, except in executory devises, a freehold contingent limitation 
 must be supported by a freehold particular estate, and if the contingent 
 limitation do not vest at the determination of the particular estate it is 
 extinguished ; but to trusts the rule is held not to be applicable, or, as 
 the doctrine is expressed, the legal estate in the trustees is sufficient to 
 support all the equitable interests.(c) 
 
 At law a chattel real can by tvill only, and not by deed, and a chattel 
 personal can neither by will nor deed, be limited to one person for life, 
 with remainder to another; but in trusts a chattel interest, whether real 
 or personal, can be subjected to any number of limitations, provided there 
 be no perpetuity. " It is objected," said Lord Nottingham, '' that a lease 
 for years, which is a chattel, will not bear a contingent limitation in 
 regard of the poverty and meanness of the estate. Now, as to this point, 
 
 (a) Attorney-General v. Sands, Hard. 494, per Lord Hale ; Pawlett v. Attorney- 
 General, lb. 469; Bacon on Uses, 79; Burgess v. Wheats, 1 Ed. 195, per bir i. 
 Clarke. 
 
 (b) Duke of Norfolk's case, 3 Ch. Ca. 35. 
 
 {c) Chapman v. Blisset, Cas. t. Talb. 145 : Hopkins v. Hopkins, lb. 43.
 
 150 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 the difference between a cliattel and an inheritance is a difference only 
 in words, but not in substance or reason, or in the nature of the thing ; 
 for the owner of a lease has as absolute a power over his lease, as he 
 that hath an inheritance hath over that ; and therefore, when no perpe- 
 tuity is introduced, nor any inconveniency doth appear, there no rule of 
 law is broken. It hath happened sometimes, and doth frequently, that 
 men have no estates at all, but what consist in leases for years ; now, it 
 were, not only very severe, but, under favour, very absurd to say, that he 
 who has no other estate, but what consists in leases for years, shall be 
 incapable to provide for the contingencies of his own family."(f?) 
 
 A testator had devised to one that served the cure of a church, and to 
 all that should serve the cure after him, all the tithes, profits, &c. ; but, 
 as the successive curates were not a body corporate, they were incapable 
 of taking the legal estate : however, equity carried the intention into 
 effect, and decreed the devisee and his heirs to be trustees for the persons 
 ^^ -. intended *to benefited.(e) So on the erection of a chapel, the 
 L J benefit of the endowment cannot, without an act of parliament, 
 be transmitted at law to the successive preachers and their congregations, 
 but the ordinary mode of accomplishing the object is by vesting the legal 
 estate of the property in trustees (with a power of renewing their number 
 on vacancies by death, &c.,) upon trust to permit the preacher and 
 congregation for the time being to have the use and enjoyment of the 
 chapel. 
 
 The limitation of an estate to the poor of a 'parish, would at Jaio be 
 void,(/) because the rules of pleading require the claimants to bring 
 themselves under the gift, and no indefinite multitude, without public 
 allowance, can take by a general name ; but by way of trust they are 
 capable of purchasing, for they assert no title in themselves, but call 
 upon the trustees to observe the dictates of good conscience. ((7) What 
 persons are designated by the description of " poor of a parish" was at 
 «)ne time matter of considerable doubt. Lord Eldon thought, that the 
 fund should be administered without reference to parochial relief; for 
 assistance might be given to a pauper without exonerating the rich from 
 their usual contribution to the rates — to the relief, which the law had 
 provided, further relief might be added, which the parish was not bound 
 to afford. (/i) Besides, the appropriation of the fund to the poor not in 
 receipt of parochial relief might still have the effect of conferring a bene- 
 fit on the rich ; for persons who could not otherwise have maintained 
 themselves might, by means of the charity, be prevented from seeking 
 assistance from the rate.({) However, it has been determined in several 
 cases, and seems, therefore to be now settled, that the charity must be 
 confined to those not in the receipt of parochial relief. (^) 
 
 {d) See Duke of Norfolk's case, 3 Ch. Ca. 32. 
 
 (c) Anon, case, 2 Vent. 349. (/) Co. Lit. 3, a. 
 
 {g) Gilb. on Uses, 44. 
 
 {h) Attorney-General v. Corporation of Exeter, 2 Russ. 51-54. 
 
 (!) See S. C. 3 Russ. 397. 
 
 {k) Attorney-General v. Corporation of Exeter, 2 Russ. 47; S. C. 3 Russ. 395; 
 Attorney-General v. Wilkinson, 1 Beav. 372 ; Attorney-General v. Bovill, M. R. 
 1 July, 1839. But see Attorney-General v. Bovill, 1 Phill. 768, where Lord Cot-
 
 OF THE OBJECT PROPOSED BY THE TRUST. ]51 
 
 *By the 59 Geo. 3, c. 12, s. 17, it is enacted, "That all r=^-,Qp-| 
 buildings, lands, and hereditaments which shall be purchased, L J 
 hired, or taken on lease by the churchwardens and overseers of the poor 
 of any parish, by the authority or for any of the purposes of that act, 
 shall be conveyed, demised and assured to the churchwardens and over- 
 seers of the poor of every such parish respectively and their successors, 
 in trust for the parish ; and such cliurcliwardens, and overseers, and 
 their successors, shall and may, and they are hereby empowered, to ac- 
 cept, take, and hold in the nature of a hody corporate, for and on hehalf 
 of the said parish, all such buildings, lands, and hereditaments, and 
 also cdl other buildings, lands, and hereditaments belonging to such 
 parish." 
 
 By virtue of this enactment, all hereditaments belonging to the parish 
 at the time of the act, or subsequently acquired, whether for a chattehA 
 or freehold interest; and though originally conveyed to express trustees 
 for parish purposes, if it be unknown or uncertain in whom the legal 
 estate is now vested ;(m) or generally where it is unascertained in whom 
 the legal estate is outstanding, but the parish have exercised all the rights 
 of ownership, and the property belongs to them in the popular sense ;(«) 
 are now transferred to the churchwardens and overseers of the parish, 
 not indeed as a corporation and having a common seal,(o) but as persons 
 taking, by parliamentary succession, in the nature of a corporation. (p) 
 
 The act does not extend to copyholds, (g') nor to freeholds of which the 
 trusts are not exclusively for the parish, but also embrace other objects ;(?■) 
 nor to lands vested in existing trustees, and who are actually in discharge 
 of their duties in that *character.(s) However, though a// the r^-ir,>j-i 
 trusts must be for the parish, they may be directed to some L J 
 special trust, if exclusively parochial, as a trust for aiding the church- 
 rates,(/) or furnishing a poor-house, (u) or for the relief of the poor of the 
 parish, whether the objects of the charity be or not held to include 
 those in the receipt of parochial relief; for if non-recipients only of 
 parochial relief are to be admitted, the parish is still benefited by keep- 
 ing that class of poor, by means of the charity, off the parish books, (y) 
 
 tenham is reported to have said, " I am inclined to think that the right course is, 
 to administer the charity, and leave to chance to what extent it may ojjerate to the 
 relief of the poor-rates." The decree, however, seems in the main to be in ac- 
 cordan9e with the previous decisions; and see Attorney-General v. Blizard, 21 
 Beav. 233. (l) Alderman v. Neate, 4 Mees. & Wei. 704. 
 
 (m) Doe V. Hilej', 10 B. & Cr. 885 ; and see Churchwardens of Deptford v. 
 Sketchley, 8 Q. B. Rep. 394. 
 
 {n) Doe V. Terry, 4 Ad. & Ell. 274; Doe v. Cockell, lb. 478. 
 
 (o) Ex parte Annesley, 2 Y. & C. 350. 
 
 Xp) Smith v. Adkins, 8 Mees. & Wei. 362. 
 
 {q) Attorney-General v. Lewin, 8 Sim. 3G6 ; In re Paddington Charities, lb. 629. 
 
 (r) Allason v. Spark, 9 Ad. & Ell. 255 ; Attorney-General v. Lewin, 8 Sim. 366 ; 
 In re Paddington Charities, lb. 629. 
 
 (s) Churchwardens of Deptford v. Sketchley, 8 Q. B. Rep. 394, overruling Rum- 
 ])all V. Munt, lb. 382 ; and see Gouldsworth v. Knight, 11 M. & W. 337. 
 
 (?) Doe V. Hiley, 10 B. & Cr. 885 ; Doe v. Terrv, 4 Ad. & Ell. 274 ; and see Al- 
 lason v. Stark, 9 Ad. & Ell. 266, 267 ; Doe v. Cockell, 4 Ad. & Ell. 478. 
 
 {u) Alderman v. Xeate, 4 Mees. & Wei. 704. 
 
 (r) Ex parte Annesley, 2 Y. & G. 350 ; Churchwardens of Deptford v. Sketch- 
 ley, 8 Q. B. Rep. 394.
 
 152 LEW IX ox THE LAW OF TKUSTS, ETC. 
 
 Again, an advoioson may be vested in trustees, upon trust for the 
 a parishioners and inhabitants,'' that is, the parishioners, being inhabi- 
 tants(w) of a parish. 
 
 A trust of this kind is not considered a charity, but is administered 
 on the footing of any ordinary trust, and application must be made to 
 the court not by way of information, but by bill. (a;) 
 
 From the infinite mischiefs arising from popular election, (_y^ the court, 
 where the settlement does not expressly give the election to the parishioners, 
 or usage has not put such a construction upon the instrument, will infer 
 the donor's intention to have been, that the trustees should themselves 
 exercise their discretion in the election of a clerk for the benefit of the 
 r*i OST P^ris^ j(~) ^^^ ^^ ^^^ language of the instrument, or the ^''evidence 
 L J of common usage, prevent such a construction, then the parishion- 
 ers, as the cestuis que trust and beneficial owners of the advowson, will 
 be entitled to elect, and the trustees will be bound to present the per- 
 son upon whom the choice of the electors shall fall.(«) Had the point 
 been unprejudiced by decision. Lord Eldon doubted whether the court 
 could execute such a trust, at least otherwise then cy pres ;(6) but, as 
 authority has now clearly settled that the court must undertake the 
 trust notwithstanding the difficulties attending it, the only subject for 
 inquiry is, in what manner a trust of this kind shall be executed. 
 
 The expression '< parishioners and inhabitants" is in itself extremely 
 vague, and has never acquired any very exact and definite meaning ;(c) 
 but, this doubt removed, another question to be asked is, are women, 
 children, and servants, who are parishioners and inhabitants, to be 
 allowed to vote ? It seems the extent of the terms must be taken secun- 
 dum suhjeciam materiam, with reference to the nature of the privilege 
 the cestuis que trust are to exercise,(^/) and, if so, none should be ad- 
 mitted to vote, who, from poverty, infancy, or coverture, are presumed 
 not to have a will of their own.(e) In a case, where the election was 
 given to "the inhabitants and parishioners, or the major part of the 
 chiefest, and discreetest of them," it was held that, by chic/est, was to 
 be understood those who paid the church and poor rates, and by discreet- 
 
 (w) Fearon v. Webb, 14 Ves. 24, per Chief Baron M'Donald ; lb. 26, per Baron 
 Graham; Wainwright v. Bagshaw, Rep. t. Hardwicke, by Ridg. 56, per Lord 
 
 Hardwicke. 
 
 (x) Attorney-General v. Forster, 10 Ves. 344 ; Attorney General v. Newcombe, 
 14 Ves. 1 ; Fearon v. Webb, lb. 19. 
 
 (y) See, in addition to the cases cited in the next note, the observations of Vice- 
 Chancellor Knight Bruce, Attorney-General v. Cuming, 2 Y. & C. Ch. Ca. 158, 
 and 19 k 20 Vict. cap. 50, authorizing the sale of advowsons held upon trust for 
 parishioners. 
 
 (z) See Edenborough v. Archbishop of Canterbury, 2 Russ. 106, 109 ; Attorney- 
 General V. Scott, 1 Ves. 413 ; Attorney-General v. Foley, cited lb. 418. 
 
 (a) Attorney-General v. Parker, 3 Atk. 577, per Lord Hardwicke ; Attorney- 
 General V. Forster, 10 Ves. 338, 341, per Lord Eldon ; Attorney-General v. New- 
 combe, 14 Ves. 6, 1,per eundem. 
 
 (b) Attorney-General v. Forster, 10 Ves. 340, 342. 
 
 (c) See Attorney-General v. Parker, 3 Atk. 577 ; Attorney-General v. Forster, 
 10 Ves. 339, 342 ; see further as to the ClerkenweU case, Carter v. Cropley, 26 L. 
 J. N. S. (Ch.) 246. 
 
 {d) See Attorney-General v. Forster, 10 Ves. 339. 
 , (e) See Fearon v. Webb. 14 Ves. 27.
 
 OF THE OBJECT PROPOSED BY THE TRUST. 153 
 
 ci^t, those who had attained the age of twenty-one ;(/) But Lord Hard- 
 wicke said, that, even where " parishioners and inhabitants" stood 
 tcithout any restriction at all, it was a reasonable limitation to confine 
 the meaning to those who paid scot and lot, that is, who paid to church 
 and poor ; {(j) and so, in a previous case, it seems *his lordship pj^Qg-i 
 had actually determined. (A) The Court of Exchequer adopted L J 
 a similar construction in the Clerkemoell case,[i) though it does not 
 appear how far the court was guided in its judgment by the evidence 
 of the common usage •,(Jc) and Lord Eldon, in a subsequent ease, restrict- 
 ed the election to the same class, but his lordship's decree was 
 possibly founded on the circumstance, that those only who paid scot and 
 lot were admitted to the vestry ;(m) (not that, for the purpose of election, 
 the vestry is the representative of the parish,(?i) but in one of the oldest 
 documents the trust was said to be for " the parishioners of the said 
 parish at a vestry or vestries to he from time to time liolden for the said 
 2}arish."(o) ) But, where the instrument creating the trust contains 
 merely the words " parishioners and inhabitants," the court will not 
 confine the privilege of voting to those paying scot and lot, if it appears 
 from constant usage that the terms are to be taken in a wider and more 
 extensive signification, to include, for instance, all househeepers, whether 
 paying to the church and poor or not.(p) By persons paying to the 
 church and poor must be understood persons liahle to pay, though they 
 may not have actually paid 5(5') but it seems to be a necessary qualifica- 
 tion that they should have been rated,{r) unless, perhaps, the name has 
 been omitted by mistake,(s) or there is the taint of fraud. («) 
 
 With respect to the mode in which the votes are to be taken, it is clear 
 that the election cannot be conducted by ballot, not only on the general 
 principle that the ballot is a form of proceeding unknown to the common 
 law of England,(w) but also *on the ground, that the trustees r*]^;^Q-| 
 have a right to be satisfied, that the person they present to the L ^ 
 bishop has been the successful competitor ; whereas in election by ballot 
 there are no means of ascertaining for whom each particular elector 
 voted. («) The choice of the candidate must therefore be determined by 
 one of the modes known to the common law, viz. either by poll or a show 
 of hands.(ic) However, the cestuis que trust may expresshj a^ree among 
 
 (/) Fearon v. Webb, 14 Ves. 13. 
 
 (g) Attorney-General v. Parker, 3 Atk. 5V7 ; S. C. 1 Ves. 43. 
 
 (A) Attorney-General v. Davy, cited lb. ; S. 0. 2 Atk. 213. 
 
 (j) Attorney-General v. Rutter, stated 2 Russ. 101, note. 
 
 {k) See Attorney-General v. Forster, 10 Ves. 345. 
 
 (l) Eslenborongh v. Archbishop of Canterbury, 2 Russ. 93. 
 
 Im) See lb. 110. 
 
 (n) Attorney-General v. Parker, 3 Atk. 578, per Lord Hardwicke ; Attorney- 
 General V. Forster, 10 Ves. 340, 344, per Lord Eldon. 
 
 (0) See Edenborough v. Archbishop of Canterbury, 2 Russ. 94. 
 
 (p) Attorney-General v. Parker, 3 Atk. 576 ; S. C. 1 Ves. 43. 
 
 (q) See Attorney-General v. Forster, 10 Ves. 339, 346. 
 
 (r) Edenborough v. Archbishop of Canterbury, 2 Russ. 110. 
 
 (s) Edenborough v. Archbishop of Canterbury, 2 Russ. 110. 
 
 (t) S. C. lb. 111. (m) Faulkner v. Elger, 4 Barn. & Cress. 449. 
 
 (v) Edenborough v. Archbishop of Canterbury, 2 Russ. 105, 108, 109, per 
 Lord Eldon. 
 
 («•) See lb. 106, 110.
 
 154 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 themselves that they will abide by the declaration of the result of the 
 ballot, and will ask no questions how the individual votes were given ; or 
 such a contract may be inferred from long and clear antecedent usage.(.r) 
 But it is said an agreement of this kind can apply only to each particular 
 election as it occurs, for any one parishioner has a right to insist that the 
 coming election shall be conducted on a different principle ; it would be 
 ■a bold thing to say, that the parish of to-day could bind the parish of to- 
 morrow to deviate from the original and legitimate mode.(?/) A contract 
 between the cestuis que trust in favour of the ballot is also open to the 
 objection, that the right of voting in the election of a clerk is a privilege 
 coupled with a puUic duty, and it may be doubtful whether a court of 
 equity would enforce the result of an election, where it cannot be ascer- 
 tained whether the voters, in the exercise of their right, have fairly and 
 honestly discharged that duty. (2) 
 
 Again, upon principles founded on the Law of Tenure, the freehold in 
 jjrcesenti must be vested in some person m esse ; but under the system of 
 trusts, which are wholly independent of feudal rules, a settlor may direct 
 the accumulation of rents and profits, and it docs not vitiate the trust 
 that there is no ascertained owner of the equitable freehold in posses- 
 sion, (a) 
 
 But trusts for accumulation must be confined within the limits esta- 
 blished against perpetuities. A settlor is permitted (by analogy to the 
 duration of a regular entail under a common law conveyance) to fetter 
 l-jj,^ ^ ^ ^ the alienation of property for a life or *lives in being and twenty- 
 «- -I one years ; and the power of preventing the enjoyment of property, 
 by directing the accumulation of the annual proceeds, is restricted to the 
 same period. If the trust exceed this boundary, it is void in toto, 
 and cannot be cut down to the legitimate extent.(i) Thus, where an 
 estate was limited to trustees for a term of 1000 years, and subject 
 thereto in strict settlement, and the trusts of the term were, as often as 
 any tenant for life or in tail should be a minor, to accumulate the rents, 
 and apply them in discharge of incumbrances, and to pay the surplus to 
 the first tenant for life, or in tail, who should attain twenty-one, the 
 trust was declared void dh initio, as the minorities of the successive 
 tenants for life and in tail might travel through a century. (c) 
 
 But there is no accumulation, and therefore no danger of a perpetuity, 
 where the rents are applicable as a vested interest dc anno in annum. 
 Thus, where a testatrix devised a term which had 33 years to run, upon 
 trust, from time to time, to lay out the profits in the purchase of lands 
 to be settled on A. for life, remainder to B. in tail, remainders over, in- 
 asmuch as the cestuis que trust could at anytime call for the investment 
 of the rents in land; and when B. attained his age, and could suffer a 
 
 {x) See supra, note (i'), 105, 106, 108, 109. 
 
 (y) See lb. 106. (z) See lb. 109. 
 
 (a) See Fearne's C. R. by Butler, 537, note {x). 
 
 {b) Marshall v. Holloway, 2 Sw. 432 ; Lord Southampton v. Marquis of Hert- 
 tord, 2 V. & B. 54 ; Curtis v. Lukin, 5 Beav. 147 ; Boughton v. James, 1 Coll. 26 ; 
 oAn ■ ^'^ ^'^y^'^h ^ ^0"se of Lords Cases, p. 406 ; Browne v. Stoughton, 14 Sim. 
 369 ; Scarisbnck v. Skelmersdale, 17 Sim. 187 ; Turvin v. Newcome, 3 K. & J. 16. 
 
 (c) Lord Southampton v. Marquis of Hertford, 2 V & B 54
 
 OF THE OBJECT PROPOSED BY THE TRUST. I55 
 
 recovery, A. and B. were entitled to call for tlie assignment of the lease ; 
 it was held the trust was good.(cZ) And, in another case, where the 
 rents were directed to be accumulated, at compound interest, until they 
 amounted to a sufficient sum to discharge two incumbrances on the estate, 
 amounting to 2500/. each; and then to be further accumulated until 
 they amounted to a sufficient sum to discharge two other incumbrances 
 of 4000?. and 2000/. ; Baron Graham observed, " there was no accumu- 
 lation for the purpose of suspension." (e) In *this case however, ^^-. , ^-, 
 there seems to have been strictly and substantially an accumula- •- "'J 
 tion. It is possible that the amount of the annual rents being ascertained, 
 and the incumbrances known, it was found that the time required for 
 discharging the incumbrances would not exceed the proper limits. 
 
 In Curtis v. Lukin^/) a testator gave to the trustees certain lease- 
 holds in Church-street, which had more than 60 years to run, upon trust 
 for A. for life, with remainder to her children, and in default of children 
 to B. He then gave other leaseholds to the same trustees upon trust to 
 accumulate the rents until the lease in Church-street sliould he nearly 
 expired, and then to apply a competent sum in the renewal of that lease 
 for the benefit of the parties entitled thereto under the will, and the 
 residue of the accumulations he gave to A., B., and C. The lessor of 
 the premises in Church-street was under no obligation to renew, and 
 therefore the sum to be paid if a renewal could be obtained was uncer- 
 tain. It was argued, that all interests must be vested within a life in 
 being and 21 years, so that there was no perpetuity ; but it was answered, 
 that the amounts of the respective interests were uncertain until the 
 renewal was effected ; and if all the parties could not agree in the distri- 
 bution of the fund, the accumulation must proceed, and the court was 
 of opinion that the trust was void. 
 
 The 39 & 40 Geo. 8, c. 98, commonly called the Thellusson Act, or 
 Lord Loughborough's Act, has now further restricted the period of accu- 
 mulation, by declaring that " no person shall, by deed, surrender, will, 
 codicil, or otherwise howsoever, settle or dispose of any real or personal 
 property, so as that the rents, issues, profits, or produce thereof shall be 
 wholly or partially accumulated for any longer period than the life or 
 lives of any such grantor or grantors, settlor or settlors ; OR the term of 
 21 years from the death of any such grantor, settlor, devisor, or testa- 
 tor ; OR during the minority, or resj^ective minorities, of any person or 
 persons who shall be living, or in ventre sa mere, at ^the time ^^^^^^ 
 of the death of such grantor, devisor, or testator ; OR during the L -• 
 minority, or respective minorities, of any person or persons icho tinder 
 the uses or trusts of the deed, surrender, will, codicil, or other assurance 
 directing such accumulations, would, for the time heing, if of full age, 
 
 {d) Phipps T. Kelynge, 2 V. & B. 57, note (b). 
 
 [e) Bacon v. Proctor, 1 T. & R. 31 ; and see Bateman v. Hotchkin, 10 Beav. 
 426, where the trust was supported on the ground that there was no perpetuity, 
 but that on the eldest son attaining twenty-one, he could dispose of the estate, 
 and stop the accumulation ; and see Briggs v. Earl of Oxford, 1 De Gex, M. & G. 
 363. 
 
 (/) 5 Beav. 147.
 
 156 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 he entitled unto the rents, issues, and profits, or the interest, dividends, 
 or annual produce so directed to be accurmdated." 
 
 The following points have been resolved upon the construction of this 
 act : — 1. The statute embraces simple as well as compound accumula- 
 tion. By the former is meant the collection of a principal sum by the 
 mere addition of the annual proceeds, while the interest upon the accu- 
 mulating fund either results undisposed of to the settlor or his represen- 
 tative, or passes to the residuary devisee or legatee. Compound accu- 
 mulation is, where not only the rents are added together, but the fund 
 is further increased by the interest upon the rents. 2. The act applies, 
 though the accumulating fund be from the first a vested interest, so that not 
 the right to the enjoyment, but only the actual enjoyment, is suspended ; 
 as where a settlor directs the rents to be accumulated for a life in being 
 and twenty-one years, for raising a certain sum for A., to be paid to him 
 on the completion of the accumulation ; so that A. has a vested interest 
 in the rents as they arise, but the settlor having directed simple accu- 
 mulation only, the interest, on the rents is applicable to other purposes, 
 and A. cannot call for the transfer till the rents have amounted to the 
 requisite sum. 3. An accumulation can be directed for one only of 
 the periods allowed by the statute, and not for two of the periods com- 
 bined. (</) 4. The accumulation, though directed to commence not at 
 the testator's death, but at some subsequent period, must still, terminate 
 at the expiration of twenty-one years from the testator's death, (A) and 
 the term of twenty-one years is to be reckoned exclusive of the day on 
 which the testator died.(t) 5. If the trust exceeds the limits prescribed 
 r*nJ.i ^y *^^^ statute, but not the limits allowed *by the common law, 
 L -I the accumulation will be established to the extent permitted by 
 the act, and will be void for the excess ouly.^A-) 
 
 A leading case upon this subject is Shaw v. Rhodes. (Z) A testator, 
 having three children, devised all his estates to trustees upon trust to 
 pay them certain annuities, and subject thereto, 1, upon trusts to accu- 
 mulate the rents for the benefit of his grandchildren, born or to be born, 
 until the youngest should attain twenty-one, at which time the accumu- 
 lations should be distributed amongst the grandchildren then living ; 2, 
 and in case any of his three children should be living at the time the 
 youngest grandchild attained twenty-one, he directed the rents to be 
 further accumulated till the death of the survivor of the children, the 
 accumulation to be divided between the grandchildren then living ; 3, 
 and after the decease of the survivor of the children, that his estates 
 " should stand charged for twenty years with the payment (out of two- 
 third parts of the rents) of so much money as would in fifteen years make 
 30,000L ; the said sum, and the interest and produce thereof, to be 
 divided amongst his grandchildren who should live to attain twenty-one ;" 
 
 [g) Wilson v. Wilson, 1 Sim. 288, N. S. 
 
 (h) Attorney-General v. Poulden, 3 Hare, 555. 
 
 (i) Gorst V. Lowndes, 11 Sim. 434. 
 
 {k) Griffiths V. Vere, 9 Ves. 127 ; Longdon v. Simson, 12 Ves. 295 ; Haley v. 
 Bannister, 4 Mad. 275 ; Shaw v. Rhodes, 1 M. & C. 135 ; Crawley v. Crawley, 7 
 feim. 427 ; Attorney-General v. Poulden, 3 Hare, 555. 
 
 {I) 1 M. k C. 135; S. C, as Evans v. Hellier, 5 CI. & Fin. 114.
 
 OF THE OBJECT PROPOSED BY THE TRUST. 157 
 
 and, subject thereto, lie devised the estates to his eldest son iu tail, with 
 remainder over. The testator died in 1812. The youngest grandchild 
 attained his age in 1830. The surviving child died in 1831. The 
 first accumulation, which expired in 1830, and the second accumu- 
 lation, which expired in 1831, were both established, as falling within 
 twenty-one years from the testator's decease. With respect to the 
 third accumulation, the clause was construed to mean that 1500/. per 
 annum (if two-thirds of the rents would yield so much) should be 
 laid by for fifteen years, and if the 30,000?. were not then raised, 
 the like accumulation should be made for five years more, till the 
 30,000/. should be completed ; that the proceeds arising out of the rents, 
 until the 30,000/. should be raised, were not meant to fall into the accu- 
 mulating *fund, and increase the capital, but should pass to the p^^j^^-i 
 residuary devisee of the estates. It was urged that the act eon- L J 
 templated a compound accumulation only, and not, as this was, a simple 
 accumulation ; and that here the right to the rents was not suspended, 
 but each instalment, as it was paid, became a vested interest : but the 
 court held, that allowing the annual instalments to be vested interests, 
 yet, as the produce of the fund, till the 30,000/. should be completed, 
 would belong to other parties, the rents until that time were not actually 
 recoverable by the legatees, and must therefore be considered as accu- 
 mulated within the act. The trust, therefore, was supported up to 1833, 
 the expiration of twenty-one years from the testator's death, and for the 
 residue was declared void. 
 
 In another case a testator gave his general personal estate to trustees 
 in trust for all the children of A. and B. (who both outlived twenty-one 
 years from the testator's death,) to be a vested interest in the children, 
 being sons, at their ages of twenty-one years, or, being daughters, at 
 those ages, or on their days of marriage, with a clause of survivorship ; 
 but the shares were not to be paid until the death of the survivor of A. 
 and B., and the testator appointed C. residuary legatee. An accumula- 
 tion was thus imjylied until the death of the survivor of A. and B., as up 
 to that time it could not be ascertained how many children would be 
 born ; but at the expiration of twenty-one years from the testator's death 
 the accumulation would be void, unless it fell under some exception in 
 the statute. At the testator's death, A. and B. had no children, but B. 
 afterwards had children. It was argued, that as the shares vested at 
 twenty-one or marriage, the accumulation of each child's share during 
 the minority of such child was good, it being within the exception of 
 the act which allows an accumulation " during the minority of a person 
 who would, for the time being, if of full age, be entitled to the annual 
 produce." It was further argued, that the accumulation of each child's 
 share, after his interest vested, was good, as the Thellusson Act had no 
 application where the right was vested, and only the enjoyment sus- 
 pended ; but the court overruled both grounds, and held all accumula- 
 tions after twenty-one years from the ^testator's death to be void, r*j;^Q-i 
 and to pass with the residue. (/) It will be observed that in this L J 
 
 (I) Ellis V. Maxwell, M. S., and 3 Beav. 587. 
 
 January, 1857. — 11
 
 158 
 
 LEWIX ON THE LAW OF TRTSTS, ETC. 
 
 instance tlie accumulation was not expresdy directed but %m:plied in the 
 nature of the bequest, and it has been held in other cases that the sta- 
 tute applies to such a gift.(m) The late vice-chancellor of England, 
 however observed that the statute was meant only to put an end to 
 accumulations expre^dy directed ;(«) and in a subsequent case before 
 him decided in accordance with this view.(o) And in a more recent 
 case, where a sum was given to the eldest daughter of A., and if there 
 should be none such, then to the eldest daughter of B., and A. had no 
 daughter, and twenty-one years from the testator's death elapsed in the 
 lifetime of A., it was held that the fund must go on accumulating until 
 a recipient of the legacy could be ascertained, and that the case was not 
 within the statute, and as A. died afterwards without issue, the master 
 of the rolls held that the eldest daughter of B. was entitled to the legacy 
 and the accumulations. (^) And the same principle was again applied 
 by the master of the rolls in the case of Tench v. Cheese.(5) The 
 latter case was reversed on appeal by the lord chancellor and lords justices, 
 but upon the ground that as the will was worded, an accumulation was 
 expressly directed. (/•) The lord chancellor, however, took occasion to 
 observe that the distinction taken by the master of the rolls between 
 an accumulation expressed and an accumulation impUed was unsound 
 and impossible ; and he justly remarked as to the case of infancy, that 
 if of age, the infant, instead of spending, might accumulate the rents, 
 and the court did no more than exercise a discretion for the infant, 
 which was a very different thing from creating a suspense fund to go to 
 somebody who had no title during the accumulation. 
 
 The statute proceeds to declare, that " the produce of the property, so 
 long as the same shall be directed to be accumulated contrary to the 
 r*i 1 -1 provisions of the act, shall go to and be ^received by such person 
 L -J or persons as would have been entitled thereto if such accumula- 
 tion had not been directed." 
 
 In a case before Lord Eldon, a testatrix had directed her trustees to 
 pay an annuity to A., and the rest of the interest to B. and C. equally 
 for their lives, and the whole to the survivor for her life, provided that 
 the interest due to B. during the life of her husband should not be paid 
 to her, but should, during his life, be accumulated; the fund on his 
 decease to be paid to B., if living, or, if dead, to D. The accumulation 
 was established for twenty-one years from the testator's death ; but in 
 case B. and her husband survived that period, to whom was the excess 
 during the residue of the husband's life to belong? Was the gift to B. 
 to stand alone, and the subsequent proviso for accumulation to be struck 
 out; or were the gift and the accumulation to be coupled together, and 
 hoth to be void, so that the excess of interest should result ? It was not 
 necessary to decide the question, and Lord Eldon merely observed, " it 
 was not clear upon the will that there was a gift in prccsenti, if the 
 
 (to) M'Donald v. Bryce, 2 Keen, 27C ; Morgan v. Morgan, 4 Be Gex.& Sm. 170. 
 
 (n) Elborne v. Goode, 14 Sim. 165. 
 
 (o) Corporation of Bridgenorth v. Collins, 15 Sim. 538. 
 
 (p) Bryan v. Collins, 16 Beav. 14. 
 
 iq) Tench v. Cheese, 19 Beav. 3 ; now reported, 6 De Gex, M. & G. 453. 
 
 (r) 1 Jur. N. S. G89.
 
 OF THE OBJECT PROPOSED BY THE TRUST. 159 
 
 declaration for accumulation were struck out, for the whole must be taken 
 together, (s) 
 
 In a subsequent case, where a fund was given upon trust for the 
 testator's daughter for life with remainders over, and the testator directed 
 that if the income exceeded 200?. per annum, the surplus should be 
 accumulated, but the period of accumulation was not limited to twenty- 
 one years, the master of the rolls held that the testator's daughter was 
 entitled to the excess beyond 200?. per annum from the expiration of 
 the twenty-one years, but in what character the daughter was so entitled 
 does not appear. Probably the daughter was the testator's heiress-at-law, 
 so that it was immaterial to consider whether the heiress-at-law or the 
 tenant-for-life was entitled. (^) 
 
 In another case,(rt) a testator directed accumulations, and then devised 
 the estates, charged and chargeable as aforesaid, to Thomas, the eldest 
 son of the testator's son, James Shaw, in tail, with remainder over, and 
 it appears that Thomas took the ^benefit of the void accumula- r^^lgT 
 tions. But the question, who was entitled to the accumulations, L J 
 supposing them to be void, was not argued in the court below, and only 
 glanced at on the appeal. (t') James Shaw, who was probably the tes- 
 tator's heir, had died before the institution of the suit, and his eldest 
 son Thomas may have been also the heir-at-law of the testator. 
 
 If there be a series of limitations, and one of them be upon trust to 
 accumulate the rents beyond the limits allowed by the act, the subse- 
 quent limitations are not accelerated, but the interim limitation, which 
 is void under the act, will result for the benefit of the heir-at-law, (?«) 
 and if the resulting trust be a chattel interest, it will devolve, on the 
 death of the heir, on his personal representative ;(.:<;) and if the resulting 
 interest be an estate pur autre vie, it is the better opinion that it also 
 goes to the heir's personal representative. (^) If the heir of the heir be 
 entitled to an estate -pur autre vie, under the words of the Thellusson 
 Act, why not also to a chattel interest? But under the late "Wills Act, 
 1 V. c. 26, s. 25, if the will contains a residuary devise, and there be no 
 evidence of a contrary intention on the face of the will, the void accu- 
 mulations will go to the residuary devisee. In personal estate, if there 
 be a residuary legatee, the excess beyond the allowed period of accumu- 
 lation will fall into the residue,(s) and where the residue is settled on A. 
 for life, remainder to B., will form part of the capital.(rt) And if the 
 
 (s) Griffiths v. Vere, 9 Ves. 127, see 135. 
 
 (t) Trickey v. Trickey, 3 M. & K. 560. 
 
 (m) Shaw V. Rhodes, 1 M. & Cr. 135; S. C. by the name of Evans v. Hellier, 5 
 Clarke & Fin. 114. 
 
 (v) See 5 CI. & Fin. 127. 
 
 (w) Eyre v. Marsden, 2 Keen, 564 ; Nettleton v. Stephenson, 3 De Gex & Sm. 
 366; Edwards v. Tuck, 3 De Gex, Mac. & Gord. 40; Re Drakeley's Trust, 19 
 Beav. 395. 
 
 (x) Sewell V. Denny, 10 Beav. 315. 
 
 (y) Barrett v. Buck, 12 Jur. 771 ; see Halford v. Stains, 16 Sim. 488, contra. 
 • (2) Haley v. Bannister, 4 Mad. 275 ; O'Neill v. Lucas, 2 Keen, 313 ; Webb v. 
 Webb, 2 Beav. 493 ; Attorney-General v. Poulden, 3 Hare, 555 ; Jones v. Maggs, 
 9 Hare, 605 ; Re Drakeley's Trust, 19 Beav. 395. 
 
 (a) Crawley v. Crawley, 7 Sim. 427.
 
 160 LEWIN ON THE LAW OF TKUSTS, ETC. 
 
 subject of the accumulation be tbe income of the residue itself, the void 
 accumulations will, according to the nature of the residue, i. e. real en- 
 personal, result to the heir-at-law or to the next of kin. (6) 
 
 *Lastlj, the statute provides, that "nothing in the act con- 
 [*119] ^.^jjjgjj gjjall extend to any provision ior jKiyment of cleUs{c) of 
 any grantor, settlor, or devisor, or other person or persons,(cZ) or for 
 raising portions for any child of the settlor or devisor, or any person 
 taking an interest under the settlement or devise, or to any direction 
 touching the produce of timber or wood." By children must, of course, 
 be exclusively understood legitimate children ;(e) and by the words 
 taking an interest, the act has been construed to mean taking a suh- 
 stantial interest. A small annuity, for instance, to the parent, would 
 not justify an accumulation of the residue of the rents beyond the limits 
 of the act for raising portions for the children. (/) And the accumula- 
 tion to be protected by the clause must be a provision for raising portions 
 out of the corpus, not an accumulation of the corpus itself, for the pur- 
 pose of making a gift of the aggregate fund, ((7) and must be a provision 
 for children certain, and not a chance limitation in favour of any child 
 that may happen to survive certain persons not necessarily standing in 
 the relation of parent and child, but uncles or aunts, &c.(/i) And by 
 " taking an interest under the devise" it was once considered that not 
 any interests in a large sense under the icill were meant, but under the 
 particular gift, devise, or bequest, which contains the provision for accu- 
 mulation. (i) But this view has been since overruled, so that now, if the 
 person take a substantial interest in any property, under the will, it is 
 r*19m sufficient.(A-) *The portions intended by the act are not neces- 
 L " J sarily portions created by the deed or will directing the accumu- 
 lation, but may be portions pre-existing. (^) 
 
 Scotland is expressly excepted from the act ; and, as the statute was 
 passed a short time before the union with Ireland, it is presumed that 
 freeholds in that country are also unaffected by it. 
 
 Another modification of property, unknown to the common law, but 
 
 (6) M'Donald v. Brjce, 2 Keen, 276 ; Eyre v. Marsden, 2 Keen, 564 ; Pride v. 
 Fooks, 2 Beav. 430; Elborne v. Goode, 14 Sim. 165 ; Bourne v. Buckton, 2 Sim. 
 N. S. 91 ; Edwards v. Tuck, 3 De Gex, Mac. & Gord. 40. 
 
 [c) Bateman v. Hotchkin, 10 Beav. 426. 
 
 [d) The words " any other person or persons" mean the debts of any stranger 
 whomsoever ; see Barrington v. Liddell, 2 De Gex, Mac. & Gord. 497 ; 10 Hare, 415. 
 
 [e) Shaw v. Rhodes, 1 M. & C. 135, see 159. 
 
 {/) S. C. see 159 ; and see Bourne t. Buckton, 2 Sim. N.S. 91 ; but see Evans 
 V. Hellier, 5 CI. & Fin. 127; Barrington v. Liddell, 2 De Gex, Mac. & Gord. 500 ; 
 Edwards v. Tuck, 3 De Gex, Mac. & Gord. 63. 
 
 {(j) Eyre v. Marsden, 2 Keen, 564; Bourne v. Buckton, 2 Sim. N.S. 91 ; Tuck 
 v. Edwards, 3 De Gex, Mac. & Gord. 40 ; Jones r. Maggs, 9 Hare, 605 ; Wildes v. 
 Davies, 1 Sm. & Gif. 475 ; and see Beech v. St. Vincent, 3 De Gex & Smale, 678. 
 Li Burt V. Sturt, 10 Hare, 427, this was said to be "a shadowy distinction.'' 
 [h) Burt V. Sturt, 10 Hare, 415. 
 
 (i) Bourne v. Buckton, 2 Sim. N.S. 91, see 101 ; Mor^-an v. Morgan, 4 De Gex 
 & Smale, 164. 
 
 (k) Barrington v. Liddell, 10 Hare, 415, 2 De Gex, Mac. & Gord. 500 ; Edwards 
 V. Tuck, 3 De Gex, Mac. & Gord. 40 ; Burt v. Sturt, 10 Hare. 415. 
 
 {I) Halford v. Stains, 16 Sim. 488 ; Barrington v. Liddell, 2 De Gex, Mac. & 
 Gord. 498; Middleton v. Losh. 1 Sm. & Gif. 61 ; and see Burt v. Sturt, 10 Hare, 415.
 
 OF THE OBJECT PROPOSED BY THE TRUST. 161 
 
 which has been admitted into trusts, is, where property, real or personal, 
 is settled to the separate use of a /erne covert, so as to exclude the control 
 of her husband. The principle at common law is, that, as the husband 
 undertakes the debts and liabilities of the wife, he is entitled, absolutely 
 or partially, according to the circumstances of the case, to the enjoyment 
 of her property; but in equity a /erne is allowed to contract with the 
 husband before marriage, for the exclusive enjoyment of any specific 
 property ;(m) or a person may make a gift to the wife during the cover- 
 ture, and shut out the husband's interference by clearly expressing such 
 an intention. Where the separate estate is the result of a special agree- 
 ment between the parties, the policy of the law can scarcely be said to 
 be transgressed, for the old rule was established for the benefit and pro- 
 tection of the husband, and quisque remmtiare potest juri pro se instituto ; 
 but that equity should have allowed a stranger to vest property in the 
 wife independently of the husband during the coverture, appears a more 
 questionable doctrine ; though it may be said, that even in this case, 
 there is no violation of the marital rights, for the property never vested 
 in the feme herself, and the donor may limit any estate which the law 
 does not refuse to recognize. The court has also permitted the further 
 anomaly of a restriction upon the feme's anticipation (where such an 
 intention has been expressed) of the growing proceeds of the separate 
 estate; but this indulgence appears not a distinct inroad upon the com- 
 mon law incidents of property, but rather an *appendage to the pi-^^-j 
 separate use for the purpose of more effectually excluding the L "J 
 influence of the husband. If the wife were not debarred from anticipat- 
 ing the proceeds, she might, where the husband was not actuated by 
 proper motives, be induced to divest herself of the property, and place 
 it at the husband's disposal. Where the clause against anticipation has 
 once attached, even a court of equity cannot discharge it, though it were 
 for the /erne's own advantage. («) 
 
 At the first introduction of the settlement to the separate use it was 
 doubted, whether, to accomplish the object, the interposition of an express 
 trustee was not necessary ;(o) but it has since been determined that this 
 precaution may be dispensed with, for, rather than the intention shall be 
 disappointed, the husband himself shall be construed a trustee for the 
 wife.(p) But, whether a trustee be expressly appointed or not, the inten- 
 tion of excluding the husband must not be left to inference, but must be 
 clearly and unequivocally declared ; for, as the husband is bound to main- 
 tain the wife, and bears the burden of her incumbrances, he has j^rim a 
 facie a right to her property ;((^) but, provided the meaning be certain, 
 
 (m) See Parkes v. White, 11 Ves. 228. 
 
 (n) Robinson v. Wheelwright, 21 Beav. 214. 
 
 (o) Harvey v. Harvey, 1 P. W. 125 ; Burton v. Pierpoint, 2 P. W. 78. 
 
 (p) Bennet v. Davis, 2 P. W. 316; Parker v. Brooke, 9 Ves. 583 ; Rollfe v. 
 Budder, Biinb. 187 ; Prichard v. Ames, 1 Turn. & Russ. 222 ; Newlands v. Paynter, 
 10 Sim. 377 ; 4 M. & Or. 408 ; Turnley v. Kelly, Wallis's Rep. by Lyne, 311 : 
 Archer v. Rooke, 7 Ir. Eq. Rep. 478. 
 
 (q) Ex parte Ray, 1 Mad. 207, per Sir T. Plumer ; Wills v. Sayers, 4 Mad. 409, 
 per eundem; Massey v. Parker, 2 M. & K. 181, per Sir C. Pepys ; Kensington v. 
 Dollond, 2 M. & K. 188, per Sir J. Leach.
 
 IQ2 LEWIN OX THE LAW OF TRUSTS, ETC. 
 
 the court will execute the intention, though the settlor may not have 
 expressed himself in technical language, (r) 
 
 The marital claims will be defeated if the gift be to the wife for her 
 " sole and separate use/'(s) or " her sole use/'(^) (which *is con- 
 L^-""} strued as separate use,) or " solely for her own use," (u) or for 
 "her livehhood,"(i;) or " that she may receive and enjoy the profits," (?() 
 or " to be at her disposal," (a:) or " to be by her laid out in what she shall 
 think fit,"M or " for her own use, independent of her husband,"(^) or 
 " not subject to his control,"(a) or "for her own use and benefit, inde- 
 pendent of any other person ;"(b) for such 'expressions as these are clearly 
 inconsistent with the notion of any interference on the part of the hus- 
 band. So, if the gift be accompanied with such expressions as " her 
 receipt to be a sufficient discharge," (c) or " to be delivered to her on 
 demand ;"(d) for in these cases the check put upon the husband's legal 
 right to receive could only have been with the intention of giving the 
 wife a particular benefit. 
 
 But if the trust be merely " to pay to her," or " to her and her 
 assigns,"(e) or the gift be << to her use," (/) or " her own use," (g-) or 
 " her^ own absolute use,"(/t) or " to pay into her own proper hands for 
 her own use,"(i) or "to pay to her to be applied for the maintenance of 
 r*1 9m lierself and such child or *children as the testator might happen 
 L "" J to leave at his death," (7i-) there is no such unequivocal evidence 
 of an intention to exclude the husband. 
 
 Where property was vested in the husband jointly with another, as 
 
 (r) Darley v. Darley. 3 Atk. 399, per Lord Hardwicke ; Stanton v. Hall, 2 R. & 
 M. 180, per Lord Brougham. 
 
 (s) Parker v. Brooke, 9 Ves. 583 ; Archer v. Rooke, 7 Ir. Eq. Rep. 4'78. 
 
 {t) Adamson v. Armitage, 19 Ves. 416; S. C. Coop. 283 ; Ex parte Ray, 1 Mad. 
 199 ; Ex parte Killick, 3 Mont. D. & D. 480 ; Davis v. Proud, 7 Bear. 288 ; Arthur 
 V. Arthur, 11 Ir. Eq. Rep. 511 ; Lindsell v. Thacker, 12 Sim. 178, (the marginal 
 note in the last case is altogether erroneous) ; and see Massey v. Parker, 2 M. & 
 K. 181 ; V. Lyne, Younge, 562 ; but the latter seems not to have been cor- 
 rectly reported. The facts are stated from the registrar's book in Tullett v. Arm- 
 strong, 4 M. & Cr. 403. 
 
 (m) Inglefield v. Coghlan, 2 Coll. 247. 
 
 {v) Darley v. Darley, 3 Atk. 399 ; and see Cape v. Cape, 2 Y. & C. 543 ; Ex 
 parte Ray, 1 Mad. 208 ; but see Lee v. Prieaux, 3 B. C. C. 383 : Wardle t. Clax- 
 ton, 9 Sim. 524. 
 
 (ic) Tyrrell v. Hope, 2 Atk. 558. 
 
 (x) Prichard v. Ames, 1 Turn. & Russ. 222 ; Kirk v. Paulin, 7 Yin. 96. 
 
 (y) Atcherley v. Yernon, 10 Mod. 531. (2) Wagstaff v. Smith, 9 Ves. 520. 
 
 (a) Bain v. Lescher, 11 Sim. 397. (6) Margetts v. Barringer, 7 Sim. 482. 
 
 (c) Lee v. Prieaux, 3 B. C. C. 381 ; "Woodman v. Horslev, cited lb. 383 ; and 
 see Stanton v. Hall, 2 R. & M. 180. 
 
 {d) Dixon v. Olmius, 2 Cox, 414. 
 
 (e) Dakins v. Berisford, 1 Ch. Ca. 194; Lumb v. Milnes, 5 Ves. 517. 
 
 (/) Jacobs V. Amyatt, 1 Mad. 376, n ; Wills v. Sayers, 4 Mad. 411, per Sir T. 
 Plumer; Anon, case, cited 7 Yin. 96. 
 
 {9) Johnes v. Lockhart, in note to Lee v. Prieaux; 3 B. C. C. 383, ed. by Belt, 
 (this case is erroneously cited as an authority to the contrary in Lumb v. Milnes, 
 a V es. 520, and Ex parte Ray, 1 Mad. 207) ; Wills v. Sayers, 4 Mad. 409 ; Roberts 
 V. bpicer, 5 Mad. 491 ; Beales v. Spencer, 2 Y. & C. Ch. Ca 651 
 
 (h) Rycroft v. Christy, 3 Beav. 238. 
 1^1'^ '^f^^ ^' ^^^^' ^ ^- ^ *^- ^^^i Kensington v. Dollond, 2 M. & K. 184 ; Black- 
 
 Ti.T'4''^',' ^ "^'''' '^^ ; ^'^t S^^tley V. Hurle, 5 Yes. 545. contra. 
 
 {*) Wardle v. Claxton, 9 Sim. 524.
 
 OF THE OBJECT PROPOSED BY THE TRUST. 163 
 
 general trustees of the will, upon trust (inter alia,) for the wife, it was 
 held not to be a gift to her separate use.(?) Had the husband alone been 
 appointed a trustee for the wife, the decision might have been different.(/n) 
 The clause against the /erne's anticipation is of comparatively modern 
 growth. In Hulme v. Tenant(w) it was held that a limitation to the 
 separate use simply did not prevent the feme from aliening. In Pybus 
 V. Smith(o) great pains had been taken in framing the separate use, and 
 the income was made payable as the feme should by writing under her 
 proper hand from time to time appoint, but it was again decided that 
 the feme could even then dispose of her interest. After this. Lord Thur- 
 low happened to be nominated a trustee of Miss Watson's settlement, and 
 he directed the insertion of the words " and not hy anticipation " [p) 
 from which time this has been the usual formulary, and the eifect of it 
 for the purpose of excluding the power of disposition has never been 
 questioned. 
 
 But although these words are now almost universally employed they 
 are not absolutely indispensable, for if the intention to restrain anticipa- 
 tion can be clearly collected from the whole instrument it is sufficient,(5) 
 as if there be a direction to pay the income to such persons as the feme 
 shall after it is become due app)oint,{r) but, as we have seen, if the limi- 
 tation be merely to the sole and separate use, or to pay from to time 
 upon her receipt under her own proper hand,(s] or if the trust be to pay 
 to her upon her personal *appearance,(«) the feme is left at liberty r*-| 9^ -i 
 to part with her interest, for such expressions are, as Lord Eldon L " 1 
 observed, " only an unfolding of all that is implied in a gift to the sepa- 
 rate use."(M) 
 
 Of late years the doctrine of the separate use has given rise to the fol- 
 lowing questions : — first. Whether a fund given in trust for the separate 
 use of a /erne sole without power of anticipation may be disposed of by 
 her at any time previously to marriage ? secondly. Whether a fund given 
 merely for her separate use, without words in restraint of anticipation, 
 will, in default of any previous disposition by her, vest by the marriage 
 in the husband, or the trust for the separate use of the wife will be sup- 
 ported against his legal rights ? and, thirdly, Where words in restraint 
 of anticipation are added, whether, supposing the separate use to be 
 good in the event of marriage, the clause against anticipation will also 
 operate ? 
 
 1. With reference to the first of these questions, it is now clearly esta- 
 blished, that a /erne sole may, before marriage, dispose absolutely of a gift 
 
 {I) Ex parte Beilby, 1 Glyn & J. 16T ; and see Kensington v. DoUond, 2 M. & 
 K. 184. 
 
 (m) Ex parte Beilby, ubi supra ; and see Darley v. Darley, 3 Atk. 399. 
 
 (n) 1 B. C. 0. 16. (0) 3 B. C. 0. 340. 
 
 \p) See Jackson v. Hobhouse, 2 Mer. 487 ; Parkes v. White, 11 Ves. 221. 
 
 \q) See Re Ross's Trust, 1 Sim. N.S. per V. C. Kindersley, p. 199. 
 
 (r) Field v. Evans, 15 Sim. 3'75 ; Baker v. Bradley, 2 Jur. N.S. 98. 
 
 (s) Ellis V. Atkinson, 3 B. 0. C. 565 ; Clarke v. Pistor, cited lb. 568 ; Brown v. 
 Like, 14 Ves. 302 ; Acton v. White, 1 S. & S. 429; Witts v. Dawkins, 12 Ves. 501 ; 
 Wagstaff V. Smith, 9 Ves. 520; Sturgis v. Corp, 13 Ves. 190; and see Scott v. 
 Davis. 4 M. & Cr. 87, Quaere ; Hovey v. Blakeman, cited 9 Ves. 524. 
 
 {t) Re Ross's Trust, 1 Sim. N. S. 19G. {u) Parkes v. White, 11 Ves. 222.
 
 104 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 to her separate use, though coupled with words restrictive of anticipa- 
 tion ;(v) and the principle is briefly this— that loherever a person possess- 
 ing an interest, however remote apossihility, is sui juris, that person can- 
 not he prevented hy any intention of the donor from exercising the ordi- 
 nary rights of proprietorship. The fund may be limited " in trust for 
 the separate use of the /erne/' or "in trust for her, and, in the event of 
 her marriage to her separate use," or " in trust for her separate use in the 
 event of her marriage," without the gift of any estate independently of 
 that contingency ; but in all these cases the interest, whether vested or 
 contingent, is in favour of one who is now sid juris, and who therefore 
 cannot be restrained from disposing of property to which she either now 
 is, or may eventually become, entitled. 
 
 2. Upon the subject of the second question, there are *difficulties 
 t J upon principle in the way of holding the trust for the separate 
 use to arise upon the marriage. Thus, it cannot be said there is any 
 necessity for such a doctrine with the view of protecting the feme in the 
 due enjoyment of her property; for, having an absolute power of dispo- 
 sition over the interest before her marriage, she may settle it in whatever 
 manner she pleases by express contract ; and, if she marry without such 
 special agreement, the legal presumption ought to be, that she intended 
 the marriage itself to operate as a gift of it to the husband. It may be 
 thought hard perhaps that a father should not be allowed to tie up the 
 property of his daughter against the effects of a future coverture ■,{iv) but 
 is it not eciually hard that he should not be allowed to fetter the owner- 
 ship of a weak and extravagant son ? In fact, the law must proceed 
 upon general principles ; and the rule is, that every person, whether male 
 or female, who is sui juris, has a legal capacity, and therefore cannot be 
 restrained in the exercise of the rights of property, even at the will of a 
 parent. Besides, if the father were allowed to tie up the property of his 
 daughter, his will should be imperative ; whereas it is now on all hands 
 agreed, that the feme, while sole, may dispose of the property at plea- 
 sure by an express assignment, whether in favour of her intended hus- 
 band or any other person. But the principal objection is, that the exclu- 
 sion of the marital rights would be a repugnancy to the estate itself; for 
 when ih.e feme is so absolutely the owner of the fund that it maybe paid 
 into her own hands by the trustees, or may be assigned by her to a mere 
 volunteer, or may become vested by bankruptcy or insolvency in her 
 assignees, it is surely inconsistent to say that the marriage shall not be a 
 transfer of it to the husband, a purchaser for valuable consideration. 
 P^,£^^-, However, Lord Cottenham, in the cases of TuUett v. Arm- 
 L "^ -1 strong, and Scarborough v. Borman,(a;) anxious to prevent *the 
 
 (v) Jones V. Salter, 2 R. & M. 208 ; Woodmeston v. Walker, 2 R. & M. 197 ; 
 Brown v. Pocock, lb. 210 ; S. C. 2 M. & K. 189 : and see Massey v. Parker, 2 M. 
 & K. \U. 
 
 (w) See Benson v. Benson, 6 Sim. 130. 
 
 (z) 4 M. & C. 377 ; and see Newlands v. Paynter, lb. 408 ; Russell v. Dickson, 
 2 Drur. & War. 138 ; Archer v. Rooke, 7 Ir."Eq. Rep. 478, where a bequest of 
 chattels real was to the testator's daughter, who was then sole and without the 
 intervention of any trustee, and on her marriage the husband was deemed a 
 trustee for her.
 
 OF THE OBJECT PROPOSED BY THE TRUST. 105 
 
 consequences that would have flowed from a diff"erent decision, and not 
 finding any other safe ground upon which to base his judgment, asserted 
 an inherent power in the court of chancery to modify estates of its own 
 creation, and in virtue of that jurisdiction established the validity of the 
 separate use to its fullest extent. " It is said," he observed, « to have 
 been very generally understood in the profession, that the separate estate 
 would continue to operate during a subsequent coverture, and that con- 
 veyancers have acted so extensively upon that supposition, that very many 
 families are interested in the decision of this question. That circum- 
 stance ought to have great attention paid to it. For the future it would 
 not probably be found difficult to obtain the desired security for the future 
 wife by other means consistent with the well-established rules of property, 
 but the existing arrangements must depend upon the decision of this 
 case. I have over and over again considered this subject with a great 
 anxiety to find some principle of property consistent with the existing 
 decisions upon which the preservation of the separate estate during a 
 subsequent coverture could be supported. I have been anxious to find 
 means of preserving it, not only to maintain those existing arrangements 
 which have proceeded on the ground of its validity, but because I think 
 it desirable that the rule should, if possible^ be established for the future, 
 believing, as I do, that when a marriage takes place, the wife having 
 property settled to her separate use, all the parties in general suppose 
 that it will so continue during the coverture. To permit the husband 
 therefore to break through such a settlement, and himself to receive the 
 fund, would, in general, be contrary to the intention of the parties, and 
 unjust towards the wife. This view of the case has led to a suggestion 
 which has often been made in argument, by which the object might be 
 attained without violating any rule of property, viz. by supposing the 
 husband marrying a woman with a property so settled, tacitly to assent 
 to such settlement, or, at least, to be bound by an equity not to dispute 
 it. I was for some time much disposed to adopt this view of the subject, 
 and in all cases in which the husband was cognizant of the fact, there 
 would be much of equitable principle to support the gift or *set- r*]^271 
 tlement against him ; but putting the title of the wife upon such L "^ -I 
 assent of the husband, assumes that but for such assent it would not 
 exist. It abandons the idea of the old separate estate continuing through 
 the subsequent coverture, and supposes a new separate estate to arise 
 from the act of the husband. If the title of the wife were to rest upon 
 that supposition, I fear that the remedy would be very inadequate, and that 
 questions would constantly arise as to how far the circumstances of each 
 case would afi"ord evidence of assent, or raise this equity against the 
 husband. After the most anxious consideration, I have come to the 
 conclusion that the jurisdiction which this court has assumed in similar cases 
 justifies it in extending it to the protection of the separate estate, with 
 its qualification and restrictions attached to it, throughout a subsequent 
 coverture, and that resting it upon such jurisdiction is the broadest foun- 
 dation, and that the interests of society require that this should be done.(l) 
 
 (1) Yet the lord chancellor, in a subsequent case, is made to saj, <• The prin- 
 ciple of my decision was, that a person marrying a woman with property so cir-
 
 1(56 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 When this court first establislied the separate estate, it violated the laws 
 of property as between husband and wife, but it was thought beneficial, 
 and it prevailed. It being once settled that a wife might enjoy separate 
 estate as a feme sole, the laws of property attached to this new estate, 
 and it was found as part of such law, that the power of alienation belonged 
 to the wife, and was destructive of the security intended for it. Equity 
 aeain interfered, and by another violation of the laws of property, sup- 
 ported the validity of the prohibition against alienation. In the case now 
 under consideration, if the after-taken husband be permitted to interfere 
 with the property given or settled before the marriage to the separate 
 use of the wife, much of the benefit and security of the rules which have 
 been *so established will be lost. Why then should not equity 
 L "^ -I in this case also interfere, and if it cannot protect the wife con- 
 sistently with the ordinary rules of property, extend its own rules with 
 respect to the separate estate, so as to secure to her the enjoyment of that 
 estate which has been so invented for her benefit ? It is, no doubt, 
 doing violence to the rules of property to say, that property, which being 
 given with qualifications and restrictions which are held to he void, be- 
 longed absolutely to the woman up to the moment of her marriage, shall 
 not be subject to the ordinary rules of law as to the interest which the 
 husband is to take in it ; but it is not a stronger act to prevent the hus- 
 band from interfering with such property, than it was originally to esta- 
 blish the separate estate, or to maintain the prohibition against aliena- 
 tion." 
 
 8. With reference to the third question, viz., whether not only the 
 separate use, but also the clause against anticipation, shall operate upon 
 the marriage, it was formerly held by Sir L. Shadwell, V. C. E., that 
 while the sej^arate use was good,(?/) the clause against anticipation was 
 nugatory. (;3) Lord Langdale, M. R., with more consistency, supported 
 both the separate use and also the clause against anticipation.{ci) The 
 case of Tullett v. Armstrong(6) has now decided the validity of the 
 clause against anticipation as well as of the separate use. "If," said the 
 court, " the case be of a separate estate, without power of anticipation, it 
 must exist with that qualification or fetter, if it exist at all, and there is 
 no principle upon which it can be held that the separate estate operates 
 during a coverture subsequent to the gift, but that the provisions against 
 anticipation with which the gift was qualified does not. It is obvious 
 that such a rule would in practice defeat the intention of the donor, and, 
 in many cases, render the provision which he had made for the protec- 
 tion of the object of his bounty the means and instrument of depriving 
 
 {y) Davis v. Thornycroft, 6 Sim. 420. 
 
 (2) Brown v. Pocock, 5 Sim. 663 ; Johnson v. Freeth, 6 Sim. 423. 
 
 (a) Tullett V. Armstrong, 1 Beav. 1. (Jj 4 M. & C. 390. 
 
 cumstanced is considered as adopting the property in the state in which he finds 
 It, and bound by equity not to disturb it. That is the only principle which I could 
 mm upon which to support limitations to the separate use under such circum- 
 stances. Newlands t. Paynter, 4 M. & Cr. 417. There appears evidently to have 
 Deen a struggle m the mind of the court, between the wish to support the sepa- 
 rate use (trom a fear of the consequences in a different decision), and the diffi- 
 culty ot findmg a principle upon which to maintain it.
 
 OF THE OBJECT PROPOSED BY THE TRUST. 167 
 
 her of it. When once it was established that the separate estate of a 
 married woman was to be so far enjoyed by her as a /erne sole, as to bring 
 with it all *the incidents of property, and that she might there- r*-^29"] 
 fore dispose of it as a feme sole might do, it was found that to L "' J 
 secure to her the desired protection against the marital rights, it was 
 necessary to qualify and fetter the gift of the separate estate by prohi- 
 biting anticipation. The power to do this was established by authority 
 not BOW to be questioned, but which could only have been founded upon 
 the power of this court to model and qualify an interest in property, 
 which it had itself created, without regard to those rules which the law 
 has established for regulating the enjoyment of property in other cases. 
 If any rule, therefore, were now to be adopted by which the separate 
 estate should, in any case, be divested of the protection of the clause 
 against anticipation, it would in such cases, defeat the object of the power 
 so assumed. A feme covert with separate estate not protected by a clause 
 against anticipation, is, in most cases, in a less secure situation than if 
 the property had been held for her simply upon trust. In the latter case 
 this court, with the assistance of her trustees, can eflfectually protect her ; 
 in the other, her sole dependence must be upon her husband not oxer- 
 cising that influence or control, which, if exercised, would, in all proba- 
 bility, procure the destruction of her separate estate. In the case of a 
 gift of separate estate, with a clause against anticipation, the author of 
 the gift supposes that he has efi'ectually protected the wife against such 
 influence or control. Upon what principle can it be that this court 
 should subject her to it, and by so doing defeat his purpose, and com- 
 pletely alter the character and security of his gift ? The separate estate, 
 and the prohibition of anticipation, are equally creatures of equity, and 
 equally inconsistent with the ordinary rules of property. The one is 
 only a restriction and qualification of the other. The two must stand 
 or fall together." 
 
 It was held in a case(c) before the late vice-chancellor of England, 
 that if a fund be vested in trustees upon trust to pay the proceeds to 
 such persons and for such purposes as a feme covert shall, when and 
 as they become due, appoint, but so as not to charge or anticipate the same, 
 and in default of *appointment to pay the same into the hands of r^j^gQ-i 
 the feme for her separate use (without the addition of any words L -■ 
 to restrain \iQr power of anticipation,) if i\\Q feme covert assign the life 
 estate limited to her in default of appointment, it destroys the power, 
 and the restriction upon the anticipation annexed to it is nugatory. 
 Such a doctrine would have led to great inconvenience, as the precedents 
 of the most approved conveyancers were known to have been frequently 
 expressed in that form, and the decision after failing to secure the assent 
 of other judges(fZ) was ultimately reversed on appeal. (e) The substan- 
 tial intention was taken to be, that ih.e, payment into her hands, as well 
 as the poicer to appoint, was not to operate until the annual proceeds 
 had become actually due. 
 
 (c) Brown v. Bamford, 11 Sim. 127. 
 
 [d) Moore v. Moore, 1 Collyer, 54 ; Harrop v. Howard, 3 Hare, 624 ; Harnett v. 
 Macdougall, 8 Beav. 187. (e) 1 Pbill. G20.
 
 168 LEWIN OX THE LAW OF TRUSTS, ETC. 
 
 In another case the trust was to pay to such person or persons as the 
 feme should appoint, and in default into her own proper hands, the 
 receipts of the /erne or her appointee to be sufficient discharges, and 
 that the trustees should be at liberty to require from the feme a separate 
 receipt for each quarterly payment, " it being the testator's intention 
 that the annual interest and proceeds should not be sold, charged, or 
 otherwise disposed of;" and the vice-chancellor of England held that 
 the testator having previously given a general power of disposition, the 
 concluding words were inconsistent with such a gift, and therefore nuga- 
 tory. (/) This, however, was before his honor's decision in Brown v. 
 Bamford had been overruled by the lord chancellor, and the decision it 
 is conceived could not be supported. 
 
 If a fund be settled to the separate use of a feme, which is meant to 
 be confined to that particular marriage, and the husband afterwards 
 die, and the widow marry again, the second husband shall not be 
 excluded from his ordinary marital rights. (^) The question simply is. 
 What was the intention of the settlement ? for Tullett v. Armstrong has 
 now decided, that if the exclusion of any future husband was also in 
 r*mn contemplation, *it shall be carried into eflFect,(/i) and if the sepa- 
 L J rate use extend to any marriage, present or future, even the 
 arrears due to the feme at the time of the subsequent marriage are pro- 
 tected from the after-taken husband. (t) 
 
 SECTION II. 
 
 OF UNLAWFUL TRUSTS. 
 
 The court will not permit the system of trusts to be directed to any 
 object that contravenes \ks.Q policy of the law.(y ) Thus, if the trust of a 
 rJiattel be limited to A. and his heirs, it will nevertheless be personal 
 estate, and vest in the executors,(7i;) for to hold the contrary would shake 
 the first principles of law and confound the great landmarks of property. 
 So the trust of a chattel cannot be entailed, as if it be limited to A. and 
 the heirs of his body, with remainder to B., the absolute interest vests 
 in A., and the remainder to B. is a nullity.(A But trusts of terms 
 attendant upon the inheritance were always excepted from the rule; for 
 these, partly to protect the estate from secret incumbrances, and partly 
 to keep the property in the right channel,(?)i) were made to follow, as 
 shadows, the devolution of the freehold. («) 
 
 (/) Medley v. Horton, 14 Sim. 222. 
 
 {g) Barton v. Briscoe, Jac. 603 ; Benson v. Benson, 6 Sim. 126 ; Knight v. 
 Knight, lb. 121 ; Jones v. Salter, 2 R. & M. 208. 
 
 {h) Ashton v. M'Dougall, 5 Beav. 56; Re GafFee, 7 Hare, 101 ; 1 Mac. & Gord. 541. 
 
 (i) Ashton v. M'Dougall, 5 Beav. 56 ; and see Newlands v. Paynter, 4 M. & Cr. 
 418 ; England v. Downs, 6 Beav. 269. 
 
 {j) See Attorney-General v. Pearson, 3 Mer. 399 ; Hamilton v. Mainwaring, 2 
 Bligh, 209 ; Earl of Kingston v. Ladv Pierepoint, 1 Vern. 5. 
 
 {k) Duke of Norfolk's case, 3 Ch. Ca. 9, 11; S. C, 1 Vern. 164, per Lord Guild- 
 ford ; Hunt V. Baker, 2 Freem. 62 ; Attorney-General v. Sands, Nels. 133. 
 
 (0 Duke of Norfolk's case, 3 Ch. Ca. 9, 11 ; Hunt v. Baker, 2 Freem. 62. 
 
 (wi) See Willoughby v. Willoughby, 1 T. R. 765. 
 
 («) For the law upon this subject, see Vend. & Purch. Ch. 15.
 
 OF THE OBJECT PROPOSED BY THE TRUST. 1G9 
 
 Again, a person cannot settle property upon trust for illegitimate chil- 
 dren to he thereafter horn, but tlie declaration of trust is void, and the 
 beneficial interest results to the settlor. (o) 
 
 So a trust of real estate cannot be declared in favour of a corporation 
 without a license from the crown. (^:) ) 
 
 *And a trust of real estate declared in favour of an alien will r-^-. 09-1 
 vest in the crown without the form of a previous inquisition. (g') L ~'J 
 
 So, neither lands nor property savouring of the realty can be conveyed 
 upon trust for a charity, unless the requirements of the 9 Gr. 2, c. 36, 
 as respects execution and enrolm.ent,(f) and absence of any reservation 
 for the benefit of the grantor,(s) be complied with. And where lands 
 were conveyed to trustees for a charity by a deed duly enrolled, and 
 without any reservation upon the face of it to the grantor, but upon a 
 secret trust that the deed should not operate until after the settlor's 
 death, the deed was, upon bill filed, declared void, and decreed to be set 
 aside. (?) 
 
 A perpetuity will no more be tolerated when it is covered with a trust, 
 than when it displays itself undisguised in a settlement of the legal 
 estate.(«) " A perpetuity," said Lord Guildford, " is a thing odious in 
 law, and destructive to the commonwealth. It would put a stop to com- 
 merce, and prevent the circulation of the riches of the kingdom, and 
 therefore is not to be countenanced in equity. If in equity you could come 
 nearer to a perpetuity, than the rules of common law would admit, all men, 
 being desirous to continue their estates in their families, would settle 
 their estates by way of trust, which might indeed make well for the 
 jurisdiction of the court, but would be destructive to the common- 
 wealth."(v) 
 
 So trusts cannot be created with a proviso, that the interest of the 
 cestui que trust shall not be aliened,(i«) or shall not be made subject to 
 the claims of creditors. (a;) If it can only be ascertained that the cestui 
 que trust was intended to take a vestest interest, the mode in which, or 
 the time when, the cestxd que trust was to reap the benefit, is perfectly 
 immaterial — the *entire interest may either be disposed of by rxs-ioo-i 
 the act of the cestui que trtcsf, or may become vested in his assig- L -' 
 nees by operation of law on his bankruptcy or insolvency. Thus, if 
 the trust be to pay the interest of a fund to a person for life " at such 
 times and in such manner as the trustees shall think proper,"(y) or 
 
 (0) Wilkinson v. Wilkinson, 1 Y. & C. Ch. Ca. 657 ; Pratt v. Mathew, 22 Beav. 
 339. 
 
 (p) See Sheph. Touch. 509 ; Sand, on Uses, 339, note E. 15 Ric. 2, c. 5. 
 
 (q) See Dummoncel v. Dumoncel, 13 Ir. Eq. Rep. 92 ; Yin. Ab. Alien, A, 8 ; 
 Godfrey V. Dixon, Godb. 275; Br. Feff. al. Uses, 389; King v. Holland, Al. 16, 
 Styl. 21; Barney v. Macdonald, 15 Sim. 6. 
 
 (r) Doe V. Hawthorn, 2 B. & Aid. 96 ; Doe v. Munro, 12 M. & W. 845, 
 
 (s) Limbrey v. Gurr, 6 Mad.; Attorney-General v. Munby, 1 Mer. 327. 
 
 (i) Way T. East, 2 Drewry, 44. 
 
 (2<) See Duke of Norfolk's case, 3 Ch. Ca. 20, 28, 35, 48. 
 
 (I'j S. C. 1 Vern. 164. 
 
 (w) Snowdon v. Dales, 6 Sim. 524 ; Green v. Spicer, 1 R. & M. 395 ; Graves v. 
 Dolphin, 1 Sim. 66; Brandon v. Robinson, 18 Yes. 429. 
 
 (x) Graves v. Dolphin, Snowdon v. Dales, Brandon v. Robinson, ubi supra ; Bird 
 V. Johnson, 18 Jur. 976. (?/) Green v. Spicer, ubi supra.
 
 170 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 from time to time as and when it shall become due and payable," (2) or 
 « in such smaller or larger portions, at such times immediate or remote, 
 and in such way and manner as the trustees shall think best,"(a) the 
 discretion of the trustees is determined by the bankruptcy or insolvency 
 of the cestui que trust, and the entirety of the life estate becomes vested 
 in the assignees. Even where the trustees were directed to pay the 
 interest of a sum " to A. for life or during such part thereof as the trus- 
 tees should think proper, and at their will and pleasure, but not otherwise, 
 and so that A. should not have any right, title, claim, or demand other 
 than the trustees should think proper ;" and after A.'s decease, to pay 
 the interest to his widow for her life, and after her decease to assign the 
 principal and " all savings or accumulations of interest, if any," to the 
 children, the court thought, that, taking the whole instrument together, 
 the trustees, had no power to withhold and accumulate any portion of 
 the interest during the life of A., and therefore, on his bankruptcy, the 
 assignees became absolutely entitled. (i) 
 
 However, where a fund was given to trustees ilpon trust to apply the 
 whole or sucli part of the interest as they should think fit during the 
 life of A., for his support and maintenance, and for no other purpose, 
 it was held by the vice-chancellor of England that nothing passed to 
 the assignees. (c) And where a residuary estate was given to the testa- 
 tor's son for life, but if he did any act whereby the interest vested in 
 him would become forfeited to others, the trustees were to apply the 
 annual produce " for the maintenance and support of the son, any wife 
 and child or children he might have, as the trustees should in their 
 discretion think fit," and the son became bankrupt, having a wife and 
 r*imn children, *the vice-chancellor of England said, "It did not fol- 
 L J low from the gift that anything was of necessity to be jj«<V7, but 
 the property was to be applied ; and there might be a maintenance of 
 the son, and of the wife and children, without their receiving any money 
 at all. For instance, the trustees might take a house for their lodging, and 
 they might give directions to tradesmen to supply the son and the wife and 
 children with all that was necessary for maintenance, and if so the as- 
 signees were not entitled to anything."(fA But where property was vested 
 in trustees upon trust for A . for life, until his bankruptcy, &c., and on his 
 bankruptcy, &c., upon trust to apply the proceeds '< in such manner and to 
 such persons for the hoard, lodging, and subsistence of himself and his 
 family as the trustees should think proper," and A. became bankrupt, 
 having lost his wife, and having f/tree children, it was held by the master 
 of the rolls that the assignees were entitled to one-fourth part for the life of 
 A.(e) And in another case, where real and personal estate was vested by a 
 marriage-settlement in trustees upon trust to apply the annual produce 
 thereof «' for the maintenance and support of A. B., his icifeand chil- 
 
 (2) Graves v. Dolphin, 1 Sim. 66. (a) Piercy v. Roberts, 1 M. & K. 4. 
 
 (6) Snowdon v. Dales, 6 Sim. 524. (c) Twopeny v. Peyton, 10 Sim. 487. 
 
 {d) Godden v. Crowhurst, 10 Sim. 642. If this case can be supported at all, it 
 must be on the ground that the trustees were not obliged to apply more than an 
 illusory part for the benefit of the husband. Compare Younghusband v. Gis- 
 borne, 1 Collyer, 400. 
 
 (e) Rippon v. Norton, 2 Beav. 63.
 
 OF THE OBJECT PROPOSED BY THE TRUST. I7I 
 
 dren, if any, or otherwise, if they thought proper, to permit the same to 
 be received by A. B., for his life," and A. B. became bankrupt, leaving 
 a wife but no children, the master of the rolls said, " There could be 
 no doubt of the intention of the settlement, that the wife should be 
 supported out of the property, and he was of opinion that so long as the 
 wife and children were maintained by A. B., the trustees had a discre- 
 tion to give him the whole income, but that it was their duty to see 
 that the wife and children were maintained ; that the assignees took 
 everything, subject to what was proper to be allowed for the maintenance 
 of the wife and children, and that it must be referred to the master to 
 settle a proper allowance. "(/) In a subsequent case, freehold and 
 leasehold property was vested in trustees upon trust for A. B. for life, 
 but if *he became bankrupt or insolvent, the trustees were, during ^^^ 0^-1 
 his life, to apply the annual produce <' in and towards the main- L J 
 tenance, clothing, lodging, and support of A. B. and his then present 
 or any future wife and his children, or any 0/ them as the trustees 
 should in their discretion think proper." A. B. became insolvent, 
 having a wife and children, and it was argued that the power in the 
 trustees was destroyed by the insolvency, and that the life estate vested 
 in the assignee ; but Vice-Chancellor Knight Bruce held that the trustees 
 had a right under the power to appoint in favour of the insolvent, his 
 wife and children, or any of them in exclusion of any other of them, 
 but that any benefit which the insolvent might take would belong to the 
 assignee. (^) And the same doctrine has been held in the more recent 
 case of Kearsley v. Woodcock. (/i) The question to be asked in these 
 cases is, on the decease of the cestui qtie trust would his executor have a 
 right to call upon the trutsees retrospectively to account for the arrears ? 
 If he would, then the assignees are prospectively entitled to the pay- 
 ments in future. 
 
 But though a person cannot put a restraint upon alienation, or exclude 
 the rights of creditors, he may settle property upon A. until alienation, 
 bankruptcy, or insolvency, with a limitation over to B. on the happen- 
 ing of either of those events ; or he may give the fund to A. for life, or 
 absolutely in the first instance, with a proviso that on alienation, bank- 
 ruptcy, or insolvency, the estate shall shift over to be B.(t) But a 
 clause divesting the property on '' alienation" will extend only to a 
 disposition by the act of the party, and not to a transfer by ope- p^, ^n-, 
 ration of law, as hankruptci/,(^k^ unless it can be collected *from L -I 
 
 (/) Page V. Way, 3 Beav. 20. 
 
 Iff) Lord V. Bunn, 2 Y. & C. Ch. Ca. 98 ; Holmes v. Penney, 3 K. & J. 90, 
 
 (h) 3 Hare, 185. 
 
 (t) Shee v.' Hale, 13 Ves. 404 ; Cooper v. Wyatt, 5 Mad. 482 ; Yarnold v. Moor- 
 house, 1 R. & M. 364 ; Lockyer v. Savage, 2 Stra. 947 ; Stephens v. James, 4 Sim. 
 499 ; Ex parte Hinton, 14 Ves. 598 ; Lewes v. Lewes, 6 Sim, 304 ; Ex parte Oxley, 
 1 B. & B. 257 ; Stanton v. Hall, 2 R. & M. 175 ; and see Rochford v. Hackman, 9 
 Hare, 475 ; Sharp v. Cossent, 20 Beav. 470. 
 
 {k) Lear v. Legget, 2 Sim. 479 ; S. C. 1 R. & M. 690 ; Whitfield v. Prickett, 2 
 Keen, 608 ; Wilkinson v. Wilkinson, Sir Geo. Coop. R. 259 ; and see S. C. 3 Sw. 
 528. Where the clause was against " anticipating or otherwise assigning or in- 
 cumberiag" the annual proceeds, and the cestui que trust assigned, so far as he 
 lawfully could without a forfeiture, the arrears already accrued, but not the future
 
 172 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 the context that the term was intended by the settlor to have so wide 
 a signification. (^) Insolvency is not a process in mvitum, but the act of 
 the Insolvent himself (except it be on the petition of a creditor under 
 the late statute,)(«i) and therefore comes within the meaning of a res- 
 traint against '' alienation."(?i) However, a person cannot settle his 
 oivn property on himself, with a limitation over in the event of his own 
 alienation,(c») or on his own bankruptcy or insolvency. (?>) But if on 
 his marriage he receive a portion with his wife, he may settle a fund of 
 his own to the extent of the wife's fortune, for, though apparently a 
 settlement by the husband, it is in fact a settlement of the money advan- 
 ced by the wife.(5') 
 
 It is not unusual to find a clause in a will directory to trustees to 
 purchase a presentation in favour of some particular object; but, it seems, 
 if the purchase be made with the intention of presenting the cestui que 
 trust, though the patron himself was ignorant of the purpose in view,(r) 
 it falls within the statutes enacted for the prevention of simony, (s) A 
 patron is forbidden to present for money, either directly or indirectly ; 
 and, the object being determined upon at the time of the purchase, the 
 construction put upon the transaction by the court is, that the patron 
 presents indirectly by selling to a person who purchases with the sole 
 intention of presenting. 
 
 r*iq7T It has been ruled that the statute relating to insurances on 
 L J *lives does not prohibit an insurance on the life of A. in the name 
 of B., ^ipon trtistfor A., when both names appear upon the policy. (<) 
 
 Fictitious, fraudulent, or collusive conveyances, for the purpose of 
 splitting votes for members of parliament, as when the conveyances are 
 in form only, and there is a private arrangement between the parties that 
 no interest shall pass, are null and void; but if A. 6o?m^fZe and without 
 any secret understanding in derogation of the deed, though for the pur- 
 pose of multiplying votes, convey to B. in trust for a number of persons 
 as tenants in common, that they may thereby acquire a qualification, the 
 deed is unimpeachable. (?A 
 
 income, it was held the assignment being confined to the arrears was valid ; Re 
 Stulz's Trusts, 4 De Gex, Mac. & Gord. 404. 
 
 (/) Dommett v. Bedford, 6 T. R. 684 ; Cooper v. Wyatt, 5 Mad. 482. 
 
 (m) 1 & 2 Vict. c. 110, s. 36 ; see Pjm v. Lockyer, 12 Sim. 394. 
 
 (n) Shee v. Hale, 13 Ves. 404 ; Brandon v. Aston, 2 Y. & G. Ch. Ca. 24 ; Church- 
 ill V. Marks, 1 Colls. 441 ; Martin v. Margham, 14 Sim. 230. 
 
 (o) Phipps V. Lord Ennismore, 4 Russ. 131. 
 
 (p) Higginbotham v. Holme, 19 Ves. 88 ; Ex parte Hill, 1 Cooke's Bank. Law, 
 291 ; Ex parte Bennet, lb. 293 ; In re Murphv, 1 Sch. & Lef. 44 ; In re Meaghan, 
 lb. 179 ; Ex parte Hodgson, 19 Ves. 206 ; Re Casey's Trust, 3 Ir. Ch. Rep. 419 : 4 
 Ir. Ch. Rep. 247. 
 
 ^ (?) Ex parte Cooke, 8 Ves. 353 ; Higginson v. Kelly, 1 B. & B. 252 ; Ex parte 
 Verner, lb. 260 ; In re Meaghan, 1 Sch. & Lef. 179; Ex parte Hodgson, 19 Ves. 
 206 ; but see Ex parte Hill, 1 Cooke's Bank. Law, 291, and compare Ex parte 
 Hodgson, 19 Ves. 208. (^) King v. Trussel, 1 Sid. 329. 
 
 («) Kitchen v. Calvert, Lane, 102, per Baron Snig; Whinchcombe v. Pulleston, 
 ^oy, 25 per Lord Hobart; Godbolt, 390; and see Fearne's P. W. 404 ; but see 
 J^ox V. Bishop of Chester, 6 Bing. 1. 
 
 (i) CoUett V. Morrison, 9 Hare, 162. 
 
 B Re ^'io™^^'^ ^* ^'^^P^'''^'^' ^ ^°'"- ^- ^^P- ^^^ > Alexander v. Newman, 2 Com.
 
 OF THE OBJECT PROPOSED EY THE TRUST. 173 
 
 Where a trust is created for au unlawful aud fraudulent purpose the 
 court will neither enforce the trust in favour of the parties intended to 
 be benefited, nor will assist the settlor to recover the estate. 
 
 Thus in Cottington v. Fletcher,(i;) before Lord Hardwicke, a papist 
 had assigned an advowson to A. B. for a term of ninety-nine years, for 
 the purpose of evading the statutes which vested in the two universities 
 presentations of livings in the gift of papists. The grantor afterwards 
 conformed to the protestant religion, and filed a bill against A. B., pray- 
 ing a discovery of the secret trust. The defendant pleaded the Statute 
 of Frauds, by which all declarations of trust are required to be in writ- 
 ing, but admitted by his answer for what purposes the assignment had 
 been made. Lord Hardwicke held, that, if the plea had stood by 
 itself, it might have been good enough, but, coupled with the answer 
 which was a full admission of the facts, it ought to be overruled ; but 
 his lordship added, '<If the defendant had demurred to the bill, it mio-ht 
 have been of a difi"erent consideration ; for, as the assignment was done 
 in fraud of the law, he doubted at the hearing, whether the plaiutiflf 
 could be relieved, such fraudulent conveyances being made absolute 
 against the grantor." The opinions of Lord Eldon are expressed in 
 the following remarks upon this case: — *'<Lord Hardwicke," p>j;-,qQn 
 he observed, "is made to say, that, upon the admission of the L "^^J 
 trust by the defendant, he would act. I do not know whether he did 
 act upon it, but it is questionable whether he shoidd, for there is a great 
 difi"erence between the case of an heir coming to be relieved against the 
 act of his ancestor in fraud of the law, and of a man coming upon his 
 own act under such circumstances. It is said it might be difi"ereut, if 
 it had come on upon demurrer. Lord Hardwicke means to say, that, if 
 the defendant admits the trust, though against the policy of the law, he 
 would relieve; but if he does not admit the trust, then, the plaintiff 
 stating he had been guilty of a fraud upon the law to evade the pro- 
 vision of the legislature to which he was bound to submit, and coming 
 to equity to be relieved against his own act, and the defence also being 
 dishonest, the court, between the two species of dishonesty, would not 
 act, but would say, "let the estate lie where it falls. "(«•) 
 
 The distinction here taken by Lord Eldon between a bill filed by the 
 author of the fraud himself, and by a person taking through him but not a 
 party to the fraud, is supported by other authority,(a;j and may be illus- 
 trated by the two following cases, both arising out of the same transaction, 
 the one before Lord Redesdale, aud the other before Lord Mannei's : — 
 
 John Brown, a trader in partnership with his brothers William and 
 Thomas, resolved on commencing business as a banker; and, for the 
 purpose of avoiding the penalties of the statute against a banker's trading, 
 
 (v) 2 Atk. 155. 
 
 (tv) Muckleston v. Brown, 6 Ves. 68 ; and see Chaplin v. Chaplin, 3 P. W. 233 ; 
 Hamilton v. Ball, 2 Ir. Eq. Rep. 191 ; Groves v. Groves, 3 Y. & Jer. 163. 
 
 (x) Matthew v. Hanbury, 2 Vern. 187 ; Brackenbiiry v. Brackeuburj', 2 J. & W. 
 391 ; Miles v. Durnford, 2 Mac. & Gord. 643 ; and see Phillpotts v. Phillpotts, 10 
 Com. B. Rep. 85 ; Groves v. Groves, 3 Y. & Jer. 163. See a classification of the 
 cases in reference to cohabitation bonds, 3 Mac. & Gor. note (c), page 100 ; Chil- 
 ders V. Childers, 3 Kay & Johns. 310 ; under appeal at the date of publication. 
 February, 1858. — 12
 
 174 LEWIN ON THE LAW 01 T R T S T S, ETC. 
 
 he assigned all his interest in the mercantile concern to his brother 
 William in trust for himself; and William executed a declaration of 
 trust accordingly. Shortly afterwards, William also, intending to enter 
 „-, into a banking-house, prevailed on Thomas to become trustee 
 [ 13J] *|^Qj.jj fQj. iiimself and John, for their respective shares in the 
 partnership. William Brovra died, and Thomas Brown, the trustee, 
 became bankrupt. The legatees of William filed a bill against the 
 assisnees and others to have the benefit of the secret trust, and Lord . 
 Redesdale said, <' I will not enter into the question, whether William 
 mio-ht not have compelled Thomas to account with him as trustee, if he 
 had brought a bill in his lifetime ; but, as between the creditors and 
 legatees of William (on the one side) and Thomas (on the other,) there 
 is no doubt, in point of conscience, Thomas was bound to consider this 
 a trust for them ; and accordingly he does, after the death of William, 
 acknowledge himself to be a trustee. I remember a case, where a per- 
 son, who was executor to a smuggler, on being called on to account for 
 the estate of the testator, endeavoured to avoid a considerable part of the 
 amount, by saying that they were smuggling transactions, on which the 
 courts would not allow any action to be maintained. The answer was, 
 all that died with the smuggler ; he could not have himself sued, but 
 his executor shall not set up that as a defence against his creditors and 
 legatees."(^) 
 
 Afterwards, John Brown himself filed a bill in chancery to have the 
 benefit of the trust ; but Lord 3Ianners said, " The bill in this case is 
 brought by John Brown himself, and I am quite clear that he cannot 
 recover; and, as he has endeavoured to make this court ancillary to his 
 plan for evading the provisions of a positive law, I must dismiss the bill 
 with costs."(s) 
 
 Where, however, the trust, though unlawful, and therefore inoperative, 
 is not tainted with fraud, the court may grant relief even to the settlor. 
 Thus, A. settled personal property upon B. and C, and such other 
 illegitimate children of D. as should be thereafter born, if they respec- 
 tively attained the age of 25. B. and C. died under 25, but other 
 children were born, and then A. filed a bill for the retransfer of the 
 fund, and there being no fraud on the part of the settlor it was so 
 directed, (o) 
 
 [*140] 
 
 ^CHAPTER VIL 
 
 IN WHAT LANGUAGE A TRUST MAY BE DECLARED. 
 
 A PERSON may declare a trust either directly or indirectly : the former, 
 by creating a trust eo nomine in the form and terms of a trust; the 
 latter, without aff'ecting to create a trust in words, by evincing an inten- 
 
 {y) Joy V. Campbell, 1 Sch. & Lef. 328, see 335, 339. 
 
 (z) Ottley V. Browne, 1 B. & B. 360 
 
 (a) Wilkinson v. Wilkinson, 1 Y. & C. Ch. Ca. 657.
 
 IN WHAT TERMS A TRUST MAY BE DECLARED. I75 
 
 tion, which the court will effectuate through the medium of au implied 
 trust.(l) 
 
 SECTION I. 
 
 OF DIRECT OR EXPRESS DECLARATIONS OF TRUST. 
 
 In creating a trust, a person need only make his meaning clear as to 
 the interest he intends to give, without regarding the technical terms of 
 the common law in the limitation of legal estates : an equitable fee may 
 be created without the *word ''heirs," and an equitable entail |-:i:-|^-j-i 
 without the words << heirs of the body;"(6) provided words L J 
 which though not technical are yet popularly equivalent be used, or the 
 intention otherwise sufficiently appear upon the face of the instrument. 
 
 And if an estate be devised unto and to the use of A. and his heirs, upon 
 trust for B., without any words of limitation, B. takes the equitable fee; 
 for the whole estate passed to the trustees, and whatever interest they 
 took was given in trust for B.(c) But if an estate be conveyed by deed 
 unto and to the use of a trustee, and his heirs, in trust for the settlor for 
 life, and after her death upon trust for her children, simply without the 
 word heirs, the children by analogy to legal limitations take an estate for 
 life only.(c?) 
 
 But though technical terms be not absolutely necessary, yet no rule is 
 better established than that where technical terms are employed, they 
 shall be taken in their legal and technical sense.(e) 
 
 Lord Hardwicke indeed said that, in limitations of a trust either of real 
 or personal estate to be determined in that court, the construction ought 
 to be the same as in limitations of the legal estate, with this distinction. 
 
 {b) See Shep. Touch, by Preston, 106. 
 
 (c) More v. Cleghorn, 10 Beav. 423 ; affirmed on appeal, 12 Juris. 591 ; Knight 
 T. Selby, 3 Man. & Gran. 92 ; Doe v. Cafe, V Exch. Rep. 675. 
 
 (d) Holliday v. Overton, 14 Beav. 467, 15 Beav. 480. 
 
 (e) Wright v. Pearson, 1 Ed. 125, per Lord Henley; Austen v. Taylor, 1 Ed. 
 361, per eundem ; Synge v. Hales, 2 B. & B. 507, per Lord Manners ; Jervoise v. 
 Duke of Northumberland, 1 J. & W. 571, per Lord Eldon ; Lord Glenorchy v. 
 Bosville, Gas. t. Talb. 19, per Lord Talbot ; Bale v. Coleman, 8 Vin. 268, per Lord 
 Harcourt. 
 
 (1) The terms Implied Trusts, Trusts by Operation of Laic, and Constructive 
 Trusts, appear from the books to be almost synonymous expressions ; but for the 
 purposes of the present work the following distinctions, as considered the most 
 accurate, will be observed -.—1. An implied trust is one declared by a party not 
 directly, but onlv by implication ; as where a testator devises an estate to A. and 
 his heirs, not doubtinrf that he will thereout pay an annuity of 20Z. per annum to 
 B. for his life, in which case A. is a trustee for B. to the extent of the annuity. 
 
 2. Trusts by operation of law are such as are not declared by a party at all, either 
 directly or "indirectly, but result from the effect of a rule of equity ; as where an 
 estate is devised to A. and his heirs, upon trust to sell and pay the testator's debts, 
 in -ivhich case the surplus of the beneficial interest results to the testator's heir. 
 
 3. Constructive trusts (which form one branch of trusts by operation of law, while 
 resulting trusts constitute the other) are such trusts as the court elicits by a con- 
 struction put upon certain acts of parties, as where a tenant for life of leaseholds 
 renews the lease on his own account, in which case the law gives the benefit of 
 the renewed lease to those who were interested in the old lease.
 
 176 LEAVIN ON THE LAAV OF TRUSTS, ETC. 
 
 unless the intention of the testator or author of the trust plainly appeared 
 to the contrary. (f) But this position has since been repeatedly and 
 expressly overruled. " I am of opinion/' said Lord Henley, <■'■ that a 
 limitation in a trust, perfected and declared by a testator, must have the 
 same construction as the devise of a legal estate executed ; and to hold 
 the contrary would make property very precarious and uncertain ; the 
 testator would mean one thing in this court, and the direct contrary on 
 the other side of the hall."(^) And on another occasion he observed, 
 " I am very clear that this *court cannot make a different con- 
 [ -'■^-'J struction in the limitation of a trust, than courts of law could 
 make on a limitation in a will, for in hoth cases the intention shall take 
 
 place, "(/i) 
 
 As the rule in Shelley's case is not one of construction, that is, of 
 intention, but of law, and was established to remedy certain mischiefs, 
 which, if heirs were allowed to take as purchasers, would be introduced 
 into feudal tenures ; it may be thought, that, as trusts are wholly inde- 
 pendent of tenure, they ought not to be affected by the operation of the 
 rule; and the cases of Withers v. Allgood,(i) and Bagshaw v. Spencer,(/l-) 
 seem to lend some countenance to the doctrine. But not to mention that 
 Lord Hardwicke himself appears in Garth v. Baldwin^ to have doubted 
 the position advanced by him in Bagshaw v. Spencer, other subsequent 
 authorities have now perfectly established the principle, that although 
 the rule may not be equally applkaUe to trusts, it shall be equally 
 iipplied.{it%\ 
 
 lu a recent case,(n') a testator by his will devised an estate to his eldest 
 son, George Henry Arnold, for 99 years if he so long lived, and subject 
 to the term to Henry Hoare and Thomas Gilbert, and their heirs, during 
 the life of the termor to preserve contingent remainders, and after the 
 determination of the said estates to the heirs of the hody of the said G. 
 H. Arnold. Had the testator left the devise in this form, it is clear that 
 the heirs of the body of G. H. Arnold would have taken as purchasers. 
 The testator afterwards, by a codicil, confirmed the will, but devised all 
 his estates to the use of H. J. Arnold, H. Peters, H. Hoare, and E. Mor- 
 rison, and their heirs, upon trust to convey such parts thereof as they 
 should think fit for securing a jointure of 1200A to his wife, the said H. 
 J. Arnold. Thus, by the codicil, the legal fee simple became vested in 
 r*14^1 ^^^^ ^^^^ trustees, and the limitations of the will *became equi- 
 L J table, and it was contended that as the equitable estate for the 
 life of G. H. Arnold resulted to him as the heir-at-law, it united with 
 the limitation to the heirs of his body by the operation of the rule in 
 Shelley's case, and that G. H. Arnold consequently became tenant in 
 
 (/) Garth v. Baldwin, 2 Ves. 655. [y) Wright v, Pearson, 1 Ed. 125. 
 
 [h) Austen v. Taylor, 1 Ed. 3GV ; and see Philips v. Brydges, 3 Ves. jun. 125 ; 
 .Jeryoise v. Duke of Northumberland, 1 J. & W. 571. 
 
 (i) Cited in Bagshaw v. Spencer, 1 "Ves. 150 ; 1 Coll. Jur. 403. 
 
 (A;) 1 Ves. 142; 1 Coll. Jur. 378, {I) 2 Ves. 646. 
 
 (m) Wright V. Pearson, 1 Ed. 128 ; Brydges v. Brydges, 3 Ves. 120 ; Jones v. 
 Morgan, 1 B. C. C. 206 ; Webb v. Earl of Shaftesbury, 3 M. & K. 599 : Roberts v. 
 Dixwell, 1 Atk. 610, West, 536 ; Britton v. Twinino-, 3 Mer 176 
 
 (n) Coape v. Arnold, 2 Sm. & Gif. 311.
 
 IN WHAT TEEMS A TRUST MAY BE DECLARED. I77 
 
 tail. It was decided, however, tliat under tlie circumstance.s tlielieirs of 
 the body of Gr. H. Arnold took as purchasrrs. The cases of Adams v. 
 Savage, 2 Salk. 679 ; and Rawley v. Holland, 22 Vin. Ab. 189, PI. 11, 
 (in which it was held that where a term of years is expressly limited to 
 the grantor, with a use after his death to the heirs of his body, no result- 
 ing use to the grantor for his life can be implied, as it would be 
 repugnant to the term expressly limited to him, and in fact destroy it,) 
 were adverted to in the judgment of the vice-chancellor with seeming 
 approbation ; though the decision was not rested upon them. The autho- 
 rity of these cases, however, has been much disputed, the question being 
 one, not of implied intention but of legal operation. (0) And with refe- 
 rence to the decision itself it may be observed that the equitable freehold 
 could not during the life of G. H. Arnold be in suspense, and could be 
 vested in no one but G. H. Arnold, the heir-at-law ; and if so, the life- 
 estate to G. H. Arnold, and the limitation to the heirs of his body, ought, 
 according to the general acceptation of the rule in Shelley's case, as one 
 not of intention but of legal operation, to have united and formed an 
 estate tail. The true ground to which the decision should be referred 
 appears to be this: the codicil was made for a particular purpose, viz., 
 for securing the jointure, and as it confirmed the will in all other respects, 
 the testator's intention evidently was, that after securing the jointure, the 
 trustees of the codicil should convey the estate to the uses declared by the 
 will. It was, therefore, an executory trust, and the question was not 
 whether in mere equitable estates a life interest resulting to the heir-at- 
 law would unite with a limitation to the heirs of his body, but whether 
 according to the true construction of the will the settlement was not 
 meant to be executed in such a form as to make the heirs of the body 
 purchasers. In this light the question was one of *intention, r*-j^^j.-i 
 and not of legal operation. The case was subsequently afiirmed L -• 
 on appeal by Lord Cranworth, and it is conceived substantially, though 
 not in terms, upon the ground above indicated as the true principle. (j)) 
 
 We have said, that, if technical words be employed, they must be taken 
 in their legal and technical sense ; but as to this, a distinction must be 
 drawn between trusts executed, and trusts that are only executory : for to 
 trusts executed the position is strictly applicable, but in the case of trusts 
 that are executory it must be received with considerable allowance. 
 
 A trust executed is where the limitations of the equitable interest are 
 complete and final ; in the executory trust, the limitations of the equi- 
 table interest are intended to serve merely as minutes or instructions for 
 perfecting the settlement at some future period. 
 
 The distinction we are considering was very early established, and was 
 recognised successively by Lord Cowper,(r2) Lord King,(r) Lord Talbot,(.s) 
 and by no one more frequently than by Lord Hardwicke himself ;(/) yet 
 
 (0) See note hy Butler to Fearne's Contingent Remainders, p. 41. 
 {p) Coape V. Arnold, 4 De Gex, Mac. & Gord. 5f4. 
 
 Iq) Bale v. Coleman, 8 Vin. 267 ; Earl of Stamford v. Sir John Hobart, 3 B. P. 
 C. 33. 
 (r) Papillon v. Voice, 2 P. W. 471. 
 (s) Lord Gleuorchy v. Bosville, Cas. t. Talbot, 3. 
 (<) Gower v. Grosveuor, Barnard, 62 : Roberts v. Dixwell, 1 Atk. 607 ; Basker-
 
 J78 LEWIN OX THE LAAV OF TKUSTS, ETC. 
 
 in Ba2;shaw v. Spencer(?/) Lord Hardwicke almost denied that any such 
 distinction existed. " As to the difference," he said, " between trusts 
 executed and trusts executory, no one is more unwilling than I am quieta 
 movere ; but this distinction never has been established by any direct 
 resolution, though said arguendo, and was it to be examined to the bot- 
 tom, it might sound strange how it should be established. All trusts in 
 notion of law are executory,(v) and to be carried into execution here by 
 suhpoena. The first essential part of a trust is, that the trustee is to con- 
 vey the estate some time or other, whether the testator has directed it or 
 not, which every testator is presumed to know ; ^therefore a doubt 
 L J may be reasonably made how there can be a difference, whether 
 the testator has directed a conveyance or not." But in a subsequent 
 case(!r) his lordship felt himself called upon to offer some explanation. 
 " He did not mean," he said, <' in Bagshaw v. Spencer, that no weight 
 was to be laid on the distinction, but that, if it had come recently before 
 him, he should then have thought there was little weight in it, although 
 he should have had that deference for his predecessors, as not to lay it 
 out of the case, not intending to say that all which his predecessors did 
 was wrong founded, which he desired might be remembered." 
 
 But whatever doubts may formerly have existed upon the subject, 
 they have long since been dispelled by the authority of succeeding judges. 
 " The words executory trust," said Lord Xorthington, " seem to me to 
 have no fixed signification. Lord King describes an executory trust to 
 be, where the party must come to this court to have the benefit of the 
 will. But that is the case of every trust ; and I am very clear, that 
 this court cannot make a different construction on the limitation of a 
 trust, than courts of law would make on a limitation in a will, for in both 
 cases the intention shall take place. The true criterion is this : Wher- 
 ever the assistance of this court is necessary to complete a limitation, in 
 that case, the limitation in the will not being complete, that is sufficient 
 evidence of the testator's intention that the court should model the limi- 
 tations; but where the trusts and limitations are already expressly declared, 
 the court has no authority to interfere, and make them different from 
 what they would be at law."(x) And Lord Eldon observed, " Where 
 there is an executory trust, that is, where the testator has directed some- 
 thing to be done, and has not himself completed the devise, the court 
 has been in the habit of looking to see what was his intention ; and if 
 what he has done amounts to an imperfection with respect to the exeeu- 
 r*146"l ^^^"^ °^ ^^^^ intention, the court inquires what it is itself to do, 
 -• *and it will mould what remains to be done, so as to carry that 
 intention into execution : I repeat, where there is a trust executory ; be- 
 
 ville V, BaskerviUe, 2 Atk. 279 ; Marryatt v. Townlv, 1 Ves. 102 ; Read v. Snell, 
 i Atk. 648 ; Woodhouse v. Hoskias, 3 Atk. 24. 
 
 (m) 1 Ves. 152 ; and see Hopkias v. Hopkins, 1 Atk. 594. 
 
 (w) bee Lord Eldon's observations, Jervoise v. Duke of Northumberland, 1 J. 
 
 (\v'' ^^"^ ^°^*^ Henley's, Austen v. Taylor, 1 Ed. 366. 
 
 {w) Exel V. Wallace, 2 Ves. 323. And Lord Henlev once said, he believed Lord 
 narawicke had at last renounced his opinion, Barnard v. Proby, 2 Cox, 8. 
 
 wifi. I'" ^- '^''y^°'' ^ ^^- ^^'^' 368 ; and see Stanley v. Lennard, 1 Ed. 95 ; 
 Wright V. Pearson, 1 Ed. 125.
 
 IN WHAT TERMS A TRUST MAY BE DECLARED. IJQ 
 
 cause one is a good deal confused by tlie inaccuracy of the expressions 
 'trust executory/ and 'trust executed.' The latter, no doubt, in one 
 sense of the word is a trust executory, that is, if A. B. is a trustee for 
 C. J)., or for C. D. and others, that in this sense is executory, that C. 
 D., or C. D. and the other persons, may call upon A. B. to make a convey- 
 ance,.and execute the trust. But these are cases where the testator has 
 clearly decided what the trust is to be ; and, as equity follows the law, 
 where the testator has left nothing to be done, but has himself expressed it, 
 there the effect must be the same, whether the estate is equitable or legal. ' Yi/) 
 
 We proceed to the inquiry to what extent in executory trusts a lati- 
 tude of construction is admissible : and to draw the line correctly, we 
 must again distinguish between executory trusts in marriage articles, 
 where the court has a clue to the intention from the very nature of the 
 contract, and executory trusts in ivills, where the court knows nothing 
 of the object in view a priori, but in collecting the intention must be 
 guided solely by the language of the instrument. 
 
 This distinction was at first but very imperfectly understood. Because 
 executory trusts under wills admitted a degree of latitude, it was held 
 by some, they were to be treated precisely on the same footing as execu- 
 tory trusts in marriage articles j while, because trusts under wills did 
 not admit an equal latitude of construction, it was held by others they 
 were not to be distinguished from trusts executed. (,?) Even Lord Eldon 
 once observed, " There is no difference in the execution of an executory 
 trust created by will, and of a covenant in marriage articles ; such a dis- 
 tinction would shake to their foundation the rules of equity.'Ya) But 
 Lord Manners said he could not assent to this doctrine jfi) and Lord 
 Eldon some time after took an opportunity of correcting himself. (c) 
 
 *The distinction we are considering has been put in a very r-:!;-i (--i 
 clear light by Sir W. Grant. " I know of no difference/' he L * J 
 said, "between an executory trust in marriage articles and in a will, 
 except that the object and purpose of the former furnish an indication of 
 intention which must be wanting in the latter. Where the object is to 
 make a provision by the settlement of an estate for the issue of a mar- 
 riage, it is not to be presumed that the parties meant to put it in the 
 power of the father to defeat that purpose, and appropriate the estate to 
 himself. If, therefore, the agreement be to limit an estate for life, with 
 remainder to the heirs of the body, the court decrees a strict settlement 
 in conformity to the presumable intention. But if a will directs a limi- 
 tation for life, with remainder to the heirs of the body, the court has no 
 such ground for decreeing a strict settlement. A testator gives arbitra- 
 rily what estate he thinks fit; the subject being mere bounty, the 
 intended extent of that bounty can be known only from the words in 
 which it is given. But if it is clearly to be ascertained from any. thing 
 
 {y) Jervoise v. Duke of Northumberland, 1 J. & W. 570 ; and see Coape v. 
 Arnold, 4 De Gex M. & G. 585. 
 
 (z) See Bale v. Coleman, 8 Vin. 267. 
 
 \a) Countess of Lincoln v. Duke of Newcastle, 12 Yes. 227, 230 ; and see Tur- 
 ner V. Sargent, IT Beav. 519. 
 
 {h) StraflFord v. Powell, 1 B. & B. 25; Synge v. Hales, 2 B. & B. 508. 
 
 (c) Jervoise v. Duke of Northumberland, 1 J. & W. 574.
 
 180 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 in the will, that the testator did not mean to use the expressions which 
 he has employed, in their strict proper and technical sense, the court in 
 decreeing such settlement as he has directed, will depart from his words 
 in order to execute his intention."(i) 
 
 To apply the foregoing distinction to the cases that have occurred : if 
 in marriage artidrs the real estate of the husband or wife be so limited 
 to the heirs of the hodi/, or the issue[c) of the contracting parties, or either 
 of them, that heirs of the body, or issue, if taken in their ordinary legal 
 sense, would enable one or other of the parents to defeat the provision 
 intended for the children, these words will then be construed in equity 
 to mean first and other sons ; and the settlement will be made upon them 
 successively in tail, as purchasers. (fZ) 
 
 *If the settlement has been already made, then, provided the 
 [ -'^^^J execution of it was after the marriage, it will be rectified by the 
 articles ;(e) but if the execution of it was prior to the marriage, the court 
 will presume the parties to have entered into a different agreement,(/) 
 unless the settlement expressly state itself to be made in pursuance of 
 the articles, when that presumption will be rebutted, and the settlement 
 will be rectified, (^) or unless it can be shown that the settlement was 
 intended to be in conformity with the articles, and there is clear and 
 satisfactory evidence that the discrepancy has arisen from mistake. (^) 
 
 Under the law as it stood prior to the Fines and Recoveries Act(i) a 
 strict settlement was not decreed, where the property of the husband was 
 limited to the heirs of the body of the wife ; for this created an entail 
 which neither husband nor wife could bar without the concurrence of the 
 other, and the intent might have been, that the husband and the wife 
 jointhj should have the power of destroying the entail ;(ji') but, it is con- 
 ceived, that as to articles executed subsequently to the act referred to, 
 the case would be otherwise. (Z-) 
 
 Nor will the court read heirs of the body as first and other sons, where 
 such a construction is negatived by any thing in the articles themselves : 
 
 (6) Blackburn v. Stables, 2 V. & B. 369; and see Maguire v. Scully, 2 Hog. 
 113 ; Rockford v. Fitzmaurice, 1 Conn. & Laws. 173 ; 2 Drur. & War. 18 ; 4 Ir. 
 Eq. Rep. 375. 
 
 (c) Dod V. Dod, Amb. 274. 
 
 {d) Handick v. Wilkes, 1 Eq. Ca. Ab. 393 ; Trevor v. Trevor, 1 P. W, 622 ; 
 Jones V. Langton, 1 Eq. Ca. Ab. 392 ; Cusack v. Cusack, 5 B. P. C. 116 ; Griffith 
 v. Buckle, 2 Vern. 13 ; Stonor v. Curwen, 5 Sim. 269, per Sir L. Shadwell ; Da- 
 vies V. Davies, 4 Beav. 54 ; Rochford v. Fitzmaurice, ubi supra. 
 
 (e) Streatfield v. Streatfield, Cas. t. Talb. 176 ; Warrick v. Warrick, 3 Atk. 293, 
 per Lord Hardwicke ; Legg v. Goldwire, Cas. t. Talb. 20, per Lord Talbot ; Bur- 
 ton V. Hastings, Gilb. Eq. Rep. 113 ; S. C. 1 Eq. Ca. Ab. 393, overruled. 
 
 (/) Legg V. Goldwire, Cas. t. Talbot, 20 ; and see Warrick v. Warrick, 3 Atk. 
 291. 
 
 i'j) Honor v. Honor, 1 P. W. 123 ; Roberts v. Kingsley, 1 Ves. 238 ; West v. 
 Errissey, 2 P. W. 349 ; but not it seems against a purchaser, Warrick v. Warrick, 
 2 Atk. 291. to 1 ! 
 
 (h) Bold V. Hutchinson, 5 De Gex, M. & G. 568. 
 (0 See 3 & 4 W. 4. c. 74, s. 16, 17. 
 
 0) Howel V. Howel, 2 Ves. 358 ; Whately v. Kemp, cited ib. ; Honor v. Honor, 
 , ;. ^J? ' GvQ^xv V. Ekins, 2 Atk. 477, per Lord Hardwicke: Highway V. Ban- 
 ner, 1 B. C. C. 587, per Sir L. Kenyon. 
 
 {k) Rocbfort v. Fitzmaurice, 2 Drur. & War. 19.
 
 IN WHAT TERMS A irvUST MAY BE DECLARED, jgl 
 
 as if one part of an estate be limited to the husband for life, the remainder 
 to the wife for life, remainder to the first and other sons in tail, and 
 another part be given to the husband for life, remainder to the heirs male 
 of his body ; for, as it appears the parties knew how a strict settlement 
 *should be framed, the limitation of part of the estate in a r:i;i j^q-i 
 diflferent mode could only have proceeded from a difierent in- L J 
 tention.0 
 
 It was formerly argued, that daughters in marriage articles were not 
 entitled to the same consideration as sons, on the ground that they do 
 not, like sons, continue the name of the family, and are generally pro- 
 vided for, not by the estate itself, but by portions out of the estate ; but 
 it is now clearly settled, that, as they are purchasers under the marriage, 
 and are entitled to some provision, the court will in their favour construe 
 heirs female to mean daughters ;fm) and, except the articles themselves 
 make an express provision for them by way of portion, kc.,{ii) will hold 
 daughters, as well as sons, to be included under the general term of 
 heirs of the body,(o) or issue. (p) And the settlement will be executed 
 on the daughters, in default of sons, as tenants in common in tail gene- 
 ral, with cross remainders between them. (5') 
 
 If chattels be articled to be settled on the parents for life, and then 
 on the heirs of the hody of either, or both, it seems the chattels will not 
 vest absolutely in the parents, but in the eldest son as the heir, though 
 taking by purchase, and if there be no son, in the daughters as co- 
 heiresses ;(>•) and for the son or daughters to take, it is not necessary 
 that they should survive the parents and become the actual heir,(s) 
 unless there be words in the articles to give it to the heirs of the body 
 living at the death of the surviving parent, as "if the parent die with- 
 out leaving heirs of the body."(A 
 
 Again, if in marriage articles a party covenant to settle goods and 
 ^chattels upon the same trusts, and for the same intents and pur- ^^^ r^-. 
 poses, as the freeholds are settled, the court will not apply the L J 
 limitations to the personal estate literally, the effect of which would be 
 to vest the absolute interest in remainder in the first son on his birth, but 
 will insert a proviso that will have the effect at least to a certain extent, 
 of making the personal estate follow the course of the real. 
 
 Sir Joseph Jekyll said, the practice of conveyances was to insert a 
 limitation over on " dying under 21 j"(«) but Lord Hardwicke conceived 
 
 {I) Howel V. Howel, 2 Ves. 359 ; and see Powell v. Price, 2 P. W. 535 ; Cham- 
 bers V. Chambers, Fitzgib. Rep. 127 ; S. C. 2 Eq. Ca. Ab. 35 ; Rochlbrd v. Fitz- 
 maurice, 1 Conn. & Laws. 174. 
 
 {m) West V. Errissey, 2 P. W. 349. 
 
 (ra) Powel v. Price, 2 P. W. 535 ; and see Mr. Fearne's observations. Conting. 
 Rem. 103. 
 
 (0) Burton v. Hastings, Gilb. Eq. Rep. 113 ; S. C. 1 Eq. Ca. Ab. 393, per Lord 
 Cowper. 
 
 {p) Hart V. Middlehurst, 3 Atk. 371 ; and see Maguire v. Scully, 2 Hog. 113 ; 
 S. C. 1 Beat. 370. 
 
 {q) See Marryat v. Townly, 1 Ves. 105. 
 
 (r) Hodgeson v. Bussey, 2 Atk. 89 ; S. C. Barn. 195. Sec Bartlett v. Green, 13 
 Sim. 218. 
 
 (s) Theebridge v. Kilburne, 2 Ves. 233. {t) Read v. Snell, 2 Atk. 642. 
 
 (m) Stanley v. Leigh, 2 P. AV. 690.
 
 182 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 tlie common limitation over to be on " dying under 21 without issue."(D) 
 In The Duke of Newcastle v. The Countess of Lincoln, (?f) the chattels 
 were articled to be settled to the same uses as the realty, viz. to A. for 
 life, remainder to the first and other sons in tail male, remainder to B. 
 for life, remainder to B.'s first and other sons in tail male, remainders 
 over. A. died, having had a son who lived only nine months. Lord 
 Loughborough said, « I perfectly agree that in wills you are not to do 
 for the testator all that can be done by law ; you are to do for the testa- 
 tator no more than what he has intended to be done, and according to 
 the common acceptation of the words. But I put it to you whether in 
 the nature of things there is not a radical and essential difi"erence 
 between marriage-settlements and wills. The parties contract upon a 
 settlement for all the remainders; they are not voluntary, but within the 
 consideration ; the issue are all purchasers. Suppose then a settlement 
 to be made of freehold estate, and as to the leasehold estate there is only 
 this article, that the settlement shall be analogous to that of the free- 
 hold : do I execute it, and make a like settlement, by giving an interest 
 which cuts off all the issue ? Suppose a bill was brought to carry the 
 settlement into effect after a child had lived a single day, should I per- 
 mit the father to say it was his property ? It is utterly impossible to 
 make the identical settlement of the leasehold estate as of the freehold ; 
 but if I am to make it in analogy to the settlement of the freehold, shall 
 P^l r-, n I not carry it on to all the *near events, or shall they fail because 
 L -I I cannot embrace all the remote events ?(a;) My opinion de- 
 cidedly is, that, in the case of marriage articles, the settlement should be 
 such that no child born and not attaining 21 should, by his birth, 
 attain a vested interest to transmit to his representatives, and thereby 
 defeat the ulterior objects of the articles, which are not decidedly in 
 favour of one son, but equally extended to every son ; and that I take to 
 be the settled rule and established practice. 'Y^) His lordship therefore 
 held that the leaseholds had not vested absolutely in the deceased son of 
 A., and ordered a proviso to be inserted in the settlement, that they 
 should not vest absolutely in any son of B, who should not attain 21, or 
 die under that age leaving issue male. From this decision an appeal 
 was carried to the house of the lords -Jz) but, before the cause could be 
 heard, a son of B. having attained 21, the decree was, that the son of B. 
 had become absolutely entitled. Thus the house of lords decided that 
 the absolute interest had not vested in the first tenant in tail on his 
 birth; but what proviso ought to have been inserted, whether a limita- 
 tion over " on dying under 21," or "on dying under 21 without issue 
 male," the house in event was not called upon to determine. The order 
 of the house of lords in this case was made with the approbation of Lord 
 EUenborough and Lord Erskine, who took part in the debate : and also 
 of Lord Thurlow.(a) But Lord Eldon denied before the house that 
 there was any distinction between articles and wills, and therefore rely- 
 
 {v) Gower v. Grosvenor, Barn. 63 ; S. C. 5 Mad. 348. 
 (w) 3 Ves. 387. (z) 3 Yes. 394. 
 
 y) lb. 397. (^) 12 Ves. 218. 
 
 (a) 12 Ves. 237.
 
 IN WHAT TERMS A TRUST MAY BE DECLARED. 1S3 
 
 ing upon Foley v. Burnell, and Vaughan v. Burslem, two cases upon 
 wills decided by Lord Thurlow, he said had the cause come origi- 
 nally before him, he should have decreed the absolute interest to have 
 vested in the eldest child upon birth ; that, notwithstanding seve- 
 ral dicta in favour of a limitation over, no case could be found in which 
 articles had been actually so executed; that assignments had been made 
 of leasehold property under the notion that a son when born would take 
 an absolute interest ; and, were the house to sanction the decree of 
 Lord Loughborough, it would shake a *very large property. (6) j-.^, _.^-. 
 However, his lordship conceived that Lord Hardwicke's doctrine L ' ""J 
 was originally the best, and therefore, recollecting the opinion of that 
 great judge, the opinion of Sir Joseph Jekyll, and the decision of the 
 court below, and knowing the concurrent opinions of Lord Ellenborough 
 and Lord Erskine, and also the opinion of Lord Thurlow (whose present 
 sentiments, however, he could not reconcile with the cases of Foley v. 
 Burnell, and Vaughan v. Burslem, formerly decided by his lordship, )(r) 
 he bowed to all these authorities ; and, though he was in some degree 
 dissatisfied with the determination, he nevertheless would not move an 
 amendment. ((Z) 
 
 It must be observed, that a settlement of the personalty cannot be 
 made exactly analogous to a settlement of the realty, whether the limi- 
 tation adopted be " on dying under 21," or " on dying under 21 with- 
 out issue." For if the former be supposed, then, the object of the 
 articles being to knit the leasehold estate to the freehold, if the son die 
 under age leaving issue who will succeed to the freehold, the two estates 
 will go in different directions. But, if the limitation over be " on dying 
 under 21 without issue," then, if the son die leaving issue, the grand- 
 child may die under age and unmarried, when the leaseholds will go to 
 the son's personal representative, while the freeholds will devolve on the 
 second son.(e) The case of the Countess of Lincoln v. The Duke of 
 Newcastle appears to be the only authority upon the subject, and that has 
 sanctioned the insertion of the proviso, '' on dying under 21 without issue." 
 
 Again, in marriar/e articles, ?l?> joint-tenancy is an inconvenient mode 
 of settlement on the children of the marriage (for, during their minori- 
 ties no use can be made of their portions, as the joint-tenancy cannot be 
 severed,j(/) the court will rectify the articles by the presumed intent of 
 the contract, and will permit *words that would be construed a |-^,_„-. 
 joint-tenancy at law, to create in equity a tenancy in common. (7) L J 
 
 In other cases the court has varied the literal construction by supply- 
 ing words, as where the agreement was to lay out 200^ in the purchase 
 of 30?. a-year, to be settled on the husband and wife for their lives, 
 remainder to the heirs of their bodies, remainder to the husband in fee, 
 
 (b) 12 Ves. 236, 237. 
 
 (cj Lord Eldou could not reconcile Lord Thurlow's opinion with these cases, 
 because his lordship refused to admit the distinction between articles and wills. 
 
 {d) The Countess of Lincoln v. The Duke of Newcastle, 12 Yes. 237. 
 
 (e) Countess of Lincoln v. Duke of Newcastle, 12 Yes. 228, 229. 
 
 (/) Taggart v. Taggart, 1 Sch. & Lef. 88, per Lord Redesdale ; and see Rigden 
 V. Yallier, 3 Atk. 734, and Marryat v. Townley, 1 Yes. 103. 
 
 {9) Taggart v. Taggart, 1 Sch. & Lef. 84.
 
 184 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 and, until the settlement should be made, the 200^. was to be applied to 
 the separate use of the wife ; and, if no settlement were executed during 
 their joint lives, the 200^. was to go to the wife, if living; but, if she 
 died before her husband, then to her brother and sister; and the wife 
 died before her husband, but left issue ; it was held the brother and 
 sister had no claim to the fund, the words "if she died before her 
 husband" intending plainly if she so died " without leaving issue."(^) 
 
 Next as to icilh; and here, as no presumption arises a priori, that 
 " heirs of the hody," were intended as words of purchase, if the executory 
 trust of real estate be to ''A. and the heirs of his body,"(i) or to "A. 
 and the heirs of his body and their heirs,"(y) or to A. for life and after 
 his decease to the heirs of his body,"(^) the legal and ordinary construc- 
 tion will be adopted, and A. will be made tenant in tail. So where the 
 estate was directed to be settled on the testator's " daughter and her 
 children, and, if she died without issue," the remainder over, the court 
 said, that, by an immediate devise of the land in the words of the will, 
 the daughter would have been tenant in tail, and in the case of a volun- 
 tary devise the court must take it as they found it, though upon the 
 like words in marriage articles it might have been otherwise. (?) 
 r*i ^4.-1 ^"^^ where a testator directed lands to be settled on his 
 L -1 <' nephew *for life, remainder to the heirs male of his body, and 
 the heirs male of the body of every such heir male, severally and suc- 
 cessively one after another as they should be in seniority of age and 
 priority of birth, every elder and the heirs male of his body to be pre- 
 ferred before every younger," Lord Cowper said, the nephew took by a 
 voluntary devise, and, although executory, it was to be taken in the 
 very words of the will as a devise, and was not to be supported or carried 
 further in a court of equity than the same words would operate at law in 
 a voluntary conveyance.(7?i) The decision apparently went upon the 
 ground that the words '< and the heirs male of the body of every such 
 heir male, severally and successively," &c,, were all included in the 
 notion of an entail, and expressio corum, qua: tacite insunt, nihil ojicratur. 
 
 And in a more recent case, where the executory trust was for A. 
 generally, with a direction, that the trustees should not give up their 
 trust till " a proper entail was made to the heir male by him," it was 
 determined that A. took an estate tail.(?2.) But, in another case, where 
 the devise was extremely similar, viz., to A. with a direction that the 
 estate should be entailed on his heir male. Lord Eldon, on the assump- 
 tion that it was an executory trust, and not a legal devise, considered 
 
 {h) Kentish v. Newman, 1 P. W. 234; and see Targus v. Puget, 2 Yes. 194 : 
 Master v. De Croisraar, 11 Beav. 184; Martin v. Martin, 2 R. & M. 507. 
 
 [i) Harrison v. Naylor, 2 Cox, 247 ; Bagshaw v. Spencer, 1 Yes. 151, per Lord 
 Hardwiclie ; Marshall v. Bousfield, 2 Mad. 16G. 
 
 0") Marryat v. Townley, 1 Yes. 104, per Lord Hardwicke. 
 
 {k) B ackburn v. Stables, 2 Y. & B. 370, per Sir W. Grant : Seale v. Seale, 1 
 
 /n o ' ^^'^'^^^ ^- '^^^"^^' 2 Atk. 266, per Sir J. Jekyll. 
 
 {t) bweetapple v. Bindon, 2 Yern. 536. 
 
 (to) Legattv. Sewell, 2 Yern. 551. 
 
 \fi? n Pp'''''''Y° ""■ '^^^^^es, 2 Y. & B. 367 ; recognized in Marshall v. Bousfied, 2 
 Mad. 166 ; and see Dodson v. Hay, 3 B. C. C. 405.
 
 IN WHAT TERMS A TRUST MAY BE DECLARED. 185 
 
 the entail so doubtful that he would not compel a purchaser to accept a 
 title under it.(oj 
 
 But " heirs of the body" will in the case of executory trusts in wills 
 as well as in articles be read first and other sons, provided the testator 
 expressly manifest such an intention, as if he direct a settlement on A. 
 for life ''without impeachment of waste,"(p) or with a limitation to pre- 
 serve contingent remainders,(3') or if he desire that " care be taken in 
 the settlement that the tenant for life shall not bar the entail ;"(r) and 
 *in one case "■ heirs of the body" was so construed, where a ^^^ - r-i 
 testator had devised to the separate use of a /erne cooert for life, L J 
 so as she alone should receive the rent, and the husband should not 
 intermeddle therewith, and after her decease in trust for the heirs of her 
 body; for, from the limitation to the heirs immediately after the wife's 
 decease, coupled with the direction that the husband should not inter- 
 meddle with the estate, the court collected the intention of excluding 
 the husband's curtesy, an object which could only be accomplished by 
 giving to " heirs of the body" the construction of words of purchasers) 
 
 And a direction to settle on A. and the heirs of his body ''as counsel 
 shall advise,"(<) or « as the executors shall think fit,"(?t) is strong col- 
 lateral evidence, that something more was intended than a simple estate 
 tail. 
 
 And Sir L. Shadwell thought that if a testator directed an estate to 
 be settled on a. feme covert for life, for her separate use, and at her death 
 on her issue, the feme would not be tenant in tail, for the separate use 
 requiring the life estate to be vested in trustees, the equitable estate in 
 the feme could not unite with the legal estate in the issue, and therefore 
 the rule in Shelley's case would not apply.(y) And where the trust was 
 to setttle on A. for life, icithout impeachment of waste, with remainder 
 to his issue in strict settlement, the court directed the estates to be settled 
 on A. for life, without impeachment of waste, with remainder to his sons 
 successively in tail male, with remainder to the daughters, as tenants in 
 common in tail male, with cross remainders in tail male, and the proper 
 limitations to trustees were inserted to preserve contingent remainders. (zp) 
 
 We may here remark that " lieirs of the body" and " issue" are far 
 from being synonymous expressions. The former are properly words of 
 limitation, whereas the latter term is in its *primary sense a p-i Kg-i 
 word of purchase. In several cases the court appears to have L J 
 ordered a strict settlement from the use of the term " issue," where, 
 
 (o) Jervoise v. Duke of Northumberland, 1 J. & W. 559 ; and see Woolmore v. 
 Burrows, 1 Sim. 512. 
 
 {p) Glenorchy v. Bosville, Cas. t. Talbot, 3. 
 
 \q) Papillon v. Voice, 2 P. W. 471 ; and see Rochford v. Fitzmaurice, 1 Conn. 
 & Laws. 158. 
 
 {r) Leonard v. Lord Sussex, 2 Vern. 526. 
 
 (s) Roberts v. Dixwell, 1 Atk. 607 ; S. C. West's Rep. t. Lord Ilardwicke, 536. 
 
 \t) White V. Carter, 2 Ed. 366; reheard, Amb. 670. 
 
 (m) Read v. Snell, 2 Atk. 642. 
 
 {v) See Stonor v. Curwen, 5 Sim. 268 ; Earl of Verulam v. Bathurst, 13 Sim. 386. 
 
 [w) Trevor v. Trevor, 13 Sim. 108 ; affirmed on this point, 1 H. of L. Ca. 239 ; 
 and see Coape v. Arnold, 2 Sm. & Gif. 311 ; 4 De Gex, Mac. & Gord. 574.
 
 X8G LEAVIX ON THE LAW OF TRUSTS, ETC. 
 
 had the expression been "heirs of the body/' the estate would probably 
 have been construed an estate tail. (as) 
 
 Of course, daughters as well as sons will be included under " heirs of 
 the body/'(3^) or <' issue /'(z) for they equally answer the description, 
 and are equally objects of bounty; and the settlement will be made 
 upon them in default of sons, as tenants in common in tail, with cross 
 remainders between (or amongst) them. (a) 
 
 In executing a strict settlement the court, before the 8 & 9 Yict. c. 
 106 always took care that proper limitations to trustees should be inserted 
 after the life estates for the preservation of contingent remainders ;(6) 
 and, although by the effect of the act last referred to, contingent 
 remainders are no longer destructible by the forfeiture, merger, or sur- 
 render of the previous life estate, the limitations to trustees to preserve 
 ought still, it is conceived, to be interposed, as well with the view of 
 affording a convenient means of protecting the interests of contingent 
 remaindermen in the event of wilful waste or destruction being com- 
 mitted by the tenant for life before any remainderman comes in e«.se,(c) 
 as with the view of preserving the protectorship, under the Fines and 
 Recoveries Act, in the event of the destruction of the previous life estate. 
 
 In a case occurring before the Fines and Recoveries Act (3 & 4 W. 
 P^-, r „-, 4, c, 74,) where the testator had shown an anxious *wish that 
 L -1 the power of defeating the entail should be as much restricted 
 as possible, the court, instead of giving the first freehold to the tenant 
 for life, which would have enabled him to make a tenant to the praecipe, 
 ordered the freehold during his life to be vested in trustees in trust for 
 him.(fZ) 
 
 However in a case occurring after the Fines and Recoveries Act where 
 an estate was vested in a trustee upon trust to execute a strict settlement 
 on Lady Le Despencer and her family, and the master, to whom a refer- 
 ence was directed, approved of a settlement on Lady Le Despencer for 
 life, &c., but refused to appoint a ^ro^ec^or under the 32nd section of the 
 act, the court held that, though in certain cases it might be advisable 
 to appoint a protector, there should be special circumstances to warrant 
 it. That the trustee was the " settlor" within the meaning of the 32nd 
 section, and had the power to appoint a protector; and as he did not 
 desire it, the court, unless there were good reasons to the contrary, would 
 not control his discretion ; that a protector under the act was an irres- 
 
 {z) Ashton V. Ashton, cited in Bagshaw v. Spencer, 1 Coll. Jur. 402 ; Meure v. 
 Meure, 2 Atk. 265 ; and see Home v. Barton, Coop. 25; Dodson v. Hay, 3 B. C. C. 
 405; Stonor v. Curwen, 5 Sim. 264; Crozier v. Crozier, 2 Conn. & Laws. 311 ; 
 and see Rochford v. Fitzmaurice, 1 Conn. & Laws. 158; Bastard v. Probj, 2 Cox, 6. 
 
 (y) Bastard v. Proby, 2 Cox, 6. 
 
 (z) Meure v. Meure, 2 Atk. 265; Ashton v. Ashton, cited in Bagshaw v. Spen- 
 cer, 1 Coll. Jur. 402 ; Trevor v. Trevor, 13 Sim. 108. 
 
 (a) ileure v. Meure, Ashton v. Ashton, Bastard v. Proby, and Trevor v. Trevor, 
 ubi supra ; Marryat v. Townley, 1 Ves. sen. 105. 
 
 (6) Harrison v. Naylor, 2 Cox, 247; S. C. 3 B. C. C. 108 ; Woolmore v. Bur- 
 rows, 1 Sim. 512; Baskerville v. Baskerville, 2 Atk. 279; Trevor v. Trevor, 13 
 Atk' 59^ ' ^^^""^^"^^ ^- Sob^^'t' 3 B. P. C. 31 ; and see Hopkins v. Hopkins, 1 
 
 (c) Garth v. Cotton, 1 Ves. 554. 
 
 [d) Woolmore v. Burrows, 1 Sim. 512, see 527.
 
 IN WHAT TERMS A TRUST MAY BE DECLARED. 187 
 
 ponsible person, and was at liberty to act from caprice, ill-will, or any 
 bad motive, and might even take a bribe for consenting to bar the entail, 
 without being amenable to the court, and therefore, on the whole, it was 
 better not to clog the settlement with a protector. (e) 
 
 Where gavelkind lands are the subject of the executory trust, the 
 circumstance of the custom will not prevent the settlement upon the 
 first and other sons successively, for the heirs take not by custom, but 
 under the construction of a court of equity, which must be guided by 
 the rules of the common law.(/) 
 
 In the foregoing cases the court has rectified the will on the ground 
 of the limitations having been imperfectly declared ; but if a testator 
 direct a settlement, and be his own conveyancer, that is, declare the 
 limitations himself, intending them to be final, the hands of the court 
 are bound, and the words must be taken in their natural sense. (^) Thus 
 a testator ^devised to A. for life without impeachment of waste, ^^-. r q-. 
 remainder to trustees to preserve contingent remainders, remain- L J 
 der to the heirs of the body of A., remainders over, and then directed 
 the residue of his personal estate to be laid out in a purchase of lands, 
 and declared that the lands when purchased ''should remain and con- 
 tinue to, for, and upon such and the like estate or estates, uses, trusts, 
 intents, and purposes, and under and subject to the like charges, restric- 
 tions, and limitations, as were by him before limited, and declared of 
 and concerning his lands and premises thereinbefore devised, or as near 
 thereto as might ba, and the deaths of parties would admit." Lord 
 Northington observed, " It is said, that if the limitations had been repeat- 
 ed, it would have been the same with Papillon v. Voice, (2 P. W. 471 ;) 
 but I think not ; because the testator refers no settlement to his trustees 
 to complete, but declares his own uses and trusts, which being declared, 
 I know no instance where the court has proceeded so far as to alter or 
 change them.'Y/t) However, the decision to which his lordship came 
 seems not to have met with the entire approbation of Lord Eldon. {pj 
 
 In the cases relating to executory trusts of chattels in wills, the be- 
 quest, instead of being direct, has generally been by way of reference to 
 a previous strict settlement of realty. 
 
 The law upon this subject was for a long time in a very fluctuating 
 state, as will appear from a review of the cases. 
 
 In Grower v. (xrosvenor,(^) a testator devised his real estate to Sir 
 Thomas Grosvenor for life, with remainder to his first and other sons in 
 tail, and in default of issue to Robert Grosvenor for life, with remainder 
 to his first and other sons in tail, and the testator then proceeded. '' My 
 will and mind is, that my library of books, &c., shall go as heir-looms 
 as far as they can hy law, to the heirs male of my family successively, 
 
 (e) Bankes v. Le Despencer, 11 Sim. 508. 
 
 {/) Roberts v. Dixwell, 1 Atk. 607. 
 
 (g) Franks v. Price, 3 Beav. 182 ; and see Rocliford v. Fitzmaurice, 1 Conn. & 
 Laws. 173; 2 Drur. & War. 21. 
 
 ih) Austen v. Taylor, 1 Ed. 361. 
 
 \i) See Green v. Stephens, 17 Ves. 76 ; Jervoise v. Duke of Northumberland, 1 
 J. & W. 572. 
 
 (A) 5 Madd. 337; Barnardiston. 54.
 
 1§8 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 as my real estate is hereby settled." Sir Thomas died without issue, 
 and the bill was filed by a legatee *of Sir Thomas against Robert 
 [*159] Q^rosvenor, who was the executor of Sir Thomas, and the tenant 
 in possession of the real estate, to have the books, &c., applied as part of 
 Sir Thomas's personal estate. It was argued for the plaintiff that the 
 chattels had vested absolutely in Sir Thomas, inasmuch as he had a son 
 who, as tenant in tail of the real estate, might have claimed the chat- 
 tels absolutely, and that the limitations after the entail, intended for 
 the second son, were void for remoteness ', but Lord Hardwicke held the 
 meanino' of the limitations as regards the chattels on the death of Sir 
 Thomas to be in the alternative, that is, if Sir Thomas should have a 
 son, then such son was to take, but if he should have no son, then to go 
 to Robert for life, with remainder to his first and other sons, so that 
 the limitation to Robert and his son was not in remainder after an entail, 
 but a contingency to be determined on the death of Sir Thomas ; that 
 as the heir-looms were to go as far as they could by law, the testator 
 intended a settlement to be made by the court, and the trust being 
 executory, the proper limitations would be to Sir Thomas for life, with 
 remainder to his first son absolutely : but if he died under 21 without 
 issue, then to the second son in like manner ; and if he had no such son, 
 then to Robert Grosvenor for life, &c. The court, therefore, decided 
 that the chattels had not vested absolutely in Sir Thomas, the tenant for 
 life. The point actually determined, viz., that Sir Thomas did not take 
 absolutely, was clearly right ; but the doctrine laid down by Lord Hard- 
 wicke, that the trust was executory, and that the chattels would be 
 settled in the manner suggested by him, has been much questioned. (?) 
 The direction that chattels shall go along with strictly settled real estate, 
 <'as far as the law will allow," may either mean that the chattels shall 
 be held upon the same trusts as the real estate, so far as the different 
 natures of the two properties will permit, in which case the first tenant 
 in tail of the real estate will be entitled to the personal estate absolutely ; 
 or it may intend, that the court shall make such a settlement of the 
 r*l rm chattels, and insert in it such limitations as will carry *them in the 
 L -I same channel with the real estate, for as long a period as by any 
 device in the law can be effected. In the former construction the testa- 
 tor is said to be his own conveyancer, that is, he has declared the limita- 
 tions himself, and the legal consequence must follow, though it may 
 disappoint the object, by giving the tenant in tail of the real estate the 
 absolute interest in the personal. In the latter construction the ti'ust is 
 executory ; that is, the testator has only expressed the general intention, 
 and has committed to the trustees the duty of giving it effect by inserting 
 the proper limitations in making the settlement. Lord Hardwicke enter- 
 tained the first view, but the latter has been adopted in more recent 
 decisions. 
 
 In Trafford v. Trafford,(??)) a testator devised lands in trust for Sigis- 
 mund for life, remainder to his first and other sons in tail male, remainder 
 to Clement for life, remainder to his first and other sons in tail male, with 
 
 (l) See Countess of Lincoln v. Duke of Newcastle. 12 Ves 228 
 [m) 3 Atk. 34'7.
 
 IN M'HAT TERMS A TRUST MAY BE DECLARED. 1:^,9 
 
 remainders over, and then bequeathed as follows : " 7 devise all my 
 plate, &c., to such male person (when he shall attain the age of 21 
 years) who shall then be entitled to the trust in possession of the real 
 estate ; and / direct that till such male person shall attain 21, the said 
 plate, &c., shall be kept on D., and be used by such male person residing 
 there : and / declare it to be my express wish and desire that the said 
 plate, &c., may, in the nature of /teiV-fooms, go with the said estate, and 
 be used therewith, as long as the law of the realm will permit." Sigis- 
 mund died without issue. Clement died, and the bill was filed by his 
 eldest son, then an infant, to have the heir-looms delivered to him, which 
 the executrix of Sigismund resisted, on the ground that Sigismund, who 
 was under 21 at the date of the will, had afterwards, on attaining that age, 
 become absolutely entitled. Lord Hardwicke declared that the plaintiff, on 
 attaining 21, would take the property of the heir- looms, and in the mean 
 time was entitled to the use. The first observation that occurs is, that 
 as the limitation of the heir-looms, was not to such son of the tenants for 
 life, hut to such male person as should attain 21, a century might r:{:-|Q-i-i 
 *occur, through successive infancies, before the heir-looms would L J 
 be vested. The legality of the direction might therefore have been 
 questioned in limine.{ii) However, to pass by this point, which was 
 overlooked by the court, the case is remarkable, as the only instance in 
 which, under a will, the court has inserted a limitation over on the death 
 of the tenant in tail under 21. Possibly Lord Hardwicke might have 
 executed the trust in this manner, in pursuance of the general principles 
 laid down by him in Grower v. Glrosvenor ; but Lord Eldon has justly 
 observed(o) that in Trafford v. TraflFord, the testator himself had express- 
 ly said that the property should not vest until that age. The case, 
 therefore, has been regarded by subsequent judges as resting upon its 
 own special circumstances, and not as an authority for the insertion of 
 such a limitation in ordinary cases. 
 
 In Foley v. Burnell,(p) a testator bequeathed all the standards, fix- 
 tures, &c., " to be held and enjoyed by the several persons who, from 
 time to time, should respectively and successively be entitled to the use 
 and possession of the houses before devised by him in strict settlement, 
 as and in the nature of heir-looms, to be annexed to and go along with 
 such houses respectively," and then added, " it is my will and intention, 
 that one of the services of plate should go to and be enjoyed by the pos- 
 sessor of W., and the other by the possessor of 8. for the time being." 
 Edward Foley was first tenant for life of the real estate, and the heir- 
 looms were taken by the sheriff" under an execution against E. Foley, and 
 the bill was filed by the first remainderman in tail to have the heir-looms 
 restored. Lord Thurlow,in looking over the evidence, discovered that a 
 son had been born to E, Foley, which son had died a few days after birth, 
 and so dismissed the bill, on the ground that the absolute interest had 
 
 (h) See Lord Southampton v. Marquis of Hertford, 2 Yes. & Be. 54 ; The Coun- 
 tess of Lincohi v. Duke of Newcastle, 12 Ves. 231 ; Ibbetson v. Ibbetson, 5 Myl. 
 & Cr. 26. 
 
 (o) See Countess of Lincoln v. Duke of Newcastle, 12 Ves. 231 ; and see ob- 
 servations of Lord St. Leonards, in Potts v. Potts, 3 Jones & Lat. 353. 
 
 (jo) 1 B. C. C. 214. 
 
 Febru.ary, 1858.— 13
 
 190 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 vested in E. Foley, as administrator of his deceased cliild. From this 
 decision the plaintiffs appealed to the lords commissioners, and the ques- 
 tion was, whether the absolute interest had vested in the *child 
 [*162] gjjjgQiujely, or whether the court ought not, as the trust was exe- 
 cutory, to have inserted a limitation over to the remainderman on the 
 death of the child under 21. Lord Loughborough said there was no 
 rule of law against the latter construction, if the intention sufficiently 
 appeared ; but that the court would not act upon mere conjecture. Lord 
 Commissioner Ashurst was of opinion that the testator had been his own 
 conveyancer, and had declared his own limitations. Lord Commissioner 
 Hotham concurred, and the bill was dismissed. An appeal was carried 
 to the house of lords,(^) when the decree of the lords commissioners 
 was affirmed. This case, if it stood alone, might have been distinguished 
 from Grower v. Grovesnor, as in the latter the will was merely directory, 
 while in Foley v. Burnell there was a direct bequest of the heir-looms : 
 so that in the former case the trust was executory, while in the latter it was 
 a trust executed. However, this distinction has not been observed in 
 more recent cases. 
 
 In Vaughan v. Burslem,(;-) the testator said, " I direct that all my 
 plate, &c., shall go as heir-looms, with my real estate, and be held and 
 enjoyed by the person or persons that shall, for the time being, by virtue 
 of my will, be entitled to my real estate, as far as the rules of laic and 
 equiti/ will permit." Lord Thurlow considered the words ''as far as the 
 rules of law and equity will permit" to refer only to the known rule that 
 the personal property could not go as far as the real, and that there was 
 no case where the settlement had been carried to the utmost extent of 
 what the law might do. That the words were not sufficient to prevent 
 the vesting of the absolute interest in the first tenant in tail, and the 
 bill which was filed by a remainderman, on the supposition that the heir- 
 looms had not vested absolutely in a prior tenant in tail who had died an 
 infant, was dismissed. Here, if in any case, the trust was executory; and 
 yet, notwithstanding the words, " that the plate, &c., should go as heir- 
 looms," and "as far as the rules of law and equity would permit," the 
 court held the property to vest absolutely in the first tenant in tail, though 
 he did not attain 21. 
 
 r*i po-i *Other decisions to the same efi"ect have since followed,(s) and 
 L J Gower v. Grosvenor, and TrafFord v. Trafford, may be considered 
 as overruled. The law at the present day appears to be, that where a 
 testator devises lauds in strict settlement, and then bequeaths heir-looms 
 to be held by or in trust for the parties entitled under the limitations of 
 the real estate, or without making any bequest, directs or expresses a 
 desire that the heir-looms shall be held upon the like trusts, even though 
 the testator should add the words « as far as the rules of law and equity 
 will permit," the use of the heir-looms will belong to the tenant for life of 
 
 (9) 4 Brown's P. C. 328. (;•) 3 b. C. C. 101. 
 
 (g) Carr v. Errol, 14 Ves. 478 ; Lord Deerhurst v. Duke of St. Albans. 5 Madd. 
 232; Stratford v. Powell, 1 B. & B. 1 ; Rowland v. Morgan, 6 Hare, 463 '; S. C. on 
 appeal 2 Phill. 764; and see Countess of Lincoln v. Duke of Newcastle. 12 Ves. 
 21 < ; Doncaster v. Doncaster. 3 K. & J. 2G.
 
 IN WHAT TERMS A TRUST MAY BE DECLARED. 191 
 
 tlie real estate for his life only, and the property of the heir-looms will 
 vest absolutely in the first tenant in tail immediately on hi« birth, though 
 he afterwards die an infant. The court, in these cases, either regards 
 the trust as executed, and not of a directory character, or if the trust be 
 executory, the court considers it has no authority in making a settlement 
 to insert a limitation over on the tenant in tail dying under 21. How- 
 ever, there is no unlawfulness in such a limitation, so that if a bequest 
 of heir-looms in a will be clearly executory, and the testator manifests 
 a distinct and unequivocal intention that a settlement shall be made of 
 the heir-looms, and that such clauses shall be inserted as will render them 
 inalienable for as long a period as the law will permit, the court would 
 probably execute the intention by settling the heir-looms, and inserting 
 a limitation, by which the absolute interest in the first tenant in tail 
 should, by his death under 21, be carried over, as in the Countess of 
 Lincoln v. Duke of Newcastle, a case of marriage articles, to the persou 
 next entitled in remainder.(?) 
 
 Again, in wills, if the words taken in their usual sense would create a 
 joint-tenancy, the court has no authority, as it has in articles, to execute 
 the trust by giving a tenancy in common ; *but where the testator p^, p , -, 
 has shown a desire of providing for his children, (i«) or putting L J 
 himself in loco parentis for his grand-children, (r) the court has adopted 
 the same construction, as in articles : however, in the cases which have 
 occurred, there has always been some accompanying circumstance to de- 
 note a tenancy in common, as the estate really intended. 
 
 Executory trusts in j^ost-nvptial settlements, whether voluntary or 
 founded on a valuable consideration-, will be construed in the same man- 
 ner as executory trusts in wills. (ic) 
 
 We shall conclude this branch of our subject with a few observations 
 upon the powers to be introduced in the execution of settlements, where 
 the trust is executory. 
 
 If the testator or contracting parties give no directions as to the inser- 
 tion of powers, the court cannot, upon the ground of implied intention, 
 order a power to be introduced,(.r) except possibly a power of leasinr/, 
 which differs from all other powers in being an almost necessary adjunct 
 for the preservation of the estate itself.(^) If the authority be express- 
 ed in general terms, as " to insert all usual powers,'' the trustees may then 
 introduce powers of leasing for 21 years,(2) of sale and exchange,(a) of 
 
 (t) See the observations of Lord Loughborough in Foley v. Burnell, 1 B. C. C. 
 284, and of Lord Thurlow in Vaughan v. Burslem, 3 B. C. C. p. 106. 
 
 (m) Marryat v. Townley, 1 Ves. 102. (v) Synge v. Hales, 2 B. & B. 499. 
 
 (w) Rochford v. Fitzmaurice, 1 Conn. & Laws. 158. 
 
 (a;) Wheate v. Hall, 17 Ves. 80, see 85 ; and see Brewster v. Angell, 1 J. & "\V. 
 628. In a recent case, however, where a will had simply directed a settlement 
 without authorizing any powers expressly, the M. B. held a tacit intention to be 
 implied that powers of leasing, sale and exchange, and appointment of new trus- 
 tees, and of signing receipts, with provisions for maintenance, education, and ad- 
 vancement, should be inserted. Turner v. Sargent, 17 Beav. 515. 
 
 (y) See Fearne's P. W. 310; Woolmore t. Burrows, 1 Sim. 518. 
 
 (z) See Hill v. Hill, 6 Sim. 144 ; The Duke of Bedford v. The Marquis of Aber- 
 corn, 1 Myl. & Cr. 312. 
 
 (a) Hill V. Hill, 6 Sim. 136 ; Peake v. Penlington, 2 V. & B. 311 : and see Wil- 
 liams V. Carter, Append, to Treat, of Powers, No. 5.
 
 192 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 varying securities by investing in government or real securities,(&) and 
 of appointment of new trustees ;(c) and, it seems, where the property is 
 joint, or contains mines, or is fit for building, they may also insert powers 
 ^ of partition, of ^leasing mines, and of granting building leases. (c?) 
 [*165] <<]3^^j. jj^gi-e is a palpable distinction," said Sir Launeelot Shad- 
 well <' between powers for the management and better enjoyment of the 
 settled estate, as powers of leasing, of sale and exchange, &c., which are 
 beneficial to all parties, and powers which confer personal privileges on 
 particular parties, such as powers to jointure, to charge portions to raise 
 money for any particular purpose, &c."(e) The latter, therefore, may 
 not be introduced under a direction to insert imial powers, for they have 
 the effect of diminishing the corpus of the settled estate, and the court 
 has no rule by which to determine the quantum of the charge. (/) And 
 if the will or articles direct the insertion of some particular powers by 
 name, then, as expressio unius excluaw alterius, the meaning of the words 
 << usual powers" will be materially qualified. Thus where it was stipu- 
 lated that the settlement should contain a power of leasing for 21 years 
 in possession, a power of sale and exchange, of appointment of new trus- 
 tees, and other tisual jwwers, it was held that a power of granting build- 
 ing leases could not be inserted. (^) So, if the trustees be authorized to 
 insert a power of sale and exchange of estates in the county of Hereford, 
 and all other umal poivcrs, they would not be justified in extending the 
 power of sale and exchange to estates lying in a different county. (7i) And 
 where a testator directed that the settlement should contain all proper 
 powers for making leases, and otlierioisc according to circumstances, and 
 that provision should also be made for.the appointment of new trustees, and 
 the court was asked to insert a power of sale and exchange, Lord Eldon said, 
 " It was held by Sir W. Grant, that unless the insertion of a power were 
 authorized by the direction to make a settlement, it could not be introduced 3 
 and if, where nothing is expressed, nothing can be implied, it is impossible, 
 where something is expressed, I can imply more than is expressed ; and 
 r*1fifin particularly where the will notices what powers are to be given. "(i) 
 L J But *where a testator directed the insertion of powers of leasing, 
 and sale or exchange, or partition, and then added, '< And my will is, that 
 in such intended settlement shall be inserted all .such other proper and 
 reasonable powers as are usually inserted in settlements of the like na- 
 ture," and the question was raised, whether, under these words, a power 
 of appointment of new trustees might be introduced, Lord Cottenham, 
 then M. R., said, "He had referred to the will, and as he found that 
 those general words were in a separate and distinct sentence, he was of 
 opinion they would authorize the insertion of the power."(^) 
 
 (6) Sampayo v. Gould, 12 Sim. 42G. 
 
 (c) Lindow v. Fleetwood, 6 Sim. 152 ; Brewster v. Angell, 1 J. & W. 628, per 
 Lord Eldon ; Sampayo v. Gould, 12 Sim. 426. 
 
 {d) See Hill v. Hifl, 6 Sim. 145 ; The Duke of Bedford v. The Marquis of Aber- 
 corn, 1 Myl. & Cr. 312. (g) HUl y. Hill, 6 Sim. 144. 
 
 (/) Higgmson v. Barneby, 2 S. & S. 516, see 518. 
 
 [g) Pearse v. Baron, Jac. 158. 
 
 (h) Hill V. Hill, 6 Sim. 141, per Sir L. Shadwell. 
 
 (0 Brewster v. Angell, 1 J. & W. 625 ; and see Home v. Barton, Jac. 439. 
 
 (*j Lmdow T. Fleetwood, 6 Sim. 152.
 
 IN WHAT TERMS A TRUST MAY BE DECLARED. 193 
 
 A testator had directed the insertion of proper powers for making 
 leases or otherwise to be reserved to the tenants for life, while qualified 
 to exercise them, and, whenever disqualified, to the trusteea. In the 
 execution of the settlement, a power of sale and exchange was introduced, 
 and was limited to the trustees with the consent of the tenant for life ; but 
 it was held by Lord Eldon, that the insertion of the power in that mode 
 was not in conformity with the instructions. (/) It was afterwards debated 
 before Sir T. Plumer, whether a power of sale and exchange could in any 
 form, be admitted ; when his honor said, " The first point to be considered 
 is, in whom the powers are to be vested ; and it is clear that they are to 
 be given to the tenants for life, if qualified, and if they should not be 
 able to act, to the trustees. — Now, if the power of sale and exchange is 
 to be given to the tenant for life without check or control, I cannot say 
 that it is a proper power ; on the contrary, it may be very dangerous, as 
 the tenant for life may, for many reasons, be induced to sell, when it may 
 not be for the benefit of the remaindermen ; nor is it usual to give him 
 this power without the check of requiring the assent of the trustees. 
 Take it the other way : if the tenant for life is disqualified, as by infancy, 
 can the court say it is a proper power to be given exclusively to the 
 trustees?" And therefore his honor thought the power of sale and 
 exchange could not be introduced, (m) 
 
 If a settlement of stock with a power of varying securities r:}:-i ey-i 
 ^contain a covenant to settle real estate upon the like trusts, and L J 
 with the like powers, a power of sale and exchange is implied as corre- 
 sponding with the power of vari/ing securities. (ii') Trusts are often 
 created by words of reference to other trusts, and where this is the case, 
 care should be taken to insert a proviso where such is the intention, that 
 charges on the estate shall not be increased or multiplied. Should the 
 clause, however, be omitted, the court will exercise its judgment on the 
 question whether the duplication of charges was or not intended by the 
 parties, (o) 
 
 SECTION II. 
 
 OP IMPLIED TRUSTS. 
 
 Wherever a person, having a power of disposition over property, 
 manifests any intention with respect to it in favour of another, the court, 
 lohere there is sufficient consideration, or in a will ivhere consideration is 
 implied, will execute that intention, through the medium of a trust, 
 however informal the language in which it happens to be expressed. 
 
 A frequent case of implied trust arises where a testator employs words 
 precatory, or recommendatory , or expressing a belief (^2^) Thus if he 
 
 (I) Brewster v. Angell, 1 J. & W. 625. 
 (in) Home v. Barton, Jac. 43T. 
 
 (w) Williams v. Carter, 2 Sug. Pow. G35 ; and see Home v. Barton, Jac. 440. 
 (o) Hindle v. Taylor, 5 De Gex, Mac. & Gord. 577. 
 
 (p) Gary v. Gary, 2 Sch. & Lef. 189, per Lord Redesdale ; Paul v. Compton, 8 
 Yes. 380, per Lord Eldon.
 
 194 
 
 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 ^ '[x) "authorise and empower,"(^) "recommend," (2) 
 :hope/'(a) "do not doubt,"(&) "be well assured,"(c) " confide," (cZ) 
 "have the fullest confidence,"(e) "trust and confide,"(/) " have full 
 assurance and confident hope,"(^) "well know,"(A) or use such expressions 
 as " of course the legatee will give,"(i) " in consideration the legatee 
 has promised to give,"(7i:) &c. In these and similar cases, the intention 
 of the testator is considered imperative, and the devisee or legatee is 
 bound, and may be compelled to give efi'ect to the injunction. 
 
 But such a construction will not in general prevail where either the 
 objects intended to be benefited are imperfectly described,(^) or the 
 
 (q) Harding V. Glyn, 1 Atk. 469 ; Mason v. Lirabury, cited Vernon v. "Vernon, 
 Amb. 4; Trot v. Vernon, 8 Vin. 72 ; Pushman v. Filliter, 3 Ves. 7 ; Brest v. Offley, 
 1 Ch Rep. 246 ; Gary v. Gary, 2 Sch. & Lef. 189 ; Cruwj-s v. Golman, 9 Ves. 319 ; 
 and see Shaw v. Lawless, L. & G. 154; S. G. 5 CI. & Fin. 129; S. C. LI. & G. 
 temp. Plunkett, 559. 
 
 (r) Eales v. England, Pr. Ch. 200 ; Glowdsly v. Pellham, 1 Vern. 411. 
 
 (s) Pierson v. Garnet, 2 B. C. G. 38 ; S. G. affirmed, Id. 226 ; Bade v. Bade, 5 
 Mad. 118 ; Moriarty v. Martin, 3 Ir. Ch. Rep. 26. 
 
 (t) Birch V. Wade, 3 V. & B. 198 : Forbes v. Ball, 3 Mer. 437. 
 
 (w) Foley v. Parry, 5 Sim. 138 ; affirmed, 2 M. & K. 138. 
 
 (v) Prevost v. Clarke, 2 Mad. 458 ; Meredith v. Heneage, 1 Sim. 553, 555, per 
 Chief Baron Wood; and see Taylor v. George, 2 V. & B. 378. 
 
 (w) Meredith v. Heneage, 1 Sim. 553, per Chief Baron Wood. 
 
 [x) Gary v. Gary, 2 Sch. & Lef. 189 ; White v. Briggs, 2 PhilL 583. 
 
 (y) Brown v. Higgs, 4 Ves. 708 ; 5 id. 495 ; affirmed, 8 Ves. 561 ; and in D. P. 
 18 Ves. 192. 
 
 (z) Tibbits v. Tibbits, Jac. 317 ; S. C. affirmed, 19 Ves. 656 ; Horwood v. West, 
 
 1 S. & S. 387 ; Paul v. Gompton, 8 Ves. 380, per Lord Eldon ; Malim v. Keighley, 
 
 2 Ves. jun. 333 ; S. G. lb. 529 ; Malim v. Barker, 3 Ves. 150 ; Meredith v. Heneage, 
 1 Sim. 553, per Chief Baron Wood; Kingston v. Lorton, 2 Hog. 16G; Gholmon- 
 deley v. Gholmondeley, 14 Sim. 590 ; Hart v. Tribe, 18 Beav. 215 ; and see Meg- 
 gison V. Moore, 2 Ves. jun. 630 ; Sale v. Moore, 1 Sim. 534 ; Ex parte Payne, 2 Y. 
 & C. 636 ; Randal v. Hearle, 1 Anst. 124. As to Cunliffe v. CunliflFe (Amb. 686), 
 see Pierson v. Garnet, 2 B. G. C. 46; Malim v. Keighley, 2 Ves. jun. 532; Push- 
 man V. Filliter, 3 Ves. 9. 
 
 (a) Harland v. Trigg, 1 B. C. G. 142 ; and see Paul v. Gompton, 8 Ves. 380. 
 
 (b) Parsons v. Baker, 18 Ves. 476; Taylor v. George, 2 V. & B. 378 ; Malone 
 V. O'Connor, Lloyd & Goold. temp. Plunkett, 4G5 ; and see Sale v. Moore, 1 Sim. 534. 
 
 (c) Macey v. Shurmer, 1 A.tk. 389 ; S. G. Amb. 520. See Ray v. Adams, 3 M. 
 & K. 237. 
 
 (d) Griffiths v. Evans, 5 Beav. 241. 
 
 (e) See Wright v. Atkyns, 17 Ves. 255, 19 Ves. 299, Coop. Ill, 1 T. & R. 143 ; 
 Webb V. Wools, 2 Sim. N. S. 267 ; Palmer v. Simmonds, 2 Drewry, 225; Barnes 
 V. Grant, 2 Jur. N. S. 1127. 
 
 (/) Wood V. Cox, 1 Keen, 317 ; S. C. 2 M. & G. 684 ; Pilkington v. Boughey, 
 12 Sim. 114. 
 
 (g) Macnab v. Whitbread, 17 Beav. 299. 
 
 (h) Bardswell v. Bardswell, 9 Sim. 323 ; Nowlan v. Nelligan, 1 B. G. G. 489 ; 
 Briggs V. Penny, 3 Mac. & Gord. 546, 3 De G. & Sm. 525. 
 
 (i) Robinson v. Smith, 6 Mad. 194; but see Lechmere v. Lavie, 2 M. & K. 197; 
 and see Leach v. Leach, 13 Sim. 304. 
 
 (k) Clifton V. Lombe, Amb. 519. 
 
 (0 Harland v. Trigg, 1 B. C. C. 142 ; Tibbitts v. Tibbitts, 19 Ves. 664, per Lord 
 ^Idon ; Richardson v. Chapman, 1 Burn's Eccles. Law, 245 ; Pierson v. Garnet, 2 
 B. 0. C. 45, per Lord Kenyon, S. C. id. 230, per Lord Thurlow ; Knight v. Knight, 
 3 lieav. 173, per Lord Langdale ; Sale v. Moore, 1 Sim. 534; Gary v. Gary, 2 Sch.
 
 IN WHAT TERMS A TRUST MAY BE DECLARED. 195 
 
 amount of the property to whicli the trust *should attach is not p:^-.,.Q-, 
 sufl&ciently defined ;(?«) for the difficulty that would attend the L J 
 execution of such imperfect trusts is converted by the court into an argu- 
 ment that no trust was really intended :(?i) but although vagueness in the 
 object will unquestionably furnish reason for holding that no trust was 
 intended, this may be countervailed by other considerations ; and if it 
 appear clearly that a trust was intended, though the objects are not suffi- 
 ciently defined, there will be a resulting trust for the benefit of the heir- 
 at-law, or next of kin, according to the nature of the property.(o) The 
 rule as laid down by Lord Alvanley and since recognised as the correct 
 principle was this, "Wherever a testator points out the objects, the pro- 
 perty, and the loay in whicli it shall go, that creates a trust unless there 
 are plain express words or necessary implication that he does not mean 
 to take away the discretion, but intends to leave it to be defeated. (p) 
 
 The objects have been held to be uncertain where personal estate has 
 been given to A., with a hope "that he would continue it in the 
 family ;"{q) but, as regards personal estate, the word family has been 
 sometimes construed as equivalent to relations, that is next of kin ;(r) 
 and where freeholds were so devised, it was held that by " family" was 
 to be understood *the worthiest member of it, viz. the heir-at- r^^i^A-, 
 law.(.s) Even in freeholds, however, the designation was held to L J 
 be too uncertain where the request was to distribute " amongst such 
 members of the person's family" as he should think most deserving. (A 
 In another case both real and personal estate were blended together, and 
 given to A., in full confidence that she would devise the whole of the 
 estate to " such of the heirs of the testator's father as she might think 
 best deserved a preference," and the court could not determine whether 
 heirs were intended, or next of kin, or both.(«J Again, a residuary 
 
 & Lef. 189, per Lord Redesdale ; Meredith v. Heneage, 1 Sim. 542, see 558, 559, 
 565 ; Ex parte Payne, 2 Y. & C. 636. 
 
 (m) Lechmere v. Lavie, 2 M. & K. 197 ; Knight v. Knight, 3 Beav. 148 ; Mere- 
 dith V. Heneage, 1 Sim. 556 ; Buggins v. Yates, 9 Mod. 122 ; Sale v. Moore, 1 Sim. 
 534; Anon, case, 8 Vin. 72; Tibbits v. Tibbits, 19 Ves. 664, per Lord Eldon ; 
 Wynne v. Hawkins, 1 B. 0. G. 179; Pierson v. Garnet, 2 B. G. G. 45, per Lord 
 Kenyon ; S. G. lb. 230, per Lord Thurlow ; Bland v. Bland, 2 Cox, 349 ; Le Maitre 
 v. Bannister, cited in note to Bales v. England, Pr. Gh. 200 ; Sprange v. Barnard, 
 2 B. C. G. 585 ; Pushman v. Filliter, 3 Ves. 7 ; Attorney-General v. Hall, Fitzg. 
 314 ; Wilson v. Major, 11 Ves. 205 ; Bade v. Bade, 5 Mad. 118 ; Gurtis v. Rippon, 
 5 Mad. 434 ; Russell v. Jackson, 10 Hare, 213. 
 
 (n) Morice v. Bishop of Durham, 10 Ves. 536, per Lord Eldon. 
 
 (0) Briggs V. Penny, 3 Mac. & Gor. 546. 
 
 (jo) Malim v. Keighley, 2 Ves. jun. 335. See Knight v. Boughton, 11 CI. & 
 Fin. 548, 551. 
 
 (q) Harland v. Trigg, 1 B. G. C. 142. See Wright v. Atkyns, Coop. 121; 
 Woods V. Woods, 1 M. & C. 401 ; Re Parkinson's Trust, 1 Sim. N. S. 242 ; Wil- 
 liams V. Williams, 1 Sim. N. S. 321 ; but see White v. Briggs, 2 Phill. 583 ; and 
 Liley v. Hey, 1 Hare, 580. (/•) Cruwys v. Colman, 9 Ves. 319. 
 
 (s) Atkyns v. Wright, 17 Ves. 255; S. G. 19 Ves. 299; S. G. Coop. Ill ; and 
 see S. C. 1 Turn. & Russ. 143 ; Malone v. O'Connor, Lloyd & Goold. temp. Plun- 
 kett, 465 ; Griffiths v. Evans, 5 Beav. 241 ; White v. Briggs, 2 Phill. 583 ; Green 
 V. Marsden, 1 Drewry, 646. 
 
 (t) Green v. Marsden, 1 Drewry, 646. 
 
 (u) Meredith v. Heneage, 1 Sim. 542, see 558, 559, 565 ; but see Wright v. At- 
 kyns, Coop. 119.
 
 196 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 estate was bequeathed to A., with a recommendation that she would 
 « consider the testator's relations." Sir A. Hart asked, "Who are the 
 objects of the trust ? Did the testator mean relations at his own death, 
 or at A's death ? Did he mean that she should have the liberty of exe- 
 cuting the trust the day after his death V And his honor was of opinion 
 that no trust could attach. (y) But there can be no uncertainty of the 
 objects where such a trust is to be executed by will, for then those who 
 answer the description at the death of the donee of the power must be 
 the parties contemplated. (m^) 
 
 The court has refused to establish the trust from the uncertainty of 
 the snhject, that is, of the property intended to be bound by the trust, 
 where the recommendation has been to << consider certain persons,"(x) 
 '< to be kind to them,"(^_y) to "remember them, "(2) "to do justice to 
 P^, ^,-, them,"(a) " to make *ample provision for them, "(6) " to use the 
 L J property for herself and her children, and to remember the church 
 of God, and the poor,'Vc) " to give what should remain at his death, or what 
 he should die seised or possessed of," (fZ) " to finally appropriate as he 
 pleases," with a recommendation to divide amongst certain persons,(e) to 
 divide and dispose of the savings,(/) or the bulk of the property,((7) or 
 wherever the donee of the property has had power to dispose of any part he 
 pleased, whether expressly given him, or arising from implication, or from 
 the nature of the subject. (A) But where the recommendation was, that the 
 legatee, in ease she married again, should settle what she possessed under 
 the testator's will to her separate use, and should bequeath what she 
 should die possessed of under the will in favour of certain persons, it was 
 held that the iclwle personal estate was overreached by the trust. Sir 
 John Leach said, " the testator directs, that upon a marriage, whenever 
 a second marriage may happen, the whole of the property shall be secured, 
 and a power to dispose of any part of the property absolutely, at any time 
 during her life, is not to be reconciled to that provision. I must there- 
 fore consider that, when he recommends her to give what she shall die 
 
 {v) Sale V. Moore, 1 Sim. 534, see 540 ; and see Macnab v. Whitbread, 17 Beav. 
 299; but see Wright v. Atkyns, Coop. 119-123. 
 
 (w) Pierson v. Garnet, 2 B. C. C. 38; S. C. id. 226; Atkyns v. Wright, U Ves. 
 255; S. C. 19 Ves. 299; S. C. Coop. Ill; and see S. C. 1 Turn. & Russ. 162 ; 
 Knight V. Knight, 3 Beav. 173 ; Meredith v. Heneage, 1 Sim. 558. 
 
 (z) Sale V. Moore, 1 Sim. 534 ; and see Hoy v. Master, 6 Sim. 568. 
 
 (y) Buggins v. Yates, 9 Mod. 122. 
 
 [z) Bardswell v. Bardswell, 9 Sim. 319. 
 
 (a) Le Maitre v. Bannister, Pr. Ch. 200, note (1) ; Pope v. Pope, 10 Sim. 1. 
 
 (6) Winch v. Brutton, 14 Sim. 379. 
 
 (c) Curtis V. Rippoc, 5 Mad. 434. 
 
 (rf) Sprange v. Barnard, 2 B. C. C. 585 ; Green v. Marsden, 1 Drewry, 646; 
 Pushman v. Pilliter, 3 Ves. 7; Wilson v. Major, 11 Ves. 205; Bade v. Bade, 5 
 Mad. 118 ; Wynne v. Hawkins, 1 B. C. C. 179; Lechmere v. Lavie, 2 M. & K. 197; 
 Bland V. Bland, 2 Cox, 349 ; Attorney-General v. Hall, Fitzg. 314 ; and see Mere- 
 dith V. Heneage, 1 Sim. 556 ; Tibbits v. Tibbits, 19 Ves. 664 ; Pope v. Pope, 10 
 Sim. 1. > ! I 1 . 
 
 («) White V. Briggs, 15 Sim. 33. (/) Cowman v. Harrison, 10 Hare, 234. 
 
 (,9) Palmer V. Simmonds, 2 Drewry, 221. 
 
 (A) Malim v. Keighley, 2 Ves. jun. 531, per Lord Loughborough ; and see Knight 
 v^ Knight, 3 Beav. 174 ; 11 CI. & Fin. 513 ; Huskisson v. Bridge, 4 De Gex & Sm.
 
 IN WHAT TERMS A TRUST MAY BE DECLARED. I97 
 
 possessed of, lie had in view tlie whole property whicli she should possess 
 under his will."(t) 
 
 And where both objects and property are certain, yet no trust will 
 arise, if the testator expressly declares that the language is not to be 
 deemed imperative, or the construing it a trust would be a contradiction 
 to the terms in which the preceding bequest is given, (y) or if, all cir- 
 cumstances considered, *it is more probable the testator meant ^^-. „p-, 
 to communicate a mere discretion -Jk") as if he at the same time L "^J 
 declare that the estate shall be "unfettered and uulimited,"(/) or if he 
 "recommend but do not absolutely enjoin, "(m) or if the gift be abso- 
 lutely to A., with words expressing merely the rea>ion or motive with 
 which the gift is made, as " to enable him to assist such of the children 
 of B. as he shall find deserving of encouragement.'7«) The construc- 
 tion of the words we are considering never turns on their grammatical 
 import, they may be imperative, but are not necessarily so.(o) In Shaw 
 V. Lawless,(jj) the trustees were recommended to employ a receiver, 
 and Lord Cottenham, alluding to that case, observed, "It was there laid 
 down as a rule which I have since acted upon, that though ' recommen- 
 dation' may in some other cases amount to a direction and create a trust, 
 yet, that being 2, flexible term, if such a construction of it be incon- 
 sistent with any positive provision in the will, it is to be considered as a 
 recommendation and nothing more. In that case the interest supposed 
 to be given to the party recommended wasinconsisteut with other powers 
 which the trustees were to exercise, and those powers being given in 
 unambiguous terms, it was held that as the two provisions could not 
 stand together, the flexible term was to give way to the inflexible 
 term. "(2) 
 
 And if a trust be created, it does not follow that it shall be equally 
 restrictive, as where the trust is properly such. Thus an estate was 
 devised to A. and her heirs, " in the fullest confidence" that after her 
 decease she would devise the property to the family of the testator ; and 
 Lord Eldon asked, *" Is there any case in which the doctrine ^^^ -o-i 
 has been carried so far, that the tenant in fee shall not be at L J 
 liberty, with respect timber and mines, to treat the estate in the same 
 husbandlike manner as another tenant in fee ?" and his lordship said he 
 should hesitate a long time before he held that the person bound by the 
 
 {i) Horwood v. West, 1 S. & S. 387. 
 
 (/) Webb V. Wools, 2 Sim. N. S. 267 ; Huskisson v. Bridge, 4 De Gex & Sm. 
 245. 
 
 {k) Bull V. Vardy, 1 Ves. juu. 270 ; Knott v. Cottee, 1 Pliill. 292 ; Knight v. 
 Knight, 3 Bear. 148 ; Meggison v. Moore, 2 Ves. jun. 630 ; Hill \. Bishop of Lon- 
 don, 1 Atk. 618 ; and see Paul v. Compton, 8 Ves. 380; Knight v. Knight, 3 
 Beav. 174, 11 CI. & Fin. 513 ; Lefroy v. Flood, 4 Ir. Ch. Rep. 1. 
 
 {I) Meredith v. Heneage, 1 Sim. 542 ; S. C. 10 Price, 230 ; Hoy v. Master, 6 
 Sim. 568. 
 
 (m) Young y. Martin, 2 Y. & C. Ch. Ca. 582. 
 
 {n) Benson v. Whittam, 5 Sim. 30 ; Thorp v. Owen, 2 Hare, 611. 
 
 (0) Meggison v. Moore, 2 Ves. jun. 632, per Lord Loughborough ; and see 
 Johnston v. Rowlands, 2 De Gex & Sm. 358, per Vice-Chancellor Knight Bruce. 
 
 [p) LL & Goold, t. Sugden, 154; 5 CI. & Fin. 129 ; Lloyd & Goold. t. Plun- 
 kett, 559. 
 
 {q) Knott V. Cottee, 2 Phill. 192.
 
 198 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 trust was not entitled to cut timber in the ordinary management of the 
 property.(r) And so it was afterwards decided by the house of lords 
 
 on appeal. (*•) . ■, j • n 
 
 The current of decisions has of late years set against the doctrine ot 
 converting the devisee or legatee into a trustee.(?) 
 
 Of course, where the words are construed in equity to raise a partial 
 trust, the devisee or legatee is deemed a trustee to the extent only of 
 the charge, and the surplus will not result to the heir or next ofkin, but 
 will belong to the devisee or legatee beneficially. (it) 
 
 But if a trust be established as to the u-Jwh property given, and the 
 objects of the trust for any reason fail, the ichole beneficial interest will 
 be a resulting trust in favour of the testator's real or personal represen- 
 tative, (v) 
 
 Again (to proceed with the instances of implied trusts,) if a person 
 by will direct his realty to be sold, or charge it with debts and legacies,(u-) 
 or with any particular legacy,(a:) the legal estate may descend to the 
 heir, or it may pass to a devisee ; but the court will view the direction 
 as an implied declaration of trust, and will enforce the execution of it 
 against the legal proprietor. 
 
 Again, if a person agrees for valuable consideration to settle 
 [ ■'•''*] *a specific estate, he thereby becomes a trustee of it for the in- 
 tended objects, and all the consequences of a trust will follow;(y) and so 
 if he covenant to charge all lands that he may possess at a particular 
 time,(2) or at any time,(«) he will be a trustee of such lands to the 
 extent of the charge. And even if a person engages on his marriage to 
 settle all the personal estate that he may acquire during the coverture, 
 the trusts upon which it is so agreed the personalty shall be settled will 
 fasten upon the property as it falls into possession ; and if the money 
 has been laid out in a purchase, may be followed into the land.(?/) 
 
 Again, if a person contract to sell another an estate, the vendor has 
 impliedly declared himself a trustee in fee for the purchaser, and is 
 accountable to him for the rents and profits ;(c) and if the tenants have 
 
 (r) See Wright v. Atkyns, Turn. & Russ. 157, 163. 
 
 («) See Lawless v. Shaw, Lloyd & Goold, t. Sugden, 164. 
 
 (t) Sale V. Moore, 1 Sim. 540 ; and see Meredith v. Heneage, id. 566 ; Lawless 
 V. Shaw, 1 Lloyd & Goold, 164; Knight v. Knight, 3 Beav. 148; Williams v. 
 Williams, 1 Sim. N. S. 358 ; Lefroy v. Flood, 4 Ir. Chan. Rep. 9. 
 
 (m) Wood V. Cox, 1 Keen, 317 ; reversed, 2 M. & C. 684. 
 
 (v) Briggs V. Penny, 3 Mac. & Gord. 546, 3 De G. & Sm. 525. 
 
 {iv) Pitt V. Pelham, 2 Freem. 134 ; S. C. 1 Ch. Re. 283 ; Locton v. Locton, 2 
 Freem. 136; Asby v. Doyl, 1 Ch. Cas. 180; Tenant v. Brown, ib.; Garfoot v. 
 Garfoot, 1 Ch. Ca. 35; S. C. 2 Freem. 176; Gwilliams v. Rowel, Hard. 204 ; 
 Blatch V. Wilder, 1 Atk. 420 ; Carvill v. Carvill, 2 Ch. Re. 301 ; Cook v. Foun- 
 tain, 3 Sw. 592 ; Bennet v. Davis, 2 P. W. 318, &c. 
 
 (z) Wigg V. Wigg, 1 Atk. 382. 
 
 (y) Finch V. Winchelsea, 1 P. W. 277 ; Freemoult v. Dedire, ib. 429 ; Kennedy 
 V. Daly, 1 Sch. & Lef. 355 ; Legard v. Hodges, 1 Ves. jun. 477 ; S. C. 3 B. C. C. 
 531, 4 B. C. C. 421 ; Ravenshaw v. Hollier, 7 Sim. 3. 
 (z) Wellesley v. Wellesley, 4 M. & C. 561. 
 
 (a) Lyster v. Burroughs, 1 Drury & Walsh, 149. 
 
 (b) Lewis v. Madocks, 8 Ves. 150 ; S. C. 17 Ves. 48. 
 
 (c) See Acland v. Gaisford, 2 Mad. 32 ; Wilson v. Clapham, 1 J. & W. 38. 
 
 ^
 
 OF RESULTING TRUSTS. 199 
 
 been allowed improperly to run in arrear,(f?) or there lias been unhus- 
 bandlike farming,(c) or any other injury done, either by the wilful waste 
 or neglect of the vendor,(/) he is answerable to the purchaser as for a 
 breach of trust. On the other hand, if any damage arise to the estate, 
 not by the default of the vendor, as by fire,(^) or dilapidations, (A) the 
 loss will fall on the purchaser ; and if the accident by which the damage 
 arises brings with it legal obligations which must be immediately satisfied, 
 and which the vendor satisfies, the expense thus incurred must be borne 
 by the purchaser ;(/) and so, should the estate become by any accident 
 more valuable, the purchaser will take the improvement.(^') It p^TSI 
 *should be observed, however, that the vendor is, after all, a L J 
 trustee sub moclo only, for he cannot be compelled to deliver up the 
 possession until the purchase-money has been paid.(?) And so the piir- 
 cliaser is only a cestui que trust sub moclo, and he cannot enforce any 
 equitable rights attached to the estate until the contract has been com- 
 pleted, (m) 
 
 It would be endless to pursue implied trusts through all their ramifi- 
 cations, but the general principles may be collected from the examples 
 given. 
 
 ♦CHAPTER VIII. [*176] 
 
 OF RESULTING TRUSTS. 
 
 Having discussed the various questions involved in the creation of 
 trusts by the act of a party, we shall next direct our attention to the cre- 
 ation of trusts by operation of law. Trusts of this kind may be regarded 
 as twofold, viz. 1. Resulting, 2. Constructive. 
 
 Resulting Trusts, the subject of the present chapter, may be subdi- 
 vided into the two following classes : First, Where a person being him- 
 self both legally and equitably entitled makes a conveyance, devise, or 
 bequest of the legal estate, and there is no ground for the inference that 
 he meant to dispose of the equitable ; and. Secondly, Where a purchaser 
 of property takes a conveyance of the legal estate in the name of a third 
 person, but there is nothing to indicate an intention of not appropriat- 
 ing to himself the beneficial interest. 
 
 (d) Acland v. Gaisford, 2 Mad. 28. 
 
 (e) Ferguson v. Tadman, 1 Sim. 530 ; Foster v. Deacon, 3 Mad. 394. 
 (/) Wilson V. Clapham, 1 J. & W. 39. 
 
 (g) Paine v. Meller, 6 Ves. 349 ; Harford v. Furrier, 1 Mad. 539, per Sir T. 
 Plumer ; Acland v. Gaisford, 2 Mad. 32, per eundem ; as to Stent v. Bailis, 2 P. 
 W. 220, see Paine v. Meller, 6 Ves. 352. 
 
 [h) Minchin v. Nance, 4 Beav. 332. 
 
 («■) Robertson v. Skelton, 12 Beav. 280. 
 
 {k) See Harford v. Furrier, 1 Mad. 539 ; Revell v. Hussey, 2 B. & B. 287 ; 
 Paine v. Meller, 6 Ves. 352; Spurrier v. Hancock, 4 Ves. 667 ; White v. Nutts, 1 
 P. W. 61. 
 
 {I) See Acland v. Gaisford, 2 Mad. 32 ; Wall v. Bright, 1 J. & W. 494. 
 
 \m) See Tasker v. Small, 3 M. & Cr. 70.
 
 200 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 SECTION I. 
 
 OF RESULTING TRUSTS WHERE THERE IS A DISPOSITION OF THE LEGAL 
 AND NOT OF THE EQUITABLE INTEREST. 
 
 The general rule is, that wherever, upon a conveyance, devise, or be- 
 quest, it appears that the grantee, devisee, or legatee was intended to 
 take the legal estate merely, the equitable interest, or so much of it as 
 is left undisposed of, will result, if arising out of the settlor's realty, 
 to himself, or his heir, or, if out of personal estate, to himself or his 
 executor. 
 
 Should the interest resulting as a remnant of the real estate to the 
 r*l 771 ^^^'^^' ^^ ^^ ^ chattel nature, as a term of years, or a sum *of money, 
 L J it will on the death of the Jieir, devolve on his personal repre- 
 sentative, fa) 
 
 And if real estate charged with debts be sold by the court in the 
 lifetime of the heir, the surplus (as the exact amount required could not 
 be raised) will, from the time of sale, be considered personal estate, and 
 devolve on the heir's personal representative. (i) 
 
 The intention of excluding the person invested with the legal estate 
 from the usufructuary enjoyment, may either he presumed by the court, 
 or be actually exjn-essed upon the instrument. 
 
 Should an estate be granted either without consideration or for merely 
 a nominal one,(c) and no trusts be declared of any part, then if the con- 
 veyance be simply to a stranger "'n blood, and no intention appear of 
 conferring the heneficiul interest, as the law will not suppose a person to 
 part with property without some inducement thereto, it seems a trust of 
 the wlwJe estate (as in the analogous case of uses before the statute of 
 Henry) will result to the settlor.(rZ) 
 
 If the conveyance be to a wife{e) or son{^f) it will be presumed an 
 
 (a) Levet v. Needham, 2 Yern. 138 ; Wych v. Packington, 3 B. P. C. 44 : Se- 
 well V. Denny, 10 Beav. 315 : Barrett v. Buck, 12 Jur. 771. See Halford v. Stains, 
 16 Sim. 288. 
 
 (/;) Flanagan v. Flanagan, cited Fletcher v. Ashburner, 1 B. C. C. 500. 
 
 (c) See Hayes v. Kingdorae, 1 Vern. 33 ; Sculthorpe v. Burgess, 1 Yes. jun. 92. 
 
 {d) Duke of Norfolk v. Browne, Pr. Ch. 80 ; Warman v. Seaman, 2 Freem. 308, 
 per Cur.; Hayes v. Kingdome, 1 Yern. 33 ; Grey v. Grey, 2 Sw. 598, per Lord 
 Nottingham; Elliot v. Elliot, 2 Ch. Ca. 232, per eundem; Attorney- General v. 
 "Wilson, 1 Cr. & Phil. 1 ; and see Sculthorpe v. Burgess, 1 Yes. jun. 92 ; Ladv 
 Tyrrell's case, 2 Freem. 304; Ward v. Lant, Pr. Ch. 182 ; but in Lloyd v. Spillet. 
 2 Atk. 150, and Young v. Peachey, ib. 257, Lord Hardwicke was apparently of 
 opmion that, since the Statute of Frauds, there are only two cases of resulting 
 trust, viz.: 1st, Where an estate is purchased in the name of a stranger; and 
 ^ndly, Where on a voluntary conveyance a trust is declared of part, in which case 
 tlie residue results. It would seem to follow that, in his opinion, should a volun- 
 tary conveyance be made and no trust at all be expressed, the grantee would take 
 tue beneficial interest to his own use ; and see Hutchins v. Lee, 1 Atk. 447. 
 
 W See Christ's Hosp. v. Budgin, 2 Yern. 683. 
 
 (/) Jennings v. Sclleck, 1 Yern. 467 ; Grey v. Grey, 2 Sw. 598, per Lord Not- 
 tmgbara ; Elhot v. Elliot, 2 Ch. Ca. 2Z2, per eundem ; and see Haves v. Kingdorae, 
 i vern. 33; Baylis v. Newton, 2 Yern. 28; Cook v. Hutchinson,'l Keen. 42.
 
 OF RESULTING TRUSTS. 201 
 
 advancement, and the wife or son will be entitled *bcncficially. r^Kj^yg-. 
 In a case where a son conveyed an estate to his father, as purchaser, L J 
 for the sum of 400/., and then filed a bill against the devisees of the 
 father for a re-conveyance, and it appeared from parol evidence which 
 was read de bene esse that no money was ever paid, and that the intention of 
 the parties was, that the son being in bad credit the father should be the 
 ostensible owner of the estate, in order the more readily to rai^e money 
 on mortgage, Sir J. Leach held, that since the Statute of Frauds, parol 
 evidence was inadmissible to prove a trust, and that as there was no fraud 
 or misapprehension, but the meaning was that the father should exercise 
 towards the world at large the beneficial ownership, there was no result- 
 ing or constructive trust, but that the devisees must keep the estate. 
 The court, however, decreed the son as vendor upon the face of the deed 
 to have a lien upon the property for the 400/'. as upon unpaid purchase- 
 money. (^) 
 
 In a similar case of absolute sale upon the face of the deed, but where 
 the grantee afterwards admitted himself in writing to be a trustee, Lord 
 Kenyon held that, the written evidence establishing facts inconsistent 
 with the deed, further evidence by parol was admissible to prove the truth 
 of the transaction. (/<) 
 
 Of course the court will not permit the grantee to retain the beneficial 
 interest if there was any mistake on the part of the granfor,{i) or any 
 mala fides on the part of the granfee.(Jv) But if the grantor himself 
 intended a fraud upon the law, the assurance, if the defendant demurs, 
 will be made absolute against the grantor ■,[!) however, if the defendant 
 admit the trust, it seems the court will relieve. («i) It was said in one 
 case that if a man transfer stock or deliver money to another, r^Ki-rg-i 
 *it must proceed from an intention to benefit that other person, L J 
 and therefore, although he be a stranger, it shallbe^^rmia _/«c/(?agift,(?i) 
 but if such an intention cannot be inferred consistently with the attend- 
 ant circumstances, a trust will result, (o) 
 
 If upon a conveyance, (p) devise,(2) or bequest,(r) a trust be declared 
 
 {g) Leman v, Whitley, 4 Riiss. 423. {h) Cripps v. Jee, 4 B. C. C. 472. 
 
 [i) Birch v. Blagrove, Amb. 264 ; Anon, cited Woodman v. Morrel, 2 Freem. 33 ; 
 and see Attorney-General v. Boulden, 8 Sim. 472. 
 
 {k) Lloyd V. Spillet, 2 Atk. 150 ; S. C. Barn. 388, per Lord Hardwicke ; Hutch- 
 ins V. Lee, 1 Atk. 448, per eundem ; Young v. Peachy, 2 Atk. 254; Wilkinson v. 
 Brayfield, cited ih. 257 ; S. C. reported 2 Vern. 307. 
 
 (l) Cottington v. Fletcher, 2 Atk. 15(3, per Lord Hardwicke; and see Chaplin 
 V. Chaplin, 3 P. W. 233 ; Muckleston v. Brown, 6 Yes. 68. 
 
 {m) See Cottington v.' Fletcher, Muckleston v. Brown, ubi supra. 
 
 (n) George v. Howard, 7 Price, 651-653. 
 
 (o) See Custance v. Cunningham, 13 Beav. 363. 
 
 (p) Cottington v. Fletcher, 2 Atk. 155; Culpepper v. Aston, 2 Ch. Ca. 115; 
 Cook V. Gwavas, cited Roper v. RadclifFe, 9 Mod. 187; Lloyd v. Spillet, 2 Atk. 
 150; S. C. Barn. 388, per Lord Hardwicke. 
 
 {q) Sherrard v. Lord Harborough, Amb. 165 ; Marquis of Townshend v. Bishop 
 of Norwich, cited Saunders on Uses, C. 3, s. 7, div. 3 ; Hobart v. Countess of 
 Sufifolk, 2 Yern. 644 ; Nash v. Smith, 17 Yes. 29; Wych v. Packington, cited Roper 
 V. Radcliffe, 9 Mod. 187 ; Davidson v. Foley, 2 B. C. C. 203 ; Kiricke v. Bransbey, 
 2 Eq. Ca. Ab. 508 ; Levet v. Needham, 2 Yern. 138 ; Halliday v. Hudson, 3 Yes. 
 210 ; Killet v. Killet, 3 Dow. 248; &c. 
 
 (?•) Robinson v. Taylor, 2 B. C. C. 589 ; Mapp v. Elcock, 2 Phill. 793 ; affirmed 
 on appeal. 3 H. of L. Ca. 492 : and sec Dfiwson v. Clarke, 18 Yes. 254.
 
 202 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 of part of the estate, and nothing is said as to the residue, then, dearly. 
 the creation of the partial trust is regarded as the sole object in view, and 
 the equitable interest undisposed of by the settlor results to him or his 
 representative. 
 
 But upon this subject a distinction must be observed between a devise 
 to a person for a particular purpose with no intention of conferring the 
 beneficial interest, and a devise with the view of conferring the beneficial 
 interest, but subject to a particular injunction. Thus, if lands be devised 
 to A. and his heirs iipon trust to pay debts, this is simply the creation of 
 a trust, and the residue will result to the heir ; but if the devise be to 
 A. and his heirs, charged with debts, the intention of the testator is to 
 devise beneficially subject to the charge, and then whatever remains, 
 after the charge has been satisfied, will belong to the devisee. (s) 
 
 No positive rule can be laid down to determine in what cases the devise 
 
 will carry with it a beneficial character, and in what it will be construed 
 
 a trust ; but on all occasions the court, refusing to be governed by the 
 
 „-^ mere technical ^phraseology, extracts the probable intention of 
 
 L -I the settlor from the general scope of the instrument. (A 
 
 The recognition of the relationshijy of the parties has often materially 
 influenced the court against the construction of a mere trust.(^f) Thus, 
 where a testator gave 5?. to his brother, who was his heir-at-law, and 
 <' made and constituted his dearly beloved xoife his sole heiress and exe- 
 cutrix, to sell and dispose thereof at her pleasure, and to pay his debts 
 and legacies ;" Lord King said, the devise that the wife should be sole 
 heiress of the real estate did, in every respect, place her in the stead of 
 the heir, and not as a trustee for him ; that it was plainer by reason of 
 the language of tenderness and afi"ection, " his dearly beloved wife," 
 which must intend to her something beneficial, and not what would be a 
 trouble only; and what made it still stronger was, that the heir was not 
 forgot, but had a legacy of bl. left him ; and so his lordship decreed the 
 devisee to be beneficially entitled. (t) But any allusion of this kind is 
 merely one circumstance of evidence, and therefore to be counteracted by 
 the language of other parts of the instrument.(n') 
 
 Although the introduction of the words "upon trust" may be strong 
 evidence of the intention not to confer on the devisee a beneficial inte- 
 rest,(a?) yet that construction may be negatived by the context, or the 
 general scope of the instrument 3(3/) and, in like manner, the devisee may 
 
 (s) King V. Denison, 1 V. & B. 272, per Lord Eldon. 
 
 {t) Hill V. Bishop of London, 1 Atk. 620, per Lord Hardwicke ; Walton v. Wal- 
 ton, 14 Ves. 322, per Sir W. Grant ; Starkey v. Brooks, 1 P. W. 391, per Lord 
 Cowper; King v. Denison, 1 V. & B. 279, per Lord Eldon. 
 
 Cm) Lloyd v. Spillet, cited Cook v. Duckenfield, 2 Atk. 566 ; Lloyd v. Went- 
 wortb, cited Robinson v. Taylor, 2 B. C. C. 59-4 ; Smith v. King, 16 East, 283 ; 
 Coningham v. Hellish, Pr. Ch. 31 ; Cook v. Hutchinson, 1 Keen, 42. 
 
 (v) Rogers v. Rogers, 3 P. W. 193. 
 
 [w) Buggins V. Yates, 9 Mod. 122 ; Wych v. Packington, 2 Eq. Ca. Ab. 507 : 
 and see King v. Denison, 1 V. & B. 274. 
 
 {x) See Hill v. Bishop of London, 1 Atk. 620 ; Woollett v. Harris, 5 Mad. 452. 
 
 (y) Dawson v. Clarke, 15 Ves. 409; S. C. 18 Ves. 247, see 257 ; Coningham v. 
 496 ^^' ^^ ' ^^^'^ ^' ^^^^'^^^^o^' 1 ^een, 42 ; Hughes v. Evans, 13 Sim.
 
 OF RESULTING TRUSTS. 203 
 
 be designated as " trustee j" but if tbe term be used with reference to 
 one only of two funds, he may still establish his title to the beneficial 
 interest in the other.(z) 
 
 *It must also be observed, that, as the heir is a person favoured r*-| o-i-i 
 in law, he will not be excluded from the resulting trust on bare L J 
 conjecture ;(«) and there must be positive evidence of a benefit intended 
 to the devisee, and not merely negative evidence that no benefit was 
 intended to the heir ; for the trust results to the real representative, not 
 on the ground of intention, but because the ancestor has declared no 
 intention. (i) Thus, a legacy to the heir will not prevent a trust from 
 resulting ;(c) but, joined to other circumstances in favour of the devisee, 
 it will not be without its eSect.(d'j 
 
 It need scarcely be remarked, that, as the species of trust we are now 
 considering results hy presu7nption of law, it may be rebutted by positive 
 evidence by parol, that the testator's intention was to confer the surplus 
 interest beneficially. (e) 
 
 Next, a trust results by operation of law, where the intention not to 
 benefit the grantee, devisee, or legatee, is expressed upon the instrument 
 itself, as if the conveyance, devise, or bequest, be to a person «< upon 
 trust," and no trust is declared,(/) or upon certain trusts that are too 
 vague to be executed,((/) or *upon trusts to be thereafter declared, j-^-. 09-1 
 and no declaration ever made,(/i) or upon trusts that are void for L "'J 
 unlawfulness,(A or that fail by lapse,(^) &c. ; for in such cases the trustee 
 
 (z) Batteley v. Windle, 2 B. C. C. 31 ; Pratt v. Sladden, 14 Yes. 193 ; and see 
 Gibbs V. Rumsey, 2 V. & B. 294. 
 
 (a) Halliday v. Hudson, 3 Ves. 211, per Lord Loiighborovigh ; and see Kellett 
 V. Kellett, 3 Dow. 248 ; Amphlett v. Parke, 2 R. & M. 227 ; Phillips v. Phillips, 1 
 M. & K. 661 ; Salter v. Cavanagh, 1 Dru. & Walsh, 668. 
 
 (6) See Hopkins v. Hopkins, Gas. t. Talb. 44 ; Tregonwell v. Sydenham, 3 Dow. 
 211 ; Lloyd v. Spillet, 2 Atk. 151 ; Habergham v. Vincent, 2 Ves. jun. 225. 
 
 (c) Randall v. Bookey, 2 Vern. 425 ; S. C. Pr. Ch. 162 ; Hopkins v. Hopkins, 
 Cas. t. Talb. 44; Starkey v. Brooks, 1 P. W. 390, overruling North v. Crompton, 
 
 1 Ch. Ca. 196 ; Salter v. Cavanagh, 1 Dru. & Walsh, 668. 
 
 {d) Rogers v. Rogers, 3 P. W. 193 ; S. C. Sel. Ch. Ca. 81 ; and see Docksey v. 
 Docksey, 2 Eq. Ca. Ab. 506 ; King v. Denison, 1 V. & B. 274 ; Amphlett v Parke, 
 
 2 R. & M. 230 ; Mallabar v. Mallabar, Cas. t. Talb. 78. 
 
 (e) Crompton v. North, as cited in Gainsborough v. Gainsborough, 2 Vern. 253 ; 
 Docksey v. Docksey, 2 Eq. Ca. Ab. 506 ; Mallabar v. Mallabar, Cas. t. Talb. 78 ; 
 Cook v. Hutchinson, 1 Keen, 50, per Lord Langdale. 
 
 (/■) Dawson v. Clarke, 18 Yes. 254, per Lord Eldon ; see Southouse v. Bate, 
 2 V. & B. 396; Morice v. Bishop of Durham, 10 Yes. 537 ; Woollett v. Harris, 5 
 Mad. 452 ; Pratt v. Sladden, 14 Ves. 198 ; Dunnage v. White, 1 Jac. & Walk. 583 ; 
 Goodere v. Lloyd, 3 Sim. 538 ; Anon, case, 1 Com. 345 ; Penfold v. Bouch, 4 
 Hare, 271. 
 
 {g) Fowler v. Garlike, 1 R. & M. 232 ; Morice v. Bishop of Durham, 9 Yes. 399; 
 S. C. 10 Ves. 522 ; Stubbs v. Sargon, 2 Keen, 255 ; S. C. 3 M. & C. 507; Kendall 
 V. Granger, 5 Beav. 300 ; Leslie v. Devonshire, 2 B. C. C. 187 ; Yezey v. Jamson, 
 
 1 Sim. & Stu. 69 ; and see Ellis v. Selby, 7 Sim. 352 ; S. C. 1 M. & C. 286 ; Wil- 
 liams V. Kershaw, 5 CI. & Fin. 111. 
 
 {h) Emblyn v. Freeman, Pr. Ch. 541; City of London v. Garway, 2 Vern. 571; 
 Collins V. Wakeman, 2 Ves. jun. 683; Fitch v. Weber, 6 Hare, 145; and see 
 Brown v. Jones, 1 Atk. 188 ; Sidney v. Shelley, 19 Ves. 352 ; Brookman v. Hales, 
 
 2 V. & B. 45. 
 
 (j) Carrick v. Errington, 2 P. W. 361 ; Arnold v. Chapman, 1 Yes. 108 ; Tre- 
 gonwell T. Sydenham, 3 Dow. 194; Jones v. Mitchell, 1 S. & S. 290 ; Gibbs v. 
 {k) For note [k), see next page.
 
 204 
 
 LEAVIX ON THE LAW OF TRUSTS, ETC. 
 
 can have no pretence for claiming the beneficial ownership, when, by the 
 express language of the instrument, the whole property has been impressed 
 with a trust. 
 
 And where, as in these cases, a trust results to the settlor or his repre- 
 sentative, not by presumption of law, but by force of the written instru- 
 ment, the trustee is not at liberty to defeat the resulting trust by the 
 production of extrinsic evidence by parol. 
 
 Having distinguished between the two kinds of resulting trusts (a 
 classification necessary to be made for the purpose of ascertaining the 
 admissibility of parol evidence,) we proceed to introduce a few remarks 
 applicable to resulting trusts generally, whether arising by presumption 
 of law or from the language of the instrument. 
 
 First, If real estate be devised upon trust to sell for a particular pur- 
 pose, and that purpose either wholly fail or do not *exhaust the 
 L J proceeds, the part that remains unapplied, whether the estate has 
 been actually sold or not, will result to the testator's heir, and not to his 
 next of kin. Cm) And the whole or surplus will result in this manner, 
 though the proceeds of the realty be blended with personal estate in the 
 formation of one common fund.(») And even an express declaration 
 that the proceeds of the sale shall be considered as part of the testator's 
 personal catate will not prevent the operation of the rule ;(o) for a direc- 
 
 Rumsey, 2 V. & B. 294; Page v. Leapingwcll, 18 Ves. 463; Pilkington v. Boughey, 
 12 Sim. 114; and see Cooke v. The Stationers' Company, 3 M. & K. 2G2. If an 
 estate was devised to A. and bis heirs, in trust to sell and pay part of the pro- 
 ceeds to persons capable of taking, and other part to a charity, the statute of 
 mortmain did not avoid the whole legal devise, but aflfects only the interest given 
 to the charity; Young v. Grove, 4 Com. B. Re. 6G8 ; Doe v. Harris, 16 Mees. & 
 W. 517. 
 
 {k) Ackyrod v. Smithson, 1 B. C. C. 503 ; Spink v. Lewis, 3 B. C. C. 355; Wil- 
 liams V. Coade, 10 Ves. 500 ; Digby v. Legard, cited Cruse v. Barley, 3 Cox's P.W. 
 22, note (1); Hutcheson v. Hanimond, 3 B. C. C. 128 ; Davenport v. Coltman, 12 
 Sim. 610 ; Muckleston v. Brown, 6 Ves. 63. 
 
 {I) See Langham v. Sanford, IT Yes. 442; S. C. 19 Ves. 643; Rachfield v. 
 Careless, 2 P. W. 158 ; Gladding v. Yapp, 5 Mad. 59 ; White v. Evans, 4 Ves. 21 ; 
 Walton V. Walton, 14 Ves. 322. 
 
 {m) Starkey v. Brooks, 1 P. W. 390; Randall v. Bookey, Pr. Ch. 162 ; Stone- 
 house V. Evelyn, 3 P. W. 252 ; Robinson v. Taylor, 2 B. C. C. 589 ; Cruse v. Bar- 
 ley, 3 P. W. 20 ; Buggins v. Yates, 2 Eq. Ca. Ab. 508 ; Hill v. Cock, 1 V. & B. 
 173 ; City of London v. Garway, 2 Vern. 571 ; Nicholls v. Crisp, cited Croft v. 
 Slee, 4 Ves. 65; Digby v. Legard, 2 Dick. 500 ; Spink v. Lewis, 3 B. C. C. 355; 
 Chitty V. Parker, 4 B. C. C. 411 ; Collins v. Wakeman, 2 Ves. jun. 683 ; Howse v. 
 Chapman, 4 Ves. 542 ; Williams v. Coade, 10 Ves. 500 ; Berry v. Usher, 11 Ves. 
 87 ; Gibbs v. Rumsey, 2 V. & B. 294 ; Maugham v. Mason, 1 V. & B. 410 ; Wilson 
 v. Major, 11 Ves. 205 ; Wright v. Wright, 16 Ves. 188 ; Hooper v. Goodwin, 18 
 Ves. 156; Jones v. Mitchell, 1 S. & S. 290; Page v. Leapingwell, 18 Ves. 463; 
 Gibbs V. Ougier, 12 Ves. 416; M'Cleland v. Shaw, 2 Sch. & Lef. 545; Mogg v. 
 Hodges, 2 Ves. 52 ; Eyre v. Marsden, 2 Keen, 564 ; Ex parte Pring, 4 Y. & C. 507 ; 
 Watson v. Hayes, 5 M. & Cr. 125 ; Davenport v. Coltman, 12 Sim. 610 ; Bunnett 
 V. Foster, 7 Beav. 540 ; Marriott v. Turner, 20 Beav. 557, &c. Note, Countess of 
 Bristol V. Hungerford, 2 Vern. 645, is misreported— see Rogers v. Rogers, 3 P.W. 
 194, note (C). 
 
 (n) Ackroyd v. Smithson, 1 B. C. C. 503; Jessopp v. Watson, 1 M. & K. 665; 
 bait V. Chattaway, 3 Beav. 576. 
 
 \r ^^) -^°^)'"s V. Wakeman, 2 Ves. jun. 683; and see Amphlett v. Parke, 2 R. & 
 .M. 226. Ogle v. Cook, cited in Fletcher v. Ashburner, 1 B. C. C. 502, and in 
 Ackroyd v. Smithson, id. 513, was for a long time considered contra ; but in Col-
 
 OF RESULTING TRUSTS. 205 
 
 tion of this kind is construed to extend to the purposes of the will only, 
 and not to give a right to those who claim, as the next of kin, by opera- 
 tion of law. In the case of Phillips v. Phillips(p) before Sir J Leach, 
 the proceeds of the sale were directed to be taken as part of the testa- 
 tor's personal estate, and were blended into one fund with the personalty, 
 and a legacy which had lapsed was decreed in favour of the next of kin : 
 but the opinion of the profession was always against the decision ; and it 
 is observable, that Collins v. Wakeman,(5) the only authority precisely 
 in point, was not once adverted to in *this case, either by the r*]^g4-i 
 bar or the bench. The case has repeatedly received the express L -1 
 disapprobation of the court,(/') and has at length been overruled. (s) 
 
 If a testator direct the proceeds of the sale to be taken as personal 
 estate, and nothing more is said, then, as every part of the will ought, 
 if possible, to have an operation, the meaning of the testator might be 
 thought to be, that the realty should be converted into personalty for 
 the benefit of the next of kin ; and in The ( -ountess of Bristol v. 
 Hungerford,(^) where the testator directed the proceeds of the sale to be 
 taken as personal estate, and go to his executors, to whom he gave 20/. 
 a piece, it is said the next of kin were declared entitled. It appears, 
 however, that the two next of kin were also the co-heirs, and therefore 
 as utraque via data the same persons would claim, it was obviously 
 unnecessary to determine the question. 
 
 It has been decided in a late case that even if the testator say 
 " nothing shall result to the heir-at-law," yet a bequest to the next of 
 kin is not sufficiently implied, but the heir-at-law will take in spite of 
 the intention to the contrary. («) 
 
 If the execution of the trust require the estate to be sold, but the pur- 
 poses of the trust do not exhaust the proceeds, the part that is undis- 
 posed of will result to the heir in the character of personalty, and, though 
 the sale was not actually effected in his lifetime, will devolve on his 
 executor :(^v) but if the trusts declared by the testator do so entirely fail 
 as not to call for a conversion, then the whole estate will result to 
 the heir as realty, and descend upon his heir,(?i') though the estate may 
 by the mistake of the trustees have been actually sold. (.7) 
 
 The doctrines upon this subject have been very clearly stated r*;^g5-i 
 *by Sir John Leach in the case of Smith v. Claxton.(j/) A tes- L J 
 
 lins V. Wakeman, 2 Ves. jun. G86, Lord Loughborough had the Reg. Lib. searched, 
 and it was found the point had been left undecided. 
 
 (p) 1 M. & K. 649. (?) 2 Ves. jun. 683. 
 
 (r) See Fitch v. Weber, 6 Hare, 145 ; Shallcross v. Wright, 12 Beav. 505 ; Flint 
 V. Warren, 16 Sim. 124. ' 
 
 (s) Taylor v. Taylor, 3 De G. Mac. & Gord. 190. 
 
 (?) Pr.' Ch. 81 ; S. C. 2 Vern. 645 ; corrected from Reg. Lib., in Rogers v. Ro- 
 gers, 3 P. W. 194, note (C) ; and see Sir W. Basset's case, cited Bayley v. Powell. 
 2 Vern. 361. 
 
 (m) Fitch V. Weber, 6 Hare, 145, and compare Johnson v. Johnson, 4 Beav. 318. 
 
 (i.) Hewitt V. Wright, 1 B. C. C. 86 ; Wright v. Wright, 16 Ves. 188 ; Smith v. 
 Claxton, 4 Mad. 484 ; Dixon v. Dawson, 2 S. & St. 327 ; Jessopp v. Watson, 1 M. 
 & K. 665 ; Hatfield v. Pryme, 2 Coll. 204. 
 
 (w) Smith V. Claxton, ubi supra; Chitty v. Parker, 2 Ves. jun. 271. 
 
 (z) Davenport V. Coltman, 12 Sim. 610. 
 
 (y) 4 Mad. 484. 
 
 February, 1858. — 14
 
 206 
 
 LEWIN ON THE LAW OF TKUSTS, ETC. 
 
 tator by one devise had given an estate to trustees and their heirs upon 
 trust to sell, and out of the proceeds to pay his funeral expenses, debts, 
 and leo'acies and subject thereto, upon trust to pay the surplus to his wife. 
 By a second devise "he had given an estate to the same trustees and their 
 heirs, upon trust to pay the rents to his wife for life, and after her death 
 to Thomas for life, and after his death upon trust to sell and divide the 
 proceeds amongst the children of Thomas, and, failing such children, 
 between Joseph and Robert in equal shares. By a third devise he had 
 ^nven an estate to the same trustees and their heirs, upon trust, subject 
 to an annuity, for Robert for life, and after his decease upon trust to 
 sell and apply the produce for the benefit of the children of Robert, and, 
 failino- such children, upon trust for Thomas and Joseph in equal shares. 
 The wife died in the lifetime of the testator ; Robert also died in the 
 lifetime of the testator without issue; Thomas survived the testator, but 
 died a few months after, having had an only child, who had died in the 
 testator's lifetime. Sir John Leach said — " Where a devisor directs his 
 real estate to be sold, and the produce to be applied to particular purposes 
 and those purposes partially fail, the heir-at-law is entitled to that part 
 of the produce which in the events is thus undisposed of. The heir-at-law 
 is entitled to it because the real estate was land at the devisor's death, and 
 this part of the produce is an interest in that land not effectually devised, 
 and which therefore descends to the heir. A devisor may give to his 
 devisee either land or the price of land at his pleasure, and the devisee 
 must receive it in the quality in which it is given, and cannot intercept 
 the purpose of the devisor. If it be the purpose of the testator to give 
 land to the devisee, the land will descend to his heir ; if it be the pur- 
 pose of the devisor to give the price of land to the devisee, it will, like 
 other money, be part of his personal estate. Under every will, when 
 the question is, whether the devisee, or the heir failing the devisee, 
 takes an interest in land as land or money, the true inquiry is, whether 
 r*1 sn *^® devisor has expressed a purpose, that, in the events *which 
 L J have happened, the land shall be converted into money. Where 
 a devisor directs his land to be sold and the produce divided between A. 
 and B., the obvious purpose of the testator is, that there shall be a sale 
 for the convenience of division, and A. and B. take their several 
 interests as money, and not land ; and if A. die in the lifetime of the 
 testator, and the heir stands in his place, the purpose of the devisor still 
 applies to the case, and the heir shall take the share of A., as A. him- 
 self would have taken it, as money, and not land : but if A. and B. loth 
 die in the lifetime of the testator, and the wlioh interest in the land 
 descends to the heir, the question would then be, whether the devisor 
 can be considered as having expressed any purpose of sale applicable to 
 that event, so as to give the interest of the heir the quality of money. 
 The obvious purpose of the testator being that there should be a sale for 
 the convenience of division between his devisees, that purpose could 
 have no application to a case in which the devise wholly failed, and the 
 heir would therefore take the whole interest as land. To apply these 
 principles to the present case : under the first devise, the estate is 
 directed to be sold, and the produce applied in aid of the personal estate
 
 OF RESULTING TRUSTS. 207 
 
 ia payment of debts and legacies, and the surplus is given to the wife. 
 The debts and legacies are fully paid out of the personal estate, and the 
 wife, dies iu th6 testator's lifetime. The whole interest thus resulted to 
 the heir, and the devisor's purpose of sale, being plainly for a distribu- 
 tion according to the will, has no application to the events which have 
 happened, and the heir took the estate as land, which descends in that 
 character to his heir. Under the second devise, there is an obvious 
 purpose of sale for the convenience of division between the sons of 
 Thomas, or, failing them, between Joseph and Kobert. The only sou 
 of Thomas, and the devisor's son Robert, both die in the devisor's life- 
 time, and the heir becomes entitled by lapse to the moiety of the pro- 
 duce intended for Robert. The purpose of sale for convenience of divi- 
 sion still applies to the events which have happened, and this moiety is 
 not land, but personal estate of the heir. Under the third devise, there 
 is the same obvious purpose of sale : first, for a division between the 
 children of Robert, and, failing them, between the heir and Joseph. 
 There *were no children of Robert, but the purpose of sale re- r*i 07-) 
 mains, and this moiety also is not land, but personal estate of L -• 
 the heir." 
 
 Secondly. If a testator bequeath money to be laid out in a purchase of 
 land, to be settled to uses which either wholly or partially fail to take 
 effect, the undisposed of interest in the money, or estate if purchased, 
 will result to the testator's executor, upon trust for his next of kin. 
 
 Should the heir advance a claim, it must be either in his character of 
 Jieir or as ptirchaser. It cannot for a moment be contended, that he can 
 establish a claim in the character of heir, for, to assert such a title, he 
 must prove himself to be the heir of the person last seised, and here by 
 the terms of the question the testator had no seisin. (s) <^The conver- 
 sion of the estate," said Lord Northington, <'is to be after the testator's 
 death, and whoever takes under the settlement directed to be made will 
 take a new-created interest, which never did, and never was intended to 
 vest in the testator, and therefore he cannot take but as purchaser. "(a) 
 But if the heir is to claim as purchaser, he must show that the will con- 
 tains a bequest to him either expressly or hy implication. Now, he can- 
 not maintain that any express gift was made in his favour, for the sup- 
 position is, that the testator has declared no intention ; nor is it easy to 
 discover upon what ground any implied gift can be supported, for, if im- 
 plied at all, it must be so from something said in the will ] but if a tes- 
 tator merely direct 1000^. to be laid out in lauds, to be settled on A. for 
 life, the injunction plainly involves nothing more than what is actually 
 expressed. To take the converse of this case, should a testator devise 
 real estate to be sold, and direct the interest of the proceeds to be paid 
 to A., for life, it is undoubted law, that the remainder of the stock would 
 result to the heir, and is not by implication a bequest to the executor.(t) 
 It may be said, that a testator is supposed so to favour the heir, that, 
 
 (z) Under the late Inheritance Act, 3 & 4 W. IV. c. 106, the title is to be de- 
 duced from the '-purchaser,'' but the argument in the text is equally applicable, 
 (a) Robinson v. Knight. 2 Ed. 159. {b) Wilson v. Major, II Yes. 205.
 
 208 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 where money is to be *turned into land, a devise to the heir shall 
 [*188J ^^ presumed. But whore is the maxim to be found, that a tes- 
 tator shall be taken to favour his heir more than his executor ? That 
 the law favours the heir is readily conceded, but it is only in the char- 
 acter of Tieir; that is, the law, which invests the heir with the title by 
 which he claims the land, will support him in the maintenance of that 
 title, until it appears he has been disinherited, either expressly, or by 
 necessary implication. It was never contended that favour was to be 
 shown to him in the character of aj^urchaser. As the trust is executory, 
 and therefore admits a greater latitude of construction, it maybe thought, 
 perhaps, that the court would insert a limitation to the heir, on the 
 ffround, that had the question been put to the testator himself, he would 
 have o-iven a direction to that effect ; but as the heir, except as to lands 
 of which the ancestor was seised, is regarded in the light of a stranger, 
 there seems no more reason why the court should insert a limitation to 
 the heir, than to any indifferent person. Besides, the argument would 
 have no application to such cases as that of Leslie v. The Duke of Devon- 
 shire, (c) where the uses of the remainder, though void, were actually 
 expressed. But though the right of the heir may not appear to rest on 
 any reasonable foundation, it may still be thought incongruous that land 
 should go to the executor. However, this difficulty will, on examination, 
 be found totally destitute of weight. The respective rights of the heir 
 and executor are absolutely and immutably fixed at the moment of 
 the intestate's decease : except so far as a person may have disposed of 
 his property by will, what was then real estate will descend upon the heir, 
 and what was then personal estate will devolve on the executor. The 
 estate may, in the execution of some partial purpose expressed upon the 
 will, have been converted into money, or a part of the personal estate 
 may, with the same view, have been converted into realty ; but, in either 
 case, the undisposed of interest will, notwithstanding the conversion, 
 result to that representative from whom in fact it was never aliened. 
 If a testator direct the sale of an estate, and give one-third of the proceeds 
 to A., and another to B., the remaining third is, even after the actual 
 r=*=lSQT *^^^^' ^ portion of the land of which the ancestor was seised, and 
 L -I will therefore result to the heir ; and, on the same principle, if 
 1000?. be bequeathed to be laid out in lands to be settled, one-third on 
 A. and his heirs, and another on B. and his heirs, the remaining one- 
 third, even after the investment, must be part of the testator's personal 
 estate, and, as such, result to the executor. " All the cases," said Lord 
 Eldon, "establish this proposition, that where a person, dealing upon 
 his own property, has directed a conversion for a imrtlcular purpose, or 
 out and out, but the proceeds to be ap>plied to a particular purpose, when 
 the purpose fails, the intention fails, and the court regards him as not 
 having directed the conversion."(fZ) It may appear singular, that money 
 should go to the heir, and land to the executor ; but it is needless to 
 mention the numerous cases in which money at law is land in equity, 
 and land at law is money in equity. 
 
 (c) 2 B. C. C. 187. (f/j Ripley v. 'Waterworth. 7 Ves. 435.
 
 OF RESULTING TRUSTS. 209 
 
 The old authonties(e) upon the subject are somewhat conflicting; hut 
 it will be unnecessary to enter upon a particular examination of them, as 
 the case of Cogan v. Stevens,(/) before Lord Cottenham, while at the 
 rolls, has decided the point in favour of the executor. 
 
 Thirdly. It often happens, that the settlor makes a primary disposi- 
 tion of the whole property to A. subject to a particular charge in favour 
 of B., and the charge in event either wholly or partially fails so as either 
 not to divest, or only ^^ro tanto divest the estate of A. The reader must 
 distinguish the preceding cases of resulting trust from such a gift as this; 
 for here, as the entirety is disposed of in the first instance to A., so far 
 as the charge does not exhaust it, there can nothing result to the heir, 
 even should the charge not take effect. The distinction was thus stated 
 by Sir J. Leach -. — << If the devise/' he said, " to a particular person, or 
 for a particular purpose, be intended by the testator to be an exception 
 from the gift to the *residuary devisee, the heir takes the benefit r>ici nrn 
 of the failure ; but if it be intended to be a charge only upon L -I 
 the estate devised, and not an exception from the gift, the devisee will 
 be entitled to the benefit of the failure. "(</) 
 
 Thus, if lands be devised to A, charged with a legacy to B. provided 
 B. attain the age of twenty-one, should B. die without attaining that age, 
 the devise has become absolute in A., and the will is to be read as if the 
 legacy to B. had never been mentioned.(/i) So if lands be given to A. 
 charged with a legacy to B., and B. dies in the testator's lifetime. (t) 
 
 The construction is the same, if lands be given to A. subject to and 
 charged with any sum not exceeding 10,000/. to such persons, and in 
 such manner, as the testator shall appoint, and the power is either never 
 exercised, or the execution of it is void :(/i-) for here, as the testator confers 
 the whole interest on the devisee, reserving the power, if he either ab- 
 stain from executing the power, or appoint for an illegal purpose, he 
 does not diminish that interest, but the heir is wholly disinherited. (/) 
 
 And where a testator had devised certain estates upon trust to sell, and 
 out of the proceeds to pay 5000?. unto his wife, her executors and ad- 
 ministrators, in part satisfaction of the stein o/10,000Z. secured to herhy 
 marriage settlement in case of her surviving him, and to invest the resi- 
 due upon certain trusts, and the wife died in the lifetime of the husband, 
 so that the 10,000/. never became raisable, it was held that the 5000/., 
 instead of resulting to the heir, was included in the residue. (m) The 
 
 {e) Fletcher v. Chapman, 3 B. P. C. 1 ; Hayford v. Benlows, Amb. 582 ; Leslie 
 V. Duke of Devonshire, 2 B. C. C. 187; Brown v. De Laet, 4 B. C. C. 534; Tregon- 
 well v. Sydenham, 3 Dow. 207 ; Abbot v. Lee, 2 Vern. 284 ; S. C. Append. No. II. ; 
 Mogg V. Hodges, 2 Ves. 52. 
 
 (/) Append. No. III. 5 L. J. N. S. Chy. 17 ; Hereford v. Ravenhill, 1 Beav. 481. 
 
 \g) Cooke v. The Stationers' Company, 3 M. & K. 264. 
 
 [h) Tregonwell V. Sydenham, 3 Dow. 210, per Lord Eldon. Sprigg v. Sprigg, 
 2 Vern. 394, was decided on this principle; Cruse v. Barley, 3 P. W. 20, should 
 have been decided the same way, but the point was not noticed. So Attorney- 
 General V. Milner, 3 Atk. 112; Croft v. Slee, 4 Ves. 60. 
 
 (t) Sutcliffe v. Cole, 3 Drew. 185. 
 
 (k) Jackson v. Hurlock, 2 Ed. 263 ; Cooke v. The Stationers' Company, 3 M. k 
 K. 262. 
 
 {I) Tregonwell v. Sydenham, 3 Dow. 213, per Lord Eldon. 
 
 \m) Noel V. Lord Henley, 7 Price, 241 ; S. C. Dan. 211, and 322.
 
 210 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 construction put upon the will was, that the whole fund was in the first 
 
 instance given to the residuary legatees, subject to a charge of 5000?. to 
 
 arise on a certain event, and that *contingency having never 
 
 L ■'■^■'•J occurred, the primary devise of the entirety was never divested. (?i) 
 
 Again, if an estate be settled to the use of trustees for a term of 
 ninety-nine years, upon trusts that do not exhaust the whole interest, 
 and from and after the expiration, or other sooner determination of the 
 said term, and snhject thereto to uses in strict settlement, the surplus of 
 the term will be in trust, not for the heir, but for the devisees in remain- 
 der, for here the intention is express, that, subject to trusts which have 
 been exhausted, the remaindermen shall take the whole estate. (o) So 
 if an estate be devised to trustees upon trust within one year after the 
 testator's decease to raise 20007., and " after raising the same" upon 
 trust in strict settlement, the court hold the 2000?. to be a charge upon 
 and not an exception out of the estate. (^:)) 
 
 And if the limitation be to trustees for ninety-nine years upon the 
 trust thereinafter expressed, (and the instrument makes no mention of 
 the trusts,) and from and after the expiration, or other sooner determina- 
 tion of the said term, to uses in strict settlement, the court will consider 
 the intention to be clearly implied, that the remaindermen should have 
 the beneficial enjoyment in the first instance, and will read the will as 
 if the words sM?>yec^ thereto and to the trust thereof had been actually 
 expressed, (g') 
 
 There has been much discussion as to the applicability to a charity 
 legacy of the rule establishing a distinction between a charge tipon and 
 exception from a devise. The question is one of difficulty, and before 
 stating the apparent result of the cases, it may be useful to premise a 
 few words as to the principle. 
 
 If a testator devise an estate worth 10,000?. to trustees in trust to sell, 
 and out of the proceeds to pay 1000?. to A., and the residue to B., and 
 r*1921 '^' ^^^^ ^" ^^^ testator's lifetime, the *lapse enures to the benefit 
 •- J not of the devisee but of the heir-at-law ; the reason is, that in 
 real estate the word " residue" has not the same meaning as in personal 
 estate, but each devise is considered a specific one, and the 1000?. and 
 9000?. are distinct fractions of the estate, so that if either fail in event, 
 the undisposed of interest results to the heir-at-law. 
 
 If, however, a testator devise an estate to A. and his heirs charged 
 with a legacy of 1000?. to B., and B. dies in the testator's lifetime, then, 
 as we have seen, A. takes the estate free from the legacy. The expla- 
 nation is, not that the devisee was intended to take the legacy, qua legacy, 
 but the testator has constituted a hceres f actus to the disinherison at all 
 events of the heir-at-law, and as the legacy is given not directly to the 
 
 (n) That the case was probably decided on this ground, see Observations of 
 
 Richards, C. B., Dan. 235, and of Lord Eldon, ib. 338 
 
 (0) Davidson v. Foley, 2 B. C. C. 203; Marshall v. Holloway, 2 Sw. 432; Lord 
 
 ^o^i n n'^?^''" ^- ^a^l^'S of Hertford, 2 V. & B. 54 ; and see Maundrell v. Maund- 
 rell, 10 Ves. 259. 
 
 {p) Re Cooper's Trusts, 4 De Gex, M. & G. 757. 
 T orH n r^ T- ^^'"^' ^9 Ves. 352; S. C. Coop. 206; overruling the dictum of 
 Lord Hardwicke, in Brown V. Jones. 1 Atk. 191
 
 OF RESULTING TRUSTS. 211 
 
 legatee, in which case it would be an exception from the devise of the 
 estate, but has been made a charge to be raised, so far as may be neces- 
 sary, out of the estate previously devised, the legacy, as in event it is 
 not required to be raised, sinks for the benefit of the devisee. 
 
 Should an estate be devised to A., and his heirs, charged with a legacy 
 to a charity, then these observations occur. On the one hand it may be 
 said that in the case of an ordinary charge the lapse of the legacy was 
 an incident to the bequest, which the testator may be taken to have 
 contemplated, and he may have meant that on the occurrence of that 
 event the devisee should be entitled ; but in the instance of a charity, 
 the object of the legacy exists at the testator's death, and the event on 
 which the money was payable has arisen ; he could not, therefore, have 
 intended the devisee to take the legacy, which is bequeathed under the 
 circumstances to the charity ; the legacy therefore, in this case, though 
 in form a charge, is in fact an exception. On the other hand it may be 
 argued that where the legacy is admitted to be a charge and not an ex- 
 ception, the devisee does not take the legacy, hecause it was intended 
 for him, since then in the case of a lapse the charge would not sink 
 for the benefit of the devisee (for in real estate that only goes to the 
 devisee which is not otherwise expressed to be disposed of, whether the 
 bequest take effect or not, as in the case above noticed of a trust for 
 sale, where the lapse of a legacy out of the proceeds enures to the bene- 
 fit *of the heir,) but, nevertheless, in a charge the devisee does r^j^ggn 
 take the legacy in case of lapse, from the form in which the L -* 
 legacy is given ; a result which shows the true view to be that the testa- 
 tor first constitutes the devisee the hceres factus of the whole estate, 
 which disinherits the heir, and then as the legacy is made a graft upon 
 that estate, and the legacy fails, the estate is exonerated from the burden. 
 Lord Alvanley was of opinion that this was the true ground, and that it 
 matters not in what way the failure of the legacy arises, whether by 
 lapse, or the unlawfulness of the object : "It is now perfectly settled," 
 said Lord Alvanley, <' that if an estate is devised charged with legacies, 
 and the legacies fail, no matter how, the devisee shall have the benefit 
 of it and take the estate."(r) 
 
 The cases upon the subject are very conflicting, but the best results to 
 be obtained from them appear to be these : 
 
 1. The first inquiry to be made is, whether upon the whole will the 
 testator intended the legacy and the devise to be two distinct indepen- 
 dent gifts, flowing directly from himself to the legatee and devisee, or 
 whether he devised the whole estate in the first instance to the devisee 
 to the disinherison of the heir, and then gave the legacy not as an 
 original gift from the testator to the legatee, but by way of graft upon 
 the estate previously given to the devisee ; in the former case the legacy 
 would be an exception, (s) and in the latter, a charge. 
 
 2. Assuming the legacy to be, according to the true construction of 
 the will, not an exception but a charge, then if the legacy be given by 
 
 (r) Kennell v. Abbott, 4 Yes. 811. 
 
 («) Cooper's Trusts, 4 De Gex, M. & G. V57.
 
 212 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 way of a condition imposed on the devisee, the legacy, as the condition 
 is void, sinks for the devisee's benefit. (f) 
 
 3. If the estate be devised charged with a sum, say of 1000/., to be 
 paid to the testator's executors and applied in discharge of his debts 
 and legacies, including a legacy to a charity, in this case the charge is 
 
 raisable as against the devisee, and *the charity legacy will be a 
 L -1 resulting trust to the testator's heir-at-law. (w) 
 
 4. If the estate be simply devised to one, charged with or subject to 
 a legacy in favour of another, and there is nothing on the face of the 
 will to show that the legacy, though expressed in the form of of a charge, 
 was meant to be an exception, then the leaning of the court at the 
 present day would appear to be in favour of the devisee. (i^) 
 
 5. It may be doubted whether the circumstance of a direction for an 
 intermediate payment to the testator's executors of the sum to be raised 
 be a tenable ground of distinction, and should the court decide in favour 
 of the devisee in a case under the fourth head, such decision would 
 undoubtedly shake those in favour of the heir under the third. It would 
 be a reasonable and intelligible rule to lay down that where the failure 
 of the legacy arises from any event which the testator might reasonably 
 have contemplated, as, the death of the legatee in his lifetime, then the 
 legacy should sink for the benefit of the devisee ; but that where the legacy 
 is raisable in the event which has happened, and the legacy is only not 
 paid because the policy of the law, in spite of the intention, forbids it, 
 as in the case of a legacy to a charity, there the legacy was in fact never 
 given to the devisee, and a trust should result for the benefit of the 
 heir. The subject, as the matter now stands, is in a very unsatisfactory 
 state. 
 
 Fourthly. It has been stated in general terms, that, in the cases we 
 have mentioned, a trust will result to the settlor or his representatives, 
 but the doctrine must be received with at least this qualification, that 
 r*195n *^^ interest which would *have resulted be not otherwise dis- 
 L -I posed of by the settlor himself. 
 
 Any interest that would have resulted may of course be given away 
 from the settlor's representative, by a particular and specific devise or 
 bequest ; it remains only to inquire what is the efi'ect of certain general 
 expressions. 
 
 With respect to a testator's realty, the heir " shall sit in the seat of his 
 
 (0 Poor V. Mial, 6 Madd. 32; Arnold v. Chapman, 1 Yes. 108; Ridgway v. 
 Woodhouse, 7 Beav. 437. See contra, Bland v. Wilkins, cited Wright v. Row, 1 
 B. C. C. 61, note. In Cooke t. Stationers' Company, the M. R. said the condition 
 made no difference, as it was no more than a charge, 3 M. & K. 266. 
 
 (m) Arnold v. Chapman, 1 Ves. 108; Henchman y. Attorney-General, 3 M. k K. 
 
 {v) Cooke V. Stationers' Company, 3 M. & K. 262; Baker v. Hall, 12 Ves. 497, 
 (but the heir was not a party;) Barrington v. Hereford, cited Wright v. Row, 1 
 R A a'^^' •'^^^^soi ^- Hurlock, 2 Ed. 263; Amb. 487 ; and see remarks of Lord 
 Keaesdale and Lord Eldon on this case in Tregonwell v. Sydenham, 3 Dow. 208- 
 f«v f u assumed the power to be good, but that as it was exercised in 
 
 lavour ot a chanty, the devisee was not affected bv a void execution of the power, 
 ana was rightly allowed to retain the estate: in fact, there was no appointment 
 Z^A ^"^"'y' for tbe letter, not being of a testamentary character, could not be 
 read, bee contra, Gravenor v. Hallum, Amb. 643
 
 OF RESULTING TRUSTS. 213 
 
 ancestor," unless the disinherison be expressed or clearly implied. The 
 word " residue," therefore, has in devises received a strict and narrow 
 construction, and is held to mean, not all that the testator has not actually 
 disposed of, but only so much of which he has shown no intention of dis- 
 posing. Thus, if, before the late Wills Act, lands had been devised 
 upon trust to raise 5000A for a charity, the residue to A.,(?c) or upon 
 trust to raise 5000/. for a charity, with a general devise ''of all the residue 
 of the testator's real estate, whatsoever and wheresoever," (.i-) in either 
 case the void legacy would have resulted to the heir, and not have been 
 included in the residuary clause. But the law has now been altered in 
 this respect by the late Wills Act, which makes a residuary devise sweep 
 all interest undisposed of in real estate as a residuary bequest already did 
 in respect of personal estate. (y) 
 
 And if a testator direct his lands to be sold, and afterwards add a 
 general bequest of all his personal estate,[z) or appoint a person residuary 
 executor, {a) any part of the proceeds of the sale that is undisposed of 
 will not form part of the residuary fund in the first case, or pass to the 
 residuary executor in the ^second ; for nothing, properly speak- r^ic^OGI 
 ing, is a testator's j^^rsonaZ estate, but what possesses that charac- L -I 
 ter at the moment of his decease. (6) 
 
 But the intention of converting the property absolutely by the sale, so 
 as to make the proceeds undisposed of by the will pass by the description 
 of the testator's "j>ersonaI estate," may be collected from a will specially 
 worded j(c) and the blending of the real and personal estates into one 
 fund will be regarded as a circumstance in some degree indicative of such 
 an intention ;[d) and this of course will be the case, where the testator 
 expressly directs the proceeds to be considered as part of his person- 
 alty.(e) 
 
 (w) Hutcheson v. Hammond, 3 B. C. C. 128; Page v. Leaping-\vell, 18 Yes. 463; 
 Collins V. Wakeman, 2 Ves. jun. 683 ; Cruse v. Barlej", 3 P. W. 20 ; Jones v. 
 Mitchell, 1 S. & S. 293; Sprigg v. Sprigg, 2 Tern. 394, per Cur.; Cooke v. Sta- 
 tioners' Company, 3 M. & K. 264, per Cur.; Anon, case, 1 Com. 345. 
 
 (x) Goodright v. Opie, 8 Mod. 123; Wright v. Hall, Fort. 182; S. C. 8 Mod. 
 222; Roe v. Fludd, Fort. 184; Watson v. Earl of Lincoln, Amb. 325; Oke v. 
 Heath, 1 Ves. 141, per Lord Hardwicke ; Cambridge v. Rous, 8 Ves. 25, per Sir 
 W. Grant; Doe v. Underdown, Willes, 293. But see Page v. Leapingwell, 18 Ves. 
 463 ; but it does not appear that the heir was a party, and the question was not 
 discussed. 
 
 (y) 1 Vict. c. 26, s. 25. 
 
 (z) Maugham v. Mason, 1 V. k B. 410 ; and see Gibbs v. Rumsey, 2 V. & B. 
 294. 
 
 (a) Berry v. Usher, 11 Ves. 87. 
 
 (6) See Maugham v. Mason, 1 V. & B. 416. 
 
 (c) Mallabar v. Mallabar, Rep. t. Talb. 78 ; Brown v. Bigg, 7 Ves. 279 ; Durour 
 V. Motteux, 1 Ves. 321. (See Mocteux's will correctly stated, Jones y. Mitchell, 1 
 S. & S. 292, note (d)). See observations on Mallabar v. Mallabar, and Durour y. 
 Motteux, in Maugham v. Mason, 1 V. & B. 416. 
 
 (d) Compare Durour v. Motteux, 1 Ves. 321, with Maughan y. Mason, 1 V. & B. 
 417; Hutcheson y. Hammond, 3 B. C. C. 148, per Lord Thurlow ; but see Berry 
 V. Usher, 11 Ves. 87. 
 
 (e) Kidney v. Koussmaker, 1 Ves. jun. 436; see Lowes v. Hackward, 18 Ves. 
 171. In Collins v. Wakeman, 2 Ves. jun. 683, the sum undisposed of did not fall 
 into the residue on the principle adopted in Dayers y. Dewes, 3 P. W. 40, and 
 Attorney-General v. Johnstone, Amb. 577.
 
 2U LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 The question has been much discussed, what expressions of a testator 
 will amount to such an absolute conversion of real estate into personal, 
 that a void or lapsed legacy given out of the proceeds of the sale shall, 
 as if the property had been personal, fall into the residuary bequest, 
 instead of resulting to the heir. " I agree," said Lord Brougham, " a 
 testator may provide that lapsed and void legacies shall go in this manner, 
 as if the testator say in express words, '' I give all lapsed and void lega- 
 cies as parcel of my residue to the residuary legatee," and if he can do 
 it by express words, he can do it by plain and obvious intention to be 
 gathered from the whole instrument. (/) But what will amount to such 
 an implication is a point that can with difficulty be brought under any 
 very definite rule. 
 
 r^-i^^n. Apparently the only principle to be extracted from the *autho- 
 I- -I rities is, that a lapsed or void legacy will pass to the residuary 
 legatee, if the testator expressly declare that the proceeds of the sale shall 
 he considered as ^^ personal estate," or if the intention of an absolute 
 conversion into personal estate for all the purposes of the will can, with- 
 out the aid of any such express declaration, he gathered from the general 
 structure of the willing) It was stated in a former page, that if a testator 
 direct the proceeds of the sale to be taken as '^personal estate," a part 
 of the proceeds undisposed of by him will nevertheless not result to the 
 next of kin. The distinction between the next of kin and the residuary 
 legatee is this : the former claim dehors the will, while the latter is a 
 claimant under the will, and when the proceeds of the sale are directed 
 to be taken as personalty, the testator must be understood to mean for 
 the purposes of the will only, and not for any object beyond it. 
 
 With respect to resulting trusts of p)ersonal estate,- the general residu- 
 ary bequest sweeps every interest, whether undisposed of by the will, or 
 undisposed of in event, and therefore it is only where the will contains 
 no residuary clause that the next of kin can assert a claim to the benefit 
 of the resulting interest. (/;) But if any part of the personal estate be 
 expressly excepted from the residue, as if a testator reserve a sum to be 
 disposed of by a codicil, and give the residue not disposed of or reserved 
 to be disposed of to A., and no codicil is executed, the sum so specially 
 excepted will then result to the next of kin.f A 
 
 tfr It may happen that a cestui que trust has died intestate, without heir 
 r*lQ9l ^^ D6xt of kin, and in that case the beneficial interest undisposed 
 •- J of will, if the property be real estate (a *trust not being liable to 
 
 (/) Amphlett v. Parke, 2 R. & M. 232 ; and see M'Cleland v. Shaw, 2 Sch. & 
 Lef. 545. 
 
 {g) Durour v. Motteux, 1 Ves. 321, (see the will stated from Reg. Lib. in Jones 
 V. Mitchell, 1 S. & S. 292, note (d)) ; Kennell v. Abbott, 4 Ves. 802 ; Amphlett v. 
 Parke, 1 Sim. 275 ; S. C. 2 R. & M. 221 ; Green v. Jackson, 5 Russ. 35; S. C. 2 
 R. & M. 238 ; Salt v. Chattaway, 3 Beav. 576. As to Mallabar v. Mallabar. Rep. 
 t. Talb. 78, see Phillips v. Phillips, 1 M. & K. 660. 
 
 {h) See Dawson v. Clarke, 15 Ves. 417; Brown v. Higgs, 4 Ves. 708 ; S. C. 8 
 Ves. 570; Shanley v. Baker, 4 Ves. 722; Jackson v. Kelly, 2 Ves. 285; Oke v. 
 Heath, 1 Ves. 141 ; Cambridge v. Rous, 8 Ves. 25 ; Cooke v. Stationers' Company-, 
 3M. &K. 264. ' ° ' ' f •" 
 
 (i) Davers v. Dewes, 3 P. W. 40: Attornev-General v. Johnstone. Amb. 577.
 
 OF KESULTING TRUSTS. 215 
 
 escheat,) sink into the land for the benefit of the legal tenant ;(^) but in 
 the case of personalty the resulting interest, as bonum vacans, falls to 
 the crown by the prerogative. (Z) 
 
 Lastly, it may be noticed that settlements to cliaritalle purposes are 
 an exception from the law of resulting trusts : for, upon the construction 
 of instruments of this kind, the court has adopted the two following 
 rules : — 
 
 1. Where a person makes a gift, whether by deed or will, and expresses 
 a general intention of charity, but either particularizes no objects,(m) 
 or such as do not exhaust the proceeds, («) the court will not sufi'er the 
 property in the first case, or the surplus in the second, to result to the 
 settlor or his representatives, but will take upon itself to execute the 
 general intention, by declaring the particular purposes to which the fund 
 shall be applied. 
 
 2. Where a person settles lands, or the rents and profits of lands to 
 purposes which at the time exhaust the whole proceeds, but, in conse- 
 quence of an increase in the value of the estate, an excess of income 
 subsequently arises, the court will order the surplus, instead of resulting 
 to the heir, to be applied in the same or a similar manner with the ori- 
 ginal amount, ^o) 
 
 *But even in the case of charity, if the settlor do not give the pj^gg-i 
 land or the whole rents of the land, but, noticing the property L ^ -I 
 to be of a certain value, appropriate part only to the charity, the residue 
 will then follow the general rule, and result to the heir-at-law. (jj) 
 
 The exceptions we have noticed were established at an early period, 
 when the doctrine of resulting trusts was imperfectly understood.(2) 
 The interest of the heir was shut entirely out of sight, and the question 
 
 {k) Henchman v. Attorney-General, 3 M. & K. 485 ; Taylor v. Haygarth, 14 
 Sim. 8. 
 
 (I) See S. C; and see Middleton v. Spicer, 1 B. C. C. 201 ; Barclay v. Russell, 
 3 Yes. 424 ; Taylor v. Haygarth, ubi supra. 
 
 (m) Attorney-General v. Herrick, Amb. 1:12. 
 
 \n) Attorney-General v. Haberdashers' Company, 4 B. C. C. 102 ; S. C. 2 Ves. 
 jun. 1; Attorney-General v. Minshull, 4 Ves. 11; Attorney-General v. Arnold, 
 Shower's P. C. 22 ; and see Attorney-General v. Sparks, Amb. 201 ; and see Lord 
 Eldon's observations, Attorney-General v. Mayor of Bristol, 2 J. & W. 319. 
 
 (o) Inhabitants of Eltham v. Warreyn, Duke, 67; Sutton Colefield case, second 
 resolution. Id. 68 ; Hynshaw v. Morpeth Corporation, Id. 69 ; Thetford School 
 case, 8 Re. 130 b ; Attorney-General v. Johnson, Amb. 190 ; Kensington Hastmgs' 
 case, Duke, 71 ; Attorney-General v. Mayor of Coventry, 2 Vern. 397, reversed in 
 D. P. 7 B. P. C. 236, (see the foregoing cases commented upon by Lord Eldon m 
 Attorney-General V. Mayor of Bristol, 2 J. &W. 316 ;) Attorney-General v. Coopers' 
 Company, 19 Ves. 189, per Lord Eldon; Attorney-General v. Wilson, 3 M. & K. 
 362 ; Lad v. London City, Mos. 99 ; Attorney-General v. Coopers' Company, 3 
 Beav. 29; Attorney-General v. Master of Catherine Hall, Cambridge, Jac. 381; 
 Attorney-General T. Drapers' Company, 2 Beav. 508 ; 4 Beav. 67 ; Attorney-General 
 V. Christ's Hospital, ib. 73; Attorney-General v. Merchants Venturers' Society, 5 
 Beav. 338 ; Attorney-General v. Corporation of Southmolton, 14 Beav. 357 ; 
 Attorney-General v. Caius College, 2 Keen, 150 ; and see Attorney-General v. 
 Smythies, 2 R. & M. 7l7 ; Attorney-General v. Drapers' Company, 6 Beav. 382. 
 
 Ip) See Attorney-General v. Mayor of Bristol, 2 J. & W. 307 and 332 ; Attorney- 
 General V. Gascoigne, 2 M. & K. 647. 
 
 [q) Attorney-General v. Johnson, Amb. 190, per Lord Hardwicke ; Attorney- 
 General V. Mayor of Bristol, 2 J. & W. 307, per Lord Eldon.
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 216 
 
 was viewed as between the charity and the trustee.(r) Were the subject 
 still unprejudiced by authority, there is little doubt but the court would, 
 at the present day, be governed by the general principle, and hold a trust 
 to result. (s) 
 
 SECTION II. 
 
 RESULTING TRUSTS UPON PURCHASES IN THE NAMES OF THIRD 
 
 PERSONS. 
 
 I. Where the purchase is in the name of a stranger. 
 
 "The clear result," said Lord Chief Baron Eyre, "of all the cases, 
 without a single exception, is that the trust of a legal estate, whether 
 freehold, copyhold or leasehold, whether taken in the names of the pur- 
 chaser and others jointly, or in the name of others without that of the pur- 
 chaser; whether in one name or several, whether jointly(<) or sMccessive,(<^) 
 results *to the man who advances the purchase-money (m) and it 
 L •^'^^J goes on a strict analogy to the rule of the common law, that where 
 a feoffment is made without consideration, the use results to the feoffor.(v) 
 
 But no trust will result unless the person advance the money in the 
 character of a purchaser; for if A. discharge the purchase-money by 
 way of loan to B., in whose name the conveyance is taken, no trust will 
 result in favour of A., who is merely a creditor of B.(?6-) And, on the 
 other hand, should B. advance the purchase-money, but only on account 
 of A., then A. is the owner in equity, and B. stands in the light of a 
 creditor, (.r) 
 
 And not only real estate but persowo% also is governed by these prin- 
 ciples, as if a man take a bond,(^) or purchase an annuity,(s) stock, (a) 
 or other chattel interest,(6) in the name of a stranger, the equitable 
 ownership results to the person from whom the consideration moved. 
 
 (r) See Thetford School case, 8 Re. 130. 
 
 (s) See Attorney-General v. Mayor of Bristol, 2 J. & W. 307. 
 
 {t) See Ex parte Houghton, 17 Ves. 251 ; Rider v. Kidder, 10 Ves. 367. 
 
 [tt) Withers v. Withers, Amb. 151 ; Howe v. Howe, 1 Vern. 415 ; Goodright t, 
 Hodges, 1 Watli. Cop. 227 ; S. C. Lofift, 230 ; Smith v. Baker, 1 Atk. 385 ; Clarke 
 V. Danvers, 1 Ch. Ca. 310; Prankerd v. Prankerd, 1 S. & S. 1. 
 
 [u) Redington v. Redington, 3 Ridg. 177, per Lord Loughborough; Hungate v. 
 Hungate, Tothill, 120; Ex parte Vernon, 2 P. W. 549; Ambrose v. Ambrose, 1 P. 
 W. 321 ; Willis v. Willis, 2 Atk. 71 ; Woodman v. Morrel, 2 Freem. 33, per Cur.; 
 ib. 123 ; Finch v. Finch, 15 Ves. 50, per Lord Eldon; Grey v. Grey, 2 Sw. 597 ; 
 S. C. Finch. 340, per Lord Nottingham ; Wray v. Steele, 2 V. & B. 390, per Sir 
 T. Plumer ; Smith v. Camelford, 2 Ves. jun. 712, per Lord Loughborough ; Anon. 
 2 Vent. 361; Pelly v. Maddin, 21 Vin. Ab. 498; Lever v. Andrews, 7 B. P. C. 
 288; Lade v. Lade', 1 Wils. 21; Groves v. Groves, 3 Y. & J. 170, per Ch. Bar. 
 Alexander; Murless v. Franklin, 1 Sw. 17, 18, per Lord Eldon; Crop v. Norton, 
 9 Mod. 235; S. C. Barn. 184; S. C. 2 Atk. 75, per Lord Hardwicke ; Trench v. 
 Harrison, 17 Sim. 111. 
 
 («) Dyer v. Dyer, 2 Cox, 93 ; S. C. 1 Watk. Cop. 218. 
 
 {w) See Bartlett v. Pickersgill, 1 Ed. 516; Crop v. Norton, 9 Mod. 235. 
 
 (x) See Aveling v. Knipe, 19 Ves. 441. {y) Ebrand v. Dancer, 2 Ch. Ca. 26. 
 
 (z) Mortimer v. Davies, cited Rider v. Kidder, 10 Ves. 363, 366. 
 
 {a) Rider v. Kidder, 10 Ves. 360 ; Lloyd v. Read, 1 P. W. 607; and see Sidmouth 
 V. Sidmouth, 2 Beav. 447. 
 
 [b) See Ex parte Houghton, 17 Ves. 253.
 
 OF RESULTING TRUSTS, 217 
 
 In Crop V. Norton(c) Lord Hardwicke doubted whether the rule was 
 not confined to an individual purchaser. <' Suppose/' he said, " two per- 
 sons purchase an estate, and club for the consideration-money ; suppose 
 the conveyance is taken in the name of one of them only, and it recites 
 that the whole of the *purchase-money was paid by the other. r^.;)o-i-i 
 I do not know a case wherein it has ever been declared there ^ " J 
 could be a resulting trust in part of the estate for the benefit of the 
 other."^fZ) But in Wray v. Steel, (e) the point was expressly decided in 
 conformity with the general principle, and Sir Thomas Plumer observed, 
 that Lord Hardwicke could not have used the language ascribed to him; 
 for what was there applicable to an advance by a single individual which 
 was not equally applicable to a joint advance under similar circum- 
 stances ? 
 
 If two persons joining in a purchase, take the conveyance, not in the 
 name of a stranger, or of one of themselves, but in the names of hoth of 
 themselves as joint-tenants, then a distinction must be observed between 
 an equal and an unequal contribution. In the former case there in no- 
 thing on which to ground the presumption of a resulting trust, for per- 
 sons making equal advances might very consistently take an estate in 
 joint-tenancy, as each has it in his power to compel a partition, or by 
 executing a conveyance to pass a moiety of the estate. (/) And so, if two 
 persons contract for a purchase to them and their heirs, and one of them 
 die, the court, if they paid equal proportions, will specifically perform the 
 agreement, by ordering a conveyance, not to the heir of the deceased per- 
 son and the survivor as tenants in common, but to the survivor alone. (^f) 
 But even where equal contributors take a conveyance in joint- tenancy, 
 collateral circumstances may induce a court of equity to construe it a 
 tenancy in common, as if two people join in lending money upon mort- 
 gage, equity says it could not have been the intention that the interest 
 in that should survive j but though they took a joint security, each meant 
 to lend his own, and take back his own.(/<) And so where two tenants in 
 *common, of a mortgage term, purchase the equity of redemption |-^^„^-. 
 to them and their heirs, it was held the nature of the inheritance L "" J 
 should follow that of the term. (A And in all cases of a joint under- 
 taking or partnership, by way of trade, or upon the hazard of profit and 
 loss, the jus accrcscendi is excluded, and the survivors are trustees, in 
 due proportions, for the representatives of those who are dead.(Z;) And 
 
 (c) Barn. 179; S. C. 9 Mod. 233; S. C. 2 Atk. 74. 
 
 (d) Barn. 184. (e) 2 V. & B. 388. 
 
 (/) Rea T. Williams, Append, to Vend, and Purch. No. 24 ; Moyse v. Gyles, 2 
 Vern. 385 ; York v. Eaton, 2 Freem. 23 ; Rigden v. Vallier, 3 Atk. 735, per Lord 
 Hardwicke; Hayes v. Kingdome, 1 Veru. 33; Aveling v. Knipe, 19 Ves. 444, per 
 Sir W. Grant; Lake v. Gibson, 1 Eq. Ca. Ab. 291, per Sir Jos. Jekj-ll ; Anon. 
 Cartli. 15; and see Thicknesse v. Vernon, 2 Freem. 84. 
 
 {ff) Aveling v. Knipe, 19 Ves. 441. 
 
 (h) Morley v. Bird, 3 Ves. 631, per Lord Alvanley; Rigden v. Vallier, 3 Atk. 
 734, per Lord Hardwicke; Anon, case. Garth. 16; Partridge v. Pawlet, 1 Atk. 467 ; 
 Petty V. Styward, 1 Ch. Re. 57 ; Vickers v. Cowell, 1 Beav. 529. 
 
 (i) Edwards v. Fashion, Pr. Ch. 332 ; and see Aveling v. Knipe, 19 Ves. 444. 
 
 (k) Lake v. Gibson, 1 Eq. Ca. Ab. 290 ; S. C. (by name of Lake v. Craddock,) 
 affirmed 3 P. W. 158: Jeffereys v. Small. 1 Vern. 217; Elliot v. Brown, cited
 
 218 LEWIN OX THE LAW OF TRUSTS, ETC. 
 
 where the purchasers pay equally, and take a joint estate, and one after- 
 wards Improves the property at his own cost, he has a lien upon the land 
 jtro tanto for the money he has expended. (?) Should the contribution 
 of the parties be unequal, then in all cases a trust results to each of them 
 in proportion to the amount originally subscribed. (?7^) 
 
 If A. discharo-e the fine on a grant of copyholds to B., C, and D. suc- 
 cessively for their lives, the equitable interest will result to A. ; but should 
 A. die intestate, on whom will the remaining equity devolve ? Estates 
 pur autre vie in copyholds were not within the Statute of Frauds,(«) nor 
 the 1-4 G. 2 c. 20, s. 9,(o) and before the late Wills Act the questions 
 were asked, can the heir take an estate which has no descendible pro- 
 perty ? or can the executor claim as assets what is not of the nature of 
 personalty ? or shall the tenants of the legal estate become the beneficial 
 proprietors in the absence of any one to advance a better title? In Clark 
 V. I)anvers(/>) the plaintifi" was both heir and executor of the equitable 
 owner, and was decreed the benefit of the trust. In Howe v. Howe^jj 
 the administratrix was held entitled, and so it was allowed in Rundle v. 
 Ptundle,(r) and was determined in Withers v. Withers,(s) and was subse- 
 quently sanctioned by the high authority of Lord *Mansfield. 
 L " -1 (^ It is always presumed," said his lordship, " that whoever pays 
 the fine takes for his own use and benefit, and does not mean to serve the 
 others, who are mere nominees to give as large an estate as by the rules 
 of the manor he can have ; and as his personal estate is diminished hy 
 the payment of the fine-money his personal representative is entitled to the 
 advantage remit ing from it."(t) Now by the late Wills Act (1 Y. c. 26, 
 s. 6,) it is declared, that an estate ^wr autre vie in copyhold shall, if not 
 disposed of by the will of the grantee, go to his personal representative. 
 
 The court cannot imply a resulting trust in evasion of an act of parlia- 
 ment, and therefore if A., on purchasing a ship, take the transfer in the 
 name of B., the complete ownership, both legal and equitable, is in B.(«) 
 In order to enforce the navigation laws, and secure to British subjects 
 the exclusive enjoyment of British privileges, the Eegistry Acts require 
 an exact history to be kept of every ship, how far throughout her exist- 
 ence she has been British built and British owned, and if implied trusts 
 were pei-mitted the whole intent of the legislature might be indirectly 
 defeated. (r) It was at first contended that the acts were not meant to 
 apply to transfers by operation of law ; nor are they to transfers by mere 
 operation of law that could not be effected in the mode prescribed by 
 
 Jackson v. Jackson, 9 Ves. 597 ; Lyster v. Dolland, 1 Yes. jun. 434, 435, per Lord 
 Thurlow; and see York v. Eaton, 2 Freem. 23. 
 
 (Z) Lake v. Gibson, 1 Eq. Ca. Ab. 291, per Sir J. JekylL 
 
 (m) Lake v. Gibson, 1 Eq. Ca. Ab. 291, per Sir J. JekyH; Rigden v. Vallier, 3 
 Atk. 735. per Lord Hardwicke. 
 
 (n) 29 Car. 2, c. 3, s. 12. (o) Rundle v. Rundle, Amb. 152. 
 
 Ip) 1 Ch. Ca. 310. Ig) 1 Yern. 415. 
 
 (r) 2 Yern. 252, 264; S. C. Amb. 152. (s) Amb. 151. 
 
 (t) Goodright v. Hodges, 1 Watk. Cop. 228 ; and see RumboU v. Rumboll, 2 
 Ed. 15. 
 
 (m) Ex parte Yallop, 15 Ves. 60 ; Ex parte Houghton, 17 Ves. 251 ; Camden v. 
 Anderson, 5 T. R. 709. 
 
 (y) See Ex parte Yallop. 15 Ves. 66, 69.
 
 OF RESULTING TRUSTS. 219 
 
 the statutes, as in the transfer to executors, to assignees of bankrupts, &e. ; 
 but they do reach the case of transfers not by mere operation of law, 
 but connected with the acts of parties, and arising ex contractu. iic\ 
 
 Upon the same principle, while the papistry laws were in force, if A., 
 a papist, had purchased an estate in the name of B., the court could not 
 have presumed a resulting trust to A., which, as soon as raised, would 
 have become forfeitable to the state. (j;) 
 
 And so if a purchaser take a conveyance in the name of r:f:.7Aj^-| 
 ^another, with the view of giving him a vote for a member of L *" J 
 parliament, he cannot afterwards claim the beneficial ownership, for the 
 operation of such a right would render the original purchase fraudulent, (y) 
 
 As the Statute of rrauds(s) extends to creations or declarations of 
 trusts by parties only, and does not affect, indeed expressly excepts, 
 trusts arising by operation or construction of law, it is competent for the 
 real purchaser to prove his payment of the purchase-money by pa/'o?, 
 even though it be otherwise expressed in the deed. 
 
 In Kirk v. Webb(o) it was argued '^ there could be no trust unless 
 there were a declaration in the deed to that purpose, for by the statute 
 there could be no trust unless it were declared in writing ; that if it were 
 a resulting trust, it was made so by parol proof, which was directly con- 
 trary to the statute, and would open a door to all the mischiefs it was 
 intended to prevent; that it would introduce an utter uncertainty into 
 all men's titles, for the best title might be spoiled by proving the pur- 
 chase-money to be another person's ;" and the court refused to admit the 
 evidence, and the decision was followed in subsequent cases ■,{h\ however, 
 the doctrine, though supported by numerous precedents, has since been 
 clearly overthrown by the concurrent authority of the most distinguished 
 judges.(c) 
 
 The rule as at present established will not warrant the admission of 
 parol evidence, where an estate is purchased by an agent, and no part of 
 the consideration is paid by the employer ; for though an agent is a 
 trustee in equity, yet the *trust is one arising ex contractxi, i-jj^prv'-i 
 and not resulting by operation of law.(f/) The agent may be L "^ J 
 indicted for perjury in denying his character, and may be convicted, yet 
 the court has no power to decree the trust, (c) The employer, therefore, 
 
 [w) See Ex parte Yallop, 15 Ves. 68 : Ex parte Houghton, 17 Ves. 254. 
 
 [x) See Redington v. Redington, 3 Ridg. 184. 
 
 (y) Groves v. Groves, 3 Y. & J. 163, see 172, 173. 
 
 (2) 29 Car. 2, c. 3. (a) Prec. Ch. 84. 
 
 {b) Heron v. Heron, Pr. Ch. 163 ; S. C. Freem. 248 ; Skett v. Whitmore, Freem. 
 280; Kinder v. Miller, Pr. Ch. 172; and see Halcott v. Markant, Pr. Ch. 168; 
 Hooper v. Eyles, 2 Vern. 480; Xewton v. Preston, Pr. Ch. 103 ; Cox v. Bateman, 
 2 Yes. 19; Ambrose v. Ambrose, 1 P. W. 321 ; Deg v. Deg, 2 P. W. 414. The 
 earlier case of Gascoigne v. Thwing, 1 Yern. 366, accorded with the modern 
 doctrine. 
 
 (c) Ryall V. Ryall, 1 Atk. 59; S. C. Amb. 413; Willis v. Willis, 2 Atk. 71; 
 Bartlett v. Pickersgill, 1 Ed. 515 ; Lane v. Dighton, Amb. 409 ; Knight v. Pechej, 
 1 Dick. 327 ; S. C. cited from MS. 3 Vend. & Purch. 258 ; Groves v. Groves, 3 Y. & 
 J. 163; Lench v. Lench, 10 Yes. 517. 
 
 (d) Bartlett v. Pickersgill, 1 Ed. 515 ; Rastel v. Hutchinson, 1 Dick. 44; Lamas 
 V. Bayly, 2 Yern. 627 ; Atkins v. Rowe, Mose. 39 ; S. C. Cas. Dom. Proc. 1730. 
 
 (e) Bartlett V. Pickersgill, 1 Ed. 517.
 
 220 LEWIX ON THE LAW OF TRUSTS, ETC. 
 
 as he cannot profit by the conviction, is not prevented by interest from 
 beino" a witness against the agent.(/) 
 
 And parol evidence, where admitted, must prove the fact very 
 clearly ;{g) though no objection lies against the reception of mere cir- 
 cumstantial evidence, as that the circumstances of the pretended pur- 
 chaser were so mean as to make it impossible he should have paid the 
 purchase-money himself.(A) 
 
 Should the nominal purchaser deny the trust by his answer, there 
 seems to be no reason why parol evidence should not be admitted to esta- 
 blish the fact against him ; for, before the Statute of Frauds, parol evi- 
 dence was undoubtedly admissible, and, as trusts by operation of law are 
 expressly excepted from the statute, by what rule is parol evidence to be 
 excluded ?(A But the solemnity of the defendant's oath will of course 
 require a considerable weight of evidence to overcome its impression. (Z:) 
 
 It is laid down by Mr. Sanders, that " if a person at his death leave 
 any papers disclosing the real circumstances of the case, the court will 
 raise the trust even against the express declaration of the purchase- 
 deed. "(^ We have seen that, according to the latest authorities, parol 
 evidence is in ordinary *cases admissible against the language 
 L -1 of the purchase-deed ; but, if Mr. Sander's opinion to the con- 
 trary(wi) were well founded, it does not appear how mere papers would 
 satisfy the requisitions of the statute ; for, to have that effect, the writ- 
 ings ought also to be signed hy the party. The cases of Ryall v. Ryall(tt) 
 and Lane v. Dighton,(o) which are cited for the position, do not at all 
 turn upon the distinction suggested. 
 
 It is observed by the same writer, that, " after the death of the sup- 
 posed nominal purcliaser, parol proof alone can in no instance be admitted 
 against the express declaration of the deed;"(p) but the cases relied 
 upon in support of this doctrine(^) do not distinguish between proofs in 
 a person's lifetime and after his decease : they are certainly authorities 
 for the exclusion of parol evidence universall}', but in this respect, as 
 before noticed, they have been subsequently overruled. It would seem, 
 upon principle, that the death of the nominal purchaser cannot affect 
 
 (/) Kingv. Boston, 4 East, 5T2. 
 
 (g) Gascoigne v. Thwing, 1 Vern. 306; Halcott v. Markant, Pr. Ch. 168; Willis 
 V. Willis, 2 Atk. 71 ; Goodright v. Hodges, 1 Watk. Cop. 229, per Lord Mansfield; 
 Groves v. Groves, 3 Y. & J. 163 ; and see Rider v. Kidder, 10 Ves. 364. 
 
 (A) Willis V. Willis, 2 Atk. 71, per Lord Hardwicke ; and see Lench v. Lench, 
 10 Ves. 518 ; AVilkins v. Stevens, 1 Y. & C. Ch. Ca. 431. 
 
 [i) In Bartlett v. Pickersgill, 1 Ed. 515, where the defendant denied the trust, 
 Lord Henley said, if the plaintiff had paid any part of the purchase-money, be 
 would have admitted the evidence ; and see Edwards v. Pike, 1 Ed. 267. Mr. 
 Sanders, (Uses and Trusts, c. 3, s. 7, div. 2,) dissents from the doctrine ; but the 
 authorities cited by him to the contrary do not appear to warrant his conclusion. 
 
 [k) See Cooth v. Jackson, 6 Ves. 39. 
 
 [1) Uses and Trusts, c. 3, s. 7, div. 2. 
 
 (to) Uses and Trusts, c. 3, s. 7, div. 2. 
 
 (n) Amb. 413. (o) Arab. 409. 
 
 {p) Uses and Trusts, c. 3, s. 7, div. 2. 
 
 (?) Kirk V. Webb, Pr. Ch. 84; S. C. Freem. 229; Heron v. Heron, Pr. Ch. 163; 
 Halcott V. Markant. id. 168 ; Kinder v. Miller, id. 172; S. C. 2 Vern. 440; Deg v. 
 Deg, 2 P. W. 414. per Lord King.
 
 OF RESULTING TRUSTS. 221 
 
 the admissihiltfy of parol testimony, whatever effect it may have in de- 
 tracting from its loeight. 
 
 In the question, whether a purchase in ^he name of a third person 
 can be established by parol testimony is also involved the question, 
 whether trust-money can be followed into land by parol. A purchase 
 with trust-money is virtually a purchase paid for by the cestuis que trust; 
 and on the ground that such a purchase is a trust resulting by operation 
 of law, and not within the purview of the Statute of Frauds, it has been 
 settled that parol evidence is clearly admissible. (?•) 
 
 On the other hand, as the trust results to the real purchaser by pre- 
 sumption of law, which is merely an arhitrary implication in the 
 absence of reasonable jiroof to the contrary, the nominal purchaser is at 
 liberty to rebut the presumption by *the production of parol evi- 1-^0^7-1 
 dence showing the intention of conferring the beneficial in- L J 
 terest.(s) And as he may repel the presumption in toto, so may he in 
 part ; as by proving the purchaser's intention to permit the legal tenant 
 to enjoy beneficially for life.(^) 
 
 And when it has been once ascertained what was the understanding 
 of the parties at the time of the purchase, it is not competent to the real 
 purchaser to put a diffierent construction upon the instrument at any 
 subsequent period ;(?i) and even if under such circumstances the legal 
 tenant agreed afterwards to execute a conveyance to the person who paid 
 the money, the court would not enforce the contract, if merely volun- 
 tary, (t;) The real purchaser may also be barred of his interest by laches, 
 for the presumption of a resulting trust will not be raised, after a great 
 length of time, in opposition to the evidence arising from actual enjoy- 
 ment. (?f) 
 
 II. Where the purchase is made hy a father in the name of his child. 
 
 In this case, instead of a resulting trust, the presumption of law is, 
 that a provision was intended. (.r) The grounds of this doctrine are thus 
 stated by Lord Nottingham :(^) — 
 
 1. " The natural consideration of blood and affection is so apparently 
 
 (r) Lench v. Lench, 10 Yes. 517, per Sir W. Grant ; Rjall v. Ryall, 1 Atk. 59 ; 
 S. C. Amb. 413 ; Lane v. Dighton, Amb. 409 ; Balgnej- v. Hamilton, Amb. 414 ; 
 Trench v. Harrison, 17 Sim. 111. 
 
 (5) Goodright v. Hodges, 1 Watk. Cop. 227; S. C. Lofft, 230 ; Rider v. Kidder, 
 10 Ves. 364 ; Rundle v. Rundle, 2 Vern. 252, 264; Taylor v. Taylor, 1 Atk. 386 ; 
 Redington v. Redington, 3 Ridg. 106; see 165, 177, 178. 
 
 {t) Rider v. Rider, 10 Ves. 360 ; see 368 ; Benbow v. Townsend, 1 M. A; K. 506. 
 
 lu\ Groves v. Groves, 3 Y. & J. 172, per Alexander, C. B. 
 
 \v) Groves v. Groves, 3 Y. & J. 163. 
 
 \iv) Delane v. Delane, 7 B. P. C. 279 ; and see Groves v. Groves, 3 Y. & J. 172. 
 
 (z) Dyer v. Dyer, 2 Cox, 93 ; S. C. 1 Watk. Cop. 219, per Eyre, C. B.; Grey v. 
 Grey, 2 Sw. 597 ; S. C. Finch. 340, per Lord Nottingham ; Sidmouth v. Sidmouth, 
 2 Beav. 454; per Lord Langdale ; Redington v. Redington, 3 Ridg. 176, per Lord 
 Loughborough ; Christy v. Courteuay, 13 Beav. 96 ; Elliot v. Elliot, 2 Ch. Ca. 
 231, agreed; Bedvrell v. Froome, cited 2 Cox, 97, and 1 Watk. Cop. 224, per Sir 
 T. Sewell ; Goodwright v. Hodges, 1 Watk. Cop. 228, per Lord Mansfield ; Pole v. 
 Pole, 1 Ves. 76, per Lord Hardwicke ; Lamplugh v. Lamplugh, 1 P. W. Ill, 2d 
 point; Woodman v. Morrel, 2 Freem. 33, per Cur.; Murless v. Franklin, 1 Sw. 17, 
 18, per Lord Eldon ; Finch v. Finch, 15 Ves. 50, joer eundcm ; Fearne's P. W. 
 327, &c. 
 
 {y) Grey v. Grey, 2 Sw. 598. 
 
 February, 1858. — 15
 
 222 LEWIN ox THE LAW OF TRUSTS, ETC. 
 
 r*onQ-i predominant, that those acts which would imply a *trust in a 
 [ -'^^J strano-er will not do so in a son; and, ergo^ the father who would 
 check and control the appearance of nature, ought to provide for himself 
 by some instrument or some clear proof of a declaration of trust, and not 
 depend upon an implication of law. 
 
 2. " All the books are agreed on this point, that a feoffment to a 
 strano-er without a consideration raised a use to the feoffor, but a feoff- 
 ment to the son without other consideration raised no use by implication 
 to the father, for the consideration of blood settled the use in the son, 
 and make it an advancement. How can this court justify itself to the world 
 if it should be so arbitrary as to make the law of trusts differ from the 
 law of uses in the same case ? 
 
 3. " Again, as land can never lineally ascend, so neither shall the 
 trust of land lineally ascend where it is left to the presumption of law ]{z) 
 for the reason why laud doth not lineally ascend is, not, as my Lord 
 Coke says, from natural philosophy, qxiia gravia deorsum, but from 
 moral philosophy, quia amor dtscevdit non ascend it, and from divinity, 
 because fathers are bound to provide for their children, but children do 
 not provide for their fathers : therefore, when a father, according to his 
 duty, has provided for his son, it were hard to take away that provision 
 by a constructive trust." 
 
 "The circumstance," said Lord Chief Earon Eyre, "of one or more 
 of the nominees being a child or children of the purchaser, is held to 
 operate by rchiitting the resulting trust ; and it has been determined in 
 so many cases that the nominee being a child shall have such operation 
 as a circibmstance of evidence, that it would be disturbing land-marks if 
 we suffered either of these propositions to be called in question; — 
 namely. That such circumstance shall rebut the resulting trust; and, 
 That it shall do so as a circumstance of evidence. I think it would have 
 been a more simple doctrine, if the children had been considered as 
 purchasers for valuable consideration. This way of considering it would 
 have shut out all the circumstances of evidence which have found their 
 r^-^OQI ^^y ^^^^ many of *the cases, and would have prevented some 
 L '^ -I very nice distinctions, and not very easy to be understood. Con- 
 sidering it as a circumstance of evidence, there must, of course, be evi- 
 dence admitted on the other side. Thus it was resolved into a question 
 of intent, which was getting into a very wide sea without very certain 
 guides."(a) 
 
 The difficulties arising from the light in which the question has been 
 thus viewed will amply appear from the numerous refined distinctions 
 upon which the court from time to time has been called upon to adjudi- 
 cate. 
 
 1. A distinction was formerly taken where the child was an infant ;(h) 
 for a parent, it was said, could scarcely have intended to bestow a sepa- 
 rate and independent provision upon one utterly incapable of undertaking 
 
 (2) This ground for the doctrine no longer exists — since the father, under the 
 late Inheritance Act, takes next after brothers and sisters. 
 (a) Dyer v. Dyer, 2 Cox, 94 ; S. C. 1 Walk. Cop. 218. 
 (6) 2 Freem. 128, c. 151 ; and see Binion v. Stone, id. 169: S. C. Nels. 68.
 
 OF RESULTING TRUSTS. 223 
 
 the management of it. But still more improbable was the supposition 
 that an infant should have been selected as a trustee,(f) and accordingly 
 the notion has long since been overruled ;(t?) nay, the infancy of the 
 child is now looked upon as a circumstance particularly favourable. (e) 
 
 2. It was objected, that a reversionary/ estate, from the uncertainty of 
 the time when it would fall into possession, was not such a kind of inte- 
 rest as a parent would prudently purchase by way of provision for a 
 child; but mere proximity or remoteness of the enjoyment, whether the 
 reversion be expectant on the decease of the parent or a stranger, has 
 since been held clearly insufficient to countervail the general rule.(/) 
 
 3. A purchase in the Joint names of the father and son has met with 
 objections ; " for this," observes Lord Hardwick, " does not answer the 
 purpose of an advancement, as it entitles the father to the possession of 
 the whole till a division, and to a moiety absolutely even after a division, 
 besides the father's *taking a chance to himself of being a sur- p^^, „ 
 vivor of the other moiety : nay, if the sou die during his minor- L " J 
 ity, the father would be entitled to the whole by survivorship, and the 
 son could not prevent it by severance, he being an infant."(^) But 
 surely no improvidence can be justly charged on a parent who so settles 
 his estate, that if the son die a minor it shall revert to himself; that until 
 the marriage of the son or other pressing occasion, the father and son 
 shall possess an equal interest during their joint lives, with the right of 
 survivorship as to the whole ; that the son shall have the power, when 
 necessary, of settling one moiety of the estate, but shall leave the other 
 moiety to his parent. Whatever opinion may be entertained as to the 
 principle, the doubts above expressed by Lord Hardwicke can scarcely 
 be maintained in opposition to repeated decisions. (/i) A purchase in the 
 joint names of the son and a stranger is less favorable to the supposition 
 of an intended advancement ;(i) but even here the right of the child is 
 now indisputably established.^^) However, the advancement cannot be 
 more extensive than the legal estate in the child ^(Pj and therefore the 
 stranger, quatemts the legal estate vested in him, must hold upon trust 
 for the father. («i) 
 
 4. It is the custom, in many manors, to make grants for lives succes- 
 sive. Should a father pay the fine upon a grant to himself and his two 
 sons, shall this be held an advancement or a trust ? Upon the difficulty 
 of this case. Lord Chief Baron Eyre has remarked, "When the lessees 
 
 (c) See supra, p. 39. 
 
 {d) Lamplugh v. LampluEch, 1 P. W. Ill ; Lady Gorge's case, cited 2 Sw. 600 ; 
 Skeats v. Skeats, 2 Y. & C. Ch. Ca. 9 ; Christy v. Courtenay, 13 Beav. 96 ; Collin- 
 son V. CoUinson, 3 De G. M. & G. 403 ; Mumma v. Mumrna, 2 Vera. 19 ; Finch 
 V. Finch, 15 Ves. 43, &c. 
 
 (e) Fearne's P. W. 327. 
 
 (/) RumboU v. Rumboll, 2 Ed. 17, per Lord Henley; Finch v. Finch, 15 Ves. 
 43 ; Murless v. Franklin, 1 Sw. 13. 
 
 {g) Stileman v. Ashdown, 2 Atk. 480 ; and see Pole v. Pole, 1 Ves. 76. 
 
 {h) Scroope v. Scroope, 1 Ch. Ca. 27; Back v. Andrews, 2 Vern. 120; Grey v. 
 Grey, 2 Sw. 599, and cases there cited. 
 
 (i) See Hayes v. Kingdonie, 1 Vern. 34. 
 
 {k) Lamplugh v. Lamplugh, 1 P. "W. Ill; Kingdome v. Bridges, 2 Vern. 67. 
 
 (l) See Rumboll v. Rumboll, 1 Ed. 17. 
 
 {m) See Kingdome v. Bridges, 2 Vern. 67; Lamplugh v. Lamplugh, 1 P. W. 112,
 
 094 LEWIN OX THE LAW OF TKUSTS, ETC. 
 
 are to take snccessivh, it is said, that as the father cannot take the whole 
 in his name, but must insert other names in the lease, then the children 
 shall be trustees for the father. And to be sure, if the circumstance of 
 the child being the nominee is not decisive the other way, there is a great 
 deal of weight in this observation. There may be many prudential rea- 
 
 \-.-, sons for putting in the life *of a child in preference to any other 
 L ^ J person ; and if in that case it is to be collected from circum- 
 stances whether an advancement was meant, it will be difl&cult to find 
 such as will support that idea. To be sure, taking the estate in the name 
 of a child, which the father might have taken in his own, affords a strong 
 ar<^umeDt of such an intent ; but where the estate must necessarily be 
 taken to him in succession, the inference is very different. "(71) And in 
 accordance with this reasoning was decided the case of Dickinson v. 
 Shaw -Jo) but in Dyer v. Dyer(p) the notion was overruled, as savouring 
 too much of refinement ; and so at the present day it must be considered 
 as settled. (5) 
 
 5. It may happen, that the child in whose name the purchase is taken 
 may have been already provided for, a circumstance of very considerable 
 weight in rebutting the presumption of further advancement. "The 
 rule of equity," said Lord Chief Baron Eyre, " as recognized in other 
 cases, is, that the father is the only judge on the question of a son's pro- 
 vision, and therefore the distinction of the son being provided for or not 
 is not very solidly taken. "(/•) However, the distinction has been relied 
 upon in several cases, fs) and has been repeatedly recognised by the high- 
 est authorities. (?) At the same time, it must be noticed that the prior 
 advancement of the child has always been accompanied with some addi- 
 tional circumstance that tended to strengthen the presumption that no 
 further provision was designed )(u\ and Lord Loughborough laid down 
 the general rule to be, that a purchase made by a father in the name of 
 a son, already fully advanced and established by him, not urns, but might 
 be a trust for the father. (r) 
 
 r*9191 ^^^ '^^ ^^^^ ^y Lord Chief Baron Gilbert, that "if a father 
 '-"'"'-' purchase in the name of a son iclio is of full age, v:liich hy our 
 law is an emancipation out of the pioxoer of the father there if the father 
 take the profits, &c., the son is a trustee for the father."(?i') But for this 
 opinion there appears to be not the slightest ground. (x) The provision 
 must exist not by a fiction of law but hona fide and substantially; as, 
 
 (n) Dyer v. Dyer, 2 Cox, 95 ; S. C. 1 Watk. Cop. 221. 
 
 (0) Cited 2 Cox, 95 ; 1 Watk. Cop. 221. 
 
 [p) 2 Cox, 92 ; 1 Watk. Cop. 216. 
 
 [q) Swift T. Davis, 8 East, 354, note (a) ; Fearne's P. W. 327 ; Skeats v. Skeats, 
 2 Y. & C. Ch. Ca. 9. 
 
 [r) Dyer v. Dyer, 2 Cox, 94 ; S. C. 1 Watk. Cop. 220. 
 
 («) Elliot V. Elliot, 2 Ch. Ca. 231 ; Pole v. Pole, 1 Yes. 76. 
 
 [t) See Grey v. Grey, 2 Sw. 600 ; S. C. Finch, 341 ; Lovd v. Read, 1 P. W. 608; 
 Redington v. Redington, 3 Ridg. 190 ; Gilb. Lex Prat. 271. 
 
 (m) Pole V. Pole, Elliot v. Elliot, ubi supra ; and see Grey v. Grey, 2 Sw. 600 ; 
 Gilb. Lex Prfet. 271. 
 
 {v) Redington v. Redington, 3 Ridg. 190 ; and see Sidmouth v. Sidmouth, 2 
 Beav. 456. 
 
 (w) Lex Prset. 271. 
 
 (x) In Grey v. Grey, (ubi supra), for instance, the son was of age.
 
 OF RESULTING TRUSTS. 225 
 
 said Lord Nottingham, " if the son be married in his father's lifetime, 
 and with his father's consent, and a settlement be thereupon made, 
 whereby the son appears to be fully advanced, and in a manner emanci- 
 pated. "(y) A provision in part will not have the effect of rebutting the 
 presumption of advancement ;{£) and the settlement of a reversionary 
 estate upon the son will not be deemed a provision, for he might starve 
 before it fell into possession. (a) 
 
 6. Suppose the father continues, after the purchase, in the perception 
 of the rents and profits, and exerts other acts of ownership, then, if the 
 son be an infant, it is said, as the parent is the natural guardian of the 
 child, the perception of the profits or other exercise of dominion shall be 
 referred to that ground, and the right of the son shall not be prejudiced, 
 and so in numerous cases the point has been adjudged ;{h\ and it will not 
 vary the ease if the son sign receipts in the name of the father, for during 
 his minority he could give no other receipts that would discharge the 
 tenants who hold by lease from the father. (c) Lord Chief Baron Eyre 
 has expressed himself dissatisfied with this reasoning in reference to the 
 guardianship, and puts the question, <' If the father take the rents as 
 guardian of his son, would the court sustain a bill by the son against the 
 father for these rents ? He should think it pretty difiicult to succeed in 
 such a bill." (t?) Lord Nottingham has referred *the decisions r*9-|qn 
 to a higher ground. " Some," he said, " have taken the differ- L "^ J 
 ence, that where the fiither has colour to receive the rents as guardian, 
 there perception of profits is no evidence of a trust : otherwise it would 
 be if the perception of profits were without any such colour. Plainly the 
 reason of the resolutions stands not upon the guardianship, but upon the 
 presumptive advancement, for a purchase in the name of an infant 
 stranger with perception of profits, &c., will be evidence of a trust. "(e) 
 
 7. Suppose the father purchases in the name of a son who is adult, and 
 then, without contradiction from the son, takes the rents and profits, and 
 exerts other acts of ownership ; even here it has been determined the 
 right of the son will prevail. A stronger instance can hardly be con- 
 ceived than occurred in the very leading case of Grey v. Grey,(/) before 
 Lord Nottingham. We have his lordship's own manuscript of this case, 
 and the circumstances are thus stated: — '^The evidence to prove this 
 purchase in the name of the son to be a trust for the father consists of, 
 1st, father possessed the money; 2dly, received the profits twenty years; 
 odly, made leases; 4thly, took fines; 5thly, enclosed part in a park; 
 6thly, built much ; 7thly, provided materials for more ; Sthly, directed 
 Lord Chief Justice North to draw a settlement ; 9thly, treated about the 
 
 (y) Grey v. Grey, 2 Sw. 600. 
 
 {z) lb.; Redington v. Redington, 3 Ridg. 190. 
 
 [a) Lamplugh v. Lamplugb, 1 P. "W. 111. 
 
 \b) Gorge's case, cited Cro. Car. 550, and 2 Sw. 600 ; Mumma v. Mumma, 2 
 Vern. 19; Taylor v. Taylor, 2 Atk. 386; Lamplugh v. Lamplugh, 1 P. W. Ill; 
 aud see Stileman v. Ashdown, 2 Atk. 480 ; Loyd v. Read, 1 P. W. 608 ; Christy 
 V. Courtenay, 13 Bear. 96. 
 
 (c) Taylor v. Taylor, 1 Atk. 336. 
 
 {d) Dyer v. Dyer, 2 Cox, 94; S. C. 1 Watk. 220. 
 
 (e) Grey v. Grey, 2 Sw. 600. (/) 2 Sw. 594; Finch, 333.
 
 226 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 sale of it :"((/) yet for all this, it was decided, after long and mature 
 deliberation, that the consideration of blood and affection was so predo- 
 minant, that the father's perception of rents and profits, or making leases, 
 or the like acts, which the son, in good manners, did not contradict, 
 could not countervail it.(7i)' The propriety of this decision, upon prin- 
 ciple independently of authority, has been called into question. " Admit- 
 ting,'' it is said, " that they are subsequent acts, whereas the intention 
 of the father in taking the purchase in the son's name must be proved 
 by concomitant acts, yet they are pretty strong acts of ownership, and 
 assert the right, and coincide with the possession and enjoyment."(Q 
 *It might perhaps be successfully contended, that Lord Notting- 
 L "^ J ham's determination was founded upon the more enlarged view 
 of the subject in respect even of j)rtnc*)j)?e; however, the point must at 
 the present day be considered as settled at least upon authority, if any 
 point can be considered as settled after repeated decisions. (Z:) 
 
 The advancement of the son is a mere question of intention, and there- 
 fore facts antecedent to or contemjxjraneous icith the purchase,(^) or so 
 immediately/ afferii as to constitute part of the same transaction,(?rt) may 
 properly be put in evidence for the purpose of rebutting the presumption. 
 Thus it will not be held an advancement, if, on a grant of copyholds to 
 a father and his son for their lives sxiccessive, the father at the same court 
 surrender the copyholds to the use of his will,(«) or obtain a license 
 from the lord to lease for years,(o) or take possession by some overt act 
 immediately consequential upon the purchase. (7)) 
 
 So the father may prove a parol declaration of trust by himself, either 
 before or at the time of the purchase, not that it operates by way of de- 
 claration of trust (for the Statute of Frauds would interfere to prevent 
 it ;) but 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. 
 l-^_^- *0f course the father cannot defeat the advancement by any 
 L J subsequent declaration of his intention. (§') 
 
 (g) 2 Sw. 596. (A) See 2 Sw. 599. 
 
 (i) Dyer v. Dyer, 2 Cox, 95 ; S. C. 1 Walk. Cop. 220. 
 
 (k) Woodman v. Morrel, 2 Freem. 32, reversed on the re-hearing (see note by 
 Hoveuden) ; Shales v. Shales, ib 252 ; Sidmouth v. Sidmouth, 2 Beav. 447 ; and 
 see Elliot v. Elliot, 231 ; but see Loyd v. Read, 1 P. W. 607 ; Redington v. Red- 
 ington, 3Ridg. 190; Murless v. Franklin, 1 Sw. 17 ; Scawin v. Scawin, 1 Y. & C. 
 Ch. Ca. 65. 
 
 (l) See Collinson v. CoUinson, 3 De Gex, Mac. & Gord. 409 ; Murless v. Frank- 
 lin, 1 Sw. 17, 19; Sidmouth v. Sidmouth, 2 Beav. 447 ; Loyd v. Read, 1 P. W. 
 607 ; Taylor v. Alston, cited 2 Cox, 96, 1 Watk. Cop. 223 ; Redington v. Reding- 
 ton, 3 Ridg. 177; Grey v. Grey, 2 Sw. 594; Rawleigh's case, cited Hard. 497; 
 Baylis v. Newton, 2 Vern. 28 ; Shales v. Shales, 2 Freem. 252 ; Scawin v. Scawin, 
 1 Y. & C. Ch. Ca. 65 ; Christy v. Courtenay, 13 Beav. 96. 
 
 (m) Redington v. Redington, 3 Ridg. 196, per Lord Loughborough. 
 
 (n) Prankerd v. Prankerd, 1 S. & S. 1. 
 
 (0) Swift v. Davis, 8 East, 354, note {a). 
 
 {p) Lord Eldon could scarcely have meant more than this, when he observed, 
 "Possession taken by the father at the time would amount to such evidence." 
 Murless v. Franklin, 1 Sw. 17. 
 
 (y) See Elliot v. Elliot, 2 Ch. Ca. 231 ; Finch v. Finch, 15 Ves. 51 ; Woodman 
 v. Morrell, 2 Freem. 33 ; Birch v. Blagrave, Amb. 266 ; Gilb. Lex Prait. 271 ; Sid-
 
 OF RESULTING TRUSTS. 227 
 
 On the other hand, the son may produce parol evidence to prove the 
 intention of advancement,(r) and a fortiori such evidence is admissible 
 on his side, as it tends to support both the legal operation and equitable 
 presumption of the instrument. ^s) And it seems the subsequent acts and 
 declarations of the father may be used against him by the son, though 
 they cannot be used in his favour, {t^ but the subsequent acts or decla- 
 rations of the son cannot be used against him by the father ; for the ques- 
 tion is, what did the father mean by the purchase ? Nothing, there- 
 fore, that the son could do or say (short of a disclaimer) can alFect his 
 interest, except, indeed, he was a party to the purchase, and his con- 
 struction of the transaction may be taken as an index to the intention cf 
 the father, (w) 
 
 From the manner in which the court has disposed of the several dis- 
 tinctions we have been considering, one general principle is to be extracted 
 applicable to every case. " We think," said Chief Baron Eyre, " that 
 reasons which partake of too great a degree of refinement should not pre- 
 vail against a rule of property, which is so well established as to become 
 a land-mark, and which, whether right or wrong, should be carried 
 throughout j'Vz;) and Lord Eldon to the same eifect observed, <^ that the 
 court in Dyer v. Dyer meant to establish this principle, that the purchase 
 is an advancement prima facie, and in this sense, that this principle of 
 law and presumption is not to be frittered away by mere refinements. '7?6j 
 
 *The doctrine of advancement has been applied to the case of ^^^^ p-. 
 even an illegitimate son ;{x\ for it is said the principle is, that a L " J 
 father is under a moral duty to provide for his child, and as the obliga- 
 tion extends to the case of an illegitimate child, he is equally entitled to 
 the benefit of the presumption. (y) 
 
 It has been said that the presumption is not so strong in favour of a 
 daughter as of a son, because daughters are not generally provided for by 
 a settlement of real estate •,(z\ but the distinction has been contradicted 
 by more than one decision, and does not now exist. («) Advancement 
 will be presumed in the case of a wife,(b'j and the presumption will be 
 
 mouth T. Sidmouth, 2 Beav. 456 ; Skeats v. Skeats, 2 Y. & C. Ch. Ca. 9 ; Christy 
 V. Courtenay, 13 Beav. 96. 
 
 (r) Taylor v. Alston, cited 2 Cox, 96, 1 Watk. Cop. 223 ; Beckford v. Beckford, 
 Lofft, 490. 
 
 (s) See Taylor v. Taylor, 1 Atk. 386; Lamplugh v. Lamplugh, 1 P. W. 113 ; 
 Redington v. Redington, 3 Ridg. 182, 195. 
 
 (t) See Redington v. Redington, 3 Ridg. 195, 197; Sidmouth v. Sidmouth, 2 
 Beav. 455. 
 
 (u) See Murless v. Franklin, 1 Sw. 20 ; Pole v. Pole, 1 Ves. 76 ; but see Sid- 
 mouth V. Sidmouth, 2 Beav. 455 ; Scawin v. Scawin, 1 Y. & C. Ch. Ca. 65. 
 
 (v) 2 Cox, 98 ; 1 Watk. Cop. 226. (w) Finch t. Finch, 15 Ves. 50. 
 
 (x) Beckford v. Beckford, Lofift, 490 ; Fearne's P. W. 327. 
 
 (y) See Fonb. Eq. Tr. 123, note {i), 4th ed. 
 
 (z) Gilb. Lex Prset. 272. 
 
 (a) Lady Gorge's case, cited Cro. Car. 550, 2 Sw. 600 ; Jennings v. Selleck, 1 
 Vern. 467; and see Woodman v. Morrel, 2 Freem. 33; Clarke v. Danvers, 1 Ch. 
 Ca. 310. 
 
 (b) Kingdome v. Bridges, 2 Vern. 67 ; Christ's Hospital v. Budgin, id. 683 ; 
 Back V. Andrews, id. 120 ; Glaister v. Hewer, 8 Ves. 199, per Sir W. Grant ; Rider 
 V. Kidder, 10 Ves. 367, per Lord Eldon ; Gilb. Lex Pra?t. 272.
 
 228 LEWIN 0^- THE LAW OF TRUSTS, ETC. 
 
 tlie same where the purchase is made in the name of a grand-child,(c) of 
 a nephew,(cZ) and, it is conceived, even of a stranger in blood,(e) towards 
 whom the person purchasing has placed himself " i'/i loco parentis." 
 
 Where the purchase is held to be an advancement, and the purchase- 
 money has not been paid, it will be a charge on the father's assets as an 
 ordinary debt.(/) 
 
 Of course the doctrine of advancement applies to personal as well as 
 real estate; as where a father purchases stock in the name of his son. ((7) 
 
 In a recent case, where moneys were lent out in the name of a person 
 who was both son and solicitor of the owner of the sums lent, it was held 
 that the particular relation of solicitor prevented the application of the 
 general rule. (A) 
 
 [*217] *CHAPTER IX. 
 
 OF CONSTRUCTIVE TRUSTS. 
 
 A constructive trust is raised by a court of eqhity, wherever a person, 
 clothed icith a fidxiciary character, gains some ^^ersonal advantage hy 
 availing himself of his situation as trustee ;{^i^ for as it is impossible a 
 trustee should be allowed to make a profit by his office, it follows, that 
 so soon as the advantage in question is shown to have been acquired 
 through the medium of the trust, the trustee, however good a legal title 
 he may have, will be decreed in equity to hold for the benefit of his ces- 
 tui que trust. 
 
 The most common instance of a constructive trust occurs in the 
 renewal of leases ; the rule beiijg, that if a trustee,(Z:) or executor,^ or 
 even an executor de son tort,{ni\ renew a lease in his own name, he will 
 
 (c) Ebrand v. Dancer, 2 Ch. Ca. 26 ; and see Lojd v. Read, 1 P. W. 607 ; Cur- 
 rant V. Jago, 1 Coll. 2G5, note (c). 
 
 (d) Currant v. Jago, 1 Coll. 261. 
 
 (e) See the analogous class of cases in reference to double portions, Powys v. 
 Mansfield, 3 M. & Cr. 359, &c. 
 
 (/) Redington v. Redington, 3 Ridg. 106, see 200. 
 
 {g) Sidmouth v. Sidmouth, 2 Beav. 447. 
 
 \h) Garrett \. Wilkinson, 2 De Gex & Sm. 244. 
 
 (j) As to the meaning of the term " constructive trust,"' and the branch of such 
 trusts, reserved for description in a later chapter, see page 140, supra, and page 
 228, infra. 
 
 [k) Griffin v. Griffin, 1 Sch. & Lef. 354, per Lord Redesdale ; Pickering v. Vowles, 
 
 1 B. C. C. 198, per Lord Thurlow; Pierson v. Shore, 1 Atk. 480, per Lord Hard- 
 •wicke ; Nesbitt v. Trcdennick, 1 B. & B. 46, per Lord Manners ; Turner v. Hill, 11 
 Sim. 13, per Sir L. Shadwell. 
 
 {I) Walley v. Whalley, 1 Vern. 484 ; Holt v. Holt, 1 Ch. Ca. 190 : Abney v. Miller, 
 
 2 Atk. 597, per Lord Hardwicke; Killick v. Flexney, 4 B. C. C. 161 ; Pickering v. 
 Vowles, 1 B. C. C. 198, per Lord Thurlow; Luckin v. Rushworth, Finch. 392; 
 Anon. 2 Ch. Ca. 207 ; and see Mulvany v. Dillon, 1 B. & B. 409 ; Fosbrooke v. 
 Balguy, 1 M. & K. 226 ; Owen v. Williams, Amb. 734 ; Nesbitt v. Tredennick, 1 
 B. & B. 40, perXord Manners. 
 
 (m) Mulvany v. Dillon, 1 B. & B. 409.
 
 OF CONSTRUCTIVE TRUSTS. 229 
 
 be deemed in equity to be a trustee for those interested in the original 
 term. 
 
 The leading authority upon this subject is Sandford v. Keech, com- 
 monly called the Rumford Market Case.(?ft) A lessee of the profits of a 
 market had devised to a trustee for an infant, and the trustee applied 
 for a renewal on behalf of the infant, which was refused, on the ground 
 that there could *be no distress of the profits of a market, but j-^.^.. o-j 
 the remedy must rest singly in covenant, of which an infant was L " J 
 incapable. Upon this the trustee took a lease for the benefit of himself; 
 but Lord King said, " I must consider this a trust for the infant ; for I 
 very well see, if a trustee, on the refusal to renew, might have a 
 lease to himself, few trust estates would be renewed to cestui que use. 
 Though I do not say there is fraud in this case, yet he should rather 
 have let it run out than have had the lease to himself. This may seem 
 hard, that the trustee is the only person of all mankind who might not 
 have the lease, but it is very proper that rule should be strictly pursued, 
 and not in the least relaxed ; for it is very obvious what would be the 
 consequence of letting trustees have the lease on refusal to renew to ces- 
 tui que use." And so decreed that the lease should be assigned to the 
 infant. 
 
 Upon the same principle, if a person possessing only a partial interest 
 in a lease, as a tenant for life(?i) (though with an absolute power of 
 appointment, but which he does not exercise,)^©^ a mortgagee, (p) de- 
 visee subject to debts and Iegacies(2') or to an anuuity,^?-^ a joint- 
 tenant,(s) or partner,(^) renew the term upon his own account, he shall 
 hold for the benefit of all parties interested in the old lease ; for in con- 
 sideration of equity the subject of the settlement is not only the lease, 
 but also the right of renewal ; and no person taking only a limited 
 interest can avail himself of the situation in *which the settle- p^.^,p-. 
 ment has placed him to obtain a disproportionate advantage in L "^ J 
 derogation of the rights of other equal claimants. 
 
 Even where a testator was possessed of leaseholds, and devised all his 
 interest therein to A. for life, remainder to B., and the lease having 
 expired in the testator's lifetime, he was at his death a mere yearly 
 tenant, it was held that A., having renewed the lease, must hold it upon 
 
 (m) Sel. Ch. Ca. 61. 
 
 (w) Eyre v. Dolphin, 2 B. & B. 290 ; Rawe v. Chichester, Amb. Ylo; Coppin v. 
 Fernyhough, 2 B. C. C. 291; Pickering v. Vowles, 1 B. C. C. 197; Taster v. Mar- 
 riott, Amb. 668; Owen v. Williams, id. T34; James v. Dean, 11 Ves. 383; S. C. 
 15 Ves. 236; Kempton v. Packman, cited 7 Ves. 176; Giddings v. Giddings, 3 
 Russ. 241 ; Nesbitt v. Tredennick, 1 B. & B. 46, per Lord Manners ; Crop v. Norton, 
 9 Mod. 233 ; Buckley v. Lananze. LI. & G. Rep. t. Plunket, 327 ; Tanner v. Elwor- 
 thy, 4 Beav. 487 ; Waters v. Bailey, 2 Y. & C. Ch. Ca. 219. 
 
 (o) Brookman v. Hales, 2 V. & B. 45. 
 
 (p) Rushworth's case, Freem. 13; Nesbitt v. Tredennick, 1 B. & B. 4G, per Lord 
 Manners. 
 
 (g) Jackson t. Welsh, LI. & G. Rep. t. Plunket, 346. 
 
 (r) Winslow v. Tighe, 2 B. & B. 195; Stubbs v. Roth, id. 548; and see Webb 
 V. Lugar, 2 Y. & C. 247 ; Jones v. Kearney, 1 Conn. & Laws. 34. 
 
 (s) Palmer v. Young, 1 Vern. 276. 
 
 (t) Featherstonhaugh v. Fenwick, 17 Ves. 298; Ex parte Grace, 1 Bos. & Pul. 
 376.
 
 230 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 the limitations of the will, for the yearly tenancy was an interest capable 
 of transmission by devise ; and the tenant for life could not, by acting 
 upon the good-will that accompanied the possession, get the exclusive 
 benefit of a more durable term,(M) 
 
 But if a person devise a lease in strict settlement, and the lease expire 
 in his lifetime, and at the time of his death he is merely tenant at will, 
 or at sufferance, then, if the executor renew, he is not a trustee for the 
 devisees, for as there was no interest upon which the will could operate, 
 there was, in fact, no devise. (y) And so, where a testator possessed 
 leaseholds for years, and was in possession of other lands without title 
 under the mistaken impression that they were contained in the lease, and 
 devised the lands he held upon lease to A., his executrix, for life, with 
 remainder over, and A. obtained a lease of the lands not passed by the 
 will; it was ruled that no trust attached upon the term in favour of the 
 remainderman. (w) But although the devisees cannot claim in these 
 cases, the executor himself will not be allowed to keep the beneficial 
 interest. " The question," said Lord Eldon, '' is new, whether an exe- 
 cutrix, dealing with the opportunities which she derives by her succes- 
 sion, without title to the estate (which) a tenant by sufferance or at will 
 had held, is a trustee, for the devisee, who cannot say he took an interest 
 under the will, or whether it is to be said only that the advantage she 
 made of those opportunities should be for the general estate. The result 
 is this : I think it is impossible she could hold it for herself. Supposing 
 r*2201 ^'^°*''^^^ person, not the executrix, was residuary legatee, the 
 L """ J ^question I should think, would be in favour of that residuary 
 legatee, (the renewal) being a casual advantage from the dealing of the 
 executrix." (j:) 
 
 Neither can an agent,(?/) or other person acting under the authority 
 of a trustee, executor or tenant for life, renew for his own benefit ; for 
 '' there is nothing," said Lord Hardwicke, " the court has more adhered 
 to than that, if the tenant, or any person claiming from the tenant, apply 
 to renew, whether the new lease be granted to the same person or any 
 other, if the lessee in the new take in the right of him who ivas the oicner 
 of the old lease, he must take subject to all the equity to which the ori- 
 ginal lessee was liable."(^;) 
 
 And if, instead of taking a renewal himself, the trustee, executor, or 
 tenant for life, dispose of the right of renewal for a valuable considera- 
 tion, the purchase-money will be subjected in equity to the trusts of the 
 settlement; for if a person cannot appropriate the renewal to himself, 
 the court will not suffer him to sell.fa) 
 
 And in the preceding cases the rule of equity will not be varied, 
 
 (m) James v. Dean, 11 Ves. 383 ; S. G. 15 Yes. 236. 
 M See James v. Dean, 11 Ves. 391, 392. 
 [w) Rawe v. Chichester, Amb. 715. 
 
 {x) James v. Dean, 11 Ves. 392, per Lord Eldon. In Rawe v. Chichester, ubi 
 supra, the executrix was also residuary legatee. 
 
 Twiul ^"^'^■T; ^"'^''' ^ ^''^- ^ ^^^- ^^3 fand see Edwards v. Lewis, 3 Atk. 538 ; 
 Mulvany v. Dillon, 1 B. & B. 417. 
 
 [z) Edwards v. Lewis, 3 Atk. 538. (a) Owen v. Williams, Amb. 734.
 
 OF CONSTRrCTIVE TRUSTS. 231 
 
 because the lease bad not customarily been renewed,(Z/) or the period of 
 the old lease had actually expired, (c) or the renewal was for a different 
 term, or at a different rent,(f?) or instead of a chattel lease, was for 
 lives, (e) or other lauds were demised not comprised in the original 
 lease,(/) or the landlord refused to renew with the cestui qtie triist,((j) 
 or the co-trustees refused to concur in a renewal for the cestui' s que trust 
 benefit,(7i) *or the lessee, having purchased the immediate rever- r*221"| 
 sion, took the renewal from the superior landlord. (j) L 
 
 But where a lessee of lands in Ireland charged a lease with a jointure, 
 and then mortgaged it to Newcomen, and again to Nesbitt, and after- 
 ward the rent falling in arrear, the landlord recovered possession upon 
 ejectment, and the lessee allowed six months, (the period of redemption 
 by the lessee fixed by the statute) to pass without tendering the rent, 
 fines, and costs, and Nesbitt (who, as mortgagee, had three months longer 
 to redeem under the statute,) sent notice to the lessee that he would not 
 redeem ; but that if the lessee himself did not proceed, he should make 
 the best bargain he could with the landlord, and then offered to take a 
 new lease, to commence from the expiration of the three months, with a 
 proviso, that if any other of the parties interested should make a lodg- 
 ment before that time, the agreement should be void ; it was decided by 
 Lord Manners that the lease which was afterwards granted to the mort- 
 gagee was not bound by any trust for the mortgagor. " The principle," 
 said his lordship, " to be extracted from all the authorities amounts to 
 this, — that whenever a mortgagee, executor, trustee, or tenant for life, 
 gets an advantage, either by being in possession, or behind the back of 
 the party mortgagor, cestui que trust, or remainderman, he shall not re- 
 tain the same for his own benefit, but hold it in trust, — the new lease, 
 in any of those cases, will be considered as a graft upon the old one. 
 Here there is full notice given by the mortgagee that he will not redeem, 
 and he gives his reasons for it; he does not go behind the back of the 
 mortgagor, nor is he in possession, nor does he use any means of getting 
 to himself an advantage which belongs to another; and he cannot, as I 
 apprehend, be brought within the principles of those cases by which in 
 taking a new lease he becomes clothed with a trust. In all the eases 
 upon this subject, the party by being in possession obtained the renewal, 
 or it was done behind the back, or by some contrivance, or in fraud, of 
 those who were interested in the old lease, and there was either a rem- 
 nant of the old lease, or a tenant-right of renewal, on which the new 
 lease could be ^ingrafted. Here no part of Nesbitt's conduct p222"| 
 shows a contrivance ; nor was he in possession. All that Nesbitt 
 
 (b) See Featherstonhaugh v. Fenwick, 17 Ves. 298 ; Mulvauy v. Dillon, 1 B. & 
 B. 409; Eyre v. Dolphin, 2 B. & B. 290 ; Killick v. Flexney, 4 B. C. G. 161. 
 
 (c) Edwards v. Lewis, 2 Atk. 538, per Lord Hardwicke. 
 
 (rf) Mulvany v. Dillon, 1 B. & B. 409; James v. Dean, 7 Ves. 383 ; S. C. 15 Ves. 
 236, &c. 
 
 (e) Eyre v. Dolphin, 2 B. & B. 299. 
 
 (/) Giddiugs v. Giddings, 3 Russ. 241. But the lease of the additional lands 
 ■will not be a graft, Acheson v. Fair, 2 Conn. & Laws. 208. 
 
 Iff) Keech v. Sandford, Sel. Ch. Ca. 61; Griffin r. Griffin. 1 Sch. & Lef. 353. 
 
 (A) Blewett v. Millett, 7 B. P. C. 3G7. 
 
 (i) Giddings v. Giddings, 3 Russ. 241.
 
 232 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 treated for was a new lease, giving, however, full opportunity to the 
 lessee to dispose of his interest, or to renew, if he was enabled to do so. 
 It was urged, that a court of equity will relieve against penalties and 
 forfeitures ; but those are cases of contract and introduced by the acts 
 of the parties themselves, not where a forfeiture arises under the provi- 
 sion of an act of parliament, and where the lessee has so totally forfeited 
 his interest as not to be relievable either in law or in equity." And 
 his lordship appears to have determined the case upon the general princi- 
 ple; for he observed, in conclusion, <^But I have no occasion to touch 
 upon the act of parliament. "(A-) 
 
 A trustee or executor who has renewed a lease has a lien upon the 
 estate for the costs and expenses of the renewal, with interest ;[/) and 
 where lands are taken under the new lease that were not comprised in 
 the original lease^ the court will apportion the expenses according to the 
 value of the respective lands. (??i) The trustee will also be allowed for 
 money subsequently laid out in lasting improvements,(?i) though made 
 duiiug the suit for recovering the lease. (o) 
 
 In the case of a renewal by tenant for life, if he put in his own life, 
 he of course can have no claim to reimbursement,(p) but if he put in 
 the life of another, the expenses will be apportioned at the death of the 
 tenant for life according to the time of his actual enjoyment of the re- 
 newed interest ;((/) and he will be a creditor on the estate for the appor- 
 tionment, though the remaindermen be his own children, who resist the 
 claim on on the ground of advancement. (;•) 
 
 r*99«n ^^ t^*^ ^^^^ of ^ testator devising all his interest in leaseholds 
 L ■'"' J *subject to an annuity, the question of the annuitant's contribu- 
 tion has been differently regarded by different judges. In Maxwell v. 
 Ashe(s) Sir John Strange decided that the annuitant was 7iot bound to 
 contribute. In Moody v. Matthews,(A where a feme sold an annuity 
 to A. for his life, out of tithes held by her upon lease, and covenanted 
 to pay the annuity, and that the tithes should continue subject to it 
 during the life of A., and the feme married and died, and the husband, 
 who took the term by survivorship, renewed at his own expense. Sir W. 
 Grant determined that the annuitant was not to be called upon to contri- 
 bute, for that would be to make him pay the consideration twice, and 
 he said the case of Maxwell v. Ashe was decisive. On the other hand, 
 it was ruled by Lord Manners, in the case of a will, that the annuitant 
 must contribute in proportion to his interest in the property ; for though 
 
 (k) Nesbitt T. Tredennick, 1 B. & B. 29. 
 
 {I) Holt V. Holt, 1 Ch. Ca. 190; Rawe v. Chichester, Amb. 715, see T20; Coppin 
 v. Fernyhough, 2 B. C. C. 291 ; Lawrence v. Maggs, 1 Ed. 453 ; Pickering v. Vowles, 
 1 B. C. C. 197 ; James v. Dean, 11 Yes. 383 ; Kempton v. Packman, cited 7 Ves. 
 176. ,11 
 
 {m) Giddings v. Giddings, 3 Russ. 241. 
 («) Holt V. Holt, Lawrence v. Maggs, ubi supra, 
 (o) Wallej V. Whalley, 1 Vern. 484. 
 
 (;;) Lawrence v. Maggs, 1 Ed. 453. (q) See infra. 
 
 (r) Lawrence v. Maggs, 1 Ed. 453. 
 («) Maxwell v. Ashe, cited 7 Ves. 184. 
 
 (0 7 Ves. 174; and see Jones v. Kearnev. 1 Conn. & Laws. 47; Thomas v. 
 Burne, 1 Dru. cv- Walsh, 657.
 
 OF COX STRUG TIVE TRUSTS. 233 
 
 the testator had given no direction upon this point, it was incident to 
 this sort of tenure. (?/) At the time of this decision his lordship was not 
 aware of the cases before Sir J. Strange and Sir "W. Grant; but on a 
 subsequent occasion, when the same point again rose before him, he ad- 
 hered to the same opinion, notwithstanding the authority, for " all the 
 legatees," he said, "appear to have been equally the objects of the testa- 
 tor's favour. Could it have been his intention that one of them should 
 alone bear the expense of the renewal, and that the others should receive 
 the full amount of their annuities without any deduction ?"(w) 
 
 In making the assignment to the cestui que trust the trustee will also 
 be indemnified against the personal covenants which he entered into with 
 ihe lessor ;(«') and on his own part must clear the lease of all incumbran- 
 ces created by him, except under-leases at rack-rent Y.r) 
 
 The trustee must also account to the cestui que trust for the j-^.^.^,., 
 *mesne rents and profits which he has received from the estate,(^) L "' J 
 and also for any sub-fines that may have been paid to him by under- 
 lessees, (s) And the cestui, que trust, though the lease which was the 
 ground of his equity has since actually expired, may still file a bill for 
 an account of the rents and profits. (a) In the case of a renewal by 
 tenant for life, the account will of course be restricted to the period 
 since the tenant for life's decease. (i) 
 
 The cestui que trxist may pursue his remedy not only against the original 
 trustee, executor, or tenant for life, and volunteers claiming through 
 them;(c) but also against a purchaser, with notice express or implied of 
 the plaintiff's title •,{d\ and a purchaser will be deemed to have had 
 notice if the lease assigned to him recited the surrender of a former 
 lease which recited the surrender of a previous lease, in which mention 
 was made of the settlement under which the cestui que trust claims ;(e) 
 and the volunteer or purchaser with notice will not be helped by a fine 
 levied, fy) or even by a release from the cestui que trust, if executed by 
 him while in ignorance of the facts of the case.(^) However, a purcha- 
 ser will stand in the place of his assignor in respect of any allowances for 
 expenses incurred in the renewal. (A) 
 
 A cestui que trust will be barred of his remedy if he be guilty of long 
 acquiescence, as, it seems in one case, for a period of fifteen years. (/] 
 
 {u) Winslow V. Tighe, 2 B. & B. 195. (r) Stubbs v. Roth, 2 B. & B. 548. 
 
 {iv) Giddings v. Giddings, 3 Russ. 241 ; Keech v. Sandford, Sel. Ch. Ca. 61. 
 
 {x) Bowles V. Stewart, 1 Sell. & Lef. 209, see 230. 
 
 (y) Giddings v. Giddings, Keech y. Sandford, nbi supra ; Mulvany v. Dillon, 1 
 B. & B. 409; Walley v. Whalley, 1 Vern. 484; Lucken v. Rushworth, Finch, 392; 
 Blewett V. Millett, 7 B. P. C. 367. {z) Rawe v. Chichester, Amb. 715, see 720. 
 
 (a) Eyre v. Dolphin, 2 B. & B. 290. 
 
 {b) James v. Dean, 11 Ves. 383, see 396 ; Giddings v. Giddings, 3 Russ. 241. 
 
 (c) Bowles V. Stewart, 1 Sch. & Lef. 209 ; Eyre v. Dolphin, 2 B. & B. 290 ; 
 Blewett V. Millett, 7 B. P. C. 367. 
 
 {d) Coppin v. Fernyhough, 2 B. C. C. 291 ; Walley v. Whalloy, 1 Vern. 484 ; 
 Eyre v. Dolphin, 2 B. & B. 290. 
 
 (e) Coppin v. Fernyhough, ubi supra; Hodgkinson v. Cooper, 9 Beav. 304. 
 
 (/) Bowles V. Stewart, 1 Sch. & Lef. 209. {g) S. C. 
 
 {h) Coppin V. Fernyhough, 2 B. C. C. 291. 
 
 (?) Isald V. Fitzgerald, cited Owen v. Williams, Amb. 735, 737; and see Norris 
 V. Le Neve, 3 Atk. 38 ; Jackson v. Welsh, LI. & G. Rep. t. Plunket, 346.
 
 234 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 *If tlie trustee of a lease become the j^urcTiaser of the rever- 
 [*225] ^^.^^^^ gjj. ^_ Qxant said, that, as he thereby intercepts and cuts 
 off the chance of future renewals, and consequently makes use of his sit- 
 uation to prejudice the interest of those who stand behind him, there 
 mi"-ht be some sort of equity in a claim to have the reversion considered 
 as a substitution for those interests, but his honor was not aware of any 
 determination to that effect. (?) 
 
 But where a lease had been held of a college, and, the corporation hav- 
 ing- disposed of the reversion to a stranger, the trustee purchased of the 
 alienee, his honor expressly decided that the parties interested in the 
 original lease had no equity against the trustee, for the tenant-right of 
 renewal with a public body was gone, and a lease at a rack-rent was all 
 that could be expected from a private proprietor. (m) 
 
 The principle upon which a court of equity establishes constructive 
 trusts might be pursued into numerous other instances : as if a factor,(«) 
 agent,(o) or other confidential person, acquire a pecuniary advantage to 
 himself through the medium of his fiduciary character, he is accountable 
 for those profits to his employer or other person whose interest he was 
 bound to advance. 
 
 So if a tenant for life commit equitable waste, he is a trustee of the 
 proceeds for the benefit of the remainderman. (p) "The restraint upon 
 the legal owner as to equitable waste," said Sir J. Leach, "is to be con- 
 sidered as founded on a breach of that tnist and confidence which the 
 devisor reposed in the tenant for life, that he would use his legal estate 
 only for the purpose of fair enjoyment. It is a trust implied in equity 
 from the subsequent limitations, and from the presumed intention of the 
 testator that he meant an equal benefit to all in succession. "(5) 
 r*-?9n *-A.gain, where A. contracted for the sale of^ja?'^ of his estate, 
 L "^ J and the purchaser requiring a fine to be levied, B., who was A.'s 
 attorney, and also his heir-apparent, advised a fine to be levied of the 
 whole estate, whereby the will of the vendor was revoked, and the part 
 not included in the sale descended to B. as heir-at-law, it was held 
 that the devisee under the will could call upon B. as a trustee. (r) 
 " Whether you meant fraud," said Lord Eldon, " whether you knew you 
 were the heir-at-law of the testator or not, you have been wanting in 
 what I conceive to be the duty of an attorney, if it happens that you get 
 an advantage by that neglect, you shall not hold that advantage, but you 
 shall be a trustee of the property for the benefit of that person who would 
 have been entitled to it if you had known what as an attorney you ought 
 
 (1) Randall v. Russell, 3 Mer. 197 ; and see Hardman v. Johnson, ib. 347 ; Nor- 
 ris V. Le Meve, 2 Atk. 37 and 38 ; Lesley's case, 2 Freem. 52 ; Fosbrooke v. Bal- 
 guy, 1 M. & K. 226 ; Giddings v. Giddings, 3 Russ. 241. 
 
 (m) Randall v. Russell, 3 Mer. 190. 
 
 (n) East India Company v. Henchman, 1 Ves. jun. 287 ; S. C. 8 B. P. C. 85. 
 
 (0) Fawcett v. Whitehouse, 1 R. & M. 132; Hichens v. Congreve, ib. 150; Car- 
 ter V. Home, 1 Eq. Ca. Ab. 7; Brookman v. Rothschild, 3 Simons, 153; Gillettv. 
 Peppercorne, 3 Beav. 78 ; Bentley v. Craven, 18 Beav. 75. 
 
 {p) Marquis of Ormonde v. Kynersley, 5 Mad. 369. 
 
 (?) Ib. 
 
 (r) Bulkly V. Wilford, 2 CI. & Fin. 177 ; S. C. 8 Bl. N. S. Ill ; and see Segrave 
 V. Kirwan, Beat. 157.
 
 OF CONSTRUCTIVE TRUSTS. 235 
 
 to have known, and, not knowing it, you shall not take advantage of your 
 own ignorance. It is too dangerous to the interests of mankind that 
 those who are bound to advise, and who, being bound to advise, ought 
 to be able to give sound and sufficient advice, to allow that they shall 
 ever take advantage of their own ignorance, of their own professional 
 ignorance, to the prejudice of others. "(s) 
 
 An agent employed by a trustee is accountable to his principal only, 
 and cannot as a constructive trustee be made responsible to the cesfuis 
 que trust.{t\ But of course the rule does not apply where the agent has 
 taken an actively fraiiduJent part, and so made himself a principal. (u) 
 " It cannot be disputed," said Lord Langdale, <' that if the agent of a 
 trustee, whether a corporate body or not, knowing that a breach of trust 
 *is being committed, interferes and assists in that breach of trust, p:)-,-,.-,--, 
 he is personably answerable, although he may be employed as the L "'" J 
 agent of the person who directs him to commit that breach of trust. "(w) 
 Thus, where a trust fund was lodged at a banker's and was headed as a 
 trust account, and the surviving trustee became indebted to the bank, and 
 with the concurrence of the bankers (who were cognizant of the trust, 
 not only from the heading of the account, but also expressly, from cer- 
 tain private transactions,) the trust fund was applied in discharge of the 
 trustee's private debt ; the bankers could not protect themselves on the 
 ground of mere agency, but were held responsible to the cestuisque trust 
 for a breach of faith. (ti?) 
 
 Under the head of constructive trusts may be mentioned the case of a 
 settlement left in the hands of a person taking only a partial benefit under 
 it as a tenant for life; where the other persons interested and claiming 
 under the same title have a right to the fair use of the document, and the 
 holder is deemed a trustee for them, and is bound to produce it at their 
 request ;(x) and in one case it was ruled that if a person sell part of his 
 estate and retain the title-deeds, though he may not have given a cove- 
 nant for production, he is compellable to produce them as common pro- 
 perty to the purchaser. (y) But in Barclay v. Kaine,(a.) Sir J. Leach 
 seems to have doubted whether, if part be sold and the title-deeds be 
 delivered to the purchaser, a future purchaser from him could be ordered, 
 where there was no covenant for that purpose, to produce them to the 
 
 (5) 2 CI. & Fin. 177. 
 
 [t) Keane v. Robarts, 4 Mad. 332. see 356, 359 ; Davis v. Spurling, 1 R. & M. 
 64; S. C. Taml. 199; Crisp v. Sprauger, Nels. 109; Saville v. Tancred, 3 Sw. 141, 
 note; Nickolsoa \. Kuowles, 5 Mad. 47; Myler v. Fitzpatrick, 6 Mad. 360; Fyler 
 V. Fyler, 3 Beav. 550 ; Lockwood v. Abdy, 14 Sim. 437 ; and see Ex parte Burton, 
 3 Mont. D. & De Gex, 364 ; Re Bunting, 2 Ad. & Ell. 467. 
 
 {u) See Fyler v. Fyler, 3 Beav. 550; Portlock v. Gardner, 1 Hare, 606; Ex 
 parte Woodin, 3 Mont. D. & De G. 399 ; Attorney-General v. Corporation of Lei- 
 cester, 7 Beav. 176; Paunell v. Hurley, 2 Coll. 241 ; Alleyne v. Darcy, 4 Ir. Ch. 
 Rep. 199. 
 
 {v) Attorney-General v. Corporation of Leicester, 7 Beav. 179. 
 
 («;) Pannell v. Hurley, 2 Coll. 241 ; Bodenham v. Hoskyns, 2 De Gex, Mac. & 
 Gord. 908. 
 
 (x) Banbury v. Briscoe, 2 Ch. Ca. 42 ; Harrison v. Coppard, 2 Cox, 318 ; Shore 
 v. CoUett, Coop. 234; Davis v. Dysart, 20 Beav. 405. 
 
 {y) Fain v. Ayers, 2 S. & S. 533. 
 
 \z) 1 S. & S. 449 ; see 7 Byth. by Jann. 375.
 
 236 LEWIX ON THE LAVv' OF TRUSTS, ETC. 
 
 owners of the other parts. The real property commissioners observe, 
 that previously to this case it had been supposed, either that an original 
 independent equity existed entitling any party interested in a deed to 
 call for its production by any other person having the custody of it, or. 
 at least that such an equity existed wherever the parties *requir- 
 [*228] .^^ ^^g production claimed under a person who had taken the 
 precaution^'to procure a covenant for that purpose, and the person hav- 
 ing the actual custody of it derived that custody from or through a per- 
 son who had entered into such a covenant ;(a) upon which Sir E. Sugden 
 observes, that the rule in equity was never so universal as it is quoted in 
 the first part of the above statement, but that the second branch, stating 
 what at least the doctrine was, appears to be correct.(^) 
 
 Constructive trusts are said also to arise where the trust estate is eon- 
 verted by the trustee from one species of property into another ; and 
 again, where the trust estate passes from the trustee into the hands of a 
 volunteer, whether with or without notice, or of a purchaser for valuable 
 consideration with notice ; but as these are cases rather of an existing 
 trust continued and kept on foot than of a new trust created, the con- 
 sideration of these topics will be reserved to a subsequent part of the 
 treatise. 
 
 In concluding the subject of trusts by operation of law, it may be pro- 
 per to offer a few remarks on the wording of the Statute of Frauds. (c) 
 
 By the eighth section it is enacted, that " where any convegance shall 
 be made of any lands or tenements by which a trust or confidence shall or 
 may arise or result hy the imjjUcation or ronsfniction of laic, or be trans- 
 ferred or extinguished by an act or operation of law, then and in every 
 such case such trust or confidence shall be of the like force and effect as 
 the same would have been if that statute had not been made ; any thing 
 thereinbefore contained to the contrary notwithstanding." 
 
 Lord Hardwicke upon this clause observed, " I am now bound down 
 by the Statute of Frauds to construe nothing a resulting trust but what 
 are there called trusts by operation of law ; and what are those ? Why, 
 First, when an estate is purchased in the name of one person but the 
 money or consideration is given by another; or, Secondly, where a 
 r*99qn *trust is declared only as to part, and nothing said as to the 
 L "" J rest, in which case what remains undisposed of will result to the 
 heir-at-law. I do not know any other instance besides these two, where 
 the court has declared resulting trusts by operation of law, unless in cases 
 of fraud, and where transactions have been carried on mala fide." {d^ 
 
 But upon this opinion of Lord Hardwicke, Mr. Fonblanque has made 
 the following just remarks : — '< This construction of the clause of the 
 Statute of Frauds restrains it to such trusts as arise by operation of law, 
 whereas it clearly extends to such as are raised by construction of courts 
 of eqxdty ; as, in the case of an executor or guardian renewing a lease 
 though with his own money, such renewal shall be deemed to be in trust 
 for the person beneficially interested in the old lease. It is also observ- 
 
 (a) 3rd Rep. (6) 2 Vend. & Purch. 11 Ed. 479, 480. 
 
 (c) 29 Car. 2, c. 3. {d) Lloyd v. Spillet, 2 Atk. 150.
 
 OF CONSTRUCTIVE TRUSTS. 237 
 
 able, that the first instance stated by his lordship of a resulting trust is 
 not so qualified as to let in the exceptions to which the general rule is 
 subject, and the second instance is only applicable to a will, whereas the 
 doctrine of resulting trusts is also applicable to conveyances." {e^ As to 
 the latter part of this criticism it may be observed that while Atkyns 
 makes Lord Hardwicke speak of a will only, Barnardiston, the other 
 reporter, applies his lordship's observation to a convey ance.i^f^ It would 
 thus appear that Lord Hardwicke in fact extended his remark to both a 
 will and a conveyance. 
 
 Both Lord Hardwicke and Mr. Fonblanque assume that the seventh or 
 enacting clause embraces all trusts indiscriminately, and that such as 
 arise by operation of law are only saved from the act by virtue of the 
 subsequent exception contained in the eighth section ; but the language 
 of the latter clause, that "where any conveyance shall be made of any 
 lands or tenements by which a trust or confidence shall or may arise or 
 result,^' &c. seems to have escaped observation ; for, unless conveyance 
 be taken with great violence to the meaning of words to include a devise, 
 it is clear that trusts resulting under a will are not reached by the terms 
 of the saving. Nor is it easy to suppose that the legislature could mean 
 to include a *devise ; for the fifth and sixth sections relate exclu- rs^^on-i 
 sively to devises, and, had it fallen within the scope of the act to L *" J 
 extend the eighth section to wills, it can scarcely be conceived that the 
 proper and technical word should not necessarily have suggested itself. 
 The question then arises, If resulting trusts upon a ^vill are not saved by 
 the exception, how are they not aff"ected by force of the previous enact- 
 ment? As the statute was directed against frauds and perjuries, it is 
 obvious that resulting trusts were not within the mischief intended to be 
 remedied. The aim of the legislature was, not to disturb such trusts as 
 were raised by maxims of equity, and so could not open a door to fraud 
 or perjury, but, by requiring the creation of trusts by jiarties to he mani- 
 fested in writing, to prevent that fraud and perjury to which the admis- 
 sion of parol testimony had hitherto given occasion. And the enactment 
 itself is applicable only to this view of the subject; for the legislature 
 could scarcely direct, that " all declarations or creations of trusts should 
 be manifested and proved," &c., unless the trusts were in their nature 
 capable of manifestation and proof; but, as resulting trusts are the eflfect 
 of a rule of law, to prove them would be to instruct the court in its own 
 principles, to certify to the judge how equity itself operates. The excep- 
 tion could only have been inserted ex maj'ori cautela, that the extent of 
 the enactment might not be left to implication. But why, it will be 
 asked, are resulting trusts upon conveyances excepted, and not resulting 
 trusts upon ^vills ? The only explanation that suggests itself is this : — 
 The statute had spoken only of declarations or creations of trust, and by 
 a will no resulting trust is or can be declared or created. If lands be 
 devised to A. and his heirs upon trust to pay the testator's debts, the 
 resulting trust of the surplus is no new declaration or creation ; the right 
 construction is, that the testator has disposed of the legal estate to the 
 
 (c) 2 Tr. Eq. IIG, note {a). (/) See Lloyd v. Spillet, Barn. 388. 
 
 February, 1858. — 16
 
 238 
 
 LEVriK ox TUE LAW OF TRUSTS, ETC. 
 
 devisee, and of part of the equitable in favour of creditors ; but the resi- 
 due of the equitable, tbousli said to result, lias in fact never been parted 
 with but descends upon the heir-at-law as part of the original inheritance. 
 In convei/anccs, however, this is not equally the case; for if a purchase 
 be taken in the name of a third person, a trust which had no previous 
 .. . ^^ existence arises upon the property in favour *of the real pur- 
 [^-^^ chaser ; and so if a lease be renewed by a trustee, the equity 
 which was annexed to the old term immediately fastens upon the new. 
 Here, then, it is evident there is an actual creation of trust ; and, to 
 obviate all doubts as to the operation of the enactment, resulting trusts 
 arising out oi conveyances are expressly excepted. 
 
 j-*232] *CH AFTER X. 
 
 OP DISCLAIMER AND ACCEPTANCE OF THE TRUST. 
 
 HA^^NCT treated of the creation of trusts, whether by the act of a party 
 or by operation of law, we shall next direct our attention to the estate 
 and office of the trustee, and, as a preliminary inquiry, we propose in the 
 present chapter to offer a few remarks upon the subject of the trustee's 
 disclaimer or acceptance of the trust. 
 
 I . Of D iscla imer. 
 
 It may be laid down as a clear and undisputed rule, that no one is com- 
 pdlalle to undertake a trust.(a) " Though a person," said Lord Redes- 
 dale, " may have agreed in the lifetime of a testator to accept the exe- 
 cutorship, he is still at liberty to recede, except so far as his feelings may 
 forbid it ; and it will be proper for him to do so, if he finds that his 
 charge as executor is different from what he conceived it to be when he 
 entered into the engagement. "(6) 
 
 But there does not appear to be any instance in which, after accept- 
 ance by the trustee, his Tieir has been allowed to disclaim ; and if the 
 law permitted it, many instances would no doubt have occurred. The 
 inconveniences of such a right of disclaimer would be great, as the legal 
 estate would become vested in the crown. However, where the heir 
 takes not strictly in that character, but as special occupant, he may exer- 
 cise his discretion in accepting the estate or not.(c) 
 P^gqq-i If the party named as trustee intend to decline the adminis- 
 L -I tration *of the trust, he ought to execute a disclaimer without 
 delay. There is no rule, however, that a trustee must execute a dis- 
 claimer within any particular time : thus it will operate after an interval 
 of sixteen years, if the interval can be so explained as to rebut the pre- 
 fer) Robinson v. Pett, 3 P.TT. 251, per Lord Talbot ; Moyle v. Moyle, 2 R. & M. 
 Tlo, per Lord Brougham ; Lowry v. Fulton, 9 Sim. 123. per Sir L. ShadweU. 
 
 {b) Doyle v. Blake, 2 Sch. & Lef. 239. 
 
 (c) Creagh v. Blood, 3 Jones & Lat. 170.
 
 OF DISCLAIMER AXD ACCEPTANCE OF TRUST. 239 
 
 sumption of bis having accepted the trust.^c/) But if he lie by for so 
 long a time, it is for the jury to say whether it was not because he had 
 assented to the devise ;(e) and where a trustee, knowing his appointment 
 as trustee, has done nothing, but has not disclaimed, it will be presumed 
 after a long lapse of time, as twenty years,(/) and a fortiori, after thirty- 
 four years,(^) that he had accepted the trust ; and even where the deed 
 was only four years old. Lord St. Leonards observed, '' that where an 
 estate was vested in trustees who knew of their appointment and did not 
 object at the time, they would not be allowed afterwards to say they did 
 not assent to the conveyance, and it would require some strong act to 
 induce the court to hold that in such a case the estate was divested. He 
 spoke," he said, " with respect to the effect upon third parties ; ever^- 
 court and every jury would presume an assent."(/i) 
 
 The disclaimer should be by deed, for a deed is clear evidence and 
 admits of no ambiguity ;(i) and the instrument should be a disclaimer 
 and not a conveyance, for the latter, as it transmits the estate, has been 
 held to imply a previous acceptance of the office ;(Z;) but Lord Eldon 
 expressed his opinion, that, where the intention was disclaimer, the 
 instrument ought to receive that construction, though it was a convey- 
 ance in form.0 
 
 If an executor of an executor take upon him the administra- r:}:9q i-i 
 tion *of the goods of the first testator, he cannot refuse the L ~ J 
 administration of the goods of the latter ; for, it is only through the 
 medium of the latter testator that he can reach the executorship of the 
 former. And although it was formerly thought that an executor might 
 renounce probate of the original testator, and at the same time or subse- 
 quently prove the will of the immediate testator, fjji) yet the practice 
 has now been settled to the conti'ary.(?i) 
 
 Suppose a trustee of two distinct settlements created at different times 
 and wholly independent of each other were to devise all his trust estates 
 to the same person, could such person accept one estate, and disclaim 
 the other ? It would probably be held, that he might ; but he should 
 lose no time in manifesting his intention, for should he act as owner of 
 one estate and not expressly disclaim the other, the law would presume 
 him to have accepted both. 
 
 If a person be nominated a trustee in a will and also take a benefit 
 
 {d) Doe V. Harris, 16 M. & W. 517 ; and see Noble t. Meymott, 14 Bear. 471. 
 
 (e) See Doe v. Harris, 16 M. & W. 522. (/) In re Uuiaeke, 1 Joues &Lat. 1. 
 
 [g) In re Needbam, 1 Joues & Lat. 34. 
 
 (A) Wise T. Wise, 2 Jones & Lat. 403 ; see 412. 
 
 [i) Stacey v. Elpb, 1 M. k K. 199, per Sir J. Leach. 
 
 (k) Crewe v. Dicken, 4 Yes. 97 ; and see Urcb v. Walker, 3 M. & C. 702. 
 
 (Z) Nicloson v. Wordsworth, 2 Sw. 372. In Attorney-General v. Doyley, 2 Eq. 
 Ca. Ab. 194, the trustee who declined to act was directed to convey, and the same 
 decree was made in Hussey v. Markham, Rep. t. Finch, 258. In Sharp v. Sharp, 
 2 B. & A. 405, it was held the trustees had not acted, though they had conveyed 
 the estate instead of disclaiming. See Urch v. Walker, 3 M. & C. 702 ; Richardson 
 v. Hulbert, 1 Anst. 65. 
 
 [m) Shepp. Touch, by Preston, 464 ; Wankford v. Wankford, Freem. 520 ; Hayton 
 v. Wolfe, Cro. Jac. 614; S. C. Palmer, 156; Button, 30. 
 
 (n) In the goods of Perry, 2 Curt. 655; and see In the goods of Beer, 15 Jar. 
 160.
 
 240 
 
 LEAVIN ON THE LAW OF TRUSTS, ETC. 
 
 under it, can he claim the testator's bounty, and at the same time dis- 
 claim the onus of the trust ?(o) It would seem that he might, for an 
 executor, who is also a legatee, may renounce probate and yet claim the 
 legacy, and it is difficult to point out the distinction between the two 
 
 cases. 1 • n 1 • If. -1 • 
 
 If one be named as trustee without any authority from himself, he is 
 justified in taking the opinion of counsel upon the propriety of executing 
 a deed of disclaimer, and if a person agree to pay the costs of the 
 disclaimer and the bill of costs be taxed, the item of counsel's opinion 
 will be allowed. (^j) 
 
 A trust may be disclaimed at the bar of the court,(5') or by answer in 
 chancery, and the person named as trustee will be entitled to his costs,(r) 
 but only as between party and party,(s) *though the bill be not 
 L ■" J dismissed against him before the hearing ;(<) and if his answer 
 be unnecessarily long, he will only be allowed what would have been the 
 reasonable costs of a simple disclaimer. («) 
 
 A trust may also be repudiated on the evidence of conduct without 
 any express declaration of disclaimer ;(y) but a person would act very 
 imprudently, who allowed so important a question as whether he is a 
 trustee or not to remain matter of construction. 
 
 After renunciation of the trust, whether by express disclaimer, or by 
 conduct which is tantamount to it, a trustee may assist as agent, or act 
 under a letter of attorney, in the management of the estate, without 
 incurring responsibility ;(«?) but the caution need scarcely be suggested, 
 that all such interference cannot be too scrupulously avoided before the 
 fact of the renunciation of the trust has been most unquestionably esta- 
 blished. The circumstance that the person named as trustee is to receive 
 a profit from his agency, excites a suspicion in the mind of the court. (a;) 
 
 What will amount to a disclaimer at Imo, so as to devest the estate, is 
 a very distinct question from the disclaimer of the office in equity. 
 
 It was formerly held (at least such was the clear opinion of Lord 
 Coke,) that & freehold, whether vested in a person by feoffment, grant,(^) 
 or devise,(5;) could not be disclaimed but by matter of record ; and the 
 reason, upon which this maxim was founded, was, that the suitor might 
 
 (o) See Talbot v. Radnor, 3 M. & K. 254; PoUexfen v. Moore, 3 Atk. 272; 
 Andrew v. Trinity Hall, Camb. 9 Ves. 525. 
 
 (p) In re Tryon, 7 Beav. 496. {q) Ladbrook v. Bleaden, M. R. 16 Jur. 630. 
 
 [r] Hickson v. Fitzgerald, 1 Moll. 14. 
 
 (s) Norway v. Norway, 2 M. & K. 278, overruling Sherratt v. Bentley, 1 R. & 
 M. 655. 
 
 {t) Bray v. West, 9 Sim. 429. 
 
 (m) Martin v. Fersse, 1 Moll. 146 ; Parsons v. Potter, 2 Hog. 281. 
 
 [v) Stacey v. Elph, 1 M. & K. 195. 
 
 (w) Dove V. Everard, 1 R. & M. 231 ; Harrison v. Graham, 3 Hill's MSS. 239, 
 cited 1 P. W. 241, Gth ed., note (y); Stacey v. Elph, 1 M. & K. 195 ; Lowry v. 
 Fulton, 9 Sim. 104; Montgomery v. Johnson, 11 Ir. Eq. Rep. 480. 
 
 (z) Montgomery v. Johnson, 11 Ir. Eq. Rep. 481. 
 
 {y) Butler and Baker's case, 3 Re. 26, a. 27, a ; Anon, case, 4 Leon. 207 ; Shepp. 
 Touch. 285. ' ; ; > ; , ff 
 
 (z) Bonifant v. Greenfield, Godb. 79, per Lord Coke; but at the rehearing (Or. 
 El. 80,) it was adjudged that three could pass the u-hole estate, the fourth having 
 disclaimed by act in pais ; and see Shepp. Touch. 452.
 
 OF DISCLAIMER AND ACCEPTANCE OF TRUST. 241 
 
 be more certainly apprised wlio was the tenant to the|)m'Ci)je.(a) But 
 tlie *doctrine of modern times is, that disclaimer by matter of pogg-i 
 record is unnecessary ;(h) for, as Lord Tenterden observed, there L " J 
 can be no disclaimer by a person in a court of record, unless some other 
 person think fit to cite him there to receive his disclaimer, and if the 
 estate be damnosa hcercditas, that is not very likely to happen. (c) Mr. 
 Justice Holroyd laid it down, that even a deed might be dispensed with, 
 and a party might disclaim a freehold hj jmrol ;{d) and the doctrine has 
 been sanctioned by an actual decision of Sir A. Hart,(e) and by the 
 apparent approbation of other judges. (/) 
 
 It was laid down in Butler and Baker's case, that estates limited under 
 the statute of uses were to be disclaimed with the same formalities as 
 estates at common law •,{g) but Lord Eldon doubted whether a party 
 coidd disclaim in the case of a conveyance to uses, except by release with 
 intent of disclaimer : however, his lordship added, he was aware that 
 such a doctrine would shake titles innumerable. (A) 
 
 It seems to be clearly established, that a disclaimer, even by parol 
 declaration, will suffice to devest the legal estate, when the trust pro- 
 perty is a mere chattel interest. (i^ 
 
 Whether a /erne covert could, under the Fines and Kecoveries Act, 
 disclaim an interest in real estate, was by the terms of the statute, left 
 doubtful; the act enabling her only to <' dispose of, release, surrender, 
 or extinguish" any estate or power as if she were a feme soIe.{Jc) In the 
 Irish Act, 4 & 5 W. 4, c. 92, s. 68, the word " disclaim" was expressly 
 introduced ; and now, by 8 & 9 Vict. c. 106, s. 7, a married woman is 
 enabled, in like manner, to '' disclaim" any estate or interest in lands in 
 England. 
 
 *The effect of disclaimer by a trustee is to vest the whole r*237'l 
 legal estate in the co-trustee 3 (?) and, as regards the exercise of L "_ -• 
 the office, even if the trust be accompanied with a power, as, of signing 
 receipts, the continuing trustee may administer the trust without the 
 concurrence of the trustee who has chosen to renounce, and without the 
 appointment of a new trustee.(?Ji) The settlor, it is said, must be pre- 
 
 (a) Butler and Baker's case, 3 Re. 26, b. 
 
 (6) Townson v. Tickell, 3 B. & A. 31 ; Begbie v. Crook, 2 Bing. N. S. 70; b. 
 C. 2 Scott, 128. 
 
 (c) Townson v. Tickell, 3 B. & A. 36. o , .. 
 
 {d) lb. 38, citing Bonifant v. Greenfield, Cr. El. 80 ; and see Doe v. Smyth, 9 
 
 '(e) Bingham v. Clanmorris, 2 Moll. 253. And see Creed v. Creed, 2 Hog. 215 ; 
 Re Ellison's trust, 1 Jur. N. S. 62. , , ^ ^^ 
 
 (/) See Doe v. Harris, 16 M. & W. 517. (s) 3 Re. 2(, a. 
 
 (h) Nicloson V. Wordsworth, 2 Sw. 372. 
 
 (i) Shepp. Touch. 285: Butler and Baker's case, 3 Re. 26, b, 27, a; bmith v. 
 Wheeler, 1 Vent. 130 ; S. C. 2 Keb. 774 ; Doe v. Harris, 16 M. & W. 520, 521, per 
 Parke, B. 
 
 (k) 3 & 4 W. 4 c. 74 s. 77. 
 
 (l) Bonifant T. Greenfield, Cr. El. 80; Crewe v. Dicken, 4 Yes. 100, per Lord 
 Loughborough; Small v. Marwood, 9 B. & C. 299 ; Freem. 13, case 111 : Hawkins 
 V. Kemp, 3 East, 410 ; Townson v. Tickell, 3 B. & A. 31 ; Browell v. Reed, 1 Hare, 
 435, per Sir J. Wigram ; and see Nicloson v. Wordsworth, 2 Sw. 369. 
 
 (m) Adams v. Taunton, 5 Mad. 435 ; Cooke v. Crawford, 13 Sim. 96 ; Bayley v. 
 Gumming, 10 Ir. Eq. Rep. 410 ; Hawkins v. Kemp, 3 East, 410.
 
 242 LEWIX ON THE LAW OF TRUSTS, ETC. 
 
 sumecl to know what the legal consequences of the death or disclaimer of 
 some of the trustees would be ;(??) and when the disclaimer has been 
 executed, it operates retrospectively, and makes the other trustee the 
 sole trustee ah initio. (y) 
 
 But in personal contracts the rule is different, for where A. covenants 
 with B., C, and D. as trustees, and B. disclaims, C. and B. do not take 
 the joint covenant, and cannot sue without B.(2>) 
 
 If trustees are also appointed protectors of the settlement, and they 
 intend to disclaim the protectorship, the deed of disclaimer must, by the 
 Fines and Recoveries Act, be enrolled in chancery.(j) 
 
 II. Of Acceptance. 
 
 A trustee may accept the office either by signing the trust deed,(r) or 
 by an express declaration of his assent, (.s) or by proceeding to act in the 
 execution of the duties of the trust. 
 
 If a person named as a trustee has, during a long period, done nothing 
 at variance with the acceptance of the office, the court, until the contrary 
 be shown, presumes that he has accepted it.(#) 
 
 r*9^8i *^^ *^® trustee execute the deed, he should see that the recitals 
 L J are correct. If it be stated, for instance, that stock has been 
 transferred into the name of the trustee, he should ascertain that such is 
 the truth, or the court may hold him liable for the consequences. How- 
 ever, in a late case(?f) where, notwithstanding the recital to the contrary, 
 it was suggested that no stock had ever been in existence, the master of 
 the rolls observed, <'I cannot say that the trustees are bound by the re- 
 cital of that fact contained in the deed. We have had so many instances 
 of parties representing that they were entitled to particular property, and 
 which representation has afterwards turned out to be wholly untrue, that 
 it would be unjust and dangerous to bind third parties by such represen- 
 tations ; and I am not aware that it has ever been held that trustees are 
 bound by the representations of parties about to be married, of the state 
 of their property. I do not, therefore, accede to the argument, that the 
 recital alone binds the trustees." 
 
 With respect to the liabilities of the trustee, it is perfectly immaterial 
 to him whether he declare his acceptance of the office or his consent be 
 implied, for in each case the obligations imposed upon him are precisely 
 the same.(v) In the event of a breach of trust the consequences to the 
 parties beneficially interested may admit of a slight variation. A breach 
 of trust creates per se a simple contract debt only;(«6-) but, if the trustee 
 
 (n) Browell v. Reed, 1 Hare, 435, per Sir. J. Wigram. 
 
 (o) Peppercorn v. Wayman, 5 De Gex & Smale, 230. 
 
 (p) Wetherell v. Langston, 1 Exch. G34. (^) 3 & 4 W. 4, c. 74, s, 32. 
 
 (r) See Buckeridge v. Glasse, 1 Cr. & Ph. 131, 134. 
 
 (s) See Doe v. Harris, 16 Mees. & W. 517. 
 
 (t) In re Uniacke, 1 Jon. & Lat. 1 ; In re Needham, ib. 34 ; and see James v. 
 Frearson, 1 Y. & C. Ch. Ca. 370; Doe v. Harris, 16 M. & W. 522. 
 
 (?i) Bateman v. Hotchkin, 10 Beav. 418. I have been informed by one of the 
 counsel in the cause that in Bliss v. Bridgwater, at the rolls, many years ago. Sir 
 J. Leach held differently ; and see Gore v. Bowser, 3 Sm. & Gif. 6. 
 
 (V) See Lord Montfort v. Lord Cadogan, 19 Ves 638. 
 
 (w) Vernon v. Vawdry, 2 Atk. 119 ; S. C. Barn. 280 : Cox v. Bateman, 2 Yes. 
 1 J ; Kearnan v. Fitzsimon, 3 Ridg. P. C. 18.
 
 OF DISCLAIMER AND ACCEPTANCE OF TRUST. 243 
 
 has agreed, under liis hand and seal, to execute the trust, this amounts 
 to a covenant even though the heirs be not named, and the breach of 
 trust, thus becoming a specialty clcht, will, in legal assets, take precedence 
 of simple contract debts. (a:) However the mere fact of a trustee being 
 made a party to and executing a deed appointing him to that office, will 
 not of itself amount *to a covenant on his part to execute the |-^_^„ -^ 
 trusts, if the deed do not contain any words which can be con- L ~ J 
 strued a covenant at law;(y) and if the deed do contain such words, 
 yet the trustee cannot be sued upon covenant if he has not executed the 
 deed ; though, of course, after accepting the trust he will be liable for a 
 breach of contract, as for a simple contract debt.(i') Khe has executed 
 the deed, it is not necessary, in order to make it a covenant, that there 
 should be the words covenant ov agree,\)ui the word declare will suffice. (o) 
 If the trustee has covenanted for himself and his heirs, a remedy then 
 lies at common law against the heir in respect of estates descended ; and 
 by 3 W. & M. c. 14, the like remedy was enacted against the devisees 
 of the debtor ; but this was only where the specialty would have sup- 
 ported an action of debt, as in the case of a bond, and did not apply to a 
 covenant by which, not a debt was created, but damages were recover- 
 able ;(i) but the 11 Gr. 4, and 1 Gul. 4, c. 47, has now perfected the re- 
 medy by extending it to the case of a covenant. A still more recent 
 statute(c) has declared that the lands of a debtor shall be liable to all his 
 debts, whether on simple contract or on specialty; but specialties, where 
 the heir is bound, are still made to take precedence of simple contract 
 debts, and specialties where the heir is not bound. 
 
 What acts of a person nominated as trustee will amount to a construc- 
 tive acceptance of the office, is a question constantly arising, and not 
 easily to be determined by any general rule. 
 
 If a person named as executor take out in-obate of the will, he thereby 
 constitutes himself executor, and incurs all the liabilities annexed to the 
 office. (fZ) But it was held in one *case, that A. having after pro- r^.7 < n-i 
 bate received part of the assets transmitted to him by the post, L " J 
 and handed over the money to B., the acting executor, was not liable; 
 the receipt by A., in the first instance, not being his own act, and the 
 transmission to B. being merely consequent upon the receipt.(e) 
 
 If the office of executor is, by the will, clothed with certain trusts, it 
 is not competent to a person named as executor to prove the will and 
 
 (z) Wood V. Hardisty, 2 Coll. 542; Gifford v. Manley, For. 109: Mavor \. 
 Davenport, 2 Sim. 227 ; Benson v. Benson, 1 P. W. 131 ; Deg v. Deg, 2 P. W. 414: 
 Turner v. Wardle, 7 Sim. 80 ; Primrose v. Bromley, 1 Atk. 89 ; Cummins v. Cum- 
 mins, 3 Jones & Lat. 64; see Baily v. Ekins, 2 Dick. 632. 
 
 {y) Adey v. Arnold, 2 De Gex, Mac. & Gord. 433; Wynch v. Grant, 2 Drewry, 
 312. It appears from the latter case, that in Adey v. Arnold, the trustee had 
 executed the deed, a circumstance not mentioned in the report of Adey v. Arnold. 
 
 (z) Richardson v. Jenkins, 1 Drewry, 477; Vincent v. Godson, 1 Sm. & Gif. 384. 
 
 (a) Richardson v. Jenkins, ubi supra; and see Saltoun v. Houston, 1 Bing. N. 
 C. 433 ; Cummins v. Cummins, 3 Jones & Lat. 64; 8 Jr. Eq. Rep. 723. 
 
 {b) Wilson V. Knubley, 7 East, 127. (c) 3 & 4 W. 4, c. 104. 
 
 [d) Booth v. Booth, 1 Beav. 125 ; Ward v. Butler, 2 Moll. 533, per Lord Man- 
 ners ; Stiles V. Guy, 1 Mac. & Gord. 431, per Lord Cotteuham ; Scully v. Delany, 
 2 Ir. Eq. Re. 165. 
 
 (e) Balchen v. Scott, 2 Ves. jun. 678.
 
 244 LEWIX ON THE LAW OF TRUSTS, ETC. 
 
 thereby make himself an executor, and then to reject the obligations that 
 are knit to the office. Thus, if a testator direct that his " executors " 
 shall get in certain outstanding effects to be applied to a particular pur- 
 pose, a person cannot make himself executor by proving the will, and 
 refuse the trusts. (/) 
 
 And if an executor be also designated as trustee of the real estate, he 
 cannot desert the situation of trustee, and accept only that of executor, 
 for the acting as executor is an acceptance of the entire trusteeship. (^) 
 
 And if a person, by the same instrument, be nominated trustee of two 
 distinct trusts, he cannot divide them, but if he accept the one, he will 
 be deemed to have accepted the other, (/i) 
 
 And if an executor act in any part of the executorship, as by signing a 
 power of attorney to get in part of the testator's estate,(<') he brings down 
 the whole burden upon him, though at the time of acting he disclaim 
 the intention of assuming the office generally. (/c) 
 
 If A. be named as executor arid trustee, and he renounces probate 
 and disclaims the trust, and B. takes out letters of administration with 
 the will annexed ; B., though he thus becomes the personal representa- 
 tive, is not also trustee in any other sense than as holding the surplus 
 assets after the ordinary administration, with notice of a trust. A pro- 
 ,^ per trustee can only be appointed by the institution of a suit for 
 L "^ J *the purpose, unless such a case was specially provided for by 
 the power of appointment contained in the will. 
 
 If a person be named as trustee in a settlement, but he does not 
 execute it and declines to act ; he, of course, will not be deemed to have 
 accepted the trust by merely taking the settlement into his custody until 
 a trustee can be found. (^) 
 
 Any voluntanj interference xcith the assets, whether with or without 
 probate, will stamp a person as acting executor. Thus, where of four 
 executors one only proved, and the other three gave a letter of attorney 
 describing themselves as executors to the fourth, described as acting 
 executor, to receive a quantity of stock,, Lord Hardwicke ruled that the 
 whole number, by this conduct, had drawn upon themselves the burden 
 of the executorship. (m) 
 
 So the joining in an assignment of the testator's lease,(n) or the 
 bringing an action in the course of executing the trust, (o) is an accep- 
 tance of the office, and an executor and trustee for sale will be deemed 
 to have acted in the trust, if the property be sold by direction of the 
 trustees, and he is present, and takes part, and exercises authority or 
 ownership by giving orders respecting the sale, and afterwards calls on 
 a co-executor to inquire into the state of the testator's accounts. (^) 
 
 (/) Mucklow T. Fuller, Jac. 198; and see Booth v. Booth, 1 Beav. 125; "Williams 
 V. Nixon, 2 Beav. 472. 
 
 iC/) Ward V. Butler, 2 Moll. 533. (h) Urch v. Walker, 3 M. & C. 702. 
 
 («) Cummins v. Cummings, 8 Ir. Eq. Rep. 723. 
 
 (k) Doyle v. Blake, 2 Sch. & Lef. 231 ; but see Malzy v. Edge, 2 Jur. N. S. 80. 
 
 {I) Evans v. John, 4 Beav. 35. 
 
 (m) Harrison v. Graham, 3 Hill's MSS. 239 ; S. C. cited Churchill v. Lady 
 Hobson, 1 P. W. 241, note (y), 6th ed.; White v. Barton, 18 Beav. 192. 
 
 {71) Urch V. Walker, 3 M. & Cr. T02. (o) Montfort v. Cadogan, 17 Ves. 489. 
 
 {}>) James v. Frearson, 1 Y. & C. Ch. Ca. 3T0 ; see 375, 377.
 
 OF DISCLAIMER AND ACCEPTANCE OF TRUST. 245 
 
 In Orr v. Newton/j) A., one of six executors, admitted in his answer 
 that during the life of B., another of the executors, and who had alone 
 taken out probate, he had assisted in writing letters to the co-executors 
 towards collecting the testator's estate, and it was proved that A. had 
 written on behalf of himself and his co-executors to a debtor of the 
 testator requiring payment. Lord Camden, notwithstanding the circum- 
 stances, observed in his argument, that " B. undertook to act solely, and 
 did act soleli/ until he died," implying that A. had, by his conduct, not 
 assumed the character of executor. But the case *was one of r*242-l 
 ii cruel persecution" against A. ; and his lordship put the fairest L "^ --J 
 possible construction upon all that A. had done : and besides. Lord 
 Camden might only have meant that B. was suhstantially the sole acting 
 executor, without adverting to the question, whether the interference 
 of A. ought not, in strict legal construction, to be held an acceptance of 
 the executorship. 
 
 The rule, that every voluntary interference with the subject-matter 
 will convert a person into a trustee, must be taken with this qualifica- 
 tion, that the interference is not such as to he, plainly referrible to some 
 other ground than the part execution of the trust. Thus A., B., and 
 C. were named as executors and trustees, and A. alone proved the will 
 and administered, and sold certain chattels to B., and afterwards applied 
 to B. as the friend of the family for advice ; B. in consequence nego- 
 tiated the sale of the testator's property, and became a purchaser of part 
 himself, taking the conveyance from A. the tenant for life and the heir-at- 
 law, under the impression that the devise to A., B., and C (as B. and 
 C. did not act in the trust) had become inoperative. On A.'s death B. 
 expressly renounced the executorship. A bill was filed under these cir- 
 cumstances against B., as having acted in the trust, and misconducted 
 himself in that character ; but Sir J. Leach was clearly of opinion, that 
 " B. had never interfered with the property, except as the friend^ or 
 agent of the widow. It was true he had never executed a deed disclaim- 
 ing the trust, but his conduct had disclaimed the trust. In the purchase 
 of "the small real estate made by him he had taken by feoffment from 
 the widow and eldest son of the testator, in whom the estates could only 
 have vested by the disclaimer of the trustee;" and his honor dismissed 
 the bill with costs. (r) 
 
 But if a trustee act ambiguously he cannot afterwards take advantage 
 of the doubt, and say he acted not as trustee, but in some other charac- 
 ter. Thus, a testator devised that the produce of a plantation should be 
 consigned to A. and be employed by him upon certain trusts, and A. 
 with full notice *of the will received the produce of the estate, |-*243-| 
 and then pleaded that he had been acting merely as factor or L ^ 
 agent ; but Lord Hardwicke said it was incumbent on the trustee if he 
 would not have acted to have refused, and not, going on in that ambig- 
 uous way, to leave himself at liberty to say he acted as trustee or not.(s) 
 
 (q) 2 Cox, 274: see Lowry v. Fulton, 9 Sim. 122. 
 
 (r) Stacey v. Elph, 1 M. & K. 195; and see Dove v. Everard, 1 Russ. & Myln. 
 231 ; S. C. Tanil. 376 : Lowry v. Fulton, 9 Sim. 115. 
 
 (s) Conyngham v. Conyngham, 1 Yes. 522 ; Montgomery v. Johnson, 11 Ir. Eq. 
 Rep. 476; see Lowry v. Fulton, 9 Sim. 115 ; Doe t. Harris, 16 M. & "W. 517.
 
 246 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 Upon the question of acceptance or non-acceptance of the office, of 
 course parol evidence is admissible as on any other issue. (^) 
 
 Where a fund is given to a person upon certain trusts, and he is ap- 
 pointed executor, as soon as he has severed the legacy from the general 
 assets, and appropriated it to the specific purpose, he dismisses the charac- 
 ter of executor, and assumes that of trustee.(i<) Indeed the assent of 
 the executor to the legacy, however proved, converts him into a trustee. (v) 
 If a person be asked and consent to become a trustee of a marriage- 
 settlement, and thereupon his name is introduced into articles as the basis 
 of the settlement, he may sue the parties bound by the articles for specific 
 performance, though he may not have executed any written instrument 
 declaratory of his acceptance of the trust. (m-) 
 
 As soon as a trustee has accepted the office, he must bear in mind 
 that he is not to sleep upon it, but is required to take an active part in 
 the execution of the trust. The law knows not such a person as u passive 
 trustee. If, therefore, an unprofessional person be associated in the trust 
 with a professional one, he must not argue, as is often done, that because 
 the solicitor is better acquainted with business and with legal technicali- 
 ties, the administration of the trust may be safely confided to him, and 
 that the other need not interfere except by joining in what are called 
 formal acts. *If he sign a power of attorney for sale of stock, 
 L "" J or execute a deed of reconveyance on repayment of a mortgage 
 sum, he is as answerable for the money as if he were himself the solici- 
 tor and had the sole management of the transaction. 
 
 Again, when a trustee has entered upon the trust, he is bound at once 
 to acquaint himself with the nature and particular circumstances of the 
 property, and to take such steps as may be necessary for the due protec- 
 tion of it. Thus he is not liable for the defaults of any predecessor in 
 the trust, but if the fund is in danger, and not in the state in which it 
 ought to be, the court will presume him to have made proper inquiries, 
 and will hold him responsible if he does not take such measures as may 
 be called for. (a-) 
 
 So a trustee of chattels personal for the separate use of a wife must 
 take care, on accepting the trust, to have the efi"ects ascertained by a 
 proper inventory, or in a suit for an account of the trust estate he may 
 be deprived of his costs. (?/) 
 
 If part of the original trust estate is supposed to be lost, or is not forth- 
 coming, the court will not appoint new trustees of the residue, so as to 
 make them partial trustees only, but will appoint them trustees generally, 
 and if required will at the same time, for the protection of the trustees, 
 direct an inquiry whether any part of the trust fund has been lost, and 
 what steps should be taken for its recovery.(^) 
 
 it) See James v. Frearson, 1 Y. & C. Ch. Ca. 370. 
 
 («) PMllipo V. Miinnings, 2 M. & C. 309 ; Byrchall v. Bradford, 6 Mad. 13 ; S. 
 C. ib. 235 ; Ex parte Dover, 5 Sim. 500 ; Ex parte Wilkinson, 3 Mont. & Ayr. 145; 
 See Wilmott v. Jenkins, 1 Beav. 401. 
 
 (y) Dix V. Burford, 19 Beav. 409. {lo) Cook v. Fryer, 1 Hare, 498. 
 
 [x) See Townley v. Bond, 2 Conn. & Laws. 405 ; James v. Fearson, 1 Y. & C. 
 Ch. Ca. 370 ; and see Malzy v. Edge, 2 Jur. N. S. 80; but quiere. 
 
 {y) England v. Downs, 6 Beav. 269; see 279. 
 
 (z) Bennett v. Burgis, 5 Hare, 295.
 
 OF THE LEGAL ESTATE IN THE TRUSTEE. 247 
 
 We may add in conclusion, that if a person by mistake or otlierwise 
 assume tlie character of trustee, when it really does not belong to him, 
 he may be called to account by the cestuts que trust, for the moneys he 
 received under the colour of the trust. Thus, when a testator devised 
 an estate to W. Thompson upon certain trusts, with a power of sale to 
 him, his heirs and assigns, and the trustee devised all his real estates to 
 his sister, Grace Thompson, charged with 50?. to his friend Watson, and 
 died, leaving his brother Jonas Thompson his heir-at-law, and, on the 
 death of the trustee, *Grace Thompson assuming to be devisee, r*245-i 
 sold the estate and received the money and paid it wrongfully L J 
 to the tenant for life ; in a suit against the representative of Grace 
 Thompson, the court held, although she was neither heir nor devisee, yet 
 as she had acted as trustee and received the money in that character, 
 she was accountable for it to the cestuis que trust. (a) 
 
 ^CHAPTER XL [*246] 
 
 or THE LEGAL ESTATE IN THE TRUSTEE. 
 
 Upon this subject we propose to treat. First. Of vesting the legal 
 estate in the trustee ; Secondly. Of the properties and devolution of the 
 legal estate ; and Thirdly. Of the question what persons taking the 
 legal estate will be bound by the trust. 
 
 SECTION I. 
 
 OF VESTING THE LEGAL ESTATE IN THE TRUSTEE. 
 
 I. Of the legal estate in the trustee with reference to the Statute of 
 Uses. 
 
 In the case of a simple trust, as the statute of Henry the Eighth 
 operates upon the first use, whether designated in the instrument as a 
 use or trust, if a conveyance or devise be to A. and his heirs " in trust" 
 for B. and his heirs, the possession will be executed in B. •,{aa) and the 
 statute must operate, notwithstanding the intention of the settlor to the 
 contrary, for the will of the subject cannot control the express enact- 
 ment of the legislature. (6) In order, therefore, to prevent the legal 
 estate from being executed in the cestiii que trust, it is necessary to vest 
 
 («) Rackham v. Siddall, 16 Sim. 297 ; affirmed by the lord chancellor on appeal 
 as to the point under consideration, 1 Mac. & Gord. 607. ^^ ^ , , c? 
 
 (aa) As in Austen v. Taylor, 1 Ed. 361 ; Robinson v. Grey, 9 East, 1, &c. bee 
 Brouffhton v. Langley, 2 Sallt. 679 ; Chapman v. Blissett, Gas. t. Talb. 150. 
 
 (b) See Carwardine v. Carwardine, 1 Ed. 36. In Gregory v. Henderson 4 
 Taunt. 772, Judges Chambre and Gibbs laid a stress on the testator s e«?fw<, but 
 Judge Health referred the case to the true principle, viz. that the trustees having 
 a duty to perform, it was a trust special, and so out of the statute.
 
 248 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 in tlie trustee not only the ancient common law fee, but also the primary 
 use, as, by conveying or devising *" to the trustee and his heirs 
 C*^"^"^] to the use of the trustee and his heirs," (c) or " unto and to the 
 use of the trustee and his heirs -/'{d) for although by this form of limita- 
 tion the trustee will be in by the common law, yet, as the use and the 
 possession are both vested in the trustee, the trust over, as not being the 
 primary use, will not be affected by the statute. 
 
 But sjyecial trusts are not within the purview of the act ;(^) and there- 
 fore, if any agency be imposed on the trustee, as by a limitation to A. 
 and his heirs, upon trust topay the rents,(/) or to convei/ the estate,(r7) or 
 if any control is to be exercised, or duty to be performed, as in the case 
 of a trust to ajJj^Ii/ the rents to a person's maintcnance,{h) or in making 
 repairsfi) to hold for the se2mrateuse of a feme covert,(^-) or to jyreserve 
 contingent remaindcrs[l) and a fortiori if to raise a sum of monei/,{vi) 
 or to disjyose ofhy sale,(^)i) in all these cases as the trust is of a special 
 character, the" operation of the statute of uses is effectually excluded. 
 But if an estate be released by deed to A. and his heirs " upon trust," 
 after the marriage of relessor '- for her and her assigns for life, for her 
 own sole and separate nse," but no active duty in respect of the separate 
 .„-, use is expressed to be reposed in the trustee personally, a com- 
 L -"^^J mon *law court rejects the sole and separate use as an estate 
 known only in equity, and holds the legal estate for life to be executed 
 in the relessor.(o) 
 
 And if the trust be simply to "jyermit and suffer A. to receive the 
 rents,"Qj) the legal estate is executed in A. However, if the lands be 
 devised to three persons and their heirs in trust, to permit A. to receive 
 the net rents for her life for her own use, and after her death to permit 
 
 (c) Robinson v. Comyns, Rep. t. Talb. 154; Attorney-General v, Scott, id. 138 ; 
 Hopkins v. Hopkins, 1 Alk. 589, per Lord Hardwicke. 
 
 {d) Doe V. Passingham, 6 B. & C. 305; Doe v. Field, 2 B. & Ad. 564 ; Harris v. 
 Pugh, 12 Moore, b11 ; S. C. 4 Bing. 335; Rackham v. Siddall, 1 Mac. & Gord. GOT. 
 (e) See Introduction ; and see Wright v. Pearson, 1 Ed. 125 ; Mott v. Buxton, 7 
 Ves. 201. 
 
 (/) Robinson v. Grey, 9 East, 1 ; Symson v. Turner, 1 Eq. Ca. Ab. 383, note, 
 3d resolution ; Garth v. Baldwin, 2 Yes. G46 ; Chapman v. Blissett, Cas. t. Talb. 
 145 ; Barker v. Greenwood, 4 M. & Wels. 429 ; Anthony v. Rees, 2 Cr. & Jer. 75 ; 
 White V. Parker, 1 Bing. N. C. 5T3 ; and see Doe v. Homfray, 6 Ad. & Ell. 206 ; 
 Kenrick t. Lord Beauclerk, 3 Bos. & Pull. 178 ; Nevil v. Saunders, 1 Vern. 415 ; 
 Jones V. Say & Seal, 1 Eq. Ca. Ab. 383. 
 
 {g) Garth v. Baldwin, 2 Ves. 646 ; Doe v. Field, 2 B. & Ad. 504 ; Doe r. Edlin, 
 4 Ad. & Ell. 582. 
 
 [h) Sylvester v. Wilson, 2 T. R. 444 ; Doe v. Edlin, 4 Ad. & Ell. 582. 
 {i) Shapland v. Smith, 1 B. C. C. 75. 
 
 {k) Harton v. Harton, 7 T. R. 652; and see Nevil v. Saunders, 1 Yern. 415 ; 
 Jones V. Lord Say & Seal, 1 Eq. Ca. Ab. 383 ; Doe T. Claridge, 6 Com. B. Re. 641. 
 (0 Biscoe v. Perkins, 1 Y. & B. 485 ; and see Barker v. Greenwood, 4 M. & W. 
 431. 
 
 im) Wright v. Pearson, 1 Ed. 110 ; Stanley v. Lennard. 1 Ed. 87. 
 (n) Bagshaw v. Spencer, 1 Yes. 142. 
 (o) Williams v. Waters, 14 M. & W. 166. 
 
 [p) Boughton V. Langley, 1 Eq. Ca. Ab. 383; S. C. 2 Salk, 679; overruling Bur- 
 chett v. Durdant, 2 Yent. 311 ; Right v. Smith, 12 East, 455 : Wagstaff v. Smith, 
 9 Yes. 524, per Sir W. Grant ; Gregory v. Henderson, 4 Taunt. 773, per Heath, J.; 
 Warter v. Hutchinson, 5 Moor. 143; S. C. 1 B. & C. 721 : Barker v. Greenwood, 4 
 M. & W. 429, per Parke. B.
 
 OF THE LEGAL ESTATE IN THE TRUSTEE. 249 
 
 B. to receive the net rents for lierlife for her sole and separate use, with 
 remainder over and a power of sale to the trustees, it has been held that 
 the legal estate is in the trustees, for that they are to receive the rents, 
 and thereout pay the land-tax and other charges on the estate, and hand 
 over the net rents only to the tenant for life. (5) 
 
 If the legal estate be limited to the trustees cliarged with dehts, and 
 subject thereto in trust for A., but no direction to the trustees personally 
 to pay the debts, (r) here as the trustees have no agency assigned to 
 them, but merely stand seised in trust, the statute will operate, and exe- 
 cute the possession in A. 
 
 And where copyholds were devised to trustees during the minority of 
 the testator's son, " the same to be transferred to him" when he attained 
 twenty-one, and if he died under twenty-one the testator gave the estate 
 over, it was held that the trustees took a chattel interest only, until the 
 son attained twenty-one, and that the copyholds then vested in the son. 
 It was said, that if the devise were to the son on attaining twenty-one 
 without the intervention of trustees, the admission of the son as tenant 
 on the rolls would operate as a transfer of the estate, and that the words 
 " the same to be transferred" did not imply that the trustees were to 
 transfer *the legal estate. (s) This construction appears some- 1-^9^01 
 what forced, as the estate is not transferred by the admission, L -" J 
 but by the surrender. However, the estate remains in the surrenderor 
 iintil the admission of the surrenderee, though it then operates retro- 
 spectively from the date of the surrender. 
 
 Where the trust was " to pay unto or permit and suffer a person to 
 receive" the rents, as the former words would have created a special 
 trust, and the latter would have been construed a use executed by the 
 statute, the court determined, for want of a better reason, that the former 
 or latter words should prevail, as the instrument^ in which they were 
 found, happened to be a deed or a will.(i!) 
 
 II. Of the legal estate in the trustee as governed by the object and 
 scope of the trust. 
 
 As legal limitations are properly cognisable by a common-law court, it 
 might naturally be supposed that the construction put upon the instru- 
 ment would stand wholly unaffected by the circumstance of the creation 
 of the trust. But as the effect of a deed or will is to be ruled by the 
 intention, and every person in limiting an estate to a trustee must be 
 guided by the equity he proposes to raise upon it, the courts, as well of 
 common law as of equity, were necessarily led to enter upon the conside- 
 ration of the trust, in order to measure the extent of the legal interest by 
 the scope and object of the equitable. (m) 
 
 The following rules of construction have been adopted by the courts in 
 reference to this branch of our subject, and, except so far as they are 
 
 {q) Barker v. Greenwood, 4 M. & W. 421 ; White v. Parker, 1 Bing. N. C. 573. 
 
 (r) Kenrick v. Lord Beauclerk, 3 B. & P. 175 ; Jones v. Lord Say & Seal, 8 Yin. 
 262. In this case the remainder was given to the trustees upon trust subject to 
 the annuities, and was held to be executed. 
 
 (s) Doe V. Nicholls, 2 B. & Cr. 336. (t) Doe v. Biggs, 2 Taunt. 109. 
 
 (m) As to the cognisance of trusts by a court of law, see Sims v. Marryat, 17 Q. 
 B. Rep. 292 ; May v. Taylor, 6 Mann, k Gr. 2(11.
 
 250 LEWIX ox THE LAW OF TRUSTS, ETC. 
 
 controlled by the positive enactments of tlie late Wills Act;(«) must still 
 be resorted to for guidance. 
 
 First, Wherever a trust is created, a legal estate sufficient for the exe- 
 cution of the trust shall, if possible, be implied : Secondly, The legal 
 estate limited to the trustee shall not be carried farther than the complete 
 execution of the trust necessarily requires. 
 
 1. To illustrate the first of these rules, the court has in *some 
 L "'J instances suj;>pUed tlie estate in toto ; as where a testator had 
 devised to a feme covert the issues and profits of certain lands to he paid 
 hy Ms exerAitors, it was held the land itself was devised to the executors 
 in trust to receive the rents and profits to the use of the wife.(ic) 
 
 If a testator simply appoint a person his executor and trustee, it seems 
 the latter word is not so exclusively applied to real estate, as to carry by 
 implication to the executor a devise of the testator's freeholds, but if the 
 testator direct certain acts to be done by the trustee which belong to the 
 owner of the freeholds, such a devise will be implied. (a;^ And so if the 
 testator appoint a person his " trustee of inheritance," which is equiva- 
 lent to making him the trustee of his inheritable property. (//) And if a 
 testator constitute a trustee by will, and devise the legal estate to him, 
 and then by a codicil " nominates and appoints another person to be 
 trustee" in his place, the codicil not only confers the office of the trustee- 
 ship, but also carries the legal estate with it. (2;) 
 
 In other eases the court has extended the estate, as where the devise 
 was to three trustees, and the survivor of them, and the executors and 
 administrators of such survivor, upon trust to pay certain annuities for 
 lives, it was ruled that the trustees took an estate for the several lives of 
 the annuitants. {riS 
 
 If land, said Lord Hardwick, be given to a man without the word heirs, 
 and a trust be declared which can be satisfied in no other way but by the 
 trustees taking an inheritance, it has been construed that a fee passes. (i) 
 r*9'=in Thus a trust to sell,(c) *even on a contingency,((:Z) confers a fee 
 L J simple as indispensable to the execution of the trust ; and the 
 construction is the same in a sale implied, as where the devise is upon 
 trust out of the rents and profits of an estate to discharge certain legacies 
 
 {v) 1 Yict. c. 26, ss. 30, 31, 
 
 {■w) Bush V. Allen, 5 Mod. 63 ; Doe v. Homfray, 6 Ad. & Ell. 206 ; and see Gates 
 V. Cooke, 3 Bur. 1684 ; Sir W. Black. 543 ; Doe v. Woodhouse, 4 T. R. 89. 
 
 ix) Gates v. Cooke, 3 Burr. 1684 ; Bush v. Allen, 5 Mod. 63 ; Anthony v. Rees, 
 2 Cr. & Jer. 75 ; Doe v. Shotter, 8 Ad. & Ell. 905. 
 
 iy) Trent v. Hanning, 1 B. & P. New Rep. 116 ; 10 Yes. 495 ; 7 East, 95 ; 1 Dow. 
 102 ; Doe v. Pratt, 6 Ad. & Ell. 180. 
 
 (z) Re Hough's Will, 4 De Gex & Sm. 371. 
 
 (a) Doe V. Simpson, 5 East, 162 ; and see Atcherley v. Yernon, 10 Mod. 523 ; 
 Gates V. Cooke, 3 Bur. 1684; Shaw v. Weigh, 2 Str. 798; Jenkins v. Jenkins, 
 Willes, 650. In Doe v. Simpson a life estate only was implied, as the trustee was 
 merely such ; but in Jenkins v. Jenkins, the trustee being also interested benefici- 
 ally, the construction was more liberal, and it was thought the fee simple passed. 
 (6) Villiers v. Yilliers, 2 Atk. 72. 
 
 (c) Shaw V. Weigh, 2 Str. 798 ; Bagshaw v. Spencer, 1 Yes. 144, per Lord Hard- 
 wicke ; and see Glover v. Monckton, 3 Bing. 13 ; 10 Moore, 453. As to Hawker v. 
 Hawker, 3 B. & Aid. 537, and Warter v. Hutchinson, 5 Moore, 143, S. C. 1 B. & C. 
 721, see remarks infra, pp. 256, 257. 
 
 ((f) Gibson v. Lord Montfort, 1 Yes. 485, see p. 491.
 
 OF THE LEGAL ESTATE IN THE TRUSTEE. 251 
 
 made payable at a day inconsistent witli tlie application of tlie annual 
 profits only.((') 
 
 But a power of selling will not be implied by a limitation to a trustee, or 
 to a trustee his executors and administrators, upon trusts to pay debts and 
 legacies generally,(/) or (seynhle) to raise a sum of money.(;7) In sucli 
 cases, where nothing in the context implies the limitation of the fee, a 
 chattel interest only will pass. But, if a greater estate be limited expressly, 
 as by a devise to A. and his heirs upon trust to pay debts, the court has no 
 jurisdiction to cut down the expression and reduce the estate to a chat- 
 tel,(/i) though if a chattel interest be carved out of the fee and be so 
 limited, the word "heirs" may be rejected as inconsistent with the estate, 
 as where lands are devised to trustees and their heirs, until an infant 
 attains twenty-one, and then to the infant in fee.(i) 
 
 If an estate be granted to two, and the survivor of them, and the heirs 
 of such survivor, they are not joint tenants in fee, but take a freehold for 
 their joint lives, with a contingent remainder to the one that may happen 
 to survive. The same construction will be put upon a devise expressed 
 simply in the same terms without any trust annexed, or even if there be 
 *a trust, provided the nature of it do not require the fee simple r^9r9-i 
 to be vested in the trustees. (^-) But if such a devise, even to L "^ ""J 
 beneficiaries, be coupled with words pointing to a joint tenancy, that 
 construction will be adopted, as if the gift be to two and the survivor of 
 them and their heirs,(Z) or to them as joint tenants, and the survivors 
 and survivor of them, and the heirs and assigns of such survivor. (??^) 
 And if the devise be to two and the survivor of them, and the heirs of such 
 survivor, upon trusts that require the fee simple to be vested in the 
 trustees, or upon trust for sale, the prevailing opinion is, that notwith- 
 standing the old case of Vick v. Edwards(7i) to the contrary, the courts 
 would compel a purchaser to accept a title on the assumption that the 
 trustees took the fee simple.(o) "Whatever doubts," observes Butler, 
 "were formerly entertained, it now appears to be the settled opinion of 
 the profession that a devise to two and the survivor of them, and the 
 heirs and assigns of such survivor, enables the trustees to vest the fee iu 
 the purchaser, and that titles under such a devise are accepted with a 
 conveyance from the trustees and without the concurrence of the heir."(^) 
 2. To illustrate the second rule, if an estate be devised to A. and his 
 heirs upon trust io permit B. to receive the rents during his life, and on 
 
 (e) Gibson v. Lord Montfort, 1 Ves. 485. 
 
 (/) Co. Lit. 42 a; Cordal's case, Cr. El. 315; Carter v. Barnadiston, 1 P. W. 
 505; Hilchins v. Hilchins, 2 Vern. 403; Doe v. Simpson, 5 East, 171, per Lord 
 Ellenborough, C. J. ; Roberts v. Diswell, 1 Atk. 609, per Lord Hardwicke. 
 
 {g) Doe V. Simpson, 5 East, 162 ; and see Bosworth v. Forard, 0. Bridg. Rep. 
 167 ; Thomason v. Mackworth, id. 507; Co. Lit. 42 a, note (7), Butler's ed. 
 
 (h) Wright V. Pearson, 1 Ed. 119, see p. 123. 
 
 (?) Goodtitle v. Whitbv, 1 Burr. 228 ; Doe v. Lea, 3 T. R. 41 ; Warter v. Hutcli- 
 inson, 1 B. & C. 721 ; and see Ackland v. Lutlej, 9 Ad. & Ell. 879; but see Le- 
 thieullier v. Tracy, 3 Atk. 780, Fearne's C. R. 226, Butler's note. 
 
 [k) Re Harrison, 3 Anst. 836. 
 
 [I) Doe v. Sotheron, 2 Bar. & Ad. 628 ; Oakley v. Young, 2 Eq. Ca. Ab. 537. 
 
 Im) Goodtitle v. Layman, Fearne's C. R. 358. («) 3 P. W. 372. 
 
 (o) See Doe v. Ewart, 7 Ad. & Ell. 636 : Doe v. Sotheron, 2 Bar. & Ad. 628. 
 
 i^p) Co. Lit. 191 a. note 1 ; and see Fearne's C. R. 358.
 
 252 LEWIX ON THE LAW OF TRUSTS, ETC. 
 
 his death to convey to C. in fee, here the legal estate for the life of A. is 
 vested in B., and the remainder only in the trustee. (5) On the other 
 hand, if an estate be devised to A. and his heirs in trust to pay the rents 
 to B. for his life, and on his death the testator devises the estate to C. in 
 fee, here the legal estate for the life of B. is in the trustee, and the legal 
 estate in the remainder is vested in C.(>') So where a copyhold was 
 devised to A. and his heirs upon trust for the separate use of a feme 
 covert during her *life, and after her decease in trust as the feme 
 L " -I should appoint, and in default of appointment to the testator's 
 risht heirs, it was thought by Judge Heath that the trustee took a base 
 fee determinable on the life of the feme, and by Judge Chambre, that 
 the devise amounted only to an estate pur autre vie.(^s'^ But it seems 
 that such a limitation in a deed, where the construction is narrower, 
 would have conferred the fee simple. (/) 
 
 So in a devise to A. for life, remainder to trustees and their heirs to 
 preserve contingent remainders (the words " during the life of A." 
 being omitted.) with remainders over, the trustees were construed to 
 take not a fee simple, but an estate for the life of A.(u) And Sir W. 
 Grant expressed himself in favour of a similar construction where the 
 instrument was a deed :(i-) but it has since been decided that in the latter 
 case a fee simple passes, (?r) unless it be quite clear upon the face of the 
 deed itself that the words " during the life of A.," were meant to be in the 
 deed, and are wanting through inadvertence. (a;) Of course there can be 
 no such restriction of the estate by implication where the natural sense 
 of the words admit of a fair and reasonable construction, as if before 
 the late act the fee in the trustees would have supported any contin- 
 gent limitations that would otherwise have been left at the mercy of the 
 tenant for life.C_y) 
 
 Upon the principle we are now considering, if the legal estate be 
 given to trustees, and their heirs, upon a trust not executed by the sta- 
 tute during the life of A., and after A.'s decease to uses in strict settle- 
 r*9^41 ^^^^' *^® vesting of the estate *in the trustee during the life of 
 '- "" J A. will not prevent the operation of the statute in executing 
 the uses in remainder.(2;) 
 
 (q) Doe v. Bolton, 11 Ad. & Ell. 188 ; Adams v. Adams, 6 Q. B. Rep. 860. 
 
 (r) Adams v. Adams, 6 Q. B. Rep. 860 ; Cooke v, Blake, 1 Exch. Rep. 220. 
 
 (s) Doe V. Barthrop, 5 Taunt. 382, and see Ward v. Burburj, 18 Beav. 190; Doe 
 d. Players v. Nicholls, 1 B. & Cr. 342; Doe v. Cafe, 7 Exch. Rep. 615. 
 
 {t} Wykham v. Wykham, 11 East, 458; see S. C. 18 Ves. 419, and following 
 pages. 
 
 (m) Doe V. Hicks, Y T. R. 433 ; as to Boteler v. Allington, 1 B. C. C. 72, see Doe 
 T. Hicks, 7 T. R. 435, and Wykham v. Wvkham, 18 Ves. 418 ; and see Nash v. 
 Coates, 3 B. & Ad. 839. 
 
 (u) Curtis V. Price, 12 Ves. 89; but see Wykham v. Wykham, 18 Ves. 419, and 
 follo'wing pages. 
 
 (w) Colmore v. Tyndall, 2 Y. & J. 605. 
 
 (z) Beaumont v. Marquis of Salisbury, 19 Beav. 198 ; Haddelsey v. Adams, 22 
 Beav. 266 ; Lewis v. Rees, 3 K. & J. 132. 
 
 (y) Venables v. Morris, 7 T. R. 342, 438; and see Curtis v. Price, 12 Ves. 100; 
 Doe V. Hicks, 7 T.R. 437 ; Rochford v. Fitzmaurice, 1 Conn. & LaW. 169 ; 2 Drur 
 & Warr. 16. ' 
 
 (2) Doe V. Simpson, 5 East, 171, per Lord Ellenborough : Robinson v. Grey, 9
 
 OF THE LEGAL ESTATE IN THE TRUSTEE. 253 
 
 Thus, ia tlie much disputed, but, as it appears, rightly decided case 
 of Jones V. Lord Say and Seal,(«) where a testatrix devised to trustees 
 and their heirs upon trust to pay the legacies, devises, and bequests 
 thereinafter mentioned (some life annuities only were given,) and to pay 
 the residue of the rents and profits as her daughter should appoint for 
 her life, and after her decease the trustees to <' stand seised" of the pre- 
 mises to certain uses, '' subject to the payment of the several annui- 
 ties ;" — it was held by the court that the legal estate during the life of 
 the daughter was vested in the trustees, but that the remainder expect- 
 ant upon her decease was executed to the cestuis que use : the trustees 
 were not required to be agents after the death of the daughter, but were 
 simply, subject to the payment of the annuities, which meant only, sub- 
 ject to the annuities, to stand seised to uses. 
 
 So, where a testator devised to three trustees and their heirs subject 
 to the following uses and estates, viz. in trust to permit two persons to 
 receive annuities, and, subject thereto, he devised the premises to the 
 trustees and their heirs until A. attained twenty-one, upon certain trusts, 
 and, when A. should attain twenty-one, he devised the premises to the 
 trustees and their heirs to uses in strict settlement, it was held that the 
 trustees took a chattel interest only, and that the uses in remainder were 
 executed by the statute. (i) The testator prefacing each limitation with 
 a devise to " the trustees and their heirs," the repetition of these words 
 was probably regarded as surplusage, and the will was construed as 
 follows : — " I devise the estate to the trustees and their heirs to the fol- 
 lowing uses, to the use that A. and B. may receive annuities, and subject 
 thereto to the use of the trustees until A. attain twenty-one and on A.'s 
 attaining twenty-one *to uses in strict settlement." Indepen- ^^-..--. 
 dently of this construction, it seems the devise to the trustees ^ ^ J 
 and their heirs until A. attained twenty-one would only have the effect 
 of communicating a chattel interest ;(r) for as every estate of a certain 
 and definite duration, though determinable on a life, is a chattel in its 
 nature, the limitation to the heirs would be rejected as repugnant. 
 
 In Harton v. Harton^c;?) a testator devised to A. and B. and their 
 heirs upon trust to permit C, Sk/eme covert, to receive the rents during 
 her life for her separate use, and after her decease to the use of her first 
 and other sons in tail ; and in default of such issue to the use of the 
 daughters in tail as tenants in common ; and in default of such issue 
 upon trust to permit D., a, feme covert, to take the rents during her life 
 for her separate use, with remainder to the use of her first and other 
 sons in tail, with remainder to her daughters in tail as tenants in com- 
 mon ; and in default of such issue, upon trust to permit E., a spinster, 
 
 East, 1 ; Adams v. Adams, 6 Q. B. Rep. 860 ; Doe v. Ironmonger, 3 East, 533 ; and 
 see Nash v. Coates, 3 B. & Ad. 839. 
 
 (a) 8 Yin. 262. 
 
 {b) Warter v. Hutchinson, 5 Moor, 143 ; S. C. 1 B. & C. 721 ; and see Ward v. 
 Burbury, 18 Bcav. J 90; Doe v. Cafe, 1 Exch. Rep. 675. 
 
 (c) Goodtitle v. Whitby, 1 Bur. 228; Doe v. Lea, 3 T. R. 41 ; and see Ackland v. 
 Lutley, 9 Ad. & Ell. 879 ;"but see Lethieullier v. Tracy, 3 Atk. 780 ; Fearne's Con- 
 ting. Rem. 226, Butler's note. 
 
 (d) 7 T. R. 652. 
 
 February, 1858. — 17
 
 254 LEW IN ox THE LAW OF TRUSTS, ETC. 
 
 to receive the rents during her life for her separate use, with like 
 remainder to the use of her first and other sons in tail, with remainder 
 to her dau2:hters in tail; as tenants in common ; and it was determined 
 that the fee simple was in the trustees ; but this decision can scarcely 
 be reconciled with principle, and seems to have presented some difficultj 
 to the mind of Lord Eldon. " The court," said his lordship, " held 
 that the legal estate was in the trustees throughout, as it appears to me, 
 for this reason, that there being various trusts for the separate use of 
 married women after various trusts not for married women, those trusts 
 could not subsist unless the legal estate was in the trustees from the 
 beginning to the end, and they relied on the non-repetition of a legal 
 estate. "(e) In a recent case, however before Yice-Chancellor Wigram, 
 his honor appears to have considered himself bound by Harton v. Har- 
 ^^ ton,(/) and in a still later case the Court of *Queen's Bench 
 L "^ -I recognised its authority, at least to a limited extent. (^) 
 
 But if a devise be to trustees and their heirs upon a trust that can- 
 not be executed without an absolute control over the property, as upon 
 trust to lease for an indefinite number of years,(/i) or to raise a sum of 
 money by sale,(i) and subject thereto to uses in strict settlement, the 
 trustees will not be held to take a mere power so as to let in the statute 
 to execute the uses, but will be construed to take the legal estate in fee, 
 and the uses that are limited will stand as equitable interests. 
 
 It has been observed in the Treatise of Powers,"(/i) that this rule was 
 not attended to in the case of Hawker v. Hawker. (/) The devise in 
 that case was to three trustees and their heirs upon trust to sell the tes- 
 tator's lands at H. for payment of his debts, and, in case the proceeds 
 should be insuflScient, then as to his lands at F. upon trust to sell for the 
 like purpose, and to dispose of the surplus moneys in manner therein- 
 after directed, and, in case it should not be necessary to dispose of the 
 said lands at F., then as to such his lands {^inter alia'j upon trust for the 
 maintenance of his daughter till twenty-one, and, on her attaining twenty- 
 one, to the use of the trustees during her life, and after her decease to 
 the use of her children ; and the court certified as to the lands at F., 
 that the trustees did not take a larger estate than for the life of the 
 daughter. The devise was probably considered to be of a double aspect, 
 viz. to the trustees and their heirs upon trust to sell, &c., if one event 
 happened, and upon trust for the daughter, &c., if another event happened. 
 The latter series of limitations took eflTect, and therefore, as no power of 
 sale was to be exercised by the trustees, it was not necessary under the 
 circumstances to arm them with the inheritance. 
 
 (e) Hawkins v. Luscombe, 2 Sw. 391. 
 
 (/) Brown v. Whiteway, 8 Hare, 145. 
 
 (g) Toller v. Attwood, 15 Q. B. Rep. 951. 
 
 [h) Doe V. Willan, 2 B. & Aid. 84 ; but see Heardson v. Williamson, 1 Keen. 3.J ; 
 Ackland v. Lutley, 9 Ad. & Ell. 8T9. 
 
 (i) Wright V. Pearson, 1 Ed. 123 : Bagshaw v. Spencer, 1 Yes. 142 ; Glover v. 
 Monckton, 3 Bing. 13 ; Bale v. Coleman, 2 Eq. Ca. Ab. 309. note (e) ; Sanford v. 
 Irby, 3 B. & Aid. 654 ; Jones v. Morgan, 1 B. C. C. 20G : for a correct report of the 
 •will, see Fearne's C. R. Appendix. No. 3. 
 
 {k) 1 S\ig. Pow. 127. 6th edit. ' {I) 3 B. & Aid. 537.
 
 OF THE LEGAL ESTATE IN THE TRUSTEE. 255 
 
 *The case of Warter v. Hutcliinson(?«) is more difficult to be p^nr-T 
 reconciled with the rule we are discussing. The limitations so L "^ 'J 
 far as they concern the present subject, were to trustees and their heirs 
 to the following uses, viz. to the trustees, their heirs and assigns, until 
 A. attained twenty-one, upon trust as soon as convenient after the testa- 
 tor's decease to raise out of the rents and profits, or by sale or mort^ao'e 
 thereof, a sum sufficient for the payment of debts, funeral expenses, and 
 the costs of the trustees, and also the sum of 2000/. to be applied in man- 
 ner therein directed, the residue of the rents and profits, after payment 
 of debts, funeral expenses, and the sum of 2000/., to be paid to A. on 
 his attaining twenty-one, and when A. shall attain twenty-one the testa- 
 tor devised the premises to the trustees and their heirs to uses in strict 
 settlement; and the court certified that the trustees took a chattel inter- 
 est, and not the fee simple. The construction appears to have been, that, 
 as the limitation to the trustees and their heirs was expressly limited to 
 the period until A. attained ticenty-one, the estate was intended to be a 
 chattel interest only, and the charges were to be raised either by sale or 
 mortgage of that chattel interest, or out of the inheritance by virtue of 
 an implied power. 
 
 Recent cases have established the following important qualification of 
 the rule now under consideration, viz., that where an estate is in the first 
 instance given to trustees and their heirs upon trusts which do not ex- 
 haust the equitable fee simple, and for which a particular estate short of 
 the legal fee in the trustees would be sufficient, but discretionary powers 
 are superadded, which cannot be exercised by the trustees without arm- 
 ing them with the means of passing the fee simple, there the courts have 
 held that the trustees do not take a particular estate by way of vested 
 interest with a power under the statute of uses or by a common law au- 
 thority of passing the fee, but that they retain the legal fee simple given 
 to them in the first instance, on the footing that they were meant to 
 exercise the discretion given to them by virtue of their ownership and 
 not by the mere operation of a *power.(%) Baron Parke observed, r^c.^r-n-i 
 in the leading case,(o) " It is certainly true that where the pur- L "^ J 
 poses of the trusts on which an estate is devised to trustees are such as 
 not to require a fee in them, as, for instance, where the trust is to pay 
 annuities or to pay over rents and profits to a party for life, there, if, sub- 
 ject to the specified trust, the estate is given over, the parties entitled 
 under such devise over have been held to take legal estates, the gift to 
 the trustees (even when given with words of inheritance) having been 
 taken in such cases to have been meant to be co-extensive only with the 
 trusts to be performed. This rule of construction has probably created 
 much more difficulty than it has obviated. It is, however, now too well 
 settled to be called in question. — But when an estate is given to trustees, 
 
 (to) 5 Moore, 143 ; S. C. 1 B. & C. 721. 
 
 («) Watson V. Pearson, 2 Exch. Rep. 581 ; Blagrave v. BlagraTe, 4 Exch. Rep. 
 550 ; Davies t. Davies, 1 Q. B. Rep. 430 ; Doe v. Cadogan, 7 Ad. & Ell. 636 ; Rack- 
 ham V. Siddall, 1 Mac. & Gord. 607. 
 
 (o) Watson v. Pearson, 2 Exch. Rep. 593.
 
 256 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 all the trusts whicli they are to perform must prima facie at least be 
 performed by them by virtue and in respect of the estate vested in them. 
 
 The fee is in terms devised to them, and it would be a very strained 
 
 and artificial construction to hold first that the natural meaning of the 
 words is to be cut down, because they would give an estate more exten- 
 sive than the trust requires, and then, when the trust does in fact require 
 the whole fee simple, to hold that that must be supplied by way of power 
 defeating the estate to the subsequent devisees, and not out of the inter- 
 est of the trustees.'^ 
 
 The rule of construction laid down in this case has since been followed, 
 even where the language of the subsequent limitations has been peculi- 
 arly applicable to a devise of the legal estate, as where after the primary 
 devise to the trustees and their heirs upon limited trusts with discretion- 
 ary powers the estate was expressed to be limited in strict settlement, by 
 a declaration of uses to that effect. (y>) 
 
 But the principle does not apply where the devise is to trustees and 
 their heirs upoQ trust for a person for life, and after her death upon cer- 
 tain trusts during the minority of her *children, with a mere 
 L "' J power of leasing, to be exercised during the continuance of the 
 trust without any authority affecting the fee simple. (5') 
 
 The law upon the subject has now undergone some alteration from the 
 provisions of the late act (1 V. c. 26,] for the amendment of the law of 
 wills. 
 
 By the 30th section it is declared, « that where any real estate (other 
 than or not being a presentation to a church) shall be devised to any 
 trustee or executor, such devise shall be construed to pass<Ae/ee simple, 
 or other the whole estate or interest which the testator had power to dis- 
 pose of by will in such real estate, unless a definite term of years, abso- 
 lute or determinable, or an estate of freehold shall thereby be given to 
 him, expressly or by implication." 
 
 And by the following section it is enacted, " that where any real estate 
 shall be devised to a trustee ivifhont any express limitation of the estate 
 to be taken by such trustee, and the beneficial^ interest in such real estate 
 or in the surplus rents and profits thereof shall not be given to any per- 
 son for life, or shall be given for life, but the purposes of the trust may 
 continue beyond the life of such person, such devise shall be construed 
 to vest in such trustee the fee simjile or other tiae whole legal estate 
 which the testator had power to dispose of by will, and not an estate 
 determinable when the purposes of the trust shall be satisfied.'' 
 
 The efi"ect of these provisions is by no means clear, but it is conceived 
 that a definite chattel interest, as a term of 99 years, or a simple 
 freehold as an estate for the life of A., may still either be limited ex- 
 pressly to trustees or be raised by implication ; and that in cases where 
 before the act an indefinite chattel interest would have passed as in a 
 devise to trustees (without the word " heirs") to pay debts, or a freehold 
 
 {p) Blagrave v. Blagrave, 4 Exch. Rep. 550 ; Rackham v. Siddall, 1 Mac. & 
 Gord. 607. 
 
 (?) Doe V. Cafe, 1 Exch. Rep. 675 : and see Adams v. Adams, 6 Q. B. Rep. 800.
 
 OF THE LEGAL ESTATE IN THE TRUSTEE. 
 
 257 
 
 with an indefinite interest superadded as in Doe v. Simpson,(;-') there the 
 words of the will are in future made to pass the fee simple. (*•) 
 
 ♦SECTION II. [*260] 
 
 THE PROPERTIES AND DEVOLUTION OE THE LEGAL ESTATE. 
 
 This branch of our subject we propose to consider, First, with refer- 
 ence to the common law ; and, Secondly, with reference to the construc- 
 tion of particular statutes. 
 
 I. As regards the common law, it may be stated as a general rule, 
 that the legal estate in the hands of the trustee has precisely the same 
 properties and incidents as if the trustee were the usufructuary owner. 
 Thus, if real estate be put in trust it is still subject at law in the hands 
 of the trustee to curtesy,(i') dower,(«t) and freebench,(6') and until a late 
 act was liable to forfeiture,(iti) and on the decease of the trustee descended 
 to his heir, and, failing the heir, fell by escheat to the lord;(cc) but now 
 by 13 & 14 V. c. 60, ss. 15, 46, substituted for 4 & 5 W. 4, c. 23, trust 
 property is protected from forfeiture and escheat, (y) 
 
 So chattels real and personal held upon trust were forfeitable until the 
 late act, which extends to personal as well as real estate, for the offence 
 of the trustee,(2;) but in the case of two joint trustees, a moiety only was 
 forfeited, and the king and the other trustee were tenants in common. (a) 
 So on the decease of the trustee the chattel, as part of his personal estate 
 at law, will devolve on the executor or administrator. And if the exe- 
 cutor die having appointed an executor, the chattel will devolve on that 
 executor. 
 
 If the lands comprised in a trust term be situate in a *differ- r*9fln 
 ent diocese from that in which the trustee was domiciled, it seems L J 
 a prerogative probate will be necessary before the term can be legally 
 transferred. (Z>) The chattel is of no value beneficially to the testator's 
 estate ; but ecclesiastical courts do not take cognizance of trusts. 
 
 And perhaps the better opinion is, that a chattel interest held upon 
 trust may at law be taken in execution for the debt of the trustee ; for, 
 so soon as the writ of execution reaches the sherifi''s oflSce, it binds the 
 goods and chattels of which the debtor is then possessed, and a trust 
 
 (r) 5 East, 162. 
 
 (s) See the observations on the above clauses, H. Sugden on Wills, p. 119 ; 2 
 Jarm. on Wills, 263. 
 
 (t) Bennet v. Davis, 2 P. W. 319. 
 
 (m) Noel v. Jevon, Freem. 43 ; Nash v. Preston, Cr. Car. 190. 
 
 (w) Hinton v. Hinton, 2 Ves. 631, 638; Bevant v. Pope, Freem. 11 ; and see 
 Brown v. Raindle, 3 Ves. 256. 
 
 (w) Pawlett V. Attorney-General, Hard. 4G6, per Lord Hale ; Geary v. Bear- 
 croft, Cart. 67, per Cur. ; King v. Mildmay, 5 B. & Ad. 254. 
 
 (x) Jenk. 190, c. 92. (y) See infra, pp. 285, 286, 287. 
 
 (z) Pawlett V. Attorney-General, Hard. 466, per Lord Hale; Wikes's case. Lane, 
 54; Scounden v. Hawley, Comb. 172, per Dolben, J.; Jenk. 219, c. 66; lb. 245, 
 c. 30. 
 
 (a) Wikes's case, Lane, 54. 
 
 (6) See Crosley V. Archdeacon of Sudbury, 3 Hagg. 201 ; 3 Vend. & Purch. 14.
 
 258 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 estate, as well as a beneficial ownership, must be subject to the lien, for 
 the common law can scarcely operate differently where it recognizes no 
 distinction. The sheriff is a mere instrument for the execution of the 
 leo'al process, and property, which the common law holds liable, the 
 sheriff can have no discretion to exempt upon grounds of equity. The 
 mere officer of the court cannot have ligandict non ligandi potestafxm.{c^ 
 It was said, however, by Mr. Justice Ashurst, " Suppose a person has 
 "oods as a trustee for certain purposes, which was made known to the 
 sheriff before the sale, if the sheriff persists in selling, it would in my 
 opinion be a tortious act in him."(fZ) On the other hand, Lord Thurlow 
 seems to acknowledge the legal right against the trustee, by observing, 
 that, if a creditor of the trustee take the goods in execution, he will 
 himself become a trustee by construction of equity.(e) 
 
 Assets in the hands of an executor are regarded even by the common 
 law as a species of trust property, and in respect of them has ingrafted 
 upon itself a quasi equitable jurisdiction : thus, if an executrix marry, 
 she may by will, without the consent of her husband, appoint an execu- 
 tor in whom the assets will vest, and who will thus become the executor 
 of the original testator ;(/) and though the husband during the cover- 
 r*9R9"i ^^'^^ ^^^ power to dispose of the assets in the course *of adminis- 
 L "^ -I tration,(7) he will not be entitled to them in his marital right 
 by survivorship. ^/A Nor can the assets be taken in execution for the 
 debt of the executor ;((') and, if he commit felony or treason, they are 
 exempted from forfeiture to the king ;(/(;) and if the executor die intes- 
 tate, instead of vesting in his administrator, they vest in the administra- 
 tor de bonis non of the testator. (/) 
 
 A trust estate, whether real or personal, may at law, be conveyed, 
 assigned, or incumbered by the trustee like a beneficial estate; and, if 
 there be co-trustees, each may exercise the like powers of ownership over 
 his own proportion. 
 
 And, as the trustee may dispose or the property in his lifetime, so he 
 may devise or bequeath it at his death. 
 
 But a trust estate will not in all cases pass hy the same xcords in a 
 will as a beneficial ownership would, for wherever the estate does not 
 pass by operation of law solely, but through the medium of the intention, 
 it becomes necessary, in order to ascertain the effect of the instrument, 
 to take into consideration the particular circumstances of the trust. 
 
 Whether a trust estate shall pass inclusively in a general devise, is a 
 question that has been frequently under discussion. The rule as origi- 
 nally established was, that a general expression would carry a dry trust 
 
 (c) Burdett v. Rockey, 1 Yern. 58, per Cur. 
 id) Farr v. Newman, 4 T. R. 647. 
 (e) Foley v. Burnell, 1 B. C. C. 278. 
 
 (/) Scammell v. Wilkinson, 2 East, 552 ; Hodsden v. Lloyd, 2 B. C. C. 543, per 
 Lord Thurlow. 
 
 {g) Thrustout V. Coppin, 2 W. Black. Rep. 801. 
 
 (A) Co. Lit. 351 a, 351 b; Stow v. Drinkwater, Lofft, 83. 
 
 {i) Farr v. Newman, 4 T. R. 621. 
 
 {k) Farr v. Newman, 4 T. R. 628, per Grose, J. 
 
 [l] Ih.per eundera; Rachfield v. Careless, 2 P. W. 161, per Powis, J.
 
 OF THE LEGAL ESTATE IN THE TRUSTEE. 259 
 
 estate,(??i) but afterwards there were some misgivings upon the sub- 
 ject ;(h) (1) and the court at last acceded to the proposition, that general 
 words would not pass trust estates, unless there appeared a positive 
 *intention that they should so pass.(o) The question was recon- ^^^ -, 
 sidered before Lord Eldon, when the result of the cases, after a L ~ '''J 
 careful examination of them, was declared to be, that, ichere the will 
 contained loords large enough, and there was no expression authorising 
 a narroioer construction, nor any such disposition of the estate as it U'lis 
 unlikely a testator would make of property not his own (as complicated 
 limitations, or any purpose inconsistent with as probable intention to 
 devise as to let it descend,^ in such a case, the trust estate wotdd pass.(p) 
 
 A charge of debts, legacies, annuities, &c., and a fortiori, a direction to 
 sell, is considered a sufficient indication of an intention not to include a 
 mere trust estate ;((y)and so where a testator gave, devised, and bequeathed 
 to trustees all such real estates as were then vested in him by way of mort- 
 gage, the better to enable his said trustees to recover, get in, and receive 
 the principal moneys and interest which might be due thereon, it was 
 ruled that the devise extended only to mortgages vested in the testator 
 beneficially, and did not pass the legal estate of a mortgage in fee vested 
 in him ujjon trust fov another.(r) Even where a testator, having a irut^t 
 estate and also estates of his own, gave and devised " all his real estate, 
 whatsoever and wheresoever, to Grace Thompson, her heirs and assigns, 
 for ever, charged with 50Z. to his friend Watson,'^ it was held that the 
 trust estate did not pass.(.s) 
 
 *The expression " my real estates" will not restrict the mean- r^cpnA-i 
 ing to those vested in the testator beneficially,^^ nor will a devise L J 
 to A.; his heirs and assigns, " to and for his aud their own use and 
 
 (m) Marlow v. Smith, 2 P. W. 198. 
 
 (n) See Braybroke v. Inskii?, 8 Ves. 437. 
 
 (0) Attorney-General v. Duller, 5 Ves. 340. 
 
 Ip) Braybroke v. Inskip, 8 Ves. 436; see Roe v. Reade, 8 T. R. 118 ; Ex parte 
 Morgan, 10 Ves. 101 ; Langford v. Auger, 4 Hare, 313. 
 
 {q) Roe V. Reade, 8 T. R. 118; Duke of Leeds v. Munday, 3 Ves. 348 ; Attor- 
 ney-General v. Duller, 5 Ves. 339 ; Ex parte Man hall, 9 Sim. 555 ; Ex parte Mor- 
 gan, 10 Ves. 101 ; Sylvester v. Jarman, 10 Price, 78 ; Re Morley's Trust, 10 Hare, 
 293 ; see Wall v. Dright, 1 J. & W. 494. 
 
 (r) Ex parte Morgan, 10 Ves. 101 ; and see Sylvester v. Jarman, 10 Price, 78 ; 
 Ex parte Drettell, 6 Ves. 577. 
 
 (s) Rackham v. Siddall, 16 Sim. 297, I Mac. & Gor. 607 : Hope v. Liddell, 21 
 Deav. 183. 
 t (t) Draybroke v. Inskip, 8 Ves. 425. 
 
 (1) The doubt appears to have originated in part. from an expression of Lord 
 Hardwicke in Casborne v. Scarfe, 1 Atk. 605, that by a devise of all lands, tene- 
 ments, and hereditaments, a mortgage in fee would not pass, unless the equity of 
 redemption were foreclosed. Dut Lord Hardwicke was not speaking here of the 
 legal estate, but of the beneficial interest in the mortgage. The same thing was 
 said in the same sense in Strode v. Russel, 2 Veru. 625. Lord Hardwicke's au- 
 thority has been cited on both sides of the question (compare Duke of Leeds v. 
 Munday, 3 Ves. 348, with Ex parte Sergison, 4 Ves. 147) ; but that he approved 
 of the old rule is evident from Ex parte Dowes, cited in Jlr. Sanders's note to Cas- 
 borne v. Scarfe, 1 Atk. 605. Lord Northington and Lord Thurlow are said to have 
 entertained the same opinion. (See Ex parte Sergison. 4 Ves. 147 ; but, as to Lord 
 Thurlow, see an obiter dictum, Pickering v. Vowles, 1 B. C. C. 198.)
 
 260 LEWIN ON THE LAAY OF TRUSTS, ETC. 
 
 henefitj"{xi) nor a devise to A. and her heirs, to be disposed of by her 
 by will or otherwise, as she may think ^t;{y) though under a devise to 
 a woman for her separate iise, as the words import a beneficial enjoyment, 
 a dry legal estate will not pass.(?r) Again, a devise to A. and B., "to 
 be equally divided between them as tenants in common and to their 
 respective heirs," will pass the trust estate. (.r) But where lands are 
 limited in strict settlement, with a vast number of limitations, contingent 
 remainders, executory devises, powers of jointuring, leasing, and raising 
 sums of money, it cannot for an instant be supposed the testator meant 
 to include any lands of which he had not the absolute disposition ;(_y) 
 and the same construction will prevail even when the estate is devised 
 to A. for life or in tail with remainder over.(2) 
 
 The question whether the legal estate in a mortgage in fee passes, 
 requires a separate consideration. The mortgagee has a beneficial inter- 
 est in the property, as a security, a distinction not always sufficiently 
 adverted to, but which is strongly in favour of the legal estate passing to 
 the person who is to receive the mortgage money.(«) Hence the deci- 
 sions establishing that the legal estate passes by a general devise of securi- 
 ties for money, {l>\ and that in the case of such a bequest neither a 
 r*9Rf^T *g6i^6ral trust to sell and convert,(c^ nor a charge of debts,(f7) will 
 L J prevent it from passing; and it is conceived, notwithstanding a 
 former decision of the court of exchequer,(^] that the case of a general 
 devise and bequest of real and personal estate charged with debts admits 
 of no substantial distinction. 
 
 The rule that trust estates will pass under a general devise assumes 
 that a testator by making such a devise does not commit a breach of 
 trust, otherwise general words would not have been construed to carry 
 the trust estate. However, it was observed in one case by the late vice- 
 chancellor of England that in his opinion it was not lawful for a trustee 
 to dispose of the estate, but that he ought to permit it to descend ; and 
 that there was no substantial distinction between a conveyance Vn^er?;iros, 
 and a devise, for the latter was nothing but a po.s'< mortem conveyance. (/) 
 But Lord Langdale considered that there was a wide distinction between 
 a conveyance in the trustee's lifetime and a devise by his will ; for dur- 
 
 (m) Ex parte Shaw, 8 Sim. 159 ; Bainbridge v. Lord Ashburton, 2 Y. & C. 347; 
 Sharpe v. Sharpe, 12 Jur. 598 ; and compare Ex parte Brettell, 6 Ves. 57/, with 
 Braybroke v. Inskip, 8 Ves. 434. 
 
 {v) Ex parte Shaw, 8 Sim. 159. 
 
 (w) Liudsell v. Thacker, 12 Sim. 178. The marginal note of the Report is 
 quite contrary to the decision. 
 
 [x) Ex parte Whitacre, at the Rolls, July 22, 1807, cited 1 Sand. Uses & Trusts, 
 359, 4th ed. See Re Morley's Trust, 10 Hare, 293. 
 
 (?/) Braybroke v. Inskip, 8 Ves. 434, per Lord Eldon. 
 
 (z) Thompson v. Grant, 4 Madd. 438 ; overruling Ex parte Bowes, cited in Mr. 
 Sanders's note to Casborne v. Scarfe, 1 Atk. 605 ; Re IIorsf\all, 1 Maclel. & Younge, 
 292 ; Galliers v. Moss, 9 B. & Cr. 267. 
 
 (a) Doe V. Bennett, 6 Exch. 892 ; and comments of Vice-Chancellor Kindersley 
 on this case, Re Cantley, 17 Jur. 124. 
 
 (6) King's Mortgage, 5 De Gex & Sm. 644, and cases there reviewed. 
 
 YJ ^ parte Barber, 5 Sim. 451 ; Mather v. Thomas, 6 Sim. 115. 
 
 (rf) Field's Mortgage, 9 Hare, 414, overruling Renvoize v. Cooper, 10 Price, 78 ; 
 Knight V. Robinson, 2 K. & J. 503. 
 
 («) Doe V. Lightfoot, 8 M. & W. 553. (/) Cook v. Crawford, 13 Sim. 98.
 
 OF THE LEGAL ESTATE IN THE TRUSTEE. 261 
 
 iDO' his life he had a personal discretion confided to him, which he could 
 not delegate, but the settlor could not have reposed any personal confi- 
 dence in the trustee's heir, for it could not be known beforehand who 
 such heir would be; and that if the estate were allowed to descend, it 
 might become vested in married women, infants, or bankrupts, or persons 
 out of the jurisdiction ; and he could not therefore hold it to be abroach 
 of trust to transmit the estate by will to trustworthy devisees. (^) The 
 propriety or impropriety of a devise of trust estates must evidently depend 
 on all the circumstances of the case. If an estate be conveyed to A. and 
 his heirs upon trust, that A. and his heirs shall execute the trust, it is 
 considered that, in the absence of special circumstances, the trustee ought 
 not to be break the natural devolution of the trust by passing the legal 
 estate to a devisee, while the trust was confided to *the heir; and r*266-| 
 in such a case, the assets of the trustee might perhaps be held L -• 
 liable for the costs of restoring the trust to its proper channel. (A) But 
 it is conceived that if the heir apparent or presumptive were an infant, 
 bankrupt, insolvent, lunatic, feme covert, or out of the jurisdiction, it 
 would be a proper act to transmit the estate to a devisee. 
 
 How far a devisee of the trust estate can execute the trust, will, of 
 course, depend on the intention of the settlor. Thus, real or personal 
 estate may be vested in A. upon trust, that A., personally, shall execute 
 the trust; and in this case, the heir or executor of A., though he take 
 the legal estate, cannot act as trustee. ({) A fortiori in that case the 
 devisee would be a mere depository of the legal estate, without any autho- 
 rity to execute the trust. (Z:) So, if a settlor vest an estate in A. upon 
 trust, that A. and his heir shall sell, &c. ; a devisee being the hceres 
 factus only, and not the hceres natns, cannot exercise the power.(?) 
 
 But it most frequently happens that an estate is vested in A. upon 
 trust, that A., his heirs and assigns, shall hold upon the trusts : and 
 the question then is, whether a devisee of A. may, as falling under the 
 description of assigns, not only take the estate, but also execute the 
 trust ? In a late case, where the settlement contained no power of 
 appointment of neio trustees, it was held, that as a conveyance in the 
 lifetime of the trustee to a stranger would have been a breach of trust, 
 the word assign could mean only a devisee taking under a j^ost mortem 
 conveyance, when the personal confidence in the trustee necessarily 
 ceased ; and the court, on a bill filed by the cestuis que trust for the 
 appointment of new trustees, refused the relief prayed on the ground that 
 the devisees had not only the legal estate, but were properly trustees 
 within the scope of the settlor's intention. (wi) 
 
 (g) Titley v. Wolstenholme, 1 Beav. 435 ; and see Macdonald v. Walker, 14 Bear. 
 556; Wilson t. Bennett, 5 De Gex & Sm. 479. 
 
 (h) See Cook v. Crawford, 13 Sim. 98. 
 
 (i) See Mortimer v. Ireland, 11 Jur. 721. 
 
 (yt) Mortimer V. Ireland, 11 Jur. 721; S. C. before Vice-Chancellor Wigram, 6 
 Hare. 196. . . . , 
 
 {ij Cook V. Crawford, 13 Sim. 91 ; Beasley v. Wilkinson, 13 Jur. 649 ; m which 
 case a devise by a sole surviving devisee in trust of all estates, M-hich at his 
 decease might be vested in him as trustee, and which he could devise tcithout breach 
 of trust, was held by the vice-chancellor of England to pass trust estates. 
 
 (m) Titley v. Wolstenholme, 7 Beav. 425, referred to without disapprobation by 
 Lord Cottenham in Mortimer v. Ireland, 11 Jur. 721.
 
 2G2 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 This case went to the utmost verge, and, indeed, cannot be 
 L "'"'J *implicitly relied upon ; for even where there is no power of 
 appointment, the word "assigns" may be satisfied by holding it to mean 
 a dowress, tenant by the curtesy, or in a case prior to the act excepting 
 trust estates from forfeiture, the lord taking by forfeiture, who are assigns 
 in law. It is, however, at all events clear, that should the settlement 
 contain a power of appointment of new trustees, the word assigns could 
 then receive the construction of persons lawfully appointed under the 
 power, and a devisee would be construed not to be a trustee. Thus, in 
 Fordyce v. Willis(?t) a discretionary trust was limited to trustees, their 
 heirs and assi(/ns ; but the court held, that trustees appointed by the 
 court were not assigns within the contemplation of the power. 
 
 In the recent case of Wilson v. Bennett,(c) the two devisees of the 
 surviving trustee contracted to sell, and the title was held by Vice-Chan- 
 cellor Knight Bruce to be too doubtful to be enforced. It was after- 
 wards discovered that one of the devisees was also the heir of the sur- 
 viving trustee ; but Sir James Parker still held the title to be too doubt- 
 ful, on the ground that the testator had never contemplated such an event 
 as that the estate should vest in the successor and the power go to 
 another. He added, that it would often be the duty of a trustee to take 
 care that the legal estate did not vest in a lunatic, or a person out of the 
 jurisdiction, or otherwise unfit, and for that purpose to devise it 5 but in 
 every case the question was, whether the devise was in accordance with 
 the title under which the trustee held. It will be borne in mind, in 
 explanation of this case, that if an estate be limited to A. and his heirs 
 upon trust, and A. devises the estate, there is in fact no heir ; for the 
 settlor must have meant the heir in respect of the trust estate, and by the 
 devise the descent has been broken and there is no heir. 
 
 In another case,(^)) where leaseholds were assigned to two trustees, 
 their executors and administrators, upon trust; and the surviving trustee 
 devised the leaseholds to A. and B. upon the same trusts, and appointed 
 r*9pQ-i ■^^•' -^-J ^"^ ^- executors : on *a petition by A. and B. to the court 
 L " J to have a trust fund, the proceeds of the leaseholds, paid out to 
 them, Yice-Chancellor Kindcrsley refused, observing, that the surviving 
 trustee had no authority to bequeath the execution of the trust, but could 
 only pass the legal estate. The petition was then amended by joining 
 C. as a co-petitioner, so that the petition was now that of the legatees, 
 and also of the executors ; but the vice-chancellor still refused, on the 
 ground that the testator had himself declared, that his executors as such 
 should not be trustees, and, therefore, since by the bequest, he had taken 
 the legal estate from those who ought to have been trustees, there must 
 be an appointment of new trustees. 
 
 A vendor, after the contract for sale, but before the completion of it, 
 is a trustee for the purchaser sub modo only, and the estate will pass by 
 a general devise in his will, where it would not have been included had 
 the testator been a mere and express trustee. " A constructive and a 
 naked trustee," said Sir T. Plumer, " for many purposes stand in diflfer- 
 
 (n) 2 Phil. 497. (0) 5 Dc G. & Sm. 475. 
 
 (p) Re Bum's Estate, 1 Drew. 319.
 
 OF THE LEGAL ESTATE IN THE TRUSTEE. 263 
 
 ent situations. A mere trustee is a person who not only has no beneficial 
 ownership in the property, but never had any, and could therefore never 
 have contemplated a disposition of it for his own purposes. A vendor 
 was at one time both the legal and beneficial owner, and may again become 
 so if anything should happen to prevent the execution of the contract. 
 It may turn out the title is not good, or the purchaser may be unable to 
 pay, or he may become bankrupt. The purchaser is not entitled to the 
 possession unless stipulated for, and if he should take possession it would 
 be a waiver of any objections to the title. If the purchase-money has 
 not been paid, a court of equity would restrain him at the instance of 
 the vendor." And upon these grounds his honor held in the case that 
 elicited the above remarks, that an estate which was the subject of a 
 contract was included in a general devise to trustee though upon trust to 
 sell. (5) 
 
 As the dry legal estate in the hands of the trustee is affected by the 
 operation of law, and may be disposed of by the act of the trustee, pre- 
 cisely in the same manner as if it were vested *in him benefi- p2691 
 cially, so it confers upon him all the legal privileges, and sub- L "" J 
 jects him to all the legal burdens, that are incident to the usufructuary 
 possession. (r) 
 
 Thus the trustee can bring any action respecting the trust estate in a 
 court of law, the cestui que trust, though the absolute owner in equity, 
 being at law regarded, as a general rule, in the light of a stranger.(.s) So 
 the trustee of a manor is the person to appoint the steward of it,(/) and 
 the trustee of an advowson to present to the church, («) but in either 
 case he has the mere legal right, and is bound in equity to observe the 
 directions of his cesftii que trust.(^v^ 
 
 So where a debtor to the trust estate becomes bankrupt, the trustee is 
 the person to prove for the debt, and that without the concurrence of 
 the cestid que frust,{u-) unless it be such a simple trust as where A. is 
 trustee for B. absolutely, and then it rests in the discretion of the com- 
 missioners to require the concurrence of the cestui que trust; for who 
 knows but that B. may have already received the money ?(ic) 
 
 And originally the trustee as the legal proprietor had the right of 
 voting for coroners j(^)(l) but by the 58 G-. 3, c. 95, sect. 2, it was 
 
 (q) Wall V. Bright, IJ. & W. 494. 
 
 (r) Burgess v. Wbeate, 1 Ed. 251, per Lord Northington. 
 
 (s) See Allen v. Imlett, Holt, 641 ; Gibson v. Winter, 5 B. & Ad. 96 ; May v. 
 Taylor, 6 M. & Gr. 261. 
 
 {() Mott V. Buxton, 7 Ves. 201 ; and see Gary, 14. 
 
 («) See in Re Shrewsbury School, I M. & Cr. 6i1 ; Hill v. Bishop of London, 1 
 Atk. 618. 
 
 (v) Attorney-General v. Parker, 3 Atk. 577, per Lord Hardwicke ; Attorney- 
 General V. Forster, 10 Ves. 338, per Lord Eldon ; Attorney-General v. Newcombe, 
 14 Ves. 7, per eundcni ; Kensey v. Langham, Gas. t. Talb. 144, per Lord Talbot; 
 Amhurst v. Bawling, 2 Vern. 401 ; Barrett v. Ghibb, W. Black. Rep. 1053, per De 
 Grey, J. (w) Ex parte Green, 2 Deac. & Ghit. 116, per Cur. 
 
 (x) Ex parte Dubois, 1 Gox, 310 ; and see Ex parte Battier, Buck, 426 ; Ex parte 
 Gray, 4 D. & Gh. 778. 
 
 {y) Burgess v. Wheate, 1 Ed. 251, as to the right of the cestui que tnist to vote 
 for coroners, see pp. 592, 593, 
 
 (1) And Lord Northington added for "sheriffs," (Burgess v. Wheate, 1 Ed.
 
 26-i LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 enacted, ttat " no person should be allowed to have any vote for or by 
 reason of any trust estate or mortgage, unless such trustee or mortgagee 
 r*9-m should be in actual possession *or receipt of the rents and pro- 
 L "^ J fits of the same estate, but that the mortgagor or cestui que trust 
 in possession should vote for the same." 
 
 So the trustee was the person entitled at common laic to vote for 
 members of parliament ;[z) but by the 8 H. 6, c. 7, it was enacted that 
 every elector should have " a freehold of the value of forty shillings a 
 year at the least, ahove all charges," and the sheriff was authorised to 
 " examine every elector upon oath how much he might expend by the 
 year," and 'af he could not expend forty shillings ly the year," he was 
 disabled from voting. It can scarcely be doubted that from the 
 time of this enactment a trustee, had the sheriff questioned his qualifica- 
 tion, could not have satisfied the requisitions of the act ; but the sheriff 
 probably did not exercise this right of interrogation, and therefore the 
 trustee, as he was i\\Q freeholder, though he could not expend the rents, 
 was allowed to continue in the enjoyment of the franchise, particularly 
 as the cestui que trust, who had not the freehold, was at all events 
 excluded. The 7 & 8 Gul. 3, c. 25, s. 7, enacted, that " no person 
 should vote for or by reason of any trust estate or mortgage, unless such 
 trustee or mortgagee was in actual possession or receipt of the rents and 
 profits of the same, but that the mortgagor or cestui que trust in posses- 
 sion should vote for the same. By the effect of this clause, the cestui 
 que trust, if in possession, was now for the first time entitled to a vote, 
 and the trustee in that case was expressly excluded from the privilege ; 
 if the trustee was in possession or in receipt of the rents and profits, the 
 legislature, without any positive enactment, seems to have regarded the 
 trustee as qualified by the trust estate to be an elector. The 10 Anne, 
 c. 23, s. 2, declared, that " no person should vote who should not have 
 received the rents or profits, or be entitled to have received the same to 
 the full value of forty shillings or more to his oicn iise for one year 
 before such election." The statute of 11. 6, had apparently excluded 
 the trustee, the statute of William had expressly disabled him if not in 
 actual possession or in receipt of the rents and profits ; and now by this 
 |-^(^-.,-j last enactment of Anne he was incapacitated from *giving a vote 
 L -'in any case. By the same statute, any candidate or voter was 
 authorised to administer an oath to the elector at the time of polling, 
 but, among the qualifications particularly enumerated in the oath, that 
 of "receipt of the rents and profits to his own use for one year before the 
 election" was by some oversight omitted. This defect was afterwards 
 remedied by the 18 Gr. 2, c. 18, s. 1, which incorporated into the oath 
 the declaration that the elector had been ^^ in the actual possession or 
 receipt of the rents and prof Is to his own use for two calendar months" 
 before the election. It must be observed that the words " actual posses- 
 
 (z) Burgess v. Wheate, 1 Ed. 251, per Lord Northington. 
 
 251 ;) but the election of sheriffs had been transferred from the people to the 
 chancellor, treasurer, and judges, by 9 E. 2, st. 2, before the establishment of 
 trusts.
 
 OF THE LEGAL ESTATE IN THE TRUSTEE. 265 
 
 sion, or receipt of the rents and profits/' correspond to the expression in 
 the statute of Anne, " who shall not have received the rents and profits 
 to his own use/' and therefore the words " to his own use" in the sta- 
 tute of George must be taken to have applied to '^ actual possession" as 
 well as to " the receipt of the rents and profits." The Reform Act,(a) 
 by the 23rd section, re-enacted the provision of the statute of William 
 3, before referred to ; and by the 26th section declared that, " notwith- 
 standing anything thereinbefore contained, no person should be regis- 
 tered in any year in respect of his estate or interest in any lands or tene- 
 ments as a freeholder, copyholder, &c., unless he should have been in 
 the actual possession thereof, or in receipt of the rents and profits thereof 
 for his oum use, for six calendar months previous to the last day of July 
 in such year /' thus, it would seem, leaving the law in respect of trus- 
 tees precisely on the same footing as it stood before the act was passed. 
 All doubt, however, was removed by the 6th Vict. c. 18, the 74th sec- 
 tion of which enacts, that " no trustee of any lands or tenements shall 
 in any case have a right to vote in any such election for or by reason of 
 any trust estate therein, but that the cestui que trust in actual possession 
 or in the receipt of the rents and profits thereof, though he may receive 
 the same through the hands of the trustee, shall and may vote for the 
 same notwithstanding such trust." 
 
 Again, the trustees are liable to be rated for the property vested in 
 them,(&) unless they are trustees exclusively for ^public pur- r*2721 
 poses without any profit to themselves or a particular class. (c) L "'J 
 The trustee of a copyhold must pay a fine on his admission, (cZ) and on 
 his decease a heriot becomes due to the lord.(<3) But, where two or 
 more trustees have been admitted yoi"n%, on the decease of one neither 
 fine nor heriot is due ; not a fine for admission, because, joint tenants 
 being seised j)er my et per tout, the estate has vested in the survivors by 
 the original grant, and not a heriot, because, however many in number 
 the trustees may be, they u\\ form but one tenant to the lord, and there- 
 fore no heriot is demandable until the death of the longest liver.(/) 
 Where a number of trustees are admitted as the joint owners of the trust 
 estate, the fine is to be assessed upon the following principle : for the 
 first life is to be allowed the fine usually paid on the admission of a 
 single tenant, on the second life one-half the sum taken for the first, 
 and on the third one-half the sum taken for the second, &c. ; the result 
 of which will be, that, however great the number of the trustees admitted, 
 the amount of the whole fine will never be double of that paid upon the 
 first life.ff/) And on every change of trustees the same fine is demand- 
 able : even where some of the surrenderees are the survivors of the old 
 
 (a) 2 Gul. 4, c. 45. {b) Queen v. Sterry, 12 Ad. & Ell. 84. 
 
 (c) Regina v. Shee, 4 Q. B. Rep. 2 ; Mayor of Manchester v. Overseers of Man- 
 chester, 17 Q. B. Rep. 859; Queen v. Harrogate Commissioners, 15 Q. B. Rep. 
 1012. 
 
 {d) Earl of Bath v. Abney, 1 Dick. 260 ; S. C. 1 Bur. 206. 
 
 (e) Trinity College v. Browne, 1 Vern. 441 ; see Car v. Ellison, 3 Atk. 77. 
 
 (/) See 2 Watk. Cop. 147. 
 
 (V) Wilson V. Hoare, 2 B. & Ad. 350, see 360 ; 10 Ad. & Ell. 236, and 1 Scnvcn, 
 Copyh. 393, 394, 3rd edit.
 
 2G6 LEWIN ON THE LAW 01 TRUSTS, ETC. 
 
 trustees, for tbey take a new estate. (/«) Though the manorial burdens 
 fiill upon the trustee personally at law, he is of course entitled in equity 
 to reimburse himself the expenditure out of the profits of the estate. (/) 
 
 If a trustee carry on a trade in the due execution of his trust, he 
 
 makes himself amenable to the operation of the bankrupt law in the 
 
 same manner as if he had traded for his own benefit,(A-) and on his 
 
 decease his lands were liable under *Sir Samuel Romilly's Act(/) 
 
 L J to the discharge of simple contract debts.(?>i) 
 
 II. Of the legal estate in the trustee with reference to the construction 
 of particular statutes. 
 
 1. By the 12 & 13 Vict. c. 106, ss. 141, 142, it is enacted, that " all 
 the personal estate, present and future, of the bankrupt, whersoever the 
 same may be found or known, and all property which he may purchase, 
 or which may revert, descend, be devised or bequeathed, or come to him 
 before he shall have obtained his certificate, and all lands, tenements, 
 and hereditaments, except copyhold or customaryhold, to which the 
 bankrupt is entitled, and all interest to which such bankrupt is entitled 
 in any of such lands, tenements, or hereditaments, and of which he 
 might have disposed, and all such lands, tenements, and heredita- 
 ments as he shall purchase, or shall descend, be devised, revert to, or 
 come to such bankrupt before he shall have obtained his certificate," 
 shall vest in the assignees of such bankrupt. 
 
 The operation of the bankruptcy acts was thus commented upon by 
 Lord Chief Justice Willes : — " The assignees," he said, " under a com- 
 mission of bankruptcy, are not to be considered as general assignees of 
 all the real and personal estate of which the bankrupt was seised and 
 possessed, as heirs and executors are of the estate of their ancestors and 
 testators, for nothing vests in the assignees even at law but such real 
 r*2741 ^^^ ^personal estate of the bankrupt in which he had the equita- 
 L -I ble as well as legal interest, and which is to be applied to the 
 payment of the bankrupt's debts."(7i) 
 
 It is clear, therefore, that, in the case of a hare trust, the property, 
 
 {h) Sheppard v. Woodford. 5 Mees. & Welsb. G08 ; but see Wilson v. Hoare, 10 
 Ad. & Ell. 236. 
 
 {i) Rivet's case, Moore, 890. 
 
 (k) Wigbtman v. Townroe, 1 M. & S. 412 ; Ex parte Garland, 10 Ves. 119, per 
 Lord Eldon ; Hankey v. Han^mond, cited iu marginal note to 1 Cooke's Bank. Law, 
 84, 3d ed. 
 
 {I) 47 G. 3, c. 74. Repealed, and re-enacted by 11 G. 4, and 1 Will. 4, c. 47. 
 Now by 3 & 4 W. 4, c. 104, tbe lands of all persons, traders or otherwise, are lia- 
 ble to their simple contract debts. 
 
 (m) Longuet v. Hockley, Feb. 16, 1836, Exch. MS. Moss Levy, a trader in part- 
 nership with his brother Lewis Levy, and his cousin Walter Levy, devised and be- 
 queathed all his real and personal estate to Hockley, upon trust to convert the 
 same into money, and to stand possessed of the proceeds upon certain trusts in 
 the will mentioned. Hockley, in breach of his duty, continued the business with 
 the two co-partners in the name of the testator, and died indebted to the trust 
 estate in the sum of llOOZ., and without leaving sufficient personal assets. Baron 
 Alderson held clearly, that Hockley was a trader within the meaning of the sta- 
 tute, and that his lands were liable for the money due to the trust. 
 
 (n) Scott V. Surman, Willes, 402.
 
 OF THE LEGAL ESTATE IN THE TRUSTEE. 2G7 
 
 whether real(o) or personal,(p) will not vest by the bankruptcy in the 
 assignees, even at late And the proposition applies not only to the case 
 of express trustees, but also oi trustees virtute ojiicii, as executors, adminis- 
 trators, ((/) factors,(rj &c. 
 
 And, where the trust estate or fund has been converted into property 
 of a different character, the new acquisition will equally be protected 
 against the effects of the bankruptcy; for the product or substitute of 
 the original thing must follow the nature of the thing from which it 
 proceeded. (.s) Thus, if goods consigned to a factor be sold by him and 
 reduced into money, so long as the money can be identified, as, where it 
 has been kept in bags, the employer, and not the creditors, will have 
 the benefit of that specific sum.(/) When money is said to have no ear- 
 mark, the meaning is no more than this, that, being the currency of the 
 country, it cannot be followed when once it has passed in circulation. (w) 
 
 So, if the factor sell the goods and take notes in payment, the value 
 of the notes, notwithstanding the bankruptcy, may be recovered by 
 action from the assignees ;(i') for, though *negotiable securities r^pyK-i 
 are said, like money, to have no ear-mark, the expression does L "^ J 
 not intend that such securities in the hands of a bankrupt have run into 
 the general mass of his property, and pass to his assignees, but only 
 that negotiable securities, as a circulating medium in lieu of money, 
 cannot be recovered from a person to whom they have been legally 
 negotiated ; and it is clear that notes, should they fall into possession 
 otherwise than in a due course of circulation, do not become the proper- 
 ty of the person into whose hands they come, but may be followed by the 
 original possessor, (w) 
 
 So, if a factor sell the goods of his employer for money payable at a 
 future day, and become bankrupt, and the assignees receive the money, 
 they will be answerable for it to the merchant by whom the factor was 
 employed, (x) 
 
 In another case the conversion had been in hreacJi of the factor's 
 
 (o) Ex parte Gennys, 1 Mont. & Mac. 258 ; Houghton v. Kocnig, 18 Com. B. 
 Re. 235. 
 
 (p) See Winch v. Keeley, 1 T. R. 619 ; Carpenter v. Marnell, 3 B. & P. 40 ; Glad- 
 stone V. Hawden, 1 M. & S. 517. 
 
 (q) Howard v. Jemmet, 3 Bur. 1369, per Lord Mansfield; Ex parte Butler, 1 Atk. 
 213, per Lord Hardwicke ; Viner v. Cadell, 3 Espin. 88 ; Farr v. Newman, 4 T. R. 
 629, per Grose, J.; see Ex parte Ellis, 1 Atk. 101. 
 
 (r) Godfrey v. Furzo, 3 P. W. 186, per Lord King; Tooke t. Hollingworth, 5 T. 
 R. 226, per Lord Kenyon; L'Apostre v. Le Plaistrier, cited Copeman v. Gallant, 1 
 P. W. 318 ; Delauney v. Barker, 2 Stark. 539; Boddy y. Esdaile, 1 Car. & P. 62 ; 
 see Ex parte Dumas, 2 Ves. 582 ; S. C. 1 Atk. 232 ; Paul v. Birch, 2 Atk. 623 ; 
 Rvall V. Rolle, 1 Atk. 172; Ex parte Chion, note (A) to Godfrey v. Furzo, 3 P, 
 W. 187. 
 
 (s) See Taylor v. Plumer, 3 M. & S. 575 ; Scott v. Surman, Willcs, 404. 
 
 [t) Tooke V. Hollingworth, 5 T. R. 227, per Lord Kenyon ; see Taylor v. Plu- 
 mer, 3 M. & S. 571. 
 
 (u) Miller v. Race, 1 Bur. 457, per Lord Mansfield; see Taylor v. Plumer, 3 M. 
 &S. 571. 
 
 (v) Anon, case, cited Ex parte Dumas, 2 Ves. 586. 
 
 (w) Hartop v. Hoare, 3 Atk. 50, per Lee, C. J.; Miller v. Race, 1 Burr. 457. 
 
 (x) Ryall V. Rolle, 1 Atk. 172, per Burnet, J.; Taylor v. Plumer, 3 M. & S. 577 ; 
 Zlnck V. Walker, 2 W. Bl. 1154 : Garrat v. CuUum, BulL N. P. 42.
 
 268 LEWIN ON THE LAAV OF TRUSTS, ETC. 
 
 fjuty ;(y) and it was argued, that, as the principal would not have been 
 bound to accept the property which the agent had wrongfully purchased, 
 the court ought to give a lien to the principal upon the tortious acquisi- 
 tion ; but the court said, it was impossible that an abuse of trust could 
 confer any right on the person abusing it, or those claiming in privity 
 with him.(2;) 
 
 Where the legal property does not pass, any action against the assig- 
 nees must be brought by the bankrupt himself, for he is the person 
 possessed of the legal right 5(22) but, in the case of a factor, an action 
 mav also be brought by the principal, for the absolute property remains 
 with the employer, and a special property only vests in the agent.(a) 
 But, if hills be remitted to a factor, and made payable to him or his 
 order, it has been doubted whether the property does not so vest in the 
 *factor that no action of trover can be maintained by the princi- 
 L -^'^J pal.(i) 
 
 If the property possessed by the bankrupt in his character of trustee 
 has become so amalgamated with his general property that it can no 
 longer be identified, the representative of the trust has then no other 
 remedy but to come in as a general creditor, and prove for the amount 
 of the loss.(o) But, in one case, though the trust money had got into 
 the general fund, it was held, but under very particular circumstances, 
 that it had subsequently got out again.(^d'^ 
 
 As a general rule, where the bankrupt has a substantial beneficial 
 interest, however small, in property legally vested in him, such property 
 passes to the assignees, who take as trustees for the creditors and other 
 parties interested. (e) It is conceived, however, that the rule would not 
 apply to a case where a bankrupt is clearly and expressly a trustee, 
 though he may himself have some partial beneficial interest, for his act 
 ought not to work a prejudice to others. And there can be little doubt 
 that the court would, in a case of express trust, appoint new trustees, 
 either under the 130th section of the Bankrupt Consolidation Act^/) or 
 its general jurisdiction. Where the trust is constructive and the equity 
 doubtful the court has sometimes directed the assignees to concur in 
 conveying. (y) And where the legal property passes, the cestuis que 
 trust may have the same relief in equity against the asssignees, as they 
 would have been entitled to against the bankrupt himself.(/i) 
 
 (y) Taylor v. Plumer, 3 M. & S. 562 ; see Rvall v. Rolle, 1 Atk. 172. 
 
 [z] Taylor v. Plumer, 3 M. & S. 574, per Lord Ellenborough. 
 
 (zz) Winch v. Keeley, 1 T. R. 619; Carpenter v. Maruell, 3 B. & P. 40. 
 
 (a) L'Apostre v. Le Plaistrier, cited Copeman v. Gallant, 1 P. W. 318; Dclau- 
 ney v. Barker, 2 Stark. 539; Boddy v. Esdaile, 1 Car. 62. 
 
 (b) Ex parte Dumas, 2 Ves. 583. 
 
 (c) Ex parte Dumas, 1 Atk. 234, per Lord Hardwicke ; Ryall v. Rolle, 1 Atk. 
 172, per Burnet, J.; Scott v. Surman, Willes, 403, 404, per Willes, C. J. 
 
 {d) Ex parte Sayers, 5 Ves. 169. 
 
 (e) Carpenter v. Marnell, 3 Bos. & Pull. 40 ; Parnham v. Hurst, 8 M. & W. 743; 
 Leslie V. Guthrie, 1 Bing. N. C. 697 ; D'Arnay v. Chesneau, 13 M. & W. 809. 
 
 (/) Ex parte Cousen, 1 De Gex, 451 ; in which particular case, however, the 
 wording of the section created a difficulty. 
 
 iff) Bennet v. Davis, 2 P. W. 316 ; Ta'ylor v. Wheeler, 2 Vern. 564 ; Ex parte 
 Gennys, Mont. & Mac. 258. 
 
 (h) Bennet v. Davis, 2 P. W. 316; Taylor v. Wheeler. 2 Vern. 564; Mitford v.
 
 OF THE LEGAL ESTATE IN THE TRUSTEE. 209 
 
 *By the 12 & 13 V. c 106, s. 125, it is enacted, that '< if r^oy^-i 
 any bankrupt, at the time he becomes bankrupt, shall by the L " J 
 consent and permission of the true owner thereof ha-Ye in his possession, 
 order, or disposition, any goods or chattels whereof he was reputed 
 owner, or whereof he had taken upon him the sale, alteration, or dispo- 
 sition as owner, the court shall have power to order the same to be sold 
 and disposed of for the benefit of the creditors under the bankruptcy." 
 
 It has been decided that this enactment does not apply where the 
 possession of the goods by the bankrupt can be satisfoctorily accounted 
 for by the circumstances of the title, as, if a trustee be in possession of 
 effects upon trust for payment of debts, and become bankrupt,(i) or if 
 goods be vested in A. upon trust to permit B. to have the enjoyment 
 during his life, and B. becomes bankrupt while in possession under his 
 equitable title ;[k) but if a residue be given to trustees upon trust to sell 
 with all convenient speed, and to invest the proceeds in the purchase of 
 an annuity for the lives of A. (one of the trustees) and her children, the 
 amount to be paid to A. for the benefit of the children : if, instead of 
 selling, the trustees permit A. to retain possession for a length of time, 
 the goods are forfeited, such possession being contrary to the title. (/) 
 
 The enactment does not extend to a lawful and necessary possession 
 en aider droit, as that by executors and administrators 5 (m) but there will 
 be no exemption from the forfeiture if the executor can be proved to 
 have dismissed the character of personal representative, and to have 
 assumed that of absolute owner. («) 
 
 [*278] 
 
 *Whether the permission of a bare trustee can be said to be 
 that of the "true owner," to the prejudice of innocent cestnis 
 que trvat, is a question of some difficulty, but which upon principle 
 should, it is conceived, be answered in tlae negative. (0) It has been 
 decided that a cestui que trust absolutely entitled is a true owner within 
 the meaning of the clause. (^) 
 
 Upon the same principle must be excepted from the operation of the 
 clause the possession of goods by factors in the ordinary course of 
 trade. (^) 
 
 Mitford, 9Ves. 100, per Sir W. Grant; Ex parte Dumas, 2 Ves. 585, per Lord Hard- 
 wicke; Hinton v. Hinton, 2 Ves. 633, per eundern ; Grant v. Mills, 2 V. & B. 309, 
 per SirW. Grant; Tyrrell v. Hope, 2 Atk. 558; Bowles v. Rogers, 6 Ves. 95, 
 note (a) ; Ex parte Hanson, 12 Ves. 349, per Lord Eldon ; Ex parte Coysegame, 1 
 Atk. 192; see Mestaer v. Gillespie, II Ves. 624; Ex parte Herbert, 13 Ves. 188 ; 
 Waring v. Coventry, 2 M. & K. 406. (i) Copeman v. Gallant, 1 P. W. 314. 
 
 (k) Ex parte Martin, 19 Ves. 491 ; S. C. 2 Rose, 331 ; see Ex parte Horwood, 1 
 Mont. & Mac. 169 ; Mont. 24; Jarman v. Wooloton, 3 T. R. 618 ; Ex parte Massey, 
 2 Mont. & Ayr. 173; Ex parte Elliston, 2 Mont. & Ayr. 365 ; Ex parte Greaves, 2 
 Jur. N. S. 651 ; Re Bankhead's Trust, 2 Kay & Johns. 560. 
 
 {I) Ex parte Moore, 2 Mont. D. & De G. 616 ; and see Fox v. Fisher, 3 B. & A. 
 135; Ex parte Thomas, 3 Mont. D. & De G. 40. 
 
 {m) Ex parte Marsh, 1 Atk. 158 ; Joy v. Campbell, 1 Sch. & Lef. 328. 
 
 {n) Fox V. Fisher, 3 B. & A. 135 ; Ex parte Moore, 2 Mont. Deac. & De G. 616 ; 
 Ex parte Thomas, 3 Mont. Deac. & De G. 40 ; see Quick v. Staines, 1 B. & P. 293 ; 
 Whale V. Booth, cited Farr v. Newman, 4 T. R. 625, note [a). 
 
 {0) Compare Ex parte Dale, Buck, 365 ; Ex parte Richardson, Buck, 480 ; Ex 
 parte Ilorwood, 1 Mont. & Mac. 169, Mont. 24; Viner v. Cadell, 3 Esp. 88. 
 
 (p) Ex parte Burbridge, 1 Deac. 131, 4 Deac. & Ch. 87. 
 
 {q) Mace v. Cadell, Cowp. 232; Ex parte Pease, 19 Ves. 46, per Lord Eldon; 
 
 February, 1858.— 18
 
 270 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 2. By the Insolvent Act the real and personal estates of insolvents 
 are made to vest in the assignees, and where goods or chattels are in the 
 possession of an insolvent at the time of his arrest or other commence- 
 ment of his imprisonment by the consent of the true owner, they are 
 made to pass to the assignee as if they were the insolvent's own pro- 
 perty.(r) 
 
 Upon this enactment of the Insolvent Act we have only to remark, 
 that, as it substantially follows the provisions of the Bankruptcy Act, it 
 must in the analogous cases be governed by the same construction. 
 
 3. Judgments, at least so far as they affect lands {iox execution 
 against goods and chattels is by common law,) derive their effect from 
 certain statutory enactments. (s) 
 
 Had trusts been established at the time these statutes were passed, 
 the construction would probably have been the same as in the case of the 
 bankruptcy and insolvency acts, that is, judgments would have been 
 held to bind those lands only of which the conusee was seised beneficially, 
 but trusts at the period of which we are speaking had not made their 
 appearance, and therefore judgments have been held to bind all lands 
 r*97on *°^ ^^^ conusee, whether vested in him beneficially, or in the 
 L " J character of trustee. But of course the cestui que trust will 
 be protected from the legal process by application to a court of equity.(^) 
 
 SECTION III. 
 
 WHAT PERSONS TAKING THE LEGAL ESTATE WILL BE BOUND BY THE 
 
 TRUST. 
 
 The universal rule, as trusts are now regulated, is, that all persons 
 who take through or under the trustee shall be liable to the execution 
 of the trust. 
 
 On the death of the trustee, the heir, executor, or administrator, 
 becomes the legal owner of the property ; but as he merely represents 
 the ancestor, testator, or intestate, he takes it in the same character, and 
 is therefore bound by the same equity. 
 
 So, if a trustee devise the estate, the devisee takes the estate subject 
 to the trust.(i<) 
 
 So all assigns of the trustee by acts inter vivos (exceTpt purchase7-s for 
 valuable consideration icithout notice,) will be bound by the trust.(r) 
 
 During the system of uses, and even for a short time subsequently to 
 
 L'Apostre v. Le Plaistrier, cited Copeman v. Gallant, 1 P. W. 318 ; Whitfield v. 
 Brand, 16 M. &W. 282. 
 
 (r) 1 & 2 Vict. c. 110, ss. 3T, 57 ; and see 5 & 6 Vict. c. 116, s. 1 ; 7 & 8 Vict. 
 c. 96, ss. 4, 17. 
 
 (s) 11 E. 1 ; 13 E. 1, St. 1, c. 18; 13 E. 1, st. 3 ; 27 E. 3, st. 2, c. 9 ; see Co. Lit. 
 289, b. ')!))) 
 
 r>S^^ Z^^^^ ^' ^^^^ °^ Winchelsea, 1 P. W. 277 ; Burgh v. Francis, 1 Eq. Ca. Ab. 
 320; Medley V. Martin, Finch, 63 ; Prior v. Penpraze, 4 Price, 99; Langton v. Hor- 
 ton, 1 Hare, 560, per Sir. J. Wigram. 
 
 (m) Marlow v. Smith, 2 P. W.201, per Sir J. Jekyll ; Lord Grenville v. Blvth, 16 
 Ves. 231, per Sir W. Grant. (^) See infra.
 
 [*281] 
 
 OF THE LEGAL ESTATE IN THE TRUSTEE. 271 
 
 the statute of H. 8, assigns of the trustee in the per only, that is, by 
 the immediate act of the trustee, as by assignment, were made liable to 
 the trust ; but now assigns in the post, or by operation of law, are also 
 invested with the character of trustees ; as if a trustee marry, the wife is 
 at laio entitled to her dower, and if a female trustee marry, the husband 
 is at law entitled to his curtesy, but in equity both the doioress{iv) and 
 tenant hy the curtesy{x) are compellable to recognise the right of the ces- 
 tui que trust. So a creditor of the *trustee extending the trust r*2801 
 estate under an elegit,{ij) or taking a trust chattel by writ of exe- L J 
 cution,(,i) and, by the same rule, the assignees of a bankrupt or insolvent(a) 
 are made subject to the equity. 
 
 And if the trustee commit a. forfeiture, the lord, as he succeeds to the 
 identical estate of the forfeitor, must take the property with all the 
 engagements and incumbrances attached to it, and is therefore liable to 
 the trust.(6) In the case of a forfeiture to the king, it was formerly 
 held there was no equity against the crown ;(c) but in modern times the 
 equity has been fully admitted, though the precise nature of the remedy 
 has never been distinctly ascertained. (cZ) 
 
 A lord taking by escheat stands on a somewhat different footing, for 
 he is not an assign of the trustee either in the per *or post ; nor 
 does he, as in forfeiture, succeed to the place of the trustee, but 
 claims by a title paramount of his own, by virtue of a condition originally 
 annexed to the land, and wholly independent of the creation of the trust. 
 
 (w) Pawlett V. Attorney-General, Hard. 469, per Lord Hale ; Noel v. Jevon, 
 Freem. 43 ; Hinton v. Hinton, 2 Ves. 634, per Lord Hardwicke. 
 
 (x) Bennet v. Davis, 2 P. W. 319. 
 
 (y) Pawlett V. Attornej'-General, Hard. 467, per Lord Hale; Kennedy v. Daly. 
 1 Sch. & Lef. 373, per Lord Redesdale ; Finch v. Earl of Winchelsea, 1 P. W. 277 ; 
 Burgh V. Burgh, Rep. t. Finch, 28. In the late case of Whitworth v. Gaugain, 1 
 Cr. & Phil. 325, where a person made a deposit of title deeds, and then a judgment 
 was entered up against him, Lord Cottenham expressed a doubt whether the 
 judgment creditor, if he had no notice, would be bound by the prior equity. How- 
 ever, such a doctrine was not tenable, for a judgment creditor is 7iot a purchaser 
 for valuable consideration. Brace v. Duchess of Marlborough, 2 P. W. 491. He 
 advances money, but not on the security of this estate. He may take the person 
 of his debtor, or his goods and chattels, and if he is put in possession of the lands, 
 it is not as purchaser of them, but by course of law. The cause was afterwards 
 heard, and Lord Cottenham's doubts were displaced by a decision the other way, 
 3 Hare, 416; 1 Phil. 728. In Watts v. Porter, Q. B. 1 Jur. N. S. 134, three of the 
 four judges, while approving of Whitworth v. Gaugain, refused to apply the prin- 
 ciple of ft to a case of stock. The remaining judge differed, and held that in per- 
 sonal as in real estate, the specific incumbrancer, though he gives no notice to 
 the trustee, prevails over the judgment creditor, though he has obtained a charg- 
 ing order. It is conceived that the single judge took the clearer view. Those 
 who determined the other way, seem to have assumed that notice was necessary 
 for the transfer of an equitable interest, which is not true, as between assignor 
 and assignee, but only as between two contending assignees. The case has since 
 been disapproved by the highest authorities, Beavan v. Lord Oxford, 2 Jur. N. S. 
 12L 
 
 (z) Foley v. Burnell, 1 B. C. C. 278, per Lord Thurlow. 
 
 (a) See supra, p. 276. 
 
 (b) Burgess v. Wheate, 1 Ed. 203, per Sir T. Clarke; ib. 252, per Lord Henley. 
 
 (c) Wikes's case, Lane, 54, agreed. 
 
 (d) Burgess v. Wheate, 1 Ed. 252 ; and see Pawlett v. Attorney-General, Hard. 
 467, which was a case of forfeiture, though treated by Lord Hale as a case of 
 escheat. And see supra, p. 30.
 
 .>72 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 Lord Mansfield was of opinion, in Burgess v. Wheate, that a trust ought 
 to be binding on the lord ; whether the escheat was to be looked upon 
 as a reversion, which it once was, or as a caducary possession ah intestato, 
 which his lordship conceived it to be in his day.(e) Considering the 
 escheat as a reversion, his lordship contended that every alienation for 
 creatino- a trust supposed a concomitant investiture to which the assent 
 of the lord was implied, and therefore it followed that, on failure of heirs 
 of the alienee in trust; the lord could not claim to his own use against 
 the terms of the grant. But to this it may be answered — first, that, since 
 the Statute of Quia Emptores, it is doubtful, whether any such assent of 
 the lord can be supposed ; for, should it be optional with the lord to 
 accept the alienee as his tenant or not, it would abridge the subject of 
 that free power of alienation which the statute was intended to confer 
 upon him. On the execution of the conveyance the alienee holds of the 
 lord above, not by the lord's consent, but by the operation of law. But 
 even admitting the lord to have assented by implication to the transfer 
 of the land, it scarcely seems to follow that he is bound by the terms of 
 the trust ; for if A. convey to B. and his heirs in trust for C. and his 
 heirs, the assent of the lord to the alienation appears to amount only to 
 this — that B. and his heirs shall be tenants of the estate, and shall, as 
 such tenants, hold in trust for C. and his heirs, not that the lord himself 
 will execute the trust, should his own title commence by the determina- 
 tion of B.'s estate. But even supposing the lord to have expreasJij agreed 
 to execute the trust in the event of an escheat, still, as on failure of heirs 
 of the trustee the legal estate of the property becomes vested in the lord, 
 could equity, consistently with established principles, enforce a convey- 
 ance against him on a mere voluntary contract ? The verbal agreement 
 -^ of the lord could in no wise be construed a declaration of trust, 
 L "'-' for, *by the Statute of Frauds, every such declaration must be in 
 writing and signed. Considering the escheat in the light of a caducary 
 possession ah intestato, his lordship's argument was, that, as the lord can 
 only take the estate ah intestato ahsolutely, he cannot assert a claim so 
 far as the tenant has aliened, and inasmuch as the trustee by a declara- 
 tion of trust makes a valid disposition of the estate in equity, it follows 
 that a court of equity cannot sufi"er the land to vest in the lord, as if no 
 disposition had been made. But to this it may be answered, that a dis- 
 position hy loay of trust is of a totally difterent character from a dispo- 
 sition of the legal estate. The latter is binding upon all, whether in the 
 2)er ox post, whether with notice or without, whether the grantee be a 
 purchaser or volunteer ; but the existence of a trust depends on the 
 equity against the legal tenant personally ; as, if the estate be purchased 
 for a valuable consideration without notice, the trust is determined, and 
 the cestui que trust is without remedy. It follows that, as the lord claims 
 by a title of his own paramount to the creation of the trust, the court 
 cannot take from him a lawful possession upon the ground of a trust 
 declared by a stranger, and that subsequent to the commencement of the 
 lord's right. A trust is binding only as hetween the cestui que trust and 
 
 {e) Burgess v. Wheate. 1 Ed. 229.
 
 OF THE LEGAL ESTATE IN THE TRUSTEE. 273 
 
 the trustee, and all claiming hy and imder them, and does not affect the 
 interest of a third person. (/) If an estate were settled on A. and his 
 heirs, with a springing use on a certain event to B. and his heirs, a 
 declaration of trust in fee by A. could not possibly, on the determination 
 of A.'s estate, bind the interest of B. ; yet such a limitation over is hardly 
 to be distinguished from the case of the lord's title by escheat. The 
 only authorities adduced by his lordship in support of his position were 
 the opinions said to have been expressed by Lord Chief Justice Bridgman 
 and Sir John Trevor :(r/) but the words attributed to the former appear, 
 from his own note-book, never to have been spoken ;(/i) and the observa- 
 tion of Sir John Trevor was at the utmost a mere obiter dictum. Sir 
 Thomas *Clarke, who assisted with Lord Mansfield in the case of r*283'l 
 Burgess v. Wheate, declared ihs^t cestui que trust was no more re- L "" J 
 lievable against the lord by escheat, than against a sale by the trustee to 
 a purchaser without notice ;(i) and Lord Northington's inclination was 
 apparently the same way, though, as the point was not necessarily involved 
 in the question before him, he refused to conclude himself by any express 
 and direct opinion. (Z;) Trusts also are shaped after the pattern of uses, 
 and it is clear that the lord was not bound by a use. 
 
 On the other hand it may be said that, whatever may be right on dry 
 technical reasoning, there is an old authority for holding that the lord 
 taking by escheat is liable to the trust,(?) and that in modern times the 
 courts have acted on more liberal principles, and have decided that, where 
 the fee out of which a mortgage term had been carved escheated to the 
 lord, he was allowed to redeem,(??i) and if the lord take a benefit through 
 the tenant why shall he not sustain an onus ? Indeed an opinion to that 
 effect has recently fallen from the bench in Ireland, (?i) and should the 
 point, notwithstanding the 13 & 14 Vict. c. 60, to be noticed presently, 
 ever call for a decision, it is not unlikely that the court may adopt that 
 view. 
 
 In copyholds there is, properly speaking, no such thing as escheat. 
 The freehold and inheritance are vested in the lord of the manor, and 
 the tenant has no claim but as the lord signifies his pleasure by the entry 
 on the court roll. If the tenant be a trustee, and no trust appears on the 
 roll, there can be no pretence for charging the lord with an equity to 
 which he never assented ;{o) but if a surrender be made upon a trust 
 either expressed or referred to on the roll, the lord is estopped by this 
 evidence of his will, and cannot afterwards claim in contradiction to his 
 grant, (p) 
 
 (/) Burgess v. Wheate, 1 Ed. 251, per Lord Northington. See lutroductiou. 
 pp. 12, 13. 
 
 Ig) Burgess v. Wheate, 1 Ed. 230. . 
 
 (h) See ib. 230, note (a) ; and see Sir T. Clarke's observations, ib. 202. 
 
 \i) Burgess v. Wheate, 1 Ed. 203. {k) Burgess v. Wheate, 1 Ed. 24b. 
 
 {I) Bales v. England, 1 Eq. Ca. Ab. 384. 
 
 {m) Viscount Downe v. Morris, 3 Hare, 394. 
 
 (n) White v. Baylor, 10 Ir. Eq. Rep. 54. :, t> i. 
 
 (o) Attorney-General v. Duke of Leeds, 2 M. & K. 343 ; and see Peachey v. 
 Duke of Somerset, 1 Str. 454; Burgess v. Wheate, 1 Ed. 231 ,, , „ „ 
 
 (p) Burgess v. Wheate, 1 Ed. 231, per Lord Mansfield; Weaver v. Maule, 2 U. 
 & M. 97.
 
 274 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 Customary freeJiolds have often been treated on the same 
 [ ^o4J *fQQjijjg ^ith copyhoIdSj(2) but perhaps upon principle a clear 
 distinction may be taken. In customary freeholds the tenure is copy- 
 hold, but in respect of interest the freehold and inheritance are in the 
 tenant, and, on failure of his heirs, the lord takes in the strict sense of 
 the word by escheat. The lands are passed by the bargain and sale, and 
 the subsequent surrender and admittance operate merely as notice to the 
 lord of the transfer, and acceptance by him of the grantee as tenant.(>-) 
 If a surrender therefore be made to A. and his heirs upon trust for B. 
 and his heirs, and the trust be entered on the roll, the effect would be 
 the same as on the alienation of a freehold ; the lord merely assents that 
 A. shall be his tenant, and shall, as tenant, hold the land upon certain 
 trusts, not that the lord himself will be a trustee, should his own title 
 commence by escheat. And even should the construction be carried to 
 that extent, the cestui que trust would still not be relievable in equity, 
 the agreement being merely a voluntary one, and not in writing and 
 signed as required by the Statute of Frauds. 
 
 A distinction was taken by Lord Hale between a trust and an equity 
 of redemption. " A trust," said his lordship, " is created by the con- 
 tract of the party, and he may direct it as he pleaseth, and he may pro- 
 vide for the execution of it, and therefore one that comes in in the post 
 shall not be liable to it without express mention made by the party ; and 
 the rules for executing a trust have often varied, and therefore they only 
 are bound by it, who come in in privity of estate ; but a power of redemp- 
 tion is an equitable right inherent in the land, and binds all persons in 
 the |JOs^ or otherwise,(s) because it is an ancient right which the party is 
 entitled to in equity.'Y/) But upon this distinction it must be observed, 
 that even a trust will at the present day bind persons who take deriva- 
 tively from the trustee, though in the 'post; and notwithstanding an 
 equity of redemption amounts to what Lord Hale calls a title,(yj there 
 r*'?fiSl *^^^^^ ^^ ^6 ^0 reason why in the case of escheat the lord, who 
 L "^ -* takes by title paramount, should be bound by an equity of redemp- 
 any more than by a simple- trust.(«) 
 
 In a late case,(w) however, the distinction between an equity of 
 redemption and a trust was observed upon, and the court manifested an 
 opinion that a lord who was in by escheat would be bound by an equity 
 of redemption, if not by a trust. And in the same case was decided the 
 point before referred to, that a lord who is in by escheat is entitled to re- 
 deem a mortgage term created by the party whose estate has .escheated. (x) 
 
 [q) Weaver v. Maule, 2 R. & M. 100, per Sir John Leach. 
 
 {r\ Bingham v. Woodgate, 1 R. & M. 32. 
 
 («) Semble not a purchaser without notice; see Harding v. Hardrett, Rep. t. 
 Finch, 9 ; Spurgeon v. Collier, 1 Ed. 55. 
 
 (t) Pawlett V. Attorney-General, Hard. 469; and see Bacon v. Bacon, Tothill, 
 133; Burgess v. Wheate, 1 Ed. 206; Tucker v. Thurstan, 17 Yes. 133. 
 
 M See Pawlett v. Attorney-General, Hard. 46V. 
 
 (v) See Burgess v. Wheate, 1 Ed. 255; Attorney-General v. Duke of Leeds, 2 
 M. & K. 344. Pawlett v. Attorney-General, Hard. 465, in which Lord Hale and 
 Baron Atkins thought the king was bound by an equity of redemption, was not a 
 case of escheat, as called by Lord Hale, but of forfeiture. 
 
 (w) Viscount Downe v. Morris, 3 Hare, 394. (z) Ibid.
 
 OF THE LEGAL ESTATE IN THE TRUSTEE. 275 
 
 According to the actual state of the decisions, the 3 & 4 W. 4, c. 
 104, (which subjects a person's real estate to the payment of his simple 
 contract debts,) annexes the quality of assets to the estate itself, and, 
 subject to the right of alienation in the heir or devisee,(^) creates a 
 charge on the estate for the benefit of the creditors. (2) It has been held, 
 therefore, that a debtor's estate is assets even in tne hands of the lord 
 taking by escheat. (a) 
 
 The law relating to the forfeiture and escheat of trust estates, except 
 so far as it illustrates general principles, became, upon the passing of 
 the 4 & 5 Will. 4, c. 23, of little importance. By sect. 2 of that act, it 
 was enacted, that where any person seised of any lands upon any trust, 
 or by way of mortgage, died loithout an heir, it should be lawful for the 
 Court of Chancery (on application as directed by the act] to appoint a 
 person to convey. And by the following section it was declared, that 
 <' no land, chattels, or stock, vested in any person upon any trust or by 
 way of mortgage, or any profits *thereof, should escheat or be r^.^op-i 
 forfeited to his majesty, his heirs or successors, or to any corpora- L *" J 
 tion, lord of a manor, or other person, by reason of the attainder or con- 
 viction for any ofi"ence of such trustee or mortgagee, but should remain 
 in such trustee or mortgagee, or survive to his co-trustee, or descend to 
 or vest in his representative, as if no such attainder or conviction had 
 taken place." And by the last section it was provided, that "where 
 before the passing of the act any person possessed of land, chattels, or 
 stock, as trustee thereof, should have died without an heir, or should 
 have been convicted of any off'ence, whereby the said land, chattels, or 
 stock, had escheated or been forfeited, the said land, chattels, or stock 
 should be subject to the order of the Court of Chancery for the use of 
 the party beneficially interested therein, the proviso not to affect any 
 grant made subsequently to the escheat or forfeiture, and not to operate 
 where more than twenty years have occurred since the escheat or for- 
 feiture." 
 
 This act was repealed by 13 & 14 Vict. c. 60, whereby it was enacted 
 by the 15th sect, that « when any person seised of any lands upon any 
 trust, should have died intestate as to such lands without an heir, or it 
 should not be known who was his heir or devisee, it should be lawful 
 for the Court of Chancery to make an order vesting such lands in such 
 person or persons, in such manner and for such estate as the court should 
 direct;" and by the 19th sect, it was enacted that, "when a mortgagee 
 should have died without having entered into possession, and the mort- 
 gage money should have been paid to a person entitled to receive the 
 same, or such person should consent to the order, it should be lawful for 
 the Court of Chancery to make an order vesting such lands in such 
 person or persons, in such manner and for such estate as the court 
 
 {y) Spackman v. Timbrell, 8 Sim. 253; Richardson v. Horton, 7 Beav. 112' 
 Pimm V. Insall, 7 Hare, 193, 1 Mac. & Gor. 449. 
 
 (z) Evans v. Brown, 5 Beav. 116. N. B. This case was appealed and com- 
 promised. Hamer's Devisees, 2 De Gex, M. & G. 30G; Beale v. Symonds, 16 Beav. 
 406; Kinderley v. Jervis, 2 Jur. N. S. 602. 
 
 (a) Evans v. Brown, 5 Beav. 116; and see Viscount Downe v. Morris, 3 Hare, 
 394.
 
 27G LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 should direct, in any case where the mortgagee had died intestate as to 
 such lands, and without an heir, or should have died and it should not 
 be known who was his heir or devisee ;" and by the 46th sect, it was 
 enacted that, " no lands, or stock, chose in action, vested in any person 
 upon any trust, or by way of mortgage, or any profits thereof, should 
 escheat or be forfeited to the crown, or to any corporation, lord of the 
 manor or *any other person by reason of the attainder or convic- 
 [*287] ^j^^ ^^^ ^jjy offence of such trustee or mortgagee." Thus of 
 trust property in future there will be no forfeiture by the attainder or 
 conviction of the trustee, and no escheat Uj his attainder; and in case of 
 escheat for failure of heirs the court will have authority, upon summary 
 application, to transfer the legal estate. 
 
 If a trustee be outlaxved, and the outlawry be for treason or felony, it 
 amounts to conviction,(6) and escheat and forfeiture of lands, and chattels, 
 thou"-h held upon trust, would, until the above acts, have ensued, but is 
 now expressly saved by it. If the outlawry be on an indictment for a 
 misdemeanor or in a personal action, it is not a conviction, but merely 
 a contempt of court,(c) and punishable with forfeiture of the profits of 
 the outlaw's lands, and of his chattels, real and personal, absolutely. 
 In this case, therefore, the statute not applying, the forfeiture remains 
 the same as at common law. 
 
 If the trustee become hanhriipt, and do not surrender himself, &c., 
 he is guilty of felony, (c7) and the consequence is, that his lands and 
 goods escheat and are forfeited as in felony generally. But he must 
 first be convicted of the offence by a proper court, either in fact by 
 verdict or in law by outlawry, and then the .above statute saves the for- 
 feiture as regards trust estates. 
 
 A disseisor is not an assign of the trustee either in the ^^f'' or the post, 
 but holds by a wrongful title of his own, and adversely to the trust. The 
 first resolution in Sir Moyle Finch's case, was, that <'a disseisor was 
 subject to no trust, nor any subpoena was maintainable against him, not 
 only because he was in the 2^osf, but because the right of inheritance or 
 freehold was determinable at the common law, and not in chancery, 
 neither had the cestui que use (while he had his being) any remedy in 
 that case. "(e) And we may add the authority of Lord St. Leonards, 
 who, in his edition of Gilbert on Uses, observes, <'At this day every one 
 r*QQo-i is bound by a trust who obtains the *estate without a valuable 
 L "^ J consideration, or even for a valuable consideration if with notice, 
 unless perhaps the lord by escheat. But persons claiming the legal 
 estate by an actual disseisin, without collusion with the trustee, will not 
 be bound by the trust. Therefore, if I oust A., who is a trustee for B., 
 and a claim is not made in due time, A. will be barred, and his cestui 
 que trust with him, although I had notice of the trust ;"(/)(l) and the 
 
 (b) Co. Lit. 390 b. ; Holloway's case, 3 Mod. 42 ; King v. Ayloff, ib. Y2. 
 
 (c) Rex V. Tippin, Salk. 494. (d) 12 & 13 V. c. 106, s. 251. 
 (e) Sir Moyle Finch's case, 4 Inst. 85. (/) Gilb. on Uses, Sugd. ed. 429. 
 
 (1) And an outstanding term in a trustee will attend the inheritance gained by 
 the disseisin. Reynolds v. Jones, 2 Sim. & Stu. 206: and see Turner v. Buck, 22 
 Yin. Ab. 21 : Doe v. Price, 16 M. & W. 603.
 
 GENERAL PROPERTIES OF OFFICE OF TRUSTEE. 277 
 
 same may be inferred from the terms of the section of the late Limitation 
 Act relating to express trusts. (^) 
 
 *CHAPTER XII. [*289] 
 
 GENERAL PROPERTIES OF THE OFFICE OF TRUSTEE. 
 
 From the estate of the trustee we pass to the consideration of his 
 offi.ce, and upon this subject we may, in the first place, investigate the 
 general properties annexed to the ofiice, as, First. A trustee having once 
 accepted cannot afterwards renounce it. Secondly. He cannot delegate 
 it. Thirdly. In the case of co-trustees the ofiice must be exercised by 
 all the trustees jointly. Fourthly. On the death of one trustee the trust 
 will pass to the survivors or survivor. Fifthly. One trustee shall not be 
 liable for the acts of his co-trustee. Sixthly. A trustee shall derive no 
 personal benefit from the trusteeship. 
 
 I. It is a rule, without any exception, that a person who has once 
 undertaken the office, either by actual or constructive acceptance, cannot 
 discharge himself from liability by a subsequent renunciation. The 
 only mode by which he can obtain a release is either under the sanction 
 of a court of equity, or by virtue of a special power in the instrument 
 creating the trust, or with the consent of all the parties interested in the 
 estate. (a) 
 
 Thus, where A. was named executor, and acted in behalf of some par- 
 ticular legatees, but disclaimed the intention of interfering generally, 
 and then renounced, and B. obtained letters of administration cum tcsta- 
 mento annexo, and possessed himself of assets, and died insolvent, it was 
 held thaf A. having acted, could not afterwards discharge himself, and 
 was responsible for the devastavit committed by B.(6) 
 
 *So, in another case, where A., having possessed himself of r^^o(\C)-\ 
 assets, renounced the administration, and the same day B. proved L " J 
 the will, and A. handed over part of the assets to him, and afterwards 
 A., having received other assets by authority from B., handed them 
 over in like manner. Sir Thomas Clarke delivered his opinion, that, as 
 A. had adnjinistered, though without having proved the will, the attempt 
 at renunciation was void, and he ought to be charged with all the subse- 
 quent receipts. (c^ 
 
 Though a trustee may have given a bond for the due execution of the 
 trust, and the cestui que trust may have recovered upon the bond, and 
 been paid the money, yet if the cestui que trust afterwards bring his bill 
 to compel a conveyance, the trustee cannot divest himself of his fiduciary 
 character by pleading that the penalty of the bond was a stated damage 
 
 {g) 3 & 4 W. 4, c. 27, s. 25, compare subsequent observations at p. 722. 
 (a) See Doyle v. Blake, 2 Sch. & Lef. 245 ; Chalmer v. Bradlej, 1 J. & W. 68. 
 (6) Doyle v. Blake, 2 Sch. & Lef. 231; see Lowry v. Fulton, 9 Sim. 123. 
 (c) Read v. Truelove, Amb. 41*7.
 
 278 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 for the breach of trust, and that on payment of the penalty the trustee 
 was to be released. A conveyance, however, will not be decreed with- 
 out an allowance to the trustee of the penalty recovered upon the bond, 
 with interest at the usual rate.((Z) 
 
 II. The office of trustee, being one of personal confidence, cannot be 
 delegated. " Trustees," said Lord Langdale, " who take on themselves 
 the management of property for the benefit of others, have no right to 
 shift their duty on other persons ; and if they do so they remain subject 
 to responsibility towards their cestuis que trust for whom they have under- 
 taken the duty.'Ye) If a trustee, therefore, confide the application of 
 the trust fund to the care of another, whether a stranger,(/) or his own 
 attorney,(^) or even co-trustee or co-executor, (A) *he will be per- 
 L J sonally responsible for any loss that may result. 
 
 The case of Balchen v. Scott,(i) though the ultimate result arrived at 
 is opposed to later decisions, the executor having in fact proved, is no 
 exception to this rule ; for there an executor had received a bill of 
 exchange by the post from a debtor to the estate, and transmitted it to 
 his co-executor, and it was held, that by this proceeding the executor 
 had not acted in the trust,(Z;) and therefore was no more answerable for 
 the application of the money by the co-executor, than any stranger would 
 have been under similar circumstances. 
 
 In Churchill v. Hobson,(/) an executor had paid 500?. into the hands 
 of his co-executor, who misapplied it, and it was ruled by the court that 
 he was not bound to make it good ; but the decision is universally con- 
 sidered as having turned upon the circumstance that the co-executor was 
 a banker, and had been trusted by the testator in his lifetime, besides 
 being made his executor at his death. (m) Lord Harcourt, in his judg- 
 ment, observed, " The co-executor having been the cashier with whom 
 the testator in his lifetime chose to intrust his money, the executor 
 ought not to suffer for having trusted him whom the testator himself in 
 his life trusted." 
 
 But trustees cannot be answerable, if they merely follow the testator's 
 directions. Thus a testator recommended his executors to employ A. 
 (who had been in the employment of the testator himself,) as their clerk 
 
 (d) Moorecroft v. Dowding, 2 P. W. 314. 
 
 (e) Turner v. Corney, 5 Beav. 517. 
 
 (/) Adams v. Clifton, 1 Russ. 297 ; Hardwick v. Mynd, 1 Anst. 109 ; case cited 
 by Sir J. Jekyll, Walker v. Symonds, 3 Sw. 79, note (a) ; Char. Corp. v. Sutton, 
 2 Atk. 405; Kilbee v. Sneyd, 2 Moll. 199, per Sir A. Hart; Douglas v. Browne, 
 Mont. 93 ; Ex parte Booth, id. 248; Turner v. Corney, 5 Beav. 515. 
 
 (g) Chambers v. Minchin, 7 Ves. 196, per Lord Eldon; Ex parte Townsend, 1 
 Moll. 139 ; Ghost v. Waller, ^ Beav. 497. 
 
 (h) Langford v. Gascoyne, 11 Ves. 333 ; Harrison v. Graham, 3 Hill's MSS. 239, 
 cited 1 P. W. 241, note (ij), 6th ed. ; Davis v. Spurling, 1 R. & M. 66, per Sir J. 
 Leach ; Kilbee v. Sneyd, 2 MoU. 200, 212, per Sir A. Hart; Lane v. Wroth, and 
 Stanley v. Darington, cited in Anonymous case, Mos. 36 ; Marriott v. Kinnersley, 
 Taml. 470 ; Ex parte Winnall, 3 D. & C. 22 ; Anon. Mos. 35 ; Clough v. Bond, 3 
 M. & Cr. 497, per Lord Cottenham ; Dines v. Scott, T. & R. 361, per Lord Eldon ; 
 Trutch V. Lamprell, 20 Beav. 116; Thompson v. Finch, 22 Beav. 316. 
 
 (i) 2 Ves. jun. 678, (k) See supra, p. 240. 
 
 (l) 1 P. W. 241. ^ ^ ^ ^ 
 
 (to) See Harrison v. Graham, 3 Hill's MSS., cited 1 P. W. 241, note (y), 6th ed. ; 
 Chambers v. Minchin, 7 Ves. 198.
 
 GENERAL PROPERTIES OF OFFICE OF TRUSTEE. 279 
 
 or agent, which they did, and A. misapplied part of the assets. The ces- 
 tuis que trust contended that executors were answerable for the default 
 of their servant. Sir A. Hart said, " That is the rule. It is hard occa- 
 sionally, where the executor has acted with good faith ; but it is esta- 
 blished, *and it is beneficial in general. The rule, however, is r^c^Qcf-, 
 governed by circumstances; andifii testator points out an agent L ■" ""J 
 to be employed by the executor, I think if such employee received a 
 sum of money, and immediately made default, the executor would clear 
 himself by showing that the testator designated the person, and that he 
 could not by the exercise of reasonable diligence recover the money. 
 But the excuse of reasonable diligence is still required. The effect of a 
 recommendation is to discharge executors to the extent of selecting, but 
 still the person recommended is the agent of the executors, and they are 
 bound to use diligence in looking after him : the question then becomes 
 one of wilful default, not concluding the executor by the mere fact of 
 loss arising from such employee : nor does the diligence which is 
 required demand that he should institute a suit against the agent ; but 
 only that he should have been vigilant, and have called upon him to 
 account : he may be able to show some discreet and reasonable ground 
 for not having sued him.'Yo) 
 
 And an executor cannot be answerable for having handed over money 
 which he had no legal right to retain. Thus, a testator appointed A., 
 B., and C. his executors, and empowered A. to sell certain freehold pre- 
 mises, and directed the proceeds of the sale to be applied and disposed 
 of in the same manner as his personal estate. A. employed B. to make 
 the sale, who, having disposed of the property, paid the proceeds to A., 
 by .whom the money was misapplied. It was held that B. was not 
 answerable for this, the money having come to his hands, not in the 
 character of executor, but of agent. (^) 
 
 And trustees and executors may justify their administration of the 
 trust fund by the instrumentality of others, where there exists a moral 
 necessity for it. " There are," said Lord Hardwicke in Ex imrte Bel- 
 chier, " two sorts of necessity : first, legal necessity ; and, secondly, 
 moral necessity. As to the first a distinction prevails. Where two 
 executors join in *giving a discharge for money, and one of r*9nq-i 
 them only receives it, they are both answerable for it; because L "" -i 
 there is no necessity for both to join in the discharge, the receipt of either 
 being sufficient : but if trustees join in giving a discharge, and one only 
 receives, the other is not answerable, because his joining in the dis- 
 charge was necessary. 3Ioral necessity is from the usage of mankind, 
 if the trustee acts as prudently for the trust as he would have done for 
 himself, and according to the usage of business ; as if a trustee appoint 
 rents to be paid to a banker at that time in credit, but who afterwards 
 breaks, the trustee is not answerable : so in the employment of stewards 
 and agents ; for none of these cases are on account of necessity, but 
 
 (o) Kilbee v. Sneyd, 2 Moll. 199, 200 ; and see Doyle v. Blake, 2 Sch. & Lef. 
 239, 245. 
 
 {p) Davis V. Spurling, 1 R. & M. 64; S. C. Taml. 199; and see Crisp v. Spran- 
 ger, Nels. 109; Keane v. Robarts, 4 Mad. 332, see 356, 359.
 
 280 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 because the persons acted in the usual method of business."(5) And 
 Lord Loughborough in very similar terms observed, " If the business 
 was transacted in the ordinary manner, unless there were some circum- 
 stance to create suspicion, surely the allowance is fair."(r) " Necessity," 
 said Lord Cottenhara, "which includes the regular course of business, 
 will exonerate." (s) And Lord Redesdale, in the same spirit observed, 
 " An executor living in London is to pay debts in Suffolk, and remits 
 money to his co-executor to pay those debts : he is considered to do this 
 of necessity : he could not transact business without trusting some person, 
 and it would be impossible for him to discharge his duty, if he is made 
 responsible where he remitted money to a person to whom he would himself 
 have given credit, and would in his own business have remitted money 
 in the same way. It would be the same were one executor in India and 
 another in England, the assets being in India but to be applied in Eng- 
 land : there the co-executor is appointed for the purpose of carrying on 
 such transaction, and the executor is not responsible : for he must remit 
 to somebody, and he cannot be wrong if he remits to the person in whom 
 the testator himself reposed confidence. "(<) 
 
 r*9Qi"l *Again, where A. and B. were assignees of a bankrupt, and 
 L " -I A. signed the dividend cheques upon the bankers in favor 
 of the creditors, and delivered them to B., who undertook to affix 
 his signature, and deliver them to the creditors, ■ and B. accordingly 
 signed the cheques, and placed them in his desk, whence they were 
 stolen, and presented at the bank, and paid ; on an application to the 
 court to make A. answerable. Sir J. Leach said, " It is true that assig- 
 nees are trustees who have only a joint and not a separate authority, and 
 if by the act of one assignee, out of the course of his duty, the trust 
 property is placed within the single power of the other, both are liable. 
 But here it was not to be expected that the assignees were to meet upon 
 the application of every creditor, for the purpose of signing and deliver- 
 ing his dividend cheque. Such a course of proceeding would have been 
 highly inconvenient to the creditors themselves. It is not the practice of 
 bankers to receive the dividend cheques from the assignees, and pay to 
 each creditor upon his application ; the trouble is greater than they are 
 willing to undertake. Of necessity, therefore, some single person is to 
 be selected for the distribution of these cheques, and it is obvious that 
 there is greater security if one of the assignees will undertake the office 
 than if it be entrusted to an agent, because there may be cases in which 
 circumstances of convenience would not require that the joint cheques 
 should be signed by that assignee until the application of the creditor, 
 and the time of delivering the cheques. Upon the whole, I am of opinion 
 that the delivery of these cheques by A. to B. as his co-assignee, was an 
 
 (?) Ex parte Belchier, Amb. 219. 
 
 (r) Bacon v. Bacon, 5 Ves. 335. 
 
 («) Clough V. Bond, 3 M. C. 49t. 
 
 (0 Joy V. Campbell, 1 Sch. & Lef. 341 ; and see Bacon v. Bacon, 5 Ves. 331, and 
 compare Chambers v. Minchin, 7 Ves. 193, and Langford v. Gascoyne, 1 1 Ves. 335 ; 
 and see Davis v. Spurling, 1 R. & M. 66 ; Munch v. Cockerell. 5 M. & Or. 214.
 
 GENERAL PROPERTIES OF OFFICE OF TRUSTEE. 281 
 
 act done in the proper execution of his duty of a trustee, and that he is 
 not responsible for the subsequent loss of these cheques.(?() 
 
 But where the assignees of a bankrupt employed an attorney to recover 
 debts due to the estate, and the attorney received the money, and abscon- 
 ded. Sir A. Hart distinguished the case from Ex parte Belchier, on the 
 ground that there was no necessity for permitting the attorney to receive 
 one shilling of the money recovered further than his costs. <' The 
 assignee," *he observed, ''has two modes of relieving himself p^^^^.--, 
 from the responsibility. He may call a meeting of the creditors L "" ' -1 
 to approve of an agent, or he may petition the chancellor, and have an 
 agent approved of by the master ; otherwise he acts suo periculo, and to 
 this extent, that if the attorney whom he employs to recover debts 
 receives the money one day and becomes insolvent the next, the assignee 
 is liable, although there is hardly a shadow of negligence, much less of 
 fraud." And his lordship said the same point had been decided in an 
 unreported case before LordEldon.(w) Trustees, undoubtedly, must not 
 let the money lie in the hands of the attorney, but that they must not 
 suffer it to pass through his hands in the ordinary course of business, in 
 the recovery of a debt by action, was beyond any previous decision ; it 
 is probable that the case before Lord Eldon contained some particular 
 and distinguishing circumstance. 
 
 A trustee or executor is not called upon to take any security from the 
 agent ; for to do that upon every occasion would tend greatly to the hin- 
 drance of business. (i/j) 
 
 Where trust money is to be transmitted to a distance, the trustee may 
 do it most conveniently and securely through the medium of a responsi- 
 ble bank, or he may take bills drawn by a person of undoubted credit, 
 and payable at the place whither the money is to be sent. Thus in 
 Knight V. The Earl of Plymouth, (x) a receiver, in order to bring money 
 to London, took bills which at the time they were obtained there was no 
 ground to suspect, but which, as it afterwards happened, were protested 
 in London, and the money lost. Lord Hardwicke said, " The method 
 the receiver took was highly prudent ; it was well intended, and the only 
 way he could take, unless he had himself carried the money in ifpecie, the 
 hazard of which would have been great; and if a loss had then incurred, 
 in my opinion he would have been, if not answerable, highly blameable." 
 
 *But the money must be paid in to the account of the trust r*9QQ-j 
 estate, and the bills must be taken in favour of the trustee in that L "' J 
 character, and if he neglect these precautions, then, if the bank break, 
 or the bills be dishonoured, the trustee will be held responsible for the 
 loss to the cesiuis que trust. (^t/^ 
 
 The rule applied to executors in a court of law is somewhat different 
 from that established in courts of equity. An executor once become 
 
 (u) Ex parte Griffin, 2 Gl. & J. 114 ; and see Wackerbath v. Powell, Buck. 495; 
 S. C. 2 Gl. & J. 151 ; Kilbee v. Sneyd, 2 Moll. 186. 
 
 (v) Ex parte Townsend, 1 Moll. 139; see Anon, case, 12 Mod. 5G0. 
 
 (w) Ex parte Belchier, Amb. 220, per Lord Hardwicke. 
 
 (x) 1 Dick. 120; S. C. 3 Atk. 480 ; recognized Ex parte Belchier, Amb. 219, and 
 Routh T. Howell, 3 Ves. 566; and see Wren v. Kirton, 11 Ves. 380, 385. 
 
 (?/) See Wren v. Kirton, 11 Ves. 380, 381 : Ma?sey v. Banner, 1 J. & W. 247.
 
 282 LEW IN ON THE LAW OF TKUSTS, ETC. 
 
 responsible by actual receipt of any part of tlie assets, cannot at law found 
 his discliarge in respect thereof as against a creditor, either by a plea of 
 reasonable confidence disappointed, or a loss not occasioned by any 
 neglio-ence or default ; as if an executor transmit a sum to his co-executor 
 under circumstances that in equity would justify the confidence, a court 
 of law would still hold him responsible for any misapplication by the co- 
 executor, and could not allow him to plead ^/cne admin istravit.{z^ 
 
 If the trust be of a discretionary character, not only is the trustee 
 answerable for all the mischievous consequences of the delegation, but 
 the exercise of the discretion by the substitute will be actually void, (a) 
 
 Thus an advowson was vested in twenty-five of the principal inhabi- 
 tants of a parish upon trust to elect and present a proper preacher, and, 
 some of the trustees having deputed proxies to vote at the election, 
 Lord Hardwicke said, " It is true a trustee who has a legal estate in him 
 may make an attorney to do legal acts ; but here is a personal trust, and 
 there is no instance where a trustee is allowed to make a proxy to vote 
 in a personal trust of this kind. The trustees were themselves to judge 
 of the qualifications of the candidates, and could not delegate that judg- 
 ment to others^ but ought to exercise it themselves." And his lordship 
 r*'>Q7T ^^^^7 ^^^^j ^^ *'^6 election *had been conducted in this manner, 
 L "" -I it could not be supported. (i) 
 
 And a discretionary trust can no more be delegated to a co-executor 
 or co-trustee than to a stranger. (c) Thus, where a sum of money was 
 given to three executors upon trust to distribute in charity at their dis- 
 cretion, and the executors assumed each the independent control of one 
 third. Lord Hardwicke said, " I am of opinion the executors could not 
 divide the charity into three parts, and each executor nominate a third 
 absolutely, because the determination of the property of cveri/ object was 
 left by the testator to the direction of all the executors."(fZ) 
 
 Of course, if a trustee convey the estate, the mere transfer of the 
 estate will not have the effect of investing the grantee with the power. (e) 
 And so if a trustee devise the estate, the devisee cannot administer a 
 discretionary trust unless the original settlement contemplate such an 
 event and annex the powers to the estate in the hands of the devisee. (/) 
 
 It must be noticed that the appointment of an attorney or i^roxy is 
 not in all cases a delegation of the trust. When the trustee has resolved 
 in his own mind in what manner to exercise his discretion, he cannot be 
 said to delegate any part of the confidence if he merely execute the deed 
 by attorney, or signify his will by proxy. Thus, in the case before 
 cited,(^) where the trust was to elect and present a proper clerk to a 
 
 (z) Crosse v. Smith, 7 East, 246 ; and see Jones v. Lewis, 2 Ves. 241. 
 
 {a) See Alexander v. Alexander, 2 Ves. 643 ; Bradford v. Belfield, 2 Sim. 264 ; 
 Hitch V. Leworthy, 2 Hare, 200. 
 
 (6) Attorney-General v. Scott, 1 Ves. 413, see 417: Wilson v. Dennison, Amb. 
 82; S. C. VB. P. G. 296. 
 
 (c) Crewe v. Dicken, 4 Ves. 97. [d) Attorney-General v. Gleg, 1 Atk. 356, 
 
 (e) Crewe v. Dicken, 4 Ves. 97, see 100 ; Dovley v. Attorney-General, 2 Eq. Ca. 
 Ab. 194 ; Bradford v. Belfield, 2 Sim. 264 ; Cole v. Wade, 16 Ves. 47, per Sir W. 
 Grant. 
 
 (/) ReBurtt's Trust, 1 Drewry, 319; and see ante, pp. 266,267. 
 
 {g) Attorney-General V. Scott, 1 Ves. 413 : and see Ex parte Rigby, 19 Ves. 463.
 
 GENERAL PROPERTIES OF OFFICE OF TRUSTEE. 283 
 
 benefice, Lord Hardwicke had no doubt tbat, so far as related to the 
 mere act of presentation, the trustees, having themselves fixed upon the 
 object, might have signed the presentation by proxy; a trustee who had 
 a legal estate might make an attorney to do legal acts. 
 
 III. Where the administration of the trust is vested in "^co- r*29g-] 
 trustees, they all form as it were but one collective trustee, and L J 
 therefore must execute the duties of the ofl&ce in their joint capacity, (/i) 
 It is not uncommon to hear one of several trustees called the acting 
 trustee, but the court knows no such distinction ; * all who accept the 
 office are acting trustees. If any one refuse to join, it is not competent 
 for the others to proceed without him, but the administration of the 
 trust must in that case devolve upon the court, (i) 
 
 Thus, a receipt for money must receive the joint authentication of the 
 whole body, and not of the majority merely, or it will not be valid. (^) 
 But where the trustees are numerous it is common in orders of the court 
 to direct the payment of moneys to any two or more of them.(Z) 
 
 Again, if a debtor to the trust become bankrupt, all the trustees must 
 join in the proof,(m) unless under particular circumstances the court 
 make an order for some of the trustees to prove, and even then the court 
 has inserted the direction that the dividends should be made payable to 
 all the trustees. (?i) 
 
 But when there are several trustees, and the trust is of a public 
 character, the act of the majority is held to be the act of the whole 
 number.(o) In Wilkinson v. Malin, Lord Lyndhurst observed, "In 
 this case there were seven trustees ; those seven met for the purpose of 
 electing a schoolmaster; at that meeting five of the trustees concurred in 
 the appointment, two dissented, but did nothing upon that dissent. We 
 are of opinion that, in a case of this description, where all the trustees 
 were assembled for the purpose of making the election, and the majority 
 of them so assembled concurred in the appointment, the act of the 
 majority in that respect is to be considered the act of the whole body. 
 This is a trust of *a public nature, viz. to apply funds for the p2991 
 repair of the church and other objects in which the whole parish L -* J 
 are interested; and we are of opinion that where trustees are appointed 
 for the purpose of performing a trust of such a public and general nature, 
 the act of the majority is the act of the whole. It was said at the bar 
 that the principle only applies to cases where the trustees are appointed 
 under some public authority as under an Act of Parliament, or some 
 public body; but we are of opinion that it is not subject to that limita- 
 tion. The objects of the trust would be defeated if one dissenting trustee 
 could prevent the application of the funds in the manner directed. Con- 
 sidering the nature of the trusts, we are of opinion it was the intention 
 
 (h) See Ex parte Griffin, 2 Gl. & J. 116. 
 
 (i) Doyley V. Sherratt, 2 Eq. Ca. Ab. 742, marginal note to (D). 
 
 h) See infra. (l) See Attorney-General v. Brickdale, 8 Beav. 223. 
 
 (m) Ex parte Smith, 1 Deac. 391, per Sir T. Erskine. 
 
 (7i) Ex parte Smith, 1 Deac. 385. ^ , ou 
 
 (o) Wilkinson v. Malin, 2 Tyr. 544 ; and see Attorney-General v. Shearman, 2 
 Beav. 104 ; Attorney-General v. Cuming, 2 Y. & C. Ch. Ca. 139; Youngerv. Wel- 
 ham, 3 S^y. 180.
 
 284 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 of the founder, and fairly to be collected from the objects he had in 
 view, that the act of the majority should bind the rest.(p) 
 
 Where a numerous body are appointed trustees by the court, as in 
 cases of charity, the court sometimes annexes to the order that a part of 
 them shall form a quorum. 
 
 Where stock is standing in the name of several co-trustees, any one 
 of them may receive the dividends, though all must join in the sale of 
 the corpus ; and where there are co-trustees of lands, any one of them 
 may receive the rents, though all must concur in a conveyance. (§') 
 
 IV. On the death of one trustee the joint office survives. 
 
 It is a well-known maxim that a hare autlwrity committed to several 
 persons is determined by the death of any one; but, if coupled with an 
 interest, it passes to the survivors. (r) Thus, the committees of a lunatic's 
 estate are regarded in the light of mere bailiffs without a spark of interest, 
 and if one of them die, the office is immediately extinguished. (.s) An 
 executorship *or administratorship survives ;(^) for <'if," says 
 L ^^^J Lord Talbot, "a joint estate at law will survive, why shall not a 
 joint administration, when they both have a joint estate in it?"(t<) So 
 a testamentary guardianship vests in the survivors, for, as guardians 
 may bring actions and avow in their own names, may grant leases during 
 the minority of the ward, and demise copyholds even in reversion as 
 lords pro tempore, it is evident they have an interest. («) It follows that 
 as co-trustees have an authority coupled with an interest, their office also 
 must be impressed with the quality of survivorship :(i/j) as if an estate 
 be vested in two trustees upon trust to sell and one of them die, the other 
 may sell;(x) and if an advowson be conveyed to trustees upon trust to 
 present a proper clerk, the survivors or survivor may present.^?/) Other- 
 wise, indeed, the more precaution a person took by increasing the number 
 of the trustees, the greater would be the chance of the abrupt determina- 
 tion of the trust by the death of any one. Even where the trust was to 
 
 {p) Wilkinson v. Malin, 2 Tyr. 572. 
 
 (q) See Townley v. Sherborne, Bridg. 35; Williams v. Nixon, 2 Beav. 472; 
 Gouldsworth v. Knight, 11 M. & W. 337. 
 
 (r) Co. Lit. 113 a, 181 b; Butler v. Bray, Dyer, 189 b; Attorney-General v. 
 Gleg, 1 Atk. 356 ; S. C. Amb. 584 ; Goulds. 2, pi. 4 ; Peyton v. Bury, 2 P. W. 628 ; 
 Mansell v. Vaughan, Wilm. 49 ; Eyre v. Countess of Shaftesbury, 2 P. W. 108, 121, 
 124. 
 
 (s) Ex parte Lyne, Rep. t. Talb. 143. 
 
 \t) Adams v. Buckland, 2 Vern. 514; Hudson v. Hudson, Rep. t. Talb. 127. 
 
 (m) Hudson V. Hudson, Rep. t. Talb. 129. 
 
 [v) Eyre v. Countess of Shaftesbury, 2 P. W. 102. But if joint guardians be 
 appointed by the court, the ofiice, on the death of one, is at an end; Bradshaw v. 
 Bradshaw, 1 Russ. 528; Hall v. Jones, 2 Sim. 41. 
 
 {w) Hudson V. Hudson, Rept. t. Talb. 129, per Lord Talbot; Co. Lit. 113 a; 
 Attorney-General v. Glegg, Amb. 585, per Lord Hardwicke ; Gwilliams v. Rowell, 
 Hard. 204 ; Billingsley v. Mathew, Toth. 168. 
 
 {x) See Co. Lit. 113 a ; Warburton v. Sandys, 14 Sim. 622 ; Watson v. Pearson, 
 2 Exch. Rep. 594. 
 
 (y) See Attorney-General v. Bishop of Litchfield, 5 Ves. 825 ; Attorney-Gene- 
 ral V. Cuming, 2 Y. & C. Ch. Ca. 139. If two trustees employ a solicitor, the 
 surviving trustee may file a bill against the solicitor for an account, without mak- 
 ing the representative of the deceased trustee a party ; Slater v. Wheeler, 9 Sim. 
 
 inc. i- J :
 
 GENERAL PROPERTIES OF OFFICE OF TRUSTEE. 285 
 
 raise the sum of 2000?. out of the testator's estate "by sale or otherwise, 
 at the discretion of his trustees, who should invest the same in the names 
 of the said trustees upon trust," &c., and one of the two trustees died, 
 and the survivor sold ; yice-Chancellor Wood decided that the survivor 
 could make a good title. "1 find," he said, "a clear estate in the 
 vendor, and a clear duty to perform. He has executed his duty, and I 
 am asked to say that he has committed a breach of trust. Can I do 
 that? He has a duty imposed upon him to raise the *money : pgQi-i 
 he has the necessary estate given to him for that purpose. Is it L J 
 to be said that this is a breach of trust because the co-trustee is dead ? 
 If I were to lay down such a rule it would come to this, that wherever 
 an estate was vested in two or more trustees to raise a sum by sale or 
 mortgage, you must come to the court on the death of one of the 
 trustees. "(2) 
 
 The survivorship of the trust will not be defeated because the settle- 
 ment contains a power for restoring the original number of trustees by 
 new appointments ;(a) unless there be something in the instrument that 
 specially manifests such an intention. (6) Even in an act of parliament, 
 which declared in very strong terms that the survivors shouId,(c) and 
 they were tlierely required to appoint new trustees, the court said the 
 proviso was analogous to the common one in settlements, and expressed 
 an opinion (for the decision was upon another point,) that the clause was 
 not imperative, but merely of a directory character. (cZ) 
 
 The case of Attorney-General v. The Bishop of Litchfield,(e) may be 
 cited as touching upon this subject. A testator had devised to eight 
 persons and their heirs the donation and parsonage of a rectory, and 
 "desired their care to present from time to time a learned, iminfid 
 preacher, honest in life and conversation, whereby souls might be gained 
 to Christy" and directed that "the three last survivors should make 
 choice of new trustees to be added to them successively to present." 
 The representative of the last surviving trustee conveyed to one Hodgets 
 and his heirs ; Eliza, the wife of Foley, was the heiress-at-law of Hodgets, 
 and, the advowson *having descended upon her, Foley presented p3Q2-i 
 a clerk. An injunction was applied for to stay the institution, L ^ ""J 
 and Lord Eldon said, " Upon what ground am I to interfere to prevent 
 the bishop from instituting upon a presentation under the legal title ? 
 It is said with great foundation this trust ought to be filled up ; but, if 
 an avoidance happens before the trust is filled up, the trustee executes 
 the duty by presenting a proper person. If there is any objection to the 
 clerk presented by him, as, if he presented for emolument to himself, 
 the court should interfere ; but it would be very inconvenient if I were 
 
 (z) Lane v. Debenham, IT Jur. 1005. 
 
 (a) See Doe v. Godwin, 1 D. & R. 259; Warburton v. Sandys, 14 Sim. 622; 
 compare Townsend v. Wilson, 1 B. & Aid. 608, with Hall v. Dewes, Jac. 193; and 
 see Attorney-General v. Floyer, 2 Vern. '748 ; Jacob v. Lucas, 1 Bcav. 436 ; At- 
 torney-General V. Cuming, 2 Y. & C. Ch. Ca. 139. 
 
 (6) Foley v. Wontner, 2 Jac. & Walk. 245 ; and see Jacob v. Lucas, 1 Beav. 436. 
 
 (c) As to the force of the words " shall and may" in the Act of Parliament, see 
 Attorney-General v. Lock, 3 Atk. 166 ; Stamper v. Millar, id. 212 ; Rex v. Flock- 
 wood, 2 Chit. Rep. 252. 
 
 [d) Doe V. Godwin, 1 D. & R. 259. (f) 5 Ves. 825. 
 
 February, 1858.— 19
 
 og(5 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 to hold that there can be no presentation till the number is filled up, 
 when by negligence it has happened that the number is not filled up. 
 If three trustees remained, I could not prevent their choice of new trus- 
 tees to be added to them to present. The filling up the trustees might 
 take a considerable time, and a lapse might incur ; but I agree this is 
 not a proper act of Mr. Foley, when the trust is reduced to his wife." 
 
 V. One trustee shall not be li able for the acts or defaults of Ms co- 
 truHtee, whether a proviso to that effect be inserted in the original settle- 
 ment or not.(/) This point appears to have been first clearly established 
 bv the decision of Townley v. Sherborne(5') in the reign of Charles the 
 First, and is ushered in by the reporter with no little solemnity. 
 
 A., B., C, and D. were trustees of some leasehold premises. A. and 
 B. collected the rents during the first year and a half, and signed acquit- 
 tances; but from that period the rents were uniformly received by an 
 assign of C. The liability of A. and B. during the first year and a half 
 was undisputed, but the question was raised whether they were not also 
 chargeable with the rents which had accrued subsequently, but had never 
 come to their hands ? '< The Lord Keeper Coventry (says the reporter) 
 considered the case to be of great consequence, and thought not to deter- 
 r=Ho-»o-i iQine the same suddenly, but to advise *thereof, and desired the 
 I- ^ "^J lords the judges assistant to take the same into their serious 
 (;onsideration, whereby some course might be settled that parties trustees 
 might not be too much punished, lest it should dishearten men to take 
 any trust, which would be inconvenient on the one side, nor that too 
 much liberty should be given to parties trustees, lest they should be em- 
 boldened to break the trust imposed on them, and so be as much preju- 
 dicial on the other side. And the lord keeper and the lords the judges 
 assistant afterwards conferring together, and upon mature deliberation 
 conceiving the case to be of great importance, his lordship was pleased 
 to call unto him also Mr. Justice Crook, Mr. Justice Barcley, and Mr. 
 Justice Crawley, for their assistance also in the same, and appointed pre- 
 cedents to he looked over as well in the Court of Chancery as in other 
 courts, if any could be found touching the point in question; whereupon 
 several precedents were produced before them, some in the Court of 
 (Jhancery and some in the Court of Wards, where parties trustees were 
 chargeable only according to their several and respective receipts, and 
 not one to answer for the other, but no precedent to the contrary was pro- 
 duced to them. Whereupon his lordship, after long and mature delibera- 
 tion on the case, and serious advice with all the said Judges, did this day 
 in open court declare the resolution of his lordship and the said judges 
 — That where lands or leases were conveyed to two or more upon trust, 
 and one of them receives all or the most part of the profits, and after 
 dyeth or decayeth in his estate, his co-trustee shall not be charged or be 
 compelled in the Court of Chancery to answer for the receipts of him so 
 dying or decayed, unless some practice, fraud, or evil dealing appear to 
 have been in them to prejudice the trust; for, they being by laio joint 
 tenants or tenants in common, every one by law may receive either all or 
 
 if) Leigh V. Barry, 3 Atk. 584, per Lord Hardwicke ; Anon, case, 12 Mod. 560. 
 (^)Bridg. 35.
 
 GENERAL PROPERTIES OF OFFICE OF TRUSTEE. 287 
 
 as much of the profits as he can come hrj. And it being the case of most men 
 in these days that their personal estates do not suffice to pay their debts, 
 prefer their children, and perform their wills, they are enforced to trust 
 their friends with some part of their real estate to make up the same, either 
 by the sale or the perception of the profits thereof; and if such of their 
 friends who carry themselves without fraud should be *charge- i-*r>n n 
 able out of their own estate for the faults and deficiencies of their L ^ J 
 co-trustees who were not nominated by them, few men would undertake 
 any such ti'ust. And if two executors be, and one of them wastes all or 
 any part of the estate, the devastavit shall by law charge him only, and 
 not the co-executor. And in that case cequitas sequitur legem, there 
 being many precedents resolved in chancery, that one executor shall not 
 answer nor be chargeable for the act or deftmlt of his companion. And 
 it is no breach of trust to permit one of the trustees to receive all or the 
 most part of the profits, it falling out many times that some of the trus- 
 tees live far from the lands and are put in trust out of other respects than 
 to be troubled with the receipt of the profits. And albeit, in all pre- 
 sumption, this case had often happened, yet no precedent had been pro- 
 duced to his lordship or the judges, that in any such case the co-trustee 
 had been charged for the act or default of his companion ; and therefore 
 it was to be presumed that the current and clear opinion had gone that 
 he was not to be charged, it having not till of late been brought into 
 question in a case that by all likelihood had often happened. But his 
 lordship and the said judges did resolve, that if upon the proofs or cir- 
 cumstances the court should be satisfied that there had been any dolus 
 malus, or any evil practice, fraud, or ill intent in him that permitted his 
 companion to receive the whole profits, he should be charged though he 
 received nothing." 
 
 Co-trustees,(/i) however, as was determined in Townley v. Sherborne, 
 vreve forme rli/ considered responsible for money if they joined in signing 
 the receipt for it; but in latter times the rule has been established, that 
 a trustee who joins in a receipt for mere conformity's sake, shall not be 
 answerable for a misapplication by the trustee who receives. (?) Where 
 *the administration of the trust is vested in co-trustees, a receipt r^onc-. 
 for money paid to the account of the trust must be authenticated L ' J 
 by the signature of all the trustees in this their joint capacity; it would 
 
 {h) Townley v. Sherborne, Bridg. 35 ; Spalding t. Sbalmer, 1 Vern. 303 ; Sadler 
 T. Hobbs, 2 B. C. C. 114 ; and sec Bradwell v. Catchpole, cited Walker v. S3-nionds, 
 3 Sw. 78, note (a); but said by Lord Cowper, Fellowes v. Mitchell, 2 Yeru. 516, 
 to be contrary to natural justice. 
 
 (i) Brice v. Stokes, 11 Ves. 324, per Lord Eldon; Harden v. Parsons, 1 Ed. 147, 
 per Lord Northington; Westley v. Clarke, 1 Ed. 359, per eundcm ; Heaton v. Mar- 
 riot, cited Aplyn v. Brewer, Pr. Ch. 173; Ex parte Belchier, Amb. 219, per Lord 
 Hardwicke ; Leigh v. Barry, 3 Atk. 584, per eundem ; Fellows v. Mitchell, 1 P. W. 
 81 ; Gregory v. Gregory, 2 Y. & C. 316, per Baron Alderson ; Sadler v. Hobbs, 2 
 B. C. C. 117, per Lord Thurlow ; Chambers v. Minchin, 7 Yes. 198, per Lord Eldon ; 
 Lord Shipbrook t. Lord Iliuchinbrook, 16 Yes. 479, per eundem; Harrison v. 
 Graham, 3 Hiirs MSS. 239, per Lord Hardwicke, cited 1 P. W. 241, 6th ed. note (ij) ; 
 Carsey v. Barsham, cited Joy v. Campbell, 1 Sch. & Lef. 344, per eundcm ; Anon, 
 case, Mose. 35 ; Ex parte Wackerbath, 2 G. & J. 151 ; Webb v. Ledsam, 1 Kay & 
 Johns. 388, per Y. C. Wood.
 
 288 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 be tyranny, therefore, to punish a trustee for an act which the very nature 
 of his office will not permit him to decline. 
 
 But it lies upon the trustee who joins in the receipt for mere conform- 
 ity, to prove that his co-trustee was the person by whom the money was 
 actually received. In the absence of all evidence, the effect of a joint 
 receipt is to charge each of the trustees in solido ;(^-) as if a mortgage be 
 devised to three trustees, and the mortgagor with his witness meets them 
 to pay it off, and the money is laid on the table, and the mortgagor having 
 obtained a reconveyance and receipt for his money, withdraws, each of the 
 trustees in this case will be answerable for the whole. (^ A joint receipt at 
 law is conchisive evidence that the money came to the hands of both, but in 
 equity, which rejects estoppels and pursues truth, the court will decree 
 according to the justice and verity of the fact.(wt) "Where," said Lord 
 Cowper, " it cannot be distinguished how much was received by one 
 trustee and how much by the other, it is like throwing corn or money 
 into another man's heap, where there is no reason that he who made this 
 difficulty should have the whole ; on the contrary, because it cannot be 
 distinguished he shall have no part."(?i) 
 
 _„ „ Of course a trustee will not be exempt from liability if he 
 L J *sign a receipt where the purposes of the trust do not require the 
 money to be raised ; for there can be no legal necessity for his joining 
 when the money itself ought never to have been called for. Thus in 
 Hanbury v. Kirkland,(o) Kaye, one of three trustees of a marriage settle- 
 ment with a power of varying the securities, applied to his co-trustees to 
 sign a warrant of attorney for sale of the stock, on the ground that he 
 had an opportunity of investing the trust fund upon good landed secu- 
 rity at five per cent, interest. The co-trustees signed the warrant of 
 attorney, and Kaye sold out the stock and misapplied the proceeds. The 
 following year one of the co-trustees wrote to Kaye to inquire if he had 
 procured an eligible mortgage, when Kaye replied, he had failed in 
 obtaining the mortgage he had originally contemplated, but he was in 
 hopes of investing the fund on another security equally desirable. Two 
 years after, Kaye absconded, and the money was lost. It was held the 
 co-trustees were responsible, and principally on the ground that, " it being 
 their duty to inquire what was the security and who was the mortgagor, 
 they had executed the power of attorney without exercising a single act 
 of discretion, relying entirely upon the representation made to them by 
 Kaye." 
 
 And though a trustee joining in a receipt may be safe in merely per- 
 mitting his co-trustee to be the receiver in the first instance, yet he will 
 not be justified in allowing the money to remain in his hands for a longer 
 period than the circumstances of the case may reasonably require. (jo) 
 
 {k) Brice v. Stokes, 11 Yes. 234, per Lord Eldon; Scurfield v. Howes, 3 B. C. 
 C. 95, per Lord Thurlow. 
 
 {I) Westley v. Clarke, 1 Ed. 359, per Lord Henley. 
 
 (to) Harden v. Parsons, 1 Ed. 14*7. per eundem. 
 
 (n) Fellows v. Mitchell, 1 P. W. 83. 
 
 (o) 3 Sim. 265, and see Marriott v. Kinnersley, TamL 470; Broadhurst v. 
 Balguy, 1 Y. & C. Ch. Ca. 16 ; Rowland v. Witherden, 3 Mac. & Gord. 568. 
 
 [p) Bone V. Cook, M'Clel. 168 ; Gregory v. Gregory, 2 Y. & C. 313 ; Lincoln v.
 
 GENERAL PROPERTIES OF OFFICE OF TRUSTEE. 289 
 
 Thus, in Brice v. Stokes,(5) the leading case upon this subject, Moor- 
 ing and Fielder, two trustees with a power of sale, conveyed the estate in 
 1784 to a purchaser, and both signed the receipt, but Fielder alone 
 actually received. In ITO-i Fielder died insolvent without having ac- 
 counted for the money *paid to him, and it was proved in evi- r*3Q-T-| 
 dence that Mooring was cognisant of the niisemployment of the ■- J 
 fund, though he took no active measures for recovering it out of Fielder's 
 hands. Lord Eldon said, " Though a trustee is safe if he does no more than 
 authorise the receipt and retainer of the money so far as the act is within 
 the due execution of the trust, yet if it is proved that a trustee, under a duty 
 to say his co-trustee shall not retain the money beyond the time during 
 which the transaction requires retainer, admits that, with his knowledge, 
 and therefore with his consent, the co-trustee has not laid it out accord- 
 ing to the trust, but has kept it or lent it in opposition to the trust, and 
 the other trustee permits that for ten years together, the question then 
 turns upon this, not whether the receipt of the money was right, but 
 whether the use of it subsequent to that receipt was right, after the 
 knowledge of the trustee that it had got into a course of abuse. As soon 
 as a trustee is fixed with knowledge that his co-trustee is misapplying 
 the money, a duty is imposed upon him to bring it back into the joint 
 custody of those who ought to take better care of it." The conclusion 
 was that Mooring was to be made answerable. 
 
 Walker v. Symonds(r) involved great particularity of circumstances ; 
 but. Lord Eldon having described it as a case of great importance to 
 trustees in general,(s) it may be useful to present it to the reader so far 
 as it bears upon the present subject. 
 
 A sum of money secured by mortgage had been asssigned to Donny- 
 thorne, Griffith, and Symonds, upon certain trusts. On the 12th of 
 January, 1791, the mortgage was paid ofi" and the estate re-conveyed, 
 and a joint receipt signed, and the money, with the approbation of the 
 co-trustees, was put into the hands of Donnythorne. The money was 
 shortly afterwards invested by Donnythorne, with the sanction of his co- 
 trustees, in bills or notes of the East India Company payable at the end 
 of two years. In 1795 the bills were paid off by the company, and the 
 money received by Donnythorne. Intelligence to that effect having been 
 transmitted to the co-trustees, Symonds *the same year wrote to r+gQg-i 
 Donnythorne, requesting him to invest it in the public funds in L -• 
 the joint names of the trustees. Donnythorne begged that the money 
 might remain in his hands, and proposed to secure the repayment of it 
 by a mortgage from himself and his son of their settled estates in Corn- 
 wall, and until the mortgage could be prepared, to secure it by their 
 joint bond. The co-trustees, conceiving the security would be ample, 
 expressed their consent, and the joint bond was accordingly executed. 
 Donnythorne not having sent the mortgage as he promised, Symonds made 
 several applications to him upon the subject, earnestly desiring him 
 
 Wright, 4 Beav. 427. This doctrine appears to have been very little regarv-led in 
 the time of Lord Talbot. See Attorney-General v. Kandall, 21 Vin. Ab. 534. 
 
 (q) 11 Ves. 319. 
 
 (r) 3 Sw. 1. (*) Id. T4.
 
 290 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 either to invest the money in the funds, or to give them landed security. 
 In September, 1796, Donnythorne died insolvent, and without having 
 executed the mortgage. Sir W. Grant observed, " The money in 1791 
 was paid in without any act of the trustees : they were obliged to receive 
 it : so far they were blameless. It came to Donnythorne's hands, and 
 the trustees were not to blame in letting it come to his hands ; but they 
 might have afterwards made themselves responsible by merely not doing 
 what was incumbent on them ; by permitting the money to remain a 
 considerable time in the hands of their co-trustee they might without 
 any positive act on their part, have made themselves liable. That will 
 depend on the degree and extent of their laches in suffering the money 
 to remain in the hands of Donnythorne. The trustees being authorised 
 to put the money out on mortgage, it would be rather hard to say that 
 they were guilty of laches by giving Donnythorne a little time to find a 
 mortgage, taking his bond in the meantime. What passed in the interval 
 between to the death of Donnythorne does not appear. If it were neces- 
 sary to decide the point, an inquiry before the master must be direet- 
 ed.'VA Sir W. Grant dismissed the bill, which was one to set aside (as 
 having been fraudulently obtained) a compromise of the alleged breach 
 of trust, but did so on grounds foreign to the subject under discussion; 
 Lord Eldon, however, before whom the cause was brought upon appeal, 
 reversed Sir W. Grant's decree, and directed an inquiry by the master 
 r*^nQi ^^ ^^ *^^ conduct *of the trustees from January, 1791, when the 
 L J mortgage was paid off, to 1796, the time of Donnythorne's death. 
 It then appeared by the master's report made in pursuance of the order, 
 that the money had been invested by Donnythorne, soon after he had 
 received it, in East India bills payahle to himself; that the money due 
 on the bills had been discharged in 1793, and the money paid to Donny- 
 thorne ; that the co-trustees had made no inquiry about the trust fund 
 from January, 1791, till May, 1795, which was the time when Symonds 
 wrote the letter and made the applications already stated. On the hear- 
 ing of the cause upon further directions. Lord Eldon said, " The cause 
 comes back with a report stating a clear breach of trust in leaving the 
 trust fund in the situation represented from 1791 to 1793, and from 
 1793 to 1795. The money was laid out in 1791 with the consent of the 
 trustees on India bills payable to Donnythorne, a palpable breach of 
 trust by placing the fund under his control, secured by little more than 
 a promissory note payable to himself. It was probable that in 1793 Don- 
 nythorne would be paid the money due on the bills, and it would be 
 lodged in his hands ; and although the court will proceed as favourably 
 as it can to trustees who have laid out the money on a security from 
 which they cannot with activity recover it, yet no judge can say they 
 are not guilty of a breach of trust, if they suffer it to lie out on such a 
 security during so long a tirae.(M) The trustees were guilty of a breach 
 of trust in permitting the money to remain on bills payable to Donny- 
 thorne alone, and in leaving the state of the funds unascertained for five 
 years. (i)) I agree with the master of the rolls that inquiry might, on the 
 
 (0 3 Sw. 41. 
 
 (w) 3 Sw. 65. (,,) lb. 67.
 
 GENERAL PROPERTIES OF OFFICE OF TRUSTEE. 291 
 
 principles of tliis court, have discharged the trustees in given circum- 
 stances from a breach of trust. If without previous participation, they, 
 in June, 1795, had found that, being themselves implicated in no breach 
 of trust, they had a co-trustee who had been guilty of a shameful violation 
 of his duty, and immediately exerted themselves to obtain from him a mort- 
 gage, which was their object at that time, and used their utmost eiforts 
 instead of filing a bill in this court, which perhaps might have destroyed 
 his means of giving security, *I should have hesitated long before rHcoiQl 
 I charged then, if inquiry had satisfied me that for a simple con- L J 
 tract debt due to them they had taken a bond and a mortgage instead of 
 instituting a suit, with the rational hope that by means of the bond aud 
 the mortgage they should obtain payment from their co-trustee."(?o) The 
 result of his lordship's judgment was, that, under the circumstances dis- 
 closed by the master's report, the trustees were clearly to be held respon- 
 sible for the loss of the money. 
 
 Co-executors also, like co-trustees, are generally answerable each for 
 his own acts only and not for the acts of any co-executor. (.r) But in 
 respect of receipts, the case of co-exectttors is materially different from 
 that of co-trustees. An executor has, independently of his co-executor, 
 a full and absolute control over the personal assets of the testator. If 
 an executor join with a co-executor in a receipt, he does a wanton and 
 unnecessary act; he interferes when the nature of the ofiice lays upon 
 him no such obligation, and therefore it was a rule very early established, 
 that, if executors joined in receipts, they should be answerable, each in 
 solido, for the amount of the money received. (?/) 
 
 In Westley v. Clarke(^;) Lord Northington expressed an opinion that 
 aimed at breaking down the rule ; and by his decision of that case he 
 succeeded in establishing a qualification of it. 
 
 Thompson, one of three co-executors, had called in a sum of money 
 secured by a mortgage for a term of years, and received *the r*oi i-i 
 amount, and afterwards, but the same day, sent round his clerk L J 
 to his co-executors with a particular request that they would execute thi^ 
 assignment and sign the receipt, which they accordingly did. Thompson 
 afterwards became bankrupt, and the money was lost, and thereupon a 
 bill was filed to charge the co-executors. Lord Northington said, "The 
 rule that executors joining in a receipt are all liable amounts to no more 
 than this, that a joint receipt given by executors is a stronger proof that 
 
 (w) 3 Sw. 71. 
 
 (x) Hargthorpe v. Milforth, Cro. El. 318; Anon. Dyer, 210 a; Wentw. Off. Ex. 
 306, 14 Edn. ; Williams v. Nixon, 2 Beav. 472. 
 
 {y) Aplyn v. Brewer, Pr. Ch. 173; Murrell v. Cox, 2 Vern. 5G0 ; Ex parte 
 Belchier, Amb. 219, per Lord Hardwicke; Leigh v. Barry, 3 Atk. 584, per eunde-u ; 
 Harrison v. Graham, 3 Hill's MSS. 239, per eundem, cited 1 P. W. 241, 6th eu. 
 note {y) ; Darwell v. Darwell, 2 Eq. Ca. Ab. 456; Gregory v. Gregory, 2 Y. & C. 
 316, per Baron Alderson. 
 
 (z) 1 Ed. 357 ; S. C. 1 Dick. 329 ; and see Harden v. Parsons, 1 Ed. 147, 148. 
 Yet in Churchill v. Hobson, 1 P. W. 241, note (1) by Mr. Cox, his lordship is 
 reported to have said, according to a note of the case by Sir L. Kenyon, that in 
 Westley v. Clarke he should have thought the co-executors liable if they hadbfon 
 present at the time the money was paid ; and Lord Redesdale, in Doyle v. Blake. 
 2 Sch. & Lef. 242, 243, seemed to think that Lord Northington had no intention 
 of breaking down, but only of qualifying the rule.
 
 292 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 they actually joined in a receipt, because generally tliey have no occasion 
 to join for conformity. But, if it appears plainly that one executor only 
 received and discharged the estate indebted and assigned the security, 
 and the others joined afterwards without any reason, and without being 
 in a capacity to control the act of their co-executor either before or after 
 that act was done, what grounds has any court in conscience to charge 
 him ? Equity arises out of a modification of acts, where a very minute 
 circumstance may make a case equitable or iniquitous : and though former 
 authorities may and ought to bind the determination of subsequent cases 
 with respect to rights, as in the right of curtesy or dower, yet there can 
 be no rule for the future determination of this court concerning the acts 
 of men. The only act that affected the assets was the first that dis- 
 charged the debt, and, according to the sense of the bar, transferred the 
 le"-al estate of the lands. Then that the co-executors are not to answer 
 for, and the second is nugatory." His lordship was therefore of opinion 
 that the co-executors were not liable for the misapplication by the co- 
 executor. 
 
 The doctrine propounded in this case, that the joint receipt of co- 
 executors is merely a stronger proof of the actual receipt than in the 
 instance of co-trustees, and that an executor as well as a trustee may 
 rebut the presumption by positive evidence, has since been repeatedly 
 contradicted both by dicta and deGisions.(a) The simple point deter- 
 r*oi9-i ™i^^^j "^^2- *^^^ ^° *executor who signs shall not be answerable 
 L "" ""-1 when the act of signature is nugatory, may be considered as now 
 settled. 
 
 Lord Thurlow, indeed, is reported to have questioned the decision iu 
 Westleyv. Clarke :(7>) but Lord Alvanley said, "he must enter his 
 dissent against the rule, that executors joining in a receipt were both 
 liable, for he did not hold that an executor could not m aiii/ case be dis- 
 charged from a receipt given for conformity : he did not find fault, for 
 instance, with the case of Westley v. Clarke."(c) And, again, he said, 
 "he perfectly concurred in the decision of that case; and the joining in 
 a receipt, though not perhaps absolutely necessary, he would not con- 
 sider conclusive.'" {cl) Lord Eldon, in evident allusion to the case of 
 Westley v. Clarke, admitted the old rule had haen pared down, at the 
 same time expressing his opinion that the notion upon which the later 
 cases had proceeded, viz. that the old rule had a tendency to discourage 
 executors from acting, was very ill-founded. A plain general rule, he 
 thought, which once laid down was easily understood and might be 
 generally known, was much more inviting to executors than a rule 
 referring every thing to the particular circumstances. (e) 
 
 (a) Scurfield v. Howes, 3 B. C. C. 90 ; Sadler v. Hobbs, 2 B. C. C. 114; Lang- 
 ford V. Gascoyne, 11 Ves. 333 ; and see Doyle v. Blake, 2 Sch. & Lef. 243 ; Joy v. 
 Campbell, 1 Sch. & Lef. 341 ; Chambers v. Minchin, 7 Ves. 198 ; Brice v. Stokes, 
 11 Ves. 325; Shipbrook v. Hinchinbrook, 16 Ves. 479; Walker v. Symonds, 3 
 Sw. 64; Re Fryer, 3 Jur. N. S. 485 ; decided by Vice-Chancellor Wood; which 
 supports Lord Northington's view. 
 
 (i) Sadler v. Hobbs, 2 B. C. C. 117. (c) Scurfield v. Howes, 3 B. C. C. 94. 
 
 {d) Hovey v. Blakeman, 4 Ves. 608. 
 
 («) See Chambers v. Minchin, 7 Ves. 198; Brice v. Stokes, 11 Ves. 325; Ship- 
 brook V. Hinchinbrook, 16 Ves. 479, Walker v. Symonds, 3 Sw. 64.
 
 GENERAL PROPERTIES OF OFFICE OF TRUSTEE. 293 
 
 The present doctrine of the court was thus enunciated by Lord 
 Eldon: — ''Though one executor has joined in a receipt, yet whether he 
 is liable shall depend upon his acting. The former was a simple rule 
 that Johmtg should be considered as acting, but now Joining alone does 
 not impose responsibility/'(/) The same rule was laid down by Lord 
 Kedesdale, and in his usual clear and forcible language. " The dis- 
 tinction," he said, '' with respect to mere signing appears to be this ; 
 that if a receipt be given for the purpose of form, then the signing will 
 not charge the person not receiving; but if it be given under circum- 
 stances purporting that the money, though not actually received by both 
 executors, was under the ^control of both, such receipt shall r^g^g-i 
 charge ; and the true question in all these cases seems to have L J 
 been, whether the money was under the control of both executors : if it 
 was so considered by the person paying the money, then the joining in 
 the receipt by the person who did not actually receive amounted to a 
 direction to pay to his co-executor (for it could have no other meaning,) 
 and he became responsible for the money, just as if he had actually 
 received it.(^g) Thus, where two executors join in a receipt to a debtor, 
 though the receipt of one would have been a discharge to the debtor, 
 yet, they joining in the discharge, the debtor is taken to have paid them 
 to them both. His requiring the discharge of the executor who has not 
 received the money amounts to saying, " I make this payment to you 
 both, and not to him only who actually receives the money."(/i) 
 
 In Churchill v. Hobson,(i) Lord Harcourt took a distinction between 
 creditors and legatees ;(/c) that in the case of creditors, who were 
 entitled to the utmost benefit of the law, the joining of the executors in 
 the receipt might make each liable for the whole ; but when legatees 
 were concerned, who had no remedy for their demand except in equity, 
 it was altogether unequitable, that one executor should answer for the 
 receipt of the other. But this refinement of Lord Harcourt has by sub- 
 sequent authorities been clearly overruled. (7) The comment of Lord 
 Northington, though it may not express faithfully the distinction intended 
 by Lord Harcourt, is too ingenious not to be here mentioned. " At 
 law," he said, " a joint receipt is conclusive evidence that the money 
 came to them both, and is not to be contradicted ; but a court of equity, 
 which rejects estoppels and pursues truth, will decree according to the 
 justice and verity of the fact ; and what is said by Lord Harcourt as to 
 the distinction between a receipt of this kind as to a legatee and a 
 creditor seems to have this meaning — that a creditor may at law charge 
 both executors on a joint receipt, but *that in a court of equity, r^gj^^-i 
 where alone legacies are received, such receipt should not be L 
 conclusive, but the court will see who actually received, and charge 
 that person accordingly." (?)i) 
 
 (/) Walker v. Symonds, 3 Sw. 64. 
 (ff) Joy V. Campbell, 1 Sch. & Lef. 341. 
 
 (h) Doyle v. Blake, 2 Sch. & Lef. 242. (0 1 ?• ^- 241. 
 
 (k) See Gibbs v. Herrin?, Pr. Ch. 49. 
 
 (/) See Sadler v. Hobbs, 2 B. C. C. 117 ; and see Doyle v. Blake, 2 Sch. & Lef. 
 239. 
 
 (m) Harden v. Parsons, 1 Ed. 147.
 
 294 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 Lord Redesdale has rightly observed, that '<■ there may be a case, 
 where executors would be charged as against creditors, though not as 
 against legatees, for legatees are bound by the terms of the will, creditors 
 are not; and therefore, if the testator direct the executors to collect the 
 assets, and pay the proceeds into the hands of A., which is done accord- 
 ingly, and A. fails, if a creditor remain unpaid, he may charge the 
 executors; but, as regards a legatee, the executors may justify them- 
 selves by the directions of the will."(«) 
 
 On the same principle that an executor is liable for joining in a 
 receipt he is responsible for any act by which he reduces any part of the 
 testator's property into the possession of his co-executor,(o) as if an 
 executor join in drawing,(p) or indorsing,(2') a bill, or invest a sum in 
 the joint names of himself and his co-executors, so that on his own death 
 the entire control of the fund devolves on the co-executor.(r) So it is 
 laid down in an old case, that " if by agreement between the executors 
 one be to receive and intermeddle with such a part of the estate, and 
 the other with such a part, each of them will be chargeaMe for the whole, 
 because the receipts of each are pursuant to the agreement made betwixt 
 both."(s) So an executor is answerable, if he give a power of attorney, 
 or other authority, to his co-executor to collect the assets. ((") 
 
 But under particular circumstances the joining of an executor is as 
 absolutely necessary as the joining of a trustee, and of course in such 
 cases executors and trustees are put upon the same footing in respect of 
 liability. 
 
 r*m W\ *'^^i^^j ^^ ^ bi^^ 0^ exchange be remitted two agents payable 
 L -J to them personally, who on the death of their principal are made 
 his executors, the mere indorsement of one, after they are executors, in 
 order to enable the other to receive the money, will not operate to charge 
 him who does not actually receive, (w) 
 
 And so where the joining of both executors is necessary to the trans- 
 fer of stock.(;;) 
 
 But even where the joining of an executor is absolutely indispensable, 
 it is still incumbent on the executor to see that the act in which he joins 
 is perfectly consistent with the due execution of the trust. (%') 
 
 And the executor will not be excused if he rely on the mere repre- 
 
 (n) Doyle v. Blake, 2 Sch. & Lef. 239, 245. 
 
 (o) Townsend v. Barber, 1 Dick. 356; Moses v. Levi, 3 Y. & C. 359. 
 
 \p) Sadler v. Hobbs, 2 B. C. C. 114. 
 
 [q) Hovej v. Blakeman, 4 Ves. 608, per Lord Alvanley. 
 
 (r) Clough V. Dixon, 8 Sim. 594; 3 M. & C. 490. 
 
 (s) Gill V. Attorney-General, Hard. 314 ; see Moses v. Levi, 3 Y. & C. 359. 
 
 [i) Doyle V. Blake, 2 Sch. & Lef. 231 ; Lees v. Sanderson, 4 Sim. 28 ; Kilbee v. 
 Sneyd, 2 Moll. 200, per Sir A. Hart ; see Moses v. Levi, 3 Y. & C. 359. 
 
 {u) Hovey v. Blakeman, 4 Ves. 608, per Lord Alvanley. 
 
 {v) Chambers v. Minchin, T Ves. 197, per Lord Eldon ; Shipbrook v. Hinchin- 
 brook, 11 Ves. 254; S. C. 16 Ves. 479, per eunckm. ; see Murrell v. Cox, 2 Vern. 
 570, and compare Scurfield v. Howes, 3 B. C. C. 94; (note, the doctrine at the 
 period of the last case had not been settled ;) and see Moses v. Levi, 3 Y. & 
 C. 359. ^ 
 
 (w) Chambers v. Minchin, 7 Ves. 186; Shipbrook v. Hinchinbrook, 11 Ves. 
 252 ; Underwood v. Stevens, 1 Mer. 712 ; Bick v. Motley, 2 M. & K. 312 ; Williams 
 v. JSixon, 2 Beav. 472 ; Hewett v. Foster, 6 Beav. 259.
 
 GENERAL PROPERTIES OF OFFICE OF TRUSTEE. 295 
 
 sentation of his co-executor as to the necessity or propriety of the act, 
 for the executor has imposed upon him at least ordinary and reasonable 
 diligence to inquire whether the representation is true.(a;) 
 
 And if, at a period when in the ordinary course of administration 
 the debts should long sinee have been discharged, an executor is applied 
 to by his co-executor to join in a transfer of stock for the purpose of 
 payment of debts, and the executor does inquire, and ascertains there 
 are such debts, but afterwards it turns out that the co-executor had in 
 his hands a fund sufficient for the payment of the debts, in such a case 
 the executor who joins in the receipt is liable to the imputation of neg- 
 ligence for not having acquainted himself how the co-executor had dealt 
 with the assets during the preceding period, and is liable for the appli- 
 cation of the money he enables the co-executor to receive. (y) 
 
 *And the executor will be answerable if he leave the money, ^^^.-1^-. 
 as for two years, in the hands of the co-executor, when by the L -^ 
 terms of the trust it ought to have been invested on proper securities. (2) 
 But, of course, an executor will not be called upon to replace so much 
 of the fund as it can be proved the co-executor bona Jide expended 
 toward the purposes of the trust. (a) 
 
 A notion was very commonly entertained, until recent decisions, that 
 if an executor merely proved the will and remained passive, he incurred 
 no liability for a devastavit by the co-executors ; but the contrary has 
 now been established. Thus, in Styles v. Guy,(6) a testator appointed 
 three executors, all of whom proved the will ; but one of them, viz., 
 Guy, was the acting executor. Guy, at the death of the testator, had 
 large assets in his hands, with which he eventually absconded. The 
 two co-executors were held responsible for the loss ; and though free 
 from blame morally, had to pay upwards of 20,000/. out of their own 
 pockets. They knew, or ought to have known, that Guy was a debtor 
 to the estate ; and having by probate accepted the executorship, it was 
 their duty to have recovered the debt from Guy as from any other debtor 
 to the estate, and this they neglected to do for a period of six years. 
 
 The rules respecting co-executors are equally applicable to co-admin- 
 istrators. Lord Hardwicke once expressed an opinion, that joint admin- 
 istrators resembled rather co-trustees, and that any one of them could 
 not exercise the office without the concurrence of the rest ;(c] but it was 
 afterwards determined in the Court of King's Bench, that joint admin- 
 istrators and co-executors stood in this respect precisely on the same 
 footing.^c?) 
 
 (x) Shipbrook V. Hincliinbrook, 11 Ves. 252, see 254; Underwood v. Stevens, 
 
 1 Mer. "712 ; Hewett v. Foster, 6 Beav. 259. 
 
 (ij) Shipbrook v. Hinchinbrook, 11 Ves. 254, per Lord Eldon ; Bick v. Motley, 
 
 2 M. & K. 312. 
 
 (2) Scurfield v. Howes, 3 B. C. C. 91 ; and see Lincoln v. Wright, 4 Beav. 427. 
 
 (a) Shipbrook v. Hinchinbrook, 11 Ves. 252; S. C. 16 Ves. 477; Williams v. 
 Nixon, 2 Beav. 472 ; Kilbee v. Sneyd, 2 Moll. 213, per Sir A. Hart; Underwood 
 v. Stevens, 1 Mer. 712 ; and see Brice v. Stokes, 11 Ves. 328 ; Hewett v. Foster, 6 
 Beav. 259. 
 
 (b) I Mac. & Gor. 422 ; and see Scully v. Delanj-, 2 Ir. Eq. Rep. 165. 
 
 (c) Hudson v. Hudson, 1 Atk. 460. 
 
 (d) Willand v. Fenn, cited Jacomb v. Harwood, 2 Ves. 2G7.
 
 296 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 To return to tlie liabilities of co-trustees, if one trustee be 
 [*317] *gognigant of a breach of trust committed by another, and either 
 industriously conceal it,(e) or do not take active measures for the protec- 
 tion of the cestui' s que trust interest,(/) he will himself become respon- 
 sible for the mischievous consequences of the act. A trustee is called 
 upon, if a breach of trust be threatened, to prevent it by obtaining an 
 injunction, (^) and, if a breach of trust has been already committed, to 
 file a bill for the restoration of the trust fund to its proper condition,(7!,) 
 or, at least, to take such other active measures, as, with a due regard to 
 all the circumstances of the case^ may be considered the most pruden- 
 tial. («) 
 
 An express clause is usually inserted in trust-deeds, that one trustee 
 shall not be answerable for the receipts, acts, or defaults of his co-trus- 
 tee. But the proviso, while it informs the trustee of the general doc- 
 trine of the court, adds nothing to his security against the liabilities of 
 the office. In Wesley v. Clarke(/t) Lord Northington was inclined to 
 attach some importance to the clause. << The testator," he said, ^' might 
 direct the condition of his executors so as not to be questioned by his 
 volunteers. The proviso, therefore, that one executor should not be 
 answerable for the acts of another, though not very frequent in wills, 
 was a good proviso between executors and legatees who took under the 
 will." But equity infuses such a proviso into every trust-deed, (/) and a 
 party can have no better right from the expression of that which, if not 
 expi'essed, had been virtually implied. (?n) It is clear, that, in later 
 cases, the court has considered it an immaterial circumstance whether 
 the instrument creating the trust contained such a proviso or not.(;i) 
 |-^o-io-i *VI. It is a general rule established to keep trustees in the 
 L -J line of their duty, that they shall not derive any personal advan- 
 tage from the administration of the property committed to their charge. (o) 
 It was upon this principle that Lord Eldon once directed an inquiry, 
 whether the liberty of sporting over the trust estate could be let for the 
 benefit of the cestuis que trust, and, if not, he thought the game should 
 belong to the heir ; the trustee might appoint a gamekeeper, if necessary 
 for the preservation of the game, but not to keep up a mere establish- 
 
 (e) Boardman v. Mosman, 1 B. C. C. 68. 
 
 (/) Brice v. Stokes, 11 Yes. 319; and see Walker v. Symonds, 3 Sw. 41; 
 Oliver v. Court, 8 Price, IGG ; In re Chertsey Market, 6 Price, 279 ; Attorney- 
 General V. Holland, 2 Y. k C. 699 ; Booth v. Booth, 1 Beav. 125; Williams v. 
 Nixon, 2 Beav. 472; Blackwood v. Borrowes, 2 Conn. & Laws. 477. 
 
 (ff) See In re Chertsey Market, 6 Price, 279. 
 
 (A) Franco v. Franco, 3 Yes. 75 ; Earl Powlet v. Herbert, 1 Yes. jun. 297. 
 
 (i) See Walker v. Symonds, 3 Sw. 71. (k) 1 Ed. 360. 
 
 (l) See Dawson v. Clarke, 18 Yes. 254. (wi) Worrall v. Harford, 8 Yes. 8, 
 
 (n) Brice v. Stokes, 11 Yes. 319; Bone v. Cook, M'Clel. 168; S. C. 13 Price, 
 332 ; Hanbury v. Kirkland, 3 Sim. 265; Moyle v. Moyle, 2 R. & M. 710 ; Sadler v.' 
 Hobbs, 2 B. C. C. 114; Mucklow v. Fuller, Jac. 198 ; Pride v. Fooks, 2 Beav. 430; 
 Williams v. Nivon, 2 Beav. 472. 
 
 (o) Burgess v. Wheate, 1 Ed. 226, per Lord Mansfield; ib. 251, per Lord Henley; 
 O'Herlihy v. Hedges, 1 Sch. & Lef. 126, per Lord Redesdale ; Ex parte Andrews, 
 2 Ptose, 412, per Sir T. Plumer; Middleton v. Spicer, 1 B. C. C. 205, per Lord 
 Thurlow; Docker v. Somes, 2 M. & K. 664, per Lord Brougham ; Gubbins v. Creed, 
 2 Sch & Lef. 218, per Lord Redesdale; and see Hamilton v. Wright, 9 CI. & Fin. 
 Ill ; Bentley v. Craven, 18 Beav. 75; Sugden v. Crossland, 3 Sm. & Giff. 192.
 
 GENERAL PROPERTIES OF OFFICE OF TRUSTEE. 297 
 
 ment of pleasure. (p) So, if an advowson be devised to trustees upon 
 trust to sell, and, before the sale has been effected, a vacancy occurs, 
 the right of presentation is not to be exercised by the trustee at his own 
 pleasure, but he must adopt the nomination of the testator's heir at 
 law. (5') 
 
 So, if trustees or executors buy in any debt or incumbrance to which 
 the trust estate is liable for a less sum than is actually due thereon, they 
 will not be allowed to take the benefit to themselves, but the other cre- 
 ditors or legatees shall have the advantage of it ; and if there be no such 
 claimants, it shall go to the party who is entitled to the surplus. (r) 
 
 Mortgagees are to some though not to all intents and purposes trustees, 
 and in one case, the authority of which, however, *has been r^3]^9-| 
 doubted, where a mortgagor in fee died, and the mortgagee L J 
 bought in the mortgagor's wife's right of dower it was decreed that the 
 heir of the mortgagor, on bringing his bill to redeem, might take the 
 purchase at the price paid.(s^ 
 
 Again, if trust money be laid out by a trustee in buying and selling 
 land, and a profit be made by the transaction, that shall go, not to the 
 trustee who has so applied the money, but to the cestui que trust whose 
 money has been applied. (^) So where a trustee or executor has used the 
 fund committed to his care in stock speculations, though any loss must 
 fall exclusively upon himself, he must account to the trust estate for 
 every farthing of profit. If he lay out the trust money in any commer- 
 cial adventure, as in buying or fitting out a vessel for a voyage, or put 
 it in the trade of another person from which he is to derive certain stip- 
 ulated gains,(M) or if he employ it himself for the purposes of his own 
 business, in all these cases he must account to the cestui que trust for the 
 profits, (w) 
 
 As the trustee of an estate cannot receive any advantage from it, he 
 cannot be appointed the receiver at a salary ;(io) and even should he offer 
 
 (p) "Webb V. Earl of Shaftesbury, 1 Ves. 480, see 488; and see Hutchinson v. 
 Morritt, 3 Y. & C. 547. ,^ „ ^ 
 
 (q) Hill V. Bishop of London, 1 Atk. 618; In re Shrewsbury School, 1 M. & Lr. 
 647; Martin v. Martin, 12 Sim. 579; Sherrard v. Lord Harborough, Arab. 165; 
 Cooke V. Cholmondeley, 3 Drewry, 1 ; and see Hawkins v. Chappell, 1 Atk. 621; 
 Gubbins V. Creed, 2 Sch. & Lef. 218. 
 
 (r) Robinson v. Pett, 3 P. W. 251, note (A;) Darcy v. Hall, 1 Vern. 49; Ex 
 parte Lacey, 6 Ves. 628, per Lord Eldon; Morrett v. Paske, 2 Atk. 54, per Lord 
 Hardwicke; Anon. 1 Salk. 155 ; Carter v. Home, 1 Eq. Ca. Ab. 7; Dunch v. Kent, 
 
 1 Vern. 260 ; Fosbrooke v. Balguy, 1 M. & K. 226. 
 
 (s) Baldwin v. Banister, cited Robinson v. Pett, 3 P. W. 251, note (A), and see 
 comments thereon ; Dobson v. Land, 8 Hare, 220; and compare Arnold v. Garner, 
 
 2 Phil. 231; Mathison v. Clarke, 3 Drewry, 3. 
 (t) Fosbrooke v. Balguy, 1 M. & K. 226. 
 
 (u) Docker v. Somes, 2 M. & K. 664, per Lord Brougham. ., , n 
 
 (v) S. C. id. 665; Wedderburn v. Wedderburn, 2 Keen, 722; S. C. 4 M. & Or. 
 41; but see S. C. 2 Jur. N. S. 674; Willett v. Blandford, 1 Hare, 253; and^see 
 Portlock V. Gardner, 1 Hare, 603; Cummings v. Cummings, 8 Ir. Eq. Rep. 723; 
 Parker v. Bloxam, 20 Beav. 295 ; Wedderburn v. Wedderburn, reported on the 
 late hearing before the master of the rolls, 22 Beav. 84. It appears from a note 
 by the reporter at page 124, that the decision was appealed from, but that the 
 suit was compromised. 
 
 («•) Sutton V. Jones, 15 Ves. 584 ; Sykes v. Hastings, 11 "\ es. 303 ; — - v. Hol- 
 land, 8 Ves. 72; Anon. 3 Ves. 515; and see Morison v. Morisou, 4 M. & C. 215.
 
 298 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 his services gratuitously, lie would not be appointed except under parti- 
 cular circumstances, for it is the duty of the trustee to superintend the 
 receiver and check the accounts with an adverse eje;(x) but if a person 
 be merely a trustee to preserve contingent remainders, the reasons for 
 excluding him are held not to be applicable.(.y) 
 
 So a trustee or executor who is a factor,(2;) broker,(a) *com- 
 L J mission agent,(5) or auctioneer, (c) can make no profit from the 
 trust estate in the way of his business. 
 
 So a trustee who is a solicitor cannot charge the estate for his profes- 
 sional labours, but will be allowed merely his costs out of pocket,((^) 
 unless there be a special contract to that eflfectj^e) nor can the charge be 
 made by a firm of which the trustee is a partner,(/) even though the 
 business be done by one of the partners who is not a trustee ;(<7) but a 
 country solicitor defending a suit in chancery as executor, through a town 
 agent, will be allowed such proportion of the agent's bill in respect of the 
 defence as such agent is entitled to receive. (A) 
 
 In one case the principle of the rule was held not to apply where sev- 
 eral co-trustees were made defendants to a suit, this being a matter thrust 
 upon them and beyond their own control. One of the trustees, who was 
 a solicitor, was allowed to act for himself and the others, and to receive 
 the full costs, it not appearing that they had been increased through his 
 conduct. (A But this decision is open to comment. If the distinction 
 be made between costs out of court and costs in court, because, as regards 
 the latter, the conduct of the trustee is under the cognisance of the court, 
 and the costs are to be taxed, the rule would equally apply to the case 
 of a single trustee defending himself; yet it is difficult to conceive any 
 other ground for the distinction. (A-) The exception made appears to 
 stand by itself, and is not likely to be extended. Indeed where a single 
 trustee defended himself by his partner, the professional profits were 
 disallowed. 
 
 The foregoing principles affect not only express trustees, but also all such 
 r*R911 ^^ ^^^ clothed with the same character by ^construction of law, 
 L J as if a person purchase an estate with another's monei/, or invest 
 another's projpertf/ in some trade or speculation. (m) So, an attorney, 
 
 (z) Sykes v. Hastings, 11 Ves. 364, per Lord Eldon. 
 
 (y) Sutton V. Jones, 15 Ves. 587, per Lord Eldon. 
 
 (z) Scattergood v. Harrison, Moseley, 128. 
 
 (a) Arnold v. Garner, 2 Phil. 231. (6) Sheriff V. Axe, 4 Russ. 33. 
 
 (c) Mathison v. Clarke, 3 Drewry, 3. 
 
 (d) New V. Jones, Exch. Aug. 9, 1833, 9 Bythew. by Jarm. 338 ; Moore v. Frowd, 
 3 M. & Cr. 46 ; Fraser v. Palmer, 4 Y. & C. 515 ; York v. Brown, 1 CqU. 260j 
 Broughton v. Broughton, 5 De Gex, Mac. & Gor. 160. 
 
 (c) In re Sherwood, 3 Beav. 338. 
 
 (f) Collins V. Carey, 2 Beav. 128 ; Lincoln v. Windsor, 9 Hare, 158. 
 
 h) Christophers v. White, 10 Beav. 523. 
 
 (h) Burge V. Burton, 2 Hare, 373. 
 
 (i) Cradock v. Piper, 1 Mac. & Gor. 664; S. C. 1 HalL & Tw. 617; overruling 
 Bainbrigge v. Blair, 8 Beav. 588. 
 
 {k) See Broughton v. Broughton, 2 Sim. & Gif. 422 ; 5 De Gex, Mac. & Gor, 160. 
 
 (1) Lyon V. Baker, 5 De Gex & Sm. 622. 
 
 (m) Docker v. Somes, 2 M. & K. 665 ; Crawshay v. Collins, 15 Ves. 218 ; S. C. 
 1 J. &W. 267; S. C. 2 Russ. 325. > J ' >
 
 GENERAL PROPERTIES OF OFFICE OF TRUSTEE. 299 
 
 » 
 
 guardian, or other person invested with a fiduciary character, must ac- 
 count for all profits to the client, or infant, or other party whose confi- 
 dence he has abused. r?i) 
 
 However, a trustee may hj possibiUfi/ derive a benefit from the trust 
 estate, not from any positive right in himself, but from the want of right 
 in any other; as if lands be vested in A. and his heirs upon trust for 
 B, and his heirs, and B. die without an heir, the equitable interest in 
 this case can neither escheat to the lord,(o) nor, if the trust was created 
 by conveyance from B. whose seisin or title was ex parte paternd, can 
 the lands, upon failure of heirs in that line, descend to the heir ex parte 
 mate7'na ;[p) but the trustee, no person remaining to sue a subpoena, 
 must as the legal proprietor, himself enter upon the beneficial enjoy- 
 ment. Lord Hale was clearly of this opinion, and compared it to the 
 case of the grantee of a rent charge in fee dying without heirs, when 
 the tenant of the land should hold it discharged of the rent.(j) In Bur- 
 gess V. Wheate, Sir Thomas Clarke said he would give no opmion on the 
 right of the trustee, but at the same time admitted the trustee must hold 
 until a better right appeared. (r) Lord Henley seemed to entertain no 
 doubt upon the subject, and considered Lord Hale's illustration by the 
 extinguishment of a rent as a suflScient answer to the objection of want 
 of title in the trustee,(sj and the point must now be considered as clearly 
 settled, (z') 
 
 But if an estate be held by A. upon trust for B., and B. die without 
 leaving an heir, but having devised the estate to C. and D. upon trust, 
 which fail or do not exhaust the beneficial *interest ; A. cannot r^ooon 
 insist on retaining the estate upon ofi"ering to satisfy the charges, L "'^J 
 if any, but will be bound to convey the estate to C. and D. as the nom- 
 inees in the will, and entitled as against A., the bare trustee, and the 
 court as between those parties will not inquire into the nature of the trust 
 or how far it can be executed. («) 
 
 It seems to follow from the principles laid down in Burgess v. Wheate, 
 that, where a purchaser has paid the consideration money, and then 
 dies without an heir before the execution of the conveyance, the vendor 
 must keep both the estate and the money. (lA 
 
 In the same case, and in reference to the supposed event of a mortga- 
 gor in fee dying and leaving no heir, the questions were asked : first, 
 should the mortgagee hold the estate absolutely ? and, secondly, if the 
 mortgagee demanded his debt of the personal representative, should he 
 take to himself both the land and the debt? "If the mortgagor," ob- 
 served Sir Thomas Clarke, " dies without heir or creditor, I see no in- 
 convenience if the mortgagee do hold the estate absolutely ; and as to 
 
 (n) See Docker v. Somes, 2 M. & K. 665. 
 \o) Burgess \. Wheate, 1 Ed. IT 7. 
 Ip) See id. 186, 216, 256. 
 
 {g) Attorney-General v. Sands, Hard. 496 ; and see Carr, 14. 
 (r) 1 Ed. 212, 213. (s) 1 Ed."253. 
 
 Ijt) Taylor v. Haygarth, 14 Sim. 8 ; Davall v. New River Company, 3 De Gex & 
 Sm. 394 ; Cox v. Parker, 2 Jnr. N. S. 842 ; now reported 22 Bear. 168. 
 (m) Onslow V. Wallis, 1 Mac. & Gor. 506. 
 \v) 1 Ed. 211, per Sir T. Clarke.
 
 300 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 the supposition that the mortgagee may demand his debt too, I think, if 
 the mortgagee took his remedy against the personal representative, the 
 court would compel him to reconvey, not to the loi'd by escheat, but to 
 the personal representative, and would consider the estate reconveyed as 
 coming in lieu of the personalty, and as assets to answer even simple 
 contract creditors. "(w) Lord Mansfield said, " He could not state on any 
 ground established what would be the determination in that case.(x) 
 Lord Henley observed, <' The lord has his tenant and services in the 
 morto'ao-ee, and he has no right to anything more. Perhaps it would not 
 be difficult to answer what would be the justice of the case, but it is not 
 to the business in hand.(^) A recent decision of the present master of 
 the rolls establishes that the mortgagee holds absolutely, subject only to 
 the qualification that the equity of redemption is assets for the payment 
 of the mortgagor's debts. (s) 
 
 *But a failure of inheritable blood may happen not only for 
 L J want of an heir, (as in the case of an illegitimate person dying 
 without issue,) but through the corruption of blood caused by attainder, 
 under the old law for felony^ or now for i->€tit treason or murder ; and 
 in the case of su^ch attainder, the question arises, shall the trustee hold 
 against the person attainted if pardoned, or against his heir where attain- 
 der is followed by execution ? Sir Thomas Clarke said, " The detain- 
 ing the estate against the crown where the cestui que trust dies without 
 leaving a relation is different from detaining it against the cestui que 
 trust himself. The court would go as far as it could, and he thought 
 the trustee would be estopped from settiugup such a claim. "(«) Lord 
 Mansfield said, " He could not resolve the case upon principle, for he 
 could find no clear and rertain rule to go hy."(^h\ But Lord Henley 
 agreed with Sir Thomas Clarke, and asked, " If the king thinks proper 
 to pardon the felon, what hinders him from suing his trustee? — what 
 hinders him from instantly assigning his trust for the benefit of his 
 family ?''(t) If trusts were to follow the analogy of uses, the Jieir of the 
 attainted person could not sue his suhporyia by reason of the corruption 
 of blood ;(c?) but trusts at the present day are administered on much 
 more liberal principles than uses formerly were. 
 
 A question was put by Lord Mansfield in Burgess v. Wheate, but was 
 neither answered at the time, nor received any notice from the bench 
 afterwards, viz. whether the right to the estate might not, in particular 
 cases, result to the author of the trust. (f) As, if A. enfeoff B. and his 
 heirs upon trust for C. and his heirs, and C. die without heirs, why may 
 not the equitable interest result in favour of A. ? Such a case has never 
 occurred, and there is no authority upon the subject; but the claim of 
 A. appears at least to have some plausibility. 
 
 As the trustee in these cases advances not a positive, but merely a 
 
 (w) 1 Ed. 210. (x) Id. 236. 
 
 (y) Id. 256 ; and see Viscount Downe v. Morris, 3 Hare, 394. 
 U) Beale v. Symonds, 16 Beav. 406. 
 
 (a) 1 Ed. 210. (6) Id. 236 ; and see id. 184. 
 
 (c) Id. 255 ; as to the necessity for the pardon containing words of restitution. 
 see Bullock v. Dodds, 2 B. & Aid. 277. 
 
 ((/) Br. Feff. al. Us. 34; Gary, 14. (e) ] Ed. 185.
 
 GENERAL PROPERTIES OF OFFICE OF TRUSTEE. 301 
 
 negative claim, lie lias no ground for coming into a court of equity for 
 the establishment of his right.(/) Thus *where A. devised a |-:^q9_i-i 
 copyhold estate to JB. and his heirs in trust for C. and his heirs, L "• J 
 and C. died without heirs, and then B. died, having entered upon the 
 lands, and applied the rents to the trust, but never having been admitted, 
 and the heir of B. filed a bill against the lord for compelling him to 
 grant him admission, Lord Loughborough said, " The ground for the 
 court's acting between the lord and tenant is, that the lord de jure may 
 call upon the tenant to be admitted if he stands out, for he has a right 
 to the fine and his services ; and the court would not let the parties stand 
 in this situation, that the lord who had his remedy against the tenant 
 should, by refusing to call upon him, prevent him from having evidence 
 of his title under the lord upon the rolls, which are in the lord's keeping. 
 The court acts in this case upon the ground of the tenant's having the 
 beneficial interest in the land, but is there any instance of a bill sustained 
 upon a mere legal title for an accessory to the legal estate ? If the 
 admission be a legal duty, I do not know what I have to do with it. 
 Burgess v. Wheate, supposing it well decided, established, that, if a man 
 had got the legal estate, the court would not take it from him, except 
 for some person who had a claim ; but does it follow that the court will 
 give him the legal estate ?"(i/) 
 
 As courts of law have no cognisance of any but legal rights, it should 
 seem that a mandamus might be issued from the Queen's Bench for 
 compelling the admission even of a bare trustee. (A) 
 
 If the cestui quetrust of chattels, whether real or personal, die without 
 leaving any next of kin, the beneficial interest will not, in this case, 
 remain with the trustee, but like all other hona vacantia will vest in 
 the king by his prerogative. However, this doctrine will only take 
 eff"ect where the cestui que trust dies intestate, {^i'^ or has appointed an 
 executor, who by the language of the will itself is excluded from any 
 beneficial interest ;(A;) for an executor not expressly made a trustee by 
 *the will, was before thelate act,(?) eniiiXQdi prima facie to the sur- r-^j^oQr-i 
 plus for his own benefit, and that statute has now converted him into L ^" -I 
 a trustee for the next of Mn only, and does not seem to have altered the 
 old law, as between him and the crown, in case there be no next of kin. 
 
 AVe may conclude this head with the general proposition, that a trus- 
 tee is, under no circumstances, allowed to set up a title adverse to his 
 cestui que trust. {in) But though he may not claim against his own 
 
 (/) See 1 Ed. 212 ; and see Onslow v. Wallis, 1 Mac. & Gor. 506. 
 
 (g) Williams v. Lord Lonsdale, 3 Ves. 752 ; see 756, 757. 
 
 (A) See King v. Coggan, 6 East, 431 ; S. C. 2 Smith, 417 ; King v. Wilson, 10 
 B. & C. 80. 
 
 (i) Jones v. Goodchild, 3 P. W. 33 ; Rutherford v. Maule, 4 Hagg. 213. 
 
 {k) Middleton v. Spicer, 1 B. C. 0. 201 ; Taylor v. Haygarth, 14 Sim. 8 ; Rus- 
 sell V. Clowes, 2 CoUyer, 648 ; Powell v. Merrett, 1 Sm. & Gif. 381 ; and see Bar- 
 clay V. Russell, 3 Ves. 424 ; Henchman v. Attorney-General, 2 S. & S. 498 ; S. C. 
 3 M. & K. 485 ; Cave v. Roberts, 8 Sim. 214. 
 
 {I) 11 G. 4 & 1 W. 4, c. 40. 
 
 (m) See Attorney-General v. Munro, 2 De Gex & Smale, 163 ; Stone v. Godfrey, 
 5 De Gex, Mac. & Gor. 76; Ex parte Andrews, 2 Rose, 412 ; Kennedy v. Daly, 1 
 Sch. & Lef. 381 ; Shields v. Atkins, 3 Atk. 560 ; Pomfret v. AVindsor, 2 Yes. 476 ; 
 
 February, 1858.— 20
 
 302 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 cestui que trust, yet lie is not bound to deliver over tlie property to his 
 cestui que trust if he cannot safely do so by reason of notice of title in 
 another which is paramount to the trust. (?i) 
 
 r*326] ^CHAPTER XIII. 
 
 THE DUTIES OF TRUSTEES OF CHATTELS PERSONAL. 
 
 We next advance to the duties of trustees, and as trusts of chattels 
 personal are of the most frequent occurrence, we may first advert to 
 trustees of property of this description. We may consider this branch 
 of our subject under five heads : — 1. The reduction of the chattel into 
 the possession of the trustee. 2. The safe custody of it. 3. The proper 
 investment of the trust fund. 4. The liability of trustees to payment of 
 interest in cases of improper detainer : and, 5. The distribution of the 
 trust fund. 
 
 SECTION I. 
 
 OF REDUCTION INTO POSSESSION. 
 
 The first duty of trustees is to place the trust property in a state of 
 security. Thus if the trust fund be an equitable interest of which the 
 legal estate cannot be at present transferred to them, it is their duty to 
 lose no time in giving notice of their own interest to the persons in 
 whom the legal estate is vested ; for otherwise the party who created the 
 trust might incumber the interest he has settled in favor of a purchaser 
 without notice. (a) 
 
 If the trust-fund be a cliose en action, which may be reduced into 
 possession, it is the trustees' duty to be active in getting it in ; and any 
 unnecessary delay in this respect will be at their own personal risk. 
 r*907-i Thus, in CaflFrey v. Darby,(&) a woman, in contemplation of *a 
 L "^ -I second marriage, had assigned a leasehold interest with stock in 
 trade, household goods, &c., to trustees upon trust to raise 800^. to be 
 applied to the purposes in the settlement mentioned, with a proviso that, 
 so long as her intended husband should pay 100/. per annum until the 
 whole 800?. should be discharged, the trustees should allow him to remain 
 in possession of the premises. In the course of the first four years the 
 trustees were paid to the amount of 250/., but by small instalments and 
 at irregular periods, and received nothing afterwards. At the end of 
 eight years the husband became bankrupt, and a great part of the 800/. 
 
 Conry v. Caulfield, 2 B. & B. 272 ; Langley v. Fisher, 9 Beav. 90; Reece v. Trje, 
 1 De Gex& Sm. 279. 
 
 (n) Neale v. Davies, 5 De Gex, M. & G. 258. 
 
 {a\ See Jacob v. Lucas, 1 Beav. 436. 
 
 [h) 6 Yes. 488 ; and see Platel v. Craddock, C. P. Cooper's Cases, 1837-8, 481 ; 
 M'Gacheu v. Dew, 15 Beav. 84 j Wiles v. Gresham, 2 Drewrv, 258; Waring v. 
 Waring, 3 Jr. Ch. Rep. 335.
 
 DUTIES OF TRUSTEES OF CHATTELS PERSONAL. 303 
 
 was lost. Sir W. Grant said, " This was money payable by instalments, 
 not a sum to be paid at once as a mortgage is, and secured, too, partly 
 upon an estate daily diminisbing in value, a sbort lease for twentj^-five 
 years commencing three years before the settlement, and upon stock 
 in trade, &c., a sort of property very uncertain in its nature. From these 
 two considerations, the diminishing value of the property and the mode 
 of payment by instalments, I am of opinion the trustees were not justi- 
 fied in any great indulgence, for it was evident the debtor's inability 
 would be constantly augmenting. If he was unable to pay the first in- 
 stalment, he must be still less able to pay the sums accumulated from 
 permitting them to run together. The cases of payment by instalments 
 and at once are quite difi"erent. In the latter the debtor may be able 
 to pay that sum to-morrow, or next year ; but the chance of receiving 
 money by instalments depends upon its being regularly received. There- 
 fore, even though the trustees might not have been under the necessity 
 of exacting from the husband the money on the precise day, yet they 
 ought not to have given great latitude. They were hardly justifiable 
 in permitting two instalments to become due; still less three; still less 
 four. But here they permit him to remain four years in possession 
 without receiving a shilling. That is evidence he was not prosperous : 
 it did not turn out as well as he expected. It might be supposed that 
 he was running in debt with other people. The trustees might have ex- 
 pected a controversy with the creditors. They ought therefore to liave 
 taken some step for the security of the infant cestuis que trust, particu- 
 larly when that is combined with the other circumstance *that the |-^.-.9n-, 
 property was diminishing in value." And his honour decreed L "^ J 
 the trustees to make good the deficiency. 
 
 Again, a testator had directed the money arising from his rents to be 
 invested by his executors in the 3 per cent, annuities for the purpose of 
 accumulation. Arrears were allowed to run to the amount of 15U0/., 
 and from the tenor of the master's report it was evident, that, by the 
 employment of proper means, the whole of the arrears might have been 
 recovered. The executors produced no evidence in justification of their 
 conduct. Sir Thomas Plumer said, "I am anxious not to discourage 
 persons from acting as executors by throwing difl&culties in their way, 
 and I am willing to make every proper allowance ; but I must not forget 
 the established doctrine of this court. If persons accept the trust of 
 executors, tliey must perform it ; they must use due diligence, and not 
 suffer in/ants to he injured hy their nerjligence. If there he CRASSA 
 NEGLIGENTIA, and a loss sustained hy the estate, it falls upon the cxo.cii- 
 tors. Here, for want of evidence, I cannot say that all this rent could 
 not have been recovered ; and I am reluctantly obliged to assume that 
 no exculpatory evidence could be produced, and therefore they must be 
 charged with these arrears. Interest upon the arrears was but faintly 
 pressed for, and ought not to be given. "(c) 
 
 An executor is not to allow the assets of the testator to remain out- 
 standing upon jjerso?ia? security,((?) though the debt was a loan by the 
 
 (c) Tebbs v. Carpenter, 1 Mad. 290. 
 
 (d) Lowson v. Copeland, 2 B. C. C. 156 ; Caney v. Bond, 6 Bear. 486; Bailey
 
 304 LEWIN ON THE LAW OF TKUSTS, ETC. 
 
 testator himself on wliat lie considered an eligible investment. (e) And 
 it will not justify the executor, if he merely apply for payment through 
 his attorney, but do not follow it up by instituting legal proceedings. (/) 
 Personal security changes from day to day, by reason of the personal 
 responsibility of the party giving the security ; and as a testator's means 
 of judging of the value of that responsibility *are put an end to 
 L J by his death, the executor who omits to get in the money within 
 a reasonalDle time becomes himself the security. (5^) An executor will be 
 equally liable, as has lately been decided, if he knows that a co-executor 
 is a debtor to the testator's estate, and does not take the same active 
 steps for recovery of the amount from the co-executor, as it would have 
 been his duty to take against a stranger. And it does not vary the case 
 that the testator himself was in the habit of leaving money in the hands 
 of that co-executor, and treating him as a private banker. (A) Nor will an 
 executor be excused for not calling in money on personal security by a 
 clause in the will, that the executors are to call in " securities not 
 approved by them ;" for such a direction is construed as referable to 
 securities upon which a testator's property may allowably be invested, 
 and not as authorising an investment which the court will not sanction. (A 
 If, however, it appears, or there is reasonable ground for believing, that 
 had legal steps been taken they would have produced no result, the exe- 
 cutor or trustee is not liable. (A) 
 
 But where a great part of the assets was outstanding on Mexican 
 bonds, and the executors sold in the course of the second year from the 
 testator's decease, it was held by Lord Cottenham, that, if executors 
 were bound at once to convert the assets without considering how far it 
 was for the interest of the persons beneficially entitled, there would of 
 necessity be always an immediate sale, and often at a great sacrifice of 
 property; that executors were entitled to exercise a reasonable discretion 
 according to the circumstances of the particular case. The will bad 
 directed the trustees to convert " with all convenient speed," but this, 
 observed his lordship, was the ordinary duty implied in the office of 
 every executor. TA 
 
 Money outstanding upon good mortgage security an executor is not 
 r:^ooQ-| called upon to realise until it be wanted in the course of '''admin- 
 L ' -I istration.(m) " For what," said Lord Thurlow, " is the execu- 
 tor to do ? Must the money lie dead in his hands, or must he put it out 
 on fresh securities ? On the original securities he had the testator's con- 
 fidence for his sanction, but on any new securities it will be at his own 
 
 V. Gould, 4 Y. & C. 221 ; and see Attorney-General v. Higham, 2 Y. & C. Ch. 
 Ca. 634. ^ ^ ' 
 
 [e] Powell V. Evans, 5 Ves. 839; Bullock v. Wheatley, 1 Coll. 130; and see 
 Tebbs v. Carpenter, 1 Mad. 298 ; Clough v. Bond, 3 M. & Cr. 496. 
 
 (/) Lowson v. Copeland, supra. 
 
 {g) Bailey v. Gould, 4 Y. & C. 226, per Baron Alderson. 
 
 {h) Styles v. Guy, 1 Mac. &: Gor. 422. 
 
 [i] Styles v. Guy, 1 Mac. & Gor. 428 ; and see Scully v. Delany, 2 Ir. Eq. Rep. 1G5. 
 
 [k) Clack V. Holland, 19 Beav. 262 ; Maitland v. Bateman, 16 Sim. 233, note. 
 
 (0 Buxton V. Buxton, 1 M. & C. 80; Hughes v. Empson, 22 Beav. 181. 
 
 {m) Orr v. Newton, 2 Cox, 2T4 ; and see Howe v. Earl of Dartmouth, T Ves. 150.
 
 DUTIES OF TRUSTEES OF CHATTELS PERSOXAL. 305 
 
 peril."(?i) But the trustee is bound to ascertain that there is no reason 
 to suspect the goodness of the security. (o) 
 
 When the property is reduced into possession by actual payment, as 
 both trustees cannot receive, but both must join in signing the receipt, 
 the money may be paid to one without responsibility on the part of the 
 other. But a trustee will not be justified in allowing the co-trustee to 
 retain the money in his hands for a longer period than the particular 
 circumstances of the case may necessarily require. And, indeed, the 
 safer course, where practicable, is, that the money should not be handed 
 to either of the trustees personally, but should, in the first instance, be 
 paid into some bank of credit to their joint account. (p) 
 
 The powers of trustees to sign receipts will be considered more at 
 large hereafter, but we may here observe that if money be payable to A., 
 who is simply a trustee for B., it would clearly be a breach of trust to 
 pay it to the trustee against the wishes of the cestui que trust ;(</) on the 
 other hand, if the nature of the trusts be such that the person having 
 the money in his hands could not reasonably be expected to see to the 
 application, he may pay safely to the trustee. (y) Some recent cases in 
 Ireland have gone further, and taken a distinction between moneys 
 being pure personalty and moneys payable on sales or mortgages. Thus 
 where the owner of a policy assigned it to a trustee for a minor without 
 a power of signing receipts, the master of the rolls expressed an opinion 
 (for a decision was not then called for,) that if the insurance company 
 were released from the debt by the person to whom they were liable at 
 *law, and whom the owner of the policy had constituted the pj^oqin 
 trustee of it, they would not be answerable in equity for the exe- L J 
 cution of the trusts, and he did not understand how the rules applicable 
 to purchasers of real property could be extended to debtors so as to impli- 
 cate them in trusts created by their creditors. (s) And in another caseJi) 
 where the insurer efi'ected a policy in 7001., and then assigned it to a trus- 
 tee to pay 400?. to one, and 300?. to another, without an express power 
 of signing receipts, and a bonus of 33?. was added to the policy, and the 
 insurer being dead without a personal representative, and one of the cestuis 
 qiie trust heiugaho dead without a sufiicieut personal representative, and 
 the other cestui que trust being in America, the company instituted an 
 interpleader suit, — the Lord Chancellor of Ireland laid down the same 
 distinction as the master of the rolls between a personal debt and money 
 arising out of real estate, and held that the trustee could sigu a dis- 
 charge, and that the interpleader suit could not be sustained. In the 
 case of a debt, he said, the person indebted was bound and compellable 
 to pay to some one ; but in the case of realty, the purchaser or mortga- 
 gee was a voluntary intervenient, and could pay or not at his own free 
 will. The decision of the lord chancellor may have been correct, for 
 the circumstance ot one cestui que trust being abroad, and the other dead 
 
 (n) Orr v. Newton, 2 Cox, 276. 
 
 (o) See Ames v. Parkinson, 7 Beav. 384. 
 
 (p) See post, pp. 332, 333. {q) Pritchard v. Langher, 2 Vera. 197. 
 
 M Glynn v. Locke, 3 Dm. & War. 11. 
 
 («) Fernie v. Maguire, 6 Jr. Eq. Rep. 137. 
 
 (t) Ford V. Ryan, 4 Ir. Ch. Rep. 342.
 
 306 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 without a personal representative, as was also the insurer himself, may 
 have justified the company in paying to the trustee, but the principles 
 laid dowu went far beyond any previous authority, and it remains to be 
 seen whether they will be adopted by the English courts. In the mean 
 time the suggested distinction between pure personalty and money raised 
 out of realty cannot be relied upon. 
 
 Where the holder of the money knows that the trustee intends to com- 
 mit a breach of trust, it would not be safe to pay to the trustee, whether he 
 has an express power of signing receipts or not. But, of course, the fact 
 of such knowledge must be brought home to the person paying, so as to 
 make himpar^/ce/JS criminisj a privy to the fraud. (■?*) 
 
 [*332] *SECTION II. 
 
 OF THE SAFE CUSTODY OF THE CHATTEL. 
 
 Lord Northington once observed, "No man can require or with reason 
 expect that a trustee should manage another's property with the same 
 care and discretion that he would his own;(y) but the maxim has never 
 failed, as often as mentioned, to incur strong marks of disapprobation, 
 A trustee is called upon to exert precisely the same care and solicitude 
 in behalf of his cestui que trust as he would do for himself; but greater 
 measure than this a court of equity will not exact.(i<.') 
 
 A trustee, in an old case, had kept 40/. of trust money in his house, 
 and 200?. belonging to himself, and was robbed of both by his servant, 
 and was held not to be responsible. (a-) An administratrix had left goods 
 with her solicitor to be delivered to the party entitled. The articles were 
 stolen, and the court said it was the same as if they had been in the cus- 
 tody of the administratrix, and it was too hard to charge her with the 
 loss.(y) 
 
 An executor has been held not to be answerable for having omitted to 
 insure leasehold premises against fire.(^) 
 
 If the subject of the trust be money, it may safely and most properly 
 be deposited for temporary purposes in some responsible banking-house ;(a) 
 
 {u) See Fernie v. Maguire, G Ir. Eq. Rep. 137. 
 
 [v] Harden v. Parsons, 1 Ed. 148. 
 
 («') Morley v. Morley, 2 Ch. Ca. 2, per Lord Nottingham ; Jones v. Lewis, 2 
 Ves. 241, per Lord Hardwicke ; Massey v. Banner, 1 Jac. & Walk. 24Y, per Lord 
 Eldon; Attorney-General v. Dixie, 13 Ves. 534, jser eundem. 
 
 (x) Morley v. Morley, ubi supra: and see Jones v. Lewis, 2 Yes. 241 ; Ex parte 
 Belchier, Amb. 220 ; Ex parte Griffin, 2 GL & J. 114. 
 
 (y) Jones v. Lewis, 2 Ves. 240. 
 
 [z) Bailey v. Gould, 4 Y. & C. 221 ; and see Ex parte Andrews, 2 Rose, 410; 
 Dobson T. Land, 8 Hare, 216. 
 
 («) Rowth V. Howell, 3 Ves. 565 ; Jones v. Lewis, 2 Ves. 241, per Lord Hard- 
 wicke; Adams v. Claxton, 6 Ves. 226; Ex parte Belchier, Amb. 219, per Lord 
 Hardwicke; Attorney-General v. Randall, 21 Vin. Ab. 534, per Lord Talbot; 
 Massey v. Banner, 1 Jac. & Walk. 248, per Lord Eldon ; Horsley v. Chaloner, 2 
 Ves. 85, per Sir J. Strange; France v. Woods, Taml. 172; Lord Dorchester v. 
 Earl of Effingham, id. 279 ; Freme v. Woods, Taml. 172 ; Johnson v. Newton, 11 
 Hare, IGO; Wilks v. Groom, 3 Drewry, 584.
 
 DUTIES OF TRUSTEES OF CHATTELS PERSONAL. 307 
 
 but the trustee will make himself ^liable for the failure of the r:i;OQQ-i 
 bank, if he pay the money to his own credit and not to the sepa- L "^ ' J 
 rate account of the trust estate, (a) 
 
 Thus a receiver transmitted two bills to a banker to be placed to his 
 account, and in each bill the receiver's own money was mixed up with 
 the trust-fund. The bank failed, and Lord Eldon decreed the receiver 
 to make good the loss. " A receiver," he said, " cannot be allowed to 
 say he is transmitting the money of the estate as such, if he permit it to 
 stand with his own money to his own credit ; for, in that case, if any 
 intermediate failure of the receiver happen, his estate gets the benefit of 
 the remittance, and the trust estate none. Then, on the failure of the 
 bank, I will not permit him to say he shall not suffer the loss, but the 
 trust estate shall suffer it. (Jj) 
 
 And in the more recent case of Massey v. Banner,(c) where A. and B. 
 were trustees for creditors, and C. acted for them in collecting the debtor's 
 estate, and paid the assets into a bank to his own account, and, on the 
 failure of the bank, A. and B. filed a bill against C. to compel him to 
 account for the loss, Lord Eldon said, " C. is liable in the same manner 
 as other persons acting as trustees, executors, receivers, or assignees ; and 
 the principle applying to all these classes of persons is properly expressed 
 in these terms — That the court does not expect them to take more care 
 of the property entrusted to them than they would do of their own. If 
 a receiver of the court undertake to receive rents in the country he can- 
 not send them in cash, and if he collect them in paper, taking the same 
 care with respect to it as a reasonable attention to his own afiairs would 
 dictate to him if it was for himself, if he remits what he has collected by 
 the best bills he can find by the same means that would be reasonable if 
 it were on his own account, then I should say that it would be very dif- 
 ficult to charge him, for he has done the best he could for his employers. 
 But I cannot persuade myself that the principle is satisfied, unless the 
 result is as beneficial to them as it *would be to himself. If an p:i<qq4-| 
 assignee pays money into his banker's hands as money belonging L -I 
 to the estate, and the banker fails, the assignee is undoubtedly clear from 
 the loss ; but if instead of distinguishing it, he pays it all into his own 
 account, then it is his account there ; there is nothing like a declaration 
 of trust of it, and it is familiar to consider him as having it in the 
 banker's hands for himself, making him liable for it, and charging him 
 with interest at the rate (since the late statute) of 201. per cent. This 
 is because, if he had become bankrupt, it would have gone to the credit 
 of his estate ; for it is clear in that case, that, if the bankers had any 
 account with him by way of set-off, that set-oif would aft'ect equally his 
 money and the money of the estate paid in to his account; they have no 
 notice that it belongs to the estate : the account is between him and 
 them. The same has been the case with executors and trustees ; and 
 
 (a) Wren v. Kirton, 11 Ves. 311; Fletcher v. Walker, 3 Mad. 73; Macdonnuell 
 V. Harding, 1 Sim. 1V8 ; Matthews v. Brise, 6 Beav. 239. 
 
 (b) Wren v. Kirton, 11 Vesey, 380. 
 
 (c) 1 Jac. & Walk. 241. See observations of L. J. K. Bruce and L. J. Turner 
 on this case; Pennell v. Deffell, 4 De Gex, Mac. & Gor. 386, 392.
 
 308 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 I apprehend, tliat, for the safety of mankind, the principle must be, that, 
 if you desire to deal for me as you would for yourself, it must be so that 
 the dealino- for me, if unfortunate, shall not be more so to me than it 
 would have been to you, if it had been for yourself. In the case of the 
 assio-nee if he fails, his estate has all the benefit of the money : the par- 
 ties for whom he acts have none: he does not therefore deal for them 
 as he would for himself" His lordship therefore held that C. was re- 
 sponsible. 
 
 And a trustee must not lodge the money in such a manner as to put it 
 out of his own control, though it be not under the control of another. 
 White, a receiver appointed by the court, in order to induce Adams and 
 Burlton to become his sureties, entered into an arrangement with them, 
 that the rents, as received, should be deposited in a bank in the joint 
 names of the sureties, and that all drafts should be in the handicriting 
 of Anderson, who was Adams's partner, and should be signed by White. 
 An account was opened upon this footing : the bank failed; and a con- 
 siderable loss was incurred. Sir J. Leach held that the receiver and his 
 sureties were not to be answerable ;(c7) but his honor's decision was re- 
 versed on *appeal by the lord chancellor ;(e) and this reversal 
 L -I was afterwards affirmed on the final appeal, by the house of 
 lords. (/) On the latter occasion Lord Brougham observed, " It is clearly 
 the duty of a receiver, as an officer of the court, to keep in his own hands 
 the control over the fund. It is admitted, that, if he had parted alto- 
 gether with that control, he would have been answerable, whether the 
 loss actually incurred could be traced to and connected with that sever- 
 ance and that want of power over the fund or not. Does it make any 
 difference, that instead of entlrehj parting with the control, he gave a 
 veto on all his dealings with it to a mere stranger ? Anderson was wholly 
 unknown to the court, which reposed its confidence in its own officer, and 
 looked only to him : the acts of a stranger it had no power over, and 
 could in no respect control. Consider the position of the fund, had a 
 sudden run come upon the bank. "N^Hiite, on hearing it, would be bound, 
 in the discharge of his official duty, instantly to draw the whole balance, 
 and put it in a place of greater safety ; but the arrangement which he 
 had made prevented him from doing this without the concurrence of 
 Anderson, who lived at some distance, and who, even had he lived in 
 the same town, might have been absent, or unable from illness to act, 
 and who, had he been both on the spot and able to write the cheques, 
 might have been unwilling and refused. He might have been disposed 
 to court the favour of his bankers at the risk of the estate ; he might 
 have drawn all his own money out and recompensed the banker by leav- 
 ing that of the receivership, and this without incurring the least risk 
 himself; for he was not surety, nor in any way bound either to the court 
 or the receiver. Let us ask ourselves how any individual would like, 
 during a run upon his banker, to have his hand paralysed by such a veto 
 as was given to Anderson ? What anxiety would he feel during the 
 delay that must elapse in the interval between the run beginning and the 
 
 {d) Sal-svay v. Salway, 4 Russ. 60. ie) 2 R. k M. 215. 
 
 (/) Id. 220. ^ '
 
 DUTIES OF mrSIEES OF CHATTELS PERSONAL. 309 
 
 messenger returning witli tlie cheques filled up for his signature I Is a 
 receiver entitled to place the custody or administration of the fund in a 
 situation which, in the case of any individual dealing with his own estate, 
 would *be the source of such anxiety ? Xo person in his own r-^nn(>n 
 case would make such an engagement without extreme necessity '- -■ 
 or ample equivalent ; and the least that can be required by the court of 
 its ofiicers is that degree of diligence and care which any man would use 
 in the conduct of his own affairs. "(^) 
 
 In a case before Sir A. Hart, in Ireland, an executor was held to be 
 justified, though he had placed the assets in a bank so as to be under 
 the control of the co-executor. The money was entered in the books to 
 the Joint account of the co-executors, but the bank was in the habit of 
 answering the cheques of either co-executor singly. ''It is the custom 
 of bankers," said Lord Chancellor Hart, "that what is deposited by one 
 to the joint account may be withdrawn by the cheque of the other; and 
 for convenience of business, it is necessary this risk should be incurred, 
 for it would be veiy hard to transact business if every cheque should be 
 signed by all the executors. The mode in which the account has been 
 kept, brings it, in effect, I admit, almost to the same thing as paying it 
 directly to the co-executor; but each executor has full dominion and 
 may deal with the general fund as he thinks proper, without making his 
 co-executor chargeable for a devastavit." (Ji^ However, his lordship 
 admitted that " if there were any fraud or collusion, wilful default, or 
 gross neglect, or if the executor had any reason to put a stop to the mis- 
 management by the co-executor, the case would be altered." (?) But 
 even with this qualification the doctrine is so contrary to the principle of 
 other cases that no trustee or executor could be advised to rely upon it 
 in practice. (/r) 
 
 The trustee will also be answerable for the failure of the bank, if he 
 deposited the money there for safe custody when it was his clear duty to 
 have invested it in the funds for improvement,(/) or if when the pur- 
 poses of the trust do not require a balance to be kept in hand he lend a 
 sum to the bank at interest upon no other security than their notes, for 
 *this in effect cannot be distinguished from an oi'dinary loan |-:i..oo— i 
 on personal security, which the court never sanctions. (?«) •- -^ 
 
 The trustee in the custody of the trust property, wherever it may be 
 placed, must always be careful not to amalgamate it with his own, for, 
 if he do, the cestui que trust vfiW be held entitled to every portion of the 
 blended property which the trustee cannot prove to be his own.(«) 
 
 (g) MS. (A) Kilbee v. Sneyd, 2 MoU. 1S6 ; see 200, 213. 
 
 (0 Id. 203, 213. 
 
 (k) See Cloush v. Dixon. 8 Sim. 594; 3 M. & Cr. 490. 
 
 {I) Moyle V. Movie, 2 R. & M. 710 ; Johnston v. Newton, 17 Jur. 826. 
 
 (»?i) Darke v. Martvn, 1 Beav. 525. 
 
 {n) Lupton v. Whi'te, 15 Yes. 432; and Panton v. Panton, cited ib. 440: Ched- 
 ■K-orth V. Edwards, 8 Yes. 46 : White v. Lincoln. S Yes. 363 : Fellowes t. Mitchell, 
 1 P. W. 83 ; Duke of Leeds v. Earl Amherst, 20 Beav. 239.
 
 310 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 SECTION III. 
 
 OF INVESTMENT. 
 
 Where the trust-money cannot be applied, either immediately or by a 
 short day, to the purposes of the trust, it is the duty of the trustee to 
 make the fund productive to the cestui que trust by the investment of it 
 on some proper security. 
 
 It was the opinion of Lord Northington that a trustee might be 
 iustified in lending on personal credit. ^'The true touchstone," he said, 
 " by which such cases are to be tried is, whether the trustee has been 
 guilty of a breach of trust or not. If he has been guilty of a gross 
 negligence, it is as bad in its consequences as a fraud, and is a breach of 
 trust. The lending money on a note is not a breach of trust, without 
 other circumstances crassce ncgligentice." (o^ But the case from which 
 this dictum is taken has been called by Lord Eldon, from the extraordi- 
 nary doctrines contained in it, " a curious document in the history of 
 trusts ;"(p) and certainly it is now indisputably settled that a trustee 
 cannot lend on personal security.(j) *Lord Hardwicke said, 
 L J " a promissory note is evidence of a debt, but no scctirity for 
 it ;"ir) and Baron Hotham observed, that '< lending on personal credit 
 for the purpose of gaining a larger interest was a species oi gaming ;" {s) 
 and Lord Kenyon said, that « no rule was better established than that a 
 trustee could not lend on mere pei-sonal security, and it ought to be rung 
 in the ears of every one who acted in the character of trustee. "(<) And 
 it will not alter the case that the money is lent on the Joint security of 
 several obligors, (?/) or to a person to whom the testator himself had been 
 in the habit of advancing money on personal security . (t') 
 
 Of course a trustee may lend on personal security, where he is expressly 
 empowered to do so by the instrument creating the trust.(?(j) But no 
 such authority is communicated by a direction to place out the money at 
 interest at the trustee's discretionAx\ or on such good securitt/ as the 
 trustee can procure, and may think sa/e.M And if joint trustees be 
 empowered to lend on personal security, they may not lend to one of 
 
 (o) Harden v. Parsons, 1 Ed. 148. (j>) Walker v. Sjmonds, 3 Sw. 62. 
 
 (q) Adye v. Feuilleteau, 1 Cox, 24; Darke v. Martyn, 1 Beav. 525; Holmes v. 
 Bring, 2 Cox, 1; Terry v. Terry, Pr. Ch. 2T3 ; Ryder' v. Bickerston, cited Harden 
 v. Parsons, 1 Ed. 149, note (a), and more fully Walker v. Symonds, 3 Sw. 80 
 note (a) ; Vigrase v. Binfield. 3 Mad. 62 ; Walker v. Symonds, 3 Sw. 63 ; Anon 
 case, Lofft. 492 ; Keble v. Thompson, 3 B. C. C. 112 ; Wilkes v. Steward, Coop. 6 
 Clough V. Bond, 3 M. & Cr. 496, per Cur.; and see Pocock v. Reddington, 5 Ves 
 ■799 ; CoUis V. Collis, 2 Sim. 365 ; Blackwood v. Borrowes, 2 Conn. & Laws. 477 
 Watts V. Girdlestone, 6 Beav. 188. 
 
 ()•) Ryder v. Bickerston, cited Walker v. Symonds, 3 Sw. 81, note (a). 
 
 (s) Adye v. Feuilleteau, 1 Cox, 25. 
 
 {t) Holmes v. Bring, 2 Cox, 1. (u) S. C. 
 
 (v) Styles V. Guy, 1 Mac. & Gor. 423. 
 
 (w) See Forbes v. Ross, 2 B. C. C. 430; S. C, 2 Cox, 113 
 
 (x) See Pocock v. Reddington, 5 Ves. 794. 
 
 (y) Wilkes v. Steward, Coop. 6 ; Styles v. Guv, 1 Mac. & Gor. 422 ; Attorney- 
 General V. Higham, 2 Y. & C. Ch. Ca. 634 ; and 'see Mills v. Osborne, 7 Sim. 30 ; 
 Westover v. Chapman, 1 Coll. 177.
 
 DUTIES OF TRUSTEES OF CUATTELS PERSONAL. gH 
 
 themselves, for the settlor must be taken to rely upon tlie united vigilance 
 of all the trustees with respect to the solvency of the borrovjer.(^z^ And 
 when the court has assumed the administration of the estate by the 
 institution of a suit, it will not direct an investment on personal security, 
 though there be a power to lay out on either personal or government 
 security, but will order all future investments to be made on government 
 security, (a) 
 
 And where the trustees of a sum of money for A. for life, r:i;q9q-| 
 ^remainder for her children, were authorized by the settlement L J 
 to lend the trust fund upon real or personal security as should be thought 
 good and sufficient, and the trustees lent it to a person in trade whom 
 A. had married, and the money was lost, they wei-e made responsible 
 for the amount. Sir William Grant said, ''The authority did not extend 
 to an accommodation : it was evident the trustees had, upon the mar- 
 riage, been induced to accommodate the husband with the sum, which 
 they had no power to do." (6) In one 'case, where trustees were em- 
 powered to lend money to the husband on his personal security, to be 
 used by him in business, and the trustees advanced 600/. to the husband, 
 and he became insolvent, and the trustees received a dividend of 70/., 
 and they afterwards lent this sum to the husband on his recommencing 
 business upon the security of his bond, and the money was lost, it was 
 held that the trustees were not to be punished for the discretion they 
 had exercised, for it did not follow, that, if a person once became insol- 
 vent, he was never again to be trusted. (e) In another case, however, 
 where a trustee was required at the request of the wife to advance 
 money to the husband upon his bond, and the husband took the benefit 
 of the Insolvent Act, and the wife requested the trustee to advance 80?. 
 to the husband upon his bond, and the trustee refusing, the wife filed 
 her bill to have the trustee removed, the court said, <' that so total a 
 change had taken place in the circumstances and position of the husband 
 that the clause in question became no longer applicable to him and 
 ceased to have any eftect, and the trustee had done his duty when he 
 refused to lend the money.'' (c?) 
 
 No applications from cestuis qxie trust to their trustees are so frequent 
 as for a more productive investment for the benefit of the tenant for life. 
 In these cases the trustees must remember that the power was not given 
 them for the purpose of favouring one party more than another, and 
 that if they lend themselves improperly to the views of the tenant for 
 life *at the expense of the remaindermen, they will be held per- r*3^Q-| 
 sonally responsible. (e) 
 
 And in particular where there is the ordinary power of varying secu- 
 rities with the consent of the tenant for life, the trustees must consider the 
 intention to be that as the control is given to the tenant for life for his 
 
 (z) V. Walker, 5 Russ. 7 ; aud see Stickney v. Sewcll, 1 M. & C. 14 ; 
 
 "Westover v. Chapman, 1 Coll. 111. 
 (a) Holmes v. Moore, 2 Moll. 328. 
 (6) Langston v. Ollivant, Coop. 33. 
 (c) Burt V. Ingram, July 15, 1835, V. C. E. MSS. 
 
 {d) Boss V. Godsall, 1 Y. & C. Ch. Ca. 617. Compare cases, p. 349, infranote (b). 
 (e) Raby v. Ridehalgb, 1 Jur. N. S. 363 ; and see Stuart v. Stuart, 3 Beav. 430.
 
 312 LEWIN ON THE LAW OP TRUSTS, ETC, 
 
 protection, so the trustees have a discretion reposed in them for the pro- 
 tection of the remaindermen. Thus the power would not authorise a 
 conversion of the ti'ust fund from three per cent, consolidated bank annui- 
 ties into long annuities, for though the tenant for life would improve 
 his income the capital by the terminable nature of the security would be 
 gradually deteriorating ;(/) nor even from three per cent, consolidated 
 bank annuities into three and a quarter per cent, bank annuities, or 
 any permanent annuities of a higher rate, for the latter annuities being 
 more likely to be redeemed, and therefore less valuable, the gain, however 
 small, of the tenant for life, would be at the expense of the remainder- 
 men, (^r) 
 
 All the conditions annexed to the power must be strictly observed, as 
 if the authority be to lend to the husband icith the consent of the icife, 
 the trustees cannot make the advance on their own discretion, and take 
 the consent of the wife at a subsequent period. (/t) 
 
 A power " to place out at interest, or other way of improvement," will 
 not authorise an investment of the money in any trading concern ;(«') or 
 in fact any other investment than a government or real security,(Z:) but 
 otherwise it seems if the direction be not to " invest" but to " employ" 
 the money, which has been thought to savour of a trading concern. 
 
 [>^341] 
 
 Upon a marriage the wife's portion was settled upon the in- 
 
 tended husband and wife for their respective lives, remainder to 
 the issue, and a power was given to the trustees to " call in and lay out 
 the money at greater interest if they could." The trustees sold out stock 
 to the amount of 400^., and laid it out in the purchase of an annuity iox 
 one life, and had the life insured. Lord Manners said the purchase of 
 the annuity was not a proper disposition of a trust-fund settled as this 
 was.(7H) 
 
 If trustees be authorised to invest in stock or real security , and they 
 lend on personal security, and the money is lost, they shall be answera- 
 ble, not for the amount of the stock which might have been purchased, 
 but for the principal money lost, for if real security had been taken, the 
 principal only would have been forthcoming to the trust, and the want 
 of real security is all that is imputable to the trustees.(n) 
 
 A trustee may not invest the trust-fund in the stock of any private 
 
 if) Bate V. Hooper, 5 De Gex, Mac. & Gor. 338. 
 
 {g) In reference to the new three per cent, annuities (formerly three and a 
 quarter per cent.,) it is to be observed that, though specially exempt from further 
 reduction until 1874, which the three per cent, consols are not, the latter are 
 protected by a legislative provision requiring a year's notice to be given before 
 redemption. 
 
 (A) Bateman t. Davis, 3 Mad. 98 ; and see Cocker v. Quayle, 1 R. & M. 535 ; 
 Norris v. Wright, 14 Beav. 303 ; "Wiles v. Gresham, 2 Drewry, 258 : 5 De Ges, 
 Mac. & Gor. T70. j J) > > 
 
 (0 Cock V. Goodfellow, 10 Mod. 489. 
 
 [k] Dickenson v. Player, C. P. Cooper's Cases, 1837-8, 178. (I) S. C. 
 
 [m) Fitzgerald v. Priugle, 2 Moll. 534. 
 
 in) Marsh t. Hunter, 6 Mad. 295; Shepherd v. Mouls, 4 Hare, 500; Rees v. 
 \MUiams, 1 De Gex & Sm. 314; Robinson v. Robinson, 1 De Gex, Mac. & Gor. 
 i8«' °''^"'^^^°g Hockley V. Bantock, 1 Russ. 141; Watts V. Girdlestone, 6 Beav. 
 188, Ames V. Parkinson, 7 Beav. 379.
 
 DUTIES OF TRUSTEES OF CHATTELS PERSONAL. 313 
 
 company as South Sea stock, bank stock/o) &c., for the capital depends 
 upon the management of the governors and directors, and is subject to 
 losses. The South Sea company, for instance, might trade away their 
 whole capital, provided they kept within the terms of their charter. (|)) 
 " Bank stock," said Lord Eldon, " is as safe, I trust and believe, as any 
 government security ; but it is not government security, and therefore 
 this court does not lay out or leave property in bank stock ; and what 
 this court will decree it expects from ^trustees and executors."(2') r-^o±(}-\ 
 But if a trustee or executor make the mistake of investing in L "'J 
 bank stock instead of bank annuities, he is not liable for the actual loss 
 in sterling value, but only for the excess of the loss beyond that which 
 would have resulted if the investment had been made in bank annui- 
 ties. (?■) 
 
 Where a trustee was authorised to invest in " the three per cent. 
 consols, or three per cent, reduced, or any government securities," the 
 court refused to allow an investment on exchequer bills as not within 
 the power. (s) But where a trustee having engaged to lend a sum upon 
 mortgage, which was authorised by the powers of the will, instead of 
 leaving the money idle at his banker's, laid it out in exchequer bills as 
 a temporary investment, and productive of interest with little fluctuation 
 of value during the interval while the mortgage was in preparation, the 
 court held that such a dealing with the fund was justifiable. (^) And it 
 has since been expressly ruled that exchequer bills do fall within the 
 description of government securites.^w) 
 
 And where a testator directed all his property, except ready money 
 or moneys in ihQ funds, to be converted, and the proceeds to be invested 
 in three per cent, consols or othei' governvient securities in England, it 
 was held, that Greek bonds, though guaranteed by this country, were 
 not comprehended in the word ^' funds," and that they ought to be con- 
 verted, though the court disavowed any intention of saying that bonds 
 of that description might not, in other cases, be deemed government 
 securities, (v^ 
 
 With respect to investments upon mortgage Lord Harcourt said, 
 
 (o) Hynes v. Redington, 1 Jones & Lat. 589 ; 7 Ir. Eq. Rep. 405. 
 
 {p) Trafford v. Boehm, 3 Atk. 440, see 444 ; Mills v. Mills, 7 Sim. 501 ; Adie v. 
 Fennilitteau, cited Hancom v. Allen, 2 Dick. 499, note ; Emelie v. Emelie, 7 B. P. 
 C. 259. The reporter speaks in the last case of South Sea annuities; but no 
 doubt the investment had been made in South Sea stock. In Trafford v. Boehm 
 the investment had been in South Sea stock, but the reporter cites the case by a 
 similar mistake as one of investment in South Sea annuities. For the difference 
 between the two, see Trafford v. Boehm, 3 Atk. 444. Adie v. Fennilitteau, or 
 more correctly, Feuilleteau, has been examined in the registrar's book, but the 
 point does not appear. 
 
 {q) Howe V. Earl of Dartmouth, 7 Yes. 150. 
 
 (r) Hynes v. Redington, 7 Ir. Eq. Rep. 405; 1 Jones & Lat. 589. 
 
 (.s) Ex parte Chaplin, 3 Y. & C. 397. 
 
 (t) Matthews v. Brise, 6 Beav. 239. But the trustee having left the exchequer 
 bills in the hands of the broker for more than a year, and without being earmarked, 
 and the broker having disposed of the exchequer bills for his own purposes, and 
 become bankrupt, the trustee was, on that ground, made responsible for the value 
 of the bills at the date of the bankruptcy, with 4 per cent, interest. 
 
 (w) Ex parte South Eastern Railway Company, 9 Jur. 650. 
 
 (y) Burnie v. Getting, 2 Coll. 324. '
 
 314 LEW IN OX THE LAW OF TRUSTS, ETC. 
 
 " The case of an executor's laying out money without the *in- 
 [ ^"^ J demnity of a decree, if it were on a real security and one that 
 there ivas no around at the time to suspect, had not been settled ; but it 
 was his opinion the executor, under such circumstances, was not liable 
 to account for the loss."(w) And Lord Hardwicke,(a^) and Lord Alvan- 
 ley (v) appear likewise to have held that a trustee or executor would be 
 iustified in laying out the trust-fund upon well secured real estates. But 
 at the present day, when there is such a facility of investing upon 
 o-overnment security through the medium of the public funds, a trustee 
 or executor could scarcely be advised to make an investment upon mort- 
 gao-e where no authority was expressly given him. The practice of the 
 court, which ought to regulate the conduct of trustees, is now clearly 
 established. Upon application to Lord Thurlow to have part of a luna- 
 tic's estate invested upon landed security, his lordship said, " Though he 
 felt perfectly convinced by what was stated to him, that the security was 
 unexceptionable, yet he would not permit such a precedent to be made. 
 In latter times the court had considered it as improper to invest any part 
 of the lunatic's estate upon pra^a^c security."(2;) And Sir John Leach 
 refused a similar application with reference to the money of infants, at 
 the same time expressing his surprise that any precedent could have 
 been produced to the contrary. (a) Where there was no power of invest- 
 ing on mortgage, and the trustees intending to invest on government 
 securities, afterwards, at the instance of the tenants for life, and to pro- 
 cure a higher rate of interest, invested on mortgages which proved defi- 
 cient, they were liable for the difference to the cestui que trust in remain- 
 der. The ground of the decision was, that the trustees had consulted the 
 benefit of the tenants for life at the expense of the remainderman. The 
 r-KRlii *court gave no opinion upon the dry question, whether trustees 
 L J without a power could safely invest on mortgage, but did not en- 
 courage the idea that they could. (A) Of course trustees would not be 
 justified in lending upon mortgage, when they are directed by the testator 
 to invest exclusively in i\\Q funds. {c^ 
 
 Trustees may be, as they generally are, expressly empowered to invest 
 on real security. Where this is the case, the trustees may sell out three 
 per cent, bank annuities, and invest the proceeds on a mortgage ; for, in 
 this case, although the tenant for life may obtain a higher rate of inter- 
 est, yet no injury is done to the remainderman, as the capital is a con- 
 stant quantity, and if the tenant live long enough, he himself will have 
 the benefit. 
 
 Under the ordinary power of varying securities, a trustee would not be 
 
 (w) Brown T. Litton, 1 P. W. 141 ; and see Lyse v. Kingdon, 1 ColL 188. 
 
 {x) Knight V. Earl of Plymouth, 1 Dick. 126. 
 
 {y) Pocock v. Reddington, 5 Ves. 800. 
 
 (2) Ex parte Cathorpe, 1 Cox, 182 ; Ex parte Ellice, Jac. 234. 
 
 (a) Norbury v. Norbury, 4 Mad. 191 ; and see Widdowson v. Duck, 2 Mer. 494 ; 
 Ex parte Ellice, Jacob, 234 ; Ex parte Fust, 1 C. P. Cooper, T. Cott. 157, note (e) ; 
 Ex parte Franklyn, 1 De Gex & Sm. 531; Barry v. Harriot, 2 De Gex & Sm. 
 491 ; Ex parte Johnson, 1 Moll. 128 ; Ex parte Ridgway, 1 Hog. 309. 
 
 (h) Raby v. Ridehalgh, 1 Jur. N. S. 363. 
 
 (c) Pride V. Fooks, 2 Bear. 430; Waring v. Waring, 3 Ir. Ch. Rep. 331.
 
 DUTIES OF TRUSTEES OF CHATTELS PERSONAL, 315 
 
 justified in lending a sum of stock upon a mortgage of real estate, con- 
 ditioned for tlie replacing of the specific stock at a future day, and the 
 payment of half-yearly sums equal to the dividends in the mean time. 
 For the exercise of the power must be supposed to be beneficial to the 
 parties interested, or some of them; whereas, in this case, it is diffi- 
 cult to point out what possible advantage can accrue, though the divi- 
 dends be repaid and the stock be replaced. Nothing more is secured to 
 the trust than would have been by the effect of the original investment, 
 had it remained in statu quo ; while a government security is changed 
 for the risk of a private security, and perhaps some expenses may be in- 
 curred and this for no purpose. In short, such an arrangement would 
 look like an accommodation to some friend, rather than an investment 
 in furtherance of the trust. 
 
 The case is not so objectionable when the stock is to be replaced, and 
 in the mean time interest is to be paid on the amount produced by the 
 sale; for here one of the persons whose interest is to be consulted, viz., 
 the tenant for life, does receive a benefit in pnesenti, and the remain- 
 derman, if *he outlive the tenant for life and the mortgage con- r^o i r-i 
 tinue so long, will derive the same advantage. L '^'^''J 
 
 When trustees propose to lend upon mortgage, their attention should 
 be directed to two leading topics of inquiry; viz., 1. The sufficiency of 
 the value : and 2. The title of the borrower.(f?) 
 
 They must be careful not to advance more than two-thirds of the actual 
 value of the estate, if it he freeJioM land ;(e') or if the property consist 
 oi freehold houses they should not lend so much as two-thirds,(/) but only 
 half of the actual value. (r/) The rule, however, of two-thirds, or one- 
 half, is only a general one ; and where trustees have lent on the security 
 of property of less value, but have acted honestly, they have been pro- 
 tected by the court, and have even been allowed their costs. (A) As to 
 buildings used in trade, and the value of which must depend on external 
 and uncertain circumstances, trustees would not be justified in lending 
 so much as one-half. (A 
 
 Trustees are also precluded from lending on mortgage to one of them- 
 selves ;(yt) and a power to lend on real securities will not justify a loan 
 upon railway mortgages, for how is the value to be ascertained ?(/) And 
 where trustees are empowered to lend " on such securities as they should 
 approve," they are still bound to make inquiries, and exercise a sound 
 discretion whether the securities are of sufficient value ;(??<) and if trus- 
 
 (d) See Waring v. Waring, 3 Ir. Ch. Rep. 336. 
 
 (e) Sticknej^ v. Sewell, 1 M. & C. 8 ; Norris v. Weight, 14 Beav. 307 ; Macleod 
 V, Annesley, 16 Beav. 600. 
 
 (/) Stickney v. Sewell, Norris v. Wright, ubi supra ; Phillipson v. Gatty, 7 
 Hare, 516; Drosier v. Brereton, 15 Beav. 221. 
 
 (ff) Stretton v. Ashmall, 3 Drew. 12 ; Macleod v. Annesley, 16 Beav. 600. 
 
 (h) Jones v. Lewis, 3 De Gex & Sm. 471. Reversed on appeal, it is believed, 
 by Lord Truro, on Feb. 26, 1852, but on what grounds not known. 
 
 (i) Stickney v. Sewell, 1 M. & Cr. 8. 
 
 {k) Stickney v. Sewell, ubi supra ; and see v. Walker, 5 Euss. 7 ; Francis v. 
 
 Francis, 5 De Gex, Mac. & Gor. 108. 
 
 (l) Mant V. Leith, 15 Beav. 525. (m) Stretton v. Ashmall, 3 Drewry, 10.
 
 316 LEWIX ON TUE LAW OF TRUSTS, ETC. 
 
 tees lend on any irregular securities^ the onus lies on the trustees to show 
 the sufficiency of the security.(n) 
 
 *0f course where trustees and executors are empowered by the 
 L '^^"J ^iii to lay out the money upon real securities, they are authorized 
 in continuing- it upon existing mortgages, (o) But the trustees should 
 make inquiry as to the sufficiency of the security. 
 
 If trustees have a power of lending to three, on a mortgage of their 
 joint interest in a particular property, they cannot lend to two of them, 
 thouo-h the two maybe able to pass the whole interest. Neither can the 
 trustees lend to the three without taking any security at the time though 
 after an interval of two years they succeed in obtaining the security. It 
 is no excuse to say that the delay in taking the security did not occasion 
 the loss. The answer is, that the terms of the power were not complied 
 with.(p) 
 
 Though trustees, having an express power, may without risk, if upon 
 a proper motive, sell out bank annuities and invest the proceeds on 
 mortgage; yet, where the court has had the administration of the trust, 
 it has refused so to exercise the power, as a measure not for the benefit, 
 except remotely, of those in remainder, and of questionable advantage to 
 the tenant for life.(2') 
 
 Road bonds, or mortgages of the tolls and toll-houses, are real secu- 
 rities, though they may not be eligible real securities ; and if a testator, 
 having road bonds, empower his executor to leave any part of his assets on 
 existing " real securities," they are not bound to call in the road bonds, 
 but may exercise a discretion. Trustees, however, might not be justified 
 in lending trust money on road bonds as an original investment. (?•) 
 
 Where trust-money is lent upon inortgage, it is desirable to keep the 
 trust out of sight, that when the money is paid oif, the trust deed may 
 not become an essential link in the mortgagor's title. It is usual, there- 
 fore, to insert in the mortgage deed a declaration, that the money ad- 
 vanced belongs to the trustees (not, however, described in that character, 
 r*^i.7l ^^*' ^y *iiame,) on a joint account, and that the receipt of the 
 L J survivors or survivor, his executors or administrators, shall be a 
 sufficient discharge ; a practice which, asshming the principle deed to 
 confer the power of executing the trust and of giving receipts on the 
 survivors and survivor, his executors and administrators, does not seem 
 open to much objection, and has received the sanction of frequent usage. 
 Any declaration of trust that may be requisite is executed by a separate 
 deed. By this method should the mortgage be called in before any 
 change of trustees occurs, no inconvenience arises. Upon a change of 
 trustees, however, the difficulty of so framing a transfer to them of the 
 mortgage as not to disclose the trust is very great. Some conveyancers, 
 indeed, treat the difficulty as insurmountable, and disclose the trust ; 
 others recite in the transfer an actual payment of the mortgage money 
 
 (n) Stretton v. Ashmall, 3 Drewry, 10. 
 
 lo) Angersteia v. Martin, T. & R. 239 ; Ames V. Parkinson, V Beav, 379. 
 {p) Fowler v. Reynal, 3 Mac. & Gor, 500 ; 2 De G. & Sm. 749. 
 (g-) Barry v. Marriott, 2 De Gex & Sm. 241. 
 (r) Robinson v. Robinson, 1 De Gex, Mac. & Gor. 447.
 
 DUTIES OF TRUSTEES OF CUATTELS PERSONAL. 317 
 
 by the new trustees to the old, a practice open to the objection that it 
 involves a recital absolutely contrary to fact. A third and middle course, 
 frequently adopted, is as follows : A. and B. being appointed new trustees 
 in the room of C. and D., the recitals omit to notice the appointment of 
 A. and B. as new trustees, and merely state that A. and B. ''have 
 become entitled to the mortgage, and required C. and D. to convey and 
 assign to them." But this last method is by no means free from diffi- 
 culty. The degree of inaccuracy of statement is perhaps no greater than 
 that involved in the original joint account clause; but the absence of 
 consideration creates embarrassment, and there seems room for conten- 
 tion by a future purchaser of the mortgaged estate that he has a right to 
 know how A. and B. became entitled. Another mode is to recite that 
 C and D. are possessed of the mortgage moneys and security in trust for 
 A. and B. to whom the same belong on a joint account, and who are 
 desirous of having the same vested in them ; a method affording greater 
 prospect of success than that last mentioned, but involving at the same 
 time somewhat more divergence from the real facts. 
 
 Where trustees are expressly authorized to lend on real securities in 
 England, Wales, or Great Britain, they are now empowered by the act 
 of parliament, 4 & 5 Gul. 4, c. 29, to lend on real securities in Ireland. 
 But the second section *enacts that all loans in which any mmor, pjj^oj^Q-i 
 unborn child, ov person of unsound mind is interested, shall be L J 
 made by the direction of the Court of Chancery or Exchequer, such 
 direction to be obtained in any cause o\'{s\ upon petition in a summary 
 way. And the fourth section provides, that every such loan shall be 
 made with the consent of the person or persons, if any, whose consent 
 may be required as to the investment of such money upon real securities 
 in England, Wales, or Great Britain. And by the fifth section it is 
 declared, that the provisions of the act shall not apply to any case in 
 which the trust contains an express restriction against investment on 
 securities in Ireland. 
 
 Upon an application to the court under this act, for the investment of 
 a fund in court upon an Irish security, the master of the rolls refused 
 even a reference as to the propriety of such a step ; for though it would be 
 beneficial to the tenant for life as increasing the annual produce, it was 
 not so safe a security as regarded the remaindermen, and it was the duty 
 of trustees to act impartially for the benefit of all parties alike. (?) And 
 Lord Justice Knight Bruce, when vice-chancellor, appears to have enter- 
 tained similar views. (m) But such an order had been made by the vice- 
 chancellor of England ][v\ and a similar order was afterwards made by the 
 lord chancellor, though his lordship's attention was called to the case at 
 the rolls. His lordship observed, that since the act of parliament, Eng- 
 land and Wales must, for the purpose, be taken to include Ireland ; and 
 that the parties in remainder were interested, as well as the tenant for 
 life, in investing the money upon a security which would yield a higher 
 
 (s) Ex parte French, 7 Sim. 510. 
 . [t) Stuart V. Stuart, 3 Bear. 430. (m) Kkkpatrick's Trust, 15 Jurist, 941. 
 
 \v) Ex parte French, 7 Sim. 510. 
 
 Februaky, 1858.— 21
 
 318 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 rate of interest, for if it remained there long enough they would have 
 the benefit of it.[io) 
 
 If the consent of a married woman be required by the trust, and the 
 husband and wife present a petition, with her concurrence, under the 
 act this does not fulfil the requisition of the wife's consent to the invest- 
 ment ; for when the husband and wife join in any legal proceeding, it is 
 not the act of the *wife ; and whenever she is to be bound, it is 
 L ^ "^J necessary that she should appear distinctly and separately from 
 the husband. (x) 
 
 Trustees under a power to lend on mortgage, ought not to invest on 
 security of leaseholds for lives, for there can be no security without 
 resorting to a policy of insurance, and then, quafenus the policy, they 
 rely upon the funds and credit of a private company.(?/) This remark, 
 however, does not apply to leases for lives in Ireland renewable for ever, 
 (where the power authorises an investment on real securities in Ireland;) 
 but the trustees must not advance more than one-half the value of the 
 property.(2;) In the case of leaseholds, the lessee generally does not know 
 the lessor's title ; and where this is the case, it is an additional reason 
 why trustees cannot accept the security. 
 
 Where there is a power to lend on mortgage, there may be no objec- 
 tion to an investment on long terms of years, at a pepper-corn rent ; but, 
 as to leaseholds of short duration, and incumbered with covenants and 
 clauses of forfeiture, without laying down the rule that a trustee would 
 not be justified under any circumstances in lending on such a security, 
 he would at least be treading on very delicate ground, and the onus 
 would lie heavily upon him to make out the perfect property of the in- 
 vestment. (o) If the trustees be authorised and required, at the instance 
 of the tenant for life, to invest the trust fund in di purchase of leaseholds, 
 they have no option if the tenant for life insist upon his right. (6) 
 
 If a power be given to invest trust money in a purchase of lands, or 
 other freehold hereditaments, a trustee may no doubt purchase an estate 
 with a suitable house upon it; but it is conceived, that under such a 
 power trustees ought not to purchase a house merely. This is a proper- 
 ty of a wasting nature ; and although the tenant for life might be bound 
 to keep it in ordinary repair, he could not be compelled to preserve it 
 |-;;:r,/-n-i *against natural decay. It is clear that a power to invest in 
 '- ^ government annuities would not justify the purchase of long 
 annuities; and there is a similar diiference between land and houses, the 
 former being worth about thirty years' purchase, but the latter much less, 
 so that the tenant for life would be benefited at the expense of the re- 
 mainderman. 
 
 Trustees having a power to invest in a purchase of copyholds would 
 not be justified in buying copyholds for lives only.(c) 
 
 . (w) Ex parte Pawlett, 1 Phill. STO. {x) Norris v. Norris, 14 Beav. 291. 
 
 {y) See Lander v. Weston, 3 Drew. 389. (z) Macleod v. Annesley, 16 Beav. 600. 
 
 (a) See Wyatt v. Sharratt, 3 Beav. 498; Fuller v. Knight, 6 Beav. 209. 
 
 {b) Cadogan v. Earl of Essex, 2 Drewr. 227 ; Beauclerk v. Ashburnhani, 8 Beav. 
 
 (c) Trench v. Harrison, IT Sim. 111. N. B. The words, ^^ of inheritance;' in the 
 
 marginal note, do not occur in the settlement itself.
 
 DUTIES OF TRUSTEES OF CHATTELS PERSONAL. 319 
 
 Trustees cannot be advised to make advances upon a second mortgage, 
 not only because they bave neitber tbe legal estate nor tbe possession of 
 tbe title deeds, but also because they may be placed under serious diffi- 
 culties by tbe acts of the first mortgagee. If he file a bill of foreclosure, 
 the trustees will forfeit their interest unless they redeem, •which they 
 have no means of doing ; and if the first mortgage contain a power of 
 sale, the mortgagee may sell the property at a great disadvantage, and 
 the trustees cannot prevent it, unless by redemption, which the state of 
 the trust fund may, very probably, not permit.(fZ) 
 
 Of course, trustees may not join with others in a mortgage, so as to 
 mix up the trust fund with the rights of strangers ; and still less could 
 they take a joint mortgage in the name of a common trustee, for this 
 would be also a delegation of their duty. 
 
 There does not appear to be any absolute objection to a loan by trus- 
 tees on the security of a reversion; but they should be careful, in such 
 a case, not to advance more than the proper proportion, according to the 
 nature of the property, of the present value of the reversion, and in 
 taking a security of this kind a full power of sale would be an essential 
 provision. 
 
 Trustees who have a power to lend on real securities, may not lend on 
 personal security with a judgment entered up against the borrower; 
 though by the 1 & 2 Vict. c. 110, judgments are *made a charge r^oci-i 
 on all the lands of the debtor, as if he had, by writing under his L '"*' J 
 hand agreed to charge the same.(e) 
 
 When trustees propose to lend on mortgage, they should be careful 
 not to part with the money, except on delivery of the security ; for, of 
 course they will be liable for all the consequences if they sell out stock, 
 and allow their solicitor or agent to receive the money on his representa- 
 tion that the mortgage is ready, and it afterwards turns out that the pro- 
 posed security was a pure invention, and that the money has been mis- 
 applied. (/) 
 
 In the absence of any express power, the only unobjectionable invest- 
 ment is in one of the government or bank annuities; for here, as the 
 directors have no concern with the principal, but merely superintend 
 the payment of the dividends and interest till such time as the govern- 
 ment may pay off the capital, it is not in their power, by mismanagement 
 or speculation, to hazard the property of the shareholder. (y) And of 
 the government or bank annuities, the one which the court has thought 
 proper to adopt is the three per cent, consolidated bank annuities, the 
 fund, from its low rate of interest, the least likely to be determined by 
 redemption. (7i) Let a trustee who has money in hand which he ought 
 to render productive, invest it on this security, at the same time execut- 
 
 {d) See Norris v. Wright, 14 Beav. 308; Robinson v. Robinson, IG Jur. 256; 
 Drosier v. Brereton, 15 Beav. 226; Waring v. Waring, 3 Ir. Ch. Rep. 337. 
 
 [e) Johnston v. Lloyd, 7 Ir. Eq. Rep. 252. Decided upon the corresponding 
 enactment in the Irish Act, 3 & 4 Vict. c. 105. 
 
 (/) Rowland v. Witherden, 3 Mac. & Gor. 568; Hanbury v. Kirkland, 3 Sim. 
 265. 
 
 {g) TrafFord v. Boehm, 3 Atk. 444, per Lord Hardwicke. 
 
 \h) See Howe v. Earl of Dartmouth, 7 Yes. 151. See too p. 340, supra note {g).
 
 320 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 in"' a declaration of trust, that in the event of his bankruptcy or insol- 
 vency the fund may be identified, and he has done his duty, and will 
 not be answerable for any subsequent depreciation. (Q 
 
 In the report of Hancom v. Allen(Z;) it is said, "The trust 
 L '^'^"'J money had been laid out by the trustees in funds which sunk 
 in their value, without any mala fides ; but the same not being laid out 
 in the fund in which the court directs trust money to be laid out, the 
 trustees were ordered to account for the principal and pay it into the 
 bank, and then that it should be laid out in bank three per cent, annui- 
 ties." It might be inferred from this statement, that, if a trustee invest 
 in any other government security than the three per cent, consols, the 
 court would hold him accountable for any loss by a fall of the stock ; 
 but such a doctrine would be extremely severe against trustees,(A and 
 the case as extracted from the registrar's book is no authority for any 
 such proposition. Thomas Phillips, a trustee of 1500/., instead of invest- 
 ing the money in a purchase of land and in the mean time on some 
 sufficient security, as required by the trust, had advanced it to his 
 brother, John Phillips, a banker, without taking any other precaution 
 than accepting a simple acknowledgment of the loan. John Phillips 
 continued to pay interest upon the money for some time, but eventually 
 became insolvent, and the fund was lost. The court under these cir- 
 cumstances called upon the trustee to make good the amount. The 
 decision was reversed in the house of lords, perhaps on the ground of 
 the plaintiff's acquiescence. (m) A trustee, however, must confine him- 
 self to government securities ; for he is not allowed to invest even on 
 piMic securities, which are not government securities. («) 
 
 Where .sMcccsstte estates are limited, the scale should of course be held 
 evenly as between all parties, and the tenant for life should not be 
 allowed, by an investment on a security less safe or less permanent than 
 the usual one, and therefore yielding to the present holder an increased 
 rate of interest, to advance himself at the expense of the remainderman. 
 Upon this principle, if a testator's estate consist of bank stock, long 
 annuities, or other fund either not a government security or not of the 
 r;^or.3-i most permanent character, the court, as soon as its *observation 
 L J is attracted to the circumstance, invariably directs a conversion 
 of such estate into three per cent, bank annuities. (o) Even four per 
 cent, and five per cent, bank annuities, as more liable to the chance of 
 
 (t) Bird V. Lockey, 2 Vern. 744, 4tli point ; Ex parte Champion, cited Franklin 
 T. Frith, 3 B. C. C. 434; Powell v. Evans, 5 Yes. 841, and Howe v. Earl of Dart- 
 mouth, 7 Ves. 150 ; Knight v. Earl of Plymouth, 1 Dick. 126, per Lord Hardwicke; 
 Peat V. Crane, cited Hancom v. Allen, 2 Dick. 499, note ; Clough v. Bond, 3 M. & 
 C. R. 496, per Lord Cottenham; Holland v. Hughes, 16 Ves. 114, per Sir W. 
 Grant; Moyle v. Moyle, 2 R. & M. 716, per Lord Brougham; and see Jackson v. 
 Jackson, 1 Atk. 513. 
 {k) 2 Dick. 498. 
 
 [I) See Angell v. Dawson, 3 Y. & C. 316 ; Ex parte a projected Railway, 11 Jur. 
 160; Matthews v. Brise, 6 Beav. 239 ; Band v. Fardell, 1 Jur. N. S. 1214. 
 (m) 7 B. P. C. 375. 
 
 (n) Sampayo v. Gould, 12 Sim. 435, per Sir L. ShadweU. 
 o) Howe>v. Earl of Dartmouth, 7 Yes. 137, and the cases cited, ib. ; Mills v. 
 Mills, 7 Sim. 501 ; Bate v. Hooper, 5 De G. M. & G. 338. See Pickering v. Picker- 
 ing, 4 M. & Cr. 289.
 
 DUTIES OF TRUSTEES OF CHATTELS PERSONAL. 321 
 
 redemption, are ordered to be similarly converted. (^) It follows that 
 trustees, who must be guided by the conduct of the court, should, where 
 successive interests are limited, invest in the three per cent, bank 
 annuities, and in that fund exclusively. 
 
 However, when the trustees were directed by the will to invest " on 
 government or other gcod security," and part of the testator's estate 
 consisted of navy five per cents., and the tenant for life continued to 
 receive the dividends for more than thirty years, the court refused to 
 hold the trustees liable, for not having converted the navy five per cents, 
 into three per cent. consols.(5') Of course, where the fund is already 
 invested in consols, it would be a gross breach of trust to sell out and 
 invest the proceeds in an irregular fund, as, for instance, in long 
 annuities. Tr) 
 
 Where a tenant for life has been wrongly in possession of the dividends 
 of a stock which ought to have been converted, he will be accountable 
 to the remainderman for the excess of his receipts beyond the income 
 he would have received had the fund been properly invested. (s) Should 
 the tenant for life be insolvent, the executors of the testator would pro- 
 hahly be decreed to make compensation to the sufi'ering party ; but Lord 
 Eldon said, he would not state what the court would do in such a case, 
 for it depended on many circumstances. (<) In the subsequent case of 
 Dimes v. Scott,(?^) where the executors were expressly directed to convert 
 the testator's personal *estate into money, and invest the pro- r-jjioc^-i 
 ceeds in government or real securities in trust for A, for life, L J 
 remainder to B., and the executors for eleven years permitted A. to 
 receive 10 per cent, interest upon an Indian loan, it was held they were 
 chargeable with, the difi'erence between the 10 per cent, interest they 
 had wrongfully paid, and the interest that would have resulted from a 
 conversion into three per cent, consols at the expiration of one year 
 from the testator's decease. 
 
 If any stock, other than three per cent, consols, be specifically 
 bequeathed to A, for life, remainder to B., in that case the court has 
 no power to direct a conversion into three per cent, consols ;(i') and a 
 power of varying the securities expressly given to the executors will 
 make no difi'erence in this respect, for the testator is held to have given 
 them the authority, not with the intention of varying the relative rights 
 of the legatees, but merely with the view of adding security to the 
 property, (if) 
 
 A testator gave his residuary estate to executors upon trust to pay 
 
 {p) Howe V. Earl of Dartmouth, 7 Yes. 151, per Lord Eldon ; Powell v. Cleaver, 
 and other cases, cited id. 142. 
 
 {q) Band v. Fardell, 1 Jur. N. S. 1214. 
 
 (r) Kellaway v. Johnson, 5 Beav. 319. 
 
 {s) Howe V. Earl of Dartmouth, 7 Ves. 13Y, see 150, 151; Mills v. Mills, ubi 
 supra ; and see Pickering v. Pickering, 4 M. & Cr. 289. 
 
 {t) See Howe v. Earl of Dartmouth, 7 Ves. 150 ; Holland v. Hughes, 16 Ves. 114. 
 
 (m) 4 Russ. 195 ; and see Mehrtens v. Andrews, 3 Beav. 72. 
 
 (v) Lord V. Godfrey, 4 Mad. 455 ; Alcock v. Sloper, 2 M. & K. 699 ; Collins v. 
 Collins, ib. 703; Bethune v. Kennedy, 1 M. & C. 114; Vincent v. Newcombe, 1 
 Younge, 599 ; and see Pickering v. Pickering, 4 M. & Cr. 289. 
 
 [w) Lord V. Godfrey, 4 Mad. 455.
 
 322 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 the annual produce to A. for life in equal portions at Lady-day and 
 Michaelmas-day, and after his decease in trust for other purposes. A 
 motion was made that the executors might invest a sum in their hands 
 in the three per cent, bank annuities, but it was objected that the 
 dividends of this stock were payable in January and July, whereas, if 
 the money were laid out in the three per cent, reduced annuities, the 
 dividends would be payable at the time directed by the testator ; and 
 Sir John Leach made the order accordingly. (.r) 
 
 A mortgage may produce a higher rate of interest that an investment 
 in the three per cent, consols ; but in this case the advantage does not 
 arise from the inferior nature of the security as in the instance of bank 
 stock, nor from any perishable or redeemable quality as in the instance of 
 the long annuities or the four per cents. ; the court, therefore, will 
 L J *not permit the mortgage to be called in without a previous 
 inquiry by the master whether it will be for the benefit of all the parties 
 interested, (y) 
 
 And where a testator dies in India, and neither the fund nor the par- 
 ties entitled to it are under the jurisdiction of the court of chancery, it 
 is not the duty of the executor to transmit the assets to England to be 
 invested in the three per cent, consols, but he may invest the property 
 in the securities of the East India Company, and the tenant for life will 
 be entitled to the dividends or interest, though to the amount of 10 or 
 12 per cent. If the parties return to England, and so come under the 
 jurisdiction of the court, the fund may then be brought over at the 
 instance of the remainderman, and the tenant for life must submit to 
 the consequential reduction of his income. (z) 
 
 If trustees are bound by the terms of their trust to invest in the^5Z(&- 
 Uc funds, and instead of so doing they retain the money in their hands^ 
 the cestuis que trust may clearly elect to charge them with the amount of 
 the money or with the amount of the stock which they might have pur- 
 chased with the money, (a) And as the court expects a trustee, where 
 the trust is of a permanent character, to invest the fund in three per 
 cent, bank annuities, even though the settlement contain no express 
 direction to that effect, the trustee, if he improperly retained the money 
 in his hands, would, it seems, in this case also be held liable at the 
 option of the cestuis que trust for the principal sum or the amount of 
 stock which it would have purchased. (6) 
 
 But if trustees or executors be directed by the will to convert the 
 testator's property and invest it in government or real securities, it was 
 long a question whether they should be answerable for the principal 
 money with interest, or the amount of stock which might have been 
 PS'iri P^^*2^^^sed at the period when the conversion should have been 
 '- -• made, and subsequent *dividends, at the option of the cestuis 
 
 (a;) Caldecottv. Caldecott, 4 Mad. 189. 
 [y) See Howe v. Earl of Dartmouth, 7 Ves. 150. 
 {z) Holland v. Hughes, 16 Ves. Ill ; S. C. 3 Mer. 685. 
 
 (a) Shepherd v. Mouls, 4 Hare, 504, per Sir J. Wigram ; Robinson v. Robinson, 
 1 De Gex, Mac. & Gord. 256, per Cur. 
 
 {b) Robinson v. Robinson, 1 De Gex, Mac. & Gor. 256, per Cur.
 
 DUTIES OF TRUSTEES OF CHATTELS PERSONAL. 323 
 
 q^ie trust ;(c) or whether they should be charged with the amount of 
 principal and interest only, without an option to the cestuis que trust of 
 taking the stock and dividends. ((i?) It has now been decided that the 
 trustee is answerable only for the principal money and interest, and 
 that the cestuis que trust have no option of taking the stock and divi- 
 dends. The principle upon which the court proceeded, was that the 
 trustee could be held liable only for not having done what it was his 
 duty to have done, and the measure of his responsibility was that which 
 the cestuis que trust must have been entitled to in whatever mode that 
 duty was perforoied ; that the trustee might have discharged his duty 
 without purchasing three per cent, bank annuities ; that the trustee was 
 not bound retrospectively to have exercised the discretion one way or 
 the other, but was answerable only for the consequences of not having 
 exercised the discretion ; that to compel the trustee to purchase a sum 
 of stock because the price had since risen, was to regulate the liability 
 by an accidental or subsequent occurrence, and not by the superiority of 
 the stock over a mortgage at the time when the investment ought to 
 have been made.(e) 
 
 If the trust-fund be standing on a proper security, and the trustee 
 call it in for no purpose connected with the trust, and therefore in dere- 
 liction of his duty, or for a purpose not authorised by the terms of the 
 trust, he will be compellable, at the option of the cestuis que trust, either 
 to replace the specific stock, or the stock into which, if not sold out, it 
 would have been converted by act of parliament, (/) with the interme- 
 mediate dividends, ((/) or to account for the proceeds of the sale(/t) with 
 '''interest at 5 per cent.(t) And the breach of trust will not be r:):qp;7-i 
 cured by a subsequent reinvestment upon the trusts of the stock L J 
 unless the reinvestment be the same in specie. (/.;) But in a case where 
 the trustee did not seek to make any thing himself, but was honourably 
 unfortunate in having yielded to the importunity of one of the cestuis 
 que trust, it was held by Sir A. Hart, that, although the trustee was 
 bound to replace the specific stock, the cestuis que trust should not have 
 the option of taking the proceeds with interest. (^) If the trustee become 
 bankrupt, the cestuis que trust may at their option prove for the proceeds 
 
 (c) Hockley V. Bansock, 1 Russ. 141; Watts v. Girdlestone, 6 Beav. 188; Ames 
 v. Parkinson, V Beav. 379 ; Ouseley v. Anstruther, 10 Beav. 456. 
 
 {d) Marsh v. Hunter, 6 Mad. 295; Gale v. Pitt, M. R. 10 May, 1830: Sheplierd 
 V. Mouls, 4 Hare, 500 ; Rees v. Williams, 1 De G. & Sm. 319. 
 
 (e) Robinson v. Robinson, 1 De Gex, Mac. & Gor. 247. 
 
 (/) Pbillipson v. Gatty, 7 Hare, 516; Norris v. Wright, 14 Beav. 304, 305; 
 Phillipo V. Mannings, 2 M. & Cr. 309. 
 
 {g) Davenport v. Staiford, 14 Beav. 335. 
 
 (A) Bostock V. Blakeney, 2 B. C. C. 653; Ex parte Shakeshaft, 3 B. C. C. 197 ; 
 O'Brien v. O'Brien, 1 Moll. 533, per Sir A. Hart; Raphael v. Boehm, 11 Ves. US, 
 per Lord Eldon ; Harrison v. Harrison, 2 Atk. 121 ; Bate v. Scales, 12 Ves. 402 ; 
 Phillipson v. Gatty, 7 Hare, 516; Norris v. Wright, 14 Beav. 305; Rowland v. 
 Witherden, 3 Mac. & Gor. 568 ; Wiglesworth v. Wiglesvvorth, 16 Beav. 269. 
 
 («') Crackelt v. Bethime, 1 J. & W. 586; Mosley v. Ward, 11 Ves. 581 ; Pocock 
 V. Reddington, 5 Ves. 794; Piety v. Stace, 4 Ves. 620; Jones v. Foxall, 15 Beav. 
 392. 
 
 (k) Lander v. Weston, 3 Drew. 389. 
 
 {I) O'Brien v. O'Brien, 1 Moll. 533.
 
 394 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 with interest, or for the price of the specific stock at the date of the 
 commission. (m) 
 
 If trustees are under an obligation to invest in the funds, and they 
 pay the money into a bank with a direction to lay it out in bank annui- 
 ties, and the bankers neglect to do it, and the trustees make no inquiry 
 for five months, and the bankers fail, the trustees are answerable for the 
 money or the stock at the option of the cestuis que trust.(n) 
 
 Trustees would not be justified in making any investment that would 
 subject the trust-money to the power or control of any 07ie of the trustees 
 sinsly ; they could not, for instance, lay out the fund upon India bills 
 (supposing such a security were warranted by the settlement,) if made 
 payable, not to all the trustees in their joint capacity, but to one of the 
 trustees individually, (o) 
 
 Attorneys and solicitors employed in negotiating a loan of trust-moneys, 
 may not be liable for a breach of trust if they have no other privity with 
 the transaction than what arises from their professional duties, but they 
 will be deemed trustees *and be responsible as such if they 
 L -I act professionally in carrying out a transaction which they know 
 to be a breach of trust, and which is calculated to promote their own 
 private ends.(jj) In laying out trust-moneys, trustees would do well 
 not to employ the same solicitor who acts for the borrower. Besides the 
 inconveniences that arise from the doctrine of implied notice, there is in 
 this case such a conflict of duties on the part of the solicitor, that he 
 cannot adequately represent the interests of both lender and borrower. (5) 
 
 SECTION IV. 
 
 LIABILITY OP TRUSTEES TO PAYMENT OP INTEREST. 
 
 If the trustee be guilty of any unreasonable delay in investing the 
 fund or transferring it to the hand destined to receive it, he will be 
 answerable to the cestui que trust for interest during the period of his 
 laches, and a trustee may be decreed to pay interest even though it be 
 not prayed by the bill,(/-j and will be liable to pay personally the costs 
 of the suit.M 
 
 An executor should discharge the testator's liabilities as soon as he 
 has collected assets sufficient for the purpose, and therefore if he keep 
 money in his hands idle, when there is an outstanding debt upon which 
 
 (m) Ex parte Shakeshaft, 3 B. C. C. 197 : Ex parte Gurner, 1 Mont. Deac. & De 
 Gex, 49Y. 
 
 (n) Challen t. Shippam, 4 Hare, 555. 
 
 (o) Walker v. Symonds, 3 Sw. 1, see 66 ; and see Salway v. Salway, 2 R. & M. 
 218 ; Ex parte Griffin, 2 Gl. & J. 114 ; Clough v. Dixon, 8 Sim. 594; 3 M. & C. 490. 
 
 (p) AUeyne v. Darcey, 4 Ir. Ch. Re. 199, see 204, 208 ; Fyler v. Fyler, 3 Beav. 
 
 (?) See Waring v. Waring, 3 Ir. Ch. Re. 331. 
 
 (4 Woodhead V. Marriott, C. P. Coop. Cases, 1837-38, 62 ; Turner v. Turner, 1 
 
 {s) Tickner v. Smith, 3 Sm. & Gif. 42.
 
 DUTIES OF TRUSTEES OF CHATTELS PERSONAL. 325 
 
 interest is running, lie will himself be charged -with interest on a sum 
 equal in amount to the debt, and if the outstanding debt carry interest 
 at 5 per cent., the executor -will be charged with interest at the same 
 rate.(i) 
 
 After payment of debts and legacies, if the executor or administrator 
 be guilty of laches in accounting for the surplus ^estate to the r^g^g-i 
 residuary legatee,(w) or next of kin,(i;) he will be charged by L J 
 the court with interest for the balance improperly retained, whether the 
 prayer of the bill extend to it or not. (it)) 
 
 And, on the same principle, if the assignees of a bankrupt neglect to 
 pay a dividend to the creditors, (x) or the receiver of an estate do not 
 move the court in proper time to have the rents invested, (^) they will 
 be ordered to account for the money with interest from the time the breach 
 of duty commenced. 
 
 And an executor or other person cannot excuse himself by saying that 
 he made no actual use of the money, but lodged it at his banker's,(z) and 
 to a separate account,(a) for it was a breach of trust to retain the money: 
 he was bound to make lijiroductive to the cestui que trust. 
 
 But, where an executor conceived he was himself entitled to the resi- 
 due, and the court considered his claim to be just in itself, but was obliged 
 from a particular circumstance in the case to give judgment against him, 
 it was thought too severe to put him in the situation of one who had neg- 
 lected his duty, and the demand against him for interest was consequently 
 disallowed. (6) 
 
 ^Formerly, indeed, it was held by the court, that an executor r^ogQ-i 
 might employ the assets in his trade, or lend them upon security, L J 
 and he should not be called upon to account for the profits or interest. (c) 
 And such was the case even where money which had been lent by the 
 
 {t) Dornford v. Dornford, as cited in Tebbs v. Carpenter, 1 Mad. 301 ; Hall v. 
 Hallet, 1 Cox, 134; Turner v. Turner, 1 J. & W. 39. 
 
 (m) Forbes v. Ross, 2 Cox, 113; Seers v. Hind, 1 Ves. jun. 294; Younge v. 
 Combe, 4 Ves. 101; Longmore v. Broom, 7 Ves. 124; Rocke v. Hart, 11 Ves. 58; 
 Piety V. Stace, 4 Ves. 620 ; Ashburnliam v. Thompson, 13 Ves. 402 ; Raphael v. 
 Boehm, 11 Ves. 92; S. C. reheard, 13 Ves. 40T ; S. C. spoken to, 13 Ves. 590; 
 Dornford v. Dornford, 12 Ves. 127 ; Franklin v. Frith, 3 B. C. C. 433 ; Littlehalves 
 V Gascoyne, 3 B. C. C. V3 ; Newton v. Bennet, 1 B. C. C. 359; Lincoln v. Allen, 
 4 B. P. C. 553 ; Crackelt v. Bethune, 1 J. & W. 586 ; Tebbs v. Carpenter, 1 Mad. 
 290 
 
 (v) Hall V. Hallett, 1 Cox, 134 ; Perkins v. Baynton, 1 B. C. C. 315 ; Stackpoole 
 V. Stackpoole, 4 Dow, 209, see 224; Heathcote v. Hulme, IJ. & W. 122; Holgate 
 V. Haworth, 17 Beav. 259. 
 
 (w) Hollingsworth v. Shakeshaft, 14 Beav. 492. 
 
 (2-) Treves v. Townshend, 1 B. C. C. 384; In re Hilliard, 1 \es. jun. 89. 
 
 (/) Foster v. Foster, 2 B. C. C. 616; Hicks v. Hicks, 3 Atk. 274; Hankey v. 
 Garret, 1 Ves. jun. 236. ^ ^ „ „ 
 
 (z) Younge v. Combe, 4 Ves. 101 ; Franklin v. Frith, 3 B. C. C. 433; Treves v. 
 Townshend, 1 B. C. C. 384; In re Hilliard, 1 Ves. jun. 89; Dawson v. Massey, 1 
 B. k B. 230; Browne v. Southouse, 3 B. C. C. 107 ; and see Rocke v. Hart, 11 
 Ves. 60. 
 
 (a) Ashburnham v. Thompson, 13 Ves. 402. 
 
 (b) Bruere v. Pemberton, 12 Ves. 386. But see Sutton v. Sharp, 1 Russ. 146; 
 and Turner v. Maule, 3 De G. & Sm. 497. 
 
 (c) Grosvenor v. Cartwright, 2 Ch. Ca. 21 ; Linch v. Cappy, 2 Ch. Ca. 35; and 
 see Brown v. Litton, 1 P. W. 140.
 
 326 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 testator on good security was called in by the executor for tlie express 
 purpose of being re-lent by himself. The executor, it was argued, was 
 not bound to lend the assets, and if he did so, it was at his peril, and he 
 was answerable for losses, and, if accountable for any loss, he was surely 
 entitled to any gains. («^) But Lord North overruled the doctrine in spite 
 of the alleged practice of the court for the last twenty years, and the 
 authority of above forty precedents. As to the argument, that, if the 
 money should be lost, the executor would be personally responsible, his 
 lordship said, it was very well known that a man might insure his money 
 at the rate of 1 per cent.(e) 
 
 A distinction was afterwards taken between a solvent and an insolvent 
 executor; that the former, as he might suffer a loss, should take the 
 gain, but as an executor who was insolvent at the time of the loan could 
 incur no risk of a loss personally, he should not be allowed to take to 
 himself any benefit. (/) 
 
 And Lord Hardwicke drew another distinction ; that if an executor 
 had -placed out assets that were specifically hequeathecl, he should be 
 made to account for the interest, but the master was never directed to 
 charge interest upon an executor who made use of general assets, come 
 to his hands, in the v:ay of his trade.(g\ 
 
 But all these refinements have long since been swept away;(^) and 
 the rule is now universal, that, whether the executor was solvent or in- 
 P^qp-i-i solvent, whether the money was part of *the general assets or 
 •- J specifically bequeathed, whether lent upon security or employed 
 in the way of trade, the executor shall account for the utmost actual pro- 
 fits to the testator's estate. (i) 
 
 And where the money has been employed in trade, the cestui que trust 
 has the option of taking the actual profits or of charging the executor 
 with interest.(y) And an executor who is a trader is considered to employ 
 the money in trade, if he lodge it at his banker's, and place it in his own 
 name, for a merchant must generally keep a balance at his banker's, and 
 this answers the purpose of his credit as much as if the money were his 
 own.^A:) 
 
 The rate of interest with which an executor is usually charged is 4 per 
 cent.;(/) but the rule holds only where it does not appear that the exe- 
 
 {d) See Ratcliffe v. Graves, 2 Ch. Ca. 152. 
 
 (e) Ratcliffe v. Graves, 1 Vern. 196 ; S. C. 2 Ch. Ca. 152. 
 
 (/) Bromfield v. Wytherley, Pr. Ch. 505; Adams v. Gale, 2 Atk. 106. 
 
 (g) Child V. Gibson!| 2 Atk. 603. 
 
 [h) As to the former distinction, see Newton v. Bennet, 1 B. C. C. 361 ; Adye v. 
 Feuilleteau, 1 Cox, 25 ; and as to the latter, see Newton v. Bennet, 1 B. C. C. 361. 
 
 (i) Tebbs v. Carpenter, 1 Mad. 304, per Sir T. Plumer ; Lee v. Lee, 2 Vern. 548 ; 
 Adye v. Feuilleteau, 1 Cox, 24 ; Piety v. Stace, 4 Ves. 622, per Lord Alvanley. 
 
 (./) Heathcote v. Hulme, 1 J. & W. 122; Anon, case, 2 Ves. 630, per Sir T. 
 Clarke ; Docker v. Somes, 2 M. & K. 655 ; Ex parte Watson, 2 V. & B. 414 ; 
 Brown v. Sansome, 1 M'Clel. & Y. 427 ; Robinson v. Robinson, 1 De Gex, Mac. & 
 Gor. 257. 
 
 {k) Treves v. Townshend, ubi supra ; Moons v. De Bernales, 1 Russ. 301 ; In re 
 Hilhard, 1 Ves. jun. 90 ; Sutton v. Sharp, 1 Russ. 146 ; Rocke v. Hart, 11 Ves. 61 ; 
 but see Browne v. Southouse, 3 B. C. C. 107. 
 
 (0 See Forbes v. Ross, 2 Cox, 116; Hall v. Hallet, 1 Cox, 138 ; Tebbs v. Car- 
 penter, 1 Mad. 306 ; In re Hilliard, 1 Ves. jun. 90 ; Browne v. Southouse, 3 B. C.
 
 DUTIES or TRUSTEES OF CHATTELS PERSONAL. 327 
 
 cutor has made greater interest, for the court invariably compels the 
 executor to account for every farthing he has actually received. (7?i) 
 
 It is not easy to define the circumstances under which the court will 
 charge executors and trustees with more than 4 per cent, interest, or with 
 compound interest, and the principles by which the court is regulated in 
 so doing are involved in much uncertainty. In a late case, the rule was 
 thus laid down by the present master of the rolls : <'If an executor has 
 retained *balances in his hands, which he ought to have invested, r^opQ-i 
 the court will charge him with simple interest, at 4 per cent. L "J 
 If, in addition to such retention, he has committed a direct breach of 
 trust, or if the fund had been taken by him from a proper state of in- 
 vestment, in which it was producing 5 per cent., he will be charged with 
 interest after the rate of 5 per cent, per annum. If, in addition to this, 
 he has employed the money so obtained by him in trade or speculation, 
 for his own benefit or advantage, he will be charged either with the pro- 
 fits actually obtained from the uses of the money, or with interest at 5 
 per cent, per annum, and also with yearly rests, that is, with compound 
 interest. "(n) 
 
 The previous dicta and decisions undoubtedly seem to establish, in 
 accordance with the views just quoted, that an executor will be charged 
 with interest at 5 per cent, where he is guilty, not merely of negligence, 
 but of actual corruption or misfeasance, amounting to a wilful breach of 
 trust. (o) But in a recent case before the present lord chancellor, his lord- 
 ship expressed his disapprobation of charging the executor with a higher 
 rate of interest by way oi penalty, and stated his own opinion as follows : 
 " What the court ought to do, I think, is to charge him only with the 
 interest which he has received, or which it is justly entitled to say he 
 ought to have received, or which it is so fairly to be presumed that he did 
 receive that he is estopped from saying that he did not receive it. I do 
 not think there is any other intelligible ground for charging an executor 
 with more interest than he has made, than one of those I have mentioned. 
 Misconduct does not seem to me to warrant the conclusion that the exe- 
 cutor did in point of fact receive, or is estopped from saying that he did 
 not receive, the interest, or that he is to be charged with anything he 
 did not receive, if it is not misconduct contributing to that r^ogg-i 
 particular result."(jj>) The particular case *before his lordship L J 
 
 C. 107 ; Mosley v. Ward, 11 Ves. 582 ; Perkins v. Baynton, 1 B. C. C. 375 ; Tre- 
 ves V. Townshend, 1 B. C. C. 386 ; Hicks v. Hicks, 3 Atk. 274 ; Younge v. Combe, 
 4 Ves. 101 ; Rocke v. Hart, 11 Ves. 58 ; Hankey v. Garret, 1 Ves. jun. 236 ; but 
 see Bird v. Lockey, 2 Vern. 744, 4th point; Carmichael v. Wilson, 3 Moll. 79; 
 Attorney-General v. Alford, 4 De Gex, Mac. & Gor. 843. 
 
 (m) Forbes v. Ross, 2 Cox, 116, per Lord Tliurlow; In re Hilliard, 1 Ves. jun. 
 90,j9er eitndem; Hankey v. Garret, 1 Ves. jun. 239, per eundem ; Brown v. Litton, 
 10 Mod. 21, per Lord Harcourt ; Hall v. Hallet, 1 Cox, 138, per Lord Thurlow. 
 
 (n) Jones v. Foxall, 15 Beav. 392. 
 
 (o) Tebbs v. Carpenter, 1 Mad. 306, per Sir T. Plumer; Bick v. Motly, 2 M. & 
 K. 312; Mousley v. Carr, 4 Beav. 53, per Lord Langdale; and see Crackelt v. Be- 
 thune, 1 J. & W. 588 ; Docker v. Somes, 2 M. & K. G70 ; Munch v. Cockerell, 5 M. 
 & Cr. 220 ; but see Meader v. M'Cready, 1 Moll. 119. 
 
 (p) Attorney-General v. Alford, 4 De Gex, Mac. & Gor. 851, 852. In Mayor of 
 Berwick v. Murray, March 7, 1857, the lord chancellor explained that, what he 
 thought in Attornev-General v. Alford was, "that, although there had been great
 
 328 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 was merely one of omission to invest, under circumstances of gross negli- 
 gence; and it is conceived that, although his observations cast a certain 
 degree of doubt over the class of authorities last referred to, they cannot 
 be considered as overruled. 
 
 Whether, where the money has been employed in trade, simj^le or 
 compound interest shall, as a general rule, be charged, is a point upon 
 which the decisions are at conflict, the older pointing invariably to sim- 
 ple interest as the proper measure of liability, but some of the more 
 recent to compound interest. Respecting the rate of interest there has 
 been no conflict. It has been almost invariably held to be 5 per cent.,(5') 
 the court presuming every business to yield a profit to that amount ; 
 though Lord Thurlow, in one case, ofi'ered an inquiry whether, under 
 the circumstances, such a rate of interest might not be too high ;{r) and 
 in another, where an executor proved extenuating circumstances, 4 per 
 cent, only was charged. (s) The first case in which a trustee appears to 
 have been charged with compound interest, by reason only of his having 
 used trust money in trade, appears to have been that of Walker v. Wood- 
 ward. (<) There Lord Gifi"ord — the trustee acknowledging that he had 
 made great profits, though he could not furnish the particulars, and the 
 cestui que trust waiving the investigation of the actual gains — directed 
 5 per cent, interest to be charged unth annual rests. Subsequently the 
 late vice-chancellor of England refused to charge a trustee of a charity 
 estate, who had used the trust moneys in carrying on his trade, with 
 compound interest ;(«) but in a later case. Sir John Leach charged an 
 executor with compound interest under similar circumstances,(i) and in 
 the two latest reported decisions on the subject, the present master of 
 the rolls, in accordance *with the rule laid down by him (as be- 
 L -I fore stated,) directed an account with rests. («?) 
 
 Where a testator expressly directs an accumulation to be made, and 
 the executor disregards the injunction, it seems compound interest will 
 be decreed. (a;) "Where there is an express trust," said Lord Eldon, 
 "to make improvement of the money, if he will not honestly endeavour 
 to improve it, there is nothing wrong in considering him, as to the prin- 
 
 misconduct on the part of Mr. A., in not communicating to the proper authorities 
 the fact that trust moneys had come to his hands, yet that was not a sort of mis- 
 conduct which enabled him (the Lord Chancellor) to charge Mr. A. with more 
 than the ordinary rate of interest." Taken from short-hand writer's note of 
 judgment. 
 
 (?) Treves v. Townshend, 1 B. C. C. 384; Rocke v. Hart, 11 Yes, 61, per Sir 
 W. Grant; Heathcote v. Hulme, 1 J. & W. 122, see 134; Attorney- General v. 
 Solly, 2 Sim. 518 ; Mousley v. Carr, 4 Beav. 53, per Lord Langdale ; Westover v. 
 Chapman, 1 Coll. 177 ; Williams v. Powell, 15 Beav. 4G1 ; Robinson v. Robinson, 
 1 De Gex, Mac. & Gor. 257. 
 
 (r) Treves v. Townshend, 1 B. C. C. 384. Sed qusere. 
 (s) Melland v. Gray, 2 Coll. 295. {t) 1 Russ. 107. 
 
 [u) Attorney-General v. Solly, 2 Simons, 518. 
 {v) Heighington v. Grant, 5 M. & Cr. 258 ; 2 Phil. 600. 
 
 (w) Jones V. Foxall, 15 Beav. 388 ; Williams v. Powell, id. 461 : Penny v. Avi- 
 son, 3 Jur. N. S. 62. 
 
 (x) Raphael v. Boehm, 11 Ves. 92 ; 13 Ves. 407, 590 ; Dornford v. Dornford, 12 
 Ves. 127 ; Brown v. Sansome, 1 M'Clel. & Younge, 427 ; Knott v. Cottee, 16 Beav. 
 77; but see Tebbs v. Carpenter, 1 Mad. 290; Attorney-General v. Solly, 2 Sm. 
 518 ; Pride v. Fooks, 2 Beav. 430 ; Wilson v. Peake, 3 Jur. N. S. 155. 
 
 1
 
 DUTIES OF TRUSTEES OF CHATTELS PERSONAL. 329 
 
 cipal, to have lent tlie money to himself, upon the same terms upon which 
 he could have lent it to others, and as often as he ought to have lent it 
 if it be principal, and as often as he ought to have received it, and lent 
 it to others, if the demand be interest, and interest upon interest."(y) 
 And Lord Erskine said he concurred in the same principle, viz. << that 
 a trustee directed to do an act from which the cestui que trust would 
 derive a particular advantage, and not performing that trust, shall be 
 charged precisely in the same manner as if he had performed it."(2) 
 
 An executor will not in general be charged with interest but from the 
 end of a year from the time of the testator's decease. " The question," 
 said Lord Thurlow, " whether an executor shall be charged with interest 
 on the assets retained in his hands, turns upon this, viz. whether the 
 fund has been so kept for any other purpose than that of discharging 
 the growing claims upon it. It frequently may be necessary for an exe- 
 cutor to keep large sums in his hands, especially in the course of the 
 first year after the decease of the testator, in which case such necessity 
 is so fully acknowledged, that, according to the constant course of the 
 court, the fund, until that time, is not considered distributable. After 
 that, if the court observes that an executor keeps money in his hands 
 without any apparent reason, but merely for the purpose of using it, then 
 it becomes negligence and a breach of trust, the consequence of which 
 is, that the court will charge the *executor with interest."(a) r^or^-\ 
 "With respect to the general question of charging executors L J 
 with interest," observed Sir A. Hart, " there are two things to be kept 
 in view, first, we are not to look so closely into the dates of a running 
 account to calculate interest upon it, as to deter respectable men from 
 undertaking the office of executor; and on the other hand we are not 
 loosely to permit any man, however respectable, to retain the money of 
 others in his hands without making it productive. An executor's duty 
 in this respect is to deal with the trust estate as a provident man would 
 deal with his own, and every provident person makes interest of his 
 money when he has got together a sum which he thinks to be worth 
 while to lay out at interest. "(6) 
 
 It will be observed that, in the preceding cases, trustees and executors 
 have been decreed to pay interest in respect only of moneys actually 
 come to hand, and improperly retained ; for when a fund has never been 
 received, but has been inexcusably left outstanding and lost, it seems 
 the court contents itself with holding the trustees liable for the princi- 
 pal, without enforcing against them the equity, that as the fund, if got 
 in, would have become productive, the trustees ought further to be 
 charged with interest, (c) 
 
 SECTION V. 
 
 OP THE DISTRIBUTION OF THE TRUST FUND. 
 
 It is incumbent upon the trustee to satisfy himself beyond doubt, 
 
 {y) Raphael v. Boehtn, 11 Ves. 107. {z) S. C. 13 Vcs. 411. 
 
 (a) Forbes v. Ross, 2 Cox, 115. {h) Flanagan v. Nolan, 1 Moll. 85. 
 
 (c) Tebbs v. Carpenter, 1 Mad. 290; and see Lowson v. Copeland, 2 B. C. C. 156.
 
 330 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 before he parts with the possession of the property, who are the parties 
 legally entitled to it. And the necessity of seeing that the trust-money 
 comes to the proper hand is obligatory, not only on trustees regularly 
 invested with the character, but to all persons having notice of the equi- 
 ties : as if A. lend a sum to B. and B. afterwards discovers that it is 
 trust-money, he cannot pay it back to A. unless A. had a power of sign- 
 ing *a receipt for it.[d) If through any misapprehension on 
 L J the part of the trustee the trust money finds its way into a chan- 
 nel not authorized by the terms of the trust, he will be held personally 
 responsible for the misapplication to the parties who can establish a bet- 
 ter claim. " I have no doubt," said Lord Redesdale upon one occasion, 
 " the executors meant to act fairly and honestly, but they were misad- 
 vised; and the court must proceed, not upon the improper advice under 
 which an executor may have acted, but upon the acts he has done. If 
 under the best advice he could procure he acts wrong, it is his mis- 
 fortune ; but public policy requires that he should be the person to 
 suflFer."(e) 
 
 This must be considered as the general rule; but nnder partictdar 
 circumstances the court might possibly hold an executor justified by 
 having acted upon the advice of counsel. Thus, a testator had executed 
 a promissory note in Switzerland for 600/., but by a counter-note exe- 
 cuted shortly after, it was declared that 400?. only was due upon valu- 
 able consideration. A Swiss court, upon proceedings taken there, had 
 awarded the payment of the whole 6001. The executor in England, 
 though by our law under the circumstances of the case but 400^. was 
 demandable, had discharged the whole amount. Lord Alvanley said, 
 " I very much wish, upon the rules of the court, I could hold the exe- 
 cutor fully justified; but when I consider his neglect in making this 
 payment of his own conjecture and to the wrong of the cestuis que trust, 
 I must hold that the master was right in charging him. He certainly 
 acted with a good intention, and imagined himself justified; but he 
 thought fit to depend upon that which a prudent executor would not 
 have relied on — this strange transaction in Switzerland. 1/ he had taken 
 advice, and been advised hy any (jentleman of the law in this coun- 
 try that he was bound to make this payment, I would not have held him 
 P^qp-T-i liable, for I will ^ not permit a testator to lay a trap for his exe- 
 L J cutor, by doing a foolish act which may mislead him."{^f\ 
 
 Every executor is taken to know the law of this country, but otherwise 
 as to foreign laws. Thus, where a legacy was given to a married woman 
 domiciled in Scotland, and before payment of the legacy the husband 
 died, and the executors of the testator paid the legacy to the wife, and 
 
 {d) Sheridan v. Joyce, 1 Ir. Eq. Rep. 115. 
 
 (e) Doyle v. Blake, 2 Sch. & Lef. 243; and see Urch v. Walker, 3 M. & C. 705, 
 706; Turner v. Maule, 3 De Gex & Sm. 497 ; Peers v. Ceeley, 15 Beav. 209. In 
 Boulton V. Beard, 3 De Gex, Mac. & Gor. 608, the fact that the trustees had acted 
 upon the advice of counsel was not in evidence, which accounts for the silence of 
 the L. J. upon this point in their judgments. 
 
 (/) Vez V. Emery, 5 Ves. 141. As to the effect of acting under advice of 
 counsel in reference to costs, see Angier v. Stannard, 3 M. & K. 566 ; Devey v. 
 Thornton, 9 Hare, 232 ; Field v. Donoughmore, 1 Dru. k War. 234 : Harper v. 
 Munday, 2 Jur. N. S. 1197.
 
 DUTIES OF TRUSTEES OF CHATTELS PERSONAL. 331 
 
 the executors of the husband sued the executors of the testator for the 
 same legacy on the ground that, by the law of Scotland where the wife 
 was domiciled, the chose in action did not survive, as by the law of Eng- 
 land, to the wife, but passed to the representatives of the husband, it 
 was held, that the executors were not bound to know the law of Scotland, 
 and as express notice of it was not proved against the executors, the 
 prior payment was declared to be valid. (^) 
 
 In cases where there exists a mere shadow of doubt as to the rights of 
 the parties interested, and it is highly improbable that any adverse claim 
 will in fact, be ever advanced, the protection of the trustee may be pro- 
 vided for by a substantial bond of indemnity. In general, however, a 
 bond of indemnity is a very unsatisfactory safeguard, for when the danger 
 arises, the obligors are often found insolvent, or their assets have been 
 distributed. And if the bond be to indemnify against a breach of trust, 
 the court shows no mercy towards a trustee who admits himself to have 
 wilfully erred by having endeavoured to arm himself against the conse- 
 quences. 
 
 A trustee cannot be expected to incur the least risk, and therefore if 
 all the equities be not perfectly clear, he should decline to act without 
 the sanction of the court, and he will be allowed all costs and expenses 
 incurred by him in an application for that purpose. (A) And as the 
 trustee is indemnified *by the decree of the court, he will appeal p^„^„^ 
 from any decision to the court above at Jiis own risA-.(i) L -^ 
 
 The proceeding may be instituted either by the trustee or the cestui 
 que trust ; but in most cases a suit is sustained rather than originated by 
 the trustee, but whether the trustee be plaintiff or defendant, he should 
 take care before an order is made, that all parties who have any color of 
 title are before the court, for if the trustee fail in his duty to point out 
 the proper parties, it might be held that the order of the court under 
 such circumstances did not indemnify him. 
 
 Where the bill is filed by a cestui que trust and it is found at the 
 hearing that upon the true construction of the instrument he has no 
 interest in the fund, yet if the point was so doubtful that the trustees 
 could not safely act without the opinion of the court, the plaintiff will 
 have his costs, as the declaration of the rights of the parties was neces- 
 sary to the administration of the trust. (7o) But the case of a plaintiff 
 filing a bill on the ground of a contingent interest which fails stands on 
 a different footing. (^) 
 
 The court, according to the old practice, could not have made a mere 
 declaratory order without consequential directions, (m) and could not 
 
 {g) Leslie v. Baillie, 2 Y. & C. Ch. Ca. 91. 
 
 (A) Talbot V. Earl of Radnor, 3 M. & K. 252 ; Goodson v. Ellisson, 3 Russ. 583 ; 
 Curleis v. Candler, 6 Mad. 123 ; Knight v. Martin, 1 R. & M. 70 ; S. C. Taml. 237 ; 
 Taylor v. Glanville, 3 Mad. 176; Angier v. Stannard, 3 M. & K. 566. And see 
 Campbell v. Home, 1 Y. & C. Ch. Ca. 664. 
 
 (i) Rowland v. Morgan, 13 Jur. 23. 
 
 (/.) Westcott V. CuUiford, 3 Hare, 274, and cases there cited ; Turner v. Framp- 
 ton, 2 Collver, 336; Boreham v. Bignall, 8 Hare, 134; Lee v. Delaue, 1 De Gex & 
 Sm. 1. ' (l) Hay v. Boweu, 5 Beav. 610. 
 
 (m) See Daniell v. Warren, 2 Y. & C. Ch. Ca. 292 ; Shewell v. Shewell, 2 Hare, 
 154; Gaskell v. Holmes, 3 Hare, 438 ; Say v. Creed, 3 Hare, 455.
 
 332 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 have administered the trust in the presence of some only of the parties 
 interested, or as to a part only of the trust estate, or as to the rights of 
 persons entitled under a will without taking preliminary accounts j but 
 now by 15 & 16 Vic. c. 86, sects. 50 & 51, the court is authorized to 
 make declaratory orders merely, as also to adjudicate on questions in the 
 presence of some only of the persons interested, and as to part only of 
 the trust estate, and without ascertaining the particulars or accounts of 
 the property touching which the questions have arisen. The opinion of 
 the court may also be now obtained upon a special case under the pro- 
 visions of Sir Geo. Turner's Act, 13 & 14 Vic. c. 35. ^ 
 
 *A not unfrequent difficulty with a trustee in the distribution 
 L ^"'^J of a trust-fund is, that the cestui que trust is a, feme covert whose 
 husband has become hankrupt or insolvent, or has assigned the wife's 
 share of the trust fund, or has deserted the wife. In the case of bank- 
 ruptcy or insolvency, it is competent to the trustee to agree with the 
 assignees, as he might have done with the husband, to divide the fund,(H) 
 and the payment of one half to the assignees, and the settlement of the 
 other half on the wife and children, is, in the absence of special circum- 
 stances, considered a reasonable apportionment. (o) As the moiety paid 
 to the assignees represents the whole of the husband's interest, the en- 
 tirety of the other moiety must be settled on the wife and children, to 
 the utter exclusion of the husband, (p) except on failure of issue. (§) It 
 would appear that in Lord Eldou's time a rule existed against giving the 
 wife the whole fund.fr) More recently in a case(s) in the Exchequer, 
 whei'e the husband was an insolvent, Baron Alderson directed a settle- 
 ment of the v;liole fund. "The situation," he said, ''of an insolvent is 
 very different from that of a hankrupt. The wife of an insolvent may 
 be in the workhouse with her children, and yet if the insolvent after- 
 wards acquires property, neither the wife nor the children will be bene- 
 fitted by it, but the whole goes to the creditors. A bankrupt, on the 
 other band, after he has obtained his certificate, is a free man. It 
 appears to me, therefore, that the insolvent's wife and children are 
 entitled to the whole fund, and if I am bound by the practice of the 
 court to take away any portion of it, I will take away a shilling." At 
 the present day, it is clear that no distinction exists between insolvency 
 and bankruptcy, and that the court will, wherever the special circum- 
 r*^7m '^^^^^^^^ warrant the step, settle *the whole on the wife and chil- 
 ■- -J dren.(<) Indeed, in every case arising in reference to the wife's 
 
 («) Ryland v. Smith, 1 M. & C. 56. 
 
 (o) Napier v. Napier, 1 Dru. & War. 407; Vaughan v. Buck, 1 Sim. N. S. 28T ; 
 Bagshaw v. Winter, 5 De Gex & Sm. 468. 
 
 {p) Lloyd V. Williams, 1 Mad. 450 ; Barker v. Lea, 6 Mad. 330 ; Whittem v. 
 Sawyer, 1 Beav. 593. 
 
 (?) Carter v. Taggart, 5 De Gex & Smale, 49 ; Gent v. Harris, 10 Hare, 383 ; 
 Bagshaw v. Winter, 5 De Gex & Sm. 408. 
 
 {r\ Dunkley v. Dunkley, 2 De Gex, Mac. & Gor. 396. 
 
 («) Brett V. Greenwell, 3 Y. & C. 230. 
 
 {t) Gardner v. Marshall, 14 Sim. 575 ; and see Re Kincaid, 1 Drew. 326 ; Wat- 
 son V. Marshall, 17 Beav. 363 ; Dunkley v. Dunkley, 2 De Gex, Mac. & Gor. 390 ; 
 Carter v. Taggart, 5 De Gex & Smale, 49 ; Gent v. Harris, 10 Hare, 383 ; and see 
 Bonner v. Bonner, 17 Beav. 86 ; Koeber v. Sturgis, 22 Beav. 588.
 
 DUTIES OF TRUSTEES OF CHATTELS PERSONAL. 333 
 
 equity to a settlement, the court exercises a discretion witli reference to 
 the particular circumstances, namely, the conduct of the parties,(if) the 
 wife's means of livelihood, (r) the settlement, if any, previously made 
 upon her,(?<5) and the sums before received by the husband in respect of 
 the wife's fortune. (,c) The trustee should of course endeavour to act as 
 the court itself would direct. 
 
 The wife's claim in equity to a settlement prevails even against the 
 assignees of the husband for valuable consideration, except where the 
 wife is tenant for life only, when the wife has no equity against the 
 purchaser. (^) 
 
 A case of perplexity to trustees which, until recent decisions had 
 settled the law, arose not unfrequently, was as follows: — A fund was 
 settled on A. for life, and after his decease on B., a married woman, 
 absolutely; and, in order to reduce the wife's diose in action into posses- 
 sion, the husband proposed to purchase the prior life-interest, and have 
 it assigned to himself or his wife. In such case, it was asked, were the 
 trustees justified in considering the fund as reduced into possession, and 
 payable to the husband, or could the wife claim by survivorship, on the 
 ground that her interest, notwithstanding the assignment of the life- 
 estate, must still be regarded in equity as of a reversionary nature, and 
 so incapable of reduction into possession ? If the assignment was made 
 to the husband, it might be said, that, as the life-interest was possessed 
 by him in his own right, and the reversionary interest in right of his icife, 
 the two could not coalesce ; and if the assignment was made to the wife 
 so that the husband *would have both interests in the same right, r^gyj^-i 
 it might be said that the feme on the coverture ceasing might L J 
 disclaim the accession of interest that caused the merger, and that, as the 
 transaction on the face of it was a mere contrivance of the parties to 
 defeat the right of the wife, she might hold the trustees answerable for 
 the consequences. 
 
 In a case where 10,000?. stock was settled in this manner, and it was 
 proposed that the husband should purchase the life-interest for 3000/., 
 and take an assignment of it to the wife, the opinion of the late Mr. 
 Jacob was as follows : — " I understand that Mrs. B. has a vested inter- 
 est in the 10,000/., subject only to the life-interest of A. her father; 
 and if so, A. can assign his life-interest to Mrs. B., and the effect will 
 be to convert her interest into an immediate right to the fund in posses- 
 sion. And when a married woman has such an immediate right, the 
 trustees in general may safely transfer to the husband. ]3ut I do not 
 think it safe for the trustees to do this of their own authority when the 
 interest was originally reversionary, and has by an assignment of this 
 description been converted into a present interest. If the wife survived 
 her husband, she might contend (and possibly with success) that the 
 assignment was a contrivance to defeat her right by survivorship, and I 
 
 (m) Gilchrist v. Cator, 1 De Gex & Sm. 188. 
 
 {v) Bagshaw v. Winter, 5 De Gex & Sm. 467 ; Ex parte Pugb, 1 Drew. 202. 
 
 {w) Scott V. Spashett, 3 Mac. & Gor. 599. 
 
 {x) Gardner v. Marshall, 14 Sim. 575; Vaughan v. Buck. 1 Sim. N. S. 287. 
 
 (?/) Tiild V. Lister, 10 Hare, 140. 
 
 February, 1857.— 22
 
 33-4 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 do not think it quite clear that the court would hold her bound by it. 
 But after the assignment has been made, Mr. and Mrs. B. may file an 
 amicable bill against A. and the trustees praying a transfer to Mr. B., 
 and I think there would be very little doubt of the court making the 
 decree for a transfer as prayed, upon Mrs. B. being examined in court, 
 and consenting, and upon an affidavit of their being no settlement affect- 
 ing this fund. And I think that the decree of the court would fully in- 
 demnify the trustees in making the transfer." A bill was accordingly 
 filed by the husband and wife against A. and the trustees : and on the 
 wife beino- examined in court, and waiving a settlement, the trustees 
 were ordered to sell out the stock, pay the costs, and hand over the bal- 
 ance to the husband. (2) 
 
 A similar order was made by the vice-chancellor of ^England 
 L "^'-"J iu several subsequent cases, (a) and Lord Cottenham, on being 
 applied to under one of the orders, seems to have assented to the doc- 
 trine. (&) But in a case before the master of the rolls, the question was 
 considered to involve too much difficulty to be disposed of on petition, (c) 
 and the case of Weittle v. Henning,(fZ) before Lord Cottenham, has now 
 decided that a reversionary chose in action of the wife cannot by means 
 of this machinery be reduced into possession so as to be made dis- 
 posable. 
 
 When the trustee is satisfied as to the parties rightfully entitled, he 
 may pay the money either to the parties themselves, or to any agent em- 
 powered by them to receive it ; and the authority need not be by power 
 of attorney, or by deed, or even in tcriting. The trustee is safe if he 
 can prove the authority, however communicated. But a trustee would 
 not be acting J) rude7if/i/ if he parted with the fund to an agent without 
 some document producible at any moment by which he could establish 
 the fact of the agency. 
 
 The trustee must look well to the genuineness of the authority, for if 
 he pay a wrong party it will be at his own peril. Thus where A., pos- 
 sessed of 1000/. million bank stock, employed B., a broker, to receive 
 the dividends for her, and B. forged a letter of attorney authorizing him 
 to sell the stock, and a sale was effected accordingly, it was decreed by 
 Lord Xorthington that the company was bound to make good the loss; 
 for "a trustee," he said, "whether a private person or body corporate, 
 must see to the reality of the authority empowering him to dispose of the 
 trust-money ; and if the transfer be made without the authority of the 
 owner, the act is a nullity, and in consideration of law and equity the 
 rights remain as before "(e) 
 
 [*373] 
 
 Where an infant cestui que trust represented himself to be *of 
 age, and induced the trustee to pay him, it was held that as the 
 
 iz) Wilson V. Oldham, V. C. March 5, 1841, MS. 
 
 (a) Creed v. Perry, 14 Sim. 592 ; Bean v. Sykes, ib. 593 ; Lachton v. Adams, 
 ib. 594 ; Hall v. Hugonin, ib. 595; Bishop v. Colebrook, 16 Sim. 39. 
 
 (b) Lachton v. Adams, 14 Sim. 594. 
 
 (c) Siory V. Tonge, 7 Beav. 91 ; and see Box v. Box, 2 Conn. & Laws, 605. 
 {d) 2 Phill. 731. 
 
 (e) Ashby v. Blackwell, 2 Ed. 299 ; Sloman v. Bank of England, 14 Sim. 475 ; 
 and see Harrison v. Pryse, Barn. 324; Ex parte Joliffe, 8 Beav. 168.
 
 DUTIES OF TRUSTEES OF CHATTELS PERSONAL. 335 
 
 infant was old enough to commit a fraud, the trustee could not be liable 
 to him over again when he came of age.(/) 
 
 It is the practice of the court in administration suits, where a debt is 
 owing to a firm jointly, to pay the amount to the surviving partners with- 
 out the concurrence of the representatives of the deceased partners, and 
 i^ prima facie'' a trustee would be justified in doing the same.(^) 
 
 If a trustee or executor has made an overpayment to a cestui que trust 
 or legatee, he has a right to recoup himself out of any other interest of 
 that cestui que trust or legatee, and the court will even make an order on 
 such cestui que trust or legatee, personally to repay the trustee or exe- 
 cutor,(/4) but not after a lapse of thirty years. (i) 
 
 On the final adjustment of the trust accounts it is usual for the trus- 
 tee, on handing over the balance to the parties entitled, to require from 
 them an acknowledgment that all claims and demands have been set- 
 tled, (/c) It is reasonable, that when the trustee parts with the whole 
 fund, and so denudes himself of the means of defence, he should be 
 placed by the party receiving the benefit in the utmost security against 
 future litigation. In practice it is usual to require a release under seal, 
 for an acquittance of this kind maj/ be opened by the cestui que trust on 
 showing fraud, concealment or. mistake; hnt prima facie it is a simple 
 and valid defence, and throws on the releasor the onus of displacing it. 
 In strict right, however, a trustee in the absence of special circum- 
 stances cannot insist upon a release under seal. Thus, in Chadwick v. 
 Heatley,(/) a residuary legatee who had become entitled in possession 
 called for the transfer of a sum of stock representing the residue. The 
 trustee insisted on a general release in respect of the testator's estate, 
 and the residuary legatee offered only a receipt for the particular sum. 
 A bill was filed by the *claimant against the trustee, and the Vice- r^;q74^-| 
 Chancellor K. Bruce held that in strictness a release by deed could L J 
 not be demanded, though he thought it was not out of the ordinary 
 course of business or unreasonable ; that the plaintiff's refusal to execute 
 a deed was justifiable, but that he was bound to have given an acquit- 
 tance in writing in full of all demands. It seems also to have been de- 
 cided in a case at the rolls,(m) that a trustee cannot as a matter of right 
 insist on a release under seal. 
 
 In King v. Mullius,(i() a sum of 174?. had been placed in the hands 
 of a trustee upon trust by a parol declaration for ^Sarah for life, and ou 
 her death to pay her funeral expenses, and subject thereto to divide the 
 fund between John and William. The costs of the suit depended on 
 the question whether the trustee ought, as required, to have transferred 
 
 (/) Overton v. Banister, 3 Hare, 503. 
 
 (ff) Philips V. Philips, 3 Hare, 289. 
 
 (A) Livesey v. Livesey, 3 Russ. 287; Fordham v. Wallis, 10 Hare, 217; Dibbs 
 V. Goren, 11 Beav. 483. 
 
 (i) Bate v. Hooper, 5 ])e G. M. & G. 338. 
 
 (A:) See v. Osborne, 6 Ves. 455 ; but the release here spoken of was ap- 
 parently a conveyance. 
 
 (l) 2 Coll. 137 ; Warter v. Anderson, 11 Hare, 301. 
 
 (m) Fulton v. Giliuour, 15 February, 1845, Hill on Trustees, 604. 
 (w) Vice-Chancellor Kindersley, 21st December, 1852, iMS.; I Dr( 
 
 •ew. 308.
 
 336 LEAVIX ON THE LAW OF TRUSTS, ETC. 
 
 the sums on the joint receipt of Sarah, John, and William, or whether 
 he was rio'ht in refusing, unless they executed a release under seal. The 
 vice-chancellor decided that the trustee was entitled to a release on the 
 ground, first, that the trust was by parol, and secondly, that the time of 
 payment, according to the tenor of the deed, was anticipated, as the 
 tenant for life was still living. These reasons cannot be regarded as 
 satisfactory. The circumstance that the trust was by parol, and there- 
 fore obscure, might have been ground for demanding an indemnity; but 
 seems to afford no reason for requiring a release under seal as distin- 
 guished from a simple receipt or acquittance in writing. Neither does 
 the anticipation of the time appear to be material, for Sarah, John, and 
 William were admitted to be the on] j cesfu is que trust, and their concur- 
 rence in the receipt was equivalent to a reduction into possession. 
 
 The trust fund is not unfrequently transferred from the trustees of an 
 old settlement to the trustees of some new settlement, and the trustees 
 of the old settlement insist on a general release before they will part with 
 the fund, while, on the other hand, the trustees of the new feel a reluc- 
 tance to *give more than a simple receipt. It is believed that 
 L "^ J the requisition of the trustees of the old settlement has been 
 generally complied with ; but of course the trustees of the new cannot 
 be called upon to enter into any covenant of indemnity. 
 
 As the party to benefit by a deed is, in general, the one to prepare it, 
 the release will be drawn by the solicitor of the trustee. Another rea- 
 son would be that the trustee has the necessary documents in his posses- 
 sion. The expense must, of course, be paid out of the trust fund. 
 
 When a trustee pays money under the direction of the court, he is 
 indemnified by the order itself, and is not entitled to any release from 
 the parties. (d) It would be impossible to hold a trustee answerable for 
 an act not of himself but of the court. It is the duty, however, of the 
 trustee to fully inform the court of all the material facts within his 
 knowledge, and if he improperly withheld them he might be made re- 
 sponsible for the deception practised on the court. 
 
 Now by the 10th & 11th Vict. c. 96, entitled " An act for better 
 securing trust funds and for the relief of trustees,^'(|>) after reciting that 
 it is expedient to provide means for better securing trust funds, and for 
 relieving trustees from the responsibility of administering trust funds in 
 cases where they are desirous of being so relieved ; it is enacted : 
 
 I. That all trustees, executors, administrators, or other persons having 
 ill their hands any moneys belonging to any trxist whatever,U[\ or the 
 
 (o) See Gillespie v. Alexander, 3 Russ. 137 ; Underwood v. Hatton, 5 Beav. 39; 
 Fai-rell v. Smith, 2 B. & B. 33T ; Fletcher v. Stevenson, 3 Hare, 3T0 ; Knatcbbull 
 V. Fearnhead, 3 M. & Cr. 126 ; David v. Frowd, 1 M. & K. 209 ; Sawyer v. Birch- 
 more, 1 Keen, 401, &c. 
 
 [p) See an Essay on this act by F. H. Appach, where all the cases up to the 
 date of that of publication will be found carefully collected. 
 
 (?) The owner of an estate charged with a sum in favour of another is not a 
 trustee of that sum within the act, for he has not the moneys in his hands ; and if 
 it were held otherwise, the money might be paid into court, and the incumbrancer 
 would have to bear the costs of getting it out; whereas the nature of the charge 
 is, that the beneficiary is entitled to have it raised out of the estate, together with 
 the costs of raising it: Re Bucklev's Trust, 17 Beav. 110.
 
 DUTIES OF TRUSTEES OF CHATTELS PERSONAL. .337 
 
 major part of them shall be at *lihcrti/ ,{^r) on filing an affidavit p^o-^.-. 
 shortly describing the instrument creating the trust, according to L J 
 
 the best of their knowledge and belief,(s) to pay the same with the 
 privity of the accountant-general of the Iligh Court of Chancery into 
 the bank of England, (^) to the account of such accountant-general in the 
 matter of the particular trust,{ii) (describing the same by the r+g— 1 
 *names of the parties as accurately as may be for the purpose of L J 
 distinguishing it,) in trust to attend the orders of the court, and that all 
 trustees or other persons having any annuities or stocks standing in their 
 
 But it has been thought that where there is a power of sale without a power of 
 signing receipts the purchaser may talce the estate under the power of sale, and 
 pay the money into court under 'the Trustee Relief Act; Cox v. Cox, 1 Kay <fe 
 Johns. 251. 
 
 A sum of money was payable by instalments, and the trustee, after receiving 
 one instalment, paid it into court, and on a petition by the cesltti que trust, the 
 court not only administered the instalment paid in, but also gave directions to the 
 trustee as to the future instalments ; and said the order would give ample indem- 
 nity to the trustee ; Re Wright's Settlement, 1 Sm. & Gif. App. V. The court had, 
 in fact, no jurisdiction as to the instalments payable infuturo, and the order would 
 be an indemnity in this sense only, that the trustee would be acting in a way 
 which had received the sanction of the court, though extra-judicially. 
 
 Where money in vrhich a lunatic is interested has been paid into court, the lord 
 chancellor has jurisdiction under the act to order re-payment to the guardian? of 
 the part of the expenses incurred by them for the support of the lunatic ; Re Up- 
 fuU's Trust, 3 Mac. & Gor. 281. 
 
 (r) Liberty only is given to trustees to transfer the fund into court, and bills or 
 claims for the administration of the trust may be filed by or against trustees, or 
 cestuis que trust as before, at any time previous to the transfer into court ; Thorp 
 v. Thorp, 1 Kay & Johns. 438. 
 
 When the fund has been actually transferred into court under the Trustee Re- 
 lief Act, the court's jurisdiction attaches, and any proceeding must be taken un- 
 der the act, and no bill or claim can be filed with reference to the fund transfer- 
 red, though, as to any portion deducted for costs, or other part retained by the 
 trustees, or for which they are accountable, the ordinary remedies are preserved to 
 the cestuis que trust; Goode v. West, 9 Hare, 378 ; Attorney-General v. Alford, 2 
 Sm. & Gif. 488. 
 
 (s) The affidavit must not go into the whole history of the trust, so as to show 
 upon the accounts how the particular sum arose, or the trustee will be deprived 
 of his costs; In re Waring, 16 Jur. 652. All the trustees should properly join in 
 the affidavit, as all may have some information to contribute, but under particular 
 circumstances the court will order the accountant-general to receive the money 
 
 on the affidavit of one of several co-trustees ; v. , V. C. Wood, 1 Jur. 
 
 N. S. 974. 
 
 (t) The payment may of course be made without an order of the court : In re 
 Biggs, 11 Beav. 27. And when an executor, after paying money into court, dis- 
 covered debts of the testator, he was allowed to have the money paid back to him 
 out of court, on his undertaking to apply it properly. Re Tournay, 3 De Gex & 
 Sm. 677. 
 
 (w) The money must not be paid in by an executor to an account, '-the trusts 
 of the testator's will," for this implies not a particular trust, but a general admin- 
 istration of the testator's estate. The executor must take on himself the respon- 
 sibility of severing the fund from the testator's assets, and appropriating it to the 
 particular purpose, and then pay it in to the limited account. If it has already 
 been paid in to an account too general for the court to deal with, it may, on a 
 separate application, be carried over to the right account, and the court will then 
 proceed to adjudicate upon the rights of the parties ; Re Joseph's Will, 11 Beav. 
 625 ; Re Everett, 12 Beav. 485 ; Re Wright's Will, 15 Beav. 367. As to the pro- 
 per heading of the account, see further In re Jcrvoise, 12 Beav. 209 ; Re Tillslone's 
 Trust, 9 Hare, Append. LIX. ; and see Appach on the Acts, p. 44.
 
 338 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 namcs(^') in the books of the governor and company of the bank of Eng- 
 land, of the East India Company, or South Sea Company, or any govern- 
 ment or parliamentary securities standing in their names, or in the names 
 of any deceased persons of whom they shall be personal representatives, 
 upon any trust whatever, or the major part of them shall be at liberty 
 to transfer or deposit such stocks or securities into or in the name of the 
 said accountant-general, with his privity in the matter of the particular 
 trust (describing the same as aforesaid,) in trust to attend the orders of 
 the said court, (w) and in every such case the receipt of one of the cashiers 
 of the said bank for the money so paid, or in the case of stocks or securi- 
 ties the certificate of the proper officer of the transfer or deposit of such 
 stocks or securities, shall be a sufficient discharge to such trustees or other 
 persons for the money so paid, or the stocks or securities so tranferredor 
 deposited, (x) 
 
 II. That svch orders as shall seem Jit shall from time to time be made 
 by the High Court of Chancery in respect of the trust moneys, stocks, or 
 securities, so paid in, transferred, and deposited as aforesaid; and for the 
 investment and payment of any *such moneys, or of any dividends 
 L -I or interest on any such stocks or securities, and for the transfer and 
 delivery out of any such stocks and securities, and for the administration 
 of any such trusts generally, upon a petitionijA to be presented in a 
 summary way to the lord chancellor or the master of the rolls without 
 bill by such party or parties as to the court shall appear to be competent 
 and necessary in that behalf, and service of such petition shall be made 
 
 (y) Where stock is standing in the names of deceased and surviving trustees, 
 the survivor may transfer into court under the act ; In re Parry, 6 Hare, 306. 
 
 {w) Where the court is not satisfied as to the facts by affidavit, it will, before 
 making an order, direct an inquiry ; Re Wood's Trust, 15 Sim. 469 ; and see Re 
 Sharpe's Trust, 15 Sim. 470. 
 
 (x) The payment into court is a discharge only as to the money paid in, and 
 leaves the trustee liable to a suit in respect of the costs deducted by him, or any 
 other moneys that might be recovered upon the footing of the trust ; see Goode 
 V. West, 9 Hare, 378 ; Attorney-General v. Alford, 2 Sm. & Gif. 488 ; Thorp v. 
 Thorp, 1 Kay k Johns. 438. 
 
 {y) The application must be made by petition, and cannot be made upon mo- 
 tion ; In re Masselin's Will, 15 Jur. 1073 ; or upon a summons at chambers. But 
 when an order has been once made upon a petition in compliance with the act, so 
 as to found the jurisdiction, any further proceeding may be at chambers ; Re 
 Hodges, 4 De Gex, Mac. & Gor. 491. 
 
 The trustees themselves are competent to present the petition, but they are not 
 the proper persons, and the court will not allow them more than respondents' 
 costs ; Re Cazneau's Legacy, 2 Kay & J. 249. 
 
 It was once held that where the fund had been transferred into court, there was 
 still no such suit or matter actually pending as to dispense with the consent of 
 the charity commissioners to an application on behalf of a charity ; Re Mark- 
 well's Legacy, 17 Beav. 618. But afterwards it was ruled by the Court of Appeal 
 that in such a case there was a matter pending within the meaning of the Chari- 
 table Trusts Act, 1853 ; Re Lister's Hospital, 6 De G. M. & G. 184. 
 
 The petition should set out the material statements of the affidavit under which 
 the money is paid in, as the affidavit is regarded as a declaration of the trust to 
 which the attention of the court is to be called ; Re Levett's Trust, 5 De Gex k 
 Sm. 619; Re Flack's Settlement, 10 Hare, Append. XXX. But the petition must 
 not set out the affidavit in extenso, or at a needless length ; Re Courtois, 17 Jur. 
 852. 10 Hare, Append. LXIV. 
 
 A claimant may proceed in forma pauperis under the act; Re Money, 13 Beav.
 
 DUTIES OF TRUSTEES OF CHATTELS PERSONAL. 339 
 
 upon such person or persons as the court shall see fit and direct ; and 
 every order made upon any such petition shall have the same authority 
 and effect, and shall be enforced, and subject to rehearing and appeal, 
 in the same manner as if the same had been made in a suit regularly 
 instituted in the court; and if it shall appear that any such trust funds 
 cannot be safely distributed without //ie institution of one or more suit or 
 suits the lord chancellor or master- of the rolls may direct any such suit 
 or suits to be instituted. (.?) 
 
 *The following general orders relative to this act have .since, r:jcq7QT 
 in pursuance of the power given by the act, been issued by the L J 
 court. 
 
 1. Any trustee desiring to pay money or transfer stock or securities 
 into the name of the accountant-general of the Court of Chancery under 
 the said act, is to file an affidavit entitled in the matter of the act and of 
 the trust, and setting forth — 
 
 1. His own name and address. 
 
 2. The place where he is to be served with any petition or any notice 
 
 of any proceeding or order of the court relating to the trust 
 fund. 
 
 3. The amount of stock, securities, or money which he proposes to 
 
 deposit, or to transfer, or to pay into court to the credit of the 
 trust. 
 
 4. A short description of the trust, and of the instrument creating it. 
 
 5. The names of the parties interested in or entitled to the fund, to 
 
 the best of the knowledge and belief of the trustee. 
 
 6. The submission of the trustee to answer all such inquiries relating 
 
 to the application of the stocks, securities, or money transferred, 
 deposited, or paid in, under the act, as the court may think 
 proper to make or direct. 
 
 2. The accountant-general, on production of an office *copy of j-^oda-i 
 the affidavit, is to give the necessary directions for transfer, de- •- J 
 posit, or payment, and to place the stock, securities, or money, to the 
 account of the particular trust, and such transfer, deposit, or payment is 
 to be certified in the usual manner. 
 
 (z) The court under this act has ample jurisdiction as upon a bill filed, and 
 may therefore declare the validity or invalidity of a deed, without directing a suit, 
 if the court in the exercise of its discretion do not think a suit necessary; Lewis 
 V. Hillman, 3 H. L. C. 607. Where trustees of a marriage settlement had trans- 
 ferred the fund into court, and a petition was presented by a person claiming ad- 
 versely to the settlement, A^ice-Chancellor Wood disposed of the case upon the 
 petition, no party having objected ; but before the lords justices, the respondent 
 not consenting, the petition was ordered to stand over that a bill might be filed ; 
 Re Fozard's Trust, 1 Kay & Johns. 233, 24 Law Jour. 441, Ch. In another pre- 
 vious case, Vice-Chancellor Wood had also disposed of the matter on petition, 
 and said that if there were creditors or other unascertained claims, a suit might 
 be necessary ; but that otherwise the court had jurisdiction as in a suit, and might 
 direct an issue to try a question of sanity or the like ; Re Allen's Will, Kay's Rep. 
 App. LL; and see In re Bloye's Trust, 2 Hall & Tw. 140 ; 1 Mac. & Gor. 488 ; Ex 
 parte Stuteley, 1 De Gex & Sm. 703. 
 
 The court directs a suit for its own satisfaction only, and will not authorize the 
 petitioner to file a bill because it may be the more convenient course for making 
 out his title ; Re Harris's Trust, 18 Jur. 721.
 
 340 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 3. The trustee having made the payment, transfer, or deposit, is forth- 
 with to give notice thereof to the several persons named in his affidavit 
 as interested in or entitled to the fund. 
 
 4. Such persons or any of them, or the trustee, may apply by petition, 
 as occasion may require, respecting the investment, payment out, or dis- 
 tribution of the fund, or of the dividends or interest thereof. 
 
 5. The trustee is to be served with notice of any application made to 
 the court respecting the fund, or the dividends or interest thereof, by any 
 party interested therein or entitled thereto. (a) 
 
 *6. The parties interested in or entitled to the fund, are to be 
 L '^^■^J served with notice of any application made to the court by the 
 trustees respecting the fund in court, or the interest or dividends 
 thereof, (ft) 
 
 7. No petition is to be set down to be heard, until the petitioner has 
 
 (a) If the trustee try to avoid service, the court, on being satisfied of the fact, 
 will make the order without service; Ex parte Boughatn, 16 Jur. 325. 
 
 The trustee who is served with the petition is prima facie entitled to his costs ; 
 Re Erskine's Trust, 1 Kay & Johns. 302 ; Croyden's Trust, 14 Jur. 54. But where 
 the trustee has paid in the fund abusively, as in order to evade a bill about to be 
 filed against him, he will have no costs ; Re Waring, 16 Jur. 652 ; and see Re 
 Fagg's Trust, 19 L. J. 175. And where he has transferred the fund into court 
 without suflBcient reason, though he may be allowed the costs of the transfer, he 
 will not be allowed the costs of appearing on the petition ; In re Covington, 1 Jur. 
 N. S. 1157; Ex parte Hemming, 2 Jur. N. S. 1186; and see Croyden's Trust, 14 
 Jur. 54. 
 
 If the person who pays in is the personal representative of a testator whose will 
 creates the difficulty, the executor must take his costs of paying in the fund out 
 of the testator's estate, but the subsequent costs come out of the fund ; Re Caw- 
 thorne, 12 Beav. 56. Secus, however, if the trust fund has been severed from the 
 testator's estate, and is paid in by a trustee and not by the executor; Re Lori- 
 mer, 12 Beav. 521 ; Ex parte Lucas, V. C. Bruce, 6 July, 1849. And the court 
 cannot direct the costs to be paid out of another fund also paid in by the trustee, 
 but standing to a different account, though it may form part of the testator's re- 
 siduary estate, and therefore he, per se, liable to costs; Re Hodgson, 18 Jur. 786; 
 and of course not out of the testator's residuary estate, where it has not been paid 
 in; Re Bartholomew's Trust, 13 Jur. 380 and see Re Sharpe's Trusts, 15 Sim. 470; 
 Re Feltham's Trusts, 1 Kay & Johns. 534 ; though where five-sixteenths of a fund 
 paid into court had elapsed, the court threw the whole costs on the lapsed shares 
 as constituting part of the residue; Ham's Trust, 2 Sim. N. S. 106. And if a 
 trustee deduct his costs before paying in the fund, the court has no jurisdiction as 
 to the sum deducted; In re Bloye's Trust, 1 Mac. & Gor. 504; 2 Hall & Tw. 153. 
 Whether on a petition by tenant for life for payment of the dividends, the costs 
 come out of the corpus or out of the income, is a point on which the practice in 
 the courts of different judges has much varied. In favour of payment out oi cor- 
 pus, the following cases may be cited : Re Ross, 1 Sim. N. S. 196, V. C. Cran- 
 worth ; Re Field's Trusts, 16 Beav. 146, M. R. Sir J. Romilly ; Re Staple's Trust, 
 13 Jur. 273, V. C. E.; Re Butler's Trust, 16 Jur. 32, M. R, Sir J. Romilly ; and in 
 support of the contrary view. Ex parte Fletcher, 12 Jur. 619 ; 17 L. J. 169 ; and 
 Ex parte Peart, 12 Jur. 620 ; 17 L. J. 168, V. C. Knight Bruce; Re Lorimer, 12 
 Beav. 521, Lord Langdale ; Bangley's Trust, 16 Jur. 682, and Re Ingram, 18 Jur. 
 811, y. C. Kindersley ; Re Woodburu, 5 Weekly Rep. 649, M. R. 423 ; in which 
 case it was decided by the full Court of Appeal (notwithstanding the contrary 
 opinion previously entertained, see 3 K. & J. 41), that the court has jurisdiction 
 nnder the Trustee Relief Act to make the trustee pay costs. And see Re Jone.s, 
 3 Drew. 679. ^ 
 
 {h) If a person not appearing by the affidavit to have an interest, but who made 
 a claim, be served with the petition, and disclaim at the bar, he will not be allowed 
 nis costs; Re Parry's Trust, 12 Jur. 615.
 
 OF TRUSTEES OF RENEWABLE LEASEHOLDS. 34I 
 
 first named a place where he may be served with any petition or notice 
 of any proceeding or order of the court relating to the trust fund. 
 
 8. Petitions presented and affidavits filed under the said act, are to be 
 entitled in the matter of the said act (10 & 11 Vict. c. 96,) and in the 
 matter of the particular trust. 
 
 The 10 and 11 Vict. c. 96, did not enable the major part of trustees 
 to pay in or transfer a fund where the other trustees had a legal control 
 over the fund and would not concur. Accordingly, by 12 and 18 Vict. 
 c. 74, it was enacted, that where moneys, annuities, stocks, or securities 
 were vested in persons as trustees, executors, administrators, or other- 
 wise, and the major part of them were desirous of transferring the funds 
 into court, under the Trustee's Relief At, the court on a petition pre- 
 sented under the said act for that purpose, might direct the transfer by 
 the major part, without the concurrence of the rest, and might make an 
 order on the necessary parties to permit such a transfer. 
 
 By an order of 7th May, 1852, it was directed, that where the affida- 
 vit on which the money is paid in did not state it to be unnecessary to 
 invest the money, the accountant-general should invest it in three per 
 cent, bank annuities. 
 
 *By 18 and 19 Vict. c. 12-4, s. 22, any trustee or other person r^qo9-i 
 having stock or money in his hands for a charity may, by an L "J 
 order of the board of charity commissioners, transfer the stock or pay 
 the money to the official trustees of charitable funds, and such payment 
 or transfer will be an indemnity to the person paying or transferring. 
 
 *CHAPTER XIV. [*383] 
 
 THE DUTIES OF TRUSTEES OF RENEWABLE LEASEUOLDS. 
 
 Upon this head we shall first examine the preliminary question, in 
 what cases the obligation to renew is imposed by the settlement. We 
 shall then proceed to inquire in what manner the trustees are to levy the 
 fines payable upon the renewals. 
 
 I. In what cases the obligation to renew is imposed by the settlement. 
 
 It might naturally be considered, that, from the very circumstance of 
 the leaseholds being of a renewable character, a settlement of them to 
 several persons in succession would ^:>er se imply a right in the remainder- 
 man to call upon the tenant for life to contribute to the fine;(a) and 
 indeed Lord Thurlow, in the instance of a lease which had not previously 
 been treated as renewable, observed, ''The cases in which the nature 0/ 
 the estate or the will of the testator compels a renewal, appear not to apply 
 to the present: where there is 710 such custom, or direction, it is in the dis- 
 cretion of the tenant for life to renew or not. '76) However, it seems to 
 
 (a) See White v. White, 4 Ves. 32. 
 
 (i) Nightingale v. Lawson, 1 B. C. C. 443.
 
 342 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 be now established generally, that, in a devise of renewable leaseholds 
 without the interposition of a trustee, the remainderman cannot oblige 
 the tenant for life to contribute to the fine.(c') And so it was determined 
 even where the devise was expressly made, "subject to the payment of 
 aWJines, and as they became due yearly *and for every year."((Z) 
 L ^""^J But as the interest given is in its nature capable of renewal, the 
 court says, " If the tenant for life do renew, he shall not by converting 
 the new acquisition to his own use derive an unconscientious benefit out 
 of the estate,"(e) but, on the remainderman's contributing to the fine, 
 shall be regarded as a trustee, and shall hold the renewed interest upon 
 the trusts of the settlement.^/) 
 
 Next, will the interposition of a trustee sufficiently indicate an inten- 
 tion of obliging the tenant for life to renew ? " In a devise to trustees," 
 said Lord Hardwicke, ''if cestui que trust for life be one of the lives, I 
 should doubt whether such cestui que trust could be compellable to con- 
 tribute; but here all these lives were strangers; the intent of the testator 
 certainljj vkis, that the lease should continue, and he kept on foot, and 
 something must he done for a renexocd, though nothing is m,entioned."[g) 
 Lord Alvanley on one occasion alluded to the point, but said he was not 
 called upon to decide it.(7i) In a late case where the devise was to trus- 
 tees upon trust to permit one to receive the rents for life, with remain- 
 ders over, "subject to the payment of the rents and performance of the 
 covenants reserved and contained, or to he reserved and contained, in 
 the present or future leases, whereby such premises were or should he 
 held, and also all taxes, fines, and expenses attending the premises," it 
 was held that the obligation of renewing the lease was imposed by the 
 will.(i) In Lock v. LockfA;) a testator had devised a college lease of 
 twenty-one years to his wife for life, remainder to her son, she paying 
 lOZ. per annum to the sou during her life ; and it was held, that, as the 
 testator contemplated the continuance of the lease during the life of the 
 wife, she was bound to renew. It has now been decided by Lord Plun- 
 kett, in Ireland, that a settlement with the mere interposition of a trustee 
 does not impose an obligation to renew. (A 
 
 r*^8'i"l *Where leaseholds of this kind are made the suhjecf of a mar- 
 L -1 riage settlement, it may be argued, that, as all the parties who 
 have any interest given them are purchasers, the enjoyment of the 
 
 (c) White v. White, 4 Yes. 32, per Lord Alvanley; S. C. 9 Yes. 561, per Lord 
 Eldon ; Stone v. Theed, 2 B. C. C. 248, per Lord Thurlow. 
 
 {d) Capel V. "Wood, 4 Russ. 500. 
 
 h) Stone v. Theed, 2 B. C. C. 248, per Lord Thurlow. 
 
 (/) Nightingale v. Lawson, 1 B. C. C. 440 ; Stone v. Theed, 2 B. C. C. 248, 
 per Lord Thurlow; Coppin v. Fernyhough, 2 B. C. C. 291 ; Fitzroy v. Howard, 3 
 Russ. 225. 
 
 {g) Yerney v. Yerney, 1 Yes. 429. [h) White v. White, 4 Yes. 33. 
 
 (i) Hulkes v. Barrow, Taml. 264. (k) 2 Yern. 666. 
 
 {I) O'Ferrall v. O'Ferrall, Lloyd k Goold, Rep. temp. Plunket, TD. In Trench 
 V. St. George, 1 Dru. & W^alsh, 417, before the same judge, it is not clear whether 
 his lordship did or not consider the will as creating an obligation to renew, 
 but it would rather appear that he did. The remainderman was held not liable to 
 contribute towards the renewal fines in favour of the tenant for life, except as re- 
 spected certain fines paid subsequently to 1819, as to which the remainderman 
 submitted to contribute. See pp. 454-456.
 
 OF TRUSTEES OF RENEWABLE LEASEHOLDS. 343 
 
 tenant for life should be consistent with that of the other subsequent 
 takers. 
 
 In Lawrence v. Maggs,(wi) the case of a marriage settlement with 
 trustees interposed, but without any mention of renewals, Lord North- 
 ington said, " The husband renewed twice ; first, when he put in his own 
 life, which was of no benefit to those in the settlement who were to take 
 in remainder after his death. He renewed a second time, and put in 
 his wife's life, and this he does voluntarily and loitliout there being any 
 direction for it in the settlement. The renewing the lease with any other 
 life than that of the tenant for life is for the benefit of the remainderman, 
 and he is to be deemed a creditor, keeping down the interest during his 
 enjoyment." The plain implication from which remark is, that in his 
 lordship's opinion the tenant for life was considered not bound to renew. 
 
 There appears to be no other authority upon the subject but what may 
 be collected from Sir W. Grant's observations in Lord Montfort v. Lord 
 Cadogan. " The proposition," he said, " that under the marriage settle- 
 ment it was the duty of the trustees to renew does not admit a question. 
 The lease being made the subject of a settlement, it was clearly meant 
 that it should be kept on foot by renewals. The trustees were to apply 
 so much of the rents and profits as would be necessary for that purpose. 
 They are not in so many words directed to renew, but the means being 
 given, and the purpose expressed, there is no doubt that they were to 
 apply those means to that purpose. (h) 
 
 But, if renewable leaseholds be articled to be settled on the r^ggg-i 
 *husband for life, remainder to the wife for life, remainder to L J 
 the children, the court will, in executing the settlement, insert the 
 proper directions for renewals. This, it seems, was directly determined 
 in Graham v. Lord Londonderry ;(o) and the case of Lawrence v. Maggs, 
 before Lord Northington, was cited in Pickering v. Vowles, before Lord 
 Thurlow,(p) as establishing the same doctrine; but it appears by the 
 report taken from Lord Northington's own MS. that the bar were mis- 
 taken in this.(^) However, Lord Thurlow himself seems to have enter- 
 tained that opinion, for, in Pickering v. Yowles, where the property was 
 articled to be settled, but there were no directions for renewals, his lord- 
 ship said, " It was intended the lease should be fully estated, and that the 
 husband and wife should have life estates, and that so fully estated it 
 should go to the children." 
 
 A direction for renewals is sometimes in the form of a discretionary 
 power. The instrument may, indeed, be so specially worded, that the 
 power should be perfectly arbitrary ; but, if the proviso be simply that 
 " it shall be lawful for the trustees to renew, from time to time, as occa- 
 sion may require, and as they may think proper," the clause will be con- 
 strued, not as conferring an option upon the trustees of renewing or not, 
 
 (m) 1 Ed. 453. Search has been made for this case in the R. L. through seve- 
 ral years, but the decree has not been found. 
 
 (n) 17 Ves. 488 ; and see S. C. 19 Ves. 638; and see Trench v. St. George, 1 
 Dru. & Walsh, 417. 
 
 (o) Cited Stone v. Theed, 2 B. C. C. 246. 
 
 {p) 1 B. C. C. 197. The cause does not appear in R. L. 
 
 {q) 1 Ed. 453.
 
 344 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 but as a safeguard against any unreasonable demands on tbe part of the 
 
 lessor. (/•) 
 
 II. We next proceed to inquire in wliat manner tlie fines for renewals 
 
 are to be levied by the trustees. 
 
 Upon this subject we shall first advert to the cases where the settlor 
 himself has specifically marked out the fund from which the fines are to 
 be raised, and, secondly, we shall examine the rules adopted by the 
 court, where the settlor himself has omitted to declare any intention. 
 
 First, If there be an express trust to provide the fines for renewals out 
 ^^ of the " rents, issues, and profits," and the leaseholds *are 
 L J terms of years not determinable on lives, so that the times of re- 
 newal can be certainly ascertained, it will be the duty of the trustees to 
 lay by every year such a proportion of the annual income as against the 
 period of renewal will constitute a fund sufficient for the purpose. (s) 
 
 If the trust be to levy the fines for renewal out of the '< rents, issues, 
 and profits, or by mortgage," it was held in a case before Sir J. Leach((!) 
 that the annual rents only would in the first instance be applicable, for 
 he considered the authority to mortgage not as making it optional with_ 
 the trustees whether they should or not affect the interests of the remain- 
 derman, by throwing the charge of the renewal upon the corpus of the 
 property, but as given for the protection of the cestuis que trust in case 
 the amount of the fine should not be otherwise forthcoming,(«) and inti- 
 mated that should the trustees be under the necessity of mortgaging, the 
 court would call back from the party in possession the amount of the 
 incumbrance thus temporarily incurred. (^<) However, in the later case 
 of Jones V. Jones,(v) where the trustees were empowered to levy the 
 fines " by and out of the rents, issues, and profits, or by mortgage, or by 
 such other ways and means as should be advisable," the court, after 
 observing that to levy the fines from the rents would throw them on the 
 tenant for life, while a mortgage would be oppressive to the remainder- 
 man, declined to give any opinion whether the trustees might not, in the 
 exercise of their discretion, have determined on whom the burden should 
 fall ; but as the trustees had not exercised their discretion, it was open 
 to the court to adjust the onus amongst the parties according to the equi- 
 table rule, viz. in proportion to their actual enjoyment, as soon as it could 
 be ascertained. (w) And in Grreenwood v. Evans,(.x) and Reeves v. Cres- 
 wick,(j/) the fines were to be raised out of *the rents, issues, and 
 L J profits, or by mortgage, and the court adopted the principle of 
 throwing the onus on the successive tenants of the estate, in proportion 
 to their actual or prospective enjoyment. The leaseholds were for lives, 
 
 (r) Milsington v. Mulgrave, 3 Mad. 491, 5 Mad. 472 ; Mortimer v. Watts, 14 
 Beav. 616 ; and see Verney v. Verney, 1 Ves. 430 ; Harvey v. Harvey, 5 Beav. 134. 
 (s) Lord Montfort v. Lord Cadogan, 17 Ves. 485; S. C. 19 Ves. 635 ; see Earl 
 of Shaftesbury v. Duke of Marlborough, 2 M. & K. 121. 
 
 (0 Milsintown v. Earl of Portmore, 5 Mad. 471 ; Milles v. Milles, 6 Ves. 761. 
 (w) 5 Mad. 472, per Sir J. Leach ; and see Shaftesbury v. Marlborough, 2 M. & 
 K. 121, 123. 
 
 (v) 5 Hare, 440. (w) Jones v. Jones, 5 Hare, 440. 
 
 (x) 4 Beav. 44. 
 
 (y) 3 Y. & C. 715, as corrected from Reg. Lib. ; see post, p. 393.
 
 OF TRUSTEES OF RENEWABLE LEASEHOLDS. 345 
 
 but no distinction was taken on that account. The present leaning of 
 the courts would appear, therefore, to "be, to consider the language of the 
 instrument, as directing only the temporary mode of raising the fines, 
 without prejudice to the ultimate equitable adjustment, according to the 
 principles now acted upon in equity in ordinary cases. 
 
 If the trust be to raise the fines for renewal out of the " rents, issues, 
 and profits," and the leaseholds are either for lives or for years deter- 
 minable on lives, the expenses of renewal must still be cast upon the 
 annual rents, if it clearly appear that such were meant, though, from the 
 uncertainty of the time, the trustees cannot be sure they shall have accu- 
 mulated an adequate fund. 
 
 But the expression " rents, issues, and profits" often stands by itself, 
 without any sufficient indication aliunde that annual rents were intended, 
 and then the question arises, and is attended with great difficulty, whether 
 the fines shall be raised out of the annual rents or the corpus. 
 
 In Stone v. Theed,(a;) where was a gift to trustees of freeholds and 
 leaseholds and personal estate upon trust ^subject to annuities) for a per- 
 son for life, with remainders over, and the testator <' directed that his 
 trustees should from time to time renew the lease and add new lives, if 
 they could obtain such lease, and empowered his said trustees to place 
 out at interest the overplus of the rents of his real and leasehold estates 
 in government or real secvirities," Lord Thurlow held that the annual 
 rents only were to be so applied, observing, " He must consider the thing 
 bequeathed to be the subsisting lease, subject to renewal. Suppose 
 it were the case of an estate to which an embankment was necessary : 
 there could be not doubt it was a clear indication of intention that the 
 first trust was to keep the estate productive by embankment or other 
 buildings, *or, in the present case, by a very strict analogy, by r^ooq-i 
 keeping the leases renewed. It was objected, ' Could the testator L J 
 be understood to make a provision which might exhaust the estate of the 
 first taker V But the expressions were as strong as if he had said 
 expressly he meant the lease to be kept up, and he must be understood 
 to sacrifice the intent of a provision for the first taker to the original 
 intent of keeping up the estate." In this case it will be observed that 
 from the direction to accumulate the overplus of the rents, it appeared 
 the testator meant the annual rents only to be applicable to the renewals. 
 In Allan v. Backhouse(a) a testator devised leaseholds and freeholds 
 to trustees, and directed the fines to be levied " out of the rents and 
 profits of the leaseholds, or out of the rents and profits of the freeholds." 
 There was nothing in the will from which it could be collected that annual 
 rents and profits only were meant, and Sir T. Plumer considered that, as 
 a gross sum might at any moment be demanded by the lessor, who was 
 not bound to wait, the trustees, by the expression " rents and profits," 
 were not confined to the annual rents, but were authorised to sell and 
 mortgage ; and that the tenant for life and the remainderman should 
 
 (z) 2 B. C. C. 243 ; see the case stated from Reg. Lib., with some remarks in 
 Jones V. Jones, 5 Hare, 451, note (a), 
 (a) 2 V. & B. 65.
 
 34G 
 
 LEWIN 0:s" THE LAW OF TRUSTS, ETC. 
 
 afterwards contribute to the fine in the usual proportions. An appeal 
 was presented to Lord Eldon, by whom the decree was afl&rmed.(i) 
 
 In Shaftesbury v. Marlborough, (c) where there was a devise of renew- 
 able leaseholds to trustees upon trust to raise the fines out of the rents, 
 issues, and ijrofits, and subject thereto upon the same trusts as the tes- 
 tator's freeholds, Sir J. Leach observed upon the discrepancy between 
 Stone V. Theed, and Allan v. Backhouse, (f/) and, so far as the two cases 
 were applicable to the question before him, followed the authority of the 
 former. " The first trust," he said, "is, that the trustees by and out of 
 the rents and profits shall from time to time renew the several leases as 
 occasion may require : the trust as to the renewals overrides all beneficial 
 interest in the lease, and such interest cannot take effect until this trust 
 be performed." 
 
 *Playters v. Abbott(e) was a special case. A testator devised 
 L '^ J copyholds upon trust "out of the rents and profits, or by mort- 
 gage, sale or other disposition" of the trust estate, to raise the fines of 
 admission to the copyholds, make repairs, pay the land-tax and quit- 
 rents, &c., and Sir J. Leach (considering the fine on admission to copy- 
 holds to stand on the same footing with fines on renewal of leases,) deter- 
 mined, that as no rents could have accrued before the fines were demand- 
 able, viz., immediately on the testator's death, the meaning was referenda 
 singula singidis, that the trustees should raise the fines by mortgage or 
 sale, and should keep down the annual expenses as repairs, land-tax, and 
 quit-rents out of the annual rents: that the tenant for life was only called 
 upon to keep down the interest on the mortgage for raising the fines and 
 not to contribute to the principal, for the trustees might clearly have 
 sold, and it was not to be supposed that they were afterwards to impound 
 the accruing rents from the tenant for life in order to purchase other 
 lands of equal value. 
 
 In Towuley v. Bond(/) there was a lease for lives at 4s. an acre rent, 
 with a covenant by the lessor for renewal, on payment of an additional 
 rent, by way of fine, and on the marriage of the lessee, the lease was 
 vested in trustees " upon trust to pay and discharge the yearly rents 
 reserved and payable upon any renewal," and subject thereto, upon trust 
 for the husband for life, with remainders over, and the court apparently 
 assumed that the fines were raisable out of the annual rents.(/) 
 
 In Creswick v. Reeves,((7) the trustees were empowered to levy the 
 fines from the rents, issues, and profits, or hi/ mortgage, and the court 
 apportioned the burthen amongst the successive tenants, according to their 
 prospective enjoyment. 
 
 In Greenwood v. Evans,(/i) the trustees were directed to raise the fines 
 out of the rents, issues, and ptrofits, or hy mortgage, and the court de- 
 cided that the successive tenants ought to bear a proportionate part of 
 
 {b) Jac. 631. 
 
 (c) 2 M. & K. 111. [d) 2 M. & K. 121. 
 
 (e) Id. 97 ; and see Greenwood v. Evans, 4 Beav. 44. 
 
 (/) 2 Conn. & Laws, 393. 
 
 [g) 3 Y. & C. "715, corrected from Reg. Book, post 393. [h) A Beav. 44.
 
 OF TRUSTEES OF RENEWABLE LEASEHOLDS. 347 
 
 the fine according to the benefit derived by them respectively from the 
 renewal of the lease. 
 
 *In Jones v. Jones/ A the trustees were directed to raise the (-:)cqni-i 
 fines by and out of the rerits, issues, and j^rofits, or hy 'mortgage, L J 
 or by such other ways and means as should be advisable, and the court 
 apportioned the burthen amongst the parties according to the actual 
 benefit derived by them. 
 
 It thus appears that where the direction is to raise the fines out of the 
 rents, issues, and profits, the court may be compelled, by the express 
 language of the instrument, to throw the fines upon the annual rents, 
 but that where the trustees are empowered to raise the fines out of the 
 rents, issues, and profits, or by mortgage, or otherwise, the discretion to 
 be exercised is held to apply only to the temporary means of raising 
 the fund, and the court apportions the burthen according to the general 
 rule. 
 
 On a reference to the master by Sir J. Leach, how a fund for payment 
 of fines on the renewals of leaseholds for lives, where the fines were to 
 be paid from the rents, could best be secured, the master proposed in 
 his report, that each of the lives, upon which the leases were held, 
 should be insured against the life of the tenant for life in a sum suffi- 
 cient to cover the amount of the fine, the premiums upon the policies to 
 be paid out of the annual rents and profits. (/i;) Upon this arrangement 
 we must remark, that the lives of the cestiiis que vie ought to have been 
 insured unconditionalli/ and not against the life of the tenant for life, 
 for the estate was continually deteriorating as the lives wore out, and the 
 remainderman was entitled to have good lives or equivalent insurances. 
 In leaseholds for years, the remainderman has right to a proportional 
 accumulation towards the payment of the next fine, and why is not the 
 same principle to prevail in the case of leasehold for lives? Subject to 
 this observation, a more convenient mode of raising the fines could not 
 perhaps be suggested, and a trustee under similar circumstances would 
 scarcely incur a risk in following the precedent of the court. 
 
 Where freeholds and leaseholds for lives are limited to the same uses, 
 it is usual, from the difficulty of mortgaging leaseholds *vested p^^^.^-. 
 in trustees (who will not covenant beyond their own acts,) to L ~J 
 insert a power to charge the freeholds for raising the fines; and it would 
 be well to provide that the freeholds and leaseholds might be joined 
 together in the security, and that the loan should precede other charges, 
 and that the corpus of the property should be subject to the mortgage, 
 so as to shut out the question of apportionment between the tenant for 
 life and the remainderman. 
 
 If a portion of the amiual rents and profits be destined by the settlor 
 to defray the expenses of renewals, then, should it happen from the un- 
 willingness or incapacity of the lessor that no renewal can be obtained, 
 the sums which would have been raised, will not, it seems, merge for the 
 
 ' (i) 5 Hare, 440. 
 
 {k) Earl of Shaftesbury v. Duke of Marlborough, 2 M. & K. 124; and see 
 Greenwood v. Evans, 4 Beav. 44.
 
 348 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 benefit of the tenant for life, but will belong to the person who would 
 have been the gainer by the renewal. 
 
 If a trustee,(m) or tenant for life, in the situation of a trustee,(?i) fail 
 in his duty to apply the given fund, the remainderman may call for a 
 compensation from such trustee, or tenant for life, or their assets. But 
 when, by the permission of the trustee, the tenant for life has been in 
 the full enjoyment of the rents and profits without deduction for renew- 
 als, though the trustee is primarily answerable to the remainderman, yet 
 the tenant for life, who has had the actual pernancy, must make it good 
 to the trustee, (o) 
 
 And where the leaseholds were annually renewable for twenty-one 
 years, and the custom had been for the lessee annually to grant under- 
 leases for twenty years, the tenant for life, as bound to pay the fines to 
 the lessor out of the annual rents and profits, was declared entitled to 
 the fines paid annually by the under-lessees. (p) 
 
 P^„„„ *Secondly. It often happens that renewable leaseholds are 
 L -I devised to trustees with a direction, either expressed or implied, 
 to keep the leases continually renewed, but without any declaration of 
 intention from what fund the settlor meant the expenses should be 
 levied. 
 
 Where this is the case, the tenant for life and remainderman may pos- 
 sibly agree to contribute toward the fine out of their own pockets, at the 
 time of the renewal ; or if the tenant for life and remainderman cannot 
 agree to join in raising the fine, one of them may be willing to advance 
 the whole amount jjj-o tempore out of his own pocket, and then an appor- 
 tionment on the principles adopted by the court may be compelled be- 
 tween the tenant for life's estate and the remainderman at the tenant for 
 life's decease, and either party advancing the fine will have a lien on the 
 renewed lease for the amount expended beyond his proportional part. If 
 tenant for life and remainderman will neither jointly nor either of them 
 singly advance the fine, then it is said the trustees must raise the ex- 
 penses out of the estate by way of mortgage -Aq) and at the tenant for 
 life's decease the apportionment must be made in like manner. How- 
 ever, a mortgage, where neither the tenant for life nor remainderman 
 will make the advance, is more easily to be suggested than to be carried 
 into effect, for few persons would be disposed to lend their money on 
 such a security, in the absence of any express power to mortgage. 
 r>|coq_i-i In such a case, therefore, it seems necessary to have recourse 
 L J to the court. Thus, in a recent case,M where leaseholds *for 
 
 [l) See Colegrave v. Manby, 6 Mad. 86, 87 ; S. C. 2 Russ. 252 ; Bennett v. Col- 
 ley, 5 Sim. 181 ; 2 M. & K. 231; but see Richardson v. Moore, and Tardiff t. 
 Robinson, cited Colegrave v. Manby, 6 Mad. 82, 83. 
 
 (to) Lord Montfort v. Lord Cadogan, 17 Ves. 485; S. C. 19 Ves. 635; and see 
 Wadley v. Wadley, 2 Coll. 11. 
 
 (n) Colegrave v. Manby, 6 Mad. 72 ; S. C. 2 Russ. 238. 
 
 (o) Lord Montfort v. Lord Cadogan, ubi supra ; Tovrnley y. Bond, 2 Conn. & 
 Laws, 403, 406, per Sir E. Sugden ; and see Wadley v. Wadley, 2 Coll. 11. 
 
 ip) Milles Y. Milles, 6 Ves. 761. 
 
 (?) Bee Buckeridge y. Ingram, 2 Ves. jun. 666; Earl of Shaftesbury v. Duke of 
 Marlborough, 2 M. & K. 121 ; Allan y. Backhouse, 2 V. & B. 72. 
 
 (r) Reeves v. Creswick, 3 Y. & C. 715. It is stated in the report that "there
 
 OF TRUSTEES OF RENEWABLE LEASEHOLDS. 349 
 
 lives were devised to trustees upon trust for A. for life, -with remain- 
 der to her children, and a bill was filed by the trustees for the purpose 
 of having the expenses of renewal raised, the following scheme, which 
 had been approved by the master, was directed to be carried into effect. 
 The period of enjoyment of the property by the tenant for life under 
 each of the old leases, being the joint duration of her own life, and that 
 of the then surviving cestui que vie named in such lease, and the period 
 of her enjoyment of the property under each corresponding renewed 
 lease being in like manner the joint duration of her life and those of the 
 new cestuis que vie, or the longest liver of them ; the diflFerence between 
 the values of the estates of these two periods gave the benefit derived by 
 the tenant for life from the renewals in question. The residue of the 
 increased value of the property necessarily expressed the benefit derived 
 from the renewals by the remainderman. Calculations were accordingly 
 made by the actuary of an insurance ofiice, upon the above principles, of 
 the benefit derived by the respective parties from the renewal of each 
 lease, and the fines and expenses of renewal being divided in the propor- 
 tions so ascertained, the total amount which thereupon appeared to fall 
 to the share of the tenant for life, was directed to be insured upon her 
 own life for the purpose of providing, upon her decease, for the payment 
 of a corresponding part of the principal of the mortgage debt to be raised 
 upon the property. The policy of insurance was oi'dered to be assigned 
 to the mortgagee, and directions were given for paying the premiums on 
 the policy, and for keeping down the interest on the entire mortgage- 
 debt out of the annual rents and profits of the estates. The only obser- 
 vation that occurs upon the propriety of this arrangement is, whether 
 the tenant for life ought to have been directed to keep down the interest 
 on the entire mortgage-debt out of the annual rents as between n>«oQc-| 
 *him and the remainderman, or only of that part of the princi- L ' J 
 pal which fell to the share of the tenant for life. It will be seen also 
 from this statement, that the court made an apportionment according to 
 the speculative benefit, a course which the court has since disclaimed, 
 except for the purpose of raising the fine in prcesenti, without prejudice 
 to the ultimate apportionment on the death of the tenant for life, when 
 the relative benefits derived can be ascertained. It is possible, though 
 it does not so appear from the report, that the decree was without preju- 
 dice to an ultimate adjustment. 
 
 were no funds provided for the purpose of renewal by the testator's will ;" from 
 which it might be supposed that the will was altogether silent upon the subject, 
 but Mr. Shapter, who had occasion to consult the Reg. Lib., has obligingly fur- 
 nished me with the following extract from the will : " It shall be lawful for my 
 said trustees, and the survivor of them, and the heirs, executors, administrators 
 and assigns respectively of such survivor, to renew, or use their or his endeavours 
 to renew, the leases for the time being of such part of my said estates as shall be 
 accustomably renewable from time to time and as often as occasion shall require, 
 and for that purpose to make such surrenders of the then leases, or any renewed 
 leases, as shall be requisite and necessary in that behalf, and by and out of the 
 rents, issues and profits of the premises, the leases whereof may be so renewed, or 
 by mortgage tliereof, to raise so much moneys as shall be sufficient for paying the 
 several renewal fines and other necessary charges for such renewals." 
 
 March, 1858.— 23
 
 350 LEWIN ox THE LAW OF TRUSTS, ETC. 
 
 We proceed to inquire upon what principles the apportionment is 
 reo-ulated upon the tenant for life's decease. 
 
 The old rule of contribution was, that the tenant for life should 
 advance one-third, and the remainderman two-thirds ;(s) but the ques- 
 tion was put by Lord Thurlow, '' Is a tenant for life at the age of ninety- 
 nine, whose title accrued in possession when he was ninety-eight, to pay 
 one-third — a great deal more than any possible enjoyment ? According 
 to that rule, a man of the age of ninety-nine, who has the enjoyment 
 only of ten days, pays as much as a man of twenty-five. "(^) 
 
 It might possibly be thought reasonable that the proportion of the 
 expense to fall upon the tenant for life should be regulated by his actual 
 age and probable duration of life ; but accident might render such a 
 course unjust to the one party or the other, as the tenant for life hap- 
 pened to live a longer or shorter period than was allowed by the calcula- 
 tion,(M) and the courts, it was observed by Lord Brougham, have made 
 it a maxim not to admit an estimate which the events may afterwards 
 falsify, (y) 
 
 *Lord Alvanley adopted the rule,(M5) and from the case of 
 L J Lawrence V. Maggs it would seem that Lord Northington had 
 before acted upon the same principle, (x) that the tenant for life should 
 merely keep down the interest of the fine : but Lord Eldon said, " he 
 could not agree to that. In the case of tenant for life and remainder- 
 men in tail or in/ee, the inheritance being charged with the mortgage, 
 it was fair the tenant for life should only keep down the interest, for the 
 natural division was, that he who had the corjms should take the burden, 
 and he who had only the fruit should pay to the extent of the fruit of the 
 debt : but leases, whether for lives or years, were in their nature tempo- 
 rary, and therefore the position that the tenant for life was bound to 
 pay the interest was to be understood with this qualification, that he was 
 further bound to contribute a due proportion of the principal according 
 to the benefit he derived from the renewed interest."(^) 
 
 The rule now in operation was first clearly laid down by Lord Thur- 
 low in Nightingale v. Lawson,(2;) a case, said Lord Eldon who was one 
 of the counsel in it, to which, from the intricacy of the subject, the 
 reports have failed to do justice. (a) 
 
 The circumstances may be very briefly stated as follows : — A widow, 
 tenant for life of a term which had twelve years to run, renewed for a 
 further term of twenty-eight years, to commence from the expiration of 
 
 (s) Earl of Shaftesbury v. Duke of Marlborough, 2 M. & K. 118, per Sir J. 
 Leach; Lock t. Lock, 2 Vern. 666, R. L. 1*710, B. fol. 120 ; Verney v. Verney, 1 
 Ves. 428 ; Limbroso v. Francia, cited ib. ; Graham v. Lord Londonderry, cited 
 Stone T. Theed, 2 B. C. C. 246 ; and see Rowel v. Walley, 1 Ch. Rep. 218 ; Ballet 
 v. Sprainger, Pr. Ch. 62 ; Cornish v. Mew, 1 Ch. Ca. 271. 
 
 (t) See White v. White, 9 Ves. 555. 
 
 (m) Earl of Shaftesbury v. Duke of Marlborough, 2 M. & K. 119, per Sir J. 
 Leach. 
 
 M Bennett v. Colley, 2 M. & K. 234. 
 
 (w) Buckeridge v. Ingram, 2 Ves. jun. 652, see 666 ; White v. W^hite, 4 Ves. 24, 
 see 33. (a;) i Ed. 453, see 455. 
 
 (y) White V. White, 9 Ves. 560. (z) l B. C. C. 440. 
 
 (a) White v. White, 9 Ves. 556.
 
 OF TRUSTEES OF RENEWABLE LEASEHOLDS. 351 
 
 the twelve years, and afterwards renewed for the additional term of 
 fourteen years to commence from the expiration of the twenty-eight 
 years. The widow lived through the original term of twelve years, and 
 through nine of the renewed term of twenty-eight years. The question 
 was raised after the death of the widow, in what proportions the tenant 
 for life and the remainderman should contribute to the fines. The fol- 
 lowing points were resolved by Lord Thurlow, after a very anxious, fre- 
 quent, and grave consideration of the subject,(i) and have ever since 
 been acquiesced in by the courts. 
 
 *1. " That, as the widow had lived nine years after the expi- pony-i 
 ration of the twelve leaving nineteen years to run of the twenty- L -J 
 eight, the master ought to take the sum paid by her for the renewal of 
 the lease as the value of the term purchased, that is, of the term of 
 twenty-eight years, to commence at the expiration of the twelve years ; 
 he should then consider the value of the term of nine years after the 
 existing term, and what the term of nineteen years after the existing 
 term and the nine years was worth, and the latter was the proportion to 
 be paid by the remainderman. "(c) Upon which resolution Lord Eldon 
 thus comments : — " It was first considered," he said, " what the interest 
 of the tenant for life was in that term which had to run out at the time 
 of the renewal, and then what benefit the tenant for life had received by 
 the enjoyment of the renewed term from the period when the old term 
 would have expired : and Lord Thurlow determined that the remainder- 
 man took that interest in the renewed term which was ^dtra so much of 
 the renewed term as expired in the lifetime of the person who renewed, 
 and the value of that interest he made the remainderman pay."((:7) 
 
 2. " That as to the kind of interest to be allowed, smiple interest 
 would not be a satisfaction, as the widow had laid out her money totally, 
 and the value of the lease was calculated upon the ground of compound 
 interest : compound interest was therefore to be computed upon the pro- 
 portional value of the nineteen years' term to the whole expense of 
 renewal." (e) 
 
 3. "That as to the rate of interest, in computing compound interest, 
 you go upon the idea that the interest is paid upon the exact day and 
 immediately laid out ; but as this was impossible, it would be sufiicient 
 to compute interest at 4 per cent."(/) 
 
 4. '<■ That such interest was only to be paid till the widow's death, for 
 after that her executors had the demand upon the *remainder- r^^ggg-. 
 man, and it became a common debt, and must carry simple L -J 
 interest only."((7) 
 
 5. " With respect to the second renewal, as the widow had not lived 
 to enjoy any part of that term, her executors were entitled to the whole 
 
 (6) See White v. White, 9 Ves. 560. 
 
 (c) See Coppin v. Fernyhoiigh, 2 B. C. C. 291 ; Barnard v. Ilcaton, cited White 
 V. White, 4 Ves. 29 ; Playters v. Abbott, 2 M. & K. 108 ; Earl of Shaftesbury v. 
 Dulce of Marlborough, 2 M. & K. 118 ; Lanauze v. Malone, 3 Ir. Ch. Re. 354. 
 
 (d) White V. White, 9 Ves. 558. 
 
 (e) See White v. White, 4 Ves. 35, 36 ; S. C. 9 Ves. 557, 558. 
 (/) See Giddings v. Giddiugs, 3 Russ. 260. 
 
 [g) See Giddings v. Giddings, 3 Russ. 260.
 
 352 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 of the expenses, with interest to be computed on the same principle as 
 
 before."(^') 
 
 In this case it will be observed, the tenant for 7i/e had disbursed the 
 
 fine, and, the payment being a charge upon the property, the widow was 
 
 in no danger of eventually losing her demand. But where the tenant 
 
 for life has not the means of renewing, but the remainderman comes 
 
 forward with the money, if the contribution is to be suspended till the 
 
 death of the tenant for life, it may happen, that, when the proportions 
 
 can at last be ascertained, the estate of the tenant for life may be 
 
 insolvent, and so the contribution be lost. " I admit," says Lord Eldon, 
 
 " there is this difficulty in the case j but perhaps from the nature of 
 
 the thing it cannot be helped : the utmost extent you can go is to make 
 
 the tenant for life give security for the sum which may eventually be 
 
 due."(i) 
 
 There occurs, also, this other difficulty, viz. how to apply the principle 
 to the case of leaseholds for lives. The new cestui que vie may die in 
 the lifetime of the original cestui que vie, and then no actual benefit 
 accrues either to the tenant for life or to the remainderman. If the 
 tenant for life paid the fine, is the remainderman to contribute nothing, 
 because he took no benefit ? If the remainderman paid the fine, is the 
 tenant for life to contribute nothing, because he can excuse himself 
 under the same plea ? 
 
 From the nature of leaseholds for lives it seems difficult to discover 
 any better principle than one of the following : — 
 
 First, That the tenant for life and the remainderman should contribute 
 according to their chance ofhenefit at the time of the renewal, in which 
 case the proportions would be settled thus : — The chance of benefit to 
 the tenant for life is the value of the new life commencing from the 
 r*^QQT <^^^th of the last surviving *original cestiii que vie, and deter- 
 L J mining on the death of the tenant for life. The chance of bone- 
 fit to the remainderman is the value of the new life commencing on the 
 death of the original cestuis que vie after the death of the tenant for life. 
 In the proportion of these two values would be the respective contribu- 
 tions. 
 
 Secondly, That the remainderman's proportion should be regulated by 
 the actual benefit derived. Thus, if the new cestui que vie die in the 
 lifetime of any of the original cestuis que vie or of the tenant for life, 
 the remainderman takes no benefit and has nothing to pay. In this case 
 the tenant for life is the loser. Should the new cestui que vie survive 
 the original cestuis que vie and also the tenant for life, the value of the 
 new life should be taken at the tenant for life's death, and that interest 
 be paid for by the remainderman. It might happen that the original 
 cestuis que vie and the tenant for life might die soon after the renewal, 
 and then the estimated value of the new life would be greater than the 
 whole fine. In such a case the tenant for life would be a gainer. Thus 
 the tenant for life might sometimes be a gainer, sometimes a loser : the 
 
 [h) Coppin v. Fernyhough, 2 B. C. C. 291. 
 
 («•) See White v. White, 9 Yes. 558, 559 ; Earl of Shaftesburv y. Duke of Marl- 
 borough, 2 M. & K. 122.
 
 OF TRUSTEES OF RENEWABLE LEASEHOLDS. 353 
 
 remainderman would never either gain or lose, but would pay the exact 
 value of the interest which he actually took. 
 
 The authority of Lord Eldon upon the subject is so obscurely worded, 
 that little light can be gained from it. 
 
 "There is no difference," he said, "between a renewable term for 
 years and a lease for lives renewable. In the former case the difficulty 
 does not arise so much, upon the probable value of a term certain, as upon 
 an estate for lives in estimating what is the value of that life which may 
 survive the three cestnis que vie, and that interest to be paid for by the 
 remainderman, as the case may happen that one, two, or three lives may 
 determine in the life of the man entitled to the beneficial interest."(A;) 
 
 In the recent case of Jones v. Jones,(^) before Yice-Chancellor Wig- 
 ram, and involving leaseholds for lives as well as leaseholds for years, and 
 where the fines were to be raised out of the rents or by mortgage, or by 
 such other means as should be advisable, the mode of raising and ulti- 
 mately apportioning the *fines was fully considered, and the im- r* < Qr|-i 
 portance of the subject may justify a somewhat lengthened ex- *- -■ 
 tract from the judgment. " The rule," said the vice-chancellor,(??i) "is 
 that the parties are to pay in proportion to their enjoyment, by which I 
 understand their actual enjoyment to be meant, and not an extent of en- 
 joyment to be determined by mere speculation, or by a calculation of pro- 
 babilities, and the question is, how that apportionment is to be effected. 
 If the tenant for life is willing to take upon himself to renew, it appears 
 to me according to the cases there is very little difficulty in carrying out 
 the transaction. He will enjoy the estate during his own life, and when 
 the actual period of his enjoyment is ascertained, his estate will have a 
 lien upon the residue of the term for any overpayment which may have 
 been made. The tenant for life having paid the whole, if he has not 
 the whole enjoyment his estate will have a lien for whatever ought to be 
 paid by the remainderman. The case is one of much greater difficulty 
 where the renewal is made by the remainderman, or (which as to this 
 difficulty is the same thing,) where the trustee is to raise the money and 
 charge it on the corpus. In that case, unless some course be taken to 
 protect the interest of the remainderman, the tenant for life may enjoy 
 the estate during his whole life without bearing any greater charge than 
 the interest on the debt created by the renewal, and he may leave no 
 assets to pay his proportion of the principal money. That inconvenience 
 may perhaps be avoided by requiring the tenant for life to give security. 
 The late cases of Greenwood v. Evans,(») and Reeves v. Creswick,(o) 
 are authorities which recognize the course of giving security as a course 
 proper to be pursued where no other means are open for providing for a 
 proper apportionment. It is not to be disputed that there is a practical 
 difficulty even in this mode of proceeding ; the difficulty is in determin- 
 ing for what sum the tenant for life is to give security. If he gives 
 security for the whole amount of the fine, because by possibility he may 
 enjoy the whole benefit resulting from the renewal, the difficulty is got 
 
 {k) White V. White, 9 Yes. 559. (/) 5 Hare, 440. 
 
 \m) Page 496. («) 4 Bear. 44. 
 
 (o) 3 Y. & C. 715.
 
 354 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 over; but the tenant for life may not be able to give security for 
 L -i *the whole although he might for a part, and how is the court 
 in such a case to deal with the interests of the parties ? I do not mean 
 to give any opinion as to the way in which the court would proceed in 
 cases that might be suggested, but in considering what is proposed as a 
 general rule, it is right not to disregard the inconvenience or difficulty 
 which in some cases might arise in its application. I do not, however, think 
 that the difficulty to which I have adverted is insuperable. The tenant 
 for life may in the first instance be required to give security for an 
 amount calculated upon the assumption that his life will last during a 
 portion of the renewed lease. If he should die within the time during 
 which it was assumed that his life would last, the security would of course 
 be more than sufficient to satisfy his proportion of the fine, and it would 
 be void for the excess. If he outlived that time he might, if necessary, 
 be called upon to give a further security to cover the additional propor- 
 tion then to be attributed to him. In the case of Allan v. Backhouse, (/>) 
 and other cases, it would appear that the party was not called upon in the 
 first instance to pay the whole, but it was apportioned, and I presume on 
 the principle that he should be required to pay the apportioned sum in 
 the first instance without prejudice to the question whether he might not 
 ultimately be liable to pay more. It appears to me, being guided by the 
 light which the cases afforded me, proper to declare that each party is to 
 bear the burden of the renewal in the proportion of his actual enjoy- 
 ment of the estate. There will be a direction for the tenant for life to 
 keep down the interest, and a reference, as in Allan v. Backhouse, (p) 
 to ascertain what proportion of the fine was properly payable by him. 
 This inquiry is necessarily by anticipation. There will then be a refer- 
 ence, as in Greenwood v. Evans,(5) for the master to approve of a se- 
 curity, and these directions must be followed by a declaration that the 
 reference and security are to be without prejudice to the question whether 
 the tenant for life may or may not be liable to pay less or more than the 
 sum for which the security is given." The doctrines enunciated in this 
 r*4021 ^^^^ have been since *approved as sound law, and the tenant for 
 '- -I life, where the fine has been paid out of the trust fund, has been 
 ordered to give security for his contribution to the fine in proportion to 
 the benefit which he should derive from the new life.(r) 
 
 Where the legal estate of renewable leaseholds is devised without the 
 interposition of a trustee, but the testator at the same time directs, either 
 expressly or by implication, that the leases should be renewed, the tenant 
 for life is then himself a trustee,(s) and as such is compellable to obtain 
 renewals,(^) and ought before applying for a renewal to consult the re- 
 mainderman, (m) 
 
 It has been said, that if from the threats or acts of the tenant for life 
 there appears the intention of suS"ering the lease to expire, the court 
 
 (p) 2 Ves. & Be. 65. (q) 4 Beav, 44. 
 
 {r) Huddlestone v. Whelpdale, 9 Hare, '775. 
 
 W White V. White, 5 Ves. 554. 
 
 (t) Lock V. Lock, 2 Vern. 666 ; and see "White v. White, 4 Yes. 24. 
 
 (m) White V. White, 5 Ves. 554.
 
 OF CONTINGENT REMAINDERS. 355 
 
 would appoint a receiver of the estate to provide a fund for the re- 
 newal ;(«) and that if the tenant for life has already allowed the period 
 of renewal to pass, the rents and profits may be sequestered for either 
 procuring a renewal,(w) or finding the remainderman a compensation. (x) 
 But no suit /or damages can be efi"ectually prosecuted before the tenant 
 for life's decease ; for so long as it remains uncertain how much of the 
 renewed term will survive to the remainderman, the amount of the in- 
 jury done to him cannot be ascertained. (^) It follows that the mere for- 
 bearance of the remainderman to bring a suit during the continuance of 
 the life estate cannot be construed into laches or acquiescence. (2) 
 
 We may remark in conclusion, that the admission fines of trustees of 
 copyholds are regulated by the same principles as fines on renewal of 
 leaseholds. Thus a testator devises copyholds to A. and his trustees upon 
 trust for B. for life, with remainder to C. in fee. A. pays a fine on his 
 admission and dies. His *heir is admitted and pays a fine and r^,AM-i 
 dies, and his heir again is admitted and pays a fine. Thus the L -• 
 fine for the admission of the trustee is a kind of purchase-money for an 
 estate for the life of that trustee. The burthen must of course be borne 
 by the cestuis que trust of the estate, and they contribute to the fines in 
 proportion to their actual enjoyment, as in the case of leaseholds. (<») 
 These observations are on the assumption that the will or settlement 
 contains no express directions how the fines are to be raised. 
 
 *CHAPTER XV. [*404] 
 
 DUTIES OF TRUSTEES TO PRESERVE CONTINGENT REMAINDERS. (a«) 
 
 Settlements which embrace limitations to trustees to preserve con- 
 tingent remainders are usually penned in one of the two following forms : 
 either, First, the estate is limited to the use of the parent for 99 years 
 if he should so long live, with remainder to the use of trustees and their 
 heirs during the life of the parent upon trust to preserve contingent 
 limitations with remainders over ; or to the use of trustees and their heirs 
 during the life of the parent in trust for him with remainders over ; or, 
 Secondly, it is settled to the use of the parent for life, with remainder to 
 trustees and their heirs during the life of the parent upon trust to pre- 
 serve contingent limitations, with remainders over. 
 
 In the first form of settlement the object in view by the interposition 
 of trustees is not merely to preserve the contingent estates from the 
 
 (v) See Bennett v. Colley, 2 M. & K. 233. 
 
 (w) See S. C. 5 Sim. 192. 
 
 {x) S. C. 5 Sim. 181 ; 2 M. & K. 225 ; and see Lord Montfort v. Lord Cadogan, 
 
 17 Ves. 490. , , c r. 
 
 (y) Bennett v. Colley, 5 Sim. 181 ; S. C. 2 M. & K. 225. {z) S. C. 
 
 \a) See Playters v. Abbott, 2 M. & K. 108 ; Bull v. Birkbeck, 2 Y. & C. Ch. Ca. 
 447 ; Jones v. Jones, 5 Hare, 461. 
 
 {aa) The law upon the subject has since been most materially altered by recent 
 acts, as will be noticed at the end of the chapter.
 
 356 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 parent's legal power to destroy them, but also to prevent the exercise of 
 any undue influence of the father over the son, which, if the father were 
 tenant of the first freehold, he might be disposed to practise, in order to 
 induce the son to join in barring the entail for purposes not authorised 
 by the spirit of the settlement.(i) 
 
 In the second form it is imposed upon the trustees, as before, to preserve 
 the contingent limitations ; but as the freehold in possession is vested in 
 the parent, the trustees can have no power to prevent a recovery by the 
 father and son so *soon as the son has attained the age of twenty- 
 L -I one; but should the tenant for life commit a forfeiture, and so 
 the freehold in possession become vested in the trustees, it would then 
 be their duty, though the settlor himself might not have contemplated 
 such a purpose, not to allow the interests of the child to be prejudiced 
 by any improper exercise of the authority of the parent. 
 
 The duties of these trustees may be regarded, first as the case stands 
 before the eldest son has attained twenty-one ; and, secondly, as the 
 obligations of the trustees are varied by the occurrence of that event. 
 
 I. Until the eldest son has attained ticenty-one the duty of the trustees 
 not to join in any act to destroy the contingent remainders is express 
 and imperative. i^A "When trustees," it was once observed by the 
 court, "are appointed to preserve an estate in a family and for no other 
 purpose, and they, instead of pursuing it, do a wilful act with an intent 
 and in order to desti'oy it, how can this be otherwise than a plain breach 
 of trust, or how can it be rendered clearer than by barely putting the 
 case ? Should the court hold it no breach of trust, or pass it by with 
 impunity, it would be making proclamation that the trustees in all the 
 great settlements in England were at liberty to destroy what they had 
 been entrusted only to preserve. Where an estate is limited to A. for 
 life, remainder to his first and other sons in tail, though it be a plain 
 wrong and tort in A. to do any act which will destroy those remainders 
 before the birth of a son, notwithstanding his legal power of doing so, 
 yet, as in this case there is no trustee, there can be no trust, nor conse- 
 quently any breach of trust, and therefore a court of equity may have no 
 cognisance of such a case nor handle for relief, the matter being left 
 purely at the common law. To prevent this inconvenience, the remedy 
 of appointing trustees was invented on purpose to disable the tenant for 
 r*4nfil ^^^^ ^'(Q'iSL doing such an injury to his issue, which is not a very 
 ■- -J *old invention. Now as it was a tort in the tenant for life where 
 there were no trustees to destroy contingent remainders, so must it more 
 plainly be one in trustees to join in the destruction of them being con- 
 rary to their trust, upon which account only is such act of theirs punish- 
 able in a court of equity." (cZ) 
 
 It was formerly contended, that in settlements upon marriage, or for 
 other valuable consideration, it would be a breach of duty to join in the 
 
 (6) See Woodhouse v. Hoskias, 3 Atk. 24 ; Woolmore v. Burrows, 1 Sim. 527. 
 
 (c) Mansell v. Mansell, 2 P. W. 678; Moody v. Walter, 16 Yes. 302 and 307, per 
 Lord Eldon; Biscoe v. Perkins, 1 V. & B. 491, per eundem; Tipping v. Piggott, 1 
 iiq. Ca. Ab. 385, per Lord Harcourt ; Pye v. Gorge, 1 P. W. 128, per eundem; S. 
 
 {d) Mansell v. Mansell, 2 P. W. 680.
 
 OF CONTINGENT REMAINDERS. 357 
 
 destruction of the remainders, but that in limitations created by will or 
 other voluntary settlement the same doctrine was not applicable ; but in 
 Mansell v. Mansell(e) the distinction was unhesitatingly over-ruled, for 
 " whether the trustee did it on a voluntary conveyance or not was imma- 
 terial, for still every trustee ought to be faithful to his trust." {/) 
 
 If the trustees destroy the contingent remainders in favour of a volun- 
 teer or purchaser with notice, the specific estate may be followed into the 
 hands of such volunteer or purchaser ; but if the trustees pass the proper- 
 ty into the hands of a purchaser without notice, then, as the identical 
 estate cannot be recovered, the trustees will be decreed to buy other 
 lands of equal value to be settled to the same uses.(r/) 
 
 Where the ultimate limitation of a marriage settlement is to the heirs 
 of the hushand, if the trustee join with the husband and wife in the 
 destruction of that remainder, and there is no issue of the marriage, the 
 heir of the husband is not entitled to come upon the trustee to compen- 
 sate him for the loss of the estate : relief is extended to those only who 
 come in and claim as purchasers, as first and other sons ; not to all the 
 subsequent remaindermen, as the right heirs of the husband, who are 
 regarded in the light of volunteers, and not to be aided in a court of 
 equityi/i) 
 
 And in a limitation to trustees and their heirs during *the life r^K^A-r-i 
 of the husband, remainder to the heirs of the body of the husband, L J 
 remainder to the husband in fee, the issue of the marriage cannot claim 
 compensation for a breach of trust during the lifetime of the husband, 
 for nemo est hceres viventis.{fj 
 
 As any disturbance of the settlement before the eldest son has attained 
 twenty-one is a clear breach of trust, it follows that even the court can- 
 not sanction such a proceeding, though very particular circumstances 
 may be alleged in support of the reasonableness of the demand. Thus, 
 where the plaintiff and his wife had been married twelve years without 
 issue, and the prayer of the bill was that part of the estate might be sold 
 for payment of debts, and the trustees submitted to act as the court 
 should direct, Lord North said ^'he could not justify to decree a breach 
 of trust : he had known where people had been married near twenty 
 years without issue, and afterwards had children. "(Z-) 
 
 But two cases are to be noticed, in which the court did conceive itself 
 justified, from the great particularity of the circumstances, in departing 
 from this rule. 
 
 The first is the case of Piatt v. Sprigg,(?) in which E. mortgaged lands 
 to M. for 1000 years, to secure lOOOZ. and interest, and afterwards upon 
 his marriage made a settlement, subject to the incumbrance, to the use 
 of himself for life, remainder to trustees to preserve contingent remain- 
 ders, remainder to the wife for life, remainder to the first and other sons. 
 The mortgagee threatened to enter, and the lands were in consequence 
 
 (e) 2 P. W. 678. (/) Id. 683. 
 
 {g) Mansell v. Mansell, 2 P. W. 681, per Cur.; Parkes v. White, 11 Yes. 209, 
 see 220, 236: Pye v. Gorge, Pr. Ch. 308 ; S. C. 1 P. W. 128. 
 
 (/t) Tipping V. Piggott, 1 Eq. Ca. Ab. 385. (i) Else v. Osborn, 1 P. W. 387. 
 
 {k) Davies v. Weld, 1 Vern. 181 ; S. C. 2 Ch. Ca. 144. 
 {I) 2 Vern. 303.
 
 358 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 articled to be sold. The purchaser filed a bill praying specific perform- 
 ance, and that the trustees might be directed to join in the conveyance, 
 and so it was decreed by the court. But the ground of this decision 
 was, that, as the mortgagee was not bound by the subsequent settlement, 
 he might have foreclosed the estate, and so have precluded the parties 
 entitled under the settlement from all interest in the property ; but if the 
 lands were sold, the surplus proceeds, after discharging the mortgage, 
 *would be so much gained to the uses of the settlement. Thus 
 L "^ J the principle acted upon was not that trustees to preserve con- 
 tingent remainders might join in the destruction of them, but that the 
 best mode of executing the trust, under the circumstances, was to sub- 
 stitute a sale for a foreclosure, and to lay out the surplus in lands to be 
 settled to the same uses.(«i) 
 
 In the case of Basset v. Clapham(H) A., after marriage, made a volun- 
 tary settlement of lands to himself for life, remainder to trustees to pre- 
 serve contingent remainders, remainder to the first and other sons in tail, 
 remainder to himself in fee, and afterwards, becoming insolvent, executed 
 a conveyance of the same premises to trustees for payment of his debts. 
 The creditors filed a bill for the purpose of obtaining a sale, and prayed 
 that the trustees might join in destroying the contingent remainders. 
 Sir Joseph Jekyll at first refused the application, saying there was no 
 precedent for such a direction ; but afterwards, a precedent being pro- 
 duced to him, he granted the relief, " it being," he said, "at the suit of 
 creditors, and for raising money iox payment of debts." 
 
 It should also be mentioned as another duty of this class of trustees, 
 that if an estate be limited to A. for life, remainder to trustees to pre- 
 serve contingent remainders, remainder to the first and other sons of A. 
 in tail, &c., should A. threaten to commit waste it would be the duty of 
 the trustees to file a bill for an injunction for the benefit of the contin- 
 gent remaindermen, (o) 
 
 II. Of the duties of trustees to preserve contingent remainders after 
 the eldest son has attained twenty-one. 
 
 Upon the occurrence of this event the joining or not joining of the 
 trustees in the destruction of the remainders ceases to be imperative, 
 and becomes matter of discretion : they are said to be honorary trus- 
 r*4.nQl ^^'^^){p) t^^^ is bound in honour only to *decide on the most pro- 
 *- J per and prudential course. However, the court, where applica- 
 tion was made to it, would always, as the general trustee in these cases, 
 exercise the discretion vicariously for the trustees 5(5) and, where the 
 trustees had abused the discretion, would, whatever might have been 
 the ancient doctrine,(r) hold them responsible as for abroach of trust. (s) 
 
 (m) See Barnard v. Large, 1 B. C. C. 536 ; Moody v. Walters, 16 Ves. 303. 
 
 (n) 1 P.W. 358. 
 
 (0) Perrot v. Perrot, 3 Atk. 95, per Lord Hardwicke ; Garth v. Cotton, 2 Ves. 
 555, jjer eundem. 
 
 {j}) See Barnard v. Large, 1 B. C. C. 535 ; Biscoe v. Perkins, 1 V. & B. 492 ; 
 Woodhouse v. Hoskins, 3 Atk. 24. 
 
 (?) See Moody v. Walters, 16 Ves. 307 ; Biscoe v. Perkins, 1 V. & B. 492. 
 
 (r) See Symance v. Tattan, 1 Atk. 614. 
 
 (8) Barnard v. Large, 1 B. C. C. 535, per Sir T. Sewell.
 
 OF CONTINGENT REMAINDERS. 359 
 
 The only case in which the court has directed the contingent limita- 
 tions to be destroyed, has been where the object of the parties was to re- 
 settle the property upon the marriage of the eldest son.[t) Thus in 
 Winnington v. Foley, it was reported by the master that the marriage of 
 the eldest son was beneficial, and that it was necessary a new settlement 
 should be made of the estate, and Lord Chancellor Parker said, " It 
 would be greatly mischievous if the trustee should stand out, and not 
 join with the father and son in cutting off the old settlement and making 
 a new one : it was plainly for the benefit of the family; for by the in- 
 tended settlement the son was to be but tenant for life, instead of tenant 
 in tail;" and so decreed the trustee to join in the recovery. (w) 
 
 Where the court has been called upon to disturb the settlement, and 
 for no other purpose than merely to disturb it, the application has of 
 course been refused. (y) 
 
 And a fortiori the court would not lend its sanction if the object of 
 the parties were such as the court ought positively to discourage, as 
 where the intention of defeating the settlement was to pay off the father's 
 incumbrances at the expense of the child. (ic) " The reason of making 
 the father tenant for ninety-nine years only," said Lord Hardwicke, " is 
 in order to preserve the estate : it may likewise be the design of such 
 ^settlements to prevent the father's influence over the son when t^^^i^q-i 
 of age, if the father was seised of the freehold, to get the son to L J 
 destroy the settlement. Here the intention is to pay the debts of the 
 father. It is the very case which was intended to be prevented by the 
 trust."(a;) And Sir T. Sewell observed, " Trustees to preserve contin- 
 gent remainders, who have the freehold in possession, are appointed for 
 two purposes — one to preserve the estate against the father's power to 
 destroy it, and the other to prevent the injury of any improper influence 
 of the father over the son to induce him to join in destroying the entail 
 created, in cases where he ought not to join.(y) 
 
 From the conduct of the court on these occasions, may be inferred the 
 duties imposed upon the trustees. However, should the trustees exer- 
 cise their discretion where the court would not have interfered, it does 
 not therefore follow that they are liable as for a breach of trust : it is one 
 thing for the court to say the object of barring the entail is not so clearly 
 beneficial as to justify the court in overturning the settlement ; it is 
 another to hold the object so absolutely mischievous as to make the trus- 
 tees responsible on the ground of a breach of duty.(2) 
 
 The preceding remarks have been general, without distinguishing 
 between marriage settlements and wills ; but upon principle, perhaps, 
 
 (t) Frewia v. Charleton, 1 Eq. Ca. Ab. 386 ; Townsend v. Lawton, Sel. Ch. Ca. 
 71; Barnard v. Large, 1 B. C. C. 536, per Sir T. Sewell; and see Symance v. 
 Tattam, 1 Atk. 614 ; Dormer v. Fortescue, 3 Atk. 129. 
 
 (u) 1 P. W. 536 ; and see Townsend v. Lawton, 2 P. W. 380. 
 
 (v) Barnard v. Large, 1 B. C. C. 534. 
 
 (w) Townsend v. Lawton, 2 P. W. 379 ; Woodhouse v. Hoskins, 3 Atk. 22. 
 
 (x) Woodhouse v. Hoskins, 3 Atk. 24. 
 
 (y) Barnard v. Large, 1 B. C. C. 535. 
 
 (z) See Biscoe r. Perkins, 1 V. & B. 491 ; Woodhouse v. Hoskins, 3 Atk. 24 ; 
 Barnard v. Large, 1 B. C. C. 535 ; Moody v. Walters, 16 Ves. 309.
 
 3G0 LEW IN ox THE LAW OF TKUSTS, ETC. 
 
 the two instruments ought not to be confounded. The object of a mar- 
 riao-e settlement is to preserve the estate in the family, and, were it not 
 for the rule against perpetuities, the limitation to the eldest son would 
 be not in tail; but for life, with remainder to his eldest son ; and if on 
 the marriage of the eldest son, the trustee has joined in a new settlement 
 for the purpose of further tying up the estate, he has undoubtedly acted 
 in conformity with the original intention. But in a will, as all the devi- 
 sees are volunteers, and the trustee does not hold upon trust for the first 
 tenant in tail more than for the successive remaindermen, if the trustee 
 j-jj, . - ^ ^ has *enabled an eldest son to get possession of the fee simple at 
 L -I the expense of the remainderman's interest, it might be argued 
 he has overstepped his duty, and ought to answer for it as for a breach 
 of trust. The distinction was thus observed upon by Sir T. Sewell, in 
 the case of Barnard v. Large. (a) " The trustee/' he said, '' though pro- 
 perly appointed to preserve contingent remainders only, is, in effect, a 
 trustee for all vested as well as contingent remainders, and has been so 
 considered ; but with respect to vested remainders if they have been to 
 remote relations upon settlements, where the persons to whom they are 
 limited are not the immediate objects of the parties, or where they stand 
 in opposition to the first tenant in tail desiring a reasonable benefit con- 
 sistent with the intention of the creators of the limitations, their preten- 
 sions have not been much considered : in a will all take as volunteers, 
 and are equally to be considered." 
 
 But this distinction, though supported by the authority we have men- 
 tioned, was not noticed by Lord Eldon in the discussion of Biscoe v. 
 Perkins, the case of a devise. ft) 
 
 The law upon the duties of trustees to preserve contingent remainders 
 has recently undergone great alterations. 
 
 By the 15th section of the fines and recoveries actM it is declared, 
 that every tenant in tail, whether m j^ossession , remainder, contingency, 
 or otherwise, shall have power to dispose of the lands entailed for an 
 estate in fee simple absolute ; but by the 40th and two following sections, 
 the disposition must be by deed inrolled, and must be made with the 
 consent of tlie protector of the settlement. 
 
 Under the old law, the key of the settlement was in the hands of the 
 person who was owner of the freehold in possession; but now, by the 
 32d section, any settlor entailing lands may appoint any number of per- 
 sons in esse, not exceeding three and not being aliens, to be protector of 
 the settlement during the period therein specified, and may perpetuate 
 the protectorship by means of a power of appointment of new protectors. 
 If the settlor has not taken advantage of this permission, then, by the 
 r*4121 ^'^^ section, if there be subsisting *under the settlement any 
 -J estate for years determinable on the dropping of a life or lives, 
 or any greater estate (not being an estate for years) prior to t^e estate 
 tail, the owner of such prior estate, or of the first of such prior estates 
 if more than one, or the person who icould have been owner had he not 
 disposed of his interest, is constituted the protector of the settlement ; 
 
 (a) 1 B. C. C. 535. (i) i y. & B. 485. 
 
 (c) 3 & 4 Will. 4, c. 74.
 
 OF CONTINGENT REMAINDERS. 
 
 361 
 
 but,^ by the 27th section, no dowress, hare trustee, heir, executor, or ad- 
 ministrator shall be protector. However, by the 31st section, it is en- 
 acted, that " where, ^lnder a settlement made before the passing of the 
 act, the person, who under the old law should have made the tenant to 
 the prcecipe, shall be a hare trustee, such trustee during the continuance 
 of the estate conferring the right to make the tenant to the prcecipe 
 shall be the protector ;" but, by the 36th section, the protector of a 
 settlement shall not be deemed to be a trustee in respect of his power of 
 consent, and a court of equity shall not control or interfere to restrain 
 the exercise of his power of consent, nor treat his giving his consent as 
 a breach of trust. 
 
 Under the provisions, therefore, of this act, as regards settlements 
 made since the passing of the act, a bare trustee cannot be protector in 
 any case ; and as regards settlements made before the passing of the act, 
 though the trustee may become protector by the operation of the 31st 
 section, he is not accountable to a court of equity for the exercise of 
 his discretion. 
 
 By the 7 & 8 Vict. c. 76, s. 8, it was declared that no estate should 
 be created by vfay of contingent remainder ; but that every estate which 
 before that time would have taken eifect as a contingent remainder, 
 should take effect as an executory devise, or if in a deed, as an estate 
 having the same properties as an executory devise, and that contingent 
 remainders already created should not be defeated by the destruction or 
 merger of the preceding estate. 
 
 But this sweeping clause was repealed by 8 & 9 Vict. c. 106, s. 1 ; 
 and in lieu thereof it was enacted (s. 8,) that a contingent remainder 
 should be deemed capable of taking effect, notwithstanding the determi- 
 nation by forfeiture, surrender or merger of any preceding estate of free- 
 hold, in *the same manner in all respects as if such determina- r^^A-,o-\ 
 tion had not happened. L '*^'^J 
 
 It is consequently now unnecessary to make use of any machinery for 
 preserving contingent remainders from destruction by the forfeiture, sur- 
 render, or merger of the preceding estate. But limitations to trustees, 
 during the lives of the tenants for life, are still frequently introduced in 
 settlements for the purpose of creating a check upon the tenants for life, 
 as, in cases of waste by them, it would be the duty of the trustees to in- 
 terfere as protectors of the remaindermen's interests. 
 
 Moreover, in the absence of such limitations, questions of considerable 
 difficulty would arise in reference to the right of protectorship of an en- 
 tailed estate, in cases where the estate which would otherwise confer the 
 protectorship became extinguished by forfeiture or othei'wise ; so that, 
 on the whole, the insertion of such limitations is conceived to be the 
 safer course. 
 
 It must, of course, be borne in mind, in connection with this question, 
 that contingent remainders are still liable to be defeated should the pre- 
 ceding life estate determine, in due course, before they become vested. 
 And, in this point of view, the limitation of life estates adequate to sup- 
 port the contingent remainders is still a matter of considerable impor- 
 tance.
 
 362 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 |-*414] ^CHAPTER XVI. 
 
 DUTIES OP TRUSTEES FOR SALE. 
 
 The subject of trusts for sale may be conveniently distributed into 
 three branches : first, The general duties of trustees for sale ; secondly, 
 The power of trustees to sign discharges for the purchase-money ; and, 
 thirdly. The disability of trustees to become purchasers of the trust pro- 
 perty. 
 
 SECTION I. 
 
 the general duties of trustees for sale. 
 
 It need scarcely be observed that trustees for sale, whether expressly 
 such, or only by implication, as persons enabled to sell by virtue of a 
 charge, (a) are authorized to enter into contracts without the previous 
 sanction of the court ;(i) but where a bill has been filed for the execu- 
 tion of the trust, that attracts the jurisdiction of the court, and the trus- 
 tee would not be justified in proceeding to a sale out of court.(c) 
 
 The trustee will remember that he is bound by his ofl&ce to bring the 
 estate to a sale under every possible advantage to his cestui que trusf,[d) 
 and in the case of several cestuis que trust, with a fair and impartial 
 attention to the interests of all the parties concerned. (e) If the trustee, 
 . or those who act *by his authority, fail in reasonable diligence in 
 L J the management of the sale, as if he contract under circum- 
 stances of haste and improvidence, or contrive to advance the interests 
 of one party at the expense of another, he will be personally responsible 
 for the loss to the suffering party ;(/) and the court, however correct 
 the conduct of the purchaser, will refuse at his instance to compel the 
 specific performance of the agreement. (^) In no case will the court en- 
 force the specific performance of a contract where a breach of trust is 
 involved, (/i) 
 
 A trustee who takes no active part in the business cannot excuse him- 
 self by saying he had nothing to do with the conduct of the other to 
 whom the management was confided ; for where several trustees commit 
 
 (a) Shaw v. Borrer, 1 Keen, 559. 
 
 (6) Earl of Bath v. Earl of Bradford, 2 Ves. 590, per Lord Hardwicke. 
 
 (c) Walker v. Smalwood, Amb. 676; and see Raymond v. Webb, Lofft, 66; 
 Drayson v. Pocock, 4 Sim. 283 ; Culpepper v. Aston, 2 Ch. Ca. 116, 223 ; and see 
 further, infra, pp. 523, 524. 
 
 {d) Downes v. Grazebrook, 3 Mer. 208, per Lord Eldon ; and see Matthie v. 
 Edwards, 2 Coll. 480. 
 
 (e) Ord v. Noel, 5 Mad. 440, per Sir J. Leach ; and see Anon, case, 6 Mad. 11. 
 
 (/) See Pechel v. Fowler, 2 Anst. 550. 
 
 [g) Ord V. Noel, 5 Mad. 440, per Sir J. Leach ; Turner v. Harvey, Jac. ITS, per 
 Lord Eldon; Bridger v. Rice, 1 'Jac. & Walk. 74; Mortlock v. Buller, 10 Ves. 
 292 ; and see Hill v. Buckley, 17 Ves. 394 ; White v. Cuddon, 8 CI. & Fin. 766. 
 
 {h) Wood V. Richardson, 4 Beav. 116, per Lord Langdale ; Fuller v. Knight, 6 
 Beav. 205 ; Thompson v. Blackstone, 6 Bear. 470.
 
 DUTIES OF TRUSTEES FOR SALE. 3(53 
 
 the entire administration of the trust to the hands of one, they are all 
 equally responsible for the faithful discharge of their joint duty by that 
 one whom they have substituted. (i) 
 
 The trustees will be allowed a reasonable time for disposing of the 
 estate, and though the instrument creating the trust direct them to sell 
 "with all convenient speed," that is no more than is implied bylaw, 
 and does not render an immediate sale imperative. (/i:) On the other 
 hand, if the trust be to sell " at such time and in such manner as the 
 trustees shall think fit," this will not authorize the trustees to postpone 
 the sale arbitrarily to an indefinite period; at all events the trustees can- 
 not by such postponement vary the relative rights of the tenant for life 
 and remaindermen, and so interfere with the settlor's intention. (?) 
 
 *If the trust be "with all convenient speed and within |-*j.ipT 
 five years" to sell the estate and apply the funds in payment of L J 
 debts, &c., the proviso as to the five years is considered as directory only, 
 and the trustees can sell and make a good title after the lapse of that 
 period. The court could scarcely impute to the settlor the intention that 
 the sale at the end of the five years should be made by the court, which 
 would be the case if the power in the trustees were extinguished. (?/i) 
 
 In a case where the trustees had endeavoured for some time to sell, 
 and not having succeeded, they agreed to execute a lease, the court, on 
 a bill filed by the trustees to compel specific performance, refused to de- 
 cree the lease, as the trust for sale did not j^rima facie imply a power to 
 grant leases. (ji) And so executors, although quasi trustees for sale, 
 may, under special circumstances, be justified in granting a lease ;(o) 
 but such an act is not regularly within their province, and therefore it 
 is incumbent on the persons taking a lease from them to show that it 
 was called for by the interests of the parties entitled to the property.(p) 
 
 A trust for sale, if there be nothing to negative the settlor's intention 
 to convert the estate absolutely, will not authorize the trustees to execute 
 a mortgage. (^q) But where an estate is devised to trustees, charged with 
 debts, and subject thereto, upon trust for certain parties, so that a sale, 
 though it may be required, is not the testator's object, the trustees may, 
 for the purpose of paying the debts, more properly mortgage than sell.(>-) 
 "A power of sale out and out," observed Lord St. Leonards, " for a pur- 
 pose, or with an object beyond the raising of a particular charge, does 
 not authorize a mortgage; but where it is for raising a particular charge, 
 and the estate is settled subject to that charge, then it may be proper, 
 under the circumstances, to raise the money by mortgage, and the court 
 
 (i) Oliver t. Court, 8 Price, 166, per Lord Chief Baron Richards ; In re Chert- 
 sey Market, 6 Price, 28o, per eundem. 
 
 (k) Buxton V. Buxton, 1 M. & C. 80 ; Garrett v. Noble, 6 Sim. 504 ; and see 
 Fitzgerald v. Jervoise, 5 Mad. 25 ; Vickers v. Scott, 3 M. & K. 500. 
 
 (l) See Walker v. Shore, 19 Ves. 391 ; Hawkins v. Chappell, 1 Atk. 623. 
 
 (??i) Pearce t. Gardner, 10 Hare, 287 ; and see CufiF v. Hall, 1 Jur. N. S. 973. 
 
 (n) Evans v. Jackson, 8 Sim. 217. 
 
 (0) Hackett v. M'Namara, LI. & G. Rep. t. Plunket, 283. 
 
 (p) Keating v. Keating, LI. & G. Rep. t. Sugden, 133. 
 
 (qj Haldenby v. Spafforth, 1 Beav. 390 ; Stroughill v. Anstey, 1 De G. M. & G. 
 635; Page v. Cooper, 16 Beav. 396; Devaynes v. Robinson, 5 Weekly Rep. 509. 
 
 (r) Ball v. Harris, 4 M. & Cr. 264.
 
 3G4 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 will support it *as a conditional sale, as something within the 
 L J power, and as a proper mode of raising the money.(s) 
 
 A testator devised an estate to trustees upon trust to apply the rents 
 for fifteen years in payment of incumbrances charged thereon, and if, by 
 any reason whatever, in the opinion of the trustees a sale should become 
 necessary, " they were authorized to sell." The purchaser objected that 
 the amount of the incumbrances would not justify a sale of the whole 
 estate, but it was held that the power of sale depended on the opinion 
 of the trustees, and the fact that they thought it necessary would be evi- 
 denced by the conveyance. (^) 
 
 A trust to raise money by mortgage will not authorize a sale, though 
 the latter may be more beneficial to the estate ; and the court itself has 
 no jurisdiction to substitute a sale for a mortgage. («) 
 
 A power to trustees to sell will not authorize a partition, though 
 whether a power to sell and exchange will do so remains at present 
 doubtful, (i;) 
 
 In settlements of real estate a power of sale is usually given to trus- 
 tees, to be exercised with the consent of the tenant for life, with a direc- 
 tion to lay out the proceeds, with all convenient speed, in another pur- 
 chase, and in the mean time to invest them upon some proper security. 
 For determining upon what occasions the trustees would be justified in 
 proceeding to a sale, it will be proper to notice, in the words of Lord 
 Eldon, the intention of the settlement in so framing the power : " The 
 most improvident course that could be adopted," he said, "would be to 
 intrust the tenant for life with the execution of the power; for it is 
 generally the interest of the tenant for life to convert the estate into 
 money, either with a view to sell another estate to his family, or for the 
 ordinary purpose of getting a better income during his life. The mode 
 of settlement, therefore, in such a case, is, that the trustees are to sell, 
 but not without calling to their aid all fair attention to the nature of the 
 r*4.1Sl subject and the convenience of the *property; they are to sell, 
 L J therefore, with the consent of the tenant for life; and as he is 
 a purchaser for the future family, the providence of the settlement re- 
 quires that the fact of such consent and approbation should be evidenced 
 by deed, &c. With that consent and approbation necessary to protect 
 the interest of the tenant for life, the trustees, bound to a due attention 
 to the interest of the children, have a power of selling for such price as 
 shall appear to them to be reasonable, that is, after they have with due 
 diligence examined." His lordship then proceeds to lay down the rule 
 that ought to regulate the conduct of trustees in the following terms : — 
 '^ The object of the sale," he said, " must be to invest the money in the 
 purchase of another estate, to be settled to the same uses, and they are 
 not to be satisfied with probability upon that, but it ought to be with 
 reference to an object at that time supposed practicable, or, at least, this 
 
 (s) Stroughill v. Anstej, 1 De G. M. & G. 645 ; Page v. Cooper, 16 Beav. 400. 
 (t) Rendlesham v. Meux, 14 Sim. 249. 
 (m) Drake v. Whitmore, 5 De G. & Sm. 619. 
 
 (y) Brassey v. Chalmers, 16 Beav. 223; 4 De G. M. & G. 528; Bradshaw v. 
 Fane, 2 Jur. N. S. 247.
 
 DUTIES OF TRUSTEES FOR SALE. 365 
 
 court would expect some strong purpose of family prudence justifying 
 the conversion, if it is likely to continue money."(?«) Sir W. Grant is 
 said to have concurred in the same sentiments, (x) so that clearly the 
 trustees would not be justified in selling to gratify the caprice or pro- 
 mote the exclusive interest of the tenant for life. It might happen that 
 particular circumstances might call for an immediate sale, as where an 
 extremely advantageous offer is made, or there is a prospect of great de- 
 terioration by abstaining from exercising the power ; but, generally 
 speaking, the trustees ought not to convert the estate without having 
 another specific purchase in view, and then not for the mere purpose of 
 conversion, but in the honest exercise of their discretion, for the benefit 
 of all parties claiming under the settlement. (y) The power of investing 
 the proceeds upon some security in the mean time was not meant to au- 
 thorize the continuance of the pi'operty as money, but only to meet the 
 exigencies of particular circumstances, as where the trustees are disap- 
 pointed of the contemplated new purchase, or the state of the title leads 
 to necessary delay. 
 
 *Trustees for sale at the request and by the direction of another ^^.^ (... 
 party, to be testified by writing, &c., cannot obtain a decree for L J 
 specific performance without first proving that the contract was entered 
 into at such request and by such direction, and that such request and 
 direction have, either before or since the contract, been testified by the 
 requisite writing. (z) 
 
 If an estate be vested in trustees upon trust for A. for life, and then 
 to sell, the trustees have no power to sell during the life of A., however 
 beneficial it may be to the parties interested in the trust. (a) 
 
 Where an estate is vested in two or more trustees upon trust to raise a 
 sum by sale or mortgage, and one of the trustees dies, the survivors or 
 survivor may sell or mortgage, unless there be words in the settlement 
 which expressly declare that the trust shall not be exercised by the sur- 
 vivors or survivor, for the execution of a trust is not treated on the foot- 
 ing of a power ; but the presumption is that, as the estate, so the discre- 
 tionary part of the trust passes to the survivors or survivor. (6) 
 
 The objection is sometimes taken that, where there is a power of ap- 
 pointment of new trustees, and one of the trustees has died and a new 
 trustee has not been substituted, the survivor is incompetent to execute 
 a valid conveyance. But the legal estate passes to the surviving joint 
 tenant at law,(c) and the trust, as we have seen, shifts to the survivor in 
 equity -.(cl) and though a proviso for appointment of new trustees may 
 certainly be so framed that the execution of the trust should, until a new 
 trustee has been substituted, remain in suspense,(e) yet the clause, as 
 
 (w) Mortlock T. Duller, 10 Ves. 308, 309. 
 
 (z) Lord Mahon v. Earl Stanhope, cited 2 Sug. Pow. 512. 
 
 (y) See Cowgill v. Lord Oxmantown, 3 Y. & C. 369 ; Watts v. Girdlestone, 6 
 Beav. 188 ; Marshall v. Sladden, 4 De Gex & Sm. 468. 
 
 (z) Adams v. Broke, 1 Y. & C. Ch. Ca. 627 ; see the decree at the foot of the 
 case, and see Blackwood v. Borrowes, 2 Conn. & Laws, 459. 
 
 (a) Johnstone v. Baber, 8 Beav. 233. (6) Lane v. Debenham, 11 Jiir. 1004. 
 
 (c) Doe V. Godwin, 1 D. & R. 259. (d) See supra, pp. 299, 300. 
 
 (e) See Foley v. Wontner, 2 Jac. & Walk. 246. 
 
 March, 1858.— 24
 
 366 LEWIN ox THE LAW 01 TRUSTS, ETC. 
 
 usually penned in settlements, is considered by the courts to be merely 
 of a directory character. (/) 
 
 In a mortgage to two persons where there is apovser of sah to " them, 
 their heirs and assigns," and one dies, the survivor may *sell -.(g) 
 L J and in a mortgage to A. in fee, with a power of sale to him, " his 
 heirs, administrators, executors and assigns," the administrator of the 
 assign of A., though the legal estate of the lands be not in himself, but 
 in a trustee for him under a conveyance from the heir of the assign, is, 
 too-ether with such trustee, an assign within the meaning of the power, 
 and can, therefore, sell.(/i) 
 
 lu respect of sales and mortgages for raising portions, if a specific sum 
 be civen to A., payable on her age of twenty-one years, or day of mar- 
 riao'e, the money cannot be raised until the interest has become vested ; 
 for should the fund created by the money raised prove deficient, the por- 
 tionist might still have recourse to the estate :(i\ and so where the trust 
 of a term was to raise 3000^. for younger children, payable at their respec- 
 tive ages of twenty-one years, or days of marriage, it was held the trustees 
 were not authorized, "when one child had attained his age of twenty-one 
 years, to raise the entire sum ; for the infant children could not be de- 
 prived of the real security for their shares. (/r) But from the manifest 
 convenience of raising the portions at once, it seems the court will lean 
 to that construction where any thing appears upon the instrument to con- 
 template such a course. Thus the trustees of a marriage settlement were 
 directed, after the death of the husband, to levy and raise by mortgage, 
 sale, or other disposition of the estate, if there should be more than three 
 children, the sum of 10,000^. for their portions, the shares of the sons to 
 be vested in, and payable to them at the age of twenty-one, and the shares 
 of the daughters at twenty-one or marriage; and it was provided that no 
 mortgage should he made until some one of the portions should become 
 payable; and four of the children had attained twenty-one and three 
 were under age ; the vice-chancellor said, ^' In this settlement there is a 
 clause that no mortgage is to be made until some one of the portions shall 
 become payable. The whole 10,000/. must therefore be raised at once. 
 r*4.-'>n ^^ ^^ objected that some of the shares may become ^diminished 
 L " J in amount : the answer to that is, that the court considers the in- 
 vestment in the three per cent, consols as equivalent to payment. If 
 there is any rise in the funds the children under ase will have the bene- 
 fit of it. (/) 
 
 A trustee for sale will of course inform himself of the real value of the 
 property, and for that purpose, will, if it be necessary, employ some ex- 
 perienced person to furnish him with an estimate, (m) 
 
 And as a trustee, like any ordinary vendor, is bound to make the pur- 
 
 (/) See supra, p. 301. [g) Hind v. Poole, 1 Kay & Johns. 383. 
 
 {h) Saloway v. Strawbridge, 1 Kay & Johns. 371. 
 (t) Dickenson v. Dickenson, 3 B. C. C. 19. 
 [k) Wynter v. Bold, 1 S. & S. 507. 
 [l) Gillibrand v. Goold, 5 Sim. 149. 
 
 (m) See Oliver v. Court, 8 Price, 165: Campbell v. Walker, 5 Yes. G80: Conollv 
 T. Parsons, 3 Ves. 628, note ; Sugd. Vend. & Purch. 55, 11th ed.
 
 DUTIES OF TRUSTEES FOR SALE. 3(37 
 
 chaser a good title,(n)it would be prudent, before proceeding to the exe- 
 cution of the trust, to take the opinion of some professional person whether 
 a good title can be deduced. Should the contract for sale be uncondi- 
 tional and the title prove bad, the purchaser in a suit for specific per- 
 formance would be allowed his costs against the trustee, (o) though the 
 trustee, where his conduct was excusable, might charge them upon the 
 trust estate under the head of expenses. 
 
 If lands be devised to trustees in trust to sell for payment of debts, 
 and subject to that charge be given to A. for life without impeachment 
 of waste, with remainders over, the trustees must not raise the money 
 by a sale of timber, which would be a hardship on the tenant for life, 
 but by a sale of part of the estate itself; and should they have impro- 
 perly resorted to a fall of timber, the tenant for life would have a charge 
 upon the lands to the amount of the proceeds. (p) And, on the other 
 hand, if there be a sum given to be laid out in the purchase of an estate 
 to be settled on A. for life without impeachment of waste, with remain- 
 ders over, the trustees would not be justified in purchasing a wood-estate, 
 so that the tenant for life when put in possession could, by a fall of the 
 timber, possess himself of a great part of the capital or corpus of the 
 fund. But it is presumed that the trustees might purchase an estate 
 where the timber standing formed no very considerable part *of r-if:iQo-, 
 the value, for it cau hardly be supposed that the trustees were L -1 
 meant to purchase land without a tree upon it. 
 
 The sale may be conducted by public auction or private contract, as 
 the one or the other mode may be most advantageous, according to the 
 circumstances of the case. (5) And it was held under the old Insolvent 
 Debtors' Act, 7 Geo. 4, c. 57, s. 20, directing a sale by auction, that the 
 assignees of an insolvent might sell a real estate by private contract, after 
 an ineffectual attempt to dispose of it by auction. (/•) And so, under the 
 subsequent Insolvent Debtors' Act (1 & 2 Yict. c. 110, s. 47, which di- 
 rects the assignees of insolvents to sell "in such manner" as the major 
 part, in value, of the creditors should direct,) in a case where the credi- 
 tors resolved that there should be a reserved bidding of 325/., and the 
 assignees sold by auction for 310?., the clause was held to be merely 
 directory, and that the deviation from the resolution of the creditors did 
 not, therefore, vitiate the sale.(.s) 
 
 The trustee cannot without responsibility delegate the general trust 
 for sale }(t) but there seems to be no objection to the employment of agents 
 by him, where such a course is conformable to the common usage of busi- 
 ness, and the trustee acts as prudently for the cestui que trust as he would 
 
 (n) White v. Foljambe, 11 Yes. 343, 345, per Lord Eldon : and see M'DonaM v. 
 Hanson, 12 Yes. 277 ; Yeud. & Purch. 61, 11th ed. 
 
 (0) Edwards v. Harvey, Coop. 40. 
 
 (p) Davies v. Westcomb, 2 Sim. 425. 
 
 {q) See Ex parte Dunman, 2 Rose, 66 ; Ex parte Hurlj, 2 D. & G. 631 ; Ex parte 
 Ladbroke, 1 Mont. & A. 384. 
 
 (r) Mather v. Priestmau, 9 Sim. 352. 
 
 (s) Wright V. Maunder, 4 Beav. 512 ; and see Sidebotham T. Barrington, 4 
 Beav. 110. 
 
 (t) Hardwick t. Mynd, 1 Anst. 109.
 
 368 LEWIN ON THE LAW OF TRUSTS,>ETC. 
 
 have done for himself.(«) But an agent for sale must not be allowed to 
 receive the purchase-money. 
 
 If the trustee think a sale by auction the more eligible mode, he must 
 see that all proper advertisements are made, and due notice given. It 
 was ruled in aa old case,(z;) that a cestui que trust could not, by alleging 
 the want of these preliminary steps, obtain an injunction against the 
 sale ; for, the trustee being personally responsible to the cestui que trust 
 for any consequential damage, the court could not regard it as a case of 
 irreparable injury. But, in a more recent case, where a mortgage deed 
 _ contained a power of sale, and the mortgagor, *alleging that due 
 L "" J notice had not been given, applied for an injunction against the 
 sale, though Sir John Leach in the first instance, on the assumption that 
 the potcer was vested in the mortgagee, (^ic^ refused the motion, consider- 
 ing that, as the plaintiff might give notice to the purchaser of the insti- 
 tution of the suit, it was better there should be an additional party to the 
 cause than a possible injury be risked to the mortgagee by the interrup- 
 tion of the sale, yet it afterwards appearing that the power was limited to 
 a trustee, and that the mortgagor had not been apprised of the intended 
 sale, his honor granted the injunction. <' It was the duty," he said, 
 " of the trustee to attend equally to the interests of both cestitis que trust, 
 and to apprise both of the intention of selling, that each might take the 
 means to procure an advantageous sale."(cc) 
 
 A trustee may sell subject to any reasonable conditions of sale,(?/) but 
 would not be justified in clogging the property with restrictions that 
 were evidently uncalled for by the state of the title. (2) It is not unusual 
 in penning a trust for sale to authorise the trustees expressly to insert 
 special conditions of sale ; but still this would be no warrant for the 
 introduction of stipulations plainly a breach of trust as not rendered 
 necessary by the state of the title, and calculated to damp the success of 
 the sale. 
 
 There seems to be no rule to prevent trustees from selling in lots, 
 should the auctioneer or other experienced person recommend it as the 
 most advisable course. (a) 
 
 It is certain that assignees of a hankrupt cannot buy in at the auction 
 without the authority of the creditors. Where the assignees had put up 
 the estate in two lots, and bought them in, and afterwards upon are-sale 
 there was a gain upon one lot and a loss upon the other, the balance 
 upon the whole being in favour of the estate, Lord Eldon compelled the 
 assignees to account for the diminution of price on the one lot, and 
 would not allow them to set off the increase of price on the other.(i) It 
 
 {u\ Ex parte Bekhier, Amb. 218 ; and see Ord v. Noel, 5 Mad. 438. 
 
 {v) Pechal v. Fowler, 2 Anst. 549. 
 
 (w) As to restraining a mortgagee from selling, see Matthie v. Edwards, 2 Coll. 
 465, S. C. on appeal nomine Jones v. Matthie, 11 Jurist, 504. 
 
 {x) Anon, case, 6 Mad. 10; Blennerbasset v. Day, 2 B. & B. 133. 
 
 (2/) Hobson V. Bell, 2 Beav. 17. 
 
 {2) Wilkins V. Fry, 2 Rose, 375 ; S. C. 1 Mer. 268. 
 
 (a) See Co. Lit. 113 a ; Ord v. Noel, 5 Mad. 438 ; and see Ex parte Lewis, 1 
 Gl. & J. 69. > i' ) 
 
 (i) Ex parte Lewis, 1 Gl. <fe J. 69 ; and see Ex parte Buxton, id. 355 ; Ex parte 
 Baldock, 2 D. & C. 60 ; Ex parte Gover, 1 De Gex, 349. 
 
 I 
 
 I 
 
 (
 
 DUTIES OF TRUSTEES FOR SALE. 359 
 
 *niay be thouglit perhaps tliat assignees acting under a statute p:^^^^^-, 
 have less discretionary power than belongs to ordinary trustees ; L "'J 
 but in Taylor v. Tabrum(c) the same principle was applied to trustees in 
 the proper sense of the word. An estate had been devised upon trust 
 to sell, and soon after the testator's death, the trustees put up the pro- 
 perty to auction, and GOOOZ. was bid, but one of the parties interested 
 desiring it might not be sold under 7000^., the property was bought in. 
 Four or five years afterwards they sold it for 3600^. and they were held 
 responsible for the consequent loss to the estate. It was said by Sir J. 
 Leach, that, " if the sale be made with all the circumstances of caution 
 which a provident owner would have applied in the case of his own 
 property, it could not be a breach of trust that the estate did not produce 
 a full price, for the very nature of an auction was that the adequacy of 
 price should be submitted to the chance of competition. "(t^) 
 
 Trustees for sale under an act of parliament are chargeable with 
 auction duty in the same manner as any other vendor.(e) 
 
 The court will not enforce a contract against trustees where it presses 
 with extreme hardship. Thus, where trustees, not being apprised of the 
 real amount of the incumbrances upon an estate, entered into a personal 
 engagement with the purchaser to clear off all incumbrances, the court 
 would not compel the trustees to fulfil their contract, but left the parties 
 to law,(/) and the bill was dismissed without costs. (,^) 
 
 The purchaser, after the contract, should not be let into possession of 
 the estate until the completion of the sale by payment of the full pur- 
 chase money. (A) 
 
 In drawing the conveyance, the word " grant" being commonly 
 (though erroneously) supposed to contain a warranty,(ij the trustee, 
 instead of " granting, bargaining, selling, and releasing," is made to 
 « bargain, sell, and release," with *the omission of the word r^j^^r-i 
 " grant :" and it is usual, in order to secure the trustees from L " J 
 the possibility of parting with any interest to which they may be entitled 
 beneficially, to insert in the operative part of the instrument the words 
 " according to their estate and interest as such trustees." 
 
 A trustee cannot be compelled to enter into any other covenant for 
 title than against incumbrances by his own acts. (A;) But it would be 
 
 (c) 6 Sim. 281. 
 
 {d) Ord V. Noel, 5 Mad. 440 ; but see Conolly v. Parsons, 3 Ves. 628, note. 
 
 (e) King v. Winstanley, 8 Price, 180. 
 
 (/) Wedgwood v. Adams, 6 Beav. 600. (ff) 8 Beav. 103. 
 
 (h) Oliver v. Court, 8 Price, 166, per Chief Baron Richards; see Browell v. 
 Reed, 1 Hare, 434. 
 
 (i) See Co. Lit. 384 a, note (1), Eargrave and Butler's Ed.; and see 8 & 9 V. 
 c. 106, s. 4. 
 
 {k) White V. Foljambe, 11 Ves. 345, per Lord Eldon ; Onslow v. Lord Londes- 
 borough, 10 Hare, 74, per Cur. ; Worley v. Frampton, 5 Hare, 560 ; Stephens v. 
 Hotham, 1 Kay & Johns. 571; and Page v. Broom, 3 Beav. 36. This is carried to 
 such an extent that, where a lessor grants a lease with a covenant for perpetual 
 renewal, devisees in trust of the lessor, though bound to grant a new lease, are 
 not bound to enter into a similar covenant. In these cases the court has, in or- 
 der to secure the lessee without making the trustees personally liable, declared 
 the right of the lessee to a perpetual renewal, and directed the new lease to con-
 
 370 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 prudent in trustees to apprise the public that they sell in that character, 
 that the purchaser may not say he was led to suppose from the advertise- 
 ments of sale, that the vendors were the beneficial proprietors, that the 
 contract must, therefore, draw with it the usual incidents, and that the 
 purchaser ought to have the benefit of the ordinary covenants. 
 
 Mortgagees with a power of sale are regarded as trustees, and covenant 
 only against their own acts.(?) To the extent of their mortgage money 
 they are beneficially interested, but not as owners of the estate, but only 
 as incumbrancers entitled to a charge. 
 
 It was laid down by Lord Eldon, that assignees of bankrupts -were 
 bound, in case they could not deliver up the title deeds, to furnish the 
 purchaser with attested copies and to covenant for the production of the 
 originals, the covenant to be confined to the period during which the 
 assignees should continue in office.(m) And trustees, where they retain 
 the title deeds, are equally required to give attested copies, and to cove- 
 nant for the production of the documents in the common form, with a 
 r*4.9fil *P^o'^iso? t^^* '^^ lawfully parting with the deeds, and obtaining 
 L J a similar covenant from the person to whom they are delivered, 
 the covenant shall be void. 
 
 In a sale of leaseholds by trustees who take under a settlement they 
 cannot, in any case, require from a purchaser a covenant of indemnity 
 against a breach of the covenants ; for, as regards themselves, they took 
 the lease by assignment, and therefore cease to be liable on the assign- 
 ment over; and, as regards a covenant for the protection of the settlor, 
 he has become a stranger by the execution of the trust deed, and the 
 trustees could neither, in the absence of an express stipulation, insist 
 upon a benefit to one with whom there is no existing privity, nor as they 
 are bound to make the sale the most beneficial to the cestuis que trust, 
 could they insert a condition in favour of a stranger, which might ope- 
 rate as a discouragement to purchasers. (??) But the executor of a lessee 
 upon assigning the term would be entitled to such a covenant, his testa- 
 tor's estate being liable under the original covenants of his testator. 
 
 Indeed an executor is, in such a case, entitled 'prima facie not merely 
 to the vendee's covenant to indemnify, but also where the estate is in 
 course of distribution to have a portion of the estate itself reserved for 
 the purpose of forming an indemnity fund,(o) though not so where the 
 risk is inconsiderable, (j?) But of course there can be no claim to an 
 indemnity where the testator's estate is not liable, as where the testator 
 himself was not a lessee, but the assignee of a lease who had entered into 
 
 tain a recital of the old lease, and of the declaration of the court, in obedience to 
 which the trustees purport to demise ; Copper Mining Company v. Beach, 13 Beav. 
 478 ; Hodges v. Blagrave, 18 Beav. 405. So, if A. agrees to grant a lease to B., 
 and B. dies, A. can compel the executors of B. to accept the lease, but the lease 
 is so framed that the executors of B. are guarded against all personal liability ; 
 Phillips V. Everard, 5 Sim. 102 ; Stephens v. Hotham, 1 Kay k Johns. 571 ; and 
 see Staines v. Morris, 1 V. & B. 12. 
 
 [l] Vend, and Pur. p. 61, 11th ed. {m) Ex parte Stuart, 2 Rose, 215. 
 
 {n) See Wilkins v. Fry, 1 Mer. 244. 
 
 (o) Cochrane v. Robinson, 11 Sim. 378; Fletcher v. Stevenson, 3 Hare, 360; 
 Dobson V. Carpenter, 12 Beavan ; Hickling v. Boyer, 3 Mac. & Gor. 635. 
 
 (i?) Dean v. Allen, 20 Beav. 1.
 
 DUTIES OF TRUSTEES FOR SALE. 371 
 
 no covenants.(5') And if the executor has assented to the bequest uncon- 
 ditionally, he has waived his claim to indemnity. M 
 
 In the assignment of a cliose in action, the trustee may be required to 
 give a power of attorney to receive the money and to sue in his name, but 
 this should be accompanied with a *proviso, that no action or r^ -q^-. 
 suit shall be commenced without the assignor's consent, or else L ^^ J 
 tendering a sufficient indemnity. (*■) 
 
 As in a mortgage accompanied with a power of sale, the mortgagee, 
 who is a quasi trustee, can under the power make a title to the purchaser 
 without the concurrence of the mortgagor,(A a clause in the mortgage 
 deed that the mortgagor shall, if required, be a party to the conveyance, 
 is considered a contract for the exclusive benefit of the mortgagee, and 
 not as imposing the necessity of procuring the mortgagor's consent to 
 the sale.(tt) 
 
 If the trustees have a power of signing discharges for the purchase- 
 money, the cesiuis que trust need not necessarily be made parties to the 
 conveyance ;(?;) but, as trustees are bound to covenant against their own 
 incumbrances only, the cestuis que trust, where it is practicable, are 
 usually made parties to the deed, that the purchaser may have the benefit 
 of their covenants for title according to the extent of their respective 
 interests. (to) In sales, however, under the direction of the Court of 
 Chancery, it is the rule not to make the cestuis que ti-ust parties ; for this 
 would involve the necessity of previously inquiring loho were beneficially 
 interested, and in what proportions, whereas it is a common proceeding 
 of the court to order a sale in the first instance, and leave the rights of 
 the respective parties to be settled by a subsequent adjustment. (x) 
 
 Where trustees sell by auction, the auctioneer, until the sale is com- 
 pleted, is the agent of both vendor and purchaser; but after completion 
 of the purchase he is the agent of the vendor only, and the trustees will 
 be answerable if by any unnecessary delay the deposit be lost.(y) 
 
 Trustees for sale and payment of debts are of course bound at any 
 time to answer inquiries by the author of the trust, or *the per- i-;;; 1.90-1 
 sons claiming imder him, as to what estates have been sold and L "''-' 
 what debts have been paid. (2) 
 
 When the afi"airs of the trust have been finally settled, the trustees 
 will be entitled to the possession of the vouchers as their discharge to 
 
 {q) Garratt v. Lancefield, 2 Jur. N. S. 177. N. B. It may be collected from the 
 judgment that the ordinaiy covenant to indemnify had not been entered into by 
 the testator on the occasion of the assignment to him. 
 
 (r) Shadbolt v. Woodfall, 2 Coll. 30. 
 
 (s) Ex parte Little, 3 Moll. 67. 
 
 {t) Corder v. Morgan, 18 Ves. 344; Clay v. Sharpe, cited id. 346, note (6) ; Al- 
 exander V. Crosbie, 6 Jr. Eq. Rep. 518. 
 
 (m) Corder v. Morgan, 18 Ves. 347, per Sir W. Grant. 
 
 (v) See Binks v. Lord Rokeby, 2 Mad. 227. 
 
 \w) See In re London Bridge Acts, 13 Sim. 176. 
 
 (x) Wakeman v. Duchess of Rutland, 3 Ves. 233, 504; affirmed in D. P. 8 B. 
 P. C. 145 ; Colston v. Lilley, 3 May, 1855, V. C. Stuart at chambers ; and see Loyd 
 V. Griffith, 3 Atk. 264. 
 
 (y) Edmonds v. Peake, 7 Beav. 239. 
 
 (z) Clarke v. Earl of Ormonde, Jac. 120, per Lord Eldon.
 
 372 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 the cestui que trust; but the cestui que trust will have a right to the in- 
 spection of them. (a) But not to copies without paying for them. 
 
 The land is discharged so soon as the fund has been actually raised, 
 even though the proceeds may be misapplied, and not reach their proper 
 destination. The remedy of the parties aggrieved is against the trustees 
 personally, and they have no lien upon the estate. (6) 
 
 SECTION II. 
 
 THE POWER OF TRUSTEES TO SIGN DISCHARGES FOR THE PURCHASE- 
 MONEY. 
 
 The power of trustees to sign discharges for the purchase-money 
 resolves itself into two questions : — First. Are the trustees justified in 
 making the sale ? and. Secondly. Supposing the sale itself to be proper, 
 is the purchaser bound to see to the application of his purchase-money ? 
 
 First. Are the trustees justified in proceeding to the sale ? 
 
 If a testator direct a sale of his real estate for payment of debts on the 
 insufficiency of the personal assets, the trustee ought not of course to 
 dispose of the realty, until it appears the personal fund is not equal to 
 meet the demands of the creditors. But the point we have here to con- 
 sider is, how will the purchaser be aifected, and, as he has no means of 
 investigating the accounts, it is held he is not to be prejudiced should it 
 be proved that eventually the personal is sufiicient.(c) All that could 
 r*i9Qn I'sasonably, and which perhaps would be required *of him, is, 
 L "^ -I that he should apply to the executor, where the trustee does not 
 sustain that character, and ask if the necessity of the sale has arisen. (cf) 
 However, a purchaser is prevented from dealing with the trustee out of 
 court, where a suit has been instituted for the administration of the 
 cstateYe) provided at least the suit be bona fide, and not collusive. (/) 
 But if a testator give a power of sale only to his trustees on the insuflGi- 
 ciency of the personal estate, then the purchaser must at his peril ascer- 
 tain that the power can be exercised. (^r) The difference between a trust 
 and a power is this. In the former case, the trustees, having the legal 
 estate, can transfer it to the purchaser by their ownership ; and equity, 
 as the purchaser had no opportunity of discovering the true state of 
 things, will not impeach his title. But where there is a power merely, 
 
 (a) Supra, note (z), per eundem. 
 
 [h] Anon. 1 Salk. 153 ; Juxon v. Brian, Pr. Ch. 143 ; Carter v. Barnardiston, 1 
 P. W. 505, see 518 ; Hutchinson v. Massareene, 2 B. & B. 49 ; and see Omerod v. 
 Hardman, 5 Ves. 736 ; Dunch v. Kent, 1 Vern. 2G0 ; Culpepper v. Aston, 2 Ch. Ca. 
 115; Harrison y. Cage, 2 Vern. 85. 
 
 (c) Culpepper v. Aston, 2 Ch. Ca. 115, per Lord Nottingham ; Keane v. Robarts, 
 4 Med. 356, per Sir J. Leach ; Co. Lit. 290 b, note by Butler, sect. 14 ; Shaw v. 
 Borrer, 1 Keen, 559 ; but see Fearne's P. W. 121. 
 
 {d) See Shaw v. Borrer, ubi supra. 
 
 (e) Culpepper v. Aston, 2 Ch. Ca. 116, 223, per Lord Nottingham; and see 
 Walker v. Smallwood, Amb. 676 ; and supra, p. 328. 
 
 (/) Culpepper v. Aston, 2 Ch. Ca. 116, per Lord Nottingham. 
 
 {g) Culpepper v. Aston, 2 Ch. Ca. 221 ; Dike v. Ricks, Cr. Car. 335 ; S. C. Sir 
 W. Jones, 327.
 
 DUTIES OF TRUSTEES FOR S^LE. 373 
 
 the insufficiency of tlie personal estate is a condition precedent; and if 
 it did not pre-exist in fact, the power never arose, and the purchaser 
 took nothing by the pretended execution of it. 
 
 Nor is a purchaser bound to ascertain whether more is offered for sale 
 than is sufficient to answer the purposes of the trust ; for how is the pur- 
 chaser to know what exact sum is wanted, without investigating the 
 accounts ? Besides, the trustees are entitled, as incident to their office, 
 to raise their costs and expenses. ^A) 
 
 But where a testator directed, on the insufficiency of his personal 
 estate, a sale in the first instance of A., and should that not answer the 
 purpose, then of B., and the trustees, yi/iteen years after the testator's 
 death, contracted for the sale of B. first, and then filed a bill for specific 
 performance, alleging the existence of debts, and that A. was already in 
 mortgage, or otherwise charged to the full value, the court, considering 
 it was unlikely that creditors would have lain by for so many years, and 
 that the non-existence of debts might therefore be suspected, and that 
 what was ground for suspicion might be deemed notice to a purchaser, 
 determined against the title. (i) 
 
 *If an estate be devised, charged with legacies payable at 
 
 [*430] 
 
 twenty-one, the devisee cannot sell the land discharged of the 
 legacies until the time of payment has arrived. The execution of the 
 trust is uncalled for till that period, and it cannot be anticipated for the 
 convenience of other parties. Should the legacies be raised, and in- 
 vested by anticipation, the funds might afterwards become deteriorated, 
 and the legatees be defrauded of the bounty intended them.(^-) But 
 where a term was created, and the trustees were directed to raise, if 
 there should be one child, 6000/. ; if two, 8000?. ; if three or more, 
 10,000?. ; and it was provided that no mortgage should be made until 
 some one of the said portions should hecome payahle ; there being seven 
 children, four of whom were of age, and three minors, it was held that 
 the trustees might raise the whole 10,000/. (/) 
 
 Secondly. Supposing the sale to be proper, is the purchaser bound to 
 see to the application of his purchase-money ? 
 
 It is a rule requiring no elucidation, that if a person have in his hands 
 money or other property to which another person is entitled, he cannot 
 discharge himself from liability but by payment or transfer to the rightful 
 owner. If an estate be vested in A. upon trust to sell and divide the 
 proceeds between B. and C, in a court of law the absolute ownership is 
 in A., and his receipt, therefore, will discharge the purchaser ; but in 
 equity B. and C, the cestuis que trust, are the true and beneficial pro- 
 prietors, and A. is merely the instrument for the execution of the settlor's 
 purpose. The receipt, therefore, to be efi'ectual, must be signed by B. 
 and C. ;(m) and the power of the vendor to sign a discharge for the pur- 
 chase-money is a question, not of conveyance, but of title.(ii') 
 
 Such is the jj^ma facie rule in trusts; but in every instance it is 
 
 {h) Spalding v. Shalmer, 1 Vera. 301. {i) Pierce v. Scott, 1 Y. & C. 25t. 
 
 \k) Dickenson v. Dickenson, 3 B. C. C. 19. 
 
 {I) Gillibrand v. Goold, 5 Sim. 149. 
 
 {m) See Weatherby v. St. Giorgio, 2 Hare, 624. 
 
 \n) Forbes v. Peacock, 12 Sim. 521.
 
 374 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 liable to be controlled and defeated by an intention to the contrary col- 
 lected from the instrument creating the trust, whether that intention be 
 expressed or implied. 
 
 The former is the case, if the settlor direct in express terms 
 [ 'idlj ^^j^^j. ^^^ receipts of A., the trustee, shall discharge the pur- 
 chaser from seeing to the application of the purchase-money; for B. and 
 (J. cannot at the same moment claim under and contradict the instru- 
 ment — they cannot avail themselves of the sale, and reject the proviso 
 affecting the receipt, and the words in the ordinary power of attorney, 
 viz. " to sign discharges for the money to be recovered under the power, 
 and to do all other acts as the principal might have done," have been 
 held to carry such a direction(o) where not controlled by a subsequent 
 receipt clause tending to negative that intent.(p) 
 
 In what cases the like intention will be implied, has never been satis- 
 factorily ascertained. However, two principles appear to be the basis 
 upon which most of the distinctions taken by the courts have been 
 founded. 
 
 1. In the creation of a trust for immediate sale, it is clearly implied, 
 that a legal and equitable discharge for the purchase-money shall be 
 signed hy some one at the time of the sale. There can be no conveyance 
 of the estate without payment of the money, and there can be no such 
 payment without a complete discharge. Should the settlor appear to have 
 contemplated a sale at a time when the cestuis que trust, or some of them, 
 were either not in existence, or not of capacity to execute legal acts, the 
 intention must be presumed that the receipts of the trustees should be a 
 release to the purchaser. 
 
 Thus, where a deed was executed in India for payment of debts, with 
 a proviso that creditors in India should be allowed six months to come 
 in, and those in Europe eighteen months, and if any were under disa- 
 bility, they should be further allowed the like periods from the time 
 the disability ceased. Sir W. Grant said, " the deed very clearly confers 
 an immediate power of sale for a purpose that cannot be immediately 
 defined. It is impossible to contend that the trustees might not have 
 sold the whole property at any time they thought fit after the execution 
 of the deed, and yet it could not be ascertained, until the end of eighteen 
 months, who were the persons among whom the produce of the sale was 
 r*l^9i to be distributed. If the *sale might take place at a time when 
 L "^-l the distribution could not possibly be made, it must have been 
 intended that the trustees should of themselves be able to give a discharge 
 for the produce, for the money could not be paid to any other person 
 than the trustees." (§■) 
 
 So where A. devised certain lands to his children, "the same to be 
 sold when the executors and trustees of his will should see proper, and 
 the purchase-money to be equally and severally divided amongst his 
 above-named children," Sir J. Leach said, " It is plain the testator 
 intended that the trustees should have an immediate power of sale. 
 
 (o) Binks v. Lord Rokeby, 2 Mad. 221, see 238, 239, 
 
 (p) Brasier v. Hudson, 9 Sim. 1. 
 
 (?) Balfour v. Welland, 16 Ves. 151, see 156.
 
 DUTIES OF TRUSTEES FOR SALE. 375 
 
 Some of tlic children were infants, and not capable of signing receipts. 
 I must therefore infer, that the testator meant to give to the trustees the 
 power to sign receipts, being an authority necessary for the execution of 
 his declared purpose. "(r) 
 
 As to cesfuis que trust who, after the date of the instrument, go out 
 of the jurisdiction the general rule does not apply, for it cannot be said 
 that the settlor meant the trustees to sign receipts for them, the presump- 
 tion being the other way ; but though a power of signing receipts cannot 
 in this case be implied, it may be contended that the rule of equity 
 obliging a purchaser to see to the application of his purchase-money, 
 operates only where the cestui que trust is accessible to receive the money, 
 and that when he is abroad the purchaser may pay to the trustee, and 
 need not look to the application. Of this opinion appears to be Lord St. 
 Leonards, who remarks, " The receipt of the trustee would certainly have 
 been a sufficient discharge for the shares of the infant, and also, it is con- 
 ceived, for the share of the cestui que trust who was abroad. It would 
 be difficult to maintain that the absence of a cestui que trust in a foreign 
 country should, in a case of this nature, impede the sale of the estate. "(s) 
 
 2. If a sale be directed, and the proceeds are not simply to be paid 
 over to certain parties, but there is a special trust annexed, the presump- 
 tion must be that the settlor meant to *confide the execution of j.^ ,00-1 
 the trust to the hands of the trustee, and not of the purchaser.(^) •- ' J 
 
 Thus, Lord Thurlow, where a settlement contained a power of sale, 
 and it was directed that the trustees should receive the purchase-money, 
 and lay it out on a new purchase to the like uses, and till that was done 
 should invest it in government funds, observed, '^ As to the power which 
 the trustees have of giving a discharge, it is true, that when land is to 
 be sold, and a particular debt is to be paid with it, the purchaser is bound 
 to see to the application of the purchase-money. But in cases where 
 the application is to a payment of debts generally, or to a general laying 
 out of the money, I know of no case which lays down, or any reasoning 
 in any case which goes the length of saying, that a purchaser is so 
 bound. "((A So where a trust was created for payment of debts. Sir W. 
 Grant, in holding the receipt of the trustees to be a release to the pur- 
 chaser, said, <'it was evident from the whole tenor of the deed that the 
 parties contemplated and intended that all the money to be produced by 
 the sale should come into the hands of the trustees ; should be managed 
 by them until distribution ; should be placed out in their names ; and 
 
 (r) Sowarsby v. Lacy, 4 Mad. M2 ; Lavender v. Stanton, 6 Mad. 4G ; and see 
 Breedon v. Breedon, 1 R. & M. 413 ; Cuthbert v. Baker, Vend. & Purch. 842, 843, 
 11th ed. (s) Vend. & Purch. 844, Uth ed. 
 
 (t) See Glynn v. Locke, 2 Drur. & War. 11 ; Ford v. Ryan, 4 Ir. Ch. Rep. 342. 
 
 (m) Doran v. Wiltshire, 3 Sw. 609. In Cox v. Cox, 1 Kay & John. 251, Vice- 
 Chancellor Wood held, that powers of sale and exchange do not imply a power of 
 signing receipts ; that the latter power was by no means one inserted as of course 
 in legal instruments, but often excluded, and when excluded was never implied, 
 except under very special circumstances. The question in that case arose upon 
 the construction of a will which gave to the tenants for life the like powers of 
 selling and exchanging as were contained in a settlement referred to, and in which 
 were, not only powers of sale and exchange, but also a power of signing receipts, 
 and the vice-chancellor was of opinion that the powers of sale and exchange only, 
 without the power of signing receipts, were incorporated by reference.
 
 37G LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 should by them be ultimately distributed."(v) And again, where a person 
 directed his executors to convert all his real and personal estate into 
 money, and lend the same upon good security upon trust to pay the 
 interest to his wife for life, with remainder over, Sir J. Leach held, 
 << that the authority given by the testator to lay out and invest the money 
 was an authority to do all acts essential to *the trust, and neces- 
 L J sarily therefore to give discharges to the borrowers of the 
 money." (w;) And an opinion of Mr. Booth shows the practice of the 
 profession, even in his time, to have been in conformity with these doc- 
 trines. A testator had directed his trustees to sell and invest the pro- 
 ceeds upon the trusts thereinafter mentioned, and then gave his wife an 
 annuity of 50^. a year, for her life, to be paid out of the proceeds, and, 
 subject thereto, gave the fund to his son ; but in ease of his death under 
 twenty-one, to the person entitled to his Taunton lands. Mr. Booth 
 wrote, <' I am of opinion, that all that will be incumbent on the pur- 
 chaser to see done will be to see that the trustees invest the purchase- 
 money, in their names, in some of the public stocks or funds, or on 
 government securities, and in such case the purchaser will not be answer- 
 able for any misapplication, after such investment of the money, of any 
 moneys which may arise by the dividends or interest, or by any disposi- 
 tion of such funds, stocks, or securities, it not being possible that the 
 testator should expect from ani/ purchase?- any further degree of care or 
 circMmspection than during the time that the transaction for the pur- 
 chase was carrying on, and therefore the testator must be supposed to 
 place his sole confidence in the trustees, and this is the settled practice in 
 these cases, and I have often advised so much, and no more, to be done." 
 And in this opinion Mr. Wilbraham also concurred. (cc) 
 
 To the principle under consideration must be referred the well-known 
 rule, that a purchaser is not bound to see to the application of his money 
 where the trust is for payment of debts generally ; for to ascertain who 
 are the creditors, and what is the amount of their respective claims, is 
 matter of trust involving long and intricate accounts, and requiring the 
 production of vouchers, which the purchaser would have no right to 
 
 . require. (y) So if the trust be for payment of a particular *debt 
 L -I named, and of the testator's other debts. (^) So if the trust 
 
 {v) Balfour v. Welland, 16 Ves. 511, see 157. 
 
 {w) Wood V. Harman, 5 Mad. 368 ; Locke v. Lomas, 5 De Gex & Sm. 326. 
 
 (x) 2 Cas. & Op. 114. 
 
 \y) Forbes v. Peacock, 11 Sim. 152 ; and see S. C. 12 Sim. 528; 1 PhiU. 717 ; 
 Stroughill V. Anstey, 1 De G. M. & G. 635; Dowling v. Hudson, 17 Bear. 248 ; Cul- 
 pepper V. Aston, 2 Ch. Ca. 223 ; Watkins v. Cheek, 2 S. & S. 205, per Sir J. Leach ; 
 Anon. Mose. 96 ; Hardwick v. Mynd, 1 Anst. 109 ; Johnson v. Kennett, 3 M. & K. 
 630, per Lord Lyndhurst ; Rogers v. Shillicorne, Amb. 189, per Lord Hardwicke ; 
 Walker v. Smallwood, id. 677, per Lord Camden ; Barker v. Duke of Devonshire, 
 3 Mer. 310 ; Abbot v. Gibbs, 1 Eq. Ca. Ab. 358 ; Binks v. Rokeby, 2 Mad. 238, 
 per Sir T. Plumer; Dunch v. Kent, 1 Vern. 260, admitted; Elliot v. Merryman, 
 Barn. 78; Smith v. Guyon, 1 B. C. C. 186, and cases cited, ib.note; Ithell v. 
 Beane, 1 Ves. 215, per Lord Hardwicke ; Lloyd v. Baldwin, ib. 173, j^er eundem ; 
 Dolton V. Hewen, 6 Mad. 9; Ex parte Turner, 9 Mod. 418, per Lord Hardwicke ; 
 Gosling V. Carter, 1 Coll. 644; Eland v. Eland, 1 Beav. 235; S. C. 4 M. & Cr. 
 420; Jones v. Price, 11 Sim. 557; and see Currer v. Walkley, 2 Dick. 649, cor- 
 rected from Reg. Lib. 3 Vend, and Purch. 168, 10th ed. 
 
 [z) Robinson v. Lowater, 17 Beav. 592; 5 De Gex, Mac. & Gord. 272.
 
 DUTIES OF TRUSTEES FOR SALE. 377 
 
 be for payment of debts and legacies, the purchaser is equally protected ; 
 for as the discharge of the debts must precede that of the legacies, and 
 the purchaser is not called upon to mix himself up with the settlement 
 of the debts, he is necessarily absolved from all liabilities in respect of 
 the legacies. (cf) But where the trust is for payment of imrticidar or 
 scheduled debts only,(6) or of legacies only,{<-) then, as there is no trust 
 to be executed requiring time or discretion, but the purchase-money is 
 simply to be distributed amongst certain parties, there is no reason why 
 the purchaser should not, under the general rule, be expected to see that 
 the purchase-money finds its way into the proper channel. And the 
 purchaser, where legacies only are charged, is still bound to see to the 
 application of his money, though by a late act,(^Z) the real estate of all 
 persons deceased since the 29th of August, 1833, is liable (in the hands 
 of the heir or devisee, but not by *way of lien to bind purchasers) ^^.^^-. 
 to the payment of debts generally, whether by specialty or simple L J 
 contract.(c) And even where the estate is subjected by the testator to a 
 trust for payment of debts generally, the purchaser will not be indemni- 
 fied by the receipt of the trustee if there be any collusion between 
 them;(/) or if the purchaser have notice from the intrinsic evidence of 
 the transaction that the purchase-money is intended to be misapplied ;(r/') 
 or if a suit has been instituted which takes the administration of the 
 estate out of the hands of the trustees. (/t) 
 
 And if the purchaser is dealing with trustees at a great distance 
 of time, and when the trust ought long since to have been executed, the 
 purchaser is bound to inquire and satisfy himself to a fair and reasonable 
 extent, that the trustees are acting in the discharge of their duty.(i) 
 
 It is evident, from what has been stated, that the exemption of the 
 purchaser from seeing to the application of the purchase-money depends 
 as a general rule upon the settlor's intention ; and if so, the question 
 must be viewed with reference to the date of the instrument, and not as 
 affected by circumstances which have subsequently transpired. '' The 
 deed," said Sir W. Grant, " must receive its construction as from the 
 
 {a) Rogers v. Skillicorne, Arab. 188 ; Smith v. Guyon, 1 B. C. C. 186; Jebb v. 
 Abbott, and Beynon v. Gollins, cited Co. Lit. 290 b, note by Butlfcr; Williamson 
 V. Curtis, 3 B. C. C. 96 ; Johnson v. Kennett, 3 M. & K. 630, per Lord Lyndhurst; 
 6 Ves. 654, note (a) ; Watkins v. Cheek, 2 S. & S. 205, per Sir J. Leach ; Eland 
 V. Eland, 1 Beav. 235 ; S. C. 4 M. & Cr. 420 ; Page v. Adam, 4 Beav. 269 ; Forbes 
 T. Peacock, 12 Sim. 528; 1 Phill. 717. 
 
 (6) Doran v. Wiltshire, 3 Sw. 701, per Lord Thurlow ; Smith v. Guyon, 1 B. C. 
 C. 186, per eundem, and cases cited, ib. note ; Rogers v. Skillicorne, Amb. 189, 
 per Lord Plardwicke ; Humble v. Bill, 1 Eq. Ca. Ab. 359, per Sir N. Wright ; 
 Anon. Mose. 96 ; Spalding v. Shalmer, 1 Vern. 303, per Lord North ; Abbot v. 
 Gibbs, 1 Eq. Ca. Ab. 358 ; Elliot v. Merryman, Barn. 81, per Sir J. Jekyll ; Binks 
 V. Rokeby, 2 Mad. 238, per Sir T. Plumer; Ithell v. Beane, 1 Ves. 215, per Lord 
 Hardwicke; Lloyd v. Baldwin, 1 Ves. 173, joer eundem; and sec Dunch v. Kent, 1 
 Vern. 260 ; Culpepper v. Aston, 2 Ch. Ca. 223. 
 
 (c) Johnson v. Kennett, 3 M. & K. 630, per Lord Lj-ndhurst; Ilorn v. Horn, 2 
 S. & S. 443. • (d) 3 & 4 W. 4, c. 104. (e) Horn v. Horn, 2 S. & S. 448. 
 
 (/) Rogers v. Skillicorne, Amb. 189, per Lord Hardwicke ; Eland v. Eland, 4 
 M. & Cr. 427, per Lord Cottenhara. 
 
 (g) Watkius v. Cheek, 2 S. & S. 199; Eland v. Eland, 4 M. & Cr. 427, per Lord 
 Cottenham ; and see Stroughill v. Anstey, 1 De G. M. & G. 648. 
 
 (/i) Lloyd V. Baldwin, 1 Ves. 173. 
 
 [i) Stroughill v. Anstey, 1 De G. .M. & G. 654, per Lord St. Leonards.
 
 378 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 moment of its execution. According to the frame of the deed, the pur- 
 chaser is or is not liable to see to the application of the money, and that 
 liability cannot depend on any subsequent eYent."(^) Thus, if a trust 
 be created for payment of debts and legacies, and the trustees, after 
 full payment of the debts contract for the sale of the estate, the pur- 
 chaser will not, upon this principle, be answerable for the application of 
 the money in payment of the legacies. And so it has been held in 
 several cases.(J) "It is said," observed Lord Lyndhurst, "that 
 L J the *debts having been paid out of the personal estate, and 
 nothing remaining but the legacies, the case falls within the general rule 
 applicable to cases where legacies alone are charged upon the real estate. 
 I find no authority for such a proposition. The rule applies to the state 
 of things at the death of the testator ; and if the debts are afterwards 
 paid, and the legacies alone are left as a charge, that circumstance does 
 not vary the general rule."(m) " Otherwise," said Lord Cottenham, 
 " the purchaser must, in every case, go into an investigation of the fact 
 of how far the debts have been discharged — exactly that liability to which 
 the law considers that he should not be subjected."(n) 
 
 In Forbes v. Peacock,(o) a testator directed his debts to be paid, and 
 gave the estate to his wife, (whom he appointed his executrix) for life, 
 subject to his debts and certain legacies, and empowered her to sell the 
 estate in her lifetime, and directed that if it were not sold in her life- 
 time, it should be sold at her death, and the proceeds applied in a man- 
 ner showing that they were intended to pass through the hands of the 
 executors, and the testator requested certain persons to act as executors 
 and trustees with his wife. The widow lived twenty-five years, and after 
 her death the surviving executor contracted for the sale of the estate. 
 The vice-chancellor of England held that, after so long lapse of time 
 from the testator's death, the purchaser had a right to ask if the debts 
 had been paid, and if he received no answer, it amounted to notice that 
 they had been paid, and he must see to the application of his purchase- 
 money. " My notion," he said, " of the law is, that where a testator has 
 directed all his debts to be paid, and then appoints certain persons his 
 executors and trustees, if, at any time after his death, those who have 
 the power sell any part of the testator's real estates, and nothing is said 
 about the matter, the purchaser will have a good title, because upon the 
 r*ziQ«T ^^^^ ^^ *''^^ ^^^^ there is a charge of debts, and non constat that 
 L -J all the debts have been paid. At the same time I think that if 
 it should appear to be highly probable, at the time when the executors 
 propose to sell, that the debts have been paid, a very important question 
 may arise, whether a good conveyence can be made by them alone, and 
 whether the concurrence of the persons interested in the proceeds of the 
 
 {k) Balfour V. Welland, 16 Ves. 156. 
 
 {I) Johnson v. Kennett, 3 M. & K. 624, reversing S. C. 6 Sim. 384 ; Eland v. 
 Eland, 4 M. & Cr. 420 ; Page v. Adam, 4 Bear. 269; Stroughill v. Anstey, I De 
 G. M. & G. 635. 
 
 (m) Johnson v. Kennett, 3 M. & K. 631. 
 
 In) Eland y. Eland, 4 M. & Cr. 428. 
 
 (o) 11 Sim. 152 ; 12 Sim. 528 ; 11 M. & W. 637 ; 1 Phill. Ill : see 1 De G. M. 
 & G. 650.
 
 DUTIES OF TRUSTEES FOR SALE. 379 
 
 sale may not be necessary. It strikes me, tterefore, that wlien the ob- 
 jection is made by the purchaser that the executors cannot make a good 
 title because all the debts have been paid, if the question is put hy him 
 simply, are there or are there not any debts remaining unpaid, he has a 
 right to an answer." (^p^ And on a subsequent day he observed, "Here 
 the purchaser has asked the executor whether any of the testator's debts 
 were unpaid at the date of the contract, and the executors refused to give 
 him an answer. Under these circumstances, if it should turn out that 
 all the debts were paid, I should hold that the purchaser had notice of 
 that fact, and that he was bound to see that his purchase-money was pro- 
 perly applied. (g-) What is the general principle ? The court has drawn 
 a distinction from an early time. It has said that if there is a mere direc- 
 tion to sell, and to divide the proceeds, the purchaser of the estate must 
 see to the application of the purchase-money, and the parties amongst 
 whom the proceeds are to be divided must give receipts to the purchaser. 
 But in a case where a testator charges his estate with debts, and directs 
 that there shall be a sale either by an express trust, or a general power, 
 the court says, it is quite impossible for the purchaser to ascertain who 
 are the creditors of the testator, and to see that they are paid, and if he 
 is not bound to look to the persons whose claims are first to be satisfied, 
 of course he is exempted from looking to the claims of the persons who 
 take as cestuis que trust. That is the principle of the rule, and I am yet 
 to learn how that principle does not apply to a case where the purchaser 
 is in effect informed that the debts have been paid ; and I consider that 
 what is stated to have taken place in this case between the vendor and 
 purchaser does amount to that."(r) 
 
 *It is evident that this doctrine was not in accordance with r:f; loq-i 
 former decisions, and the cause was carried upon appeal to the L J 
 lord-chancellor, when the decision below was reversed. Lord Lyndhurst 
 observed, " If the purchaser had notice that the vendor intended to 
 commit a breach of trust, and was selling the estate for that purpose, he 
 would, by purchasing under such circumstances, be concurring in the 
 breach of trust, and thereby become responsible. But assuming that the 
 facts relied upon in this case amount to notice that the debts had been 
 paid ; yet, as the executor had authority to sell not only for the payment 
 of debts, but also for the purpose of distribution among the residuary 
 legatees, this would not afford any inference that the executor was com- 
 mitting a breach of trust in selling the estate, or that he was not per- 
 forming what his duty required. The case then comes to this; if 
 authority is given to sell for the payment of debts and legacies, and the 
 purchaser knows that the debts are paid, is he bound to see to the 
 application of the purchase-money ? I apprehend not. In Johnson v. 
 Kennett, I held that the rule had reference to the death of the testator, 
 and therefore, that even supposing the debts were paid before the sale 
 took place, and that the legacies alone remained as a charge, that 
 circumstance would not vary the general rule. I see no reason to depart 
 from what I then stated. "(s) Lord St. Leonards, with reference to the 
 
 {p) 12 Sim. 537. (?) lb. 542. (r) lb. 546. 
 
 (s) 1 Phill. V17, and note, p. 722.
 
 380 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 judgment of Lord Lyndliurst, and to the note appended thereto by his 
 lordship's authority, observed, (^) " The case must stand upon one of two 
 o-rounds; — either that there are no debts within the knowledge of the 
 purchaser, and then it is indifferent whether there were no debts at the 
 death of the testator, or no debts at the time of the purchase, or, which 
 is more satisfactory, and open to no ambiguity, on the ground that when 
 a testator by his will charges his debts and legacies, he shows that he 
 means to entrust his trustees with the power of receiving the money, 
 anticipating that there will be debts, and thus providing for the pay- 
 ment of them. It is, by implication, a declaration by the testator that 
 _ he intends to entrust the trustees with the *receipt and applica- 
 L ^^^J tion of the money, and not to throw any obligation at all upon 
 the purchaser or mortgagee. That intention does notecase because there 
 are no debts. It remains just as much if there are no debts as if there 
 are debts. The consistent rule would be that if a trust be created for 
 payment of debts and legacies, the purchaser or mortgagee should in no 
 case (in the absence of fraud,) be bound to see to the application of the 
 money raised. To this rule," his lordship emphatically added, " I shall 
 adhere as long as I sit in this court." 
 
 The cases in which the the testator, instead of devising the estate 
 upon an exprees trust for payment of debts, creates a charge of debts 
 upon his real estates, seem to require a particular examination. It might 
 have been a simple and useful rule to hold under such circumstances 
 that the executor, and the executor only as the person who had adminis- 
 tration of the personal assets, should, by virtue of an implied power, sell 
 the real estate for payment of the debts ; but no such rule exists, and 
 we proceed to ascertain as far as we can by what principles the court 
 has been governed. 
 
 1. If a testator charge his real estate with debts, and then devises it 
 to trustees upon certain trusts, which do not include or perhaps negative 
 a power of sale, can the trustees give a good title to a purchaser ? It is 
 clear that the trustees and the executor can sell together,(») and the 
 question is, upon what principle this proceeds. Is the executor the 
 vendor, and if so, has he a legal power which enables him to pass the 
 estate at law independently of the trustee ? Vice-Chaneellor Bruce 
 seemed, on one occasion to think that the cases of Shaw v. Borrer and 
 v-^tA-\-[ Ball V. Harris might have been decided on this *footing,(v) and 
 L J some recent cases lean in the same direction. (?t") But the notion 
 
 {t) Stroughill v. Anstev, 1 De G. M. & G. 653 ; see Mather v. Norton, 16 Jur. 309. 
 
 (w) Shaw V. Borrer, 1 Keen, 559 ; Ball v. Harris, 8 Sim. 485 ; S. C. 4 Myl. & C. 
 264; Page v. Adam, 4 Beav. 269; and see Forbes v. Peacock, 11 Sim. 152 ; 12 
 Sim. 528; 11 M. & W. 630; 1 Phill. TIT. In Shaw v. Borrer, the trustees and 
 executors were co-plaintiffs, and the prayer of the bill was, that the purchase- 
 money might be paid to the executors. This, if done by the order of the court, 
 would indemnify the trustees ; but it does not follow that the trustees, on the 
 completion of the sale out of court, could have allowed the executors to receive 
 the money. The question to whom the money should be paid, was not adverted 
 to in the argument, nor does it appear to whom it was paid. 
 
 {v) Gosling V. Carter, 1 Coll. G49. 
 
 (w) See P..obinson v. Lowater, 17 Beav. 592 ; 5 De Gex, Mac. & Gor. 272 ; Eids- 
 forth V. Annstead, 2 Kay & Johns. 333; Wrigley v. Sykes, 21 Beav. 337 ; Storry 
 V. Walsh, 18 Beav. 568.
 
 DUTIES OF TRUSTEES FOR SALE. 381 
 
 of the executor passing the legal estate in sueh a case was never su"-- 
 gested until the last few years, and what was said by the Court of Ex- 
 chequer in Doe v. Hughes, was at least true at the time it was spoken, 
 viz., that not a single case could be produced in which a mere charge 
 had been held to give the executors a legal power.(x) Have the execu- 
 tors then an equitable power, and is the trustee who had the legal estate 
 bound to convey it as the executor directs ? This doctrine would be a 
 very rational one, but there is no trace of it in the cases themselves. 
 Apparently they were decided on the familiar principle, that in a court 
 of equity there is no difference between a charge of debts and a trust 
 for payment of debts,(?/) and that the trustees therefore took the legal 
 estate upon the trusts of the will, the first of which was to pay the tes- 
 tator's debts. It is certainly not a little remarkable that after an exami- 
 nation of all the authorities upon the subject, there does not appear to 
 be one in which the trustee has sold alone without the concui-rence of 
 the executor. This circumstance, however, may be easily accounted for, 
 as trustees of the will are almost invariably appointed executors also, and 
 where that is not the case, the purchaser naturally requires the concur- 
 rence of the executor, not on the ground that he is the vendor, but to 
 satisfy the purchaser that the sale of the real estate is bona fide from 
 the insufficiency of the personal assets. In some of the cases the court 
 has noticed, but not laid any stress upon, the circumstance of the per- 
 sonal representative concurring,(2;) or of the characters of trustee and 
 personal ^representative being combined, but in others that fact 
 has been passed over in silence as a mere accident, and the court L ^-1 
 has relied on the general doctrine that a trustee of the estate charo-ed 
 with debts could sell and sign a valid discharge for the purchase- 
 money.(a) In Doe v. Hughes,(6) the case most adverse to the powers 
 arising from a charge of debts, it was admitted that by a devise to trxis- 
 tees of the real estate, subject to a charge of debts, the trustees had 
 thereby imposed upon them the duty of raising the money to pay the 
 debts, and this was the opinion of Lord Hardwicke, as expressed in a 
 case which we do not remember to have seen cited. In Ex parte Tur- 
 ner,(c) where the estate had been given subject to debts, but no express 
 trust created for the purpose, he observed, << Where a devise is general 
 'in trust,' or 'subject to pay debts,' the devisee may sell or mortgage, 
 but lie must pay the money to the creditors of his devisor; but if he do 
 
 (z) Doe V. Hughes, 6 Exch. Rep. 231. 
 
 (y) Elliot V. Merryman, Barn. 81 ; Ex parte Turner, 9 Mod. 418 ; Jenkins v. 
 Hiles, 6 Ves. 654, note (a) ; Bailey v. Ekins, 7 Ves. 323 ; Ball v. Harris, 4 Mvl. & 
 C. 267 ; Wood v. White, 4 Myl. & C. 482; Commissioners of Donations v.'Wy- 
 brants, 2 Jones & Lat. 197. 
 
 (z) See Shaw v. Borrer, 1 Keen, 559 ; Forbes v. Peacock, 12 Sim. 537; and see 
 V. C. K. Bruce's remarks upon Shaw v. Borrer, and Ball v. Harris, in Gosling v. 
 Carter, 1 Coll. 649. But in Ball v. Harris, the V. C. of England observed, " It is 
 manifest that Harris (the trustee), who had the legal fee, was competent to mort- 
 gage that estate to any person who would advance money for the benefit of the 
 testator's estate," 8 Sim. 497 ; and it is equally clear that Lord Cottenham was of 
 opinion Harris was a trustee for payment of debts ; 4 M. & Cr. 267. 
 
 (a) See Ball v. Harris, at the passages referred to in last previous note : Forbes 
 V. Peacock, 12 Sim. 546. 
 
 (h) 6 Exch. Rep. 231. (c) 9 Mod. Rep. 418. 
 
 Maech, 1858.— 25
 
 382 LEWIN ON THE LAW OF TKUSTS, ETC. 
 
 not, tlie mortgagee is not to suffer, for in cases of these general devises 
 he is not obliged to see to the application of the money he advances. 
 But even in this case inconveniences often arise, for where the estate is 
 equitable assets, as it is where it is accompanied with a trust, the credit- 
 ors who have not specific liens upon the land ought to come in equally, 
 and pari passu. However, if the trustee prefer one creditor to another, 
 where he ought not, the remedy usually is against the trustee, and not 
 the lender of the money, for if the latter was to see to the application 
 of his money upon so general a trust, he could not safely advance his 
 money without a decree in this court." 
 
 If the trustees of an estate charged with debts can, by virtue not of 
 the express trust but of the trust implied by the charge, sell the estate, 
 and sign a receipt for the purchase-money, it would seem to follow that 
 they must not allow the proceeds to be paid to the executor as not being 
 r*/idQn *^^ proper hand to receive,(c?) *the executor in that character 
 L -I having no privity with the real estate. The necessity, if it exist, 
 of requiring the concurrence of the personal representative would often 
 lead to practical inconvenience, for on the death of the executor intestate 
 there would be no personal representative of the testator, and the per- 
 sonal assets having been exhausted, there would be no fund for taking 
 out letters of administration ; not to mention that should the executor 
 be held to have any concern with the proceeds of the real estate, by 
 virtue of the loill, the administrator, not being appointed by the will, 
 would not succeed to the power of the executor, which should be borne 
 in mind as of some importance in considering whether the sale is sub- 
 stantially that of the executor or of the trustee who takes subject to the 
 charge. 
 
 The practical result is, that in the present state of the law a purchaser 
 cannot be advised to accept a title even from trustees who sell iincler the 
 charge without the concurrence of the executor, but numerous purchases 
 must have been taken from the trustee only, and it is hoped, as is pro- 
 bable, that such purchases would be supported. 
 
 2. If a testator charge his debts and devise the estate subject to the 
 charge to A. and his heirs not upon trusts but for his own use, can the 
 beneficiary in this case make a good title? The preceding question is 
 in fact identical with this, for if where the express trust negatives a 
 sale the trustee can still make a good title, it is evident that he can only 
 do so by virtue of the charge. Any distinction between the two cases 
 would be in favour of the beneficial devisee, for if the trustee in defiance 
 of the express trust can sell, a fortiori the devisee can, who is fettered 
 by no such restriction. In both instances the charge operates as a trust 
 for payment of debts, and is attended with all the same consequences. 
 "A charge," said Lord Eldon, "is in substance and eff"ect pro tanto a 
 devise of the estate upon trust to pay the debts,"(c) and ''this," observed 
 Lord St. Leonards, on citing the dictum, '< is supported by the current 
 
 [d) See Gosling v. Carter, 1 Coll. 650, where V. C. Knight Bruce savs, " If pay- 
 ment ought to be made to one, it is not, necessarily, a good payment to make that 
 payment to one and another." 
 
 (e) Bailey v. Ekins, 7 Ves. 323.
 
 DUTIES OF TRUSTEES FOR SALE. 383 
 
 of authorities. "(/) It is clear tliat the devisee *can, where he i-^^j^j^-i 
 also fills the character of executor, make a good titleJr/) and in L J 
 some of the cases the court did not in terms rely on the characters being 
 combined,(/t) but it is singular that no authority can be found in which 
 the question whether the devisee alone can make a good title has arisen. 
 
 In the Court of ExchequerrA it was said that in a devise to trustees, 
 subject to a charge of debts, the trustees could sell; but that a charge 
 in the hands of a devisee if the lands were devised, or in the hands of 
 the heir-at-law if the lands descended, was a charge only in equity. 
 The court was there considering, more particularly, the question of legal 
 powers; but if it was intended to be said that a devisee, subject to a 
 charge, could not sell and sign a receipt for the money, the doctrine is 
 inconsistent with the nature of a charge of debts in equity as commonly 
 understood. The prevalent opinion hitherto is believed to have been 
 that a devisee subject to debts could sign a receipt for the purchase- 
 vaon.ey,{Jc\ and the cases in which the court has upheld purchases from 
 a devisee with the concurrence of the executor, but without relying upon 
 such concurrence, would be a trap for purchasers should the court now 
 refuse to uphold a purchase from a devisee only. Here, again, the prac- 
 tical result is that a purchaser cannot be advised at present to accept a 
 title from the devisee without the concurrence of the executor, though 
 in the author's opinion the devisee could give a good title. 
 
 3. If a testator charge his debts on the real estate, and does not devise 
 the estate at all, but allows it to descend to the heir, can the heir sell 
 and sign a receipt for the purchase-money ? It appears to be clear that 
 he cannot, for he takes nothing under the will, and cannot therefore be 
 regarded as a person constituted by the testator the trustee by implica- 
 tion for payment of debts ;(/) he can pass the legal estate, but he could 
 *not sign a receipt; i. e., if the heir misapplied the money the r:};i_i--| 
 creditors might still come upon the estate. L -" 
 
 But in this case, if the heir is disabled from selling, can the executor 
 sell ? for otherwise the charge of debts amounts to a direction for a chan- 
 cery suit. The legal question arose in Doe v. Hughes,(m) before tlie 
 Court of Exchequer. A testator charged his Bala houses with his 
 debts, and died intestate as to them, and appointed his wife his execu- 
 trix. The executrix, in order to meet the debts of the testator, ap- 
 pointed and conveyed the Bala houses to John Jones in fee in trust, by 
 sale or mortgage, to raise money for payment of the debts. The heir of 
 the testator brought ejectment, and recovered. The way in which the 
 
 (/) Commissioners of Donations v. Wybrants, 2 Jon. & Lat. 198. 
 
 [g) Elton T. Harrison, 2 Swan. 276, note; Elliot v. Merryman, Barn. 78; Dol- 
 ton V. Young, 6 Madd. 9 ; Johnson v. Kennet, 6 Sim. 384; 3 .Myl. & K. 624; Eland 
 V. Eland, 1 Beav. 235, 4 Myl. & C. 420 ; Page v. Adam, 4 Beav. 269. 
 
 iji) Elliot V. Merryman, Dolton v. Young, Johnson v. Kennet, Eland v. Eland, 
 ubi supra. 
 
 {i) Doe V. Hughes, 6 Exch. Rep. 231. 
 
 ik) See the cases cited in note [y), p. 441, supra. 
 
 {I) See Gosling v. Carter, 1 Coll. 650, where the V. C. said that the intention 
 to be collected was, that the heir at law should have nothing to do with it; Doe 
 v. Hughes, 6 Exch. Rep. 231 ; Forbes v. Peacock, 11 Mee. & W. 637, 638. 
 
 {m) 6 Exch. Rep. 223.
 
 384. LEWIN OK THE LAW OF TRUSTS, ETC. 
 
 power was executed was peculiar, as not being a sale or mortgage in 
 itself, but the question discussed and decided was, whether, in such a 
 case, the executrix had a power of sale or mortgage, and the court held 
 that a charge had no operation at law hut must he enforced in equity. 
 This decision has been found much fault with. The master of the rolls 
 said that before the case in the Exchequer he had considered the law to 
 be that a charge of debts gave the executors an implied power of sale.(?i) 
 Otherwise, it is said, in the case of a charge where the estate descends, 
 there can be no sale without the aid of the court. But this does not 
 appear to follow. If a testator expressly direct that his estate shall be 
 sold (without naming the person,) and the fund is to be distributed in a 
 way in which the executors alone can distribute it, a power of sale is 
 given to the executors by implication over the legal estate even in courts 
 of law.(o) By analogy to this, where there is no direction to sell, but 
 only a chal-ge of debts, this last, though an umbra in a court of law, 
 creates an equitable power of sale or mortgage in the view of a court of 
 equity, i. e., the executor may contract for the sale, and on the accept- 
 ance *of the title by the purchaser, the person in whom the legal 
 L J estate is vested will, as being a trustee for the executor, be com- 
 pellable to convey as the executor directs, and if he refuse, the legal 
 estate maybe vested in the purchaser by the aid of the Trustee Acts.(p) 
 In Gosling v. Cavter,[p2)) Vice-Chancellor K. Bruce declined to give an 
 opinion whether a mere charge of debts gave to the executors a power of 
 sale either at law or in equity, but would not compel a purchaser to take 
 the title from the executor without the concurrence of the heir-at-law. 
 In Robinson v. Lowater,(2) the legal estate was already in the purchaser, 
 so that the legal question did not arise, but it was held that the execu- 
 tors had given the purchaser a good title. In Eidsforth v. Armstead,(r) 
 Vice-Chancellor Wood professed to follow Robinson v. Lowater, and held 
 the power of sale to be, according to the report, in the trustees, but which 
 appears to be a mistake for the executors. The surviving trustee had 
 devised the trust estates, and the devisee therefore could not sell, but 
 the surviving trustee was also surviving executor, and appointed the de- 
 visee his executor, and in the character of executor the devisee might 
 be thought to represent the original testator, though it is by no means 
 
 (n) Robinson v. Lowater, 17 Beav. 601; and see Wrigley v. Sykes, 21 Beav. 
 337 ; Storry v. Walsh, 18 Beav. 568. 
 
 (o) Forbes v. Peacock, 11 M. & W. 630; Tylden v. Hyde, 2 Sim. & St. 238; 
 Bentbam v. Wiltshire, 4 Madd. 44. 
 
 (p) In reference to obtaining a vesting order in such a case, see Re Wise, 5 De 
 Gex & Sm. 415. 
 
 {pp) 1 Coll. 650, 652. 
 
 [q) 17 Beav. 592; 5 De G. M. & G. 272 ; and see Storry v. Walsh, 18 Beav. 568. 
 
 (r) 2 Kay & Johns. 333. It does not appear how the purchaser had got or was 
 to get the legal estate, whether from the executor, as having a legal power, or 
 from the trustee, on the construction that the legal fee simple vested in the trustee 
 under the will, or from the trustee, as having the legal estate during the life of H. 
 Toulmin, with the concurrence of H. Toulmin, as having the legal estate in re- 
 mainder, so as to extinguish his power of appointing by will. The case loses 
 much of its force from the amicable manner in which the point was submitted to 
 the court.
 
 DUTIES OF TRUSTEES FOR SALE. 3S5 
 
 clear that even then the power of sale would pass to him.(.s) lu Wrig- 
 ley V. Sykes,(<) the master of the rolls decided that the executors could 
 contract for the sale of the estate, but guarded himself by saying that 
 the court, as far as it could, would certainly secure to the purchaser a 
 good legal estate when the conveyance was made. Thus the law stands 
 at present, and it is conceived that Doe v. Jones was a perfectly sound 
 decision upon the legal question, and that no inconvenience will arise if 
 the courts *hold as the master of the rolls has decided, that the r^tAj-] 
 executors have an equitable power of sale, and consequently that L -■ 
 the holder of the legal estate is a trustee for them. 
 
 4. Should a testator charge his debts on the real estate, and then 
 devise the estate to A. and his heirs beneficially, and the devisee dies in 
 the testator's lifetime, so that the estate descends, can the heir in this 
 case sell and sign a receipt ? If the heir cannot sell where the estate was 
 never devised, but left to descend, d fortiori he cannot in this case, for 
 here not only the heir is not invested with the character of trustee under 
 the will, but the estate, subject to the charge, was devised to another 
 person who was therefore intended to execute the implied trust. The 
 machinery contemplated by the testator failed by the act of God, and no 
 alternative remains but that the trust should be executed by the Court of 
 Chancery. (m) It is presumed that under these circumstances it could not 
 be held that the executors have a power of sale. The devisee, had he 
 lived, would have been the proper person to execute the trust, and a 
 power of sale can not belong to the executors, as the testator could not 
 be taken to have contemplated his own intestacy. 
 
 5. Suppose a testator to charge his debts, and to devise the estate to 
 A. for life, with contingent remainders or other limitations, which render 
 it impossible that the implied power of sale can be executed by the devi- 
 sees. This has occurred in several cases,(i') and the result appears to be 
 that the court, if it can possibly avoid it, will not construe a charge as a 
 direction for a chancery suit, but will assume that a power of sale for 
 payment of the debts was given to some one, and that as it was not given 
 to the devisees it must have been intended for the executors. In such 
 a case the executors must be considered as having an equitable power of 
 sale. The case in the exchequer(?«) directly decided that the executors 
 have no power themselves to pass the legal estate. Where, in the case 
 *supposed, the executors take an implied equitable power of sale r*_j^g-i 
 upon the face of the will, it is immaterial whether the devised L J 
 estates do or not lapse, except that the legal estate will, as the event hap- 
 pens, be in the devisees or in the heir-at-law. If the concurrence of the 
 devisees or heir in the sale cannot be obtained, recourse must be had to 
 the Trustee Acts for the transfer of the legal estate. 
 
 The true principle which ought to govern these cases would appear to 
 be, that where a testator devises the estate to trustees, or to a beneficiary, 
 
 (s) See 1 Sugd. Powers, 145, 6th ed. {t) 21 Beav. 337. 
 
 \u) But see Hardwick v. Mynd, 1 Anst. 109. 
 
 {v) Gosling V. Carter, 1 Coll. 644 ; Eidsforth v. Armstead, 2 Kay & John. 333 : 
 Wrigley v. Sykes, 21 Beav. 337 ; and see Robinson v. Lowater, 17 Bear. 592 ; 5 
 De Gex, M. & G. 272. 
 
 {w) Doe V. Hughes, 6 Exch. Rep. 223.
 
 386 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 and charges his debts, there the trustees or the beneficiary should have 
 a power of sale and signing receipts, but that where a testator charges 
 his debts, and does not devise the estate, or devises it in such a manner 
 that there is no one who can execute the trust, there the executors should 
 have an equitable power of sale and signing receipts, and that the depo- 
 sitaries of the legal estate should be trustees for them, and bound to con- 
 vey as they direct ; but that where the testator devised the estate, and 
 therefore provided a hand to execute the trust, but the trustee or devisee 
 died in the testator's life-time, there, as the hand to execute the trust has 
 only failed by the act of God, no person has a power of sale or signing 
 receipts, but the trust can only be executed by the court. 
 
 It remains to notice in connection with this subject the recent case of 
 Storry v. Walsh, (a;) in which the master of the rolls held that a devisee, 
 subject to a charge of debts and legacies, may, with the concurrence of 
 the executors, declaring that all debts and legacies have been paid, sell 
 for his own private purposes, and give a good title to a purchaser. 
 This case resembles that of an executor, who is also specific or residuary 
 legatee, selling a chattel interest for his own private debt.(^) The autho- 
 rity of Storry v. Walsh has, however, not received the entire approbation 
 of the profession. (y^^ 
 
 To return to the subject of trustees' receipts in general. As the trust 
 for sale is a joint office, the receipt must be signed by all the trustees 
 who have undertaken to act. And where a j^oiver is given to trustees 
 r^AAQl *° discharge the purchaser from seeing to the *application of his 
 L -J purchase-money, the receipt must be signed even by a trustee 
 who has parted with the estate by a conveyance to his co-trustees ; for 
 the transfer of the estate at law carries not along with it the confidence 
 in equity. (s) But the receipt need not be signed by a trustee who has 
 disclaimed, for by the efi"ect of disclaimer the acting triistees are put 
 exactly in the same plight as if the renouncing trustee had never been 
 mentioned. (a) It was formerly held, that a trustee who, with the inten- 
 tion of disclaiming, released the estate to his co-trustees should be con- 
 sidered to have acted -,(^6) but the more liberal construction of the present 
 day appears to be, that a conveyance bona fide executed with the inten- 
 tion of disclaiming shall, in despite of the want of formality, have the 
 force and efi"ect of a disclaimer.(c) 
 
 As a trust cannot be delegated, it follows that if A. and B. be trustees 
 for payment of debts, and they convey the estate to C. upon the like 
 trusts, the purchaser would not be safe in payment of his purchase-mo- 
 ney upon the receipt of C. Such would appear to be the correct doctrine 
 upon principle ; but in Hardwick v. Mynd(fZ) it was ruled by the Court 
 of Exchequer to the contrary. In this case the executors and trustees 
 
 {x) 18 Beav. 559. {y) See infra. 
 
 {yy) Colyer v. Finch, 3 Jur. N. S. 25, argument of Lord Chancellor in moving 
 the House. 
 
 {z) Crewe v. Dicken, 4 Ves. 97. 
 
 (a) Adams v. Taunton, 5 Mad. 435 ; Hawkins v. Kemp, 3 East, 410; Smith v. 
 Wheeler, 1 Vent. 128. 
 
 {h) Crewe v. Dicken, ubi supra. (c) See supra, p. 233. 
 
 {d) 1 Anst. 109 ; and see Braybroke v. Inskip, 8 Yes. 432.
 
 DUTIES OF TRUSTEES FOR SALE. 337 
 
 renounced probate, and (probably witli the intention of disclaiming) con- 
 veyed the estates to C, the heir-at-law. It might therefore be argued 
 that as the trustees, by disclaiming, vested the estate in the heir, he was 
 properly the trustee to sell or mortgage. It would be diflScult, however, 
 to maintain that the heir under such circumstances could sign a receipt, 
 and certainly the court did not put it upon this ground, but said that the 
 mortgages if made by the trustees would have been good, and that they 
 were in fact made by them, as they had deputed C. to act for them in 
 the trust. Such a doctrine at the present day could not be supported. 
 
 As a general rule, if a power be given to trustees, the exercise of 
 which is arbitrary, and the settlement contains no *proviso for i-^.rnn 
 the appointment of new trustees with similar powers, it is not L -I 
 competent for the court, on the substitution of new trustees by its own 
 inherent jurisdiction, to invest such trustees with that arbitrary power. 
 But an authority to sign receipts is not a mere power, but enters into the 
 substance of the trust ; that is, it is so interwoven with the trust itself that 
 there can be no execution of the trust without the accession of the power ; 
 and in such cases the appointment of new trustees by the court may be 
 taken to include the power. Thus, suppose A. and B. are trustees of an 
 estate to sell for payment of debts, or to sell for the purpose of distribution, 
 at their discretion, amongst children who are infants, and on the death 
 of A. and B. the court appoints C. and D. upon the like trusts ; if C. 
 and D. cannot sign receipts, they cannot sell, and their appointment as 
 trustees was nugatory. The court must have intended them to act in 
 the execution of the trust ; and if so, they must be authorized to give 
 discharges to the purchaser. (e) If, indeed, the trust can be effectuated 
 without the intervention of the power, as where the proceeds are to be 
 distributed between E. and F., who are capable of signing receipts, there 
 the argument has no application, and the necessity for the power does 
 not exist. 
 
 It sometimes happens that the trustees had clearly at first a power of 
 signing receipts, but subsequently, by a breach of trust or some irregu- 
 larity in the administration of the estate, the fund has got out of its 
 proper channel, and then the question arises, whether, if the person who 
 ought never to have had possession of the fund intend to restore it to 
 its proper state, the trustees can sign a receipt. It may be said that as 
 the power never contemplated a breach of trust, it would not be safe to 
 consider the exercise of the power as an indemnity, if the money cannot 
 be properly paid to the trustees upon any other ground : on the other 
 hand, if the fund be reinstated m sjiccie, so that it is standing in the 
 exact form in which the trust required it, and in the names of the per- 
 sons whom the *settlement appointed the trustees, how can it be r^tc-i-i 
 said that in such a state of things any liability can remain ?(/) L J 
 
 Where the trust estate is in mortgage, and the money receivable by 
 the trustees is applicable either wholly or in part in payment of the 
 
 («) See Drayson v. Pocock, 4 Sim. 283 ; Byam v. Byam, 19 Boav. 58 ; Bartley 
 v. Bartley, 3 Drew. 385 ; Lord v. Bunn, 2 Y. & C. Ch. Ca. 98. 
 
 (/) See Lauder v. Weston, 3 Drew. 389 ; Hausou v. Beverley, Vend. & Purch. 
 848, 11th ed.
 
 388 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 mortgage, of course the trustees may sell and sign a receipt for the dif- 
 feren'ce, or, if there be no surplus beyond the mortgage, may sell with- 
 out signing any receipt ; for the circumstances to which the receipt 
 clause^'was meant to apply, have, in the one case, arisen only partially, 
 and in the case other not at all. 
 
 Where the trustees have a power of signing receipts, it has been held 
 not to be necessary that the trustees who sign the receipts should them- 
 selves actually receive the money, provided it be paid to some person by 
 their direction, and the transaction does not on the face of it imply a 
 breach of trust. Thus, where the purchase-money was expressed in the 
 deed to be paid to the trustee, and a receipt by the trustee was endorsed, 
 but in fact the money was paid, by the direction of the trustee, to the 
 tenant for life ; the master of the rolls said, that the purchaser was 
 bound to pay the money as the trustee directed, and having obeyed that 
 direction was exonerated from the consequences. Various transactions 
 might have occurred between the trustee and cestuis que trust, (such as 
 the execution of a previous mortgage on sufficient security,) which would 
 make such a payment perfectly legitimate. (^) The court in this case 
 was protecting a bona fide purchaser, and the principle here laid down 
 must be applied with great caution. A purchaser who has paid his 
 money to another by the direction of the trustee maybe protected under 
 the special circumstances of the case, but no purchaser who has the 
 money still in his pocket can be advised to pay to any one but to the 
 trustee personally. (A) 
 
 The following observations of Lord St. Leonard's upon the subject of 
 trustees' receipts, deserve every attention. " Where," he say, " a pur- 
 ^ chaser is bound to see the money applied ^according to the trust, 
 
 L -1 and the trust is for payment of debts or legacies, he must see the 
 money actually paid to the creditors or legatees. In cases of this nature, 
 therefore, each creditor or legatee, upon receiving his money, should 
 give as many receipts as there are purchasers, so that each purchaser 
 may have one ; or if the creditors or legatees are but few they may be 
 made parties to the conveyance. Another mode by which the purcha- 
 sers may be secured is an assignment by all the creditors and legatees of 
 their debts and legacies to a trustee, with a declaration that his receipts 
 shall be sufficient discharges, and then the trustee can be made a party 
 to the several conveyances. Sometimes a bill is filed for carrying the 
 agreement into execution, when the purchase-money is of course directed 
 to be paid into court, and this is the surest mode, because the money 
 will not be paid out of court without the knowledge of the purchaser." (^) 
 In the preceding discussion it has been stated as the fundamental 
 principle, that a purchaser is in all cases hound to see to the application 
 of his purchase-money , unless a positive intention to the contrary on the 
 part of the settlor he either expressed or implied in the instrument 
 creating the trust. Such indeed is the conclusion to which the authori- 
 ties would seem to conduct us ; but, independently of precedent, it may 
 be suggested that the better principle would be, ihvii, p)rima facie, a 
 
 {g) Hope Y. Liddell, 21 Beav. 202-3. 
 
 {h) See In re Fishbournc, 9 Ir. Eq. Rep. 340. {i) Vend. & Purch. 848, 11th ed.
 
 DUTIES OF TRUSTEES FOR SALE. 389 
 
 direction to sell should imply in all cases a power of signing discharges ; 
 hut that lohere it loas practicable, und no impediment to the execution 
 of the trust was thereby created, the purchaser should pay his money 
 directly to the party hencficiaUy entitled. The distinction between the 
 two principles is very material. According to the former rule, if a trust 
 be created for payment of debts and legacies, and the debts be paid, and 
 then the trustee sell, though the purchaser have notice of all debts 
 having been discharged, he is nevertheless not bound to see to the appli- 
 cation of his purchase-money, because there was an implied intention by 
 the settlor that the receipts of trustees should be sufficient acquittances ;(/.;) 
 but, by the operation of the latter *rule, the purchaser u^ouldhe j.^, ,0-1 
 bound, for the necessity of his paying the money immediately to L ^ 
 the legatees would not, if they were of age, prevent the completion of 
 the sale, and therefore no reason appears why the purchaser should be 
 exempted from seeing to the application. Again, suppose a trust for 
 sale, with a direction to distribute the proceeds between A., B., and C, 
 and that, after the date of the instrument, C. quits the country or cannot 
 be found. According to the first principle, as the absence of C. was not 
 an event in the contemplation of the settlor, and no inference can be 
 drawn that he meant the trustees to sign receipts, it follows that the sale 
 is rendered impossible, and the contradiction arises, that the settlor 
 having in express terms directed a sale, and it being admitted that the 
 will of the settlor is authoritative, yet the execution of that intention is 
 intercepted by the construction of equity. " It were difficult," says Sir 
 E. Sugden, " to maintain that the absence of a cestui que trust in a 
 foreign country should, in a case of this nature, impede the sale of the 
 estate,"(A yet to such a result the rule in question, if there were no 
 exception to it, would apparently lead. But according to the other 
 principle suggested, no such obstacle arises. The receipts of the trustees 
 would i\iQM prima facie be discharges, as necessary to the execution of 
 the sale ; and as C. is not at hand, the purchaser in respect of G.'s 
 share in the purchase-money could not be called upon to observe a rule 
 that would interpose a bar to the accomplishment of the expressed pur- 
 pose of the settlor. 
 
 As executors are invested with the character of trustees, it may be 
 proper to introduce a few remarks upon the large powers allowed to them 
 in disposing of the assets. 
 
 On the death of the testator the personal estate vests wholly in the 
 executor, and to enable him to execute the office with facility, the law 
 permits him, with or without the concurrence of any co-execu- r^^^^^-i 
 tor,(??i) to sell or even to mortgage,(«) by actual *assignment or L -J 
 
 {k) See supra, 439, 440. 
 
 (Z) Vend. & Purch. 844, 11th ed. ; and see Forbes v. Peacock, 12 Sim. 545; 
 Ford V. Ryan, 4 Ir. Ch. Rep. 342. 
 
 {m) Scott V. Tyler, 2 Dick. T25, per Lord Thurlow. 
 
 (n) Bonney v. Ridgard, 1 Cox, 145, see 148 ; Scott v. Tyler, 2 Dick. T25, per 
 Lord Thurlow ; Mead v. Orrery, 3 Atk. 240, per Lord Hardwicke ; Andrew v. 
 Wrigley, 4 B. C. C. 138, per Lord Alvanley ; M'Leod v. Drunimond, 17 Ves. 154, 
 per Lord Eldon ; Keane v. Robarts, 4 Mad. 357, per Sir J. Leach ; and see Hum-
 
 390 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 by equitable cleposit,(o) with or without a power of sale,(p) all or any 
 part of the assets, legal or equitable ;[q) and though liable to render an 
 account to the court, he cannot be interrupted in the discharge of his 
 office by any person claiming either dehors the will, as a creditor, or 
 under it, as a legatee. The creditor has merely a demand against the 
 executor personally,(/-) ih.Q pecuniary or specific legatee is not entitled to 
 the legacy or bequest until the executor has assented, (s) and the resi- 
 duary legatee has no lien until the estate has been liquidated and cleared 
 of all liabilities, both deJiors and under the will.(^) Upon the sale of 
 the chattel, the purchaser is not concerned to see to the application of 
 his purchase-money : it need not be recited in the conveyance that the 
 money was wanted for the discharge of liabilities :(?/) it is sufficient that 
 the purchaser trusts him whom the testator has trusted :(«;) if there be 
 any misapplication, the remedy of the creditor or legatee is not against 
 the purchaser, but the executor. (tt;) It is impossible for the purchaser 
 to ascertain the necessity of the sale, for this must depend upon the 
 state of the accounts, which he has no means of investigating without 
 the powers annexed only to the executorship. (x) Even *express 
 L ^^^] notice of the will, and of the bequests contained in it, works the 
 purchaser no prejudice; for " every person," said Sir. J. Leach, "who 
 deals with an executor has necessarily implied if not express notice of 
 the will : but all dispositions of personal property are by law subject to 
 a prior charge for payment of debts ; and as a purchaser of real estate, 
 devised in aid for payment of debts, is not bound to inquire into the fact 
 whether the sale is made necessary by the existence of debts, because he 
 has no adequate means to prosecute such an inquiry, so he who deals 
 for personal assets is, for the same reason, absolved from all inquiry with 
 respect to debts : he has a right to assume that the executor sells in the 
 necessary course of his administration ; and it is upon this principle 
 altogether indiiferent what dispositions may be made in the will with 
 respect to the personal property for which he deals ; for whether it be 
 specifically given or be part of the residuary estate, it is equally charged 
 by law with the payment of debts."(j/) 
 
 Thus nothing can be clearer than that an executor may go to market 
 
 ble V. Bill, 2 Vern. 444 ; Sanders v. Richards, 2 Coll. 568 ; Miles v. Durnford, 2 
 De Gex, Mac. & Gor. 641. 
 
 (o) Scott V. Tyler, 2 Dick. T25, per Lord Thurlow; and see M'Leod v. Drum- 
 mond, 14 Ves. 360 ; S. C. IT Yes. 167 ; Ball v. Harris, 8 Sim. 485. 
 
 (p) Russell V. Plaice, 18 Bear. 21. 
 
 (q) M'Leod V. Drummond, 14 Ves. 360, per Sir J. Leach ; Nugent v. Gifford, 1 
 Atk. 463. 
 
 (r) Nugent v. Gifford, 1 Atk. 463, per Lord Hardwicke ; Mead v. Orrery, 3 Atk. 
 238, per eundein; M'Leod v. Drummond, 17 Ves. 163, per eundem. 
 
 (s) Mead v. Orrery, 3 Atk. 238, 240, per Lord Hardwicke. 
 
 (0 M'Leod V. Drummond, 17 Ves. 163, 169, per Lord Eldon ; and see Mead v. 
 Orrery, 3 Atk. 238, 240. 
 
 (m) Bonney v. Ridgard, 1 Cox, 148, per Lord Kenyon. {v) Id. 
 
 (w) Humble v. Bill, 2 Vera. 445, per Cur. ; Ewer v. Corbet, 2 P. W. 149, per 
 Sir J. Jekyll ; Watts v. Kancie, Toth. 77 ; Nurton v. Nurton, id. 
 
 {x) Ewer v. Corbet, 2 P. W. 149, per Sir J. Jekyll ; Humble v. Bill, 2 Vern. 445, 
 per Cur. ; Nugent v. Gifford, 1 Atk. 464, per Lord Hardwicke ; Mead v. Orrery, 3 
 Atk. 242, ^jer eundem ; Clarke v. Panopticon, 3 Jur. N. S. 178. 
 
 [y) Keane v. Robarts, 4 Mad. 356.
 
 DUTIES OF TRUSTEES FOR SALE. 391 
 
 witli his testator's assets, even with a chattel specifically bequeathed,(2) 
 and the purchaser will not be bound to see to the application of his pur- 
 chase-money. («) 
 
 But fraud and collusion will vitiate any transaction, and turn it to a 
 mere colour,(i) and therefore if fraud be proved, either express or im- 
 plied, the parties cannot protect themselves by pleading the general 
 rule.(c) The only question is. What will amount to such a case of fraud? 
 
 *1. The sale cannot stand if the chattel be sold at a nominal ^-^5(3-1 
 price, or a fraudulent undervalue. (r/) 
 
 2. The executor may not sell or pledge the assets to pay or secure his 
 own debt,(e) or for a debt wrongfully contracted by him as executor,(/) 
 for prima facie this is a diversion of the assets to a purpose wholly 
 foreign to the administration, and therefore a devastavit. <' Though," 
 observed Sir W. Grant, <' it may be dangerous at all to restrain the power 
 of jmrchasing from the executor, what inconvenience can there be in 
 holding that the assets known to be such should not be applied in any 
 case for the executor's deht, unless the creditor could be first satisfied of 
 his right ? It may be essential that the executor should have the power 
 to sell the assets, but it is not essential that he should have the power to 
 pay his own creditor ; and it is not just that one man's property should 
 be applied to the payment of another man's debt."(^) 
 
 But if the executor he also the specific, {li) or residuary lcgatee,[i) then 
 it seems to be established upon the authority of several cases that he 
 may dispose of the chattel in payment of his own debt, for as soon as 
 the debts and legacies of the testator have been discharged, the property 
 is the executor's; and how is a purchaser to ascertain, but from the 
 mouth of the executor, whether such prior liabilities upon the estate 
 have been fully satisfied ? Unless the purchaser were indemnified, under 
 
 (2) Watts T. Kancie, Toth. 77, 161 ; Nurton v. Nurton, id. ; Ewer v. Corbet, 2 
 P. W. 148. As to Humble v. Bill, 2 Vern. 444, 1 B. P. C. 71, see Ewer v. Corbet, 
 ubi supra; Andrew v. Wrigley, 4 B. C. C. 137; M'Leod v. Drummond, 17 Ves. 160. 
 
 (a) Bouney v. Ridgard, 1 Cox, 147, per Lord Kenyon. 
 
 (b) Scott V. Tyler, 2 Dick. 725, per Lord Thurlow. 
 
 (c) Watkins v. Cheek, 2 S. & S. 205, per Sir J. Leach; M'Leod v. Drummond, 
 17 Ves. 154, per Lord Eldon ; Hill v. Simpson, 7 Ves. 166, per Sir W. Grant; 
 Taner v. Ivie, 2 Ves. 469, per Lord Hardwicke ; Keane v. Robarts, 4 Mad. 357, per 
 Sir J. Leach ; Crane v. Drake, 2 Vern. 616 ; Nugent v. Gifford, 1 Atk. 463, per 
 Lord Hardwicke; Mead v. Orrery, 3 Atk. 240, per eundejn; Scott v. Tyler, 2 Dick. 
 725, per Lord Thurlow ; Whale v. Booth, 4 T. R. 625, note (a), per Lord Mans- 
 field ; Elliot V. Merryman, Barn. 81, per Sir J. Jekyll ; Bonuey v. Ridgard, 1 Cox, 
 147, per Lord Kenyon ; &c. n -rrr 
 
 (d) Scott V. Tyler, 2 Dick. 725, per Lord Thurlow; Ewer v. Corbet, 2 P. W. 
 149, per Sir J. Jekyll; and see Drohan v. Drohan, 1 B. & B. 185. 
 
 (e) Scott V. Tylor, 2 Dick. 712; Hill v. Simpson, 7 Ves. 152; Watkins v. Cheek, 
 2 S. & S. 205, per Sir J. Leach ; Keane v. Robarts, 4 Mad. 35l,j^er eundem; Crane 
 V. Drake, 2 Vern. 616; Anon, case, cited Pr. Ch. 434; Andrew v. Wrigley, 4 B. 
 C. C. 137, per Lord Alvanley ; and see Eland V. Eland, 4 M. & Cr. 427 ; Miles v. 
 Durnford, 2 De Gex, Mac. & Gor. 641. 
 
 (/■) Collinson v. Lister, 20 Beav. 356. 
 
 (g) Hill V. Simpson, 7 Ves. 169. (A) Taylor v. Hawkins, 8 Ves. 209. 
 
 (i) Nugent v. Gifford, 1 Atk. 463, corrected from Reg. Lib. 4 B. C. C. 136 ; 
 Mead v. Orrery, 3 Atk. 235 ; Whale v. Booth, 4 T. R. 625, note (a). See the 
 comments of Lord Eldon, M'Leod v. Drummond, 17 Ves. 163; and see Bedford v. 
 Woodham, 4 Ves. 40, note.
 
 392 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 these circumstances, tliere could be no sale of the chattel without an 
 investigation on the part of the purchaser into the testator's accounts, a 
 proceeding attended with so much *labour and intricacy, that no 
 [^^457] gti-anger has ever yet been called upon by the court to undertake 
 the burden of it. 
 
 But if the executor be specific or residuary legatee jointlt/ witJi others, 
 or subject to certain charges under the ^c^U, then he has no power by 
 himself to ofi"er the chattel in payment of his own debt. For in what 
 character does the executor sell ? It must be either as executor or as 
 legatee. Not as executor, for then he cannot pay his own debt with the 
 testator's assets, and not as legatee, for he is not exclusively such, but 
 only jointly with others, or subject to certain charges ; the creditor there- 
 fore cannot deal for the chattel without the concurrence of the co-lega- 
 tees, or of the other persons jointly entitled.(?) And the mere represen- 
 tation by the executor that he is absolute owner under the will is no 
 protection, for common prudence requires that the purchaser should 
 look at the will himself and ascertain the fact; and if he neglect this 
 precaution, and assume the executor's veracity, he must incur the hazard 
 
 of the executor's falsehood. (m) 
 
 And again, the executor in his character of specific or residuary legatee 
 
 cannot pay or secure the debt of his own creditor out of the testator's 
 
 assets, if such creditor have express notice that any debt of the testator 
 
 still remains unsatisfied, (vi) 
 
 3. If the executor sell or mortgage for money either advanced at the 
 time or to be advanced, the dealing prima facie is in a due course of 
 administration. (o) " Where," observed Sir W. Grant, "a party having 
 a debt due to him by the executor takes, in satisfaction of that debt, the 
 assets which he knows belong to the executor only in that character, 
 undoubtedly suspicion of fraud must always arise; but where a man is 
 applied to for a loan of money there is no motive of fraud, for he may 
 keep his money if not satisfied with the security. (p) However, such is 
 
 the jn-ima facie presumption *only, for if there be legal evidence 
 L '*^°J to the purchaser or mortgagee that the immediate or future ad- 
 vance is not on account of the testator's estate, but is meant to be applied 
 to the private purposes of the executor, the court must regard the trans- 
 action as fraudulent, and will not allow it to stand. (5') 
 
 4. A purchaser cannot deal with an executor for the purchase of a 
 chattel specifically bequeathed, if the purchaser have notice, (a fact 
 however not easily to be proved, and not lightly to be presumed,) that 
 there were no debts of the testator, or that they have since been dis- 
 charged. M 
 
 (l) Bonney v. Ridgard, 1 Cox, 145 ; Hill v. Simpson, T Ves. 152, see 170. 
 
 (m) Hill V. Simpson, 7 Ves. 152, see 170. 
 
 (m) See Nugent v. Gififord, 1 Atk. 4G4 ; Whale v. Booth, 4 T. R. 625, note (a) ; 
 M'Leod V. Drummond, 17 Ves. 163. 
 
 (0) M'Leod V. Drummond, 17 Ves. 155, per Lord Eldon. 
 
 Ip) M'Leod v. Drummond, 14 Ves. 362. 
 
 (q) M'Leod V. Drummond, 14 Ves. 353; S. C. reversed 17 Ves. 152; Scott v. 
 Tyler, 2 Dick. 712, compare 17 Ves. 166; and see Keane v. Robarts, 4 Mad. 358. 
 
 (r) Ewer v. Corbet, 2 P. W. 149, per Sir J. Jekyll.
 
 DUTIES OF TRUSTEES FOR SALE. 393 
 
 5. If a person owe money to a testator's estate, and be apprised ttat 
 the executor means to misapply it, he cannot safely hand it over.(.s) 
 
 If there be merely a presumjotion from length of time that all debts 
 are paid, it may be argued, indeed, that the executor is a trustee for the 
 next of kin, and that the money cannot be paid safely to any other than 
 the next of kin as the cestuis que trust. However, the better opinion 
 probably is, that in the absence of all maJa fides the executor's receipt 
 would be sufficient. The late vice-chancellor of England appeared, on 
 the argument of a case in which the author was counsel, to concur in 
 this view, for he asked, " If the executor could not sign the receipt, who 
 could?" In the case alluded to, there had been a lapse of thirty-five 
 years from the testator's death, and no allegation of debts. (A As regards 
 an administrator it will be remembered, that all necessary protection is 
 thrown around the estate by the bond taken for due administration, and 
 and also by the form of proceeding in the ecclesiastical court ; for if A. 
 (to whose estate the money is owing) die, leaving B. his next of kin, 
 who afterwards dies, leaving C. his next of kin, who afterwards dies, 
 leaving D. his next of kin, in order to take *out letters of admin- r--j.^rQ-i 
 istration to A., you must first show yourself to have an interest «- J 
 by taking out letters to B. And again, to take out letters to B. you 
 must first, for the same reason, take out letters to C. ; so that, in fact, 
 letters cannot be taken out to A. without previously taking out letters to 
 B. and C. If, in such a case, the receipt of A.'s administrator, even 
 after the lapse of twenty years, were not sufficient, it would be necessary 
 in a suit to make the administrators of B. and C. parties as cestuis que 
 trust, a thing quite unheard of in practice. 
 
 6. An agent is accountable to his principal only, and therefore if an 
 executor employ a banker to sell out part of the testator's stock and remit 
 the proceeds to him, it seems the banker, though he has reason to believe 
 that a misapplication is intended, is bound to transfer the money to the 
 executor, and does not thereby render himself accountable. A contrary 
 doctrine would carry the principle of constructive trust to an inconveni- 
 ent and, indeed, to an impracticable length. (z<) But an agent who de- 
 rives a personal benefit from the breach of trust of his principal will be 
 accountable. fy) 
 
 Wherever, as in the several cases mentioned, there is suspicion of 
 fraud, the transaction may be impeached by creditors, (k-) or specific, (x) 
 
 (s) See Watkins v. Cheek, 2 S. & S. 199; Eland v. Elaud, 4 M. & Cr. 427; 
 Stroughill V. Anstey, 1 De Gex, Mac. & Gor. 648. 
 
 (t) Gough V. Birch, July 10, 1839, MS. ; see Stroughill v. Anster, 1 De G. M, & 
 G. 654; Ewer v. Corbet, 2 P. W. 148 ; Court v. Jeffery, 1 S. & S. 105 ; Orrok v. 
 Binney, Jac. 523 ; Pierce v. Scott, 1 Y. & C. 257 ; Forbes v. Peacock, 11 Sim. 152. 
 
 (m) Keane v. Robarts, 4 Mad. 332, see 356, 359; and see Davis v. Sparling, 1 
 R. & M. 64: S. C. Taml. 199; Crisp v. Spranger, Nels. 109 ; Saville v. Tancred, 3 
 Sw. 141, note. 
 
 {v) Pannell v. Hurley, 2 Coll. 241 ; Bodenham v. Hoskyns, 2 De Gex, Mac. & 
 Gor. 241. 
 
 («') Crane v. Drake, 2 Vern. 616; Anon, case, cited Pr. Ch. 434; and see 
 Nugent V. Gifford, 1 Atk. 463 ; Mead v. Orrery, 3 Atk. 238. 
 
 (x) Humble v. Bill, 2 Vern. 444; Scott v. Tyler, 2 Dick. 712.
 
 394 LEWIX ON THE LAW OF TRUSTS, ETC. 
 
 residuary,(y) or even pecuniary legatees. (z) But wliere two co-executors 
 made a fraudulent alienation, and they having become bankrupt, a suit 
 was instituted by two other co-executors who had not interfered for four- 
 teen years, and did not state on their bill any interest in themselves, and 
 hardly a duty they had to perform in behalf of others not parties on the 
 record, the application was refused. («) And in no case will the court 
 grant relief where *the right of unravelling the transaction has 
 L -I been neglected for a lapse of twenty years. (6) 
 
 SECTION III. 
 
 DISABILITY OF TRUSTEES FOR SALE TO BECOME PURCHASERS OF THE 
 TRUST PROPERTY. 
 
 We now come to the subject of purchases by trustees of the property 
 vested in them upon trust. 
 
 Under this head it will be proper to consider, 1, The extent and ope- 
 ration of the rule, that a trustee shi<ll not purchase the trust estate ; 2, 
 The species of relief to which the cestui que trust will be entitled ; 3, 
 The time within which the cestui q^ie trust must apply to the court. 
 
 1. The general rule is, that a trustee for sale,(^c^ (however the case 
 may stand with respect to mere nominal trustees, or trustees who have 
 no active duties to perform, as trustees to preserve contingent remain- 
 ders,)(fZ) is disabled from purchasing the trust property,(e) whether it be 
 real estate or a chattel personal,(/) land, or a ground rent,(^) in reversion 
 or possession, (A) whether the purchase be made in the trustee's own 
 name or in the name of a trustee for him,(i) by private *contract 
 L -I or public auction, (^) from himself as the single trustee, or with 
 
 (y) See Burtiug v. Stonard, 2 P. W. 150 ; Mead v. Orrery, 3 Atk. 235, see 238 ; 
 M'Leod V. Drummond, 17 Ves. 161, 169. 
 
 (z) Hill V. Simpson, 7 Ves. 152 ; and see M'Leod v. Drummond, 17 Ves. 169. 
 
 (a) M'Leod v. Drummond, 14 Ves. 353 ; reversed 17 Ves. 152, see 171. 
 
 (b) Andrew t. Wrigley, 4 B. C. C. 125 ; Bonney v. Ridgard, 1 Cox, 145 ; Mead 
 T. Orrery, 3 Atk. 235, see 243. 
 
 (c) See Parkes v. White, 11 Ves. 226; Randall v. Errington, 10 Ves. 426; 
 AylifFe V. Murray, 2 Atk. 59; Davidson y. Gardner, cited Vend. & Purch. 890, 
 nth Ed. 
 
 (d) Sutton V. Jones, 15 Ves. 587; Naylor v. Winch, 1 S. & S. 567. 
 
 {e) Fox V. Mackreth, 2 B. C. C. 400; S. C. 2 Cox, 320; affirmed in D. P. 4 B. 
 P. C. 258, &c. That Fox v. Mackreth was decided upon this ground, see Gibson 
 T. Jeyes, 6 Ves. 277 ; Ex parte Lacey, id. 627 ; Ex parte James, 8 Ves. 353 ; Coles 
 V. Trecothick, 9 Ves. 247 ; Ex parte Bennett, 10 Ves. 394. 
 
 (/) Crowe V. Ballard, 2 Cox, 253; S. C. 3 B. C. C. 117 ; Killick v. Flexney, 4 
 B. C. C. 161; Hall v. Hallet, 1 Cox, 134; Whatton v. Toone, 5 Mad. 54; 6 Mad. 
 153. 
 
 (g) Price v. Byrn, cited Campbell v. Walker, 5 Ves. 681. 
 
 (A) Re Bloye's Trust, 1 Mac. & Gor. 488, see 492, 495. 
 
 (i) Campbell v. Walker, 5 Ves. 678; S. C. 13 Ves. 001; Randall v. Errington, 
 10 Ves. 423 ; Crowe v. Ballard, 2 Cox, 253 ; S. C. 3 B. C. C. 117 ; Hall v. Hallet, 
 1 Cox, 134; Watson v. Toone, 6 Mad. 153; Baker v. Carter, 1 Y. & CoU. 250; 
 Knight V. Majoribanks, 2 Mac. & Gor. 12. 
 
 (k) Campbell v. Walker, Randall v. Errington, ubi supra; Ex parte Bennett, 10 
 Ves. 381, see 393 ; Ex parte James, 8 Ves. 337, see 349; Whelpdale v. Cookson, 1 
 Ves. 9 ; S. C. stated from R. L. ; Campbell v. Walker, 5 Ves. ' 682 ; Ex parte 
 Hughes, 6 Ves. 617; Ex parte Lacey, id. 625; Lister v. Lister, id. 631 ; Whichcote
 
 DUTIES OF TRUSTEES FUR SALE. 395 
 
 the sanction of his co-trustees ;(?) for he who undertakes to act for ano- 
 ther in any matter cannot, in the same matter, act for himself. (m) The 
 situation of the trustee gives him an opportunity of knowing the value 
 of the property, and as he acquires that knowledge at the expense of the 
 cestui que trust, he is bound to apply it for the cestui' s que trust benefit.(?i) 
 Besides, if the trustee appeared at the auction professedly as a bidder, 
 that would operate as a discouragement to others, who, seeing the vendor 
 ready to purchase at or above the real value, would feel a reluctance to 
 enter into the competition, and so the sale would be chilled. (0) 
 
 Lord Rosslyn is said to have considered that to invalidate a purchase 
 by a trustee it was necessary to show he had gained an actual advan- 
 tage •,(^p'j but the doctrine, (if any such was ever held by his lordship,)(2) 
 has since been expressly and unequivocally denied. (r) The rule is now 
 universal, that, however fair the transaction, the cestui que trust is at 
 liberty to set aside the sale and take back the property. (s) If a trustee 
 were permitted to buy in an honest case, he might buy *in a case r:). i ^9-1 
 having that appearance, hut which, from the infirmity of human L "'-' 
 testimony, might he grossly other ivise.U^ Thus, a trustee for the sale of 
 an estate may, by the knowledge acquired by him in that character, 
 have discovered a valuable coal-mine under it, and, locking that up in 
 his own breast, might enter into a contract for the purchase to himself. 
 In such a case, if the trustee chose to deny it, how could the court esta- 
 blish the fact against the denial ? The probability is, that a trustee who 
 had once conceived such a purpose would never disclose it, and the cestui 
 que trust would be effectually defrauded. (?A 
 
 As a trustee cannot buy on his own account, it follows that he cannot 
 be permitted to buy as agent for a third person : the court can with as 
 little effect examine how far the trustee has made an undue use of infor- 
 mation acquired by him in the course of his duty in the one case as in 
 the other, ^v) 
 
 V. Lawrence, 3 Yes. 740 ; Attorney-General v. Lord Dudley, Coop. 146 ; Downes 
 V. Grazebrook, 3 Mer. 200. 
 
 [1] Whichcote v. Lawrence, 3 Yes. 740 ; Hall v. Noyes, cited id. 748 ; and see 
 Morse v. Royal, 12 Yes. 374. 
 
 [m) Whichcote v. Lawrence, 3 Yes. 750, per Lord Rosslyn ; Ex parte Lacey, 6 
 Yes. 626, per Lord Eldon; Re Bloye's Trust, 1 Mac. & Gor. 495. 
 
 (w) See Ex parte James, 8 Yes. 348. (0) See Ex parte Lacey, 6 Yes. 629. 
 
 [p) See Whichcote v. Lawrence, 3 Yes. 750. 
 
 \q) See Ex parte Lacey, 6 Yes. 626 ; Lister v. Lister, id. 632. 
 
 (r) Ex parte Bennett, 10 Yes. 385; Ex parte Lacey, 6 Yes. 627; Attorney- 
 General V. Lord Dudley, Coop. 148; Ex parte James, 8 Yes. 348; Mulvany v. 
 Dillon, 1 B. & B. 409, see 418. 
 
 (s) Ex parte Lacey, 6 Yes. 625, see 627; Owen t. Foulkes, cited id. 630, 
 note [b)\ Ex parte Bennett, 10 Yes. 393, per Lord Eldon; Randall v. Errington, 
 10 Yes. 423, see 428 ; Campbell v. Walker, 5 Yes. 678, see 680 ; Ex parte James, 
 8 Yes. 347, 348, per Lord Eldon; Lister v. Lister, 6 Yes. 631 ; Gibson v. Jeyes, G 
 Yes. 277, per Lord Eldon; but see Kilbee v. Sneyd, 2 Moll. 186. 
 
 {t) Ex parte Bennett, 10 Yes. 385, per Lord Eldon. 
 
 (m) Ex parte Lacey, 6 Yes. 627, per Lord Eldon; and see Ex parte Bennett, 10 
 Yes. 385, 394, 400; Ex parte James, 8 Yes. 348, 349; Parkes v. White, 11 Yes. 
 226 ; Campbell v. Walker, 5 Yes. 681 ; Lister v. Lister, 6 Yes. 632; Ex parte Bad- 
 cock, 1 Mont. & Mac. 239. 
 
 [v) Ex parte Bennett, 10 Yes. 381, see 400; Coles v. Trecothick, 9 Yes. 243, per 
 Lord Eldon ; and see Gregory v. Gregory, Coop. 204.
 
 396 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 And the rule against purchasing the trust property applies to an agent 
 employed by the trustee for the purposes of the sale, as strongly as to 
 the trustee himself. (?c) 
 
 The lease of an estate is in fact the sale of a partial interest in it, and 
 therefore trustees for sale cannot grant a demise to one of themselves, 
 but the lessee, while he shall be held to his bargain if disadvantageous 
 to him, shall be made to account for the profits if it be in his favour. (x) 
 
 There can be no objection to a purchase by a person named as trustee, 
 but who has disclaimed without having acted in the trust,(y) or by a 
 tenant for life whose consent to the sale is required by the terms of the 
 power, (-i) 
 
 r*4fi^l *^iit when it is said a trustee for sale may not purchase the 
 L J trust property, the meaning must be understood to be that the 
 trustee may not jmrchase from himself; for there is no rule that a trus- 
 tee may not purchase from his cestui que tr2isf.(^a^ However, a purchase 
 by the trustee from his cestui que trust is at all times a transaction of 
 great nicety, and one which the courts will watch with the utmost dili- 
 gence :(h\ the exception runs, it is said, so near the verge of the rule, 
 that it might as well be included within it.(c) 
 
 Before any dealing with the cestui que trust, the relation between the 
 trustee and cestui que trust, must be actually or v irtuaUi/ disso\\ed. The 
 trustee may, if he pleases, retire from the office, and qualify himself for 
 becoming a purchaser by divesting himself of that character,^;:?) or, if he 
 retain the situation, the parties must be put so much at arm's length, 
 that they agree to stand in the adverse situations of vendor and purcha- 
 ser,(e) the cestui que trust distinctly and fully understanding that he is 
 selling to the trustee, and consenting to waive all objections upon that 
 ground^ (/) and the trustee fairly and honestly disclosing all the necessary 
 particulars of the estate, and not attempting a furtive advantage to him- 
 self by means of any private information :(^) the trustee will not be 
 
 (w) Whitcomb v. Mincbin, 5 Mad. 91 ; In re Bloje's Trust, 1 Mac. & Gor. 488, 
 see 495. 
 
 (x) Ex parte Hughes, 6 Yes. 61T; Attorney-General v. Earl of Clarendon, 17 
 Ves. 491, see 500. 
 
 (y) Stacey v. Elph, 1 M. & K. 195 ; and see Chambers v. "Waters, 3 Sim. 42. 
 
 (z) Howard v. Ducane, 1 Turn. & R. 81. 
 
 [a) Ex parte Lacey, 6 Ves. 626, per Lord Eldon; Coles v. Trecothick, 9 Ves. 
 244, 24:6; per eundem ; Gibson v. Jeyes, 6 Ves. 211, per eundem; Downes v. Graze- 
 brook, 3 Mer. 2(i9,,per eundem; Randall v. Errington, 10 Ves. 426, per Sir W. 
 Grant ; Whichcote v. Lawrence, 3 Ves. ToO, per Lord Rosselyn ; Sanderson v. 
 Walker, 13 Ves. 601, per Lord Eldon; AylifFe v. Murray, 2 Atk. 59, per Lord 
 Hardwicke; Kilbee v. Sneyd, 2 Moll. 214, per Sir A. Hart. 
 
 {b) Coles T. Trecothick, 9 Ves. 244, per Lord Eldon ; Ex parte Lacey, 6 Ves. 
 626, jaer eundem; Downes v. Grazebrook, 3 Mer. 2Qd, per eundem. 
 
 (c) Morse v. Royal, 12 Ves. 372, per Lord Erskine. 
 
 (d) Downes v. Grazebrook, 3 Mer. 208, per Lord Eldon. 
 
 \e) Gibson v. Jeyes, 6 Ves. 277, per Lord Eldon ; and see Ex parte Lacey, 6 
 Ves. 626, 627; Ex parte Bennett, 10 Ves. 394; Morse v. Royal, 12 Ves. 373: 
 Sanderson y. Walker, 13 Ves. 601. 
 
 (/) See Randall v. Errington, 10 Ves. 427. 
 
 [g) Coles v. Trecothick, 9 Ves. 247, per Lord Eldon ; Morse v. Royal, 12 Ves. 
 373, 377, per Lord Erskine; Gibson v. Jeyes, 6 Ves. 277, per Lord Eldon; Randall 
 V. Errington, 10 Ves. 427, per Sir W. Grant.
 
 DUTIES OF TRUSTEES FOR SALE. 397 
 
 allowed to go on acquainting himself with the nature of the pro- i-^;^p_, -, 
 perty *up to the moment of sale, and then, casting aside his L J 
 character of trustee, turn his experience to his own account.(/i) 
 
 In what cases a trustee will be at liberty to become a purchaser may 
 be best illustrated by a few instances. 
 
 Where the cestui que trust took the whole management of the sale 
 himself, chose, or at least approved the auctioneer, made surveys, settled 
 the plan of sale, fixed the price, and so had a perfect knowledge of the 
 value of the property, and then by his agent, but with his own personal 
 consent, agreed to sell a lot which had been bought in to one of the trus- 
 tees acting as agent for another, Lord Eldon said, that if in any instance 
 the rule was to be relaxed by consent of the parties, this was the case, 
 and decreed the agreement to be specifically performed. (i) 
 
 Again, a cestui que trust had urged the purchase upon the trustee, 
 who at first expressed an unwillingness, but afterwards agreed to the 
 terms; and the sale was supported. (A-) 
 
 So, where the trustee had endeavoured in vain to dispose of the estate, 
 and then purchased himself of the cestui que trust at a fair and adequate 
 price, and there was no imputation of fraud or concealment, Lord . 
 Northington said, " He did not like the circumstance of a trustee deal- 
 ing with his cestui que trust, but upon the whole, he did not see any 
 principle upon which he could set the transaction aside. "(Z) 
 
 It has been pronounced too dangerous to allow the cesfui's que trust 
 solicitor, without a special authority, to bind his employer by such a 
 contract with the trustee. (m) 
 
 Where the cestuis que trust are creditors, the trustee cannot purchase 
 with the sanction of the major part of them, but the liberty must in 
 strictness be given by the unanimous voice of the whole body,(?i) though 
 the court is in the habit of *sanetioning purchases of a bank- p.,. ,-._-. 
 rupt's estate by assignees, provided the assent of a general meet- L ' -' 
 ing of creditors be obtained. (o) 
 
 The court has no jurisdiction to authorize a trustee to bid where the 
 cestuis que trust are sui juris, for that is a question the cestuis que trust 
 are entitled to decide for themselves. (j;) 
 
 If the cestuis que trust be under disability, as infants, the trustee, as he 
 cannot be i-eleased from the liabilities of his situation, cannot by any 
 act in pais become the purchaser of the estate ;{(]) but, if it be absolutely 
 necessary that the property should be sold, and the trustee is ready to 
 give more than any one else, he may file a bill in Chancery, and apply 
 by motion to be allowed to purchase, and the court will then examine 
 
 {h) See Ex parte James, 8 Ves, 352. (?) Coles v. Trecothick, 9 Vcs. 234. 
 
 (k) Morse v. Royal, 12 Ves. 355. (/) Clarke v. Swaile, 2 Ed. 134. 
 
 (in) Downes v. Grazebrook, 3 Mer. 209, per Lord Eldon. 
 
 (m) See Sir G. Colebrook's case, cited Ex parte Plughes, 6 Ves. 622; Ex parte 
 Lacey, id. 628 ; the cases cited id. 630, note (6). Whelpdale v. Cookson, cited 
 Campbell v. Walker, 5 Ves. 682, must be considered as shaken. Sugd. V. k P. 
 894, 11th Edn. 
 
 (0) Anon, case, 2 Russ. 350 ; Ex parte Bage, 4 Mad. 459. 
 
 [p) See Ex parte James, 8 Ves. 352. 
 
 \q) Campbell v. Walker, 5 Ves. 678 ; S. C. 13 Ves. 601. 
 
 March, 1857.— 26
 
 39S LEWIN ON THE LAW OF TKUSTS, ETC. 
 
 into the circumstances, ask who had the conduct of the transaction, 
 whether there is reason to suppose the premises could be sold better, 
 and upon the result of that inquiry will let another person prepare the 
 particular sale, and allow the trustee to bid.(r) 
 
 The principles laid down with reference to trustees for sale are of 
 course applicable to all who, though differing in name, are invested with 
 the like fiduciary character, as executors and administrators,(s) an exe- 
 cutor in his own wrong,(^) assignees of bankrupts,(«) a receiver,(z;) &c. ; 
 but a mortgagee may purchase from his mortgagor,(w) and a creditor 
 taking out execution is not precluded from becoming the purchaser of 
 the property upon a sale by the sheriff.(a-) 
 
 2. Next as to the terms upon which the sale will be set aside. 
 
 *The cestui que trust, if he choose it, may have the specific 
 [ '*""J estate reconveyed to him by the trustee, (^) or, where the trustee 
 has sold it with notice, by the party who purchased, (,^) the cestui que trust 
 on the one hand repaying the price at which the trustee bought witb 
 interest at 4 per cent., (a) and the trustee or purchaser on the other 
 accounting for the profits of the estate,(i) but not with interest,(c) and, 
 if he was in actual possession, submitting to be charged with an occupa- 
 tion rent.(cZ^ 
 
 The trustee will have all just allowances made to him for improve- 
 ments and repairs that are substantial and lasting,(e) or such as have a 
 tendency to bring the estate to a better sale,(/) as in one case for a man- 
 sion house erected, plantations of shrubs, kc.;{ri) and in estimating the 
 improvements, the buildings pulled down, if they were incapable of 
 
 [r) Campbell v. Walker, 5 Ves. 68], 682, per Lord Alvanley. 
 («) Hall V. Hallet, 1 Cox, 134; Killick v. Flexney, 4 B. C. C. 161 ; Watson v. 
 Toone, 6 Mad. 153 ; Kilbee v. Sneyd, 2 Moll. 186; Baker v. Carter, 1 Y. & C. 250 ; 
 aad see Naylor v. Winch, 1 S. & S. 566. 
 (i) Mulvany v. Dillon, 1 B. & B. 408. 
 
 («) Ex parte Hughes, 6 Ves. 617; Ex parte Lacey, id. 625, and the cases cited, 
 id. 630, note (6); Ex parte Bennett, 10 Ves. 395, per Lord Eldon ; Ex parte 
 Reynolds, 5 Ves. 707 ; Ex parte James, 8 Ves. 346, per Lord Eldon ; Ex parte 
 Morgan, 12 Ves. 6; Ex parte Bage, 4 Mad. 459; Ex parte Badcock, 1 Mont. & 
 Mac. 231. 
 
 {v) Alven v. Bond, 1 Fl. & Kell. 196 ; White v. Tommy, referred to ib. 224. 
 {to) Knight V. Majoribanks, 11 Beav. 322 ; 2 Mac. & Gor. 10. 
 (x) Stratford v. Twynam, Jac. 418. 
 
 {y) See Ex parte James, 8 Ves. 351 ; Ex parte Bennett, 10 Ves. 400 ; Lord 
 Hardwicke T. Vernon, 4 Ves. 411; York Buildings' Company v. Mackenzie, 8 B. 
 P. C. 42. 
 
 (2) Attorney-General v. Lord Dudley, Coop. 146 ; Dunbar v. Tredennick, 2 B. 
 & B. 304. 
 
 {a) Watson v. Toone, 6 Mad. 153 ; Ex parte James, 8 Ves. 351, per Lord Eldon ; 
 Whelpdale v. Cookson, stated from R. L. Campbell v. Walker, 5 Ves. 682 ; Hall v. 
 Hallet, 1 Cox, 134, see 139 ; York Buildings' Company v. Mackenzie, ubi supra, &c. 
 (6) Ex parte James, 8 Ves. 351, per Lord Eldon; Ex parte Lacey, 6 Ves. 630, 
 per eundem; Watson v. Toone, 6 Mad. 153; Whelpdale v. Cookson, York Build- 
 ings' Company v. Mackenzie, ubi supra. 
 
 (c) Macartney v. Blackwood, 1 Ridg. Knapp & Sch. 602. 
 M) Ex parte James, 8 Ves. 351, per Lord Eldon. 
 
 (e) Ex parte Hughes, 6 Ves. 624, 625; Ex parte James, 8 Ves. 352 : Campbell v. 
 Walker, 5 Ves. 682. 
 
 (/) Ex parte Bennett, 10 Ves. 400. 
 
 (<?) York Buildings' Company v. Mackenzie, ubi supra.
 
 DUTIES OF TRUSTEES FOR SALE. 399 
 
 repair, will be valued as old materials, but otherwise they will be valued as 
 buildings standing :(A) should the property have been deterioratedhy the 
 acts of the trustee, his purchase-money will suffer a proportionate reduc- 
 tion, (i) 
 
 But, it seems, where the contract was vitiated by the presence of 
 actual fraud, allowance will be made to the trustee for necessary repairs,(Z;) 
 but not for improvements. " If," said Lord Fitsgibbon, " the person 
 really entitled to the estate will encourage the possessor of it to expend 
 his money in improvements, *or if he will look on and suffer r^ .py-i 
 such an expenditure without apprising the party of his intention L -1 
 to dispute his title, and will afterwards endeavour to avail himself of such 
 fraud, the jurisdiction of a Court of Equity will clearly attach upon the 
 case. But does it follow from thence, that, if a man has acquired an estate 
 by rank and abominable fraud, and shall afterwards expend his money in 
 improving the estate, that therefore he shall retain it in his hands 
 against the lawful proprietor ? If such a rule should prevail, it would 
 justify a proposition I once heard at the bar, that the common equity of 
 the country was to improve the right oioner out of the possession of his 
 estate."{l) 
 
 A trustee, the sale having taken place during the pendency of a suit, 
 had paid part of his purchase-money into court, which had been invested 
 in the funds. On the purchase being set aside, the trustee claimed the 
 benefit of the rise of the stock, but it was held he was only entitled to 
 his purchase-money with interest, for had there occurred a fall of the 
 stock, he could not have been compelled to submit to the loss.(w) 
 
 If the trustee is to be discharged from the situation of purchaser, he 
 is to be discharged at once, and the court will order an immediate con- 
 veyance upon immediate payment of the money. (ji) 
 
 The re-conveyance of the estate will be without prejudice to the titles 
 and interests of lessees and others who have contracted with the trustee 
 hona fide before the pendency of the suit.(o) 
 
 But the bill of the cestui que trust , particularly where the assignee of 
 a bankrupt has become the purchaser, may pray, not a re-conveyance of 
 the specific estate, but a re-sale of the property under the direction of 
 the court. The terms of the re-sale have not always been uniform. In 
 Whelpdale v. Cookson(79) Lord Hardwicke said the majority of the cre- 
 ditors *should elect whether the purchase should stand ; so that r:): ipo-i 
 should they elect to re-sell, and the estate should be sold at a still L J 
 lower price, the creditors would suffer. The doctrine of Lord Thurlow 
 appears to have been, that the property should be put up at the price at 
 which the trustee purchased, and if any advance was made, the sale 
 should take effect, but if no bidding, the trustee should be held to his 
 
 {h) Robinson v. Ridley, 6 Mad. 2. (?) Ex parte Bennett, 10 Ves. 401. 
 
 {k) Baugh V. Price, 1 Wils. 320. 
 
 {I) Kenney v. Browne, 3 Ridg. 518; but see Oliver v. Court, 8 Price, 172. 
 
 {m) Ex parte James, 8 Ves. 337, see 351. 
 
 (m) See Ex parte Bennett, 10 Ves. 400, 401. 
 
 (0) York Buildings' Company v. Mackenzie, 8 B. P. C. 42 ; see the decree. 
 
 {p) Cited Campbell v. Walker, 5 Ves. 682.
 
 400 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 bargain. (5) Lord Alvanley followed the authority of Lord Hardwickej 
 for in the case of infant cestuis que trust, he directed an inquiry by the 
 master, whether it was for the benefit of the infants that the premises 
 should be re-sold, and, if for their benefit, that the sale should be 
 made.(r) " To this principle," said Lord Eldon, " the objection is, that 
 a great temptation to purchase is ofi"ered to trustees, the question whe- 
 ther the re-sale would be advantageous to the cestui que trust being of 
 necessity determined at the hazard of a wrong determination. "(s) Lord 
 Eldon therefore conceived it best to adopt the rule of Lord Thurlow, and 
 so he decreed in Ex parte Hughes(f) and Ex parte Lacey.(7«) Sir W. 
 Grant, in a subsequent case,(t;) said he was not aware that Lord Eldon 
 had laid down any general rule as to the terms ; but a few days after, 
 having consulted the lord chancellor upon the subject, and discovering 
 his mistake, he framed his decree in conformity with the lord chancel- 
 lor's decisions. The same principle has since been followed in numerous 
 other cases,(?«) and the practice may be considered as settled. 
 
 Should the trustee have repaired or improved the estate, the expense 
 of the repairs and improvements would be added to the purchase-money, 
 and the estate be put up at the accumulated sum. (re) 
 
 Where the trustee has purchased in one lot, the cestuis que trust can- 
 
 not insist on a re-sale in difi"erent lots. If desirous *of re-sel- 
 
 L -1 ling the property in that mode, they must pay the trustee his 
 
 principal and interest, and then, as the absolute owners, they may sell 
 
 as they please. (?/) 
 
 In the application of Lord Hardwicke's rule it was a question con- 
 stantly occurring, whether the body of creditors at large could be bound 
 by the reisolution of the majority to insist upon a re-sale; but by the 
 practice of Lord Eldon, the difficulty on that head is avoided, (.t) for, as 
 the creditors cannot by possibility sustain an injury, it is competent to 
 any individual creditor to try the experiment. (a) 
 
 If, before the cestui que trust files his bill for relief, the trustee has 
 passed the estate into the hands of a purchaser, and the purchaser had 
 notice of the equity, the same remedies may be prosecuted against the 
 purchaser as against the trustee ;(i) but if the sale was without notice, 
 the cestui que trust may then compel the trustee to account for the dif- 
 ference of priee,(c) or for the difference between the sum the trustee paid 
 
 (q) See Lister v. Lister, 6 Yes. 633 ; Ex parte James, 8 Ves. 351. 
 
 (r) Campbell v. Wallier, 5 Ves. 678, see 682. 
 
 (s) S. C. 13 Ves. 603. (/) 6 Ves. 617. 
 
 (m) Id. 625 ; aud see Ex parte Reynolds, 5 Ves. 707. 
 
 (v) Lister v. Lister, 6 Ves. 633. 
 
 (w) Ex parte James, 8 Ves. 337; Ex parte Bennett, 10 Ves. 381 ; Robinson v. 
 Ridley, 6 Mad. 2. 
 
 (x) Ex parte Bennett, 10 Ves, 400 ; Ex parte Hughes, 6 Ves. 625 ; Robinson v. 
 Ridley, 6 Mad. 2. 
 
 (y) See Ex parte James, 8 Ves. 351, 352. (z) Ex parte Hughes, 6 Ves. 624. 
 
 (a) Ex parte James, 8 Ves. 353; and see Ex parte Lacey, 6 Ves. 628. 
 
 (6) Attorney-General v. Lord Dudley, Coop. 146 ; Dunbar v. Tredennick, 2 B. 
 & B. 304. 
 
 (c) Fox y. Mackreth, 2 B. C. C. 400 ; S. C. 2 Cox, 320 ; Hall v. Hallet, 1 Cox, 
 134; Whichcote v. Lawrence, 3 Ves. 740 ; Ex parte Reynolds, 5 Ves. 707 ; Randall 
 T. Errington, 10 Ves. 423.
 
 DUTIES OF TRUSTEES FOR SALE. 401 
 
 and the real value of the estate at the time of the purchase;(cZ) with 
 interest at four per cent.(e) 
 
 An administrator had become the purchaser of some shares in Scotch 
 mines, part of the assets, and afterwards sold them to a stranger at a 
 considerable advance of price, and Lord Thurlow decreed the trustee to 
 account for every advantage he had made, but said he could not go the 
 length of ordering the defendant to replace the shares. He conceived 
 the plaintiflF, one of the next of kin, had no such election of choosing 
 between the specific thing and the advantage made of it.(/) 
 
 The costs of the suit will, as a general rule, follow the decree — that 
 is, if the trustee be compelled to give up his purchase, unless his con- 
 duct was perfectly honourable and the *sale is set aside on the r^A^o-, 
 mere dry rule of equity,(f/^ he must pay the expenses he had L J 
 himself occasioned ;(/i) and if the charge be unfounded, the costs must 
 be paid by the plaintiff. But if there be great delay on the part of the 
 cestui que trust, the costs will be refused him, though he succeed in the 
 suit;(i) and, on the other hand, if the bill be dismissed, not because the 
 transaction was not originally impeachable, but merely on account of 
 the great interval of time, the court may refuse to order the costs of the 
 defendant.(j/*) 
 
 3. If the cestui que trust desire to set aside the purchase, he must 
 make his application to the court in treasonable time, or he will not be 
 entitled to relief, (/c) A long acquiescence under a sale to a trustee is 
 treated as evidence that the relation between the trustee and cestui que 
 trust had been previously abandoned, and that in all other respects the 
 purchase was fairly conducted. (?) 
 
 A sale cannot, in general, be set aside after a lapse of twenty years ;(m) 
 but in these cases the court does not confine itself to that period by 
 analogy to the Statute of Limitations, for relief has been refused after 
 an acquiescence of eighteen years,^w) and seventeen years ;(o) and it is 
 presumed even a shorter period would be a bar to the remedy, where the 
 cestui que trust could offer no excuse for his laches.{jp) However, the 
 
 {d) See Lord Hardwicke v. Vernon, 4 Yes. 411, 
 
 (e) Hall V. Hallet, 1 Cox, 134, see 139. (/) S. C. 
 
 {g) Baker v. Carter, 1 Y. & C. 250. 
 
 (h) Whichcote v. Lawrence, 3 Ves. 752; Hall v. Hallet, 1 Cox, 141 ; Sanderson 
 V. Walker, 13 Ves. 601, 604; Crowe v. Ballard, 2 Cox, 253; S. C. 3 B. C. C. 117; 
 Dunbar v. Tredennick, 2 B. & B. 304. • 
 
 {i) Attorney-General v. Lord Dudley, Coop. 146. 
 
 (y) Gregory v. Gregory, Coop. 201. 
 
 \k) Campbell v. Walker, 5 Ves. 680, 682, per Lord Alvanley ; Chalmer v. Bradley, 
 1 J. & W. 59, per Sir T. Plumber; Ex parte James, 8 Ves. 351, per Lord Eldou ; 
 Webb V. Rorke, 2 Sch. & Lef. 672, per Lord Redesdale ; Randall v. Erringtou, 10 
 Ves. 427, per Sir W. Grant. 
 
 {I) Parkes v. White, 11 Ves. 226, per Lord Eldon ; and see Morse v. Royal, 12 
 Ves. 374, 378. 
 
 (m) Price v. Byrn, cited Campbell v. Walker, 5 Ves. 681. 
 
 {n) Gregory v. Gregory, Coop. 201 ; Champion v. Rigby, 1 R. & M. 539 ; Roberts 
 V. Tunstall, 4 Hare, 257. 
 
 (o) Baker v. Read, 18 Beav. 398. 
 
 Ip) See Oliver v. Court, 8 Price, 167, 168.
 
 402 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 sale has been opened after an interval of ten years ^(j) and even after a 
 mucli greater lapse of time where the executor had purchased in the 
 *naines of trustees for himself, and the transaction was attended 
 L '*' J with circumstances of disguise and concealment. (r) 
 
 Persons not sui Juris, as femes covert and infants, cannot be precluded 
 from relief on the ground of acquiescence during the continuance of the 
 disability, (s) But femes covert as to property settled to their separate 
 use, if their power of anticipation be not restricted, are regarded as femes 
 sole.{t^ 
 
 A class of persons, as creditors, cannot be expected in the prosecution 
 of their common interest to exert the same vigour and activity as indivi- 
 duals would do in the pursuit of their exclusive rights.(if) Accordingly 
 creditors have succeeded in their suit after a laches of twelve years ;(z;) 
 but even creditors will be barred of their remedy if they be chargeable 
 with very gross laches, as with acquiescence in the sale for a period of 
 thirty-three years. (w) 
 
 For laches to operate as a bar, it must be shown that the cestui que 
 trust knew the trustee was the purchaser; for while the cestui que trust 
 continues ignorant of that fact, he cannot be blamed for not having 
 quarrelled with the sale. (a:) 
 
 The effect of the length of time may also be materially influenced by 
 the continued distress of the cestui que trust, [y) but poverty is merely an 
 ingredient in the case, and will not alone displace the bar.(;:) 
 
 Of course the cestui que trrist may ratify the sale to the trustee by an 
 express and actual confirmation; (a) and if the cestiii que trust choose to 
 
 ,„ confirm it, he cannot afterwards annual *his own act on the 
 L J ground of no adequate consideration. ^t) But, 
 
 1. The confirming party must be sui juris — not labouring under any 
 disability, as infancy or coverture. (c) However, in the case of real estate 
 a feme covert can, of course, confirm the purchase under the operation 
 
 iq) Hall T. Noyes, cited Whichcote v. Lawrence, 3 Ves. 748. 
 r) "Watson v. Toone, 6 Mad. 153. 
 s) Campbell v. Walker, 5 Ves. 6T8 ; S. C. 13 Ves. 601 ; Roche v. O'Brien, 1 B. 
 & B. 330, see 339. 
 
 (t) See infra. 
 
 (u) Whichcote v. Lawrence, 3 Ves. "740, see 752; Ex parte Smith, 1 D. & C. 
 267; Hardwick v. Mynd, 1 Anst. 109; and see Kidney v. Coussmaker, 12 Ves. 
 158 ; York Buildings' Company v. Mackenzie, 8 B. P. C. 42 ; Ex parte Smith, I 
 D. & C. 267. 
 
 (v) Anon, case in the Exchequer cited Lister v. Lister, 6 Ves. 632. 
 
 (w) See Hercy v. Dinwoody, 2 Ves. jun. 87 ; and see Scott v. Nesbitt, 14 Ves. 
 446. 
 
 (x) Randall v. Errington, 10 Ves. 423, see 427; Chalmer v. Bradley, 1 J. & 
 W. 51. 
 
 (y) Oliver v. Court, 8 Price, 127, see 167, 168; and see Gregory v. Gregory, 
 Coop. 201 ; Roche v. O'Brien, 1 B. & B. 342. 
 
 (z) Roberts v. Tunstall, 4 Hare, 257; see p. 267. 
 
 {a) Morse v. Royal, 12 Ves. 355 ; Clarke v. Swaile, 2 Ed. 134 ; and see Chester- 
 field V. Janssen, 2 Ves. 125 ; S. C. 1 Atk. 301. 
 
 {b) Roche v. O'Brien, 1 B. & B. 353, per Lord Manners. 
 
 (c) Campbell v. Walker, 5 Ves. 678 ; S. C. 13 Ves. 601 ; Roche v. O'Brien, 1 B. 
 & B. 330, see 339 ; and see Scott v. Davis, 4 M. & C. 92.
 
 DUTIES OF TRUSTEES FOE, SALE. 403 
 
 of the fines and recoveries act,(<:Z) and if property, wliether real or per- 
 sonal, be settled to her separate use (provided her power of anticipation 
 be not restricted) she has, to the extent of the interest so settled to her 
 separate use, all the capacity of a feme sole.(e) 
 
 2. The confirmation must be a solemn and deliberate act, not, for 
 instance, fished out from loose expressions in a letter ;(/) and particularly 
 where the original transaction was infected with fraud, the confirmation 
 of it is so inconsistent with justice, and so likely to be accompanied with 
 imposition, that the court will watch it with the utmost strictness, and 
 not allow it to stand but on the very clearest evidence.((7) 
 
 3. There must be no sujjpressio veri or suggestio falsi, but the cei^tui 
 que trust must be honestly made acquainted with all* the material circum- 
 stances of the case.(/t) 
 
 4. The confirming party must not be ignorant of the Imc, that is, he 
 must be aware that the transaction is of such a character that he could 
 impeach it in a court of equity, (i) 
 
 *5. The confirmation must be wholly distinct from and inde- r*j^-g-| 
 pendent of the original con tract(^) — notaconveyanceof the estate L ' J 
 executed in pursuance of a covenant in the original deed for further 
 assurance.0 
 
 6. The confirmation must not be wrung from the cestui que triist by 
 distress or terror, (m) 
 
 7. Where the cestuis que trust are a class of persons, as creditors, the 
 sanction of the major part will not be obligatory on the rest; but the 
 confirmation to be complete, must be the joint act of the whole body.(/() 
 
 (d) 3 & 4 W. 4, c. 74 ; and see 8 & 9 Vict. c. 106. (e) See infra. 
 
 (/) Carpenter v. Heriot, 1 Ed. 338 ; and see Montmorency v. Devereux, 7 CI. & 
 Fin. 188. 
 
 {g) Morse v. Royal, 12 Ves. 373, per Lord Erskine. 
 
 Morse 
 
 & B. 338, and following pages , 
 
 Cholmley, 1 Russ. & M. 425 ; S. C. Taml. 444 ; Cliesterfield v. Janssen, 2 Ves. 146. 
 
 149, 152*, 158; Chalmer v. Bradley, 1 J. & W. 51. 
 
 (i) See Cann v. Cann, 1 P. W. 727; Dunbar v. Tredennick, 2 B. & B. 317 ; 
 Burney v. Macdonald, 15 Sim. 15; Molony v. L'Estrange, 1 Beat. 413; Crowe v. 
 Ballard, 2 Cox, 257; S. C. 1 Ves. jun. 220; S. C. 3 B. C. C. 120 ; Watts v. Hyde, 
 2 Coll. 377; Baugh v. Price, Cockerell v. Cholmley, Chesterfield v. Janssen, 
 Chalmer V. Bradley, Murray v. Palmer, Roche v. O'Brien, ubi supra. 
 
 (k) See Wood v. Downes, 18 Ves. 128; Morse v. Royal, 12 Ves. 373; Scott v. 
 Davis, 4 M. & C. 91, 92 ; Roberts v. Tunstall, 4 Hare, 267. 
 
 (l) Roche v. O'Brien, 1 B. & B. 330, see 338 ; Wood v. Downes, 18 Ves. 120, see 
 123 ; and see Fox v. Mackreth, 2 B. C. C. 400. . 
 
 (m) See Roche v. O'Brien, 1 B. & B. 330 ; Dunbar v. Tredennick, Crowe v. 
 Ballard, Chesterfield v. Janssen, ubi supra. 
 
 (n) Sir G. Colebrook's case, cited Ex parte Hughes, 6 Ves. 622; Ex pane 
 Lacey, id. 628 ; the cases cited, id. 630, note {b). Whelpdalc v. Cookson, cued 
 Campbell v. Walker, 5 Ves. 682, must be considered as greatly shaken, if not 
 actually overruled.
 
 404 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 r*474] *CH AFTER XVII. 
 
 DUTIES OF TRUSTEES FOR PAYMENT OF DEBTS. 
 
 We shall first premise a few observations upon tlie validity of a trust 
 for payment of debts. 
 
 A trust for this purpose may be created either by will or by act inter 
 
 VIVOS 
 
 A trust created by ^vUl for payment of debts out of personal estate is 
 so far a nullity, that the executor is bound, at all events, to provide for 
 the payment of debts out of the assets in due course of administration, 
 and would not be justified in the breach of this legal obligation by plead- 
 ing any expression of intention on the part of the testator. It is only 
 as'respects any surphis personal estate after payment of debts that the 
 executor ought to regulate his administration by the directions of the 
 will. A devise, however, of real estate for payment of debts is, in all 
 cases, unimpeachable, for the statutes that have avoided devises as against 
 specialty,(a) and now as against simple contract creditors,(6) have ex- 
 pressly excepted devises for payment of debts. 
 
 As to trusts created by act inter vivos, a distinction must be observed 
 between non-traders and traders. 
 
 1. If the settlor be not a trader, and therefore not amenable to the 
 bankrupt laws, he is at perfect liberty to dispose either of the w7iole[c) or 
 of 2Jart of his property,(fZ) for payment of all{e) *or any number 
 [ ■*' ^J of his creditors. (/) The argument formerly urged for the inva- 
 lidity of such a trust was that the 13 Eliz. c. 5,(^7) avoided " all aliena- 
 tions contrived oi fraud, to delay creditors and others of their just 
 debts," &c. But with respect to a trust for the satisfaction of creditors 
 generally — " How," said Le Blanc, " can it be fraudulent for a person 
 not the object of the bankrupt laws to make the same provision volun- 
 tarily for the benefit of all his creditors which the law compels to be 
 done in the case of a bankrupt trader ?"(/i) and if the settlor direct the 
 payment of particular debts only, " It is neither illegal nor immoral," 
 said Lord Kenyon, " to prefer one set of creditors to another."(t) Nor 
 
 (a) 11 G. 4, & 1 W. 4, c. 47. (6) 3 & 4 W. 4, c. 104. 
 
 (c) Ingliss V. Grant, 5 T. R. 530 ; Nunn v. Wilsmore, 8 T. R. 528, per Lord 
 Kenyon; Pickstock v. Lyster, 3 M. & S. 371 ; Leonard v. Baker, 1 M. & S. 251 ; 
 see Meux v. Howell, 4 East, 1. What property will pass by general words in a 
 creditor's deed and whether the trustees can disclaim any part which is a damnosa 
 possessio, see How v. Kennett, 3 Ad. & Ell. 659 ; Carter v. Warne, M. & M. 479 : 
 West V. Stewart, 14 M. & W. 47 ; Moore v. Petchell, 22 Bear. 172, in which case, 
 however, Jones v. Scott, 1 R. & M. 255, reversed in D. P. 4 CI. & Fin. 382, appears 
 to have been altogether overlooked. 
 
 {d) Estwick V. Caillaud, 5 T. R. 420 ; Goss v. Neale, 5 Taunt. 19 ; see Meux v. 
 Howell, 4 East, 1. 
 
 (e) Meux v. Howell, 4 East, 1; Ingliss v. Grant, 5 T. R. 530; Pickstock v. 
 Lyster, 3 M. & S. 371; Leonard v. Baker, 1 M. & S. 251. 
 
 '(/) Estwick V. Caillaud, 5 T. R. 420 ; Nunn v. Wilsmore, 8 T. R. 528, per Lord 
 Kenyon; Goss v. Neale, 5 Taunt. 19 ; Wood v. Dixie, 7 Q. B. R. 892. 
 
 (g) Perpetuated 29 Eliz. c. 5. 
 
 {h) Meux V. Howell, 4 East, 9. {i) Estwick v. Caillaud, 5 T. R. 424.
 
 DUTIES OF TRUSTEES FOR PAYMENT OF DEBTS. 405 
 
 does the creation of such a trust fall within the scope of the act; for " it 
 is not every feoffment, judgment/' &c., said Lord Ellenborough, << which 
 will have the effect of delaying or hindering creditors of their debts, &c., 
 that is therefore fraudulent within the statute ; for such is the effect^?-o 
 tanto of every assignment that can be made by one who has creditors; 
 every assignment of a man's property, however good and honest the 
 consideration, must diminish the fund out of which satisfaction is to be 
 made to his creditor, but the feoffment, judgment, &c., must be devised 
 of malice, fraud, or the like, to bring it within the statute. The act 
 was meant to prevent deeds, &c., fraudulent in their concoction, and not 
 merely such as in their effect might delay or hinder other creditors. "(/c) 
 
 But the act relating to insolvent debtors provides, that if any insol- 
 vent{l\ shall voluntarilyrm) convey or assign any estate, real or personal, 
 in trust for creditors, every such conveyance or assignment shall be 
 deemed fraudulent and void as against the assignees, if made " within 
 three calendar months before the commencement of his imprisonment, or 
 with the *view or intention of petitioning the court for his dis- r* i^p-i 
 charge under the act,"(M) and a voluntary deed within the three •- -• 
 months will be void under this section though made in favour of all the 
 assignor's creditors. (o) 
 
 And in all cases a trust for payment of debts will be void, if vitiated 
 by actual fraud, as if the debtor by an understanding between him 
 and his trustees be left in possession of the estate, so as to obtain a ficti- 
 tious credit, (p) 
 
 Suppose there is no fraud, but the trust deed is a mere voluntary 
 settlement not founded on any arrangement with the creditors, but for 
 the mere convenience of the debtor himself, so that by the recent deci- 
 sions it is revocable by the debtor at any time until communicated to 
 some creditor •,[q) in such a case can a creditor, taking out execution, 
 levy his debt upon the property subject to the trust? It seems, though 
 the deed is voluntary,^ at it is not to be considered as fraudulent within 
 the statute 13 Eliz. c. 5, and if so, the creditor cannot reach the property 
 at law.M However, the Court of Chancery might perhaps hold the 
 deed to be invalid as against the creditor in a court of equity, (s) 
 
 And where the trust was originally good, yet a creditor will not be 
 
 (k) Meux V Howell, 4 East, 13, 14. 
 
 (I) The words are, any prisoner, &c., being in insolvent circumstances. 
 
 (m) Stuckey v. Drewe, 2 M. & K. 190; Mogg v. Baker, 3 M. & W. 195; 4 M. 
 & W. 348. 
 
 (n) 1 & 2 V. c. 110, s. 59. 
 
 (o) Jackson v. Garnett, 2 Q. B. R. 887 ; Thompson y. Jackson, 3 M. & Gr. G21 ; 
 S. C. 4 Scott, N. R. 234. 
 
 (p) Twyne's case, 3 Re. 80 a; Wilson v. Day, 2 Burr. 827; Hungerford v. 
 Earle, 2 Vern. 261 ; Tarback v. Marbury, 2 Vern. 510 ; Law v. Skinner, W. Black. 
 Re. 996 ; and see Worsley v. Demattos, 1 Burr. 467 ; Stone v. Gratham, 2 Buls. 
 218; Pickstock V. Lyster, 3 M. & S. 371 ; Dutton v. Morrison, 17 Ves. 197. 
 
 (q) Wallwyn v. Coutts, 3 Mer. 707; S. C. 3 Sim. 14; Garrard v. Lord Lauder- 
 dale, 3 Sim. 1; Acton v. Woodgate, 2 M. & K. 492; Kirwau v. Daniel, 5 Hare, 
 500 ; Harland v. Binks, 15 Q. B. R. 713. 
 
 (r) Pickstock v. Lyster, 3 M. & S. 371 ; Estwick v. Caillaud, 5 T. R. 420. But 
 see Owen v. Body, 5 Ad. & Ell. 28. 
 
 (s) See Mackinnon v. Steward, 1 Sim. N. S. 90, 91.
 
 406 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 bound by the arrangement, but may recover liis whole debt, if the terms 
 of the composition be not strictly and literally fulfilled } for cujus est dare 
 ejus est disponere, the creditor has a right to prescribe the conditions of 
 his indulgence. (^) 
 
 *A deed if expressed on the face of it to be voluntary, as for 
 L ^ natural love and affection, may yet be proved to have been 
 founded on valuable consideration, and so unimpeachable by creditors. 
 The deed binds as between the parties to it, but does not preclude evi- 
 dence aliunde as regards third persons.(M) 
 
 2. If the settlor be a trader, then the case is governed by the operation 
 of the bankruptcy laws. 
 
 By the 12 & 13 Vict. c. 106, s. 67, (being a re-enactment of the pre- 
 vious statutes,) it is declared that " any fraudulent grant or conveyance 
 of any lands, tenements, goods, or chattels, with intent to defeat or delay 
 creditors, shall be deemed an act of bankruptcy." It has been adjudged 
 fraudulent within the meaning of this clause, if a trader assign the whole 
 of his property(i;) (whether expressed to be the whole or not in the 
 deed,)(M;) or all but a colourable part,(a.') or all the stock, without which 
 he cannot carry on his trade ;(y) and it is immaterial whether the trust 
 be for any particular creditor,(5;) or a certain member of them, (a) or all 
 r*47S1 ^^^ creditors at large.(6) *By the assignment of his whole sub- 
 *- J stance he becomes utterly insolvent; and if the trust be for one 
 or some only of his creditors, it is a fraud upon the rest, and if it be for 
 all the creditors, it is a fraud upon the spirit of the bankruptcy laws, 
 which require a bankrupt's estate to be under the management of certain 
 commissioners and assignees appointed as prescribed by the legislature — 
 not of persons nominated by the debtor himself, and so more likely to 
 
 (t) Sewell V. Musson, 1 Vern. 210; Mackenzie v. Mackenzie, 16 Ves. 374, per 
 Lord Eldon; Leigh v. Barry, 3 Atk. 583, per Lord Hardwicke; Ex parte Bennet, 
 
 2 Atk. 521, per eundem; and see Fuller v. Lance, 7 Vin. Ab. 136. 
 (m) Gale V. Williamson, 8 M. & W. 405. 
 
 {v) Nunn v. Wilsmore, 8 T. R. 528, per Lord Kenyon ; Alderson v. Temple, 4 
 Burr. 2240, per Lord Mansfield; Hooper v. Smith, W. Bl. Re. 441, per eundem; 
 Wilson V. Day, 2 Burr. 827 ; Rust v. Cooper, Cowp. 632, per Lord Mansfield; 
 Bowker v. Burdekin, 12 M. & W. 128. 
 
 [w) See Button v. Morrison, 17 Ves. 193 ; Linden v. Sharp, 6 Man. & Gr. 905. 
 But the assignment of all his property at a certain place is not an act of bank- 
 ruptcy, unless it be proved that he had no other property. Chase v. Goble, 2 Man. 
 & Gr. 930. 
 
 {x) Law V. Skinner, W. Bl. Re. 996; Hooper v. Smith, ib. 442, per Lord Mans- 
 field ; Wilson V. Day, 2 Burr. 832, ;jcr eundem; Alderson v. Temple, 4 Burr. 2240, 
 per eundem ; Estwick v. Caillaud, 5 T. R. 424, per Lord Kenyon ; Gayner's case, 
 cited 1 Burr. 477 ; Compton v. Bedford, W. Bl. Re. 362. 
 
 (y) Hooper v. Smith, Bl. Re. 442 ; Law v. Skinner, W. Bl. Re. 996 ; Siebert v. 
 Spooner, 1 M. & W. 714; Porter v. Walker, 1 Man. & Gr. 686 ; Ex parte Bailey, 
 
 3 De Gex, M. & G. 534 ; Ex parte Taylor, 5 De Gex, M. & G. 392. 
 
 (z) Wilson V. Day, 2 Burr. 827 ; Hassell v. Simpson, 1 B. C. C. 99 ; S. C. Doug. 
 89, note; Hooper v. Smith, W. Bl. Re. 442, per Lord Mansfield; Worsley v. 
 Demattos, 1 Burr. 467 ; Newton v. Chantler, 7 East, 138. 
 
 (a) Ex parte Foord, cited Worsley v. Demattos, 1 Burr. 477 ; Alderson v. Temple, 
 
 4 Burr. 2240, per Lord Mansfield; Butcher v. Easto, Doug. 282 ; Devon v. Watts, 
 Doug. 86; Hooper v. Smith, W. Bl. Re. 442, per Lord Mansfield. 
 
 {b) Kettle V. Hammond, 1 Cooke's B. L. 108, 3rd. edit.; Eckhardt v. Wilson, 8 
 T. R. 140; Tappenden v. Burgess, 4 East, 230; Dutton v. Morrison, 17 Ves. 199, 
 per Lord Eldon ; Simpson v. Sikes, 6 M. & S. 312.
 
 DUTIES OF TRUSTEES FOR PAYMENT OF DEBTS. 407 
 
 further liis views tlian promote the interest of the creditors. (c) But in 
 order to avoid the deed there must be in existence a debt due at the time 
 of its execution, (f?) and the assignment, though void as against creditors 
 and the assignees in bankruptcy,(e) is good as between the parties them- 
 selves ;[/) and assignments for valuable consideration, at the full price, 
 where the purchaser is not party or privy to the fraudulent designs of 
 the vendor, are not acts of bankruptcy and cannot be impeached. (^) 
 And where a trader, greatly embarrassed, who had committed acts of 
 bankruptcy, executed a trust deed for the purpose of effecting a conver- 
 sion of his property and facilitating arrangements with his creditors, the 
 deed was held not to be an act of bankruptcy. (A) 
 
 The deed will be an act of bankruptcy, notwithstanding a proviso 
 declaring it void, if the trustees think fit,{l) or if all the creditors shall 
 not execute (the acts of the trustees to he good in the meantime ;)(/^) or if 
 all the creditors to a certain amount shall not execute hy such a time, or 
 a commission of bankruptcy shall issue. (l^j So it will be an act of bank- 
 ruptcy though the trustees at the time of the execution of the deed did 
 not intend to act upon it (for the fraud must be referred to the animus 
 of *the trader ;Vmj and though the trustees induced the debtor p::c.-Q-| 
 to execute it, with the object of making it an act of bankrupt- L J 
 cy ;(n) and though the debtor himself meant it to be taken as such.(o) 
 
 But if A., B., and C. agree to execute an assignment as a joint trans- 
 action, and A. executes, but B. and C. refuse, then, as the assignment 
 of A. was made on the footing and faith of B. and C.'s concurrence, and 
 therefore cannot be enforced against A. individually and solely, it is no 
 act of bankruptcy, (^j) 
 
 An assignment executed abroad was held to be no act of bankruptcy 
 in England -.{q) but in this respect the law has been altered by statute. (r) 
 
 If any creditors either concur in the assignment,(.s) or subsequently 
 acquiesce in it,(A they cannot afterwards treat it as an act of bankruptcy, 
 
 (c) See Button v. Morrison, 17 Yes. 199; Worsley v. Demattos, 1 Bur. 476; 
 Simpson v. Sikes, 6 M. & S. 312. 
 
 (rf) Ex parte Taylor, 5 De Gex, M. & G. 392; Ex parte Louch, 1 De Gex, 612; 
 Oswald Y. Thompson, 2 Exch. Re. 215. 
 
 (e) Doe V. Ball, 11 M. & W. 531. 
 
 (/) Bessey v. Windham, 6 Q. B. Re. 166. 
 
 {g) Baxter v. Pritchard, 1 Ad. & Ell. 456 ; Rose v. Haycock, ib. 460 ; Bittleston 
 V. Cooke, 2 Jur. N. S. 758 ; Button v. Crutwell, 1 Ell. & Bl. 15. 
 
 (A) Greenwood v. Churchill, 1 M. & K. 546; Smith v. Hurst, 11 Hare, 30. 
 
 (?) Tappenden v. Burgess, 4 East, 230. 
 
 (k) Back V. Gooch, 4 Campb. 232; S. C. Holt, 13. 
 
 (I) Button V. Morrison, 17 Ves. 193. (m) Tappenden v. Burgess, 4 East, 230. 
 
 \n) Id. (o) Simpson v. Sikes, 6 M. & S. 295. 
 
 {p) Button V. Morrison, 17 Ves. 193, see 202 ; and see Bowker r. Burdekin, 11 
 M. & W. 128, 
 
 {q) Norden v. James, 2 Dick. 533 ; Ingliss v. Grant, 5 T. R. 530. 
 
 {r) 6 G. 4, c. 16. s. 3, repealed and re-enacted by 12 & 13 Vict. c. 106, s. 67. 
 
 («) Eckhard v. Wilson, 8 T. R. 142, per Cur.; Bamford v. Baron, 2 T. R. 594, 
 note [a) ; Tappenden v. Burgess, 4 East, 230, per Lord EUenborough ; Ex parte 
 Cawkwell, 1 Rose, 313. 
 
 {t) Ex parte Crawford, 1 Chris. B. L. 97, 140; Ex parte Low, 1 G. & J. 84, per 
 Lord Eldon; Ex parte Cawkwell, 1 Rose, 313; Ex parte Shaw, 1 Mad. 598; Back 
 V. Gooch, 4 Camp. 432 ; S. C. Holt, 13.
 
 408 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 for it is not fraudulent as to them. Nor can a trust deed which could 
 not have been impeached under a fiat sued out by any creditor be im- 
 peached under the bankrupt's own fiat.(«) 
 
 The late act(y) has now provided, that where any trader within the 
 act shall execute any conveyance or assignment by deed of all his estate 
 and effects to a trustee or trustees for the benefit of all his creditors, 
 it shall not be deemed an act of bankruptcy, unless a petition for adju- 
 dication of bankruptcy be filed within three months from the execution 
 thereof; provided that such deed be executed by every such trustee \i\i\\\n 
 „ fifteen days after the execution thereof by the trader; *and that 
 L -1 the execution by such trader and every such trustee be attested 
 hy an attorney or solicitor ; and that notice thereof be given within one 
 month after the execution by such trader, in manner therein specified." 
 
 If the above requisitions, therefore, be complied with, the trust deed 
 will now be unimpeachable after a period of three months ; but until the 
 expiration of that time the trustees must forbear to act, as all their pro- 
 ceedings may be overreached by a subsequent adjudication of bankruptcy. 
 However, the trustees may begin the execution of their office even at an 
 earlier day, if they can only satisfy themselves cither that all the credi- 
 tors have concurred or acquiesced in the arrangement, or that such as 
 have not cannot, either collectively or individually, prove a debt or debts 
 in the requisite amount to support an adjudication of bankruptcy. 
 
 Such is the law afTecting traders where the assignment is of their ^ohole 
 property. If a trader assign pari only in trust for creditors, then, if the 
 transaction he fair and hona fide, and in the ordinary course of business, 
 it is not open to objection ;(w) but if the trader contemplated bank- 
 ruptcy,(a;) or even thought it probable, though not inevitable, (^) and 
 wished to give an undue preference to certain creditors over others, it 
 is fraxululent within the meaning of the statute, and constitutes an act 
 of bankruptcy. 
 
 Before proceeding to the duties of trustees, it may be convenient to 
 r*48n enlarge upon the two distinct classes into which *trusts for pay- 
 L J ment of debts may be divided, viz. : trusts irrevocable and trusts 
 revocable. 
 
 1. The existence of a debt is always a sufl&cient consideration to sup- 
 port an assurance ; and therefore if A. be indebted to B., and convey an 
 
 [u) Ex parte Philpot, De Gex, 346; Ex parte Louch, id. 4G3 ; Ex parte Lofts, 
 id. 612. 
 
 iy) 12 & 13 Vict. c. 106, s. 68. 
 
 [w) Hale V. Allnut, 18 Com. B. Re. 505; Wheelwright v. Jackson, 5 Taunt. 
 109 ; Hartshorn v. Slodden ; 2 B. & P. 582 ; Fidgeon v. Sharp, 5 Taunt. 539 ; 
 Small V. Oudley, 2 P. W. 427 ; Cock v. Goodfellow, 10 Mod. 489; Compton v. 
 Bedford, 1 W. Bl. 362, per Lord Mansfield; Hooper v. Smith, 1 W. Bl. 441; 
 Alderson V. Temple, 4 Burr. 2240, per Lord Mansfield; Wilson v. Day, 2 Burr. 
 830,^67- eundem ; ib. 831, per Forster and Wilmot; Jacob v. Sheppard, cited 
 Worsley v. Demattos, 1 Burr. 478 ; Harman v. Fisher, Cowp. 123, per Lord Mans- 
 field ; Rust V. Cooper, Cowp. 634, per eundem ; Ex parte Scudamore, 3 Ves. 85 ; 
 and see Estwick v. Caillaud, 5 T. R. 424; Newton v. Chantler, 7 East, 144. 
 
 {x) Linton v. Bartlet, 3 Wils. 47 ; Morgan v. Horseman, 3 Taunt. 241 ; Alderson 
 V. Temple, 4 Burr. 2238; Round v. Byde, 1 Cooke, B. L. 114, 3rd. ed. ; Devon v. 
 Watts, Doug. 86 ; Pulling v. Tucker, 4 B. & A. 382 ; Ilarmanv. Fisher, Cowp. 117. 
 
 (y) Poland V. Glyn, 2 D. & R. 310 ; Guthrie v. Crossley, 2 C. & P. 301.
 
 DUTIES OF TRUSTEES FOR PAYMENT OF DEBTS. 409 
 
 estate to him by way of security, the deed, though no money passed at 
 the time, cannot be revoked, but B. may insist on the benefit of it. And 
 if the creditor be not a party to the deed, yet if, by arrangement between 
 him and the debtor, an estate is vested in a trustee for securing the debt, 
 he can enforce the trust. (,v) Even where a debtor entered into an arrange- 
 ment with three of his creditors, and in pursuance thereof, by a deed 
 between himself of the first part, the three creditors of the second part, 
 and his other creditors of the third part, conveyed all his real and per- 
 sonal estate to the three creditors, in trust for themselves and the other 
 creditors, it was held that the intention was to make the creditors rcsfuis 
 que trust, and that the deed was irrevocable ; and no distinction was taken 
 between the three creditors and the other creditors, although the latter 
 apparently had not been in communication with the debtor previous to 
 the deed, and had not executed it until some time afterwards. (a) 
 
 2. On the other hand, if a debtor, without communication with his 
 creditors, and, indeed, only from motives of personal convenience, as on 
 going abroad,^?;) vest an estate in trustees upon trust to pay his debts, 
 such a deed confers no right upon the creditors who are neither parties 
 nor privies, and the debtor may at any time, at his pleasure, revoke or 
 vary the trusts, or call for the re-transfer of the property. (c) And if 
 two persons have different interests in the same estate, and they, by 
 arrangement between themselves, but without communication with any 
 creditor, convey the property to trustees, upon trust to pay the debts of 
 either party; here, though each may enforce the trust as against the 
 other, yet the creditor, as he neither required the security, nor was an 
 object of bounty, *cannot compel the execution of the trust in r-^ .o.^-i 
 his own favour. (f?) And a fortiori, this is the case if the pay- L "'J 
 ment of the debt is to be made only on the request of the settlor. ^^ IJut, 
 of course, the trust cannot be revoked by the settlor, so as to defeat or 
 prejudice what the trustees may have previously done in the due execu- 
 tion of the trust. (/) 
 
 In Garrard v. Lauderdale, the Duke of York, by indenture between 
 himself of the first part, and trustees of the second part, and the credi- 
 tors of the third part, conveyed certain property to trustees upon trust 
 for his creditors, and upon the execution of the deed a circular to that 
 effect was sent to each of the creditors. Here there was ground for con- 
 tending that, as the creditors had been induced by the notice to forbear 
 suing the settlor, they had acquired a right to the execution of the trust, 
 but Sir L. Sliadwell, observing that the receipt of the circular was not 
 admitted, and that, if received, yet the creditors had not refrained from 
 suing, as they had proved against the Duke's estate, decided that the 
 
 (z) Wilding v. Richards, 1 Coll. GGl. 
 
 (a) Mackinnon v. Stewart, 1 Sim. N. S. VG. 
 
 (b) Cornthwaite v. Frith, 4 De Gex & Sm. 552. 
 
 (c) Walwyn v. Coutts, 3 Sim. 14 ; 3 Mer. 707 ; Smith v. Keating, G Com. B. Re. 
 136 ; Acton v. Woodgate, 2 M. & K. 492 ; Browne v. Cavendish, 1 Jon. k Lat. GOG. 
 
 (d) Gibbs V. Glamis, 11 Sim. 584; Simmonds v. Pallet!, 2 Jon. & Lat. 489. 
 (c) Evans v. Bagwell, 2 Con. & Laws. 612. 
 
 (/) Wilding v. Richards, 1 Coll. 655, see 659; andseeKirwnn v. Daniel, 5 Hare, 
 493.
 
 410 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 creditors had no equity to enforce the trust,(r7) and the decree, on appeal 
 to Lord Brougham, was affirmed. (/i) The authority, however, of this 
 case has, on several occasions, been questioned ;(i) and Lord St. Leonards 
 on one occasion observed he should be sorry to have it understood that a 
 man may create a trust for creditors, communicate it to them, and obtain 
 from them the benefit of their lying by until perhaps the legal right to 
 sue was lost, and then insist that the trust was wholly within his power.(Zj) 
 There can be little doubt that upon the general principles of equity the 
 settlor, by giving notice to the trustees, and by subsequent conduct, may 
 confer on the creditors a right which they did not originally possess. (/) 
 And indeed it has now been ^decided that if property be assigned 
 L J to a trustee, and he takes possession of it, and communicates with 
 certain of the creditors, who express their satisfaction, the trust is irre- 
 vocable, (w) 
 
 In one case, where property was vested in a trustee for creditors, and 
 the trustee was a surety for some of the debts, it was held that, though 
 the trust was revocable as to the general creditors, yet the trustee him- 
 self was not bound to reconvey the estate until the suretyship was satis- 
 fied. («) 
 
 It does not clearly appear from the authorities what is the precise 
 nature of a revocable trust of this kind. The instrument is sometimes 
 called a deed of agency, and if so, the trust must be considered at an 
 end at the death of the settlor, and the property, so far as it has not 
 been applied, must be administered as part of the settlor's assets. (o) It 
 is perfectly clear that the trust is not regarded as revocable only during 
 the life of the settlor, so as to give a vested interest to the creditor after 
 his death, for it has been held that the creditor has no more equity to 
 enforce the trust after the settlor's death than in his lifetime. (p) 
 
 The courts at the present day consider the doctrine under which these 
 deeds have been held revocable to have been carried far enough, and 
 have expressed a disinclination to extend it. (5) 
 
 We now proceed to the duties of trustees for payment of debts, and 
 upon this subject we shall consider, 1, What debts are to be paid; 2, 
 In what order as regards priority ; and 3, What interest is to be allowed. 
 
 {g) 3 Sim. 1. 
 
 {h) 2 Russ. & MyL 451 ; and see Cornthwaite v. Frith, 4 De Gex & Sm. 552; 
 Stone V. Van Heythuysen, Kay, 727. 
 
 [i) See Acton v. Woodgate, 2 M. & K. 495; Kirwan v. Daniel, 5 JHare, 499; 
 Simmonds v. Palles, 2 Jon. & Lat. 495, 504. 
 
 {k) Browne v. Cavendish, 1 Jon. & Lat. 635; 7 Ir. Eq. Rep. 388. 
 
 {I) Perhaps the old case of Langton v. Tracy, 2 Ch. Rep. 30, was decided on this 
 principle, for it appears that Tracy, the trustee, declared to the creditors that he 
 would pay the debts, and that some of the debts were actually paid, under the 
 deed. The creditors may also have been privies though not parties to the execu- 
 tion of the trust, for it is stated that the settlor executed the deed to avoid prose- 
 cution against him by his creditors. 
 
 (m) Harland V. Binks, 15 Q. B. Rep. 713; Nicholson v. Tutin, 2 Kay & Johns. 18. 
 
 In) Wilding v. Richards, 1 Coll. 655. (0) Wilding v. Richards, 1 Coll. 655. 
 
 {p) Garrard v. Lauderdale, 3 Sim. 1. 
 
 [q) Wilding V. Richards, 1 Coll. 659 ; Kirwan v. Daniel, 5 Hare, 499 ; Simmonds 
 T. Palles, 2 Jon. & Lat. 495, 504; Brown v. Cavendish, 1 Jon. & Lat. 635; Evans 
 V. Bagwell, 2 Con. & Laws. 616.
 
 DUTIES OF TRUSTEES FOR PAYMENT OF DEBTS. 411 
 
 1. Wliat debts are ivifhin the scojye of the trust. 
 
 If tte trust be created by deed, then, unless a contrary inten- r^u jqj^-, 
 *tion be expressed, the debts only at the date of the deed will L J 
 be intended ;(;•) but if the provision be contained in a will, the direction 
 will include all debts at the testator's death ; unless he specially restrict 
 his meaning to the debts at the making of his will.(s) 
 
 If a settlor convey all his real and personal property upon trust to pay 
 " all debts then owing by him, and which affect the estates thereby con- 
 veyed ;" the trust, if the settlor have no judgment debts at the time, will 
 be extended to bond debts, but not to simj^Ie contract debts. (^) 
 
 A direction for payment of debts will not revive a debt barred by the 
 Statute of Limitations,(H) though the trustee or executor may have adver- 
 tised for all creditors to come in and prove their debts. (i-) But if the 
 claim be not barred at the date of the deed or the death of the testator, 
 the statute will not run afterwards ;(?c) for it is not to be inferred that a 
 man abandons his debt because he does not enforce payment at law when 
 he has a trustee to pay hira.(ic) Besides, unless delayed of necessity, 
 the trustee ought to discharge the debt at once, and the universal rule 
 is, that the cestui que trust ought not to suffer for the laches of the 
 trustee. (^) 
 
 By the 40th section of the late Statute of Limitations(z) it is declared, 
 that " no action, suit, or other proceeding shall be brought to recover 
 any sum of money charged upon or payable out of any land at law or in 
 equity, but within twenty years next after a present right to receive the 
 same accrued to some person capable of giving a discharge for or release 
 of the same, unless, in the mean time, some part thereof, or of the in- 
 terest thereon, shall have been paid, or some acknowledgment of the 
 right thereof shall have been given in writing, signed by the person by 
 whom the same shall *be payable, or his agent." Upon the con- p^ic'T 
 struction of this clause it was held, that where a testatrix had L J 
 devised an estate to trustees upon trust to sell and pay debts, but no part 
 of the produce of sale had been set apart for that purpose, the right of 
 the creditor was not within the exception of the 25th section, but fell 
 under the 40th section ; but inasmuch as the debt had been acknowledged 
 by the surviving trustee, that was sufficient to take the case out of the 
 statute. (rt) But the opinion of the vice-chancellor that the case was not 
 within the 25th section cannot, it is conceived, be supported. The right 
 
 (r) Purefoy v. Purefoy, 1 Vern. 28. 
 
 (s) Loddington v. Kime, 3 Lev. 433. 
 
 {t) Douglas V. Allen, 1 Con. & Laws. 367; 2 Drur. & War. 213. 
 
 (m) Burke v. Jones, 2 V. & B. 275, where all the cases are collected. 
 
 [v) Jones V. Scott, 1 R. & M. 255; 4 CI. k Fin. 382; overruling Andrews v. 
 Brown, Pr. Ch. 385. 
 
 {w) Hughes V. Wynne, 1 T. & R. 307 ; Crallan v. Oulton, 3 Beav. 1 ; Ilargreaves 
 V. Mitchell, 6 Mad. 326 ; Executors of Fergus v. Gore, 1 Sch. k Lef. 107 ; and see 
 Morse v. Langham, cited Burke v. Jones, 2 V. & B. 286. 
 
 (a;) Hughes v. Wynne, 1 T. & R. 309, per Cur. 
 
 (y) See Executors of Fergus v. Gore, 1 Sch. k Lef. 110. 
 
 (z) 3 & 4 W. 4, c. 27. 
 
 (a) Lord St. John v. Bough ton, 9 Sim. 219.
 
 412 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 of the creditor would subsist until adverse possession had run against 
 his trustee. (Z*) 
 
 The rule that the creation of a trust keeps alive a debt not barred at 
 the testator's death does not apply to a trust declared of jjersonal estate 
 by will, for the personalty vests in the executor upon trust for the credi- 
 tors by act of law, so that the words of the will are nugatory. (c) 
 
 The terras of the trust will extend to the repayment of a sum of money 
 borrowed by an infant for the purchase of necessaries. ((/) 
 
 Shall a mortgagee who has a covenant for payment of his debt be 
 allowed to prove and receive a dividend upon the whole amount of his 
 debt pari passu with the other creditors, or shall he prove only for the 
 excess of the debt beyond the value of the security, or what rule is to 
 govern the case? In bankruptcy, the mortgagee proves only for the 
 excess of the mortgage debt over the value of the security, so that he 
 must first dispose of the estate, (with the concurrence of the trustees to 
 pass the equity of redemption,) and then prove for the difference. But 
 in the administration of assets by courts of equity, a mortgagee is allowed 
 to prove for his whole debt without being put on terms as to his secu- 
 rity, (e) The trust deed usually provides for the case of persons having 
 r*zisn specific liens, and ^ingrafts the principle established in bank- 
 L -I ruptcy ; but if there be no such clause, and if the deed provide 
 that the creditor shall release his debt and all securities for the same, 
 the mortgagee, by executing the deed, binds himself to the other credi- 
 tors, notwithstanding any private arrangement with the debtor to the 
 contrary, that he will not take advantage of his specific lien, but will 
 bring it into the common stock and prove for his whole debt, and accept 
 a dividend jaarijjassM with the rest.(/) " It is established," said Lord 
 Langdale, " by a series of decisions, that a creditor cannot ostensibly 
 accept a composition and sign the deed which expresses his acceptance 
 of the terms, and at the same time stipulate for, or secure to himself, a 
 peculiar and separate advantage which is not expressed upon the 
 deed."((/) "The moment," observed Lord Lyndhurst, "a creditor 
 releases his debt, which he does by executing a deed of this kind, there 
 is, of course, an end of any lien he may have for it."(7i) But though 
 the word ''release" be used in the deed, it will not necessarily operate 
 as an absolute and unconditional release, if the whole contents of the 
 instrument, when taken together, show that such was not the inten- 
 tion. (A 
 
 If a trust be for payment of such creditors as shall come in within a 
 year, it seems a creditor who delays beyond the year is not therefore pre- 
 
 {b) See infra as to the Statutes of Limitation. 
 
 (c) Jones V. Scott, 1 R. & M. 255 ; reversed, 4 CI. & Fin. 382; Freake v. Crane- 
 feldt, 3 M. & C. 499 ; Evans v. Tweedy, 1 Beav. 55. 
 
 {d) Marlow v. Pitfield, 1 P. W. 558. 
 
 \e) See Greenwood v. Taylor, 1 R. & M. 185; Mason v. Bogg, 2 M. & C. 443; 
 Rome V. Young, 4 Y. & C. 204 ; Hanman v. Riley, 9 Hare, App. xli. 
 
 (/) Cullingworth v. Lloyd, 2 Beav. 385; Buck v. Sh'ippam, 1 Phil. 694 ; 14 
 Sim. 239. 
 
 io) Cullingworth v. Lloyd, 2 Beav. 391. 
 
 [h) Buck V. Shippam, 1 Phil. 697. (?) Squire v. Ford, 9 Hare, 47.
 
 DUTIES OF TRUSTEES FOR PAYMENT OF DEBTS. 413 
 
 eluded from taking advantage of the trust, but the clause is regarded as 
 directory only.(/i;) 
 
 But a creditor who repudiates the deed by his acts, as by suing the 
 debtor contrary to the provisions of the deed, will not be allowed after- 
 wards (more particularly after a long lapse of time) to retrace his steps 
 and take the benefit of the deed ; and though the trustee admit him to 
 sign the deed, the other creditors will not be bound by the act of the 
 trustee. (?) 
 
 A discretion is sometimes given to the trustees to admit or r-^Ao-r-i 
 *exclude such creditors as they shall think proper. The court L J 
 will endeavour, if possible, to withdraw the rights of the creditors from 
 the caprice of the trustees ;(m) but if the settlement clearly give such a 
 discretionary power, and the trustees are willing to exercise it, and no 
 fraud be found, the court cannot interfere to compel the admission of 
 any particular creditor, (m) 
 
 If the trustees have a power of enlarging the time and advertise to 
 that eflfect, but do not exercise the power, and so exclude a person who 
 desired to come in, but could not do so before the day named in the 
 deed, the creditor will be relieved in equity. (o) 
 
 If there be trustees for payment of debts and legacies, and subject 
 thereto upon trust for A. for life with remainder over, and the court has 
 taken an account of debts and legacies, and declared A. entitled to the 
 possession, who is put in possession accordingly, it is not competent for 
 the trustees afterwards to make an admission of some further debt, and 
 to resume the possession in order to discharge it. (2?) 
 
 2. As to the order of payment. 
 
 Where the trust is created by will, the direction generally is for pay- 
 ment of <' debts and legacies." As regards the administration of assets, 
 creditors take precedence of legatees ; but here, as both take under the 
 will, and the testator has made no distinction, it seems, upon strict 
 principle, as was formerly held, that creditors and legatees ought to be 
 paid par ^J9ass^t.(g') However, there can be little doubt, that the testa- 
 tor, although he may not have explicitly declared it, meant the creditors 
 to precede, and the courts accordingly (rather straining a point, that a 
 man might not <'sin in his grave") have now indisputably established 
 that creditors shall have the priority.(r) 
 
 {k) Dunch v. Kent, 1 Vern. 2G0 ; and see Collins v. Reece, 1 Coll. 675; Jolly y. 
 Norton, 3 Esp. 228; Raworth v. Parker, 2 Kay & Johns. 1G3 ; Spottiswoode v. 
 Stockdale, Coop. 102; but see Emmet v. Dewhurst, 3 Mac. & Gor. 587. 
 
 (I) Field V. Donoughmore, 1 Dru. & War. 227; reversing the decision of Lord 
 Plunkett, 2 Dm. & Walsh. 630. 
 
 (m) See Nunn v. Wilsmore, 8 T. R. 521. 
 
 (re) Wain r. Egmont, 3 M. & K. 445. 
 
 (0) Raworth v. Parker, 2 Kay & Johns. 1G3. 
 
 {■p) Underwood v. Hatton, 5 Beav. 36. 
 
 (9) Hixon V. Wytham, 1 Ch. Ca. 248 ; Gosling v. Dorney, 1 Vern. 482 ; Anon. 
 2 Vern. 133 ; Powell's case, Nels. 202 ; Wolestoncroft v. Long, 1 Ch. Ca. 32 : and 
 see Walker v. Meager, 2 P. W. 552. 
 
 (r) Greaves v. Powell, 2 Vern. 248, 302, Raithby's ed. ; Bradgate v. Ridlington, 
 Mose. 56; 1 Eq. Ca. Ab. 141, pi. 3; Walker v. Meager, 2 P. W. 550; Martin v. 
 Hooper, Rep. t. Hardwicke, by Ridgw. 209; Whitton v. Lloyd, 1 Ch. Ca. 275; 
 Foly's case, 2 Freem. 40 : Kidney v. Coussmaker, 12 Ves. 154, per Sir W. Grant ; 
 
 March, 1858.— 27
 
 414 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 *As amongst the creditors tbemselves, the court acts upon the 
 V-^^^] well-known principle that '' equality is equity," and, therefore, 
 whether the trust be created by deed(N) or will,(^) the specialty debts in 
 the absence of express directions to the contrary will have no advantage 
 over simple contract debts, but all will be paid in rateable proportions ; 
 and,of course, the trustees will not be allowed to break in upon this 
 rule by first discharging their own debts. (?<) 
 
 It was formerly ruled, that where a testator charged his freehold 
 estate with debts, and the estate subject to the charge descended to the 
 heir, the specialty creditor had precedence, for it was argued he had his 
 remedy at law against the heir independently of the will, and therefore 
 ought not to be put on a level with those taking under the will.(r) The 
 answer is, that the specialty creditor has no Hen upon the estate, but can 
 only recover the debt from the heir personally to the extent of the assets 
 descended. If the estate be subject to the charge, the heir takes not 
 beneficially but only as trustee, and then there are no legal assets in 
 consideration of equity, and the bond creditor may be injoined from 
 pursuing his legal right ; and on these grounds it has been decided that 
 specialty debts are not entitled to a preference. (u-) 
 
 It was also thought at one time, that if the estate charged with the 
 debts was to be administered by the executor, the testator must have 
 meant that the executor should, as in his executorial capacity, observe 
 the legal priorities •,[x) however, there was no reason, in fact, why the 
 characters of trustee and *executor should not be united in the 
 L -I same person without confusion, and so it has since been deter- 
 mined.(a-a;) But if the trust be expressly to pay the settlor's debts 
 " according to their priority, nature, and specialty," a bond-debt with 
 interest is payable before a simple contract debt.(^) 
 
 3. As to alloinance of interest. 
 
 Whether the trust be created by deed,(s) or will,(a) and though the 
 
 Peter v. Bruen, cited 2 P. W. 551; Lloyd v. Williams, 2 Atk. Ill, per Lord 
 Ilardwicke. 
 
 (s) Wolestoncroft v. Long, 1 Ch. Ca. 32 ; Hamilton v. Houghton, 2 Bligh, 187, 
 per Lord Eldon ; Child v. Stephens, 1 Vern. 101. 
 
 (<) Wolestoncroft v. Long, 1 Ch. Ca. 32 ; Anon. 2 Ch. Ca. 54; &c. 
 
 (m) Anon. 2 Ch. Ca. 54. 
 
 (I'j Fremoult v. Dedire, 1 P. W. 429 ; Young v. Dennet, 2 Dick. 452 ; Blatch v. 
 Wilder, 1 Atk. 420; Allam v. Heber, Str. 1270; S. C. W. Black, 22; and see 
 Pljinket V. Penson, 2 Atk. 290. 
 
 (w) Shiphard v. Lutwidge, 8 Ves. 26; Pope v. Gwyn, cited ib. 28, note; Bailey 
 v. Ekins, 7 Ves. 319; Batson v. Lindegreen, 2 B. C. C. 94; Hargrave v. Tindal, 
 cited Newton v. Bennet, 1 B. C. C. 136, note. 
 
 (x) Girling v. Lee, 1 Vern. 63 ; Cutterback v. Smith, Pr. Ch. 127; Bickham v. 
 Freeman, ib. 136; Masham v. Harding, Bunb. 339 ; Foly's case, 2 Freem. 49. 
 
 {xx) Prowse v. Abingdon, 1 Atk. 482 ; Newton v. Bennet, 1 B. C. C. 135 ; Silk 
 V. Prime, ib. 138, note; S. C. 1 Dick. 384 ; Lewin v. Okeley, 2 Atk. 50; Barker 
 T. Boucher, 1 B. C. C. 140, note. 
 
 {y) Passingham v. Selby, 2 Coll. 405. 
 
 (2) Hamilton v. Houghton, 2 Bligh, 169, see 186; Car v. Burlington, 1 P. W. 
 228, as corrected in Cox's ed. ; Barwell v. Parker, 2 Ves. 364; Shirley v. Ferrers, 
 
 1 B. C. C. 41 : and see Stewart v. Noble, Vern. & Scriv. 536 ; Creuze t. Hunter, 
 
 2 Ves. jun. 165 ; S. C. 4 B. C. C. 319. 
 
 (a) Lloyd v. Williams, 2 Atk. 108 ; Stewart t. Noble, Vern. & Scriv. 528 ; Dol- 
 man v. Pritman, 3 Ch. Re. 64; Nels. 136; Freem. 133; Bath v. Bradford, 2 Ves.
 
 DUTIES OF TRUSTEES FOR PAYMENT OF DEBTS. 4]5 
 
 fund has been making interest,(6) the trustees will not be justified in 
 paying interest upon simph contract dehts ; and a fortiori, this is the 
 case where interest is expressly directed as to some particular debts. (c) 
 Where the trust was hy deed, but the creditors had not been made par- 
 ties, Lord Eldon observed, '< The mere direction to pay a debt does not 
 infer either contract or trust to pay interest upon debts by simple con- 
 tract. As to contract, the creditors did not execute the deed, and there 
 was nothing to prevent their suing the debtor after the execution, and 
 no consideration was given to the debtor by charging the land and dis- 
 charging the person. "(f/) And Lord Hardwicke said (though under the 
 altered state of the law the observation loses its force] it would be mis- 
 chievous to hold that the trust should make the simple contract debts 
 carry interest ; for if the trust were to change the nature of the debts and 
 burden the estate with interest, it would frighten people from doing jus- 
 tice to creditors. (fZcZ) It was once suggested by Lord *Abinger r:^_^nm 
 that " if a man execute a trust of a term for the benefit of his L J 
 creditors, the deed makes them mortgagees if they execute it, and so 
 gives them a right of iuterest."(e) And it was held in some old 
 authorities, that even in a deed to tcJiich the creditors were not j^ar ties, 
 or in a trust created by will for payment of debts, the creditors were to 
 be regarded as mortgagees and were entitled to interest ;(/) but the doc- 
 trine in these cases has long since been overthrown, and it is apprehended 
 that even the distinction taken by the chief baron cannot at the present 
 day be supported. (^) Again, it was said by Lord Hardwicke that " if 
 a man hy deed in his life creates a trust for payment of his debts, 
 annexes a schedule of some debts, and creates a trust term for the pay- 
 ment, as that is in the nature of a specialty, it will make these, though 
 simple contract debts, carry interest."(7i) But this dictum also is not 
 in conformity with the law as now established, and cannot be main- 
 tained. (/) 
 
 But where A, and B. assigned their Joint j^roperty to C, D., and E. 
 upon trust, in the first place to pay the Joint debts at the expiration of a 
 year from the date of the assignment, and then as to a moiety to pay 
 the separate debts of A., and at the end of a year sufficient assets were 
 realised to have discharged the joint debts, but the money, instead of 
 being so applied, was invested in the funds and the interest accumulated, 
 it was held, that as the fund applicable to the payment of the joint debts 
 
 588, per Lord Hardwicke ; and see Tait v. Northwick, 4 Ves. 816. Bothomly v. 
 Fairfax, 1 P. W. 334, note ; Maxwell v. Wettenhall, 2 P. W. 26, ed. by Cox, are 
 overruled. 
 
 {b) Shirley v. Ferrers, 1 B. C. C. 41 ; but see Pearce v. Slocombe, 3 Y. & C. 84. 
 
 (c) Jenkins v. Perry, 3 Y. & C. 178. 
 
 \d) Hamilton v. Houghton, 2 Bligh, 186. 
 
 {dd) See Barwell v. Parker, 2 Ves. 364 ; Bath v. Bradford, ib. 588. 
 
 \e) Jenkins v. Perrv, 3 Y. & C. 183. 
 
 (/) Maxwell v. Wettenhall, 2 P. "W. 27 ; Car v. Burlington, 1 P. W. 229. 
 
 [g) Barwell y. Parker, 2 Ves. 364. It must be borne in mind, however, that 
 the 46th Order of August, 1841, gives simple contract creditors a right to interest 
 from the date of the decree out of any surplus assets after paying all debts, and 
 the interest of such as by law carry interest. 
 
 (A) Barwell v. Parker, 2 Ves. 364. 
 
 (t) Stone V. Van Heythuysen, Kay, 721 ; Clowes v. Waters, 16 Jur. 632.
 
 416 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 had been making interest from the time the debts should have been 
 paid, the joint creditors, though on simple contract, were entitled to 
 interest at 4 per cent, before the separate creditors were paid their prin- 
 cipal. The separate creditors would otherwise try to impede the general 
 settlement, that, in the mean time, they might enjoy the interest from 
 the joint creditors' fund.(^") 
 
 *0f course the creditors may stipulate for payment of interest, 
 L -I or the settlor, if so minded, may insert such a direction. (?) But 
 a trust for payment of specialty and simple contract debts and all inte- 
 rest thereof, will not amount to such a direction, but the words will be 
 taken to have reference to the debts carrying interest of their own 
 nature, (m) 
 
 Specialty debts, though actually released by a creditor's deed, will 
 carry interest up to the time of payment. It might be urged, indeed, 
 that as regards specialty debts the amount of the debt is the principal 
 and interest ; and therefore in a trust for payment of debts, interest as 
 well as principal must be taken into calculation to ascertain what the 
 debt is at the date of the deed or the death of the testator; but that in- 
 terest ought not to run beyond the date of the trust deed or the death 
 of the testator, for that principal and interest together are then regarded 
 as one sum, not as a debt but an interest of a cesttii que trust. And 
 some principle of this kind appears to have been acted upon in the case 
 of Car V. Burlington, (??) where a person vested estates in trustees upon 
 trust to pay all such debts as he should owe at his death, and the court 
 directed the master to calculate interest on such of the debts as carried 
 interest itp to the death of the settlor ; but the master was not to carry on 
 any interest on any security beyond the settlor's decease, but in case 
 there were assets to pay the simple contract debts as well as the specialty 
 debts, the question of ulterior interest was reserved. At the present 
 .day, however, the rule is to consider the specialty debt as subsisting up 
 to the time of payment, i. e. to calculate interest on the principtal not 
 only up to the date of the deed or the death of the testator, but up to 
 the day of payment. (o) 
 
 Bond creditors, it must be observed, will not be entitled to receive 
 more for principal and interest than the amount of the penalty, (p) 
 
 
 (k) Pearce v. Slocombe, 3 Y. & C. 84. 
 
 \l) See Bath v. Bradford, 2 Ves. 588 ; Barwell v. Parker, ib. 364 ; Stewart v. 
 Noble, Vera. & Scriv. 536. 
 
 [m) Tail v. Northwick, 4 Ves. 816. 
 
 (n) 1 P. W. 228, as corrected in Cox's ed. from Reg. Lib. 
 
 ■(o) Bateman v. Margerison, 16 Beav. 477. 
 
 {p) Hughes y. Wynne, 1 M. & K. 20 ; Anon. 1 Salk. 154 : Clowes v. Waters, 16 
 Jar, 632.
 
 DUTIES OF TRUSTEES OF CHARITIES. 4I7 
 
 *CHAPTER XVIII. [*492] 
 
 THE DUTIES OP TRUSTEES OF CHARITIES. 
 
 Charities are either established by charter, as eleemosynary corpora- 
 tions, or are under the management of individual trustees. 
 
 Before entering upon tlie duties of trustees for charities, it may be 
 proper to introduce a few preliminary remarks upon the subject of the 
 court's jurisdiction over charities established by charter. 
 
 On the institution of such a charity a visitatorial jurisdiction arises 
 of common right to the founder, whether the king or a private person, 
 and his heirs, or to those whom the founder has substituted in the place 
 of himself and his heirs ;((^) and the office of visitor is to hear and de- 
 termine all differences of the members of the society amongst themselves, 
 and generally to siqjerintend the internal government of the body, and 
 to see that all rules and orders of the corporation are observed. h-\ The 
 visitor must take as his guide the statutes originally propounded by the 
 founder ;(s) but so long as he does not exceed his proper province, his 
 decision is final, and cannot be questioned by way of appealYA 
 
 With this visitatoi'ial power the Court of Chancery has nothing to 
 do : it is only as respects the administration of the corporate jiroperty 
 that equity assumes to itself any right of ^interference. "If," r:K<QqT 
 said Lord Commissioner Eyre, ''the governors established for L J 
 the regulation of a charity are not those intrusted with the management 
 of the revenue, the court has no jurisdiction : let the charity be ever so 
 much abused, as far as respects this court the abuse is without a remedy ; 
 but if those established as governors have also the management of the 
 revenue, the court does assume a jurisdiction of necessity so far as they 
 are to be considered as trustees of that revenue. 'Vm) <« There are two 
 sorts of authorities," said Lord Hardwicke, '' one as to the management 
 of the estate and revenue, the other as to the management and govern- 
 ment of the house. In the latter the governors are absolute, and not 
 controllable by the Court of Chancery; but so far as relates to the 
 estates of the charity, they are subject and accountable to this court."(4;) 
 
 Upon the ground of this distinction between the visitatorial power and 
 
 {q) Eden v. Foster, 2 P. W. 326, resolved; Attorney-General v. Gaunt, 3 Sw. 148. 
 
 (r) See Philips v. Bury, Skin. 478 ; Attorney-General v. Crook, 1 Keen, 126; 
 Attorney-General v. Archbishop of York, 2 R. & M. 468 ; In re Birmingham School, 
 Glib. Eq. Rep. 180, 181. 
 
 (s) Green v. Rutherforth, 1 Ves. 469, per Sir J. Strange; id. 4T2, per Lord 
 Hardwicke. 
 
 (C) St. John's College, Cambridge, v. Todington, 1 Burr. 200, per Lord Mans- 
 field ; Attorney-General v. Locke, 3 Atk. 165, per Lord Hardwicke; Attorney- 
 General V. The Master of Catharine Hall, Cambridge, Jac. 392, \)cv Lord Eldon. 
 
 {u) Attorney General v. The Governors of the Foundling Hospital, 2 Ves. jun. 
 47. But note. Chief Baron Richards once observed, he had been of counsel in 
 the Foundling Hospital case, and he remembered some of the first men of the 
 bar were not satisfied with the decision. In re Chertsey Market, 6 Price, 272. 
 
 {v) Attorney-General v. Locke, 3 Atk. 165 ; and see upon this subject E.x parte 
 Berkhampstead Free School, 2 V. & B. 138 ; The Poor of Chelmsford v. Mildmay, 
 Duke, 83; Attorney-General v. Earl of Clarendon, 17 Yes. 499 ; Eden v. Foster,
 
 418 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 tte management of the revenue, an information for the removal of go- 
 vernors or other corporators, as having been irregularly appointed, would 
 be dismissed with costs ;(«;) but wherever the administration of the j>ro- 
 perti/ by the governors can be shown to have a tendency to pervert the 
 end of the institution, the court will immediately interpose, and put a 
 stop to such wrongful application. (a;) 
 
 *An estate newly bestowed upon an old corporation is not to 
 [*494] ^^ regarded in the same light as property with which the charity 
 was originally endowed. The visitatorial power is forum domesticum — 
 the private jurisdiction of the founder; and the new gift will not be 
 made subject to it, unless the will of the donor be either actually ex- 
 pressed to that effect, or is to be collected by necessary implication.(?/) 
 If a legal or equitable interest be given to a body corporate, and no spe- 
 cial purpose be declared, the donor has plainly implied that the estate 
 shall be under the general statutes and rules of the society, and be regu- 
 lated in the same manner as the rest of their property :(.~) but if a par- 
 ticular and special trust be annexed to the gift, that excludes the visi- 
 tatorial power of the original founder; and the court, viewing the 
 corporation in the light of an ordinary trustee, will determine all the 
 same questions as would have fallen under its jurisdiction had the ad- 
 ministration of the fund been intrusted to the hands of individuals. 
 
 Thus, in Grreen v. Kutherforth,(a) an advowson was devised to St. 
 John's College, Cambridge, upon trust, when the church should become 
 void, to present "the senior divine then fellow of the College." A dis- 
 pute arose as to the true interpretation of the words ; and had the direc- 
 tion been contained in the statutes of the college, the construction would 
 have fallen under the visitatorial province ; but as the property was a 
 new donation, it was held the question was determinable in the forum 
 of the Court of Chancery. " A private person," it was said, " would 
 have been compellable to execute the will, and, considered as a trust, it 
 made no difference who were the trustees. Though here they were a 
 collegiate body whose founder had given a visitor to superintend his own 
 lounty, yet, as regarded one claiming under a separate benefactor, the 
 court would look on them as trustees, and would compel them to execute 
 the intent under the direction of the court, (i) The visitor, whose judg- 
 
 2 P. W. 326 ; Attorney-General v. Dixie, 13 Yes. 533, 539 ; Attorney-General v. 
 Corporation of Bedford, 2 Yes. 505 ; 5 Sim. 578 ; Attorney-General v. Browne's 
 Hospital, 17 Sim. 137; Attorney-General v. Governors of Dedham Grammar 
 School, 3 Jur. N. S. 325. 
 
 (w) Attorney-General v. Earl of Clarendon, 17 Yes. 491, see 498; Whiston v. 
 Dean & Chapter of Rochester, 7 Hare, 532 ; Attorney-General v. Dixie, 13 Yes. 
 519 ; Attorney-General v. Middleton, 2 Yes. 327, see 330 ; Attorney-General v. 
 Dulwich College, 4 Beav. 255 ; Attorney-General v. JIagdalen College, Oxford, 10 
 Beav. 402 ; Attorney-General v. Corporation of Bedford, id. 505 ; In re Bedford 
 Charity, 5 Sim. 578. 
 
 (x) See Attorney-General v. St. Cross Hospital, 17 Beav. 435 ; Attorney-Gene- 
 ral V. The Governors of the Foundling Hospital, 2 Yes. jun. 48 ; Attorney-General 
 v. Earl of Clarendon, 17 Yes. 499. 
 
 (y) Green v. Rutherforth, 1 Yes. 472, per Lord Hardwicke. 
 
 (z) Id. 473, per eundem ; Ex parte Inge, 2 R. & M. 596, per Lord Brougham ; 
 Attorney-General v. Clare Hall, 3 Atk. 675, per Lord Hardwicke. 
 
 (a) 1 Yes. 462. (6) 1 Yes. 468, 473.
 
 DUTIES OF TRUSTEES OF CHARITIES. 419 
 
 ment must be founded on the statutes, could *not execute the (-:}:4ncn 
 trusts of the will, for that would be departing from the statutes; >- ' -J 
 and the adhering to the statutes would be adding further circumstances 
 to the trust than the testator prescribed, and making it the founder's 
 will, and not the testator's/ '(t) 
 
 But even the visitatorial power may, under particular circumstances 
 and in a special manner, be exercised by the lord chancellor ; for the 
 crown may be visitor by the terms of the foundation, and if the heir of the 
 founder cannot be discovered, (t?) or become lunatic,(e) the visitatorial 
 power, rather than the corporation should not be visited at all, will result 
 to the crown. In civil corporations the king is visitor through the Court 
 of Queen's Bench ; for corporate bodies which respect the public police 
 of the country and the administration of justice, are necessarily better 
 regulated under the superintendence of a court of law : but as regards 
 eleemosynary corporations the king's visitatorial power has been com- 
 mitted to the lord chancellor, as in matters of charity the more appro- 
 priate supervisor. (/) And the mode of application to the lord chan- 
 cellor in these cases is by petition to the Great Seal.(y) 
 
 We proceed to the consideration of the duties of trustees of charities. 
 
 It is of course imposed upon the trustees whether individuals or a cor- 
 poration, not to convert the charity fund to other uses than according to 
 the intent of the founder or donor ; so long as those uses are capable of 
 execution. (A) Thus if the gift be to find a preacher in Dale, it would 
 be a breach of trust to provide one in Sale ; or if it be to find a preacher, 
 and the trustees apply it to the poor or to some other purpose ;(Q r* (q,>-i 
 *or if the trust be for the poor of 0., and the trustees extend it L ' J 
 to other parishes; (A or if the trust be to repair a chapel, and the rents 
 be mixed up with the poor-i'ate for parochial purposes ;(m) or if a fund 
 be raised for erecting an hospital, and it be diverted to lighting, paving, 
 and cleansing the town.(«) 
 
 A chapel was granted to the trustees of a school for the use and benefit 
 of the said school, and though the inhabitants of the hamlet had been 
 long accustomed to attend divine service in the chapel, it was held that, 
 as the chapel was for the exclusive benefit of the school, the trustees had 
 
 (c) 1 Ves. 469. 
 
 {d) Ex parte Wrangham, 2 Ves. jun. 609 ; Attorney-General v. Earl of Claren- 
 don, IV Ves. 498, per Sir W. Grant; Attorney-General v. Black, 11 Ves. 191; 
 Case of Queen's College, Cambridge, Jac. 1. 
 
 (e) Attorney-General v. Dixie, 13 Ves. 519, see 533. 
 
 (/) King V. St. Catharine's Hall, 4 T. R, 233, see 244 ; and see Ex parte Wrang- 
 ham, 2 Ves. jun. 619. 
 
 {g) See the cases cited in notes {d) and (<?) ; and Ex parte luge, 2 R. & M. 594 ; 
 Re Queen's College, Cambridge, 5 Russ. 64 ; Re University College, Oxford, 2 
 Phil. 521. 
 
 (A) See Attorney-General v. Sherborne School, 18 Beav. 256. 
 
 (t) Duke, 116; Attorney-General v. Newbury Corporation, C. P. Coop. Cases, 
 1837-38, 72 ; Attorney-General v. Goldsmiths' Company, ib. 292 ; and see Wive- 
 lescom's case, Duke, 94. 
 
 [l) Attorney-General v. Brandreth, 1 Y. & C. Ch. Re. 200. 
 
 \ra) Attorney-General v. Vivian, 1 Russ. 226, see 237. 
 
 \n) Attorney-General v. Kell, 2 Beav. 575.
 
 420 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 no power to apply tlie revenues of the charity towards enlarging the 
 chapel for the better accommodation of the inhabitants. (o) 
 
 The trustees for maintaining a chapel had pulled down the edifice, 
 converted the burial-ground to profane purposes, carried the bell to the 
 market-place, put the pews in the parish church, and employed the stones 
 of the chapel for repairing a bridge. Sir T. Plumer said, " It was an 
 enormous breach of trust, and such as could not have been expected in 
 a christian country f and directed an inquiry what emoluments had 
 come to the hands of the trustees on account of the breach of trust, and 
 what would be the expense of restoring the chapel to the state in which 
 it stood at the time of its destruction. (79) 
 
 A fund in aid and relief of " poor citizens who often were grievously 
 burdened by the imposts and taxes of the city," was held not to be appli- 
 cable to the payment of rates and other expenses of the city that would 
 otherwise have been raised by public levies and impositions, nor to be 
 distributable to such of the poor as received parish relief, for that would 
 be so much in aid of the rate-payers ; but ought to have been adminis- 
 tered for the exclusive benefit of the poor, and should therefore have 
 been confined to such of the poor as were not supported by the parish. (5) 
 *If land or money be given for maintaining « the worship of 
 L*4y7 J Q.Q(j^>j ^^^ nothing more be said, the court will execute the trust 
 in favour of the established form of religion. But if it be clearly 
 expressed upon the deed or will that the purpose of the settlor is to pro- 
 mote the maintenance of dissenting doctrines, the court, provided such 
 doctrines be not contrary to law, will execute the intention. (r) And 
 where a fund is raised for the purpose of founding a chapel (or indeed 
 any other charity,) and the contributors are so numerous as to preclude 
 the possibility of their all concurring in any instrument declaring the 
 trust, and such a declaration of trust is made by the persons in whom 
 the property is vested at or about the time when the sums have been 
 raised, that declaration may reasonably be taken prima /acie as the true 
 exposition of the minds of the contributors. (s) 
 
 Where an institution exists for the purpose of religious worship, and 
 it cannot be discovered from the instrument declaring the trust what 
 form or species of religious worship was in the intention of the settlors, 
 the court will then inquire what has been the usage of the congregation ; 
 and if such usage do not contravene public policy will be guided by it as 
 evidence of the intention in the administration of the trust. And by a 
 recent act, if the instrument of trust do not define the religious doctrines, 
 twenty-five years' usage immediately preceding any suit is made conclu- 
 sive evidence thereof/^) But if the purpose of the settlors appear clearly 
 
 (0) Attorney-General v. Earl of Mansfield, 2 Russ. 501. 
 
 Xp) Ex parte Greenhouse, 1 Mad. 92 ; reversed on technical ground, 1 Bl. N. 
 R. 17. 
 
 (g) Attorney-General y. Corporation of Exeter, 2 Russ. 45 ; S. C. 3 Russ. 395 ; 
 and see Attorney-General v. Bovill, 1 Phil. T62 ; Attorney-General v. Blizard, 21 
 Beav. 233. 
 
 (r) Attorney-General v. Pearson, 3 Mer. 409. per Lord Eldon ; see S. C. 7 
 Sim. 290. 
 
 (s) Attorney-General v. Clapham, 4 De Gex, M. & G. 626. 
 
 \t) Y & 8 Yict. c. 45, s. 2.
 
 DUTIES OF TRUSTEES OF CHARITIES. 421 
 
 upon the instrument, the court, in that case, though the usage of the 
 cono'regation may have run in a different channel, cannot change the 
 nature of the original institution : it is not competent for the majority of 
 the congregation, or for the managers of the property, to say, " We have 
 altered our opinions : the chapel in future shall be for the benefit of per- 
 sons of the same persuasion as ourselves. "(m) 
 
 *If the deed of endowment neither provide for the succession r^^gg-i 
 of trustees nor the election of the minister, an inquiry will be L J 
 directed, who, according to the nature of the establishment, are entitled 
 to propose trustees, and to elect the minister ;(t') and if the election of 
 the minister properly belong to the congregation, the majority is for that 
 purpose the congregation. (it) The appointment of the minister cannot, 
 in such a case, belong to the heir of the surviving trustee, who may not 
 be of the same persuasion, but, it might happen, a Roman Catholic or 
 Jew.(.):) 
 
 A minister in possession of a meeting-house is tenant at will to the 
 trustees, and his estate is determinable by demand of possession without 
 any previous notice. (^) But this merely tries the legal right without 
 affecting the question whether in equity the minister was properly de- 
 prived,(,:;) and if the minister be in possession, and preaching the doc- 
 trines that were intended by the founders, it is the practice of a court of 
 equity to continue him until the case can be heard, whether he was duly 
 elected or not (for the first point is to have the service performed) and 
 the court will pay him his salary. (a) 
 
 It is the policy of the established church by giving the minister an 
 estate for life in his ofiice, to render him in some degree independent of 
 the congregation ; but if it be the general usage amongst any particular 
 class of dissenters to appoint their ministers for limited periods, or to 
 make them removable at pleasure, though a court of equity might not 
 struggle hard in support of such a plan, there is no principle upon which 
 the court would not be bound to give it effect.(i) 
 
 To every corporation there belongs of common right the power of 
 establishing hyc-laws for the government of their own *body ; r^^gg-i 
 but this privilege cannot authorize the enactment of any rules or L J 
 regulations that would tend to pervert or destroy the directions of the 
 original founder and the objects of the charity.(c) And so a clause in 
 a deed investing the trustees, or the major part of them, with the power 
 of making orders from time to time upon matters relating to a meeting- 
 
 (m) S. C. 3 Mer. 400, per Lord Eldon ; Foley v. Wontner, 2 Jac. & Walk. 24T, 
 per eundem ; Craigdiillie v. Aikman, 1 Dow's P. C. 1 ; Milligan v. Mitchell, 3 M. & 
 C. 12 ; Broom v. Summers, 11 Sim. 353 ; Attorney-General v. Murdoch, 7 Hare, 
 445 ; 1 De Gex, M. & G. 86; Attorney-General v. Munro, 2 De Gex & Sm. 122. 
 
 {v) Davis V. Jenkins, 3 V. & B. 151, see 159 ; and see Leslie v. Biniie, 2 Russ. 114. 
 
 {w) Davis v. Jenkins, 3 V. & B. 155; and see Leslie v. Birnie, ubi supra. 
 
 (x) Davis v. Jenkins, 3 V. & B. 154. 
 
 [y] Doe v. Jones, 10 B. & Cr. 718 ; Doe v. M'Kaeg, 10 B. & Cr. 721 ; and seo 
 Brown v. Dawson, 12 Ad. & Ell. 624. 
 
 (z) See Doe v. Jones, 10 B. & Cr. 721. 
 
 (a) Foley v. Wontner, 2 Jac. & Walk, 247, per Lord Eldon. 
 
 (6) Attorney-General v. Pearson, 3 Mer. 402, 403, per Lord Eldon. 
 
 (c) Eden v. Foster. 2 P. W. 327, resolved.
 
 422 LEWIN ox THE LAW OF TRUSTS, ETC. 
 
 house would uot enable tliem to convert tlie meeting-house, whenever 
 they thought proper, into a meeting-house of a different description, and 
 for teaching diflFerent doctrines from those of the persons who founded 
 it, and by whom it was to be attended. (c/) 
 
 The charity funds cannot be diverted into a different channel without 
 the authority of an act of parliament ; and this may now be obtained 
 through the intervention of the charity commissioners, who are em- 
 powered to approve, provisionally, of a scheme varying from the original 
 endowment and submit it to parliament. (e) Until the act referred to, 
 trustees, before applying to the legislature, were in the habit of procur- 
 ing the sanction of the Court of Chancery ; for if they took such a step 
 upon the mere suggestion of their own minds, and failed in obtaining 
 the contemplated act, they were not allowed the costs and expenses in- 
 curred in the proceeding ;(/) but if the application to parliament was 
 attended with success, the trustees were then allowed their costs, though 
 the sanction of the lord chancellor had not been previously obtained ; 
 for the court could not with propriety pronounce those measures t® be 
 imprudent which the legislature itself had enacted as prudent. (t;') 
 
 But the management of the trust may contravene the letter of the 
 founder's will, and yet, on a favourable construction, be conformable to 
 the real intention. 
 
 P^.^^-, It was the opinion of Lord Eldon(7;) and Sir T. Plumer,(i') 
 L'^^'^J *that if the wish of the founder were to establish a free <jravi- 
 mar school, the chancellor, though he felt perfectly convinced that a free 
 grammar school, that is, a school for teaching the learned languages, 
 could be of little or no use, would yet be bound to apply the revenue as 
 the donor had directed, and could not substitute a school for teaching 
 English and writing and arithmetic. <'The duty of the court," said 
 Lord Eldon, " is to enforce the trusts as they stand : the founder was 
 the judge how far his institution was likely to be useful to the public."(A:) 
 But it has since been held by Lord Lyndhurst,(^ Sir John Leach,(wi) 
 Lord Langdale,(H) and Lord Cottenham,(o) that the court has jurisdic- 
 tion to extend the application of the charity fund to purposes beyond the 
 literal intention, and that v:riting and arithmetic may be well introduced 
 into a scheme for the establishment or better regulation of a free gram- 
 mar school. And this may of course be done in the case not of a free 
 grammar school but of a/?-ee school.(^p) 
 
 (d) Attorney-General v. Pearson, 3 Mer. 411, per Lord Eldon.. 
 
 (e) 16 & 17 Yict. c. 137, ss. 54-60. 
 
 (/) Attorney-General v. Earl of Mansfield, 2 Russ. 519, per Lord Eldon. 
 
 (g) lb. per eundem. 
 
 (A) Attorney-General v. Whiteley, 11 Yes. 241; Attorney-General v. Earl of 
 Mansfield, 2 Russ. 501. 
 
 (i) Attorney-General v. Dean of Christchurch, Jac. 474. 
 
 {k) Attorney-General v. Earl of Mansfield, 2 Russ. 521. 
 
 (l) Attorney-General y. Haberdashers' Company, 3 Russ. 530. 
 
 (to) Attorney-General v. Dixie, 2 M. & K. 342 ; Attorney-General v. Gascoigne, 
 id. 652. 
 
 (n) Attorney-General v. Caius College, 2 Keen, 150; Attorney-General v. Lady- 
 man, C. P. Coop. Cases, 1837-38, 180. 
 
 (o) Attorney-General v. Stamford, 1 Phil. 745. 
 
 Ip) Attorney- General v. Jackson, 2 Keen, 541.
 
 DUTIES OF TRUSTEES OF CHARITIES. 423 
 
 Now by the 3 & 4 Vict. c. 77, s. 1, it is enacted that whenever any 
 question may come under consideration, in any of her majesty's courts 
 of equity, concerning the system of education to be established in any 
 grammar school, or the right of admission into the same, it shall be 
 lawful for the court to make such decrees or orders as to the said court 
 shall seem expedient for extending the system of education to other 
 useful branches of literature and science, in addition to or (subject to the 
 provisions thereinafter contained) in lieu of the Greek and Latin lan- 
 guages, or such other instruction as may be required by the terms of the 
 foundation, or the existing statutes. 
 
 By the 13th section, the visitors of any school are enabled to require 
 from the master a return of the state thereof, of the books used therein, 
 and of such other particulars as they may think proper ; and also, to order 
 such examination of *thc scholars attending the same as may seem r^-A-i-i 
 expedient. And by the 14th, 15th and IGth sections, the court L J 
 is empowered, upon proper occasions, to enlarge the existing, or to create 
 new visitatorial powers, and to appoint, when necessary, a provisional 
 visitor. 
 
 By the 17th section it is enacted that it shall be lawful for the Court 
 of Chancery (upon application by petition under the 21st section,) to 
 empower the person or persons having powers of visitation in respect of 
 the discipline of any grammar school, or who shall be specially appointed 
 to exercise the same, under the said act, and the governors, or either of 
 them, after such inquiries, and by such mode of proceeding as the court 
 may direct, to remove any master of any grammar school who has been 
 negligent in the discharge of his duties, or who is unfit or incompetent 
 to discharge them properly or efiiciently, either from immoral conduct, 
 incapacity, age, or from any other infirmity or cause whatsoever, and by 
 a subsequent section, provision is made for the ejectment of the master 
 by a summary process from the premises in his occupation. 
 
 Where trustees were directed to apply the rents " towards the neces- 
 sary y?«f?/Hy a master and for the pains of such master," and the trustees 
 applied part of the revenue towards rchuilding and repairing the school- 
 room and school-house, it was held to be a good pursuance of the trust, 
 because a school-room and house were necessary, and if these were not 
 provided by the trustees, they must have been provided by the master 
 himself, and so it was in effect applied for the pains of the master. ((^) 
 
 So a trust "for the relief of the pejor" has been construed to authorize 
 an application of the funds to the building of a schooUtouse, and the edu- 
 cation of the poor of the parish. (/•) 
 
 So an estate had been given to trustees for the repair of a church and 
 chapel of ease thereto belonging, and, the parish having taken down the 
 chapel to erect a new one on a difierent site, it was determined that the 
 trustees had not exceeded the *line of their duty in expending |-^.„.,-. 
 the accumulated rents upon the rehuildinj of the chapel; but it L "J 
 was held the rents only, and not the corp)us of the estate, could be so 
 
 {q) Attorney-General v. Mayor of Stamford, 2 S\v. 592. 
 (r) Wilkinson v. Malin, 2 Tyr. 544, see 570.
 
 424 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 applied ; and the court had great doubts whether any thing could be laid 
 out upon i\\Q fitting-np of the chapel. (s) 
 
 And where the direction of the founder was that the master of a school 
 should receive 50?. a year, and the usher 30/f., and the trustees had raised 
 the salaries respectively to 80Z. and 60?., as the will did not contain any 
 prohibition against increasing the salaries, and it could not be supposed 
 that the trustees were not under any circumstances to alter the amount, 
 the court refused to compel the trustees to refund the augmentations. (<) 
 And, vice verm, if a fund be given, not for purposes of individual 
 benefit, but for the discharge of certain duties, as for the support of a 
 schoolmaster, and the fund increase to such an extent as to yield more 
 than a reasonable compensation for the duties to be performed, the court 
 will not allow the surplus to be expended unnecessarily, but will order it 
 to be applied for the promotion of some other charitable purpose. («) 
 
 Legacies had been left by several different testators (between the years 
 1545 and 1666) for the purpose of being lent out in sums varying from 
 hi. to 200?. without interest; and Sir J. Leach was of opinion, that, 
 regard being had to the alteration in the value of money, it was not in- 
 consistent with the intention of the testators to raise the loans to sums 
 varying from 100?. to 500?.(i;) 
 
 It need scarcely be remarked that a trustee would be guilty of a gross 
 breach of trust, should he keep the charity fund in his hands, and not 
 apply it, as it becomes payable, to the objects of the trust. (u') 
 
 It is a general rule, that trustees of charities have no ^authority 
 L J to make an absolute disposition of the charity estate : they could 
 not, for instance, part with lands to a purchaser, and substitute instead 
 the reservation of a rent.{x) And as the trustees may not alien abso- 
 lutely, so they may not accomplish the same end indirectly by demising 
 for long terms, as for 999 years ;(^) or for terms of ordinary duration, 
 with covenants for perpetual renewal ;(2) or by granting reversionary 
 terms, (a) 
 
 But there is no positive rule that in no instance shall an absolute dis- 
 position be made, for then the court itself could not authorize such an 
 act — a jurisdiction which, it is acknowledged, has from time to time 
 been exercised upon special cases made. '< I do not doubt," observed 
 Sir J. Wigram, '^ the existence of this power in the court: the trustees 
 have the power to sell at law, they can convey the legal estate, but it is 
 only a court of equity that can resell the property, and if that court 
 
 («) Attorney-General v. Foyster, 1 Anst. 116. 
 
 \t) Attorney-General v. Dean of Christchurch, 2 Russ. 321. 
 
 (m) Attorney-General v. Master of Brentford School, 1 M. & K. 3T6, see 394. 
 
 [v) Attorney-General v. Mercers' Company, 2 M. & K. 654 ; and see Attorney- 
 General V. Holland, 2 Y. & C. 683 ; Morden College case, cited ib. 701, 702. 
 
 {w) Duke, 116. 
 
 {x) Attorney-General v. Kerr, 2 Bear. 420 ; Blackston v. Hemsworth Hospital, 
 Duke, 49 ; Attorney-General t. Brettingham, 3 Beav. 91 ; and see Attorney- 
 General V. Buller, Jac. 412 ; Attorney-General v. Magdalen College, 18 Beav. 223. 
 
 {y) Attorney-General v. Green, 6 Yes. 452 ; Attorney-General v. Pargeter, 6 
 Beav. 150. 
 
 {z) Lydiatt v. Foach, 2 Yern. 410 ; Attorney-General v. Brooke, 18 Yes. 326. 
 
 (a) See Attorney-General v. Kerr, 2 Beav. 420.
 
 DUTIES OF TRUSTEES OF CHARITIES. 425 
 
 should sanction a sale it would be bound to protect tlie purclaaser.'V/jj 
 The true principle is, that an absolute disposition is then only to be con- 
 sidered a breach of trust when the proceeding is inconsistent with a pro- 
 vident administration of the estate for the benefit of the charity. (c) x\nd 
 the transaction will be strongly assumed to be improvident as against a 
 purchaser until he has established the contrary, (r/) A house which had 
 formerly produced a large income by being let in apartments had after- 
 wards fallen into a state of dilapidation and become unpi-oductive : the 
 charity had no funds to rebuild, but the materials and site were of con- 
 siderable value. The *master having reported that it would be r:icf:n^-i 
 for the advantage of the charity to dispose of the house. Sir W. L J 
 Grant, on the authority of a precedent which was produced to him, 
 directed a sale.(e) 
 
 Now under the provisions of the recent acts the commissioners of 
 charities are empowered on application made to them to authorize the 
 grant by charity trustees of building, repairing, improving, or other 
 leases, and the working of mines, and the sale or exchange of any part 
 of the charity property,(/) and the trustees are restricted from any sale, 
 mortgage or beneficial leases, vt ithout the sanction of the commissioners,(^) 
 and moneys arising from sales and exchanges may be laid out with the 
 consent of the commissioners in the purchase of other lands without a 
 license in mortmain. (7i) 
 
 Where there are accumulations from a charity estate, the court, on 
 application to it for directions, will not as a general rule sanction an 
 investment on land contrary to the spirit of the mortmain act.(«) ]iut 
 there is nothing illegal in such an investment, if accompanied with the 
 formalities required by the act, viz. an indenture sealed and delivered 
 in the presence of two credible witnesses, and inrolled within six calendar 
 months from the execution -yUc) and therefore should a highly beneficial 
 purchase ofi"er itself, the trustees themselves would, it is conceived, run 
 no risk in so investing the accumulations. (/) Indeed, the court itself 
 has made such an order where the purchase of the land was not the main 
 object, but incidental to a general scheme as for the enlargement of a 
 school, (m) 
 
 Trustees of a charity may lend the trust fund upon a mortgage of real 
 estate, though a legal condition is expressly reserved, and though after 
 
 (6) Attorney-General v. Newark, 1 Hare, 400. 
 
 (c) See Attorney-General v. Warren, 2 Sw. 302; S. C. Wils. 411; Attorney- 
 General v. Hungerford, 8 Bl. 43T ; S. C. 2 CI. & Fin. 357; Attorney-General v. 
 Kerr, 2 Beav. 428 ; Attorney-General v. South Sea Company, 4 ]?eav. 453 ; Attor- 
 ney-General V. Newark, 1 Hare, 395 ; Parke's Charity, 12 Sim. 329 ; Re Suir Is- 
 land Female Charity School, 3 Jones & Lat. 171. 
 
 ((f) Attorney-General v. Brettingham, 3 Beav. 91 ; Re Ashton Charity, 22 
 Beav. 288. 
 
 [e) Anon, case, cited Attorney-General v. Warren, 2 Sw. 300, 302. 
 
 (/) 16 & 17 Vict. c. 137, ss. 21, 24, 26 ; 18 & 19 Vict. c. 124, s. 32, 39. 
 
 {g) 18 & 19 Vict. c. 124, s. 29. {h) 18 & 19 Vict. c. 124, s. 35. 
 
 (?) Attorney-General v. Wilson, 2 Keen, 680. 
 
 {k) But see Attorney-General v. Day, 1 Ves. 222. 
 
 (/) See Vaughan v. Farrer, 2 Ves. 188. 
 
 (m) Attorne3--General v. Mansfield, 14 Sim. 601 ; Uonnor's Trust, V. C. Kinder- 
 sley, Mav 3, 1853.
 
 426 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 default an equity of redemption arises by the rules of equity. The Sta- 
 tute of Mortmain *(9 Geo. 2, c. 36,) which avoids conveyances 
 [*505J ^^ ^ charity containing any reservation or condition for the benefit 
 of the grantor, is held not to apply to such a case.(w) But of course care 
 should'' be taken that the mortgage be by indenture attested by two 
 witnesses, and inrolled. The court itself, its attention being directed 
 to the question, has authorized the trustees of a charity to lend on mort- 
 gage, (o) 
 
 Governors of charities cannot grant leases to or in trust for one of 
 themselves, for no trustee can be a tenant to himself, and the court will 
 charge him with an occupation rack rent.(p) Where two trustee were 
 expressly authorised by the will to grant a lease to themselves, or either 
 of them, with the consent of the tenant for life, and one of thein took a 
 lease accordingly, which was fair and proper, but it was found in effect 
 that the relative characters of trustee and lessee were inconsistent, and 
 led to inconveniences, the court removed the trustee at the instance of 
 the cestuis que trust, on the ground of the repugnant characters of trus- 
 tee and tenant ; and though the trustee offered to surrender the lease, 
 the court held him to it, and dismissed him from the trust. (5) And 
 trustees should be cautious how they grant leases to their own relations, 
 for that circumstance is calculated to excite a suspicion, which, if con- 
 firmed by any other fact, it might require a strong case to remove. (r) 
 So a lease should not contain any covenant for the private advantage of 
 the trustees : where a corporation directed the insertion of a covenant 
 that the lessee should grind at the corporation mill, in a suit for the 
 establishment of the charity the corporation were, for this instance of 
 misbehaviour, disallowed their costs, (s) 
 
 Where trustees have a power given to them in general terms 
 [ 506J -i,^^ gxnxii leases, it is said they may take fines or reserve rents 
 as, according to the circumstances of the case, may be most beneficial to 
 the charity.(/') If the trust estate held on lease increase in value from 
 the outlay of the tenant, the trustee is not called upon immediately to 
 raise the tenant's rent, for such a practice would obviously prevent any 
 improvement of the property.(«) Nor if the value of the estate increase 
 from the rise of agricultural produce will the trustee be liable, because 
 he neglects for a few months to raise the rent ; but if he wilfully con- 
 tinues the old rent when clearly a much higher can be obtained, he may 
 be held responsible. (v) 
 
 In granting leases of charity lands care must be taken that the lease 
 
 (n) Doe d. Graham v. Hawkins, 2 Q. B. Rep. 212. 
 
 (0) This -was done by M. R. in Att.-Gen. v. Gibson ; Ex parte Lushington ; Re 
 Lady Prior's Charity, July 21, 1853. The mortgage was for 50,000^. upon an estate 
 in Northamptonshire. 
 
 {p) Attorney-General v. Dixie, 13 Ves. 519, see 534: Attorney-General v. Earl 
 of Clarendon, Iv Ves. 491, see 500. {q) Passingham v. Sherborne, 9 Beav. 424. 
 
 (r) Ferraby v. Hobson, 2 Phill. 261, per Lord Cottenham ; and see Ex parte 
 Skinner, 2 Mer. 457. 
 
 is) Attorney-General v. Mayor of Stamford, 2 Sw. 592, 593. 
 t) Attorney-General v. Mayor of Stamford, 2 Sw. 592. 
 u) Ferraby v. Hobson, 2 Phill. 258, per Lord Cottenham. 
 v) See Ferraby v. Hobson, 2 Phill. 255.
 
 DUTIES or TRUSTEES OF CHARITIES. 427 
 
 be for an adequate consideration, and, if this be not observed, the court 
 will interfere and order the lease to be cancelled, and with the lease will 
 also cancel the covenants. (r/') 
 
 The lease may be annulled on the mere ground of under value ;(a3) but 
 it must be an under-value satisfactorily proved and considerable in 
 amount : it is not enough to show that a little more might have been 
 got for the estate, than has been actually obtained : still less is it suffi- 
 cient to infer the under-lettiug from the value of the property at some 
 subsequent period. (y) 
 
 Even where it was ordained at the creation of the trust, that no lease 
 should be made for above twenty-one years, and the rent should not he 
 raised, it was held the trustee would not be justified in granting leases 
 from time to time at no more than the original reservation. Lord Cowper 
 said '' That the rent should not be raised was a constitution just and 
 charitable for the encouragement of the tenant to improve the estate, 
 and he ought to find a benefit by it ; and the hospital *also would r^'n^j-i 
 find an advantage in having the rent well secured by an estate of L -^ 
 greater value, and consequently paid ; but the rule or constitution was 
 not to be followed according to the letter that no more rent was to be 
 taken than what was at first reserved, but as the times altered and the 
 price of provisions, &c., increased, so the rent ought to be raised in pro- 
 portion, "(s) 
 
 But, in considering the question of value it must be remembered that 
 the case of a charity estate is one in which, of all others, the securiti/ of 
 the rent is the first point to be regarded, and therefore the inadequacy 
 of the amount reserved is less a badge of fraud in this than it would be 
 in almost any other instance. (a) And Lord Eldon desired it might not 
 be considered to be his opinion that a tenant who had got a lease of 
 charity lands at too low a rate with reference to the actual value was 
 therefore to be turned out, if it appeared he had himself acted fairly and 
 honestly. The only ground for so dealing with him would be some 
 evidence or presumption of collusion or corruption of motive : if, for in- 
 stance the tenant happened to be a relation of the trustee, that was a 
 circumstance to create suspicion. (6) 
 
 WTien leases are set aside for under-value and the court awards a 
 compensation to the charity for the loss which has been sustained by the 
 charity through the collusion of the trustees and the tenant, the burden 
 will fall upon the trustees or the tenant according to the circumstances 
 of the transaction, (c) 
 
 (w) Attorney-General v. Morgan, 2 Russ. 30G. 
 
 (x) East V. Ryal, 2 P. W. 284; Attorney-General v. Lord Gower, 9 Mod. 224, 
 see 229; Attorney-General v. Magwood, 18 Ves. 315; Attorney-General v. Dixie, 
 13 Ves. 519; Poor of Yervel v. Sutton, Duke, 43; Eltham Parish v. "Warrcyn, 
 Duke, 67 ; Wright v. Newport Pond School, Duke, 4(j; Rowe v. Almsmen of Tavis- 
 tock, Duke, 42 ; Crouch v. Citizens of Worcester, Duke, 33 ; Attorney-General v. 
 Foord, 6 Beav. 288. (y) Attorney-General v. Cross, 3 Mer. 541, per Sir W. Grant. 
 
 (z) Watson v. Hinsworth Hospital, 2 Vern. 596 ; and see Lydiatt v. Foach, id. 
 410 ; Attorney-General v. Master of Catharine Hall, Cambridge, Jac. 381. 
 
 (a) Ex parte Skinner, 2 Mer. 457, per Lord Eldon. 
 
 (6) Ex parte Skinner, 3 Mer. 457. 
 
 (c) See Duke, 116 ; Poor of Yervel v. Sutton, id. 45 ; Attorney-General v. Mayor
 
 428 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 A lease of charity lands may also be invalidated on tlie ground of the 
 unreasonable extent of the term. 
 
 The duration of the lease should be such only as is consistent with 
 the fair and provident management of the estate. (cZ) *It would, 
 L ^^^J therefore, be a direct violation of duty to grant a lease for one 
 thousand years,(e) not only on the ground before noticed that such a 
 demise would in effect be an absolute alienation, but also on the principle 
 that no private proprietor would choose to debar himself from profiting 
 by the progressive improvement of the property. Sir Thomas Plumer 
 observed, " It is impossible to deny that such a lease is a decisive breach 
 of trust. The compensation which the trustees receive may be adequate 
 at the date of the contract, but they are precluded for one thousand years 
 from any advantage of increased value. It is true they are secured from 
 diminution, and in some instances to guard against fluctuation may be 
 as much the interest of one party as the other ; but that would be an 
 answer to all cases in which the trustees have made an alienation at a 
 fixed rent. The progress of events and the depreciation of money have 
 shown the improvidence of such agreements. At the same time," con- 
 tinued his honor, "it is just to say, that these principles seem not to 
 have been acted upon at so early a period as 1670. There is no case 
 produced in which mere improvidence, inferred solely from the extent 
 of the term, was held sufficient to rescind the transaction. In many 
 cases in Duke's collection the court acted on inadequacy of value, in none 
 on mere extent of term.(/) Where the alienation appeared at the time 
 to be a provident administration, the prospective possibility that it might 
 become inadequate does not appear, at that period, to have had the eftect 
 which it does at present. "((/) 
 
 JIusLcindrt/ or farm leases should be granted for a term certain not 
 exceeding twenty-one years.{li) But neither is this rule to be taken as 
 absolutely inflexible ; but where the ^alienation is for any longer 
 L ^ ^J period, as for ninety-nine years, the court would put it upon 
 those who are dealing for and with the charity estate to show the 
 reasonableness of such a transaction, ior prima facie it is unreasonable. 
 There is no instance of a power in a marriage settlement to lease for 
 ninety-nine years, except with reference to very particular circumstances : 
 the ordinary husbandry lease is for twenty-one years.(?') 
 
 of Stamford, 2 Sw. 592, per Cur.; Attorney-General v. Dixie, 13 Ves. 540; Rowe 
 V. Almsmen of Tavistock, Duke, 42. 
 
 {d) See Attorney-General v. Owen, 10 Ves. 560 ; Attorney-General v. Brooke, 
 18 Ves. 326 ; Attorney-General v. Griffith, 13 Ves. 575. 
 
 (e) Attorney-General v. Green, 6 Ves. 452 ; Attorney-General v. Cross, 3 Mer. 
 540; Attorney-General v. Dixie, 13 Ves. 531; Attorney-General v. Brooke, 18 
 Ves. 326. 
 
 (/) But see Poor of Yervel v. Sutton, Duke, 43, resolution 2 ; Rowe v. Alms- 
 men of Tavistock, id. 42 ; Wright v. Newport Pond School, id. 46 ; Crouch v. 
 Citizens of Worcester, id. 33. 
 
 [g) Attorney-General v. Warren, 2 Sw. 304. 
 
 [h) See Attorney-General v. Owen, 10 Ves. 560; Attorney-General v. Back- 
 house, IT Ves. 291 ; Rowe v. Almsmen of Tavistock, Duke, 42 ; Wi'ight v. New- 
 port Pond School, id. 46; Poor of Yervel v. Sutton, id. 43 ; resolution 2 ; Attor- 
 ney-General V. Pargeter, 6 Beav. 150. 
 
 (?) Attorne}--Gencral v. Owen, 10 Ves. 560, per Lord Eldon ; and see Attorney-
 
 DUTIES OF TRUSTEES OF CHARITIES. 429 
 
 la Attorney-General v. Cross(7»-) the trustees had been in the habit of 
 granting leases for ninety-nine years, determinable on lives in considera- 
 tion of fines and the reservation of a small rent, a mode of lotting very 
 general in the county where the lands were situate, and one which it 
 was proved had been adopted by the founder himself. On a bill filed to 
 set aside such a lease, Sir W. Grant said, " It is very diSicult to lay 
 down any abstract proposition as to the propriety or impropriety of leas- 
 ing charity estates in the manner complained of. Such a mode of letting, 
 generally objectionable, may, under particular circumstances, be the 
 most beneficial that can be adopted. With respect to a charity, indeed, 
 the reason against it is stronger than as to private estates, because the 
 purposes of the charity may be suffered to languish during the intervals 
 between the leases ; but still even as to charity estates it is impossible to 
 lay down any general rule. Though the expediency of letting charity 
 estates in this manner may be more or less questionable, according to 
 the nature of the charity and the circumstances and situation of the 
 estate, I am not aware of any principle or authority on which it can be 
 held that such a lease is on the very face of it a breach of trust. The 
 legislature has, both in enabling and disabling statutes, considered leases 
 for three lives as on a footing with leases for twenty-one years absolute. 
 So have the founders of charities, who prohibited the letting on lease for 
 more than three lives, *or twenty-one years. Supposing, how- rju'-iA-i 
 ever, that where charity estates have been letten for twenty-one L J 
 years it would be considered as impi'oper to substitute a letting for lives, 
 it does not follow that we can impute abuse to a mere adherence to the 
 ancient and uniform mode of letting, especially when it is a mode usual 
 in the district in which the estates are situate. In laying down pros- 
 pective rules for the regulation of a charity, it may be very fit to consider 
 which mode is best calculated to answer the particular purposes of such 
 charity ; but to set aside such a lease already existing it is not enough to 
 say that the mode of letting is not the best that might be prescribed, 
 because on such a point there may be a great diflFerence of opinion among 
 the most experienced : but you must show the mode is so positively bad, 
 that no persons meaning fairly to discharge their trust would have resort- 
 ed to it. This may be said of a lease for a long term of years absolute 
 at a stationary rent, because no man of a reasonable degree of providence 
 would so let his own estate ; but many landowners do still let their estate 
 upon leases for lives, and formerly the general usage in this county was 
 to let in this manner." And upon these grounds his honor dismissed 
 the bill, and allowed the trustees their costs out of the charity estate. 
 
 And in a later case, where charity lands had for two hundred years 
 been let for lives upon a fine or foregift at a small reserved rent, Lord 
 Langdale said there was no principle that a lease of a charitable es- 
 tate for lives was, on the face of it, a breach of trust ; and as there 
 
 General v. Griffith, 13 Ves. 575; Attorney-General v. Backhouse, 17 Vcs. 291 ; 
 Attorney-General v. Brooke, 18 Ves. 326; Attorney-General v. Lord Ilotham, T. 
 &R. 216; Attorney-General V. Kerr, 2 Beav. 421; Attorney-General v. Hall, 16 
 Beav. 388. 
 
 (k) 3 Mer. 524. 
 
 March, 1858.— 28
 
 430 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 appeared no other ground of invalidating the leases, lie refused to set 
 them aside. (?) 
 
 Building leases should be for a term not exceeding sixty, or ninety, 
 or ninety-nine years. (m) If granted for a longer period, it would be 
 thrown upon the parties to show the reasonableness of the prolonged 
 term from the particular circumstances of the case. 
 
 What has been said as to the proper duration of leases is of course 
 -,-, only applicable where the founder has not ^otherwise given 
 L J directions, for in all cases the will of the settlor, where explicit, 
 must be strictly followed ; as if the terms of the endowment be that the 
 charity estates shall be let only for twenty-one years, the trustees, though 
 satisfied that leases of ninety-nine years would be more beneficial, could 
 not make such a deviation from the directions of the trust without the 
 sanction of the court. It was said on one occasion, with reference to 
 such variations from the founder's intention, that the court itself could 
 not give a good title to the lessee, but that it required the authority of 
 an Act of Parliament. («.) It is plain, however, that there is a wide 
 distinction between a deviation from the founder's intention as to the 
 ohjecU of the charity, and a deviation from the directions as to manage- 
 ment, which were no doubt originally meant to be governed by circum- 
 stances. 
 
 When there has been no actual fraud, and the lessee or assignee of 
 the lease has laid out money in the permanent improvement of the pro- 
 perty, the court will direct an inquiry to what extent the charity estate 
 has been benefited, and will allow the holder of the lease the amount of 
 the benefit found. (o) 
 
 Xow, by the Charitable Trusts Amendment Act, 1855,(jj) s. 29, trus- 
 tees of charities are disabled from granting any leases (except for a term 
 not exceeding twenty-one years,) without the sanction of the Charity 
 Commissioners. 
 
 [*512] ^CHAPTER XIX. 
 
 THE POWERS or TRUSTEES. 
 
 The powers of trustees are either general or special; the former, such 
 as by construction of law are incident to the oflBce of trustee ; the latter, 
 such as are communicated by the settlor himself by an express proviso 
 in the instrument creating the trust. 
 
 [I) Attorney-General v. Crook, 1 Keen, 121, see 126. 
 
 (m) See Attorney-General v. Owen, 10 Ves. 560; Attorney-General v. Back- 
 house, 17 Ves. 291; Attorney-General v. Foord, 6 Beav. 290. 
 
 {n) Attorney-General v. Mayor of Rochester, 2 Sim. 34. 
 
 (o) Attorney-General v. Day, V. C. K. Bruce, March 9, 1847; and see Attorney- 
 General v. Green, 6 Ves. 452; Attorney-General v. Kerr, 2 Beav. 420; Swan v. 
 Swan, 8 Price, 518; Attorney-General v. Baliol College, 9 Mod. 411; Savage v. 
 Taylor, Forr. 234 ; Shine v. Gough, 1 B. & B. 444. 
 
 (//) 18 & 19 Vic. c. 124.
 
 THE POWERS OF TRUSTEES. 431 
 
 SECTION I. 
 
 OP THE GENERAL POWERS OF TRUSTEES. 
 
 In a court of law the trustee, as the absolute proprietor, may of course 
 exercise all such powers as the legal ownership confers ; but in equity 
 the cestui que trust is the absolute owner, and the question we have to 
 consider in this place is, how far the trustee may deal with the estate 
 without rendering himself responsible in the forian of a court of equity. 
 
 With reference to the simple trust, as the trustee is a mere passive 
 depositary, he can neither take any part of the profits, nor, except in 
 defence or protection of the estate, can exercise any dominion or control 
 over the corjnis. 
 
 In the special trust the authority of the trustee is equally limited, 
 except so far as the execution of the trust itself may invest him with a 
 proprietary power. The duties thus prescribed to him the trustee is 
 bound strictly to pursue without swerving to the right hand or to the 
 left ; as if money be given to be laid out in a purchase of lands, he 
 would not be justified in expending part on a purchase and applying the 
 residue upon repairs and improvements. ((/) 
 
 *But, under particular circumstances, the trustee is held capa- j-^_^^^ 
 ble of exercising the discretionary powers of the hona fide pro- L '^J 
 prietor; for the trust estate itself might otherwise be injuriously afi'ected. 
 The necessity of the moment may demand an immediate decision, while 
 the sanction of the parties who are beneficially interested cannot be pro- 
 cured without great inconvenience, as where the cestuis que trust arc a 
 numerous class, or perhaps cannot be obtained at all, as where the cestuis 
 que trust are under disability, or not yet in existence. The alternative 
 of instituting a suit for the mere purpose of consulting the court would 
 always be attended with considerable expense, and, it maybe, an expense 
 wholly disproportion ed to the importance of the occasion, and perhaps in 
 the mean time the opportunity might be lost. It is therefore evidently 
 in furtherance of the cestui's que trust own interest, that, where the cir- 
 cumstances of the case require it, the trustee should be at liberty to 
 exercise a reasonable discretionary power, (r) 
 
 It is a general rule of equity, that what is compellable by suit, or 
 would have been ordered by the court, is equally valid if done by the 
 trustee without suit, i. e., without the sanction of the court. (.s) The dif- 
 ficulty with which the trustee has to struggle is the danger of assuming 
 that the court, on application to it, would view the matter in the same 
 light in which he regards it himself. 
 
 A trustee, clothed with a trust to manage real estates for the benefit 
 of a person absolutely entitled, but incapable from infancy or otherwise 
 
 [q) Bostock V. Blakeney, 2 B. C. C. 653. 
 
 (r) See Angell v. Dawson, 3 Y. & C. 317. 
 
 (6) Lee V. Brown, 4 Ves. 3G9, per Car. ; Earl of Bath v. Bradford, 2 Vcs. 590, 
 per Lord Hardwicke : Cook v. Parsons, Pr. Ch. 185, per Cur. ; Inwood v. Twyne, 
 2 Ed. 153, per Lord Northington ; Ilutclieson v. Hammond, 3 Br. C. C. 145, per 
 BuUcr, J.; Terry v. Terry, Gilb. 11, per Lord Gowper; Shaw v. Borrer, 1 Keen, 
 576, per Lord Langdale.
 
 432 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 to give directions, may make repairs. But he must not go beyond the 
 necessity of the case, as by ornamental improvements, or the expense 
 will not be allowed. (^] Where the legal estate is vested in trustees in 
 trust for one person for life, with remainders over to others, it would 
 T*''^A.'\ ^^^® *been natural to suppose that the rights in equity as be- 
 L J tween the tenant for life and the remaindermen would be the 
 same as those at law between a legal tenant for life and legal remainder- 
 men. It is, however, now clearly settled, that whatever may be the 
 legal liability of a legal tenant for life in respect of permissive waste,(«) 
 the trustee cannot (where there is no special clause of management,) in- 
 terfere with the possession of an equitable tenant for life who neglects 
 to repair. (f] In other respects the rights in equity must, it is conceived, 
 be governed by those at law. Thus a legal tenant for life may cut tim- 
 ber for the purpose of repairs, (ii;) though he may not cut timber to sell 
 it and apply the produce,(x) nor to repay himself outlay in repairs ;(^) 
 and similarly the trustee may, it is conceived, as against the remainder- 
 man, cut timber for necessary repairs, if the tenant for life will consent 
 to an application of income towards repairs in making use of the timber. 
 The repairs by a tenant for life, however substantial and lasting, being 
 his own voluntary act, and not arising from any obligation, he cannot 
 claim any charge for them upon the inheritance,(2) nor will the court at 
 his instance direct lasting improvements to be made;(a) and though it 
 was said by the court in one case that the rule might not be absolutely 
 without exception, as if there were a settled estate, and a fund directed 
 to be laid out in a purchase to the same uses, it might be more beneficial 
 to the remainderman that part of the trust fund should be applied to 
 prevent buildings on the settled estates from going to destruction, than 
 that the whole should be laid out in the purchase of other lands,(6) an 
 extraordinary case would be requisite to create such exception. (c) 
 p^r-|r-i *Where an estate was devised to A. and his heirs upon trust 
 L J to settle on B. for life, subject to impeachment of waste, remain- 
 der to C. for life, sans impeachment of waste, remainder to C.'s first and 
 other sons in tail, and before any settlement was executed the trustee, 
 with the concurrence of B. and C., cut down timber which showed symp- 
 toms of decay. Sir L. Shadwell said " he considered the timber to have 
 been cut by the authority of the trustee who had a superintending control 
 over the estate ; that it was not a wrongful act ; and that the effect of it 
 must be the same as if it had been done with the sanction of the court. ((?) 
 
 (0 Bridge v. Brown, 2 Y. & C. Ch. Ca. 181. 
 
 (m) Powys V. Blagrave, 4 De Gex, M. & G. 458, and cases there cited by Lord 
 Granworth ; Harnett v. Maitland, 16 M. & W. 257. The legal question must be 
 considered still ^' sub Judice." See Re Skingley, 3 Mac. & Gor. 221 ; and Gregg v. 
 Coates, 2 Jur. N. S. 964 ; where the tenant for life was held liable under the parti- 
 cular words of the will in each case. 
 
 (v) Powys V. Blagrave, Kay, 495 ; 4 De Gex, M; & G. 448. 
 
 (w) Co. Lit. 54 b. (x) Co. Lit. 53 b. 
 
 {y) Gowerv. Eyre, Coop. 150; and see, Duke of Marlborough v. St. John, 5 De 
 Gex & Sra. 181. 
 
 (2) Hibbert V. Cooke, 1 S. & S. 552; Caldecott v. Brown, 2 Hare, 144 ; and see 
 Bostock V. Blakeney, 2 B. C. C. 653. (a) Nairn v. Marjoribanks, 3 Russ. 582. 
 
 (6) Caldecott v. Brown, 2 Hare, 145, per Sir J. Wigram. 
 
 (c) Dunne v. Dunne. 3 Sni. & Gif. 22 ; see p. 28. (d) W^aldo v.W^aldo. 7 Sim. 261.
 
 THE POWERS OF TRUSTEES. 433 
 
 So trustees of a charity would, until the late charity acts, have been 
 justified in aliening the estate where, under the same circumstances, the 
 court on application would, from the necessity of the case, have made an 
 order to that effect, (e^ 
 
 So conservators of public works and similar qiuisi trustees are autho- 
 rized to apply the funds under their control in opposing a bill in parlia- 
 ment, the eifect of which if passed would be injurious to the interests 
 confided to them. Thus by an act of parliament it was provided that 
 the banks of the Ouse, in Norfolk, should be maintained by commis- 
 sioners, with power to levy rates upon the adjacent landowners, which 
 were to be applied « in making, doing, constructing, and executing all such 
 works, acts, matters, and things as by such commissioners, should, from 
 time to time, be deemed necessary, proper, or expedient, for putting the 
 banks into, and maintaining the same in, a permanent state of stability." 
 The Norfolk Estuary Company applied for an act to reclaim from the sea 
 a tract of land near the mouth of the Ouse. The commissioners there- 
 upon held a meeting, and the majority passed a resolution that proceed- 
 ings should be taken for watching, and if necessary, for opposing the bill 
 in parliament, and that a rate of 6f7. an acre should be levied for defray- 
 ing the expenses, and 150/. in hand was paid to the chairman for the like 
 purpose. Three of the landowners, on behalf of themselves and the 
 others, filed a bill against the *commissioners, alleging a pretence r^c;[^c-| 
 by the defendants that the proposed scheme would be injurious L J 
 to the banks of the Ouse, but charging that, whether injurious or not, 
 the funds ought not to be applied in pursuance of the resolution, and 
 praying that the 150?. might be repaid, and an injunction against the 
 application of any future funds in pursuance of the resolution. The 
 defendants demurred, and Lord Cottenham, after referring to the plead- 
 ings, said, " I must assume that the works are likely to be injurious. 
 Now it is clear that if actual injury was done, and proper measures had 
 been taken by the commissioners to prevent it, they would be entitled to 
 be allowed their expenses so incurred, for every trustee is entitled to be 
 allowed the reasonable and proper expenses incurred in protecting the 
 property committed to his care. But if they have a right to protect the 
 property from immediate and direct injury, they must have the same 
 right where the injury threatened is indirect, but probable;" and the 
 demurrer was allowed. (/) 
 
 On the other hand, quasi trustees, such as those before referred to, arc 
 not entitled to apply the funds of an existing undertaking in or towards 
 the expense of obtaining other or larger parliamentary powers.(</) 
 
 A trustee would, it is conceived, under special circumstances, and in 
 
 (e) Attorney-General v. South Sea Company, 4 Beav. 458, per Lord Langdale ; 
 Bee ante. 
 
 (/) Bright V. North, 2 Phill. 216; and see The Queen v. Norfolk Commissioners 
 of Sewers, 15 Q. B. R. 549. 
 
 (g) Attorney-General v. Andrews, 1 Mac. & Gor. 225; Attorney-General v. 
 Guardians of Poor of Southampton, 17 Sim. 6 ; Attorney-General v. Corporation 
 of Norwich, 16 Sim. 225 ; Stevens v. South Devon Railway Company, 13 Beav. 48 ; 
 Vance v. East Lancashire Railway Company, 3 K. & J. 50.
 
 434 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 due course of management, be justified in insuring the property ;(A) but 
 where there is a tenant for life, he could not be advised to do so out of 
 the income without the tenant for life's consent. And a mortgagee is 
 not regarded as a trustee ; and if, in the absence of any stipulation on the 
 subject, he effects an insurance, it is on his own account, and he cannot 
 claim to be entitled to the premiums under just allowances. It is the 
 same as if the lessor or lessee insured, in which case the other would 
 have no claim to the benefit of the policy. (*) 
 
 *An executor may appropriate a legacy without the necessity 
 L "^ ' J of a suit, where the appropriation is such as the court itself would 
 have directed. (/ij) 
 
 A trustee may expend sums of money for the protection and safety, or 
 for the maintenance and support, of a cestui que trust who is incapable of 
 taking care of himself, but the safer course is to apply to the court. (?) 
 
 If a legacy be left to an infant, and the court, upon application, would, 
 from the inability of the parent to support his child, order maintenance 
 out of the interest, the trustee, should he make advances for that purpose 
 without suit, would be allowed them in his account, (m) In the case of 
 Andrews v. Partington,(?j) Lord Thurlow refused to indemnify the 
 trustee : but the authority of that decision has been repeatedly denied, 
 and may be considered as overruled. (o) And the maintenance of each 
 year need not be confined to the interest of that year, but the trustee will 
 be allowed in his accounts to set off the gross amount of the maintenance 
 against the gross amount of the interest.(p) 
 
 Where the amount of the legacy is inconsidererable, as 100?., the court 
 would, in the absence of other means, direct maintenance to the child 
 out of the principal itself '.{q) the executor, therefore, who, under similar 
 circumstances, but without the authority of the court, breaks in upon the 
 capital, would not be liable, on the cestui' s que trust coming of age, to 
 account for the expenditure. (/•) However, where the legacy was not 
 P^p.-.„-. more than 300?., Sir W. Grant determined that the trustee had 
 L -I ^exceeded his duty, and said his impression was, that the rule 
 had been never to permit trustees of their own authority to break in upon 
 the capital ;(s) but the case of Barlow v. Grant, which is clearly to the 
 
 (h) Ex parte Andrews, 2 Uose, 412. 
 
 {i) Dobson v. Land, 8 Hare, 216 ; and see Ex parte Andrews, 2 Rose, 410 ; Phil- 
 lips V. Eastwood, LI. & Goold. t. Sugden, 289. 
 
 (k) Hutcheson y. Hammond, 3 B. C. C. 128, see 145, 148; and see Cooper v. 
 Douglas, 2B. C. C. 231. 
 
 (l) Buncombe v. Nelson, 9 Beav. 211; and see Chester v. Rolfe, 4 De Gex, M. 
 & G. 798, and cases there cited. 
 
 (w) Sisson V. Shaw, 9 Yes. 285. (n) 3 B. C. C. 60. 
 
 (o) See Sisson v. Shaw, 9 Ves. 288 ; Maberlj v. Turton, 14 Yes. 499 ; Lee v. 
 Brown, 4 Yes. 369; Ex parte Darlington, 1 B. & B. 241; and see Cotham v. West, 
 1 Beav. 381. 
 
 (p) Carmichael v. Wilson, 3 Moll. "79. 
 
 (q) Ex parte Green, 1 J. & W. 253 ; Ex parte Chambers, 1 R. & M. 577; Ex 
 parte Swift, ib. 575; In re Mary England, id. 499 ; Harvey v. Harvey, 2 P. W. 21 ; 
 Ex parte Hays, 3 De Gex & Sm. 485; Worthington v. M'Craw, 26 L. J., N. S. 
 (Ch.) 286. 
 
 (r) Barlow v. Grant, 1 Yarn. 255 : Carmichael v. Wilson, 3 MolL 79 ; Bridge v. 
 Brown, 2 Y. & C. Ch. Ca. 181. 
 
 (s) Walker v. Wetherell, 6 Yes. 473.
 
 THE POWERS OF TRUSTEES. 435 
 
 contrary, must have escaped his honor's recollection. In Swinnock v. 
 Crisp, (<) where the legacy was 250/'. to be divided amongst three children, 
 the executrix, who was the mother, was not allowed the sums which she 
 had paid out of the principal : but the ground of the decision was the 
 notion, since overruled, that the executrix, though she had married 
 again, was under a legal obligation, as mother, to provide a maintenance 
 for her children. (») Where the legacy is considerable, as 1000?. or the 
 like, as the court itself would not order the application of part of the 
 principal, the trustee would not be justified in exceeding of his own 
 authority the amount of the interest. (y) 
 
 A part of the capital may be sunk by a trustee without the direction 
 of the court for the advancement of a child, where the same sums if ex- 
 pended for maintenance would not have been allowed. (w) 
 
 In Smee v. Martin(x') a testator gave 100/ to A. B., '' not to be paid 
 until he came of age, and in the meantime 5/. per annum to be allowed 
 out of the testator's estate for his maintenance." The executrix, who 
 was his mother, had expended in binding him apprentice, fitting him out 
 for India, and other necessaries, more than 100?. and the court decreed 
 the payment of the legacy in full without any deduction for the disburse- 
 ments. <' The mother," it was said, <' ought by nature to provide for the 
 maintenance and education of her own son : besides, it appeared plainly 
 the intention of the testator that the 100?. should not be touched until 
 A. B. came of age, for there was a yearly allowance in the meantime of 
 5?., and it was at her peril that she exceeded that." The case therefore 
 does not militate against the general rule, but was determined r*cin-| 
 upon *the particular circumstances, that the executrix, as mother, L J 
 was herself liable for the maintenance of the child, (a position not tenable 
 at the present day,) and that the expenditure of part of the capital was 
 against the clear intention of the testator. 
 
 But a trustee cannot apply part of the principal towards the advance- 
 ment of the child where the legacy is subject to a limitation over in 
 favour of a stranger, for in such a case the court itself could not make 
 an order to that effect. 
 
 Thus in Lee v. Brown, (^) where a testatrix gave 100?. to trustees 
 upon trust to apply the produce to the maintenance and education of 
 A. B., and when he should attain twenty-one to transfer to him the 
 capital, but in case he died under that age the testatrix gave the legacy 
 to his brother and sister equally. Lord Alvanley said, '< It certainly was 
 not competent under this trust to the executor, nor could he, if he had 
 applied, have obtained permission from this court, to advance any part 
 of the capital of the legacy in putting the child out in the world ; for 
 if it had been such a case that the court looidd have authorized the act 
 that was done, I desire to he understood that it would he considered as 
 properly done; for the principle is noio estahlished, that if an executor 
 
 (t) Freem. 18. («) Billingsly v. Critchet, 1 B. C. C. 268. 
 
 (v) Barlow v. Grant, 1 Vern. 255, per Lord Guildford; Davies v. Austen, 1 Ves. 
 jun. 247; S. C. 3 B. C. C. 178. 
 
 (iv) Swinnock v. Crisp, Freem. 78 ; and see Ex parte M'Key, 1 B. & B. 405. 
 
 (x) Bumb. 136. 
 
 (V) 4 Ves. 362; Worthington v. M'Craw, supra, p. 517.
 
 436 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 does without application what the court would have approved, he shall 
 not be called to account, and forced to undo that merely because it was 
 done %oithout appilication." {zj 
 
 But wliere legacies were given to children payable at twenty-one or 
 marriage, with a limitation over on the death of any child before attain- 
 ing twenty-one or marriage, not in favour of a stranger, but for the 
 benefit of such of the children as should attain twenty-one or marry, a 
 trustee, who had paid a premium on the apprenticeship of a child, who 
 died under twenty-one, was allowed it by the court. (a) The case turned 
 upon the same principle as where a legacy is given to a class, all or some 
 of whom must take the fund absolutely, when, as all have an equal 
 chance of survivorship, the individuals of the class will *be 
 L -^ ordered maintenance even before their shares in the fund have 
 become actually vested. (6) 
 
 An executor has never been held responsible for paying a debt due 
 and owing from the testator's estate, but the remedy for which had been 
 barred by the Statutes of Limitation. (c) 
 
 A trustee, under circumstances, may release or compound a debt. 
 Thus, where the tenant of part of the trust estate owed 225^. for arrears 
 of rent, and afterwards became insolvent, and the trustee released the 
 debt and gave a bonus of 20?. on condition that the tenant should give 
 up the premises, which was done, it was argued that the trustee, before 
 he made the release, should have consulted the cestuis que trust in esse 
 for their consent ; and, in case of their obstinacy, should have applied 
 to the court for directions ; and though it might be true that the tenant 
 was at the time insolvent, yet thereafter he might have become solvent 
 and able to pay the rent; and as to the gaining of possession, that was of 
 no great value, as there was a proviso in the lease for the landlord's re- 
 entry in case of non-payment of the rent; but Lord Chancellor Talbot 
 said, '' The tenant becoming insolvent, the testator's estate has not suf- 
 fered by this release, in regard if the arrears of rent had not been released, 
 the trustees could never have gotten them when the tenant was unable 
 to pay them; and if the testator's estate has not suflfered on account of 
 the release, there is no reason it should gain thereby. The trustee seems 
 to have done nothing but what was prudent. A vexatious tenant may 
 put the landlord to great trouble and delay by a wrongful detainer of the 
 possession, and by damaging the estate in the mean time, and may force 
 the landlord to ejectment, writs of error, and bills in equity, by means of 
 which he may lose not only his accruing rent, but his costs of suit. 
 Neither will I make any difference between the 201. and the release of 
 the arrears, for both were but one entire consideration for the tenant's 
 quitting the possession ; and by the same reason that the trustee has 
 
 (z) 4 Ves. 369. 
 
 (a) Franklin v. Green, 2 Vern. 137. That the limitation over was for the benefit 
 of the children is not mentioned in the report, but appears from Reg. Lib. 
 
 (b) See Rop. Leg. ch. xx. s. 5 ; Greenwell v. Greenwell, 5 Vesey, 194 ; Caven- 
 dish V. Mercer, cited ib. ; Brandon v. Aston, 2 Y. & C. Ch. Ca. 30. 
 
 (c) Stahlschmidt V. Lett, 1 Sm. & Gif. 415.
 
 THE POWERS OP TRUSTEES. 437 
 
 been allowed the one, lie ouglit to be allowed the *otlier.(^) But r;,:- 9-1-1 
 if a trustee release or compound a debt without some sufficient L "^ J 
 ground in justification of his conduct, he will clearly be answerable to 
 the cestui que trust for the amount of the devastavit. (e^ 
 
 The same principles may be applied to cases of constant occurrence in 
 practice. Thus trustees of an equity of redemption of lands mortgaged 
 for more than their value, may release the equity of redemption to the 
 mortgagee, rather than be made defendants to a foreclosure suit, the 
 costs of which, so far as incurred by themselves, will fall upon the trust 
 estate. 
 
 Where trustees are mortgagees they are often requested to release part 
 of the land from the security, in order to enable the mortgagor to deal 
 with it for his own convenience. Where the value of the land is not 
 excessive as compared with the debt, it would, of course, be a gross 
 breach of trust to deteriorate the security. But suppose the value of the 
 part to be left in mortgage to be at least double the amount of the debt, 
 may the trustees release the residue ? It is presumed that trustees can 
 never justify the abandonment of any part of the security on the mere 
 ground of consulting the convenience of the mortgagor. They must be 
 prepared to show that the act was calculated under the circumstances to 
 promote the interests of the cestuis que trust. If, for example, the mort- 
 gagor be ready to pay off the mortgage on a transfer of the security, 
 unless the trustees will consent to release, and the existing mortgage, 
 Oiren when confined to the narrower parcels, is a highly beneficial one 
 and the value still abundantly ample, it is conceived the trustees would 
 not incur responsibility in acceding to the arrangement. 
 
 A trustee may reimburse himself a sum of money hona fide advanced 
 by him for the benefit of the cestui que trust, or even for his own protec- 
 tion in the execution of his office. 
 
 Thus, a trustee of 1000/. South Sea stock had mortgaged it to the 
 South Sea Company, at the request of the cestui que trust for 4000/. ; 
 some time after, the South Sea bubble burst and the 1000/. stock fell to 
 a mere nominal value. An act *having been passed by which it j.^..^.-,-. 
 was provided that if any mortgagor to the company should pay L "^''J 
 10/. per cent, by such a day the debt should be extinguished, the trustee 
 took upon himself to pay the 10/. per cent., the cestui que trust, who 
 laboured under the impression that a mortgagor was at liberty by forfeit- 
 ing his pledge to be quit of the debt, refusing to give his consent. The 
 trustee filed a bill against the cestui que trust to recover the money which 
 had been disbursed; and Lord Chancellor King, in deciding for tlie 
 plaintiff, observed, " When money is borrowed, it ought to be repaid, 
 and though a pledge was given for it, if that proves insufficient, the bor- 
 rower ought to be liable. But if in the present case there was only a 
 hazard, the trustee ought not to continue liable to such hazard : on the 
 contrary, as it is a rule that the cestui que trust ought to save the trustee 
 
 (d) Blue V. Marshall, 3 P. W. 381 ; and see RatclifiFe v. Winch, 17 Beav. 216; 
 Forshaw v. Iligginson, 3 Jur. N. S. 4V6. 
 
 (c) Jevon V. Bush, 1 Vern, 342; Gorge v. Chausej, 1 Ch. Re. 125; Wiles v. 
 Gresham, 5 De Gex, M. & G. 770.
 
 438 LEWIN ON THE LAW OF TKUSTS, ETC. 
 
 harmless, so, within the reason of that rule, when the trustee has honestly 
 and fairly, without any possibility of being a gainer, laid down money 
 by which the cestui que trust is discharged from being liable for the 
 whole money lent, or from a plain and great hazard of being so, he ought 
 to be repaid."(/) 
 
 A trustee for payment of debts and legacies, and subject thereto upon 
 trust for A. for life with remainders over, has no power, after the 
 accounts have been taken by the court and A. declared entitled to the 
 possession, to make an admission binding upon A. of any further debt, 
 and to resume the possession for the purpose of discharging \i.[g) 
 
 It has been held that a trustee of lands may grant a reasonable lease. 
 Thus, a testator had devised an estate to two trustees in fee upon trust 
 out of the yearly rents and profits to pay two annuities of 60/. and lUZ. 
 respectively, and subject thereto upon trust for certain persons succes- 
 sively for life, with remainder to their issue. The trustees granted a 
 lease of the lands for the term of ten years, and Sir John Leach held 
 r*f^9^T ^^^^ ^^®y ^^^^ °^* exceeded their authority. (/i) But it *must 
 L " -I not be inferred from this case that a trustee is at liberty, except 
 under peculiar circumstances, to grant other than a husbandry lease, 
 which never exceeds twenty-one years ;((') and of course he cannot make 
 even that demise where it is a simple trust, and the cestui que trust is in 
 possession, except he do it with the cestui s que trust concurrence. And 
 prima facie a trustee for sale would not be justified in granting a 
 lease. (A;) 
 
 A trustee has no power mero motu, in the absence of express autho- 
 rity, to vary the securities upon which the trust-fund stands invested, 
 assuming them to be proper. (/) Indeed, where he makes the investment 
 in the first instance himself, he ought, in all cases where the settlor has 
 not warranted a different course, to invest in the 3^>er cent, consols ; and 
 then, as that fund is considered by the court the most beneficial to the 
 trust, he would hardly be justified in making a change not tending to 
 ameliorate the estate. Should the trust authorize an investment upon 
 real or government securities without any power of variation, and the 
 trustee lend upon mortgage, of course he cannot prevent the mortgagor 
 from paying oil the money, and therefore he may sign a discharge for it, 
 and may then invest it upon another mortgage, or in the funds. (m) 
 Where, however, the trustee was directed to invest upon security, but 
 real security was not mentioned, and he lent upon a mortgage, the court 
 did not think it so clear that the trustee could sign a receipt when the 
 money was paid ofFas to compel a purchaser to take a title which depended 
 on that question. (h) The power of signing a receipt in such cases de- 
 
 (/) Balsh V. Plyham, 2 P. W. 453. {g) Underwood v. Hatton, 5 Beav. 36. 
 
 (A) Naylor v. Arnit, 1 R. & M. 501 ; and see Bowes v. East Lond. Waterworks' 
 Com., Jac. 324 ; Drohan v. Drohan, 1 B. & B. 185 ; Middleton v. Dodswell, 13 Ves. 
 268. ' 
 
 (?) See Attorney-General v. Owen, 10 Ves. 560. 
 
 {k) Evans v. Jackson, 8 Sim. 217. (Z) See Angell v. Dawson, 3 Y. & C. 316. 
 
 (m) Wood V. Harman, 5 Mad. 368; Locke v. Lomas, 5 De G. & Sm. 326. 
 
 (n) Hanson v. Beverley, Vend. & P. 848, 11th ed.
 
 THE POWERS OF TRUSTEES. 439 
 
 pends on the intention as collected from the instrument, and unless it 
 contain authority to lend on a mortgage no power of signing a receipt 
 when it is paid off is implied. 
 
 The powers assigned in the proceeding pages to trustees must be taken 
 subject to the qualification, that if a suit has been instituted for the exe- 
 cution of the trust, (nid a decree *made, the powers of the trus- -^^.^ ... 
 tees are thenceforth so far paralyzed that the authority of the L ~ J 
 court must sanction every subsequent proceeding, (c) 
 
 Thus the trustees cannot commence or defend any action or suit or inter- 
 fere in any other legal proceeding without first consulting the court as to 
 the propriety of so doing. (p) A trustee for sale cannot sell. (5') The 
 committee of a lunatic cannot make repairs. (/•) An executor cannot pay 
 debts, (s) nor deal with the assets for the purpose of investment.(/) 
 
 A suit in which a bill merely has been filed is to be distinguished from 
 one in which a decree has been made, for until a decree the plaintiff may 
 dismiss his bill at any moment and should he do so, the progress of the 
 trust may have been arrested for no purpose. (m) However, even in this 
 case the trustees cannot be advised to act without first consulting the 
 court, and if by acting independently of the court expenses be incurred 
 which might have been avoided had the trustees applied to the court 
 they may be made to bear them personally. Tv) 
 
 SECTION n. 
 
 THE SPECIAL POWERS OF TRUSTEES. 
 
 Upon this branch of our subject we shall consider, First, The different 
 kinds of powers ; Secondly, The construction of powers ; Thirdly, The 
 effect of disclaimer, assignment of the estate, and survivorship among the 
 trustees j and Fourthly, The control of the court over the exercise of 
 powers. 
 
 I. Of the different kinds of powers. 
 
 In applying the doctrine of powers to the subject of trusts *it r^r.9P.-\ 
 may be useful to regard powers as either legal or eqxdtable : the L " J 
 former such as operate upon the legal estate, and so are matter of cogni- 
 zance to courts of common law ; the latter, such as affect the equitable 
 interest only, and so fall exclusively under the notice of courts of equity. 
 Thus, if lands be limited to the use of A. for life, remainder to B. and 
 his heirs, and a power operating under the statute of uses be given to C, 
 the execution of the power works a conveyance of the legal estate : but 
 if lands be limited to the use of A. and his heirs upon trust for B. for 
 
 (0) Mitchelson t. Piper, 8 Sim. 64 ; Shewen v. Yanderhorst, 2 R. & M. 75 ; S. 
 C. ailirmed, 1 R. & M. 347. 
 
 {p) See Jones v. Powell, 4 Bear. 96. 
 
 \q) Walker v. Smalwood, Amb. 67G ; Annesley v. Asburst, 3 P. W. 282. 
 
 (r) Anon, case, 10 Ves. 104. 
 
 (s) Mitcbelson v. Piper, 8 Sim. 64; and see Jackson v. Woollej-, 12 Sim. 13. 
 
 {t) Widdowson v. Duck, 3 Mer. 494. 
 
 (m) Cafe V. Bent, 3 flare, 249 ; Neeves v. Burrage, 14 Q. B. R. 504. 
 
 {v) Attorney-General v. Clack, 1 Beav. 467 ; and see Cafe v. Bent, 3 Hare, 249.
 
 440 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 life, remainder upon trust for C. and his heirs, and a power not operating 
 under the statute of uses be given either to the trustee or to the cestui 
 que trust, the execution of such a power will have no effect at law, but 
 will merely serve to transfer the beneficial interest in equity, and may 
 therefore be designated by the name of an equitable power. 
 
 An equitable, the same as a legal power, may be either annexed to the 
 estate or be simply collateral; but whether it shall be taken as the one 
 or the other will depend on the question, whether the donee of the power 
 be possessed of the equitable, that is, of the heneficial interest, or not. 
 Thus, where a testator devised to his sister and her heirs for ever, with 
 a direction to settle the property on such of the descendants of the testa- 
 tor's mother as his sister should think fit, and, the devisee having married, 
 the question was raised whether the execution of the power by her, as 
 she was under coverture at the time, was to be considered as valid. Lord 
 Hardwicke said, "It is objected that z. feme covert cannot execute a 
 power, and that there are no words in the will authorising her to do so ; 
 but this is a power loithout an interest, and is improperly called a power, 
 for, being a direction to a person who has the fee, it is rather a trust. "(?t') 
 On the other hand, where the legal estate was devised to trustees upon 
 trust for an infant feme covert for her sole and separate use during her 
 life, and upon trust to permit her by deed or writing executed in the pre- 
 sence of three or more witnesses, notwithstanding her coverture, to dis- 
 pose of the estate as she should think fit, and the testator died leaving 
 P^rpo-. the /erne covert his heir at law, and *she during the continuance 
 L "^ -I of the coverture and infancy, exercised the power by will. Lord 
 Hardwicke, upon the question whether the power had been duly executed, 
 observed, " This is a power coupled witli an interest, which is always 
 considered different from naked powers. It was admitted that if this 
 execution was to operate on the estate of the infant, it might not be 
 good : now this is clearly so, for she had the trust in equity for life, 
 with the trust of the inheritance in her in the mean time, which would 
 remain in herself, if undisposed of, and descend to her heir; so that this 
 is directly a power over her own inheritance, which cannot be executed 
 by an infant."(u:^) 
 
 Again, powers, in the sense in which the term is commonly used, may 
 be distributed into mere powers, and powers coupled with a trust.(y\ The 
 former are powers in the proper sense of the word ; that is, not impera- 
 tive, but purely discretionary ; powers which neither the trustee can be 
 compelled to execute, nor, on failure of the trustee, can be executed vica- 
 riously by the court. The latter, on the other hand, are not arbitrari/, 
 but imp)erative, have all the nature and substance of a trust, and ought 
 rather, as Lord Hardwicke observed, to be designated by the name of 
 trusts. (2) '< It is perfectly clear," said Lord Eldon, " that where there is 
 
 (w) Godolphin v. Godolphin, 1 Ves. 21. 
 
 {x) Hearle v. Greenbank, 1 Ves. 298, see 306 ; and see Blithe's case, Freem. 91; 
 Penne v. Peacock, For. 43. 
 
 (y) See Gower v. Mainwaring, 2 Ves. 89; Cole v. Wade, IG Ves. 43; Hutchin- 
 son V. Hutchinson, 13 Ir. Eq. Rep. 332. 
 
 (z) Godolphin v. Godolphin, 1 Ves. 23.
 
 THE POWERS OF TRUSTEES, 441 
 
 a mere power, and that power is not executed, the court cannot execute 
 it. It is equally clear, that wherever a trust is created, and the execu- 
 tion of the trust fails by the death of the trustee or by accident, this 
 court will execute the trust. But there are not only a mere trust and a 
 mere power, but there is also known to this court a power tchich the 
 part;!/ to lohom it ix (/iven is entrusted and required to executed; and, 
 with regard to that species of power, the court considers it as partaking 
 so much of the nature and qualities of a trust, that if the person who 
 has the duty imposed upon him does not discharge it, the court will, to 
 a certain extent, discharge the duty in his room and place. (a) 
 
 Again, powers have been dealt with by the court as either of r*r97-i 
 a strict or of a directory character : the former such as can only L ^ J 
 arise under the exact circumstances prescribed by the settlement ; the 
 latter, such as being merely monitory, may be taken with a degree of 
 latitude. Thus, where an advowson was vested in trustees upon trust to 
 elect and present a fit person loithin six months from the incumbent's 
 decease, it was considered the clause was directory, and that the trustees 
 might equally elect and present, although that period had elapsed. (Z/) 
 So where six trustees were empowered u-'hen reduced to three to substi- 
 tute others, and all died but one, it was held competent to the sole sur- 
 vivor to fill up the number. (c) And where, in the case of twenty-five 
 trustees, the direction was, that when reduced to fifteen the survivors 
 should nominate, it was determined by the court that, although seven- 
 teen remained, the survivors were at liberty to exercise their power, but 
 that, when reduced to only fifteen, they were compcllahle to do so.(fZ) 
 
 These were cases of charitable trusts, in which it seems a greater lati- 
 tude of construction is allowed. But in another case, where the trusts 
 were not charitable, estates were devised to trustees upon trust to sell 
 " with all convenient speed, and -^'ithm five years," and it was held that 
 these words were directory only, and that the trustees could sell and 
 make a good title, although the five years had expired. (e) 
 
 II. We proceed to consider the construction of powers. As the 
 powers of trustees are regulated by the doctrines applicable to powers 
 in general, we shall advert only to a few cases of most frequent occur- 
 rence. 
 
 If a power be given to "A. and B. and their heirs," it is perfectly 
 clear that the words are not to be understood to this extent, that, as the 
 limitation of an estate in such terms would so vest it in the grantees 
 that they might convey it to a stranger, and the survivor devise it, the 
 power is to be *construed as intended in like manner to be r*59g-| 
 assignable and devisable. (/) ^ 
 
 Upon the subject of such a power we have the following pointed 
 
 (a) Brown v. Higgs, 8 Ves. 570. 
 
 (b) Attorney-General v. Scott, 1 Ves. 413, see 415. 
 
 (c) Attornej'-Gencral v. Flover, 2 Vern. 748 ; and see Attorney-General v. Bishop 
 of Lichfield, 5 Ves. 825 ; Attorney-General v. Cuming, 2 Y. & C. Cli. Cn. 13» ; but 
 see Foley v. Wontner, 2 Jac. & Walk. 245. 
 
 {d) Doe V. Roe, 1 Anst. 86. 
 
 (e) Pearce v. Gardner, 10 Hare, 287; and see Cuff v. Hall, 1 Jur. N. S. 973. 
 
 (/) Cole V. Wade, 16 Ves. 46, per Sir W. Grant.
 
 442 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 remarks of Lord Chief Justice Wilmot : " It is asked/' he said, " what 
 must become of the power upon the death of one of the trustees. It must 
 be considered as a tenancy in common. Had the words been < their 
 several and respective heirs/ it would have been clear ; and in common 
 parlance, and according to the common apprehension of mankind, when 
 an estate is given to two men and their heirs, no one not illumined with 
 the legal nature of joint-tenancy could ever conceive the estate was to go 
 to the heirs of the survivor. It is equivalent to saying, With consent of 
 Loth loliile they live ; hut ivhen one dies, that consent shall devolve upon 
 his heir; the heir of the dead trustee shall consent as toell as the surviving 
 trustee. One may abuse the power ; I will supply the loss of one by his 
 heir, and the loss of both by the heirs of both. {(j^ 
 
 In Townsend v. Wilson(^j a power of sale was given to three trustees 
 and their heirs ; and it was directed that the money to arise from the 
 sale should be paid into the hands of the trustees, or the survivors or 
 survivor of them, and the executors, administrator, or assigns of such 
 survivor, and there was a power of appointment of new trustees, with a 
 direction such appointment should take place as often as any one or more 
 of the trustees should die, &c. One of the trustees died, and it was 
 determined by the Court of Queen's Bench, that the survivors alone were 
 incapable of exercising the power. 
 
 Lord Eldon expressed himself dissatisfied with this decision, and 
 asked, " Did the Court of Queen's Bench consider that the two surviving 
 trustees and the heir of the deceased trustee were to act together ? for it 
 was one thing to say that the survivors could not act until another ivas 
 appointed ; and a diiferent thing to say, the heir of the deceased trustee 
 ^ ^ ^ could act in the meantime. "(/) No reasons were given by the 
 L " J *court for their judgment, and it is difficult to collect on what 
 grounds it proceeded. (7^-) 
 
 In Hewett v. Hewett,(Z) a testator devised his estate to four persons to 
 uses in strict settlement, with a power to the tenants for life, when in 
 actual possession, to cut such trees as the four devisees to uses, or the 
 survivors or survivor of them (omitting the words " and the heirs of the 
 survivor") should direct 5 and all the trustees being dead, the question was 
 whether the power was gone. Lord Henley held, that upon the construc- 
 tion of the will, the testator intended the power to be co-extensive with 
 the life estates, and that the trustees were interposed, as supervisors only, 
 to prevent destruction ; and that the ofiice of the trustees was not personal, 
 but such as might be executed by the court. He, therefore, considered 
 the power as subsisting, and referred it to the master to inquire what 
 timber was fit to be cut. In this view of the case the court did not 
 regard the authority to the trustees as a mere power, but as a trust. 
 
 It still remains to be decided how powers, in the strict sense, limited 
 " to trustees and their heirs" are to be construed. 
 
 Though where a discretionary ler/cd power is expressly limited to " A. 
 
 {g) Mansell v. Vtvughan, Wilm. 50, 51. 
 
 {h) 1 B. & Aid. 608, 3 Mad. 261 ; and see Cooke v. Crawford, 13 Sim. 91. 
 
 (j) Hall V. Dewes, Jac. 193 ; and see Jones v. Price, 11 Sim. 557. 
 
 \lc) Sugd. Pow. 490, 6th ed. {I) 2 Edeu, 332, Amb. 508.
 
 THE POWERS or TRUSTEES. 443 
 
 and his assigns," the grantee or devisee of A., and even a claimant 
 under him by operation of law as an heir or executor, may exercise the 
 power ;(m) yet in a trust, if an estate be vested in a trustee upon trust 
 that he, his heirs, executors, administrators or assigns shall sell, etc., the 
 introduction of the word assigns will not authorise the trustee to assign 
 the estate to a stranger,(?i) nor will the stranger be capable of exercising 
 the power. (o) 
 
 But in a mortgage, with a power of sale limited to the mortgagee, his 
 heirs, executors, administrators and assigns, the intention is that the 
 power should go along with and be annexed to the security : and, there- 
 fore, if the mortgage be assigned to a stranger, and the legal estate be 
 ' conveyed to the stranger or to a trustee for him, the stranger alone or 
 with the ^concurrence of the trustee, can give a good legal and r*53Q-| 
 equitable title -,{00) and even if a mortgage be made to A. and B. L -• 
 to secure a joint advance, and the power of sale and signing receipts be 
 limited to A. and B., their heirs and assigns, it has been held that as 
 the power and the security were plainly meant to be coupled together, 
 and the security enures to the benefit of the survivor, (the advance 
 being a joint one,) the survivor may also sell.(25) 
 
 If a, power indicating personal confidence be given to a " trustee and 
 his executors," and the executor of the trustee die having appointed an 
 executor, the latter executor, though by law the executor not only of his 
 immediate testator but also of the trustee, will not, it has been thought. 
 be so considered for the purposes of the power.(2) A matter of personal 
 confidence is not extended beyond the express words and clear intention 
 of the settlor; and in this case, the settlor may have meant the power to 
 be exercised exclusively by the executors, whom the trustee should him- 
 self name, and not by a person who is executor of the trustee by opera- 
 tion of law only. 
 
 A power limited to " executors" or " sons in law" may be exercised 
 by the survivors so long as the plural number remains ;(?•) and if a 
 power be limited to "trustees" we may reasonably conclude it may be 
 exercised by the surviving trustees. And a power given to " executors" 
 will, if annexed to the executorship, be continued to the single sur- 
 vivor ;(s) and so a power given to "trustees" will, as annexed to the 
 office, be exercisable by the survivor.(/) But, of course, not by one of 
 the trustees in the lifetime of the other who has not efi'ectually dis- 
 
 (m) How V. Whitfield, 1 Vent. 338, 339 ; 1 Freem. 4T6. 
 
 (ft) The case of Hardwick v. Mynd, 1 Aust. 109, cannot in this respect be sup- 
 ported. 
 
 (0) See pp. 266, 267, supra. {00) Saloway v. Strawbridgc, 1 Kay & Johns. 371. 
 (p) Hind V. Poole, 1 Kay & Johns. 383. 
 
 (q) See Cole v. Wade, IG Ves. 44; Stile v. Tomson, Dyer, 210 a; Perk. sect. 
 552 ; and see 1 Sug Pow. 145, 6th Ed. 
 
 (r) 1 Sug. Powers, 144, 6th Ed. 
 
 (s) 1 Sug. Powers, 144, 6th Ed. Eouell v. Barnes, Cro. Car. 382 ; Brassey T. 
 Chalmers, 4 De Gex, M. & G. 528, reversing the decision of the master of the rolls, 
 16 Beav. 231. 
 
 [1) Lane v. Debcnham, 17 Jur. 1005.
 
 444 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 claimed. (tt) And if a power be communicated to " the trustees for the 
 time being" of a will, it cannot be exercised by a single trustee. (z;) 
 
 *A power to four trustees "and the survivors of them," can- 
 L ' J not, it seems, be executed by the last survivor ;(i/;) for though a 
 power to trustees may, in general, be held to survive, an intention to the 
 contrary may here be fairly inferred : the settlor may be supposed to have 
 said, " I repose a confidence in any two of the trustees jointly, but in 
 neither of them individually." But if a power be limited to four trus- 
 tees ''and the aurvivor of them/' it maybe argued, that on the death of 
 one the power may still be exercised by the survivors ; for there can be 
 no valid reason why a person who trusted the four jointly, and each of 
 them individually, should refuse to repose a confidence in the survivors 
 for the time being. (x) However, it is a question of intention upon the 
 construction of the instrument, and a 'priori reasoning cannot be relied 
 upon without a decision. 
 
 In Trower v. Knightley(y) a testator devised an estate to trustees upon 
 trust as to one moiety for A. for life, remainder to her children at twenty- 
 one, and as to the other moiety for 13. for life, remainder to her children 
 at twenty-one, and gave the trustees a power of sale " during the con- 
 tinuance of the trust." A. died, and her children attained twenty-one, 
 and the question was, whether the trustees could, under the power, sell 
 the whole estate, the children of B. being infants. The vice-chancellor 
 held, that if the children of A. could call for a present conveyance of 
 their moiety it would have the effect of depriving B. and her children 
 of the benefit of the power of sale, and also of the leasing power given 
 to the trustees, for that an undivided moiety could not advaniageously be 
 sold or leased, and that the testator must have meant to continue the 
 powers of ownership to the trustees until there were owners competent 
 to deal with the whole estate. 
 
 But if a power be given to trustees to be exercised " during the con- 
 tinuance of the trust," it cannot be exercised after the time when the 
 j.^ron-1 trust oufjlit to have been completed, though, from *the delay of 
 L -I the trustees, it happens that the trust has not in fact been exe- 
 cuted. (;;) 
 
 III. Of the effect of disclaimers assignment, and survivorship of the 
 estate. 
 
 First. If a power be given to co-trustees, and one of them disclaim, 
 the power may be exercised by the continuing trustee or trustees. 
 
 Jenkins observes, « If a testator devise that A. and B. shall sell, and 
 near the end of the will he names them executors, if one refuses at 
 
 (m) Lancashire v. Lancashire, 2 I'liill. 6C4. 
 
 (v) Lancashire v. Lancashire, 2 PliilL 57G; 1 De 6. & Sm. 288. 
 
 [w) ITiVjbard v. Larnbe, Amb. 309. Note, further directions were declared 
 necessary on tlie death of cilhcr of the surviving executors. See Eaton v. Smith, 
 2 Beav. 23G. 
 
 {%) See Crewe v. Dickcn, 4 Ves. 97 ; in which case it seems to have been as- 
 sumed that the receipt of the survivors would have been a suflicient discharge. 
 
 M Mad. 134. 
 
 [z) Wood V. White, 2 Keen, 664. It was determined on appeal that the trusts 
 in this case were still in being, 4 M. & Cr. 460.
 
 THE POWERS OF TRUSTEES. 445 
 
 common law,(o) or dies, the other may sell, for the potrer is anncjr^d to 
 the ejcecutorship ;''{b) and in the instance of trustees, it may equally be 
 arffued that although given to persons by uavie, the power is anuesed to 
 the trusteeship. 
 
 And of this opinion apparently was Lord Loughborough in the case 
 of Crewe v. Pioken -Ac) for a power of signing receipt^: having been lim- 
 ited to three trustees by name, and one of them being dead, his lordship 
 remarked, <» If A. B. (one of the survivors.) had rtnounccd," (that is, 
 had disclaimed instead of constructively accepting the trust by the exe- 
 cution of a contci/anc(.\ "the whole estate would have been in the con- 
 tinuins trustee exactly as if the two other trustees had died in the life 
 of the testator;" and it is evident from the context that his lordship 
 meant to extend the observation to the power of signing receipts. 
 
 In Hawkins v. Kemp, ((f) a purchaser at first objected that the accept- 
 ing trustees could not exercise the power, or not without the appoint- 
 ment of a new trustee in the place of the trustee who had disclaimed, 
 but the point was afterwards abandoned by the purchaser's counsel as 
 untenable. 
 
 *And Adams v. Tauutou((') is a direct decision by Sir J. Leach r*:^.-..^-i 
 to the same effect. A testator had devised his estates to A. and L "^ ' "^ J 
 B. upon trust to sell and apply the proceeds amongst his children, and 
 declared that the receipts of the s;nd A. and B. should be sufficient dis- 
 charges. A. renounced, and Sir J. Leach, after having taken time to 
 consult the authorities, said. " It being now settled that a devise to A., 
 B., and C, upon trust, is a good devise to such of the three as accept 
 the trust, it follows by necessary construction that by the receipts of 
 the trustees is to bo intended the receipt of those who accept the 
 trust. '■(/■) 
 
 If the power be not given to the trustees by name, but to the - trus- 
 tees" or ''executors;" it is clear, a fortiori, that if one disclaim the 
 acting trustees or executors may exercise the power. (7) 
 
 Secondly. As to the eftect of assitjnment of the estate, it is certain 
 that the power is not appendant to the estate, so as to follow along with 
 it in every transfer by the party, or devolution by course of law. (A) But 
 
 (a) That is, independeutly of 21 H. S, c. 4, which, upon a refusal by one exe- 
 cutor, authorized a sale bv the co-executor. 
 
 (6)Jenk. 44. " (r) 4 Yes. 07. ,^,^ 
 
 (d) 3 East. 410. "I have always understood, said the late V. C. of England, 
 ever since the point was decided in Hawkins v. Kemp, or rather was, as the judges 
 said in that case, properly abandoned by the defendant's counsel as not capable 
 of beinir contended for. that where two or more persons are appointed trustees, 
 and all of them, except one, renounce, the trust may be executed by that one." 
 Cooke v. Crawford. 13 Sim. 90. 
 
 (c) 5 Mad. 435 ; and sec Bayly v. Cumming, 10 Ir. Eq. Re. 410 ; Cooke v. Craw- 
 ford, 13 Sim. 96; Sands v, Ncgce, append. No. viii. S. C. 8 Sim. 130. 
 
 (/) From his honour's words, •• the receipts of the trustees," it might be thought 
 the power had been given, not to A. and B. by name, but to " the trustees :" the 
 R. L. has been consulted, and it appears, as stated in the report, that the power 
 was given to "the said A. and B." 
 
 (g) Worthington v. Evans, 1 S. & S. 165;-Boyce v. Corbally, Rep. t. Plunket, 
 102; and see Clarke v. Parker. 19 Yes. 1. 
 
 (h) Cole V. \Yado. IG Yes. 47, per Sir W. Grant; Crewe v. Dicken, 4 Ves. 97; 
 March, 1858.-29
 
 446 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 where the estate is duly transferred to persons regularly appointed trus- 
 tees under a power in the settlement creating the trust, the transferrees, 
 of course, take the estate and the office together, and can exercise the 
 powers. Where the settlement contains no such power, it seems that 
 the appointment of new trustees by the court will not communicate spe- 
 cial discretionary or arbitrary powers,(r) unless they be limited to the 
 trustees for the time being,(A;) or be otherwise in fair construction an- 
 nexed to the office. (^?) 
 
 ^^ ^ *We have seen that if one trustee disclaim in the strict sense 
 L '-"^ J of the word, the power will not be extinguished, but will sur- 
 vive to the co-trustee ; but, according to the old doctrine, if a trustee, 
 instead of disclaiming had released the estate, that was a virtual accept- 
 ance of the trust, and then the conveyance of the retiring trustee did 
 not pass the power into the hands of the continuing trustee ;(m) but at 
 the present day it seems a release with the intention of disclaimer would 
 have all the operation of a formal and actual disclaimer. (71) 
 
 Though an assignment of the estate will not carry the power to the 
 assignee, it does not follow that the power will remain in the assignor; 
 for where it was the settlor's intention that the estate and power should 
 be coupled together, the trustee, by severing the union through the alien- 
 ation of the estate, ceases to be the person intended to execute the power. 
 Thus, if an estate be limited to A. and his heirs upon a trust to be exe- 
 cuted by A. and his heirs, and A., in his lifetime, conveys away the 
 estate, or devises it by his will, A., the alienor or his heir, cannot now 
 execute the power.(o) The heir, indeed, is no heir quateniis this estate; 
 for it was not allowed to descend, but was devised away from the person 
 who would have been heir. But compare the subsequent discussion, at 
 page 567, upon the question how far a trustee becomes such before the 
 transfer to him of the trust estate. 
 
 Upon a similar principle, in Cole v. Wade,(j5) where the power was 
 given to the trustees, and the heirs, executors, and administrators of the 
 survivor, it was held, that on the death of the survivor the power was 
 extinguished. The circumstances were these : A testator gave the 
 residue of his real and personal estate to Piuddle and Wade (whom he 
 appointed his executors,) their executors, administrators, and assigns, 
 aud directed his said trustees and executors, after making certain pay- 
 ments thereout, to convey and dispose of the said residue of his real and 
 personal estate unto and amongst such of his relations and kindred in 
 
 Re Burtt's Estate, 1 Drewry, 319 ; Wilson v. Bennett, 5 De Gex & Sm. 475. The 
 case of Hardwick v. Mynd, 1 Anst. 109, is an anomaly. 
 
 (i) Doyley v. Attorney-General, 2 Eq. Ca. Ab. 194 ; Fordyce v. Bridges, 2 Phill. 
 497 ; Newman v. Warner, 1 Sim. N. S. 457 ; and see Cole v. Wade, 16 Ves. 44, 47 ; 
 Hibbard t. Lambe, Amb. 309. 
 
 (k) Hartley v. Hartley, 3 Drew. 384 : Brassey v. Chalmers, 4 De Gex, M. & G. 
 528. 
 
 {I) Byam v. Byam, 19 Beav. 66. 
 
 (m) Doyley V. Attorney-General, 2 Eq. Ca. Ab. 194; Crewe v. Dicken, 4 Ves. 97. 
 
 (n) Supra, p. 233. 
 
 (0) Wilson V. Bennett, 5 De Gsx & Sm. 475 ; and see Re Burtt's Estate, 1 
 Drew. 319. 
 
 (/>) 16 Ves. 27.
 
 THE POWERS OF TRUSTEES. 447 
 
 such proportions, manner, and form, as his said executors should think 
 proper, his intention being that everything relating to that disposition 
 should be entirely *in the discretion of (he said trustees and r*xQ;j-] 
 executors, and the heirs, executors, and administrators of the "- -• 
 survivor of them ; and the testator directed his said trustees and execu- 
 tors and the survivor of them, and the heirs, executors, and administra- 
 tors of the survivor of them to mortgage or sell the said residue, or such 
 part thereof as they iu their discretion should think proper; the testator 
 meaning to leave it in the discretion of his said trustees and executors to 
 convey unto his relations the said residue in such manner and form as 
 his said trustees should think proper ; and, lastly, he directed that the 
 said Ruddle and Wade, or the survivor of them, or the heirs, executors, 
 or administrators of such survivor, should make the division within 
 fifteen years from the testator's decease. Wade, the survivor, devised 
 and be({ueathed the real and personal estate of the testator to William 
 and Edward Bray, their heirs, executors, administrators, and assigns, 
 upon the trusts of the will, and named them his executors for that spe- 
 cific purpose only, appointing his wife and another person executors as 
 to his own estates. The question was agitated, whether William and 
 Edward Bray could exercise the power of distribution among the rela- 
 tions. Sir W. Grant said, '<The original trustees and executors were the 
 same persons; all the real and personal estate was vested equally in 
 them; but the heirs and executors of the surviving trustee might be 
 difi"erent persons : yet all the directions about the distribution of the 
 residue proceed upon the supposition that the same persons are to select 
 the objects and settle the proportions in which they are to take ; but if 
 the real estate is to go to one, and the personal estate to another, the tes- 
 tator has left it entirely uncertain how the power is to be executed. 
 Whether the Messrs. Bray can in any sense be the executors of Wade, 
 with whose own property they are not to intermeddle, it is not material 
 to determine." His honor, therefore, decided, that the power had be- 
 come extinguished. 
 
 But, of course, the estate and the power, though originally intended 
 to be in the same hands, may be vested in different persons with the 
 sanction of the court, where the Intentions of the settlor cannot other- 
 wise be conveniently efi'ected. Thus a testator gave a sum of money to 
 be invested in the funds in the names of the head of a college at Oxford, 
 the junior bailiff *of the city, and the elder churchwarden of a r*53g-| 
 parish, the dividends to be applied to certain purposes as the L J 
 trustees should approve. The bailiff and churchwarden being annual 
 ofl&cers, the Investment as directed by the will would have been accom- 
 panied with frequent transfers of the stock : the court therefore ordered 
 that the money should be Invested in the names of two new trustees 
 jointly with the head of the college, but that the objects of the charity 
 should be nominated and approved in the manner pointed out by the 
 will. (5) 
 
 Thirdly. As to survivorship. The survivorship of the estate carries 
 
 {q) Ex parte Blackburue, 1 J. & W. 297 : aud see Hibbard v. Lambc, Amb. 300.
 
 448 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 with it the survivorship of such powers as are annexed to the trust. If 
 a mere power be given to A., B., and C, and one of them die, it is per- 
 fectly clear that the power cannot be exercised by the survivors; but if 
 trustees have an eqv italic power annexed to the trust, as if an estate be 
 vested in three trustees upon trust to sell, then as the power is coupled 
 with an interest, and the interest survives, the power also survives.(r) 
 
 The principle that trust powers survive with the estate appears to be 
 as old as the time of Lord Coke, for he observes, " If a man deviseih 
 land to his executors to he sold, and maketh two executors, and the one 
 dieth, yet the survivor may sell the land, because as the estate, so the 
 trust shall survive; and so note the diversity between a hare trust and a 
 trust coupled with an interest." {s) At the present day a trust, that is, a 
 potoer imperative, whether a bare power, or a power coupled with an in- 
 terest, would equally be carried into execution in the forum of a court 
 of equity ; for the maxim now is, The trust or power imperative is the 
 estate. But in the time of Lord Coke had a bare power been devised to 
 A. and B. to sell an estate, as for payment of debts, the authority was 
 one which A. and B. during their joint lives were compellable by suh- 
 poena in chancery to execute for the benefit of the creditors; but if 
 j^_ -. *A. happened to die before the sale had been carried into effect, 
 L -I the trust was extinguished, and the heir, who had always re- 
 tained a right to the intermediate rents and profits, was then seised of 
 the absolute and indefeasible inheritance. But in case the testator had 
 devised the estate to A. and B. to sell for payment of debts, then, as the 
 trust was not a mere power, but a power coupled with an interest, it re- 
 ceived a more liberal construction, and as upon the death of A. the whole 
 estate passed by survivorship to B., the power, being annexed to the 
 estate was considered as intended to survive with it.(l) 
 
 (r) Lane v. Debenham, 17 Jur. 1005 ; and see Gouldsb. 2, pi. 4 ; Peyton v. Bury, 
 2 P. W. 628 ; Mansell v. Vaughan, Wilm. 49 ; Eyre v. Countess of Shaftesbury, 2 
 P.W. 108,121, 124; Butler v. Bray, Dyer, 189 b; Byam v. Byam, 19 Beav. 58 ; Jenk. 
 44; Co. Lit. 112 b, 113 a; Flanders v. Clarke, 1 Ves. 9; Potter v. Chapman, 
 Amb. 100. 
 
 (s) Co. Lit. 113 a; and see ib. 181 b. 
 
 (1) In examining the cases of powers before the Statute of Uses, the following 
 points may be usefully noticed. 1. A person seised of the legal estate of lands 
 could not, before the Statute of Wills, have devised them directly, and therefore 
 he could not have gained his object indirectly by means of a power: had a tes- 
 tator devised that A. and B. should sell his estate, the authority was void. 2. But 
 a use was devisable, and therefore, if cestui que use had devised the lands to a 
 stranger, though the legal estate did not pass (the statute of Richard the Third, 
 which made mention of feoffments and grants, not extending to wills,) the devisee 
 might still have sued his subpcena in chancery, and have compelled the feoffees to 
 execute a conveyance of the estate. 3. If cestui que use had devised that A. and 
 B. should sell, and A. and B. in pursuance of the authority had made a feoffment 
 or grant, this assurance seems to have operated retrospectively as the assurance of 
 the testator, and so, falling within the words of the statute of Richard, served to 
 pass even the legal estate. 4. And cestui que use might have devised such an authority 
 even to his feoffees, and the power would have been construed in the same manner 
 as if it had been devised to a stranger : thus where a man enfeofi'ed A. and B. to 
 his own use, and afterwards devised that the said A. and B. should sell the estate 
 and apply the proceeds, &c., and A. and B. on the decease of the testator, enfeoff- 
 ed C. and D. to the like uses, it was ruled that A. and B. might still sell under
 
 THE POWERS OF TRUSTEES. 449 
 
 A distinction may perhaps be thought to exist between cases where 
 the language of the power is indefinite, as to the *persons by r^cKoo-i 
 whom it is to be exercised; for example, where an estate is L -l 
 vested in trustees and their heirs in trust, to sell, &c., and those eases 
 where the power is limited to persons by name, as upon trust, that " the 
 said A. and B." or that "the said trustees," (which is equivalent to 
 naming them,) shall sell ; but the courts have never relied upon any dis- 
 tinction of the kind, and it seems to be now decided that even where the 
 trust is reposed in the trustees by name, the survivor, who takes the 
 estate with a duty annexed to it, can execute the trust. (<) 
 
 But powers that are purely arbitrary, and independent of the trust, 
 and not intended in furtherance of the trust, must, it is conceived, be 
 construed strictly, and be governed by the rules applicable to ordinary 
 powers. If, for instance, the trustees by name have a power of revoking 
 the limitations, and shifting the property into a diflferent channel, this 
 discretion is evidently meant to be personal, and not to be annexed to 
 the estate. 
 
 IV. Of the control of the court over the exercise of powers. 
 
 Where a power is given to trustees to do, or not do, a particular thing 
 at their discretion, the court has no jurisdiction to control the trustees 
 in the exercise of that discretion, provided their conduct be bona fide, 
 and their determination is not influenced by improper motives.(M) 
 
 Thus, in Pink v. De Thuisey,(r) a testatrix gave 1000?. to A. upon a 
 condition precedent, but '' left her executor at Uherty to give the said 
 sum if he found the thing proper" though the condition should not have 
 been performed. A. died without having fulfilled the condition or 
 received the money, and his *personal representative filed a bill r^^Qo-i 
 against the executor of the testatrix to compel payment of the L J 
 legacy. A. in his lifetime had applied for the money, but the executor 
 
 {t) Lane v. Debenham, V. C. Wood, It Jur. 1005. 
 
 (m) Thomas v. Bering, 1 Keen, 729 ; Pink? v. De Thuisey, 2 Mad. 157 ; French 
 V. Davidson, 3 Mad. 396 ; Sillibourne v. Newport, 1 Kay & Johns. 602 ; Walker v. 
 Walker. 5 Mad. 424; Bankes v. Le Despencer, 11 Sim. 527, per Sir L. Shadwell; 
 Attorney-General v. Governors of Harrow School, 2 Ves. 551 ; Cowley v. Harts- 
 tonge, 1 Dow. 378, per Lord Eldon ; Potter v. Chapman, Amb. 99, per Lord Hard- 
 wicke ; Carr v. Bedford, 2 Ch. Re. 146 ; Wain v. Earl of Egmont, 3 M. & K. 445 ; 
 Livesey v. Harding, Taml. 4G0 ; Collins v. Viuing, C. P. Coop. Rep. 1837-38, 472; 
 Kekewich v. Marker, 3 Mac. & Gor. 326, per Lord Truro; Lee v. Young, 2 Y. & 
 C. Ch. Ca. 532. 
 
 {v) 2 Mad. 157. 
 
 the power, although they had parted with the legal fee. 5. Until the sale was 
 effected, the feoffees were trustees for the testator's heir, and were bound to account 
 to him for the accruing rents and profits ; and if the power, which, whether givea 
 to a stranger or to the feoffees, was construed as a naked authority, became ex- 
 tinguished by any means, as by the death of the donees of the power, the heir was 
 as absolutely entitled to the use in fee, as if no will had been made. 6. So 
 long as the power subsisted, the person who Avould suffer by the extinguishment 
 of the power might have compelled the donees, by filing a bill in chancery, to exe- 
 cute the power. 7. But if the proceeds of the sale were to be distributed in pios 
 usus, as no one could plead a personal loss by the non-execution of the power, 
 there was no one to sue a subpa-na, and the donees of the power were left to the 
 arbitrary exercise of their own discretion. See case temp. H. 7, Treat, of Powers, 
 Appendix, No. 1.
 
 450 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 had not thought it right to comply with the request. Sir T. Plumer, in 
 dismissing the bill, observed, " The executor says he did not think proper 
 to advance the legacy : is the court to decide upon the propriety of the 
 executor's withholding the legacy ? That would be assuming an authority 
 confided by the will to the discretion of the executor : it would be to 
 make a will for the testatrix, instead of expounding it." 
 
 Again, where a testator directed that so long as the produce of certain 
 estates should be consigned to the house of '< D. and Son," in which the 
 testator held a moiety of the emoluments, his executors, " unless circum- 
 stances should render it unnecessary, inexpedient, and impracticable," 
 should pay out of the income of his residuary property, an annuity of 
 600?. to Messrs. French, and the executors declined to pay the annuity. 
 Sir J. Leach said, " The executors are to exercise the authority, unless 
 circumstances shall render it unnecessary, inexpedient, and impracticable, 
 by which must be meant shall in their opinion render it unnecessary, 
 inexpedient, and impracticable. If they had distinctly stated in their 
 answer that they had not made the payment because, using their best 
 discretion upon the subject, they had come to a conclusion that circum- 
 stances had rendered the payment unnecessary, inexpedient, and imprac- 
 ticable, a court of equity could not have controlled their judgment, unless 
 it appeared that they had acted mala fide. But their answer states many 
 mixed motives for their refusal to pay the annuity, and it is plain that 
 they have never simply addressed themselves to the sound exercise of that 
 discretion which the testator has been pleased to place in them ;" and 
 the court declared in the words of the will, that the annuity was to be 
 paid so long as the consignments were continued, unless in the judgment 
 of the executors, circumstances should render it unnecessary, inexpedient, 
 and impracticable, (u') 
 
 . In another case a testator devised an estate to three trustees 
 
 L '^ -J *upon trust, for A. for life, and in case the conduct and behaviour 
 of A. should, for not less a time than the space of seven years, at the 
 least, from the testator's decease, *bc and continue to the entire satisfac- 
 tion and approbation of the trustees, agreeing and signifying their unani- 
 mous approbation of such conduct, then the said testator gave the said 
 estate to A. in fee ; and at the expiration of seven years from the testa- 
 tor's decease, A. filed a bill against the trustees praying that they might 
 signify their approbation of his conduct, and convey the estate to him in 
 fee, and one of the trustees stated by his answer, that he had not such 
 confidence in the conduct and discretion of the plaintiif as to induce him 
 to think that it would be proper or conformable with the intention of the 
 testator, to give the plaintiif absolute control over the estate. Sir John 
 Leach held, that where the discretion of trustees was to be exercised upon 
 matter of opinion and judgment, as to which well-intentioned persons 
 might difi"er, the court could not substitute the master for the trustees ; 
 and the court directed an inquiry, whether the conduct of the plaintiflF 
 had for seven years from the testator's death been to the entire satisfac- 
 tion and approbation of the trustees; and whether they had agreed and 
 signified their unanimous approbation. (x) 
 
 {w) French v. Davidson, 3 Mad. 396. (a:) Walker v. Walker, 5 Mad. 424.
 
 THE POWERS OF TRUSTEES. 451 
 
 So, where the trustees of a settlement had a power of sale at the request 
 and by the direction of the tenant for life, and A., the tenant for life, 
 entered into a contract for the sale of the estate to B., and the trustees 
 refused to concur in the sale, and the purchaser filed a bill for specific 
 performance against the tenant for life and the trustees, the court 
 observed, <' The contract having been entered into, A. was himself boutui 
 to perform it if he could, but he could not perform it without the con- 
 currence of the trustees, and the trustees did not concur."(y) « With 
 respect to the point which has been raised whether A. can now be called 
 upon to request or direct the trustees to convey, I think that he ought not 
 to be called upon to do so, unless it shall appear that the trustees when 
 ^requested or directed ought to comply with the request ; and r^.-ii-i 
 without at present determining this point, the strong inclination L J 
 
 of my opinion is, that the power of sale does give a discretion to the 
 trustees, in relation to all the matters comprised in the terms of the 
 power, and that this court has no power or jurisdiction to interfere with 
 the discretion so vested in the trustees."(2) And on a subsequent day 
 the master of the rolls observed, " I have before stated that I considered 
 the contract binding upon A. but not upon the trustees, and it appears 
 to me, upon the true construction of the settlement under which tlie 
 trustees hold the estate, that they have a discretion which would entitle 
 them to refuse to concur in a sale requested by A., and that in the 
 absence of any imputation upon them, this court ought not to interfere 
 with that discretion. "(a) 
 
 Again, where estates were vested in trustees upon trust to sell, and 
 pay the debts of the settlor, and the trustees were authorized to treat 
 with the creditors for the amount of their debts, and to deliver to them 
 debentures, and it was declared that no creditor should be entitled to any 
 benefit under the deed until such debenture was given ; on a question 
 whether the court could take upon itself to ascertain the debts, the 
 master of the rolls observed, '' If the trustees were authorised by this 
 deed to refuse debentures at their discretion to any lawful creditors, it is 
 plain that this court could never take upon itself the exercise of such a 
 discretion, nor grant power to the master to ascertain the parties entitled 
 to the benefit of this deed. The creditors must first submit their claims 
 to the investigation and allowance of the trustees, and if the trustees 
 refuse to enter into that investigation, the creditors will then be justified 
 in an application to the court."(6) 
 
 In another case, a power was given to trustees with the consent of the 
 tenant for life to invest the trust moneys in purchase of freehold or copy- 
 hold estates, or leasehold for a term of not less than 60 years : the tenant 
 for life was desirous of having the fund invested in a certain leasehold 
 property, but one of the trustees, for reasons which he stated, refused, 
 
 l-oi-2] 
 
 and the *court held, without examining into the weight of the 
 reasons assigned, that as the trustee had not acted from corrupt 
 motives, he was not to be controlled, (o) 
 
 (y) Thomas v. Bering, 1 Keen, 741, (z) lb. 743. (a) lb. 744. 
 
 (6) Wain v. Egmont, 3 Myl. & Keen, 445; and see Drever v. Mawdsley, IGSim. 
 511. (c) Lee v. Voung, 2 Y. & C. Ch. Ca. 532.
 
 452 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 But where the trustees were "authorized and required'' with the 
 consent and direction of the tenant for life, to invest in leaseholds, the 
 clause was held to be imperative upon the tenant for life's demand, and 
 the trustees were not allowed to say that the leaseholds would impose 
 personal liabilities upon themselves, for by being parties to the settlement 
 they had engaged to do it.(rf) 
 
 So, where a thing is to be done, but the mode of doing it is left to the 
 discretion of trustees, and they are willing to act, and there is no mala 
 fides, the court will not control their discretion. 
 
 Thus, if a fund be applicable to the maintenance of children at the 
 discretion of trustees, the court will not take upon itself to regulate the 
 maintenance, but will leave it in the hands of the trustees. (e) 
 
 Again, where a fund is bequeathed to executors or trustees upon trust 
 to distribute among the testator's relations, or apply the fund to any other 
 specific purpose in such 'manner as the executors or trustees may think 
 fit, the executors or trustees, if willing to execute the trust, will not, on 
 a bill being filed for carrying the trusts into execution, be deprived of 
 their discretionary power, but may propose a scheme before the master 
 for the approbation of the court. (/) 
 
 So where the objects of the charity are from time to time to be at the 
 discretion of the trustees, as if annual sums be made distributable either 
 to private individuals or public institutions, as the trustees may think fit, 
 the court will not even order a scheme to be proposed, but will leave the 
 trustees to the free exercise of their power with liberty for all parties to 
 
 apply- (^) 
 
 r-^p. . q-j *So where trustees had a power of selecting a lad for education 
 L -I from certain parishes, and if there were no suitable candidate, 
 then from any other parish, and the trustees upon consideration rejected 
 the candidate from the specified parish, and selected a lad from another 
 parish ; it was held that the court could not control the discretion. The 
 trustees had assigned no reasons for their choice, but that the court said 
 was not necessary, and in many cases would not be proper. (A) 
 
 But though the trustees invested with a discretionary power are not 
 bound to assign their reasons for the way in which they exercise it; yet, 
 if they do state their reasons, and it thereby appears that the trustees 
 were labouring under an error, the court will set aside the conclusion to 
 which they come upon false premises. (A 
 
 Of course there is sufiicient ground for the interference of the court, 
 wherever the exercise of the discretion by the trustees is infected with 
 
 [d) Beauclerk v. Ashburnham, 8 Beav. 322 ; Cadogan v. Earl of Essex, 2 
 Drewry, 227. 
 
 (e) Livesey v. Harding, Taml.460; Collins v. Vining, C. P. Coop. Rep. 183T-38, 
 472. 
 
 (/) Brunsden v. Woolredge, Amb. 507; Bennett v. Honeywood, id. 708; Mahon 
 T. Savage, 1 Sch. & Lef. Ill ; Supple v. Lowson, Amb. 729'; &c. 
 
 io) Waldo V. Caley, 16 Ves. 206; Horde v. Earl of Suffolk, 2 M. & K. 59; and 
 see Powerscourt v. Powerscourt, 1 Moll. 616. 
 
 {h) Re Beloved Wilkes's Charity, 3 Mae. & Gor. 440. 
 
 (i) Re Beloved Wilkes's Charity, 3 Mac. & Gor. 448 ; King v. Archbishop of 
 Canterbury, 15 East, 117.
 
 THE POWERS OF TRUSTEES. 453 
 
 fraud, (7c) or misbebaviour,(/) or they decline to undertake the duty of 
 exercising the discretion ;(ot) or generall}' where the discretion is mis- 
 cliievously and ruinously exercised, as if a trustee be authorized to lay 
 out money upon government, or real, or personal security, and the trust- 
 fund is outstanding upon any hazardous security.(?i) And where the 
 trustees of a cliarlty were empowered to lease for three lives or thirty- 
 one years, the court expressed an opinion that the discretion might be 
 controlled, if it appeared for the benefit of the charity that such a power 
 should not be acted upon.(o) 
 
 Where proceedings had been taken for controlling the *discre- r^icc ij^-i 
 tion of the trustees, Lord Hardwicke said, " though he could not L J 
 contradict the intent of the donor, which was to leave it in the discre- 
 tion of the trustees, yet he would not dismiss the information, but would 
 still hcep a hand over thcni.^Hp\ 
 
 And generally where a suit has been instituted for the administration 
 of the trust, and a decree has been made, that attracts the court's juris- 
 diction, and the trustee cannot afterwards exercise the power without the 
 concurrent sanction of the court ; as if a trustee have a power of ap- 
 pointment of new trustees, he is not excluded from the right of nomi- 
 nating the person, but the court must give its sanction to the choice, (g') 
 But if a decree has not been made, then, as the plaintiff may dismiss 
 his bill at any moment, the trustee must not assume that a decree will 
 be made, but must proceed with the due execution of the trust.(r) He 
 cannot be advised, however, to act without first consulting the court. It 
 was held in one case, that the trustees had not exceeded their duty by 
 appointing new trustees after the filing of the bill, as no extra costs had 
 been thereby occasioned ;(.s) but in another case it was said that the 
 trustees ought, under the difficulties in which they were placed, to have 
 consulted the court, and as instead of so doing, they had acted indepen- 
 dently and made an appointment which, though they entered into evi- 
 dence, they could not justify, and great extra costs had arisen out of 
 their conduct, the trustees were made to pay personally the extra costs 
 which had been occasioned. (A 
 
 {k) lb. 552, per Lord Hardwicke; Potter v. Chapman, Amb. 99, per eundem; 
 Richardson v. Chapman, Y B. P. C. 318 ; French v. Davidson, 3 Mad. 402, per Sir 
 J. Leach. 
 
 [1) Maddison v. Andrew, 1 Ves. 59, per Lord Hardwicke ; Attorney-General v. 
 Glegg, Amb. 585, joer eundem; Willis v. Childe, 13 Bear. 117 ; and see Re Wilkes's 
 Charity 3 Mac. & Gord. 440 ; and see Byam v. Byani, 19 Beav. G5. 
 
 (m) Gude v. Worthington, 3 De Gex & Sm. 389. This was apparently the 
 ground on which the case was decided, but the refusal of the trustees to act does 
 not sufficiently appear on the report. And see Mortimer v. Watts, 14 Beav. 022. 
 
 [n) De Manneville v. Crompton, 1 V. & B. 359; and see Lee v. Young, 2 Y. & 
 C. Ch. Ca. 532. 
 
 (o) Ex parte Berkhampstead Free School, 2 V. & B. 138. 
 
 [p) Attorney-General v. Governors of Harrow School, 2 Yes. 551. 
 
 {q) Webb v. Earl of Shaftesbury, 7 Ves. 480 ; v. Robarts, 1 J. & W. 251 ; 
 
 Middleton v. Reay, 7 Hare, 106 ; Kennedy v. Turnley, 6 Ir. Eq. Rep. 399. 
 
 (r) See Williams on Executors, 891, 4th Edn. 
 
 (s) Cafe v. Bent, 3 Hare, 245. (t) Attorney-General v. Clack, 1 Beav. 467.
 
 454 LEWIN ON THE LAW OF TKUSTS, ETC. 
 
 [*545] *CH AFTER XX. 
 
 OF ALLOWANCES TO TRUSTEES. 
 
 Now that we have discussed the duties of trustees, and the extent of 
 their jjowers, we may next enter upon a subject very closely interwoven 
 with the execution of the office, viz : First, The allowances to trustees 
 for their time and trouble ; and Secondly, The allowances to trustees for 
 actual expenses. 
 
 SECTION I. 
 
 ALLOWANCES FOR TIME AND TROUBLE. 
 
 It is an established rule in general, that a trustee shall have no allow- 
 ance for his trouble and loss of time ; one reason given is, that on these 
 pretences, if admitted, the trust estate might be loaded, and rendered of 
 little value, besides the great difficulty there would be in settling and 
 adjusting the quantum of such allowance, especially as one man's time 
 may be more valuable than that of another. And there can be no hard- 
 ship in this respect upon the trustee, for it lies in his own option whether 
 he will accept the trust or not. (a) But the true ground is, that if the 
 trustee were allowed to perform the duties of the office, and to claim 
 compensation for his services, his interest would be opposed to his duty ; 
 r*54n ^°*^'^^ ^ matter of prudence, the *court will not allow a trustee 
 L -J or executor to place himself in such a situation. (&) 
 
 And the rule applies not only to trustees in the strict and proper sense 
 of the word, but to all who are virtually invested with a fiduciary 
 character, as executors and administrators,(r) mortgagees, (f?) receivers,(e) 
 committees of lunatics' estates,(/) &c. 
 
 But trustees for absentees of estates in the West Indies are allowed a 
 commission for their personal care in the management and improvement 
 of the property. However, if, instead of remaining upon the island, 
 they commit the management to the hands of agents, the court will re- 
 ject the claim; for it would be a strange construction that one allowed 
 a commission on account of the proprietor's absence should insist upon 
 
 (a) Robinson v. Pett," 3 P. W. 251, per Lord Talbot; Gould v. Fleetwood, cited 
 ib. note (A) ; How v. Godfrey, Rep. t. Finch, 361 ; Brocksopp v. Barnes, 5 Mad. 
 90 ; Ayliffe v. Murray, 2 Atk. 58 ; In re Ormsby, 1 B. & B. 189, per Lord Manners ; 
 Charity Corp. v. Sutton, 2 Atk. 406, per Lord Hardwicke ; Bonithon v. Hockmore, 
 1 Vern. 316, &c. 
 
 (6) New V. Jones, Exch. Aug. 9, 1833, cited 9th Jarm. Prec. 338, per Lord 
 Lyudhurst ; and see Burton v. Wookey, 6 Mad. 368. 
 
 (c) Scattergood v. Harrison, Mos. 128; How v. Godfrey, Rep. t. Finch, 361 ; 
 Sheriff V. Axe, 4 Russ. 33. 
 
 (d) Bonithon v. Hockmore, 1 Vern. 316; Langstaffe v. Fenwick, 10 Ves. 405; 
 French v. Baron, 2 Atk. 120 ; Carew v. Johnston, 2 Sch. & Lef. 301 ; Arnold v. 
 Garner, 2 Phil. 231 ; Mathison v. Clarke, 3 Drewry, 3. 
 
 (c) In re Ormsby, 1 B. & B. 189. 
 
 (/) Anon, case^ 10 Ves. 103; Re Walker, 2 Phill. 630; Re Westbrooke, ib. 631.
 
 OF ALLOWANCES TO TRUSTEES. 455 
 
 his reward wlien he had been absent himself.(^) But a manager, though 
 he forfeits his commission during the period of his absence, will be repaid 
 the sums actually disbursed by him for the care of the estate by others, 
 provided the payments he has made be in themselves reasonable and 
 proper. (7i) 
 
 The rate of commission in Jamaica has been regulated by several acts 
 of assembly : it was originally 10/. per cent, upon the receipts, then 8/. 
 per cent., and since Ql. per cent.(Q But the intention of the legislature 
 was only that the rate should not exceed 6/. per cent., not that under 
 particular circumstances it might not be a great deal less.(/i;) 
 
 Mortgagees in possession of estates situate in Jamaica are by the act 
 referred to expressly prohibited from charging any commission, except 
 what they may have themselves paid by way of commission to a factor,(/) 
 and even irrespectively of ^statutory prohibition, mortgagees in r^^^y-i 
 possession of West Indian property are under the same disability L 
 of charging commission as if the property were situate in this country. (m) 
 
 An executor who has been appointed in the East Indies and adminis- 
 ters in that country, and then returns to England, will, if called upon in 
 a court of equity to render an account, be allowed a commission of five 
 per cent, upon the receipts or payments according to the practice of the 
 Indian courts. The appointment of an executor in the East Indies is 
 considered the appointment of an agent for the management of the estate. 
 Without such an allowance, where a person died in India deprived of the 
 presence of his relations^ the effects of the testator might often not be 
 collected at all. Besides, the executors in England could scarcely pro- 
 cure a person to undertake the office at any cheaper rate.(/i) If an In- 
 dian executor after collecting part of the assets comes over to this country 
 he will be allowed a commission on those assets only that were collected 
 by himself in India, and not on the assets subsequently collected by his 
 agents and transmitted to this country, for the courts here allow the com- 
 mission because the Indian courts allow it, and the Indian courts allow 
 it on the ground of residence in India. (o) 
 
 An executor in India will only be allowed the commission where the 
 testator himself has not left him a legacy for his trouble j(p) but if the 
 
 {g) Chambers v. Goldwin, 5 Ves. 834; 9 Ves. 254, see 273. 
 
 (h) Forrest v. Ehves, 2 Mer. 08. 
 
 \i) Chambers v. Goldwin, 9 Ves. 267. (A") See S. C. id. 257. 
 
 \l) See S. C. 5 Ves. 837 ; 9 Ves. 268. {m) Leith v. Irvine, 1 M. & K. 277. 
 
 {n) Chetham v. Lord Audley, 4 Ves. 72 ; Matthews v. Bagshaw, 14 Beav. 123. 
 To the latter case is appended the following note: — 
 
 " The custom of allowing a commission to executors and administrators in the 
 presidency of Bengal has been abolished by Act No. VIL, of 1849, of the governor- 
 general in council. By that act an administrator-general has been appomted in 
 place of the ecclesiastical registrar, with a reduced commission of 3 per cent, on 
 moneys distributed or invested in manner therein provided. 
 
 "By Act No. XL of 1850, the provisions of the above act, with certain restric- 
 tions, are extended to the presidencies of Madras and Bombay, but the rate of 
 commission to the public administrator is there to remain 5 per cent, until altered 
 to 3 per cent, by the governor and council in each of these presidencies.'' 
 
 (o) Campbell v. Campbell, 13 Sim. 168 : and see 2 Y. & C. Ch. Ca. 607. 
 
 \p) Freeman v. FairUe, 3 Mer. 24.
 
 456 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 amount of the legacy be an inadequate compensation for the duties of the 
 office, it seems the executor, so as he signify his resolution in proper time, 
 may renounce *the intended legacy, and take advantage of the 
 L J commission. (§') 
 
 A person who has carried on a business with another man's money, 
 and so is constructively a trustee, will, if compelled to account for the 
 profits, be sometimes allowed a compensation for his skill and exertions 
 in the management of the concern. 
 
 Thus, Brown and De Tastet were partners, and Brown died, and De 
 Tastet carried on the business with Brown's money. A bill was filed by 
 Brown's representative against De Tastet for an account, and Lord Eldon 
 said, "• It could not be denied, that if the business was such that on the 
 death of the party other persons were concerned in aiding it by the 
 application of their skill, their services, and their property, a great deal 
 would be included under the head of just allowances, which, till the 
 master had thoroughly investigated the case, the court could not deter- 
 mine;" and it was ordered, that upon the reference to the master, De 
 Tastet should be at liberty to submit any claims to just allowances for 
 his management of the business, the master to certify upon what grounds 
 he made the allowances should the plaintiff require it, or upon what 
 grounds he refused to make the allowances if required by the defend- 
 ant, (r) 
 
 To this principle must be referred the early case of Brown v. Litton, 
 before Lord Harcourt.(.s) The captain of a ship, who had 800 dollars 
 on board which he intended to invest in trade, died upon the voyage, and 
 the mate, who succeeded to the command of the vessel, took the 800 
 dollars, and traded with them, and made great improvements. The exe- 
 cutrix of the captain filed a bill for an account, and Lord Keeper Har- 
 court said, ^' The defendant was like a trustee, and was clearly liable to 
 account for the profits. It resembled the case of two joint traders, where 
 one died, and the survivor carried on the business, when the survivor 
 should account for the profits he made to the representative of the de- 
 ceased partner." And the court observed, that '' this country being an 
 P^r iq-| island, all imaginable ^encouragement ought to be given to trade ; 
 L J and it was a comfort to a man to know that if he should die on 
 the passage, the improvement of his eifects should be for the advantage 
 of his family ; but that, to recompense the defendant for his care in trad- 
 ing with the money, the master should settle a proper salary for the pains 
 and trouble he had been at in the management thereof." 
 
 But a person will not be allowed to charge any thing for his manage- 
 ment of a trade or business, where he has been clothed in express terms 
 with a character of a trustee or executor. (A 
 
 A solicitor or attorney who sustains the character of trustee will not 
 be permitted to charge for his time, trouble, or attendance, but only for 
 
 {q) See Freeman v. Fairlie, 3 Mer. 28. 
 
 (r) Brown v. De Tastet, Jac. 284; and see Sir Samuel Romilly's argument in 
 Crawsliay v. Collins, 15 Ves. 225. 
 
 {s) 1 P. W. 140; S. C. 10 Mod. 20. 
 
 {t) Stocken v. Dawson, 6 Beav. 371 ; Burden v. Burden, 1 V. & B. 170 ; Brock- 
 Bopp V. Barnes, 5 Mad. 90. See Marshall v. Holloway, 2 Sw. 432.
 
 OF ALLOWANCES TO TRUSTEES. 457 
 
 his actual disbursements ;(«) nor can the charge be made by the firm of 
 which the trustee is a partner.(i') << The principle," observed Lord 
 Lyndhurst, " applies as strongly to the case of an attorney as to that of 
 any other person. If an attorney who is an executor performs business 
 that is necessary to be transacted, he is not entitled to be repaid for those 
 duties; for it would be placing his interest at variance with the duties 
 he has to discharge. It is said, the bill may be taxed, and tliis would be 
 a sufficient check ; but I am of opinion that that would not be a suffi- 
 cient check : the estate has a right not only to the protection of the tax- 
 ing officer, but also to the vigilance and guardianship of the executor or 
 trustee in addition to the check of the taxing officer. There may be 
 cases where a trustee placed in the situation of a solicitor might, if he 
 were 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. If a trustee, *who is p^. r^-. 
 a solicitor, acts as a solicitor, he is nut entitled to charge for his L -• 
 labour, but only for his costs out of pocket. "(w) 
 
 But a solicitor in the country defending a suit in chancery as execu- 
 tor through a town agent, will be allowed such proportion of the agent's 
 bill in respect of the defence as such agent is, on his own account, enti- 
 tled to receive. (.f) And in one case it was held that the rule so strin- 
 gently enforced in the administration of a trust out of court, did not 
 apply to the case of several co-trustees, who, not by any act of their own, 
 but at the will of another, were made defendants to a suit, and that in 
 such a case if one of the trustees was a solicitor, and acted for himself 
 and his co-trustees, he ought to be allowed the full costs, unless it could 
 be shown that they had been, to any extent, increased through his own 
 conduct.(v/) But this exception stands by itself, and is not likely to be fol- 
 lowed ; and accordingly, where a solicitor, a single trustee, defended him- 
 self by his partner, the claim to professional profits was disallowed. (2) 
 
 If a cestui que trust settle accounts with a trustee, a solicitor, and exe- 
 cute a general release, and the accounts contain items of charges for pro- 
 fessional services, the eet^tui que trust, if he had no legal advice, and was 
 not expressly informed that professional services miglit have been disal- 
 lowed, may open the accounts as regards the objectionable items ;(</) but 
 if the cestui que trust had independent legal assistance, he is bound by 
 the release. (6) 
 
 The doctrine against professional charges by a trustee, a solicitor, is so 
 
 (m) New V. Jones, Excbeq. Aug. 9, 1833, 9 Jarm. Free. 338 ; Moore v. Frowd, 
 3 M. & C. 4G; Eraser v. Palmer, 4 Y. & C. 515; In re Sherwood, 3 Beav. 338 ; 
 York V. Brown, 1 Coll. 2G0; Bainbrigge v. Blair, 8 Beav. 588 ; Stanes v. Parker, 
 9 Beav. 385; Broughton v. Broughton, 5 De Gex, Mac. & Gor. ltJO;Todd v. 
 Wilson, 9 Beav. 48G ; Gomley v. Wood, 3 Jones & Lat. G78. 
 
 (v) Collins V. Carey, 2 Beav. 128. (w) New v. Jones, 9 Jarni. Prec. 338. 
 
 (x) Burge v. Brutton, 2 Hare, 373. 
 
 (y) Cradock v. Piper, 1 Mac. & Gord. 664, S. C. 1 Hall & T. 617. 
 
 (z) Lyon v. Baker, 5 De Gex & Sm. 622 ; and see Lincoln v. Windsor, 9 Hare, 
 158 ; Broughton v. Broughton, 5 De Gex, Mac & Gor. IGO ; 2 Sm. & Gif. 422. 
 
 (a) Todd V. Wilson, 9 Beav. 486. 
 
 {b) Stanes v. Parker, 9 Beav. 385: Re Wyche, 11 Beav. 209.
 
 458 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 rigidly applied, that where a security has been given for payment of such 
 pr'ofessional charges, it may be set aside, even as against a purchaser for 
 a valuable consideration, if he had notice. (c) 
 
 The rule against allowances to trustees is merely a general one in the 
 absence of express directions to the contrary; for there is no objection, 
 
 -p^^-, if the settlor himself choose to ^compensate the trustee for his 
 [ ^^■'-J services, either by the gift of a sum in gross, or by the allowance 
 of a salary, (c?) 
 
 Thus, in Webb v. The Earl of Shaftesbury,(e) an estate was devised to 
 Arrowsmith and his heirs upon trust to settle and manage, and out of the 
 rents and profits to pay all rates and taxes, charges of repairs, stewards', 
 bailiffs', and gamekeepers' salaries, and all other expenses, and the com- 
 mission thereafter mentioned, and subject thereunto upon certain trusts; 
 and the testator directed that the trustee should retain for his trouble a 
 commission of bl per cent, on the gross rental of the estates. The trus- 
 tee claimed to be reimbursed all his expenses over and above his com- 
 mission ; and Lord Eldon said, <' he felt a strong inclination to hold that 
 this commission of 5?. per cent, was the whole the trustee was to have, 
 but the will did not say so, and upon the will he must give him the 
 other allowances." 
 
 And if a testator give an executor a salary for his trouble, the allow- 
 ance will not cease on the institution of a suit ; for though the manage- 
 ment be thenceforward under the direction of the court, the executor is 
 still called upon to assist 'the court in the administration with his care 
 and vigilance. (/) 
 
 Where the settlor has directed a remuneration, but has not declared 
 his mind as to the amount, it will be referred to the master to settle the 
 quantum meruit according to the circumstances of the case.(<7) 
 
 The trustee may also contract {or a.n allowance with his cestui que trust ; 
 but bargains of this kind are very suspicious, and arc watched by the 
 court with an eye of extreme jealousy. 
 
 Two persons had been made executors and trustees, and one of them 
 refused to act unless the cestui que trust would give them, besides their 
 legacies, some consideration for their trouble. This the cestui que trust 
 refused for some to time to do, but at last consented to give 100/. to one, 
 and 200/. to the other. Lord Hardwicke said, " With regard to the 
 question, whether upon general grounds a trustee may make an agree- 
 ^^.^ -. ment with his cesttii que trust for an extraordinary allowance *over 
 L "'J and above what he is allowed by the terms of the trust, I think 
 there may be cases where the court would establish such agreements ; 
 but at the same time time would be extremely cautious and wary in 
 doing it. In general the court looks upon trusts as honorary, and a 
 burden upon the honour and conscience of the person intrusted, and not 
 undertaken upon mercenary views ; and there is a strong reason, too, 
 
 (c) Gomley v. Wood, 3 Jones & Lat. 678. 
 
 {d) Robinson v. Pett, 3 P. W. 250, per Sir J. Jekyll ; Willis v. Kibble, 1 Beav. 
 559. 
 
 (c) T Ves. 480. (/) Baker y. Martin, 8 Sim. 25. 
 
 (g) Ellison v. Airey, 1 Ves. Ill, see 115 ; and see Willis v. Kibble, 1 Beav. 559.
 
 OF ALLOWANCES TO TRUSTEES. 459 
 
 against allowing any thing beyond the terms of the trust, because it gives 
 an undue advantage to a trustee to distress a cestui que trust ; and there- 
 fore this court has always held a strict hand over trustees in this particu- 
 lar. If a trustee comes in a fair and open manner, and tells the cestui 
 que trust that he will not act in such a troublesome and burdensome 
 ofl&ce unless the cestui que trust will give him a further compensation, 
 and it is contracted for between them, I will not say this court will set 
 it aside, though there is no instance where they have confirmed such a 
 bargain. I consider the present case in this light : — Two trustees are 
 making an ill use of an authority they had under the will to extort a 
 reward from the cestui que trust. If they had told him, ' Give us a 
 further reward, or we will renounce,' they had acted fairly, and some- 
 thing might be said in favour of the contract ; but the personal estate 
 was vested in them before probate, and could not be got out of them 
 without an actual renunciation. The real estate was likewise vested in 
 them, and could not be taken out of them but by an actual assignment ; 
 and, sensible of these difficulties upon the cestui q^ie trust, the trustees 
 and executors, in order to force him into their terms, would not act. 
 Consider the ill consequences of such a case. Suppose it should be 
 necessary that a will should be immediately proved, as in the case of a 
 widow and children ; shall a trustee, in whom the testator reposed a 
 trust and confidence, and depended upon his honour and kindness, insist 
 upon such hard terms as to have an unreasonable reward before he will 
 either prove the will or act in the trust ?" ' And the trustees were 
 refused the advantage of their bargain. (A) 
 
 Where a trust was created by deed, and it was dojibtful whether, as 
 the instrument directed the payment of "all costs, ^charges, |.^^_„^ 
 and expenses which the trustees might sustain, expend, or be L J 
 put unto, the same to be reckoned as between attorney and client," the 
 trustees, who were solicitors, had not stipulated for the allowance of 
 their professional charges, besides their expenses out of pocket. Lord 
 Cottenham said, " The parties may by contract make a rule for them- 
 selves, and agree that a trustee, being a solicitor, shall have some benefit 
 beyond that which, without such contract, the law would have allowed ; 
 but in such a case the agreement must be distinct, and in its terms 
 explain to the client the eifect of the arrangement, and the more parti- 
 cularly when the solicitor for the client, becoming himself a trustee, has 
 no interest personal to himself adverse to that of the client. It is not 
 easy to conceive how, consistently with the established rules respecting 
 contracts between solicitors and their clients, a solicitor could maintain 
 such a contract made with his client for his own benefit, the client 
 having no other professional adviser, and in the absence of all evi- 
 dence, and of any probability that he was aware of his rights, or of the 
 rule of law, or of the eflfect of the contract."(/) And his lordship dis- 
 allowed the claim. 
 
 Even where the contract is not void ah initio, the conditions of it 
 must be fulfilled to the letter, or the trustee is not entitled to his reward. 
 
 (/i) Ajiiffe V. Murray, 2 Atk. 58. (t) Moore v. Frowd, 3 M. & C. 46, see 48.
 
 460 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 An executor, who had no legacy, and where the execution of the trust 
 was likely to be attended with trouble, agreed with the residuary lega- 
 tees, in consideration of 100 guineas, to act in the executorship. He 
 died before the execution of the trust was completed, and his executors 
 brought a bill to be allowed those 100 guineas out of the trust money in 
 their hands ; but the court said all bargains of this kind ought to be dis- 
 couraged, as tending to eat up the trust, and here the executor had 
 died before he had finished the affairs of the trust; and so the plaintiff's 
 demand was disallowed. (/..•) 
 
 A trustee dealing, not with the cestui que trust, but with the court, is 
 of course at liberty, before accepting the trust, to stipulate for a reason- 
 able remuneration. (/) 
 
 f^rr-A-, *In Marshall v. Holloway,(»i) Croft, one of three trustees, had 
 L -J declined to prove the will or enter upon the trusteeship, but had 
 executed no disclaimer of the estate, and, as the person best acquainted 
 with the testator's affairs, had been employed by his co-trustees in the 
 capacity of agent. The co-trustees filed a bill for the administration of 
 the trust, and prayed, inter alia, that in case the court should be of 
 opinion that Croft ought to be discharged from the trust, then he might 
 convey the trust estates, and be allowed a compensation for his time and 
 trouble in the management of the testator's affairs. Lord Eldon decreed, 
 that, " it being alleged by the co-trustees that the nature and circum- 
 stances of the testator's estate required the application of a great pro- 
 portion of time, and that' they could not undertake to continue in the 
 trust without the aid and assistance of Croft, who was better acquainted 
 therewith than ai^ other person, and that it would be for the benefit of 
 the estate that Croft should continue a trustee, and it being alleged by 
 Croft that due attention to the affairs of the testator would require so 
 much of his time and attention as would be greatly prejudicial to his 
 other pursuits, and therefore he would not have undertaken to act there- 
 in, but under the assurance that an application would be made to the 
 court to authorize the allowance of a reasonable compensation for his 
 labour and time, and that he could not continue to act therein without 
 such reasonable allowance being made to him, it should therefore be 
 referred to the master, to settle a reasonable allowance to be made to 
 Croft for his time, pains, and trouble for the time past ; and if the 
 master should be of opinion that Croft should be continued a trustee, 
 then to settle a reasonable allowance to be made to Croft for his services 
 in the time to come." 
 
 But if a trustee omit to contract with the court before entering upon 
 his duties, he will have great difficulty in obtaining compensation after- 
 wards, and we may add that in no case will the court remunerate a trus- 
 tee for his trouble by permitting him to make j)rofessional charges where 
 the settlor has not so directed, but will compensate him for his trouble 
 if at all by a regular and fixed salary, fn) Lord Langdale commenting 
 
 (k) Gould V. Fleetwood, cited Robinson v. Pett, 3 P. W. 251, note (A.) 
 [l) Brocksopp V. Barnes, 5 Mad. 90, per Sir J. Leach ; see Morison v. Morison, 
 4 M. & C. 215. 
 
 (to) 2 Sw. 432. (n) Bainbrigge v. Blair, 8 Beav. 588.
 
 OF ALLOWANCES TO TRUSTEES. 401 
 
 *upon Marshall v. Holloway, observed, the trustee and solicitor ^^^.^ 
 in that case was not allowed to charge his bill of costs, or to L'^'^'^J 
 charge for each particular item of business done, but an inquiry was 
 directed whether it would be proper, under the peculiar circumstances, 
 to give him some remuneration or compensation for his loss of time and 
 trouble. I may therefore safely say that this court would not, even in a 
 case when it thought a deviation from the general rule advisable and 
 proper, make that deviation by allowing a gentleman acting as solicitor 
 for himself as trustee to make the usual professional charfjes against the 
 trust fund. To do so would be to place a party having a duty conflict- 
 ing with his interest in the position of having to make out his own bill 
 against himself, leaving any error which might occur to be settled and 
 set right at some future occasion. Assuming that all that was done here 
 was highly beneficial, and that a great benefit was acquired to the estate 
 by the exertion of the trustee, was he not bound to do his utmost for the 
 benefit of his trust? In every case a trustee might say I have had a 
 great deal of trouble in these matters, and have spent a considerable 
 portion of my time and trouble. Is that the rule ? I am not aware of 
 the existence of any such rule, nor has any authority been produced 
 which tends in the least to show that this is the way in which trustees 
 who have strictly performed their duty, and thereby procured a benefit 
 to the estate, are to be dealt with. It is very different from the case 
 where a trust being in the course of execution, and many things remain- 
 to be done which can be done beneficially only by a particular trustee, 
 who cannot from his situation do it without grievous personal loss, and 
 that party comes to the court and states that he is in a situation and is 
 willing to do these things, but that he cannot consistently with his own 
 interest proceed with such duties, and gratuitously devote his time for 
 the benefit of the trust. In such a case it is competent for the court, 
 considering what is beneficial to the cestui que trust, and is calculated to 
 promote their interest, to take the matter into consideration, and to give 
 proper remuneration to that person who alone by his own exertion can 
 produce that benefit, fo^ 
 
 *During the continuance of the usury laws a mortgagee could p^^^,,.. 
 not, as a general rule, have bargained for a compensation exceed- L -• 
 ing, together with the actual interest, the legal rate, for an agreement 
 of this kind would have tended to usury. (p") But after a long struggle 
 certain special exceptions were established in favour of mortgagees {not 
 in possession^ of West Indian estates. (5-) 
 
 As a trustee will not be permitted to charge for his personal care and 
 loss of time, it is but just he should be allowed on proper occasions to 
 call in the assistance of agents at the expense of the estate. 
 
 Thus a trustee or a mortgagee may, if the case require it, appoint a 
 collector of rents. (/■) 
 
 (0) Bainbrigge v. Blair, 8 Beav. 595, 596. 
 \p) See Chambers v. Goldwin, 9 Ves. 271. 
 
 Iq) See the history of tlie struggle detailed in Lord Brougham's judgment in 
 Leith V. Irvine, 2 M. & K. 277. 
 
 (r) Davis v. Deudj, 3 Mad. 170; Stewart v. Hoare, 2 B. C. C. 663; and see 
 
 March, 1857.— 30
 
 462 LEAVIN ON THE LAW OT TRUSTS, ETC. 
 
 And as a man is not bound to be his own bailiff, if a trustee or mort- 
 gagee employ a skilful person in that capacity, the salary must be 
 allowed Us) at least the court will grant that indulgence where the estate 
 is at such a distance from the mortgagee's residence, that he must have 
 appointed a bailiff, had the estate been his own.(?) 
 
 /\.n executor employed a person who had been his clerk to transact 
 some business for him relative to the testator's affairs, and the master 
 insisted it was the executor's own duty, and refused to allow the expense. 
 But Lord Hardwicke said, << he was clear, that if an executor paid an 
 attorney for his trouble and attendance in the management of the estate, 
 he ought to be repaid the sums he had so disbursed," and ordered a 
 reference to the master to tax the items of the bill.(M) 
 
 If the accounts be complicated, and the executor or trustee take upon 
 himself to adjust and settle them, although it may occupy a great deal 
 of his time and attention, the principle of equity is that he cannot claim 
 a compensation ; but if he choose to save his own trouble by the employ- 
 i-^- - ment of an ^accountant, he is entitled to charge the trust estate 
 L -I with it under the head of expenses. (i*) 
 
 The executor of a trader had employed an agent to collect debts at a 
 commission of 5 per cent. The master had reduced the commission 
 to 2i per cent. ; and, the executor upon that ground taking an excep- 
 tion to the report, Sir J. Leach said, " Executors, generally speaking, are 
 not allowed to employ an agent to perform those duties which by accep- 
 ting the office of executors they have taken upon themselves ; but there 
 may be very special circumstances in which it may be thought fit to allow 
 them the expenses they have incurred in the employment of agents : I 
 have some doubt whether in this case the master ought to have made 
 aiii/ allowance, but with the allowance of 2^ per cent, the executor must 
 be content." (w) 
 
 SECTION IL 
 
 ALLOWANCES TO TRUSTEES FOR EXPENSES. 
 
 Though a trustee is allowed nothing for his trouble, he is allowed every 
 thing for his expenses out of ])ocket.{x\ <' It flows," said Lord Eldon, 
 " from the nature of the office, whether expressed in the instrument or 
 
 Wilkinson v. Wilkinson, 2 S. & S. 23T ; Re Westbrooke, 2 Phill. G31 ; Nicholson 
 V. Tutin, 3 K. & J. 159. 
 
 (s) Bonithon v. Hockmore, 1 Yern. 316 ; Chambers v. Goldwin, 9 Yes. 272, per 
 Lord Eldon. 
 
 {I) Godfrey v. Watson, 3 Atk. 518, per Lord Hardwicke. 
 
 (m) Macnamara v. Jones, 2 Dick. 587. 
 
 {v) New V. Jones, Exch., Aug. 9, 1833, cited 9 Jarm. Prec. 338; Henderson v. 
 M'lver, 3 Mad. 275. 
 
 {w) Weiss V. Dill, 3 M. & K. 26 ; and see Giles v. Dyson, 1 Stark. N. P. C. 32 ; 
 Hopkinson v. Roe, 1 Beav. 180; Day v. Croft, 2 Beav. 488. 
 
 (z) How V. Godfrey, Rep. t. Finch, 361; In re Ormsby, 1 B. & B. 190, per Lord 
 Manners; Hide v. Haywood, 2 Atk. 126; Caffrey v. Darby, 6 Yes. 497, per Sir W. 
 Grant; Godfrey v. Watson, 3 Atk. 518, per Lord Hardwicke; Feoflfees of Heriot's 
 Hosp. Y. Ross, 12 CI. & Fin. 512, 515, per Lord Cottcnham.
 
 OF ALLOWANCES TO TRUSTEES. 463 
 
 not; that the trust property shall reimburse him all the charges and ex- 
 penses incurred in the execution of the trust. "(y) 
 
 Thus a trustee will be entitled to be reimbursed his travelling expen- 
 ses,(s) unless they be improperly incurred. (a) 
 
 *So a trustee may give fees to counsel, and shall have allow- f-:i-cco-! 
 ance thereof. (Z<) L -" 
 
 And if a trustee be sued concerning the trust, and have his costs 
 paid him as between party and party, and the cestui que trust afterwards 
 file a bill for an account, the trustee will be allowed his necessary costs 
 in the former suit, and will not be concluded by the amount of the 
 taxation ;(c) but of course a trustee will have no claim to reimbursement 
 out of the trust fund, where the legal proceedings were occasioned by 
 his own negligence in the first instance ;((?) or were improperly instituted 
 by him -Je) and a trustee will not be allowed, without question, whatever 
 sums by way of costs he may have paid his solicitor, for the bill, as be- 
 tween trustee and cestui que trust, though not submitted to a regular 
 taxation (which is between solicitor and client,) will be moderated by 
 the court by a deduction of such charges as may appear irregular and ex- 
 cessive ;(/) and the trustee will not be allowed interest on the costs, 
 though at the time he paid them he had no trust moneys in his 
 hands.([f\ 
 
 Even a specific remuneration given by the testator to his trustees for 
 their services in the trust is no reason for excluding them from the 
 usual allowance for ex^yenses. A testator bequeathed to his acting trus- 
 tees for the time being the yearly sum of five guineas apiece for the 
 care and trouble they might have in the execution of the trust. The 
 testator's estates consisted in part of about fifty houses in London, thirty- 
 four of which were let to weekly tenants. The trustees employed a 
 person to collect the rents, and Sir John Leach said, " The annuity was 
 given to them as a recompense for the care and trouble which would 
 attend the due execution of the ofl&ce ; and if it was consistent with the 
 due execution of the office to ^employ a collector, they were ^^r^^-. 
 entitled to the annuity. A provident owner might well employ L ' J 
 a collector in such a case, and the labour of such a collection could not 
 be imposed on the trustee. "(A) 
 
 {y) Worrall v. Harford, 8 Yes. 8; and see Dawson v, Clarke, 18 Ves. 254; 
 Attorney-General V. Mayor of Norwich, 2 M. & C. 424. 
 
 (z) Ex parte Lovegrove, 3 D. & C. 763 ; and see Ex parte Elsee, 1 Mont. 1 ; Ex 
 parte Bray, 1 Rose, 144. These were cases of assignees who, by 6 G. 4, c. 16, s. 
 106, (the Bankrupt Act then in force,) were to have "all just allowances," but 
 trustees are equally entitled to all just allowances virtute officii. 
 
 (a) Malcolm v. O'Callaghan, 3 M. & C. 52 ; and see Bridge v. Brown, 2 Y. & C. 
 Ch. Ca. 181. [b) Gary, 14. 
 
 (c) Amand v. Bradburne, 2 Ch. Ca. 138 ; Ramsden v. Langlcy, 2 Yern. 536 ; and 
 see Fearns v. Young, 10 Ves. 184. 
 
 {d) Caifrey v. Darby, 6 Yes. 497. {e) Peers v. Ceeley, 15 Beav. 209. 
 
 (/) Johnson v. Telford, 3 Russ. 477. As to the right of the cestui que trust to 
 obtain a taxation as against the solicitor, see Re Dickson, 3 Jur. N. S. 29, and 
 cases there cited. 
 
 (g) Gordon v. Trail, 8 Price, 416. 
 
 (h) Wilkinson v. Wilkinson, 2 S. & S. 237; and see Webb v. Earl of Shaftes- 
 bury, 7 Yes. 480 ; Fountaine v. Pellet, 1 Yesey, juu. 337.
 
 464 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 A regular account of the expenses should invariably be kept ; but 
 where this has not been done the court has ordered a reasonable allow- 
 ance to be made in the gross, at the same time taking care that the 
 remissness and negligence of the trustee in not having kept any account 
 should not meet with any encouragement. Thus in Hethersell v. HalesQ 
 the trustee put in a general claim for 2500^., apparently an average esti- 
 mate of the expenses he had incurred in the trust. '' The court/' says 
 the reporter, " took some time to deliberate what was fit to be allowed in 
 a matter of this nature ; and having considered that the trustee was a 
 friend to the family, and undertook the trust at their great importunity, 
 and that he had incurred the charge of surveying the whole estate, selling 
 and letting the same, looking after tenants, adjusting their accounts, 
 calling in their rents, returning moneys to creditors, and treating with 
 them and stating their debts, and procuring and agreeing with pur- 
 chasers, and for law charges, and for keeping servants and horses, and 
 employing others in journeys to London and elsewhere, and his care 
 there lying from home a long time, the court was of opinion that the 
 trustee might well deserve the whole 2500?., yet would not allow but 
 2000Z., which the trustee was to have." 
 
 As it is a rule that the cestui que trust ought to save the trustee harm- 
 less from all damages relating to the trust, so within the reason of the 
 rule, where the trustee has honestly and fairly, without any possibility 
 of being a gainer, laid down money by which the cestui que trust is dis- 
 charged from a loss, or from a plain and great hazard of it, the trustee 
 ought to be repaid. (^) 
 
 *The expenses incurred by a trustee in the execution of his 
 L ^^^J office are treated by the court as a charge or lien upon the estate, 
 and the cestui que trust or his assign cannot compel a conveyance in 
 equity without a previous satisfaction of all the trustee's demands.0 
 
 In Trott V. Dawson(m) Lord Macclesfield said, « Dawson, the assignee 
 of Archdale, cannot be in a better case than Archdale under whom he 
 claims. Wherefore, as Archdale would not have had the assistance of a 
 court of equity without paying for the charge and trouble which Trott 
 had been at in relation to the trust, so, by parity of reason, the defendant 
 Dawson, as claiming under Archdale, must do the same thing which it 
 was incumbent upon Archdale to have done." 
 
 The decision in this case was reversed in the house of lords ; and 
 hence the inference has been drawn that a trustee gives credit for the 
 expenses, not to the estate, but to i\\e person of the cestui que trust, and 
 that the assign is not liable for the trustee's expenses incurred in the 
 time of the assignor. The case is reported much more at length in 
 Brown, (?() and the circumstances were briefly these: — An eighth of the 
 proprietorship of the province of Carolina had been conveyed in 1684 to 
 
 (i) 2 Ch. Rep. 158. 
 
 {k) Balsh V. Hybam, 2 P. W. 455, per Lord King ; and see Attorney-General v. 
 Mayor of Norwich, 2 M. & C. 424: Attorney-General v. Pearson, 2 Coll. 581; 
 Quarrell v. Beckford, 1 Mad. 282 ; Sandon v. Hooper, 6 Beav. 246 ; Bright v. 
 North, 2 Phill. 21G. 
 
 (I) See Ex parte James, 1 D. & C. 272 ; Hill v. Magan, 2 Moll. 460. 
 
 (m) 1 P. W. TSO. [n) 7 B. P. C. 266.
 
 OF ALLOWANCES TO TRUSTEES. 465 
 
 Amy in trust for four persons. The whole equitable interest had become 
 subsequently vested in John Archdale, who settled it upon Dawson and 
 his wife. Dawson filed a bill against the co-heirs of Amy for a convey- 
 ance ; and the question between the parties was, whether the expenses 
 incurred by Amy ought or not to be first paid and satisfied. On a refer- 
 ■ ence to the master it was found that Amy had been active in the trust 
 from 1684 to 1697, and during that time had expended various sums of 
 money ; that the proprietors of the province had ordered Amy one grant 
 of 12,000 acres ; had created him landgrave, with a further grant of 
 48,000 acres ; and had also presented him with one of the eight pro- 
 prietorships, which had fallen in by the death of a proprietor without 
 heirs. It was entered on the books of the proprietors in 1698, that the 
 grants *had been made to Amy for his services generally, and [-;i:-p-i-i 
 'particularly for Ids faitliful d{sc]iar(je of the trust ; that Amy L -I 
 had agreed to convey the estate on request to W. J., who was to succeed 
 him in the office, and by whom subsequently the trust was exclusively 
 managed. It did not appear that the first two grants had even been 
 perfected, or had become beneficial; but the grant of the proprietorship 
 had been accepted and acted upon. It was under these circumstances 
 that Lord Macclesfield directed a conveyance of the estate, subject to the 
 payment of Amy's expenses ; but on appeal to the house of lords the 
 decree below was reversed. The question therefore appears to have 
 been^ not whether Amy's expenses, due from the assignor, were to be 
 regarded as a lien upon the estate, but whether the grants made to Amy 
 had not been accepted by him as a full compensation. 
 
 But although the trustees themselves are creditors upon the trust fund 
 for the amount of their expenses, the persons who are employed by them 
 as solicitors, surveyors, &c., have no such lien. And the law is so settled, 
 notwithstanding an express declaration by the settlor that the trustee 
 shall in the first place jiciy the expenses of the trust, and though the trus- 
 tees themselves be charged to be insolvent. In every deed is imjylied a 
 direction to pay the costs and expenses, and expressio eorum qua' tacite 
 insimt nihil operatur. It would be a mischievous principle to hold, that 
 every person wuth whom the trustees had incurred a just and fair demand 
 might sue the trustees, and come for an account of the whole administra- 
 tion. (o) And, vice versa, the agents of the trustees are accountable to 
 their employers only, the trustees, and not to the cestuis que t}-ust.Q)^ 
 But under the special provisions of the Solicitors Act(<^) the cestuis que 
 trust may at the discretion of the court obtain an order to tax the bill 
 of the solicitor employed by the trustees, (;•) and generally the cestuis 
 ^que trust may proceed against the agents where they have not pcQ.^-i 
 confined themselves to the duties of agents, but by accepting a L "J 
 
 (o) Worrall v. Harford, 8 Ves. 4, see 8 ; Ilfill v. Laver, 1 Hare, oYl ; FeofiFees of 
 Heriot's Hospital v. Ross, 12 CI. & Fin. 507 ; Francis v. Francis, 5 De Gex, Mac. & 
 Gor. 108. 
 
 (p) Myler V. Fitzpatrick, 6 Mad. 360, per Sir J. Leach; and see Langford v. 
 Mahony; 2 Conn. & Laws. 317; Lockwood v. Abdy, 14 Sim. 441; Keane v. 
 Robarts, 4 Mad. 350. (q) G & 7 Vict. cap. 73, s. 39. 
 
 (r) As to the circumstances under which the court will direct taxation at the 
 instance of a ceiiui que trust see Re Dickson, 3 Jur. N. S. and cases there referred to.
 
 466 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 delegation of the whole trust,(s) or by fraudulently mixing themselves 
 up with a breach of trust,(^) have themselves become trustees by con- 
 struction of law. 
 
 If a person be trustee of different estates for the same cestuis que trust, 
 under the same investment, and he incur expenses on account of one 
 estate from which he has no funds, it is presumed that he may apply to 
 their discharge any money which may have come to his hands from any 
 other of the estates. But he would not be justified in mixing up any 
 claims under one instrument of trust with those under another.(M) 
 
 If the trust estate fail, it seems the trustee may then file a bill against 
 the cestui que trust on whose hehalf and at whose request he acted, to 
 recover from him personally the amount of the money expended. (^') 
 
 In a late case it was held that a trustee who, in that character, has 
 incurred a legal liability, may call upon the cestui que trust in equity to 
 indemnify the trustee against the liability, even before an actual loss has 
 accrued. Mr. Gillan mortgaged a hundred shares in the Western Dis- 
 trict Banking Company to Mr. Phene, to secure 1000^. The shares 
 were transferred in the books of the company into the name of Mr. 
 Phene. The 1000/. was afterwards paid off, and Mr. Gillan required 
 Mr. Phene to re-transfer the shares ; but before this could be done a 
 creditor of the company recovered judgment against the public officer of 
 the company, and notice was given to Mr. Phene that unless he paid 
 3?. 10s. per share by a day named, execution would be levied upon him 
 for the full amount of the judgment. Upon that 3Ir. Phene filed a bill 
 P^_ „„ against Mr. Gillan, praying the reimbursement of certain *ex- 
 L J penses, and an indemnity against the liability. The court 
 observed, " The effect of the payment of the debt, combined with the 
 subsequent transactions was, in my opinion, to make the plaintiff a mere 
 trustee for the defendant, and I cannot doubt but that a trustee, circum- 
 stanced as the plaintiff was, has a right to be indemnified by his cestui 
 que trust, against all liabilities which he may properly have incm-red in 
 that character. His liability in this court is that of his cestui que trust. 
 I might take the analogous case of a trustee of leasehold property under 
 covenants for the benefit of a cestui que trust. It is quite clear, I appre- 
 hend, that if such trustee were obliged to pay money for the benefit of 
 his cestui que trust , he would have a right of indemnity over. It was 
 contended, on behalf of the defendant, that in the case of a trustee and 
 cestxd que trust, the trustee cannot proceed in this court until he has 
 been actually damaged, although, if he had paid anything, he might 
 have come to be indemnified. I do not accede to that proposition. If 
 it was a suhsistinr/ liability, the trustee is not bound to be out of funds 
 for a moment. In this case a judgment was recovered against a public 
 officer of the company. Prima facie, the plaintiff is liable as a share- 
 
 (s) Myler v. Fitzpatrick, 6 Mad, 360 ; and see Pollard v. Downes, 1 Eq. Ca. 
 Ab. 6. 
 
 (0 See Fyler v. Fjler, 3 Beav. 550 ; Alleyne v. Darcy, 4 Ir. Ch. Re. 199 ; Port- 
 lock V. Gardner, 1 Hare, 60G ; and Ex parte W'oodin, 3 Mont. D. & D. 399 ; Attorney- 
 General V. Corporation of Leicester, 7 Beav. 176; Pannell v. Hurley, 2 Coll. 241 ; 
 Bodenham v. Hoskyns, 2 De Gex, Mac. & Gor. 903. 
 
 (m) Price v. Loaden, 21 Beav. 508. {v) Balsh v. Hyham, 2 P. W. 453.
 
 now A TRUSTEE MAY OBTAIN HIS DISCHARGE. 4G7 
 
 holder, and prima facie he has a right to be indemnified in the way 
 suggested." (i6') 
 
 It will be observed that the claim to reimbursement from the nMal 
 que trust has been admitted, where the trustee has acted at the request 
 or on behalf of the cestui que trust, he being competent; but in the 
 absence of such request, or of an implied assent, or where the cestuis 
 que trust are under disability as infants, the trustee can have no right 
 against the cestuis que trust on the ground of Vi^y personal obligation, (.<•) 
 though the trustee would have the fullest lien upon the trust fund, and 
 no benefit from it would be allowed to the cestui que trust until the trus- 
 tees were properly indemnified. But *of course the trustee can- r^^Q^-i 
 not claim this indemnity in respect of an advance that was not L J 
 properly made in the execution of the trustee's duty. 
 
 Questions occasionally arise respecting the proper fund for payment of 
 expenses. In one case(y) Sir John Leach decided that a provision made 
 in a will for payment of debts and funeral and testamentary expenses 
 out of a particular fund, did not make that fund primarily liable for 
 costs. But in a subsequent case Lord Langdale, master of the rolls, 
 appears to have arrived at a different conclusion. (2) Again, a trust in 
 a will of real and personal estate to pay out of the personal estate the 
 expenses of probate and <' the execution of the trusts of the will," does 
 not authorize the trustee to apply the fund in payment of any otlier 
 expenses than what would be payable by the execiitors in that character, 
 and therefore does not authorize the application of the personal estate in 
 payment of the expenses incurred in the execution of trusts declared of 
 the testator's real estate. (a) 
 
 ♦CHAPTER XXL [*565] 
 
 HOW A TRUSTEE MAY OBTAIN HIS DISCHARGE FROM THE OFFICE. 
 
 We shall conclude the subject of the office of trustee by considering 
 in what manner he may divest himself of that character. 
 
 The only modes by which he can accomplish this object are the fol- 
 lowing : First — He may have the universal consent of all the parties 
 interested ; or. Secondly— He may retire by virtue of a special power 
 contained in the instrument creating the trust; or, Thirdly— He may 
 obtain his release by application to the court. 
 
 I. As no cestui que trust who concurs in a breach of duty by the trus- 
 tee can afterwards call him to account for the mischievous consequences 
 
 (w) Phene v. Gillan, 5 Hare, 3, pp. 9, 13. 
 
 (x) Thus in Collinson v. Lister, 20 Beav. 308, where the advances were not 
 proper the M. R. said, " No assets exists out of which the executor could seek for 
 payment, aud, of course, it could not be contended that the plaintiffs (who were 
 the cestuis que trust,) were liable to repay the advances." 
 
 (y) Brown v. Groombridge, 4 Mad. 495. (z) Wilson V. Heaton, 11 Beav. 492. 
 
 (a) Lord Brougham v. Lord Poulett, 19 Beav. 119.
 
 468 LEW IN ON THE LAAV OF TRUSTS, ETC. 
 
 of the act, it follows, that where all the cestuis que trust lend their joint 
 sanction to the trustee's dismissal, they are precluded from ever visiting 
 him with damages on the ground of delegation of his ofl&ce.(o) 
 
 But the trustee must first satisfy himself that all the cestuis que trust 
 are parties, for even in the case of a numerous body of creditors the 
 consent of the majority is no estoppel as against the rest.(i) 
 
 And the cestuis que trust who join must of course be sui juris, not 
 femes covert or infants, who have no legal capacity to consent. But a 
 /erne covert is considered to be sui juris as to her separate estate where 
 there is no restraint against anticipation.(c) 
 
 *If the parties interested in the trust fund be not all in exist- 
 L "^ J ence, as where the limitation of the property is to children un- 
 born ,Ht is clear, that as the trustee cannot have the sanction of all the 
 parties interested, he cannot with safety be discharged from the trust. 
 
 II. A trustee may retire by virtue of a special power contained in the 
 original instrument. 
 
 The person who creates the trust may mould it in whatever form he 
 pleases, and may therefore provide, that on the occurrence of certain 
 events and the fulfilment of certain conditions, the original trustee may 
 retire, and a new trustee be substituted. 
 
 The form of power most commonly in use is, that in case any trustee 
 shall happen to die, or be abroad for twelve calendar months, or be de- 
 sirous of being discharged from^ or refuse, decline, or become incapable 
 to act in the trusts, it shall be lawful for the cestui que trust to whom the 
 power may be given, or, as the proviso is frequently worded, for the sur- 
 vivino; or continuino; trustee, or the executors or administrators of the 
 survivor, by deed or writiug, to nominate some other person to be a trus- 
 tee ; and the power then proceeds to declare that the trust estate shall 
 forthwith be vested jointly in the persons who are in future to compose 
 the body of trustees ; and that the new or substituted trustee shall, 
 either before or after the trust estate shall have been so vested, be capa- 
 ble of exercising all the same powers as if he had been originally named. 
 
 As it has been made a question how far a trustee appointed by the 
 court can exercise the discretionary powers of the original trustees, it 
 would be proper to extend the common form by adding, that the powers 
 of the settlement shall be exercised by "every trustee, whether appointed 
 under the present power, or by the Court of Chancery, or other compe- 
 tent authority." It has also been found useful in practice, where the 
 power of appointment is given to the trustee, to limit it to " the surviv- 
 ing, or continuing, or other trustee. "((Z) 
 
 r-^rp--, *The words commonly inserted, which expressly confer all 
 L -■ powers on the new trustees before the estate has actually been 
 conveyed, show that a doubt has been felt by the profession, whether in 
 the absence of these words the powers could be exercised until after con- 
 veyance, and the late vice-chancellor of England, in a case where the 
 words referred to did not occur, but there was simply a power of uomi- 
 
 (a) Wilkinson v. Parry, 4 Russ. 276, per Sir J. Leach. 
 
 (h) See supra, 46-1, note {n). (c) See infra, c. 25, s. 3. 
 
 {d) Sec Lord Camovs v. Best, 19 Beav. 414.
 
 HOW A TRUSTEE MAY OBTAIN HIS DISCHARGE. 469 
 
 nation and no direction for a conveyance, expressed his opinion to be that 
 the person to be appointed was not invested with the character of trustee 
 until he had both been nominated to the office by the donee of the power, 
 and the trust property had also been duly conveyed or assigned. (e] <' The 
 settlor meant,'^ observed the vice-chancellor, " that the person to be nom- 
 inated should be a trustee just as the others were. If he be nominated 
 and no conveyance executed, and all the others die, how is he to execute 
 any trust, for he has no estate. "(/) 
 
 However in a more recent case before the present master of the rolls,(^) 
 A. and B. were appointed trustees of a settlement, and after a lapse of 
 eighteen years A. disclaimed, and B. was desirous of retiring, and the donee 
 of the power nominated C. in the place of A., and D. in the place of B., 
 and B. professed to assign the trust fund (consisting of a share of 3000/. 
 in the hands of trustees of another settlement) to C. and 1). who filed 
 their bill without their cesfiiis que trust to have the trust fund paid to 
 them. It was objected against the validity of the appointment that A. 
 had acted, and that consequently B. could not alone pass the trust fund, 
 and that therefore the appointment of trustees was incomplete. The 
 master of the rolls, however, held that, whether A. had acted or not, C. 
 and I), were duly appointed, and entitled to call for payment of the trust 
 fund. His honor said in his judgment, "I am of opinion that the ap- 
 pointment of new trustees, and the conveyance of the trust property to 
 them constitute two distinct and separate matters, and that the second, 
 the transfer, can only take place where the first or the appointment is 
 complete. Were it is not so, in some cases, probably in all, no valid 
 appointment of *new trustees could finally be made." And his r^xpo-i 
 honor subsequently pointed out various difficulties which would L -• 
 arise from holding that transfer of the trust fund was necessary to per- 
 fect the appointment. The particular facts of the case at the rolls sug- 
 gest the observation that the subject-matter settled was a mere equitable 
 interest in a fund, incapable of assignment strictly so to speak ; but un- 
 questionably the doctrine of the late vice-chancellor of England must be 
 considered as shaken ; and the views of the master of the rolls seem to 
 derive some support from the practice of the court allowing persons nom- 
 inated trustees to present petitions for a transfer of the trust fund, or a 
 conveyance or vesting order of the trust estate. (//) Looking to the deci- 
 sion only of the master of the rolls, it may be regarded as still an open 
 question, whether a newly appointed trustee ought not, before proceed- 
 ing to exercise a power of sale of real estate (the case before the vice- 
 chancellor of England,) to procure a conveyance to himself, but accord- 
 ing to the views of the master of the rolls this would clearly be unne- 
 cessary. 
 
 Should the trust estate consist of mo7iei/ in the funds, or other property 
 transferable in the books of any company, then by one and the same deed 
 the donee of the power may nominate the new trustee, and the old and 
 new trustee may execute a declaration of trust of the stock or other 
 
 (e) Warburton v. Sandys, 14 Sim. 622. (./") lb. 631. 
 
 (g) Noble v. Meymott, 14 Beav. 471. 
 
 (//) la re Law, 4 Beav. 509 ; see In re Odell, Hayes Ir. Excli. Rep. 257.
 
 470 LEWIN ox THE LAW OF TRUSTS, ETC. 
 
 property intended to be transferred, and after the execution of the trust 
 the stock may be transferred into their joint names accordingly. (/) If 
 the trust estate consist of chattels real, or other chattels personal not 
 transferable in the books of any company, the parties cannot effectuate 
 their object but at the trouble and expense of two deeds. By the first, 
 the old trustee will assign the chattel interest to A., and then A., by in- 
 dorsement, will reassign it to the old and new trustee as joint tenants. (A-) 
 If the trust estate be oi n freehold nature, and by the terms of the instru- 
 ment of trust the whole legal estate is to be vested in the trustees, there 
 r*p;rQn ^^^^^^ ^^ general, no other ^machinery than a simple conveyance 
 L -I under the Statute of Uses ; for the old trustee may release the 
 lands to the joint use of himself and the new trustee, and the statute 
 will operate to transfer the possession. (?) But in settlements ichich invest 
 the trustees with poicers, the established form of the proviso has intro- 
 duced the necessity of resorting to the use of two deeds. The language 
 of the clause is, that " the trust estate shall be conveyed in such manner 
 that the same may be vested in the old and new trustee to the uses, trusts, 
 intents, and purposes of the settlement." Now, the meaning obviously 
 is, that, as by the settlement an estate to preserve contingent remainders, 
 or, it may be, some other interest, was limited to the trustees who are 
 armed with the powers, should either of the trustees die, &c., and a new 
 trustee be appointed, such estate ^)t<r autre vie, or other interest, should 
 be transferred to the old and new trustee jointly. But the practitioner, 
 ex major i cauteld has attached to the words the possible, however im- 
 probable construction, that on the appointment of a new trustee the whole 
 settlement should be re-opened, and that the fee-simple should ah integro 
 be conveyed to the old and new trustee to all the same uses, &c., as were 
 declared by the original deed. For accomplishing this object it is ne- 
 cessary that two instruments should be prepared. By the first, (?>i) the 
 new trustee will be nominated by the donee of the power, the old uses of 
 the settlement will be absolutely revoked (the proviso, it is said, imply- 
 ing an authority for that purpose,) and the use will be appointed to A. 
 and his heirs, and the estate and interest vested in the old trustee will 
 be assured unto and to the use of A. and his heirs, by way of convey- 
 ance. When this has been effected by one deed, and A. has become 
 seised, or is supposed to have become seised, of the inheritance in fee- 
 simple, he may then, by lease and release, which may be indorsed on the 
 former release,(;i) reconvey the premises to the old and new trustee to 
 the uses, trusts, &e., of the settlement, in the same manner as if the new 
 trustee had been originally appointed. Thus, if the real intention was, 
 r*'S7m ^^^^ *^° ^^^^ appointment of a new trustee a *seisin to serve the uses 
 ■- J should be vested in the old and new trustee jointly, then a power 
 of revocation was implied, and the direction has been complied with. If 
 the settlor had no such intention, then there was no implied power of 
 
 {i) See Appendix No. IV. 
 
 [k) See Appendix No. VII. If the person to assign is not to be one of the trus- 
 tees, as where the assignment is by an executor or administrator of a surviving 
 trustee, of course only one deed is necessary. 
 
 {I) See Append. No. VI. (m) See Appendix No. VII. 
 
 [n) See Appendix No. VIII.
 
 now A TRUSTEE MAT OBTAIN HIS DISCHAIIGE. ^71 
 
 revocation, and tlie affected exercise of it is a nullity, and tlie conveyance 
 hy the old trustee, and the reconveyance to the old and new trustee has 
 served only to pass the actual and vested interest. 
 
 It must of course be carefully ascertained by the trustee that the cir- 
 cumstances under which he retires from the trust are precisely those 
 which the settlor contemplated in the terms of the proviso; for if the 
 case be not warranted by the power, the trustee who resigns will be made 
 responsible for all the mischievous consequences, just as if he had dele- 
 gated the oflBce. 
 
 It is somewhat surprising, considering the frequency of this power, 
 how few questions until lately arose upon its construction. 
 
 In Sharp v. Sharp, (o) heard in the Court of Queen's Bench the terms 
 in which the power was expressed were as follows : — " In case eitlier of 
 the trustees the said A. and B. shall happen to die, or desire to be dis- 
 charged from, or neglect, or refuse, or become incapable to act in, the 
 trusts, it shall be lawful for the survivors or survivor of the trustees so 
 acting in the trusts, or the executors or administrators of the last surviv- 
 ing trustee, by any writing, &c., to nominate a new trustee." Neither 
 of the trustees being willing to act in the trust, they executed a convey- 
 ance to two other persons intended to be new trustees ; and the question 
 was raised, whether the power of appointment had, under the circum- 
 stances, been effectually exercised, and it was determined in the negative. 
 Lord Tenterden said, "By the word 'survivor' I understand merely the 
 trustee ' continuing to act / for it seems to have been throughout the 
 intention of the testator, that, in case of the death or incapacity or refusal 
 of some one of the trustees, the remaining trustee who had been named 
 by him, and who had been the object of his confidence, should have the 
 power of associating with himself some other person in the execution 
 *of the trust : but it would be giving a much larger construction p-y;^-i 
 to these words than they fairly import if we were to say, that the 1- ^ -• 
 trustees, in the event of the whole class declining to act, might nominate 
 such other persons as they might think fit to perform their duties." 
 Mr. Justice Bayley observed, "The word ' either' is not uselessly intro- 
 duced : it is in effect a proviso that if ciiher of the trustees named in 
 the will should refuse to act, still that the testator should have the bene- 
 fit of the judgment of the other, who would act in concurrence with such 
 other individ'ual as he might nominate. The testator may have had good 
 reason for confining the power to the care of one trustee, for he may have 
 had special confidence in the trustees named by himself, and so long as 
 either of those persons acted in the trust he might think his property 
 safe. But if we were to read these words as if they were ' both or either,' 
 the case would be different. If both the persons should decline to act, 
 the testator might naturally object to their delegating their trust to other 
 persons, and might then have thought it better that his property should 
 be left to the care of a court of equity. And I apprehend that under 
 the words of this power the testator meant by the word • actiug' to de- 
 signate those who had taken upon themselves to perform some of the 
 
 (o) 2 B. & A. 405 ; Pearce v. Pearce, 22 Breav. 248.
 
 472 LEW IX ON THE LAW OF TRUSTS, ETC. 
 
 trusts mentioned in the will, and that he did not contemplate one who in 
 limine refused to act. And it seems to me, that a person who does so 
 refuse cannot be considered as acting in any of the trusts. Then the 
 word 'survivor' must mean the < continuing' trustee, as contradistin- 
 guished both from those who might refuse to act and those who might 
 be desirous to discontinue acting." 
 
 In this case hotli the trustees disclaimed ', and it was decided that, 
 under such circumstances, they had no power to appoint others. But 
 supposing one trustee disclaims, may not the continuing trustee appoint 
 another, or do the words of the power, "if any trustee shall refuse or 
 decline" apply, not to the case of a disclaimer, but only to a refusal 
 after having acted? Although the point decided in Sharp v. Sharp 
 was as stated above, yet from the language of the judges it appears, that, 
 had only one trustee disclaimed, the other might have exercised the 
 P^. -. power; and such it is presumed is clearly the *rule when there 
 L "^-1 is nothing to narrow the meaning of the words ''refusing or de- 
 clining." There generally follows in the power a direction that the 
 estate " vested in the trustee so refusing or declining" shall be trans- 
 ferred to the new trustee ; and hence it has been argued, that as no 
 estate vests in a disclaiming trustee, the power did not contemplate such 
 a case. However, there seems to be but little weight in the argument ; 
 for when it is said that the words " if any trustee shall refuse or decline" 
 apply to disclaimer, it is not meant that they do not also apply to a sub- 
 sequent refusal. At all events, therefore, the direction for the transfer 
 of the estate is not nugatory, (p) 
 
 It has sometimes been doubted whether the words "refusing" or "de- 
 clining" do not refer exclusively to disclaimer, and have no application 
 to the ease of a trustee refusing after having accepted the trust to act 
 any longer in it. This proposition is also untenable, as it excludes the 
 application of the power to the very case which was mainly contemp- 
 lated. Q)p) 
 
 In a late case a testator appointed three trustees with the usual power 
 of appointment of new trustees, and two trustees having died in the tes- 
 tator's lifetime, the late vice-chancellor of England adverting to the 
 question whether the surviving trustee could appoint new trustees, ob- 
 served that "it was very questionable at the least whether the survivor 
 could appoint, for it seemed to be clear that the case which the testator 
 contemplated was that of a vacancy in the trusteeship occasioned by 
 death, refusing to act, &c., which was capable of being supplied by a 
 continuing or acting trustee which was not the case that had hap- 
 pened, ((^) and his honour in a subsequent case decided to that effect ;(?A 
 but this was a narrow construction of the power, and it has since been 
 ruled that a trustee who has survived the testator may appoint new 
 trustees in the place of those who pre-deceased the testator, (x) 
 
 (p) See In re Roche, 1 Conn. & Laws. 306 ; Walsh v. Gladstone, 14 Sim. 2 ; 
 Mitchell V. Nixon, 1 Ir. Eq. Rep. 155 ; Crook v. Ingoldsby, 2 Ir. Eq. Rep. 375. 
 
 (pp) See Re Armstrong's Settlement, 5 Weekly Rep. 448, and Re Woodgate's 
 Settlement, ib., in reference to the question there adverted to. 
 
 (?) W^alsh V. Gladstone, 14 Sim. 2. (r) Winter v. Rudge, 15 Sim. 596. 
 
 (.?} Re Hadley, 5 De Gex & Sm. 67 ; and see Noble v. Mevmott, 14 Beav. 477.
 
 now A TRUSTEE MAY OBTAIN HIS DISCHARGE. 473 
 
 *In Morris v. Preston(<) tlie proviso was, that "in case of the p^.„„-. 
 death of any or either of the two trustees during the lives of the L J 
 husband and wife or the life of the survivor, the husband and wife or 
 the survivor should, with the consent of the surviving co-trustee or co- 
 trustees^ nominate and appoint a new trustee or trustees, and that upon 
 such nomination or appointment the surviving co-trustee should convey 
 and assign the trust estates in such manner as that the surviving trustee 
 and trustees, and such person or persons so to be nominated and ap- 
 pointed, should be jointly interested in the said trusts in the same man- 
 ner as such surviving trustee and the person so dying would have been 
 in case he were living." Both the trustees died, and the wife, who sur- 
 vived her husband, executed an appointment of two new trustees in the 
 place of the deceased trustees. A purchaser took the objection, that, as 
 the proviso clearly contemplated the case of one trustee surviving, an 
 appointment of new trustees after the decease of both the original trus- 
 tees was not warranted by the power. The purchaser abandoned the 
 objection at the hearing without argument — a circumstance much to be 
 regretted, as a judgment from Lord Eldon would have thrown great light 
 upon the subject. However, the case as it stands, has been said by the 
 lord chancellor of Ireland to be of great authority, viz., in favour of 
 the validity of the appointment. («) 
 
 In another case, where two trustees had been appointed by the settle- 
 ment, and the power was, that " if either of the trustees should die, or 
 reside beyond seas, or become incapable or unjfit to act in the trusts, it 
 should be lawful for the tenants for life, together with the surviving or 
 co7itinuing or acting trustee for the time being, to nominate a new trus- 
 tee, and that the trust estate should thereupon be vested in the newly ap- 
 pointed trustee, jointly ivith the surviving or continuing trustee," upon 
 the trusts of the settlement; and one trustee died and the other became 
 bankrupt; on the suggestion by counsel that there was no surviving or 
 continuing trustee, and therefore the power was gone, the lord chancel- 
 lor of Ireland observed, ''That happens in many cases without the power 
 beina: *aifected. The construction is not so straitlaced as all r-^-^,-, 
 
 that.^'(^^) . ^''^^ 
 
 It was ruled in the same case, that a trustee who became bankrupt was 
 " unfit" within the words of the power. But if the power be worded 
 " in case the trustee shall become incapable to act," without the addition 
 of the words ''or unfit," a bankrupt trustee is not within the description, 
 for by "incapable" is meant personal incapacity and not pecuniary em- 
 barrassment, (w) If a power of appointing new trustees be given to a 
 surviving trustee, and he goes abroad for permanent residence, he may 
 be removed from the office as not in a situation to discharge the duties 
 properly, but if not removed he may execute the power of appointing a 
 new trustee, though, of course, he must do so in this as in every other 
 case, with impartiality as regards the interests of the cestuis que trust.(xj 
 
 (t) 1 Ves. 547. (u) lu re Roche, 1 Coiia. & Laws. 308. 
 
 (y) In re Roche, 1 Conn. & Laws. 30G; 2 Drur. & War. 287. 
 (w) Re Wutts's Settlement, 9 Hare, 106 ; Turner v. Maule, 15 Jur. VGl. 
 (x) O'Reilly v. Alderson, 8 Hare, 101.
 
 474 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 The court held in one case that a trustee who went to reside perma- 
 nently abroad, came within the description of a trustee ^^ incapable to 
 act,' [y) but this seems scarcely in harmony with correct principle, resi- 
 dence abroad being rather a question of unfitness than incapacity, and 
 it cannot be reconciled with another decision. (2) 
 
 If there be two trustees of a settlement, and both be anxious to retire 
 from the trust at one and the same time, they would not be justified in 
 putting the property under the control of a single trustee appointed in 
 their joint places. («) 
 
 And, vice versa, a single trustee should he wish to retire, cannot, 
 unless expressly authorized by the power, appoint more than a single 
 trustee in his place; for though, in the substitution of more trustees than 
 one, he would be chargeable rather with too much than too little caution, 
 yet, he ought not to clog the estate with any unnecessary machinery. 
 The idea of the settlor may have been, that by increasing the number of 
 the trustees the vigilance of each, individually, would be diminished. 
 r*'7f^n ''A great number/' observed Lord ^Mansfield, in a case where 
 L -I justices had appointed five overseers instead of four, " may not 
 do business better than a smaller, and it would be attended with more 
 expense. "(6) 
 
 In a late case, a testator appointed two trustees, and directed " that if 
 the trustees thereby appointed or to be appointed, as thereinafter men- 
 tioned, should die, &c., it should be lawful for the surviving or continuing 
 trustee or trustees for the time being, or the executors or administrators 
 of the last surviving or continuing trustee, to appoint one or more per- 
 son or persons to be a trustee or trustees in the room of the trustee or 
 trustees so dying, &c., and thereupon the trust estates should be vested 
 in the new trustee or trustees, jointly with the surviving or continuing 
 trustee or trustees, or solely, as occasion should require." The surviving 
 trustee appointed tioo trustees in the room of the deceased trustee, and 
 the vice-chancellor expressed his opinion that such a case was immedi- 
 ately contemplated by the proviso. (c) 
 
 In another case, where the proviso was in the common form, and on 
 the death of all three trustees, the donee of the power appointed four 
 new trustees, the court held that such appointment could not be support- 
 ed. One of the four trustees so appointed declined to act, but this 
 circumstance did not vary the legal question. (tZ) 
 
 Where however the court itself is appointing new trustees it does not 
 at the present day, though doubts appear to have been formerly felt on 
 the poiut,(c) consider itself bound to fill up only the precise number 
 mentioned in the instrument of trust. It has appointed three trus- 
 tees where the testator originally appointed two only,(/) two where the 
 
 (y) Mennard v. Welford, 1 Sm. & Gif. 426. 
 
 (z) Withington v. Withington, 16 Sim. 104. 
 
 (a) Hulme v. Hulme, 2 M. & K. 682. (6) Rex v. Lexdale, 1 Burr. 448. 
 
 (c) D'Almaine v. Anderson, V. C. Feb. 1, 1841, MS. 
 
 {d) Ex parte Davis, 2 Y. & C. Ch. Ca. 468 ; S. C. 3 Mont. D. & De G. 304. 
 
 (e) Devey v. Peace, Taml. 78. 
 
 (/) Birch v. Cropper, 2 De Gex & Sm. 255.
 
 HOW A TRUSTEE MAY OBTAIN HIS DISCHARGE. 475 
 
 testator originally appointed one,(^) four where he originally appointed 
 three. (/i) 
 
 In another case, there were originally two trustees only, and the 
 settlement declared that " in case the said A. B. and C. D. or any of 
 them or any new trustee or trustees to be appointed under that provision, 
 in their or either of their places should depart this life, &c., it should be 
 lawful (in the event therein ^mentioned) for the acting trustee ^^.^^^-. 
 or trustees for the time being, or the last acting trustee or the L J 
 executors or administrators of the last acting trustee to nominate any 
 person or jjersons to supply the place of the trustee or trustees respective- 
 ly so dying, &c., and that immediately after such appointment the trust 
 estate, &c., should be conveyed, assigned, and transferred, so and in such 
 manner as the same might vest in such new trustee or trustees jointli/, 
 with the surviving or continuing trustee or trustees, or solely as the case 
 might require, and in his, her or their executors, administrators, or 
 assigns, upon the trusts thereinbefore mentioned, and that every new 
 trustee should have and might exercise the same powers and privileges 
 whatsoever as if be had been appointed a trustee by those presents, and 
 as if his name had been inserted in those presents instead of the name 
 of the trustee or trustees, in or to whose place such new trustee or 
 trustees respectively should come or succeed;" and a power of re- 
 imbursement was given " to any one or more of the trustees," and 
 also '' to allow to his and their co-trustee or co-trustees," the expenses 
 which he or they might incur ; and the two trustees retired, and three 
 trustees were appointed in their place, and Vice-Chancellor Knight 
 Bruce observed, " Generally, it is true that there ought to be an adher- 
 ence to the original number of trustees where new trustees are substituted. 
 This is conformable to the presumed intention of the parties, where 
 nothing to the contrary appears, though in the abstract it may be difficult 
 to suggest much inconvenience from appointing three trustees to act in 
 the place of two who are dead. If, however, the instrument is so worded 
 as to authorize an appointment of three trustees to succeed two, of course 
 such an intention appearing must have effect given to it," and his honor, 
 considering that the instrument contained expressions which could not 
 be interpreted consistently with the notion that two trustees only could 
 be substituted, held the appointment to be valid, (i) 
 
 In general the new trustees should be persons amenable to the juris- 
 diction of the court, but where the personal property of a lady was 
 settled on her marriage with a foreigner, whose ^domicile was in r^c-y-i 
 America at the time of the marriage, the subsequent appointment L J 
 of three Americans to be trustees was decided to be justifiable. (/.•) But 
 though the parties who have a power of appointment may exercise it in 
 this way, the court in substituting trustees by its own jurisdiction has 
 refused to appoint new trustees who are out of the jurisdiction. (/) 
 
 Should one of two trustees be desirous of retiring, of course he cannot 
 do so without the substitution of another in his place,(m) and the power 
 
 (ff) Plenty v. West, 16 Bear. 356. (/') lb. 
 
 (i) Meiucrtzhagen v. Davis, 1 Coll. 335. {^) lb. 
 
 (l) Guibert's Trust, 10 Jur. 852. (m) Adams v. Payuter, 1 Coll. 532.
 
 476 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 of appointmeut of new trustees would not authorize tlie appointment of 
 the continuing trustee as sole administrator of the trust ;(«) for this 
 would, in effect, amount to a relinquishment of the trust without the 
 appointment of any successor.(o) 
 
 A surviving trustee cannot be advised, (though it has been sometimes 
 done,) to vest the trust estate in himself, and a new trustee appointed 
 in the place of one of several deceased trustees, but should refuse to part 
 with the property unless the original number of trustees be restored. 
 Still less could the representative of the last surviving trustee be advised 
 to vest the property in a single new trustee nominated in the place of 
 one only of the deceased trustees. And where a settlement appoints 
 three trustees for sale, with a power of appointment of new trustees in 
 the usual form, and two die, and the survivor retires in favour of a single 
 new trustee appointed in his place, it is conceived that as the original 
 settlement constituted three trustees to execute the trust, the donee of 
 the power ought not to have executed the power partially, but to have 
 restored the original number, and in such a case a purchaser would object 
 to the title on a sale by the new trustee. (p) The strongest ground for 
 supporting the sale would be, thaL probably many titles depend on the 
 validity of such an execution of the power, and in a similar case where 
 forty-three years had elapsed since the exercise of the power, the ap- 
 pointment was supported. (5') 
 
 _g^ *If A. and B. be trustees, and A. dies, and then B. retires and 
 L -I appoints C. a trustee in his oion place, and afterwards the donee 
 of the power for the time being appoints C. and D. in the place of A. 
 and B. the two new trustees are properly appointed and can sign receipts ; 
 for cither the original appointment of C. was good, and the subsequent 
 appointment of D. filled up the number, or the original appointment of 
 C. was invalid, and then the appointment of both C. and D. by the donee 
 of the power was effectual. (r) 
 
 It sometimes happens where the power of appointment of new trustees 
 is limited to the ^^ surviving or coji^mwiny trustee," that one trustee 
 dies, and then the other wishing to retire proposes to appoint two new 
 trustees at the same time in the place of himself and the deceased trus- 
 tee. But the practice of the pi'ofession is understood to be not to consi- 
 der such an appointment valid within the words of the power. The 
 surviving trustee ought first to appoint a person in the room of the 
 deceased trustee, and then the persons© substituted may, ?k&ih.e continuing 
 trustee, appoint a new trustee in the place of the trustee desirous of retiring. 
 
 So if there be two trustees, and a power of appointing new trustees 
 be given to " the surviving or continuing trustees or trustee," they 
 cannot both retire at the same time, but there must be two separate 
 appointments. (s) 
 
 (n) Wilkinson v. Parry, 4 Russ. 272. 
 
 (0) Attoraey-General v. Pearson, 3 Mer. 412, per Lord Eldon. • 
 
 [p) See Earl of Lonsdale v. Beckett, 4 De Gex & Sm. 73. 
 
 {q) Re Pool Bathursl's Estate, 2 Sm. & Gif. 169; and see In re Fagg's Trust. 
 19 L. J. 175 ; Nicholson v. Smith, 3 Jur. N. S. 313. 
 
 (r) Miller v. Priddon, 1 De Gex, Mac. & Gor. 335. 
 
 [s] Stones v. Rowton, 17 Beav. 303 ; Nicholson v. Smith, 26 L. J. N. S. (Ch.) 
 312; 3 Jur. N. S. 313.
 
 nOV\- A TRUSTEE MAY OBTAIN HIS DISCHAllGE. 477 
 
 But where four trustees were appointed originally, and the power was 
 to the surviving or continuing or otlicr trustee to appoint, it was held 
 that the survivor of the four trustees who desired himself to be dis- 
 charged, could, by force of the words " other trustee'^ appoint four new 
 trustees in the place of himself and the three others. (<) 
 
 Where persons are nominated as trustees in a will, and a power of 
 appointing new trustees is given to the " acting" trustees, should all 
 the trustees disclaim, the power of appointment is gone, and the hiatus 
 in the trust can only be filled up by the court. It has, occasionally, 
 been suggested that the trustees, instead of disclaiming, should accept 
 the trust to the *extent of exercising the power only, and should, r^.^>rf^-\ 
 by virtue of it, appoint new trustees ; but it is conceived that L J 
 trustees who availed themselves of the office for the purpose only of 
 introducing other parties into the trust would be rather '< refusing" than 
 " acting" trustees, and the exercise of the power, under such circumstan- 
 ces, would be fraudulent and nugatory, and might involve the outgoing 
 trustees in serious liabilities. 
 
 On a change of trustees it is not uncommonly proposed to appoint one 
 of the cestuis que trust to that office, but such an arrangement is evi- 
 dently irregular, as each cestui que trust has a right to insist that the 
 administration of the property should be confided to the care of some 
 third person whose interest would not tend to bias him from the line of 
 his duty. Should a bill be filed for the removal of the cestui que trust, 
 and the substitution of some indiff'erent person as trustee, the costs would 
 probably be thrown upon the parties who had improperly filled up the 
 trust.fw) But it is presumed that this rule affects the parties to the 
 trust only, and that if a cestui que trust who has been appointed trustee 
 sell real estate under a power of sale, he may sign a receipt, and that the 
 purchaser is not bound to look to the proper exercise of the discretion in 
 such a case. Cestuis que trust are not absolutely incapacitated from 
 being trustees, as the court under special circumstances appoints a catui 
 que trust a trustee. (v) The question is merely one of relative fitness. 
 A fortiori, \hQ circumstance of near relationship to the cestui que trust 
 creates no absolute disqualification for the office of trustee, though the 
 present master of the rolls objects to appoint relatives to be trustees. (u-) 
 
 Where estates of a diflerent description, or held under a difi'erent title, 
 or limited upon difi'erent trusts, have been vested in the same trustees by 
 the settlor, and there is a single power of appointment of new trustees in 
 the usual form, it is conceived there is no authority for afterwards divid- 
 ing the trust by the appointment of one set of new trustees to execute 
 the trusts of *the one estate, and a distinct set of new trustees to r*cc.A-| 
 execute the trusts of the other, (.r) L J 
 
 The proviso is sometimes of such a directory character as to authorize 
 the appointment of new trustees upon one event, without the intention of 
 confining the exercise of the power to the occurrence of that event exclu- 
 
 (() Lord Camoj's v. Rest, 19 Beav. 414. 
 
 (m) See Passinghatu v. Sherborne, 9 Beav. 424. 
 
 (i-) Ex parte Clutton, 1 7 Jur. 988. (w) Wilding v. Bolder, 21 Beav. 222. 
 
 (x) See Cole v. Wade, 16 Ves. 27; In re Anderson, I Lloyd & Goold. 27. 
 
 March, 1858.— 31
 
 478 
 
 LEWIN OX THE LAW OF TRUSTS, ETC. 
 
 sively. Thus, wtere six trustees were empowered, ichen reduced to three, 
 to fill up the number, and all died but one, it was held competent to the 
 sui-vivor to execute the appointment.(?/) So, where the original number 
 of trustees was twenty-five, and they were directed, tchen rediiced to fifteen, 
 to proceed to nominate others, it was determined that, when seventeen re- 
 mained, the survivors viiglit elect, but when reduced to only fifteen they 
 were compellahle to elect. (z) It should be observed that these were cases 
 of charitable trusts, in which a degree of latitude is allowed. 
 
 If a tenant for life has a power of appointing new trustees and sells 
 his life interest, it seems the power is gone, for it is unreasonable that he 
 should nominate a trustee to the prejudice of the person to whom he has 
 aliened the beneficial interest. If he has only mortgaged his life interest 
 he may not be able to appoint a trustee behind the back of the mortgagee, 
 but there can be no objection to such an exercise of the power, if it be 
 done with the consent of the mortgagee. 
 
 Advantage cannot be taken of the power for the purposes of fraud ; 
 and therefore if a trustee refuse, when solicited to commit a breach of 
 duty himself, but declare his willingness to resign in favour of some other 
 person less scrupulous, the court, acting upon the principle of qui facit 
 per alium facit per se, would hold the trustee who retires responsible for 
 the misbehaviour of the trustee he has substituted, (a) And upon principle 
 it would seem that a bond of indemnity given to the retiring trustee 
 would be a very doubtful security against the consequences of the act ; 
 r*-oT-i foJ^ the bond itself if found *to have been infected with fraud 
 ['^"■'■J could afl"ord no just ground of action.(Z>) However, in a recent 
 case, it was held by the Court of Exchequer that the common law courts 
 have no such cognisance of breaches of trust as to treat a bond of indem- 
 nity against an act amounting in equity to a breach of trust as necessarily 
 containing anything illegal. {c^ 
 
 If a new trustee be irregularly appointed, the old trustees may exercise 
 the powers given to them by the instrument of trust, notwithstanding 
 the mere ineffectual attempt. ((Z) But if a trustee retire upon the appoint- 
 ment of a new trustee, and from want of the proper formalities being 
 observed the appointment be not legal, the old trustee cannot lie by for 
 a long interval and then exercise a power by mere concurrence in a deed, 
 without having bona fide exercised his own judgment and discretion. In 
 Lancashire v. Lancashire(e) A. and B. were trustees of a will, and in 
 1831, A. professed to appoint C in the place of B., but the appointment 
 was invalid. In 1842, a deed of settlement was prepared, by which, after 
 reciting a doubt whether B. had been discharged, and that in order to 
 
 [y) Attorney-General V. Floyer, 2 Vern. 748 ; and see Attorney-General v. Bishop 
 of Lichfield, 5 Ves. 825 ; but see Foley v. Wontner, 2 Jac. & Walk. 245. 
 
 (z) Doe V. Roe, 1 Anst. 86. 
 
 (a) Norton v. Pritchard, Reg. Lib. B. 1844, T71: Sugden v. Crossland, 3 Sm. & 
 Gif. 192, 
 
 (6) See Shep. Touch. 132, 371. 
 
 (c) Warwick v. Richardson, 10 Mees. & Wels. 284. 
 
 (d) Warburton v. Sandys, 14 Sim. 622; Miller v. Priddon, 1 De Gex, Mac. & 
 Gor. 335. 
 
 (e) 2 PhiU. 657 ; 1 De G. k Sm. 288.
 
 HOW A TRUSTEE MAY OBTAIN HIS DISCHARGE. 479 
 
 obviate sucli doubt, B. had concurred in tlie propriety of the settlement; 
 A., B., and C, in pursuance of a power contained in the will, conveyed 
 the trust estate upon certain trusts within the purview of the power. 
 B., who since 1831 had taken no part in the trust, at first refused to 
 execute the deed, but afterwards complied upon an indemnity. Lord 
 Cottenham held that the concurrence of B. in the deed was not, under 
 the circumstances, an execution of the power, for B. had withdrawn from 
 the trust in fact, and C had not been duly substituted ; and that the 
 mere formal execution of a deed by B. with an indemnity, was not such 
 an exercise of discretion as the will had contemplated. We may observe, 
 that if B., on ascertaining that the substitution of C. was nugatory, had 
 actively resumed his duties, and hona fide exercised the power, his lord- 
 ship's decision would no doubt have been different. 
 
 If the administration of the trust be in the hands of the *court, r^^-n^-. 
 the donee of the power cannot exercise it without having first L "'-' 
 obtained the court's approbation of the person proposed. (/) However, 
 if the old trustees do appoint without the leave of the court, the act is 
 not to be considered as altogether void in itself, but it puts the burden 
 upon them of proving, and that by the strictest evidence, that what was 
 done was perfectly right ; and also saddles them with the costs of that 
 proof. If the act was not proper, of course the appointment cannot 
 stand. ((7) 
 
 On the appointment of a new trustee under a power, the costs fall 
 properly on the corpus of the trust estate, for the benefit enures not onl}- 
 to the tenant for life, but to all the cestuis que trust. This rule may be 
 deduced from the practice of the court, for on the appointment of new 
 trustees by the court, the costs are always thrown upon the estate. 
 Where there is no available fund the costs are often paid by the tenant 
 for life. 
 
 III. The trustee may, as a general rule, although the contrary appears 
 to have been at one time supposed, (/<) get himself discharged from the 
 office by the substitution of a new trustee in his place on application to 
 the court. A power of appointment of new trustees is very frequently 
 omitted in settlements, and were there no means by which a trustee could 
 ever denude himself of that character, it would operate as a great dis- 
 couragement to mankind to undertake so arduous a task. 
 
 Where no new trustee can be found willing to act, the trustee's right 
 to be discharged must depend upon the circumstances of the case. " It 
 is a mistake," observed Lord St. Leonards, " to suppose that a trustee 
 who is entitled to be discharged is bound to show to the court that another 
 person is ready to accept the office ] the court will at once refer it r:j:CQq-i 
 to the *master to appoint a new trustee. But if no one can be L J 
 
 (/) "Webb V. Earl of Shaftesbury, 7 Ves. 480; Attorney-General v. Clack, 1 
 Beav. 467; Peatfield v. Benn, 17 Beav. 522 ; Middleton v. Reay, 7 Hare, 106; Ken- 
 nedy v. Turnley, 6 Jr. Eq. Rep. 399 ; Palmer's Settlement, cor. Vice-Chancellor 
 Kin'dersley, April 18, 1857, costs of appointing new trustees ordered to be paid 
 out of the corpus. 
 
 (g) Attorney-General v. Clack, 1 Beav. 473, per Lord Langdale ; and see Cafe 
 v. Bent, 3 Hare, 249. 
 
 {h) Hamilton v. Fry, 2 Moll. 458.
 
 480 
 
 LEWIN ON THE LAW OF TRUSTS, ETC, 
 
 found who will accept the trust, the court may find itself obliged to keep 
 the old trustee before the court, but will take care to protect him in the 
 meantime."^ This was said in a case where the trustee, from the con- 
 duct of the cestui que trust, could claim to be discharged, but if a trustee 
 wish to retire from mere caprice, it is not clear that the court can or will 
 discharge him, unless another trustee can be found in his place. (/c) It 
 is certain that the court cannot divest him of the estate before some one 
 can be found to take it, and even as to the office it is not unreasonable, 
 that if a man once engages to undertake it, he shall not afterwards retire 
 from it without any reason, and so leave the estate without a trustee. 
 But every trustee may, of course, escape from the liabilities of the office 
 by submitting the administration of the trusts to the jurisdiction of the 
 court. (Z) 
 
 The application to the court to be discharged from the trust should in 
 general be made by bill or claim, in order to give the court an opportu- 
 nity of examining into the merits of the case •,[m) but if a suit be already 
 pending, the trustee may then solicit his dismissal by petition or 
 motion. (/A It was formerly not the custom of the court to look through 
 the proceedings, but a reference was ordered to the master. (o) Under 
 the present practice the court, except in cases of special difficulty, usu- 
 ally appoints a trustee without a reference to chambers. 
 
 The costs where the trustee retires from caprice or without sufficient 
 reason must be borne by himself ;(p) but where he retires from neces- 
 sity, or on good and sufficient ground, they will be thrown upon the 
 trust estate, (g-) 
 
 *«If," said Lord Langdale, "a trustee undertakes the per- 
 L "^^ J formance of a trust, he is not entitled, as against the estate he 
 has undertaken to protect, to exercise a mere caprice, and without any 
 assignable reason say that he will no longer continue a trustee. On the 
 other hand, if the trustee finds the trust-estate involved in intricate and 
 complicated questions, which were not and could not have been in con- 
 templation at the time when the trust was undertaken, he has, in conse- 
 quence of that change of circumstances, a right to come to the court to 
 be relieved; and the court will judge whether the circumstances were 
 such as to make it fair for him to decline acting longer upon his own 
 responsibility ;"(/•) and to the same eff"ect, the present master of the rolls 
 observed, "It is quite clear that any circumstances arising in the adminis- 
 tration of the trust, which have altered the nature of his duties, justify 
 
 (i) Courtenay v. Courtenay, 3 Jones & Lat. 533, per Lord St. Leonards; and see 
 Forshaw v. Higginson, 20 Beav. 487. 
 
 (k) Ardill v. Savage, 1 Ir. Eq. Rep. T9. 
 
 (Z) See Forshaw v. Higginson, 20 Beav. 485. 
 
 {m) See Ex parte Anderson, 5 Ves.243 ; In re Fitzgerald, Lloyd & Goold. 22 ; In 
 re Anderson, Id. 29. 
 
 (n) V. Osborne, 6 Yes. 455 ; v. Robarts, 1 J. & W. 251. 
 
 (o) v. Osborne, ubi supra. 
 
 (p) Howard v. Rhodes, 1 Keen. 581 ; Porter v. Watts, 16 Jur. 157 ; Hamilton 
 V. Fry, 2 Moll. 458. 
 
 {q) Greenwood v. "Wakeford, 1 Beav. 581 ; Forshaw v. Higginson, 20 Beav. 486; 
 Courtenay v. Courtenay, 3 Jones & Lat. 529; Gardiner v. Downes, 22 Beav. 395. 
 
 (r) Greenwood v. Wakeford, 1 Beav. 581.
 
 OF THE ESTATE OF THE CESTUI QUE TRUST. 481 
 
 a trustee in leaving it, and entitle him to receive his costs ; but the cir- 
 cumstances must be such as arise out of the administration of the trust, 
 and not those relating to himself individuallj."(s) 
 
 A distinction was taken by Lord Langdale between the case where 
 the same person who accepted the trust comes to be relieved from it, in 
 whom it would be caprice to relinquish the trust without any sufficient 
 reason, and the case where, on that person's death, the trust devolves on 
 his representative by operation of law, and that representative applies to 
 the court. (<) 
 
 In a case, where the settlement contained a power of appointment of 
 new trustees, and the tenant for life having incumbered his life-estate 
 with annuities and other charges, the original trustees were desirous of 
 relieving themselves from the difficulties of their situation by retiring 
 from the trust, and the tenant for life who was the donee of the power 
 could not find any person to undertake the trust, the costs of the suit 
 which the trustees had instituted for their discharge were thrown exclu- 
 sively upon the fund of the tenant for life.{yj 
 
 *CHAPTEK XXII. [*585] 
 
 IN WHAT THE ESTATE OF THE CESTUI QUE TRUST PRIMARILY CONSISTS. 
 
 Having concluded the subject of the estate and office of the trustee, 
 it follows next that we investigate the nature and properties of the estate 
 of the cestui que trust; and in the present chapter we shall inquire in 
 what the estate of the cestui que trust primarily consists, 1. In the simple 
 trust; and 2. In the special trust. 
 
 SECTION I. 
 
 OF THE CESTUI'S QUE TRUST ESTATE IN THE SIMPLE TRUST. 
 
 In the simple trust the equitable ownership is compounded of the 
 pernancy of the profits and the disposition of the estate — t\\QJus hahendi 
 andjMs disponendi.{v^ 
 
 1. The equitable owner is entitled to the pernancy of the profits. 
 
 Thus in a trust of lands the cestui que trust may compel the trustee to 
 put him in possession of the estate ;(w) and if the cestui que trust be 
 ejected from the possession by the trustee, the cestid que trust may 
 
 (s) Forshaw v. Higginson, 20 Beav. 486. 
 
 (t) 1 Beav. 582 ; and see Aldridge v. Westbrooke, 4 Beav. 212. 
 {u) Coventry v. Coventry, 1 Keen, "758. 
 (v) Smith V. Wheeler, 1 Mod. 17, per Pemberton J. 
 
 («•) Brown v. How, Barn. 354; Attorney-General v. Lord Gore, Id. 150, per Lord 
 Hardwicke.
 
 482 LEWIN ON THE LAAV OF TKUSTS, ETC. 
 
 compel the trustee to account not only for the rents actually received, 
 but for the amount reserved, and which but for accidental deficiencies 
 ought to have been paid.(x) At the same time it must be borne in 
 mind that the possession of the cestui que trust is regarded at law as the 
 r*f;ftn *possession of the trustee, to whom he is tenant at will, and in 
 L -I whom the legal "seisin still continues. (?/) But the tenancy of the 
 cestui que trust is not determined until the trustee has demanded posses- 
 ston.{z\ 
 
 The rule which gives the cestui que trust the possession is only appli- 
 cable to the simple trust in the strict sense, for where the cestui que 
 trust is not exclusively interested, but other parties have also a claim, it 
 rests in the discretion of the court whether the actual possession shall 
 remain with the cestui que trust or the trustee, and if possession be given 
 to the cestui que trust, whether he shall not hold it under certain con- 
 ditions and restrictions. 
 
 Thus, in Blake v. Bunbury,(rt) a testator devised all his real estate to 
 trustees in fee, upon trust to convey the same for a term of 500 years 
 (the trusts of which were to raise certain annuities and sums in gross,) 
 and subject thereto to the use of A. for life with remainders over. A. 
 filed a bill, praying to be let into possession. At the hearing of the 
 cause a general account was directed of the testator's estates and of the 
 charges upon them, and the plaintiff further desired that he might be 
 let into immediate possession ; but Lord Thurlow said, " It is impossible 
 for me to let him into possession till I have the accounts before me, and 
 even till the trusts are executed, unless, as. he now offers, he pays into 
 court a sum sufficient to answer all the purposes of the trust. The court, 
 perhaps, has let tenant for life into possession, where it has seen that the 
 best way of performing the trusts would be by letting him into possession, 
 as where an annuity of 100/. a year is charged upon an estate of 5000/. a 
 year; but till the account is taken I do not know but the purposes of 
 the trust may take up the whole and if I was to do it now, perhaps I 
 should only have to resume the estate." The accounts were afterwards 
 taken^ and the plaintiff was let into possession on giving security to the 
 amount of 10,000/. to abide the order of the court as to the annuities 
 and other incumbrances. (6) 
 
 p:}:-Q~-] *In the case of Tidd v. Lister(c) a testator devised and 
 L -I bequeathed all his real and personal estate to trustees upon trust 
 to pay his funeral expenses and debts, to keep the buildings upon the 
 estate insured against fire, to satisfy the premiums upon two policies of 
 insurance on the lives of his two sons, to allow his said sons an annuity 
 of sixty guineas each, and subject thereto upon trust for his daughter 
 for life, with remainders over ; and the personal estate having sufficed to 
 discharge the funeral expenses, debts, and annuities, the daughter, who 
 was then a, feme covert, filed a bill praying to be let into possession upon 
 
 (z) Kaye v. Powel, 1 Yes. Jun. 408. 
 
 (y) Parker v. Carter, 4 Hare, 400 ; Garrard v. Tuck, 8 Com. Bench Re. 231 ; 
 Melling v. Leak, 1 Jur. N. S. 759. 
 
 (2) Doev. Phillips, 10 Q. B. Rep. 130. 
 
 («) 1 Ves. jun. 194. See the case more fully stated, lb. 514, 4 B. C. C. 21. 
 
 (6) S. C. 4 B. C. C. 28. (c) 5 Mad. 429.
 
 OF THE ESTATE OF THE CESTUI QUE TRUST. 483 
 
 securing the amount of the premiums of the policies : but Sir J. Leach 
 said, " It is perfectly plain from the continuing nature of this trust, that 
 the testator intended the actual possession of the trust property should 
 remain with the trustees; and it did appear to me a singular proposition, 
 that if a testator, who gives in the first instance a beneficial interest for life 
 only, thinks fit to place the direction of the property in other hands, 
 which is an obvious means of securing the provident management of that 
 property for the advantage of those who are to take in succession, it 
 should be a principle in a court of equity to disappoint that intention, 
 and to deliver over the estate to the cestui que trust for life, unprotected 
 against that bias which he must naturally have to prefer his own interest 
 to the fair right of those who are to take in remainder. Independently 
 of the purpose of management of the property, a testator may be con- 
 sidered in the case of a female cestui que trust for life as having a fur- 
 ther view to her personal protection in the case of her marriage. There 
 may be cases in which it may be plain from the expressions in the icill, 
 that the testator did not intend the property should remain under the 
 personal management of the trustees. There may be cases in which it 
 may be plain from the nature of the projjerty, that the testator could 
 not mean to exclude the cestui que trtcst for life from the personal possession 
 of the property, as in the case of a family residence. There may be very 
 special cases in which this court would deliver the possession of the pro- 
 perty to the cestui que trust for life although the testator's ^inten- ^^-^^^^ 
 tion appeared to he that it should remain with the trustees ; as, L 1 
 
 where the personal occupation of the trust property was beneficial to the 
 cestui que trust, there the court, by taking means to secure the due protec- 
 tion of the property for the benefit of those in remainder, would in sub- 
 stance be performing the trust according to the intention of the testator." 
 And his honor refused the application. 
 
 In Jenkins v. Milford(fA A. granted certain annuities to B. with 
 powers of distress and entry, and demised an estate for 200 years to C. 
 upon trust, to permit A. to receive the rents until the annuities should 
 be in arrear forty days, and, when in arrear for that period, out of the 
 rents, issues, and profits, or by demising, assigning, or otherwise dis- 
 posing of the term, or by bringing actions against the tenants, or by 
 such other means as should seem meet, to raise the arrears of the annui- 
 ties, and to pay the surplus, if any, to the grantor. The annuities fell 
 in arrear, and the trustee gave notice to the tenants to pay the rents to 
 himself, and appointed a receiver, to whom the rents were afterwards 
 paid. A. discharged the arrears of the annuities, and then applied to 
 the trustee to deliver up the possession, which was refused. The point 
 was submitted to the judgment of the court, and Lord Eldon said, " If 
 you look to the powers of distress and entry, you will not find in either 
 of them that any thing is said respecting the grantor's being permitted 
 to receive the rents, or what is to be done with the surplus. The first 
 trust of the term is to permit the grantor to receive the rents, but that is 
 difi"erent from a trust allowing him to continue in possession. Under this 
 
 {d) 1 J. & W. C29.
 
 484 LEWIN ON THE LAW OF TKUSTS, ETC. 
 
 deed, though the trustee has the legal estate, he has no right to the use 
 of it, until default has been made in payment of the annuities for forty 
 days ; but then he becomes a trustee both for the grantor and the gran- 
 tee — for the latter to raise the arrears, and, to do that, he is entitled to 
 take the rents. If he takes more rents than are sufficient to satisfy the 
 arrears, he is bound to pay the surplus to the grantor ; if he receives 
 enough for that purpose, he is bound to permit and suffer the grantor of 
 the annuities to receive the remainder ; and it is a very different thing 
 r*^QQT ^^^ *the grantor to have that species of possession, and one which 
 L J cannot be disturbed 'without another ejectment being brought. 
 In this ease, therefore, I must either appoint a receiver, or compel the 
 trustee so to authorize the grantor to receive the rents and profits, that 
 he shall have the full benefit of them, short of obliging the trustee to 
 bring an ejectment to remove him. An undertaking on the part of the 
 grantor to deliver up possession when the annuities are in arrear for 
 forty days is not sufficient, for the court may not be able to carry that 
 into execution ; as, for instance, in the case of the grantor's going out 
 of the jurisdiction. If the grantor is made to receive the rents m the 
 name of the trustee, it will not signify what becomes of the grantor, as 
 the trustee may in that case receive them as well as he." And on a 
 subsequent day his lordship observed, " The grantor must receive the 
 rents so as to preserve the possession of the trustee under the term. The 
 rents must be received by him as the agent of the trustee, and the 
 receipts must be given in his name." And the order was that the trus- 
 tee should permit the grantor to receive the rents until the further order 
 of the court ; but such rents were to be received by the grantor in the 
 name of the trustee, and the receipts for the same were to be given 
 accordingly ; and the grantor was to be at liberty to use the name of the 
 trustee in making and supporting distresses for rent, the grantor indem- 
 nifying the trustee from all costs and damages. 
 
 In Baylies v. Baylies(i"] the testator devised his freehold, copyhold, 
 and leasehold estates to two trustees, upon trust, to let and set the same, 
 and receive the rents, issues, and profits thereof, and thereout to pay the 
 expenses of renewals and repairs, and other outgoings ; and subject 
 thereto, to pay the rents, issues, and profits to the testator's widow, for 
 her life, for her sole and separate use, without power of anticipation. 
 The trustees had improperly made an agreement for a lease, and the 
 widow filed a bill to have the lease set aside, and that the plaintiff might 
 be admitted tenant upon giving security for repairs and renewals, &c., 
 r*590"l ^^^ ^^^ ^ receiver. The lease *was set aside, and the court con- 
 L J sidered that the plaintiff, upon giving security for the due per- 
 formance of the objects of the will, ought not to be disturbed in the pos- 
 session, and for that purpose it was referred to the master to appoint a 
 receiver without salary, and if the master should approve of a person 
 proposed by the plaintiff, such person was to be appointed in preference, 
 and possession delivered to him, and the plaintiff was to give security 
 for the payment of the costs of renewals, repairs, and other outgoings, 
 
 (e) 1 Coll. 537; and see Denton v. Denton. 7 Beav. 388 ; Pugh v. Vaiighan, 12 
 Beav. 517. ^ " '
 
 OF THE ESTATE OF TUE CESTUI QUE TRUST. 485 
 
 until her death, or further order; and the receiver was to give the plain- 
 tiff the option of being tenant, reserving to the receiver a power of 
 inspecting the estate and condition of the property. 
 
 In another case, a feme covert was entitled to her separate use for her 
 life, and it was not thought incompatible with the nature of such an 
 estate that she should be put in possession, though the claim was opposed 
 by the trustees. (/) 
 
 The cestui' s que trust right to the possession is recognised, we must 
 remember, in a court of equity only ; for in a court of law the cestui 
 que trust is merely tenant at will.(^) The doctrines advanced by Lord 
 Mansfield in the last century have been long since overruled. It was 
 maintained in his day, that a cestui que trust, a plaintiff in ejectment, 
 could not be nonsuited by a term outstanding in his trustee ;(/(") and that 
 a trustee, a plaintiff in ejectment, could not recover against his own ces- 
 tui que trust. (i\ It was even decided, that, where a term had been 
 created for securing an annuity, and subject thereto upon trust to attend 
 the inheritance, the tenant of the freehold was entitled to recover the 
 possession (provided he claimed subject to the charge,) notwithstanding 
 the legal term was outstanding in a trustee upon trusts that were still 
 unsatisfied. (^•) Such at least were the doctrines in cases oi clear trusts: 
 for where the equity was at all doubtful, the rights *of the par- |-^.„-^ 
 ties were even then referred to the proper tribunal. (?) L J 
 
 " Lord Mansfield," as was observed on one occasion by Lord Redes- 
 dale, "had on his mind prejudices derived from his familiarity with the 
 Scotch law, where law and equity are administered in the same courts, 
 and where the distinction between them which subsists with us is not 
 known, and there are many things in his decisions which show that his 
 mind had received a tinge on that subject not quite consistent with the 
 constitution of England and Ireland in the administration of justice. "(m) 
 
 The law has accordingly since retired into its regular channel, and at 
 the present day we may regard it as established : — First, that a cestui 
 que trust cannot recover in ejectment,(«) unless a surrender to him of the 
 legal estate can be reasonably presumed,((>) (which of course cannot be 
 where the circumstance of the outstanding legal estate appears on the 
 
 (/) Horner v. Wheelwright, 2 Jur. N. S. 367. 
 
 Iff) Garrard v. Tuck, 8 Com. B. Re. 231 ; Melling v. Leak, 1 Jur. N. S. 759 ; and 
 see Geary v. Bearcroft, 0. Bridge. 48G-490 ; Bac. Us. 5 ; Doe v. Jones, 10 B. & Cr. 
 718 ; Doe v. M'Kaeg, 10 B. & Cr. 721. 
 
 (h) Lade v. Halford, B. N. P. 110. The doctrine is said to have originated with 
 Mr. Justice Gundy. 
 
 (i) Armstrong V. Peirse, 3 Burr. 1901. 
 
 (/c) Bristow v. Pegge, 1 T. R. 758, note (a) ; overruled by Doe v. Staple, 2 T. 
 R. 684. 
 
 (I) Doe V. Pott, Doug. 695, per Lord Mansfield; Goodright v. Wells, Id. 747, 
 jper eundem. 
 
 (to) Shannon v. Bradstreet, 1 Sch. & Lef. 6Q. 
 
 [n) Doe V. Staple, ubi supra; see Barnes v. Crow, 4 B. C. C. 10 & 11 ; Doc v. 
 Sybourn, 7 T. R. 3 ; Goodtitle v. Jones, 7 T. R. 45, and folloAving pages ; Doe v. 
 Wroot, 5 East, 138. 
 
 (o) Doe V. Sybourn, 7 T. R. 2 ; see Doe v. Staple, 2 T. R. GOG, Goodtitle v. 
 Jones, 7 T. R. 45, and following pages: Roe v. Reade, 8 T. R. 122.
 
 486 
 
 LEWIN ON THE LAW OF TRUSTS, ETC, 
 
 declaration or special case,)(^j) and the cestui que trust has no alternative 
 but to bring his action in the name of the trustee, who must be indem- 
 nified against the costs :{q) Secondly, that the trustee, as the tenant of 
 the legal estate, may recover in ejectment from his own cestui que trust ;{r) 
 and the cestui que trust has no defence to the action at law, but must 
 have recourse to an injunction in equity. (s) 
 
 The title deeds of an estate form no part of the usufructuary enjoy- 
 ment ; and therefore if an estate be vested in trustees upon strict settle- 
 ment, and the deeds be delivered into their ^possession, thei/ 
 L ^^'"J have a right to the custody of them for the benefit of all parties 
 interested. (<) Should the tenant for life obtain them from the trustees, 
 and thereby be enabled to deal with the estate as absolute owner, the 
 trustees, if it appeared they had acted fraudulently, or under such gross 
 negligence as amounted to constructive fraud, would be held personally 
 responsible for the consequences. (m) In case the title deeds had come 
 originally into the hands of the equitable tenant for life, it is conceived 
 tha't the trustees, as the owners of the legal freehold, could recover them 
 in an action of trover, and it is at least doubtful whether the tenant for 
 life, if there were no special circumstances, could obtain an injunction 
 to restrain it.(v) 
 
 Upon the principle that the cestui que trust is foro conscientice entitled 
 to the pernancy of the profits, he has been invested by the express lan- 
 guage of some statutes, and by the equitable construction of others, 
 with the various privileges conferred by the legislature upon the legal 
 tenants of real estate. 
 
 By the 6th Geo. 3, c. 50, s. 1, " Every man between the age of 21 
 and 60, residing in any county in England, who shall have in his own 
 name or in trust for lihn within the same county 10/. by the year, above 
 reprises, in real estate," &c., &c., is qualified to serve as a juror. 
 
 The election of a coroner is a right vested in the freeholders of the 
 county; and upon principle the privilege of voting must, it is conceived, 
 have belonged originally to the legal freeholder. However, by the 58th 
 Geo. 3, c. 95, s. 2, it was enacted that no person should be allowed to 
 have any vote for or by reason of any trust estate or mortgage unless 
 such trustee or mortgagee should be in actual possession or receipt of 
 the rents and profits, but that the ccst^li que trust or mortgagor in posses- 
 sion should vote for the same estate. It is somewhat singular that upon 
 r*;;qy-i ^^^ re^Q2i\ of the 58 Geo. 3, c. 95, *bythe late Coroners Act,(2r) 
 L "^"^"^J the provision referred to was not re-enacted, and although it is 
 
 {p) Goodtitle v. Jones, '7 T. R. 43 ; see Doe v. Staple, 2 T. R. 696; Roe v.Reade, 
 8 T. R. 122. 
 
 {q) Aunesley V. Simeon, 4 Mad. 390; and see Reade v. Sparkes, 1 Moll. 11; 
 Jeukins v. Milford, 1 J. & W. 635 ; Ex parte Little, 3 Moll. 67. 
 
 (/•) See Roe v. Reade. 8 T. R. 122, 123. (s) Shine v. Gough, 1 B. & B. 445. 
 
 {t) See Duncombe v. Mayer, 8 Ves. 320. [ii) See Evans v. Bicknell, 6 Ves. 174, 
 
 {v) See Denton v. Denton, 7 Beav. 388. Where the estates are legal, the person 
 in possession of the deeds, whether tenant for life or remainderman, may hold 
 them. The rule is, who first takes, he keeps. Foster v. Crabb, 12 Com. Ben. Re. 
 136. 
 
 (w) 7 & 8 Vict. c. 92. Reference to this statute at p. 269, supra, has inadver- 
 tently been omitted.
 
 OF THE ESTATE OF THE CESTUI QUE TRUST. 487 
 
 laid clown in a text book of high legal authority(a;) that tliere can he no 
 doubt that at the common laio an equitable estate of freeliold confers the 
 ■right of voting, the position thus asserted is not only opposed to princi- 
 ple but to the express views of Lord Chancellor Northington,(?/) and in 
 the absence of any more recent statutory enactment the right of voting 
 is, it is conceived, now vested in the trustee. 
 
 By the Game Act, 22 & 23 Car. 2, c. 25, s. 8, persons were disquali- 
 fied from sporting unless they had lands and tenements, &c., &c., of the 
 clear value of 100?. per annum; and it was decided that a cestui que 
 trust of lands to that amount was within the intention of the act. Lord 
 Mansfield observing, that " the privilege was given to property, and the 
 cestui que trust was substantiaUy the owner, and the trustee only nonii- 
 nalJy."(z) By the provisions of the late Game Act no qualification is 
 now necessary, (o) 
 
 By the 6th Vict. c. 18, s. 74, " no trustee of lands or tenements shall 
 in any case have a right to vote in any such election {i. e., for a member 
 of parliament,) for or by reason of any trust estate therein, but the cestui 
 que trust in actual possession, or in the receipt of the rents and profits 
 thereof, though he may receive the same through the hands of the trus- 
 tee, shall and may vote for the same notwithstanding such trust."(i) 
 
 Hitherto we have spoken of the cestid's que trust right to the profits 
 and privileges proceeding from lands. In trusts of chattels personal, as 
 where heirlooms are vested in a trustee upon trust for the persons suc- 
 cessively entitled under the limitations of a strict settlement, the cestui 
 que trust for the time being is equally entitled to the use and possession 
 of the goods during the continuance of his interest; and upon the ground 
 of this right the goods are not forfeited on the bankruptcy *or pKo^n 
 insolvency of the tenant for life, though left in the possession of L J 
 the bankrupt or insolvent by permission of the legal owner, for they are 
 left with him according to the title. (^c'j 
 
 Where the chattels are mere Jwusehold goods, it seems the cestui que 
 trust may use them in his own or in any other person's house, and either 
 alone or promiscuously with other goods, or may let them out to hire ;(<:?) 
 but, where the chattels are heirlooms annexed to a, house, and their con- 
 tinuance in the mansion is evidently a constituent part of the trust, they 
 cannot be let to hire but together with the house itself (e) Of course 
 the use of the chattels by the tenant for life does not enable him to pawn 
 them beyond the extent of his own interest. (/) 
 
 Where the trust fund consists of stock, the cestui que trust is usually 
 put in possession of the dividends by a power of attorney from the trustee 
 to the ccstui's que trust bankers, with a written authority from the trustee 
 to the bankers to credit the cestui que trust with the dividends as and 
 when received, by which arrangement the trustee is spared the trouble 
 of repeated personal attendances at the Bank of England, and the entries 
 
 (z) Jervis on Coroners, by "Welsby, 2nd Ed. p. 24. 
 
 (y) Burgess v. Wheate, 1 Ed. 251. 
 
 (z) Wethercll v. Hall, Cald. 230. (a) 1 & 2 W. 4, c. 32. 
 
 (b) See the statutory changes on this subject traced, pp. 270, 271, supra. 
 
 (c) See supra, p. 277. {d) Marshall v. Blew, 2 Atk. 217. 
 (e) Cadogan v. Kennet, Cowp. 432. (/) Hoare v. Parker, 2 T. R. 376.
 
 488 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 in the books of the private bankers are sufficient evidence of the receipt. 
 In cases where the cestui que trust is tenant for life, this course seems 
 free from objection; but where his interest is one which may determine 
 in his life-time some risk is incurred of the power of attorney and autho- 
 rity being acted upon by the bankers after the determination of the 
 cestui' s que trust estate; and it is conceived that the trustee would be 
 liable to the other cestuis que trust for any misappropriation thus taking 
 place, though after his own death. Of course the trustee will be careful 
 to see that the power of attorney extends only to the receipt of the divi- 
 dends, and not to the sale of the stock itself; otherwise, if the bankers 
 sell out the stock and the proceeds be misapplied, the trustee will of 
 course be answerable. (^) 
 
 |-^p.qr-i *2. The cestui que trust has jus disponencli, that is, may call 
 ■- -I upon the trustees to execute conveyances of the estate as the 
 cestui que trust directs. (A) If the trustee refuse to comply, and the 
 cestui que trust file a bill to compel him, the trustee will be visited with 
 the costs, (<) unless there was some reasonable ground for his refusal,(A-) 
 or he acted bo7ia fide under the advice of counsel,(A and the trustee will 
 have to pay the costs, though the cestui que trust, instead of filing a hill, 
 might have enforced a conveyance by the summary process of a pcti- 
 tion.{in'^ But a trustee has a right to be satisfied by the fullest evidence 
 that the party requiring the conveyance is the exclusive cestui que 
 trust.(ii'^ Of course a cestui que trust cannot call for the conveyance of 
 a larger legal estate than he has equitable : thus a tenant in tail of the 
 trust cannot call for a conveyance of the legal fee simple. (o) And Lord 
 Eldon was of opinion that a cestui que trust could not require the trustee 
 to divest himself from time to time of different parcels of the trust estate ; 
 for the trustee had a right to say, " If you mean to divest me of my 
 trust, divest me of it altogether, and then make your conveyances as you 
 think proper."(p) And a trustee, like a mortgagee, cannot be called 
 upon to convey the estate by any other words or description than that 
 by which the conveyance was made to himself.^j) 
 
 r*5f)n ^■^'^ ^ conveyance by trustees the word "grant" used' fre- 
 L -1 quently to be omitted, as supposed, though erroneously,(r) to 
 
 (g) See Sadler v. Lee, 6 Beav. 324. 
 
 (A) Payne v. Barker, Sir 0. Bridgm. Rep. 24. 
 
 (i) Jones v. Lewis, 1 Cox, 199; Willis v. Hiscox, 4 M. & Cr. 197; Tbornby v. 
 Yeats, 1 Y. & C. Cb. Ca. 438 ; Penfold v. Boucber, 4 Hare, 271 ; and see Campbell 
 V. Home, 1 Y. & C. Cb. Ca. GG4. 
 
 (k) Goodson v. Ellisson, 3 Russ. 583 ; Poole v. Pass, 1 Beav. 600. 
 
 (l) Angier V. Stannard, 3 M. & K. 56G ; and see Devey v. Tboruton, 9' Hare, 232 ; 
 Field V. Donougbmore, 1 Dru. & War. 234. 
 
 (to) Watts V. Turner, 1 R. & M. 634. (n) Holford v. Pbipps, 3 Beav. 434. 
 
 (o) Saunders v. Neville, 2 Vern. 428. But though this point may have been 
 mooted in the case and ruled as reported, yet the question in the cause was a 
 different one, viz., whether under the circumstances the plaintiff was entitled to 
 call for a conveyance of the legal estate even to him, and "the heirs of his body." 
 See note by Raithby, correcting the text from the Reg. Book. 
 
 (p) Goodson V. Ellisson, 3 Russ. 594 ; and see Smith v. Snow, 3 Mad. 10. But 
 if the cestuis que trust of a fund as tenant for life and remainderman assign part of 
 the fund for valuable consideration, it is conceived that the trustee cannot refuse 
 to transfer that part to the assignee. (q) Goodson v. Ellisson, ubi supra. 
 
 (r) Co. Litt. 384 a ; the Yorkshire Registry Acts, however, 6 Anne, c. 35, and 8
 
 OF THE ESTATE OF THE CESTUI QUE TRUST. 489 
 
 contain a warranty ; or the trustees were made '^ by way of conveyance, 
 and not by way of warranty," to " grant;" or the conveyance was quali- 
 fied by the insertion of the words " according to their estate and interest 
 as such trustees." All doubt on the subject is now removed by the 4th 
 section of the 8 & 9 Vict. c. 106, which enacts that the word " grant" 
 shall not imply any covenant in law except so far as the same may, by 
 force of any act of parliament, imply a covenant. 
 
 A trustee to bar dower is or is not called upon to join in a conveyance, 
 according to the circumstances of the case. The rule is understood to 
 be, that where a power of appointment is exercised besides the common 
 law conveyance, his joining is dispensed with ; but where, no power 
 being exercised, the fee cannot be passed without his concurrence, he 
 is made a party, (s) 
 
 In general there are no intermediate steps of the equitable interest, so 
 that if A. be trustee for B., who is trustee for C, A. holds in trust for 
 C, and must convey the estate as C. directs.(<) But if any special con- 
 fidence or discretionary power be reposed in B., which imposes the 
 necessity of his taking the legal estate, he may then call upon the ori- 
 ginal trustee to execute a transfer to himself (w) 
 
 Where trustees hold a fund upon such trusts as a person by an instru- 
 ment to be executed in a particular manner may appoint, they must be 
 careful in transferring it to the appointees to see that all the formalities 
 attending the power have been duly observed, for if the execution of it 
 be not regular, the trustees, except in those cases where courts of equity 
 aid a defective execution, will be personally liable for the fund to the 
 parties claiming in default of the power, (zj) 
 
 ^SECTION 11. [*597] 
 
 OP THE cestui' S QUE TRUST ESTATE IN THE SPECIAL TRUST. 
 
 This may be said to be. The right to enforce in equity the specific 
 execution of the settlor's intention to the extent of that cestui' s que trust 
 particular interest. The other parties entitled may express a desire that 
 the trust should be differently administered ; but if such a divergence 
 from the donor's will would prejudice or injuriously affect the rights of 
 any one cestui que trust, that cestui que trust may compel the trustees 
 to adhere strictly and literally to the line of duty prescribed to them.(»') 
 
 If there be only one cestui que trust, or there be several cestuis que 
 
 G. 2, c. 6, give the force of covenants for title to the Avords " grant, bargain, and 
 sell." 
 
 (s) See 1 Su|r. Pow. 245, et seq. 
 
 {t) Head v. Lord Teynhara, 1 Cox, 57; and see \. Walford, 4 Russ. 372. 
 
 (m) Wetherell v. Wilson, 1 Keen, 86 ; Cooper v. Thornton, 3 B. C. C. 96, 180 ; 
 Woods V. Woods, 1 M. & C. 409 ; Angier v. Stannard, 3 M. & K. 571 ; Onslow v. 
 
 Wallis, 10 Sim. 483, 1 Mac. & Gor. 506; v. Walford, 4 Russ. 372; Pool v. 
 
 Sharp, 1 Beav. 600. 
 
 {v) Hopkins v. Myall, 2 R. & M. 86 ; Cocker v. Quayle, 1 R. & M. 535 ; Reid v. 
 Thompson, 2 Ir. Ch. Re. 26. 
 
 (w) See Deeth v. Hale, 2 Moll. 317.
 
 490 
 
 LEW IX ON THE LAW OF TRUSTS, ETC. 
 
 trust and all of one mind (iu eacli case sui juris,) the specific execution 
 may be stayed, and the special trust will then acquire the character of a 
 simple trust ; for whatever modifications of the estate the settlor may 
 have contemplated, through whatever channel he may have originally 
 intended his bounty to flow, the cesfuis que trust, as the persons to be 
 eventually benefited, are in equity, from the creation of the trust, and 
 before the trustees have acted in the execution of it, the absolute bene- 
 ficial proprietors. Thus if a fund be given to trustees upon trust to 
 accumulate until A. attains twenty-four, and then to transfer the gross 
 amount to him, A. on attaining twenty-one may, as the party exclusively 
 interested, call for the immediate payment.(a;) So if a legacy be be- 
 queathed to trustees upon trust to purchase an annuity, the intended 
 annuitant, if sui juris, may claim the legacy.(3/) So if a fund be vested 
 in trustees in trust for the personal support, clothing, and maintenance 
 of A., an adult, A. is exclusively entitled to the benefit *of the 
 L J fund, and if he take the benefit of the Insolvent Act it passes to 
 his assignees in insolvency, (ri) 
 
 In Pearson v. Lane,(a) before Sir W. Grant, a conveyance had been 
 made to trustees upon trust to sell^ and with the proceeds to purchase 
 other lands to be settled on the daughters of W. J. as tenants in common 
 in tail, with remainder to them in fee. The daughters levied a fine of 
 the laiids to he sold to the uses and upon the trusts of their respective 
 marriage settlements. It was doubted whether the entail had been 
 effectually barred ; but Sir W. Grant said, " It is clear, if the estate had 
 been sold, and another estate purchased, the daughters would have been 
 tenants in tail, with immediate remainders to themselves in fee. It is 
 true in the lands to be sold they had no interest, legal or equitable, 
 expressly limited to them : but the equitable interest in those lands must 
 have resided somewhere : the trustees themselves could not be the bene- 
 ficial owners; and if they were mere trustees, there must have been some 
 cestuis que trust. In order to ascertain wJio they are, a court of equity 
 inquires for whose benefit the trust was created, and determines that 
 those who are the objects of the trust have the interest in the thing 
 which is the subject of it. Where money is given to be laid out in 
 land, which is to be conveyed to A., though there is no gift of the 
 money to him, yet in equity it is his, and he may elect not to have it 
 laid out : so, on the other hand, where land is given upon trust to sell, 
 and pay the produce to A., though no interest in the land is expressly 
 given to him, in equity he is the owner, and the trustee must convey as 
 he shall direct : if there are also other purposes for which it is to be sold, 
 still he is entitled to the surplus of the price, as the equitable owner sub- 
 ject to those purposes ; and if he provides for them, he may keep the 
 estate unsold. The daughters electing to keep this estate, they acquired 
 the fee, and it was discharged of every trust to which it had been sub- 
 ject." 
 
 (z) Josselyn v. Josselyn, 9 Sim. 63 ; Saunders v. Vautier, 4 Beav. 115 ; Cr. & 
 Ph. 240 ; see Curtis v. Lukin, 5 Beav. 147 ; Rocke v. Rocke, 9 Beav. 66. 
 (y) Dawson v. Hearn, 1 R. & M. 606, and cases there cited, 
 (z) Younghusband v. Gisborue, 1 Coll. 400. (a) 17 Ves. 101.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 491 
 
 But until the cestui que trust, or the joint cestuis que trust, counter- 
 mand the specific execution, the special trust will *proceed ; as r:(.rQQ-. 
 if lands be devised to trustees upon trust to sell, and pay the L J 
 proceeds to A., the property will remain personal estate in A. until he 
 discharge the character impressed upon it by electing to take it as 
 land.(6) 
 
 As an incident to the beneficial enjoyment of his interest by the cestui 
 que trust, he has a right to call upon the trustee for accurate information 
 as to the state of the trust. (cj Thus in a trust for sale for payment of 
 debts, the party entitled, subject to the trust, may say to the trustee, what 
 estates have you sold ? what is the amount of the moneys raised ? what 
 debts have been paid ? &c.((7) It is therefore the boundeu duty of the 
 trustee to keep clear and distinct accounts of the property he administers, 
 and he exposes himself to great risks by the omission. (e) It is the Jirst 
 duty, observed Sir T. Plumer, of an accounting party, whether an agent, 
 a trustee, a receiver, or an executor Tfor in this respect they all stand in 
 the same situation) to be constantly ready with his accounts. (/^ 
 
 A legatee, who is a quasi cestui que trust, is entitled to have a satisfactory 
 explanation of the state of the testator's assets, and an inspection of the 
 accounts, but not to require a copy of the accounts at the expense of the 
 estate. (^) 
 
 When it is said that each cestui que trust may compel the specific per- 
 formance of the trust to the extent of his own interest, it is of course 
 understood that the trust is of such a lawful description, that the court 
 will not on grounds of public policy, refuse to recognise its existence. (/i) 
 
 *CHAPTEE XXIII. [*600] 
 
 PROPERTIES OF THE CESTUI' S QUE TRUST ESTATE. 
 
 We shall next enter upon the properties of the cestui' s que trust estate 
 as affected by the acts of the cestui que trust, or by operation of law. 
 
 SECTION I. 
 
 OF ASSIGNMENT. 
 
 An equitable interest may be assigned, though it be a mere possi- 
 
 (b) See Walter v. Maunde, 19 Ves. 429. 
 
 (c) Walker v. Symonds, 3 Sw. 58, per Lord Eldon ; Xewton t. Askew, 11 Beav. 
 152 ; Gray v. Haig, 20 Beav. 219 ; Burrows v. Walls, 5 De Gex, M. & G. 253. 
 
 (d) Clare v. Ormond, Jac. 120, per Lord Eldon. 
 
 (e) Freeman v. Fairlie, 3 Mer. 43, per Lord Eldon. 
 
 (/) Pearso v. Green, 1 J. & W. 140 ; and see Hardwick v. Yernon, 14 Yes. 510 ; 
 White T. Lincoln, 8 Ves. 363 ; Turner v. Corney, 5 Beav. 515. 
 
 (y) Ottley V. Gilby, 8 Beav. 6o2. (A) See supra, ch. vi.
 
 492 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 bility,(«) and either with or without the intervention of the trustee 3(&) 
 and tiie assignee of the cestui que trust may call upon the trustee to con- 
 vey to him, and on his refusal may file a bill to compel a conveyance 
 without making the assignor a party.(f) 
 
 Before the Statute of Frauds,(rZ) the transfer might have been made 
 hj parol; but now, by the ninth section of that act, all grants and assign- 
 ments of any trust or confidence are required to be in icriting, signed hy 
 the party granting or assigning the same, or else are declared utterly 
 void. But though a deed be not absolutely necessary, it is the practice, 
 ex maj'ori cauteld to employ the same species of instrument, and adopt 
 the same form of words, in the transfer of an equitable as in the con- 
 veyance of a legal estate. 
 
 *The power of an equitable tenarit in tail to dispose of the equi- 
 L J table fee has been differently modified at difi"erent periods, and 
 some account of the fluctuation of the law in this respect may serve to 
 illustrate the general principles upon which trusts have been administered. 
 
 At common law all inheritable estates were in fee simple, and it was 
 the statute de donis{e) that first gave rise to entails and expectant re- 
 mainders. x\s this statute was long prior to the introduction of uses, 
 had equity followed the analogy of the common laic only, a trust limited 
 to A. and the heirs of his body, with remainder over, had been construed 
 a fee simple conditional, and the remainder had been void; but the 
 known legal estates of the day, whether parcel of the common law or in- 
 grafted by statute, were copied without distinction into the system of 
 trusts, and, equitable entails indisputably existing, the question in con- 
 stant dispute was, by what process they should be barred. 
 
 In legal entails the only modes of unfettering the estate were by fine 
 or recovery. A fine was by statutory enactment conclusive on all privies, 
 and therefore a cestui que trust, though he had not the freehold, could 
 nevertheless have barred his issue, who were his privies in blood and 
 estate. A recovery had no operation unless the tenant to the prcecipe 
 was seised of the legal freehold in possession, and as the cestui que trust had 
 merely a right, and not a freeliold, it followed he could not by recovery 
 bar either his issue or the remaindermen. There were certainly some 
 doubts upon the law in this particular ; but such was the conclusion 
 drawn from the conflicting cases by Lord Chief Baron Gilbert. '< If 
 cestid que use," he observes, " aliene by fine, that is good, and bars the 
 entry of the feofi"ees(/) after his death by the statute 4 H. 7 ; but if he 
 
 (a) Courthope v. Heyman, Cart. 25; Warmstrey v. Tanfield, 1 Cli. Re. 29; 
 Goring V. Bickerstaff, 1 Ch. Ca. 8 ; Cornbury v. Middleton, ib. 211, per Judges 
 Wyld and Rainsford ; Burgess v. Wheate, 1 Ed. 195, per Sir T. Clarke; 21 Vin. 
 Ab. 516, pi. 1. 
 
 (6) Philips V. Brydges, 3 Ves. 127, per Lord Alvanley. 
 
 (c) Goodson v. Ellisson, 3 Russ. 583. 
 
 \d) 29 Car. 2, c. 3. And by the 8th & 9th Vict. c. 106, s. 3, assignments of 
 chattel interests in land other than copyhold are void at law unless made by deed. 
 
 (e) 13 E. I, St. 1, c. 1. 
 
 (/) By 1 R. 3, c. 1, the cestui que use in possession, though for life only, had 
 authority to pass the legal fee ; but when his right to the possession had deter- 
 mioed, the feoffees might re-enter, and hold to the uses in remainder.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 493 
 
 aliene by recoverjj it does not bind the issue, because be is not tenant to 
 the prcccipe."((/'\ 
 
 The statute of H. 8, merged the use in the possession, and p^i^pA.;,-, 
 *when the trust succeeded to the use, and "appeared in its like- L ^J 
 ness," the effect of a fine and I'ecovery was now to be settled by the court 
 ab integro. It was agreed, as before, that define, concluding allprt'vies, 
 would defeat the claim of the issue ;(A) but, the cestui que frKS^ having no 
 seisin of the freehold, it was long disputed what should be the operation 
 of a recovery. Lord Clarendon, assisted by Sir Harbottle Grimston and 
 Justice Windham, held, that the recovery of a cestui que trust should bar 
 and transfer the trust, as it should an estate at law, if it were uj^on con- 
 sideration, but otherwise Justice Windham doubted of it.(/') But this 
 was merely a resolution, and the nest year an opinion was expressed by 
 Lord Keeper Bridgman, that a recovery should not bar.(Z;) The point 
 afterwards came before the lord keeper a second time,(/) and it was ad- 
 mitted a fine would bar the issue, though not the remainder over, but 
 whether anything would be barred by the cestui' s que trust recovery the 
 court doubted ; for " if tenant in tail at law suffer a recovery, legal ex- 
 ceptions might be taken to it, but if a recovery might be suffered in 
 equity, all those exceptions would be taken away." It was contended in 
 the same case, that if cestui's que trust recovery was not allowed to bar, 
 there would result a perpetuity : but a perpetuity was defined to be 
 '< where, if all who had interest joined, they would not bar or pass the 
 estate ; but if by the concurrence of all having interest the estate might 
 be barred, it was no perpetuity;" and as cestui que trust could certainly 
 estop his issue by fine, it was plain that with the concurrence of the re- 
 mainderman the estate was disposable in fee. At length, Lord Notting- 
 ham, the father of equity, decided that a recovery should bar the issue 
 and all remainders over,(??i) "it being," he said, "a general rule, that 
 any legal conveyance or assurance by a cestui que trust should have the 
 same effect and operation upon the trust as it should have had upon the 
 estate at law in case the trustees had executed their trust : otherwise trustees, 
 *by refusing or not being capable to execute their trust, might p^pno-i 
 hinder the tenant in tail of that liberty which the law gave him L -I 
 to dispose of his estate, which would be manifestly inconvenient, and 
 tend to the introduction of perpetuities. "(jA The stream now flowed in 
 an opposite direction, and it was held by succeeding chancellors, (and 
 Lord Nottingham himself appears to have countenanced the same doc- 
 trine,(o) that cestui que trust might bar his issue and the remainders over 
 by any conveyance, as by bargain and sale, or lease and release,(p) or 
 
 {g) Gilb. Uses, 32. 
 
 \h) Goodrick v. Brown, 1 Ch. Ca. 49 ; Washborn v. Downes, lb. 213. 
 \i) Goodrick v. Brown, 1 Ch. Ca. 49. {k) Digby v. Langworth, 1 Ch. Ca. 68. 
 \l) Washborn v. Downes, 1 Ch. Ca. 213. 
 
 (m) North v. Williams, 2 Ch. Ca. 63 ; North v. Champernoon, lb. T8. 
 {n) North v. Champernoon, 2 Ch. Ca. 78. 
 (0) See North v. Williams, 2 Ch. Ca. 64; S. C. 1 Vern. 14. 
 {p) Carpenter v. Carpenter, 1 Vern. 440; Beverley v. Beverley, 2 Vern. 131 ; 
 Bowater v. Elly, lb. 344 ; and see Legate v. Sewell, 1 P. W. 91. 
 
 March, 1858.— 32
 
 494 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 even by agreemeDt,(5) or will.(r) As a trust was not witliin the statute 
 de donis, there could in strictness be no entail of it, and therefore it was 
 thought that equity, which regarded the Statute of Westminster " as an 
 ambitious act in favour of the lords against the king/'(s) and viewed the 
 trust as its own creature, and to be governed according to conscience, 
 might allow the quasi tenant in tail of a trust to bar the issue and re- 
 mainders over by any expression of intention. (1) At length *one 
 L J consistent principle was established by Lord Hardwicke, that as 
 entails with expectant remainders had gained a footing in trust by ana- 
 logy to the statute, a court of equity was bound to follow the analogy 
 throughout, and therefore a tenant in tail of a trust ought not to be at 
 liberty to bar his issue and the remaindermen except by a conveyance 
 which would have barred them had the entail been of the legal estate. 
 
 The doctrines of equity, as finally settled upon this principle, may be 
 summed up as follows : — 
 
 1. For a good equitable recover!/ there must have been an equitable 
 tenant to the prcccipe, that is, the owner of the first equitable freehold 
 must necessarily have concurred. (<) 
 
 2. An equitable recovery was a bar to equitable only, and not to legal 
 remainders.(«) 
 
 3. An equitable recovery was not vitiated by the circumstance that 
 the equitahle tenant to ih.Q proicipe had also the legal freehold. (i;) 
 
 4. An equitable remainder was well barred, though it was vested in 
 a person who had also the legal fee. (w^ 
 
 At the present day, by the operation of the fines and recoveries act,(a:) 
 
 {q) See Norcliff v. Worsley, 1 Ch. Ca. 236. 
 
 {r) Woolnough v. Woolnough, Pr. Ch. 228 ; Turner v. Gwinn, 1 Vern. 41. 
 
 (s) NorclifF v. Worslej, 1 Ch. Ca. 236, per Lord Nottingham. 
 
 {t) North V. Williams, 2 Ch. Ca. 64, per Lord Nottingham ; Highway v. Banner, 
 1 B. C. C. 586; and see Wykham v. Wykham, 18 Ves. 418. 
 
 (m) Philips V. Brydges, 3 Ves. 128, per Lord Alvanley ; Salvin v. Thornton, Amb. 
 545- S. C. 1 B. C. C. 73, note. 
 
 {v) Philips V. Brydges, 3 Vejs. 126, per Lord Alvanley; Marwood v. Turner, 3 
 P. W. 171 ; Goodrick v. Brown, 2 Ch. Ca. 49 ; S. C. Freem. 180. 
 
 [w) Philips V. Brydges, 3 Ves. 120; Robinson v. Comyns, Rep. t. Talb. 164 ; S. 
 C. 1 Atk. 473. 
 
 {x) 3 & 4 Will. 4, c. 74. 
 
 (I) An estate pur autre vie is also not within the statute de donis, and the quasi 
 tenant in tail, if in possession, may at any time by a simple conveyance, dispose 
 of the absolute interest as against the issue, and the remainderman, and may even 
 bind them in equity by his contract. But if the quasi tenant in tail be in remain- 
 der after a prior estate under the same settlement, he must have the consent of 
 the tenant for life or other precedent freeholder, otherwise though he may bind 
 his issue, he cannot destroy the remainders. W^e may here observe that if lands 
 pur^ autre vie be limited to A. and the heirs of his body, with remainders over, the 
 entirety of the legal estate is vested in A. The issue and remaindermen stand in 
 the light of mere special occupants, that is, they have no ixila jure suo to any pre- 
 sent interest, but merely take the estate by devolution where the owner has made 
 no disposition. A limitation pur autre vie has been commonly referred to the 
 nature of a fee conditional : but the principles of the two estates are not to be 
 confounded. The tenant of a fee conditional can only aliene after issue born, but 
 tenant ^wr a^itre vie may dispose absolutely as above without reference to the fact 
 of there being issue or not. See the whole law upon this subject collected by 
 Lord St. Leonards in Allen v. Allen, 1 Conn, and Laws. 428.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 495 
 
 the equitable tenant in tail may dispose of the equitable fee by the same 
 modes of assurance, and with the same formalities, as if he were tenant 
 in tail of the legal estate. 
 
 To proceed with the subject of assignment of equitable interests — the 
 purchaser, in the transfer of an equity, must, for his security, never dis- 
 pense with the two following precautions. First, he must make inqui- 
 ries of the trustee whether the equity of the vendor has been subjected 
 to any prior incumbrance ; for if the trustee be guilty of misrepresentation, 
 or even of mis-statement from forgetfulness, the ^purchaser may i-*rnrn 
 charge him personally with the amount of the consequent loss.(_y) L J 
 Secondly, upon the execution of the conveyance, the purchaser should 
 give notice of his own equitable title to the trustee, by which means he 
 will gain precedence of all prior incumbrancers who have not been 
 equally diligent, and will prevent his own postponement to subsequent 
 incumbrancers more diligent than himself; and of course the trustee 
 will be personally responsible, if, after such notice, he part with the fund 
 to any person not having a prior claim. (s) 
 
 That a purchaser's notice will secure to him this advantage of priority, 
 has even in choses in action, been only recently settled. In Cooper v. 
 rynmore,(a) Sir T. Plumer, vice-chancellor, decided that mere neglect 
 to give notice would not postpone an incumbrancer, but that such laches 
 ought to be shown as, in a court of equity would amount to fraud ; but 
 in Dearie v. Hall,(i) and Loveridge v. Cooper,(c) nine years after, his 
 honor, when master of the rolls, came to a contrary conclusion, and 
 delivered a very elabox'ate argument that notice ivoulcl gain priority. 
 His honor's judgments were affirmed on appeal, ((?j and the doctrine has 
 been recognized in several subsequent cases. (cA 
 
 The principles upon which Sir T. Plumer proceeded were these : — 
 That " although the cestui que trust could not transfer the legal interest, 
 which must remain with the executors, yet, wherever it was intended to 
 complete the transfer of a chose in action, there was a mode of dealing 
 which a court of equity considered tantamount to possession, viz., notice 
 given to the legal depositary of the fund. By such notice the legal 
 holder was converted into a trustee for the new purchaser, and the cestui 
 que trust was deprived of the power of carrying the same security re- 
 peatedly into the market. This precaution was always taken by diligent 
 incumbrancers, and if it was not taken, there was neglect, and the 
 solicitor who conducted the ^business was responsible for that r:}:^^^-, 
 neglect. To give notice was a matter of no difficulty ; and wherever •- -I 
 persons treating for a c7io.se in action did not give notice to the trustee 
 or executor, they did not perfect their title, they did not do all that was 
 necessary to make the thing belong to them in preference to all other 
 persons, and they became responsible in some respects for the easily 
 
 (y) Burrowes v. Lock, 10 Ves. 470. 
 
 \z) Hodgson V. Hodgson, 2 Keen, "704; Roberts v. Lloyd, 2 Beav. 376; Andrews 
 V. Buusfield, 10 Beav. 511. 
 
 (a) o Russ. 60. (i) lb. 1. (c) 3 Russ. 30. {d) lb. 38, 48. 
 
 (e) Huttou V. Sandys, 1 Younge, 602, see 607 ; Smith v. Smith, 2 Cr. & Mees. 
 231 ; Foster v. Blackstone, 1 M. & K. 297, see 307.
 
 49G 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 forseen consequences of their negligence.(/) It was objected qm ■prior 
 est tempore potior est jure; but it could not be contended that priority 
 in time must decide where the legal estate was outstanding, for the 
 maxim as an equitable rule admitted of exceptions, and gave way when 
 the question did not lie between bare and equal equities. If there ap- 
 peared to be, in respect of any circumstance independent of priority of 
 time, a better title in the puisne purchaser to call for the legal estate 
 than' in the purchaser who preceeded him in date, the case ceased to be 
 a balance of equities, and the preference, which priority of time might 
 otherwise have given, was done away with and counteracted.(^) What 
 title had the prior incumbrancer to call on a court of justice to interpose 
 iu his behalf, in order to obviate the consequences of his own miscon- 
 duct ? He had omitted to perfect his security : a third party had inno- 
 cently advanced his money, and had perfected his security as far as the 
 nature of the subject permitted, and was that court to interfere to post- 
 pone him to the other ? It was said notice did not form part of the 
 necessary conveyance of an equitable interest. If a person meant to rely 
 on the contract of the individual, there was certainly no need of notice, 
 for from the moment of the contract he with whom the party was dealing 
 was pjersonalhj bound ; but if it was meant to go farther, and attach a 
 right upon the thing itself which was the subject of the contract, it was 
 necessary to give notice; and if an individual who contracted with ano- 
 ther did not by giving notice to the trustee divest the vendor or mortga- 
 gor of the possession, "but permitted him to remain the ostensible owner 
 as before, he must take the consequences which might ensue from such 
 a mode of dealing."(/i) 
 
 *In the case of clioses in action these principles are now clearly 
 [^'*507] eg^-aiaiished, and the doctrine holds even against the assignees of 
 a bankrupt or insolvent neglecting to give notice ; as, if A. be entitled 
 to a clwse in action and become an insolvent, and then assign it to a 
 purchaser for valuable consideration without notice of the insolvency, 
 who serves notice on the trustee, he thus gains a priority over the 
 assignees for nothing vests in the assignees but what the insolvent would 
 have passed by an assignment, and if they neglect to complete their title 
 by notice they must be postponed in equity. (?') 
 
 But between clioses in action and real estate there is an observable dis- 
 tinction. In personal estate the purchaser knows the legal title is out- 
 standing in a third person, and is therefore bound to give notice of his 
 incumbrance; but in lands it often happens that the vendor professes 
 to have the legal ownership in himself, whereas it afterwards appears it 
 was really vested in some stranger. If the purchaser be not cognizant 
 of the outstanding legal estate, he cannot give notice of his interest, and 
 therefore cannot be held to have forfeited his right by having neglected 
 a precaution that was impossible. On the other hand, to hold that the 
 
 (/•) SRuss. 12-14. 
 
 {g) See observations of Vice-Chancellor Kindersley in Rice v. Rice, 2 DreAvry, 
 pp. 77, 78. 
 
 {h) 3 Russ. 20-22. 
 
 {i) Re Atkinson, 4 De Gex & Sm. 548 : 2 De Gex, Mac. & Gor. 140,
 
 [*C08] 
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 407 
 
 doctrine of notice does not apply at all to real estate, renders any deal- 
 ings with ec^uitable interests therein extremely dangerous. Thus A. is 
 entitled to an equitable interest, of which the legal estate is in B. upon 
 trusts requiring B. to retain possession of the title-deeds, and not to part 
 with the legal estate. A. conveys his interest to C, who makes no 
 inquiries about incumbrances, and gives no notice to the trustee; A. 
 afterwards, fraudulently concealing the previous assurance, conveys the 
 same interest to D., who makes inquiries of the trustee respecting incum- 
 brances, and gives him notice of his own charge. If, notwithstanding 
 these precautions, D. should be postponed to C, who had priority in 
 point of time, it is clear that no equitable interest can ever be purchased 
 with safety. In Jones v. Jones(^) the point was not involved in the 
 decision, but the vice-chancellor of England assumed that the principles 
 of Dearie v. Hall, and Loveridge v. Cooper, "^^were inapplicable 
 to real estate. In the subsequent case of Wiltshire v. Rabbits,(/) 
 the vice-chancellor of England decided in conformity with the opinion 
 expressed by him in Jones v. Jones ; and the same view has since been 
 adopted by other judges.(m) The result is much to be lamented. 
 
 A second incumbrancer on personal estate who gives notice, hut makes 
 no inquiries as to j^^'ior charges, is preferred to a prior incumbrancer 
 who neglected to give notice. (») This result appears at first open to 
 observation, for an assignment of an equitable interest is perfectly valid, 
 though without notice, as against the assignor, and all persons claiming 
 under him who have no equity to postpone the first assignment. It is 
 unimpeachable unless a subsequent purchaser can set it aside on the 
 ground of fraud against himself; and if he made no inquiry, and there- 
 fore was not defrauded, why should he, labouring under the demerit of 
 making no inquiry, displace the person who had the natural priority. 
 The answer, however, which has been made by Sir James Wigram is as 
 follows :(o) <' If the puisne incumbrancer advances his money bona fde 
 without inquiry, it must be presumed he would equally have advanced 
 it after inquiry, the result of which would have negatived the existence 
 of any prior incumbrance. The injury he sustains, and which gives 
 him priority, is, ' ex post facto.' If, after advancing his money, he is 
 informed that there is a prior incumbrance, he will immediately use dili- 
 gence to get in or secure his property. If, on the other hand, he is not 
 told when he gives the notice that there is a previous incumbrancer, he 
 is led to suppose that his security is good, &c. The notice which, when 
 it is given, has the eflfect of inquiry, is given either at the time the 
 money is advanced or afterwards, and the only distinction between the 
 two cases is a distinction ^between a party who advances money t^qq.-.-i 
 at the time of taking a security, and a party who takes a security L J 
 
 (A-) 8 Sim. pp. 642, 643. (f) H Sim. Y6. 
 
 (m) Wilmot v. Pike, 5 Hare, 14; Bujrden v. Bignold, 2 Y. & C. Ch. Ca. 392 ; 
 Rochard v. Fulton, 1 Ir. Eq. Rep. 131 ; Lee v. HowletJ, 2 Kay & J. 531. As to 
 railway shares, see Dunster v. Glengal, 3 Ir. Ch. Re. 4V. 
 
 (n) Foster v. Blackstone, 1 M. & K. 297 ; Foster v. Cockerell, 9 Bligh, N. S. 376 ; 
 Timson v. Ramsbottom, 2 Kean, 49; and see Etty v. Bridges, 2 Y. & C. Ch. Ca. 
 494; Warburton v. Hill, 1 Kay, 470. 
 
 (o) Meux V. Bell, 1 Hare, 86, 87 ; and see Warburton v. Hill, 1 Kay, 478.
 
 498 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 for an antecedent debt, &c. The credit which the puisne incumbrancer 
 cave to the fund after the notice is as good a consideration as that of any 
 other creditor who takes a security for an antecedent debt." The only 
 portion of the vice-chancellor's argument which seems open to question 
 is the assumption that notice is equivalent to inquiry. It could hardly 
 be contended that a trustee, upon merely receiving notice of an incum- 
 brance, is hound to reply that prior incumbrances have been created. It 
 would, however, be a proper act on his part so to do, and almost a matter 
 of course, should he (as is usual) be requested to acknowledge the 
 receipt of the notice. In a large proportion of cases, therefore, the 
 reasoning of Vice-Chancellor Wigram would be strictly correct ; but, 
 however this may be, the point is now clearly concluded by authority. 
 
 If notice be given to one of several co-trustees it is sufficient as against 
 all subsequent incumbrancers during the lifetime of that trustee, for a 
 prudent incumbrancer is called u^on to make inquiry of all the trustees, 
 and if he did so in the supposed case, he would have come to a know- 
 ledge of the prior charge. Thus, in Smith v. Smith, (p) one Maberley, 
 being indebted to Smith, assigned to him, by way of security, his life- 
 interest in certain funds under his marriage-settlement, and afterwards 
 became bankrupt. The assignee having mentioned his security to one 
 of the trustees before the bankruptcy occurred, the question was, whether 
 after such notice the fund was at the time of the bankruptcy in the 
 power and disposition of the bankrupt, and it was determined in the 
 negative. Lord Lyndhurst, in delivering the judgment of the court, 
 observed, << It was argued that notice to one only of three trustees is 
 insufficient — that it should have been given to each of them, and that, 
 this not having been done, the property remained in the order and dis- 
 position of the bankrupt up to the time of his bankruptcy ; but we are 
 r*n m °^ opinion that notice t» one of the *three trustees was suffi- 
 L J cient : no valid assignment could have been made by the bank- 
 rupt after the notice to the trustee : a second assignee, in order to have 
 obtained apriority over the first, must have shown that he had exercised 
 proper precaution in taking the assignment ; that he had applied to the 
 trustees to know if any previous assignment had been made ; and unless 
 he applied for this purpose to each of the trustees, he would not have 
 exercised due caution, or done all that he ought to have done. But if 
 he applied to each of the trustees, he would have been informed by one 
 of them of the previous assignment to Smith, and he must then have 
 taken the property, if at all, subject to the claim of Smith." 
 
 But if a prior incumbrancer content himself with giving notice to one 
 of the trustees, and that trustee dies, and a second incumbrancer gives 
 notice of his own assignment, then, as the first incumbrancer did not do 
 his utmost to guard against the fraud, and the second incumbrancer 
 employed all the means in his power of detecting the fraud, the loss will 
 fall on the person who had so far occasioned that he might have pre- 
 vented \t.[q) 
 
 (p) 2 Cr. & Mees. 231 ; and see Ex parte Hennessey, 1 Conn. & Laws. 562 ; and 
 Bee Wise v. "Wise, 2 Jones & Lat. 412. 
 
 (?) See Meux v. Bell, Hare, 73 ; Ex parte Hennessey, 1 Conn. & Laws. 562.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 499 
 
 The case of Timson v. Ramsbottom(?-) may be referred to this principle. 
 A testator appointed Bacon the elder, Timson, Ramsbotton the elder, and 
 Eamsbottom the younger, his executors. In 1816, llamsbottom the 
 elder died. By indenture dated in 1819, and made between Bacon 
 the younger of the one part, and Thomas Bacon (not the executor,) 
 Langford, and Walford of the other part. Bacon the younger, who took 
 an interest under the will, assigned it to trustees upon trust for securing 
 the repayment to Bacon the elder of 5000^. and interest. In 1827, 
 Bacon the elder died, without having communicated the charge to his 
 co-executors. In 1828, a bill was filed, and the testator's estate was 
 brought into court. By indenture, dated in 1832, Bacon the younger 
 assigned the same interest to Corfield, who had no notice of the prior 
 incumbrance and made no inquiries, for securing to Corfield the sum of 
 1000?. and interest. In 1833, a regular notice of *the assign- r*(^i n-i 
 ment was sent by Corfield to the surviving executors. (s) Lord L -1 
 Langdale, in decreeing the priority of the second incumbrancer, observed, 
 " None of the cases cited at the bar appear to me to be like the present — 
 of a father and son having a transaction of this sort between themselves, the 
 father being one of several executors — no allegation even that the other 
 executors were informed before the notice was received from Corfield — 
 no ground to presume that the transaction was communicated to the 
 other executors, each of whom had separate authority to receive and pay 
 on account of the estate, and who, if they had no notice of the assign 
 ment, might have made payment to the assignee without incurring any 
 liability whatever on that account. I think, therefore, after, I admit, a 
 good deal of hesitation, that the knowledge of one of several executors 
 who were interested, and who does not appear to have communicated 
 that knowledge to his co-executor, is not sufficient to create a trust in 
 which the assignee has done nothing but accepted the assignment." A 
 petition of appeal was presented, and the pleadings were opened ) but 
 the lord chancellor suggesting the necessity of some previous inquiries, 
 the parties, rather than be involved in further litigation, agreed upon a 
 compromise. 
 
 As an incumbrancer may, by giving notice to one trustee, complete 
 his title for the time, and yet may afterwards by the death of the trustee 
 be displaced, it becomes a question whether, if notice be sent to all the 
 trustees, and they all die, a second incumbrancer, who gives notice to 
 the succeeding trustees, will not gain the priority. Notice properly 
 given at the time may be thought not to make an absolute title, but one 
 liable to be defeated by an alteration of circumstances ;(/) and an incum- 
 brancer would do well not only to give notice to all the trustees in the 
 first instance, but to watch as well as he can the changes in the state of 
 the trust, and to take care, by repeating his notice, that there is never a 
 
 (r) MS. ; S. C. 2 Keen, 35. 
 
 (s) The master of the rolls in his judgment states that notice was given to 
 Timson ; but his reasoning assumes, and I am informed the fact was, that notice 
 was also given to Ramsbottom. 
 
 {t) See Meux v. Bell, Hare, 97 ; but see Etty v. Bridges, 2 Y. & C. Ch. Ca. 493.
 
 500 LEAYIN ON THE LAW OF TRUSTS, ETC. 
 
 ^^ -. set of trustees *of wliom there is not at least one who has notice 
 L "'J of his charge. 
 
 Notice of an equitable incumbrance ought to be given to the trustees 
 as early as possible, but if delayed for any length of time, it will be 
 equally efficacious, provided no notice of any other charge has been 
 served in the interval. (i«) Therefore, if the owner of an equitable inte- 
 rest, but who has given no notice to the trustees, contract for the sale of 
 it, the purchaser cannot object to the title on the ground of no notice 
 having been given, unless he can show some intermediate incumbrance; 
 but it is the vendor's duty, by pointing out who were the trustees from 
 time to time, to furnish full means to the purchaser of inquiring whether 
 or no any such charge has been created. (r) 
 
 The notice, written or unwritten, (zr) but better written, may be given 
 either to the trustees themselves or to their solicitors ;(a:) and where no- 
 tice to one trustee would be sufficient, it may be given to one who is not 
 the acting trustee, there being no such distinction known to the law be- 
 tween an acting and a passive trustee. (y) It may even be communicated 
 to the trustee incidentally in the way of conversation ; for the only point 
 to be ascertained is, whether the existence of the charge has in fact come 
 to the personal knowledge of the trustee. (;:) Where the trust fund con- 
 sists of a share in a company, the notice may be sent to the secretary;(a) 
 but notice to A., a director, and B., the actuary, has in one case been 
 considered sufficient jfi) and in another notice to A., one of the direc- 
 tors, and B., an auditor 3(c) and it was at one time held that, as notice to 
 r*nm ^ partner is notice to the partnership, if by the *constitution of 
 L J an assurance office the person insuring becomes a partner, the 
 assignment of a policy by him is ipso facto notice of it to the society,((:?) 
 but the point has since been ruled the other way.(e) Incidental mention 
 of the charge to a clerh of the company, though in the office of business, 
 will not be constructive notice to the company itself. (/) The notice 
 served on the trustee should set forth the entire amount of the assignee's 
 claim, for it has been held that the trustee is affected by notice only of 
 the amount stated upon the face of the memorandum served, and not by 
 notice of all the contents of the instrument to which the memorandum 
 
 {u) Meux V. Bell, 1 Hare, 86, per Sir J. Wigram. 
 
 {v) Hobson V. Bell, 2 Beav. 17. 
 
 [iv) Smith V. Smith, 2 Cr. & Mees. 231; Ex parte Carbis, 4 D. & C. 357, per Sir 
 G. Rose ; S. 0. 1 Mont. & Ayr. 695, note, per eundem. 
 
 {x) Foster Y. Blackstone, 1 M. & K. 297. 
 
 {y) Smith v. Smith, 2 Cr. & Mees. 233. 
 
 {z) Smith V. Smith, 2 Cr. & Mees. 231, see 233. 
 
 (a) Ex parte Stright, Mont. 502. 
 
 (6) Ex parte Watkins, 1 Mont. & Ayr. 689; S. C. 4 Deac. k Chit. 87 ; but see 
 Ex parte Hennessey, 1 Conn. & Laws. 559. 
 
 (c) Ex parte Waithman, 4 Deac. & Chit. 412 ; but see Ex parte Hennessey, 1 
 Conn. & Laws. 559. 
 
 {d) Duncan v. Chamberlayne, 11 Sim. 126; Ex parte Rose, 2 Mont. Deac. & De 
 Gex, 131 ; and see Ex parte Cooper, ib. 1 ; Re Styan, ib. 219 ; and 1 Phil. 105. 
 
 (fi) Ex parte Hennessey, 1 Conn. & Laws. 559 ; Thompson v. Spiers, 13 Sim. 
 469; Martin v. Sedgwick, 9 Beav. 333; and see Powles v. Page, 3 C. B. R. 16. 
 
 (/) Ex parte Carbis, 4 Deac. & Chit. 354 ; S. C. 1 Mont. & Ayr. 693, note (a) ; 
 Ex parte Boulton, 3 Jur. N. S. 425.
 
 PROPERTIES OF CESTUI'3 QUE TRUST ESTATE. 501 
 
 refers.(^) But notice of a cliarge in general terms without expressing 
 any amount in particular will be sufficient, (/t) 
 
 Where money has been paid into court by trustees, it would seem that 
 they remain trustees for the purposes of notice until the fund has been 
 dealt with by the court, and then the court becomes the trustee ;(?') and 
 where the court is trustee the step equivalent to notice in the ordinary 
 case is the obtaining of a stop-order to restrain the transfer of the fund, 
 and as between two assignees, the one who first gets a stop-order will 
 have priority. (/t) It may be difficult, however, in many cases to deter- 
 mine whether the sole trusteeship resides in the court, and the point is 
 one which requires further decisions to elucidate it. If, therefore, the 
 trust fund be in court, the following course should be adopted. The 
 intended assignee should inquire at the accountant's-general and regis- 
 trar's offices whether any stop-order has been made, to restrain the 
 transfer of the fund, and aUo of the trustees, whether notice has been 
 given of any prior incumbrance; and, on the completion *of his r*g-[^^-| 
 own assignment, he should give notice to the trustees personally, L J 
 and obtain a stop-order himself, and leave it at the accountant's-general 
 office to be entered. If the accountant's-general office is closed, the 
 order should still be entered at the registrar's office.(/) The inquiry at 
 the accountant's-general or registrar's offices is merely for the purchaser's 
 greater satisfaction, and makes no part of his own title, for neither the 
 accountant-general nor the registrar is the trustee, but the court is the 
 trustee. The stop-order is the effective step, and whether previous in- 
 quiry was or not made at the accountant's-general or registrar's offices, 
 is immaterial. (m) 
 
 Should an incumbrancer give notice to the trustees, but neglect to 
 obtain a stop-order, he will still take precedence of a prior incumbrancer, 
 who has neither obtained an order nor given notice, or who had given 
 notice to one only of several trustees, and that trustee had died before 
 the time of the second incumbrance. It is true the second incumbrancer 
 did not adopt every precaution, but he resorted to one which the prior 
 incumbrancer neglected, to the detriment of the second incumbrancer : 
 while the first assignee either sent no notice, or one which, by the death 
 of the trustee before the time of the second incumbrance, had become 
 equivalent to no notice. (?;) 
 
 It may happen that at the time of the incumbrance there is no repre- 
 sentative of the trust on whom notice can be served, as if A. be trustee 
 of stock for B., and A. dies intestate, or his executor declines to act. 
 In such a case it has been held, that an incumbrancer gains priority by 
 
 ig) Re Bright's Trust, 21 Beav. 430. (/') See same case. 
 
 [i) Warburton v. Hill, 1 Kay, 4T7 ; Matthews v. Gabb, 15 Sim. 51. 
 
 {k) Greening v. Beckford, 5 Sim. 195; Swajne v. Swajne, 11 Beav. 463; Elder 
 V. Maclean, 3 Jur. N. S. 283. 
 
 (I) The petition for the stop-order (viz., that the interest of the assignor may 
 not be paid out of court without notice to the assignee) need not be served on 
 any of the other parties to the suit, though the share of the assignor has not beea 
 set apart to a separate account. See General Order, April 3, 1841, 2 Beav. xi. 
 
 (m) See Warburton v. Hill, 1 Kay, 478. 
 
 (n) Timson v. Ramsbottom, MS.; S. C. 2 Keen, 35, pp. 49 and 50; Matthews v. 
 Gabb, 15 Sim. 51 ; Brearclifl' v. Dorrington, 4 De Gex & Sm. 122,
 
 502 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 taking all the precautions that under the circumstances are practicable, 
 as if he serve a distringas on the bank where the stock is standing, (o) 
 r^n ''1 ^^ course, a purchaser who gives notice, or obtains a stop- 
 L "^J *order, can gain no priority over an incumbrance of which he 
 has notice himself, at the time of his own purchase. (^j) » 
 
 SECTION II. 
 
 OF TESTAMENTARY DISPOSITION. 
 
 An equitable interest is transmissible by devise,(g^) indeed the use in 
 the laud was devisable before the statute of Henry Vlll.(r) 
 
 But after the Statute of Frauds the courts held that a trust or equitable 
 interest could only be passed by a will, executed and attested as required 
 for the devise of the legal estate ; for otherwise a door would have been 
 opened to all the mischiefs and inconveniences the statute was intended 
 to prevent.(s) Whether trusts are within the letter of the act, or equity 
 brought them under its operation by analogy, it is not easy to deter- 
 mine ;(^) undoubtedly the word "lands" has often extended to include 
 trusts,(H) and, if so, there seems to be little reason why trusts should not 
 have fallen within the express terms of the statute. 
 
 Coj^i/Jwlds, strictly speaking, are not at common law a devisable inte- 
 rest. A surrender is made to the use of the will, and the gift contained 
 in the will operates as a declaration of the use. The devisee does not 
 come in by the will, but by the surrender and the will taken together, as 
 if the name had been inserted in the surrender itself. (w) Thus copyholds 
 at law were out of the Statute of Frauds, and might have been devised 
 by a will neither signed nor attested ; and, as equity followed the law 
 r*n ri *''^^^ ^^'^^^ ^^ ^ copyhold was devisable in the same manner.(?t') 
 L J II Where," said Lord Hardwicke, " the legal estate is in trustees, 
 the cestui que trust cannot, consequently, surrender, but the lands shall 
 notwithstanding pass by this devise according to the general rule that 
 equity follows the laio ; for there (i. e. at law) a copyhold will pass under 
 the will without three witnesses, or, where there are no witnesses at all ; 
 and if this nicety is not required in passing the legal estate, a fortiori, 
 it is not in passing the equitable, and therefore the cestui que trust may 
 
 (o) Etty V. Bridges, 2 Y. & C. Ch. Ca. 486. 
 
 (p) Warburton v. Hill, 1 Kay, 470. 
 
 (q) Cornbury v. Middleton, 1 Ch. Ca. 211, per Wjld, Just. ; Greenhill v. Green- 
 hill, 2 Veni. G80, per Lord Harcourt ; Cole v. Moore, Mo. 806, per Cur. ; Philips 
 V. Brydges, 3 Ves. 127, per Lord Alvanley. 
 
 (r) See p. 5.37, note 1. 
 
 (s) Wagstaff V. "WagstafF, 2 P. W. 259, per Lord Macclesfield; Adlington v. 
 Cann, 3 Atk. 151, per Lord Hardwicke; Burgess v. Wheate, 1 Ed. 224, per Lord 
 Mansfield. 
 
 {t) See Burgess v. Wheate, ubi supra; WagstaflT v. WagstafiP, 2 P. W. 261. 
 
 (m) See supra, p. 593. 
 
 {v) Hussey v. Grills, Amb. 300, per Lord Hardwicke. 
 
 («■) Appleyard v. Wood, Sel. Ch. Ca. 42 ; Wagstaft' v. Wagstaff, 2 P. W. 258 ; 
 Tuti'nell V. Page, 2 Atk. 37; and see Attorney-General v. Andrews, 1 Ves. 225; 
 but see Anon, case, cited Wagstaff v. Wagstaff, 2 P. W. 261.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 503 
 
 by the same kind of instrument dispose of the trust estate as if he had 
 the legal estate in them."(a:) And the equitable interest might always 
 have been passed by will, though not preceded by a surrender, which 
 was required to pass the legal estate.(7/) But, by 55 Geo. 3, c. 192, a 
 surrender was dispensed with even in respect of the legal estate. 
 
 As equitable interests in copyholds were regulated by analogy to the 
 custom alFecting the legal estate, one might have supposed, that where 
 the legal estate could not have been devised, the equitable estate in like 
 manner must have been left to descend. However, it was decided by the 
 court, that notwithstanding the want of the custom, the owner of the 
 equitable estate could always have passed it by will.(ri) Whether the 
 will to have this effect must have been executed according to the Statute 
 of Frauds, or whether any instrument sufficient for declaring the uses on 
 a surrender would have been enough does not appear. 
 
 The doctrines laid down as to copyholds were not extended to customary 
 freeJiokls.[l) The determination as *to copyholds was grounded r^gj^-r-i 
 on the circumstance that the interest passed, not by the will, but L J 
 by the surrender; but customary freeholds are strictly and properly 
 speaking devisable, the estate passing by the will. The legal estate of 
 customary freeholds was, therefore, not excepted from the Statute of 
 Frauds ;(a) and, of course, a devise of the eguitahle interest must have 
 been attended with the same formalities as if it had been a devise of the 
 legal. (Jj) 
 
 Now, by the late Wills Act,(c) as to wills made on or after the 1st day 
 of January, 1838, every devise or bequest of property, of whatever descrip- 
 tion, whether real or personal, freehold or copyhold, legal or equitable, 
 must be made by a will in writing, signed by the testator and attested 
 by two witnesses. 
 
 SECTION III. 
 
 OF SEISIN AND DISSEISIN. 
 
 The term seisin is properly applicable to legal estates ; but a court of 
 equity regards actual receipt of the rents and profits under the equitable 
 title as equivalent to seisin at law, and has often adjudicated upon the 
 rights of parties with reference to that circumstance. 
 
 Thus, in Casborne v. Scarfe,((/) it was disputed, whether, as curtesy 
 
 (x) Tuffnell v. Page, 2 Atk. 38. 
 
 (y) Greenhill v. Greenhill, 2 Vera. G79; Tuffnell v. Page, 2 Atk. 37 ; Gibson v. 
 Rogers, Amb. 93. 
 
 {z) Lewis V. Lane, 2 M. & K. 449; Wilson v. Dent, 3 Sim. 385; and see ante, 
 pp. 45, 46, and p. 537, note 1. 
 
 (a) Hussey v. Grills, Amb. 299; and see Doe v. Danvers, 7 East, 299. 
 
 (b) Ilussey V. Grills, ubi supra ; Willan v. Lancaster, 3 Russ. 108. 
 
 (c) 7 Gul. 4, & 1 Vic. c. 26. {d) 1 Atk. 603 ; Parker v. Gnrter, 4 Hare, 413. 
 
 (1) A copyhold is where the freehold is in the lord, and the copyliolder's estate 
 passes by surrender. A customary freehold is where the tenure is copyhold, but 
 the freehold interest is in the tenant, and passes by deed. Bingham v. Woodgate, 
 1 R. & M. 32 ; S. C. Taml. 183.
 
 504 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 did not attach at law without a seisin in fact, the husband could claim 
 his curtesy out of the wife's equity of redemption ; but Lord Hardwicke 
 said, "It is objected there is no seisin whatever of the legal estate in the 
 wife in the consideration of law. But that is not the present question : 
 the true question is, if there was such a seisin or possession of the equi- 
 table estate in the wife, as in this court is considered equivalent to an 
 actual seism of a freehold estate at common law ; and I am of opinion 
 there was. Actual possession, clothed with the receipt of the rents and 
 profits, is the highest instance *of an equitable seisin, both of 
 L -I which there were in this case." 
 
 And so it was held that there was possessio frafris of a trust, in other 
 words, that if a person inherited a trust and died befoi-e actual seisin of 
 the estate, it should descend to the brother of the half blood, as heir to 
 the father, in preference to the sister of the whole blood ; but if there 
 had been such a receipt of the rents and profits as constituted equitable 
 seisin, the sister of the whole blood, as heir to the brother, would exclude 
 the brother of the half blood. (e) 
 
 The doctrines of the court upon the subject of equitable disseisin cannot 
 be better illustrated than by a statement of the well known case of The 
 Marquis of Cholmondeley v. Lord Clinton. (/) The circumstances were 
 briefly as follows : — George, Earl of Orford, conveyed certain manors and 
 hereditaments to the use of himself for life, remainder to the heirs of his 
 body, remainder as he should by deed or will appoint, remainder to the 
 right heirs of Samuel RoUe, with a power reserved of revocation and 
 new appointment. Some time after the earl executed a mortgage in fee, 
 which operated in equity as a revocation of the settlement pro tanto. In 
 1791, the earl died without issue and intestate, and upon his death the 
 ultimate remainder (which had been a vested interest in the earl himself, 
 as the heir of Samuel Rolle at the date of the deed,) should have de- 
 scended to the right heir of the earl, but, the parties mistaking the law, 
 the person who was heir of Samuel Rolle at the death of the earl was 
 allowed to enter on the premises, and continued in possession, subject to 
 the mortgage, up to the commencement of the suit. The bill was filed 
 in 1812, by the assign of the right heir of the earl against the mortgagee, 
 and the assign of the right heir of Samuel Rolle, for redemption of the 
 premises, and on account of the profits. It was debated whether, as the 
 legal estate was vested in the mortgagee, and the heir of Samuel Rolle 
 had held the possession subject to a subsisting mortgage, the assign of 
 r*nQl ^^® ^ax\ of Orford's heir, to whom the equity of redemption *be- 
 L J longed in point of right, had been disseised of his equitable inte- 
 rest, and was now barred by the efi"ect of time. Sir W. Glrant argued, 
 that " although there might be what was deemed a seisin of an equitable 
 estate, there could be no disseisin, first, because the disseisin must be of 
 the entire estate, and not of a limited and partial interest in it — the equi- 
 table ownership could not possibly be the subject of disseisin ; and, 
 secondly, because a tortious act could never be the foundation of an equi- 
 table title : that an equitable title might undoubtedly be harred by length 
 
 («) But see now 3 & 4 Gul. 4, c. 106. (/) 2 Mer. 171 ; 2 J. & W. 1.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 505 
 
 of time, but could not be shifted or tranferred.i^g) It was admitted in 
 the present case the equity of redemption subsisted : it must therefore 
 belong to some one and could only belong to the original cestui que 
 trnstJji) That so long as the trust subsisted, so long it was impossible 
 that the cestuis que trust could be barred. .The cestuis que trust could 
 only be barred by barring and excluding the estate of the trustee."(t) 
 Sir W. Grant did not then decide the point, but directed a case for the 
 opinion of the Queen's Bench on a question of law, and retained the bill 
 till the judge's certificate should be returned. 
 
 The cause was afterwards reheard on the equity reserved before Sir T. 
 Plumer, who determined that the original cestui que trust had been dis- 
 seised, and was consequently barred. (Z^-) " The grounds," he said, ^<upon 
 which it is contended that the holder of the rightful equity is not bound 
 by laches and non-claim are, that the tortious possessor does not claim 
 to be the owner of more than the equitable estate — the legal estate 
 remains unbarred : that there is no disseisin abatement or intrusion of a 
 trust — the possessor is only tenant at will, and may be dispossessed at 
 any time by the trustee of the legal estate — he has therefore only a pre- 
 carious and permissive possession : that tortious possession can never be 
 the foundation of an equitable title."(?) But this reasoning proceeds on 
 a mistaken view of the manner in which, and the grounds upon which, 
 the bar from length of time operates. The question respects the plain- 
 tiff's right to the remedy, not the defendant's *title to the estate. r*«9Q-| 
 A tortious act can never be the foundation of a legal any more L "' J 
 than of an equitable title. The question is, whether the plaintiff has pro- 
 secuted his title in due time. The quiet and repose of the kingdom, the 
 mischief arising from stale demands, the laches and neglect of the right- 
 ful owner, and all the other principles of public policy, take away the 
 remedy, notwithstanding the title veri domini, and the tortious holding 
 of the possessor, (m) As to the argument that a title in a court of equity 
 may be lost by laches, but cannot be transferred without the act of the 
 party, the case is the same in this respect both in equity and law. The 
 title is changed in both by the operation of a public law upon public 
 principles without regard to the original private right. If the negligent 
 owner has for ever forfeited by his laches his right to any remedy to 
 recover, he has in effect lost his title for ever. What, then, is to become 
 of the title, whether legal or equitable ? Is it to become hcereditas 
 Jacens, belonging to no one ? Is it to devolve on the crown, or to pass 
 by escheat? The plaintiff is barred of his remedy : the defendant keeps 
 possession without the possibility of being ever disturbed by any one : 
 the loss of the former owner is necessarily his gain ; it is more — he gains 
 a positive title under the statute at law, and, by analogy, in equity. («) 
 If the mere existence of an old legal estate would have the effect of pre- 
 venting the bar attaching upon the equitable estate, all the principles 
 that have been established respecting equitable estates and titles would 
 be overturned. According to this reasoning, whenever the legal estate 
 
 (g) See Hopkins v. Hopkins, 1 Atk. 590. 
 
 (A) 2 Mer. 357-359. (0 2 Mer. .361. (A-) 2 J. & W. 1. (/) lb. 153. 
 
 (7») 2 J. & W. 155. (h) lb. 155, 156.
 
 500 LEV,' IX ox TUE LAW OF T K U S T S, ETC. 
 
 is outstanding, in an old term, for instance, to attend the inheritance, 
 the earliest equitable title must in all cases prevail : quiet enjoyment for 
 sixty, one hundred, or two hundred years or more, would be no security, 
 if the old term had existed longer: it would always be open to inquiry 
 in whom was vested the equitable title which originally existed when 
 the old term was created."(y) 
 
 On appeal to the house of lords, his honor's decision was affirmed, 
 and the principle on which it proceeded was approved. *Lord 
 L ""J Eldon said, " The connection between the legal estate in the term 
 and the equities of the persons entitled to the inheritance was by no 
 means indissoluble;" and he instanced the case of a second mortgagee, 
 without notice of the incumbrance of the first, getting in an outstanding 
 term by which he shifted to himself the equity that was previously in 
 the first. " lie could not agree, and had never heard of such a rule as 
 that adverse possession, however long, would not avail against an equit- 
 able estate : his opinion was, that adverse possession of an equity of 
 redemption for twenty years was a bar to another person claiming the 
 same equity of redemption, and vjorkecl the same effect as abatement or 
 intnision with respect to legal estates, and that for the quiet and peace of 
 titles and the xcorld it owjht to have the same rffect.'^{h^ 
 
 SECTION IV. 
 
 OF DOWER AND CURTESY. 
 
 A trust,(/) or equity of redemption, (Z:) of freeholds, was until the late 
 act(^) exempt from the li'ii of dower, but was and still remains subject 
 to the curtesy of the husband, (?h) unless the husband be an alien. (/i) 
 
 An equitable interest in copyholds (as the late act does not apply to 
 i}\cm(o\ is not subject to freebencli.(y>) 
 
 r*r99n ^^ Banks v. Sutton, (</) a case of dower, Sir J. Jekyll took a 
 L "J ^distinction between trusts created by the husband himself, and 
 trusts originating from a stranger — that in the former case the wife 
 should not be dowable, for it might reasonably be supposed the husband 
 had intended to bur her dower, but in the latter case there was no ground 
 
 (//) 2 J. & w. 1r^^. (h) 2 J. & w. 190, loi. 
 
 (i) Colt V. Colt, 1 Ch. Re. 254; Hotlomlcy v. Lord Fairfiix, Pr. Ch.33G; Attor- 
 ney-General V. .Scott, Ilcp. t. Tidb. l.iH; Chaplin v. Chiiplin, 3 P. W. 220; Sliep- 
 hcrd V. ►Shepherd, Id. 234, note (D) ; Curtis v. Curtis, 2 B. C. C. 630, per Lord 
 Alvanley ; Liuly Hudiior v. Kolherliam, I'r. Ch. 05, per Lord .Soraers; Godwin v. 
 Winsmore, 2 Alk. 525. 
 
 (k) Dixon v. .Seville, 1 B. C. C. 32tj ; Reynolds v. Messing, cited Casborne v. 
 Scarfe, 1 Atk. 004; 2 J. k W. 104. 
 
 (I) ■:. k 4 W. IV. c. 105. 
 
 (m) (Jhuplin v. Chaplin, 3 P. W. 234, per Lord Talbot; Attorney-General v. 
 Hcolt, Rep. t. Talb. 130, per eundcm; Watts v. Hall, 1 P. W. 108; Sweetapple v. 
 Bindon, 2 Vcrn. 53G ; Ciinninghain v. Moody, 1 Ves. 174; Casborne V. Scarfe, 1 
 Atk. C03 ; Dodson v. Hay, 3 B. C. C. 405. 
 
 {n) See Dumoneel v. Dunioncel, 13 Ir. Eq. Rep. 02. 
 
 {')) Smith V. AdaniH, 5 I)e (Jex, Mac. k Gor. 712. 
 
 {)>) iM.ider V. Winle, 4 15. C. (.'. 521. (ry) 2 P. W. 700.
 
 PROPERTIES OF CESTUI'S QUE TRTST ESTATE. 507 
 
 for such a presumption, and therefore the title to dower should attach. 
 His honor, however, did not rest his decision upon this distinction, (r) 
 and in subsequent cases the refinement has been rejected. (s) 
 
 With respect to curtesy, as at law the wife, to entitle her husband to 
 curtesy, must have had seisin in deed of the freehgld, the question arises 
 whether in the instance of a fru?t there must not have been such a seisin 
 of the equitable estate in the wife, as is considered equivalent to legal 
 seisin, as actual possession of the estate clothed with the receipt of the 
 rents and profits. It seems to be admitted that if the equitable interest 
 be in the possession of a stranger, adversely to the right of the wife, 
 there is no such seisin in deed as to entitle the husband to his curtesy. (/) 
 But if money be articled or directed by will to be laid out in a purchase 
 of land to be settled on a married woman in fee or in tail, the husband 
 is entitled to curtesy, though no rent or interest may have been actually 
 paid during the coverture. (u) This proceeds on the principle that the 
 laches of the trustees shall not prejudice the right of a third person, and, 
 therefore, the claim to curtesy, arises in the same manner as if the trus- 
 tees had actually laid out the money on land and completed the settle- 
 ment, and put the parties in possession. 
 
 However, it has been lately held, that in the case of an ordinary trust, 
 any seisin of the wife, though she has not possession or receipt of rents, 
 is sufficient to entitle the husband to curtesy. An estate had been vested 
 in trustees upon trust for Carter, during the joint lives of himself and 
 Mary his wife, and upon the death of either of them, and in default of 
 appointment upon trust for the children in fee. There were *two ^^ ,.,.^^ 
 children, a son and a daughter Elizabeth, and the daughter L ~^-l 
 married Parker; Carter died in 1S17, and on his decease the widow, 
 although she had no life estate, held possession of the estate until her 
 own death in 1839. Elizabeth Parker died in 1836, and the question 
 was. whether Parker the husband was tenant by the curtesy, although 
 his wife had never been in receipt of rents. The vice-chancellor ruled, 
 that the possession of Carter was the possession of his trustee, and gave 
 to that trustee a seisin of the inheritance ; that the death of Carter did 
 not interrupt that seisin, but the trustee was still in actual possession, 
 not by a new title then for the first time accruing, but by continuance 
 of the seisin acquired during the coverture ; that the trustee was in such 
 possession for the benefit of the party lawfully entitled thereto, and that 
 he continued in such possession until the entry of Mary, which might be 
 supposed to be a month or more after the death of her husband, and 
 that such interval, there being no adverse possession, would entitle the 
 husband to his curtesy. ^r) 
 
 If the trust be for the separate use of the wife, so that her seisin 
 would not entitle her husband to the possession or profits, it was formerly 
 doubted whether in this case curtesy was not excluded. Lord Hardwicke 
 
 (r) 2 P. W. 715. 
 
 (t) See Curtis v. Cnrtis. 2 B. C. C. 630 ; D'Arcv v. Blake. 2 Sch. & Lef. 391 ; 
 Godwin t. Winsmore. 2 Atk. 526: Bursress v. "Wlieate, 1 Ed. 197. 
 (t) Parker v. Carter. 4 Hare. 413. 
 
 (m) Sw-eetapple t. Bindon, 2 Vern. 536; Dodson v. Har. 3 B. C. C. 405. 
 (rj Parker v. Carter. 4 Hare, 400 : see Casborne v. Scarfe. 1 Alk. 606.
 
 508 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 was originally in favour of tlie curtesy ;(tt-) but in a subsequent case 
 (without any allusion, however, to his former opinion,) he decided 
 against the claim of the husband. (.r) It has since been determined 
 that the husband is entitled.(y) 
 
 It was observed by Sir John Leach, that " At Imo the husband could 
 not be excluded from the enjoyment of property given to or settled upon 
 the wife, but in equitij he might, and that not only partially, as by a 
 direction to pay the rents and profits to the separate use of the wife 
 during coverture, but wholly by a direction that upon the death of the 
 wife, the inheritance should descend to the heir of the wife, and that the 
 husband shoidd not he entitled to he tenant hy the curtesy ;"{£) but 
 *this doctrine may admit of question, as there appears no reason 
 L "' J why a person should be able to exempt an equitable any more 
 than a legal estate from the ordinary incidents of property. A declara- 
 tion, for instance, by a settlor, that a trust should be inalienable or not 
 available to creditors would be absolutely void. In the case of Bennet 
 V. Davis, (a) which is cited by Sir J. Leach for his position, the question 
 discussed was not whether curtesy attached on an equitable estate, but 
 whether any equitable estate arose. A testator had devised lands " to 
 his daughter, the wife of Bennet, for her separate use, exclusive of her 
 husband, to hold the same to her and her heirs, and that her husband 
 should not be tenant by the curtesy, nor have the lands for his life in 
 case he survived, but that they should upon the wife's death go to her 
 heirs." It was contended that the wife could not be a trustee for her- 
 self, and the husband could not be a trustee for the wife, they both being 
 but one person, and, therefore, as there was no trustee the husband was 
 entitled to the estate beneficially. But the court held clearly that the 
 husband was a trustee for the wife, and observed, " though the husband 
 might be tenant by the curtesy (viz., of the legal estate,) yet he should 
 be but a trustee for the heirs of the wife." The remark certainly implies 
 that on the death of the wife the husband would not be tenant by the 
 curtesy of the equitable estate, but that question had not been adverted 
 to at the bar, and apparently, from the context, was not under the con- 
 sideration of the court. Even assuming the remark to have been made 
 advisedly, the view of the court may have been that the curtesy of the 
 husband was excluded on a ground now overruled, viz., that the trust 
 being not simply for the wife and her heirs but during the coverture for the 
 separate use of the wife, and after her death for her heirs, there was not 
 a sufficient seisin as regarded the husband for the curtesy to attach upon.(&) 
 
 It must be acknowledged on all hands, that, as dower and curtesy 
 stand exactly on the same footing upon princiijle, either the rejection of 
 P^pf,r-. dower, or the admission of curtesy, was *an anomaly. Some 
 L "^ J high authorities, as Lord Talbot,(c) Sir T. Clarke,(£?) and Lord 
 
 [iv) Roberts v. Dixwell, 1 Atk. 609. 
 
 {x) Hearle v. Greenbank, 3 Atk. "715, 716; and see Bennet v. Davis, 2 P. "W. 316. 
 
 (y) Morgan v. Morgan, 5 Mad. 408 ; Follett v. Tyrer, 14 Sim. 125. 
 
 (z) Morgan v. Morgan, 5 Mad. 411. (a) 2 P. W. 316. 
 
 {b) See Hearle v. Greenbank, 3 Atk. Y15, 716 ; Morgan v. Morgan, 5 Mad. 408. 
 
 (c) Chaplin v. Chaplin, 3 P. W. 234 ; Attorney-General v. Scott, Rep. t. Talb. 139. 
 
 {d) Burgess v. Wheate, 1 Ed. 196-198.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 509 
 
 Loughborough,(e) regarded curtesy as the exception ; and tlic ground 
 upon which they proceeded was, that as trusts followed the likeness of 
 the use, and there was no curtesy of the use, there could be none of the 
 trust. On the other hand, Sir J. Jekyll,(/) Lord Hardwicke,(ryr) Lord 
 Cowper,(/i) Lord Mansfield,(i) Lord Henley,(^) and Lord Iledesdale,(^) 
 thought that consistency would be restored by the admission of the title 
 to dower ; for, since the Statute of Frauds, they argued the system of 
 trusts had undergone considerable alteration, and was conducted at pre- 
 sent upon a much more liberal footing : the rule now was, that, as be- 
 tween the cestui que trust and the trustee and all claiming by or under 
 them, whoever would have a right against the legal estate had a like 
 right against the equitable. Thus, either argument had a fair show of 
 reason to support it ; but the latter view was, no doubt, more in harmony 
 with the system of trusts as at present established. 
 
 Why the courts should have been induced to leave dower an excep- 
 tion, has been accounted for, not more ingeniously, than satisfactorily, 
 by Lord Redesdale : — "The courts of equity," he said, "had assumed 
 as a principle in acting upon trusts to follow the law; and, according to 
 this principle, they ought in all cases where rights attached on legal 
 estates to have attached the same rights upon trusts, and consequently 
 to have given dower of an equitable estate. It was found, however, that 
 in cases of dower, this principle, if pursued to the utmost, would affect 
 the titles to a large proportion of the estates in the country ; for that 
 parties had been acting on the footing of dower upon a contrary princi- 
 ple — that by the creation of a trust the right of dower would be pre- 
 vented from attaching. *Many persons had purchased under ^ _^ 
 this idea ; and the country would have been thrown into the L " J 
 utmost confusion, if courts of equity had followed their general rule with 
 respect to trusts in cases of dower. But the same objection did not apply 
 to tenancy by the curtesy ; for no person would purchase an estate subject 
 to tenancy by the curtesy without the concurrence of the person in whom 
 that right was vested. Pending the coverture, a woman could not aliene 
 without her husband, and therefore nothing she could do would be un- 
 derstood by a purchaser to affect his interest. But when the husband 
 was seised or entitled in Ms oion right, he had full power of disposing, 
 except so far as dower might attach ; and the general opinion having 
 long been that dower was a mere legal right, and that, as the existence 
 of a trust estate previously created prevented the right of dower from 
 attaching at law, it would also prevent the property from all claim of 
 dower in equity, and many titles depending on this opinion, it was found 
 that it would be mischievous, in this instance, to act on the general prin- 
 ciple. "(?n) 
 
 Now, by a late act,(n) the widow is entitled to dower in equity where 
 the husband shall die beneficially entitled to any interest (not conferring 
 
 (e) Dixon v. Savilie, 1 B. C. C. 327. 
 
 (/) Banks v. Sutton, 2 P. W. 713, 714. 
 
 (y) Casburne v. Casburne, 2 J. & W. 200. {h) Watts v. Ball, 1 P. W. 109. 
 
 (?) Burgess v. Whoate. 1 Ed. 224. {k) lb. 249-251. 
 
 (Z) D'Arcy v. Blake, 2'Sch. & Lef. 388. 
 
 (m) D'Arcj' v. Blake, 2 Sch. & Lef. 388. (n) 3 & 4 W. 4, c. 105. 
 
 March, 1858.— 33
 
 510 LEWIN OX THE LAW OF TKUSTS, ETC. 
 
 a title to dower at law^) which, whether wholly equitable, or partly legal 
 and partly equitable, shall be an estate of inheritance in possession, or 
 equal to an estate of inheritance in possession, other than an estate in 
 ioint tenancy. (o) But in either case the wife will not be entitled to 
 dower out of any property absolutely disposed of by the husband in his 
 lifetime or by will.(j^) Add by the act a widow is not entitled to dower 
 out of any land, when in the deed of conveyance thereof to her husband, 
 or in any deed executed by him, it shall be declared that his widow shall 
 not be entitled to dower ^(j) and the widow's right of dower will also be 
 barred by the husband's declaration of intention contained in his will.(r) 
 f^pcyj-] The act does not extend to *the dower of any widow married on 
 »- "^ -I or before the 1st day of January, 1834, and does not affect copy- 
 holds, (s) 
 
 SECTION V. 
 
 OF THE ESTATE OF A FEME COVERT CESTUI QUE TRUST. 
 
 Under the above title we shall first advert shortly to the effect of marriage 
 upon property, held upon trust for a /erne covert simply, and not for her 
 separate use; treating, in order, of pure personalty, chattels real, and real 
 estate of freehold or inheritance ; and we shall then proceed to consider 
 the nature of the wife's separate estate. 
 
 1. As respects pure personal estate, such as chattels personal, money, 
 legacies, and choses in action not settled to the wife's separate use, the 
 husband's power depends in cases of trust just as in cases where the title 
 of the wife is legal, upon the fact of rechiction into 2^ossession.{t\ If the 
 ■wife's equitable interest be possessory, and the trustee be willing to faci- 
 litate the reduction into possession by payment, transfer, &c., to the hus- 
 band, the /erne's rights are at an end. Nothing, however, short of an 
 actual reduction into possession will sufl&ce ; and in the absence of reduc- 
 tion by the husband during his life, the equitable interest goes to the 
 wife by survivorship. It follows from what has been stated, that where 
 the wife's interest remains reversionary until after the husband's death, 
 and the wife survives, she necessarily takes by survivorship. («) And a 
 similar principle applies, where the interest of the wife may be viewed as 
 partly possessory and partly reversionary, — as where the wife is entitled 
 during her own life ; in which case, the husband cannot bind the interest 
 of the wife beyond the duration of the coverture. (i;) So, even if the 
 husband assign the wife's reversionary interest, and it subsequently, 
 during the husband's lifetime, become possessory, the wife's right by 
 
 (o) Sect. 2 ; and see Smith v. Spencer, 2 Jur. N. S. T'ZS. 
 
 (p) Sect. 4. 
 
 iq) Sect. 6. This enactment operates prospectively only, and does not apply to 
 a declaration against dower contained in a conveyance executed previously to the 
 act. See Noble v. Fry, 20 Beav. 598, and sect. 14 of Act. 
 
 (r) Sect. 7. (s) Powdrell v. Jones, 2 gm. & Gif. 407. 
 
 [t) Purdew v. Jackson, 1 Rus3.45, 46. 
 
 («) Purdew v. Jackson, 1 Russ. 1 ; Honner v. Morton, 3 Russ. 65. 
 
 iy) Stiffe V. Everitt, ] M. & Cr. 37 ; Harley v. Harley, 10 Hare, 325.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 511 
 
 ^survivorship remains, unless reduction into possession be actually pp.^o-i 
 effected by the husband in his lifetime. (!c) L - J 
 
 So fiir the analogy between interests legally vested in the feme, and 
 those which are held for her by a trustee, is perfect ; but in the case of 
 the equitable interest, the husband's rights are further subject to the 
 wife's equity to a settlement. This equity appears to have had its 
 origin(x) in cases where the trustee, declining to pay, transfer, &c., the 
 icife's possessor!/ interest to the husband, and the husband filing a bill 
 against the trustee to compel ^ja^me/i^, transfer, &c., the court held that 
 those who seek equity must do equity ; and declined to assist the husband 
 in obtaining the wife's equitable interest, except upon the terms of some 
 portion of it being settled for the benefit of the wife and her issue.(y) 
 
 But whatever may have been the source of this equity, it is undoubt- 
 edly one which the wife has a right, according to the now established 
 practice of the court, to assert actively, either by bill,(?-) or, in the case 
 of an already existing suit, by petition,(a) at any time before the husband 
 has finally reduced the' equitable interest into possession. It is equally 
 clear that the equity is one which the wife has a right to waive, by con- 
 senting in open court to the receipt of the equitable interest by the 
 husband. 
 
 It must be remembered, that the wife's equity to a settlement, and her 
 right by survivorship, are two entirely distinct things. The former arises 
 only when the fund is ready for reduction into possession and may be 
 waived by the wife in open court ; the latter the wife cannot, by any act 
 during coverture, deprive herself of; and the court, as we have seen else- 
 where,(i) treats as nugatory any act done by the husband, or by his pro- 
 curement, for the purpose of rendering the wife's -^reversionary [-*p9q-i 
 interest possessory, and thus diminishing her rights by survivor- L "'J 
 ship. 
 
 2. The effect of marriage being, as a general rule, the same upon equi- 
 table as upon legal interests, it follows that, as the husband may assign 
 the chattels real of the wife at law, so he may assign her trust of a terux 
 in equity,(c) though it be merely a contingent interest j(rZ) and, of course 
 without the concurrence of either the wife or the trustee, and without 
 consideration. And this doctrine has not been interfered with by the 
 case of Purdew v. Jackson ;(e) for a trust of chattels real is not a chose in 
 
 (w) Allison v. Elwin, 13 Sim. 309: Ashby v. Ashbj, 1 Coll. 553: Baldwin v. 
 Baldwin, 5 De Ges & Sm. 319. 
 
 (x) See Bosvil v. Brander, 1 P. W. 458 ; Browne v. Elton, 3 P. W. 202. 
 
 (ij) As to the present practice of the court in settling the whole or part, see pp. 
 369, 370, supra, and cases there referred to. 
 
 (2) Lady Elibank v. Montolieu, 5 Vesey, 737. 
 
 (a) Greedy v. Lavender, 13 Beav. 62 ; Scott v. Spashett, 3 Mac. & Gor. 599. 
 
 (6) Pages 371, 372, supra. 
 
 (c) Roupe v. Atkinson, Bumb. 162 ; Mitford v. Mitford, 9 Yes. 99, per Sir W. 
 Grant; Packer v. Wyndham, Pr. Ch. 418,419, per Lord Cowper; Franco v. Franco, 
 4 Ves. *528, per Lord Alvanley; Bullock v. Knight, 1 Ch. Ca. 266, per Lord Not- 
 tingham ; Sanders v. Page, 3 Ch. Re. 223, per Cur.; Macaulay v. Phillips, 4 Ves. 
 19, per Lord Alvanley; Wikes's case, Lane, 54, per Barons Snig and Altham; S. 
 C. Roll. Ab. 343 ; Jewson v. Moulson, 2 Atk. 421, per Lord Hardwicke ; lucledon 
 V. Northcote, 3 Atk. i3o, per eundem; Clark v. Burgh, 2 Coll. 221. 
 
 {d) Donne v. Hart, 2 R. & M. 360. (0 1 Kuss. 1.
 
 512 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 action, but a present interest — an estate in possession. (/) If, however, 
 the equitable interest in the chattel be such that it could not by possi- 
 bility vest in the wife during the coverture, then, inasmuch as a legal 
 interest of a similar kind could not be disposed of by the husband, he 
 cannot dispose of the equitable one.(^) 
 
 Whether the doctrine regarding the wife's equity to a settlement ex- 
 tends to the equitable chattels real of the wife, has been much doubted. 
 It was held in a late case, by Vice-Chancellor Wigram, as a result of the 
 principles laid down by Lord Cottenham, in Sturgis v. Champneys,(/t) 
 that even where the husband could dispose of the equitable chattel, the 
 wife was entitled to a provision out of the equitable interest as against 
 the assignee of the husband, for valuable consideration. (i) The opinion 
 of the vice-chancellor himself was the other way, but he considered him- 
 self bound by the authority of the chancellor in the case referred to. 
 r*fi^m *The result of these decisions is very remarkable. Thus, a 
 L -I mortgage by the husband of the wife's legal term bars her of all 
 right, except in the equity of redemption ;(A;) while under a similar mort- 
 gage of the equitable term, she would have an equity to a settlement as 
 against the mortgagee. Again, the legal reversionary term of the wife, 
 provided it be such as may by possibility vest during the coverture, is 
 capable of absolute assignment by the husband ; and the wife has no right 
 by survivorship, such as exists in the case of her cliose in action, whereas 
 as respects the assignment of a similar equitable interest, there would be 
 an equity to a settlement in the wife. Supposing then the not improba- 
 ble case to arise of an actual assignment by the husband of the wife's 
 equitable term, and of his death before any question raised as to the rights 
 of the parties, the court will have to decide, either that the wife's equity 
 to a settlement may be asserted after the husband's death (an entirely 
 new doctrine,) or that the death of the husband places the assignee in a 
 better position than he was in so long as the husband lived. The diffi- 
 culties, indeed, of applying the doctrine of the ivi/e's equity to the case 
 of chattels real, must, undoubtedly, prove considerable ; but it can be 
 hardly expected, that the steps of which Lord Cottenham, in Sturgis v. 
 Champneys, took the first, will now be retraced. 
 
 It is conceived that if the husband, or the assignee from him of the 
 wife's equitable term, can procure an assignment of the legal estate from 
 the trustee, the wife's equity to a settlement is at an end ; but the point 
 is untouched by authority. 
 
 If a judgment be acknowledged to A. in trust for 2, feme so?e, and she 
 marries, and the conusee of the judgment sues an elegit, and possession 
 of the lands is delivered to him in trust for the wife, the husband may 
 assign the extended interest, as he might have assigned the trust of a term 
 
 (/) See Mitford v. Mitford, 9 Ves. 98, 99; Holland's case, Style, 21 ; Burgess v. 
 Wheate, 1 Ed. 223, 224; Box v. Jackson, 1 Drurj, 84. 
 {(j) Duberly v. Day, 16 Beav. 33. 
 
 (/i) 5 M. & Cr. 97 ; and see Wortham v. Pemberton, 1 De Gex & Sm. 644. 
 (i) Hanson v. Keating, 4 Hare, 1. 
 (;;) Hill V. Edmonds, 5 De Gex & Sm. 603 ; Clark v. Cook, 3 De Gex & Sm. 333.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 513 
 
 certain ;(?) and the law is the same where the feme is put in possession of 
 lands by a decree of the Court of Chancery until a certain sum he raised 
 by way of cquitcible eleQit.[m) But a mere judgment, recovered by the 
 *wife before the coverture, is clearly a chose in action, and as pgg^^-i 
 such cannot be disposed of by the husband, except by actual re- L J 
 duction into possession. (n) 
 
 And it has been held that a mortgage term in trust for the wife,(o) 
 or a term in trustees for raising a portion for her, (^p) may be assigned 
 by the husband so as to carry the beneficial interest. But in these cases 
 a doubt arises whether the debt or portion may not be held to be the prin- 
 cipal thing ] and as the doctrine that a cliose in action of the wife is not 
 disposable by the husband is of far more recent date than the decisions 
 referred to, the question cannot be considered as settled. The cases in 
 which it has been held under the order and disposition clause in bank- 
 ruptcy, that the land draws with it the debt, so as to exclude the opera- 
 tion of the clause, tend strongly to support the old authorities, but are 
 hardly decisive. ((^) 
 
 A second husband may assign the trust of a term limited to the 
 separate use of a/eme upon her first marriage, or during her first cover- 
 ture, unless it appear that it was the intention to extend the separate use 
 to a subsequent marriage.(r) It was held, indeed, by Lord Nottingham 
 in Sir Edward Turner's case,(s) that a term thus limited could not be 
 disposed of by the second husband; but the decree, it is said, originated 
 in mistake ;(<) and was reversed in the house of lords on appeal. (ji) 
 
 3. The case of the wife's equitable estate in lands of freehold or of 
 inheritance, presents in the main the same general similarity to that 
 of her legal estate in like lands as has been noticed in the case of 
 chattels real. Thus the husband without the wife can, in the case of 
 the equitable as in that of the *legal interest, convey an estate r*(332-j 
 for the joint lives of himself and his wife, or for his own life >- -• 
 after issue born. So he and his wife conjointly can, by deed acknow- 
 ledged by the latter under the Fines and Recoveries Act, dispose of the 
 equitable as of the legal interest, and bar an equitable entail as they 
 might a legal entail, by deed enrolled in chancery. But according to 
 Lord Cottenham's decision in Sturgis v. Champnej-s, the sole acts of the 
 husband cannot affect the wife's equity to a settlement ; and his power 
 over the equitable interest is, in this respect, less extensive than that 
 which he possesses over the legal. And it has been held, that the mere 
 
 [l) Lord Corteret v. Paschal, 3 P. W. 201, per Lord King. But this was before 
 the case of Purdew v. Jackson, 1 Russ. 1. 
 
 (m) S. C. ib. 19T. {n) Fitzgerald v. Fitzgerald, 8 Com. B. R. 611. 
 
 (o) Bates V. Dandy, 2 Atk. 207 : Packer v. Wyndham, Pr. Ch. 412, see 418. 
 
 (p) Walter v. Saunders, 1 Eq. Ca. Ab. 58 ; Incledon v. Northcote, 3 Atk. 430, 
 see 435 ; and see Mitford v. Mitford, 9 Yes. 99 ; Hore v. Becher, 12 Sim. 4G5. 
 
 {q) Jones v. Gibbons, 9 Vesey, 407 ; and see Rees v. Keith, 11 Sim. 388. 
 
 (r) Tudor v. Sarayne, 2 Vern. 270; Barton v. Briscoe, Jac. 603; Knight v. 
 Knight, 6 Sim. 121 ; Benson v. Benson, ib. 126 ; and see Howard v. Hooker, 2 Ch. 
 Re. 81 ; Edmonds v. Deunington, cited Carleton v. Earl of Dorset, 2 Vern. 17. 
 
 (s) 1 Ch. Ca. 307. 
 
 \t) See Sanders v. Page, 3 Ch. Re. 224 ; but see Pitt v. Hunt, 1 "^ ern. 18. 
 
 \u) 1 Vern. 7.
 
 514 LETVIN ON THE LAW OF TRUSTS, ETC. 
 
 circumstance of the existence of a jointure-term preceding the estate of 
 a, feme covert tenant in tail in possession subject to the term, sufficiently 
 renders the wife's estate equitable to entitle her to a settlement on a bill 
 filed by her.(i') 
 
 The effect of the husband, or the husband's assignee, procuring a con- 
 veyance of the legal estate so as to clothe his equitable interest therewith, 
 must be the same as in the case of an equitable term of years adverted 
 to above. 
 
 4. We now proceed to the consideration of the wife's separate estate. 
 Where property is settled to the separate use of a feme covert, unques- 
 tionably it is competent to her, unless her power of anticipation be 
 restrained,(?«) and without the concurrence of her trustees, unless the 
 terms of the settlement require it,(:x) to deal with the property directly 
 and expressly, precisely in the same manner as if she were a feme sole. 
 
 The general principle that governs the law of separate use was laid 
 down by Lord Thurlow, and has been recognized by the highest authori- 
 ties, viz., that a "feme covert, acting with respect to her separate pro- 
 perty, is competent to act in all respects as if she were 2, feme sole!'' {if) 
 P^pr,q-i *A feme covert, therefore, as regards her separate property, 
 L J sues separately by her next friend, and may obtain an order to 
 answer separately,(.~) and if out of the jurisdiction be served with pro- 
 cess by leave of the court,(a) will be bound by a submission in her bil^Z*) 
 or answer,(o) or by a contract for sale,(fZ) and her declarations may be 
 read in evidence against her,(e) and she will be liable to an attachment 
 for want of answer where she answers separately,(/) and similarly for 
 disobeying the order of the court in a suit to which she is a party in re- 
 
 (w) Worthara v. Peraberton, 1 De Gex & Sm. 644. 
 
 [w) The words " without power of anticipation" are those most commonly used 
 to deprive a feme of the power of forestalling the income, but this phraseology 
 need not necessarily be adopted, as it is a question of intention upon the whole of 
 the instrument whether her power of anticipation was or not to be restrained. 
 See Ross's Trusts, 1 Sim. N. S. 199; Scott v. Davis, 4 M. & Cr. 89; Doolan v. 
 Blake, 3 Ir. Ch. Re. 349, and cases cited ib. 
 
 {x) Grigby v. Cox, 1 Ves. 518, per Lord Hardwicke ; Dowling v. Maguire, Rep. 
 t. Plunket, 19, per Lord Plunket. 
 
 {y) Hulme v. Tenant, 1 B. C. C. 20. 
 
 (2) Jackson v. Haworth, 1 Sim. & St. 161. 
 
 (a) Copperthwaite v. Tuite, 13 Ir. Eq. Re. 68. 
 
 \h) Allen V. Papworth, 1 Ves. 163. 
 
 (c) Clerk v. Miller, 2 Atk. 379; Bailey v. Jackson, C. P. Cooper's Rep. 183V-8, 
 495. Husband and wife put in a joint answer, and the wife admitted certain in- 
 dentures to be in her possession and claimed the estates to which the indentures 
 related to her separate use for her life. The plaintiff moved for production, but 
 it was argued that the answer was the husband's and could not be read as an ad- 
 mission by the wife. However, the court said though there was some logical dif- 
 ficulty, there was none in substance. That if the wife claimed the benefit of the 
 separate use she must take it with its disadvantages, and ordered the production 
 by the wife, and that the husband should permit her to produce. Cowdery v. 
 Way, V. C. Knight Bruce, 2d Nov. 1843; and see Callow v. Howie, 1 De Gex & 
 Sm. 534; Darbishire v. Home, 3 De Gex, Mac. & Gor. 113. 
 
 {d) Davidson v. Gardner, Vend. & Purch. 891, 11th ed. ; Stead v. Nelson, 2 
 Beav. 248 ; and see Harris v. Mott, 14 Beav. 169. 
 
 (e) Peacock v. Monk, 2 Ves. 193, per Lord Hardwicke. 
 
 {/) Graham v. Fitch, 2 De Gex & Sm. 246; Taylor v. Taylor, 12 Beav. 271.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 515 
 
 spect of her separate estate,(r/) or her separate property may be ordered 
 to be sequestered. (A) 
 
 The courts have further determined, that if, without any direct or 
 express reference to her separate property, a /erne covert bind herself by 
 any ivrttten instrument, the implication of law is, that she meant to 
 charge her separate estate, for except with reference to that the instru- 
 ment was without meaning and nugatory. Thus, if a /erne covert execute 
 a bond,(/) even to her husband,(Z:) or join in a bond with ^another pgo^-i 
 even with her husband,(?) or sign a promissory note,[7n) or bill L '^ -1 
 of exchange,(n) or agree to take a leasehold house for a terms of years,(o) 
 though she is not personally bound, yet her separate estate is liable. So 
 if she give a written retainer to a solicitor, it entitles him to have his 
 costs out of her separate estate, (p) though the circumstance that the 
 solicitor of a husband and wife has transacted business relating to the 
 separate estate is not "jjc?- se" sufficient to make that estate directly 
 liable for the amount of his costs ;{q) and if she contract for the purchase 
 of an estate, she may enforce it against the vendor, as it creates a valid 
 obligation in respect of her property.(/-) And it is immaterial whether 
 the contract expressly refer to the separate property, or whether the 
 vendor knew or not that purchaser was a married woman. (s) In one 
 case a /erne executed a bond he/ore her marriage, and her property having 
 been settled upon her marriage to her separate use, the obligee filed his 
 bill against the husband and wife to have the debt paid out of her sep- 
 arate estate, and the husband having absconded, the court made the 
 order, (i!) 
 
 It has been stated that a /c?»e covert makes her separate property 
 liable by the execution of any written instrument : to that extent there 
 can be no question ; but the principles upon which the liability was held 
 to attach were until recently involved in much doubt. Thus it was con- 
 sidered by Lord Loughborough, (?<) Sir J. Leach, (?:) and the late vice- 
 
 (g) Otway v. Wing, 12 Sim. 90. 
 
 (h) Keoo-h V. Cathcart, 11 Ir. Eq. Rep. 280 ; and see cases cited ib. 
 
 (j) Lillia V. Airey, 1 Yes. jun. 277; Norton v. Turvill, 2 P. W. 144; Peacoclc 
 v. Monk, 2 Ves. 193, per Lord Lougliborough ; Tullet v. Armstrong, 4 Beav. 323, 
 per Lord Langdale. 
 
 (k) Heatley v. Thomas, 15 Ves. 596. 
 
 (l) Heatley V. Thomas, 15 Ves. 596; Stanford v. Marshall, 2 Atk. 68; Hulme 
 v. Tenant, 1 B. C. C. 20. 
 
 (m) Bullpin v. Clarke, 17 Ves. 365; Field v. Sowle, 4 Russ. 112; Tullett v. 
 Armstrong, 4 Beav. 323, per Lord Langdale; Fitzgibbon v. Blake, 3 Ir. Ch. Re. 328. 
 
 (n) Stuart v. Kirkwall, 3 Mad. 387; Coppin v. Gray, 1 Y. & C. Ch. Ca. 205 ; 
 Tullett V. Armstrong, 4 Beav. 323, per Lord Langdale. But where there is iio 
 separate use a married woman cannot contract under the Fines and Recoveries 
 Act. Crofts V. Middleton, 2 Kay & J. 194. 
 
 (o) Gaston v. Frankum, 2 De Gex & Sm. 561 ; S. C. on appeal, 16 Jur. 507. 
 
 Ip) Murray v. Barlee, 4 Sim. 82 ; 3 M. & K. 209. 
 
 (q) Callow V. Howie, 1 De Gex & Sm. 521 ; and see Re Pugh, IT Beav. 336. 
 
 (r) Bowling v. Maguire, Rep. t. Plunket, 1 ; but see Chester v. Piatt, Vend. & 
 Purch. 173, 13th edit. 
 
 (s) Bowling v. Maguire, Rep. t. Plunket, 1. 
 
 (t) Biscoe V. Kennedv, cited Hulme v. Tenant, 1 B. C. C. 17. 
 
 (w) See Bolton v. Williams, 2 Ves. jun. 142, 150, 156; Whistler v. Newman, 4 
 Ves. 145. . ., 
 
 (v) See Greatley v. Noble, 3 Mad. 94 ; Stuart v. Kirkwall, ib. 389 ; Aguilar v.
 
 516 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 ^ „^-, chancellor *of England, («•) that the separate estate of a feme 
 [ '^^^J covert was not subject to her general engagements, and that upon 
 the notion that a feme covert could not contract, but that every dealing 
 in respect of her estate was in the nature either of an appointment or of 
 a disposition. (x) However, it is clear that a /erne covert can, in respect 
 of her separate use, contract,(?/) and that her written obligations are not 
 to be viewed as appointments, and do not operate merely by way of dis- 
 position. The principles that govern the liability of a feme's separate 
 property have been very satisfactorily explained by Lord Brougham and 
 Lord Cottenham. 
 
 " The wife," said Lord Brougham, " has a separate estate subject to 
 her own control, and exempt from all other interference or authority ; 
 if she cannot affect it, no one can, and the very object of the settlement 
 which vests it in her exclusively is to enable her to deal with it as if 
 she were discovert. At first the court seems to have supposed that 
 nothing could touch it but some real charge, as a mortgage, or an instru- 
 ment amounting to an execution of a power (where that view was sup- 
 ported by the nature of the settlement,) but afterwards her intention 
 was more regarded, and the court only required to be satisfied that she 
 intended to deal with her separate property. When she appeared to 
 have done so, the court held her to have charged it, and made the trus- 
 tees answer the demand thus created against it. A good deal of the 
 nicety that attends the doctrine of powers thus came to be imported into 
 this consideration of the subject. If the wife did any act directly 
 charging the separate estate, no doubt could exist, just as an instrument 
 
 j^ expressing to be in execution of a power was always of course 
 
 L '^ J ^considered as made in execution of it ; but so if by any refer- 
 ence to the estate it could be gathered that such was her intent, the 
 same conclusion followed. Thus if she only executed a bond, or made a 
 note, or accepted a bill, because those acts would have been nugatory if 
 done by a feme covert without any reference to her separate estate, it 
 was held that she must be intended to have designed a charge on that 
 estate, since in no other way could the instruments thus made by her 
 have any validity or operation, in the same manner as an instrument 
 which can mean nothing if it means not to execute a power, has been 
 held to be made in execution of that power, though no direct reference 
 is made to the power. But doubts have been, in one or two instances, 
 expressed as to the efi'eet of any dealing, whereby a general engagement 
 only is raised, that is, where she becomes indebted without executing 
 
 Aguilar, 5 Mad. 418 ; Field v. Sowle, 4 Russ. 114 ; Chester v. Piatt, V. & P. 173, 
 13th ed. 
 
 {ic) See Murray v. Barlee, 4 Sim. 82 ; and see Digby v. Irvine, 6 Ir. Eq. Re. 149. 
 
 {x) See Bolton v. Williams, 2 Ves. jun. 150; Greatley v. Noble, 3 Mad. 94; 
 Stuart v. Kirkwall, ib. 389 ; Aguilar v. Aguilar, 5 Mad. 418 ; Field v. Sowle, 4 
 Russ. 114. 
 
 {y) See Owens v. Dickenson, 1 Cr. & Ph. 53 ; Dowling v. Maguire, Rep. t. 
 Plunket, 19; Master v. Fuller, 4 B. C. C. 19; Stead v. Nelson, 2 Beav. 245; 
 Wainwright v. Hardisty, 2 Beav. 363 ; Bailey v. Jackson, C. P. Cooper's Rep. 
 1837-8, 495; Francis v. Wigzell, 1 Mad. 261; Crosby v. Church, 3 Beav. 489; 
 Tullett V. Armstrong, 4 Beav. 319.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 517 
 
 any written instrument at all.(.t) / own lean perceive no reason for 
 drawing any such distinction. If in respect of her separate estate the 
 wife is in equity taken as a feme sole, and can charge it by instruments 
 absolutely void at law, can there be any reason for holding that her lia- 
 bility, or, more properly, her power of affecting the separate estate, shall 
 only be exercised by a written instrument ? Are we entitled to invent 
 a rule to add a new chapter to the Statute of Frauds, and to require 
 writing where that act requires none ? Is there any equity reaching 
 written dealings with the property, which extends not also to dealing in 
 other ways, as by sale and delivery of goods ? Shall necessary supplies 
 for her maintenance not touch the estate, and yet money furnished to squan- 
 der away at play be a charge on it, if fortified by a scrap of writing ? No 
 such distinction can be taken upon any conceivable principle."(o) 
 
 "A writing," said Lord Cottenham, " is operative upon a /e7/?e's sepa- 
 rate estate, not by way of the execution of a power, although that has 
 been an expression sometimes used, but, as *I apprehend, very pgo--! 
 inaccurately used in cases where the court has enforced the con- L -^ 
 tracts of married women against their separate estate. It cannot be an 
 execution of the power, because it neither refers to the power, nor to the 
 subject-matter of the power, nor, indeed, in many of the cases has there 
 been any power existing at all. Besides, as it was argued in the case of 
 Murray v. Barlee, if a married woman enters into several agreements of 
 this sort, and all the parties come to have satisfaction out of her separate 
 estate, they are ^aid jxiri j^assu ; whereas, if the instruments took effect 
 as appointments under a power, they would rank according to the priori- 
 ties of their dates. It is quite clear, therefore, that there is nothing in 
 such a transaction which has any resemblance to the execution of a 
 power ; what it is, it is not easy to define. It has sometimes been 
 treated as a disposing of the particular estate ; but the contract is silent 
 as to the separate estate, for a promissory note is merely a contract to 
 pay, not saying out of what it is to be paid, or by what means it is to be 
 paid J and it is not correct, according to legal principles, to say that a 
 contract to pay is to be construed into a contract to pay out of a particu- 
 lar property, so as to constitute a lien on that property. Equity lays 
 hold of the separate property, but not by virtue of anything expressed in 
 the contract, and it is not very consistent with correct principles to add 
 to the contract that which the party has not thought fit to introduce into 
 it. The view taken of the matter by Lord Thurlow, in Hulme v. Tenant, 
 1 B. C. C. 16, is more correct. According to that view, the separate 
 property of a married woman being a creature of equity, it follows that 
 if she has a power to deal with it, she has the other power incident to 
 property in general, namely, the power of contracting debts to be paid 
 out of it ; and in as much as her creditors have not the means at law of 
 compelling payment of those debts, a court of equity takes upon itself to 
 
 (?) It may be observed that the hite Y. C. of England ^Yhile expressing his 
 opinion upon the hearing below, that the general engagements of the feme covert 
 did not affect the separate estate, does not appear to have conceived that any dis- 
 tinction existed between a written and unwritten obligation ; see 4 Sim. 94. 
 
 (a) Murray v. Barlee, 3 M. & K. 223.
 
 518 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 give effect to them, not as personal liabilities, but by laying hold of the 
 separate property as the only means by which they can be satisfied. I 
 observe that in Clinton v. Willes, 1 Sug. Pow. 208, n., Sir Thomas 
 Plumer suggested a doubt whether it was necessary that the feme's 
 P^poo-i engagement should be ^secured by writing : it certainly seems 
 L J strange that there should be any difference between a contract in 
 writing, when no statute requires it to be in writing, and a verbal pro- 
 mise to pay. It is an artificial distinction not recognized in any other 
 case. On that point, however, I give no opinion at present. 'YJ) 
 
 The judgments of Lord Cottenham and Lord Brougham in the cases 
 last referred to must be held to have clearly established that the deal- 
 ings of the feme covert with her separate estate do not operate by way 
 of appointment or disposition, and if this be so, it is difficult to see on 
 what ground any valid distinction can be sustained between verhal and 
 loritten engagements, the point which was left undecided by Lord Cot- 
 tenham. If a written promise to pay, as a promissory note, referring 
 neither to the instrument of trust nor to the property, be held to bind 
 the separate estate, upon what ground can a verbal assumpsit be dis- 
 tinguished ? So long as it could be maintained that the dealing of the 
 married woman operated by way of disposition of the separate estate, 
 there seemed room for contending that the disposition, as being an 
 assignment of a trust, must have been in writing;(c) but so soon as it is 
 admitted that the general engagement in writing binds, it seems impos- 
 sible to resist the conclusion that a verhal general engagement must 
 bind likewise. When it is attempted to imply a promise from mere acts 
 of the feme, which may be construed as intended to bind either her 
 husband or herself, there seems room for a distinction, but an express 
 verbal promise, and an express written promise to pay must, it is con- 
 ceived, stand on the same footing. The question, however, is one which 
 still requires further elucidation by decision, and in a late case we find 
 Vice-Chancellor Kindersley expressing himself in the following guarded 
 language : 
 
 ''It has not yet, indeed, been made the subject of positive decision, 
 that the principle embraces a feme's verbal engagements or cases of 
 common assumpsit. Considering, however, the opinions expressed and 
 p^/^oq-i t^e reason of the thing, I think *it very probable that when that 
 L -I question arises for decision it will be decided in the affirma- 
 tive."(fZ) 
 
 It may be suggested that there is still another distinction, viz., that 
 allowing the general engagements of the wife, whether written or un- 
 written, to bind her separate estate, yet, supposing the doctrine of these 
 cases to be founded on the intention to charge the settled property as 
 implied by the circumstance that otherwise the act would be nugatory, 
 the same principle will not apply where it was clearly not the intention 
 of the feme to create any charge, but, if any exist, it arises upon an 
 assumpsit in law, wholly disconnected from the actual intention. In 
 
 (6) Owens v. Dickenson, 1 Cr. & Ph. 53. (c) See page 600, supra. 
 
 [d) Vaughan v. Vanderstegen, 2 Drew. 183 ; and see Newcomen v. Hassard, 4 
 Ir. Ch. Re. 274.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 519 
 
 accordance nvith this view it was held that where a feme covert granted 
 an annuity which was void for want of a proper memorial, the annuitant 
 had no remedy against the separate estate for the repayment of the 
 purchase-money, as no implication of an assumpsit could be raised 
 against her.(e) So where a feme covert misapplied some trust-money, 
 and had she been ^feme sole would have been liable for the amount, the 
 court thought the cestui que trust could not charge the separate estate, 
 in the total absence of the /erne's intention to make her property lia- 
 ble. (/) However, there appears to be but a thin partition between the 
 general engagements of a, feme not in writing, and an assumpsit raised 
 in law upon facts done alio intuitu ; and considering that recent deci- 
 sions have rather regarded the /erne covert as in all respects ^fcme sole 
 to the extent of her separate estate, it may not be safe to rely upon 
 cases which have evidently proceeded upon principles that have since 
 been abandoned. 
 
 Where a feme covert was privy to a breach of trust affecting the fund 
 of which she was tenant for life to her separate use, it was decided by 
 Lord Loughborough that she could proceed against the trustee, and compel 
 the replacement of the *fund.(^) It would seem difficult to sup- r*g^Q-| 
 port this decision, even on the assumption that the wife's deal- L J 
 ings operated by way of disposition. And in a case before Lord Langdale, 
 where a married woman had concurred actively in dealings with the 
 trust fund, amounting to a breach of trust, and she subsequently to her 
 husband's decease filed a bill to have the trust fund replaced, his lord- 
 ship treated the acts of the feme as an actual disposition of the fund to 
 the extent of her separate estate therein, and made the separate estate 
 available in partial exoneration of the trustee's liability, (/i) 
 
 In a subsequent case before Lord St. Leonards, in Ireland, his lordship 
 expressed himself thus : '' I hope that the court may feel itself at liberty 
 to treat a woman entitled for her separate use in possession as sui Juris, 
 so as to bind her interest where she prevails upon her trustees to commit 
 a breach of trust." But his lordship in the same case in which the 
 separate use of the /erne covert was to arise upon a contingency, viz., the 
 insolvency of the husband, which had not yet occurred, held that the 
 feme covert could not by any act bind her interest. (/) 
 
 Supposing a person entitled to establish his claim against the separate 
 estate, the limits of his remedy appear to be these. He cannot file a 
 bill against the /erne covert as the sole defendant and personally liable. 
 <' There is no case," said Sir T. Plumer, " in which this court has made 
 
 (e) Jones v. Harris, 9 Ves. 486; Aguilar v. Ajruilar, 5 Mad. 414; Bolton v. 
 Williams, 4 B. C. C. 297; S. C. 2 Yes. jun. 138; but in the latter case, when be- 
 fore Lord Thurloxv, the point was not argued, and Lord Loughborough, on the 
 rehearing, thought he had no jurisdiction to decide it. 
 
 (/■) Greatley V. Noble, 3 Mad. 79; and see Nantes v. Corrock, 9 Yes. 182; 
 Stuart V. Kirkwall, 3 Mad. 387. 
 
 {g) Whistler v. Newman, 4 Yes. 129; see observations of Lord Eldon on this 
 case; Parkes v. White, 11 Yes. 223. 
 
 {h) Crosby v. Church, 3 Beav. 485 ; and see Brewer v. Swirlcs, 2 Sm. & Giff. 
 219; and the observations of L. J. (then Y. C.) Turner in Hughes v. Wells, 9 
 Hare, pp. 772, 773 ; Hanchett v. Briscoe, 22 Beav. 496. 
 
 {i) Mara v. Manning, 2 Jones & Lat. 311.
 
 520 LEWIN ox THE LAW OP TRUSTS, ETC. 
 
 a persona? decree against a /t'?ne covert. She may pledge her separate 
 property and make it answerable for her engagements ; but where her 
 trustees are not made parties to a bill and no particular fund is sought 
 to be charged, but only a personal decree against her, the bill cannot 
 be sustained. 'Y/i;) But the party aggrieved may file a bill against her 
 and her trustees, (and the death of the husband, which puts an end to 
 the separate use, either after the filing of the bill,(Z) or even before 
 r*rm i*'("0 ^^^^ ^^^ ^^^^at the *suit,) and may pray payment of his 
 L -I demand out of vAX j)ersonal estate in the hands of the trustees to 
 which she is entitled absolutely, (including arrears of rents,) and also 
 out of the accruing interest or rents, if there be no clause against antici- 
 pation, until the claim and costs have been satisfied. (w) 
 
 "Determined cases," said Lord Thurlow, "seem to go thus far, that 
 the general engagement of the wife shall operate upon \ieY personal pro- 
 perty, shall apply to the rents andprofits of her real estate, and that her 
 trustees shall be obliged to apply j^^rsojicd estate, and rents and ])7'oJits 
 lohen they arise, to the satisfaction of such general engagement ; but this 
 court has not used any direct process against the separate estate of the 
 wife, and the manner of coming at the separate property of the wife has 
 been by decree to bind the trustees as to personal estate in their hands, 
 or rents and profits, according to the exigency of justice or of the engage- 
 ment of the wife, to be carried into execution." His lordship then adds, 
 " I know of no case where the general engagement of the wife has been 
 carried to the extent of decreeing that the trustees of her real estate 
 shall make conveyance of that real estate, and by sale, mortgage, or 
 otherwise, raise the money to satisfy that general engagement on the 
 part of the wife."(o) But it is conceived that if in any case the instru- 
 ment were so specially worded as to place the corpus also at the disposal 
 of the. feme covert as entitled to it for her separate use, the engagements 
 of the wife would, upon principle, bind the whole interest settled to the 
 the separate use, whether corpus or income. 
 
 If there be a clause against anticipation, the court directs payment out 
 of the /erne's separate estate, except that part of which she has no power 
 of anticipation. (;:)) But where there is a restraint upon anticipation the 
 r*64'?l 6°o^g^™^^ts oi tbe *wife will operate upon any arrears of the 
 '- "'-' separate use that may have already accrued. (5) 
 
 In one case the court refused to hold the bank annuities of a feme 
 covert liable, as stock could not in the case of a person sui Juris be 
 taken in execution ;(?•) but now that stock in available to the creditor,(s) 
 the distinction may be considered as gone. 
 
 (' 
 (^ 
 
 (k) Francis v. Wigzell, 1 Mad. 262. {1} Field v. Sowle, 4 Russ. 112. 
 
 (m) Heatley V. Thomas, 15 Ves. 596; but see Keuare v. Delavall, 1 Vern. 326. 
 
 (n) Hulme v. Tenant, 1 B. C. C. 20 : Standford v. Marshall, 2 Atk. 68 ; Murray 
 V. Barlee, 4 Sim. 82 ; 3 M. & K. 209 ; Field v. Sowle, 4 Russ. 112 ; Nantes v. Cor- 
 rock, 9 Ves. 182; Bullpin v. Clarke, 17 Ves. 365; Jones v. Harris, 9 Ves. 492, 
 493, 497; Stuart v. Kirkwall, 3 Mad. 387. 
 
 (0) Hulme V. Tenant, 1 B. C. C. 20, 21 ; and see Broughton v. James, 1 Coll, 26. 
 
 (p) Murray v. Barlee, 4 Sim. 95. 
 
 (?) Fitzgibbon v. Blake, 3 Ir. Ch. Re. 328. 
 
 (r) Nantes v. Corrock, 9 Ves. 182. («) 1 & 2 V.. c. 110, s. 11.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 521 
 
 After the death of the /erne covert the creditor may file a bill for pay- 
 ment of his debt out of her separate estate, (?) and whei*e there are other 
 creditors, specialties and simple contract debts will be paid pari passit, 
 as the separate property is considered equitable assets. (w) 
 
 A. feme covert has, as incident to her separate estate, a power to dis- 
 pose of it, and of all accumulations therefrom, by testamentary instru- 
 ment in the nature of a will.(y) And if a/emc leave a will and make 
 bequests, the usual course of administration will be observed. Thus the 
 undisposed of estate will be first applied, then, general legacies, and, if 
 there still be a deficiency, the specific legacies. (?<;) 
 
 If a feme having personal estate settled to her separate use die with- 
 out disposing of it, the husband will be entitled to it; as to so much 
 thereof as may consist of cash, furniture, or other personal chattels in 
 his marital right, and as to so much as may consist of " choses in action," 
 upon taking out administration to his wife. (a;) 
 
 If the husband receive the wife's separate income, though there was a 
 clause against anticipation, (^) and the wife survives, it is clear that she 
 or her personal representative cannot claim against his estate more than 
 one year's arrears, but it is still sub judice whether the wife or her repre- 
 sentative *can claim even so much. Lord Macclesfield, (2) Lord j-^p ,0-1 
 Talbot,(a) Lord Loughborough,(&^ Sir "W. Grant,((?) and Lord L J 
 Chancellor Brady((:Z) held that the wife or her representative could claim 
 nothing. On the other hand, in the judgment of Sir T. Sewell,(e) Lord 
 Camden,(/) Lord King,(^) Lord Hardwicke,(/i) Lord Eldon,((') Sir J. 
 Leach,^^;) Sir J. Stuart,^/) and Lord St. Leonards,^??!,) the husband's 
 estate is liable to an account for one year. The more commonly received 
 opinion in the profession is thought to be that an account for one year 
 should be given. (n) 
 
 {t) See Owens v. Dickenson, 1 Cr. & Phil. 48 ; Gregory v. Lockyer, 6 Mad. 90. 
 
 [u) Anon. 18 Ves. 258; Owens v. Dickenson, 1 Cr. & Ph. 53, per Lord Cot- 
 tenham. 
 
 [v) Fettiplace v. Gorges, 1 Ves. jun. 46; Humpherey v. Richards, 2 Jur.N. S. 432. 
 
 \w) Norton v. Turvill, 2 P. W. 144. 
 
 \z) Molonv V. Kennedy, 10 Sim. 254; Bird v. Peagrum, 13 Com. B. E. G39; 
 Johnstone v.'Lumb, 15 Sim. 308 ; Drnry v. Scott, 4 Y. & C. 2G4. 
 
 (.y) Rowley v. Unwin, 2 Kay & J. 138. (z) Powell v. Hankey, 2 P. W. 82. 
 
 (a) Fowler v. Fowler, 3 P. W. 353. (N. B. A case of pin-money.) 
 
 (6) Squire v. Dean, 4 B. C. C. 325 ; Smith v. Camelford, 2 Ves. jun. TIG. 
 
 (c) Dalbiac v. Dalbiac, 16 Ves. 126. {d) Arthur v. Arthur, 1 1 Jr. Eq. Re. 511, 
 
 (e) Burdon v. Burdon, 2 Mad. 286, note. (/) lb. p. 287, note. 
 
 {g) Countess of Warwick v. Edwards, 1 Eq. Ca. Ab. 170. In Thomas v. Ben- 
 net, 2 P. W. 341, his lordship probably held only that ten years' arrears could not 
 be given. 
 
 (h) Townshend v. Windham, 2 Ves. sen. 7 ; Peacock v. Monk, 2 Ves. sen. 190 ; 
 Aston V. Aston, 1 Ves. sen. 267. 
 
 (i) Parkes v. White, 11 Ves. 225; Brodie v. Barry, 2 Ves. & B. 36. 
 
 (k) Thrupp V. Harman, 3 M. & K. 513. (/) Lea v. Grundy, 1 Jur. N. S. 953. 
 
 (m) Property as administered, by D. P., p. 1G9. 
 
 (w) In Howard v. Digby, 2 CI. & Fin. 643, 665, Lord Brougham thought that in 
 separate rise, as distinguished from phi-moner/, the wife or her representatives could 
 recover the whole arrears, but this is clearly untenable ; see Arthur v. Arthur, 11 
 Ir. Eq. Rep. 513. In the same case the V. C. of England, when the cause was 
 before hira, hesitated whether the general rule gave an account for a year or none 
 at all; see Digby v. Howard, 4 Sim. 601.
 
 522 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 Tlie principle upon wliich tlie relief is tlius limited is that tlie court 
 presumes the acquiescence of the wife in the husband's receipt dc anno 
 in annum. If, therefore, the wife did not in fact consent to the hus- 
 band's receipt, but remonstrated and required that the separate income 
 should be paid to herself, which was promised, the court will carry back 
 the account of the arrears to the time of the wife's assertion of her 
 claim. (o) But the court requires very clear evidence that the demand 
 
 - . .-, was seriously pressed by the wife, and will not charge the *hus- 
 L -I band's estate from any idle complaints against his receipt which 
 the wife may have occasionally made.Q:>) 
 
 As the court proceeds upon the notion of the wife's acquiescence, the 
 question arises where she is non compos, and so incapable of waiving her 
 right, whether the husband's estate shall not be liable for the entire 
 arrears; and it would seem that in such a case the husband's estate must 
 account for the whole, but that the husband's estate will be entitled to 
 an allowance for payments made for the wife's benefit, and which ought 
 properly to have fallen on her separate estate.(g') 
 
 In Howard v. Digby(?-) a woman's pin-money was distinguished from 
 ordinary separate use, and it was h'^ld as to pin-money that the wife's 
 representatives{s^ could make no claim to any arrears. The ground upon 
 which the house proceeded was, that pin-money was for the personal use 
 and ornament of the wife, and the husband had a right to see the fund 
 properly applied, and that if the husband himself found the necessaries 
 for which the pin-money was intended, the wife or her representative 
 could have no claim against the husband's estate when the requirements 
 for her personal use and ornament had ceased, (i) Lord St. Leonards has 
 justly questioned these principles,(ij) and it remains to be seen whether 
 Howard v. Digby will be followed, except under exactly similar circum- 
 stances. 
 
 In the foregoing discussion of the "separate use," no distinction has 
 been taken between real and personal estate. It must be observed, how- 
 ever, that in the case of realty it was formerly held that the feme covert 
 r*r4^n could not by virtue of *the separate use, if there were no express 
 L J power, dispose of the freehold, at least not for any larger interest 
 than during the coverture,(y) for between real and personal estate it was 
 
 (o) Ridout T. Lewis, 1 Atk. 269 ; Moore v. Moore, 2 Atk. 272 ; see Moore v. Earl 
 of Scarborough, 2 Eq. Ca. Ab. 156; Parker v. Brooke, 9 Ves. 583. 
 
 {p) Thrupp V. Harman, 3 M. & K. 512. 
 
 [q) Attorney-General v. Parnther, 3 B. C. C. 441, 4 B. C. C. 409; Howard v. 
 Digby, 2 CI. & Fin. 671, 673. 
 
 (r) 2 CI. & Fin. 634; 4 Sim. 588. 
 
 («) Lord Brougham considered that the wife herself might in her lifetime have 
 recovered one year's arrears; see 2 CI. & Fin. 643, 653, 659. 
 
 {t) Pin-money, said Lord Hardwicke, shall not be allowed for more than one 
 year, not merely on a supposal of her having given the arrears to her husband, but 
 on this ; that having lived with the husband she is supposed to have received satis- 
 faction that way; Aston v. Aston, 1 Ves. sen. 267 ; and see Fowler v. Fowler, 3 P. 
 W. 355. 
 
 (m) Law of Property as administered, by D. P., p. 162. 
 
 \v) Churchill v. Dibben, 2 Lord Kenyon's Rep. 2d part, 68, p. 84 ; case cited in 
 Peacock v. Monk, 2 Ves. 192 ; and see 2 Rop. Husb. and Wife, 182, 2d ed. ; 1 Sand, 
 on Uses, 345, 4th ed.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 523 
 
 said tliere was this distinction, that on the death of the fejnc in her hus- 
 band's lifetime, the absolute interest in the personal estate would devolve 
 on the husband, but the inheritance of the real estate would descend 
 upon the heir, who was not to be disinherited but in some formal mode. 
 However, the favour shown anciently to the heir, has in later times been 
 disregarded : and it is presumed that at the present day, if lands be con- 
 veyed to a trustee and his heirs upon trust as to the fee simple for a 
 feme covert " for her separate use," she may deal with the fee as if she 
 were a feme sole.[ic) It is simply a question of intention. A married 
 woman may have limited to her a power of disposition over a fee simple 
 estate, and if the separate use be so worded as to show that the separate 
 use was meant to extend not only to her life-interest but to the fee, she 
 ought, upon principle, to be able to deal with the absolute property by 
 virtue of the separate use, whether by act inter vivos, or by testamentary 
 instrument, as fully as she might in the case of personal estate. It can- 
 not, however, be said that the question is free from doubt. In a late 
 case in Ireland,(a;) Sir T. B. C. Smith, master of the rolls, appears to 
 have considered the freehold interests of the wife extending beyond her 
 own life settled to her separate use as forming a special exception ; and 
 where freehold and copyhold premises were devised to a feme covert for 
 her separate use, and the wife entered into a contract for sale and died, 
 having devised the property to her husband, who filed a bill against the 
 purchaser for specific performance, the court considered the question of 
 the wife's power to devise the estate as being too doubtful to r^g^g-i 
 ^compel the defendant to take the title in the absence of the L J 
 heir.(_y) 
 
 It has been decided that where a feme is dealing with property by 
 virtue of her separate use, the deed need not be acknowledged by her 
 under the Fines and Kecoveries Act.(s) 
 
 SECTION Yl. 
 
 OF JUDGMENTS AGAINST THE CESTUI QUE TRUST. 
 
 Before entering upon this topic, it may be useful to notice briefly how 
 legal interests stand afi"ccted by judgments. 
 
 At common lav: the plaintiff in the action had only two writs of exe- 
 cution open to him against the property of the defendant: the fieri facias, 
 to levy the debt de bonis et cataUis; and the levari facias, to levy \i dc 
 terris ct cataUis.{a) The execution under the latter writ affected no in- 
 terest in land of a higher description than a mere chattel interest, which 
 last the sheriff might sell in like manner as a personal chattel, and 
 affected not i\\Q possession of the lands,(Z^) but merely enabled the sheriff, 
 
 (w) See Stead v. Nelsou, 2 Beav. 245 ; Wainwright v. Ilardisty, lb. 363; Crosby 
 V. Church, 3 Beav. 485 ; Baggett v. Meux, 1 Coll. 138 ; 1 Phill. 62'? ; see p. 628 ; 
 Major V. Lansley, 2 R. & M. 355. 
 
 (z) Newcomen v. Hassard, 4 Ir. Ch. Rep. 274. 
 
 (y) Harris v. Mott. 14 Beav. IGO. (2) Newcomen v. Hassard, 4 Ir. Ch. Rep. 268. 
 
 (a) Finch's Law, 471. (6) Id. 471 ; Sir E. Coke's case, Godb. 290.
 
 524 LEW IX ON THE LAW OF TRUSTS, ETC. 
 
 besides taking the chattels, to levy the debt from the present profits, as 
 from the rents payable by the tenantS;(c) and the emblements,((?) that is, 
 the corn and other crops at the time growing on the lands. (e) If the 
 sheriff, when he made his return, had not levied the full amount of the 
 debt, a new levari facias might have issued, to be executed by the sheriff 
 in like manner.(/)(l) 
 
 ^^ *In order to provide for the creditor a more effectual remedy, 
 L J the Statute of Westminster((/) introduced the writ of elegit, and 
 enacted, that when debt was recovered or knowledged, or damages 
 awarded, the suiter should at his cJioice(Ji) have a writ of Jieri facias(^i) 
 from the debtor's lands and chattels, or that the sheriff should deliver to 
 him all the chattels of the debtor, except his oxen and beasts of the 
 plough, and one-half of his land, until the debt should be levied ujwn a 
 reasonable price or extent. 
 
 It was by virtue of this statute that judgment creditors were first 
 enabled to sue execution of one moiety of the debtor's lands, whether 
 vested in him at the time of the judgment or subsequently acquired. 
 
 Chattel interest in lands were, even be/ore the Statute of Frauds, not 
 bound until after execution awarded. And since the statute, according 
 to the better opinion, they have, as falling within sect. 16, been bound 
 only from the delivery of the writ to the sheriff; and it would seem that, 
 by the 19 & 20 Vict. c. 97, s. 1, the protection conferred by the Statute 
 of Frauds has, in favour of persons bona fide and for value acquiring a 
 title without notice, been extended to the time of actual seizure. (7i) 
 
 ._ *We now come to the inquiry, what is the effect of judgments 
 L J upon interests in eqxdty ? 
 
 (r) Finch's Law, 472; Davy v. Pepys, Plowd. 441. 
 
 {d) 4 Com. Ab. 118. 
 
 (e) Harbert's case, 3 Re. 11 b ; 2 Inst. 394 ; 2 Bac. Ab. Execution (C) 4, note (5). 
 
 (/) F. N. B. 265. {g) 13 Ed. 1, st. 1, c. 18. 
 
 \h) Whence the terra elegit. 
 
 (i) In these words the legislature meant to include the two writs oi fieri facias 
 and levari facias. 2 Inst. 395. 
 
 {k) The word ''goods" used in the latter act is the same as that used in the 
 Statute of Frauds. The only doubt would seem to be whether the words actual 
 seizure can be held to apply to a chattel real. 
 
 (1) There was also another species of levari facias, of which the plaintiff might 
 under particular circumstances, have indirectly availed himself. In case the de- 
 fendant was outlawed in the action, the sheriff, on the issuing of the capias utle- 
 gatum, took an inquisition of the lands of the debtor, and extended their value, 
 and made his return to the Exchequer. A levari facias from the crown then fol- 
 lowed, commanding the sheriff to levy the extended value decxitibus, from ih&issues 
 of the lands, till the plaintiff should be satisfied his debt. These issues were de- 
 fined to be the "rents and revenues of the land, corn in the grange, and all move- 
 ables, except horse, harness, and household stuff." 13 Ed. 1, c. 39, st. 1 ; 2 Inst. 
 453. The sheriff might have agisted or mown the grass. Britten v. Cole, 5 Mod. 
 118, per Lord Holt. But if at the date of the inquisition, the agistment was 
 already let, the money agreed to be paid was a sum in gross, and was not subject 
 to the levari facias. S. C. 1 Raym. 301, per eundem. The cattle of a stranger, if 
 levant and couchant on the land, were seizable under the writ, as included in the 
 word " issues." S. C. lb. 305. The lands were bound by the levari facias from. 
 the date of the writ, so that any subsequent disposition, though it served to pass 
 the freehold and possession, yet did not interrupt the king's title to the profits, 
 lb. 307, per Lord Holt.
 
 PROTERTIES OF CESTUI'S QUE TRUST ESTATE. 525 
 
 First, with respect to i\iQ fieri facias, it is clear that under the system 
 of uses no relief could have been granted ; for the creditor, coming in by 
 operation of law, did not possess thatp/vY-i/y of estate which could alone 
 confer upon him the right to sue a suhjioina. During the earlier period 
 of trusts the same technical notions prevailed ; but Lord Nottingham 
 introduced a more liberal principle, and established, what is now law, 
 that a creditor who was prevented from executing the legal process by 
 the interposition of a trust, might come into chancery, and prosecute 
 an equitable fieri facias.{T) 
 
 But as the analogy to law must be strictly pursued, the trust of a chattel 
 cannot be attached in equity until the writ of execution has been actually 
 sued out ; for till that time there is no Jien upon the debtor's effects, 
 which is the very ground of the application. T/w.) 
 
 And as equity only follows, and does not enlarge the law, the judg- 
 ment creditor has no title to relief where the chattel of which the trust 
 has been created, is not in itself amenable to any legal process. An 
 opinion, indeed, is subjoined to the case of Horn v. Horn in Ambler,(?<) 
 that a trust of stuck might, before the late act, have been taken by a 
 judgment creditor in equitable execution ; and Taylor v. Jones,(o) before 
 Sir W. Fortescue, M. R., was even a decision to. the same effect; but 
 such a doctrine, inasmuch as stock could not have been reached at law, 
 was clearly contrary to all principle, and afterwards incurred the express 
 disapprobation of Lord Thurlow,(jj) Lord Planners, (g) Sir W. Mac- 
 Mahon,^/-) Sir Archibald *Macdouald,(x) and Lord Eldon •,[t^ r^piQ-i 
 Lord Thurlow observing, that the opinion in Horn v. Horn was L j 
 so anomalous and unfounded, that forty such would not satisfy his 
 mind.(jt) Now, however, by the late act for extending the remedies 
 of creditors {1 k 2 Vict. c. 110, s. 14,) a judgment debtor's interest in 
 stock, whether legal or equitable, is rendered available for the payment 
 of debts.(i;) 
 
 The judgment creditor is of course entitled to the same relief (subject 
 to such restrictions as we have mentioned) against the equity of redemp- 
 tion of a chattel. (<f) 
 
 As regards the levari facias, a court of equity would, it is presumed, 
 as in the instance of the fieri facias, assist in the execution of it where 
 obstructed by the intci-position of a trust; but the writ being a lien at 
 law, not upon the lands, but only on the present profits of the land.*, a 
 
 {I) Pit V. Hunt, 2 Ch. Ca. 7.3 ; Gore v. Bowser, 3 Sm. & Gif. 1 ; Anon, case, cited 
 Balch V. Wastall, 1 P. W. 445 ; and see Scott v. Scholej, 8 East, 485 ; Eastwick v. 
 Caillaud, 5 T. R. 420. Kirkby v. Dillon, C. P. Coopers Rep. 1837-38, 504; Simp- 
 son V. Taj-lor, 7 Ir. Eq. Rep. 182; Bennett v. Powell, 3 Drew. 326; Gore v. Bow- 
 ser, 3 Sm. & Giff. 1. 
 
 (m) Angell v. Draper, 1 Vern. 309 ; Shirley v. Watts, 3 Atk. 200. 
 
 («) Amb. 79. 
 
 (o) 2 Aik. COO; and see a note of S. C. in Grojran v. Cooke, 2 B. & B. 233. 
 
 {p) Dundas v. Dutens, 2 Cox, 240. {q) Grogan v. Cooke, 2 B. & B. 233. 
 
 (r) Plaskct v. Dillon, 1 Hog. 328. (s) Caillaud v. Estwick, 2 Anst. 384. 
 
 [t) Rider v. Rider, 10 Ves. 3G8. (u) Grogan v. Cooke, 2 B. & B. 233. 
 
 {v) See pp. 600. G70, infra. 
 
 {w) King V. Marissal, :: Atk. 192 ; Shirley V. Watts, lb. 200; Burdon 7. Ken- 
 nedy, lb. 739 ; and see King v. De la Motte, Forr. 1C2. 
 
 April, 1857.— 34
 
 526 LEWIX ON THE LAW OF TRUSTS, ETC. 
 
 court of equity could not go farther and affect either the freehold or the 
 possession. 
 
 The elegit owing its origin to a statute, a doubt may suggest itself in 
 limine whether, when the legislature has passed an enactment against 
 the legal estate, a court of equity can, consistently with its general prin- 
 ciples, apply by analogy the same provision to the case of a trust. A 
 legal estate, for example, was by act of parliament made forfeitable with- 
 out inquest for treason, and, as the statute enumerated " uses," it was 
 contended, and seems to be established, that trusts have also under that 
 expression become forfeitable to the crown ; but it was never pretended 
 that, had " uses" not been inserted in the act, a court of equity could 
 have subjected trusts to forfeiture by any inherent jurisdiction of its own. 
 It must be remarked, however, that the act which originated the elegit 
 was, like the statute de don is, prior to the introduction of the use ; and 
 as equity, by analogy to the Statute of Westminster, has admitted entails 
 and remainders of trusts, why may it not, by analogy to ^another 
 L -1 act of the same statute, allow equitable interests to be affected by 
 judgments ?(x\ 
 
 It would seem that in Lord Keeper Bridgman's time a trust was not 
 subject to an elrgit.[i/) But the authority of that distinguished lawyer 
 has not been followed in succeeding times. 
 
 It was long ago established that a judgment creditor might redeem a 
 mortgage in fee, (5.) and it is now equally settled that he may prosecute 
 his elegit against any other equitable interest. (a) 
 
 Davidson v. Foley, (i) and Flasket v. Dillon, (c) were cases of a legal 
 elegit, but may be usefully noticed to prevent misapprehension. In the 
 former case. Lord Foley had devised an estate to trustees for a term of 
 ninety-nine years upon certain trusts, and subject thereto, to Thomas 
 Foley for life, with remainders over. His lordship had also devised other 
 estates to trustees for a term of one hundred and one years, and subject 
 thereto, to Thomas Foley for life, &c., as before judgments were entered 
 up against Thomas Foley, and the trusts of the terms having been satis- 
 fied, and the beneficial interest resulting to the tenant for life, the credi- 
 tors sued out elegits, and filed a bill praying to have the terms declared 
 attendant on the inheritance, and that the trustees might be restrained 
 from setting up the terms at law. The warrants of attorney on which 
 
 {x) See PtTall v. Eolle. 1 Atk. 184. (y) See Pratt v. Colt, Freem. 139. 
 
 (2) Greswold v. Marsham, 2 Ch. Ca. 170 : Crisp v. Heath, 7 Vin. Ab. 52. (The 
 former case has been compared with Reg. Lib., A. 1685, f. 399, and the report ap- 
 pears substantially correct : the latter case has not been found.) Plucknett v. 
 Kirke, 1 Vern. 411 ; Reg. Lib. 1686, B. fol. 181, 184, see infra ; Sharpe v. Earl of 
 Scarborough, 4 Yes. 538, and the cases cited lb. 541 ; Stileman v. Ashdown, 2 Atk. 
 477 : Fothergill v. Kendrick, 2 Vern. 234 ; and see Steele v. Phillips, 1 Beat. 188 : 
 Forth T. Duke of Norfolk, 4 Mad. 503 ; King v. De la Motte, Forr. 162 ; and see 
 Freeman v. Taylor, 3 Keb. 307. 
 
 (a) Forth v. Duke of Norfolk. 4 Mad. 504. per Sir J. Leach : Serj. Hill's opinion, 
 lb. 506, note (a) ; Foster v. Blackstone, 1 M. &: K. 311, per Sir J. Leach ; and see 
 Lodge T. Lyseley, 4 Sim. 70 ; Kirkby v. Dillon, C. P. Cooper's Rep. 1837-38, 504 ; 
 Neate v. Duke of Marlborough. 9 Sim. 60, 3 M. & Cr. 407 : Adams v. Paynter, 1 
 Coll. 530. 
 
 [b) 2 B. C. C. 203 : 3 B. C. C. 598. (c) 1 Hog. 324.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 527 
 
 the judgments were grounded were ^afterwards discovered to be r:i;^--i-, 
 void ; but Lord Thurlow, in dismissing the bill, observed, " All •- -I 
 he could gather from the cases was that where the court could see there 
 was a good judgment it would not stop without aiding that title by what 
 was called an equitable eletjlt, but he could not carry it higher than that. 
 The (cquifas scquens legem must be such as to assure the court the case 
 was such as it could be followed by a legal execution ; but where it ap- 
 peared the judgment could not be followed by a legal elegit, the court 
 could not follow it by an eqnitoMe elegit." 
 
 In Flasket v. Dillon, Lord Dillon, the tenant for life, had demised an 
 estate to trustees for ninety-nine years, if he should so long live, upon 
 trust, after discharging certain incumbrances, to pay to himself for life 
 an annuity of 5000^., and, subject thereto, upon certain trusts for his 
 creditors. A judgment was afterwards entered up against him, and an 
 elegit sued out, but as there was no beneficial interest upon which the 
 ehgit could operate at law, the judgment creditor filed a bill to attach 
 the rent-charge of 5000^. a year in equity. Sir William MacMahou 
 said, '<■ The rule of law is, that the freehold property of the debtor shall 
 be liable to the demands of his judgment creditors. Lord Dillon insists 
 that the magical operation of a voluntary deed shall clear it from all in- 
 cumbrances. If the statute of uses had executed the trusts of this deed, 
 Lord Dillon's interest would have been extendible, and the interposition 
 of a trust cannot exempt it in this court. "((7) His honor's decision in 
 favour of the judgment creditor was affirmed on appeal by Lord Manners, 
 and afterwards, on a further appeal, by the house of Lords. (e) 
 
 These then were cases of a judgment creditor having a legal elegit, 
 and seeking to remove an impediment to the legal execution of it; but 
 in Tunstall v. Trappesf/) the elegit was, strictly and properly speaking, 
 equitable. By an indenture of 1811, Trappes appointed an estate to the 
 use that Davis should receive an annuity, and, subject thereto, to the 
 use of Withy and his heirs, upon trust in the first place to secure the 
 ^annuity, and then in trust for Trappes. In 1812, a judgment j-^p,^^-. 
 was entered up against Trappes by Sir Henry Lawson. In the L "'-' 
 beginning of the year 1814, Trappes proposed to one Cranmer, that 
 Cranmer should payoff" Davis's annuity, and several incumbrances which 
 were prior to it, and take a mortgage of the property for securing the 
 advances he should thus make. On the 1st July, 1814, Cranmer paid 
 off" Davis's annuity, and took a conveyance of the legal estate from Withy 
 to himself in fee, by way of secm-ity for the moneys advanced and to be 
 advanced. He afterwards paid off" several charges prior to the annuity, 
 and took assignments of the terms by which they were secured in the 
 names of trustees. It was proved that Cranmer had notice of the 
 judgment some time between the first and eleventh days of July, 1814, 
 and with such notice had continued to make advances to a very con- 
 siderable amount. The question was, whether Cranmer was bound by 
 the judgment, and if bound at all, then to what extent. The vice-chan- 
 cellor decided that Cranmer was entitled to priority over the judgment 
 
 {d) 1 Hog. 328. {e) 2 Bl. N. R. 239. 
 
 (/) 3 Sira. 286: and see Lewis v. Lord Zouche. 2 Sim. 388.
 
 528 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 creditor in respect of the sums paid by him for procuring the assignments 
 of the^^-i'or charges, and for redeeming the annuity, those incumbrances 
 having been created prior to the time when Cranmer had notice of the 
 judgment ; but that his claim in respect of the moneys advanced by him 
 subsequently to that period should be postjioned to the judgment. In 
 other words, the trust estate was bound by the judgment in the hands of 
 a purchaser with notice, where he could not protect himself under the 
 assignment of a prior charge. 
 
 The right of an elegit creditor upon an equitable interest has also since 
 been assumed in the case of Neate v. Duke of Marlborough. (<;) 
 
 The present doctrines of the court have been well expressed by Sir J. 
 Leach. "A judgment creditor," he said, "has at law by the Statute of 
 Frauds execution against the equitable freehold estate of the debtor in 
 the hands of his trustee,(A) provided the debtor has the whole bene- 
 ficial interest ; but if *he has left a partial interest only in his 
 L J equitable freehold estate, the judgment creditor has no execution 
 at law, though he may come into a court of equity, and claim there the 
 same satisfaction out of the beneficial interest, as he would be entitled 
 to at law if it were legal. Every voluntary assignee of this equitable 
 interest of the debtor will be in the same situation, with respect to the 
 claim of the judgment creditor, as the debtor himself was. Every 
 assignee for valuable consideration will hold the equitable interest dis- 
 charged of the claim of the judgment creditor, unless he has notice of 
 
 it."(o 
 
 An estate given by A. to trustees upon trust to convert into personalty 
 for the benefit of B. has in equity all the properties of personalty, and 
 under the old law therefore a judgment against the person to whom the 
 proceeds of the sale were directed to be paid conferred no lien upon the 
 proceeds. 
 
 Thus in Foster v. Blackstone(/L) estates were conveyed by the Duke 
 of Marlborough to trustees in fee upon trust, if the said trustees shoidd 
 in their discretion think jjroper, but not othertvise, to raise any sum of 
 money for satisfaction of any debts due and owing from his son the 
 Marquis of Blandford, which the trustees should consider advisable to be 
 paid; and to pay the surplus, if any, of such moneys as should be raised 
 in the lifetime of the duke unto the duke, and the surplus of such as 
 should be raised after his decease unto the Marquis of Blandford ; and, 
 subject to the trusts aforesaid, the trustees were to stand seised of the 
 said hereditaments in trust for the said duke for his life, and after his 
 decease in trust for the marquis in fee. After the death of the duke 
 the trustees converted the whole of the estate into personalty; and a 
 creditor, whose judgment had been entered up against the Marquis of 
 Blandford, sought to attach the trust moneys in the hands of the trus- 
 tees, as bound by the judgment. Sir J. Leach said, <'The creditor 
 insists, that by force of his judgment he has a lien upon the moneys pro- 
 
 (g) 9 Sim. GO ; 3 M. & C. 407 ; and see Bennett v. Powell, 3 Drewrj, 236. 
 
 (/«) As to the operation of the Statute of Frauds, see infra, p. 664. 
 
 (i) Forth V. Duke of Norfolk, 4 Mad. 504. 
 
 {k) 1 M. & K. 29'7 ; and see Browne v. Cavendish. I Jones & Lat. 633.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE, 529 
 
 duced by the sale of the trust estates ; and if the interest of the marquis 
 were *a vested interest in land, the creditor would be entitled; r*pr^-| 
 but the creditor had no legal lien upon the trust estates, but a L J 
 possihle equitable lien depending upon a contingency. The trustees had 
 a full authority to sell, and to convert the realty into personalty. If any 
 part had been unsold by the trustees, it would have remained land, and 
 the judgment would have attached upon it; but it was all sold by the 
 trustees, and the contingency which would have entitled the judgment 
 creditor never took effect." 
 
 Whether the same principle applied were a judgment was entered up 
 against a person after he had contracted to sell was much doubted. 
 
 Upon this subject we have the following opinion of Mr. Serj. Hill : — 
 H. A. S., seised in fee of an estate, subject to his mother's jointure and 
 to younger children's portions, contracted for the sale of the property in 
 lots to different purchasers. After the date of the contracts, H. A. S. 
 executed a conveyance to trustees, upon trust to convey to the different 
 purchasers, and to invest part of the purchase-money in the funds as an 
 indemnity against the jointure and portions, and to pay the residue to 
 himself. Subsequently to the deed of trust, H. A. S. acknowledged a 
 judgment. Mr. Serj. Hill was consulted on the part of the trustees, 
 whether they would be safe in paying the money to H. A. S., as against 
 the judgment of which they had notice, and also as against judgments, 
 if any, of which they had no notice. The opinion was as follows : " As 
 to the judgment of which the trustees had notice, though, to many pur- 
 poses, the estate agreed to be sold is from the time of the contract the 
 estate of the purchaser; yet I think the vendor is not before payment of 
 the money to be considered a mere trustee, for the estate continues his 
 at laic, and even in equity he has a right to detain it until payment of 
 the purchase-money ; and, therefore, the judgment creditor hath a right 
 to so much of the purchase-money as is sufficient to satisfy the judgment; 
 and the trustees having notice of his right ought to pay it, if the money 
 is in their hands. As to the judgments, if any, of which the trustees 
 have no notice, I think a court of equity will not make them pay the 
 money over again, if they apply it according to the deed of trust, because 
 *I think equity in the case of a judgment creditor, and a bona 
 fide purchaser or a trustee without notice, will not interpose on 
 either side, but will leave the law to take its course. "(/) 
 
 And Sir J. Leach appears to have concurred in this opinion, that the 
 vendor's interest after the contract is bound by a judgment ; for in Forth 
 V. The Duke of Norfolk,(?>i) where a person had mortgaged an estate in 
 fee, and then contracted to sell, and afterwards, before the conveyance, 
 acknowledged a judgment. Sir J. Leach said, " An assignee for valuable 
 consideration is discharged of the claim of the judgment creditor, unless 
 he had notice of it before the consideration jJaid. If A., before the actual 
 conveyance to him, had received notice of the judgment, then, being a 
 purchaser of an equitable interest in a freehold estate from the debtor, 
 and not having paid his purchase-money, he would have been equally 
 
 (/) Cited Forth v. Duke of Norfolk, 4 Mad. 506, note (a). 
 (m) 4 Mad. 503. 
 
 [*655]
 
 530 LEWIX ON THE LAW OF TRUSTS, ETC. 
 
 affected with the judgment as tlie debtor himself; and if he had after- 
 wards paid the whole purchase-money to the debtor, he would have still 
 remained hable to the judgment creditor." 
 
 But in a subsequent case Sir L. Shadwell said, '•' he should not have 
 o-iven the opinion which the learned Serjeant had done, for it appeared 
 to him that from the time H. A. S. entered into binding contracts to sell 
 the lands, he not having judgments against him at that time, the pur- 
 chasers had a right to file a bill against him, and have the legal estate 
 conveyed. "(?t) And it may be argued that if the vendor die after the 
 contract, but before the conveyance, the purchase-money would go to the 
 executor ;(o) and that if the contract work a notional conversion of the 
 land into money in respect of the vendor's representatives, the same con- 
 sequence ought to follow in respect of the vendor's judgment creditors. 
 
 The case where A. conveys to trustees upon trust to sell for a limited 
 r*R'Rn purpose, as payment of incumbrances, and to pay the *surplusto 
 L -I himself, and where, before sale, a judgment is entered up against 
 A., presents still more difficulty than that last discussed ; as does also 
 the case of a mortgage by A. with power of sale to the mortgagee and of 
 a judgment entered up before sale. It is of course clear that in either 
 case the power of giving receipts binds as against the judgment creditor, 
 so that a purchaser from the trustee or mortgagee is not concerned to see 
 that the judgments are satisfied ;0j) but this still leaves open the question 
 whether the judgment was, under the old law, a lien or charge on the pro- 
 ceeds in the hands of the mortgagee or trustee, a point, however, which is 
 now unimportant, save so far as it bears upon the present state of the law. 
 
 How far the principles discussed in Foster v. Blackstone and the other 
 cases referred to are applicable to the altered state of the law under the 
 1 & 2 Vict. c. 110, has not yet been settled. As between the purchaser 
 and the judgment creditor, the power of the trustee or mortgagee to give 
 receipts, remains, it is conceived, the same. But the large words of sec- 
 tion 13 of the 1 & 2 Vict. c. 110, will, doubtless, in many cases, confer 
 an equitable charge where, under the old law, the judgment would not 
 have created a lien. Thus, where A. was entitled to an annuity secured 
 by a covenant and an assignment of leaseholds in triist to sell, it was held 
 that A.'s interest under the deed might, under the act, be made available 
 for payment of a judgment debt due from her.(^q\ So where a testator 
 gave real estate to trustees upon trust to levy and raise, during the life 
 of A., an annuity of 400?., and directed the annuity to be held upon trust 
 for the support, clothing, and maintenance of A., the court, having pre- 
 viously decided that the trust was one for the benefit of A. generally,(r) 
 held that a judgment creditor of A. was entitled to a charge on the 
 annuity under the act.(s) Again, where a person covenanted to pay A. 
 
 (n) Lodge v. Lyseley, 4 Sim. 75; and see Craddock v. Piper, 14 Sim. 310, -where, 
 however, it does not appear whether the judgments were entered up before the 
 actual sale or the decree for sale. 
 
 (o) See Farar v. Winterton, 5 Beav. 1, and Curre v. Bowver, ib. 6, note. 
 
 (p) Lodge V. Lyseley, 4 Sim. 75; Alexander v. Crosbie, 6 Ir. Eq. Rep. 513. 
 
 (q) Harris v. Davidson, 15 Sim. 128. 
 
 (r) Younghusband v. Gisborne, 1 Coll. 400. («) S. C. 1 De Gex & Sm. 209.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. ^Zl 
 
 5000?., and tliat the sum should be a charge on certain *land, it r:(./^F7T 
 was held that a judgment creditor of A. was entitled to a charge L ' -■ 
 on the land in respect of A.'s interest therein. (^) -^gainj where a mort- 
 gage with power of sale was executed, and before sale a judgment was 
 entered up against the mortgagor, who was subsequently discharged 
 under the Insolvent Act, and after such discharge the mortgagee sold 
 under the power of sale, it was held that the judgment creditor was 
 entitled to the surplus proceeds of sale.^w) 
 
 It is clear therefore that, in the actual state of the law and decisions, 
 a vendor or mortgagee holding surplus proceeds of sale in his hands could 
 not properly be advised to pay them to the settlor or mortgagor without 
 the discharge or concurrence of the judgment creditor. Neither could 
 a purchaser, where, as in the case before Serjeant Hill, judgments have 
 been entered up against the vendor subsequently to the contract, safely 
 complete without the discharge or concurrence of the judgment creditor. 
 If, however, the owner of an estate contract to sell, and then judgments 
 are entered up against him, it is clear that the judgments, though they 
 may attach at law upon the land, yet cannot affect it in equity, and there- 
 fore, if the purchase-money can be properly applied, the purchaser may 
 compel the creditor to release the judgment, and if the legal estate at the 
 time of the judgment was not in the vendor but in a trustee for him, the 
 judgment cannot affect the land either at law or in equity, though it may 
 affect the purchase-nionef/ ; and should there be any intervening incum- 
 brances between the contract and the judgment which would exhaust the 
 whole purchase-money, it is conceived that the purchaser might safely 
 pay off the intervening incumbrances, and take the legal estate from the 
 trustee. The judgment creditors in such a case, would have no legal 
 lien, and the purchase-money has been properly applied. 
 
 The question, hoiv/ar, under the old law, the lieu of the judgment 
 creditor against the trust estate extended, was one *of conside- ^^^^^jn 
 rable difl&culty, and the authorities could only be reconciled by L J 
 the aid of a somewhat subtle distinction. 
 
 A judgment creditor might have come into a court of equity upon two 
 grounds. First, upon a ler/al title where he either sought to remove an 
 impediment to the execution of his legal deyit, or, after the death of the 
 conusor, sued for payment of his debt out of the conusor's personal assets, 
 and, if they should be insufficient, then by sale(i) of the real estate : or, 
 secondly, upon an cquitahle elegit, on the ground that he had no legal 
 lien, and therefore could have no legal process. (?c) 
 
 As the extent of relief ought in both these cases to be the same, and 
 
 (0 Russell V. M'Culloch, 1 Kay & John. 313 : and see Clare v. Wood, 4 ITaro, 
 81. But by 18 & 19 Vict. c. 15, s. 11, when the mortgagee is paid off, the judg- 
 ment against him ceases to bind the land. 
 
 (w) Robinson v. Hedger, 13 Jur. 846 ; and 14 Jur. 784. 
 
 (i') An elegit would at law give the possession of the lands till the satisfaction of 
 the debt, but equity assumes the jurisdiction of facilitating the remedy bv a sale. 
 See Barnwell v. Ba'rnwell, 3 Ridg. 61 ; O'Fallon v. Dillon, 2 Sch. & Lef lo"; O'Gor- 
 man v. Comyn, lb. 139; Stileman v. Ashdown, 2 Atk. 610; but see Bedford v. 
 Leigh, 2 Dick. 709 ; Neate v. Duke of Marlborough, 3 M. & C. 417. 
 
 {id) These grounds of suit still subsist, in addition to that conferred by the ISih 
 section of the 1 & 2 Vict. c. 110, giving the judgment creditor a charge in equity.
 
 532 LEAYIN ON THE LAW OF TRUSTS, ETC. 
 
 the court never attempted to take a difference, the authorities determined 
 upon either head may be relied upon as applicable to the other. The 
 result of the cases upon this principle, notwithstanding an early authority 
 |.^ _ to the contrary,(a;) *was that a judgment creditor could sue an 
 L J equitable elegit of a moiety only of a trust estate. (?/) 
 
 The grounds of the doctrine was thus delivered by Lord Hardwicke in 
 the leading case of Stileman v. Ashdown :(.~) << The judgment affects 
 the laud," said his lordship, " as it is bound by the judgment. Equity 
 follows the law in this case, and as the plaintiff can extend only 
 a moiety there, he shall have no more here. Suppose it was the 
 case of a hond creditor; he might have an action of debt against 
 the heir, and judgment against him upon assets descended, and this 
 he is entitled to at common law, for it is the debt of the heir, and 
 the action is in the debet and detinet ; but if Vi judgment was obtained 
 against the ancestor, a scire facias could not be brought against the heir 
 at common law, because the heir was not bound. Before the Statute of 
 Westminister, there was no remedy against the ancestor in his lifetime 
 upon a judgment on his land ; and it is that statute which subjects one 
 moiety thereof to the judgment. I'l what right then is the scire facias 
 
 (x) Compton v. Corupton, cited in Stileman v. Ashdown, Amb. 15. The case 
 as stated in the Kegistrar's Book, was this : Richard confessed a judgment, and 
 died intestate. Henry, his son and heir, filed a bill against the administratrix of 
 his father and the persons entitled to the benefit of the judgment, praying that the 
 debt might be discharged out of his father's personal estate to the relief of the 
 lands. Henry died, and the suit was revived by Hoby, his son and heir, and at 
 the hearing it was decreed, somewhat unaccountably, that the plaintiff showl A pay 
 the judgment. Upon this Pigott, the party interested in the judgment, filed a cross- 
 bill against the plaintiff in the former suit to have the decree carried into execu- 
 tion, and the court on the hearing made the order as before. Against this decree 
 the plaintiff Hoby appealed, and Lord Keeper Harcourt then directed that the per- 
 sonal estate of Richard should be applied in the first instance, and that Hoby 
 should not h& personally charged with the judgment debt, but should make good 
 the same so far only as any rents and profits of the real estate of Richard had come 
 to his hands ; but in case such personal estate, rents, and profits should fall short 
 of the judgment, then the deficiency should be made good "by sale of the whole 
 real assets of Richard liable to the judgment." (Reg. Lib. A. 1711, f 134.) The 
 authoritj' of this case cannot however have much weight, for, as was observed by 
 Lord Hardwicke (Stileman v. Ashdown, Amb. 17,) the point whether the whole 
 or a moiety should be sold appears not to have been discussed. 
 
 (,y) Stileman v. Ashdown, 2 Atk. 477, 608 ; Rowe v. Bant, Dick. 150 (as cor- 
 rected from Reg. Lib., the case was as follows : — Rowe, the conusee of a judgment 
 confessed by one Dingle, deceased, filed a bill against Bant, the executor of Dingle 
 and who was also in possession of Dingle's real estate by the double title of gran- 
 tee in Dingle's lifetime and general devisee in his will, praying payment of the 
 judgment out of the real and personal estate of the testator, and that the grant to 
 Bant in Dingle's lifetime might be declared void, as against the judgment, for want 
 of consideration. The personal estate proved insufficient, and thereupon the court 
 ordered a sale oi one moiety of the real estate comprised in the grant. B. 1750, f. 
 427) ; Barnwell v. Barnwell, 3 Ridg. P. C. 24 ; O'Dowda v. O'Dowda, 2 Moll. 483; 
 Anon, case, ib. ; O'Gorman v. Comyn, 2 Sch. and Lef 137 ; Burroughs v. Elton, 
 1 1 Ves. 33 ; Williamson v. Park, 2 Moll. 484 ; Armstrong v. Walker, ib. In O'Fal- 
 lon V. Dillon, 2 Sch. and Lef. 13, the sale of the estate was not confined to a moiety ; 
 but there the creditor had entered up two judgments the same tervi, and then as 
 both judgments were of the same date, the creditor might at luu\ have taken both 
 moieties in execution. See Attorney-General v. Andrew. Hard. 23. 
 
 {z) 2 Atk. 608.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 533 
 
 brought against the heir or purchaser? Why. only as terre-tenant, [(i) 
 and by virtue of the statute. I thought of the objection myself, that a 
 bond creditor would be in a better situation than a judgment creditor; 
 and so he is, for as soon as the bond debt is turned *into a judg- r*r>pQ-i 
 ment, it is extinct against the ancestor, and the creditor cannot, L -I 
 in the lifetime of the ancestor, bring any action upon the bond : can he 
 then bring any action against the heir after it is entirely extinct 1{h) 
 But still he obtains a great advantage by a judgment, as it gives him an 
 opportunity of binding the land immediately, and likewise gives him a 
 preference over all other bond creditors ; and therefore the creditor pre- 
 fers this real advantage to a precarious one of assets descending upon the 
 heir after the death of the ancestor. If this is the case at law, what is 
 there in equity to better his case ? Why, nothing more than to accele- 
 rate the payment by directing a sale of the moiety, and not let the judg- 
 ment creditor wait till he has been paid out of the rents and profits ; but 
 equity cannot change the rights of parties." 
 
 An equitij of redemption was, however, governed by a very different 
 rule. 
 
 If A., seised of an estate, mortgaged it to B. in fee, and then con- 
 fessed a judgment to C, it was clear C. had a lien which entitled him to 
 redeem B. But should he redeem a whole or a moiety ? So far as the 
 judgment creditor had any claim of his own, a moiety only ; but as B. 
 could not be compelled to part with the smallest fraction of the estate until 
 he had been satisfied his whole debt, C. was under the necessity of redeem- 
 ing the entirety. Again, when C. had taken a transfer of the security, it 
 followed, that as mortgagee with a judgment against the mortgagor he 
 had a right to tack, and no one could redeem any part of the estate out of 
 his hands until payment, not only of the original mortgage debt, but 
 also of the judgment. Thus it arose from a kind of necessity, and not 
 from any wanton violation of principle, that in the instance of an equity 
 of redemption the judgment creditor was paid by a sale of the wlioh 
 estate. (c) 
 
 *Thus in Stileman v. Ashdown,((7) Lord Hardwicke, at the r*QQj-i 
 same time that he gave the judgment creditor a moiety only of L -^ 
 the trust estate, ordered a sale of the ivholc of the lands in mortgage.if) 
 So, where there were several incumbrancers by judgment upon an equity 
 of redemption, and the court decreed a sale, the first judgment creditor was 
 not confined to a moiety of the estate, but the common decree was, that the 
 
 {a) See Harbert's case, .3 Re. 12 b; Bowyer v. Eivitt, Sir W. Jono?. 87; Dyer, 
 271, a pi. 25. 
 
 {b) Sir A. Hart, alluding to this point, said, " The courts have got rid of Stile- 
 man V. Ashdown, as savouring too much of technicality." Loiihy v. Dancer, 1 
 Moll. 319. But Crispe v. Blake, 1 Ch. Ca. 2.3, had decided that the bond was ex- 
 tinguished by the judgment, and accordingly in Barnwell v. Barnwell, 3 Ridg. P. 
 C. 24, and O'Gorman v. Comyn, 2 Sch. k Lef. lot, though the judgments were 
 jnccedcd hij bonds, a sale of ouh" a moiety was directed. 
 
 {c) Stonehewer v. Thompson, 2 Atk. 440; Sish v. Hopkins. Blunt's Amb. 793. 
 
 {d) 2 Atk. 477. 
 
 (e) Sir A. Hart, not observing the ground of the di.-;tinrtion. has charged Lord 
 Hardwicke with inconsistency, Leahy v. Dancer, 1 Moll. 322.
 
 534 LEWIN ON TUE LAW OF TRUSTS, ETC. 
 
 incumbrancers should be paid their full demands out of the proceeds of 
 
 the sale, according to their priority. (/)(1) 
 
 There is one species of interest which, though bordering closely upon 
 the nature of an equity of redemption, yet ought perhaps to be distin- 
 guished from it. In Tunstall v. Trappes,(^) before cited, Trappes, in 
 1811, appointed an estate to the use that Davis might receive an annuity, 
 and, subject thereto, to the use of Withy in fee upon trust, in case the 
 annuity should be in arrear for six months, to sell the premises, and out 
 of the proceeds to purchase an annuity of the same amount for Davis, 
 and pay the surplus, after discharging the existing incumbrances, to 
 Trappes ; provided, that in case Trappes should be desirous of repur- 
 chasing the annuity, and should pay the price to Davis, then the annuity 
 should cease, and Withy, the trustee, should reconvey. In 1812, 
 Trappes confessed a judgment, and the question was, whether it should 
 affect the whole or only a moiety of the estate ; and Sir L. Shadwell, on 
 the ground that a judgment creditor might redeem the entirety of lands 
 in mortgage, held that the lien should extend to the whole. Now, there 
 appears to be this distinction between an equity of redemption and the 
 case just mentioned. In the former, the whole interest is in the mort- 
 r*«r9n S^S^^ ^J non-fulfilment of the condition; and if the *judgment 
 L J creditor redeem the mortgagee, and then the mortgagor come to 
 be relieved against the forfeiture, the court will impose terms upon the 
 mortgagor, and oblige him to discharge every lien upon the estate before 
 he can be permitted to redeem the smallest part. But in Tunstall v. 
 Trappes the whole interest was never in the annuitant either at law or 
 in equity. The legal estate was limited to a third person in fee, and 
 the equitahle interest to the extent of securing the annuity only was in 
 trust for the annuitant, but as to all the residue was in trust for the 
 grantor. There was nothing to be redeemed, but merely a trust to be 
 executed. The judgment creditor might take an assignment of the 
 annuity, but he had no right to tack the judgment : the grantor could 
 call for a reconveyance from the trustee on payment of the price agreed 
 upon for the annuity, and the court could impose no terms, for no favour 
 was asked. 
 
 Is the judgment creditor, when he comes into equity for a sale of the 
 estate, either in the lifetime of the conusor, or after his death, obliged, 
 before the jurisdiction of the court can attach, to sue out an actual 
 elegit f If the judgment be a legal lien, and the creditor seek to remove 
 some impediment to the legal execution of it, it is clear he must first 
 lay a foundation for the interference of equity by suing out an elegit at 
 law ;(A) and the same rule is now established even where the judgment 
 
 (/) Sharpe v. Earl of Scarborough, 4 Ves. 538 ; the cases cited ib. 541 ; and 
 see Berrington v. Evans, 3 Y. & C. 384. 
 
 {g) 3 Sim. 286, see 300. 
 
 (A) See Dillon v. Flasket, 2 Bligh, N. R. 239 ; Neate v. Duke of Marlborough, 
 3 M. & C. 407 ; Mitford on Plead. 126, 4th edit. 
 
 (1) It has been ruled, upon a similar principle, that, where freeholds and copy- 
 holds are blended in one mortgage, the equity of redemption of the whole is liable 
 as assets to a bond creditor, though copyholds by themselves are not assets. Acton 
 V. Peirce, 2 Vern. 480.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 535 
 
 is merely an equitable lien ;{i\ but the elegit need not be returned ;(/i:) 
 and where the trust estates were in three counties an elegit in one only 
 was held sufficient.^/) 
 
 When, however, the interest sought to be aflfected is an equitable 
 chattel real, it is sufficient to sue out a writ o? fieri *facias.{in) r^f^r-o-^ 
 And when the assistance of the court is sought in favour of a L J 
 county court judgment against an equitable chattel real, it is sufficient 
 to pursue the analogous step of placing a writ of execution in the hands 
 of the high bailiff, pursuant to the County Court x\ct.(«) 
 
 Again, it seems that a judgment creditor may redeem a mortgage 
 without suing out an elegit; for inasmuch as the court finds the creditor 
 in a condition to acquire a power over the estate by suing out the writ, 
 it does what it does in all similar cases, it gives to the party the right to 
 come in and redeem other incumbrancers upon the property. (o) 
 
 And so whether the judgment be legal or cquitahlr, if the creditor 
 file his bill after the death of the conusor for satisfaction of his claim 
 out of the personal assets, and, in case of their deficiency, by a sale of 
 the real estate,(jj) it has been held that an actual elegit is not an essen- 
 tial requisite. The observations of Lord Fitzgibbon upon this point 
 appear worthy of attention : " An objection/' he said, " has been made 
 at the bar, that the creditor's bill ought not to be entertained, because 
 he did not revive the judgments and sue out elegits; and it has been 
 asserted, that until the Judgment has heen revived against the heir and 
 terre-tenants of the conusee, caul an elegit has been sued forth, a court of 
 equity will not entertain a bill against the heir and executor to levy the 
 debt. The equity upon which bills of this nature have been entertained, 
 is founded on the Statute of Westminster, and has been adopted no less 
 for the ease of the creditor in levying his debt with expedition, than in 
 mercy to the representatives of the debtor, by relieving his estate from 
 the ruinous expense of an extent at law, and of the suits which might 
 arise in consequence of it. It is notorious to every man of the profes- 
 sion, that if a scire facias to revive a judgment against the heir and 
 terre-tenants of the conusor is put ioto the hands of a solicitor versed in 
 the science of ^accumulating costs, he will be enabled to charge p^pp i-i 
 the estate with costs equal to the debt, if it be not considerable. L J 
 If the terre-tenants are charged unequally with payment of the debt, it 
 lays a ground for fresh suits between them for contribution, and if the 
 
 (i) Neate v. Duke of Marlborough, 9 Sim. 60 ; 3 M. & C. 407 ; but see Tunstall 
 V. Trappes, 3 Sim. 280 ; RoUeston v. Morton, 1 Conn. & Laws. 257. But where 
 the creditor sues upon the equitable charge created by sect. 13 of the 1 & 2 Vict, 
 c. 110, an cleffit is not necessary, and the decree will be for sale. See Carlon v. 
 Farlar, 8 Beav. 525 ; Footner v. Sturgis, 5 De G. & Sm. 736; Smith v. Hurst, 1 
 Coll. 705; 10 Hare, 30; Jones v. Bailey, 17 Beav. 582; but qua>re, rightly de- 
 cided. 
 
 (k) Dillon V. Plasket, 2 Bligh, N. S. 239 ; and see Campbel Iv. Farrell, Rep. t. 
 Plunket, 388. 
 
 (l) Dillon V. Plasket, 2 Bl. N. S. 239. 
 
 (m) Gore v. Bowser, 3 Sm. & Giff. 1 ; Smith v. Hurst, 10 Hare, 30. 
 
 (n) Bennett v. Powell, 3 Drewry, 326. 
 
 (o) Neate v. Duke of Marlborough, 3 M. & C. 41C, per Lord Cottenham. 
 
 (p) Barnwall v. Barnwall, 3 Ridg. P. C. 24 ; Neate v. Duke of Marlborough, 3 
 M. & C. 416, per Lord Cottenham.
 
 536 LEWIX ON THE LAW OF TRUSTS, ETC. 
 
 creditor levies the debt by extending the real estate of the debtor when 
 there is a personal fund applicable to the payment of it, this lays a 
 ground for a suit also by the heir against the executor to have the per- 
 sonal estate applied to reimburse him ; and therefore it is that courts of 
 equity have in this country, certainly for more than a century, enter- 
 tained bills in the first instance after the death of the comisor for an 
 account of his real and personal estate, and of the sum due for principal, 
 interest, and costs on the foot of the judgment. "(g') 
 
 Thus much concerning the judgment creditor's equitable remedy 
 against a trust. We proceed now to the provision in the Statute of 
 Frauds,(?-'] which enabled a judgment creditor in certain cases to sue a 
 writ of execution against an equitable estate at Iau\ 
 
 The 10th section enacted, that '< it should be lawful for the sheriff, or 
 other oflBcer, to whom any writ or precept should be directed at the suit 
 of any person upon any judgment statute or recognizance, to deliver exe- 
 cution unto the party in that behalf suing of all such lands and here- 
 ditaments as any other person or persons might be in any manner of wise 
 seised or jiossessed in trust for the party against whom execution was so 
 sued, like as the sheriff or other offcer might or ought to have done, if 
 the said party against whom execution should be so sued had been seised 
 of such lands and hereditaments of such estate as they were seised of in 
 trust for him at the time of the said execution sued." 
 
 Upon the construction of this enactment the following points were 
 resolved : — 
 
 1. As the statute spoke only of lands, &c., of which other persons 
 r*fir^n ^^^'^ seised{s^ in trust for the debtor, it did not extend *to trusts 
 L -I of chattels real of which the legal proprietor was said not to be 
 seised, hut possessed. (t\ 
 
 2. An equity of redemption was not within the terms of the act.T?/) 
 
 3. A hare and simple trust only was intended — not one of a compli- 
 cated nature, where the interests of other parties are mixed up with the 
 debtor's title. (r) 
 
 4. From the concluding words, " like as the sheriff might have done, 
 if the cestui que trust had been seised of the estate whereof other per- 
 sons be seised in trust for him at the time of the execiition sued," if, 
 after the judgment was entered up, but before actual execution, the 
 estate had been disposed of to a pui'chaser, so that when execution was 
 sued there was no trust for the debtor in esse, in that case the words of 
 the statute had failed to provide a remedy, and the judgment creditor 
 could not be put in possession. (w) 
 
 The question was much discussed whether in that case, though the 
 
 (q) Barnwell V. Baruwell, 3 Ridg. P. C. 61. (r) 29 Car. 2, c. 3. 
 
 (s) In the first part of the clause are the words " seised or possessed,'' but after- 
 wards, in two places, there occurs the word "seised" only. 
 
 (t) Lyster v. Dolland, 3 B. C. C. 478 ; S. C. 1 Yes. jun. 431 ; Scott v. Scholey, 
 8 East, 467 ; Metcalf v. Scholey, 2 B. & P. 461. 
 
 (u) Lyster v. Dolland, Scott v. Scholey, Metcalf v. Scholey, ubi supra ; Burdon 
 T. Kennedy, 3 Atk. 739. 
 
 (v) Doe V. Greenhill, 4 B. & Aid. 684; Harris v. Booker. 4 Bing. 96 : Forth v. 
 Duke of Norfolk, 4 Mad. 504, per Sir J. Leach. 
 
 (w) Hunt V. Coles. Com. 226; Harris v. Pugh, 4 Bing. 335.
 
 PROPERTIES OP CESTUI'S QUE TRUST ESTATE. 537 
 
 judgment creditor could not prosecute a legal execution, he might not 
 subject the purchaser, if affected with notice, to an equitable clcgit.{x) 
 It was said, that as there was no execution at law and equity followed 
 the law, the creditor was without redress; but in this argument the prin- 
 ciple that equity follows the law seems to be wrongly applied. A judg- 
 ment binds a legal estate, and, as equity follows the law, a judgment is 
 therefore in equity a lien upon the trust. The Statute of Frauds intro- 
 duced an additional remedy by enabling the judgment creditor, in cer- 
 tain cases, to take legal execution of a trust. But affirmative statutes 
 do not abridge the common law,(,y) and therefore the creation of a legal 
 remedy in certain cases provided for by the act cannot preclude the judg- 
 ment creditor from *prosecuting his equitable elegit in other cases r*pf»p-i 
 for which the statute has made no provision. The enactment L J 
 was clearly meant to be remedial, but the doctrine contended for would 
 impress on it a restrictive character, and convert it into a disabling sta- 
 tute. Lord St. Leonards observes, '< The difficulty in the way of the 
 relief would be, that no instance of it can be found after the most dili- 
 gent search." The reason probably is, that judgments have only in 
 modern times been held to bind equitable interests at all : the doctrine 
 was certainly not established before the Statute of Frauds. But the sys- 
 tem of trusts has from that period downwards been gradually maturing, 
 and the principles which governed uses, and were thence transferred into 
 trusts, have since not indeed been abandoned, but received a much more 
 enlarged and liberal application. Now that judgments are acknowledged 
 to be liens upon equitable interests, the consequence must necessarily 
 follow, that a purchaser must be bound by notice of a judgment, as he 
 would be bound by notice of any other equitable incumbrance. 
 
 By the late act for extending the remedies of creditors, (^) it is enacted 
 1. By sect. 11, That execution at laic maybe had under an elegit of the 
 whole lands freehold and copyhold, of which the debtor was seised or 
 possessed at law or in equity, or over which he had a disposing power,(a) 
 at or subsequently to the entering up of the judgment. 2. By sect. 13, 
 That in equity a judgment shall operate as a charge upon the whole of 
 the lands freehold and copyhold of which the debtor was seised or pos- 
 sessed at law or in equity, or over which he had a disposing power, at or 
 subsequently to the entering up of the judgment, with a proviso that the 
 creditor shall not sue until the expiration of a year from the date of the 
 judgment,(i) and that the protection in equity of purchasers for valuable 
 consideration without notice shall not be disturbed. 3. By sect. r*ggY-| 
 18, *That decrees and orders of courts of eijuity, rules of courts L J 
 
 {x) See 2 Vend, and Purch. 38G. lOtli ed. ; Coote ou Mortg. p. 71 ; 2 Powel, 
 Mortg. G20. 
 
 (y) Attorney-General v. Andrew, Hard. 27; 2 lust. 472. 
 (z) 1 & 2 V. c. 110. 
 
 (a) A trust for the separate use of a married woman is not an estate over which 
 she has a disposing power within the meaning of the act; Digb}' v. Irvine, G Ir. 
 Eq. Rep. 149. Neither is the power of the settlor to defeat a voluntary settlement 
 by means of the 27 Eliz. c. 4, a disposing power within the Act of Vict.; Beavan 
 v. Earl of 0.\ford, 2 Jur. N. S. 121. 
 
 (b) See Smith v. Hurst, 1 Coll. 705, and S. C. 10 Hare. 43 : Mackinnon v. Stew- 
 art, 1 Sim. X. S. 7G, p. 91.
 
 538 LEW IX ON THE LAW OF TKUSTS, ETC. 
 
 of common law, kc, whereby any sum of money, or any costs, charges, 
 or expenses shall be payable to any person, shall have the effect of judg- 
 ments.(c) But, 4. By sect. 19, That no judgments, decrees, or orders, 
 shall affect real estate iy virtue of the act, unless and until they have 
 been refistered with the senior master of the Court of Common Pleas. 
 
 It is observable upon these clauses, that an equitahle estate, whether 
 of freehold or copyhold tenure, and whether of freehold or leasehold 
 interest, and without any restriction to the time of execution sued, as in 
 the 10th section of the Statute of Frauds, was subjected by the act to 
 execution at law by writ of elegit (s. 11), and to quasi execution in equity 
 by way of charge (s. 13). In the latter case purchasers without notice 
 were expressly protected (s. 13), but in the former case not : a pur- 
 chaser, therefore, even of an equitable interest, after the commencement 
 of the act, was required by this statute to search the registry at the 
 common pleas for judgments entered up against the vendor; and that 
 whether before or subsequently to the act, for the time of entering up 
 the judgments was immaterial, provided they had been registered. It 
 may be thought anomalous and inconsistent that a purchaser should not 
 be protected at law by want of notice, while he was in equity ; but the 
 intention of the legislature probably was, in giving a remedy both at law 
 and in equity, not to disturb the principles upon which the respective 
 courts acted; and therefore if the trust was a^j?am one, and so amena- 
 ble to a legal elegit, the judgment creditor might take the lands in exe- 
 cution even against a purchaser without notice ; but if the trust was so 
 complicated as to oblige him to apply to a court of equity, and treat the 
 judgment as a charge, the court by the act was not to disregard its esta- 
 blished rules, but, as in all other cases, was to protect a purchaser with- 
 out notice. 
 
 „„„ *Afterwards another statute was passed (2 & 3 V. c. 11,) by 
 L ' -I which it was enacted, — 1. By section 2, that no judgment what- 
 soever should affect any lands, tenements, or hereditaments as to purcha- 
 sers, mortgagees, or creditors, unless previously registered at the common 
 pleas, according to the provisions of the act 1 & 2 V. c. 110. 2. By 
 section 4, that all judgments, decrees, rules, and orders, registered, or to 
 be registered, at the common pleas according to the provisions of the act 
 
 1 & 2 V. c. 110, should at the expiration of five years, be null and void 
 against lands, tenements, and hereditaments, as to purchasers, mortga- 
 gees, or creditors,(d\ unless they should have again been registered in the 
 common pleas within five years before the right, title, estate, or interest 
 
 (c) A decree for an account merely is not within the section; Chadwick v. Holt, 
 
 2 Jur. N. S. 918. Neither is a rule of a court of common law which does not 
 specify the sum to be paid; Jones v. Williams, 11 Ad. & Ell. 175 ; Doe v. Amey. 
 8 M. & W. 565 ; though, as respects costs, the case is different; Jones v. Williams, 
 8 M. & W. 349 ; Doe v. Barrell, 10 Q. B. Eep. 565. 
 
 (d) These words mean purchasers, &c., becoming such after the omission to re- 
 register, so that, if A. and B. be respectively first and second judgment creditors 
 who both duly register, A. does not, by subsequently omitting to re-register, lose 
 his priority over B.; Eeavan v. Lord Oxford, 1 Jur. N. S. 1121 ; and see Simpson 
 V. Morley, 1 Kay & J. 71 ; Beavan v. Earl of Oxford, now reported, 6 De Gex, M. 
 & G. 492.'
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 539 
 
 of such purchasers, mortgagees, or creditors accrued. (e) 3. By section 
 5, that as against purchasers and mortgagees iviihout notice, no judgment, 
 decree, or order, should have a greater effect than a judgment would 
 have had against such purchaser or mortgagee before the passing of 1 & 
 2 V. c. 110. By virtue of these clauses the execution that might under 
 the former statute have been taken out at law against an equitable interest 
 in the hands of a purchaser without notice was, in common with every 
 other advantage given by the former statute against such purchaser, re- 
 called,(/) and a purchaser was not required to carry his search back beyond 
 the period of five years. 
 
 A singular result of the 5th section is, that in the occasional, though 
 rarely occurring cases of a purchase or mortgage without notice of a pre- 
 viously registered judgment, the old law, as it existed before the 1 & 2 
 Yict. c. 110, must be resorted to for guidance. It is therefore impossi- 
 ble to treat the old law respecting judgments as obsolete. 
 
 This act, however, still left open the question whether by analogy to 
 the cases under the registry acts a purchaser; mortgagee, or creditor, if 
 he had actual notice of an unregistered *judgment, was not bound rji^p/^Qn 
 by it ; and a subsequent act, 3 & 4 V. c. 82, was passed to obvi- L -■ 
 ate this objection. It was thereby enacted, by the second section, that 
 no judgment, decree, order, or rule should, hy virtue of the said act (1 
 & 2 V. c. 110,) affect any lands at law or in equity as to purchasers, 
 mortgagees, or creditors, until registration^^) under the said act at the 
 common pleas, any notice of such judgment, decree, order, or rule to any 
 such purchaser, mortgagee, or creditor, in anywise notwithstanding. 
 
 It being, however, doubted whether this act protected a purchaser, 
 mortgagee, or creditor from the effect of notice as to any remedy against 
 him which the judgment creditor had before, independently of the 1 & 
 2 Y. c. 110, or whether its effect was not limited to protection against 
 the additional remedy given to the judgment creditor by that act,(7i) it 
 was in order to obviate this inconvenience, enacted generally, by the 
 18 & 19 V. c. 15, s. 4, that no judgment, decree, &c., which might be 
 registered under the 1 & 2 Vict. c. 110, should affect any lands, &c., at 
 law or in equity, as to purchasers, mortgagees, or creditors, unless and 
 until the memorandum, &c., should have been left with the proper officer, 
 any notice of any such judgment, decree, &c., to any such purchaser, 
 mortgagee, or creditor, in any wise notwithstanding. 
 
 It has been held under the acts extending the remedies of the judg- 
 ment creditor, that as to equitable interests they are to receive the same 
 construction as the Statute of Frauds, and consequently that simple trusts 
 only can be taken in execution at law.f/) 
 
 The 14th section of the 1 & 2 Yict. introducing a new species of exe- 
 
 (e) And see 18 & 19 Vic. c. 15, s. 6. (/) Westbrookv. Blythe, 3 Ell. & BI. 737 
 
 {g) The framer of this act appears either to have overlooked, or to have been 
 ignorant of the intermediate act of 2 & 3 Yict. c. 11, and to have left it doubtful 
 whether re-registration within five years was necessary to exclude the title of a 
 purchaser with notice. This doubt is now set at rest by sect. 5 of the 18 & 19 
 Vict. c. 15. 
 
 (h) See Beere v. Head, 3 Jo. & Lat. 340. 
 
 (j) Digby V. Irvine, 6 Ir. Eq. Rep. 149.
 
 540 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 cution against stock and shares in public funds and public companies, 
 deserves a separate consideration. By that section it was enacted that 
 if any person against whom *any judgment^/,-) should have been 
 L -I entered up in any of her majesty's superior courts at Westminster, 
 should have any government stock, funds, or annuities, or any stock or 
 shares of or in any company in England, standing in his name in his 
 own right, or in the name of any lyet&on In trust for Mm,{J) it should be 
 lawful for the judge of one of the superior courts, on the application of 
 any judgment creditor, to order that such stock, &c., should stand charged 
 with the payment of the amount for which judgment should have been 
 recovered, and such order should entitle the judgment creditor to all 
 such remedies as he would have been entitled to if such charges had 
 been made in his favour by the judgment debtor, provided that no pro- 
 ceedings should be taken to have the benefit of such charge until after 
 the expiration of sis calendar months from the date of such order ; and 
 by the next following section of the act it is provided that the order of the 
 judge shall be ex parte in the first instance, and on notice to the bank or com- 
 pany shall operate as a distrinyas, and that no disposition of the judgment 
 debtor in the mean time shall be valid as against the judgment creditor. 
 
 The leading points decided and discussed with reference to this new 
 species of execution will be shortly adverted to. 
 
 1. In the ordinary case of a judgment at law, the application for the 
 charging order must be made to one of the common law judges, even though 
 the stock to be charged be standing in the name of the accountant-gene- 
 ral of the Court of Chancery. (;?i) But where a charging order is to be 
 made in furtherance of a decree of the Court of Chancery, it will properly 
 be made by a judge of the Court of Chancery. (?A 
 
 2. Where stock or funds are vested in trustees, and a judgment debtor 
 appears to be interested therein, the charging order will be made at law, 
 so as to affect the interest of the judgment debtor, whatever it may be, 
 r^p-i-i leaving it to the trustees, *if the precise amount of the debtor's 
 L -I interest is not svifl&ciently defined, to say they will not act except 
 under the direction of the Court of Chancery. (o) 
 
 3. Where a charging order is made upon the partial interest of a 
 cestui que trust in stock or shares, the bank or public company whose 
 stock or shares are affected by the charging order, is not concerned with 
 questions arising between the judgment creditor and other persons in- 
 terested in the trust fund, but is bound, in like manner as before the 
 charging order, to pay the dividends to the trustees.(p) 
 
 4. The proviso at the end of the 14th section, forbidding proceedings 
 until after six calendar months, applies only to proceedings for enforcing 
 immediate payment of the debt by realizing the security, and does not 
 
 (k) Extended to Decrees, &c., by sect. 18. 
 
 (l) By the 3 & 4 Vict. c. 82, s. 1, the property intended to be embraced by this 
 section is further defined. 
 
 (m) Hulkes v. Day, 10 Sim. 41. 
 
 («) Stanley v. Bond, 7 Beav. 386 ; Westby v. Westby, 5 De G. & Sm. 516 ; 
 Wells V. Gibbs, 22 Beav. 204. 
 
 (o) Fowler v. Churchill, 11 M. & W. 57. 
 
 (j>) Churchill v. Bank of England, 11 M. & W^ 323.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 541 
 
 prevent the judgment creditor from taking steps to prevent the security 
 given him by the statute from being in the mean time defeated or dimi- 
 nished. Thus, where the funds are standing in the name of the account- 
 ant-general, the judgment creditor may, within the six months, apply 
 for a stop order to restrain the debtor from receiving dividends accruing 
 within the six months. (5) 
 
 5. The question as to the precise effect of the charge obtained under 
 a charging order, in reference to the claims of other incumbrancers on 
 the trust fund, has been the subject of much difference of opinion. lu 
 a late case, where stock was vested in trustees, and A., having a bene- 
 ficial interest therein, charged that interest in favour of B., and subse- 
 quently C. recovered judgment against A., obtained a charging order on 
 A.'s interest, and, before any notice given by B., gave notice to the 
 trustees of his having obtained the charging order, it was held by three 
 judges of the Court of Queen's Bench, Lord Campbell, C. J., Wight- 
 man & Crompton, J. J., (Erie, J., dissentiente,\ that C, the judgment 
 creditor, was entitled to priority over B.(r) This decision has been 
 much criticised. It is opposed to the analogous decisions on the r-^p.jn-, 
 *llth and loth sections of the act,(s) and it may safely be said, L J 
 in the words of high legal authority, that the opinion of the single judge 
 seems to be the correct one.(^) 
 
 The law as to priority of judgments in the case of lands lying in a 
 register county is, by the combined effects of the County Registry Acts 
 and of the Acts of the Queen before referred to, in a singular position. 
 
 It is clearly settled that the County Register Acts are still in force, 
 and consequently that, in order to give priority to a judgment creditor 
 over a subsequent purchaser or mortgagee icithout notice, his judgment 
 must be registered both in the county register and in the common pleas, 
 before the completion of the purchase or mortgage. (?«) And as between 
 two judgment creditors, having no notice of each other's claim, the one 
 who first completes his registry in both the county registry and the com- 
 mon pleas, obtains precedence. (i-) 
 
 Where the subsequent purchaser or mortgagee lias notice of a prior 
 judgment, the question will be, whether the judgment was registered at 
 the common pleas before the completion of the purchase. or mortgage, 
 since, as we have before seen, unless so registered it cannot bind, not- 
 loithstandinrj the notice. But if duly registered in the common pleas, 
 then, according to the old decisions, notice to the purchaser or mortgagee 
 will, in equitij, though not at law, supply the want of registration in the 
 county, (if;) 
 
 It is difficult, however, to reconcile the expressions with reference to 
 
 {q) Watts v. Jefferyes, 3 Mac. & Gor. 372; and see Bristed v. 'Wilkiiis, 3 Hare, 
 235 ; Wells v. Gibbs, 22 Beav. 204. 
 
 (r) Watts V. Porter, 3 Ell. & Bl. 743. 
 
 (s) Whitworth v. Gaugain. 3 Hare, 416, 1 Phil. 728; Beavan t. Earl of Oxford, 
 2 Jiir. N. S. 121 ; Kiuderley v. Jcrvis, 22 Beav. 1. 
 
 (/) Vend, and Pur., 13th edit. p. 430, note (I). 
 
 («) Westbrook v. Blythe, 3 Ell. & Bl. 737. 
 
 \v) Hughes V. Lumley, 4 Ell. & Bl. 274. 
 
 (?<-) Tunstall v. Trappcs, 3 Sim. 301 : Davis v. Earl of Strathmore, 16 Ves. 427. 
 
 April, 1858.— 35
 
 542 LEW IN ON THE LAAV OF TRUSTS, ETC. 
 
 this subject contained in a late judgment of the present lord chancellor 
 (when vice-chancellor) with the older cases. (;r) 
 
 [*673] ^SECTION VII. 
 
 OF EXTENTS FROM THE CROWN. 
 
 A trust whether of a term or of a freehold, is liable to an extent from 
 the crown ;(y) and this not by the effect of any legislative enactment, but 
 per cursum scaccarii at common law.(2;) The words of the writ issued 
 to the sheriff are to hold inquest of the lands whereof the debtor, not 
 seisifus fuit, but haliiit vel seisitus fuit, and a person may be said to 
 have lands, when by subpoena in chancery he may exercise any dominion 
 over them. (a) 
 
 At common law the extent of the crown did not authorize a sale of the 
 lands, but only the perception of the rents and profits, until the amount 
 of the debt was levied ;(i) this defect was supplied partially by a statute 
 of Elizabeth,(c) and more effectually by the 25 G. 3, c. 35. It is by the 
 latter statute enacted, that '' it shall be lawful for his majesty's court of 
 exchequer, and the same court is thereby authorized, on the application 
 of his majesty's attorney-general(«i) in a summary way by motion[e) to 
 the same court, to order that the right, title, estate, and interest of any 
 debtor to his majesty, his heirs and successors, and the right, title, estate, 
 and interest of the heirs and assigns of such debtor, which have been or 
 shall be extended under and by virtue of any extent or diem clausif 
 extremum, shall be sold as the court shall direct, and the conveyance 
 shall be made by his majesty's remembrancer in the said court of exche- 
 quer or his deputy, *under the direction of the said court, by a 
 L -» deed of bargain and sale to be inrolled in the said court." 
 
 By the effect of this enactment, a trust or equity of redemption(/) of 
 a crown debtor may now be sold upon summary application to the Court 
 of Exchequer by motion. 
 
 SECTION VIII. 
 
 OF FORFEITURE. 
 
 A trust of lands is not forfeitable at common law for attainder either 
 of treason or felony 5(5') for forfeiture works only upon tenure, and a trust 
 
 (x) Johnson v. Holdsworth, 1 Sim. N. S. 106. 
 
 (y) King T. Lambe, M'Clel. 422, per Sir W. Alexander ; Chirton's case, Dyer, 
 160 a; S. C. cited Sir E. Coke's case, Godb. 293; the cases cited Id. 294 ; Id. 298 ; 
 Babington's case, cited Id. 299; King v. Smith, Vend. & Purch. Append. No. xv ; 
 1 1th ed., per Ch. Baron Macdonald. 
 
 (z) Attorney-General v. Sands, Hard. 495, per Lord Hale. 
 
 (a) See Sir E. Coke's case, Godb. 294. 
 
 (6) Rex T. Blunt, 2 Y. & J. 122, per Baron HuUock. 
 
 (c) 13 Eliz. c. 4. {d) See Rex v. Bulkeley, 1 Y. & J. 256. 
 
 (e) See Rex v. Blunt, 2 Y. & J. 120. (/) King v. De la Motte, Forr. 162. 
 
 {g) Attorney-General v. Sands, Hard. 495, per Lord Hale ; 1 Hale's P. C. 247 ; 
 Jeuk. 190.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 543 
 
 is holden of nobody. The ground of the forfeiture is, that all estates are 
 upon condition of duty and fidelity to the lord, and upon breach of alle- 
 giance they return to the king, from whom they originally proceeded. (/i) 
 
 The exemption of the use from forfeiture was remedied in the ease of 
 treason, by the 26 H. 8, c. 13, s. 5, whereby it was enacted, that "every 
 offender convicted of high treason hj i:)rescntment, confession, or process 
 of outlwwry, according to the due course and custom of the common laws 
 of the realm, should forfeit to the king all such lands, &c., which such 
 offender should have of any estate of inheritance in use m possession T 
 
 The following year was passed the 27 H. 8, by which uses were 
 abolished, and, as the trust which grew up in the place of the use was 
 held to be an interest sxd generis, and not within reach of the statutes 
 directed against uses, the legislature was again called upon to interpose 
 some special enactment to remedy the defect. 
 
 The 33 H. 8, c. 20, s. 2, declared, that "if any person or persons 
 should be attainted of high treason by the course of the common laics or 
 statutes of the realm, every such attainder *by the common law(^i\ r-^r^^r-, 
 should be of as good strength, value, force, and effect, as if it L J 
 had been done by authority of parliament; and that the king's majesty, 
 his heirs and successors, should have as much benefit and advantage by 
 such attainder, as well of itses, rights, entries, conditions, as possessions, 
 reversions, remainders, and all other things, as if it had been done and 
 declared by authority of parliament, and should be deemed and adjudged 
 in actual and real possession of the lands, tenements, hereditaments, 
 uses, goods, chattels, and all other things of the offenders so attainted, 
 which his highness ought lawfully to have, and which they, so being 
 attainted, ought or might lawfully lose and forfeit, if the attainder had 
 been done by authority of parliament, without any office or inquisition 
 to he found of the same." 
 
 Notwithstanding this statute, it was held in King v. Daccombe,(^) 
 and is said to have been also resolved in Abington's case that the trust of 
 a freehold was not forfeited upon attainder of treason ; and it has been 
 remarked, that this doctrine " may be thought to be founded on reason, 
 because it is not pretended that the statute of 26 H. 8, can embrace trusts 
 which have succeeded to uses, and it does not appear to have been the 
 intention of the 33 H. 8, to create a forfeiture of any equitable estates 
 which has sprung up since the former act. The statute had other ob- 
 jects."(/) 
 
 To understand the scope of the enactment it must be observed, — 1. 
 That previously to the 33 H. 8, it was only in the case of a person attainted 
 by act of parliament, and then by a special proviso, that the king was 
 put in immediate possession of the offender's lands, for in attainders by 
 ordinary course of law, whether by common law or under a statute, the 
 
 (A) Gilb. on Uses, 38. 
 
 (i) This includes the general statutes of the realm, as opposed to a special act 
 attainting a particular individual. 
 
 (k) Cro. Jac. 512. 
 
 (l) Gilb. on Uses, by Lord St. Leonards, 78, note 9; and see Burgess r.Wheate, 
 1 Ed. 221. '
 
 544 LEWIX ON TUB LAW OF TRUSTS, ETC. 
 
 king was not in possession until office found. 2. That the 26 H. 8, had 
 extended the forfeiture to lands in use or possession, but not to rights, 
 entries or conditions ; and now that the 27 H. 8, had passed, the 26 H. 8, 
 was not even appUcable to uses, or, as they were henceforth to be called, 
 trusts. 3. That the *26 H. 8, had embraced attainders hj2:>resent- 
 L -I ment, confession, verdict, or process of outhncry, but had omitted 
 other cases, as where the offender stood mute. The intention of the legis- 
 lature then, in passing the 33 H. 8, was, as resolved in Dowtie's case,(m) — 
 
 1. To vest the actual possession in the king by the attainder icithout office ; 
 
 2. To extend the forfeiture to rights, entries, conditions, &c., which had 
 hitherto not been affected by attainder; and, 3. To apply the statutory 
 provisions to all cases of attainder, including those which the 26 H. 8, had 
 accidentally omitted. 
 
 Assuming the act to have had a remedial scope, can it be supposed, 
 that, when "rights, entries, and conditions," were, for the first time, 
 made forfeitable by virtue of this enactment, the word " uses," which 
 occupies the first place in the series, should have been inserted as mere 
 surplusage, remembering that uses, by having been turned into posses- 
 sions by the 27 H. 8, had escaped the forfeiture imposed upon them by 
 the 26 H. 8 ? The insertion of the word " uses" can be no argument that 
 ''trusts" were not intended, for at that day "uses" and "trusts" were 
 not as now contradistinguished, but were employed indifferently, as terms 
 perfectly synonymous. 
 
 In support of this reasoning may be cited the opinions expressed by 
 Baron Turner and Lord Hale, in the well-considered case of Attorney- 
 General V. Sands. (n) And Lord Hale afterwards recurs to the subject 
 in his pleas of the crown, (o) and argues the point there with considerable 
 strength of reasoning : — " By the statute of 27 H. 8," he says, " all uses 
 were drowned in the land ; but there have succeeded certain equitable 
 interests called trusts, which differ not in substance from uses; nay, by 
 that very statute they come under the same name, viz., uses or trusts. 
 By the statute 33 H. 8, there is a special clause that the person attainted 
 shall forfeit all ' uses ;' and what other uses there could be at the making 
 of the statute 33 H. 8, but only trusts such as are now in practice and 
 retained in chancery, I know not. It was agreed in the Earl of Somer- 
 P^^---, set's case, and so resolved *in Abington's case, that a trust of a 
 L -I freehold was not forfeited by attainder of treason. But how this 
 resolution in Abington's ease can stand with the statute of 33 H. 
 8, I see not ; for certainly the uses there mentioned could be no other 
 than trusts; and therefore the equity or trust itself, in cases of attain- 
 der of treason, seems forfeited by the statute, though possibly the land 
 itself he not in the king."(jj) 
 
 Equities of redemption appear to be forfeitable for attainder of treason 
 
 (m) 3 Re. 9, b. («) Hard. 495 ; S. C. Nels. 131 ; S. C. Freem. 130. 
 
 (o) 1 P. C. 248. 
 
 {p) In Attorney-General v. Sands, it was laid down, according to Nelson's 
 report (p. 131.) that the estate was executed in the king by force of the statute; 
 but, according to Freeman (p. 130,) that the estate was to be executed in the 
 king by a court of equity. Id. qu.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 545 
 
 under the 33 H. 8 -j^q) for the statute has enumerated conditlom, and 
 the interest of the mortgagor is a condition which, though broken at law, 
 is saved whole to him in a court of equity. 
 
 A trust in favour of an alien is forfeitable to the crown without statute 
 on the principle of public poUcT/ ; for at law an alien has no capacity to 
 purchase lands, lest the realm should be impoverished, if the revenues 
 might be transported into foreign countries, and put in subjection under 
 a foreign prince ;(r) and if an alien were allowed to receive the rents 
 and profits of lands in equity, the mischief would be the same. How- 
 ever, the legal estate is not forfeited, but the king must prosecute his 
 right by siihpa^na in the Court of Chancery •.{s\ and this he may do with- 
 out any office found or inquisition taken. (/) 
 
 Trusts of cJiatfels, whether real or personal, were always deemed for- 
 feitable to the crown ;(«) and if a term be in trust for the wife of the 
 felon, but not for her separate use, it seems the trust shall be affected by 
 the forfeiture of the husband. (?') But in these cases the forfeiture reaches 
 not to the chattel *itself, but merely entitles the king to sue a ^^^„„ 
 suhjjoena in equity. («•) L J 
 
 At law a tenant for life may, by certain tortious acts, as by a feoffment 
 of the fee simple, forfeit his estate to the remainderman ;(x) but if an 
 equitable tenant for life affect to dispose of the equitable fee, no for- 
 feiture is incurred, for nothing passes beyond the grantor's actual inte- 
 rest, (y) 
 
 SECTION IX. 
 
 OF ESCHEAT. 
 
 A trust in fee of lands is not subject to escheat. (,t) This was deter- 
 mined in the great ease of Burgess v. Wheate,(«) before Lord Northing- 
 ton, assisted by Lord Mansfield and Sir T. Clarke. The arguments of 
 these eminent judges, too long for insertion in this place, are replete with 
 learning, and will amply repay a very careful perusal : it must be men- 
 
 (q) Anon, case, cited Reeve v. Attorney-General, 2 Atk. 223. 
 
 (r) See Holland's case, Styl. 21 ; Collingwood v. Pace, 0. Bridg. 431. 
 
 (s) Attorney-General v. Sands, Hard. 495, per Lord Hale. 
 
 (t) Burgess v. Wheate, 1 Ed. 187, per Sir T. Clarke. 
 
 (u) Wikes's case. Lane, 54, agreed; King v. Daccombe, Cro. Jac. 512; Jenk. 
 190, case 92; Attorney-General v. Sands, Hard. 405 ; Pawlett v. Attorney-General, 
 Hard. 467, per Lord Hale ; Sir J. Back's case cited Holland's case, Al. 16. Chattel 
 interests accruing to a felon after conviction, but before restoration to civil rights, 
 are forteited to the crown. Roberts v. Walker, 1 R. & M. 752. Secus as to chattels 
 accruingsubscquently to such restoration. Stokes v. Holden, 1 Keen, 145; Gough 
 V. Davies, 2 K. & J. 623 ; Thompson's Trusts, 22 Beav. 506. 
 
 (v) Wikes's case. Lane, 54, per Barons Snig and Althara. 
 
 (ic) Holland's case, Al. 14; Sir J. Back's case as cited by Rolle, J. Id. 16; 
 Attorney-General v. Sands, Hard. 495, per Lord Hale ; and see Kildare v. Eustace, 
 2 Ch. Ca. 188 ; S. C. 1 Vern. 405, 419, 423, 428, 437. 
 
 (z) See Co. Lit. 251 a. 
 
 (ij) Lethieullier v. Tracy, 3 Atk. 728, 730 ; Lady Whetstone v. Bury, 2 P. W. 146. 
 
 (z) Attorney-General v. Sands, Hard. 488 ; and see 1 Harg. Jurid. Exerc. 383. 
 
 («} 1 Ed. 176 ; S. C. 1 W. Black. 123.
 
 546 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 tioned, liowever, that Sir. T. Clark and Lord Mansfield, while they pur- 
 sued different lines of reasoning, carried their principles to too great an 
 excess. Sir Thomas Clarke contended that trusts must be governed 
 strictly by uses, and, therefore, as no escheat in equity was of a use, there 
 could be none of a trust. But this position is too large ; for trusts do 
 not follow absolutely the law of uses : for then no curtesy would be of a 
 trust, the judgment creditor would have no lien, and equitable interests 
 would not be assets. Lord Mansfield, on the other hand, advanced the 
 doctrine, that, as lands escheat at law, so trusts must escheat in equity ; 
 that trusts, since the statute of H. 8, are not regulated by uses, but the 
 maxim is, " Equity follows law," — " The trust is the estate." But to 
 this it must be answered, that a trust has always been recognised as a 
 r*r7an *^i°& **'"^ generis, not as identical with the legal fee : it binds 
 L J not, for instance, a purchaser for valuable consideration without 
 notice. The intermediate opinions of Lord Northington are to be regarded 
 as those most in accordance with the general system : trusts, he thought, 
 were to be administered on the footing of uses ; but not, as Sir Thomas 
 Clark maintained, to the exclusion of the improvements adopted subse- 
 quently to the statute of H. 8 : he agreed with Lord Mansfield, that 
 trusts imitated the legal possession ; but he added the qualification, as 
 between the privies to the trust only, and not as respected strangers. 
 " Equity," he said, '' follows the law ; and, as between the cestui que 
 TRUST and those claiming by, from, and under him, it is equity that he 
 should be considered as formally possessed of that estate of which he is 
 and appears substantial owner. It is true this court has considered 
 trusts, as betioeen the trustee, CESTUI QUE TRUST, and those claiming 
 under them, as imitating the possession ; but it would be a bold stride, 
 and, in my opinion, a dangerous conclusion, to say, therefore, this court 
 has considered the creation of a trust as a mere nullity, and the estate in all 
 respects the same as if it still continued in the seisin of the creator of the 
 trust or the person entitled to it. My objection to the claim of the lord is, 
 that it is for the execution of a trust that does not exist. Where there is a 
 trust, it should be considered in this court as the real estate between the 
 cestui que trust, and tlie trustee, and all claiming by or under them; 
 and the trustee should take no beneficial interest that the cestui que trust 
 can enjoy; but, for my own part, I know no instance where this court 
 ever permitted the creation of a trust to affect the right of a third." (^b'j 
 The determination in Burgess v. Wheate has been followed in more 
 recent eases, (c) and the principles there laid down have been held by 
 the present master of the rolls to apply to the case of a mortgage in fee, 
 and the subsequent death of the mortgagor intestate, his honor deciding 
 that in such case the equity of redemption does not escheat to the crown, 
 but belongs to the mortgagee, subject to the debts. («^) 
 
 (5) 1 Ed. 250. 
 
 (c) Taylor v. Haygarth, 14 Sim. 16 ; Davall v. New River Company, 3 De 6. & 
 Sm. 394; Cox v. Parker, 22 Beav. 168. 
 
 (d) Beale v. Symonds, 16 Beav. 406. 
 
 I
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 547 
 
 1 
 
 *SECTION X. [*680] 
 
 THE DESCENT OF THE TRUST. 
 
 A trust is governed by the same rules of descent as the legal estate is 
 on which the trust is ingrafted, and that whether the legal estate 
 descends according to the course of common law, or is subject to a lex 
 loci. 
 
 If one seised of land ex parte materna convey to a person upon ti'ust, 
 and no trust is expressed, the resulting interest is part of the original 
 estate, and will descend in the maternal line, and, failing the heirs ou 
 the part of the mother, will rather absolutely determine, than pass into 
 the paternal line.(e) But if one seised ex parte materna devise to A. 
 and his heirs upon trust for a person for life, and then in trust to convey 
 to the testator's heir at law, this breaks the descent, and the heir ex 
 parte paterna is entitled to the equitable remainder.(/) 
 
 If the land be subject to gavelkind, borough English, or other custom, 
 the equitable interest will follow the same course of inheritance. (^) 
 
 And a trust of copyholds as well as of freeholds is governed by the 
 descent of the legal estate. (/;) 
 
 The analogy to law is so strictly preserved, that if the last cestui que 
 trust had no seisin of the equitable estate coiTesponding to possessio 
 fratris at law, the trust will descend to the brother of the half blood, 
 not to the sister of the whole blood. (i"i But, by the late act the half 
 blood is now capable of inheriting estates, whether legal or equitable. (A) 
 
 If a settlement contain a power of sale, with a trust to *rein- rj^^^o-i-i 
 vest the proceeds in a purchase to the same uses, and the lands L -I 
 be sold, but the proceeds be not reinvested, though the bulk of the 
 estate sold was of gavelkind tenure, yet if one of the uses be to A. and 
 his heirs, the proceeds of the sale will descend to the heirs of A. at 
 common law, and not to the heirs by the custom of gavelkind. (?) 
 
 And if gavelkind lands be limited to a person's heirs as p?(/-<:'7«as£rs 
 the common law heirs and not the customary heirs are entitled ; as 
 where a testator directed trustees to stand seised of gavelkind lands for 
 the separate use of A. for life, and so as her husband should not inter- 
 meddle therewith, and after her death upon trust to convey to the heirs 
 of her body for ever. Lord Hardwicke held that the trust was executory, 
 and that the court must therefore look to the intention, which was to 
 give a life-estate to A., and the remainder to the heirs as purchasers ; 
 for, as the husband was not to intermeddle therewith, his curtesy was 
 
 (e) Burgess v. Wheate, 1 Ed. 177, see 186, 216, 256 ; Langley v. Sneyd, 1 Sim. 
 & Stu. 45. 
 
 (/) Davis V. Kirk, 2 Kay & John. 391, 
 
 \g) Fawcett v. Lowther, 2 Ves. 304, per Lord Hardwicke ; Banks v. Sutton, 2 
 P. W. 713, per Sir J. Jekyll; Jones v. Reasbie, 22 Vin. Ab. 185, pi. 7. 
 
 (A) Trash v. Wood, 4 M. & Cr. 324. 
 
 \i) Banks v. Sutton, 2 P. W. 713, per Sir J. Jekyll; Cowper v. Earl Cowper, lb. 
 736, ^er eundem; Cunningham v. Moody, 1 Ves. 174; Co. Lit. 14 b ; and see the 
 cases cited Casborne v. Scarfe, 1 Atk. 604. 
 
 (k) 3 & 4 W. 4, c. 106, s. 9. (/) Hougham v. Sandys, 2 Sim. 95, see 153.
 
 5i8 LEWIX ON THE LAW OF TRUSTS, ETC. 
 
 to be excluded, wbicli would not be the case if A. were tenant in tail. 
 A conveyance of tbe legal estate was therefore directed to the eldest son 
 and tbe heirs of bis body, with remainder to tbe second son, and tbe 
 heirs of his body, &c. " Not," added Lord Hardwicke, " according to 
 tbe custom of gavelkind, because it must go according to tbe rule of 
 common law, being not a trust executed, but executory."(w?) 
 
 SECTION XI. 
 
 OP ASSETS. 
 
 The trust of a chattel was always accounted assets in equity.(7i) 
 
 But whether the trust of a. freehold should be assets in tbe bands of 
 the heir for payment of debts by specialty was for a long time vexata 
 r*fi89T 9'^<^^f^o. On the one hand it was argued, *that the trust ought 
 L "'-1 to follow tbe use, and that the use was not liable to a bond credi- 
 tor ; on tbe other band it was said, that the trust since tbe Statute of 
 Uses bad been conducted by tbe courts on more liberal principles, and, 
 as tbe legal fee was available to tbe discbarge of specialty debts at law, 
 so a court of equity ought to adopt the same rule in tbe administration 
 of trusts. 
 
 It was determined by Lord Hale, Chief Justice Hyde, and Justice 
 Windham, in the case of Bennet v. Box, that a trust in fee should 7wt 
 be assets j(o) and Lord Keeper Bridgman afterwards felt himself bound 
 by the authority of this decision in respect of a trust,(^p\ though be 
 doubted somewhat as to an equity of redemption ;{(j^ and so the law as 
 to a trust was laid down b}'^ Lord Hale in Attorney-General v. Sands. (r) 
 
 The question was renewed before Lord Nottingham in the case of 
 Grrey v. Colvile.(i.) John Colvile gave a bond to Lady Grey for 1500/., 
 aud died intestate. The obligor in his lifetime bad purchased lands in 
 tbe names of himself and Wise, to hold to them for their lives, remainder 
 to Sir John and his heirs, and other lands in the names of Morris and 
 Saunders in trust for Sir John in fee. Lady Grey brought an action at 
 law against the heir, who (the case occurring prior to the Statute of 
 Frauds) pleaded riens per descent in prcesenti, but only tbe reversion of 
 the lands expectant on tbe decease of Wise. Lady Grey then filed a bill 
 in chancery to have the trust estates declared assets in equity, and Lord 
 
 (m) Roberts v. Dixwell, 1 Atk. 607 ; and see Thorp v. Owen, 2 Sm. & GiflF. 90. 
 
 {n) Attorney-General V. Sands, Freem. 131; Barthrop v. West, 2 Ch. Re. 62; 
 Duke of Norfolk's case, 3 Ch. Ca. 10. 
 
 (o) 1 Ch. Ca. 12. {p) Pratt v. Colt, 1 Ch. Ca. 128; S. C. Freem. 139. 
 
 Iq) Trevor v. Perryor, 1 Ch. Ca. 148. 
 
 (r) Hard. 490 ; S. C. Freem. 131 ; S. C. Nels. 134. 
 
 (s) 2 Ch. Re. 143. This case has been the most unfortunately reported of any 
 perhaps in the books. In p. 143, for " the defendant's wife," read " the defendant 
 Wise;" and a few lines after, for " wife," read "Wise." In page 144, for " Colvile 
 and his wife," read " Colvile and Wise ;" for "of one lease," read "of one Leke," 
 and correct the passage thus : " The said Josia also insists, that the premises are 
 incumbered by a former judgment of one Leke for 800Z., and that the plaintiff's 
 creditors, and other the creditors, &c., insist they are creditors," &c. In page 
 145, for "the defendant's wife." read " the defendant Wise."
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 549 
 
 Nottingham, acting on the bvoad rule of analogy to law, decreed the 
 debt to be paid. The case was afterwards reheard before Lord Guild- 
 ford, and is reported by Yeruon under the title of Creed v. Covile.(^) 
 *The plaintiff argued that Bennet v. Box was a precedent of the r^jj^no-i 
 judges' making, who were for restraining the court of chancery L "^J 
 to the strict rules of law ; that the trust of a term was assets, and why 
 not the trust of a fee-simple ; an equity of redemption was assets, and 
 why not a trust ? But Lord Guildford said, " I know the ease of Ben- 
 net y. Box has had hard words given it, and been much railed at, but 
 the decree in that cause was made upon great advice, and I do not know 
 how I could be better advised now." And he said, '^ There was a differ- 
 ence between the case of an heir and the case of an executor, and there- 
 fore the trust of a term and the trust of an inheritance were not the same 
 in this point ; for whatever money came to the hands of an executor, 
 either by sale of the term, or if money was decreed to him in a court of 
 equity, would be assets; but if an heir before action brought, sold and 
 aliened the assets, the money was not liable in his hands, (?() unless the 
 sale were with fraud and collusion ; as, if an heir sold and bought again, 
 there the new-purchased lands would be assets. And as to an equity of 
 redemption, if a man had a mortgage and a bond, before the mortgage 
 should be redeemed by the heir the bond ought to be satisfied, but he 
 did not know that an equity of redemption should be assets in equity to 
 all creditors." And his lordship said, he " should be much governed 
 by the case of Bennet v. Box, unless they could show that the latter pre- 
 cedents had been otherwise," and directed them to attend him with pre- 
 cedents towards the latter end of the term. The cause was brought on 
 again the December following, and the court ordered that the parties 
 should attend the two Chief Justices and the Lord Chief Baron, who 
 were desired to certify their opinion on the question. (r) In Michaelmas 
 term the next year, upon the motion of the defendants, it was ordered, 
 that, unless plaintiffs, the creditors, procured the certificate of the Lord 
 Chief Justices' and Lord Chief Baron's opinion by the first day of the 
 next term, *^7ie hill should he dismissed without fm-ther mot ion. (tv) r-^nni-. 
 No further proceedings appear in the cause ; and, therefore, it L J 
 must be concluded. Lord Nottingham's decision was reversed. (.>;) 
 
 Thus stood the law before the Statute of Frauds.(?/) By the 10th 
 section of that act it was declared, that " if any cestui que trust should 
 die, leaving a trust in fee simple to descend to his heir, then and in 
 every such case such trust should be deemed and taken, and was there- 
 by declared to be, assets by descent, and the heir should be liable to 
 and chargeable with the obligation of his ancestor for and by reason of 
 such assets, as fully and amply as he might or ought to have been, if the 
 estate in law had descended to him in possession, in like manner as the 
 trust descended." 
 
 This enactment must be taken to embrace simple trusts only, and not 
 
 (0 1 Vern. 1V2. {u) Since made liable bj 3 W. & M. c. 14. 
 
 (yj R. L. 1683, A. fol. 166. {w) R. L. 1684. A. fol. 210. 
 
 (2) But see Goffe v. Whalley, 1 Vera. 282. (y) 29 Car. 2, c. 3.
 
 550 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 complicated trusts,(2;) or equities of redemption. (a) But such interests 
 as are without the statute may, upon the general principles of equity, be 
 treated as assets by analogy to law. 
 
 In Plucknet v. Kirk(Z-) it was expressly decided by Lord Jeffries, that 
 an equity of redemption of a mortgage in fee *should be assets 
 L "°^J jjj equity to the payment of bond debts, and so it was held in an 
 anonymous case reported by Freeman ;(c) and the same law was recog- 
 nized in Acton V. Peirce by Lord Keeper Wright,(fZ) and was admitted by 
 Lord Hardwicke without observation in Plunket v. Penson.(c) 
 
 The doctrine established by these authorities with respect to equities 
 of redemption is directly at variance with the decision in Grey v. Colvile, 
 relating to trusts. But the maxim is generally admitted, that, as between 
 the trustee and cestui que trust and all claiming by or under them, the 
 equitable ought to imitate the legal estate, and therefore, upon principle, the 
 rule that governs equities of redemption ought equally to be applied to 
 every other equitable interest. It would be a strong position to advance, 
 that until the act of 3 & 4 W. 4, a trust was not assets unless the debtor 
 had merely a plain and simple trust ; but such would be the result, were 
 trusts only liable as assets by virtue of the Statute of Frauds. 
 
 The question, as regards debtors who have died since the 29th of 
 August, 1833, has now been rendered unimportant by the 3 & 4 W. 4, 
 c. 104, which enacts, that all a person's "estate or m^eres^ (which must 
 include a trust) in lands, tenements or hereditaments, corporeal, or 
 incorporeal, or other real estate, whether freehold, customaryhold, or 
 copyhold," shall be assets for the payment of debts as well on simple 
 contract as on specialty. 
 
 There remains to be considered the question, whether a trust shall 
 be administered as legal or equitable assets; and upon this subject we 
 shall first advert to the case of trusts of chattel interests, that is, to 
 equitable assets in the hands of the executor. 
 
 It may be remarked in limine, that if an executor recover money in 
 that character upon a trust or other equitable right, the proceeds, wJieii 
 actually come to his hands, will be legal assets, even in a court of 
 
 {z) The former part of the clause, which enables the sheriff to take a trust in 
 execution, was construed not to include a complicated trust, and therefore it is pre- 
 sumed the latter part of the clause could not be differently interpreted. 
 
 (a) Plunket v. Penson, 2 Atk. 293, per Lord Hardwicke; Sawley v. Gower, 2 
 Vern. 61, per Lord Jeffries. 
 
 (6) 1 Vern. 411; and see Lord Jeffries's opinion in Sawley y. Gower, 2 Vern. 
 61. Plucknet v. Kirk, as stated in Reg. Lib., was this : — Kirk, seised of an estate 
 in fee, mortgaged it to Sutton in fee for securing 1300Z. and interest, and afterwards 
 confessed a judgment to Plucknet for securing a loan, and two judgments to 
 Rogers for securing other loans, and became indebted to Wood and Dakins by 
 bond. The two judgment creditors joined with the two bond creditors and others 
 who were simple-contract creditors in filing a bill, by which they prayed that, in 
 default of personal assets, they might redeem the mortgage, and Lord Jeffries 
 decreed that the plaintiffs, the judgment and bond creditors, might redeem ; and 
 as to the plaintiffs, the simple-contract creditors, his lordship said, " he would 
 advise with the lords and the judges thereon, and after he had so advised would 
 give such directions touching the said debts, whether they should be let into the 
 redemption of the premises, as should be agreeable to equity." 1686, B. fol. 181, 
 
 (c) P. 115. {d) 2 Vern. 480. (e) 2 Atk. 290.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 551 
 
 law :(/) is it not, then, an inconsistency to say, that if the property has been 
 reduced into *possession, a court of equity shall administer it as r;)jf'op-i 
 legal assets, but if it be still outstanding, it shall be administered L J 
 as equitable assets ? Upon what principle can the court vary the rights 
 of parties from an accidental circumstance arising out of the conduct of 
 the executor ? 
 
 In Morgan v. Sherrard(^) a person had mortgaged a term of years, 
 and afterwards acknowledged a statute to Lord Sherrard, and then 
 confessed a judgment to Morgan. The latter filed his bill against the 
 executor to have the equity of redemption made legal assets (a judgment 
 at law taking precedence of a statute,) and so Lord Guildford decreed it. 
 
 Wilson V. rielding(7i) not only confirms this decision, but sets the 
 principle in a clear light. An executor had exhausted the personal 
 assets by part payment of a debt secured by a mortgage and the testator's 
 bond, and the simple-contract creditors filed a bill against the heir to 
 oblige him to refund what had been discharged of the mortgage debt 
 out of the personal estate. The heir was decreed to make good the 
 money, and the dispute was, whether the fund, which was called equita- 
 ble assets because it could only be recovered in a court of equity, should 
 be distributed among the creditors pari passu, or, one of the creditors 
 having obtained a judgment against the executor, should be administered 
 according to the legal priority. Lord Macclesfield said, '< The doctrine 
 that seems to be laid down by the counsel for the simple-contract credi- 
 tors, that there is this standing difi"erence between assets in law and 
 assets in equity, that, though the former shall go according to the course 
 of administration prescribed by law, yet the latter shall, without any 
 regard to this, go among the creditors equally however difi'erent the 
 nature of their debts, is a doctrine witliout any reason or foundation, 
 and looidd establish a ride in equity directly contrary to the hnown 
 rides of law as to the order in tchich debts are to be jmid. Indeed, as 
 to the case put of land devised by a testator to be sold for the payment 
 of his debts, it is so, and this court does always decree the profits arising 
 from the sale equally among all the creditors ; but then *this r.tP07-i 
 land may be considered as a gift of the testator among all his L J 
 creditors, and as the testator, the donor, has not thought ft to make any 
 distinction between his creditors, so this court, which is in nature of a 
 trustee for the testator, icill make none either. But, generally speaking, 
 there is no difference between assets in law and assets in equity, but 
 both must be distributed by the executor in a course of administration." 
 
 The next case is that of the creditors of Sir Charles Cox,(i) in which 
 the property in question was the equity of redemption of a term. Sir 
 J. Jekyll was of opinion it should be equitable assets, "it being," 
 he said, " precarious and doubtful whether the mortgage would prove 
 worth redeeming, and all debts being in a conscientious regard equal, 
 and equality the highest equity;" but at the same time it was resolved 
 
 (/) Hawkins v. Lawse, 1 Leon. 155, per Periam, J.: Anon, case, 1 Roll. Rep. 
 56 ; Harwood v. Wrayman, cited lb. ; S. C. reported Mo. 858. 
 (^) 1 Vern. 293. 
 (k) 10 Mod. 426 ; S. C. 2 Vern. 763. (0 3 P. "W. 341.
 
 552 LEW IX ox THE LAW OF TRUSTS, ETC. 
 
 by the court, tliat where a bond was due to A., but taken in tbe name 
 of B., and A. died, that should be paid in a course of administration, 
 for in such a case there could hardly be any dispute touching the quan- 
 tum of the debt, seeing the principal, interest, and also the costs, must 
 be paid to the obligee in the bond ; whereas, in the other case, the costs 
 must be paid by the party coming to redeem : for the same reason, if a 
 term of years were taken in the name of B. in trust for A., this on the 
 death of A. would be legal assets, for here the right to the thing was 
 plain; and if the trustee contested it, he m\x?,t prima facie do it on the 
 peril of paying costs. 
 
 Hartwell v. Chitters,(7i;) before Lord Hardwicke, was also the case of 
 the equity of redemption of a term, and (the point apparently not un- 
 dergoing much discussion,) was determined in conformity with Sir J. 
 Jekyll's decision, and subsequently, in a case before the Queen's Bench, 
 we find Mr. Justice Baj^ey referring to both Hartwell v. Chitters and 
 the case of Sir Charles Cox's creditors with apparent approval.^ 
 
 Mr. Cox, in his note to Peere Williams, disapproves of the doctrine held 
 by Sir Joseph Jekyll, that an equity of redemption should be accounted 
 equitable assets ; and observes, that, apon looking into the master's re- 
 port made in pursuance of *the decree in Cox's case, it appeared 
 L J the two only creditors were in equal degree, and the master there- 
 fore declined to distinguish which were legal and which were equitable 
 assets, so that the point in question was not in fact determined ; and he 
 adds, that Hartwell v. Chitters rested entirely on the authority of Sir 
 Charles Cox's case. At all events it must be remarked, that Sir Joseph 
 Jekyll expressly approved the doctrine, that 2i plain trust should be legal 
 assets, though he followed his bent of taking subtle and refined distinc- 
 tions, by holding that a doubtful and j^recarioits equity should be admin- 
 istered as equitable assets. A precarious trust ought upon principle to 
 be governed by the same rules as a plain trust; and therefore his honor's 
 distinction could scarcely be relied upon;(m) and it was said long since 
 by Mitford, afterwards Lord Redesdale, arguendo, that Cox's case, and 
 Hartwell v. Chitters, had been considered as overruled. (n) 
 
 In a late case before Vice-Chancellor Kindersley, the distinction be- 
 tween legal and equitable assets is thus laid down : Legal assets are such 
 as are available to the creditor in a court of law, equitable assets such as 
 the creditor can only reach through a court of equity. Whether the 
 assets are such that the executor can recover them in a court of law or 
 in a court of equity only, is immaterial. The true test is, whether he 
 recovers them <' virtute officii.'^ If the assets come to his hands as exe- 
 cutor, a court of law would treat them as assets, and they are to be ad- 
 ministered as legal assets. fo) The eases of Cox's Creditors and Hartwell 
 V. Chitters must now be treated as overruled. 
 
 A trust in fee stands in a very difl"erent light from the trust of a chat- 
 
 {k) Amb. 308. [1) Clay v. Willis, 1 Barn. & Cres. 3T2. 
 
 {m) See Sharpe v. Eaii of Scarborough. 4 Ves. 541 : but see Clay v. Willis, 1 B. 
 & C. 372 ; Barker v. May, 9 B. & C. 493. ' 
 
 (n) Sharpe v. Earl of Scarborough, 4 Ves. 541. 
 
 (o) Cook V. Gregson, 3 Drew. 547 ; and see Lovegrove \. Cooper, 2 Sm. & Gif. 
 271 : French r. French, 3 Jur. X. S. 428.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE. 553 
 
 tel in the hands of the executor. As regards the inheritance, until a 
 late actQ:») it was only in respect of creditors by specialty in which the 
 heirs were bound, that the question of legal or equitable assets could in 
 fact have arisen, *for specialties in which the heirs were not r-^poQ-. 
 bound, and simple-contract debts, were not payable out of real L *^J 
 estate, and statutes and judgments were liais, to a partial extent, upon 
 the equitable fee, and were payable not as debts, but as incumbrances. 
 In respect, then, of specialties in which the heirs were bound, a plain 
 and simple trust was made assets in a court of law in the hands of the 
 lieir, by the Statute of Fravids, and therefoi'e was legal assets in equity ;(j) 
 but complicated trusts, and equities of redemption, were not touched by 
 the statute; and it would seem, upon principle, that as equity subjected 
 the trust to specialty creditors by analogy only to law, the court ouo-ht, 
 by observing the analogy throughout, to have adopted the legal course 
 of administration. 
 
 Lord Nottingham, than whom no chancellor had a more just concep- 
 tion of the true nature of trusts, determined to this effect in the case of 
 Grey v. Colvile.(r) The bond-creditors had, since the ancestor's de- 
 cease, entered up judgments against the heir; and Lord Nottingham, 
 following the analogy of law, decided that the creditors should be paid 
 according to the priority of their judgments out of a trust in fee, thus 
 treating the trust estate as legal assets in the hands of the JieirJs) 
 
 Similarly, in the case of a devise of a trust in fee, the analogy pre- 
 sented by the case of the devise of a legal fee ought, it is conceived, to 
 be pursued. It must be borne in mind, that until the 3 & 4 W. & M. 
 c. 14, a devise of the real estate absolutely deprived the specialty cre- 
 ditors of all remedy against either heir or devisee, and that by this sta- 
 tute a remedy was first given against the heir and devisee jointly, in 
 respect of the property so devised. The statute, however, expressly ex- 
 cepted from its operation those cases of devises for payment of debts, &c., 
 in which, according to the doctrine of the courts of equity, real 
 estate devised was administered as equitable assets, and it is conceived 
 that the true test whether a trust in fee devised should be *ad- ^ . pQ„-, 
 ministered as legal or equitable assets, was whether, if the estate L J 
 devised had been a legal estate it would have constituted legal or equi- 
 table assets. 
 
 The decision in Plunket v. Penson, though the observations of Lord 
 Hardwicke are somewhat sweeping, is not opposed to this view. In that 
 case a testator, seised of the equity of redemption of a trnst estate in 
 fee, devised it to his son, who was also his heir, subject to the testator's 
 debts and some annuities and legacies, and died indebted by bond and 
 simple contract. The point at issue was, whether both species of cre- 
 ditors should be i[)SLid pari jiassu, or the legal priority should be observed. 
 
 (p) 3 & 4 Will. 4, c. 104, which will be noticed presently. 
 
 (q) Plunket V. Penson, 2 Atk. 293, per Lord Hardwicke; Kino- v. Ballett 2 
 Tern. 243. ' 
 
 (r) 2 Ch. Re. 143. 
 
 (s) See Morrice v. Bank of England, 3 Sw. 585 ; Dollond v. Johnson, 2 Sm & 
 Gif. 301.
 
 554 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 The case of Massam v. Harding was cited ly counsel ; and it was said 
 that Lord Chief Baron Comyns had there taken the distinction, that, if 
 it was a mortgage for years, then the equity of redemption would be legal 
 assets, because the whole interest was not gone from the mortgagor, the 
 reversion in fee being left in him ; otherwise where it was a mortgage in 
 iQQ-Jt) and Lord Hardwicke said, he thought the distinction was right; 
 and in the principal case his lordship said, "I agree, that if a mere trust 
 estate descends upon an heir-at-law, it will be considered as legal, and 
 not as equitable assets ; and this is founded upon the third clause of the 
 statute,(i/) which gives a specialty creditor his remedy at law by an action 
 of debt against the heir of the obligor j but it has not made a mortgage 
 in fee of a trust estate subject to the same thing; for if the specialty 
 creditor should bring an action against the heir of the mortgagor, he 
 might plead riens per descent. Therefore, if the plaintiff be under the 
 necessity of coming here, this court will act according to its known rule 
 of doing equal justice to all creditors without any distinction as to pri- 
 ority." But whatever force may be attributed to these observations, it 
 certainly was not decided by this case, that an equity of redemption in 
 fee should be administered as equitable assets. Had the ancestor been 
 seised of the legal fee, Lord Hardwicke held; that, as the legal descent 
 r*rQl 1 "^o^^*! ^ot *have been broken by the equitable charge, the bond 
 L -I creditor might at laio have recovered his debt against the heir ; 
 and thus, having a claim deliors the will, would have been preferred to 
 the simple-contract creditors, who had only a title under the will. But 
 the ancestor was seised, not of the legal fee, but of an equity of redemji- 
 tion; and against the heir of such an interest the bond creditor had no 
 action at law, but only a remedy in chancery. Now the equitable right 
 was to be made strictly analogous to the legal right; and as at law the 
 bond creditor could only have sued the lieir, and not the devisee for pay- 
 ment of dehts, the question for consideration was, whether the equitable 
 interest had descended or been devised. The testator, by charging the 
 land with his debts had certainly not broken the descent as to the sur- 
 plus interest that might come to the heir; but, as the debts exceeded the 
 value of the estate, he had disposed of the icliole beneficial interest, and 
 the bond creditor could have no remedy against the heir, for there was 
 riens per descent : he could only come into equity with the other cre- 
 ditors under the equitable charge; and as an estate devised for payment 
 of debts must be administered as equitable assets, the bond creditor had 
 no claim to priority. The decision viewed in this light is not at variance 
 with Lord Nottingham's decree in Grey v. Colvile. 
 
 In Sharpe v. The Earl of Scarborough(i') a testator died seised of an 
 equity of redemption in fee, and the dispute was between the cre- 
 ditors who had obtained judgments in the lifetime of the testator, 
 and the simple-contract creditors, who claimed under a charge in the 
 will. Lord Loughborough held, that, as the judgment creditors might 
 
 {t) This does not appear in the short note of the case in Bunb. 339. 
 (m) Viz. of Fraudulent Devises, 3 W. & M. c. 14. But quaere, if the 10th section 
 of the Statute of Frauds, 29 Car. 2, c. 3, was not meant. 
 {v) 4 Yes. 538.
 
 PROPERTIES OF CESTUI'S QUE TRUST ESTATE, 555 
 
 have redeemed according to their priorities, they had liens upon the 
 estate, and were therefore entitled to preference. This was the single 
 point determined, though the case has often been cited in support of the 
 doctrine just advocated that an equity of redemption in fee shall be 
 administered as legal assets. 
 
 Before concluding the subject under discussion, we must advert to the 
 late statute for the more effectual payment of debts. (if) 
 
 *The act is entitled " Kn act to render freehold and copyhold i-scpqqt 
 estates assets for the payment of simple contract debts ;" and it L "'J 
 is thereby declared that " when any person shall die seised of or entitled 
 to any estate or interest in lands, tenements, or hereditaments, corporeal 
 or incorporeal, or other real estate, whether freehold, customaryhold, or 
 copyhold, which he shall not by his last will have charged with, or de- 
 vised subject to the payment of his debts, the same shall be assets to he 
 (ulministered in courts of equity for the payment of the just debts of such 
 persons, as well debts due on simple contract as on specialty ; and that the 
 heir or heirs at law, customary heir or heirs, devisee or devisees of such 
 debtor, shall be liable to all the same suits in equity at the suit of any of 
 the creditors of such debtor, whether creditors by simple contract or by 
 specialty, as the heir or heirs at law, devisee or devisees of any person 
 or persons, who died seised of freehold estates, was or were before the 
 passing of that act liable to in respect of such freehold estates at the suit 
 of creditors by specialty in which the heirs were bound : provided always, 
 that in the administration of assets xinder and hy virtue of this act all 
 creditors by specialty in which the heirs are bound shall be paid the full 
 amount of the debts due to them before any of the creditors by simple 
 contract, or by specialty in which the heirs are not bound, shall be paid 
 any part of their demands." 
 
 Upon the construction of this statute the following observations 
 occur : — 
 
 1. It has been decided that the words " assets to be administered in 
 equity" mean only that the creditor shall have his remedy in chancery, 
 and not at law, and do not imply that the estate shall be taken as equi- 
 table assets. The estate therefore is to be distributed as legal assets. (x) 
 
 2. The express terms of the act giving priority to creditors by spe- 
 cialty in which the heirs are bound, over creditors by specialty in which 
 the heirs are not bound, have, as a matter of course, had full effect given 
 to ihem.(y\ 
 
 (to) 3 & 4 W. 4, c. 104. 
 
 {x) Foster v. Handlej, 1 Sim. N. S. 200; see the judgment more fully reported, 
 15 Jur. 73. 
 
 (?/) Richardson v. Jenkins, 1 Drewry, 477.
 
 556 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 [*G93] *CH AFTER XXIV. 
 
 RELIEF OF THE CESTUI QUE TRUST AGAINST THE FAILURE OF THE 
 
 TRUSTEE. 
 
 We have now pointed out in what the estate of the cestui que trust pri- 
 marily consists. We have also examined what are the incidents and pro- 
 perties of it by analogy to estates at law. It follows next that we speak 
 of certain coUateral or suhsidiarij rights by which the cestui que trust is 
 supported in the enjoyment of his equitable interest against the various 
 accidents to which an estate, not direct, but transmitted through the 
 instrumentality of another, must necessarily be exposed. In the present 
 chapter we shall consider the force of the maxim, " A trust shall not 
 fail for want of a trustee." 
 
 It is a general rule that, wherever the intention of the settlor can be 
 clearly collected, and there is no want of consideration, the court will 
 follow the estate into the hands of the legal owner, not being a purcha- 
 ser for value without notice, and compel him to give effect to the trust 
 by the execution of the proper assurances. 
 
 Thus, if a devisor or settlor appoint a trustee, who either dies in the 
 testator's lifetime, (i;) or disclaims, (?c) or is incapable of taking the 
 estate, (j-) or if the trustee otherwise fjiil,^^) the trust is not defeated, but 
 fastens on the conscience of the person upon whom the legal estate has 
 descended. '' I take it," said Lord Chief Justice Wilmot, «' to be a first 
 r^ron ^°^ fundamental ^principle in equity, that the trust folloics the 
 L J legal estate ivheresoever it goes, exce^^t it come into the hands of 
 a purchaser for valuable consicleration without notice. I never heard 
 any distinction made, nor has any case been cited to prove, that a trust, 
 fit and proper to be executed against a trustee, should be suffered to fall 
 to the ground, and remain unexecuted against an heir at law, where 
 there was no trustee. The lapse of the legal estate never has the least 
 influence upon the trusts to which it is subject. Trust estates do not 
 depend upon the legal estate for an existence. A court of equity con- 
 siders devises of trusts as distinct substantive devises, standing on their 
 own basis, independent of the legal estate or of one another : and the 
 legal estate is nothing but the shadow, which always follows the trust 
 estate in the eye of a court of equity.''^,;) 
 
 So, if a testator direct a sale of his lands for certain purposes, but omit 
 to name a person to sell, the trust attaches upon the conscience of the 
 heir, and he is as strictly bound to carry the intention into effect, as if 
 he were a trustee regularly appointed. (a) 
 
 {v) Moggridge v. Thackwell, 3 B. C. C. 528 ; S. C. 1 Ves. jun. 475, per Lord 
 Thurlow ; Attorney-General v. Downing, Amb. 552, admitted. 
 
 {w) Backhouse v. Backhouse, V. C. of Eng. 20 Dec. 1844. 
 
 {x) Sonley v. Clockmakers' Company, 1 B. C. C. 81 ; Anon, case, 2 Vent. 349 ; 
 White V. Baylor, 10 Ir. Eq. Re. 53, 54. 
 
 (y) Attornej'-General v. Stephens, 3 M. & K. 347. 
 
 (2) Attorney-General v. Lady Downing, Wilm. 21, 22. 
 
 (a) First clearly settled in Pitt v. Pelham, Freem. 134.
 
 RELIEF OF THE CESTUI QUE TRUST. 557 
 
 So, if lauds be devisecl,(6) or a sum of money be bequeathed,(6') to a 
 feme covert for her sole and separate use, but without the interposition 
 of a trustee, the property vests at law in the husband, but in eq^uity he 
 holds upon trust for the separate use of the wife. 
 
 We have seen, in a former chapter, that powers are distributable into 
 arhitvary and Imperative^ and that powers vmjjerative do in reality par- 
 take of the nature of trusts. Upon this ground the court protects a ces- 
 tui que trust from the failure of the donee of a power imperative, as it 
 would do from the failure of any other trustee. " If," said Lord Eldon, 
 "the *power be one which it is the duty of the party to exe- r^-por-i 
 cute — made his duty by the requisition of the will — put upon L ' J 
 him as such by the testator, who has given him an interest extensive 
 enough to enable him to discharge it, he is a trustee for the exercise of 
 the power, and not as having a discretion whether he will exercise it or 
 not ; and the court adopts the principle as to trusts, and will not permit 
 his negligence, accident, or other circumstance to disappoint the interests 
 of those for whose benefit he is called upon to execute \t."((l\ " As to 
 the objection," said Lord Chief Justice Wilmot, " that these powers are 
 personal to the trustees, and by their deaths become unexecutable, they 
 are not powers, but trusts, and there is a very essential difference between 
 them. Poivers are never imperative — they leave the act to be done at 
 the will of the party to whom they are given. Trusts are always impe- 
 rative, and are obligatory upon the conscience of the party intrusted. 
 This court supplies the defective execution of powers, but never the non- 
 execution of them, for they are meant to be optional. But the person 
 who creates a trust means it should at all events be executed. The indi- 
 viduals named as trustees are only the nominal instruments to execute 
 that intention, and if they fail, either by death, or by being under dis- 
 ability, or by refusing to act, the constitution has provided a trustee. 
 Where no trustees are appointed at all, this court assumes the office in 
 the first instance, and in the event which hath happened it is the same 
 as if no trustees had been appointed at all. There is some personality 
 in every choice of trustees; but this personality is res unius cetatis, and, 
 if the trust cannot be executed through the medium which was in the 
 primary view of the testator, it must be executed through the medium 
 which the constitution has substituted in its place. A college was to be 
 founded under the eye of five trustees : that cannot be : the death of the 
 trustees frustrates that medium. What then ? Must the end be lost 
 because the means are by the act of God become impossible ? Suppose 
 the question had been asked the testator, < If the trustees die or refuse 
 to act, do you mean no college at all, and the heirs to take the estate V 
 No : I *trust them to execute my intention : I do not put it into r^^pop-, 
 their power whether my intention shall ever take place at all. "(e) L ' J 
 
 (b) Bennet v. Davis, 2 P. W. 316 ; Major v. Lansley, 2 R. & M. 355. 
 
 (c) RoUfe V. Budder, Bunb. 187 ; Tappenden v. Walsh, 1 Phillim. 352 ; Prit- 
 chard v. Ames, 1 Turn. & Russ. 222 ; Parker v. Brooke, 9 Yes. 583 ; and see 
 Roberts v. Spicer, 5 Mad. 491 ; Wills v. Sayers, 4 Mad. 409 ; Rich v. Cockell, 9 
 Ves. 375. At first there was some doubt: Harvey v. Harvey, 1 P. W. 125 ; Burton 
 V. Pierpoint, 2 P. W. 78. {d) Brown v. Hlggs, 8 Ves. 574. 
 
 (e) Attorney-General v. Lady Downing, Wilm. 23. 
 
 April, 1858.— 3G
 
 558 LEWIN ON THE LAW OF TKUSTS, ETC. 
 
 If trustees, then, have such a discretion committed to them, and they 
 either die ia the testator's lifetime, (/) or decline the office, (5') or disagree 
 among themselves as to the mode of execution, (A) or do not declare them- 
 selves before their death,(/) or if from any other circumstance,(/L-) the 
 exercise of the power by the party intrusted with it become impossible, 
 the court will substitute itself in the place of the trustees, and will exer- 
 cise the power by the most reasonable rule. And the court will take up 
 the trust, whatever difficulties or impracticabilities may stand in the 
 way ',(1) for as Lord Kenyon laid down the rule strongly, if the trust can 
 hy any iwssihiliti/ be exercised by the court, the non-execution by the 
 trustee shall not prejudice the cestuis que trust. (mj 
 
 In what mode the court will execute the power will vary according to 
 the circumstances of the case. 
 
 Where the discretion of the trustee is to be governed hy some ride, or 
 to be measured by a state of/acts, which the court can inquire into as 
 effectually as a private person, then the court can "look with the eyes 
 of trustees," and will substitute its own judgment for that of the indi- 
 vidual. 
 
 Thus, in Hewett v. IIewett,(?z) a power was given to the successive 
 tenants for life " to cut such trees and wood growing upon the premises 
 as A., B., C, and D., or the survivors or survivor of them, should assign, 
 allow, or direct by any writing under their hand." All the trustees died, 
 and the difficulty was, whether the power to cut timber had not thus 
 r*PQ71 ^6^^™^ *extinguished; but Lord Northington said, " The trustees 
 L J were interposed as supervisors only : it is absurd to suppose the 
 testator meant his trustees should have an arbitrary volition, whether the 
 several tenants for life should have any benefit of the fall of timber. If 
 a bill had been brought against the trustees to assign, allow, or direct 
 timber, mature, and fit, to be cut, would it have been an answer, We do 
 not think fit to allow it — stat p)T0 ratione voluntas ? I think the court 
 would not have been satisfied with such an answer. It is the duty of this 
 (iourt, and of all courts, to give devises, as far as their respective juris- 
 dictions admit, their full and specific execution. The office of these 
 trustees is not confined to any personal qucdification, hut such as is gene- 
 ral and may he suhstituted, viz., to see what is fit and proper to be cut." 
 His lordship therefore directed a reference, what timber and wood was 
 mature and fit, and that such should be felled with the approbation of 
 the master. 
 
 In another case a power was given to trustees to apply, with the appro- 
 
 (/) Attorney-General v. Lady Downing, Wilm. 1 ; S. C. Amb. 550 ; Attorney- 
 General V. Hickman, 2 Eq. Ca. Ab. 193. 
 
 [g) Doyley v. Attorney-General, 2 Eq. Ca. Ab. 194 ; Jude v. Worthington, 3 De 
 Gex & Sm. 389. 
 
 {h) Moseley v. Moseley, Rep. t. Finch, 53, and see Wainwright v. Waterman, 1 
 Ves. jun. 311. 
 
 {i) Hewett v. Hewett, 2 Ed. 332; Flanders v. Clark, 1 Ves. 10, per Lord Hard- 
 wicke ; Harding v. Glyn, 1 Atk. 469 ; Ray v. Adams, 3 M. & K. 243, per Lord 
 Langdale ; Grieveson v. Kirsopp, 2 Keen, 653; Croft v. Adam, 12 Sim. 639. 
 
 {k) Attorney-General v. Stephens, 3 M. & K. 347. 
 
 {I) Pierson v. Garnet, 2 B. C. C. 46, per Lord Kenyon. 
 
 (m) Brown v. Higgs, 5 Ves. 505. (w) 2 Ed. 332.
 
 RELIEF OF THE CESTUI QUE TRUST. 559 
 
 bation of the father and mother, the dividends of certain stock to the 
 maintenance of the children. There was a failure of trustees. Lord 
 Eldon said, '< the intention was that, if it should he j^roper the interest 
 should be applied in maintenance, the trustees should have the power. 
 In this instance there were no trustees, at least none who have been act- 
 ing, and that circumstance imposes upon the court the necessity of 
 examining strictly what the trustees ought to have done. I shall, there- 
 fore direct a reference to the master, whether it would have been reason- 
 able and proper for any trustee or trustees, acting in the execution of the 
 will, to apply the interest towards the maintenance of the children. (o) 
 
 But the principal authority upon this subject is the case of Gower v. 
 Mainwaring.(/j) John Mainwaring executed a trust deed, by which the 
 trustees were to give the residue of the real and personal estate among 
 the settlor's relations where they should see most necessity, and as they 
 shoidd think most equitable and just. Two of the trustees died, and, 
 the third refusing to act, it was discussed, how far the discretion r^i^pnoT 
 *of the trustees could be vicariously exercised by the court. L -i 
 Lord Hardwicke said, " what differs it from the cases mentioned is this, 
 that here is a i-ule laid down for the trust. Wherever there is a trust or 
 power — for this is a mixture of both — I do not know the court can put 
 itself in the place of those trustees, and exercise that discretion. Where 
 trustees have power to distribute generally according to their discretion 
 withotit any object pointed out or rule laid dow7i, the court interposes 
 not ; unless in case of a charity, which is diiferent, the court exercising 
 a discretion as having the general government and regulation of charity. 
 But here is a rule laid down : the trustees are to judge on the necessity 
 and occasions of the family : the court can{q\ judge of such necessity : 
 that is a judgment to be made of facts existing, so that the court can make 
 the judgment as well as the trustees , and lohen informed by evidence of 
 the necessity, can judge what is equitable and just on this necessity." 
 And his lordship decreed a division among the relations (such relations 
 to be restricted to those within the Statute of Distributions) according 
 to their necessities and circumstances, which the master should inquire 
 into, and consider how it might be most equitably and justly divided. (?•)(!) 
 
 (0) Maberley v. Turton, 14 Ves. 499. (j)) 2 Vcs. 87. 
 
 (q) In Mr. Belt's edition of Vescy there is the strange misprint of " cannot judge.'' 
 (r) 2 Ves. 110; and see Liley v. Hey, 1 Hare, 580. 
 
 (1) The execution of the power in this case in favor of the settlor's relations 
 within the Statute of Distributions, according to their necessities, leads us to 
 observe upon the construction of a direct bequest to a person's "poor or necessitous 
 relations." It is commonly thought that the epithet " poor," " necessitous," or the 
 like, is merely nugatory ; but on consideration there will appear to be a prepon- 
 derating weight of authority in favour of the contrary doctrine. It is perfectly 
 settled, notwithstanding a case in which Lord Hardwicke is said to have held 
 otherwise, (Attorney-General v. Buckland, cited 1 Ves. 231, Amb. 71,) that "rela- 
 tions," though accompanied with the words " poor," " necessitous," or the like, 
 will be restricted to those within the Statute of Distributions. The only question, 
 therefore, is whether as among those within the statute expressions of tiiis kind will 
 not be allowed their effect. In a case reported by Peere Williams (Anon case, 1 
 P. W. 327,) the bequest was to "jooor relations," and the Countess of Winchelsea, 
 one of the next of kin, was allowed a share, in regard the word "poor" was fre-
 
 560 LEWIN ON THE LAW OF TKUSTS, ETC. 
 
 *Where the settlor lias given no rule or measiireh^ which the 
 [*699] ,-ijggj.gfjoQ jg to be governed, the court cannot in that case act 
 upon mere caprice, but will execute the power by the most reasonable 
 and intelligible rule that the circumstances of the case will admit. 
 
 Upon ordinary occasions the court proceeds upon the *maxim, 
 \^'^^^ t}iat equality is equity. Thus in Doyley v. Attorney-General(s) 
 a testator gave his real and personal estate to trustees upon trust to dis- 
 pose thereof to such of his relations of his mother's side who were most 
 deserving, and in such manner as they should think fit, and for such 
 charitable uses aud purposes as they should also think most proper and 
 convenient; and the power having devolved upon the court, Sir J. 
 Jekyll directed, that one moiety of the personal estate should go to the 
 relations of the testator on the mother's side, and the other moiety to 
 
 (s) 2 Eq. Ca. Ab. 195. See Down v. TTorrall. 1 M. & K. 561 ; but the two sets 
 of objects were connected not by " and," but by " or." It will be observed that 
 Doyley v. Attorney-General, was not cited. 
 
 quently used as a term of endearment r.nd compassion, rather than to signify 
 indigence. It is evident that this case can have no application where the word 
 •'poor" is not of doubtful meaning, but is clearly to be taken in the sense of 
 poverty and necessity. In Widmore v. Woodroffe, Amb. 636, the testator had 
 given a third of the residue to be distributed '-amongst the most necessitous of 
 his relations." There was only one relation tvithin the Statute of Distributions, and 
 it was held that such relation was exclusively entitled. The only point decided, 
 therefore, was, that the addition of the term " necessitous" would not extend the 
 construction of the word ••' relations" to those out of the statute, and to this single 
 question were the observations of Lord Camden addressed. " Several cases," he 
 said, " have been cited, all proceeding upon the same ground, making the Statute 
 of Distributions the rule to prevent an inquiry which would be infinite, aud would 
 extend to i-elations ad infinitum : the court cannot stop at any other line. Thus it 
 would clearly stand on the word ' relations,' and the word ' poor' being added 
 makes no difference. There is no distinguishing between the degrees of poverty, 
 and therefore the court has, as was unanswerably argued,* construed the will as 
 if the word 'poor' were not in it." Thus there appears to be no authority for 
 holding the words to be nugatory as among the relations tvithin the statute, while 
 on the contrary side of the question there are, as we shall see, two direct decisions. 
 In Brunsden v. Woolredge, Amb. 507, a testator gave 5001. to be distributed 
 amongst his mothers poor relations, and Sir T. Sewell directed the fund to be 
 distributed amongst the poor relations of the mother within the statute zvho ivere 
 objects of charity. In Mahon v. Savage, 1 Sch. & Lef. Ill, we have the authority 
 of Lord Redesdale equally in point. A testator gave lOOOZ. to be distributed 
 amongst his poor relations, or such other objects of charitj' as should be mentioned 
 in his private instructions to his executors. No instructions were left, and Lord 
 Redesdale held, that Lynam, one of the next of kin within the statute, was not entitled 
 to a share, unless he was a poor person at the time of the payment of the legacy. 
 We may also add the dictum of Lord Thurlow in Green v. Howard, 1 B. C. 0. 33 : 
 — "The word 'relations,'" he said, "must be confined to the statute, but not 
 always in the proportions of the statute: where the testator has said, to relations 
 according to their greater need, the court has shown particular fiivour to one." The 
 argument that the court cannot distinguish between the degrees of poverty as 
 amongst the relations within the statute is also answered by the case of Gower v. 
 Mainwaring, cited in the text, in which a direction for such a distinction was 
 actually made. 
 
 * By referring to the arguments of the counsel, it will clearly appear in what 
 sense his lordship meant to employ the words " there is no distinguishing between 
 the degrees of poverty," viz. as among the relations ad infinitum, not as among the 
 relations within the statute.
 
 RELIEF OF THE CESTUI QUE TRUST. 561 
 
 charitable uses, the known rule that equality is equity being, he said, 
 the best rule to go by. He said he had no rule of judging of the merits 
 of the testator's relations, and could not enter into spirits, and therefore 
 could not prefer the one to the other, but all should come in without dis- 
 tinction. 
 
 With respect to the subject under consideration, the cases in which 
 the donor's intention is expressed in the words of a gift, may admit of 
 distinction from those in which it is expressed in the words of aj^oicer. 
 
 If a fund be limited " upon trust for the children of A. as B. shall 
 appoint," the construction appears to be, that the children of A. take a 
 vested interest by the ffi/f, subject to be divested by the exercise of the 
 power. Therefore, on failure of the power, the children, who were the 
 objects of the power, become absolutely entitled, just as if the discretion 
 had never been annexed. (^) But if the power given to B. be testamen- 
 tary only, that circumstance affords a ground for construing the gift to 
 the children as a gift to those only who might be living at B.'s death. (w) 
 
 Where, however, an estate is vested in trustees '' upon trust to dis- 
 pose thereof among the children of A.," in this case the children take 
 nothing by way of gi/f, but the transmission of their interest must be 
 through the medium of the j)oice7\ *If the trust be to distribute i-^ya-i-i 
 equally among the objects, the bequest, though in the form of a L J 
 power, must be tantamount to a simple giftjfy) and if the trustees be at 
 liberty to distribute imcqually , and make no distribution, the court, 
 though this was long doubted, itself executes the power, and divides the 
 fund equally amongst the objects of it.(ic) 
 
 But further, a discretion may be given to the trustee, not only in 
 respect of the proportions to be appointed, but also in respects of the 
 objects to whom the appointment is to be made ; as where a fund is 
 bequeathed to trustees with a discretionary power of distribution to suclc 
 of a class as the trustees shall think fit. 
 
 In cases of this description the question first to be resolved is, Did the 
 settlor intend to communicate a mere power or to create a trust? 
 
 In Harding v. Glyn(x) a testator gave to Elizabeth his wife a house 
 and certain goods and chattels, but *' desired her at or before her death, 
 to give the same unto and amongst such of the testator's relations as she 
 should think most deserving and approve of." The wife died without 
 having executed the appointment, and the court considered the discre- 
 tion as imperative, and divided the estate equally amongst the testator's 
 relations living at the time of the wife's death. 
 
 In The Duke of Marlborough v. Lord Godolphin(_y) a testator by his 
 
 {t) Davy V. Hooper, 2 Vern. 665 ; Fenwick v. Greenwell, 10 Beav. 412 ; Madoc 
 v. Jackson, 2 B. C. C. 588; Hockley v. Mawbey, 1 Ves. jun. 143, see 149, 150; 
 Jones V. Torin, 6 Sim. 255, &c.; Falkner v. Lord Wynford, 9 Jur. 1006. 
 
 {u) Woodcock V. Renneck, 4 Beav. 196; 1 Phil. 72. 
 
 (v) Phillips V. Garth, 3 B. C. 0. 64 ; Rayner v. Mowbray, lb. 234. 
 
 {w) Hands v. Hands, cited Swift v. Gregson, 1 T. R. 437, note; Pope v. Whit- 
 combe, 3 Mer. 689, corrected from Reg. Lib. 2 Sug. Powers, 650, 6th ed. ; Walsh 
 V. Wallinger, 2 R. & M. 78 ; S. C. Taml. 425 ; Grieveson v. Kirsopp, 2 Keen, 653 ; 
 Brown v. Pocock, 6 Sim. 257; Finch v. HoUingsworth, 21 Beav. 112. 
 
 {x) 1 Atk. 469, stated from Reg. Lib.; Brown v. Higgs, 5 Ves. 501. 
 
 [y) 2 Ves. 61.
 
 562 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 will gave 30,0007. to his wife, but by a codicil (without date) gave it to 
 her for life only, and after her decease to be divided and distributed to 
 and amongst such of his children, and in such manner and proportions, 
 as she by deed or will should direct or appoint. The wife by will 
 appointed 17,0007. between two of the children who died in her lifetime. 
 The sum appointed having failed by lapse, it was questioned whether it 
 should sink into the testator's estate, or belong to the children as cestuis 
 que trust. Lord *Hardwicke considered, that as the gift in the 
 L '^-'J loiU was an absolute legacy to the wife, the intention of the 
 codicil was not to provide for the children, but to secure their respect 
 and duty to the wife by investing her with a power : that no interest 
 vested in the children independently of any appointment, and therefore 
 the sum that lapsed should fall into the residue. 
 
 These two cases were the subject of much discussion in Brown v. 
 Higgs,(2;) in which a testator gave certain leaseholds to John Brown 
 upon trust, (after payment of certain charges thereon,) " to employ the 
 rents to such of the children of the testator's nephew Samuel Brown as 
 the said John Brown should think most deserving, and that would make 
 the best use of it, oi' to the childreu of the testator's nephew William 
 xlugustus Brown, if any such there were or might be." John Brown 
 died in the testator's lifetime. Lord Alvanley said, " The question is, 
 whether the surplus rents are a gift to all the children, or to such of 
 them only as the testator's nephew John Brown, who died in his life- 
 time, should appoint. If the former can be collected as his intention, 
 the death of the trustee will make no diiference : if that intention cannot 
 be collected, the selection not having taken place, whatever the reason 
 of its failing may be, the bequest must fail with it. Upon the true con- 
 struction of this will, I am of opinion it is equivalent to saying he gives 
 it to the children of Samuel Brown or of William Augustus Brown, with 
 a power to John Brown to select any he thinks fit and to exclude the 
 others." His lordship, therefore, declared the fund to have been well 
 bequeathed in trust for all the children of Samuel Brown and William 
 Augustus Brown. The cause was reheard before his lordship, who, 
 .after grave consideration of the subject, decreed as before. (a) The 
 decree was afterwards affirmed on appeal by Lord EIdon,ri) and again 
 affirmed in the house of lords. (c) 
 
 " The Duke of Marlborough v. Lord Godolphin," said Lord Eldon, 
 r*7nm " ^^ certainly very difficult to reconcile with Harding v. *Glyn 
 L J or Brown v. Higgs ; but the question is not, whether one case 
 is to be reconciled with others, but whether all the cases have gone upon 
 a principle which professes to save whole Harding v. Grlyn, Lord Hard- 
 wicke, in The Duke of Marlborough v. Lord Godolphin does not say, 
 that where there is a power, and it is made the duty of the party to exe- 
 cute it, and he would not execute it, in such a case this court would not 
 act, but he collected from the scope and object of the disposition taken 
 altogether that it was a case, in which the person having a power to dis- 
 pose of the sum of 30,0007. had a mere power, not clothed with any duty 
 
 (2) 4 Ves. 708. (a) 5 Ves. 495. (i) 8 Ves. 561. (c) 18 Yes. 192.
 
 RELIEF OF THE CESTUI QUE TRUST. 563 
 
 requiring her to esecute it, and tlierefore, as to what was not disposed 
 of, the court could not interfere." ((7) The doctrine of Harding v. Glyn, 
 which has since been confirmed by other authorities,(<:) may now be 
 considered as indisputably established. The rule, as laid down by Lord 
 Cottenham, was thus expressed, that " when there appears a general 
 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."(/) 
 
 The question in favour of what objects a power imperative, whether 
 of distribution merely, or of selection, will be executed by the court, 
 remains to be considered ; and it is conceived that, in reference to this 
 question, each kind of power stands generally upon the same footing. 
 The following results may be deduced from the authorities : 
 
 First. Where a testator bequeaths property with a power imperative 
 in favour of a class, whether of children, relations, or others, and it 
 appears to be the intention that the distribution or selection should take 
 place as soon as conveniently may be after the testator's death then the 
 court will execute the power in favour of the class as existing at the 
 date of the testator's death. (</) 
 
 ^Secondly. Where the/yame of the will does not of necessity r*yQ^-i 
 point to an immediate exercise of the power, as where the donee L J 
 of the power takes a life estate expressly, or by implication, the nature 
 of the power given to the donee has to be taken into consideration. 
 
 1. If the power is to be exercised by will only, then, inasmuch as the 
 objects of the power are necessarily those only living at the death of the 
 donee, the court executes the power in favour of those members of the 
 class only who are in esse at the death of the donee.{1i) 
 
 2. Where, however, the power given to the tenant for life is not merely 
 testamentary, the question, whether the class to take is to be ascertained 
 at the death of the testator or of the donee of the power, is involved in 
 considerable difficulty. The decisions which support an execution of 
 the power in favour of the class of objects as existing at the death of 
 the donee,(A and those which support an execution in favour of the 
 class as existing at the death of the original testator, (/.;) are almost evenly 
 balanced : but the apparent absence of any full consideration of the 
 
 {(I) Brown v. Higgs, 8 Ves. 576. 
 
 (e) Birch v. Wade, 3 V. & B. 198; Burrough v. Philcox, 5 M. & Cr. 72; Penny 
 V. Turner, 2 Phill. 493 ; Walsh v. Wallinger, 2 R. & M. 78. 
 
 (/) 5 M. & Cr. 92. 
 
 {(j) Brown v. Higgs, 4 Ves. 708, &c. ; Longman v. Broom, 7 Ves. 124. The 
 result will, of course, be the same where a life estate being given to the donee of 
 the power, the donee dies in the testator's lifetime. See Penny v. Turner, 2 Phil. 
 493; Hutchinson v. Hutchinson, 13 Ir. Eq. Re. 332. 
 
 (/j) Cruwys v. Colman, 9 Vesey, 319; Birch v. Wade, 3 V. & B. 198 ; Walsh v. 
 Wallinger, 2 R. & M. 78 ; Brown v. Pocock, 6 Sim. 257; Burrough v. Philcox, 5 
 M. & Cr. 72; and see the analogous cases of Woodcock v. Renneck, 4 Bear. 190, 
 1 Phil. 72; Finch v. Hollingsworth, 21 Beav. 112. 
 
 {i) Doyley v. Attorney-General, 2 Eq. Ca. Abr. 195 ; Harding v. Glyn, 1 Atk. 
 469 ; Pope v. Whitcombe, 3 Mer. 689, corrected from Reg. Lib. 2 Sugd. Pow. 650, 
 6th edit. 
 
 (/t) Hands v. Hands, cited 1 T. R. 437, note; Grieveson v.Kirsopp, 2 Keen, 653.
 
 56-i LEAVIN ON THE LAW OF TRUSTS, ETC. 
 
 question, and the circumstance that in some of the cases the power, 
 though not expressly limited to an exercise by will, did not in terms 
 authorize an execution by deed or writing, and may perhaps have been 
 viewed by the court as testamentary, detracts from their value as 
 authorities upon this point. 
 
 Upon principle, too, as well as upon authority, the question is a diffi- 
 cult one. It may be said, in support of ascertaining the class at the death 
 of the original testator, that the donee of the power may exercise it in 
 P^.^r-, favour of the class existing at *the time of exercise, to the exclu- 
 L ' J sion of those who have died before, and also, where the power is 
 one of selection, to the exclusion of those who may come into esse subse- 
 quently, but that the court cannot act arbitrarily, and cannot show any 
 favour, but must observe equality towards all. Who, then, are the objects 
 of the power ? As it was not the duty of the donee of the power to 
 exercise it at one time more than another, the only objects of the power 
 must be all those who might by possibility have taken a benefit under 
 it, that is, those living at the death of the testator, and those who come 
 into being during the continuance of the life estate ; otherwise, should 
 all the class predecease the tenant for life (an event not improbable, 
 where children or some limited class of relations are the objects,) there 
 would be a power imperative which is construed as a tnist, and no cestui 
 que trust, a result which, it is conceived, the court would be somewhat 
 unwilling to adopt. On the other hand, it is to be observed that the 
 power may properly be exercised by the donee at any time before death, 
 and there is no obligation to exercise it earlier, and if any members of 
 the class die before the power is exercised, they, according to the ordi- 
 nary rule, cease to be objects of it. The donee of the power, having an 
 undoubted right to postpone the execution of it until the last moment of 
 his life, the only default which the court has to supply, is the nonexer- 
 cise Just be/ore the death, and that default must, therefore, be supplied 
 in favour of those who were objects at the date of the death of the 
 donee. 
 
 3. It is clear that where the donee tenant for life may exercise the 
 power by deed or will, the members of the class in existence at the date 
 of the death of the donee will alone take, if, upon the purview of the 
 original instrument, they alone appear to be the objects of the power.(/) 
 
 It may be useful to inquire more particularly in connection with this 
 subject, in what manner the court will execute a power in favour of 
 << relations." 
 
 The donee of the discretion, if he have a power of selection, may ap- 
 r*7nn P^^^* ^^ relations in any degree, (?h) and it is only in *those 
 L -I cases where he has a mere power of distribution that he must 
 
 (Z) Winn v. Fenwick, 11 Beav. 438 ; and see Tiffin v. Longman, 15 Beav. 275. 
 
 (m) Snpple v. Lowson, Amb. 729 ; Grant v. Lynam, 4 Russ. 292 ; Harding v. 
 Glyn, 1 Atk. 469 ; S. C. stated from Reg. Lib., Brown v. Higgs, 5 Ves. 501 ; Mahou 
 T. Savage, 1 Sch. & Lef. Ill ; Cruwys v. Colman, 9 Ves. 324, per Sir W. Grant : 
 Spring V. Biles, cited Swift v. Gregson, 1 T. R. 435, note (/). In Brunsden v. 
 Woolredge, Amb. 507, Sir T. Sewell seems to have confined the trustees to rela- 
 tions within the statute, but his opinion was otherwise in Supple v. Lowson, ubi 
 supra.
 
 RELIEF OF TUE CESTUI QUE TRUST. 565 
 
 confine liimself to tlie relations within the Statute of Distribution of intes- 
 tates' estates. (?i) But the court, except where the bequest is for the benefit 
 of poor relations by way of founding a charity,(o) or the testator has fur- 
 nished some intelligible rule by which the relations out of the statute may 
 be easily ascertained, (p) must in all cases appoint to the relations within 
 the statute ; for as on the one hand the court cannot act arbitrarily by select- 
 ing particular objects, so on the other it cannot execute the power in favour 
 of relations in general, for this would lead ad infinitum. {c[^ 
 
 The point still open to discussion is, in what shares such relations 
 shall take — whether those who in case of intestacy would have claimed 
 by representation shall under the execution of the power by the court 
 take per stirjjes or per capita. 
 
 Now, the rule that those should be deemed relations who would take 
 a distributive share under the statute was adopted, on the ground, that 
 unless some line were drawn for restricting the meaning of the word, a 
 bequest to relations would be void *for uncertainty. As this r>fc7AY-i 
 was the sole foundation for appealing to the statute at all, it is L J 
 evident the single inquiry for the court is, who would take a distributive 
 share : in %ohat proportions they would take is wholly beside the ques- 
 tion, and in fact beyond the court's jurisdiction ; for, when the class has 
 been ascertained, the testator himself has determined the proportions 
 by devising to the objects in words creating a joint tenancy. (r) No dis- 
 tinction can be taken between real and personal estate ; yet it could 
 scarcely be held, that if lands where devised to the testators " relations," 
 the kindred within the statute would take in unequal proportions. 
 
 The result of the authorities would seem to accord with what is correct 
 upon principle, viz., that in a gift to ^^ relations " {whether the testator 
 has added the words ^'equally to he divided," or not^ the distribution 
 among the relations within the statute miist he made per capita, and not 
 per stirpes, (.s) The question with respect to " next of kin" can no longer 
 
 (n) Isaac v. De Friez, Amb. 595 ; but see the case stated from Reg. Lib., Attor- 
 ney-General V. Price, 17 Ves. 373, note (a) ; Carr v. Bedford, 2 Ch. Re. 146 ; Pope 
 V. Whitcombe, 3 Mer. G89. The last case, and Forbes v. Ball, 3 Mer. 437, were 
 both decided by Sir W. Grant, but appear to be contradictory ; however, in the 
 latter case the question raised was, not whether the donee had exceeded her power, 
 but whether the discretion was apoicer or a trust ; for if a power, and it had not 
 been executed by the will, the fund would have sunk into the residue, and the 
 plaintiif have been entitled as residuary legatee. Note, a power of selection will 
 be implied in the case of " relations," where it would not have been implied in the 
 case of " children." Spring v. Biles, and Mahon v. Savage, supra. In the 
 latter case the words were " amongst the relations," but see Pope v. Whitcombe, 3 
 Mer. 689, where the expression was similar. 
 
 (o) See White v. White, 7 Ves. 423; Attorney-General v. Price, 17 Ves. 371; 
 Isaac V. De Friez, lb. 373, note {a) ; and see Mahon v. Savage, 1 Sch. & Lef. 111. 
 
 {p) Bennett v. Honywood, Amb. 708. 
 
 (5') Thus in Bennett r. Honywood, ubi supra, 456 persons applied as relations 
 within two years. 
 
 (r) See Walter v. Maunde, 19 Ves. 427, 428. 
 
 (s) See Thomas v. Hole, Cas. t. Talb. 251 ; Stamp v. Cooke, 1 Cox, 236 ; Phil- 
 lips V. Gartli, 3 B. C. G. 64 ; Green v. Howard, 1 B. C. C. 33; Rayncr v. Mowbray, 
 
 3 B. G. C. 234, Reg. Lib. B. 1791, foL 183 ; Pope v. Whitcombe, 3 Mer. 689, Reg. 
 Lib. B. 1809, fol. 1535 ; Hinckley v. Maclarens, 1 M. & K. 27 ; Withy v. Mangles, 
 
 4 Beav. 358 ; 10 CI. & Fin. 215. The above cases will be found discussed in Ap- 
 pend. No. IX.
 
 566 LEWIN ON THE LAW OP TRUSTS, ETC, 
 
 arise : for by the decision of Elmsley v. Young, upon appeal from Sir 
 J. Leacli to the late lords commissioners, (;;) tlie words " next of kin" 
 must be construed to mean " nearest of kin," to tbe exclusion of those 
 who would take under the statute by representation. 
 
 We have stated that, as a general principle, the court will execute the 
 power among the objects equally; but it sometimes happens that the 
 subject of the gift is incapable of division, or the settlor has expressly 
 directed the whole to be bestowed on one object to be selected bythe 
 trustee. In such cases the court still acts upon the maxim, that, if hy 
 any possibility the power can be executed, the court will do it. 
 
 In Moseley v. Moseley,(i«) a very early case, an estate was devised to 
 r*7nsn *^"stees upon trust to settle on such of the sons of *N. as the 
 L J trustees should think fit. The trustees having neglected to com- 
 ply with the direction, the sons of N. filed a bill to have the benefit of 
 the trust, and the court decreed the trustees, within a fortnight next after 
 the entry of the order, to nominate such one of the plaintiffs as they 
 should think fit, upon whom to settle the lands of the testator ; and if the 
 trustees should fail to nominate within that time, or there should be any 
 difi'erence between them concerning such nomination, then the court 
 would nominate one of the plaintiff's, it being the testator's intent that 
 his estate should not be divided, but settled upon one person. 
 
 In Richardson v. Chapman (w) Dr. Potter, Archbishop of Canterbury, 
 gave all his options to trustees upon trust, that in disposing thereof 
 " regard should be had according to their discretions to his eldest son, 
 his sons in law, his present and former chaplains, and others his domes- 
 tics, particularly Dr. T., his chaplain, and Dr. H., his librarian ; also to 
 his worthy friends and acquaintances, particularly to Dr. Richardson." 
 The trustee tried first to give the option in question to himself. He 
 then fixed upon a person, with whom he appeared to have made an 
 underhand bargain. When this failed, he, in breach of his duty, pre- 
 sented a Mr. Venner. On a bill filed to set aside the presentation. Lord 
 Northington considered the trust to be of a kind that the court could not 
 execute, and dismissed the bill. Dr. Richardson appealed against this 
 decision to the house of lords, and the other person, who stood prior to 
 him, not appearing, the house reversed the decree, and ordered the pre- 
 sentation to be made to the appellant. <' This case," says Lord uilvanley, , 
 '' shows, that however difficult it may be to select the persons intended, 
 and though it must depend from the nature of the trust upon the opinion 
 of the trustees as to the merit of the persons who are the objects, yet the 
 court will execute even a trust of that nature, if the trustee shall either 
 neglect to execute, or be disabled from executing, or shows by his con- 
 duct any intention not to execute it as the testator intended he should. 
 When one reads the nature of this trust, how difficult it was to make the 
 selection, it is decisive to show *the court must do it, though 
 
 [*709] 
 
 the trust is in its nature so discretionary." ^tc;) 
 
 (0 2 M. & K. 780 ; and see Withy v. Mangles, 4 Beav. 358 ; 10 CI. & Fin. 215. 
 (m) Rep. t. Finch, 53; S. C. cited Clarke v. Turner, Freem. 199. 
 \v) 1 B. P. C. 318 ; S. C. cited Brown v. Higgs, 5 Ves. 504, 505. 
 (w) Brown v. Higgs, 5 Ves. 504.
 
 RIGHTS OF THE CESTUI QUE TRUST. 567 
 
 In Brown v. Higgs(ic) an estate was devised " to one of the sons of 
 Samuel Brown, as Jolin Brown should direct by a conveyance in his life- 
 time, or by his last will and testament ;" and, John Brown not having 
 executed the power, Lord Alvanley was inclined to think, though he 
 would not decide the point, that the children of Samuel Brown could not 
 establish a claim : but the ground of this opinion was not that a trust 
 had been created which the court could not execute, but that the inten- 
 tion -of the testator as collected from the will was to communicate a mere 
 jjoioer. 
 
 *CHAPTER XXV. [*710] 
 
 THE RIGHTS OP THE CESTUI QUE TRUST IN PREVENTION OP A BREACH 
 
 OP TRUST. 
 
 As the estate of the cestui que trust depends for its continuance upon 
 the faith and integrity of the trustee, it is reasonable that the cestui que 
 trust, whose interest is thus materially concerned, should be allowed by 
 all practicable means to secure himself against the occurrence of any act 
 of misconduct. We shall, therefore next consider the rights of the cestui 
 que trust that have a tendency to secure to him this protection. 
 
 I. The cestui que trust is entitled to have the custody and administra- 
 tion of the estate confided to the care both of proper persons and of a 
 proper number of such persons. 
 
 Thus if the trustee originally appointed by a will happen to die in the 
 testator's lifetime, the cestid que trust, where such a course would be for 
 his interest, may have the property better secured by a conveyance to an 
 express trustee for himself. 
 
 So, where the original number of trustees has become reduced by 
 deaths, the cestui que trust may restore the property to its original secu- 
 rity by calling for the appointment of new trustees in the place of the 
 trustees deceased ;(a) and even a cestui que trust in remainder may file 
 a bill to have the number of trustees filled up. (6) 
 
 If a trustee refuse to act(c) or become so circumstanced that he cannot 
 eflFectually execute the ofiice (as where a trustee goes abroad to reside 
 permanently,((:/) or a */eme trustee marries,(e) or the trustees of r:i:7-|-|-] 
 a chapel entertain opinions contrary to the founder's intention, (/) L J 
 
 (x) 4 Yes. 708, see TlS, 719 ; 5 Ves. 495, see 508. 
 
 (a) Buchanan v. Hamilton, 5 Ves. 722 ; Hibbard V. Lambe, Amb.309. 
 
 (b) Finlay v. Howard, 2 Dru. & War. 490. 
 
 (c) Maggeridge v. Grey, Nels. 42; Travell v. Danvers, Finch, 380; Wood v. 
 Stane, 8 Price, 613. Anon. 4 Ir. Eq. Rep. 700. 
 
 {d) O'Reilly v. Alderson, 8 Hare, 101 ; Re Ledwich, 6 Ir. Eq. Rep. 561 ; Com- 
 missioners of Charitable Donations v. Archbold, 11 Ir. Eq. Rep. 187. 
 
 (c) Lake v. De Lambert, 4 Ves. 592. 
 
 (/) Attorney-General v. Pearson, 7 Sim. 290, see 309 : Attorney-General v. 
 Shore, lb. 309, see 317.
 
 568 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 or if the trustee become bankrupt,(^) or misconduct liimself in any man- 
 ner, (/i) (as by dealing with the trust property for his own personal 
 advancement,(i) by suffering a co-trustee to commit a breach of trust,(7i-) 
 or by absconding on a charge of forgery ;(/) in these and the like cases 
 the cestui qtie trust may have the old trustee removed, and a new trustee 
 appointed in his room. And in such a suit it will not be scandalous or 
 impertinent to challenge a trustee for misconduct, or to impute to him 
 any corrupt or improper motive in the execution of the trust, or to allege 
 that his behaviour is the vindictive consequence of some act on the part 
 of the cestui que trust, or of some change in his situation ; but it will be 
 impertinent, and may be scandalous, to state circumstances of general 
 malice or personal hostility.(m) And if the old trustee be removed on 
 the ground of misconduct, he must bear the expense of the conveyance 
 to the new trustee, as an act necessitated by himself. («) 
 
 If the settlement require the trustees of a charity to be inhabitants of 
 a particular place, it is improper to appoint persons trustees who do not 
 answer that description, provided at the time of the election there were 
 any inhabitants proper to be trustees. (o) But where it has been the 
 custom to appoint trustees not being inhabitants, the court will not 
 remove the existing trustees, though it will take care that the founder's 
 directions are better observed for the future )[p) and generally, though 
 r*-i 9-1 trustees may have been appointed irregularly in the *first instance, 
 L "'J the cestui que trust cannot come for their removal after an ac- 
 quiescence in the nomination for a great number of years. (j) 
 
 The court will not dismiss a trustee for the mere caprice of the cestui 
 que trust without any reasonable cause shown, (r) or because the trustee 
 has refused from honest motives to invest the trust fund in a purchase 
 of leasehold estate, where a power for the purpose was given to him with 
 the consent of the tenant for life, and the tenant for life thought the 
 purchase desirable,(s) nor even if the trustee have transgressed the strict 
 line of his duty, provided there was no wilful default, but merely a mis- 
 understanding. (<) Where, however, a trustee pertinaciously insisted on 
 being continued in the office, though his co-trustees were unwilling to 
 act with him. Lord Nottingham said, " He liked not that a man should 
 
 {g) Bainbri^ge v. Blair, 1 Beav. 495 ; In re Roche, 1 Conn. & Laws. 306 : Com- 
 missioners of Charitable Donations v. Archbold, 11 Ir. Eq. Rep. 187 ; and if the 
 trustee compound with his creditors, it is presumed that he may equally be re- 
 moved, for the cestuis que trust have a right to have the administration of the trust 
 estate committed to responsible persons. 
 
 ill) Mayor of Coventry T. Attorney-General, T B. P. C. 235 ; Buckridge v. Glasse, 
 Cr. & Ph. 126, see 131.' 
 
 (^) Ex parte Phelps, 9 Mod. 357. {k) Ex parte Reynolds, 5 Ves. 707. 
 
 {}) Millard v. Eyre, 2 Ves. jun. 94. 
 
 (m) Earl of Portsmouth t. Fellows, 5 Mad. 450. 
 
 \n\ Ex parte Greenhouse, 1 Mad. 92. 
 
 (0) Attorney-General v. Cowper, 1 B. C. C. 439. 
 
 {p) Attorney-General v. Stamford, 1 Phill. 737. 
 
 [q) Attorney-General v. Cuming, 2 Y. & C. Ch. Ca. 139, see 150. 
 
 (r) O'Keeffe v. Calthorpe, 1 Atk. 18 ; and sec Pippin v. Tucking, 2 Jones and 
 Lat. 95. 
 
 («) Lee V. Young, 2 Y. & C. Ch. Ca. 532. 
 
 (0 See Attorney-General v. Coopers' Company, 19 Ves. 192 ; Attorney-General 
 V. Caius College, 2 Keen, 150.
 
 RIGHTS OF THE CESTUI QUE TRUST. 569 
 
 be ambitious of a trust when he could get nothing but trouble by it," 
 and, without any reflection on the conduct of the trustee, declared he 
 should meddle no further in the trust. (?/) 
 
 If there be an arbitrary power, with which the original trustee was 
 invested, it is not exercisable by the new trustee appointed by the 
 court. (?;) And of course, a trustee appointed by the court cannot exer- 
 cise a legal power which the original trustee could not have assigned; as 
 if a power of sale be given to trustees to preserve contingent remainders, 
 and to the survivors of them, and the executors or administrators of the 
 survivors, new trustees appointed by the court cannot execute the 
 power. («•) 
 
 As the substitution of a trustee by the court proceeds upon a full 
 consideration of the case, and is never made unless the court is satisfied 
 as to the fitness of the person proposed, it *cannot be expected |-*--io-i 
 that the court should authorize the insertion of a power in the con- L J 
 veyance to the new trustees, enabling them to nominate other trustees 
 in their stead as often as occasion may require : this would plainly be an 
 abandonment by the court of its own jurisdiction — a delegation of it to 
 the care and judgment of individuals. Accordingly, notwithstanding 
 some previous fluctuation in the practice,(:c) it is now settled that, except 
 in charity cases,(.?/) the court will not authorize the insertion of such a 
 power in the deed of con veyance. (x) 
 
 It was commonly, but erroneously, supposed, that by a clause in Sir 
 Edward Sugden's Trustee Act,((T) (now repealed,) a new trustee might 
 in all cases have been appointed by the summary process of ?i petition. 
 However, the words of the enactment did not authorize a petition for the 
 mere purpose of appointment of new trustees, but only tchere applica- 
 tion was made under the act for a conveyance or transfer ivhich could 
 not otherwise he ohtained,{l>) and the recent creation of the trust or other 
 circumstances rendered it safe.(c^ The court had authority to appoint 
 new trustees by way of secondary or collateral only, and not of original 
 jurisdiction. 
 
 The court might have appointed a new trustee, although the settle- 
 
 (u) Uvedale v. Ettrick, 2 Ch. Ca. 130. 
 
 (v) Doyley v. Attorney-General, 2 Eq. Ca. Ab. 194; Hibbard v. Lambe, Amb, 
 309 ; Fordyce v. Bridges, 2 Phill. 497 ; and see Cole v. Wade, 16 Ves. 44, 47 ; 
 Drayson v. Pocock, 4 Sim. 283 ; Lord v. Bunn, 2 Y. & C. Ch. Ca. 98. 
 
 (w) Newman v. Warner, 1 Sim. N. S. 457. 
 
 (x) Joyce V. Joyce, 2 Moll. 27G; White v. White, 5 Beav. 221. 
 
 (/) Attorney-General v. Hurst, M. R., Dec. 2, 1791, Reg. Lib. A. 1791, f. 487; 
 see the decree, stated Seton's Dec. 130 ; In the matter of 52 G. 3, c. 101, 12 Sim. 
 262 ; Re Lovett's Exhibition, Sidn. Suss. Coll. Camb., cor. V. C. Knight Bruce, 
 Dec. 20, 1849. 
 
 (z) Bayley v. Mansell, 4 Madd. 226; Brown v. Brown, 3 Y. & C. 395; Southwell 
 V. Ward, Taml. 314; Bowles v. Weeks, 14 Sim. 591; Oglander v. Oglander, 2 De 
 Gex & Sm. 381 : Holder v. Durbin, 11 Beav. 594; in which last case LoVd Lang- 
 dale, M. R., in deference to the views of the other judges, declined to follow his 
 own previous decision in White v. White. 
 
 (a) 11 G. 4, & 1 W. 4, c. 60, s. 22. 
 
 (6) In re Fitzgerald, LI. & G. t. Sugd. 20 ; Ex parte Whitley, id. 23 ; In re An- 
 derson, id. 27 ; Re Byrne, 1 Jones & Lat. 535 ; In re Pennefather, In re Hartford, 
 Harte v. French, 2 Drur. & War. 292 ; but see Ex parte Pluuket, 8 Ir. Eq. Rep. 523. 
 
 (c) la re NichoUs, LI. & G. t. Sugd. 17 ; Ex parte Whitley, id. 23,
 
 570 LEAVIN ON THE LAW OF TRUSTS, ETC. 
 
 ment contained a looicer of appointing new trustees, if under the circum- 
 P^^^ ,-, stances the power could not be exercised,((Z) *but if the power 
 L *^^\ ^as exercisable the donees of the power should have nominated 
 a new trustee, and then a petition should have been presented, praying 
 the necessary conveyance or transfer, (e) If the person in whom the 
 lejral estate was vested could make the transfer without an order, there 
 was no case for the jurisdiction of the court. 
 
 By the larger provisions of the act now in force (13 & 14 Vict. c. 60, 
 s. 32,) it is enacted that whenever it shall be expedient to appoint a new 
 trustee or new trustees, and it shall be found inexpedient, difficidt, or 
 imprcticahle so to do without the assistance of the court, the court may 
 appoint a new trustee or trustees, either in substitution for or in addition 
 to any existing trustee or trustees. 
 
 The Banhriiptcy Act{^f) has also authorized the appointment of a new 
 trustee on j^etition in the case of the trustee's bankruptcy. It declares 
 that '' if any bankrupt shall, as trustee, be seised of or entitled to any 
 real or personal estate, it shall be lawful for the lord chancellor^!;) on 
 the petition of the person entitled in p)Ossession to the receipt of the 
 rent, issues, and profits, dividends, interest and produce thereof,(/i) on 
 due notice given to all other persons, if any, interested therein, to order 
 the assignees and all persons, whose act or consent thereto is necessary, 
 to convey, assign, or transfer the said estate to such person or persons as 
 the lord chancellor shall think fit upon the same trusts as the said estate 
 was subject to before the bankruptcy." • 
 
 Upon this enactment the following points have been determined : — 
 
 1. The act requires that notice should be given to all 2)ersons inte- 
 r-^^-, F-| rested. In one case where a conveyance was made *by A. to B. 
 '- J upon trust by sale or other disposition to secure a mortgage sum 
 advanced by C, and B. became bankrupt, the court refused to make an 
 order on the petition of A. without notice to C.(^) But afterwards in a 
 similar case notice to the mortgagor was dispensed with.(7,;) Where any 
 doubt exists who are the cestuis que trust all must be served, for it was 
 not meant that the court should decide upon the right. (A If the bank- 
 rupt himself be served with the petition he will be allowed his costs. (??i) 
 
 2. The act directs the assignees and others to convey ; but where the 
 trust is clear, the legal estate does not pass to the assignees, and there- 
 
 (d) In re Fauntleroy, 10 Sim. 252; In re Foxall, 2 Phill. 281; and see In re 
 Roche, 1 Conn. & Laws. 306. 
 
 (e) In re Laffan, 1 Conn. & Laws. 395. 
 
 (/) 12 & 13 Vict. c. 106, s. ]30, re-enacting 6 G. 4, c. 16, s. 19. 
 
 (,</) The petition, though it may be heard by a V. C, should be addressed to the 
 Lord Chancellor. Ex parte Cartwright, 3 De Gex & Sm. 648. In the matter of 
 Heath, 9 Hare, 616, the objection that the petition should be heard by the Court 
 of Ai3peal to whom the jurisdiction in bankruptcy had been committed by the 14 
 & 15 V. c. 83, was overruled, s. 7. 
 
 (h) These words, prescribing the 'person by whom the petition is to be presented, 
 limit the jurisdiction somewhat inconveniently. See Ex parte Cousen, 1 De Gex, 
 451. 
 
 (i) Ex parte Orgill, 2 D. & C. 413 ; and see Ex parte Hardman, 3 Mont. Deac. 
 & De Gex, 559. 
 
 (k) Ex parte Marshall, 3 De Gex & Sm. 6T0. 
 
 (l) Ex parte Congreve, 1 De Gex, 267. (m) Ex parte Whitley, 1 Deac. 478.
 
 EIGHTS OF THE CESTUI QUE TRUST. 57I 
 
 fore iu such a case tliey need not be parties to the conveyance, but the 
 words of the act are regarded as sutylusageJn) 
 
 3. The court is to order the conveyance, assignment, or transfer to be 
 made to such person or persons as the court shall think fit, and therefore 
 it has been held that if A. and B. be trustees, and A. die, and B. 
 become bankrupt, the court can order the conveyance, assignment, or 
 transfer to two new trustees. (0) 
 
 If there be a power of appointment of new trustees, and the power be 
 exercised, the court will direct the conveyance, assignment, or transfer 
 to be made to the person so appointed, (p) or if all parties interested who 
 are sui juris concur in the selection of a person as new trustee, the court 
 will order accordingly :(?/) or the court, on an affidavit of the fitness of 
 the person proposed, will in common cases make the appointment at 
 once without the expense of a reference. (r) 
 
 4. *The act directs the conveyance, assignment, or transfer to r-^^-, r,-, 
 be made upon the same trusts as the property was subject to L J 
 before the bankruptcy; but if the trust has since been executed, and a 
 petition be presented by the person solely interested, the court will 
 order the conveyance, assignment, or transfer to be made to the peti- 
 tioner, (s) 
 
 5. The costs of all parties, including the bankrupt himself,(^) will be 
 paid out of the trust fund,(«) or by the petitioner in the first instance, 
 who will recover them over from the trust fund.(y) 
 
 There exists in the case of charitable trusts, the same right to have a 
 proper number of trustees appointed in the case of an ordinary trust, 
 and a mode less expensive than by suit asserting the right has been 
 similarly provided by statutory enactment. Thus by the 1 Wm. 4, c. 
 60, s. 23, and 2 Wm. 4, c. 57, s. 3, it was in substance enacted that 
 when the person in whom any real property might have been vested in 
 trust for any clmrity should be dead^ the court of chancery might on 
 petition direct advertisements to issue for the representative of the person 
 or last survivor of the persons in whom such real property might have 
 been vested to appear or give notice of his title, and prove his pedigree 
 or other title as trustee, and if no person appeared to give such notice, or 
 the person giving it should fail to prove his title, the court might appoint 
 any new trustees for such charity, in case no trustees for such charity 
 duly appointed should then be existing, and such real property might be 
 
 {n\ Ex parte Painter, 2 D. & Ch. 584 ; see Ex parte Walton, 2 Mont. & Ayr. 242. 
 
 (o) Ex parte Wilkinson, 2 Deac. 151; S. C. 3 Mont. & Ayr. 145; Ex parte 
 Saunders, 2 Gr. & J. 132 ; Ex parte Inkersole, ib. 230. 
 
 {p) Ex parte , In re Remington, 3 D. & C. 24 ; and see Williams v. Bird, 
 
 1 V. & B. 3. 
 
 (9) See Ex parte Whish, 2 Mont. & Ayr. 214; Ex parte Stubbs, 2 Mont. Deac. 
 k De G. 570. 
 
 (r) Ex parte Beveridge, 4 D. & C. 455 ; Ex parte Inkersole, 2 G. & J. 230 ; Ex 
 parte Palmer, Deac. 1*77; Ex parte Walton, 2 M. & A. 242 ; Ex parte Page, 1 D. & 
 C. 321 ; Ex parte Buffery, 2 D. & C. 576; Ex parte Cartwright, 3 De Gex & Sm. 
 648. 
 
 (s) Ex parte Hancox, Mont. 247. 
 
 \t) Ex parte Whitley, 1 Deac. 478 ; and see Cartwright, 3 De Gex & Sm. G48. 
 
 (m) Ex parte Bufifery, 2 D. & C. 576. 
 
 {v) Ex parte Saunders, 2 G. & J. 132 ; Ex parte Painter, 2 D. & C. 584.
 
 572 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 conveyed to such new trustees wlien so appointed, or to the existing 
 trustees previously appointed, as the case might be, by any person whom 
 the said court might direct without the necessity of any decree. 
 
 Again by 5 & 6 Wm. 4, c. 76, s. 71, the act depriving the municipal 
 corporations of the administration of charities, it was enacted that in 
 every borough in which the body corporate or *any one or more 
 L J of the members of such body corporate in his or their corporate 
 capacity then stood solely or together with any person or persons elected 
 solely by such body corporate, or solely by auy particular number, class, 
 or description of members of such body corporate, seised or possessed for 
 any estate or interest ivhatsoever of any hereditaments or personal estate 
 whatsoever, in whole or in part, in trust or for the benefit of any charita- 
 ble uses or trusts whatsoever, all the estate, right, interest, and title, and 
 all the powers of such body corporate or of such member thereof, should 
 from and after the 1st day of August, 1836, utterly cease. Provided 
 also, that if parliament should not otherwise direct, on or before the 
 said 1st day of August, 1836, {lohicli was not done,) the lord high chan- 
 cellor or lords commissioners of the great seal should make such orders 
 as he or they should sec fit for the administration, subject to such chari- 
 table uses or trusts as aforesaid, of such trust estates. 
 
 Under the authority « to make orders," the court of chancery has 
 from time to time, for the due management of the charity property, 
 appointed trustees in the place of the corporation. The jurisdiction of the 
 court, however, has been held not to apply to a case only where no estate 
 was vested in the old corporation, the charity property being vested in 
 trustees and the corporation being merely visitors with powers of nomi- 
 nation. (w) But where there was a charity corporation substantially, 
 though not identically, the same in its component parts as the municipal 
 corporation, the case was held to be within the spirit if not the letter of 
 the section above referred to.(.t) 
 
 The appointment of trustees by the court under the act, though it 
 made them the custodiers of the property, could not of course transfer to 
 them the legal estate, which, notwithstanding the strong negative words 
 used in the statute, it was decided, remained in the corporation. (?/) ]Jut 
 now by 16 & 17 Vict. c. 137, s. 65, the legal estate is vested 
 L J without *any actual conveyance in the trustees appointed by the 
 lord chancellor, and upon the death, resignation, or removal of any of 
 the trustees, and the appointment of any new trustee or trustees, the 
 legal estate is transferred to the trustees for the time being without any 
 conveyance. 
 
 Petitions for filling up vacancies in the number of trustees of chari- 
 ties, whether in substitution for a corporation or otherwise, ought under 
 the old practice to have been presented under Sir S. llomilly's Act (52 
 Geo. 3, c. 101,) as well as the municipal corporation act, and the 
 
 (w) Attorney-General v. Newbury Corporation, C. P. Coop. Rep. 837-38, 72 ; 
 Christ's Hospital v. Grainger, 16 Sim. 102. 
 
 (z) Attorney-General v. Mayor, &c., of Exeter, 2 Do Gex, Mac. & Gor. 507. 
 (y) Doe V. Norton, 11 Mees. & W. 913.
 
 RIGHTS OF THE CESTUI QUE TRUST. 573 
 
 attorney's-general fiat must have been obtained to sucb a petition/,:) 
 though this rule does not appear to have been uniformly adhered to.(«) 
 
 Now under the charitable trusts act (16 & 17 Vict. c. 137,) s. 28, new- 
 trustees of any charity the gross annual income whereof exceeds 30^.(6) 
 may be appointed by one of the equity judges in chambers, and the court 
 has power at the same time to make an order under the trustee act, wiV/t- 
 oxit petition, vesting the estates in the new trustees. (c) But the sanction 
 of the charity commissioners under the 17th section, must be obtained. 
 
 II. The cestui que trust is entitled to file a bill against his trustee, and 
 compel him to the execution of any particular act of duty. 
 
 Thus, if the legal estate in the hands of the trustee be assailed by a 
 stranger, the cestui que trust may not institute proceedings in the name 
 of the trustee without his authority, (rf) but may oblige the trustee on 
 giving him a proper indemnity to assert the legal right ;(e) and so if the 
 trustee of a covenant, even a voluntary one, will not sue upon it, the 
 cestui que trust, *may compel the trustee on a proper indemnity I-5^H.-,Q-| 
 to lend his name to the cestui que trust, to enable him to sue.(/) L J 
 Otherwise, should the trust property be lost, and the trustee himself 
 become insolvent, the cestui' s que trust equitable interest would be abso- 
 lutely destroyed. 
 
 But if A. allege in himself a title which he does not possess, and sells 
 to B. for valuable consideration without notice of a prior settlement under 
 which C. is the real cestui que trust, the court will not, in a suit by C. 
 against A. and B., compel the trustee of the settlement to convey the 
 legal estate to C, or to lend his name to C. for the purpose of trying an 
 ejectment against B. the bonajide purchaser for value without notice. (,9') 
 
 Sir Joseph Jekyll laid down the rule, that '' the forbearance of the 
 trustees in not doing what it was their office to have done should in no 
 sort prejudice the cestuis que tr^ist ;"(Ji\ and hence it has been inferred 
 that a right gained by a stranger through the neglect of the trustee shall 
 be no bar in equity to the claim of the cestui que trust ; but the principle 
 was evidently intended to apply as between the privies to the trust only, 
 and not as between the^:)?'iftes to the trust and a stranger. 
 
 " The rule, that the statute of limitations does not bar a trust estate," 
 said Lord Hardwicke, '< holds only as between cestui que trust and trus- 
 tee, not between cestui que trust and trustee on the one side, and stran- 
 gers on the other, for that would make the statute of no force at all, 
 
 (z) Re Warwick Charities, 1 Phill. 559 ; Re Rolle's Charity, 3 De Gex, Mac. & 
 Gor. 153 ; Re London, Brighton, &c. Railway Co., 18 Beav. 608. 
 
 (a) Nightingale's Charity, 3 Hare, 336; Belke's Charity, 13 Jur. 317. 
 
 (b) By s. 32, where the income is below 30^., the district courts of bankruptcy 
 and county courts have jurisdiction. 
 
 (c) Re Davenport's Charity, 4 De Gex, Mac. & Gor. 839; In Lincoln Primitive 
 Methodist Chapel, 1 Jur. N. S. 1011, V. C. Stuart does not appear to have been 
 aware of the decision in Davenport's Charity. 
 
 (d) See Crossley v. Crowther, 9 Hare, 386. 
 
 (e) Foley v. Burnell, 1 B. C. C. 277, per Lord Thurlow ; Cary, 14; and see 
 Kirby v. Mash, 3 Y. & C. 295 ; Malone v. Geraghty, 2 Conn, and Laws. 251. 
 
 (/) See Fletcher v. Fletcher, 4 Hare, 78. 
 
 Iff) Turner v. Buck, 22 Vin. Ab. 21. 
 
 {h) Lechmere v. Earl of Carlisle, 3 P. W. 215. 
 
 April, 1858.— 37
 
 574 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 because there is liarclly any estate of consequence without such trust, and 
 so the act would never take place. Therefore, where a cesHii que trust 
 and his trustee are both out of possession for the time limited, the party 
 in possession has a good bar against them both.''(?') " A cestui que imst," 
 said Lord Kedesdale, " is always barred by length of time operating 
 ao-ainst the trustee. If the trustee does not enter, and the cestui que 
 trust does not compel him to enter, as to the person claiming paramount, the 
 cestui que trust is barred."(A-) And Lord Manners observed, 
 L * "^^J *c( The opinion of Sir J. Jekyll, if intended to apply to third 
 persons, which I do not conceive it was, has often been denied, and is 
 contrary to many decisions. If the trustees who are so appointed neglect 
 their duty, and suffer an adverse possession of twenty years to be held, 
 I apprehend the Statute of Limitations is a bar to the cestui que 
 trust."{l) 
 
 In Allen v. Sayer,(7?i) as corrected from the Registrar's Book, a testa- 
 tor gave his real estate after his mother's and 2i-i/e's decease to Allen, an 
 infant, his heirs and assigns, and by the same will gave his real estate 
 to A. B. and C. D. upon trust, if occasion should be, to sell the same in 
 aid of the personal estate for payment of debts, and appointed his wife 
 and mother the executrixes of his will. The wife renounced, and the 
 mother only proved. Shortly after the testator's decease, which happened 
 about 1678, the trustees of the will not offering to interfere, and Allen 
 being of the age of ten years, and the testator's mother of great age, and 
 therefore averse to any dispute, one Sayer, who was connected with the 
 family by marriage, and pretended a claim to the lands, prevailed with 
 (Curtis, the tenant in possession under a lease for years, to attorn and pay 
 rent to himself, and gave him a bond of indemnity. Sayer then levied 
 a fine of the lands icith proclainatiojis, and five years passed and no 
 entry was made. In 1688, the testator's mother died, and the right of 
 Allen, the infant, to the possession, then accrued. About 1689, the in- 
 fant attained his age of twenty-one years, and in 1690 brought an eject- 
 ment at law, but failed. Upon this he instituted a suit in equity, and 
 Lord Somers decreed, that " the fine and non-claim should not incur 
 against the plaintiff, who was then an infant ;" and his lordship is re- 
 ported by Vernon to have said, that « although the fine and non-claim 
 was a good bar at law, the legal estate being in the trustees, who were 
 of full age and ought to have entered, yet the plaintiff ought not to suffer 
 for their laches, being an infant, and who, so soon as of age, made entry, 
 r*"^9-i1 *^^^ brought his ejectment, and likewise his bill in that court, 
 L "' -I before five years had incurred after he had attained his age." 
 But this must not be taken as a decision by Lord Somers, that the right 
 of an infant cestui que trust to a legal estate cannot be barred by the 
 laches of his trustee ; for it must be remarked, 1. That the legal fee was 
 
 [i) Lewellin v. Mackwortb, 2 Eq. Ca. Ab. 579. 
 
 [k) Hovenden v. Lord Anneslej, 2 Sch. & Lef. 629. 
 
 [l] Pentland v. Stokes, 2 B. & B. 75. In this case the cestui que trust was part 
 of the time an infant, and as Lord Manners expressed a general opinion, it would 
 seem he concurred in the doctrine, that an infant is bound as well as an adult. 
 
 (w) 2 Vern. 368. See the case stated from Reg. Lib., Appendix. No. X. 
 
 I
 
 RIGHTS OF THE CESTUI QUE TRUST. 575 
 
 in the trustees, both by foi'ce of the word " estate/' and also from the 
 trust to sell, and therefore the infant could not have maintained an action 
 at law independently of the fine and non-claim. 2. It is not clear that 
 the conusor, when he levied the fine, was seised of the freehold; for he 
 had merely the attornment of the tenant, and this of itself would not 
 work a disseisin. (n) 3. The interest of the infant was subject to the 
 prior life estate in the same lands of the testator's mother, and it is not 
 said, howeYer jjrobable, that this estate was taken under the will: if it 
 was an estate prior to the testator's interest, then, as the mother did not 
 die till 1688, the right of entry of the infant, or rather of the devisees 
 in trust for him, was not barred until five years after the reversion had 
 fallen into possession, within which period of time the suit in equity was 
 instituted. 4. The conusor of the fine had full notice of the trust, and 
 contrived to get into possession of the land through the fraud and col- 
 lusion of the tenant, to whom he had given a bond of indemnity, and it 
 cannot be disputed, that, where the conusor's estate was originally infected 
 with fraud, the fine and non-claim can have no efi"ect in removing the 
 blot.(o) 
 
 In The Earl v. The Countess of Huntingdon,(p) Lord Macclesfield 
 was of opinion, that a fine and five years' non-claim would, in favour of 
 a purchaser, bar a trust term, though the cestui que trust was an infant. 
 
 In Wych v. The East India Company,(2') A. had agreed with the 
 company for an allowance of two per cent., and afterwards died intestate, 
 leaving an infant son. B. took out administration durante minoritate, 
 but instituted no suit upon the contract. *The son, within sis p^_^^-, 
 years after he had attained his age, but not within six years after L ' ^J 
 the cause of action accrued, brought his bill against the company for an 
 account, and they pleaded the Statute of Limitations. Lord Talbot said, 
 "The administrator, during the infancy of the plaintiff, had a right to 
 sue ; and though the cestui que trust was an infant, yet he must be bound 
 by the trustees not suing in time; for I cannot take away the benefit 
 of the Statute of Limitations from the company, xoho are, in no defaidt, 
 and are entitled to take advantage thereof as well as private persons, 
 since their witnesses may die, or their vouchers be lost. And as to the 
 trust, that is only between the administrator and the infant, and does not 
 affect the company." 
 
 It must be observed, however, that the principles involved in the 
 foregoing authorities seem to be impliedly contradicted by the recent 
 Statute of Limitations, 3 & 4 Wm. 4, c. 27, s. 24, which, while creating 
 an absolute bar to equitable as well as legal estates, appears to assume 
 that the trustee and cestui que trust have distinct rights of suing; and 
 further, that although the 25th section of the act, providing that the 
 right of the cestui que trust shall be deemed to have accrued at and not 
 before the time of conveyance by the trustee to a purchaser for value, 
 
 {n) See Co. Lit. 322 b, 325 p.. 
 
 (0) See Kennedy v. Daly, 1 Sell. & Lef. 3V9, 381 ; Salsbury y. Bagott, 2 Sw. 
 612 ; Bell v. Bell, LI. & G'. t. Plunket, 44 ; Reece v. Trye, 1 De Gex & Sm. 273 ; 
 Langley t. Fisher, 9 Beav. 90. 
 
 {p) Cited Wvch v. East India Company, 3 P. W. 310. note (G). 
 
 \q) 3 P. W. 309.
 
 576 LEWIN ON THE LAAV OF TRUSTS, ETC. 
 
 mi"-ht seem at first sight to give a statutory recognition to those princi- 
 ples alhided to, yet, according to the tenor of the late decisions, that 
 section is to be viewed merely as a special exception in favour of the 
 cestui que trust, and not as abridging the rights to sue of a cestui que 
 trust in remainder or under disability. (r) 
 
 If a tenant for life of leaseholds, who is regarded as a trustee for the 
 remainderman, be bound to renew, and by his threats or acts manifest 
 an intention not to renew, the remainderman may file a bill, and have a 
 receiver appointed for the purpose of providing the renewal fine out of 
 the rents and profits of the estate ; and if the period of renewal has already 
 expired, a receiver may be appointed on proof of the tenant's for life 
 default, (s) 
 
 *In one case, where a suspicion was entertained that the trustee 
 L J would not fairly execute his trust, the court required of him, if 
 he continued in the office, to enter into securities for his good faith. (<) 
 
 And generally a cestui qiie trust, though entitled to a mere contingent 
 benefit, may, upon reasonable cause shown, apply to the court to have 
 his interest properly secured. («) 
 
 III. As the cestui que trust may compel the trustee to the observance 
 of his duty, so, on the other hand, if the cestui que trust have reason to 
 suppose, and can satisfy the court, that the trustee is about to proceed to 
 an act not authorized by the true scope of the trust, he may obtain an 
 injunction from the court to restrain the trustee from such a wanton 
 exercise of his legal power, (v) 
 
 It is clear the cestui que trust would be entitled to an injunction where 
 the act in contemplation would, if done, be irremediable ;(w) but in Pechel 
 v. Fowler,(a:) a case in the exchequer, it is said to have been held, that 
 a cestui que trust could not restrain an improvident sale by the trustee, 
 because the cestui que trust might proceed against the trustee for the 
 consequential damage to the estate, and so the injury was not irreparable ; 
 but Sir J. Leach, under similar circumstances, granted an injunction ;(?/) 
 and other authorities are not wanting in support of so just and reasonable 
 a right, fz^ 
 
 (r) Thompson v. Simpson, 1 Dru. & War. 489 ; Commissioners of Charitable 
 Donations V. Wybrants, 1 Jon. & Lat. 182; Attorney-General v. Magdalen College, 
 (reversed in D. P., on the 13th of June, 1857,) 18 Beav. 223, see 239, 250. N. B. 
 In none of these cases had there been an actual conveyance by a trustee. 
 
 (s) See Bennett v. Colley, 5 Sim. 192 ; S. C. 2 M. & K. 233. 
 
 \t) Keeling v. Child, Rep. t. Finch, 360. 
 
 (m) Cole V. Moore, Mo. 806. {v) Balls v. Strutt, 1 Hare, 146. 
 
 (w) See Corporation of Ludlow v. Greenhouse, 1 Bl. N. R. 57; In re Chertsey 
 Marliet, 6 Price, 279, 281; Attorney-General v. Foundling Hospital, 2Yes. jun. 42. 
 
 {x) 2 Anst. 549. [y) Anon, case, 6 Mad. 10. 
 
 (2) See Webb v. Earl of Shaftesbury, 7 Ves. 487, 488 ; Reeve t. Parkins, 2 J. 
 & W. 390 ; Milligan v. Mitchell, 1 M. & K. 446 ; Attorney-General v. Mayor of 
 Liverpool, 1 M. & C. 210 ; Vann v. Barnett, 2 B. C. C. 157.
 
 REMEDIES OF THE CESTUI QUE TRUST. 577 
 
 *C H A P T E R X X Y I. [*724] 
 
 THE REMEDIES OF THE CESTUI QUE TRUST IN THE EVENT OF A 
 BREACH OF TRUST. 
 
 Upon the subject of tlie cestui's que trust remedies for a breach of 
 trust, we shall consider, 1. The right of the cestui que trust to follow the 
 estate into the hands of a stranger, to whom it has been tortiously con- 
 veyed ; 2. The right of attaching the property into which the trust estate 
 has been wrongfully converted ; 3. The remedy against the trustee per- 
 sonally, by way of compensation for the mischievous consequences of the 
 act ; and, 4. The mode and extent of redress in breaches of trust com- 
 mitted by trustees of charities. 
 
 SECTION I. 
 
 OF FOLLOWING THE ESTATE INTO THE HANDS OF A STRANGER. 
 
 The questions that suggest themselves upon this subject are, First, 
 Into whose hands the estate may be followed ; Secondly, Within what 
 limits of time ; Thirdly, What account the court will direct of the mesne 
 rents and profits. 
 
 I. If the alienee be a volunteer, then the estate may be followed into 
 his hands, whether he had notice of the trust,(a) or not;/i) for, though 
 he had no actual notice, yet the court *will imply it against him ^^-^^-. 
 where he paid no consideration. But, if the alienee be a p?^?'- L "" J 
 chase?' of the estate, at its full value, then, if he take with notice of the 
 trust, he is (subject to the protection afi"orded by the Statutes of Limita- 
 tions) bound to the same extent and in the same manner as the person 
 of whom he purchased,(c) even though the conveyance was made to him 
 by fine with non-claim ^(cl) for, knowing another's right to the property, 
 he throws away his money voluntarily, and of his own free will ;(e) and 
 
 (a) Mansell v. Mansell, 2 P. W. 6T8; Saunders v. Dehew, 2 Vern. 271; S. C. 
 2 Freem. 123 ; Langton v. Astrey, 2 Ch. Re. 30 ; S. C. Nels. 126. 
 
 (b) Mansell v. Mansell, 2 P. W. 681, per Cur.: Bell v. Bell, 1 Rep. t. Plunkett, 
 58 ; Pye v. George, 2 Salk. 680, per Lord Harcourt ; and see 1 Re. 122 b; Burgess 
 V. Wheate, 1 ed. 219 ; Spurgeon v. Collier, 1 ed. 55; Cole v. Moore, Mo. 806. 
 
 (c) Dunbar v. Tredennick, 2 B. & B. 319, per Lord Manners ; Pawlett v. Attor- 
 ney-General, Hard. 469, per Lord Hale ; Burgess v. Wheate, 1 Ed. 195, per Sir 
 T. Clarke ; Bovey v. Smith, 1 Vern. 149 ; Phayre v. Peree, 3 Dow. 129 ; Adair v. 
 Shaw, 1 Sch. & Lef. 262, per Lord Redesdale ; Wigg v. Wigg, 1 Atk. 382 ; Mead 
 V. Lord Orrery, 3 Atk. 238, per Lord Hardwicke ; Mackreth v. Symons, 15 Ves. 
 350, per Lord Eldon ; Mansell v. Mansell, 2 P. W. 681, per Cur.; Willoughby v. 
 Willoughby, 1 T. R. T71, per Lord Hardwicke; Verney v. Carding, cited Joy v. 
 Campbell, 1 Sch. & Lef. 345; Flemming v. Page, Rep. t. Finch, 320; Powell v. 
 Price, 2 P. W. 539, admitted; Backhouse v. Middleton, 1 Ch. Ca. 173; S. C. id. 
 208 ; Walley v. Whalley, 1 Vern. 484 ; Pearce v. Newlyn, 3 Mad. 186. 
 
 (d) Kennedy v. Daly, 1 Sch. & Lef. 355 ; and see Bell v. Bell, 1 Rep. t. Plunket, 44. 
 
 (e) Mead v. Lord Orrery, 3 Atk. 238, per Lord Hardwicke.
 
 578 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 tlie rule applies not only to the case of a trust, properly so called, but to 
 purchasers with notice of any equitable incumbrance, as of a covenant or 
 agreement affecting the estate,(/) or a lien for purchase-money. (^r) But, 
 if a hona fide purchaser have not notice, he then merits the full protec- 
 tion of the court, and his title, even in equity, cannot be impeached. (A) 
 *If the purchaser have no notice of the trust at the time of the 
 [*726] p^^gjjase, but afterwards discover the trust and obtain a convey- 
 ance from the trustee,it seems he cannot protect himself by taking shelter 
 under the legal estate ; for notice of the trust converts him into a trustee, 
 and he must not, to get a plank to save himself, be guilty of a breach of 
 trust. (A A purchaser without notice from a purchaser with notice is not 
 liable, for his own hona fides is a good defence in itself, and the mala 
 fides of the vendor ought not to invalidate it.(/j) But the rule does not 
 apply to the case of a charitable use, for it has been ruled that a pur- 
 chaser without notice from a purchaser with notice shall be bound by the 
 claim of the charity. (/) In other respects the principles of equity as to 
 the doctrine of notice are applicable to charities in the same manner as 
 between private persons. (m) 
 
 A purchaser with notice from a purchaser without notice is exempt 
 from the trust, not from the merits of the second purchaser, but of the 
 first ; for if an innocent purchaser were prevented from disposing of the 
 beneficial interest, the necessary result would be a stagnation of pro- 
 perty.(n) But, if the trustee sell the lands to a Z/o?ia/f?e purchaser without 
 notice, and afterwards /imse?/" become the owner of the lands, though 
 for a good and valuable consideration, the trust as to him revives again, 
 and he shall restore the land to the trust :(o) and in this respect equity 
 
 (/) Daniels v. Davison, 16 Yes. 249; Earl Brook v. Bulkeley, 2 Ves. 498; 
 Taylor v. Stibbert, 2 Ves. jun. 437; Winged v. Lefebury, 2 Eq. Ca. Ab. 32; 
 Ferrars v. Cherry, 2 Vern. 384; Jackson's case, Lane, 60; Crofton v. Ormsby, 2 
 Sch. & Lef. 583 ; Kennedy v. Daly, 1 Sch. & Lef. 355. 
 
 {g) Mackreth v. Symmons, 15 Ves. 329 ; Walker v. Preswick, 2 Ves. 622, per 
 Lord Hardwicke ; Kator v. Pembroke, 1 B. C. C. 302, per Lord Loughborough; 
 Gibbons V. Baddall, 2 Eq. Ca. Ab. 682, note (6); Elliot v. Edwards, 3 B. & P. 181 ; 
 and see Grant v. Mills, 2 V. & B. 306; Dunbar v. Tredennick, 2 B. & B. 320. 
 
 (A) Burgess v. Wheate, 1 Ed. 195, per Sir T. Clarke ; Id. 246, per Lord Henley; 
 Millard's case, 2 Freem. 43 ; Mansell v. Mansell, 2 P. W. 681, per Cur. ; Willoughby 
 V. Willoughby, 1 T. 11. 771, per Lord Hardwicke ; Dunbar v. Tredennick, 2 B. & B. 
 318, per Lord Manners ; Trevor v. Trevor, 1 P. W. 633 ; Harding v. Hardrett, Rep. 
 t. Finch, 9 ; Cole v. Moore, Mo. 806, per Cur. ; Jones v. Powles, 3 M. & K. 581 ; 
 Payne v. Compton, 2 Y. & C. 457. 
 
 (i) Saunders v. Dehew, 2 Vern. 271 ; S. C. 2 Freem. 123; Langton v. Astrey, 2 
 Ch. Re. 30 _; S. C. Nels. 126. 
 
 {k) Mertins v. Joliffe, Amb. 313, per Lord Hardwicke; Ferrars v. Cherry, 2 
 Vern. 384; see Pitts v. Edelph, Tothill, 104; Salsbury v. Bagott, 2 Sw. 608. 
 
 (I) East Greenstead's case, Duke, 65, Sutton Colefield case, id. 68 ; and see id. 
 94, 173; see Commissioners of Charitable Donations v. Wybrants, 2 Jones & Lat. 
 194. (m) See 3 Vend, and Pur. 944, 13th ed. 
 
 {n) Harrison v. Forth, Pr. Ch. 51 ; Bradwell v. Catchpole, stated Walker v. 
 Symonds, 3 Sw. 78, note (a); Mertins v. Jolliife, Amb. 313, per Lord Hardwicke; 
 Brandlyn V. Ord, 1 Atk. 571, per eundem ; Sweet v. Southcote, 2 B. C. C. 66; 
 M'Queen v. Farquhar, 11 Yes. 478, per Lord Eldon ; Lowther v. Carlton, 2 Atk. 
 242 ; S. C. 3 Barn. 358 ; S. C. For. 187 ; Andrew v. Wrigley, 4 B. C. C. 136, per 
 Cur. ; Salsbury v. Bagott, 2 Sw. 608, per Cur. 
 
 (o) Bovy V. Smith, 2 Ch. Ca. 124; S. C. 1 Vern. 60, 84, 144; Kennedy v. Daly, 
 1 Sch. & Lef. 379, per Lord Redesdale.
 
 REMEDIES OF THE CESTUI QUE TRUST. 579 
 
 follows the law ; for, if a trespasser of goods *sell tliem iu market i-x:-.,--! 
 overt, the owner's title is barred } but if they come to the tres- L " -I 
 passer again, the owner may seize them.(jj) 
 
 Upon the question, how far a purchaser will be bound by notice of a 
 doubtful equity, Lord Northington said, in Cordwell v. Mackrill,((/) 
 <■<■ A man must take notice of a deed on which an equity, supjiorted by 
 precedents the justice of which every one acknowledges, arises, but not 
 the mere construction of words, which are uncertain in themselves, and 
 the meaning of ichich often dejiends on their locality." And Sir W. 
 Grant observed, <' There may be such a doidjtful equity that a ^purchaser 
 is not to be taken to know what will be the decision, and that is all Lord 
 Camden(r') means ; but in this case the equity is clear." [s^ 
 
 The rule, that " heirs of the body" in articles shall be construed 
 <' first and other sons," does not appear to have been fully established 
 till about the year 1720 :(<) Lord Hardwicke therefore said, that notice 
 of ancient articles, that is, of articles before the doctrine was well settled, 
 should not bind a bona fide purchaser.(?<) And afterwards, in a case of 
 both articles and settlement befoi'e marriage, the settlement reciting the 
 articles, Lord Hardwicke thought that, as the equity in this instance 
 rested upon a single authority,(«) and that one in which the question 
 arose between the parties and their representatives and mere volunteers, 
 the purchaser ought not to be bound by the claim of the issue. (m;) But 
 notice of modern articles, that is, of articles entered into since the clear 
 establishment of the rule, will affect a purchaser ;(jc) but, even then, the 
 articles themselves must be produced, that the court may judge i-^-toq-i 
 *from the whole instrument; for the true construction depends L "'-' 
 upon the words, and other parts of the deed may be material to find out 
 their meaning. (^) 
 
 Lord St. Leonards however, observed, that Cordwell v. Mackrill was 
 of no great authority, though decided by a great judge ; and conceived 
 the true rule to be that, where upon the whole articles it was plain what 
 construction the court would put upon them had it been called upon to 
 execute them at the time they were made, they should be enforced hoicever 
 dijficidt the construction might be, even as against z. purchaser with notice, 
 but not after a lapse of time where there was anything so eqirivocal or 
 ambiguous iu them as to render it doubtful how they ought to be 
 e2"ectuated.(2) 
 
 In a case where a residuary legatee had enjoyed for ninteen years a 
 copyhold estate, which had been mortgaged to the testator in fee, and 
 then the heir of the testator recovered the land by ejectment and mort- 
 
 {p) See Bovy v. Smith, 2 Ch. Ca. 126. 
 
 Iq) Cordwell v. Mackrill, 2 Ed. 347 ; S. C. Amb. 516. 
 
 (r) Sir W. Grant appears to have supposed the decision was by Lord Camden. 
 
 (s) Parker V. Brooke, 9 Ves. 588. {t) By Trevor v. Trevor, 1 P. W. 622. 
 
 (m) Senhouse v. Earle, Amb. 288 ; accordingly relief not asked against pur- 
 chasers in West v. Errissey, 2 P. W. 349. 
 
 (v) West V. Errissey, 2 P. W. 349. {w) Warrick v. Warrick, 3 Atk. 291. 
 
 (x) Senhouse v. Earle, Amb. 288, per Lord Hardwicke ; Davies v. Davies, 4 Beav. 
 54 ; and see Parker v. Brooke, 9 Ves. 587. 
 
 {y) Cordwell v. Mackrill, Amb. 515; S. C. 2 Ed. 344. 
 
 {z) Thompson v. Simpson, 1 Dru. & War. 491.
 
 580 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 gaged it, and the residuary legatee, having neglected to assert his title 
 tolhe possession for nine years, at the end of that period filed a bill in 
 chancery, and established his claim, it was determined that the mort- 
 gagee of the heir after the ejectment was not called upon to notice the 
 right of the residuary legatee; for it was not that <■<■ dear hroad ylain 
 equity" which should affect a purchaser.(a) 
 
 A testator had given a leasehold estate to his daughter to her sole and 
 separate use, but witliout the interposition of a trustee,{V) and the hus- 
 band, supposing himself absolutely entitled, entered into possession, and 
 afterwards mortgaged the premises ; and it was held the mortgagee was 
 bound to notice the equitable construction of the will, as a doctrine well 
 understood ;(c) and, the husband having obtained a reversionary lease 
 and mortgaged it, the mortgagee was of course held cognizant of the 
 rule, that leases obtained under cover of the tenant right would be sub- 
 ject to the equity of the original term.(c?) 
 
 ., *Where the trust estate to be followed is an equitable interest 
 
 L -I only, then, prima facie, the title of the cestui que trust must pre- 
 vail against the alienee ; since, as between parties entitled to equities 
 only, the general rule is, quijyrior est tempore potior est Jure ; that is, as 
 between persons having only equitable interests, if their merits are in all 
 other respects equal, priority of time gives the better equity. (e) Thus a 
 party taking an equitable mortgage, with notice of a prior equitable 
 mortgage, cannot, by assignment to another without notice, give him a 
 a better title. (/) 
 
 And as to choses in action of which the legal interest is not transfer- 
 able at law, a purchaser, whatever amount may have been paid by him, 
 cannot stand on a better footing than the trustee of whom he purchased, 
 but must (in conformity with the established rule governing assignments, 
 of cJioses in action^ hold it subject to precisely the same equities as the 
 trustee. (^) 
 
 II. Within what limits of time the suit must be instituted. 
 
 It is a well-known rule, that, as between cestui que trust and trustee 
 in the case of a direct trust, no length of time is a bar ; for, from the 
 privity existing between them, the possession of the one is the posses- 
 sion of the other, and there is no adverse title. (/<) It has hence been 
 
 (a) Hardy v. Reeves, 4 Yes. 466 ; S. C. 5 A'es. 426. 
 
 (6) See supra, p. 121. (c) Parker v. Brooke, 9 Yes. 583. 
 
 (d) And see Coppin v. Fernyhough, 2 B. C. C. 291. 
 
 (e) See Rice v. Rice, 2 Drewry, 13. { f) Ford v. White, 16 Beav. 120. 
 (g) Ord V. White, 3 Beav. 357; Cockell v. Taylor, 15 Beav. 103; Clack v. 
 
 Holland, 19 Beav. 262 ; Barnard v. Hunter, 2 Jur. N. S. 1213 ; Mangles v. Dixon, 
 3 H. of L. Ca. 702. 
 
 (A) See Chalmer v. Bradley, 1 J. & W. 67 ; Bennett v. Colley, 2 M. & K. 232; 
 Llevellyn v. Mackworth, Barn. 449; Wilson v. Moore, 1 M. & K. 146; Tovrnshend 
 V. Townshend, 1 B. C. C. 554; Hammond v. Hicks, 1 Vern. 432 ; Norton v. Turvill, 
 2 P. W. 144; Bell v. Bell, Rep. t. Plunket, 66; Attorney-General v. Mayor of 
 Exeter, Jac. 448 ; Heath v. Henly, 1 Ch. Ca. 20 ; Sheldon v. Weldraan, 1 Ch. Ca. 
 26; Wedderburn v. Wedderburn, 2 Keen, 749 ; 4 M. & C. 41 ; Lord Hollis's case, 
 2 Vent. 345, Earl of Pomfret v. Windsor, 2' Yes. 484; Hargreaves v. Mitchell, 6 
 Mad. 326; Nevarre v. Button, 1 Yin. Ab. 185; Shields v. Atkins, 3 Atk. 563; 
 Phillipo V. Munnings, 2 M. & C. 309; Ward v. Arch, 12 Sim. 472; Youne v. 
 Waterpark, 13 Sim. 204: Gough v. Bult, 16 Sim. 323.
 
 REMEDIES OF THE CESTUI QUE iKUST. 581 
 
 argued, tliat, as the person into wliose hands the estate is followed is 
 also, by construction of law, a trustee, the cestui que trust is entitled to 
 the benefit of the rule, and is not precluded by mere lapse of time from 
 *establishing his claim. But the authorities to the contrary are p'rgQ-i 
 clear and express, and cannot leave a doubt. (?') ■- -' 
 
 <<It is certainly true," said SirW. Grant, "that no time bars a direct 
 trust ; but if it is meant to be asserted that a court of equity allows a 
 man to make out a case of constructive trust at any distance of time 
 after the facts and circumstances happened out of which it arises, I am 
 not aware that there is any ground for a doctrine so fatal to the security 
 of property as that would be : so far from it, that not only in circum- 
 stances where the length of time would render it extremely difficult to 
 ascertain the true state of the fact, but where the true state of the fact is 
 easily ascertained^ and where it is perfectly clear that relief woidd ori- 
 ginally have been given upon the ground of constructive trust, it is re- 
 fused to the party who, after long acquiescence comes into a court of 
 equity to seek that relief "(Jc) And Lord Redesdale observed, " The 
 position that trust and fraud are not within the statute must be thus 
 qualified : that if a trustee is in possession, and does not execute his 
 trust, the possession of the trustee is the possession of the cestui que trust ; 
 and if the only circumstance is, that he does not perform his trust, his 
 possession operates nothing as a bar, because his possession is according 
 to his title : but the question of fraud is of a very difi"erent description ; 
 that is a case where a person who is in possession by virtue of the fraud 
 is not, in the ordinary sense of the word, a trustee, hut is to he constituted 
 a trustee hy a decree of a court of equity founded on the fraud ; and his 
 possession in the mean time is adverse to the title of the person who 
 impeaches the transaction on the ground of fraud." {fj 
 
 *As the remedy of the cestui que trttst is considered, therefore, r^-o-i-i 
 on the footing of any other equitable right, it may be proper to L J 
 examine briefly how the lapse of time operates generally upon suits for 
 equitable relief. 
 
 To claims in equity there appear to be but three bars : — 1. A statute 
 of limitation ; 2. The presumption of something done which, if done, is 
 subversive of the plaintifi''s right ; 3. The ground of public policy or 
 the inconvenience of the relief. 
 
 1. Where there is a statutable bar at lair, the same period was always 
 by analogy, or rather in obedience to the statute, adopted as a bar in 
 equity. (m\ 
 
 (i) Townshend v. Townshend, 1 B. C. C. 550, see 554 ; Bonney v. Eidgard, 1 
 Cox, 145; Andrew v. Wriglev, 4 B. C. C. 125 ; Lockey v. Lockey, Pr. Ch. 518 ; 
 Collard v. Hare, 2 R. & M. 675 ; and see Cholmondeley v. Clinton, 2 J. & W. 190; 
 S. C. affirmed, 4 Bligh, 4 ; Bell v. Bell, Rep. t. Plunket, 66; Attorney-General v. 
 Fishmongers' Company, 2 Beav. 588 ; affirmed 5 M. & Cr. 16 ; Portlock v. Gardner, 
 1 Hare, 594 ; Ex parte Hasell, 3 Y. & C. 622 ; Wedderburn T. Wedderburn, 4 M. 
 & Cr. 53 ; but see Attorney-General v. Christ's Hospital, 3 M. & K. 344 (the case 
 of a charity). 
 
 (k) Beckford v. Wade, 17 Ves. 97. 
 
 (I) Hovenden v. Lord Annesley, 2 Sch. & Lef. 633. 
 
 (m) See Ex parte Dewdney, 15 Ves. 496 ; Bonney v. Ridgard, 1 Cox. 149; Sfeck- 
 ford V. Wade, 17 Yes. 97 ; Townshend v. Townshend, 1 B. C. C. 554 ; Aggas v.
 
 582 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 The language of Lord Camden upon this subject has been admired as 
 peculiarly energetic. " A court of equity," he said, " which is never 
 active in relief against conscience or public convenience, has always 
 refused its aid to stale demands, where the party has slept upon his right, 
 and acquiesced for a great length of time. Nothing can call forth this 
 court into activity but conscience, good faith, and reasonable diligence. 
 Where these are wanting, the court is passive, and does nothing. Laches 
 and neglect are always discountenanced ; and therefore, from the begin- 
 ning of this jurisdiction, there was always a limitation to suits. But as 
 the court had no legislative authority, it could not properly define the 
 time of bar by a positive ride to an hour, a minute, or a year : it was 
 governed by circumstances. But as often as parliament had limited 
 the time of actions and remedies to a certain period in legal proceedings, 
 the court of chancery adopted that rule, and applied it to similar cases 
 in equity ; for when the legislature had fixed the time at laxc, it would 
 have been preposterous for equity, which, by its own proper authority, 
 r*7<?9n ^^"i^^ys maintained a limitation, to ^countenance laches beyond 
 L -I the period that laio had been confined to by parliament ; and 
 therefore in all cases, where the legal right has been barred by parlia- 
 ment, the equitable right to the same thing has been concluded by the 
 same bar."(n'^ 
 
 Lord Redesdale, in a case before him, said, that "if the equitable title 
 be not sued upon within the time that a legal title of the same nature 
 ought to be sued upon, the court, acting by analogy to the statute, will 
 not relieve. If the party be guilty of such laches in prosecuting his 
 equitable, as would bar him if his title were solely at law, he shall be 
 barred in equity.'Yo) And in a subsequent case his lordship observed, 
 '' it is said that courts of equity are not within the statutes of limitations. 
 This is true in one respect ; they are not within the words of the statutes, 
 because the words apply to particular legal remedies ; but they are within 
 the spirit and meaning of the statutes, and have been always so con- 
 sidered. I think it is a mistake in point of language to say that courts 
 of equity act merely by analogy to the statutes : they act in obedience to 
 them."(2:() And again, " I think the statute must be taken virtually to 
 include courts of equity ; for when the legislature has by statute limited 
 the proceedings at law in certain cases, and provided no express limita- 
 tions for proceedings in equity, it must be taken to have contemplated 
 that equity followed law ; and therefore it must be taken to have virtually 
 enacted in the same cases a limitation for courts of equity also."(^) And 
 the same doctrines have been repeatedly recognized by the highest autho- 
 
 Pickerell, 3 Atk. 225 ; Belch v. Harvey, Appendix to Vend, and Purch. No. xiv. 
 13th ed. ; White v. Ewer, 2 Vent. 340 ; Knowles v. Spence, 1 Eq. Ca. Ab. 315 ; 
 Pearson v.Pully, 1 Ch. Ca. 102 ; Johnson v. Smith, 2 Burr. 961 ; Attorney-General 
 V. Mayor of Exeter, Jac. 448 ; Salter v. Cavanagh, 1 Dru. & Walsh, 668 ; Kingston 
 V. Lorton, 2 Hog. 166 ; Foley v. Hill, 1 Phill. 399'; Hamilton v. Grant, 3 Dow. 44. 
 
 (n) Smith v. Clay, cited in note to Deloraine v. Browne, 3 B. C. C. 639. 
 
 (o) Bond v. Hopkins, 1 Sch. & Lef. 429. 
 
 (p) Hovenden v. Lord Annesley, 2 Sch. & Lef. 630. 
 
 (?) lb. 631 ; and see Marquis of Cholmondeley v. Lord Clinton, 2 J. & W. 192.
 
 REMEDIES OF THE CESTUI QUE TRUST. 583 
 
 rities, amongst wliom may be numbered Lord Manners,(r) Sir T. Plu- 
 mer,(s) and Lord Lyndhurst.(<) 
 
 Upon these principles, then, an equitable claim to lands could never 
 have been preferred after a lapse of twenty years ; *for though to 1-^^33-1 
 writs 0/ right and to formedons much longer periods were allowed L J 
 at law, yet equity always looked upon these as peculiar and excepted 
 cases, and guided itself rather by analogy to the statute of James, which 
 fixed the limitation to the prosecution of rights of entry. {ii) And it may 
 be observed, that although at law the remainderman's right always ran 
 only from the determination of the particular estate, yet, in the case of 
 a bill to redeem filed by the person entitled in remainder to the equity 
 of redemption, twenty years' possession by the mortgagee without account 
 or admission of title, though partly or wholly during the lifetime of the 
 tenant for life, barred the remainderman ; the ground for the distinction 
 apparently being, that the remainderman might file bill to redeem during 
 the continuance of the life estate.(v) But where the mortgagee is also 
 tenant for life of the equity of redemption, the time does not run against 
 the remainderman of the equity of redemption, until his death ;{w) and 
 the same rule applies where the mortgagee is tenant in common with 
 others of the equity of redemption. (a;) 
 
 Where a fine, with proclamations, was levied by a person claiming 
 adversely, though a volunteer, without actual notice or other imputation 
 of fraud, a constructive trust was held to be barred after a lapse of five 
 years. (?/) 
 
 In the case of a statutory bar the limited period afi'ords a substantive 
 insuperable obstacle to the plaintiff's claim, and no plea of poverty, igno- 
 rance, or mistake, can be of any avail. However clear and indisputable 
 the title, could the merits be inquired into, the limited time has elapsed, 
 and the door of justice is closed. (2) If the court could relieve after 
 twenty years on the ground of distress, or any similar plea, so might 
 *it after thirty, forty, or fifty ; there would be no limitation, and py34-| 
 property would be thrown into confusion. (a) 
 
 But no time will cover a fraud so long as it remains concealed : for, 
 until discovery (or at all events until the fraud might with reasonable 
 diligence be discovered,) the title to avoid the transaction does not pro- 
 perly arise. (i) But, after discover^/, the defendant may avail himself of 
 
 (r) Medlicott v. O'Donel, 1 B. & B. 166. 
 
 (s) Marquis of Cholmondeley v. Lord Clinton, 2 J. & W. 151. 
 
 (t) Foley T. Hill, 1 Phil. 405. 
 
 (m) Marquis of Cholmondley v. Lord Clinton, 2 J. & W. 192. 
 
 (v) See Gifford v. Hort, 1 Sch. & Lef. 407 note; Blake v. Foster, 4 Bligh, N. S. 
 140 ; Corbett v. Barker, 1 Anstr. and 3 Anstr. 755 ; Harrison v. HoUins, 1 Sim. & 
 Stu. 471. 
 
 (w) Raffery v. King, 1 Keen, 601, and cases tliere cited ; Burrell v. Lord Egre- 
 mont, 7 Beav. 205. 
 
 (x) Wynne v. Styan, 2 Phil. 303. (y) Bell v. Bell, Rep. t. Plunket, 44. 
 
 (z) Marquis of Cholmondeley V. Lord Clinton, 2 J. & W. 139, per Sir T.Plumer ; 
 Byrne v. Frere, 2 Moll. 171, 178, per Sir A. Hart. But as to mistake, see Brooks- 
 bank V. Smith, 2 Y. & C. 58. 
 
 (a) Hovenden v. Lord Annesley, 2 Seh. & Lef. 640. 
 
 (b) Blair v. Bromley, 2 Phil. 3*54; Cotterell v. Purchase, Cas. t. Talbot, 63, per 
 Lord Talbot; Medlicott v. O'Donel, 1 B. & B. 166, per Lord Manners; Arran v.
 
 584 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 tlie statute, for he lias a right to say, " You shall not bring this matter 
 under discussion at this distance of time; it is entirely your own neglect 
 that you did not do so within the period limited by the statute."(c) 
 
 The defendant may avail himself of the Statute of Limitations, when 
 the bar to the claim appears on the face of the bill, by demurrer :{d) when 
 it does not appear on the bill, by plea ;{e) or the defendant may pray in 
 his answer to have *the same benefit at the hearing as if he had 
 [*735] pjgj^jjg^j ti^g statute ;(/) but, if he neither demur, nor plead, nor 
 pray to have the same benefit as if he had pleaded, he cannot shelter 
 himself under the statute at the time of the hearing ;{g) though it seems 
 the court itself may still, in its own discretion, refuse to grant relief after 
 the limited period. (A) 
 
 Even when the bill charges fraud, the defendant may demur,(/) or 
 plead,(A;) according to the circumstances of the case. If the plaintiff 
 allege that he only discovered the fraud within the period limited by 
 the statute, the defendant must by plea either deny the fraud, or prove 
 that the plaintifi" had knowledge of it. (I) 
 
 2. The court, after great length of time, will i^resume some act to have 
 been done, which, if done, is a bar to the demand.(??i) 
 
 The period at which the court raises the presumption depends upon 
 the circumstances of the case. As a general rule, the court presumes, 
 
 Tyrawly, cited lb. 170; Alden v. Gregory, 2 Ed. 280; Morse v. Royal, 12 Yes. 
 oH, per Lord Erskine ; Bicknell v. Gough, 3 Atk. 558 ; South Sea Company v. 
 Wymondsell, 3 P. W. 143 ; Booth v. Warrington, 4 B. P. C. 163 ; Pickering v. 
 Lord Stamford, 2 Vcs. jun. 280, per Lord Alvanley ; Hovenden v. Lord Anneslej-, 
 2 Sch. & Lef. 634 ; Roche v. O'Brien, 1 B. & B. 330 ; Blennerhassett v. Day, 2 B. 
 & B. 118, per Lord Manners ; Whatton v. Toone, 5 Mad. 54 ; and see Whalley v. 
 Whalley, 1 Mer. 436; Western v. Cartwright, Sel. Cas. Ch. 34. But Sir A. Hart 
 thought time would run against fraud from the date of it, though undiscovered, 
 provided the person entitled had knowledge of the fraud a reasonable time before 
 the expiration of the period. Byrne v. Frere, 2 Moll. 137. 
 
 (c) Hovenden v. Lord Annesley, 2 Sch. & Lef. 634, per Lord Redesdale; Western 
 V. Cartwright, Sel. Ch. Ca. 34; and see Mulcahj v. Kennedy, 1 Ridg. 337. 
 
 {d) Foster v. Hodgson, 19 Ves. 180; Hoare v. Peck, 6 Sim. 51; Beckford v. 
 Close, cited lb. 184 ; Ferguson v. Livingston, 9 Ir. Eq. Rep. 202; Hardy v. Reeves, 
 4 Ves. 479, per Lord Alvanley ; Hodle v. Healey, 1 V. & B. 539 ; Hovenden v. 
 Lord Annesley, 2 Sch. & Lef 637, 638 ; Fyson v. Pole, 3 Y. & C. 266 ; Jenner v. 
 Tracey, cited Cook v. Arnham, 3 P. W. 28''7, note (B) ; Pearson v. Pulley, 1 Ch. 
 Ca. 102 ; Frazer v. Moor, Bunb. 54. But Deloraine v. Browne, 3 B. C' C. 633, 
 and Lord Hardwicke in Aggas v. Pickerell, 3 Atk. 225, contra; and see O'Kelly 
 v. Glenny, 9 Ir. Eq. Rep. 25. 
 
 (e) Aggas V. Pickerell, 3 Atk. 225, and the cases there cited ; Wych v. E. L 
 Company, 3 P. W. 309 ; Lacon v. Lacon, 2 Atk. 395 ; Welford v. Liddel, 2 Ves. 
 400 ; Blewitt v. Thomas, 2 Ves. jun. 669 ; &c. 
 
 (/) Barber v. Barber, 18 Ves. 286 ; &c. 
 
 (g) Earl of Pomfret v. Lord Windsor, 2 Yes. 483, per Lord Hardwicke ; Har- 
 rison V. Borwell, 10 Sim. 382; Prince v. Heylin, 1 Atk. 494, ;j«r eundem; and see 
 Attorney-General v. Christ's Hospital, 3 M. & K. 344. 
 
 {h) Prince v. Heylin, ubi supra. 
 
 (?) See Hovenden v. Lord Annesley, 2 Sch. & Lef. 637, disapproving Lord Delo- 
 raine V. Browne, 3 B. C. C. 633 ; Hoare V. Peck, 6 Sim. 51. 
 
 {k) South Sea Company v. Wymondsell, 3 P. W. 143. 
 
 \l) See Mitford on Pleading, 269, 4th ed. 
 
 (m) Pattison v. Hawkesworth, 10 Beav. 375 ; and see Attorney-General v. Moor, 
 20 Beav. 119.
 
 REMEDIES OF THE CESTUI QUE TRUST. 585 
 
 after a lapse of twenty ycars,(l) but where tliere is a statutable bar at 
 law, and of a different period, tlie court will not entertain a presumption 
 within a less time then the period fixed by the statute. Thus, in a 
 case at law, where an action was brought for the recovery of a quit-rent, 
 no demand of payment having been made for the preceding thirty-seven 
 years. Baron Eyre was of opinion, that ^although the claim was r^yoQ-. 
 not barred by the statute, yet after non-payment and acquiescence L '■" -I 
 of that length of time a release might be presumed, and directed the 
 jury to find the quit-rent extinguished. A new trial was granted, and 
 Lord Mansfield said, " There was no instance of setting up any length 
 of time short of the period fixed by the statute as a bar to the demand, 
 and in cases of quit-rents like the present the reason of carrying back 
 the limitation to the period fixed by the statute, viz. fifty years, was the 
 stronger, because the consideration was so trifling, though, if a real 
 ground for supposing a release or extinguishment appeared, the small- 
 ness of the claim would have no weight; but in this case there was mere 
 length of time, which, barely as such, ought not to be received as a 
 bar."(«) 
 
 Presumptions are made, not necessarily because the court really believes 
 what is presumed, but, in the absence of evidence, for the purpose and 
 from a principle of quieting the possession. (o) Lord Erskine observed, 
 "It is said you cannot presume unless you believe. It is because there 
 are no means of creating belief or disbelief, that such general presump- 
 tions are raised : upon the weakness and infirmity of all human tribunals 
 in judging of matters of antiquity, instead of belief, which must be the 
 foundation of this judgment upon a recent transaction, where the circum- 
 stances are incapable of forming anything like belief, the legal presump- 
 tion holds the place of particular and individual belief."(p) Where 
 positive evidence can be presented to the court, the fact may be presumed 
 after a period much shorter than the usual one. And, on the other 
 hand, though the distance of time may be far greater than the ordinary 
 limit for presumption, yet if there appear any positive evidence to nega- 
 tive the fact, the legal inference cannot be sustained, for the rule is 
 stahit j^rcesumpfio donee prohetur in contrarinm. But the court has 
 judged it better for the ends of justice, that presumptions should be 
 favoured in law, and should not be rebutted by very slight evidence in 
 contradiction.(^) 
 
 *Under the head of presumption, we may notice the subject of p-rgy-i 
 waiver. " As to waiver," said Sir W. Grant, " it is difficult to L J 
 
 {n) Eldridge v. Knott, Cowp. 214. 
 
 (o) Eldridge v. Knott, Cowp. 215, per Lord Mansfield; and see Grenfell v. 
 Girdlestone, 2 Y. & C. 682. 
 
 (jo) Hillary v. Waller, 12 Ves. 266. 
 
 {q) Jones v. Turberville, 2 Ves. jun. 13, per Lord Commissioner Eyre; and see 
 Grenfell v. Girdlestone, 2 Y. & C. 662. 
 
 (1) In Harmood v. Oglander, 6 Ves. 199, 8 Ves. lOG, the bill was filed after a 
 lapse of thirly-two years, yet neither Lord Alvanley nor Lord Eldon considered the 
 length of time to bar the plaintiff's demand ; but in this case the parties were 
 equitable tenants in common, and as between them the presumption of ouster did 
 not arise, or not in an equal degree.
 
 586 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 say precisely what is meant by that term. With reference to the legal 
 effect, a ivaiver is nothing, unless it amount to a release. It is by a 
 release, or something equivalent only, that an equitable demand can be 
 o'iven away. A mere waiver signifies nothing more than an expression 
 of intention not to insist upon the right, which in equiti/ will not with- 
 out consideration bar the right any more than at law an accord without 
 satisfaction would be a plea. If there be a consideration however slight, 
 I do not know that the court would not consider it a sufficient founda- 
 tion for a release, or what is equivalent to a release."(r) And Lord 
 Cottenham appears to have entertained similar views.(s) 
 
 Waiver must not be confounded with acquiescence. Acquiescence, 
 properly so called, is of two kinds : — First, direct, where the act com- 
 plained of was done with a full knowledge and express approbation of 
 another, in which case a court of equity will not allow that other to seek 
 relief against the very transaction to which he was himself a party.(i;) 
 Secondly, indirect, where a person having a right to set aside a transac- 
 tion, stands by and sees another dealing with property in a manner in- 
 consistent with that right, and makes no objection ; in this case, also, 
 a court of equity will not relieve. («j 
 
 The court cannot presiivie a person to have abandoned his right so 
 long as he remains in ignorance of it, or labours under a mistake ;(^v') 
 and the distress of a person, so far as it accounts for his laches, will 
 r*'-Q«-' P^^ tanto weaken the foundation of the *presumption.(ic) So a 
 L J release of right cannot with the same force be presumed against 
 a class of persons, as against an individual ; for it is not likely that a person 
 having only an aliquot share in the property, should pursue his remedy 
 with the same spirit, as if he were the exclusive proprietor, (.t) 
 
 A bar by analogy to a statute may, as we have seen, be taken advan- 
 tage of by demurrer, or plea, or answer ; but a presumption, being the 
 inference of a fact, cannot be made available as a defence by demurrer. 
 
 Thus, in Deloraine v. Browne,(y) the defendant put in for general 
 demurrer, that it appeared by the bill the last transaction sought to be 
 impeached thereby happened twenty-eight years before the filing of the 
 bill, and the plaintiff had shown no cause why he had not sooner insti- 
 
 (r) Stackhouse v. Barnston, 10 Yes. 466. 
 
 (s) Duke of Leeds v. Earl of Amherst, 2 Phill. p. 123 ; but see Roberts v. Tun- 
 stall, 4 Hare, 266, per Vice-Chancellor Wigram. 
 
 (?) See Kent v. Jackson, 14 Bear. 384 ; Styles v. Gu)^, 1 Mac. & Gor. 427; Ex 
 parte Morgan, 1 Hall & Twells, 328 ; Graham v. Birkenhead, &c. Railway Com- 
 pany, 2 Mac. & Gor. 146. 
 
 (m) Duke of Leeds \. Amherst, 2 Phill. 123 ; Phillipson v. Gatty, 7 Hare, 523. 
 
 [v) See Marquis of Cholmondeley v. Lord Clinton, 2 Mer. 362 ; Randall v. 
 Errington, 10 Ves. 427; Roche v. O'Brien, 1 B. & B. 330, see 342 ; Pickering v. 
 Stamford, 2 Ves. jun. 280, and following pages ; S. C. ib. 585 ; Cholmer v. Bradley, 
 1 J. & W. 65, and following pages ; Bennett v. Colley, 2 M. & K. 232 ; Stone v. 
 Godfrey, 5 De Gex, Mac. & Gord. 76. 
 
 [lo) See Roche v. O'Brien, 1 B. & B. 342 ; Hillary v. Waller, 12 Ves. 266; Gow- 
 land V. De Faria, 17 Ves. 25; Byrne v. Frere, 2 Moll. 171, 178. 
 
 (x) See Whichcote v. Lawrence, 3 Ves. 752; Anon, case, cited Lister v. Lister, 
 6 Ves. 632 ; Kidney v. Coussmaker, 12 Ves. 158 ; Hardwick v. Mynd, 1 Anst. 109 ; 
 Attorney-General v. Lord Dudley, Coop. 146; but see Elliot v. Merriman, 2 Atk. 
 42 ; Hercy V. DinwoodT. 2 Ves. iun. 87. 
 
 (y) 3 B. C. C. 633. '
 
 REMEDIES OF THE CESTUI QUE TRUST. 587 
 
 tuted the suit. " The argument," said Lord Thurlow, " must be, not 
 that a positive limitation of time has barred the suit, for that would be 
 a pure question of law, but that from long acquiescence{z^ it should be 
 presumed that the frauds charged did not exist, or that it should be in- 
 tended that the plaintiif had confirmed the transaction, or had released, 
 or submitted upon such consideration as to bar himself from the general 
 equity stated in the bill. This must be an inference of fact, and not an 
 inference of law ; and the demurrer must be overruled, because the de- 
 fendant has no right to avail himself by demurrer of an inference of fact 
 upon matter on which a jury in a court of law would collect matter of 
 fact to decide their verdict if submitted to them, or a court would pro- 
 ceed in the same manner in equity. What limitation of time will bar a 
 suit where there is no positive limitation or under what circumstances 
 the lapse of time ought to have that effect, must depend on the facts 
 of the particular case, and the conclusion must be an inference of fact, 
 *and not an inference of law, and therefore cannot be made on r;>:YQn-i 
 demurrer."(a)(l) '- -^ 
 
 3. Though the plaintiff's demand cannot be met by an absolute bar, 
 and no release of right can he presumed ; yet, thirdly, relief will not be 
 granted where, if administered, it would lead to great jmbh'c or private 
 inconvenience, {h^ 
 
 Thus in a bill for an account against an executor or administrator, 
 who is in equity a trustee, and not reached by any statute of limitation, 
 though the presumption of a final settlement may be rebutted by positive 
 evidence, the court will not open the account at any distance of time, 
 when it is probable most of the parties are dead and the vouchers and 
 receipts are lost.(c) 
 
 Where a suit was prosecuted after a delay of threescore and two years. 
 Lord Keeper Wright said, that " the cause being now within one year 
 of the grand climacteric, it was fit it should be at rest."((Z) But bills 
 have been dismissed at the end of twenty-seven years,(c) and a much 
 shorter period would be a sufficient bar, should the court see a difiiculty 
 in granting the relief: every case must be determined with reference to 
 its own particular circumstances. (/) 
 
 (2) Lord Thurlow evidently means here by this word, mere abstinence from 
 suing, as to which see infra, p. 741. 
 
 (a) See the argument stated in Mitford on Pleading, 212, 4th edit. 
 
 \b) See Attorney-General v. Mayor of Exeter, Jac. 448. 
 
 (c) Hnntou v. Davies, 2 Ch. Re. 44; Huet v. Fletcher, 1 Atk. 467; Pearson v. 
 Belchier, 4 Ves. 627 ; Hercy v. Dinwoody, 2 Yes. jun. 87. 
 
 {(l) St. John V. Turner, 2 Vern. 418. 
 
 {e) Campbell v. Graham, 1 R. & M. 453. 
 
 (/) See Hercy v. Dinwoody, 2 Ves. jun. 93 ; Earl of Pomfret v. Lord "Windsor, 
 2 Ves. 483. 
 
 (1) Lord Thurlow considered the demurrer in this case to turn on presumption, 
 and, on that supposition, it was rightly overruled ; but Lord Redesdale, whose 
 profound knowledge of equity pleading cannot be disputed, afterwards declared 
 his opinion that the defendant's demurrer was good, as stating not matter of f\ict, 
 but what is matter of law, viz : the bar to the plaintiff's demand by analogy, or in 
 obedience to the Statute of Limitations. Hovenden v. Lord Annesley, 2 Sch. & 
 Lef. 637 ; and see Kelly v. Glenny, 9 Jr. Eq. Rep. 25.
 
 588 LEWIN ON THE LA^ OF TRUSTS, ETC. 
 
 In Piekerias v. Lord Stamford (.9) a testator gave the residue of his 
 personal estate ^o a charity, and thirty-five years after his decease, the 
 next of kin filed their bill for an account, *and prayed that such 
 [*740] ^^^^ ^g consisted of money upon mortgage or other real securities, 
 might be declared a void bequest, and distributable, subject to debts, kc, 
 among the testator's next of kin. Lord Alvanley said : " I should be 
 happy to dismiss the bill, if I were authorized by law to say this court 
 would not entertain one after twenty years, every disability to sue being 
 removed. I heartily wish it was so, and see no reason why it should not. 
 It is a fn-ievous thing that the defendants should be disturbed after so 
 Ion*' a lapse. At the same time, / knoic no rule that has established 
 thatraere length of time wiUhar. Therefore, that being the case, I am 
 to say whether, under the circumstances, a bar can be presumed. "(A) 
 And for facilitating the question of presumption, his lordship directed 
 certain previous inquiries by the master ; and it appearing from the re- 
 port, that no release or assignment of their interest by the next of kin 
 for the purposes of the charity could, under the circumstances, be pre- 
 sumed, his lordship then had recourse to the ground of inconvenience. 
 " It does not follow," he said, " that the bill may not be dismissed, 
 though it cannot be pleaded to. The question in all these cases is, whe- 
 ther there are motives of public policy or private inconvenience, to in- 
 duce the court to say, under all the circumstances, the suit ought not to 
 be entertained ; and if great public inconvenience would arise, and the 
 stale demand would involve the parties in endless difficulties in clearing 
 the accounts — difficulties arising from the negligence of the other par- 
 ties in lying by, I very much concur with the principle Lord Cowper 
 lays down in Pooley v. Iiay,(tj that a person, who willingly stands by 
 while the executor pays away money, shall not oblige him to refund, for 
 this would be drawing the executor into a snare. If from the plaintiif's 
 lying by it is impossible for the defendants to render the accounts he 
 calls for, or it will subject them to great inconvenience, he must suffer ; 
 or the court will oppose, what I think the best ground, public conveni- 
 ence. It might have happened, that the trustees, taking possession of 
 the personal estate and not aware of the law, might in the course of so 
 r*"!!! ™^°y years have conducted ^themselves so as not to be able to 
 L -I prove of what the personal estate consisted at the death of the 
 testator. They might have kept such accounts that it would have been 
 impossible to determine whether the plaintiffs could have made any spe- 
 cific demand upon any part of the personal estate. If so, I should have 
 dismissed the bill. If the executors had lost the accounts, I should not 
 have punished them ; for executors are not bound to keep accounts for 
 thirty years. The plaintiffs are so conscious of this, that they do not 
 call on the trustees to account for what has been disbursed before any 
 demand made ; and therefore it is insisted no such inconvenience will 
 arise, as they only desire such an account as can be given, and are 
 willing to take that part of the personal estate that appears to have con- 
 sisted of real securities, and demand no account of interest farther than 
 
 ia) 2 Ves. jun. 272. (h) 2 Yes. jun. 283, 
 
 (0 1 P. W. 355.
 
 REMEDIES OF THE CESTUI QUE TK UST. 589 
 
 from the time of filing the bill. It appears that the trustees, who by 
 their conduct have done themselves great credit, have kept such accounts 
 that there is no difficulty in finding the personal estate at the death of 
 the testator. Then, the only inconvenience will be, that the charity 
 will now cease to have so much. That is certainly to be lamented, but 
 it will not involve any person in difficulties to be attributed to the neglect 
 of the plaintiffs. Therefore, desiring to be understood by no means to 
 give any countenance to these stale demands, but upon the circumstances 
 that there is nothing inducing great public or private inconvenience, 
 that the accounts are found, and that the trustees are not called on to 
 account for what has been disbursed, I am bound to decide in favour 
 of the plaintiffs. "(A-) 
 
 The doctrine laid down by Lord Alvanley in the case referred to, 
 that mere length of time will not bar, requires some cjualification. Lapse 
 of time or delay in suing, unaccounted for by disability or other circum- 
 stances, constitutes in the eye of a court of equity, laches disentitling 
 the plaintiff, in certain classes of cases at least, to relief from the court. 
 Thus where a plaintiflf cestui que t}'u,'it seeks to impeach a purchase by 
 a trustee, a delay of less than twenty years will bar his title to relief. (A 
 So where a plaintifi" seeks to set aside a purchase *from him of a (-^._ ..-,.. 
 reversionary interest,(77i) or to fix a defendant with a constructive L ' "-I 
 trust, (h) or comes to a court of equity alleginga case of fraud as a ground 
 for avoiding the operation of the Statute of Limitations, (o) So where 
 an account is sought by a surviving partner against the estate of a deceas- 
 ed partner, the court, even assuming such case to fall within the excep- 
 tion as to merchants' accounts in the Statute of Limitations, will not 
 assist after a delay of thirteen years. (j)') And where the assistance of the 
 court is sought in a suit for specific performance, (g^) or in one partaking 
 of that character, (?•) the rule is extremely strict. It is difficult to refer 
 the refusal of relief by the court in the instances mentioned, to any one 
 general principle. In the cases of purchases by trustees, or of claims 
 founded upon constructive trust the probability of alteration of circumstan- 
 ces in regard to the property, and the unfairness of the plaintiff lying by, 
 have weighed with the court. Perhaps, the nearest approach to general 
 principle will be found under the head of <• Public Convenience;'' 
 ^^ Expedit RepuhliccB ut sit Jinis litium." 
 
 It has been pointed out that in certain cases a delay of less than twenty 
 years operates as a bar ; and the court in these instances departs still 
 further from the analogy offered by the Statute of Limitations, by taking 
 into account partly time which may have elapsed while the plaintifTs 
 interest was reversionary. (s) The question remains, whether laches can 
 
 {k) 2 Yes. jun. 582, and following pages. 
 (l) See the cases collected, pp. 470, 471, supra. 
 {m) Roberts v. Tunstall, 4 Hare, 257. 
 
 (n) Clegg V. Edmondson, 3 Jur. X. S. 299 ; and see Pennell v. Home, 3 Drewry 
 337. 
 
 (o) Blair v. Ormond, 1 De Gex & Sm. 428. 
 
 (p) Tatam v. Williams, 3 Hare, 347. 
 
 (g) Southcomb v. Bishop of Exeter, 6 Hare, 213. 
 
 (r) Hope V. Corporation of Gloucester, 1 Jur. N. S. 320. 
 
 (s) Roberts v. Tunstall, 4 Hare, 266; and see Browne v. Cross, 14 Beav. 105 
 
 April, 1857.— 38
 
 590 LEWIN ox THE LAAV OF TRUSTS, ETC. 
 
 ia general be relied upon as a bar to a mere dry equitable demand falling 
 within the purview of some or one or the Statutes of Limitations ; and 
 if, as suggested, public convenience be the true ground for holding 
 laches to be a bar, then it would seem that the legislature itself having 
 prescribed a term of limitation which it deems sufficiently short, the 
 court ought not further to abridge that term. Accordingly, we find the 
 *present lord chancellor expressing himself to the effect, " that 
 [*743J ^^^ simple abstaining from legal proceeding is unimportant, unless 
 the party aggrieved continues inactive so long as to bring the case within 
 the purview of the Statute of Limitations -"{t) and Lord Langdale,(zt) and 
 Lord Cottenham,(v) appear to have entertained the same views. 
 
 We may now introduce the late act for the limitation of actions and 
 suits. (-^fj) 
 
 By the 24th section it is declared, that " no person claiming any land 
 or rent in equity shall bring any suit to recover the same, but within the 
 period during which by virtue of the provisions thereinbefore contained 
 he might have made an entry or distress, or brought an action to recover 
 the same respectively, if he had been entitled at law to such estate, inte- 
 rest, or right in or to the same as he shall claim therein in equity." 
 
 The 25th section declares, that, " when any land or rent shall be vested 
 in a trustee upon any express trust, the right of the cestui que trust, or 
 any person claiming through him, to bring a suit against the trustee, or 
 any person claiming through him, to recover such land or rent, shall be 
 deemed to have first accrued, according to the meaning of the act, at, 
 and 7iot before, the time at icliich such land or rent shall have Leen con- 
 veyed to a purchaser /or valuable consideration, and shall then be deemed 
 to have accrued only as against such purchaser, and any person claiming 
 through him." 
 
 The 26th section declares, that " in every case of a concealed fraud 
 the right of any person to bring a suit in equity for the recovery of any 
 laud or rent of which he, or any person through whom he claims, may 
 have been deprived by such fraud, shall be deemed to have first accrued 
 at, and not before, the time at which such fraud shall, or with reasonable 
 diligence might, have been first known or discovered." 
 
 By the 27th section it is provided, that " nothing in the act contained 
 r*~4.4.1 ^^^^^ ^® deemed to interfere with any rule or jurisdiction *of 
 L -I courts of equity in refusing relief on the ground of acquiescence 
 or otherwise, to any person whose right to bring a suit might not be 
 barred by virtue of that act." 
 
 The 40th section declares that no action or suit or other proceeding 
 shall be brought to recover any sum of money charged upon land at law 
 or in equity or any legacy, (^x) but within twenty years from the accruer 
 of the right, unless there has been part payment of principal or interest, 
 or some acknowledgment. 
 
 (t) Rochdale Canal Company v. King, 2 Sim. N. S. 89. 
 [u) Mehrtens v. Andrews, 3 Beav. 16. 
 
 [v) Duke of Leeds v. Earl of Amherst, 2 Phil. 126. («■) 3 & 4 W. 4, c. 27. 
 
 (x) The word leffaci/ includes a residue or share of residue ; Prior v. Horniblow, 
 2 Y. & C. 201 ; Christian v. Devereux, 12 Sim. 264.
 
 REMEDIES OF THE CESTUI QUE TRUST. 591 
 
 And the 42nd section enacts, that no arrears of rent or of interest in 
 respect of any sum of money charged vpon, or payable out of, any land 
 or rent, shall be recovered by any action or suit, but within six years 
 next after the same shall have become due, or after an acknowledgment 
 of the same in writing shall have been given to the person entitled thereto 
 or his agent, signed by the person by whom the same is payable or his 
 agent. 
 
 Thus twenty years' possession is now a statutory bar to suits in equity 
 in respect of equitable interest, as well as to actions at law upon legal 
 rights ; but in case of disability a term of ten years is allowed by the 
 16th section next after the cesser of the disability, but by the 17th sec- 
 tion no suit can be brought after the lapse of forty years from the accruer 
 of the right to sue, whatever disabilities may have existed. 
 
 As it is the nature of a trust that the legal estate should be in one 
 person and the equitable interest (which may or may not carry the right 
 of possession) in another, it is obvious that mere possession would not 
 be a fair criterion by which to regulate the equitable estate. On the 
 one hand, the possession of the trustee may be according to the title and 
 should not prejudice the cestui que trust; and on the other hand, the 
 cestui que trust, when let into possession, is tenant at will to the trustee, 
 who ought not, therefore, to be ousted by an act in the due execution of 
 the trust. The statute, therefore, has declared by the 25th section that, 
 as between the trustee and any person claiming through him, and the 
 cestui que trust *and any person claiming through him, time shall r^-jtr-^ 
 not run until there has been a conveyance to a purchaser for L J 
 valuable consideration. The trust estate may, therefore, be followed by 
 the cestui que trust, not only as against the trustee, but as against all 
 volunteers claiming under him ;(^) but so soon as the estate is conveyed 
 to a purchaser for valuable consideration, as if it be made the subject of 
 a marriage settlement, the time begins to run. (2) No possession by a 
 purchaser for valuable consideration, short of twenty years, will be a 
 bar.(a) And if the cestui que trust be a remainderman, the time it seems 
 will not run until the remainder falls into possession. (ij 
 
 The 25th section applies only to express trusts ; it is, therefore, neces- 
 sary to ascertain with precision what is meant by the phrase. Trusts, as 
 regards the provisions of the statute, may be considered as divided into 
 express trusts and constructive trusts ; the former arising upon the lan- 
 guage of some written instrument, and the latter such as are elicited by 
 the principles of a court of equity from the acts of parties. 
 
 It is not necessary to use the word trust in order to create an express 
 trust,(c) but any language that would in equity raise or imply a trust will 
 be deemed an express trust. If, therefore, land be devised to a person 
 
 (y) Heenan v. Berry, 2 Jon. & Lat. 303 ; Salter v. Cavanagh, 1 Dru. & Walsh, 
 668 ; Blair v. Nugent, 3 Jon. & Lat. 658 ; 9 Jr. Eq. Rep. 400 ; Ravenscroft v. Frisby, 
 2 Coll. 16; and see Dixon v. Gayfere, 17 Beav. 421 ; Hawksbee v. Hawksbee, 11 
 Hare, 230. 
 
 (z) Petre v. Petre, 1 Drewry, 3'i'l. {a) Attorney-General v. Flint, 4 Hare, 147. 
 
 (6) Thompson v. Simpson, 1 Dru. & War. 489 ; Attorney-General v. Magdalen 
 College, 18 Beav. pp. 239, 250. 
 
 (c) Charitable Donations v. Wybrants, 2 Jon. & Lat. 197.
 
 592 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 upon trust to receive the rents and thereout to pay certain arrears, the 
 surplus rents result to the heir-at-law upon the face of the instrument, 
 and this being an express trust, the heir-at-law is not barred by twenty 
 years' possession by the trustee (d) p n • 
 
 *But trusts arising by the construction of a court ot equity 
 [*746] ^^^^ ^j^p j^^^ Qf parties, will not be saved by the clause relating 
 to express trusts, as if the devisee for life of a leasehold estate renew in 
 his own name, the statute will begin to run from the time of the re- 
 newal. (e) , , - . . „ 
 
 Mere charges might have been held to fall under the description ot 
 express trusts, but that they are dealt with by the statute under a separate 
 section, viz., the 40th ; a circumstance which shows that they were meant 
 to be distinguished from express trusts. If, therefore, an estate be 
 devised to A., charged with 1000?. in favour of B., or " X. paying 1000?. 
 to B., although a bill will lie in equity to have the sum raised on the 
 footing of a trust, yet it is not an express trust within the meaning of 
 the statute, and would, therefore, be barred at the end of twenty years. (/) 
 
 But a charge in form may be an express trust in fact, if the grantee 
 or devisee be invested with any fiduciary character, as if an estate in 
 Ireland be devised to A., subject to a rent-charge for the maintenance of 
 a schoolmaster to be appointed ; here no trustee is interposed between 
 the devisee and the intended recipient, and the trust, therefore, fastens 
 itself on the conscience of the devisee. (,5^) So, if an estate be devised to 
 trustees and their heirs, upon trust to convey to J. W. for life charged 
 with annuities to certain corporations for charitable purposes. Here, 
 although the corporations are interposed as trustees, yet, as the devisees 
 are bound to execute a settlement, so as to secure the annuities and retain 
 the legal estate in the meantime they are, until the settlement has been 
 executed, trustees for the charity.(A) So, though a simple charge of the 
 testator's debts falls within the 40th section, and the creditor is barred 
 after twenty years, (i) yet, if the will be so worded as to impose on the 
 devisees subject to *the charge the personal obligation of exert- 
 L * J ing themselves actively in paying the debts, it becomes an express 
 trust and falls within the exception of the 2.5th section. (/1-) 
 
 A charge upon an estate may at the same time be a mere charge within 
 the 40th section, as between some parties, while it is an express trust 
 within the 25th section, as between other parties. If, for instance, an 
 
 {(l) Salter v. Cavanagh, 1 Dru. & Walsh, 6G8 ; and see Charitable Donations v. 
 Wybrants, 2 Jon. & Lat. 196, 7 Ir. Eq. Rep. 580. In Lord St. John v. Boughtou, 
 9 Sim. 223, where was an express trust to sell and pay debts, the V. C. of England 
 held that as no part of the produce of the sale had been set apart for debts, the 
 case was not within the exception of the 25th sect., but fell under the 40th sect. 
 This, it is conceived, cannot be maintained. 
 
 (e) Petre v. Petre, 1 Drewry, 371. 
 
 (/) Knox V. Kelly, 6 Ir. Eq. Rep. 279 ; Toft v. Stephenson, 7 Hare, 1 ; Hodge 
 V. Churchward, 16 Sim. 71 ; Francis v. Grover, 5 Hare, 39; Hughes v. Kelly, 3 
 Dru. & War. 482 ; and see Harrison v. Duignan, 2 Drur. & War. 295. 
 
 (g) Attorney-General v. Persse, 2 Dru. & War. 67. 
 
 {h) Charitable Donations v. Wybrants, 2 Jon. & Lat. 182, 7 Ir. Eq. Rep. 580. 
 
 (i) Dundas v. Blake, 11 Ir. Eq. Rep. 138, and cases there cited. 
 
 [k) Hunt V. Bateraan, 10 Ir. Eq. Rep. 360, and cases there cited.
 
 REMEDIES OF THE CESTUI QUE TRUST. 593 
 
 estate be devised to A. and liis heirs, subject to a charge of 500?. to B. 
 and C. upon certain trusts, here, as between A. and the two trustees, it 
 is a mere charge and will be barred in twenty years, but, as between the 
 two trustees and their ccstnis; que trust, it is an express trust and the 
 time of the bar as to them will be extended accordingly. And if a term 
 be limited to trustees for the purpose of securing the charge, the rights 
 of the cest%ds que trust will not be barred so long as the term vested in 
 their trustees remains unbarred. (/) 
 
 To make the 40th section operate as a bar there must be a hand to 
 receive, and capable of signing a receipt, as if 400/. be charged on an 
 estate, and by the same deed it is assigned to trustees upon trust for A. 
 and B. for their lives, and after the death of the survivor for their chil- 
 dren, but no power of signing receipts is given to the trustees, and, on 
 the contrary the court collects the intention that the trustees were not to 
 raise the money till after the death of the surviving tenant for life, the 
 statute will not begin to run until the latter period. (??i) 
 
 It will be observed that, by the 25th section, the cestui qtie trust and 
 any person claiming through him maj' enforce the trust against the trus- 
 tee and any person claiming through him, but both trustee and cestui 
 que trust may be ousted by the intrusion of a third title, and if so, the 
 statute will begin to run from the dispossession of the trustee and cestui 
 que trust. Thus, in 1810, a legal estate was vested in trustees upon 
 trust for five tenants in common, but from that time till the filing of the 
 bill in 1842, four of the tenants in common received the rents to the 
 ^exclusion of their co-tenant and of the trustees who never exe- r-i(yj\cr\ 
 cuted their duty ; and it was held that there had been an ouster L J 
 of both trustees and cestui que trust, and that the right of such cestui 
 que trust was barred by the statute. (?«] 
 
 But possession by one cestui que trust, where it is according to the 
 title (even where a trustee might at any time, and in the strict discharge 
 of his duty ought to, have taken possession,) will not give a title to the 
 cestui que trust in possession to the ouster of the trustee and the other 
 cestuis que trust who claim under him, otherwise the most mischievous 
 consequences would follow from the statute. (0) In these cases the ces- 
 tui que trust in possession is the tenant at will of the trustees, and until 
 that will is determined, the possession of the cestiii que trust is the pos- 
 session of the trustee. (^>) But the doctrine that a cestui que trust, who 
 is in possession with the consent or acquiescence of the trustee, must be 
 
 [l) Young V. Lord Waterpark, 13 Sim. 202, on appeal, 15 L. J. N. S. Ch. 63 ; 
 and see Ward v. Arch, 12 Sim. 472. 
 
 {m) M'Carthy v. Daunt, 11 Jr. Eq. Rep. 29. Assuming tliat the trustees could 
 not sign a receipt, the decision was right ; but it was a bold step to say that the 
 trustees had not such a power. 
 
 [n) Burroughs v. M'Creight, 1 Jon. & Lat. 290, T Ir. Eq. Rep. 49; Charitable 
 Donations v. Wybrants, 2 Jon. & Lat. 198 ; 7 Ir. Eq. Rep. 580 ; Law v. Bagwell, 
 4 Dru. & War. 409. 
 
 (0) Young V. Lord Waterpark, 13 Sim. 202. On appeal, 15 L. J. N. S. Ch. 63; 
 Cox V. Dolman, 2 De G. M. & G. 592. 
 
 (p) Garrard v. Tuck, 8 Com. B. Rep. 231 ; 13 Jur. 871 ; and see Doe v. Phillips, 
 10 Q. B. Rep. 130, which is not at variance with Garrard v. Tuck, as in the former 
 case the tenancy at will had not been determined.
 
 594 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 regarded as his tenant at will, does not prevent a third party who obtains 
 possession from the ceshii qve trust, and holds for twenty years without 
 payment of rent or acknowledgment of title to either cestui que trust or 
 trustee, from setting up the statute as a bar ; or at all events, the third 
 party may plead the statute where the cestui que trust was never in 
 actual occupation. (g') 
 
 The 42nd section of the act, limiting the recovery of arrears of rent 
 or interest to the last sis years only, has no application to cases of ex- 
 press trusts within the 25th section, but the cestui que trust may recover 
 from his trustee the whole arrearages from the commencement of the 
 title.(y) And under the 42nd section, as under the 40th, where there 
 is a subsisting term not *barred, upon which the trustee may 
 L' ''*'^J obtain possession, the whole arrearages may be recovered.(s) 
 
 Thus, in Cox v. Dolman, (A a testator devised his lands to the use of 
 trustees for ninety-nine years upon trust to pay certain annuities, and 
 subject thereto to the use of J. Cox for life, with remainder over ; and 
 after the death of S. Cox, one of the annuitants filed a bill to have the 
 arrears of the annuity raised out of the estate. The executors of S. Cox 
 pleaded the statute as a bar to more than six years' arrears, but the 
 court held that it was the case of an express trust, and that the tenant 
 for life had taken possession subject to the trust, and that the term was 
 a subsisting one, upon which the trustees might at any time have 
 recovered, and the plaintiff was declared entitled to the whole arrears, 
 which were to be paid out of the assets of the tenant for life up to the 
 day of his death, and since his death by the remainderman. The direct 
 remedy was, no doubt, to have the whole arrears raised by sale or mort- 
 sasie of the term, but as the remainderman would be entitled to recover 
 the arrears that accrued in the lifetime of the tenant for life from his 
 estate, the court, to avoid circuity, decreed payment at once out of the 
 tenant for life's assets. 
 
 The case of charities requires a separate consideration. It was at first 
 doubted whether they were at all affected by the statute ;(?<) but it was 
 afterwards held that they were within the operation of the act, though 
 they would generally be protected by the 25th section, relating to express 
 trusts. (2;) If, however, the principles for the first time laid down by the 
 master of the rolls in Attorney-General v. Magdalen College, (u') be 
 recognized by the other courts, it will be difficult to find a case in which 
 the rights of the charity can be barred. 
 
 The rents of certain premises in South wark had been applied for more 
 than a year by the rector and churchwardens of St. Olave for the benefit 
 r*7'sm ^^ ^^^ P°*^^ ^^ ^^^^ parish. In 1790, the *rector and church- 
 ■- J wardens, and two inhabitants, by a feoffment with livery of seisin 
 
 (3) Melling v. Leak, 16 Com. B. Rep. 652. 
 
 M Playfair v. Cooper, 17 Beav. 187 ; Gough v. Bult, 16 Sim. 323. 
 (s) Cox V. Dolman, 2 De Gex, Mac. & Gord. 592 ; Snow v. Booth,. 2 K. & J. 132 ; 
 Earl of Mansfield v. Ogle, 1 Jur. N. S. 414. (t) 2 De G. M. & G. 592, 
 
 (m) Incorporated Society v. Richards, 1 Dru. & War. 287, 288. 
 (v) Charitable Donations v. Wybrants, 2 Jones and Lat. 182 ; 7 Ir. Eq. Rep. 580. 
 (w) 18 Beav. 223; Attorney-General v. Magdalen College, has been reversed in
 
 REMEDIES OF THE CESTUI QUE TRUST. 595 
 
 and a fine, conveyed the premises to Morden College, in consideration ot 
 a rent-charge reserved. In 1852, an information was filed by the 
 attorney-general to set aside the conveyance, and the questions eventually 
 resolved themselves into the eff'ect of the Statute of Limitations. Under 
 these circumstances it was ruled by the master of the rolls : 1st, that as 
 no legal estate appeared to have been vested in the rector and church- 
 wardens and two inhabitants, the conveyance of 1790 was a disseisin, 
 and not a conveyance by the trustees within the 25th section ; 2nd, that 
 trustees of a charity who make a conveyance are barred after twenty 
 years, but that the cestuis que trust have an independent right to sue, as 
 to which, time does not begin to run until there is some cestui que trust 
 who is capable of suing •,(x) Srdly, that the attorney-general, as he had 
 no legal or beneficial interest in the property, was not such a person a< 
 could sue, within the meaning of the 25th section ; 4thly, that the 
 rector and churchwardens, who in this case had no legal or beneficial 
 interest, were not such persons within the meaning of the act ; 5thly, 
 that the poor of the parish were not such persons, inasmuch as they 
 could not institute a suit on their own behalf, but an information must 
 be filed in the name of the attorney-general ; and, under these circum- 
 stances, the court set aside the conveyance, and directed it to be can- 
 celled. The cestuis que trust of a charity are, from the nature of the case, 
 not in a position to litigate with their wealthy neighbours, and as an infor- 
 mation in the name of the attorney-general, who alone can sue, must in 
 general be at the relation of other parties, who should be liable for costs, 
 there can be no doubt that charities would greatly sufi'er if they were 
 bound by the same lapse of time as in the case of private persons. It is 
 not unlikely, therefore, that the doctrines thus broadly laid down by the 
 master of the rolls may be followed by other judges. 
 
 III. We shall briefly notice to what extent a court of equity, upon 
 recovery of the estate, will direct an account against the defendant of the 
 mesne rents and profits. 
 
 *The general rule is, that a cestui que trust, by establishing r*Tr-|-i 
 his claim to the land, has thereby established a right to the mesne L J 
 rents and profits from the very commencement of his title ; for if the 
 corpus of the estate was his, the rents and profits, which ought to follow 
 the corpus, were tortiously intercepted by the wrongful possessor. (.y) 
 
 But to the above rule several exceptions must be made : for, — 
 
 1. It would seem the cestui que trust cannot enforce an account beyond 
 the period of the preceding six years ; provided, at least, the defendant 
 has pleaded the Statute of Limitations in bar.(^) 
 
 {x) Attorney-General v. Pearce, 2 Dru. & War. 57. 
 
 {y) Dormer v. Fortescue, Ridg. Rep. t. Hardwicke, 183; S. C. 3 Atk. 130, per 
 Lord Hardwicke ; Hobson v. Trevor, 2 P. W. 191 ; Coventry v. Hall, 2 Ch. Ca. 134 ; 
 Attorney-General v. Floyer, 2 Vern. 748 ; Duke of Norfolk's case, 3 Ch. Ca. 52 ; 
 Stackpole v. Davoren, 1 B. P. C. 9 ; and see Turner v. Buck, 22 Vin. Ab. 21. In 
 Thomas v. Thomas, 2 K. & J. 70, Vice-Chancellor Wood appears to have considered 
 the rule to be to give an account from the date only of tiling the bill. 
 
 {z) Love v. Bade, Rep. t. Finch, 269; Reade v. Reade, 5 Ves. 749, 750; Har- 
 mood V. Oglander, 6 Ves. 215; Drummond v. Duke of St. Albans, 5 Ves. 439 ; 
 Hercy v. Ballard, 4 B. C. C. 4G8; Stackhouse v. Barnston, 10 Ves. 470 : Money- 
 penny v. Bristow, 2 R. & M. 125.
 
 596 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 2. If the defendant was a bona fide possessor, that is, if he had no 
 notice of the plaintiff's title expressly given him, and had no deeds or 
 writings in his custody which showed the title of the plaintiff or any 
 stranger, in such case the account of the mesne rents and profits will 
 be restricted to the time of filing the bill ;(o) and no further account 
 will be o-ranted, though the plaintiff was an infant, and the defendant 
 an express trustee, but ignorant of his own true character.(6) How- 
 ever, such rents and profits as accrued before the filing of the bill, 
 but never came to the hands of the defendant, as money paid into court, 
 will follow the right to the land, and be decreed to the plaintiff. (c) 
 
 3. If the cestui que trust be guilty of laches, the account will not be 
 P^-p.^, carried further back than to the filing of the bill, for it *was the 
 L -I plaintiff's own fault that he did not institute his suit at an earlier 
 period ;(<'Z) and if it be a case o? great laches, the court will show its dis- 
 pleasure by not directing an account beyond the date of the decree. (e) 
 
 In an old case, a cestui que trust had filed his bill for an estate upon 
 the ground of an equitable title, and charged the defendant with the 
 receipt of the mesne rents and profits, but prayed only for a conveyance 
 of the lands, omitting to pray specially for any account of the rents. A 
 conveyance was decreed, and no account ordered; but afterwards the 
 cestui que trust filed a second bill for the exclusive purpose of obtaining 
 an account of the mesne rents and profits, and the court so decreed it.(/) 
 
 The order to account for mesne rents and profits will not, except in a 
 case of gross fraud, (^) contain the words, " which, without neglect or 
 default, the defendant might have received," and a direction to make 
 all just allowances in taking the account will be inserted. (A) 
 
 The assignee who has had the perception of the rents and profits, will, 
 in the first instance, account for them, not, however, with interest. (<") 
 But if the assignee be insolvent, the trustee who tortiously assigned will 
 then be answerable for the mesne rents and profits personally. (/i;)(l) 
 
 {a) Dormer v. Fortescue, Ridg. Rep. t. Hardwicke, 183 ; S. C. 3 Atk. 134, per 
 Lord Hardwicke ; Pulteney v. Warren, 6 Ves. 93, per Lord Eldon ; Edwards v. 
 Morgan, M'CleL 541, see 554, 555 ; Forder v. Wade, 4 B. C. C. 521. 
 
 (6) Drummond v. Duke of St. Albans, 5 Ves. 433, see 439. (c) S. C. 
 
 (d) Dormer v. Fortescue, Ridg. Rep. t. Hardwicke, 183; S. C. 3 Atk. 130, per 
 Lord Hardwicke; Cook v. Arnham, 2 Eq. Ca. Ab. 235 ; Pettiward v. Prescott, 7 
 Ves. 541 ; Bowes v. East Loudon Waterworks' Company, 3 Mad. 375 ; and see 
 Pickett V. Loggou, 14 Ves. 215 ; Kidney v. Coussmaker, 12 Ves; 158; Schroder v. 
 Schroder, Kay, 591. 
 
 (e) Acherley v. Roe, 5 Ves. 565. (/) Hall v. Coventry, 2 Ch. Ca. 134. 
 {g) Stackpole v. Davoren, 1 B. P. C. 9. (/;) Howell v. Howell, 2 M. & C. 478. 
 (i) Macartney v. Blackwood, Ridg. Lapp. & Sob. 602. 
 
 [k) Vandebende v. Livingston, 3 Sw. 625. 
 
 (1) As the subject of accounting for mesne rents and profits in equity is nowhere 
 to be found in any systematic form, the following remarks may perhaps be found 
 useful. 
 
 An account of rents and profits may be sought, either independently of relief 
 respecting the corpus of the land, or as incident or collateral to it. 
 
 I. Where the account is sought independently of other relief, if it be directed 
 against a person who is an express trustee, then, as the statutes of limitation do not 
 run between trustee and cestui que trust, an account will be directed from the time
 
 REMEDIES OF THE CESTUI QUE TRUST. 597 
 
 *SECTION II. [*753] 
 
 THE RIGHT OF ATTACHING THE PROPERTY INTO WHICH THE TRUST 
 ESTATE HAS WRONGFULLY BEEN CONVERTED. 
 
 If the trust estate has been tortiously disposed of by the trustee, the 
 
 the rents were withdrawn. See Attorney-General v. Brewers' Company, I Met. 
 498; Mathew v. Brise, 14 Beav. 341. 
 
 If the claim to the rents rest upon a legal title, the plaintifiF has then a legal re- 
 medy, and cannot come into a court of equity at all ; Jesus College v. Bloom, 3 
 Atk. 262; and see Dinwiddle v. Bailey, G Yes. 136; Taylor v. Crompton, Bunb. 
 95; Lansdowne v. Lausdowne, 1 Mad. 137 ; except in cases where, from the com- 
 plicated nature of the accounts, or other particular circumstances, a court of law 
 would afford very inadequate relief; see O'Gonner v Spaight, I Sch. & Lef. 309 ; 
 Corporation of Carlisle v. Wilson, 13 Ves. 2T6. But an infant may file a bill for 
 an account upon a legal title ; Gardiner v. Fell, I J. & W. 22 ; Roberdeau v. Rous, 
 1 Atk. 543 ; Yallop v. Holworthy, I Eq. Ca. Ab. 7 ; Newburgh t. Bickerstaffe, I 
 Yern. 295; Curtis v. Curtis, 2 B. C. C. 631, per Cur.; as every person entering 
 upon an infant's lands is regarded in the light of a bailiff or receiver for the infant ; 
 Dormer v. Fortescue, 3 Atk. 130, per Lord Hardwicke ; Pulteney v. W^arren, 6 Yes. 
 89, per Lord Eldon ; Morgan v. Morgan, 1 Atk. 489 ; Lord Falkland v. Bertie, 2 
 Yern. 342, per Cur. ; Doe v. Keen, 7 T. R. 390, per Lord Kenyon ; Hicks v. Sallitt, 
 3 De G. M. & G. 782. And the jurisdiction against a person entering during the 
 infant's minority remains, though the bill be not filed until after the infant attains 
 21; Blomfield v. Eyre, 8 Beav. 250; Hicks v. Sallitt, ubi supra. And generally 
 all persons may have an account upon a legal title in respect of mines, which are 
 a species of trade; Bishop of Winchester v. Knight, 1 P. W. 406; and see Pul- 
 teney v. Warren, 6 Yes. 89; Lansdowne v. Lansdowne, 1 Mad. 116; Parrott v. 
 Palmer. 3 M. & K. 632; or of tithes, which when severed are property in trust; 
 Collins v. Archer, 1 R. & M. 284, &c. ; but not it seems of tiviber, without praying 
 an injunction ; Jesus College v. Bloom, 3 Atk. 262 ; and see Poulteney v. W^arren, 
 6 Yes. 89; University of Oxford v. Richardson, lb. 701 ; Grierson v. Eyre, 9 Yes. 
 346; but see Garth v. Cotton, 1 Dick. 211 ; Lee v. Alston, 1 B. C. C. 194. 
 
 Although where a remedy lies at law an account cannot be had in equity against 
 iht pernor of the profits himself, yet, perhaps, after his decease, if the action sur- 
 vive at law against the executor, the party entitled to the profits may consider 
 himself a creditor, and file a bill in equity for an account of the assets. Mony- 
 penny v. Bristow, 2 R. & M. 117, (but the bill also prayed delivery of title deeds;) 
 Gardiner v. Fell, 1 J. & W. 22, (but the plaintiff was also an infivnt.) 
 
 Where, as in the preceding cases, a court of equity assumes a concurrent juris- 
 diction with courts of law, the account will not be extended beyond the legal 
 limit of six years, provided the statute be pleaded, Lockey v. Lockey, Pr. Ch. 518 : 
 but if the defendant do not avail himself of the statute by demurrer, plea, or 
 answer (see Monypenny v. Bristow, 2 R. & M. 125,) or if the plaintiff be an infant 
 who is exempted from the Statute of Limitations, Hicks v. Sallitt, 3 De G. M. & G. 
 782, the account will be granted in equity, as at law from the time the title ac- 
 crued. 
 
 It often happens that a legal remedy did exist, but has since, by the death of a 
 party, or the determination of the estate, become extinguished. In such a case, 
 as the right was not, but only is, without a remedy at law, there seems no ground 
 in general for the interference of a court of equity. Barnwall v. Barn wall, 3 Ridg. 
 P. C. 71, per Lord Fitzgibbon ; Hutton v. Simpson, 2 Yern. 722 ; Norton v. Frecker, 
 1 Atk. 525, 526, per Lord Hardwicke ; and see Pulteney v. Warren, 6 Yes. 88. 
 
 But if the remedy was lost through mistake, the court upon that principle will 
 interpose: as where a lease was held for the lives of A. and his two daughters B. 
 and C, and A. afterwards married again, and had another daughter, who was also 
 named B., and the landlord on the expiration of the lease by the death of the real 
 cestui que vie, did not enter, B. the daughter by the second marriage being mistaken 
 for B. the life named in the lease. Lord Macclesfield said, " Where one has title of 
 entry, and neglects to enter or to bring his ejectment, but sleeps upon it for several
 
 598 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 ceshii que trust may attach and follow, so long as it can be traced, the 
 property that has been substituted in the place of the trust estate. 
 
 years as he has no remedy at law for the mesne profits, so neither has he in equity, for 
 it was his own fault he did not enter, and he shall never come into a court of equity 
 for relief against his own negligence, or to make the tenant in possession who held 
 over his lease to be but his bailifi" or steward, whether he will or not; but in the 
 present case, by reason of the circumstance of both daughters being of the same name, 
 and the mistake consequent thereon, the defendant must account for the mesne profits 
 from the expiration of the lease." Duke of Bolton v. Deane, Pr. Ch. 516. (Note, 
 in this case Lord Hardwicke thought a remedy still existed at law. Dormer v. For- 
 tescue Ridg. Rep. t. Hardwicke : but Lord Macclesfield was evidently of a different 
 opinion, and' so was Lord Fitzgibbon. Barnwall v. Barnwall, 3 Ridg. P. C. G8.) 
 
 So equity will relieve where the remedy was prevented hj fraud: as where A. 
 was entitled to a leasehold estate, but B., concealing the deeds, remained in pos- 
 session until the term had expired, Lord King directed an account of the rents and 
 profits from the time that A.'s title accrued, on the ground that A. had been kept 
 in ignorance of his just rights through B.'s fraudulent concealment of the deed 
 and counterpart. Bennet v. Whitehead, 2 P. W. 644 ; and see Duke of Bolton v. 
 Deane, Pr. Ch. 516, and Barnwall v. Barnwall, 3 Ridg. P. C. 66. 
 
 And generally the court will in all cases lend its aid where the legal process has 
 been lost, not by any delay on the part of the plaintiff, but through some default 
 of the defendant. Pulteney v. Warren, 6 Ves. 73. 
 
 IL An account may be sought as incident or collateral to the relief. The doc- 
 trines upon this subject have been very distinctly laid down by Lord Fitzgibbon, 
 afterwards Lord Clare, in Barnwall v. Barnwall, 3 Ridg. P. C. 66. 
 
 1. "The general rule of equity," he said, "is, that if the suit for recovery of 
 possession be properly cognizable in a court of equity, and the plaintiff obtain 
 a decree, the court will direct an account of rents and profits, as incident to such 
 relief." 
 
 This rule has been treated of in the text, and requires no further observation. 
 
 2. " If a man have a mere legal title to the possession, he has no right to come 
 into equity for the recovery of it; and if he has originally recovered the posses- 
 sion at law, he has no manner of right to proceed by bill for an account of rents 
 and profits: as his title to the possession was at law, he must proceed for the 
 whole there." See also Dormer v. Fortescue, 3 Atk. 130 ; Tilly v. Bridges, Pr. 
 Ch. 252 ; Owen v. Aprice, 1 Ch. Re. 32 ; Anon, case, 1 Vern. 105, contradicted 3 
 Atk. 129. 
 
 Upon this rule it must be remarked, that a dotvress, (Mundy v. Mundy, 2 Ves. 
 jun. 122 ; D'Arcy v. Blake, 2 Sch. & Lef. 387 ; Wild v. Wells, 1 Dick. 3 ; Meggot 
 V. Meggot, 2 Id. 794; Goodenough v. Goodenough. 2 Id. 795; Curtis v. Curtis, 2 
 B. C. C. 620 ; Moor v. Black, Rep. t. Talbot, 126; and see Dormer v. Fortescue, 
 3 Atk. 130; Poulteney v. Warren, 6 Ves. 89 ; Agar v. Fairfax, 17 Ves. 552 ;) and 
 infant (see Dormer v. Fortescue, 3 Atk. 130, 134 ; S. C. Ridg. Rep. t. Hardwicke, 
 183, 191 ; Pulteney v. Warren, 6 Ves. 89; Newburgh v. Bickerstafife, 1 Vern. 295 ;) 
 are allowed to proceed in equity upon their legal title, and incidentally to the relief 
 will be decreed an account of the mesne rents and profits. But by 3 & 4 W. 4, c. 
 27, s. 41, the arrears of dower are recoverable for six years only next preceding 
 the commencement of the suit. And the account of an infant will be barred, if 
 he do not bring his bill within six years after he has attained his majority. Lockey 
 V. Lockey, Pr. Ch. 518. 
 
 3. " If a party be obliged to come into a court of equity for aid to enable him 
 to prosecute his title at law," (as where he cannot recover in a legal action by 
 reason of an outstanding term, or because the title deeds to the estate are in the 
 hands of the defendent,) "after possession recovered at law, there may be cases 
 in which he may come back for an account of rents and profits in the suit depend- 
 ing in equity." And see Dormer v. Fortescue, 3 Atk. 124; S. C. Ridg. Rep. t. 
 Hardwicke, 176; Reade v. Reade, 5 Ves. 744. Or the plaintiff being obliged to 
 resort to equity on one ground, may, to prevent circuity, ask complete relief in the 
 first instance in that court ; and if his title be established, either by the deter- 
 mination of the court itself, or by an issue directed at law, an account of the 
 rents and profits will be consequential upon the relief. Townsend v. Ash, 3 Atk. 
 336; Edwards v. Morgan, M'Clel. 541 ; Reynolds v. Jones, 2 Sim. & Stu. 206.
 
 REMEDIES OF THE CESTUI QUE TRUST. 599 
 
 It seems never to liave been doubted, thatwbere the *conver- p^-r ,-, 
 sion was in pursuance of the trust, the newly acquired property L J 
 would be bound by the original equity ;(^) but in the leading case of 
 Taylor v. Plumer,(m) it was ^contended, that where the eonver- |-^_._ 
 sion was tortious, then as the estate purchased was not in a form L J 
 consistent with the trust, *and the cestui que trust would be under r-^^-r p-, 
 no obligation to accept it in lieu of the rightful property, the L J 
 cestui que trust should come in as a general creditor, and not be permit- 
 ted to assert a specific lien. But this distinction was disallowed by the 
 court, and indeed seems to have been viewed as not maintainable in 
 the prior(rt) as well as in the subsequent(o) cases. Lord Ellenborough 
 observed, " Upon a view of the authorities and consideration of the 
 arguments, it should seem, that, if the property in its original state and 
 form was covered with a trust, no change of that form can divest it of 
 such trust, or give the trustee,, or those who represent him in right, any 
 other more valid claim in respect to it than they respectively had before 
 such change. An abuse of trust can confer no rights on the party 
 abusing it, nor on those who claim in *privity with him.'Yp) p^^._-. 
 But where a man borrows money for the purpose of purchasing an L -I 
 estate, and afterwards misapplies a trust fund in discharge of the debt 
 so contracted, the transaction cannot be treated as a purchase made with 
 the trust money.r^'). 
 
 It was said by Lord King that " money had no earmark, insomuch 
 that if a receiver of rents should lay out all the money in the purchase 
 
 (Z) Burdett v. Willet, 2 Vern. 638 ; Ryall v. Rolle, 1 Atk. 172 ; Ex parte Cliion, 
 3 P. W. 187, note (A) ; Waite v. Whorwood, 2 Atk. 159; Ex parte Sayers, 5 Ves. 
 169 ; Anon, case, Sel. Ch. Ca. 57. 
 
 (to) 3 Maul. & Sel. 562. 
 
 (n) Whitecomb v. Jacob, 1 Salk. 160 ; Lane v. Dighton, Amb. 409 ; Ryal v. Ryal, 
 lb. 413; Balgney v. Hamilton, lb. 414; Wilson v. Foreman, 2 Dick. 593, is mis- 
 reported: see Lench V. Lench, 10 Ves. 519. 
 
 (0) Lord Chedworth v. Edwards, 8 Ves. 46; Greatley v. Noble, 3 Mad. 79; 
 Buckeridge v. Glasse, Cr. & Ph. 126; Murray v. Pinkett, 12 CI. & Fin. 784; 
 Sheridan v. Joyce, 1 Jones & Lat. 401 ; Trench v. Harrison, 17 Sim. Ill; Mayor 
 of Berwick v. Murray, 3 Jur. N. S. 1 ; Harford v. Lloyd, 20 Beav. 310. 
 
 (/j) Taylor v. Plumer, 3 M. & S. 574. {q) Denton v. Davies, 18 Ves. 499. 
 
 In these cases the account will clearly be restricted to the period of six years ; 
 for the plaintiff recovers upon a legal title, and the circumstance of his being 
 obliged to sue in equity does not alter the nature of the action for inesne rents and 
 profits. See Reade v. Reade, 5 Ves. 749, 750; Harmood v. Oglander, 6 Ves. 215; 
 Drummond v. Duke of St. Albans, 5 Ves. 439 ; Hercy v. Ballard, 4 B. C. C. 468 ; 
 Stackhouse v. Barnston, 10 Ves. 470; Monypenny v. Bristow, 2 R. & M. 125; and 
 see Reynolds y. Jones, 2 Sim. & Stu. 206. In a late case, Thomas v. Thomas, 2 
 K. & J. 70, Vice-Chancellor Wood considered the rule to be, to give the account 
 from the filing of the bill only. 
 
 But if the plaintiff" has been kept out of the estate by the fraud, misrepresenta- 
 lion, or concealment of the defendant, the court will suppose that, had the plaintiff" 
 known his just rights, he would have commenced his action at law on the first 
 accruer of his title, and will then decree an account of the mesne rents and profits 
 against the defendant from that period. Dormer v. Fortescue, Ridg. Rep. t. Hard- 
 wicke, 184, 185 ; S. 0. 3 Atk. 130. 
 
 On the other hand, if the plaintiff" be in fault, as, if he be guilty of laches, the 
 account will be restricted to the time of filing the bill. Edwards v. Morgan, 
 M'Clel. 541, see 557.
 
 600 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 of land or if an executor should realize all his testator's estate, and after- 
 wards die insolvent, yet a court of equity could not charge or follow the 
 land ;"{)•) and bank-notes and ncffotiahle bills have been represented as 
 possessing the same quality. But the notion seems to have originated 
 from souae misconception, and cannot be supported. « 'Tis pity/' said 
 Lord Mansfield, <' that reporters sometimes catch at quaint expressions 
 that may happen to be dropped at the bar or bench, and mistake their 
 meanino-. It has been quaintly said that the reason why money cannot 
 be followed is because it has no earmark, but this is not true. The true 
 reason is upon account of the currency of it — it cannot be recovered after 
 it has passed in currency. Thus, in the case of money stolen, the true 
 owner cannot recover it after it has been paid away fairly and honestly 
 upon a valuable and bona fide consideration ; but before the money has 
 passed in currency an action may be brought for the money itself. 
 Apply this to the case of a bank-note — an action may lie against the 
 finder, it is true, but not after it has been paid away in currency. A 
 bank-note is constantly and universally, both at home and abroad, treated 
 as money, as cash, and paid and received as cash, and it is necessary for 
 the purposes of commerce, that their currency should be established and 
 secured. No dispute ought to be made with the bearer of a cash-note, in 
 regard to commerce and for the sake of the credit of these notes. "(s) And 
 r-!.-rr,-i Lord Ellenboroush observed, « The product *of or substitute for 
 L -1 the original thing still follows the nature of the thing itself as long 
 as it can be ascertained to be such, and the right only ceases when the means 
 of ascertainment fjxil, which is the case when the subject is turned into 
 money, and mixed and confounded in a general mass of the same description. 
 The difficulty which arises in such a case is a difficulty oifact and not of 
 law, and the dictum that money lias no earmark must be understood in 
 the same way, ^. e., as predicated only of an undivided and undistinguish- 
 able mass of current money ; but money kept in a bag, or otherwise kept 
 apart from other money, guineas, or other coin marked (if the fact were 
 so) for the purpose of being distinguished, are so far earmarked as to fall 
 within the rule which applies to every other description of personal pro- 
 perty, whilst it remains in the hands of the factor or his general legal 
 representatives. "(/) The only distinction, then, between money, notes, 
 and bills, and other chattels, appears to be this — that the former, for the 
 protection of commerce, cannot be pursued into the hands of a bona fide 
 holder, to whom they have passed in circulation, whilst other chattels 
 can be recovered even from a purchaser for valuable consideration, pro- 
 vided he did not buy them in market overt. 3Ioney,(i<) notes, (<;) and 
 bills,(?c) may be followed by the rightful owner, where they have not 
 
 (r) Deg V. Deg, 2 P. "W. 414 ; and so his lordship seems to have decided in Cox 
 V. Bateman, 2 Ves. 19 ; and see Waite v. Whorwood, 2 Atk. 159; Whitecomb v. 
 Jacob, 1 Salk. 160. 
 
 («) Miller v. Race, 1 Burr. 457, 459. {t) Taylor v. Plumer, 3 M. & S. 575. 
 
 (m) See Taylor v. Plumer, 3 M. & S. 575 ; Miller v. Race, 1 Burr. 457 ; Howard 
 V. Jemmet, 3 Burr. 1369; King t. Egginton, 1 T.R. 370; Ryall v. Rolle, 1 Atk. 172. 
 
 («) Anon, case, 1 Salk. 126 ; S. G. 1 Raym. 738 ; Miller v. Race, 1 Burr. 457 ; 
 Taylor v. Plumer, 3 M. & S. 562. 
 
 (w) Bennet v. Mayhew, cited Pulteney v. Darlington, 1 B. C. C. 232, and Cator
 
 REMEDIES OF THE CESTUI QUE TRUST. GOl 
 
 been circuU^ted or negotiated, or the person to whom they so passed had 
 express notice of the trust. (.x) And the only difference to be taken 
 between money and notes, on the one hand, and bills on the other, is that 
 money is not earmarked, and therefore cannot be traced except under 
 particular circumstances, but notes and bills, from carrying a number or 
 date, can in general be identified by the owner without difficulty.(y) 
 *We may here put the case of trust money mixed in the same 
 
 heap with the trustee's money. It may be said that the trust 
 
 [*759] 
 
 money has, like water, run into the general mass, and become amalga- 
 mated, and therefore the cestui que trust has no lien. But clearly this 
 cannot be maintained, for suppose a trustee, partly with his own money 
 and partly out of the trust fund, to have purchased an estate. It cannot 
 be predicated of any particular part of the estate, that it was purchased 
 with the cestui s que trust money, and yet the cestui que trust has a lien 
 upon the whole for the amount that was misemployed. (2;) And it follows 
 in the other case, that though the identical pieces of coin cannot be ascer- 
 tained, yet, as there is so much belonging to the trust in the general 
 heap, the cestui que trust is entitled to take so much out. 
 
 The doctrine of following trust money was carried to a great length in 
 Ex parte Sayers :(a) — A. who resided in Dominica, wrote to his agents 
 in London to procure and send him half-joes and dollars, directing them 
 to send to the amount of 6000^. at one time, 5000Z. at another, and 5000?. 
 every succeeding opportunity ; and remitted two bills of 10,000?. and 
 6000?. to be placed to his credit. The agents discounted the bills, and 
 remitted 5600?. to Peter and Co., at Lisbon, with directions to purchase 
 joes, and, if they could not procure them, to return the money in good 
 bills. Another remittance was afterwards made, to the same amount, 
 with similar directions. The answer from Lisbon was, that joes could 
 not be procured, and soon afterwards good bills were sent to near the 
 amount of the remittance. In the intei'val the London agents had become 
 bankrupts, and the bills got into the hands of the assignees. A. peti- 
 tioned for the bills as his specific property, and Lord Loughborough made 
 the order, observing, " It is admitted, very properly, that if joes had been 
 returned, the petitioner would have a right to them, as purchased by his 
 order with money remitted by him for that purpose, and it would be a 
 narrow rule to hold, that, the commission being in train to be executed, 
 the property being separated and severed ^property, by the acci- ^^^^„^ 
 dent that the joes were not bought, should be lost to the owner. L J 
 If the money got into the general fund, it got out again." 
 
 Upon a similar principle, if an executor of a deceased partner continue 
 the testator's capital in the trade, though the capital may consist only 
 of the stock and debts of the partnership, and these may undergo a con- 
 tinual course of change and fluctuation, yet the court follows the trust 
 
 V. Earl of Pembroke, 2 B. C. C. 287 ; and see Ex parte Sayers, 5 Yes. 169; Lord 
 Chedworth v. Edwards, 8 Ves. 46; Ryall v. Rolle, 1 Atk. 'l72 ; Raphael v. Bank 
 of England, 17 Com. Bench Re. 161. 
 
 (x) Verney v. Carding, cited Joy v. Campbell, 1 Sch. & Lef. 345. 
 
 {y) See Ford v. Hopkins, 1 Salk. 283. 
 
 (z) Lane v. Dighton, Arab. 409; Lewis v. Madocks, 17 Ves. 57, 58; Price v. 
 Blakemore, 6 Beav. 507. (a) 5 Ves. 169.
 
 602 LEAVIN ON THE LAW OF TRUSTS, ETC. 
 
 capital throughout all its ramifications, and gives to the beneficiaries of 
 the deceased partner's estate the fruits derived from that capital so con- 
 tinually altered and changed. (6) 
 
 And so if a trustee pay trust-money into a bank to a simple account 
 with himself, not in any way earmarked with the trust, and also keep 
 private moneys of his own to the same account, the court will disentangle 
 the account, and separate the trust from the private moneys, and award 
 the former specifically to the cestui que trust.{c) Lord Justice Knight 
 Bruce observed,(c?) '' Let me suppose that the very coins and the very 
 notes received by the trustee on account of the trust, had been placed by 
 him together in a particular repository, such as a chest, mixed confusedly 
 together as among themselves, but in a state of clear and distinct sepa- 
 ration from every thing else, and that they had so remained at his death, 
 it is, I apprehend, certain that after his death, the coins and notes thus 
 circumstanced would not have formed part of his general assets, but would 
 have been specifically applicable to the purposes of the trust. Suppose 
 this case to be varied by the fact that in the same chest with these coins 
 and notes the trustee had placed money of his own of a known amount, 
 had never taken it out again, but had so mixed and blended it with the 
 rest of the contents of the chest, that the particular coins or notes of 
 which this money of his own consisted could not be identified. What 
 difi'erence would that make ? None, as I apprehend, except — if it be an 
 exception — that his executors would possibly be entitled to receive from 
 the contents of the repository an amount equal to the ascertained amount 
 r^'zn T ^^ ^'^^ money in every sense *his own, so mixed by himself with 
 L -I the other money ; but not in either case, as I conceive, would 
 the blending together of the trust-moneys, however confusedly, be of any 
 moment as between the various cestuis que trust on the one hand, and 
 the executors as representing the general creditors on the other. Ldt it 
 be imagined that in the second case supposed, the trustee after mixing 
 the known amount of money of his own with the trust-moneys, had taken 
 from the repository a sum for his own private purposes, and it could not 
 be ascertained whether in fact the specific coins and notes forming it 
 included or consisted of those or any of those which were in every sense 
 his own specifically, what would be the consequence ? I apprehend that 
 in equity, at least, if not at law also, what he so took would be solely or 
 primarily ascribed to those contents of the repository which were in evei*y 
 sense his own ; he would, in the absence of evidence that he intended 
 a wrong, be deemed to have intended and done what was right ; and if 
 the act could not in that way be wholly justified, it would be deemed to 
 have been just to the utmost amount possible." And having laid down 
 these principles, the lord justice proceeded : " When a trustee pays trust- 
 money into a bank to his credit, the account being a simple account of 
 himself not marked or distinguished in any other manner, the debt thus 
 constituted from the bank to him, is one which as long as it remains due 
 belongs specifically to the trust, as much and as efi'ectually as the money 
 so paid would have done had it been specifically placed by the trustees 
 
 (6) See Pennell v. Deffell, 4 De G. M. & G. 389: and see pp. 319 & 321, supra, 
 (c) Pennell v. Deffell, 4 De G. M. & G. 3T2. ' (d) lb. p. 381.
 
 REMEDIES OF THE CESTUI QUE TRUST. 603 
 
 ia a particular repository and so remained ; that is to say, if the specific 
 debt shall be claimed on behalf of the ccstuis que trust, it must be deemed 
 specifically theirs as between the trustee and his executors and the general 
 creditors after his death on the one hand, and the trust on the other. 
 Whether the cestuis que trust are bound to take to the debt, whether the 
 deposit was a breach of trust, is a difi"erent question. This state of things 
 would not, I apprehend, be varied by the circumstance of the bank hold- 
 ing also for the trustee, or owing also to him money in every sense his 
 own." For the mode in which the court dealt with the subsequent items 
 on the debit and credit side of such an account, the reader is referred to 
 the case itself. 
 
 *In tracing money into land, the principal difiiculty has arisen r^-rpo-i 
 from the Statute of Frauds, (c) the seventh section enacting that L "J 
 all declarations of trusts of lands shall be manifested and proved by some 
 writing. It was formerly held that parol evidence, to prove a state of 
 circumstances from which a court of equity would elicit a constructive 
 trust, was inadmissible ;(/) but Lord Hardwicke, on the ground that 
 constructive trusts were excepted out of the Statute of Frauds(^) ruled 
 that parol evidence might be given ;(/t) and Sir T. Clarke, in the leading 
 case of Lane v. Dightou,(/) (though, had the point been res Integra, he 
 should have thought the evidence not admissible within the statute,) yet 
 followed the authority of Lord Hardwicke ; and Sir "\V. Grant has since 
 declared that, whatever doubts might formerly have been entertained 
 upon the subject, the law is now settled. (A-) 
 
 If a trustee be under an obligation to lay out money on land, and purchase 
 an estate at a price corresponding with the sum to be invested, the court 
 independently of positive evidence, may presume the trust money to have 
 been so applied. (i?) But no such presumption can be raised where it can be 
 shown that the trustee, though under such an obligation, was mistaken in 
 the nature of the trust, and acted under a different impression. (m) And 
 where a tenant for life with power to sell and invest in the purchase of 
 other land, purchased lands with borrowed moneys, and many years after- 
 wards sold the settled estates, and applied the purchase-money partly in 
 discharge of the debts thus contracted by him, it was held that the pur- 
 chased lands could not be treated as liable to the trusts of the settled 
 estates.(«) 
 
 In Lewis v. Madocks,(o) no evidence to connect any particular fund 
 with the estate was necessary, for a person having covenanted on his 
 marriage to settle all the personalty he *should acquire upon cer- [-^ygQ-i 
 tain trusts, and having afterwards invested parts of his personalty L J 
 on land, it was clear that the money expended upon the estate was bound 
 by the trust, and could therefore be followed into the purchase. 
 
 (e) 29 Car. 2, c. 3. (/) See supra, Ch. VIII. s. 2, p. 204. 
 
 (ff) By the 8th section. 
 
 (A) Ryal v. Ryal, Amb. 413; and see Anon, case, Sel. Ch. Ca. 57. 
 
 (0 Arab. 409. (k) Lench v. Lench, 10 Ves. 517. 
 
 (I) See iVnon. case, Sel. Ch. Ca. 57; Price v. Blakemore, 6 Bcav. 507 : Matthias 
 
 Matthias, 3 Jur. N. S. 429. 
 
 (wi) Perry v. Philips, 4 Ves. 108, see 116, 117. 
 
 («) Denton v. Davies, 18 Ves. 499. (o) 8 Ves. 150 ; S. 
 
 C. 17 Ves. 48.
 
 G04 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 Where a trust fund is traced into land, and the fund constitutes a part 
 only of the money laid out in the purchase, the court has usually given 
 a lien merely on the land for the trust money and interest ;(i>) but where 
 the entire land is clearly the fruit of the trust fund, the cestms que trust 
 must, upon principle, have a right to take the land itself, whether the 
 purchase be or not of a description authorized by the trust.(2) 
 
 SECTION III. 
 
 OF THE REMEDY FOR A BREACH OF TRUST AGAINST THE TRUSTEE 
 
 PERSONALLY. 
 
 In the event of a breach of trust, the cestui que trust is entitled to file 
 a bill against the trustee (a right which is not affected by the Statute of 
 Limitat1ons,)(r) to compel from him personally a compensation for the 
 loss the trust estate has sustained. The same rule applies where a cor- 
 poration is trustee ; and a corporation, since the Municipal Corporation 
 Act, is liable for a breach of trust committed before the act.(s) 
 
 If the trustee dispose of the trust estate to a purchaser for valuable 
 consideration without notice, the cestui que trust may compel the trustee 
 to purchase other lands of equal A'alue to be ^settled upon the 
 [*764] j.j^^ trust,((;) or the cestiii que trust may at his option take the 
 proceeds of the sale, with interest, or the present estimated value of the 
 lands sold, after deducting any increase of price caused by subsequent 
 improvements. («) 
 
 So where a testator gave a legacy of 1200/., and directed the executor 
 to invest it in the funds, and the estate was wound up, but the executor 
 neglected to invest, and the price of stock rose ; it was held, that retainer 
 by the executor, after accounting for the residuary estate, was equivalent 
 to payment to a trustee; that if the cestui que trust sustained a loss by 
 the trustee neglecting his duty, the cestui que trust had a right to charge 
 the trustee with the amount of the loss ; that the executor was therefore 
 bound to purchase so much stock as the legacy would have produced had 
 it been invested at the proper period. (c) And, in another case, where a 
 
 (p) Lane v. Dighton, Arab. 409; Lewis v. Madocks, 8 Ves. 150; 17 Ves. 48, 
 see 57 ; Price v. Blakemore, 6 Beav. 507. 
 
 (q) Trench v. Harrison, 17 Sim. 111. Lord Manners, in Savage v. Carroll, 1 
 B. & B. 265, see 284, seems to have thought otherwise ; but this was before Tay- 
 lor V. Plumer. 
 
 (?•) Phillipo V. Munnings, 2 M. & C. 309 ; Milnes v. Cowley, 4 Price, 103; Cator 
 V. Croydon Railway Company, 4 Y. & C. 405. 
 
 (s) Attorney-General v. Corporation of Leicester, 9 Beav. 546. A solicitor who 
 wilfully advises a breach of trust, is liable to be struck off the roll ; Goodwin v. 
 Gosnell, 2 Coll. 457, see p. 462. And so a fortiori a solicitor, who, being a trustee 
 himself, commits a wilful breach of trust ; In re Chandler, 2 Jur. N. S. 366; In re 
 Hall, 2 Jur. N. S. 633. 
 
 (t) See Mansell v. Mansell, 2 P. W. 681 ; Vernon v. Vaudry, Barn. 303. 
 
 [u) See Attorney-General v. East Retford, 2 M. & K. 35 ; but see Denton v. 
 Davies, 18 Ves. 504. 
 
 {v) Byrchall v. Bradford, 6 Mad. 13 ; S. C. Id. 235 : and see Pride v. Fooks, 2 
 Beav. 430.
 
 REMEDIES OF THE CESTUI QUE TRUST. 605 
 
 testator bad directed an investment in the funds and an accumulation 
 of the dividends, the trustee was decreed to purchase the sum of stock 
 which the fund, if regularly invested, would have produced, and to make 
 good the amount due in respect of subsequent accumulation. (lo) But if 
 the trustee have a discretion of investing on guvernment or real securi- 
 ties, the trustee is answerable for the money only with interest, and not 
 in the alternative for the money with interest on the stock with dividends 
 at the option of the cestui que trust. (x^ 
 
 So if a trustee suffer a policy of insurance to become forfeited through 
 neglect to pay the premiums, he is bound to make compensation to the 
 cestui que tr^ist for the consequential damage to the estate ;(^) that is, if 
 he have funds in hand for payment of the premiums ; but if he have 
 none and can procure none, he would be exempt from liability. He may, 
 however, either advance money himself, or borrow it from another on 
 the security of the policy, and the lien on the policy will be allowed. Tz) 
 So if a settlement contain a covenant for the ^transfer of stock pj^-rpr-i 
 and the trustees neglect to enforce the ti'ansfer, they are liable L J 
 for all the consequences. (a) 
 
 If a trustee has assumed to act as trustee and received money in that 
 character, he is accountable for the proceeds to the cestui que trust, and 
 cannot defend himself by showing that in fact he was not legally a trus- 
 tee.(i) 
 
 If a bill be filed fcft* an account with an allegation of wilful default 
 and a prayer for consequential relief, and the common accounts only are 
 directed, it is too late to ask relief on further directions against any 
 wilful act that has transpired accidentally from the other inquiries, (c) 
 
 If the trustee himself be dead, the bill may be filed against the repre- 
 sentative ; and an executor or administrator will be answerable for the 
 damage, though he may have distributed the assets amongst the legatees 
 or next of kin, without previous notice of the breach of trust (except it 
 was done under the sanction of the court,(fZ) or the cestui que trust may 
 recover the assets from the legatees or next of kin amongst whom they 
 have been distributed. (e) 
 
 But the claim of the cestui que trust is a simple contract debt only, 
 and therefore, until the late act, making all a person's real and personal 
 estate liable to his simple contract debts, it was recoverable not from the 
 real but only from the personal estate. However, if the trustee signs 
 the trust deed and engages under his hand and seal by words that would 
 
 {w) Pride v. Fooks, 2 Beav. 430. {x) See ante, pp. 355, 356. 
 
 [y) Marriott v. Kinnersley, Taml. 470. 
 
 {z) Clack V. Holland, 19 Beav. 273, 276, per Cur. 
 
 [a) Fenwick v. Greenwell, 10 Beav. 412. 
 
 {b) Rackham v. Siddall, 16 Sim. 297 ; affirmed on appeal to the extent of the 
 interest of the plaintiff, the tenant for life ; 1 Mac. & Gor. 607 ; and see Derby- 
 shire V. Home, 3 De Gex, Mac. & Gor. 80 ; Hope v. Liddell, 21 Beav. 183. 
 
 (c) Coope V. Carter, 2 De Gex, Mac. & Gor. 292. 
 
 (d) Knatchbull v. Fearnhead, 3 M. & C. 122 ; March v. Russell, 3 M. & C. 31 ; 
 Low V. Carter, 1 Beav. 426 ; Hill v. Gomme, lb. 540 ; Underwood v. Hatton, 5 
 Beav. 39. 
 
 (e) March v. Russell, 3 M. & Cr. 31 ; Knatchbull v. Fearnhead, 3 M. & Cr. 126 j 
 Underwood v. Hatton, 5 Beav. 38. 
 
 April, 1858.— 39
 
 606 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 amount to a covenant at law, to execute the trust, then the breach of 
 trust becomes a specialty. (/) 
 
 In awardino- compensation to the cestui que trust against the trustee, 
 the court pays no regard to the circumstance whether the trustee derived 
 any actual advantage or not, but proceeds *upon the principle, 
 L J that a trustee, who deviates from the line of his duty, is under 
 an oblio-ation to make good the loss to the cestui que trust :[g) and if a 
 trustee be guilty of misconduct, and a loss follow, the court does not 
 acquit him, because the loss was more immediately caused by some event 
 wholly beyond the control of the trustee, such as fire, lightning, or other 
 accidcnt.(/i) " Although," said Lord Cottenham, " a personal represen. 
 tative acting strictly within the line of his duty, and exercising reason- 
 able care and diligence, will not be responsible for the failure or depre- 
 ciation of the fund in which any part of the estate may be invested, or 
 for the insolvency or misconduct of any person who may have possessed 
 it, yet, if that line of duty be not strictly pursued, and any part of the 
 property be invested by such personal representative in funds, or upon 
 securities, not authorized, or be put within the control of persons who 
 ought not to be intrusted with it, and a loss be thereby eventually sus- 
 tained, such personal representative will be liable to make it good, how- 
 ever unexpected the result, however little likely to arise from the course 
 adopted, and however free such conduct may have been from any impro- 
 per motive. "(r) And a trustee who has been wilTully the cause of loss 
 to one trust-fund, cannot set off against it an improvement made in 
 another fund held in trust for the same parties. (^-^ 
 
 But a trustee will not be charged with imaginary values ;(?) and, . 
 being regarded as a mere stakeholder, he will not be liable for more than 
 he has actually received, (m) except in cases of very supine negligence, 
 or wilful default. (h) 
 
 r*7ft7T *Where co-trustees are Jointly implicated in a breach of trust, 
 L J the cestui que trust, though he obtain a decree against the trus- 
 tees jointly, may have process of execution against any one of them 
 separately •,(o'\ for as regards the remedy of the cestui que tintst there is 
 no primary liability, but each trustee is responsible for the entirety of 
 
 (/) See supra, pp. 238, 239. 
 
 {g) See Dornford v. Doruford, 12 Ves. 129; Raphael v. Boehm, 13 Ves. 411 ; 
 S. C. lb. 490, 491; Moons v. De Bernales, 1 Russ. 305; Adair v. Shaw, 1 Sch. & 
 Lef. 272 ; Lord Montfort v. Lord Cadogan, 17 Ves. 489 ; Scurfield v. Howes, 3 B. 
 0. C. 90, but see Attorney- General v. Greenhouse, 1 Bligh, X. R. 57-59. 
 
 (A) See Caflfrey v. Darby, 6 Ves. 496 ; Cocker v. Quayle, 1 R. & M. 535 ; Fyler 
 V. Fyler, 3 Beav. 568 ; Kellaway v. Johnson, 5 Beav. 324; Munch v. Cockerell, 5 
 M. & Or. 212. 
 
 {i) Clough V. Bond, 3 M. & Cr. 496 ; Gibbins v. Taylor, 22 Beav. 344. 
 
 {k) Wiles V. Gresham, 2 Drewry, 258, see p. 271. 
 
 [l) Palmer v. Jones, 1 Vern. 144. 
 
 (?«) Harnard v. Webster, Sel. Ch. Ca. 53. 
 
 (n) Pybus v. Smith, 1 Ves. jun. 193, per Lord Thurlow; Palmer v. Jones, 1 
 Vern. 144, per Lord Nottingham. 
 
 (o) Ex parte Shakeshaft, 3 B. C. G. 197 ; Walker v. Symonds, 3 Sw. 74, 75 ; 
 Attorney-General v. Wilson, 1 Cr. & Phil. 28, per Lord Cottenham; and see Ex 
 parte Angle, Barn. 425 ; but see In re Chertsey Market, 6 Price, 278, 279 ; Taylor 
 V. Tabrum, 6 Sim. 281.
 
 REMEDIES OF THE CESTUI QUE TRUST. G07 
 
 the loss incurred. (jj) However, where a trustee had refused to accept 
 the office unless another should be named with him, and the trust money 
 be divided between them, so that each might be responsible for a moiety 
 only, and this was accordingly done, but the trust deed was drawn in 
 the usual form as if they were joint trustees of the whole sum, it was 
 held, upon the insolvency of one of the trustees, that the co-trustee 
 should not be answerable for more than the moiety paid to himself, the 
 division of the trust money being Sir J. Leach observed, " a term in 
 the creation of the trust."(5') Where several defendants are involved in 
 a breach of trust, the court decrees costs against them jointly for the 
 plaintiff's greater security, and does not distinguish between the relative 
 culpabilities of the defendants. (?•) But in an analogous case where one 
 defendant was called upon to pay all the costs, he obtained an order in 
 the same cause upon a motion (which however was not opposed) for con- 
 tribution by the other defendants. (.s) 
 
 A corporation filed a bill against five of the corporators who were 
 regarded as its agents and trustees, to make them liable for the conse- 
 quences of certain acts done by them, with the view of illegally aliening 
 the corporation property, and it was held to be unnecessary to make all 
 the corporators parties who in any way had participated in the acts, for 
 the defendants were wrong doers, and the case against each was distinct, 
 depending upon its own evidence. (^) 
 
 *Though, as, respects the remedy of the cestui que trust, each i-^rypoT 
 trustee is individually responsible for the whole amount of the L J 
 loss, whether he was the principal in the breach of trust, or was merely 
 a consenting party, yet, as between the trustee, themselves, (unless the 
 transaction was vitiated not only by constructive but actual fraud, when 
 the court will hold itself entirely aloof,(it)) it seems an apportionment, 
 or contribution amongst the trustees, may be compelled on a bill filed 
 for the purpose ;(y) and so, as between the trustees and a third person 
 who has reaped the benefit of the breach of trust, though the trustees 
 must make the disbursement in the first instance to the injured party, 
 the loss may eventually be cast on the person who was the gainer by the 
 breach of trust. (w) 
 
 (p) See WilsoQ V. Moore, 1 M. & K. 146 ; Lyse v. Kingdoa, 1 Coll. 188 ; Rich- 
 ardson V. Jenkins, 1 Drewry, 477 ; AUeyne v. Darcy, 4 Ir. Ch. Re. 206. 
 
 (q) Birls v. Betty, 6 Mad. 90. 
 
 (?•) L.iwrence v. Bowie, 2 Phill. 140 ; 1 C. P. Coop. temp. Cott. 241. 
 
 (s) Pitt V. Bonner, 1 Y. & C. Cli. Ca. G70. 
 
 {() Attorney-General v. Wilson, 1 Cr. & Phil. 1, see 28; and see London Gas- 
 Light Company v. Spottiswoode, 14 Beav. 272, 273. 
 
 (u) See Lingard v. Bromley, 1 Ves. & B. 114; Tarleton v. Hornby, 1 Y. & C. 
 336; Attorney-General v. Wilson, 1 Cr. & Phil. 28. 
 
 (y) Ex parte Shakeshaft, 3 B. C. C. 198, per Lord Thurlow ; Lingard v. Brom- 
 ley, 1 V. & B. 114; Perry r. Knott, 4 Beav. 180, per Lord Langdale ; and see 
 KnatchbuU v. Fearnhead, 3 M. & C. 122: Pitt v. Bonner, 1 Y. & C. Ch. Ca. 670; 
 Ex parte Burton, 3 Mont. D. & De Gex, 373 ; Baynard v. Wolley, 20 Beav. 583 ; 
 and see Wilson v. Goodman, 4 Hare, 54. 
 
 («') Tratford v. Boehm, 3 Atk. 440 ; Greenwood v. Wakeford, 1 Beav. 576 ; 
 Booth V. Booth, 1 Beav. 125; Lord Montfort v. Lord Cadogan, 17 Ves. 485; 19 
 Ves. 635 ; S. C. 2 Mer. 3; and see Howe v. Earl of Montfort, 7 Ves. 150, 151 ; 
 Jacob v. Lucas, 1 Beav. 436 ; Lincoln v. Wright, 4 Beav. 432. But if a tenant 
 for life have a general power of appointment, a person taking under the power
 
 608 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 In TrafFovd v. Boehm,(;«) Henry Heathcote and Charles Boehm were 
 the trustees of Mr. Trafford's marriage settlement, and the fortune of the 
 lady was placed in their hands, to be laid out in a purchase of lands as 
 soon as one could conveniently be found. No suitable purchase offer- 
 ino- the money was invested hy the direction of the husband in South 
 Sell Stock, and a loss was incurred. Lord Hardwicke said, '< There is 
 no doubt this court will endeavour to deliver a trustee from any mischief 
 that may happen from a misapplication of trust money, and in the pre- 
 sent instance the *loss must first come out of the estate of 
 [-■'•769] ^^^ husband, because done with his concurrence or subsequent 
 assent, for he has passed the account with the trustees, and constantly 
 received the dividends of the stock. The rule of the court is, that if a 
 trustee err in the management of the trust with approbation of the 
 cestui que trust, it must be made good first out of the estate of the per- 
 son who consented to it." 
 
 And the same principle was acted upon in the case of Lord Montfort 
 V. Lord Cadogan.(y) By indenture bearing date in 1772, certain lease- 
 holds were vested in trustees upon trust in the first place to renew the 
 leases out of the rents and jjrofits, and then upon trust for Lord Mont- 
 fort for life, remainder to Lady Montfort for life, remainder to the issue. 
 The first period of renewal occurred in 1786, and the second in 1800, 
 and Lord Montfort died in 1799. The trustees, instead of renewing as 
 they should have done, permitted Lord Montfort during his life and Lady 
 Montfort after his decease, to receive the whole rents of the estate. Lord 
 Montfort, the son and only issue, renewed the lease at his own expense in 
 1S08, during the lifetime of the Dowager Lady Montfort, and then filed 
 a bill against her, the executors of Lord Montfort his father, and the 
 ti'ustees, to be repaid the money he had advanced for the renewal. Sir 
 W. Grant said, <' Though my opinion is that these trustees are answerable, 
 they are not alone answerable. The tenants for life have acquiesced in 
 the breach of trust, and profited by it by receiving the ii-hole rents and 
 profits, ajKirt of which was applicable to the renewals. AU these j^arties 
 are anstverable to the plaintiff ; hut as hetioeen the tenants for life and 
 the trustees, if Lord Montfort has left assets, they will in the first p>lace 
 be applicable to make good so much of the fine as corresponds with the 
 period of his enjoyment. Lady Montfort is in like manner answerable 
 for the period of her possession, and the accruing rents during her life 
 are liable to be impounded to make good the demand against her. What- 
 ever can be got from these funds will go in ease of the trustees." And 
 the decree was, that the renewal fine ought to be paid to the plaintiff by 
 the trustees, but that the same ought to be paid to them out of the es- 
 j--^--^, tates of Lord Montfort deceased, and *of the Dowager Lady Mont- 
 •- J fort, according to the times they had respectively been in posses- 
 
 cannot come upon the estate of the tenant for life, the donee of the power, for a 
 breach of trust by him, for the estate so appointed is part of the tenant for life's 
 assets. Williams v. Lomas, 16 Beav. 1. Secus where the decree of the power is 
 ».feme covert, except in a case of actual fraud by her; Vaughan v. Vanderstegen, 
 2 Drewry, 1G5, 3G3. 
 
 {x) 3 Atk. 440. (y) 17 Ves. 485.
 
 REMEDIES OF THE CESTUI QUE TRUST. 609 
 
 sion. From tlais decree some of the parties appealed, (2) and Lord Eldon, 
 before whom the case was now argued, said, " One question is, whether 
 Lord Montfort's estate, if sufficient, and that of Lady Montfort should 
 have been resorted to for payment of the plaintiff's demand before the 
 trustees were called upon, and many cases have established, that a tenant 
 for life joining in a breach of trust shall he ansiverahle in the first in- 
 stance ; but the cestui que trust is not bound to wait while inquiries as to 
 assets, or what proportion Lady Montfort is to pay, are depending. My 
 opinion therefore is, that the master of the rolls was perfectly right in 
 charging the trustees in the first instance, and also in deciding, that 
 they have a remedy over against those who took the rents and profits 
 which ought to have paid the fine." His lordship then proceeded to 
 consider the proportion in which the estate of Lord Montfort deceased, 
 and the Dowager Lady Montfort, ought to contribute. '^Itis a little 
 difficult," he said, " to determine the meaning of these terms in which 
 the tenants for life are charged according to the times they have respec- 
 tively been in possession. In 1799 (when Lord 31ontfort died,) Lady 
 Montfort was entitled by the settlement to possession of the leasehold es- 
 tate, under a lease renewed in 1786, for fourteen years, with a fund ac- 
 cumulating for the fine, to be paid on the nest renewal in 1800. If there- 
 fore the decree is to be understood, that, as Lord Montfort enjoyed from 
 1772 to 1799, and Lady Montfort from 1799 to 1808, when the fine in 
 question was paid, that sum is to be reimbursed as between his and her 
 estates in this proportion, that his estate is to be charged according to the 
 account of the rents between 1772 and 1799, and she is to pay according 
 to the rents from 1799 to 1808, she appears to me to be charged in a way 
 in which she is not chargeable. My opinion is, that the estate of the late 
 Lord iMontfort is to be made answerable to the trustees after they have paid 
 the plaintiff; and Lady Montfort is also answerable, but only for the pro- 
 portion for which she ought to be called upon, with a due regard to the 
 obligation of the trustees to put *her in possession of the estate r;;;--r-i-| 
 fully renewed in 1786, and with an accumulating fund to be L J 
 applied to another renewal in 1800. Lord Montfort having received the 
 rents from 1772 to 1799, and not having renewed, and a much larger 
 fine of course being required at the end of twenty-eight years than four- 
 teen years, his estate must be answerable for the increase ; but if the trus- 
 teess hould not find his estate sufficient to answer that, I cannot, as 
 between them and Lady Montfort, throw any part of the increase upon 
 her. That must therefore fall upon the trustees personally." 
 
 If a tenant for life, or other person having a partial interest, be an 
 actor in a breach of trust, all the benefit that would have accrued to him, 
 either from that trust fund, or any other estate comprised in the same 
 settlement(n) may be retained as against him, his assignees in baukrupt- 
 cy,(Z^) or (except where the defence of purchase for value without notice 
 
 {z) 19 Ves. 635 ; S. C. 2 Mer. 3. 
 
 («) Woodyatt v. Gresley, 8 Sim. 180; Ex parte Mitford, 1 B. C. C. 398; see 
 Priddy v. Rose, 3 Mer. 105 ; Burridge v. Row, 1 Y. & C. Ch. Ca. 183, 583 ; Lin- 
 coln V. Wright, 4 Beav. 432, per Lord Langdale ; Fuller v. Knight, 6 Beav. 205 ; 
 M'Gachen v. Dew, 15 Beav. 84. 
 
 {b) Ex parte Turpin, 1 D. & C. 120 ; Ex parte Smith, 1 Deac. 143 ; Woodyatt
 
 610 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 is applicable) those claiming under bim,(c) until the amount retained, 
 with the accumulations thereon, (cZ) have compensated the trust estate for 
 the loss it had sustained. It was contended in one case, that on a simi- 
 lar principle, where an estate was devised to a person who was a debtor 
 to the testator, the debt was a lien on the devised estate, but the court 
 not finding any precedent did not allow the claim. (e) 
 
 If the trustee become hanknijit, the loss may be proved against his 
 estate,(/) and if interest would have been decreed in equity against the 
 trustee himself, it will constitute part of *the debt in the proof 
 [*' ''^^l against the estate in the hands of the assign ees,(5r) and if the 
 breach of trust was a sale of stock and misemployment of the money, the 
 ceshd que trust may, at his option, elect to prove for the proceeds of the 
 sale, or for the price of the stock at the date of the commission of bank- 
 rupt. (/«) 
 
 If the bankrupt trustee was one of a firm, and the trust money had 
 been lent to the firm, with notice of the equity attached to it then, inas- 
 much as a breach of trust creates a joint and several liability, proof may 
 be made either against the joint estate of the partners or the separate 
 estate of the bankrupt trustee, at the option of the cestui que trust ;(i) 
 and if the bankrupt has laid out the trust money on a mortgage, the cestui 
 que trust is not put to his election whether he will prove for the debt, and 
 abandon the mortgage, or take the mortgage and abandon the debt, but 
 may pi'ove for the debt, and have the benefit of the mortgage also ;[k) and 
 if the trust money has been invested, though improperly, the cestui que trust 
 has a right to elect to prove for the money and interest, or for the value 
 of the securities and profits.(/) But if the bankrupt in whose hands the 
 trust fund was, be one of the trustees, and indebted to the trust estate, 
 and also in part beneficially interested in the trust, proof cannot be made 
 for the whole amount, but only for the balance after setting off the bank- 
 rupt's beneficial interest against the debt due from him.^m) 
 
 The original trust debt itself will be barred by the certificate of the 
 bankrupt, though no proof was made, and the cestui que trust did not 
 know of the misapplication of the trust fund.(7i) But it is the duty of 
 
 V. Gresley, 8 Sim. 185, per Cur.; Ex parte King, 2 M. & A. 410; see Smith v. 
 Smith, 1 Y. & C. 338 ; Burridge v. Row, 1 Y. & C. Ch. Ca. 183, 583 ; Raby v. 
 Ridehalgh, 1 Jur. N. S. 363. 
 
 (c) Woodyatt v. Gresley, 8 Sim. 180 ; Priddy v. Rose, 3 Mer. 86 ; Cole v. Mud- 
 dle, 10 Hare, 186; and see Morris v. Lavie, 1 Y. & C. Ch. Ca. 380; Egbert v. But- 
 ter, 21 Beav. 560. 
 
 {d) Ex parte King, 2 M. & A. 410. (e) Ex parte Barff, 1 De Gex, 613. 
 
 (/) Keble v. Thompson, 3 B. C. C. 112 ; Moons v. De Bernales, 1 Russ. 301 ; 
 Dornford v. Dornford, 12 Ves. 127 ; Ex parte Shakeshaft, 3 B. C. C. 197 ; Bick v. 
 Motly, 2 M. & K. 312 ; Lincoln v. Wright, 4 Beav. 427. 
 
 (g) Dornford v. Dornford, Bick v. Motly, Moons v. De Bernales, iibi supra. 
 
 (A) Ex parte Shakeshaft, 3 B. C. C. 197 ; Ex parte Gurner, 1 Mont. Deac. & De 
 Gex, 497 ; and see Ex parte Moody, 2 Rose, 413 ; Ex parte Stutely, 1 Mont. Deac. 
 & De Gex, 643. 
 
 (i) Ex parte Heaton, Buck. 368 ; Ex parte Watson, 2 V. & B. 414; see Ex parte 
 Poulson, 1 De Gex, 79. 
 
 {k) Ex parte Biddulph, 3 De G. & Sm. 587 ; Ex parte Geaves, 2 Jur. N. S. 651. 
 
 (l) In re Montefiore, 9 Jur. 562. 
 
 (m) Ex parte Turner, 2 De Gex, Mac. & Gor. 927. 
 
 («) Ex parte Holt, 1 Deac. 248. As to the discharge of a debt created by a
 
 REMEDIES OF THE CESTUI QUE TRUST, Gil 
 
 the trustee to make sure that wme person prove on behalf of the trust, 
 and if he do *not, he is liable in equity for this neglect of duty ; r^Y^on 
 and though he has obtained his certificate he will remain respon- L -I 
 sible personally for the amount that might have been received by way 
 of dividend. (o) If the bankrupt was one of several co-trustees, who were 
 jointly implicated in a breach of trust, then proof may be made against 
 the bankrupt's estate for the whole money lost, though he was not the 
 party benefited by the breach of trust ;(j^) and though the other trustee 
 be living and solvent.(5) And the proof against the bankrupt, will not 
 be precluded by a bond given not to sue the other trustee reserving the 
 rights against all other parties,(r) though a release to the other trustee, 
 being an extinguishment of the debt, would prevent any subsequent 
 proof (.s) 
 
 So if two co-trustees be bankrupts, proof may be made against the 
 estates of both ;(/) but of course more than 20s. in the pound cannot be 
 received in the whole. Or at the same time that proof is made against 
 the estate of one who is a bankrupt, legal proceedings may be taken 
 against the solvent trustee; for proof under a bankruptcy is not pay- 
 ment. ((A 
 
 But where the whole debt is proved against the estate of the bankrupt 
 trustee, the assignees may afterwards file a bill, and compel contribution 
 from the other trustee, (v) even where the bankrupt trustee himself could 
 not, from his fraudulent conduct, have obtained such relief. (i6') 
 
 In assigning to the cestui que trust the foregoing remedies against the 
 trustee, it must of course be understood that the cestui que trust has not 
 himself concurred in the breach of duty, or subsequently acquiesced in 
 it, and, a fortiori, has not executed a formal release. 
 
 If a cestui que trust concur in the breach of trust, he is forever estop- 
 ped from proceeding against the trustee for the consequences *of r^^fr^-i 
 the act. (a;) Thus, in the leading case of Brice v. Stokes,(_?/) L -» 
 where the trust estate was sold ivith the apjn^obation of Brice, the tenant 
 for life, and the purchase-money was improperly left in the hands of one 
 of the trustees ivith the knowledge of Brice, Lord Eldon held, that the 
 trustees were answerable to the remainderman for the principal, but not 
 
 breach of trust under the Insolvent Acts, see Thompson v. Finch, 22 Beav. 316 ; 
 on appeal, 25 L. J. N. S. (Ch.) G81. 
 
 (o) (Jrrett v. Corser, 21 Beav. 52. (p) Ex parte Shakeshaft, 3 B. C. C. 197. 
 
 (g) Ex parte Beilby, 1 G. & J. 167. (r) lb. 
 
 (a) See Blackwood v. Borrowes, 2 Conn. & Laws, 478. 
 
 (t) Keble v. Thompson, 3 B. C. C. 112 ; Ex parte Poulsoii, 1 De Gex, 79. 
 
 (m) Ex parte King, 1 Deac. 164, &c. 
 
 (v) See Ex parte Shakeshaft, 3 B. C. C. 97 ; Bromley v. Lingard, 1 V. & B. 114. 
 
 (w) See Muckleston v. Brown, 6 Ves. 68 ; Joy v. Campbell, 1 Sch. & Lef. 335, 
 339 ; Ottley v. Browne, 1 B. & B. 360. 
 
 (x) Walker v. Symonds, 3 Sw. 64, per Lord Eldon ; Wilkinson v. Parry, 4 Russ. 
 272 ; Cocker v. Quayle, 1 R. & M. 535 ; Nail v. Punter, 5 Sim. 555 ; Newman v. 
 Jones, Rep. t. Finch, 58 ; and see Fellows v. Mitchell, 1 P. AV. 81 ; Booth v. Booth, 
 1 Beav. 125; Langford v. Gascoyne, 11 Ves. 336; White v. White, 5 Yes. 555 ; 
 In re Chertsey Market, 6 Price, 280, 284 ; Baker v. Carter, 1 Y. & C. 255 ; Byrchall 
 V. Bradford, 6 Mad. 13 ; Morley v. Lord Hawke, cited in Small v. Attwood, 2 Y. 
 & J. 520 ; Fyler v. Fyler, 3 Beav. 550. 
 
 {ij) 11 Ves. 319.
 
 012 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 to the tenant for life for the interest. " If," said his lordship, " there 
 are two trustees, and a transaction takes place, in which the fund is takea 
 out of the state in which it ought to have remained, and is not placed 
 in a state in which it ought to be, but is kept in hands which ought not 
 to retain it, if any particular cestui que trust has acted in authorizing that 
 as much as the trustee who has not the money in his hands, and continues 
 to permit it to be so treated, in a question between that cestui que trust 
 and that trustee, the latter shall not be called upon by the former." 
 
 But persons cannot be held to have concurred in a breach of trust who 
 had not the means of knowing that the acts to which they were parties 
 involved a breach of trust. (s) 
 
 And persons cannot concur in a breach of trust, who, as femes covert(aj 
 and infants,(i) have no legal capacity to consent to the transaction. 
 
 But neither coverture nor infancy will be a protection from a charge 
 j-^-_r-, of fraud, and therefore if a feme covert,(c^ or *infant,(^) draw 
 L -I w a trustee to commit a breach of trust, such feme covert or infant 
 cannot afterwards call the trustee to account for having exceeded the 
 line of his duty. 
 
 And a feme covert will be bound by her concurrence in a breach of 
 trust as to a fund which is settled to her separate use.(e) But she will 
 not be estopped upon the ground of concurrence where it was not her 
 own voluntary act, but her judgment was misled, or she was under undue 
 influence. (/) And ^ feme covert has no power to concur in any act as 
 to a fund settled to her separate use, with a restraint against anticipa- 
 tion, (^) and of course concurrence will not operate beyond the interest 
 settled to her separate use, as if a /erne be tenant for life to her separate 
 use with a power of appointing the corjpus by will, though her concur- 
 rence would affect the life interest it does not prevent the appointees 
 under the will from holding the trustees responsible. (/i) But otherwise, 
 if the feme be tenant for life, with a general power of appointment which 
 is equivalent to ownership, and is therefore regarded as an estate to her 
 separate use.(i) 
 
 {z) Buckeridge v. Glasse, 1 Cr. & Ph. 135, per Lord Cottenh.'im. 
 
 (a) Ryder v. Bickerton, cited "Walker v. Symonds, 3 Sw. 80 ; Underwood v. 
 Stevens, 1 Mer. 717; Smith v. French, 2 Atk. 243; Needler's case, Hob. 225; 
 Lench v. Lench, 10 Ves. 517, per Sir W. Grant; Lord Montfort v. Lord Cadogan, 
 19 Ves. 639, 640, per Lord Eldon ; and see Parkes v. White, 11 Ves. 221 ; Bate- 
 man v. Davis, 3 Mad. 98. 
 
 (h) See supra, pp. 34, 39 ; and Wilkinson v. Parry, 4 Russ. 276. 
 
 (c) Ryder v. Bickerton, cited Walker v. Symonds, 3 S\r. 82, per Lord Hard- 
 wicke, and see Savage v. Foster, 9 Mod. 35 ; Lord Montfort v. Lord Cadogan, 19 
 Ves. 640 ; Vandebende v. Livingston, 3 Sw. 625 ; Evans v. Bicknell, 6 Ves. 181 ; 
 Jones v. Kearney, 1 Dru. & War. 166. 
 
 (d) See the cases at note (a), p. 39, supra. 
 
 (e) Walker v. Shore, 19 Ves. 387 ; see 393 ; and see Buckeridge v. Glasse, Cr, 
 & Ph. 136. 
 
 (/) Whistler v. Newman, 4 Ves. 129 ; Hughes v. Wells, 9 Hare, 773 ; and see 
 Walker v. Shore, 19 Ves. 393. 
 
 {g) Cocker V. Quayle, 1 R. & M. 535; but see Derbishire v. Home, 3 De G. M. 
 &G. pp. 102, 113. 
 
 (A) Kellaway v. Johnson, 5 Beav. 319. 
 
 (j) Brewer v. Swirles, 2 Smale & Gifif. 219.
 
 REMEDIES OF THE CESTUI QUE TRUST. 613 
 
 Again, a cestui que trust, tbougli he did not concur at the time, may 
 have acquiesced in the breach of trust subsequently. (/»•) 
 
 How far the mere knoicledge of a right to sue in respect of a breach 
 of trust, and the abstaining to sue will, without any other act, constitute 
 laclies in the eye of a court of equity, and disentitle the plaintiff to relief, 
 as in the particular ^instances of purchases by trustees, &c., above ri^i'j'jn-i 
 referred to,(/) cannot be considered as clearly settled. The present L J 
 master of the rolls in a late case appears to have thought that mere delay 
 disentitled a plaintiff under such circumstances to relief, but his decision 
 rested also on facts amounting, in his honor's opinion, to actual acquies- 
 cence. (m) 
 
 A testator gave 400?. to A., B., C, and D., his executors, upon trust 
 to invest in lands to be settled on E. The money was lent improperly 
 to A. upon the security of his bond, and lost; but, as E., the legatee, 
 had constantly accepted interest on the loan, and had neither brought 
 his bill, nor called on the executors to invest the money in land, it was 
 held he had virtually consented, and thus estopped himself from holding 
 the trustees responsible. (n) 
 
 In another case, on the marriage of Mr. Scgar with Miss French, a 
 sum of 1000?., belonging to the lady was assigned to her mother as 
 trustee, and by indenture executed after the marriage, the trusts were 
 declared for the separate %ise o£ the wife, remainder to the issue, remain- 
 der, if no issue, to the survivor. At the joint solicitation of the husband 
 and wife the money was advanced to the husband, and, with the excep- 
 tion of 350?., was never repaid ; but the mother, who was the trustee, 
 had threatened to proceed for the remainder, when the daughter fell 
 upon her knees and begged her to desist, as she would release her from 
 all claims. For seven years after the husband's death the widow lived 
 with her mother, and made no demand, but several times offered to exe- 
 cute a release. The daughter then married again, and a bill was filed 
 against the mother to make good the money lost ; but Lord Hardwicke 
 said, " I think it comes very near the case of an infant, who, contracting 
 a debt during his minority, shows his consent to it by confirming it after 
 he comes of age, which shall effectively bind him, though it was voidable 
 at his election. So here a promise by the wife to release during the 
 coverture, it is certain, would not bind the wife, but if, after the death 
 of her *husband, she repeats the promise, it is a confirmation of ^^-„^-, 
 it, and good."(o) '- -" 
 
 It seems that a public and fluctuating body, as parishioners, may bo 
 
 {k) Walker v. Symonds, 3 Sw. 64, per Lord Eldon ; Hope v. Liddell, 21 Beav. 
 183; Brice v. Stokes, 11 Ves. 32G ; Macdonnell v. Harding, *7 Sim. 190: Broad- 
 hurst V. Balguy, 1 Y. & C. Ch. Ca. 16 ; Lincoln v. Wright, 4 Beav. 432 ; Black- 
 wood V. Borrowes, 2 Con. & Laws. 459 ; and see Thompson v. Simpson, 1 Dru. & 
 War. 459 ; Kent v. Jackson, 14 Beav. 384 ; Graham v. Birkenhead Co., 2 Mac. & 
 Gor. 146 ; Stone v. Godfrey, 5 De Gex, Mac. & Gor. T6. 
 
 (Z) See p. 742, supra ; Story v. Gape, 2 Jur. N. S. 706. 
 
 (w) Browne v. Cross, 14 Beav. 105, pp. Ill, 113 ; and see the cases at pp. 741, 
 742, 743, supra. 
 
 (n) Harden v. Parsons, 1 Ed. 145; and see Loader v. Clarke, 2 Mac. & Gor. 382. 
 
 (o) Smith V. French, 2 Atk. 243.
 
 614 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 bound by acquiescence.(p) But it is almost unnecessary to repeat, that 
 acquiescence cannot be objected against a class of persons, as parish- 
 ioners or creditors, icith the same de<jree of force as against a single indi- 
 vidual. (5) 
 
 Lastly, a cestui qne trust may preclude himself from his remedy against 
 the trustee by executing a formal release of the breach of trust, or giving 
 validity to the transaction by an express confirmation. {i-) And if the 
 cesttii que trust release the principal in a breach of trust or fraud, he 
 cannot afterwards proceed against the other parties who would have been 
 secondarily liable. (s) 
 
 But acquiescence, and release or confirmation, to have the effect we 
 have mentioned, must be understood to be accompanied with the follow- 
 ing conditions : — 
 
 1, As in the case of concurrence, the cestiu que trust must be sin juris, 
 and not a feme covert or infant, and in the case of infants, the court con- 
 tinues its protection even after they have attained twenty-one till such 
 time as they have acquired all proper information.!^^) However, a. feme 
 covert is clearly sui Juris as regards property settled to her separate use in 
 possession where there is no restraint against anticipation ; though she can- 
 not bind herself prospectively as to an estate which will stand limited to 
 her separate use upon a contingency which has not yet occurred, (w) 
 r*77Si Whether the separate estate *Qf a married woman who is re- 
 L -I strained from application can be affected by her acquiescence, 
 appears to be at present unsettled. In a late case(y) Lord Justice 
 Turner intimated his leaning to be in favour of the affirmative, though, 
 but for such high authority, the negative might have seemed the sounder 
 view. The language of Lord Justice Knight Bruce in the case alluded 
 to, was more guarded. But, of course, the restraint on anticipation can 
 impose no fetter as respects income accrued due before the acts of acqui- 
 escence relied upon.(i6-) 
 
 2. The cestid que trust must be fully cognisant of all the facts and 
 circumstances of the case.(x) 
 
 (p) See Corporation of Ludlow v. Greenhouse, 1 Bligh, New Eei>. 92 ; In re 
 Chertsey Market, 6 Price, 280, 284; Edenborough v. Arciibishop of Canterbury, 
 2 Russ. 105, 108; Attorney-General v. Scott, 1 Yes. 415; Attorney- General v. 
 Cuming, 2 Y. & C. Ch. Ca. 150. 
 
 (q) See supra, p. 471. 
 
 (r) Blackwood v. Borrowes, 2 Conn. & Laws. 459 ; French v. Hobson, 9 Yes. 
 103; Wilkinson v. Parry, 4 Russ. 272; Aylwyn v. Bray, cited in Small v. Att- 
 wood, 2 Y. & J. 517. 
 
 (s) Thompson v. Harrison, 2 B. C. C. 164 ; see Blackwood v. Borrowes, 2 Conn. 
 & Laws, 478. 
 
 {t) See Walker v. Symonds, 3 Sw. 69 ; Hicks v. Hicks, 3 Atk. 274 ; Osmond v. 
 Fitzroy, 3 P. W. 131 ; Hylton v. Hylton, 2 Yes. 547 ; Kilbee v. Sneyd, 2 Moll. 233 ; 
 March v. Russell, 3 M. & C. 42, 44 ; Bateman v. Davis, 3 Mad. 98 ; Wedderburn 
 V. Wedderburn, 4 M. & C. 41. 
 
 (u) Mara v. Manning, 2 Jon. & Lat. 311. 
 
 {v) Derbishire v. Home, 3 De Gex, Mac. & Gor. 80 ; Robinson v. Wheelwright, 
 6 De Gex, M. & G. 535 ; Wilton v. Hill, 15 L. J, N. S. (Ch.) 156. 
 
 (w) Rowley v. Unwin, 2 Kay & John. 138. 
 
 (x) Adams v. Clifton, 1 Russ. 297 ; Walker v. Symonds, 3 Sw. 1 ; Randall v. 
 Errington, 10 Yes. 423; Buckeridge v. Glasse, Cr. & Ph. 126; Bennett v. Colley, 
 2 M. & K. 232, per Lord Brougham; and see Earl of Chesterfield v. Janssen, 2 
 
 1
 
 REMEDIES OF THE CESTUI QUE TRUST. 615 
 
 3. The cestui que trust must not only be acquainted with i\\Q facts, 
 but be also apprised of the law, or how those facts would be dealt with 
 if brought before a court of equity. (^) 
 
 4. The release must not be wrung from the cestui que trust by distress 
 or terror, (s) 
 
 SECTION IV. 
 
 OF THE MODE AND EXTENT OP REDRESS IN BREACHES OF TRUST 
 COMMITTED BY TRUSTEES OP CHARITIES. 
 
 I. Of the mode of redress. 
 
 The regular and ordinary course of proceeding is by way of ri^i-j'jcn 
 *information(l) in the name of the attorney-general : the king is L J 
 parens pair ia', and it is the duty of his officer, the attorney-general, to 
 see that justice is administered to every part of his majesty's subjects. 
 Relators need not be personally interested. (a) They ai-e required merely 
 because the attorney-general, prosecuting a suit in the name of the crown, 
 would not be liable to costs, and unless some person were made responsi- 
 ble, proceedings might be instituted very oppressive to individuals. (?/) 
 
 In the reign of Elizabeth an act was passed, commonly called the 
 Statute of Charitable Uses,(c) by which the court of chancery was 
 empowered to issue commissious to certain persons, including the bishop 
 of the diocese, who were authorized, after summoning a jury of the 
 county where the property was situate, to inquire into any abuse or mis- 
 application of the trust estate. Many of these proceedings were so little 
 consonant with justice, and, on appeal to the lord chancellor, were found 
 at once so puzzling, and so far from accomplishing the object in view, 
 that at length the practice of issuing commissions fell into disuse, and 
 people again resorted to the original process by way of information. (cZ) 
 
 Ves. 146, 149, 152, 158; Roche v. O'Brien, 1 B. & B. 339, and the cases there 
 cited ; Bowes v. East London Water Works Company, 3 Mad. 375 ; M'Carthy v. 
 Decais, 2 R. & M. 615 ; Wedderburn v. Wedderburn, 2 Keen, 722 ; 4 M. & C. 41 ; 
 Munch V. Coclierell, 9 Sim. 339 ; 5 M. & Cr. 179 ; Broadhurst v. Balguy, 1 Y. & 
 C. Ch. Ca. 16. 
 
 (,?/) Cockerell v. Cholmley, 1 R. & M. 425, per Sir J. Leach ; and see Chester- 
 field v. Janssen, 2 Ves. 146, 149, 152, 158 ; Bowes v. East London Water Works 
 Company, 3 Mad. 384 ; M'Carthy v. Decaix, 2 R. & M. 615 ; iLarker v. Marker, 9 
 Hare, 16; Stone v. Godfrey, 5 De Gex, Mac. & Gor. 90 ; Burrows v. Walls, 5 De 
 Gex, M. k G. 254. 
 
 (z) Bowles V. Stewart, 1 Sch. & Lef. 209, see 226. 
 
 (a) Attorney-General v. Vivian, 1 Russ. 226. 
 
 {b) Corporation of Ludlow v. Greenhouse, 1 Bligh, N. R. 48, per Lord Redesdale. 
 
 (e) 43 Eliz. c. 4. 
 
 {d) Corporation of Ludlow \. Greenhouse, 1 Bligh, N. R. 61, 62, per Lord Re- 
 desdale. 
 
 (1) Where the management of no charity revenue is concerned, as in a suit in- 
 stituted by parishioners for the mere purpose of setting aside the nomination of a 
 clerk to the bishop by the trustees of the adowson, the attorney-general need not 
 be a party ; it is the simple case of cestuis que tries! calling upon the trustees to ex- 
 ercise the legal right ; and the suit should be not by information, but by bill. See 
 Attorney-General v. Parker, 1 Ves. 43; S. C. 3 Atk. 576; Attorney-General v, 
 Forster, 10 Ves. 335; Attorney-General v. Newcombe, 14 Ves. 1 ; Davis v. Jenkins, 
 3 V. & B. 151 ; Inhabitants of Clapham v. Hewer, 2 Vern. 387 ; Attorney-General 
 V. Cuming, 2 Y. & C. Ch. Ca. 149.
 
 616 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 After commissions had ceased to be issued, the legislature endeavoured 
 to provide a remedy, not as before, by creating a new jurisdiction, but 
 by oivino- liberty to proceed under the old jurisdiction in a summary 
 mod^'e The 52 Geo. 3, c. 101, commonly called Sir Samuel Romilly's 
 Act, and intituled " An act *to provide a summary remedy in 
 [*780] ^^gg'g of abuses of trusts created for charitable purposes," declared 
 that " in every case of a breach of any trust created for charitable pur- 
 poses, or whenever the direction or order of a court of equity should be 
 deemed necessary for the administration of any trust for charitable pur. 
 poses, it should be lawful for any two or more persons to present a peti- 
 tion to the chancellor, master of the rolls, or court of exchequer, praying 
 such relief as the nature of the case might require, such petition to be 
 heard in a summary way upon affidavits or such other evidence as should 
 be produced, the order made thereon to be final and conclusive, unless 
 appealed against to the house of lords within two years from the entry 
 thereof." And it was provided that " every petition should be signed 
 by the persons preferring the same in the presence of and be attested by 
 the solicitor or attorney concerned for the petitioners, and should be 
 allowed by his majesty's attorney or solicitor-general." 
 
 These enactments, though penned by a very able hand, have been 
 strongly reprobated as very loosely and obscurely worded — as tending 
 rather to increase than diminish the expense of the application — in short, 
 as having produced more mischief than benefit. " It was a wise saying," 
 observed Lord Redesdale, " that the farthest way about was often the 
 nearest way home, and he believed that these summary proceedings 
 would be not always the nearest, or at least not the best way home."(e) 
 
 Upon the construction of this statute the following points have been 
 resolved : — 
 
 1. Although the act authorises ani/ two or more persons to present 
 the petition, the words must be understood to mean any persons having 
 an interest :(/) and the court is bound to see not only that the peti- 
 tioners are possessed of a clear interest, but that they prove themselves 
 to be possessed of the identical interest they allege in their petition. (</) 
 
 2. It has been said that the body of the statute is to be governed by 
 r^-o-i-i ^the preamble, and therefore will not authorize a petition for any 
 L -I other purpose than relief against a breach of trust. (A) But this 
 narrow construction gives no force to the words in the act, " or tchen- 
 ever the direction or order of a court of equity shall he deemed necessary 
 for the administration of any trust for charitable jnirposes ;" and the 
 doctrine has since been called into question, and may be considered as 
 overruled, (i) 
 
 (e) Corporation of Ludlow v. Greenhouse, 1 Bligh, N. R. 49. 
 
 (/) In re Bedford Charity, 2 Sw. 518, per Lord Eldon. 
 
 (g) Corporation of Ludlow v. Greenhouse, 1 Bligh, N. R. 91, per Lord Eldon. 
 
 (h) Corporation of Ludlow v. Greenhouse, 1 Bligh, N. R. 66, 67, 81, per Lord 
 Redesdale; and see In re Clarke's Charity, 8 Sim. 42. 
 
 {i) In re Upton Warren, 1 M. & K. 410 ; In re Parke's Charity, 12 Sim. 332 ; In 
 re Manchester New College, 16 Beav. 610; In re Hall's Charity, 14 Bear. 115; 
 and see In re Slewringe's Charity, 3 Mer. 707 ; Ex parte Rees, 3 V. & B. 12 ; In re 
 Clarke's Charity, 8 Sim. 34; In re Phillipott's Charity, 8 Sim. 381 ; and the cases 
 collected in the note to In re Hall's Charity, 14 Beav." 120.
 
 REMEDIES OF THE CESTUI QUE TRUST. G17 
 
 3. The provision extends only top/tu'u and simple cases for the opinion 
 or direction of the court,(/.-) not where a question is to be discussed 
 adversely who are to be intrusted with the administration of the charity 
 estate,(Z) or who are entitled to the benefit of it,(m) or whether the 
 trustees or governors of the charity have or not, by the constitution of 
 it, a certain authority, as of removing a master,(n) or where any stranger 
 is interested(o) (for the right of a third person cannot be disposed of on 
 petition, Oj) or where the relief which is sought is directed against the 
 assets of a deceased trustee, (5) or where the object of the application is 
 not to have the existing charity regulated, *but to have the funds p-g2"| 
 diverted to some other charitable purpose. (r) The court has juris- L """J 
 diction, however, under the act, to settle a scheme of the charity,(.v) or 
 to alter a scheme previously settled by decree, (^) or to appoint new 
 trustees,(H) or where parishes have been divided to apportion the charities 
 amongst the districts,(f) or to direct a sale of the charity estate in a 
 proper case,(«7) and generally the court, as between the trustees and 
 cestuis que trust of the charity, exercises a discretion as to whether it 
 can put in operation the powers given by the act with benefit to the 
 charity, (a:) 
 
 4. The allowance " by the attorney or solicitor-general" must be con- 
 strued with reference to the previous law upon the subject, and must 
 therefore be taken to mean, not by the attorney or solicitor-general iudif- 
 
 [k) Corporation of Ludlow v. Greenhouse, 1 Mad. 92, reversed in D. P. 1 Bl. 
 N. R. 17, see G6, 81, 89 ; In re Pliillipott's Charity, 8 Sim. 381 ; Ex parte Brown, 
 Coop. 295 ; Ex parte Skinner, 2 Mer. 456, 457, per Lord Eldon ; and see In re 
 Chertsey Marlset, 6 Price, 277. 
 
 {I) In re West Retford Church and Poor-lands, 10 Sim. 101; In re Phillipott's 
 Charity, 8 Sim. 381. 
 
 {m) Corporation of Ludlow v. Greenhouse, 1 Bligh, N. R. 66; Re Manchester 
 New College, 16 Beav. 610; In re Clarke's Charity, 8 Sim. 34. 
 
 (?i) Attorney-General v. Corporation of Bristol, 14 Sim. 648 ; and see Man- 
 chester New College, 16 Beay. 610; Attorney-General v. East Retford Grammar 
 School, 17 Law Journ. N. S. Ch. 450; but see Re Fremington School, 10 Jur. 512 ; 
 11 Jur. 421 ; Re Phillips's Charity, 9 Jur. 959. 
 
 (0) Corporation of Ludlow v. Greenhouse, 1 Bligh, N. R. 66, per Lord Redes- 
 dale ; Ex parte Rees, 3 V. & B. 10; In re Manchester New College, 16 Beav. 610 ; 
 but see In re Upton Warren, 1 M. & K. 410. 
 
 {p) Corporation of Ludlow v. Greenhouse, 1 Bl. N. R. 93, per Lord Eldon. 
 
 {q) Ex parte Skinner, Wils. 15, per Lord Eldon ; In re Saint Wenn's Charity, 2 
 S. & S. 66. 
 
 (r) In re Reading Dispensary, 10 Sim. 118. 
 
 \s) In re Royston Free Grammar School, 2 Beav. 228 ; In re Berkhampstead 
 Free Grammar School, 2 V. & B. 134; In re Shrewsbury Grammar School, 1 Mac. 
 & Gor. 324 ; 1 Hall & Tw. 401. 
 
 {t) Attorney-General v. Bishop of Worcester, 9 Hare, 328. 
 
 {u) Bignold v. Springfield, 7 CI. & Fin. 71. 
 
 {v) In re West Ham Charities, 2 De Gex & Sm. 218. 
 
 (w) Re Parke's Charity, 12 Sim. 328. In Re Alderman Newton's Charity, 12 
 Jur. 1011 (the case of an exchange), and again, in Re Sowerby's Charity, Jan. 26, 
 1849, before the V. C. of England (the case of a willing purchaser) such orders 
 were made, but the court did not warrant the title ; but in Suir Island Female 
 Charity School, 3 Jon. & Lat. 171, the lord chancellor, notwithstanding Re Parke's 
 Charity, declined to make such an order. As to the jurisdiction of the court gene- 
 rally to sell charity lands, see supra, p. 503; Re Ashton Charity, 22 Beav. 288. 
 
 {x) In re Manchester New College, 16 Beav. 610. 
 
 April, 1858.— 40
 
 618 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 1 
 
 ferently, but by the attorney-general, when there is such an officer, and 
 in the vacancy of that office, by the solicitor-general. (y) 
 
 5 If the petition be not signed by the attorney-general or solicitor- 
 o-eneral, or if, after signature, it be not duly served, any order made by 
 tiie court will be an absolute nullity,(i) and the petition may be taken 
 off the file for irregularity. (a) 
 
 6. As the intention of the legislature was to guard the charity fund 
 from abuse, and with that view to prevent proceedings from being insti- 
 tuted, as they frequently were before, for no other reason than because 
 
 it was known the costs would *be paid out of the charity estate, 
 [*783] ^^^ attorney-general, or, in the vacancy of that office, the solicitor- 
 general, ought not to sanction the petition with his signature but upon 
 as much deliberation as if the relief were sought by way of informa- 
 tion. ^Z/) 
 
 7. The attorney-general by his allocatur, or allowance, of the petition, 
 is -not functus officio, and precluded from all future control, but must be 
 made a party to any subsequent proceedings under the petition, as he 
 would have been to all proceedings by way of information. (c) 
 
 8. The attorney-general, as representing the person of the king in his 
 character of j^arens patrifc, is bound to see justice done, not only to the 
 plaintiff in the petition, but also to the trustees and other defendants, and 
 therefore is not estopped by his allocatur of the petition from afterwards 
 correcting his judgment, but may support or oppose the views of the 
 petitioners, as in his discretion he may think fit.(f/) 
 
 9. When the jurisdiction of the court has been once attracted by the 
 petition, any subsequent order may be made upon motion without the 
 expense of any further petition. (e^ 
 
 10. No appeal lies to the lord chancellor from an order made by the 
 master of the rolls, but only to the house of lords directly.(/) 
 
 Under powers given by the 58 Geo. 3, c. 91, and 59 Geo. 3, c. 81, cer- 
 tain commissioners of inquiry into charities were appointed, and by the 
 59 Geo. 3, c. 91, it was enacted, that when it appeared to such commis- 
 sioners of inquiry that the directions or orders of a court of equity were 
 requisite for remedying any neglect, breach of trust, fraud, abuse, or 
 misconduct in the management of any trust created for charitable pur- 
 r*--o_i-i poses, &c., it should be lawful for the said commissioners, *to 
 L ' -I certify the particulars of such case to his majesty's attorney- 
 general, and thereupon it should be lawful for the attorney-general to 
 
 (?/) Corporation of Liidlo^v v. Greenhouse, 1 Bligh, N. R. 51, 52, 82, per Lord 
 Redesdale ; Ex parte Skinner, 2 Mer. 456, per Lord Eldon. 
 (z) Attorney-General v. Green, 1 J. & W. 305. 
 (ff) In re Dovenby Hospital, 1 M. & Cr. 279. 
 {b) Ex parte Skinner, 2 Mer. 456, per Lord Eldon. 
 
 (c) Corporation of Ludlow v. Greenhouse, 1 Bligh, N. R. 51, 65, 82, 83, per Lord 
 Redesdale; Attorney-General v. Stamford, 1 Phill. 737; and see In re Chertsey 
 Market, 6 Price, 271 ; Attorney-General v. Haberdashers' Company, 15 Bcav. 397. 
 
 (d) Corporation of Ludlow v. Greenhouse, 1 BL N. R. 43-52. 
 
 (e) In re Slewringe's Charity, 3 Mer. 707 ; Ex parte Friendly Society, 10 Yes. 
 287 ; In re Chipping Sodbury School, 5 Sim. 410. 
 
 (/) Re Royston Grammar School, 9 L. J.N. S. Ch. 250 ; and see Re Manchester 
 College, 16 Beav. 618.
 
 REMEDIES OF THE CESTUI QUE TT.UST. 619 
 
 apply to, or commence a suit in the Court of Cliancery, stating and set- 
 ting forth the neglect, breach of trust, fraud, abuse, or misconduct or 
 other cause of complaint or application, and praying such relief as the 
 nature of the case might require. The labours of these commissioners 
 of inquiry proved very valuable, and many informations were filed in 
 consequence of certificates made by them; but their powers, after being 
 frequently continued, expired in 1837. 
 
 By the late Charitable Trusts Act, 1853, great additional facilities 
 have been afi'orded for detecting and remedying breaches of trust in 
 charity matters. 
 
 Four commissioners are appointed, (y) to whom are confided powers of 
 inquiry(A) similar to those given to the commissioners appointed by the 
 acts of George 3, and also a similar power of certifying cases to the 
 attorney-general as fit for his interference. (i) 
 
 In cases of charities the incomes of which exceed 30/. per annum, the 
 same jurisdiction is given in charity cases to the chancery judges at 
 chamlDers as was before the act exercisable by the Court of Chancery or 
 the lord chancellor intrusted with the custody of lunatics in a suit regu- 
 larly constituted, or upon petition ; but the judge may direct an informa- 
 tion, bill, or petition to be filed or presented. (7^;) And the provisions of 
 the act in respect to charities whose incomes exceed 301. per annum, are 
 applicable to charities within the city of London, the income whereof is 
 less than oOl. per annum. (/) 
 
 Where the incomes of charities do not exceed 30/. per annum, the 
 District Courts of Bankruptcy and County Courts have the same juris- 
 diction as the Court of Chancery ;(j>i) and with the permission of the 
 charity commissioners, to be applied for within one month after the order 
 is made,(;i) an appeal lies to the Court of Chancery.(o) 
 
 The act contains a special provision that no suit or ^proceed- pi-.-rot:-, 
 ing not being an application " in any suit or matter actually L J 
 pcndiiuj," shall be commenced or taken without an authority previously 
 obtained from the charity commissioners. The construction of this 
 clause has given rise to considerable difficulty. It was at first held that 
 where money had been paid into court under the Trustee Belief Act, 
 10 & 11 Vict. c. 9G,(^>) or under a railway ac:t,(q) no such suit or matter 
 was pending as to obviate the necessity of previously obtaining the con- 
 currence of the charity commissioners, and further, that if a scheme had 
 been settled in the same charity under Sir S. Bomilly's Act, a petition 
 for a new application of part of the charity funds must have had the 
 previous sanction of the charity commissioners.(7') But it has since been 
 decided by the Court of Appeal, that in such cases the previous sanction 
 of the charity commissioners is unnecessary. The object of the provision 
 
 (g) Sect. 1. (/<) Sects. 9 to 14. 
 
 [i) Sect. 20. {k) Sect. 28. 
 
 (l) Sect. 30. (w) Sect. 32. 
 
 (n) Sect. 39. (o) Sect. 40. 
 
 (jo) Re Markwell's Legacy, 17 Be.iv. 618 ; In re Skeetes, 1 Jur. N. S. 1031; and 
 see Re Bingley School, 2 Drewry, 283. 
 
 (q) Re London Brighton and South Coast Railway Company, 18 Beav. 608. 
 {r) Re Ford's Charity, 3 Drewry, 324.
 
 (320 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 was merely to stop the enormous abuses in reference to proceedings in 
 charity matters, and the words suit or matter actualli/ pending mean 
 pending at the time of the application, and not at the passing of the 
 
 act.(.s) 
 
 The act contains other provisions(i') of a preventive rather than a 
 remedial kind. Thus by the 16th section, the board has power to enter- 
 tain applications for their opinion or advice, and persons acting in accord- 
 ance therewith are indemnified. 
 
 By the 48th section, lands belonging to any charity may be vested in 
 the secretary of the board as a corporation sole by the name of the trea- 
 surer of public charities ; and by the 51st section, annuities, stock, 
 shares, or securities held for any charity may be vested in the official 
 trustees of charitable funds ; and by the 54th and following sections, the 
 board have power to approve provisionally of new schemes of charities, 
 varying from the original endowment, but which are to be submitted 
 annually to parliament for its ratification. 
 
 r*-Qp-i % t'i'2 amendment act, IS & 19 Vict. c. 124, by the 15th *sec- 
 L ' J tion, the name of the treasurer of public charities is abolished, 
 and the secretary of the board for the time being is styled the official 
 trustee of charity lands ; and, by the 17tb and 18th section, the act pro- 
 vides for the appointment of the official trustees of charitable /2<7k/.s to 
 consist of the secretary of the board for the time being, and such other 
 persons as the lord chancellor may appoint who are to have perpetual 
 succession. 
 
 II. Of the extent of redress. 
 
 Under this head we propose to inquire only within what period of 
 time the account of mesne rents and profits directed against the trustee 
 guilty of the breach of trust will be restricted. 
 
 It has been stated in a former page, that to suits for relief in equity 
 there exists but three bars : first, a statute of limitations ; secondly, the 
 presumption of an act which, if done, is an answer to the plaintiff's 
 demand ; and, thirdly, the public or private inconvenience that would 
 arise from the court's interference. 
 
 1. It is clear that until the recent statute informations against trus- 
 tees of charities (the trust being not constructive but direct) were not 
 within the purview of the Statutes of Limitations. (n\ It was at one 
 time, indeed, held, that although the statute was not an absolute bar, 
 yet the court would be governed by the same period, as a good rule how 
 far back to carry the account ;(«;) but afterwards the doctrine was denied, 
 and the court professed to pay no attention whatever to the limitation of 
 any statute. (w) But now charities are Avithin the operation of the 3 & 4 
 
 {s) Re Lister's Hospital, 6 De Gex, M. & G. 184. 
 
 (t) See p. 504, supra, for powers of leasing, sale, &c., given by the Acts. 
 
 {u) Attorney-General v. Mayor of Exeter, Jac. 448, per Sir T. Plumer ; Attorney- 
 General V. Brewers' Company, 1 Mer. 498, per Sir W. Grant ; see Incorporated 
 Society v. Richards, 1 Conn. & Laws. 58 ; 1 Dru. & War. 258. 
 
 (v) Love V. Bade, Rep. t. Finch, 269 ; 2 Eq. Ca. Ab. 12, pi. 20. 
 
 (w) Attorney-General v. Mayor of Exeter, Attorney-General v. Brewers' Com- 
 pany, Incorporated Society v. Richards, ubi supra.
 
 REMEDIES OF THE CESTUI QUE TRUST. 021 
 
 ^Y. 4, c. 27, but are protected by the saving clause, wliicli excepts cases 
 of an express trust. (a,) 
 
 2. It was observed by Sir. T. Plumer, that presum2^fw7i also did not 
 apply to the case of trustee and cestui que trusf.{i/) *nowever, r^ygy-i 
 although the court cannot presume the cestui que trust to have L J 
 released the right to the estate, it may, in certain cases, presume the 
 employment of the funds in a particular manner to have been by the 
 direction or with the consent of the cesttii que trust. In Attorney-Gene- 
 ral V. Scott,(2) the parishioners had purchased an advowson by subscrip- 
 tion in the names of trustees ; and by a decree of the court the advowson 
 had been vested in twenty-five of the principal inhabitants, upon trust to 
 elect and present a proper clerk, the presentation to be approved by cer- 
 tain assistant preachers. The trustees, for a century, had been in the 
 habit of electing and presenting without such approbation ; and, the last 
 election being disputed as irregular for want of that formality, Lord 
 Hardwicke said, " The general disusage was evidence of the consent of 
 the parishioners to lay aside that part of the constitution as useless : he 
 would presume the common consent of the trustees and parishioners to 
 lay aside the custom, as the court would presume an ancient bye-law to 
 vary the constitution of a corporation." 
 
 3. The court may set a limit to the account on the ground of incon- 
 venience ; and this bar applies in its full force to cases of charities. << It 
 is the constant practice of courts of equity," said Sir Thomas Plumer, 
 " to discourage stale demands ; and this principle has often been acted 
 upon in cases of charities. When there has been a long period, during 
 which a party has, under an innocent mistake, misapplied a trust fund 
 from the laches and neglect of others, that is, from no one of the public 
 setting him right, and when the accounts have, in consequence, become 
 entangled, the court, under its general discretion, considering the enor- 
 mous expense of the inquiries, and the great hardship of calling upon 
 representatives to refund what families, acting on the notion of its being 
 their property, have spent, has been in the habit, while giving relief, 
 of fixing a period to the account. The result of the authorities is, that 
 in each case the court is bound to be guided by the particular circum- 
 stances. "(a) 
 
 *In Attorney-General v. The Corporation of Stafi"ord,(?>) the rjcyog-i 
 trustees in their answer, filed in 1811, had furnished accounts of L -^ 
 the trust estate from the year 1791, and Lord Gifi"ord saw no inconveni- 
 ence in decreeing: the account as far back as the trustees themselves had 
 stated it, but refused to extend it farther. 
 
 When no inconvenience can be no objected, the court will carry back 
 the account to the time of commencement of the misapplication, or at 
 least up to the period, when the plaintiff's title to the fund first accrued. 
 
 In Attorney-General v. The Mayor of Exeter,(c) the defendants 
 
 (z) See ante, 749, *750. 
 
 (y) Attorney-General v. Mayor of Exeter, ubi supra. 
 
 (2) 1 Ves. 413 ; and see In re Chertsey Market, 6 Price, 280. 
 
 (a) Attorney-General V. Mayor of Exeter, Jac. 448. (6) 1 Russ. 547. 
 
 (c) Jac. 443 ; 2 Russ. 362.
 
 622 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 admitted by their answer, that they had been in possession of the 
 chanty estate for the last 200 years, and had applied considerable parts 
 of the rents and profits to the purposes of the charity, and that the resi- 
 due of the rents and profits, the amounts of which would appear from 
 their books, they had always been ready and willing to apply; and Sir 
 W. Grant decreed an account of the rents and profits without any limi- 
 tation of time. Sir T. Plumer, before whom the cause was reheard, 
 observed, <' Suppose the case of trustees called upon to account for the 
 receipts of two or three hundred years, who admit the receipt, and say 
 they have conscientiously laid up the money, and that they have it ready 
 for the charity, or that they have invested it in the funds or in land, 
 unmixed with other money. What is the court to do ? Can the court 
 give to the trustees a part of the money or land which they acknowledge 
 not to be theirs? It is admitted to belong to the charity, and the 
 charity must have it. There is no difficulty from complicated accounts : 
 all the topics of hardship that may sometimes be urged fail of applica- 
 tion to this case." And his honour compelled the defendants to account 
 for the rents and profits for the whole period of 200 years. 
 
 lu Attorney-General v. The Brewers' Company,((/) an estate had been 
 vested in that company upon trust for the repairs of the Harrow Road ; 
 and, by an act of 19 Geo. 3, the proprietors of all lands chargeable with 
 r^-RQT ^^® ^^^^ repairs were directed *to pay the sums which should be 
 L -I so charged to certain trustees appointed by the act. About 
 1810, an information was filed in the name of the attorney-general, the 
 trustees under the act being the relators, for an account of the rents and 
 profits which the company had not applied. Sir W. Grant said, " It 
 was a point not yet decided, from what period a corporate body should 
 account in matters of trust; for to give the account only from six years 
 would be to create an analogy between a trust account and a common 
 acco«nt. However, the act which had been passed was not meant to 
 have a retrospective operation, and the trustees under that act could not 
 say they had a right to the accumulated fund from any antecedent 
 period ; and the attorney-general, suing at the relation of the trustees, 
 could have only such an account as the trustees themselves would be 
 entitled to ;" and therefore his honor directed the account to be taken 
 from the date of the act of parliament, a period of about thirty years. 
 
 In a recent suit against a corporation the account was carried back to 
 the last appointment of new trustees of the corporation, a period short of 
 ten years; and in another contemporaneous suit against the same corpo- 
 ration, but where the legal estate was not in trustees, but in the corpo- 
 ration itself, the court by analogy, and for want of another fixed point, 
 ordered the account to commence at the date of the last appointment of 
 new trustees in the first suit.(c) 
 
 In every suit, the limit of the account is regulated by the particular 
 circumstances. In some cases it is carried back to the period when the 
 corporation was first informed of the misapplication (as by the publication 
 of the charity commissioners' report;) in other cases it has been directed 
 
 {d) 1 Mer. 495. (e) Attorney-General v. Newbury, 3 M. k K. 
 
 C41
 
 REMEDIES OF THE CESTUI QUE TRUST. 623 
 
 from the time of filing the information, and in others from the date of 
 the decree.(/) 
 
 In some cases, where the defendant has been in strictness accountable 
 for a very long period, but, if the right were enforced, it would impose 
 great hardship, it has been referred to the attorney-general, as represent- 
 ing the charity, *to certify whether under the circumstances it r^-qn-i 
 might not be proper for the charity to accept a less sum.(^) L J 
 
 But where the trustees have diverted the charity funds from their 
 proper channel through mistake, it is now settled, that the court will not 
 call back any disbursements made before the filing of the information, (A) 
 or before the trustees had notice that the propriety of such application 
 would be called into question. (i) The court holds a strict hand over 
 trustees where there is any wilful misemployment ; but where the court 
 sees nothing but mistake, while it gives directions for the better manage- 
 ment in future, it refuses to visit with punishment what has been trans- 
 acted in time past. To carry back the account to the very commence- 
 ment of the misapplication would be the ruin of half the corporations in 
 the kingdom ;(/v) besides that to act on such a principle would be a great 
 discouragement to undertake the ofiice of trustees of charities. (/) 
 
 If an individual make an annual payment for a particular purpose out 
 of the profits of his estate, it is a reasonable presumption, from the strong 
 interest which he has to resist an unfounded demand, that he has inquired 
 the origin of the claim, and he is therefore fixed with implied notice of 
 all the circumstances that attend it ; but the same presumption cannot 
 be applied to corporations, because, having no immediate personal interest 
 in the application of the profits of the corporate property, they may, 
 without the imputation *of culpable negligence, adopt and follow rj^yqi-i 
 the practice of their predecessors. (m) '- -• 
 
 When the charity fund has been administered by a parish and misap- 
 plied, as a parish is a fluctuating body, and the present rate-payers ought 
 not to pay for past defaults, no retrospective account can be ordered. (h] 
 In the East Retford case,(o) before Sir J. Leach, the court, on proof 
 of a breach of trust by the corporation, directed an inquiry by the master 
 of what property the corporation was possessed not devoted to special 
 
 (/) See Attorney-General v. Drapers' Company, 6 Beav. 390. 
 
 {g) Attorney-General v. Mayor of Exeter, 2 Russ. 370; and see Attorney-Gene- 
 ral v. Corporation of Carlisle," 4 Sim. 279; xUtoruey-General v. Brettingham, 3 
 Beav. 91 ; Attorne}--General v. Pretyman, 4 Beav. 462. 
 
 {h) Attorney-General v. Corporation of Exeter, 2 Russ. 45 ; afSrmed 3 Russ. 
 395 ; Attorney-General v. Dean of Christchurch, Jac. 474, 637 ; S. C. 2 Russ. 321 ; 
 Attorney-General v. Rigby, 3 P. W. 145; Attorney-General v. Caius College, 2 
 Keen, 150 ; Attorney-General v. Drapers' Company, 4 Beav. 67 ; Attorney-General 
 V. Christ's Hospital, ib. 73 ; and see Attorney-General v. Newbury, 3 M. & K. 150. 
 
 (i) Attorney- General v. Burgesses of Eas't Retford, 2 M. & K. 35, see 37 ; and 
 see Attorney-General v. Corporation of Berwick-upon-Tweed, Taml. 239 ; Attor- 
 ney-General V. Caius College, 2 Keen, 150. 
 
 {k) Attorney-General v. Burgesses of Retford, 2 M. & K. 37, per Sir J. Leach. 
 
 [l) Attorney-General v. Corporation of Exeter, 2 Russ. 54, per Lord Eldon. 
 
 (m) Attorney-General v. Burgesses of East Retford, 2 M. & K. 38, per Sir J. 
 Leach. 
 
 {n) Ex party Fowlser, 1 J. & "VV. 70 ; and see cases cited ib. 73, note (a). 
 
 (o) 2 M. & K. 35.
 
 624 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 purposes, with the view that compensation might be made to the charity 
 by an immediate sale ; but the case upon that point was subsequently 
 appealed against and reversed, as contrary to principle,(p) and the plain- 
 tiflF must now confine himself to a sequestration in the ordinary course. 
 
 [*792] 
 
 ^CHAPTER XXVII. 
 
 MAXIMS OP EQUITY FOR SUSTAINING THE TRUE CHARACTER OF THE 
 TRUST ESTATE AGAINST THE LACHES OR TORT OF THE TRUSTEE. 
 
 Besides the several rights and remedies which have just been the 
 subject of discussion, the court, with the view of keeping the trust estate 
 in its regular channel, and sustaining its proper character, whether of 
 realty or personalty , against the laches or other mishckaviour of the 
 trustee, has found it necessary to establish two maxims, which we now 
 proceed to examine : viz., first, What ought to be done shall be considered 
 as done •,[a\ and, secondly, The act of the trustee shall not alter the nature 
 of the cestui' s que trust estate, (i) 
 
 SECTION I. 
 
 WHAT OUGHT TO BE DONE SHALL BE CONSIDERED AS DONE. 
 
 '' The forbearance of the trustees," said Sir J. Jekyll, " in not doing 
 r*7QRT ^^^^^ '^^ ^^^ their office to have done, shall in no sort prejudice 
 L J *the cestuis que trust, since at that rate it would be in the power 
 of trustees, either by doing or delaying to do their duty, to affect the 
 right of other persons ; which can never be maintained. Wherefore the 
 rule in such cases is, that what ought to have been done shall be taken 
 as done, and a rule so powerful it is as to alter the very nature of things, 
 to make money land, and, on the contrary, to turn land into money. 'Vc^ 
 And Lord Macclesfield, in the case of a bequest to a trustee for purchas- 
 ing lauds, observed, " If the purchase had been made it must have gone 
 to the heir, but if the trustee, by delaying the purchase, might alter the 
 right, and give it to the executors, this would be to viake it the icill of 
 
 (p) 3 M. & Cr. 484 ; and see Attorney-General v. Newark-upon-Trent, 1 Hare, 
 395. 
 
 (a) Walker v. Denne, 2 Ves. jun. 182, per Lord Loughborough ; Foone v. Blount, 
 Cowp. 467, per Lord Mansfield; Holland v. Hughes, 16 Ves. 114, per Sir W. 
 Grant; Gaskell v. Harman, 11 Ves. 507, per Lord Eldon ; Stead v. Newdigate, 2 
 Mer. 530, per Sir W. Grant; Pulteney v. Darlington, 1 B. C. C. 237, per Lord 
 Thurlow ; Burgess v. Wheate, 1 Ed. 186, per Sir T. Clarke ; Lechmere v. Earl of 
 Carlisle, 3 P. W^ 215, per Sir J. Jekyll ; Fitzgerald v. Jervoise, 5 Mad. 29, per Sir 
 J. Leach ; Earl of Buckingham v. Drury, 2 Ed. 65, per Lord Hardwicke ; Guidot 
 V. Guidot, 3 Atk. 256, per Lord Hardwicke ; Crabtree v. Bramble, lb. 681, per 
 eundem ; Trafford v. Boehm, lb. 446, per etmdem; &c. 
 
 (b) Philips V. Brydges, 3 Ves. 127, per Lord Alvanley: Earlom v. Saunders, 
 Amb. 242, per Lord Hardwicke ; Selby v. Alston, 3 Ves. 341, per Sir R. P. Arden. 
 
 (c) Lechmere v. Earl of Carlisle, 3 P. W. 215.
 
 MAXIMS OF EQUITY, ETC. 625 
 
 the trustee, and not the will of the testator, lohich icoiild he very nnrea- 
 sonahle and inconvenient." {cV^ 
 
 Upon these grounds it is in equity a universal rule, tliat money direct- 
 ed to be laid out in tlie purchase of land, or land directed to be sold 
 and turned into money, shall be considered as that species of property 
 into which it is directed to be converted ; and this, in whatever manner 
 the direction is given, whether by will, by way of contract, by marriage 
 articles, by settlement, or otherwise, and whether the money has been 
 actually deposited in the hands of trustees for the purpose, or is only 
 covenanted to be paid, whether the land has been actually conveyed, or 
 is only agreed to be conveyed. (e) 
 
 Thus, if money be stipulated to be laid out in land to be settled on a 
 feme covert in fee or in tail, the husband of the/eme is entitled to his 
 curtesy, though no purchase be actually made in the lifetime of the wife ; 
 and he will be decreed the interest of the money until a purchase can 
 be found ; and when the investment has been made, he will have a life 
 estate in the lands. (/) 
 
 Whether under similar circumstances a widow could, before the late 
 Dower Act, have established her title to dower, was much questioned. 
 It was admitted she was not dowable of a ^mere trust estate ;(</) r^yg^-i 
 but, where money was to be converted into land, and the interest L J 
 was only prevented from being legal through the forbearance of the trus- 
 tee, it was contended that the rights of parties ought not to be varied by 
 the neglect of the person who is merely the nominal instrument. 
 
 " Marriage," said Sir J. Jekyll, " is in its nature a civil, and in its 
 celebration a sacred contract, and the obligation is a consideration mov- 
 ing from each of the contracting parties to the other, and from this 
 obligation arises an equity to the wife in several cases without any pre- 
 vious agreement, as to make good a defective execution of a power, or 
 defective conveyance, or supply the defect of surrender of copyhold estate : 
 in all which the court relieves the wife, and makes a provision for her, 
 where it is not unreasonable or injurious to others. "(A) xVnd he after- 
 wards added, << I cannot but wonder how it ever came to be thought that 
 a tenant by the curtesy was entitled to relief in equity more or fiirther 
 than a dowress, and particularly that a tenancy by the curtesy may be 
 of a trust estate, but not dower, which is no less than a direct opposition 
 to the rule and reason of the law, which allows doicer of a seisin in 
 law, but not a tenancy hy the cxirtesy, because the wife cannot gain an 
 actual seisin, but the husband may; which reason holds in a trust estate; 
 for the wife cannot gain or compel a trustee to convey the legal estate 
 to the husband, but the husband himself may; therefore, if any distinc- 
 tion is to be made, dower, one would think, ought to be preferred to 
 curtesy."(V) If the wife, therefore, had this general eijuity, why might 
 she not come into chancery, and plead the rule of the court that what 
 
 (d) Scudamore v. Scudamore, Pr. Ch. 543. 
 
 (e) Fletcher v. Ashburncr, 1 B. C. C. 499 ; and see Wheldale v. Partridge, 5 
 Ves. 396. 
 
 (/) Sw-eetapple v. Bindon, 2 Vern. 536; Cunningham v. Moody, 1 Yes. 174; 
 
 Dodson V. Hav, 3 B. C. C. 405. {g} Altered by the late Act, 3 & 4 W. 4, c. 105. 
 
 (/*) Banks v. Sutton, 2 P. W. 704. (i) Banks v. Sutton, 2 P. W. 706.
 
 62G LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 ought to be done should be taken as done— that, as the equitable estate 
 should have been made a legal estate, it ought to be so considered in 
 respect of dower? 
 
 The opinion of Lord Hardwicke was on more than one occasion 
 expressed adversely to the wife's claim ^[k) but there were several authori- 
 ties in favour of the dower. (^) 
 
 *Now, by a late act (except where the marriage was celebrat- 
 [*795] ^^ ^^ ^^ before the 1st day of January, 1834,) the legislature 
 has o-iven dower out of every species of trust estate : subject to be defeat- 
 ed, however, by any declaration of intention on the part of the hus- 
 band. («i) 
 
 Upon the principle under discussion it has also been argued, that if 
 money be articled, or directed, to be laid out in land to be settled on a 
 person in fee, if the cestui que trust die without heirs, the money shall, 
 as land, escheat to the lord: but between dower and escheat there is, it 
 is submitted, this manifest distinction, that a widow claims through her 
 husband, and has a general equity, which gives her locus standi in court ; 
 but a lord by escheat comes under no head of equity — is entirely a stran- 
 ger to the trust, claiming by title paramount of his own.(«) The pre- 
 tence for his claim is, that the operation of the rule so absolutely con- 
 verts the equitable into a legal estate, that all the incidents, that would 
 have belonged to the legal, must be considered in chancery as attached 
 to the equitable ; but the rule was not meant to subvert the nature of a 
 trust, but to be subservient to it — not to benefit third persons, but to 
 protect the interest of parties privy to the trust. And of this opinion 
 appears to have been Sir T. Clarke, in the case of Burgess v. AVheate.(o) 
 There A., seised ex parte paterna, conveyed the estate to trustees in 
 trust for herself, her heirs, and assigns, and died without heir of the 
 paternal line, but leaving an heir of the maternal ; and it was argued in 
 favour of the heir ex p>arte inalernd, that, as the cestui que trust might at 
 any time have called upon the trustees to convey, and equity looked upon 
 what ought to have been done as done, the court would by a fiction con- 
 sider the conveyance of the legal estate as actually executed; and then, 
 in default of heirs of the paternal line, the lauds would descend to the 
 heir ex p)arte maternd. But the master of the rolls said, " Had such a 
 r*7Qn conveyance been executed, it would have *been like a feoffment 
 L J and refeolfmeut, and have made A. seised of a new use ; but, as 
 this was not done, the consequences insisted on will not follow, for 
 nothing is looked upon in equity as done but what o^ight to have been 
 done — not what might have been done ; nor icill equity consider things 
 in that light in favour of everyhody ^ hut only of those ivho had a right to 
 pray it might he done. The rule is, that it shall he either between the 
 
 (k) See Cunningham v. Moodj. 1 Ves. 1*76 ; Crabtree v. Bramble, 3 Atk. 687. 
 
 (Z) Fletcher V. Robinson, cited Dudley v. Dudley, Pr. Ch. 250; S. C. stated 
 from R. L. in Banks v. Sutton, 2 P. W. V09; Otway v. Hudson, 2 Vern. 583; 
 Banks v. Sutton, 2 P. W. 700 ; In re Lord Lismore, 1 Hog. 177. 
 
 {m) See p. 62G, supra. 
 
 (n) Walker V. Denne, 2 Ves. jun. 185, per Lord Loughborough; Henchman v. 
 Attornej'-General, 3 M. & K. 494, per Lord Brougham. 
 
 (o) 1 Ed. 177; S. C. 1 W. Blackst. Rep. 123.
 
 MAXIMS OF EQUITY, ETC. 627 
 
 parties icJio stipulate tvliat is to he done, or tliose who stand in their 
 place. A. never prayed a conveyance, and one cannot tell whether she 
 ever would, and the maternal heir is not to be considered as a privy in 
 blood, but a mere stranger."(^) As the lord by escheat claims not in 
 privity, it results that, according to Sir T. Clarke's construction of the 
 rule, he has no title to a suhpana. 
 
 As money to be laid out in land is regarded as land, it could not before 
 the late Wills Act have been devised by an infant, though of sufficient age 
 to bequeath personal estate-;(g') and, for the same reason, it will pass by 
 the cestui' s que trust will under the general description of all the testator's 
 
 lands,(r) or of all his lands in the county of or ehewhere,{s) though 
 
 in the latter case it may very plausibly be contended, that the testator 
 could not have referred to money, but must have alluded to something 
 that possessed a local character. 
 
 So money to be converted into land is bound by a judgment,(^) but 
 was never accounted personal assets, and therefore was not, until the 
 late act,(«) liable to the payment of simple-contract debts. (i') 
 
 *So a gift by a parent (a freeman of the city of London) to a r^'jn-j-i 
 child of money to he laid out in land was considered a purchase L J 
 by the father, and a donation of the estate, and consequently under the 
 law existing before the recent aet,(2«) the child was not bound, before 
 receiving his orphanage share, to bring the purchase into hotchpot. (.r) 
 
 With respect to the heir of the person upon whom the lands, when 
 purchased, are directed or agreed to be settled, it is necessary, for ascer- 
 taining his rights, to distinguish between the cases where the real repre- 
 sentative, claims as against a stranger, and where he claims as against 
 the executor of his own ancestor. 
 
 It appears to be perfectly established that the heir is entitled to the 
 money as land, if he seek to enforce his equity against a stranger. Thus, 
 1. If a sum of money be heqiieathed to be laid out in a purchase of lands 
 to be settled to the use of A. and his heirs, and A. die before a purchase 
 has been obtained, the money is the property, not of the executor, but of 
 the heir of A.(^) 2. If on the marriage of A. money be actually depo- 
 
 Cp) 1 Ed. 186. 
 
 (g) Earlom v. Saunders, Amb. 241. By the late act, 1 W. 4, and 1 V. c. 26, 
 an infant cannot make a will even of personal estate. 
 
 (r) Guidot v. Guidot, 3 Atk. 256, per Lord Hardwicke ; Rasliley-v. Masters, 1 
 Ves. Jun. 201 ; S. C. 3 B. C. C. 99 ; Green v. Stephens, 17 Ves. 77 ; Biddulph v. 
 Biddulph, 12 Ves. 161. 
 
 («) Lingen v. Sowray, 1 P. W. 172 ; Guidot v. Guidot, 3 Atk. 254. 
 
 {!) Frederick v. Aynscombe. 1 Atk. 392. (w) 3 & 4 W. 4, c. 104. 
 
 (y) Whitwick v. Jerrain, cited Baden v. Earl of Pembroke, 2 Vern. 58 ; Law- 
 rence V. Beverley, cited lb. 55 ; S. 0. 2 Keb. 841 ; Fulham v. Jones, cited Pul- 
 teney v. Darlington, 7 B. P. C. 550 ; Foone v. Blount, Cowp. 467, per Lord Mans- 
 field. 
 
 (ic) 19 & 20 Vict. c. 94. 
 
 (x) Hume v. Edwards, 3 Atk. 450 ; Annand v. Honeywood, 1 Vern. 345. 
 
 (y) Scudamore v. Scudamore, Pr. Ch. 543. Abbott v. Lee, 2 Vern. 284, at first 
 sight appears contra, but it seems from the Registrar's book that the direction for 
 conversion was not imperative, but to be at the discretion of the testator's execu- 
 tors. Had the money been absolutely converted into la?id, the ultimate remainder 
 by failure of issue of the surviving daughter would have resulted to the executors 
 of the testator, but, as money to be converted and settled in tail upon a discretion
 
 G28 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 sited in the hands of trustees, either by A. himself or by a stranger, to 
 be laid out in a purchase of lands to be settled to the use of A. for life, 
 remainder to his wife for life, remainder to the issue in tail, remainder 
 to A. in fee, and A. die without issue, his heir, and not his executor is 
 entitled. (z) 3. If on the marriage of A. there be a covenmit on the part 
 of B. to lay out money in a purchase of lauds to the above uses, and A. 
 die without issue, his heir takes the benefit of the covenaut.(rt) 
 
 *But if the heir have to enforce his claim, not against a 
 L ' J stranger, but against the personal representative of his own ances- 
 tor, as if A. on his marriage covenant to lay out money in a purchase of 
 lands to be settled to the use of himself for life, remainder to his wife 
 for life, remainder to the issue in tail, remainder to his own right heirs, 
 in this instance the question whether the heir can call upon the executor 
 for the money must depend upon this further distinction : — 
 
 1. If at the death of A. there be an equitable interest in the fund out- 
 standing in another, as a life estate in the wife, or an estate tail in the 
 issue, then the real quality of the money is sustained and continued by 
 that right, and the heir of A. is entitled to call upon A.'s executor ;(i) 
 and if there be such an outstanding claim at the death of the ancestor, 
 the circumstance that the heir institutes his suit during the subsistence 
 of that claim, or after its determination, seems to be perfectly imma- 
 terial, (fi) 
 
 In Walker v. Denne(rZ) Lord Loughborough expressed some doubt 
 upon this doctrine. " Is there," he said, " any case where the heir has 
 filed a bill merely as such, and has had money paid to him, because it 
 was directed to be laid out in land ? The idea is commonly entertained, 
 but there are doubts about it. I do not recollect any case where the 
 heir has said, The money ought to be laid out — all the particular objects 
 are gone, and I as heir claim the money as land for my benefit. Upon 
 that I doubt what gives the heir a title to a suhpoena in this court : 
 between the heir and personal representative their rights are pure legal 
 rights : chance decides what shall be real, what personal : neither has a 
 scintilla of equity to make the property that which it is not in fact." 
 To this reasoning of Lord Loughborough it may be replied, that, when it 
 is said there is no equity between the real and personal representatives, 
 the meaning is no more than this — that what is real estate at the death 
 r*7QQi ^^ *^^^ ancestor will go the heir, *and what is personal estate at 
 L J the death of the testator will go to the executor ; but, for the 
 purpose of determining what is real and what is personal estate, the court 
 is guided, not by the legal nature of the property at the death of the 
 
 which was not exercised, it belonged to the administrators of the legatee, as was 
 decreed by the court. See the case stated from Reg. Lib. App. No. IL 
 
 (z) Disher v. Disher, 1 P. W. 204 ; Chaplin v. Horner, lb. 483 ; Edwards v. 
 Countess of Warwick, 2 P. W. 1 71 ; and see Lechmere v. Lechmere, Cas. t. Talb. 90. 
 
 (a) Knights v. Atkyns, 2 Vern. 20. 
 
 (b) Kettleby v. Atwood, 1 Vern. 298; re-heard, lb. 471 ; Lancy v. Fairechild, 
 2 Vern. 101 ; Chaplin v. Horner, 1 P. W. 483 ; Lechmere v. Earl of Carlisle, 3 P. 
 W. 211 ; affirmed, Cas. t. Talbot, 89 ; Oldham v. Hughes, 2 Atk. 452. 
 
 (c) See Chaplin v. Horner, 1 P. W. 483 ; Lechmere v. Lechmere, Cas. t. Talb. 80. 
 
 (d) 2 Ves. jun. 175, 17G, 183 ; and see Oxenden v. Lord Compton, lb. 70 ; Lord 
 Compton V. Oxenden, lb. 265.
 
 MAXIMS OF EQUITY, ETC. 629 
 
 owner, but, as appears in numerous instances, by the stamp and character 
 impressed upon it in consideration of a court of equity. Thus if a mort- 
 gagee in fee die, the mortgage being regarded as a mere security for part 
 of the mortgagee's personal estate, the executor may call upon the heir 
 for a conveyance of the land. On the other hand, if the mortgagor die, 
 the heir of the mortgagor may call on the executor to discharge the incum- 
 brance out of the personal assets. So if a person contract for the sale of 
 an estate, and die before the completion of the sale, the legal fee descends 
 upon the heir, but the purchase-money passes to the executor ; and, on 
 the other hand, if a person contract for the purchase of an estate, and 
 die, the executor must pay the money, but the heir is entitled to the 
 purchase. Thus, in the words of Lord Talbot, " where the dispute is 
 between the two representatives of the deceased, the one of his real, the 
 other of his personal estate, the heir's being but a volunteer in regard to 
 his ancestor will not exclude him from the aid of the court, for though 
 the question is between two volunteers, the court will determine which 
 way the right is, and will decree accordingly. "(t) "I am disposed," 
 said Lord Eldon, " to say, notwithstanding the opinion of Lord Kosslyn 
 in Walker V. Denne, and some other modern authorities, that if the instru- 
 ment be taken to impress a fund with real qualities immediately upon the 
 execution, in the question between the heir and executor, the money 
 being once clearly and plainly impressed with real uses as land, and one 
 of those uses being for the benefit of the heir, it will remain for his bene- 
 fit, and it is not correct to say the court does not interpose between volun- 
 teers, if they give to the executor that money which the instrument has 
 given to the heir."(/) And Sir W. Grant to the same effect observed, 
 " There is no weight in the circumstance that the property is found in 
 the shape of money or land, *for the character is to be/onnd in r^gQQ-j 
 the deed. The opinion of Lord Rosslyn that property was to be L J 
 taken as it happened to be at the death of the party from whom the rep- 
 resentatives claimed, was much doubted by Lord Eldon, who held, in 
 which Ii^erfecthj concur, it must be considered as being in the state in 
 which it ought to he. Lord Rosslyn's rule was new, and not according 
 to prior cases. "(//) 
 
 2. But if A. die, leaving neither wife nor issue, so that, to use the 
 technical expression, the money is "at home," that is, A. at the time of 
 his death is the absolute and exclusive owner, and there is no outstanding 
 right in another person, in this case the real quality of the money has 
 become merged and extinguished, and on the death of A. the heir has no 
 equity to call upon the executor. To keep on foot the notional conver- 
 sion of money into land, it is evident there must be a right in some one 
 to insist upon the actual conversion; but if A. be in possession of 20,000^. 
 upon trust to lay out in a purchase of lands to be settled to the use of 
 himself and his heirs, the right and the thing both centring in the same 
 person, there is nobody to sue, and it follows the action is extinguished. (A) 
 
 (e) Lechraere v. Lecbmere, Cas. t. Talb. 00. 
 
 (/) Wheldale v. Partridge, 8 Yes. 235. 
 
 {g) Thornton v. Hawley, 10 Yes. 138 ; Kirkman v. Miles, 13 Yes. 339. 
 
 (/*) See Pulteney v. Darlington, 1 B. C. C. 237.
 
 630 LE^YIX ON THE LAW OF TRUSTS, ETC. 
 
 The decision in the much litigated case of Chichester v. BickerstaflP,(i) 
 amounted probably to no more'than this. On the marriage of Sir J. 
 Chichester with the daughter of Sir C. Bickerstaff, the latter agreed to 
 pay 1500?. by way of portion, which, together with 1500?. more to be 
 advanced by Sir John Chichester within three years after the marriage, 
 was to be invested in lands to be settled on Sir John for life, remainder 
 to his wife for life, remainder to the issue in tail, remainder to Sir John 
 in fee. Sir John and his lady, within one year after the marriage, both 
 died without issue, the husband having survived. Sir John by his will 
 made Sir C. BicJcerstaff his executor, and bequeathed the residue of his 
 personal estate, after payment of his debts, &c., to Frances Chichester, 
 his sister. The heir-at-law of Sir John brought his bill against Sir 
 Charles to *compel him to pay the 1500?., insisting that by virtue 
 L J of the marriage articles the money ought to be looked upon as 
 land, and therefore belonged to him as heir. Lord Somers said, " This 
 money, though once bound by the articles, yet when the wife died with- 
 out issue became free again, and was under the power and dispose of Sir 
 John, as the land would likewise have been in case a purchase had been 
 made pursuant to the articles, and therefore would have been assets to a 
 creditor, and must have gone to the executor or administrator of Sir 
 John ; and this is much stronger where there is a residuary legatee ;" 
 and therefore dismissed the bill. Then follows what is apparently the 
 note of the reporter, viz. that '< money shall in many cases be considered 
 as land when bound by articles in order to a purchase, but whilst it 
 remains still money, and no purchase made, the same shall be deemed as 
 part of the personal estate of such person, who might have aliened the 
 land in case a purchase had been made." 
 
 In this case it has been commonly, but surely without reason supposed, 
 that the suit of the plaintiff was for the 1500?. which Sir Charles had 
 articled to pay, and in consequence of this misconception, the authority 
 of the decision tas repeatedly been called into question. Thus Sir J. 
 Jekyll, overlooking the very material circumstance that Sir Charles had 
 been appointed the executor of the testator, observes, " It is remarkable 
 with respect to this case, that the wife died within three years after the 
 marriage, during which period the purchase was to be made, so that the 
 time was not come within which the money was to be laid out ; and till 
 then it continued money ; and possibly the court had some evidence to 
 induce them to believe, that Sir John Chichester looked on the money as 
 personal estate; and if this does not distinguish it from other cases, I 
 doubt, in opposition to so many decrees, the resolution here given icould 
 hardly he maintainahle ." [h) And Lord Talbot was apparently under 
 the same misapprehension, for he observes, "Had the money in the case 
 before me been deposited in the hands of trustees, it must have been 
 looked upon as real estate, and the heir have been entitled. This seems 
 r*Sn91 ^^ '^^'^ granted, and no authority against it but what has been 
 L "^J collected from the case of Chichester v. BickerstaflP. It is 
 probable the court went upon some reason, which induced it to think that 
 
 (0 2 Vern. 295; S. C. cited Pulteney v. Darlington, f B. P. C. 554. 
 [k) Lechmere v. Carlisle, 3 P. W. 221.
 
 MAXIMS OF EQUITY, ETC. 631 
 
 Sir John looked upon that money as personal estate, for otherwise the 
 autliority of that case is not to be maintained, leing contrary to all 
 former reso/nfions."(J) But Lord Thurlow viewed the case in a different 
 'light, and evidently considered the 1500/. sought hy the hill of the plaintiff 
 to°be the 1500/. articled to be paid by the testator himself, and so payable 
 out of his assets in the hands of Sir John Bickcrstatf, his executor. 
 " Where," said his lordship, " a sum of money is in the hands of one 
 without any other use hut for himself, it will be money, and the heir 
 cannot claim, like the case of Chichester v. Bichu-staff, against which I 
 think there is no judgment, though there are a number of opinions. I 
 know no better authority than that case."(m) 
 
 The registrar's book has been searched, but no decree can be found. 
 It appears, however, from a motion in the cause for dissolving an injunc- 
 tion, that the circumstances of the case were as follows : — Sir Charles 
 Bickerstaff had brought an action at law against the plaintiff, and had 
 obtained judgment for a certain sum upon a balance of accounts. Upon 
 this the plaintiff instituted a suit in equity for staying the proceedings 
 at law, alleging, that Sir Charles stood indebted to him in the sum of 
 3000/., to which the plaintiff was entitled as heir-at-law of Sir John, 
 under Sir John's marriage articles. It was ordered by the court that 
 judgment should be entered up, but execution should be stayed till the 
 cause should be heard the Easter term following. As Vernon, the 
 reporter, speaks only of one sum of 1500/., to which the executor was 
 declared entitled, it is probable the other sum was adjudged to the heir, 
 a decision that would in every respect be conformable to principle ; for 
 while the 1500/., covenanted to be paid by Sir John himself was, by the 
 death of his wife without issue in his lifetime, " at home," and therefore 
 set free from the articles, the other sum of 1500/. which was covenanted 
 to be paid by Sir Charles, was outstanding in *the hands of Sir r*gQ3-i 
 Charles as trustee, and would therefore retain the character of L -I 
 real estate until some act by Sir John to remove that impression. 
 
 To the principle under consideration must be referred the case of Pul- 
 teney v. Darlington. («) Henry Guy the testator appointed Lord Bath, 
 Taylour, and Lake, his executors, and devised to them, their heirs, and 
 assigns, all his estates at Earl's Court, and certain freeholds and copy- 
 holds at Muswell Hill, upon trust to sell, and directed that, after 
 payment of his debts and legacies, all such moneys or other personal 
 estate as should remain in the hands of the executors, or be raised by sale 
 of the devised estates, should be laid out in the purchase of lands to be 
 settled to the use of Lord ]3ath for life, remainder to the first and other 
 sons in tail, remainder to Greneral Pulteney for life, remainder to tlie first 
 and other sons in tail, remainder to Daniel Pulteney for life, remainder 
 to the first and other sons in tail, with a remainder in fee to the father 
 of Lord Bath, which afterwards became vested in Lord Bath himself. 
 The testator died in 1710. Daniel died without issue in the lifetime of 
 Lord Bath and General Pulteney. Lord Bath had issue, a son, who 
 died, without having disturbed the settlement, in the lifetime of his 
 
 (l) Lechmerc v. Lecbmere, Cas. t. Talb. 90. 
 
 (m) Pulteney v. Darlington, 1. B. C. C. 238. (n) 1 B. C. C. 223.
 
 032 LEWIN ON THE LAW OF TRUSTS, ETC 
 
 father. General Pulteney never had any issue. Lord Bath, who acted 
 in the executorship, retained in his hands the sum of 23,488?. upon the 
 trusts of the will ; and, after the decease of Daniel and of his own son, 
 by his will, bearing date in 1763, devised all his real and personal estate 
 to General Pulteney and appointed him executor; so that, whether the sum 
 of 23 488/. was to be regarded as the real or as the personal estate of Lord 
 Bath, uiraque via data it became vested in General Pulteney under this 
 devise and bequest. General Pulteney proved the will, took possession of 
 the estates, and transferred the securities upon which the 23,488/. was in 
 vested into his own name. By his will bearing date in 1767, General Pul- 
 teney devised all his estates in Middlesex, Salop, and York, to certain uses, 
 and o-ave all his money, securities, goods, chattels, and personal estate, 
 to his executors upon certain trusts ; so that, under *General 
 [ 804] pui^gjjgy'g ^\\\^ if the 23,488/. was, under the circumstances, to 
 be taken as land, then, for want of a general devise, it had descended 
 upon the plaintiff as General Pulteney's heir; but if it was to be regarded 
 as personalty, it was included in the bequest of the General's personal estate. 
 Lord Bathurst, before whom the cause was first heard, conceived the 
 heir had no title, and dismissed the bill. It was afterwards reheard 
 before Lord Thurlow, who affirmed the decree upon two grounds ; first, 
 that the money was " at home," the possibility of issue having, on the 
 death of General Pulteney, the surviving tenant for life, become extinct, 
 and therefore, at his decease, there was no claim upon the fund outstanding 
 in any other person ; and, secondly, that General Pulteney had manifested 
 a disposition to destroy the impression of real estate, and continue the 
 fund as money. His lordship said, " If there be no legal or equitable 
 title out against the party who is in possession of the fund, there the 
 rule, that when the right and the thing centre in one and the same person 
 the action is extinguished, applies, and the heir cannot say there was a 
 use for him ;" and then, after commenting upon the numerous decisions 
 upon the subject, his lordship continued : " the use that I make of these 
 cases, notwithstanding the dicta they contain, is this, that where a sum 
 of money is in the hands of one without any other use but for himself, it 
 will be money, and the heir cannot claim. But whether that is clearly 
 so or not, circumstances of demeanor in the person, even though slight, 
 will be sufficient to decide it : a very little would do : receiving it from 
 the trustees there is no doubt would be sufficient : Lord Bath did receive 
 it — he had it in his hands. Suppose he had it by way of covenant ; 
 otherwise where would there be an end ? If he kept it subject to a 
 covenant to lay it out for fifty years, should the heir come for it at the 
 end of that term ? It would lead to infinite inconveniences." The 
 decree was afterwards affirmed in the House of Lords, and upon the 
 ground, as stated by Lord Eldon, that the money was " at home."(o) 
 
 Of course the money will be "■ at home" where the person absolutely 
 r*SnfS1 ^"tit^'^*^ to the fund receives it from the trustee the ^depositary 
 L J of it, and that whether the payment is made with the sanction of 
 the court, or by the voluntary act of the trustee himself.(p) 
 
 (o) Whcldale v. Partridge, 8 Ves. 235. 
 
 Ip) See Pulteney v. Darlington. 1 B. C. C. 236 ; Bowes v. Earl of Shaftesbury, 
 5 B. P. C. 144; Chaplin v. Horner, 1 P. W. 483, as to the 1350Z.
 
 MAXIMS OF EQUITY, ETC. G33 
 
 If a testator bequeatli a sum of money to be laid out in lands, to be 
 settled to certain uses, with the ultimate remainder to his own riyht 
 heirs, and the prior limitations fail, the heir may file a bill against the 
 executor of his ancestor, and though the only person entitled, may claim 
 to have the benefit of the conversion. 
 
 Lord Loughborough, in Walker v. Denne,(^y) appears to have doubted 
 upon this point, and observed, that in general a limitation to the right 
 heirs of the testator was an indication that he had no will concerning it, 
 and meant that he did not know what to do with it : but his lordship's 
 doctrines have, as before remarked, been repeatedly disapproved, and 
 the very point was decided by Lord Northington in the case of Robinson 
 v. Knight.(r) 
 
 Lord Macclesfield advanced the position, that if a person voluntarily/ 
 and loitJiout consideration covenanted to lay out money in a purchase 
 of land to be settled on himself and his heirs, the court would compel 
 the execution of such a contract, though merely voluntary j for in all 
 cases, where it was a measuring cast between an executor and an heir, 
 the latter should in equity have the preference. (s) But the position that 
 the heir is more favoured than the executor, though often repeated, (^) 
 does not appear to be founded on any intelligible principle. The notion 
 may have arisen from the leaning of the court towards the heir in res- 
 pect of lands of which the ancestor loas seised. And as to the applica- 
 tion of the rule, that what ought to be done shall be looked upon as 
 done, the heir in the case put by Lord Macclesfield cannot, it seems, 
 take advantage of it; for the *court will not act upon the rule j.^,n^„^ 
 universally but only where the agreement is founded on a good L J 
 or valuable consideration. («) The opinion expressed by Lord Maccles- 
 field may therefore justly be doubted. 
 
 In the preceding observations it has of course been assumed, that the 
 direction or agreement for conversion is by the terms of the instrument 
 made absolute and imperative ; for, where a mere option is given, the 
 original character of the property continues, until the discretion has been 
 exercised, and the conversion actually effected ; as, if the direction or 
 agreement be to lay out money in *' lands or securities, "(i>) in " freeholds 
 or leaseholds,"^?©) or if by any other mode of expression an intention be 
 manifested of not converting the property at all events. (x) 
 
 But where the uses declared are exclusiveli/ applicahle to real estate, 
 the direction or agreement will be construed to be imperative, though 
 the direction or agreement be to lay out the money in " freeholds, lease- 
 
 (q) 2 Ves.jun. IVS-HT. (r) 2 Ed. 155. 
 
 (s) Edwards v. Countess of Warwick, 2 P. W. 176; and see Lcchmere v. Lech- 
 mere, Oas. t. Talb. 90, 91. 
 
 (t) See Crabtree v. Bramble, 3 Atk. 689 ; Scudamore v. Scudamore, Pr. Ch. 
 544 ; Haytor v. Rod, 1 P. W. 364 ; Wilson v. Beddard, 12 Sim. 32. 
 
 (u) See Crabtree v. Bramble, 3 Atk. 687 ; Frederick v. Fredrick, 1 P. W. 713. 
 
 (v) Curling v. May, cited Guidot v. Guidot, 3 Atk. 255 ; Amler v. Amler, 3 Ves. 
 583; and see Van v. Barnett, 19 Ves. 102. 
 
 (w) Walker v. Denne, 2 Ves.jun. 170; Davies v. Goodhew, 6 Sim. 585. 
 
 (x) Wheldale v. Partridge, 5 Ves. 388 ; S. C. 8 Ves. 227 ; and see Abbott v. Lee, 
 2 Vern. 284; Davies v. Goodhew, 6 Sim. 585 ; Policy v. Seymour, 2 Y. & C. 708. 
 
 April, 1858.— 41
 
 604 LEWIN ON THE LA^n^ OF TRUSTS, ETC. 
 
 liolds, or copy'holds"{y) or the instrument contain an authority to invest 
 the money upon securities until a purchase can be found,(z) or, the fund 
 beino; already out upon security, a power is inserted to call it in, and lay 
 it out upon other securities,(a) or even though the direction or agreement 
 be to lay out the money on lands or securities, the intention in the last 
 case apparently being, that the money shall be invested upon security 
 until a suitable purchase can be found, and that the interest and divi- 
 dends in the mean time shall be paid to the person who would be entitled 
 to the rents. (&) 
 
 *And, where the uses are thus exclusively applicable to real 
 L'^'^'J estate, the direction or agreement will be regarded as impera- 
 tive, though the settlement require the purchase to be made at the re- 
 quest of a party,(c) for the insertion of such a clause has been taken to 
 mean, not that a conversion may not be effected hefore, but that it shall 
 certainly be effected after request. (rZ) And the construction is the same, 
 though the purchase be directed to be made with a person's consent and 
 approbation ;{e) for upon a convenient purchase being proposed, the 
 court, said Sir J. Jekyll, will take upon itself to judge thereof, and, 
 without some reasonable objection made, will order the money to be 
 laid out in it, so that such a proviso seems to be immaterial, and as if 
 omitted. (/) But of course the instrument may be so strongly expressed 
 as to show the intention of the parties, that the request or consent of a 
 particular person should be a substantial ingredient, and that no conver- 
 sion should take place unless it were given. (^) 
 
 As money to be converted into land is considered as land, so land to 
 be converted into money is, upon the same principle, invested with all 
 the properties of money. Thus, if an estate be directed or agreed to be 
 sold, and the proceeds be made payable to A., the property, though un- 
 converted at A.'s decease, will pass by a general bequest of all his per- 
 sonal estate ;(A) and, if A. die intestate, will vest in his personal repre- 
 sentative,(?) but will not be liable to probate duty.(7i) 
 
 (y) Hereford v. Ravenhill, 5 Beav. 51. 
 
 (z) Edwards v. Couatess of Warwick, 2 P. W. ITI ; Earlom v. Saunders, Amb. 
 241 ; and see Davies v. Goodhew, 6 Sim. 585. 
 
 (a) Thornton v. Hawley, 10 Yes. 129; andsee Triquet v. Thorntonj 13 Yes. 345. 
 
 {b) Earlom v. Saunders, Amb. 241 ; Cowley v. Hartstonge, 1 Dow. 361: Arnold 
 T. Johnson, 1 Yes. 169 ; Cookson v. Reay, 5 Beav. 22 ; 12 CI. & Fin. 121.' 
 
 (c) Thornton v. Hawley, 10 Yes. 129 ; Johnson v. Arnold, 1 Yes. 169. 
 
 {d) lb. 137 ; but see Stead v. Xewdigate, 2 Mer. 530. 
 
 (e) Thornton v. Hawley, ubi supra. In Symonsv. Butter, 2 Vern. 227, Hutchins 
 was right according to Sir J. Jekyll, Lechmere v. Earl of Carlisle, 3 P. "W. 220, 
 and Lord Thurlow, Pulteney v. Darlington, 1 B. C. C. 238 ; but see Stead v. New- 
 digate, 2 Mer. 530. 
 
 (/) Lechmere v. Earl of Carlisle, 3 P. "W. 220, per Sir J. Jekyll. 
 
 [g) Davies v. Goodhew, 6 Sim. 585 ; and see Re Taylor's Trust, 9 Hare, 596. 
 
 (A) Stead y. Newdigate, 2 Mer. 521. 
 
 [i] Ashby v. Palmer, 1 Mer. 296 ; Biggs v. Andrews, 5 Sim. 424 ; Burton v. 
 Hodsoll, 2 Sim. 24 ; Grieyeson v. Kirsopp, 2 Keen, 653 ; Griffith v. Ricketts, 7 
 Hare, 299; Hardey v. Hawkshaw, 12 Beav. 552. 
 
 {k) Matson v. Swift, 8 Beav. 368 ; Custance v. Bradshaw, 4 Hare, 324 ; nor 
 would such proceeds be forfeitable to the crown as personalty until the period for 
 conversion arrives. Thompson's Trusts, 22 Beav. 506.
 
 MAXIMS OF EQUITY, ETC. 635 
 
 So, if the proceeds be given to an alien, be is capable of taking for bis 
 own benefit, and tbe crown is excluded. (^) 
 
 *And if leasebolds be stamped witb a trust for conversion, and r^orvQ-i 
 tbe proceeds be given to A., and A. dies baving by bis will given L J 
 bis personal estate to a cbarity, tbeleasebold will pass by the bequest. (m) 
 
 But if real and personal estate be given to trustees upon trust for a 
 class, witb a discretionary and not an imperative power to convert tbe 
 whole into personal estate, and if tbe trustees make a partial conversion, 
 and then tbe discretionary power becomes extinguished by their death 
 or otherwise, the objects of the trust will take the property as real or 
 personal estate, according to tbe actual condition in which it is found. («) 
 So if a mortgage deed contain a power of sale witb a direction that the 
 surplus proceeds shall be paid to the mortgagor, his executors, adminis- 
 trators, and assigns, and the property is sold by the mortgagee, the sur- 
 plus will be personal or real estate of the mortgagor, according as the 
 sale takes place before or after bis death. (o) But where an option to 
 purchase has been created by a testator, and exercised after his death, 
 such exercise has been held to effect a retrospective conversion. (^) 
 
 In some cases a conversion of personal estate is implied. Thus as a 
 general rule, if a testator give his personal estate,(g) or the residue of 
 bis personal estate, (/•) or the interest of his property,(s) in trust for or 
 to(^) several persons in succession, and tbe property is of a wasting na- 
 ture, as leasebolds, long annuities, &c., the court implies the intention 
 thatsuch perishable estate *sbould assume a permanent character, p^Qr,Q-i 
 and so become capable of succession. The court accordingly in L '" J 
 these cases, directs a conversion into 3 per cent. Bank Annuities. " It 
 is given," observed Lord Eldon in the leading case of Howe v. Earl of 
 Dartmouth," (it) as all his personal estate, and the mode in which he 
 says it is to be enjoyed is to one for life, and to the others afterwards. 
 Then the court says it is to be construed as to the perishable part, so 
 that one shall take for life and the others afterwards, and unless tbe 
 testator directs the mode so that it is to continue as it was, tbe court 
 understands that it shall be put in such a state that tbe others may enjoy 
 
 (I) Du Hourmelin v. Sheldon, 1 Beav. 79; 4 M. & Cr. 525. 
 
 (m) Shadbolt v. Thornton, 17 Sim. 49. But the ground upon which the court 
 held that there was such a trust for conversion does not appear in the report. 
 
 («) Walter v. Maunde, 19 Ves. 424; Shipperdson v. Tower, 1 Y. & C. Ch. Ca. 
 441 ; Policy v. Seymour, 2 Y. & C. 708 ; and see Cowley v. Harstongue, 1 Dow. 
 378 ; Bourne v. Bourne, 2 Hare, 35. Otherwise, where the power is impe^ati^'e, 
 Grieveson v. Kirsopp, 2 Keen, 653. 
 
 (o) Wright V. Rose, 1 Sim. & Stu. 322 ; and see Re Cooper's Trust. 4 De G. M. & 
 G. 768. 
 
 [p) Lawes v. Bennett, 1 Cox, 167 ; Townley v. Bedwell, 14 Ves. 590 ; but see 
 Drant v. Vause, 1 Y. & C. Ch. Ca. 580 ; Erauss v. Smith, 2 De Gex & Sm. 722. 
 
 {q) Howe v. Earl of Dartmouth, 7 Ves. 137. 
 
 (r) Cranch v. Cranch, cited Howe v. Earl of Dartmouth, 7 Ves. 141, note: 
 Powell v. Cleaver, cited, lb. 142 ; Wichfield v. Baker, 2 Beav. 481 ; Crawley v. 
 Crawley, 7 Sim. 427 ; Sutherland v. Cooke, 1 Coll. 498 ; Johnson v. Johnson, 2 
 Coll. 441. 
 
 (s) Fearns v. Young, 9 Ves. 549; Benn v. Dixon, 10 Sim. 636. Sec Oakes v. 
 Strachey, 13 Sim. 414. 
 
 (0 House v. Way, 12 Jur. 959. 
 
 (m) 7 Ves. 148; Wilkinson v. Duncan, 3 Jur. N. S. 530.
 
 636 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 it after the decease of the first, and the thing is quite equal, for it might 
 consist of a vast number of particulars ; for instance, a personal annuity 
 not to commence in enjoyment till the expiration of twenty-one years 
 from the death of the testator, payable upon a contingency perhaps. If 
 in this case it is equitable that long or short annuities should be sold to 
 o-ive every one an equal chance, the court acts equally in the other case, 
 for those future interests are for the sake of the tenant for life to be 
 converted into a present interest, being sold immediately in order to 
 yield an immediate interest to the tenant for life. As in the one case, 
 that in which the tenant for life has too great an interest, is melted for 
 the benefit of the rest, in the other, that of which, if it remained in specie, 
 he might never receive anything, is brought in, and he has immediately 
 the interest of its present worth." 
 
 But an intention that the property should be enjoyed in specie may 
 appear from the form of the bequest, or be collected from the terms iu 
 which it is expressed. As if there be a specific bequest of leaseholds or 
 of stock, or if the testator assume that the property is to remain in specie 
 by speaking of the devisees or legatees as in the perception of the rents 
 of leasehold estate, or the dividends of stock, or if a testator negative a 
 sale at the time of his death by directing a conversion at a subsequent 
 period. 
 
 Thus, the property was decreed to be enjoyed in specie where a testa- 
 r*8im trix having ^OH^ annuities, and no other stock *gave certain lega- 
 L -I cies out of her ^^ funded property" and bequeathed "the re- 
 mainder of her dividends to A. for life," and after her decease gave sums 
 of " stock" of various amounts to different persons. (i?) So where a testa- 
 tor having long annuities gave 100?. long annuities to A., "the residue 
 of his property all he did or might possess in the funds, copy or lease- 
 hold estate," to B. and C. for their lives, and on the death of both to 
 be divided among certain persons in the will named. (r) So where a 
 testator having leaseholds gave all his estate to A. and B. upon trust to 
 permit C. to enjoy " the rents, issues, profits, interest, and annual pro- 
 ceeds thereof," for her life, and on her decease upon trust for the two 
 daughters of G.(x\ So where a testator having leaseholds gave all his 
 property of every description and denomination unto three trustees upon 
 trust for A. B. for her life, for her separate use, and upon her decease upon 
 trust for C. D. for her life, for her separate use, and on her decease unto 
 her children in equal shares j and if there should be no children, the 
 whole of the property to be sold by auction, and the proceeds to be dis- 
 tributed amongst certain parties. (?/) So where a testator having lease- 
 holds, gave his wife "all his pi'opcrty in every shape, and without any 
 reserve, and in whatever manner it was situate for her life, and at her 
 
 {v) Vincent v. Newcombe, Younge, 599 ; and see Sutherland v. Cooke, 1 Coll. 
 503. 
 
 iw) Bethune v. Kennedy, 1 M. k C. 114. 
 
 (a;) Goodenough v. Tremamondo, 2 Beav. 512; Bowden v. Bowden, 17 Sim. 
 65 ; Harris v. Poyner, 1 Drew. 174; Blann v. Bell, 2 De Gex, Mac. & Gor. 775 ; 
 Crowe V. Crisford, 17 Beav. 507; Hood v. Clapham, 19 Beav. 90; Marshall v. 
 Bremner, 2 Sm. & Gif. 237 ; and see contra, Pickup v. Atkinson, 4 Hare, 624. 
 
 [y) Daniel v. Warren, 2 Y. & C. Ch. Ca. 290 ; Chambers v. Chambers, 15 Sim. 
 183; Burton v. Mount, 2 De Gex & Sm. 383.
 
 MAXIMS OF EQUITY, ETC. 637 
 
 death, the property to be divided" amongst certain persons. (2) So where 
 a testator having leascJwIds, and being entitled to an annuity pwr autre 
 vie gave to his wife "all the interest, rents, dividends, annual produce 
 or profits, use and enjoyment" of all his real and personal estate for her 
 life, and after her decease to A., or in case he died in the testator's life- 
 time, *to B. and C.(tt) So where a testator having Io7ig annui- pgj^j^-i 
 ties and no other stock, gave all his real and personal estate to his L J 
 executors ''upon trust to permit his wife to receive the rents and profits, 
 dividends, and annual proceeds for life, and on her decease upon trust 
 to sell his freehold and leasehold houses, and to convert the whole of his 
 estate into money."(Z^) So where a testator having leaseholds gave to his 
 wife "the full and entire enjoyment" of his real and personal estate for 
 her life, and after her decease he directed his trustees to sell all the 
 leasehold and chattel property. (r) So where a testator having leaseholds 
 and long annuities gave to his wife " the whole income of his property" 
 for her life, "but not to sell without the whole consent of all parties," 
 and at her decease the testator gave a debt owing to him to A. and 100^. 
 3 per cent, stock to be " bought in " within three months from his wife's 
 decease to B., and then disposed of the residue.(cZ) "So where a testator 
 gave the residue of the stocks and funds that should be standing in his 
 name at his decease to trustees upon trust to pay the interest and divi- 
 dends thereof to A. for life, and on her decease upon trust for B. and C, 
 and the testator gave a power to the trustees to transfer the stocks and 
 funds into any other funds and bequeathed the residue of his personal 
 estate to A. absolutely, it was held that the long annuities of which the 
 testator died possessed, were to be specifically enjoyed, and that the 
 power given to the trustees was for the security of the property, and was 
 not intended to cut down the specific gift.(e) 
 
 The case of Mills v. Mills,(/) is not to be reconciled with the forego- 
 ing authorities, and is not considered as law. A testator gave his free- 
 holds, and leaseholds, stocks in the public funds, and all other his real 
 and personal estate to trustees upon trust to pay the rents, issues, and 
 profits of his freehold and leasehold estates and the dividends, interest, 
 and proceeds of his money in the funds, and other his said personal estate 
 to *A. for life, with remainders over, and a question arose as to r*g22"| 
 the testator's leaseholds, and bank stock. The vice-chancellor L "^J 
 held that the leaseholds were not to be specifically enjoyed, but must be 
 sold; " Unless," he said, " the bequest is construed as a general bequest 
 the consequence would be that if he had surrendered the leaseholds and 
 taken renewals they would not have passed ;" but there seems to be some 
 confusion here between a specific bequest and a direction for specific en- 
 joyment.(^) Unquestionable, it was a general bequest in the sense that 
 
 {z) Collins V. Collins, 2 M. & K. T03 ; see observations on this case in Vaughaa 
 V. Buck, 1 Phill. 78 ; Lichfield v. Baker, 13 Beav. 447. 
 
 (a) Pickering v. Pickering, 2 Beav. 31 ; 4 M. & C. 289 ; but the will was also of 
 a very special character. {h) x\.lcock v. Sloper, 2 M. & K. 699. 
 
 {c) Harvej^ v. Harvey, 5 Beav. 134. {d) Hinves v. Hinves, 3 Hare, 609. 
 
 (e) Lord v. Godfrey, 4 xMad. 455. 
 
 (/) 7 Sim. 501 ; see Oakes v. Strachey, 13 Sim. 414. 
 
 {g) As to the distinction, see Pickering v. Pickering, 2 Beav. 57 ; 4 M. & C. 299.
 
 (338 LEAVIN ON THE LAW OF TRUSTS, ETC. 
 
 the testator meant all the leaseholds he should have at the time of his 
 death to pass, but consistently with this intention, he might declare, as 
 the lesal construction apparently was, that all such leaseholds should be 
 specifically enjoyed. It was rightly decided, that the bank stock should 
 be sold, for it did not fall under the description of " public funds," and 
 therefore, had not been specifically mentioned. There could have been 
 no difficulty in holding, that under the same clause, part should be specifi- 
 cally enjoyed and part be converted. (A) 
 
 The rule of the court under which perishable property is converted 
 does not proceed upon the assumption that the testator in fact intended 
 his property to be sold, but is founded upon the circumstance that the 
 testator has intended the perishable property to be enjoyed by different 
 persons in succession, which can only be accomplished by means of a 
 sale.(/) The object of the rule in truth is to secure a fair adjustment 
 of the rights of the tenants for life and those coming after him. Upon 
 similar grounds, therefore, where a residue which is without any express 
 trust for conversion, bequeathed to persons in succession, consists of 
 property which, though not wasting, is of a class producing a high rate 
 of interest in proportion to its money value, and liable consequently to 
 additional risk, such as railway shares, canal shares, shares of insurance 
 or other companies, foreign bonds or stocks, &c., &c., the persons 
 L ^^^J ^entitled in expectancy have a right to call for the conversion of 
 such property into three per cent, stock. (^•) 
 
 ir a testator direct that his personal estate shall be laid out in a pur- 
 chase of lands, to be settled on A. for life, with remainders over, and that 
 the interest of the personal estate shall he accumidated and laid out in a 
 purchase of lands to be settled to the same uses, the court to prevent the 
 hardship that would fall upon the tenants for life, if the purchases were 
 protracted for a long period, either from unavoidable circumstances, or 
 from the dilatoriness of the trustee, interprets the intention in such cases 
 to be that the accumulation should be confined to one year from the 
 testator's death. At the expiration of that period, the court presumes 
 the trustees to be in a condition to invest the personal estate, and gives 
 the tenant for life the interest from that time.(^) 
 
 So if a testator devise his real estate to be sold and the produce thereof, 
 and also the rents and profits of the said estate, in the meantime to he 
 laid out in hanlc annuities or other securities, upon trust for A. for life, 
 with remainders over, the accumulation of the rents is not extended 
 beyond one year from the testator's death, but the tenant for life is 
 entitled to them from that period. (m) 
 
 {h) See Vaughan v. Buck, 1 Pbill. 75 ; Bethune v. Kenned}-, 1 M. & C. 114. 
 
 {i) Cafe V. Bent, 5 Hare, 35. 
 
 \k) Thornton v. Ellis, 15 Beav. 193 ; Blann v. Bell, 5 De Gex & Sm. 658 ; 2 De 
 Gex, Mac. & Gor. 775. 
 
 {I) Sitwell V. Bernard, 6 Ves. 520 ; andEntwistle v. Markland, Stuart v. Bruere, 
 cited, lb. 528, 529 ; Griffith v. Morrison, cited 1 J. & W. 311 ; Tucker v. Boswell, 
 5 Beav. 607 ; Kilvington v. Gray, 2 S. & S. 396 ; Parry v. Warrington, 6 Mad. 
 155; Stair v. Macgill, 1 Bligh, N. S. 662. 
 
 (m) Noel V. Lord Henley, 7 Price, 241 : Vickers v. Scott, 3 M. & K. 500 ; and 
 see Vigor V. Harwood, 12 Sim. 172; Greisley v. Earl of Chesterfield, 13 Beav. 
 288 ; Beanland v. Halliwell, 1 C. P. Cooper, t. Cottenham, 169, note (a).
 
 MAXIMS OF EQUITY, ETC. 639 
 
 From the language used by Lord Eldon, iu the case of Sitweil v. Ber- 
 nard, (^i) (in which the rule, that the accumulation where expressly 
 directed, extends only to one year from the testator's death, was first 
 established,) an impression prevailed that in no case was the tenant for 
 life entitled to the produce of the land, or fund to be converted during the 
 first year. Both Sir John Leach, (o) and Sir Thomas Plumer,(p) r^oi j-i 
 ^sanctioned this doctrine by their authority. However, Lord l J 
 Eldon had no intention of laying down any such rule,((/) and it has since 
 been unquestionably settled that the tenant for life has an interest in the 
 first year's produce,^?-) varying, however, according to the circumstances 
 of the case, as will appear from the following distinctions. 
 
 If a testator desire that his personal estate shall be laid out and invested 
 in government or real securities, (s) or in a purchase of lauds, with a 
 direction express(^) or implied(«) for the investment thereof in the mean- 
 time in government or real securities, and that the lands to be purchased 
 shall be in trust for A. for life, with remainders over ; the produce of the 
 government and real securities of which the testator was possessed at the 
 time of his death (these being the very investments contemplated by bis 
 will,) belong /?'o»ft the time of the death to the tenant for life. 
 
 If, during the first year, the conversion directed by the testator is actually 
 made, the tenant for life is also entitled to the produce of the property, 
 in its converted form, from the time of the conversion, as if land be 
 directed to be sold, and the produce invested in government or real 
 securities, (?;) or money is directed to be laid out on land,(i6-) the tenant 
 for life is entitled to the dividends or interest in the first case, from the 
 time of the sale and investment, and to the rents in the latter case from 
 the time of the purchase, though iu the course of the first year. 
 
 Where, at the death of the testator, the property is not in the state in 
 which it is directed to be, the tenant for life is, before the conversion, 
 entitled, as the court has now decided, not to the actual produce, but to 
 a reasonable fruit of the property, from the death of the testator up to 
 the time of the conversion, whether made in the course of the first year 
 or ^subsequently, as if personal estate be directed to be laid out r^o-, --, 
 in government or real securities, and part of the personal estate L J 
 consists of bonds, bank stock, &c., (not being government or real securi- 
 ties,) the tenant for life is entitled to the dividends on so much of 3 per 
 cent, consolidated bank annuities as such part of the personal estate, not 
 being government or real securities, would have purchased at the expira- 
 tion of one year from the testator's death. (x) 
 
 {n) 6 Ves. 520. (o) Stott v. Hollingworth, 3 Mad. IGl. 
 
 Ip) Taylor v. Hibbert, 1 J. & W. 308. 
 
 {q) See Angerstein v. Martin, T. & R. 238 ; Hewitt v. Morris, lb. 244. 
 
 [r] Macpherson v. Macpherson, 16 Jur. 847. 
 
 (s) Hewett v. Morris, T. & R. 241 ; La Terriere v. Bulmer, 2 Sim. 18. 
 
 (f) Angerstein v. Martin, T. & R. 232. 
 
 (w) Caldecott v. Caldecott, 1 Y. & C. Ch. Ca. 312, '737. 
 
 (y) La Terriere v. Bulmer, 2 Sim. 18 ; Gibson v. Bott, 7 Yes. 89. 
 
 [ic) See Angerstein v. Martin, T. & R. 240. 
 
 [x) Dimes v. Scott, 4 Russ. 195. In Douglas v. Congreve, 1 Keen, 410 ; the .M. 
 R. gave the tenant for life the interest of the personal estate making interest from 
 the death of the testator; but iu the subsequent cases of Taylor v. Clark, 1 Hare,
 
 640 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 But of course, if it appear from the terms of the will that the testator 
 intended to give his trustees a discretion as to the time of conversion, 
 which discretion has been fairly exercised, and that the tenant for life 
 was to have the actual income until conversion, the case must be governed 
 by the testator's intention, and not by the general rule.(y) 
 
 In Gibson v. BotUz) a testator directed his personal estate to be con- 
 verted into government or real securities, and the title of some leaseholds 
 being defective they could not be sold ; and Lord Eldon said, they must 
 be considered as property which it was for the benefit of all parties to 
 retain in specie, and decreed the tenant for life to have interest at 4 
 per cent, from the death of the testator on the value thereof at that 
 time.(o) And so in another case Sir J. Parker, vice-chancellor, ob- 
 served that when the property was so laid out as to be secure, and to 
 produce a large annual income, but was not capable of immediate conver- 
 sion, without loss and damage to the estate, there the rule was not to 
 r*81fil ^o'^^^i't ^^^^ property but to set a *value upon it, and give to the 
 L J tenant for life 4 per cent, on such value, and the residue of the 
 income must then be invested, and the income of the investment paid to 
 the tenant for life, but the corpus must be secured for the remainder- 
 man. (Z*) 
 
 If a testator direct his real estate to be sold, and the proceeds to be 
 laid out and invested upon trust for A. for life, with remainders over, 
 the tenant for life is entitled to the rents of the estate from the testator's 
 decease ;(c) and so if the sale be directed on the death of a particular 
 person, the tenant for life is entitled to the rents from the death of that 
 person. (rZ) 
 
 In connection with the subject of conversion, it will be proper to intro- 
 duce a few remarks upon the doctrine of election ; for where land is to 
 be converted into money, or money into land, the notional conversion 
 will subsist only until some cestui que trust who is competent to elect, 
 intimate his intention to take the property in its original character, (e) 
 The court will not compel a conversion against the will of the absolute 
 owner ; for should the conversion be made, he would immediately recon- 
 vert it, and equity will do nothing in vain.(/) 
 
 IGl ; and Morgan v. Morgan, 14 Beav. 72 ; the authority of Dimes v. Scott was 
 followed. In Caldecott v. Caldecott, 1 Y. & C. Ch. Ca. 312, T37, the court gave 
 the tenant for life the actual interest of the mortgages as being proper investments, 
 and 4 per cent, interest on the personal estate not consisting of government or real 
 securities, on the assumption, apparently, that the case fell within the principle of 
 Gibson v. Bott. In Sutherland v. Cooke, 1 Coll. 503, under special circumstances, 
 4 per cent, on the value was also allowed. 
 
 (?/) Mackie v. Mackie, 5 Hare, 70; Wrey v. Smith, 14 Sim. 202; Sparling v. 
 Parker, 9 Beav. 524. 
 
 (z) 7 Ves. 89. 
 
 (a) Seethe decree from Reg. Lib. Caldecott v. Caldecott, 1 Y. & C. Cb. Ca. 320. 
 
 (b) Meyer v. Simonsen, 5 De Gex & Sm. 726. 
 
 (c) Casamajor v. Strode, cited Walker v. Shore, 19 Ves. 390; Hutcheon v. 
 Mannington, 1 Ves. jun. 367, per Cur. 
 
 (d) Fitzgerald v. Jervoise, 5 Mad. 25, of which the marginal note does not 
 exactly accord with the report itself. 
 
 (e) Harcourt V. Seymour, 2 Sim. N. S. 45; Cookson v. Reay, 5 Bear. 22; 12 
 CI. & Fin. 121 ; Dixon v. Gayfere, 17 Beav. 433. 
 
 (/) Seeley v. Jago, 1 P. \V. 389.
 
 MAXIMS OF EQUITY, ETC. 641 
 
 Upon tliis subject we shall consider : — 1. What persons are capable of 
 electing ; and, 2. In what manner the act of election may be manifested. 
 
 1. In respect of7?e>'so?ia/ incaj)acitij , an infant,^*/) lunatiCj^A) ov feme 
 covert,(i\ has no power to make election. 
 
 " But although," said Lord Hardwicke, " a feme covert cannot alter 
 the nature of money to be laid out in land by contract or deed, yet if the 
 money be invested in land (and ^sometimes sham purchases r^o^'j-i 
 have been made for the purposejy/.-) she may then levy a fine of L J 
 
 the land, and give it to her husband or anybody else. There is a way, also, 
 of doing this without laying the money out in land, and that is, by coming 
 into a court of equity, and consenting to take the money as personal 
 estate ; for upon her being present in court, and being examined [as a 
 feme covert upon a fine is,] her consent binds the money articled to be 
 laid out in land as much as a fine at law would the land, and she may 
 dispose of it to the husband or anybody else. And the reason of it is 
 this — that at law, money so articled to be laid out in land is considered 
 barely as money till an actual investment, and the equity of this court 
 alone views it in the light of real estate ; and, therefore, this court can 
 act upon its own creature, and do what a fine at common law can upon 
 land."(^) And at a later date Lord Hardwicke's views were ratified by 
 express decision. (m) 
 
 Now by the 3 & 4 W. 4, c. 74, ss. 40, 71, 77,(») a married woman is 
 enabled, with the concurrence of her husband and with the formalities 
 requii-ed by the act, to dispose of any estate at law or in equity, or any 
 interest, charge, lien, or incumbrance in or upon lands or money to be 
 laid out in a purchase of lands, or to relinquish or release any power 
 over the same, as if she were a feme sole, so that in the case of money 
 liable to be laid out in land, a feme covert can, through the medium of 
 the power of disposition conferred by the act, virtually elect to take the 
 money. 
 
 And the act enables a married woman not only to dispose of property 
 which, though personal estate in fact, is real estate in equity (as money 
 to be invested in land,) but also of property which is in equity personal 
 estate, provided only it be an interest in land ; and this although accord- 
 ing to the ordinary doctrines of the court the married woman would, by 
 reason of her interest being reversionary, have no such power of disposi- 
 tion. Thus, where real estate is devised upon trust for sale in terms 
 amounting to a conversion out and out, and *a married woman r*o-j^o-i 
 takes a share of the proceeds, she can, under the statute, dispose L -" 
 of her share, even though reversionary, as being an interest in land.(o) 
 
 (g) Carr v. Ellison, 2 B. C. G. 56 ; Earlom v. Saunders, Arab. 241 ; Tliorntoa 
 T. Hawlev, 10 Ves. 129 ; Van v. Barnett, 19 Ves. 102 ; Seeley v. Jago, 1 P. W. 
 389 ; Padbury v. Clark, 2 Mac. & Gor. 298 ; and see Ashby v. Palmer, 1 Mer. 301. 
 
 (A) Ashhy v. Palmer, 1 Mer. 296. 
 
 (t) Oldham y. Hughes, 2 Atk. 452 ; Frank v. Frank, 3 M. & C. IVI ; Re Fosard's 
 Trust, 1 Kay & Johns. 233. 
 
 (k) See Henley v. Webb, 5 Mad. 407. (l) Oldham v. Hughes, 2 Atk. 453. 
 
 (m) Blnford v. Bawden, 1 Ves. jun. 512. 
 
 («) Extended to contingent interests by the 8 & 9 Vict. c. 106, s. 6. 
 
 (o) Briggs V. Chamberlain, 11 Hare, 69 ; Tuer v. Turner, 20 Beav. 460.
 
 642 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 And it is conceived, that the same principle must apply to the case of a 
 reversionary money legacy raisable out of land, notwithstanding the doubts 
 entertained by Lord Justice (then vice-chancellor) Knight Bruce, in the 
 case of Hobby v. Collins. (p) 
 
 It has been held that a remainderman may elect so as to bind the 
 rio-hts '< inter se" of his heir and personal representative, notwithstanding 
 th°e subsistence of the prior estate. Thus, in Lingen v. Sowray,((/) A., 
 on his marriage, agreed to add 700?. to the lady's portion of 700/., and 
 the securities for both sums were assigned to trustees, and the money was 
 directed to be laid out in lands to be settled to the use of the husband 
 for life, remainder to the wife for life, remainder to the first and other 
 sons in tail, remainder to the right heirs of the husband. There was no 
 issue of the marriage, and 250/. of the trust-money was called in by the 
 direction of the husband, and placed out upon other securities, and a 
 trust declared, not for the husband and his heirs, but for the husband 
 and his executors and administrators. The husband afterwards died, 
 having devised part of his real estate to his wife, and the residue to J. 
 S., and having bequeathed his personal estate and all his securities for 
 money to his wife. It was debated whether the 250/. ought, as to the 
 operation of the husband's will, to be regarded in the light of realty or 
 personalty. Lord Harcourt said, '< as to the 250/. which was called in 
 by the testator, and afterwards placed out on securities on a different 
 trust, that shall be taken to be personal estate, forasmuch as, there being 
 no issue of the marriage, it was in the power of the husband to alter and 
 dispose of it as against the heir-at-law, though not as against his wife." 
 But the remainderman can, of course, only elect subject to the right of 
 r*81Q1 *^^ owner of the prior estate to call for the actual conversion *of 
 L J the land or money in accordance with the instrument of trust ^(r) 
 and it is conceived that, should this right be insisted on, the conversion 
 '^de facto" would render the intended election ineffectual. 
 
 Where an estate is directed to be sold, the proceeds to be divided 
 amongst several persons, no one singly has a right to elect that his own 
 undivided share shall not be disposed of,(.s) for the other undivided 
 shares will not sell so beneficially in proportion as if the estate were en- 
 tire ■,(t) but if money be directed to be laid out in lands to be settled on 
 A., B., and C, as tenants in common, any one of them may elect to take 
 his own third as money, for two-thirds may be invested just as advanta- 
 geously as the whole sum.(«<) 
 
 Sound principle would require that a tenant in tail of lands to be 
 purchased should not be allowed to elect, because the interests of the 
 
 (p) 4 De Gex & Sm. 289 ; and see observations of Lord St. Leonards in his 
 essay on the real property Statutes, 240. 
 
 (q) 1 P. W. 172 ; and see Stead v. Newdigate, 2 Jler. 531 ; Gillies v. Longlands, 
 4 De Gex & Sm. 379. 
 
 (r) Gillies v. Longlands, 4 De Gex & Sm. 379 ; Ex parte Stewart, 1 Sm. & Gif. 32. 
 
 (s) HoUoway v. Radcliffe, 3 Jur. N. S. 198 ; Fletcher v. Ashburner, 1 B. C. C. 
 500, per Sir T. Sewell ; Deeth v. Hale, 2 Moll. 317 : and see Smith v. Claxton, 4 
 Mad. 494. 
 
 (0 Chalmer v. Bradley, 1 J. & W. 59 ; and see Trower v. Knightley, 6 Mad. 134. 
 
 (m) Seeley v. Jago, 1 P. W. 389; Walker v. Denne, 2 Yes. jun. 182, per Lord 
 Loughborough. 
 
 I
 
 MAXIMS OF EQUITY, ETC. 643 
 
 issue and tlie remainderman, wlio botli take by title paramount, would 
 otherwise be prejudiced. But the old rule appears to have been, that 
 tenant in tail might in every case have elected, and on filing a bill would 
 have been entitled to the money ;(y) and the principle upon which the 
 practice was grounded was said to be, that equity will do nothing in 
 vain, and it were nugatory to direct an actual purchase and settlement 
 when the tenant in tail the next moment might dispose of the fee sim- 
 ple. Lord Cowper, however, in the case of Colwal v. Shadwell,(!6') took 
 the distinction, that where the remainder in fee was not vested in the 
 tenant in tail himself, but was limited over to a stranger, there, as the 
 absolute fee could only be acquired by a recovery^ which was a thing of 
 time, and could not be suffered in vacation, the remainderman should 
 not lose his chance 3 and as in that case the tenant in tail did actually 
 die before the recovery was suffered, it showed *the remainder- „^-,„^ 
 man's interest in so glaring a light, that it established the pre- L "^ J 
 cedent ever afterwards. (a-) But even then the money would have been 
 decreed to the tenant in tail, provided the remainderman waived his 
 right and consented to the payment. (^) 
 
 In Eyre's case(2) Lord Chancellor King was for extending the same 
 protection to the is&ue. " I cannot see," he said, " why I should not 
 have the like regard to the iss^le in tail as for the remainderman. It 
 is possible the tenant in tail, before he can light on a purchase and settle 
 it, may die, leaving issue, and this is a chance of which I would not 
 deprive such issue." And in Speaker Onslow's Case, (a) he declared 
 his adherence to the same opinion, observing, that " the levying of a fine 
 also was a thing of time, there being several olfices to pass, and the writ 
 of covenant to be under the great seal." But the rule which had been 
 uniformly acted upon before his time(i) appears, notwithstanding his 
 lordship's authority, to have been revived by his successors. (c) 
 
 And the election of the tenant in tail need not necessarily have been 
 made in a suit, but might have been expressed by act in pais, as if 
 tenant in tail with remainder to himself had received the money of the 
 trustee, or if tenant in tail with remainder to a stranger had received it 
 of the trustee with the consent of the remainderman. Upon this subject 
 Lord Hardwicke observed, "■ The court jjur sues the rights of parties, and 
 whatever a court of common law does by a judgment, or chancery by a 
 decree, is in affirmance of those rights, and does not give them a right 
 which they had not before. (r?) Why does the court decree the money? 
 Because the parties are entitled *to it. There is, therefore, no r^op-i-i 
 occasion for a decree of the court to destroy the real quality of the L "^ J 
 
 (y) Cunningham v. Moody, 1 Ves. IVG, per Lord Hardwicke. 
 
 (w) Cited Chaplin v. Horner, 1 P. W. 485. 
 
 [x) See Cunningham v. Moody, 1 Ves. 17G ; Talbot v. Whitfield, Bunb. 204. 
 
 {y) See Trafford v. Boehm, 3 Atk. 440. (z) 3 P. W. 13. 
 
 (rt) 3 P. W. 14, note (G). 
 
 {b) Benson v. Benson, 1 P. W. 130 ; Short v. Wood, lb. 470 ; Edwards v. Coun- 
 tess of Warwick, 2 P. W. 173, admitted. 
 
 (c) Trafford v. Boehm, 3 Atk. 447, per Lord Hardwicke ; Cunningham v. Moody, 
 1 Ves. 176, per eundem ; Holdernesse v. Carmarthen, 1 B. C. C. 382, per Lord 
 Thurlow ; and see the preamble of the 39 & 40 G. 3, c. 56. 
 
 {d) And see Earl of Bath v. Earl of Bradford, 2 Ves. 590.
 
 644 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 money, unless there be an incapacity of the person, as in the case of a 
 feme covert, who must first be examined."(e) 
 
 Lord Thurlow, indeed, once said, " If the fund be outstanding in 
 trustees, and it be necessary to come hither in order to obtain it, the 
 money, when obtained, will be personal property; and so it would also, 
 if the trustees pay it without suit. That is, supposing the estate, when 
 purchased, would be a fee simple, for it icouhihe otherwise in case of its 
 heinrj an estate taiU'[f) But the concluding remark must have been 
 intended (as Mr. Serjeant Hill, in a note on the passage, has observed)(f7) 
 to apply, not to every tenant in tail, as, not to tenant in tail with re- 
 mainder to himself in fee, but only to tenant in tail with remainder to 
 a stranger ; for in a subsequent case, where the tenant in tail had execut- 
 ed an assignment of two sums of money directed to be laid out in lands, 
 his lordship said, "As to the 500/. the assignor was tenant in tail, re- 
 mainder to a stranger, remainder to himself in fee ; as to the 1000/. he 
 was tenant in tail, with remainder in fee to himself I am clear, that 
 in regard to the 1000/. he had the absolute dominion over it, having the 
 immediate remainder in fee; but as to the 500/. I am equally clear the 
 other way, because of the intermediate remainder. "(A) 
 
 By the 39 & 40 Gr. 3, c. 56,(i) the inability of the tenant in tail (with 
 remainders over,) of money to be laid out in the purchase of land to ob- 
 tain possession of the money, except through the medium of a fictitious 
 purchase,(/i) was removed. And the court was empowered on the petition 
 of the first tenant in tail of such money-land, and of the parties (if any) 
 having antecedent estates therein (with a provision for the separate exami- 
 nation of married women,) to order the money to be paid to the petition- 
 r*899l ^^^ ^^ ^^ ^^^y should appoint. (/) So *that a kind of statutory 
 L ""^J power of election was thus conferred on tenants in tail. 
 
 Now, by the Fines and Recoveries Act, (?n) a tenant in tail may, with 
 the consent of the protector, if any, dispose absolutely of the lands en- 
 tailed at any time, whether in term or vacation, and by the 71st section 
 of the statute(n) it is enacted, that '< money to be invested in the pur- 
 chase of lands to be settled so that any person, if the lands were pur- 
 chased, would have an estate tail therein, shall be treated as the lands to 
 be purchased, and the previous clauses of the act shall apply to such 
 money, as if it were directed to be laid out in the purchase oi freehold 
 lands, and such lands were actually purchased and settled," 
 
 Upon the consideration of the late enactments, a doubt suggests itself 
 whether, even at the present day, a tenant in tail may not elect to take 
 in its original character money which is liable to be laid out in the pur- 
 chase of lands, and declare such election either by the institution of a 
 
 (e) Trafford v. Boehm, 3 Atk. 448 ; but see Pearson v. Lane, 17 Yes. 106. ' 
 (/) Pulteney v. Darlington, 1 B. C. C. 2.36. 
 {g) lb. note (a), Lord Henley's edit, 
 (/t) Holdernesse v. Carmarthen, 1 B. C. C. 382. 
 
 (0 Extended by 7 G. 4, c. 45. {k) See Henley v. Webb, 5 Mad. 407. 
 
 [1) See 5 Ves. 12, note (8) as to the qualification introduced by the court in 
 making orders for payment under this act. 
 (m) 3 & 4 W. 4, c.*'74. 
 («) The preceding section repeals the 39 & 40 G. 3, c. 56, and 7 G. 4, c. 45.
 
 MAXIMS OF EQUITY, ETC. 645 
 
 suit or by act in pais. It is true that under the 71st clause of the late 
 act the tenant in tail may at any time defeat his issue and the remainder- 
 men by a deed executed with the proper formalities ; but what is there 
 to prevent him from exercising a power founded upon principles indepen- 
 dent of the statute, and so acquiring the fee simple by the mere act of 
 election ? It may be said that the old rule, which made election a bar 
 to the issue, might have been grounded on this — that, because no fine 
 or recovery could have been levied or suffered of money,(o) the court, 
 on that account, held election to have the effect of a bar, lest the tenant 
 in tail should lose the power, which the law intended him, of defeating 
 the settlement; but that, since by the Fines and Recoveries Acta tenant 
 in tail of money may bar his issue and the remainderman by*the r^ooo-i 
 same formalities as if the lands were actually purchased and set- L ^ -1 
 tied, the same indulgence ought not now to be shown. But to this it 
 may be answered, that the tenant in tail was allowed to elect, not because 
 the tenant in tail of money had a right to exercise the same powers of 
 ownership as a tenant in tail of lands, but for the purpose of avoiding 
 circuity. Had the former been the principle, the tenant in tail might 
 equally have barred the remainderman as the issue ; but for the destruc- 
 tion of remainders an actual settlement was necessary, and a sham pur- 
 chase was often resorted to for the purpose. (p) It is, however, clear, 
 that no person being tenant in tail of money to belaid out on land could 
 at the present day be advised, if he would acquire the absolute interest, 
 to dispense with the formalities prescribed by the Fines and Recoveries 
 Act. 
 
 2. The act of election either may be presumed by the court, or may 
 be expressly declared. 
 
 The presumption may arise from slight circumstances of conduct. (5) 
 Thus it will be sufficient, where land is to be converted into money, if 
 the cestui que trust enter into possession and take the title-deeds into his 
 own custody, for the trustees cannot recover the deeds from the cestui 
 que trust, and they cannot sell without them,(r) or if the cestui que trust 
 merely keep the estate for a length of time unsold(s) (but in one case a 
 period of two years was considered not to be a sufficient indication of such 
 an intention, )(^) or, where money is to be turned into land, if the cestui 
 que trust receive the money from the trustee ;(») but not if he merely 
 receive the annual income though for a considerable length of time.(y) 
 
 (0) See Benson v. Benson, 1 P. W. 130 ; Edwards v. Countess of Warwick, 2 P. 
 W. IT-i ; Maynwaring v. Jlaynwaring, 3 Atk. 413. 
 
 (p) See V. Marsh, cited Cliaplin v. Horner, 1 P. W. 485, note(t) ; Mayn- 
 waring V. Maynwaring, 3 Atk. 413 ; Henley v. Webb, 5 Mad. 407. 
 
 [q) See Pulteney v. Darlington, 1 B. C. C. 238 ; Van v. Barnett, 19 Ves. 109; 
 Bradish v. Gee, Arab. 229 ; Dixon v. Gayfere, 17 Beav. 433. 
 
 (r) Daviesv. Ashford, 15 Sim. 42 ; and see Padbury v. Clark, 2 Mac. & Gor. 298. 
 
 (5) See Ashby v. Palmer, 1 Mer. 301 ; Dixon v. Gayfere, 17 Beav. 433 ; Gnes- 
 bach V. Fremantle, 17 Beav. 314. 
 
 (t) Kirkman v. Miles, 13 Ves. 338 ; Cookson v. Cookson, 12 CI. & Fin. 121 ; but 
 see Crabtree v. Bramble, 3 Atk. G88 ; Inwood v. Twyue, 2 Ed. 148. 
 
 (?/.) Pulteney v. Lord Darlington, 1 B. C. C. 238, per Lord Thurlow ; Trafford 
 V. Boehm, 3 Atk. 440 ; and see Rook v. Worth, 1 Ves. 461. 
 
 (v) Gillies v. Longlands, 4 De Gex & Sm. 372.
 
 646 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 *It was determined by Lord Harcourt that a cestui que trust 
 [*824] j^^^ divested money of its real quality by causing the securities 
 to be chano-ed, and the trust to be declared to himself and his executors ; 
 for this, he observed, was tantamount to saying the money should not go 
 to the heir -Aw) and vice versa, where land was to be converted into 
 money, it was held by Lord Hardwicke, that a lease by the cestui que 
 trust reserving a rent to her heirs and assigns, was evidence of an inten- 
 tion to continue the property as real estate. (x) To constitute an act of 
 election it is not necessary that the person entitled, as for instance, to 
 money to be laid out on land, should know that but for the act of election 
 it would pass as land, but it is suflSicient if the court can collect the 
 intention that with or without such knowledge he meant the money to 
 be dealt with and treated as money.(^) 
 
 A person may express his election, even by parol. This, at least, was 
 the opinion of Lord Macclesfield, (z) and apparently was actually decided 
 in the case of Chaloner v. 13utcher,(a) in which, the husband having 
 declared the money should not be laid out in land, the court held, that, 
 if the question concerned the right of a third person, the declarations of 
 the husband ought not to be admitted ; but, as it was between his per- 
 sonal and real representative, they should be read. And both Lord 
 Thurlow,(&) and Lord Eldon,fc) seem to have lent their sanction to the 
 same doctrine, so that an ohiter dictiim of Lord Hardwicke to the con- 
 trary, (fZ) though supported by so illustrious a name, must be considered 
 as overruled. 
 
 Where money bore the notional impress of realty, the testator might 
 have bequeathed it as so much money to be laid out in land, and the 
 r*S9^n ^"^^^^7 would have passed, though the will was not attested *ac- 
 L "^ -I cording to the Statute of Frauds ;(e) the will operated first by way 
 of election, and then by way of bequest. Now by the late Wills Act(/) 
 the same formalities are required for the testamentary disposition of both 
 real and personal estate. 
 
 SECTION IL 
 
 THE ACT OF THE TRUSTEE SHALL NOT ALTER THE CESTUl'S QUE 
 TRUST ESTATE. 
 
 At latv the trustee is the absolute proprietor of the land or fund, and 
 
 (w) Lingen v. Sowray, 1 P. W. 172 ; and see Cookson v. Cooksoa, 12 CI. & Fin. 
 121 ; Harcourt v. Seymour, 2 Sim. N. S. 12. 
 
 (x) Crabtree v. Bramble, 3 Atk. 680, see 688, 689 ; and see Griesbach v. Fre- 
 mantle, 17 Beav. 314. 
 
 (y) Harcourt v. Seymour, 2 Sim. N. S. 12, see p. 46. 
 
 (z) Edwards v. Countess of Warwick, 2 P. W. 174. 
 
 (a) Cited Crabtree v. Bramble, 3 Atk. 685. ^ 
 
 (b) Pulteney v. Darlington, 1 B. C. C. 237. 
 
 (c) Wheldale v. Partridge, 8 Ves. 236. (d) Bradish v. Gee, Amb. 229. 
 (e) See the cases cited, Lechmere v. Earl of Carlisle, 3 P. ^Y. 221, note (C) ; and 
 
 see Pulteney v. Darlington, 1 B. C. C. 235, 236. 
 (/) 7 W. 4, and 1 Yict. c. 26.
 
 MAXIMS OF EQUITY, ETC. 647 
 
 therefore may exercise any control or dominion over it — may convert 
 realty into personalty, or personalty into realty ; but equity, which regards 
 a trustee as a mere instrument for the execution of the trust, will not 
 permit the interest of the cestui que trust to be affected by any act of 
 misconduct, but, as often as any wrongful conversion is made, will transfer 
 to the new interest the quality and character of the old — will treat real 
 estate as personal, and personal as real, as the circumstances of the case 
 may require. But of course where a power (as a power of sale) is given 
 to a trustee, the mere circumstance that the exercise of it may vary the 
 rights of the cestuis que trust will not be allowed to fetter the free action 
 of the trustee. (/) 
 
 Where the cestui que trust is sui j\iris, every change in the nature of 
 the property made without the authority of the beneficial owner, must in 
 general be considered a misfeasance ; but with respect to lunacy and 
 infancy it is necessary that some distinctions should be taken. 
 
 It has been laid down as the general rule in lunacy, that the court will 
 not alter the condition of the lunatic's property to the prejudice of his 
 successors ; but the maxim must be received with the qualification, except 
 it he for the benefit of the lunatic himself. (^g) The chancellor takes the 
 advice and assistance of the presumptive next of kin and presumptive 
 heir-at-law in the care and management of the property ;(/t) but through 
 all the cases runs this prevailing principle — that *the object of r^onn-j 
 attention is exclusively and entirely the interest of the lunatic, L J 
 without any regard to those who may have eventual rights of succes- 
 sion. (*) 
 
 " Nothing," said Lord Loughborough, " would be more dangerous or 
 mischievous than for the court to consider how it would affect the repre- 
 sentatives : there would always be among them an emulation of each 
 other, and their speculations, if the administrator were to engage in them, 
 would mislead his attention, and confine his observation as to the interest 
 of the only person he is bound to protect ; there would be a continued 
 running account between the personal and real estates ; the chancellor 
 would be perpetually looking to the right or left, and the interest of the 
 lunatic would be committed in favour of those who have no immediate 
 interest, and whose contingent interests are left to the ordinary course of 
 events."(^-) 
 
 Upon this principle, where a lunatic was seised ex parte paternd of 
 estate A., and ex parte maternd of estate B., and the latter was subject 
 to a mortgage, the money arising from a fall of timber upon A. was 
 directed to be applied in discharge of the mortgage upon B. ; and upon 
 a question between the respective heirs it was held, that the representa- 
 
 (/) Lantsbery v. Collier, 2 Kay & Johns, 709. 
 
 (ff) Ex parte Grimstone, cited Oxenden v. Lord Compton, 4 B. C. C. 235, note, 
 per Lord Apsley. 
 
 (h) Ex parte Phillips, 19 Ves. 123, per Lord Eldon. 
 
 (ij Oxenden v. Lord Compton, 2 Ves. jun. 72 ; and S. C. 4 B. C. C. 233, per 
 Lord Thurlow ; and see Ex parte Bromfield, 1 Ves. jun. 4G2 ; Ex parte Grimstone, 
 Amb. 708 ; S. C. cited 2 Ves. jun. 75, note (x), and 4 B. G. G. 235, note ; Ex parte 
 Phillips, 19 Ves. 123 ; Dormers case, 2 P. W. 2G5 ; Ex parte Chumley, 1 Ves. jun. 
 297 ; Ex parte Baker, 6 Ves. 8. 
 
 (k) Oxenden v. Lord Compton, 2 Ves. jun. 72, 73 ; S. C. 4 B. C. C. 233, 234.
 
 (548 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 tive who succeeded to A. was not entitled to any recompense from the 
 representative who inherited B.(Z) 
 
 So, if the lunatic be considerably indebted, and it appears his main- 
 tenance would be better provided for, and his advantage promoted, by 
 the sale of a real estate inconvenient and ill-conditioned, instead of 
 exhausting the personalty, the court, on a proper representation of the 
 case, would have no difficulty in making an order to that eiFect.(m) 
 
 So, timber which ought to be cut on a lunatic's estate may be felled 
 r*Q97n by the direction of the court, and the proceeds may *either be 
 L ' ^" ' J applied to the redemption of the land-tax, or payment of debts, (») 
 or any other purpose which the true interest of the lunatic may require; 
 or if not wanted for any particular purpose, will go to the next of kin as 
 personalty, and not to the heir as part of the realty. (o) 
 
 Where the lands of the lunatic are in mortgage, and that whether they 
 have descended to him subject to the charge,(p) or the debt is the luna- 
 tic's own, (5) the chancellor, not ex necessitate, but feeling it to be pru- 
 dent when the personal estate can afford to disincumber the real estate,(>-) 
 will order the requisite sum to be applied ; and the next of kin after the 
 lunatic's decease will have no lien upon the real estate for the amount 
 expended. 
 
 So, if it be necessary for the interest of the real estate to bring an 
 action of trespass, resort may be had to the lunatic's personal fund.(.s) 
 
 And by the same rule the money of the lunatic may be laid out in 
 improvements -Jt) but here the chancellor must act tanquam honus pater- 
 familias, taking every opportunity of ameliorating the estate by fair and 
 ordinary means, such as draining, inclosures, &c.,(it) erecting a fire- 
 engine for the purpose of working a coal-mine, (v) but must not engage 
 in risks and dangerous adventures. (ic) And of course the personalty 
 may be drawn upon for necessary expenses, as repairs,(a') fines for re- 
 
 (/) Ex parte Phillip?, 19 Ves. 123, per Lord Eldon. 
 
 (m) Ex parte Phillips, 19 Ves. 124, per Lord Eldon. 
 
 (n) Ex parte Phillips, 19 Ves. 119; Bevan's case, cited Ex parte Bromficld, 1 
 Ves. jun. 455, 457. 
 
 (0) Ex parte Bromfield, 1 Ves. jun. 453; S. C. 3 B. C. C. 510; Oxenden v. 
 Compton, 2 Ves. jun. 69; S- C. 4 B. C. C. 231 ; Shelly's case, cited 1 Ves. jun. 
 437 ; Ex parte Phillips, 19 Ves. 124, per Lord Eldon. The dictum in Marquis of 
 Anandale v. Marchioness of Anandale, 2 Ves. 384, must be considered as over- 
 ruled. 
 
 {p) Dennis v. Badd, cited Winchelsea v. Norcliffe, 1 Vern. 436 ; but see Weld 
 V. Tew, Beat. 266. 
 
 {q) Ex parte Grimstone, Amb. 706 ; S. C. cited Oxenden v. Lord Compton, 4 
 B. C. C. 234 ; Dormer's case, 2 P. W. 262. 
 
 {r) Oxenden v. Lord Compton, 2 Ves. jun. 74, per Lord Thurlow. 
 
 («) Oxenden v. Lord Compton, 2 Ves. jun. 72, per Lord Loughborough. 
 
 (0 Sergeson v. Sealev, 2 Atk. 414, per Lord Hardwicke ; Dormer's case, 2 P. 
 W. 262. 
 
 (m) See Justice De Grey's argument in Ex parte Grimstone, cited Oxenden v. 
 Lord Compton, 2 Ves. jun. 75, note. 
 
 {v) Oxenden v. Lord Compton, 2 Ves. jun. 73. 
 
 (w) Oxenden v. Lord Compton, 2 Ves. jun. 73, per Lord Loughborough. 
 
 {x) Sergeson v. Sealey, 2 Atk. 414, per Lord Hardwicke ; Ex parte Grimstone, 
 Amb. 708 ; S. C. cited Oxenden v. Lord Compton, 4 B. C. C. 237, note, per Lord 
 Apsley ; 2 Ves. jun. 72, per Lord Loughborough ; Newport's case, cited, lb. ; la 
 re Badcock, 4 M. & Cr. 440. But it was said in this case, that " if the money were
 
 MAXIMS OF EQUITY, ETC. 649 
 
 newals *of leases, or admissions to copyliolcls.(j/) But where tlie pgpg-i 
 committees of a lunatic, who were entitled to the estate themselves L "'''J 
 after his death, laid out a sum in purchasing timber for repairs, when 
 they ought to have cut timber on the estate. Lord Hardwicke said, that, 
 having done so merely to serve their own interest, they should make good 
 the disbursement to the lunatic's next of kin. (z) 
 
 In the preceding cases the conversion has been for the clear benefit of 
 the lunatic, but in general the court will not lightly change the condition 
 of the property, but will only act on pressing and urgent occasions :(a) 
 it will interfere with great caution, and do nothing that is unnecessary 
 or uncalled for. (?y) The court will not huy and sell tor the lunatic ;(c) 
 and, therefore, if the committee of the lunatic wantonly, and of his own 
 head, lay out money upon land, or turn land into money, the court will 
 not suffer such fraudulent mangament to affect the rights of the repre- 
 sentatives,(f7) but will transfer to the heir what ought to have remained 
 real estate, and to the next of kin what ought to have remained personal 
 estate. (e^ However, if timber be cut down, not by a committee in breach 
 of his duty, but by a stranger tortiously, then, as there is no abuse of 
 confidence, the heir has no equity, and *the property of the tim- r:i.g29-| 
 ber, like a windfall, will belong to the executor. (/) L "" J 
 
 Next, as to infants. 
 
 In Ex parte Bromfield, Lord Thurlow, without having examined the 
 authorities, said he could not distinguish between lunatics and infants •,{g) 
 but, when the cause came on again, and he had maturely considered the 
 subject, he never once hinted at the existence of such a doctrine ;(/<) 
 and, indeed, until the late Wills Act, there was a very broad distinction 
 between the two cases; for, if a lunatic recovered, which in contempla- 
 tion of law is always possible, he had precisely the same power of dispo- 
 sition, though by different modes, over one species of property as over 
 the other ;(t) but an infant, while he could have bequeathed personal 
 estate under the age of twenty-one, could not have devised a freehold 
 
 laid out in a purchase of land, or, what was the same thing, in building a farm- 
 house, it would be right that the sum so laid out should retain its character of 
 personalty. 
 
 [y) Justice De Grey's argument in Ex parte Grimstone, supra ; but see Degg's 
 case, cited Oxenden v. Lord Compton, 4 B. C. C. 235, note. 
 
 (z) Ex parte LudloTV, 2 Atk, 407. 
 
 (ff) Ex parte Bromfield, 1 A^es. jun. 463, and 3 B. C. C. 515, per Lord Thurlow. 
 
 {b) Oxenden v. Lord Compton, 2 Ves. jun. 76, and 4 B. C. C. 238, per Lord 
 Loughborough. 
 
 (c) Oxenden v. Lord Compton, 2 Ves. jun. 73, per Lord Loughborough; Ex 
 parte Grimstone, cited in Oxenden v. Lord Compton, 4 B. C. C. 235, note, per 
 Lord Apslev; Sergeson v. Sealey, 2 Atk. 414, per Lord Hardwicke. 
 
 {d) See Ex parte Bromfield, 1 Ves. jun. 462. 
 
 [e) Anoa. case, 2 Freem. 114; Awdley v. Awdley, 2 Vern. 192; Marquis of 
 Anandale v. Marchioness of Anandale, 2 Ves. 384, per Lord Hardwicke ; and see 
 In re Badcock, 4 M. & Cr. 440. 
 
 (/) Anon, case, cited Ex parte Bromfield, 1 Ves. jun. 462, and 3 B. C. C. 515, 
 per Lord Thurlow. 
 
 {g) 1 Ves. jun. 461 ; S. C. 3 B. C. C. 515. 
 
 {h) Oxenden v. Lord Compton, 2 Ves. jun. 69 ; S. C. 4 B. C. C. 231. 
 
 (i) See Ex parte Phillips, 19 Ves. 123. 
 
 April, 1858.— 42
 
 650 
 
 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 until he had attained that age.(A-) The court, therefore, would not allow 
 an infant's estate to be converted from one species of property into ano- 
 ther, not from any tenderness to the rights of the representatives, but 
 from a regard to the circumstances and capacity of the infant himself. 
 Should his money have been turned into land, he would have lost a 
 power of disposition which the law permitted him to exercise : should 
 land have been turned into money, he would indirectly have gained a 
 power which the policy of the law had forbidden him.(?) 
 
 Upon the same principle, had timber been cut an an infant's estate, 
 the proceeds, and, it seems, the accumulation of the proceeds,(m) would 
 „-, have continued part of the realty, and have ^descended to the 
 L J heir.(?i) But a distinction was taken in Mason v. 3Iason,(o) (and 
 Sir Thomas Clarke said he allowed it,)(p) between the case of an infant 
 tenant in fee and an infant tenant in tail : that in the former case the 
 proceeds of the timber should be taken as realty, inasmuch as the infant 
 was thus at all events absolutely entitled ; but in the latter case, as the 
 proceeds might, if impressed with the character of realty, become vested 
 in the remainderman, the court would treat the fund as personalty, and 
 give it to the infant's executors. 
 
 Again, if an infant's money had been applied to pay off a charge, or 
 redeem a mortgage affecting his real estate, it seems the better opinion 
 (though some old authorities are against it,) that the sum so invested 
 would still have been looked upon as part of the personalty. (5-) 
 
 But necessary expenses, though affecting the infant's lands, were 
 allowed to be thrown upon the personal fund, as disbursements for re- 
 pairs, (r) for keeping up a house, &c.(s) 
 
 So in Vernon v. Vernon, (;) where an estate was devised to an infant 
 in consideration of his paying the sum which the original purchase had 
 cost, it was held, that the amount, being a necessary outlay, had proper- 
 ly fallen upon the personalty, and the next of kin were not entitled to 
 compensation. 
 
 {k) See Earl of Winchelsea v. NorcliflFe, 1 Vern. 437, in which case the distinc- 
 tion appears first to have been noticed. 
 
 [I) Ware V. Polhill, 11 Ves. 278, and Ex parte Phillips, 19 Ves. 122, per Lord 
 Eldon; Ashburton v. Ashburton, 6 Ves. 6; Sergeson v. Sealey, 2 Atk. 413, and 
 Rook V. Worth, 1 Ves. 461, per Lord Hardwicke : Witter v. Witter, 3 P. W. 99; 
 but see Earl of Winchelsea v. Norcliffe, 1 Vern. 4i35 ; Inwood v. Twyne, 2 Ed. 
 152 ; Ex parte Bromfield, 1 Ves. jun. 461. 
 
 (to) See Ex parte Bromfield, 1 Ves. .jun. 454. 
 
 (II) Tullet V. TuUet, 1 Dick. 322 ; S. C. Amb. 370 ; Mason v. Mason, cited lb. 
 371 ; Ex parte Phillips, 19 Ves. 124, per Lord Eldon; and see Rook v. Worth, 1 
 Ves. 461 ; but see Ex parte Bromfield, 3 B. C. C. 516. 
 
 (0) Ubi supra. {p) Tullet v. Tullet, Amb. 371. 
 
 {q) Ex parte Bromfield, 3 B. C. C. 516, per Lord Thurlow ; Tullet v. Tullet, 1 
 Dick. 323, per Sir T. Clarke ; Seys v. Price, 9 Mod. 220, per Lord Hardwicke ; 
 Dowling V. Bcllon, 1 Flan. & Keller, 462; but see 2 Freem. 114, c. 126 ; Ex parte 
 Grimstone, Amb. 708 : Palmes v." Danby, Pr. Ch. 137 ; Zoach v. Lloyd, cited 
 Awdley v. Awdley, 2 Vern. 192 ; as to Dennis v. Badd, cited lb. 193, see Earl of 
 Winchelsea v. Norcliffe, 1 Vern. 436. 
 
 (r) Ex parte Grimstone, cited Oxenden v. Lord Compton, 4 B. C. C. 235, note, 
 per Lord Apsley. 
 
 (*) Ex parte Grimstone, Amb. 708, ^er eundem. 
 
 {t] Cited in Ex parte Bromfield, 1 Ves. jun. 456.
 
 STATUTORY ENACTMENTS, ETC. 651 
 
 There were some cases to which the reason for preserving the original 
 character of the property did not apply. Thus, if *an infant r=,:<^3-^-| 
 was seised of a lease for lives ex parte mateniCi, and the guardian L J 
 took a new lease to the infant and his heirs, the substituted lease would 
 not descend in the maternal line, but, as a new acquisition, would go to 
 the heirs on the part of the father ;(w) but it being perfectly immaterial 
 to the infant himself whether the seisin was in the paternal or maternal 
 line, the representative ex parte maternd had no equity against the 
 representative ex parte jmfernd. 
 
 Now, by the late Wills Act(w) an infant has no greater testamentary 
 power over personal than over real estate, and it would seem, therefore, 
 that in all cases the principles which have been stated with reference to 
 lunatics must henceforth be regarded as applicable equally to infants. 
 
 *CHAPTER XXVIII. [*832] 
 
 OF STATUTORY ENACTMENTS FOR REMEDYING THE INCONVENIENCES 
 ARISING FROM THE DISABILITY OF THE TRUSTEE AND OTHER DE- 
 FECTS CONNECTED WITH THE STATE OF THE TRUSTEESHIP. 
 
 It frequently happens that the cestui que trust is in equity entitled to 
 call for a conveyance, but from the disability of the trustee, or some other 
 accidental circumstance, the object of the party cannot by the ordinary 
 course of law be carried into effect. To obviate the prejudice to which 
 in these cases the interest of the cestui que trust might be liable, the 
 leo-islature has from time to time interposed its aid by remedial statutes. 
 
 The first act of the kind was the 7 Anne, c. 19, which provided for 
 the case of infancy in respect of lands. It was thereby declared that 
 « it should be lawful for infants having estates in lands only in trust for 
 others, or by way of mortgage, by the direction of the Court of Chancery 
 or Exchequer, by order made on the petition of the cestui que trust, 
 mortgagor, or other person interested, to convey the said lands as the Court 
 of Chancery or Exchequer should direct." 
 
 This statute was held to extend neither to constructive trusts,(a) 
 (except, perhaps, after a decree had established the right,)(Z*) nor to cases 
 where the infant himself possessed an interest,(r') nor where any personal 
 
 (m) Mason v. Day, Pr. Cb. 319 ; Pierson v. Shore, 1 Atk. 480. 
 
 (v) 1 W. 4, and 1 V. c. 26. 
 
 (a) Goodwyn v. Lister, 3 P. W. 387 : Anon, case, cited lb. 389, note (A) ; Jer- 
 don V. Foster, cited Sanders on Uses, 356, 4tb Edit. ; Sikes v. Lister, 5 Vin. Ab.» 
 541 ; In re Janaway, 7 Price, 679 ; but see Ex parte Vernon, 2 P. W. 549 ; Smith 
 V. Hibbard, 2 Dick. 730. 
 
 (6) Price v. Oneby, cited Fearne's P. W. 239 ; Hawkins v. Obeen, 2 Ves. 559. 
 
 (c) Hawkins v. Obeen, ubi supra; Ex parte Sergison, 4 Ves. 147; Ex parte 
 
 Tutin, 3 V. & B. 149; v. Handcock, 17 Ves. 384, per Lord Eldon ; and see 
 
 Ex parte Bellamy, 2 Cox, 422 ; Ex parte Carter, 2 Dick. 609.
 
 fj52 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 duty was imposed upon the *trustee,((Z) though all the cesfins 
 [*833] ^^^^ ^^^^^^ j^jgj^j. i^g billing to concur. (e) The act directing the 
 application to be made \)-^ lietition, the court considered such an interlo- 
 cutory method to indicate an intention of remedying only the i^lainest 
 
 cases of trust. 
 
 The next statute was the 4 Geo. 2, c. 10, which provided for the disa- 
 bility of lunacy in respect of lands. It was thereby enacted that << it 
 should be lawful for idiots, lunatics, and persons non compos having 
 estates in lands only in trust for others, or by way of mortgage, or for 
 their committees, by the direction of the lord chancellor on petition to 
 convey the lands whereof such idiots, lunatics, or persons non compos 
 should be seised or possessed on trust or by way of mortgage, as the lord 
 chancellor should direct." 
 
 This statute, as it followed the language, so it received the interpreta-* 
 tion of the statute of Anne : and it was held not to apply to constrnctive 
 trusts, or to cases where the trustee was concerned in interest, or had 
 any duty to perform. (/) Nor did the act extend to a lunatic who had 
 not been expressly found such by inquisition. (^) 
 
 Hitherto the remedial enactments had reference to lands only but by 
 the 36 Geo. 3, c. 90, the legislature provided for similar inconveniences 
 in respect of stock. The statute declared, that <' when trustees of stock 
 or the personal representatives of such persons deceased should be out of 
 the jurisdiction or not amenable to the process of the court, or should 
 be hanJcrupts or lunatics, or should refuse to transfer the stock, or 
 L -I *it should be uncertain or unhnown whether they were living or 
 dead,(h) it should be lawful for the Court of Chancery or Exchequer in 
 any cause depcndinp; to direct or order a transfer of such stock." 
 
 This statute also was held not to apply to lunatics who had not been 
 found such by inquisition ;(t) a defect which, however, was afterwards 
 remedied by 1 & 2 Geo. 4, c. 114. 
 
 The enactments of the preceding statutes were all consolidated and 
 amended by the 6 Geo. 4, c. 74, and provision was further made for the 
 case of a trustee possessing an interest, or having a duty to perform ; but 
 still the court had no jurisdiction where the trust was constructive,{1c) 
 though it seems the bill originally contained such a clause, but Lord 
 Redesdale objected to it strongly, and it was struck out.(?) 
 
 {d) Ex parte Tutin, 3 V. & B. 149 ; Riggs v. Sykes, 1 Dick. 400. But in Attor- 
 ney-General V. Porafret, 2 Cox, 221, Lord Alvanley held, that where new trustees 
 were duly appointed, the circumstance of a duty to perform would not take the 
 case out of the statute, for by the conveyance to the new trustees the duty as re- 
 garded the old trustees would cease, and be laid upon others : but if there were no 
 appointment of new trustees, then the statute would not apply. 
 
 (e) Ex parte Chasteney, 1 Jac. 56. 
 
 (/) Ex parte Currie, 1 J. & W. 642 ; Ex parte Tutin, 3 V. & B. 149. 
 
 (g) Ex parte Gillam, 2 Ves. jun. 587 ; and see Ex parte Otto Lewis, 1 Ves. 298. 
 
 (A) It is almost unnecessary to observe, that in the case of infancy no remedy was 
 needed in respect of stock ; for if the executor of a trustee happened to be an in- 
 fant, administration might have been granted to a stranger durante minoritate. 
 
 (i) See Sylva v. Da Costa, 8 Ves. 316 ; Simms v. Naylor, 4 Ves. 360 ; West v. 
 Ayles, 1 Turn. & Russ. 330. 
 
 {k) King V. Turner, 2 Sim. 549; Dew v. Clarke, 4 Russ. 511; In re Moody, 
 T:T.ml. 4. (;) Dew v. Clarke, 4 Russ. 514.
 
 STATUTORY ENACTMENTS, ETC. 653 
 
 This statute was afterwards repealed, and the provisions of it, with 
 material alterations, additions, and improvements, were re-enacted by 
 Lord St. Leonards' Act, the 11 G. 4, and 1 W. 4, c. 60. This last 
 statute has also since been repealed, but as its enactments must still be 
 referred to in the case of titles derived under it, the leading provisions 
 together with the more important decisions upon them will be shortly 
 stated. 
 
 The third, fourth, and fifth sections related exclusively to lunatics, 
 idiots, persons of unsound mind, and persons incapable of managing their 
 affairs, (m) who were trustees(n) or mortgagees. By the third and fourth 
 sections, the committee of the estate(o) of a lunatic, idiot, or no n com-pos, 
 *might, by direction of the lord chancellor, [p) convey the lands(5) r*g35-| 
 or transfer the stock ; and by the fifth section, where the lunatic L J 
 had not been found such by inquisition, and so there was no committee, 
 the lord chancellor might appoint a person to make the conveyance or 
 transfer ; but not if any sum of money exceeding 700?. was payable to 
 the lunatic. M 
 
 The sixth section remedied the disability of infancy in respect of 
 Ianch{s) vested in infants upon trust or by way of mortgage,(/) and ena- 
 bled them to convey under the direction of the court, such conveyance 
 to be as valid as if the infants were adult. (w) 
 
 im) See In re Wakeford, 1 Jones & Lat. 2 ; In re Jones. 6 Jur. 545 ; Walker, 1 
 Cr. & Ph. 147. 
 
 {n) A decree for sale having been made in a creditor's suit, the tenant for liie 
 (a lunatic) was held bj' the effect of the decree to have become a trustee within 
 the act; Re Milfield, 2 Phill. 254; 5 Hare, 538. And see Thomas v. Gwynne, 9 
 Beav. 275 ; and the cases referred to at note (e), p. 839. 
 
 (o) Not an ad interim committee ; Re Poulton, 1 Mac. & Gor. 100. 
 
 (|)) The lord chancellor having jurisdiction in respect of lunatics and idiots, 
 not as presiding over a court of equity, but by virtue of an authority specially 
 delegated to him by the crown ; a vice-chancellor could neither direct the refer- 
 ence to the master in the first instance, nor make the final order ; In re Shorrocks, 
 
 1 M. & C. 31, overruling Anon, case, 5 Sim. 322 ; In re Mount, 12 L. J. N. S. Ch. 
 ;)5. So, what had been found in another court, as the exchequer, could not be 
 adopted by the lord chancellor, but a new reference must have been directed. In 
 re Brideaux, 2 M. & C. G40. 
 
 {q) Bengal government notes were lands as defined by the act ; Re Dyce 
 Sombre, 1 Mac. & Gor. 101. 
 
 (r) See Re Sandford, 2 Hall. & Tw. 137. 
 
 (s) In the construction of former acts, it was held that lands in the colonies, 
 Ex parte Fenniliteau, 2 Dick. 569 ; Ex parte Bosanquet, lb. 540 ; Ex parte Prosser, 
 
 2 B. C. C. 325 ; and in the territories of the East India Company ; Ex parte 
 Anderson, 5 Ves. 240; and in Ireland, Evelyn v. Forster, 8 Ves. 96 ; were includ- 
 ed. By sections 26 and 29 of this act its provisions were expressly extended to 
 lands abroad within the queen's dominions; but lands abroad out of the queen's 
 dominions were not within the statute. Price v. Dewhurst, 8 Sim. 617. 
 
 (0 See Prendergast v. Eyre, LI. & G. t. Sugd. 11 ; Re Kent, 9 Sim. 501 ; Ex 
 parte Ommaney, 10 Sim. 298 ; Re Barry, 2 Jones & Lat. 1 ; Peyton v. M'Dermott, 
 G Ir. Eq. Rep. 220 ; Goddard v. Macaulay, 6 Ir. Eq. Rep. 221. 
 
 (?/) As the conveyance of an infant under the act would only be as effectual as 
 if he were adult, it was necessary to see that the conveyance would be effectual 
 were the infant of age. Thus, before the abolition of fines and recoveries, had the 
 trustee devised the estate to an infant in tail, the conveyance must have been by 
 recovery ; Ex parte Johnson, 3 Atk. 559 ; Ex parte Smith, Amb. 624. So, if the 
 infant had been a feme covert, the conveyance must have been by fine ; Ex parte 
 Maire, 3 Atk. 479 ; Ex parte Bowes, 3 Atk. 164. When fines and recoveries were 
 abolished, the assurance must have been attended with the formalities required by
 
 (354 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 The eio-hth section remedied sundry other inconveniences in 
 [*8.j6J ^^j^^ ^^gg ^j freeholds (that is, of freeholds in interest, whether 
 of freehold or copyhold tenure ;)(v) and it was thereby enacted, that 
 ^ -,„ where any person seised of land(%-) upon any trust(cc) *should be 
 L 'J out of the jurisdiction or not amenable to the process of the court, 
 or it should be uncertain, v;here there ivere several trustees, ivhich of them 
 was the survivor, or it should be uncertain whether the trustee last knov:n 
 to have been seised{}/) as aforesaid was living or dead, or if known to be 
 dead it should not be known who was his heir,{z) or if any trustee seised 
 as aforesaid, or the heir of any such trustee, should neglect or refuse to 
 
 the Fines and Recoveries Act ; See Radcliffe v. Eccles, 1 Keen, 130 ; Penny v. 
 Pretor, 9 Sim. 135. 
 
 («) The second section defined "lands" to include real property oi any tenure. 
 But as to copyholds see Queen V. Pitt, 10 Ad. & Ell. 272. 
 
 (w) An estate was devised to the use of the poor of a parish, and it did not 
 appear in -whom the legal estate was vested, and the case was held not to be 
 within the act ; Attorney-General v. Randies, 8 Beav. 185. But see Re Gore's 
 Charity, 4 Drur. & W. 270. 
 
 (x) It was at first held, that this did not include a complicated trust; Ex parte 
 Merry, 1 M. & K. 677 ; but the 12th section authorizing the court, where it should 
 be proper, to direct a bill to be filed to establish the right, it was afterwards ruled 
 that the court had a discretion of making an order in such a trust upon an ex 
 parte application ; In re De Clifford, 2 M. & K. 624, 820. 
 
 So it was originally the opinion of the court, that " trust" did not include a 
 viortgage ; la re Goddard, 1 M. & K. 25 ; Ex parte Payne, 6 Sim. G45 ; In re Stan- 
 ley, 5 Sim. 320; In re Dearden, 3 M. & K. 508 ; and see Prendergast v. Ej're, 
 Lloyd & Goold, t. Sugden, 11. But the Escheat and Forfeiture Act (4 & 5 W. 4, 
 c. 23, s. 2,) declaring, that " where any person seised of any land upon any trust 
 or by way of mortgage died without an heir, it should be lawful for the court of 
 chancery to appoint a person to convey in like mianner as was provided" (by the 
 11 G. 4," and 1 W. 4, c. 60,) "in case such trustee or 7nortgagce had left an heir and 
 it was not known who was such heir," it was held, as the legislature could best 
 interpret its own provisions, that the 8th section of the act did extend to a mort- 
 gage ; Ex parte Whitton, 1 Keen, 278 ; In re Stanley, 7 Sim. 170 ; In re Wilson, 8 
 Sim. 393. 
 
 A supplemental act was afterwards passed (1 & 2 V. c. 69,) the effect of which 
 was, that for the time to come the relief was confined to the case of a mortgagee 
 dying seised without having had possession, and where the mortgage money should 
 have been or should be paid ; and the word trust, in the 8th section of Lord St. 
 Leonards' Act, was restricted from being construed to comprise a mortgage ; 
 Green V. Holden, 1 Beav. 207 ; Spunner v. Walsh, 10 Ir. Eq. Rep. 214. As the 
 statute recited only the 8th section of Lord St. Leonards' Act, it is presumed it 
 was not meant to repeal \hQ previous sections rel&img to mortgages, and apparently 
 the master of the rolls was of this opinion ; see Green v. Holden, ubi supra. It is 
 remarkable that the decisions of the vice-chancellor of England, In re Williams, 9 
 Sim. 642, and In re Thompson, 12 Sim. 392, though the latter at least was correct 
 if the mortgagee was never in possession, appear to have been made without refer- 
 ence to the 1 & 2 Vict. c. 69. 
 
 A mortgagor against whom a decree for sale was taken by an equitable mortga- 
 gee, became thereby a trustee for sale, and if he went out of the jurisdiction or was 
 of unsound mind the court appointed a person in his place to execute a convey- 
 ance for giving effect to the sale : King v. Leach, 2 Hare, 57; Barfield v. Rogers, 
 8 Jur. 229 ; and see Hood v. Hall, 14 Jur. 127. 
 
 And when the mortgage money had been paid, the heir of the mortgagee was a 
 trustee for the mortgagor, and a petition for a reconveyance should have been pre- 
 sented not by the executors of the mortgagee, but by the mortgagor ; In re Mani- 
 fold, 4 Hare, 308. 
 
 (y) Qu. if this was applicable to the seisin of the husband where he and his 
 wife were seised in right of the wife; see Moore v. Vinten, 12 Sim. 161. 
 (2) See In re Bishop Gore's Charities, 2 Conn. & Laws. 41 1. 
 
 II
 
 STATUTORY ENACTMENTS, ETC. 655 
 
 convey such lands for the space of twenty-eight days next after a proper 
 deed for making such conveyance shoidd have been tendered for his 
 execution by, or by an agent didy authorized by, any person entitled to 
 require the same,{a^ it should be lawful for the court to appoint a person 
 iu the place of the trustee or heir to convey, such conveyance to be as 
 effectual as if the trustee or heir had made and executed the same. 
 
 The ninth section remedied certain inconveniences relating to chattels 
 real, and enacted that where any person possessed of land for a term of 
 years upon trust(i) should be out of the jurisdiction or not amenable to 
 the process of the court, or it ^should be uncertain whether the r-^Qoo-\ 
 trustee last known to have been possessed as aforesaid should be *- -> 
 living or dead,(c^ or if any trustee as aforesaid, or the executor of any 
 such trustee, should neglect or refuse, &c., (as in the former clause,) it 
 should be lawful for the court to appoint a person to make a vicarious 
 assignment or surrender, such assignment or surrender to be as valid as 
 if made by the trustee or executor. 
 
 The tenth section related to inconveniences in respect of stock, and 
 enacted, that where any person in whose name as a trustee or executor 
 (either alone or together with the name of any other person,) or in the 
 name of whose testator (whether as a trustee or beneficially,)(cZ) any 
 stock should be standing, or any other person who should otherwise have 
 power to transfer, or join with any other person in transferring, any 
 stock to which some other person should be beneficially entitled, should 
 
 (fit) The tender must have been made by " some person entitled to require a 
 conveyance.'' What would amount to such a tender was often a question. A 
 person duly nominated a new trustee under a power for that purpose was entitled 
 to require a conveyance to give effect to the appointment ; In re Law, 4 Beav. 509. 
 And if the court decreed a sale with a direction that all necessary parties should 
 join in the conveyance that converted the owner of the estate into a trustee for the 
 purposes of the decree, and if a conveyance settled by the master had been ten- 
 dered to him, and he neglected or refused to execute it for twentj'-eight days, the 
 court, on the petition of the purchaser or other person interested, ordered a person 
 to convey in the place of the party so neglecting or refusing: Warburton v. Vaughan, 
 4 Y. & C. 247; Billing v. Webb, 1 De Gex & Sm. 716; Robinson v. Wood, 5 
 Beav. 246. Note, The refusing trustee need not and ought not to have been 
 served with the petition ; Re Burntree Building Society, 16 Sim. 296; and see In 
 re Bradburne, 12 L. J. N. S. Ch. 353. 
 
 (b) In a foreclosure suit by an equitable mortgagee of leaseholds, the plaintiff 
 having obtained a decree for sale, the defendant, the mortgagor, was held to have 
 been thereby converted into a trustee for the plaintiff; King v. Leach, 2 Hare, 
 57 ; and see Re Milfield, 2 Phil. 254. 
 
 (c) The words in the preceding clause, " where it should be uncertain, where 
 there were several trustees, which of them was the survivor," were here omitted ; 
 for in respect of chattels the personal representatives of both the trustees might 
 assign, or if there were no such representatives, administration might be taken 
 out to both. It was not intended to provide by the act for any case which could 
 be remedied in any other mode ; see In re Anderson, L. & G. t. Sugd. 28. 
 
 (d) A person was an executor within the meaning of this clause before probate, 
 if he had not renounced ; see Ex parte Winter, 5 Rus. 284. 
 
 A testator gave a sum of consols to A., B., and C, in trust for D. for life. All 
 the trustees died, and the survivor appointed two executors. D. applied to one exe- 
 cutor to prove, who refused, and the other was out of the jurisdiction. Held to 
 be within the act; Ex parte Hagger, 1 Beav. 98; and see Cockell v. Pugh, 6 
 Beav. 293. From the words " in the name of whose testator," it was ruled that 
 the clause did not apply to the case of a trustee dying intestate; Re Lunn's 
 Charity, 15 Sim. 464.
 
 (356 LEWIN ON THE LAW OF TRUSTS, ETC 
 
 be out of the jurisdiction or not amenahle to the process of the court,{e) 
 or it should be uncertain tvhether such person teas living or dead, or if 
 any such trustee or executor or other person should neglect or refuse{f ) 
 to transfer such stock, or receive and pay over the dividends thereof to the 
 person entitled thereto or to any part thereof respectively, for the space 
 of thirty-one *days after request{g)in writing hy the person en- 
 [ ^^'^J titled as aforsaid,{h) the court might appoint a person to transfer 
 the stock, or receive and pay over the dividends, such transfer, receipt, 
 or payment to be as cflFectual as if made by such trustee, executor, or 
 other person. 
 
 The eleventh section determined the mode of application, by declaring 
 that every direction or order to be made under the act should be signified 
 either by an order made in any cause dejjending in the court,(^i'j or upon 
 petition in the lunacy or matter ;{k) and where the order was made on 
 petition, declared who, according to the circumstances of the case, should 
 be the petitioner. 
 
 The fifteenth section provided that the act should extend to trustees 
 having an interest or having a duty to perform, and the sixteenth and 
 seventeenth made special provision for certain cases of specific perform- 
 ance. 
 
 The eighteenth section extended the provisions of the act to every case 
 of a constructive trust or of a trust arising or resulting by implication of 
 law, but where the alleged trustee had or claimed a beneficial interest, 
 no order was to be made until after it had been declared by the Court of 
 Chancery, in a suit regularly instituted in such court, that such person 
 was a trustee.(?) And cases of election and partition were expressly 
 excepted. 
 
 r*Qim *% ^^^ Trustee Act, 1850, (13 & 14 Vict. c. 60,) and 1 & 2 
 L ^^^J Vict. c. 69, the 1 W. 4, c. 60, and 4 & 5 W. 4, c. 23, were re- 
 
 («) Where a trustee (one of the plaintiffs in a suit) commanded a mercliant 
 vessel, and was on bis voyage to India, it was held he was not out of the jurisdic- 
 tion within the meaning of the act; Hutchinson v. Stephens, 5 Sim. 498 ; and see 
 Ex parte Dover, 5 Sim. 500. 
 
 (/) Refusing to transfer for a just cause was of course no ground for an appli- 
 cation to the court ; Pepper v. Tuckey, 2 Jones & Lat. 95 ; Re Moloney, ib. 391. 
 
 (g) An order of the court could not be construed to be the request of a party ; 
 Madge v. Riley, 3 Y. & C. 425. 
 
 (A) See Re Law, 4 Beav. 509 ; Cockell v. Pugh, 6 Beav. 293 ; and note (a), p. 
 837, supra. 
 
 (i) Where a suit was depending, the order might have been made on the decree 
 without a petition; Miller v. Knight, 1 Keen, 129; Broom v. Broom, 3 M. & K. 
 443; Walton v. Merry, 6 Sim. 328; overruling Fellowes v. Till, 5 Sim. 319; 
 Prytharch v. Havard, 6 Sim. 9. The order was also sometimes made on motion 
 subsequently to the decree ; Callaghan v. Egan, 1 Drury & Walsh, 187. 
 
 {k) The order could not have been made upon motion, instead of petition, where 
 there was no lis pendens ; Evelyn v. Forster, 8 Ves. 96 ; Baynes v. Baynes, 9 Yes. 
 462 ; and see Anon. 1 Y. & C. 75. 
 
 [l) The various orders to convey, &c., made under the preceding sections, in 
 cases of decrees for sale in suits by mortgagees and creditors, must be viewed as 
 deriving their force from this section ; see Prendergast v. Eyre, LI. & G. t. Sugd. 
 11 ; Warburton v. Vaughan, 2 Y. & C. 247 ; King v. Leach, 2 Hare, 57 ; Jackson 
 V. Milfield, 5 Hare, 538. From the last case, and Re Milfield, 2 Phil. 254, it 
 appears that an express declaration in the decree of the fact of trusteeship was 
 not necessary. Of course if a sale be directed by the court without jurisdiction 
 the act cannot apply; Calvert v. Godfrey, 6 Beav. 97.
 
 PLEADING AND PRACTICE. 657 
 
 pealed, and their provisions consolidated and extended. The chief 
 feature of the act, in connection with the subject of this chapter, was the 
 authority given to the court to devest the legal estate out of the person 
 from whom a conveyance might be desired, and vest it in the proper 
 person or persons by the mere order of the court itself, now familiarly 
 known as a vesting order. Additional facilities were also created for 
 dealing with shares in public companies, and " choses in action" held 
 upon trust. 
 
 The provisions of this act having been found defective in some respects, 
 they were again extended by 15 & 16 Vict. c. 55. 
 
 These two acts, with the decisions of the court upon the construction 
 of the different clauses, will be found in extenso at the end of the Trea- 
 tise. 
 
 *CHAPTER XXIX. [*841] 
 
 PLEADING AND PRACTICE IN REFERENCE TO THE LAW OF TRUSTS. 
 
 Under this head we propose considering, First, The necessary parties 
 to suits relating to trusts ; Secondly, The order and manner in which 
 trustees and cestuis que trust ought to sue or defend; Thirdly, Distringas; 
 Fourthly, Compulsory payment into court; Fifthly, Eeceivership; Sixthly, 
 Costs of suit. 
 
 SECTION I. 
 
 OF NECESSARY PARTIES. 
 
 It will be more convenient, first, to state the general practice, and then 
 to mention the modifications introduced by statutory enactment and the 
 orders of the court. 
 
 Suits in equity affecting trusts are either between strangers on the one 
 hand, and the persons interested in the trust on the other ; or between 
 the persons interested in the trust inter se. 
 
 I. In suits by or against strangers it is a general rule (unless some 
 enactment or order of the court make an exception) that all the trustees 
 and cestuis que trust, who together constitute but one interest, must be 
 made parties. (a) 
 
 Thus where a mortgage is made to A. in trust for B., the p^o .9-1 
 *latter cannot file a foreclosure bill without making A. a party, L "'J 
 who on redemption would be the person to convey the legal estate. (Z^) 
 And, in the case of a contract to convey to A. in trust for B., the latter 
 
 {a) Bifield v. Taylor, 1 Moll. 198, per Sir A. Hart; Adams v. St. Leger, 1_^B. & 
 B. 184, per Lord Manners. 
 
 (b) Wood V. Williams, 4 Mad. 186 ; Scott v. Nicoll, 3 Russ. 47G ; Hicheus v. 
 Kelly, 2 Sm. & Gif. 264.
 
 058 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 cannot sue for specific performance without A., to whom the conveyance 
 of the legal estate, if at all, will be decreed.(c) 
 
 So one of several cestuis que trust cannot file a bill of foreclosure((/) 
 or redemption{t') without bringing before the court the other cestuis que 
 trust who are interested in the mortgage or equity of redemption. 
 
 So a morto-a^ee could not foreclose without making all the cestuis que 
 trust, claiming'^under the mortgagor, parties ;(/) and a mortgagor could 
 not file a bill to redeem without bringing before the court all the cestuis 
 que trust interested in the mortgage.(5') However, it was observed by 
 Lord Hardwicke that « where a mortgagee, who had a plain redeemable 
 interest, made several conveyances upon trust in order to entangle the 
 affairs, and render it difficult for the mortgagor or his representatives to 
 redeem, there it was not necessary that the plaintiff should trace out all 
 the persons who have an interest in such trust to make them parties. "(A) 
 
 If A. grant an annuity to B., and vest a term in C. to secure it, A. 
 cannot file a bill against B. to set aside the annuity without making C. a 
 party, for A. might have to institute another suit against C. to get the 
 legal estate, and then B. (who would again be a necessary party) would 
 be doubly vexed. (z) 
 
 *It was laid down by Lord Redesdale, that, " Trustees of real 
 L -J estate for payments of debts or legacies might sustain a suit, 
 either as plaintiffs or defendants without bringing before the court the 
 creditors or legatees for whom they were trustees, which in many cases 
 would be almost impossible, and the rights of creditors or legatees would 
 be bound by the decision of the court against the trustees. "(A;) But in 
 Harrison v. Stewardson,0 V. C. Wigram, upon this passage being re- 
 ferred to, observed " that it was impossible to say the practice of the 
 court was in conformity with the passage which had been cited," and he 
 held, in the case before him, in which the deed was for the benefit of 
 twenty-one scheduled creditors, and only three were before the court, 
 that it was necessary to make all the creditors parties." 
 
 Again, it was also said by Lord Redesdale, that '' persons having de- 
 mands prior to the creation of a trust, might enforce those demands 
 against the trustees without bringing before the court the persons 
 
 (c) Cope V. Parry, 2 J. & W. 538; Hobson v. Staneer, 9 Mod. 83. 
 
 (d) Palmer v. Lord Carlisle, 1 S. & S. 423; Lowe v. Morgan, 1 B. C. C. 368 ; 
 Note, The decree iu Montgomerie v. Marquis of Bath, 3 Ves. 3G0, was made with- 
 out opposition, though it is not expressed (see 1 S. & S. 425,) to have been made 
 by consent. 
 
 (e) Palmer v. Lord Carlisle, 1 S. & S. 425 ; per Sir J. Leach ; Henley v. Stone, 
 3 Beav. 355. 
 
 (/) Calverley v. Phelp, 6 Mad. 229 ; and see Wilton v. Jones, 2 Y. & C. Ch. Ca. 
 244; Thomas v. Dunning, 5 De Gex. & Sm. 618 ; Anderson v. Stather, 2 Coll. 209. 
 
 {g) Osborne v. Fallows, 1 R. & M. 741 ; Whistler v. Webb, Bunb. 53 ; Yates v. 
 Hambly, 2 Atk. 237 ; Drew v. Harman, 5 Price, 319; Wetherill v. Collins, 3 Mad. 
 255. 
 
 (h) Yates v. Hambly, 2 Atk. 237 ; and see Osborne v. Fallows, 1 R. & M. 743. 
 
 (i) Bromley v. Holland, 7 Ves. 3, p. 11, 12 ; and see Butler v. Prendergast, 2 B. 
 P. C. 170. 
 
 (k) Mitf. Eq. PI. 174, 4 Ed. 
 
 (/) 2 Hare, 530 ; and see Holland v. Baker, 3 Hare, 68 ; Thomas v. Dunning, 5 
 De G. & Sm. 618.
 
 PLEADING AND PRACTICE. 659 
 
 interested under the trust, if the absolute disposition of the property was 
 vested in the trustees ; but if the trustees had no such power of disposi- 
 tion, as in the case of trustees to convey to certain uses, the persons 
 claiming the benefit of the trust must also be parties. Persons having 
 specific charges on the trust property in many cases were also necessary 
 parties, but this would not extend to a general trust for creditors or others 
 whose demands were not distinctly specified in the creation of the trust, 
 as their number, as well as the difficulty of ascertaining who might answer 
 a general description, might greatly embarrass a prior claim against a trust 
 property. (jw") But it is apprehended that an absolute power of disposition 
 in the trustees was not suificient to dispense with the cestms que trust, 
 and that in all cases persons having specific charges must have been 
 parties, and that even creditors must not have been omitted as parties 
 altogether, but must have been represented by a few. Assignees of 
 bankrupts and insolvents, however, although quasi trustees, were com- 
 *petent to sue or sustain a suit without the presence of the pg^^-i 
 creditors. 
 
 In suits for the specific performance of a contract, or to have it can- 
 celled, upon any ground, the general rule is that the parties to the con- 
 tract are the only parties to the suit, and therefore if trustees enter into 
 a contract, not as the agents of their cestms que trust but as principals 
 (though the property of the cestuis que trust is in fact concerned,) they 
 may sustain a suit either as plaintifis or defendants without the presence 
 of the cestuis que trust. And not only is it unnecessary, but in many 
 cases would be highly improper, to make the cestuis que trust parties. (?i) 
 But where persons sustaining a fiduciary character enter into a contract 
 not as priyicipals, but on behalf and as the agents of other parties, those 
 other parties as the principals and not their agents are the proper per- 
 sons to sue.(o) 
 
 In marriage articles the husband and wife and their issue are all 
 purchasers for valuable consideration, and parties to the contract, and 
 therefore if any agreement had been made in articles with trustees, they 
 alone could not have filed a bill for specific performance without bring- 
 ing the cestuis que trust before the court, for the latter being also in 
 fact parties to the contract, if the bill of the trustees were dismissed, 
 might afterwards file themselves another bill against the defendant for 
 the like purpose. (p) 
 
 Where several persons have united in constituting another their 
 representative in a iTiatter for all purposes, there it seems such representa- 
 tive may sue or be sued in the absence of the cestui que trust.^q) But 
 the intention to constitute such a representative must clearly appear. 
 For trustees are not themselves owners of the property ; they are in a 
 
 (»«) Mitf. Eq. PI. 176, 4 Ed. 
 
 (n) Wood V. White, 4 M. & C. 460 ; Keon v. Magawlj, 1 Dru. & War. 400 ; 
 Tasker v. Small, 3 M. & C. 63 ; Humphreys v. Hollis, Jac. 73 ; Wakeman v. 
 Duchess of Rutland, 3 Ves. 233, 504. 
 
 (o) Doughis V. Horsfall, 2 S. & S. 184: Hook v. Kinnear, 3 Sw. 417, note ; 
 Small V. Atwood, Younge, 457. ' (p) Kirk v. Clark, Pr. Ch. 275. 
 
 (g) Vernon V. Blackerly, 2 Atk. 145 ; Bifield v. Taylor, 1 Moll. 193 ; S. C. Beat. 91.
 
 6G0 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 sense agents for the owners in executing the trusts, but they are not 
 constituted agents for the purpose of defending the owners against the 
 adverse claims of third parties. (r) 
 
 *II. Where the suit is between the parties interested in the 
 L ^ "^J trust inter se, the rule (where no enactment or order of the court 
 dispenses with it) equally prevails that all the trustees and all the cestuis 
 que trust must be before the court. 
 
 1. As to trustees. In suits by cestuis que trust, praying relief against 
 their trustees, it is necessary as a general rule to make all the co-trustees 
 parties,(s) on the ground that as eacJi co-trustee was liable to the cestuis 
 que trust, a multiplicity of suits for the same matter might be avoided, 
 and that the accounts might not be taken twice over; and also that the 
 court may, if possible, do justice to one defendant by a decree over against 
 a co-defendant,(/) and it is the plaintiff's duty so to frame his suit that 
 complete justice may be done without throwing it on the defendant to 
 file a cross bill.(M) But it is to be remembered that a decree between 
 co-defendants must always be founded on the proofs in the cause, upon 
 the issue between the plaintiif and the co-defendants, for though one 
 defendant may read against a co-defendant the proofs by the plaintiff as 
 having been examined against all the defendants, he cannot read the 
 answer of a co-defendant.(v) 
 
 It commonly happens that, in a suit by a cestui que trust for relief 
 against the trustees for a breach of trust, the merits of the case as between 
 the co-defendants are not suflBciently elicited to authorize the court to 
 adjust the equities between them, but they are left to institute a future 
 suit inter se for the purpose of obtaining a contribution, or otherwise 
 working out the relief to which they are entitled. They must neverthe- 
 less have been all made parties to the original suit, for although the court 
 r*Sin ^^"^'^ make no decree between them, it would proceed as far *as 
 L -i it could by declaring the joint liability, and settling the amount 
 of it by accounts taken in the presence of all ; and then in a future suit 
 instituted for contribution or other relief, the court might make its decree 
 upon the basis of the amount so ascertained. (it?) 
 
 If co-trustees commit a breach of trust and a third party reaps the 
 benefit, he must also, as a quasi-trustee, be made a defendant, since he 
 is liable to be sued by the cestui que trust, and the equities between him- 
 self and the co-trustees ought to be settled so far as is practicable. (a;) 
 
 {r) Holland v. Baker, 3 Hare, 72. 
 
 (s) Munch V. Cockerell, 8 Sim. 219; Perry v. Knott, 4 Beav. 1Y9 ; and see In 
 Re Chertsey Market, 6 Price, 278 ; Attorney-General v. Newbury Corporation, C. 
 P. Cooper's Rep. 1837-38, 77 ; Wilson v. Broughton, cited ib. 78 ; but see Walker 
 V. Symonds, 3 Sw. 75; Tarleton y. Hornbv, 1 Y. & C. 336; Humberstone v. 
 Chace, 2 Y. & C. 213 ; Attorney-General v. Wilson, Cr. & Ph. 28. 
 
 (t) See Jones v. Jones, 3 Atk. 112 ; Walker v. Preswick, 2 Yes. 622 ; Latouche 
 V. Dunsany, 1 Sch. & Lef. 137, 2 Sch. & Lef. 600 ; Farquharson v. Seton, 5 Russ. 
 45; Conry v. Caulfield, 2 B. & B. 255. 
 
 (m) See Jones v. Jones, 3 Atk. 112 ; Shipton v. Rawlins, 4 Hare, 623, 624. 
 
 [v) Eccleston v. Skelmersdale, 1 Beav. 396 ; and see Cottingham v. Shrews- 
 bury, 3 Hare, 627 ; Lennard v. Curzon, 1 De Gex & Sm. 350. 
 
 (^o) See Perry v. Knott, 4 Beav. 180. 
 
 {x) Burt V. Dennet, 2 B. C. C. 225 ; Perry v. Knott, 4 Beav. 179 ; 5 Beav. 297 ; 
 Consett V. Bell, 1 Y. & C. Ch. Ca. 569. 
 
 I
 
 PLEADING AND PRACTICE. 661 
 
 If a trustee transfer a fund improperly to a stranger without considera- 
 tion and without notice, and the stranger transfer it over either for no 
 consideration or for a valuable consideration not paid to himself, the 
 intermediate assignee need not be made a defendant, for not having had 
 any notice of the trust he cannot be sued personally on the ground of 
 liability, and not having derived any benefit from it there is no property 
 in his hands to be specially attachedly) 
 
 Of course, wherever the trust estate passes to ?i purchaser for valuahle 
 consideration ivitliout notice, it is unnecessary to make such purchaser a 
 party. 
 
 If a person invested with a fiduciary character be guilty, not of a mere 
 breach of trust or non-performance of a civil obligation, but of a tort or 
 delictum, (2;) that is, a fraudulent(a) or wrongful(6) act, the remedy might 
 always have been pursued against that person only, without making those 
 who confederated with him also parties. (c) "In cases of this kind," 
 observed Lord Cottenham," where the liability arises from the wrongful 
 act of the parties, each is liable for all the ^consequences, and r^oi'j-^ 
 there is no contribution between them, and each case is distinct, L J 
 depending upon the evidence against each party. It is therefore not 
 necessary to make all parties, who may more or less have joined in the 
 act complained of, nor would any one derive any advantage from their 
 being all made defendants, because as the decree would be general against 
 all found to be guilty of the charge, it might be executed against any of 
 them. "((A The casesto which this doctrine has been applied, have been 
 where corporators deserting their duty have made a fraudulent alienation 
 of the corporate property, or certain members of a company have been 
 the means of inveigling strangers by fraudulent misrepresentations. 
 
 It is not necessary to bring before the court the representatives of a 
 trustee who, as the bill is fi-amed, had no concern with the matters in 
 question in the suit.fe) In some cases the plaintiff has been allowed to 
 proceed in the absence of the representative of a co-trustee, by waiving 
 all relief which could not be granted in the absence of such representa- 
 tive.(/) 
 
 A person need not be made a party who has merely been named a 
 trustee but has disclaimed. (^) 
 
 And the suit may proceed so far as it can in the absence of a trustee 
 who is out of the jurisdiction, ^/i) or cannot be compelled by the utmost 
 
 {y) Harrison v. Prjse, Barn. 324; Knye v. Moore, 1 S. &. S. 61. 
 
 [z) See Lingard v. Bromley, 1 V. & B. 117. 
 
 (a) See Seddon v. Connell, 10 Sim. 86. 
 
 {h) See Attorney-General v. Wilson, 1 Cr. & Ph. 28. 
 
 (c) Attorney-General v. Wilson, 1 Cr. & Ph. 1 ; Seddon v. Connell, 10 Sim. 58, 
 see p. 86; Waldburn v. Ingilby, 1 M. & K. 77 ; and see Charity Corporation v. 
 Sutton, 2 Atk. 406 ; Attorney-General v. Brown, 1 Sw. 265. 
 
 {d) Attorney-General v. Wilson, 1 Cr. & Ph. 28. 
 
 (e) Glass v. Oxenham, 2 Atk. 121 ; Routh v. Kinder, 3 Sw. 144, note; Slater v. 
 Wheeler, 9 Sim. 156 ; Beattie v. Johnstone, 8 Hare, 169. 
 
 {/) Selyard v. Harris, 1 Eq. Ca. Ata. 74 ; Moon v. Blake, 1 Moll. 284. 
 
 (g) W^ilkinson v. Parry, 4 Russ. 274; Richardson v. Hulbert, 1 Anst. 65 ; Creed 
 T. Creed, 2 Hog. 215. 
 
 (/«) See Morrill v. Lawson, 2 Eq. Ca. Ab. 167 ; AValley v. Whalley, 1 Vern. 487. 
 Cowstad V. Cely, Pr. Ch. 83.
 
 062 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 process against him to appear to the bill ;{i) or if it be proved to the 
 court that diligent search and inquiry has been made after him to serve 
 him with process, and that he cannot be found. (^) 
 
 Where a trustee has died insolvent, it is not necessary in a suit that 
 under other circumstances would cast a liability upon the estate of the 
 ^ trustee, as for having joined in a breach of *trust, to bring his per- 
 
 [*848] g^^^j representative before the court.(?) But a trustee, if other- 
 wise a necessary party, cannot be dispensed with as a party during his 
 lifetime, on the ground that he is in insolvent circumstances, for the 
 embarrassment may be only temporary, and he may eventually be able 
 to discharge the debt.(m) 
 
 In suits between parties for the adjudication of their rights to an estate, 
 it is not necessary to have the presence of a mere trustee of an outstand- 
 ing term.(??) 
 
 An intermediate trustee of a mere equity need not, except under 
 special circumstances,(o) be made a party. Thus A., the cestuique trust 
 of a fund of which the legal estate is in B., assigns his interest to C. in 
 trust simply for D. ; here D. may sue B. for the fund without making C. 
 a party. (p) 
 
 A trustee who has assigned his interest over to a new trustee^ need 
 not be a party. Thus where A. was trustee for B. for securing an an- 
 nuity, and B. assigned the annuity to C, and A. assigned the term to 
 D., it was of course not necesssary in a suit to set aside the annuity, to 
 make A. a party. (5-) 
 
 Where a person mortgaged his reversionary interest in stock, and then 
 assigned it to trustees by a voluntary instrument upon trust for payment 
 of his debts, it was held the trustees were not necessary parties to a fore- 
 closure suit, the deed being defeasible at any moment, and the trustees 
 the mere agents of the mortgagor. (r) 
 
 It has been said that sometimes bills have been brought by a cestui 
 que trust without making the trustee a party, upon the principle of the 
 cestui que trust undertaking for the trustee, who has no personal interest, 
 that he should conform to what decree should be raade.(s) But this 
 must be regarded as an anomaly. 
 
 r*8iQn '^^^ ^ ^^^^ ^^ ^^^^ against several trustees but does not seek to 
 L J charge them personally, on the death of one, the trusteeship sur- 
 vives, and the representatives of the deceased trustee need not be brought 
 
 (?) Butler V. Prendergast, 2 B. P. C. 170. 
 
 (k) See s. 49 of the trusteee act, 1840, re-enacting s. 24 of 11 G. 4, and 1 W. 4, c. 
 60, s. 24; and see Moore v. Vinten, 12 Sim. 161 ; Heath v. Percival, 2 Eq. Ca. Ab. 
 167 ; S. C. 1 P. W. 683 ; Waller v. Wlialley, 1 Vern. 487. 
 
 (I) Seddon v. Connell, 10 Sim. 85 ; Madox v. Jackson, 3 Atk. 406; but see 
 Haywood v. Ovey, 6 Mad. 113. 
 
 (m) See Thorpe v. Jackson, 2 Y. & C. 560, 563 ; Haywood v. Ovey, 6 Mad. 113. 
 
 («) Brookes v. Burt, 1 Beav. 106. (0) Scully v. Scully, 3 Ir.'Eq. Rep. 494. 
 
 Ip) Head v. Teynham, 1 Cox, 57; Munch v. Cockerell, 8 Sim. 219 ; and see 
 Malone v. Geraghty, 2 Conn. & Laws. 249 ; Whittle v. Halliday, 2 Conn. & Laws. 
 430 ; Horrocks v. Ledsam, 2 Coll. 208. 
 
 (q) Bromley v. Holland, 7 Ves. 11 : and see Knye v. Moore, 1 S. & S. 65 ; Reed 
 V. O'Brien, 7 Beav. 32. 
 
 (r) Slade V. Rigg, 3 Hare. 35. (s) Kirk v. Clark, Pr. Ch. 275.
 
 PLEADING AND PRACTICE. 663 
 
 before the court ;(/) and the representative of a deceased trustee who was 
 not a party to the breach of trust complained of, and on whose death the 
 trust fund devolved on the surviving trustee, need not be made a defend- 
 ant to a suit for recovering amends for the breach of trust against the 
 surviving trustee. (m) 
 
 If a person entitled to a share of a fund standing in the names of 
 trustees make a new settlement and appoint new trustees, who commit a 
 breach of trust in which the old trustees are also implicated, the cestuis 
 que trust under the last settlement may have relief, in respect of the 
 breach of trust, against the new trustees without making the old trustees 
 parties, (y) 
 
 2. It was necessary until recently to have all the cestuis que trust 
 before the court, in order that the rights of all parties interested might 
 be ascertained, so that future litigation might be excluded, and that the 
 trustee might not be afterwards harassed for having obeyed the order of 
 the court.(?c) But the general rule was and is subject to numerous 
 exceptions. 
 
 If a cestui que trust was abroad, the court might proceed without him 
 if he was merely a passive party, and the disposition of the property was 
 in the power of those before the eourt.(a-) But if the primary object of 
 the suit be to affect the right of the absent cestui que trust, as in a bill 
 for equitable execution against his estate, the court will not make a 
 decree behind his back, even though the legal interest may be vested in 
 some of the defendants. (^) In one case liberty was reserved to make 
 alterations in the decree apparently that the absent "^cestui que |-:i:Q-n-i 
 trust might, if so advised, apply by petition to have the decree L -» 
 amended. fz) In another case where one of the cestuis que trust was 
 abroad and could not be found, the court, though the right of that cestui 
 que trust was involved, directed a conveyance of the estate, but without 
 prejudice to any right or interest which might be claimed by that cestui 
 que trust. (^a\ 
 
 A suit might proceed in the absence of a cestui que trust if process was 
 made against him to a sequestration, and he could not be compelled to 
 appear, (i) 
 
 If a cestui que trust assign his interest over, the original cestui que 
 trust need not be a party to a suit instituted by the assignee. (c) 
 
 A cestui que tr^isf, entitled to a distinct aliquot share of an ascertained 
 fund, might file a bill against the trustee of the fund for the transfer of 
 
 (t) London Gas Light Company v. Spottiswoode, 14 Beav. 271. 
 
 (it) Simes v. Eyre, 6 Hare, 137. (c) M'Gachen v. Dew, 15 Beav. 84. 
 
 (id) Pyncent v."Pyncent, 3 Atk. 571 ; Adams v. St. Leger, 1 B. & B. 181 ; Court 
 V. Jeffry, 1 S. & S. 105; Manning v. Thesiger, ib. 107; Josling v. Karr, 3 Beav. 
 495; Morril v. Lawson, 2 Eq. Ca. Ab. 1G7; Pliillipson v. Gatty, 6 Hare, 26; 
 Hanne v. Stevens, 1 Vern. 110. 
 
 (x) Rogers v. Linton, Bunb. 200 ; and see Willats v. Busby, 5 Beav. 193. 
 
 (y) Browne v. Blount, 2 R. & M. 83 ; see Holmes v. Bell, 2 Beav. 298 ; Fell v. 
 Brown, 2 B. C. C. 276 ; Willats v. Busby, 5 Beav. 193. 
 
 (2) Attorney-General v. Balliol College, 9 Mod. 407 ; see 409. 
 
 (a) Willats v. Busby, 5 Beav. 193. 
 
 (b) Downs V. Thomas, 7 Ves. 206 ; Phillips v. Duke of Buckingham, 1 Vern. 228. 
 
 (c) Goodson v. Ellisson, 3 Russ. 583.
 
 604 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 that share without making the cestuis que trust of the residue of the fund 
 parties. ((f) But where a plaintiff was entitled to an aliquot share not in 
 an ascertained and existing fund, but in one for which the defendant was 
 liable to account, he must have made the persons entitled to the other 
 aliquot shares parties. (e) And it has been observed that suits for aliquot 
 shares, without making the other persons interested parties, are not to be 
 encouraged as being inconvenient.(/) 
 
 III. Certain exceptional cases depending upon considerations equally 
 applicable to suits between the trust estate on the one hand, and strangers 
 on the other, and to suits between the trustees and cestuis que trust, inter 
 se, remain to be considered. 
 
 Where a breach of trust has been committed, it is competent to one or 
 more of the trustees at any time to institute a suit against the person 
 liable to make good the fund without making *the cestuis que 
 L J trust parties. It may be objected, that, as a suit by the cestuis 
 que trust would also clearly lie in such a case, the defendant would thus 
 be liable to be twice vexed for the same matter. However, the rule from 
 its great convenience has been repeatedly recognised, and may be con- 
 sidered established. ((/) 
 
 Where the cestuis que trust are so numerous a body that the suit could 
 not possibly, or at all events conveniently, proceed, if all were required 
 to be parties, the court will, in accordance with its ordinary practice 
 where numerous parties have a common interest, permit some of the 
 cestuis que trust to sue on behalf of the rest and as their representa- 
 tives. (A) 
 
 So where cestuis que trust are exceedingly numerous, a small number 
 may be made defendants as representatives of the rest for the purpose of 
 binding their rights. (?') But in such cases if all the cestuis que trust be 
 not parties, the trustees must be so.(Z:) In many cases the plaintiff can- 
 not have complete relief in the absence of the general body, as where 
 they ought all to join in a conveyance ; but even here if the plaintiff pro- 
 ceed against a few as defendants, the court will go as far as it can by 
 binding the rights of all in equity.^/') 
 
 (d) Smith V. Snow, 3 Mad. 10; Hutchinson T. Townsend, 2 Keen. 675 ; Hugh^ 
 son V. Cookson, 3 Y. & C. 578; Perry v. Knott, 5 Beav. 293. 
 
 (e) Lenaghan v. Smith, 2 Phil. 301 ; Alexander v. Mullins, 2 R. & M. 568. 
 (/) Hutchinson v. Townsend, 2 Keen, 678, per Lord Langdale. 
 
 iff) Franco v. Franco, 3 Ves. 75 ; May v. Selby, 1 Y. & C. Ch. Ca. 235 ; Bridget 
 V. Hames, 1 Coll. 72 ; Noble v. Meymott, 14 Beav. 471 ; Peake v. Ledger, 4 De 
 Gex & Sm. 137 ; Groom v. Booth, 1 Drewry, 567 ; Horsley v. Fawcett, 11 Beav. 
 565 ; Chancellor v. Morecraft, ib. 262 ; Hughes v. Key, 20 Beav. 395 ; Baynard v. 
 Woolley, ib. 583. 
 
 (h) Chancey v. May, Pr. Ch. 592 ; Manning v. Thesiger, 1 S. & S. 106 ; Weld 
 V. Bonham, 2 S. & S.'oi ; Harvey v. Harvey, 4 Beav. 215 ; and see Lloyd v. Loar- 
 iiig, 6 Ves. 773 ; Cockburn v. Thompson, 16 Yes. 321 ; Hichens v. Congreve, 4 
 Russ. 562 ; Preston v. Grand Collier Dock Company, 11 Sim. 327; Bromley v. 
 Smith, 1 Sim. 8 ; Walworth v. Holt, 4 M. & C. 619 ; Attorney-General v. Heelis, 2 
 S. & S. 67 ; Taylor v. Salmon, 4 M. & C. 134; Williams v. Salmond, 2 K. & J. 463. 
 
 {() Adair v. New River Company, 11 Ves. 429, see pp. 443, 444, 445 ; City of 
 London v. Richmond, 2 Vern. 421 ; Meuxv. Maltby, 2 Sw. 277 ; Bunnett v. Foster, 
 7 Beav. 540 ; Harvey v. Harvey, 4 Beav. 215 ; 5 Beav. 134 ; Milbank v. Collier, 1 
 Coll. 237. (k) Holland v. Baker, 3 Hare, 68. 
 
 (1) Meux V. Maltby, 2 Sw. 285 ; and see Powell v. Wright, 7 Beav. 449, 450.
 
 PLEADING AND PRACTICE. 665 
 
 In order to enable some to sue on behalf of themselves and others, it 
 must appear that the relief sought is in its nature beneficial to all those 
 whom the plaintiff undertakes to *re])rcsent.(m) And the frame r:}:(i.f^,r>-] 
 of the suit must not involve any matter of contest between the L J 
 plaintiff and the parties represented by him inter se.(^n^ 
 
 What number was large enough to induce the court to dispense with 
 the rule requiring all to be made parties has never been exactly defined. 
 It was held in one case that where the cesfuis que trust were twenty, they 
 ought all to be brought before the court. (oj But in two other cases 
 where the original cestuis que trust were twenty-seven and twenty-six in 
 number respectively, and bills were filed 20 and 17 years respectively after 
 the dates of the respective deeds of trust praying performance of the trusts, 
 it was held that some of the cestuis que trust could maintain the suits 
 on behalf of themselves and all others. (p) 
 
 IV. The practice of the court has now been considerably varied by 
 certain special enactments, and by the general orders of the court which 
 we proceed to consider. 
 
 By the 80th order of 26th August, 1841, it was provided that in all 
 suits concerning real estate, which is vested in trustees by devise who 
 were competent to sell and give discharges, such trustees should repre- 
 sent the persons beneficially interested in the real estate, in the same 
 manner as executors and administrators represent the persons beneficially 
 interested in the personal estate. 
 
 Upon the construction of this clause it was held that devisees in trust 
 for sale, subject to a charge of debts, being also executors, though with- 
 out an express power of signing receipts, were within the meaning of 
 the order.(5) But that it '''did not apply where the trustees had r*ucQ-i 
 not an absolute power of sale but only with the consent of another L ' -I 
 person, (?•) or where the trust for sale was not immediate, but to be exer- 
 cised on the death of a tenant for life,(s) or where the equitable estate 
 only, and not the legal estate, was vested in the trustees by the will.(^) 
 Where the trustees took the estate in the manner required by the order, 
 they sufficiently represented the interests of the cestuis que trust in 
 adverse suits between strangers on the one hand, and the privies to the 
 trust on the other.(?/) But where the suit was one for the adjustment 
 of the rights of the cestuis que trust, inter se, as a suit for the general 
 administration of a testator's estate, the order did not apply j(r) though 
 
 (m) Jones v. Del Rio, cited Attorney-General v. Heelis, 2 S. &. S. 16 ; S. C. T. 
 & R. 297 ; Gray v. Chaplin, 2 S. & S. 26T ; see 272 ; Bainbrigge v. Burton, 2 Beav. 
 539 ; Long v. Yonge, 2 Sim. 385 ; Richardson v. Larpent, 2 Y. & C. Ch. Ca. 507. 
 
 (m) Evans v. Stokes. 1 Keen, 24 ; Bainbrigge v. Burton, 2 Beav. 539 ; Richard- 
 son v. Larpent, 2 Y. & C. Ch. Ca. 507 ; Newton v. Earl of Egmont, 4 Sim. 574 ; 5 
 Sim. 130; see 137. 
 
 (o) Harrison v. Stewardson, 2 Hare, 533. The bill in this ease was by a judg- 
 ment creditor claiming priority over the cestuis que trust and praying a sale. 
 
 (p) Smart v. Bradstoclv, 7 Beav. 500 ; Bateman v. Margerison, 6 Hare, 496. 
 
 {q) Savory v. Barber, 4 Hare, 125 ; Ogden v. Lowry, 25 L. J. N. S. (Ch.) 198. 
 
 (r) Lloyd v. Smith, 13 Sim. 457. (s) Cox v. Barnard, 5 Hare, 25:!. 
 
 (<) Turner v. Hind, 12 Sim. 414. 
 
 (m) Osborne v. Foreman, 2 Hare, G59 ; Ward v. Bassett, 5 Hare, 179 ; and see 
 Miller v. Huddlestone, 13 Sim. 468 ; Wilton v. Jones, 2 Y. & C. Ch. Ca. 244. 
 
 {v) Jones V. How, 7 Hare, 270 ; Miller v. Huddlestone, 13 Sim. 467. 
 
 April, 1858.— 43
 
 QQQ LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 legatees whose legacies were charged merely on real estate devised so as 
 tofall within the order were not necessary parties.(?f) 
 
 The 32nd order of 26th August, 1841, declares that a plaintiff having 
 a joint and several demand against several persons, either as principals 
 or sureties, may sue without bringing before the court all the persons 
 liable, but may proceed against one or more of the persons severally 
 liable. 
 
 This order has been construed to embrace within it, and indeed was 
 introduced expressly to meet the case of co-trustees concurring in a breach 
 of trust,(:c)and it applies to individual members of a public body of trus- 
 tees as well as to private trustees. (y) But although it may not be neces- 
 sary to have before the court all the co-trustees who joined in the breach 
 of trust, the order does not dispense with the necessity of making the 
 representatives of a person who was the principal in the breach of trust, 
 ^ and reaped the benefit of it, parties to *the suit.(2) And a cestui 
 
 L -I que trust under a will cannot file a bill against a surviving execu- 
 tor for a general administration of the estate, including relief in respect 
 of a breach of trust committed by the defendant and a deceased execu- 
 tor, without making the personal representative of the deceased co- 
 executor a party. (a) And where a bill is originally filed on the basis of 
 making all the co-trustees liable, the plaintiff cannot afterwards, upon 
 one of the trustees dying,(&) or becoming bankrupt, (c) waive relief against 
 the estate of that trustee, and go on against the other trustees only. 
 And in one case where the bill sought to make several trustees liable, 
 and the plaintiff by examining some of them as witnessses, had precluded 
 himself from obtaining a decree against those so examined, the court 
 would not under the order make a decree against the rest. ((A 
 
 By 15 & 16 Vict. c. 86, s. 42, rule 1, any residuary legatee, or next 
 of kin, may have a decree for the administration of the personal estate, 
 without making the other residuary legatees or next of kin parties. By 
 rule 2, any person interested in a legacy charged upon or to be paid out 
 of the proceeds of real estate, may have a decree for administration of 
 the estate without serving the other persons interested. By rule 3, any 
 residuary devisee or heir may have the like decree without serving any 
 co-residuary devisee or co-heir. By rule 4, any one cestui que trust may 
 have a decree for administration of the trust without serving the other 
 cestuis que trust.{e) By rule 5, in suits for protection of property pend- 
 ing litigation, and in matters of waste, one person may sue on behalf 
 of all others having the same interest. By rule 6, any executor, adminis- 
 
 ((<;) Osborne v. Foreman, 2 Hare, 656 ; Ward v. Bassett, 5 Hare, 179. 
 
 (x) See Kellaway v. Johnson, 5 Beav. 319 ; Attorney-General v. Corporation of 
 Leicester, 7 Beav. 176 ; Strong v. Strong, 18 Beav. 408 ; Norris v. Wright, 14 
 Beav. 310 ; Perry v. Knott, 4 Beav. 179 ; 5 Beav. 293. 
 
 {y) Attorney-General v. Pearson, 2 Coll. 581. 
 
 (2) Perry v. Knott, 4 Beav. 179 ; 5 Beav. 297 ; Shipton v. Rawlins, 4 Hare, 619 ; 
 Jesse V. Bennett, 2 Jur. N. S. 964, 6 De Gex, Mac. & Gor. 609. 
 
 (a) Biggs v. Penn, 4 Hare, 469 ; Hall v. Austin, 2 Coll. 571. 
 
 {h) London Gas Light Company v. Spottiswoode, 14 Beav. 264. 
 
 (c) Fussell V. Elwin, 7 Hare, 29". 
 
 [d) Attorney-General v. Dew, 3 De Gex & Sm. 488. 
 («) Jones V. James. 9 Hare, Append. Ixxx.
 
 PLEADING AND PRACTICE. 667 
 
 trator, or trustee may obtain a decree for administration against any one 
 legatee, next of kin, or cestui que trust. But by rule 7, the court in the 
 above cases may require any other persons *to be made parties. r*gr g-, 
 xind by rule 8, in all the foregoing cases, the decree when made L J 
 must be served on all the persons who, according to the practice of the court 
 at that time, and independently of the act, would be necessary parties. 
 
 By rule 9, in all suits concerning real or personal estate vested in 
 trustees under a will, settlement, or otherwise, such trustees shall repre- 
 sent their cestuis que trust in the same manner as executors or adminis- 
 trators represent the persons beneficially interested in the personal 
 estate. But the court may direct the cestuis que trust to be made par- 
 ties. 
 
 It is to be observed upon these rules, that although in a large propor- 
 tion of cases the old difficulties as to parties are removed down to the 
 hearing, yet rule 8 still renders a reference to the old practice necessary, 
 though at a difierent stage of the cause. 
 
 Rule 9 is much more comprehensive than the 30th order of 26th 
 August, 1841, as it comprises trustees appointed not only by a will but 
 by any instrument, and is not confined to trustees for sale merely, but 
 extends to all trustees in whom the estate is vested. It has been held 
 under this rule that trustees can sufficiently represent their cestuis que 
 trust even in redemption(/) and foreclosure suits.(.9') But it is discre- 
 tionary with the court whetlaer the cestuis que triist shall or not be made 
 parties. Where the trustees fill the double character of executors and 
 devisees in trust of the mortgagor, and thus may be supposed to have 
 funds applicable for the purpose of redeeming, the court is disposed to 
 dispense with the presence of the cestuis que trust ;(/i) but where the 
 trustees are trustees of a settlement merely(t) or where the court for other 
 reasons views the trustees as inadequate representatives, it refuses to 
 adjudicate in the absence of the cestuis que trust. (^k^ And where a bill 
 was filed by a settlor to set aside a settlement as having been fraudulently 
 obtained by the trustees, it was *held that the trustees (one of r*ocg-i 
 whom was entitled beneficially under the settlement to one-twelfth L J 
 of the trust fund, subject to a life interest in the plaintiif,) could not be 
 treated as sufficiently representing the cestuis que trust for the purposes 
 of the suit.(^) 
 
 By the 47th section of the same act any creditor or person interested 
 under the will may apply at chambers for an order of administration 
 where the whole real estate is by devise vested in the trustees, who are 
 empowered to sell, and authorized to sign receipts for the rents and profits 
 and produce of sale. (m) 
 
 (/) Stansfield v. Hobson, 16 Beav. 189. 
 
 (g) Sale v. Kitson, 3 De Gex, Mac. & Gor. 119; Hanman v. Riley, 9 Hare, 
 Append, xl. 
 
 (/<) Hanman v. Riley, 9 Hare, Append, xl. 
 
 (i) Goldsmid v. Stonehewer, 9 Hare, Append, xxxviii. 
 
 (k) Cropper v. Mellersh, 1 Jur. N. S. 299 ; Chaffers v. Baker, 5 Weekly Rep. 32C. 
 
 (Z) Reed v. Prest, 1 K. &. J. 183. 
 
 (m) See the decisions on the 30th order of August, 1841, the language of which 
 is similar, p. 852, supra. Rump v. Graenhill, 20 Beav. 512; Ogden v. Lowry, 25 
 L. J. N. S. (Ch.) 198.
 
 (368 LEW IN ox THE LAW OF TRUSTS, ETC. 
 
 By the 51st section the court may adjudicate upon questions in the 
 presence of some only of the parties interested, (n) and as to a portion 
 only of the trust estate,(o) and without taking the accounts. 
 
 SECTION II. 
 
 OF THE ORDER AND MANNER IN WHICH THE TRUSTEES AND CESTUIS 
 QUE TRUST OUGHT TO APPEAR UPON THE RECORD, AS WHETHER 
 JOINTLY OR SEVERALLY AS PLAINTIFFS OR DEFENDANTS. 
 
 In a contest between the trust on the one hand, and a stranger on tlte 
 other, the trustees and ccstuis que trust represent but one interest, and 
 costs must not be multiplied unnecessarily by the severance of them in 
 the suit. 
 
 It was said by Sir Anthony Hart, that a cestui que trust about to file 
 his bill, ought to apply to his trustee to allow his name to be used as a 
 co-plaintiff. This (he said) the trustee is bound to comply with upon 
 being indemnified against costs. Should the trustee refuse, he would be 
 departing from his duty, and in such a ease would not be entitled to his 
 costs when made defendant, in consequence of his refusal. But where 
 no application is made to the trustee to permit his name to be used as 
 r*8f;7n co-plaintiff, he is in no default, and the cestui que trust would *be 
 L -I bound to pay the costs of the trustee for his unreasonable negli- 
 gence in not having required the trustee to be co-plaintiff. (p) And 
 where there is a just ground of suit, it is the duty of a trustee to allow 
 himself to be made a co-plaintiff. (5) 
 
 Upon the same principle, where a trustee and cestui que trust are made 
 defendants in the same right, as they have an identity of interest they 
 ought not to split the defence, and file separate answers ;(r) not that a 
 trustee and his cestui que trust can be compelled to join in their de- 
 fence 5(.s) but if they do not they will be mulcted in costs, as only one set 
 of costs will be decreed against the plaintiff. (^) 
 
 In suits between trustees and cestuis que trust, inter se, it is equally 
 the rule that all the cestuis que trust in the same interest should sue as 
 co-plaintiffs •,h(\ or if the bill is by a trustee that he should join his co- 
 trustees with him, unless there be some special circumstance demanding 
 a severance. 
 
 So, as a general rule, in suits of every description, joint trustees should 
 make a joint defence, and if they put in separate answers, one set of costs 
 only will be allowed, which, if they be equally in fault, will be appor- 
 
 («) See Doodj v. Higgins, 9 Hare, Append, xxxii. 
 
 (0) Prentice v. Prentice, 10 Hare, Append, xxii. 
 
 (p) Reade V. Sparks, 1 Moll. 8, II ; but see Browne v. Lockhart, 10 Sim. 426. 
 
 (q) Hughes v. Key, 20 Beav. 395. 
 
 (r) Reade V. Sparks. 1 Moll. 10, 12, per Sir. A. Hart ; 'Woods v. Woods, 5 Hare, 
 229 ; Farr v. Sheriffe, 4 Hare, 528. 
 
 h) Van Sandau v. Moore, 1 Russ. 441 ; reversing S. C. 2 S. & S. 509. 
 
 (t) Cuddy V. WaldroD, I Moll. 14; Homan v. Hague, 1 Moll. 14; Galwav v. 
 Butler, 1 Moll. 13. 
 
 (m) See Hosking v. Nicholls, 1 Y. & C. Ch. Ca. 478.
 
 PLEADING AND PRACTICE. 669 
 
 tioned amongst them.(v) But if there be two trustees, and one be willing 
 to join, and the other refuse, who afterwards puts in an answer, and shows 
 no reason for his refusal, the single costs allowed will be given exclusively 
 to the trustee who expressed a willingness to join.(i^) And where two 
 trustees severed in their defence one of whom was charged with miscon- 
 duct, the court held that the innocent trustee was justified in severing, 
 and while allowing one set of costs gave the whole of them to him. (a;) 
 However, *where the court sees there is a substantial reason for ^,,.0^0-, 
 it, as where one trustee has a personal interest which conflicts L J 
 with his duty as trustee, or where one can admit facts which the other 
 believes not to be true,(.y) or where the co-trustees reside at such a dis- 
 tance from each other that a joint answer is impracticable,('z) or where 
 other special grounds exist,(a) the several trustees will be allowed to put 
 in separate answers, and each will be allowed his full costs. 
 
 K feme covert entitled to her separate use cannot join her husband as 
 co-plaintiff, but must sue by her next friend, making her husband a 
 defendant, who, under such circumstances, will be entitled to his costs •,[h\ 
 and if she be made a defendant in respect of such an interest, she should 
 obtain an order to defend separately. (c) But the mere fact of a femn 
 covert living apart from her husband, does not entitle her to appear 
 separately at the costs of a trust estate under administration, where the 
 interest which she claims is not settled to her separate use.(fZ) 
 
 SECTION III. 
 
 OF DISTRINGAS. 
 
 In the case of stock transferable in the books of the Bank of England, 
 and also in the case of the stock and shares of many other public com- 
 panies, no obligation exists on the part of the bank or public company to 
 look beyond the title of the legal holder. The modern form of legislative 
 enactment on the subject is usually to the effect that the company '< shall 
 not be *bound to see to the execution of any trust, whether ex- |.^„^„ 
 press, implied, or constructive." (e) Where, therefore, property L J 
 of this description is held upon trust, the interests of the cestui que trust 
 are peculiarly liable to be endangered by the dishonesty of the trustee ; 
 
 (y) Nicliolsou v. FalLdner, 1 Moll. 559, per Sir A. Hart ; Gaunt v. Taylor, 2 
 Beav. 347, per Lord Langdale. 
 
 (w) Young V. Scott, 1 Jones, Ir. Exch. 71 ; and see Attorney-General v. Cuming, 
 2 Y. & C. Ch. Ca. 156. 
 
 (z) Webb V. Webb, IG Sim. 55. (y) Gaunt v. Taylor, 2 Beav. 346. 
 
 (z) Aldridge v. Westhrook, 4 Beav. 212 : Dudgeon v. Gornilcy, 2 Conn. & Laws. 
 422 : Nicholson v. Falkiner, 1 Moll. 560 ;' Wiles v. Cooper, 9 Beav. 294; but see 
 Farr v. Sheriffe, 4 Hare, 528. 
 
 (a) Anon, case, cited Barry v. Woodham, 1 Y. & C. 538 ; Nicholson v. Falkiner, 
 1 Moll. 555, see 560 ; Reade v. Sparkes, 1 Moll. 10, per Sir A. Hart ; Kampfv. 
 Jones, C. P. Cooper's Rep. 1837-38, 13 ; and see Walsh v. Dillon, 1 Moll. 13. 
 
 (b) Thorby v. Yeats, 1 Y. & C. Ch. Ca. 438. 
 
 (c) See Norris v. Wright, 14 Beav. 303 ; and p. 633, supra. 
 
 (d) Garey v. Whittiugham, 5 Beav. 270; and see Barry v. Woodham. 1 Y. & C. 
 538. 
 
 (e) 8 Vict. c. 16, s. 20.
 
 G70 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 and, indeed, but for the means of protection now abo'ut to be explained, 
 would be almost entirely at his mercy. 
 
 The distrinQas was originally a process of the equity side (now abolished) 
 of the court of exchequer for compelling the appearance of a corporation 
 to a bill filed, but formerly it was a common practice, more particularly 
 in any emergency, to issue a subpoena before the bill was actually on the 
 file. When, therefore, a party sought to restrain a transfer of stock, 
 before he filed the bill against the holder of the stock and the bank (who 
 were then necessary parties,) to prevent any mischief in the interim he 
 served process immediately on the secretary of the bank to appear to the 
 bill. But as the form of disti-ingas gave no information as to the stock 
 to be restrained, the distringas was accompanied with a notice in writ- 
 ing, which specified the stock, and required the bank not to permit the 
 transfer. The efi'ect of this was, that if the holder of the stock applied 
 to the bank to make a transfer, the bank immediately forwarded a notice 
 to the party issuing the distringas, that unless he actually filed a bill, 
 and obtained and served an injunction before a certain day, they should 
 permit the transfer to be made. 
 
 The 4 Anne, c. 16, s. 22, declared that no subpoena or other process 
 for appearance should issue until after the bill was filed; and the 39 & 
 40 Gr. 3, c. 36, enable suitors to obtain an injunction against the bank, 
 without making the bank a party. However, in practice the distringas 
 still continued to be served on the bank, and the same attention was 
 paid to it in not allowing a transfer. 
 
 The convenience of the distringas was so sensibly felt, from the fre- 
 quent necessity of laying an embargo upon stock at a moment's notice, 
 that when the 5 Vict. c. 5, abolished the equity side of the exchequer, 
 r*8601 ^* ^^^ thought expedient to *transfer the process to the court of 
 ■- J chancery, and enlarge the remedy. 
 
 Accordingly, by section 4 of the act referred to, it was by way of 
 additional remedy enacted, that <' it should be lawful for the court of 
 chancery, upon the application of any party interested, by motion or 
 jjefition, in a summary way without bill fled, to restrain the Bank of 
 England or other company, whether incorporated or not, from permitting 
 the transfer of any stock in the public funds, or any stock or shares in 
 any public company, or from paying any dividend or dividends due or 
 to become due thereon ; and every order of the court upon such motion 
 or petition should specify the amount of the stock, or the particular shares 
 to be afi"ected thereby, and the name or names of the person or p>ersons, 
 body politic or corporate, in which the same should be standing." 
 
 An application to the court under this section must be founded upon an 
 affidavit verifying the special grounds upon which it proceeds.(/) And 
 when the order has been made, as it was not the intention of the legisla- 
 ture to do more than protect the stock until the party could assert his 
 right in the ordinary way, if the opposite party move to dissolve the 
 injunction, and the court sees that there has been great neglect on the 
 part of the person who obtained the order, and that any extension of 
 
 (/) Ex parte Field, 1 Y. & C. Ch. Ca. 1 ; Re Marquis of Hertford, 1 Hare, 
 
 586.
 
 I 
 
 PLEADING AND PRACTICE. (371 
 
 time would be oppressive to the party restrained, it will not as of course 
 give further time for filing the bill.(^) When a bill has been filed, and 
 an answer put in, and the defendant moves to discharge the restraining 
 order, the plaintiff may file affidavits in opposition to the answer, and is 
 not confined to the merits disclosed in the answer. ^7i) 
 
 By section 5 of the act it is thus enacted^ " In the place and stead of 
 the writ of distringas, as the same has been heretofore issued from the 
 court of exchequer, a writ of distringas in the form set out in the sche- 
 dule to the act shall be issuable from the court of chancery, and shall 
 be sealed at the subpoena *office, and the force and efi"ect of such r-;^n.?i-i 
 writ, and the practice under or relating to the same, shall be such •- -i 
 as is now in force in the said court of exchequer ; provided, nevertheless, 
 that such writ, and the practice under or relating to the same, and the 
 fees and allowances in respect thereof, shall be subject to such orders 
 and regulations as may, under the provisions of this act, or of any other 
 act now in force, or under the general authority of the court of chancery, 
 be made with reference to the proceedings and practice of the court of 
 chancery." 
 
 In the schedule to the act, the form of the writ is as follows : " Victo- 
 ria, &c., to the sherifis of London greeting. We command you that you 
 omit not, by reason of any liberty, but that you enter the same, and dis- 
 train the governor and company of the Bank of England by all their 
 lands and chattels in your bailiwick, so that they, or any of them, do not 
 intermeddle therewith until We otherwise command you ; and that you 
 answer us the issue of the said lands, so that they do appear hefore tis 
 in our High Court of Chancery on the day of , to answer a 
 
 certarin hill of comjilaint lately exhibited against them and other defen- 
 dants before us in our said court of chancery by complai- 
 nant ; and further, to do and receive what our said court shall then and 
 there order in the premises, and that you then leave there this writ. 
 Witness &c." 
 
 The act, as we have seen, empowered the court to regulate the prac- 
 tice of the distringas, and orders were issued in consequence to the 
 following effect : — 
 
 1. That any person claiming to be interested in any stock transferable 
 at the Bank of England may by his solicitor prepare a writ of distringas 
 in the form set out in the schedule to the act, and present the same for 
 sealing at the subpoena office. (i) 
 
 2. That such person must, before the writ is sealed, leave at the sub- 
 poena office an affidavit sworn by him or his solicitor in the following 
 form : — (Jc) 
 
 *" A. B." (the name of the party or parties in whose behalf r^oppn 
 the writ is sued out) " v. the Governor and Company of the Bank L "^J 
 of England." 
 
 (ff) In re Marquis of Hertford. 1 Hare, 584. See same case, 1 Phil. 203. 
 
 (h) In re Marquis of Hertford,! Phil. 203. See now 15 & 16 V. c. 86, s. 59. 
 
 (i) 1 Order of 17 Nov. 1841, 3 Beav. xxxiii. 
 
 (k) 2 Order of 17 Nov. 1841, 3 Beav. xxxiii; and Order of Dec. 10, 1841, cor- 
 recting the form of afiBdavit at the foot of the Orders of the 17 Nov. 1841, ib. 
 xxxviii.
 
 672 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 « J , of , do solemnly swear, that, according to 
 
 the best of my knowledge, information, and belief, I am" (or if the affidavit 
 
 is made by the solicitor, ''A. B. of , is) beneficially interested 
 
 in the stock hereinafter particularly described, that is to say" (here 
 specify the amount of the stock to be affected by the writ, and the name 
 or names of the person or persons, or body politic or corporate, in whose 
 name or names the same shall be standing.) 
 
 3. That such writ of distringas, and all process thereunder, may be 
 discharged by order of the court, to be obtained, as of course, by the 
 party on whose behalf the writ was issued ; and to be obtained upon the 
 application by motion or petition of any other person claiming to be 
 interested in the stock sought to be affected. And power is given to the 
 court to deal with the costs as may seem just.(?) 
 
 4. <'That the bank having been served with such writ of distringas, 
 and a notice not to permit the transfer of the stock in such notice and 
 in the said affidavit specified, or not to pay the dividends thereon, and 
 having afterwards received a request from the party or parties in whose 
 name or names such stock shall be standing, or some person on his or 
 their behalf, or representing him or them, to allow such transfer, or to pay 
 such dividends, shall not by force, or in consequence of such distringas, 
 be authorized without the order of the court to refuse to permit such 
 transfer to be made, or to withhold payment of such dividends for more 
 than eight days after the date of such request." (^ni^ 
 
 5. That the patentee of the subpoena office shall cause the affidavit to 
 be filed and registered at the office of the clerk of the affidavits. (?<) 
 
 The present course, therefore, is this. The solicitor of the party 
 P^opq-| seeking the distringas prepares a writ of distringas in *the«form 
 L -I required by the act, and the party or his solicitor swears an affi- 
 davit in the form required by the general order. The writ and affidavit 
 are then taken to the subpcena office, the former to be sealed, and the 
 latter to be left for filing. A notice in writing is then prepared that 
 the bank is not to permit the transfer of the stock or payment of the 
 dividends upon which the restraint is sought, and the distringas and 
 notice are then served on the secretary of the bank. The result is, that 
 when the holder of the stock requests a transfer of the stock or payment 
 of the dividends, the bank immediately forwards a notice to the party 
 who issued the distringas, that unless he file a bill and obtain and serve 
 an injunction within eight days from the date of such request, the trans- 
 fer or payment will be made. The party must, of course, be then upon 
 the alert to file a bill and obtain and serve the injunction before the 
 eight days have expired. 
 
 Between the remedy given by the 4th section and that given by the 
 5th section of the act, the following distinctions exist. The former applies 
 not merely to stock in the funds, but to stock and shares of public com- 
 panies, whether incorporated or not ; while the latter (whether inten- 
 tionally or not may be doubted) is, by the joint effect of the schedule to 
 the act of parliament and of the orders of the Court of Chancery before 
 
 (l) 3 Order of H Nov. ] 841, 3 Beav. xxxiv. [m) 4 Order, ib. xxxiv. 
 
 (n) 5 Order of same date, 3 Beav. xxxiv.
 
 PLEADING AND PRACTICE. 673 
 
 referred to, confined to stock transferable at the Bank of England. 
 Again, the distringas under the 5th section may be, and is in fact, fre- 
 quently obtained, not from any fear of immediate danger, but as a general 
 safeguard merely •,{o\ whereas a special case must be made in order to 
 obtain a restraining order under the 4th section. Qj) It is, indeed, much 
 to be regretted that this extremely useful process should be limited in its 
 application to stock in the public funds and government annuities. 
 
 As respects stock in the funds, the distringas under the 5th section, 
 and the restraining order under the 4th section, may both occasionally 
 be resorted to should circumstances require it ; for the adoption of either 
 remedy is not an election of the *one to the exclusion of the i-jicof^^-i 
 other.(g') "■ The 4th clause," said Sir J. Wigram, " was intended L J 
 for interim purposes to protect stock until the party claiming it should 
 have an opportunity of asserting his rights by bill in the ordinary way, 
 an opportunity often wanting from the facility with which that species of 
 property is transferred from hand to hand, and which the common dis- 
 tringas, preserved by the 5th section, does not in all cases afford. A 
 distringas remains ^qu. restrains] only at the discretion of the bank. 
 The restraining order, which the 4th section enables the court to grant, 
 is imperative; it continues so long as the court sees fit to direct, and can 
 only be discharged in the meantime upon the application of the parties 
 interested. Cases might arise in which from the discovery of new matter 
 after a distringas had issued, or from the bank peremptorily, but errone- 
 ously refusing to notice a distringas, or perhaps from other causes, the 
 party who obtained that writ might notwithstanding, upon a full disclo- 
 sure of the facts in a case of merits and urgency, entitle himself to a 
 restraining order under the 4th section. 'Y?) 
 
 SECTION IV. 
 
 OF COMPULSORY PAYMENT INTO COURT. 
 
 The rule as laid down by Lord Eldon, and which has ever since been 
 acquiesced in, is, that to call for payment of money into court, « the 
 plaintiff must either be solely entitled to the fund or have acquired in the 
 icliole of the fund such an interest, together tvith others, as entitles him 
 on his own behalf, and the hehalf of those others, to have the fund secured 
 in court."(s) It is not indispensable that the plaintiff should be the 
 person exclusively interested ; but if he have a partial interest, it is 
 enough, provided all the other persons interested *in the fund r:);^^^,--] 
 are before the court,(^) and the court may and occasionally will L " J 
 make orders for payment into court, although some of the persons inte- 
 
 (o) See Etty v. Bridges, 1 Y. & C. Ch. Ca. 486. (p) Note (/), p. 860, supra. 
 
 (q) In re Marquis of Hertford, 1 Hare, 584 ; 1 PhiL 129. 
 
 (r) In re Marquis of Hertford, I Hare, 590. 
 
 (4 Freeman v. Fairlie, 3 Mer. 29 ; and see Dubless v. Flint, 4 M. & C. 502 ; 
 M'Hardy v. Hitchcock, 11 Bear. 77. 
 
 (i) Whitemarsh v. Robertson, 4 Beav. 26 ; Bartlett v. Bartlett, 4 Hare, 631 ; but 
 see Ross v. Ross, 12 Beav. 89.
 
 674 
 
 LEWIN ON THE LAAV OF TRUSTS, ETC. 
 
 rested in the money are not before it.(«) And where, under the new 
 practice the other persons interested are not necessary parties to the 
 suit, payment into court may be obtained without service on them of the 
 notice of motion -Jv) but where the cestuis que trust had been served with 
 a copy of a bill for the appointment of new trustees which prayed a trans- 
 fer to the new trustees, the court held that they must be served with 
 notice of a motion to transfer the fund into court.((/-) 
 
 If the defendant admits himself to be a trustee, but it remains to be 
 ascertained whether he is a trustee for the plaintiff or for other parties, 
 the plaintiff may move upon his possible title, where all persons are before 
 the court among whom there will be found some one who is entitled.(a:) 
 <an a contest as to the title to any particular property," said Lord Cot- 
 tenham, " the court will, in some cases, take possession of the subject- 
 matter of the contest for security until it adjudicates upon the right. 
 Such cases generally arise when the property is in the hands of stake- 
 holders, factors, or trustees who do not themselves claim any title to it. 
 In ordering money into court under such circumstances, the court does 
 not disturb the possession of any party claiming title, or direct a payment 
 before the liability to pay is established. "(y) Occasionally, where the 
 fund is clear, and is divisible between the plaintiff and defendant in cer- 
 tain proportions, the court has ordered the defendant to pay into court 
 the share only of the plaintiff.(2:) 
 
 The merits upon which the motion is founded must be admitted by the 
 r*8m defendant's answer, and no evidence to this *effect can be ad- 
 L -1 duced aUunde.(a) Thus, if money bestanding in the joint names 
 of several persons, as of three trustees, it cannot be ordered into court on 
 the admission of the specific sum by one, though the others admit that a 
 sum is standing in their joint names, and the plaintiff offers to read affi- 
 davits sworn by them, from which the amount of the sum would appear.^//) 
 
 And it would seem that not only must the plaintiff be able to read 
 from the answer an admission of the defendant's receipt of the money, 
 but also an admission of his own title, or probable title, e. g. as next of 
 kin, heir-at-law, &c., and that if the defendant ignores the plaintiff's 
 title, the money will not be ordered into court. (c) 
 
 The plaintiff cannot ask for payment of money into court upon the 
 footing of an equity not alleged by the bill, but only stated by the answer. 
 Thus, where the plaintiff filed a bill claiming one-fifth of the residuary 
 
 M Wilton V. Hill, 2 De Gex. Mac. & Gor. 807. 
 
 (v) Marryat v. Marryat, 23 L. J. Ch. 876. 
 
 (w) Lewellin v. Cobbold, 1 Sm. & Giff. 572. 
 
 (z) See Bolder v. Bank of England, 10 Ves. 355 ; but see cases note (c), p. 865. 
 
 (y) Richardson v. Bank of England, 4 M. & C. 171. 
 
 (z) Rogers v. Rogers, 1 Anst. 174 ; see Score v. Ford, 7 Beav. 336. 
 
 (a) Beaumont v. Meredith, 3 V. & B. 181, per Lord Eldon ; Richardson v. Bank 
 of England, 4 M. & C. 171, 175, per Lord Cottenham ; Dubless v. Flint, 4 M. & C. 
 502 ; Black v. Creighton, 2 Moll. 554, per Sir A. Hart ; and see Green v. Pledger. 
 3 Hare, 171. The 59th sect, of the 15th & 16th Vict. c. 86, directing the defen- 
 dant's answer to be viewed merely as an affidavit in motions for injunction or 
 receiver, &c., does not touch motions for payment into court. 
 
 (b) Boschetti v. Power, 8 Beav. 98. 
 
 (c) Dubless v. Flint, 4 M. & 0. 502 ; M'Hardy v. Hitchcock, 11 Bear. 73.
 
 PLEADING AND PRACTICE. 675 
 
 estate of a testator asking relief, as in a case of an open account, and the 
 defendant by Lis answer stated a deed amounting to a settlement of 
 account under which he admitted a sum to be due from him, it was held 
 that the plaintiff could not without amending his bill obtain payment 
 into court of the sum so admitted to be due.((:Z) 
 
 It is not necessary that the defendant should acknowledge the fund to 
 be in his hands at the time of the answer ; for if he admit that he once 
 actually received it, and state that he afterwards applied it in a way not 
 authorized by the trust, the court will fasten upon the receipt and not 
 allow him to discharge himself by pleading a breach of duty ; as if a 
 trustee admit that he had a fund in his hands, but says that he afterwards 
 *sold it out and did not re-invest it,(e) or paid it away improper- r^ggy-i 
 ly,(/) or lent it on personal(^) or other security,(/i) not within L J 
 the terms of the trust. And no attention will be paid to the objection 
 that the bill was for the very purpose of securing the fund, and therefore 
 that the money ought not to be ordered into court until the decree. (i) 
 
 But if an executor (and the rule must apply equally to a trustee) 
 admits in his answer that he has received a specific sum, but adds that 
 he has made payments, the amount whereof he does not specify, in 
 respect of the testator's estate, the court will allow him to verify by affi- 
 davit the amount of the payments properly made, and will order him to 
 pay in the actual balance. (A:) 
 
 Payment of money into court is, in general, confined to the eases of a 
 defendant's admission of actual possession of the fund, or of a receipt not 
 followed by any subsequent legal discharge, and is not ordered upon a 
 mere admission of facts from which a liability may be inferred. (Z) Thus, 
 if a defendant admit that he has had a fund in his hands from a certain 
 time, and it clearly appears from the answer that he is liable and will be 
 decreed at the hearing to pay interest ; yet the court will not order him 
 to pay interest on motion, (???) unless he also admit that he has actually 
 made interest, which amounts to a receipt.(n) 
 
 The case of Kothwell v. Rothwell(o) is no exception to the r^ggg-j 
 *rule, for there the defendant had covenanted with the trustees l -• 
 of his marriage settlement to pay 850^. within twelve months from the 
 
 (d) Proudfoot v. Hume, 4 Beav. 476. 
 
 (e) Wiglesworth v. Wiglesworth, 16 Beav. 272 ; Phillipo v. Munnings, 2 M. & 
 C. 309 ; and see Meyer v. Montriou, 4 Beav. 346 ; Futter v. Jackson, 6 Beav. 424. 
 
 (/) See Scott v. Becher, 4 Price, 350 ; Meyer v. Montriou, 4 Beav. 343 ; Nokes 
 v. Seppings, 2 Phill. 19. 
 
 (ff) Vigrass v. Binfield, 3 Mad. 62 ; Collis v. Collis, 2 Sim. 365 ; Koy v. Gibbon, 
 
 4 Hare, 65. tt- j 
 
 (h) Wyatt v. Sharratt, 3 Beav. 498 ; Costeker v. Horrox, 3 Y. & C. 530 ; Hinde 
 T. Blake, 4 Beav. 597 ; Bourne v. Mole, 8 Beav. 177. 
 
 {i) See Rothwell v. Rothwell, 2 S. & S. 217 ; Wyatt v. Sharratt, 3 Beav. 498 ; 
 Collis V. Collis, 2 Sim. 365. 
 
 (k) Anon. 4 Sim, 359 ; aud see Proudfoot v. Hume, 4 Beav. 476 ; Roy v. Gib- 
 bon, 4 Hare, 65. 
 
 (l) See Richardson v. Bank of England, 4 M. & C. 174; Peacham v. Daw, 6 
 Mad. 98. 
 
 (m) Wood V. Downes, 1 V. & B. 50. 
 
 (n) Freeman v. Fairlie, 3 Mer. 43 ; see Wood v. Downes, 1 V. & B. 50, 
 
 (o) 2 S. & S. 217 ; see Richardson v. Bank of England, 4 M. & C. 174.
 
 676 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 marriage ; and the covenant not having been performed, the children 
 filed a bill against their parents and the trustees to have the money 
 raised ; and defendant admitting '^ that the 850^. had not been got in, 
 but that it was still in his hands," the court ordered the payment into 
 court, not on the admission of the debt, but " that it was still in his 
 
 hands." 
 
 However, in some cases the court orders payment into court upon 
 motion of what is apparently a mere debt ; as where an executor or 
 trustee admits himself to owe a debt to the estate he represents, for here 
 the person to pay and the person to receive being the same, the court 
 assumes that what ought to have been done has been done, and orders 
 the payment, not as of a debt by a debtor, but as of moneys realized in 
 the hands of of the executor or trustee.(p) Thus where A., B., and C, 
 were appointed executors of a will, of whom A. and C. alone proved, and 
 A. and B. were appointed trustees, and a bill was filed by A. for the 
 administration of the trusts of the will, and B. by his answer admitted 
 that he and his partner G. B. were indebted to the testatrix at the time 
 of her decease, and that part of the assets had been lent to the partner- 
 ship by C, and that the partners had paid some of the testatrix's debts, 
 and that the sum of 1137/. 7s. lOacA was due from the partnership to the 
 estate on the balance of accounts, the court held, notwithstanding B.'s 
 assertion to the contrary in his answer, that he must be deemed to have 
 acted, and ordered him to pay the debt due from his co-partner and him- 
 self into court. ((/) 
 
 The court will occasionally make an order for payment into the court 
 at the hearing of the cause "ex dchito Just ilia," though it might have 
 hesitated to do so upon an interlocutory application by motion ; as where 
 a plaintifi" having only a remote contingent interest in a fund claims at 
 the hearing to have the fund brought into court.(/*) And now that under 
 r*srQ1 *^^^ "^^ practice any material circumstances not in issue may be 
 L J brought before the court by affidavit at the hearing, an order for 
 payment into court will be made at the hearing, if proper, without any 
 notice of motion for that purpose. (.s) 
 
 The time to be given for payment of money into court will depend on 
 the circumstances of the case. If it be mon^ey in the defendant's hands, 
 it will be ordered in forthwith, and an immediate transfer may be directed 
 of stock standing in the defendant's name ; but in the latter case it will 
 be borne in mind, that during certain periods of the year the transfer 
 books are closed. Where the defendant had improperly lent a sum on 
 personal security, but no insolvency was suggested or any danger as to 
 the money, the court ordered it to be paid in on or before the first day of 
 the following term.(^) In another case, where the defendant had lent 
 820/. upon a mortgage not authorized by the trust, the court allowed six 
 
 (jo) Richardson v. Bank of England, 4 M. & C. 174, per Lord Cottenham. 
 iq) White v. Barton, 18 Beav. 192. 
 
 (r) Governesses' Institution v. Rusbridger, 18 Beav. 467. 
 (s) Isaacs v. Weatherstone, 10 Hare, Appendix, xxx. 
 
 (0 Vigrass v. Binfield, 3 Mad. 62 ; and see Hinde v. Blake, 4 Beav. 597 ; Ray v. 
 Gibbon, 4 Hare, 65.
 
 PLEADING AND PRACTICE. 677 
 
 weeks, with liberty to apply for furtlier time if the circumstances should 
 then warrant the indulgence. (?i) 
 
 Where a distringas or injunction has been previously obtained against 
 the transfer of the stock, the court orders the transfer into court to be 
 made, << notwithstanding the distringas or injunction." 
 
 SECTION V. 
 
 OF RECEIVERSHIP. 
 
 As the cestuis que trust or parties beneficially interested in an estate 
 are in equity the owners of it, should they all concur in an application 
 for a receiver and the trustee consent, the court will at any time make 
 the order.(y) But the usual recognizances will not be dispensed with.(?/-) 
 
 *And as each cestui que trust is entitled to have the fund pro- i->|co>-a-| 
 perly protected, a receiver will be granted at his instance if it can L J 
 be shown that the trustee has been guilty of misconduct, waste, or impro- 
 per disposition of the trust estate, (:x-) or that the fund is in danger from 
 his being in insolvent circumstances,^?/) or a bankrupt,^^) or that one 
 trustee has misconducted himself, and the other consents to the order, (a) 
 or is incapacitated from acting,(i) or that the executor is a person of bad 
 character, drunken habits, and great poverty.(c) 
 
 And a receiver has been appointed where the executrix was a feme 
 covert, and the husband, besides being in indifferent circumstances, was 
 out of the jurisdiction, for in such a case, said the court, if the executrix 
 waste the assets or refuse payment, the party aggrieved had no remedy, 
 as the husband must be joined in the action. (ci!) 
 
 And a receiver has been ordered when four trustees had been named 
 in a will and one died, and another was abroad, and the third had 
 scarcely interfered in the trust, and the fourth submitted to a receiver 
 by his answer.(e) In another case the three trustees disagreed, and a 
 receiver was appointed. (/) The order was taken by arrangement between 
 the parties, but the court had previously expressed its opinion that, unless 
 the trustees could agree, a receiver must be appointed. And the court 
 will grant a receiver at the instance of the cestui que trust, when the 
 single trustee is, or all the trustees are, out of the jurisdiction. ((7) 
 
 (m) Wyatt V. Sharratt, 3 Beav. 498 ; Score v. Ford, 1 Beav. 333. 
 
 (v) Brodie v. Barry, 3 Mer. 695 ; Beaumont v. Beaumont, cited lb. 696 ; see 
 Browell v. Reid, 1 Hare, 435. 
 
 (iv) Manners v. Furze, 11 Beav. 30 ; Tylee v. Tylee, 17 Beav. 583. 
 
 (x) Anon. 12 Ves. 5, per Sir W. Grant ; and see Middleton v. Dodswell, 13 Ves. 
 266; Howard v. Papera, 1 Mad. 142 ; Richards v. Perkins, 3 Y. & C. 299 ; Evans 
 V. Coventry, 5 De G. M. & G. 911. 
 
 (y) Scott V. Becher, 4 Price, 346; Mansfield v. Shaw, 3 Mad. 100; and see 
 Anon. 12 Ves. 4; Middleton v. Dodswell, 13 Ves. 266 ; Havers v. Havers, Barn. 23. 
 
 (z) Gladden v. Stoueman, 1 Mad. 143, note ; Langley v. Hawk, 5 Mad. 46. 
 
 (a) Middleton v. Dodswell, 13 Ves. 266. (6) Bainbrigge v. Blair, 3 Beav. 421. 
 
 (c) Everett v. Prythergch, 12 Sim. 367, 3G8. (d) Taylor v. Allen, 2 Atk. 213. 
 
 (e) Tidd v. Lister, 5 Mad. 429. (/) Day v. Croft, May 2, 1839, M. R. 
 
 {g) Noad v. Backhouse, 2 Y. & C. Ch. Ca. 529 ; Smith v. Smith, 10 Hare, App. 
 Ixzi.
 
 678 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 But the court is not in the habit of granting a receiver, and 
 L "'■'•J so taking the administration out of the hands of the trustees, the 
 natural curators of the estate, upon very slight grounds. (A) Thus it is 
 no sufficient cause for a receiver that one of several trustees has dis- 
 claimed, (i) or is inactive, or gone abroad. {k'^ Nor is it a sufficient cause 
 that trustees are in mean (not insolvent) circumstanees,(^) or being 
 trustees for sale have let the purchaser into possession before they have 
 received the purchase-money, for the court will not necessarily infer this 
 to be misconduct, (m) 
 
 When a receiver is appointed under the authority of the court, he is 
 appointed for the benefit of all parties interested, and therefore will not 
 be discharged merely on the application of the party at whose instance 
 the order was made.(?i) 
 
 However, when a receiver had been appointed on the application of the 
 plaintiif, the tenant for life, on the ground of the misconduct of one of 
 the trustees and the incapacity of the other, and afterwards three new 
 trustees were appointed by the court, who, on a motion by the plaintiff 
 to discharge the receiver, undertook to receive the rents and pass their 
 accounts half-yearly before the master, in the same way as a receiver, the 
 court said it was not proposed to deprive one party of the protection of 
 the receiver, but merely to substitute the trustees in his place ; that the 
 tenant for life ought not unnecessarily to be charged with the costs of a 
 receiver ; that it was not intended to put the owner in possession ; that 
 if any objections were shown to the trustees the application would be 
 refused, but in the absence of such objections it was a reasonable request, 
 and the order for discharging the receiver was made.(o) 
 
 [*872] *SECTION VI. 
 
 or COSTS OF SUIT. 
 
 I. As between strangers on the one hand, and trustees and cesfuis que 
 trust on the other. 
 
 In these cases, the trustee is on no better footing than any ordinary 
 plaintiff or defendant, for the circumstances of the trust cannot be allowed 
 to affect the interest of a third person. (j;) 
 
 Thus on a bill by a stranger for specific performance of a contract, the 
 vendor or trustee for sale must, if he cannot make a title, pay the costs 
 of the suit agreeably to the general rule. (5) 
 
 So where trustees or executors are brought before the court as necessary 
 
 {h) See Middleton v. Dodswell, 13 Ves. 268 ; Barkley v. Lord Reay, 2 Hare, 306. 
 
 (i) Browell v. Reid, 1 Hare, 434 ; but see Tait v. Jenkins, 1 Y. & C. Ch. Ca. 492. 
 
 {k) Browell v. Reid, 1 Hare, 435, per Sir J. Wigrara. 
 
 {l) Anon. 12 Ves. 4 ; Howard v. Papera, 6 Mad. 142 ; and see Hathornthwaite 
 V. Russell, 2 Atk. 126. In Havers v. Havers, Barn. 23, the court considered mis- 
 application probable. 
 
 (m) Browell v. Reid, 1 Hare, 434. 
 
 (n) Bainbrigge v. Blair, 3 Beav. 423, per Lord Langdale. 
 
 (0) Bainbrigge v. Blair, 3 Beav. 421, 423, 424 ; and see Poole v. Franks, 1 Moll, 
 ""v , „ , , (P) Burgess v. Wheate, 1 Ed. 251, per Lord Northington. 
 
 (q) hdwards v. Harvey, Coop. 40 ; and see Hill v. Magan, 2 Moll. 460.
 
 PLEADING AND PRACTICE. 679 
 
 parties by a stranger, if the trustees or executors contest the claims of 
 the plaintiff, and the plaintiff recover in the suit, they are not entitled to 
 their costs ; but if they submit the point to the court, they will be decreed 
 their costs. (r) 
 
 If a plaintiff /a ;7 in his suit, but stands in so hard a case that he ought 
 not to imy any costs, the court will not oblige him to pay the costs of a 
 defendant because he happens to sustain the character of trustee. (s) In 
 a bill of foreclosure against the mortgagor and his trustee to bar dower, 
 the trustee is not entitled to his costs as against the mortgagor.(^) 
 
 Where the bill of a stranger is dismissed with costs, a trustee, who is 
 a defendant, will not, as is usual between trustee and cestui que trust, 
 be ordered his costs as between attorney and client, but only as between 
 party and party. (?t) 
 
 If a creditor file a bill against an executor for payment of a debt, the 
 rule which prevails at law is not also the rule of equity, viz., that if 
 the creditor recover he shall be entitled to *his costs de bonis r^orjo-, 
 testatoris, and if there be none, then de bonis propriis of the L J 
 executor ; for the consideration of costs in equity rests entirely in the 
 discretion of the court. (i') 
 
 As the law formerly stood, if the assets were not sufficient to cover 
 both the debt and the costs, the executor was not decreed to pay costs,(r(j) 
 unless he had misconducted himself, as by having satisfied simple con- 
 tract debts in preference to debts upon specialty, (a:) But he was not 
 entitled to retain his own costs out of the assets in preference to the 
 claims of the plaintiff.(3/) And if a bill had been filed by a specialty 
 creditor, and the specialty debt had exhausted the personal assets, the 
 executor could not have claimed to be reimbursed out of the real estate 
 to the prejudice of the testator's heir;(5;j for the executor, it was said, 
 should have considered the risk before he applied for the probate. (a) 
 But now the practice is that the executor shall have his own costs in the 
 first place, even as against the plaintiff, for the court will not take the 
 fund out of his hands until his costs are paid.(Z*) 
 
 II. Of costs as between trustees and cestuis que trust, inter se. 
 
 The general rule is that a trustee shall have his costs of suit awarded 
 him at the hearing either out of the trust estate, or to be paid by 
 his cestui que trust.(c'^ And if there be a fund under the control of the 
 
 (r) Rashley v. Masters, 1 Ves. jun. 201, see 205. 
 
 (s) Brodie v. St. Paul, lb. 326, see 334. {(} Horrocks v. Ledsam, 2 Coll. 208. 
 
 (u) Mohun V. Mohun, 1 Sw. 201 ; Saunders v. Saunders, 5 Weekly Rep. 479. 
 
 (v) Twisleton v. Thelwel, Hard. 165 ; Uvedale v. Uvedale, 3 Atk. 119; but see 
 Davy T. Seys, Mos. 204. 
 
 (w) Twisleton v. Thelwel, ubi supra ; Morony v. Vincent, 2 Moll. 461. 
 
 (x) Jefferies v. Harrison, 1 Atk. 468 ; and see Bennett v. Attkins, 1 Y. & C. 247 ; 
 Wilkins x. Hunt, 2 Atk. 151. 
 
 ((/) Humphrey v. Morse, 2 Atk. 408 ; Sandys v. Watson, 2 Atk. 80 ; and see 
 Adair v. Shaw, 1 Sch. & Lef. 280. 
 
 (z) Uvedale v. Uvedale, 3 Atk. 119 ; and see Nash v. Dillon, 1 Moll. 237. 
 
 (a) See Uvedale v. Uvedale, 3 Atk 119 ; Humphrey v. Morse, 2 Atk. 408. 
 
 (b) Bennet v. Going, 1 Moll. 529 ; Tipping v. Power, 1 Hare, 405 ; Ottley v. 
 Gilbv, 8 Beav. 603 ; Tanner v. Dancey, 9 Beav. 339. 
 
 (c) 1 Eq. Ca. Ab. 125, note (a) ; Hall v. Hallet, 1 Cox, 141, per Lord Thurlow ; 
 Attorney-General v. City of London, 3 B. C. C. 171 ; Norris v. Norris, 1 Cox, 183 ;
 
 680 
 
 LETVIN ON THE LAW OF TKUSTS, ETC. 
 
 f 
 
 court (but in t^eneral not otherwise,(c7)) he will have his costs as 
 [*874] ^jet^egn solicitor and client.(e) If it appear upon the pleadings 
 or the court be otherwise satisfied that the trustee has sustained charges 
 and expenses beyond the costs of suit, the court will at the same time 
 order him his costs, charges, and expenses properly incurred. If the 
 trustee be a solicitor, the court will not declare that the trustee shall 
 have his costs out of pocket only, but will give him his costs as between 
 solicitor and client in the usual way, and leave it to the taxing officer to 
 deal with the effect of the order.(/) 
 
 Even where the trustee did not appear at the hearing, and a decree 
 nid was made against him, and the trustee set down the cause again, and 
 prayed to have his costs of the suit upon his paying the costs of the day. 
 Lord Kenyon said, "The payment of the costs of the day makes the 
 trustee rectum in curia ; and as he would most unquestionably have been 
 entitled to his costs if he had appeared at the original hearing, so he now 
 stands in the same situation, and is therefore entitled to his costs."(^) 
 
 But if the decree has been paused, a trustee who has omitted to ask 
 for his costs at the hearing cannot have the cause re-heard upon the 
 subject of costs only, and cannot obtain an order for payment of his costs 
 upon presenting a petition. (/«) 
 
 If a person named as trustee be made defendant to a suit, and by his 
 answer disclaim the trust, the bill will be dismissed as against him with 
 costs -M) but not with costs as hctwecn solicitor and client ; for, having 
 refused to accept the office, he stands in the light of any ordinary defend- 
 ant -Alx) and if his answer be unnecessarily long, he will only be allowed 
 the reasonable costs of a disclaimer. (^) 
 
 r*S'-p;n *If a person be a trustee of a deed void as against creditors, 
 L -I or on other grounds, he is entitled to his costs if the plaintiff by 
 praying a conveyance by the trustee elect to treat him in that charac- 
 ter. (m) But if the deed contain a false recital, for the purpose of mis- 
 leading bona fde creditors, the trustee, on a bill to set it aside, will not 
 have his costs. (n) 
 
 2. If any particular instance of misconduct, or a general dereliction 
 of duty in the trustee, (o) or even his mere caprice and obstinacy, (p) be 
 
 Sammes v. Rickman, 2 Ves. jun. 38, per Lord Chief Baron Eyre; Rashley v. Mas- 
 ters, 1 Ves. jun. 201 ; Roche v. Hart, 1 1 Ves. 58 ; Maplett v. Pocock, Rep. t. 
 Finch, 136. Landen v. Green, Barn. 389 ; Taylor v. Glanville, 3 Mad. 176, &c. 
 
 [d) Edenborough v. Archbishop of Canterbury, 2 Russ. 112 ; but see Attorney- 
 General V. Cuming, 2 Y. & C. Ch. Ca. 155. 
 
 {e) Mohun v. Mo'hun, 1 Sw. 201, per Sir T. Plumer ; Moore v. Frowd, 3 M. & C. 
 49, per Lord Cottenhani. 
 
 (/) York V. Brown, 1 Coll. 260. {g) Norris v. Norris, 1 Cox, 183. 
 
 [h) Colraan v. Sarell, 2 Cox, 206. (j) Hickson v. Fitzgerald, 1 Moll. 14. 
 
 (k) Norway v. Norway. 2 M. & K. 278, overruling Sherratt v. Bentley, 1 R. & 
 M. 655. 
 
 {I) Martin v. Persse, 1 Moll. 146. 
 
 (w) Snow V. Hole, V. C. of England, March 8, 1845. 
 
 (■«) Turquand v. Knight, 14 Sim. 643. 
 
 (o) Attorney-General v. Robert, Rep. t. Finch, 259 ; Earl Powlet v. Herbert, 1 
 Ves. jun. 297 ; Caflrey v. Darby, 6 Ves. 4S8 ; Littlehales v. Gayscoyne, 3 B. C. C. 
 73; Ashburnbam v. Thompson, 13 Ves. 402; Hide v. Haywood', 2 Atk. 126; 
 Adams v. Clifton, 1 Russ. 297 ; Mosley v. Ward. 11 Ves. 581 ; Piety v. Stace, 4 
 
 {p) See next page, for note (/>).
 
 PLEADING AND PRACTICE. 681 
 
 the iiniuediate cause why the suit was instituted, the trustee, on the 
 charge beiug substantiated against him, must pay the costs of the pro- 
 ceedings his own improper behaviour has occasioned. And where two 
 executors had kept hirge balances in their hands for a great length of 
 time, and one of them had become insolvent, the court decreed each of 
 them to be liable for the costs of the u-hole suit.(2') 
 
 But where a bill was filed charging the trustee with a breach of trust 
 both as to realty and personalty, and the charge failed as to the former 
 but succeeded as to the latter, the court said, it was scarcely possible to 
 suppose that the trustee should be permitted to have his costs, but it 
 would be injustice to make him pay the whole costs, as one part of the 
 bill had failed. (r) 
 
 ^Trustees for sale had purchased in the name of a trustee at rxcOTp-i 
 an undervalue, but without any imjnitation of fraud, and hy ^ ^ -I 
 auction. As to so much of the suit as related to calling upon the trus- 
 tees to submit to a resale, and the directions consequential thereon, the 
 court gave relief against the trustees uuth costs ; but as to the accounts 
 that must have been taken had the sale been unimpeachable, the trus- 
 tees were allowed their costs, (s) 
 
 If the suit was occasioned by the mistake, or some slight neglect of 
 the trustee, the court will content itself with not giving him costs, (^) or 
 will punish him with j:)a^me?i^ of part of the costs only,(«) or will even 
 give him his costs. (v) 
 
 And where a suit was mainly occasioned by the breach of trust of a 
 trustee, though he was deci-eed to pay the costs up to the hearing, yet he 
 was held entitled to his subsequent costs relating to the ordinary taking 
 of the accounts. (?o) 
 
 3. If the bill filed did not originate from any necessity of inquiring 
 into the conduct of the trustee, but in the course of the proceedings 
 instituted upon other grounds, it appears the trustee has in some parti- 
 cular instance been guilty of a breach of trust, the court will not award 
 against the trustee the costs of the ichole cause, but only of so much of 
 
 Ves. 620 ; Seers v. Hind. 1 Ves. jun. 294 ; Fell v. Lutwidge, Barn. 319, see 322; 
 Brown v. How, Barn. 354, see 358 ; Sheppard v. Smith, 2 B. P. C. 372 ; Haber- 
 dashers' Company v. Attorney-General, 2 B. P. C. 370; Fr.anklin v. Frith, 3 B. C. 
 C. 433 ; Whistler V. Newman, 4 Ves. 129; Stacpoole v. Stacpoole, 4 Dow. 209. 
 Crackett v. Bethune, 1 J. & W. 586 ; Baker v. Carter, 1 Y. & C. 252, per Lord 
 Abinger, C. B. ; Hide v. Haywood, 2 Atk. 120 ; Wilson v. Wilson, 2 Keen, 249 ; 
 Attorney-General v. Wilson, 1 Cr. & Phil. 1 ; Lyse v. Kingdon, 1 Coll. 184. 
 
 (j9) Taylor v. Glanville, 3 Mad. 178, per Sir J. Leach ; Jones v. Lewis, I Cox, 
 199 ; Earl of Scarborough v. Parker, 1 Ves. jun. 267 ; Kirby v. Mash, 3 Y. & C. 
 295 ; Thorby v. Yeats, 1 Y. & C. Ch. Ca. 438 ; Hampshire v. Bradley, 2 Coll. 34 ; 
 Penfold V. Bouch, 4 Hare, 271 ; and see Burrows v. Greenwood, 4 Y. & C. 251. 
 
 (§') Littlehales v. Gascoyne, 3 B. C. C. 73. 
 
 {r) Pocock V. Reddington, 5 Ves. 800. (s) Sanderson v. Walker, 13 Yes. 601. 
 
 (<) O'Callagan v. Cooper, 5 Ves. 117 ; Mousley v. Carr, 4 Beav. 49 ; Attorney- 
 General V. Drapers' Company, lb. 71 ; Devey v. Thornton, 9 Hare, 222. 
 
 (m) East V. Ryal, 2 P. W. 284. 
 
 \v) Taylor v.'Tabrum, 6 Sim. 281 ; Flanagan v. Nolan, 1 Moll. 84 ; Travers v. 
 Townsend, lb. 496 ; Attorney-General v. Caius College, 2 Keen, 150; Bennett v. 
 Atkins, 1 Y. & C. 247 ; Fitzgerald v. O'Flaherty, 1 Moll. 347 ; Attorney-General 
 V. Drummond, 2 Conn. & Laws. 98 ; Royds v. Royds, 14 Beav. 54. 
 
 {w) Hewett v. Foster, 7 Beav. 348. 
 
 April, 1858. — i4
 
 682 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 1 
 
 it as connects itself with his misconduct, and as to the rest of the suit 
 will allow him his costs. (i-) 
 
 An executor, instead of accumulating a fund as directed by the will, 
 had improperly kept the balance in his hands ; but, as the amount of 
 costs had in great measure been occasioned by the inquiry what rule the 
 court ought to adopt with respect to *the computation of interest, 
 C*^'^] it was thought hard under the circumstances to fix the executor 
 with payment of costs even relatively to the breach of trust ; and there- 
 fore the court gave no costs. (.y) 
 
 As to one part of the suit, the trustee ought from his misconduct to have 
 paid the costs, and, as to another, to have beeen alloiccd his costs ; and 
 the court by a kind of compromise, left each party to pay his own 
 costs. (z) 
 
 Where the breach of trust is trivial, the court may overlook it alto- 
 gether, and give the trustee his whole costs. (a) 
 
 4. If a trustee have a private interest of his own separate and inde- 
 pendent from the trust, and oblige the cestui que trust, to come into a 
 court of equity merely to have some point relating to the trustee's pri- 
 vate interest determined at the expense of the trust, that is such a vexa- 
 tious proceeding in the trustee, that, for example's sake, he will bo 
 decreed to pay the costs of the whole suit.(?^) 
 
 5. If on a bill for an account the defendant says in his answer he 
 believes the plaintiff is considerably indebted to him, and after a long 
 investigation it proves the defendant i.s considerably indebted to the 
 plaiutiflP, the trustee, thus daring the plaiTitifF to his account, will be 
 decreed to pay the costs. (c) And if the balance be in favour of the 
 trustee, but far below what he had stated in his answer, he will not be 
 entitled to have his costs, (fH or at least not the costs of the account H Mi 
 itself, (e) 
 
 A trustee will be fixed with costs if he wilfully misstate the accounts, (/) 
 or if, by any chicanery in his answer, he keep the cestui que trust from 
 a true knowledge of the accounts,(^) or even if he have kept the accounts 
 r*Q7Sl ^" ^ ^^^y confused *manncr.(7() And an executor will be liable 
 L -I to pay costs if he deny assets, and the contrary be established 
 against him. (A 
 
 Where a corporation filling the character of trustees for a grammar 
 school by their answer pleaded ignorance of the claims of the charity, and 
 the information was afterwards elicited from the documents scheduled to 
 their answer, as the court inferred from such conduct a disposition to 
 
 (x-) Tebbs v. Carpenter, 1 Mad. 200, see 308 ; Newton v. Bennet, 1 B. C. C. 359 ; 
 Pride v. Fooks, 2 Bear. 430; Heighington v. Grant, 1 Phil. 600. 
 
 (?/) Raphael v. Boehm, 13 Yes. 592. (z) Newton v. Bennet, 1 B. C. C. 3G2. 
 
 {a) Fitzgerald v. Pringle, 2 Moll. 534; Bailey v. Gould, 4 Y. & C. 221; see 
 225 ; Knott v. Cottee, IG Bear. 77 ; Cotton v. Clark, 16 Beav. 134. 
 
 {h) Henley v. Philips, 2 Atk. 48. (c) Parrot v. Treby, Pr. Ch. 254. 
 
 (d) Attorney-General v. Brewers' Company, 1 P. W. 376. 
 
 (c) Fozierv. Andrews, 2 Jones & Lat. 199. 
 
 (/) Shepi.ard v. Smith, 2 B. P. C. 372 ; and see Flanagan v. Nolan, 1 Moll. 86. 
 
 {g) Avery v. Osborne, Barn, 349 ; Reech v. Kennegal. 1 Yes. 123. 
 
 {h) Norbury t. Calbeck, 2 Moll. 461. (/) Sandys v. '\Yatson, 2 Atk. 80. 
 
 1'^ 
 
 I
 
 PLEADING AND PRACTICE. 683 
 
 obstruct and defeat the ends of justice, tlie corporation was decreed to 
 pay the costs of the suit.(/.-) 
 
 And a corporation similarly circumstanced was punished in the same 
 manner where, the court having directed the production of certain docu- 
 ments, it was afterwards discovered that a very material one had been 
 suppressed. (?) 
 
 6. The costs of the suit will be cast upon the trustee, if, in his answer, 
 he set up a title of his own, and make an ill defence ;(m) and he will 
 not be allowed to have his costs if he set up any trust different from 
 what it actually is.(?i) 
 
 An executor sued by the next of kin had put the plaintiffs to the 
 proof of their relationship, and the fact not admitting a doubt the exe- 
 cutor was fixed with the costs of the inquiry. (o) 
 
 7. It was laid down as a rule by Lord Thurlow, that " where he was 
 obliged to give interest against executors as a remedy for a breach of 
 trust, costs against them must follow of course ;"(jj) but Sir W. Grant 
 said, " that was a proposition to which he was not quite prepared to 
 accede, as there might be many cases in which executors must pay 
 interest, which would not be cases for costs ',"{q) and the existence of 
 any *such rule has since been denied •,[r) and where the trustee pgyg-i 
 has not misconducted himself, but on a cestui' s que trust bill L J 
 against him for an account has been decreed to pay costs, he has been 
 allowed his general costs of suit, excluding the costs incurred in taking 
 the account in which the trustee failed.(s) The meaning of Lord Thur- 
 low probably was, that where the suit was occasioned by the miscon- 
 duct of the trustee, and the charge against him was shown to be well 
 founded by the court's fixing him with interest, the costs of the suit in 
 that case would be consequential upon the relief. (<) 
 
 {k) Attorney-General v. East Retford, 2 M. & K. 35. 
 
 (/) Borough of Hertford \. Poor of same Borough, 2 B. P. C. 377. 
 
 (m) Loyd V. Spillet, 3 P. W. 344; Bayly v. Powell, Pr. Ch. 92 ; Willis v. His- 
 cox, 4 M. & C. 197 ; Attorney-General v. Drapers' Company, 4 Beav. 67 ; Attor- 
 ney-General V. Christ's Hospital, lb. 73 ; Irwin v. Rogers, 12 Ir.'Eq. Rep. 159. 
 
 {n) Ball V. Montgomery, 2 Ves. jun. 191, see 199. 
 
 (o) Lowson V. Copeland, 2 B. C. G. 156. 
 
 [p) Seers v. Hind, 1 Ves. jun. 294 ; and see Franklin v. Frith, 3 B. C. C. 433 ; 
 Mosley v. Ward, 11 Ves. 581. 
 
 {q) Ashburnham v. Thompson, 13 Ves. 404. 
 
 (r) Tebbs v. Carpenter, 1 Mad. 308 ; Woodhead v. Marriott, C. P. Cooper's Rep. 
 1837-38, 62 ; Holgate v. Haworth, 17 Beav. 259. 
 
 (•s) Fozier v. Andrews, 2 Jones & Lat. 199. , 
 
 {t) See Mosley v. Ward, 11 Ves. 582.
 
 TEUSTEE ACT, 1850. 
 
 13° & 14° Victoria, Cap. 60. 
 
 An Act to consolidate and amend the Laics relating to the Conveyance 
 and Transfer of Real and Personal Property vested in Mortgagees 
 and Trustees, bth August, 1850. 
 
 Whereas an act was passed in the first year of the reign of his hite 
 majesty King William the Fourth, intituled " An act for amending the 
 Laws respecting Conveyances and Transfers of Estates and Funds vested 
 in Trustees and Mortgagees, and for enabling courts of equity to give 
 effect to their Decrees and Orders in certain cases :" And whereas an 
 act was passed in the fifth year of the reign of his late majesty King 
 William the Fourth, intituled " An act for the Amendment of the Law 
 relative to the Escheat and Forfeiture of Real and Personal Property 
 holden in trust ;" And whereas an act was passed in the second year of 
 the reign of her present majesty, intituled " An Act to remove Doubts res- 
 pecting Conveyances of Estates vested in Heirs and Devisees of Mortga- 
 gees :" And whereas it is expedient that the provisions of the said acts 
 should be consolidated and enlarged : Be it therefore enacted by the queen's 
 most excellent majesty, by and with the advice and consent of the lords 
 spiritual and temporal, and commons, in this present parliament assem- 
 bled, and by the authority of the same, that all proceedings under the 
 said acts or any of them commenced before the passing of this act may 
 be proceeded with under the said recited acts, or according to the provi- 
 sions of this act, as shall be thought expedient, and, subject as aforesaid, 
 that the said recited acts shall be and the same are hereby repealed : 
 Provided Always, that the several acts repealed by the said recited 
 acts shall not be revived, and that such repeal shall only be on and after 
 this act coming into operation. 
 
 r*8Sll ^^^' ''^^^ whereas it is expedient to define the meaning iu 
 L -I which certain words are hereafter used : It is declared that the 
 several words hereinafter named are herein used and applied in the 
 manner following respectively ; (that is to say,) 
 
 The word '^ lands" shall extend to and include manors, messuages, 
 tenements, and hereditaments, corporeal and incorporeal, of every 
 tenureordescription, whatever may be the estate or interest therein : 
 The word "stock" shall mean any fund, annuity or security transfera- 
 ble in books kept by any company or society established, or to be
 
 TRUSTEE ACT, 185 0. 685 
 
 establislied, or trausferable by deed alone, or by deed accompanied 
 by other formalities, and any share or interest therein :(a\ 
 
 The word " seised" shall be applicable to any vested estate for life or 
 of a greater description, and shall extend to estates at law and in 
 equity,^^) in possession or in futurity, in any lands : 
 
 The word "possessed" shall be applicable to any vested estate less 
 than a life estate, at law or in equity, in possession or in expectancy, 
 in any lands: 
 
 The words " contingent right," as applied to lands, shall mean a con- 
 tingent or executory interest, a possibility coupled with an interest, 
 whether the object of the gift or limitation of such interest or 
 possibility be or be not ascertained, also a right of entry whether 
 immediate or future, and whether vested or contingent : 
 
 The words " convey" and " conveyance," applied to any person, shall 
 mean the execution by such person of every necessary or suitable 
 assurance for conveying or disposing to another lands whereof such 
 person is seised or entitled to a contingent right, either for the whole 
 estate of the person conveying or disposing, or for any less estate, 
 together with the performance of all formalities required by law to 
 the validity of such conveyance, including the acts to be performed 
 by married women and tenants in tail in accordance with the provi- 
 sions of an act passed in the fourth year of the reign of his late 
 majesty King William the Fourth, intituled An Act for the Aboli- 
 tion of Fines and ^Hecovertes, and the substitution of more r-^QQi)-\ 
 simple modes of Assurance, {c^ and including also surrenders L "'J 
 and other acts which a tenant of customary or copyhold lands can 
 himself perform preparatory to or in aid of a complete assurance of 
 such customary or copyhold lands :(rA 
 
 The words "assign" and "assignment" shall mean the execution and 
 performance by a person of every necessary or suitable deed or act 
 for assigning, surrendering, or otherwise transferring lands of which 
 such person is possessed, either for the whole estate of the person 
 so possessed or for any less estate : 
 
 The word " transfer" shall mean the execution and performance of 
 every deed and act by which a person entitled to stock can transfer 
 such stock from himself to another : 
 
 The words "Lord Chancellor" shall mean as well the Lord Chancellor 
 of Great Britain as any Lord Keeper or Lords Commissioners of 
 the Great Seal for the time being : 
 
 The words "Lord Chancellor of Ireland" shall mean as well the Lord 
 Chancellor of L'eland as any Keeper or Lords Commissioners of the 
 Great Seal of Ireland for the time being : 
 
 («) See Re Angelo, 5 De Gex & Sm. 278. 
 
 (b) In suits where all parties beneficially interested are before the court, it is 
 sufficient for the purchaser to take a conveyance of the legal estate, for the equi- 
 ties of the parties are bound by the order for sale ; Re Williams's Estate, 5 De 
 Gex & Sni. 515. And see the analogous case under the prior act, Goddard v. 
 Macaulay, 6 Ir. Eq. Rep. 221. 
 
 (c) See Powell v. Matthews, 1 Jur. N. S. 973. 
 
 (d) See Rowley v. Adams, 14 Beav. 130.
 
 (386 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 The word "trust" shall not mean the duties incident to an estate 
 conveyed by way of mortgage ;(e) but, with this exception the words 
 ''trust" and "trustee" shall extend to and include implied and 
 constructive trusts,(/) and shall extend to and include cases where 
 the trustee has some beneficial interest or estate in the subject of 
 the trust, and shall extend to and include the duties incident to the 
 office of personal representative of a deceased person : 
 
 The word " lunatic" shall mean any person who shall have been found 
 to be a lunatic upon a commission of inquiry in the nature of a 
 writ de lunatico inquirendo : 
 
 The expression " person of unsound mind" shall mean any person not 
 an infant, who, not having been found to be a lunatic, shall 
 L 006^ ^-^^ incapable from infirmity of mind((7) to manage his own 
 
 affairs : 
 
 The word " devisee" shall, in addition to its ordinary signification, 
 mean the heir of a devisee and the devisee of an heir, and generally 
 any person claiming an interest in the lands of a deceased person, 
 not as heir of such deceased person, but by a title dependent 
 solely upon the operation of the laws concerning devise and 
 descent : 
 
 The word "mortgage" shall be applicable to every estate, interest, or 
 property in lands or personal estate which would in a court of equity 
 be deemed merely a security for money ; 
 
 The word " person," used and referred to in the masculine gender, 
 shall include a female as well as a male, and shall include a body 
 corporate : 
 
 And generally, unless the contrary shall appear from the context, 
 every word importing the singular number only shall extend to 
 several persons or things, and every word importing the plural num- 
 ber shall apply to one person or thing and every word importing 
 the masculine gender only shall extend to a female. 
 
 III. And be it enacted, that when any lunatic or person of unsound 
 mind shall be seised or possessed of any lands upon any trust or by way 
 of mortgage, it shall be lawful for the lord chancellor,(/t) intrusted by 
 
 (e) As to the question upon the 1 W. 4, c. 60, whether the word " trust'' in- 
 cluded a " mortgage" see note (x), p. 836, supra. 
 
 {/) A vendor, after a contract, has been held, to be a trustee of shares in a 
 joint-stock bank for the purchaser; Re Angelo, 5 De Gex & Sm. 278. But in 
 cases of real estate, if not generally, at least where the alleged trustee may possi- 
 bly dispute the trust, the constructive trust must first have been declared by the 
 decree of the court; so that the infant heir of a vendor who has died intestate 
 having contracted to sell real estate in his life time, is not a constructive trustee 
 for the purchaser unless so declared by decree. Re Carpenter, 1 Kay, 418 ; Re 
 Burt, 9 Hare, 289. Re Wise, 5 De Gex & Sm. 415, is distinguishable; and see 
 Propert's Purchase, 22 L. J. Ch. 948. 
 
 {g) See cases under the 1 W. 4, c. 60, Re Wakeford, 1 Jones & Lat. 2 ; Re 
 Jones, 6 Jur. 545 ; Re Walker, 1 Cr. & Ph. 147. 
 
 {h) It was doubted whether the lords justices, though they are in fact intrusted 
 under the queen's sign manual with the care, &c., of lunatics, had power to exer- 
 cise the jurisdiction given by the act to the lord chancellor intrusted, &c. Re 
 Waugh's Trust, 2 De Gex, Mac. & Gor. 279: Re Pattinson, 21 Law J. Ch. 280. 
 See now the 15 & 16 Vict. c. 87, s. 15, removing the doubt, and the 11th section 
 of the Extension Act.
 
 TRUSTEE ACT, 1850. 687 
 
 virtue of the queen's sign manual with the care of the persons and es- 
 tates of lunatics, to make an order that such lands be vested in such 
 person or persons in such manner and for such estate as he shall direct; 
 and the order shall have the same effect as if the trustee or mortgagee 
 had been sane, and had duly executed a conveyance or assignment of 
 the lands in the same manner for the same estate. (V) 
 
 *IV. And be it enacted, that when any lunatic or person of r*gg^-i 
 unsound mind shall be entitled to any contingent right in any L "-"- J 
 lands upon any trust or by way of mortgage, it shall be lawful for the 
 lord chancellor, intrusted as aforesaid, to make an order wholly releasing 
 such lands from such contingent right, or disposing of the same to such 
 person or persons as the said lord chancellor shall direct; and the order 
 shall have the same effect as if the trustee or mortgagee had been sane, 
 and had duly executed a deed so releasing or disposing of the contin- 
 gent right. 
 
 V. And be it enacted, that when any lunatic or person of unsound 
 mind shall be solely entitled to any stock or to any chose in action upon 
 any trust or by way of mortgage, it shall be lawful for the lord chancel- 
 lor, intrusted as aforesaid, to make an order vesting in any person or per- 
 sons the right to transfer such stock, or to receive the dividends or 
 income thereof, or to sue for and recover such chose in action, or any 
 interest in respect thereof; and when any person or persons shall be en- 
 titled jointly with any lunatic or person of unsound mind to any stock 
 or chose in action upon any trust or by way of mortgage, it shall be 
 lawful for the said lord chancellor to make an order vesting the right to 
 transfer such stock, or to receive the dividends or income thereof, or to 
 sue for and recover such chose in action, or any interest in respect thereof, 
 either in such person or persons so jointly entitled as aforesaid, or in such 
 last-mentioned person or persons together with any other person or per- 
 sons the said lord chancellor may appoint. 
 
 VI. And be it enacted, that when any stock shall be standing in the 
 name of any deceased person whose personal representative is a lunatic 
 or person of unsound mind, or when any chose in action shall be vested 
 in any lunatic or person of unsound mind as the personal representative 
 of a deceased person, it shall be lawful for the lord chancellor, intrusted 
 as aforesaid, to make an order vesting the right to transfer such stock, 
 or to receive the dividends or income thereof, or to sue for and recover 
 such chose in action or any interest in respect thereof, in any person or 
 persons he may appoint. 
 
 VII. And be it enacted, that where any infant shall be seised or pos- 
 sessed of any lauds upon any trust, or by way of mortgage, it shall be 
 
 (i) Under this section (and it is conceived that the same principle applies to 
 the 4th and 5th sections,) if the lunatic be a trustee, the trust estate or the cestui 
 que trust must bear the costs of the proceedings under the act. If he be a mort- 
 gagee, the costs -n-ill, as a general rule (though this result is contrary to principle,) 
 come out of the lunatic's estate. Re Wheeler, 1 De Gex, Mac. & Gor. 436. But 
 where, on the face of the mortgage deed, the lunatic mortgagee is a trustee for a 
 third party, the costs must fall on the mortgagor. Re Lewes, 1 Mac. & Gor. 23. 
 Seeus, if the mortgagor have no notice of the fict that the lunatic is a trustee. Re 
 Townsend, 1 Mac. & Gor. 686. And see under 1 W. 4, c. 60, Re Townsend, 2 
 Phil. 348, and cases there cited.
 
 Q^S LEAVIN ON THE LAW OF TRUSTS, ETC. 
 
 lawful for the Court of Chancery to make an order vesting such lands in 
 such person or persons in such manner and for such estate as the said 
 court shall direct ;(A-) and the order shall have the same *effect 
 [=^■885] ^g j^ ^i^g infant trustee or mortgagee had been twenty-one years 
 of ap-e, and had duly executed a conveyance or assignment of the lands 
 in the same manner for the same estate. (?) 
 
 VIII. And be it enacted, that where any infant shall be entitled to 
 any contingent right in any lands upon any trust or by way of mortgage, 
 it shall be lawful for the Court of Chancery to make an order wholly re- 
 leasing such land from such contingent right, or disposing of the same 
 to such person or persons as the said court shall direct ; and the order 
 shall have the same effect as if the infant had been twenty-one years of 
 age, and had duly executed a deed so releasing or disposing of the con- 
 tingent right. 
 
 IX. And be it enacted, that when any person solely seised or pos- 
 sessed of any lands upon any trust(??i) shall be out of the jurisdiction of 
 the Court of Chancery, or cannot be found, it shall be lawful for the said 
 court to make an order vesting such lands in such person or persons in 
 such manner and for such estate as the said court shall direct ; and the 
 order shall have the same effect as if the trustee had duly executed a 
 conveyance or assignment of the lands in the same manner and for the 
 same estate. 
 
 X. And be it enacted, that when any person or persons shall be seised 
 or possessed of any lands jointly with a person out of the jurisdiction of 
 the Court of Chancery, or who cannot be found, it shall be lawful for the 
 said court to make an order vesting the lands in the person or persons so 
 jointly seised or possessed, or in such last-mentioned person or persons 
 together with any other person or persons, in such manner and for such 
 estate as the said court shall direct ; and the order shall have the same 
 effect as if the trustee out of the jurisdiction, or who cannot be found, 
 had duly executed a conveyance or assignment of the lands in the same 
 manner for the same estate. (h) 
 
 
 [*886] 
 
 XI. And be it enacted, that when any person solely entitled 
 to a ^contingent right in any lands upon any trust shall be out 
 
 (k) It is now settled, notwithstanding the doubts entertained at first (see Re 
 Howard's Estate, 5 De Gex & Sm. 435,)'that the court will make an order, vesting 
 an estate on a purchase to the uses commonly called the uses to bar dower ; but 
 will not incorporate a declaration that no woman shall be entitled to dower, this 
 being no part of the couveyance. The woman, therefore (if married on or before 
 Jan. 1, 1834,) would be entitled to dower. Re Lush's Estate, 5 De Gex & Sm. 
 435 ; Davey v. Miller, 17 Jur. 908. So an order has been made to rest the legal 
 estate in the devisees of a mortgagor, subject to a charge created by his will. Re 
 Ellerthorpe, 18 Jur. 6G9. 
 
 (l) Tenant for life with remainder to an infant in tail. A vesting order as to 
 the estate of the infant, with the consent of the tenant for life, will bar the entail 
 and remainders over. Powell v. Matthews, 1 Jur. N. S. 973. See the Interpreta- 
 tion Clause as to the words " Convey," and " Conveyance." 
 
 (to) An heir who takes the trust estate by the disclaimer of the trustees, is a 
 trustee within the section; Wilks v. Groom, 6 De Gex, M. & G. 205. 
 
 (n) As to the doubts entertained respecting the effect of the concluding words 
 of this section and their solution, see Re Watt's Settlement, 9 Hare, 106 ; Flyer's 
 Trust, ib. p. 220 ; Smith v. Smith, 3 Drewrv, 72.
 
 TRUSTEE ACT, 185 0. 689 
 
 of the jurisdiction of the Court of Chancery, or cannot be found, it shall 
 be lawful for the said court to make an order wholly releasing such lands 
 from such contingent right, or disposing of the same to such person or 
 persons as the said court shall direct ; and the order shall have the same 
 effect as if the trustee had duly executed a conveyance so releasing or 
 disposing of the contingent right. 
 
 XII. And be it enacted, that when any person jointly entitled with 
 any other person or persons to a contingent right in any lands upon any 
 trust shall be out of the jurisdiction of the Court of Chancery or can- 
 not be found, it shall be lawful for the said court to make an order dis- 
 posing of the contingent right of the person out of the jurisdiction, or 
 who cannot be found, to the person or persons so jointly entitled as afore- 
 said, or to such last-mentioned person or persons together with any other 
 person or persons; and the order shall have the same effect as if the 
 trustee out of the jurisdiction, or who cannot be found, had duly exe- 
 cuted a conveyance so releasing or disposing of the contingent right. 
 
 XIII. And be it enacted, that where there shall have been two or 
 more persons jointly seised or possessed of any lands upon any trust, 
 and it shall be uncertain which of such trustees was the survivor, it shall 
 be lawful for the Court of Chancery to make an order vesting such lands 
 in such person or persons in such manner and for such estate as the said 
 court shall direct ; and the order shall have the same effect as if the sur- 
 vivor of such trustees had duly executed a conveyance or assignment of 
 the lands in the same manner for the same estate. 
 
 XIV. And be it enacted, that where any one or more person or per- 
 sons shall have been seised or possessed of any lands upon any trust, 
 and it shall not be known, as to the trustee last known to have been 
 seised or possessed, whether he be living or dead, it shall be lawful for 
 the Court of Chancery to make an order vesting such lands in such per- 
 son or persons in such manner and for such estate as the said court shall 
 direct ; and the order shall have the same effect as if the last trustee had 
 duly executed a conveyance or assignment of the lands in the same man- 
 ner for the same estate. 
 
 XV. And be it enacted, that when any person seised of any lands 
 upon any trust shall have died intestate as to such lands without an heir, 
 or shall have died and it shall not be known who is his heir or devisee, 
 it shall be lawful for the Court of Chancery to make an order vesting 
 such lands in such person or persons in such manner and for *such r^gg-j-i 
 estate as the said court shall direct ; and the order shall have L J 
 the same effect as if the heir or devisee of such trustee had duly exe- 
 cuted a conveyance of the lands in the same manner for the same 
 estate. 
 
 XVI. And be it enacted, that when any lands are subject to a con- 
 tingent right in an unborn person or class of unborn persons who upon 
 coming into existence would in respect thereof become seised or possessed 
 of such lands upon any trust, it shall be lawful for the Court of Chan- 
 cery to make an order which shall wholly release and discharge such lands 
 from such contingent right in such unborn person or class of unborn per- 
 sons, or to make an order which shall vest iu any person or persons the
 
 690 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 \ 
 
 estate or estates which such unborn person or class of unborn persons 
 would upon coming into existence be seised or possessed of in such lands. 
 
 XVII. And be it enacted, that where any person jointly or solely 
 seised or possessed of any lands upon any trust shall, after a demand by 
 a person entitled to require a conveyance or assignment of such lands, 
 or a duly authorized agent of such last-mentioned persons, have stated 
 in writing that he will not convey or assign the same, or shall neglect or 
 refuse to convey or assign such lands for the space of twenty-eight days 
 next after a proper deed for conveying or assigning the same shall have 
 been tendered to him by any person entitled to require the same, or by 
 a duly authorized agent of such last-mentioned person, it shall be lawful 
 for the Court of Chancery to make an order vesting such lands in such 
 person or persons in such manner and for such estate as the said court 
 shall direct; and the order shall have the same effect as if the trustee 
 had duly executed a conveyance or assignment of the lands in the same 
 manner for the same estate. (o) 
 
 XVIII. And be it enacted, that where any person jointly or solely 
 entitled to a contingent right in any lands upon any trust shall, after a 
 demand for a conveyance or release of such contingent right by a person 
 entitled to require the same, or a duly authorized agent of such last- 
 mentioned person, have stated in writing that he will not convey or 
 release such contingent right, or shall neglect or refuse to convey or 
 release such contingent right for the space of twenty-eight days next 
 after a proper deed for conveying or releasing the same shall have been 
 tendered to him by any person entitled to require the same, or by a duly 
 P^oQQ-i authorized agent of such last-mentioned person, *it shall be law- 
 L -J ful for the Court of Chancery to make an order releasing or dis- 
 posing of such contingent right in such manner as it shall direct; and 
 the order shall have the same effect as if the trustee so neglecting or 
 refusing had duly executed a conveyance so releasing or disposing of the 
 contingent right. 
 
 XIX. And be it enacted, that when any person to whom any lands 
 have been conveyed by way of mortgage shall have died without having 
 entered into the possession or into the receipt of the rents and profits 
 thereof, and the money due in respect of such mortgage shall have been 
 paid to a person entitled to receive the same, or such last-mentioned 
 person shall consent to an order for the reconveyance of such lands, (^) 
 then in any of the following cases it shall be lawful for the Court of 
 Chancery to make an order vesting such lands in such person or persons 
 in such manner and for such estate as the said court shall direct; that is 
 to say, 
 
 (o) This and the following section have been repealed by the Extension Act 
 (see sect 2,) and a simpler enactment dependent on " demand" and on " refusal, or 
 neglect," substituted. 
 
 (;)) The personal representative of a mortgagee who has not taken possession 
 may obtain an order vesting the legal estate, which has descended to the heir, in 
 him, notwithstanding the word " reconveyance" points in strictness to a convey- 
 ance to the mortgagor. Re Boden's Trust, 1 De Gex, Mac. & Gor. 57 ; 9 Hare, 
 820; overruling Meyrick's Estate, 9 Hare, 116.
 
 TRUSTEE ACT, 1S5 0. 691 
 
 When an heir or devisee(j) of such mortgagee shall be out of the 
 
 jurisdiction of the Court of Chancery,(r) or cannot be found : 
 When an heir or devisee of such mortgagee shall, upon a demand by 
 a person entitled to require a conveyance of such lands or a duly 
 authorized agent of such last-mentioned person, have stated in writ- 
 ing that he will not convey the same, or shall not convey the same 
 for the space of twenty-eight days next after a proper deed for con- 
 veying such lands shall have been tendered to him by a person 
 entitled as aforesaid,(s) or a duly authorized agent of such last- 
 mentioned person : 
 Wlien it shall be uncertain which of several devisees of such mortgagee 
 
 was -the survivor : 
 When it shall be uncertain as to the survivor of several devisees of 
 such mortgagee, or as to the heir of such mortgagee whether he be 
 living or dead : 
 When such mortgagee shall have died intestate as to such lands, and 
 without an heir, or shall have died and it shall not be known who 
 is his heir or devisee : 
 *And the order of the said Court of Chancery made in any one r^ggg-i 
 of the foregoing cases shall have the same effect as if the heir or L J 
 devisee or surviving devisee, as the case may be, had duly executed a 
 conveyance or assignment of the lands in the same manner and for the 
 same estate. 
 
 XX. And be it enacted, that in every case where the lord chancellor, 
 intrusted as aforesaid, or the Court of Chancery, shall, under the provi- 
 sions of this act, be enabled to make an order having the effect of a con- 
 veyance or assignment of any lands, or having the effect of a release or 
 disposition of the contingent right of any person or persons, born or un- 
 born, it shall also be lawful for the lord chancellor, intrusted as aforesaid, 
 or the Court of Chancery, as the case may be, should it be deemed more 
 convenient, to make an order appointing a person to convey or assign 
 such lands, or release or dispose of such contingent right ; and the con- 
 veyance or assignment, or release or disposition, of the person so ap- 
 pointed,(;) shall, when in conformity with the terms of the order by 
 which he is appointed, have the same effect, in conveying or assigning 
 the lands, or releasing or disposing of the contingent right, as an order 
 
 (5) See the interpetation clause, giving an extended meaning to the word 
 
 {r) See Hutchinson v. Stephens, 5 Sim. 498 ; Ex parte Dover, lb. 500, decided 
 on the 1 W. 4, c. 60. 
 
 («) See note (c), p. 837, for the decisions on the 8th section of the 1 W. 4, c. 
 60, the words of which are nearly the same. As to the instrument to be tendered 
 in the case of copyholds, see Rowley v. Adams, 14 Beav. 130, where the question 
 arose upon the 17th section, since repealed. 
 
 {t) The conveyance should contain a recital showing that it is made in obedi- 
 ence to the order of the court, and should be executed by the person appointed to 
 convey in his own name ; though the late vice-chancellor of England, in a case 
 arising upon the 1 W. 4, c. 60, seems to have considered that the execution, by 
 the person appointed to convey, of a deed purporting to be the conveyance of the 
 trustee who refused, would, with a mere reference in the attestation clause to the 
 order appointing the person to convey, be sufficient. Ex parte Foley, 8 Sim. 395.
 
 692 
 
 LEWIN ON THE LAW OF TKUSTS, ETC. 
 
 of the lord chancellor, intrusted as aforesaid, or the Court of Chancery, 
 would in the particular case have had under the provisions of this act ; 
 and in every case where the lord chancellor, intrusted as aforesaid, or 
 the Court of Chancery, shall, under the provisions of this act, be enabled 
 to make an order vesting in any person or persons the right to transfer 
 any stock transferable in the books of the Governor and Company of the 
 Bank of England, or of any other company or society established or to 
 be established, it shall also be lawful for the lord chancellor, intrusted as 
 aforesaid, or the Court of Chancery, if it be deemed more convenient, to 
 make an order directing the secretary, deputy secretary, or aecountant- 
 o-eneral for the time being of the Grovernor and Company of the Bank of 
 England, or any officer of such other company or society, at once to 
 transfer or join in transferring the stock to the person or persons to be 
 named in the order; and this act shall be a full and complete indemnity 
 and discharge to the Governor and Company of the Bank of England, 
 and all other companies or societies, and their officers and servants, for 
 all acts done or permitted to be done pursuant thereto. 
 
 *XXI. And be it enacted, that as to any lands situated within 
 L J the duchy of Lancaster or the counties palatine of Lancaster or 
 Durham, it shall be lawful for the court of the Duchy Chamber of Lan- 
 caster, the Court of Chancery in the county palatine of Lancaster, or the 
 Court of Chancery in the county palatine of Durham, to make a like 
 order in the same cases as to any lands within the jurisdiction of the 
 same courts respectively as the Court of Chancery has under the provi- 
 sions hereinbefore contained been enabled to make concerning any lands; 
 and every such order of the court of the Duchy Chamber of Lancaster, 
 the Court of Chancery in the county palatine of Lancaster, or the Court 
 of Chancery in the county palatine of Durham, shall, as to such lands, 
 have the same effect as an order of the Court of Chancery : provided 
 always, that no person who is anywhere within the limits of the jurisdic- 
 tion of the High Court of Chancery shall be deemed by such local 
 courts to be an absent trustee or mortjrasee within the meaning of this 
 
 "CO 
 
 act. 
 
 XXII. And be it enacted, that when any person or persons shall be 
 jointly entitled with any person out of the jurisdiction of the Court of 
 Chancery,r») or who cannot be found, or concerning whom it shall be 
 uncertain whether he be living or dead, to any stock or chose in action 
 upon any trust,r?;) it shall be lawful for the said court(H') to make an 
 order vesting the right to transfer such stock, or to receive the dividends 
 or income thereof, or to sue for or recover such chose in action, or any 
 
 («) Where the trustee out of the jurisdiction is incapacitated from lunacy or 
 infancy, the power of the court must be sought for in the sections applicable to 
 cases of lunatics and infents, and not in this section. Consequentl}', in a case 
 arising before the Extension Act (see 3rd section,) the court had no authority to 
 make a vesting order with respect to stock held by an infant trustee out of the 
 jurisdiction. Cramer v. Cramer, 5 De Gex & Sm. 312. 
 
 (v) The husband of an executrix is a trustee within the act. Ex parte Brad- 
 shaw, 2 De Gex, Mac. & Gor. 900. 
 
 (w) If the court be asked to transfer the stock to new trustees appointed under 
 a power, it must first be satisfied of the fitness of the persons proposed, and all 
 parties interested must be served. Re Maynard's Settlement, 16 Jur. 1084.
 
 TRUSTEE ACT, 1S5 0. 693 
 
 interest in respect thereof, either in such person or persons so jointly 
 entitled as aforesaid, or in such last-mentioned person or persons together 
 with any person or persons the said court may appoint; and when any 
 sole trustee(j;) of any stock or chose in action shall be out of the jurisdic- 
 tion of the said court, or cannot be found, or it shall be uncertain whether 
 he be living or dead, it shall be lawful for the said court to make an 
 order vesting the right to transfer such stock, or to receive the dividends 
 or income thereof, or *to sue for and recover such chose in ac- r^ogi-i 
 tion, or any interest in respect thereof, in any person or persons L J 
 the said court may appoint. 
 
 XXIII. And be it enacted, that where any sole trustee(y) of any stock 
 or chose in action shall neglect or refuse to transfer such stock, or to 
 receive the dividends or income thereof, or to sue for or recover such 
 chose in action, or any interest in respect thereof, according to the direc- 
 tion of the person absolutely entitled thereto, (..) for the space of twenty- 
 eight days next after a request in writing(a) for that purpose shall have 
 been made to him by the person absolutely entitled thereto, it shall be 
 lawful for the Court of Chancery to make an order vesting the sole right 
 to transfer such stock, or to receive the dividends or income thereof,(6) 
 or to sue for and recover such chose in action, or any interest in respect 
 thereof, in such person or persons as the said court may appoint. (c) 
 
 XXIV. And be it enacted, that where any one of the trustees of any 
 stock or chose in action shall neglect or refuse to transfer such stock, or 
 to receive the dividends or income thereof, or to sue for or recover such 
 chose in action according to the directions of the person absolutely entitled 
 thereto, for the space of twenty-eight days next after a request in writing 
 for that purpose shall have been made to him or her by such person, it 
 shall be lawful for the Court of Chancery to make an order vesting the 
 right to transfer such stock, or to receive the dividends or income thereof, 
 or to sue for and recover such chose in action, in the other trustee or 
 trustees of the said stock or chose in action, or in any person or persons 
 whom the said courtmayappoint jointly with such other trusteeor trustees. 
 
 (z) A. and B. being trustees, the master found that it was uncertain whether 
 A. was living or dead, but that B. was living. Afterwards B. died. Held, that A. 
 was not a sole trustee within the meaning of the 22nd section. Re Randall's Will. 
 1 Drewry, 401. 
 
 {y) Sole trustee may mean the whole number of the co-trustees. See interpre- 
 tation clause. Re Hartnall, 5 De Gex & Sm. 111. 
 
 (z) A tenant for life is not a person absolutely entitled within the meaning of the 
 act, except, perhaps, for the purpose of an application limited to the income only, 
 nor is one of two trustees ; Mackenzie v. Mackenzie, 5 De Gex & Sm. 338 ; more 
 fully reported 16 Jur. 723. But persons duly appointed new trustees are " abso- 
 lutely entitled;" Ex parte Russell, 1 Sim. N. S. 404 ; Baxter's Will, 2 Sm. & GifiF. 
 Append, v. 
 
 (a) The case of a trustee refusing to obey the order of the court was not within 
 this section ; Mackenzie v. Mackenzie, 5 De Gex & Sm. 338. And so it was 
 under 1 W. 4, c. 60 ; see note (a), p. 839. But see now sect. 4 of the Extension 
 Act providing for this case. 
 
 (b) The court cannot, under this section, make any order as to dividends 
 accrued due subsequently to the date of request. Re Hartnall, 5 De Gex & Sm. 
 111. See now sect. 4 of Extension Act. 
 
 (c) The recusant trustee need not be served under this and the following sec- 
 tion. Baxter's Will, 2 Sm. & Giff. A pp. v. : and see cases under 1 W. 4, c. 60, 
 note (c), p. 837.
 
 (394 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 XXV. And be it enacted, that when any stock shall be standing in 
 the sole name of a deceased person, and his or her personal representative 
 shall be out of the jurisdiction of the Court of Chancery, or cannot be 
 
 found, or it shall be uncertain whether such personal *represen- 
 [=^89--] ^j^jj^g ^Q living or dead, or such personal representative shall 
 neo'lect or refuse to transfer such stock, or receive the dividends or income 
 thereof, according to the direction of the person absolutely entitled 
 thereto, for the space of twenty-eight days next after a request in writing 
 for that purpose shall have been made to him by the person entitled as 
 aforesaid, it shall be lawful for the Court of Chancery to make an order 
 vesting the right to transfer such stock, or to receive the dividends or 
 income thereof, in any person or persons whom the said court may ap- 
 point. 
 
 XXVI. And be it enacted, that where any order shall have been made 
 under any of the provisions of this act vesting the right(c?) to any stock 
 in any person or persons appointed by the lord chancellor, instructed as 
 aforesaid, or the Court of Chancery, such legal right shall vest accord- 
 ingly, and thereupon the person or persons so appointed are hereby 
 authorized and empowered to execute all deeds and powers of attorney, 
 and to perform all acts relating to the transfer of such stock into his or 
 their own name or names or otherwise, or relating to the receipt of the 
 dividends thereof, to the extent and in conformity with the terms of such 
 order; and the Bank of England, and all companies and associations 
 whatever, and all persons, shall be equally bound and compellable to 
 comply with the requisitions of such person or persons, so appointed as 
 aforesaid, to the extent and in conformity with the terms of such order 
 as the said Bank of England, or such companies, associations or persons, 
 would have been bound and compellable to comply with the requisitions 
 of the person in whose place such appointment shall have been made, 
 and shall be equally indemnified in complying with the requisition of 
 such person or persons so appointed as they would have been indemnified 
 in complying with the requisition of the person in whose place such 
 appointment shall have been made ; and after notice in writing of any 
 such order of the lord chancellor, intrusted as aforesaid, or of the Court 
 of Chancery, concerning any stock, shall have been given, it shall not be 
 lawful for the Bank of England, or any company or association whatever, 
 or any person having received such notice, to act upon the requisition of 
 the person in whose place an appointment shall have been made in any 
 matter whatever relating to the transfer of such stock, or the payment of 
 the dividends or produce thereof. 
 
 XXVII. And be it enacted, that where any order shall have been 
 made under the provisions of this act, either by the lord chancellor, 
 P8931 ^^'^^^s^'Sd as aforesaid, or by the Court of Chancery, vesting the 
 
 J legal right to sue for or recover any chose in action or any inte- 
 rest in respect thereof in any person or persons, such legal right shall 
 vest accordingly, and thereupon it shall be lawful for the person or per- 
 sons so appointed to carry on, commence and prosecute, in his or their 
 
 {(1) See note (s), p. 89G, infra, and sect. 6 of the Extension Act.
 
 TRUSTEE ACT, 1S5 0. 695 
 
 own name or names, any action, suit or other proceeding at law or in 
 equity for the recovery of such chose in action, in the same manner in 
 all respects as the person in whose place an appointment shall have been 
 made could have sued for or recovered such chose in action. 
 
 XXVIII. And be it enacted, that whensoever, under any of the pro- 
 visions of this act, an order shall be made, either by the lord chancellor, 
 intrusted as aforesaid, or the Court of Chancery, vesting any copyhold or 
 customary lands in any person or persons, and such order shall be made 
 with the consent^?) of the lord or lady of the manor whereof such lauds 
 are holden, then the lands shall, without any surrender or admittance in 
 respect thereof, vest accordingly • and whenever, under any of the pro- 
 visions of this act, an order shall be made either by the lord chancellor, 
 intrusted as aforesaid, or the Court of Chancery, appointing any person 
 or persons to convey or assign any copyhold or customary lands, it shall 
 be lawful for such person or persons to do all acts and execute all instru- 
 ments for the purpose of completing the assurance of such lands ;(/) 
 and all such acts and instruments so done and executed shall have the 
 same effect, and every lord and lady of a manor, and every other person, 
 shall, subject to the customs of the manor and the usual payments, be 
 equally bound and compellable to make admittance to such lands, and to 
 do all other acts for the purpose of completing the assurance thereof, as 
 if the persons in whose place an appointment shall have been made, being 
 free from any disability, had duly done and executed such acts and instru- 
 ments. 
 
 XXIX. And be it enacted, that when a decree shall have been made 
 by any court of equity directing the sale of any lands for the payment of 
 the debts((7) of a deceased person, every person seised or possessed of 
 such lands, or entitled to a contingent right therein, as heir, or r,^nQj^T 
 *under the will of such deceased debtor, shall be deemed to be L J 
 so seised or possessed or entitled, as the case may be, upon a trust within 
 the meaning of this act ; and the Court of Chancery is hereby empowered 
 to make an order wholly discharging the contingent right, under the 
 will of such deceased debtor, of any unborn person. (/t) 
 
 XXX. And be it enacted, that where any decree shall be made by any 
 court of equity for the specific performance of a contract concerning any 
 lands, (i) or for the partition (7^:) or exchange of any lands, or generally 
 when any decree shall be made for the conveyance or assignment of any 
 
 (e) There appears to be a conflict between the practice in the different branches 
 of the court upon the question -whether a vesting order will be made without the 
 lord's consent, '^ valeat quantum;" see Re Flitcroft, 1 Jur. N. S. 418, cor. V. C. 
 Wood ; Cooper v. Jones, 2 Jur. N. S. 59, cor. V. C. Stuart. The consent need not 
 be by appearance in court ; Ayles v. Cox, 17 Beav. 585. 
 
 (/) See form of order appointing a person to complete the assurance of a copy- 
 hold estate. Re Hey's Will, 9 Hare, 221. 
 
 {g) A sale for payment of costs of suit was not within this act : Weston v. Filer, 
 5 De Gex & Sm. 608. But see now sect. 1 of the Extension Act, and Walie v. 
 Wake, 17 Jur. 545. 
 
 {h) Wood V. Beetlestone, 1 Kay & John. 213. 
 
 {i) See Ex parte Mornington, 4 De Gex, Mac. & Gor. 537. 
 
 {k) In a partition suit, instead of giving an infant entitled to a share a day to 
 show cause, the court may declare him a trustee of such parts of the property as 
 are allotted to other parties. Bowra v. Wright, 4 De Gex & Sm. 265.
 
 696 
 
 LEWIN ON THE LAW OF TKUSTS, ETC. 
 
 I 
 
 lands,(A either in cases arising out of the doctrine of election or other- 
 wise, 'it shall be lawful for the said court to declare that any of the parties 
 to the said suit wherein such decree is made are trustees of such lands 
 or any part thereof, within the meaning of this act, or to declare con- 
 cerning the interests of unborn persons who might claim under any party 
 to the said suit, or under the will or voluntary settlement of any person 
 deceased who was during his lifetime a party to the contract or transac- 
 tions concerning which such decree is made, that such intersts of unborn 
 persons are the interests of persons who, upon coming into existence, 
 would be trustees within the meaning of this act, and thereupon it shall 
 be lawful for the lord chancellor, intrusted as aforesaid, or the Court of 
 Chancery, as the case may be, to make such order or orders as to the 
 estates, rights and interests of such persons, born or unborn, as the said 
 court or the said lord chancellor might under the provisions of this act 
 make concerning the estates, rights and interests of trustees born or 
 unborn. 
 
 XXXI. And be it enacted, that it shall be lawful for the lord chan- 
 cellor, intrusted as aforesaid, or the Court of Chancery, to make declara- 
 tions and give directions concerning the manner in which the right to 
 any stock or chose in action vested under the provisions of this act shall 
 be exercised ; and thereupon the person or persons in whom such right 
 r*SQfSn ^^^^^ ^® vested shall be compellable to obey such *directionsand 
 L J declarations by the same process as that by which other orders 
 under this act are enforced. 
 
 XXXII. And be it enacted, that whenever it shall be expedicnt(m) 
 to appoint(?i) a new trustee or new trustees, and it shall be found inex- 
 pedient, difficult(o) or impracticable so to do without the assistance of 
 the Court of Chancery, it shall be lawful for the said Court of Chancery 
 to make an order appointing a new trustee or new trustees, either in 
 substitution for or in addition to any existing trustee or trustees. Qj) 
 
 (Z) Tn a foreclosure suit by an equitable mortgagee, a decree had been made 
 for pa3'ment, or, in default, for foreclosure and conveyance by the viortgagor of the 
 legal estate. The mortgagor made default. The court refused, on motion to make 
 the order of foreclosure absolute, to add a declaration that the mortgagor was a 
 trustee for the mortgagee, and said that a separate application must be made ; 
 Smith V. Boucher, 1 Sm. & Giff. 72. As to the necessity for an express declara- 
 ration in terms, see the cases on sect. 18 of the 1 W. 4, c. 60 ; note (/), p. 839, 
 supra. 
 
 {m) If one of the tn;stees be a lunatic, so that the estate cannot be got from 
 him without the aid of the court, though there is a po\ver of appointment of new 
 trustees, in such a case the court will appoint a new trustee and make the vest- 
 ing order. Re Davies, 3 Mac. & Gor. 278. So where one of the two trustees 
 appointed by a will is an infant, the court deems it expedient to appoint a trustee 
 in his place. Re Porter's Trust, 2 Jur. N. S. 349. 
 
 [n) The court cannot, under the act, remove a trustee who is willing to act. Re 
 Hodson's Settlement, 9 Hare, 118 ; Re Hadley, 5 De Gex & Sm. 67. And in a 
 case where one of two trustees was residing out of the jurisdiction, but it did not 
 appear whether such residence was likely to be permanent, the court refused to 
 appoint a new trustee in his room. Re Mais, 16 Jur. 608. 
 
 (o) See Re Humphry's Estate, 1 Jur. N. S. 921, where the parties having the 
 power of appointing new trustees were resident in India. 
 
 {p) The decisions were in conflict whether under this section the court could 
 appoint new trustees in a case where there was no existing trustee. Vice Chancel- 
 lor Parker holding the affirmative ; Re Tvler's Trust, 5 De Gex & Sm. 56 ; and
 
 TRUSTEE ACT, 185 0. 697 
 
 XXXIII. And be it enacted, that the person or persons who, upon 
 the making of such order as last aforesaid, shall be trustee or trustees, 
 shall have all the same rights and powers as he or they would have had 
 if appointed by decree in a suit duly instituted. 
 
 XXXIV. And be it enacted, that it shall be lawful(5') for the said 
 Court of Chancery, upon making any order for appointing a new trustee 
 or new trustees, eit^ier by the same or by any subsequent order, to direct 
 that any lands subject to the trust shall vest in the person or persons 
 who upon the appointment shall be the trustee or trustees, for such 
 estate as the court shall direct ; and such order *shall have the r*onr-| 
 same effect as if the person or persons who before such order L J 
 were the trustee or trustees (if a^ny) had duly executed all proper con- 
 veyances and assignments of such lands for such estate. (r) 
 
 XXXV. And be it enacted, that it shall be lawful for the said Court 
 of Chancery, upon making any order for appointing a new trustee or new 
 trustees, either by the same or by any subsequent order, to vest the 
 right to call for a transfer of any stock(*) subject to the trust, or to 
 receive the dividends or income thereof, or to sue for or recover any 
 chose in action, subject to the trust, or any interest in respect thereof, 
 in the person or persons who upon the appointment shall be the trustee 
 or trustees. 
 
 XXXVI. And be it enacted, that any such appointment by the court 
 of new trustees, and any such conveyance, assignment, or transfer as 
 aforesaid, shall operate no further or otherwise as a discharge to any 
 former or continuing trustee than an appointment of new trustees 
 
 Vice Chancellor Turner the negative ; Re Hazeldine, 16 Jur. 853. And see Re 
 Frosts Settlement, 15 Jur. 644. All doubt for the future was removed by the 9th 
 section of the Extension Act. 
 
 The court, in appointing new trustees under this section, does not limit itself 
 necessarily to the number named in the original instrument of trust. Thus it has 
 appointed two instead of one ; Tunstall's AVill, 4 De Gex & Sm. 421. But it never 
 appoints a single trustee where there were originally more than one ; Ellison's 
 Trust, 2 Jur. N. S. 62 ; Porter's Trust, 2 Jur. N. S. 349. 
 
 As to the parties to be served, see note (v), p. 897, infra. 
 
 In addition to evidence of the necessary facts to bring the case within the act, 
 the court, before appointing trustees, requires evidence by affidavit of the fitness 
 of the proposed trustees, and a written consent by the trustees to act ; Battersby's 
 Trust, 16 Jur. 900. The trust property having greatly increased, the court, upon 
 an application under the act, appointed two additional trustees, though the instru- 
 ment of trust provided for two only. Boycott's Settlement, 5 Weekly Rep. 15. 
 
 {q) The late Vice Chancellor Parker was indisposed to make a vesting order in 
 cases where a conveyance could be had ; Langhorn v. Langhorn, 21 L. J. Ch. 860. 
 But it is clear that the court has power to make, and according to the present 
 practice it frequently does make, vesting orders, even where there is no incaj^acity 
 in the person seised or possessed of the legal estate to convey to the new trustees ; 
 Re Manning's Trust, Kay, App. xxviii. 
 
 (r) The court has jurisdiction to divest the whole estate from the continuing 
 and incapacitated trustee, and to vest it in the new body of trustees (including the 
 continuing trustees,) as joint tenants ; Smith v. Smith, 3 Drewry, T2, overruling 
 Re Watt's Settlement, 9 Hare, 106 ; Re Plyer, ib. 220. 
 
 (s) The court had no power under this section to vest the right to the stock 
 itself, but only the right to call for a transfer; and an order professing to vest the 
 right to the stock was accordingly discharged. Be Smyth's Settlement, 4 De Gex 
 & Sm. 499. But see now sect. 6 of the Extension Act. 
 
 May, 1858.— 45
 
 698 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 under any power for that purpose contained in any instrument would 
 
 have done. 
 
 XXXVII. And be it enacted, that an order, under any of the here- 
 inbefore contained provisions, for the appointment of a new trustee or 
 trustees, or concerning any lands, stock, or chose in action subject to a 
 trust, may be made upon the application of any person beneficially inter- 
 ested in such lands, stock, or chose in action, whether under disability 
 or not, or upon the application of any person duly appointed as a trustee 
 thereof ;(?) and that an order under any of the provisions hereinbefore 
 contained concerning any lands, stock, or chose in action subject to a 
 mortgage, may be made on the application of any person beneficially 
 interested in the equity of redemption, whether under disability or not, 
 or of any person interested in the moneys secured by such mortgage. 
 
 XXXVIII. And be it enacted, that when any person shall deem him- 
 self entitled to an order under any of the provisions hereinbefore con- 
 tained,, either from the lord chancellor, intrusted as aforesaid, or from 
 
 -^ the Court of Chancery, it shall be lawful for him to exhibit 
 L J *before any one of the masters of the High Court of Chancery a 
 statement of the facts whereon such order is sought to be obtained, and 
 adduce evidence in support thereof; and if such evidence shall be satis- 
 factory to the said master, he shall, at the request of the person adducing 
 such evidence, give a certificate under his hand of the several material 
 facts found by him to be true, and of his opinion that such person is 
 entitled to an order in the form set forth in such certificate. (?<) 
 
 XXXIX. And be it enacted, that any person who shall have obtained 
 such certificate may apply by motion to the Court of Chancery, or to the 
 lord chancellor intrusted as aforesaid, for an order to the eff"ect set forth 
 in such certificate, or for such other order as such person may deem him- 
 self entitled to upon the facts found by the master. 
 
 XL. And be it enacted, that any person or persons entitled in manner 
 aforesaid to apply for an order from the said Court of Chancery, or from 
 the lord chancellor intrusted as aforesaid, may, should he so think fit, 
 present a petition in the first instance to the Court of Chancery, or to 
 the lord chancellor intrusted as aforesaid, for such order as he may deem 
 himself entitled to, and may give evidence by affidavit or otherwise in 
 support of such petition before the said court, or the lord chancellor 
 intrusted as aforesaid, and may serve such person or persons with notice 
 of such petition as he may deem entitled to service thereof.(i;) 
 
 XLI. And be it enacted, that upon the hearing of any such motion 
 or petition it shall be lawful for the said court, or for the said lord chan- 
 cellor, should it be deemed necessary, to direct a reference to one of the 
 
 (t) As to the proper persoa to petition in the case of sales by the court, see 
 Rowley v. Adams, 14 Beav. 130 ; Ayles v. Cox, 17 Beav. 584. 
 
 («) This and the following section have ceased to be of any use since the abo- 
 lition of the office of master. 
 
 (i) In petitions for the appointment of new trustees, all the cestuis que trust 
 ought, as a general rule, to be served. Re Richards' Trust, 5 De Gex & Sm. 636 ; Re 
 Sloper, 18 Beav. 596; Re Fellows' Settlement, 2 Jur. N. S. 62. And the old trus- 
 tees (if any) must appear ; Re Sloper, ubi supra. But in special cases the court 
 relaxes the rule. Re Symth's Settlement, 2 De Gex & Sm. V81.
 
 TRUSTEE ACT, 185 0. 699 
 
 masters in ordinary of the Court of Chancery to inquire into any facts 
 which require such an investigation, or it shall be lawful for the said 
 court, or for the said lord chancellor to direct such motion or petition to 
 stand over, to enable the petitioner or petitioners to adduce evidence or 
 further evidence before the said court, or before the said lord chan- 
 cellor, or to enable notice or any further notice of such motion or peti- 
 tion to be served upon any person or persons. 
 
 XLII. And be it enacted, that upon the hearing of any such motion 
 *or petition, whether any certificate or report from a master shall r^ggg-i 
 have been obtained or not, it shall be lawful for the court, or the •- J 
 lord chancellor, intrusted as aforesaid, to dismiss such motion or petition, 
 with or without costs, or to make an order thereupon in conformity with 
 the provisions of this act. 
 
 XLIII. And be it enacted, that whensoever in any cause or matter, 
 either by the evidence adduced therein, or by the admissions of the par- 
 ties, or by a report of one of the masters of the Court of Chancery, the 
 facts necessary for an order under this act shall appear to such court 
 to be sufficiently proved, it shall be lawful for the said court, either 
 upon the hearing of the said cause or of any petition or motion in the 
 said cause or matter, to make such order under this act.(Mj) 
 
 XLIV. And be it enacted, that whenever atiy order shall be made 
 under this act, either by the lord chancellor intrusted as aforesaid, or by 
 the Court of Chancery, for the purpose of conveying or assigning any 
 lands, or for the purpose of releasing or disposing of any contingent 
 right, and such order shall be founded on an allegation of the personal 
 incapacity of a trustee or mortgagee, or on an allegation that a trustee or 
 the heir or devisee of a mortgagee is out of the jurisdiction of the Court 
 of Chancery or cannot be found, or that it is uncertain which of several 
 trustees, or which of several devisees of a mortgagee, was the survivor, 
 or whether the last trustee, or the heir or last surviving devisee of a 
 mortgagee, be living or dead, or on an allegation that any trustee or 
 mortgagee has died intestate without an heir, or has died and it is not 
 known who is his heir or devisee, then in any of such cases the fact that 
 the lord chancellor intrusted as aforesaid, or the Court of Chancery, has 
 made an order upon such an allegation, shall be conclusive evidence of 
 the matter so alleged in any court of law or equity upon any question as 
 to the legal validity of the order : Provided always, that nothing herein 
 contained shall prevent the Court of Chancery directing a reconveyance 
 or re-assignment of any lands conveyed or assigned by any order under 
 this act, or a redisposition of any contingent right conveyed or disposed 
 of by such order -, and it shall be lawful for the said court to direct any 
 of the parties to any suit concerning such lands or contingent right to 
 pay any costs occasioned by the order under this act, when the same 
 shall appear to have been improperly obtained. 
 
 XLV. And be it enacted, that it shall be lawful for the lord chan- 
 cellor ^intrusted as aforesaid, or the Court of Chancery, to exer- r^ggg-i 
 cise the powers herein conferred for the purpose of vesting any L -• 
 
 (w) See Wood v. Beetlestone, 1 Kay & Johns. 213.
 
 700 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 lands, stock, or cbose in action in the trustee or trustees of any charity 
 or society over which charity or society the said Court of Chancery would 
 have jurisdiction upon suit duly instituted, (jc) whether such trustee or trus- 
 tees shall have been duly appointed by any power contained in any deed 
 or instrument, or by the decree of the said Court of Chancery, or by 
 order made upon a petition to the said court under any statute autho- 
 rizing the said court to make an order to that effect in a summary way 
 upon petition. 
 
 XLVI. And be it enacted, that no lands, stock, or chose in action, 
 vested in any person upon any trust or by way of mortgage, or any pro- 
 fits thereof, shall escheat or be forfeited to her majesty, her heirs or suc- 
 cessors, or to any corporation, lord or lady of a manor, or other person, 
 by reason of the attainder or conviction for any offence of such trustee 
 or mortgagee, but shall remain in such trustee or mortgagee, or survive 
 to his or her co-trustee, or descend or vest in his or her representative, 
 as if no such attainder or conviction had taken place. (y) 
 
 XLVII. And- be it enacted, that nothing contained in this act shall 
 prevent the escheat or forfeiture of any lands or personal estate vested 
 in any such trustee or mortgagee, so far as relates to any beneficial in- 
 terest therein of any such trustee or mortgagee, but such lands or per- 
 sonal estate, so far as relates to any such beneficial interest, shall be re- 
 coverable in the same manner as if this act had not passed. («) 
 
 XLVIII. And be it enacted, that where any infant or person of un- 
 sound mind shall be entitled to any money payable in discharge of any 
 lands, stock, or chose in action conveyed, assigned, or transferred under 
 this act, it shall be lawful for the person by whom such money is pay- 
 able to pay the same into the Bank of England, in the name and with 
 the privity of the accountant-general, in trust in any cause then depend- 
 ing concerning such money, or, if there shall be no such cause, to the 
 credit of such infant or person of unsound mind, subject to the order or 
 disposition of the said court ; and it shall be lawful for the said court, 
 r^QOni ^V^^ petition in a summary way, to order any *money so paid to 
 L J be invested in the public funds, and to order payment or distri- 
 bution thereof, or payment of the dividends thereof, as to the said court 
 shall seem reasonable; and every cashier of the Bank of England who 
 shall receive any such money is hereby required to give to the person 
 paying the same a receipt for such money, and such receipt shall be an 
 effectual discharge for the money therein respectively expressed to have 
 been received. 
 
 XLIX. And be it enacted, that where in any suit commenced or to 
 be commenced in the Court of Chancery it shall be made to appear to 
 the court by affidavit that diligent search and inquiry has been made 
 after any person made a defendant, who is only a trustee, to serve him 
 with the process of the court, and that he cannot be found, it shall be 
 
 {x) See now 16 & IT Vict. c. 13?, ss. 28, 32. Re Davenport's Charitj, 4 De 
 Gex, Mac. & Gor. 839 ; and see p. 718, supra. 
 
 {y) This section is a re-enactment almost verbatim of section 3 of the Escheat 
 and Forfeiture Act. See now section 8 of the Extension Act, giving the court 
 power to appoint new trustees in the place of persons convicted of felony. 
 
 (z) This is a re-enactment of sect 5, of the Escheat and Forfeiture Act.
 
 TRUSTEE ACT, 185 0. 701 
 
 lawful for the said court to hear and determine such cause, and to make 
 such absolute decree therein against every person who shall appear to 
 them to be only a trustee, and not otherwise concerned in interest in the 
 matter in question, in such and the same manner as if such trustee had 
 been duly served with the process of the court, and had appeared and 
 filed his answer thereto, and had also appeared by his counsel and solici- 
 tor at the hearing of such cause : Provided always, that no such decree 
 shall bind, affect, or in anywise prejudice any person against whom the 
 same shall be made, without service of process upon him as aforesaid, 
 his heirs, executors, or administrators, for or in respect of any estate, 
 right, or interest which such person shall have at the time of making 
 su^ch decree for his own use and benefit, or otherwise than as a trustee as 
 aforesaid. 
 
 L. And be it enacted, that when any person shall, under the provi- 
 sions of this act, apply to one of the masters of the Court of Chancery 
 in the first instance, and adduce evidence, for the purpose of obtaining 
 the certificate of such master as a foundation for an order of the said 
 lord chancellor intrusted as aforesaid, or the said court of chancery, it 
 shall be lawful for the said master to order service of such application 
 upon any person, or to dismiss such application, and to direct that the 
 costs of any persons consequent thereon shall be paid by the person 
 making the same ; and all orders of the master under this act shall be 
 enforced by the same process as orders of the court made in any suit 
 against a party thereto. 
 
 LI. And be it enacted, that the lord chancellor intrusted as aforesaid, 
 and the Court of Chancery, may order the costs and expenses of and 
 relating to the petitions, orders, directions, conveyances, assignments, 
 and transfers to be made in pursuance of this act, or any of pgQ;^-! 
 *them, to be paid and raised out of or from the lands or per- L J 
 sonal estate, or the rents or produce thereof, in respect of which the same 
 respectively shall be made, or in such manner as the said lord chancel- 
 lor or court shall think proper.(a) 
 
 LII. And be it enacted, that upon any petition being presented under 
 this act to the lord chancellor intrusted as aforesaid, concerning a person 
 of unsound mind, it shall be lawful for the said lord chancellor, should 
 he so think fit, to direct that a commission in the nature of a writ cle 
 lunatico inquirendo shall issue concerning such person, and to postpone 
 
 (a) See, as to the costs of an infant trustee, Ex parte Cant, 10 Vesey, 554 : and 
 as to those of an infant mortgagee, Ex parte Ommaney, 10 Sim. 298 ; Miltown v. 
 Trimbleston, 1 Fl. & Kelley, 328 : the first case decided under the 7 Anne, c. 19, 
 the two latter under the 1 W. 4, c. 60. 
 
 As to the costs of a lunatic trustee or mortgage, see note (t), p. 883, supra. 
 
 The costs of applications for the appointment of new trustees come out of the 
 corpus of the trust fund. Re Fellows' Settlement, 1 Jur. N. S. 62 ; Re Fulham, 15 
 Jur 69- Ex parte Davies, 16 Jur. 882. And in the last-named case the court, 
 though after some hesitation, declared that certain costs incurred under the act 
 should, with interest at 4 per cent., form a charge on the inheritance. In Re 
 Primrose's Settlement, 5 Weekly Rep. 508, the master of the rolls was of opinion, 
 that he had no jurisdiction under this act to order respondents to pay costs. But 
 compare the decision in Re Woodburn, 5 Weekly Rep. 649, under the Trustee Re- 
 lief Act.
 
 702 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 makino- any order upon such petition until a return shall have been made 
 to such commission. 
 
 LIII. And be it enacted, that upon any petition under this act being 
 presented to the lord chancellor intrusted as aforesaid, or to the Court 
 of Chancery, it shall be lawful for the said lord chancellor, or the said 
 Court of Chancery, to postpone making any order upon such petition 
 until the right of the petitioner or petitioners shall have been declared 
 in a suit duly instituted for that purpose. (Z^) 
 
 LIV. And be it enacted, that the powers and authorities given by 
 this act to the Court of Chancery in England shall extend to all lands 
 and personal estate within the dominions, plantations, and colonies be- 
 longing to her majesty (except Scotland.) 
 
 LV. And be it enacted, that the powers and authorities given by 
 this act to the Court of Chancery in England shall and may be exer- 
 cised in like manner and are hereby given and extended to the Court 
 of Chancery in Ireland with respect to all lands and personal estate in 
 Ireland. 
 
 LVI. And be it enacted, that the powers and authorities given by 
 this act to the lord chancellor of Great Britain intrusted as aforesaid, 
 shall extend to all lands and personal estate within any of the dominions, 
 plantations, and colonies belonging to her majesty (except Scotland and 
 Ireland. Vc) 
 
 r*Qn9n *LVII. And be it enacted, that the powers and authorities 
 L J given by this act to the lord chancellor of Great Britain intrust- 
 ed as aforesaid, shall and may be exercised in like manner by and are 
 hereby given to the lord chancellor of Ireland intrusted as aforesaid, with 
 respect to all lands and personal estate in Ireland. 
 
 LVIII. And be it enacted, that in citing this act and other acts of 
 parliament, and in legal instruments and in legal proceedings, it shall be 
 sufficient to use the expression " The Trustee Act, 1850. '^ 
 
 LIX. And be it enacted, that this act shall come into operation on the 
 first day of November, one thousand eight hundred and fifty. 
 
 LX. And be it enacted, that this act may be amended or repealed by 
 any act to be passed in this session of parliament. 
 
 (b) Thus a suit was directed where a father purchased in the name of his son, 
 but without intending an advancement, and the court refused to declare the son, 
 who was a lunatic, a trustee for his father without a suit. Collinson v. Collinsou, 
 3 De Gex, Mac. & Gor. 409 ; and see Re Burt, 9 Hare, 289. 
 
 (c) The Lord Chancellor of Great Britain, sitting in lunacy, has no jurisdiction 
 over lands in Ireland. Re Davies, 3 Mae. k Gor. 278.
 
 TRUSTEE EXTEISIOJf ACT, 1852. 
 
 15° & 16° Victoria, Cap. 55. 
 
 An act to extend the Provisions of " The Trustee Act, 1850. 
 [30«A June, 1852.] 
 
 Whereas it is expedient to extend the provisions of the Trustee 
 Act, 1850 : Be it therefore enacted by the queen's most excellent majesty, 
 by and with the advice and consent of the lords spiritual and temporal, 
 and commons, in this present parliament assembled, and by the authori- 
 ty of the same. 
 
 I. That when any decree or order shall have been madefa) by any 
 court of equity directing the sale of any lands for any purpose what- 
 ever,(6) every person seised or possessed of such land, or entitled to a 
 contingent right therein, being a party to the suit or proceeding in which 
 such decree or order shall have been made, and bound thereby, or being 
 otherwise bound by such decree or order, shall be deemed to be so seised 
 or possessed or entitled (as the case may be) upon a trust within the 
 meaning of the Trustee Act, 1850 ; and in every such case it shall be 
 lawful for the Court of Chancery, if the said court shall think it expedient 
 for the purpose of carrying such sale into eflPect, to make an order vesting 
 such lands or any part thereof, for such estate as the court shall think 
 fit, either in any purchaser(c) or in such *other person as the r^qn i -i 
 court shall direct ; and every such order shall have the same effect L -J 
 as if such person so seised or possessed or entitled had been free from 
 all disability, and had duly executed all proper conveyances and assign- 
 ments of such lands for such estate. 
 
 [a) A decree made before the passing of this act is within the operation of this 
 clause, Wake v. Wake, IT Jur. ^45. 
 
 {b) The 30th section of the Trustee Act, 1850, applied only to decrees directing 
 a sale for the payment o( debts ; and consequently where the decree for sale had been 
 made in order to provide a fund available for payment of costs, the court had no 
 power to make a vesting order, Weston v. Filer, 5 De Gex & Sm. 608. This enact- 
 ment remedies the inconvenience. 
 
 (c) Where lands are sold in several lots to different purchasers, the purchasers of 
 the different lots may join in one petition, Rowley v. Adams, 14Beav. 130. The 
 purchaser is the proper person to apply, Ayles v. Cox, 17 Beav. 584 ; but the plain- 
 tiffs and purchaser may join if they think fit, Rowley v. Adams, ubi supra. 
 
 The costs of the petition fiill upon the vendor, Ayles v. Cox, ubi supra.
 
 704 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 II. That sections numbered seventeen and eighteen in the queen's 
 printer's copy of the Trustee Act, 1850, be repealed ; and in every case 
 where any person is or shall be jointly or solely seised or possessed of 
 any lands or entitled to a contingent right therein upon any trust, and 
 a demand shall have been made upon such trustee by a person entitled 
 to require a conveyance or assignment of such lands, or a duly authorized 
 agent of such last-mentioned person, requiring such trustee to convey or 
 assign the same, or to release such contingent right, it shall be lawful for 
 the Court of Chancery, if the said court shall be satisfied that such trus- 
 tee has wilfully refused or neglected to convey or assign the said lands 
 for the space of twenty-eight days after such demand, to make an order 
 vesting such lands in such person, in such manner and for such a state 
 as the court shall direct, or releasing such contingent right in such 
 manner as the court shall direct; and the said order shall have the same 
 effect as if the trustee had duly executed a conveyance or assignment of 
 the lands, or a release of such right, in the same manner and for the 
 same estate. (cZ) 
 
 III. That when any infant shall be solely entitled to any stock upon 
 any trust, it shall be lawful for the Court of Chancery to make an order 
 vesting in any person or persons the right to transfer such stock, or to 
 receive the dividends or income thereof; and when any infant shall be 
 entitled jointly with any other person or persons to any stock upon any 
 trust, it shall be lawful for the said court to make an order vesting the 
 right to transfer such stock, or to receive the dividends or income thereof, 
 either in the person or persons conjointly entitled with the infant, or in 
 him or them together with any other person or persons the said court 
 may appoint, (e) 
 
 IV. That where any person shall neglect or refuse to transfer any 
 r*Qnf^i ^^^'Ock or to receive the dividends or income thereof, or to sue 
 L -I for or recover any chose in action, or any interest in respect 
 thereof, for the space of twenty-eight days next after an order of the 
 Court of Chancery for that purpose shall have been served upon him,(/) 
 it shall be lawful for the Court of Chancery to make an order vesting all 
 the right of such person to transfer such stock, or to receive the dividends 
 or income thereof, or to sue for and recover such chose in action, or any 
 interest in respect thereof, in such person or persons as the said court 
 may appoint. 
 
 V. When any stock shall be standing in the sole name of a deceased 
 
 {d) Under the Htli & 18th sections of the Trustee Act, 1850, the power of the 
 court arose only upon written refusal to convey, or neglect or refusal so to do after 
 tender of a proper deed. The former contingency was of rare occurrence, and con- 
 siderable difficulty was often experienced in bringing the case within the terms 
 of the latter. See as to copyholds, Rowley v. Adams, 14 Beav. 130. See notes on 
 section 23 of Trustee Act, 1850, and note (a), p. 837, supra. 
 
 (e) In Cramer v. Cramer, 5 De Gex & Sm. 312, Vice-Chancellor Parker held 
 that the Trustee Act, 1850, having conferred no general power in the case of an 
 infant trustee of stock, the court had no authority to make a vesting order with 
 regard to stock held by an inf\\nt trustee out of the Jurisdiction. Hence this enact- 
 ment. 
 
 (/) See the case of Mackenzie v. Mackenzie, 5 De Gex & Sm. 338 ; and of Re 
 Hartnall, 5 De Gex & Sm. HI ; the decisions in which probably suggested this 
 clause.
 
 TRUSTEE EXTENSION ACT, 185 2. 705 
 
 person, and his personal representative shall refuse or neglect to trans- 
 fer such stock or receive the dividends or income thereof for the space 
 of twenty-eight days next after an order of the Court of Chancery for 
 that purpose shall have been served upon him, it shall be lawful for the 
 Court of Chancery to make an order vesting the right to transfer such 
 stock, or to receive the dividends or income thereof, in any person or 
 persons whom the said court may appoint 
 
 VI. When any order being or purporting to be under this act, or under 
 the Trustee Act, 1850, shall be made by the lord chancellor intrusted 
 as aforesaid, or by the Court of Chancery, vesting the right to any stock, 
 or vesting the right to transfer any stock, or vesting the right to call for 
 the transfer of any stock, in any person or persons, in every such case the 
 legal right to transfer such stock shall vest accordingly ;(^) and the person 
 or persons so appointed shall be authorized and empowered to execute all 
 deeds and powers of attorney, and to perform all acts relating to the trans- 
 fer of such stock into his or their own name or names, or otherwise, to the 
 extent and in conformity with the terms of the order ; and the Bank of 
 England, and all companies and associations whatever, and all persons, 
 shall be equally bound and compellable to comply with the requisitions of 
 such person or persons so appelated as aforesaid, to the extent and in 
 conformity with the terms of such order, as the said Bank of England, or 
 such companies, associations, or persons would have been bound and com- 
 pellable to comply with the requisitions of the person in whose place such 
 appointment shall have been made. 
 
 VII. That every order made or to be made, being or purport- n^jcQAp-i 
 ing *to be made under this or the Trustee Act, 1850, by the L J 
 lord chancellor intrusted as aforesaid, or by the Court of Chancery, and 
 duly passed and entered, shall be a complete indemnity to the bank of 
 England, and all companies and associations whatsoever, and all persons, 
 for any act done pursuant thereto ; and it shall not be necessary for the 
 bank of England, or such company or association or person, to inquire 
 concerning the propriety of such order, or whether the lord chancellor 
 intrusted, as aforesaid, or the Court of Chancery had jurisdiction to make 
 the same. 
 
 VIII. That when any person is or shall be jointly or solely seised or 
 possessed of any lauds or entitled to any stock upon any trust, and such 
 person has been or shall be convicted of felony, it shall be lawful for the 
 Court of Chancery, upon proof of such conviction, to appoint any person 
 to be a trustee in the place of such convict, and to make an order for 
 vesting such lands, or the right to transfer such stock, and to receive 
 the dividends or income thereof, in such person to be so appointed trus- 
 tee ; and such order shall have the same effect as to lands as if the con- 
 vict trustee had been free from any disability and had duly executed a 
 conveyance or assignment of his estate and interest in the same. 
 
 IX. That in all cases where it shall be expedient to appoint a new 
 trustee, and it shall be found inexpedient, difficult, or impracticable so to 
 do without the assistance of the Court of Chancery, it shall be lawful for 
 
 (ff) See the decision in Smyth's Settlement, 4 De Gex & Smale, 499, which 
 doubtless was the cause of this and the next following section.
 
 706 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 the said court to make an order appointing a new trustee or new trustees, 
 whether there be any existing trustee or not at the time of making such 
 order. (7i) 
 
 X. In every case in which the lord chancellor intrusted as aforesaid 
 has jurisdiction under this act, or the Trustee Act, 1850, to order a con- 
 veyance or transfer of land or stock, or to make a vesting order, it shall 
 be lawful for him also to make an order appointing a new trustee or new 
 trustees, in like manner as the Court of Chancery may do in like cases, 
 without its being necessary that the order should be made in chancery 
 as well as in lunacy, or be passed and entered by the registrar of the 
 Court of Chancery. 
 
 XI. That all the jurisdiction conferred by this act(i) on the lord 
 chancellor, intrusted by virtue of the queen's sign manual with the care 
 
 of the persons and estates of lunatics, shall and may be bad, 
 L ' J *exercised, and performed by the person or persons for the time 
 being intrusted as aforesaid. 
 
 XII. That this act shall be read and construed according to the defi- 
 nitions and interpretations contained in the second section of the Trustee 
 Act, 1850, and the provisions of the said last-mentioned act (except so 
 far as the same are altered by or inconsistent with this act) shall extend 
 and apply to the cases provided for by this act, in the same way as if 
 this act had been incorporated with and had formed part of the said 
 Trustee Act, 1850. 
 
 XIII. That every order to be made under the Trustee Act, 1850, or 
 this act, which shall have the eifect of a conveyance or assignment of 
 any lands, or a transfer of any such stock as can only be transferred by 
 stamped deed, shall be chargeable with the like amount of stamp duty 
 as it would have been chargeable with if it had been a deed executed by 
 the person or persons seised or possessed of such lands, or entitled to 
 such stock; and every such order shall be duly stamped for denoting the 
 payment of the said duty. 
 
 (h) See note (p), p. 895, supra, as to the doubt ^hich led to this enactment. 
 
 (0 See Re Waugh's Trust, 2 De Gex, Mac. & Gor. 279. Re Pattinson, 21 L. J. 
 Ch. 280. The doubts there raised, were, as respects the jurisdiction conferred by 
 the Trustee Act, 1850, removed by the 15 & 16 Vict. c. 87, s. 15, (date of Royal 
 Assent, 1st July, 1852).
 
 APPENDIX. 
 
 No. I. 
 
 Strode v. Winchester. Supra, p. 71. 
 
 The following is a brief note of the case from the Registrar's Book : 
 Ferdinando John Paris, being desirous of leaving his fortune to Lucy 
 Naomi Strode, but without the knowledge of her husband, who had 
 married her against the wishes of the testator, fixed upon Elizabeth 
 Gough, the mother of the said Mrs. Strode, to be the sole trustee, and 
 acquainted lier therewith, and received a solemn promise from her, that 
 she would take care of every thing for the separate use of her daughter. 
 Paris, by his will, gave all his real and personal estate to Mrs. Gough, 
 and made her sole executrix ; and by a paper writing, which bore even 
 date with and accompanied the will, he addressed Mrs. Gough as follows : 
 — "I have given you the whole of what I have in the world, and I wish 
 I had more to give in the same way. You know the unhappy reason 
 why I could not leave you a partner in the donation, but I greatly trust 
 you will answer my often declared design and intention, and therefore 
 would not fetter you with any trust, nor with any co-executor ; and I beg 
 you to answer my purpose most effectually, in full opinion whereof I have 
 made my will in this manner, relying on your fidelity therein. One of 
 my motives to this disposition is, the promise I made to my late wife in 
 her last moments to take the best care I could of you and yours. I 
 have other motives also, from your own great care and trouble taken for 
 me ; and, lastly, the great and true regard which I have for yourself and 
 that dear girl, who was my wife's favorite. Do not disappoint my expec- 
 tation of you." A mass of evidence was read relative to the intentions 
 of the testator, and the conduct and the declarations of Mrs. Gough, and 
 the court decreed, '<that by virtue of the last will of the testator, and 
 the letter accompanying the will, and the evidence in the cause, the 
 devisee was and ought to be deemed a trustee of the real and personal 
 estate, for the separate use and benefit of Mrs. Strode." — Reg. Lib. 
 1766, B. fol. 515. 
 
 No. IL 
 Abbot V. Lee. Supra, p. 189, 797. 
 " The substance of the plaintifi"'s bill appeared to be, that George
 
 708 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 Cuthbert, the testator, having issue two sons, William and Edward, and 
 two daughters, Jane and Mary, did, about May, 1681, make his 
 [*^1^J will, and therein, amongst other things, did devise to his daughter 
 Jane 550/., and to his daughter Mary the like sum of 550/., and directed 
 that those sums should be laid out by his executors in a purchase of 
 lands, at the discretion of his executors, within one year after his decease, 
 for the use of his said daughters and the heirs of their bodies lawfully to 
 be begotten ; and in case either of his daughters should die before mar- 
 riage,°that then 150/. of her money, or in case the money be laid out in 
 lands, then lands of the value of 150/., out of her share of the lands so 
 purchased, should go to the surviving sister, and the other 400/. to his | 
 sons, equally to be divided between them and their heirs; and the said | 
 George Cuthbert, by his said will, did also devise unto his said sons all 
 the lands in his said will particularly mentioned ; and in case his sons 
 died without issue, then he devised those lands to his daughters and the 
 survivor of them and their heirs ; and he gave the use of his household 
 goods to his wife, and after her decease the same were to be divided 
 amongst his children, at the discretion of his executors; and of his will 
 he made Jane his wife (now the wife of William Leach,) and the de- 
 fendant Lee, executrix and executor, in trust for his said sons and 
 daughters. That after his decease, the executors executed the will, and 
 possessed themselves of the real and personal estate, but did not lay out 
 any part of the money in a purchase of lands. That both the sons, and 
 Jane, one of the daughters, died in their minority unmarried, and the 
 plaintiff married Mary, the surviving daughter, who also died without 
 issue ; and the plaintiff took out letters of administration to her, and 
 thereby became entitled to her legacy of 550/. and to 150/. of Jane's 
 legacy. That the defendant Cuthbert pretends that he is entitled to all 
 the estate, both real and personal, of the said George Cuthbert, as his 
 next heir-at-law, by the words of the said will, and that the defendant 
 Lee ought to account to him, and not to the plaintiff. Wherefore, to 
 have a discovery and an account of the testator Cuthbert's estate, and 
 that the defendants, the executors, may account for and pay to the plain- 
 tiff the several legacies devised to the said Mary by the will of the said 
 G. Cuthbert, and the plaintiff be relieved, is the scope of the bill. 
 Whereto the counsel for the defendant William Cuthbert insisted that 
 the defendant William Cuthbert by his answer confessed the will, and 
 that the testator's sons and daughter Jane died unmarried, and that 
 Mary, the plaintiff's wife, died without issue, and he believed the plain- 
 tiff was her administrator, but not entitled to her legacy, for that he the 
 said defendant was entitled to her legacy, for that he the said defendant 
 is entitled to the 1100/. given to Jane and Mary, he being heir at law to 
 the testator and to his children; and that if the 1100/. had been laid out 
 in lands, as it ought to have been, then the same would have descended 
 to him, and that therefore he claims the same, but submits to the judg- 
 ment of the court whether the plaintiff be entitled to any part thereof. 
 Whereupon, and upon long debate of the matter, and hearing of what 
 was insisted by counsel on either side, and upon producing of an order 
 made in the said cause, whereby it was ordered that the plaintiff might
 
 APPENDIX. 709 
 
 proceed to hear the cause against the defendant Lee only without pre- 
 judice in regard the defendant Leach and his wife, though duly served 
 with process to appear, yet had not appeared, but sat in contempt to a 
 serjeant-at-anus, and were insolvent and could not be found, the court 
 declared, that the 550?. legacy devised to Mary, and *150?. of r^g-j^-j^-i 
 Jane's legacy, did belong unto the plaintiff as administrator to L J 
 his wife, and that the defendant Cuthbert had not any right or title to 
 the same as heir-at-law to George Cuthbert or his children, or otherwise; 
 and doth therefore think fit and so order and decree, that the defendant 
 Lee do account, &c., (the usual order,) and out of the money which shall 
 appear to be in the said defendant's hands, upon such account, the said 
 defendant is hereby ordered and decreed to pay unto the said plaintiff 
 the aforesaid sums of 550?. and 150?., or so much thereof as the same 
 shall amount unto." — Reg. Lib. 1689^ A. f. 177. 
 
 No. III. 
 Cogan V. Stevens. Supra, p. 189. 
 
 November 24th, 1835. 
 
 Sir Christopher C. Pepys, master of the rolls, — " This case involves 
 a question of great and general importance, and of principles which 
 might be supposed to be of very general application ; and so it would 
 appear to be from the circumstance of several cases having come before 
 me since the argument of the cause, involving the same question ; and 
 yet it appears I am called on to give the first judicial opinion on the 
 subject. The question is simply, whether, when a testator directs 
 money to be invested in land for certain purposes, some of which are 
 lawful and take eflFect, but others fail and become void, the property so 
 given, after satisfying the lawful purposes, belongs to the next of kin or 
 to the heir of the testator. The testator, Lewis Stevens, by his will, 
 dated at Lisbon, 11th July, 1789, after describing himself as a native 
 of Exeter, and enumerating the particulars of his property, which he 
 stated to amount to 100,000?. sterling, proceeds thus: — 'As to the dis- 
 posal of those worldly goods which I leave behind me, my order is, that 
 after my funeral expenses are paid, and all my just debts, and 24,000 
 milreis to my dearly beloved wife, Mary Bryanna Bulkely, now Stevens, 
 that the sum of 30,000?. sterling be laid out immediately by my exe- 
 cutors hereunder mentioned, in the purchase of an estate or estates in 
 the county of Devon or Cornwall, the income of which shall belong to 
 my widow during her natural life. And after her decease the said in- 
 come shall belong to my dear brother William, or his children lawfully 
 begotten ; and if he dies without children, the said income shall belong 
 to my brother Jedediah and his children lawfully begotten ; and if he 
 dies without issue, then this income shall belong to my brother John 
 James and his children lawfully begotten ; and if he dies without chil- 
 dren, then this income shall belong to my dear sister Philadelphia and 
 her children lawfully begstten ; and if she dies without children, then
 
 710 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 the income of this estate or estates, which shall be purchased and always 
 run in my name, shall be employed in the establishment of a charity 
 school for boys in the city of Exeter, for the purpose of teaching them 
 to read, write, and cypher, and foreign languages, which boys shall be 
 natives of the counties of Devonshire or Cornwall. And I hereby order 
 my executors to purchase this estate or estates in my name, and register 
 the same, and this my determination, in proper places, that the chamber 
 of Exeter may take charge thereof in default of the regular succession 
 above-mentioned, and erect the school as hereby directed, which school 
 shall be *called Stevens's Charity School ; and the regulations 
 [*912] ^^^ .^g establishment I leave to the said chamber of Exeter, and 
 my cousins Charles and Joseph Lyne, if they survive, with orders to set 
 immediately about this useful establishment.' He then gave certain 
 pecuniary legacies, and the residue of his fortune he gave and bequeathed 
 in the following manner, dividing the same into fifteen parts. He gave 
 three-fifteenths to his brother William, three-fifteenths to Jedediah, 
 three-fifteenths to John James, three-fifteenths to Philadelphia, two- 
 fifteenths to his cousin Charles Lyne, and one-fifteenth to Joseph Lyne. 
 Then after the above-mentioned disposition was made, they were to re- 
 ceive and divide as the money came in, as his affairs went on liquidating; 
 and he nominated his executors, his brothers AVilliam and Jedediah, and 
 his cousin Charles Lyne, or in default of either of his said brothers, he 
 nominated his brother John James, and in default of his cousin Charles 
 Lyne, he nominated his cousin Joseph Lyne; and he declared that what 
 he left should be divided out in full, as it was liquidated ; and if any of 
 the executors refused taking charge of the executorship, his share should 
 be forfeited to the benefit of the others ; that if any of his brothers or 
 sisters should die before him, or either of his two cousins should die 
 before him, that then the share of the deceased should be divided among 
 the remaining five heirs of the residue. The will was proved by Jede- 
 diah Stevens in 1795, by John James Stevens in 1826, and afterwards 
 by Charles Lyne, who took the name of Stevens, and is now the per- 
 sonal representative of the testator. The 30,000?. never was laid out in 
 the purchase of land : it was invested in the public funds, and now con- 
 sists of 30,996?. in the four per cents., of which fund the testator's 
 widow received the dividends until her death, which took place in 1827, 
 before which event all the devisees had died without issue, William in 
 18C3, Jedediah the same year, Philadelphia in 1824, and John James 
 in 1826, so that upon the death of the tenant for life all the limitations 
 as to the estate to be purchased by the 30,0007. prior to the direction of 
 establishing the school at Exeter have failed, and the question is, who 
 is now entitled to the 30,0007., — the plaintiff, who, on the reference 
 made at the hearing of the cause, is found to be the heir, or the defen- 
 dant, who claims it as part of the personal estate of the testator in the 
 event which has happened? Upon i:>rinciple, and upon analogy to 
 several well-established rules in equity, it would appear that there is 
 no doubt as to the proper solution of this question. The only difficulty 
 arises from some few cases or dicta of the judges, which it is impossible 
 to reconcile with these principles or these rules; and some of the cases pro-
 
 APPENDIX, 711 
 
 ceed from authority so high, that, if not absolutely binding on the court, 
 they ought at least to make it extremely cautious in pronouncing any judg- 
 ment inconsistent with them. If a testator devises land for purposes 
 altogether illegal, or which altogether fail, the heir-at-law takes it as undis- 
 posed of. If a testator gives personal property for purposes altogether illegal 
 or which altogether fail, the next of kin takes it, as in the case of an intes- 
 tacy, as undisposed of. If a testator devises lands for purposes which are 
 in part illegal, or which partially fail, or which require part only of the 
 lands devised, the heir takes so much of the land as is undisposed of, and 
 which was destined for the purpose, which by law cannot, or in fact does 
 not, take effect, and so much as is not required for the purposes of the 
 *will; and this whether the land be actually sold or not. But f-:i;Q-jq-| 
 here, it is said, the analogy between the cases of land and money l J 
 ceases, and that if a testator directs money to be laid out in the purchase 
 of land for purposes which are partly illegal, or which partially fail, the 
 next of kin has no such interest in the money, as cannot be applied to the 
 purposes of the will; but if there are purposes legal and feasible which re- 
 quire the investment, the next of kin are excluded. And why are they 
 to be so excluded ? The proposition assumes the property in question, 
 that is, a portion of the interest in the property, is not disposed of by the 
 will, and the law gives to the next of kin all the personalty not disposed of. 
 Is it from any incapacity in the next of kin to take property which exists 
 in the form of land ? That cannot be. In equity money may be con- 
 sidered as land, or land as money, according to circumstances. A man 
 who has agreed to sell his land, and dies intestate, dies seised of the 
 land — his property exists as land — it descends as land to the heir. The 
 next of kin, so far from being incapable of succeeding to property that 
 exists in the form of land, are entitled to the purchase-money to be paid 
 in lieu of the land so contracted to be sold. So it is with respect to 
 mortgages in fee, of which the mortgagee dies seised, so that it cannot 
 be that his next of kin are to be excluded, because the property exists 
 in the form of land. But if there be this difficulty in stating why the next 
 of kin are to be excluded, there is at least as much difficulty in showing 
 how the heir-at-law may be entitled, 'as regards the personalty. The pro- 
 position assumes the property was personalty of the testator at the moment 
 of his death, and there was no seisin in him of any thing of any inheri- 
 table quality. Can the heir, as such, inherit what never was inheri- 
 table ? Can he take from the ancestor what the ancestor never had? It 
 cannot be necessary to pursue this any further. If the heir cannot take, 
 as such, there is then one other character in which he can take : he 
 must claim under the will. Doubtless an heir may take as devisee in 
 such a case, but then he must show from the will itself a gift in his 
 favour. He must show an intention that in the events which have hap- 
 pened, the heir should take ; but this supposition the proposition itself 
 excludes, because it assumes an intention to bestow the whole benefit'on 
 others ; and there is not in this case, or in the case supposed, any inten- 
 tion expressed, or to be implied, as to the destination of the property in 
 the event of the disposition made not taking effect. If indeed an heir 
 claims as such, he is not defeated by the intention to disinherit, if mani-
 
 712 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 festly any sucli intention for any reason fails to take effect. I am now 
 considering the claim of the heir, not by virtue of that title which the 
 law gives to him of inheriting all the property not effectually given away, 
 but as a devisee under the will — but as the person designated by this 
 testator as his devisee, and in the event that has happened. If the tes- 
 tator was simply to direct an investment of a sum in land, and declare 
 no trust in it, the heir might with some plausibility contend the testator 
 could have had no other object but to create or add to his real estate, and 
 that it might be enjoyed in that line by whom that description of pro- 
 perty is by law inheritable. But it is obvious, when the particular pur- 
 pose of the investment is declared, and the particular persons are speci- 
 fied, as alone the objects of the testator's disposition, there is no place for 
 any such contention. If, under such circumstances, the heir were to take 
 as devisee, he would take in defiance of all the rules by which the rights 
 of other persons claiming as devisees are regulated. He would take not 
 only without any words *of gift, or any expression of intention 
 L -1 in his favour, but against the true intent that others and not he 
 should have the whole interest in the property. If the devise of per- 
 sonalty for a purpose, part of which fails, be to be considered as a devise 
 to the heir to the extent and as far as the object fails, why is not a devise 
 of land to be converted into money for purposes which partially fail, to be 
 considered as a devise to the next of kin to the extent of the failing of 
 the first object of the gift ? The same expressions may be used in both 
 instances ; and yet in one the legal successor to land is to take, yet in 
 the other the legal successor to money is to be excluded. Under the 
 circumstances, and for these reasons, had the case come before me to be 
 decided on principle and on authority independent of two or three cases 
 to which I shall particularly refer, I should not have felt any difficulty 
 in deciding against the claim of the heir. It remains to be considered 
 whether I am bound by these cases to decide in his favour. An obser- 
 vation was made by Mr. Pembcrton at the hearing, which removes much 
 of the difficulty which would otherwise have arisen from the cases, 
 namely, that no authority of an earlier date than Ackroyd v. Smithson 
 ought to have much weight with me. The force of this observation will 
 be felt, on adverting to what Lord Thurlow says in deciding that case. 
 He says, ' I used to think, when it was necessary for any purpose of the 
 testator's disposition to convert the land into money, that the undisposed 
 land would be personalty.' Now this is precisely the argument used as 
 to the conversion of money into land by Mr. Hodgson ; and here I can- 
 not but observe, that this subject of conversion has given rise to two of 
 the ablest arguments ever addressed to any court — that by Lord Eldon 
 on the one side in Ackroyd v. Smithson, and that by Mr. Hodgson on 
 the other, in the present case — an argument, which has, since it has 
 been delivered, been frequently mentioned at the bar in terms of the 
 highest praise, and in which I gladly avail myself of this opportunity to 
 express my entire concurrence. In that argument it was necessarily 
 admitted, if all the purposes of a devise failed, the whole belongs to the 
 heir (^qu. next of kin.) But it was contended, that if the purposes are 
 to be in part executed, and so that the right to have such an investment
 
 APPENDIX. 713 
 
 of money in land effectually existed in any one to answer such partial 
 purpose, that the land so purchased, after answering such partial purpose, 
 belongs to the heir. So thought Lord Thurlow, as to lands directed to 
 be sold, before the argument in Ackroyd v. Smithson. No wonder, 
 then, that there should be found before that time traces of authority in 
 favour of the heir's claim to money, as there was of the next of 
 kin's claim to land : but the exclusion of the latter is now too well 
 settled to be disputed, and the argument for the heir rests on a sup- 
 posed difference between the two. But no such difference was sup- 
 posed to exist before Ackroyd v. Smithson : why then should it exist 
 now ? If there be any substantial difference in principle, let it pre- 
 vail, but if in principle there be no distinction, are not the decisions^ 
 in Ackroyd v. Smithson and the subsequent cases, of higher authority 
 than any decision which may have taken place before the principle was 
 so thoroughly discussed and established as it was in that case ? In 
 deciding in favour of the next of kin, I am following the principle of 
 Ackroyd v. Smithson, and maintaining that uniformity of decision as to 
 the conversion of land into money, and of money into land, which was 
 supposed to exist before that time. The case of Lechmere v. Lord 
 Carlisle(a) was cited for the heir ; but this and all other cases in which 
 *the conversion was in the lifetime of the testator, I consider as ^^q, r-. 
 not bearing upon the case. Indeed, in one view, these cases may L J 
 be thought to bear against the claim of the heir. They proceed on this 
 — that whereas, by the obligation to convert money into land in the life- 
 time of the settlor, the money had become land in the ancestoi*, whenever 
 the property was so situated the heir was held entitled to it. In the 
 present case, the heir claims that which unxjuestionably was personalty 
 at the moment of the death of the ancestor. Of the other cases cited for 
 the heir, some were in support of his right as such claiming by inheri- 
 tance, others in support of his claim as devisee. I will consider the latter 
 class first. Smith v. Claxton,(6) which does not appear to me to have 
 much application. There land was directed to be sold for purposes, some 
 of which failed : it was decided that the heir took what was not required 
 for the purposes of the will ; and the only question was, whether he took 
 it as money or as land. This has no bearing on the question, whether 
 in this case the heir or the next of kin of the testator are entitled. There 
 the observations of Sir John Leach may be material, when some other 
 of his decisions are to be observed upon hereafter. He says, ' The heir- 
 at-law is entitled because the real estate was land at the devisor's death, 
 and this part of the produce is an interest in that land not effectually 
 devised, and which therefore descends to the heir. It is for this reason 
 that the produce of an estate which the devisor directs to be sold can 
 never be strictly part of his personal estate. If a devisor directs such 
 produce to be paid to his executors, and applied as part of his personal 
 estate, the executors take it as devisees.' Amphlett v. Parke(c) came 
 before the same learned judge first. He thought the case came within 
 the authority of Durour v. Motteux,(cZ) and Mallabar v. Mallabar,(e) and 
 
 (a) 3 P. W. 211. (b) 4 Madd. 484. (c) 1 Sim. 2Y5. 
 
 (d) 1 Ves. 390. (e) Cas. t. Talb. 78. 
 
 May, 1858.— 46
 
 "14 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 expressed his regret he was there bouad to decide, that in that case, as 
 the real estate was directed to be sold, and the proceeds were directed to 
 he taken as part of the personal estate, and to be applied, together with 
 his personal estate, in paying personal legacies, a gift of the residue of 
 the personal estate passed, by the death of the legatee, a legacy arising 
 from the real estate. He says, 'it is only from deference to these two 
 cases that I arrive at the conclusion in this case, that the testatrix had 
 in her view the improbable intention, that the moneys arising from the 
 sale of the real estate should, for purposes not foreseen by her, have the 
 same quality as if at her death they had been part of her personal estate.' 
 Sir John Leach adhered to this opinion when the case was brought before 
 him in 1827, as reported 4 Russell, 75 : but Lord Brougham reversed this 
 decree, and decided in favour of the heir. Whatever may be the right 
 decision in Amphlett v. Parke, the circumstances are so different from 
 the present case, that it cannot be considered as bearing upon it. In 
 that case the question was, whether the proceeds of the real estate, which 
 were destined to the lapsed legacies, passed under the residuary clause. 
 In the present case there is no residuary clause, but the heir claims under 
 a direction to purchase land for purposes which fail. Phillips v. Phil- 
 lips(/) comes nearest to the present. In that case there was a devise of 
 land for sale and a direction that the proceeds should be deemed to be part 
 of the personal estate, and should be subject to the disposition afterwards 
 made of the personal estate. The proceeds of the sale and the personal 
 *estate were then given to trustees to pay the debts and legacies, 
 L J and the residue of the proceeds and of the personal estate was to 
 be divided into fifths, to be paid to five residuary legatees. The death 
 of one of them occasioned,a lapse as to one fifth. The question was, 
 whether so much of it as arose from the proceeds of the land belonged 
 to the heir or next of kin. Sir John Leach thought the next of kin 
 entitled, resting his judgment on cases which had decided that the resi- 
 duary clause might pass what was intended for legacies which lapsed or 
 could not be carried into effect, considering the provision of the will 
 before him as amounting to a direction, that the proceeds of the real 
 estate should be considered as personal, not only for the purposes of the 
 will, but for purposes never contemplated by the testator. To support 
 that decision on his own principles, he must have considered the will as 
 amounting to a direction that the proceeds of the land should be applied 
 not only to the purposes of the will, but, in the event of any of those 
 purposes failing, for the next of kin. It forms no part of the present 
 purpose to consider whether that case can be supported on principle, or 
 on any preceding authority. It is sufficient to observe, that it professes 
 to be founded on a direction, that the proceeds of all the land should be 
 deemed to be part of his personal estate, and it was merely a construction 
 put on such a bequest : in the present case there is no direction that the 
 money to be invested should be deemed to be part of the testator's real 
 estate. If there had not been such a direction in Phillips v. Phillips 
 Sir John Leach states that the rule established in Ackroyd v. Smithson 
 would have prevailed. His judgment, therefore, in that case is no autho- 
 
 (/) 1 M. & K. G49.
 
 APPENDIX. 715 
 
 rity for tlie claim of the lieir in tbis. In the next case of Jessopp v. 
 ■Watson(^) he decided in favour of the heir, because he did not find in 
 the will an expression equivalent to a direction that the proceeds of the 
 real estate should for all purposes be considered as if it bad been personal 
 estate at his death. On principle, therefore, the heir has not the autho- 
 rity of that learned judge, because it cannot be said in this will there 
 are any expressions equivalent to a direction that the money to be invested 
 should be considered as if it had been real estate at the time of the testa- 
 tor's death. In Kobinson v. Knight(A) the testator directed land to be 
 purchased, and that it should be settled, after a previous limitation, to 
 the use of his own right heirs, and the question was between the heir-at 
 law and the residuary devisee. This was a mere question of construction 
 between the parties, each of whom had upon the will sufficient terms of 
 gift, whereas in the present case there is an absence of any terms of gift 
 in favour of either of the contending parties. In support of the claim 
 of the heir as such, not as devisee, the case of Hayford v. Benlows(i') 
 was cited, not on account of the point decided, which was merely that, 
 under the will, the residuary legatee took clear of debts, which were held 
 to be payable out of the real estate, but for the sake of certain expressions 
 used by Lord Cowper in giving judgment. He says, 'if a sum of money 
 could be devised in trust to be laid out in laud, and the uses to which 
 the land should go be not declared, if the money thus devised be consi- 
 dered as land, why should not the benefit of the money go to the heir-at- 
 law as a resulting trust ? It is on this, in the first place, to be observed, 
 that this was not a point in the case, but the expression is merely a dic- 
 tum. The decision was in 1716, and therefore *long before Ack- p^^, ,.-, 
 royd V. Smithson, which was in 1780 ; and Lord Cowper through- L " J ■ 
 out considered the rule as to money directed to be laid out in land, and 
 land directed to be sold, as identically the same. Had he therefore con- 
 sidered the rule as to the proceeds of land directed to be sold to be as it 
 was established in Ackroyd v. Smithson, he could not have used this 
 expression as to money directed to be invested in land. It is also to be 
 observed, no case is cited as bearing on the proposition alluded to in the 
 judgment. The case of Leslie v. The Duke of Devonshire(/.-) is that 
 which creates the greatest difficulty. In that case the testator, by deed, 
 created a trust of 60,000/., which he had on mortgage, and certain free- 
 hold leases and leases for years. The 60,000?. were to be laid out in land, 
 to be settled as to part on certain uses to his son and two daughters, and 
 their children (it failed with them, all dying without issue,) the ultimate 
 remainder to Joyce Leslie in fee. As to certain other parts, to certain 
 other uses to his widow and children, which failed, and with ultimate 
 remainder to Thomas Lyster in fee. And as to 8,500?., part of the 
 60,000?., due on a particular mortgage, and his freehold leases and leases 
 for years, on trust, to secure certain annuities to his daughters, and the 
 fee of the land to be purchased by the 8,500?., and the absolute interest 
 in the freehold leases to his son. In this deed there was reserved a power 
 of revocation ; and the testator by his will revoked the grant of two leases 
 
 (^) 1 M. & K. 6G5. (A) 2Edea. 155. (?) Arabl. 582. {k) 2 B. C. C. 187.
 
 716 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 for years, and of a mortgage, part of the 60,000/., but not part of the 
 8 500/., and lie charged his annuities to his daughters on the 8,500/., 
 mortgage, and another of 6,700/., not included in the settlement ; and 
 he in'troduced another annuity to another person ; and then directed, that 
 the said annuities being paid, the surplusage of interest of the two mort- 
 crages, or of the rents of the land to be purchased, should be paid to his 
 son for life, and then should be settled in trust, after the manner, and 
 under the same conditions, limitations, and restrictions, as his other 
 estates were directed to be settled. All the testator's children died 
 without issue, but the son devised all his real and personal estate to his 
 wife ; she died intestate as to her real estate, and the Duke of Devon- 
 shire who was her heir, and who derived his title from the testator's 
 son, claimed the 8,500/. and the 6,700/. To support this claim, it was 
 endeavored to show the testator's son had been entitled to these sums as 
 real estate. It was immaterial whether he was entitled under the deed, 
 as devisee under the will, or as heir. His counsel made three points : 
 first, whether the gift was void, and, as such, went to the personal repre- 
 sentative ; secondly, whether it was to be divided into portions between 
 the classes of devisees ; and, thirdly, whether it went to the third class, 
 that is to say, to the son in fee ; and they insisted on the third of these 
 propositions. It is to be observed, that they did not claim it as having 
 vested in the son as heir, on the supposition of the devise being void for 
 uncertainty, although that would have been equally maintainable, but 
 seemed to assume, if the devise was void, then the personal representative 
 would take the mortgages, and, if the decision had been merely in favor 
 of the duke's claim as deriving title through the heir of the testator, it 
 "would obviously have been referred to the ground taken in argument by 
 his counsel, and would have been no authority in support of the claim of 
 the heir in the present case ; but, according to Mr. Brown's report of the 
 r*QlRn judgment. Lord Kenyon took no notice of the point urged, but 
 L -I *decided in favour of the title of the heir, on the ground of intes- 
 tacy, and this without time taken for consideration, without any one case 
 being cited, or any argument addressed to that question. Possibly Lord 
 Kenyon's view of the question was mistaken by the reporter : as it stands, 
 it appears to be an authority for the claim of the heir. The character of 
 the judge entitles every decision of his to the highest respect, but in this 
 case the circumstance above mentioned detracts from the authority of 
 the opinion expressed. The case of Tregonwell v. Sydenham(/) was also 
 much relied on ; but that case also is applicable only on account of cer- 
 tain observations of Lord Redesdule, and not from the decision itself. 
 The testator devised land in strict settlement, subject to a certain trust 
 for raising 20,000/., which were directed to be laid out in the purchase 
 of land to be settled to certain uses, which were void, as being too remote ; 
 and the decision was, that the 20,000/. belonged to the heir. This deci- 
 sion does not touch the present question ; that was not personalty directed 
 to be invested in land, but land first directed to be converted into money 
 and re-invested into land, and all the purposes for which this was to be 
 done having failed, the heir took the land so directed to be converted 
 
 {I) 3 Dow. 194.
 
 APPENDIX. 717 
 
 into money. Lord Redesdale does not advert to this circumstance, but 
 is made to say, < It has been established in many cases, that where land 
 is directed to be turned into money, or money is directed to be laid out 
 in land, both shall be considered as that species of property into which 
 they are directed to be converted. Considering the 20,000/. as land, the 
 disposition not being capable of being cai-ried into effect, who is to take ? 
 The heir-at-law must take. If the testator had directed 20,000/. to be 
 paid out of the personal estate, and lands to be purchased, these lands, 
 on failure of the intended purpose, would go to the heir-at-law ; the per- 
 sonal representative could not take, as the money was converted into 
 land.' It is to be observed, Lord Redesdale, in this observation, consi- 
 ders the same rule as applicable to the conversion of land into money as 
 money into land, and yet the observation he makes as to the latter, if 
 applied to the former, would be directly at variance with Ackroyd v. 
 Smithson. Unquestionably, however, if Lord Redesdale did use this 
 expression, the heir-at-law in this case has his high authority in support 
 of the proposition for which he contends. But I can consider them only 
 as dicta, there being other and better grounds to support that judgment. 
 The case of Fletcher v. Chapmanf??i) has been considered as conclusive 
 in favour of the claim of the heir. It is so treated in Mr. Jarmau's 
 edition of Powell on Devises, vol. ii. p. 74, and was so argued in this 
 case. If I considered that case as a distinct decision of the point in 
 question, I should, as the decision of the house of lords, have felt bound 
 by its authority. That case, therefore, required my most anxious consi- 
 deration, and I have had the registrar's book examined, for the purpose, 
 if possible, of throwing some light on the report. The particulars of that 
 case, as taken from the registrar's book, are as follows : — George Good- 
 man, the testator, by his will directed 1,000/. to be invested in the pur- 
 chase of lands, to be so settled as that William Goodman, his nephew, 
 should have an estate therein for his life only, and in case William 
 Goodman did not do such acts as should be necessary whereby to limit 
 the said land so to be purchased as that he might only have an estate 
 for life therein, and likewise to bar himself of all other claims and 
 demands in, unto, or out of the estate of George Goodman, then he 
 *devised to the said William 40/. only. Jane, the testator's r^f^Q-iQ-i 
 widow, was his administratrix. She paid William Goodman L J 
 300/. on account of the 1,000/., and advanced him 200/., which two 
 sums he laid out in the purchase of land, and then died, leaving two 
 children, George, who afterwards died, and the defendant, Jane Fletcher, 
 both at that time infants. The defendant Cockerell was the guardian of 
 these children, and on their behalf entered into an agreement with Jane, 
 the administratrix of the testator, by which it was arranged that the 
 200/. advanced by her to William should go in further part of the 1,000/., 
 and she should pay to Cockerell the remaining 500/., which was accord- 
 ingly paid, whereon he conveyed certain land to Jane, the administra- 
 trix, and to the defendant Newton, as a security that the 300/., the 200/., 
 and 500/. should be laid out and settled according to the intent of the 
 testator. Elizabeth, the late wife of the plaintiff, Thomas Chapman, 
 {m) 3 B. P. C. Toml. ed. 1.
 
 718 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 was the heir-at-law of the testator, and the other plaintiff, Roger, was 
 Thomas Chapman's son. Jane, the administratrix of the testator, died, 
 and there is no statement in the pleadings as to any representation of 
 the testator's estate having been obtained after her death. The plaintiffs 
 were the surviving husband of the heiress of the testator, and his son, 
 and the defendants were Newton, the trustee, and Cockerell (who had 
 entered into the arrangement, and who had received the 700?., and who 
 was also administrator to William Goodman,) and Jane, the only surviv- 
 ing child of "William Goodman; and the object of the bill was, to have 
 it declared the 1,000?., or the land purchased with it, belonged to Eliza- 
 beth, the heiress of the testator, as against the children of William 
 Goodman. On the part of the defendant Cockerell, it was insisted the 
 whole administration to the testator had been granted to Gabriel Good- 
 man, with Jane : he died in the lifetime of Jane, and they had agreed 
 the testator's debts and legacies should be paid, and to that end the 
 securities in writing concerning his personal estate should be deposited 
 in the hands of the defendant Newton. He then stated a suit, after the 
 death of William Goodman, to which Elizabeth Chapman, the heiress of 
 the testator, was party, in which a decree was made in 1680, to take 
 accounts of the testator's estate. He then stated the estate so conveyed 
 by Cockerell to Jane, as administratrix to the testator, had been settled 
 on Jane and George, the two children of William Goodman ; the other 
 part of the 1,000/. had been invested on mortgage; and insisted that 
 Jane Fletcher, the only surviving child of William Goodman, was entitled. 
 The defendant Newton, by his answer, represented himself solely as a 
 trustee of the land conveyed by Cockerell, and submitted to act as the 
 court should direct. By the decree it was declared, that, the testator 
 having declared that William Goodman should have an estate for life 
 only, the 1,000/., or land purchased therewith, belonged to the testator's 
 heir-at-law, and not to the children of William Goodman. It directed 
 the payment of the 700/. received by Cockerell from Jane, the adminis- 
 tratrix of the testator, and an account, and payment of the rents of 
 three-fifths of the land purchased by William Goodman, and a conveyance 
 of the three-fifths, and the other two-fifths of the rents of this land to be 
 paid to the defendant, Jane Fletcher; the plaintiff, Thomas Chapman, 
 to have the whole of the 700/., and the interest of three-fifths of the 
 land, for his life, and afterwards to his son, the other plaintiff. It is- 
 quite clear, in this case, there was no contest between the real and per- 
 sonal representative of the testator, George Goodman. There was no 
 personal representative before the court. It was said in the argument 
 P9201 *^° *^^ ^^^^ ^^^ before me, that Newton represented in fact the 
 L -J personal estate, because it had been assigned to him. There is 
 no trace of this in the pleadings of record : it is undoubtedly stated in 
 Cockerell's answer, that by articles in 1773, it was agreed between Jane, 
 the widow, and Gabriel, the administrator of the testator, the testator's 
 debts and legacies should be paid, and to that end the securities and 
 writings concerning his personal estate should be deposited in the hands 
 of the defendant Newton. This was only to insure the arrangements 
 between the parties, and gave Newton no interest in the property ; and
 
 APPENDIX. 719 
 
 he does not claim any. From tliis decree tlie child of William Good- 
 man appealed, and Chapman, representing the heir of the testator, was 
 respondent. It is reported in 3 B. P. C. 1. But here, also, it is obvi- 
 ous there was no question between the real and personal representative 
 of the testator. Jane, his administratrix, had paid the 1,000^., and no 
 person representing his personal estate was in any way a party to the 
 contest. It is a case in which the heir was declared entitled to the 
 money directed to be laid out in land, not to any declared purpose which 
 failed, but for the limited interest, that is, for the life of William Grood- 
 man ; but it is not a decision that, even in that case, the heir was entitled 
 against the personal representative. No such case was made by the 
 pleadings, or argued, or decided^ and, there being no party to raise that 
 question, this case therefore decides nothing as to the present matter in 
 contest. Greaves v. Case, as reported 1 Vesey, jun., 548, would appear 
 to be an authority for the heir, but in the report of the same case, 2 
 Cox, 301, it is stated the plaintiff was both-heir-at law and next of kin, 
 and therefore entitled in one character or the other : it was not discussed 
 in what character he took, and the point decided was a different one. 
 Many cases were cited against the claim of the heir, but as they were 
 either to establish general principles, which I do not consider in dispute, 
 or with reference to the point in the case, to which the opinion I have 
 formed on this particular point makes it needless for me to advert, I do 
 not think it necessary to examine them in detail. I may observe, no case 
 was cited against the heir in which the point now contended for by him 
 was directly raised and decided. It was argued, indeed, that Abbot v. 
 Lee(?i) was precisely this case : but it appears the decision, although 
 against the testator's heir, was not in favour of his personal representa- 
 tive, but gave the 550?. and 1501. to the representative of Mary, the 
 legatee, considering that her interest in these sums was absolute. There 
 are, however, some of the cases cited for the defendant, which, although 
 nor precisely the case before me, are most important, as showing, that 
 when the whole object of the bequest of money to be converted into 
 land fails, the personal representative is entitled, and as showing the 
 question of conversion of money into land, and land into money, has by 
 the highest authority been considered as regulated by the same rules. 
 Such are the cases of Robinson v. Taylor,^^) Townley v. Bedwell,(ji:>) 
 besides others, to which I need not refer. The result of the whole 
 authorities seems to be, that before Ackroyd v. Smithson no distinction 
 was recognized between the doctrine as applicable to a conversion of 
 money into land, or land into money — that as to both an opinion 
 prevailed, that when a conversion was necessary, and part of the object 
 failed, the unappropriated proceeds belonged to that representative on 
 whom the law cast that description of property in which such proceeds 
 *were found to exist. This, as to land converted into money was p^„(^„ 
 corrected in Ackroyd v. Smithson ; but no case has occurred in L "'J 
 which the point has been argued and determined as to money converted 
 into land. I say argued and determined, because, if determined in Leslie 
 
 (n) 2 Vern. 284. (o) 2 B. C. C. 555 ; 1 Yes jun. 45. (ja) 6 Yes. 194.
 
 720 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 V. The Duke of Devonshire and Fletcher v. Chapman, it certainly was 
 not argued; but there are undoubtedly fZ^'cfa of very eminent judges, 
 since that time, which seem to show an impression on their mind, that 
 the principle of Ackroyd v. Smithson was not to be applied to a conver- 
 sion of money into land. Those learned judges had not the benefit, 
 which I have had, of hearing the point fully and most ably argued; and 
 having, after the fullest consideration, come to the conclusion that that 
 principle does apply to the present case, and as I am not bound by any 
 of the authorities to maintain a distinction which was not originally sup- 
 posed to exist, and which cannot be maintained in reason, and which, 
 therefore, if maintained, would be a reproach to the law as it stands, I 
 feel myself fully justified in preserving the uniformity of the rule, as 
 applicable to the two cases, by deciding against the claim of the plain- 
 tiff; and I may be allowed to express some satisfaction in finding I am 
 not compelled by authority to hold that any heir should take, as such, 
 what had no inheritable quality, but was pure personal estate, at the 
 time of the ancestor's death, or that, as devisee, he should take that 
 which was never destined for him, but was in most unquestionable terms 
 given to another. One other point was made for the heir, to which now 
 I will very shortly allude. It was said as the testator had directed the 
 estate should be purchased and remain in his name, his heir must have 
 been a trustee of it, and, if it had been so purchased and so vested in 
 the heir, there would be no equity on the part of the next of kin, as 
 against the heir, to convert this land into money. That proposition fails 
 in all its parts : there is nothing to show the heir is to be a trustee : the 
 heir might indeed have borne a different name : if he had been a trus- 
 tee, he would have held it as a trustee, and not as heir. And the rule, 
 that there are no equities between representatives, would have had no 
 application ; and if it had, it would have been fatal to the claim of the 
 heir, who now seeks, after all the purposes of the will are answered, to 
 convert to his own benefit, against the next of kin, what was money at 
 the testator's death, and has ever since so remained. The argument of 
 John James Stevens, the plaintiff, rests on the supposition that the 
 30,000?. ought to be considered as land as between the real and personal 
 representative ; and as my judgment is against the validity of such claim, 
 the bill must be dismissed, but without costs. I have some reluctance 
 in refusing to give the defendants the costs, because, in general, I think 
 that those who try the experiment of a claim should pay the expenses of 
 it if they fail, however reasonable the ground may have been for trying 
 it ; but this question is so involved in difficulty, from what has taken 
 place and been said in courts of equity at different times, and arises so 
 much from the act of the testator, from whom both claim, that I think 
 it fair each party should bear their own costs."
 
 APPENDIX. 721 
 
 *No. IV. [*922] 
 
 Supra, p. 568. 
 Appointment of new Trustee of Stock. 
 
 This Indenture, nicade the day of between E. F. of 
 
 and G-. his wife (the donees of the 2:>oiver,) of the first part ; 
 A. B. of (the continuing trustee,) and C. D. of {the 
 
 retiring trustee,) of the second part, and I. K. of [the new 
 
 trustee,) of the third part : Whereas, by an indenture of settlement bear- 
 ing date the day of , and made or expressed to be made 
 between, &c., being the settlement made in contemplation of the mar- 
 riage then intended and soon afterwards solemnized between the said E. 
 F. and G., his wife, after reciting that a sum of I. three per cent, 
 consolidated bank annuities had been transferred into the joint names of 
 the said A. B. and C. D. in the books of the Governor and Company of 
 the Bank of England, It was witnessed, that for the consideration therein 
 mentioned, it was thereby agreed and declared, that the said A. B. and 
 C. D., and the survivor of them, and the executors, administrators, and 
 assigns of such survivor, should stand possessed of and interested in the 
 said sum of I. three per cent, consolidated bank annuities, upon 
 trust, from and after the solemnization of the said marriage, to pay the 
 dividends, interest, and annual produce thereof unto the said E. F. and 
 his assigns, for his life, and after his decease, unto the said G. F. and 
 her assigns, for her life, and after her decease, upon the trusts therein 
 particularly mentioned for the benefit of the issue of the said marriage; and 
 by the said indenture now in recital it was provided (rectVepoifer 0/ 
 appointment of new trustees limited to E. F. and G. his wife, and 
 the usucd direction for transfer of the trust fund, and declaration as^ to 
 the powers of trustees :) And whereas the said C. D. is desirous of being 
 discharged from the trusts of the said indenture, and the said E. F. and 
 Gr., his wife, are desirous of appointing the said I. K. to be a trustee in 
 the place of the said C. 1). ; And whereas the said sum of ^ I. three 
 per cent, consolidated bank annuities is intended to be forthwith trans- 
 ferred by the said A. B. and C. D. into the joint names of the said A. 
 B. and I. K. in the books of the Governor and Company of the Bank of 
 England : Now this indenture witnesseth, that in pursuance of the said 
 desire on the part of the said E. F. and G., his wife, and by force and 
 virtue and in exercise and execution of the power or authority by the 
 said recited indenture limited to the said E. F. and G. his wife, and of 
 every other power or authority in anywise enabling them or either of 
 them in his behalf, they, the said E. F. and G. his wife, do and each of 
 them doth by this deed or instrument in writing sealed and delivered by 
 them in the presence of and attested by the two credible persons whoso 
 names are hereupon indorsed as witnesses to the sealing and delivery 
 hereof by the said E. F. and G. his wife,(<2) nominate and appoint the 
 
 (q) The instrument executing the power must of course be in conformity with 
 the terms of the powei*.
 
 722 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 said I K to be a trustee in the place of tlie said C. D. for the purposes 
 of the said indenture, or such of them as are now subsisting and capable 
 of taking effect ; And it is hereby agreed *and declared that the 
 [*923] g^.^ j^ -g_ ^^^ J j^^ and the survivor of them, and the execu- 
 tors administrators, and assigns of such survivor, shall stand and be pos- 
 sessed of and interested in the said sum of I. three per cent, con- 
 solidated bank annuities, when and so soon as the same shall have been 
 transferred into the joint names of the said A. B. and I. K., and of and 
 in the dividends, interest, and annual produce thereof, upon and for the 
 trusts, intents, and purposes, and with, under, and subject to the powers, 
 provisoes, agreements, and declarations in and by the said indenture of 
 settlement expressed and declared of and concerning the same or such of 
 the said trusts, intents, and purposes, powers, provisoes, agreements, and 
 declarations as are now subsisting and capable of taking effect. In wit- 
 ness, &c. 
 
 No. V. 
 
 Suprs, p. 568. 
 Appointment of new Trustee of Chattels. 
 
 This Indenture, made the day of , between A. B. of 
 
 (the surviving trustee) of the first part ; E. F. of [party 
 
 heneficially interested and s^ii juris){r) of the second part; G. H. of 
 (new trustee) of the third part; and I. K. of , 
 
 (provisional trustee) of the fourth part. \_Recite creation of trust of 
 chattels, real or personal, in favour of E. F. for life, with limitations 
 over, and a power of appointment of new trustees to the continuing or 
 surviving trustee, hy deed or tcriting under hand and seal, with the usual 
 direction for the transfer of the trust estate and the declaration as to 
 powers.'] And whereas the said C. D. departed this life on or about the 
 day of , leaving the said A. B. his co-trustee him surviv- 
 
 ing; and whereas the said A. B. is desirous of appointing the said G. 
 H. to be a trustee of the said recited indenture, in the place of the said 
 C. D. deceased: Now this indenture witnesseth, that in pursuance of such 
 desire, and by force and virtue, and in exercise and execution of the power 
 or authority by the said recited indenture limited to the said A. B. and of 
 every other power or authority inany wise enabling him in this behalf, he 
 the said A. B. (with the full consent and approbation of the said E. F., 
 testified by his being a party to, and executing these presents) doth by this 
 deed or writing under his hand and seal, nominate and appoint the said G. 
 H. to be a trustee in the place of the said C. D., deceased, for the purposes 
 of the said indenture or such of them as are now subsisting and capable 
 of taking effect. And this indenture further witnesseth, that in pursu- 
 ance of the direction in this behalf in the said recited indenture con- 
 tained, he the said A. B. (with the full consent and approbation of the 
 
 (r) Though not a donee of the power, any party beneficially interested, who is 
 sui juris, may properly join in the appointment.
 
 APPENDIX. 723 
 
 said E. F. testified as aforesaid) doth bargain, sell, and assign unto the 
 said I. K., his executors and administrators, all and singnlar (describe 
 the chattels, real or personal, %oith the proper app%irtenances,\ and all the 
 estate, &c. To have and to hold the said {chattels, real or personal\ unto 
 the said I. K., his executors and administrators, {or for all the residue 
 and remainder now to come and unexpired of the said term of 
 years) upon trust, *and to the intent that the said I. K., his exe- r;):Q9 ^-i 
 cutors or administrators, may forthwith assign the same {or L "" J 
 hereditaments for all the residue of the said term) unto the said A. B. 
 and G. H., their executors, administrators, and assigns, upon and for 
 the trusts, intents, and purposes, and with, under, and subject to the 
 powers, provisoes, agreements, and declarations, in and by the said recited 
 indenture expressed and declared, of and concerning the same or such 
 of the said trusts, intents, and purposes, powers, provisoes, agreements, 
 and declarations as are now subsisting and capable of taking effect. In 
 witness, &c. 
 
 Re-assignment to Tjc indorsed. 
 
 This Indenture made, &c., between the within named I. K. of the one 
 part, and the within named A. B. and Gr. H. of the other part, Witnesseth, 
 that in pursuance of the trust in the within written indenture in this 
 behalf contained, he the said I. K. doth bargain, sell, and assign unto 
 the said A. B. and Gr. H., their executors, administrators, and assigns, 
 all and singular (the chattels, real or personal, with tlieir appurtenances^ 
 by the within written indenture assigned to the said I. K., his execu- 
 tors and administrators, and all the estate, &c. To have and to hold all 
 and singular (^Ae chattels, real or personal, with the ap>purtenances\ unto 
 the said A. B. and Gr. H. their executors, administrators, and assigns, 
 {or for all the residue and remainder now to come and unexpired of the 
 said term of years, upon and for the trusts, intents, and purposes, 
 
 and with, under, and subject to the powers, provisoes, agreements, and 
 declarations in and by the within written indenture expressed and declared 
 of and concerning the same {or hereditaments) or such of the said trusts, 
 intents, and purposes, powers, provisoes, agreements, and declarations, 
 as are now subsisting, and capable of taking effect. In witness, &c. 
 
 Some add a covenant hy I. K. against incnmhrances. 
 
 No. VI. 
 Supra, p. 569. 
 
 Ap)pointment of new Trustee of Freeholds hy single Deed. 
 
 This Indenture, made the day of , between A. B. of 
 
 (sui-viving trustee^ of the first part ', E. F. of , (party 
 
 heneficicdJy interested) of the second part ; Gr. H. of , {relessee 
 
 to uses\o{ the third part; and I. K. of {new trustee'^ of the fourth 
 
 part. VRecite conveyance of freehold estates unto and to the use of A. B. 
 and C. D., and their heirs, upon the trust therein mentioned, with a
 
 724 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 power ofajipointmentofnew trustees to the continuing or surviving trus- 
 tee, and the usual direction for transfer of the estate and declaration as 
 topowers.l And whereas the said C. D. departed this life on or about 
 the day of , leaving the said A. B. his co-trustee him 
 
 surviving. And whereas the said A. B. is desirous of appointing the 
 said I. K. to be a trustee of the said recited indenture in the place of 
 the said C. D. deceased. Now this indenture witnesseth, that in pur- 
 suance of such desire, and by force and virtue, &c. [Insert ajipoint- 
 ment hy A. B., of I. K-, to he trustee in the place of C. D., as in Appen- 
 dix, No. V.l And this indenture further witnesseth, that in 
 [ ^-^^J *pursuance of the direction in this behalf in the said recited in- 
 denture contained, the said A. B. ( with the full consent and approbation 
 of the said E. F. testified as aforesaid) doth by these presents grant and 
 release unto the said I. K. and his heirs, all and singular [clescrihe the 
 freeholds with their ajipurtenances,'] and the reversion, &c., and all the 
 estate, &c., To have and to hold the said (^freeholds icith their appurte- 
 nances) unto the said I. K. and his heirs, to the use of the said A. B. 
 and I. K., their heirs and assigns, upon and for the trusts, intents, and 
 purposes, and with, under, and subject to the powers, provisoes, agree- 
 ments, and declarations, in and by the said recited indenture expressed 
 and declared of and concerning the same, or such of the said trusts, 
 intents, and purposes, powers, provisoes, agreements, and declarations as 
 are now subsisting and capable of taking elFect. In witness, &c. 
 
 No. VII. 
 
 Supra, 569. 
 
 Appointment of new Trustee of Freeholds hy two Deeds. 
 
 This Indenture, made the day of , between A. B. 
 
 of , {continuing trustee,) and C. D. of , [retiring 
 
 trustee,') of the first part ; E. F. of , and G. his wife (tenants 
 
 for life) of the second part; I. K. of , [new trustee) of the 
 
 third part; and L. M. of , (j^rovisional trustee) of the fourth 
 
 part. Whereas, by indentures of lease and release, bearing date respec- 
 tively, &c., and made or expressed to be made between, &c., (being the 
 settlement made in contemplation of the marriage then intended, and 
 soon afterwards solemnized, between the said E. F. and G. his wife) for 
 the consideration therein mentioned, &c. [Recite i-elease to A. B. and C. 
 D. and their heirs, to the use of B. F. and G. 11. successively for life, 
 with remainders over, and poioer of ap-pointment of new trustees to the 
 surviving or continuing trustee, with the consent of E. F. and G. H.j 
 during their lives, &c.~\ And by the said indenture of release and set- 
 tlement now in recital, it was provided, that in case the said A. B. and 
 C. 1)., or either of them, or any trustee to be appointed as thereinafter 
 mentioned, or their or any of their heirs should die, or be desirous of 
 being discharged from, or refuse, or decline, or become incapable to act 
 in the trusts thereby declared before the same should be fully executed, 
 it should be lawful for the said A. B. and C. D., and the survivor of 
 
 i
 
 APPENDIX. 725 
 
 them, and the executors and administrators of such survivor, with the 
 consent and approbation of the said E. F. and G. H., during their lives, 
 and of the survivor of them, during his or her life, and, after the death 
 of such survivor, at their or his sole discretion, by any writing or writ- 
 ings under their or his hands and seals, or hand and seal, to nominate 
 and appoint any other person or persons to be a trustee or trustees in the 
 place of the trustee or trustees so dying, or desirous of being discharged 
 from, or refusing, declining, or becoming incapable to act as aforesaid ', 
 and that, upon such nomination and appointment, the said trust estates 
 should, with all convenient speed, be conveyed and assured in such man- 
 ner that the same might be legally and effectually vested in such new 
 trustee jointly with the surviving or continuing trustee; or, in case 
 there should be no surviving or continuing trustee, then in such new 
 trustee or trustees only, to, for, and upon the *uses, trusts, in- r*g261 
 tents, and purposes thereinbefore expressed and declared of and L ■" J 
 concerning the same ; and it was thereby declared, that every such new 
 trustee should in all things act in the said trusts, and with the same 
 powers and authorities as if he had been originally appointed a trustee 
 by the said indenture of release and settlement now in recital. And 
 whereas the said C. J), is desirous of being discharged from the trusts of 
 the said indenture of release and settlement, and the said A. B. is desi- 
 rous, with the consent of the said E. F. and G. his wife, of appointing 
 the said I. K. to be a trustee in the place of the said CD.: Now this 
 indenture witnesseth, that in pursuance of such desire on the part of the 
 said A. B., and by force and virtue, and in exercise and execution of the 
 power or authority in that behalf limited to him by the said indenture 
 of release and settlement, and of every other power or authority in any- 
 wise enabling him in this be half, he the said A. B., with the consent and 
 approbation of the said E. F. and G. his wife (testified by their respec- 
 tively being parties to and executing these presents,) doth by this deed 
 or writing under his hand and seal, nominate and appoint the said I. K. 
 to be a trustee in the place of the said C D. for the purposes of the said 
 indenture of release and settlement, or such of them as are now subsist- 
 ing and capable of taking effect. And this indenture further witnesseth, 
 that in pursuance of the direction in this behalf contained in the said 
 indenture of release and settlement, and by force and virtue, and in exer- 
 cise and execution of the power or authority by the same indenture for 
 this purpose given to the said A. B. and C. D., or either of them, and 
 of every other power or authority in anywise enabling them or either of 
 them in this behalf, they the said A. B., and C. D. do and each of them 
 doth by these presents revoke, determine, and make void all and every 
 the uses, trusts, intents, purposes, powers, provisoes, agreements, and 
 declarations in and by the said indenture of release and settlement 
 limited, expressed, declared, and contained, and now subsisting and 
 capable of taking effect, of or concerning the freehold estates and here- 
 ditaments hereinafter described or referred to, and of and concerning 
 their rights, members, and appurtenances, and do and each of them doth 
 direct, limit, and appoint that the same freehold estates and heredita- 
 ments, with their appurtenances, shall henceforth go, remain, and be to
 
 726 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 tlie use of the said L. M., and his heirs, upon the trust and to the intent 
 hereinafter expressed. And this indenture further witnesseth, that in 
 further pursuance of the direction in the said indenture of release and 
 settlement, in this behalf contained, the said A. B. and C. D. do and 
 each of them doth by these presents, grant and release unto the said L. 
 M., and his heirs, all and singular {tlie freeliold hereditaments,') and all 
 other, if any, the hereditaments and premises comprised in the said in- 
 denture of release and settlement, with their rights, members, and appur- 
 tenances, and the reversion, &c., and all the estate, &c. To have and to 
 hold the said {freelioJd hereditaments,') and all and singular other the pre- 
 mises hereby released or intended so to be, with their rights, members, 
 and appurtenances unto the said L. M. and his heirs, to the use of the 
 said L. M. and his heirs, upon the trust and for the intent hereinafter 
 expressed. And it is hereby agreed and declared, between and by the 
 parties hereto, that the said hereditaments and premises hereinbefore 
 mentioned or referred to, with their appurtenances, are hereinbefore 
 appointed and released to the use of the said L. M. and his heirs upon 
 trust, that the said L. M. or his heirs may forthwith convey the same 
 hereditaments and premises, with their appurtenances, unto *the 
 L "■ -I said A. B. and I K., and their heirs, to the uses upon and for 
 the trusts, intents, and purposes, and with, under, and subject to the 
 powers, provisoes, agi-eements, and declarations, to, upon, for, with, 
 under, and subject to which the said hereditaments and premises, with 
 their appurtenances, would now, under and by virtue of the said inden- 
 ture of release and settlement, stand and be limited, or subject, in case 
 this present indenture had not been executed, and the said I. K. had 
 been originally made a relessee to uses, in and by the said indenture of 
 release and settlement, instead of the said C. D., and accordingly the 
 name of the said I. K. had in the said indenture been inserted through- 
 out, instead of the name of the said C. D. \ Covenant hy C. D. against 
 incumbrances.'^ In witness, &c. 
 
 Reconveyance to lie indorsed. 
 
 This Indenture made the day of , between the 
 
 within named L. M. of the one part, and the within named A. B. and 
 I. K. of the other part, Witnesseth, that in pursuance of the trust in 
 the within written indenture in this behalf contained; he the said L. M. 
 doth by these presents, grant and release unto the said A. B. and I. K., 
 and their heirs, all and singular the hereditaments and premises, by the 
 within written indenture appointed and released to the use of the said 
 L. M. and his heirs, with their rights, members, and appurtenances, and 
 all the estate, &c. To have and to hold the said hereditaments, and 
 premises hereinbefore released, or intended so to be, unto the said A. B. 
 and I. K., and their heirs, to the uses, upon and for the trusts, intents, 
 and purposes, and with, under, and subject to the powers, provisoes, 
 agreements, and declarations, to, for, upon, with, under, and subject to 
 which the same hereditaments and premises would now, under, and by 
 virtue of the within recited indenture of release and settlement stand
 
 APPENDIX. 727 
 
 and be limited or subject, in case the within written indenture, and 
 these presents had not been executed, and the said I. K. had been 
 originally made a relessee to uses, and trustee in and by the said within 
 recited indenture of release and settlement, instead of the within named 
 C. D., and accordingly the name of the said I. K. had in the same 
 indenture been inserted throughout, instead of the name of the said C. D. 
 In witness, &e. 
 
 Some add a covenant hy I. K. against incumJj ranees. 
 
 No. VIII. 
 Sands v. Nugee. Supra, p. 533. 
 
 July 5th, 1836. 
 
 The Duke of Koxburgh, by will dated November 5th, 1803, gave all 
 his estates, real and personal, to John Wanchope* and James Dundas 
 upon trust to sell, &c., " with full power to each of the trustees before 
 named or to be named by the testator, who should accept of the trust, 
 to name and appoint any other person he pleased to succeed himself in 
 the trust thereby created after his own decease, and also to the said 
 ^nominees to name other persons to succeed to them respectively |-:(:Q9q-i 
 in the said trust after their death, and that from time to time, L *^ J 
 and at all times coming, aye, and until the trust should be completely 
 executed, and the purposes thereof fulfilled. And also with power to 
 the said trustees named or to be named by the testator, or to be assumed, 
 as said was, accepting and surviving, or their quorum aforesaid, to 
 assume and appoint any person or persons they pleased as joint trustees in 
 the trusts thereby granted in place of any former trustee or trustees 
 named or to be named by the testator, and assumed as aforesaid, who 
 should decline to accept, or who should leave Britain or go abroad, or who 
 should have deceased without naming a successor or successors to himself 
 or themselves in the trust thereby created, and which trustees so to be 
 assumed should have as full and ample power as was given to the trustees 
 thereby appointed." 
 
 The duke, a short time before his death, executed a deed of instruc- 
 tions in the nature of a codicil, in which he gave certain directions as to 
 the application of the proceeds of the sale, and died in March, 1804. 
 
 Mr. Dundas disclaimed both as trustee and executor. Mr. Wanchope 
 took out probate, and acted as trustee, and, in 1829, died, having, by 
 will, dated in 1823, appointed John Spottiswoode, David Robertson, 
 and Warren Hastings Sands to succeed him in the trusts of the duke's 
 will, and devised and bequeathed to them all the trust estates. 
 
 Spottiswoode and Robertson disclaimed, and Sands alone proved Wan- 
 chope's will, and acted in the trusts. 
 
 Sands put up certain premises to auction, and by the sixth condition 
 of sale it was provided that " every purchaser should accept and be satis- 
 fied with a conveyance from the trustee then acting in the execution of the 
 
 *(?«. "Wauchope.
 
 728 
 
 LEWIX ON THE LAW OF TRUSTS, ETC. 
 
 trusts of the said will and codicil, by tlae latter of which it was declared 
 that purchasers should be effectually discharged and secured by the con- 
 veyances, releases, or discharges of such trustee." 
 
 Mr. Nugee became the purchaser, and signed the agreement, but 
 afterwards objected to the title, on the ground, in the words of the joint 
 opinion of two eminent conveyancers, " that the devise in the will of 
 John Wanchope to three trustees was not a valid exercise of the power 
 which authorized each of the trustees to appoint any other person he 
 pleased to succeed himself in the trusts thereby created after his own 
 decease, and that the power which followed, to appoint any person or 
 persons they pleased as joint trustees, did not apply to the case which 
 had happened. That the purchaser was not bound by the sixth condi- 
 tion of sale to accept and be satisfied with a conveyance from the acting 
 trustee under the will of John Wanchope as the trustee then acting in 
 the execution of the trusts of the will and codicil ; for it could not be 
 intended to exclude the purchaser from objecting that the party was not 
 a trustee authorized to act in the trusts." Sands filed a bill for specific 
 performance ; and, the master haviag reported that a good title could be 
 made " according to the contract," the defendant excepted to the report. 
 Nugee was a willing purchaser; and the point arising upon the power 
 was suggested to the court without being argued. The vice-chancellor 
 was of opinion that Sands had been duly appointed under the power, and 
 overruled the exception, with costs. 
 
 [*929] *No. IX. 
 
 Supra, p. 707. 
 Cases on Gifts to Relations. %\ 
 
 In Thomas v. Hole(s) a testator gave 500/. " to the relations of Eliza- 
 beth Hole, equally to be divided between them ;" and Lord King deter- 
 mined, that, as the testator had directed the sum to be divided cijually 
 among them, he could not direct an unequal distribution, and so decreed 
 the brothers and nephews of Elizabeth Hole to take jicr capita. 
 
 In Stamp v. Cooke(^) there occurs a dictum of Lord Kenyon which 
 appears to militate against this construction. « If the testator," said his 
 lordship, " had given to his next of kin, and stopped there, the statute 
 would be the rule to go by; and although the nephews and nieces are 
 not in fact so near as sisters, yet the fund would have been distributable 
 per stiqjcs according to the statute." But the question to which his 
 lordship's attention was directed was, whether an o?t(y child of a deceased 
 brother, and an otdi/ child of a deceased sister, should, per stirjyes, repre- 
 sent their deceased parents, or should be excluded altogether in favour 
 of brothers and sisters of the testator still living, and who, as next or 
 nearest of kin, would more nearly answer the description in the will. 
 
 In Phillips V. Garth,(») where the expression was also " next of kin," 
 
 («) Cas. t. Talb. 251. (t) i Cox, 236. (w) 3 B. C. C. 64.
 
 APPENDIX. 729 
 
 a diflferent construction prevailed. A testator gave his residuary estate 
 to liis executors, "to be equally divided by them to and amongst his 
 next of kin, share and share alike:" and. Mr. Justice BuUer held the 
 words " next of kin" to mean the kinsmen within the statute,^?;) and 
 distributed the fund amongst the brothers and nephews per capita. 
 Here, as in Thomas v. Hole, was the qualification '' equally to be 
 divided;" but jMr. Justice Buller did not ground his judgment upon 
 that circumstance, but upon what he considered the established practice 
 of the court. " Those," he said, " must take whom the statute has 
 pointed out; but the question is, in what shares: if it had pleased the 
 court originally to say the next of kin should take in the same manner 
 as under the statute, I should not have objected to it; for it seems to 
 me they should take ])er stirpes ;" and then he cited a case, to prove 
 that distribution per capita was a point which the court had now settled. 
 Why he should have thought the objects might originally have taken jjcj- 
 stirpes he docs not declare, but he afterwards added a very substantial 
 reason why they should not, for " it is agreed," he said, " if the testator 
 had given to his next of kin by name, they must have taken per capita ; 
 then the question is, whether calling them next of kin is not equal to 
 naming them." 
 
 It was observed by Sir J. Leach upon one occasion, that Lord Eldon 
 had disapproved of the distribution made in Phillips v. Garth ; but this 
 remark will, upon reference to the passage alluded to, be found to be 
 wholly destitute of foundation. A testator had given the residue of his 
 estate '< to be divided among his next of kin, as if he had died intestate." 
 The widow claimed to be one of the next of kin, and it was argued for 
 *her, that otherwise there would be no meaning in the words t-^nym 
 "as if he had died intestate;" but Lord Eldon answered the L ' J 
 argument by saying, " There is another construction (that will give a 
 meaning to these words.) I always had great doubt upon the case before 
 Mr. Justice Buller, who thought those who were to take per stirpes as 
 well as those taking p)er capita were included (in the expression ' next 
 of kin.') Lord Thurlow doubted that upon this very technical reason- 
 ing, to which his lordship was much addicted in the construction of these 
 instruments, that 'next of kin' being the only description (in the will) 
 without the addition, which is in the statute, of those who represent 
 them, the children of the deceased brothers and sisters ought not to take 
 under that bequest. It is very difficult to say they would not have taken 
 under this will (which contains the words 'as if I had died intestate :') 
 my construction being that the next of kin should take the whole, as 
 they would take under an intestacy. "(?r) The meaning of the passage 
 therefore appears to be simply this, " I do not admit the argument for 
 the wife, that the expression < as if I had died intestate' would otherwise 
 be nugatory; but for those words I think brothers and sisters only would 
 take, notwithstanding the decision to the contrary in Phillips v. Garth : 
 with the addition of those words, my construction of the will is, that 
 
 (f) Upon this point the case has been overruled bv Elmsley v. Young, 2 M. & 
 K. Y80. 
 
 (if) Garrick v. Lord Camden, 14 Yes. 385. 
 MAY, 1858.^7
 
 730 LEW IX ON THE LAW OF TRUSTS, ETC. 
 
 nephews and nieces would be entitled equally with the nearest of 
 kin."(a;) 
 
 We cannot cite a higher authority upon this subject than the opinion 
 of Lord Thurlow. ''The term 'relations/" observed his lordship, 
 "must be confined to the statute; but the court has said in the same 
 moment, that the claimants shall not always take in the j^^ojiortions of 
 the statute, but as the testator had directed; as where there have been 
 brothers and brothers' sons, these last took not hy representation, but 
 per capita." [y) 
 
 And in conformity with this dictum was decided by his lordship the 
 case of Rayner v. Mowbray. (2;) A testator devised an estate to A. upon 
 trust to sell and "to divide and pay the proceeds to and among all and 
 every such person or persons who should appear to be related to the 
 testator, share and share alike." The testator left three sisters surviv- 
 ing and five nieces, the daughters of a deceased sister, and Lord Thurlow 
 directed the distribution to be made among the eight next of kin per 
 capita. {a^ 
 
 In Pope V. Whitcombe,(i) which was heard before Sir W. Grant, a 
 testator gave the residue of his estate to his wife for life, and directed 
 her to dispose thereof (in an event which occurred) " amongst the testa- 
 tor's relations in such manner as she should think fit." The wife died 
 without having executed the power, and the next of kin at the testator's 
 death were a brother and two nephews. The court, says the reporter, 
 decreed one moiety to the brother, and the other to the representatives 
 of the nephews. The authority of so great a lawyer as Sir W. Grant 
 would almost have decided the question; but, on reference to the regis- 
 trar's book, it appears a very different order was made. The two nephews 
 had died in the lifetime of the widow, and at her death the only surviv- 
 ing next of kin of the testator was the brother. The brother died and 
 r*QQn *^PPoii^ted executors, and the court decreed the residuary estate 
 L J " to the executors of the brother, the next of kin of the testator." 
 Pope V. Whitcombe therefore is no authority upon the point in discus- 
 sion. 
 
 The bequest in Hinckley v. Maclarens(c) was, that the testator's pro- 
 perty "should be equally divided among his next of kin," and Sir John 
 Leach directed the distribution among the next of kin to be made per 
 stirpes. A similar decree was afterwards made by him in the case of 
 Elmsley v. Young. (fZ) But the decision in these two cases was directly 
 contradictory to Thomas v. Hole, Rayner v. Mowbray, and Phillips v. 
 Garth. His Honor seems not to have been apprised of the point deter- 
 mined in the two former cases ; and, with respect to Phillips v. Garth, 
 he laboured under the erroneous impression, that Lord Eldon had ex- 
 pressed his disapprobation of that case. In Withy v. Mangles, 4 Beav. 
 
 [z) And see Wright v. Atkyns, Coop. 119. 
 
 {y) Green v. Howard, 1 B. C. C. 33. (z) 3 B. C. C. 234. 
 
 (a) For the mode of distribution which does not appear in the report, see Reg. 
 Lib. B. 1191, fol. 183. 
 
 (b) 3 Mer. 689. See Finch v. Hollingsworth, 21 Beav. 112 ; 2 Sug. Pow. 650. 
 6th Edition. 
 
 (c) 1 M. & K. 27. (d) 2 M. & K. 82.
 
 APPENDIX, 731 
 
 358, 10 CI. & Tin. 215, the limitation of personal property, was on the 
 death of E. M., to her " next of kin." E. M. died, leaving a father, 
 mother, and a child, and it was held that they took as joint tenants. (1) 
 
 No. X. 
 Allen V. Sayer. Supra, p. 720. 
 
 "■ The substance of the plaintiff's bill appeared to be, that Thomas 
 Brooke, Gent., deceased, was in his lifetime seised in fee of a certain 
 messuage or tenement called Drewes, and of several lands and tenements 
 thereunto belonging, lying in the parish of Wanting; and was also seised 
 of a certain parcel of land and meadow in Sutton Courtney, in the 
 county of Berks, of the yearly value of 101. per annum : and, having 
 no issue of his body (the plaintiff being his near kinsman,) did make 
 his last will and testament in writing, and after his mother's and wife's 
 decease did thereby bequeath all his real estate whatsoever, in the county 
 of Berks or elsewhere (his debts being first paid,) unto the plaintiff, his 
 heirs and assigns forever, lawfully to be begotten ; and, for want of such 
 issue, to the use of Joseph Brooke, his heirs, &c.; and did give unto 
 his mother the sum of BO^. per anmim, for her life, to be paid her out 
 of his lands called Blackcrofts, and did (^Intcr alia\ give unto John Col- 
 lins, and his uncle Robert Brooke, all his said real estate, together with 
 his two horses, a colt, and corn in the barn, on trust that they should 
 (if occasion should be) not only sell the said hay and horses towards the 
 payment of his debts, but should also sell his shop of wares for and to- 
 wards the same, together with his lands at Sutton and Highgarden afore- 
 said, in case his personal estate was not sufficient to pay his debts; and 
 made his wife and another executrixes of his said will. That r^nooT 
 *shortly after making the said will the said T. Brooke died much L J 
 indebted, more than his personal estate would amount to pay, by means 
 whereof his wife did, as the executrix, refuse to act or intermeddle with 
 the real ((in. personal) estate ; and thereupon Anne Brooke, grand- 
 mother of the plaintiff, took upon her the burthen of the said will, and 
 thereby became entitled and entered into the personal estate of the said 
 testator, and out of her own estate, and otherwise, paid all the debts of 
 the said testator; and about June, 1688, the said Anne died. That the 
 said plaintiff, on the death of his grandmother, entered on the lands 
 called Blackcrofts, and, as he is advised, ought to have held the said 
 
 (1) Two cases usually cited upon this subject have been omitted as irrelevant 
 to the point. In Masters v. Hooper, 4 B. C. C. 207, the testator left two nepliews 
 and two nieces, and two great-nephews and a great-niece, and, as there is no re- 
 presentation under the statute beyond brothers' and sisters' children, the great- 
 nephews and great-niece were excluded, and the distribution was made per capita 
 among the nephews and nieces. Reg. Lib. 1792. B. fol. 209. In Lowndes v. 
 Stone, 4 Ves. 649, a testator gave the residue of his property "to his next kin or 
 heir at law, whom he appointed his executor." By " next kin or heir at law" was 
 evidently intended some individual; but, as there was no one to answer the de- 
 scription, the result was an actual intestacy. The case docs not appear in Reo-. 
 Lib.
 
 732 LEWIN ON THE LAAV OF TRUSTS, ETC. 
 
 messuage called Drewes, and all other the real estate of the said T. 
 Brooke, and to have received the rents thereof accrued after the death 
 of the said Anne the elder, his debts being paid out of his personal es- 
 tate, and profits of his personal estate, and otherwise. That Peter Sayer, 
 
 about June, 1688, did enter into the house of one Gamon, where 
 
 after the death of the said Anne Brooke, the deeds, writings, &c., of the 
 estate of the said T. Brooke lay locked up in an iron chest, and did carry 
 away the said chest, and possessed himself of all deeds, writings, &c., 
 that were therein. And the said Peter Sayer, on the death of the said 
 T. Brooke, did enter into the lands called Sutton lands, and prevailed with 
 the defendant, Curtis, the tenant thereof, to pay his rent to him, on giving 
 him a bond to save him harmless; and the said Anne the elder, being 
 aged, did not in her lifetime make any eflFectual prosecution for re- 
 covery thereof; but the plaintiff is well entitled thereto by the will of the 
 said Anne (qu. T. Brooke,) and ought to have an account of the profits 
 thereof since her death. That the said P. Sayer, observing that Collins 
 and Brooke, in whom the estate in law of the said Sutton lands was vested, 
 would not act, and the said plaintiff being then an infant of ten years of 
 ago, and his grandmother aged, and not willing to be engaged in a suit 
 for the recovery thereof, the said Peter having gotten into possession as 
 aforesaid, did, together with Elizabeth his wife, levy a fine sur conn- 
 zance, &c., and did by some deed declare the use of such fine to be to 
 him and his heirs; and afterwards proclamations were had according to 
 the statute, and after five years passed, and no claim made within that 
 time by the said trustees, whereby, at law, the plaintiff cannot have his 
 remedy, the defendant threatening to set up the fine and nonclaim. 
 That the said plaintiff ought to be relieved against such fine and non- 
 claim, the same being a breach of trust in the trustees in not making 
 entry before permitting five years to pass after such fine. That in case 
 the plaintiff cannot have satisfaction out of the estate of the said P. 
 Sayer, yet, that the defendant, Curtis, the tenant of the said Sutton lands. 
 ought to be accountable for the profits by him received since the death 
 of the said testator, T. Brooke, for that he was acquainted with the 
 plaintiff's grandmother's title, and for that purpose took security from 
 the said P. Sayer to pay his rent to him. Therefore, that the witnesses 
 to the will of the said T. Brooke may be examined in perpetuam rei vie- 
 moriam, and to discover the deeds of the lands given by the will, and 
 what other the said P. Sayer took out of the iron chest; and that the 
 same, and all other deeds, may be delivered to the plaintiff; and that 
 the said defendants may account for the profits of the said Sutton lands 
 received since the death of the said T. Brooke; and that the fine 
 and nonclaim may be set aside; and that the defendants may dis- 
 cover the personal estate of the said Peter Sayer,(l) and what settle- 
 |-^:Qoo-i *nient the said Peter Sayer made of his real estate towards the 
 L -I payment of his debts, and to be relieved, is the scope of the bill. 
 Whereunto the counsel for the defendants (the infant children of Peter 
 Sayer and the trustees for the children, and Curtis, the tenant) insisted 
 
 (1) He had died before the bill was filed.
 
 APPENDIX. 733 
 
 that Margaret Brooke, tlie infant's great-great-grandmother, was, about 
 thirty years since, seised in fee of the said Sutton lands, whereby the 
 same (^inter alia) after the death of the said Margery, descended unto Rich- 
 ard Brooke great-grandfather of the defendants, the infants ; and the 
 said Eichard Brooke being seised in fee of the said premises, and having 
 several children, viz., Richard, his eldest son, who died without issue, 
 Thomas, the second son, under whom the plaintiff claims, and Margaret 
 and Ann, his two daughters, the said Richard, on a treaty of marriage 
 with Margaret, his eldest daughter, to one John Keepe, did agree to settle 
 the lands in questions {inter alia^ upon the said Margaret, and the issue 
 of her body ; and accordingly articles of agreement were executed between 
 William and John Keepe on their part, and the said Richard Brooke on 
 his part, whereby the said Richard did covenant to settle the reversion 
 and inheritance of all the lands on the death of Jennings, the tenant 
 thereof by curtesy which descended to him from the said Margery, upon 
 the said Margaret for her life, remainder to the heirs of her body, or the 
 issue of that marriage ; and in pursuance of the said articles the said 
 Richard did, by his indenture, settle the said premises on the said 
 Margaret and her issue accordingly. That the said marriage soon after 
 took effect, and the said Margaret, had issue Elizabeth Keepe, the only 
 daughter and heir, who about 1676 married the said Peter Sayer. That 
 about the year 1665 the said John Keepe died, and afterwards the said 
 Margaret his wife died, whereby the premises descended unto the said 
 Elizabeth, and the said P. Sayer, being so entitled in right of his said 
 wife, did, after the death of the said Jennings, which happened about 
 eighteen years since, enter into the said Sutton lands with other the 
 said Margaret's estates, and, the said Peter being in possession, they did, 
 in 1678, let the Sutton lands to the defendant Curtis, for five years, at 
 4?. per annum, and gave him a bond of 200/. for his quiet enjoyment 
 thereof. That the said Peter Sayer, and his wife did, in Easter Term, 
 1678, levy a fine as in the bill, and that they held the same for five years, 
 without any claim made by the plaintifi', and that the said plaintiff, 
 sp.cundo Gul. et Maria', brought an ejectment against the said Peter 
 Sayer, and the defendant Curtis, for the recovery of the premises, and 
 brought the same to trial at the Berkshire assizes, and set up a title under 
 the will of the said Thomas Brooke, and, after a full hearing, a verdict 
 passed in affirmation of the said Peter's title ; and the said Peter, being 
 minded to provide for the defendants Elizabeth, and Peter, and John, 
 did, by deeds of lease and release, convey the said Sutton lands unto the 
 said defendants Elizabeth, the grandmother, Moses Slade, William Button, 
 and Antony Leaver, their heirs and assigns, in trust for himself for life, 
 and after his decease to sell the same, and the money thereby raised to 
 be equally divided amongst his said younger children ; and by virtue of 
 the said deeds the said defendants, the trustees, do stand seised of the 
 said premises in trust for the defendants, the three younger children of 
 the said Peter, who died about 2nd February, 1691. And the said 
 defendants insist on the said marriage articles, fine, and nonclaim, verdict, 
 and continued possession, in bar of the plaintiff's title to the said lauds. 
 And the counsel for the defendant, Richard Brooke, insisted, that he by
 
 734 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 his answer saith, he is the surviving trustee named in the said T. Brooke's 
 *will, and that he never acted therein, and disclaims all interest 
 L "^ J of, in, or into the said lands in question, and is ready and willing 
 to convey and assign his interest therein, as the court shall direct, being 
 indemnified by the decree of the court for so doing. Whereupon, and 
 upon long debate of the matter, and reading the will of T. Brooke, 
 the articles between John and William Keepe and Richard Brooke, 
 dated the 19th December, 1656, and the proofs taken in the cause, and 
 hearing what was insisted on by counsel on all sides, this court declared, 
 that the said fine and nonclaim ought not to incur against the plaintiff, 
 who was then an infant, and doth therefore think fit, and so order and 
 decree, that a perpetual injunction be awarded to stay the defendants, 
 the trustees of the said Peter Sayer, and all claiming under him, from 
 proceeding at law for the said Sutton lands ; and that the defendant, 
 Robert Brooke, the surviving trustee named in the said T. Brooke's will, 
 and the trustees of the said Peter Sayer deceased, do convey the said 
 Sutton lands unto the plaintiff and his heirs, or unto whom he or they 
 shall appoint, and for so doing they are hereby indemnified; and that 
 the said defendants do come to an account before Roger Meredith, Esq., 
 for the profits of the said premises received by them or the said Peter 
 Sayer deceased, in taking of which account the said Master is to make 
 unto the said defendants all just allowances ; and what upon the said 
 account shall appear to be due to the plaintiff for the rents and profits 
 of the said premises received as aforesaid, the said defendants are hereby 
 ordered and decreed to pay the same unto the plaintiff, or unto whom he 
 shall appoint • but the defendants Jonathan Sayer, Leaver, and Button, 
 are to be charged no further in reference to the profits received by the 
 said Peter Sayer deceased, than they have assets of the said Peter. And 
 it is further ordered and decreed, that the defendants do deliver to the 
 plaintiff the deeds and writings of all the lands that belonged to the 
 said T. Brooke, not comprised in the said articles." Reg. Lib. 1699, 
 A. f. 502.
 
 INDEX. 
 
 The pages referred to are those between brackets [ ]. 
 
 ABATEMENT, 
 
 of a trust, 621. 
 ABATOR, 
 
 not bound by a use, 3. 
 ABROAD. See Bankruptcij (Assign- 
 ment), Jurisdiction. 
 Lands abroad (within the Queen's 
 dominions) within Lord St. Leon- 
 ards' Trustee Act, 835, note (s). 
 See Trustee Act, 1850, ss. 54, 56, 
 901. 
 Parties to suit, as to c. q. t. abroad, 
 
 849 ; as to trustee abroad, 847. 
 Personal estate abroad, trust of, en- 
 forced in equity, 46. 
 Real estate abroad, equities of, how 
 far enforced, 47, et seq. 
 account of rents, foreclosure, in- 
 junction against taking posses- 
 sion, relief against fraudulent 
 conveyance, sale, 48. 
 trusts of, when enforced, 53. 
 Receiver appointed where trustees 
 all out of jurisdiction, 870; see 871. 
 Residence of c. q. t. abroad, 432, 
 453. 
 of trustee abroad, 40 ; new trustees 
 appointed, 711 5 see 576. 
 ACCEPTANCE OF TRUST. See 
 Disclaimer. 
 Compellable, is not, 232. 
 Duties consequent on, 243, 244; and 
 see 238. 
 trustee must not rely on co-trus- 
 tee, 243. 
 must inform himself of state of 
 
 trust, 244. 
 should have inventory of chat- 
 tels, 244. 
 How made by Executor (see Execu- 
 tor) by voluntary interference with 
 assets, 241. 
 
 e. g. assigning lease, bringing ac- 
 tion, selling assets, 241. 
 (unless conduct can be clearly ex- 
 plained,) 242. 
 by proving will, 239, 240. 
 executor of executor administer- 
 ing to one testator must to the 
 other, 234. 
 who is also trustee cannot prove, 
 and renounce trusts, even of 
 real estate, 240. 
 may claim legacy, though he re- 
 nounce, 234. 
 How made by trustee: (1) by sign- 
 ing deed ; (2) by declaration ; 
 (3) by acting, 237. 
 what acts constitute, 239, et seq. 
 by deed, 238 ; trustee should see 
 
 to recitals, ib. 
 when presumed, 237, 242 ; not ne- 
 cessarily from taking possession 
 of trust deed, 241. 
 trustee of two trusts by same in- 
 strument having accepted one, 
 deemed to have accepted the 
 other, 240. 
 provable by parol, 243. 
 Made, after being, trust cannot be 
 
 renounced, 289. 
 Mistake, person assuming character 
 of trustee by, accountable, 244. 
 ACCIDENT, 
 
 no excuse for trustee, if it occur dur- 
 ing misfeasance, 766. 
 ACCORD, 
 
 no bar without satisfaction, 737. 
 ACCOUNT. See Abroad, Alloicance, 
 Wilful Default. 
 Decree for merely, not within 1 & 2 
 Vict. 110, s. 18, 667, note (c). 
 form of, 752, and see 765, 766. 
 Laches, where plaintiff guilty of, re-
 
 736 
 
 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 ACCOUNT, continued. 
 
 stricted to filing of bill, 751, 756, 
 note, 
 account barred by between part- 
 ners, 742. 
 Of Mesne Rents and Profits. See 
 Mesne Bents and Profits. 
 extent of, in charities, 786, et seq : 
 constructive trusts, 750, 752, 
 note (1); express trusts, 752, 
 note (1) ; see as to ignorance of 
 trustee, 751 ; and as to his mis- 
 take, 790. 
 Settled opening against solicitor trus- 
 tee, 550. 
 Trustee, against, who has purchased 
 trust estate, 466. 
 who has renewed lease, 224. 
 ACCOUNTANT, 
 
 may be employed by trustee, 556. 
 ACCOUNTS, 
 
 whether c. q. t. may claim copies of, 
 
 599 ; see 428. 
 trustee should keep, of expenses, &c., 
 
 559, 599. 
 fixed with costs where confused, or 
 if trustee misstate or suppress, 877, 
 878 
 ACCUMULATION. See Duration, 
 Conversion (2), Thellnsson Act. 
 Application of income before conver- 
 sion where accumulation directed, 
 813, et seq. 
 Trust foi-, must not lead to a perpe- 
 tuity, 110. 
 bad, if possibly exceeding lawful 
 
 limits, 111, 112. 
 but no danger of perpetuity where 
 rents applicable as vested inte- 
 rest de anno in annum. 111. 
 ACKNOWLEDGMENT. See Fines 
 and Recoveries Act. 
 What may prove trust, 63, 64. 
 ACQUIESCENCE. See Time. 
 
 Breach of trust in, its effect, 775, et 
 seq., see 769. 
 Feme covert not bound bv, 471, 
 777. 
 secus as to separate use without 
 
 restraint, 471, 777. 
 qu. with restraint, 778. 
 fluctuating body by, as creditors 
 
 or parishioners, 777; see 471. 
 infant, not bound by, 471, 777. 
 Constructive trusts in case of, 224. 
 purchase in names of stranger, 
 207. 
 Direct or indirect, 737. 
 Distinguished from waiver, ib. 
 In improper loan, by receiving inte- 
 rest, 776. 
 
 Requisites of, 777, 778. 
 Stat, of Limitation, does not inter- 
 fere with its effect in equity, 748. 
 ACT OF PARLIAMENT. See 5t« 
 
 in Parliament, Parliament. 
 ACTING, 
 
 Trustee, meaning of expression, 578, 
 591. 
 every trustee who has accepted 
 office must be, 298 ; and see 
 243, 415, 449, 612. 
 ACTION, 
 
 Brought as to trust estate, must be 
 in trustee's name, 18, 269, 591; 
 see 275. 
 0. q. t. giving indemnity, may require 
 trustee to lend his name to, 718 ; 
 see 591. 
 not where against purchaser with- 
 out notice from trustee, 719. 
 Trespass of, on lunatic's realty de- 
 frayed out of his personalty, 827. 
 Trustee may bring, without having 
 by writing accepted office, 243. 
 must not bring, &c., after decree, 
 without sanction of court, 524. 
 ADMINISTRATION. See Assets, 
 Bond. 
 Durante minoritate, 834, note [h). 
 Letters of, how obtained after suc- 
 cession of intestacies, 458, 459. 
 Mortgagee, how he proves in admi- 
 nistration suit, 485. 
 Order at chambers, 856. 
 Separate property of feme covert 
 under her will, 642. 
 ADMINISTRATOR. See Executor, 
 Relinquisliment (representative). 
 Trustee Act, s. 6. 
 on same footing as to receipts as 
 
 executors, 316. 
 de bonis non, 262. 
 how far safe to deal with administra- 
 tor after interval from intestate's 
 death, 458. 
 not properly a trustee upon renun- 
 ciation of executor trustee, 240. 
 ADMISSION, 
 
 To Copyholds (see Copijliolds, Cus- 
 tomary Freeholds), effect of, 249. 
 Fine to be paid by trustee, 272. 
 at what rate where co-trustees, 
 
 272. 
 how raised, 272, 402. 
 Of debt, trustees for creditors can- 
 not make after accounts taken by 
 court, 522. 
 Of trust by defendant, 72 ; see 63. 
 ADULT. See Advancement, Infant. 
 ADVANCEMENT, 
 
 Cap ita lout of, ofinfanfs legacy, 518.
 
 INDEX. 
 
 737 
 
 ADVANCEMENT, contimied. 
 if no limitation over, 519. 
 or where cross limitations among 
 
 children, 519. 
 power of, whether authorized by 
 executory trust silent as to pow- 
 ers, 164, note (x), see 165. 
 On purchase, in name of cldld, &c., 
 207, et seq. 
 child as to, where adult, 212, 213 ; 
 
 infant, 209, 212. 
 joint names in, of father and child, 
 
 209. 
 of stranger and child, 210. 
 (but stranger quatenus his estate 
 is trustee for father,) ib. 
 Nature of Provision 
 
 as to copyholds for lives, succes- 
 sive, 210; see 214. 
 personal estate, doctrine applies 
 
 to, 216. 
 partial or reversionary estate, ib., 
 
 209, 212. 
 whether doctrine applies, ( 1 ) where 
 child already provided for, 211 ; 
 (2) where father continues in 
 possession, 212, 213. 
 Presumed, may be, for daughter, 
 grandchild, illegitimate child, 
 nephew, wife, 216. 
 and sembleeven for stranger where 
 purchaser in loco parentis, ib. 
 Presumption, what evidence rebuts 
 on part of child, 214. 
 whether parol declaration by fa- 
 ther, 214, 215. 
 rebutted by fact that son is a soli- 
 citor, 216. 
 Purchase money, if not paid, a debt 
 from the parent, 216. 
 ADVANTAGE. See Claim, Lease. 
 Trustee shall not derive from trust, 
 318, et seq. 
 as by buying up debts, from game 
 on trust estate, presenting to 
 living, being receiver, trading, 
 &c., 318, 319. 
 application of rule (1) to attorney, 
 auctioneer, broker, commission 
 agent, factor, solicitor, 319,320; 
 (2) to executor, guardian, trus- 
 tee, &c., 319, 320, 321. 
 charity lease should not contain 
 covenant for lessor's private 
 advantage, 505. 
 trustee cannot seek aid of equity 
 
 for his own benefit, 323. 
 may assert his legal right, seni- 
 ble, 324. 
 Whether trustee may have on failure 
 of c. q. t. See Failure of c. q. t. 
 
 ADVERTISEMENTS by trustees sel- 
 ling by auction, 422. 
 ADVICE OF COUNSEL, 234, 366, 
 
 595. 
 ADVOWSON. See Presentation. 
 Survivorship of, between co-trustees, 
 
 300. 
 Trust of, for parishioners, see Pa 
 rishioners; and see 107, note [y], 
 and 19 & 20 Vict. c. 50, authoriz- 
 ing sale of, ib. 
 Trust to present to within six months 
 
 after vacancy, 527. 
 Trustee presents, but must observe 
 direction of c. q. t., 269, 318. 
 AFFIDAVIT. See Payment into 
 Court (compulsory). Trustee Act. 
 Material facts not in issue brought 
 by, before the court at hearing, 
 869. 
 Necessary for distringas under 5 
 Vict. c. 5, s. 5, 861, 862. 
 restraining orders under 5 Vict. 
 c. 5, s. 4, 860. 
 Trustees by, under Trustee Relief 
 Act, 376,' note (s), 378, note (y), 
 379. 
 "AGENCY, 
 
 deed of," 483. 
 AGENT, 
 
 Accountable to trustees only, not to 
 c. q. t., 226, 561. 
 unless quasi-trustee deriving per- 
 sonal benefit, 459 ; by accept- 
 ing delegation of trust, or fraud, 
 226, 562. 
 Auctioneer is agent for vendor and 
 purchaser, 427 ; how after comple- 
 tion, ib. 
 Executor, acting by direction of, 459. 
 Lease, agent of trustee may not re- 
 new for his own benefit, 220, 225. 
 Lien, agent has not any upon trust 
 estate for charges, 561. 
 though trust be to pay expenses 
 in first instance, ib. 
 Party to suit, when necessary as, 
 
 844, 848. 
 Purchase by, in his own name not 
 proveable by parol to be for an- 
 other, unless part of consideration 
 paid by employer, 204; see Denial. 
 Security, need not give, 295. 
 Trustee,afterdisclaimermaybe, 235. 
 may employ on proper occasions, 
 
 556. 
 e. g. accountant, attorney, bailiff, 
 collector of rents, 556 ; of debts, 
 557. 
 paying to, should see that autho- 
 rity is genuine, 372.
 
 i6t 
 
 LEW IN OX THE LAW OF TRUSTS, ETC. 
 
 AGENT, continued. 
 
 how authority may be gi^en, 3Y2. 
 for sale, cannot buy as agent for an- 
 other, 462. 
 may employ agent, 422. 
 but not to buy for himself, 462. 
 AGREEMENT. See Contract. 
 Value for, to charge lands possessed 
 at particular time, or to settle par- 
 ticular estate or property acquired 
 during coverture, raises implied 
 trust, 173, 174. 
 Voluntary, under seal, its effect, 93, 
 94, and see note (e). 
 ALIEN, 
 
 Chattels personal, alien enemy can- 
 not hold, 28. 
 alien friend may, and may create 
 trust, ib. 
 Devise to, and to British subject, 
 
 upon trust, 39. 
 Husband, not entitled to curtesy of 
 
 trust lands, 621. 
 Lands : may acquire lands by pur- 
 chase but not by descent orope- 
 ration of law, 28. 
 purchasing, may hold until office 
 
 found, ib. 
 cannot sue nor be sued touching 
 lands, 39 ; see Trvst, inf. 
 Proceeds of sale of real estate, may 
 
 take, 43, 807. 
 Trust, how far he can create, 28. 
 as to real estate, cannot compel 
 its execution in his favour, 43 ; 
 but see note (o). 
 forfeitable to crown, without pre- 
 vious inquisition, 43, 132, 677. 
 distinction between trusts perfect- 
 ed and in fieri, 43. 
 ALIENATION, 
 
 Charity estates, of. See Charities 
 
 (Alienation). 
 Fettered by trusts, generally cannot 
 
 be, 132.' 
 Limitation until, or limitation over 
 upon "alienation," &c., 135. 
 what assignment incurs forfeiture 
 thereunder, 135, note (A-). 
 Powers, whether trustee can exercise 
 after alienation of estate, 534 ; and 
 see 267, 297. 
 Restraint against anticipation as to 
 separate property of feme covert, 
 123, et seq. ; see Feme Covert, 
 (2). 
 ALLOWANCE, 
 
 for costs ; see Costs, c. xxix. s. 6, p. 
 
 872. 
 Expenses ; see Expenses, c. xx. s. 
 2, p. 557. 
 
 Time and trouble; see Trouble, c. 
 
 XX. s. 1, p. 545. 
 Just allowances to assignee, 557, 
 note (2). 
 direction for, when inserted in de- 
 cree for account, 752. 
 AMERICA, 
 
 property in, 47 ; and see Jurisdiction. 
 ANNUITANT, 
 
 how far he contributes to fine on re- 
 newal of lease, 223. 
 ANNUITIES, 
 
 £3 per cent, consols proper invest- 
 ment of trust money, 351. 
 ANNUITY, 
 
 trust money ought not to be lent 
 
 upon, 341. 
 trustee of term for securing when a 
 necessary party to suit, 842. 
 ANSWER, 
 In Chancery, 
 
 Limitation, Statute of, how plead- 
 ed by, 734, 738. 
 may serve as declaration of trust, 
 
 63 ; and see 72. 
 but plaintiff must read from it 
 terms of trust, 64. 
 Feme covert, of, having separate 
 
 property, 633. 
 Payment into court, when directed, 
 on admission in answer, 865, et seq. 
 Suppression or chicanery in, visited 
 with costs, 877, 878. 
 ANTICIPATION, RESTRAINT A- 
 GAINST. See Alienation, Feme 
 Covert (2). 
 APPEAL, by trustee, from decree is 
 
 at his own risk, 368. 
 APPLICATION of money paid on 
 sale to trustees, 
 whether purchaser, «fcc., must see to, 
 430, et seq. See Beceipts. 
 APPOINTED, 
 
 property under power when assets, 
 768, note [lo] ; see 775. 
 APPOINTEES, 
 
 trustee for should see that power is 
 duly executed, 596. 
 APPOINTMENT. See Poiver, Re- 
 sulting Trust (charge), 
 of new trustees. See Keio Trustees. 
 power of, authorized by " usual pow- 
 ers" in executory trust, 164. 
 APPORTIONMENT, 
 
 of fines for renewal, 395, et seq. See 
 Renetcable Leaseholds. 
 APPROPRIATION, 
 
 of legacy by executor permitted with- 
 out suit, 517. 
 ARBITRARY POWERS. See Pow- 
 ers, 538, et seq., 694, et seq.
 
 INDEX. 
 
 739 
 
 ARBITRARY POWERS, continued. 
 trustee appointed by court cannot 
 exercise, 712. 
 ARREARS. See Mesne Rents, T50, 
 752, note (1). 
 Of interest or rent, recoverable under 
 Limitation Act, 744 ; see 751, 
 754, note, 
 the whole in case of express trust, 
 
 748. 
 or, where there is a term under 
 which trustee may obtain pos- 
 session, 749. 
 what recoverable, where trustee 
 ignorant of his true character, 
 751. 
 what recoverable in case of fraud, 
 &c., 756, note. 
 Of pin-money, 644. 
 Of separate estate, 642. 
 ARTICLES. Marriage, construction 
 of executory trusts in. See Exe- 
 cutory Trusts, 1 46, et seq. 
 notice of, how far binding upon pur- 
 chaser, 727. 
 parties to suit for specific perform- 
 ance of, 844. 
 ASSETS. See Executor (Assets), 
 Failure of c. q. t., Feme Covert, 
 (Executrix), Judgment, c. xxiii. 
 s. 11, p. 681. 
 Appointed estate, under general 
 power is assets, 768, note {w). 
 secus where donee of power is 
 feme covert, except where fraud, 
 ib., and see 775. 
 copyhold, formerly not assets. See 
 Exception, 661, note (1). 
 Equitable, what are, 686, 687 ; see 
 692. 
 land devised upon trust for pay- 
 ment of debts, 686; and see 488. 
 separate property of feme covert, 
 
 642. 
 whether equity of redemption of 
 term legal or equitable assets, 
 687, 688. 
 trust of chattels, id., 685, et seq. 
 of fee, id., 688. 
 Equity of redemption, whether as- 
 sets, 684, 685. 
 Money to be laid out in lands not 
 
 considered personal assets, 796. 
 Trusts of chattels are assets, 681. 
 whetherof freeholds before Statute 
 of Frauds, 681 ; see 685. 
 the Act did not extend to com- 
 plicated trusts, &c., 684, 685. 
 under late statute 3 & 4 W. 4, c. 
 104, 691, 692 ; see 796, and list 
 of statutes. 
 
 ASSIGN, 
 
 bound, whether in the per or post 
 by a trust, 19, 279, 280. 
 except pui'chasers for value with- 
 out notice, 279, 725. 
 originally not bound by a use, 3. 
 when assigns can execute power of 
 sale in mortgage, 419. 
 can execute trust, 266, et seq., 
 297, 450, 533, 712. 
 ASSIGNEE. See Purchaser, Volun- 
 teer. 
 of equitable interest, 729. 
 ASSIGNEES OF BANKRUPT. See 
 
 Bankruptcy. 
 ASSIGNMENT, 
 
 Equitable interest, of, how made, 
 600 ; and see 604 et seq. ; and 
 see Deed, Notice. 
 formerly not permitted, 5. 
 when, to whom, and how notice 
 should be given, 612, 613; see 
 327. 
 Feme covert, by, of separate proper- 
 ty, see 632. 
 Fund in court, of, what inquiries 
 
 and notice proper, 613, 614. 
 Legal estate, of, effect of upon pow- 
 ers of trustees, 267, et seq., 297 : 
 see 533, 712. 
 Tenant in tail, by, 601, et seq. 
 LTse, of a, not permitted, 4. 
 AT HOME, 
 
 money to be laid out on land, where 
 so considered, 800, et seq. ; see 823. 
 ATTAINDER. See Forfeiture. 
 ofc. q. t., 323, 674, et seq. 
 of trustee, 287. 
 ATTENDANT TERM, 
 
 attended inheritance gained by dis- 
 seisin, 288, note (1). 
 trust of followed devolution of free- 
 holds, 131. 
 ATTESTED COPIES, 
 
 when given by assignees of bank- 
 rupts and trustees for sale, 425. 
 ATTORNEY, 
 
 Allowance, attorney, when trustee, 
 has none for time and trouble, only 
 for expenses out of pocket, 549 et 
 seq. ; see Solicitor. 
 Appointment of, or proxy, distin- 
 guished from delegation of trust, 
 297. 
 Breach of trust, advising or concur- 
 ring in, 763, note (s). 
 Constructive trust in case of violat- 
 ing his duty, 226. 
 Infant cannot be in suit, 36 ; may, to 
 
 deliver seisin, 36. 
 Trustee may employ, 556.
 
 740 
 
 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 ATTORNEY, continued. 
 
 should not allow moneys to lie in 
 the hands of, 295. 
 Potcer of. See Infant. 
 dividend, to receive, 594. 
 forged, 372 ; trustee should see to 
 
 authenticity of, ib. 
 how to be qualified in assignment 
 of chose in action by trustee, 426. 
 ATTORNEY-GENERAL, 
 
 Compromise with, allowed in case of 
 
 charities, 789. 
 Information is in name of, 779. 
 Petition under Romilly's Act, his al- 
 lowance of, 782. 
 he must be a party to proceedings 
 
 undei-, 783. 
 may correct his judgment, 783. 
 ATTORNMENT of tenant, whether it 
 
 works disseisin, 721. 
 AUCTION, 
 
 trustee cannot purchase trust estate 
 
 at, 461 ; and see 876. 
 trustees may sell by, 422, 423. 
 AUCTION DUTY. See 424. 
 AUDITOR, 101. See Receiver. 
 "AUTHORIZING AND EMPOW- 
 ERING," 
 may raise a trust, 168. 
 AUTHORITY, 
 
 bare, to several, determines by death 
 
 of any, 299. 
 to receive moneys, how given by c. 
 q. t., 372. 
 AVERMENT, 
 Trust of, permitted at common law, 56. 
 not upon a bequest, 59 ; how far 
 
 as against an executor, ib. 
 not upon a devise even at common 
 
 law, 58. 
 not in contradiction to trust ex- 
 pressed or implied upon written 
 instrument, 57 ; see Considera- 
 tion, Pension. 
 not where deed is necessary to 
 pass legal estate, 57. 
 Use of, 56, 57; see 6, note (1). 
 
 BAILIFF, 
 
 infant cannot be, 36. 
 
 mortgagee or trustee may employ, 
 556. 
 BANK, 
 
 Co-trustees, where safe to pay trust- 
 moneys to their joint account at 
 some bank, 830. 
 
 Failure of, where trustees liable for, 
 333, 336. 
 
 Notes treated as cash, 757 ; whether 
 ear-marked, 274, 757, 758. 
 
 Trust-money may be deposited in 
 
 temporarily to trust account, 
 332, et seq. 
 not otherwise, 336 ; nor out of 
 trustee's control, 334. 
 paid into, to trustee's private ac- 
 count, presumed to be traded 
 with, 361. 
 how followed, 760. 
 may be transmitted through bank, 
 295. 
 but payment should be to trust 
 account, 296, 333, 336. 
 BANK OF ENGLAND. See Dis- 
 tringas, Stock, Trustee Extension 
 Act, ss. 6, 7, p. 905, note {g). 
 Annuities, 351. 
 Costs of, 33. 
 
 Incorporated, when, 32, note (1). 
 Parties, as to making bank, 33, note 
 
 (h), 859. 
 Stock, whether trustees may invest 
 
 on, 341. 
 Transfer, bank will not usually allow 
 
 unto more than four names, 41. 
 Trustee, bank cannot be, 32. 
 BANKER, 
 
 not accountable for sale of stock by 
 executor's order, even where mis- 
 application probable, 459. 
 BANKRUPT. See Bankr^qjtcy. 
 Property of, up to certificate vests 
 
 in assignees, 29. 
 Trust, bankrupt may create of sur- 
 plus after payment of debts, ib. 
 Trustee, a bankrupt is not absolutely 
 disqualified to be, 40. 
 his bankruptcy, ground for appoint- 
 ment of receiver, 870; and comp. 
 711. 
 BANKRUPTCY, 
 
 "Alienation," clause divesting pro- 
 perty on, does not extend to bank- 
 ruptcy, 135. 
 Assignees, action against, in whose 
 name it must be, 275. 
 in case of factor, ib. 
 bankrupt trustee of, when they may 
 have contribution against co- 
 trustee, 773. 
 interest, charged with, for balances 
 
 improperly retained, 359. 
 just allowances to, 557, note (z). 
 taking legal estate, bound by trust, 
 
 280 ; see 276. 
 may not generally purchase bank- 
 rupt's estate, 465. 
 what trust estates they take, see 
 
 Trust Estate, inf., 273, et seq. 
 see Maintenance, inf. 
 Assignment, by trader, of whole pro- 
 perty, an act of, 477.
 
 INDEX. 
 
 741 
 
 BANKRUPTCY, continued. 
 
 so, of all but colourable part, or 
 necessary stock in trade, 477. 
 even where trust for all credi- 
 tors, or notwithstanding pro- 
 viso avoiding it, or not intend- 
 ed to be acted on, 477, 478. 
 or where bankruptcy the object 
 ofit, 478, 479. 
 but good, (1) where no existing 
 debts, (2) as between parties, 
 (3) as concerns bona fide pur- 
 chaser, 478. 
 upheld when facilitating arrange- 
 ment with creditors, 478. 
 becoming valid under late Bank- 
 ruptcy Act, 479, 480. 
 creditors acquiescing in, cannot 
 
 treat it as act of, 479. 
 if not enforceable, is not an act of, 
 
 479. 
 executed abroad, 479. 
 by trader, of part of property, not 
 an act of, 477, note [iv), 480. 
 unless he contemplated bank- 
 ruptcy, 480. 
 Certificate under, bars trust debts, 
 772 ; but bankrupt trustee should 
 see proof made, ib.; see 29. 
 District Courts of, their jurisdiction 
 in charities whose income under 
 30Z., 718, note (6), 784. _ 
 Equity to settlement, of feme covert 
 
 as against assignees, 369, 370. 
 Limitation over, on, or until, 135, et 
 seq. 
 trader cannot so limit over his own 
 
 property, 136. 
 except to extent of portion received 
 with wife on marriage, ib. 
 Maintenance, trust for at discretion 
 of trustees, how far assignees take 
 under, 133, 134. 
 New trustee may be appointed on 
 bankruptcy of trustee, 276, 711. 
 how under Bankruptcv Act, 714, 
 715. 
 Order and disposition, of bankrupt, 
 277. 
 trust chattels, in hands of bank- 
 rupt executor, factor, or trustee, 
 are not within, 277, 278. 
 secus, where executor has assumed 
 to be absolute owner, 277. 
 as to c. q. t. absolutely entitled 
 
 and bankrupt, 278. 
 as to c. q. t. tenant for life and 
 insolvent, 594. 
 Parties in suits, assignees can sue, 
 &c.. without presence of creditors, 
 843. 
 
 Proof under, where estate amalgama- 
 ted with that of bankrupt, 276. 
 for breach of trust, against estate 
 of bankrupt trustee, with inte- 
 rest, 771. 
 where stock improperly sold, 357, 
 772. 
 money laid out on mortgage, 
 
 772. 
 investment in improper securi- 
 ties, 772. 
 bankrupt trustee interested in 
 trust fund, set-off made, 772. 
 bankrupt trustee one of several 
 co-trustees, 772, 773. 
 eEFect of release given to one co- 
 trustee, 773. 
 where co-trustees severally bank- 
 rupt, 773. 
 by mortgagee, 485. 
 made by trustee, except where 
 trust is simple, 269. 
 genei'ally all co-trustees must 
 
 make, 298. 
 bankrupt trustee, how far liable 
 in equity, if he does not make, 
 notwithstanding certificate, 
 773. 
 Trustee of. See Proof, sup., c. xi. 
 s. 2, p. 273. 
 
 ground for appointment of re- 
 ceiver, 870. 
 trading as such, liable to, 272. 
 Trust estate, on clear trust, does not 
 pass to assignees, 274. 
 though tortiously converted, if 
 capable of being identified, 
 274, 275. 
 or if money payable at future 
 day, 275. 
 whether legal estate passes to as- 
 signees when bankrupt has bene- 
 ficial interest, 276. 
 or where trust doubtful, ib., and 
 see Proof, sup. 
 BAR, 
 
 to equitable relief, 731, et seq. 
 
 See Limitation of Suit. 
 in charitable trusts, 786, et seq. 
 BARGAIN AND SALE, 
 
 for nominal consideration would 
 not now be enforced by way of 
 constructive trust, 96. 
 BENEFICE, See Adancson, Presen- 
 tation. 
 BENGAL, 
 
 Government notes, "lands" within 
 Lord St. Leonards' Trustee Act, 
 835, note {q). 
 BEQUEST. See Legacy, Legatee. 
 Personal estate of, how made accord-
 
 742 
 
 LEW IN OX THE LAW OF TRUSTS, ETC. 
 
 BEQUEST, continued. 
 
 ing to Statute of Frauds, 65; how 
 under present law, 80. 
 
 passed proceeds of land subject 
 to trust for conversion, 807. 
 Residuary. See Residuary, Bequest. 
 "BESEECHING," 
 
 may raise a trust, 168. 
 BILL IN CHANCERY. See lafor- 
 mation. 
 Appointment of new trustees, bill or 
 claim for, 583. 
 not necessary where suit pending, 
 
 ib. 
 as to cases provided for by Trustee 
 Act, Y13, 714,840. 
 by Bankruptcy Act, 714. 
 by Charitable Trusts Act, 718, 
 notes (b) and (c) ; and see 
 New Trustees. 
 Declaration of trust, whether suffi- 
 cient to prove, 63, note [u). 
 Filing, where co-trustee should file, 
 
 317. 
 trustee may file where equities doubt- 
 ful, 367, et seq. ; see also 376, note 
 (r) ; and see Special Case. 
 Prayer of, omitting to pray for inte- 
 rest, 359. 
 for account of rents, 752. 
 BILL IN PARLIAMENT, 
 
 application for, by trustees, 516, 
 
 and see p. 499. 
 opposition to, by trustees, 515. 
 BILL OF EXCHANGE, 
 
 distinguished from money and bank 
 
 notes, 758. 
 followed in equity when, ib. 
 whether trust money may be trans- 
 mitted, by, 295, 296. 
 BONA VACANTIA, 198, 324. See 
 
 Crown, 
 BOND, 
 
 Administration bond, 458 ; Cohabi- 
 tation bond, 138, note (x). 
 Given by trustee for due execution 
 
 of trust, 290. 
 Indemnity of, see 721 : whether trus- 
 tee should take, 367. 
 on appointment of new trustee, 
 580, 581. 
 Judgment, on effect of obtaining, 
 
 659, 660, and note [h). 
 Penalty in, creditor cannot claim be- 
 yond, 491. 
 BREACH OF TRUST. See 5ohc7, 
 Payment into Court, Receiver. 
 Charities, remedy for breaches of 
 trust in, 502, 778. See Charities. 
 Generally, co-trustee allowing may 
 be removed, 711. 
 
 duty of in case of, 317. 
 Receipt of trustee known to contem- 
 plate, 331 ; of executor, 458. 
 after breach of, 450. 
 Retire, trustee should not, in favour 
 
 of one who contemplates, 580. 
 Sale cannot be enforced in breach 
 
 of, 415. 
 Solicitor wilfully advising or concur- 
 ring in, liable to be struck off the 
 roll, 763, note {s). 
 Liability incurred in certain cases 
 by allowing destruction of con- 
 tingent remainders, 409. 
 by neglect of trustee to enforce 
 covenant, 765; to insure, 764; 
 to purchase stock, 764; where 
 trustees have discretion of in- 
 vesting on stock or real securi- 
 ty, 355, 764 ; to renew, 392. 
 bv purchasing trust estate, 465, 
 
 "469. 
 when tortious sale by trustee of 
 land, 763 ; of stock, 356 ; and 
 see Bankruptcy, Proof in. 
 trustee liable even where loser by 
 breach, 765. 
 not excused by accident in case 
 
 of misfeasance, 766. 
 cannot set off gain in one trust 
 fund against loss in another, 
 766. 
 not charged with imaginary 
 values, or more than he re- 
 ceived, except where great 
 negligence, &c., ib. 
 Nature of liability, 
 
 a simple contract debt, 238, 765. 
 unless trustee accepted under 
 hand and seal, ib. ; but deed 
 must contain words equiva- 
 lent to covenant and be exe- 
 cuted by trustee, 239 ; and 
 see note [y). 
 where co-trustees, joint and seve- 
 ral, 767, 772. 
 Protection against, 
 
 c. q. t. may have administration 
 of trust confided to proper num- 
 ber of proper persons, 710,711. 
 may compel trustee to observe 
 
 duty, 718, et seq. 
 mav restrain trustee from breach 
 of duty, 723. 
 Remedy for, 
 
 (a) By following trust estate into 
 hands of stranger, c. xxvi. 
 s. 1, p. 724. 
 into hands of purchaser with 
 notice or volunteer, 725. 
 See Purchaser, 724, et seq.
 
 INDEX. 
 
 743 
 
 BREACH OF TRUST, continued. 
 not in case of disseisor, 287. 
 case of charity, 726. 
 notice of doubtful equity, 727. 
 purchaser without notice. See 
 
 Purchaser ^1 725, et seq. 
 purchaser of equitable iutei'est 
 
 or chose in action, 729. 
 time within which estate may 
 be followed, 729. See Limi- 
 tation. 
 (&) By following property substi- 
 tuted for trust estate, c. xxvi. 
 s. 2, p. 753. 
 where conversion tortious, c. q. 
 t. has lien as against trustee, 
 or those who represent him in 
 right, 756. 
 case of assets employed in trade, 
 760. 
 Bank notes, bills, &c., 757, 
 
 758; see 759. 
 land. See Money, inf. 
 money, 757, 758. 
 invested by trustee in land, 
 762; see 757. 
 where trust money is only 
 part of purchase money, 
 c. q. t. has lien for trust 
 money and interest, 763. 
 where the entirety of pur- 
 chase money, c. q. t. may 
 take the land itself, sem- 
 ble, 763; see note [q). 
 mixed with trustee's money, 
 c. q. t.has lien on the whole, 
 759. 
 paid into bank to simple ac- 
 count with trustee, 760,761. 
 (c) Personal, c. xxvi, s. 3, p. 763. 
 against corporation, 763; corpo- 
 rators, co-trustees, 767, 768 ; 
 see 773. 
 person assuming office of trus- 
 tee, 765. 
 trustee, 763, et seq.; for des- 
 troying contingent remain- 
 der, 406, 409, and see 410; 
 improper lease, 507 : impro- 
 per sale, 415, 428 ; improper 
 purchase by trustee, 465 ; 
 neglect to renew, 392. 
 representative of deceased trus- 
 tee, 765. 
 unless trustee has distributed 
 assets under sanction of 
 court, 765. 
 legatees or next of kin of de- 
 ceased trustee where assets 
 distributed, 765. 
 trustee primarily liable, but 
 
 has his remedy against c. q. 
 t. gaining by breach of trust, 
 392, 768, see note (w). 
 account of mesne rents and 
 profits when against trustee, 
 752 ; see 224, 466. 
 by proof in bankruptcy, against 
 bankrupt trustee, 357, 771, 
 772. 
 in case of co-trustees, 773. 
 And see Bankruptcy, Proof 
 in. 
 by stopping pai'tial interest of c. 
 q. t. who concurs in breach, 
 771 ; and see 353, 392, 846. 
 [d) how bai-red. 
 
 by conduct of c. q. t. 
 by acquiescence, 471, 775, et 
 seq. ; concurrence, 773, et 
 seq. ; confirmation, 472, 777 ; 
 release, 777. And see these 
 titles and Limitation oj' Suits. 
 BROKER, 319. 
 
 of trustee, improperly disposing of 
 Exchequer bills, 342, note {t). 
 BUILDING LEASES. 
 
 of charity estates, duration of, 510. 
 with consent of commissioners, 504, 
 511. 
 BUY IN. 
 
 assignees of bankrupts and trustees 
 for sale not authorized to, 423. 
 BUY UP. See Mortgagee. 
 
 trustee cannot buv up incumbrance 
 for himself, 318. 
 BYE LAWS. 
 
 power of making, will not authorize 
 deviation from original intention 
 of charity, 498. 
 
 CANAL SHARES. 
 
 bequeathed in succession, converted, 
 812. 
 CAPRICE, 
 
 court does not act on, 699. 
 
 of c. q. t., trustee not dismissed from, 
 712. 
 
 of trustee, 583, 875. 
 CATHOLIC. 
 
 Roman. See Papistry Acts. 
 CESTUI QUE TRCST. See Chari- 
 ties, Costs, Estate Tail, Feme Cov- 
 ert, Infant, Lien, Liability, Par- 
 ties, Tenant for Li fe. 
 
 Account, right of c. q. t. to have. 
 See Accounts, Mesne Rents and 
 Profits. 
 
 Acquiescence of. See Acquiescence, 
 471, 775, et seq. 
 
 Actions by c. q. t. See Actions. 
 
 Assignment, how c. q. t. may make,
 
 744 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 CESTUI QUE TRUST, continued. 
 of equitable interest, c. xxiii. s. 1. 
 
 600. 
 c. q. t. may assign even a possi- 
 bility, and without intervention 
 of trustee, 600 ; and see Assign- 
 ment, Notice. 
 Bequest by, 617. 
 
 Breach of Trust. See Concurrence, 
 Protection, and liernecli/, inf., and 
 Breach of Trust. 
 Chattels, c. q. t. entitled to posses- 
 sion of trust chattels during his 
 interest, 593, 594 ; case of chat- 
 tels in possession of bankrupt, 
 c. q. t. for life, ib.; see 277, 278. 
 whether c. q. t. may let them for 
 hire, 594. 
 Concurrence of, 771, 773, 846. See 
 
 353, 392, and Concurrence. 
 Confirmation by, 472, 777. See Con- 
 
 firmation. 
 Consent of. See Consent. 
 Conveyance, when c. q. t. should 
 join in, 427. See 881, note (ft), 
 when and how c. q. t. may require 
 trustee to make, 595, 596 ; and 
 see 600, Conveyance. 
 Devise by, 615, et seq. 
 Dividends, c. q. t. usually put in 
 possession of, by power of, attor- 
 ney, 594. 
 Ejectment, c. q. t. cannot recover 
 real estate in, 591. 
 unless surrender can be presumed, 
 ib. 
 must bring his action in name 
 of trustee, 591. 
 Estate of, 
 
 under simple trust, c. xxii. s. 1, 
 
 585. 
 special trust, c. xxii. s. 2, 597; 
 and see Special Trust, inf. 
 properties of. See Trust. 
 Failure of. See Failure. 
 Fraud of, 39, 774. See Fraiul. 
 Ignorance of, 472, 737. See Igno- 
 rance. 
 Inquiries to ascertain cs. q. t., 598. 
 of c. q. t. trustee must answer, 
 427, 599. 
 jus habendi and jus disponendi of, 
 
 585, 595. 
 Laches of. See Ladies. 
 Pernancy and profits of trust estate, 
 
 c. q. t. entitled to, 585, et seq. 
 Possession of chattels by c. q.t. See 
 Chattels, Dividends, sup. 
 of real estate by c. q. t. 
 
 where trust simple, c. q. t. will 
 be put in possession, 585. 
 
 cases where other interests 
 affected, 586, et seq. 
 of c. q. t. subject to a charge. j 
 
 586. 
 of feme covert entitled for 
 separate use, 590 ; see 
 589. 
 c. q. t. entitled to, in equity 
 only, 590. 
 is at law tenant at will, 590 : 
 see Ejectment, sup. 
 Privileges of to be juror, 592. 
 
 if in possession to vote for coro- 
 ner, 269 ; but qu., 592, 593. 
 to sport ; to vote for member of 
 Parliament, 593 ; see 270. 
 Protection of, c. q. t. may compel 
 trustee to observe acts of duty, 
 718, et seq. 
 may enforce trust, 597. 
 
 may have proper trustees, 710, 
 711. See Neiv Trustees. 
 trust money paid into court in 
 
 what cases, 864, et seq. 
 receiver appointed, in what 
 cases, 869, et seq. 
 in case of tenant for life re- 
 fusing to renew, 722. 
 may restrain trustee from breach 
 
 of duty, 723. 
 security ordered from trustee, 723. 
 may have contingent interest se- 
 cured, 723 ; see 865, 868. 
 Real estate of. See Ejectment, sup. 
 Release by. See Release. 
 Remedy of, for breach of trust. See 
 Breach of Trust, Mesne Rents. 
 Payment into Court, and Recei- 
 ver, and Protection, sup. 
 by following trust estate into hands 
 of stranger, c. xxvi. s. 1, 724, 
 et seq. 
 by following property into which 
 trust estate has been converted, 
 c. XXVI. s. 2, p. 753. 
 personal against trustee, &c., e. 
 
 XXVI. s. 3, 763. 
 for tortious conversion, 825. See 
 Conversion. 
 Share, aliquot, c. q. t. of, 850, 865. 
 Simple trust, c. xxii. s. 1, 585. 
 Special trust, c. xxii. s. 2, 597. 
 each c. q. t. entitled to enforce to 
 
 extent of his interest, 597. 
 where trust lawful, 599. 
 where one c. q. t., or all unani- 
 mous, special trust becomes a 
 simple trust, 597. 
 special trust proceeds until c. q. 
 t.'s election know, 598; and see 
 Special Trust.
 
 INDEX. 
 
 745 
 
 CESTUI QUE TRUST, continued. 
 Title deeds, how far c. q. t. has right 
 
 to custody of, 591, 592. 
 Trustee, whether c. q. t. may be, 40. 
 Who may be c. q. t., c. xii. s. 3, 
 
 41 ; and see Alien, Crown. 
 Vouchers, c. q. t. may inspect, but 
 pays for copies of, 428 ; see 599. 
 Will, c. q. t. may dispose of his equi- 
 table intei'est by, Gla, et seq. 
 CHAMBERS, 
 
 administration order at, 856. 
 jurisdiction of chancery judges at, in 
 case of charities — with income 
 over £30, 718, and note (6), or of 
 City of London charities, 784. 
 CHANCELLOR, 
 
 his jurisdidtion over lunatics and 
 idiots, how derived, 835, note {p) ; 
 see 827. See as to jurisdiction of 
 lords justices under" Trustee Act, 
 883, note (e). 
 may in certain cases be visitor, 495. 
 CHANCERY, 
 
 alone has jurisdiction of trusts, 19. 
 its jurisdiction over corporate bodies, 
 493, 495. 
 CHAPEL, 
 
 Endowment of, how transmissible at 
 
 law, 105. 
 Minister of, in case of dissenters, may 
 be dependent on will of congre- 
 gation, 498. 
 how elected, where no directions 
 
 in deed of endowment, ib. 
 in possession, retained till cause 
 
 heard, ib. 
 tenant at will, of trustees, ib. 
 Trusts of, trustees cannot change, 
 
 496. 
 Trustees of, how appointed where no 
 direction in deed of endowment, 
 498. 
 CHARGE, 
 Debts or legacies of in will, raises 
 
 implied trust in devise, &c., 173. 
 ■where it implies power of sale, 251 ; 
 see 248, and 440, et seq. See 
 Receipts (Charge of Debts.) 
 Devise by trustee in general terms, 
 its operation on, 263. 
 does not prevent legal fee in mort- 
 gage from passing under " secu- 
 rities" for money, 264. 
 on devise distinguished from excep- 
 tion from devise, 191, et seq. 
 Distinguished from partial declara- 
 tion of trust, 179 ; and see Result- 
 ing Trust. 
 Duplication of, 167. 
 Limitation, late statute of, mere 
 May, 1858.— 48 
 
 charge not an express trust 
 within, 746. 
 secus as to charge, coupled with 
 
 duty, 746, 747. 
 not barred by, whilst secured by 
 unbarred term, 747. 
 Power to, not a usual power, 165. 
 CHARGING ORDER, under 1 & 2 
 Vict. c. 110, 669, 671. See Judg- 
 ment. 
 CHARITABLE TRUSTS ACT. See 
 Charity Commissioners, bQ4:, 511, 
 784. 
 Amendment Act, 785. 
 CHARITABLE USES, 
 
 Frauds, Statute of, within, 61. 
 Purchaser without notice from pur- 
 chaser with, bound by, 726. 
 Statute of, commission under, 779. 
 CHARITIES. See Information, Mort- 
 main, Visitor. 
 Account, 786, et seq. See Remedy, 
 
 inf. 
 Administered by trustees, where, 
 
 492. 
 Alienation, of charitable property by 
 trustees, not permitted, 502. 
 
 whether absolutely, or for re- 
 served rent, 503. 
 or by granting long, renew- 
 able, or reversionary terms, 
 ib. 
 permitted under special circum- 
 stances, 503, 515, 782 ; see 
 note {lo). 
 and leases, sale, or exchange can 
 now be made with consent of 
 commissioners, 504. 
 Alteration of scheme or purpose, 
 not permitted, 495, 496. 
 
 notwithstanding power to make 
 bye-laws, 499. 
 trust originally intended will be 
 preserved, 497 ; and see 499, 
 711. 
 but letter may be contravened, 
 where spirit of trust preserved, 
 499. 
 act of of parliament necessary for 
 total alteration, 499. 
 how application for act autho- 
 rized, 499, 785. 
 Breach of trust, by retainer of 
 Charity Funds, 502. See Infor- 
 mation, Remed;/, inf. 
 Commissioners of inquiry into, 783, 
 
 784; see 779. 
 Construction of trusts for, 495, et seq. 
 for "chapel," 495, 496, 497; "re- 
 pairing and rebuilding," 501. 
 "free grammar-school" "free-
 
 746 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 CHARITIES, continued. 
 
 school," (see 3 & 4 Vict. c. 
 77,) 499, 500. 
 loans, 502. 
 
 " master, finding a," 501. 
 " minister," 498. 
 "poor, relief of," 501. 
 rates, in aid of, 496. 
 "repairing," 496,501. 
 salaries, where augmentation al- 
 lowed, or reduction ordered, 
 502. 
 " worship of God," where exe- 
 cuted in favour of established 
 form of religion, 497. 
 where in favour of dissenters, ib. 
 species of religious worship pri- 
 ma facie determined by trust 
 deed, 497 ; and see 499. 
 and if not defined, then by 
 usage ; and see 7 & 8 Vict. 
 c. 45, s. 2, 497 ; see also 
 495,497, 499, 711. 
 Duties of trustees for, c. xviii. p. 
 492. 
 See Alienation, Alteration, sup. 
 lacorporated, government of corpo- 
 ration belongs to visitor, 492 ; 
 and see Visitor. 
 raanagement of revenue subject 
 
 to chancery, 493. 
 new donations distinguished from 
 original endowment, as respects 
 visitorial power, 494. 
 Investment of accumulations, 
 
 whether in purchase of land, 
 
 504. 
 on mortgage, 504, 505. 
 of moneys arising from sale or 
 exchange with consent of 
 commissioners, 504. 
 Limitation, Statute of, as to Chari- 
 ties. See Bemedy, (6), inf., 749, 
 750, 786. 
 Leases of Charity Lands, 
 
 Charitable Trusts Acts, how to be 
 
 made under, 504. 
 consideration for, fines, rents, &c., 
 505, et seq. 
 should be adequate, when grant- 
 ed, 506 ; see 507. 
 whether fines might have been 
 
 taken for, 506. 
 direction by founder that rent 
 should not be raised, not 
 taken literally, 507. 
 tenant who dealt fairly not turn- 
 ed out, 507. 
 allowance to tenant for per- 
 manent improvements, 
 511. 
 
 granted at undervalue, who shall 
 compensate charity, 507. 
 covenants for trustee's private 
 advantage, should not contain, 
 505. 
 duration of building leases should 
 not exceed 60 or 90 years, 
 510 ; see now, 511. 
 husbandry leases, should not 
 exceed 21 years, 508 ; see 
 now, 511. 
 for years determinable on lives, 
 have been sanctioned, 509, 
 510 ; but see 543. 
 so, for lives on payment of fines, 
 510. 
 governors cannot lease to, or in 
 trust for, one of themselves, 505. 
 relation of trustees to, unadvisa- 
 ble, 505, 507. 
 Mesne rents and profits. See Ee- 
 
 medy, [h), inf. 
 New trustees, appointment of, 498. 
 711,716 ; see 718; and ?io/e (6)'. 
 direction to appoint when reduced 
 to a given number, 527. 
 Payment of stock, &c., held on trust 
 for, to official trustees, by order 
 of commissioners, an indemnity. 
 382. 
 Realty, conveyance of, upon trust for. 
 what formalities necessary under 
 9 Geo. 2, c. 36, 504; see 132. 
 where charity may take lease 
 stamped with trust for conver- 
 sion, 808. 
 Remedy for breach of trust, 
 (a) Mode of, c. xxvi. s. 4, 778. 
 ordinarily by information, 779 ; 
 where by bill, 779, note (1). 
 relators joined on account of 
 costs, 779. 
 commissions under Statute of 
 
 Charitable Uses, 779. 
 by petition under Romilly's Act, 
 779. 
 construction of act, 780; cases 
 
 within, 781, 782. 
 proceedings under, 782, 783. 
 under Charitable Trusts Act, 784. 
 by equity judge at chambers, 
 where income above 30Z. per 
 annum, or charity within City 
 of London, 784. 
 by District Court of Bankruptcy 
 and County Court, where in- 
 come less than 30^. per an- 
 num, ib. 
 appeal from, when allowed, 
 
 784. 
 previous concent of charitv
 
 INDEX. 
 
 r47 
 
 CHARITIES, continued. 
 
 commissioners to proceed- 
 ings, when required, 785. 
 (6) Extent of, 786, et seq. 
 
 Account of mesne rents, what di- 
 rected, 789 ; see 788. 
 Compromise with attorney-gene- 
 ral, when allowed from hard- 
 ship, 789. 
 Corporation property, how at- 
 tached, 791. 
 Inconvenience, how far applicable 
 
 as a bar, 787, et seq. 
 Limitations, Statute of Charitable 
 Ti'usts not within, 786. 
 whether within late stat., 749, 
 750, 786. 
 Mistake, trustees acting from, not 
 
 made to account, 790. 
 Parish, no retrospective account 
 
 against, 791. 
 Presumption, how far it applies, 
 787. 
 corporation compared with in- 
 dividuals, 790. 
 Rents. See Lease, sup.. Resulting 
 
 Trusts, inf. 
 Resulting Trusts, how far legacies 
 to charities result, 191, et seq. ; 
 
 see 193, 194, note ((')• 
 not presumed on gift in favour of 
 charity, but with no object, &c. ; 
 but court directs application, 
 198. 
 increased rents applicable as ori- 
 ginal gift, 198. 
 exception to this rule, 199. 
 Schemes for, under Romilly's Act, 
 782. 
 new, approved provisionally by 
 commissioners, 785. 
 Trustees of, entertaining opinions 
 contrary to founder, removed, 
 711. 
 majority of, binds minority, 298. 
 Court sometimes appoints part of 
 number to act as quorum, 299. 
 Trusts for, synonymous with public 
 trusts, 23. 
 CHARITY COMMISSIONERS, 
 Advice, may give, and persons act- 
 ing under, indemnified, 785. 
 Attorney-General, they may certify 
 
 cases for his interference, 784. 
 Exchange of lands, may authorize. 
 
 See Investment, inf., 504. 
 Inquiries, may make, 784. 
 Investment of moneys arising from 
 
 sale or exchange by, 504. 
 Leases, may authorize building, &c., 
 504. 
 
 trustees of charities must have 
 sanction of, for lease longer than 
 21 years, 511. 
 New trustees, appointment of, their 
 
 sanction required for, 718. 
 
 Official trustee of charity lands, who 
 
 is, 78G. 
 
 of charity funds, 785 ; see 382. 
 
 Proceedings, before taking, their 
 
 consent where necessary, 784, 785. 
 
 Sale of lands, may authorize. See 
 
 Investment, sup., 504. 
 Scheme, new, may provisionally ap- 
 prove (to be submitted to parlia- 
 ment), 499, 785. 
 CHARTER, charities by, 492. 
 CHATTELS. See Administration, 
 Chose in Action, Executor, Deed, 
 Failure of c. q. t., Forfeiture, In- 
 vestment, Money, Policy. 
 Assets in hands of executor, 261, et 
 
 seq., 681, 685. See Executor. 
 Custody of, c. xiii. s. 2, 332. 
 Devolution of, to administrator, or 
 executor of ti-ustee, 260; see 279. 
 Disclaimer of, 236. 
 Execution, taken in, 647, 648, 662. 
 whether for debt of trustee, 261, 
 280 ; and see Execution. 
 Executory trust of, in articles, how 
 construed, 149, et seq. 
 in wills, ib., 158, et seq. See E.ve- 
 cutory Trusts. 
 Interest, where trustees take under 
 a charge, 251 ; and see 257. 
 under devise, subject to late Wills 
 Act, 259. 
 limitation to A. and his heirs 
 for certain duration, 255. 
 Limitation, how far chattels capable 
 of, at law bv deed, 104; by will, 
 ib. 
 chattels may be subjected to, by 
 
 way of trust, 104. 
 limited by way of trust to A. and 
 his heirs, are personal estate, 
 131. 
 cannot be entailed, ib. ; and see 
 Executory trusts. 
 Personal, c. q. t. entitled to posses- 
 sion of, 593. 
 money, notes, &c., distinguished 
 
 from other chattels, 758. 
 trust of, not within Statute of 
 Frauds, 61. 
 once created by parol, not af- 
 fected by subsequent parol 
 declaration of settlor, 61. 
 but in case of will, see 66. 
 voluntary settlement of, good 
 against purchasers, 93.
 
 748 
 
 LEW IN ON THE LAW OF TKUSTS, ETC. 
 
 CHATTELS, continued. 
 
 secus as against creditors if set- 
 tlor indebted, ib. 
 Real, of feme covert. See Feme 
 CoveH. 
 prerogative probate,wlien required 
 
 for, 2G1. 
 trusts of, within Statute of Frauds, 
 
 61. 
 voluntary settlement of, void 
 against purchaser, 93. 
 Reputed ownership of, 277, et seq. ; 
 
 see 593. 
 Special trusts and uses, chattels are 
 
 subject to, 4, 5. 
 Tenant for life of, 594. 
 Trusts of. See Limitation, sup. 
 of chattels, are not affected by 
 Statute of Uses, 7. 
 CHILD. See Illegitimate, Infant. 
 purchase in name is prima facie an 
 advancement, 207. See Advance- 
 ment, 2. 
 CHOSE IN ACTION, 85, 86. See 
 Feme Covert. 
 assignment of, by trustee, power of 
 attorney how to be qualified on, 
 42G. 
 notice by purchaser of, how it gives 
 priority, 605, et seq. See Notice. 
 purchaser of, from trustee, holds sub- 
 ject to same equity as trustee, 729. 
 trust, once considered in the nature 
 
 of, 9 ; secus, afterwards, 11. 
 trustee of, should reduce into posses- 
 sion if possible, 326. 
 CHURCH, 
 
 devise of tithes, &c., how carried out 
 in equity, 104 ; and see Advoivson, 
 Chapel. 
 CHURCHWARDENS and Overseers. 
 
 See Overseers. 
 CIRCUITY, 
 
 Court of equity avoids, 749,755, note; 
 and see 94, 660, 661. 
 CLAIM. See Bill in Chancery. 
 adverse to c. q. t., trustees should not 
 make, 325 ; see 878. 
 CLERK, 
 
 election of, 107. See Parishioners. 
 CO-EXECUTOR. See Co-trustee, 
 
 Executor. 
 COHABITATION, 
 
 bonds, 138, note (x). 
 COLLATERAL, 
 
 equitable powers may be, 525. 
 COLLECTOR, 
 trustees may employ, of debts, 557 ; 
 of rents, 556. 
 COLONIES, 
 
 Enactments passed at home, when 
 
 they are bound by, 62. 
 Lands in, within Lord St. Leonards' 
 Trustee Act, 835, note (s), and see 
 Trustee Act, 54, 56. 
 Trust may be usually enforced of 
 
 personal property in, 47. 
 how far, of real estate in, 47, et seq. 
 COMMISSION. See Trouble. 
 
 Executors in the East Indies, whether 
 they may charge, 547 ; see note («). 
 Mortgagees, Trustees, &c., cannot 
 charge, 546. 
 secus as to trustees for absentees 
 of estates in West Indies, 546. 
 may be allowed to trustee by set- 
 tlor, 550. 
 may be stipulated for with c. q. t., 
 
 551. 
 or with court before acceptance of 
 trust, 553, et seq. 
 COMMISSIONERS, 
 
 charity. See Charity Commissioners. 
 COMMITTEES OF LUNATICS, 
 mav not charge for time and trouble, 
 
 546. 
 have no interest, and therefore office 
 
 does not survive, 299. 
 cannot make repairs without previous 
 order, 524. 
 COMMON LAW, 
 
 Courts, have no jurisdiction of trusts, 
 19, 261 ; see 249, note {u). 
 qu. whether they can notice breach 
 of trust, 37, note (n), 581. 
 Trusts at, c. v. s. 1, 56. 
 COMMON, 
 
 Tenancy in. See Joitii tenancy, 
 Tenancy in Common. 
 COMPANY. See Parties, 847, Trus- 
 tee Extension Act, ss. 6, 7. 
 Conversion of shares in, where be- 
 queathed in succession, 812. 
 Public, does not usually take notice 
 
 of trusts of shares, &c., 858. 
 Restraining order under 5 Vict. c. 5. 
 s. 4, applicable to shares in, 860, 
 863. 
 COMPENSATION, 
 
 from person who benefits by breach of 
 trust, 392, 768, 771 ; see 353, 846. 
 in case of charity, lease at underva- 
 lue, 507. 
 COMPLICATED, 
 
 where account is, relief in equity on 
 
 legal title, 753, note. 
 trust whether within Lord St. Leo- 
 nards' Trustee Act, 836, note (x). 
 Statute of Frauds, s. 10, 695 ; 12 
 Vict. c. 110, s. 11, 669. 
 COMPOUND INTEREST, 
 when charged, 362, 363, 397.
 
 INDEX. 
 
 749 
 
 COMPOUNDING, 
 
 with creditors, whether trustee there- 
 by unfit for office, 711, note {g). 
 debts, powers of trustees as to, 520, 
 et seq. 
 COMPROMISE, 
 
 with attorney-general, in accounts of 
 charitable trusts, 789. 
 COMPULSORY, 
 payment into court, c. xxix. s. 4, p. 
 864. See Pai/menf into Court. 
 CONCEALMENT, 
 
 of breach of trust, will make co-trustee 
 
 liable, 317. 
 of fraud, prevents bar to equitable 
 
 relief, 734, 743 ; see 754, note. 
 of right to estate, account carried 
 back to accruer of title, 756, note. 
 CONCURRENCE, 
 c. q. t. by, estopped from proceeding 
 
 against trustee, 773. 
 secus where c. q. t. a feme covert or 
 infant, 774 ; except in case of 
 fraud, ib. 
 
 or as to feme covert, who has 
 separate estate without re- 
 straint, 775 ; conf., 778. 
 or where c. q. t. acts in ignorance, 
 774. 
 CONDITION, 
 
 legacy for charity charged on devise 
 by way of, creates resulting trust, 
 193. 
 CONDITIONS OF SALE, 
 
 what, trustees for sale may impose, 
 423. 
 CONFIDENCE, 
 
 in person explained, 2 ; see 22, 
 
 530. 
 not so strictly applied as to uses, 
 
 10. 
 in what sense a trust said to be, 
 
 15. 
 words expressing testator's confi- 
 dence may raise a trust, 168. 
 CONFIRMATION by C. Q. T. 
 
 of breaches of trust, general requi- 
 sites of, 472,777,778. 
 feme covert cannot make, except 
 as to separate estate, without 
 restraint, 471, 777 ; conf. 778. 
 by widow, of promise made during 
 
 coverture, 776. 
 infant cannot make, 471, 777 ; 
 see 776. 
 CONSENT, 
 by c. q. t. to breach of trust, effect 
 of, 768, 769. 
 feme covert of, required by trust, 
 348. 
 investment to be made with, 340. 
 
 purchase to be made with, 807. 
 CONSIDERATION. See Charities 
 (Leases). 
 Generally 
 
 family differences, I'econciling, a 
 
 good consideration, 94. 
 necessary, is not to support a con- 
 firmation, 472. 
 what sufficient for release or 
 waiver, 737. 
 is not for a trust perfectly 
 created, 81. See Voluntary 
 Assurance. 
 will, consideration is implied by, 
 58, 167. 
 Meritorious, agreement or imperfect 
 trust founded on, how far en- 
 forced, 94, et seq. 
 not against settlor though under 
 seal, 94 ; see note (e). 
 creditors of settlor, or purcha- 
 ser from him, 99. 
 whether against heir or volunteer 
 
 of settlor, ib. ; see note {t). 
 extends to creditor, child, wife, 
 
 95 ; see 796. 
 cannot be urged by parent against 
 his child, 95, note [f). 
 Nominal, 177, on bargain and sale, 
 
 96. 
 Valuable, where it exists trust not 
 averrable, 57; trust enforced, 81. 
 to whom consideration of mar- 
 riage settlement extends, 406. 
 may be proved aliunde as against 
 third persons where deed ap- 
 parently voluntary, 477. 
 CONSOLS, 
 
 £3 per cent, proper investment of 
 trust money, 351 ; see 813. 
 CONSTRUCTION, 
 Devise, of, to uses, 258. 
 Instrument of, is question for court, 
 
 73, 74. 
 Legal estate, as to, taken by trustee, 
 c. XI. s. 1, 246, et seq. ; and see 
 Legal Estate. 
 Powers of, 527, et seq. See Powers. 
 Trusts of, governed by same rules as 
 construction of legal estate, 141. 
 for charities. See Charities (Con- 
 struction), 495, et seq. 
 executory in marriage articles, 
 147, et seq. 
 in wills, 153, et seq. See Exe- 
 ctttori/ trusts. 
 CONSTRUCTIVE TRUSTS. See 
 Trade. 
 Bankruptcy of trustee, how affected 
 
 by, 276. 
 Cases of agents, factors, &c., 225 ;
 
 750 
 
 LEWIX ON THE LAW OF TRUSTS, ETC. 
 
 CONSTRUCTIVE TRUSTS, con- 
 tinued. 
 see 217, 220 ; but see, as to agent, 
 
 226, 459. 
 attorney violating his duty, 226. 
 decree for sale, person to convey 
 under, 839, note (?) ; see 834, 
 note (n), 836, note (x), 837, 
 note (6), and see 882, note (_/'), 
 894, note (Z). 
 equitable waste, 225. 
 holder of title deeds how far con- 
 structive trustee for remainder- 
 man, see 227, 228 ; see 591. 
 notice of trusts, constructive trus- 
 tee by means of, 228. 
 on renewal of leases by executors, 
 trustees, &c., 217. 
 mortgagee, 218; but see 221. 
 tenant for life, or other having 
 
 partial interest, 218. 
 yearly tenant, 219 ; how far by 
 tenant at will, or by suffer- 
 ance, 219. 
 what circumstances,will not vary 
 rule, 220 ; and see note (/"). 
 expenses of renewal by tenant 
 for life, 222. 
 how far annuitants should con- 
 tribute to fine, 223. 
 trustee's lien for, 222. 
 mesne rents and profits and sub- 
 fines, trustee accounts for, 223 ; 
 see 224. 
 renewal, right of, trustee cannot 
 
 sell, 220. 
 reversion, how far trustee purchas- 
 ing, a constructive trustee, 225. 
 terms of assignment, from trustee 
 
 to c. q. t., 223. 
 volunteers and purchasers with no- 
 tice from trustee, remedy a- 
 gainst, 224. 
 Distinguished from implied trusts 
 and trusts by operation of law, 140, 
 note(l). 
 Relief as to, barred by laches, 224, 
 742 ; see 750. 
 Statute of Limitations, 729, 730. 
 746. 
 Statute of Frauds, how far it affects, 
 228, et seq., 762. 
 distinction between trust arising 
 on a will and on a conveyance, 
 230. 
 CONTINGENT INTEREST. See 
 Possibility. 
 equitable, c. q. t. may assign, 600. 
 owner of, entitled to have it se- 
 cured, 723 ; and see 868. 
 cost of, filing bill for, 368. 
 
 lands in, disposable under 8 & 9 
 Vict. c. 106, 817, note(n). 
 CONTINGENT REMAINDERS, 
 
 Effect of Fines and Recoveries Act, 
 411; of 8 & 9 Vict., c. 106, 156', 
 412. 
 
 Freehold, where legal, must be sup- 
 ported by particular estate ; secus 
 in trusts, 104. 
 
 Trustees for preserving duties of, c. 
 XV. 404 ; see note (a). Waste, inf. 
 
 1. Until eldest son has attained 21, 
 obligation to preserve remain- 
 ders imperative, 405, though 
 settlement voluntary, 406. 
 
 Court will not sanction destruction, 
 407 ; exceptions to rule, 407, 
 408. 
 remedy for destruction of, 406. 
 extended only to those who claim 
 
 as purchasers, 406. 
 issue, during life of parent, can- 
 not sue as "heir," 407. 
 
 2. After eldest son has attained 
 21, the trustees become " hono- 
 rary trustees," and the destruc- 
 tion of the remainders is a mat- 
 ter of discretion, 408. 
 
 Court will exercise discretion for 
 trustees, 409. 
 punishes fraudulent exercise of 
 
 discretion, ib. 
 allows destruction on eldest 
 
 son's mai-riage, ib. 
 does not allow destruction with- 
 out cogent reason, ib. 
 a fortiori not for culpable ob- 
 ject, as payment of father's 
 debts, ib. 
 but trustee not necessarily lia- 
 ble because court would not 
 have so acted, 410. 
 whether any distinction between 
 will and settlement, 410, 411. 
 Trustees for preserving limitation to, 
 how usually framed, and object of, 
 
 404. 
 " and their heirs," whether it can 
 
 be cut down, 253, et seq. 
 whether necessary since 8 «fe 9 
 
 Vict. c. 106, 156,412,413. 
 a special trust not within Statute 
 of Uses, 247. 
 Receiver, trustee for preserving, may 
 
 be, 319. 
 Waste, duty of trustees to preserve, 
 to prevent, 408. 
 " CONTINUANCE OF TRUST," 
 
 power during, 531. 
 CONTRACT. See Agreement, Cove- 
 nant, Specijic Performance.
 
 INDEX. 
 
 ■51 
 
 CONTRACT, continued. 
 by feme covert as to separate pro- 
 perty, 633. 
 under Fines and Recoveries Act, 
 634, note (n). 
 private, trustees may sell by, 422. 
 purchase, for, of fee by A., if A. die, 
 executor pays price, but heir en- 
 titled to purchase, Y99. 
 sale, for, raises implied trust, 174. 
 of land by A., if A. die, fee de- 
 scends to heir, price belongs to 
 executor, 799. 
 CONTRIBUTION, 
 
 charities founded by means of, their 
 
 trusts, how expounded, 497. 
 co-trustees, amongst, on breach of 
 trust, 768; as to costs, 767. 
 none where fraud, 768. 
 secus in favour of assignees of 
 
 bankrupt trustee, 773. 
 how worked out, 845, 846. 
 rule of, in renewable leaseholds, 395, 
 398, et seq. See Renewable Lease- 
 Jiolds. 
 CONTROL, 
 
 how far court will control powers, 
 
 538. See 696, Foicers. 
 trustee must not put trust property 
 out of his own, 334, et seq. 
 CONVERSION. See Gavelkind, Re- 
 duction (into possession). 
 Implied, in cases of personal proper- 
 ty given in succession, 
 (a) where investment not wasting, 
 but not authorized by court, 
 812; see 352. 
 6. g. foreign bonds or stocks, 
 shares in canals, insurance, 
 railway companies, &c., ib. 
 secus where mouey invested 
 on mortgage unless benefi- 
 cial to call it in, 354. 
 where stock other than £3 per 
 cents, specifically bequeath- 
 ed, 354. 
 India, assets in, as to, 355. 
 [h) where property is wasting, as 
 leaseholds, long annuities, &c., 
 808; see 352. 
 secus where intention that proper- 
 ty should be enjoyed in specie, 
 809, et seq. 
 e. g. by specific bequest of 
 leaseholds or stock, 809, et 
 seq. 
 by mention of rents or divi- 
 dends, 809, et seq. 
 by direction to convert, &c., at 
 period subsequent to testa- 
 tors death, 809, 810. 
 
 Income accruing before conversion, 
 application of proportion of ten- 
 ant for life after testators death, 
 813, et seq. 
 where accumulation directed, and 
 investment, he takes income 
 from end of first year, 813. 
 where investment directed, he 
 takes from testator's death, if 
 funds then invested, otherv/ise 
 from investment, if made in first 
 year, 814. 
 before conversion, he takes rea- 
 sonable fruit of property, 814 ; 
 see 815, note (x). 
 he must refund if he take undue 
 
 proportion, 353. 
 and if he is insolvent, semble trus- 
 tees liable, ib. ; and conf. 768. 
 rule where property incapable of 
 immediate conversion, 815, 
 810. 
 where discretion given to trus- 
 tees as to time of conversion, 
 815. 
 as to rents of devised estates, 
 816. 
 Land to he converted taken as money, 
 807. See Resulting trust. 
 e. g. alien may take proceeds, 307 ; 
 bequest of personal estate, ii 
 passes by, ib. ; not bequeathed, 
 it goes to personal representa- 
 tive, ib. ; is not subject to pro- 
 bate duty, ib. 
 charity, where it may betaken by, 
 
 808 ; but see note [m). 
 elect, party entitled may, to take 
 as land, 598, 816. See Elec- 
 tion. 
 how election presumed or ex- 
 pressed, 823, 824. 
 imperative, conversion must be. 
 
 808 ; and see note (n). 
 judgment, whether subject to, 653. 
 mortgagee selling under power of 
 sale, who entitled to surplus pro- 
 ■ ceeds, 808. 
 
 option to purchase, whether exer- 
 cise of, effects retrospective con- 
 version, 808 ; but see note {p). 
 Money to he laid out on land, taken 
 as land, 793, et seq. See Re- 
 sulting trust. 
 e. g. subject to curtesy, 793 : 
 quffire, whether to dower, 794, 
 795. 
 devised by description of" lands,'' 
 796 ; not (formerly) by in- 
 fant's will, ib. ; conf. 816. 
 but formerly -bequeathed by
 
 752 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 CONVERSION, continued. 
 
 unattested will operating by 
 election, 824, 825. 
 escheat, not subject to, 795. 
 hotchpot, not brought into (for- 
 merly,) by child receiving or- 
 phanage share, 797. 
 judgment, bound by, 796. 
 personal assets, not accounted, 
 and (formerly not liable to 
 simple contract debts, 796. 
 heir of A. on whom lands were to 
 be settled, when entitled to 
 money, 797, et seq. 
 (a) entitled as against stranger. 
 e. g. bequest by stranger to 
 purchase and settle on A. 
 and his heirs, and A. dying 
 before purchase, 797 ; and 
 see note (y). 
 deposit of money in hands of 
 trustees (whether by A. or 
 stranger,) &c., ib. 
 covenant by stranger on mar- 
 riage of A. &c., ib. 
 ^) entitled as against A.'s exe- 
 cutor (e. g. under covenant by 
 A. on his own marriage) 
 where at A.'s death third per- 
 son has equitable interest, 
 798. 
 otherwise not so entitled, i. e. 
 where money " at home," 
 800. 
 money considered " at home" 
 if received from trustees, 
 804 ; see 823. 
 entitled under bequest by A. to 
 purchase with limitation to 
 A.'s heirs, 805. 
 quasre, whether so entitled under 
 voluntary covenant to lay out 
 money on land, 805. 
 elect, party entitled may, to take 
 as money, 816. See Election, 
 598. 
 how election presumed or ex- 
 pressed, 823, 824. 
 imperative, conversion must be, 
 806 ; and see 797, note (?/). 
 considered so, where uses de- 
 declared exclusively applica- 
 ble to real estate, 806. 
 notwithstanding power to invest 
 on personal security, 806. 
 mere direction to convert at 
 "request," &c., 807 ; unless 
 where " request," &c., intend- 
 ed to be substantial ingre- 
 dient, ib. 
 ToHious, of trust estate hy trustee, 
 
 does not afifect rights of c. q. t., 
 825. 
 case of infant c. q. t. See /«- 
 yrt«# (Conversion), 829. 
 lunatic c. q. t. See Lunatic 
 (Conversion), 825. 
 right of c. q. t. to follow substituted 
 property, c. sxvi. s. 2, 753. 
 See Folloic. 
 CONVEYANCE. See Grant, Trus- 
 tee Acts (Interpretation clause), 
 and 889, note [t). 
 equitable estates, usual form of, 600 ; 
 precautions in 604, et seq. 
 expense of, from old to new trus- 
 tee, when borne by trustee, 711. 
 See Neio trustees. 
 parties to, when c. q. t. should 
 join in, 427; and see 8B1, note 
 {h). 
 when trustee to bar dower, 596. 
 person to make, under decree, a 
 constructive trustee, 839, note 
 (?). See Trustee Act, s. 29 ; 
 Trustee Extension Act, s. 1 ; 
 and see 882, notes (/) [g). 
 to require, under Lord St. Leo- 
 nard's Trustee Act, 837, note 
 [a). See Trustee Extension Act, 
 s. 2. 
 by trustee at direction of c. q. t., 
 595, 596 ; of assignee of c. q. t., 
 600. 
 whether compellable to convey in 
 
 parts, 595 ; and see note [p). 
 by what description ; not bound to 
 convey fee simple to tenant in 
 tail, ib. 
 liabilitv for refusing, 595. 
 CONVICTION, 
 
 of felon, &c., 28. See Forfeiture, 
 Trustee Extension Act, s. 8. 
 COPIES, 
 of vouchers, whether c. q. t. entitled 
 to, 428; of accounts, 599. 
 COPYHOLDS, 
 
 Admission operates retrospectively, 
 249. 
 fine on, paid by trustees, 272 ; at 
 what rate, where co-trustees, 
 272. 
 charged on trust estate how 
 raised, 402. 
 of trustee under mandamus, 324. 
 Customary freeholds, copyholds dis- 
 tinguished from, 283, 616, note (1). 
 Descent of, trust descends to custo- 
 mary heir, 45. 
 Devise of legal estate in, formerly 
 devisable by will unattested and 
 unsigned, 45, note (a).
 
 I X D E X. 
 
 COPYHOLDS, continued.^ 
 
 whether by nuncupative will, 60, 
 
 note (1). 
 so equitable interest, 45 ; even 
 where legal interest not so, 45, 
 46, 616 ; and although no pre- 
 ceding surrender, 616. 
 copyholds now subject to late Will 
 Act, 60, note (1), 617. 
 Dower Act does not affect, 621, 627. 
 Freebeuch, 260 ; equitable interest 
 in copyholds is not subject to, 
 621. 
 For lives, how they devolve under 1 
 Yict. c. 26, s. 6, 203. 
 how far purchase of, in name of 
 stranger, raises resulting trust, 
 203. 
 how far, in name of child, 210, see 
 214. 
 Lord bound by entry of trust on court 
 
 roll, 283. 
 Resulting trust. See For Lives, sup. 
 Surrender, estate passed by, remains 
 in surrenderor until admis- 
 sion of surrenderee, 249. 
 on what principle supplied in equi- 
 tv, 96 ; and see Devise, sup. 
 CORONER, 
 
 trustee in possession votes for, 269. 
 c. q. t. in possession votes for, 269 ; 
 but see 592, 593. 
 CORPORATION. See Overseers,Par- 
 iies. 
 Breach of trust by, 763 ; see 767, 31. 
 
 property how attached for, 791. 
 Bye-laws, may make, but not so as to 
 
 defeat object of foundation, 498. 
 C. q. t., may not be, of lands, with- 
 out license from crown, 43, 131 ; 
 see 31. 
 Civil, might, before Municipal Cor- 
 poration Act, alienate their pro- 
 perty and create trusts, 25. 
 secus now without consent of lords 
 
 of treasury, 25, 31. 
 are now trustees of their property, 
 
 31. 
 visited by crown through Court of 
 Queen's Bench, 495. 
 Costs, instances where visited with, 
 
 505, 877. 
 Distinction between corporations, 
 and individuals as to presumption 
 of notice, 790. 
 Ecclesiastical, bound by restraining 
 
 statutes, 25. 
 Eleemosynary, where crown visitor 
 of, visitorial power committed to 
 lord chancellor, 495. 
 Trustee, a corporation, may be, 10 ; 
 
 of personalty, and how of realty, 
 31. 
 Use, cannot stand seised to, 2. 
 COSTS, 
 Generally, 
 As between party and party — 
 where trustee defendant to 
 bill by stranger which is dis- 
 missed, 872. 
 where trustee disclaims, 235, 
 874. 
 As between solicitor and client — 
 allowed in matters between c. 
 q. t. and trustee where fund in 
 court, 874. 
 doubtful construction, case of, 368. 
 
 See Contingent Interest. 
 extra, trustee who has been paid 
 between party and party, where 
 allowed, 558. 
 cs. q. t., and trustees defending in 
 same interest, one set of costs 
 allowed, 857. 
 as to husband of feme covert who 
 sues for separate property, see 
 858. 
 co-trustees of, severing defence, 
 857. 
 contribution to, between, 767. 
 disclaiming trustee of, 235, 874. 
 excesssive, how moderated, 558. 
 executors in creditor's suit en- 
 titled to, in preference to plain- 
 tiff, 873 ; rule at law different. 
 See of Trustees (&), inf. 
 interest on, not allowed, 558. 
 lien of trustee for expenses, 560 ; 
 
 see 558. 
 lunatic mortgagee or trustee, 883, 
 
 note(i). 
 new trustees of, appointing, 582, 
 et seq ; and see 711, and Trus- 
 tee Act, 1850, s. 51, 901, note 
 
 recovered, how, by trustee, as a- 
 
 gainst c. q. t. or trust estate, 
 
 873; see 558, 560. 
 relators, joined in information for, 
 
 779. 
 sale under decree, petition for 
 
 vesting order, &c., 903, note 
 
 solicitor, his costs when trustee, 
 874 ; and see Solicitor, as to c. 
 q. t. obtaining taxation against 
 558, note (/), 561, note (_r). 
 
 specific performance, in suit for, 
 872; see 421. 
 
 trust to pay, how construed, 564. 
 
 Trustee Relief Acts, under. See 
 Trustee Belief Act, (Costs).
 
 754 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 COSTS, continued. 
 
 void deed, trustee of, where en- 
 titled to costs, 875. 
 Of trustees, &c., in suits between trus- 
 tees and cs. q. t. 
 
 Executor (fixed with costs), 
 denying assets when they exist, 
 
 878. _ _ . 
 
 improperly retaining balances, 
 
 875, 876 ; and see 359. 
 putting next of kin to proof of 
 
 relationship, 878. 
 qu. whether, when interest given 
 against them, 878, 879. 
 (a) Trustee allowed, 367, 368, 873. 
 
 to be paid out of trust fund or by 
 c. q. t., 873 ; see 558, and conf. 
 562, 563. 
 
 and where fund in court, as be- 
 tween solicitor and client, 873 ; 
 not appearing at hearing, and 
 decree nisi againsthim, may pay 
 costs of day, and have cause re- 
 heard, 784. 
 
 secus, after decree passed, ib. 
 [h) Trustee deprived of or fixed 
 with costs, or portion. 
 
 accounts, keeping confused or mis- 
 stating, 877. 
 
 answer, severing improperly, 857. 
 
 appointing new trustee after bill 
 filed sometimes pays extra costs, 
 544. 
 
 convey, refusing to, at c. q. t.'s di- 
 rection, pays costs, 595 ; see 600. 
 
 denying falsely plaintiff's claims, 
 pays costs, 878. 
 
 ignorance, falsely pleading, pays 
 costs, 878. 
 
 instituting suit for his private ends, 
 pays costs, 877 ; see 325. 
 
 leasing charity lands with cove- 
 nants for private advantage (de- 
 prived of costs), 505. 
 
 misconduct, guilty of (pays costs 
 or portion thereof), 875 ; what 
 where misconduct discovered in 
 progress of suit, 876; what where 
 misconduct causes administra- 
 tion suit, ib. ; what where doubt- 
 ful point of law, ib. ; where proved 
 in part, 875. 
 
 trivial, 877 ; purchase of trust 
 property at auction, 875 ; see 
 461. 
 
 mistake, committing, sometimes 
 pays portion of, sometimes de- 
 prived of, sometimes allowed, 
 876, 877. 
 
 neglect, as to proceedings caused by 
 trustee's neglect, 558 ; see 876. 
 
 neglecting to make inventory, de- 
 prived of costs, 244. 
 purchasing trust estate improper- 
 ly, pays costs, when, 469. 
 retaining balance. See Executor, 
 
 sup. 502. 
 retiring, from caprice, pays costs, 
 
 583 ; but see 584. 
 setting up title of his own, or trust 
 different from existing one, pays 
 costs, 878 ; see 325. 
 Trustees of, in suit between trustees 
 and strangers, 872, et seq. 
 trustee on same footing as ordinary 
 plaintiffor defendant, 872 ; see 
 421. 
 made defendant as necessary 
 party and contesting plain- 
 tiff's claim, is not entitled to 
 costs if plaintiff successful, ib. 
 secus when trustee submits point 
 
 to court, ib. 
 case where plaintiff fails in suit, 
 
 ib. See Generally, sup. 
 and see as to frame of suit, 856, 
 et seq. 
 CO-TRUSTEES. See Solicitor. 
 Answer, they should generally join 
 
 in, 857 ; or in suing, ib. 
 Affidavit of, on payment into court 
 under Trustee Relief Act, 376, 
 note (5). 
 Breach of Trust, each is responsible 
 to c. q. t. for whole liability and 
 costs, 767 ; exception, ib. 
 each is liable for concealing or 
 
 permitting, 317. 
 co-trustee permitting, liable to be 
 removed, 711. 
 Contribution between, 767, 768; and 
 
 see 845. 
 Disagreeing, court will exercise pow- 
 er, 696. 
 receiver appointed, 870. 
 Duties, may not delegate discretion- 
 ary power to co-trustee, 297. 
 may not lend trust money to co- 
 trustee, 338, 345. 
 may not permit trust money to 
 remain in hands of co-trustee, 
 306, 309, 330 ; and see 314, 315. 
 may not passively trust co-trustee 
 even though a professional per- 
 son, 243, 244; see 290. 
 Indemnity clause, its effect as to co- 
 trustees, 317. 
 Joint, their office is, 298 ; see Survi- 
 vorship, inf. 
 e. g. they must jointly give receipts 
 for principal moneys (general- 
 ly), 298, 448, 449. 

 
 INDEX. 
 
 755 
 
 CO-TRUSTEES, continued. 
 
 but any one may receive dividends 
 or rents, 299. 
 they must all prove in bank- 
 ruptcy (generally), 298. 
 they must join in conveying, 
 
 299. 
 but in public trusts majority 
 
 binds, 298. 
 aud court sometimes allows a 
 part to form a quorom, 299. 
 Liability, one is not liable for the 
 acts or defaults of another, 302. 
 nor for joining pro forma in re- 
 ceipts, 304. 
 unless where money improperly 
 
 raised, 306. 
 and see Breach of trust, sup. 
 Parties, how they must join in suing 
 and defending, 85Y. 
 necessary, see 841, 845, et seq. 
 See Parties. 
 Payment to, safe to pay into a bank 
 
 to their joint account, 330. 
 Survivorship of office, 299, 300, note 
 {/), 419, 849. 
 notwithstanding power to appoint 
 new trustees, 301 ; and see 419. 
 COUNSEL, 
 advice of, 366, 595 ; as to disclaimex', 
 234. 
 trustee allowed fees paid to, 558. 
 COUNTY COURT, 
 
 Judgment of, enforced in equity, 663. 
 Jurisdiction of, in charities whose 
 income under £30, 718, note 
 (h), 784. 
 appeal from, to Chancery, when, 
 784. 
 COURT, 19, 20. See Chancenj, Com- 
 mon Law, Spiritual, New trus- 
 tees, Poivers. 
 assignment of fund in, 613, 614. 
 COVENANT. See Action, Advan- 
 tage, Lease. 
 " Grant, bargain, and sell," under 
 Yorkshire Registry Acts, has force 
 of covenant for title, 596, note (r). 
 Form of, in conveyances, &c. 
 
 by devisees of lessor who has cove- 
 nanted for renewal, 425, note (/t). 
 executors of one who has agreed 
 
 to take a lease, ib. 
 
 mortgagees and trustees for sale, 
 
 425 ; for production of deeds, ib. 
 
 on assignment of lease, 420 ; see 
 
 223. 
 
 Not to sue, or bond compared with 
 
 release, 773. 
 To stand seised, extended to brother, 
 child, cousin, nephew, or wife, 96. 
 
 required a deed, 95. 
 to use of stranger in blood, not 
 enforced in equity, 94. 
 To settle property, 174, 762. See 
 Demerara. 
 acquired during coverture, 174. 
 To transfer stock, liability of trustee 
 
 for not enforcing, 765. 
 Trustee by, a breach of trust is a 
 
 specialty under, 238, 765. 
 Voluntary, carries consideration at 
 law, 93. 
 not specifically executed in equity, 
 
 94, note (e). 
 by A. to purchase lands to be set- 
 tled on A, and his heirs, qu. 
 whether A.'s heir takes under, 
 805. 
 COVERTURE, ^gq Feme Covert. 
 CRASSANEGLIGENTIA,337. See 
 
 Neglect. 
 CREATION OF TRUST, 
 By act of a party. 
 
 Formalities required for, c. v. 56. 
 See Averment; I'rauds, Statute 
 of; Wills, Statute of; Transmu- 
 tation of Possession. 
 Object proposed by, c. vi. 103. See 
 
 Latcfnl, Unlawful trusts. 
 Parties to, c. iii. p. 24. See C. q. t. 
 
 Settlor, Trustee. 
 Property, what may be subject of, 
 c. IV. 45. See Property. 
 CREDITORS. See Assets, Debts. 
 Acquiescence, when bound by, in 
 purchase by trustees, &c., 471 ; 
 see 737, 777. 
 Confirmation, where bound by, 473. 
 Execution, creditors taking out, may 
 purchase goods sold under, 465. 
 taking trust estate under, bound 
 by trust, 280. 
 Separate property of feme covert, 
 
 their remedies against, 640, 642. 
 Trust, their rights cannot be defeated 
 
 by means of, 132, et seq. 
 Voluntary settlement, by one largely 
 indebted, is void against, 93. 
 for, whether they can enforce its 
 execution, 101 ; see 481. 
 CROWN. See 779, Chancellor, 835, 
 note (p). Forfeiture; Frauds, 
 Statute of; Pension. 
 Alien's trust of real estate, crown, 
 how entitled to, 43, 132. See Alien. 
 Bonum vacans where c. q. t. dies 
 intestate and without next of 
 kin, crown takes residuary per- 
 sonalty, 198,324. 
 but executor where appointed takes 
 as against crown, 59, 324.
 
 756 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 CROWN, continued. 
 
 C. q. t., crown may be, 42. 
 Prizes, taken in war, vest in, 25. 
 grant of, to trustees for distribution 
 revocable until distribution, 25, 
 101. 
 Trust, bow it may create (of private 
 property), 24, 25. 
 declaration of, by or to crown, 59. 
 mode of enforcing against crown 
 doubtful, 30. 
 Use, can declare, by letters patent, 59. 
 
 cannot stand seised to, 2. 
 Visitor, where, 495. 
 Will of sovereign, 25. 
 CURTESY, 
 Admitted of, an equity of redemption 
 or trust, 621. 
 unless where husband an alien, ib. 
 and if feme covert had equitable 
 
 seisin, 622. 
 notwithstanding trust for separate 
 
 use, 623, 
 of money to be laid out on land, 
 
 622, 793. 
 why curtesy and not dower of a 
 trust, 625 ; see 12. 
 Not admitted of, a use, 4. 
 Tenant by, bound by a trust, 11, 
 2G0, 279 : not by a use, 3. 
 CUSTODY, 
 
 of trust chattels, c. xiii. s. 2, 332. 
 CUSTOM, 
 
 Of Kent. See Infant (Feoffment). 
 CUSTOMARY FREEHOLDS, 
 Distinguished from copyholds, 284, 
 
 616, note (1). 
 Lord taking by escheat, whether 
 bound by entry of trust upon court 
 roll, 284. 
 Trust of, must be devised according 
 to the Statute of Frauds, 616. 
 
 DAUGHTERS, 
 
 Advancement for, presumed, 216. 
 Included under " heirs female," 
 " heirs of body," or " issue," in 
 articles, 149, 156. 
 how the limitation will be execut- 
 ed, 149. 
 DEBTS, 
 Generally. 
 destruction of contingent remain- 
 ders held justified by payment 
 of debts, 408. 
 executor may not sell to pay his 
 own debts, 456, qu. if he be spe- 
 cific or residuary legatee, 456 ; 
 or jointly with others, 457. 
 specialty and simple contract. See 
 Specialty, Simple Contract. 
 
 trust to pay surplus power of re- 
 ceipts, unless debts scheduled, 
 435, 436. 
 
 trustee may appoint collector, 55 ; 
 compound, 520 ; may not buy 
 up for himself, 318. 
 Trusts for Payment of, c. xvii. 474, 
 
 et seq. 
 Created by act inter vivos, 474, et 
 seq. 
 
 (a) person not trader may create 
 of all or parts of property for 
 all or some creditors, 474, 475. 
 
 unless where fraudulent within 
 Insolvent Act, 475. 
 
 or where actual fraud, 476. 
 
 voluntary trust by, whether revo- 
 cable or valid, 476. 
 must be strictly fulfilled, 476. 
 
 trust apparently voluntary may be 
 shown aliunde to be founded on 
 value, 477. 
 
 (&) trader may not assign whole 
 property upon, 477. See Bank- 
 ruptcy (Assignment), and 479. 
 
 where assignment unimpeachable 
 under late Bankrupt Act, and 
 when trustees may safely act 
 under, 479, 480. 
 
 may assign part of property upon, 
 480 ; and see 477, note [w). 
 
 Irrevocable, trusts, are where by 
 way of security to, or arrange- 
 ment with creditor, 481. 
 
 voluntary trusts, how far revoca- 
 ble, 101, 476, 481, 483. 
 Created by will, 474 ; and see 485. 
 Trustees for payment of their Duties, 
 
 c. XVII. 474. 
 Debts, what payable. 
 
 (1) in trust created by deed, debts 
 owing at date thereof, (2) by 
 will, debts owing at death of 
 testator, 483, 484 ; unless where 
 contrary intention, ib. 
 
 construction of " all debts then ow- 
 ing by him and which affect the 
 estates thereby conveyed," 484. 
 
 creditors who come in within a 
 certain time, clause is direc- 
 tory, 486. 
 but creditor who repudiates 
 deed, cannot afterwards take 
 benefit of it, ib. 
 where trustees have discretion 
 to admit creditors' claims, 
 486. 
 
 infant, debts contracted by, for 
 necessaries, 485. 
 
 Limitation, Statute of, debts bar- 
 red by, at date of deed, or of
 
 INDEX. 
 
 757 
 
 DEBTS, continued. 
 
 testator's death, not revived by 
 trust, 484 ; see p. 520, statute 
 will not run afterwards, 484 ; 
 as to trust by will of personalty, 
 see 485. 
 mortgagee of, with covenant, or 
 other creditor, with specific lien, 
 485, 486. 
 Interest on, bond creditors cannot 
 receive more than amount of 
 penalty, 491. 
 specialty debts carry interest to 
 time of payment, even though 
 released by creditors' deed, 491. 
 simjsle contract on debts not al- 
 lowed under trust, 490. 
 as to rights of creditors after 
 decree under 46th Order of 
 Aug. 1841, 490, note(<7). 
 exception to rule, 490. 
 unless creditors have stipulated 
 for it, 491. 
 Order of payment. 
 
 creditors paid before legatees, 487. 
 all creditors paid pari passu, in ab- 
 sence of contrary directions, 488. 
 whether trustee and executor may 
 pay his own debt first, 488. 
 Resumption by trustees of property 
 after parting with it, 487, 522. 
 DECLARATION, 
 
 Principle of rejecting, when not tes- 
 tamentary (as to wills), 65. See 
 Wills, Statute of. 
 Trust of, how made at common law, 
 56. See Averment. 
 how under Statute of Frauds, 62. 
 See Frauds, Statute of, and see 
 Voluntary Assurance. 
 DECREE, 
 
 Judgment, decree has effect of, under 
 
 1 & 2 Vict, c. 110, s. 18, 667. 
 Sale for, persons to convey under, 
 are constructive trustees, 839, 
 note {I) ; see 834, note («), 836, 
 note {x), 837, notes [a) and [h), 
 882, note (/), 894, note [1], and 
 903, note (c). 
 Suit in, paralyses powers of trustees, 
 523, 524, 544. 
 DE DONIS, Statute of. 
 
 Estate pur autre vie, not within, 603, 
 
 note (1). 
 Trust, not within, 603. 
 DEED. See Infant, Lunatic. 
 
 Acceptance of trust, whether it should 
 
 be by, 238. 
 Chattel interest in land (other than 
 copyholds,) assignment of, unless 
 by deed void at law, 600, note [d). 
 
 Disclaimer should be by, 233. 
 Equitable interests usually assigned 
 
 by, 600. 
 Parties to, where good as between 
 though void as against others, 478. 
 Voluntary, does not preclude evi- 
 dence aliunde of valuable consid- 
 eration, as against persons not 
 parties, 477. 
 Will contrasted with, 66 ; and see 
 104, 230, 251,253, 410. 
 instance of deed in form testa- 
 mentary in character, 67, note 
 (5), 77, note [lo). 
 DEFENDANT. See Costs. 
 
 how c. q. t. and trustees ought to 
 be brought on the record as de- 
 fendants to suit, 855, et seq. 
 where legal process lost through 
 default of, equity aids, 755, note. 
 DEFECTIVE EXECUTION OF 
 POWERS, 
 upon what principle aided in equity, 
 96, 97. 
 DEFINITION, 
 of a trust, 15. 
 of a use, 2. 
 DELAY. See Ladies. 
 DELEGATION, 
 
 Appointment of attorney or proxy, 
 
 distinguished from, 297. 
 Conveyance of trust estate does not 
 
 transfer powers, 266, 267, 297. 
 Discretionai-y trust of, actually void, 
 296. 
 though to co-trustee or co-execu- 
 tor, 290, 291. 
 Executors by, distinguished at law 
 
 and in equity, 296. 
 Of office of trustee, not permitted, 
 290, 291. 
 unless by settlor's direction, 291. 
 or when trustee acts as agent, and 
 cannotlegallyretain money, 292. 
 or where moral necessity for it, 
 e. g. transmission of money, 
 293, et seq. 
 case of power to give receipts, 449. 
 Trustee for sale may not delegate 
 trust, but may employ agent, 422. 
 DELIVERY, of deed. See Infant 
 (Deed). 
 Of money voluntary, whether any 
 resulting trust upon, 178. 
 DEMERARA. See Jurisdiction. 
 Covenant to settle lands in, not bind- 
 ing against purchaser with notice, 
 51. 
 Mortgage of lands in, gives no lien 
 unless perfected according to law 
 of colony, 49.
 
 758 
 
 LE-n-IN ON THE LAW OF TRUSTS, ETC. 
 
 DEMURRER. See Statute of Frauds. 
 defendant may avail himself of Sta- 
 tute of Limitations by demurrer, 
 734; whether when bill charges 
 fraud, 735 ; not in case of presump- 
 tion, 738. 
 DENIAL, false by answer, &c. See 
 
 False. 
 DEPOSIT. See Mortgage (Equita- 
 ble), 
 on sale by auction, 427. 
 DESCENT. See Heir. 
 
 Broken by devise upon trust, case of, 
 
 G80. 
 Half blood may now inherit, 680. 
 Proceeds from sale of gavelkind 
 
 lands, 680. 
 Trusts of, c. XXII. s. 10, 680. 
 Trusts, descends as legal estate, 680. 
 though there be lex loci, ib. 
 so in copyholds, 45, 680. 
 possessio fratris of, 618, 680. 
 " DESIRE," 
 
 may raise a trust, 167. 
 DEVASTAVIT of executor, how it 
 affects co-executor, 304, 316. 
 Trustee, improperly releasing debt, 
 liable for, 521. 
 DEVISE. See Copyholds; Custom,' 
 arij Freeholds ; Frauds^ Stat, of; 
 Wills, Stat, of 
 Consideration, a devise implies, 58, 
 
 167. 
 General words, where legal estate in 
 trustee, passes under, 262, et 
 seq., see note (1). 
 not when charge of debts or direc- 
 tion to sell, 263. 
 complication of limitations, or 
 devise to A. for life, or in tail 
 with remainders, 264. 
 devise to woman for separate 
 use, 264. 
 passes where estate contracted to 
 be sold, 268 ; by devise of "my 
 real estates" "to A. and his 
 heirs for his and their own use, 
 &c.," 264; devise to two as te- 
 nants in common in fee, 264 ; 
 to woman for her own use, 264. 
 Implied by the word " trustee," 250. 
 Mortmain, devise upon secret trust 
 in, whether void at law, 78, 79, and 
 see 73. 
 " Securities for Money," mortgage in 
 
 fee passes under, 264. 
 Several to, good as to one, void as to 
 another, 73. 
 to alien and British subject, upon 
 trust, 39. 
 Trust, devise of, 615, et seq. 
 
 in copyholds, 615 ; in customary 
 freeholds, 616, 617 ; in freeholds, 
 615, 617. 
 Trustee, whether he ought to devise 
 trust estate, 265, 266; see General 
 Words, sup. 
 Void, is not, merely because devisee 
 means to execute unlawful trust, 
 73. 
 DEVISEE, 
 
 Debtor of, liable to specialty credi- 
 tor, 239 ; now to simple contract 
 debts, ib., note (c). 
 Devise on, without any reference to 
 trust, devisee takes benefi- 
 cially, 68. 
 even though testator leave un- 
 attested declaration of trust, 
 ib. 
 exceptions in case of charge of 
 debts, &c., 69 ; in case of 
 fraud, 70; in case of engage- 
 ment to execute unlawful 
 trust, 71 ; but see 72, 73. 
 Renewing lease, where devise sub- 
 ject to debts, &c., holds for benefit 
 ofall parties, 218. 
 Secret trust, devisee must discover, 
 
 70, 71, 73. 
 Trusts, whether devisee can execute 
 where ti-ust confided to trustee, 
 "his assigns," 266, 267. 
 Trustee, devisee of is bound by trust, 
 279. 
 DEVOLUTION. See Descent. 
 Equitable Estate of. See Trust. 
 Legal Estate of in trustee. See Le- 
 gal Estate. 
 DIRECT TRUSTS, 
 
 c. VII. s. 1, p. 140. See Express 
 trusts. 
 DIRECTION to employ A. as auditor, 
 whether it raises a trust, 101. 
 trustee required to do an act at di- 
 rection of c. q. t. 542. 
 DIRECTORY, 
 
 Clause in will for settlement of chat- 
 tels, 158, et seq. 
 Powers, 527. 
 DISABILITY, 
 
 Persons under, when barred by late 
 Limitation Act, 744 ; see 720, 755, 
 note. 
 Trustee of, statutes remedial of: see 
 Trustee Acts. 
 DISAGREE. See Co-Trustees. 
 DISCHARGE, 
 
 of trustee from ofiice, 290 ; c. xxi. 
 p. 565 ; s,QQ Relinquishment. 
 DISCLAIMER, 
 
 Costs of disclaiming trustee, 234, 874.
 
 INDEX. 
 
 759 
 
 DISCLAIMER, continued. 
 
 Counsel, trustee may take opinion of 
 
 as to disclaimer, 234. 
 Deed should be by, not by way of 
 conveyance, 233 ; but see note (Z), 
 and 449, 534. 
 Effect of, 237 ; as to parties, to suit, 
 847; as to personal contracts, 
 237 ; on powers, 237, 532, 534 ; 
 as to receipts, 449. 
 after, trustee may act as agent to 
 the trust, 235. 
 may purchase trust property, 
 462. 
 Equity in, by answer, or at bar, 234 ; 
 see Costs, sup. 
 by deed, 233. 
 
 by evidence of conduct, but this 
 is imprudent, 235. 
 Failure of trustee through disclaimer 
 
 relief of c. ([. t. against, G93. 
 Feme covert, by, 236. 
 Law at what disclaimer will divest 
 legal estate, 235, et seq. 
 as to chattels by parol, 236. 
 as to freeholds by deed, 236, of spe- 
 cial occupant, ib. 
 by parol (semble), 236 ; by mat- 
 " ter of record, 235. 
 under the stat. of uses, 236. 
 Protector of settlement by, under 
 
 Fines and Recoveries Act, 237. 
 Receiver, when appointed in conse- 
 quence of, 870, 871. 
 Who may disclaim, whether heir of 
 trustee, 232. 
 whether trustee who (1) accepts 
 one devise can disclaim another, 
 234 ; (2) disclaims trusts of will, 
 can accept bounty under same 
 will, ib. 
 trustee having accepted, cannot 
 renounce, 289 ; and see Accept- 
 ance. 
 DISCOVERY, 
 
 of secret trusts when enforced, 70, 
 72, 73 ; see Devisee, Heir. 
 DISCRETION. See Discretionary 
 trusts, Feme Covert, Infant. _ 
 of trustees, as to creditors' claims, 
 486 ; contingent remainders, 408 ; 
 conversion, 806, 808, 815; main- 
 tenance, 542, see 697 ; objects of 
 charity, 542; objects of trust, 701, 
 705 : renewal, 386. 
 DISCRETIONARY TRUSTS, 21, 22. 
 See Powers, Imperative. 
 couvt,how far it controls, 538 et seq. ; 
 
 and see 487, and Pow ers, 542. 
 delegation of void, 296 ; even to co- 
 trustee, 297 ; whether exercisable 
 
 by trustees appointed by court, 
 450, 712. 
 limited to trustees, their heirs and 
 
 assigns, 267. 
 for sale, purchaser cannot question 
 exercise of, 417. 
 DISSEISIN, 
 
 may be of a trust, 618, et seq. 
 outstanding term attended, inheri- 
 tance gained by, 288, note (1). 
 DISSEISOR not bound by a trust, 
 18, 287, 288 ; and see 747, or by a 
 use, 3. 
 DISSENTERS. See Chapel. 
 
 court will execute trust for, if not 
 
 contrary to law, 497. 
 how trusts of funds contributed by, 
 are expounded, ib. 
 DISTRESS, 
 
 effect of as to confirmation, 473: 
 laches, 471 ; release, 778 ; waiver, 
 737. 
 DISTRIBUTION, 
 
 Trust Fund, of, c. xiii. s. v. p. 365, 
 et seq. ; see Release, Trustee Re- 
 lief Acts. 
 under power of selection, 705, 706, 
 note (h). 
 DISTRINGAS, 
 c. XXIX. s. 3, p. 858. 
 Origin of, 859. 
 
 Restraining Order under 5 Vict. c. 
 5, s. 4, and practice as to, 860, 
 863. 
 applies to stock shares in the bank 
 
 or any other company, ib. 
 special grounds necessary to ob- 
 tain It, ib. 
 Writ of, under 5 Vict. c. 5, s. 5, and 
 practice as to, 860, et seq. 
 applicable only to stock transfera- 
 ble at the bank, 863. 
 effect of, and how and when dis- 
 charged, 862, 863. 
 employed sometimes for general 
 safeguard, 863. 
 DIVIDENDS, 
 
 where c. q. t. is tenant for life of, often 
 received bv power of attorney, 594. 
 DOMICILE, ' 
 
 Personal estate follows the person. 
 
 47. 
 Person domiciled abroad generally 
 not a fit trustee, 40 ; see 574, 576. 
 710. 
 DOUBTFUL EQUITY, 
 
 Purchaser, whether bound by notice 
 
 of, 727, 728. 
 Where it exists, trustee should de- 
 cline to act without sanction of 
 court, 368 ; will be allowed costs
 
 760 
 
 LEAVIN ON THE LAW OF TRUSTS, ETC. 
 
 DOUBTFUL EQUITY, continued. 
 of application, 368 ; c. q. t. plain- 
 tiff, who fails to establish claim, 
 allowed costs ; secus, in case of 
 contingent interest, ib. 
 DOWER, 
 
 Attached to legal estate in feoffee to 
 uses, 3. 
 to legal estate in trustee, 260. 
 but dowress bound in equity by 
 
 trust, 11, 18, 279. 
 formerly not to trusts or equity of re- 
 demption, 12, (j21, and why, 625. 
 whether to money to be laid out 
 
 on land, 793, 794. 
 not to a use, 4. 
 Dower Act, 626, 795 ; does not ap- 
 ply to copyholds, 621, 626. 
 Dowress may recover in equity on 
 
 legal title, 755, note. 
 Trustee, when he should join in con- 
 veyance, 596. 
 of equity of redemption, his costs 
 in foreclosure suit, 872. 
 DRUNKEN, 
 
 where executor and in great poverty, 
 receiver appointed, 870. 
 DUPLICATION, 
 of charges, 167. 
 DURATION, 
 
 of private trusts limited to a life or 
 lives in being twenty-one years 
 (otherwise of public trusts, 23), 
 see 103, 111. 
 trust exceeding this limit void in 
 toto, 111. 
 DURESS, 
 
 effect of, as to acquiescence, confir- 
 mation, or release, 778 ; see 473, 
 737. 
 DUTIES OF TRUSTEES. See Bill, 
 Co-trustees, Executors, Investment. 
 Acceptance of office, consequent on, 
 
 243, 244. 
 Advantage trustee must not derive 
 
 from trust, 318. 
 Answer: 1, as to joining in, 856 ; 2, 
 as to submitting disputed point to 
 court, 872. 
 Breach of trust on, by co-trustee, 
 
 317 ; see Cotrustee, 
 Care, trustee should take same, of 
 trust property as of his own, 332. 
 Charities for ; see Charities. 
 Chattels, personal of, c. xiii. p. 327. 
 Contingent remainders, for preserv- 
 ing, c. XV. p. 404 ; see Contingent 
 Remainders. 
 Control, trustee must not place trust 
 premises out of his own control, 
 334. 
 
 Convey, when trustee must convey 
 at direction of c. q. t., 595, 596 ; 
 see 600. 
 
 Custody of trust chattels, as to, c. 
 XIII. s. 2, p. 332. 
 
 Debts, for payment of, 483 ; see 
 Debts. 
 
 Delegation, trustee must not make 
 of trust, &c., 290 ; see Delega- 
 tion. 
 
 Dispute the trust, trustees must not, 
 325; see 878. 
 
 Distribution of trust fund, c. xiii. s. 
 5, p. 365. 
 
 Expenses, to keep account of, 559 ; 
 to control, see 558. 
 
 Impartial, should be, as between cs. 
 q. t., 414; conf. 340, 421, 574, 
 597. 
 
 Information, to furnish to, c. q. t., 
 427, 599 ; to court, as to trust, 375. 
 
 Insurance, as to, 332, 516 ; see 764. 
 
 Investment, as to, c. xiii. s. 3, p. 337 ; 
 see Investment. 
 in bank must be trust account, 
 332, 336. 
 
 Lend to co-trustee, trustee must not, 
 345 ; nor leave money in hands 
 of, see 309, 316, and Co;i/'?'o/, supra. 
 
 Mix, trustee must not, trust premi- 
 ses with his own, 337; or stranger's, 
 350. 
 
 Notice, trustee of equitable interest 
 should give, to holder of legal es- 
 tate, 326; see 605. 
 
 Outstanding property and choses in 
 action, to call in, 326, 328 ; see 
 765. 
 
 Renewal of leaseholds, c. xiv. p. 383 ; 
 see Reneioable Leaseholds. 
 
 Repairs, 513; see 827, (and conf. 
 524), and 830. 
 
 Sale for, c. xvi. p. 414 ; see Sale. 
 
 Speculate, trustee must not with 
 trust property, 319 ; see 362. 
 
 Suit by trustee, 317, 368; or trus- 
 tee concurring in, 756. 
 
 Trade, trustee must not employ trust 
 money in, 340, 361, et. seq. ; see 
 760. 
 
 Trustee may be compelled to per- 
 form duties, 718 ; see 597, 723. 
 
 EARMARK, 
 
 meaning of term as applied to 
 monev, &c., 275, 757, 758. 
 EAST INDIA COMPANY, 
 
 securities of, 355 ; see 835, note [q). 
 EAST INDIES, 
 
 whether executors in, may charge 
 commission, 547; and see note [n).
 
 INDEX. 
 
 761 
 
 EAST INDIES, continued. 
 
 lands in, within Trustee Acts, 835, 
 note {s) ; see 901. 
 ECCLESIASTICAL COURTS, 
 
 have no jurisdiction of trusts, 19, 2G1. 
 EDUCATION. See Poor. 
 EJECTMENT. See Actions. 
 
 cannot be brought by c. q. t., unless 
 
 surrender presumed, 591. 
 may by trustee even against c. q. t., 
 591. 
 ELECTION, by c. q. i., as to land to 
 be converted into money, and vice 
 versa. 
 By whom made. 
 
 Feme covert cannot elect, 816. 
 but as to money to be laid out 
 in land, bound by consent in 
 court of equity, 817. 
 under Fines and Recoveries Act 
 can dispose of estate, or in- 
 terest in land, or money to be 
 laid out in land, 817. 
 even contingent interests by 8 
 & 9 Vict. c. 106, s. 5, 817, 
 note (n). 
 reversionary interest in money 
 to arise from sale of land, 818. 
 or semble in legacy raiseable 
 out of land, ib., and note [I). 
 when tenant in tail, see inf. 
 Infant, cannot elect, 816. 
 Lunatic, cannot elect, ib. 
 Remainderman in fee, may elect, 
 so as to bind real and per- 
 sonal representatives, inter 
 se, 818. 
 but subject to right of prior 
 owner to call for conversion, 
 818. 
 actual conversion by prior owner 
 would defeat intended elec- 
 tion, semble, 819. 
 Tenant in common, &c., 
 
 cannot singly elect against sale 
 of his share of land to be 
 sold, 819. 
 may singly elect to take as 
 money his share of money to 
 be laid out, 819. 
 Tenant in tail might elect by suit 
 as to money to be laid out in 
 land: — 1. Where remainder 
 limited to himself, 819; 2. 
 "With consent of remainder- 
 man, 820. 
 or even without suit, 820, 821 ; 
 and semble, even since Fines 
 and Recoveries Act, 822 ; but 
 see 823. 
 by petition, under 39 & 40 Geo. 
 May, 1858.— 49 
 
 3, c. 56, 821 ; and notes {/) 
 and (I). 
 under Fines and Recoveries Act 
 may dispose of land, or money 
 to be invested in land, 822. 
 Trustee, his act shall not alter c. 
 q. t.'s estate, 825, et seq. 
 How made, by express declaration, 
 823 ; as to a will, see 825. 
 
 even by parol, as between real 
 and personal representatives, 
 824. 
 excepted out of Lord St. Leo- 
 nards' Trustee Act, 839. 
 Presumed, 823 ; (whether know- 
 ledge of c. q.t. necessary), 824. 
 [a) where land to be converted ; 
 e. g. by c. q. t,, granting lease, 
 reserving rent to himself and 
 his heirs, 824 ; keeping land 
 unsold, 823 ; entering into pos- 
 session, and taking custody of 
 title deeds, ib. 
 (6) where money to be converted ; 
 e. g. by c. q. t. changing secu- 
 rities, «&c., 824; receiving the 
 money, 823 ; see 804 ; not by 
 mere receipt of income, 823 ; 
 from c. q. t.'s will (formerly even 
 unattested), 825. 
 Until made, special trust proceeds, 
 598. 
 of clerk by parishioners, 107-110 ; 
 
 see Parishioners, 
 of member of parliament, c. q. t. 
 may vote for, 270, 593. 
 ELEGIT. See Judgment. 
 
 Equitable interest, it binds, 649 : 
 formerly held otherwise, 12. 
 what portion of trust estate might 
 formerly be taken in execution 
 under, 658 et seq. ; and see 659, 
 note [y). 
 
 of equity of redemption, 660. 
 of trust in nature of mortgage, 
 
 661. 
 entirety under 1 & 2 Vict. c. 
 110, s. 11,666. 
 when elegit must be sued out be- 
 fore application to equity, 662 ; 
 and see note (t). 
 Estate by, in trust for feme covert, 
 
 630. 
 Origin of, 647. 
 
 Remedy of at law by possession, 658, 
 note (w), and see 659, note [y). 
 as to trust estate under Statute of 
 Frauds, 664, et seq. 
 under 1 & 2 Vict. c. 110, 669. 
 tenant by, not bound by a use, 3 ; 
 is by a trust, 280.
 
 762 
 
 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 ENTAILS, 
 
 Equitable, barred how, 602, 604. 
 customary estates in, depend on 
 custom to entail legal estate, 46, 
 and see note (e). 
 history of, 601, et seq. 
 ' ENTREATING," 
 
 may raise a trust, 167. 
 EQUITABLE ESTATES. ^Q^Mergcr. 
 assignment of how made, 603 ; 
 
 precautions in, 604 et seq. 
 compared with legal, 44, 103, et 
 
 seq. 140, 141. 
 purchasers of when bound by 
 
 trusts, 729 ; see 725. 
 a series of, 596 ; see 848. 
 Mortgage. See Mortgage, Equitable. 
 Powers, 
 
 distinguished from legal, 525. 
 collateral or annexed to estate, 
 526. 
 T^aste, 225 ; and see 514. 
 EQUITY. Bars to claims in, 731 ; see 
 Limitation, Mesne Rents. 
 Courts alone have jurisdiction of 
 Trusts, 19. 
 can act in personam, 47 ; and see 
 Jurisdiction. 
 Doubtful, 367, whether purchaser 
 
 bound by, 596, 848. 
 Redemption of; see Mortgage, Mort- 
 gagee; Mortgagor. 
 barred by lapse of time when, 733. 
 chattel, of a, may be taken under 
 
 equitable fi. fa. 649. 
 copyholds of where formerly liable 
 
 as assets, 661, note (1). 
 distinguished from a trust, 284. 
 forfeitable for treason, 677. 
 judgment creditor entitled to sale 
 
 of entirety, 660. 
 subject to curtesy, formerly not to 
 dower, 12, 621, and see 626. 
 Settlement to, see Feme Covert. 
 Trustees of mere equity, 596, 848. 
 ESCHEAT. See Failure of c. q. t. 
 Copyholds not properly subject to 
 escheat, 283. 
 lord bound by trust entered on the 
 
 roll, ib. 
 qu. if in case of customary free- 
 holds, 284. 
 Equitable interest not subject to, c. 
 
 XXIII. s. 9, p. 678, see 14. 
 Law of, now altered by late statute, 
 
 285, et seq. 
 
 Lord may redeem mortgage term 
 
 created by person whose estate 
 
 has been escheated, 285 ; subject 
 
 to debts of such person, ib. 
 
 does not take raortcrao-e in fee 
 
 on mortgagor's death intestate 
 without heirs, 679. 
 whether formerly bound by a trust, 
 14, 18,280, et seq. ; not by use, 3. 
 Money to be be laid out on land not 
 subject to, 795. 
 ESTATE, 
 
 Pur autre vie, see Pur Autre Vie. 
 Trustee, what he takes at law, c. 
 XI. p. 246, and see Legal Estate. 
 ESTOPPEL. 305. 
 EVIDENCE. See Affidavit ; Frauds, 
 
 Stat, of; Parol; Trustee Acts. 
 EXCHANGE. See 894, Charity lands 
 of, with eonsent of commission. 
 504. 
 Power of sale and exchange a " usual 
 power," 164 ; see 166. 
 whether it authorizes partition,417. 
 EXCHEQUER, 
 
 Court of, whether it could relieve c. 
 q. t. as against royal trustee, 30. 
 transfer of equity jurisdiction to 
 court of chancery, 859. 
 EXCHEQUER BILLS, 
 
 whether government security, 342, 
 note (/). 
 EXECUTED TRUSTS, 
 what, 144, et seq. 
 
 how construed, 141. See Executory 
 trusts. 
 EXECUTION, 
 
 Chattels of by fi. fa. 646. See Jiidg- 
 ment. 
 from what time chattel interests in 
 
 lands are bound by, 647. 
 of trust chattels. 648, 662 ; of 
 stock, 648, 669, et seq. 
 for debt of trustee, 261, 
 Creditor, taking trust chattel in, 
 bound by trust, 283 ; whether he 
 can by execution levy debt upon 
 property subject to voluntary trust 
 for debts, 476. 
 Defective of powers of, upon what 
 principle aided in equity, 96. 
 EXECUTOR. See Foreign, Lifant, 
 Relinquishment (Representative) . 
 Acceptance of office, what acts con- 
 stitute, 241, 242 ; and see Accept- 
 ance. 
 having once acted cannot re- 
 nounce, 289. 
 notwithstanding he has not proved, 
 
 290 ; see 838, note [d). 
 may renounce probate and claim 
 
 legacy, 234. 
 executor of executor administer- 
 ing to one testator must to the 
 other, 234. 
 Assent of, to bequest, 243, 454.
 
 INDEX. 
 
 •63 
 
 EXECUTOR, continued. 
 
 Assets personal in hands of execu- 
 tor, a species of trust property at 
 common law, 261. 
 e.g. cannot be taken in execution 
 for executor's debt not forfeit- 
 able for felony, &c., 262. 
 vest in executor's executor, 260. 
 not in executor's administrator, 
 262 ; and see Feme Covert, 
 (executrix). 
 Agent acting under executor's direc- 
 tion, 459. 
 Co-executor. See Co-trustee, Powers, 
 inf. 
 compared with co-administrator, 
 316. 
 with co-trustee, 310 ; see 317. 
 duties, he must uot depend on 
 mere representation of co-exe- 
 cutor, 315. 
 especially where testator long 
 
 dead, ib. 
 should call in debt owing from 
 co-executor to testator's es- 
 tate, 329. 
 should notleave money in hands 
 of co-executor, 316 ; see 314. 
 whether executors may place 
 money in bank payable to 
 either co-executor, 336. 
 liability depends on acting, not 
 mere joining in act, 312. 
 answerable for putting assets 
 into sole hands of co-execu- 
 tor, 314. 
 how far for devastavit of co-exe- 
 cutor, 289, 304, 316. 
 not generally answerable for 
 acts or defaults of co-execu- 
 tor, 310. 
 whether for joining in receipts 
 
 pro forma, 310, et seq. 
 not for joining in nugatory acts, 
 311 ; or in acts ex necessitate, 
 315 ; e. g. indorsing bill of 
 exchange payable to two per- 
 sonally, or transfer of stock, 
 ib. ; unless act be with im- 
 proper view, ib. ; see as to 
 liability at law, 296. 
 survivorship of office, 300 ; of 
 powers, 536. 
 Charge, he may not, for time or 
 trouble, 546. 
 where entitled to commission for 
 administration in East Indies, 
 547, note (n). 
 Costs allowed to executors in credi- 
 tor's suit, 873. 
 executors, who are necessary par- 
 
 ties in suit by stranger, unsuc- 
 cessfully contesting his claim, 
 pay, 872 ; and see Costs. 
 Covenants, what may be required 
 from executors of one who ha.s 
 agreed to take a lease, 425, note 
 (A-). 
 
 by executors of lessee on assign- 
 ment, 426. 
 Decree after, he may not pay debts or 
 
 invest assets without sanction of 
 
 court, 524. 
 Devastavit. See Co-executor, sup., 
 
 Liabilities, inf 
 Duties of. See Liabilities, inf. 
 he should not allow assets to remain 
 on personal security, 329. 
 
 but not liable if legal proceedings 
 would be useless, ib. 
 
 may allow assets to remain on 
 mortgage, 329. 
 
 should uot allow outstanding debts 
 which carry interest, 358. 
 
 after payment of debts, &c., must 
 account for surplus, or charge- 
 able with interest, 358. 
 
 and no excuse that he did not use 
 the money, 359. 
 
 but not so charged during first 
 year from testator's death, 364. 
 
 must not trade with assets, 360, 
 361 ; and see 340, 364. 
 Indemnity, what he may require as 
 
 to leaseholds, 426, and see Indem- 
 nity, 
 Liabilities. See Co-executor, Duties, 
 sup. 
 
 whether answerable to creditors 
 when not to legatees, 313, 314. 
 
 for devastavit, 296 ; conf. 521. See 
 Co-executor, sup. 
 
 whether for paying debts barred 
 by statute, 520. 
 
 whether for omission to insure, or 
 for robbery, 332. See Insurance. 
 Lunatic, &c., see Trustee Act, s. 6. 
 Mortgage. See Powers, inf. 
 Next of kin, executors are trustees 
 for, of undisposed residue, 59. 
 
 where no next of kin executors 
 take beneficially as against the 
 crown, 59, 324. 
 Powers of, to deposit mortgage, or 
 sell personal estate and to give 
 receipts, 453, et seq. ; see 457. 
 
 even without concurrence of co-ex- 
 ecutor, 453 ; or when specifically 
 bequeathed, 454 ; but see 458. 
 
 except where fraud, &c., 455, et seq. 
 e. g. sale at nominal price or 
 undervalue, 456
 
 764 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 EXECUTOR, continued. 
 
 sale or pledge to secure execu- 
 tor's private debt, 456. 
 even where executor joint spe- 
 cific or joint residuary lega- 
 tee, or subject to a charge, 
 457. 
 secus, where he is sole specific 
 or sole residuary legatee, 
 456. 
 case where executor's creditor 
 has express notice of unpaid 
 debts of testator, 457. 
 sale, &c., for executor's private 
 
 advantage, 457. 
 sale, &c., of chattels specifically 
 bequeathed where purchaser 
 has notice thattestator's debts 
 have been discharged, 458. 
 sale, &c., where misapplication 
 probable, 458. 
 how far safe to deal with executor 
 after long interval from testa- 
 tor's death, 458. 
 who may impeach fraudulent sale, 
 &c., by executor, 459; and see 
 Decree, sup. 
 Purchase, executor may not purchase 
 
 assets, 465. 
 Receipts. See Co-executor, Powers, 
 
 sup. 
 Receiver appointed where husband 
 ofexecutrixoutofjurisdiction,870. 
 Renewal, of lease by, 219, 220. 
 Survivorship. See Co-executor, sup. 
 Trading with assets, 360, 36 1 ; see 340. 
 Trust, whether it can be averred 
 
 against executor, 59. 
 Trustee, executor of bound by trust 
 of chattels, 279. 
 specifically bequeathing trust pro- 
 perty, qu. whether executor with 
 specific legatee can execute 
 trust, 267, conf. 297, 
 when executor converts himself 
 into a trustee, 243. 
 EXECUTORY BEQUESTS, see 104. 
 EXECUTORY TRUSTS, see 144, 
 158, 727. 
 Construction of, in Marriage Ar- 
 ticles, see 146, 152, note (c). 
 Chattels, " heirs of body" applied to, 
 construed limitation to eldest 
 son as heir, and if no son, to 
 daughters, as co-heiresses, 149. 
 notwithstanding death of son or 
 daughter in parent's lifetime, 
 unless contrary implication, ib. 
 agreement to settle on same trusts 
 as real estate, what limitations 
 it authorizes, 150-152. 
 
 Joint tenancy in articles construed 
 
 tenancy in common, 152. 
 Real estate " heirs of body," or " is- 
 sue," applied to, construed first 
 and other sons in tail as 
 purchasers, 147, remainder to 
 daughters, as tenants in com- 
 mon in tail with cross i-emain- 
 ders, 149, (except where express 
 provision for daughters by ar- 
 ticles,) ib. 
 exceptions — where husband's pro- 
 perty limited to heirs of body of 
 wife', 148; qu^re, however, since 
 Fines and Recoveries Act, ss. 
 16, 17. 
 where articles, by limitation of part 
 of estate, to parent for life, re- 
 mainder to first and other sons 
 in tail or otherwise negative this 
 construction, 148. 
 *' heirs female" construed daugh- 
 ters, 149. 
 Words supplied in, articles, 153. 
 Construction of, in Postnuptial Set- 
 tlements, 164. 
 Construction of, in Wills, 153, et seq. 
 Chattels, how executory trusts as to, 
 construed, 158, 163. 
 semble, that chattels bequeathed 
 as heir-looms, with real estate, 
 vest absolutely in first tenant in 
 tail, though he die an infant, 163. 
 but a limitation over on tenant in 
 tail dying under 21, is lawful, 
 and may probably be inserted 
 where testator manifests distinct 
 intention, 163. 
 Real estate (a) heirs of the body, 
 construed to give estate tail to A., 
 e. g. in trust " for A. and the heirs 
 of his body," 153. 
 " for A. and the heirs of his body 
 
 and their heirs," 153. 
 " for A. for life and after his 
 decease to the heirs of his 
 body," 153. 
 estate " directed to be settled" 
 upon A. and her children, and 
 if she died without issue, 153. 
 upon A. for life, remainder to 
 his heirs male and the heirs 
 male of every such heir male, 
 &c., 154. 
 executory trust for A., and trus- 
 tees not to give up their estate 
 till proper entail was made to 
 the heir male by him, 154. 
 devise to A., with direction that 
 estate should be entailed on heir 
 male, how construed, 154. 

 
 INDEX. 
 
 765 
 
 EXECUTORY TRUSTS, continued, 
 (b) heirs of the body construed 
 first and other sons, &e., where 
 intention shown, 154. 
 as by directinpf settlement to A., 
 for life, " without impeach- 
 ment of waste," or with "limi- 
 tation" to preserve "contin- 
 gent remainders," 154, 155. 
 on feme covert for life for sepa- 
 rate use, 155. 
 or by direction to settle on A. and 
 the heirs of his body as counsel 
 shall advise, &c., 155. 
 where testator directs settlement, 
 but formally declares limita- 
 tions, 157. 
 Generally, daughters included in 
 " heirs of body," or " issue," 149, 
 156. 
 Duplication of charges, 167. 
 Gavelkind lands, as to, 157. 
 " Heirs of the body," and " issue" 
 
 distinguished, 155. 
 Limitation to trustees to preserve 
 whether now inserted, 156, see 
 408, 418. 
 Notice of, 727. 
 
 Powers, what may be inserted, 164, 
 
 et seq. ; " usual," ib. ; proper, 166. 
 
 Protector, special, whether court will 
 
 insert under Fines and Recoveries 
 
 Act, 156. 
 
 Rectification of settlement, 148, note 
 
 {g) ; and see Settlement. 
 
 EXONERATION. See Contract, 
 
 Mortgagor. 
 EXPECTANCY, 
 
 voluntary assignment of, whether it 
 creates a trust, 92; see Voluntary 
 Assurance. 
 EXPENSES. C. XX. s. 2, p. 557. 
 See Costs, extraordinary outlay. 
 Allowance for, to trustees, 557, even 
 where express allowance for 
 trouble, 558. 
 extra costs, 558, fees to counsel, 
 ib., of fines, 272, of renewal, 
 222, of release, 375, travelling 
 expenses, 557 ; and see Keio 
 trustees. 
 Account of, trustee should keep, 559. 
 where none kept, what allowance 
 made, ib. 
 Lien, are upon the trust estate, 560, 
 561; and see 222. 
 how far where trust extends to 
 
 two estates, 562. 
 secus in respect of trustees' agents, 
 e. g. solicitors, or surveyors, 101, 
 561. 
 
 Moderated charges may be, and how, 
 
 558. 
 Reimbursement of, how made, 521, 
 
 558, 564, conf. 873. 
 Remedy for, against c. q. t., person- 
 ally, where, 562 et seq. ; see 563, 
 note (x). 
 Trust to pay costs, &c., construction 
 of, 564. 
 EXPRESS, 
 
 Trusts, c. VII. s. 1, p. 140. 
 Technical terms, how far necessary 
 for, 140, 141, their force when em- 
 ployed, 141. 
 Trusts, executed and executory dis- 
 tinguished, 144. 
 what are within late Limitation 
 Act, 743, 745, note {d), et seq. 
 a mere charge is not, secus as to 
 a charge coupled with duty, 746. 
 not within 42nd section of act as 
 to arrears, 748. 
 EXTENT, 
 
 From crown, c. xxiii. s. 7, p. 673. 
 trust affected by, 673. 
 could not be sold at common law, 
 
 673, may by stat., ib. 
 equity of redemption may be sold 
 upon, 674. 
 EXTRAORDINARY OUTLAY, 
 by trustee, whether he can charge, 
 559. 
 
 FACTOR, 225. See Age^it. 
 
 Bankruptcy Act, operation of as to 
 goods, &c., in his possession, 274, 
 275. 
 only takes special property, 275. 
 FAILURE, 
 
 Of c. q. t. of personalty by death 
 intestate without next of kin, 
 198, 324. 
 of realty by attainder, 323. 
 
 by death intestate, and without 
 
 heirs, 197, 321. 
 whether settlor can assert a 
 
 claim, 323. 
 whether trustee can claim ad- 
 vantage, 321 et seq. 
 where c. q. t. has devised estate 
 to another on trusts which 
 fail, devisee entitled as against 
 bare trustee, 322. 
 Of trustee, 
 relief of c. q. t. against, c. xxiv. 
 
 p. 693. 
 by death of trustee in testator's 
 lifetime, disclaimer or otherwise. 
 693. 
 direction to sell, and no person to 
 sell named, 694.
 
 -66 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 
 FAILURE, continued. 
 
 for separate use, and no trustee 
 appointed, 694. 
 of imperative power, 694 et seq. 
 See 543 ; Poicers. 
 FALSE, 
 
 Answer by corporation (pleading 
 ignorance,) visited with costs, 878. 
 Denial, by agent, of his character, 
 205. 
 by trustee of claims of c. q. t. 
 visited with costs, 877. 
 FAMILY, 
 
 Differences, settlement of a good 
 
 consideration, 94. 
 Trust for, of freeholds, how con- 
 strued, 169. 
 FARM LEASES. See iease*. 
 FATHER. See Advancement, Parent. 
 FEE, 
 
 Equitable, the word " heirs" not ne- 
 cessary to create, 141. 
 Fee upon a fee, distinction between 
 legal and trust estates as to, 103. 
 Legal, vested i» trustee by trust to 
 sell, &c., without " heirs," 250. 
 so by devise to A. and his heirs 
 
 upon trust to pay debts, 251. 
 secus where gift to A. and his exe- 
 cutors, «&c., upon trust to pay 
 debts, &c., ib. 
 what estate taken under grant to 
 trustees and survivor, and heirs 
 of survivor, 251 ; what under 
 devise, 252. 
 FELONY, 28. See Forfeiture. 
 of c. q. t., 323. 
 
 works forfeiture of equitable chat- 
 tels, 677. 
 FEME COVERT, 
 Generally. See Fine, Fines and Be- 
 
 coveries Act, Husband. 
 Acquiescence, not bound by, in pur- 
 chase by trustee, 471, generally, 
 777. 
 except as to separate property 
 
 without restraint, 471, 777. 
 quasre, where restraint, 778. 
 Advancement for, by husband, pre- 
 sumed, 216. 
 Breach oftrust, cannot concurin, 774. 
 unless guilty of fraud, 774. 
 or as to separate property with- 
 out restraint, 775 ; see 778. 
 remedy for, against separate es- 
 tate, 639, et seq. 
 by, husband liable for, 34; and 
 see 261. 
 Choses in action, her disability as to 
 (possessory or revisionary,) 26. 
 reduction into possession of, pos- 
 
 sessory, 627, 631 ; whether 
 when reversionary, 370 et seq., 
 627, 628. 
 her right by survivorship to, whe- 
 ther possessory (but not re- 
 duced,) or reversionary, 627, 
 628. 
 Confirmation by. See Disabilities, 
 
 infra. 
 Curtesy, in respect of. See Curtesy. . 
 Disabilities of, 
 
 cannot conform or release breach 
 of trust, 777, as to purchase 
 by trustee, 472. 
 except as to separate property 
 if without restraint, ib. 
 cannot consent to trustees' relin- 
 quishment of office, 565 ; and 
 see Breach of trust, sup. 
 cannot at common law pass legal 
 estate, 35. 
 Disclaim, how she may interest in 
 
 land, 236. 
 Discretion of, 34. 
 Dower, her title to. See Dower. 
 Election by, cannot make, 816. 
 secus under Fines and Recoveries 
 Act, 817 ; and see Election. 
 Engagements and contracts by, 
 parol, how far they affect sepa- 
 rate property, 634 et seq. ; but 
 see 639, and 778. 
 written, id. 633. 
 
 as to real estate under Fines and 
 Recoveries Act, 634, note (n) ; 
 and see Power, inf. 
 Equity to settlement, as against as- 
 signees in bankruptcy or insol- 
 vency of husband, 369, 370; as 
 against husband's assignee for 
 value, 370 ; none against as- 
 signee for value of life estate, 
 ib. 
 in equitable chattels real, 26, 629, 
 630, in equitable freeholds, 632. 
 how asserted or waived, 628. 
 right by survivorship distinguish- 
 ed from, 628. 
 Executrix, assets in hands of, dis- 
 posable by husband during co- 
 verture, 261. 
 she may make a will of such as- 
 sets without husband's consent, 
 261. 
 Feoffment on condition she may 
 
 make, 34. 
 Fraud. See Breach oftrust, supra ; 
 
 Potrer, infra. 
 Power, she may execute power 
 simply collateral, appendant, or 
 in gross, 34.
 
 INDEX. 
 
 767 
 
 FEME COVERT, continued. 
 
 general, when equivalent to sepa- 
 rate estate, 775. 
 estate appointed under, not assets, 
 except where fraud, 768, note 
 [w). 
 Practice. See Equity to Settlement, 
 
 sup. ; Separate Use, inf. 
 Property of. See Separate Use, inf. 
 (a) Equitable not settled to her 
 separate use, her chattels per- 
 sonal, 627 ; chattels real, and 
 contingent interest therein, 629 ; 
 (effect of husband's forfeiture 
 upon, 677 ;) choses in action, 
 see sup. ; elegit, estate by, 630 ; 
 freeholds, 631 ; mortgage term, 
 631. 
 as to effect of getting in legal es- 
 tate in wife's equitable term, 
 630. 
 (6) Legal, 
 chattels real, husband may as- 
 sign, 629 ; secus if they cannot 
 vest during coverture, 630 ; see 
 26 ; freeholds, 35 ; see 25, 632; 
 634, note(?i), Sn, 818. 
 Restraint against anticipation, sepa- 
 rate estate. See inf. 
 Reversionary interests. See Choses 
 in Action, sup. 
 in land, or money arising from, or 
 charged on, 818. 
 Survivorship, her right by, 627, 628. 
 Trust, how far she can create, 25. 
 Trustee, she ought not to be appoint- 
 ed, and why, 34, 35 ; see 710. 
 Will. See Executrix, sup. ; Sepa- 
 rate Use, inf. 
 liestraint against Anticipation, 123, 
 what words will effect, 123 ; and 
 see 129, 130, 632 note {w). 
 Arrears of income, does not attach 
 
 to, 642 ; see 26. 
 Discharged, the clause may be, 
 
 during discoverture, 124. 
 Marriage upon, the clause operates 
 during the coverture, 128; see 
 124, et seq. Power of Appoint- 
 ment, inf. 
 second, effect of, 130 ; see 631. 
 Power of Appointment, how far it 
 
 discharges restraint, 129, 130. 
 Separate Use. See Devise. 
 Allowed in trusts, 120, though no 
 trustee interposed, 121, 728. 
 husband, construed trustee, ib. ; 
 and see 125 note (x), 694 ; but 
 see 123. 
 Arrears of, 642 ; and see 26, 131. 
 received by husband, what reco- 
 
 verable by wife or her represen- 
 tatives, 642. 
 where wife is non compos, 644. 
 whether distinuisbable from ar- 
 rears of pin money, ib. 
 Assets equitable, is administered as. 
 
 642. 
 Created, by what words, 121, 122. 
 what words insufficient, 121, 122. 
 trust must be clearly expressed, 
 121. 
 Discharged, may be, during disco- 
 verture, 124 ; and see 640. 
 Engagements. See Engagements, 
 
 sup. 
 Feme covert is considered feme sole 
 as to separate property, 26, 632 : 
 and see Acquiescence, Breach oj 
 trust, Disabilities, sup. 
 Judgment, trust for separate use 
 whether within 1 & 2 Vict. c. 110, 
 s. 11 ; 666, note (a). 
 Legal estate, what trustees take 
 where limitations for, 247, 252. 
 255. 
 Liabilities of ferae covert in respect 
 of. See Breach of trust, Engage- 
 ments, sup. 
 enforced by bill against feme 
 covert and her trustees, not a- 
 gainst her personally, 640. 
 notwithstanding husband's death. 
 
 640. 
 only against arrears where re- 
 straint, &c., 641, 642. 
 after death of wife by creditors' 
 suit, 642. See Assets, sup. 
 Marriage upon, the clause operates. 
 124. 
 effect of second, 130, 631 ; as to 
 arreai's, 131. 
 Possession, when c. q. t. entitled 
 for separate use is put into, 590 ; 
 see 589. 
 Power of appointment when equiva- 
 lent to ownership for separate use, 
 775. 
 Practice as to, in proceedings in 
 equity, 633, 640. 
 wife sues for by next friend, 858 ; 
 see 348. 
 Real estate, her acknowledgment in 
 conveyance of separate use un- 
 necessary, 646. 
 Savings of. See Arrears, sup. ; Will, 
 
 inf. 
 Will, by feme covert, may dispose 
 of separate estate and accumu- 
 lations, 642. 
 undisposed of survives to hus- 
 band, ib.
 
 768 
 
 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 FEME SOLE, 
 
 ought not to be trustee, and -why, 
 
 35. 
 trustee marrying may be removed, 
 710. 
 FEOFFMENT. Forfeiture, by, 678. 
 Infant, by, not void, but voidable, 26. 
 Lunatic, by, or idiot voidable only 
 by heir, 27. 
 FIERI FACIAS, writ of. See Execu- 
 
 tion; Judgment. 
 FINE, 
 
 Effect of, in cases of election, 817. 
 upon equitable entails, 601, 602. 
 Infant feme covert, formerly con- 
 veyed by, under Trustee Act, 835, 
 note {?<)• 
 Infant, idiot, or lunatic, of, 26, 27. 
 
 See Recovery. 
 Nonclaim with, a bar against infant, 
 c. q. t. of term, 721. 
 secus in case of fraud, ib. 
 a bar against constructive trust in 
 favour of a volunteer without 
 notice, 733. 
 no bar in case of notice, 224. 
 FINES, 
 
 Admission to copyholds, for, 272, 
 
 402. See Copyholds. 
 Lease of charity lands, upon, 505, 
 
 506 ; see 510. 
 Renewals on, 386, et seq. See Re- 
 
 netvable Leaseholds. 
 Under-leases of, 392. 
 FINES AND RECOVERIES' ACT. 
 See Protector. 
 Acknowledgment by feme covert, 
 under, 25, 632, 634, note {n). 
 its effect as to her reversionary 
 interest in land, 817, 818, to be 
 converted, ib. ; legacy charged 
 on, ib. ; see note (ji). 
 whether necessary for dealing 
 with wife's separate property, 
 646. 
 Effect of, in election by tenant in 
 tail, 822. 
 as to limitation to preserve con- 
 tingent remainders, 411. 
 under settlement of husband's 
 property to heirs of body of 
 wife, 148. 
 Infant tenant in tail, conveyance by, 
 in pursuance of Trustee Act, 835, 
 note (/). 
 Vesting order, under Trustee Act, 
 1850, 885, note [1). 
 FOLLOW. Where c. q. t. may, trust 
 estate itself, if wrongfully convert- 
 ed, c. xxvi. s. 1, 724. See Breach 
 of trusty (Remedy, 1). 
 
 where property substituted in place 
 of trust estate, c. sxvi. s. 2, 753. 
 where conversion in pursuance 
 of trust, 754. 
 tortious, 755, et seq. See 
 825, Breach of trust (Reme- 
 dy, 2). 
 FORECLOSURE, ^qq Abroad; Mort- 
 gagee. 
 FOREIGN. See Abroad; Frauds, 
 Stat, of; Jurisdiction. 
 Funds, 812. 
 
 Law, whether trustee or executor 
 presumed to know, 367. 
 FORFEITURE. See Felon; Out- 
 law ; Treason. 
 Case of felony, outlawry, or trea- 
 son, 29. 
 as to chattels and goods, takes 
 
 place on conviction, ib. 
 felon, &c., may sell goods, &c., 
 before conviction, ib. 
 how far he may make a settle- 
 ment of, 28, 29. 
 Equitable interests of, none at com- 
 mon law, in trusts of lands, 
 674. 
 qu. under 33 H. VIII. c. 20, s. 2, 
 
 674, et seq. 
 equities of redemption within the 
 
 statute, 677. 
 trust for alien, 677, how crown 
 prosecutes its rights, ib. 
 ofchattels,realor personal, 677. 
 for felon's wife, ib. 
 Legal estate in trustee, of, 
 
 chattels in trustee, subject to, at 
 common law, 260. 
 secus now, 260, 286 (but see 
 287), and secus as to assets 
 in hand of executor, 262. 
 freehold estate in trustee, subject 
 to, at common law, 260. 
 secus now, 260, 285, 286, (but 
 see 287). 
 Person taking trust estate under, 
 formerly bound by same equity as 
 forfeitor, 280. 
 Tenant for life by, at law from feoff- 
 ment, &c., 678. 
 not bv equitable tenant for life, ib. 
 FORGERY, 
 
 Letter of attorney, of, 372. 
 Trustee absconding on charge of, 
 removeable, 711. 
 FORMALITIES, 
 
 required for creation of trust, c. v. 
 
 p. 56. 
 and see Averment; Frauds, Stat, of; 
 Wills, Stat, of; Iransmutation 
 of Possession.
 
 INDEX. 
 
 769 
 
 FOUNDER, I 
 
 Charity, of, when visitatorial power 
 belongs to heirs of, 492. 
 when heir of, unknown or lunatic, 
 visitatorial power in crown, 
 495. 
 FRAUD. See False; Fine ; Suit. 
 Bar, none from time whilst fraud 
 concealed, 734, note (6). 
 and see Stat, of Limitation, s. 26, 
 
 743. 
 account carried back to accruer 
 
 of title, 756, note, 
 secus, after discovery, 734. 
 By agent, 204 ; devisee or heir, 70. 
 feme covert, 774; grantor, 178; 
 infant, 39, 774. 
 Charged by bill, defence, whether 
 
 by demurrer or plea, 735. 
 Ground for, account of mesne rents 
 in equity, though upon a legal 
 title, 754, note, 
 court's interference in exercise of 
 
 powers, 543. 
 court's non interference, 137, 139, 
 768; conf. 178. 
 Laches, effect of, where plaintiff 
 
 alleges fraud, 742. 
 Parol, may be established by, 74 ; 
 
 and see 205. 
 Vitiates trust for payment of debts, 
 476. 
 FRAUDS, STATUTE OF. C. v. s. 
 2, p. 60 ; and see Devisee, Heir. 
 Assignment of trusts, must be by 
 
 writing signed, &c., 600. 
 Constructive trusts, how far it affects, 
 228, et seq. ; see 206, 762. 
 distinction in case of will and 
 conveyance, 230. 
 Devises of lands, and bequest of 
 personal estate, how made accord- 
 ing to statute, 65. 
 Interests within the act, 
 
 charitable uses, 61 ; chattels, real, 
 
 61 ; copyholds, 60. 
 Not chattels personal, 61; lands 
 in colonies planted before sta- 
 tute passed, 62 ; nor foreign 
 lands, 62 ; nor trusts arising by 
 implication or operation of law, 
 204, 228. 
 whether it binds the crown, 62. 
 Pleading the statute, as to, 62 ; see 
 
 1B7. 
 Trust to be proved by, not declared 
 in writing, statute satisfied if 
 trust manifested by subsequent 
 acknowledgment of trustee ; e. 
 g. by answer, express declara- 
 tion, letter, memorandum, reci- 
 
 tal, 63 ; qu. whether by bill in 
 
 chancery, 63, note (m). 
 
 but relation to subject-matter and 
 
 nature of trust must be clear, 64. 
 
 writing must be signed, 64 ; by 
 
 whom, 65. 
 may refer to unsigned paper, 64. 
 Trust estate, how far assets under 
 section 10 of Act, 684. 
 when to be taken in execution at 
 law under same section, 664. 
 FRAUDULENT, 
 
 Appointment of trustee, 580. 
 Conveyance, within Bankruptcy Act, 
 479, 480 ; within Insolvent Deb- 
 tor's Act, 475. 
 of estate abroad relieved against, 48. 
 Corporators, fraudulent alienation or 
 
 misrepresentation by, 847. 
 Dealing with executor. See Execu- 
 tor, Powers, 455, et seq. 
 Exercise of discretion by trustee. 
 
 See 409, 415, 543. 
 Purchase by trustee of trust estate, 
 repairs only allowed, 466. 
 FREE, 
 
 Grammar school, " school, " (see 3 
 &4Vict. c. 77), 499, 500. 
 FREEBENCH, 
 
 attaches on legal estate in trustee, 
 260. 
 not on equitable estate in copy- 
 holds, 621. 
 FREEHOLD. See Disclaimer. 
 whether estate for life may be devis- 
 ed to trustee notwithstanding, 1 
 Vict, c. 26, 259. 
 "FUNDS," 342. 
 
 in court, assignment of, 613, 614. 
 
 GAME ACT, 
 
 qualification under extended to c. q. 
 t. of lands, 593. 
 GAMEKEEPER, 
 
 must not be appointed for pleasure 
 of trustees, 318. 
 GAVELKIND LANDS, 
 
 Descent of money arising from sale 
 of, 681. 
 trust in, 680. 
 Settled, how, under articles, 157. 
 GENERAL ORDERS, as to distrin- 
 gas, 1 to 5 of 17 Nov. 1841, 861, 
 862. 
 as to interest on simple contract 
 debts, from decree 46th, of Aug. 
 1841, 490, note [g). 
 as to parties to suits, 30th and 32d 
 of 26th Aug. 1841, 852, et seq. 
 as to service of petition for Stop 
 Order, 614, note {I).
 
 770 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 I 
 
 GENERAL ORDERS, continued. 
 as to Trustee Relief Act, 379, et 
 seq. 
 GOVERNMENT, 
 securities, 341, 342, 353. See Invest- 
 ment. 
 GRANDCHILD, 
 
 advancement for, presumed, 216. 
 "GRANT." See Covenant. 
 
 whether inserted in conveyance by 
 trustees, 424 ; see 596, note (r). 
 GRANTEE, 
 
 g^uilty of mala fides, 178. 
 GREEK BONDS, 342. 
 GUARDIAN, 
 
 Advantage, cannot gain by abuse 
 
 of his office, 321. 
 Infant cannot be, 36. 
 Office survives as to testamentary 
 guardians, 300. 
 secus, if joint guardians appointed 
 by court, ib. note [v). 
 
 HARDSHIP, 
 
 court will not enforce against trus- 
 tees contract which involves, 424. 
 HEIR. See 141, Devise ; Resulting 
 trust. 
 c. q. t. attainted, whether his heir may 
 
 sue trustee, 323. 
 Common law heir, when entitled to 
 proceeds of sale of gavelkind 
 lands, G81 ; customary when en- 
 titled to trust estate, 680. 
 Engagement by, to make provision, 
 &c., if estate allowed to descend, 
 enforced, 70. 
 Failure of See EscJieat, Failure of 
 
 c. q. t., Trustee Acts. 
 Favoured, whether more than execu- 
 tor, 188, 805; conf. 181. 
 " Heirs female" in articles, 149. 
 
 " Heir Male" in will, 154. 
 Money to be laid out in land, where 
 heir entitled to, 797, et seq. See 
 Conversion. 
 under bequest to be settled on 
 testator's heir, 805. 
 "Nemo est hjeres viventis," 407. 
 Resulting trust. See Trustee, inf. 
 (a) heir takes, 
 
 upon devise on trust where trust 
 
 not defined by will, G8, 181. 
 unattested documents, whether 
 admissible to prove trust, ib. 
 whether case altered by parol 
 information of trust by tes- 
 tator to trustee, 75, et seq. ; 
 181, et seq. 
 upon devise to one without re- 
 ference to trust where engage- 
 
 ment to execute unlawful 
 trust, 71 ; and even though 
 such engagement does not 
 relate to definite part of es- 
 tate, 73. 
 defendant must discover the 
 
 secret trust, 72, 73. 
 case of engagement to execute 
 trust, but no trust declared, 74. 
 (6) heir does not take, 
 
 upon devise to one without re- 
 ference to trust, where no com- 
 munication to devisee in tes- 
 tator's life, though testator 
 leave unattested declaration 
 of trust, 68 ; and see p. 72. 
 or devisee means to execute un- 
 lawful trust, 73. 
 heir not excluded from by mere 
 conjecture, 181 ; whether by 
 a legacy, 181. 
 in money or devise for conver- 
 sion, where heir takes, 182, 
 etseq. ; but see 194, 197 ; and 
 see liesuUing trust. 
 whether resulting interest de- 
 volves as realty or personalty, 
 182. 
 Settlor, heir of, when bound by trust, 
 
 693, 694. 
 Specialty debts, how heir is liable 
 
 to, 239. 
 Trustee, heir of, is bound by trust, 
 279 ; whether he can disclaim, 
 232. 
 twenty years' possession by, no 
 bar to heir entitled to resulting 
 surplus rents under express 
 trust, 745. 
 Use, the heir is bound by, 3. 
 Volunteer, when the heir is, under 
 limitation in marriage settlement 
 to heirs of husband, 406. 
 HEIRLOOMS, 
 
 Bequest of, to same uses as free- 
 holds in strict settlement, how 
 construed, 158, et seq. See Exe- 
 cutory trusts. 
 c. q. t. his rights in, 594. 
 HEIRS OF THE BODY. Equi- 
 table entail, may be created with- 
 out these words, 141. 
 Construction of, in marriage articles 
 as to chattels, 149. 
 as to freeholds where construed, 
 
 first and other sons, 147, 148. 
 
 in wills whei'e construed first and 
 
 other sons, 153, et seq.; and see 
 
 142, 143, and Executory tnists. 
 
 Include daughters, 149, 156, not 
 
 synonymous with " issue," 155.
 
 INDEX. 
 
 771 
 
 HEIRS OF THE BODY, continued. 
 Purchaser with notice, whether 
 bound by these words, Y27. 
 HERIOT, 
 
 when payable as to copyholds, 272, 
 conf. 402. 
 HERITABLE bond, 53. 
 " HONORARY TRUSTEES," 408. 
 "HOPING," 
 
 may raise a trust, 168. 
 HOUSEHOLD GOODS, how c. q. t. 
 
 of may use, 594. 
 HUSBAND. See Feme Covert. 
 Executrix, husband of, may admin- 
 ister assets during coverture, 2GL 
 Liable for wife's breach of trust, 34. 
 Trastee of wife's separate estate, 
 construed to be, 44, 121, 125, 
 note (x), 694, 728. 
 husband appointed with another 
 upon trust, (inter al.) for wife, 
 not a trustee for her separate 
 use, 123. 
 Wife's property, how far he may dis- 
 pose of, chattels personal, 627 ; 
 chattels real, (equitable), 26, 
 629, et seq. ; and see 9, 12, 631, 
 (legal), 6'29. 
 choses in action, 26, 627, and see 
 369 ; (and as to her life estates, 
 see 370). 
 freeholds (equitable and legal), 
 631, 632. 
 Wife's separate estate, what arrears 
 of can be claimed from hus- 
 band, 642, as to pin-money, see 
 644. 
 if undisposed of, husband surviv- 
 ing, entitled to, 642. 
 suit as to, husband how made party 
 and his costs, 858 ; see 348. 
 HUSBANDRY LEASES. See Leases. 
 
 IDIOT. See Lunatic. 
 IGNORANCE, 
 
 c. q. t. of, as to his rights, 
 
 Acquiescence, defeated by it, 778, 
 
 and so confirmation, 472, 778. 
 
 Concurrence in breach of trust 
 
 prevented by it, 774. 
 Laches excused by it, 471. 
 Law, ignorance of the, 472, 778. 
 Presumption of waiver, how far 
 
 rebutted by it, 737. 
 Release defeated by it, 224, 778._ 
 Statutory bar, not prevented by it 
 from running in equity, 733. 
 Trustee of, as to his true character, 
 751, conf. 790. 
 ILLEGAL Trust. See Ualaioful 
 trust. 
 
 ILLEGITIMATE CHILD, 
 
 advancement for presumed, 216. 
 future, trust for not good, 131. 
 IMAGINARY VALUES, 
 
 trustee not charged with, 766. 
 IMBECILITY. See Lunatic. 
 IMPERATIVE powers. See Failure 
 
 of Trustee, Poioers. 
 IMPERTINENCE, 
 
 Statement of trustee's misconduct is 
 not, 711. 
 IMPLIED. See Notice. 
 Devise, 250. 
 
 Powers, whether charge implies 
 
 power of sale, 251 ; and see 257, 
 
 258. 
 
 Trusts, defined, 140, note (1); and 
 
 see c. VII. 2, p. 167. 
 
 agreement to settle under, 173. 
 
 See Settlement. 
 Charge, under, 173. See Charge. 
 Contract for sale, uiader, 174, l75. 
 
 See Purchaser. 
 Words precatory from, 167, no 
 trust created, 
 where uncertainty, 168, et seq. 
 doctrine of, discouraged, 173. 
 not a question of mere gram- 
 matical import, 171. 
 trustee of, not bound so strictly 
 as by common trust, 172. 
 Words, " subject thereto," implied, 
 191. See Resulting trust. 
 IMPROVEMENTS, 
 
 Allowance for, on setting aside cha- 
 rity lease, 511. 
 purchase by trustee, 466, 468. 
 not allowed in case of fraud, 466. 
 tortious sale by trustee, 764. 
 Lasting, lien of trustee for, 222. 
 On lunatic's estate from his person- 
 alty, 827. 
 e. g. for draining, engine at mine, 
 inclosure, ib., conf. 830. 
 Ornamental by trustee, expense of 
 
 not allowed, 513. 
 Tenant for life, whether directed at 
 his instance, 514. 
 IMPROVING LEASES, 
 
 of charity lands, 504. 
 INACTIVITY, 
 
 ofone co-trustee, 574, whether ground 
 for appointing receiver, 870. 
 INCAPACITY of trustee, ground for 
 appointing new trustee, 710, see 693; 
 receiver, 870. 
 INCONVENIENCE, 
 
 of granting relief a bar to suits, 739, 
 
 et seq. 
 how far applicable as to charities in 
 suits for account, 787, et seq.
 
 772 
 
 LEWIN ON THE LAAV OF TRUSTS, ETC. 
 
 INCUMBRANCE, 
 
 trustee cannot buy up for himself, 
 318. 
 INDEMNITY. See Attonieij (power 
 of). . . 
 
 Advice of charity commissioners, 
 persons acting under indemnified, 
 785 ; See Payment, inf. 
 Bond of, on appointment of new 
 trustees, 580, 581. 
 on distribution of trust fund, 367 ; 
 and see 721. 
 c. q. t. bringing action in name of 
 
 trustee must give, 591 ; see 719. 
 Court trustee acting under sanction 
 of, obtains without release, 375; 
 and see 368, 765. 
 as to future instalments when one 
 payment made under court's 
 direction, 376. 
 Leaseholds when trustees and exe- 
 cutors can require in respect of, 
 426; and see 223. 
 Legal liability, trustee who has in- 
 curred at request of c. q. t, may 
 claim indemnity, 562 ; but see 
 563, 564. 
 Payment by trustee, &c., of charity 
 funds to official trustees, 382. 
 into court by, under Trustee Re- 
 lief Act, 377, note [x). 
 INDIA. See Bengal, East Indies. 
 INFANT. See Advancement, Main- 
 tenance, Trustee Acts. 
 Acquiesce cannot, in breach of trust, 
 
 777 ; purchase by trustee, 471. 
 Administration, durante miaoritate, 
 
 834, note (I). 
 Assurances by, he may avoid, 37, 38, 
 
 inf. 
 Attorney, cannot be in suit, might 
 be to deliver seisin, 36 ; see Power, 
 inf. 
 Bailiff, cannot be, 36. 
 Breach of trust, cannot commit, 39, 
 373 ; or concur in, 774. 
 unless guilty of fraud, 39, 775. 
 cannot acquiesce in, confirm, or 
 
 release, 777. 
 protected after attaining 21, until 
 he has full information, 777 ; 
 and see Eemed;/, inf. 
 Capacity, has no legal, 35. 
 Confirm cannot, breach of trust, 777 ; 
 
 purchase by trustee, 472. 
 Conversion of his property, not per- 
 mitted, 829. 
 case distinguished from that of 
 lunatic, and why, 829. 
 but since late Wills Act, see 831. 
 mortgage, &c., paid off out of his 
 
 money, considered personalty, 
 830. 
 timber cut, preeeeds with accu- 
 mulation remain realty, 829. 
 except perhaps where he is te- 
 nant in tail, and why, 830. 
 but necessary outlay for realty 
 thrown on personalty, 830. 
 e. g. keeping up house, option 
 to purchase at given price, 
 repairs, ib. 
 seisin changed from ex parte 
 materna to ex parte paternfi, on 
 renewal of lease, 831. 
 Debts, confirmed by, after attaining 
 majority, 776. 
 contracted by, for necessaries, 485. 
 Deed, his delivery of, its effect. 
 Disability of, how remedied, 36. 
 See Trustee Act ; and as to settle- 
 ment of infant's estate on mar- 
 riage, see 18& 19 Vict. c. 43. 
 Discretion, he has not any legal, 36. 
 Elect, cannot, 816. 
 Executor, when he might formerly 
 have acted as, 36 ; have appointed, 
 25. 
 Feoffment by, not void, but voidable, 
 27. 
 by custom of Kent, infant of 15 
 years may make for value, and 
 semble without, 27. 
 Fine of. See Fine, Recovery, inf. 
 Fraud, may not practise, 39 ; and 
 
 see 373, 775. 
 Gift to, presumption that he takes 
 
 beneficially, 39. 
 Guardian to a minor, he cannot be, 
 
 36. 
 Laches, of his trustee, in not prose- 
 cuting legal right whether barred 
 by, 720, et seq.; see 744. 
 Liable, not personally, to trustee for 
 
 expenses, 563, note {x). 
 Limitation of suit. See Limitation, 
 Stat, of, Mesne Rents and Profits, 
 inf , and 754, note. 
 Mesne rents and profits, may file bill 
 for account of, on legal title, 
 753, 755, notes, 
 account barred • unless brought 
 within six years after majo- 
 rity, 755, note, 
 carried back to accruer of title, 
 754, note, 
 but where defendant ignorant 
 of true character as trustee 
 only to filing a bill, 751. 
 Ministerial acts, he may discharge, 
 36 ; e. g. as lord of manor he may 
 give effect to custom.
 
 INDEX. 
 
 773 
 
 INFANT, contimicd. 
 
 Payment to, by trustee, 372. 
 Power of attorney by, void, 37. 
 collateral cannot execute if re- 
 quiring discretion, 36. 
 Receiver, he cannot be, 3(5. 
 Recovery of, formerly reversible only 
 
 during nonage, 26. 
 Release, he cannot, 777. 
 Relinquishment, by trustee of office, 
 
 he cannot consent to, 565. 
 
 Steward of manor, he cannot be, 36. 
 
 but acts by him in this character 
 
 cannot be avoided, 36, note (c). 
 
 Tenant in tail. See Recovery, Fines 
 
 and Recoveries Act. 
 Trust, how far he can create, 26, 27. 
 created by him would not be en- 
 forced to his prejudice, semble, 
 27. _ 
 Trustee, infant ought not to be ap- 
 pointed, 35 ; substitution of new 
 trustee for, 895, note {m). 
 how infant conveyed under Trus- 
 tee Act, 835, note (ii). 
 for infant, how he may purchase 
 trust property, 465. 
 Will, cannot make, 27 ; formerly 
 might of personalty if 14 years of 
 age, ib. 
 INFORMATION. See Duties. 
 c. q. t. may require as to state of 
 
 trust, 599 ; see 427. 
 Ordinary remedy for breaches of 
 trust as to charities, 779. 
 where an information proper, and 
 
 where a bill, ib., note (6). 
 advowson where vested in trustees 
 for parishioners, information 
 improper, 107. 
 corporation against, for removal 
 of governors dismissed with 
 costs, 493. 
 but where mal-administration of 
 property court interposes, ib. ; 
 and see 31. 
 INHABITANTS, 
 
 Election of clerk by. See Parish- 
 ioners, 107, 108. 
 Of a place, trustees required to be, 
 711. 
 INJUNCTION, 
 
 Breach of trust, c. q. t. may have 
 against, 723. 
 where co-trustee should apply for, 
 317. 
 Improper sale, whether c. q. t. may 
 have against, 422. 
 whether mortgagor, 423, note {lo). 
 Lands abroad, from taking posses- 
 sion of, 48. 
 
 Payment into court, notwithstanding 
 
 injunction, 869. 
 Timber as to, 753, note. 
 Waste where tenant for life threatens, 
 trustee to preserve should apply 
 for injunction, 408. 
 INQUIRIES, 
 
 Assignee of equitable interest should 
 
 make, of trustee, 605. 
 c. q. t. by, trustee must answer, 427 ; 
 
 and see 599. 
 Charity commissioners by, 784; see 
 779 783. 
 INQUISITION, 132, 677. See Alien. 
 INSOLVENCY. See Bankruptcij, 
 Insolvent. 
 Debts, trust for, how affected by in- 
 solvency, 475. 
 Equity to settlement of feme covert 
 
 as against assignees, 369. 
 Limitation over, on or until, 135, et 
 seq. 
 person cannot so limit over his 
 
 own property, 136. 
 except to extent of portion re- 
 ceived with wife on marriage, 
 
 . ^^• 
 Maintenance, trust for, at discretion 
 
 of trustees how far assignees take 
 under, 133, 134.; and see 597. 
 Proof undei-. See Bankruptcy 
 
 (Proof). 
 Trust estates, where they pass to as- 
 signees on trustee's insolvency,278. 
 See Banhmptcy (Trust Estate). 
 INSOLVENT, 
 
 C. q. t. tenant for life, goods left in 
 
 his possession not forfeited, 594. 
 Co-trustee, whether necessary party 
 to suit, 848 ; whether representa- 
 tives of deceased are solvent co- 
 trustees, 847. 
 Judgment against future property, 
 
 effect of, 29. 
 Property of, up to final discharge 
 
 vests in assignees, 29. 
 Trust, how far he can create, 29. 
 Trustee, insolvent is not absolutely 
 disqualified from being, 40 ; but 
 see 711, and note [g). 
 his insolvency a ground for ap- 
 pointing receiver, 870. 
 INSPECTION, 
 
 Accounts of c. q. t.'s right to, 599. 
 Vouchers of, 428. 
 INSTRUMENTAL TRUSTS, 21. 
 INSURANCE, 
 
 Company, shares in, given in succes- 
 sion should be converted, 812. 
 Executor held not liable for omitting, 
 against fire, 332; see Trustee, inf.
 
 774 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 
 INSURANCE, continued. 
 
 Fines, for renewal, payable out of 
 
 rents, as to insurance, 391. 
 Mortgagee not allowed for, in absence 
 
 of stipulation, 516. 
 Statute, 14 Geo. III. c. 48, does not 
 prohibit on life of A. in name of 
 B., when both names appear on 
 policy, 136. 
 Trustee, whether he should insure 
 against fire, 516. 
 when liable for omitting to main- 
 tain policy, 764. 
 his lien for premiums, &c., ad- 
 vanced for, ib. 
 INTENTION, 
 
 will, if possible, be carried into effect 
 in trusts, 100, 103; and see Volun- 
 tary Assurance. 
 will not control the operation of the 
 Statute of Uses, 246. 
 INTEREST, 
 
 c. XIII. s. 4, p. 358. See Investment. 
 c. q. t. receiving on improper loan, 
 where estopped from charging 
 trustees, 776 ; conf. 769. 
 Charged against assignees, 
 
 executor, receiver, trustee, &c., for 
 moneys improperly retained by 
 them, 358, 359 ; see as to retain- 
 er of charity funds, 502. 
 no excuse that money was not 
 
 used, 359. 
 but delay may be explained by 
 
 luistake, ib. ; and conf. 790. 
 executors, from what period charg- 
 ed, 364. 
 not on money that never came 
 to hand, 365 ; and see 329, 
 Hate, Trade, inf. 
 Compound, charged where accumu- 
 lation directed, 364 ; and see 
 Trade, inf. 
 Costs, interest on, not allowed to 
 
 trustee, 558. 
 Debts on, what allowed under trusts 
 
 for creditors, 489 ; see Debts. 
 Fines for renewals, what interest 
 
 charged in contribution for, 397. 
 Mesne rents and profits, not charged 
 ou account of, 752. 
 nor where purchase by trustee set 
 aside, 466. 
 Proof for, by c. q. t. on bankruptcy 
 
 of trustee guilty of breach, 771. 
 Rate of, £4 per cent, charged usual- 
 Iv where simple retainer, 361, 
 362. 
 £5 per cent, where direct breach 
 &c., 362 ; and see Trade, inf. 
 Trade, money employed in, by trus- 
 
 tee ; c. q. t. has option of £5 per 
 
 cent, or actual profits, 319, 361. 
 
 whether with rests, 362, 363 ; and 
 
 see Trade. 
 money lodged at bankers' in trus- 
 tee's name considered so em- 
 ployed, 361. 
 INTESTACY, 
 
 C. q. t. of, as to personal estate with- 
 out next of kin, executor enti- 
 tled, 324. 
 as to fee, without heirs, whether 
 trustee entitled, 321, et seq. 
 Mortgagor of, in fee, without heirs, 
 mortgagee entitled, subject to mort- 
 gagor's debts, 322, 679. 
 Of purchaser of fee, without heirs 
 after purchase money paid, but 
 before conveyance, vendor keeps 
 money and estate, 322. 
 Trustee, when he should avoid, as to 
 trust estate, 265, et seq. 
 INTESTATE, 
 
 Trustee not within Lord St. Leonards' 
 Trustee Act, s. 10, 838, note [d). 
 INTIMIDATION. See Terror. 
 INTRUDER, 
 
 not bound by a use, 3. 
 INTRUSION, 
 
 may be of a trust, 621. 
 INVENTORY, 
 
 when desirable, 244. 
 trustee neglecting, may be deprived 
 of costs, ib. 
 INVESTMENT. See Receipts. 
 Construction of particular expres- 
 sions, as 
 " to call in securities not approved 
 of by executors," 329; such securi- 
 ties as trustees may approve, 345; 
 " consent of tenant for life," " of 
 wife" to loan to husband, 340 ; see 
 
 339 ; " convert with all convenient 
 speed," 329 ; " to lay out at trus- 
 tee's discretion," 338 ; " to employ" 
 
 340 ; " to lay out on such good se- 
 curity as trustee can procure, &c.," 
 338 ; government or good securi- 
 ties, 353 ; and see 341, 342 ; " to 
 place out at interest, or other way 
 of improvement," 340 ; " to call in 
 and lay out at greater interest," 
 341 ; trustees " required," 339, 349. 
 
 Court of Chaiicenj, 
 
 Bank annuities, sometimes refuses 
 to sell out for investment on mort- 
 gage, even where express power, 
 346. 
 
 Mortgage, does not call in, without 
 previous inquiry whether advisa- 
 ble, 355.
 
 INDEX. 
 
 75 
 
 INVESTMENT, continued. 
 
 Personal security, will not invest on, 
 even where express power, 338 ; 
 see 343. 
 Selects for investment £3 per cent, 
 consols, 351 ; sometimes (on ac- 
 count of time of payment of divi- 
 dends) allows £3 per cent. Red., 
 354. 
 Duties, t&c, of trustees as to invest- 
 ment. See Conversion, India. 
 Bank private, trustees may invest for 
 temporary purposes to trust ac- 
 count, 330, 332 ; but not other- 
 wise, 336; and see 357, 361. 
 Call in, trustee should, personal pro- 
 perty outstanding, 327, 328; see 
 329 ; on hazardous security, .'i43. 
 Consols or bank annuities, should 
 not sell out to invest in irregular 
 funds, 353. 
 Control, must not put money out of 
 his own, 334 ; must not put mo- 
 ney under control of co-trustee or 
 co-executor, 316, 357. 
 Inquiry, should make due as to va- 
 lue of security, 345, 349, 350. 
 as to reversion, 350. 
 as to title of borrower, 345 ; and 
 see 349. 
 Lend, must not, to co-trustee, 338, 
 
 345 ; conf. 329. 
 Mix, must not, trust property with 
 his own, 332, 337; see 759; or 
 with sti'anger's, 350. 
 Part with trust money, should not, 
 except on delivery of security, 
 351. 
 Power of investment, must construe 
 strictly, 340 ; see 346. 
 where no express power, trustee 
 should invest in £3 per cents., 
 and execute declaration of trust, 
 351. 
 especially where successive estates, 
 
 352; see 812. 
 except where other premises spe- 
 cifically bequeathed, 354, 809. 
 Productive, should make trust fund, 
 
 336, 337 ; see 357, 358. 
 Receipts, whether power to give im- 
 plied by trust for investment, 523. 
 See Receipts. 
 Solicitor, trustees should not, when 
 lending, employ borrower's solici- 
 tor, 358. 
 Tenant for life, trustees must not 
 favor at expense of remainderman, 
 339, 344, 352 ; and see 343, 346, 
 348, 415, 421, 808. 
 Trade, must not invest in, or specu- 
 
 lation, 319, 340; see 361, et seq., 
 760. 
 Varying securities, power of trustees 
 as to, 523 ; see Receipts, sup. 
 Liabilities incurred by imptroper in- 
 vestment or non-investment. 
 Capital, as to, where money impro- 
 perly retained. 
 {a) where no direction to invest, 
 
 353. 
 (6) where express direction to in- 
 vest in funds, and neglect so to 
 do, 355 ; and see 357, 764. 
 (c) where direction to invest in 
 funds or real security, 355, 
 764. 
 when stock improperly sold, 356, 
 772 ; and see Conversion [im- 
 plied and tortious). 
 Interest, as to, c. xiii. s. 4, p. 358 ; 
 
 see Interest. 
 Securities, particular kinds, whether 
 authorized. 
 
 [a) Generally, 
 
 Annuity with policy, 341 ; bank 
 or government annuities, 351 ; 
 bank, private, 336 ; bank stock, 
 
 341, 352 ; copyholds for lives, 
 350 ; East India Company, se- 
 curities of, 355 ; exchequer bills, 
 
 342, and note (t) ; foreign bonds, 
 &c., 329, 812; funds, 342; go- 
 vernment securities, 341, 342, 
 353 ; Greek bonds, 342 ; judg- 
 ment, 350 ; leaseholds for lives, 
 349 ; for years, ib. ; long annui- 
 ties, 340, 350, 352, 810 ; Mexi- 
 can bonds, 329 ; mortgage, see 
 inf. ; real securities (as to se- 
 cond or joint, 350) ; navy £5 
 per cents., 353 ; personal secu- 
 rity, inf. ; public securities, 352 ; 
 purchase, 349 ; railway mort- 
 gages, 345 ; reversion, 350 : 
 shares of canal, insurance, rail- 
 way, &c., companies, 812; South 
 Sea Stock, 341 ; stock of private 
 company, ib. ; £3 per cent, con- 
 sols, 351 ; £3 per cent, reduced, 
 354; £31- per cent., 340; tolls 
 and road bonds, 346 ; trade, 
 340 ; and see Trade. 
 
 [b) Personal, 
 
 executor should call in investments 
 
 on, 328, 329. 
 trustee should not invest on ; and 
 
 see instances, 337, 338. 
 unless where express authority, 
 
 338 ; what equivalent to such 
 
 authority, see 338, 341. See 
 
 Court, Trade, sup.
 
 776 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 INVESTMENT, continued. 
 
 whether on bank stock, &c., 341, 
 note {p) ; exchequer bills, 342. 
 (c) Real, 
 
 1. where not expressly authorized, 
 
 quaere, whether trustees may 
 invest upon, 342, 343 ; and 
 see 523. 
 not where express direction to 
 invest in the funds, 344; and 
 see Court, supra. 
 
 2. where expressly authorized, 
 trustees may retain existing 
 
 mortgages, if sufficient, 346 ; 
 and see 329. 
 trustees may sell out stock, and 
 invest on mortgage, 344, 34G. 
 should not do so for mere ac- 
 commodation as to secure 
 equal amount of stock and 
 interim dividends, 344. 
 secus, where security for equal 
 amount and interim inter- 
 est, ib. 
 
 3. what property it authorizes, 
 not loans on railway mortgages, 
 
 345. 
 
 nor on leaseholds for lives, -n-ith 
 policy, 349 ; (secus as to lease- 
 holds renewable for ever, ib.) 
 
 nor personal security with judg- 
 ment entered up, 350. 
 
 qu. as to leaseholds for years, 
 349 ; reversion, equity of re- 
 demption, joint mortgage, 
 350. 
 
 when it authorizes road bonds 
 and mortgages of tolls, 346. 
 
 when mortgage of real security 
 in Ireland under 4 & 5 W. 4, 
 c. 29, 347. 
 
 purchase, 349 ; and see 421. 
 
 4. generally, 
 
 trust, how kept out of sight on 
 mortgages and transfers, 346, 
 347. 
 IRREVOCABLE trusts, 481, et seq. 
 
 See 101, Debts. 
 IRELAND. See Jurisdiction. 
 
 lands in, within Lord St. Leonards' 
 
 Trustee Act, 835, note {s). 
 as to Trustee Act, 1850 ; see s. 55, 
 
 901, note (c). 
 partition of lands in, not decreed 
 
 here, 50. 
 semble, unaffected by Thellusson Act, 
 120. 
 " ISSUE." See Executory trusts. 
 construed in articles, where to mean 
 
 _ first and other sons, 147. 
 distinguished from heirs of the 
 
 body, 155. 
 Includes daughters as well as sons, 
 
 149, 156. 
 Purchase, a word of, not of limitation, 
 
 156. 
 
 JOINT, 
 
 Account, payment to, 330 ; money 
 
 belonging on, 347. 
 Contract, effect of disclaimer as to 
 
 237. 
 Co-trustees, their joint and several 
 liability for breach of trust, 767, 
 772. 
 exercise joint office, 298. See Co- 
 executor, Co-trustee. 
 JOINT TENANT. See Copyholds, 
 (Fines). 
 Devise to two as joint tenants, where 
 
 one an alien, 39 ; and comp. 73. 
 Forfeiture by one joint tenant, of 
 
 chattels, 260. 
 Renewal of lease by, 218. 
 JOINT TENANCY, 
 
 Construed in articles, tenancy in 
 common, 152. 
 secus in executory trusts in wills, 
 163. 
 except where testator provides 
 for children or puts himself 
 in loco parentis, 164. 
 Implied, in equity, where purchase 
 by several contributes equally, 
 201. 
 secus where contribution unequal, 
 
 202. 
 not implied in advance on mort- 
 gage, 201, or in partnership, 
 202. 
 whether implied at law by grant to 
 two and survivor and heirs of 
 survivor, 251; whether on a 
 devise, 252. 
 Minors between, whether it can be 
 severed, 152. 
 JOINTURE, 
 
 power to charge not authorized in 
 executory trusts by " usual pow- 
 ers," 165. 
 JUDGMENT. See Bond, Decree. 
 Charging order of stock, shares, t&c, 
 underl&2Vict.c. 110, s. 14, 
 670. 
 3 & 4 Viet. c. 82, s. 1, 670, 
 note (Z). 
 by whom and when made, 670, 
 
 671. 
 its effect, 671. 
 Effect of, in equity. 
 
 as to trusts by fi. fa., 648, 662. 
 by levari facias, 649.
 
 INDEX. 
 
 777 
 
 JUDGMENT, contiimed. 
 
 by elegit, G49, et seq. 
 
 (a) cases in which judgment cre- 
 
 ditor has remedy in equity, 
 after death of conusor, 663. 
 for redemption of mortgage, 6 jO. 
 for removing legal impediment, 
 
 650, 658. 
 
 against equitable interest, 650, 
 
 651, 652, 658, note {v) ; 
 whether as against assignee 
 of owner of equitable inter- 
 est, 653. 
 
 money to be laid out in land, 
 796. 
 whether against laud subject to 
 ti'ust for conversion, 653. 
 vendor's interest after contract 
 for sale, 654. 
 surplus proceeds under trust 
 for sale, or power of sale in 
 mortgage, 656; see (lo't. 
 under 1 & 2 Vict. c. 110, 656, 
 (Hod. 
 against mortgagee, 657, note 
 
 (0- 
 
 [b) how equity facilitates by sale, 
 658 ; see notes {v) and {to), 663, 
 664. 
 
 {(■) how much of estate taken in 
 execution, 
 formerly moiety of trust, 658, 
 659; see note {t/). 
 entirety of equity of redemp- 
 tion, 660. 
 trust by way of mortgage, c[u., 
 661. 
 now entirety under 1 & 2 Vict, 
 c. 110, s. 11, 666. 
 (c?) when elegit, &c., must be sued 
 out, 662 ; and see note (<). 
 Effect of, at law, 
 
 at common law, 646 ; under Statute 
 
 of Westminster, 647. 
 execution at law of trust estate, 
 under Statute of Frauds, 664 ; 
 under 1 & 2 Vict. c. 110, s. 11, 
 666,669. 
 Insolvent, entered up against, 29. 
 Late statutes, relating to, 
 
 1 & 2 Vict. c. 110, 666. 
 
 2 & 3 Vict. c. 11, 668. 
 
 3 & 4 Vict. c. 82, 669, 670, note {I). 
 18 & 19 Vict. c. 15, 669; see 
 
 657, note {t). 
 Register county, priority of judg- 
 ments as to lands in, 672. 
 Registration and re-registration of, 
 668, and note (c). 
 old law applicable, as to purcha- 
 sers without notice of registered 
 May, 1858.— 50 
 
 judgment, 668. 
 purchaser, &c., not bound by un- 
 registered judgment, 669. 
 Searches for, 668. 
 
 Tacking, 660 ; see note (5), and 662. 
 Trustee's estate, judgments bind, 279. 
 but c. q. t. will be protected, ib. 
 JUDGMENT CREDITOR, 
 
 Postponed to prior equitable mort- 
 gagee, 280, and note (i/). 
 Purchaser for value, judgment cre- 
 ditor is not, ib. 
 Taking trustee's legal estate in exe- 
 cution bound by trust, 261, 280. 
 JURISDICTION. See Abroad, Ame- 
 rica, Bemerara, Ireland, West In- 
 dies, Scotland, Sicily, Trustee Acts. 
 equity can enforce trust of personal 
 property out of, if parties with- 
 in, 47. 
 equities of lands out of, if parties 
 \vithin, and if no obstacle to 
 execution of decree, 47 ; not if 
 such obstacle exist, 49. 
 case where lex loci does not permit 
 equitable estate, nor limitations of 
 legal estate, 53. 
 trustee on voyage to India not out 
 of, under Lord St. Leonards' Trus- 
 tee Act, 838, note (e). 
 JUROR, 
 
 c. q. t. of lands, when qualified to 
 be, 592. 
 JUS DISPONENDI, 
 
 of c. q. t, 21, 595, et seq. 
 JUS HABENDI, 
 
 of c. q. t., 21, 585, et seq. 
 
 KENT, 
 
 custom of. See Infant. 
 
 KING. See Crown. 
 
 KNIGHT OF A SHIRE. See Mem- 
 ber of Parliament. 
 
 LACHES. See Acquiescence. 
 
 Bar from, to relief in equity, 373, 
 
 741, et seq. See Limitation. 
 account restricted to filing of bill, 
 
 756, note, 
 constructive trust to, 224. 
 impeaching fraud of executor to, 
 
 459. 
 resulting trust to, 207. 
 setting aside trustee's purchase, 
 
 470. 
 Not imputable to persons in distress, 
 
 471 ; and see 737. 
 or in ignorance, 471. 
 to remainderman of renewable 
 
 leaseholds during life of tenant 
 
 for life, 402.
 
 778 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 LACHES, continued. 
 
 Trustee of, in enforcing covenant, 
 765 ; investing trust property, 
 764 ; insuring, 764. 
 shall not prejudice c. q. t., effect 
 of the rule, 719, et seq. 
 LAND. See Residiing trust. 
 
 converted to be taken as money. 
 
 See Conversion. 
 Dischai-ged from trust where money 
 
 has been raised, 428. 
 Tortiously sold by trustee, c. q. t. 
 may require purchase of other 
 lands of equal value, 763. 
 or may take proceeds of sale with 
 
 interest, 764. 
 or present estimated value of lands 
 sold, allowing for improvements, 
 ib. 
 Trust money tortiously invested in, 
 by trustee, may be followed, 206, 
 762, 763; but see 757. 
 •'LANDS," 
 devise of will pass money to be laid 
 out on land, 796. 
 LAND-TAX, 
 
 of lunatic's estate, redeemable by 
 sale of timber fit to be cut, 826. 
 LAPSE, 
 
 of time. See Laches, Time. 
 LAPSED LEGACY, 
 
 out of real estate. See Legacy. 
 LAWFUL TRUSTS, 22, c. vi. s. 1, p. 
 
 103. See Unlawful trusts. 
 LEASE. See Charities. Leasing, 
 power of. 
 Covenants, indemnity against, exe- 
 cutor of lessee entitled to, 426 ; 
 unless he has assented to be- 
 quest, ib. 
 trustee for sale cannot insist on 
 where settlor is an assignee, 
 426 ; and see 223. 
 what inserted, when lease granted 
 by devisees, or to executors, 425, 
 note [k). 
 Duration of building, 510. 
 
 of husbandry, 508, et seq. 
 Trustees, their power to grant gene- 
 rally, 522. 
 not to or for benefit of themselves, 
 
 462, 505. 
 for sale cannot grant, 416. 
 LEASEHOLDS. See Renewable 
 Leaseholds, Renewals. 
 Converted, they should be when be- 
 queathed in succession, 808. 
 unless contrary intention can be 
 collected, 809, et seq. 
 Power to purchase, 349. 
 Security, when authorized as, 349. 
 
 LEASING, POWER OF, 
 
 Effect of in determining legal estate 
 taken by trustee, 259 ; see 257. 
 as to effect of trust for leasing, 
 see 256. 
 "Usual power," is a, 164; so of 
 granting building or mining 
 leases where property requires, 
 ib.; but see 165. 
 where inserted under executory 
 trust, silent as to powers, 164. 
 LEGACY. See Legatees, Residuar;/ 
 Legatee. 
 Devised real estate out of, and which 
 lapses or is void, sinks for bene- 
 fit of devisee, if by way of charge, 
 179, 189, 193. 
 if bv wav of exception, results to 
 
 heir, 193. 
 unless subject to residuary devise 
 under 1 Vict. c. 26, s. 25, 195. 
 whether it can be passed under 
 gift of residuary personal es- 
 tate, 196, 197. 
 Executor may appropriate, 517 ; his 
 assent to, 243, 426, 454 ; he may 
 claim though he renounce pro- 
 bate, 234; in East Indies to, for 
 trouble, may be disclaimed and 
 commission taken instead, 547. 
 Heir to, will not necessarily rebut 
 
 resulting trust, 181. 
 Limitation, Stat, of, when legacy is 
 
 barred by, 744, note {x). 
 Sale of estate, charged with legacy 
 not yet payable, 430. 
 LEGAL CHARGE. See Charge, 
 Purchaser. 
 trust distinguished from, 18 ; and 
 see 282. 
 LEGAL ESTATE, 
 
 Assign it, trustee may, 262 ; but as- 
 signee bound by trust, unless pur- 
 chaser without notice, 279. 
 Bankruptcy of trustee, how it is af- 
 fected by, 273, and see 287. 
 assignees, if they take trust estate, 
 are bound by trust, 280. 
 Burdens annexed to legal estate in 
 trustee. See Privileges, &c., inf. 
 Chattels, devolution of, to adminis- 
 trator or executor of trustee, 260: 
 subject to trust, 279 ; and see Ex- 
 ecution, Executor, Probate (Pre- 
 rogative). 
 Curtesy, is subject to, in trustee, 260 ; 
 but tenant by, bound by trust, 
 279. 
 Devise it, trustee may, or bequeath 
 it, 262. 
 when it passes under general
 
 INDEX. 
 
 779 
 
 LEGAL ESTATE, continued. 
 
 devise, 262, et seq. See De- 
 vise. 
 when trustee should devise trust 
 estate, 265. 
 whether devisee can execute the 
 trusts, 268 ; as to leaseholds, 
 see 267. 
 Disseisor of trustee is not bound by 
 
 the trust, 287. 
 Dower is subject to, in trustee, 260, 
 but dowress, bound by trust, 279. 
 Equitable, compared with, 44, 103. 
 Escheat, estate in trustee formerly 
 subject to, secus now, 260. 
 whether lord taking by, bound by 
 
 the trust, 280, et seq. 
 as to copyholds and customary 
 
 freeholds, see 283, 284. _ 
 as to equity of redemption, see 
 284. 
 Forfeiture, estate in trustee formerly 
 subject to, secus now, 260 ; see 
 286. 
 but the lord was liable to the trust, 
 280. 
 Heir, devolution of trust estate to, 
 
 260 ; bound by trust, 279. 
 Insolvency of trustee, how it is af- 
 fected by, 278. See Bankruptcij, 
 sup. 
 Judgments against mortgagee, 
 against trustee bind trust estate, 
 but c. q. t. protected, 278, 279; 
 and see 280. 
 Outlawry of trustee, its effect, 287. 
 Privileges, &c., annexed to legal es- 
 tate in trustee, 268, et seq. 
 e. g. he brings actions, 269 ; see 
 590, 591, proves in bankrupt- 
 cy, presents to living, appoints 
 steward, 269 ; pays admis- 
 sions for copyholds, 272 ; 
 liable to rates, 271; trading 
 as trustee is amenable to 
 bankrupt laws, 272 ; title 
 deeds as to, 592. 
 whether entitled to vote for coro- 
 ner, 269 ; see 592 ; not for 
 member of parliament, 271. 
 Settlor, becoming re-vested in, will 
 
 not defeat trust, 99. 
 Trustee in, c. xi. p. 246. See 512, 
 590, Privileges, &c., sup. Uses, 
 Stat, of, inf. 
 (1) commensurate with trust if 
 possible, 249 ; see 252. 
 legal estate, enlarged, 250 ; sup- 
 plied in toto, e. g. by nature 
 of trust for feme covert; by 
 appointment of '' trustee," 
 
 " trustee of inheritance,"' by 
 devise to A. as trustee, and 
 nomination by codicil of B. 
 " as trustee" in place of A., 
 250. 
 (2) legal estate curtailed, from 
 nature of trust, 252. 
 limitation in fee to trustees to 
 preserve when cut down, 253. 
 fee where trustees take with- 
 out "heirs," 251, et seq. 
 where given to trustees on par- 
 tial trust, remaining interest 
 executed by Stat, of f ses. 
 253, et seq. ; see 252, 257, 
 and Uses, Statute of, inf. 
 exceptions, e. g. where trusts 
 for separate use intervene. 
 255, 256 ; trust for leasing, 
 to raise money by sale, 256 : 
 discretionary powers in trus- 
 tees, 257 ; secus, if such pow- 
 ers do not affect fee, 258. 
 late Wills Act, its effect on de- 
 vises to trustees, 259. 
 Uses, Statute of, when legal estate 
 executed by, in c. q. t., 246 : 
 partially, 252, 253. 
 special trusts are not within, 247. 
 e. g. under trust to " apply 
 rents," " convey" estate, 247. 
 see 252 ; " hold for separate 
 use," 247, see 255 ; " pay 
 rents," 247; see 252; "pre- 
 serve contingent remainders," 
 " raise money," " sell," 247 — 
 trustee takes legal estate, 
 secus where trust under deed 
 " for A. &c., for her separate 
 use," 247 ; to permit A. to 
 receive, 248, see 252 : copy- 
 holds " to be transferred," 
 248 ; or mere charge of debts. 
 248, see 251. 
 whether under trust " to pay 
 unto, or permit to receive." 
 249. 
 LEGAL POWERS, 
 
 distinguished from equitable. 525. 
 LEGAL TITLE, 
 
 relief upon in court of equity : see 
 752, note (1). 
 LEGATEE. See Leffacj/. 
 
 Accounts may require inspection of. 
 
 but no copy, 599. 
 Fraudulent sale of assets by, execu- 
 tor may impeach, 459. 
 Payment, may claim, when exclu- 
 sively interested in legacy, 597 ; 
 legacy to purchase annuity, ib. 
 Trust cannot be averred against. 59.
 
 780 
 
 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 LESSEE, 
 not prejudiced where purchase by 
 trustee for sale set aside, 467. 
 LETTER, 
 
 may prove declaration of trust, 63. 
 how far parol evidence may be ad- 
 mitted to writer of, 64. 
 LETTERS PATENT, 
 
 necessary for declaration of a use by 
 crown, 59 ; see 24. 
 LEVARI FACIAS. See Judgment. 
 execution under, as to equitable es- 
 tates, 649. 
 legal estates, 646. 
 writ of, from the crown, 646, note (1). 
 LEX LOCI. See Jurisdiction. 
 
 descent of trust is subject to, 680 ; 
 see 681. 
 LIABILITY. See Corporation, Co- 
 trustees, Executor, Investment. 
 c. q. t. of, who has concurred in 
 breach of trust, 771 ; see 353, 392, 
 ^&S, 846 ; for trustees' expenses, 
 562 ; see 873. 
 Ferae covert, separate property of, 
 633, et seq., 639, 640, 642. See 
 Feme Covert. 
 Husband of, for wife's l)reach of 
 
 trust, 34; see 261. 
 Solicitor, of, for wilfully advising or 
 concurring in breach of trust, 763, 
 note {d). 
 Trustee, of, for breach of trust; see 
 Breach of trust ; for destruction 
 of contingent remainders, 406, 409 ; 
 410 ; for improper sale, 415 ; for 
 misrepresentation, 604, 847 ; for 
 parting with fund after notice of 
 incumbrance, 605 ; and see Con- 
 veyance. 
 LIFE. See Tenant for JAfe. 
 LIEN. See Mortgage (Equitable). 
 c. q. t., of, on property into which 
 trust estate is tortiously con- 
 verted, 756, et seq., 759, 763. 
 not against land properly sold for 
 misapplication of proceeds, 428. 
 Creditor having specific lien, as to 
 proof of debt by, 485. 
 whether he releases by executing 
 trust deed for payment of debts, 
 486. 
 Joint tenant, of, for improvements, 
 
 202. 
 Judgment ci-editor, of, 689, 691. 
 Purchaser with notice of lien, bound 
 
 by, 725. 
 Tenant for life of, who renews for 
 contribution from remainderman, 
 398, 400. 
 Trustee, for expenses, 560. 
 
 who has renewed for improve- 
 ments, 222, see 224; renewal, 
 222. 
 on policy for money advanced for 
 
 premiums, 764. 
 persons employed by trustees have 
 no lien upon trust fund, not- 
 withstanding charges of expen- 
 ses, 101,561 ; and see Solicitor. 
 LIMITATION, 
 Generally, how far, 
 chattels capable of, at law, by will, 
 104 ; as to deed, ib. 
 by way of trust, 104. 
 words of, how far required to 
 create equitable fee under a will 
 or deed, 141. 
 Of suits in Equity. See Mesne 
 Rents and Profits, Statutes of inf. 
 [a) by analogy to statutes, 731, et 
 seq. 
 twenty years an equitable bar by 
 analogy to statute of James, 
 733. _ 
 when time ran as against re- 
 mainderman of equity of re- 
 demption, 733. 
 five years in case of fine by vol- 
 unteer without notice of con- 
 structive trust, 733. 
 notwithstanding distress, igno- 
 rance, mistake, poverty, 733, 
 note (z) ; see 737. 
 secus in case of concealed fraud, 
 734, note (6) ; and see 743, 754, 
 note, and 756, note, 
 how defendants should plead sta- 
 tute, 734 ; and in case of fraud, 
 735. 
 (6) from inconvenience, 739, etseq. ; 
 as to charities, 787, et seq. 
 when parties dead, and vouchers, 
 
 &c., lost, 739; see 741. 
 whether mere lapse of time a bar, 
 739, 741, 742. 
 (c) from laches in application to 
 court, 741, et seq. 
 where alleged fraud, 460, 742 ; 
 accounts between partners, 742. 
 purchase by trustee, or of rever- 
 sion, 470, 741, 742, 776 ; spe- 
 cific performance, 742. 
 where there is a Statute of Limi- 
 tation, 742, 743. 
 {d) from presumption, 735, et seq. ; 
 as to charities, 786 ; corpora- 
 tion, 790. 
 when raised, 735 ; ground of, 736 ; 
 
 favoured in law, ib. 
 raised within twenty years where 
 aidedby evidence, 736; see 224.
 
 I X D E X. 
 
 iSl 
 
 LIMITATIOX, continued. 
 
 secus whei-e rebutted by evidence, 
 
 736 ; see 224. 
 
 waiver and acquiescence distin- 
 guished, 737. 
 not raised in case of ignorance, 
 
 737 ; weakened by distress, ib. 
 not raised against a class as a- 
 
 gaiust individuals, 471, 738, 777. 
 defendant cannot avail himself of 
 by demurrer, 738. 
 Sfaiuteof. 
 Generally, 
 apply as between c. q. t. or trus- 
 tee and stranger, 719, 720. 
 claiming by adverse possession, 
 288, 720, 747 ; see 735, note 
 
 purchaser with notice, 725 ; and 
 see 722, 745 (as to volunteer 
 claiming under trustee, see 
 inf.) 
 
 even where c. q. t. is an infant, 
 720 ; and see 744. 
 
 do not apply as between c. q. t. 
 and trustee in direct or ex- 
 press trusts, 719, 729, 745; 
 see 748, 752 note (1), 7G3, 
 and volunteers claiming under 
 trustee, 745; and see 279, 
 724. _ 
 
 secus in constructive trusts, 
 729; see 733, 74G. 
 charities, whether they apply to, 
 
 786 ; and see 749. 
 debts, how far applicable to trusts, 
 for payment of, 484, 485, 747. 
 
 to charges for payment of debts, 
 746. 
 debts, whether executor liable for 
 
 paying debts barred by, 520. 
 pleaded, how they should be, 734, 
 
 735 ; as to rents and profits, 
 
 751, 754, note. 
 Late statute of, 743 et seq. ; its ef- 
 fect as to, 
 Acquiescence, 743. 
 Arrears of rent &c., six years, 
 744 ; as to pleading statute, 
 see 751, 754, note. 
 
 but in case of express trust c. 
 q. t. may recover all, 748, 
 752, note (1). 
 
 or where subsisting term under 
 which trustee may recover 
 possession, 748, 749. 
 
 as to case of express trustee 
 ignorant of his true charac- 
 ter, see 751. 
 Charities, whether within the Act, 
 
 749, 750, 786. 
 
 Charge, 744, 74G. 
 
 coupled with duty, 746; and see 
 747. 
 Constructive trusts, not saved bv 
 
 section, 25, 746. 
 Disabilities, 744. 
 Disseisor, 747 ; see 288. 
 Dower, arrears of, 755, note. 
 Express Trusts, what are within 
 the Act, 743, 745 et seq. ; and 
 see 748. 
 Fraud, 743, distinguished from 
 mere charge, 746 ; and see 747. 
 Interest, arrears of, 744, 748. 
 Lands, 743, et seq. 
 Legacy, 744. 
 
 Possession, effect of, 744 ; by one 
 
 of several cs. q. t., 748. 
 
 adverse, 747. 
 
 Purchaser, as against, 743, 745. 
 
 under marriage settlement, 745. 
 
 Remainderman, 745 ; see 722, and 
 
 compare, 733. 
 Rents, see Arrears of, sup. 
 Residue or share of, 744, note [x). 
 Volunteer claiming under trustee, 
 745. 
 LIS PENDENS, 
 
 effect of upon powers, 523, 544, 581. 
 
 See Decree, Suit. 
 trustee appointed during, should be 
 sanctioned by court, 544, 582. 
 may during lis pendens solicit dis- 
 charge by petition or motion, 
 583. 
 LOANS, 
 
 trust for, 502. 
 LONG ANNUITIES, 340, 352, 353. 
 where to be converted, 808. 
 when to be enjoyed in specie, 809, 
 
 LORD OF MANOR. See Escheat. 
 infant may give effect to custom. 
 36. 
 LORD CHANCELLOR. See Chan- 
 cellor, 
 LOST, 
 
 where part of trust estate is, how 
 court makes appointment of new 
 trustees, 244. 
 LOTS, 
 
 whether trustee for sale may sell in. 
 423. 
 LUNATIC. See Chancellor, Com- 
 mittee, Trustee Acts. 
 Conversion of his estate made for 
 his own benefit, 825, 826 ; other- 
 wise not ; see 828. 
 real estate sold for payment of 
 
 deb's, 826. 
 timber cut on estate ex parte 
 
 L
 
 782 
 
 LEW IN ON THE LAW OF TRUSTS, ETC. 
 
 LUNATIC, continued. 
 
 paternt, applied to relief of es- 
 tate ex parte maternR, 826. 
 proceeds of, applied to pay debts, 
 redeem land tax, 827. 
 not required, go to next of kin, 
 
 827. 
 so when felled tortiously by 
 stranger, 828, 829. 
 should not be purchased for re- 
 pairs, &c., (to serve committee's 
 interest), where it might be cut, 
 828. 
 personalty applied to bring action 
 of trespass ; to relieve charge 
 on realty ; for improvements ; 
 necessary expenses, e. g. re- 
 pairs ; renewal or admission 
 fines, 827, 828. 
 as to building farm-house, see 827, 
 note (x). 
 Conversion not suffered but where 
 
 clearly for lunatic's benefit, 828. 
 Deed of void, 27 ; feoffment voidable 
 
 by heir, ib. 
 Disability, how remedied where 
 mortgagee, trustee, &c., 832, 895 
 note {m) ; and see TrusteCy inf. 
 Elect, cannot, 816. 
 Fine or recovery by, valid unless 
 
 reversed, 27. 
 Heir of founder of charity lunatic, 
 visitatorial power exercised by 
 crown, 495. 
 Trust declared by, court may set it 
 aside, 27. 
 but would not interfere against 
 purchaser without notice, ib. 
 Trustee, disability of; see Trustee 
 Acts, and 16 & 17 Vict. c. 70; 
 Lunacy Regulation Act, 1853, s. 
 137, et seq. 
 Trustee Relief Act, repayment order- 
 ed to guardians out of lunatic's 
 funds of expenses incurred for his 
 support, 375, note (g), see p. 376. 
 
 MAINTENANCE, 
 
 Assignees in bankruptcy, &c., take 
 
 under trust for maintenance, &c., 
 
 of bankrupt, &c., 133, 134; see 
 
 598. 
 Discretion of trustees, fund applica 
 
 ble at, 542. 
 Infant may be allowed to by execu 
 tor out of interest of legacy, 517 
 
 in what cases out of capital, 517 
 Power of, whether authorized by 
 
 executory trust silent as to powers 
 
 164, note (x). 
 Reference to ascertain whether pro 
 
 per, 697. 
 Trust, for a special trust, 247. 
 MAJORITY, 
 
 of cs. q. t. cannot consent to trus- 
 tee's relinquishment, 565. 
 of co-trustees, 298. See Co-trustees. 
 Transfer directed at their instance 
 under Trustee Relief Amendment 
 Act, 381. 
 of creditors, whether they can sanc- 
 tion purchase by trustee, 464. 
 MANDAMUS, 
 
 to compel admission of trustee to 
 copvholds, 324. 
 MANAGEMENT. See Powers ( Gene- 
 ral). 
 MARRIAGE, ^gq Feme Covert, Feme 
 Sole, Husband. 
 of eldest son justifies destruction of 
 
 contingent remainders, 409. 
 a valuable consideration, 745 ; to 
 whom it extends, 406. 
 MARRIAGE ARTICLES, 
 
 construction of executory trusts in. 
 See Executori/ trusts. 
 MARRIED WOMAN. See Feme Co- 
 vert. 
 MASTER, 
 
 of school trust for finding, 501 ; and 
 see as to salarv, 502. 
 MEETINGHOUSE, 497, 498. 
 MEMBER OF PARLIAMENT, 
 trustee cannot now vote for, 270 ; but 
 c. q. t. mav, ib., and 593. 
 MEMORANDUM. See Writing. 
 
 may prove declaration of trust, 63. 
 MERGER, 
 
 takes place where legal and equitable 
 estates meet, if commensurate, 16, 
 et. seq. 
 MERITORIOUS CONSIDERA- 
 TION. See Consideration. 
 MESNE RENTS AND PROFITS, 
 Account of on equitable title, see 
 752, Note 1, Part I., at commence- 
 ment, 752 ; Part II., 755. 
 Charitable trusts in, extent of, 786, 
 et seq. ; and see 789, for limits 
 adopted, 
 compromise with attorney-gene- 
 ral, 789. 
 how affected by inconvenience, 
 787, et seq.; by mistake of trus- 
 tee, 790 ; in case of parish, 791. 
 Constructive trusts in, 224, 750, et 
 seq.; see 752, note (1). 
 prima facie from time when rents 
 intercepted, 751, note [y); and 
 756, note, 
 exception 1, if statute pleaded, 
 only for six years, 751.
 
 I N D E X. 
 
 783 
 
 MESNE RENTS AND PROFITS, 
 
 contirmcd. 
 
 2, where defendant has no no- 
 tice of plaintiff's title, only 
 from filing of bill, 751, though 
 plaintiff an infant (see 554, 
 555, notes), or defendant, (in 
 fact) express trustee, 751. 
 
 3, where plaintiff guilty of laches 
 
 only from filing of bill, 751. 
 or from decree in great laches, 
 752. 
 Express trusts in, from time when 
 rents were withdrawn, 752, note 
 1, 748. 
 secus where trustee ignorant of 
 his true character, 751 ; and see 
 Charitable trusts, sup. 
 Form of order to account, 752. 
 Person to account in first instance, 
 assignee but without interest, 
 752. 
 if assignee insolvent, trustee per- 
 sonally liable, 752. 
 Purchase by trustee for sale on, 466. 
 Relief bill for, followed by bill for 
 
 account, 752. 
 Renewal of lease by trustee, &c., on, 
 224. 
 (a) on legal title where account 
 independent of other relief, 
 cannot be had in equity except 
 where account complicated, 
 plaintiff infant, or in case of 
 mines or tithes, 753, note ; 
 qu. after death of person an 
 account of assets, ib. ; qu. 
 timber, ib. ; if had in equity, 
 is confined to legal limit, 754, 
 note, 
 where former legal remedy has 
 expired equity will not assist, 
 754, note ; except where de- 
 fendant at fault, 755, note ; 
 or fraud or mistake, 754, note. 
 {h) on legal title where account is 
 incident to other relief, 
 cannot be had in equity, 755, 
 note; unless plaintiff dowress 
 or infant, ib.; or where plain- 
 tiff applies to equity to aid 
 action at law, he may come 
 back for account, ib. ; or be- 
 ing obliged to come to equity 
 on one ground and to avoid 
 circuity, ib. 
 if had in equity, is confined to 
 
 legal limit, 756, note, 
 unless where defendant guilty 
 of concealment, fraud, or mis- 
 representation, ib. 
 
 but if plaintifit' guilty of lache? 
 confined to filing of bill, ib. 
 MILL. Suit to, 505. 
 MINES, 
 
 account of profits of, may be sought 
 
 on legal title in equity, 753, note. 
 
 MINING LEASE. See 504, Leasing, 
 
 potoer of. 
 MINISTER. See Chapel. 
 MINISTERIAL, or instrumental 
 
 trusts, 21. 
 MISCONDUCT of trustee ground for 
 appointment of receiver, 870,871- 
 fixing him with costs ; see Costs. 
 for his removal, 711. 
 MISREPRESENTATIONS. See 
 Fratid. 
 Liability of trustee for making frau- 
 dulent, 847 ; to purchaser of equi- 
 table interest, 604 ; making as to 
 accounts, &c., 877. 
 Defendant by, where plaintiff kept 
 out of estate by, account of rents 
 from accruer of title, 756, note. 
 MISTAKE, 
 
 Grantee does not take beneficially, 
 
 where mistake of grantor, 178. 
 Ground, for refusing accounts of 
 mesne rents, &c., against trus- 
 tees for charities, 790. 
 for seeking account of rents in 
 equity upon legal title, 754, 
 note. 
 Presumption of release, mistake re- 
 buts, 737. 
 Settlement rectified where mistake. 
 
 148, note {h). 
 Statutory bar, mistake does not pre- 
 vent from running in equity, 733 ; 
 but see note (z). 
 Trustee by mistake as to rights oi 
 parties is at his own expense, 
 365. 
 investing in bank stock instead of 
 
 bank annuities, 342. 
 person assuming office of, by mis- 
 take, accountable as trustee, 
 244, 765. 
 MIXTURE OF TRUST AND 
 POWER, 22. 
 distinguished from trust to which 
 power is annexed, ib., and see 526. 
 MONEY, See BesuUing trust. 
 At home, 800, 804; see 823. 
 Bills and notes, distinction between 
 
 and money, 758. 
 Deposited, may be in bank to trust 
 
 account, 296. 
 Distributed, how it may be to cre- 
 ditors by assignees, 294 ; and see 
 Distribution.
 
 784 
 
 LEW IN ON THE LAAV OF TRUSTS, ETC. 
 
 MONEY, continued. ' 
 
 Earmarked, when, Y57, 758 ; see 
 
 275. 
 Followed in equity, where, 757, et 
 seq. ; mixed with trustees' money, 
 759 ; paid into bank to account of 
 trustee, 760 ; into land even by 
 parol, 206, 762. 
 Land, money to be laid out in, 
 treated as land. See Conver- 
 sion^ c. q. t. may elect to take 
 as money, 598 ; see Election. 
 results on failure of purpose to 
 executor for next of kin, 187. 
 Transmitted, may be through a 
 
 bank, &c., 295. 
 Trust to raise, is a special trust, 
 247, and see Legal Estate. 
 MORTGAGE. See Demerara, Equity 
 of Redemption, Mortgagee, Mort- 
 gagor, Renewable Leaseholds. 
 Assets, may be left outstanding on, 
 
 by executor, 329. 
 Conversion of, into 31. per cent, whe- 
 ther required where successive 
 estates, 354. 
 Costs, dower trustee of mortgagor 
 not entitled to, against mortgagee, 
 872. 
 Devise mortgage in fee passes under 
 
 " Securities '' for money, 264. 
 Executor or administrator may, 
 make of personal estate, 453. 
 M'ith power of sale, 454. 
 Equitable, as to lands in Scotland, 
 48. 
 overrides subsequent judgment, 
 280, note {;/). 
 Infant's realty of, whether relieved 
 
 by his personalty, 830. 
 Investment on. See Livestment 
 (real securities), in case of ac- 
 cumulations from charity es- 
 tate, 504, 505. 
 as to value of security, &c. See 
 
 345, 349, 350, 351, 358. 
 whether trustees can release part 
 
 of security, 521. 
 trust how kept out of sight on, or 
 on transfer, 346, 347. 
 Judgment creditor, may redeem, 
 650 ; as to tacking, 660. 
 his right against entirety of equity 
 of redemption, 660, 661. 
 against surplus proceeds under 
 power of sale in, 656. 
 Limitation, Statute of, where equity 
 of redemption barred by time, 
 733. 
 Lunatic's realty, relieved, of by his 
 personalty, 827. 
 
 Paid off, the heir of mortgagee is 
 trustee for mortgagor who may 
 present petition for re-conveyance, 
 836, note [x). 
 Power of sale in, who are assigns 
 within meaning of, 420, 529. 
 530. 
 mortgagee may exercise without 
 mortgagor's concurrence, 427. 
 exercising covenants against his 
 
 own acts only, 425. 
 mortgagor whether, he can re- 
 strain sale under, 422. 
 surplus under is real or personal 
 estate of mortgagor according 
 as sale takes place before or 
 after his death, 808. 
 survives, 419. 
 Reconvey, by what description mort- 
 gagee should, 595. See Paid Off, 
 sup. 
 Suit for foreclosure or redemption 
 necessary parties to, 842, 855, 
 856. 
 Tacking. See 660, 662. _ 
 Tenancy in common, implied in 
 equity, on joint advance on, 201 : 
 see 202. 
 Trust to, will not authorize sale, 417; 
 survives, 419. 
 to sell whether it authorizes mort- 
 gage, 416. 
 whether included in the word 
 " trust," under Lord St. Leon- 
 ard's Trustee xVct, 836, note (x) ; 
 see 882. 
 Trustees. See Assets, Investment, 
 sup. 
 MORTGAGEE. See Equity of Re- 
 demption, Mortgage, Mortgagor. 
 Agent, &c., he may employ, 556. 
 Charge, whether he may buy in for 
 his own benefit, 319, note (s). 
 he cannot, for insurance in absence 
 of stipulation, 516. 
 Disability of. See Trustee Acts. 
 Equity of Redemption, in fee, he 
 takes (subject to mortgagor's 
 debts), where mortgagor dies in- 
 testate without heirs, 322, 679. 
 Fee in, heir of, trustee for mortga- 
 gor, after mortgage paid off, 
 836, note [x). 
 he and his heirs, trustee for him- 
 self and his executors, 17, and 
 see 799. 
 so where foreclosure, or release 
 after his death, 18, and see 
 note (1). 
 infant, &c,, 835. See Tnisicc 
 Acts.
 
 I N D E X. 
 
 785 
 
 MORTGAGEE, contlmted. 
 
 Judgments against, 657, note {f). 
 Proof by, in administration suit, 
 bankruptcy or trust for creditors, 
 485. 
 Purchase, he may from mortgagor, 
 
 465. 
 Renewal of lease by, 218 ; see 221. 
 Sale by. See Mortgage (Power of 
 
 sale). 
 Trustee, how far a mortgagee is to 
 be so considered, 318, 516. 
 MORTGAGOR, 
 
 Fee in dying without heirs and intes- 
 tate, 322, 679. 
 heir of, may require exoneration 
 out of personalty, 799 ; but see 
 Mortgage (Power of Sale), and 
 17 & 18 Vict. c. 113. 
 Notice with, of trust, should see to 
 
 application of trust money, 365. 
 Trustee for sale, under Lord St. 
 Leonards' Trustee Act, where 
 equitable mortgagee has obtained 
 decree for sale, 83G, note {x), 837, 
 note ( /'). 
 MORTMAIN, 
 
 Accumulations from charity estate, 
 whether they may be invested (1) 
 in purchase of land, 504, (2) on 
 mortgage, 504, 505. See Charity 
 Co mm iss ioners. 
 Charity trusts, of realty for, what 
 formalities required for creating, 
 132. 
 Defendant bound to answer whether 
 legal estate devised to him on se- 
 cret trust for, 71, 73. 
 Devise upon trust to sell and pay 
 part of proceeds to charity, how 
 far avoided by, 182, note (t). 
 upon secret trusts for, whether 
 void at law, or only in equity, 
 78 et seq. 
 Legacy to charity, charged on realty, 
 192 et seq. ; see 195, note (x). 
 MURDER. See Attainder. 
 
 NATURALIZATION, 
 
 act of, see 39, and note. 
 NEGLECT, 
 
 of trustee, as to calling in estate, 
 328 ; costs of trustees in case of, 
 876 ; investment, 337 ; legal pro- 
 ceedings, cause of, 558 ; to pay 
 premiums, enforce transfer, 764 ; 
 see 766. 
 NEPHEW, 
 
 advancement for presumed, 216. 
 
 covenant to stand seised extends to, 
 96. 
 
 NEW TRUST, 
 
 created without intervention of new 
 trustees, 91. 
 NEW TRUSTEES, 
 
 Court of Chancery, appointment by. 
 See Trustee Act, s. 32 ; Trustee 
 Extension Act, s. 9. 
 application for, under Lord St. Leo- 
 nards' Trustee Act, 713, 834, et 
 seq. 
 under Trustee Act, 714 ; see Trus- 
 tee Act, ss. 32, 37, 43, App. 
 under Bankruptcy Act, 714,et seq. 
 in case of charitable trusts, 716, 
 718, and note [h). 
 charity corporation, 716, 717. 
 appointed by court, cannot exercise 
 arbitrary powers, &c., 712 ; but 
 as to receipts, see 450. 
 court will not give to, power of 
 appointing other trustees, 713 ; 
 and see Trustee Act, s. 33. 
 how satisfied as to fitness of pro- 
 posed, 712, 715, 895, note [p) ; 
 and see 583. 
 appointment of by court, c. xxv., s. 
 1, p. 710. 
 where no trustee, or not proper 
 
 number, &c., 710. 
 on bankruptcy, &c., death, mar- 
 riage (of feme trustee), miscon- 
 duct, opinions (of charity trus- 
 tees), refusal to act, residence 
 abroad, &c., 710, 711, and note 
 
 (^)' . ,., 
 
 where power to appomt which 
 
 cannot be exercised, 713. 
 not from mere caprice of c. q. t., 
 or misunderstanding of duty by 
 trustee, 712, 
 c. q. t. in remainder may apply 
 for, 710. 
 Generally, 
 
 breach of trust trustee should not 
 retire in favour of one who in- 
 tends to commit, 580. 
 charity where endowment does not 
 
 provide for appointment, 408. 
 costs of appointment payable out 
 of corpus, 582 ; and see Trus- 
 tee Act, 1850, s. 51. 
 if no fund, then often paid by 
 tenant for life, ib. ; and see 
 584. 
 case of trustee removed for mis- 
 conduct, 711. 
 directory power to appoint when 
 trustees reduced to given num- 
 ber, 527, 580. 
 impartial, exercise of power should 
 be, 574.
 
 786 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 NEW TRUSTEES, continued. 
 
 ineffectual attempts to exercise, 
 
 powers of old trustees remain, 
 
 581 ; and see 570. 
 legal estate transferred without 
 
 conveyance on appointment by 
 
 courtoftrustees for charity, 717; 
 
 and see Vesting Order. 
 lis pendens, after decree trustees 
 
 should not exercise power with- 
 out sanction of court, 544, 581 ; 
 
 see 582. 
 lost, when part of trust estate is, 
 
 how court appoints, 244. 
 powers, what exercisable by trus- 
 tee appointed under power, 533; 
 
 appointed by court ; see Court, 
 
 sup. 
 severance of estate from powers, 
 
 535 ; of trusteeship relating to 
 
 several estates, whether proper, 
 
 579, 
 tenant for life who has sold or 
 
 mortgaged his estate, whether 
 
 he can exercise, 580. 
 Number to be appointed ; see 40, 41. 
 court does not limit itself to original 
 
 number, 575 ; see 895, note [p). 
 two trustees retiring, appointment 
 
 of single successor improper, 
 
 574. 
 one of two retiring, appointment of 
 
 co-trustee sole trustee improper, 
 
 577. 
 appointment of one in place of 
 
 several improper, 577. 
 cases in which such appointment 
 
 has been supported, ib. 
 single trustee retiring should not 
 
 appoint two successors, 574 ; 
 
 unless authorized, 575, 576. 
 Persons proper for ofSce. See T^-us- 
 
 tee (who may be), 
 should be within jurisdiction, 40, 
 
 576, 577 ; see 574, 710. 
 0. q. t. or near relative undesirable, 
 
 40, 579 ; c. q. t. sometimes ap- 
 pointed by court, 579. 
 fitness of, how shown, 712, 715, 
 
 895, note [p). 
 Power to appoint, usual form of and 
 
 suggested additions, 5G6. 
 («) Construction of, 
 "acting," 571, 578, and see 415, 
 449, 612 ; " incapable to act," 
 does not extend to bankrupt- 
 cy, and qu. whether to resi- 
 dence abroad, 574 ; " refusing 
 or declining," includes " dis- 
 claiming," 571; or retiring 
 after having acted, 572 ; " re- 
 
 fusing or declining or other," 
 578; " survivor," 570; "un- 
 fit," extends to bankruptcy 
 and semble to residence 
 abroad, 574; and see 710, 711. 
 trustee surviving testator may 
 appoint new trustee in place 
 of one who predeceased testa- 
 tor, 572. 
 power for tenant for life with 
 consent of " surviving, con- 
 tinuing, or acting trustee "' to 
 appoint, how construed, 573. 
 (6) Mode of appointing under, 
 where power to surviving or con- 
 tinuing trustees or trustee, 
 and both, or the survivor, are 
 to retire, two appointments 
 usual, 578. 
 secus, where power to surviving 
 continuing or other trustee, 
 578. 
 mode of vesting trust estate in 
 
 new trustees, 568. 
 as to money in funds, «fcc., 
 
 568; see App. IV. 
 chattels real, &c., 568 ; see 
 
 App. V. 
 freeholds, 568, 569 ; see App. 
 VI., VII., VIII. 
 whether necessary to complete 
 appointment, 567, 568. 
 ((•) Trustee should see that power 
 contemplates precise case, 570, 
 581. 
 NEXT OF KIN, 
 
 c. q. t. dying intestate without leav- 
 ing, 198. 
 Construed "nearest of kin," 707. 
 Entitled to undisposed interest of 
 money to be laid out on land, 
 187. See Resulting trusts. 
 but not to undisposed proceeds of 
 sale of land. See Residuary 
 Legatee, 183, 197. 
 NOTES, 
 
 may be followed in equity, 757, 758. 
 
 See Bank Notes. 
 
 NOTICE. See Purchaser, Volunteer, 
 
 Assignee of equitable interest by, 
 
 604 ; its effect, 92 ; see 280, note (y). 
 
 How given to trustees, 605 ; and see 
 
 611, 612. 
 
 to one of several trustees good 
 
 during his life, 609. 
 not after his death, 610. 
 to all trustees and all dying, 611. 
 timeof giving, 612 ; and to whom 
 (written or unwritten) it should 
 be given, 612 ; and what it 
 should state, 613.
 
 INDEX. 
 
 787 
 
 NOTICE, continued. 
 
 where trust fund consists of share 
 in company, 612. 
 fund in court, 613, 614. See 
 Stop Order. 
 Priority of charge from priority of 
 notice, 605. 
 as against assignees in bankruptcy 
 in case of choses in action, 607. 
 whether doctrine applies to real 
 
 estate, 605, 606. 
 whether second incumbrancer giv- 
 ing notice, but without making 
 inquiries, preferred, 608. 
 want of, whether an objection to 
 title, 612. 
 Purchaser, with or without. See 
 Purchaser. 
 to one purchasing from executor, 
 that debts are not paid, 357. 
 Recitals presumed from, 224. 
 Solicitor, implied notice by employ- 
 ing, 358. 
 Trustee of equitable interest should 
 give to holder of legal estate, 
 327. 
 to, of paramount title, 325. 
 Voluntary assignment of equitable 
 interest, whether it requires notice, 
 92, 280, note (?/). 
 Will of, notice of its contents, 454, 
 see 457. 
 NUMBER OF TRUSTEES, 710. 
 See Co-trustees, Keiv trustees. _ 
 only four allowed of bank annuities, 
 
 except in special cases, 41. 
 what is proper, 40 ; and see 574, et 
 seq., 577. 
 NUMEROUS, 
 
 cs. q. t., when some may sue or de- 
 fend for all, 851, 852. 
 
 OFFICE, 
 
 of trustee, its general properties, c. 
 XII., p. 289. 
 OPERATION OF LAW, 
 
 Trusts by, distinguished _ from im- 
 plied and constructive trusts, 
 140, note (1). 
 how affected by Statute of Frauds, 
 
 228. 
 constructive trusts ; see Construc- 
 tive trusts. 
 intention from, expressed or pre- 
 sumed, that grantee or_ devisee 
 should not take beneficial inter- 
 est, c. VIII. s. 1, p. 176 ; and see 
 Resulting trust. 
 purchases in names of third per- 
 sons upon, c. VIII. s. 2, p. 199 ; 
 and see Residting trust. 
 
 OPINION. See Counsel. 
 
 Charity commissioners of, its indem- 
 nity, 785. 
 trustees of chapel holding, contrary 
 to those of founder, 497, 499, 711. 
 OPTION, 
 
 to purchase whether exercise of ef- 
 fects retrospective conversion, 808, 
 and see note {p). 
 ORDER AND DISPOSITION, 277. 
 
 See 594 
 " ORDERING AND DIRECTING," 
 
 may raise a trust, 168. 
 ORPHANAGE SHARE, 
 
 money to be laid out on land in fa- 
 vour of child formerly not brought 
 into hotchpot, 797 ; see note (w). 
 OURLAWRY, 28. See Forfeiture; 
 
 of trustee, 287. 
 OVEY-PAYMENT, 
 
 by trustee, 373 ; and see 376, note 
 {t). 
 OVERSEERS AND CHURCHWAR- 
 DENS, 
 how they hold property by parlia- 
 mentary succession under 59 
 Geo. 3, c. 12, s. 17, 106. 
 not as corporation having common 
 seal, 106. 
 Act extends to freeholds and chat- 
 tels real, 106. 
 if held on trust exclusively paro- 
 chial, 107; not otherwise, 106. 
 not to copyholds, 106 ; nor to land 
 vested in existing trustees, 106. 
 
 PAPISTRY ACTS. See 137. 
 
 purchase in contravention of, does 
 not raise resulting trust, 203. 
 PARAMOUNT, 
 
 title to trusts, notice of to trustee, 
 325. 
 PARCELS, 
 
 by what description trustee should 
 
 convey, 595. 
 whether trustee can be required to 
 divest himself of trust estate in, ib. 
 PARENT, 
 
 cannot urge meritorious considera- 
 tion against child, 95, note (/). 
 PARISHIONERS, 
 
 Acquiescence, whether bound by, 
 
 777. 
 Advowson trust of, enforced for by 
 bill, not information, 107, and see 
 note {y). 
 Breach of trust by, retrospective ac- 
 count not ordered upon, 791. _ 
 Clerk, election of, prima facie in 
 trustees, 107 ; when in parish- 
 ioners, 108.
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 PARISHIONERS, continued. 
 
 meaning of " parishioners and in- 
 habitants," 108; of " chiefest 
 and discreetest," ib. ; of " rate- 
 payers," 109. 
 Yestry not usually the representa- 
 tive of a parish for an election, 
 109. 
 votes, whether women, children, 
 and servants entitled to, 108. 
 PARLIAMENT. See Index of Sta- 
 tutes; Member of Parliament. 
 Act of, necessary for total alteration 
 
 of scheme of charity, 499. 
 Resulting trust not implied in eva- 
 sion of, 203. 
 PAROL EVIDENCE. See Aver- 
 meid. 
 Acceptance of trust, admissible on 
 
 question of, 243. 
 Advancement, how far it may prove 
 or rebut presumption of, 214, 215. 
 Crown not admitted to prove decla- 
 ration of trust by, 24. See Pen- 
 sion. 
 Disclaimer, whether it may be by, 
 
 236. See 234, 235. 
 Election, whether it is sufficient to 
 
 express, 824. 
 Executors, how far admitted against 
 title of executors to residue, 59. 
 See Executor. 
 Investment of trust money on land, 
 
 admissible to prove, 206, 762. 
 Purchase with another's money, ad- 
 missible to prove, 204. 
 how far on purchase by agents, ib. 
 Resulting trustnot rebutted by, when 
 devisee or grantee is expressly 
 made trustee, G8, 182. 
 secus if arising from mere pre- 
 sumption, 181. 
 on purchase in name of stranger 
 may be rebutted by, 206. See 
 Residting trust. 
 whether admissible against defen- 
 dant's denial by answer, 205 ; 
 whether after his death, 205, 
 206. 
 Trust is inadmissible to prove, since 
 Statute of Frauds, 178 ; see 60, 
 62, 65, 600. 
 (where admissible to rebut, 181, 
 205, 206,214,215.) 
 secus in case of chattels personal, 
 61 ; but in case of a will, see Q&. 
 PARTIES, 
 
 In suits respecting trusts, c. xxix. 
 
 s. 1, p. 841. 
 Generally. 
 General practice, 841, et seq. 
 
 under 30th order of 26th Aug. 
 1841, where trustees under de- 
 vise may represent cs. q. t., 852. 
 853. 
 under 32nd order of 26th Aug. 
 1841, as to plaintifFhaving joint 
 and several demand, 853, 854. 
 under Chancery Amendment Act, 
 rules of, s. 42, 854, 855. 
 where, under rule 9, trustees 
 
 may represent cs. q. t., 855. 
 under s. 47, as to real estate in 
 trustees by devise, 856, note 
 (m). 
 under s. 51, court may adjudi- 
 cate in presence of some only 
 of parties intei'ested, as to 
 portion only of trust estate, 
 and without taking accounts, 
 856 ; and see 865. 
 under Trustee Relief Acts. See 
 Trustee Relief Acts. 
 Bank. As to making the bank a 
 
 party, 33, note (»), 859. 
 Order and manner in which trustees 
 and cs. q. t. ought to appear on 
 the record as plaintiffs or defen- 
 dants, c. XXIX. s. 2, p. 856. 
 Trustee iu suit for determining equi- 
 ties, should see that proper par- 
 ties are before court, 368. 
 Suits between Parties interested, inter 
 se under trust, 845. 
 
 (a) As to cs. q. t., general rule ; all 
 
 cs. q. t. necessary, 845, 849. 
 c. q. t. abroad, how suit may pro- 
 ceed, 849. 
 
 entitled to aliquot share of ascer- 
 tained fund, whether other cs. 
 q. t. necessary, 850. 
 
 having assigned his interest un- 
 necessary, ib. 
 
 cs. q. t., numerous, where some 
 may sue or defend for all, 851. 
 
 c. q. t. standing out process, how 
 suit may proceed, 850. 
 
 suit by trustee to recover funds, 
 cs. q. t. unnecessary, 851, 852. 
 recent variations in practice, whe- 
 ther 30th order of 26th Aug. 
 1841, applies, 853. 
 
 as to rules of Chancery Amend- 
 ment Act, s. 42, and particu- 
 larly rule 8, see 854, 855. 
 
 [b) As to co-trustees, general rule : 
 
 all co-trustees necessary, 845. 
 even though future suit necessary 
 to adjust equities between co- 
 trustees, 845, 846 ; see 768 ; or 
 though co-trustee insolvent, 848 ; 
 trustee becoming bankrupt, 854 ;
 
 INDEX. 
 
 789 
 
 PARTIES, cont'imied. 
 
 so third party, who by reaping 
 benefit of trust becomes quasi 
 co-trustee, 846 ; see 768, 771. 
 exceptions : 
 
 purchaser without notice, 846 ; or 
 stranger dealing with trust fund 
 without notice, and who has 
 parted with fund, 846 5 trustee 
 of outstanding term or mere 
 equity, 848. 
 trustee who is mere agent, and 
 whose authority revocable un- 
 necessary, 848 ; so trustee who 
 has assigned to new trustees, 
 848 ; or who has disclaimed, 
 847 ; trustee of mere equity or 
 outstanding term, 848. 
 trustee guilty of fraudulent or 
 wrongful act, co-trustees not 
 necessary parties, 846, 847 ; e. 
 g. in case of corporators' com- 
 pany, 847. 
 representative of deceased co-trus- 
 tee, whether necessary, when 
 co-trustee insolvent, 847 ; no 
 party to breach of trust, 849 ; 
 and comp. 853 ; not personally 
 charged by bill, 849 ; relief 
 waived, 847, but see 854. 
 trustee out of jurisdiction, or who 
 cannot be found, how suit may 
 proceed, 847, see 900. 
 where two classes of trustees, 849. 
 Suits by or against Strangers. 
 General rule, all cs. q. t. and trus- 
 tees necessary, 841 et seq. ; for 
 modifications of rule, see 852, et 
 seq. 
 Assignees of bankrupt, &c., sue or 
 are sued without presence of credi- 
 tors, 843. 
 Creditors. See Eeal Estate, inf. 
 Marriage articles, specific perfor- 
 mance of, 844 ; and see Settle- 
 ment, inf. 
 Mortgagee foreclosing, 
 
 mortgage to A. in trust for B., A. 
 
 necessary, 841. 
 
 cs. q. t. interested in mortgage or 
 
 equity of redemption, whether 
 
 necessary, 842 ; andseenow855. 
 
 Mortgagor redeeming, 842 ; see now, 
 
 855. 
 Real estate in trustees for payment 
 of debts, &c., whether cs. q. t. ne- 
 cessary, 843. 
 whether persons having specific 
 
 charges on, 843. 
 under s. 42, rule 9, of Ch. Am. Act, 
 855 ; as to devise and effect of 
 
 (1) 30th order of Aug. 1841, 
 see 852 ; (2) Ch. Am. Act, s. 47, 
 see 856. 
 Representative specially constituted 
 for all purposes, c. q. t. unnecessa- 
 ry, 844. 
 Settlement setting aside, cs. q. t. 
 necessary, 855. See Marriage 
 Articles, sup. 
 Specific performance, 
 
 if trustees contract as principals, 
 cs. q. t. unnecessary, 844. 
 if as agents, principals are ne- 
 cessary, ib. 
 contract to convey to A. in trust 
 for B., A. necessary, 842. 
 Term, trustee of, in annuity deed, 
 when necessary, 842 ; see 848. 
 PARTITION. See Ireland. 
 
 cases of, excepted from Lord St. Leo- 
 nard's Trustee Act, 339 ; see now, 
 894, note (e). 
 whether powers to ''sell," "to sell 
 and exchange," authorize, 417. 
 PARTNER, 
 
 Accounts by partners against estate 
 of deceased partner when barred 
 by laches, 742. 
 Jus accresceudi, excluded, 202. 
 Payment by trustees to, 373. 
 Renewing a lease is trustee for part- 
 nership, 218. 
 PAYMENT. See Receipts. 
 Assignees, by 294. 
 Bank, into, to account of trust, 296 ; 
 where co-trustees, to their joint 
 account, 330. 
 Instalments by, directions as to 
 under Trustee Relief Act, 375, 
 note (2), p. 376. 
 Legatee, when he may claim pay- 
 ment of legacy to buy annuity, or 
 when accumulation directed, 597. 
 Trustee by, to agent, 372 ; comp., 
 294. 
 husband of feme covert, 627 ; in- 
 fant, 372 ; partner, 373. 
 Trust money or charity of, to official 
 trustees, 382. 
 PAYMENT INTO COURT, 
 Compulsory. 
 At the hearing, where made though 
 
 not on motion, 868. 
 On motion, must be founded on ad- 
 missions in answer, 865, 866, 
 
 note («)• 
 butpayments mentioned in answer 
 
 may be verified by affidavit, 867. 
 answer must contain admission of 
 
 plaintiff's title or probable title, 
 
 866.
 
 790 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 PAYMENT INTO COURT, continu- 
 ed. 
 
 and this, upon the equity alleged 
 by bill, sufficient, if defendant 
 admits that he once received 
 the money and has parted with 
 it improperly, 8G6, 867. 
 or that he is debtor to trust estate, 
 
 868. 
 admission that he made interest 
 
 amounts to receipt, 867. 
 but generally not ordered on ad- 
 missions from which liability 
 merely inferred, 867. 
 notice of, on whom it must be 
 served, 865. 
 Parties, what must be before court, 
 
 864, 865. 
 Rise of stock where purchase money 
 paid into court and invested, 467. 
 Share of fund when it may be ordered 
 
 into court, 865. 
 Title sufficient if plaintififhave a par- 
 tial title, 864 ; and he may move 
 on a possible title if all parties be- 
 fore the court, 865 ; see 868. 
 Under Trustee Relief Acts. See Tms- 
 tee Relief Acts, p. .^.75, et seq. 
 "PAY THE RENTS," 
 trust to, not within the Statute of 
 Uses, 247, 248 ; and see 252. 
 "PAY UNTO, OR PERMIT AND 
 SUFFER TO RECEIVE," 
 whether within the Statute of Uses, 
 249. 
 PENSION, 
 
 from crown to A., trust cannot be 
 raised by parol for B., 57. 
 "PER, 
 assign in the," meaning of expres- 
 sion, 279. 
 PERFECT, 
 
 trust where under voluntary assu- 
 rance,81, etseq. ; see Voluntary 
 Assurance. 
 once created not subsequently de- 
 feasible 99. 
 PERISHABLE PROPERTY. See 
 
 Wasting Property ; and 594. 
 PERJURY, 205. 
 
 "PERMIT AND SUFFER A. TO 
 RECEIVE RENTS," 
 within the Statute of Uses, 248. 
 PERPETUITY, 
 
 cannot be obtained through medium 
 
 of a trust, 103, 111, 132. 
 trust for accumulation must not lead 
 to 110, et seq, 
 PERSONAL, 
 
 Contract with A., B., and C. jointly, 
 eflect of disclaimer by A., 237. 
 
 Estate of testator must, properly 
 speaking, be such at his decease, 
 196. 
 gift of, will not pass undisposed of 
 
 proceeds of sale of lands, ib. 
 unless proceeds directed to be ta- 
 ken as personal estate, ib. 
 or intention collected from will 
 
 specially worded, ib. 
 secus where testator himself enti- 
 tled to money, 807. 
 how far intention gathered from 
 blending real and personal es- 
 tate, 196 ; and see 183. 
 Incapacity. See Feme Covert, In- 
 fant, Incapacity, Lunatic, Trustee 
 Acts. 
 Representative oftrustee,billagainst. 
 for trustee's breach of trust, 765 ; 
 and see Parties, 3. 
 entitled to proceeds of real estate 
 to be converted, 807. 
 Security, assets must not be left out- 
 standing upon, 328. See Invest- 
 ment. 
 PETITION, 
 
 Lord St. Leonards' Trustee Act, un- 
 der, 839 ; as to service of, see 
 837, note (a). 
 Of right, whether open to the subject 
 
 where the crown is trustee, 31. 
 Restraining order, for 860, 863. 
 Romillv's Act, under, 780, et seq. ; 
 
 see 782, 783. 
 Stop order for, 614, note (I). 
 Trustee acts, under, 896, note [t) : 
 
 897, note {v) ; 903, note (c). 
 Trustee Relief Act, under, 378, note 
 {>l) ; 380 note {a) ; 381, note (6). 
 PIN-MONEY, 
 
 arrears of, whether recoverable, 644, 
 and note [t] ; and see Feme Co- 
 vert. 
 PLEADING, 
 
 Frauds, Statute of, whether it must 
 
 be pleaded, 62. See 137, 138. 
 Limitations, statute of, how defend- 
 ant avails himself of, 734, 735. 
 as to accounts of mesne rents, &c., 
 751, 754, note. 
 Presumption in matters of, 738. 
 POLICY OF INSURANCE. See 
 
 Insurance. 
 POOR OF A PARISH, 
 
 Limitation to, void at law, 44, 105, 
 
 and see 836, note {w). 
 Trust for, good, 105; applied to edu- 
 cation of, 501. 
 who take under such trust, 105 ; 
 see note (k) ; and see Parish- 
 ioners.
 
 INDEX, 
 
 roi 
 
 POOR OR NECESSITOUS RELA- 
 TIONS, 
 
 Gift to, how construed, G98, note (1). 
 Power of distribution amongst, how 
 construed, 698. 
 PORTIONS, 
 
 Power to charge not authorized in 
 executory trusts by " usual pow- 
 ers," 165. 
 Time of raising, by trustee, 420 ; see 
 430. 
 POSSESSIO FRATRIS, 
 
 of a trust, 618, 680. 
 POSSESSION, 
 
 c. q. t. of, when a bar to Statute of 
 Limitations, 744, 748. 
 where entitled as to chattels, 593 ; 
 
 as to lands, 585, et seq. 
 his right recognized in equity only, 
 591. 
 Transmutation of, where necessary 
 to the creation of a trust, 81 ; and 
 see Voluntary Assurance. 
 Trustee for sale should not give up, 
 before payment of purchase mo- 
 ney, 424 ; whether receiver ap- 
 pointed if he do so, 871 ; comp., 
 351. 
 POSSIBILITY, 
 
 in a trust assignable, 12, 600. 
 "POST, 
 
 assign in the," meaning of expres- 
 sion, 279. 
 POVERTY, 
 
 Laches, whether it will excuse, 471. 
 Presumption of release of right, its 
 
 effect as to, see 737. 
 Statutory bar, it does not prevent 
 
 from running in equity, 733. 
 Trustee of, whether ground for ap- 
 pointing receiver, 870, 871. 
 POWERS. See Appointed; Appoin- 
 tees ; Appointment ; Neio trus- 
 tees ; Feme Covert; Infant; Uses. 
 Arbitrary, 526, 538, 694 ; and see 
 
 Court, Survivo?'s?iip, inf. 
 Assignment of estate, its effect on 
 powers, mere conveyance of 
 estate will not carry powers, 
 533. 
 new trustees appointed under a 
 power take powers, 533. 
 appointed by court, whether 
 they take special discretion- 
 ary powers, 533 ; see 450. 
 they cannot exercise such legal 
 powers as are unassignable, 
 712. 
 whether power will remain In trus- 
 tee after alienation of estate, 
 534. 
 
 court may sanction severance of 
 estate from power, 535. 
 Bare powers, and powers coupled 
 
 with trust, distinguished, 526, 695; 
 
 and see 22, 701. 
 Construction of powers, 527, et seq. 
 
 to A. and his assigns, 529; to sell 
 in mortgage, ib. 
 
 to trustee and his executors, 530 ; 
 to A. and B. and their heirs, 
 527 ; to trustees and the survi- 
 vors of them, 531, and see note 
 (iv) ; to trustees and survivor of 
 them, 531, and see note [x) ; to 
 executors, sons-in-law, trustees, 
 trustees for the time being, 530 ; 
 during continuance of the trust, 
 531, 532, and see note (2). 
 Court, its control over powers, 538, 
 et seq. See Imperative, inf. 
 
 (a) court cannot interfere with 
 mere discretionary powers, 
 538, et seq. 
 
 e. g. to advance legacy, 538 ; 
 to approve A.'s conduct, 540 ; 
 to pay annuity, 539 ; to pur- 
 chase leaseholds, 541, but see 
 542 ; to sell at request, 540 ; 
 to treat with creditors, 541. 
 nor where trust imperative, 
 but mode of exercising it 
 discretionary, 542. 
 
 e. g. maintenance of children 
 at trustees' discretion ; dis- 
 tribution of fund among tes- 
 tator's relatives ; selection of 
 objects of charity, ib. 
 
 whether trustees should state 
 reasons for their choice, 543 ; 
 see 542. 
 
 [b) court will interfere where fraud, 
 
 misbehavioui', or trustees de- 
 cline to exercise discretion, 
 543. 
 e. g. upon improper investment 
 or improper leases, ib. 
 Decree in suit paralyses trustees' 
 powers, 524, 544. 
 seeus as to mere institution of 
 suit, 524. 
 Delegation of discretionary trusts 
 
 not permitted, 296 ; see 449. 
 Directory explained, 527. 
 Disclaimer upon, continuing trus- 
 tees may exercise special powers, 
 532, 533; and see 534. 
 Discretionary, 526, 701 ; see 22, 
 
 386, and Arbitrary, sup. 
 Distinguished, 524; and as to mix- 
 ture of trust and power, see 22 ; 
 and see Gift, inf., and 429.
 
 792 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 POWERS, continued. 
 
 Executory trusts, what powers may 
 be introduced under, 164, et seq. 
 Equitable distinguished from legal 
 powers, 525. 
 may be annexed to estate or 
 simply collateral, ib. 
 General powers of trustees, e. xix, 
 s. 1, p. 512. 
 trustee may do without suit what 
 is compellable by suit, 513, 519. 
 as to advancement, 518, 519; 
 alienation of charity estates, 515, 
 and see 503, and Sale; appro- 
 priation of legacy by executor, 
 517; bill in parliament oppos- 
 ing, 515; promoting, 516, and 
 see 494; debts admitting, 522, 
 and see 487 ; compounding, 
 paying, or releasing, 520, 524; 
 improvements, 513, 514; in- 
 surance, 516; investment, see 
 Investment, and 524 ; leasing, 
 522, see 416, and Leases; main- 
 tenance, 517 ; mortgaging, 416, 
 417, see Executor (powers) ; re- 
 ceipts, see Receipts and Execu- 
 tor (powers) ; reimbursements 
 of expenses, 521 ; releasing, see 
 Debts, sup., and Release; re- 
 pairs, 513, 514; sale, see Exe- 
 cutor (powers) ; timber, as to, 
 515, and see Timber; varying 
 securities, 523. 
 Gift, words of, distinguished from 
 
 words of powers, 700. 
 
 Imperative, 526, 536, 694, 701, et seq. 
 
 court will execute on failure or 
 
 default of trustee, 696 ; and 
 
 see 543. 
 
 where settlor has prescribed any 
 
 rule, court adopts it, 696. 
 where no rule, equality is equity, 
 
 700 ; see 707. 
 in favour of what objects court 
 will execute where immediate 
 exercise is contemplated, 703, 
 see note [d). 
 where immediate exercise is not 
 contemplated, 704 ; where 
 power testamentary, ib.; not 
 merely testamentary, ib. ; by 
 deed or will, 705. 
 "next of kin," in favour of, con- 
 strued "nearest of kin," 707. 
 " relations," in favour of, how con- 
 strued, 705, et seq.; poor "re- 
 lations," 698, note (1). 
 to whom donee of power may ap- 
 point, 705, 706 ; to whom court 
 may appoint, 706, 707: whether 
 
 per stirpes or per capita, 706, 
 707, and note {s). 
 when to one of a class exclusively, 
 707, 708. 
 Implied ; see Implied Poioers. 
 Legal ; see Construction, Equitable, 
 
 sup. 
 New trustees of, appointing ; see 
 
 I\ew trustees. 
 " Proper," what authorized by this 
 
 term, 164. 
 Sale of, authorized under settlement 
 by reference, 165 ; and see 
 Sale. 
 distinguished from trust for sale, 
 429. 
 Selection of; see Selection. 
 Special powers of trustees, c. xix. s. 
 2, p. 524 ; see Assignment, Con- 
 struction, Control,Disclaimer, sup., 
 Survivcn'shij), inf. 
 Strict, explained, 527. 
 Survivorship of, mere power to seve- 
 ral does not survive, 536. 
 trust or power imperative survives, 
 
 ib. 
 where given to trustees by name, 
 
 semble, 538. 
 qu. as to arbitrary power annexed 
 to trust, ib. 
 "Usual," 164. 
 
 AVill to appoint by, contemplates 
 those who answer description at 
 death of donee, 170, 704. 
 PRACTICE. See Ansiver, Bill, Costs, 
 Inforination, Parties, Pleadings, 
 Petition. 
 Alterations in, 368, et seq. ; 852, 
 
 854, 865. 
 Application to lord chancellor, when 
 visitor of charity, by petition to 
 great seal, 495. 
 Appointment of new trustees, 583. 
 
 See Keic trustees. 
 Distringas, as to, 858. See Dis- 
 tringas. 
 Feme covert, having separate estate, 
 
 as to, 633, 640, 858. 
 Payment of money into court, as to, 
 864. See Payment of money 
 into court. 
 Receiver, as to, 869. See Receiver. 
 Stop orders, as to, 613, 614. 
 Wilful default, account with, not or- 
 dered on further directions, 765. 
 conf. as to interest, 359. 
 PRAECIPE, 
 
 equitable tenant to, 604. 
 PREACHER, 
 
 gift to find a, 495; and see Minis- 
 ter.
 
 INDEX. 
 
 793 
 
 PRECATORY WORDS, 
 force of, 167. 
 
 will not create trusts where objects 
 or subject-matter of trust uncer- 
 tain, l(i8, et seq. 
 PRECAUTIONS tu be adopted by 
 trustee. See Duties of trustee^ In- 
 vestment, 
 PREROGATIVE. See Prolate. 
 PRESENTATION, 
 
 trust to purchase in favour of a par- 
 ticular person within statutes 
 against simony, 136. 
 trustee presents, but at discretion of 
 c. q. t., 269, 318. 
 PRESUMPTION. See Advancement, 
 liesulting trust. 
 Bar from to relief in equity, 735, 
 (see Limitation of suits) ; how 
 far applicable to trusts for chari- 
 ties, 787. 
 Election of, by c. q. t., 823, 824. 
 Infant, gift to, presumption that he 
 
 takes beneficially, 39. 
 Of law, may be rebutted by parol 
 evidence, 181. 
 PREVENTION, 
 
 of breach of trust ; rights of c. q. t. 
 in c. XXV. p. 710. See c. q. t. 
 PRINCIPAL. See Investments (Lia- 
 bilities), 
 has absolute property, factor has 
 
 only special property, 275. 
 release of, discharges accessory, 777. 
 PRIORITY. See Notice, Stoj) order. 
 PRIVATE, 
 
 Contract, whether trustees, &c., may 
 
 sell by, 422. 
 Trusts, 23 ; limits of their duration, 
 23; see 103,111. 
 PRIVILEGES, 
 
 of c. q. t., 592, et seq. See c. q. t. 
 of trustee, 268. 
 PRIVITY, 
 
 as applicable to cestui que use, ex- 
 plained, 3 ; where released as to 
 trusts, 11. 
 estate, of, explained, 3, 18; extent 
 
 of term " privity of estate," 18. 
 person, of, explained, 19. 
 PRIZES, 
 
 taken in war, 25, 101. See Croivn. 
 PROBATE, 
 
 Duty not payable on proceeds of 
 land to be converted into money, 
 807. 
 Prerogative, when required, 261 ; 
 sovereign, will of private property 
 of, not admitted to, 25. 
 PRODUCTION, 
 
 Documents of, how trustees should 
 May, 1858.— 51 
 
 eovenunt for, 425. 
 Vouchers of, trustee must make, 428. 
 See 599. 
 PROHIBITION, 
 
 issued against spiritual court inter- 
 fering in a trust, 20. 
 PROMISSORY NOTE, 338. See BUI 
 
 of Exchange. 
 PROOF, 
 bankruptcy in. See 269, Trustee, 
 
 inf. 
 mortgagee, by, in administration 
 suit, bankruptcy, and trust for cre- 
 ditors, 485. 
 Trustee, on bankruptcy of, 357 ; and 
 see 771, 772. 
 "PROPER POWERS," 
 
 to tenants for life, what powers au- 
 thorized by, 166. 
 PROPERTY, 
 
 what mav be subject of trust, c. it. 
 
 p.45. " 
 how far property out of jiirisdiction, 
 47 ; and see Abroad, Jurisdiction. 
 PROTECTION, 
 
 C. q. t. of. See c. q. t. (Protection), 
 Distringas, Payment into Court, 
 Receiver. 
 Trustee, of. See Indemniti/, Trus- 
 tee Relief Acts. 
 PROTECTOR, 
 
 Of settlement under Fines and Reco- 
 veries Act, 411, 412. 
 Consent of, to vesting order under 
 
 Trustee Act, 885, note (/). 
 Disclaimer, how he must make of 
 
 office, 237. 
 Special, whether one will be appoint- 
 ed of settlement, in pursuance of 
 executory trust, 157. 
 Trustee he is not, in respect of his 
 power of assent, 412. 
 PROVING WILL, 
 
 an acceptance of trust, 239 ; but see 
 240. 
 PROXY, 
 
 appointment of, distinguished from 
 delejjation of office, 297. 
 PUBLIC, 
 
 POLICY; see 497. Securities, 352. 
 Trusts same as charitable trusts, 
 their duration permanent, 23. 
 PUR AUTRE VIE. See Copyholds 
 (for lives), 
 not within stat. de donls, and cannot 
 
 be entailed, 603, note (1)._ 
 limited to one aud heirs of his body, 
 not a fee conditional, ib. 
 PURCHASE, 
 
 Power to purchase by way of invest- 
 ment, 349.
 
 794 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 PURCHASE, continued. 
 
 Resulting trust, where created by 
 purchase in name of third per- 
 son, 199 et seq. ^%q Resulting 
 Trust. 
 not when in name of child, &c., 
 207, et seq. See Advancement. 
 Trustees by, reversion of renewable 
 
 leaseholds, 225. 
 Trustees for sale by, of trust proper- 
 ty, 4G0, et seq. See Sale ; Tenant 
 for Life. 
 PURCHASE MONEY, 
 
 whether bound by judgments against 
 vendor, 654, 656. 
 PURCHASER. See Settlement (Rec- 
 tification). 
 Accidental damage to estate pur- 
 chased, he must bear, but is en- 
 titled to improvements, 174. 
 Application of purchase money, 
 where he must see to, 430, et seq. 
 See Receipts. 
 C. q. t., purchaser is a c. q. t. sub 
 
 niodo, 175 ; see 799. 
 Charity estate, of, 503, 504. See 
 
 515," 782, note («'). 
 Chose in action of, from trustee bound 
 
 by same equity as trustee, 729. 
 Dying intestate aud without heir, 
 after payment of purchase money, 
 but before conveyance, vendor 
 keeps estate, 322. 
 Equitable interest, of, must inquire 
 of trustee as to prior incumbran- 
 ces, 604. 
 must give notice of his own, 605 ; 
 (and see Notice) ; how he takes 
 priority, 729. 
 Equity to settlement of feme covert, 
 
 as against, 370. 
 Heir taking as, see 17, 148, 680. 
 Judgment creditor, is not a pur- 
 chaser, 280 ; and see 668, note [d). 
 Legal charge, purchaser bound by, 
 whether with or without notice, 18, 
 282. 
 Lunatic or idiot, purchaser from 
 
 without notice, 27. 
 Notice. See Eqidtahle interest and 
 Legcd charge, Lunatic, sup.; Trust 
 and Use, inf. 
 Security to solicitor for costs, set 
 aside even as against purchaser, 
 550. 
 Trust, where bound by, 
 purchaser of legal estate with no- 
 tice bound, 725. 
 rule applies to constructive 
 trusts, equitable incum- 
 brance, or lien, 725. 
 
 to conveyance by fine, 224. 
 notice presumed from recitals, 
 224. 
 without notice, not bound, 725. 
 
 See 224, 406, 469. 
 whether he can protect him- 
 self by getting in legal es- 
 tate, 726. 
 with notice from purchaser 
 
 without, not bound, ib. 
 without notice from purchaser 
 with, not bound, ib. 
 in case of equitable interest, 
 
 see 729. 
 but rule does not apply to 
 charitable use, 726. 
 trustee selling to purchaser with- 
 out notice, and then becoming 
 owner, trust revives, 726. 
 whether purchaser bound by no- 
 tice of doubtful equity, 727 ; of 
 title long neglected, 728 ; and 
 see Chose in action, and Egid- 
 tahle interest, sup. 
 Voluntary settlement of realty not 
 good as against purchaser, 92, 93. 
 See Voluntary Settlement. 
 QUALIFICATION, 
 
 of c. q. t. to be juror, 592. 
 QUASI-TRUSTEE, 
 
 person becoming, by reaping benefit 
 of breach of trust, 768, 771, 846. 
 See 244. 
 QUEEN. See Crown. 
 QUEEN'S BENCH, 
 
 civil corporations visited by, 495. 
 " QUI PRIOR TEMPORE, 
 
 potior jure," 606 ; and see note {g). 
 QUORUM, 299. See Co-trustees. 
 
 RAILWAY SHARES, 
 
 bequeathed in succession, converted 
 into £3 per cents., 812. 
 RATES, 
 
 trustees liable to, unless where trus- 
 tees exclusively for public pur- 
 poses, 271, 272. 
 trust, in aid of, 496 ; in aid of church 
 rates, 107. 
 RATE-PAYERS, 109. See Parish- 
 ioners. 
 REAL, 
 
 Estate in trustees for creditors, &c., 
 what parties necessary for suit, 
 843, see 855. 
 Securities. See Investment. 
 REALTY, 
 
 effect of blending into one fund with 
 personalty under a will, 183, 196. 
 REBUTTER, 
 
 of resulting trust upon advancement.
 
 INDEX. 
 
 795 
 
 REBUTTER, continued. 
 
 214 ; presumption of law, 181, see 
 182 ; purchase in name of stranger, 
 206. 
 RECEIPTS, 
 
 Agent or attorney of, 372. 
 Breach of trust ; see Trustee, inf. 
 Charge of debts implies power of 
 giving receipts, 433, 440. 
 who can give receipts in case 
 of, 440 ; true principles, 448. 
 
 1. Devise to trustees ; trustees and 
 
 executors can sell together, 
 440. 
 whether executors have legal 
 power and can pass the estate 
 independently of trustees, qu., 
 441 ; and see 443 and notes. 
 
 2. Beneficial devise, with charge 
 
 of debts, 443. 
 
 devisee where executor also can 
 make a title, 444. 
 
 and semble devisee, without con- 
 currence of executor, can 
 make a title, ib. 
 
 3. Where no devise of estate, 444. 
 heir cannot give good receipt, 
 
 semble, and why, ib. 
 whether executor takes legal 
 
 power of sale, 445. 
 executor takes equitable power 
 of sale, semble, 445, 446, 
 note (?•). 
 and on his exercising it con- 
 veyance must be made by 
 person having legal estate 
 or under Trustee Acts, 446. 
 
 4. Simjile devise which lapses, 447. 
 whether executor can take power 
 
 of sale, qu., 447. 
 
 5. Where estate subjected to vari- 
 
 ous limitations, ib. 
 semble, executors take an equi- 
 table power of sale, 448. 
 Co-administrators on same footing 
 
 as co-executors, 316. 
 Co-executor liable for joining in pro 
 forma, 310, et seq. 
 unless his joining nugatory, 311, 
 or ex necessitate, 314 ; and see 
 Executo7\ 
 Co-trustees must all join in giving, 
 298, 330. 
 even co-trustee who has conveyed 
 
 estate to the others, 449. 
 secus as to co-trustee who has dis- 
 claimed, ib. 
 co-executor, 310. 
 co-trustee joining in but not actu- 
 ally receiving, not liable, 304; 
 secus where money improperly 
 
 raised, 306. 
 but joint receipt conclusive at law 
 of actual receipt, 305; and see 
 313. 
 and involves onus proband! that 
 co-trustee did not receive, 305; 
 see Co-trustee, Indemnity, In- 
 vestment. 
 Discharge of, 428, 430; see Power 
 
 of Giving, inf. 
 Executor, where his receipt will dis- 
 charge a purchaser, 453, et seq. ; 
 see Executor (Powers). 
 Executory trusts silent as to powers 
 whether it authorizes power to give, 
 164, note {x). 
 Husband of feme covert, of, 627. 
 Infant, of, 372. 
 
 Liability for joining ; see Co-execu- 
 tors, Co-trustees, sup. 
 Official trustees, of charitable funds 
 
 of, 382. 
 Partner of, 373. 
 
 Power of giving; see 451, Cliarye 
 of debts. Executor, sup., Pur- 
 chaser, Time, inf. 
 
 1. Express, 430 ; see 331. 
 
 2. Implied, 431, et seq. 
 
 (1) By direction in power of im- 
 
 mediate sale, 431 ; see 330. 
 e. g. when future distribution 
 
 of proceeds directed, 431. 
 or cs. q. t. are infants, 432. 
 qu. as to cs. q. t. abroad, 432 ; 
 
 see 453. 
 
 (2) By special trust annexed to 
 
 purchase money, 
 e. g. trust for investment, 433 : 
 and see 523. 
 to pay debts, 434; debts and 
 legacies, 435. 
 secus where for particular debts, 
 
 435. 
 or legacies only, ib. ; as to lega- 
 cies not yet payable, see 430. 
 Exceptions, purchaser is not in- 
 demnified (1) where collusion: 
 
 (2) after institution of suit ; or _ 
 
 (3) where notice of intended mis- " 
 application, 436, and see 331, 
 458 ; (4) where sale not justified, 
 428. 
 
 Purchaser discharged by receipts of 
 
 executors; see Executors, s,w\). 
 when by receipts of trustees, 430 ; 
 
 see Power of giving, sup., and 
 
 428. 
 practical directions where several 
 
 purchasers and no power to give 
 
 receipts, 451. 
 principle of requiring him to see
 
 796 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 RECEIPTS, continued. 
 
 to application, 430 ; new prin- 
 ciple suggested, 452. 
 Time, purchaser from administrator 
 or executor after lapsed, 458. 
 from trustee after lapse of, 436. 
 power of signing receipt a ques- 
 tion of intention at date of deed 
 or of testator's death, and not 
 altered by subsequent events, 
 436, 437. 
 Trustees ; see Charge of Debts, Power 
 of giving, sup. 
 appointed by court, their power to 
 
 give, 450. 
 assignee of, whether he can give 
 
 receipts, 449. 
 breach of trust after, whether their 
 receipts are good, 450. 
 who intend, id., 331, 436. 
 receipts, they retain the vouchers 
 
 for, 428. 
 sale, should see that it is justified, 
 
 428, 430 ; see Sale. 
 where no money passes to trustee, 
 
 451. 
 whether they must actually receive 
 purchase money, 451 ; see 330, 
 422. 
 Varying securities, power of, whether 
 it implies power to give receipts, 
 523. 
 RECEIVE, 
 
 rents, whether trust to, identical with 
 
 trust for possession, 588. 
 trust money, how trustees should, 
 296, 330. 
 RECEIVER, 
 
 Appointed by court, 
 
 at instance of all cs. q. t., but usual 
 
 recognizances necessary, 869. 
 at instance of individual c. q. t., 
 870. 
 where trust estate in danger 
 from circumstances, or con- 
 duct of trustees, or unpro- 
 tected, 870 ; see 871, note [I). 
 where executor drunken, &c., 
 
 and in great poverty, 870. 
 executrix feme covert, and hus- 
 band abroad, ib. 
 tenant forlife of renewable lease- 
 holds refuses to renew, 402, 
 722. 
 trustee of bankrupt or insolvent 
 guilty of misconduct, waste, 
 &c.orincapable of acting, 870. 
 where all trustees disagree or 
 are abroad, ib. 
 not appointed on slight grounds, 
 870, 871. 
 
 e. g. where one co-trustee abroad 
 has disclaimed, or is inactive, % 
 
 870. _ \ 
 
 not generally discharged at mere | 
 
 instance of party procuring | 
 appointment, 871. 
 exception where new trustees, 
 ib. 
 Direction to employ A. as, with pro- 
 per salary, constitutes a trust, 
 101. 
 secus as to mere recommendation, 
 102. 
 Infant cannot be appointed, 36. 
 Interest, he will be charged with, for 
 
 improper retainer, 359. 
 Salary, case of receiver appointed 
 
 without, 590. 
 Time or trouble, he cannot charge 
 
 for, 546. 
 Trustee cannot be appointed at a 
 salary unless mere trustee to pre- 
 serve, (fcc, 314. 
 RECITAL, 
 
 Declaration of trust, it may prove, 63. 
 
 False, effect of, 875. 
 
 Notice by recital of surrender of 
 
 former lease, 224. 
 Trustee executing trust deed should 
 see that recitals are correct, 238. 
 RECOMMEND, 
 
 may raise implied trust, 168, but see 
 102, 172. 
 RECONVEYANCE. See Mortgage. 
 RECOUP, 
 
 right of trustee to, after making 
 over-payment, 373. 
 RECOVERY, 
 
 Equitable entail, its effect on, 601, 
 
 et seq. 
 
 howit musthave been suffered, 604 . 
 
 Infant tenant in tail conveyed by, 
 
 under Trustee Enabling Acts, 835, 
 
 note (?0- 
 
 Infant, of, formerly only reversible 
 
 during nonage, 26. 
 Lunatic or idiot, of, formerly valid 
 
 unless reversed, 27. 
 Trustees to preserve when they could 
 
 have prevented, 404. 
 Vacation, could not be suffered in, 
 819. 
 RECTIFYING, 
 
 settlement : see Settlement. 
 REDEMPTION OF LAND TAX, 
 of lunatic's estate, may be effected 
 from proceeds of timber, 827. 
 REDUCTION, 
 
 into possession of feme covert's 
 chose in action, 26, 370, 627, 628, 
 631.
 
 INDEX. 
 
 •9' 
 
 REDUCTION, continued. 
 
 not where reversionary, 370, et seq., 
 
 628. 
 into possession of trust estate, c. 
 xiii. s. 1, p. 326 5 and see Livest- 
 ment (Duties). 
 REFERENCE, 
 
 words of, creation of trusts by, 167. 
 creation ofpovvers by, 433, note (6). 
 REFUSAL, 
 
 of trustees to act, 710 ; and see 543, 
 
 696. 
 to convey or transfer, at request of 
 
 c. q. t., 595, 600. 
 how remedied under Lord St. Leo- 
 nards' Trustee Act, 837, see note 
 (a) ; 838, see note (/). 
 how under Trustee Acts ; see Trus- 
 tee Acts. 
 REGISTRY, 
 
 Acts, as to register, counties, 672 ; 
 
 ships, 203. 
 Decrees, judgments, «&c.,of, 667,668, 
 note (e) ; 669. 
 REIMBURSEMENT, 
 
 of trustees' expenses, 521 ; and see 
 c. XX. s. 2, p. 557 ; Exjjenses, and 
 873. 
 RELATIONS, 
 
 Bequest to poor relations, how con- 
 strued, 698, note (1). 
 Power in favour of, how to be exe- 
 cuted by donee, 705 ; see 542. 
 on failure of trustees by court, 
 706 ; see Poioers (Imperative). 
 Trust for, how construed, 170. 
 Trustees whether they should grant 
 leases to, 505. 
 undesirable to have relations as 
 trustees, 40 ; but see 789. 
 RELATORS, 
 
 necessary in information on account 
 of costs, 779. 
 RELEASE, 
 
 Breach of trust from, by c. q. t., re- 
 quisites of, 777, 778. 
 by feme covert or infant, 777. 
 C. q. t., by, in ignorance of his rights, 
 
 224. 
 Co-trustee, of one, discharges ano- 
 ther, 773 ; secus as to bond not 
 to sue, ib.; comp., 854. 
 Consideration, what sufficient for, 
 
 737. 
 Creditor of, by accepting composi- 
 tion, 486. 
 Debts, whether trustee may release, 
 
 520. 
 Equity of redemption of no value, 
 whether trustee may release, 521. 
 Mortgage security, release of part, 
 
 whether trustees may make, 521. 
 Principal, of, discharges accessory, 
 
 777. 
 Seal under, its effect, and whether 
 
 trustee may require, 373. 
 Trust from, how trustee can obtain, 
 
 289. See Relinqiiishment. 
 Trustee paying under direction of 
 court not entitled to, 375. 
 whether trustees on payment to 
 
 trustees can require, 374. 
 expense of release to trustees and 
 by whom prepared, 375. 
 RELIEF. See Trustee Relief Ads. 
 RELIGION, 
 
 Established, when court executes 
 trust in favour of, 497. 
 RELINQUISHMENT, 
 
 of trust by trustee, how effected, 
 c. XXI. p. 565. 
 («) Consent, by, of all cs. q. t. if sui 
 
 juris and in esse, 565, 566. 
 (6) Court, by application to, 582, 
 and see 584. 
 by representative of deceased 
 trustee, 584. 
 where no new trustee can be found, 
 
 582. 
 application, how made and costs 
 
 of, 583. 
 when new trustee appointed on 
 petition under Bankruptcy Act, 
 714; Lord St. Leonards' Trus- 
 tee Act, 713, 834; Trustee Acts, 
 714; see Trustee Acts ; and s. 
 36 of Trustee Act. 
 (c) Power by virtue of a, 566 ; see 
 New trustees. 
 REMAINDERMAN, 
 
 Election, how far he is capable of, 
 
 818 ; see Election. 
 Equity of redemption of, when time 
 
 runs against, 733. 
 Limitations, Stat, of, whether s. 25 
 abridges rights of e. q. t. in re- 
 mainder, 722, see note (?•) ; 745 ; 
 as to receiver of renewable lease- 
 holds, 402, 722. 
 Remedies of bill to have number of 
 trustees filled up, 710, and comp. 
 368, 723, 733, 868. 
 Renewable leaseholds of, fines ap- 
 portioned between him and te- 
 nant for life, 305. 
 laches not imputable to him dur- 
 ing life of tenant for life, 402. 
 Trustee must not favour tenant for 
 life at expense of, 339, 344, 348, 
 415, 418, 421. 
 REMAINDERS, CONTINGENT. 
 See Continrjcnt Eemainders.
 
 798 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 REMEDY, 
 
 c. q. t., of, is in chancery, 19. 
 
 not in common law court for breach 
 
 of implied contract, 20. 
 nor in spiritual court, ib. 
 for breach of trust, see Breach, of 
 trust (remedy). 
 Trustee of (where breach of trust), 
 against (1) c. q. t., 353, 392, 
 TGS, 771, 846; (2) co-trustee, 
 317, 767, 768, 845; and see 
 309. 
 where construction of trust doubt- 
 ful, 367, 368, and 375, et seq.; 
 see Trustee Relief Act. 
 REMOVAL OF TRUSTEES, 710, 
 
 711. 
 RENEWABLE LEASEHOLDS, 
 C. XIV. p. 383 ; see Constructive 
 
 trusts. 
 Accumulations for renewal, who en- 
 titled to when renewal cannot be 
 obtained, 392. 
 Copyholds vested in trustee, admis- 
 sion fines how raised, 402, 403. 
 Fines for renewal, whether out of 
 annual rents or by mortgage, 
 (a) where fund pointed out by 
 
 settlor, 386, et seq. 
 as to leaseholds for years : how 
 to be raised " out of rents and 
 profits," 386 ; " out of rents 
 and profits or by mortgage," 
 387, 388. 
 as to leaseholds for lives : whe- 
 ther to be raised out of annual 
 rents and profits, 388, et seq., 
 and see 391 ; payable out of 
 insurance may be adopted, 
 391. 
 (&) where no direction by set- 
 tlor, 393, et seq. 
 fine may be raised by tenant for 
 life and remainderman, or 
 one of them, 393 ; if they 
 refuse, how far mortgage by 
 trustee is feasible, semble ap- 
 plication to the court neces- 
 sary, ib. ; see note (r). 
 apportionment of fines (if neces- 
 sary), how made, 395, et seq. 
 tenant for life and remainder- 
 man pay in proportion to 
 their actual enjoyment, 397; 
 see 387, 391, 400. 
 court will not act on speculative 
 calculations, 395 ; but see 
 case in same page, 
 proportion, how ascertained as to 
 leaseholds for years, 397. 
 compound interest allowed te- 
 
 nant for life on his share, 
 and for what period, ib. 
 tenant for life having had no 
 enjoyment does not pay, 398. 
 how ascertained as to leaseholds 
 for lives, 398, 399, and see 
 400 and 394. 
 contribution, how secured, 398, 
 400, 402. 
 if made by tenant for life he has 
 
 a lien, 400, and see 398. 
 if made out of trust fund or by 
 remaindermen, tenant for life 
 gives security, 402 ; see 398, 
 400. 
 ■when by appointment of receiv- 
 er, 402, 722 ; or sequestration 
 of rents, 402. 
 but suit for compensation can- 
 not be instituted till death of 
 tenant for life, 402 ; until then 
 remainderman not guilty of 
 laches, ib. 
 Liability of trustees and tenant for 
 life for neglect to renew, 392 ; see 
 769, et seq. 
 Obligation to renew, 383, et seq. 
 obligation not necessarily imposed 
 where successive estates limited 
 but no trustee, 383. 
 implied in articles for settlement, 
 
 385, 386. 
 whether implied by interposition 
 of trustee, 384, and see note (Z). 
 whether implied in marriage set- 
 tlement, 385. 
 discretionary renewals, construc- 
 tion of, "it shall be lawful for 
 trustees to renew," &c., 386. 
 Person renewing when a construc- 
 tive trustee, 218. 
 Tenant for life entitled to fines paid 
 by under-lessees, 392. 
 when regarded as a trustee, 402. 
 RENEWAL OF LEASES. See Re- 
 ncicable Leaseholds. 
 Lunatic, leases of, may be made out 
 
 of his personal estate, 828. 
 Right of, trustee, &c., cannot sell, 
 220. 
 RENT. See Mesne Rents, Renewable 
 Leaseholds. 
 Arrears of, what recoverable under 
 
 Statute of Limitations, 744, 748. 
 Charity estate of, increasing surplus 
 
 how applied, 198. 
 Grantee of, dying without heirs, rent 
 
 sinks into land, 321. 
 Rack, 505. 
 
 *' Raised, not to be," construction of 
 as to charities, 506.
 
 INDEX. 
 
 199 
 
 RENUNCIATION. See Acceptance, 
 Disclaimer, Executor. 
 of the trust not permitted after accept- 
 ance, 289. 
 REPAIRS. See Expenses. 
 Allowances for, when made by trus- 
 tees, 513 ; upon setting aside pur- 
 chases by trustees for sale, 466. 
 Infant's lands, upon, may be made 
 out of his personalty, 830. 
 so as to lunatic, 827. 
 Tenant for life, by, 514. 
 Trust for, a special trust, 247 ; and 
 see Legal Estate. 
 repairing chapel, 496, see 501. 
 REPUTED OWNERSHIP, 
 of chattels ; see Order and Disposi- 
 tion. 
 REQUEST, 
 
 Order of court not considered as 
 "request" of party, 839, note (</). 
 Power of sale at request, 540. 
 Purchase to be made at, 807 ; sale 
 at 419. 
 " REQUESTING." 
 
 may raise a ti-ust, 167. 
 REQUIRED, 
 
 to lend, 339 ; to purchase, 349, and 
 see 542. 
 RE-SALE, 
 
 of property purchased by trustees for 
 sale, upon what terms oi'dered, 
 467 ; see 465, Sale. 
 RESIDUARY, 
 
 Bequest passes proceeds of lands, 
 subject to trust for conversion, 
 807. 
 will • not pass resulting trust of 
 
 proceeds of sale of lands, 195. 
 unless such proceeds directed to 
 be taken as personal estate, 196, 
 197. 
 where it passes void or lapsed 
 legacy out of land directed to 
 be sold, 196. 
 passes, accumulation void under 
 Thellusson Act, 118. 
 Devise, whether it passes resulting 
 trusts in real estate, 195 ; accumu- 
 lation void under Thellusson Act, 
 118. 
 "Executor," 195. 
 
 Legatee, distinction between claim 
 of and of next of kin to undis- 
 posed proceeds of sale of land, 
 197 ; and see 184. 
 takes under present law in case of 
 bequest with insufficient decla- 
 ration of trust, 68. 
 "RESIDUE," 195; within "legacy" 
 in s. 40 of late Limitation Act, 744, 
 
 note (ic). 
 RESTRAINING ORDER, 
 
 under 5 Vict. c. 5, s. 4 ; see Distrin- 
 gas, 860, 863. 
 RESTRAINT, 
 
 against alienation, 132. 
 against anticipation ; see Feme Co- 
 vert. 
 RESULTING TRUST, c. viii. p. 176. 
 On Disposition of Legal but not of 
 
 Equitable Liter est. 
 Arises [a) by expression of intention. 
 e. g. on conveyance, grant, or be- 
 quest " upon trust" where trust 
 is not declared vague or fails, 
 181; see 118. 
 parol evidence inadmissible to re- 
 but, 182. 
 (&) by presumption ; see Implica- 
 tion, infra, 
 whether on voluntary grant of 
 whole estate to stranger, 177; 
 see note [d). 
 conveyance to wife or son ; an ad- 
 vancement, ib. 
 case of mistake or fraud, transfer 
 of stock, or delivery of money, 
 178. 
 conveyance, devise, or bequest 
 where trust declared of part of 
 estate, 179 ; see charge, infra, 
 devisee or legatee, effect of rela- 
 tionship, 180 ; not necessarilv 
 excluded from beneficial gift by 
 use of "trust," "trustee," ib. 
 parol evidence admissible to rebut, 
 181 I see 178. 
 Charge distinguished from exception 
 out of devise, 191 ; from partial 
 trust, 179. 
 of debts on devise to A., no result- 
 ing trust, 179." 
 of legacy for charity, 192, et seq. : 
 contingent or which fails, 190. 
 of sum to be appointed, and no 
 
 appointment, 190. 
 "subject thereto," effect of, 191; 
 when implied, ib. 
 Charities, in gifts to, 198 ; legacy for, 
 
 192; see Charities. 
 Failure of c. q. t. by, 197. 
 Heir, 176, 184; see Heir, Land, 
 
 Money, infra. 
 Implication, Mdien partial trust raised 
 
 by, surplus does not result, 173. 
 Land devised on trust for sale, un- 
 disposed of proceeds result to 
 heir, 182. 
 notwithstanding direction that 
 proceeds shall be considered 
 personalty, or that nothing shall
 
 800 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 RESULTING TRUST, contmued. 
 
 result to heir, 182, 183, note 
 (o) ; or bleudino^ of realty and 
 personalty, 183, but see 196. 
 whether as realty or personalty, 
 
 184; and see 118, 177. _ 
 ' secus if resulting interest disposed 
 of, what disposition sufl&cient, 
 194, et seq. ; see 197. 
 effect of blending realty and per- 
 sonalty: "personal estate," 196; 
 " residue," " residuary execu- 
 tor," 195 ; and see 184. 
 Money to be laid out on land, undis- 
 posed of interest results to execu- 
 tor for next of kin, 187. 
 Parol evidence, when it may rebut 
 resulting trust, 181, 182 ; see 178. 
 Personal estate of for next of kin, 
 effects of residuary bequest, 197. 
 Purchase in cases of: 
 {a) Purchase in name of stranger 
 generally constitutes resulting 
 trust, 199. 
 so on a joint purchase in name of 
 
 stranger, 199, 201. 
 so tenancy in common is implied 
 in case of joiut loan, 201 ; or 
 where two, possessed of mort- 
 gage term, purchase equity of 
 redemption, 202. 
 in joint purchase where purchasers 
 contribute unequally, 202 ; or 
 in joint undertaking in trade, ib. 
 but where contribution is equal, 
 joint tenancy is implied, 201 ; 
 and see Joint Tenanci/. 
 how far rule applies in purchase of 
 copyholds for lives, 202 ; and 
 as to personalty, 200. 
 rule does not apply to advance by 
 A. not in 'the character of pur- 
 chaser, 200. 
 nor to purchase in contravention 
 of Papistry Acts, of ship, or for 
 giving votes, 203. 
 Laches, resulting trust may be re- 
 butted by, 207. 
 Parol, purchase is provable by, 
 though otherwise expressed in pur- 
 chase deed, 204 ; or against de- 
 fendant's denial, 205, note (/'). 
 or after death of nominal pur- 
 chaser, semble, 206. 
 but evidence must be clear, 205 ; 
 and see Frauds, Stat. of. 
 secus where purchase by agent 
 and no money paid bv employ- 
 er, 204. 
 resultine trust mav be rebutted 
 by, 206. 
 
 subsequent declaration, effect of, 
 207. 
 (6) Purchase by father in name of 
 child, &c., implies advancement, 
 not resulting trust, 207, et seq. ; 
 see Advancement. 
 RETAINER, 
 
 of trust funds by assignees, 359; exe- 
 cutors, 358, 875, 876 ; receiver, 
 359 ; trustees, 358 ; of charities, 
 502. 
 RETIREMENT, 
 
 of trustee from the office ; see New 
 Trustees, Relinquishment. 
 REVERSION, 
 
 Laches, effect of, in suit to set aside 
 
 purchase of, 742. 
 Mortgage of, 350. 
 
 Renewable Leaseholds of, how far 
 trustee purchasing is a construc- 
 tive trustee, 225. 
 REVOCABLE, 
 
 trusts, 25, 101,481; see Debts, na- 
 ture of, 483. 
 ROBBERY, 
 
 of trust property, 332. 
 ROMILLY'S ACT, 779, et seq. 
 RULE OF COURT, 
 
 when with 1 & 2 Vict. c. 110, s. 18, 
 667, note (c). 
 
 SALE. See Abroad, Purchaser, Re- 
 ceipts, Specific Performance, Vol- 
 uutary Settlement, Trustee Acts 
 (petition). 
 Charity lands, of, 503, 504, 515, 782, 
 
 note («'). 
 Contract for, raises implied trust, 
 
 174. 
 Decree for, person to convey under 
 a constructive trustee, 839, note 
 (/) ; comp. Trustee Act, ss. 29, 
 30 ; Extension Act, 5, 2. 
 Devise upon trust to sell passes the 
 
 fee, 250 ; see 247. 
 Direction for in will raises a trust, 
 
 173. 
 Power of; see Executors (power). 
 Mortgage. 
 implied where by charge, 251 ; 
 
 see 257. 
 personal estate on deficiency of, 
 
 428. 
 partition is not authorized by, qu. 
 whether by power to sell and 
 exchange, 417. 
 usual in settlement, effect of, 417, 
 see 421 ; whether exercisable 
 unless trustees have another 
 purchaser in view, 418. 
 Trust for, whethera ministerial trust. 
 
 I
 
 INDEX. 
 
 801 
 
 SALE, continued. 
 
 21; survivorship of, 419; see 
 Sale^ Trustees for. 
 to mortgage, does not authorize a 
 sale, 417. 
 SALE, TRUSTEES FOR. See Mort- 
 gagee; Sale, Trust for; Thnber. 
 Generally, 
 Attested copies, when they must 
 
 give, 425. 
 Conveyance by, concurrence of cs. 
 q. t. where necessary, 427 ; cove- 
 nants, what, trustees must enter 
 into,-425, note (A:) ; for production, 
 425 ; of indemnity on sale of lease- 
 holds, 426 ; grant, effect of, 424, 
 note (^) ; see 596, note (r) ; pow- 
 er of attorney, form of, on assign- 
 ment of choses in action, 427. 
 Court, trustees may sell without ap- 
 plying to ; secus where suit pend- 
 ing, 414, 429. 
 Discretion of trustees sale at, pur- 
 chaser cannot question its exer- 
 cise, 417. 
 Duties of: should sell to greatest 
 advantage of all cs. q. t. impar- 
 tially, 414, and see 418. 
 should not delegate the trust, 422 ; 
 see 415; and see Court, sn\>., 
 Preliminaries, Quantity, Time. 
 inf. 
 Mode of conducting sale, agents, by, 
 422 ; auction or private contract, 
 by, ib. ; buying in, conditions of 
 sale, as to, 423 ; lots, ti-ustees may 
 sell in, 423 ; possession to pur- 
 chaser, when to be given, 424, see 
 871 ; receipt of purchase money, 
 422 ; see Receipts ; and Prelimina- 
 ries, Quantity, inf. 
 Pei'sonal estate, trust for sale on its 
 
 insufficiency for debts, 428. 
 Powers of: leases they may not 
 grant, 416, and see 462 ; mort- 
 gage, whether they may make, 
 416,417; a,ndi s,&Q Receipts ; and 
 Quantity, infra. 
 Preliminaries : advertisements, if by 
 auction, 422 ; title should be in- 
 vestigated before sale, 421 ; value 
 of property should be ascertained, 
 ib. 
 Quantity, whether trustees may sell 
 
 larger than trust requires, 429. 
 Request, sale at, &c., how it must 
 
 be testified, 419. 
 Specific j^erformance, costs of, 421, 
 872 ; not enforced if involving- 
 breach of trust, 415 ; whether 
 when involving hardship, 424. 
 
 Time for sale : reasonable time al- 
 lowed, 415 ; trust to sell with 
 " all convenient speed," 415, see 
 527 ; " after death of A.," 419 ; 
 within limited period, 416. 
 where legacies not yet raisable 
 are charged, 430 ; where por- 
 tions are raisable, 420, 430. 
 Their disability to purchase jjroperty, 
 c. XVI. s. 3, p. 460 ; and see Lease, 
 [a) Rule applies to purchase from 
 trustee, or co-trustee, 461 ; even 
 by means of agent, or as agent 
 for another, 462 ; at auction or 
 private contract, 461 ; however 
 fair the transaction, ib. ; in 
 name of trustee or another, ib. ; 
 and whatever the trust property, 
 460. 
 applies to assignees, administra- 
 tors, executors, receivers, &c., 
 465. 
 does not apply to execution 
 creditor on sale by sheriff, 
 nor to mortgagee, 465 ; nor 
 to trustee who has disclaim- 
 ed, 462. 
 whether to trustee without active 
 duties, 460. 
 (&) But trustee may purchase from 
 c. q. t., if relation of trustee and 
 c. q. t. dissolved, and no con- 
 cealment, 463. 
 cases where purchase sustained 
 from conduct of c. q. t., 464 ; 
 whether c. q. t.'s solicitor can 
 authorize purchase, ib. 
 cs. q. t., creditors, whether all 
 
 must sanction purchase, ib. 
 cs. q. t., sui juris, court cannot 
 authorize trustee to bid ; secus 
 where cs. q. t."are infants, 465. 
 (c) Confirmation of purchase, 471, 
 et seq. ; requisites of, 472; con- 
 sideration, it does not require, ib. 
 (c?) Laches, when a bar to relief, 
 470, see 742 ; in cases of class 
 (as creditors,) feme covert, in- 
 fant, 471. 
 no laches in case of ignorance, 
 471 ; whether in case of dis- 
 tress, ib. 
 (e) Terms on which purchase set 
 aside, 466. 
 1. c. cj. t. may pray reconveyance 
 on payment of purchase mo- 
 ney and interest at 4Z. per 
 cent., 466. 
 trustee accounts for rents (with- 
 out interest,) compensates for 
 deteriorations, but allowed for 

 
 802 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 SALE, TRUSTEES FOR, continued. 
 repairs and (unless where fraud) 
 lasting improvements, 466. 
 trustee paying money into court 
 not entitled to rise in stock, 467. 
 re-conveyance when ordered, 467 ; 
 without prejudice to bona fide 
 lessees, &c., ib. 
 2. c. q. t. (even a single creditor) 
 may pray re-sale, 467, 469. 
 trustee, where no advance, held 
 to his purchase, 468. 
 how allowed for repairs and 
 improvements, ib. 
 whether re-sale in lots can be 
 required, ib. 
 c. q. t., remedy of, in case ofshares, 
 469. 
 against subsequent purcha- 
 sers, ib. 
 costs follow decree, ib. ; not 
 where plaintiff' guilty of de- 
 lay, 470. 
 [f) Time within which relief must 
 be sought, 470 ; see Laches, sup. 
 SALE AND EXCHANGE, Power of. 
 whether authorized by " usual pow- 
 ers" in executory trusts, 164; un- 
 der covenant to settle realty simi- 
 larly to stock where power of vary- 
 ing securities, 167. 
 whether it authorizes partition, 417. 
 whether it implies power to give re- 
 ceipts, 433, note [u), 
 SCANDAL, 
 
 statement of trustee's misconduct is 
 not, 711. 
 SCHOOL, 
 
 chapel for, 496. 
 
 "free grammar and free school," 
 
 499, et seq. 
 trust for poor applied for school- 
 house, &c., 501. 
 SCIRE FACIAS, 663. 
 SCOTLAND, 
 
 Equities in respect of lands in, ad- 
 ministered here, 48 ; but see 53 
 and Jurisdiction, 
 Executors here not bound to know 
 
 the law of, 367. 
 Thellusson act, Scotland is excepted 
 from, 120. 
 SECRET TRUSTS, 
 
 discovery of, where enforced, 70, 72, 
 
 73 ; see Devisee ; Heir. 
 as to, under deed enrolled under 9 
 Geo; 2, c. 36, 132. 
 SECURITIES, 
 
 For money, gift of in wiU may pass 
 
 mortgage in fee, 264. 
 Negotiable, where they may be fol- 
 
 lowed, 275, 759. 
 SECURITY. See Investment. 
 
 Agent, trustee not called upon to 
 
 require from, 295. 
 Tenant for life of renewable lease- 
 holds, what he gives where fine 
 paid by remainderman, 398, 400, 
 402. 
 Trustee required to give for due exe- 
 cution of trust, 723. 
 Vary, power to, 523 ; a "usual pow- 
 er," 164. 
 SEISIN, 
 
 Infants of, ex parte maternO, of.lease- 
 holds may be changed to seisin ex 
 parte paterna, 831. 
 Ex parte maternfi, 680. 
 Equitable, 617; what required to 
 
 give curtesy, 617, 622, 623. 
 possessio fratris of a trust, 618, and 
 see note (e). 
 SELECTION, 
 power of, 22, 542, 701, 705, 706, 
 note {n). 
 SEPARATE USE. See Feme Covert. 
 SEQUESTRATION, 
 
 of rents ordered where tenant for 
 life of renewable leasehold refuses 
 to renew, 402, 722. 
 SET-OFF. See 334. 
 
 where bankrupt trustee (indebted to 
 trust) has beneficial interest, 772 ; 
 conf. 771. 
 SETTLED, 
 
 account opening against solicitor 
 trustee, 550. 
 SETTLEMENT, 
 
 Equity to. See Feme Covert. 
 Executory trust, what directed under. 
 
 See Executory tnists. 
 Postnuptial, executory trusts in, con- 
 strued as in wills, 164. 
 Of realty, usual frame of 404. 
 eff"ect of usual power of sale in, 417. 
 re-settlement of estate, 409. 
 object of limitation to trustees to 
 preserve in 404, 405. 
 Rectification of, how far by means 
 of articles, 148. 
 not when settlement executed prior 
 
 to marriage, 148. 
 unless stated to be made in pur- 
 suance of articles, or where mis- 
 take, 148. 
 semble not against a purchaser, 
 148, note {y). 
 Separate use of feme covert for ; see 
 
 Feme Covert. 
 Voluntary, of lands or chattels real 
 (butnot of personalty), defeated 
 by subsequent sale by settlor, 92.
 
 INDEX. 
 
 803 
 
 SETTLEMENT, continued. 
 
 of any property void as against 
 
 creditors, if settlor indebted at 
 
 the time, 93 ; see Voluntary 
 
 Settlement. 
 
 SETTLOR, 
 
 Legal estate becoming re-vested in, 
 
 will not defeat trust, 99. 
 Whether he can claim benefit on 
 
 failure of c. q. t. 323. 
 Who may be, c. in. s. 1, p. 24. See 
 also Alien, Bankrupt, Crown, 
 Corporation, Feme Covert, Hus- 
 band, Infant, Insolvent, Lunatic; 
 and as to Felon, Outlaio, Traitor, 
 see 28. 
 SEVERANCE, 
 
 of trusteeship, 579 ; of estate from 
 powers, 535. 
 SHARE, 
 aliquot, payment of into court some- 
 times ordered, 865. 
 c. q. t., of suing, who should be par- 
 ties, 850 : see 856. 
 SHARES, 
 
 Charging order under 1 & 2 Vict. c. 
 
 110, its effect, 669. 
 Companies, in restraining order un- 
 der 5 Vict. c. 5, s. 4, applicable 
 to, 860, 863. 
 in canal, insurance, railway com- 
 panies, &c., when to be convert- 
 ed, 812. 
 Purchase of, by trustee, 469. 
 SHELLEY'S CASE, 
 
 rule in, applicable to trusts executed, 
 142. See Executory trusts (heir 
 of body). 
 SHIP, 
 
 no resulting trust on purchase of, in 
 
 stranger's name, 203. 
 registry acts do not apply to trans- 
 fers by mere operation of law, 203. 
 SICILY. See Jurisdiction. 
 
 whether trusts of laud in, can be en- 
 forced here, 54. 
 SIGNATURE, 
 
 required for delegation of trust, 64 ; 
 by whom, 65. 
 SIMONY, 
 
 direction to purchase next presenta- 
 tion in favour of person a designata 
 falls within, 136. 
 SIMPLE CONTRACT DEBTS. See 
 Breach of trust. 
 Lands of trustee trading, liable to 
 
 under Sir S. Romilly's Act, 273. 
 Money to be converted into land was 
 
 not formerly liable to, 796. 
 Real assets they are now payable 
 out of, 239, 273, note (Z), 285, 435. 
 
 as to devise for payment of debts, 
 see 474. 
 Trusts for, debts, how paid under, 
 484, 488; and see 843, and 
 Debts. 
 interest on, not allowed, 489 ; but 
 see 490, note (g). 
 SIMPLE INTEREST, 
 
 usually charged for improper retain- 
 er of trust money, 359, 361. 
 SIMPLE TRUST. See Special trust. 
 explained, 2, 21. 
 
 in what the c. q. t.'s estate consists, 
 c. xxii. s. 1, p. 585. 
 SOLICITOR, 
 
 Breach of trust, if he wilfully advi- 
 ses or concurs he may be struck 
 off the Roll, 763, note (s). 
 effect of, in negotiating loans, &c., 
 358. 
 Borrower of, undesirable for lender 
 
 to employ, 358. 
 c. q. t. of, whether he can author- 
 ize trustee to purchase, 464. 
 Constructive trustee, case where so- 
 licitor violating his duty held to 
 be, 226. 
 Purchase in name of son (a solici- 
 tor), held not an " advancement" 
 from the relation of solicitor, 
 216. 
 Security to for professional charges 
 
 set aside, when, 550. 
 Settled account, containing profes- 
 sional charges opened against, 
 550. 
 Trustee, solicitor of, has no lien on 
 trust fund, 561 ; taxation against 
 at instance of e. q. t., 558, note 
 (/), 561, note (g). 
 Trustee who is, cannot charge for 
 time and trouble, but only for 
 costs out of pocket, unless 
 where special contract, 320, 
 549 ; as to nature of contract, 
 see 553 ; rule same where co- 
 trustee is one of a firm, 320, 
 549. 
 proportion of costs allowed to 
 country solicitor (executor) de- 
 fending suit by agent, 320 ; co- 
 trustee and solicitor acting in 
 a suit for himself and co-trus- 
 tees, ib. ; none allowed to single 
 trustee defending himself by his 
 partner, ib., and see 550. 
 SOUTH SEA, 
 
 stock and annuities, 341, note ip). 
 SOVEREIGN. See Croion. 
 
 Declaration of trust by or to, 25,59, 
 Will of, as to private property, 25.
 
 804 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 SPECIAL, 
 
 Case, 3G8. 
 Conditions, 423. 
 
 Occupant, heir taking as, may dis- 
 claim, 232. 
 Trust, nature of, 4, 21 ; must be 
 lawful, 599. 
 ia what c. q. t.'s estate consists, c. 
 
 X5II. s. 2, 597, et seq. 
 how converted into simple trust, 
 
 597. 
 proceeds till countermanded by c. 
 
 q. t., 598. 
 Uses, Stat, of, is not within, 24C, 
 247. 
 SPECIALTY. See Breacli of trust, 
 Simj')le Contract Debts. 
 heirs where bound by, 238, 239 ; see 
 692, 765. 
 SPECIALTY CREDITOR, 
 
 devise avoided against, 239, 474. 
 trusts for payment of debts, his 
 claim under, 484, 488; for interest 
 on, 491. 
 SPECIE, 
 
 where presumed that leaseholds, &c., 
 though bequeathed in succession, 
 are to be enjoyed in, 809. 
 SPECIFIC, 
 
 Bequest, distinguished from direc- 
 tion to enjoy in specie, 812 ; and 
 and see note {g). 
 Charges on realty, persons having, 
 
 where necessary parties, 843. 
 Performance, costs of trustee in, 
 421, 872. 
 enforced, is not, against trustees 
 who have sold improperly, 415; 
 whether where hardship, 424. 
 laches in suit for, effect of, 742. 
 lands abroad, as to, when enforced, 
 
 47. 
 parties to suit for, 844 ; and see 
 
 842. 
 person who has made a previous 
 voluntary settlement cannot en- 
 force against purchaser, 93 ; 
 but purchaser may enforce, ib. 
 Trustees' Acts, provision for under 
 Trustee Acts, 839, and see 894. 
 voluntary contract of not enforced, 
 93, 94 ; and see Covenant. 
 SPIRITUAL COURTS, 
 
 have no jurisdiction of trusts, 19, 
 261 ; and see Prohibition. 
 SPORTING, 
 
 trustees not entitled to where it can 
 
 be let, 318. 
 qualification of c. q. t. for, under 
 old law, 593. 
 STATUTES. See Frauds, Stat, of; 
 
 Limitations, Stat, of; Wills, Stat, 
 of; Trustee Acts ; Trustee Belief 
 Acts, and Index of Statutes. 
 STATUTE MERCHANT, 
 tenant by, bound by a trust, 11. 
 lien of, 689. 
 STEWARD, 
 
 of manor. See Infant. 
 trustee appoints but must observe 
 direction of c. q. t., 269. 
 STOCK. See Payment into Court. 
 Charging order under 1 & 2 Vict. c. 
 
 110, 642, 649, 669, et seq. 
 Co-executors, transfer by, 315. 
 Creditor, how available to, see 
 
 Charging order, sup. 
 Devises of, statutes relating to, 32, 
 
 note (1). 
 Distringas, writ of, applicable to, 
 
 860, et seq., 863. 
 Dividends, c. q. t. put in possession 
 
 by power of attorney, 594. 
 Executors' assent to bequest, effect 
 
 of, 32, note (1). 
 Private company, trust money must 
 not be invested upon stock of, 341; 
 bank stock, south sea stock, ib. 
 Public investment upon, 351 ; see 
 354. 
 case of trustees impropei-ly sell- 
 ing out, 356. 
 secus where power to do so, 344. 
 neglect to purchase, 764. 
 Restraining order, under 5 Vict. c. 5, 
 s. 4, 860, 863. 
 STOP ORDER, 
 
 petition for on whom it should be 
 
 served, 614, note [1). 
 priority given by, 613, 614. See 
 Notice. 
 STRANGER, 
 
 Advancement for, whether presumed 
 when purchaser has placed him- 
 self in loco parentis, 216. 
 Purchase in name of, where it cre- 
 ates resulting trust, see Pur- 
 chase. 
 parties to suits respecting trust by 
 or against, 841, et seq.; and see 
 Parties. 
 SUBPCENA, 
 origin of, 1. 
 SUIT. See Costs, Decree, Parties. 
 Barred by lapse of time, when ; see 
 
 Limitation. 
 Collusive, 429. 
 
 Decree in, takes administration from 
 trustee, 414, 429, 436, 523; and 
 see 524, 544. 
 Trustee for protection of, 367. 
 appeals at his own risk, 368.
 
 INDEX. 
 
 805 
 
 SUIT, continued. 
 
 should see that proper parties 
 
 are before court, 368. 
 sustain rather than originate, ib. 
 for removal of, 710, I'll ; and see 
 582, et seq. 
 SUPPLYING WORDS, in articles, 
 
 153, and see 191, 250. 
 SURRENDER. See Copyholds, Cus- 
 tomary Freeliolds. 
 SURVEYOR, 561. 
 SURVIVORSHIP. See Feme Covert, 
 Chiardian. 
 Administratorship or executorship, 
 of, 300. 
 not of bare power, 299, 536 ; or 
 committeeship of lunatic, 299. 
 Power of sale of, in mortgage, 419. 
 Powers of trustees, 536. See Pow- 
 ers. 
 Trust of, 299 ; even where power to 
 
 appoint new trustees, 301. 
 Trust for sale of, 300, 419. 
 
 TACKING. See Mortgage. 
 TAXES. See Bates. 
 TECHNICAL, 
 
 terms, how far necessary for crea- 
 tion of express trusts, 140. 
 their force when employed, 141 ; 
 and see Executori/ trusts. 
 TENANCY IN COMMON. See 
 Joint tenancy. 
 Elect, how far tenant in common 
 
 can, 818. 
 Implied in case of joint loan, 201 ; 
 or where two possessed of mort- 
 gage term purchase equity of re- 
 demption, 202 ; in joint purchase, 
 where purchasers contribute une- 
 qually, 202 ; or in joint undertak- 
 ing in trade, 202. 
 Mortgagee, tenant in common of 
 
 equity of redemption, 733. 
 Presumption of ouster between equi- 
 table tenants in common, 735, note 
 (1); but see 747. 
 TENANT AT WILL, 
 c. q. t. is to trustee, 586, 590. 
 or by suffei-ance renewal of lease by 
 his executor, 219. 
 TENANT FOR LIFE, 
 
 Breach of trust reaping fruits of, 
 
 how he contributes, 768, et seq. 
 
 participating in, his interest may 
 
 be stopped for compensation, 
 
 771. 
 
 Chattels or heir-looms as to, his 
 
 rights, 593, 594. 
 Conversion income accruing before, 
 his proportion in, 813. See 
 
 Conversion (income), 
 having received whole income, 
 when conversion proper, liable 
 to refund, 353. 
 Costs, he l)ears of suit instituted for 
 relinquishment of trust by trustees 
 on account of incumbrances by 
 him, 584. 
 Dividends, how put in possession of, 
 
 594. 
 Feme covert, as regards equity to 
 
 settlem'ent of wife, who is, 370. 
 Forfeiture by, 678. 
 Improvements and repairs, 514. 
 Powers, whether having sold or 
 mortgaged his estate, he can ex- 
 ercise, appoint new trustees, 580. 
 Real estate, of his rights, 586, et seq. 
 Renewable leaseholds of, 
 
 fines entitled to on underleases, 
 
 392. 
 fines, apportionment of between 
 prior remainderman, and contri- 
 bution, how secured, 395, 398 ; 
 and see Reneivable Leaseholds. 
 liability in case of neglect to re- 
 new, 392 ; see 383. 
 refusing to renew, 402, 722. 
 regarded as trustee for renewal, 
 
 when, 402. 
 renewing is trustee for those in re- 
 mainder, 218, 384. 
 Trust for sale, he may buy under 
 though his consent necessary to 
 sale, 462. 
 Title deeds, whether entitled to, 591, 
 
 592, note {v). 
 Use of his power under 1 Rich. 3, c. 
 1, 601 note {/) ; see 227, in pos- 
 session. 
 Waste by, 225, 514. See Waste. 
 TENANT IN TAIL. See Uses. 
 Assignment q/" his equitable interest, 
 
 601, et seq. 
 Election by, 819, et seq.; see Elec- 
 tion. 
 Equitable, he cannot require trustee 
 
 to convey legal fee, 595. 
 Forfeit his estates, he cannot, by 
 disseising the remainderman of 
 an equitable interest, 560. 
 TENANT TO PRAECIPE, 412 ; see 
 
 404. 405 ; Equitable, 604. 
 TENANT YEARLY,renewal of lease 
 
 bv 219. 
 TENANT RIGHT, 225. 
 TENDER, 
 
 of conveyance, under Lord St. Leo- 
 nards' Trustee Act, 837, note (a). 
 TERM, 
 attendant. See Attendant term.
 
 806 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 TERROR, 
 
 confirmation must not be obtaiaed 
 by, 473, 778. 
 TESTAMENTARY DISPOSITION. 
 
 See Will. 
 THELLUSSON ACT, 112, et seq. 
 See Ireland, Scotland. 
 Accumulation can be for one only 
 of the periods allowed by sta- 
 tute, 113. 
 commencing after testator's death, 
 must end at 21 years from such 
 death, 113. 
 trust exceeding limits is good pro 
 
 tanto, 113, 114. 
 Act applies to simple and com- 
 pound accumulation, and where 
 enjoyment suspended, though 
 right vested, 113. 
 whether act applies where accu- 
 mulation only implied by instru- 
 ment of trust, 115, 116. 
 Exceptions from the act, and their 
 
 construction, 119 ; see 120. 
 Excess, to whom it belongs, IIG, et 
 seq. 
 resulting for heir, when it devolves 
 as personalty, 118. 
 Subsequent limitations not accele- 
 rated, ib. 
 Wills Act, under, void accumulations 
 of realty go to residuary devisee, 
 of personalty to residuary lega- 
 tee, 118; and where residue is 
 settled form capital, ib. 
 void accumulations from residue 
 itself result, if realty to heir, if 
 personalty to next of kin, ib. 
 TIMBER, 
 
 Account of, in equity on legal title 
 without injunction, qu. 753, note. 
 On infant's estate, see Infant. 
 On lunatic's estate, see Limatic. 
 Trustees may not buy wood estate 
 in favour of tenant for life, sans 
 waste, their power to cut, 515; 
 ■with power of sale, may not sell 
 separately from estate, 421. 
 TIME, 
 Bar from. See Laches, Limitation 
 
 of Suits. 
 Trust for sale, "within what it should 
 be executed, 415 ; and see 419, 
 420, 429, 436, 458. 
 Trustee not entitled to any allowance 
 for his time, 545 ; and see Trouble, 
 TITHES, 
 
 account of, in equity on legal title, 
 753, note. 
 TITLE, 
 
 power of vendor to sign receipt for 
 
 purchase money, a matter of, 430. 
 trustee for sale bound to make a 
 good title, 421. 
 TITLE DEEDS, 
 
 Custody of, who entitled to, where 
 legal estate in trustee, 591, 
 592. 
 where all estates legal, 592, note 
 
 [V). 
 
 Holder of, how far a constructive 
 trustee for remainderman or part 
 owner, 227, 228. 
 Purchaser, if not delivered to assig- 
 nees, must give attested copies, 
 and covenant for production, 425. 
 TORTIOUS, 
 
 Conversion of trust property, 275, 
 754,825 ; and see Conversion, Fol- 
 low. 
 Sale of land by trustee, 763. 
 of stock by trustee, 356. 
 TRADE, 
 
 Allowance for management is given 
 to constructive trustee, 548 ; secus 
 as to express trustee, 549. 
 Bank, money lodged in to executors' 
 account considered to be traded 
 with, 361. 
 Following trust, property employed 
 
 in, 760. 
 Tenancy in common implied on joint 
 
 advance for, 202. 
 Trustee employing trust money, 
 charged at option of c. q. t. 
 with profits, 361, 362, see 319; 
 or with interest at 51. per cent. 
 362. 
 whether with compound interest, 
 362, 363. 
 TRADER. See Bankrupt, Debts. 
 TRANSMUTATION OF POSSES- 
 SION. See Voluntary Assu- 
 rance. 
 where there is, the trust though 
 voluntary will be enforced, 81, 
 99. 
 and where there is not, if trust be 
 perfectly created, 81. 
 TRAVELLING, 
 
 Expenses, trustee allowed when pro- 
 per, 557. 
 TREASON, 28. See Forfeiture. 
 TROUBLE. See Trade. 
 
 Allowance, none for to trustees gen- 
 erally, 545. 
 nor to committees of lunatics, ex- 
 ecutors, mortgagees, receivers, 
 &c., 546; and" see Solicitor. 
 Commission, whether allowed to exe- 
 cutor in East Indies, 547 ; and 
 see note (/i).
 
 I X D E X. 
 
 807 
 
 TROUBLE, continued. 
 
 ■wlieu to trustees of West India es- 
 tates, 546. 
 Contract, whether trustee may, with 
 c. q. t. for allowance for, 551, 
 et seq. 
 must be fulfilled to the letter, 553. 
 trustee may, with court, before ac- 
 cepting trust, 553, et seq. 
 whether mortgagee may, for allow- 
 ance, 556. 
 Settlor may direct the trustee an al- 
 lo\vance, 550. 
 it will not cease on institution of a 
 
 suit, 551. 
 amount where not known, settled 
 by reference, 551. 
 TRUST. See Abroad, Advowson, 
 Alien, Breach of trust, C. q. t., 
 Feme Covert, Infant, Overseers, 
 Trustee, Will. 
 Accumulation for, 110, et seq.; see 
 
 Accumulation, Thellusson Act. 
 Alienation, restriction of, not allow- 
 ed by way of trust, 132 ; but see 
 123. 
 Averrable at common law, 56. 
 Charitable or public trusts, 23 ; see 
 
 Charities. 
 Classified, c. ii., p. 21. 
 Consideration for, 81, et seq.; see 
 Consideration, Covenant, Volun- 
 tary Assurance. 
 Construction of, 141, et seq. ; see 
 
 Construction. 
 Constructive, c. ix., p. 217 ; distin- 
 guished, 140, note (1) ; see Con- 
 structive trusts. 
 Contingent remainders, for preserv- 
 ing, c. XV., p. 404. See Contin- 
 gent Remainders. 
 Created, how ; see Creation of trusts. 
 Creditors for, c. xvii., p. 474; see 
 Debts. 
 cannot be defeated by means of 
 trust, 132, et seq. 
 Declared, how trusts may be, 56, et 
 
 seq.; see 62, 65. 
 Defined, 15. 
 Delegation of, not permitted, 290, 
 
 et seq. ; see Delegation. 
 Discretionary, 21; see Discretion- 
 
 ari/. 
 Duration of, 23, 103, 111. _ 
 Enforced, where consideration valu- 
 
 al)le or if perfectly created, 81. 
 Estate tail in, 46, 004. 
 Executed and executory distinguish- 
 ed, 144; see Execidori/ trusts. 
 Express, c. vii., p. 140 ; within Stat. 
 of Limitation, 745, 748 ; see Ex- 
 
 jyress tnists. 
 Frauds, Stat, of, how it afi"ects trusts, 
 c. V. s. 2, p. 60. See Frauds, Stat. 
 
 of- 
 Imperfect, p. 81, et seq. 
 Implied, c. vii. s, 2, p. 167, et seq. ; 
 
 distinguished, 140, note (1). 
 Instrumental, explained, 21. 
 Intention will be followed, where 
 
 lawful, 44, 100, 103. 
 Lawful, ■".. VI. s. 1, p. 103 ; see 22 ; 
 
 and Uhlaivful trusts. 
 Law, by operation of, 140, note (1); 
 
 see Operation of Law. 
 Limitation of, compared with legal 
 
 limitation, 44, 103, et seq. 
 Ministerial, explained, 21. 
 Money followed into land, 206, 762 ; 
 
 see 753, et seq. 
 Mortmain in, 132. See Mortmain. 
 Nature and origin of, 1 ; of modern 
 trust, 8. 
 administered at first on the princi- 
 ples of uses, 9 ; afterwards 
 treated as an estate, 11, 12. 
 Objects of, c. VI., p. 103. 
 Parol, as to chattels personal, 61 ; 
 
 but see 66. 
 Perfect, 81, et seq.; see Considera- 
 tion, Voluntary Assurance. 
 Perpetuity cannot be created by, 23, 
 
 110, 132 ; but see Public trusts. 
 Powers, distinguished from, 22, see 
 
 536, 701, et seq. 
 Precatory, 167, et seq. ; see Implied 
 
 trusts. 
 Principles governing at present day, 
 
 13. 
 Properties of, in analogy to legal 
 estates, c. xxiii. p. 600. 
 assignment of a trust, 600, et seq. ; 
 assets, a trust as, 681, et seq. ; 
 curtesy and dower of a trust, 
 621, et seq. ; descent of a trust, 
 680, et seq. ; devise of a trust, 
 615 ; escheat, whether it affects 
 a trust, 678 ; extents from the 
 crown against a trust, 673, et 
 seq. ; feme covert, her estate in 
 a trust, 627, et seq. ; forfeiture 
 of a trust, 674 ; judgments, how 
 they affect trusts, 646 ; seisin 
 and disseisin of a trust, 617 ; 
 and see these Titles. 
 Property, what may be made the 
 
 subject of a trust, c. xiv. p. 45. 
 Public explained, 23. 
 Recommendation, whether raised by, 
 
 102; see 168. 
 Renewable leaseholds of, c. xiv. p. 
 383 ; see licneicable Leaseholds.
 
 808 
 
 LEWIN ON THE LAW OF TRUSTS, ETC. 
 
 TRUST, continued. 
 
 Resulting, c. viii. p. 176 ; see ^e- 
 suUing trusts. 
 
 Sale, c. XYi. p. 414 ; see Sale, trus- 
 tees for. 
 
 Secret, 71, et seq., 132; see Heir, 
 Devisee. 
 
 Separate use of, feme covert for, 
 120, et seq., 631, et seq. ; see 
 Feme Covert. 
 
 Settlor, who may be, c. iii. s. 1, p. 
 24 ; see Settlor. 
 
 Simple, 2, 21, 585, et seq.; see 597. 
 
 Special, 2,21, 597. 
 
 Stat, de donis, not within, 603. 
 
 Survivorship of, 299 ; see Survivor- 
 ship. 
 
 Unlawful, 22, 131, 599; see Unlaw- 
 ful trusts. 
 
 Uses, Stat, of, special trusts not 
 within, 8, 247. 
 
 Voluntary, 81,101; see Debts, Volun- 
 tary Assurance. 
 
 "Word " trust" may raise a trust, 1G8. 
 TRUSTEE. See Acceptance, Acci- 
 dent, Breach of trust, Charities, 
 Constructive trust, Contingent Re- 
 mainder, Corjjoration, Costs, Co- 
 trustees, Debts, Disclaimer, Dower 
 trustee, False, Forgery, Fraud, 
 Implied trust. Indemnity, Insol- 
 vent, Insurance, Investment, Judg- 
 ments, Lien, Misconduct, Mistake, 
 Neglect, Notice, Quasi-trustee, Re- 
 ceij)t, Sale, Solicitor. 
 
 Actions, where to be brought in his 
 name ; see Actions. 
 
 Accounts, he must be ready with, 
 599; and see 427, 559. 
 
 Advantage, shall not derive from 
 trust, 318 ; see Advantage, but see 
 Failure of c. q. t. 
 
 Allowances to, c. xx. 545 ; see Costs, 
 Expenses, Trouble. 
 
 Bankruptcy of, 273, 287, 711, 714, 
 771, 854; see Bankruptcy. 
 
 Bare, see 318, 460, 536. 
 
 Bare equity of, 596, 848. 
 
 Burdens of, 268, et seq., 271. 
 
 Claim adversely to c. q. t., trustee 
 must not, 325; see 878. 
 
 Conveyance by, at request of e. q. t., 
 595 ; of assignee of c. q. t., 
 600. 
 on sale, 424, et seq. ; see Con- 
 veyance. 
 
 Custody of trust chattels by, 332. 
 
 Delegation, may not make, of his 
 office, 290 ; see Delegation. 
 
 Disability of; see Sale, Trustee 
 Acts. 
 
 Discharge of, how obtained ; see In- 
 demnity, Release, Relinquishment. 
 Distribution of trust fund by, 3G5, 
 
 et seq. 
 Duties, how compelled to observe, 
 
 718, 723 ; and see Duties. 
 Failure of, remedy of c. q. t. against, 
 
 c. XXIV. p. 693. 
 Injoined, may be against breach of 
 
 trust, 723. 
 Laches of, its effect as to right of c. 
 
 q. t., 719, et seq.; see Laches. 
 Legal estate in its devolution, pro- 
 perties and quantity taken by 
 trustee, c. xi. p. 246 ; see Legal 
 Estate. 
 Liability of; see Co-trustees, Liabi- 
 lity. 
 New, appointment of ; see Neio trus- 
 tees and Trustee Acts. 
 Number of, what is proper, 40, 41, 
 
 710 ; see Number. 
 Outstanding trust estate he should 
 
 get in, 326. 
 Payment by, 372 ; see Payment, Re- 
 ceipts. 
 Possession of trust estate, how he 
 may obtain in court of law, 324, 
 590. 
 Powers of, general, 512 ; special, 
 
 524 ; and see Powers. 
 Privileges and burdens of, 268, et 
 
 seq. 
 Purchase of trust estate by, 460, et 
 
 seq.; see Sale, trustees for. 
 Receiver, he cannot be of trust es- 
 tate, 319. 
 Release by or to, 373, et seq. 
 Relinquishment of office, c. xxi. p. 
 
 565 ; see Relinquishment. 
 Renewal of lease by, 383, 392 ; see 
 
 402. 
 Suit by, 367, 582, 768, 846, 850. 
 Tort of, see 755, 825. 
 Who may be, c. iii. s. 2, p. 30. 
 alien may be, of chattels personal, 
 but not of freeholds or chattels 
 real, 39; bank of England can- 
 not be, 32 ; bankrupts and in- 
 solvents not absolutely disquali- 
 fied, 40, see 711 ; c. q. t. or re- 
 lative generally undesirable, 40, 
 579 ; corporation maybe, except 
 where in contravention of Sta- 
 tute of Mortmain, 31 ; crown 
 may be, but qu. as to remedy of 
 c. q. t., 30 ; feme covert or sole 
 may be, but undesirable, and 
 why, 34, 35, see 710; infant 
 ought not to be appointed, 35, 
 895, note (m) ; person domiciled 
 
 i
 
 INDEX. 
 
 809 
 
 TRUSTEE, continued. 
 
 abroad generally not a fit trus- 
 tee, 40 ; and see 574, 57G, 710. 
 Words " trustee," " trustee of inheri- 
 tance," construction of, in devise, 
 250. 
 'TRUSTEE ACTS, Generally, c. 
 XXVIII. p. 832. 
 Construction of, 
 7 Anne, c. 19, infancy (as to lands), 
 
 832, 833. 
 4 Geo. 2, c. 10, lunacy (as to lands), 
 
 833. 
 3G Geo. 3, c. 90, infancy, lunacy, &c. 
 (as to stock), 833, 834. 
 amended by 1 & 2 Geo. 4, c. 114, 
 834. 
 6 Geo. 4, c. 74, consolidating and 
 
 extending previous acts, 834. 
 Lord St. Leonards^ Trustee Act, 11 
 Geo. 4, & 1 W. 4, c. 60, 834, et 
 seq. 
 sections relating to infants (as to 
 land), 835. 
 to lunatics (as to land and 
 
 stock), 834, 835. _ _ . . 
 to persons out of jurisdiction, 
 &c. (as to land), 835 ; (as to 
 chattels real,) 837 ; (as to 
 stock, &c.), 838. 
 mode of application to court, 839, 
 
 notes (i) and [k). 
 cases of constructive trusts, speci- 
 fic performance, trustee having 
 interest, 839. See Trustee Act, 
 ss. 2, 30. 
 Tnistee Act, 1850, and Extension 
 Act, 840 ; in extenso, 880, et seq. 
 Colonies, as to, ss. 54, 56. 
 Contingent rights ; see ss. 4, 8, 11, 
 
 12,16,18. 
 Conveyance under, 889, note [t), see 
 895, note {q) ; as to copyholds, 
 893, note (/) ; see s. 30. 
 of legal estate sufficient where all 
 parties before the court, 881, 
 note (6). 
 Costs under, generally, 901, note («) ; 
 infant trustee, &c., ib. 
 in case of lunatic mortgagee or 
 trustee, 883, note (0 ; of sale, 
 903, note (c). 
 Decree for conveyance, exchange, 
 partition, sale, specific perform- 
 ance, under, 893, 903 ; see see. 30. 
 Difficulty or expediency of appoint- 
 ing new trustees, &c., 895, notes 
 (m), (n), (o). _ 
 
 Durham and Lancaster, lands m, s. 
 
 21. 
 Evidence on petition, 895, note (j)) ; 
 May, 1858.— 52 
 
 of trustees' assent of trustees' fit- 
 ness, ib. ; and see 890, note [w], 
 Orders, inf. 
 Existing trustee, where none, court 
 may appoint new trustees, see 
 895, note {p) ; Extension Act, s. 9. 
 Infant trustee or mortgagee, ss. 7, 
 8 ; Extension Act, s. 3 ; see 894, 
 note [k], 895, note (m), 901, note 
 (a). 
 Ireland; see ss. 55, 56, p. 901 ; see 
 
 note (c). 
 Jui-isdiction, trustee out of, ss. 9, 19, 
 
 11, 12, 22; mortgagee, s. 19. 
 Lunatic, personal representatives, s. 
 6 ; trustee or mortgagee, see ss. 3, 
 4, 5, 6. 
 Mortgagee, see ss. 4, 5, 7, 8, 19. 
 Number of trustees appointed by 
 
 court, 895, note (jj). 
 Orders made under by court, on alle- 
 gation evidence thereof, s. 44. 
 Petition, who may present, 896 ; in 
 case of sales, see note [t] ; in lots, 
 903, note (c) ; service of, 897, note 
 {v) ; and see 890, note {tv) ; 891, 
 note (a). 
 Refusing trustee, ss. 23, 24 ; Exten- 
 sion Act, ss. 2, 4, 5 ; mortgagee, 1 9. 
 Scotland, Trustee Act does not ex- 
 tend to, s. 54; see s. 56. 
 Unborn trustee, s. 16. 
 Unknown heir, &c., of trustee, 13, 
 
 14, 15, 22 ; of mortgagee, 19. 
 Vesting order, see ss. 26, 27, 28, 35 ; 
 Extension Act, s. 2 ; as to copy- 
 holds, 893, note (e) ; 904, note 
 {d) ; chose in action, s. 27. 
 in devisees of mortgagor subject 
 to charge, 884, note (k) ; to uses 
 to bar dower, ib. 
 as to estate tail, 885, note (?). 
 in new and continuing trustees as 
 
 joint tenants, 896, note (r). 
 as to stock, 896, note (•?), 905, 
 note ig). 
 TRUSTEE RELIEF ACTS. See 
 Lunatic (Majority). 
 10 & 11 Vict. c. 96, p. 375, et seq. ; 
 General Orders under, 379, 381 ; 
 Amendment Acts, 12 & 13 Vict, 
 c. 74, p. 381 ; and as to money, 
 &c., belonging to charitv, see IS 
 & 19 Vict. c. 124, s. 22, p. 382. 
 affidavit by trustees, 379, 376, note 
 
 (s) ; Petition, inf. 
 application by petition (not motion, 
 nor in the first instance at cham- 
 bers.) 378, note (?/). 
 account, heading' of, 376, note (?<) ; 
 and see note \t).
 
 810 
 
 LEWIN ON THE LAW OF TRUSTS, ETC 
 
 TRUSTEE RELIEF ACTS, continu- 
 ed. 
 costs of trustees, 376, note {s) ; 378, 
 note (?/) ; 380, note («) ; see 
 
 377, note {x). 
 
 out of what fund, 380, note (a). 
 
 on petition by tenant for life for 
 payment of dividends, ib. 
 discharge, how far payment into 
 
 court is, 377, note {x). 
 inquiry or issue, court may direct, 
 
 377, note {iv), 378, note (z). 
 payment into court, after, proceed- 
 ings must be under the act, 376, 
 
 note (;•) ; see also 377, notes {v) 
 
 and («•). 
 petition, trustees can, but should 
 not, present, 378, note {y). 
 
 by claimant in forma pauperis, ib. 
 
 how far it should set out affidavit 
 of trustee, 378, note [ij). 
 
 what order may be made upon, 
 
 378, note (>/). 
 
 service on trustee, 380, note {a) ; 
 on claimant, 381, note (6). 
 
 subject matter of payment or trans- 
 fer, what may be, 375, et seq., 
 375, note (c). 
 suit, when directed, 378, note (?/). 
 
 UNCERTAINTY, 
 
 Implied trusts not raised where it 
 exists, 168. 
 of objects of trusts, 169 ; of sub- 
 ject matter of trust, 170. 
 Resulting trust, on conveyance where 
 trusts too vague, 181. 
 UNDER-LESSEES, 
 
 fines of, 392. 
 UNFITNESS, 
 
 of trustee, 574, 710, 711. 
 UNLAWFUL TRUSTS, 
 
 C. Ti. s. 2, p. 131 ; and see 22, 71, 
 
 73,182,599. 
 Alien for, 132 ; alienation (restraint 
 against,) 132, et seq. ; charity for, 
 132 ; chattels, limitations of, 131 ; 
 corporation for, 131. 
 illegitimate child (future), 131 ; 
 maintenance, 133; simony, 136; 
 splitting votes, 137 ; and see those 
 titles and Cohabitation, Mort- 
 main, Secret Trusts. 
 Consequences of creating, 137. 
 estate may be recovered by person 
 claiming under settlor, 138 ; or 
 by settlor himself, where no 
 fraud, 139 ; otherwise court will 
 not interfere, 137, et seq. 
 USAGE, 
 
 how far evidence in construction of 
 
 religious trust, 497. 
 USE, 
 
 Averrable, 56 ; but not where deed 
 required to pass estate, 57 ; and 
 see 6, note (1). 
 
 Charitable. See Cliaritahle Uses. 
 
 Defined, 2. 
 
 Devisable before statute, 615. 
 
 Disclaimer of, 236. 
 
 Estate on which it could be declar- 
 ed, 5 ; whether on a feoffment in 
 tail, 5 ; and see 7, note (1) ; whe- 
 ther upon an estate for life, 5, 6, 
 note (1), 7, note (1). 
 
 Executed under statute, whether de- 
 signated as trust or use, 246, 254. 
 
 Powers before Statute of Uses, 537, 
 note (1). 
 
 Trusts, special, and of chattels ex- 
 cepted from, 7, 247. 
 USUAL POWERS, 
 
 what powers authorized by these 
 words, 164, note (x), 165. 
 
 how qualified by context, 165. 
 
 VALUATION, 
 how trustee for sale should make, 
 421. 
 VALUE. See Consideration, Invest- 
 ment. 
 VARY, 
 
 power to vary securities, 523 ; see 
 
 169. 
 whether it implies power to give re- 
 ceipts, 523 ; a " usual power," 
 164. 
 VENDOR, 
 a trustee sub modo for purchaser, 
 
 175. 
 accountable to purchasers for rents, 
 &c., unhusbandlike farming, wil- 
 ful waste or neglect, 174. 
 VESTING ORDER. See T)-usiee 
 
 Acts. 
 VESTRY, 109. See ParisJiioners. 
 VISITOR, 
 
 Crown is in civil corporations, by 
 Court of Queen's Bench, 495. 
 may be in eleemosynary corpora- 
 tions, by terms of foundation, or 
 where heir of founder unknown 
 or lunatic, 495. 
 visitatorial power committed to 
 lord chancellor, 495. 
 Office of, he must follow statutes of 
 the founder, 492. 
 whether his decision can be ap- 
 pealed against, 492. 
 new donations distinguished, in 
 respect of visitatorial power 
 from original endowment, 493.
 
 IXDEX. 
 
 811 
 
 VOID. See Infant, Lunatic. 
 Accumulation. See Accumulation, 
 
 Thellusson Act. 
 Trust. See Duration, Mortmain, 
 Perxietuity, Uncertainty. 
 VOIDABLE. See Infant, Lunatic, 
 
 Voluntary Settlement. 
 VOLUNTARY AQREEMENT. See 
 Covenant, 
 not specifically executed tlaough 
 under seal, 93, 94, and comp. 207. 
 how far provable in equity as a debt, 
 94: note ie). 
 VOLUNTARY 'assurance. See 
 Consideration, Meritorious. 
 Trusts supported if perfectly created, 
 81. 
 not perfectly created when further 
 
 act intended, 81. 
 once perfectly created is not sub- 
 sequently defeasible, 99 ; comp., 
 207, 215. 
 distinction between voluntary as- 
 signment of expectancy and in- 
 terest, 92. 
 no trust unless intention to create 
 it, 100. 
 Equitable property, of, where settlor 
 declares himself trustee, trust 
 is perfectly created, 82. 
 where settlor appoints stranger 
 trustee, assignment to new trus- 
 tee sufficient, 89. 
 and good against assignor without 
 notice to former trustee, 91 ; 
 see 280, note {ij). 
 where new trustee created without 
 
 new trustee, 91. 
 assignmentto stranger for his own 
 benefit, 91. 
 Legal property where settlor declares 
 himself trustee, trust is perfectly 
 created, 82. 
 where settlor appoints stranger 
 trust transfer necessary, if pos- 
 sible, e. g. in land, chattels, or 
 stock, 84. 
 case of legal pi-operty incapable of 
 legal transfer, e. g., chose in 
 action, 85 ; and see 89. 
 VOLUNTARY SETTLEMENT, 
 Land or chatties real, of, defeasible by 
 subsequent sale by settlor, 92. 
 but not by settlor's heir or devisee, 
 
 93. 
 c. q.t. cannot prevent sale or obtain 
 
 redress, 93. 
 settlor cannot enforce contract for 
 sale against purchaser, but pur- 
 chaser may against settlor, 93. 
 power of settlor to defeat by sale, 
 
 not a disposing power under 1 
 & 2 Vict. 110, s. 11, 13 ; G(3G, 
 note (a), 
 real or personal estate, of, by one 
 indebted, defeasible by creditor, 
 93. 
 Trustees of, bound to preserve con- 
 tingent remainders, 405. 
 VOLUNTARY TRUST. See Debts, 
 
 Vohmtary Assurance. 
 VOLUNTEER, 
 
 Assign of trust estate presumed to 
 have notice, 19 ; and see 224, 228, 
 279, 406. 
 Trust estate followed in his hands, 
 
 724. 
 Time no bar in case of express trust, 
 745. 
 as to constructive trust, see 729, 
 733. 
 VOTES. See Member of Parliament, 
 Parisliioners. 
 purchase for purpose of giving, 137 ; 
 does not raise resulting trust, 203. 
 VOUCHERS, 
 
 c. q. t. may inspect, but must pay 
 
 for copies of, 428; and see 599. 
 Trustees may keep, 428. 
 
 need not be kept for ever, 741 ; 
 lost, 739. 
 
 WAIVER, 
 what is, 737. 
 
 what consideration sufficient for, 737. 
 WARD. See Guardian. 
 WASTE, 
 
 Equitable, 225. 
 
 Permissive, by equitable tenant for 
 life, 514 ; by legal tenant for life, 
 514, note («). 
 Tenant for life without impeachment 
 of, trustees should not purchase 
 wood estate in his favour, 421. 
 Trustees to preserve, their duty to 
 prevent, 408, 413. 
 WASTING PROPERTY, 
 
 as leaseholds, long annuities, where 
 to be converted, 808, et seq. See 
 Conversion. 
 WEST INDIES, 
 
 equities relating to estate in, en- 
 forced here, 47 ; and see Jfuri-s- 
 diction. 
 trustees for estates there, whether 
 entitled to commission, 546. 
 WESTMINSTER, 
 
 Stat, of, 647. 
 WIFE. See Feme Covert. 
 WILFUL DEFAULT, 
 
 account for, not given on further 
 directions, 765.
 
 812 
 
 LEWIN ON THE LAVv^ OF TRUSTS, ETC. 
 
 WILFUL DEFAULT, continued. 
 
 where directed, 752, see 766. 
 WILL. See Deed. Wills, Stat. of. 
 Ambulatory till testator's death, 66. 
 Consideration it implies, 58, 167. 
 Copyholds of, 45, see note {«), 60 ; 
 see note (1) ; of equitable estate 
 in, 45, 615, 616 : where no cus- 
 tom to devise legal estate, 45, 
 616. 
 under late Wills Act, 60, 617. 
 Customary freeholds, of, 617 ; equi- 
 table estate, in, 617. 
 Executory trusts, construction of in 
 wills, 153, et seq. ; see Executory 
 trusts. 
 Feme covert of, as to separate estate, 
 
 642. 
 Freeholds of, under Stat, of Frauds, 
 65; equitable estate, in, 615. 
 under late Wills Act, 617. 
 Infant of fourteen might formerly 
 make, of personal estate ; secus 
 now, 27. 
 Land of, to be converted into money, 
 
 807. 
 Money of, to be laid out in land, 796. 
 Power to appoint by, contemplates 
 those who answer description at 
 death of donee, 170, 704 ; and see 
 Assets. 
 Personal estate of, under Statute of 
 Frauds, 65 ; under late Wills Act 
 617. 
 Settlement, will distinguished from 
 as regards duties of trustees to 
 preserve, 410. 
 Sovereign of, 25. 
 Stock of, how formerly made, 32, 
 
 note (1). 
 U^se, devise of, 615. 
 devise to uses, construction as to, 
 258. 
 WILLING AND DESIRING, 
 
 may create a trust, 167. 
 WILLS, 
 
 Statutes of, c. v. s. 3, p. 65; 
 see Leg(d Estate, liesiduarij 
 
 (devise). 
 
 trusts cannot be created by devise 
 or bequest without formalities re 
 quired for wills, 66 ; see as to 
 personal estate, 68, and see 69, 
 note (rt). 
 
 except in case of charge of debts 
 and legacies on real estates before 
 1st Jan., 1838, 69 ; (and how far 
 exception extends), and in case 
 of fraud, 70. 
 
 devise to uses, 258. 
 WISHING AND REQUESTING. 
 WORDS. See Consent, Construction, 
 Executory Trusts, Grant, Invest- 
 ment, Technical Terms; " heirs,"' 
 141 ; " heir male," 154 ; " heirs 
 female," 149 ; " heirs of the body," 
 see this title ; " issue," 149, 156 ; 
 "it shall be lawful," see 386;" 
 " shall and may," in act of parlia- 
 ment, 301, note (c) ; "request," 
 " require," see these titles, " sub- 
 ject thereto," 191; "trustee," 
 " trustee of inheritance," 250. 
 
 implying restraint against anticipa- 
 tion, 123, 632, note {to) ; separate 
 use, 121, et seq. ; trust, 107 ; but 
 seel70, 171. 
 
 supplied in articles, 153. 
 WORSHIP OF GOD, 
 
 construction of trust for maintain- 
 ing, 497, et seq. 
 WRITS OF, 
 
 distringas, see Distringas, 860, et 
 seq. 
 
 execution at common law, 646. 
 WRITING, 
 
 Assignment of equitable interest by, 
 600. 
 
 Request for sale to be testified by, 
 419. 
 
 Trust, note in (not under seal) suffi- 
 cient to declare, 56. 
 but in case, of wills, see Qd, 68, 
 and 69, note (a). 
 
 Trustee may sue before having ac- 
 cepted the trust by, 243.
 
 
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