l;ll;;^' 'Mn uhhuiii i Ui 1. Uii'' liiiil! J I .^^ UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY ER% ^lOSANGE^^ ^OFlMiF(% 'j^ninvv ii"\- -^^ <:5 0FCA1IF0% — n in ^ ^ vny\K\ \ ^ C ^ la VlOSANG[L^~j; THE LAW TRUSTS AID TRUSTEES, AS ADMINISTERED IN ENGLAND AND AMERICA, EMBRACING THE COMMON LAW, TOGETHER WITH The Statute LaAvs of the several States of the Union, and the decisions of the Courts thereon. By JOEL TIFFANY and E. F. BULLARD, COUNSELLORS AT LAW. "Nullum iniquum injure praesumeiidum est." 'Legal precedents ought not despotically to govern, but discreetly to guide." ALBANY: W. C. LITTLE, LA^ BOOKSELLER, 1862. Entered according to Act of Congress, in the year Eighteen Hundred and Sixty-two, Bt weare c. little, In the Clerk's OflSce of the District Court of the United States for the Northern District of New York. '111 /^^ VAN BENTHDYSEJJ, PRINTER, ALBANY. THE AMERICAN BAR. FOR TOD, GENTLEMEN, THIS WORK HAS BEEN PREPARED, BY YOU IT 13 TO BE TRIED AND JUDGED, AND BY YOUR JUDGMENT IT MUST ABIDE) THERE- FORE TO YOU IT IS RESPECTFULLY DEDICATED THE AUTHORS. PREFACE A work on the Law of Trusts, suited to the American Bar, must necessarily be one of great labor. It ought to embrace the law on that subject as. established in Thirty- four sovereign States, each State having so altered and modified the common law doctrine as seemed best adapt- ed to their circumstances. These statutory changes in the several States have made necessary corresponding changes or modifications of the common law doctrine of trusts, which appear in the decisions of their courts. These decisions, becoming precedents, tend to mislead the American student, and will do so, unless he becomes acquainted with the statutory provisions upon which they are based. It therefore became necessary to pre- sent the common law doctrine of trusts, the modification of the same by the statutes of the several States, and the decisions of the courts of these States on questions arising out of these modifications. This has been done as extensively as the limits of this work would permit. It is hoped that it may prove acceptable to the profes- sion, and be an aid to them in their study of the Law of Trusts, as administered in England and America. Albany, June, 1862. TABLE OF CONTEITS. INTRODUCTORY. Of the nature of trusts and the general principles applicable thereto, DIVISION I. OF THE SEVERAL KINDS OF TRUSTS. CHAPTER I. Of Express Trusts. Section 1. Express trusts in writing, " 2. Express trusts by parol, 11 13 CHAPTER II. Implied Trusts. Section 1. Resulting or presumptive trusts, ----- 20 1. Unexhausted residuum, ------- 24 2. Estate purchased by one and consideration paid by another, - 28 3. Estates purchased by funds, &c., held in a fiduciary capacity, 32 4. Voluntary conveyance without a declaration of trust, - 36 5. Voluntary disposition, &c., to a trustee and no trust declared, 42 6. Property conveyed in trust but the trust insufficiently declared, 44 7. An estate convoyed on particular trusts which fail of taking effect, 57 1. Because trust is void ab initio, ----- 58 2. When trusts fail from the happening or non-happening of subsequent events, ------- 63^ Vlll TABLE OF CONTENTS. PAGE. Section 1. — Continued. 8. Arising from the equitable conversion of property, - - 75 9. Arising as liens, -------- 84 10. Arising from the right to an equitable contribution, - - 91 11. Where property is bequeathed. &.C., subject to a charge for payment of debts, &c,, ------ 94 12. In cases of joint purchases, &c., and purchases with part- nership property, ---.---97 13. Arising in cases of those standing in a fiduciary character, 99 14. Arising by way of substitution, ----- 105 15. Arising in cases of the right of priority of payment, - - 110 Section 2. Constructive trusts, ------ 112 1. In cases of constructive fraud, ------ 112 1. Cases which are discountenanced because they are con- trary to some general public policy, or some fixed arti- ficial policy of the law, ------ 12O 1. Agreements respecting marriage, known as marriage brokage contracts, ------- 12O 2. Conveyance, &c., to trustees, upon a secret under- standing, to be applied to an illegal purpose, - - 124 3. So a bond or other premium for procuring a public office for another, ---.-.. i25 4. Contracts in restraint of trade, - . - - 126 5. Contracts to prevent competition at public sales, - 126 6. Agreements which lead to a violation of trusts reposed in public officers, ------- 127 7. Agreements founded on corrupt considerations, or moral turpitude, ------. 128 2. Arising out of the peculiar and confidential relation of the parties, -------- 131 1. Parent and child, - - - - - - -132 2. Guardian and ward, ------ 134 3. Attorney and client, ------- igg 4. Principal and steward, ------ 140 6. Principal and agent, ------- 142 6. Trustees and cestuis que trust, - - - - 145 7. Executors and administrators, ----- 149 8. General cases, ------- 150 8, Frauds deriving their character mainly from unconscien- tiously compromitting or injuriously affecting either the private rights, interests or duties of the parties themselves, or operate as frauds upon the private rights, &c,, of third persons, ---_._ 154 1. Mental weakness, ------ I54 2. Drunkenness, -.-._--. 159 TABLE OF CONTENTS. ^^ PAGE. Section 2.— Continued. 3. Persons under duress, 4. Common sailors, ---*""" 5. Young heirs, reversioners and remaindermen, - 1C5 2. Where the requisition of the property is tainted with actual fraud, --■""""" 1 When the transaction is in fraud of the rights of the 169 parties thereto, 1. By suggestio falsi, ^'f 2. By suppressio veri, ------ 1' As, 1. By false statements of material facts, by which the contracting party is misled, 1'^ 2. Fraud perpetrated by the suppression of the truth, by which a party is misled and injured in his rights and - - 175 interests, .------" 3. Contracts with idiots and insane, - - - - 181 4. With infants or persons of non-age. - - - 182 ^ -TT 1 •„ ----- 185 5. Under surprise, - - - 2. Where the act is in fraud of the rights of third parties, 187 1. Fraud in the procurement or suppression of wills, deeds, &c., 2. Fraud in the exercise of powers of appointment, - lyo 8. Conveyances to defeat creditors, - - - - 19'^ 4. Devises, &e., to trustees for illegal purposes, - - 196 5. Purchases from trustees, &c., with notice of the trust, 197 CHAPTER III. Trusts under a power, - - - - 187 209 CHAPTER IV. Trusts raised by precatory words, words of recommendation, &c., - 223 Trusts for charitable purposes, Trusts for the benefit of creditors, Trusts for the payment of legacies, Trusts for raising portions, ------- 278 308 317 TABLE OF CONTENTS. DIVISION IL OF TRUSTEES JND THEIR INCIDENTAL RIGHTS, POWERS, ETC., AND LIABILITIES. CHAPTER I. "Who may be a Trustee. PAGE. Section 1. The legal requisites of a trustee, - - - - 32-5 " 2. The king as trustee, --.-.._ 326 The State as trustee, 328 " 3. Corporations as trustees, ---... 331 " 4. Voluntary associations or unincorporated companies, 337 " 5. Aliens as trustees, ---.... 340 " 6. Bankrupts and insolvents, 346 " 7. Idiots and lunatics, -.-.._. 34(5 '* 8. Feme covert as trustee, ------ 347 " 9. Infants as trustees, ---__.. 343 CHAPTER II. How Trustees may be Constituted. Section 1. By an express appointment of the party creating the trust, - . _ 35Q 2. By an appointment under a power contained in the instrument creating the trust, - - - . 355 '• 8. By appointment by a Court of Chancery, - - 376 " 4. By an act of the Legislature, 473 5. By implication and construction of law, - - - 474 CHAPTER III. Of acceptance and disclaimer, ------. 510 CHAPTER ly. Of the office of trustee, and the general properties thereof, - - ' 53G TABLE OF CONTENTS. XI CHAPTER V. Of the Duties and Liabilities of Trustees- PASE. Section 1. General duties and liabilities, ----- 559 " 2. Investments by trustees, ----- 587 " 3. Liabilities in respect to remaindermen, - - - 616 " 4- In respect to infants, ------ 641 " 5. In respect to married women, ----- 649 " 6. For costs, 697 '' 7. Limitation of actions, &c. Statutes of limitation, - 715 CHAPTER VI. Of the Powers of Trustees. Section 1. Of discretionary powers, 721 " 2. Of powers of sale, 750 CHAPTER VII. Of the Estate of Trustees. Section 1. When any legal estate in the subject of the trust passes, 772 " 2. The nature and quantity of the estate vested in trustee, 788 " 3. Incidents to the estate of a trustee, - - - 806 CHAPTER VIII. Compensation of trustees, -------- 835 CHAPTER IX. Ofthe termination of the office of trustee, 861 TABLE OE CASES. A. PAGE. Abbott V. Am. Hard Rubber Co.. . 484 540, 5h7 V. Abbot 505 Abeel v. RadcUff • 355 Acherly v. Wheeler Oj^' Acker v. Phcenix •'" '^ Ackermanv.Emmott... 480,558, 585 Acton V. Woodgate • • • • • • • • 279 Adair v. Shaw 150,187, 480 Adams v. Barrett • • • • ^J^ V. Blodgett 293, 304 V. Taunton. 515, 532, 567, 394 V. Clifton 537 V. Buckland 443, 542 V. Caxton 582, 599, 600 T. Paynter 1^50, 358 V. Cole 677 V. Brasket 305, 307 Adamson v. Armitage 667, 668 Addington v. Conn 1 ^. ^o^ Addis .V. Campbell 168, 169 Addison v. Danson ^»^ V. Bowie I^^f Aislabie v. Rice ^47 PAGE. Amand v. Bradburn • • • 713 Ambrose v. Ambrose -It), ^»^ Amer. Bible Soc. v. Wetmore.240, 259 Ames V. Downing 144,149', 555 V.Ashley • • • • ^56 V. Blunt 290, ^yb V. Parkinson »»^ Amesburyv. Brown ^rX, Amoryv. Lord *^^ Amphlett V. Park ^^ Anderson V. Neff 8*2 V.Anderson °^*- v. Lemon 98, 490 Anderton v. Partington 645 Andrew v. Clark, • • • • • ■ • • • • • \}"- Andrewsv. Hobson..l46, 148, 554, 555 V. Tenter. 437 N.Y. Bib. Soc. ..333, 339 637, 560, 565 T. Administrators, &c 584 Andrew v. Andrew 621 Andrews v.N.Y.B..^P.B. Soc. ^^^ V.Jones 675 Anderton v. Yates • • • • 04& Anger V. Stannard 711, »w Aikin V.Smith.. ••• °°^ Antle v* Mendlycott "2 Bay'. V.7. 6o0; 651 I Antrobus v. Smith 501 Aikin v. Smith '. Smil . Slop( [ns. Cc .,a.d..';.';4S;o;u-:::::::... ,n j Ai.i,»v s« ^SX^.l-ifS;;::.!.;;?;-, a -. ... E.c.„e.. Alcock V. Sloper Albany Ins Co. v. Bay oo. °-J -;p;;:Yuthe"ran7&c Aldrich v. Grimes ^»-^ 1 ^i'V- 250 575 133 474 760 700, 723 Armstrong v. Park '^ ' ' ,^« ,r Millpr 587 V. Farr V. Pendleton Alger V. Thatcher Allen V. McPherson V. Papworth V. Thorp V. Dewitt V. Mandaville ;^"» Allumv. Fryer 755 Alsager v. Rowley i»° Alynv. Belcher '^^ 499 199 126 187 649 712 760 200 288 497 Miller V. Campbell. V. Byrne. . . • V. Moran ... V. Stoval 662 Arnardv. Tarbe 472 Arnold V. Gilbert ^rfi V. Patrick ^^^ V. Garner 557 Arnot V. Bisco • • • • |L|,^ Arnoux V. Steinbrenner 700, 7U3 XIV TABLE OF CASES. PAGE. Artcher v. McDuffie 476 Ashbarnham, Thompson.. 686, 593, 704 Ashcroft V. Little 667, 669 Ashley v. Ashley 682 V. Bailey 200, 201 V. Willis 200 Ashton V. Ashton 499, 689 Ashurst V. Given 3, 774 Aspinwal v. Jones 442 Astrum v. Flanegan 477 Atcherly v. Vernan 669 Atcheson v. Ateheson 674 V. Robertson 701 Atkins V. Jordan 290 AtluT. Hook 635 Att'y-Gen. v. Lord Dudley 118 V. Southern 162 V. Bishop of Litchfield. 543 T.Flint 666, 715 V. Randall 572, 573 v. Dixon 681 V. Bowyer 252, 603 T. Scott, 539, 540, 641, 667 783 V. Sherman 640, 567 T. Gumming, 540, 565, 667 712 V. Sturge 273 V. Lepine 273 V. May 274 V. Wallace 274, 275 V. Chrisfs Church 274 V. Earl of Lonsdale. .. 274 V. Norwich 274 V. Nethercoate 276 V. Owen 276 V. Kerr 275 V. Britingham 275 V. Brooke 276 V. Pargeter 276 V. Stamford 276 V. Dixie 276, 278 V. Clarendon 276 V. Griffith 276 V.Rochester 276 V. Clark 276 V. Wilkinson 276 V. Hartley 276 V. Jackson 276 V. Shore, 251, 276, 277, 384 V.Janes 277 V. Hewer 277 V. Smart 277 V. Whitley 277 V. Parker 277 V. Ruper 235 V. Newcomb '235 V. Fowler 235 V. Stepney 236 V. Clapham 236 V. Heclis 236, 237 V. Wallace 238 V. M. E. Church, 240, 247 268 PAGE. Att'y-Gen. v. Jackson 241 V. Berryman 242 V. Coopers' Co 242 V. Drapers' Co 242 V. Syderfin 242 V. Earl of Winchelsea, 243 V. Oglander 243, 252 V. Piatt 243 V. Rye 244 V. Burdett 244 V. Hurst 244, 276 T. Green 247 V. Baxter 247 V. Guise 247 V. Bishop of Oxford ., 247 V. Goulding 247 V. Whitechurch ..247, 252 V. Davies 247 V. Grocers' Co 247 V. Hinxman 247 V. Rice 278 V. Gov. H. School.... 278 V. Lock 278 V. Middleton 278 V. Catharine Hall 278 V. Archbishop 278 T. Alagdalene 278 V. Deane 278 V. Earl of Clarendon.. 278 V. Smythes 278 V. Bro. Hospital 278 V. Hall 62, 269 V. Milner 59, 65 V. Piulden 310 v. Landersfield 326 V. Ironmongers, 242, 243 252, 256, 333 V. Drapers' Co 702 V. East Retford 708 V. Clock 708 V. Brewers 719 V. Hickman 242, 732 V. Stephens 384 v. City of London.. 243, 701 V. Cain College 702 V. Chrisfs Hospital .. 702 V. Coll. Wm. & Mary, 234 V. Rearson 235 V. Bishop of Chester.. 235 V. Glegg 250 V. Pearson... 251, 276, 277 V. Boultbee 262, 257 V. Wansey 252 V. Bishop of Landaff . . 253 V. Wilson 276, 288 V. Hicks 258 V. E. of Manfield, 258, 274 V. Tyndall 269 V.Hutchinson 269 V. Nash 269 V. Sands 807 V. Morgan 823 V. Butler 826, 827 V. Vigor 826 TABLE OF CASES. XV PAGE. .. 272 .. 93 585 543 Atwood V. Small V, Vincent __. •••• Auburn V. Kellogg, ^^^' Aubuchonv. Lory •••• Aubery v. Middleton 306, 315 Avery v. Osborn • • • • • • • • • • • • '' Aylitf V. Murray . ..144, 484, 702, 83b Aylward v. Kearney 134 Ayre v. Ayre PAGE. Barheydt v. Barheydt 8^4 Barker V. Greenwood '°* V. Martin ..166, ..137, 841 554 809 38 169 482 69S 621 435 B. Bacon v. 180 537 498 498 Bronson Bacon . Bagwell V. Dry . Bagottv. Bagott .....•••• ' Bagshawv. Spencer, 774, 783, <84, 790 Bainv. Lescher |^^ Baily v. Robinson :J^^ Baines v. McGee • • • • ^Y Bainbridgev. Blair 838, 841 Baker v. White . . . V. Sutton. .. V. Bradley.. V. Deveraux T. Hall. V. Martin • • • • Balchen v. Scott 528, 629, Baldwin v. Biilingsley V. Canfield V. Johnson Ballard v. Ballard V.Carter •;•• „,„ Ball V.Harris 301,754, 762 V. Vardey ^ v.Caren 1^^ V. Smith V. Montgomery V. Brown Balgrovo v. Balgrove ' ^^ Bampton V. Birchal ^-' Band v. Fordell Bandbow v. Townsend Bank of U. S. v. Carrington 121 236 ! 133 271 75 841 538 817 479 83 497 826 104 124 857 790 Barksdale v. Finney Barland v. Dean Barlow v. Hensey •' Barmerdiston v. Longwood Barnard v. Hunter V. Headon Barner V. Falkiier Barnes V. Edwards V. McClinton 303, H^l V. Patch ••• 231 Barnettv. Dougherty. ...... ••47, 4;d Barney V. Griffin 284,286, 290 V. Saunders, 385, 587, 592, 593 594, 598, 699 Ba.rnwen v. Lord Cawdor 3^1 Barr v. Barton Barren v. Day Barrings v. "Willing... Barron v. Barron Barrows v. Lock Bartlett V. King V. Pick^rsgiile 14,24,29 V. Southerland '^^ Barton's estate • • • • • • • • • • ■ °^° Bass V.Scott 778,779,785, <86 Bassett v. Noseworthy • • • • «i^ Bate V. Scales 592, 600 v.Hooper ^'^ Bates V. chister :::*;Vq' iil Baxter V. Costin 147,149,^554 Bayley v. Greenleaf. 164 848 538 696 172 332 259 101 617 502 150 700 691 616 15 475 Biddle 718 Bank v. Campbell Bank of Va. v. Craig Bank v. Nahant V. Phalen V. Foster V. Edwards. ..• Bap. Ch. V. Pres. Ch. Barbee v. Carey .• Barblet V. Wyraan .. Barbons v. Whitlock. Bard v. Foot Bardie v. Watkins .. 93 519 131 262 139 813 435 736 164 718 271 70 Powell Baylis v. Baylis. V.Newton.-- Beach V. Beach SH' °»^ Beaubien v. Ponpard Beauchamp v. Davis Beaufort v. Collins . Beaumont V. Boultbee ' » Beaver v.Filson •••• f^ Beckford V. Wade 715, 717 Becklev V. Dorrington }^° BeekmLv.Bouso"r,537,759,732 733 V. the People, etc., 252, 267 474 Beck's Executors v. GraybiU. • • • • 485 Beeson V. Beeson o55, 148, 149 I Belden v. Knowlton '»^ BeUbur V. Welland •••• '^f j Bellv. Phyn 72t,, 7^.5 Bellv.Quinn ^f Bell V. Twilight •••• 20^ i Bellamy V. Bellamy ^55, 613 Bellas v.McCarty ••yl??'??? i Bellows V. Russell 131, 138, 1.59 I Bellows V. Partridge ^»o ; Belmont v. O'Brien ^^-^ I Bendell v. Bendell »»» I Benfield v. Solomons ' Benick v. Bowman . 198 701 XVI TABLE OF CASES. PAGE. Benn V. Dixon: 621 Bennett v. Davis 825 V. Biddies 701 T. Akins 713 V. Batchellor 100, 101 V. Going 713 V. Hayter 252 T. Vade 115 Benning v. Benning 506 Benson V. Bruee 857 V.Davis 71t V. Whitman 46 Bentham V. Wiltshire 755 Bentley Executors v. Dillard 437 Bentley v. Shreves 592 Bergen v. Bennett 658 Berger t. Duff 760 Berkley v. Brescton 739 V. Ryder 742, 748 Bernard v. Bougard 30 Berrien v. McLean 684 Berry v. Riley 283 Bethune v. Kennedy 626, 631 Bettle V. Wilson 692 Betzer v. Hahn ■ . . . 635 Beverly v. Peter 76, 491, 492 Bigbee v. Cook 532 Bill V. Kynaston 620 Bingham v. Clanmorris 527 Birch V. Belgrave 602 V. Wade 224, 231 Birdsal v. Hewlett 497 Bird's estate 847 Bird V. Graham 718 Bisco V. Roylston.. ..= 299 Bishop of Cloyne v. Young 100 Bishop of Hereford v. Adams .... 252 Bishop V. Curtis 1 808 V. Bishop 497 V. Hart 296 Blackford v. Christian ] 56, 158 Blackburne v. Gregson 88 V. Stables 17 Blackwood v. Burrows 562, 582 Blair v. Bass 447 V. Owles 199, 200, 819 V. Herford 677 Blaisdell v. Stearnes 203 Blake v. Blake 354 T. Banbury 617, 810 Blake r. Erwin 760 Blanchard v. Blood 670 V. Nestle 155 Bland v. Bland 68, 227 Blanchett v. Foster 124 Blennerhassctt v. Day 717 Blight's Expc'ors v. Erwing 753 Blight V. Wright 753 Blinkhorn v. Feast 348, 604, 506 Bliss V. Bradford 350 Blocklow v. Laws 766 Bloomer v. Waldron 762 Bloodgood V. Moshcr 766 Blount V. Bestland 673, 674 PAGE. Blowers v. Merritt 312 Bleu V. Patterson 718 T. Peneston 501 Blyhelder v. Gibson 352 Boddam v. Riley 599 Bodine v. Edwards 479 Bodweler v. Smith 301 Boggs V. Verner....ll9, 201, 480, 820 V. Miller 818 Bogot V. Bogot 388 Bohannon's heirs v. Sthreshley's Am'r.... 715 Bonifant r. Greenfield, 394, 518, 625 535 Bolsford v. Burr 477 Bolton v. Gardner 147, 158 Bone v. Cook 571 Boney v. Hollingsworth 133 Bonta V. Wilhite 259 Bool V. Mix 184 Boone v. Charles 199, 480, 819 Booth V. Booth, 611, 628, 552, 571 692, 616, 798 V. Ammerman. . .621, 636, 637 V. Field 792 Bootle V. Blundell 301, 762 Borden v. Summers 290 Bordman v. Holliday 286 Borroughs v. Richman 160 Borough of Hertf 'd v. Poor,etc.,702, 708 Bosanquet v. Dashwood 163 Bostwick r. Atkins, 136, 148, 555, 658 Boteler v. Allington 816 Botsford v. Bean 24, 30, 31 Boucer v. Clark 690 Bouch V. Price 166 Boughton V. Boughton, 37, 304, 313 357 V. Phillips 700 Boulton v. Beard 712 Bovey v. Smith 200, 480 Bowden v. BowJen 626 Bowendly v. Idley 187 Bowers v. Smith 496 V. Leeger 540, 667 Bowes V. Heaps 166, 169 Bowker V. Hunter 103 Bowman v. Long 319 V. Rainetaux...640, 552, 573 574, 579 Boyce v. Grundy 170 Boyd V. Hawkins 837 V. McLean 24, 476 Boyert v. Hertell 764 Boyett v. Hurst 135 Boykin and wife v. Ciples and wife, 670 Boynton v. Dyer 596 V. Hubbard 121, 125 V. Reese 813 Boze V. Davis 501 Brace v. Reed 445 Bracken V. Miller 480,200, 818 Brackenbury r. Brackenbury 601 Brackenridge v. Holland 149 TABLE OF CASES. XVll PAGE. Bradden v. Cannon 321 Bradford v. Belficld, 363, 364, 365, 527 537, 736 V. Bradford 543 V. Haynes 500 V. Marvin 87 V. Rushton 739 Bradley v. Emerson ^86 Bradling v. Ord 200 Bradstreet v. Clark 197 V. Sup'visors of Oneida, 344 Bradshaw v. Fane .• • • 764 V, AVest 293, 2B0 Bradwell v. Weeks 345 Brady V. McCosker 188 Bracken V. Bentlcy 626 Braker v. Devereaux 399 Bramhall v. Ferris, 303, 490, 492, 495 Brandun v. Brandon 727 Branard v . Neely 297, 298, 299 Brasbridgc v. Woodruffe 103 Brassey v. Chalmer 764 Braswell V. Morehead 620 Brashear v. West 294 Bray v. West '1* Braybrook v. Inskip, 826, 828, 830 Breedon v. Breodon 765 Brest V. Offley 18, 210, 211, 224 Brett V. Force 677 Brewster v. Striker, 299, 774, 783, 784 Brice v. Brice 152, 180 V. Stokes, 544, 546, 550, 552, 569 571, 572, 574, 579, 580 Bridges v. Wood 668 Brido-man v. Green 156, 15( Brifffs V. Earl of Oxford 619 V. Hosford 500, 501 V.Perry 12, 21* Brigham v. Tillinghast 285, 286 Bright V. Rowe 319 B BrinUerhoff V. Wample 812 Brinton's Estate 847 Brisbane v. Adams 1 27 Bristow V. Ward 763 Britton v. Lewis 543 Broadhurst v. Broadhurst 300 V. Balgney...546, 550, 572 Broadman v. Mason •^- • 552 Brocksopp V. Barnes 836, 842 Broderick V. Broderick ..170, 172, 174 Brogden v. Walker 156 Bromley v. Smith 130 Brooksv. Ellis 477 V. Fowle 29 V. Marbury, 279, 292, 298, 299 V. Wimmer 285 Broom v. Carey 619 Bron V. Chiles 558 Brothers V. Cartwright 495 Brotherton v. Hall 200 Broughton v. Broughton 838 B PAGE. Broughton v. Langley 787 Browers v. Smith 59 Brown v. Allen 683 V. Aimested 760 V. Armstrong 733 V. Brown 688 V. Campbell 571 V. lliggs... 18, 60, 68, 210, 224 231, 721, 729 V. Hobson 750 V. Holcomb 294 v. Lee 295 V. Liint 14, 192 V. Lockhart 701 V. Lutheran Church. . .251, 275 V. Lynch 194, 197 V. Minturn 294, 297 V. Pocock 213, 216, 684 V. Southouse 535 V. Selwine l^S V. Strong 112 V. Summers 277 V. Williams 320 Bruce v. Pemberton 399 Bnieh v. Lantz 1^5 Brudenell v. Houghton 305, 315 Brumer v^ Storm 512 Brummell v. Brothero 304 Brunner v. Storm 299 Brunsden v. Woolridge 727 Brunson v. Hunter's Admr 225 Brunswick v. Dunning. 331 Bryan v. Bradley 781 V.Knickerbocker 402 V. Reynolds 131 Bryant v. Craige 596 Brydges V. Landcn 96 Buehan v. Summers 98, 1( Buchannan V. Hamilton 377, 383 Buck V. Swassey 1'I9 Buckles V. Carter ■ 609 rStn^;; v:K;ighU;y 585 Buckley v. Buckley •• 98, 305, 31 5 Hnk.y.LordRokeby .o ] ,„^,„ v^^;;^, ^ l^-^-;; i;;; f,l Bueknal v. Roiston Buckridge v. Glasse 377 Buel V. llciler 389 Buffalo V. Buffalo 140, 147 Buffer V. Bradford 102, 498 Buffum v. Green 294 Bulklcy V. De Peyster 510 Buelv. Buel 209, 215 V.Kingston 227 V. Vardy 213, 216, 225 Bunn V. Winihrop 500, 501 Burbank v. Beach 393 V. Whitney 732 Burch V. Brcckenridge 657, 678 Burdick v. Post 286 Burdon v. Burdon 838 V. Dean 678, 679 Buren v. Olmstead 192 Burford's heirs v. McKee 501 Burger v. Rice 1 31 Burgin v. Burgln 299 XVlll TABLE OF CASES. PAGE. Burges v. Wheate 331 Burgoyne v. Fox 321 Bulk V. Allen 155 Burletan V. Humphrey 748 Burnett V. Silliman 402, 510, 527 Burr V . Sims 496 V. Smith 238 Burridge V. Bradley 312 Burrill v. Shirt ' 539, 541 Burt V. Cassity 205 Burtisv. Dodge 840 Bush V. Allen 671 V. Bush 819 V. Golden 205, 206 Butcher V. Butcher 135 V. Stanley 201 V. Stoddard ■. 285 Butler V. Bray ■ 542 V. Dunscomb 321 V. Haskall 718 V. Stevens 206 Butts V. Gunning 112 Byam v. Byam 736 Byrne v. Stewart 492 V. Worcot 708 c. Cadagan v. Kennett 118 Cadman V. Homer 175 Cafe V. Bent 364,372, 708 Caffry v. Darby, 581, 615, &55, 702 704 Cain V. Conklin 159 Cairns v. Chaubert, 621, 627, 640, 840 Caldecott v. Brown 639 Caldwell v. Carrington» 480 V. Williams 501 Calwelder v. Cahvelder 584 Calmore v. McMichal 811 Calloway v. Witherspoon 159 Cambridge v. Rouse 60, 68 Cammeyer V. U. Lutheran Church, 345 Campbell v. Drake 34, 481 V. Johnson 144 V. Mullett Ill V. Netherville 746 V. Penn 148 V. Rawdon 805 V. Walker, 146, 148, 149, 555 677, 769 Canal Bank v. Cox 289 Cane v. Lord Allen 137, 139 Canoy V. Troutman 811 Canton v. Ridout 690 Capehart v. Iluey 700 Capling V. Stokes 134 Capperton v. Coliison 699 Carey v. Abbot 240 V. Gooding 103 V. Mansfield 134 Carlton v. Banks 6G5, 666, 673 PAGE. Carmichal v. Trustees, etc 336 Carenter v . Cameron 753 Carson v. Murry 696 Carr v. Holliday 182 V. Robb 718 V. Taylor 677, 678 Cartv. Rees 682 Carter v. Anderson 680 V.Balfour ...305, 316 V. Carter, 529, 665, 673, 675 692, 696, 799 V. Cutting 587 V. Estes 702 V. Rolland 643 Carrick v. Errington 58 Carteret v. Carteret 816 Cartright v. Cartright 581 Case V. Abel 144 Casbord v. Ward 327 Casborne v. Scarfe 827 Cassaraajor v. Strode 319 Cassel V. Spayd 842 V.Vernon 585 Cawdor v. Lewis 92 Central Ins. Co. v. National Prot. Ins. Co 143, 483 Centre v. P. M. Bank 205, 208 Cecil V. Butcher 38, 39, 501 Chadwick v. Heatly 864 Challen v. Shippen, 553, 574, 597, 600 704 Chalmers v. Brailsford 503 V. Bradley, 356, 358, 527 556, 557, 719, 828 Chamberlain v. Chamberlain, 189, 193 766 V. Agar 125 V. Crane 781 T. Dearborn 783 T. Thompson, 774, 783 792, 801 Chambers v. Bapt. Ed. So 436 V. Godwin 637, 839 v. Minchen, 310, 544, 649 557, 658, 560, 565, 574 677, 672 v. Mauldin 378 v. Perrey 769 Chnmplin v. Butler 192 V. Champlin...209, 692, 728 T. People 163, 164 Chanet V. Villeponteaux 759 Chapin v. School Dist., etc., 236, 240 241, 242, 3.36 V. Weed 480, 557 Chaplin v. Givens.. .512, 524, 527, 550 V. Moore 647 Chapman v. Brown 269 V. Tanner 85, 88 Charter v. Trevelayn 864 Chase v. Lockerman 587, 877 V. Peck 490 Chedworth V. Edwards 582 Cheltenham v. Lord Audley .. .... 829 TABLE OF CASES. XIX „ ,, S59 ! CoE«well v. Cogswell, 598, 638, 64U, 500 620 , . Payne 124 ChesterQeld v. Jansen, 113, 125, 165 167, 173, 1% Chesterman V. Gardner 103, 822 Chevcr V. Clark •foJ Child V. Abingdon ^^^ V. Elsworthy • Chisholm v. Padsden Chitty V. Williams . Christie v. Bishop . . V. Phyfe. . • Christian V. Yuuncey 299, 457, 511 Christopher v. White 8^» Chronister v. Bashey • • • • l^b Church V. Church 200, 480 Churchill V. Pibbin • • • ■ ^h8 V. Hudson 538, 576, 5(8 Bishop 15-'^' 1^,1 Burkley ••• Clark 579, Depeau Fuller Henry , Jaques , Jenkins 546, 57d ■ Lock 501 . Masuire o*'' .662, 670 .645, 345 Colby Cole 437 110 118 Clark 635 173 1 96 820 497 747 621 196 286 192 684 Lawson V. Cole V. Davies V. Gibbons 1*'6, 169 V. Gibson Y\ v.O'Niel 24 V. llobins ••• ''/.^ V. Trecothick, 145, 148, 166, 5o3 556 V.Turner 305, 315 V. Wade, 364, 727, 735, 736, 739 Coleman v. Coleman V. Seymour V. Tyndall V. WoUey-s Ex Colesworth v. Brang\yine Collins V. Car"y V. Carlisle, 209, 215, 217, 223 728 V. Champ's heirs 491, 492 v.Hoxic 700, 840 500 722 783 657 102 838 Makenna. V. Morey V. Randolph . ■ Collingswood v. Pace . CoUis V. Blackburn . V. Collis Collomb V. Caldwell . CoUyer v. Ashburner V. Burnet . . • Dudley . •• 668 341 647 588 288 635 273 704 198 '7367 739; 748, 749, 750 | Coltingham v. Fletcher 197 ■r:j,i,p ' 753 Colvin V. Currier • oUD ^'t1\l 619 Commonwealth v. Martin 495 Sawyer ■.'/.■...■.; 188 1 Compton y. Barner ^Vard 182 ! Conckling y. Carson ciarks^rB^it;;::SJ; Si: S\t::s:^^p-^^^'-^^^-^- ,, ^''^''"";. Hanwa'y 157, 558 ^ ton.- Atwater ........... .... 2g v! Parker," "528," 541, 733, 734 j Colt y. Stores ..^ roK -710 'yAS. liQ. 750 Coltinsrham y. 1" I 851 290 481 mway Clapp's Assignees y. Shirk . 296 Conklin v. Edgerton _ V. >Vashington University, 7b.-5 Clayering....47, 500, 501 | Conleyy. Parsons 769 „ , " 759 C.mnah y. Sedgwick ^Y^ulllfiZ:" ".'.'.'..'. 562 i Connelly v. Connelly Conway v. Green rinnfip's Widow y. Claquc"s Adm., 473 tlaque s >^'"^7 ^-^^^^ ,- ,,,,q^ g^ j Conley v. Parsons Claverini? y. Cleghorn y. Love Cleland v. Cleland • • • • «78 Clemmens v. Cadwell •■>»^ . Ilallett 13^5 586 646 692 332 Taber 284,287,290, 301 443 564 417 543 321 121 746 85S 717 302 V. Weller V. Winter •■ Greenlee v. McDowell ^''» Greenlaw v. King l_^J' Greenleaf V. Queen ''^ Greenwell v. Greenwell . .... • • . • ^b Greening V. Fox ...592,593, 80 J Greenwood v. Wakeford » '" Gregg V. Currier • • • • »*'^ Gregory v. Gregory - oa, 010 Gregnon's Lessees v. Astor . . Grey y. Kentish ••• V. Lynch 604,613, 657 V. Colgin 771 Gridley v. Andrews • • • '^>^ Grierson v. Kirsop * V 'IqiV fifi8 Griffith v. Griffith 202,480, 668 V. Roggers I"'' v. Spratley GrifBn v. Bonham V. Deublew V. (ilraham Grigley V. Cox Grinnel v. Schmidt Grinstead v. Fonte Grinwood v. Wakeford Griswold v. Chandler o»' V. Smith 206 V.Miller 161 Groffv. Catleman ••• 1J« Grover v. Grover oqV 'oq^' 901 V. Wakeman 284, 285, 294 642 682 506 162 857 156 238 687 393 543 590 670 127 273 183 820 119 172 v. Ray .... Grove y. Stackpole Guest V. Farley • . • GuUedge v. Barry. Gun V. Carlisle 208 440 266 417 y. Irwin v. Jones v. Robinson v. Potter y. Young V. Wilson's Heirs Hallett V. Collins Halsev v. Reed V.Whitney.. 279, 280, 231, 289 292, 293 Hamden v. Rice. • • • • 236 Hameslsy v. Smith 684, 690 Hamilton v. Bishop 607, y. Hamilton . . . v. Houghton y. Lomax V. Royse 201, y. Russel Hammet V. Emmerson Hammerly v. Lambert 112 Hammitt v. McDougall 6S6 Kerkland ...528, 640, 550 672, 574, 615 , Monott 313 Allen 601, 602 , Snoodgrass 5S7 Jacks 699 Kealing 666, 676 Harbison y. Lemon 160 Harcom v. Hudnall 492, 495 Harden v. Parsons 544, 546 Hardes v. Hardes 476 Harding v. Evans 582 ° V.Glynn... 18,211, 224 231 v. Hanby 156 Hardin v. Bond 355 Hard wick v. Vernon 703 Hardy v. Summers 822 Hare v. Van Deuzen 492 Hareland v. Bloom 666 V. Myers 675 v. Trigg 218, 224 Hargraves V. Rothwell 201 Hargreaves v. Rothwell 202 liarkins v. Coates 669 Hanbury v. Hancock v. Hancom v. Handley v. Hanson v. XXVI TABLE OF CASES. PAGE. Harley r. Platte 671, 797 Harlan v. Brown 767 Harmony v. Bingham 164 Harper v. Phelps . . .214, 215, 218, 225 730 V. Straws 277, 385 Harrington v. Bigelow 1 29 V. Price 809 V. Brown 145, 653 Harris v. Arnold 206 V. Clark 796 y. Fly 305, 315 V. Harris 660, 658 V. Howell 189 V. Mott 683 V. Pryner 640 T. Rucker 298 V. Tremenhen 139, 144 Harrison v. Brolasky 684 V. Foster 627, 628 V. Fourth 200, 808 V. Graham 528, 538, 873 V. Harrison 223, 224 T. Haskins 313 V. McMennomy 15 y. Mock 687 v. Tyson 171, 177 V. Warner 699 Harrod v. Fountleroy 718 Harrop v. Heanard 682 Harry v. Gloves 619 Hart V. Bulkley 285 V. Crane 288 y. White 215 Hartley v. llurle 307, 311 V. Cunningham 126 Harton v. Harton 785 Hartwell v. Hartwell 125 Harvard College v. Armory. . .416, 613 Harvey v. Ash ton 748 V. Montague 208 V. Olmsted ..> 804 Harwood v. Oglander 719 y. Wood 227 Haskins v. Miller 682 Haskill V. House 751 Hassenclever v. Tucker 304, 335 Hassol V. Hassol 305, 315 Hastings v. Baldwin 281, 292 y. Whiltey 126 Hatch V. Hatch ....130, 134, 136, 144 y. Smith 292 Haven v. Streets 726 y . Pilchards 294 Hawker v. Hawker 786 Hawkins v. Obin 682, 826 V. Chappel 564 V. Kemp... 299, 612, 562 667 736, 756 y. Luscombe 671 Hawlcy V. Cramer 34, 36, 150, 152 480, 482, 658, 539, 593 V. James... 301, 30.3,321, 492 493, 494, 733 PAGE. Hayes v. Blanks 666 V. Jackson 504 v. Kershaw 601 Hayne V. Hayne 194 Haynesworth v. Cox 723, 735 Haywood v. Ensley 352 v. Hay ward 674, 679 Head v. Head 693 Healy v. Alston 862 Heard t. Danniel 135 V. Horton 804 Hearley v. Alston 813 Heath v. Knapp 826, 832 T. Dendy 312 V. Heath 676 Heatham v. Hall 667, 668 Heaton V. Hassel 679 Heck V. Clippenger 670 Heirs V. Welch 667 Helfinstine v. Garrard 781 Hemming v. Munkley 740 Hempstead v. Johnson 296 V. Watkins. 437 Henage v. Lord Andover 19 Henchman v. Attorney General. . . 60 Henckell v. Daily 839 Hencok V. Minott .307 Henderson v. Mclves 840 V. Vaulx, 620, 627, 628, 633 V. Warmack 690 V.Williamson 793 Hendrick v. Robinson 294, 665 Henry V. Graham 301, 304, 311 V. Morgan . , 201 Henson V. Ott 492 Henwell v. Whiteker 306 Hepburne v. Hepburne 626 Heme v. Meers 553 Heron v. Heron 316 Hertell v. Van Buren 486 Hester v. Hester 760, 855 Hewett v. Crane 133 V.Foster 710 V. Hewett 383 V. Morris 633, 635 Heydock V. Stanhope 291 Hey wood V. Cuthbert 642, 648 Ilibbard v. Lamb 377 Hibbert v. Cook 92, 639 Hickey v. Hickey 312 Hicks V Hicks 593 V. Wrench 701 Hicox V. Graham 701 Hide V. Haywood 655 r. Blake 279 Higgins V. Whitson 571, 581 High V. Warley 319, 321 Highbee V. Rice 782 Hill V. Bishop of London. 25, 503, 604 V. Cock 503 V. Cook 61 V. Hill 504, 637, 666 V.Simpson 198 Hillary v. Waller 8(52 TABLE OF CASES. xxvu PAGE. HillRgass V. Hillegasa 771 Hine V. DoJd 200 Hincks v. Nelthorp 693 Hind V. Selby 627 Ilinely v. Margaritz 185 Hinley v. Phillipp 703 Hinton V. Ilinton ] 62 Hinves v. Hiiives 62(>, 631, 639 Hitchcock V. Watson 145 Ilobbs V. Hull 696 Hobertv. Countess of Suffolk. .25, 603 504 Hobson V. Bell 769 Hockley v. Brantock 592 Hodge V. Hawkins 696 Hodgson V. Hodgson 649 V. Shaw 93 Hoes V. Van IIoesen.302, 303, 304, 305 306, 308, 3 '3, 314 Hoge V. Hoge..l88, 189, 191, 487, 489 Hoit V. Underbill 185 V. Holcomb 170 Holcomb V. Burridge 294 Holder V. Durbin 35 Holand v. Adams 493 Holdiidge V. Gillispie 23, 594 Holeuian v. Loynes .137, 138, 139, 482 Holford V. Phipps 816, 861 Holgate V. Hawarth 686 Holland V. Hughes 601 V. Prior 198 Hollaway V. Headingtor. , .38, 631, 532 HoUiday v. Hudson 305 Holmes v. Dring 582, 688 V. Holmes 655, 726 V. Blogg 185 V. Williams 762 Home V. Midcraft 315 Houel V. Barnes 363 Honor V . Morton 683 Hook V. Goodwin 699 Hoot V. Lorrell 688 Hooper v. Rossiter 637 V. Tuokerman 287, 300 V. Burnett 137, 482 Hoover v. Hoover 314 V.Samaritan 687 Hope V. Lord Clifden 318, 319 V, Liddle 826 V. State Bank 472 Hopkins v. Hopkins 783 V. Bernard 854 V. llae 840 V.Ward 811 Hopper V. Adee 643 Hopping V. Burnam 206 Hornbeck's Ex'rs v. Am.B. So, 262, 337 Home v. Metres 144, 147 Hornbsy v. Finek 100 Horsely v. Chalyner 1 74 Horton V. Horton 673 Horridge v. Ferguson 726 Hossack V. Kdgcrs 713, 885 Hosford V. Merwiu. .476, 487, 488, 489 PAGE. Hoskins v. Hoskins 103 Hospital V. Amory 366, 41 2 Ho*chkiss V. Fortson 160 V. Humfry 320 Hough V. Richardson 172 House V. Chapman 61, 496 V. House 3(;2 Hovey v. Holcomb 352 V. Kenney...210, 213, 218, 221 222, 229, 723 V. BIackman.629, 647, 549, 575 578, 679 Hovenden v. Ld Annesley 720 Howard v. Digby 689 v. MolTatt 675 V.Rhode 384, 710 Howe V. Earl of Dartmouth. . .601, 621 622, 628, 630, 639 V. Home 625, 6.39 V. Weldon 165, 169, 171 Howell V. Price 301 Howell V. Ransom 137, 133 V.Barnes 750 Howgrave V. Cartier 318, 319 Howley v. Ross 392 Hoxie V. Hoxie 435 Hoy V. Master 226, 229 Hubbard v. Cumming 135 V. Lamb 333 Hubhern v. Waterman 291 Hudson V. Carmichael 688 V. Hudson ..105, 149, 642, 543 719 V. Wadsworth 620 Hughes V. Garth 204 V. Kearney 37 V. Smith 596 V. Wells 687 Huguenin v. Baseley 154, 164 Hulme V. Tenant 649, 682 Hume V. Edwards 316 Humphry v. Bullen 682 V. Richards 649 v. Taylor 493 Hunt V. Bass -. ] 50 V. Crawford gn V. Matthews.. 124, 134, 189, 194 V. Warwick 342 V. Watkins , 625 Hunterv. Atkins,134, 136, 138, 153, 154 V. Ilallett 6i,3 v. Stembridge 731 v. Stembridge 217 Hurton v. Ducey 692, 693 Hurn V. Mills 204 Hustler V. Tilbrook 493 Husband v. Davis 566 Hutchinson V. Findall... 157, 169, 160 v. Hammond 494 7- Lord 571, 681 Hylc V. Brier 696 Hylton V. Heydon 121, 144 Hynes v. Rodington 68 Hyslop V. Clark 288, 290 XXVlll TABLE OF CASES. I. PAGE. Iddings V. Briies 565, 558 Imhoff V. Witmer 161 Imlay V. Huntington 650, 658 Incorporate So. v. Richard. . . .258, 259 Inchiquin V. French 12, 351 Inglis V. Trustees of Sailor's Snug Harbor 240, 249, 259, .-537 Ingraham v. Baldwin 156 V. Griggs 290 V. Wheeler 290 Ingram v. Ingram 131 Innes v. Lansing Ill Ins. Co. V. Kay 683 Irnham v. Chi'ds 1 86 Irvings v. De Kay 402, 713 V. Kirkpatrick 175 Irwin V. Ives 477 Isaac V. De Friez 727 Isenhart v. Brown 3l2 J. Jackson v. Babcock 805 V. Beach 345 V. Blaushans 726 V. Bodle 282 V. Bateman 476 V. Bull 226, 804 V. Burtis 757 V. Cadwell...37, 202, 820, 821 V. CroU 173 V. DeLaneey 805,826 V. Dunlop 490 V. Enibler 806 V. Etz 344 V. Fitzsimons 341, 344 V. Fleeder 721, 735 V. Garnsey 37 V.Green 341 V. Hamilton 841 V. Hirris 804 V. Harlwell .33.3, 334 V. Hobhouse 683 V. Housul 805 V. liurlock 60, 64 V. Jackson 601 V. Kelley 60, 68 V.King 155 V. Kinwell 581 V. Leek 205 V. Ligon 766 V. Lunn 341 V. Malsdorf 476, 477 V. Martin 804 V. Merrill 805 V. Miller 476 V. Moore 5 V. Morse 476 V. Newton 581, 585 V. I'arkhurst 490 PAGE. Jackson v. Phipps 282 V. Price 862 V. Robins 792, 804 V. Robinson 226 V. Rowe 204 V. Sanders 343 V. Schauber 750 V. Sill 303 V. Smith 344 V. Spark 205 V. Sternburgh . - 476 .V. Sublett 682 V. Van Dolfion 36 V. Walsh 36, 558 V. Welles 804, 806 V. Woolsey 556 Jaest V. Eramett 585 James v. Allen 246, 506 V. Frearson 528 V. Greaves 174 V. Johnson 813, 861, 862 V. Moffit 294, 512, 535 V. Morey 813, 862 V. Plant 815 V. Williamson 232, 584 Jamison v. Lindsley 699 V. Bradly 670 Janson v. Ostrander 331, 335 January v. Points 585 Jaques v. Methodist Ch..649, 650, 687 68S Jee V. Thurlow 676 Jetferys v. Jefferys 30,38, 501 Jefferys v. Reynous 318 Jervis v. Silk 641 Jenks V. Alexander 477 Jenett v. Palmer 820 Jenkins v. Eldridge 848 V. Milford 811 Jenkins V. Fry es 315 V. Plume, 133, 165, 167, 584, 588 .Jennings v. Davis . . 591 V. Jennings 402 V. Mennel 136, 482 Jenners v. Howard 1 59 Jcnneson v. Graves 475 V. Hapgood 36, 146, 685 June V. Budd 750 Jevon V. Bush 385 Jewett V. Woodward 840 John V. St. John 130 Johnson v. Ball 3.'>6 V. Clark 351 V. Clarkson... 58, 61, 67, 351 V. Corbett 302 V. Fleetwood, 3, 271, 398, 400 V. Happen 454 V. Hood 62 V. Humphreys 715 V. Johnson.. 68, 134, 546,575 V. Jones 665 V. Leek 200 V. Mavne 236 V. Ogleby 292 TABLE OF CASES. XXIX PAGE. Johnson v. Twist 102 V. Wood 496 Johnston v. Liimb 688 V. Newton 699, 600 V. Rowland 5, 229 V. Swan 236 Jones V. Bramblet 803 V. Caswell 127 V. Davis 93 V. Dawson 639 V. Earl of Suffolk 747 V. Foxhall 704, 593, 694 V. Jones 319 V. Jones 810 V. Lewis, 705, 711, 581, 583, 600 V. Lockhart 669 V. Martin 124 V. Mitchell 68, 71 V. Price 810 V. Roberts 140 V. Sackett 710 V. Scott 300 V. Selby 316 V. Shir wood 639 V. Smith,... 146, 556, 558. 202, 204, 483 T. Stanley 199 V. Westcomb 104 V. Williams 306, 699 V. Williams 853, 854 Jubbor V. .lubber 18 Judson V. Gibbons.. 510, 511, 527, 533 Justices V. Ilaygood 698, 699 Juvenal v. Jackson 199, 200, 238 K. Kane v. Bloodgood 715 V. Gott 491, 492 Karr v. Karr 596 V. Laird 595 Kaufman v. Crawford 613 Keales v. Burton 732, 737 Keat V. Allen 122 Keble V. Thompson 573,679,588 Kee V. Vasser 683 Keel in v. Brown 96 Keely V. Monck 740 Keene v. Deardon, 719, 752, 774, 783, 787, 795 Kellaway v. Johnson 591 Kcllett V. Kellett 506 Kollcy V. Johnson 442, 475 Kelloggsv. Slawson .... 283, 284, 286 Kclsey V. Western 306, 307, 313 Kemp V. Coleman 121 V. Kemp 215, 722, 725, 732 Kerr v. Day 326 Kenaw v. Carter 592 V. Paul 856 Kendal v. Granger 244, 246 PAGE. Kenan v. Hall 593 Kennedy V. Daly 197 Kennedy exrs v. Ware 501 Kennedy v. Green 203, 204 V. Kennedy 157 V.Kingston 215 V. Stansby 101 Kennel v. Abbott 188, 192, 39 Kenncy v. Udall 676 Kenottv. Hill 165,166 Kenrick V. Bransby 187 Kerlin v. Campbell 63 Kernes v. Swope 201 Kerr's adm'r v. Sneeds 595 Kerrs v. Waters 544,665 Ketchum v. Durkee 110, 111 V. Ketchum 699 Kidd V. Rowlinson 118 Kilby V. Stanton 525 V. Sneyd 538, 549, 660, 582 Kilpin V. Kilpin 12, 15, 16, 351 Kimball v. Reading 613 King V. Dawson 25, 43, 59 V. Dcnnison, 349, 385, 60.3, 504, 506 V. Donnelly, 298, 299, 326, 385, 394, 402, 610, 612, 535, 5.36 V. Hake 319 V. Howlitt 165, 167, 168 V.King 301 V. Mitchell 60, 503 V. Philips 560 V. Strong 68 V. Watson 289, 294 V. Woodhall .. 68 V. Woodward 567 Kingsland v. Betts 635 Kinnard v. Kinnard 620, 632 Kinskern v. Lutheran Church, St. John 250, 277 Kinsman v. Kinsman 208 Kipp V. Dennison 544, 546 Kirby v. King 602 Kirkpatrick v. McDonald 16, 33 Klapp, a-signee v. Shirk, 280, 285, 296 Kline v. Beebe 185 Knight V. Buughton 51, 223 V. Camron 740, 746 V. Knight... 47, 210, 223, 224, 226, 227, 684 V. Lord Plymouth 600 V. AVhitehead 68 Knightly V. Knightly 96 Knott V. Cotter 225, 593 Knox V. JenkF 782 Knox V. Pickett 700 Knowles v. McAnely 656 Krider v. LofFerty 203 Kuhler v. Hoover 4ii8 KuUum v. Smith 475 Kyle v. Barnett 594 XXX TABLE OF CASES. L. PAGK. Lacy V. Wilson 818 Lady Aruntlle v. Phipps 118 Lady Griswold v. Duchess of Beau- fort 104 La Fort v. Delafield 358 Laidlow V. Organ 172 Lake v. Delambert 349, 377 V. Graddock 91 V. Ilouney 483 Lamb v. Milnes 667 Lamlee v. Hamlin 122, 123 Lancaster v. Dalon 662, 762 Laney v. Wilson 480 Lance v. Norman 124 Landon v. Morris 208 Landis v. Scott 558, 570, 586 Lane v. Debenhams, 365, 542, 543, 759 V. Di^hton 29 V. Colman 859 Lancy v. Duke of Athol 667, 678 Lang V. Eopke 750 Lange v. Worke 126 Langford v. Gascoigne 616 Langhorne v. Payne 478 Langham V. Sanford 505 Langley v. Sneyd 862 LangstafFv. Taylor 140 Langston v. OUivant 617 Langworthy v. Chadwick 620 Lanoy v. Duke of Athol. .317, 667, 678 Lansing v. Russell 192 V. Woodworth 300 Lanson v. Lanson 104 La Terriere v. Bulmes 636 Latrobe v. Tiernan 539, 569 Lattipier V. Housen. 524, 527 Lavander v. Stanton 765 Lawley v. Hooper 113 Lawrence v. Bowie 7U8 V. Davis 281, 293, 297 V. Kiddes 126 V. Lawrence 197 V. Trusfs of Leaks orphan, 112 Lawless v. Shaw 18, 46, 214 Lawson v. Lawson 104 V. Copeland 582 Leach v. Leach 570 Leake v. Robinson 646 Leavans v. Butler 535 Leavitt v. Beirne 739 V. AVorstcr 313 V. Yates . 707 Lechmere v. Levin 229 V. Charlton 317, 321, 106 V. Hemage 46 Lee V . Randolph 385, .384 V. Brown 643, 644, 645 Leffles V. Armstrong 511 Leggett V. Dubois 39 V. Hunter, 350, 357, 389, 392, 209, 515, 524, 534, 535, 540, 543, 665, 728. PAGE. Leggard v. Hodge 89,90 Leggv. Legg 679 Legend v. Garland 650 V. Johnson 693 Leiby v. Wolf 204 Leigh v. Barrey 544, 565, 569, 575 Leisenring v. Black 139 Le Jeune v. Budd 750 Lemon v. AVood 701 Lemmonds v. People 707 Lemon v. Whitney 5, 14, 15 Lench v. Lench 90 Le Neve v. Le Neve 197, 822 Lentilhon v. Moffatt 288, 290 190 Leonard v. Freeman 786 Lerd v. Munday 833 Leeke v. Bennett 620 Lees v. Sanderson 549 Lessee of Drake v . Ramsey 185 Lester v. Lester 679 Le Vasseur v. Scranton 682 Levy y. McCartie 341 Lewis V. Adams 667 V. Darling 309, 313, 315 V. J. A 137, 138 V. Hillman 146 V. Maddock 90 V. Madison 201 V. McLemore 170 V. Reid 537, 540 V. Smith 764 V. Starks 867 V. Yale 658 Lewellen V. Mackworth 720 Lillard V. Turner 650,657,658 Lincoln v. Allen ... 586, 593 V. AVindsor 838 V. Wright 571 Lindsell v. Thacker 826, 833 Lindsey v. Harrison 690 V. Lindsey 718 Linton v. Baley 754 Lippincott v. Barker 289 V. Ridgway 735 V. Warder 620 Liscomb v. Winteringham 243 Liston V. Liston 555 Litchfield v. Cole 61 1, 733 V. Baker 521 V. White 234, 571, 581 Littletale v. Gascoigne 592 Litton V. Baldwin 662 Livingston v. Freeland 315 V. Livingston, 301, 309, 476, 499 V. Newkirk 331 V. Peru Iron 171 Lookwood V. Stockholm 682 Lockhard V. Risly 616 Lodge V. Hamilton 679 Lond V. Sargeant 93 Long V. Dennis 740 V. Cason 720 V. Israel 700 TABLE OF CASES. XXXI Long V. Long PAGE. 763 PAGE. Mackie v. Makie 626, 634 Norcoiii' ..'.'.' 642 1 Mackintosh v. Barber 756 Longmore v. Brown, 726, 727, 686, 593 Longman v. Lewis 231 Lord Buford v. Arch, of Armagh.. 690 Lord V. Branton 741 Lord Braybrookv.Inskip, 820, 567, 567 Lord Carteret v. Paseall 682 Lord Cawdor v. Lewis 92 Lord Eldon in Reid v. Shergold. .. 762 Lord EUenborough in Trent v. Hanning 783 Lord V. Godfrey 626 Lord Hardwick in Casbourne v. Scafe 639 Lord Hinchimbrook v. Seymour. .. 763 Lord Inchimquin v. French 301 Lord Kensington v. Bouverie 625 Lord Mahon v. Earl Stanhope .... 67 Lord Mansfield in Burges v. Wheate 327 Lord Milsington v. Earl of Mul- grave 789 Lord Montfort v. Lord Codogan . . . 528 Lord North v. Pardon 100 Lord Say and Seale v. Jones 750 Lord Shipbrook v. Lord Ilinchen- brook 544, 549, 579 Loughborough v. Loughborough, 491, 472, 475 Lounsbury v. Purdy 475 Loury v. Houston 682 Love V. Mclntyre 464 Loveacres v. Blight 790 Lovell V. Field 583 V. Minott.... 604, 606, 608, 613 Lowe V. Morris 858 V. Plaskett 684 Lowrey v. Fulton 636 Lowther v. Charlton 200 Lloyd V. Barton 742 V. Lloyd 306 V. Spellet 29, 707 Lucas V. Lockhart 217, 223 Ludwig V. Highly 806 Lupton V. Lupton 305,308 Lusk V. Lewis 496 Lyles V. Hutton 684 Lyman v. Parsons 492 Lynch v. Cox 476 V. Clark 340 Lynn v. Beaver 606 Lyon V. Lyon 145 Lyse V. Kingdon 817 M. Mabbotv. White 284 Maberly v. Strode 726 V. Turton 644 Maccubin v. Cromwell 5138 Macey v. Summer 723 Macnamara v. Jones. . . 840 Macauly V. Phillips 674, 677 Maddox V. Maddox 740 Maddsford v. Austwick 176 Madison v. Andrews 215 Magil V. Brown. 236, 258, 259, 326, 339 Magruder v. Peters 486 May wood v. Johnson 611 Mahorner v. Hope 63 Maitland v. Coles 319 V. Buckhouse 133 V. Irving 133 Major V. Lindley 670 Malin V. Kingsley ...18, 223, 224, 23ft Y. Malin 18, 158, 325 Mallet v. Smith 759 Mallen v. May 126 Manahan v. Gibbons ....546, 547, 574 4 675, 577 Mann v. Mann 478, 776 V. Betterly 156 V. Ballett 250 Manning V. Manning 707, 836 Manney v. Phillips 700 Mansfield v. Mansfield 692 Mapp V. Elcock 602 Marbury v. Brooks 294, 296 Marker v. Marker 619 Markhouse v. Markhouse 726 Marks v. Pell 192 Marlow v. Smith 825 Marr v. McCullough 635 Marriot v. Marriot i88 Marsh v. Evans 316 V. Hayne 635 V. Hunter 592 V. Wheeler 68, 472, 761 V. Pike 93 V. Marsh • • • • 303 Marshall V. Bremner 625, 631 V. Fisk 781, 782 V. Hu'chinson 294 V. Halloway 838, 842 V. Sladden 374, 617 V. Stevens 662 Martin v. Barrett 700 v. Ballou 804 v. Bank 350, 485 V. Margham 247 v. Martin 654 V. Rebow... 101, 606, 676, 676 677 V. Morgan 178 Mason v. McNeil 673 V.Jones 209,646, 728 V. Limbury 213, 215, 230 V.Martin 148,554, 655 V. Mason 733,813, 862 V. AVait 681 V. Willard 166 Massey v. Banner 681, 582, 597 Y. Mcllwayne. 480 XXXll TABLE OF CASES. PAGE. Massey v. Sherman 211, 224, 230 Masters v. Masters 316 Matford V. Matford 88, 80 Mathisv.Guffin 492 Mathison v. Clark 657 Mathew v. Hanbuvy 171 V. Baghouse 839 V. Brise i'82, 600 V. Ward ...557, 808, 811, 862 Matter of Oakcly 554 Matter of Mech. Bank 641 Mavberry v. Neely 670 Mayfield v. Clifton 673 Mayo V. Bland 312 Mayor of Coventry y. Att. Gen... 377 Mayor, &o., of Philad. v. Elliott . 326 335 McAllister V. Commonwealth 682 V. Marshal 290 McBee v. Loptis 820 MeCall V. Vallandigham » 435 V.Harrison 109 V. Peasley 854 McCammon v. Worrell 706 V. Petitte 477 McCampbell v. MeCampbell 313 McCann v. Bradley 701 McCarty v. Orphan Asylum 249 McCastney v. Bostwick 490 McCaw V. Blunt 851 V. Lovis 157 McConnel v. Gibbons 146 McCord V. Ochiltree 342 McCosker v. Bradley 392 V. Golden 688 McCoy v. Scott 358 McCrocklin v, McCrocklin 672 McCreary v. Sommerville 343 McCubbin V.Cromwell... 352, 510, 533 McCuUough V. Wilson ... 205 McDermot v. Kealey 647 McDonald v. Gray 756 V. Ryee 63, 61, 62, 69 McDonnel v. Harding 682 V. Walgrove 620 V. Walker 830 McDowel V. Lawless 302 M(*Dowel Exec'rs v. Murdock 329 McGan V. Marshall 183 McGirr v. Aaron 331 McGloughlin V. McGloughlin 315 McHardy v. McHardy 306 Mclntyre v. Hughes 601 Mclntyre School v. Zanesville.326, 486 V. Skinner 445 v. Humphries 192 McKay v. Green 301, 304, 308, 313 499 McKeman v. Phillips 688 McKin V. Handy 736 McKinney V. Rhodes 297 McKorkins v. Bond 385 McLanahan v. McLanahan 362 McLaughlin v. McLaughlin 804 PAGE. McLeachlan v. McLeachlan 304 McLean v. McDonald 620, 805 V. Fowler 93 V. McLean 85, 106 McMiller v. Robinson 640 McMinn v. Richmond 183 MeMurray v. Montgomery .... 570, 579 McNeillidge v. Galbraith 216, 217 731 McNish V. Pope 558 McOdin v. Logan 368 McQueen v. Farquer 196, 764 McWorton v. Benson 840 Meacham v. Sternes 840, 844 Meacher v. Youna: 647 Mead V. Lord Orrery 197, 818 V. Phillips 285, 287, 288 Meakings v. Cromwell.. .764, 765, 759 Jjieals V. Brandon 201 Mechanics' Bank v. Edwards 13 Meeks v. Wilson 119 V. York 143 V. Ketilewell 354 Meinertzhagan v. Davis 366, 370 Melsington v. Mulgrave 739 Mence v. Mence 44 Mennard v. Wilford 362 Mercien v. The People 693 Mercer v. Hall 749 Meredith v. Heneage..46, 46, 218, 226 Meriam v. Harson 687 Mesgrettv. Mesgrett 739, 742, 749 Merrills v. Englisby 296 V. Moore 854 V. Swift 297 Merritt v. Farmers 826 V. Lyon 680 V. Smith 690 Merry v. Rvves 750 Mertin v. Joliff 204 Mesick V. Mesick 573, 578 Messenger v. Clark 688 Mctealf V. Cook 662 V. Pulvertoft 207 Methodist Ch. v. Jaques 33, 689 V. Remington 258 V. Wood .^3 Meyn v. Belcher 195 Meyres V. Simonson 622, 631 Middleton v. Middleton 132 v. Reay. 376 V. Spicer 132, 807 Mildmay v. Mildmay 692 Miles V. Leigh 306 V. Wijter 635, 643 Millard v. Case 200 V. Eyre 384 Miller v. Bacon 700 V. Braddon 369, 361 V. Chittenden 445 V. Gable 241, 250, 277 V. Match 629, 757, 764, 799 V. Mclnter 721, 718 V. Phillips 635 TABLE OF CASES. XXXlll PACK. I Miller v. Rowen 235 V. Stokely 451 V.Williams 662, 689 Millon V. Hayden 131 V. Millon 476 Mills V. ArgoU 296 V. Brown 626, 631 V. Dyer '''26 V. Farmer.... 240, 241, 242, 244 263 v. Mills 621,622, 6.30 V. Roberts 637 Minet v. Vulliamy 273 Minor v. AVeekstead 306 Minot V. Boston Asylum 243 V. Preseott 766 Minturn v. Maine 393 V. Sej'mour 6" 1 Minuse v. Cox 585, 704, 713, 750 Mirehouse v. Scaife 305, 315 Mitchel V. Holmes 851 V. Mitchel 302 V.Reynolds 126 V. Pitney 350 V. Sciver 678 V. Yates 667 V. Zimmerman 171 Mitford V. Mitford 678 Mocatto V. Liudo 319 Moffatt V. Burnie 635 V. McDowal 294 Moggridee v. Thackwell, 218, 224, 239 240, 241, 242, 727, 732 Mollan V. Griffeth 3()2 Monell V. Monell 546, 573, 574 Monroe v. AUaine 556, 585 V.James 529, 799 Montesque v. Sandys 482 Montgomery Ex'rsv. Kirksey,285, 300 V. Milliken.... 760 V. Agrl Bank, 662 Moor V. Collins 294, 297 V. Crofton 501 V. Moore 484 Moore v. Jackson 862 V. Lockett 753 V. Pelt 835 V. Perry 532 V. Prance 706 V. Whittle •••• 301 Moran V. Hays 527 Morby V. Morby 753 Mordecai v. Parkes 811 More V. Clay 199 v. Ellis 696 V. Ford 557 V. Mayhew 199 Morgan V. Hughes 5 V. Edan 662 V. Randall 353 v.Reid 393 Morice v. Bishop of Durham. . .19, 43 53, 218, 232, 239, 244, 247 Morley v. Bird 498 c PAGE. Morley v. Morley 581, 625, 639 v. Reynoldson 740, 741 Morrell v. Dickers 707 Morris v. Morris 618, 855 V. Wallace 603 Morrison V. Kelley 417 V.Morrison 838, 843 Morrow v. Bren zs 62, 66, 496 Mortlock V. BuUer 617, 761, 769 Morton v. Morton 763 V. Barrett 774 V. Southgate 733 Mortimer V. Ireland 828, 830 V. Moftatt 620 V. Watts 739 Mosley v. Marshall.. 617, 618, 622, 625 626, 639 V.Ward 704 Moses V. Levi 548, 549, 673, 679 V. Murgatroyd ....294, 307, 703 706 Mosey v. Herrick 487, 489 Mott V. Baxter 784 Moulton V. Wendall 700 Mountford V. Scott 201, 2o2 Mousley v. Carr 593 Move V. Rambeck 83 Moyle V. Moyle 550, 599 Mucklestone V. Brown 15, 197 Mucklow V, Fuller 528, 529 MuUis V. Motteux 179 Mumford v. Murray, 552, 569, 573, 574 759 Mumma V. The Potomac Co 110 Munch V. Cockwell 537, 597 Munday v. Lord Howe 647 Munroe v. AUair 36 Murdock v. Hughes 715 Murray v. Ballon 197, 400 V. Burlee 64& V. Feinour 609 V Gleason 355 V. Gleason 638 V. Judson 285 V. Lord Elibank 677, 678 Murry v. Murry Ill Murrell v. Cox 507, 549 Murphy v. Hurburt 352 Myres V. Myres 582, 642, 674 V. Wade 643 N. N. A. Coal Co. V. Dyett 656 Nab V. Nab 9, 356 Nagle V. Baylor 161 Naglor V. Arnitt 810 Nairn v. Prowe 85, 88 Nairns V. Majoribanks 639 Nance v. Coke 620 Nanney v. Martin 674 Nash V. Morley 234,238 XXXIV TABLE OF CASES. PAGE. Nash V. Smith 503 Naylor v. AVineh 145, 556 Neally v. Greenough 163 Nedby v. Nedby 688 Neill V. Keers 476 V. Morley 182 Neilsonv. Blight 294 V. Layon 783 Neitncewicz v. (iahn 688 Nelson v. Dunn 28(1 T. Logan 809 V.Moore 498 Nesbit V. Mnrry 101 Nettleship v. Nettleship 689 Neville V. Fortescue 626 V. Walkinsons, 122, 124, 130 171 New V. James 840 Neweomb v. Williams 800 Newcomer V. Hassard 683 Newenham V. Pemberton 666,676 Newhallv. Wheeler 789 Newfort v. Cook 646 Newill V. Saunders 671, 785 Newkirk v. Newkirk 805 Newland V. Champion 198 T. Paynter 668 Newman V. James 668 V. Barton 94 V.Nightengale 726 V. Paynter 140 Newson V. Chrisman 454 Newsome v. Newsome 855 Newstead V. Johnson Hil, 103 V. Searles 200 Newton V. Bronson 537, 760, 761 V. Hunt 165 Nicholas v. Hodger 851 Nichols V. McEwer 286 V. Crisp, Arch 101 V. Nichols 162 V. Postelt.hwait 305 V. Stratton 126 V. Thornton 476 V.Walworth 789,811 Nicholson v. Fulkner 565, 712 V. Leavitt 284, 286 V.Sherman 150 V. Wordsworth 515, 374 NicoU V. Mumford.. 110, 179. 280, 281 294, 296, 299 V. N. Y. & E. R. R. Co.... 333 Niles V. Stevens 537,736 Nesbett v. Murry 506 Nix v. Bradley 691 Nixon v. Rose 148, 650, 662, 667 Noble v. Meymott 563 Noel V. Jevon 825 V. Lord Henley 314, 496 V.Robinson 94 Norbury v. Calbeck 707 Norcum v. D'Qinch 734 Norcross v. Widgery 205, 206 Norman v. Frazier 478 PAGE. Norris v. Vance 185 V. Wright 589 North Hempstead v. Hempstead . . 337 North V. Turner 292, 293, 299 Northcroft v. Martin 350, 476, 485 Norton v. Leonard 774, 781 V. Norton 789 V. Stone 479 Norway v. N orway 714 Nourse v. Finch 104 Nowlan V. Nelligan 224 Nunn V. Harvey 642 V. AVilsmore 696 Nurse v. Yerworth 862, 840 Nye V. Bartlct 732 Nyres v. Blakeman, 651, 652, 657, 671 672, 686 0. O'Brien v. Moonev 306 Ochiltree v. Wright 525, 547, 576 Ockaston v. Heap 736 Odell V. Bucks 155 Oer V. Newton 525 Oerlager v. Fisher 514 Ogilvie V. Ogilvie 585 Oglander V. Oglander 350 Ohio Ibs. Co. V. Ledyard 205 V. Ross 205 Oldhom V. Carlton 100 V. Hand 139 V. Litchfield 189, 193 Oldman V. Stater 506 Oliver v. Court 568, 570, 579 V.Dougherty 445,476 V. Pratt 200, 203, 715 Olmstead v. Herrick 296 Olwin's Appeal 408 Ommany v. Butcher.. 19, 51, 239, 245 Ontario Bank v. Root 15 O'Neil V. Henderson ■ 511 Orelous V. Chatham 355 O'Riley v. Alderson 374, 377 Orr V. Hodgson 341 Orser v. Hoag 344 Orton V. Knab 476, 477 Osburn V. Morgan 676 Osgood V. Franklin 569, 735 Osmond v. Fitzroy, 132, 155, 156, 158 Ostranderv. Livingston 479 Oswell V. Probert 643,671 Ousley V. Anstruther 692, 613 Overseer v. Taylor 135 Overton v. Beansone 135 Owenv. Missionary So., 239, 241, 244 245, 274 V. Owen 498 V. Walker 645 Ozley V. Husband 658 V. Shelheimer 650,658 TABLE OF CASES. XXXV p. PAGE. V. Ester 675 V. Page 102, 475, 476, 498 Paget V. Perchard 117 Paige V. Brown 279 Palmer v. Cross 439 V. Neares 123 V. AVfaeeler 195 V. Young 30 Parish v. Wood 495 Parker v. Bloxara 555 V. Boyd 543 V. Brooks 6 70 V. Converse 795 V. Gilliam 198 V. Grant 175 V. Gwynn 853 V. White.... 147, 687, 688, 689 Parks V. Parks 271, 787 V. White 557 Parrott v. Tweby 599 Parsons v. Bokes 211, 224, 230 V.Converse 416 V. Darrington 579 V.Lyman 319 V. Mclntyre 477, 479 V. Parsons 677, 679 V. Patts 305, 306 V. Thompson 676 V. Winslow, 377, 384, 614, 640 Partington v. Eglinton 157 Partridge v . Delano 500 Pascall V. Thurston 682 Pascog Bank v. Hunt 487 Pate V. McClure 377, 383 Patre v. Clark 198 Patton V. Crow 751 V. Lines 434 V. Randall 755 V. Thompson, 148, 149, 555, 557 Paul V. Canipt/jn 223 V.Chouteau 443 V. Mingo 504 Paup V. Mingo 103 Payton v. Pladwell 123 Peacock v. Evans 165, 167 V. Monks 683, 689 Pearpant and Lord v. Graham, 280, 289 Pearson v. J amison 760 v. Lane 77 V. Laniel 201 V. Pearson 634 V. Morgan 172, 175 Peat V. Cram 602 Pechel V. Fowler 617 Peebles v. Watt 733 V. Reading 480 Pclham V. Anderson 265 Pell V. Ball 701, 712 Pemberton v. Parke 498 Penn v. Ld. Paltimar 327 Pennell V. Diffield 582 Penny v. Davis 528 PAGE. Penny V. Turner 215 Pensenneau v. Pensenneau 476 Pentland v. Stokes 720 People V. Conklin 329, 344 V. Etz 344 V. Houghton 350, 485 V. Iron 343 V. Morton ...350, 389, .392, 393 395, 397 V. Utica Ins. Co 334 Peppercorn v. Wagenan 532 Perkins v. Bradley 201, 202 Per Lord Hardwick in Groydon v. Hicks 747 Perroneau v. Perroneau 615 Perry v. Craige 718 V. Mader 665 Person v. Warrin 156 Peter V. Beverly 735, 756, 757 Petrie v. Shoemaker 155 Pettit V. Smith 101, 103 V. Pettit 121 Petty V. Mader 665 V. Stewart 97 V.Moore 320, 321 Petters v. Elanson 592 Peyton V. Bury 542, 707 v. Rowlins 159 V. Smith 855 V. McDowal 700 Phalen v. Clark 717 Phoenix Bank v. Sullivan 293 Philadelphia V. Elliott 25l» Phillips V. Amesley 314 V. Belden 718 V. Crammand 22, 33 V. Duke of Bucks 174 V. Manning 800 V. Phillops 62, 66, 105 V. Uines 443 Picket V. Everett 679 V. Logan 163, 186 v. Sutler 160 Pickering v. Dawson 179 V. Shotwell....238, 326, 337 v. Vowlers 827, 839 Pickstock V. Lyster 294 Pidcock v. Bishop 172, 179 Pierce v. Thornley 674 V. Fuller 126 V. Wanning 134, 144 Pierson V. Manning 297, 3U0 V. Garnett...51, 224, 230, 231 Piety V. Staee 704 Pike V. Collins 674, 676 Pillow's Heirs v. Shannon's Heirs, 819 Pingry v. Washburn 128 Pink V. De Thutbgate 733 Pinkett v. Wright 354 Pinkston v. Brewster 715 Pinney v. Fellows 476, 669 ■ V. rancher 319 Pitcairn v. '"igbourne 122 XXXVl TABLE OF CASES. PAGE. Pitcher v. Rigby 140 Pitt V. Collingham 171 Pitt V.Smith IfiO Pittenger v. Pittenger 159 Pittson V. Blanchard 110 V. Horn 477 Plank V. Schermerhorn 281, 285 Platainnre v. Staple 39 Plenty v. AVest 30.3 Pockley v. Pockley 302 Pocock V. Reddington 704, 709 P. of Edinburgh v. Anbury 273 Podmore v. Gunning ...15, 46, 52, 125 188, 197, 226 Poindexter v. Gibbons 865 Poillon V. Martin 140 Pollard V. Merrell 667, 670 Pollock V. Croft 749 Polley V. Seymore 79 Pool V. Bathurst 368 V. Pass 711, 810, 817 Pooley V. Budd 818 Poor V. Hazleton 679 V. Mial 59 Pope V. Pope 225, 229 Popham V. Brooks 164 Porter V. Williams 286 Portlock V. Gardner 152, 718 Post V. Mockall 851 Potter V. Bank of Rutland .. .670, 806 V. Chapin....234, 259, 263, .339 362 T. Chapman 733 V. Entz 701 V. Watts 710 Powell V. Dillon 204 V. Jenkins 312 V. Merritt 50.3, 808 T. Robinson 96 V. Murry 146, 718 V. Powell 475, 669, 858 Powers V. Bailey 90 V. Burdell 318 V. Jackson 301 Powley V. Clockuiaker's Co 333 Powlett V. Atty. Gen 327 Pratt V. Gladdon 100 V. Slackden 28 V. Thornton 481, 484 Pray v. Price 182 Prentice v. Achorn 160 Prescott V. Prescott 497 V, Tyler 327 Presley v. Rogers 439 Preston v. Tobin 201 Prevo V. Walters 475 Prevost V. Grata 35, 143, 408, 717 Price V. Blackman 719 V. Hathaway 64 V. McDonald 206, 208 V. Maxwell 236 V. North 95, 96 Pride V. Fooks 700, 713 Pring V. Pring 100 Pritchard v. Ames 667, V. Wallace Proof V. Hines 140, Prott T. Barker Prnudlcy v. Feilder Pultney v. Darlington Pugh V. Currey Purden v. Jackson Pusey V. Clemson Pushman v. Filliter 52, Putnam F. School v. Fisher. . .612, Pybus V. Smith Pye V. George. . GK. 668 487 163 154 688 491 33 681 847 226 754 767 683 179 Q. Quackenbush v. Leonard 480, 568 R. Raby v. Ridelhalgh 616 Rachfieldv. Careless 101,360 Rackham v. Siddell 826, 833 Radburn V. Jervis 315 Rafferty v. Clark 306, 315 Rahm v. McElrath 299 Raikes v. Ward 18 Rainey v. Green 620 V. Heath 633 Y. Marsh 774, 787 Rainsford V. Rainsford 648 Ralston V. Telfair 506 Puamesdell V. Sigerson 290 Ramlin v. Jenkins 506 Randall v. Brookey 101, 506 V. Errington 146 T. Metcalf 318 V. Morgan 614 V. Russell, 621, 622, 627, 628 629 Rankin v. Barnard 682 T. Loder 292 Ransom r. Lampman 271 Rapalyea V. Hall 685 Raphael v. Boehm 586, 594 Rapalyoa v. Rapalyea 304 Rashley v. Martin 707 Rathburn V. Dykeman 303 V Rathburn.. 42, 497 V. Plainer 288, '291 Rawson v. Lampman 399 Raybald v. Raybald 655, 690 Ray nor V. Pearsoll 583 Read v. Bea^y 692 V. Fitch. 33, 476 V. McNaughton 112 V. Norris 145 V. Robinson, 296, 297, 298, 407 501, 512 TABLE OF CASES. XXXVll PAGE. Read v. Sparks i 565 V. Truelove 513, 530, 63(i V. Warner 142 Redman v. Redman 123 Redmayne v. Moore 699 Redout V. Lewis 690 Redpath v. Rich 341 Rees V. Allvn 417 V. AValters 665, 673, 675, 676 V. Williams 592 Reeve V. Attorney General 227 Reeves v. Baker 223, 229 Reg. V. Dist. School 274 Reformed Dutch Church v. Veeder, 7, 780 Reid v. LiviDg;ston 669 Reinicker v. Smith 156 Rengo V. Binns 1 45 Ronnie v. Ritchie 683 Rex V. Wilson 553 Reynish v. Martin 748 Reynel v. Martin 742, 748 Reynolds v. Carter 700 V. Reynolds 306, 309, 31 2 V. Waller 155, 159 Rhinelander V. Barrow 718 Rhodes v. Rudge 31 1 Rice V. Cockhill 649 V. Townele 642 V. Thompson 579 Rich V. Ledenham 161, 19 V. Cockell 670 Richards v. Richards 499 Richardson v. Bright 185 V. Chapman 721, 729 v. Duncan 163 V. Ryan 558 V. Spencer 558 V, Woodbury, 486, 825, 826 V. Hayden 763 Richmond v. Van Hook 63 Riddle V. Emmerson 200 V. Mandaville 566, 94, 109 Rider v. Kidder 130 Ridgley v. Johnson 539, 565, 668 Ried v. Godwin 372 Rigdon V. Allier 97, 98 Ring V. McCoun 276,479 V. Harrington 160 Ringgold V. Ringgold, 550, 552, 558 571, 694, 599, 770, 851 Rinehart V. Harrison 494 Ripley v. Grant' 156 Ripple V. Ripple 305 Rishton v. Cobb 740 Rival V. Watkinson 626 Rivars v. Thayer 674 Roberta v . Gains 529 V. Governors 304 V. Roberts 121. 39 v. Wortham 303 V. West 050, 684, 691, 658 Robertson v. Wendell 704 Robins v. Embry 373 PAGE. Robins V. Hayward 593 Robbinson v. Addison 499 V. Allen 214 V. Bullion 250 V. Darfs ex'r (561 V. Governor 313 V. Martin 497 V. Pelt 554 V. Ridley. ■ 92 V. Robinson, 591, 592, 593 635 V. Townshend 321 V. Wheelright 683,685 Roche V. Hart 593, 586, 7(i4 Rodgers v. Gibson 7S4 V. Smith 662 Rogan V. A¥alker 425, 476 Rogers v. Cawood 206 v. .Jones 202, 821 V. Ludlow 786, 675 V. Murry 30 V. Rogers, 503, 604, 594, 606 692 V. White 688, 705 v. Ross 7(16 Roggers v. Dill 642 V. Murray 477 V. Patterson 587 v. Roggers 149 Ramkin v. Harper 442, 496 Rooch v. Bennett 688 Rorer V. O'Brian 666 Kose V. AVharton 673 Roseboom v. Mosher 529 Roseveltv. Elithorp.... 698,700,707 Ross V. Barclay 759,760 V. Hageman 477 V. Ross 64, 65 Rossett V. Fisher 770 Roth V. Howell 582,606 Rouche V. Williamson 341 Roundell v. Breary 90 Rowland v. Phelan 393 V. Witherdon 597, 546 Roy V. Duke of Beaufort 162 Rudisol V. Watson 667, 679 Rudyard v. Neirim 679 Rnggles V. Sherman 584 Rumph V. Abercrombie 156,157 Russell V . Allen 478 V. Clark 109 V. Jackson.... 34,63, 125, 351 V. Lasher 296 Rutherford v. Ruff 1 56 Rutland V. Duchess of Rutland ... 150 Rutledge v. Smith 556 Ryal V. Ryal 29 Ryan v. Dax 1 92 Ryder v. Beekerman 592 Ryder v. Beckerton 717 Ryland v. Smith 679 XXXVlll TABLE OF CASES. s. PAGE. Saddler v. Hobbs . . . 528, 543, 544, 572 573, 579 V.Jackson 196 Saltern v. Melhuish 194 Sale V. Moore 46, 52, 225, 226 Sallie V. Chandler 553 Sallmage v. Sill ....221, 222, 229, 288 Salmon v. Cutts 148, 656 Saloway v. Stranbridge 830 Salway v. Salway 582, 677, 679 Sammes v. Skinner 134 Sammes v. Richman 713 Sams V. Stockton & Curtis 434 Samwell V. Wake 307 Sanders T. Dehew 197, 480 Sanderson v. Walker 148, 566 V. White 259, 278, 411 Sande v. Niigee 368, 370 Sanford v. Howard 583 Sangson v. Garther 286 Sanson v. Rumsey 194 Sargent v. Howe 417 Satterwhitc v. Littlefield 859 Saunders v. Bournford 814 V. Rodway 692 Saunderson v. Walker 703 Savage v. Burnham • • • • 803 V. Dickinson 700 Say and Sele v. Jones 785 Sayne v. Flourney 679 Scales V. Maude • 501 Scarborough V. Bowman 668, 691 Sattergood v. Harrison 557, 838 Schenck v. Legh 318 Schieffelin v. Stewart 585, 594 School V. Fisher 299, 635 Schoelbert v. Drayton 765 Schoonmaker v. Vanwyke ....486, 492 554, 565 Schuyler V. Hoyle 679 Scott V. Davis 147, 563 V. Dorrey 850 V. Freeland 134 V. Hallingworth 635 V. Morris 289 V. Perkins 620 V. Salmond 310 V. Scott 123 V. Tayler 740,742, 744 Scovey v. Ross 137 Scruggs V. Davis 539 Scudder V. Crocker 848 Scully V. Delong 579 Scurfield v. Howes, 646, 647, 548, 572 674, 575, 577, 678 Seagrove v. Tvirwin 188 Seaman v. Cook 33, 34, 480 V. Stoughton 296 V. Van Rensselaer 76 Sear V. Ashwoll 502 Searing V. Brinkerhoff. . .285, 288, 290 V. Searing 679 PAGE. Sears v. Dillingham 629 Sears v. Hind 704 V. Shaper 133, 180, 500 Sedgwick v. Santon 131 See Bell v. Webb 718 Seeling v. Crowley 692, 693 Seeley v. Wood 506 Segond v. Garland 658 Seir V. Nutall 145 Seixas v. Wood 179 Selatter v. Collarn 839 Selby V. Jackson 182 Selden v. Vermilyea 356, 358, 40 1 Sergeson v. Lealy 182 Seton V. Slade 76, 492 Sewell V. Russell 288 Shannon v. Marmaduke 143, 484 Sharpe V. Axe 557, 838 Sharp v. Taylor 131 V. Sharp 368, 737 V. Pratt 767 Sharpland v. Smith ....707, 790 Shaver v. Radley 558 Shaw v. McBride 301, 305 V. Wright 789 Shearer v. Lofton 292 Sheldon v. Dod?e 280, 285, 286 V. Sheldon 476, 478, 567 Shelton v. Homer 759 Shepherd V. McEvor 197, 527, 536 V. Shepherd 669 V. Starke 854 V Mouls 692 V. White 477 V. Turner 717 Sherley V. Sherley 691, 670, 687 Sherrill v. Shirford 855 Sherrard v. Lord Harborough.. 25, 503 Sherman v. Burnham 686 Shibley v. Ely 619 Shine v. Gould 92 Shippen-s Heirs v. Clc>pp 750 Shirley v. Ferrers 278 V. Marshall 131 V. Martin 121 V. Shattuck 838, 869 Shiers v. Higgons 161 Shook V. Shook 539, 543, 669 Shore v. Wilson 251 Shortz V . Unangst 543, 649 Shuock V. Waggons 362 Shuber v. Winding 297 Shultz V. Pulver 581 Shurtleff v. Witherspoon 869 Shotwellv. Mott....238, 249, 250, 263 Sibley v. Peney 499 Sigourney v. Munn 203, 821 Sill V. McKnight 408 Simmonds v. Pallas 281, 292 Simmons V. Harwood 668 V. Rose.... 303, 304,305, 307 313 V. Ricaardson 199 V. Vallance 499 TABLE OF CASES. XXXIX PAGE. Simphill V. Haylcy 742 Simpson v. Simpson 692 Sims V. Liveley 314 V. Sims 305, 3(16,312, 314 Sinclair v. Jackson, 539, 640, 565, 570 761, 862 Sir John Leach in Atty v. Master of Prentwuoii School 263 Slade V. Van Vechten ...480, 554, 557 Sleight V. Read 666, 671 Slocoin V. Marshal 15 Small V. Mavwood 294, 296 Smart v. Prujean 273 Smith V. AllensoU 12 V. Aykwell 121 V. Bell 226 V. Bronley 130, 131 V. Smith V. Bruming...l21, 130 131 V.Calloway 715 V. Camelford 689 V. Campbell 727 V. Cawdnoy 747 V. Clay 152 V.Hubbard 85 V. Jackson 98 V.Keating 278 V. Kelley 185 V. Lampton 500 V. Lansing 555, 556 V. Long 666, 671 V. MeConnell 543 V. McCrary 492, 760 V. Mitchell 172 V. Kichards 170, 172 V. Shockelford 535, 299 V. Smith, 477, 533, 588, 594, 602 704 V. Sterry 83 V. Strahan 350, 476, 477 V. Tarlton 98 V. Thompson 801 V. AVarde 501 V. AVhoeler...294, 297, 299, 515 533, 519, 567 V.Wiseman 65 V. Wyeoff 301 Smilie v. Riffle 720 Smyth V. Oliver 475 Snelgrove V. Snelgrove 819, 199 Society v. Richards 232, 234 Soggins V. Heard 486 Sober V. Williams 706, 736 and W. V. St. Paul's Ch.... 414 Sollie V. Croft 716 Sorrel v. Carpenter 207 Sorsley v. HoUins 235 Soul V. Bonney 164 Southcote V. Watson 101, 103, 506 Sowersby v. Arden 500, 502 V. Lucy 766, 768 Spafford v. Weston 205 Spaldwing v. Shalmer 544 Speidler v. Weishlee 688 PAGE. Spencer v. Duren 171 V. Spencer.. 644. 549, 560, 652 579, 705, 707 Spong V. Spong 499 Sponker v. Van Alstyne 805 Spurway v. Glyn 314 Squibb V. Wyn 682 Squire v. Dean 689 V. Hardes 42, 479 Stackpole V. Beaumont 740, 742 Stacy V. Elph 299, 625, 527, 630 633, 535 Stampost V. Marshall 687 Stanger v. Nelson 231 Stanton V. Hall.... 667, 668, 679, 680 Stanwood v. Stanwood 679 Stapleton V. Stapleton 3o4 Starke v. Starke 715 Starkey v. Brooks 506 Starr v. Ellis 682 V. Starr 352 V. V.inderhyden 482, 737 State of M. v. Bank 294 State V. Guilford 538,550, 653 569, 571 V. Girard 238 V. Hearst 800 V. Holloway 172 V. McGown 238 V. Nichols 800 V. Stephens 234 Stater v. Wheeler 643 Steale v. Mialing 93 Steamer v. Palmer 789 Stearanson V. Moxwell 844 Steele V. Levisey 217,224, 7.31 V. Morley 733 V. Steele 669 Steers v. Steers 24, 477 Stephenson v. Heathcote 301 V. Lawney 738 Sterling v. Sterling 692 Stevens v. Bell 294 V.Gregg 3o5 V. Oliver 696 Stewart v. Brown 30 V. Chambers 312 V. House 840 V. Lispenard 155 V. Fetters 542 V. Redditt 159 V. Spencer 284 V. Mott 774 Stickney v. Borman 669 Stiffee V. Everett 680 Stiles V. Burch 144 St. John V. Benedict 479 V. St. John 692, 696 Stockton V. Ford 139, 482 Stone V. Massey 65 V. (7odfrey 716 V. Roulton 359, 361, 370 Story V. Lord Windsor 199 Stout V. Hart 500 xl TABLE OF CASES. PAGE. Striblehill V. Britt 124 Strathmore v. Bower 124 Strickland V. Aldridge 15, 125,197 Striinpler v. Roberts 29, 717 Strode V. Russell 827, 833 Strouly V. Strouly 791 Strong V. Grannis Ifi4 V. Gregory 668 V. Ingrum 315 V. Skinner 285, 286, 288 V. Stewart 192 V. Willis 527 Stroud V. Barnett 38 Stuart V. Kissam, l47, 308, 314, 499 653, 557, 660, 686 V. Stuart 688 V. Welder 672, 657 Stubbs V. Sargon 51, 54, 58, 507 Stump V. Cook 727 Sturgis V. Champney 666, 676 Styer v. Frias 766 Sutton v. Jones 556 Swallow V. Binps 319, 320 Swan V. Swan 92 V. Wall 93 Sweet V. Colgate 178 V. Southcott 200 Sweigart V. Rerk 766 Swift V. Duffield 498 Swink's Adm. v. Snodgrass 198 Swoiford v. Gray 143 Sydenham v. Tregonwell . . 59, 65, 496 Sylvester v. Jarman 828 T. TalHferro v. Talliferro 475 Taggart v. Taleott 689 Taintor V. Clark 750, 759 V. Ferguson 126 Tallitt V. Armstrong 691 Tallmage v. Sill 47 Tanner V. Livingston 804, 805 Tarrey v. Buck 170 Tatlock V. Jenkins 304, 313 Taverner V. Robinson 861 Taylor V. Baker 821 V. Benham 751 V. Clark 655 V. Fields Ill V. Galloway 299, 535, 764 V. Glanville 702 V. Haggarth 808 V. Hibbert 685 V. J ames 501 V. King 811 V. Lake 668 V. Lucas 68 V. Morris 75 , 786 V. Porter 655 V. Roberts 569 V. Stibbouts 197 PAGE. Taylor v, Tabrum 713 Taylor V. Taylor 132, 133 V. AVendel 302 Tay tor v. Tavtor 8, 804 Tebbitts v. Tilton 476 Tebbe V. Carpenter .... 581, 595, 615 707, 739 Tench V. Cheese 304,313 Terhune V. Colton 315 Territt V. Taylor 249, 337 Terry v. Brownson 679 V. Buffington 159 Tew V. Earl of Winterton 108 Thackwell v. Gardner 649 V. Hampson 726 Thrasher v. Ingrah 819 Wilder v. Keeler 112 Wiles V. Cooper 712 V. Gersham 681, 589 V. Wiles 665, 667 Wilkins V. Fry 769 V. Taylor 492 j^ Ferris 27, 29 AVinn v. Littleton PAGE. V. Forsyth 288, 291 V. Moran, 136, 137, 139, 481 482 V.Major 61, 223, 226 V. Pennock 389 V. Towle 360, 357, 377 V.Troup 36 V. Wilson....362,686, 692, 842 Wilt V. Franklin 294,297,512 Wild V. Jekyll 160 833 Wilks v.^Roggers ." ' " .' '. '. •" •* '• ' ' - ' "•' • 642 I Winslow v. 'Cumn.ing 240, 242 6B ="" I Winston V. Jones 758 Winters v. Anson °7 Steward".'.*.*.'.'.'*.'.' 592 j Winston v. Jones 758 Wilkinson v. Brayfield 182 v. Charlesworth ...679, 682 V. Marlin 668 V. Perrin 682 V. Perry, 356, 358, 366, 828 V. Wilkinson 655, 840 Willanv. Willan 771, 775 Williams v. Gushing 629, 799 V. Chitty 603 V. Conrad 611 V. Donaldson 662 T. First Presb. Church.. 146 716, 716, 789 V. Harden 700 V. Hollingworth 199, 819 V.Holmes 786 i V. Inness 684 V.Jones 100, 604 V. Kershaw 246 Williams v. Lucas 106 V. Matlocks 698, 700 V. Maul 669 V. Mosher 860 V. Nixson, 511, 541, 542, 562 666, 571, 572, 579, 580, 798 V. Powell 134, 593 V. Otty 720 V. Vantuyl 476 V.Woodward 762 V. Williams 218, 225, 236 240, 249, 260, 263, 266, 474 Williamson v. Berry 641, 642 V. Beekham 662 V. Diffenderffer 851 V. Geroe 149 Winteringham v. Lafoy 283 Wise V. Wise VJ iro Wiseman V. Beake 168,169 Wiston V. Murnan 666 Wiswell V. Stewart 565, 568, 613 Withers v. Hicksman 642, 644 V. Withers 31 V. Yadon, 209, 213, 215, 217 721, 728, 730, 731 Wood V. Abrey 163 V. Burnham 684 Cox, 46, 52, 222, 351, 355, 503 504 Wood V. Dillie 16 V. Downes....l34, 136, 138, 139 482 V. Dummer HI V. Huntingford 302 V. Jackson 500 V. McCann 128 V. Penoyre 635 V.Robinson 490 V. Sparks 756, 767, 759 V. Stone 377 V. Sullivan 621,632, 633 V.Vanderburgh 499, 707 V. White 764 V. Wood .. 8, 231, 636, 539, 615 774 V.Zimmerman 283 V. Branch Bank 198 I Woodburn v. Mosher. 285 V Gihon 121, 122 I Wooderman v. Baldock lU V. Williamson.... 687, 621 I AVoodman v. Good bl» 622, 631,632,635,636,637,658, 672 AVoodruff v. Cook lO" Willis V. Childs 274'^"—^— '-•■•■• V. Cowper 733 V. Hiscox 705, 711 V. Jernegan 168, 167 V. Savers 667 V. AViUis 24 Wills V. Kibble 841 AVilson V. Allen 862 V. Bennett 830 V. Cheshire 774 V. Dennison 668 AVoodson v. Perkins 662 AA'ooldridge v. Planters' Bank 720 V. AVatkinB 759 AVooley v. Sloper 698 AA'orcester v. Eaton 130 AVordcll V. Smith 117 AVorley v. Frampton 82.3 Wormlev v. AVormley 35, 143, 199 480, 481, 488, 593, 819 Worrall v. Jacob 696 v. Harford 580, 655 . Dent 17, 191, 353 AVorsley v. De Mattos. ....... .■• 198 — ' v. Earl Scarborough, 200, .^07 V. Edwards 619 xliv TABLE OF CASES. PAGE. Worth V. McAden ......;...■ 511, 529 Worthington v. Evans . . 567, 750, 763 Worthy v. Johnson 146, 702 Worten V. Bureh 621, 632, 633 Wray v. Steele 29, 30, 97 Wright V. Arnold 677 T. Atkyns, 40, 47, 50, 209, 214 224 V. Darue 480 V. Delafield 350 V. Douglas 271, 811 V. Linn 237, 238, 285 V. Miller 620, 629 V. Morley 93, 682 V. Proud 134, 136, 482 V. Trustees M. E. Church 77, 339 V. Wright 593 Wych V. Packington 25 Wyley v. Collins 650, 658 Wyman V. Hooper 134, 136 Wynne v. Hawkins.. 52, 118, 209, 226 Y. PAGE. Yale V. Dederer 651, 652, 655, 656 672, 686 Yarhorough v. West 501 Yardly v. Rand 688 Yates V. Compton 750 Yates V. Yates 258 York V. Brown 557 Young V. Combe 586, 593 V. Frier Ill V. Jones 688 V. Keighley Ill V. Miles 617 V. Peachy 37, 40, 500 Younger v. Welham 540 Youst V. Martin 25, 199, 200, 820 z. Zacharias v. Zacharias 715 .Zebach v. Smith 750, 757 Zeller's Lessees v. Eckert 715 Zimmerman v. Anders . • 240, 259, 339 T. Harman 146 INTRODUCTOHY. OF THE NATURE OF TRUSTS AND THE GENERAL PRINCIPLES APPLICABLE THERETO. A Trust, in its most enlarged sense, implies the equitable interest, right or title which one may have in property, real or personal, distinct from the legal ownership/ In contemplation of law, the legal owner has direct dominion over the pro- perty, while the beneficial interest therein belongs to another. The legal owner is denominated trustee. The beneficial owner, the cestui que trust or bene- ficiary. The legal estate in the hands of the trustee is made to subserve certain uses for the benefit of others, and these uses, etc., constitute the trust.^ To create a trust there must be four things : 1. A subject matter; 2. A person competent to create it ; 3. One capable of holding as trustee ; and, lastly, one for whose benefit the trust is held." The subject matter of a trust may be property of every description ; as well all choses in action, all > Story's Equity, sec. 964. « Hill on Trustees, 44; Story's Eq, sec. 1040 (b), 1055, 1057; Varick v. Edwards, 1 HofT. Ch., 382; Hinklc v. Wanzer, 17 How. U. S., 353; Vogle t. Hughes, 2 Sra. & Giff., 18. L OF THE NATURE OF TRUSTS- possibilities of trusts, contingent interests, expec- tancies, as that which can be legally transferred/ Any person may create a trust who is capable of making a valid disposition of property of any de- scription ; because in the act of disposing of his property he has the power of attaching such decla- rations, limitations and restrictions to the act of disposition, as will convey the legal estate to one, and the beneficial interest in part or the whole to another, causing him who holds the legal estate to become the trustee of the one to whom the benefi- cial interest is conveyed. But the trust will be valid only to the extent of the legal capacity of the one conveying it. But a trust implies a trustee ; for it is a well settled principle in equity, that a trust once pro- perly created shall never fail for want of a trustee. It is a rule in equity to which there is no excep- tion, that a court of equity never wants a trustee. Therefore if a trust has been properly created and no trustee has been appointed, or having been ap- pointed, is incompetent, or has refused to accept, or has died, the trust shall not fail on that account; but the court will pursue the property, and decree the person in whom the legal estate is vested to execute the trust, unless he be a bona fide purchaser for a valuable consideration without notice of the trust, or otherwise entitled to jDrotection.^ It is ^Hill on Trustees, 44; Story's Eq., sec. 1040 (6), 1055, 1057; Varick V. Edwards, 1 Hoff. Ch., 382; Hiakle u. Wanzer, 17 How. U.S., 353; Vogle V. Hughes, 2 Sm. k. Giff., 18. "Hill on Trustees, 48; Story's Eq., sec. 976; Mad. Ch. R., 365, 580; Piatt V. Vattier, 9 Peters' R., 405; 2 Fonb. Eq., 142, n. OF THE NATURE OF TRUSTS. 3 seldom that a trust is declared without the contem- poraneous appointment of a trustee. It sometimes happens, however, that the individual appointed will not or cannot serve. He may be incapacitated from holding the legal estate and consequently can- not serve as trustee. For as the trustee is to have dominion over the legal estate he must be an indi- vidual in whom the legal estate can vest.^ But a trust also implies a beneficiary, or a cestui que trust, some one for whose benefit the trust has been created. These objects of trust may be indi- viduals, or they may be those whose existence is not recognized at law. It is not necessary to the creation of a trust estate that the cestui que trust should be named or even be in being at the time.** In general, any person who is capable of taking an interest in property at law, may, to the extent of his legal capacity, and no further, become entitled to such trust in equity.^ A trust is now merely what a use was before the Statute of Uses. It is an interest resting in con- science and equity, and when declared legally, charges the conscience of the donee in trust, and Chancery applies the same rules thereto as formerly were applied to uses.^ Uses at common law might be created in two ways. 1. By the declared intent of the parties upon the transmutation of possession; and, 2. By " Sec post, Who may be a Trustee, div. II., chap. I. * Ashhiu-st V. Given, 5 W. &, S., 329; Trotter v. Blocker, G Porter, 209; Frazier v. Frazior, 2 Hill Ch.. 305. ^ Fisher v. Fields, 10 J. R., 50G; Johnsou v. Fleet, 1-1 Weiid., 180. 4 OF THE NATURE OF TRUSTS. an agreement upon an effectual consideration with- out transmutation of possession/ Uses which passed by transmutation of possession were raised by a feoffment, fine or recovery, or lease or re- lease. Those raised without the transmutation of possession, were raised either by bargain and sale enrolled in consideration of money, or by way of covenant to stand seised in consideration of blood .^ Formerly there has been much question whether at common law uses of lands would be raised by parol, or even by writing not under seal. In the case of Dean v. Dean, 6 Conn., 287, it was denied that trusts in land could be created by parol ; but in Flemming v. Donahoe, 5 Ohio, 250, the contrary doctrine was affirmed. Lord Chief Baron Gilbert in his treatise on uses, extracted a principle from those decisions which seemed conflicting, which looked very far toward harmonizing them. The principle is this : At common law a use might have been raised by words upon a conveyance thut passed the possession by some solemn act, as feoffment. But where there was no such act, there it seems a deed declaratory of the use was necessary : for as a feoff- ment might be made at common law by parol, so might the uses be declared by parol. But where a deed was necessary for passing the estate itself, it was also requisite for the declaration of the use :^ and as trusts succeeded to uses, therefore, in the * Story's Eq., sec. 973, 793, 987, 1040; Willard's Eq., 412; Gilbert on Uses, 75, 82; 2 Fonbl. Eq., B. 2, chap. 2, sec. 1, and notes. " Story's E(i., sec. 071. 'Gilbert on Uses, 270, 271. OF THE NATURE OF TRUSTS. absence of any statute upon that subject, it may be taken as the general law, that a valid trust either of real or personal estate may be created by parol declaration, wherever at law a deed is not requisite for passing the estate or property itself. But the common law method of creating trusts of realty by parol has been somewhat modified by the statute of 29 Car. 11.^ It is denominated the Statute of Frauds, &c. The seventh section of the third chapter of that act declares, "that all declarations or creations of trusts or confidences of any lands, tenements or hereditaments, shall be manifested and proved by some writing, signed by the party who is by law^ enabled to declare such trust, or by his last will in writing, or else shall be void." The eighth section of the same act exempts from the operation of the act trusts arising or resulting by implication or construction of law. Under the construction given to this act by the Judges it has been decided that a trust of land may still be effec- tually created by parol, and that the statute wall be satisfied if the existence of the trust is manifested and proved by written evidence.- There was also another statute denominated the Statute of Uses, of the 27 Henry VIII, ch. 10, which w^as passed to remedy certain mischiefs which ' Story's Eq., sec. 972; 2 Black. Coin., 337. ' Forster v. Hale, 3 Ves., 707; S. C. 5 Ves., 808 ; Randall v. Morgan, 12 Ves., 74; Church v. Sterling, 16 Conn., 388; Johnson v. Ronald, 4 Munif., 77; Moran v. Hays, 1 J. C. R., 339; Jackson v. Moor, G Cowan, 706; Fiagg v. Mann, 2 Sumner, 40G; Story's Eq., sec. 972; 4 Kent's Com., 305; Leman v. Whitley, 4 Russell, 423; Fisher v. Fields, 10 Johns. Rep.; 495. 6 OF THE NATURE OF TRUSTS. had arisen from a perversion of the system of uses. Says Lord Bacon in his Abridgment, under the title of Uses and Trusts, Part I, "by this course of putting lands into use, there were many incon- veniences ; as the practice which originated in a reasonable cause, was turned to deceive many of their just rights, as namely, the man that had cause to sue for his own land knew not against whom to bring his action, nor who was the owner of it; the wife was defrauded of her thirds ; the husband of being tenant by the curtesy ; the lord was defrauded of his wardship, relief, heriot and escheat ; the creditor of the extent of his debt ; the poor tenant of his lease, for the rights and duties were given by the law from him that was owner of the land, and none other, which was now the feoffee in trust, and so the old owner, which we call the feoffor, should take the profits and leave his power to dispose of the land at his discretion to the feoffee." Many efforts were made from time to time to remedy these difficulties by statutory enactments, when at length the statute of 27 Henry VIII was enacted, substan- tially as follows: " That when any person should be seised of lands, &c., to the use, confidence or trust of any other person or body politic, the person or corporation entitled to the use in fee simple, fee tail, for life or for years, or otherwise, should thence- forth stand or be seised or possessed of the lands, &c., of and in the like estate as they have in the use, trust or confidence ; and that the estate of the person so seised to uses shall be deemed to be in him or them that have the use, in such quality. OF THE NATURE OF TRUSTS. ' manner, form or condition as they had before in the use." Under the operation of this statute, many uses were thus transferred into possession, and be- came legal estates, and were thenceforth governed by the doctrines of the courts of law.^ It was not the design of this statute to defeat the equitable interest of the cestui que trust, but to change it into a legal estate; if, therefore, that cannot be done, the courts will still protect the inte- rest of the beneficiary, and treat the trust as still subsisting, unless the statute positively forbids it.^ Mr. Justice Willard in his Equity Jurisprudence, page 411, remarks, " that it was probably the object of this act to abolish uses altogether, but the con- struction put upon it by the Judges at an early day, in a manner defeated that intent. Thus, in the limitation of an estate to A and his heirs, to the use of B and his heirs, in trust for D, it was held that B's estate was executed, and that D took nothing.^ The statute was held to be satisfied by executing the first use. Courts of equity took hold of this construction, and said that the intention must be supported. It is plain that B was not intended to take. His conscience was affected. To this the reason of mankind assented, and it has stood on this footing ever since. Thus a statute made upon great consideration, introduced in a solemn and ' Fonb. Eq., B. 2, chap. 1, sec. 3; Willard's Eq., 411. ^ Vaudur Volgen v. Yates, 3 Barb. Ch., 243; Ref. Dutch Church v. Veeder, 4 Wend., 494, / 1 Mad. Ch., 567, 36 Henry VIII, Tyrell's case, Dy. 155, A; 2 Black. Com., 336, also see note 59; 4 Kent's Com., 302. 8 OF THE NATURE OF TRUSTS. pompous manner, by this construction has had no other effect than to add, at most, three words to a conveyance/ The second use in these cases, though void under the statute, was treated by courts of equity as a trust, and they enforced it as such.^ The remedy was in equity alone, and courts of law took no notice of it. This was the origin of trusts as they have been administered since the Statute of Uses." This statute was designed to operate upon real estate only. But in respect to realty, there are three methods by which direct trusts in lands are created, notwithstanding the statute. The first method has already been alluded to in the limitation of a use upon a use; the second, where a copyhold or leasehold estate is limited by deed or will to a person upon trust or use; and third, where the donee to uses has certain trusts or uses to perform which require that he should have the legal estate.^ Statutes substantially re-enacting these provisions of the 27 Henry VIII and 29 Car. II, are in exist- ence in many of the States, and will be thoroughly examined in another part of this work devoted to the consideration of that subject. In general, these statutes operate only upon simple or passive trusts in lands, and do not extend to those special trusts where some active duty is imposed upon the trustee ; ' 2 Black. Com., 336; Vaughn, 50; Atk., 591. » 1 Mad. Ch., 567, 36 Henry VIII, Tyrell's case, Dy. 155, A; 2 Black. Com., 336, also see note 59; 4 Kent's Com., 302. ' Bac. Us., 355; 2 Black. Com., 336; 1 Crnise's Dig., tit. 12, chap. 1, sec. 4-36; Vander Volgen v. Yates, 3 Barb. Ch., 243. OF THE NATURE OF TRUSTS- ^ neither do these statutes affect the power of dispos- ing of chattels personal/ In concluding this introductory chapter, attention is called to the distinction suggested by Lord Chief Baron Gilbert, between the raising or creating a use of lands originally by verbal declaration, and the admission of parol averments to prove or sustain it after it has been raised. This distinction must not be neglected in considering the principle how far uses affecting lands may be raised b y parol. ' story's Eq., sec. 972, 793, 987, 1040; 2 Fonbl. Eq., B. 2, chap. 2, sec. 4, and note x; Nab t>. Nab, 10 Mod., 404; Fordyce r. Willis, 2 Bro. Ch. R., 686; 2 Black. Com., 337. DIVISION I. OF THE SEVERAL KINDS OF TRUSTS/ CHAPTER L EXPRESS TRUSTS. Section I. EXPRESS TRUSTS IN WRITING. 1. Express trusts are created whenever the legal estate in property of any description is conveyed to one competent to take as trustee, to be held for the benefit of one capable of taking as cestui que tnist. Hence, any instrument in writing, making a legal disposition of property, which contains a direction or makes a declaration that the party holding the same, shall do it for the benefit of another, charges the conscience of the donee and compels the legal estate to subserve certain uses and benefits in favor of the beneficiary. Since the statute of 29 Car. II, chap. 3, sec. 7, which has been generally adopted in the United States, all creations or declarations of trusts of ^ Executory devises, contingent or springing uses, resulting uses, shift- ing uses, Stc, see 2 Black. Com., 33-1, 335. 12 EXPRESS TRUSTS IN WRITING- land, tenements or hereditaments, must be mani- fested and proved by some writing signed by the party entitled to declare such trusts, or by his last will in writing.^ It has been held, under the con- struction given to these statutes, that a trust affect- ing realty may be raised by parol notwithstanding the statute, provided the trust or confidence be manifested and proved by a writing sufficiently evin- cive of the trust, signed by the party entitled to declare it.^ Nor is it necessary that the declaration of the trust should be contained in the instrument conveying the legal estate to the trustee ; but it must be made in contemplation of it, or contempo- raneously with it. For after the legal estate has passed from the donor or grantor, and vested in the trustee, the former has no further power or control over the estate : consequently, no subsequent in- strument executed by him will operate to deprive the grantee of his right to the beneficial interest.^ The evidence by which the trust is proved may be subsequently manifested ; but it always relates back to the time of the creation of the trust, and treats all intermediate acts of disposition made by the cestui que trust between the creation and declaration of the trust, as valid. Thus, if there be a gift by will, no subsequent instrument executed by the ' story's Eq., sec. 972, also 793 (a). ' 2 Foiibl. Eq., B. 2, chap. 2, sec. 4, and note; Cook v. Broaking, 3 Vern., 10(5,107; Incliiquin r. French, 1 Cox, 1; Smith v. Attersoll, 1 Russ. 11., 266. ^ Hill on Trustees, 64; Adlington u. Cann, 3 Atk., 145, 151; Crabb c, Crabb, 1 M. & K., 511; Kilpin v. Kilpin, Id., 520, 532; Briggs v. Penny, 3 Macn. &. Goid,, 504. EXPRESS TRUSTS BY PAROL. 13 devisor will raise a trust, unless the instrument operate as a revocation of the will.^ Where an express trust is created hy a written instrument there seldom can arise any question, whether the person taking the estate takes the beneficial interest, or takes merely as trustee for others. Questions of trust often arise in the con- struction of wills and written instruments, inter vivos ; hut these questions are those of implied or constructive trusts, rather than of express ones, and will be considered in their appropriate place. Section II. EXPRESS TRUSTS BY PAROL. Originally uses, being of a secret nature, were created by parol agreement between the feoffor to uses and the cestui que use : or by parol declaration.^ There has been much dispute, however, upon the question, whether uses or trusts of realty could at common law be created by parol.^ But the weight of authority is, that where there is no statute to the contrary, trusts either of real or personal estate may be created by parol declaration. Especially is this the case where the estate in the property can be passed without deed. The rule laid down by Baron Gilbert in his " Treatise on Uses," is this : At common law a use may have been raised by word upon a conveyance that passed the possession by some solemn act, as feoffment. But where there »3 Atk.,152. « Sand. Us., 210. ^ ' Dean V. Dean, 6 Conn., 287; Flenming x. Donalioe, 5 Ohio, ^aO. 14 EXPRESS TRUSTS BY PAROL. was no such act, a deed declaratory of the use was necessary. In considering the question how far trusts of realty can be created by parol, or proved by parol declaration, it is important to distinguish between the act creating the trust and the kind of evi- dence by which the trust is to be manifested and proved.^ The Statute for the Prevention of Frauds (29 Car. II, chap. 3, sec. 7) did not prohibit the creation of trusts of realty by parol, but required that they should be " manifested and proved by some writing, signed by the party who is by law enabled to declare such trust, or by his last will in writing." And such is the construction which has been put upon it.'^ An examination of the cases will show that courts of equity are intent upon carrying out the legal and equitable intention of the donor, devisor or grantor, to uses and trusts, where that intention can be clearly ascertained, whether the trust affecting realty is raised by written or parol declaration ; and they will not be restrained in the execution of the trust any fur- ther than the positive prohibitions of the statute require. It is said that no evidence can be admitted for the purpose of engrafting a parol trust upon an in- strument which purports to be an absolute gift.^ ' Hill on Trustees, 56. » Foster v. Hale, 3 Ves., 707; S. C, 5 Ves., 308; Randall v. Morgan, 12 Ves., 74; Ilill on Trustees, 56, see note and authorities there quoted; Brown v. Lunt. 37 Maine, 434. ^ Irnhani r. Child, 1 Bro. C. C, 92; Bartlett v. Pickersgill, 1 Ed., 515; Leman v. Wliitlej-, 4 Russ., 423. EXPRESS TRUSTS BY PAROL. 15 But the objection is not to the creation of the trust by parol, but to the manner of proving it. There- fore if it can be legally made to ajDpear that the donee took in trust, equity will enforce it.^ So also, if the defendant admit a parol trust in his answer he may set up the Statute of Frauds as a defence ; but if he does not. do it by way of plea or answer, he will be deemed to have waived it, and the trust will be enforced.^ Thus also where it is attempted to convert a prima facie absolute gift into a trust by means of a verbal declaration, if the declaration be made contemporaneously with and in contemplation of the act of disposition, and there be legal evidence of it, the trust will be enforced.^ But in order to fasten a trust on property by means of parol declaration, the expressions used must amount to a clear and explicit declaration of the trust. Casual or indefinite expressions are in- sufficient for such a j^urpose,* and the expressions must point out with certainty both the subject matter of the trust and the person who is to take the beneficial interest.* The legal effect of a parol trust is the same as one created by a more formal assurance. Thus a trust * Cripps V. Joe, 4 Bro. C. C, 472; Podmore v. Gunning, 7 Sims., 644, 645; Muckleston v. Brown, 6 Ves., 52; Strickland v. Aldridge, 9 Ves., 516; Hill on Trustees, Gl, and authorities cited. * Flagg V. Mann, 2 Sumner, 528; Ontario Bank v. Root, 3 Paige, 478; Wood V. Dillie, 11 Ohio, 455; Hill on Trustees, 61, note 2, and authorities cited. ^ Leman v. Whitley, 4 Russ., 423, ^Harrison v. McMennomy, 2 Edw. Ch., 251; Slocum v. Marshall, 2 Wash. C. C, 398; Baylcy v. Boulcott, 4 Russ., 345; Bendbuw t'. Town- shend, 1 M. & K., 506; Kilpin v. Kilpin, 1 M. &, K., 520. 16 EXPRESS TRUSTS BY PAROL. once created by parol, cannot subsequentlj be extin- guished or in any manner changed by the party creating it/ Where a freeman of London purchased real estate in the name of another person, without any trust being expressed at the time, (consequently the decla- ration of trust was not found in the deed,) the free- man having devised the estate, died. Subsequent to his death, the trustee declared that he held the estate in trust for the freeman. This declaration was held good, so as to entitle the devisee in oppo- sition to the widow, who claimed the estate by the custom of London.^ But it must be observed that the declaration made by the trustee after the death of the freeman, did not create the trust, but only furnished evidence of its existence from the time the legal estate was thus conveyed to the trustee. A lease was granted absolutely to a person who afterwards became a bankrupt. Subsequent to his bankruptcy, he made a declaration that the lease w^as granted to him as a trustee for another person. It was held that the assignees of the bankrupt were not entitled to the lease.^ Here, also, the declara- tion of the trust by the trustee only declared that which had been created at the time the lease was granted. Upon the same principle, a copyholder made an absolute surrender to A, and died. After his death, A admitted that the surrender was made ■ Kilpin V. Kilpin 1 M. &. K., 531, 539; Kirkpatrick v. McDonald, 11 Penn., 387. * Ambrose r. Ambrose, 1 P. Wms., 322. =* Gardner v. Rowe, 2 S. & St., 346; S. C. 5 Ross, 258. EXPRESS TRUSTS BY PAROL. 17 to him in trust for the surrenderor, and after his death, for the purpose of his will. The devisees under the copyholder's will, and not his customary heirs, were held to be entitled.^ As the seventh section of the statute of 29 Car. II applies only to " lands, tenements and heredita- ments," therefore the law affecting chattels personal remains unaltered, and valid trusts of such property can be created and proved by parol. There is another class of trusts, in the nature of express trusts, which may be created and proved by what is equivalent to parol declaration. Any ex- pression signifying the intention that the donee of property is not to have the beneficial interest therein, Avill be binding on the conscience of the trustee, and will vest in him only the legal estate.*^ This class of trusts is created by certain fiduciary expressions, which equity considers sufficiently evin- cive of the trust, although the donee is not expressly directed to hold the property to certain uses, or in trust. Cases of this kind have usually arisen on the construction of gifts by will ; sometimes, how- ever, they arise in the construction of executory and informal instruments not of a testamentary nature, but the principles of construction are the same in either case.^ In the interpretation of the language of wills, courts of equity have gone great lengths by creating implied or constructive trusts > Wilson V. Dent, 3 Sim., 385. " Morice v. Bishop of D., 10 Ves., 537. ^ Countess of Lincoln v. U. of Newcastle, 12 Ves., 227; Blackburn v. Stables, 2 V. &. B., 309; Jervois v. D. of Northumberland, 1 J. &, W., 574 2 18 EXPRESS TRUSTS BY PAROL. from words of recommendation, precatory words, etc. Where the language of the testator clearly imports that the devisee is to hold for the benefit of another, and that other is clearly and unmistak- ably indicated, it will not matter what form of expression may be used to designate that intent. Thus, if a testator should, by his will, desire his executor to give to a particular person a certain sum of money, this would be construed into a legacy, although the will should leave to the option of the executor, how, when and in what manner it should be paid.^ So, if a testator should desire his wife, at or before her death, to give certain personal estate among such of his relations as she should think most deserving and approve of, it Avould be held to be a legacy among such relations.^ Sa where a gift in a will is expressed to be ''for the benefit''' of others f or to be at the disposal of the donee " for " herself and children,'* or ''towards'' her support and her family? In these and all similar cases, where the inten- tion of the donor is unequivocally indicated to be that the donee shall take for the benefit of an- other, equity will declare the trust and see that it is faithfully executed. But in all cases of this kind, ' Story's Eq., sec. 1068; Brest v. Offley, 1 Cli. Rep., 246. ^ Story's Eq., sec. 1068; Harding ij. Glynn, 1 Atk ,469; Malvin r. Kings- Icy. 2 Ves. Jr., 333; Brown v. Higgs, 8 Ves., 570, 571. ^ Jubber v. Jiibber, 9 Sim., 503; Raikes v. Ward, 1 Hare, 445. •■ Woods V. Woods, 1 M. & Cr., 401; Crocket v. Crocket, 1 Hare, 451. Where the words "desire," '' request,'' "entreat," " confidence," " hoping," " recommending," will be sufficiently imperative to create a trust, see learned note to Lawless v. Sliaw. Lloyd & Goold, 154 ; 4 Kent's Com., 305, note (a). EXPRESS TRUSTS BY PAROL. 19 the fiduciary words must be imperative on the donee, and not give him discretionary power to do or not to do the thing indicated or desired ; for if it is left to the discretion of the donee to apply or not to apply the gift, no trust will be created.^ Trusts of this character will be considered more fully under the title of Implied Trusts. They have been noticed here for the purpose of calling atten- tion to the principle upon which they are declared to be trusts by courts of equity. He who has the legal and beneficial estate of property has the abso- lute dominion thereof, subject to the legal authority of the State. Therefore, in the disposition of his property, his will is absolute, and courts of equity, whenever they can ascertain that will, will see that it is complied with. Hence, any form of expres- sion which clearly implies the creation of a trust estate, as the object or intent of the donor or gran- tor, will be sufiicient to raise the trust. And the trust, though implied from the evidence, is in reality an express trust, and will be treated as such by the court. That is, implied trusts are con- sidered as really the expression of the will of the donor or grantor, as those which are denominated Express Trusts ; the difference is only in the form of language by which the trust is expressed. They derive their authority from the will of the donor, grantor, &c., as gathered from his actions or ex- pressions. ' Morice v. Bishop of Durham, 10 Ves., 536; Ommany v. Butcher, T. 8c R., 270; Gibbs v. Rurasey, 2 V. & B., 297; Ball v. Vardy, 1 Vcs. Jr., 270; Thorp V. Owen, 2 Hare, 607; Heneage v. Lord Audover, 10 Price, 230. 20 PRESUMPTIVE TRUSTS. CHAPTER II. IMPLIED TRUSTS. Section I. RESULTING OR PRESUMPTIVE TRUSTS. Implied trusts may be raised upon the supposed intention of the parties, as expressed by their lan- guage, conduct, or in the nature of the transaction. In all such cases the trust is presumed to be in ac- cordance with the will of the donor, grantor or testator, and results as a just interpretation of the language, conduct and relation of the parties. Hence these trusts are called Resulting or Pre- sumptive Ttusts.^ There is another class of implied trusts which arises independently of any such intention, and is forced upon the conscience of the trustee by an equitable construction, or by the operation of law, as in cases of meditated fraud, imposition, notice of an adverse equity, and other cases of a similar nature. This class may be denominated Constructive Trusts." Lord Nottingham^ classifies trusts, and states the general principles that regulate them, thus, " All are either Express Trusts, which are raised and ' Hill on Trustees, 91; 4 Kent's Com., 305. =■ Story's Eq., sec. 1105; 4 Kent's Com., 305. ^ Cook V. Fountain, 3 Swanst. R., 585. PRESUMPTIVE TRUSTS. 21 created by the act of the parties : or Implied Trusts which are raised and created by the act or con- struction of law. Again, express trusts are de- clared either by word or writing, and these decla- rations appear either by direct and manifest proof, or violent and necessary presumption. These last are commonly called Presumptive Trusts ; and that is, when the court upon consideration of all cir- cumstances, presumes there was a declaration either by word or writing, though the plain and direct proof thereof be not extant. In the present case there is no pretence of any proof that there was a trust declared, either byword or in writing; so the trust, if there be any, must either be implied by law or presumed by the court. There is one good, general and infallible rule that goes to both these kinds of trusts. It is such a general rule as never deceives ; a general rule to which there is no exception; and that is this, the law never implies and the court never presumes a trust, but in case of absolute necessity. The reason of the rule is sacred ; for if the Chancery do once take liberty to construe a trust by implication of law, or to pre- sume a trust, unnecessarily, a way is open to the Lord Chancellor to construe or presume any man in England out of his estate." Mr. Justice Story, in his Equity Jurisprudence, sec. 1195, thinks that this statement of the rule by Lord Nottingham is a little too strong. He thinks this to be a more correct exposition of the general rule, "A trust is never presumed or implied as intended by the parties unless, taking all the 22 RESULTING TRUSTS. circumstances together, that is the fair and reasona- ble interpretation of their acts and transactions." 1. Implied trusts may be raised upon the sup- posed intention of the parties, as expressed by their language, conduct, or in the nature of the transac- tion. Judge Lomax, in his copious and valuable Digest of the Laws respecting Real Property in the United States, considers the doctrine of implied trusts, in reference to the following cases, extracted from the numberless varieties of trusts. 1. Implied trusts arising out of the equitable con- version of land into money or money into land. 2. Where an estate is purchased in the name of one person, and the consideration is paid by another. 3. Where a conveyance is made "of land without any consideration oi? declaration of the use. 4. Where a conveyance is made of land in trust declared as to a part, and the conveyance is silent as to the residue. 6. Where a conveyance of land is made upon such trust as shall be appointed, and there is a default of appointment. 6. Where an estate is conveyed on particular trusts which fail of taking effect. 7. Where a purchase is made by a trustee with trust money .^ 8. Where a purchase of real estate is made by partners with partnership funds.^ ' See 4 Kent's Com., 307, note (c), for authorities. ' Phillips V. Crammond, 2 Wash. Cir. Rep., 441. RESULTING TRUSTS. 23 9. Where a renewal of release is obtained by a trustee or other person standing in some confiden- tial relation/ 10. Where purchases are made of outstanding claims upon an estate by trustees, or some of the tenants thereof, connected by privity of estate with others having an interest therein. 11. Where fraud has been committed in obtain- ing a conveyance, 12. Where a purchase has been made of land without a satisfaction of purchase money to the vendor. 13. Where a joint purchase has been made by several, and payments of the purchase money to the vendor have been made by some beyond their proportion.^ The Statute of Frauds (29 Car. II, chap. 3, sees. 7 & 8), which is generally the adopted law of this, country, requires that trusts of lands, tenements and hereditaments shall be manifested and proved by some writing, signed by the party creating the trust. Under this statute it is held to be sufficient if the terms of the trust can be duly ascertained by the writing of the party. A letter acknowledging . the trust will be sufficient to establish the existence of it. A trust of realty, therefore, need not be created by writing, but it mvist be evidenced by writing.^ But resulting trusts are expressly exempted from ' Holrklge v. Gillespie, 2 Johns. Ch. R., 30; Davoue v. Fanning, lb., 252. " Lomax Dig., vol. I., 200; 4 Kent's Com,, 306, note 1; Id., 308. ^ 4 Kent's Com., 305. 24 UNEXHAUSTED RESIDUUM. the operation of the statute ; and there can be no question, that the facts and circumstances tending to establish the resulting trust may be proved by parol. Thus, where an estate is purchased in the name of A. and the consideration money is actually paid at the time by B., there is a resulting trust in favor of B., and the facts may be established, or the resulting trust may be rebutted by parol proof.^ In the case of Boyd v. McLean it was held, after an ex- amination of the cases, that a resulting trust might be established by parol proof, not only against the face of the deed itself, but in opposition to the answer of the nominal purchaser, denying the trust ; and even after the death of such purchaser.^ 1. UNEXHAUSTED RESIDUUM. Resulting trusts arise where there are certain trusts created either by will or deed, which, when fully executed, leave an unexhausted residuum. Gen- erally in such cases a resulting trust arises to the party creating the trust.^ This is not universally the case however. The intention of the grantor must be ascertained from the circumstances; and if it appear that he intended to part with the bene- ficial interest in the property absolutely, then such resulting trust may not arise. Thus where a father made a deed to his son, upon certain trusts for him- » 4 Kent's Com., 306; Willis u. Willis, 2 Atk. Rep., 71; Bartlett ». Pick- ersgill, 1 Eden R., 515; Boyd v. McLean, 1 Johns. Ch. R., 582; Bottsford V. Burr, 2 Johns. Ch. R., 405; Steere v. Steere, 5 Johns. Ch. R., 1. * See Art. No. 5 of Law Magazine No. 7. ^ Story's Eq., sec. 1196, and note (1), also 1199, and authorities (3). UNEXHAUSTED RESIDUUM. 25 self, his wife, and her children by him, after his decease, and no trust was declared of the surplus, it was held that there was no resulting trust to the father ; and that the son took the surplus.* Lord Langdale remarked in the case of Cook v. Hutchin- son, (ut supra,) that in general, where an estate or fund is given in trust for a particular purpose, the remainder, after that purpose is satisfied, will result to the grantor or heir of the grantor.^ But that resulting trust may be rebutted even by parol evi- dence, and certainly cannot take effect where a con- trary intention is to be collected from the whole instrument as indicated by the grantor. Lord Hardwich says,^ " Whether there is or is not, a re- sulting trust must depend upon the intention of the grantor.' If any particular reasons occur why the grantor, or testator should intend a beneficial inte- rest to the trustee, or] devisee, there are no prece- dents to warrant the court to say that it shall not be a beneficial interest. Let us consider what were the intentions of the grantor in this deed. The father being upwards of eighty years of age executes a deed, which recites that he was desirous of set- tling the property to which he was entitled therein described, in such a manner as to make a provision * Cook V. Hutchinson, 1 Keen, 42, 50. "Hobert v. Countess of Suffolk, 2 Vcrn., 644; Sherravd t?. Lord Har- borough, Ambl., 165; Wych v. Packington, 3 B. P. C, 44; Hill on Trus- tees, 119, and authorities cited. See exceptions to this rule, Hill on Trus- tees, 120. = Hill V. Bishop of London, 1 Atk., 619. King v. Denison, 1 V. & B., 260, points out distinction applicable to these cases. Fowler v. Garlike, 1 Russ. &Mylne, 232. 26 UNEXHAUSTED RESIDUUM. for himself during his life, and for his wife and children after his death, and for such other pur- poses as were therein after expressed. He proceeds to make a release and assignment of the property to his son, " upon the trusts therein after declared concerning the same," and when he comes to de- clare the trusts he does not exhaust the whole of his property. I am of the opinion that this is im- material ; for considering the relation between the parties and the object and purport of the instru- ment, I have come to the conclusion that the father intended to part with all beneficial interest in the property, and that he meant his son to have the benefit of that part of the property of which the trusts are not expressly declared.^ The principle in all these cases is, that the inten- tion of the grantor, devisor, etc., shall prevail. It is the intent which guides the use, and where a party has expressly declared a particular estate of the use, the presumption is, that if he had intended to part with the residue he would have declared that in- tention also.^ But where the grantee has paid a consideration which is named in the deed, although it be purely nominal, and no uses are declared, there will be no resulting trust to the grantor; because the payment, even of a nominal considera- tion, shows an intent, that the grantee should have some use; and no other being specified, he must take the whole use. But where a particular use is declared, there the residue of the use results * Story's Eq., sec. 1199, and authorities (3). UNEXHAUSTED RESIDUUM. 27 to the grantor, for the presumption that he in- tended to part with the whole use is thereby repelled/ Of the same nature are those implied or resulting trusts which sometimes arise from the assignments of debtors for the benefit of their creditors. And these assignments may be for the purpose of pay- ing debts generally, or for the payment of some particular debt. In the case of the United States V. Hoyt,^ where a debtor made an assignment of his property in trust, to pay any judgment which the United States might recover against him and the sureties on his official bond as a collector of cus- toms ; and after the recovery of such judgment the plaintiffs in it filed a bill for an account by the trus- tees, and the application of the trust funds to the payment of the judgment ; it was held that a trust in favor of the plaintiffs was created by the assign- ment by implication of law. But resulting trusts which arise out of assign- ments in favor of creditors, are usually those which arise for the benefit of the assignor himself, as, where after fulfilling the express trust, a surplus remains in the hands of the assignee.^ Consistently with the principles involved in re- sulting trusts there may be cases apparently con- tradicting the last stated principle. In the case of Hill V. Bishop of London {ut supra) the whole ' Story's Eq., sec. 1199, and authorities (3). " 1 Blatchford's C. C, 332. ^ Story's Eq,, sec. 1196; Burrill on Assignments, 250; Wilkes v. Ferris, 6 Johns. 335; Dubois v, Dubois, 7 Alabama, 236. 28 ESTATE PURCHASED BY ONE, estate was given to the son, and certain trusts were declared, which did not exhaust the estate. But from a consideration of the relation of the parties, that is, "« good consideration,'^ " c consideration of blood,'' the court felt justified in declaring that the beneficial interest in the residuum passed to the trustee, because it was evident that the fiither in- tended to part with the entire estate. If then, for a "irood consideration," a trust in the residuum may be raised for the benefit of the trustee, there can be no valid reason why the like trust may not be raised where a *' valuable consideration" is substi- tuted for a ''good one.'" But where there is neither a "g(Jod" or a valuable consideration, and a trust is declared only as to a part of the estate, there can be no question that the beneficial interest in the residuum will result to the grantor. The mere want of a valuable consideration will not of itself, and without any auxiliary circumstances, create a resulting trust, and convert a grantee into a trus- tee, because that would destroy the effect of every voluntary conveyance. There must be the absence of both a consideration and a declaration of the use.^ 2. ESTATE PURCHASED BY ONE, CONSIDERATION PAID BY ANOTHER. A resulting trust arises wherever an estate is purchased in the name of one person and the con- ' Hill on Trustees, 122; Pratt i'. Slackden, 14 Ves., 193. ' Saunders ou Uses, 227; 4 Kent's Com., 306. CONSIDERATION PAID BY ANOTHER. 29 sideration is paid by or comes from another/ This trust is presumed from the nature of the transaction, from the apparent equity of the case. The one paying the consideration is considered, in the ab- sence of any declaration or circumstances to the contrary, as entitled to the beneficial interest ; and consequently the grantee becomes trustee for such interest. This trust being presumed, any circum- stances or declarations which evince a different intention of the parties will tend to rebut the pre- sumption. Implied trusts arising under this head are in strict analogy with the common law doctrine, that where a feoffment is made without consideration the use results to the feoffor." Upon the same principle, if only a part of the purchase money be paid by a third party a resulting trust in his favor pro tanto will arise f or where there is a joint pur- chase, and one pays the consideration, a trust results for his benefit ."^ Sir E. Sugden in his work on vendors and purchasers has taken a distinction in cases where two or more persons contract for the purchase of an estate, w^iich is conveyed to both, but the money is paid by one only. In that > 4 Kent's Cora., 306; Hill on Trustees, 91; Willis v. Willis, 2 Atk., 71; Lloyd V. Spillet, 2 Atk., 150; Rider v. Kidder, 10 Ves., 360; Strimpfler r. Roberts, 18 Peiin. St. R.. 283; Hill on Trustees, 91, and authorities cited, note (1). ' Dyer v. Dyer, 2 Cox, 92; 2 Sugd. V. &. P.. 134, 9th ed; 2 Mad. Ch. Pr., 140. M Kent's Com., 306. *Ryal V. Ryal, 1 Atk. Rep., 59; Arab., 413; Bartlet v. Pickersgill, 1 Eden, 515; Lane v. Dighton, Arab , 409; Wray v. Steel, 2 Ves. 8t Beam, 388; Story, J., 3 Mason Rep., 364; 4 Kent's Cora., 306. 30 ESTATE PURCHASED BY ONE, case, says the learned writer, the one who paid the money cannot call upon those who paid no part of it, to repay him their shares of the purchase money or to convey their shares of the estate to him; nor can it be construed into a resulting trust, as such a trust cannot arise at an after period ;^ perhaps the only remedy is by bill for contribution. The basis of the distinction is in the rule that "Me intc7it guides the use ;'^ and as the estate was purchased by both, and the conveyance was made to both, the presumed intent to raise a trust is rebutted. It is otherwise, however, where the consideration proceeds from two or more persons jointly and the conveyance of the legal estate is taken in the name of one of them only. Upon the same princi- ple, a resulting trust will arise in favor of parties in proportion to the amounts of the consideration tliey have respectively contributed, although their names do not appear in the conveyance.- This doctrine applies to purchases only. There- fore, where a person in actual possession of pro- perty makes a gift of it, or transfers the possession to another, as a general rule no presumptive or resulting trust will arise. This will be considered hereafter.^ ' 2 Siigd. V. & P., 931, 9th ed.; see also Brooks v. Fowle, 14 N. H., 248; Cook i'. Bronaugh, 8 Engl. Ark., 183. ' Wray v. Steel, 2 V. & B., 388; 2 Sugd. V. & P., 140, 9th ed; Riddle r. Emerson, 1 Vern., 108; Palmer v. Young, IjVern., 276; Butslbrd ». Burr, 2 J. C. R., 405; Quackenbush v. Leonard, 9 Paige Ch.,334; Stewart V. Brown, 2 S. & R., 461; Bernard v. Bougard, Harr. Ch., 130; Hill on Trustees, 92, 3d Am. ed., note (1), authorities. » Jefferys v. Jefferys, Cr. & Ph., 138. CONSIDERATION PAID BT ANOTHER. 31 To constitute a resulting trust in real estate it is necessary that the consideration money upon the purchase should have belonged to the cestui que trust, or that it should have been advanced by some other person as a loan to him, or that it should have been advanced as a gift to him, or for his benefit. It is a creature of equity, and must arise, if at all, at the time the conveyance is made. It cannot arise after the legal estate has passed to the grantee.^ Parol proof of the payment of the money notwithstanding the denial in the trustee's answer, is admissible.^ The rule, that a resulting trust arises where an estate is purchased in the name of one and the con- sideration is paid by another, also applies to copy- holds, as well as to other property.^ The rule that a trust arises for the benefit of him from whom the consideration proceeds in the purchase of property, is a mere presumption, in the absence of other proof, and does not apply to the case where a per- son takes a conveyance in trust and pays the consi- deration himself. Here the presumption is rebutted by the taking the estate in trust ;^ for a presumptive trust cannot arise where there is an express one. In the State of New York it is provided by sta- tute ^ that when a grant for a valuable consideration * Rogers v. Miirry, 3 Paige, 300; Butsfoid v. Burr, 1 J. Ch. R., 405; Willard Ch. Jurisp., 600. " Sec Hill on Trustees, 95 (148), note 1. ' Withers v. Withers, Anibl., 151. * Dennison v. Gocliring, 7 Barr's Rep., 175. * Rev. St. 1859, vol. III., p. 15, sec. 51, 52, 53; 5 Barb., 51; 2 Barb. Ch., 582; 12 Barb., 653; 8 Paige, 222; 1 Smith, 475; 16 Barb., 376. 32 ESTATE PL'UCHASED BV FUNDS shall be made to one person and the consideration therefor shall he paid hy another, no use or trust shall result in favor of the person by whom such payment shall Ije made ; but the title shall vest in the person named as alienee in such conve^'ance, except as against the creditors, at the time, of the person paying the consideration ; and that a trust shall result in favor of such creditors to the extent necessary to satisfy their just demands/ But the statute provides that when the alienee has taken the conveyance in his own name without the con- gent or knowledge of the person paying the consi- deration, or in violation of some trust, the provi- sions above named shall not apply .^ Provisions similar to these are made by statute in Michigan ^ and Wisconsin/ 3. ESTATE PDECUASED BY FUNDS OR PROPERTY HELD IN A FIDUCIARY CAPACITY. In accordance with the spirit of the foregoing rule, a resulting trust arises where a purchase is made by one in his own name, but with funds wliich are in his hands in a fiduciary capacity. Thus, where a trustee purchases an estate with trust moneys, or w^here a partner purchases with » 12 Barb., 653; Johng. Cas., 153; 3 Johns. R., 216; 11 Id., 91; 14 Id., 4G3; IG Id., 197; 1 Johns. Ch. Rep., 582; 2 Id., 405; 3 Paige, 487; 4 Id., 678; 18 AVend., 258; 4 Denio, 439; 3 Barb., 555; 10 Paige, 567; 1 Smith, 475. » 17 Barb.. 103; 16 Id., 376; 11 Id., 399. * Eev. St. 1846, chap. 63, sec. 4. * Rev. St. 1858, chap. 84, sec. 7, 8, 9. HELD IN A FIDUCIARY CAPACITY. 33 partnership funds/ or where an agent, employed to purchase, buys for himself,' or the trustees of a corporation buy land with corporate funds, and take the conveyance in their own name,^^ or an executor purchases with the avails of the testator's estate,* or a committee invest funds of a lunatic in land,^ or a guardian invests the funds of his ward,^ or where the husband buys land with his wife's separate property, or with savings out of her sepa- rate estate.' In all cases where trust moneys have been misemployed, or moneys placed in the hands of others in a fiduciary capacity, have been in- vested in property without the consent of the bene- ficiary, a trust results, unless the cestui que trust elects to take the money instead thereof. The right to follow trust moneys will continue so long as the identity of the funds can be established. The identity does not consist in specie, that is, in the particular pieces of coin, but in the fund itself.^ But the right of pursuit will fail, where the means of ascertainment fails ; as, when the trust property is converted into money and has passed away ; or > Pl.illips V. Cramond, 2 W. C. C. R., 441; Kirkpatrick v. McDonald, 1 Jones (Penn.) 393; Baldwin v. Johnson, Saxton, 441; Smith v. Ramsey, 1 Gilm., 373; Pugh v. Cunie, 5 Alb., 446; Edgar v. Donnelly, 2 Munif., 387; Martin v. Greer, 1 Geo. Doc, 109; Freeman f. Kelley, 1 Hoflf. Ch.,90. =" Church V. Sterling, IG Conn., 388. 3 Methodist Ch. v. Wood, 5 llamm., 283. * Garrett v. Garrett, 1 Strobh. Eq , 9G; Seaman v. Cook, 14 lUin., 501. ' Reid V. Fitch, 11 Barb. S. C, 399. * Cuplinger v. Stokes, Meigs, 175. ' Methodist Ch. v. Jaques, 1 J. C. R., 450, also see Hill on Trustees, 92, page and authorities. " U. S. V. Inhabitants of Waterborough, Davies, 154; Goepp's Appeal. 15 Penn. St., 428, 3 34 ESTATE PURCHASED BY FUNDS has passed into a mass of property of the same de- scription, and cannot be separated.' But if a trustee mingle trust funds with his own private funds, in the purchase of land, a resulting trust Avill arise : for according to the usual rule on the subject of con- fusion, it is his duty to establish how much of his money went to the purchase, or the ceatui que trust will take the whole." Where there is no fiduciary relation, the mere use ot another's money, as where one sells another's property wrongfully, and invests the proceeds in lands, raises no resulting trust.^ The principle up- on which a trust arises as the result of investing funds held in a fiduciary capacity, is in accordance with the equitable maxim, that a person assuming a fiduciary relation toward another in regard to pro- perty, is bound to exercise, for the benefit of the cestui que trust, all the rights, powers, knowledge and advantage of every description, which he de- rives from that position, or acquires by means of it:' and also is in accordance with another principle in equity ; that no person can be permitted to pur- chase an interest in property, where he has a duty to perform, which is inconsistent with the charac- ter of a purchaser.^ The principle is well set forth by the judge in the case of Michoud v. Girod, 4 ' Thompson's Appeal, 22 Penn. St., 16. * Seaman v. Couk, 14 Illin., 505; Russell v. Jackson, 10 Hare, 209. * Ensley v. Ballantine; 4 Humph., 235; Cumpbel v. Drake, 4 Ired. Eq., 94: Contra, Bank of Am. v. Pollock, 4 Edw. Ch., 215. * Torry v. Bank of Orleans, 9 Paige, 663; Ilawiey v. Cramer, 4 Cowen, 736; Van Epps v. Van Epps, 9 Paige, 237, 241; Willard's Eq., 605, and note 1, and authorities. HELD IN A FIDUCIARY CAPACITY. ^O Howard, S. C, 503. " The general rule," said the judge, " stands upon the great moral obligation to refrain from placing ourselves in relations which ordinarily excite a conflict between self-interest and integrity. It restrains all agents, public and pri- vate ; but the value of the prohibition is most felt, and its application more frequent, in the private re- lations in which the vendor and purchaser may stand toward each other. The disability to pur- chase is a consequence of that relation between them which imposes on the one a duty to protect the interests of the other, from the faithful dis- charge of which duty, his own personal interests may withdraw him. In this conflict of interest the law wisely interferes. It acts upon the possibility that, in some cases the sense of that duty may pre- vail over the motives to self-interest; but it provides against the probability in many cases, and the dan- ger in all cases, that the dictates of self-interest will exercise a predominant influence and supersede those of duty. It therefore prohibits a part}^ from purchasing on his own account^ that which his duty or trust requires him to sell on the account of another ; and from purchasing, on the account of another, that which he sells on his own account. In effect, he is not allowed to unite the two opposite charac- ters of buyer and seller, because his interests, when he is a buyer or seller on his own account, are di- rectly conflicting with those of the person on whose account he buys or sells." ^ » Wormley v. Wormley,. 8 Wheat., 421 ; Prevost v. Gratz, 6 Wheat., 481 ; Will. Eq.,60G. X j^e^RBMl^. 3G A VOLUNTAUY CONVEYANCE Although it is against sound policy to permit trustees and those standing in a like relation to be- come purchasers of trust })ro})erty, without the leave of the court, or the consent of those interested therein, yet their purchases are not void absolutely. The end is attained by making them voidable. In equity the cestui que trust has the option either to confirm the purchase, and hold the trustee to it; or he may have the sale set aside. But no one except the cestui que trust, or some one standing in his rela- tion, can apply for relief.' This right to avoid the sale cannot be enforced against a bona fide purchaser for a valuable consideration without notice — Jack- son V. Walsh vt supra. This only applies to con- tracts that are executed. If the bargain be not completed and the aid of the court be invoked in behalf of the agent or trustee to compel a specific performance of the agreement, and the cestuis que trust be parties, and object to a confirmation of the sale, a court of equity will not decree a performance. " 4. A VOLUNTARY CONVEYANCE AVITIIOUT A DECLARATION OF TRUST. Where the legal estate in lands is conveyed to a stranger without any consideration, it is denomina- ted a voluntary conveyance, from which, it was ' Jackson v. Van Dolfson, 5 J. R., 43, 48; Jackson r. Walsh, 14 J. R.. 407; AYilson v. Troup, 2 Cowen, 195; Hawley v. Cramer, 4 Cowen, 719; Davou r. Fanning, 2 J. Ch. R., 252, ct seq.; Jennison v. Hapgood, 7 Pick.. 1. ' Mnnroe v. Allaire, 2 Cain. Cas. in Er., 182; Davou v. Fanning, 2 J. Ch. R., 252, 268. WITHOUT A DECLARATION OF TRUST. 37 formerly held, that a trust resulted to the original owner, in conformity with the old doctrine, that where a feoffment was made without consideration a use resulted to the feoffor/ This is stating the doctrine too strongly. For it has been the settled doctrine of the courts, that a voluntary conveyance of real or personal estate, if duly executed and acted upon, will be valid and binding upon the original owner, and subsequent volunteers, claiming under him." The title of a volunteer is never favored in a court of equity ; and proper evidence will always be ad- mitted to establish a trust against him, by showing that it was the intention of the parties that he should take as trustee for the grantor, and not for his own benefit. As against creditors, and bona fide purchasers without notice, the want of a good and meritorious consideration to a conveyance, is deemed evidence of fraud ; ^ but as between the parties and their personal representatives, it is valid.^ As a general rule, equity will not recognize the title of a volunteer unless it be completely executed ; and therefore, if the grant be not formally and legally executed, or if, from its loss or destruction, or for any other reason, it becomes necessary for a volun- teer to have recourse to equity to put him in pos- ' 1 Cruise's Dig., tit. 12, chap. 2, sec. 52. ' Young V. Peacliy, 2 Atk., 250; Clavering v. Clavcring, 2 Vcrn., 473; Bougliton V. Boughton, 1 Atk., 265; Cook v. Fountain, 3 Sw., 690; see authority, Ilill, 100. ^ Willard's Eq., 227. * Jackson i'. Garnscy, IG J. R., 189; Jackson v. Caldwell, 1 Cowcn, 622. 38 A VOLUNTARY CONVEYANCE session of the estate, the court will not interfere ; * for it is a settled principle that a valuable conside- ration is requisite to put a court in motion.' A voluntary conveyance does not always imply that the instrument is without some consideration. In equity, the statement of a mere nominal consid- eration would not be allowed to aftect the construc- tion or operation of a deed. And a good or meri- torious consideration will have its influence in determining whether a resulting trust will arise to the grantor, or whether it shall be considered a voluntary conveyance.^ Where there is a voluntary conveyance, and there is no direct admission or declaration of the trust, the court will look into all the circumstances arising from the nature of the transaction ; it will consider the conduct and relation of the parties, that their intention may be ascertained. If the deed is made ex parte, and not communicated to the donee,' or if the grantor continue in possession of the property and exercise acts of ownership over it;^ if the grantee recognize the grantor as the owner," or acquiesce for a long period in being de- prived of the benefits conferred on him by the » Cook r. Fountain, 3 Sw., 591, 593; Cecil v. Butcher, 2 J. &. W., 565. * Ilolloway ». lIe'TLY DECLARED. ^5 Says Judge Story, in his Equity Jurisprudence, sec. 1060, " the doctrine of thus construing expres- sions of recommendation, confidence, hope, wish and desire, into positive and peremptory commands, is not a little difficult to be maintained, upon sound principles of interpretation of the actual intention of the testator. It can scarcely be presumed that every testator should not clearly understand the difference between such expressions and words of positive direction and command ; and that in using the one and omitting the other he should not have a positive end in view. It will be agreed on all sides, that where the intention of the testator is to leave the whole subject, as a pure matter of discre- tion, to the good will and pleasure of the party enjoying his confidence and favor, and where his expressions of desire are intended as mere moral suggestions to excite and aid that discretion, but not absolutely to control or govern it, there the language cannot, and ought not, to be held to create a trust. Now, words of recommendation and other words precatory in their nature, imply that very discretion, as contradistinguished from peremptory orders, and therefore ought to be so construed, un- less a diflerent sense is irresistibly forced upon them by the context.'" Accordingly, in more mo- dern times, a strong disposition has been indicated not to extend this doctrine of recommendatory trusts, but as fur as the authorities will allow to give to the words of wills their natural and ordinary sense, ' Meredith v. Heneage, 1 Sim. R., 542. 4G PROPERTY CONVEYED IN TRUST, unless it is clear that they are designed to be used in a peremptory sense."' Says the Vice Chancellor in the case of Sale v. Moor, ut supra, " the first case that construed words of recommendation into a command, made a will for the testator, for every one knows the distinction between them." The current of decisions of late years has been against converting the legatee, in such cases, into a trustee.'* In note (') to sec. 1009 of Story's Equity (from whicli the above authorities are taken) it is re- marked, " that a strong case, illustrative of the doctrine now maintained, is that of ex parte Payne (2 Younge & Coll., G4G). *' There the testator de- vised his estate to his daughter, as some reward for her ailectionate, unwearied and unexampled atten- tion to him during his illness of many years," and then added, " I strongly recommend to her to exe- cute a settlement of the said estate, and thereby vest the same in trustees, &c., for the use and bene- fit of herself for life, with remainder to her husband and his assigns for life, with remainder to all and every the children she may happen to have, if more than one, share and share alike ; and if but one, the whole to such one ; or to such other uses as my said daughter shall think proper; to the intent, that the said estate, in the event of her marriage, shall be eflectually protected and secured:" and ' Sale V. Moor, 1 Sim., 534; Wright v. Atkyns, 1 V. &. Boam., 315. ^Meredith r. Heneage, 1 Sim. R., 542; ^Yr\ght v. Atkyns, ut supra; Lechmere v. Lavie, 2 Mylne & Keen, 197; Lawless v. Sliaw. 1 Lloyd & Gould K., 154; Benson v. Whitman, 5 Sim. R. 22; Podmore v. Gunning, 7 Sim. 11., G44; Wood v. Cox, 1 Keen R., 317. INSUFFICIENTLY DECLARED. 47 Lord Chief Baron Abino;er held that the daughter took an absolute estate/ Judge Story "^ sums up thus, *' wherever, there- fore, the objects of the supposed recommendatory trusts are not certain or definite ; wherever the property to which it is to attach is not certain or definite ; wherever a clear discretion and choice to act, or not to act, is given ; wherever the prior dis- positions of the property import absolute and un- controllable ownership ; in such cases courts of equity will not create a trust from words of this character.^ In the nature of things, there is a wide distinction between a power and a trust. In the former, the party may or may not, act in his discre- tion ; in the latter the trust will be executed, not- withstanding his omission to act.'* Lord Eldon said,^ " that in order to determine whe- ther a trust of this sort is a trust which a court of equity will interfere with, it is a matter of observa- tion : first, that the words should be imjDerative ; secondly, that the subject must be certain; and thirdly, that the object must be as certain as the subject." In Pope V. Pope^ the testator gave whatever property or effects he might die possessed of, (after his debts were paid,) or might become entitled to, to his wife ; and appointed her sole executrix of his ■ * Ford V. Fowler, 3 Beavan R., 146, 147; Knight v. Knight, 3 Boavan K., 148 to 172; Tallmagc v. Sill, 21 Barb., 34. » Story's Eq., sec. 1070. * See authorities cited, Story's Eq., sec. 1070, note 1. * Wright V. Atkyns, 1 Turn. & Russ., 157. 'lOSim.R.,1. 48 PROPERTY CONVEYKI) IN TRUST, Avill, and added : "And my reason for so doing is the constant abuse of tru.stees which I daily witness among men ; at the same time, trusting she will, from the love she bears to me and our dear children, go husband and take care of what property there may be, for their good ; and should she marry again, then I wish she may convey to trustees, in the most secure manner possible, what property she may then possess, for the benefit of the children, as they may severally need or deserve, taking jiustice and affec- tion for her guide." At the conclusion of his will he gave the capital of his business to his wife, trust- ing that she would deal justly and properly to and by all his children. It wiis held that no trust was created for the children. In the case of Knight r. Knight,* Lord Langdale said, " but it is not every wish or expectation which a te.'itator ma}' express, nor every act which he may wiijh his successors to do, that can or ought to be executed, or enforced as trusts in this court ; and in the infinite variety of expressions which are em- ploj'cd, and of cases which thereupon arise, there is often the greatest difficulty in determining whether the act desired or recommended is an act whicli the testator intended to be executed as a trust, or which this court ought to deem fit to be, or capable of being enforced as such. In the construction and execution of wills, it is undoubtedly the duty of this court to give effect to the intention of the testator, whenever it can be ascertained. But in cases of this nature, * 3 Beavan E., 148, 172 to 175; see note to sec. 1070, Story's Eq. INSUFFICIENTLY DECLARED. 49 and in the examination of authorities which are to be consulted in relation to them, it is, unfortunately, necessary to make some distinction between the intention of the testator, and that which the court has deemed it to be its duty to perform. For of late years, it has frequently been admitted by judges of great eminence, that by interfering in such cases, the court has, sometimes, rather made a will for the testator than executed the testator's will according to his intentions: and the observation shows the necessity of being extremely cautious in admitting any, the least, extension of the princij^le to be ex- tracted from a long series of authorities, in respect of which such admissions have been made. As a general rule it has been laid down, that, when pro- perty has been given absolutely to any person, and the same person is, by the giver, who has power to command, recommended or entreated or Avished to dispose of that property in favor of another, the recommendation, entreaty or wish shall be held to create a trust : first, if the words are so used that, upon the \vhole, they ought to be construed as im- perative ; secondly, if the subject of the recom- mendation or wish be certain ; and thirdly, if the objects or persons intended to have the benefit of the recommendation or wish, be also certain. In simple cases there is no difficulty in the application of the rule thus stated. If a testator gives a thou- sand pounds to A. B., desiring, wishing, recommend- ing, or hoping that A. B. will, at his death, give the same sum or any part of it to C. D., it is considered that C. D. is an object of the testator's bounty, and 4 50 PROPERTY CONVEVED IN TRUST, A. B. is a trustee for him. No question arises upon the intention of the testator, upon tlie sum or sub- ject intended to be given, or upon the person or object of tlie Avish. So if the testator gives the residue of his estate, after certain purposes are answered, to A. B., recommending A. B., after his death, to give to his own rehations, or such of his own relations as he shall think most deserving, or as he shall choose, it has been considered that the resi- due of the property, although a subject to be ascer- tained, and that the relations to be selected, although persons or objects to be ascertained, are nevertheless so clearly and certainly ascertainable, so capable of being made certain, that the rule is applicable to such cases. On the other hand, if the giver accompanies his expression of wish, or request, by other words, from which it is to be collected that he did not in- tend the wish to be imperative ; or if it appears from the context that the first taker was intended to have a discretionary power to withdraw any part of the subject from the object of the wish or request; or if the objects are not such as may be ascertained with sufficient certainty, it has been held that no trust is created. Thus the words " free and unfet- tered," accompanying the strongest expressions of request, were held to prevent the words of request being imperative. Any words by which it is ex- pressed or from which it may be implied that the first taker may apply any part of the subject to his own use, are held to prevent the subject of the gift from being considered certain ; and a vague descrip- tion of the object, that is, a description by which rxSUFFIClENTLT DECLARED. 51 the giver neither clearly defines the object himself, nor names a distinct class out of which the first taker is to select, or which leaves it doubtful what interest the object or class of objects is to take, will prevent the objects from being certain within the rule. And in such cases we are told ( 2 Ves., jr., 632, 633,) that the question never turns upon the grammatical import of the words, they may be im- perative, but not necessarily so ; the subject matter, the situation of the parties, and the probable intent must be considered.^ Where the objects of a trust are too indefinite to afford any certainty, there courts of equity will not execute the trust, but the property wdll fall into the residuu7n of the testator's estate, as it is clear that the legatee or devisee is not to take for his own use.^ But in the description of objects or persons in re- commendatory trusts, it is not indisjDcnsable that the persons should be described by name, in order to sufiicient certainty. If the context, when duly considered, fixes the particular persons clearly and definitely by referring to the distinct class out of which the trustee is to select, as, to the " sons," "children," "family" and "relations," the descrip- tion will be deemed to be a sufiicient designation.^ Wherever the subject to be administered as trust property, and the quantum of the subject are left so ' See also 10 Ves., 536; Knight v. Boughton, 11 Clark & Finnel R., 548. » Stubbs V. Sargon, 2 Keen R., 255; S. C. 3 Mylne & Craig, 507; Om- many v. Butcher, 1 Turn. 8t Russ., 260; Ford v. Fowler, 3 Beavan R., 146, 147; Story's Eq., sec. 979 (a), 1071, 1183, 1068 (a), note 1. ^ Pierson v. Garnet, 2 Bro. Ch. R., 38; Forbs v. Ball, 3 Meriv, R., 437; 1 Powel on Devises, by Jarman, 274, and note 7; Story's Eq., sec. 1071. t>2 PROPERTY CONVEYKD IN TRUST, indefinite, that it would be impossible for the court to say what should be applied, the difficulty which would thus be imposed upon the court, has been the foundation of the argument, that no trust was in- tended.' Thus, where a testator bequeathed to his wife all the residue of his jjersonal estate, "not doubting but that she will dispose of what shall be left at her death, to our two grand-children : " It was held that the uncertainty of the subject to which the bequest should attach, defeated it, as a recommendatory trust. This wt)uld leave the sub- ject at the option of the devisee, so far as quantum was concerned, which is always fiital to the trust.'^ So, where the testator bequeathed to his wife all the residue of his estate, " recommending to her, and not doubting, as she has no relations of her own family, but that she will consider my near relations, should she survive me, as I should consider them myself, in case I should survive her." Here, the uncertainty both of the subject and of the ol)jects of the trust was so great, that the court could not execute it, and consequently it was held that the words did not create a trust.' As to what cases the court will establish a result- ing trust where there is an imjJerfect declaration of the foregoing description, in opposition to the claims ^ Wright V. AUiyns, 1 Turn. &. Ru!S., 159. » Wynne i<. Hawkins, 1 Bro. Ch. R., 179; Pushman v. Filliter, 3 Ves. 7; Eadc V. Eade, 5 Mad. R., 118; Curtis v. Sippon, 5 Mad. R., 494; Story's Eq.,sec. 1073, note 3. ' Sale V. Moore, 1 Sira. R., 534; Att'y Gen. v. Hall, cited 2 Cox R.,355; see Podmore v. Gunning, 7 Sim. R, 614; Wood v. Cox, 1 Keen R., 317; Story's Eq-, 1073, and authorities, note 1. INSUFFICIENTLY DECLARED. ^'^ of the donee, there can be no other rules laid down than the foregoing. If the intention of the donor is clearly and imperatively expressed, if the subject of the trust is clearly defined, and the objects cer- tainly designated, the court will decree the trust ; but these questions must be decided upon the con- struction of the language in each particular case.^ In the case of Sale v. Moore ^ the Vice- Chancellor said, " the first case which construed words of re- commendation into a command, made a will for the testator; for every one knows the distinction be- tween them. The current of decisions of late years has been against converting a legatee into a trustee." Illustrative of this class of cases are the following : In the case of Morice v.. Bishop of Durham, the testatrix had bequeathed all her personal estate to the Bishop, his executors &c., upon trust, to pay her debts and legacies, &c., and to dispose of the ulti- mate residue " to such objects of benevolence and liberality as the Bishop in his own discretion should most approve of," and she appointed him her sole executor. In this case, the Master of the Rolls held, that it was clear, from the words of the Avill, that this was a gift upon some trust, and not for the personal benefit of the Bishop ; but that the trust was too indefinite for the court to execute even as a gift to charity, and that there was therefore a result- in "• trust to the next /)f kin : and this decision of the Master was affirmed by Lord Eldon.^ 1 Ellis r. Shelby, IM. & K., 298. M Sim. E.,534. MIoriccv. Bishop of Durham, 9 Ves., 399, on appeal, 10 Ves.. 522; Owens V. The Missionary Society of the M. E. Church. 4 Kern., 380. 54 TROPEUTY CONVEYED IN TRUST, In James v. Allen/ the testatrix had bequeathed all her personal estate to three persons Avhom she appointed her executors, in trust to be by them ap- plied and disposed of for and to such benevolent purposes as they in their integrity and discretion may unanimously agree on. The Master of the Rolls decided that this was a trust in the executors ; but that it was void for uncertainty, and therefore distributable among the Jicxt of kin. In Vezey v. Janson," the testator gave the residue of his estate to his executor upon trust in default of appointment by him, " to pay and apply the same in and toward such charitable or public purposes, as the laws of the land would admit of, or to any person or persons, and in such shares &c., as his executors should, in their discretion, will and pleasure, think fit." Sir John Leach, Vice-Chancellor, decided that the trust was too general and undefined to be executed by the court ; that the executors could not take, be- cause the gift was expressly made to them in trust : and the next of kin were therefore entitled.^ In each of the foregoing cases it is most apparent that the intentions of the testator or testatrix were not caried out by the action of the court. Although a trust was created by the language of the instru- ments, either as to a part or the whole of the pro- perty given, yet from the language, taken together '3 Mer., 17. »1 S. &S.,69. ' Sec likewise Fowler v. Garlic, 1 R. &. M., 232; also Ellis v. Shelby, 7 Sim., 352; S. C. on appeal, 1 M. & Cr., 286} also Stubbs v. Sargon, 2 Keen, 255; S. C. on appeal, 3 M. & Cr., 507. IXSUFFICIEXTLY DECLARED. 55 as a whole, it is most apparent that special confidence was reposed in the executors named; a confidence in their capacity, their judgment and fidelity to ad- minister the property in a manner more satisfactory to the testator than would be any specific direction which the testator was then able to give. Although it was apparent that the testator did not intend the executor or executors to take beneficially, it was equally apparent likewise, that he preferred leaving the disposition of his property to the judgment, dis- cretion and fidelity of his executor, rather than to his heir or next of kin : and the court would have better performed its duty in the premises by leaving it where the testator placed it. Such decisions should hardly be received as autho- rity, when they appear to be in violation of the very principles they profess to observe in making them. "It is the intention which guides the use,'* says the court, therefore carry out as far as possible, the lawful intention of the donor. If the testator did not declare the subjects or objects of the trust with a sufficient degree of particularity, it was be- cause, at the time, he could not be sufficiently informed to specify such particulars ; and therefore he did what he could, by selecting those in whose judgment and integrity he had confidence, and com- mitted his property to their keeping, to be disposed of at their discretion : signifying to them his general wish in the instrument appointing them to their office. Therefore it is well remarked by Judge Story,^ » Story's Eq., sec. 1069. oh PROPERTY CONVEYED IN TRUST, "that, where the intention of the testator is to leave the whole subject, as a pure matter of discretion, to the Jackson v. Kelley, 2 Ves. Jr., 285; Brown r. Higgs, 4 Ves., 708; Cam- bridge V. Rons, 8 Ves., 12; Leak v. Robinson, 2 Merc.,3G3; Bland v. Bland, 2 J. &. W., 406; Jones v. Mitcliell, 1 S. & S., 298; King v. Wood- hull, 3 Edw. Ch., 79; Marsh r. AVheeler, 2 Edw. Ch., 156; Woolmei's Estate, 3 Whart., 479; Johnson r. Johnson, 3 Ired. Eq., 427; Taylor v. Lucas, 4 Hawks, 215. WHICH FAIL OF TAKING EFFECT. 69 sonal property, and there being no other disposition of it indicated by the testator, the failing disposi- tion will go to the next of kin, rather than to the heir at law.^ In the case of Finley v. Hunter ^ it was held that a residuary bequest on condition to apply it for illegal purposes, created a resulting trust for the next of kin." If an estate be devised, charged generally with legacies, and it is uncertain what part of the de- vised estate will be required for satisfying them, and any of those legacies fail, there will be no re- sulting trust to the heir at law ; but the devisee shall have the benefit of the failure.^ It might be otherwise if the legacies were made an exclusive charge upon the real estate, or were so charged that they could be excepted out, or separated from that given to the devisee.^ Lord Eldon attempted to state the result of the various decisions upon this point. lie declared the •result to be, " That if the estate is given to the de- visees in such a way that a charge is to be created by the act of another person, raising the question between that person and the devisees, the heir has no claim ; but if the devisor himself has created the charge, and to the extent of that charge, the intention appears on the face of the will not to give the estate to the devisees, it will, to the extent of ' Skrymsher v. Northcote, 1 Sw., 5G6; McDonald v. Bryce, 2 Keen, 276; Eyre V. Marsdcn, 2 Keen, 564; Floydd v. Barker, 1 Paige Eq. R., 480; Frazier v. Frazier, 2 Leigh, 642; Jolinson v. Clarlison, 3 Ricii. Eq., 305. Strob. Eq., 218; see also Johnson v. Clarkson, 3 Rich. Eq., 305. Kennel v. Abbott. 4 Ves., 811; 2 Jarm. Fow. Dev., 44, 90. 2 70 CONVEYED ON PARTICULAR TRUSTS that charge, the particular object failing, go to the heir.^ The rule of Lord Eldon seems to embrace no more than this : that when the evidence is that the testator intended the devisees to have the estate thus charged, or intended the estate to be converted, if necessary, into means for paying these legacies, and intended the whole to go to the devisees, that manifest intention of the testator would exclude any claim of the heir. But if it appeared upon the face of the will that the devisor did not intend to give the estate to the devisees, but only to make their legacies a charge ui)on the estate, in that case, the object filling, there would arise a resulting interest to the heir at law. The authorities do not seem to make a distinction between those cases where the charge upon the estate is void ah initio, or where it fails by lapse. It has been supposed that the decision in the case of Noel V. Lord Henley, m the House of Lords,- was founded on a distinction of this nature. There may be a good and sufficient reason for making such a distinction. Where gifts are properly charged upon an estate, in equity, a conversion takes place upon the death of the testator, and the real, for all such purposes, becomes personal estate. If the proposed gift be void ah initio, no such conversion can take place ; for equity converts that only which is intended to be done, and which ought to be done ; Sidney v. Shelly, 19 Yes., 363, 1 Dan., 211, 322. TnilCII FAIL OF TAKING EFFECT. "71 and a gift for illegal purposes never ought to be executed ; and equity can make no conversion in its favor. The case of Hutchinson v. Hammond^ was con- sidered as decisive of the law applicable to lapsed legacies, when they were to be paid out of moneys raised by the sale of real estate, etc. In this case A. had devised certain lands to trustees to sell, and invest the money produced by the sale, in the funds, in trust for H. for his life, and, after his decease, to pay certain sums of money, including jel,000 to G. P., then in trust, to pay all the residue of said prin- cipal money and interest to B. C; and she gave the residue of her personal estate to H. G. P. died dur- ing the life time of the testatrix. Mr. Justice Buller, sitting for Lord Thurlow, held, after much argument, that the lapsed sum did not fall into the particular or general residuum but went to the heir at law. He said there was no apparent intention against the heir. This decision was affirmed by Lord Thurlow," his lordship observing that " the tes- tatrix having said nothing as to the jel,000 the heir was not defeated. The merely directing an appro- priation of a part, would not defeat the claim of the heir, as to that part which was not disposed of." This case was followed by others, holding to the same doctrine, until the case of Noel v. Lord Henley^ was made much to the surprise of the jDrofession. ' 3 Bio. C. C, 128. ■■' 3 Bro. C. C 148; Collins v. Wakeman, 2 Ves. Jr.,G83; Gibbs v. Rum- sey, 2 V. & B., 294; Jones v. Mitchel, 1 S. & S., 294. M Dun., 211, 322; 7 Pri., 240. 72 CONVEYED ON PARTICULAR TRUSTS A careful examination of the two classes of cases will do much to reconcile the apparent conflict. In the case of Hutchinson v. Hammond, Mr. Justice Bullor held that the lapsed sum did not fall into the particular or general residuum, and, because he dis- covered no " apparent intention against the heir," he concluded that it went to the heir at law. His reasoning upon the facts of the case might have been thus : " The intention of the testatrix must govern so far as that is legal, and can be ascertained. She ordered certain lands to be sold, and the proceeds to be invested in certain funds, for specific purposes. By the will she kept the funds separate from the personal estate, and therefore she did not intend to treat them as personal estate. The jel,000 Avas of the real estate, and had lapsed before the death of the testatrix ; therefore there was no constructive conversion of the real estate at the time of the death of the testatrix, so far as concerned the <£l,000; and for these reasons the lapsed disposition must go to the heir at law, against whom he could find no ' apparent intention ' in the will." And Lord Thur- low gives, substantially, the same reasons for affirm- ing the decision, to wit : the apparent intention of the testatrix. The case of Noel v. Lord Henley^ was substan- tially as folloAVS : Lord Wentworth devised certain estates to trustees to sell, and out of the produce to pay, amongst other sums, the sum of .£5,000 to his wife, and after those purposes he directed the trus- 'Dan., 211,322. WHICH FAIL OF TAKING EFFECT. 73 tees to invest the residue upon certain trusts. His wife afterwards died, in the lifetime of the testator. One of the questions was, whether the ^65,000 de- volved upon the heir at law, the next of kin, or whether it belonged to the persons entitled to the residue. Richards, C. B., held that by the lapse the residuary legatees were entitled. The case went to the House of Lords on api^eal, and was there affirmed. Lord Redesdale said: " If any property is given by a will in the nature of a legacy to a person in being at the time of making the will, but who dies before the testator, that legacy of course becomes lapsed, and no longer payable. That is a contingency to which every person who makes a will must be deemed to know that such a disposition is subject ; and, although it is contended on the part of the heirs at law, that this £d,QOO, arising out of the sale of the real estate should be applied to their benefit as so much real estate undisposed of by the will, I conceive that such is not a true construction of the will; because, having given je5,000as a legacy, which in its nature must be subject to that species of contingency, that contingency is one which he must be supposed to have looked to for the benefit of those persons to whom he gave the residue of the money arising from the sale of the estate ; and therefore it seems to me, the decree is perfectly right in the manner in which it has disposed of that question," &c. The facts in this case were such as to satisfy the court that the testator intended to convert his real estate into money for certain purposes ; and after 74 CONVEYED ON PARTICULAR TRUSTS fulfilling those purposes, that the residue should go, in trust, for certain purposes. The estate taking this direction, the heir at law would be excluded ; and, hence, here is evidence that the testator intended to exclude the heir. That the contin- gency, the death of the wife during the lifetime of the testator, was an incident to such disposition, of which the testator must be presumed to have know- ledf>'e, and therefore to have contemplated, when he made residuary legatees. The residuary legatees were to have the residuum as money, and not as real estate; the j£5,000 was money and not real estate in the contemplation of the testator ; there- fore it should go to the residuary legatees in accord- ance with the manifest intention of the testator. Each of the foregoing class of decisions are based upon the supposed intention of the testator, as o-athered from the language of the will ; and from each of those decisions may be gathered this prin- ciple : that if it clearly appear from the will that the testator intended to convert the realty into per- sonalty, for lawful purposes, and to make a valid disposition of that personalty, the heir will be ex- cluded. That if there be residuary legatees to whom all the estate is to go after satisfying those legitimate purposes designated by the testator, the next of kin will be excluded. If the residuary legacies fail in the whole or in part, then the estate will go to the heir, or next of kin, according to the nature of the estate. In the case of Jackson v. Hurlock, the testator had devised lands to B. and her heirs, charged with WHICH FAIL OF TAKING EFFECT. '^^ the payment of any sum, not exceeding ^10,000, to such persons as he by any writing should appoint. The testator by writing charged on the estate mer alia sums amounting to about ^6,000, to charitable uses. This being void, the question was to whom the ^G,000 should go. Owing to the illegal charac- ter of the disposition, there could be no constructive conversion, hence, it could not go to the next of km. It was the apparent intention from the will to con- fer the estate beneficially upon B. and her heirs, thus charged; hence the heir was excluded m the mind of the testator. Then it only remained to sink into the estate for the benefit of B., and so the court held.^ Where the estate is devised, charged with legacies which fail, either from being void or from lapse, it appears that the testator designed to .ive to the devisee the beneficial interest of the estate thus charged, the failing disposition will sink into the estate for the benefit of the specific devisee, and will not go to the residuary .'' 8. RESULTING TRUSTS ARISING FROM THE EQUITABLE CON- VERSION OF PROPERTY. By an equitable conversion of property is meant an implied or constructive change of property from real to personal, or from personal to real, so that each is considered transferable, transmissible and descend- » Anibl 487; S. C, 2 Ed., 263; see also Barrington v. Hereford, 1 Bro. C. C, 01, n; S. C. 3 Dow., 212, and 4 Ves., 811; Baker v. Hall, 12 Ves., 497. « Barrino-ton v. Hereford and Baker v. Hall, ut supra. 76 RESULTING TRUSTS ARISING FROM ible, according to its new character, as it arises out of the contracts or otlicr acts and intentions of the parties. This doctrine of equitable conversion is a mere consequence of tlie common doctrine of courts of equity, that where things which are lawful and proper to be done, and are agreed to be done, they are to be treated for many purposes, as though tliey were actually done/ AYhere a contract is made for the sale of real estate, the vendor, in equity, becomes immediately, a trustee for the vendee, of the real estate, and the vendee becomes a trustee of the vendor of the pur- chase money. Therefore, there is an implied or constructive change of the realty into personalty, and of the personalty into the realty ; so that the vendee is treated as the owner of the land ; and the money due or to become due, is treated as the personal estate of the vendor, and in equity each are treated according to the new character given. Thus, the purchaser may devise it as land, even before the legal conveyance is made, and it passes by descent to his heir,^ and the vendor stands seised of it for the benefit of the purchaser and the trust attaches to the land, so that the heir of the purchaser may insist upon a specific performance of the contract.^ As a general rule. Courts of Equity will not inter- * Story's Eq., sec. 1212, and authorities cited in note 1; also see Story's Eq., sec. 792; Fletcher v. Ashburner, 1 Bro. C. C, 499; Whelcdale v. Partridge, 5 Ves., 396. ' Story's Eq., sec. 790, 1212; Seton v. Slade, 7 Ves., 264, 274; Craig v. Leslie, 3 Wheat. R., 577; Beverly v. Peter, 10 Peters R., 532; see Story's Eq., sec. 1212, note 3, and authorities. ' Seaman v. Van Rensselaer, 10 Barb., 86; Story's Eq., sec. 790. EQUITABLE CONVERSION OF PROPERTY. 77 fere to cliange the quality of the jDroperty left by the testator, vendor, etc., unless there is some clear act, or manifest intention of the testator or vendor, by which the character of money or land is unequivo- cally fixed upon the property throughout. For the court knows no equity between the heir and next of kin; and therefore makes no constructive con- version in favor of either. Therefore to establish a conversion, the will or the instrument must direct it absolutely, out and out for all purposes, irrespective of all discretion of others, or contin- gencies.^ This doctrine of equitable conversion applies to cases where the ultimate destination of the property is to be reached through several gradations. Thus where land is directed to be sold, and the proceeds arising therefrom, to be invested in lands, it will be regarded as real estate, though neither conversion has been actually effected.- But if the first conver- sion is out and out, and the second is qualified or con- tingent, the property will be impressed with the character which the first conversion stamps upon it. Thus, where land was conveyed to trustees to be sold, and the produce thereof, with the consent of certain persons, was to be laid out in the purchase of land or government securities, the first conversion stamped upon it the character of personalty.^ 1 Wright V. Trustees Method. Ep. Ch., 1 Hoff., 203; Clay v. Hart, 7 Dana, 11; Evans v. Kmgsbury, 2 Rand., 120; 1 Jarm. Wills, Perkins' notes, 473, and authorities cited, note 1. * Sperling v. Toll, 1 Ves. Sr., 70; Pearson v. Lane, 17 Ves., 101. ^ Van V. Barnet, 19 Ves,, 102. 78 RESULTING TRUSTS ARISINT, FRO^f Property taken under a ivill ov settlement directing its conversion, must be taken in the character wliich such instrument has impressed upon it, and in its subsequent management and disposition it will be governed hy rules applicable to property of such a character; for it is a plain dictate of justice and good sense, that the condition of the property should not be afl'ected prejudicially, to those beneficially interested, by the acts of those through whose instru- mentality the conversion is to be effected, and in whom no such discretion is reposed.* But where the instrument directs the land to be sold, and the proceeds arising therefrom to be in- vested in real estate within a reasonable time, or as soon as a profitable investment can be made, and that in the meantime the money shall be placed at interest on good security, the temporary arrange- ment does not prevent the money retaining the character of real estate, because it does not disprove that such was the intention of the testator.' If the direction in the will is not imperative, requiring the executor or trustee absolutely to con- vert the property, or ultimately to cause it to be converted, it does not show such an intention on the part of the testator as will convert the property. Therefore, where the instrument contains a mere power to sell or purchase, it does not change the nature of the property ; yet the mere circumstance, that the language of the clause respecting the sale * See Jarra. on Wills, 474, note and authorities cited by Perkins; 2 Keb., 841; 2 Vern., 20, 55, 58; 1 Vern., 345. &c. ' See Edwards v. Countess of Warwick, 2 P. Wm., 171. EQUITABLE CONVERSION OF PROPERTY. 79 or purchase is framed as though it were a power, will not prevent a constructive conversion if the context of the will show that it is intended to be imperative, or in the nature of a trust/ In these, as in other cases, the lawful intention of the testator, so far as it can be ascertained, gov- erns ; and the presumption is that the testator does not intend the nature of the property to depend upon the option of the person through whom the conversion is to be effected. But if it appears from the will to have been the testator's intention to give to such person an absolute discretion, no constructive conversion will take place : and as between the heir and personal representatives of those beneficially entitled, the property will devolve according to its actual character.- Thus, a testatrix devised the residue of her real and personal estate to W., his heirs, executors and administrators, according to the different qualities thereof, upon trust, to retain and keep the same in the state it should be in at the time of her decease, as long as he should think proper, or to sell or dispose of the whole or such part thereof as, and when, he or they should, from time to time, think expedient, and then, upon trust, to invest the proceeds. The testator then directed that W., his heirs, executors or administrators, should stand possessed of all such the general resi- due of her real and personal estate, and, after the sale of such securities whereon the same should * Grieveson v. Kirsopp, 2 Keen, 653. « PoUey V. Seymour, 2 You. & Coll., 708. 80 RESULTING TRUSTS ARISING FROM have been invested, in trust, out of the rents and profits, interest, dividends and proceeds, to pay several life annuities; and after the payment tliere- of, the testatrix directed W., hi^s heirs, executors and administrators, to stand possessed of all the said residue of her said real and personal estate, and of the stocks, funds and securities whereon the same, or any part thereof, should have been invested, and the rents and profits, interest, dividends and pro- duce thereof, in trust, for five persons, (including W. himself,) in equal shares, and for their respective heirs, executors, administrators and assigns, accord- ing to the diflerent qualities thereof." In this case it was held that upon the terms of the will, it was not the intention of the testatrix that the property should be converted out and out, but that W. had a discretion to sell the whole or any part of it when and as he might think expedient, and that until he executed that discretion the property must be con- sidered as remaining in the state it was at the time of the death of the testatrix/ Thus, where it is the manifest intention of the testator to convert land into money, or money into land, that intention prevails, and impresses its char- acter upon the property, and for such purposes the money becomes land, and the land becomes money, by constructive conversion, and whoever becomes the instrument of such conversion will become a trustee for the purposes specified. Thus, where money is devised to be laid out in land to be settled * Jarm. on "Wills, Perkins' notes, 478. EQUITABLE CONVERSION OF PROPERTY. 81 on an heir, the executor is a trustee for such pur- pose, and the money is treated as real estate, or if real estate be charged with the payment of debts, so far as may be necessary for that purpose, it will be treated as converted into personal estate. But it will be considered as thus converted only to the extent necessary for the purposes specified, unless the testator has signified it to be his intention that it shall be converted out and out} But if no such intention be signified, it will retain its character as real estate so far as the charge does not extend, until actually converted.^ Difficulty sometimes arises where the circum- stances evincing the intention of the testator do not amount to absolute certainty, and yet seem to indicate a particular intention. Thus, where a tes- tatrix devised real estate, and afterwards sold it, and the purchase was not completed until after her death ; the question arose as to whom the purchase money belonged, to the devisee, or to her personal representatives. It was held that it belonged to the personal representatives.'' Lord Langdale said " The question whether the devisees can have any interest in that part of tlie purchase money which was unpaid depends upon the rights and interests of the testatrix at the time of her death. She had contracted to sell her beneficial interest. In equity she had alienated the land, and instead of her bene- ficial interest therein, she had acquired a title to ' Bourn r. Bourn, 2 Hare R., 35, 88; Story's Eq., sec. 1213 (a). ' Fanar v. Earl of Wiatertou, 5 Beavan R., 1, 8. 82 RESULTING TRUSTS ARISING FROM the purchase money. What was really hers in ri<,^ht and in equity was not the land, hut the money, of which alone she had a ri^^ht to disj)ose ; and though she had a lien upon the land and might have re- fused to convey until the money was paid, yet that lien was a mere security, in or to which she had no right or interest, except for the purpose of enabling her to obtain the payment of the money. Tlie beneficial interest in the land which she had de- vised was not at her disposition, but was, by her act, wholly vested in another, at the time of her death."' It is well settled that equity will never raise a trust in fraud of the laws of the land. The law will never cast the legal or equitable estate upon a person who l)y law has no right to liold it. But a Court of Equity will not permit this principle to operate to the prejudice of an alien, when the pur- chase of real estate for his benefit is made as a means of collecting a debt due to him, without his knowledge, and with no view of defeating the policy of the law. Thus, where land is taken in payment of a debt due to an alien, and conveyed to a trustee upon a valid trust to sell the same and convert it into personal estate, without any unreasonable delay, for the benefit of the cestui que trust, a Court of Equity, upon the principle of equitable conver- sion, will consider the land as personal estate belong- ing to the alien, and transmissible to his personal representatives as such, and if necessary will com- ^ See preceding note. EQUITABLE CONVERSION OF PROPERTY, 83 pel the trustee holding the legal estate to sell the land and convert it into money.^ So also where an attorney was employed to collect a partnership debt, due to a firm the members of wdiich were aliens ; but, on account of the alienage of the credi- tors, and without any directions from them, took the conveyance in his own name to enable him to sell the land and convert it into money, and wrote to them informing them of what he had done, and promising to sell the land for them as soon as pur- chasers could be found, but died before any sale of the land had been made, and his heirs, after his death, sold the land supjiosing it to be their own ; it was held that the proceeds of such sale, in the hands of the heirs, were personal property belong- ing to the copartnership firm, and that the personal representatives of the last surviving partner were entitled to recover such proceeds as a part of the copartnership effects.^ But where a new character may have been im- pressed upon property by means of a trust or of an ccpiitable conversion, that constructive quality is liable to be determined by the acts of those who may be beneficially interested ; as at any time before the actual conversion, they may elect to take the property in its actual state.'^ Or, through laches, one may loose his right to specific performance/ » Willanl's Eq., 601, Anstice v. Brown, 6 Paige, 448. " Craig V. Leslie, 3 Wlieat., 5(33; also Willard's E(i... 601, * Smiths. Starr, 3 Whart.. 62. * Curre v. Bowyer, 5 Beavan R., G; Mour v. Raimsbeck, 12 Simons, 139. 84 IMPLIED TRUSTS AS LIENS. 9. IMPLIED TRUSTS AS LIENS. There is another ehiss of implied trusts arising from equital)le liens, as distinguished from those liens of -wliich the law takes notice. A lien, in its teclinical sense, is not a property in the thing itself, and consequently it does not constitute a. right of action for the tliini:. In the lanjxuarce of the law it is neither a jus in re or a jus ad rem. It is rather a charge upon the thing. At law, a lien is deemed to be a right to possess the thing, or to retain it until some charge upon it is paid or other- wise removed. \n respect to personal property, a lien, at law, is recognized to exist only wlien it is connected with the possession or the right to pos- sess, the thing itself. Where, therefore, the pos- session is voluntarily parted with, at law, the lien is ordinarily gone. At law these liens arise in one of three ways : 1. By express agreement of the parties ; 2, by the usages of trade or implied agree- ment, and 3, by the mere operation of law. Those liens which are made the basis of implied trusts, generally, are those which exist wholly inde- pendent of the possession of the property to which they are attached as a charge, or an incumbrance, and can be enforced only in equity.^ The usual mode of enforcing such lien, if not otherwise dis- charged, is by sale of the property to which it is attached. It is a doctrine of Courts of Equity that the * story's Eq.. sec. 1058. IMPLIED TRUSTS AS LIENS. 85 vendor of real estate has a lien upon the land for the amount of the purchase money. That this lien is good against the vendee and his heirs, and other privies in estate, and against all subsequent pur- chasers with notice of non-payment of purchase money, and, to the extent of this lien, the vendee becomes a trustee for the vendor and his heirs ; and all persons claiming under the vendee, with notice, also become trustees to the same extent/ The lien of the vendor attaches to the estate as a trust, whether it be actually conveyed, or be onl}^ con- tracted to be conveyed.' Courts of Equity have established this lien, in the nature of a trust, upon the principle, that as between the parties, privies, and others charged with knowledge, it is against good conscience for one Avho has gotten the estate of another to keep it without paying the full consideration money."' And although this trust may stand upon the supposed tacit agreement between the j^^^i-rties, yet it also stands independently of any such supposed agree- ment.'' It has been objected that the creation of this trust by Courts of Equity is in contravention of the Statute of Frauds. But equity proceeds upon the hypothesis that the trust being raised by impli- ' story's Eq., sec. 1217; 4 Kent, sec. 58, p. 152; McLearn v. McLellan, 10 Peters, 625, 610. " Sugtlea on Veiulors, chap. 12, p. 541, 7th ed.; Smith v. Hubbard, 2 Dick. R., 730; McLoarn v. McLellan, ut supra; Dodsley v. Varley, 12 Adolph. & Ellis, (i82, 633. ^ Ste Macreth v. Symmons, 15 Ves. R., 340, 347, 849. * Nairn v. Prowse. 6 Ves., 752; Chapman v. Tanner, 1 Vern. R., 267; also Story's Eq., sec. 1220. 86 IMPLIED TRUSTS AS LIENS. cation, is not within the meaning of the statute, but is excepted therefrom.' This lien, raising a trust for tlie purchase money, Avill of course he discharged when the purchase money is paid, or where anything is received in full satisfaction therefor. It may all be summed up iu this : where the circumstances show that the vendor has consented to look for his payment to other securities than the land, and had ceased to look to the laud for security, the lieu and conse- quent trust will be discharged. By the Civil Law, the lien was discharged wlien the purchase money was paid ; where anything was taken in satisfaction of the price, although payment had not been posi- tively made, and, where a personal credit was given to the vendee excluding any notion of lien." Our courts have adopted the same principle. There has been much dilliculty in cases arising under this principle, in deciding whether, from the circumstances, the vendor intended to part with the lien. The ditficulty has not arisen from a doubt as to the principle, but from the uncertainty of its proper application. The lien of the vendor exists unless discharged ; for the presumption is in ftivor of the lien ; and the onus probandi is with the pur- chaser. The point to be made out is, that the vendor has intentionally waived his lien ; and if, under all the circumstances, it remains doubtful, the lien still exists. The difficulty lies in deter- Coote on Mortg., 227; Macreth v. Symmons, 15 Yes., 439. ' Story's Eq., sec. 1223. IMPLIED TRUSTS AS LIENS. 87 mining Avliat circumstances shall be deemed suffi- cient to evince such an intention/ Each case must be determined upon the evidence which it brings ; for there can be no anticipating the ten thousand combinations and modifications of circumstances by which such an intention may be indicated or rebut- ted. The simple and universal rule is this: when all the facts and circumstances taken together, satisfy the court that the parties intended to waive the lien, it will be discharged ; when that intention is not clearly made out, it will not be displaced. There is ever to be kept in mind, a distinction be- tween a fact to be established, and the evidence by which that fact is to be made out. Thus, if upon the face of the conveyance, the consideration is ex- pressed to be paid, or even if a receipt therefor is endorsed upon the back of the instrument, yet, if in point of fact, the consideration has not been paid, the lien still attaches.^ So also taking security for the purchase money, is not necessarily a discharge of the lien ; it is only presumptive evidence of an intention on the part of the vendor to waive it,'^ and even where security has been taken for the pur- chase money, it has been held that the burden of proof is still upon the vendee to show that the ven- dor agreed to rest on that security.* After all the ' Story's Eq., sec. 1224. « Macreth v. Synimons, 15 Ves., 337 to 350; Hughes v. Kearney, 1 Sch. & Lefr., 135; AVlnter v. Anson, 3 Kuss-, 488; S. C 1 Sim. 8c Stu., 434; Story's Eq., sec. 1225. " See Mackrcth v. Symmons. ut supra. ♦ Hughes V. Kearney, 1 Sch. & Lelr., 135; but sec Bradford v. Marvin, 2 Florida, 463. 88 IMPLIED TRUSTS AS LIENS. decisions, the question is still one of intent on the part of the parties — and the difficulty has been, what shall be deemed conclusive evidence of an intention to waive the lien.' This lien, and consequent trust, extends to the personal representatives of the vendor, and may be enforced by marshalling assets in favor of legatees, creditors, etc., giving them the benefit by way of substitution;" also if a subsequent incumbrancer, or purchaser of the vendee, is compelled to discharge the lien of the vendor, he is substituted in his place, as against other claimants, under the vendor.^ The lien will also prevail against assignees claiming under an assignment under the bankrupt and insol- vent laws;'* and against assignees claiming under a general assignment, made by a failing debtor for the benefit of his creditors,^ also against a judgment creditor of the vendee^ Where there is a particu- lar assignment to particular or specified creditors for their particular security or satisfaction, the lien will not prevail as agaimst such, for they are deemed ' Sec remarks of Sir Wm. Grant in case of Nairn v. Bowse, 6 Ves., 752, found in note to se-c. 1221). Story's Eq.. 7th cd.; also Lord f]ldon, in case of Macrcth v. Symmons, 15 Ves., 342. sarae note. " Story's Eq., sec 788, and autliorities, also sec- 1227, notes and autlio- rities. » Blackburn r. Grofrson, 1 Bro. Ch. R., 420, by Best; Sug. on Ven.,chap. 12, sec. 3, page 557; Mitford v. Mitford, 9 Ves., 100; Grant v. Miller, 2 Ves. St Beam., 300, &c. ; Chapman i'. Tanner, 1 Vern., 267; ex parte Peake, 1 Mad. R., 356. * Farewell t>. Heelis, Ambl. R., 726; Sng. on Vend., chap. 12, sec 3, page 558, 7th ed.; Bayley v. Grcenleaf, 7 Wheat. R., 54, 55; Green r. Demoss, 10 Humph.. 371. " Finch V. Earl of W., 1 P. Wm., 278; 4 Kent's Com., sec 58. page li>4, 2ded. IMPLIED TRUSTS AS LIENS. 89 to have the same equities as bona fide purchasers, without notice. This only applies to cases of actual assignment, without notice/ Where an estate is sold upon which there is an incumbrance, and a deposit of money is made with a third person to be applied in discharge of such incumbrance, a lien in favor of the vendee is crea- ted upon such money. Thus, where it was agreed, on the sale of an estate, that the purchase money should be deposited in the hands of a third person to be applied in discharge of prior incumbrances, it was held that a lien in favor of the vendee was created upon such purchase money to the extent of such prior incumbrances, and consequently the third person became trustee of the vendee to such an extent." Liens in the nature of trusts may be established both upon real and personal estate, or upon money in the hands of a third party, wherever it becomes a matter of agreement between the parties, that the same shall be established. These liens are valid as against the parties themselves, volunteers, and all who have notice, because such an .agreement, in equity, raises a trust. Thus, where a tenant for life of real estate agreed by covenant to set apart and pay the whole or a portion of the annual pro- fits to trustees for certain objects, this covenant » Mitford V. Mitford, 9 Ves., 100; Baylcy v. Greenleaf, 7 Wheat., 56, 57. Tan- V. Middleton, Prec Ch., 174, 175; Collyer v. Fallon, 1 Turn. & Russ., 469, 475, 476; Leggard v. Hodges, 1 Ves. Jr., 478; see Story's Eq., sec. 1039 to 1058. 90 IMPLIED TRUSTS AS LIENS. created a lieu on those profits against liiin, in the nature of a trust/ This lien is continued, upon the estate or upon the purchase money remaining unpaid, uhere the vendee has suhl the hinds to a bona fide purchaser without notice. In such cases, so far as the pur- chase money remains unpaid, the purchaser takes the estate, cum onere, and becomes trustee for the original vendor or for those legally and equitably rei)resenting him; and he may proceed against the estate for his lien, or against the purchase money in the hands of the purchaser." Wliere there is a lien upon different parcels of land for the payment of the same debt, and some of those lands still belong to the person, who, in equity and justice owes it and is bound to pay it, Avhile other parts of the land have been transferred by him to others ; as between himself and such third persons, his part of the land shall be first charged with the debt. In this wa}^, the lien which covered all the parcels of land now attaches to that particular parcel owned by the equitable debtor, and it must be first subjected to the payment of the lien, and will be held in trust for such purpose.'^ ' Lcggard v. Ilorlgcs, 4 Ves. Jr., 478; see Roundell v. Breary, 2 Vern. R., 482; Power r. Bailey, 1 Ball & Beatt., 49; Gardner v. Townshend, Coop. Eq. R., 30G; Wellcsley v. Wellesley, 4 Mylne & Craig, 501; Lewis r. Mad- dock, 17 Ves., 48.- ^ Story's Eq., sec. 1232; Lench v. Lencli, 10 Ves., 511; ex parte Morgan, 12 Ves., 6; see Story's Eq., sec. 1255, 1262. ' Story's Eq., sec. 1233, and authorities there cited. IMPLIED TRUSTS, ETC. 91 10. IMPLIED TRUSTS ARISING FROM THE RIGHT OF EQUITABLE CONTRIBUTION. This trust, as the result of a lien, arises where there is a joint ownership of real or other property, and necessary repairs and improvements are made upon it by one of the owners, for their joint benefit. This lien arises from a contract, express or implied. It is sometimes created by Courts of Equity upon principles of general justice, where equity and good conscience require that the party demanding justice shall first do justice. As where the one who is seeking relief ought to pay his proportion of the money expended in the repairs and improvements of that property which he seeks to enjoy. The equitable maxim, Nemo debet locupletari ex altcrius incommodo, applies in such cases. Thus, where two or more persons make a joint purchase, and after- wards one of them expends a considerable sum of money in repairs and improvements and dies. The money thus expended will be a lien upon the estate, and a trust will thus arise for the benefit of the representatives of him who advanced it.^ This doctrine extends to all cases where the party making the improvements, repairs, etc., has acted in good faith, and has conferred a substantial benefit upon the owner, so that, ex aequo et bono, and good con- science he ought to pay for such benefits. Thus, where a tenant for life, under a will, has finished > Lake V. Craddock, 1 Eq. Abr., 291; S. C 3 P. W. 158; 2 Fonbl. Eq., . 2, chap. 4, sec. 2, note (g) ; Sugd. on Vend., chap. 15, sec. 1, page 637, B 7th ed 92 IMPLIED TRUSTS ARISING FROM THE improvements commenced by the testator, which are permanently beneficial to the estate, he has a lion for such expenditure. So, where a party, lawfully in possession under a defective title, has made permanent improvements, and the true owner is asking relief in equity, he will be required to pay for such improvements. So, where one joint owner has in good faith expended money in improv- ing the estate, and the other seeks a partition, he will be required to reimburse before he can have partition.^ Upon a similar principle, where the true owner of an estate stands by and permits improvements to be made thereon, without giving notice of liis title, in equity he will not be permitted to enrich him- self by another's loss; but before he can enjoy the benefits of such improvements he shall pay for them.'' This same principle is applicable to cases where the parties stand in a fiduciary relation to each other, as where an agent stands by and per- mits his principal to expend money in improve- ments upon his own estate, without giving notice.^ Sureties are entitled to a contribution from each other for moneys paid in discharge of their joint liabilities for their principal. Therefore where one ' Sec Siigd. on Vend., cliap. 20, sec. 10, page 720; Ilibbert v. Cooke, 1 Sim. & Stu.. .552; Robinson v. Bidley, ti Madd. R., 2; see Att'y Gen. v. Baliol Colk'go, 9 Mod. R., 411; Bright v. Boyd, 1 Story R., 478; see Story's Eq., sec. 1237, and note citing the case of Bright v. Boyd; Swan i'. Swan, 8 Price, 518. » Green v. Biddle, 8 Wheat. R., 1, 77, 78; Shine v. Gough,l B. & Beatt.. 444; Cawdor v. Lewis, 1 You. & Coll., 427; see Bright v. Boyd, ut supra. ' Lord Cawdor r. Lewis, ut supra. RIGHT OF EQUITABLE CONTRIBUTION. 93 of the sureties has taken, for his own indemnity, other securities from the principal, equity will ex- tend the benefit of such securities to all the sure- ties/ Where a surety has paid the debt of his principal to the creditor, in equity he is to have the benefit of all the collateral securities, both of a legal and equitable nature, which his principal has de'iDosited with the creditor as an additional pledge for his debt.- Thus, where, at the time the bond of the principal and sureties is given, a mortgage also is made by the principal to the creditor, as an addi- tional security for the debt ; there, if the surety pays the debt, he will be entitled to have an assign- ment of that mortgage, and thus to stand in the place of the mortgagee.^ For it is a rule in equity, that a surety paying off the debt of his principal, shall stand in the place of the creditor, and have all the rights which he has for the purpose of re- imbursement.* So also in equity, a creditor of an estate may recover his debt from the legatees and distributees, who have received payment of their claims from the executor before the debts were paid. In such ' Theobald on Prin. and Surety, chap. 11, sec. 283; Swan v. Wall, 1 Ch. Rep., 149; Steale D. Mealing, 24 Alab., 285. ^ ^ « Craythorn v. Swinburne, 14 Ves., 159; Wright v. Morley, 11 \es., T-, 22; Copis V. Middleton, 1 Turn. & Russ. R., 224; Jones v. Davis, 4 Kuss. R. "^77; Storv's Eq., sec. 499, and authorities cited. ^ See Loud v. Sargeaut, 1 Edw. Ch. R., 164; Marsh v. Pike, 1 Sandf., 211; McLean v. Towle, 3 Sandf., 117, 136, 161; Bank v. Campbell, 2 Rich. Eq. R.,180; Atwood D. Vincent, 17 Conn., 576; Wheatley i>. Calhoon, 12 Leigh. 265. ♦ See Hodgson v. Shaw,3 Mylnc & Keen, 190, &c. ; Story's Eq., 421 (a), and 499, and authorities. 94 IMPLIED TRUSTS ARISING WHERE cases, the executor, ^vllo, uctiiiii; under a mistake, and in good faith, has paid the k'gacies, supposing the debts to be ])aid, is liable to the creditor in an action at law. But equity raises a trust, and fol- lows the assets of the testator into the hands of the legatees and distributees, and converts them into trustees for such creditors/ 11. IMPLIKI) TRUSTS ARISING WHERE PROPERTY IS BE- QUEATHED OR DEVISED SUBJECT TO A CHARGE FOR PAYING DEBTS OR LEGACIES, ETC. There is a distinction to be made between cases where the property is given, in trust, for the pay- ment of debts, legacies, etc., and those cases where the property given is made sul)ject to the charge for the payment of debts, etc. In the former case the trustee has no beneficial interest in the pro- perty; but, after paying the debts, etc., he holds the residue, in trust, for the heir at law or next of kin, according to the character of the property. In the latter case, the donee has the beneficial interest, subject to the payment of such debts, etc., as are by the will charged upon the estate. And he holds the estate to the extent of the debts charged thereon as trustee for the creditors.' As between the imme- diate parties to the original instrument, the trust is an express one. Yet between the trustee and the ' Riddle v. Maiidavillc, 5 Cranch R., 329; Newman v. Barton, 2 Yorn., 205; Noel v. Robinson, 1 Vern., 94; Story's Eq., sec. 1251, 90, 92. " Story's Eq., sec. 1245; King v. Dcnison, 1 Ves. & Beam., 273; Hill v. B. of London. 1 Atk. R., 620; Craig v. Leslie, 8 Wheat. R., 582. PROPERTY IS BEQUEATHED, ETC. 95 cestui que trust, the trust is an implied one, and belongs rather to constructive trusts than resulting ones, and will be considered more fully under that head.^ Charges of this kind are usually made or created by ex2)ress and positive declarations in the deed or will ; but sometimes they arise by implication, from the use of certain expressions, indicating an intention to charge the estate. Such words as the following: "after paying my debts," "after the payment of all just debts," or " my debts being first paid," or " I direct that all my debts shall be paid," are not unfrequently used in connection with lan- guage making a full disposition of the whole estate. The question often arises Avhether the debts are to be treated as a charge upon the real estate. It is now the settled doctrine that they are to be so con- sidered ; and the testator is deemed to have intended to perform an act of justice, before he does one of generosity.- In all such cases, the devisee becomes trustee for the creditors, and each may enforce the trust. In all these cases the intention of the testator, as it can be gathered from the language of the will, is to prevail ; therefore, where, from the language and circumstances, it can be properly inferred that the testator did not intend to charge his real estate with the payment of his debts, Courts of Equity will hold accordingly. Thus, where a testator has direc- ' Story's Eq., sec 1244. ^ Thomas v. Brltnell, 2 Ves., 314; 2 Powol on Devises, by Jarmin, chap. 84, p. GoO; Price v. Jlorth, 1 Phill. Ch. R., 83; Story's Eq., sec. 124G. 00 IMPLIED TRUSTS, ETC ted, in general terms, that his debts shall be paid, and has afterwards pointed out a particidar fund which he wishes to have applied for tliat purpose, that is very properly construed to exclude the in- tention of appropriating a more general fund.' The same lack of intention is also inferred, where the testator directs his executor to pay his debts, and devises no lands to them. For had he intended the executor to pay his debts from the sale of his realty, lie would have devised lands to him for such pur- pose. The maxim is " Expressio unius est exclusio altcriiis." Therefore, where the testator directs a particular person to pay, it is presumed in the ab- sence of other evidence, that he intends him to pay out of the funds with which he is entrusted, rather than out of those over which he has no control.'* So, likewise, where the executor is pointed out as the one to ymy debts, legacies, etc., that excludes the presumption that other persons, not named, are to pay them.^ This subject will be fully considered in a subse- quent chapter on trusts raised for tJie payment of debts. 'Thomas i-. Britu'jU, 2 Ves., ?,13; 2 Jarm. Tow. on Dov.. chap. 34, pp. 653, G54; Graves r. Graves, 8 Sim. R., 43; Price r. Nortli. 1 Thill. Ch. U., 83. ' Story's Eq., sec- 1247, and authorities; see Brydges t'. Landen, cited 3 Vcs. Jr., 550; Keeling v. Brown, 5 Ves., 359; Powell v. Robins, 7 Yes., 209; Wilan v. Lancaster. 3 Russ. R., 108, &c. ^ Story's Eq., sec. 1247, see authorities quoted; Knightlcy v. Knightley, 2 Ves. Jr., 328; Chitty v. Williams, 3 Yes., 531; Keeling v. Brown, -5 Yes., 3C1. CASES OF JOINT PURCHASES, ETC. 9*^ 12. A RESULTING TRUST ARISING IN CASES OF JOINT PUR- CHASES AND PURCHASES WITH PARTNERSHIP PROPERTY. At law, where two persons advance and pay the purchase money in equal proportions, and take a conveyance to themselves and their heirs, they are considered joint tenants, having jointly purchased the chance of survivorship, that is, the right of the survivor to take the whole estate. Equity does not favor these kind of estates, therefore, when circum- stances occur that may be construed into a contrary intent, the court will lay hold of them, and, if possible, prevent a survivorship and create a trust.^ Thus, if a joint purchase is made in the name of one of the purchasers, and the other pays or secures his share of the purchase money, he will be entitled to his share as a resulting trust ; ~ or if two persons advance money by way of a loan, and take a mort- gage jointly, and one of them die, the survivor shall not have the whole sum due on the mortgage ; but the representatives of the deceased party shall have his proportion as a trust, for, from the nature of the transaction, the presumption of a joint tenancy is rebutted.^ Or where, in the purchase of an estate, two or more persons pay the purchase money in un- equal proportions, and take the conveyance in their joint names, this will not be deemed a joint tenancy, * Story's Eq., sec 1206, and authorities cited. ' Wray v. Steele, 2 Ves. &. B., 388. =» Petty V. steward, 1 Cb. R., 31; S. C 1 Eq. Abridge., 290; 2 Fonbl. Eq., B. 2, chap. 4, sec. 4, not« (g) ; Rigdon v. Vallier, 2 Ves., 258; S. C 3 Atk., 731. 7 98 CASES OF JOINT PURCHASES. ETC from the circumstance of paying in unequal pro- portions,' Where real estate is purchased with partnership funds, on partnership account, and for partnership purposes, the property will be deemed, by the court, to be partnership property, no matter in whose name the purchase may have been made or the con- veyance taken. Let the legal title be vested in whom it may, in equity it belongs to the partner- ship, and the partners are deemed cestuis que trust thereof.- This must be taken subject to the rights of bona jide purchasers Avithout notice of its being partnership property. But all persons, taking the legal title with notice that the property was pur- chased with partnership funds, etc., will be treated as trustees of the members of the partnership to the extent of such property. In New York, land held by partners is held by them as tenants in common,^ and not as joint tenants. But lands purchased by partners for the use of the firm in its business, will be considered in equity as personal property, and will go to the survivor or jnsvivors for the payment of debts." » Sugd. on Vend., chap. 15, sec. 1, p. 607, note 1, 7th ed.; also same, chap. 15, sec. 1, p. 127, and note, 9th ed.; Story's Eq., sec. 1206, and note; Lake r. Gibson, 1 Eq. Abridg., 290; Rigdon v. Vallier, 2 Ves. R., 258. ' Anderson v. Lemon, 4 Seld., 236. * Coles I'. Coles, 15 Johns., 159; Buchan v. Sumner, 2 Barb. Ch., 165; Smith V. Jackson, 2 Edw., 28. * Delmonico v. Guillaume, 2 Sandf. Ch., 366; Smith v. Tarlton, 2 Barb., 336; Cox v. McBurney, 2 Sandf., 561; Buckley v- Buckley, 11 Barb., 43. IMPLIED TRUSTS, ETC. 99 13. IMPLIED TRUSTS ARISING IN CASE OF EXECUTORS AND OTHERS STANDING IN A FIDUCIARY CAPACITY. Where the testator, by will, appoints an executor, at the death of the testator the executor is possessed, or entitled to the possession, of all his personal estate, subject to the disposition thereof made by the will ; and after paying all debts and charges made thereon, the executor is entitled to the residue for his own personal benefit.^ This claim of the execu- tor, however, is not favored in equity, and where- ever there are any circumstances which tend to re- but the presumption that the testator intended such gift to the executor, the court will give them great consideration, and, if possible, raise a trust for those upon whom, by law, the estate would have been cast. So strong has been the feeling, that generally, in the United States, provision by statute has been made for such surplus, and in the absence of any declared intention to the contrary, it is distributed among the next of kin. But where no such provi- sion exists, then, in the absence of any intention to the contrary expressed in the will, the executor takes the surplus.'' But Courts of Equity will lay hold of every circumstance from which to gather a different intention, and convert the executor into a mere trustee.^ » story's Eq., sec 1208; 2 Mad. Ch. Pr., 83, 85; 2 FonbL Eq., B. 2, chap. 2, sec. 5, note (fc) ; Jeremy on Eq., B. 1, chap. 1, sec. 2, pp. 122-129. '« Story's Eq., sec 1208; see N. Y. R. S., voL II., p. 92, sec. 52; 2 Kent's Com., 420; 3 Johns. Ch. R., 44; Mass. Rev. Stat., 1835. ' Fonbl. Eq., B. 2, chap. 2, sec 5, note (fc). 100 IMPLIED TRUSTS IN CASE OF FonbLanque in his Equity^ has collected most of the decisions upon the subject, from which he de- duces the following : " The cases are not easily reconcilable, but the following rules have been observed in the decisions upon this subject, 1. As the exclusion of the executor is to be referred to the presumed intention of the testator that he should not take beneficially, an express declaration that he shall take as a trustee, will of course ex- clude him f and the exclusion of one executor as trustee will also exclude his co-executor,^ unless there is evidence of the contrary intention :* and a direction that the executor shall be reimbursed for his expenses, is evidence sufficient to establish his character as trustee.^ 2. Where the testator ap- pears to have intended by his will to make an ex- press disposition of the residue, but, by some acci- dent or omission, such disposition is not perfected at the time of his death, as where the will contains a residuary clause, but the name of the residuary legatee is not inserted, the executor shall be ex- cluded from the residue.*' 3. Where the testator has by his will disposed of the residue of his pro- perty, but by the death of the residuary legatee in ' See preceding note. ' Pring V. Pring, 2 Vcrn., 90; Graydon v. Hicks, 2 Atk., 18; Wheeler r. Sheers, Mosely, 288, 301; Dean v. Dalton, 2 Bro. Ch. R., 634; Benuet v. Baclielor, 3 Bro. Ch. R., 28. ^ White V. Evans, 4 Ves., 21. * Williams v. Jones, 10 Ves., 77; Pratt v. Sladdon. 14 Ves., 193; Daw- son r. Clark, 15 Ves., 416. ' Dalton V. Dean, 2 Bro. R., G34. * Bp. of Cloyne v. Young, 2 Ves.. 91; Lord North v. Pardon, 2 Ves., 495; Hornsby v. Finch, 2 Ves. Jr., 78; Oldham r. Carlton, 2 Cox R., 400. EXECUTORS AND OTHERS. 101 the lifetime of the testator, it is undisposed of at the time of the testator's death.^ 4. Where the testator has given him a legacy expressly for his care and trouble, which, as observed by Lord Hard- wick in Bishop of Cloyne v. Young, 2 Yes. 97, is a very strong case for a resulting trust, not on the foot of giving all and some, but that it was evidence that the testator meant him as trustee for some other, for whom the care and trouble should be, as it could not be for himself" " 5. Though the objection to the executor's taking part and all has been thought a very weak and in- sufficient ground for excluding him from the residue, as the testator might have intended the particular legacy to him in case of the personal estate falling short, yet it has been allowed to prevail ; and it is now a settled rule in equity that if a sole executor has a legacy generally and absolutely given him, he shall be excluded from the residue.^ Nor will the circumstance of the legacy being specific be suffi- cient to entitle him.'' Nor will the testator's hav- ing bequeathed legacies to his next of kin vary the rule,^ for the rule is founded rather on a presump- ' Nichols V. Crisp, Amb., 769; Bennett v. Bachelor, 3 Brown Ch. R., 28. "Foster v. Munt, 1 Vern., 473; Rachfield v. Careless, 2 P. Wm., 157; Cordel v. Noden, 2 Vern.j 148; Newstead v. Johnson, 2 Atk., 46. ' Cook V. Walker, cited 2 Vern., 676; Joslin v. Brewit, Bunb., 112; Dan- vers V. Dewes, 3 P. Wm., 40; Farrington v. Knightly, 1 P. Wm., 544; Vachel V. Jeffries, Prec. Ch., 170; Petit v. Smith, 1 P. Wm., 7. * Randall v. Bookey, 2 Vern., 425; Southcote v. Watson, 3 Atk., 229; Martin v. Rebow, 1 Bro. Ch. R., 154; Nesbit v. Murry, 5 Ves., 149. ' Bayley v. Powell, 2 Vern.. 361; Wheeler v. Sheers, Mosely, 288; An- drew V. Clark, 2 Ves., 162; Kennedy v. Stainsby, E., 1755, stated in note; 1 Ves. Jr., 66. 102 IMPLIED TRUSTS IN CASE OF tion of intent to exclude the executor, than to create a trust for his next of kin ; and therefore if there be no next of kin, a trust shall result for the crown/ G. Where the testator appears to have in- tended to dispose of any part of his personal estate.' 7. Where the residue is given to the executors as tenants in common, and one of the executors dies, whereby his- share lapses, the next of kin, and not the surviving executors, shall have the lapsed share.^ With respect to co-executors, they are clearly with- in the first three stated grounds, on which a sole executor shall be excluded. And as to the fourth ground of exclusion, it seems to be now settled that a legacy given to one executor, expressly for his care and trouble, will, though no legacy be given to his co-executor, exclude.* " As to the fifth ground of exclusion, of a sole executor, several points of distinction are material in its application to co-executors. A sole executor is excluded from the residue by the bequest of a legacy, because it shall not be supposed that he was intended to take a part and to take all. But if there are two or more executors, a legacy to one is not within such objection ; for the testator might intend to him a preference pro tanto.^ So, where several executors have unequal legacies, whether ' Middleton v. Spicer, 1 Bro. Ch. R., 201. ' Urquhart v. King, 7 Ves., 225. ' Page V. Page, 2 P. Win., 489; 1 Ves. Jr., 66, 542. * White V. Evans, 4 Ves., 21. ' Colesworth v. Brangwin, Prec. Ch., 323; Johnson v. Twist, cited 2 Ves., 166; Buffer v. Bradford, 2 Atk., 220. EXECUTORS AND OTHERS. 103 pecuniary or specific, they shall not thereby be ex- cluded from the residue.^ But where equal pecu- niary legacies are given to two or more executors, a trust shall result for those on whom, in case of in- testacy, the law would cast it.'^ But see, Heron v. Newton, 9 Mod., 11 Qu., Whether distinct, specific legacies, of equal value, to several executors, will exclude them?" " It now remains to consider, in what cases an executor shall not be excluded from the residue. Upon which it may be stated as a universal rule, that a Court of Equity will not interfere to the pre- judice of the executor's legal right, if such legal right can be reconciled with the intention of the testator, expressed by or to be collected from his will. And, therefore, even a bequest of a legacy to the executor shall not exclude, if such legacy be consistent with the intent that the executor shall take the residue : as, where a gift to the executor is an exception out of another legacy,^ or where the executorship is limited to a particular period, or determinable on a contingency, and the thing bequeathed to the executor upon such contingency taking place, is bequeathed over;* or where the gift is only a limited interest, as fur the life of the ' Brasbridge v. Woodroffe, 2 Atk., 69; Bowker v. Hunter, 1 Bio. Ch. R., 328; Blinkhorn r. Feast, 2 Ves., 27. ^ Petit V. Smith, 1 P. Wm., 7; Carey v. Goodinge, 3 Bro. Ch. R., 110; Muckleston v. Brown, 6 Ves., 64. ' Griffeth r. Rodgers, Prec Ch., 231; Newstead v. Johnstone, 2 Atk., 46; Southcot V. Watson, 3 Atk., 229; but see Darrah v. McNair, 1 Ashm., 236 j Paup V. Mingo, 4 Leigh, 163. * Hoskins v. Hoskins, Free Ch., 263. 104 IMPLIED TRUSTS IN CASE OF executor/ or when the wife is executrix, and the bequest is of her paraphernalia."- The principle to be kept in mind is this: ''the intent guides the use,'' and wlierever the language and circumstances make clear the intent, to the sa- tisfaction of the court, that, being legal and proper, it is to be followed ; but in cases where that cannot be ascertained, then the estate shall go where the law would cast it, as in cases of intestacy. Such will be found to be the principle in all the decisions. The conflict is often apparent and not real ; and arises from considering the particular kind of evidence by which the intent is proved, as of more import- ance than the intent itself- The same important fact, taken with one set of circumstances, would furnish indubitable proof of an intent, which would not be proved by the same important fact taken with another set of circumstances. Great care should be taken at all times, never to confound the fact to be proved, with the evidence by which it is to be proved. There is very little conflict of principle in the administration of justice. The conflict is in the application of the principle to the endless variety of cases which are liable to arise. Under the law, where the testator appoints an executor, that executor, by an act of the law, becomes vested with all the personal estate of which the t-estator died possessed. As a consequence of ^ Lady Granville v. Dutchess of Beaufort, 1 P. Wmjj 144; Jones r. West- combe, Prec Ch., 315; Nourse v. Finch, 1 Ves. Jr., MB. " Lawson r. Lawson, 7 Bro. P. C, 521; Ball v. Smith, 2 Vcrn., 675; 3 Wooddes., sec. 59, pp. 495 to 503. EXECUTORS AND OTHERS. 105 this principle, when the testator appoints his debtor to be his executor, the office, bj law, extinguishes the debt, for, by the act of the law, it becomes his/ But equity looks deeper, saying, " the intent governs the use," and will not consider the debt as extin- guished by the appointment of the debtor as execu- tor; that is, equity does not consider that single fact as sufficiently evincive of an intent on the part of the testator, to forgive the debt, and consequently will treat the debt as though it were due from any third person." The rule by which the undisposed residue is applied is laid down thus: " Where there appears a plain implication or strong presumption that the testator, by naming an executor, meant only to give the office of executor and not the beneficial interest, the person named is considered as trustee for the next of kin."^ 14. IMPLIED TRUSTS ARISING BY WAY OF SUBSTITUTION. This kind of trust arises as between the parties, where one takes an estate already charged with the payment of debts, legacies, or other charges, and makes himself personally liable therefor by his own express contract. In such case the original trust attached to the estate, continues, not as a lien merely, but the real estate is treated as the primary fund. The implied trust arises between the creditor * story's Eq., sec 1209, and Hudson v. Hudson, 1 Atk., 461. " Hudson V. Hudson, ut supra; Phillips v. Phillips, 1 Ch. Cas., 292; Brown v. Selwin, Cas. T. Talbot, 240; Story's Eq., sec 1209. ' Ellcock V. Mapp, 16 Eng. L. and Eq., 27. lOG IMPLIED TRUSTS ARISING and the party who takes the estate subject to such charge, and also between such party and the heirs, devisees, and distributees, of the debtor, provided such debt be paid out of the personal assets of the debtor's estate/ Where a settler upon a marriage settlement created a trust term in his real estate for the raising of por- tions, and also covenanted to pay the amount of the portions, it was held to be a charge primarily on the. real estate, and that the personal estate was auxili- ary thereto/ It is also laid down as a rule, that between the representatives of the real and personal estate, the land is the primary fund to pay off the mortgage." That where the estate descends or comes to one, subject to a mortgage, although the mortgage be afterwards assigned, and the party enter into a covenant to pay the money borrowed, yet that shall not bind his personal estate. That the purchaser of land subject to the payment of a mortgage debt does not make the debt personal, even though additional security be given.^ It is a general rule that a covenant by a settler to convey and settle lands, without specifying the particular lands, will not constitute a specific charge upon his real estate ; but at most the covenantee will be deemed a creditor by specialty.* Mr. Fon- ' 1 Mad. Ch. Pr., 397; Story's Eq., sec. 574, 1003, 1248; see Lechmerep. Charlton, 15 Ves., 197, 198; McLearn i'. McLellan, 10 Peters' R., 625. " 3 Johns. Ch. R., 252. ^ 2 Bro., 57; also Evelyn r. Evelyn, 2 P. Wm., 659. * See Sugd. on Vend., chap. 15, sec. 4, p. 633, 7th ed.; Freemoult v. Dcdire, 1 P. Wm., 429; Finch v. E. of Winchelsea, 1 P. Wm., 277; Wil- liams V. Lucas, 1 P. Wm., 430, Mr. Cox's note (1). BY WAY OF SUBSTITUTION. 107 blanque in his Equity ^ says, that a covenant to settle or to convey particular lands, at law, will not create a lien upon the lands ; but in equity, if for a valuable consideration, such a covenant will be deemed a specific lien upon the land, and the court will decree against all, holding under such covenan- tor, except bona fide purchasers without notice.^ But a general covenant to settle lands of a certain value, without mentioning any lands in particular, will not create a specific lien on any of the lands of the covenantor.^ In the case of McLearn v. McLellan,* Justice McLean laid down the following principles as goverijiing in determining the liability of the real or personal estate, for the payment of mortgage debts : "If the contract be personal, although a mortgage be given, the mortgage is considered in aid of the personal contract, and on the decease of the mortgagor, his personal estate will be consi- dered the primary fund, because the contract was personal. But if the estate descend to the grand- son of the mortgagor, then the charge would be upon the land, as the debt was not the personal debt of the immediate ancestor. And so, if the contract is in regard to the realty, the debt is a charge on the land. It is in this way that a Court of Chancery, by looking at the origin of the debt, is enabled to fix the rule between the distributees."* * B. 1, chap. 5, sec. 7, note (. Perchard, 1 Esp. N. P. R., 205; Wor- dell V. Smith, 1 Campb. N. P. R., 332. 118 CONSTRUCTIVE TRUSTS IN CASES OF that where the vendee took an absolute bill of sale to take effect immediately bj the face of it, and agreed to leave the goods in the possession of the vendor for a limited time, such an absolute convey- ance, without the possession, ATas such a circum- stance per se, as made the transaction fraudulent in point of law.^ Wherever the circumstances attending the sale are such as to make the non-delivery of the goods consistent with the deed, the court are inclined to seize upon such circumstances, and admit of such explanation as may be given,^ holding that non- delivery of possession is only prima facie evidence of fraud. Chancellor Kent^ says, that, "there have been many exceptions taken, and many qualifica- tions annexed to the general rule ; and it has be- come difficult to determine when the circumstance of possession not accompanying and following the deed, are per se a fraud in the English law, or only presumptive evidence of fraud to be disclosed at the trial. It certainly is not any thing more, if the purchaser was not a creditor at the time, and the goods were under execution, and the transaction was notorious, and not, in point of law clandestine or fraudulent." ^ Notwithstanding the general rule as laid down in the case of Edwards v. Harben, the tendency has * See preceding note. '' Bucknal v. Roiston, Prec. in Ch., 285; Cadogan v. Kennett, Cowp. Rep., 432; Eastwood v. Brown, Ryan & Moody, 312. ^ 2 Com., 518; see Kidd v. Rawlinson, 2 Bos. & Pul., 59; see also Cole V. Davies, 1 Ld. Raj-m., 724; Lady Arundel v. Phipps, 10 Ves., 145; Watkins v. Birch, 4 Taunt. R., 823. ACTUAL AND CONSTRUCTIVE FRAUD. 119 been to overthrow it entirely, as it must be in every other country where a similar rule prevails. It is impossible for any court to foresee the endless va- riety of circumstances which may arise, where the application of such a rule would be unjust ; there- fore it is far better, to treat the continued posses- sion of the vendor or mortgagor as prima facie evi- dence of fraud, and not fraud per se. There can be little difficulty in the application of such a princi- ple, leaving the jury at all times, to find the fact of fraud or not, upon the evidence. In the United States, the Federal Courts have adopted the doctrine of Edwards v. Harben accord- ing to the decisions both of the Supreme, and Cir- cuit Courts.^ In several of the States the same rule has been adopted," while in others, the continued possession of the vendor is deemed to be only pre- sumptive evidence of fraud, which may be explained.^ But however much States or countries may differ upon the question, as to what is fraud per se, and what is only prima facie evidence of fraud, they very generally agree as to the manner of treating it when it is clearly ascertained. The law requires men to be just and honest in their intentions, and truthful in their representations, in their business inter- course with each other ; and whenever, in violation of such requirement, one fraudulently acquires the possession of the property or estate of another, with- ' Hamilton v. Russell, 1 Cranch R., 310; U. States r. Conyngliam, 4 Dall. R., 358; S. c', Wallace, C C R., 178; Meeker v. Wilson, 1 Gall. R., 419. * See Kent's Com., vol. XL, pp. 521 to 532. 120 CONSTRUCTIVE TRUSTS IN CASES OF out gross laches on the part of the other party, trie law will treat such fraudulent party as the trustee of the other party, and will decree him to execute such trust. These constructive trusts arise in cases of con- structive fraud. By constructive fraud, is meant such acts or contracts, as are deemed equally repre- hensible with positive fraud, although not originat- ing in any evil design to injure any person ; but because of their tendency to deceive or mislead others, or to impair public confidence, they are dis- countenanced/ The end of the law is to secure exact justice to all men ; to this end, it aims at shutting out all inducements to perpetrate wrong, rather than rely upon mere punitive or remedial justice. Therefore it aims at prohibiting all such acts or contracts as would tend to mislead or de- ceive individuals, or impair the public interests. This it does, by disarming the parties of all legal sanction and protection for such of their acts as have such an injurious tendency.^ 1 . Cases which are Discountenanced because they ARE Contrary to some General Public Policy, OR some Fixed Artificial Policy of the Law. 1. As against public policy, may be considered contracts and agreements respecting marriage, known as marriage brokage contracts. Courts of equity interfere in cases of this sort from consid- ' story's Eq., sec. 268. ACTUAL AND CONSTRUCTIVE FRAUD. 121 erations of public policy/ When one party engages to give another a compensation in consideration that such other party will negotiate for him an advan- tageous marriage, he seeks to introduce influences and considerations in the formation of matrimonial alliances whose tendencies must be fatal to that sound morality and good faith which alone can make such an alliance a blessing to the parties and to society. Therefore, equity will not suffer a bond or other premium given for procuring a marriage, to be enforced by the party to whom it is given, because such transaction is a fraud upon the rights of others, as well as detrimental to the best inter- ests of society.^ So averse are courts of equity to contracts of this kind, that they hold them inca- pable of confirmation,^ and even money paid under them, may be recovered back again in a court of equity.* For similar reasons the law discountenances all secret contracts made with parents, guardians, or others standing in peculiar relation to the party, ' Fonbl. Eq., B. 1, chap. 4, sec 11; Dniry v. Hook, 1 Vera., 412; Kemp V. Colman, 1 Salk., 156; Baker v. White, 2 Vern., 215; Boynton v. Hub- bard, 7 Mass. R., 118. "" Drury v. Hook, 1 Vern., 412; Smith v. Brunnig, 2 Vern., 392; Roberts V. Roberts, 3 P. Wm., 76; Smith v. Aykwell, 3 Atk., 566; Cole r. Gibson, 1 Ves., 507; Debenham v. Ox, 1 Ves., 277; Williamson v. Gihon, 2 Sch. & Lef., 357; Story's Eq., sec. 260; 1 Fonbl. Eq., B. 1, chap. 4, sec. 10, note (r) ; Newland on Contracts, 469 to 472; Boynton v. Hubbard, 7 Mass., 112; Shirley r. Martin, cited in 3 P. Wm., 75; same case, in 1 Ball & Beatty, 357; Hall v. Potter, 3 Leo., 411; Hylton v. Heylon, 2 Ves., 548. ' Cole V. Gibson, ut supra; 1 Fonbl. Eq., ut supra, note (s) ; Roberts r. Roberts, ut supra; Cox, note 1. * Smith V. Brunnig, ut supra; 1 Fonbl. Eq., ut supra; Goldsmith r. Brunning, 1 Eq. Abridg., 89, F. 122 CONSTRUCTIVE TRUSTS IN CASES OF whereby, upon a treaty of marriage, a considera- tion is to be received. The law holds all such con- tracts and agreements void, as being of a mischiev- ous tendency, and against public policy. Thus, where a bond was taken by a father from his son, upon his marriage, it was held void, as being ob- tained by undue influence or under parental awe.^ So, where a party upon his marriage with the daughter of A., gave the latter his bond for a sum of money in order to obtain his consent to the mar- riage, it was held as utterly void.^ All these transactions being void, as against pub- lic policy, and consequently conferring no legal and equitable rights whatever, it follows that those par- ties who acquire the possession of property under such agreements, do not acquire the legal right thereto, and therefore, hold in trust for the legal owners thereof. Courts of equity take this high ground for the purpose of throwing such security around the contract of marriage as will place all parties upon the basis of good faith, mutual confi- dence, and equality of condition.^ Neither will equity permit any underhanded management or agreements with any of the parties to interfere with the open and public treaty and agreement of marriage. Thus, where upon a mar- riage, a settlement was agreed to be of certain pro- ' See 1 Fonbl. Eq., B. 1, chap. 4, sec. 10, 11, also Williamson v. Gihon, 2 Sch. & Lef., 362; 2 Eq. Abridg., 187. ^ Keat V. Allen, 2 Vern., 588; see 1 Fonbl. Eq., B. 1, chap. 4, sec 11. ' Story's Eq., sec. 267; Lamlee v. Hanman, 2 Vern., 499, 500; Pitcairne V. Ogbourne, 2 Ves. Sr., 375; Neville v. Wilkinson, 1 Bro. Ch. R., 543, 547. ACTUAL AND CONSTRUCTIVE FRAUD. 123 perty by relations on each side, and after marriage, one of the parties procured an underhand agreement from the husband to defeat the settlement in part, the underhand agreement was set aside and the ori- ginal settlement carried into full effect.^ Courts of equity hold all such agreements as fraud upon inno- cent parties, and therefore void.^ Thus, also, where the parent declined to consent to a marriage with the intended husband on account of his being in debt, and the brother of the intended husband gave his bond for the debt, to procure such consent, and the intended husband gave his secret counter bond to his brother to indemnify him, and the marriage proceeded upon the faith of the extinguishment of the debt, the counter bond was treated as a fraud upon the marriage, and all parties were held enti- tled the same as if the counter bond had not been given.^ So likewise, if a third party, for the purpose of influencing the happening of the marriage, make false and fraudulent representations he shall answer therefor. Thus, where upon a treaty of marriage, a party to whom the intended husband was indebted concealed his own debt and misrepresented to the wife's father the amount of the husband's debts, the transaction was treated as a fraud upon the mar- riage, and the creditor was prevented, by injunction, > Payton t;. Bladwell, 1 Vern. R., 240; Stribblehill v. Brett, 2 Vern. R., 445; Free, in Ch., 165. =" Story's Eq., sec. 267. o .. i r n qfifi- Tiir- 3 Redman .. Redman, 1 Vern., 348; Scott .. Scott, 1 Cox R , 366, Tnr- ton V. Benson, 1 P. Wm., 496; see also Palmer v. Neave, 11 Ves., Ibo, Lamlee v. Hamlin, 2 Vern., 466. 124 CONSTRUCTIVE TRUSTS IN CASES OF from enforcing his debt, although it did not appear that there was any actual stipulation on the part of the wife's father, in respect to the amount of the husband's debts/ For the like reason a settlement secretly made by a woman, in contemplation of marriage, of her own property to her own separate use, without the know- ledge of her intended husband, is in derogation of the marital rights of the husband, and a fraud upon his just expectations." So likewise a secret convey- ance in favor of a person for whom she is under no moral obligation to provide, would be deemed fraud- ulent.^ In all cases of this character a trust would result to the husband of all such property.* 2. Where there is a conveyance or a devise to trustees upon a secret understanding that the pro- perty is to be applied to illegal purposes, or for the accomplishment of objects which the policy of the law forbids, the law will not allow such convey- ances to take effect, as being in fraud of the rights of the parties who would otherwise be entitled thereto, as well as upon the legislature itself ; and a ' Neville v. Wilkinson, 1 Bro. Ch. R., 543; S. C, P. Wm., 74, Cox, note; Fonbl. Eq., B. 1, chap. 4, sec. 11, note (x) ; Monteflori v. Montefiori. 1 W. Black. R., 363; also Thompson v. Harrison, 1 Cox R., 344; see Story's Eq., sec. 271, 272, and authorities cited. " See Story's Eq., sec. 273, and authorities; Jones v. Martin, 3 Anst.R., 882; Lance v. Norman, 2 Ch. R., 41; Blanchet v. Foster, 2 Ves., 264; England v. Downs, 2 Beavan, 522; Cole v. O'Niel, 3 Md. Ch. Decis., 174. ° England v. Downs, ut supra; Cheshire v. Payne, 16 B. Monr., 618. * Hunt V. Mathews, 1 Vern., 408; Strathmore v. Bowes, 2 Bro. C. C, 345; S. C, 2 Cox, 28, and 1 Ves. Jr., 22; Ball v. Montgomery, 2 Ves. Jr., 191; Goddard v. Snow, 1 Russ., 485; see Hill on Trustees, and authorities cited, p. 163. ACTUAL AND C0NSTRUCTI\T: FRAUD- 125 constructive trust will arise in favor of the party who would have become legally entitled upon failure of the illegal gift. Where a bill is filed by the heir at law, alleging such a trust, it is held that the defendants are bound to answer, notwithstand- ing the Statute of Frauds/ 3. Upon a similar ground, as being against public policy and in fraud of the rights of innocent parties, equity will not permit to be enforced a bond or other premium for procuring a public office or situation for another/" These contracts for the buying, selling or procuring of public ofiices have an influence to diminish the respectability, respon- sibility and purity of public officers, and to intro- duce a system of official patronage and corruption, wholly at war with the public interest.=^ Says Jus- tice Story, such contracts are justly deemed con- tracts of moral turpitude, and are calculated to betray the public interests into the administration of the weak, the profligate, the selfish and cunning.* These contracts are therefore held as utterly void ; being contrary to the soundest public policy. 4. It is deemed to be against public policy to im- pose restraints upon trade generally, therefore bar- 1 Muckleston v. Brown, 6 Ves., 52, 67; Strickland v. Aldridge, 9 Ves., 516; see Russell v. Jackson, 10 Hare, 204; Chamberlain v. Agar, 2 V. & B., 259; Podmore v. Gunning, 7 Sims., Qii. « Whitingham v, Burgoyne, 3 Anst., 900; Morris v. McCuUoch, AmbL, 432, and 2 Ed., 190; Hartwell v. Hartwell, 4 Ves., 811, 15. ^ Story's Eq., sec. 295; 1 Fonbl. Eq., B. 1, chap. 4, sec. 4 note («) ; ^,, T 1 A+1, Qf^o. «i C, "> Ves 124, 156; Bovnton v. Chesterfield v. Jansen, 1 Atk., 3o2, b. O., - ves., i^t, , . Hubbard, 7 Mass. R., 119; Hartwell r. Hartwell, 4 Ves., 811, 815. ♦ Story's Eq., sec. 295, see authorities there cited. 126 CONSTRUCTIVE TRUSTS IN CASES OF gains and contracts made in restraint of trade, if designed to be general, are void.* Contracts and agreements restraining the exercise of a particular trade, by certain individuals in certain particular places, or for certain limited periods, if made upon a good or valuable consideration, are valid. It is not deemed to be against public policy for an indi- vidual to agree to desist from the exercise of a par- ticular trade in a particular locality ; because the public interest is not limited by any such locality, and he is left at liberty to exercise it elsewhere.^ But if the restriction be general and unqualified it is void, as against public policy.* Cases of this cha- racter, where the legal possession of property has been changed,"give rise to constructive trusts, which courts of equity enforce. 5. In many cases property is directed to be sold at public auction to the highest bidder, as in the case of the sale of chattels or other property on execution. It is in accordance with justice and the policy of the law that there should be competition at such sales, that the property may bring a fair price ; to this end it usually requires a public place to be selected for the sale, and public notice to be given of the time and place and articles sold ; it is therefore against public policy and the requirements ' Story's Eq., sec. 292; See Mitchell v. Reynolds, 1 P. Wm., 181; also. Pierce v. Fuller, 8 Mass. R., 223; also Morris v. Colman, 18 Ves., 436; Alger V. Thatcher, 19 Pick., 51; Lawrence v. Kidder, 10 Barb., 653. " See Tainter v. Ferguson, 7 Com. B. Rep., 716; Hartley v. Cummings, 5 Com. B. Rep., 247; Mallen v. May, 11 M. & W., 653; Hastings v. Whil- tey, 2 Exch. R., 611; Nichols i'. Stratton, 10 Q. B. Rep., 346; Lange v. Worke, 2 Ohio R,, 519; see Story's Eq., sec. 292, and authorities cited. ACTUAL AND CONSTRUCTIVE FRAUI>. 127 of justice for individuals, by agreement, to combine to defeat or avoid a just and fair competition at such sales. Therefore agreements in which parties en- gage not to bid against each other at these public sales are void, as being against justice and public policy. Such agreements operate as a fraud upon the sale.^ It is equally against public policy to em- ploy underbidders to enhance the price, or in any manner to deceive the bidders ; and if it is done, and bidders are thereby deceived, the sale will be held to be void.^ 6. It is the policy of the law to secure a prompt and faithful administration of the government in every department thereof; and to discountenance every influence which would lead to violations of the trust reposed in the officers of the law ; consequently, all agreements founded upon violations of public trust and confidence are held to be void ; and so far as they amount to direct bribes, criminal. Hence any agreement by which a public officer is to receive an extra remuneration for doing that which the duties of his office require, is deemed to be fraudulent and against public policy. The object apparent in such a case, is to exert an undue influence upon the officer, which shall tend to swerve him from a faith- ful performance of his duty. Thus, a contract to procure the passage of an act of the legislature by '■Jones V. Caswell, 3 Johns. Cases, 29; Doolin r. Ward, 6 Johns. R., 194; Wilberr. Howe, 8 Johns., 444; Gardner v. Morse, 25 Main., 140; Brisbane v. Adams, 3 Comst., 130; Hamilton v. Hamilton, 2 Rich. Eq. R., 355. * Story's Eq., sec. 293, and authorities there cited. 128 COJJSTRUCTIVE TRUSTS IN CASES OF any improper means, such as using personal influ- ence with the members, is void, as being against public policy, and the integrity of our political in- stitutions.^ So, likewise, an agreement by a deputy sheriff to pay the sheriff a certain sum as the price of his appointment, is void.^ Likewise an agree- ment by a party to a suit, with a witness, that he will pay him for his attendance on court a certain sum, and more if he succeeds, is manifestly corrupt, and void.'^ So, where a city charter prohibited any member of the council from being interested in any contract, the payment for which was to be made by a vote of such council, and a member of the council, by a secret agreement with a contractor became in- terested in such contract, a note given by the con- tractor to such member, for his share of the profits, is absolutely void, even in the hands of an innocent assignee.* Upon the same principle, all agreements for the suppression of criminal prosecutions are void, as having a tendency to subvert public justice.^ 7. Another class of agreements which are void, as being against public policy, are those founded on corrupt considerations, or moral turpitude. All such contracts, whether directly prohibited by sta- tute or not, are considered as frauds upon the moral law, upon which all law is based, and from which ' Story's Eq., sec. 293; Clippenger v. Hepbaugh, 5 Watts & Serg., 315; Wood V. McCann, 6 Dana, 366; Pingry v. Washburn, 1 Aikens, 264; Gray r. Hook, 4 Comst., 449. * Ferris v. Adams, 23 Vern., 136. * Dawkins v. Gill, 10 Alab., 206. * Bell V. Quinn, 2 Sandf., 146; Story's Eq., sec. 293. * Story's Eq., sec. 294, and authorities cited. ACTUAL AND CONSTRUCTIVE FRAUD. ^^29 it derives its chief sanction. Hence, all agreements of whatever character, no matter how formally or solemnly entered into, all bonds or securities given as the price for future illicit intercourse, are void absolutely.^ In all cases of the foregoing character, where the bonds, agreements, etc., are void as being against public policy, implied or constructive trusts may arise. Money or property may have been passed between the parties in performance of the whole or a part of such agreements, which is liable to be recovered back, and, for the time being, converting one party into a trustee for the other, or for such other persons as may be legally entitled to the same. To determine accurately when trusts may or may not arise in cases of this kind, it will be necessary to consider the nature and extent of relief which courts of equity will grant to persons who are parties to such agreements, and are there- fore deemed participes criminis. In general, courts of equity follow the rule of law, and will inter- pose to grant no relief to parties to illegal agree- ments.^ They will never aid in the execution of such agreements, neither will they grant relief to a party where his complaint shows that he still relies upon the terms of his immoral contract for relief.' But if the party asking relief repudiates the agreement or other transaction upon the ground that it is against public policy, and washes his hands ' story's Eq., sec. 296, and authorities cited. ' Story's Eq., sec. 298; Harrington v. Bigelow, 11 Paige, 349. » Story's Eq., sec. 296; Bates v. Chester, 5 Beavan R., 103. 9 130 CONSTRUCTIVE TRUSTS IN CASES OF of all wrong in the premises, relief will be granted notwithstanding his former relation as participes cri- minis. This relief, however, is given, more in behalf of the public than of the party, and is based rather upon principles of public policy than private jus- tice.^ In cases where public policy seemed to de- mand it, courts of equity have not only granted relief by setting aside the agreement or other trans- action, but, in many cases, have ordered a repay- ment of the money which had been paid under such agreement."^ Lord Thurlow was of the opinion that in all cases where money had been paid for an illegal purpose, it might be recovered back; and that public policy would not permit one who had thus obtained possession of money or property, to retain it ; but that the parties should be put back in the state they were in before the transaction,^ and there is much good sense in his Lordship's opinion. But the current of modern authorities is against that doctrine.^ Courts of equity are much inclined to leave the parties to all such agreements without aid, unless public policy plainly requires it." They adhere to the old maxim, in pari delicto potior est conditio defendentis, et possidentis. A careful investigation of all the authorities will •St. John V. St. John, 11 Ves., 536; Hatch v. Hatch, 9 Ves., 292; Bromley v. Smith, Doug. R., 695; Story's Eq., sec. 298. * See Neville v. Wilkinson, 1 Bro. Ch., 547, 548; 18 Ves., 382; Smith v. Brunning, 2 Vern. R., 392. ^ Inhabitants of Worcester v. Eaton, 11 Mass. R., 375-379; Sharp v. Taylor, 2 Phillips' Ch. R., 801. * See Rider v. Kidder, 10 Ves., 356; Smith v. Bromley, Doug R., 696, note; also Adams v. Barrett, 6 Georgia R., 404. ACTUAL AND CONSTRUCTIVE FRAUD. 131 show that Equity, as well as the law, locks rather to the maintenance of a sound public policy in granting relief in all the foregoing class of cases, than to the private claims of the party in delicto ; and wherever, in the opinion of the court, public policy requires it, they will not only set aside the argument as void; but will order all moneys or other property passed under it, to be returned ; and will; for that purpose, raise an implied or construc- tive trust.^ 2. Arising out of the Peculiar and Confidential Relation of the Parties. There is yet another class of constructive frauds which arise out of the peculiar, confidential, or fidu- ciary relation existing between the parties. The facts upon which the court act become significant from such relation of the parties. The relief granted in this class of cases, proceeds upon the hypothesis that an undue influence has been exerted, by means 'Hill on Trustees, 164; Smith t'. Brunning, 2 Vern., 392; Morris i^. McCulloch, Arab., 432. As to agreements against public policy, see Davi- son V. Seymour,! Bosvvorth, (N. Y.,) 88; Carroll v. Shelds,4 E.D. Smith, (N. Y.,) 466; Millon v. Hayden, 82 Alab., 30; Pettit v. Pettit, 32 Alab., Spinks V. Davis, 32 Miss., 152; Fireman's Ch. Ass., v. Berghaus, 13 La. An., 209; Shelton v. Marshall, 16 Texas, 344; Deffy v. Shockey, 11 Ind., 70; Edy v. Capron, 4 R. I., 394; Ingram v. Ingram, 4 Jones Law, (N.C.,) 188; Stanly v. Nelson, 28 Alab., 514; Cunningham v. Cunningham, 18 B. Hour., (Ky.,) 19; Burger v. Rice, 3 Ind., 125; Sedgwick r. Stanton, 4 Kern., (N. Y.,) 289; Bryan v. Reynolds, 5 Wis., 200; Schermerhorn v. Talman, 4 Kern., (N. Y.,) 93; Atlas Bank v. Nahant Bank, 3 Met., 581; Smith V. Bromley, 2 Doug., 696. As to what may or may not be void according to circumstances. Bellows v. Russel, 20N.H.,427; Dodge v. Stiles, 26 Conn., 463; Gibson v. Pearsall, 1 E. D. Smith, (N. Y.,) 90. 132 CONSTRUCTIVE TRUSTS IN CASES OF of the confidence or trust reposed in the party. Says Justice Story, " In this class of cases, there is often to be found some intermixture of deceits, impo- sition, overreaching, unconscionable advantage or other marks of direct and positive fraud."^ Courts act upon the principle that where confidence is reposed, it shall be faithfully acted upon, and pre- served from any intermixture of imposition ; that they will not permit a party, standing in a situation where he can avail himself of such confidence, to derive any advantage from that circumstance ; for to do so, would be to encourage a breach of confi- dence. Therefore where an honest confidence is reposed, and that confidence is abused, equity will grant relief,^ 1. Parent and Child. The relation of parent and child is one of affec- tion and confidence ; and the influence which the parent naturally has over the child may be abused ; although it is to be presumed that parental affection, in all cases, is superior to selfish considerations. Yet courts of justice have been obliged to watch over the interests of children, to protect them from parental overreaching ; therefore, contracts and conveyances by children for the benefit of parents are objects of ' Story's Eq., sec. 307; see Goddard v. Carlisle, 9 Price R., 169; Galla- tiania v. Cunningham, 8 Coweu R.. 361; Taylor v. Taylor, 8 Howard U. S. C. R., 200. » Gartside v. Isherwood, 1 Bro. Ch. R., App., 560; Osmond v. Fitzroy, 3 P. Wm., 129, 131, Cox notes; Story's Eq., sec. 300; Spiuk v. Davis, 32 Miss., 152. ACTUAL AND CONSTRUCTIYE FRAUD. 133 judicial jealousy; and if circumstances show that they were not made in scrupulous good faith, or are not reasonable, they will be set aside/ The pre- sumption, however, is in favor of parental honesty and good faith ; and, in the absence of circum- stances, evincing a contrary state of things, such contracts and conveyances will be deemed fair and honest, as between the parties.^ The same principle applies to those standing in loco parentis.^ It also ap- plies to other domestic or family relations, as between brothers and sisters. Thus, where three brothers induced their sister, who had a reversionary interest in lands devised by their father to the brothers for life, to release her interest to them without any consideration, except a belief that their father intended to devise the land to the brothers in fee, the deed was set aside, it appearing that the sister was in a feeble state of health and had always re- lied upon the brothers for advice."* It is obvious that when an advantage has been taken of the confidence incident to such relation, and money or other property has been obtained thereby, it is the duty of the court to raise a trust in favor of the defrauded party. ' Slocum V. Marshall, 2 Wash. C. G. R., 397; Baker v. Bradly, 3 Eng. L. and E. R., 449; Jenkins v. Pye, 12 Peters' R., 253, 254; Hill on Trus- tees, 157, and authorities cited; Slocum v. Marshall, 2 Wash. C. C. R., 397; Taylor v. Taylor, 8 How. U. S., 183. " See Jenkins v. Pye, ut supra; Story's Eq., sec. 308, 309. ' Archer v. Hudson, 7 Beavan, 551; see Maitland ». Irving, 15 Sim., 437; also Maitland v. Buckhouse, 16 Sim., 68. * Sears v. Shafer, 2 Seld., 268; Boney v. Hollingsworth, 23 Alab., 690; Hewitt V. Crane, Halst. Ch. R., 159. 134 CONSTRUCTIVE TRUSTS IN CASES OF 2. Guardian and Ward. The relation existing between guardian and ward is such, that the principles of a sound public policy require a close and rigid supervision on the part of courts of equity, of all gifts or conveyances to the guardian by his ward, on coming of age. The case is much stronger for relief, than is that of parent and child ; because the guardian is not supposed to be under the influence of that affection for his ward, which the parent has for his child; and, conse- quently, has not that check upon his selfish feelings. The court acts upon the broad principle of public utility, for the purpose of discouraging all such transactions; and will relieve against them, al- though in the particular instance, there be no actual unfairness or imposition.^ Courts watch with so much jealousy, transactions of this character, Lord Eldon observed, that when the connection is not dissolved, the account not settled, and everything remaining pressing upon the mind of the party under the care of the guardian, it was almost impossible that the transaction should stand.^ And the guardian will not be discharged from his responsibility as guardian, immediately on ^ Pierce v. Waring, cited 1 Ves.,380, and 2 Ves.,548; Hylton v. Hylton, 2 Ves., 547; Hatch v. Hatch, 9 Ves., 297; Dawson v. Murray,! Ball & B., 229; Aylward v. Kearney, 2 Ball & B., 463; Wood v. Downes, 18 Ves., 126; Hunter v. Atkins, 3 M. & K., 135; Johnson v. Johdson, 5 Alab., 90; Somes V. Skinner, 16 Mass., 348; Scott v. Freeland, 7 Sm. & M., 410; Williams v. Powell, 1 Ired. Eq., 460; Caplinger v. Stokes, Meigs, (Tenn.,) 175; Wyman v. Hooper, 2 Gray, 141. " Hatch V. Hatch, 9 Ves., 296; Gary v. Mansfield, 1 Ves., 379; Wright V. Proud, 13 Ves., 138; 1 Mad. Ch. R., 172; Story's Eq., sec. 320; Wood r. Downes, 18 Ves., 126. ACTUAL AND CONSTRUCTIVE FRAUD. 135 his ward's arriving at full age/ but time will be given to allow the ward an opportunity to investi- gate the accounts of the guardian. Lord Hardwick, in the case of Hylton v. Hylton,^ said " Where a man acts as guardian, or trustee in the nature of a guardian, for an infant, the court is extremely watchful, to prevent that person from taking any advantage immediately upon his ward coming of age, and at the time of settling accounts or deliver- ing up the trust, because undue advantage may be taken."^ It would give an opportunity, either by flattery or force, by good usage unfairly meant, or by bad usage imposed, to take such an advantage ; and, therefore, the principles of the court are of the same nature with relief in this court on the head of public utility, as in bonds obtained from young heirs, rewards given to an attorney pending a cause, and marriage brokage bonds. All depends upon public utility : and, therefore the court will not suf- fer it, though perhaps in a particular instance, there may not be actual unfairness. The rule of the court as to guardians is extremely strict, and in some cases, does infer some hardship : as where there has been a great deal of trouble, and he has acted fairly and honestly, and yet he shall have no allowance. Judge Willard, in his Equity Jurisprudence'^ re- marks, that the great jealousy with which courts ' AVillard's Eq., 182; in matter of Home, 7 Paige, 46. ^2 Ves., 547. ^ Boyett V. Hurst, 1 Jones Eq., 166; Heard v. Daniel, 2G Miss., (4 Cush.,) 451; Overton v. Beavers, 19 Ark., 623. * Willard's Eq., 185. 136 CONSTRUCTIVE TRUSTS IN CASES OF watch the dealings between guardian and ward on the termination of that relationship, is owing to the fact that the mind of the ward might be misled by undue kindness or forced by oppression, to make a gift. And whether it was granted under either of these influences, or was an act of rational conside- ration, could never be fully known to the court. To allow such gifts to stand, would increase the dif- ficulty of getting property from the hands of the guardian. That under the rule, as settled by the courts, there is no inducement to withhold a settle- ment to extort a gratuity.^ Neither can he pur- chase for himself where his ward is concerned.^ 3. Attorney and Client. The relation of attorney and client is one which is quite liable to abuse. The great confidence which the client has in the advice and skill of his attorney gives the attorney a very strong influence over his actions. The superior legal knowledge of the soli- citor, and the intimate knowledge he has of his client's situation, together with the confidence of the client, which he possesses, put it in his power to avail himself of his client's necessities, liberality, and credulity, to obtain for himself great advantages ; hence the law watches over the transactions between parties in this relation, with great jealousy.^ ^ See preceding note. " Bostwick V. Atkins, 3 Comst., 53; Wyman v. Hooper, 2 Gray, 141; Worrell's App., 11 Harris, (23 P. St. R.,) 44. ' See Wood v. Downes, 18 Ves., 126; Hunter r. Atkins, 3 M.& K.,113; Gibson v. Jayes, 6 Ves., 277; Wright v. Proud, 15 Ves., 138; Hatch v. Hatch, 9 Ves., 296; Jennings v. McConnel, 17 111., 148; Wilson v. Moran, ACTUAL AND CONSTRUCTIVE TRAUD. IS*?" Lord Brougham in the case of Hunter v. Atkins/ declared the rule to be " that if a person, standing in the relation of attorney to client, guardian to ward, trustee to cestui que trust, takes a gift or makes a bargain, the proof lies upon him to show that he has dealt with the other party, the client, ward, etc., exactly as a stranger would have done, taking no advantage of his influence or knowledge, putting the other party on his guard, bringing every thing to his knowledge which he himself knew, in short, the rule rightly considered, is, that the person stand- ing in such relation, must, before he can take a gift, or°even enter into a transaction, place himself ex- actly in the same position as a stranger would have been in, so that he may gain no advantage whatever from his relation to the other party beyond what may be the natural and unavoidable consequence of kindness arising out of that relation." ^ Justice Story says,^ "The burden of establishing the perfect fairness, adequacy and equity of the transaction, is thrown upon the attorney, upon the 3 Barb 172; Wallis .. Labat, 2 Denio, 607; Starr v. Vanderhyden, 9 IL, 253; Ford .. Harrington, 16 N. Y. Rep 285; Giddins. . Eas man 5 Paige Ch., 561; Evans .. Ellis, 5 Denio, 640; Barnard .. Hunter, 39 Eng. "^^TM^'&KtCm; see Hooper .. Burnett, 26 Miss.,428; Scoby .Ross, 5Ind.,445; Holxnan .. Loynes, 27 ^ng- L- and Eq. Rep^lbS; S - Vanderhyden, 9 Johns., 253; Lewis t,. J. A., 4 Edw., 599; Gidd.ngs t. IZmJ, 5 Paige, 561; Evans .. Ellis, 5 Denio, 640; Ellis . Messerole, 11 Paige, 467; Wilson v. Moran, 3 Brad., 1/2. « Eq. Jurisprudence, sec. 311; see also Montesquieu ..Sandys, 18 Ves 302; Cane ..Ld. Allen, 2 Dow., 289; see 6 Ves., 278; S"S^- ^J-^. and Purch., vol. HL, p. 238, 10th ed.; Howell v. Ransom, U Paige, 538, Ford V. Harrington, 2 Smith, 285. 138 CONSTRUCTIVE TRUSTS IN CASES OF general rule, that he who bargains in a matter of advantage, with a person placing confidence in him, is bound to show that a reasonable use has been made of that confidence/ In cases of this kind, seeking relief, the nature of the proof required by the court must depend upon the circumstances of each particular case, according as they may have placed the attorney in a position in which his duties and his pecuniary interests were conflicting, or which may have given him a knowledge which his client did not possess, or some influence, ascendancy, or advantage over his client.'^ This doctrine of the relation of attorney to client is not limited to those cases where their contracts or transactions respect the rights of property in controversy, in respect to which the attorney or solicitor is advising or acting, but it may, according to the circumstances, extend to other contracts, transactions, etc., where there is reason to presume the attorney possessed some special influence, ascen- dancy or advantage over his client.^ An examination of the authorities shows the doctrine to be as above stated; that, before the court will support a gift to an attorney, or a pur- chase by him from his client, it must be fully satis- fied that the transaction is unafiected by fraud of ' See preceding note. * Edwards v. Meyrick, 2 Hare R., 60, 68; Hunter v. Atkins, 3 M. & K., 135, 136; Merritt v. Lambert, 10 Paige, 352; Wallis v. Loubat, 2 Denio, 607; Howell v. Ransom, 11 Paige, 538; Lewis v. J. A., 4 Edw., 599; Ford V. Harrington, 16 N. Y. Rep., 285. ' Story's Eq., sec 310; Holman v. Loynes, 23 L. J. Ch., 530; see Wood V. Downes, 18 Ves., 127, also Bellow v. Russel, 1 B. & Beat., 104. ACTUAL AND CONSTRUCTIVE FRAUD. 139 any description, actual or constructive, and the bur- den of establishing its perfect fairness, adequacy and propriety rests with the attorney/ Therefore if such proof cannot be given the case will be treated as one of constructive fraud, and a construc- tive trust will be raised in favor of the client.^ In the case of Henry v. Raiman,^ the Supreme Court of Pennsylvania held that an attorney is not only prohibited from acquiring any interest in pro- perty, about the title to which he has been profes- sionally consulted, or in regard to which he has conducted a suit ; but that this prohibition does not terminate with the relation of counsel and client, but is perpetual in its character, and follows the title of the client into whosesoever hands it may pass, so that any purchase of adverse claims, incum- brances or the like, by the attorney, will be in trust for the holder of that title.* It has also been held in Louisiana that the attorney for the plaintiff, on the recovery of a judgment which was a lien on land, could not buy it in, on sale thereof on execu- tion, against his client.' The rule applying to ' Hill on Trustees, 160, also Harris v. Tremenhene, 15 Ves., 34; Cane v. Ld. Allen, 2 Dow., 289; Montesquieu v. Sandys, 18 Ves., 302; Billow v. Russel, 1 Ball & B., 104; Hawley v. Cramer, 4 Cow., 717; Evans v. Ellis, 5Denio, 640. » Holman v. Loynes, 23 L. .T. Ch., 530; Wilson v. Moran, 3 Brad., 1/2; Ford V. Harrington, 16 N. Y. Rep., 285. »25Penn. St. R., 354. , . r. <, * See Wood v. Downes, 18 Ves., 127; also Billow v. Russel, 1 B- & Beat., 104. ' Stockton V. Ford, 11 How. U. S., 232; see Oldham v. Hand, 2 Ves., 259; Hall v. Hallett, 1 Cox, 134; Leisenring «. Black, 5 W., 303; Bank v. Foster, 8 W., 305; Devinley v. Norris, 8 W., 314; Dobbins v. Stevens, 17 S. 8tR.,13. 140 CONSTRUCTIVE TRUSTS IN CASES OF attorneys also applies to the managing clerk in the solicitor's office, who has, in that capacity acquired the confidence of the client, and who deals with him in a matter with which he became acquainted as clerk/ And also to one who acts as confidential adviser before a magistrate where attorneys do not appear.^ It is the general policy of courts of justice to protect suitors from any undue influence or advan- tage the attorney or solicitor may have over them ; therefore they will look carefully into all transac- tions between them, for the purjDose of protecting the client's interests. Thus, where a bond has been obtained by an attorney from a client who is in poor and distressed circumstances, unless it appear to be for a full and fair consideration, it will be set aside as constructively fraudulent.^ Or where the attorney has taken from his client a bond for a cer- tain sum, it will not be allowed to stand as a secu- rity, except for the amount of fees and charges due to the attorney.* 4. Principal and Steward. Similar to the doctrine relating to gifts and pur- chases, between attorney and client, is also the doctrine with respect to gifts and sales by the prin- cipal to his steward or agent. The steward having * Poillon V. Martin, 1 Sandf. Ch., 569. « Buffalow V. Buffalow, 2 Dev. & Batt. Eq., 241. * Proof T). Hines, Cas. T. Talb., Ill; Warmesley v. Booth, 2 Atk., 29. * Newman v. Payne, 4 Bro. Ch. R., 350; S. C, 2 Ves. Jr., 200; Lang- staffe, V. Taylor, 14 Ves., 262; Pitcher v. Rigby, 9 Price R., 79; Jones v. Roberts, 9 Beav. R., 419; Story's Eq., sec. 312, 313, and authorities cited. ACTUAL AND CONSTRUCTIVE FRAUD. 141 charge of the principal's property to the extent of his stewardship, is presumed to be acquainted with its character and value, and the principal depends upon the judgment and fidelity of the steward for his knowledge thereof; therefore the steward is bound to make out a case of the utmost fidelity on his part, if he would have a gift or a sale from his principal to himself sustained. In the case of Lord Selsey v. Rhoads,^ the law was thus clearly stated by Sir John Leach, V. C. : " There is no rule of policy which prevents a steward from being a lessee under his employer. There is no rule of policy which prevents a steward from receiving from the bounty of his employer a beneficial lease. But where the transaction proceeds not upon mo- tives of bounty but upon contract, there the stew- ard is bound to make out that he gives the full con- sideration, which it would have been his duty as steward, to obtain from a stranger; and where the transaction is mixed with motives of bounty, there the steward is bound to make out that the employer was fully informed of every circumstance respect- ing the property which was within his knowledge, or ought to have been, which could tend to demon- strate the value of the property, and the precise measure and extent of the bounty of the employer. This doctrine may be considered as comprised in the general maxim, that a steward dealing with his employer shall derive no advantage from his situa- tion as steward. The employer may, if he please, '2S. &S.,49, 50; S. C. 1 Bligh, 1. 142 CONSTRUCTIVE TRUSTS IN CASES OF treat with his steward preferably to any other per- son; and this preference is a bounty. But the steward cannot take advantage of this preference unless he fully imparts to his employer all the cir- cumstances of existing competition."^ The relation of the steward to his employer, dif- fers nothing from that of agent to principal, for the steward, in matters pertaining to his stewardship, is the agent of the principal, and is bound to act for the interest of his employer ; therefore the law as applicable to agents dealing with their princi- pals, will further illustrate the duties of the stew- ard in dealing with his employer. 5. Principal and Agent, When the principal contracts for the services of his agent, he contracts for the aid and benefit of all his skill and judgment in the transaction of busi- ness committed to his care. It is to be presumed the principal employed him, and entrusted his business to his care, because of his esteemed skill and fidelity ; and the habitual confidence reposed in the agent, causes his acts and statements to pos- sess a commanding influence over his principal.'^ Therefore, it is in accordance with a sound public policy, that gifts procured, or purchases made by agents from their principals, should be examined with a most rigorous scrutiny. In all cases of pur- chases by agents from their principals, there is a * See preceding note. " Story's Eq., sec. 315; see also Reed v. Warner, 5 Paige, 650. ACTUAL AND CONSTRUCTIVE FRAUD. 143 necessary conflict between interest and duty ; which condition of things is unfavorable to integrity and fair dealing. It is a rule in equity of universal ap- plication, that no person can be permitted to pur- chase an interest in property where he has a duty to perform which is inconsistent with the character of purchaser.^ This rule is applicable to all classes of persons standing in fiduciary relations, or rela- tions of confidence. This rule was well stated by the judge who delivered the opinion of the Supreme Court of the United States, in the case of Michoud V Girod.^ " The general rule stands upon our great moral obligation to refrain from placing ourselves in relations which ordinarily excite a conflict be- tween self-interest and integrity. It restrains all agents, public and private ; but the value of the prohibition is most felt, and its application is more frequent, in the private relations in which the vendor and purchaser may stand to each other. The disability to purchase, is a consequence of that relation between them which imposes on the one a duty to protect the interests of the other ; fVom the faithful discharge of which duty his own personal ' Torrey v. Bank of Orleans, 9 Paige, 663; Hawley v. Cramer, 4 Cowen, 736; Van Epps v. Van Epps, 9 Paige, 237, 241; Cram v. Mitchel, 1 Sandf. Ch. R., 251; Dobson v. Racey, 3 Id., 61; Shannon v. Marmaduke, 14 Texas 217. M How. S. C, 503; Wormley v. Wormley, 8 Wheat., 421; Provost v. Gratz, 6 Wheat., 481 ; Shannon i;. Marmaduke, 14 Texas, 217 ; see Swofford r. Gray, 8 Ind., 508; Meeker v. York, 13 La. An., 18; Moore v. Moore, 1 Seld., 256; Utica Ins. Co. v. Toledo Ins. Co., 17 Barb., 132; N. Y. Cent. Ins. Co. V. Nat. Prot. Ins. Co., 4 Kern., 85, and 20 Barb., 468; Watkins V. Cousall, 1 E. D. Smith, 65; Vanderpool v. Kearnes, 2 E. D. Smith, 170; Dunlop v. Richards, 2 E. D. Smith, 181. 144 CONSTRUCTIVE TRUSTS IN CASES OF interests may withdraw him. In this conflict of interest the law wisely interferes. It acts on the possibility that, in some cases, the sense of that duty may prevail over motives of self-interest; but it provides against the probability, in many cases, and the danger in all cases, that the dictates of self- interest will exercise a predominating influence, and supersede those of duty. It therefore prohibits a party from purchasing that on his own account, which his duty or trust requires him to sell on account of another ; and from purchasing on account of another, that which he sells on his own account. In effect he is not allowed to unite the two opposite characters of buyer and seller, because his interests, when he is seller or buyer on his own account, are directly conflicting with those of the person on whose account he buys or sells." ^ This rule applies to guardians,^ trustees,^ solicitors and attorneys,"* to executors and administrators, and all others stand- ing in like confidential and fiduciary relations.^ Upon these principles, if the agent sell to his principal his own property, as the property of another, without disclosing the fact that the pro- perty is that of the agent, the bargain will be held * See preceding note. ' Pierce v. Waring, cited 1 Ves., 380, and 2 Ves.,548; Hylton v. Hylton, 2 Ves., 547; Hatch v. Hatch, 9 Ves., 297. ^ Home V. Meeres, 1 Vern., 465; AylifFe v. Murry, 2 Atk., 59. * Harris v. Tremenliene, 15 Ves., 34; Hill on Trustees, 160, and autho- rities cited. * Van Horn v. Fonda, 5 Johns. Ch., 388; Evertson v. Tappan, 5 Johns. Ch.,497; Davou v. Fanning, 2 Johns. Ch., 252; Case «. Able, 1 Paige, 393; Campbell v. Johnston, 1 Sandf. Ch., 148; AVard v. Smith, 3 Sandf. Ch., 592; Ames v. Downing, 1 Brad., 321; Stiles v. Burch, 5 Paige, 132. ACTUAL AND CONSTRUCTIVE FRAUD. 145 to be void, at the election of the principal.^ So also if the agent, employed to purchase for another, purchases for himself, he will be considered the trustee of his employer.^ So also, if an agent dis- cover a defect in the title of his principal to land* he can not misuse his discovery to acquire the title for himself, if he do, he will be held a trustee for his principal.^ Where likewise, an individual is employed as agent to purchase up a debt of his em- ployer he is bound to purchase it at as low a rate as possible ; if, therefore, he purchase it upon his own account, he will be deemed as acting for his princi- pal, and will be entitled to no more than he paid for it.* 6. Trustee and Cestui que Trust. The same doctine of constructive fraud, and con- sequent trust, applies to transactions between trus- tee and cestui que trust. A trustee may purchase from his beneficiary provided there is a distinct and definite contract, and one in which there is no fraud, no concealment of information acquired by him in his character as trustee, and no other advantage taken. But the contract must be such as will appear fair, after the most jealous examination.^ In cases ' Gillet V. Pepercorn, 3 Beavau, 78, 83, 84. ' See Story's Eq., sec. 316, and authorities quoted; Seis v. Nutall, 1 Russ. & M., 53; S. C, 1 Taralyn R., 282. ^ Rengo V. Binns, 10 Peters, 269. « See Reed v. Norris, 2 Mylne & Craig, 361, 374; Hitchcock v. Watson, 18 111., 289; Moore v. Moore, 1 Seld., 256. ' Coles V. Trecothick, 9 Ves., 234; Morse v. Royal, 12Ves., 372; Naylor r. Winch, 1 S. & St., 567; Lyon v. Lyon, 8 Ired. Eq., 201; Pennock's App., 14 Penn. St., 446; Bruch v. Lantz, 2 Rawle, 392; Harringtons. 10 146 CONSTRUCTIVE TRUSTS IN CASES OF where the trustee sells to himself, and thus combines the ch.aracter of vendor and purchaser, the sale is 'prima facie invalid. Lord Erskine held that all such sales or contracts were of themselves void, and that they were so, independent of all considerations of fraud, or looking beyond the relation of parties.* This decision would seem to be in accordance with the true policy of the law. But there are decisions which look to a relaxation of Lord Erskine's rule. Cases of such sales have been sustained where it was shown that the fiduciary relation of the pur- chaser had ceased previous to the purchase.^ So likewise in cases where the purchase was made with the full knowledge and consent of the beneficiaries, every thing being fair and honest connected with the transaction.^ So likewise where the cestui que trust has long acquiesced in the sale, he will ulti- mately loose his right to question the transaction.'* These and similar decisions show that the transac- tion is not necessarily void, but nevertheless it would not be sustained if unaided by other circumstances.^ Brown, 5 Pick., 519; Dunlap v. Mitchel, 10 Ohio, 117; Jenison r. Hapgood, 7 Pick., 1; Zimmerman v. Harmon, 4 Rich. Eq., 165; Jones v. Smith, 33 Miss., 215. ' Morse v. Royal, 12 Ves., 372; McConncll v. Gibson, 12 111., 128; Lewis V. Hillman, 3 H. L. Cas., 628; Chronister v. Bushey, 7 W. & S., 152. ' Ex parte Bennett, 10 Ves., 393; ex parte Lacey, 6 Ves., 626; Downes V. Grazebrook, 2 Mer., 208; see Ball v. Carew, 13 Pick., 28; De Bevoise v. Sandford, 1 Hoff. Ch., 192. ^ Downes v. Grazebrook, ut supra ; Randall v. Errington, 10 Ves., 428; Worthy v. Johnson, 8 Geo., 236. * Williams v. First Presb. Soc. in Cincinnati, 1 Ohio St. Rep., 478; Andrews v. Hobson, 23 Alab., 219; Campbell v. Walker, 5 Ves., 678; Powell r. Mm-ry, 10 Paige, 256, aflPg 2 Edw., 636; Jones v. Smith, 33 Miss., 215. * See Campbell v. Walker, ut supra. ACTUAL AND CONSTRUCTIVE FRAUD. 147 Where the purchase of the trustee from the bene- ficiary is questioned, and the trustee relies upon any corroborative circumstances to support his purchase, he must make them out beyond all question ; for the court will look into the transaction with great jeal- ousy, because it can never be certain that he has communicated to the cestui que trust all the informa- tion respecting the estate, which he has acquired as trustee ; and if it be known that he has not made such communication, the purchase will be set aside/ The incapacity of trustees to purchase from their cestuis que trust, proceeds upon the principle that the trustee is in a situation which gives him exclusive advantages in acquiring a knowledge, or informa- tion, respecting the property of the beneficiary ; and the policy of the law forbids that one in that situa- tion, should be under the temptation to sacrifice in- tegrity and violate the requirements of justice.^ The law, therefore, very wisely discountenances all transactions of that character. But, as a principle ceases to apply, where the reason for its application ceases, this principle does not apply to merely nomi- nal trustees, or as they are sometimes called, "dry trustees ;" those who, practically, have no interest or power as trustees with respect to the trust estate.^ As a general rule, the trustee cannot purchase the trust property at auction, without establishing every ' Ex parte Lacey, 6 Ves., 226; ex parte Bennett, 10 Ves., 394; Heme v. Meeres, 1 Vera., 465; Fox v. Mackreth, 2 Bro. C C, 400; Scott v. Davis, M. & Cr., 87; see Bolton v. Gardner, 3 Paige, 273; Stuart v. Kissam, 2 Barb., 493. * Baxter v. Costin, 1 Busb. Eq., 262. » Parker v. White, 11 Ves., 226; Naylor r. Winch, 1 S. & St., 567. 148 CONSTRUCTIVE TRUSTS IN CASES OF circumstance necessary to be made out to make the transaction good as a private sale/ But where the cestui que trust has taken upon himself the conduct of all the preliminary proceedings requisite for the sale : such as the surveys, the mode and conditions of sale, the plans, the choice of the auctioneer, and the like, and the trustee has not been in a situation to acquire any exclusive information respecting the property ; there is no good reason why the trustee, under such circumstances, should be excluded from becoming a purchaser ; and, consequently, courts have dealt with contracts made under such circum- stances, as though made between two indifferent persons.^ There is a doubt if courts will go any further in such cases, than to leave both parties without aid.^ Where trustees have purchased the property of the cestui que trust at public or private sale, they take the property subject to the right of the cestuis que trust to set aside the sale at their option.* But the cestui que trust must repudiate within a reasonable time, after information, or his right of repudiation will be gone.^ In case the trustee wishes to purchase any por- tion of the property of the cestui que trust during the ' Campbell v. Walker, 5 Ves., 678; Lister v. Lister, 6 Ves., 631; San- derson V. Walker, 13 Ves., 601; Beeson v. Beeson, 9 Barr., 279; Bostwick V. Atkins, 3 Comst., 53; Campbell v. Penn. Ins. Co., 2 Whart., 53; Att'y Gen. V. Lord Dudley, Coop., 146; Patton v. Thompson, 2 Jones Eq., 285. " Coles V. Trecothick, 9 Ves., 248; but see Monro v. Allaire, 2 Caine's Cas., 183; Salmon v. Cutts, 4 De G. & Sm., 131. * Monro v. Allaire, ut supra. * Mason v. Martin, 4 Md., 124; Andrews v. Hobson, 23 Alab., 219; Spindler v. Atkinson, 8 Md., 409. ' FoUansbe v. Kilbreth, 17 111., 522; Jones v. Smith, 3 Miss., 215. ACTUAL AND CONSTRUCTIVE FRAUD. 149 continuance of his fiduciary character, he should purchase it under the sanction of the court, or with the full concurrence of the cestui que trust ; and he must see to it, that there is no fraud and no conceal- ment of information from his beneficiary, which he has derived in his character as trustee ; and he must be prepared to make this appear should his transac- tion be questioned.^ 7. Executors and Administrators. It is upon the same principles as above stated that executors and administrators are prohibited from dealing with the estate of their testators or intestates. The reason for the rule is obvious. Where executors and administrators are permitted to purchase for themselves that property which it is made their duty to sell, they would violate that principle of public policy which prohibits the same individual to combine the character of vendor and purchaser. Generally, in the United States, they are prohibited from purchasing, directly or in- directly, their testator's estate.^ The application ' Campbell v. Walker, 5 Ves., 678; ex parte Lacey, 6 Ves., 625; ex parte Haines, 8 Vcs., 848; ea;j3arfc Bennett, 10 Ves., 393; Willard's Eq., 187; Fatten V. Thompson, 2 Jones Eq., 285. J ' Davone v. Fanning, 2 J. C R., 252; Michoud v. Girod, 4 How. U. S. R., 504; Drysdale's App., 14 Penn. S. R., 531; Bceson v. Bceson, 9 Barr., 279; Lessees of Moody v. Vandyke, 4 Binn., 31; Winter v. Geroe, 1 Halst. Ch., 319; Ward v. Smith, 3 Sandf. Ch., 592; Ames v. Browning, 1 Brad. (N. Y.,) 321; Roggers v. Roggers, 3 Wend., 503; Conway v. Green, 1 H. & J., 151; Hudson v. Hudson, 5 Mumf., 180; Bailey v. Robinson, 1 Gratt., 4; Edmunds v- Crenshaw, 1 McCord's Ch., 252; Baines v. McGee, 1 Sm. & M., 308; Brackenridge v. Holland, 2 Blackf., 377; Baxter v. Costin, 1 Busbee Eq., 262. 150 CONSTRUCTIVE TRUSTS IN CASES OF of the rule cannot be evaded by the intervention of a third person, purchasing for the executor. The reason of the rule continues, and therefore the rule continues.^ But where the sale was made in good faith to a stranger, without any previous understand- ing that the executor was to purchase, and the exe- cutor re-purchased from the stranger, the sale would be good.^ Executors and administrators who have the pro- perty of their testator in their hands, hold that property in trust for the payment of the debts and legacies, and for the application of the surplus ac- cording to the will of the testator, or according to the statute of distribution :^ and courts of equity proceed, in cases of this kind, as in the execution of trusts."* Hence the law applicable to trustees purchasing the property of their cestuis que trust, is likewise applicable to executors and administrators purchasing the property of their testator.^ There- fore they are not allowed to purchase up the debts of the estate upon their own account.^ » Beaubien v. Ponpard, Harr. Ch., 206; Woodruff ». Cook, 2 Edw. Ch., 259; Hawley v. Cramer, 4 Cow., 717; Davou v. Fanning, 2 J. C R., 252; Hunt V. Bass, 2 Dev. Eq., 292. " Silverthorn r. McKinster, 12 Penn. St. R., 67. ' Story's Eq., sec 532. * Adair v. Shaw, 1 Sch. & Lefr., 262; Farrington v. Knightley, 1 Pr. Wm.,548; Rathfield r. Careless, 1 Pr. Wm.,161; D. of Rutland u. Dutchess of Rutland, 2 Pr. Wm., 210, 211; Elliott v. Collier, 1 Ves., 16; Anon., 1 Atk., 491; Wind v. Jekyll, 2 P. Wm., 575; Nicholson v. Sherman, 1 Cas. Ch ,57; 1 Mad. Ch. Pr., 466. ^ Greenlaw v. King, 3 Beav., 49; Van Epps v. Van Epps, 9 Paige, 237; ex parte Lacey, 6 Ves., 628; ex parte James, 8 Ves., 346; Whatten v. Toone, 5 Mad.. 64; Watson v. Toone, 6 Mad., 153. • Story's Eq., sec. 321; Willard's Eq., 189, 604 to 606; Torrey r.Bank of Orleans, 9 Paige, 663; Hawley v, Cramer, 4 Cow., 736. ACTUAL AND CONSTRUCTIVE FRAUD. 151 The executor cannot protect his 'purchase of the property of his testator by the fact that he pur- chased at a sale made under an order of the court for the payment of debts, even though the order was not obtained by himself/ It has also been held that where a creditor had caused the testator's property to be sold on an execution, the executor could not become a purchaser at such sale ;'- but this doctrine has been controverted.^ There may be circumstances attending such a purchase which would bring the executor within the general rule ; and there may be circumstances where the rule would be excluded. The intention of the law is, in all cases, to exclude the possibility of fraud or want of fidelity on the part of the executor and admini- strator in the proper discharge of their duties. Where an executor unites with others in the pur- chase of the estate of the testator, such joint pur- chase makes the whole sale voidable." Such sales, however, are not absolutely void, unless there be actual fraud on the part of the purchaser,^ and may therefore be confirmed by the heirs and legatees ;* or by long acquiescence ; as long acquiescence or laches, in cases of fraud or mistake, is a bar to relief ' Rham v. North, 2 Yates, 117 j Bcason v. Beason, 9 Barr., 279. =■ Fleming v. Teran, 12 Geo. 394; Spindler v. Atkinson, 3 Maryl., 410. *Fisk V. Sarber, 6 W. & S., 18; Campbell v. Johnson, 1 Sandf. Ch., 148; Bank of Orleans v. Torrey, 7 Hill, 260. * Paul V. Squibb, 12 Penn. St., 296; Mitchum v. Mitchum, 3 Dana, 260. ^ Hudson V. Hudson, 5 Mumf., 180; Van Horn v. Fonda, 5 J. C R.,388. * Pennock's App., 14 Penn. St. R., 446; Bruch v. Lantz, 2 Rawle, 392; Dunlap V. Mitchel, 10 Ohio, 117; Longworth v. Goforth, Wright R., 192; Harrington v. Brown, 5 Pick., 519; Moor v. Hilton, 12 Leigh, 2. 152 CONSTRUCTIVE TRUSTS IN CASES OF in equity ; for it is one of the first principles of a court of equity that a party who seeks to establish a constructive trust in his favor, even on the ground of fraud, must use due activity and diligence in the prosecution of his claim ;^ accordingly it was laid down by Sir William Grant, M. R., in the case of Beckford v. Wade," that, though no time bars a di- rect trust as between cestui que trust and trustee, yet a constructive trust will be barred by long acquies- cence, although the ground of relief originally was clear and even arose in fraud. 8. General Cases. These same principles are applicable to all who stand in like fiduciary and confidential relations to each other ; for the like reasons, having their founda- tions in a sound public policy, must carry the rule with them. It is a rule which applies universally to all who come within the principle, which is, that no person shall be permitted to purchase an interest in property and hold it for his own benefit, when he has a duty to perform in relation to such property, which is inconsistent with the character of a pur- chaser on his own account, and for his individual use.^ Neither will a party be permitted to purchase from another party while standing in such relations thereto, as to be presumed to possess the unsuspect- * Smith «. Clay, 3 Bro. C C, 639; Hill on Trustees, 168. " 17 Ves., 97; Portlock v. Gardner, 1 Hare, 594, 607; Decouche v. Save- tir, 3 Johns. Ch. R., 190. ' Willard's Eq., 189; Van Epps v. Van Epps, 9 Paige, 241; Hawley v. Cramer, 4 Cow., 717 ; Brice v. Brice, 5 Barb., 533. ACTUAL AND CONSTRUCTIVE FRAUD. 153 ing confidence of, or controlling influence over the conduct and acts of the latter ; for where the reasons for the application of the rule exist, there the rule will be applied. Hence, when there are relations created between parties, arising from friendly habits, or habitual reliance on the advice and assistance, accompanied with partial employment, in doing some sort of business, an undue influence may exist and be exerted.^ Lord Brougham observed, in the case of Hunter v. Atkins,^ that the limits of natural and often unavoidable kindness, with its effects, and of undue influence exercised, or unfair advantage taken, could not be rigorously defined. That it was not advisable that any strict rule should be laid down, or any precise line drawn by stating that cer- tain acts should be the only tests of undue influence, or that certain things should be required in order to rebut the presumption of it. The circumstances of each particular case are to be examined and weighed, and on the result of such enquiry we are to deter- mine whether or not an undue influence has been exerted, or any undue advantage has been taken.^ Thus, when there has been a gift or sale to a confi- dential friend and adviser, or from a patient to his medical attendant, there may or may not have been undue influence exerted or advantage taken. The relation will authorize the court to look into the cir- cumstances, and if it shall appear that there has been any concealment, misrepresentation or con- trivance in procuring the gift or bargain, by which * See remarks of Lord Brougham in Hunter v. Atkins, 3 M. & K., 140. -l^'l CONSTRUCTIVE TRUSTS IN CASES OF a fraud is to be inferred., the court will interfere and grant relief/ The principle is a plain one, and one of easy application when the facts are clearly ascer- tained. Where property has been acquired impro- perly under such influences, a constructive trust will be raised in favor of the injured party, unless it has passed into the hands of those entitled to protection. Justice Story, in his Equity Jurisprudence,^ says: On the whole, the doctrine may be generally stated, that wherever confidence is reposed, and one party has it in his power, in a secret manner, for his own advantage, to sacrifice those interests which he is bound to protect, he will not be permitted to hold any such advantage." 3. Constructive Frauds which derive their Charac- ter Mainly from Unconscientiously compromit- ting or Injuriously affecting either the Private Rights, Interests or Duties of the Parties them- selves, OR operate substantially as Frauds upon the Private Rights, Interests, Duties, or Inten- tions OF Third Persons.^ 1. Mental weakness. And first of that class which affects the private rights, interests and duties of the parties them- selves. Under this class will be considered those ' Hunter v. Atkins, ut supra ; Pratt v. Barker, 1 Sim., 1 ; S. C, 4 Russel. 507; Huguenin v. Baseley, 14Ves.,273; Popham v. Brooke, 5 Russ., 8; Griffiths V. Robins, 3 Mad., 191; Dent v. Bennett, 7 Sim., 639; S. C, 4 M. & Cr., 269; Gibson v. Russell, 2 N. C. C, 104. » Story's Eq., sec. 323, also cites Jeremy on Eq. Jurisd., B. 3, part 2, chap. 3, sec. 2, p. 395. * Story's Eq., sec. 328. ACTUAL AND CONSTRUCTIVE FRAUD. 155 cases where an unconscientious advantage lias been taken of persons disabled by their mental state or other incapacity, from protecting their own inter- ests. The consent requisite to enable one to make a valid agreement is an act of reason, accompanied with deliberation, the mind weighing, as in a bal- ance, the good and evil on either side. Persons devoid of reason and understanding are incapable of giving a serious and firm assent. The rule as to what constitutes mental incapacity is the same in law as in equity.'' It is impossible to establish any standard of intellect as essential to legal capacity, beyond the unquestioned possession of reason in its lowest degree. The law, therefore, in fixing the standard of positive legal capacity or competency, says, that unless the mind betrays a total loss of understanding, or idiocy, or delusion, it cannot be considered legally unsound.^ From this, however, it is not to be inferred that courts give no heed to certain degrees of mental imbecility, which do not amount to absolute incompetency. On the contrary, when any considerable degree of mental imbecility appears, it induces a strict and vigilant ' Willard's Eq., 194; Story's Eq., sec. 231; 1 Fonbl. Eq., B. 1, chap. 2, sec. 3; Cook v. Clayworth, 18 Ves., 12; Reynolds v. Waller, 1 Wash. R., 207; Burk v. Allen, 9 Post., (N. H.,) 106. « Willard's Eq., 194; Bennett r. Vade, 2 Atkins, 327; Osmand v. Fitzroy, 3 P Wm 130. ' Willard's Eq., 201; Stewart's Executors v. Lispenard, 26 Wend., 303; Odell .. Bucks, 21 Wend., 142; Petrie .. Shoemaker, 24 Wend., 85; Blan chard .. Nestle, 3 Denio, 37; Gillespie v. Shuliberrier, 5 Jones Law R., 157; Van Deusen v. Rowley, 4 Seld., 358; Jackson v. King, 4 Cow., -0^ ; Clark V. Fisher, 1 Paige, 171 ; Gardner v. Gardner, 22 Wend., 526 ; ex parte Vanaukin, 2 Stoct., (N. J.,) 186. 156 CONSTRUCTIVE TRUSTS IN CASES OF examination into the contracts and other transac- tions of the party, laboring under it : and, if coupled with gross inadequacy of consideration, or other im- peaching circumstances, it will aid in constituting such evidence of fraud as may avoid the contract.^ Mere weakness of mind alone, not amounting to idiocy or insanity, is not sufficient of itself to in- validate an instrument.^ For it is impossible for the law to fix any standard short of the absence of all understanding ; and it is unnecessary that it should, so long as mental weakness becomes a cir- cumstance which the court will consider in deter- mining whether any fraud or imposition has been practiced. Where there is great disparity of intel- lect between the parties, the court will be more vigilant, and will give more weight to other circum- stances of a suspicious character ; but still they will consider the parties competent to contract.^ ' Willard's Eq., 202; Cruise v. Christophers' Administrators, 5 Dana, 182; Reinicker v. Smith, 2 Harr. and John., 422; see Ingraham v. Bald- win, 5 Seld., 45. " Ex parte Allen, 15 Mass., 58; Ripley v. Grant, 4 Ired. Eq., 447; Mann t). Betterly, 21 Verm., 326; Mason v. Williams, 3 Munf., 126; Morris r. McLeod, 2 Dev. and Bait. Eq., 221; Osmond v. Fitzroy, 3 P. Wm., 130; 1 Mad. Ch. Pr., 373; 1 Story's Eq., sec. 235; Person v. Warren, 14 Barb., 488. ' Hadley v. Latimer, 3 Yerg., 537; Thomas v. Shepherd, 2 McCord's Eq., 36; Harding v. Handy, 11 Wheat., 103; Deatby v. Murphy, 3 A. K. Marsh, 472; Whitehom v. Hines, 1 Munf., 557; Brogden v. Walker, 2 H. and J., 285; Whelan v. Whelan, 3 Cowen, 537; Ripley v. Grant, 4 Ired. Eq., 447; Rumph V. Abercrombie, 12 Alab., 64; Tracey v. Sackett, 1 Ohio St. N. S., 54; Hill on Trustees, p. 154, and authorities cited, as Bridgman v. Green, Wilm., 61; S. C, 2 Ves., 627, and Lord Thurlow's remarks in Griffin v. Deublue, 3 Woodleet's App., 16; Lord Dennegal's case, 2 Ves., 407; 1 Fonbl. Eq., B. 1, chap. 2, sec. 3, notes (p) and (r), 1 Mad. Ch. Pr., 375; 1 Story's Eq., sec. 236; Gartiside v. Sherwood, 1 Bro. C. C, 560; Black- ford V. Christian, 1 Knapp, 77. ACTUAL AND CONSTRUCTIVE FRAUD. l^' Therefore, while mental weakness of itself is not sufficient to invalidate an instrument, it is a circum- stance of great importance in determining the effect and influence of other circumstances, and where, connected with other circumstances of an impeaching character, will have great weight. Thus, where the provisions of a deed, executed by such a person, are unreasonable and extraordinary, the fact of mental weakness will be considered in con- nection therewith ;' or where the consideration is nugatory or insufficient ;' or where, contrary to the truth, the instrument is stated to be made for a pe- cuniary consideration f or where practicing and influence have been actually used ; or where the relation and situation is such that the same is to be presumed.'' It is immaterial from what cause this mental weakness may arise, or whether it be permanent or temporary. Such weakness may be natural or ac- cidental, as general mental imbecility, natural inca- pacity from infancy, infirmity from extreme old age, or weakness and depression incident to a cer- > Fane .. Duke of Devonshire, 2 Bro. P. C, 77-. Bridgman .. Green, 2 Ves., 627; Dent .. Bennett, 7 Sim., 539; S. C, 4 M. Sc Cr., 269; Sprague V. Duel, Clark, 90. ' Clarkson v. Hanway, 2 P. Wm., 203; Bridgman .. Green, 2 Ves., 62< , Gartside v. Isherwood, 1 B., C. C, 558; Hutchinson .. Tn.dall, 2 Green s Ch., 357; Rumph v. Abercrombie, 12 Alab., 64. = Gibson V. Russel, 2 N. C. C, 104. ^ . -r,^ r * Portington .. Eglinton, 2 Vern., 189; Gartside .. I^^f y««^' ^ ^^«,^^- C , 558; Bridgman v. Green, ut supra; Edmunds v. Bn-d, 1 V & B., 54^; Kennedy.. Kennedy, 2 Alab., 571; M'Craw v. Davis, 2 Ired. Eq 618; Buffalow .. ^uffalow, 2 Dw. & Batt., Eq., 241 ; Hill on Trustees, 155, and authorities. 158 CONSTRUCTIVE TRUSTS IN CASES OF tain state of physical health, or from sudden fears or overwhelming calamity. These and many other things may conspire to unfit the mind for the exer- cise of a sufficient degree of deliberation to enable it to give a valid assent to its undertakings. The fact that the party was mentally weak at the time, from whatever cause, is sufficient to put the court upon its guard, and if everything is not reasonable and fair connected with the transaction, fraud will be presumed.^ For the court may not relieve be- cause of the mental weakness alone, and will not; but if the least fraud can be shown in the party con- tracting with him, or that some undue means have been used to draw the party into the bargain, it will make out a case for relief.'^ The conclusion, there- fore, is that the acts and contracts of persons who are of weak understandings, and who are thereby liable to imposition, will be held void in courts of equity, if the nature of the act or contract justify the conclusion that the party has not exercised a deliberate judgment, but that he has been imposed upon, circumvented or overcome by cunning or ar- tifice, or undue influence.^ And where, upon an inquisition of lunacy, insanity is once found, its con- tinuance is presumed, and the burden of proof is ^ Story's Eq., sec 235; 1 Fonbl. Eq., B. 1, chap. 2, section 3, note (r) ; Blackford v. Christian, 1 Knapp's R., 73, 77; Clarkson v. Hanway, 2 P. Wm., 203; Gartside v. Isherwood, 1 Bro. Ch. R. appendix, 559, 560, 561; Osmond v. Fitzroy, 3 P. Wm., 130. "Willis V. Jarnegan, 2 Atk. R., 251; Story's Eq., sec. 236; Malin v. Malin, 2 Johns. Ch. R., 238; Shelford on Lunatics, chap. 6, sec. 3, p. 258, 207, 268, 272; White v. Small, 2 Ch. Cas., 103. ' Story's Eq., sec. 238. ACTUAL AND CONSTRUCTIVE FRAUD. 159 thrown upon those who would avail themselves of his acts, upon the ground that his disqualification has been removed ;^ although the maxim, " Once insane always insane," is not universally applica- ble,^ and the report of lunacy on an inquisition is only 'prima facie evidence, and not conclusive as to- third persons not parties.^ 2. Drunkenness. Excessive drunkenness is a temporary insanity ; consequently, while an individual is under the in- fluence of excessive drunkenness and utterly de- prived of his understanding, he is not a rational being, and is incapable of giving a valid assent to any undertaking. The fact that the party was under an undue excitement from liquor at the time he made the contract, is not of itself sufficient to invalidate it."* His drunkenness must have been of that degree which deprived him of the use of his reason and understanding, and thus have made him non compos at the time, before it, of itself, would be deemed sufficient to invalidate his agreements.^ ' > Terry v. Bufflngton, 11 Geo., 337. « Stewart v. Redditt, 3 Md., 67; Keys v. Norris, 6 Rich. Eq., 388. » Field V. Lucas, 21 Geo., 447. * Pittenger v. Pittenger, 2 Green Cli. R., 156; Crane r. Conklin, Saxton Ch. R., 346; Belclier v. Belcher, 10 Ycrger, 521; Jenncss v. Howard, 6 Blackf., 240; Hutchinson v. Tindel, 2 Green Ch., 357. " Story's Eq., sec. 231; 1 Fonbl. Eq., B. 1, chap. 2, sec. 3—; Cook v. Clayworth, 18 Ves., 12; Reynolds v. Waller, 1 Wash. R., 207; Pickett v. Sutter, 5 Cal., 412; Cummings v. Henry, 10 Ind., 109; Rutherford v. RufF, 4 Desaus' R., 350; Wade v. Colvert, 2 Rep. Court Ct., 27; Calloway y. Witherspoon, 5 Ired. Eq. R., 128; Peyton v. Rawlins, 1 Hayw., 77; Cole V. Robbins, Buller N. P., 172; Wigglesworth r. Steers, 1 Hen. & Mnf., 70. 160 CONSTRUCTIVE TRUSTS IN CASES OF The presumption is that every man is compos mentis until the contrary be provec. Therefore when an act is sought to be avoided on the ground of mental imbecility, the burden of proof is upon the one alleging it/ Where one would avoid a contract upon the ground of the intoxication of the party at the time it was made, he must prove that the party was entirely bereft of understanding at the time it was made, and that will be sufficient to avoid it/ This question was fully discussed and settled in the case of Barrett v. Buxton.^ It was there decided that an obligation, executed by a man when de- prived of the exercise of his understanding by in- toxication, was voidable by himself, though the intoxication was voluntary and not procured through the circumvention of the other party .^ Courts of equity, upon principles of public policy, are not inclined to lend their assistance to a person who has obtained an agreement or deed from an- other in a state of intoxication. For, whatever may be the demerit of the drunkard himself, the party who has taken advantage of his drunkenness, is entitled to no favor or protection for his immoral conduct.^ Neither are the court disposed to render ' 2 Kent's Com., 451 ; Pitt v. Smith, 3 Camp. R., 33; 1 Starkie's N. P. Rep., 126; Ring r. Harrington,.! Mills Const. Rep., 162; Foot v. Tewks- bm-y, 2 Verm. Rep,, 97; Prentice v. Achorn, 2 Paige R., 30; Borroiighs v. Richman, 1 Green's N. J. Rep., 233; Harbison v. Lemon, 3 Blackf. Ind. Rep., 51; Ilotchkiss v. Fortson, 7 Yerger, 67; Gore v. Gibson, 13 Meeson & WeLsby, 623; Gardner v. Gardner, 22 Wend., 526. » 2 Aikin's Vt. R., 167; see Hutchinson v. Tindal, 2 Green's N. J. Ch. K., 357. ' Story's Eq., sec. 231, 232, 233. ACTUAL AND CONSTRUCTIVE FRAUD. 161 assistance to the intoxicated party, to enable him to avoid his agreements. Unless there is some fraudu- lent contrivance or some imposition practiced, either actual or implied, they will be left to their ordinary remedies at law.^ But, while courts will not relieve a party upon the mere ground of undue excitement from liquor, or intoxication not amounting to an entire suspen- sion of the understanding, yet such intoxication may become an important consideration in deter- mining the significance of other circumstances tend- ing to show that fraud had been practiced. In New York, after an inquisition has been found under the statute, that a man is of unsound mind in consequence of habitual drunkenness, and is inca- pable of conducting his own affairs, it is held that he cannot legally do or assent to any act binding him, although in fact he was sober and competent to transact business at the time.^ And a purchase and conveyance of real estate, after proceedings are instituted to ascertain the incapacity of the grantor by reason of his habitual drunkenness, to transact business, will be set aside on proper application, provided the grantee had knowledge of the institu- tion of the proceedings at the time of purchase.^ 'Story's Eq., sec. 231; Cook v. Clayworth, 18 Ves. 12; Newland oa Contracts, chap. 22, p. 365; Rich v. Sydenham, 1 Ch. Cas., 202; Cragg v. Holme, 18 Ves., 14, note"; Shiers v. Higgons, cited 1 Madd. Ch. Pr., 399; Nagle V. Baylor. 2 Dr. & W., 64; Shaw v. Thackery, 1 Sm. & Gift'., 537. ^ Wadsworth v. Sherman, 14 Barb., 169; Wadsworth v. Sharpsteen, 4 Seld.,388. ^ Griswold v. Miller, 15 Barb. 520; IrahofT v. Witmer, 31 Penn. St. R., 341. 11 162 CONSTRUCTIVE TRUSTS IN CASES OF 3. Persons under Duress. Under the rule that the consent requisite to make a valid agreement is an act of reason, accompanied with deliberation ; and that every true consent im- plies, first, a physical power ; secondly, a moral power of consenting ; and thirdly, a serious and free use of them ; ^ one who is under duress, or under the influence of extreme terror, or threats, is to be pre- sumed incapable of giving a free and serious assent to a contract ; for in cases of this sort, he has no free will, but stands in vinculis ; and it is a constant rule in equity, that where a party is not a free agent, and equal to protecting himself, the court will protect him.^ On this account courts of equity watch with extreme jealousy all contracts made by a party while under imprisonment, and if there is the slightest ground to suspect oppression or impo- sition in such cases, they will set the contract aside .^ Formerly it was the doctrine that the duress must have been the illegal restraint of one's liberty, actually imposed, or through fear of mayhem, or loss of limb.'* But the modern doctrine is other- wise. Any duress by legal process or through fear, which, for the time being, deprives the party of the ' Willard's Eq., 194; 1 Fonbl. Eq., B. 1, chap. 2, sec. 1. * Story's Eq., sec. 239; Evans v. Llewellyn, 1 Cox R., 340; Crome v. Ballard, 1 Ves. Jr., 215, 220; Hawes v. Wyatt, 3 Bro. Ch. R., 158; Jeremy on Eq., B. 3, part 2, chap. 3, sec 1; 2 Eq. Abridg't, 183; Gilbt. Eq. R., 9; Tilley v. Damon, 11 Cush., 247. ' Story's Eq., sec. 239; Roy v. Duke of Beaufort, 2 Atk., 190; Nichols V. Nichols, 1 Atk., 409; Hinton v. Hinton, 2 Ves., 634-5; Falkner v. O'Brian, 2 B. & Beatt, 214; Griffith v. Spratley, 1 Cox Rep., 333; Under- hill V. Ilarwood, 10 Ves., 219; Att'y Gen. v. Southern, 2 Vern. R., 497. * 1 Black. Com., 133, 139. ACTUAL AND CONSTRUCTIVE FRAUD. 163 free use of his will or consent, will be sufficient to entitle him to relief, provided advantage has been taken of such duress.^ Thus, circumstances of ex- treme necessity and distress of the party may so entirely overcome his free agency as to justify the court in setting aside a contract made by him, on account of some oppression or fraudulent advantage or imposition attendant upon it,^ for where advan- tage is taken of a person's extreme necessity or dis- tress to obtain an advantageous bargain, the court will give redress.^ The doctrine of the common law upon the subject of avoiding contracts upon the ground of force, du- ress or undue influence, has been very much modi- fied by modern decisions, and very properly so. The doctrine that the force or fear must be of such a nature as may well overcome a firm man is un- reasonable. The doctrine of granting relief, when the contract has been obtained through duress by force or fear, has its basis in the hypothesis that the free will of the party has been destroyed, and con- sequently that the contract is not an expression of his free and deliberate assent. It is therefore un- reasonable to subject a timid man to such a rule, for 'Story's Eq., sec. 239; Gould v. Okeden, 3 Bro. Pari. R., 560; Bosan- quet V. Dashwood, Cas. Temp. Talbot, 37; Proof v. Hincs, Cas. T, Talb., Ill; Hawes v. Wyatt, 3 Bro. Ch. R., 156; Picket v. Logan, 14 Ves., 215; Foshay v. Ferguson, 5 Hill, 154; Thompson v. Lockwood, 15 J. R., 256; Champlain v. People, 2 Comst., 83; Evans v. Begleys, 2 Wend., 243; Wak- kins V. Baird, 6 Mass. R., 506; Richardson v. Duncan, 3 N. II., 508; see Neally v. Greenough, 5 Foster, 325. ' Hawes v. Wyatt, ut supra; Wood v. Abrey, 3 Mad., 417; Crawford v. Cato. 22 Geo., 594. 164 CONSTRUCTIVE TRUSTS IN CASES OF the same degree of force or intimidation which would produce little or no influence upon a " firm man," might entirely overcome a timid one, and place him in the power of his oppressor. The modern rule is the more reasonable, and more in accordance with the principles of an advancing civilization.^ 4. Common Sailors. This class of men are notoriously improvident and heedless in taking care of their money or other property, and seem to require the provident guard- ianship of the law during the whole course of their lives. They possess a strange mixture of character, credulous, generous, kind, heedless and brave. Such being their known character, courts of equity have been disposed to take an indulgent consideration of their interests, and to treat them as a class, in the same light with which young heirs and expectants are regarded.^ They are frequently the victims of a cunning and vigilant class of knavish men who are on the alert to take advantage of their heedless- ness, extravagance and generosity. They, as a class, are not equal to taking care of their own interests. Hence, their contracts respecting their wages, prize money, etc., are watched with great jealousy ; and * Soule V. Bonney, 37 Maine, 128; Taylor v. Cottrell, 16 111., 93; Brown r. Peck, 2 Wis., 261; Strong v. Grannis, 26 Barb., 122; Barr v. Barton, 18 Ark., 214; Barblet v. Wyman, 14 Johns., 260; Champlain v. People, 2 Comst., 83; Harmony v. Bingham, 1 Duer, 209; aff'd 2 Kern., 99. ' Story's Eq., sec. 332; Hugucnin v. Basley, 14 Ves., 271; Davis v. Duke of M., 2 Swanst, 147, note (a) ; Jeremy Eq., B. 2, part 2, chap. 3, sec. 4; Thornhill v. Evans, 2 Atk R., 830; Howe v. Weldon, 2 Ves., 516; Fonbl. Eq., B. 1, chap. 2, sec. 12, note (fe). ACTUAL AND CONSTRUCTIVE FRAUD. 1^0 where any undue advantage has been taken of them or great inequality appears in their bargains, they are generally relievable/ 5. Young Heirs ; Reversioners ; Remaindermen, etc. It is a rule in equity, that persons in contracting with each other, shall not only act in good faith between themselves, but shall not act in bad faith in respect to others who stand in such relations to either of the parties as to be affected by their con- tracts or by the consequences of them.^ Of such a character are those catching bargains or unconscion- able purchases made from young heirs in the life- time of their parents, by persons other than those standing in loco parentis. As a matter of public policy, courts have extended to them such a degree of protection as almost to amount to an incapacity in young heirs to bind themselves by any contract respecting their expectancy.^ The professed object of the rule, giving such protection to the expectant heir, is to restrain the anticipation of expectancies, which must, from its nature, furnish designing men an opportunity of practicing upon the inexperience ' Story's Eq., sec. 332, note (3), refers to Parsons on Contracts, where the authorities are collected, 1 Vol. Contracts with Seamen; How v. We\- don, 2 Vcs., 517. ' Chesterfield v. Jansen, 2 Ves., 156, 157; Story's Eq., sec. 333; Hill ou Trustees, 153; Willard's Eq., 178; Story's Eq., sec. 334. ' Willard's Eq., 178; Story's Eq., sec. 336; Hill on Trustees, 153; Gwy- none v. Heaton, 1 Bro. Ch. R., 1, 9; Peacock v. Evans, 16 Ves., 512; Knott V. Hill, 1 Vern., 167; Earl of Portmore v. Taylor, 4 Sims, 182; King v. Hamlet, 4 Sim., 223, and S. C, 2 M. & K., 456; Newton v. Hunt, 5 Sim., 54; Jenkins v. Pye, 12 Peters, 241; Varick v. Edwards, 1 Hofif. Ch., 383; Davidson v. Little, 22 Peun. St., 252 166 CONSTRUCTIVE TRUSTS IN CASES OF or passions of a dissipated man.^ In the language of Justice Story :'^ "The relief is founded in part in the policy of maintaining quasi parental authority, and preventing the waste of family es- tates. It is also founded in part upon an enlarged equity, flowing from the principles of natural jus- tice; upon the equity of protecting heedless and necessitous persons against the designs of that cal- culating rapacity which the law constantly dis- countenances; of succoring the distress frequently incident to the owners of unprofitable reversions ; and of guarding against the improvidence with which men are commonly disposed to sacrifice the future to the present, especially when young, rash and dissolute." Although the degree of protection extended to young heirs is such as to render all contracts with them respecting their expectancy very insecure, yet it is not to be inferred that such contracts may not be binding. An expectancy may be sold, provided it be fairly done ; but it is the duty of the vendee to show that it is so done. Every presumption is against it.^ The vendee must, therefore, make good the bargain ; and show that the transaction was per- fectly fair in every respect, and untainted with ac- ' Willard's Eq., 178. * Story's Eq., sec. 335; see Davis v. Duke of Marlborough, 2 Swanston, 147, and Reporter's note; Twistleton v. Griffith, 1 P. Wm., 310; Cole v. Gibbons, 1 P. Wm., 293; Baugh v. Price, 1 Wils. R., 320; Barnardiston v. Lingwood, 2 Atk., 135; Bowes v. Heaps, 3 Ves. & B., 117, 119, 120; Wal- mesley v. Booth, 2 Atk., 27, 28; Mad. Ch. Pr., 97, 98, 99. ^ Coles V. Trecothick, 9 Ves., 246; Gowland v. De Faria, 17 Ves. 25; Willard's Eq., 178; Story's Eq , sec, 336. ACTUAL AXD CONSTRUCTIVE FRAUD. 167 tual or constructive fraud; and, particularly, that the consideration paid was adequate.^ Inadequacy of consideration between persons standing upon an equality of condition is not regarded as a cause for equitable interposition, unless, from its grossness, it evinces fraud.^ But it is otherwise in case of expec- tant heirs.^ The law in these cases, acting upon the hypothe- sis that advantage has been taken of the necessities of the young heir, and that there is an implied fraud upon the ancestor, who is ignorant of the transac- tion, and who has been seduced to leave his estate, not to his heir or family, but to a set of artful per- sons who have divided the spoil beforehand,* does not apply to that class of cases where the heir has subsequently recognized the transaction, and acted upon it ; ^ neither does it apply where the sale was effected with the knowledge and sanction of the parent, or the one from whom the expectancy is to come.^ As the rule, in part, is aimed at preventing the practice of deceit and imposition upon the pa- rent or other ancestor, from whom the expectancy ' Hill on Trustees, p. 153; Knott v. Hill, 1 Verm., 167; Chesterfield v. Jansen, 2 Ves., 125; Peacock v. Evens, 16 Ves., 512; see Jenkins v. Pye, 12 Peters, 241. ^ See Willis v. Jernegan, 2 Atk., 251; Gwynne v. Heaton, 1 Bro. C. C, 8; Heithcote v. Paignon, 2 Bro. C. C, 175, Underliill v. Horwood, 10 Ves., 219; Ware v. Horwood, 14 Ves., 28. 'Peacock v. Evans, 16 Ves., 517; Gowland v. De Faria, 17 Ves., 23; Story's Eq., sec. 336. * Lord Hardwick, in Chesterfield v. Jansen, 2 Ves., 157; also, Earl of Aldoborough v. Frye, 7 Clark & Fin., 436. * Chesterfield v. Jansen, ut supra, King v. Hamlet, 2 M. & K., 480, 456. 168 CONSTRUCTIVE TRUSTS IN CASES OF is to come, the age of the heir expectant is not ma- terial/ Story, in his Equity Jurisprudence, says:^ "The whole doctrine of equity, with respect to expectant heirs, reversioners, and others in like predicament, assumes that the one party is defenceless, and is ex- posed to the demands of the other under the pres- sure of necessity. It assumes, also, that there is a direct or implied fraud upon the par-ent or other an- cestor, who, from ignorance of the transaction, is misled into a false confidence in the disposition of his property. Hence, it should seem that one ma- terial qualification of the doctrine is the existence of such ignorance" on the part of such parent or ancestor. " The other qualification of the doctrine is not less important. The contract must be made under the pressure of some necessity : for the main ground of the doctrine is the pressure upon the heir, or the distress of the party dealing with his expec- tancies, who is therefore under strong temptations to make undue sacrifices of his future interests." ^ The presumption seems to be stronger in favor of young heirs than it is of reversioners, remainder- men, etc. It is said that the authorities will not warrant a strict application of the foregoing rules to any class of reversioners except those who combine ' Evans v. Cheshire, Belt's Supp , 305; Addis v. Campbell, 4 Beav.,401; Davis V. Duke of Marlborough, 2 Wils.. 146; Ormond v. Fitzroy, 3 P. Wm., 131; Wiseman v. Beake, 2 Vern. R.. 121. ^ Story's Eq., sec. 339, note (2) ; see remarks of Lord Brougham, in the case of King v, Hamlet, 2 Mylne & Keen., 473, 474, and S. C, 4 Sim. R., 185. ACTUAL a:nd constructive fraud. 169 the character of heir.^ It will be found on exam- ination, that the principal difference consists in the proof required. If the reversioner or remainder- man or any other in like predicament, makes out by evidence what the court presumes in favor of the heir, he will be entitled to relief. Courts of equity are jealous of the rights of this class ; and extend to them an anxious protection. An examination of the cases will show that whenever it clearly ap- pears that advantage has been taken of the pressure of necessity, or when fraud has in any degree been practiced, relief will be granted.*^ The relief which equity grants in these cases is upon condition that the principal and interest be paid back by the heir or other, seeking relief; the defendant being considered as mortgagee. The plaintiff seeking equity must do equity by paying back what was lent. 2. WHEN THE acquisition OF THE LEGAL ESTATE IN PRO- perty is tainted with actual fraud. 1. When the Transaction is in Fraud of the Rights OF THE Parties thereto. In general, it will make no difference whether the deception, practiced upon a party by which he has 1 Hill on Trustees, 153. " Hill on Trustees, 153, and authorities cited, as Wiseman v. Beake, 2 Vern 121; Cole v. Gibbons, 3 P. Wm., 290; 1 Sugd. V. and P., 165; Barnadiston v. Lingwood, 2 Atk., 133; Bowers v. Haps, 3 V. and B 11< ; Davis V. Duke of Marlborough, 2 Sw., 140, note; Addis v. Campbell. 4 Beav., 401; Fonbl. Eq., B. 1, chap. 2, sec. 12, note (fc). • WiUard's Eq., 170; 1 Fonbl. Eq., B. 1, chap. 2, sec. 13. 170 ACTUAL FRAUD IN THE been induced to part with his property, is brought about by positive misrepresentation, or by a wilful conceahnent of the facts. The gist of the fraud is, that deception has been wilfully practiced by which a party has been defrauded of his legal rights/ When a party bargains to dispose of his property to another, he is supposed to act with a full knowledge of all the facts; and consequently to understand the situation in which he places himself, by the transaction. He is bound to act in good faith with respect to the rights of him with whom he bargains ; and he has a good right to expect good faith in return. If he possess any knowledge which the law deems essen- tial to a fair understanding of the transaction, and which it is to be presumed the other party, exer- cising ordinary prudence, diligence and sagacity, does not possess, fair dealing requires that he should make it known to the other party ; and if he fails to do so, he is presumed to have fraudu- lently intended it, and is deemed guilty of sup- pressing the truth — suppressio veri — for a fraudulent purpose, and equity punishes him by converting him into a trustee for the defrauded party, and will de- cree an execution of the trust, by ordering the in- strument to be cancelled, or property re-conveyed, and the party restored to his original rights.^ » Jarvis v. Duke, 1 Vern., 19; Broderick v. Broderick, 1 P. Wm., 239; Smith V. Richards, 13 Peters, 26; Torrey v. Buck, 1 Green's Ch., 366; Hoitt V. Holcomb, 3 Foster, 585; Wheaton v. Baker, 14 Barb., 694; Cray- ton V. Hunger, 9 Texas, 285. ^Story's Eq., sec 187; Middleton v. Middleton, 1 Jac. & Walk., 96; Lord Waltham's ca.se, cited 11 Ves., 638; 1 Fonbl. Eq., B. 1, chap. 2; 1 Mad. Ch. Pr., 348; Boyce v. Grundy. 3 Pet. U. S... 210; Lewis v. McLemore, 171 ACQUISITION OF PROPERTY. ^ ' -^ Actual fraud is where there is an intent to com- mit a cheat or deceit upon another, and includes all acts, omissions and concealments by which an undue and unconscientious advantage is taken of another. Thus, where a party has been entrapped into the execution of an instrument through a conspiracy, or where by surprise, oppression, or by any other means, he has been led to do that which, free from constraint, and with a full understanding, he would not have done, equity will interpose to give him relief.^ As the ground for relieving against fraud is, that the party has been misled and injured by it, it is therefore necessary that it should be made to appear to the court, that the misrepresentation was a mat- ter important to the interests of the other party, and that he was misled thereby. For if the misre- presentation was of something wholly immaterial, or which was as well known to the one party as to the other, or if it was a matter of opinion or fact, equally open to the inquiries of both parties, and, in respect to which, neither could be presumed to have trusted the other, there would be no cause for 10 Yerg., 206; Mitchel v. Timmerman, 4 Texas, 75; Spencer v. Duren, 3 Alab., 251; Pitts v. Cottingham, 9 Porter, 675; Tyler v. Black, 13 How. U. S.', 231; Franklin Bank v. Cooper, 39 Maine, 542; but see Harris v. Tyson, 24 Penn. S- R., 217; Webster v. Wise, 1 Paige, 319; Livingston v. Peru Iron Co., 2 Paige, 390; Veeder v. Fonda, 8 Paige, 94. > Story's Eq., sec. 187; 1 Fonbl. Eq., B. 1, chap. 2, sec. 3, note (r) ; Gale«. Gale, 19 Barbour, 251. ^ WiUan V. Willan. 16 Ves., 82; Howe v. Weldon, 2 Ves., 51^ ; Bridg- man r. Green, 2 Ves., 627; Neville v. Wilkinson, 1 Bro. C. C, 546; Mathew v. Hanbury, 2 Vern., 187. 172 ACTUAL FRAUD IN THE relief.^ But where the party intentionally misre- presents a material fact, and thus produces a false impression in order to mislead the other, that he may obtain an undue advantage of him, he is guilty of a positive fraud, and will not be allowed to retain the advantage thus obtained.^ And this misrepre- sentation may be by deeds or acts, as well as words. Artifices may mislead as well as positive assertions.' And it may be as much by suppressing the truth, which good faith requires to be stated, as by making false statements.'* And it is wholly immaterial whether the party thus misrepresenting a material fact by false statements knew it to be false or not, for he assumed to know when he made the affirma- tion, and thus was morally guilty ; and he shall make his assertions good, for it operates as an impo- sition on the other party .^ Pothier expounds this subject thus "As a matter of conscience any deviation from the most exact and scrupulous sincerity is repugnant to the good faith which ought to prevail in contracts. Any dissimu- ' story's Eq., sec. 191; 2 Kent's Com., sec. 39, p. 484; Neville r. Wil- kinson, 1 Bro. Ch. R., 546; Hough v. Richardson, 3 Story's R., 659; Atwood V. Small, 6 Clark & Finnell, 232, 395. » Laidlow v. Organ. 2 Wheat. R , 178, 195; Pidcock v. Bishop, 3 B. & Cressw., 605; Evans v. Bicknell, 6 Ves., 173, 182; The State v. HoUoway, 8 Blackf. , 45; Atwood v. Small, ut supra. ' 3 Black. Com., 165; 2 Kent's Com., sec. 39, p. 484, (2d ed). * Jarvis v. Duke, 1 Vern., 19; Broderick v. Broderick, 1 P. Wm., 239; Smith V. Richards, 13 Peters R., 26. ' Ainsle «. Mendlycott, 9 Ves., 21; Smith v. Mitchell, 6 Georgia R., 458; Hazzard v. Irwin, 18 Pick., 85; Hammat v. Emmerson, 27 Main, 308; Dagget V. Emerson, 3 Story C. C, 733; Foster v. Charles, 6 Biug. R., 396; S. C, 7 Bing., 105; Pearson v. Morgan, 2 Bro. Ch. R., 389; Burrows v. Locke, 10 Ves., 475. ACQUISITION OF PROPERTY. 173 lation concerning the object of the contract, and what the opposite party has an interest in know- ing, is contrary to that good faith, for since we are commanded to love our neighbor as ourselves, we are not permitted to conceal from him any thing which we should be unwilling to have concealed from ourselves under like circumstances. But in civil tribunals a person cannot be allowed to com- plain of trifling deviations from good faith in the party with whom he deals. Nothing but what is plainly injurious to good faith ought to be consider- ed as a fraud sufficient to impeach a contract.^ There are two methods of practicing deception amounting to fraud, in contracting with others. 1st. Suggestio falsi — by false statements, and 2d. Suppressio veri — by wilful concealments. 1. By False Statements of Material Facts, by which the Contracting Party is misled. But it is held that these false statements ex- tend to acts and artifices by which the other party is misled and entrapped.^ Thus, a will was defect- ively executed, and the devisee, for the purpose of procuring the heir to convey the devised estate to him for a small consideration, represented to the heir that the will was properly executed. This was held ' 1 Pothier on Oblig., by Evans, p. 19, note (30); Cod. Lib. 2, tit. 21, 1, 6; Story's Eq., sec. 194; see Jackson v. Crafts, 18 Johns., 110. * Story's Eq., sec. 192; Black. Com., 165; 2 Kent's Com., 39, Lecture, p. 484, (2d edit.); Chisholra v. Gadsden, 1 Strobh., 220; Chesterfield r. Jansen, 2 Ves., 155; see Chancellor Thurlow's remarks in case of Neville V. Wilkinson., 1 Bro. Ch. R., 546. 174 ACTUAL FRAUD IN THE to be a fraud upon the heir, and the conveyance was set aside/ An executor represented to a legatee that she had no legacy, and thereby procured a release from her; the release was set aside for fraud.^ Any false and fraudulent representations by which it shall appear that the party has been misled and injured, will be sufficient to vitiate the contract.^ And where the fraudulent representa- tion applies to only a part of the transaction, the party affected with the fraud cannot support the transaction as to the remaining part, for the fraud vitiates the whole contract.'* When the false state- ment is also connected with a gross suppression of the truth, it will take less of false affirmation to establish the fraud than where there had been no such suppression. In the case of Turner v. Harvey,^ Lord Eldon said, "that although the purchaser is not bound to give the vendor information as to the value of the property, yet if a single word be dropped which tends to mislead the vendor, that principle will not be allowed to operate.^ Where the party who has been guilty of fraudulent repre- sentation is the one who is seeking the aid of the court for the enforcement of the agreement thus ^ Broderick v. Broderick, 1 P. Wm., 239. * Jarvis v. Duke, 1 Vern., 19; see James v. Greaves, 2 P. Wm., 270; Horseley v. Chaloner, 2 Ves., 83. ' See Phillips v. Diike of Bucks. 1 Vern., 227; 1 Sug. V. & P., 211; Fellows V. Ld.Gwydyr, 1 Sim. 63; S. C, 1 R. & M., 83; Wilson v. Force, 6 Johns., 110. * Clermont v. Tasburgh, 1 I. &, W., 120; Wilson v. Force, 6 Johns., 110. » Jac. 178; Fox v. Macreth, 2 Bro. C. C, 420; 1 Sug. V. & P., 6; Hill on Trustees, 147. 1*7 fi ACQUISITION OF PROPERTY. -L ' ^ obtained, very slight proof of improper conduct will be sufficient for the court to refuse its aid/ But it is otherwise when the other party asks the court to interfere against the legal and equitable rights of a party claiming under a deed or other instrument. In such cases, a much stronger case must be made out. The facts and circumstances must be such as to leave no question of the fraud.^ The same general principles apply, whether the fraud was perpetrated by the party in interest or by an agent acting in his behalf, if the act be adopted by the principal.^ 2. Fraud perpetrated by the Suppression of the Truth by which a Party is misled and injured in his Rights and Interests. To entitle one to relief in such a case, the sup- pression of facts must be such as the one party under the circumstances is bound in duty and con- science to disclose to the other, and in respect to which he cannot innocently remain silent.'' Says Justice Story ,^ the true definition of an undue con- cealment which amounts to a fraud in a court of equity, and for which it will grant relief, is the > Hill on Trustees, 147. > William V. William, 16 Ves., 83; Cadman v. Homer, 18 Ves., 10, Mortlock V. Bailer, 10 Ves., 292. " Story's Eq.. sec. 193, a; Fitzsimmons v. Joslin, 21 Verm. K., 1-y. ^ Irvine .. Kirkpatrick, 3 Eng. L. & Eq. R., 17; Jusan r. Toulmin 9 Alab., 662; Story's Eq., sec. 204; 2 Kent's Comm., sec. 39, p. 490, (4th edit.) ; Parker v. Grant, 1 Johns. Ch. R., 630. ' Equity Jurisp., sec. 207; Fo.x v. Macrath, 2 Bro. Ch. R.. 420; Pearson V. Morgan, 2 Bro. Ch. R., 390; Flemraing v. Slocum, 18 Johns., 403. 176 ACTUAL FRAUD IN THE non-disclosure of those facts and circumstances which the party is under some legal and equitable obligation to communicate to the other, and which the latter has a right, not merely in foro conscientia, but juris de jure to know." ^ This definition is far from furnishing the means by which the legal and equitable obligation to disclose a fact, unknown to the other party, may be ascertained. There are many cases where the obligation to disclose is im- perative. Thus, if a vendor should sell an estate knowing that he had no title to it, or knowing that there were incumbrances on it of which the vendee was ignorant,'^ or where the vendor should sell a house situate in a distant town, which he knew to be burnt down, and of which fact the vendee was ignorant,^ or where a party negotiating for the pur- chase of a reversion after the determination of two estates for life, knew of the death of one of the tenants, of which fact the other party was igno- rant,* or where, in a partnership, a managing part- ner, having knowledge of the accounts and of the value of his co-partner's share, purchased it for an inadequate price without communicating to his partner, the proper information.^ On the other hand, there may be cases where the facts are mate- rial, and unknown to one party and known to the other; and they may be such as are not equally ' See preceding note. * Story's Eq., sec. 208; Arnot v. Bisco, 1 Ves., 95, 96. ' Story's Eq., sec. 209. * Turner v. Harvey. Jac. 169. * Maddeford v. Austwick, 1 Sim., 89; S. C. on appl., M. & K., 279. ACQUISITION OF PROPERTY. ^"^^ accessible; or at the moment, within the reach of both parties; and yet contracts founded on such ignorance on one hand, and knowledge on the other, may be completely obligatory/ It has been found to be very difficult to define within what limits a concealment of material facts will be deemed fraud- ulent. It would seem, from an examination of the cases, that a distinction should be taken between intrinsic and extrinsic circumstances. Justice Story defines intrinsic circumstances to be such as belong to the nature, character, condition, title, safety, use or enjoyment of the subject matter of the contract ; such as natural and artificial defects of the subject matter ; and he defines extrinsic circumstances to be those which are accidentally connected wdth it, or rather bear upon it, at the time of the contract, and may enhance or diminish its price or value, or operate as a motive to make or decline a contract ; such as facts respecting the occurrence of peace or war, the rise or Ml of markets, the character of the neighborhood, the increase or diminution of duties, or the like circumstances.^ The maxim of the common law, caveat emptor, requires the purchaser of goods and chattels to be on his guard ; and to look into the character and quality of that which he purchases for himself. If he has not the necessary knowledge and judgment to fit him for a purchaser in market, he must employ some one to assist or act for him. ' Story's Eq., sec. 207; Fox c. Mackreth, 2 Bro. Ch. R., 420; Turner v. Harvey, Jacob. R., 178; Story's Eq., sec. 147, 148; Harris v. Tyson, 24 Penn. St., 359. » Story's Eq., sec. 210. 12 178 ACTUAL FRAUD IN THE And, beside, if he doubt the character, condition or quality of that which becomes the subject matter of the contract or purchase, he is at liberty to question the vendor or other party, and require such infor- mation as will compel the party to disclose any de- fects in quality, character or condition which may be within his knowledge, and not apparent on care- ful examination. Thus, the vendee, if he exercise a proper degree of diligence, may guard against de- ception. But if he trust to his own judgment and sagacity, without demanding any warranty or other information respecting the quality, etc., of the ar- ticle, and if there be no artifice, misrepresentation or deception practiced by the seller, he buys at his peril. For, the common law, very reasonably, re- quires the purchaser to attend, when he makes his contract, to those qualities of the article he buys, which are sujjposed to be within the reach of his observation and judgment, and which it is equally his interest and duty to exert.^ In such cases the vendee is understood to be bound by the sale, notwithstanding there may be intrinsic defects and vices in the quality, known to the vendor and unknown to the vendee, which ma- terially affect its value.'^ The same maxim is ap- plicable in equity as at law. Its application is relaxed only when there are circumstances of pecu- liar trust, confidence or relation between the parties.^ '2 Kent's Com., sec. 39. p. 478; Seixas v. Wood, 2 Caine's R., 48; Welsh V. Carter, 1 Wend. R., 185; Sweet v. Colgate, 20 Johns. R., 196; Story's Eq., sec. 212; 2 Black. Com., 451. » Story's Eq., sec. 212. ' Story's Eq., sec. 213; see Martin v. Morgan, Brod. & Bing. R., 289. ACQUISITION or PROPERTY. 1'^ It would seem that in all cases where the conceal- ment of intrinsic circumstances from the other party- is deemed fraudulent, there is a breach of trust or confidence necessarily imposed; where the very silence of the party implies a direct affirmation, and it is deemed equivalent to it/ The relation of the parties may be such, that one party may legally ex- pect good faith on the part of the other. Thus, m the sale of a ship which had latent defects known to the seller, but which the buyer could not by any attention possibly discover, it was held that the sel- ler was bound to disclose, and the concealment was deemed a breach of good faith.- Where the silence is equivalent to artifice, and tends to throw the buyer off his guard, it is deemed fraudulent. Thus, where a vendor, knowing of an incumbrance upon an estate, and knowing that the purchaser is igno- rant of it, sells without disclosing the fact, and also under representations inducing him to buy, he acts fraudulently.^ The like confidence is violated where a party, taking a guaranty from a surety, conceals from him facts which go to increase his risk, and suffers him to enter into the contract under false impressions, as to the real state of the case. The omission to inform him of such circumstances is deemed fraudu- lent, and vitiates the guaranty.'' Or where a party, ' Story's Eq., sec. 214 ; 2 Kent's Coram., sec. 39, p. 483, and note on 488. '^ MuUish ti. Motteux, Peak's Cases, 115; see Baglchole v. Walters, 3 Carapb. R., 154, and Pickering v. Dovvson, 4 Taunt. R., 779. ' 1 Ves., 96. * Story's Eq., sec. 215, and authorities; Pidcock v. Bishop, 3 B. 8c C, 605; Evans v. Kneeland, 9 Alab. R., 42; Veeder v. ronda,3 Paige, 94. 180 ACTUAL FRAUD IN THE knowing his clerk to be dishonest, applies for secu- rity in such a manner, and under such circum- stances, as holds the clerk out before the world as honest and trustworthy/ Thus, in proportion as the relation of the parties approaches that which becomes confidential, does the law require the prac- tice of the utmost good faith. Under such circum- stances, any concealment of material facts, by which the other party is known to be misled, or to act unadvisedly, will vitiate the transaction. Thus the relation of attorney and client, principal and agent, principal and surety, landlord and tenant, parent and child, guardian and ward, trustee and beneficiary, etc., are relations of such trust and con- fidence that the utmost good faith is required.^ In the mercantile and commercial world, the relation of buyer and seller is one of antagonism of interest ; it is expected that each will seek to make the best bargain possible for his own interest ; and they enter the field of speculation with such ex- pectations. The law, therefore, says to them, caveat emptor ; and it will not aid them if they disregard the injunction. It will hold them to their words, and to the natural interpretation of their actions. They must not misrepresent any thing material; and they must use no artifice of any kind for con- cealment. But beyond this, it says. Caveat emptor. > story's Eq., sec. 215. ' Story's Eq., sec. 218; see also Whelen v. Whelen, 3 Cow., 537; Wen- dell V. Van Rensselaer, 1 Johns. Ch., 344; Brice v. Brice, 5 Barb., 533; Sears v. Shaffer, 1 Barb., 408; Bacon v. Bronson, 7 Johns. Ch., 194. ACQUISITION OF PROPERTY. 181 3. Contracts with Idiots and Insane persons. There is still another class of cases, deemed fraudu- lent, as affecting the rights of parties thereto ; con- tracts with idiots and insane persons; or persona who by law are deemed incompetent to contract, because they have not a sufficient use of their ra- tional faculties. The general maxim of the law, regarding the power to make contracts and perform other acts aff'ecting the rights and interests of the parties, is, that there must be a free and full consent in order to bind the parties. Consent is deemed an act of reason, accompanied with deliberation, the mind weighing as in a balance, the good and evil on each side.^ Puffendorf remarks that every true con- sent, implies a physical power, a moral power, and a serious and free use of them.^ Therefore when this consent is not intelligent and free, it does not constitute a perfect obligation. Thus if it is ob- tained by imposition, circumvention, surprise, undue influence, it is not a deliberate and free act of the mind. Hence, idiots and insane persons are inca- pable of giving such an assent, and therefore cannot make valid contracts.^ But the ground upon which equity interferes to set aside such contracts, is that of fraud.* For if persons, knowing their incapacity, deal with them, they are deemed to have perpe- trated a meditated fraud upon their rights.^ But » story's Eq.. sec. 222; 1 Fonbl. Eq.. B. 1, chap. 2, sec. 3; Willard'a Eq., 194; 2 Kent's Com., 450. » Law of Nat. and Nations, B. 3, chap. 6, sec. 3; Barbeyrac's note (1). ^ See ante page, 155. * Story's Eq., sec. 229. • Story's Eq., sec. 229; Willard's Eq., 197, 198, 199. 182 ACTUAL FRAUD IN THE where the party, dealing with one who is a fit sub- ject for a commission, is ignorant of his state, and the transaction is fair, that is free from any taint of fraud, equity will not interfere, especially where the parties cannot be reinstated/ Relief in equity, in such cases, depends very much upon circum- stances which mark each particular case/ Courts of equity are exceeding jealous of the rights of per- sons who are deemed non compos^ and they watch with great vigilance every attempt at dealing with them. Where, from the nature of the transaction, there is not evidence of the most perfect good faith, or where the contract does not seem perfectly just in itself, or for the benefit of such persons, equity will grant relief.^ Where fines have been levied, and recoveries have been suffered by such persons, equity will go all necessary lengths to grant relief. It will not declare them void and vacate them ; but it will decree a reconveyance, of the estate, and will hold the conusee or demandant to be trustee for the suffering party .^ X 4. Infants or Persons of non-age. Infants are by law generally treated as persons having no capacity to make contracts, or to bind themselves, from the want of sufficient understand- ' Neill V. Morley, 9 Ves., 478; Story's Eq., sec. 228; Sergeson v. Sealey, 2 Atk., 412; Carr v. Holliday, 5 Iredell's Eq. R., 167. " Selby V. Jackson, 13 Law J. Rep., (N. S.), chap. 249; Story's Eq., sec. 228. ^Story's Eq., sec. 229; Addison r. Dawson, 2 Vern., 678; Welby v. Welby, Tothill R., 164; Wilkinson v. Brayfield, 2 Vern., 807; Clark v. Ward, Preced. Chan., 150; Ferris v. Ferris, 2 Eq Abrigt., 695; Hill on Trustees, 154, and authorities cited. ACQUISITION OF PROPERTY. 183 ing or discernment. They are placed in the cate- gory of persons non compos in many respects/ and the necessity for guardians results from their ina- bility to take care of themselves. This inability is a presumption of the law in favor of the infant, and admits of no rebutting evidence. Most of the acts of infants are only voidable, and not absolutely void ; and may be affirmed or avoided when he arrives of age. There has been much dis- cussion of the question, what of the infant's acts were absolutely void and what voidable only. In the case of Keane v. Boycott,^ Lord Chief Justice Eyre undertook to reconcile the doctrine of void and voidable contracts on this ground: His Lord- ship said, that when the court could pronounce the contract to be to the infant's prejudice, it was void; and when to his benefit, as for necessaries, it was good ; and when it was of an uncertain nature as to benefit or prejudice, it was voidable.'^ Justice Story^ says, where the contract can never be for the benefit of the infant, it is void utterly. And that in res- pect to the acts of infants of a more solemn nature, such as deeds, gifts, grants, and such as take effect by delivery of his hand are voidable, but such as do not so take effect are void."* As to the time when ' 1 Fonbl. Eq.. B. 1, chap. 2; see 4 Willard's Eq ; Story's Eq., sec. 240, 242; Hamilton v. Lomax, 26 Barb., 615. «2H. Black. R., 611; McGan v. Marshall, 7 Humph., 121; 2 Kent's Com., 236; see Justice Story's remarks in 1 Mason's Rep., 82; Wheaton V. East, 5 Yerger, R., 41; McMinn v. Richmonds, 6 ibid., 1, ^ Story's Eq., sec. 241; 1 Fonbl. Eq., B. 1, chap. 2, sec. 4, note (y) (2) (6); Touch v. Parsons, 3 Burr., 1801, 1807; 1 Amer. Lead. Cases. * Touch V. Parsons, 3 Burr. R., 1794; Perkins, sec. 12; Conroe v. Bird- sail, 1 Johns. C, 127. 184 ACTUAL FRAUD IN THE infants may avoid their contracts or deeds: some may be avoided during infancy, others not until full age. It is said that the infant's privilege of avoiding acts which are matters of record, as fines, recoveries and recognizances, is limited to his min- ority, when his non-age can be tried by the court, by inspection ; but that deeds, writings and parol contracts may be avoided during infancy, or after he is of age, by his dissent, entry or plea, as the case may require.* In the case of Ross v. Stafford,^ Chancellor Jones held that an infant might avoid a sale of chattels while under age, but not a sale of land. In the latter case he could enter and take the profits until of age. But where the possession was changed, and he had no legal means to regain it, he might exercise the power of recision imme- diately- That the act of avoidance was allowed during infancy, only when necessary ; inasmuch as the infant lacked discretion to exercise it. That the infant might avoid the sale of chattels during in- fancy, and bring trover by his guardian, to recover them.^ As to the mode of affirmance or disaffirmance of those acts, deeds or contracts of the infant which are voidable after arriving at full age, there has been much conflict of authority, one class of decisions holding that the infant, on coming of age, if he would avoid his contract, deed, &c., is bound within > 2 Kent's Com., 237; Coke Litt., 380 (b) ; Com. Dig. tit. enfan., c. 3, 5, 9, 11. ^ 9 Cowen's R., 62G; Bool v. Mix, 17 Wend., 119; Cummings v. Powell, 8 Texas, 80. ACQUISITION OF PROPERTY. ^°^ a reasonable time to give notice thereof/ The other class insisting that the infant becomes bound, after becoming of age, only by reason of acts or circum- stances amounting to an affirmance ." The former is probably the English doctrine ; the latter the Amer- ican. The current of American decisions holds the doctrine that the contracts of the infant are not binding unless there be some act on his part affirm- ing the same after arriving at full age. Much, how- ever, will depend upon circumstances, such as the nature of the contract, and the situation of the in- fant, whether any overt act of assent or dissent on his part will be necessary .^^ Where the equity is strong against the disaffirmance, very slight acts on the part of the infant after coming of age would fix his responsibility ; but where the equity was strong the other way, acts amounting to a clear, intelligi- ble and intentional affirmation would probably be required.* 5. Surprise. That surprise which will avoid a deed must be produced or accompanied with fraud and circumven- » Holmes v. Blogg, 8 Taunt. R., 35; Kline v. Beebe, 6 Conn. R., 494; Richardson v. Boright, 9 Verm. R., 368; Hoit v. Underbill, 9 N. H. Rep., 439; Moore v. Abernatby, 7 Blackf. R., 442; Cressenger v. Welcb, 15 Ohio R.,'l56; Dublin & Wicklow R. Co. v. Black, 15 Eng. L. & Eq R., 556. 'Evelyn v. Chichister, 3 Burr. R., 1717; Hubbard v. Cummings, 1 Greenl. R., 11; Aldrich v. Grimes, 10 N. H. Rep., 194; 4 Pick. Rep. 48; Lessee of Drake v. Ramsay, 5 Ham. Ohio, 251 ; Jackson v. Carpenter, 11 Johns. Rep., 539. » 2 Kent's Com., 239. * Hinely v. Margaritz, 3 Barr. R., 428; Norris v. Vance, 3 Rich. R., 164; Smith V. Kelley, 13 Met. R., 309. 186 ACTUAL FRAUD IN THE tion/ The party, before he can claim relief on the ground of surprise, must show, from the facts and circumstances, that he had no opportunity for exer- cising that deliberation necessary for giving a valid assent. That he was under pressure of circumstan- ces, and that proper time was not allowed him. That the importunity of those in whom he placed confidence was exceedingly pressing. That he was not aware of the consequences, being so suddenly drawn into the act, and having no time to consult counsel or friends. These, or the like considerations being fully established, if it shall appear to the court that great injustice has been done, or that there is great inequality in the bargain, equity will grant re- lief." Relief is granted in these cases upon the ground of fraud in one party and mistake in the other. For where a party is taken by surprise, and has no time for the exercise of judgment or deliberation, and the other party takes advantage of that surprise, know- ing him to be acting without deliberation, without the counsel of friends, and without time to calculate consequences, he is deemed guilty of fraud, and equity will punish him by converting him into a trustee.^ As full assent is essential to a valid agree- ment, where that is prevented by surprise, and with- out any fault of the party, it would seem to be a fit case for equitable relief.^ ' Fonbl. Eq., B. 1, chap. 2, sec. 8; 1 Mad. Ch. Pr., 212, 213, 214. " Evans z). Llewellyn, 1 Cox R., 439,440; S. C, 1 Bro. Ch. R., 150; Irnham v. Child, 1 Bro. Ch. R., 92; Picket v. Loggon, 14 Ves., 215; Townshend r. Stangroom, 6 Ves., 388; Story's Eq., sec. 251; Turning v. Morrison, 2 Bro. C. C, 326; Mortlock v. Buller, 10 Ves., 301. ' Marquis of Townshend v. Stangroom, 6 Ves., 339; Pickett v. Lagoon, 14 Ves., 215; Willard's Eq., 206. ACQUISITION OF PROPERTY. 1^7 2. When the Act is in Fraud of the Rights of Third Parties. 1. Fraud in the procurement or suppression of Deeds, Wills, Sfc. It is laid down as a general rule that equity will not relieve in cases of fraud in the procurement of wills, because there is an adequate remedy at law.' In England, if the will be of personal estate, the remedy is in the Ecclesiastical court ; and if of real estate, it may be set aside at law. Objections of this kind should be settled at the time of probate. Inasmuch as the will has no recognized validity until after probate, and that which tends to impeach it is admissible as evidence at that time,, courts of equity have usually declined to take jurisdiction, upon the principle that the parties have an adequate remedy at law.'-^ There may be cases, however, when the remedy at law not being adequate, chan- cery will take jurisdiction. Thus, where the execu- tor, who prepared the will of the testator, was a lawyer, and did not inform him of that rule of inter- pretation by which the executor was allowed to claim and hold so much of the personal estate as was left undisposed of by the will, and it appearing to the court that it was not the intention of the tes- tator that the executor should take any benefit under the will, he was not allowed to profit by the omis- ' story's Eq., sec. 184, and see note to (7 ed). » Kenrich v. Bransby, 3 Bro. P. C 358; Allen v. McPherson, 5 Beav., 469; I PhiU. Ch. R., 133; Colton v. Ross, 2 Paige, 396; Clark v. Fisher, 1 Paige, 171; Bowen v. Idley, 6 Paige, 46. 188 ACTUAL FRAUD IN THE sion, but was decreed to be a trustee for the next of kin/ So likewise where the drawer of a will fraudu- lently inserted his own name instead of the name of the legatee, there being no adequate remedy at law, chancery has interfered and declared a trust.^ This question has been much discussed both in Eng- land and America, and the current of decisions is adverse to the jurisdiction of courts of equity in cases of fraudulent procurement of wills, upon the sole ground that there is an adequate remedy at law. It therefore, would seem to follow, that in all cases where the remedy at law is grossly inadequate, in such cases, equity might give relief. Mr. Willard, in his Equity Jurisprudence,^ remarks, that though equity will not set aside a will as obtained by fraud after it has been admitted to probate, it has been held that equity will declare a trust upon a will in case of a notorious fraud upon a legatee ; and where the drawer of a will should insert his own name instead of the name of a legatee, &c. In such case the person whose name is so inserted by fraud, is held to be trustee of the real legatee.^ But fraud on the part of an heir or other person in destroying a will, deed, or other instrument, through which a third party is to derive title, comes within the scope of equitable relief. Thus, if an heir * Seagrave v. Kirwin. 1 Beat., 157; Kennel v. Abbott, 4 Ves., 802; Pod- more V. Gunning, 7 Sim., 744; see also Brady r. McCosker, 1 Comst., 214; Clark V. Sawyer, 2 Comst., 498. ' Kennell v. Abbott, 4 Yes., 802. ' Willard's Eq., p. 146; Harriot v. Harriot, 1 Str., 667; Gains and wife V. Chew, 2 How. S. C. R., 619, 645; Traver v. Traver, 9 Pet., 180; Hoge V. Hoge, 1 Watts, 213. ACQUISITION OF PROPERTY. l^^ should suppress a will or deed to prevent a devisee or grantee from obtaining an estate thereby vested in him, a court of equity would grant relief and perpetuate the possession and enjoyment of such estate in the devisee or grantee/ In the case of Morey v. Herrick,^ Bell, J., in giving the decision, said, " It is well settled that if one be induced to confide in the promise of another that he will hold in trust, or that he will so pur- chase for one or both, and is thus led to do what he otherwise would have forborne, or ".to forbear to do what he had contemplated in the acquisition of an estate, whereby the promisor becomes the holder of the legal title, an attempted denial of the confidence is such a fraud as will operate to convert the pur- chaser into a trustee." The trust in these cases is raised ex maleficio, and is not so much because of the fraud in the original acquisition of the property as in the subsequent refusal to execute the trust. This principle is further illustrated in the case of Hoge V. Hoge,'' in which one William Hoge, by his will had devised, among other legacies, one undi- vided third of a large tract of land to his brother John Hoge, without making any declaration of the • story's Eq., sec. 254, and he cites 1 Fonbl. Eq., B. 1, chap. 2, sec. 3, note («) ; Hunt r. Matthews, 1 Ves. R., 408; Wardour v. Binsford, I Vern. R., 452; Dalton v. Coalsworth, 1 Pr. Win., 731; Tucker v. Phipps, 3 Atk , 360; Hampden v. Hampden, 1 Bro. P. C, 250. ' Morey v. Herrick, 18 Penn. St. R., 128. » Hoge V. Hoge, 1 Watts, 213; Dixson v. Olmius, 1 Cox. Ch. Ca., 414; Harris v. Horwell, Gilb. Eq. Rep , 11; Chamberlaine v. Chamberlam, 2 rreem.,34; Devenish v. Baines' Prec. Ch., 3; Oldham t,. Litchfield, 2 Vern., 506; Thynn v. Thynn, 1 Vern., 296. 190 ACTUAL FRAUD IN THE trust. But at the time of the drawing of the will, the testator told the scrivener that the land devised to his brother John was in trust, but did not declare who was the beneficiary. He said there was no other way of doing it, and he must leave it entirely to his brother's honor, and he had full confidence in him. The scrivener also testified that on the day the testator was buried he spoke to John Hoge, the devisee, about the devise to him, and informed him what the testator said about it at the time the will was drawn. And John replied it was for young Wil- liam Hoge, an illegitimate son of the testator, and said he had been a long time trying to get his bro- ther, the testator, to do it ; but he had not the cou- rage ; and he also spake of the difficulties made by his brother when he proposed it. Other evidence was given tending to establish the same fiict as to the trust. Suit was brought by young William to recover the land devised to John, and the defen- dant's claimed under a deed from John, and denied the trust. Gibson, J., in giving the decision of the court, re- marked, " Cotemporary declarations of a testator have always been not only competent, but power- ful evidence of the fact declared : and the compe- tency of declarations by the devisee while he was the owner of the land will not be disputed. Indeed, the objection is rather to the fact itself than to the evidence of it. And it is contended that parol evidence of a trust is contrary to our Statute of Wills, which corresponds, as far as regards the point in dispute, with the British Statute of Frauds. Un- ACQUISITION OF PROPERTY. 191 doubtedly every part of a will must be in writing and a naked parol declaration of a trust in respect to land devised is void. The trust insisted on, how- ever, owes its validity, not to the will or the decla- ration of the testator ; but to the fraud of the de- visee. It belongs to a class in which the trust arises ex maleficio, and in which equity turns the fraudu- lent procurer of the legal title into a trustee, to get at him ; and there is nothing in reason or authority to forbid the raising of such a trust from the surrep- titious procurement of a devisee.^ In cases of this character when the trust is raised ex maleficio, it is legitimately within the province of equity to grant relief. The cestui que trust did not wish to impeach the will, or in any manner to in- validate it. His claim depended upon maintaining its validity. He asked that the trust should be executed according to the intention of the testator ; and he had no adequate remedy at law. The principle is well settled, that parol proof is admissible to establish a trust in certain cases where the deed is absolute upon its face. Thus in the case of Ambrose v. Ambrose,^ where real estate was pur- chased in the name of another person, without any trust being expressed at the time ; and the purchaser, having devised the estate, died. After his death the trustee declared that he held in trust for the pur- chaser. This was held to be good evidence of the trust ; and the devisee who claimed the estate, held * See preceding note. ' 1 Pr. Wm., 323; see afto Wilson v. Dent, 3 Sim., 385; Gardner v. Rowe, 2 S. and St., 346; Hoge v. Hoge, 1 Watts^ 213. 192 ACTUAL FRAUD IN THE it against the widow who also claimed it by the cus- tom of London. And upon a similar principle it is held, that a deed absolute upon its face, may be con- verted to a mortgage by parol testimony ; where the act and declaration are cotemporaneous with the execution of the instrument/ At law, such evi- dence might not be admissible ; but equity, acting upon the principle that the omission is the result of accident, mistake or fraud, admits parol proof.^ In the case of Harriot v. Marriott, mentioned in Strange, p. 666, and also in Gibb. Rep. 203, the case was compromised, and the judgment although writ- ten out, was not delivered. In that case the judge took the position, that a court of equity, might, ac- cording to the real intention of the testator, declare a trust upon a will although it be not contained in the will itself, in the three following cases : First, in a case of a notorious fraud upon a legatee ; as if the drawer of a will should insert his own name instead of the name of the legatee f no doubt he would be a trustee for the real legatee. Secondly, where the words imply a trust for the relations, as in case of a specific devise to the executors, and no disposition of the residue.* Thirdly, in case of a ' Brown V. Lunt. 37 Maine. 423; Mclntyre v. Humphries, 1 Hoff. Ch. Rep., 31; Marks v. Pell, 1 John. Ch., 594; Strong v. Stewart, 4 J. Ch., 167; Clark v. Henry, 2 Cow., 324; Whittick v. Kane. 1 Paige, 202; Van Buren v. Olmstead, 5 Paige, 9; Lansing v. Russell, 3 Barb. Ch., 325; see also Chaniplain v. Butler, 18 Johns., 169; Gilchrist v. Cunningham, 8 Wend., 641; Ryan v. Dox, 25 Barb., 440. ' Webbi'. Rice, 6 Hill, 219. ' Kennell r. Abbott, 4 Ves., 802. * See unexhausted residuum, ant* page. ACQUISITION OF PROPERTY. 193 legatee promising the testator to stand as a trustee for another/ and nobody has thought that declaring a trust in these cases, is an infringement upon the ecclesiastical jurisdiction ; and, Mr. Story adds, in his note to §184 of his Equity Jurisprudence, these positions do not admit of any dispute, for in none of these instances would the ecclesiastical court be competent to afford relief. From an examination of the conflicting decisions upon this subject, and the principles upon which they are based, it would seem that equity has jurisdiction in cases of fraud, accident and mistake, in the procuring and execu- tion of wills as well as deeds, where the remedy at law is grossly inadequate.^ It is but a dictate of sound morality, that when A. for his own personal advantage, has injured B. by his false and fraudulent actions and representa- tions, and has thus possessed himself of property of which he has deprived B., he shall not be permitted to enjoy the fruit of his wrong doing, neither shall B. be deprived of the advantage intended him ; but justice shall be done by converting A. into a trustee for B., and compelling him to execute the trust. Thus, where an instrument is suppressed or des- troyed by the defendant, equity will grant relief by converting him into a trustee if need be f or, * See Chamberlain v. Chamberlain, 2 Freem., 34; Goss v. Tracey, 1 Pr. Wm., 288; Thynn v. Thynn, 1 Vern., 296; Oldham v. Litchfield, 2 Vern., 506. ^ This subject is treated at length, and the conflicting authorities cited, in a note to section 184 Story's Eq. Jurisprudence; see also note and authorities cited in Hill on Trustees, p. 150. ' Mad. Ch. Pr., 42-i; Bates v. Head, Toth., 66, 13 194 ACTUAL FRAUD IN THE where a will has been suppressed or destroyed by an executor for the purpose of defeating a legacy, the legatee may obtain a decree for payment against him.^ It is the peculiar province of a court of equity to grant relief from the effect of spoliations and sup- pressions of instruments. And when the contents of an instrument thus repressed or destroyed can be ascertained, the party injured thereby will have the same benefits as though the instrument were pro- duced.~ Thus, where a will has been suppressed, and the proof of its contents could not be made out, the devisee was decreed to enter and enjoy, until the defendant produced the will, and until further order.^ So, also, where there was no evidence of a deed which a party confessed to have burned, he was ordered to be committed until he admitted the deed as stated in the bill,* The principle is this : where the instrument is proved to have existed, or would have existed had it not been for the fraudu- lent conduct of the party, the court treat the instru- ment as actually executed and existing.^ So, also, if an heir or personal representative or devisee, whose interest would be prejudiced by the * Tucker v. Phipps, 3 Atk., 360; Hayne v. Hayne, 1 Dick., 18; Tucker V. Phipps, 3 Atk. R., 360; and see Story's Eq.. sec. 254, note (1), and the remarks of Lord Hardwick, there cited; Brown v. Lynch, 1 Paige, 147. * Story's Eq., sec. 254, and authorities cited; Garterside v. Radcliffe, 1 Ch. Ca., 292; Hunt v. Matthews, 1 Vern., 408. ^ Hampden r. Hampden, 1 P. Wm., 733. * Sanson v. Rumsey, 2 Vern.. 561. Mliddleton v. Middleton, 1 I. & W., 99; Saltern z. Melhuish, Arab., 294; Luttrell v. Waltham, 14 Ves., 290. ACQUISITION OF PROPERTY. 195 insertion of a provision in a will in favor of some third person, induces the testator to omit such pro- vision by assurances that his wishes shall be execu- ted as though the provision were made, such assu- rances will raise a trust which will be enforced in equity, and such trust may be proved by parol/ 2. Fraud in regard to Powers of Appointment. The principle is this. A person having a power of appointment for the benefit of others shall not use it for his own benefit, if he does so, he is deemed guilty of fraud, and equity will hold him to an ac- count as trustee to the extent of the benefit he de- rives therefrom. Thus, where a father had a power to appoint among his children, and made an illusory appointment, by giving to one child a nominal and not a substantial share, his conduct was deemed a fraud upon the power.'^ So also when a parent has power of appointment to such of his children as he may choose, shall not, by exercising it in favor of a child in a consumption gain the benefit thereof to himself; neither shall he, by secret agreement with a child in whose favor he makes it, derive a benefi- cial interest from the exercise of such power.^ ' Gaither v. Galther, 3 Md. Ch. Decis., 158. * Siigd. on Pow., chap. 7, sec. 2, chap. — , sec. 4; Butcher v. Butcher, 9 Ves., 382; 1 Mad. Ch. Pr., 246 to 252. ^ 3Ieyn v. Belcher, 1 Eden R., 138; McQueen v. Farquer, 11 Ves., 479; Palmer u. Wheeler, 2 Ball & Beatt., 18; Morris v. Clarkson, 1 Jac. & Walk., 111. 196 ACTUAL FRAUD IN THE 3. Fraudulent Conveyances to Defeat Creditors. Where the conveyance is not absolutely void so as to confer no legal interest whatever, a trust will be raised in favor of the creditors, on proper appli- cation to the court. Such conveyances are usually altogether void at law, and consequently there is no legal estate upon which a trust can fasten. But where a debtor has compounded with his creditors, and one of them who has agreed to the arrangment enters into a secret arrangement with the debtor by which he obtains some additional property or ad- vantage, the transaction will be deemed fraudulent, and he will hold such property in trust for the creditors.^ 4. Devise or Conveyance to Trustees for Illegal Purposes. It is deemed to be a fraud upon the legislature to devise or convey property to trustees upon a secret understanding that the same is to be applied for purposes forbidden by law, and therefore the law will not permit such conveyances to take effect. It is also deemed to be a fraud upon the rights of those parties who would become entitled upon fail- ure of the illegal gift. Upon this principle the heir at law filed a bill against a devisee, alleging the existence of such a trust, and the defendant was re- * See Chesterfield v. Jansen, 2 Ves., 156; ex parte Saddler & Jackson, 15 Ves., 52; Mann v. Darlington, 15 Penn. St. R., 310; see Trusts for benefit of creditors, post; Walcott v. Almy, 6 McLean, 23; Garr v. Hill, 1 Stockt., 210; Clark v. Depew. 25 Penn. St. Rep., 509. V ACQUISITION OF PROPERTY. 197 quired to answer.^ And where the illegal trust is established, the devisees or grantees will be decreed to be trustees of the heir at law, or other person legally entitled.^ 5. Purchases from a Trustee with Notice of the Trust: Of Executors, etc. Where a person purchases an estate of a trustee, with a knowledge of the trust, though for a valua- ble consideration, he is bound by the trust to the same extent and in the same manner as the one from whom he purchased.^ And a fine levied by the purchaser with notice will not aid his title or bar the right of the cestui que trusts The principle is this. Where a party acts with a knowledge that his act is in fraud of the rights of another, he shall not be permitted to profit by such fraudulent action ; bat, to the extent of his acquisition he shall hold for the benefit of the defrauded party. Thus, pur- chases from executors and administrators of the per- sonal property of their testators, are usually obliga- ' Muckleston v. Brown, 6 Ves., 52, 67; Podmore v. Gunning, 7 Sim., 644; Edwards V. Pike, 1 Ed., 207; Strickland v. Aldridge, 9 Ves., 516. ^ Cottingliam v. Fletcher, 2 Atlc, 155; Edwards v. Pilce, ut supra ; Hill on Trustees, 164; see Gage v. Gage, 9 Foster, 538. ' Fisher v. Fields, 10 Johns. 495; Murry v. Ballou, 1 Johns. Ch. Rep. 566; Shepherd v. McEvers, 4 John. Ch., 136; Brown v. Lyncli, 1 Paige, 147; Lawrence v. Lawrence, 3 Barb. Ch., 71; Bradstreet v. Clark, 12 Wend., 602; Peebles v. Reading, 8 Serg. & Raw., 495; Den r.McKnight, 6 Halst., 385; see notes to Le Neve v. Le Neve, 2 Lead. Cas. in Eq., p. 1, p. 163; Mead v. Lord Orrery, 8 Atk., 238; Earl Brook v. Bulkley, 2 Ves., 498; Mansel v. Mansel, 2 P. Wm., 681; Pye v. Gorge, 1 Id., 128; Taylor r. Stibbents, 2 Ves. Jr., 437; Sanders v. Dehew. 2 Vern., 271; Adair i;. Shaw, 1 Sch. & Lef., 202; 2 Sugd. V- & P., 269. * Kennedy v. Daly, 1 Sch. &, Lof., 379. 198 ACTUAL FRAUD IN THE tory, for the purchaser cannot be presumed to know whether the sale is necessary or not for the dis- charge of the testator's debts. But where the pur- chaser knows the executor is wasting the estate or is converting it into money, the more easily to run away with it, or for any other unlawful purpose, he is chargeable with the fraud, and may be converted into a trustee.^ On the same principle, debtors col- luding with executors or administrators, either to retain or waste the assets, will be held responsible to the creditors of the estate, and the creditors will be permitted to maintain a suit in equity against such debtors.^ The general doctrine is, wherever there is a misapplication of the assets, and they can be traced, or their proceeds, into the hands affected with notice of such misapplication, a trust will attach upon the property or proceeds in such hands.^ In cases of the foregoing character the trust at- taches upon the principle that the purchaser has been guilty of fraud ; that in the purchase of the trust property he has acted in his own wrong, and " Story's Eq., sec 422; Worseley v. De Mattos, 1 Burr., 475; Ewer v. Corbet, 2 P. Wm., 148; Beiifield v. Solomons, 9 Yes., 86, 87; Hill v. Simpson, 7 Yes., 152; 1 Mad. Ch. Pr., 228; Newland on Cont., chap. 36, p. 513. ' Holland v. Prior, 1 Mylne & Keen, 240; ISTewland v. Champion, 1 Yes. 106; Doran v. Simpson, 4 Yes., 651; Alsager v. Rowley, 6 Yes., 748 Beckley f. Dorrington, West. R., 169; Burroughs t). Elton, 11 Yes., 29 Story's Eq.; sec 423, 581, 828; Field v. Schiefltelin, 1 J. C R., 155; Colt «. Lansnier, 9 Cowen, 320; Williamson v. Branch Bank, 7 Alab., 906; Parker v. Gilliam, 10 Terg., 394; Garnet v. Macon, 6 Call., 361; Pctrie v. Clark, 10 S. & R., 388; S wink's Adm. v. Suodgrass, 17 Alab. 653; Graft" r. Catleman, 3 Rand., 204. ACQUISITION OF PROPERTY. 199 his conscience is affected. The principle, therefore, does not apply to purchasers without notice and for a valuable consideration. As to what notice of the trust will charge the purchaser, and when that no- tice must be given, it must be such notice as will put the purchaser upon his guard, and it must be given in season, to enable the purchaser to protect his rights. Therefore if the purchaser have notice of the trust before paying the purchase money, and he disregard it and pay it he will be charged with the trust ; even though the purchase money was se- cured, and the conveyance actually executed before notice.^ It has been held that the trust would attach even though the notice was given, after the payment of the purchase money and before the execution of the conveyance ; and such is the current of English and American authorities.^ But it is carrying the doctrine to its utmost limit ; and the circumstances should be very peculiar to justify it. Accordingly, it has been held that where the purchase monej- had actually been paid, even though the conveyance had not been executed at the time of notice, the pur- chaser would be protected ;^ and if part of the pur- ' Story V. Lord Windsor, 2 Atk., 630; Jones v. Stanlej-, 2 Eq. Ca. Abrgt., 685; Tourville v. Nash, 3 P. Wm., 307; More v. Mayhew, 1 Ch. Ca., 34; Wigg v. Wigg, 1 Atk., 384; 2 Sug. V. & P., 274; Wilcox v. Cal- laway, 1 Wash. Va., 38; Snulgrove v. Snelgrove, 4 Desaus., 274; More v. Clay, 7 Alab., 742; Blair r. Owles, 1 Mumf. , 40; Simmons v. Richardson 2 Little, 274; Williams v. HoUingsworth, 1 Strob. Eq., 103; Bush v. Bush, 3 Strob. Eq., 131; Alexander v. Pendleton, 8 Cranch, 462; Wormlcy v. Wormley, 8 Wheat., 421; Boone v. Childs, 10 Peters, 177. ^ Youst V. Martin, 3 S. & R., 430; Doswell v. Buchannan, 3 Leigh, 365; Boggs V. Varner, 6 W. & S., 469; Juvenal v. Jackson, 14 Penn. St. R., 519. 200 ACTUAL FRAUD IN THE chase money had been paid, the purchaser would be protected, pro fanto} The principle to be kept in mind should be the protection of the rights of the innocent party, for, as between the cestui que trust and the innocent purchaser without notice, the equities are equal. ^ Where the purchase has been made by an inno- cent party for a valuable consideration, he takes the estate discharged of the trust ; and can dispose of it even to a party having notice of the trust ; and such party will be protected in his purchase, unless he be the original trustee.^ In such case he will be fixed with the trust.'' Notice of the existence of the trust must be given to the purchaser himself or to his agent, counsel or attorney.^ And the notice must be in the course of the same transaction ; or in such close proximity to it, that the purchaser shall be presumed not to have forgotten it,'' The general rule is, that the notice must ^ Youst V. Martin, ut supra; Bellas v. McCarty, 10 Watts, 13; Juvenal V. Patterson, 10 Barr., 282; Flagg v. Mann, 2 Sumner, 486; Frost v. Beek- man, 1 J- C R., 288. * Millard's Case, 2 Freem., 43; Finch v. Earl of Winchester, 1 P. Wm., 278; 1 Cruis. Dig., tit. 12, chap. 4, sec 12; Hill on Trustees, 510. ^ Sweet r. Southcote, 2 Bro. C C, 66; Lovvther v. Charleton, 2 Atk., 242; Harrison v. Forth, Prec. Ch., 51; Bradling v. Ord, 1 Atk., 571. * Armstrong v. Campbell, 3 Terger, 201; Oliver v. Piatt, 3 How. U. S., 401; Bovey v. Smith, 1 Vern., 149; Cruis. Dig., 12, chap. 4, sec 14; Church V. Church, 25 Penn. St. Rep., 278. * Brotherton v. Hatt. 2 Vern., 574; Newsted v. Searles, 1 Atk., 265; Ashley v. Baily, 2 Ves., 368; 2 Sugd. V. & P., 278; Hill on Trustees, 165, 510; Asler v. Wells, 4 Wlieat., 466; Blair v. Owles, 1 Muraf., 40; Johnson v. Leek, 19 Wend., 339; Bracken v. Miller, 4 W. & S., 108. « Warwick v. Warwick, 3 A-tk., 291; Hine v. Dodd, 2 Atk., 275; Wors- ley V. Earl of Scarborough, 3 Atk., 392; Ashley v. Baily, 2 Ves., 368; ACQUISITION^ OF PROPERTY. 201 be given by a person interested in the property, and during the treaty of purchase. It is important that a degree of certainty should be required, in or- der to affect the conscience of the purchaser, with notice of the trust ; because, if every vague and idle rumor which the suspicious or evil minded might put in circulation, were to charge the consci- ence of the purchaser, every man's estate might be slandered. Consequently, vague reports coming from persons who have no interest in the estate or transaction, will not be deemed to be sufficient no- tice,^ unless the circumstances are such as would put a prudent man upon his guard." The principle to be observed is, that the notice must be such as the court, under the circumstances, will deem suf- ficient to put the purchaser on his guard. And there is no safety in purchasing, where the purchaser has such notice as must raise a doubt in his mind as to the true character of the vendor's title.^ The notice must be in the same transaction accord- ins; to some authorities.* But if the circumstances Mountford v. Scott, 3 Mad., 34; Henry v. Morgan, 2 Binn., 497; Hamilton V. Royse, 2 Sch. & Lef., 327; 2 Sugd. V. and P., 277; Hargraves v. Roth- well, 1 Keen, 154; Perkins v. Bradley, 1 Hare, 230. '2 Siigd. V. and P., 276; Kernes v. Swope, 2 Watts, 78; Flagg v. Mann, 2 Sumn., 491; Lewis v. Madison, 1 Mumf., 303; Meals v. Brandon, 16 Penn. St. R., 225; Butler v. Stevens, 26 Maine, 484; Boggs r. Yarner, 6 W. & S.,471. ^ Jackson v. Cadwell, 1 Cowen, 622; Currens v. Hart, Hardin, 37; Cur- tis V. Mundy, 3 Mete, 406: Pearsons v. Daniel, 2Dev. & Batt. Eq., 360. » See remarks of Sir E. Sugden, in 2 Sug. Y. and P., 277, (9 ed.) ; Fry V. Porter, 1 Mod., 300; Butcher v. Stapely, 1 Ver., 363. * Preston v. Tubbin, 1 Yern., 286; Hine v. Dodd, 2 Atk., 275; Henry v. Morgan, 2 Binn., 497; Ashley v. Bailey, 2 Yes., 368; Hill on Tnistecs, 510. 202 ACTUAL FRAUD IN THE are such that the court cannot presume the purchaser to have forgotten it, or rather, if the court must rationally presume the purchaser to have remem- bered the existence of the trust, it will be sufficient/ The purchaser without notice of the trust, can have no higher equity than the cestui que trust ; conse- quently the court should make no violent presump- tions in favor of the purchaser. It is not always necessary to find that the phrchaser had actual notice of the trust, for if the circumstances are such as enable the court to say, not only that he might have acquired notice, but that he ought to have acquired it, and would, had he not been guilty of gross neg- ligence, his conscience will be deemed to be affected.^ Notice of the trust may be actual or constructive. Actual and constructive notice do not differ in their effect upon the conscience of the purchaser or the rights of the parties ; they express but different modes of proof of the purchaser's notice. In the one case, the proof is direct and positive; in the other, indirect and inferential. In certain cases, the presumption is so violent that the law will not permit it to be rebutted.'' Whenever the notice is such as to put the pur- chaser on an enquiry which would lead him to a discovery of the trust, it will be a good constructive ^Mountford v. Scott, T. & R., 280; Hargreaves v. Rothwell, 1 Keen., 154; Perkins v. Bradley, 1 Hare, 230. * Ware v. Lord Egmont, 24 L. J. Ch., 366. ^ Roggers v. Jones, 8 N. H., 264; Farnsworth v. Childs, 4 Mass., 640; Siigd. V. and P., 278; Griffith v. Griffith, 1 Hoff. Ch., 156; Jones v. Smith, 1 Hare, 43 to 55. ACQUISITION OF PROPERTY. 203 notice/ For the purchaser must be presumed to have used a reasonable diligence in his enquiry. Thus, where the trustee was not in actual posses- sion of the estate, unless the nature of the estate be such as not to require actual possession, as a rever- sionary estate, the purchaser would be deemed to have had constructive notice of the trust, for the possession of the estate being in another, and espe- cially in the cestui que trust, the purchaser would be bound to enquire into the extent of the interest such possessor might have in such estate.- But this possession of the estate by another, although a notice to the purchaser of all the equities which the one in possession can set up as against the vendor, has been held not to be notice of the title of the lessor where the possession is that of a tenant ; and con- sequently it was held that where the purchaser neg- lected to enquire into the title of the occupier, he was not to be affected by any other equities than those the occupier may insist on."^ Wherever the trustee attempts to sell a present interest in an estate, possession of the estate by him, is deemed essential to the validity of the sale; and 'it was the opinion of Lord Eldon, that a plea of purchase for a valuable consideration, without no- ' Sug. Ven. and P., 290, (9 ed.); Jacksou v. Cadwell, 1 Cowen, 622; Flagg V. Mann, 2 Sumner, 486; Sigourney v. Munn, 7 Conn., 32-1; GliTor V. Piatt, 3 How. U. S., 333; Blaisdell v. Stevens, IG Verm., 179; Kennc- day V. Green, 3 My. & R., 719. 'See Jackson v. CadwcW, ut stcpr a; Westervelt v. Haff, 2 Sandf. Ch., 98; Barnes v. McCrmton, 3 Pa. R., 69; Chesterman v. Gardner, 5 J. C. R., 29; Krider v. Laflferty, 1 Whart., 303; Flagg v. Mann, 2 Sumner, 556. » Barnhart v. Greensliields, 28 Eng. L. and Eq., 77. 204 ACTUAL FRAUD IN THE tice, would be bad, unless there was an averment therein that the trustee was in possession •} other- wise if the interest be reversionary.^ The purchaser without notice must have acted in good faith, and with a reasonable degree of prudence ; consequently if, suspecting the existence of a trust, he designedly or wilfully omits making enquiries, that he may avoid notice, he will be deemed to have had con- structive notice, and will be charged with the trust.^ In the United States, the registration of a deed or mortgage is constructive notice to the world of the rights and equities conveyed thereby.'' The rule in England differs from the rule in this country. There, the registration of a deed will not, of itself, fix the purchaser with constructive notice of the trust .^ But the policy of this country is to favor the certainty and security arising from the registry of deeds. It is a legal method of giving notice of legal rights and equities arising by deeds, grants, etc., in such a way that all who will exercise due diligence, can be informed of their existence.'* The object of the registration of the deed or grant is to give notice to the world of the rights and in- terests conveyed thereby ; consequently, where the ' Walwyn v. Lee, 9 Ves., 32; see Daniels v. Davidson, 17 Ves., 433; Jones V. Smith, 1 Hare, 60; Powell v. Dillon, 2 Ball. & B., 416; Jackson r. Rowe, 4 Russ., 523. "" Hughes V. Garth, Ed., 168. ' Kennedy v. Green, 3 M. & K., 699; Hurn v. Mills, 13 Ves., 119; Jones V. Smith, 1 Hare, 56; Mertins v. Joliff, Ambl., 311; Leiby v. Wolf; 10 Ohio, 83. * 4 Kent. Com., 168, and authorities. ' Hill on Trustees, 511, and authorities cited. ACQUISITION OF PROPERTY. 205 subsequent purchaser or mortgagee has actual notice of the existence of the unregistered deed or mort- gage, he is chargeable with notice, the same as though it were recorded/ There is not uniformity in the decisions touching the question of title arising from the prior record- ing of a subsequent deed. The uncertainty is re- specting the character of the notice which will be deemed sufficient to postpone the recorded to the prior unrecorded deed. Where the law requires the purchaser to put his deed or mortgage upon record, in order that others may have notice of his rights, and he neglects to do so, and thereby innocent pur- chasers are entrapped, equity will protect the inno- cent and punish the one guilty of such negligence, by postponing his rights to the rights of the inno- cent purchaser ; but where the subsequent purchaser has actual notice of the existence of the unrecorded deed, and seeks to take advantage of the owner's neglect, he is deemed guilty of fraud, and can take nothing thereby.^ The proof of notice in such cases must be conclusive, or at least as strong as would be necessary to establish fraud in other cases.'"^ In some 14 Kent Com., 170; Tunstall v. Trappees, 3 Simons, 28G; Le Neve v. LeNeve, 3 Atk., 646; 1 Ves., 64; 8 Amb., 436; JackBon .. Leek 19 Wend., 339; Jackson v. Sharp, 9 Johns. R., 163; Farnsworth v. Childs, 4 Mass., 637; Correy .. Caxton, 4 Bhiney, 140; MeCuUough v. Wilson, -1 Penn. St., 436; Ohio In. Co. v. Ledyard, 8 Alab., 866; Center v. P. & M. Bank, 22 Alab., 743. ■ o j a Vn ^ Le Neve v. Le Neve, 3 Atkyns, 646; Flemmmg v. Burgin, 2 Iicd. Lq., 584; Ohio In. Co. v. Ross, 2 Maryl. Ch. Dec., 35; Norcross v. Widgery, - Mass., 509; Bush v. Golden, 17 Conn., 594; Frothingham v. Stacker. 11 Missouri, 77; Burt v. Cassety, 12 Alab., 734; Hopping v. Burnam, Green., (Iowa), 39; Story's Eq., sec. 406. 206 ACTUAL FRAUD IN THE states it has been decided that constructive notice of the existence of the prior deed is not sufficient to charge the subsequent purchaser ;^ in others it is deemed sufficient.^ But, as there is no difference between constructive and actual notice, except in the degree of certainty, as to the actuality of the notice to the one to be affected thereby, it will be found that the conflict in these cases is rather appa- rent than actual. In some states the laws requiring the recording of certain instruments are more im- perative than in others ; and consequently, the re- liance to be placed upon the state of the record is more absolute. In such cases, the purchaser is not bound to look beyond the record for the security of his title, unless he has notice of the title in another. Thus, in Tennessee, it is held that the purchaser does not acquire a perfect title until his deed is re- corded;*^ under such an imperative necessity to record an instrument, in order to perfect the title of the purchaser, and the title being clear upon the record, actual notice, or that which is equivalent to it in certainty, should be required to charge the * Norcross v. Widgcry, ut supra; Harris v. Arnold, 1 R. I., 125; Bush V. Golden, 17 Conn., 594; Spofford v. Weston, 29 Maine, 140; Butler v. Stevens, 26 Maine, 489; Curtis v. Mundy, 3 Metcf., 405; Hennesey v. An- drews, 6 Cush., 170. ' Tuttle t). Jackson, 6 Wend., 213; Troup v. Hurlbut, 10 Barb. S. C, 854; Price t). McDonald, 1 Mayl. R., 414; Webster r. Maddox, 6 Maine, 256; Colby v. Konniston, 4 N. H., 262; Griswold v. Smith, 10 Verm., 452; Bell V. Twilight, 2 Foster, 500. ^ Rogers v. Cawood, 1 Swan., 142; as to principles of constructive notice, see Story's Eq., sec. 399, 400, 400, a, 401, 402, 403, 404, 405, 406, 407, 408 and notes and authorities ; also 2 Fonbl. Eq., B. 3, chap. 3, sec. 1, note (b) ; Sugd. V. and P., chap. 17; Hill on Trustees, 512, notes, and aiithorities cited. ACQUISITION OF PROPERTY. 207 subsequent purchaser. In all cases of this charac- ter, it is the aim of the court to protect the inno- cent ; and whenever it can be certain that one party has sought to take advantage of the other's igno- rance or neglect, the court will be very slow to aid such unjust and fraudulent intention. If their equi- ties are in every respect equal, the court will leave them to those advantages and remedies which courts of law will give them. Lis pendens.— 'Exery person is presumed to be attentive to what is passing in the courts of justice of the state or sovereignty where he resides ; con- sequently a purchase made of property actually in litigation, pendente lite, though for a valuable consi- deration, and without notice in fact, affects the purchaser in the same manner as if he had notice ; and he will be bound by the judgment or decree rendered in the suit.' This rule is counter to the general principle, that only parties or privies to a judgment or decree are bound by it; but it is founded upon a just public policy, for, if the rule were otherwise, alienations might be made during the continuance of the suit, which would defeat its whole purpose.' The filing of a bill and service of a subpoena is a commencement of the lis penderis, although the ser- vice of a subpoena will not be a sufficient com- mencement, unless the bill be filed; for, without » story's Eq., sec. 405, 406; Com. Dig. Ch., 4, c. 3 and 4; 2 Fonbl. Eq., B 2 chap. 6, sec. 3, note (n) ; Sorrell v. Carpenter, 2 P. Wm., 482; Wors- ley V. Earl of Scarborough, 3 Atkyas. 392; Metcalf v. Piilvertoft, 2 V. & Beam, 199; Gaskell v. Durdin, 2 B. &. Beatt., 169. 208 ACTUAL FRAUD, ETC. the bill there will be no notice of the matters in controversy or the claims of the complainant.^ A decree is not, of itself, constructive notice to any except parties and privies to it, and other per- sons are not presumed to have notice of its con- tents.^ But if one who is not a party to the decree has actual notice of its existence, he will be bound by it :^ the same also as to judgments.'* In order to continued notice, there must be a continuance of the litis contestatio ; that is, something must be done to keep the lis in activity, the contest must not be suspended.^ A dismissal of the bill is not a discon- tinuance of the litis contestatio, provided an appeal is taken, since it is a question whether the bill was properly dismissed." ^ ' 1 Vern., 318; Harden v. Bvicklin, 9 Paige, 512; Center v. P. & M. Bank, 22 Alab., 743; Allen v. Mandaville, 26 Mississippi, 397; Hill on Trustees, 511. " Story's Eq., sec. 407; 2 Sug. V. & P., 283, (9 ed). ' 2 Fonbl. Eq., B. 2, chap. 6, .sec, 3, note (n) ; Harvey v. Montague, 1 Vern. R., 57; Davis v. Earl of Strathmore, 16 Ves., 419; Story's Eq., sec. 407; Harvey v. Montague. 1 Vern., 124. * Davis V. Earl of Strathmore, ut supra. ' Kinsman u. Kinsman, 1 R. & M., 617; Landon v. Morris, 5 Sims., 560; Gibler D. Trimble, 14 Ohio, 323; Price i-. McDonald, 1 Maryl'd R., 403. * Grove v. Stackpole, 1 Dow, 31; Watson v. Wilson, 2 Dana, 406. TRUSTS UNDER A POWER. 209 CHAPTEE III. TRUSTS UNDER A POWER. It sometimes happens that a person having prop- erty or money to dispose of, intrusts the disposition thereof to the judgment and discretion of another ; and where the intention of the donor or grantor is to trust entirely to such discretion, because of the confidence he has that such person will do better that he, at the time of making the gift or grant, can dictate, such intention confers a mere power; and equity will not interfere with the execution of it/ But if there is, connected with such gift or grant, a use clearly indicated, either for .the donor, grantor, or for a third party, equity will raise a trust, and use its powers in seeing that it is enforced. The intention of the party making the gift or grant is binding upon the conscience ; and where that inten- tion can be clearly ascertained, there is usually lit- tle difficulty in carrying it out.^ The distinction between a power and a trust has been clearly defined by the court. A mere power ' Story's Eq., sec. 1070; Wynne v. Hawkins, 1 Bro. Ch. R., 179; 2 Mad. Ch. Pr., 6; 2 Fonbl. Eq., B. 2, chap. 2, sec. 4, note (x); Wright i>. Atkyns, 1 Turn. & Russ., 157; Leggett v. Hunter, 19 N. T., 445; Mason v. Jones, 3 Edw., 497; Champlin v. Champlin, 3 Edw., 571. ' Withers v. Teadon, 1 Rich. Eq., 324; Bull v. Bull, 8 Conn., 47; Errick- son V. Willard, 1 N. H., 217; Collins v. Carlisle, 7 B. Monr., 14. 14 210 TRUSTS UNDER A POWER. is not imperative, but leaves the action of the party receiving it, to be exercised at discretion. That is the donor or grantor, having full confidence in the judgment, disposition and integrity of the party, empowers him to act according to the dictates of that judgment, and the promptings of his own heart/ A trust is imperative ; and is made with strict reference to its faithful execution. The trustee is not only empowered, but is required to act in accordance with the will of the one creating the trust.^ But cases frequently arise which do not seem to belong entirely to the one or the other of these classes. Lord Eldon,^ remarked that " there is not only a mere trust and a mere power, but there is also known to the court, a power with which the party to whom it is given is intrusted ; and is required to execute." ^ Such cases arise where the donor has entrusted the party with money or property to be used according to his judg- ment or discretion, for the use of certain persons, or class of persons; but nevertheless to be used for others than himself. The discretion to be exercised on the part of the trustee, is not absolute, but con- fined to the time, the manner, or the particular indi- viduals of a class.* Where, from the language of the instrument con- * Story's Eq., sec. 1061, 1070; Hill on Trustees, 67. » Knight V. Knight, 3 Beav. R., 148, 172, 175; Story's Eq., sec. 1070, and note. » Brown v. Higgs, 8 Ves., 570; Story's Eq., .sec. 1061, (a), 7th ed., and mimerous authorities cited in note. * Brest V. Offlcy, 1 Ch. R., 246; Hoey r. Kenney, 25 Barb., 396. 911 TRUSTS UNDER A POWER. ^^^ ferring the power, or creating the trust, it can be clearly ascertained to have been the intention of the donor, testator, &c. that others than the person intrusted should be entitled to the use of the whole, or a part of the property, although a discretion as to the time when, the mode in which, or the individuals to whom, that use was to accrue is vested in the one intrusted, courts will endeavor, if possible to raise a trust, and enforce the execution of it.' By the term, if possible, is meant, if the subjects and objects of the trust be sufficiently certain to enable the court to execute it according to the intention of the party creating it, they will decree it to be a trust, notwith- standing the discretion reposed in the trustee.' More recently courts are disposed, if possible, to construe all gifts and bequests of this character, as gifts by implication to the objects named or recom- mended in the instrument conferring the power, so that the tendency is to favor the raising of trusts under a power.^ In the examination of cases partaking in part of the nature of a power, and in part of the nature of a trust, it is important to keep in mind the princi- ple, that the intention of the party creating the trust or conferring the power is to govern, and that circumstances which tend to prove that intention ' story's Eq., sec. 1068; Brest v. Offley, 1 Ch. Rep., 246; lUvdmgv. Glyn 1 Atk., 469; Tibbits v. Tibbits, Jac Rep., 317; Massey v. Sherman, Ambl. R., 520; Lewin on Trusts, chap. 5, sec. 2, p. 77, etc; Parsons v. Baker, 18 Ves., 476; Dominick v. Saycr, 3 Sandf., 555. ' Brown v. Higgs, 8 Ves., 576; 2 Sugd. Pow., 179; Hill on Trustees, p. 69. 212 TRUSTS UNDER A POWER. are only valuable for such purpose. An examina- tion of the diverse decisions in these, as in other cases, will show that the courts have often attached too much importance to a certain class of facts, in- dependent of that which those facts tended to establish. It is said that " there appears to be a material dis- tinction between those cases where the absolute in- terest is given to the donee of the power, and where the person by whom the power is to be exercised takes only a previous estate for life, to which the power is only collateral."^ But the distinction goes no further than the evidence thereby furnished of the intention of the donor. The nature and quality of the estate becomes a fact to be considered in con- nection with all other circumstances, and is liable to overrule or be overruled accordingly. The fact that the personal interest of the donee of the power might be against his making any appointment, may be supposed to have been within the knowledge of the donor, and had he intended to have guarded against such personal interest he would have made the appointment imperative. But such fact being within the knowledge of the donor, and yet failing to make the appointment imperative upon the donee, it might very properly be inferred that he intended to make the discretion of the donee absolute.^ The instrument conferring the power may also ' Hill on Trustees, p. 68; Crossling v. Crossling, 2 Cox, 396. ^ See Hill on Trustees, p. 68, and authorities. TRUSTS UNDER A POWER. 213 create a trust, and the trust so created may be made subject to the power thus conferred ; and if the power be exercised, the trust may be modified or defeated thereby, but if not, it may stand/ It is not meant that when a gift is clearly impressed with the character of a trust, that a discretionary power subsequently given, can control its applica- tion ; but a gift may be impressed with such a character, conditioned upon the exercise of a power conferred at the same time/ There are cases where the gift is absolute upon its face, and, although words of recommendation and desire in respect to its use are expressed, they are not imperative, and consequently do not bind the donee.^ But there are cases likewise where the desire, although not expressed imperatively, clearly indicates the intention of the donor or testator to be, that the donee shall not take absolutely, but that a trust shall be created in favor of certain objects. Thus, " where a tenant for life is desired, at his death, to give it amongst his children as he may think fit ; such desire is deemed a sufficient expression of the will and intent of the donor; and, although the tenant fail to designate the par- ticular individuals to whom it shall go, the court will carry out that intent as near as possible, by dividing it among them all equally."^ 'Brown v. Pocock, 6 Sim., 257; Bull v. Vardy, 1 Ves. Jr., 271; 2 Sugd. Pow., 177; Withers v. Yeadon, 1 Rich. Eq., 324. ^ Bull V. Vardy, 1 Ves. Jr., 270; Crossling v. Crossling, 2 Cox, 396; Duke of Marlborough v. Godolphin, 2 Ves., 61; 5 Ves. Jr., 506. ^ Mason v. Limbury, 2 Sugd. Pow., 181; Hoey v. Kenny, 25 Barb., 396. 214 TRUSTS UNDER A POWER. In determining whether a trust is created under a power of appointment, reference must be had to the principles essential to the creation of an express trust, which are, 1. The words creating the trust must be imperative, as distinguished from op- tional or discretionary. 2. The subject of the trust must be certain that the court may know to what it attaches. 3. The objects of the trust must be cer- tain, that the court may know for whose benefit it is intended.^ An application of these principles to cases de- cided, will illustrate them. A testator devised his real estate and negroes to his son, G. W., in trust, 1, to apply the rents, issues and profits, to the use of himself and family, and the education of his child- ren : 2, and to give or devise by deed or will, the said property, and the rents, issues and profits thereof, over and above what he should apply to the uses aforesaid, unto all or any child or children by him, begotten or to be begotten, in such a way and man- ner, and in such proportions, and for such uses, estates and interests, as he shall see fit and proper. G. W. died, leaving a will, by which he devised the whole of his estate to his wife, with directions that his executors, (his wife and sons) should act under his father's will in trust and in every respect and manner intended by their grandfather. ' See what is siifficiently imperative, see note to Lawless v. Shaw, Lloyd & Gould, 154; Wright v. Atkyns, 1 Turn. & Russ., 143; Briggs v. Penny, 8 Eng. L. and Eq., 231; see Story's Eq., sec. 1070, and authorities; Robinson v. Allen, 11 Gratt., 785; Gilbert v. Chapin, 19 Conn., 351; Har- per V. Phelps, 21 Conn., 257- TRUSTS UNDER A POWER. 215 First it is to be noticed, that the estate was given to G. W., in trust. 2. That G. W. was invested with discretionary powers as to whom, of a certain class, were to be the particular objects of such trust ; when, how, in what proportions, and with w^hat estates they were to be invested. But observe, the discretion of G. W. did not extend to the trust itself. Although he had a discretion as to the par- ticular persons, as to the time when, as to mode by which, and as to the quantity of the estate to each, nevertheless the estate was to be used for the benefit of others than himself, making the trust im- perative. Upon this state of facts, the court held, 1. That the legal estate was in G. W., coupled with a power in trust to appoint, at his discretion, among his children. 2. That this power could not be dele- gated,^ and, 3, as G. W. had neglected to exercise the power, his children were entitled to divide the property equally.^ It is to be observed that the discretion or power of appointment can not be delegated to another ; neither will the court exercise it, on the failure of the one to whom it is given to do so; and in all such cases, the whole of the objects who were within the power, will in general take equally.^ The reason 'Alexander v. Alexander, 2 Ves., 640; Kemp r. Kemp, 5 Ves., 849; Penny v. Turner, 2 Phillips, 493; McNeilledge v. Galbraith, 8 S. & R., 43; Withers v. Tcadon, 1 Rich. Eq., 324. ' Withers v. Yeadon, 1 Rich. Eq., 324; see Collins v. Carlisle's heirs, 7 B. Monr., 14; Bull v. Bull, 8 Conn., 47; Gilbert v. Chapin, 19 Conn., 351; Harper v. Phelps, 21 Conn., 257. ' Davy V. Hooper, 2 Vern., 665; Mason v. Limbury, 2 Sugd. Pow., 181; Kemp *. Kemp, 5 Ves., 849; Madison v. Andrews, 1 Ves., 57; Kennedy V. Kingston, 2 J. & W., 431; McNeilledge v. Galbraith. 8 S. & R., 43. 216 TRUSTS UNDER A POWER. for this is, that the class of objects, having been designated as objects of the trust, subject to such discretion in selecting or making appointments as the donee in trust was empowered to exercise, and, having failed to exercise such power, it is the will of the donor or testator, that each individual of the class should take equally. In such cases, courts treat the bequest as a direct gift to the objects speci- fied, in default of the exercise of the power/ In another case,'~ a widow upon her second mar- riage, settled a fund, in trust, for her own separate use for life, and declared that subject thereto, the fund should, " as and when she should think fit or be advised, be settled in trust for the benefit of A., her daughter by her first marriage, and her daughter's intended husband and her children, in such manner and for such rights and interests as should be agreed upon, either previous to or after the marriage of A., with her consent ; and she — the widow — should be at free liberty, and have full power and authority to settle the fund or any part of it in trust for the immediate benefit of her daughter and children ; but if her daughter should not be married in her mother's lifetime, then the fund should be in trust for the daughter's benefit, and a vested interest in her at twenty -one, with a trust over on the death of the daughter without marrying in the lifetime of the mother." In this case the trust was declared, subject to the use of the mother for life, and subject ' 2 Sugd. Pow., 177; Bull v. Vardy, 1 Ves. Jr., 271. » Croft V. Adam, 12 Sim., 639; see Brown v. Pocock, 6 Sim., 257. TRUSTS UNDER A POWER. 217 to certain discretionary powers of the settler, ex- tending to the time, manner, etc., of its enjoyment ; but not extending to the trust itself; therefore, it was properly held by the V. C. of England, that this was a trust for the daughter, her husband and children, subject to certain modifications of their interest by the mother, had she seen fit to have exercised her power/ From the foregoing it becomes evident that a trust will be raised under a power where the dis- cretion does not extend to the trust itself, and where the subject and object of the trust are suffi- ciently certain to enable the court to execute it according to the manifest will of the testator, etc.^ Where an absolute gift is made to a person, ac- companied by expressions indicating a wish on the part of the testator that certain others shall partici- pate in its beneficial enjoyment, courts are strongly inclined to give such an effect to the will as to raise a trust in favor of such beneficial objects. This bias of the court is allowed, that they may give eftect to the supposed intentions of the testator. But care should be had lest the intentions of the testator to invest the donee with a sound discretion in the premises be defeated.'^ In determining cases of this character, the first question to be settled is : Did the testator intend to make the trust impera- ' See preceding note. « Withers v. Yeadon, 1 Rich. Eq., 324; Collins v. Carlisle, 7 B. Monr., 14; McNeilledge v. Galhraith, 8 Ser. & Raw., 43. ' Story's Eq., sec 1069; see Lucas v. Lockhart, 10 Sm. &, M., 466; Hunter v. Stembredge, 12 Gee, 192; Steele v. Levisay, 11 Gratt., 454. 218 TRUSTS UNDER A POWER. tive, or did he intend to invest the donee with a dis- cretion to apply or not to apply the gift as indi- cated by him ?^ The second question is : Are the subjects and objects of the trust sufficiently certain to enable the court to execute it? or in the language of Judge Story,^ wherever, therefore, the objects of the supposed recommendatory trusts are not certain or definite ; wherever the property to which it is to attach is not certain or definite; wherever a clear discretion and choice to act or not to act is given ; wherever the prior dispositions of the pro- perty import absolute and uncontrollable owner- ship ; in all such cases courts of equity will not create a trust from words of this character.^ So likewise uncontrollable power of disposition amounts to an ownership, and does not raise a trust."^ In New York and some other States,'* powers in trust have been very much enlarged and modified by statute. It is provided ^ that when an express trust shall be created for any purposes other than those sjDecified by the statute authorizing the crea- tion of express trusts, no estate shall vest in the * See preceding note. * Equity, sec 1070; See Wynne v. Hawkins, 1 Bro. Ch. R., 179; Har- land V. Trigg, 1 Bro. Ch. R.. 143; Meredith v. Heneage, 1 Sim. R., 542; Moggridge v. Thackwell, 7 Ves., 82; Eade v. Eade, 5 Madd. R., 118; Cur- tis V. Rippon, 5 Madd. R., 434. ' Morice v. Bishop of Durham, Turn. &. Russ., 405; Tallmage v. Sill, 21 Barb., 34; Gilbert v. Chapin, 19 Conn., 351; Harper v. Phelps, 21 Conn., 257; AVilliams v. Williams, 1 Sim. N. S., 358; Webb v. WooUs. 2 Sim. N. S., 267; Thompson v. McKisick, 3 Humph., 631; Ellis v. Ellis, 15 Alab., 296; Hoey v. Kenny, 25 Barb., 396; see French v. Hatch, 8 Foster, 331; Hart v. White, 26 Vt., 260. * Michigan and Wisconsin. ' N. Y. Rev. St., tit. 2, art. 2, sec 58 and 59. TRUSTS UNDER A POWER. 219 trustee. But the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power, shall be valid as a power in trust, subject to the provisions relating to such powers contained in the article on that subject. But in all cases where the trust shall be valid as a power, the lands to which the trust relates shall re- main in, or descend to the persons otherwise en- titled, subject to the execution of the trust as a power. The statute abolishes all powers as they exist by law, and declares that their creation, con- struction and execution shall be governed by the provisions of said article.^ It defines a power to be, " An authority to do some act in relation to lands, or the creation of estates therein, or of charges thereon, which the owner granting or re- serving the power might himself lawfully perform."^ It defines that to be a general power, which autho- rizes the alienation in fee by conveyance, will or charge of the land embraced in the power, to any alienee whatever. But that which designates the particular persons or class of persons to whom the disposition of the lands under the power is to be made ; or where the particular estate or interest to be aliened by conveyance, will or charge, is less than a fee, the power is denominated special.^ These powers are beneficial when no other person than the grantee has, by the terms of its creation, any interest in its execution ; and general powers are in ' Art. 3, R. S., 1846, entitled " Of Powers." " Sec. 74 of chap. 1, tit. 2. ' See's 77 and 78. 220 TRUSTS UNDER A POWER. trust when others than the grantee of such power are designated as entitled to the proceeds, or any portion of the proceeds or other benefits resulting from the alienation of the lands according to the power : ^ and a special power is in trust when the dis- position which it authorizes is limited to be made to any persons or class of persons other than the grantee of such power; or where any person or class of persons other than the grantee are de- signated as entitled to any benefit from the disposi- tion or charge authorized by the power.^ The statute further provides'^ that every trust power shall be imperative, except where its execu- tion, or non-execution, is made expressly to depend on the will of the grantee of the power ; and that equity shall compel its performance. So, also, shall it be imperative when the grantee has the right to select any, and exclude others of the persons desig- nated as the objects of the trust. And, where the disposition is to be made to, among or between several persons, without specifying the share to each, they shall share equally ; But where the terms of the power import a discretion to the grantee or trustee of the power, as to the shares of each, he can allot the whole to any one to the exclusion of the rest. And if he die without making any allotment, equity will apportion it equally among the designated ob- jects. It also provides that where a power in trust is created by will and the testator omits to desig- ' Sec. 94, Art. 3, R. S., entitled "Of Powers." » Sec. 95, ib. ' Sec. 96, ib. TRUSTS UNDER A POWER. 221 nate by whom the power is to be exercised, its exe- cution shall devolve upon a court of chancery. The above are the leading provisions to which express trusts, not authorized by statute, and yet di- recting the performance of that which may lawfully be performed, are subject. Being, by operation of the statute, transmuted to powers in trust, they are to be construed and executed according to the fore- going provisions. They become imperative where they are not made expressly to depend upon the dis- cretion of the trustee, and equity will compel their execution. But in these cases, the legal estate does not pass to the trustee ; but remains in, and descends to the person or persons otherwise entitled, subject to the execution of the trust as a power.^ It is held by the court^ that apoiuer in trust is a mere authority to limit a use, and the legal estate remains undis- turbed. It is provided, however,^ where an absolute power of disposition, unaccompanied by any trust, shall be given to the owner of a particular estate, for life or for years, such estate shall be changed into a fee, absolute in respect to creditors and purchasers ; but subject to any future estates limited thereon, in case the power should not be executed, or the lands be sold for the satisfaction of debts.^ So likewise where the like power of disposition is given to a person to whom no particular estate is limited, he takes a fee ' Sec. 58 and 59, ib. " Farmers' Loan and Trust Co. v. Carroll, 5 Barb., 613. ' Sec. 81, ib; see Tallmadge v. Sill, 21 Barb., 34; Hoey v. Kenny, 25 Barb., 396. <(5r§gBMi __..*;-^ 222 TRUSTS UNDER A POWER. absolute in respect to creditors and purchasers, but subject to any future estates that may be limited thereon ;^ and where no remainder is limited thereon, the grantee takes an absolute fee.'^ It is the same, also, where a general beneficial power to devise the inheritance, is given to a tenant for life or years ; and every power of disposition is to be deemed ab- solute, by means of which the grantee is enabled in his lifetime to dispose of the entire fee for his own benefit.^ Talmadge v. Sill, ut supra; Hoey v. Kenny, ut supra. Sec. 83, ib. Sees. 84, 85, ib. TRUSTS RAISED BY PRECATORY WORDS, ETC. ---^ CHAPTER IV. TRUSTS RAISED BY PRECATORY WORDS, WORDS OF RECOMMENDATION, ETC. It has already been observed that where the sub- ject matter of a trust is definite and certain, where the objects of the trust are clearly pointed out, and where the will of the testator is imperatively ex- pressed in reference thereto, that a trust is thereby created.^ So, also, where the testator has clearly created a trust, but has left the time, manner, and the particular objects thereof to be determined upon at the discretion of the trustee, courts will declare and enforce the trust, even though the trustee should neglect or refuse to exercise such discretionary power .2 But courts go still further, and create im- plied or constructive trusts from mere words of re- commendation, and precatory words of the testator. Trusts created in this way, usually leave it to the free will or discretion of the trustee to determine how, when, and in what manner, the trust shall be executed or paid. This class of trusts are very » See trusts under a power; Malim v. Kcighley, 2 Ves. Jr., 305; Knight V. Knight, 3 Beav., 148; Tibbitts v. Tibbitts, 19 Ves., 664; Wilson V. Major, 11 Ves., 205; Uarrison v. Harrison, 2 Gratt., 1; Erickson r. Willard, 1 N. H., 217; Collins v. Carlisle, 7 B. Monr., 14. " Knight V. Boughton, 11 CI. & Fin., 513; Paul v. Compton, 8 Ves., 380; Harrison v. Harrison, 2 Gratt., 1; Reeves v. Baker, 18 Beav., 372; Lucas ». Lockhart, 10 Sm. 8c M., 400. 224 TRUSTS RAISED BY PRECATORY WORDS nearly allied to those which are raised under a power. The principles by which the trust is de- termined are the same in both cases. In all cases of this character, although an almost unlimited dis- cretion is given to the party becoming trustee, yet if it clearly appear from the language of the testa- tor, and from all the circumstances, that it was his will that such property or any portion of it should be held for the benefit of others specified, a result- ing trust will arise for their benefit. Thus, any words by which such a will is expressed not subject to the absolute discretion of the donee, will be deemed sufficient, if the subject and object be suf- ficiently certain. The words " I desire" — " I will and desire" — " I recommend" — " I hope and trust"-- " Trusting and wholly confiding" — "not doubt- ing" — " in the fullest confidence," etc., — will often be deemed sufficiently imperative to raise the trust .^ Courts, however, have carried this doctrine to very great lengths, and recently are not disposed to ex- tend it. This construino; a mere wish or desire into a peremjDtory command, more frequently defeats the intention of the testator, than carries it out. It » See Brest v. Offly, 1 Ch. Rep., 24G; Harding v. Glynn, 1 Atk., 469; Mogridge v. Thackwell, 7 Ves., 36; Cruwys v. Colman, 9 Ves., 319; Mal- vin V. Keighley, 2 Ves. Jr., 333; Knight v. Knight, 3 Beav. R., 148; Brown v. Higgs, 8 Ves., 570; Parsons v- Barker, 18 Ves., 476; Tibbits v. Tibbits, 19 Ves., 655; Jac. Rep., 317; Massey v. Sherman, Ambl. R., 520; Vernon v. Vernon, Ambl. R., 4; Edes v. England, 2 Vern., 466; Nowlan V. Nelligan, 1 Bro. C. C, 489; Harland v. Trigg, 1 Bro. C. C, 144; Pier- son V. Garnet, 2 Bro.C. C, 38; Birch v. Wade, 3 V. & B., 198; Wright v. Atkins, 1 V. & B., 313; Lewin on Trusts, chap. 5, sec. 2, p. 77, etc., where authorities are collected; Steele v. Levisay, 1 Gratt., 454; Harrison V. Harrison, 2 Gratt., 1. AND WORDS OF RECOMMENDATION, ETC 225 should be presumed that the testator knew the dif- ference between a desire and a command, and used the language with reference thereto. It has been well said, that " the first case that construed words of recommendation into a command made a will for the testator, etc." ^ If the expressions used, when taken in connection with all the circumstances, only confer a power upon the donee, and leave him to do or not to do, to apply or not to apply the gift, ac- cording to the expressed wish of the testator, no trust will be created. Any means or evidence by which it becomes clear that the words of " desire" or "recommendation" were not intended to be obli- gatory upon the donee, will defeat the trust.^ In truth, the effect which expressions of this character are to have in creating a trust, must be determined by the intention of the donor, as gleaned not only from the words themselves, but also from the context and circumstances of the case. Should he declare that his words of recommendation were not to be considered as an injunction, &c.,'' or that the donee, in reference to the objects of his desire and recommendation, was to remain free and mfet- ' Sale V. Moore. 1 Sim. R., 534; see Story's Eq., sec. 1069, and notes and authorities; also Hill on Trustees, p. 72, and authorities; Williams v. Williams, 1 Sim. N. S., 358; Webb v. Woolls, 2 Sim. N. S., 267; Pope V. Pope, 10 Sim. R., 1. ■^ Bull V. Vardy, 1 Ves. Jr., 270; Young v. Martin, 2 Young & Coll. Ch., 582, 590; Brunson v. Hunter's Adm., 2 Hill's Ch., 490; Knott v. Cottee, 2 Phill., 192; Thompson v. McKissick, 3 Humph., 631; Ellis v. Ellis, 'l5 Alab., 296; Skrine v. Walker, 3 Rich. Eq., 262; Pinnock's Estate, 20 Penn. St., 268; 1 Am. Law Reg., 342; Gilbert t'. Chapin, 19 Conn., 351; Harper v. Phelps, 21 Conn., 257. ' Young V. Martin, 2 Y. &. Coll. Ch., 582. 15 226 TRUSTS RAISED BY PRECATORY WORDS tered,^ or that the property was to be at his sole and entire disposal, and the like,^ no trust would be in- ferred however strong might be the language of recommendation or desire merely. It sometimes happens that language accompany- ing gifts and bequests, clearly indicates that a trust was intended ; but owing to the indefinite manner of setting forth the subject of the trust, it cannot take effect; and so the donee holds, discharged of the trust.^ Thus, where a testator bequeathed to his wife all the residue of his personal estate, not doubting but that she will dispose of Avhat shall be left at her death to our two grandchildren. Here the desire that the two grandchildren shall receive what remained unexpended at the death of the wife, was sufficiently certain; but it was equally certain that she was entrusted with the absolute disposal of the property during her lifetime, and, consequently, had the power of determining what that residue, if anything, should be. This right on the part of the wife, is inconsistent with the char- acter of trustee, and therefore no trust could be raised. Hence, the court held that the uncertainty of the subject was such that the recommendatory trust was defeated.* It is laid down as a principle, ' Meredith r. Heneage, 1 Sim., 542, etc; Knight v. Knight, 3 Beavan, 174. * Hoy V. Master, 6 Sim., 568. * Flint r. Hughes, 6 Beavan, 342; Knight v. Knight, 3 Beavan, 173-9; Jackson v. Robinson, 15 Johns., 171 ;; 16 Johns., 586; Jackson v. Bull, 10 John., 19; Ide v. Ide, 5 Mass., 500; Smith v. Bell, Mart. & Yerg., 302. * Wynne v. Hawkins, 1 Bro. Ch. R., 179; see Pushman v. Filliter, 3 Ves., 7; Eade v. Eade, 5 Madd. R., 118; Sale v. Moor, 1 Sim. R., 534; Podraore v. Gunning, 7 Sim. R., 614; Wood v. Cox, 1 Keen R., 317. AND WORDS OF RECOMMENDATION, ETC 227 that where the first taker is empowered to with- draw from the object of the wish, any part of the subject ; or, is left at liberty to apply it to his own use, that such liberty will render the subject- so un- certain as to defeat the trust/ The reason for this principle is, the first taker could not be at liberty to appropriate the property, or any part of it, in such a way as to defeat the recommendation or wish of the testator, unless he was invested abso- lutely with the beneficial interest therein. There- fore when the language is such, that such a right is found to be in the donee, it must necessarily be fatal to the existence of a trust. There should be a distinction made between cer- tain classes of cases which are usually considered as failino- to raise a trust, owing to the uncertainty of the subject thereof. In the case of Bland v. Bland, above cited, where the testatrix gave all her real and personal estate to her son Sir John Bland, his heirs, executors, administrators and assigns, charged with the payment of debts and legacies ; and then »Hill on Trustees, p. 74; Story's Eq., sec. 1070, and note (7 edit.); Knight V. Knight, 3 Beav., 174, and authorities; Bland v. Bland, 2 Cox, 349; Wilson v. Major, 11 Ves., 205; Bull v. Kingston, 1 Mer., 314; Lech- mere V. Lavies, 2 M. & K., 197; Curtis v. Rippon, 5 Madd., 434; Harwood V. West, 1 Sim. & Stu., 387. " 2 Cox, 349; see the opinion of Judge Lowrie, in the case of Pinnock's Estate, 20 Penn. St. R., 268. He declared, as the result of his investiga- tions and reflections, that the words in a will expressive of desire, recom- mendation, and confidence, were words of common parlance, and not technical; and that they were not, prima facie, sufficient to convert a devise or bequest into a trust. That they were only declaratory of a trust when it appeared from other parts of the will that the testator did not intend to commit the ultimate disposal of the property to the devisee or legatee, as his kindness, justice or discretion might dictate. 228 TRUSTS RAISED BY PRECATORY "WORDS added, "it is my earnest request to my son, Sir J. Bland, that, on failure of issue of his body, he will, sometime in his lifetime, settle the said premises, or so much thereof as he shall stand seised of at the time of his death, so, and in such manner as, that, on failure of issue of his body, the same may come to my daughter, and the heirs of her body."^ The Chancellor decided that no trust was created in favor of the daughter, &c., owing to the uncertainty of the subject. Had there been no other principle involved than the uncertainty of the subject, that could have been rendered certain at the time of the decease of Sir John ; and the trust created might have been enforced. But the principle involved in the case, which might have been more decisive of the question, upon more rational grounds was this. By the terms of the will, Sir John was invested with a discretion inconsistent with the character of a trustee in the premises. The language of the will implied that Sir John B., had the absolute title in himself, with the consequent right of disposing of such parts thereof as he might see fit. Hence, although it was true that the subject of the recom- mendatory trust was uncertain, it was nevertheless true, that the right of Sir John to dispose of the subject thereof absolutely, rendered the subject of the trust uncertain. The same principle is appli- cable in the case of Wynne v. Hawkins, where the testator, by his language, " that he desired she * See preceding note. ' 1 Bro. C. C, 179. AND WORDS OF RECOMMENDATION, ETC. 229 should give what should be left at the time of her death" to his children or grandchildren, implied that the absolute right of disposal was in her for her own use and benefit ; consequently the property could not be the subject of a trust for " his children or grand children." So also, where the request is, " that if she die single, she will leave what she has, amongst her brothers and sisters, or their chil- dren;" ^ implying her right to dispose of what por- tion of the property for her own benefit, she might find necessary or think proper ; which right is ab- solutely inconsistent with the existence of a trust. An examination of the cases decided upon the ground that the subject of the trust was insuffi- ciently defined, or too uncertain to enable the court to decree its execution, will show that in many cases the uncertainty arises from the right in the donee to dispose of the property for his own use and benefit, which right in the donee is fatal to the existence of a trust.^ But these recommendatory trusts often fail of ' Lechmere r. Levie, 2 M. & K., 197; see Cowman v. Harrison, 17 Jur., 313; Johnston v. Rowlands, 2 De G. & Sra., 356; Webb v. Woolls, 2 Sim. N. S., 267; Reese v. Baker, 18 Beav., 372. ' Pennock's Estate, 20 Penn. St., 268. In Pennock's Estate the testator, after providing for the payment of the debts, said, " I will and bequeath unto my dear wife A., the use, benefits and profits of all my real estate, during her natural life, and also all my personal estate of every descrip- tion, including ground rents, bank stock, bonds, notes, book debts, goodg and chattels, absolutely, having full confidence that she will leave the sur- plus to be divided, at her decease, justly among my children." Held that the absolute. ownership of the personal property was given to the widow. See Hoy v. Master. 6 Sim., 568; Pope v. Pope, 10 Sim., 1; Curtis v. Rip- pon, 5 Mad., 434; Tallmadge v. Sill, 21 Barb. 34; Hoey r. Kenny, 25 Barb., 896. 230 TRUSTS RAISED BY PRECATORY WORDS taking effect, because the objects of the trust are so indefinitely expressed or defined that the court can- not ascertain with certainty the intention of the testator. The reason for this uncertainty in setting forth the objects of the testator's benevolence is probably owing to the uncertainty existing in the testator's mind at the time of making his bequests. Having confidence in the understanding, judgment, fidelity and good purposes of the donee, the testator commits his property and wishes into his hands to be used as his judgment, under all circumstances, may dictate. In all such cases the court does well to leave it where the testator places it, in the hands of the donee. But if the language of the testator is sufl&ciently explicit to enable the court to see his wishes carried into effect, they will not permit the donee to defraud the objects of the testator's solici- tude by appropriating the means to his own private or personal use. As it is, courts are strongly in- clined to see that the particular wishes of the testa- tor, in respect to these objects of recommendation, are carried into effect. And, although it is a prin- ciple in the creation of trusts that the object of the trust must be certain and definite to enable the court to see it executed, courts will go a great way to aid the trust, by endeavoring to ascertain the ob- jects. Referring to such objects as a class, where the particular persons of the class can be deter- mined, will be deemed sufficient.^ Thus, where > Mason r. Limbury, cited Ambl., 4; Massey v. Shearman, Ambl., 620; Malim v. Knightley, 2 Ves. Jr., 333; Pierson v. Garnet, 2 Bro. C. C, 38, 226; Parsons v. Baker, 18 Ves., 476; Stanger v. Nelson, 20 Jurist, 27; 2 Sugd. Pow., 181. AND WORDS OF RECOMMENDATION, ETC. 231 certain portions of an estate are to be equally divided between his brother's and sister's children/ or where there is a gift to the wife for the support of herself and family,^ the objects of the trust were deemed sufficiently certain. The principle would seem to be, that where the reference to the class is such that the individuals composing the class can be individually determined and separated from all others, the designation is sufficient. Thus the term "family," " families,"^ "all the testator's cousins,'"* " relations,"^ " descendants," &c., have been held to be a sufficient designation of the objects of such trusts. The same principles are applicable to classes as objects under recommendatory trusts as are to ob- jects under powers. Where a gift is in trust for such individuals of a certain class, as the donee, in his discretion, shall appoint ; and the donee fails to appoint, all the individuals of the class take equally. So under a recommendatory trust; if it be for such of a class as the donee shall appoint, and he fails to appoint, each of the class takes equally.^ * Barnes v. Patch, 8 Ves., 604. « Wood V. Wood, 1 M. & Cr., 408; Gregory v. Smith, 9 Hare, 708. ^ Barnes v. Patch, ut supra; Wood v. Wood, ut supra. * Stanger v. Nelson, 20 Jurist, 27. * Pierson v. Garnet, 2 Bro. C. C, 38; Harding v. Glynne, 1 Atlv., 469; Birch V. Wade, 3 V. & B., 198. « Birch V. Wade, 3 V. & B., 198; Brown v. Higgs, 4 Ves., 708; Cruwys V. Colman, 9 Ves., 319; Longmore v. Broom, 7 Ves., 124. 232 TRUSTS FOR CHARITABLE PURPOSES. TRUSTS FOR CHARITABLE PURPOSES. The term Charity, as used in an equitable sense, does not import simply relief to the poor and needy ; but rather a gift to a general public use, including the rich as well as the poor.^ There has been much discussion among the profession whether these trusts for charitable purposes have their origin in the stat- tute 43 Elizabeth, or whether they were of that class of which Chancery, under the common law, had juris- diction previous to that statute. This question is learnedly discussed by Judge Story in his Equity Jurisprudence,^ and he concludes : " Upon the whole, it seems now to be the better opinion that the juris- diction of the Court of Chancery over charities, where no trust is interposed, or where there is no person in esse capable of taking, or where the charity is of an indefinite nature, is to be referred to the general jurisdiction of the Court of Chancery, ante- rior to the statute of Elizabeth." He says "this opinion is supported by the preponderating weight of authorities speaking to the point, particularly those of recent date," as well, also, as the language of the statute itself.'*^ The statute 43 Elizabeth is introduced by reciting » Jones V. Williams, Ambl., 652; Morice v. Bishop of Durham, 9 Ves., 405; Franklin v. Armfield, 2 Snead., 305. *Sec. 1136 to 1162; see Incorporated Society v. Richards, 1 Con. and Law. R., 58, S. C. P.; 1 Daury & War., 258. ' Story's Eq., sec. 1162; see judgment of Justice Baldwin in the Circuit Court of Penn., April Term,J833, in case of will of Sarah Zane; Vidal, &c., r. Girard's Executors, 2 Howard's S. C. R., 127; 1 Cooper's Public Records, 355, Calendar of Proceedings in Chancery. TRUSTS FOR CHARITABLE PURPOSES. 233 that lands, goods, money, etc., had been given, etc., heretofore to certain purposes — enumerating them — which lands, etc., had not been employed according to the charitable intent of the givers and founders, by reason of frauds, breaches of trusts, and negli- gence of those that should pay, deliver and employ the same. The statute then provides that it shall be lawful for the Lord Chancellor to award commis- sions under the great seal, to proper persons, to enquire by juries of all such gifts, etc., and of breaches of trusts, etc., in respect to the same, which have been heretofore or w^hich may hereafter be given to, or for any such charitable or goodly uses before rehearsed, etc., and upon such hearing they were to set down such orders, judgments and decrees, as the lands, goods, moneys, etc., may be faithfully employed to and for such charitable uses, etc., for which they were given; w^hich orders, etc., not being contrary to the orders, statutes and decrees of the donors and founders, shall stand firm and good, according to the tenor and purpose thereof, and shall be executed accordingly, until the same shall be undone and altered by the Lord Chancellor, etc., upon complaint by any party grieved, to be made to them, etc. The uses described as good and char- itable by that statute are as folloAvs: "For relief of aged and impotent, or poor people ; for maintenance of sick and maimed soldiers, schools of learning, free schools, scholars in universities, houses of correction; for repairs of bridges, of ports and havens, of cause- ways, of churches, of sea banks, of highways ; for education and preferment of orphans, for marriage 234 TRUSTS FOR CHARITABLE PURPOSES. of poor maids, for support and help of young trades- men, of handicraftsmen, of persons decayed; for redemption or relief of prisoners or captives, for care and aid of poor inhabitants, concerning payment of fifteenths, setting out of soldiers and other taxes."* Although the court of chancery exercised juris- diction over charities anterior to the statute of 43 Elizabeth, and although it is now held, both in Eng- land and the United States, that chancery has ori- ginal jurisdiction in such cases." yet, since that statute, no bequests are deemed within the authority of chancery, capable of being established and regu- lated thereby, except bequests for those purposes which that statute enumerates as charitable, or which, by analogy, are deemed to be within its spirit and intendment.^ It is not necessary however that the gift, etc., shall be within the letter of that statute, if it be within the spirit and intendment. Thus, gifts for diffusing the Protestant tenets of the christian religion, and promoting public worship according to those tenets, and for providing for its ministers, &c. ; bequests for the advancement of the christian religion among infidels,"* for the support of dissenting ministers in England f for the support of >2 Fonb. Eq., B. 2, pt. 2, chap. 1, sec. 2, note (6). 'Potter V. Chapin, 6 Paige, 649; Vidal v. Girard's Exec, 2 How. 196; The Incorporated Society v. Richards, 1 Connor & Lawson, R., 58 and S. C, 1 Dnr. & War. R., 258; see also 1 Cooper's Pub. Rec, 355, Calendar of Proceedings in Chancery. ' Story's Eq., sec. 1155; Nash. v. Morley, 5 Beav. R., 177; 2 Roper on Legacies, chap. 19, sec. 1, p. Ill, 112. * Att. Gen. v. College of William & Mary, 1 Yes. Jr., 245. "Waller v. Childs, Ambl., 624; West v. Shuttleworth . 2 M. & K., 696. TRUSTS FOR CHARITABLE PURPOSES- 235 a preacher of a certain chapel ;' for the repairing of parsonage houses^- For the building of a church,^^ for the augmentation of poor vicarages ;* for paying off an incumbrance on a licensed meeting house f for the support of a burial ground f for maintaining a preaching minister/ or for a Protestant dissenting chapel f for the building of a session house for a city or county f the making of a new or the repair- in- of an old pulpit f or the buying of a pulpit cloth or cushion ;^^ or the setting up of new bells where none are; or amending them where they are out of order/- So a devise of money to a minister to preach an annual sermon, and keep a tomb stone and inscription in repair/^ or for the vicar or curate of a certain place for preaching an annual sermon on a certain day ;^=' or to the singers sitting in the gallery of a certain church, to be paid on a certain day,'' or for benevolent and charitable purposes, with recommendation to apply it to domestic servants-;'^ "Grieves v. Case, 4 Bro. C. C, 67; Att. G Att. Gen. v. Ileelis, 2 S. & St., 77. ^ Thomas r.Ellmaker, 1 Parson's Eq., .108; bright .. L>nn, 9 Barr., 433; Penfield v. Skinner, U Verm., 296. s Babb V. Reed, 5 Rawl., 131. * Duke .. Fuller, 9 N. Ilamp., 538; Volgen .. Yates, 3 Barb. Ch., .90. : MoI::';.'Bthop of Durham, Turn. ^ Russ., 405; also 10 Ves 540, 641; Story's Eq., sec. 1156; Trustees of Baptist Assoeut.on .. Har^ Ex- ecutors, 4 Wheat., 1, 33, 39, 43 and 45; Gallego v. Att. G.n., 3 Lei.h., 450; Wheeler v. Smith, 9 Howard, 55. 238 TRUSTS FOR CHARITABLE PURPOSES. by which cases are decided to be charitable since the Statute of Elizabeth, is that they must come Avithin the letter or spirit of that act.^ The deci-- sions in the United States respecting the validity of devises, etc., to charitable uses, is briefly set forth in note (1), Hill on Trustees, p. 133.^ In cases of in- dividuals, where a trust is clearly created, but the ' Story's Eq., sec. 1155; Nash v. Morley, 5 Bear., 177, etc. " " Where the principles of the statute of Elizabeth are in force in the United States, considerable latitude of construction has been adopted with regard to the certainty requisite in the description of the intended objects of charity. Thus, a devise of property to the cause of Christ for the benefit of true evangelical piety and religion, which was to be distributed in such divisions, and to such societies, and religious and charitable purposes as the trustees might think just and proper." Going v. Emery, 16 Pick., 107. Also a bequest to the treasurer for the time being of the American Bible Society, or of any other charitable association, for the use and purposes of said society : Burr v. Smith, 7 Verm., 241. So, likewise, a bequest of money to a church, to be laid out for bread yearly, for ten years, for the poor of the congregation : Whitman v. Lex, 17 Ser. St R., 88. Also a de- vise to the poor of a particular county, or parish, or town : State v. Girard, 2 Ired. Eq., 210; Overseers v. Taylor, Gilmer, 336; Shotwell v. Mott, 2 Sandf. Ch., 46. So also a devise to be applied to the dissemination of the gospel at home and abroad : Att. Gen. v. Wallace, 7 B. Monr., 611. A bequest to the New York Yearly Meeting of Friends, called Orthodox, for the use of its ministers in straitened circumstances : Shotwell v. Mott, 2 Sandf. Ch., 46. A devise of real and personal estate to an unincorporated religious association, to be applied as a fund for the distribution of good books among poor people in the back part of Pennsylvania, or for the sup- port of an institution or free school in or near Philadelphia : Pickering v. Shotwell, 10 Barr., 23; and a residuary devise to the poor and needy, father- less, etc., of two townships named ; Urmy's Ex'rs v. Wooden, 1 Ohio, St. N. S., 160; have all been supported as against the heir at law, or next of kin. So, likewise, school and educational purposes generally have been held to be charitable. See Vidal v. Girard, 2 How. S. C, 127; Wright v. Linn, 9 Barr., 433; Hadley v. Hopkins Academy, 14 Pick., 240; State v. McGowan, 2 Ired. Eq., 9; Griffin v. Graham, 1 Hawks., 96. So also of a legacy to a town for town purposes : Coggeshall v. Pelton, 7 J. C. R., 292, though see Wheeler v. Smith, 9 How. U. S., 55. So, likewise unincorpo- rated fire companies and charities : Magill v. Brown, Bright. Rep., 350; Thomas v. EUmaker, 1 Par., 98. TRUSTS FOR CHARITABLE PURPOSES. 239 object is uncertain, it cannot be executed, and, con- sequently, the property is considered as undisposed of, and must go to whom the law gives the owner- ship. But if the object be " charity," the trust shall not fail. The particular mode of executing the trust will be directed by the king in some cases, and by the court in other cases/ The principle is this, where there is a general charitable purpose, not fixing itself upon any particular object, the dis- position is in the king by his sign manual; but when the disposition is to trustees, with general objects, or some objects pointed out, Chancery will see the trust executed.'^ That class of cases where the disposition is in the king by his sign manual, would fail in the United States, unless the legislature should interefere.^' In determining these cases, the following ques- tions may be considered : 1. Is a charity, according to the letter or spirit of the Statute 43 Elizabeth, intended; and is there a trust created for such cha- ritable purpose? 2. Is the object sufficiently de- fined to enable the court to undertake the execution of the trust ? ' In England if there is clearly a trust for " general charity," and yet the gift is so indefinite that it cannot be executed by the court, or if its purpose > Moricc V. Bishop of Durham, Turner & Russ., 435. 'Ommanny r. Butcher, Tur. & Russ., 269; Moggridge v. Thackwell 7 Ves., 36, also 1 Ves. Jr., 464; Owens v. Missionary Society, 14 N. T. R., 380 => Willard's Eq., 580, also 596, quotes N. Y. Laws. 18 Sess., chap. 29, 2 \V Gl)stGr * Morice f. Bishop of Durham, 9 Ves., 399, and also 10 Ves., 522. 240 TRUSTS FOR CHARITABLE PURPOSES. be illegal or impossible, the trust is executed by the king under his sign manual.^ In all such cases in the United States, the gift must fail, unless the legis- lature interfere, because we have no magistrate clothed with the prerogative of the crown.^ Where the bequest is clearly charitable in a gen- eral sense, that is, when the general intention of the testator in making the bequest is charitable, uncertainty as to the persons or objects, or as to the mode of executing the trust, will not avoid it.^ The substantial intention being charity. Equity will not permit it to fail because the formal intention as to the mode cannot be accomplished. A Court of Equity will sustain a bequest for charity, and give it effect according to its own principles, whether the persons who are to take are in esse or not, or whether the legatee be a corporation, capable in law of taking or not ; or whether the bequest can be exactly car- ried into effect or not, according to the mode of the testator.* Where a literal execution of the trust becomes inexpedient or impracticable, the court will 'Da Costa r. Da Paz, Ambl., 228, S. C. 2 Su., 487; Gary v. Abbot, 7 Ves., 490; West v. Shuttleworth, 2 M. & K., 697. " Willard's Eq., 580, Williams r. Williams, 4 Seld., 525; Ayres v. Meth. Ep. Church, 3 Sandf. S. C. R., 351; Andrew v. N. Y. Bible & P. B. Society, 4 Sandf. S. C. R., 178. = Story's Eq., sec. 1181, also 1169; Mogridge v. Thackwell, 7 Ves., 36; Mills V. Farmer, 1 Meriv. R., 55; Whitman v. Lex, 17 S. & R., 88; Mayor and Corporation of Philadelphia v. Elliott, 3 Rawl. R., 170; Zimmerman V. Anders, 6 Watts & Serg., 218; Am. Bible So. v. Wetmore, 17 Conn. Rep., 181; Inglis v. Sailor's Snug Harbor, 3 Peters' Rep. 99. * Story's Eq., sec. 1169, also 1181; Gower v. Mainwaring, 2 Ves., 82-89; Winslow r. Cummings, 3 Cush.,365; Tucker v. Searaans, 7 Met., 195; Chapin v. S. District, 35 N. 11., 445; 2 Kent's Com., 287, and note (a) 9th edit; Zimmerman v. Anders, ut supra; see 9 Ves., 399. TRUSTS FOR CHARITABLE PURPOSES. 241 execute it as nearly as it can according to the ori- ginal purpose. Hence arises the cy pres doctrine of the court.^ ^ Charities are more highly favored in Equity than private legacies, as will be seen by the liberal con- struction of the courts in favor of charitable bequests. Thus, the same words applied to individuals in wills often require a very different construction when applied to charities. If a testator should give his property to such person as he should hereafter name to be his executor, and should name no one, the bequest would fail, and he would be considered intestate ; but if the like bequest should be made to charity, the court would supply the executor, and carry the bequest into effect."' The same result would follow, should the testator appoint an executor who should die in his life time, and he should appoint no other. The court would carry out the charitable intention of the testator by supplying the place of the executor, and carrying into effect the bequest.^ Upon the same principle, if the estate is devised to such person as the executor shall name, and no executor is appointed, or if the executor, being appointed, should die in the life time of the testator, and he should appoint no other, the bequest would fail. But if the bequest be for general charity under the like circumstances, it would be good, and the court would assume the office and execute the ' Story's Eq., sec. 169. " Mills V. Farmer, 1 Meriv. R., 55-96; Moggridge r. Thackwell, 7 Yes., 36; Att. Gen. v. Jackson, 11 Yes., 365; Chapin v. School District, 35 N. H., 445; but see Owens v. Mis. So. of M. E. Ch., 14 N. Y., 380. IG 242 TRUSTS FOR CHARITABLE PURPOSES- trust/ So likewise if the trustees of a general char- ity should all die during the life time of the testator, the legacy would not lapse, as in case of individuals, but would be enforced in Equity.^ These decisions proceed upon the principle that it is the duty of the court to give effect to the ge?i- eral intention of the testator. And where that gen- eral intention is charity, the court will not permit mere matters of form to defeat it.^ Thus, in car- rying into execution a bequest to an individual, the manner in which the legacy is to take effect is ma- terial ; but it is otherwise in cases of general charity. Charity is the substance ; and if the particular mode of executing it fail, the court will provide an- other mode by which it may be executed.* So, likewise, where the mode is uncertain, or where no mode is pointed out, the court will supply the de- fect, rather than permit the general charitable pur- pose of the testator to fail.^ ^ See preceding note. ' Att. Gen. v. Hickman, 2 Eq. Cas. Abr., 193; Moggridge v. Thackwell, 3 Bro. Ch. Cas., 517; S. C, 1 Ves. Jr., 464; 7 Ves., 36; McCord v. O'Chil- tree, 8 Blackf., 22; Winslow v. Cummings, 3 Gush., 365; Brown v. Kel- sey, 2 Cush., 243; White v. AVhite, 1 Bro. Cii. Cas., 12; Cliapin v. Scliool District, ut supra. ' Cresson's Appeal, 30 Ponn. St. Rep., 437; Fink v. Fink, 12 La. An., 301; Domestic and Foreign Mis. Soc's Appeal, 30 Penn. St. Rep., 425. '' Story's Eq., sec. 1167; Mills v. Farmer, ut supra; Moggridge v. Thack- well, ut supra; Att'y Gen. v. Berrymau, 1 Dick, 168; Att'y Gen. v. Iron- mongers' Co., 1 Craig & Phil., 208, 222, 225; S. C. 2 Beav., 313; Att'y Gen. V. The Coopers' Co., 3 Beav., 29; Att'y Gen. v. Drap. Co., 2 Beav. R., 508. "Mills V. Farmer, ut supra; White v. White, ut supra; Moggridge t». Thackwell, \d supra; see Att'y Gen. v. Sydcrfln, 1 Ver., 224; S. C 2 rrem.261. / TRUSTS FOR CHARITABLE PURPOSES. 243 In pursuance of the same general principle, the court will endeavor to execute the charitable inten- tion of the testator even where the objects to which it is to be applied are uncertain. They hold the substantial intention to be charity: and therefore, the court is substantially executing that intention, even though it cannot do it in the particular mode or form directed by the testator.^ Thus, where there was a bequest to the governors of a society for the "increase and encouragement of good servants," and no such society could be found, it was held that the gift was charitable, and therefore it should not fail.' So, likewise, a devise to an existing corpora- tion by 1 misnomer, being charitable, is good in equity.' Upon the same principle, where the objects of charity named are impossible, the court will or- der a new scheme to execute it.=^ This may be the case where the objects named never existed or have ceased to exist. In such cases the court will make a cy pres application of the funds."^ But, where the objects named may, though they do not at present exist, the court will reserve the fund while such possibility continues.'' In pursuance of the same principle, courts will 'Liscomb V. WinteriDgham, Eng. Law and Eq. R., 164; see Att'y Gen. V. Earl of Wiuchelsea, 8 Bro. Ch. R. 373; White v. White, 1 Bro. Ch. Cas. 12; 1 Congregational Society of Sonthington t). Atwater, 23 Conn., 56. 'Anon, 1 Ch. Cas., 267; Att'y Gen. v. Plat. Rep. Temp. Finch, 221; Minot V. Boston Asylum, 7 Metc'f, 417; also, Tucker v. Seaman's Aid Society, 7 Met., 188; Winston v. Cummings, 3 Cush., 359. = Story's Eq., sec. 1170. * Att'y Gen. v. City of London, 3 Bro. Ch. Cas., 171, S. C 1 Ves. Jr.; 24^3; Att'y Gen. v. Ironmongers' Co., 2 Beav. R., 313, S. C. 1 Craig& Phil., 508, 522. •Att'y Gen. v. Oglander, 3 Bro. Ch. Cas., 160. 244 TRUSTS FOR CHARITABLE PURPOSES. aid defective conveyances for the purpose of execu- ting the charitable intentions of the donor/ But in all these cases the court acts upon the principle of giving effect to the general intention of the testator or donor. It is, therefore, necessary that such gen- eral intention be found to have existed, before the court will attempt to give it effect. If, therefore, it clearly appear that the testator had a particular object in mind, and no other, and that purpose can- not be answered, the charity must fail, and the next of kin will take.^ It therefore follows, that where a general charitable intention in the testator or donor cannot be found, and where the objects of the par- ticular charity are uncertain, indefinite or impos- sible, the trust cannot be enforced, and the fund must take the direction the law gives it. Upon this principle, when the testatrix bequeathed the residue of her personal estate to the Bishop of Durham to dispose of the same to such objects of " benevolence and liberality as the Bishop in his own discretion shall most approve," and appointed him her executor, the residuary bequest was held to he void upon the ground that the objects of " be- nevolence and liberality" were not necessarily charitable.^ The language must be such as obliges * Att'y Gen. v. Rye, 2 V«rn., 453; Att'y Gen. v. Burdet, 2 Vern., 755; Mills V. Farmer, 1 Meriv. R., 55; Duke on Char, uses, 84, 85; Bridgman on Duke on Charit., 355. " Att'y Gen. r. Ilurst, 2 Cox, 3-54, 365; Corlyn v. French, 4 Ves., 419, 433. ^ Morice v. Bishop of Durham, Turn. & Russ., 405; S. C, 10 Ves., 540, 541; also 9 Ves., 399; Trustee Baptist Association v. Hart's Executors, 4 Wheat., 1, 33, 39, 43 to 45; Wheeler v. Smith, 9 How., 55; Story's Eq., .sec. 1156; see Kendal v. Granger, 5 Bcav., 300; Owens v. The M. S. of M. E. Church, 14 N. T., 380. TRUSTS FOR CHARITABLE PURPOSES. 245 the trustee to make a charitable use of the trust according to the bequest. Hence, " liberality and benevolence " are not sufficiently definite : not but they might include charity; but were they other- wise applied, could they be controlled by the court? As it is a maxim, that the execution of a trust shall be under the control of the court, it must be of such a nature that it can be ; that its administration can be reviewed by the court, and if the trustee die, the court can execute it ; or if there be mal-administra- tion, the court can reform it, and direct the due administration of it.^ Upon the same principle it was held that the words, "if there is any money remaining I should wish it to be given in private charity," '^ were not sufficiently definite to create a trust. In this case, equal legacies had been given the executors, and the question before the court was, whether the executors, the crown, or next of kin were entitled to the residue. The court re- marked : Had the " private charity " clause been omitted, the executors would have been trustees for the next of kin, because there never had been a case where the executors had taken the residue for their own use, where they had themselves received equal legacies. Next, as between the next of kin and the crown, where there is a general charitable purpose, not fix- ing itself upon any particular object, the disposition is in the king by his sign manual. But it did not ' See preceding note. ^ Ommany v. Butcher, Tur. & Russ., 261, 269, etc; Owens v. The Mis- sionary Society of the M. E. Ch., 14 N. Y., 380. 246 TRUSTS FOR CHARITABLE PURPOSES. belong to the king, because it was not a charity. It could not be executed by the court for it was not sufficiently definite, and a trust had been created, therefore it must go to the next of kin. Upon the like principles the following bequests have been held void as charitable gifts. " For be- nevolent purposes." ^ "For charitable or other pur- poses." '^ " For benevolent, charitable and religious purposes." ^ " For charitable or public purposes," or "to any person or persons" in the discretion of his executors.'^ So likewise a gift for " schools of art," is held not to be a charitable purpose within the statute.^ So likewise a gift of a residue to trustees to be applied by them for the relief of do- mestic distress, assisting indigent but deserving individuals, or encouraging undertakings of general utility in such modes and proportions as their own discretion might suggest, cannot be supported as a charity because the alternative objects render the trust too indefinite to be executed by the court.^ The general rule is this : Cases are not charitable unless the testator has used that word to denote or designate his general purpose, or has specified some particular purpose which the court has determined ' James v.. Allen, 3 Mer., 17. « Ellis e. Selby, 7 Simons, 352; and 1 Mylne & Or., 286. " Williams v. Kershaw, 5 Law J. Rep.. N. S., Chanc, 84. * Vesey v. Jansen, 1 Sim. & Street, 69; for this class of cases see Duke on Char. Us., by Bridgman; Com. Dig. Char, uses; Roper on Legacies, by White, chap. 19, sec. 1 to 5, p. 109 to 164; 2 Fonbl. Eq., B. 2, p. 2, chap. 1, sec. 1, note (6). » Duke Char. Uses, 128. • Kendall v. Granger, 5 Beav., 300. TRUSTS FOR CHARITABLE PURPOSES. 247 to be charitable in its nature, so as to fix a chari- table purpose and intent upon the testator. Where the objects of the trust or the purposes to which the testator intends his charity to apply are illegal, the application will not be made ; but if the testator has shown an intention to give to charity generally, there will be a cy pres application of the funds f and this general intention must be gathered from the entire will in every case, as no general rule can be laid down.^ If the gift for charity be special, and a general charitable intent cannot be found, and the object declared be illegal, the charity will fail, and a resulting trust for the heir or next of kin will be created ;'* but if the gift create a gen- eral trust for charity, the particular purpose being superstitious or illegal, will not affect the validity of the general trust; but the duty of appropriating the amount, cy pres, in England, devolves on the crown ; in the United States, may be exercised by the legislature.^ ' Moris V. Bishop of Durham, Tur. & Russ., 405; 9 Ves., 399; 10 Ves. 540, 541. ' 'Att'y Gen. v. Green, 2 Bro. C. C, 492; Da Costa v. Da Paz, Ambl., 228; Att'y Gen. v. Baxter, 1 Vern., 848; Alt'y Gen. v. Guise, 2 Vern, 266; Martin v. Margham, 14 Simons, 230. * As to what is deemed a cliaritable intent see these cases note from Hill on Trustees, 452; Att'y Gen. v. Bishop of Oxford, 1 Bro. C. C, 444; S. C. 4 Ves., 431; Att'y Gen. v. Goulding, 2 Bro. C. C, 427; Grieves v. Case,' 4 Bro. C. C, 67; 1 Ves. Jr., 548; Att'y Gen. v. Whitchurch, 3 Ves., 141; Corbyn V. French, 4 Ves., 418; Att'y Gen. v. Davies, 9 Ves., 535; Att'y Gen. V. Hinxman, 2 J. & W., 270; De Themines v. De Bonneval, 5 Russ., 288; West v. Shuttleworth, 2 M. & K., 684, 698; Att'y Gen. v. Grocers' Co., 12 Law Jour. N. S., Chanc, 196; 6 Beav., 526. * West V. Shuttleworth, ut supra ; De Themines v. De Bonneval, wf supra. ' Willard's Eq., 580; Ayers v. The Meth. Epis. Ch.; 3 Sandf. S. C. R., 351; Andrew v. N. Y. Bible and Prayer Book Soc, 4 Sandf. S. C. R. 178. 248 TRUSTS FOR CHARITABLE PURPOSES. It has been claimed that a " pious use " cannot be sustained by a court of justice in a country where the truths of religion have not been settled and de- fined by law, or where the judges have not the dis- cretionary power to determine and declare them. The judge, in the case of Andrew v. The New York Bible and Prayer Book Society,^ held, "that under a Constitution which extends the same protection to every religion, and to every form and sect of re- ligion, which establishes none and gives no prefer- ence to any, there is no possible standard by which the validity of a use as 'pious' can be determined." That " there are no possible means by which judges can be enabled to discriminate between such uses as tend to promote the best interests of society, by spreading the knowledge and inculcating the prac- tice of true religion, and those which can have no other effect than to foster the growth of pernicious errors, to give a dangerous permanence to the reve- ries of a wild fanaticism., or encourage and perpetu- ate the observance of a corrupt and degrading superstition." But this reasoning of the court was fallacious, because the principles upon which it was based were fallacies. A couit does not endorse the theological opinions of the Methodist, Episcopalian, the Presbyterian or Catholic, by sustaining a gift as a charity to such denominations. The court does not try the ''validity of a pious use^' by the legal orthodoxy of the sect for whose benefit it is given ; and Judge Willard well remarks,^ " The only limit '4Sandf. S. C. R., 178. « Willard's Eq., 577-596; Miller v. Gable, 2 Denio, 524. TRUSTS FOR CHARITABLE PURPOSES. 249 to toleration is at a point where licentiousness, or practices inconsistent with the peace and safety of the state commence ; and it is the province of the court to determine, incidentally indeed, but no less decisively, when that point has been reached." The like principle is sustained in the case of Williams V. Williams.^ A religious denomination whose essen- tial tenets inculcated practices prohibited by the laws of the state, as bigamy, by the Mormons, would not probably be encouraged ; and a gift for the pur- pose of promulgating such tenets, would most prob- ably be deemed illegal.^ The doctrine of charities in the United States is substantially the same as in England, in all that class of cases where they can be administered by the court without the aid of the crown f and in that class of cases where the sign manual of the king is necessary, the gift would fail, and a trust would result to the heir at law or next of kin, unless the legislature interfere to give it effect/ The general law of pious and charitable uses has been declared to be in force in the United States in those cases where gifts and devises are made to trustees capable of taking the legal estate, and the objects of the trust are definite ;* as devises for the support of the poor of a town,^ or for the 14 Selden N. Y. Ap'ls, p. 525. 'See Terrett v. Taylor, 9 Cranch, 43; Andrew v. N. Y. B. and P. B. Society, 4 Sandf. S. C. R., 184; Willard's Eq., 578. 'Will. Eq., 579; Vidal v. Girard's Executors, 2 How., 127; Ingles v. Trustees of Sailor's Snug Harbor, 3 Peter's R., 99; Executors of Burr v. Smith, 7 Vert., 241; Going v. Emery, 16 Pick. 107; McCarty v. The Orphan's Asyl., 9 Cowen, 437. * Will. Eq., 596; 4 Kent's Com., p. 508. * Williams v. Williams, ut supra; Shotwell v. Mott, Sand. Ch. R., 46. 250 TRUSTS FOR CHARITABLE PURPOSES. benefit of an unincorporated religious society,^ or for the support of the minister of a church and his suc- cessors in office,^ or for the maintenance of a school, or for the erection of a hospital.^ Courts of Equity disclaim all rights to interfere with the religious beliefs of any person, or to pre- vent the full enjoyment, by every citizen, of all the rights of conscience secured by the Constitution. They act upon the principle that the will of the testator shall be carried out as far as possible, con- sistent with the proper application of those rules of law which govern in the state. Consequently, they will not permit funds devoted to a particular charity by the testator to be devoted to other objects, even if those for whose use it was given should concur in such diversion.^ So also where property is conveyed to a religious society or corporation to promote the teaching of particular religious doctrines, on proper application the court will interfere to prevent a diversion of those funds for the purpose of teaching different doctrines; and it is no defence to set up that the deviation from the faith or doctrine to which the property is devoted is sanctioned by a majority of the society.^ " In every case of charity," said Lord ■ Shotwell V. Mott, Sand. Ch. R._ 46; Williams v. Williams, ut supra. " Dutch Church v. Mott, 7 Paige 77. ^ Fink V. Fink, 12 La. An., 301. * Miller v. Gable, 2 Denio, 492, 541; S. C. 10 Paige, 627; Kinskern v. Lutheran Church of St. Johns, 1 Sandf. Ch. R., 439; Field v. Field, 9 Wend., 394; Robertson v. Bullions, 9 Barb,, 132, " Miller v. Gable, 2 Denio, 492; Mann v. Ballet, 1 Verm., 43 j Att. Gen. V. Gleg, 1 Atk., 356; App. v. Lutheran Cong., 6 Barr., 201. TRUSTS FOR CHARITABLE PURPOSES. 251 Lyndhurst, " whether the object of the charity be directed to religious purposes or those purely civil, it is the duty of the court to give effect to the intent of the founder, provided this can be done without infringing any known rule of law." ^ Where a testator makes a gift to general or special charity, and desig- nates as the object the inculcating of certain reli- gious tenets by a certain society or corporation, it is evident that the gift is for the benefit, not of the individuals themselves, but of the cause they repre- sent ; and, when they cease to represent the cause which was the object of the trust, they cease to be entitled to control the trust. Thus, a gift to a Uni- tarian society, to be used for the promulgation of the cause of Unitarianism, by inculcating its tenets, doctrines, etc., is a gift to the cause of Unitarianism; and, should such society cease to be Unitarian in faith and teaching, they would cease to represent the objects of the charity, and hence would cease to be entitled to control the trust.^ Connected with the doctrine of trusts for charitable purposes is that which is technically called cy pres.^ The doctrine of cy pres is based upon the principle that the court will, as far as possible, give effect to the intention of the donor or testator. Therefore, where the intention of the testator has impressed the gift with the character of a fund for charity, > Att. Gen. v. Shor6, 7 Sim., 290; Shore v. Wilson, 9 Clark and Fin., 355; Att. Gen. v. Pearson, 11 Sim., 592; see Brown v. Lutheran Church, 23 Penn. St., 493; Gable v. Miller, 10 Paige, 647; Field v. Field, 9 Wend., 394; Trustees r. Sturgeon, 9 Barr., 322; see Hill on Trustees, (3 ed.), 467, note (1), authorities cited. * Gilman v. Hamiltoo, 16 111., 225. 252 TRUSTS FOR CHARITABLE PURPOSES. and the literal execution thereof, according to the intention of the testator, becomes impossible or im- practicable, the court will execute it as nearly as possible according to the original purpose.^ Thus, where there was a bequest of jEIOOO "to the Jew's Poor, Mile End," and it appeared that there were two charitable institutions for Jews at Mile End, and it not appearing which of the two was intended, the court held that the fund ought to be applied cy pres, and so divided the bequest between the two institutions.^ Where a charity is given, and there can be no objects of the precise character specified, or where the objects named fail, the court will make a cy pres application of the charity. Thus, in the case of the Att'y Gen. v. The Ironmonger's Com- pany,^ the testator had bequeathed the residue of his estate to the company to apply the interests of a moiety "unto the redemption of British slaves in Turkey or Barbary," one-fourth to charity schools in London and its suburbs, and one-fourth toward necessitated freemen of the company. There were no British slaves in Turkey or Barbary to redeem, and the court directed the Master to provide a new scheme cy pres, and finally the court approved a scheme giving the moiety of the charities to the ^ Story's Eq., sec. 1169, 1170; Att. Gen. v. Iron Mongers Co., 2 Beav. R., 313; Att. Gen. v. Oglander, 3 Bro. Ch. Cas., 166; Att. Gen. v. Boult- bee, 2 Ves. Jr., 380; Bridgman on Duke on Charitable uses, 35-5; Bap. Ass. V. Hart's Executors, 4 Wheat. R., 1; S. C, 3 Peters R., 481; Hill on Trustees, 462; Att. Gen. v. Wansay, 15 Ves., 231. " Bennett v. Hayter, 2 Beav. R., 81; 1 Congregational Society of South- ington V. Atwater, 23 Conn., 56. ' 2 Beav. R., 313; Att. Gen. v. Bowyer, 3 Ves., 714; Bishop of Here- ford V. Adams, 7 Ves., 324; Att. Gen. v. Wbitechurch, 3 Ves., 141; Beekman v. The People, 27 Barb., 260. TRUSTS FOR CHARITABLE PURPOSES. 253 other fourth parts, as being cy pres to that which failed. Lord Langdale said: "With respect to the order of reference, it is necessary that some con- struction should be given to it: and I am of the opinion, that the master was bound to consider whether there could be a cy pres application for the first purpose before he considered the propriety of the application to the second purpose. Where a fund is to be disposed of cy pres, the court, for the sake of making a disposition, is bound to act upon the suggestions which are before it, however remote, and it is rather astute in ascertaining some applica- tion in conformity, more or less, with the intention of the testator." This case came before Lord Cot- tenham on appeal, and was somewhat modified by him;^ on which occasion he said: "It is obviously true that if several charities be named in a will and one fail for want of objects, one of the others may be found to be cy pres to that which has failed, and if so, its being approved by the testator ought to be an additional recommendation; but such other char- ity ought not, as I conceive, to be preferred to some other more nearly resembling that which has failed. That point, however, is not open upon the present report, which was made under an order directing the master in settling a scheme to have a regard, as near as may be, to the intention of the testator as to the bequest contained in his will touching British captives, and having regard, also, to the other char- * 1 Craig & Phil., 508, 522; Att. Gen. v. Bishop of Landaft\ cited 2 Mylne & Keen, 586; 2 Beuv. R., 517; Mills v. Farmer, 19 Ves., 483. 254 TRUSTS FOR CHARITABLE PURPOSES. itable bequests in said will. By this I understand that the first subject to be considered is the inten- tion of the testator, to be discovered from the gift in favor of British slaves ; subordinately to which, and, if possible consistently with it, the other char- ities are to be considered; and this, I conceive, would have been the course to be pursued, if there had not been any such special directions. Assuming this to be the rule, it appears that the first charity is most general in its objects, being applicable to all British subjects who should happen to be in a par- ticular situation ; and the second is limited to per- sons in London and its suburbs ; and the third is confined to freemen of a particular company in London. It would seem, therefore, that although there is no possibility of benefiting the British com- munity at large in the mode intended by the testa- tor, none being found in the situation he anticipated, that it would yet be more consistent with his inten- tion that the same community should enjoy the benefit of his gift in any other way than that it should be confined to any restricted portion of such community. In considering the manner in which such benefit should be conferred, it is very reason- able and proper to look to other provisions in his will, in order to see whether he has indicated any preference to any particular mode of administering charity. If a testator had given part of his property to support hospitals for leprosy in any part of England, and another part to a particular hospital, it would be reasonable to adopt the support of hos- pitals as the mode of applying the disposable funds ; TRUSTS FOR CHARITABLE PURPOSES. 255 but there would not be any ground for giving the whole to any particular hospital. To assume, because a testator names two charities in his will, that he would have given the amount of both legacies to one if he had foreseen that the other could not be carried into effect, and, therefore, to give the pro- vision intended for the object which fails to the other, is, or may be, totally inconsistent with the doctrine of cy p'es. The two objects may be wholly unconnected, and there may be other charities closely connected with that which the testator intended to favor. But, as indicative of the testa- tor's general views and intentions, it may be very proper to observe the course he has pursued in his gifts to other charities. I think, therefore, that, in the absence of any objects bearing any resemblance to the object which has failed, it is very proper to look to the second gift, but only as a guide to lead to what the testator would probably have done him- self, and, therefore, not to be followed further than may be proper to attain that object. But with regard to the third object I cannot see any grounds for considering it as indicative of the testator's gen- eral views, or any reason for supposing that he would, under any circumstances, have wished that provision increased. The objects are restricted within the narrowest limits, and it is, in that respect, in direct contrast with the extended nature of the first gift. But what appears to me to be conclusive against any reference to the third gift is, that the testator has expressed his reasons for the gift, which can have no application to the moiety undisposed 256 TRUSTS FOR CHARITABLE PURPOSES. of. He says that the third gift is in consideration of the company's 'care and pains' in the execution of his will. It is true that this compensation is given to the company in the shape of a provision for necessitous decayed freemen of the company, their widows and children, and no doubt is a charity. But in looking for evidence of the testator's general views and intentions, with reference to the kind of charities to be favored, it cannot be inferred that he preferred the distressed freemen of the company to all others because he made a provision for them in consideration of services to be performed by the company; and this consideration has already in- creased in a greater ratio than the income of the property, it being well known that a large property may be administered at a less percentage than a small one. I am, therefore, of the opinion that this third gift cannot be referred to for any purpose in settling a scheme for the application, cy pres, of the funds intended for the first. But I think the most reasonable course to be adopted is to look at the second gift as indicative of the kind of charity pre- ferred by the testator, but making it as general in its applications as the first was intended to be, that is, open to all who might stand in need of assist- ance ; which leads to this conclusion, that it should be applied to the support of charity schools, without any restriction as to place, where the education is according to the church of England, but not exceed- ing £20 per year to any one."^ ' Att. Gen. v. Ironmonger's Company, 1 Craig. &. Phil., 508. TRUSTS FOR CHARITABLE PURPOSES. 257 Judge Story, in his Equity Jurisprudence/ re- marks, that " the doctrine of cy pres, as applied to charities, was formerly pushed to a most extrava- gant length. But this sensible distinction now pre- vails that the court will not decree the execution of the trust of a charity in a manner different from that intended, except so far as it is seen that the intention cannot be literally executed. In that case, another mode will be adopted consistent with the general intention, so as to execute it, although not in mode, yet in substance. If the mode should become, by subsequent circumstances, impossible, the general object is not to be defeated if it can in any other way be obtained. Where there are no objects remaining to take the benefit of a charitable corporation, the court will dispose of its revenues by a new scheme upon the principle of the original charities ci/ pres. A new scheme will not be ordered, however, if the institution is a permanent one, and the object of the testator was to benefit that institu- tion generally, although the particular trustee named may have died in the lifetime of the testator; but the legacy will be ordered to be paid over to the proper officer of the institution/ Where lands are given to a corporation for chari- table uses, which the donor contemplates to last for- ever, the general rule is, the heir must be forever excluded ; and, should the execution of the charity become impracticable as expressed by the donor, the ' Story's Eq., sec. 1176; Walsh v. Gladstone, 1 Phil. Ch. R., 290; Att. Gen. V. Boultbee, 2 Ves. Jr., 380, 887; S. C 3 Ves. Jr., 220; Beekman r. The People, 27 Barb., 260. 17 258 TRUSTS FOR CHARITABLE PURPOSES. court will substitute a similar one cy pres,^ and if the trustee or corporation fail, the court will substi- tute itself in their stead and execute the trust.^ It is to be observed that the trustees of a charity are not authorized to make a cy pres application of the funds on their own authority. When the par- ticular purpose expressed by the donor fails or becomes impracticable, so that it cannot be effectu- ated, recourse must be had to the courts for the purpose of elaborating a proper cy pres application. The court will direct the master, upon due enquiries and evidence, to devise a scheme for the execution of such charitable intent, which the master ultimately reports to the court for its sanction.^ But where a scheme has been approved by the Attorney General, it seems that a report of the master is unnecessary.^ It has been held that the doctrine of cy pres, as applicable to charitable bequests, is not in harmony with the genius of our institutions in this country, and therefore not in force."^ But Willard, in his Equity, thinks that there is a limited application of the cy pres doctrine in the case of Williams v. Wil- liams,^ and it is not clear to perceive any substantial » story's Eq.. sec 1177; Att. Gen. v. Wilson, 3 Mylne & Keen, 362, 372; Att. Gen. v. Hicks, Higli, on Mortmani, 330, 353. » Hill on Trustees, 462. » Att. Gen. v. Earl of Mansfield, U Sim., 601. * More V. More, 4 Dana K. Rep., 357; Methodist Church v. Reramington, etal.,1 Wall's Rep., 226; Magill v. Brown, Bright's R., 350; Ayers v. Meth. Ep. Ch., 3 Sandf. S. C. R., 351; Yates t). Yates, 9 Barb., 324, 329; Voorhees v. Presby. Ch. Amst., 17 Barb., 105. ' 4 Selden N. Y. Ap., 525; Will. Eq., 594; Andrew v. N. York Bible and P. B. Society, 4 Sandf. S. C. R., 156; The Incorporated Society v Richards, 1 Com. & Law. R., 58. TRUSTS FOR CHARITABLE PURPOSES. 259 reason why the cy pres doctrine may not be applic- able to a certain class of cases which may arise in any country where the principles of the statute for charitable uses are recognized as inhering in the common law jurisdiction of courts of equity.^ Chancellor Kent thinks that the statute 43 Elizabeth did not intend to give any new validity to charitable donations; but rather was designed to provide a new and more effectual remedy for the breaches of those trusts.^ The statute defined the charities which chancery would protect, and which were to be enforced; but it left the jurisdiction of chancery as it existed prior to it, untouched.^ Although the statute of charitable uses was not extended to Pennsylvania, yet the principles of that statute have been adopted by their courts, and they give relief in all cases where their means admit of it, nearly to the same extent as does chancery in England.^ In New York, the constitution of 1777, adopted ^ Sec preceding note. "2 Kent's Com., 288. 'Story's Eq., sec. 1162, 1163; Incorporated Society v. Richards, 1 Connor & Lawson, 58; S. C, 1 Don. k War., R., 258; AYill. Eq., 571, 572; Whitman v. Lex, 17 Serg. & Raw., 88; Mayor, &c., Philadelphia v. Elliott. 3 Rawle's R., 170; Magill v. Brown, (Zanes case), Bright R., 350, 412. * Whitman v. Lex, ut supra; Zimmerman v. Anders, 6 Watts. & Serg., 220; see A. B. So. v. Wetmore, 17 Con. R., 181; Moore v. Moore, 4 Dana K. R.. 357; Potter v. Chapin, 6 Paige Rep., 639; Dutch Church, &c. v. Mott, 7 Paige, 77; Executors of Burr v. Smith, 7 Verm. Rep, 241; San- derson V. Wliite, 18 Pick., 328; Inglis v. The Sailor's Snug Harbor, 3 Peters' U. S. Rep., 99; Bartlet v. Key, 4 Metcalf R., 378; see 1 Hoffman's Oh. Rep., 202, where it is discussed and authorities cited. The doctrine of cypres is recognized and applied in the State of Kentucky; see Gass & Bonta V. Wilhite, 2 Dana K. Rep., 170. 260 TRUSTS FOR CHARITABLE PURPOSES. as the law of the State such parts of the common law of England and of the statute law of Eng- land and Great Britain, as together formed the law of the colony of New York, on the nineteenth day of April, 1775, subject to such alterations and provisions as the legislature from time to time should make concerning the same/ The legislature in 1788, enacted, that from and after the first day of May, 1788, none of the statutes of England or Great Britain should operate or be considered as laws of that State. So far then as the law of charitable uses was a part of the common law of England, it became the law of the State of New York, unless, as ob- served by Judge Willard,'^ " there was something in the system repugnant to our form of government ; or unless it was not in force prior to the Revolution ; or unless abolished by the Revised Statutes." We have already seen that it is now held, both in Eng- land and America, that the law of charitable uses is a part of the common law of England, and that the statute of the 43 Eliz, was not designed to con- fer any new jurisdiction upon the Court of Chan- cery f that it introduced no new principles, but was designed to afford a new and less dilatory method of establishing charitable donations, and to correct other abuses in relation to them.'* In the absence of any provision in the colonial ' Const. 1777, sec. 35; see also constitutions of 1821 and 184G, for same provisions. " Will. Eq., 573. ^ 2 Kent's Com., 287 and 288, note (6), 9th ed. * Will. Eq., 572; 9 Cow., 470; 2 Kent's Com., 288. trTjsts for charitable purposes. 261 statutes, or any decisions in the colonial courts ad- verse to the common law principles of the law of charitable uses, it might very properly be inferred, that, as a part of the common law of England, it was the law of the colony of New York prior to the nineteenth day of April, 1775. But, in the lano:uao;e of Judo;e Willard,^ " we are not without evidence of undisputed authority that the English doctrine of charities was considered in force in the colony of New York prior to the Revolution." In a manuscript volume of the orders of the Court of Chancery under the colonial government, which is preserved in the office of the clerk of the Court of Appeals, there is found a record of the proceedings in a case determined in that court, held before the Governor and council, in the year 1708, which bears directly upon the question. The Attorney General filed an information against William Cullen, to compel the payment of seventy-five pounds be- queathed by one Nicholas Cullen, for the benefit of the poor of New York, and twenty-five pounds to those in Albany. The bill of complaint alleged that the defendant, under a power of attorney from the executor in England, had possessed himself of the testator's estate in the colony, out of which, according to equity, he ought to have paid the lega- cies aforesaid, forasmuch as the said legacies were given to pious and charitable uses, and as the preservation of charitable uses is of great public benefit and great con- cern to our lady, the Queen, and the poor aforesaid, in ' Willard's Eq., 574. 262 TRUSTS FOR CHARITABLE PURPOSES. consideration whereof, " the Attorney General prayed that the defendant might answer and be decreed to pay the amount, &c. The defendant answered, and the cause being heard upon the pleadings, a decree was made that he should pay the trustees the amount of the legacies to be distributed to the poor accord- ing to the will of the testator."^ It will not be claimed that the law of charitable uses is repugnant to republican and christian institutions, for, in the language of Mr. Kent,^ " the administration of jus- tice in this or any other country, would be extremely defective if there was not power to uphold such dis- positions," (to charitable uses). There is nothing in the Revised Statutes which conflicts with the general law of charitable uses. By that statute,^ it is provided, that no devise to a corporation shall be valid unless such corporation be expressly author- ized by its charter or by statute, to take by devise. But this statute only excepts corporations unauthor- ized, from the description of competent devisees ; but there is nothing in the statute declaring it un- lawful for a corporation to take /or a charitable use; and Mr. Kent says, they are left in the same state as if the Statute of Wills had not been passed.* In the case of the Orphan Asylum Society v. McCartee,^ Chancellor Jones held that a devise of ' See preceding note. « 11 Conn., 285. ' 2 R. S. 57, sec. 2, 3, Stat, of Wills; see Ilornbeck's Ex'rs v. Am. Bib, So., 2 Sandf. Ch. R., 133; Banks v. Phelan, 4 Barb., 80. * Kent's Com., 286. • 9 Cowen, 469; 2 Kent's Com., 286, and note to 288. TRUSTS FOR CHARITABLE PURPOSES. 263 lands to executors, in trust for a charitable corpora- tion, for charitable purposes, was a legal and valid trust to be enforced in equity. And Mr. Kent, in referring to this opinion of Chancellor Jones, sus- tains it by quoting the authority of Lord Northing- ton in the case of The Attorney General v. Tan- cred,^ in which he affirmed, that devises to corpora- tions, though void under the Statute of Wills, were always considered good in equity if given to chari- table uses ; and that the uniform rule of the court of chancery, before as well as after the statute of Elizabeth, was that where the uses were charitable, and the grantor competent to convey, the court would aid even a defective conveyance to uses." ^ It can hardly be doubted that the common law doctrine of charitable uses is the law of the State of New York upon that subject, where the statute has not pro- vided to the contrary. Then why may not the cy pres doctrine as administered by the court of chancery in England, in virtue of its common law jurisdiction, be equally applicable in the State of New York. There does not appear to be any valid reason why a court of equity in the State of New York, having a common law jurisdiction over ques- tions of charitable uses, should not have authority to ' 1 Edw. R., 10, and 1 AYm. Black., 91; see also 2 Kent's Com. 287, note (a), 9th ed; see also the opinion of Judge Duer, in case of Andrews v. N. Y. Bible & P. B. S., 4 Sandf. Sup. C. R., 184; also Vander Volgen v. Yates, 3 Paige, 242; Williams v. Williams, 4 Selden, 525; see Lord Eldon in Att. Gen. v. The Skinner's Com., 2 Russ., 416; also. Sir John Leach in Att. Gen. v. The Master of Brentwood School, 1 Myl. & Ke., 376 and Lord Redesdale, 1 Blight's R., N. S., 347; Shotwell v. Mott, 2 Sandf. Ch., 46; Potter v. Chapin, 6 Paige, 639. 264 TRUSTS FOR CHARITABLE PURPOSES. administer in that class of cases in which a court of equity in England could, without the aid of the royal perogative : that is, in all cases, except where there is a general charitable purpose not fixing itself upon any particular object, or where the charity which is appointed is illegal or impossible. The rule in England is, if there is clearly a general charity, and yet the gift is so indefinite that the court cannot execute it, or if the purpose be illegal or impos- sible, the trust is executed by the King under his sign manual.^ But in all cases where the subject and object are sufficiently definite to enable the court to execute the trust, and the purpose is legal and possible, chancery has original and necessary jurisdiction." In the case of Owens v. The Missionary Society of the Methodist Episcopal Church,'^ Mowbry Owens, by his will, directed his property real and personal to be sold, by his executors. One third of the pro- ceeds he gave to his wife in lieu of dower. After two bequests, amounting to $150, he directed the residue of his estate to be invested during the life ' Da Costa v. Du Paz, Amb. 228; 2 Sw., 487; 7 Yes., 490; 2 M. & K., 697. ^ 2 Kent's Com., 287, and note; see Ld. Chancellor Sugden, in Incorpo- rated Society v. Richards, 1 Con. & Law., 58; and also 1 Dow. & War. R., 258; Chancellor Walworth, in 7 Paige, 80; Ld. Hardwick. in 2 Yes., 327; see Owens v. The Missionary Society of the M. E. Church, 14 N. Y., 380; and the opinion of Selden, J., in which he traces the history of the law of charitable uses, and is of the opinion that the peculiar features of that law have their origin in the statute 43 Elizabeth. See Denio, J., in the same case. He thinks the legal question before the court has been settled in New York, and should be permitted to stand. M4N. Y. R.,380. TRUSTS FOR CHARITABLE PURPOSES. 265 of his wife, and the interest to be paid to her. And after the death of his wife, he gave the residue of his estate to the Methodist General American Mis- sionary Society appointed to preach the gospel to the poor, L. C. The testator died in 1834. His widow died in 1851. There was a residue of $1436.52 in the hands of the surviving executor. The next of kin of the testator claimed the residue. The Missionary Society of the Methodist Episcopal Church was incorporated in 1839. The object of the incorporation was declared in the act to be *'to diffuse more generally the blessings of education, civilization and Christianity throughout the United States and elsewhere." In 1819 or 1820, a volun- tary unincorporated association was formed* under the patronage of the Methodist Episcopal Church, known by the same name, and it continued and car- ried on its operations under the control of the church until the appellants were incorporated in 1839. The surrogate found that the testator intended his bequest to this voluntary association, and adjudged it to them. Owens and others, next of kin, appealed to the Supreme Court, where the decree of the surro- gate was reversed. The M. S. of the M. E. Ch., appealed to the Court of Appeals, where the decision of the Supreme Court was affirmed. Selden J., in giving the opinion of the court, argued and held that the doctrine of charitable uses, as administered in England, w^as derived from the 43 Elizabeth, and as such, was not in force in New York, and hence, sustained the decree of the Supreme Court. Denio C. J. based his opinion upon the principle that the 266 TRUSTS FOR CHARITABLE PURPOSES. object was so indefinite that it could not be executed by the court, and hence the use must fail.^ Clearly, this bequest lacked all the essential elements of a charitable bequest, whether the doctrine of chari- table uses be derived from the 43 Elizabeth, or from the principles of equity as administered at common law. The purposes and objects of the bequest were too vague and indefinite to enable the court to en- force its execution. Where there is a bequest of property to an incor- porated institution, capable of holding under its charter, real and personal property, it is no objec- tion that the bequest may create a perpetuity.^ In the case of Beekman v. The People, recently decided in the Supreme Court of New York,^ Bar- thop, by a codicil, dated May 12, 1838, and another of October 13, 1838, made the following bequest : "x\fter the expiration of ten years, or sooner, if there be sufficient funds, I would wish a public dis- pensary, as in New York, on a similar plan, for indigent persons, both sick and lame, to be attended by a physician elected to the establishment, at their own homes, and also daily at the dispensary. My executors to consult judicious men in Albany, res- pecting the same, and funds enough to carry on the * But see Vidal et al. v. The Citizens of Philadelphia, 2 How. Rep., 127; see the calendars of proceedings in Chancery in the town of London, printed hy the direction of the Record Commission in 1827. By this it appears that charitable uses might be enforced in Chancery, upon the prin- ciple of the general jurisdiction of the court independent of the statute of Elizabeth, etc. ^ Auburn T. S. v. Kellogg, 16 N. Y. R., 83; see also Williams i'. Wil- liams, 4 Seld., 525; 4 Seld., 558. = 27 Barb., 260. TRUSTS FOR CHARITABLE PURPOSES. 267 building and yearly expenses. And should there be any overplus, my executors, within fifteen years, may give it to any other charitable society or socie- ties for relieving the comfortless and indigent they may select. I say within fifteen years from my death. I say it is my will that my executors have a discretionary power, or a majority of them, within fifteen years after my decease, to pay over what re- mains, after all legacies are paid, the residue and re- mainder of moneys arising from my worldly goods and effects, to such charitable societies for indigent and respectable persons, especially females and or- phans, as they in their discretion shall think of." By the codicil of October 13, 1838, before any money was appropriated for the establishment of a dispensary, as provided for in the preceding codicil, he gave to his executors in trust the sum of $19,000, to be appropriated in their discretion to certain so- cieties, which, it has since been ascertained were not in existence at the death of the testator, and he added, after such provision, these words: "But should my executors be of the opinion, at anytime, that any or either of said societies do not merit the provision aforesaid, for their benefit, by reason of mismanagement or negligence, or for any other cause, then and in that case it is my will, and I direct that the moneys then remaining unpaid shall be withheld, and that they shall pay and apply the same to any other charitable society or societies, incorporated or not, which my said executors shall, in their discretion, think proper, reposing full con- fidence in my executors that they will endeavor to 268 TRUSTS FOR CHARITABLE PURPOSES. carry into effect my intentions in regard to the dis- position of said moneys." * * * "And in the second place, after satisfying the provisions in my will in regard to the dispensary mentioned in my will, in the first codicil thereto, I give and bequeath all my estate then remaining, if any there shall be, to my executors, in trust, that they shall and may apply the same in such sums, and at such time and times as, in their discretion, they shall think fit and proper, to the treasurer or other officer having the management of the pecuniary affairs of any one or more societies for the support of indigent respectable persons, especially females and orphans, and for the use of said society or societies, hereby intending to give to my executors discretionary power as to the disposition of the same, but so that the same shall be applied to objects of charity.'' In this case the court held that the bequest, to be effectual, imposed the necessity of creating a trust in lands of a nature prohibited by the statute regu- lating uses and trusts, and was therefore null and void. The argument of the court was on this wise: The establishment of the dispensary, according to the terms of the will, necessarily involves the pur- chase of a site and the erection of a suitable building. The terms used by the testator, in expressing his intention, necessarily imply a direction to pur- chase land on which to build, and the estate is given to his executors for the purpose thus indi- cated ; which, being in contravention of the statute regulating uses and trusts, is illegal and void. As this case has gone to the Court of Appeals, TRUSTS FOR CHARITABLE PURPOSES. 269 and is not yet decided there, it is unnecessary to enter upon a critical review of it. The court based the decision upon English authorities, which hold that a devise or bequest which necessarily involves the purchase of real estate by executors or trustees, in trust for religious or charitable purposes, is void, as being in contravention of 9 George II, chap. 36, known as the Mortmain act. The authorities cited^ are numerous and satisfactory upon that point. The rule deducible from them seems to be, that "a true construction of the statute 9 George II, chap. 36, is, ' that a bequest is void which tends to bring fresh lands into mortmain ;' and also that a bequest of money, to be expended in the erection or repair of buildings, is void, unless the testator expressly states in his will his intention that the money so bequeathed is to be expended on some land already in mortmain y'^ The judge, in giving the decision in this case, remarked: "Such provisions as are con- tained in this will would be clearly void in England, as being in contravention of the mortmain act. But, as that statute is siot in force in this state, are they in conflict with other statute regulations ? The sta- tute of this state, regulating uses and trusts, declares that all uses and trusts, except as therein authorized, are abolished; and a reference to them shows that ^Chapman v. BroAvn, 6 Ves., 404; Att. Gen. v. Tyudall, Ambl., 614; Att. Gen. V. Hutchinson, Ambl., 751; Pelham v. Anderson, 1 Bro. C. G., 414; Foy v. Foy, cited 3 Bro. C. C, 591; Att. Gen. v. Nash, 13 Bro. C. C., 588; Fry v. The Corporation of Gloucester, 14 Beav., 196; Att. Gen. v. Hall, 9 How., 647. ' See the history of the rise and progress of the acts called Mortmain, in 2 Black. Cora., 268. 270 TRUSTS FOR CHARITABLE PURPOSES. they cut off all trusts except those which are expressly authorized, and that this trust is not so authorized," and therefore the court held the be- quest void. The premises and the conclusion of the court in this case, are not necessarily related to each other ; at all events there is not that inevitability of rela- tionship which makes the conclusion altogether satisfactory. The authorities cited had but little bearing upon the question before the court. In England, the statute of mortmain was enacted to prevent, among other things, that which is necessa- rily involved in such a bequest — the hringing of fresh lands into mortmain, without license from the crown. Therefore, such a bequest is not only against the letter but also, against the s'pirit and intendment of that statute. It involves necessarily that, which those statutes were carefully and persistently framed to prohibit and prevent. The history of the rise and progress of the mortmain acts,^ show that there never has been, and, probably, never can be occasion for the enactment of any such statute in the State of New York. The bequest, then, is not void be- cause it involves the doing of that which would be in contravention of a mortmain act. The laws of New York favor the establishing of religious and charitable corporations, by the facili- ties they afford for such purposes. So far from passing a mortmain act, they have enacted general laws by which religious and charitable associations ' See 2 Black. Com., p. 2G8. TRUSTS FOR CHARITABLE PURPOSES. 271 may become self-incorporated, and endowed with the prerogatives of perpetuity and personality; em- powered to receive, hold and pass estates, real and personal, limited in amount, for the legitimate purposes of their existence. The bequest, then, has for its object that which is in harmony with the spirit and intendment of the general laws of the State of New York. But it is said by the court, the bequest involves, necessarily, acts in contravention of the statute of New York regulating uses and trusts ; inasmuch as it necessarily contemplates the purchase of real estate, which is to be held in trust for the purpose of the charity contemplated, and that such trust is not authorized by the statute. The statute of New York regulating trusts was not enacted in hostility to the principle of creating trusts, nor does it intend to prevent their existence in cases needful and proper. It is held by the courts that the aim of the statute was to abolish mere passive or dry trusts} It aimed not at destroy- ing the interest of the cestui que trust, but at uniting the legal and equitable estates in him in all cases where it could consistently be done.'^ But where that could not be done, because of interests Avhich might require protection, or where there were ac- tive duties to be performed by a trustee, making ' Will. Eq., 415; Johnson v. Fleet, 14 Wend., 166; 1 Rev. St., 727, sec. 48. * Wright I!. Douglass, 3 Seld., 564; Baker v. Dcvereaux, 8 Paige, 513; Bard «. Foot, 3 Barb. Ch., 632; Frazee v. Western, 1 Barb. Ch., 220; Parks V. Parks, 9 Paige, 107; Rawson v. Lampman, 1 Seld., 456; Voor- hees V. Prea. Ch. of Amsterdam, 8 Barb., 135; Ring v. McCoun, 6 Seld.# 268. 272 TRUSTS FOR CHARITABLE PURPOSES. the legal estate in him essential to their proper per- formance, the law intended a trust should subsist, or that which was equivalent thereto/ Therefore, the statute proceeded to authorize ex- press trusts in that class of cases where the needs of society seemed most to demand them ; and then, to provide, that where express trusts should be created for any other purpose not enumerated in the act, directing or authorizing the performance of any act which might be lawfully performed under a power, although not valid as a trust to vest in the trustee, a legal estate^ it should, nevertheless, be valid as a power ; and the power in trust thus raised, should be imperative, unless expressly provided otherwise, and, like a trust, be enforceable in equity. The statute then, defines a power to be an au- thority to do some act in relation to lands, or the creation of estates therein, or of charges thereon, which the owner granting or reserving such power, might himself lawfully perform. It is obvious that the statute does not seek to pro- hibit the raising of trusts as a principle. It seeks to do away with mere useless or dry trusts, by execu- ting the use in the cestui que trust, not by depriving him of it. The bequest was not in contravention of the sjnrit or intendment of the law of New York abolishing uses and trusts. A trust raised for the purpose of establishing a charity such as this dispensary was conceded to be, ' 1 Rev. St., 727, sec. 47 and 48. TRUSTS FOR CHARITABLE PURPOSES. 273 is in harmony with the spirit, not only of the gen- eral laws of the State, but also of the particular statute said to be contravened. Had the testator in his lifetime given the money to the trustees, to be expended for such a purpose, or had he executed to them deeds in trust for such an object, who can doubt it would have been valid as a power in trust ? And although the legal title would not have vested in the trustees, yet it would have descended to the heirs or personal representatives, subject to the exe- cution of such power. And although the trustees might decline the trust, equity can always find a trustee, especially in cases of charity. As a general principle, courts of equity have ju- risdiction to enforce the performance of charitable trusts created within their jurisdiction, although the objects of the trust are in a foreign country.^ But the trust for a foreign charitable purpose must not contravene the policy of the law where the trust is sought to be enforced.^ It is further held that courts will not interfere to direct the application of the fund in a foreign country, especially where there is a competent jurisdiction for that purpose in that country.^ The extent of the powers of a trustee in the con- • Forbes v. Forbes, 18 Beav., 552; Att. Gen. v. Sturge, 23 L. J. Ch., 495; Thompson v. Swoope, 2-4 Penn. St., 474. * De Garcia v. Lawson, 4 Ves., 434; Smart v. Prujean,6 Ves., 560; Duke Char. Uses, 466; 2 .larm. Pow. Devis., 13. ^ Emery v. Hill, 1 Russ., Ill; P. of Edinburgh v. Auberry, Ambl., 236; CoUyer v. Burnett, Taml., 79; Forbes i'. Forbes, 18 Beav., 522; Att. Gen. V. Sturge, 23 L. J. Ch., 495; Minet v. VuUiamy, 1 Russ., 113; Att. Gen. V. Lepine, 2 Sw., 181. 18 274 TRUSTS FOR CHARITABLE PURPOSES. trol and management of charities, depends upon the terms of the instrument upon which the trust is founded ; and when they are invested with general discretionary powers of administration, the court will not interfere, except for abuse of the trust. ^ But, nevertheless, if it appear that they are con- ducting improperly, the court is bound to interfere,^ Upon the principle that charities are highly favored by the court, they will exercise a more complete and searching jurisdiction for the supervision and control of trustees of charities than in other cases. Therefore, trustees in such cases, must be careful not to exceed the power conferred on them by the instrument of foundation ; or to travel out of the strict line of the trust. Should any questions arise from the wording of the trust, or from any change in the property, or alteration in the cir- cumstances which seem not to be clearly defined or provided for by the founder, they should apply to the court for direction rather than incur the re- sponsibility of acting upon their own judgment.^ There are certain principles connected with the duties and powers of trustees for charity which ought to be considered. And (1) they should never alienate the trust estate without the authority of the court. Such alienations, as a general rule, will > Willis V. Childe, 13 Bcav., 117, 454; Reg. v. D. School, 6 Q. B., 682; Wilkes' Charity, Macn. & G., 440; Att. Gen. v. May, 5 Cush., 351; Att. Gen. Wallace, 7 B. Monr. 611. * Att. Gen. v. Christ Church, Jac., 474; Att. Gen. v. Earl of Mansfield, 2Russ., 501; Att. Gen. v. Earl of Lonsdale, 1 Sim., 105; Att. Gen. v. BuUer, Jac, 407; Att. Gen. v. Norwich, 16 Sim., 225. TRUSTS FOR CHARITABLE PURPOSES. 275 be considered per se as a breach of trust. There are circumstances however which have been deemed a justification of such an act without seeking the sanc- tion of the court, or at least where the court have sanctioned the act.^ As it is a prime duty of the trustee to preserve the trust property, and act favor- able to the trust interests, if he sell the trust pro- perty, he must be prepared to show that the trans- action was beneficial to the charity ; and in the ab- sence of such proof, the sale will be treated as a breach of trust and be set aside ."^ With respect to the general power of trustees to grant leases of charity propertj^ Lord Langdale, M. R., in the case of Attorney General v. Kerr,'^ remarked : " It is cer- tainly a strong proposition to lay down that the trustees of a charity have the same powers which a prudent owner has with respect to his own property. There may, perhaps, be dicta which go almost to that extent, but I apprehend that much more is ex- pected from trustees acting for a permanent charity, than can be expected from the ordinary prudence of a man in dealing between himself and other per- sons. A man acting for himself may indulge his own caprices, and consider what is convenient or agreeable to himself as well as what is strictly pru- dent. Trustees of a charity, within the limits of their authority, whatever that may be, should be * Att. Gen. v. Nethercoat, 1 Harv., 400; Att.Gen. v. Wallace, 7 B. Mon- roe, 611; Brown v. Lutheran Church, 23 Penn. St., 498; see remarks of Lord Langdale, M. R., 4 Beav., 458. "^ Att. Gen. v. Owen, 10 Ves., 555; Att. Gen. v. Kerr, 2 Beav., 240; Att. Gen. V. Brittingham, 3 Beavan, 91; Att.Gen. i). Brooke, 18 Ves., 326; Att. Gen. V. Pargeter, 6 Beavan, 150. 276 TRUSTS FOR CHARITABLE PURPOSES. guided by a desire to promote the lasting interests of the charity."^ So jealous are courts of the fidelity of trustees for charity, that they will seize upon any personal advantage the trustee may have secured to himself as an evidence of unfaithfulness and will act accordingly.'^ Where, by the terms of the trust, the particular charitable purposes are clearly defined in respect to such purposes, the trustee has no discretion; hence, in such cases, a deviation from those purposes would be deemed a breach of the trust.^ So, also, when a particular manner of executing the trust is pointed out, they must strictly adhere to it in their administration.* Where the objects of a trust for charity are des- cribed in general terms, as a trust for the poor of a parish, the trustee must adopt the construction which has been applied by the court, to such gen- eral terms.^ Upon the same principles where the trust is for the support of a particular class of re- ligious tenets, and the trustees divert the fund to sujDport another class, the court will interfere to prevent such diversion, and require them to be ap- propriated to teaching the doctrines for which they were originally intended.^ In order to ascertain • * See preceding note. " Att. Gen. v. Stamford, 2 S\v., 592; Att. Gen. v. Dixie, 13 Ves., 519, 534; Att. G. v. Clarendon, 17 Ves., 491, 500. " See Duke on Char. Us., 116; Att. Gen. v. Hurst, 2 Cox R., 354, 365; Corbyn v. French, 4 Ves., 419, 4-33. * Att. Gen. v. Griffith, 13 Ves., 565; Att. Gen. v. Rochester, 2 Sim., 34. ^ Att. Gen. v. Clark, Ambl., 422; Att. Gen. v. AVilkinson, 1 Beav., 370; Att. Gen. v. Hartley, 2 J. &. W., 370; Att. Gen. v. Jackson, 2 Keen, 541. ' Att. Gen. v. Pearson, 3 Mer., 353; Att. Gen. v. Shore, 7 Sim., 309; also 9 CI. & F., 390; Att. Gen. v. Wilson, 16 Sim., 210; Gable v. Miller, TRUSTS FOR CHARITABLE PURPOSES. 277 the doctrine for the support of which the trust was created, reference may be had to history, and to the prior and contemporaneous standard theological writers of the time/ The question of the duties and powers of trustees for charities, will be consid- ered further under the particular head of their lia- bilities. The proceedings to establish or direct charities, etc., may be had in chancery, either by original bill, or upon information by the Attorney General.^ The mode of proceeding by commission under the statute of Elizabeth has been abandoned, and that of information by the Attorney General has been universally substituted in its stead.^ If the gift be such that it would not be a charity under the sta- tute, an information in the name of the Attorney General will not lie," but, nevertheless, if it be such a charity as the court ought to sustain, they will sustain it, and establish the charity in such a man- ner as the law will permit." When the charity is under the supervision of local visitors, the jurisdiction of chancery does not obtain, because the founder has placed it under their 10 Paige, 647; Miller v. Gable, 2 Denio, 492; Field v. Field, 9 Wend., 394; Kniskcrn u. Lutheran Churches, 1 Sandf. Ch., 439; Brown v. Summers, 10 Law Jour. N. S. Chanc., 71 ; Att. Gen. v. Pearson. 3 Mer., 409. > Att. Gen. v. Shore, 9 CI. & F.,390; Drummond v. Att'y Gen., 2 H. L. Cases, 837; Miller v. Gable, 2 Denio, 492; Trustees v. Sturgeon, 9 Barr., 822; see Harper v. Straws, 14 B. Monr., 48. =* Story's Eq., 1163; Com. Dig., ch. 2, note (1). ^ Att. Gen. v. Hewer, 2 Verm., 382; Shelford, 278; Willard's Eq., 572. * Att. Gen. v. Smart, 1 Ves., 72; Att. Gen. v. Jeanes, 1 Atk., 355; Att. Gen. V. Whitty, 11 Ves., 241; Att. Gen. v. Parker, 1 Ves., 43; S. C, 2 Atk., 676. 278 TRUSTS FOR THE BENEFIT OF CREDITORS. direction/ But the application of the revenues of a charity is a trust, the strict performance of which the court will require, notwithstanding the appoint- ment and existence of a visitor.'^ TRUSTS FOR THE BENEFIT OF CREDITORS. Assignments for the benefit of creditors may be directly to the creditors themselves, or to a trustee or trustees, who take the property in trust for them. These assignments, Avhen made in good faith, will be sustained, and the trustee will be vested with the legal interest necessary to enable him to perform the duties imposed upon him. In England it is held that the debtor is not bound by his assignment unless the creditors are in some way privy to it, or have assented thereto.^ Where there has been no understanding between the debtor and his creditors, or where the creditors have had no information on the subject, they hold that the assignment of the debtor is merely a 'power, which may be revoked by him at pleasure ; and the creditors, although named ^ Att. Gen. v. Rice, 3 Atk., 108; Att. Gen. v. Gov. H. School, 2 Ves., 552; Story's Eq., sec. 1163; Att. Gen. v. Lock, 3 Atk., 165; Att. Gen. V. Middleton, 2 Ves., 327; Att. Gen. v. Catharine Hall, Jac, 392; Att. Gen. V. Archbishop of York, 2 R. & M., 468. * Att. Gen. v. Corporation of B., 2 Ves., 505; Att. Gen. v. Magdalen College, 11 Jur., 681; Att. Gen. v. Dixie, 13 Ves., 519; Whiston v. Dean Rochester, 7 Hare, 532; Att. Gen. v. Dean etc. Rochester, 20 Law J., 2 B., 467; Att. Gen. v. Earl of Clarendon, 17 Ves., 491; Att. Gen. v. Smythcs, 1 Keen, 239; Att. Gen. v. Bro. Hospital, 17 Sim., 137; Sander- son V. AVhite, 18 Pick., 332. => Walwyn v. Coutts, 3 Mer., 707; Shirley v. Ferrers, 1 Bro. C. C, 41; Smith V. Keating, 6 M., Gr. & S.,136; Garrard v. Ld. Lauderdale, 8 Sim., 1; Hamilton v. Houghton, 2 Bligh, 169. TRUSTS FOR THE BENEFIT OF CREDITORS. 279 in the deed or schedule, acquire no rights under it.^ They treat the transaction, under such circum- stances, as though the trustee was merely the agent of the debtor, and might be removed by him at will.^ But if there exists any understanding or privity on the part of the creditors, even though the information be communicated to them by the trustee, the legal estate is immediately vested in the trustee, and the power of revocation is gone.^ In the United States the rule seems to be differ- ent. Where the assignment is to a trustee or trustees, in trust for the creditors generally, or for certain specified ones, and is made in good faith without conditions deemed injurious to the interests of the creditors, the legal estate at once is vested in the trustee, and the assent of the creditors is pre- sumed, unless the contrary is proved.* Assignments for the benefit of creditors are adjudged to be made upon a valuable consideration, and therefore binding upon the parties from the time of their execution.^ Upon the presumed assent of the creditors to the assignment of the debtor, where the assignment is made to trustees, the rule in the several states is quite uniform. Where the assignment is made in ' Paige V. Broom, 4 Russ., 6; Acton v. Woodgate, 2 M. & K., 492; Gar- rard V. Lauderdale, 3 Sim-, 1. « Acton V. Woodgate, 2 M. & K., 492. « 2 M. & K., 495; see Hinde v. Blake, 3 Beav.,234; Hill on Trustees, 83, note 1; Story's Eq., sec. 972, and note 3. * Nicol V. Mumlord, 4 Johns. Ch.R., 522; Brooks v. Marbury, 11 Wheat., 78; Halsey v. Whitney, 4 Mason, 206; Thompkins v. Wheeler, 16 Pet., 118; Cunningham v. Freeborn, 11 Wend., 240. ' 2 Kent's Com., 533; Day v. Dunham, 2 Johns. Ch. R., 188; Russell v. Woodward, 10 Pick., 413; Story's Eq., sec. 1036, and authorities cited. 280 TRUSTS FOR THE BENEFIT OF CREDITORS. good faith, and is deemed to be beneficial to the creditors, in perhaps every state in the Union their assent will be presumed ; that is, their assent is the presumption of law, until the contrary is proved.^ But if the deed contains stipulations which are not beneficial, such as postpone the collection of their debts beyond the period of their maturity, or such as require some unfair advantage on the part of the debtor, the assent of the creditor will not be pre- sumed.'^ Where the assignment to the trustee names the creditors as parties to the assignment, and annexes conditions, the creditors must manifest their assent, according to the terms of the deed, before they can claim the benefits of it.^ If there are stipulations in the assignment that creditors shall release the debtor, or shall do any- thing which may not be for their benefit, their assent must be obtained before the assignment will be valid to divest the debtor of his title,* and, consequently, the property will be subject to execution or attach- ment as the debtor's property, until such assent is given. Such stipulations do not invalidate the as- signment f they only destroy the presumption of the ' Hal sey r. Whitney, M< swpra; Klapp's Assignees v. Shirk, 13 Penn. St., 589; Nichol v. Mumford, ut supra; Thompkins v. Wheeler, ut supra. * Nelson v. Dunn, 15 Alab., 502; Evans v. Lamar, 21 Alab., 333; Fel- lows V. The Vicksburgh R. and B. Co., 6 Rob., 246; Elmes v. Southerland, 7 Alab., 262; Klapp's Assignees, ut supra. ^ Story's Eq., sec. 1036 (a); Garrard v. Lauderdale, 3 Sim., 1. * Story's Eq., sec. 1036, (a), (b). * Halsey v. Whitney. 4 Mason, 206; Pearpont v. Graham, 4 Wash. C. C. R., 232; Bradshear v. West, 7 Pet. R., 608; Story's Eq., sec. 1036; Shel- don v. Dodge, 4 Denio, 217; Wakeman r. Groner, 4 Paige R., 23; Austin V. Bell, 20 Johns. R., 442. TRUSTS FOR THE BENEFIT OF CREDITORS. 281 assent of the creditors, and make an actual assent necessary. In case of voluntary assignments directly to the creditors themselves, their assent must be actually given before the assignment will be valid so as to transfer the property from the debtor to his credi- tors/ These assignments being in the nature of a contract between the debtor and those of his credi- tors who are made parties to it, cannot operate to bind either debtor or creditor; or to transfer the property to the creditors until their assent is actu- ally given to the assignment according to its terms. Consequently, if the creditors do not become par- ties to the assignment, either by executing the deed on their part, when that is made necessary, or by otherwise actually assenting thereto, the relation of the debtor and his property to them undergoes no change.^ Where there is no provision in the deed of assign- ment making it necessary that all the creditors or any specified number of them shall execute the deed or assent to it to make it valid, the execution of it by one or more, or the assenting to it by a part of the creditors only, Avill be sufficient to divest the debtor of his title to the property, by making the instrument valid and operative.^ The assignment being in the nature of a contract * Lawrence v. Davis, 3 McLean, 177; Nicliol t'. Mumford, 4 Johns. Ch., 522. * Story's Eq., sec 1036, (a) ; Simmonds v. Pallas, 2 Jones &. Lat., 489; Lawrence v. Davis, ut supra; Drake v. Rodgers, 6 Mo., 317. ^ See Story, J., in Halsey v. Whitney, 4 Mass., 206; Hastings v. Baldwin, 17 Mass., 556. 282 TRUSTS FOR THE BENEFIT OF CREDITORS. between the debtor and his creditors, must be com- plete, and be fully acquiesced in by at least two parties before the property is transferred by it. If, therefore, there are conditions which are not agreed to, or if, from any cause, the contract is not com- plete, neither party is bound, and nothing passes between them. Thus in the case of The Fall River Iron Works Co. v. Croade,^ where a debtor called on his creditor, and showed to him a sketch of a proposed assignment, and of the mode of applying the proceeds of his property ; and this sketch, so far as regarded this creditor, was made a part of the deed executed by the debtor ; yet in no other way assented to or executed by the creditor, it was held as against an attaching creditor, that the assent was not sufficient.^ For a similar reason, where the assignment is made to a trustee for the benefit of creditors, the title will not vest in the trustee until he accepts the trust.' It follows, therefore, that the property of the debtor remains subject to execution until the acceptance of the trust by the trustee. But that ac- ceptance may be presumed. As the creditor may dispose of his property abso- lutely for the payment of his debts ; and may pay one creditor in preference to another ; so also may he assign his property to trustees for such purpose ; and by the condition of the deed require the trustee * 15 Pick., 11; see also Crosby v. Hillyer, 24 Wend., 280; Jackson v. Phipps, 12 Johns. R., 418. ' Crosby v. Hillyer, ut supra; Willard's Eq., 465; Jackson v. Bodle, 20 John., 184. TRUSTS FOR THE BENEFIT OF CREDITORS. 283 to prefer certain of his creditors to others. It is well settled, that a debtor in failing circumstances, where there is no code of bankrupt or insolvent laws prohibiting it, may make an assignment of his prop- erty in trust, giving preference to one class of cred- itors over another/ In New York it is provided by statute,- that all deeds of gift, all conveyances, and all transfers or assignments, verbal or written, of goods, chattels, or things in action, made in trust, for the use of the person making the same, shall be void as against the creditors, existing or subse- quent, of such person. The legislature have also provided for the appointment of assignees or trustees who may take the estates of the insolvent debtor and dispose of them for the benefit of the creditors f and the spirit and intent of those provisions are to secure to all the creditors their legal and just rights. And it is also provided by statute,' that all convey- ances made with the intent to hinder, delay or de- fraud creditors or other persons of their lawful suits, damages, forfeitures, debts or demands, shall be void. ' 2 Kent's Com., 532; Day v. Dunham, 2 Johns. Ch. R., 188; Russel v. Woodward 10 Pick., 413; Winteringham v. Lafoy, 7 Cowen, 735; Hen- dricks V. Robinson, 2 J. C. R., 283; Goodrich v. Downs, 6 Hill, 438; W.ll. Eq. 466; Story's Eq., sec 1036; Wheeler v. Sumner, 4 Mason C. C R., 183' Halseyt.. Whitney, 4 Mason, 206; Edrington v. Roggers, 15 Texas, 188*; Nye v. Van Husan, 6 Mich., 329; Woods v. Zimmerman, 27 Miss., 107 » 2 R. S..135, sec. 1, tit. of Fraudulent Conveyances and Contracts, etc; see 6 Hill., 438, ut supra. »2R. S.,34, art. 7. * 2 R. S., 137, tit. 3, sec. 1, of Fraudulent Conveyances, etc.; Kellogg v. Slawson, 15 Barb., 56. 284 TRUSTS FOR THE BENEFIT OF CREDITORS. Therefore, courts, acting upon the spirit of these provisions, must look sharply into all assignments which tend to injure some creditors, by preferring others. Thus, if an insolvent debtor assign all his property in trust to pay certain preferred creditors, without making provision for the others, and also provides for a reconveyance of the residue to him- self, the assignment is clearly fraudulent and void, and no estate vests in the trustee.^ So when the deed of assignment has such conditions as may favor the debtor and injure the creditors, or at least, not be for their benefit, it will be adjudged to be void,^ as requiring the creditor to discharge the debtor from all claims against him on receiving a dividend, &c. So where there is a stipulation of a release as a condi- tion of obtaining a preference under the assignment.^ So if the assignment stipulates that the residuum of the property, after paying certain debts, shall be paid back to the debtor before all the creditors are satis- fied : * or where the assignment includes but a part of the property of the debtor, and yet he stipulates for a release from his creditor as a condition of receiv- ing benefit.^ So also where there are stipulations that the debtor may retain possession and use the ' Barney v. Griffin, 2 Comstock, 365; 2 R. S., 135, sec 1; but see Dow V. Platver, 16 N. Y. R., 562; Mabbet v. White, 2 Kern., 442; Kellogg v. Slawson, 15 Barb., 56. " Green v. Trieber, 3 Md., 11; Goodrich v. Downs, 6 Hill, 441; Nicholson V. Leavitt, 2 Seld., 510; Grovcr v. Wakeman, 11 Wend., 187; Litchfield v. White, 3 Seld., 438. ^ Stewart v. Spencer, Curtis Ct. Ct. Rep., 157. * Goddard v. Ilapgood, 25 Vt., (2 Dean) 351. ' Gadsden v. Carson, 9 Rich's Eq., 252. TRUSTS FOR THE BENEFIT OF CREDITORS. 285 property assigned ;^ or where he is to be employed as the agent of the assignee for a compensation.^ Preferences of creditors may be made by the debtor,^ but they must be made by himself in the assignment ; he cannot delegate the power to his assignee ; and the transaction must be free from the taint of fraud or self-interest.* Under the statute which declares void all assignments made with intent to hinder, de- lay or defraud creditors, whenever an assignment requires or authorizes the performance or omission of any thing which tends to produce such a result, it will be deemed fraudulent and void : ^ as where there is an assignment of all the assignor's property with authority to the assignees, to discharge their duties " whenever it should suit their pleasure and convenience.'"^ So also where the assignment con- tains a provision authorizing the assignees, in their discretion, to complete work begun, and to carry on the business for the purpose of using up materials.' * Montgomery's Ex'ors v. Kirksey, 26 Alab., 172; see remarks of Chief Justice Chilton, in giving the opinion of the court; Klapp's Assignees v. Shirk, 13 Penn. St. Rep., 589; Butler v. Stoddard, 7 Paige, 163; Connah V. Sedgwick, 1 Barb., 210; Dewees v. Adams, 4Ed\v.,21; Lockhart v. Wyatt, 10 Alab., 231; Graham v. Lockhart, 8 Alab., 9; Brooks v. Wim- mer, 20 Mo., 503; Nicholson v. Leviatt, 4 Sandf., 252; Mead v. Pliillips, 1 Sandf. Ch. Rep., 83. ^ Nicholson v. Leviatt, 4 Sandf., 252; Butler v. Stoddard, 7 Paige, 163. ' Browning v. Hart, 6 Barb., 91; Brigham v. Tillinghast, 15 Barb., 618. * Strong V. Skinner, 4 Barb., 559; Austin v. Bell, 20 John. R., 442; Sheldon v. Dodge, 4 Denio, 217; Grover v. Wakeman, ut supra; Searing V. Brinkerhoff, 5 John. Ch. R., 329; Murry v. Judson, 5 Seld., 73; Plank V. Schermerhorn, 3 Barb. Ch., 644; Litchfield i>. White, 3 Seld., 438; Wright V. Linn, 16 Texas, 34. ^ Sangstone v. Gaitlier, 3 Md., 11. ° Woodburn v. Mosher, 9 Barb., 255. ^ Dunham v. Waterman, 3 Smith, 9; see also Hart v. Crane, 7 Paige, 37. 286 TRUSTS FOR THE BENEFIT OF CREDITORS. So, also, if it authorize the assignee to sell on credit/ But when a construction may be given which will sustain the assignment rather than defeat it, such construction will be given ; ^ as where the direc- tion is to conA'Crt the assigned property into money as soon as reasonably practical, wath due regard to the interest of the parties concerned.^ But w^here the assignees are authorized to sell for other than money it vitiates the assignment : as where they are directed to " convert the property into money or other means." ^ Whenever the assignment in trust to pay debts, includes real property, the purposes of the trust must be such as are authorized by the statute,^ w^iich is "^0 sell lands for the benefit of creditors^ If therefore, the trust in such assignment be for any other purpose not enumerated in the statute, no title vests in the trustee. '^ The spirit of the decisions in New York upon these questions appears in the remarks of Chancellor Walworth, quoted by Mr. Willard in his Treatise on ^ Nicholson v. Leavitt, 2 Seld., 510-; Burdick v. Post, 12 Barb., 168, alTd 2 Seld., 522; Porter u. Williams, 5 Seld., 142; D'lveruois v. Leavitt, 23 Barb., G3; Barney v. Griffen, 2 Comst., 365. '' Kellogg V. Slauson, 1 Kern., 302, affg 15 Barb., 56. = Bellows V. Partridge, 19 Barb., 176; see also Wliitney v. K rows, 11 Barb., 198; Nichols v. McEwen, 21 Barb., 65; Clark v. Fuller, 21 Barb., 128. * Brigham v. Tillinghast, 3 Kern., 215. M R. S., 728, sec. 55. ^ Willard's Eq., 247; Barmim u. Hempstead, 7 Paige, 568; Shedon v. Dodge, 4 Denio, 217; Boardman v. Holliday, 10 Paige, 223; Strong v. Skinner, 4 Barb., 559; see Darling v. Rogers, 22 Wend., 483. TRUSTS FOR THE BENEFIT OF CREDITORS. 287 Equity Jurisdiction.^ Chancellor Walworth held that an assignment for the benefit of creditors which attempted to appropriate a part of the assignor's property for the use of his wife, to satisfy an alleged claim in her favor, which she could not have recov- ered by any suit or proceeding in law or equity, was void as against creditors. The chancellor observes : " If the property of the assignor, at the time of the assignment, was not sufficient to pay all his other debts, and this alleged claim also, or so much of it as was attempted to be secured by this assignment, then the assignment was a fraud upon the creditors, inasmuch as it would deprive them of the power of ever obtaining payment of the whole of their debts.^ On the contrary, if the defendant had ample prop- erty to pay all his debts, including the debt due to the complainant, then it was a fraud upon his cred- itors to assign all his property to an assignee, and to authorize such assignee to employ the proceeds thereof in defending suits which might be brought against the assignor by his creditors to recover their several debts.^ For it is equally fraudulent, under the statute, to make an assignment of property for the purpose of delaying creditors in the collection of their debts, as for the purpose of defeating them in their final collection.* And this provision of the assignment could have been inserted for no other » Willard's Eq., 247; Plank v. Schermerhorn, 3 Barb. Ch., 644; Green r. Frieber, 3 Md., 11. * Hooper v. Tuckernian, 8 Sandf., 311. 3 Mead v. Phillips, 1 Sandf. Ch., 83; Sewall v. Russell, 2 Paige, 175. * Hooper v. Tuckerman, 3 Sandf,, 311. 288 TRUSTS FOR THE BENEFIT OF CREDITORS. purpose than to enable the assignee to leave the property in the possession and under the control of the assignor, and thus to defend suits which might be brought against him to obtain possession of the assigned jDroperty, and retain the expense of such defence out of the proceeds of such property."^ Wherever the debtor includes in his assignment any provision which looks to his own personal advan- tage as against the interest of the creditors, or where he provides for a continuance of his own supervision over and control of the assigned property, inconsist- ent with the transfer of the absolute legal title to the assignee, it will raise a presumption of a fraud- ulent intent ; and if there be a fraudulent intent on the part of the debtor, or if such provisions or reservations are contrary to the letter or spirit of statutory prohibitions, they will vitiate the assign- ment.'"^ Thus, all requirements which are coercive of creditors, imposing conditions that are not equit- able or just, before they shall be entitled to the benefits of the assignment, render the assignment void.^ Mr. Kent, in his Commentaries,* remarking upon this subject, says : "It is admitted in some of the cases, that the debtor may indirectly exert * Mead v. Phillips, 1 Sandf. Ch., 83; Sewall v. Russell, 2 Paige, 175. ' Rathhun v. Plainer, 18 Barb.. 272; Wilson v. Forsyth, 24 Barb., 105; Webb V. Daggett, 2 Barb., 9; Hj'slop v. Clark., 14 Johns., 458; Searing v. Brinkerhoff, 5 John. Ch., 329; Austin v. Bell, 20 John., 452; Wakeman V. Grover, 11 Wend., 181; Collomb v. Caldwell, 16 N. Y., 484; Armstrong V. Byrne, 1 Edw., 79; Lentilhom v. Moffat, 1 Edw., 450; Strong v. Skin- ner, 4 Barb. S. C. R., 546. ' Berry v. Riley, 2 Barb., 307; Searing v. Brinkerhoff, ut supra; Aus- tin V. Bell, ut supra. * 2 Kent's Cum., 534, and authorities cited by him. TRUSTS FOR THE BENEFIT OF CREDITORS. 289 a coercion over the creditors through the influence of hope and fear, by the insertion of a condition to the assignment, that the creditors shall not be entitled to their order of preference, unless within a given and reasonable time^ they execute a release of their debts by becoming parties to the instrument of assignment containing such a release, or by the execution of a separate deed to that effect.^ In Jackson v. Lomas,^ there was a proviso to the assign- ment, that in case any creditor should not execute the trust deed Avhich contained, among other things, a release of the debts by a given day, he should not be entitled to the benefit of the trust deed, and his share ivas to be paid bade to the debtor. It seems to have been assumed throughout that case, that such a provision would not affect the validity of the as- signment. Whatever might have been the under- standing in the case, such a conclusion is not well warranted by the language of many of the Ameri- can cases, and a deed with such a reservation would, under them, be invalid. The debtor may deprive the creditor who refuses to accede to his terms, of his preference, and postpone him to all other credi- tors ; but tlien he will be entitled to be paid out of ■ Whart. Dig., title Debtor and Creditor, E; Pearpont & Lord v. Graham, 4Wash. Cir. C. Rep., 232; Ilalsey v. Whitney, 4 Mas. Rep., 206. The reasonableness of the period for the debtor to come in will depend on cir- cumstances. " The King v. Watson, 3 Price Rep., 6; Lippencot v. Barker, 2 Binn. R., 174; Chever v. Clark. 7 Serg. & Rawl., 510; Scott v. Morris, ib., 123; Wilson r. Knipley, 10 S. & R., 439; Halsey v. Whitney, ut supra; De Caters v. Le Ray De Chaumont, 2 Paige Rep., 402; Canal Bank v. Cox, 6 Greenl. Rep., 395. ' 4 T. Rep., 1G6. 19 290 TRUSTS FOR THE BENEFIT OF CREDITORS. the residue of the property, if there should be any, after all the other creditors who released and complied with the condition of the assignment, are satisfied. If the condition of the assignment be that the share which would otherwise belong to the creditor who should come in and accede to the terms and release, shall, on his refusal or default, be paid back to the debtor or placed at his disj^osal by the trustee, it is deemed to be oppressive and fraudulent, and destroys the validity of the assign- ment, at least against the dissenting creditors." ^ It has often been held that a provision in the deed of assignment, that the residuum, after paying the preferred creditors, or those signing the deed, or executing a release of the debtor, were fraudu- lent and oj)pressive and destructive to the validity of the instrument as against all who are not parties or do not assent thereto.^ If any part of the pro- perty be reserved to the debtor, or be to be re- assigned to him before payment of the entire claim of the creditors, the assignment is void.*^ But when the debtor assigns his property for the benefit of all his creditors, and stipulates for re- lease, and provides that the dividends of those ' McAllister v. Marshall, 6 Binn. R., 338; Hyslop v. Clark, 14 John. R., 458; Soaving v. Brinkerhof}\ 5 J. C. R., 329; Austin v. Bell, 20 John. R., 442; Borden v. Sumner, 4 Pick., 265; Ingraham v. Wheeler, 6 Conn. R., 277; Atkinson v. Jordan, 5 Ham. O. R., 294; Lentilhon v. Moffat, 1 Edw. Ch., 451 ; Ames v. Blunt, 5 Paige, 16, 18; Graves v. Roy, 13 La. Rep., 457. " Ramsdell r. Sigerson, 2 Gilm. R., 78; Conckling v. Carson, 11 111. Rep., 503; Goodrich v. Do^vnes, 6 Hill Rep., 438; Leitch v. Hollister, 4 Comst. R., 211; Barney v. Griffin, 4 Sandf., 311; Ingraham v. Griggs, 13 S. 8cM., 22. ' Green v. Trieber, 3 Md., 11. TRUSTS FOR THE BENEFIT OF CREDITORS. 291 creditors who refuse to become parties to the assign- ment, shall be paid over to the assignor, is valid/ So also where a firm assigned their partnership property for the payment of the partnership debts, stipulating for the payment of the surplus to them- selves, is valid.^ An examination of all the authori- ties upon this subject leads to this conclusion : that the assignment, to be valid, and consequently to transfer the legal title to the assignee, must be for a lawful purpose, and made in good faith ; and when so made and- executed, the title to the property is vested in the assignee as trustee for the creditors, who are made the cestui que trusts. And as the validity of the assignment depends upon the bona fide intention of the assignor and the legality of his purpose, when either or both these are wanting, the assignment is void as to persons whose rights are intended to be prejudiced thereby.^ It has already been stated that the assignment by the debtor of his property to his creditors will not be valid and binding upon either, until there has been an acceptance of the assignment by the credi- tors.'^ Where this acceptance is required, either by law, or the conditions of the assignment, it is not necessary that all the creditors accept the as- signment or execute the deed to make the instru- ment operative, unless it is so conditioned. For as ' Heydock v. Stanhope, 1 Curtis Ct Ct. Rep., 471. "^ Hubbern v. Waterman, 38 Penn. St., 414. ^ Rathbun v. Plainer, 18 Barb., 272; Wilson v. Forsyth, 24 Barb., 105. * Crosby v. Hillyer, 29 AVend., 280; Cunningham v. Freeborn, 1 Edw., 25G; 3 Paige, 557; 11 Wend., 241. 292 TRUSTS FOR THE BENEFIT OF CREDITORS. soon as the assignment has been accepted, or the deed been executed by one or more of the creditors, the contract is complete, and the legal title of the property passes from the assignor to the assignees/ When the assignment is beneficial to the creditors and does not delay them in the collection of their debts, the assent of a single creditor will be suffi- cient, although others refuse.'^ And where an at- torney holds the claim of one or more of the credi- tors for collection, his assent for and on behalf of his clients will be sufficient.^ As the validity of the assignment depends upon the expressed or presumed assent of the creditors, where it has been executed in good faith and for a legal purpose by the debtor, it becomes important to determine when and how that assent may be given. If the assignment require the signature of the creditors, before it shall be deemed operative, then such signatures will be ne- cessary to transfer the estate from the debtor to the creditors.* But if such signatures are not required by the terms of the instrument, then the verbal as- sent of the creditors will be sufficient.^ Or, their * Halsey v. AVhitney, 4 Mass., 206; Hastings v. Baldwin, 17 Mass., 556; North V. Turner, 9 Serg. & Raw., 244; De Forest r. Bacon, 2 Conn. R., 633; see 17 Mass., 454. * Burrill on Assignments, 343, and quotes Rankin v. Lodor, 21 Alab., 380; Mauldin v. Arniistead, 14 Alab., 702; Shearer v. Loftin, 26 Ind., 703. * Hatch V. Smith, 5 Mass., 53; Vernon v. Morton, 8 Dana, 247; Johnson V. Ogleby, 3 P. Wm., 277. * Story's Eq., sec. 1036, a; Garrard v. Ld. Lauderdale, 3 Sim. Rep., 1; Simmonds v. Pallas, 2 Jones & Lat., 489; Jewett v. Woodward, 1 Edw., 195. " Story's Eq., sec. 1036, a; Brooks v. Marbury, 11 Wheat., 78. TRUSTS FOR THE BENEFIT OF CREDITORS. 293 assent may be manifested by seeking to avail them- selves of the benefits of it.* As to the time when the assent should be given, if there is no time fixed upon by the assignment, then it is not necessary that the assent should be given, either at the time of the execution of the assign- ment by the debtor, or immediately thereafter. But the instrument will not be operative until such as- sent is given, because the contract is not complete until then.'^ If the instrument fix a time within which the assent of the creditors must be given to entitle themselves to the avails of the assignment, they must comply with such condition, or be exclu- ded from the benefit of the trust.^ But in case of absent creditors who have no notice of the assign- ment it is different.'* They will be permitted to come in within a reasonable time after notice, and if the assignment be beneficial to them, their assent will be presumed.^ Where the assignment is to trustees and is for the advantage of the creditors, it has been held, that the assignment takes effect from the date of its execution, because, being for tlieir benefit, their > 2 Kent's Com., 533; Bradshaw v. West, 7 Pet. U- S. R., 608; Cun- ningham V. Freeborn, 1 Edw. Ch. Rep., 262; Ellison v. Ellison, 6 Ves., 656; United States v. Bank of U. S., 8 Rob. (La.), 262, and 412. " Ilalsey v. Whitney, 4 Mas., 206; Lawrence v. Davis, 3 McLean, 177; Diinch V. Kent, 1 Vern., 260, 319. ' Phoenix Bank v. Sullivan, 9 Pick., 410; De Caters v. Le Ray. &c., 2 Paige, 490; Jewett v. Woodward, 1 Edw., 195. ^ Story's Eq., sec. 1036, a; Phoenix Bank v. Sullivan, «f sw/^ra ; De Caters v. Le Ray De Chaumont, 2 Paige, 490. ' Adams v. Blodgett, 2 Wood. & M. R., 233; North v. Turner, 9 Serg. & R., 436; Deforest v. Bacon, 2 Conn., 633. 294 TRUSTS FOR THE BENEFIT OF CREDITORS. assent is presumed until the contrary is shown/ It is not necessary that all the trustees named in the deed assent thereto, unless the instrument expressly require it. The assent of one or more of them to the assignment, will vest the legal estate in those assenting, although the others should not assent thereto .- It has already been stated that it is competent for debtors in failing circumstances, to make assign- ments preferring one creditor to another ; and that such preference will not invalidate the assignment. Such is the general law where there are no bank- rupt or other laws prohibiting such preferences.^ But in several of the States this preference is dis- allowed. In New Jersey, the statute requires that the assignment of an insolvent be for the equal benefit of all his creditors ; therefore an assignment which creates a preference is invalid,"* although made * Marbury v. Brooks, 7 Wheat. R., 5-56; also 11 id. 78; NicoU v. Mum- ford, 4 J. C.R.,529; Small v. Marwood, 9 B. & Cres., 300; Smith v. Wheeler, 1 Vent., 128. * NicoU V. Mumford, 4 Johns. Ch., 529; Neilson v. Blight, 1 Johns. Cas., 205; Moses v. Murgatroj-d, 1 John. Ch., 119; Duke of Cumberland V. Coddrington, 3 J. C. R., 216; Weston v. Barker, 12 John. R., 276. * 2 Kent's Com., 532, and following authorities, there cited: Pickstock v. Lyster, 3 Maule & Selw., 371; The King v. Watson, 8 Pr. Exch. Rep., 6; Wilt V. Franklin, 1 Binn. Rep., .502; Hendricks v. Robinson, 2 John. Ch. R., 307, 308; Stevens v. Bell, 6 Mass., 339; NicoU v. Mumford, 4 John. Ch. R., 529; Brown v. Minturn, 2 Gall. Rep., 5-57; Moor v. Collins, 3 Dev. N. C. R., 126; MotFat v. McDowal, 1 McCord Ch. R., 434; Buffum v. Green, 5N. H. R., 71; Haven v. Richardson, 5 N. H. R., 113; Marbury v. Brooks, 7 Wheat., 556; Brashear v. West, 7 Pet. U. S. Rep., 608; Suther- land, J., in Grover v. Wakeman, 11 Wend., 194; State of Maryland v. Bank of M'd., 6 Gill & J., 205; Marshall v. Hutchinson, 1 B. Monr., 305. * Elmer's Dig., p. 16; Varnum v. Camp, 1 Green's N J. R., 326; Garr V. Hill, 1 Stockt. R., 210; Brown v. Holcomb, ib., 297; Holcomb v. Bridge Co., ib., 457. TRUSTS FOR THE BE:NEFIT OF CREDITORS. 295 in New York where it would be good, yet to operate on property in New Jersey/ So also in Georgia, by statute,'^ all assignments and transfers of pro- perty by insolvent debtors giving preference, are declared fraudulent and void." The insolvent act of Massachusetts,'^ establishes the principle that when the debtor is unable to pay his debts, his property is to be equally divided among his creditors ; and if the insolvent has not been guilty of fraud or gross misconduct, he is to be discharged from liability upon surrendering all his property for the benefit of his creditors. In Ohio, the statute* prohibits assignments in trust, in contemplation of insolvency, with the design of preferring one creditor to another, and requires that they be made to enure to the benefit of all pro rata. In Connecticut, by statute,^ all assign- ments of lands, chattels or choses in action, made in view of insolvency, to any person in trust for creditors, must be made in writing for the benefit of all the creditors in proportion to their claims, and be lodged in the probate office of the district for record, or they will be void as to creditors.^ It has already been stated that a debtor in failing circumstances, and where there are no bankrupt or other special laws prohibiting it, may make a valid assignment of his property, real and personal, for the benefit of his creditors generally, or for a select ^ Varnura v. Camp, ut supra. ^ Du., 19, 1818; Prince Dig.. 164; Brown t.. Lee, 7 Geo. R., 267. ' 1838, chap. 163. * 1838. " 1828; see also St. of 1838, p. 300. 296 TRUSTS FOR THE BENEFIT OF CREDITORS. or preferred number or class of them, provided his intentions are honest, and the purposes of the as- signment legal. But an assignment for the benefit of creditors, though fraudulent in law or in fact, is valid and binding as between the assignor and as- signee, and such creditors as choose to accept its terms or take advantage of its provisions.^ So also a creditor who brings a trustee process against an assignee under a void assignment, ratifies his legal disposition of the property under the assignment, and consequently he cannot compel the assignee to account for property for which other creditors may hold him accountable or take from him.^ The next question arising is, when does an assignment thus made take effect? 1. When the assignment is to a trustee for the benefit of the creditors and it contains no conditions or terms which would be deemed prejudicial to the creditors — such as conditions of release or discharge of the debtor, or the postponement of the collection of their debts beyond the period of their maturity and the like, and the trustee accepts the deed and trust, the assignment takes effect on delivery. For the trustee accepting, and the assignment being for the benefit of the creditors, their assent is presumed, and the contract is complete.^ * Ames V. Blunt, 5 Paige, 13; Mills v. Argall, 6 Paige, 577; Seaman v. Stoiighton, 3 Barb. Ch., 344; see also Russell v. Lasher, 4 Barb., 232; Ontario B'k v. Root, 3 Paige, 478; Olmstead v. Herrick, 1 E. D. Smith, 310. ' Bishop V. Hart, 28 Vt., 71; Merrill v. Englesby, 28 Vt., 150. ' Hemi>stead v. Johnson, 18 Ark., 123; Marbury v. Brooks, 7 "Wheat. R., 556; also 11 do., 78; Nicoll v. Mumford, 4 J. C R., 529; Small v. Mar- wood, 9 B. & Ores., 800; Reed v. Robinson, 6 W. & S., 329; Clapp'a Assignees ». Shirk, 13 Penn. St., 589. TRUSTS FOR THE BENEFIT OF CREDITORS. 297 2. When the assignment is as above stated, but the trustee is not prepared to accept the trust with- out time to consider, the assignment will not take effect until the trustee signifies his acceptance/ But when the trustee is not present, his assent may be presumed for the purpose of giving effect to the deed;^ Or, if the trustee accept the deed without signifying his assent at the time, but afterward as- sent, the deed will take effect from the delivery. Also when the assignment was in the form of a let- ter assigning personal property to an absent credi- tor and sent to him by mail, the assignment was held to take effect from its date.^ 3. When the assignment is directly to the credi- tors themselves and conditioned upon their accept- ance, it will take effect at the time of acceptance according to its terms. It may be stated as a gen- eral rule, that when the assignment has been made in good faith by one party and accepted according to its terms by another party whose acceptance is contemplated in the instrument, the assignment » Crosby v. Hillyer, 24 Wend., 280; Lawrence v. Davis, 3 McLean, 177; Pierson v. Manning, 2 Mich., 446; Cunninghams. Freeborn, 11 Wend., 240. » Nicoll V. Mumford, 4 J. C. R., 522; Gait v. Dibrell, 10 Yerg., 146; 1 Am. Leading Cases, 96; Brevard t). Neely, 2 Sneed, 164, etc; Brown v. Minturn, 2 Gall. R., 557; Smith v. Wheeler, 1 Vent., 128; Burrill on Assignments, quotes the following, p. 348: Skepwith's Executors v. Cun- ningham, 8 Leigh, 271; Wilt v. Franklin, 1 Finn., 502; McKinney v. Rhodes, 5 Watts, 343; Read v. Robinson, 6 Wat. & Serg., 329; and see Moore v. Collins, 3 Dev., 126; Ward v. Lewis, 4 Pick., 518; Merrills v. Swift. 18 Conn., 257; 1 Amer. Lead. Cas., 96. 'Dargan v. Richardson, 1 Cheves Law, 197; Shubar v. Windings, ib., 218. 298 TRUSTS FOR THE BENEFIT OF CREDITORS. takes effect, and the legal title to the property is transferred from the assignor to the assignee.^ Upon general principles, it would seem that where the assignment is to trustees and they refuse to ac- cept the trust, that no title passes from the debtor, because, until there is an acceptance, either express or implied, the property in the hands of the debtor is subject to execution or attachment,^ and this view of the case was presented by Bell, J., in the case of Seal V. Duffy .^ But it is nevertheless held, that although the acceptance of the assignment is neces- sary to constitute the assignee trustee for the credi- tors, yet the assignment shall not fail for want of such acceptance. If made for the benefit of credi- tors, the assent of the trustee is not essential to its validity, and a court of equity on behalf of the creditors, will enforce the execution of the trust.^ In the case of King v. Donnelly^ the Chancellor held that if A. be named as a trustee of an express trust of an undivided interest in land, and he refuse to act, the legal title is nevertheless in him, and if a sale be necessary, the court may, by decree, ap- point a trustee to execute the trust, or direct an officer of the court to execute it. The Chancellor also held that had an appointment been necessary in ' Klapps's Assignees v. Shirk, 13 Penn. St. Rep., 589; Read v. Robin- son, 6 Wat. & Serg., 329; Brooks v. Marbury, 11 Wheat., 78; see Crosby V. Hillyer, 24 Wend., 280. ' 4 Barr., 274; see also Webb v. Dean, 2 Penn. St., 29. ^ Field V. Arrowsmith, 3 Humph., 442; Brevard v. Neely, 2 Sneed, 164 and 171 ; Burrill on Assignments, 307 ; King v. Donnelly, 5 Paige, 46 ; Daw- son V. Dawson, Rice's Ch., 243; Harris v. Rucker, 13 B. Monroe, 564. * 5 Paige, 46. TRUSTS FOR THE BENEFIT OF CREDITORS. 299 that case it would have been within the spirit of the statute providing for the appointment of trustees in case of the death of a surviving trustee, &c. The common law principle upon this subject is, where the person or persons appointed trustee refuse to ac- cept the office, so that there is no one to receive the legal estate, no estate passes : but the parties are in the same relation to the trust estate as though no trustee had been named,' and if the appointment were by will, the legal estate would vest in the heirs of the devisor ; ^ and this could not be unless the legal estate were deemed to be in him at the time of his death. ^ In assignments for the benefit of creditors, where they are made in good faith, and for lawful purposes, a trust may arise for the assignor. The residue which may remain in the hands of the trustee after paying all the debts, he will hold in trust for the debtor, whether it be so stipulated in the deed of assignment or not.'' But if the assignment be of all ' Towuson V. Tickel, 3 B. & Aid., 31; Hawkins v. Kemp, 3 East, 410; Smith V. Wheeler, 1 Ventr., 128. ^ Stacev V. Elph, 1 M. & K., 195. ' See remarks and authorities post, on Disclaimer; and for American authorities see Welib r. Dean, 21 Penn. St., 29; Brevard v. Neely, 2 Sneeds, 164; Reynolds v. Bank of Va., 6 Gratt , 174; Field v. Arrow- smith, 3 Humph., 442; Dawson v. Dawson, Rice's Ch., 243; King v. Don- nelly 5 Paige, 46; Brunner v. Storm, 1 Sandf. Ch., 357; Smith v. Schackle- ford, 9 Dana, 452; School v. Fisher, 30 Maine, 524; Taylor v Galloway, 1 Ham. (0.), 232; Jones v. Mafifet, 5 Serg. & Raw., 523; Christian v. Yan- cey, 2 P. & H. (Va.), 240; Brewster v. Striker, 1 E. D. Smith, 321; Bisco V. Royston, 18 Ark., 908; Nicolsv. Mumford, 4 Johns. Ch., 529; Brooks V. Marbury', 11 Wheaton, 97; North v. Turner, 9 Serg. & Raw., 244. ^Hall «. Denison, 17 Verm., 311; Rahm v. McElrath, 6 Watts, 151; Winteringham v. Lafoy, 7 Cow., 735; Burgin v. Burgin. 1 Ired. Law, 453; VanRossum v. Walker. 11 Barb. S. C, 237; Curtis v. Leavitte, 15N.Y., 120. 300 TRUSTS FOR THE BENEFIT OF CREDITORS. the debtor's property in trust for only a part of the creditors, making no provision for the others, the surplus thus undisposed of may render the assign* ment void as to the creditors unprovided for ; be- cause that surplus, if allowed to stand, would result as a trust to the debtor.^ If it appear upon the face of the deed that the debtor contemplated such sur- plus, as, by providing that the surplus, after j^aying the preferred debts, shall be re-assigned or paid back to the debtor, such assignment will be invalid.*^ The principle underlying these cases is, that the debtor shall act in good faith, and in no way, directly or indirectly, seek to benefit himself at the possible expense of his creditor or creditors by his assignment ; neither shall he expressly or by neces- sary implication seek to hinder or delay them in the collection of their debts. In England, at the death of an individual, his personal estate is vested by law in his personal rep- resentatives as a trust fund for the payment of his debts, and the testator is not allowed to create a special trust of his personal estate for that purpose so as to withdraw it from the administration of his executors.^ At common law the real estate of the testator was not liable for the payment of simple ' Dana v. Lull, 17 Verm., 390; Pierson v. Manning, 2 Mich., 445; but see 28 Verm., 150. "Lansing v. Woodworth, 1 Sandf. Ch., 43; Goddard v. Hapgood, 25 Verm., 351 ; Montgomery's Ex'rs. v. Kirksey, 26 Atab., 172; Green v. Trie- ber, 3 Md., 11; see also Doremus v. Lewis, 8 Barb. S. C, 124; Hooper v. Tuckerman, 3 Sandf. S. C, 311; Phippen v. Durham, 8 Gratt., 457. ' Hill on Trustees, 344, cites Jones v. Scott. 1 R. & M.. 255; Freake v. Cranefield, 4 M. & Cr., 499; Evans v. Tweedy, 1 Beav., 55. TRUSTS FOR THE BENEFIT OF CREDITORS. 301 contract debts unless by his will he made it so liable. But this rule is now done away by recent statutes/ and real estate is now chargeable with the payment of debts in case of deficiency of personal estate.^ The general rule, both of the English and American law is, that the personal estate is the primary fund, for the discharge of the debts, and is to be first applied and exhausted, before the real estate is liable unless the testator by his will shall otherwise direct.^ The order of marshalling assets in equity towards the payment of debts, is thus : 1. The general personal estate ; 2. Estates specially devised for the payment of debts ; 3. Estates descended ; 4. Estates devised, though generally charged with the payment; and it requires express words, or the manifest intent of a testator to disturb this order.'' ' 8 and 4 Will. IV., chap. 104; 3 Black. Com., 430; Co. Litt., 209 (a). ^ 2 Jarm. Pow. on Dev.. 644, etc; 6 Cruise's Dig., tit. 81, chap. 16, sec. 7, etc.; Moores r. Whittle. 22 Law J. Ch., 207 ; Ball «. Harris, 4 M. & Cr., 269; Bodwler v. Smith, Free. Ch., 264. = 4 Kent's Com., 421; Howel v. Price, 1 Pr. Wm., 291; King v. King, 3 Pr. Wm., 358; 8 Johns. Ch. R., 357; 9 S. & R., 73; Garnett v. Macon, 6 Call., 308; McKay i>. Green, 3 Johns. Ch., 56; Smith v. Wyckofl', 11 Paige, 49; Hawley v. James, 5 Paige, 318; Henry v. Graham, 9 Rich. Eq., 100; Lloyd V. Lloyd, 10 Rich. Eq., 469; Whitehead v. Gibbons, 2 Stockt., 230. * 4 Kent's Com., 421, and cites Stephenson v. Heathcote, 1 Edw. Rep., 38; Lord Inchiquin v. French, 1 Cox, 1; Webb i>. Jones, 1 Cox, 215; Bootle V. Blundell, 1 Meriv. Rep., 193; Barnewell v. Lord Cawdor, 3 Mad. Rep.. 453; Watson v. Brickwood, 9 Ves., 447; Livingston v. Newkirk, 3 Johns. Ch. Rep., 312; Livingston v. Livingston, lb., 148; Stroud v. Barnett, 3 Dana Ken. Rep., 394; Warley v. Warley, Bailey's Eq. Rep., 397; see also Gould V. Winthrop, 5 R. I., 819; Hanna's App., 31 Penn. St. Rep., 53; Powers V. Jackson, 13 Md., 443; Whitehead v. Gibbons, 2 Stockt., 230; Shaw V. McBride, 3 Jones Eq,, 173. 302 TRUSTS FOR THE BENEFIT OF CREDITORS. A distinction is to be observed between a mort- gage created by the testator on the estate devised, for a debt originally contracted by him, and one charged upon the estate when it came to him as the debt of another. If the mortgage is for a debt con- tracted by the testator or intestate, the personal es- tate will be held as a primary fund for its payment.^ But if the mortgage was created by another, and was an original charge upon the estate, the personal estate will not be the primary fund unless made so by the testator.^ This distinction prevails in all the States except New York, where it is abolished by statute, which provides, that whenever any real estate, subject to a mortgage executed by any ances- tor or testator, shall descend to an heir, or pass to a devisee, such heir or devisee shall satisfy and dis- charge such mortgage, out of his own property, without resorting to the executor or administrator of his ancestor unless there be an express direction in the will of such testator, that such mortgage be otherwise paid ; ^ consequently the decisions upon this point in New York are not in harmony with those of other States."' ' Gould V. Winthrop, 5 R. I., 319; 4 Kent's Cora., 421 ; Garnet v. Macon, 6 Call., 308; Hoes v. Van Hoesen, 1 Corns. R., 120; Kelsey v. Western, 2 Comst. R., 500; Mitchel v. Mitchel, 3 Md. Ch., 73; Woods v. Hunting- ford, 3 Ves., 128; Pockley ». Pockley, 1 Vern., 36. ' Cumberland v. Codrington, 3 John. Ch., 229; Gould v. Winthrop, 5 R. I., 319; Hoft^'s App., 24 Penn. St., 200; Dunlap v. Dunlap, 4 Desau., 305; McDowell V. Lawless, 6 B. Monr., 141. ' 2 Rev. St., 1846, p. 35, sec. 4; Mollan v. GrifFeth, 3 Paige, 402; Halsey V. Reed. 9 Paige, 446; Johnson v. Corbett, 11 Paige, 265; House v. House* 10 Paige, 158; Taylor v. Wendel, 4 Bradf., 324; Waldron v. Waldron, 4 lb., 114. TRUSTS FOR THE BENEFIT OF CREDITORS. 303 It has already been stated that, as a general rule, the personal estate is the primary fund for the dis- charge of debts. This is the rule in cases of intestacy, and under a will, where the testator does not manifest a different intention. But it is well settled that the testator can change the order of administration, and, if he desire, make his real estate the primary fund for the payment of debts or legacies;^ or he can, by so directing in the wall, convert his real into personal estate, and make it a common fund for such purposes f or he may exoner- ate the personal estate altogether; and, for deter- mining what was his intention in the premises, all parts of the will are to be considered.^ This gives rise to constructions by which the intention of the testator is to be ascertained. And, although it is the general doctrine of the courts that the intention of the testator to exonerate the personal estate from the payment of his debts, and to charge the same upon the realty, may be found by implication from the different parts and provisions of the will, yet it is seldom safe for one entrusted with the execution * Hill on Trustees, 353; Whitehead v Gibhons, 2 Stockt., 230; Loomis Appl., 29 Penn. St., 237. "^ Lorillard v. Coster, 5 Paige, 172; Hawley v. James, 5 Paige, 318; Gott V.Cook, 7 Paige, 521; Savage v. Burnham, 3 Smith, 5(51; Bramhall v. Ferris, 4 Kern., 41; Elliott v. Carter, 9 Gratt., 541; Cryder's Appl., 11 Penn. St. Rep,, 72; Loomis's Appl., 10 Barr., 387; Ford v. Gaithur, 2 Rich. Eq., 270; Simmons v. Rose, 20 Jur., 73. ' Gittens v. Steele, 1 Sw., 28; Marsh v. Marsh, 10 B. Monr., 363; Rus- ton V. Ruston, 2 Dall., 243; Jackson v. Sill, 11 Johns., 201; Bradhurst v. Bradhurst, 1 Paige, 331; Covenhoven v. Shuler, 2 Paige, 122; Rathbone V. Dyckman, 3 Paige, 9; Roberts v. Wortham, 2 Dev. Eq., 173; Plenty r. West, 17 Jur., 9; Hoes v. Van Hoesen, 1 Coras,, 122; McFait's Appl., 8 Barr., 290. 304 TRUSTS FOR THE BENEFIT OF CREDITORS. of the will to act upon such implied intention with- out first consulting the court and taking its direction. Because the court will not presume the testator intended to disturb that order which the law deems just, unless the several provisions of the will are such as clearly and necessarily to raise the implica- tion.* Therefore it has been held that where debts and legacies are charged on the real and personal estate, as where they are made a common fand for the payment of debts, etc., the personal estate is still to be taken as the primary fund.^ The fact that the testator has charged his real and personal estate with the payment of debts, legacies, etc., furnishes no evidence that he intended to charge his realty unnecessarily ; and hence, where he does not clearly signify an intention to convert the realty into personalty in the first instance, such a charge will be deemed to be in aid of the personal estate.^ So where there are legacies to be paid, and the per- ' Brnmmcl t'. Prothero, 3 Ves., 110; Stapleton v. Stapleton, 3 Ball &c B., 528; Milncs v. Slater,. 8 Ves., 305; Rapalye v. Rapalye, 27 Barb., 610; Hanna's Appl., 31 Penn. St. Rep., 53; Power v. Jenkins, 13 Md., 443; Henry r. Graham, 9 Rich's Eq., 469; Whitehead r. Gibbons, 2 Stockt., 230. '^ Tench i>. Cheese, 24 L. J. Ch., 717; Simmons v. Ross, 20 Jur., 73; Robinson v. Governors, 10 Hare, 19; Lupton v. Lupton, 2 Johns. Ch., 614; Dodge V. Manning, 11 Paige, 334; McKay v. Green, 3 Johns. Ch., 56; Hoes i;. Van Hoesen, 1 Coras., 120; Kelsey v. Western, 2 Corns., 500; McLach- lan V. McLachlan, 9 Paige, 534; Gould r. Winthrop, 5 R. I., 319; Adams V. Brackett, 5 Mete, 280; Hassenclever v. Tucker, 2 Binn., 525. ' Boughton V. Boughton, 1 House Lds. Cas., 406; Field v. Lister, 3 De G. Macn. & G., 857; Tench v. Cheese, 20 Fur., 717. But see Robinson v. Governors, 10 Hare, 19; and remarks of L. J. Knight Bruce, in Tench v. Cheese; Tatlock v. Jenkins, 1 Kay, 6.54; Dodge v. Manning, 11 Paige, 344; Kelsey v. Western, 2 Coms., 500; Tracy v. Tracy, 15 Barb., 503; see Elliott V. Carter, 9 Gratt., 541; Dugan v. Hollins, 4 Md, Ch. Decis., 139. TRUSTS FOR THE BENEFIT OF CREDITORS. 305 sonal estate is not sufficient to pay the debts and legacies, it frequently becomes an important consid- eration whether the legacies are to abate, rather than charge the realty. This question cannot arise where both debts and legacies are made a charge upon the real and personal estate. But where, from the language of the testator or the provisions of the will, there arises doubt as to his intention, strict reference must then be had to the order of mar- shalling the assets, as established by law. It is a settled rule of law that a pecuniary or general legacy is not a charge upon the realty, un- less the testator has expressly, or by necessary im- plication, manifested such an intention.' But where several legacies are given, and there is no express provision made for their payment, but a general residuary disposition is made of the whole estate, blending the realty and personalty together in a common fund, the real estate will be charged with the payment of legacies as well as debts;' because ' Ripple V. Ripple, 1 Raw., 386; Stevens v. Gregg, 10 G. & J., 143; Lup- ton V. Lupton. 2 Johns. Ch. Rep., 618; Harris v. Fly, 7 Paige, 421; Grid- ley V Andrews. 8 Conn., 1; Paxson v. Potts, 2 Green's Ch., 313; Wright's Appl 12 Penn. St. Rep., 258; Brandt's Appl., 8 Watts, 198; Hoes v. Van lioesen, 1 Corns.. 120. See Hanna's Appl., 31 Penn. St. Rep., 53; Shaw .. McBride, 3 Jones's Eq., 173; Sims.. Sims, 2 Stockt., 158; White- head 1,. Gibbons, 2 Stockt.. 230; in re McCrackon's Est., 29 Penn. St. Rep., 496; see HalloweU's Est., 23 Penn. St. Rep., 223. ^ Mirehouse v. Scaife, 2 M. & Cr., 696; Bench v. Biles, 4 Mad.Rep., 187; Hassel v. Hassel, 2 Dick., 526; Cole v. Turner, 4 Russ., 376; Brudenell i>, Boughton, 2 Atk., 268; Simmons v. Rose, 39 Eng. L. and E. Rep. 89; Lewis V Darling, 16 How. U. S. Rep., 10; Downman v. Rust. 6 Rand.^ 587; Adams v. Bracket, 5 Mete, 280; Nichols t^.Postlethwait, 2 Dall., 131 ; Gridley v. Andrews, 8 Conn., 1; Von Winkle r. Van Houten, 2 Green, Ch., 172; Carter v. Balfour, 19 Alab., 815; Buckley v. Buckley, 11 Barb., 20 306 TRUSTS FOR THE BENEFIT OF CREDITORS'. the " residue " necessarily implies all that remains after satisfying previous gifts. But where there are specific devises of real estate previously made, it cannot be inferred that the testator intended such specific devise should blend and become a part of the common fund.^ But whether the legacies are or are not to be a charge on the real estate is always one of intention, to be gathered from the will.'^ Where there is any uncertainty whether the legacies are intended to be a charge on the real estate, the trustee or executor should not act with- out the direction of the court ; because, a general legacy not being a charge on the realty, unless so provided in the will, if the executor pay it out of the personalty, and thereby render the personal es- tate insufficient to pay the debts, he will be liable.^ The personal estate being, prima facie, the pri- mary fund for the payment of debts and legacies, before the contrary can be found to be the intention of the testator, such presumption must be clearly and unequivocally rebutted.** And when the real 43; Tracy v. Tracy, 15 Barb., 503; [see O'Brien v. Mooney, 5 Diier. 51;] Dodge V. Manning. 11 Paige, 334; Hoes t). Van Hoesen, 1 Coras., 120; Kelsey t). Western, 2 Coras., 500; Lloyd v Lloyd, 10 Rich. Eq., 469; McHardy v. McHardy, 7 Flor., 301; [see Reynolds v. Reynolds, 16 N. Y., 257 ;] RafFerty v. Clark, 1 Brad., 473 ; Clyde v. Simpson, 4 Ohio, (N.S..) 445. * Paxson V. Potts' Adm'rs, 2 Green, Ch., 320; but see Francis v.Clemon, 1 Kay, 435. * Miles V. Leigh, 1 Atk., 574; Jones v. Selby, Free, in Ch., 288; Minor V. Weeksteed, 3 Bro. C. C, 627. 'See Murdock's App., 31 Penn. St. Rep., 47; Hanna's App , lb., 53; Sims V. Sims, 2 Stockt., 158; Looniis' App., 29 Penn. St. Rep., 237; Derby v. Derby, 4 R. I., 414; Dugan v. Ilollins, 11 Md., 41. ^ As to what has been deemed sufficient to rebut such presumption, see Jones V. Williams, 8 Jur., 373; Aubrey v. Middleton, 2 Eq. Ca. Abr., 497; Henwell v. Whitaker, 3 Russ., 313; Dover v. Gregory, 10 Sims., 393. TRUSTS FOR THE BENEFIT OF CREDITORS. 307 estate is charged in aid of the personal estate, the personalty will continue to be the primary fund; and so a devise by which the debts are made a charge upon the real estate generally, will be deemed to be only in aid of the personalty.^ So averse are the courts to reversing the order of marshalling assets for the payment of debts and legacies that they will seldom do it where there is not an express direction in the will, or an impli- cation as certain and unequivocal as an express re- quirement. And wherever the expressions are such that they deem such a construction warranted, the debts are usually held to be paid ratably out of the real and personal estate. And especially Avhere the real and personal estates are, by the terms of the will, converted into a common fund in trust for the payment of debts, they contribute ratably for such purpose.^ These questions become important to the creditor in determining Avhere he is to look for the trust out of which his claims are to be satisfied. This question will be more fully discussed when the powers and duties of trustees are considered. ' Hartley v. Hurle, 5 Ves., 540; Walker v. Hardwick, 1 M. & K., 39G; Samwell v. Wake, 1 B. C. C, 144; Keysey's Case, 9 S. & R., 72; Kelscy V. Western, 2 Corns., 500; Hancok v. Miuott, 8 Pick., 29. ^ Simmons v. Rose, 20 Jur., 73; Adams v. Bracket, 5 Mete, 282; Cry- der's AppL, 11 Penn. St. Rep., 72; Loomis' Appl., 10 Barr., 387; Ford v. Gaither, 2 Rich. Eq., 270; Elliott v. Carter, 9 Gratt, 541; Moses v. Mur- gatroud, 1 Johns. Ch. Rep., 119; Benson v. Le Roy, 4 Johns. Ch., 6-51. 308 TRUSTS FOR THE PAYMENT OF LEGACIES. TRUSTS FOR THE PAYMENT OF LEGACIES. n A trust is raised for the benefit of legatees when a testator has charged his estate with the payment of legacies and there is a sufficiency for that pur- pose after the payment of the debts of the estate. This sufficiency is necessary to raise the trust ab- solutely, the whole estate being charged, first, with the duty of discharging those obligations the testa- tor is under to his creditors.^ The entire estate of the testator, real and per- sonal, in the hands of his executors and devisees, is a trust fund, if need be, for the payment of all legal demands and liabilities — not merely personal — ex- isting against the testator at the time of his death, as well those which are due as those to become due. And when the testator has not himself determined the order and mode of payment the law determines it. The assets are marshalled thus for the payment of debts '.'"^ 1. The general personal estate. 2. Estates especially devised for the payment of debts and for that purpose only. 3. Estates descended. 4. Estates specifically devised though generally charged with the payment of debts. ^ 4 Kent's Com., 421 ; Watkins v. Holman, 16 Peter's Rep., 25; Wilson V. Wilson, 13 Barb., 252; Stroud v. Barnett, 3 Dana Rep., 394. "" Livingston v. Newkirk, 3 Johns. Ch. Rep., 312; Hoes v. Van Hoesen, 1 Coins., 121; McKay v. Green, 3 Johns. Ch. Rep., 56; Lupton v. Lup- ton, 2 Johns. Ch. Rep., 614; Stuart v. Kessani, 11 Barb., 271; Fisher v. Fisher. 1 Brad., 335; Gould v. Winthrop, 5 R. 1., 319; Barnwell v. Thread- gill, 3 Jones's Eq., 50; Greenlee v. McDowell, 3 Jones's Eq., 325. TRUSTS FOR THE PAYMENT OF LEGACIES. 309 Legacies are to be considered in the order in Avliich they are liable to abate or cease to be a charge upon the estate of the testator by reason of the insuffi- ciency of the estate to pa}^ the debts, etc. In the absence of an intention on the part of the testator to make his legacies a charge upon the realty, they are to be paid only out of the personal estate;^ and in case of insufficiency of the personal estate to pay the debts, the legacies will abate f and where there is a sufficiency to pay the debts, but not to pay the legacies, the residiiary legacies will be the first to abate ; for a residuary legacy is one which is to take effect after satisfying all pre- ceding gifts.^ But even in cases of residuary lega- cies, there are instances where it is deemed to be contrary to the intention of the testator that they should abate. In the case of Dyose v. Dyose,'' Lord Cowper was of the opinion that the residuary be- quest, although there was a deficiency because of waste committed, ought not to abate. The case was this. The testator was possessed of ^£20,000, con- sisting of East India stock, bank stock, and money in the funds ; and by his will he gave to his two younger sons .£3,000 each, and the surplus to his ' Hoes V. Van Iloescn, 1 Corns., 121; Lupton v. Lupton, 2 Johns. Ch., 614; Livingston v. Livingston, 3 Johns. Ch., 148; Tole v. Hardy, 6 Cow., 333; Dodge u. Manning, 11 Paige, 334; Reynolds v. Reynolds, 2 Smith, 257. But see Tracy v. Tracy, 15 Barb., 503. ' Lupton V. Lupton, 2 Johns. Ch., 614. 'Gould V. Winthrop, 5 R. I., 319; Roper on Legacies, 411; in re McCracken's Estate, 29 Penn. St. Rep., 426; Derby v. Derby, 4 R. I., 414; Lewis V. Darling, 16 How. U. S., 1. * 1 Pr. Wm.. 305. 310 TRUSTS FOR THE PAYMENT OF LEGACIES. eldest son. He appointed his wife executrix, and she married B. who wasted the estate. Lord Cow- per was of the opinion that the eldest son was to be considered legatee for the value of what Avould have been the surplus after the payment of the debts and legacies, had there been no waste of the assets, upon the ground of the testator's knowledge of the amount of his property, and of his presumed intention to give the residue as a particular bequest to his eldest son.^ This decision was questioned by Lord Thurlow in the case of Fonnereau v. Poyntz,^ where he thought Lord Cowper erred in mixing up the affair of the executrix having wasted the estate. He placed it upon the same basis as though the testator had given legacies larger than the value of the estate, and then the residue to another, when there could be no residue. The general rule on the subject is that the intention of a testator in making a specific bequest, or giving a pecuniary legacy, cannot be controlled by the statement of his fortune.'^ This is a mere question of intention on the part of the testator ; and if such an intention can be found, the residuary legacy will not abate. Thus, in the case of Farmer v. Mills,* the testator gave certain annuities, directing that the sums set apart to secure them, should, as the annuitants died, sink ^ See preceding note. " 1 Bro. C. C, 478; and see Lord Eldon in ex parte Chadwin, 3 Swans., 387. ' Fonnoreau v. Poyntz, 1 Bro. C. C, 478; see Roper on Legacies, 302; Chambers f. Minchin, 4 Ves., 675. * 4 Russ, 86; see also Scott v. Salmond, 1 Myl. & K., 363; Att. Gen. v. Poulden, 3 Hare, 555. TRUSTS FOR THE PAYMENT OF LEGACIES. 311 into the residue of his personal estate. Then, after- wards, by codicil, he stated that it was probable that there might be a deficiency in the interest of his property to pay the annuities, and in such case he directed that an equal deduction should be made from each annuity ratably according to its amount. The estate proving deficient, the question arose whether, upon the death of any annuitant, the sum set apart to secure his reduced annuity should be applied to increase the other annuities, until they made up the amount given by the will in the first instance, or whether it should go to the residuary legatee. Sir John Leach, M. II., held that the tes- tator, by his codicil, had directed the reduction of the annuities in case of deficiency, and therefore, they who received the reduced annuities, received all the testator intended, and so the sum went to the residuary legatee.^ But in this case had it re- mained as exprebsed in the will in the first instance, the residuary legatee would have taken no more than would have remained after making good the annuities, for such would have been the manifest intention of the testator. And where there is a specific devise of land for the payment of debts, unless the personal estate is manifestly intended to be exonerated, it will still be the primary fund, even though, by so considering it, the general and residuary legacies should abate.^ ' See preceding note. » Rhodes V. Riidge, 1 Sim., 79; Dolman v. Weston, 1 Dick., 26; Walker V. Ilardwick, 1 M. & K., 397; AVhite v. White, 2 Vern., 43; Doleman v. Smith, Free. [Ch., 4-56; Ilartly t-. Hurle, 5 Ves., 540; Watson v. Brick- wood, 9 Ves., 447; Hanua's xVppl., 31 Penn. St. Rep., 53; Henry v. Gra- 312 TRUSTS FOR THE PAYMENT OF LEGACIES. This folloAvs from the principle, that although the real estate is charged with the payment of debts, generally or specially, unless it appears that the testator intended to exonerate the personalty, it is still the primary fund, and must be first exhausted. And, since general or pecuniary legacies are not a charge upon the realty unless made so by the testa- tor, if there is not a sufficiency of the personal es- tate to pay the debts, the pecuniary legacies must fail ; or if there be enough only to pay the debts and the general legacies, then the residuary legacy must fail. There is this exception, however, to be kept in mind : where the legacy is not a gratuity, but is based upon a valuable consideration, and is accepted as such, it will not abate with the general legacies/ Thus, where the testator gives to his wife a certain sum in lieu of dower, if she accept that sum and re- linquish dower, the transaction is in the nature of a contract, and her legacy will not abate with the general legacies.^ Where the legacies are, with the debts, charged upon the land, the personalty is still the primary fund for their payment, and the land will not be appropriated for that purpose until the personalty is exhausted, unless the testator order ham, 9 Rich. Eq., 100; Reynolds v. Reynolds, 16 N. Y., 257; Sims v. Sims. 2 Stockt., 158; Whitehead v. Gibbons, ib. 230; Harrison v. Has- kins, 2 P. & H. (Va.), 388; Dugan v. Hollins, 4 Md. Ch. Decis., 139. • Blower v. Morrett, 2 Ves. Sen., 420; Biirridge v. Bradley, 1 Pr. Wm., 127; Davenhill r. Fletcher, AmbK, 244; Heath v. Dendy, 1 Russ., 543; Connard's Appl., 33 Penn. St. Rep., 47; Hickey v. Hickey, 26 Conn., 261; see Power t;. Jenkins, 13 Md., 443; also Dugan d. Hollins, 11 Md.,41; Gaw t', Huffman, 12 Gratt., 628; Mayo v. Bland, 4 Md. Ch. Dec, 484; Williamson v. Williamson, 6 Paige, 298; Isenhart v. Brown, 1 Edw., 411; see Stewart v. Chambers, 2 Sandf. Ch., 382. TRUSTS FOR THE PAYMENT OF LEGACIES. 313 the land to be absolutely converted into a personal fund for such purpose/ It has been held very gen- erally in England and in this country, that where a power of sale of the real estate is given, and the proceeds thereof, together with the personalty, are constituted a joint fund for the payment of debts, legacies, etc., they are to contribute ratably for that purpose.' But the more modern doctrine seems to be that, unless the intention of the testator ap- pear to be to convert the real estate out and out, the mere blending of it with the personalty in a com- mon fund, will not exonerate the personal estate from being the primary fund for the payment of debts and legacies. Where there is a general charge upon the real and personal estate for the payment of legacies, the personal estate being the primary fund, must be first exhausted before the real estate can be appropriated f and hence, if a legatee seek to charge the land in ' Boiighton .. Boughton, 1 House of Lords' Cas., 406; Tidd .. Lister, 3 De G. Macn. k G., 857; Tatlock v. Jenkins, 1 Kay, 654; Teneh v. Cheese, 24 L J Ch., 717; but see Robinson i'. Governor, 10 Hare, 19; Dodge v. Mannin-, 11 Paige, 334; McKay v. Green, 3 Johns. Ch., 56; Hoes v. Van Hoesenri Corns., 120; Kelsey v. Western, 2 Conist., 500; Dodge v. Man- nin- 1 Comst., 298; Chase v. Lockerman, 11 Gill. & J-, 186; Fenwick v. Chrpman, 9 Pet., 466; Leavitt v. Wooster, 14 N. H-, 5-50; Hancock v. Minot 8 Pick., 29; but see Lewis v. Darling, 16 How. U. S., 10. ^ Cr'adock V. Owen, 2 Sm. & Giff., 241; Robinson v. Governors, 10 Hare, 19; Tatlock v. Jenkins, 1 Kay. 654; Simmons v. Rose, 20 Jur., 73; Elliott V. Carter, 9 Gratt., 541; Ford v. Gaithur, 2 Rich. Eq., 270; McCampbell V. McCampbell, 5 Litt., 99; see Cryders' AppL, 11 Penn. St. Rep., 72; Loomis' Appl., 10 Barr., 387. ^ Dodge V. Manning, 11 Paige, 334; McKay v. Green, 3 Johns. Ch., 56; Hoes V. Van Hoesen, 1 Coms., 120; Hanna's Appl., 31 Penn. St. Rep., 53; Whitehead v. Gibbons, 2 Stockt., 230. 314 TRUSTS FOR THE PAYMENT OF LEGACIES. the hands of the heir or devisee, he must show that the personal estate has been exhausted.^ And where sufficient personal property came into the hands of the executor to pay the debts and legacies, and he has wasted it, the real estate, though generally charged, will not be liable f because it is deemed to have been the intention of the testator to charge the lands only upon the insufficiency of the personal estate. There is a distinction to be observed between a general charge of legacies upon the estate or land, and a devise of land subject to the payment of a specified sum of money : for in such case the speci- fied sum must come out of such land, as the gift is contained only in such direction ; ^ and this will exonerate the personalty from the payment of such sum. In this a legacy differs from a debt : for the debt was a pre-existing charge upon the personal estate, and such direction of the testator does not indicate an intention to remove it ; while the legacy, in its very creation, was made a specific charge upon the realty .'* As a general rule, where the legacies are a charge on the real and personal estate, they are a specific lien thereon, and cannot be divested, except by pay- ' Dodge r. Manning, 1 Corns., 298; Stuart v. Kissam, 11 Barb., 271; Fisher v. Fisher, 1 Bradf., 335; Dodge v. Manning, 11 Paige, 334; Hoes v. Tan Hoescn, 1 Corns., 120. - Hanna's Appl., 31 Penn. St. Rep., 53; Sims v. Sims, 2 Stockt., 158; Qucre, in New York, see Wilks v. Harper, 3 Sandf. Ch., 6; Sims v. Lively, 14 B. Monr., 433. = Phipps V. Annesley, 2 Atk.. 57; Wood v. Dudley, 2 Bro. C. C, 316; Spurway v. Glyn, 9 Ves., 483; Hoover v. Hoover, 5 Barr., 351; Holliday r. Summerville, 3 Penn. St. Rep., 533. * Noel V. Lord Henly, 7 Pri., 241; 2 Jarm. Pow. Dev., 708. TRUSTS FOR THE PAYMENT OF LEGACIES. 315 merit or release, or by a decree in a suit to which the legatees or their representatives are parties/ As the question whether the legacies are to be a charge on the land or not depends upon the mani- fest intention of the testator, either expressed or implied, that intention must be sought after in the instrument itself. There are certain expressions wdiich are deemed sufficient, when taken in con- nection with circumstances to indicate such inten- tion : as, where the testator gives several legacies, and, without creating an express trust for their pay- ment, makes a general residuary disposition of his whole estate, real and personal, blending them together in a common fund, the real estate, if neces- sary for their payment, will be charged.'^ So also, from the expressions of the testator, certain legacies may be deemed to be a charge upon the realty, and others not: as, w^ien the testator devises lands sub- ject to debts and all legacies thereafter mentioned, and then proceeds to give several legacies, directing that they be paid by the devisee.^ The court will look * Jenkins v. Fryer, 4 Paige, 47; Birdsall v. Hewlett, 1 Paige, 32; Dodge V. Manning, 11 Paige, 334; ib. 1 Corns., 298; Harris v. Fly, 7 Paige, 421; Livingston v. Freeland, 3 Barb. Ch., 510; Tracey v. Tracey, 15 Barb., 503; Eafferty v. Clark, 1 Bradf., 473; Terlume v. Colton, 2 Stockt., 21; Nillons I'. Truax, 6 Ohio (N. S.), 97; Clyde v. Simpson, 4 Ohio (N. S.), 445; Copp V. Ilersey, 11 Foster, 317. '^ Hill on Trustees, SCO, cites Aubrey v. Middleton, 2 Eq. Ca. Abr., 479; Hassel v. Hassel, 2 Dick., 526; Brudenell v. Boughton, 2 Atk., 268; Bench V. Biles, 4 Mad., 187; Cole v. Turner, 4 Russ.,376; Mirehousev. Scaife,2M. & Cr., 695, 707, etc; see Buckley v. Buckley, 11 Barb., 43; Tracy v. Tracy, 15 Barb., 503; Lupton v. Lupton, 2 John. Ch., 614; Lewis v. Darling, 16 How. U. S. 10; McGlaughlin's Ex'rs v. McGlaughlin's Adm'rs., 24 Penn. St. Rep., 22; Carter v. Balfour, 19 Alab., 815. ' See Home v. Medcraft, 1 Bro. C. C, 261; Radburn v. Jervis, 3 Beav., 450; Strong v. Ingram., 6 Sim., 197. 316 TRUSTS FOR THE PAYMENT OF LEGACIES. into the whole will, and determine, as far as pos- sible, the real intention of the testator: and these trusts will depend upon that intent, as in other cases ; for here, too, the intent guides the use. When it is found to be the intention of the testa- tor to charge the real estate with the payment of his legacies, and a lien attaches thereto, in case of deficiency, those legacies which are of the same order, abate ratably, unless a contrary intent is found in the will. It is competent for the testator to prefer the payment of those which the law deems to be of the same order, one above the other, and this preference may be gathered from the testator's expressions/ But courts are averse to construing circumstances so as to find that the testator intended to favor one of the same class above another. They very properly infer that the testator, had he intended any such favoritism, would have made that inten- tion manifest in some other way than by leaving it to inference.'^ It has already been observed that legacies are held to abate in a certain order, where there is a deficiency for the payment of all. But the testator can change this order if he thinks proper to do so. General or pecuniary legacies will abate before spe- cific, because, when the testator has given a sjoecific article to a particular individual, or a specific sum ' Murdock's Appl., 31 Penn. St. Rep., 47; Masters v. Masters, IP. Wm., 423; Wood r. Vandenburgh, 6 Paige, 277; Marsh v. Evans, IP. Wm., 668; Pepper v. Bloomfield, 3 Dr. & W., 499. * See on this point Heron v. Heron, 2 Atk., 171; Coppin v. Coppin, 2 P. Wm., 292; Hume i'. Edwards, 3 Atk., 693; Apreece v. Apreece, 1 Ves. & Bea., 364. TRUSTS FOR RAISING PORTIONS. 317 to be paid out of a specific fund or specified property, and has made no other disposition of the same, such intention will not be overruled by the court, unless there is an imperative necessity arising out of the will of the testator; or that which is of higher authority than his will, his legal and equitable obli- gations to be first just before he is generous. This subject will be more fully considered under the respective titles of trustees and cestui que trusts. TRUSTS FOR RAISING PORTIONS. This takes place where a term of years is carved out of an estate, and limited to trustees to secure the payment of certain sums of money to be paid to children at a future time ; such as on their arriving respectively at the age of twenty-one years, or on the happening of some contingent event, as on their marria2;e, etc. In such instances the sum or sums to be paid become a charge on the estate, and the land becomes a primary fund for their payment.^ It frequently happens that the event or the period fixing the time for the payment of these portions transpires before the determination of the particular estate, after which the remainder expectant, by which the portion is secured, is limited. Thus, in Jefferies v. Reynous,^ exchequer annuities were settled upon husband and wife for their lives, and, after their deaths, for the children of the marriage, 1 Lechmere v. Charlton, 15 Ves., 193; Lanoy v. Duke of A., 2 Atk., 444. '■' Stated 9 Ves., 311. 318 TRUSTS FOR RAISING PORTIONS. in equal shares, to be assigned and made over to them at their ages of twenty-one happening after the death of the surviving parent ; but if any one of them attain twenty-one during the lives of their parents, their shares were to be paid, assigned and made over within three months after the death of the survivor of the parents, unless sooner directed ; and if any of them die before their shares become payable, assignable or transferable, survivorship among the children was provided. It was further declared that if there should be no child, or, there being children, all of them die before their shares became payable, assignable or transferable, as afore- said, the annuities should go to the parents and the survivor of them. There was only one child a son, and he attained the age of twenty-one, but died before his mother, who survived her husband. The question arose whether the executor of the son or the executor of the mother should have the fund. It was held, first at the Rolls, afterwards by Lord Northington, C, and ultimately by the House of Lords, that the son's executor was entitled. The decision is upon the principle that the interest vested immediately on the son's arriving at the age of twenty-one, although the time of payment was postponed until the death of the parents.^ ' Jcflfei-ies v. Reynous, stated in 9 Ves., 311. Mr. Roper calls attention to the following authorities as illustrating this subject: Emperor v. Rolfe, 1 Ves. Sen., 208; Evans v. Scott, 11 Jur., 291; Randall v. Metcalf, 3 Bro. Par. Cas., 318, (8vo. ed.); Willis v. AVillis, 3 Ves., 51; Hope i). Lord Clifden, 6 Ves., 499; Schenck v. Legh, 9 Ves., 300; Powiss v. Burdett, ib. 428; Bayard v. Smith, 14 Ves., 470; Walker v. Maine, 1 Jac. & Walk., 1, 8; Howgrave v. Cartier, 3 Ves. & Bea., 79; Perfect v. Lord Curzon, 5 TRUSTS FOR RAISING PORTIONS. 319 The reason for this rule of interpretation is given by Mr. Roper^ in these words: "A child who has attained the age of twenty-one, or married, is prima facie to be considered entitled to a portion provided for children, upon the ground that an intention is not to be imj)uted to a father to leave his child, having occasion for a fortune, without one ; and, to form an exception to the rule, it must be shown, from the tenor of the words of the will or settle- ment, that the child was not meant to have the pro- vision at that age ; an intention that must not be doubtful, but clear.^ There must be something in the instrument utterly incompatible with giving the portion at twenty-one. If, then, the terms of the instrument be ambiguous, or if there be conflicting or contradictory clauses, so as to leave in a degree uncertain the period at, or the contingency upon which the portion is to vest or be divested, it is the inclination of the court to vest the money in sons at twenty-one, and daughters at that age or mar- riage.'^ Hence it follows that if the portion be given Madd., 442; Maitland v. Calie, 6 ib., 243; Bielefield v. Record, 2 Sim., 354; Bright v. Rowe, 3 Myl. & K., 316; Mocatto v. Lindo, 9 Sim , 56; Cort V. Winder, 1 Coll., 320; Whiting v. Force, 2 Beav. 571; Casamajor V. Strode, 8 Jur., 14; to which may be added Swallow v. Binns, 1 Kay & Johns., 417; S. C, 19 Jur., 483; Whatford v. Moore, 2 M. & Cr.,291; Woodcock V. Duke of Dorset, 3 Bro. C. C, 569; Kinge v. Hake, 9 Ves., 438; Jones v. Jones, 13 Sim., 568; see also Pinney v. Fancher, 3 Brad., 198; Parsons v. Lyman, 4 Brad., 208; Lctchworth's Appl., 30 Penn. St., R., 175; Everett v. Mount, 22 Geo., 323. ' Roper on Legacies, 626; Howgrave v. Cartier, 3 Ves. & Bea., 85, 91; Hope V. Lord Ciifden, 6 Ves., 507; Bernard v. Montague, 8 CI. & Fin., 74, ^ Bernard v. Montague, 8 Cl. & Fin., 74; Dominick v. Moore, 2 Brad., 201; Devane v.Larkins, 3 Jones' Eq.,377; High v. Worley, 32 Alab., 709. ^ Hargrave v. Cartier, 3 Ves. &:. Bea., 79; Bowman v. Long.,' 23 Georgia, 242; Cox v. McKinney, 32 Alab., 41G; High v. Worley, 32 Alab., 709. 320 TRUSTS FOR RAISING PORTIONS. over in language which is capable of being referred either to the death of children before twenty-one, or during the lives of their jDarents, the expressions will be restricted to the period of vesting ; that is, in the event of death under twenty-one : for a court of equity deems it very unreasonable to suppose a father to mean that his child, having attained twenty-one, or married and founded a family, should not take its portion because it happens to die before him/ But whether the portions are to be raised during the life time of the parents, and consequently, be- fore the termination of the particular estate, or whether not until the death of the parents, is a question which must depend uj)on the manifest in- tention of the settler or testator, as gathered from the instrument, without calling in aid any extra- neous matter.'^ While the court in construing the instrument will not be eager to lay hold of circum- stances, and will hold an equal mind, yet, unless compelled to the contrary conclusion, they will pre- sume it was intended that the child should take a vested interest in the portion, at the age of twenty- one, or at marriage ; and that the period of payment was only deferred until the determination of the preceding estate.^ But there may be expressions ' Roper on Leg., 626; Hope v. Lord Clifden, 6 Ves., 504, 507; Thomp- son V. Thompson, 28 Barb., 432; Duane v, Larkins, 3 Jones' Eq., 377; Petty V. Moore, 5 Sneed, 126; Moore v. Dimond, 5 R. I., 121; Brown v. Williams, ib., 309; ex parte Turk, 1 Brad. (N. Y.), 110; Dominick v. Moore, 2 Brad., 201. » Corbet v. Maydwell, 2 Vern., 641. ' Swallow V. Binns, 1 Kay & Johns., 417; Whatford v. Moore, 7 Sim., 674} S. C , M. & Cr., 274; Hotchkin v. Humfry, 2 Madd., 65; Fitzgerald TRUSTS FOR RAISING PORTIONS. 321 which will compel a different conclusion ; as, when the portions are to be raised from and after the com- mencement of the term •/ hence, not until the death of the parents, or the one for whose life the particu- lar term was limited. The questions raised upon this point, are usually between the representatives of the deceased child or children, and those of the parent ; and much liti- o-ation would be avoided if settlers and testators CI would be more careful to determine, at the time of framing the instrument, the time when the portion is to vest in the children, and not leave it to mere construction. It is to be observed that these portions to be raised are a charge on the lands by which they are secured; and, hence, they are usually raised by renting, mortgaging, or selling the term. The land is the primary fund, even in cases where the settler covenants in the settlement to pay the amount. Consequently, where there is no such covenant in the settlement, there is no debt created against the. settler which can be enforced against his personal estate."^ The mode of raising these portions, whether r. Field, 1 Russ., 430; Thompson v. Thompson, 28 Barb., 432; Braddon V. Cannon, 1 Grant's Ca., (Penn.,) 60; Devane v. Larkins, 3 Jones' Eq., 377; Freeman v. Okey, 3 Jones' Eq., 473; Hall v. Robinson, 3 Jones' Eq., 348; Bowman v. Long, 23 Geo., 242; Cox i'. McKinney, 82 Alab.,461; Thrasher D. Ingraham, 82 Alab., 645; High v. AVorley, 32 Alab., 709; Petty V. Moore, 5 Sneed, 126; ex parte Turk, 1 Bradf., 110. ' Butler V. Duncomb, 1 Pr. Wm., 448; Wynter v. Bold, 1 S. & St., 507. * Lanoy v. Duke of Athol, 2 Atk., 444; Lechmere v. Charlton, 15 Ves., 193; Edwards v. Freeman, 2 P. Wm., 437; Burgoyne v. Fox. 1 Atk., 576; Fox r. Phelps, 17 Wend., 393, also 20 Wend., 437; Robinson v. Towns- hend, 3 G. & J., 413; see also Hawley v. James, 5 Paige, 318. 21 322 TRUSTS FOR RAISING PORTIONS. by rent, mortgage or sale, will be more appropri- ately considered when the duties of trustees and the rights of cestuis que trust are being discussed. In New York there are statutes which modify somewhat the law on the subject of raising portions. It is provided-^ that every future estate shall be void in its creation, which shall suspend the absolute power of alienation for a longer period than is pre- scribed in the statute ; and the power of alienation will be deemed to be suspended, where there are no persons in being by whom an absolute fee in pos- session can be conveyed. By the 15th section, the period of suspension is fixed as not longer than the continuance of two lives in being at the time of the creation of the estate ; except that a contingent re- mainder in fee may be created on a prior remainder in fee, to take effect in the event that the person to whom the first remainder is limited, shall die under the age of twenty-one years; or upon any other contingency, by which the estate of such persons shall be determined before they arrive at the age of twenty-one, or full age. And it is further provided," that accumulation of rents and profits of real estate for the benefit of one or more persons, may be di- rected by any will or deed, sufficient to pass real estate, as follows : 1. If such accumulation be directed to commence on the creation of the estate, out of w^iich the rents and profits are to arise, it must be made for the ' 2 R. S., 184G. p. 10, sec. 14, 15, 16. ' Sec. 37, p. VI. 2 K. St., 184*5. TRUSTS FOR RAISING PORTIONS. 323 benefit of one or more minors then in being ; and to terminate at the expiration of their minority. 2. If such accumulation be directed to commence at any time subsequent to the creation of the estate, out of which the rents and profits are to arise, it shall commence within the time permitted in the statute, for the vesting of future estates, and during the minority of the persons for whose benefit it is directed, and shall terminate at the expiration of such minority. Where the accumulations are directed for a longer period than during the minority of the person in- tended to be benefitted, the excess of time is void ; and all other directions for accumulations other than those provided for are to be void. By observing these provisions of the statute, the decisions of the courts in New York, upon the subject of raising por- tions by accumulation and the creation of future estates, will be better understood. DIVISION II. OF TRUSTEES AND THEIR INCIDENTAL RIGHTS, POWERS AND LIABILITIES. CHAPTEK I. WHO MAY BE A TRUSTEE. Section I. THE LEGAL REQUISITES OF A TRUSTEE. Having considered the nature of trusts — the different kinds — and also the various methods by which they are created and raised, it is next proper to enquire : Who may be a trustee ? It may be stated, as a general j)rii^ciple, that all persons capable of taking the beneficial interest in property may become trustees for others.^ This rule, how- ever, does not necessarily include all who may become trustees under the operations of certain legal rules. It is a well established j)rinciple in equity that a trust shall not fail for want of a trustee. Hence, in cases of the death, disability or non-appointment of a trustee, the court will follow '2ronbl. Eq., 139, (n). 326 WHO MAY BE A TRUSTEE. the subject matter of the trust into the hands of the holder, and treat him as trustee, unless he is en- titled to the protection of the court as a bona fide purchaser, without notice.^ Hence, every class, character and profession of individuals are liable to become trustees for certain purposes and to certain extents. Not only may individuals of every class, character and profession become trustees, but cor- porations, and even unincorporated associations of individuals, may become trustees for certain pur- poses and objects.^ Section II. THE KIXG AS TRUSTEE IN ENGLAND— THE STATE IN THIS COUNTRY. In the case of Burgess v. Wheate,^ Sir Thomas Clark, Master of the Rolls, in making a distinction between trust estates vested in the crown by escheat, and those to which it becomes entitled by forfeiture, says: "The crown takes an estate by forfeiture subject to the engagements and incum- brances of the person forfeiting. The crown holds * King f. Donnelly, 5 Paige, 46; Dawson v. Dawson, Rice's Eq.. 243; Cushney v. Henry, 4 Paige, 345; Mclntyre School v. Zaue.sville C. and M. Co., 9 Ham., 203; Sand. Uses, 349; 2 Fonb. Eq., 142 (n) ; Story's Eq., sec. 976; Hill on Trustees, 48; 1 Madd.Ch.P., 580; De Burante v. Gott, 6 Barb., S. C, 492; 1 Sugd. V. and P., 171; Malin v. Malin, 1 Wend., 625; Kerr v. Day, 14 Penn. St., 114. ^ Green v. Rutherford, 1 Ves. Sr., 468; Att'y Gen. v. Landerfield, 9 Mod., 287; Trustees of Phillips's Acad. v. King, 12 Mass., 546; Pickerings. Shotwell, 10 Barr., 27; Magell v. Bromi, Bright N. P., 350; Mayor and Corp. Philadelphia v. Elliott, 3 Rawle Rep., 170; 2 Sandf. Ch. Rep., 138; Potter V. Chapin, 6 Paige Rep., 639, 649. ^ 1 Ed., 255; see Kildare v. Eustace. 1 Yern., 439; Wilkes' Case, Lan., 54. WHO MAY BE A TRUSTEE. 327 in this case as royal trustee." Lord Mansfield, in his judgment in the same case, sustained the same principle. Upon the question whether the king should be liable to an equity of redemption upon a le^'-al estate, Lord Hale thought he should; because it was an ancient right which the party is entitled to in equity.^ Lord Keeper Northington, in the case of Burgess v. Wheate, while he declined giving an opinion on the question of the crown's liability as trustee, remarked that although Lord Hale and Baron Atkyns thought the king should be liable, because they saw the same equity against the crown as against a common person, they only recognized the equity without declaring the remedy. Said the Lord Keeper: "Whether this remedy has since been settled in the Exchequer, where it alone can be, I really don't know; but I hope it is so settled, for I see a great deal of equity to support the opinion of Hale and Atkyns. I hope there is no equity the subject is not entitled to against the crown. But I own, upon very diligent inquiry and consideration of the case, I at present think the arms of equity are very short against the prerogative." ' Mr. Lewin remarks,^' " The sovereign may sustain the character of a trustee so far as regards capacity to take the estate, and to execute the trust; but great doubts have been entertained whether the ' Pawlett V. Att'y Gen., Heard., 467. "Pawlett V. Att'y Gen., ut supra; Reeve v. Att'y Gen., 2Atk.,223; Giles V. Grovey, C Bligh, N. S., 392; see also Prescott v. Tyler, 1 Jur., 470; Casbord v. Ward, 6 Price, 44; Penn v. Ld. Baltinaore, 1 Yes. Sr., 453. = Lewin on Trustees, etc., 30. 328 WHO MAY BE A TRUSTEE. subject can, by any legal process, enforce the per- formance of the trust. The right of the cestui que trust is sufficiently clear, but the defect lies in the remedy. The Court of Chancery has no jurisdiction over the king's conscience, for that is a power dele- gated by the king to the chancellor, to exercise the king's equitable authority betwixt subject and sub- ject. 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 channel, a cestui que trust might indirectly obtain the relief to which, on the general principles of equity, he is confessedly entitled." Since the crown is the fountain of equity as between subject and subject, the court ought not to suppose it capable of withholding equity from the subject. It is a maxim of the law that the king can do no wrong, not from lack of power, but from lack of disposition. Then why not add the other as a corollary, that the king can withhold no right ? But whatever may be the law on this subject in England, it is pretty well settled in this country that the state may be trustee. Says Chancellor Kent,^ " It is a general principle in American law, and which, I presume, is everywhere declared and asserted, that where the title to lands fails from de- fect of the heirs or devisees, it necessarily reverts or escheats to the people (state), as forming a part of the common stock to which the whole commu- nity is entitled. Thus, whenever the owner dies ' 4 Kent's Com., 424; see also note (a), 9th ed., and p. 427. WHO MAY BE A TRUSTEE. 329 intestate, without leaving any inheritable blood, or if the relations are aliens, there is a failure of com- petent heirs, and the land vests immediately in the state by operation of law :" ^ and it is a further rule of law, that the state, on taking lands by escheat, and even forfeiture, takes the title which the party had and no other. The land is taken in the plight and extent by which he held it ; and the estate of the remainder-man is not destroyed or divested by the forfeiture of the particular estate.^ In most of the states these matters have been regulated by statute, so that whatever doubts might have arisen under the common law, there remains none under the statutes defining the rights and duties of the par- ties.^ Thus by the Revised Statutes of New York ^ it is provided that all escheated lands, when held by the State or its grantees, shall be subject to the same trusts, incumbrances, &c., as they would have been had they descended ; and the Court of Chancery is empowered to direct the Attorney General to con- vey the lands to the parties equitably entitled, or to trustees.'' So also the Statute of Alabama^ pro- » People V. Conklin, 2 Hill R., 67. ^ Mooers v. White, 6 John. Ch., 360; Farmers' Loan and Trust Co. v. People, 1 Sandf Ch., 139; 4 Kent's Com., 427; Borland v. Dean, 4 Mason R., 174. 2 See McDonogh's Ex'ors v. Murdock, 15 How. U. S., 367; Rev. Stat. N. Y., part I., chap. 1, art. 1, sec. 2, 3d ed.; Movers v. White, 6 J. C. R., 300, 367; Virg. Code, 1849, tit. 32, chap. 113, sec. 26; Kentucky Act, 29 Sep., 1787, sec. 11. " Mooers v. White, 6 Johns. Ch. R., 365; Farmers' L. Co. v. People, 1 Sandf. Ch., 139. ' Clay's Dig., 189, sec. 1 and 9. 330 WHO MAY BE A TRUSTEE. vides that the estate, both real and personal, of persons within their State who have died intestate, or who may hereafter die intestate, leaving no law- ful heir or heirs, shall be considered as escheated to the State of Alabama :" ^ and it further provides that nothing herein contained shall prejudice the rights of creditors, or other individuals having claims or legal titles, or who shall be under the disabilities of infancy, coverture, duress, lunacy, or beyond the limits of the United States, until three years after the disability shall be removed/ In Pennsylvania, act 29 Sept., 1787, § 11,^ provides that in case of escheat, the state is to take no other or greater title than the person dying intestate had.*^ So also in Virginia, an estate vested in a person by way of mortgage or trust is not to escheat or be forfeited, merely by reason of his being an alien, or dying without heirs.^ Thus the spirit of the American law upon this subject is, that the state, taking lands by escheat or forfeiture, takes the title which the party had and no other ; consequently it is quite liable to hold in trust for those who have equitable estates in lands which are escheated or forfeited thereto. It is indeed difficult to conceive of any substantial reason why the subject or citizen should not be en- titled to all his equitable rights against the state or the crown. The very existence of government is for the purpose of securing to all the peaceful pos- ' See preceding note. ' Dunlop, 163, 3d ed. ' Code, 1849, tit. 32, ch. 118, sec. 26. WHO MAT BE A TRUSTEE. 331 session and enjoyment of their rights. Therefore the supposition that the government, which is the fountain of justice to the subject, can withhold from him his equitable rights, is legally impossible ; and well might Lord Keeper Northington say, " that he hoped there was no equity, that the subject is not entitled to against the crown >5 1 Section III. CORPORATIONS AS TRUSTEES. Of corporations there are several kinds, and they are primarily divided into aggregate and sole cor- porations. A sole corporation consists of a single person, who is made a body corporate and politic for the purpose of endowing him with legal capaci- ties which a natural person does not possess, such as perpetuity, etc. In England, a bishop, a dean, a vicar, etc., are examples of sole corporations ; and they and their successors in office, take the corpo- rate property and privileges in 'perpetuity for the benefit of the office, etc. Hence, in this character and relation they become trustees.'^ But sole corpo- rations are not favored in the United States ; and, with us, corporations generally in use are aggregate, formed by the union of two or more individuals in one body politic, with a capacity of succession and perpetuity.^ In New York, by special enactment,"* it is pro- ' Burges v. Wheat., 1 Ed. 225. ^Per. Story, Jr., 4 Wheat., 667; Brunswick v. Dunning, 7 Mass., 447; Weston V. Hunt, 2 Mass., 501; Jansen v. Ostrander, 1 Cow., 670, 684. ^2 Kent. Com., 273; McGirr v. Aaron, 1 Penn. Rep., 51. * 1855 Session Laws, chap. 230, p. 338, passed April 9, 1855. 332 WHO MAY BE A TRUSTEE. vided that no interest in property shall be convey- able or descendable to the successor of ecclesiastics ; and that none but legal corporations shall be capable of thus taking. It is also provided that no grant, conveyance, devise or lease of lands consecrated, dedicated or appropriated or intended to be for pur- poses of religious worship, for the use of the congre- gation or society shall vest any title in the person to whom the grant shall be made, unless made to a corporation organized under the law for incorpora- ting such societies, etc. It further provides, that all such property so held, shall, on the death of the person to whom it has been conveyed, descend to and be held in trust for, such congregation or society, if there be any legally entitled to take : if not, shall escheat to the people ; and the commissioners of the land office may convey to such congregation when, by being incorporated, they become capable of taking. The object of the institution of aggregate corpo- rations is to enable many individuals to act as one, by one united will ; and to continue their joint powers and franchises, undisturbed by the change of members. These artificial persons are the crea- tures of law, and usually are created for particular purposes, and are confined in their action within the scope of those purposes. Such corporations may become trustees, especially within the scope of the purposes for which they were instituted.^ They 'Trustees of Phillips's Academy r. King, 12 Mass., 546; Vidal v. Girard, 2 How. U. S., 187; Columbia Bridge Company v. Kline, Bright. N. P., 320; Green v. Rutherford, 1 Ves. Sen., 468. WHO MAT BE A TRUSTEE. 333 may be constituted trustees to the same extent as private individuals, upon the same principle. A private individual is incapable of holding as trustee, any property, the legal estate in which, he cannot acquire and hold. So, a corporation cannot hold as trustee of real estate, unless, under its constitution, or by legal permission, it may acquire and hold the legal estate therein.^ But where lands are devised to a corporation which is not legally capable of tak- ing and holding real estate, in trust, for lawful pur- poses, although at law the trust is void, in equity, under the rule that a trust shall not fail for want of a trustee, the trust will be maintained, and the heir will be decreed to be a trustee for the uses of the will.^ This doctrine has been somewhat questioned. It is held in the case of Jackson v. Hartwell,^ that a corporation cannot be seised of lands in trust for purposes foreign to its institution. It was also dis- cussed at considerable length in the case of The Trustees of Phillips's Academy v. King,* by Justice Thatcher. It was also held in the case of The First Parish in Sutton v. Cole,^ that corporations created for specific objects, have no power to take ' Att'y Gen. v. Ironmongers' Co., 2 Beav., 313; 2 Fonbl. Eq., 139, note; Jackson v. Hartwell, 8 J. Rep., 422; 3 Rev. Stat. N. Y., 292, § 4; Wil- lard's Eq., 734; Nicoll. v. N. Y. & E. R. R. Co., 12 Barb. 460; aff'd, 2 Kern., 121. ^Powlej-t). Clockmakers'Co., 1 Bro. C.C, 81; Vidal v. Girard, 2 How.. U. S., 187; but see Andrew v. B. Society, 4 Sand. S. C, 156; Ayers v Methodist Ch., 3 Sandf. S. C, 352. '8 Johns., 422. ■* 12 Mass., 546; see Andrew v. B. Society, ut supra; Ayers v. Methodist Ch., ut supra. *3 Pick., 232. 334 WHO MAY BE A TRUSTEE. and hold real estate for purposes foreign to those objects. As a general rule, a corporation has no power except what is given by its charter or incor- j)orating act, either expressly or as incidental to its existence ; consequently, whether a particular cor- poration can be constituted a trustee for any specific purpose or use, must be determined by an examina- tion of its charter or incorporating act.^ Mr. Justice Story in delivering the opinion of the SujDreme Court of the United States in the case of Vidal et al. v. The Mayor, &c., of Philadelphia, said, " there is no positive objection, in point of law, to a corporation taking property upon trust not strictly within the scope of the direct purposes of its insti- tution, but collateral to them, nay, for the benefit of a stranger or another corporation." ^ In the case of the Trustees of Phillips's Academy v. King,^ Mr. Justice Thatcher expressed his surprise that the question whether corporations are capable of taking and holding property as trustees, should be one of general inquiry, since these bodies are the mere creatures of the legislature, which can invest them with powers more or less enlarged, according to its own good pleasure. In Matter of Howe ^ the Chan- cellor remarked : "It is a general rule that corpora- tions cannot exercise any powers not given to them ' See Head v. Providence Insurance Company, 2 Cranch, 127; Dart- mouth College V. Woodward, 4 Wheat., 636; State ij. Stebbins, 1 Stew., 299; Bcaty v. Knowler, 4 Pet., 152; Beaty v. Marine In, Co., 2 Johns., 109; People v. Utica Ins. Co., 15 Johns., 358, 2 Cowen, 675. " 2 How. U. S. R., 128. =■ 12 Mass., 546. * 1 Paige Ch. R., 214; but see Jackson v. Hartwell, 8 Johns., 422. WHO MAY BE A TRUSTEE. 335 by their charters, or acts of incorporation, and for that reason they cannot act as trustees in relation to any matters in which the corporation has no inter- est. But wherever property is devised or granted to a corporation partly for its own use, and partly for the use of others, the power of the corporation to take and hold the property for its own use carries with it, as a necessary incident, the power to exe- cute that part of the trust which relates to others." ^ If the trust be repugnant to, or inconsistent with the proper purposes for which the corporation was created, it furnishes a ground why the corporation may not be compelable to execute the trust ; but it will furnish no ground for declaring the trust void if otherwise unexceptionable. It will simj)ly re- quire a new trustee to be substituted by the proper court possessing equity jurisdiction to enforce and perfect the objects of the trust." Towns, counties, hundreds, etc., are quasi corpo- rations, and as such are capable of becoming trus- tees.^ So likewise overseers of the poor, supervisors of a county, etc., are invested with corporate powers suh mo do, for certain specific purposes, and can be- come trustees within the sphere of their official duties."* These quasi corporations are numerous and varied: as the Commissioners of Roads in South ^ See preceding note. ' Vidal et al. v. Mayor, &c., ut supra; Angel 8t Ames on Corp., 124- 130; 1 Kyd on Corp., 72. ^ Mayor of Philadelphia v. Elliot, 3 Rawle, 171; Vidal et al. v. Girard's Ex'rs, 2 How. U. S., 127. ■* jSiorth Hempsted v. Hempsted, 2 Wend., 109; Jansen v. Ostrander, 1 Cow. K., G70. 336 TTHO MAY BE A TRUSTEE. Carolina ;^ Trustees of the Poor in Mississippi ; also, Trustees of the School Fund.^ These offices depend not, for their existence, upon those who hold official positions, but continue from one officer to his suc- cessor in office. Hence, a debt due to the office, contracted during the administration of the prede- cessor, in his official character, may be sued for and collected by the successor ; and where a debt is con- tracted in an official capacity, the debt is against the office ; and hence, where officers contract debts in their official character and go out of office, the action must be against their successors.^ These quasi corporations, which are such for certain special purposes, are held to be incapable of taking and holding lands, as trustees, for purposes foreign to their existence. Thus, in New York, the supervi- sors of a county are held to be a corporation for certain special purposes, and therefore incapable of taking and holding lands as trustees for the use of an individual or of the inhabitants of a village, or indeed for any use or purpose other than that of the county which they represent.^ ' Com. Roads v. McPherson, 1 Spen. R., 218. ^ Gov. V. Gridley, Walker R., 328; Canuichal v. Trustees, &c., 3 How. (Miss.) R., 84. ^ Jackson v. Hartwell, 8 Johns. R., 422; Chapin v. Scliool District, 3 X. H., 445; Matter of Howe, 1 Paige, 214; Tuclier v. St. Clement's cluirch, 4 Seld., 558; Williams ». Williams, 4 Seld. 525; American Colonization Society v. Gartrell, 23 Georgia, 448. WHO MAY BE A TRUSTEE. 337 Section IV. VOLUNTARY ASSOCIATIONS OR UNINCOR- PORATED COMPANIES AS TRUSTEES. In Pennsylvania, in the case of Magill v. Brown (Zane's case),^ the court remarked that the spirit of all the constitutions in the states was in favor of protecting the rights of religious, literary and chari- table societies ; and that all bodies united for such purposes were corporations by prescription. It was also held, in the same case, that bequests to unin- corporated societies of such character were good. The same doctrine was held in the case of Zimmer- man V. Anders.^ In the case of Beaver v. Tilson,^ the court remarked that religious and charitable institutions had always been favored, without respect to form, and that it was immaterial in case of a will how vague and uncertain the objects of the charity might be, provided there w^as a discretionary power vested somewhere over the application of the testa- tor's bounty to those objects.^ In the case of Pick- ering V. Shotwell,* the testator, Sheppard, gave cer- tain legacies to his children, payable at twenty-one, and the income of his whole estate to the niainte- 1 Bright's Rep., 350; Am. Bible So. y. Wetmore, 17 Conn., 181; Picker- ing V. Shotwell, 10 Barr., 27. ^ 6 S. & W., 220; Tucker v. Seaman's Aid Society, 7 Met., 188; Horn- beck's Ex'ns. V. American B. So., 2 Sandf. Ch. R., 133; Banks v. Phelan, 4 Barb., 80. ' 8 Barr, 327; Ex'rs of Barr & Smith, 7 Verm., 211. * 10 Barr., 23; see Beaty v. Kurtz, 2 Peters, 582; Town of Pawlct v. Clark, 9 Cranch, 292 &. 331; Inglis v. Trustees of Sailor's Snug Harbor, 3 Peters, 99; Terret v. Taylor, 9 Cranch, 43, 53; see 9 Cranch, 329; 2 Pet., 580. 22 338 WHO MAT BE A TRUSTEE. nance of his wife and children until they should receive their legacies — remainder to his wife for life, " and from and immediately after her decease, all the said residue of my estate shall go to and be applied under the direction of the monthly meeting of Friends of Philadelphia for the northern district, as a fund for the distribution of good books among poor people in the back part of Pennsylvania ; or to the support of an institution or free school in or near Philadelphia." It was claimed that the devise was void, both for uncertainty as to trustees and as to objects. That where the objects were uncertain, it was essential that trustees should be appointed who could take the legal estate and manage the charity; and that in this case the trustees were an unincorporated body, incapable of succession. That although the meeting might possibly take for its own benefit, yet it could not be trustee for others, etc. Gibson, chief justice, held that the objection was not well taken. That the essential provisions of the statute of charitable uses were a part of the common law of Pennsylvania; and that the objec- tion to the uncertainty of trustees would not be good in England, as a bequest to an executor not nomi- nated, or to one nominated but who died before the testator, would be executed in equity, where the object is a charitable one ; therefore, an equal un- certainty as to trustees would not vitiate in the like case in Pennsylvania. That before their statute of self-incorporation, bequests to unincorporated reli- gious congregations, or to literary or charitable associations, were frequent; and, indeed, there had WHO MAY BE A TRUSTEE. 339 been not a few since — yet they had all been sup- ported without assistance from the specific powers of a court of chancery. In the case of Magill v. Brown/ this subject was fully considered, and the decisions of the United States Supreme Court thor- oughly examined, and the judgment of the court was, that unincorporated religious societies, like the yearly and monthly meetings of Friends, could take under bequests both of real and personal estate. It has been objected that an unincorporated association cannot take as trustee, because it is incapable of succession. This objection is not valid ; because it is not essential to the character of a trustee that he shall be able to serve forever. In all cases of chari- ties the court have the power to substitute a trustee whenever that becomes necessary.'^ Upon an exami- nation of the principles involved, the authorities cited, and the general rules applicable to the consti- tution of trustees, there appears to be no valid reasons why unincorporated societies for religious and charitable purposes may not hold as trustees for such purposes, either for their own benefit or for the benefit of others.^ * See at large Magill v. Brown, Zane's case, Brightly, 350; see Potter v. Chapin, 6 Paige, 639; Dutch Church v. Mott, 7 Paige, 77; Zimmerman v. Anders, 6 Watts & Serg., 218; Am. B. Society v. Wetmore, 17 Conn., 181; see Voorhees v. Presb. Ch. of Amsterdam, 8 Barb., 135; Banks v. Phelan, 4 Barb., 80; Wright v. Trustees of M. E. Church, Hoff., 202; Shotwell V. Mott, 2 Sandf. Ch., 46; Newcorab v. St. Peters' Church, 2 Sandf. Ch., 636; Andrew v. N. Y. B. & P. B. Society, 4 Seld., 559; but see Owens v. M. So. of M. E. Ch., 4 Kern., 380; Coggshall v. Trustees of New Rochelle, 7 John. Ch. Rep., 292. "" Vidal V. Girard, 2 How. U. S., 127. ' But see the reasoning of Selden, J., in the case of Owens v. The Mis- Bionary Society of the Methodist Episcopal Church, 14 N. Y. Rep., 380. 340 WHO MAY BE A TRUSTEE. Section V. ALIENS AS TRUSTEES. As the general rule of law is that any person may become a trustee who is capable of taking and hold- ing the legal estate of that which is the subject of the trust, aliens may become trustees to the extent of such capacity. The subject of alienage in the United States is a national subject, and is determined by national au- thority. The rule adopted for determining whether a person is an alien or a subject by birth, is the rule of the common law. All persons born within the jurisdiction and allegiance of the United States are natives, except the children of ambassadors who are, in theory, born within the allegiance of the foreign power they represent.^ As the United States, as an independent government, had no existence until 1776, no one could owe it allegiance prior to that time : therefore those who had left the country prior to the revolution, without intending to return to it, did not become members of the new government, and therefore were aliens. Bat while the subject of alienage is national, the rights of aliens to take and hold property are determined by the laws of the several states where they reside, or where the pro- perty is situated.'^ An alien cannot acquire a title to real estate by descent, or in any other way created by mere operation of law, because the law, qucE nihil frustra, never casts the freehold upon one > 2 Kent's Com., 1; Lynch v. Clark, 1 Sandf. Ch. R., 584, 639. " Lynch v. Clark, 1 Sandf. Ch. R., 583. WHO MAY BE A TRUSTEE. ^^^ who cannot keep it.^ Upon the same principle an alien cannot take by dower or curtesy, because these are estates created by act of law.^ And as an alien has no inheritable blood, a natural born sub- ject cannot take by representation from an alien through whom the title must come. Thus, if a per- son die intestate without issue, and leave a brother wdio had been naturalized, and a nephew who had been naturalized but whose father died an alien, the bother succeeds to the whole estate, for the nephew is not permitted by the common law to trace his descent through his alien father.^ If an alien pur- chase land, or if land be devised to him, the general rule is, that in these cases he may take and hold un- til an inquest of office has been had ; but upon his death the land Avould instantly, and of necessity, without any inquest of office, escheat and vest in the state, because he is incompetent to transmit by hereditary descent.* In most of the states the capacity of aliens to take and hold real estate is de- termined by particular enactments. Thus, in North Carolina, an alien may take by purchase, but he * Jackson v. Limn, 3 Jolms. Ch. Cas., 109; Hunt v. Warnick, Hard. Ken. R., 61. * 2 Kent's Com., 16. ^ Levy V. McCartie, 6 Peters' TJ. S. R., 102; Jackson v. Green, 7 Wend., 333; Jackson v. Fitzsimmons, 10 Wend., 1; Redpath v. Rich, 3 Sandf., 79. * 2 Kent's Com., 54, and Page's case, 5 Co., 52; Collingwood v. Pace, 1 Sid. Rep., 193; 1 Lev. Rep., 59; Jackson v. Lunn, 3 John. Cas., 109; Fox V. Southack, 12 Mass., 143; Fairfax v. Hunter. 7 Cranch, 603, 619, 620; Orr V. Hodgson, 4 Wheat., 453; Governeur v. Robertson, 11 Wheat., 332; Vaux v. Nesbet, 1 McCord's S. C. Ch. Rep., 352, 374; 2 Dana's Kent. Rep., 40; Rouche v. Williamson, 3 Ired. N. C. R., 146. 342 WHO MAT BE A TRUSTEE. cannot bj devise/ So likewise in New York.- In Louisiana he can inherit real estate and transmit it ab intestate.^ In England it was formerly held that if an alien arrive there, and have two sons born there, and if one of them purchase land and die without issue, his brother cannot inherit as heir, because he must deduce his title by descent through his alien father who has no inheritable blood."* But in Collingwood v. Pace,^ it was held by a majority of the court, that the sons of an alien could inherit to each other through an alien father.^ But still it was admitted that a grandson cannot inherit to his grandfather, though both were natural born subjects, provided the intermediate son was an alien. For the grandson must, in that case, represent his father who had no inheritable blood to be represented: while in the case of a brother inheriting to the other, the descent is immediate, and they do not take by representation from the father. These, says Chancellor Kent, are very subtle distinctions, and the reason is not readily perceived.^ These subtleties and over nice distinctions called for spe- cial enactments ; accordingly the statute of 11 and 12 William III, chapter 6, was made for the pur- pose of " enabling natural born subjects to inherit the estate of their ancestors, either lineal or colla- teral, notwithstanding their father or mother, or *2Hay. Rep., 37, 104, 108. » N. Y. Rev. Stat., vol. 2, p. 57, sec. 4. ' Duke of Richmond v. Miln, 17 Louis, 312. * Coke Litt., 8, note (a). * 1 Sid. Rep., 193. * 2 Kent's Com., 55. WHO MAY BE A TRUSTEE. 143 ancestor, by, from, through, or under whom they might take or derive title, were aliens." ^ Several of the states have enacted similar sta- tutes: as Maryland, Kentucky, Ohio, Missouri, Dela- ware, New Jersey, New York and Massachusetts.^ So likewise in Virginia, by statute, the course of descent is not interrupted by the alienage of any lineal or collateral ancestor -^ so also in North Caro- lina.* But in those states where there are no sta- tutory provisions to the contrary, the rule of the common law will prevail ; though, says Chancellor Kent,^ the enlarged policy of the present day would naturally lead us to a benignant interpretation of the laws of descent, in favor of natural born citizens who were obliged to deduce a title to land from a pure and legitimate source, through an alien an- cestor.^ It has already been stated that an alien may pur- chase land or take it by devise, where there is no statute to the contrary, but he is exposed to the danger of being divested of the fee, and of having his lands forfeited to the state, upon an inquest of ojffice found. But his title will be good against every person except the state. At death, having no inheritable blood, his lands escheat to the state without inquest of office. If he sell his estate to a ' 2 Kent's Com., 5-5; McCreary v. Somerville, 9 Wheat., 354; People v. Irviii, 21 Wend., 128. "^ 2 Kent's Com., 56; N. Y. Rev. Stat., vol. 1, 754, sec. 22; N. J. Rev. Stat., 1847, p. 341; 9 Wheat., 354; 2 Mass. R., 179, note; State Law Ohio, 1831; Elmer N. J. Dig., 131; Rev. Stat. Mo., 1835. ^ Jackson v. Sanders, 2 Leigh R., 109. ♦N. C. Rev. St., 1837. '2 Com., 56. 344 WHO MAY BE A TRUSTEE. citizen, the prerogative right of forfeiture is not barred, but the purchaser takes it subject to the right of the government/ In some of the states this prerogative right of seizing lands sold, bona fide, to citizens is abolished by statute.^ As the trustee is one in whom the legal title is vested, it follows that aliens are under the like dis- abilities as to uses and trusts arising out of real estate. An alien can be seised to the use of another to the same extent that he can be seised of the legal estate in the lands, and no further. Therefore, a use cannot be executed as against the state, and will be defeated on office found. ^ This is the rule under the common law, and will be applicable where there are no statutory provisions to the contrary.* As aliens are capable of acquiring, holding and transmitting movable property in like manner as citizens, they can become trustees of jDcrsonal pro- perty to the same extent.^ An alien creditor may take a mortgage upon real estate by way of security for a debt, and, according to the decision of the Supreme Court of the United States in the case of Hughs V. Edwards,^ may come into a court of * 2 Kent's Com., 61; see Jackson v. Etz, 5 Cow., 314. ^ Griffith Law Register, tit. Virginia. ' Gilbert on Uses, by Sug., 10, 367, 445. * As to the powers of aliens to hold real estate in New York, see 3d vol. Rev. Stat., 1859, pages 5, 6, 7 and 8; Bradstreet v. Supervisors of Oneida, 13 Wend., 546; Ellice v. Win, 12 Wend., 342; Jackson v. Fitz- simmons, 10 Wend., 9; Jackson v. Smith, 7 Wend., 367; Jackson ex demise The People v. Etz, 5 Cowen, 314. As to the rule applied, see Jack- son ex demise Gansevoort v. Lunn, 3 J. C, 109, and Orser v. Hoag, 3 Hill, 79, and People v. Conklin, 2 Hill, 67. ^ 7 Co , 17; Dyer's Rep., 2 b. * 9 Wheat., 489. WHO MAY BE A TRUSTEE. 345 equity to have the mortgage foreclosed and the lands sold for the payment of the debt/ An alien enemy, resident in the country, is entitled to the same i^rotection, in person and property, as in time of peace; and this right to protection is implied from being permitted to remain in the country.^ So also if he is brought into the country as a pri- soner of war, or is ordered to depart out of the country.^ Neither does an alien enemy in time of war lose his capacity other than an alien friend, unless by some special action of the government.^ So, likewise, an alien may hold as trustee of a cor- poration ; and the rights of a corporation in its real estate are not affected by the alienage of its trustee/ An alien may hold as executor/ Naturalization has a retroactive effect, so as to be deemed a waiver of all liability to forfeiture/ The general principle is this : The lawful residence of an alien, jpro hac vice, relieves him from the character of an enemy, and entitles his person and property to protection/ During the residence of aliens with us, they owe a local allegiance, and are equally bound, with all natives, to obey all general laws for the mainte- nance of peace and the preservation of order, and which do not relate specially to our own citizens/ ' See preceding note. ^ 2 Kent's Com., 63; Clark v. Morey, 10 Johns., 69. « Bradwell v. Weeks, 1 Johns. Ch. R., 208. * Cammeyer v. The United Germ. Lutheran Church, 2 Sandf. Ch., 186. ^ Brook V. Phillips, Cro. Eliz., 684. ' Jackson v. Beach, 1 Johns. Ch., 402. ' 2 Kent's Com., 63; Wells v. Williams, 1 Lord Ray., 282; Clarke. Morey, 10 Johns. Rep., 69. * 2 Kent's Com., 64. 346 WHO MAT BE A TRUSTEE. Section VI. BANKRUPTS AND INSOLVENTS AS TRUSTEES. It is well settled that trust property vested in a bankrupt does not pass to his assignee ;^ because the trustee holds only for the benefit of the cestui que trust, and the legal estate, therefore, should be sub- ject to no incumbrances by the trustee for others than the beneficiary.^ The legal estate in trust property, therefore, vested in the bankrupt or in- solvent previously to bankruptcy or insolvency, remains unaffected until divested by legal transfer ; and, therefore, such persons have not incurred any legal incapacity to prevent them from taking pro- perty, of any description, conveyed to them subse- quently as trustees, and may hold as such, notwith- standing their bankruptcy or insolvency.^ Upon the same j)rinciple, the liens of judgments against trustees will not attach to the trust estate. Neither are these estates liable, as against the trustees, for dower, curtesy, etc.'~ Section VII. IDIOTS AND LUNATICS AS TRUSTEES. As the legal estate can vest in idiots and lunatics, both by descent and purchase, they can come into ' Carpenter v. Marnell, 3 B. & P., 40; 1 Cruise Dig., tit. 12, chap. 4, § 1 ; Copeman v. Gullant, 1 P. Wm., 314; Gardner v. Rowe, 2 Sim. & Stu., 346; Lounsbury v. Purdy, 11 Barb. S. C. R., 490; Ludwig v. Highley, 5 Barr., 132; Welhelm v. Folmer, 6 Barr., 296; Kip v. B'k of N. Y., 10 Johns., 63; Blln v. Pierce, 20 Verm., 25; Ontario Bank v. Mumford, 2 Barb. Ch., 596. " Hill on Trustees, p. 51, and authorities cited. WHO MAT BE A TRUSTEE. 347 the legal relation of trustees to cestui que trusts : but owing to mental incapacity, they cannot act ; for they are incapable of giving a valid assent so as to bind themselves or their cestuis que trust} Whenever a lunatic trustee is found in that relation, and action is required, he must act by committee, or under the direction of the court ; and, if need be, the court will remove him and appoint a new trustee. Section VIII. FEME COVERTS AS TRUSTEES. The administration of a trust may properly be committed to any person who is capable of taking the legal title of the trust property, and has the capacity to exercise the necessary discretion in dis- charging the duties of the ofhce of trustee. Thus, a feme covert, where her own interests or the inte- rests of her husband are not concerned, has as much legal capacity as though she were perfectly sui juris. ^ For her discretion after marriage is no less than be- fore ; and Sir John Trevor thought she might prob- ably improve by the instruction of her husband.^ Therefore, a married woman may be appointed trustee, where her own or her husband's interests are not concerned; although it is not usual, nor is it advisable to appoint her to such an office. ' Loorais V. Spencer, 2 Paige, 153; Swartwout v. Burr, 1 Barb., 495; Person v. Warren, 14 Barb, 488. * Co. Lit. 112, note (a), also 187. * Bell V. Hyde, Pr. Ch., 330; Lake v. De Lambert, 4 Vcs., 595; Comp- ton V. Collinson, 2 Bro. C C, 387; Hearle v. Greenbank, 1 Ves., 305; L'd Antrim v. Duke of Buckingham, 2 Freem., 168; Godolphin v. Godolphin, 1 Ves., 23. 348 WHO MAT BE A TRUSTEE. Section IX. INFANTS AS TRUSTEES. The legal objection to infants as trustees arises from their presumed lack of discretion. Owing to this want of judgment, the law will not permit them to bind themselves by their own contracts, except in certain necessary cases, for necessaries, etc. Courts are exceeding jealous of the rights of infants, and are not disposed to extend the presumption of their legal capacity to bind themselves or charge their estates. It is obvious that infants are not persons well adapted to fill the office of trustees.^ The incon- venience of such an appointment for the execution of the office of trustee is such, that the court will not infer such an intention unless it is unequivocally expressed. In the case of Binion v. Stone,^ Sir George Binion bought a house for i:2,000, in the name of his son, then five years of age. Sir George's estate being ordered to be sold for delinquency, the trustees for the sale sold it to Stone, to whom for je500, Sir George's son and wife conveyed, making oath they were not seised in trust for Sir George. Sir George sought relief against Stone as for a trust, when the estate was sold as that of Sir George's, and that the son was but five years old at the purchase. The court presumed it a trust, for which Sir George was ^ Blinkhorn v. Feast, 2 Ves. Sen., 27. * 2 Freem. R., 169. WHO MAT BE A TRUSTEE. ^^^ relievable. Here the trust was presumed because of the tender age of the child/ In the case of Lamplugh v. Lamplugh," where the father had purchased an estate in the name of his younger son, it was presumed to be an advancement, rather than make an infant a trustee. But this argument, ah inconvenienti, is never used unless the terms of conveyance, devise or bequest to an infant are so ambiguous as to leave it in doubt upon the face of the instrument whether they were intended to take as trustees or not. If such an appointment is actually made, the parties cannot, upon the strength of its singularity and its inconvenience or their own incompetence to act as trustees, set up a claim to the beneficial interest.^ > See note to Lake v. De Lambert, 4 Ves., 595. M P Wm 112; see Matter of Windle, 2Edw., 585. ^ King V. Denison, 1 V. & B., 275; Jevon v. Bush, 1 Vcrn., 343; note to Lake v. De Lambert, 4 Ves., 596. see 350 TRUSTEES CONSTITUTED BY CHAPTER II. HOW TRUSTEES MAY BE CONSTITUTED. Section I. BY AN EXPRESS APPOINTMENT OF THE PARTY CREATING THE TRUST. Trustees may be constituted by an express appoint- ment to that office by the deed or will of the party creating the trust ;^ or under a power contained in such instrument f or by a court of chancery or other court authorized by statute to exercise such power f or by an act of the legislature ;* or by implication or construction of law.^ Any instrument in writing sufficient to pass the legal title to property is competent to create a trust * See Hill on Trustees, 62; Bacon's Uses, 355; Cruise Dig., tit. 12, chap. 1, sec. 4, etc.; 2 Bla. Com., 336. ^ Bayley v. Mansell, 4 Madd., 226; 2 Sug. Pow., 533; Holder v. Durbin, 11 Beav., 594; Bowles v. Wicks, 14 Sim., 591; Oglander v. Oglander, 2 De G. & Sm., 381; Wilson v. Towle, 36 N. H., 129; see Cruger v. Halli- day, 11 Paige, 314; Wright v. Delafield, 23 Barb., 498. ' /;i re Cooper's Settlement, 39 Eng. L. & E. Rep., 103; Bowditch v. Banuelos, 1 Gray, 220; Bliss v. Bradford, ib., 407; Mitchell v. Pitney, 15 Geo., 319; Franklin v. Hayes, 2 Swan, (Ten.), 521; Montpelier v. East Montpelier, 29 Vt., 12; Leggett v. Hunter, 25 Barb., 81; Wilson v. Towle, 86 N. H., 129; Leggett v. Hunter, 19 N. Y., 445; People v. Norton, 5 Seld., 176. * The State v. Trustees of Vincennes University, 5 Ind., 77. ^ Hauff V. Howard, 3 Jones' Eq., 440; Martin v. Bank, 31 Ala., 115 Smith V. Strahan, 16 Texas, 314; People v. Houghtaling, 7 Cal., 348 Northcraft v. Martin, 28 Miss., 469; Fisher v. Fields, 10 Johns., 495 Howell V. Baker, 4 John. Ch., 118; Conger v. Ring, 11 Barb., 356. AN EXPRESS APPOINTMENT. 351 and constitute a trustee. Consequently where an instrument operates as a valid disposition of pro- perty and contains a direction or declaration that the party taking under it shall hold for the benefit of another, such direction or declaration charges the conscience of the donee, and he takes the legal estate in trust for the beneficial owner. It is not necessary that the direction or declaration of the trust should be contained in the same instrument which vests the legal estate in the trustee.^ But where there is an absolute conveyance by deed or other act, inter vivos, the instrument creating the trust must be made in contemplation of, or con- temporaneously with, the conveyance.^ For after the grantor has once divested himself of the legal title without making any declaration of trust, the grantee takes the beneficial, as well as the legal in- terest, and the power of the grantor to charge the pro]3erty is at an end.^ By the statute 29, Car. 2, usually denominated the Statute of Frauds, it was enacted, " that all declarations or creation of trusts or confidences of any lands, tenements, or heredita- ments, shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else shall be void;" and the substance of these * Addington v. Cann, 3 Atk., 145, 151; Inchiquin v- French, 1 Cox, 1; Wood V. Cox, 2M. & Cr., G84; Johnson v. Clark, 3 Rich. Eq., 305; Smith V. Attersol, 1 Russ., 266. "" Crabb v. Crabb, 1 M. & K., 511; Kilpin v. Kilpin, 1 M. 8c K., 520, 532. 'Addington v. Cann, 3 Atk., 152; Johnson v. Clarkson, 3 Rich. Eq., 305; Russel v. Jackson, 10 Hare, 204. 352 TRUSTEES CONSTITUTED BY provisions have been re-enacted in nearly all the States of the Union/ It should be observed that a distinction is to be made as to the requisites of the instrument necessary to pass the legal title to real estate, and that which fixes a trust upon it. Any instrument in writing, signed by the proper party at the proper time, will be sufficient to declare and fix the trust, and appoint the trustee, while there * See note 2 in Hill on Trustees, p. 56. These sections have been re- enacted in words or in substance in nearly all the United States. Revised Statutes of Vermont, (1839,) chap. 66, sec. 22; Revised Statutes of Mas- sachusetts, (1836,) chap. 59, sec 30; Dean v. Dean, 6 Conn., 285; Revised Statutes of New Jersey, tit. 17, chap. 1, sec. 11; Pennsylvania, Act of 1856, Bright, Purd. Supp., 1174; Dorsey d. Clark, 4 H. & J., 557; McCub- bin V. Cromwell, 7 G. & J., 157; 1 Dorsey's Laws, 57; 2 Cooper's Stat., S. Car., 401, 525; 2 Cobb's Geo. Dig., 1128; Elliott v. Armstrong, 2 Blackf., 198; Hovey v. Holcomb, 11 Illinois R., 660; Revised Statutes of Arkansas, chapter 65, section 10; Revised Statutes of Missouri, chapter 68, section 3; Revised Statutes of Michigan, part 1, title 1-, chapter 1. sec- 27; Wisconsin Revised Statutes, page 164; Thompson's Florida Digest 178. In Maine, the Statute runs thus: " all trusts, except, &c., shall be created and manifested by some writing, &:c.," Revised Statutes of 1847, chapter 92, section 31. Ace. Rev. Stat. New Hampshire, (1842,) chap. 130, sec. 13; Rev. Stat, of New York, 3d ed., part 2, chap. 7, tit. 1, sec 6. The 7th section of the Statute of Frauds has been omitted in North Caro- lina, consequently trusts may be proved by parol; Foy v. Foy, 2 Hayw., 296. So, too, perhaps, in Tennessee; see Caruther's & Nichols' Digest, 350; Meig's Digest, 541; Thompson v. Thompson, 1 Ycrg., 100; McLana- han V. McLanahan, 6 Plump., 99; Haywood v. Ensley, 8 Humph., 460. In Virginia, the section in question was omitted both in the earlier acts and in the Code of 1849, tit. 33, chap, 116, sec. 1; see Bank v. Carrington, 7 Leigh, 576. In Ohio it was ruled that before the Act of 1810, a trust in land might be proved by parol; Flemming v. Donahoe, 5 Ohio, 255; and that statute (1810,) does not apparently re-enact that section (7). But see Star v. Star, 1 Ohio, 329. In Pennsylvania, also, after some discus- sion, it has been settled that under the Act of 1779, trusts may be proved by parol. Murphy v. Harbert, 7 Barr., 420; Tritt v. Crotzer, 13 Penn. St. R., 451; Wetherell v. Hamilton, 15 Penn. St. R., 195; Morey v. Ilerrick, 18 Penn. St. R., 128; Blyholder v. Gilson, 18 Penn. St. R., 134. But by a recent statute of the state the law has been changed, and the provisions of the English statute adopted; Bright, Purd. Sup., 1174. AN EXPRESS APPOINTMENT. 353 are certain essential requisites o^ form and substance necessary to pass the title to such trustee. Indeed, by the construction put upon the words of the statute by the court, it is held that a trust of land may still be effectually created by parol, provided the existence of the trust be "manifested and proved" by written evidence. This, then, gives rise to a distinction between the act creating the trust, and the written declaration by which that act or inte?it is " manifested and proved;'' because-the crea- tion of the trust might precede the making of the written declaration. This difference of time be- tween the creation of the trust and making the writ- ten declaration thereof, has given rise to distinctions of considerable importance. The question to be considered was, whether the trust derived its exist- ence so as to form a part of the disposable property of the cestui que trust from the time of its original creation, or from its written manifestation. If it only derived its legal existence from the written manifestation, then, up to that time, it would be liable for the acts and incumbrances of the ostensi- ble owner.^ But finally the courts have decided that the written declaration relates back to the time of the original creation of the trust, and so they give effect to all the intermediate acts of the cestui qui trust, and, thus," defeat the rights which parties claiming under the trustee might have other- *Hill on Trustees, 56. ' Ambrose v. Ambrose, 1 P. Wm., 322; AVilson v. Dent, 3 Sim., 38-5; Gardner i'. Rowe, 2 S. & St., 346; S. C, 5 Ross, 258; but see Morgan v. Randall, 12 Ves., 74. 23 354 TRUSTEES CONSTITUTED BY wise acquired, except as to bona fide purchasers, for a valuable consideration, without notice. Inasmuch as a trustee is the " person in whom some estate, interest, or power in or affecting pro- perty, is vested for the benefit of another," and that estate, etc., is the legal estate, it follows that where the declaration of the trust and the appointment of the trustee are in the same instrument which vests the legal estate in the trustee — and such is usually the case — the trustee is constituted by such instru- ment, whether it be by deed or will. But inasmuch as it is not necessary that the conveyance of the lesral estate to the trustee, and the creation of the trust, or constitution of the trustee, should be con- tained in the same instrument, the trustee may be constituted by any other instrument in writing, made in contemplation of, or cotemporaneously with, such conveyance: provided the intention of the grantor or donor that the one taking the legal estate shall hold for the benefit of another, is clearly evinced in such instrument. So, likewise, the owner of property may convert himself into a trustee with- out transmuting the possession, by making a proper declaration of the trust in writing.^ In examining these questions, it is proper to remember that the creation of the trust, the constitution of the trustee, and the conveyance of the estate to the trustee, may each be performed by different acts or instruments. Thus, the convevance of the estate to the trustee •Pinkett v. Wright, 2 Hare, 120; Meek v. Kcttehvell, 1 Ilare, 4G9; Siiarez v. PumpcUy,. 2 Sandf. Ch., 330. AN EXPRESS APPOINTMENT. 355 may appear upon its face to be absolute, and the trust be created by another instrument, or by parol declaration/ Or the trust may be declared, and the trustee subsequently appointed. Thus it will be perceived that a trustee of real property may be constituted by any formal instrument, whether by deed or otherwise, which passes the legal title to the trust estate, provided it contains a proper declaration of the trust ; or he may be constituted a trustee by any other instrument in writing, made in contemplation of, or cotemporaneously with, such conveyance ; or he may be constituted a trustee by parol. It is hardly necessary to remark that a trustee of personal chattels may be constituted by any instru- ment in writing sufficiently evincive of such an in- tent ; as well also by parol. It has already been remarked, that by the con- struction which courts have given to the 7th sec. of 29 Car., 2, trusts of lands may still be effectually created by parol, provided the evidence by which it is to be "manifested and proved" be in writing, " sio-ned by the party who in law is enabled to de- clare the trust;" therefore, written documents of any description evincive of such intention will satisfy the words of the statute.' But the objects MVoodr. Cox, 2M.&Cr.,684. « Mercroft v. Dowdiug, 2 P. Wm., 314; Orleans v. Chatham, 2 Pick., 29; Hardin v. Bond, Litt., 34G; Graham v. Lambert, 5 Humph., 595; Gomez V. Tradesman's Bank, 4 Sand. S. C, 106; Blake v. Blake, 2 Bro. P. C, 250; Steere v. Steere, 5 J. C R., 12; Raybold v. Raybold, 20 Penn. St., 308; Abeel v. Radclifl', 13 John. R., 297; Murry v. Glasse, 23 L. J. Ch., 126. 356 TRUSTEES CONSTITUTED UNDER A POWER and nature of the trusts must appear from such documents with sufficient certainty, as well as their connection with the property in question/ Trusts are created and trustees constituted more frequently by will than by other instruments in writing ; and it has been held that if the instru- ment containing such a declaration be too informal to be supported as a will, it might, if signed by the party, be sufficient evidence of the creation of the trust, to take it out of the Statute of Frauds.' Section II. A TRUSTEE MAY BE CONSTITUTED BY AN APPOINTMENT UNDER A POWER CONTAINED IN THE INSTRUMENT CREATING THE TRUST. Trusts, being in their nature matters of confidence reposed in the trustee, who is invested with the legal title and control of the trust property, must be exe- cuted by the person or persons to whom they are confided ; consequently, the duties of the office of trustee cannot be delegated by him to another, un- less the instrument creating the trust clearly confer such power upon him."^ The power to nominate new trustees is usually created by deed or will, and should be expressly conferred by such instruments. And the power should state with great particularity the cases or circumstances under which new trus- ' Rutledge v. Smith, 1 McCord Ch., 119; Arms v. Ashley, 4 Pick., 71; Preeport v. Bartol, 3 Grcenl., 340. ^ Nab V. Nab, 10 Mod., 404; but sec Johnson v. Ball, 5 De G. &. S., 85. = Selden v. Vermilyea, 3 Comst., 336; Suarcz v. Pumpelly, 2 Saiidf. Ch.,336; Chalmers v. Bradley, 1 J. & W., 68; AVilkinson v. Parry, 4 Russ., 272; Adams v. Paynter, 14 L. J. (N. S.) Ch., 54. CONTAINED IN THE INSTRUMENT. 357 tees may be appointed, and by whom such appoint- ments are to be made. Thus, it should state cases; as in case of deatli ; or refusal to act ; the refusal to accept ; the absence from the country ; the wish to retire ; or, the future incapacity to serve or dis- charge the duties of the office, of any one or more of the trustees ; then, the surviving trustee or trus- tees, or some other person named, with the consent of the surviving co-trustee to appoint a new trustee or trustees, etc. In this way, if great care is taken to provide for every possible contingency in which a change or new appointment may become necessary, much trouble and expense, and not unfrequently, great mischief may be avoided.^ If there should be ambiguity in the power respect- ing the cases in which, the circumstances under which, or the persons by whom, the appoinment is to be made, it would be unsafe to proceed without applying to a court of chancery for its order in the premises. For, should a trustee be appointed with- out such authority being contained in the instru- ment, as, the particular case not being provided for, or the appointment being made by the wrong person or at the wrong time, and should the trust property be conveyed to such trustee, although he would take the legal title or estate in the property, the office of trustee with all its responsibilities, would remain unchanged. The original trustee or trustees, if any such were remaining, would continue to be respon- sible to the cestui que trust for any misconduct or * Wilson V. Towle, 36 N. H., 129; Leggett v. Hunter, 19 N. Y., 445. 358 TRUSTEES CONSTITUTED UNDER A POWER breach of trust commit ted by the new party/ And the new trustee, so irregularly appointed, would not be authorized to exercise any of the powers pertain- ing to the office of trustee, in dealing with persons respecting the trust estate : but he would himself be liable as trustee de son tort, as would any stranger who should, of his own authority, enter into the possession of the property or assume the manage- ment of the trust.'- The same will be the case if there be irregularity in the mode of exercising the power of appointment."^ The principle involved is, that the power to appoint a new trustee can only be created by the author of the trust; and the power thus delegated must be exercised strictly ac- cording to the expressed intention of the one crea- ting it.^ Thus, where the power provides that the surviving trustee, on the death, etc., of a co-trustee, is empowered to appoint a new one in his stead, it implies that the one making the appointment is acting as trustee, and, therefore, will not authorize those who refuse to act as tru.stees to appoint others in their stead.'* For the power is given to the trustee ; and those Avho refuse to accept the office are not to be considered as trustees, and, therefore, 1 Chalmer v. Bradley, 1 Jac. k. Walk., 67; Wilkinson i'. Parry, 4 Russ., 276; Sharp v. Sharp, Barn. & Aid., 405; McAdam v. Logan, 3 Bro. Ch. C, 310. ^ See Adams v. Paynter, 14 L. J. N. S. Ch., 54; Morris v. Preston, 7 Ves., 547; LaFort v. Delafield, 3 Edw. Ch., 32; McCoy v. Scott. 2 Rawle, 222; Goodhue v. Barnwell, Rice's Eq., 198. ' Selden v Vermilyea, 3 Comst., 336. * Sharp V. Sharp, 2 Barn. & Al., 413; McAdam v. Logan. 3 Bro. Ch. Cas., 310. CONTAINED IN THE INSTRUMENT. 359 not authorized to act under the power. Thus, also, where the settlement appointed two trustees, and provided "that if the said trustees, or either of them, should die, or become desirous of being dis- charged, or refuse or become incapable to act, the settlor, during his life, and, after his decease, the surviving or continuing trustee or trustees, or the executors or administrators of the last acting trustee, might appoint any other person or persons to be a trustee or trustees, in the stead of the trustee or trustees so dying, or desiring to be discharged, or refusing or becoming incapable to act; and upon every such appointment the trust premises should be so transferred that the same might become vested in the new trustee or trustees, jointly with the surviving or continuing trustee or trustees, or solely, as the case might require." The settlor died with- out appointing new trustees, and the two original trustees, being desirous of being discharged from the trust, afterwards appointed by the same deed, two other persons to be trustees in their stead. It was held not to be a valid appointment by the Mas- ter of the RoUs.^ It was also held, in the case of Sharp V. Sharp," that, where three distinct classes of trustees are appointed by name for as many dis- tinct properties, and the power to appoint new trustees is expressed to take effect upon the death, etc., of any one of the first class of trustees by name, so far as applied to the trusts reposed in ' Stones V. Rowton, 17 Jurist, 750; 21 Eng. L. & Eq., 440; but see Miller v. Briddon, 18 L. J. Ch., 226; S. C, 1 De G. Mac. Sc G., 335. ^2 Barn. & Al., 413. 360 TRUSTEES CONSTITUTED UNDER A POWER tliem ; or upon the death, etc., of any one of the second class of trustees by name, so far as applied to the trusts reposed in them; and there was no mention of the third class of trustees, the power did not apply to the last class of trustees, or the pro- perty vested in them as such ; but that it was con- fined to those two classes which were expressly mentioned/ There has been a question whether a power which provides for the appointment of new trustees by the survivor, in case of the death, etc., of any of the original ones, would extend to the appointing of new trustees in the place of those who died during the life time of the testator.^ Thus, in the case of Walsh V. Gladstone, three trustees w^ere appointed by will, which provided that in case all or any of said trustees should die, etc., that it should be law- ful for the surviving, continuing, or acting trustee or trustees, to appoint new trustees. Two of the trustees died in the testator's life time. It became unnecsseary to decide this question; yet the vice- chancellor remarked that it appeared to him very questionable whether the survivor in such a case had the power to appoint new trustees.' The same opinion was held in the case of Winter v. Rudge,^ where the will gave the power to the cestui que trust during her life time, and, after her death, to the then surviving or continuing trustee, to appoint any new trustee or trustees as often as any of the first ' See preceding note. ''S Jur., 51; 14 Sim., 2. ' 15 Sim., 596. CONTAINED IN THE INSTRUMENT. 361 or future trustees should die, etc. ; and one of the trustees died in the testator's life time.^ This doubt arose from the fact that the persons dying in the life time of the testator had never filled the charac- ter of trustees, so as to come within the terms of the power.^ But this doubt is now settled the other way.^ . . The strictness with which courts adhere to the intention of the testator in their interpretation of these powers of appointment, is further illustrated in the case of Attorney General v. Pearson.* In that case it was held by Lord Eldon, that a power in a deed of settlement of a dissenting chaj^el for the appointment of new trustees on the desertion or removal of any existing trustee, did not apply to a case where a trustee had left the trust, because it had been converted by the other trustee, to purposes distinct from the intention of its founder.* Where the trust instrument provides that in case of the death, &c., of one of the trustees, the sur- vivors, &c., shall appoint a new trustee, or trustees, and one of the trustees dies, and the survivor wishes to retire from the trust, it is improper for him to appoint his successor and the new trustee in the place of the one deceased, by the same deed : and if he do so, the appointment will be set aside ."^ The ' See preceding note. * Hill on Trustees, 178. ' Earl of Lonsdale v. Becket, 19 L. J. Ch., 342; Hadley's Trust, 21 L. J. Ch., 109; 16 Jur., 98; 5 De G. & S., 67. « 3 Mer., 412. ' White V. Parker, 1 Bing. N. C, 582; Stones v. Rowton, 17 Jur., 750; 21 Eng. L. & Eq., 440; but sec Miller v. Priddon, 18 L. J. Ch., 226. 362 TRUSTEES CONSTITUTED UNDER A POWER pro^Der course to be pursued in such a case would seem to be, that the surviving trustee should appoint a successor to the one deceased ; then the newly ap]3ointed trustee, by a subsequent deed, could appoint another in the place of the retiring one.^ Under a power of apjDointment conditioned, among other things, upon a vacancy occurring by any of the trustees becoming "incapable" or "unfit" to act, it is held that there is a distinction between incapacity and unfitness. A bankrupt may be unfit to act, and yet be capable of acting; while another may be fit to act, and yet from circumstances, become incapable of acting. In the case of Re Roche, ^ Sir E. Sugden held, that the bankruptcy of a trustee rendered him unfit to act, so as to make an appoint- ment valid, which w^as made in pursuance of power to appoint, conditioned on the trustee becoming unfit; whereas, in the case of Re Watt's settlement'^ it was held, that a trustee who had become bankrupt and who had been indicted for not surrendering to the fiat, and had absconded, was not within the words ^'incapable of acting.'^ That the words, "incapable to act," contemplated personal incapacity. So also in the case of Withington v. Withington,* the Vice Chancellor held that a powder in a will to appoint new^ trustees in case the trustees thereby appointed should become ^'■incapable of acting,^^ did not autho- ' Hill on Trustees, 179. * 1 Conn. Laws, 306; Shryock v. Waggoner, 28 Penn. St., 430. = 15 Eng. Law & Eq., 67; 9 Hare, 106; 15 Jur., 459; 20 L. J. Cli., 337; Wilson V. Wilson, 6 Scott, 540; Turner v. Maule, 15 Jur., 761. * 16 Sim., 104; but see Mennard v. Wilford, 1 Sni. & Gifif., 426; also see Walker v. Brungard. 13 Sm. & M.. 724, 758. CONTAINED IN THE INSTRUMENT. 363 rize tlie donee of the j)ower to appoint a new trustee in the ^Dlace of one who had gone to reside in China. ^ According to the principle that the power of appoint- ing new trustees can be exercised only by those persons to whom the power is given, (and this rule is in analogy with the general rules that govern the laws affecting powers,) where the power is given to a 23articular office by ncvnie without any other words extending the power, or where it is given to several persons by name in the like manner, if the office cease, or one of the parties thus named die, the power will be gone. If, however, extending words are added, like those of "survivorship," or "execu- tors," &c., or, if it appear that the power was given to them as a class of persons, as to my " trustees," " my sons," " my executors," omitting their proper names, the authority will survive while the plural number remains," and in case of executors by a single survivor.^ Also where a power is given to a trustee, his heirs, executors and administrators, the power cannot be executed by a devisee or assignee,* nor can it be exercised by any person or ofiice not particularly specified.^ Mr. Sugden in his Treatise on Powers,^ remarks : " Mr. Hargrave has endeavored to establish that where the power is given to executors, or to per- sons nominatim in that character, the survivor may ' See preceding note. ^ Hill on Trustees, 184. =* 1 Sug. onPo., 244, (6th ed). * Bradford v.- Belfleld. 2 Sim., 264. * 1 Sug. Pow., 244; Houel v. Barnes, Cro. Car., 382. ' 1 Sug. Pow., 146. 364 TRUSTEES CONSTITUTED UNDER A POWER sell, as the power is given to them ratione officii, and as the office survives, by parity of reason, the au- thority should survive. And the liberality of mod- ern times will probably induce the courts to hold, that in every case where the power is given to executors, as the office survives, so may the power." ^ " As the law now stands, it seems, " 1. That when a power is given to two or more by their proper names, who are not made executors, it will not survive without express words." " 2. That where it is given to three or more generally, as to 'my trustees,' 'my sons,' &c., and not by their proper names, the authority will sur- vive whilst the plural number remains." " 3. That where the authority is given to execu- tors, and the will does not expressly point to a joint exercise of it, even a single survivor may execute it. But," " 4. Where the authority is given to them nomina- tim, although in the character of executors, yet it is doubtful whether it will survive." " 6. But where the power to executors to sell arises by implication, the power will equally arise to the survivor." ^ It is a general rule that the power of appointing new trustees will be confined strictly to those per- sons who answer the description in the will or deed.^ Therefore it cannot be exercised by the ' Forbes v. Peacock, 11 Mees. & Wels., 630. " 1 Sug. Pow., 146. 'Colev. Wade, 16 Ves. Jr., 27; 1 Sugd. Pow., 148; Bradford v. Bel- field, 2 Sim.. 264; Cafe v. Bent, 3 Hare, 245. CONTAINED IN THE INSTRUMENT. 365 heirs, or personal representatives of the trustee, or by his assignee, unless the authority be expressly limited to them.^ This strictness, however, does not extend to the difierence between a " surviving" and "continuing" trustee. Hence, the power given to a surviving trustee to appoint a new trustee, may be exercised by a continuing trustee.^ It is seldom that questions can arise as to the parties by whom the appointing power should be exercised, especially, where any care has been exercised in drawing up the power. It sometimes happens, however, that questions arise on the con- struction of these instruments which make it doubt- ful whether the surviving, continuing or retiring trustee shall make the appointment. On this sub- ject Mr. Jarman^ makes the following observations : " On behalf of the surviving or continuing trustee, it may reasonably be urged, that he should have some share in the nomination of one who is to be his coadjutor in the trust. While on the other hand it does not seem quite right to enable him to fill the trust wdth his own nominees, as by so doing one of the objects of having a plurality of persons in the trust, namely that one should be a check upon the other, may be defeated, since the continuing trustee if he were dishonestly disposed, would select for his coadjutor one who would further his designs. Perhaps the best mode of meeting the difficulty is to give the power to both the retiring and continuing ' Bradford v. Belfleld. 2 Sim., 264. "" Eaton V. Smith, 2 Beav., 236; Lane v. Debenham, 17 Jur., 1005. ' 6 Jarra. Bythew. Convey., p. 506 and 507 366 TRUSTEES CONSTITUTED UNDER A POWER trustee, or such of them as shall think proper to exercise it." ^ In the case of Stones v. Rowton,'^ it was held that the words in the power, "the surviv- ing or continuing trustee " should appoint, &c., did not extend to those trustees who resigned their trusts, and appointed others in their places ; for such were neither surviving or continuing trustees. Upon the principle of executing strictly the in- tention of the testator, where more trustees than one are originally appointed, the power as usually worded, does not authorize one of the trustees to retire, and without appointing another person in his place, to vest the entire property in his colleague as sole trustee.^ In the appoinment of the original number of trustees, and by providing for keeping that number good, and then committing the trust to their management, the donor of the trust has signi- fied wdiat he deems to be essential for the proper security of it. Therefore, any exercise of the power thus given, by which the number of trustees would be diminished, would seem to be unauthorised and irregular.* In pursuance of this principle, it has been held that the original number of trustees can- not be lessened, unless, from the wording of the j)ower, some discretion of that kind is given to the donee of the power. In the case of Hulme v. Hulme,^ it was held that where, by the terms of the ' See preceding note. ^ 17 Jar., 750, and 21 Eng. L. & Eq., 440. ^ Wilkinson v. Parry, 4 Russ., 274. * Mass. Gen. Hospital v. Araory, 12 Pick., 448; Meinertzbagan v. Davis, 1 CoU. Ch. R., 353; 8 Jur., 973. " Mylne & Keen., 682. CONTAINED IN THE INSTRUMENT. 367 settlement, it appears to be the intention of the parties that there shall be at all times two trustees of the property comprised in the settlement, the appointment of a single trustee in the place of the two original trustees, and the transfer by them of the trust property to such single trustee, is a breach of trust for which the trustees are responsible. The same principle was held in the case of Massachusetts General Hospital v. Amory.^ In that case two trustees w^ere appointed by the testator ; and the wdll provided that in case the trustees named, or either of them, should resign the trust or die before having fully performed and executed the same, " the judge of probate having jurisdiction of the will shall forthwith appoint one or more trustee or trus- tees in place of such trustee or trustees so failing." The trustees named accepted the trust, and one of them dying, the other resigned afterwards before the trust had been fully performed. It was held by the court that the appointment by the judge of probate of one person as sole trustee was not a com- pliance with the intent of the will, and that two trustees should have been appointed.^ In Green v. Borland,^ it was held that, under the statute of Massachusetts,^ where the testator devised property to two trustees and both declined the trust, and the will had made no provision for perpetuating the trust, that the probate judge, after notice to all the parties, and with the consent of the cestuis que trust, M2Pick., 448. MMotcf.,332. ^ 1847, chap. 190, sec. 40. 368 TRUSTEES CONSTITUTED UNDER A POWER could appoint a single trustee to execute the trust.' But this decision was under the statute, and was distinguished from the case of the Hospital v. Amory, above cited. As it is the intention of the donor of the power which governs in these cases, if it can be gathered from the wording of the power that he did not intend to make the number of trustees imperative, or that he committed it to the discretion of the donee or donees, etc., then it is probable that the court would sanction the appointment of a less than the original number of trustees. Thus, where the exercise of the power of appointment is not impera- tive on the happening of every vacancy, but the survivors are permitted to proceed with the execu- tion of the trust, this of itself, would prove that the donor of the power did not make the exact number essential to the proper execution of the trust; or where he provides that a certain number shall be a quorum to transact the business, etc. ; in these and the like cases, it is conceived that some latitude would be allowed in the ajDpointment of the exact number of the original trustees." In the case of Corrie v. Byrom,^ a testator devised all his real estate to five trustees, and the survivors, and sur- vivor of them, and the heirs and assigns of such survivor, in trust, to sell for the benefit of his chil- ' See preceding note. * Sands v. Niigee, 8 Sime, 130; in re Welch, 3 M. &, Cr., 293; Lewin on Trusts 465. ' In re Fagg's Trust. 19 L. J. Ch., 175; Pool v. Bathurst, 2 Sm. St Giff., 169; Buckley v. Earl of Eglinton, 19 Jurist, 99i. CONTAINED IN THE INSTRUMENT. 369 dren and the issue of any deceased child, in such manner as his wife should appoint, etc. He also empowered the trustees or trustee, for the time being, to appoint any new trustees or trustee in case of the death or retirement, etc., of the existing trustees or trustee. His wife was one of the trustees, and all the trustees were appointed his executors. They all proved the will and accepted the trust. Three of them afterward, and at different times, died ; and, upon the death of the third trustee, the two survivors appointed a new trustee jointly with themselves, and at the same time the trust estate was conveyed to the three jointly, upon the trusts of the will, Shortly after this, the two remaining original trustees died, leaving the newly appointed trustee sole trustee of the estate. He, then, appointed a new trustee in the place of the last deceased ; and the newly appointed trustee, on the day following, by deed, reciting that his co-trustee wi; Willard's Eq., 423, 4; 1 R. S., 773, sec. 2; Gott v. Cook, 7 Paige, 534; S. C. on Apl.. 24 Wend., 641; De Peyster v. Clendining, 8 Paige, 305. ' 1 R. S., 726, sec. 37 and 38, also id., 773, sec. 3 and 4: Bryan v. Knickerbocker, 1 Barb. Cli. R., 425, 426; Will. Eq., 424; Jennings v. Jen- nings, 3 Seld., 547; also, Amory v. Lord, 5 Seld., 403. ^ Van Vechten v. Van Vechtcn, 8 Paige, 104; De Peyster v. Clendining, 8 Paige, 305; S. C, 26 Wend., 21; Irving v. De Kay, 9 Paige, 523; S. C, 5 Deuio. 646. *Will. Eq., 424; 1 Mad. Ch. Pr., 364; King r. Donnelly. 5 Paige, 46; Burnett v. Silliman, 3 Kern., 93. ' 5 Seld., 176. UNDER STATUTE IN PENNSYLVANIA. 403 from the statute, to remove a trustee and appoint a new one; and, hence in cases not otherwise provided for or regulated by statute, the court would exercise its inherent power setting as a court of chancery. Pennsylvania. — Prior to 1 825 there was no Court of Chancery in Pennsylvania, consequently the execution of trusts was unaided by the courts. In 1825 the legislature passed "An act to prevent the failure of trusts," ^ by which they enacted, that the Supreme Court should have power to grant relief in equity in all cases of trusts, so far as regards the appointment of trustees, either in consequence of the death, infancy, lunacy or other inability of a trustee or trustees to fulfil his or their duties ; or where a trustee or trustees named in any deed or last will and testament, renounce or refuse to act under such appointment ; or where one or more of several co-trustees was dead or non compos mentis, and the duties of the trust required the joint act of the trustees; and also compelling the trustee or trustees, when the trust has expired, to convey the legal estate. By the 2d section of the act, they provided, that, in any of the aforesaid cases, the cestui que trust, or other persons interested in the exe- cution of the trust, might apply to the court by petition, setting forth the facts of the case under oath or affirmation ; and that the court, on hearing all parties concerned, were authorized to appoint a trustee or trustees in the place of those who may come within the provisions of the 1st section, hav- » Dunlop's L. of P., 392, passed 22(i March, 1825; Pamp. L., p. 107. 404 TRUSTEES CONSTITUTED BY THE COURT ing due regard to the original objects of the trust, as fully as a court of equity could or might do ; and that, upon such appointment being made, all the estates, rights, powers and authorities of such super- ceded trustees should cease and determine, and be deemed and taken to vest in the person or persons so appointed as fully, to all intents and purposes as if they had been originally appointed trustees. The 3d section of the act provides for the settlement by the trustee, and his discharge by the court, from further duties and responsibilities/ By an act, 14th April, 1828, the same jurisdiction was extended to the circuit court ^ and the district court for the city and county of Philadelphia, and to the several dis- trict courts and courts of common pleas in the other counties of the state.^ And by the 13th section of the act of June 16th, 1836, " relative to the jurisdic- tion and powers of the courts,'"* the Supreme Court and the several courts of common pleas were invested with the jurisdiction and powers of a court of chan- cery so far as, among other things, relates to the control, removal and discharge of trustees, and the aj^pointment of trustees and the settlement of their accounts.'' By the 15th section of the act, 27th Jul}'-, 1842, it is provided, " that the Court of Com- mon Pleas of each county, and also the district courts thereof, shall have full power and authority * See preceding note. * This court abolished by 163d section of Act of 14th April, 1834; see Dunlop P. L., p. 562. ' Dunlop P. L., 420. * Dunlop P. L., 752. UNDER STATUTE IN PENNSYLVANIA. 405 to compel any infant trustee or trustees, or their guardian or guardians, to make and execute such deeds and assurances of trust estates to such person or persons entitled thereto as shall be equitable and just," and makes such deeds, etc, effectual in law to make good title, etc/ As to the mode of proceeding in these cases under the act of June 16, 1836, conferring upon the Supreme Court, etc., the jurisdiction and powers of chancery in certain cases, it must be by bill and subpoena.^ The court will not grant relief upon petition, as by the act of 1825. But the act of March 22, 182 A, does not empower the supreme court to compel a trustee to pay over trust moneys in his hands, and, in default thereof, to dismiss him from the trust.^ By the 15th section of "An Act relating to assignees for the benefit of creditors, and other trustees," of June 14, 1836,^ it is provided : "That whenever any assignment, conveyance or transfer (excepting assignments or transfers for the benefit of creditors), shall have been made, or shall hereafter be made, by deed, will, or otherwise, of any estate, real or personal, to any person or cor- poration in trust for, or for the the use and benefit of, any person, or association of persons, or corpor- ation; also, whenever any trust shall arise by oper- ation or implication of law, the court of common pleas of the county in which any such trustee shall have resided at the commencement of the trust, or. ' Dunlop P. L., 879. ' Ex parte Hussey, 2 Whar., 330; also ex parte Morton, id. ' Dunlop P. L., p. 689. 406 TRUSTEES CONSTITUTED BY THE COURT if such trustee be a corporation, in which such cor- poration is situate, or in which its principal officers shall have resided as aforesaid, shall exercise the jurisdiction and powers given by law in regard to such trusts: Provided, That nothing therein con- tained should extend to trusts created by will, and vested in executors or administrators, either by the words of the will, or by the provisions or operations of law, whenever such executors or administrators are, by the existing laws, amenable to the orphan's court."^ By the 16th section of the same act, it is provided that the court of common pleas, or any judge thereof, on the application of any person inte- rested in the trust fund or estate, co-trustee, or co-assignee, and, upon affidavit that any trustee as aforesaid is wasting, neglecting, or mismanaging such estate or fund, or is in failing circumstances, or about to remove out of the commonwealth, may cite such trustee to appear at a time named, and show cause why he should not be dismissed from his trust/ The 18th section of the same act pro- vides that, in case of infancy, or temporary absence of any trustee, it shall be lawful for the court having jurisdiction as aforesaid to appoint a trustee during such infancy or absence; and that the trustee so appointed shall have all the necessary powers for the due administration of the trust/ The 20th section provides that when any trustee, etc., shall have been duly declared to be a lunatic, or habitual drunkard, or shall have removed from the state, or > Dunlop P. L., 690. UNDER STATUTE IN PENNSYLYANIA. 407 ceased to have a known place of residence therein during the period of a year or more, the court hav- ing jurisdiction may dismiss him.^ The 22d section provides that the court having jurisdiction may dis- charge a trustee, etc., upon his own application by bill or petition, for such cause as in equity would entitle him to relief/ The 23d section provides that the several courts having jurisdiction as afore- said shall have power to appoint trustees, etc., as aforesaid, in the following cases : 1. Where any sole assignee or trustee shall re- nounce^ the trust, or refuse to act under, or fully to execute the same. 2. Where any such trustee, etc., shall die, or be dismissed by the court from the trust, or shall be discharged by the court therefrom. 3. Where one or more of several trustees, etc., shall renounce or refuse as aforesaid, or shall die or be dismissed, or discharged as aforesaid, and the duties of the trust require the joint act of the trustees. 4. In any case in which a trust shall have been created and no person appointed, either by name or by description, to execute the same. The appointing power aforesaid to be exercised on the application by bill or petition of any person interested in the subject of the trust, and not other- wise ; due notice to be first given to all parties con- cerned.^ 'DunlopP. L.,691. » Read v. Robinson, 6 W. & S., 329. ' Dunlop P. L., 691. 408 TRUSTEES CONSTITUTED BY THE COURT It would seem that where the power or trust is in executors virtute officii, the Orphan's Court has exclusive jurisdiction ; but where it is given to them nominatim, it has concurrent jurisdiction, with the Common Pleas/ The next of kin of a living cestui que trust, though the latter is of weak intellect, is not a person inte- rested within the meaning of the 16th section, pro- viding for the application by any persons interested in the subject of the trust, for the removal of a trustee.^ When a trustee, on an inquisition, has been duly declared a lunatic or habitual drunkard, the inquisition is not of itself a removal, but only that upon which the court may remove, etc.^ The power of appointment under the 23d section, does not apply to the trusts annexed to the office of executor,* nor to passive trustees where the deceased trustee was merely the depositary of the legal title .^ The office of trustee and executor may be vested in the same individual, yet be distinct, so that the acts pertaining to each office are distinct from each other.' By the 1st section of the act relative to the ap- pointment of trustees by the Orphan's Court, etc., it is provided that from and after the passing of said act (22d April, 1846), in all cases where any trustee ' Brown's Appl., 12 Penn. St. Rep., 333; Fritz's Appl., 4 W. & S., 435; Worman's Appeal, 1 Wharton, 96. ' Kuhler v. Hoover, 9 Barr., 331. ' Sill V. McKnight, 7 W. & S., 244. * Olwin's Appeal, 4 Serg. & Watts, 492. ' Carlisle's Appeal, 9 Watts, 332; see also 2 Ashm., 527. • Egbert's Appeal, 9 Watts, 300; Wheatley v. Badger, 7 Barr., 459. UNDER STATUTE IN PENNSYLVANIA. 409 or trustees created or vested with authority by the last will and testament of any deceased person, or any writing testamentary in the nature of a will, shall die, resign, or be otherwise removed from the trust, the Orphan's Court of the proper county shall have power to appoint another trustee or trustees to supply such vacancy ; and such court shall re- quire security for the faithful performance of the trust, etc.^ Also by the 2d section of the act relative to the appointment of trustees in the county of Philadel- phia, &c. (April 10, 1849),'Mt is provided that when- ever by the provisions of any last will and testament admitted to probate in the city and county of Phila- delphia, a trust has been or shall be declared of and concerning any real and personal estate, to be exe- cuted by the executor or executors of said last will, whether by virtue of their office or otherwise, and if any of the executors shall die, renounce, resign, be dismissed from or refuse to act in said trust, leav- ing the other executor or executors continuing there- in, it shall be lawful for the Orphan's Court of the city and county of Philadelphia, on the application of any party in interest, and with the consent of such continuing executor or executors, with notice to such of the other parties in interest as the said court may deem material, to appoint a trustee or trustees in the place of the executors so dying, re- nouncing, resigning, dismissed, or refusing to act ; ' Dunlop P. L., 960. 'DunlopP. L.,1053. 410 TRUSTEES CONSTITUTED BY THE COURT which said trustee or trustees shall have the same power and interest over and in the premises in trust as those, etc., in whose stead they are ap- pointed, etc. ; and the court may also appoint a suc- cessor or successors from time to time to such trus- tees, whenever from death, resignation, or other- wise, the same may be necessary or expedient.^ A married woman possessed of a separate estate under the act of 1848, may, by the act of 1850, apply to the Court of Common Pleas of the proper county, for the appointment of a trustee other than her husband. Where trustees reside out of the state, and any of the trust property is within the state, the court may appoint resident trustees to act in conjunction with the foreign trustee.^ Massachusetts. — It is provided by the Revised Statutes of Massachusetts, in " An Act giving equi- table remedies in suits at law,"^ " that all suits for the enforcing and regulating the execution of trusts, etc., shall be by action of contract, setting forth the facts and circumstances of the case so far as may be necessary, and praying relief in equity ; and by the 3d section of said act, it is provided, that in all the foregoing actions, (that of trusts is included) in which relief in equity is prayed for, the court (which by the 4th section of the act is made the Supreme Judicial Court,) at any time after com- mencement of process as well in term time as vaca- ' See preceding note. " Dimlop P. L., 763. ' Rev. Stat. 1854, chap. 371, p. 982; see also R. S. 1860, chap. 100, sec. 22, p. 503. UNDER STATUTE IN MASSACHUSETTS. 411 tion, may make and award all such decrees, judg- ments, orders and injunctions, and issue all such executions, and other writs and processes, and do all such other acts as may be necessary and proper, to carry into full effect the powers to grant such re- lief. It would seem from the decisions of the courts of Massachusetts in the case of trusts, that they claim a common law jurisdiction in such cases as necessary to give the relief required.^ But in addition to this jurisdiction, the statutes of Massa- chusetts have made special provisions in the case of appointing and removing trustees. Thus, by the Revised Statutes," in an act authorizing Judges of Probate to appoint trustees in certain cases, it is provided, " If, in any will creating a trust or trusts, the testator shall have omitted to appoint a trustee to carry the same into effect, the Judge of Probate may, after notice to all persons interested, appoint a trustee,'' and also, " the trustee so appointed, shall have and exercise the same powers, rights and duties, as if he had been originally appointed by the testator, and the trust estate shall vest in him in like manner as it would have vested if appointed by the testator."^ By an act for the appointment of trustees for minors and others, etc.,^ in the 1st section it is pro- vided, that persons appointed trustees, etc., under ' See Sanderson v. White, 18 Pick., 332; Murdocli, appellant, 7 Pick., 322. ^ Rev. Stat. 1854, chap. 158, p. 332, March 18, 1845; see also R. S. 1860, p. 501. 'Rev. Stat. 1836, chap. 69, p. 443; see also R. S. 1860, chap. 100, sec. 15, p. 502. 412 TRUSTEES CONSTITUTED BY THE COURT any last will, (excepting in cases where the testator orders or requests that such bond shall not be taken, unless, etc.,) shall, before entering on the duties of his trust, give bond with sufficient surety or sureties, to the Judge of Probate for the county in which the will shall have been proved, etc. ; and by the act of March 20, 1843/ it is provided that the seventh and eighth sections of the sixty-ninth chapter of the Revised Statutes, are extended to trusts created by deed, either before or after the passage of said act. The seventh and eighth sections referred to, provide, (section 7) that when any trustee appointed either by testator or by Judge of Probate, shall be- come insane, or otherwise incapable of discharging his trust, or evidently unsuitable therefor, the Judge may, after notice to such trustee, and all others interested, remove him and appoint another in his stead, (section 8). When any person appointed a trustee, shall decline or resign the trust, or shall die before the objects thereof are accomplished, if no adequate provision is made by the will for sup- plying such vacancy, the Judge of Probate shall, after notice to all persons interested, appoint a new trustee to act alone or jointly with the others, as the case may be : and such trustees so appointed are to have the powers and discharge the duties, etc., the same as if originally appointed.'^ Thus, by the provisions of these acts, where vacancies occur in the office of trustee, under a will or deed or by the ' Rev, Stat. 1854, p. 253. * Rev. Stat. 1836, p. 444; Green v. Borland, 4 Metcf., 330; Hospital v. Aniory, 12 Pick., 445. UNDER STATUTE IN MASSACHUSETTS. ^^^ appointment of the court, such vacancies are to be filled by the appointment of the probate judge, un- less otherwise provided for by the instrument crea- ting the trust. By the 4th section of the act of 1836,^ if the trustee neglects to give bond as required, he is deemed to have declined the trust, and the office is vacant. In the case of Dorr v. Wainright,^ it is decided that, in the case of a general legacy to one for life, with remainder over, if no provision is made in the will for the appointment of a special trustee to manage the fund, etc., that it is incumbent on the executor to perform these duties, and his bond as executor covers his proceedings in relation to such legacy. By the 5th section it is provided that every trustee may resign his trust, when it shall be proper to allow the same in the opinion of the probate judge.. The 6th section provides that no person, succeeding to such trust as executor or administrator of a former trustee, shall be required to accept the same against his will. Then follow the 7th and 8th sections above referred to. The 12th section^ provides that said courts, (probate and supreme judicial) respectively, may hear and deter- mine in equity all other matters relating to the trusts mentioned in chapter 69. By the Revised Statutes of 1860, ch. 31, p. 205, section 1, of an act upon the subject " of donations and conveyances for pious and charitable purposes," it is provided that the deacons, church- wardens, or ' See preceding note. ns Pick., 328. " Rev. Stat., chap. 69, p. 445, sec. 12. 414 TRUSTEES CONSTITUTED BY THE COURT other similar officers of all churches or religious societies, if citizens of the state, shall be deemed bodies corporate for the purpose of taking and hold- ing in succession all grants and donations, whether of real or personal estate, made either to them and their successors, or to their respective churches, or the poor of their churches. The 2d section provides that, " where the ministers, elders or vestry of a church are, by such grants and donations joined, with the deacons, etc., as donees or grantees, such officers and their successors shall be deemed the corporation for the purposes of such grants, dona- tions, etc." The 3d section provides that the min- ister of every church or religious society of what- ever denomination, if a citizen, etc., may take in succession any parsonage land granted to the min- ister and his successors.^ The 4th section provides that the deacons, etc., shall have no power to con- vey away the lands thus donated, etc., without the consent of the church, or their committee appointed for that purpose ; neither shall the wardens without the consent of the vestry. The 5th section provides that the minister shall not convey the lands held by him in succession, for a longer term than he con- tinues to be their minister, except by the consent of that body of which he is the minister.^ By the 8th section, the overseers of the monthly meeting of Friends or Quakers are the body corpo- 'Rev. Stat. 1860, chap. 31, p. 205; see Sober v. W. & V. St. Paul's Church, 12 Mete, 250; 12 Mass., 546 and 16 Mass., 495; 4 Cush., 281, and 9 Cush., 181; 10 Mass., 93; 15 Mass., 464; 6 Greenl., 355. * 2 Mass., 500; 14 Mass., 333. UNDER STATUTE IN MASSACHUSETTS. 415 rate for the purposes aforesaid, and act as trustees. By the 9th section, all trustees whether incorporated or not, who hold funds given or bequeathed to a city or town, for any charitable, religious or educational purposes, must make an annual exhibit of the con- dition of such funds to the board of aldermen of the city and selectmen of the town, to whom such funds have been donated ; and by the 10th section, the jDrobate court of the county in which the city or town is situated to which funds have been donated as above, on the petition of five persons, shall cite the parties interested to appear and anSwer ; and if a trustee neglects or refuses to make such exhibit, or is incapable of discharging the trust or unsuitable to manage the affairs of the same, the court may remove such trustee and supply the vacancy/ By the 37th section of chapter 68, Revised Sta- tutes, 1860,^ it is provided, " When the charter of a corporation expires, or is annulled or dissolved under the provisions of the 35th section, the supreme judicial court, on application of a creditor, stock- holder or member, within three years, may appoint trustees or receivers to take charge of the estate, etc. ;" and by the 38th section the court has juris- diction in equity of the application and of all ques- tions arising in the proceedings, and may make such orders, injunctions and decrees therein as justice and equity require. By the 41st section of chapter 91, Revised Sta- Rev. Stat,, 1860, chap. 31, p. 206. Rev. Stat., p. 388. 416 TRUSTEES CONSTITUTED BY THE COURT tutes, 1860/ the court (S. J. C.) is empowered to appoint a trustee or trustees to take charge of funds arising from the sale of wood cut from land held by a person for life, with remainder or reversion to an- other in fee simple, under the provisions of said act ; and by the 43d section, the court is empowered to remove such trustees from time to time.^ By the 41st section of the 107th chapter, Revised Statutes, 1860,^ the court is authorized to appoint a trustee to receive and manage the personal property awarded to the woman by the court, on a decree of divorce, under the provisions of the 40th section. By the 4th section of the 108th chapter. Revised Statutes, 1860,^ the supreme judicial court may ap- point a trustee, on the petition of a married woman, to take charge of her separate estate. The appointment of a new trustee by the pro- bate court, in the place of one appointed under a will, and who is deceased, under the Revised Sta- tutes,* vests the trust estate in him without further action.^ Illinois. — Under the laws of Illinois, the Circuit Courts have jurisdiction in law and equity, and in all cases where they have jurisdiction as Courts of Chancery, their mode of proceeding is according to the general usages and practice of Courts of Equity, except so far as their " chancery code" may direct ' Page 473. ' Page 535. * Page 538. * Rev. St., chap. 69, sec. 8. ' Parker v. Converse, 5 Gray, 336. Likewise in Tennessee, see Wool- bridge V. Planters' Bank, 1 Sneed, 297. UNDER STATUTE IN ILLINOIS. 417 to the contrary.^ The Supreme Court has appellate jurisdiction in all cases,^ and may take jurisdiction in agreed cases in law or chancery where they are certi- fied from the Circuit Court under the provisions of the 16th section of the Revised Statutes, 1845, chap. 29. Also the Cook county Court of Common Pleas, has concurrent jurisdiction with the Circuit Courts in all suits and proceedings in law and equity, within Cook county. Under the chancery powers of these courts, the proceedings in the appointment of trus- tees by the court, will be according to the general usages and practice of courts of equity where the trusts are executory. By statute,^ in all cases where persons are seised of or in any messuages, lands, tenements, rents, services, reversions, remainders, or other hereditaments, to the use or trust, etc., of another, such estate is vested in the cestui que trust, to all intents, constructions, and purposes of law. What construction the courts have given to this sec- tion of the statute, is not known ; but they recog- nize still the legal title of the estate as being in the trustee.* In the case of Hall v. Irwin,' the court recog- nized the doctrine that when a trust is created and ' See S. T. & B's Stat. lU., 1858, 1 v., 138, Cha. Code; Rev. Stat. 1S45, chap. 21; Rev. Stat. 184-5, chap. 29, sec. 29. * Const., art. 10, sec. 5. « Rev. Stat., 1845, chap. 24, sec. 3; D. B. Cook & Go's. edit, of S. T. & B. Stat. 111., 1858, p. 9-59. * Sargent v. Howe, 21 111., 148; Gun v. Carlisle, 18 111., 338; Reece v. Allen, 5 Gill. R., 236; Hall v. Irwin, 2 Gill., 176; Morvison v. Kelley, 22 111. R., 610. * Hall V. Irwin, ut supra. 27 418 TRUSTEES CONSTITUTED BY THE COURT no trustee appointed, a court of equity will appoint a trustee. In the case of Morrison v. Kelley/ G., by war- ranty deed, conveyed to R, one undivided half of certain real estate in trust for the separate use of C. H., wife of A. H., providing in the deed, that in case of the decease or legal incapacity of the said trustee R, before the full execution of the trusts in said deed created and declared, then, in either case, the trusts should be executed, etc., by the Court of Chancery of the judicial district or circuit in which La Salle county shall then be situated ; and the legal estate, etc., shall, in such case, vest in said court of chancery. The trustee died before the complete execution of the trusts, and a trustee w^as appointed by the Circuit Court of La Salle county, and the legal estate was vested in him. In giving the decision, Walker J., remarked: "The grantor may declare any use or trust, or confer any power upon the trustee or others which he may choose, so that the object is not prohibited by law, by public policy or good morals, and it will be binding. He may declare the objects of the trust, and confer the power to execute them upon the trustee or upon another. He may convey to a trustee for a limited period, and pro- vide that at that period another may take ; or that at the end of the time, or the happening of an event de- signated, a person named by the deed may nominate." ." It will not be contested that a grantor conveying to a trustee, may confer a power upon an officer, as '22 111., 610. UNDER STATUTE IN ILLINOIS. 419 the chief executive of the state, a circuit judge, a probate judge, or upon any court of record, to appoint a trustee in the event of the death of the trustee named in the deed. From the lan- guage it is clear that it was the intention of the grantor in case of the death of Reed, before the trust was executed, to confer upon the court the power to complete its execution, and expressly pro- vides it shall do so in such a manner as the court shall order or decree, or according to the practice of the court. And when the court shall become satisfied of the death of the trustee, and that the trusts created by the deed are not fully executed, it becomes the duty of the court, on application, to proceed to have the trust executed precisely as if a trustee were to die without heirs, or a trustee in whom a personal trust or confidence is reposed by the deed, dies before he has carried out its provisions. In such cases it is the practice of the court of chan- cery rather than permit the trust to fail for want of a trustee to appoint a suitable trustee, who succeeds to all the powers, rights and duties, as if he were named by the deed." ^ Such appears to be the doc- trine of Illinois upon this subject. There are few special acts of the legislature upon the subject of appointing trustees, but it is left mostly to the action of the court of chancery under its inherent jurisdiction and common law powers. By a statute passed 14th February, 1 8 57, ~ it is provided that, in ' See preceding note. » Sess. L., p. 52; Cook's S. T., 1858, p. 163. 420 TRUSTEES CONSTITUTED BY THE COURT all cases where property, either real or personal, has been conveyed to a trustee, etc., for the use of a married woman, and the trustee or other person has no interest in the property coupled with her interest, and the trustee dies holding such trust, in all cases where it w^ould be the duty of a court of chancery, upon proper application, to appoint another trustee, the court may, if it think proper, and that the interest of the woman would be pro- moted thereby, decree that such married woman hold and convey such property absolutely and in her own name, etc/ Michigan. — The Circuit Courts of the State of Michigan are, by statute, invested with general chancery powers, to be exercised by the circuit judges.^ The powers and jurisdiction of the " cir- cuit courts in chancery," in and for their several counties, are declared to be co-extensive with the powers and jurisdiction of the court of chancery in England, with the exceptions, additions and limita- tions created and imposed by the Constitution and laws of the state. '^ This gives to the circuit courts common law jurisdiction in the cases of trusts, trustees, etc., except so far as the same may be altered and modified by statute. Uses and trusts, except as authorized and modified by the statute,"* are abolished, and estates held as uses, executed ' See preceding note. " Rev. Stat., 1846, chap. 90, sec. 1; Cooley Comp. Laws Mich., 1857, p. 1006. ^ R. Stat., 1846, chap. 90, sec. 21; id., Cool. Comp., sec. 8475, p. 1009. * Rev. Stat. 1846, chap. 63, sec 1; 4 Paige, 352; 4 Paige, 403. UNDER STATUTE IN MICHIGAN. 421 under the laws of the state, are confirmed as legal estates. By section 4, active trusts are excepted from the operation of the statute. So, likewise, by the 6th section, trusts resulting by implication of law are exempted, except in cases where a grant is made to one for money paid by another ; and the creditors of the party paying the money are excepted from this exception. Express trusts are allowed^ to be created for the following purposes : 1. To sell lands for the benefit of creditors. 2. To sell, mortgage or lease lands, for the benefit of legatees, or for the purpose of satisfying any charge thereon. 3. To receive the rents and profits of lands, and apply them to the use of any person, during the life of such person, or for a shorter term, subject to the rules prescribed in chap. 62, Revised Statutes, 1846. 4. To receive rents and profits of lands and to accumulate the same for the benefit of any married woman, or for either of the purposes and within the limits prescribed in chapter 62, w^ supra. For the beneficial interest of any person or per- sons, when such trust is fully expressed and clearly defined upon the face of the instrument creating it, subject to limitations as to time prescribed by this title. By the 12th section^ a devise of lands to execu- tors or trustees, to be sold or mortgaged, when such ' Rev. Stat., 1846, chap. 63, sec. 11. "" Idem. 422 TRUSTEES CONSTITUTED BY THE COURT trustees are not emjDOwered to receive the rents and profits, vests no estate in the trustee, but they take a power in trust, and the legal title descends to the heir or passes to the devisees of the testator, sub- ject to the execution of such power. By the 14th section^ when an express trust is created for any lawful purpose, not enumerated in the preceding sections, no estate vests in the trustee or trustees, but they take a power in trust subject to the regulations of the 64th chapter. Revised Sta- tutes, 1846, and the land descends, etc., subject to the execution of such power. By the 16th section^ express trusts, valid in their creation, except as qualified by following sec- tions, vest the whole estate in the trustee in law and equity, subject only to the execution of the trust ; and the cestui que trust takes no estate in the lands, but may enforce the trust. But the 17th sec- tion qualifies this by providing that it shall not pre- vent any person creating a trust from declaring to whom the lands to which the trust relates, shall belong in the event of the failure or termination of the trust, nor shall it prevent him from granting or devising such lands, subject to the execution of such trust; and every such grantor shall have a legal estate in such lands against all persons except the trustee and those lawfully claiming under him. The 18tli section provides that all interests not em- braced in the express trust, etc., remain in the gran- tor of the trust. By the 20th section it is provided, ' Rev. Stat., 1846, chap. 63. » Idem. UNDER STATUTE IN MICHIGAN. -^23 that when an express trust is created, but is not contained in or declared in the conveyance to the trustees, such conveyance shall be absolute as against the subsequent creditors of the trustee not having notice of the trust; and also as against purchasers from the trustee without notice and for a valuable consideration. By the 23d section, when the pur- poses of the trust cease the trust ceases. By the 24th section, upon the death of the sur- viving trustee of an express trust, the trust vests in the Court of Chancery (if unexecuted), with all the powers and duties of the original trustees, and is to be executed by some person appointed for that purpose, under the direction of the court. By the 25th section, the Court of Chancery may accept the resignation of a trustee upon his own petition, and discharge him from the trust, under its own regulations and upon its own terms. By the 26th section, upon the petition or bill of any person interested in the execution of an express trust, the court of chancer}^ may remove any trustee who has violated or threatens to violate his trust, or who is insolvent, or whose insolvency is apprehended ; or who, for any other cause, shall be deemed an unsuit- able person to execute the trust. By the 27th sec- tion, the chancellor^ is empowered to appoint a new trustee in the place of a trustee resigned or removed ; or the court may appoint one of its officers to exe- cute the trust where, in consequence of resignation or removal, there is no acting trustee. The statutes ' See chap. 90, R. S. 1846, sec. 2, Laws of 1847, p. 33, and June 27, 1851. 424 TRUSTEES CONSTITUTED BY THE COURT of Michigan, on the subjects of trusts and trustees, being very similar to those of New York, they will be subject to a like construction. From an exami- nation of the Reports of that state, it would seem that the attention of their courts has not been called to this subject. By the laws of Michigan,^ every grant or assignment of any trust in lands, goods or things in action, must be in writing signed by the party making the same, or by his authorized agent, or it is void. Wisconsin. — The statute of Wisconsin on uses and trusts, like those of New York and Michigan, provides that uses and trusts, except as authorized and modified in that chapter,^ are abolished ; and every estate and interest in lands is deemed a legal right, cognizable in courts of law, except where otherwise provided in this title (Uses and Trusts). The 2d section provides that estates held to the use of another, executed under the laws of the state, as they formerly existed, are confirmed legal estates. By the 3d section, persons who, by graiits, assign- ments or devises, are entitled to the possession of lands, and the receipt of the rents and profits, in law or equity, are deemed to have the legal estate to the same extent, etc. By the 4th section, active trusts are not affected by the 3d section. By the 5th section, deeds, etc., are to be made directly to the persons beneficially interested, except as other- wise provided, etc. ; and when made to a trustee, ^Rev. Statutes 1858, p. 942 and 948, sec. 3177 and 3199; Whiting v. Gould, 2 Wis. Rep., 552. = Chap. 84, sec. 1, Rev. Stat, of Wis., 1858; see Whiting v. Gould, 2 Wis. Rep., 552. UNDER STATUTE IN WISCONSIN. 425 for the use, etc., of another, the trustee takes no estate. By the 6th section, resulting trusts and authorized express trusts are exempted from the operation of the statute.^ By the 7th section, when a grant of land is made to one, and the conside- ration paid by another, no trust results ; but the alienee takes the legal title, subject to the 8th sec- tion, which provides that such conveyance shall be presumed fraudulent as against the creditors of the person paying the consideration; and, where a fraudulent intent is not disproved, a trust shall arise for the creditor to the extent of paying his debt. But the 9th section provides that the 7th section shall not apply when the alienee takes the convey- ance without the knowledge or consent of the party paying the consideration money, or where it is done in violation of some trust, or with moneys belonging to another. By the 10th section, no implied or resulting trust is to defeat or prejudice the title of a purchaser for a valuable consideration, without notice. By the 11th section, express trusts are authorized for the following purposes : 1. To sell lands for the benefit of creditors. 2. To sell, mortgage or lease lands, for the benefit of legatees, and for the purpose of satisfying any charges thereon. 3. To receive the rents and profits of land, and apply them to the use of any person, during the life of such person, or for any shorter term, subject to the rules prescribed in the 83d chapter.^ ' See Rogan v. Walker, 1 Wis. Rep., 527. * Rev. Stat., 1858, p. 52G, chap. 83. 426 TRUSTEES CONSTITUTED BY THE COURT 4. To receive the rents and profits of lands, and to accumulate the same for the benefit of any mar- ried woman, or for any of the purposes and within the limits prescribed within preceding chapter (83). 5. For the beneficial interest of any person or persons, when such trust is fully expressed and clearly defined upon the face of the instrument creating it, subject to limitations as to time, pre- scribed herein. By the 12th section, devises of lands to executors or other trustees, to be sold or mortgaged, without empowering them to receive the rents and profits, vest no title in them ; but the trust becomes valid as a power, and the land descends subject thereto. By the 13th section, wdiere a trust is created to re- ceive the rents and profits of lands, and no valid direc- tion for accumulation is given, the surplus above what is necessary for the education and support of the per- son beneficially interested, is liable in equity to the creditors of such person, the same as other personal property which cannot be reached by execution at law. By the 14th section, wdien an express trust is created for any purpose not enumerated, and yet which may be lawfully performed under a power, no estate vests in the trustee, but he has a power in trust which may be executed under the provisions of the statute on that subject; and by the 15th sec- tion, the lands descend subject to the execution of such power. By the 16th section, every authorized express trust vests the whole title in the trustee, sub- ject to the execution of the trust ; and the cestui que trust takes no estate in the land ; but may enforce UNDER STATUTE IN WISCONSIN. -^27 the execution of the trust. By the 17th section, he who creates the trust may declare to whom the lands shall go on the failure or determination of the trust ; and he may grant or devise such lands sub- ject to the execution of such trust ; and the grantor's title shall be good as against all except the trustees and those lawfully claiming under them. By the 18th section, it is provided that every estate and interest not embraced in the express trust or other- wise disposed of by the instrument, remains in, or shall revert to the person creating the trust. By the 19th section, cestuis que trust who are to receive the rents and profits of lands cannot assign ; but those who receive a sum in gross can assign, etc. By the 20th section, when a trust is created but not contained in the conveyance to the trustee, it is to be taken as absolute in the trustee, as against subsequent creditors of the trustee, not having notice of the trust, and also purchasers from the trustee without notice and for a valuable consideration. But by the 21st section, where the trust is men- tioned in the conveyance to the trustee, then any conveyance by the trustee in contravention of the trust is absolutely void. By the 24th section, upon the death of a surviving trustee of an express trust, the trust if unexecuted vests in the Circuit Court, with all the powers and duties of the original trustee, and is to be executed by some person appointed for that purpose, under the direction of the court. By the 25th section, a trustee of an express trust, upon petition to the circuit court, may tender his resigna- tion and apply to be discharged from the trust; and 428 TRUSTEES CONSTITUTED BY THE COURT the court may accej^t his resignation and discharge him under such regulations as shall be established by the court for that purpose, and upon such terms as the interest of those interested in the execution of the trust may require. By the 26th section, upon the petition or complaint of any person interested in the execution of an express trust, etc., the circuit court may remove any trustee who shall have vio- lated or threatened to violate his trust, or who shall be insolvent, or whose insolvency shall be appre- hended, or who for any other cause shall be deemed an unsuitable person to execute the trust/ By the 27th section, the circuit court is authorized to ap- point a new trustee in the place of one resigned or removed, and when in consequence of such resigna- tion or removal there remains no acting trustee, the court may appoint new trustees, or cause the trust to be executed by one of its ofiicers under its own direction. The powers in trust referred to are thus defined : By the 24th section of the 85th chapter Revised Statutes, 1858, on Powers, it is provided, that every trust power, unless its execution or non-execution is made expressly to depend upon the will of the grantee, is imperative, and the execution may be enforced by the parties, etc. By the 25th section, the power does not cease to be imperative where the grantee is authorized to select any and exclude others of the persons designated as the objects of the trust. By the 28th section, if the trustee of a power * Geessc v. Beall, 3 Wis. Rep., 367. UNDER STATUTE IN WISCONSIN. 429 with the right of selection, die without making any selection, then all the objects designated are equally entitled. By the 29th section, when a power in trust is created by will and no person is designated to execute it, its execution devolves upon the Circuit Court of the proper county. By the provisions of the 30th section, the provisions of sections 22, 23, 24, 25, 26, and 27, of chapter 84, in relation to express trusts and trustees, are applied to powers in trust and the grantees of such powers. By the Constitution of Wisconsin,^ the judicial power of the state, both as to matters of law and equity, is vested in the Supreme Court, Circuit Court, Courts of Probate, and Justice of the Peace. The legislature are authorized, in the same section, to vest municipal courts with such jurisdiction as they may deem necessary, and also to establish infe- rior courts in the several counties with limited civil and criminal jurisdiction. By the 3d section of the 7th article, the Supreme Court has appellate juris- diction only; but it has power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other original and remedial writs, and to hear and determine the same. Also by the oth section of chap. 115,^ the Supreme Court has powers in addition to those above named, to issue writs of prohibition, error, supersedeas, procedendo, scire facias, and all other writs and processes not specially provided for by statute, which may be necessary to * Art. 7, sec. 2. * Rev. Stat. 1858, p. 639. 430 TRUSTEES CONSTITUTED BY THE COURT enforce the due administration of right and justice throughout the state. And by the 7th section of chapter 115, the Supreme Court is vested with full power and authority to carry into complete execution all its judgments and determinations in the matters above enumerated, and for the exercise of its juris- diction as the supreme judicial tribunal of the state, agreeably to the usages and principles of law. By the 8th section of the 7th article of the Con- stitution, the Circuit Court has original jurisdiction in all matters, civil and criminal, within the state, and not excepted in the Constitution. They also have power to issue writs of habeas corpus, mandamus, in- junction, quo warranto, certiorari, and all other writs necessary to carry into effect their orders, judg- ments, and decrees; and by the 4th section of chap- ter IIG, Revised Statutes 1858, they have jurisdic- tion in all civil actions within their respective cir- cuits ; and the courts in term time, and the Judges thereof in vacation, have power to aw^ard through- out the state, returnable in the proper county, writs of injunction, ne exeat, and all other writs and pro- cess necessary to the due execution of the powers vested in them. The jurisdiction of the county courts extends to the probate of wills, granting let- ters testamentary, of administration and guardian- ship, etc., and special jurisdiction is conferred upon certain county courts, unnecessary to notice for the purposes of this work. From the foresfoino; it will be seen that the Supreme Court and Circuit Courts of Wisconsin have a common law jurisdiction in equity over mat- UNDER STATUTE IN NEW JERSEY. 431 ters of trusts, when, by the provisions of the sta- tute on that subject, that jurisdiction has not been taken away or modified. By the provisions of the 13th section of the 14th article of the Constitution it is provided that such parts of the common law, then in force in the territory of Wisconsin, as was not inconsistent with the Constitution, should con- tinue^ to be a part of the law of the state, until altered or suspended by the legislature. There are few recorded decisions of the Wisconsin courts upon the subjects embraced within the provisions of these statutes ; but the provisions themselves are so simi- lar to the New York statutes that the decisions of the New York courts may be referred to for aid in their construction. New Jersey. — By the Constitution of New Jersey a court of chancery constitutes a branch of the judiciary of that state. ^ This consists of a Chan- cellor who is the Ordinary or Surrogate-General, and Judge of the Prerogative Court. The proceed- ings in matters of trusts and trustees generally would be according to the usages of the common law. By an express provision of the statute,^ when any trustee appointed by last will and testament neglects or refuses to act, or dies before the comple- tion of the trust, the Orphan's Court of the county where the testator resided at the time of his death, is authorized to appoint some suitable person to execute the trust, etc. By the 7th section of the * Art. 6, sec. 4. " Rev. Stat., 1847, tit. 7, chap. 5, sec. 13. 432 TRUSTEES CONSTITUTED BY THE COURT 6th chapter, title 7th, one of the judges of the Orphan's Court, on complaint that a trustee, etc., of a minor's estate is like to prove insolvent, etc., may order him to give security, etc. These are all the special provisions made by statute for the appoint- ment of trustees by the court ; and in the absence of special regulations upon this subject the Court of Chancery would be governed by the usages of the court acting in virtue of its common law jurisdic- tion. Connecticut. — The judicial power of the State of Connecticut is vested in a Supreme Court of errors, a Superior Court, and such inferior courts as the General Assembly shall, from time to time establish ; and their powers and jurisdiction are to be defined by law. By statute it is provided^ that the Superior Court shall have jurisdiction of all suits for relief in equity, etc., and the proceedings shall be according to the rules in equity. Also the County Court has concurrent jurisdiction with the Superior Court in all cases in equity, etc., where the sum does not exceed three hundred and thirty-five dollars, except suits for relief against judgments, and suits pending in the Superior Court.^ And the Supreme Court of errors has jurisdiction final and conclusive, in matters of law and equity, where it is brought by error or com- plaint from the judgment or decree of the Superior Court.^ Assignments to trustees for the benefit of creditors " Stat, of Conn., compiled 1854, tit. 5, chap. 2, sec. 20, p. 266. " Comp. Stat. 1854, tit. 5, chap. 3, sec 33. ' Comp. Stat. 1854, tit. 5, chap. 1, sec. 10, p. 264. UNDER STATUTE IN KENTUCKY. 433 must be in writing, and be for all, in proportion to their respective claims ; and be lodged for record in the probate office, and the time noted thereon by the judge or clerk ; and the record dates from such time. If the trustee or assignee refuses to accept the trust, or neglects to do so, the probate judge appoints . another.^ Where a testator in his will does not provide for the contingency of death, incapacity or refusal of the trustee to accept, the probate judge may appoint ; and where it is not otherwise provided by the Avill, the trustee is required to give bonds for the proper discharge of his duty.^ The same provisions are extended to cases where the trustee appointed dies, or becomes incapable, or resigns, or refuses to act, the probate court appoints a new trustee and takes bond; so also where the trustee has in his hands the avails of any estate sold by him under special authority from the legislature, and he dies, etc. So also, where a trustee from absence, sickness, insanity or other cause shall become incapable, or shall neg lect or refuse to perform the duties of his office, he may be removed on application, and another be appointed by the court.^ In most respects the administration of trusts in Connecticut is under the rules of the common law. Their statutes are in aid of the common law, and change but slightly indeed, if at all, their remedies. Kentucky. — In Kentucky, by the new Constitu- » Comp. Stat. 1854, p. 507. " Idem, p. 490, ' Idem, p. 491. 28 434 TRUSTEES CONSTITUTED BY THE COURT tion/ it is provided that the judicial powers of the state, as to matters of law and equity, shall be vested in one supreme court, to be styled the Court of Appeals, and courts established by the Constitution, and such other courts, inferior to the supreme court, as the General Assembly from time to time shall erect and establish. The constitution establishes a circuit court in each county of the commonwealth ; and the juris- diction^ extends to all matters, both in law and equity, within the county, and it is invested with all necessary power to carry into effect the juris- diction given. By the Code of Practice,^ justices have jurisdiction, exclusive of the circuit court, in all actions for the recovery of money or personal property, w^here the value does not exceed fifty dollars. The circuit court has appellate jurisdiction from the decisions of county courts, among other things, in all cases concerning the probate of wills ; and has appellate jurisdiction from quarterly courts. The quarterly courts are held by the presiding judge of the county,'' and have concurrent jurisdic- tion with the circuit courts in all civil cases where the amount does not exceed one hundred dollars. There is established in each county of the first judicial circuit a court called the Equity and Crim- inal Court, and has jurisdiction in all equity and ' See 4th art., sec. 1, new Constitution, Rev. Stat. I860. » Rev. St. 1860, art. 8, chap. 27 p. 310; see also Sams v. Stockton & Curtis, 14 B. Monr., 233; also Fatten v. Sims, 13 B. Monr., 398. ' See section 29 of the Code. * See Rev. Stat. 18G0, 16th art., chap. 27, sec. 3. UNDER STATUTE IN KENTUCKY. 4cJ5 criminal cases,* like the circuit court. The judge of this equity and criminal court may transfer any civil suit brought in his court, either in law or equity, to the common law court, or to the equity docket of the circuit court.^ The county court takes probate of wills in the county where the tes- tator resides.^ But the court of chancery has juris- diction to establish wills in the proper county.'' In cases of trusts and trustees, there is but little aside from the general jurisdiction of these courts as courts of equity. In their arbitration act, it is pro- vided,^ that any trustee may make a submission touching the estate of the trustee ; and, where the submission is made in good faith, the award shall be binding, and be entered as the judgment or decree of the court ; and the fiduciary shall not be respon- sible for any loss, except it be caused by his own fault or neglect. They have a statute of " Charitable Uses.'"^ Its first section defines the objects of the charity, quite similar to the 43d Elizabeth. Whoever gives land to the general public, for religious purposes, will be regarded in equity during his life, and his heirs after his death, trustee for the purposes contem- ' See Rev. Stat. 1860. chap. 27, sec. 1, p. 343. « See chap. 27, sec 2, p. 358, Rev. Stat. I860. ' Rev. Stat. 1860, chap. 106, sec. 27; see also Barnes v. Edwards, 17 B. Monr., 640. * McCall &c Wife v. Vallandigham, 9 B. Monr., 430, also 640, 641. For original jurisdiction of Chancery to set aside wills, see Hughley v. Sidwell's heirs, 18 B. Monr., 260. * Rev. Stat. 1860, chap. 3, sec. 4. *Rev. St. 1860, chap. 14, sec. 1; see Baptist Church v. Presbyterian Church, 18 B. Monr., 640. 436 TRUSTEES CONSTITUTED BY THE COURT plated. And any person having an interest in the use or the subject of the gift, may sue in equity to have it properly executed/ By the second section of the charity act it is pro- vided that no charity shall be defeated for want of a trustee, or other person in whom the title may vest ; but the court of equity shall uphold the same by appointing trustees, or by taking control of the fund or property and directing its management. In assignments for the benefit of creditors,^ the trustee or assignee is not to proceed to the execution of the trust until he takes an oath in the county court, where the coveyance is properly recorded, and also, in open court, executes a covenant with good security, to be approved by the court, payable to the grantor, to the effect that he will faithfully, and in proper time, discharge the duties of trustee. These are the particular provisions of the statute of Kentucky on the subject of trusts and trustees, so that the doctrines of the common law, as applied in courts of equity, are generally applicable in that state. Arkansas. — By the Constitution of Arkansas the judicial power of the state is vested in a Supreme Court, in Circuit Courts and County Courts, etc., and when thought proper, in a Court of Chancery,^ and, until the General Assembly deems it expedient to establish a court of chancery, the Circuit Courts are ' See Chambers v. Baptist Education Society, 1 B. Monr., 220, and ib., 640, 641. « Rev. Stat., vol. 2, 1860, p. 816. " See Const, of Ark., art. 6, sec. 1; Dig. Stat. 1858, p. 42. UNDER STATUTE IN ARKANSAS. 437 to have jurisdiction in equity/ subject to appeal to the Supreme Court,^ which is to have jurisdiction in equity in cases of appeal from the Circuit Court.^ By statute,* the Circuit Courts in the respective counties where they are held, have exclusive origi- nal jurisdiction as courts of equity, in all cases where adequate relief cannot be had by action at law. By special enactments,^ a separate Court of Chan- cery is to be held at the seat of government by a Chancellor, with equity jurisdiction for the county, similar to that of the Circuit Courts By special enactment,^ lands conveyed by pur- chase to trustees of religious societies, not exceeding forty acres, in trust for the use of such society, either for meeting house, burying ground, camp ground, or residence of preacher, with improvements and appurtenances, descend in perpetual succession. And by statute,'' the state is not to be decreed to be a trustee by the court, because the legislature are » See Const, of Ark., art. 6, sec 6; see also Conway v. Watkins, Adm'r of Boyd, 1 Eng. Rep., 317. * See art. 6, sec. 6; also Colby v. Lawson, 5 Ark. Rep., 303. = See Const., art. 6, sec. 2 and 6; also Dig. Stat., 1858, p. 301; see Wil- liam J. Marr, ex parte, 7 Eng. Rep., 84, 87; ex parte Barber, librarian, etc., 7 Eng. Rep., 155; ex parte Robins, 15 Ark. Rep., 402. * Dig. Stat. 1858, p. 307, sec. 7; see also Rev. Stat., chap. 43, sec 3; see also Dig. Stat., p. 218, sec. 1 and 2; Hempsted & Conway v. Watkins, Adm'r of Byrd, 1 Eng. Rep., 317; Bentley's Ex'rs v. Dillard, 1 Eng., 79; Cummins v. Bentley, 5 Ark. Rep., 9; Andrews v. Tenter, 1 Ark., 186; Dugan V. Cureton, 1 Ark. Rep., 31. " Acts of Jan. 15, 1855, and Jan. 13, 1857; see Session Laws and Dig, Stat. 1858, p. 239. « Dig. Stat., chap. 144, sec. 1 and 2, p. 899. ' Dig. Stat., chap. 166, sec. 7, p. 1044. 438 TRUSTEES CONSTITUTED BY THE COURT competent to do justice. In all other respects, trusts are to be administered according to the principles of equity at common law, as they have no special legislation on the subject. California. — By the Constitution of California the judicial power of the state is vested in the Supreme Court, District Courts, County Courts, and Justices of the Peace.^ The District Courts are invested with original jurisdiction in law and equity in all civil cases, where the amount in dispute, ex- clusive of costs, exceeds two hundred dollars : and the Supreme Court has appellate jurisdiction in all such cases.^ The administration of trusts will be according to the principles of common law, as they have few statutory provisions on the subject. Maine. — The judicial power in Maine is vested in the Supreme Judicial Court and such other courts as the legislature may establish.'^ This court has jurisdiction, among other things, for relief in cases of trusts ; and also to determine the construction of wills ; and whether an executor, not appointed ex- pressly a trustee, becomes such from the provisions of the will ; and in cases of doubt, to determine the mode of executing the trust; and the expediency of making changes and investments of trust pro- perty.* They have a special statute regulating the trustee process, but in most respects trusts are administered as at common law. ' Constitution of Cal., art. 6, sec. 1, see Wood's Dig., p. 33. " See Const. Cal., art. 6, sec. 4 and 6. * Const., art. 6, sec. 1, p. 36, Sev. Stat., 1857. * See Rev. Stat., 1857, chap. 77, sec. 8, p. 468. UNDER STATUTE IN MISSISSIPPI. 439 Mississippi. — By the Constitution the judicial power of the Sttate of Mississippi is vested in one High Court of Errors and Appeals/ Circuit Courts,^ a Su- perior Chancery Court, and Court of Probate. The Superior Chancery Court has full jurisdiction in all matters of equity.^ The legislature may give the circuit court of each county equity jurisdiction in all cases where the amount does not exceed five hundred dollars, etc.^ The Probate Court has juris- diction in all testamentary matters, etc."* By statute^ the chancery court has full jurisdic- tion in all matters of equity, and of all matters prop- erly cognizable in a court of equity. By statute^ the beneficial interest of the cestui que trust is liable to sale on execution. Also all decla- rations or creations of trusts or confidence of or in any lands, tenements, hereditaments, or of slaves, must be made and manifested by deed in writing, signed by the party who creates or declares such trust, or by his last will in writing,' and the estate of the cestui que trust in lands, etc., descends to the heir as real estate, unless otherwise directed by will or deed.^ Bills for relief, in case of trusts not cognizable by * See Cons, Miss., art. 4, sec. 1, Rev. Code 1857, p. 29. « lb., art. 4, sec. 14, Rev. Code 1857, p. 30. ' lb., art. 4, sec. 16, Rev. Code 1857. p. 30. * lb., art. 4, sec. 18. * Rev. Code. 1857, chap. 62, sec. 2, p. 540. * lb., chap. 36, sec. 3, art. 12, p. 308. ^ Rev. Code 1857, chap. 46, art. 5, p. 359; see also Hutch. Code, 605, 610; see Presley v. Rodgers, 24 Cush., 520; Palmer v. Cross, et al., 1 S. & M., 48; Dobbs v. Prewett, 13 S. & M., 431. " Rev. Code 1857, chap. 46, art. 7, p. 360. 440 TRUSTEES CONSTITUTED BY THE COURT courts of common law, and all other cases not other- wise provided for, must be filed within ten years after cause of action accrues, except in cases of disability ; and in such cases, within the like time after disability is removed/ The beneficial estate, where it would have been inheritable had it been a legal estate, is made sub- ject to dower and curtesy.^ In other respects, trusts are administered according to the rules and usages of common law. Missouri. — By the Constitution of Missouri the judicial powers of the state, in matters of law and equity, are vested in a Supreme Court, a Chancellor, in Circuit Courts, etc.^ The jurisdiction of the court of chancery is co-extensive with the state, and has original and appellate jurisdiction in all matters of equity, and a general control over executors, admin- istrators, guardians and minors ; subject, in all cases, to appeal to the supreme court.* The circuit court, likewise, has jurisdiction in matters of equity, sub- ject to appeal to the court of chancery, and to regu- lations, etc., to be prescribed by law; and this juris- diction to be continued until inferior courts of chan- cery are established.^ It is provided by statute^ that where any person * Rev. Code 1857, chap. 57, art. 30, p. 403. « Rev. Code 1857, p. 468. * Cons. Missouri, art. 5, sec. 1, Rev. Stat. 1845, p. 38. * lb., art. 5, sec. 9 and 10, Rev. Stat. 1845, p. 39. ' lb., art. 5, sec. 11, Rev. Stat. 1845, p. 39; see also Rev. Stat., p. 830, sec. 6, parts 5th and 6th. * Rev. Stat., chap. 32, sec. 1, p. 218; see Guest v. Farley, 19 Mo. Rep., 147. UNDER STATUTE IN MISSOURI. 441 or persons stand or be seised, or at any time there- after shall stand or be seised, of and in any lands, teneinents or hereditaments, to the use, confidence or trust of any other person or persons, or of any body politic, by reason of any bargain, sale, feoff- ment, covenant, contract, agreement, will, or other- wise, by any manner of means whatsoever, in every such case, all and every such person or persons, and bodies politic, that have, or hereafter shall have, any such use, confidence or trust, in fee simple, for term of life, or of years, or otherwise, or any use, confidence or trust, in remainder or reversion, shall thenceforth stand and be seised, deemed and ad- judged in lawful seisin, estate and possession of and in the same lands, tenements and hereditaments, with their appurtenances, to all intents, construc- tions and purposes in law, of and in such like estates, as they had, or shall have, in use, confidence or trust, of or in the same; and that the estate, right, title and possession, that was or shall be in such person or persons, that were, or hereafter shall be, seised of any lands, tenements or hereditaments, to the use, confidence or trust of any such person or persons, or of any body politic, be henceforth clearly deemed and adjudged to be in him, her or them, that have, or hereafter shall have, such use, con- fidence or trust, after such quality, manner, form or condition, as they had before in or to the use, con- fidence or trust, that was or shall be in them.^ Deeds of trust for personal property are only * See preceding note. 442 TRUSTEES CONSTITUTED BY THE COURT valid as between tlie parties thereto, unless the possession of the trust property is delivered to, and retained by the trustee, or cestui que trust : or unless the trust deed is acknowledged, proved and recorded in the proper county in which the grantor resides, in the same manner that conveyances of land are required to be.^ All declarations of trusts or confi- dences of any land, tenements or hereditaments, must be manifested and proved by some writing signed by the party who is or shall be by law enabled to declare such trust ; or by his last will in writing :^ and where any conveyance is made of any lands, tenements, or hereditaments, by which a trust or confidence may arise, or result by implication of law, such trust or confidence, shall be of the same force as the same would have been if the act had not been made.^ These are the general provisions of the statute upon the subject of trusts and trustees. Otherwise they are administered according to the rules and usages of courts at common law.* Georgia. — There has been very little innovation by statute in the administration of trusts at common law. It is provided^ that all declarations or crea- * Rev. Stat., chap. 67, sec. 8, p. 528. ' Rev. Stat., chap. 68, sec. 3, p. 529. ' Rgv. Stat., chap. 68, sec. 4, p. 529, 530; see also Truesdale v. Callo way, 6 Mo. Rep., 605; also Stephenson v. Smith, 7 Mo. Rep., 610; Thomp son V. Renoe, 12 Mo. Rep., 157; Paul v. Chouteau, 14 Mo. Rep., 580 Aspinal v. Jones, 17 Mo. Rep., 209; Valle v. Bryan, 19 Mo. Rep., 423 Romkin v. Harper, 23 Mo. Rep., 579; Dunniea v. Coy, 24 Mo. Rep., 579 Kelley v. Johnson, 28 Mo. Rep., 249; Cloud v. Ivie, 28 Mo. Rep., 578. * The appointment of trustees may be shown by parol, Gilbert v. Boyd, 25 Mo. Rep., 27. " Hotchkiss' Stat., p. 409, sec. 2, art. 33; Cobb's Dig., p. 1128. UNDER STATUTE IN VERMONT. 443 tions of trust or confidences of any lands, tenements or hereditaments, shall be manifested and proved by some instrument in writing, signed by the party who is by law enabled to declare the trust, or by his last will in writing.^ But trusts which arise by implication or construction of law are excepted out of the operation of the statute.^ Also grants and assignments of trusts and confidences must be in writing, signed by the party granting or assigning the same, or by such last will or devise.^ The estate of the beneficiary is liable at law, for the debts of the cestui que trust, and at the death of the .cestui que trust, the estate descends to his heir, and becomes assets, and the heir is liable to the extent thereof, for the debts of the cestui que trusts The power of the court over the appointment of trustees is left as at common law ; and so likewise is the general administration.^ Vermont. — Trusts are administered mostly accord- ing to the rules and usages at common law. By Kevised Statutes of 1839, trustees appointed by will are to give bond unless the testator direct other- wise f and if the trustee or trustees neglect or re- fuse to do so, it is to be deemed a refusal to accept.'^ ' See preceding note. " Hotchkiss' Stat., p. 409, sec. 2, art. 34; Cobb's Dig., 1128. ' lb., sec. 2, art. 35; Cobb's Dig., 1128. * lb., p. 410, sec. 2, art. 36 aud 37; Cobb's Dig., 1128. * See Phillips v. Hines, 33 Georgia, 163. How far the common law con- sidered in force in Georgia, see Vicksburgh & Jackson Railroad Co. v. Patton, 31 Miss., 156; Green v. Weller, et ah, 32 Georgia, 654. « See Rev. Statutes 1839, tit. 12, chap. 55, sec. 1. '' Sec 4 of the above named act. 444 TRUSTEES CONSTITUTED BY THE COURT A trustee also may resign when the Probate Court thinks proper to permit it : and, when the trustee becomes insane, or otherwise incapable of discharg- ing the duties pertaining to the trust, or unsuitable for the same, on notice, the Probate Court may re- move him. And where the trustee dies, resigns, declines the trust, or is removed before the trust is fully executed, or the object accomplished for which he was appointed, and no provision is made by the will or deed for the appointment of a successor, the Probate Court, after due notice, may appoint a trus- tee or trustees to act instead thereof/ The trustees thus appointed are to have the same powers as the original trustees, etc., and the trust estate vests in them, and the court has power to make all necessary orders.^ The courts have a common law jurisdic- tion in matters of equity except so far as modified by statute. Iowa. — By the Constitution of Iowa the judicial power of the state is- vested in a Supreme Court, District Court, and such other courts as may be established by the General Assembly.^ The Supreme Court has appellate jurisdiction only in chancery cases ; but the district courts have origi- nal jurisdiction both in law and equity,^ and they are to be distinct and separate in their adminis- trations. Declarations and creations of trusts or ^ See sections 5, 6 and 7 of tit., ut supra. ' See also 8th sec. of tit. and chap., ut supra. ' Constitution, art. 5, sec. 1, Rev. Stat. 1860, p. 997. * See Cons., art. 5, sec. 4 and 6; see also Rev. Stat., p. 860 and 467, sec. 2663. UNDER STATUTE IN INDIANA. 445 powers in relation to real estate must be executed in the same manner as deeds of conveyance.^ But such provision does not apply to estates or trusts created or resulting by operation and construction of law.^ Deeds of trust of real or personal property may be executed as securities for the performance of contracts, and sales made in accordance with their terms are valid. Or they may be treated like mort- gages, and be foreclosed by action in the District Court. But no deed of trust or mortgage, with power of sale, on real estate, made after the first day of April, 1861, for security for the payment of money, shall be foreclosed in any other manner than by proceeding in the district, state, or federal courts.^ Courts of equity in this state exercise a common law jurisdiction in cases of trusts for charitable purposes."* And the above seem to be all the special provisions made by statute causing the administra- tion in cases of trusts to differ in any degree from that at common law. Indiana. — The judicial power of the state is vested in a Supreme Court and Circuit Courts, and such other inferior courts as may be established by » See Rev. Stat. 1860, p. 390, sec 2213. " Rev. Stat. 1860, ut supra; see Mclntire v. Skinner, 4 Iowa, 89; Olive V. Dougherty, 3 Iowa, 371; Brace v. Reid, ib., 422. » 5 Rev. Stat. 1860, p. 653, sec. 3673. That part of the clause regula- ting the foreclosure of deeds of trust, etc., with power of sale on real estate, took effect July 4, 1860; see also sec. 3674, p. 653. * See at length Miller v. Chittenden, et al., 4 Clark, (Iowa), 252; also, Johnson et al., Mayne et al, ib., 180, 446 TRUSTEES CONSTITUTED BY THE COURT the General Assembly.^ The circuit courts have jurisdiction in all civil cases or actions where the amount involved is one thousand dollars and upwards, and concurrent jurisdiction with the com- mon pleas courts in certain specified cases where the amount is less.^ The Court of Common Pleas has exclusive jurisdiction in all matters relating to the probate of wills and testaments, granting of letters testamentary, of administration and guar- dianship, of all matters relating to the settlement and distribution of the estates of decedents, and the personal estates of minors ; all actions against executors and administrators ; to authorize guar- dians to sell and convey the real estate of their wards, and the appointment of guardians of persons of unsound mind ; the examination and allowance of the accounts of executors and administrators, and of the guardians of minors, except in special cases, etc., where concurrent jurisdiction may be given to other courts.^ It is also provided that trustees of express trusts may sue without joining with them the person for whose benefit the suit is brought ; and a trustee of an express trust, within the meaning of the statute, is defined to be any per- son with whom or in whose name a contract is made for the benefit of another} It is provided by statute, that no trusts concerning lands, except such as may arise by implication of law, shall be created, unless in ' Const., art. 7, sec 1, p. 59, Rev. Stat. 1852. " Rev. Stat. 1852, 2d vol., p. 6, sec. 5; see also p. 17, sec. 4, 5, 6 and 7. * Rev. Stat. 1852, 2d vol., p. 17, sec. 4; see also sec. 5 and 8. * Rev. Stat, 1852, 2d vol., p. 27, sec. 4. UNDER STATUTE IN INDIANA. 447 writing, signed by the party creating the same, or by his attorney, lawfully authorized, etc/ Where the trust is recorded in the proper county, it is deemed to be notice to every person ; and a person beneficially interested in a trust for the receipt of rents and profits of land cannot dispose of his inte- rest unless authorized by the instrument creating the trust. But if the trust be for a sum in gross, then the interest is assignable.'' Every sale or con- veyance or other act of the trustee in contraven- tion of the trust is void.^ Purchases made by one and consideration paid by another, raise no result- ing trust in favor of the one paying the considera- tion money, except as to creditors, etc. The pro- visions of the statute in this respect are like those of New York."* Where money is paid in good faith to a trustee who is authorized to receive it, the payer is not responsible for the proper application of it, nor shall his right and title thereby acquired, be called in question.^ Upon the death of a sole or surviving trustee of an express trust, the trust vests in the court, and they appoint a successor, in whom the trust vests, and the court may accept the resigna- tion of a trustee upon petition made, and discharge ^Rev. Stat. 1852, vol. 1, p. 501, chap. 113, sec 1; see also Elliott tj. Armstrong, 2 Blackf., 198. Resulting trusts may be proved by parol; see Jennison, et al., v. Graves, et ah, 2 Blackf., 440; Blair v. Bass, 4 Blackf., 639. * Rev. Stat. 1852, vol. 1, chap. 113, sec. 4. ' Rev. Stat. 1852, vol. 1, chap. 113, sec. 5. * Rev. Stat., ut supra, sec. 6, 7 and 8; see ante p. 31, 32. * Ut supra, sec. 9. 448 TRUSTEES CONSTITUTED BY THE COURT him from the trust upon such terms as justice requires/ So also, where trustees of an express trust have violated or attempted to violate their trust ; or have become insolvent; or of whose solvency, or the solvency of their sureties, there is reasonable doubt ; or for other cause in the discretion of the court having jurisdiction, they may, on petition of any person interested, after hearing, be removed by the court ; and the vacancies thus accruing in express trusteeship may be filled by such court.^ \yhen there is a conveyance or devise to a trustee whose title is merely nominal, and who has no power of disposition or management of the lands, the trustee takes no title, but the use is executed in the benefi- ciary.^ Delaware. — A Court of Chancery is created by the Constitution which is to be invested with all the jurisdiction and powers of a chancery court, by the laws of the state.* By statute^ the Court of Chan- cery is invested with full power to hear and decree all matters and causes in equity ; and the proceed- ings are to be, as heretofore, by bill, answer and other pleadings ; and the chancellor has power to issue subpoenas and all other process to compel defendants to answer suits there, to award commis- sions for taking answers and examining witnesses, * Rev. Stat. 1852, vol. 1, chap. 113, sec. 10 and 11. ■■' Ut supra, sec. 12. ' Ut supra, sec. 13. * Constitution of Delaware, art. 6, sec. 5. ' See Revised Code of 1852, chap. 95, sec. 1, p. 320. UNDER STATUTE IN FLORIDA. 449 to grant injunctions for staying suits at law, and to prevent waste as there may be occasion, according to the course of chancery practice in England, with power to make orders and award process, and do all things necessary to bring causes to hearing, and to enforce obedience to decrees in equity, by imprison- ment of the body or sequestration of the land. There appear to be no special provisions by statute regulating the administration of trust estates,- and hence they are left as at common law. By the 14th section of the chancery act,^ the Court of Chancery can order or direct that the wood growing on lands given to charity, shall be cut and sold, and the proceeds applied to repairing or improving the estate, etc. Florida. — The Circuit Court as a chancery court, is always to be open for the issuing and returning of process, making, hearing and deciding motions, presenting, arguing and deciding upon petitions, granting injunctions, and passing interlocutory orders and decrees.^ The statute provides that the rules of practice in the courts of equity of the United States, as prescribed by the Supreme Court thereof, under the act of Congress of 8th May, 1792, where provision is not made by their chan- cery act, shall be the rules of practice of the courts of that state, when exercising equity jurisdiction. And when the rules of practice, so directed by the * See Revised Code of 1852, chap. 95, sec. 14. "Thompson's Digest of the Laws of Florida, p. 450, sec. 1; see Act Nov. 7, 1828, sec. 7, Duval, 130. 29 450 TRUSTEES CONSTITUTED BY THE COURT Supreme Court of the United States and the provi- sions of their chancery act do not apply, then the practice of the court shall be regulated by the prac- tice of the high Court of Chancery in England/ All declarations or creations of trusts and confi- dences, etc., of real estate must be manifested and proved by some writing, signed by the party author- ized to declare or create the trust, etc., excepting, however, from its operation, such trusts as are raised by operation and construction of law ; and such grants or conveyances, etc., of trusts, etc., in lands, etc., must be by deed, sealed and delivered in the presence of two witnesses, by the party, etc., or his attorney, or by last will and testament.^ In other respects the administration of trusts is as at com- mon law. North Carolina. — Each superior court of law is also invested with chancery jurisdiction within the county, and possesses all the power and authority as a court of chancery, which the colonial court had under the laws of England : that is, a common law jurisdiction/^ No deed of trust for real or personal estate is valid as against creditors or purchasers for a valu- able consideration, but from the time of registra- tion. The register is to endorse on the deed the day on which it was presented and delivered to him ' Thompson's Digest of the Laws of Florida, p. 459, sec. 11; see Act Nov. 7, 1828, sec. 32, Duval, 137. ^ Ut supra, p. 178, sec. 2 and 3; see Act Nov. 15, 1828, sec. 3, Duval, 203. * Rev. Code of North Carolina, 1855, p. 187, sec. 1. IJTJDER STATUTE IN OHIO. 451 for registration.^ Infant trustees are to convey under the direction or order of the court.'^ The interest of the beneficiary is liable to sale on exe- cution,^ and the purchaser holds discharged of the trust.^ In other respects the administration of trusts is according to the principles and usages at common law. Ohio. — In Ohio, the nominal distinction between courts of law and equity has been abolished, and the term " civil action," embraces proceedings as well in equity as at law." Remedies in equity are still administered according to the usages of courts of equity, and trusts are administered accordingly.^ The statutes of Ohio have left the subject matter of trusts where the common law has left it. In a few things it directs the action of the court. Whenever it apppears to the court that a party to a suit is an idiot, lunatic or insane, and that no legal guardian is acting : or where the interests of the guardian are adverse, the court shall imme- diately appoint some suitable person to appear as trustee in his behalf, etc.^ So also in cases of assignments for the benefit of creditors, the statute provides that all stich assignments, made by debtors to trustees, in contemplation of insolvency, with ' Revised Code of North Carolina, 1855, p. 245, sec. 22. " Ut supra, p. 246, sec. 27. ^ Ut supra, p. 275, sec. 4. * Swan's Rev. Stat., Ohio, p. 625. ■* See Miller and wife v. Stokeley, et al., where the question was whether a trust was proved by the deed being absolute upon its face, 5 Ohio (N. S.), 194. ^ Ut supra, p. 261, sec. 7. 452 TRUSTEES CONSTITUTED BY THE COURT the design to prefer one or more creditors, to the exclusion of others, shall enure to the benefit of all the creditors, in proportion to their respective demands ; and such trust shall be subject to the control of the court, which may require security of the trustees for the faithful execution of the trusts ; or may remove them and appoint others, as justice may require.^ In case of trusts created by will, the statute pro- vides,^ that when two or more trustees are appointed by will to execute a trust, and one or more of them die, the survivors may execute the trust, unless the terms of the will express a contrary intention; and if such will has made no provision for the con- tingency of the death, incapacity or refusal of such trustee or trustees to accept or execute the trust, the court having probate of said will, may appoint some suitable person or persons to execute the trust, according to the will, and such person so appointed must give bonds with surety.^ Where a trust relating to lands situated in Ohio, is created by will, made out of the state, and such will has been duly admitted to record in Ohio, if a trustee has been appointed by such will he may execute the trust upon giving bonds to the state of Ohio in such sums, and with such sureties as shall be approved by the probate court of the county in which any part of such lands are situate, condi- tioned to discharge with fidelity the trusts reposed ' Swan's Rev. Stat. Ohio, p. 468, sec. 1, (69); passed March 14, 1853; see 51st vol. Stat., 463. "^ Swan's R. S. Ohio, p. 1034, sec. 66 and 67; see also sec. 69. UNDER STATUTE IN OHIO. 453 in him. Bonds, however, will not be required if the testator desire that they may not be, unless from a change in circumstances, the court of pro- bate shall think proper to require it.^ So likewise if a trustee has been appointed by a foreign court, according to the laws of its jurisdic- tion, he may execute the trust by producing an authenticated record of his appointment to execute such office of trustee, and by giving bond and surety as before mentioned.^ So likewise the Court of Common Pleas of the county in which the property affected by the trust is situated, may, when necessary, on application by petition of the parties interested, appoint a trustee to carry into effect a trust created by a foreign will ; which trustee must enter into bonds, as above directed, before entering upon the discharge of his duties as trustee.^ It is made the duty of the Attorney General to cause proper suits to be instituted at law and in chancery to enforce the performance of trusts for charitable and educational purposes, and to restrain the abuse thereof, either upon the complaint of others, or from his own knowledge, or under the direction of the Governor, the Supreme Court, or either house of the General Assembly ; suits to be brought in his own name upon behalf of the state, either in the Court of Common Pleas of Franklin county, or the court of common pleas of any county ' Swan's R. Stat., p. 1034, sec. 68, 69. ' Ut supra, p. 1034, sec. 70. ' Ut supra, p. 1034, sec. 71. 454 TRUSTEES CONSTITUTED BY THE COURT where the trust property is situated.^ In all other respects, save some special directions in regard to administrators and executors, guardians of minors, etc., the administration of trusts is left to the rules and usages of the common law. Texas. — By the Constitution of Texas, the judicial power of the state is vested in a Supreme Court, district courts, and such other inferior courts as the legislature may establish.^ The district courts have original jurisdiction in all matters of divorce, and in all suits, complaints and pleas whatever, without regard to any distinction between law and equity, etc.^ Under this provision of the constitution it has been held, that the district courts have all the jurisdiction known to the common law and chan- cery courts of England, not incompatible with the constitution of the United States and of Texas, and the laws under them.^ There are no special provi- sions of the statute affecting the manner of creating, executing, or administering trusts, and therefore they are left as at common law. Tennessee. — The judicial power of the state is vested in a Supreme Court, and such inferior courts as the legislature may establish ;^ and among other * Swan's Rev. Stat., p. 51 and 52, sec. 14; see Ilullraan, et al. v. Hon- comp, et al., 5 Ohio. (N. S.), 237. 2 Oldham & AVhite's Dig. Laws of Texas, p. 18, 19; Const., art. 4, sec. 1. ^ O. & W. Dig., etc., p. 19, Const., art. 4, sec. 10; and as to the com- mon law jurisdiction in equity under the 10th section, see Newson v. Chris- man, 9 Tex. Rep., 113; see also Johnson v. Happell, 4 Tex. Rep., 96; Love, et al. v. Mclntyre, 3 Tex. Rep., 10. * See Newson v. Chrisman, 9 Tex. Rep., 113. ' See Cons. Ten., art. 6, sec. 1, Meigs & Cooper's Code of Ten., 1858, p. 42. UNDER STATUTE IN TENNESSEE. 455 courts the legislature have established a Court of Chancery, with exclusive original jurisdiction of all cases of an equitable nature, where the demand ex- ceeds fifty dollars.^ Trustees or assignees to whom property is assigned for the benefit of creditors, etc., if exceeding the value of five hundred dollars, before entering upon the discharge of their duties, are to give bonds with two or more good sureties, in an amount equal to the amount or value of the property mentioned in the deed of assignment, pay- able to the state of Tennessee, conditioned for the faithful performance of all the duties, etc. : and also to take and subscribe an oath before the clerk of the county, that he wall honestly and faithfully execute and perform his duties, etc., that he will make a full, true and perfect inventory of all property con- tained in the deed, or that may come to his hands or the hands of others, etc., for him ; and that he will return and file in the office of the clerk a full and true account of all sales of said property, and of all moneys and securities taken.^ And if any trustee or assignee fail or refuse to comply with these provisions, the County Court, upon applica- tion of any person interested, is to appoint a trustee or receiver, who, upon complying with such re- quirements, may execute the trust.^ It is also provided that any trustee appointed by deed or will may resign his office, by mere motion in open court, by and with the assent of the bene- ' Meigs & Cooper, etc., p. 769, art. 4279 and 4280. « Ut supra, p. 402, art. 1974. ' Ut supra, art. 1977. 456 TRUSTEES CONSTITUTED BY THE COURT ficiaries under the trust, or he may resign by peti- tion in writing, presented to the court, stating the facts of the trusteeship, condition and character of the property, the state of his accounts, and offering to pass his accounts and deliver up the property ; and, if, after due notice to the beneficiaries, etc., the court is satisfied that it is right and proper to per- mit the resignation, he may be discharged/ So also a trustee may be removed by the court, upon mere motion, where he is present in person, or by counsel, and offers no sufficient objection r and he may be removed, upon application by peti- tion by any one or more of the beneficiaries, when he fails or refuses to act as trustee ; when he has violated or threatened to violate his trust ; where he has removed from the state ; when he is insolvent, and there is reason to fear loss on that account, or for any other good cause.^ And in case of such resignation, removal or refusal, or failure to act as such trustee, the court of chancery of the district, or circuit court of the county where the trustee resides, may appoint another in his stead, taking bond with sureties, etc.* Also upon the death of a trustee a new trustee may always be appointed on application of the beneficiaries, etc.,^ and the court shall divest and vest title in the property, and » Meigs & Cooper, etc, p. 408, art. 1979, and p. 663; art. 3650. 3651, 8652, 3654, and also p. 403, art. 1980. ' Ut supra, p. 664, art. 3655. ' Ut supra, p. 664, art. 3656. * Ut supra, p. 403, art. 1980; also art. 3661, p. 664. » Ut supra, p. 664, art. 3663. UNDER STATUTE IN VIRGINIA. 457 enforce the delivery thereof to the new trustees, etc.' Virginia.— The judicial power of Virginia, by her Constitution, is vested in a Supreme Court of Appeals, and such superior courts as the legislature may establish, etc' They have a court of chancery as a side of the superior court, where matters in equity are determined. Every deed of trust, con- veying real estate, or goods and chattels, etc., must be duly recorded, or it will be void as to creditors or subsequent purchasers for a valuable considera- tion, without notice.' Estates vested in persons by way of trust, are not to escheat to the state by rea- son of the alienage of the trustee. But equitable interests will escheat the same as legal, that is, so far as it would if the person holding the equitable estate, had the legal title.* Trust estates are liable for the debts of the cestui que trust, the same as if he held the legal estate.' So likewise for curtesy and dower.^ By a general provision of the statute, a court of equity in any suit in which it is proper to decree or order the execution of any deed or writing, may appoint a commissioner to execute the same ; and » Meigs & Cooper, etc., p. 664, art. 3662. ' Cons. Virginia, art. 5, sec. 1 ; see Rev. Code, 1849, p. 43. » Rev. Code, 1849, p. 508, sec. 5; see also 1 Rand., 102; 4 Leigh, 266, 349; 5 Leigh, 520, 182; 10 Leigh, 597; 2 Gratt., 182; Cliristian v. Yaun- cey, 2P. &H.,240. * Ut supra, p. 493, sec. 26; see also 5 Munf., 117, 160; 6 Muuf., 305; 3 Leigh. 492. " Ut supra, p. 502, sec. 16; see also 2 Leigh, 280. « Ut supra, p. 502, sec 17; see 1 H. & M., 92; 3 H. & M., 321; 1 Rand., 344; 12 Leigh, 265. 458 TRUSTEES CONSTITUTED BY THE COURT the execution thereof is valid to pass, release or extinguish the right, title and interest of the party on whose behalf it was executed, etc.^ Also, in a suit in equity, in which it appears a trustee has died, although his heirs be not parties, yet if his personal representatives and other persons inte- rested be parties, the court may appoint another trustee in the place of the one who has died, to act either alone or in conjunction with any surviving trustee." And the statute further,^ provides, that the personal representatives of a sole or surviving trustee shall execute the trust, or so much thereof as remains unexecuted at the death of such trustee, whether the subject of the trust be real or personal estate; unless the instrument creating the trust, direct otherwise, or some other trustee has been appointed by a court of chancery having jurisdic- tion. "Where any personal estate is vested in a resident trustee, and the cestuis que trust are non-residents, the court may, on petition or by bill in equity filed for that purpose, order the trustee, if living, or his personal representatives, to pay, transfer, or deliver the estate, etc., to the foreign trustee; or if the court think proper it may order the property to be sold or any part of it, and the proceeds to be paid over, etc.* If a trustee of any real estate thinks the interest » Rev. Code, 1849, p. 675, sec. 4. " Ut supra, p. 675, sec. 5; 2 H. & M., 11 and 12; 4 Rand., 164. " Ut supra, p. 675, sec. 6; 11 Leigh, 342; Nixson v. Rose, 12 Gratt., 425. * Ut supra, p. 639, sec. 4 and 5. UNDER STATUTE IN VIRGINIA. 459 of the beneficiary requires the estate to be sold, he may apply to the court by bill, setting forth the facts, etc., and if the court are satisfied that the interests of the beneficiary will be promoted, and the rights of no one be sacrificed thereby, they may order a sale ; but the trustee must not be a pur- chaser at the sale, either directly or indirectly.' Their statute of uses and trusts is in these words : "By deed of bargain and sale, or by deeds of lease and release, or by covenant to stand seised to the use, or deed operating by way of covenant to stand seised to the use, the possession of the bar- gainor or covenantor shall be deemed transferred to the bargainee, releasee or person entitled to the use, for the estate or interest which such person has in the use, as perfectly as if the bargainee, releasee or person entitled to the use had been enfeofted with livery of seisin of the land intended to be con- veyed by such deed or covenant."'^ There are also special provisions declaring legal and valid all conveyances of land since 1777, or which shall thereafter be made, for the use and benefit of any religious congregation as a place of public worship, burial place, or residence for a min- ister ; and they are to be held only for such pur- poses, and the court may appoint trustees either when there are none, or in place of former trustees, on proper application of the proper authorities, etc,=^ * Rev. Code, p. 535, sec. 2, 3, 4, 5 and 6. « Ut supra, p. 502, sec. 14; see also post, Estate of Trustees. 8 Ut supra, p. 362, sec. 8 and 9. 460 TKUSTEES CONSTITUTED BY THE COURT Lands also may be conveyed to trustees for the use of Free Masons, Odd Fellows, or other benevo- lent associations ; and where they have been so con- veyed with or without the intervention of trustees since the 31st of March, 1848, or shall after that be thus conveyed, they are to have the benefit of the ninth and eleventh sections of the act, provid- ing for the appointment of trustees by the court,* and authorizing the trustees to sue for, in their own names, and recover the land or property, etc.^ Trustees are required to make yearly statements of the state of their accounts, and, together with proper vouchers, lay them before a commissioner of the court of chancery of the county or corporation wherein the instrument creating the trust was first recorded.^ Minnesota. — The judicial power of the state is vested in a Supreme Court, District Courts, Courts of Probate, etc. The Supreme Court has appellate jurisdiction in all cases, both in law and equity, and the district courts have original jurisdiction in all civil cases in law and equity.* All equity and chancery jurisdiction of the state is exercised in all respects by the like processes, etc., as are civil pro- ceedings, and they are denominated civil actions ; and suits, applications and proceedings, commenced, prosecuted and conducted in chancery or enforced * See preceding note. ' Ut supra, p. 363, sec. 11 and 14. ' Ut supra, p. 548, sec. 7. ' See Cons. Min., Comp. Stat. 1849 to 1858, by S. & H., p. 53, art. 6, sec. 1, 2 and 5. UNDER STATUTE IN MINNESOTA. 461 in chancery jurisdiction, including the foreclosure and satisfaction of mortgages, are to be conducted, etc., to final decision and judgment by the like pro- cesses, pleadings, trial and proceedings, as in civil actions/ Uses and trusts, except as authorized by statute, are abolished, and all estates and interests in land are declared to be legal estates, cognizable as such in courts of law, except where otherwise provided by statute;^ also every estate held as a use, is declared to be a confirmed legal estate, and every person, who, by virtue of any grant or assignment, is, or shall be entitled to the actual possession of lands, and the receipt of the rents and profits thereof in law or equity, are deemed to have legal estates to the same extent, etc.^ But the estate of an exist- ing trustee, where his title is not merely nominal, but is connected with some power of disposition and management of the trust property, is excepted out of the operation of the statute ; but all future dispositions of land in trust, except as provided for by statute, are to vest in the trustee no legal or equitable estate.* These provisions, however, are not to extend to those trusts which arise by im,pli- cation or construction of law. The express trusts authorized by statute are : 1. To sell lands for the benefit of creditors. 2. To sell, mortgage or lease lands, for the benefit of legatees, ' Compiled Statutes, 1849 to 1858, by S. & H. "^ Ut supra, p. 382, sec. 1, " Ut supra, p. 382, sec. 2 and 3. * Ut supra, sec. 5. p. 480. ''A Bi 462 TRUSTEES CONSTITUTED BY THE COURT or for the purpose of satisfying any charge thereon. 3. To receive the rents and profits of lands, and apply them to the use of any person during the life of such person, or for any shorter term, subject to rules prescribed in the chapter on the estates in real pro- perty. 4. To receive the rents and profits of lands, and to accumulate the same for the benefit of any married woman, or for either of the purposes, and within the limits prescribed in said chapter on estates in real property. 5. For the beneficial interest of any person or persons, when such trust is fully expressed and clearly defined upon the face of the instrument creating it, subject to the limitations as to time, prescribed in the chapter on trusts, etc.^ When an express trust is created for any purpose not enumerated above, no estate vests in the trustee ; but if it directs or authorizes that which may be lawfully performed under a power, it is valid as a power in trust.^ Persons beneficially interested in a trust for the receipt of rents and profits, etc., cannot dispose of their interest unless it be for a sum in gross. Where the trust created is not mentioned in the instrument making the conveyance, the conveyance is absolute as against the subsequent creditors of the trustee, having no notice of the trust, and also as against purchasers without notice and for a valuable consideration ; but when the trust is expressed in * Comp. Stat. Min., by S. & H., 1849 to 1858. p. 382, sec. 11. ' Ut supra, p. 383, sec. 14. lu other respects, and as to powers in trust, see New York, in this chapter. UNDER STATUTE IN MINNESOTA. 463 the instrument, all such conveyances in contraven- tion of the trust to be absolutely void.^ When the purposes for which an express trust has been created cease, the estate of the trustee ceases ; and upon the death of a surviving trustee the trust does not descend to the heir or pass to the personal representative, but devolves upon the Court of Chancery, with all the powers and duties of the original trustees; and is to be executed by some person appointed by the court and under its direc- tion.^ A trustee also may resign, and, upon peti- tion, the Court of Chancery may accept his resig- nation and discharge him from the trust, upon such terms as the rights and interests of the person interested in the execution of the trust may require. And the Court of Chancery, upon the petition or bill of any person interested in the execution of an express trust, and under such regulations as shall be established by the court for that purpose, may remove any trustee who shall have violated or threatened to violate his trust; or who shall be insolvent, or whose insolvency shall be apprehended ; or who, for any other cause, shall be deemed an unsuitable person to execute the trust. And the Court of Chancery has full power to appoint a new trustee in the place of a trustee resigned or removed ; and when in consequence of such resignation or removal, there shall be no acting trustee, the court may, in its discretion, appoint new trustees, or ' Comp. Stat. Min., by S. & H., 1849-1858, p. 384, sec. 20, 21 and 22. • « Ut supra, p. 384, sec. 24. 464 TRUSTEES CONSTITUTED BY THE COURT cause the trust to be executed by one of its officers, under its direction,^ The court also have power to appoint a trustee to receive money to be paid to a woman upon a decree for a divorce, in trust to be invested for her support or for the support of herself and minor children." Alabama. — By the Constitution of Alabama, the Circuit Courts, or the Judges thereof are vested with equity jurisdiction, until the General Assembly shall establish a court of chancery with original and appellate equity jurisdiction.^ By statute a Court of Chancery is established and fully invested with equity jurisdiction and powers, etc.* Upon the subject of uses, etc., it is declared that no use, trust or confidence can be declared of any land, or of any charge upon the same, for the mere benefit of third persons ; and all assurances declar- ing any such use, trust or confidence, must be held and taken to vest the legal estate in the person or persons for whom the same is declared, and no estate vests in the trustee. But it is provided that nothing in the above section contained shall pre- vent the conveyance of real or personal proj)erty, or the issues, rents and profits thereof, to another, in trust for the use of the grantor, or of a third per- son, or his family, or for any other lawful purpose ; but in such case the legal title vests in the trustee.^ ^ Comp. Stat. Min., by S. & H., 1859-1858, p. 384, sec. 25, 26 and 27. * Ut supra, p. 465, sec. 22. ^ See Constitution, art. 5, sec. 8, Code 1852. * Code of 1852, p. 170. "* Code, ut supra, p. 283 and 284, art. 1306, 1307. UNDER STATUTE m ALABAMA. 465 No trusts of estates for the purpose of accumu- lation only can have any force or effect for a longer term than ten years, unless when for the benefit of a minor in being at the date of the conveyance, or, if by will, at the death of the testator ; in which case the trust may extend to the termination of such minority/ Neither can trusts concerning lands, except such as arise by implication or construction of law, or those which may be transferred or extinguished by operation of law, be created, unless by instrument in writing, signed by the party creating or declar- ing the same, or his agent or attorney lawfully authorized thereunto in writing.^ And no such trust, whether by legal implication or created and declared by the parties, shall defeat the title of creditors, or purchasers for a valuable consideration, without notice. But in case the instrument crea- ting or declaring the trust is recorded in the county where the lands lie, it is deemed to be equivalent to actual notice to all persons.^ The trust is not to descend to the heir or per- sonal representative, in case of the death of the sole or surviving trustee.* In the case of a trustee of a power, with the right of selection among a certain class of objects, if he die without making the selection, equity will decree it to be for the equal benefit of all of the class; and also where » Code of 1852, p. 284, art. 1310. » Ut supra, p. 285, art, 1320. ^ Ut supra, p. 285, art. 1321 and 1322. * Ut supra, p. 285, art. 1323. > 30 466 TRUSTEES CONSTITUTED BY THE COURT the disposition under an appointment or power is directed to be made to or among the children of any person, without restricting it to any particular chil- dren, it may be exercised in favor of the grand- children, or other descendants of such person/ Where a power is vested in several, and one or more of them dies before the execution of it, it may be executed by the survivor. Every special and bene- ficial power is liable in equity to the claims of credi- tors, and the execution of it may be decreed for their benefit.^ The circuit court has power to remove the trus- tee of an express trust created by will or deed, upon the application of any party interested in the trust property, when such trustee has violated or threat- ened to violate his trust, is insolvent or has removed from the state. And when the trustee is removed, the court may appoint another, and require of him a bond, if necessary to protect the interest of the parties.^ When an express trust is created by will or deed, the trustee may resign on application to the register of the district where the trust property, or the most valuable portion of it, is; or in the dis- trict where the trustee resided when appointed trustee, and the register may accept the resignation and appoint another ; or if such trustee die, the register, on application of a party interested, may appoint another trustee.'* » Code of 1852, p. 285, art. 1335 and 1837. * Ut supra, p. 287. art. 1340 and 1341. * Ut supra, p. 496, art. 2725 and 2732. * Ut supra, p. 534, art. 2991, 2995 and 2996. UNDER STATUTE IN RHODE ISLAND. 467 Upon the petition or bill of any person interested in the execution of a trust, the Court of Chancery may remove any trustee who has violated or threat- ened to violate his trust ; or who is insolvent, or whose insolvency is apprehended ; or who has removed from the state, or who for any other cause is deemed an unsuitable person to execute the trust ; or the court may require such bonds as will effectually protect the interest of the parties. And the court may appoint a new trustee in the place of a trustee thus removed, or may cause the trust to be executed by one of its own officers.^ Rhode Island. — The judicial power of the state is vested in a Supreme Court, and such inferior courts as the legislature may establish ; but equity juris- diction is vested exclusively in the Supreme Court. It is enacted that the Supreme Court shall have exclusive cognizance and jurisdiction of all suits and proceedings whatsoever in equity, with full power to make and enforce all orders and decrees therein, and to issue all process therefor, according to the course of equity.'^ It is provided that the Supreme Court, upon peti- tion in equity by any married woman, filed through her next friend, may appoint a trustee of her pro- perty empowered to sue for, in his own name as trustee, and recover and hold to the use of the woman during coverture, such property ; and the ' Code of 1852, p. 534, art, 2999 and 3000. « See Const, of R. I., Rev. Stat. 1857, p. 30, 33, 388, sec. 8. 468 TRUSTEES CONSTITUTED BY THE COURT court has power to remove such trustee and appoint another in his stead, as in cases of other trusts/ The Supreme Court may at all times call any assif^nee of an insolvent debtor to an account; and, at their discretion, discharge him and appoint others in his place .'•^ In case of voluntary assign- ments, the court has power to remove, etc., upon the application of the majority of the creditors in interest, and for cause shown.^ Trusts are left to be administered in equity, according to the usages of courts of equity in that respect."* New Hampshire. — The Superior Court of judica- ture has power to hear and determine as a court of equity, in cases of grants, devises and appointments of any real or personal property for any charitable use, in all cases of trusts, etc.^ The said court may subject the interest of the cestui que trust to the payment of a judgment against him, or may pre- vent the transfer of such interest, by proper pro- ceedings against him in chancery.*^ No trusts con- cerning lands, excepting such as may arise or result as an implication of law, shall be created or declared, unless by an instrument signed by the party crea- ^ See Rev. Stat. 1857, p. 318, sec 17 and 18; see also Johnson v. Snow, 5R. I. Rep., 72. » Rev. Stat., p. 496, sec. 40. ' See act of Jan. Session 1856, schedule 71, sec. 1; see also. In Matter of Durfee, 4 R. I. Rep., 406; see further, Eaton v. Tillinghast, Trustee, et al., 4R. I. Rep., 276. * See Green, et al. v. Mumford, et al., 4 R. I. Rep., 313. In Matter of Durfee, 4 R. I. Rep., 406, remarks of Ames, C J. ' Rev. Stat. N. Hampshire, 1853, p. 434, sec. 9. • Ut supra, p. 436, sec. 19 and 20. UNDER STATUTE IN NEW HAMPSHIRE. 469 ting the same, or by his attorney.^ Every trustee to whom any real or personal estate is devised in trust for any minor or other person, by will, must give bond to the judge of probate, with sufficient sureties, in such sum as the judge may order, con- ditioned: first, that he shall file in the probate office a true inventory of the real estate, goods, chattels, rights and credits so devised, at such time as the judge may order; secondly, that he will account annually with said judge, for the annual income and profit thereof; thirdly, that at the expi- ration of said trust, he will settle and adjust his accounts with the judge, and pay and deliver over all balances, money and property, with which he has been intrusted ; and, fourthly, that he will faithfully execute such trust according to the true intent of the devisor. But the bond may be omitted when the testator requests it, or when the parties interested, being of age and capable, shall also request it, so long as the trustee shall continue faithful, etc." When the trustee shall refuse or neglect to exe- cute such bond, he will be considered to have declined the acceptance of the trust. And a trustee so appointed, or appointed by the judge, in pursu- ance of the directions hereafter named, may, upon request in writing to the judge, be permitted to resign his trust, if the judge shall think proper. And if a trustee appointed by will decline accept- * Rev. Stat. New Hampshire, p. 290, sec. 13. ' Ut supra, p. 426, sec. 1 and 2. 470 TRUSTEES CONSTITUTED BY THE COURT ing the trust, and the will make no provision for perpetuating it, or if he shall die, or resign, or be removed, the judge may, after notice to the parties interested, appoint a trustee to administer such trust/ The trustees so appointed are to give bonds, etc., the same as though they had been appointed by the testator in the will ; and the estate also vests in them in the same manner.^ Whenever a trustee becomes disqualified for the discharge of the trust, by becoming insane, or other- wise incapable or evidently unsuitable for the exe- cution of the trust ; or whenever he shall neglect or refuse to comply with the provisions of the statute on that subject, after notice to him, and other parties interested, he may be removed by the judge. And any trustee appointed by the judge shall demand and receive of the original trustee all property, real and personal, which came to his hands as such, etc.^ The judge, on application, may order the sale of trust property, and an investment of the proceeds ; and he may grant license to the executor or admin- istrator of a deceased trustee to convey to the bene- ficiary, if proper, etc.* Oregon. — The statutes of Oregon provide that a trustee of an express trust may sue without joining with him the person for whose benefit the action is brought; and they define a trustee of an express ' Rev. Stat. New Hamp., p. 426, sec. 3, 4 and 5. ' Ut supra, p. 426, sec. 6. = Ut supra, p. 426 and 427, sec. 7 and 8. * Ut supra, p. 427, sec. 9 and 10. UNDER STATUTE IN LOUISIANA. 471 trust to be any person with whom, or in whose name, a contract is made for the benefit of another.^ But in suits against trustees, claims of the benefi- ciary may be set off in the same manner as they would if the action were against them.^ There appear to be no other statutes or decisions upon the subject of trusts and trustees, in Oregon. South Carolina. — All declarations and creations of trusts in South Carolina must be in writing, except such as arise by implication, or construction of law, etc.^ So, likewise, assignments of trusts must be in writing. So, likewise, the interest of the cestui que trust is liable to execution,* and becomes assets in the hands of the heir, etc.^ A minor trustee, by order of a court of chancery, may convey lands; and he may be compelled to convey.^ Trustees may surrender or resign their trust by permission of the court, when the cestuis que trust are willing, and the court may appoint others in their place ; and the newly appointed trustees are invested with the rights, powers, titles, etc., of the original trustees.'^ In other respects trusts are administered as at common law. Louisiana. — In Louisiana the law of trusts is regulated by their Civil Code published in 1838. It is provided therein that substitutions and fidei » Stat, of Oregon, 1855, p, 82, sec. 5. ^ Ut supra, p. 145, sec. 7. = 2 vol. Stat., p. 526. * 2 vol. Stat., p. 527, sec 9 and 10. * 2 vol. Stat., p. 527, sec. 10. * 2 vol. Stat., p. 546 and 547. ' Vol. 5, p. 277 and 278. 472 TRUSTEES CONSTITUTED BY TUE COURT commissa are, and remain, prohibited/ Every dis- position by which the donee, the heir or legatee, is charged to preserve for, or return a thing to a third person, is null, even with regard to the donee, the heir or legatee. In consequence of this article, the trebellianic portion of the civil law, that is to say, the portion of the property of the testator, which the instituted heir had a right to retain, where he was charged with a fidei commissa, or fiduciary bequest, is no longer a part of the law of Louisiana.^ It is held, however, that nothing in the laws of Louisiana pro- hibits a man from transferring property to another, to be held for his use ; and where the person for whose use the trust is created, consents and agrees that it shall stand in the name of another for his benefit or use, that it is neither a substitution or a Mei commissa, and therefore may stand. ^ But where it was provided by will that the property of the estate was to remain in the hands of the execu- tors until the testator's children or heirs should arrive at the age of majority, it was held that it was the same as to authorize them to hold, keep and preserve it for, and return it to them : and that being 1 See Civil Code, 1838, art, 1507, p. 229. « Civil Code, art. 1507; see Hope v. State Bank, 4 La. Rep., 213; Arnaud t). Tarbe, et al., 4 La. Rep., 502. See remarks of Mathews, Justice, in delivering the opinion of the court. Duplessis v. Kennedy, et al., 6 La. Rep., 231. See argument of counsel and numerous authorities cited. 3 See Hope v. State Bank, 4 La. Rep., 213; see also W. B. Partee, Trustee, etc v. Succession of H. R. W. Hill, Mrs. Mary R. Lester, Inter- venor; 12 La. An., 767. UNDER STATUTE IN MARYLAND. 473 SO, it was fidei commissa, or trust, and prohibited by law/ Maryland. — There appear to be no provisions by statute in Maryland, changing the law of trusts as administered by courts of equity. The decisions of their courts are mostly in accordance with well established principles at common law, and the authority of the court to remove and appoint trus- tees is left to be administered as at common law. Section IV. CONSTITUTION OF TRUSTEES BY AN ACT OF THE LEGISLATURE. The power of the legislature to appoint trustees does not admit of any question. They could not confer this power upon the courts did they not possess it themselves. This power is frequently exercised by them in the legislative organization of various public institutions for civil, moral, religious and charitable purposes ; such as the institution of boards of public works, or commissioners for various purposes ; as trustees of asylums for the blind, the deaf, the insane, etc. : and in the incorporation of societies for social, moral, literary, scientific and religious purposes, the trustees are not unfrequently constituted by the incorporating act, and provisions are made therein for their continuance. ' Claque's Widow r. Claque's Ex'rs., 13 La. Rep., 7. For the law of Louisiana, on the subject of trusts, see Civil Code, title 2, " Of donations inter vivos and mortis causa," chap. 4. " Di.spositions reprobated by law," page of the Code, 229. See also Partee, etc. v. Lester, etc., 12 La. An., 767; Harper v. Stanborough, 2 La. An., 381; Succession of Franklin, 7 La. An., 412. 474 CONSTITUTION OF TRUSTEES There are a class of trusts, which, in this country, will fail unless the legislature interfere and provide for their execution. It embraces those cases which, in England, vest the right in the King as parens patricB ; as, where there is a gift to charity, and no charity is appointed ; or that which is appointed is superstitious, or illegal, etc. ;^ or where the objects are so indefinite or uncertain that the court cannot determine its execution. In these and the like cases, the people, through their legislatures, can, if they wish, exercise as plenary a jurisdiction as the King in England. Section V. THE CONSTITUTIOX OF TRUSTEES BY IMPLI- CATION AND CONSTRUCTION OF LAW. Lord Coke described the nature of a use or trust, thus : " It is a trust or confidence reposed in some other, which is 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."^ So the cestui que use has neither jus in re, nor jus ad rem. Bacon defines a use to be, " Usus est dominium jiduciarum ;"^ that is, an ownership in trust. Chief Baron Gilbert, says :^ "A use is where the legal estate of lands is in a certain person, and a trust is * See Williams v. Williams, 4 Seld.,525; Buchanan V.Hamilton, 5 Yes., 722; Ayres v. The M. E. Church, 3 Sandf. S. C. Rep., 351; Owens v. The Missionary So. of the M. E. Church, 14 N. Y., 384; Beekman v. The People, 27 Barb. S. C, 263. " Coke Lit., 272, b; Chudleigh's case, 1 Co. Rep., 121, a, b. ' Bacon. Read., 9. * Gilb. on Uses, p. 1. BY IMPLICATION OF LAW. 475 also reposed in him and all persons claiming in privity under him, concerning those lands, that some person shall take the profits ; and be so seised or possessed of that legal estate to make and execute estates according to the direction of the person or persons for whose benefit the trust was created." It has already been shown that a trust is a use which is not executed by the statute, and therefore comes under the definition of a use, as above set forth. This trust or confidence arises frequently as an implication of law; that is, under the circum- stances, the law presumes there was an understand- ing between the parties, by which the holder of the legal interest or estate in the property was to hold it in trust, or for the use of another ; and, acting upon this presumption, the law converts the legal holder into a trustee. Thus, where one takes the conveyance of property in his own name while the consideration therefor is paid by another, in the absence of all proof to the contrary, the law pre- sumes it was the understanding between the parties that the property should be held for the benefit of the one paying the consideration money, and there- fore converts the grantee into a trustee;^ and 'Loutisbury v. Purely, 4 Smith, 515; Elliott v. Armstrong, 2 Blackf., 198; Jennison v. Graves, ib., 441; Prcvo v. Walters, 4 Scam., 35; Powell r. Powell, 1 Freem. Ch., 134; Talliaferro v. Talliaferro, G Alab., 404; Pinney v. Fellows, 16 Verm., 525; Bank of U. S. v. Carrington, 7 Leigh, 566; Page v. Page, 8 N. H., 187; Brock v. Savage, 31 Penn. St. Rep., 410; Fillman v. Divers, 31 Penn. St. Rep., 429; Barnett v. Dougherty, 32 Penn. St. Rep., 371; Kellum v. Smith, 33 Penn. St. Rep., 158; Smyth v. Oliver, 31 Alab., 39; Kelley v. Johnson, 28 Miss., (7 Jones,) 249; Northcraft v. 476 CONSTITUTION OF TRUSTEES although the conveyance be absolute upon its face, parol proof will be admitted to establish the fact of payment by another, and such other circumstances as will convert the grantee into a trustee.^ So also where the consideration, for the purchase of land conveyed to a third person, is paid in part with the money of the husband, and in part by that of the wife, not reduced to possession by the husband, the use enures to the benefit of the husband and wife in proportion to the amounts respectively paid by each." But the proof of payment by the cestui que trust, must be clear and conclusive.^ And a trust only results when the money is actually paid at the Martin, ib., 469; Dunnica v. Doy, 24 Miss., (3 Jones,) 167; Rankin v. Harper, 23 Miss., 579; Orton v. Knab, 3 Wis., 576; Farley v. Blood, 10 Foster, 854; Lynch v. Cox, 23 Penn. St. Rep., (11 Har.,) 265; Williams V. Van Tuyl, 2 Ohio, (N. S.,) 336; Jackson v. Sternbergh, 1 Johns. C, 153; Jackson v. Mills, 13 Johns., 463; Jackson v. Morse, 16 Johns., 197; Harder v. Harder, 2 Sand. Ch., 17; Gomez v. Tradesman's Bank, 4 Sand., 102; Reed v. Fitch, 11 Barb., 399. * De Peyster v. Gould, 2 Green's Ch., 474; Page v. Page, 8 N. H., 187; Dismukes v. Terry, Walk., 197; Farrington v. Barr, 36 N. H., 86; Fausler V. Jones, 7 Ind., 277; Rogan v. Walker, 1 Wis., 527; Whiting v. Gould, 2 Wis., 552; Nichols v. Thornton, 16 111 , 113; Boyd v. McLean, 1 J. Ch., 682; Malin v. Malin, 1 Wend., 625; Jackson v. Matsdorf, 11 Johns., 91; Livingston v. Livingston, 2 Johns. Ch., 537; Mann v. Mann, 1 Johns. Ch., 231; Hosford v. Merwin, 5 Barb., 51; Artcher v. McDuffie, 5 Barb., 147; Day V. Roth, 4 Smith, 448. " Hall V. Young, 37 N. H., 134; same principle see Wallis v. Beauchamp, 13 Tex., 303; Smith v. Strahan, 16 Tex.. 314; McCammon v. Pettitt, 3 Sneed, 242; Tebbetts v. Tilton 11 Foster, 273; Pensenneau v. Pensenneau, 22 Miss., 27; Sheldon r. Sheldon, 3 AVis., 699; Neill v. Keese, 13 Tex., 187. 'Greer v. Baughman, 13 Md., 257; Olive v. Dougherty, 3 Iowa, 371; Malin v. Malin, 1 Wend,, 625; Jackson v. Bateman, 2 Wend., 570; Get- man V. Getman, 1 Barb. Ch., 499; Freeman v. Kelley, Hoff., 90. BY IMPLICATION OF LAW. 477 time of the purchase.^ Neither does a trust result in favor of a parent who purchases land in the name of his child, for the law presumes an advance- ment was intended.^ And if the party claiming the resulting trust has paid no money, he cannot show by parol evidence that the purchase by absolute deed and for a valuable consideration, was made for his benefit.^ But where B had verbally agreed to enter the land, and advance the purchase money for C, who had a settler's claim, and deed back one half of the land to C, on his refunding his share of the purchase money; but subsequently, on the tender of the money by C, refused to convey to him, it was held that a resulting trust arose which took the agreement out of the statute of frauds, and con- verted B,pro tafito, into a trustee.'* Any considera- tion paid by the grantee is sufficient to rebut the presumption that a trust was intended,^ or if a good consideration is stated in the deed.^ » Smith V. Garth, 32 Alab., 368; Gee v. Gee. 32 Miss., (3 George,) 190; Whitney r. Gould, 2 Wis., 552; Gee v. Gee, 2 Sneed, 395; Bolsford v. Burr, 2 Johns. Ch., 405; Steere v. Steer, 5 Johns. Ch., 1; Roggers v. Mur- ray, 3 Paige, 390; see Ross v. Hageman, 2 Edw., 373; Pattisou v. Horn, 1 Grant's cases (Pa.,) 301; Barnet v. Dougherty, 32 Penn. St. R., 371. " Gunthrie v. Gardner, 19 Wend., 414; Gee v. Gee, 32 Miss., (3 George,) 190; Smith v. Strahan, 16 Tex., 314; see also Farley v. Blood, 10 Foster, 354; Wclton v. Divine, 20 Barb., 9; Shepherd v. White, 11 Tex., 346; (but see Valle v. Bryan, 19 Miss., 423;) Astreen v. Flanegan, 3 Edw., 279 Jackson v. Matsdorf, 11 Johns., 91; Parsons v. Mclntyre, 5 Barb., 424 Livingston v. Livingston, 2 Johns. Ch., 537; Jenks v. Alexander, 11 Paige 619. 'Irwin v. Ivers, 3 Ind.. 308; see also Smith v. Smith, 27 Penn. St. Rep., 180. * Brooks V. Ellis, 3 Iowa, 527. ' Farrington v. Barr, 36 N. H., 86. * Orton V. Knab, 3 Wis., 576. 478 CONSTITUTION OF TRUSTEES Upon a similar principle of raising a trust in favor of the one paying the consideration, A was owing B, and executed a mortgage upon his land to secure the debt, and B authorized A to sell the land to pay it. B died ; and his administratrix C agreed with A that a decree should be rendered by virtue of which the land was sold and purchased by the administratrix, who authorized A to sell the land to pay the debt. A, having sold enough for that purpose, claimed the residue for himself, and his claim was sustained by the court.^ Upon the same principle, where the agent, acting in his capacity as such, purchases land and takes the deed in his own name, he holds the title as trustee for his principal.^ Here, likewise, is involved the principle of con- structive fraud, by which a trust arises by construc- tion of law. So, likewise, where an attorney was employed to foreclose a mortgage, and took a con- veyance in his own name, he was held to be trustee of the title for his client.^ Or where a trustee diverts the trust funds to the purchase of land, and takes a deed in the name of a third person, a trust results in favor of the cestui que trust} But no resulting trust can be raised in opposition to the written agreement of the parties, on which the con- ' Langhorne v. Payne, 14 B. Monr., 624. « Follansbe v. Kilbreth, 17 111., 522; Sheldon v. Sheldon, 3 Wis.. 699; ante p. 32, 33. * Giddings v. Eastman, 6 Paige, 561; Anstice v. Brown, 6 Paige, 448. * Russel V. Allen, 10 Paige, 249; Getman v. Getman. 1 Barb. Ch., 499; ante p. 33. BY IMPLICATION OF LAW. 479 veyance was founded.^ So also a resulting trust may be rebutted by proof that the title was put in the grantee for the purpose of defrauding creditors, or for the purpose of protecting the property from the creditors of the one who furnished the purchase money f but a trust will be raised in favor of the creditors.^ In New York, Michigan, Wisconsin, and some of the other states,"^ resulting trusts do not arise in favor of the one paying the consideration money, and permitting the conveyance to be made in the name of a third party. But if the conveyance is made to another person, without the knowledge and consent of the party paying the money, or if the purchase be made with funds held in a fiduciary capacity, a trust results.^ But in such cases, where the property is purchased with the funds of the one who consents to have the conveyance made to another, a trust results to the creditors of the one paying the consideration to the extent that may be necessary to satisfy their just demands.^ 1 St. John V. Benedict, 6 Johns. Ch., Ill; White v. Carpenter, 2 Paige, 217; Squire V. Harder, 1 Paige, 494; Rathbun v. Rathbun, 6 Barb., 98; Leggett V. Dubois, 5 Paige, 114; Ring r, McCoun, 6 Seld., 268; Graves v. Graves, 9 Foster, 129. " Baldwin v. Campfield, 4 Halst. Ch. Rep., 891; Proseus v. Mclntyre, 5 Barb., 424; Leggett v. Dubois, 5 Paige, 114. ' Dunnica v. Coy, 24 Miss., (3 Jones,) 167. * See ante, the various states in section 3 of this chapter; also ante p. 32. * N. Y. Rev. Stat., toI. 3, p. 15, sec. 51, 52, 53; see also Comp. laws of Mich., vol. 2, p. 825, art. 2637, sec. 7, 9; Bodine v. Edwards, 10 Paige, 504; Norton v. Stone, 8 Paige, 222; Ostrander v. Livingston, 3 Barb. Ch., 416. * N. Y. Rev. Stat., vol. 3, p. 15, sec. 52; Compiled laws of Mich., vol. 2, p. 825, art. 2638, sec. 8. 480 CONSTITUTION OF TRUSTEES In all cases where trust moneys placed in the hands of others in a fiduciary capacity, have been invested in property, without the consent of the beneficiary, a trust results; and the purchaser becomes a trustee, unless the cestui que trust elect to take the money instead of the property ;^ and the cestui que trust may pursue the property into the hands of all subsequent purchasers, with notice, and convert them into trus- tees.^ And this right of pursuit will not end until the means of ascertainment fails f for the law will not permit one, in the discharge of his legal duty to another, to place himself in a position where there is a conflict between self-interest and integ- rity.* But the reason does not apply where one, having notice of the trust, buys the property from one who purchased the same innocently; for he takes the title which the innocent purchaser had, discharged of the trust.^ ^ Torry v. Bank of Orleans, 9 Paige, 663; also Van Epps v. Van Epps, ib., 237, 241; Wormley v. Wormley, 8 Wheat., 421; Prevost v. Gratz, 6 Wheat., 481; Hawley v. Cramer, 4 Cow., 736; Seaman v. Cook, 14 111., 501; Chapin v. Weed, Clark, 464; Quackenbush v. Leonard, 9 Paige, 334; Den V. McKuight, 6 Halst., 385; Caldwell v. Carrington, 9 Pet., 86. * Adair v. Shaw, 1 Scho. & Lefr., 862; Sanders v. Dehew, 2 Vern., 271; 2 Foubl. Eq., 152; Hollister Bank of Buffalo v. Camp, Gen. T. June 1857; Peebles v. Reading, 8 S. & R., 495; Massay v. Mcllwayne, 2 Hill's Eq., 426; Wright v. Darue, 22 Pick., 55. = Thompson's Appeal, 22 Penn. St. Rep., 16; Goepp's Appl., 15 Penn. St. R., 428; Seaman v. Cook, 14 111., 505. * Wormley v. Wormley, 8 Wheat., 421; Van Epps ». Van Epps, 9 Paige, 237; Hawley v. Cramer, 4 Cowen, 717; Slade v. Van Vechten, 11 Paige, 21; Ackerman v. Emott, 4 Barb., 626. ^ Boggs V. Varner, 6 W. & S., 469; Bracken v. Miller, 4 W. & S., 102; Griffith V. Griffith, 9 Paige, 315; Fletcher v. Peck, 6 Cranch, 36; Lacy v. Wilson, 4 Munf.,313; Boon r. Chiles, 10 Pet., 177; except the original trustee, who is charged with the trust. Church v. Church, 25 Penn. St., 279; Bovey v. Smith, 1 Vern., 149; 1 Cruise's Dig., tit. 12, chap. 4, sec. 14. BY IMPLICATION OF LAW. 481 Upon the same principle, the trustee, as a general rule, is not permitted to buy the property of the cestui que trust} When money belonging to another, where the fiduciary relation does not exist, is used in the pur- chase of property, no trust results; and the pur- chaser or holder of the property does not become trustee.^ Where trust and confidence are reposed by one party in another, and such other accepts the confi- dence, etc., equity will convert him into a trustee whenever it is necessary to protect the interest of the confiding, and do justice between them. An attorney sustains such a confidential relation to his client, that, in transactions between them, trusts by implication and construction of law are quite liable to arise. The client employs the attor- ney because of the confidence he has in his integrity and skill in managing his affairs and protecting his interests : and this confidence gives the attorney a very strong influence over his client's actions. And, besides the superior legal knowledge of the solicitor, and the intimate knowledge he has of his client's situation, together with that confidence which he > Pratt r. Thornton, 28 Maine, 355; Wormley v. Wormley, 8 Wheat., 421; Conger v. Ring, 11 Barb., 356; Dobson v. Racey 3 Sand. Ch., 60; ante, 144; see also as between attorney and client, Giddings v. Eastman, 5 Paige, 561; Evans v. Ellis, 5 Denio, 640; Wallace v. Loubat, 2 Denio, 607; Wilson V. Moran, 3 Brad., 172. Tlie same principle is applicable to all standing in relations of confidence or trust; see ante p. 131 et seq. "Campbell v. Drake, 4 Ired. Eq., 94; Ensley t;. Ballantine, 4 Humph. 233; Pascoag Bank v. Hunt, 3 Edw., 583; but see 4 Edw., 219. 31 482 CONSTITUTION OF TRUSTEES possesses, gives him great power to avail himself, if he is so disposed, of his client's credulity, liber- ality or necessity. For these and similar reasons, the law watches over the transactions between par- ties in this relation with exceeding jealousy '} and it throws the burden of establishing the perfect fairness of all such transactions upon the attorney.^ This is in accordance with the general rule, that he who bargains in a matter of advantage with a per- son placing confidence in him, is bound to shew that a reasonable use has been made of that confi- dence.^ And this doctrine is not confined to those cases where their transactions respect the rights of property in controversy, and in which the attorney is engaged ; but the prohibition may be extended after the particular relation of attorney and client has ceased, and it has been held to be perpetual.'' The principles upon which these doctrines are based, underlie all those fiduciary relations which necessarily exist in society, and are more or less ' Wright V. Proud, 15 Ves., 138; Jennings v. McConnel, 17 111.; Starr v. Vanderhyden, 9 Johns., 258; Ford v. Harrington, 16 N. T. Rep., 285; Evans v. Ellis, 5 Denio, 640; Barnard v. Hunter, 39 Eug. L. and Eq. Rep., 569. ^ Story's Equity Jurisprudence, sec 113; Ford v. Harrington, 16 N. Y. Rep., (2 Smith.) 285; Sug. V. and P., Vol. III., p. 238, 10th ed.; Mon- tesque v. Sandys, 18 Ves., 302; Hunter v. Atkins, 3 M. & K.,113; Hooper ». Burnett, 26 Miss., 428; Evans v. Ellis, 5 Denio, 640; Scoby v. Ross, 5 Ind., Holman v. Loynes, 27 Eng. L. & Eq. Rep., 168. ' Ante, p. 138; also Hawley v. Cramer, 4 Cow., 717; Evans v. Ellis, 5 Denio, 640; Wilson v. Moran, 3 Brad., 172; Ford v. Harrington, 16 N. Y. Rep., 285. * See Henry v. Raiman, 25 Penn. St. Rep . 354; also Wood v. Downes, 18 Ves., 127; Stockton v. Ford, 11 How. U. S., 232; Dobbins v. Stevens 17S.&R., 13. BY IMPLICATION OF LAW. 483 stringently applied according to the circumstances of each particular case.^ Thus in transactions between principals and their ao-ents, guardians and their wards, trustees and their cestuis que trust, such confidential relations exist, and such opportunities for exercising an undue influence occur, that the court feels constrained to watch them with extreme jealousy ; and where a gift is taken by the agent from his principal, or by the guardian from his ward, or by the trustee from his cestui que trust, or where property is acquired by them in any manner in such relation, the court will impose upon the party the burden of proof to show that he has dealt with his principal, ward or cestui que trust, ex- actly as a stranger would have done.'^ Executors and administrators hold the property of their testators or of the intestate, in their hands, in trust for the payment of debts and legacies, and for the application of the surplus according to the will of the testator, or the statute of distribution : and courts of equity proceed in cases of this kind as in the execution of trusts. Consequently, like trustees, they are prohibited from dealing with the estate of their testators or intestates on their own > See ante, p. 143, and remarks of Supreme Court of U. S. there quoted; Gardner v. Ogden, 22 N. Y. Rep., (8 Smith,) 327; Lake v. Ranuey, 33 Barb., 49. » Hunter v. Atkins, 3 M. &- K., 113; Michoud v. Girod, 4 How. S. C, 503; N. Y. Central Ins. Co. v. ISfational Prot. Ins. Co., 14 N. Y. Rep., (4 Kern.,) 85; Vanderpool v. Kearnes, 2 E. D. Smith, 170; Dunlop v. Rich- ards, 2 E. D. Smith, 181; Pennock's Appeal, 14 Penn. St. Rep., 446; Jones V. Smith, 33 Miss., 215; see ante, 144, et seq. 484 CONSTITUTION OF TRUSTEES account.^ Executors and administrators can not be permitted to purchase for themselves, that property which the law makes it their duty to sell, without violating that principle of public policy which pro- hibits the same individual to combine the character of vendor and purchaser. This rule is based upon our recognized obligation from placing ourselves in relations which ordinarily excite a conflict between integrity and self-interest. The disability to pur- chase in such cases, is a consequence of that relation between the parties which imposes on the one the duty to protect the interests of the other ; from the faithful discharge of which duty his own personal interests may withdraw him. In this conflict of interest, the law wisely interferes. It is true that a sense of duty may prevail over motives of self- interest ; but it is equally true that the dictates of self-interest may exercise a predominating influence and supercede those of duty. Experience has taught that it is not well to subject man to so severe a trial. The law based upon such experience there- fore, prohibits a party from ]Durchasing on his own account that which his duty or trust requires him to sell on account of another : and also from pur- chasing on account of another that which he sells on his own account.^ ' Wormley v. Worraley, 8 Wheat., 421; Shannon v. Marmaduke, 14 Texas, 217; Moor v. Moor, 1 Seld., 256; Van Horn v. Fonda, 5 Johns. Ch., 388; Hatch v. Hatch, 9 Ves., 297; AyliffT). Murry, 2 Atk., 59; Pratt v. Thornton, 28 Maine, 355; Evans v. Ellis, 5 Denio, 640. ^ See remarks of the Judge delivering the opinion of the Supreme Court of the United States in case of Michoud v. Girod, 4 Howard S. C. Rep. 503; see ante, 143, et seq.-, Abbot v. American Hard Rubber Co., 33 Barb. BY IMPLICATION OF LAW. 48S It is impossible to enumerate all the cases where the law raises an implied trust between parties standing in a confidential relation to each other. The law is very astute in discovering such relation, and exact in requiring fidelity in it. Thus, w here a debtor has deposited in the hands of his surety, a note on a third person, as an indemnity against lia- bility, and the surety transfers such note to another person who is cognizant of the trust, the latter per- son becomes a trustee by implication of law for the benefit of the creditor, as to the money collected on such note,^ and where an executor has, under a de- cree of foreclosure of a mortgage due to the estate, purchased the premises, he holds in trust ; and if he sells the premises at a large advance, such excess will belong to those for whose benefit the mortgage was held.^ But it is held that the financial officer of a bank is not disqualified from purchasing for his own benefit, property pledged to the bank for a debt.' Where an estate has been devised to a trustee, and he refuses to accept the trusts under the will, whereby the legal estate vests in the heir, such S. C, 579; Schoonmakcr v. Van Wyck, 31 Barb. S. C Rep., 457; Dobson V. Racey, 8 N. Y. Rep., 216; Cumberland Coal and Iron Co. v. Sherman, 30 Barb. S. C, 553. ' Martin v. Bank, 31 Alab., 115; see also People v. Houghtaling, 7 Cal., 348; CoflFee v. Crouch, 28 Miss., (7'Jones,) 106; Northcraft v. Martin, lb., 469; Wallis r. Beaucharap, 15 Texas, 303; Wallace v. Bowens, 28 Verm, 638; Ea.sterbrooka v. Tillinghast, 5 Gray, 17; Tracy v. Tracy, 3 Brad., 57; Beck's Ex'rs v. Graybill, 28 Penn. St. Rep., 66. ' Schoonmakcr v. Van Wyck, 31 Barb. S. C Rep., 457; see also Cum- berland Coal and Iron Co. v. Sherman, 30 Barb. S. C. Rep., 553; see also Gardner v. Ogden, 22 N. Y. Rep., 327. 486 CONSTITUTION OF TRUSTEES heir will become a trustee by implication and con- struction of law.^ So, also, where it is evident from the will, that the testator intended that the heir-at-law, or other person, should take the legal estate for the benefit of the real devisee, although no formal words of devise in trust are used, the heir or other person will be deemed to take in trust for such devisee.^ Wherever the objects of the testator's bounty and the benefit intended are clear, a trust is created, whoever may hold the property bequeathed'^ ; so, where land has been conveyed by an absolute and unconditional deed to secure a debt due from the grantor to the grantee, the law will imply a resulting trust, and constitute the grantee a trustee for the grantor, for any surplus that may arise on the sale of such land.^ So, also, where the husband takes a deed in the name of the wife under the belief that on her death, the legal title would vest in himself, equity will give such an effect to the deed, by raising an implied trust/ A parol agreement to purchase land which is to be sold on execution, and to hold it for the benefit of the execution debtor, constitutes a valid trust, and is not within the Statute of Frauds, as an agreement for the sale of lands.*^ In cases of this character a trust ' Cushney v. Henry, 4 Paige Ch. Rep., 345. " Iloxie V. Hoxie, 7 Paige Cli. Rep., 187. = Mclntyre Poor School v. Z an. Canal and Manuf. Co., 9 Ham.. 203; Hertell v. Van Buren, 3 Edw. Ch., 20; Magruder v. Peter, 11 Gill. & J., 217. * Richardson v. Woodbury, 43 Maine, 206. * Wallace v. Bowens, 28 Verm, Rep. 638. * Soggins V. Heard, 31 Miss., (2 Geo.,) 426. BY IMPLICATION OF LAW. 487 is raised ex maleficio, by which the fraudulent pro- curer of the legal title is turned into a trustee to get at him.^ Where a husband, with the consent of his wife, sold her lands under a promise to invest the proceeds in other lands, but took the deed in his own name, and soon after died, it was held that the husband took the lands clothed with a resultinjr trust in favor of the wife.^ • In the case of Sieman v. Austin et al.^ the plain- tiff had brought her action to restrain the prose- cution of an ejectment by the defendant Austin, and to have the Sheriff's deed, under which the defendant claimed, to be delivered up to be cancelled. The facts in the case were substantially as follows : In March, 1847, the parents of the plaintiff, while she was an infant, and without any knowledge of the transaction on her part, wishing to invest, for her, the sum of $1,000, negotiated for the conveyance of the land in dispute to one Young, with whom they made an agreement, that he should hold it for her benefit, and, at a future day, convey it to her. Y. paid no part of the consideration money, and never exercised or asserted any acts of ownership over the same, and never expected or intended to set up any claim as against the plaintiff. There was no written evidence of the agreement, and no written declaration of the trust. The parents of the plaintiff took possession ' See Morey v. Herrick, 18 Penn. St. Rep., 128; Hoge v. Hoge, 1 Watts, 213; see ante, 189. ' Pritchard v. Wallace, 4 Sneed, 405. ' 33 Barb. S. C Rep., 10; Hosford v. Merwin, 5 Barb., 51. 488 CONSTITUTION OF TRUSTEES of the land and exercised the rights of ownership over it. In March, 1849, a judgment was recovered against Young, and was duly docketed. In May, 1853, Young, in pursuance of the agreement between himself and the parents of the plaintiff, conveyed the land to the plaintiff. All the foregoing facts were stated by him on an examination in proceed- ings supplementary to an execution issued on the judgment against Young. This examination was in June, 1853. In August following all the interest of Young in the premises conveyed to the plaintiff, was sold under execution, issued on the judgment against Young. A., who was the attorney for the plaintiff in execution, became the purchaser at such sale, and assigned the certificate of purchase to the defendant Austin, who paid no consideration, and to whom the sheriff made his deed of the premises. A. paid the judgment of his client S. against Young, by crediting him the amount on account, and the assignment to the defendant Mary Austin, sister of the purchaser, was upon the consideration of " natural affection." It was held by the court, under the facts of the case, that here was a valid trust, raised by construction of law, and not resting upon the parol agreement of Young ; and, conse- quently, notwithin the Statute of Frauds. That, as a resulting trust, it was not within the fifty-first section of the Statute of Uses and Trusts,^ because the operation of that statute is restricted to cases where the party claiming the benefit of the trust * 1 R. S., 728, and cites Hosford v. Merwin, 5 Barb., 51. BY IMPLICATION OF LAW. 489. created it himself; and that it does not extend to trusts created by one person for the benefit of another, without his knowledge, and subsequently accepted by him. The judge, in giving the decision in this case, remarked that the trust was one which fell within that class of trusts described in the books as arising or resulting by implication of law, resting upon the obviously yet insuiTiciently de- clared intention of the parties, or upon the fraud and unconscientious dealing which the enforcement of a trust is necessary to prevent ; and tliat it arose in this case " from the payment of the money, the acceptance of the deed by the grantee, and his agreement to fulfill the design of the person who paid the consideration, and to hold the title in trust for a third party. Thus the person who asserts the trust, neither paid the money nor consented to the conveyance to the trustee; and, therefore, an essen- tial element is wanting to bring the case under either section of the statute."^ In this case, had Young refused to convey the premises to the plaintiff, there can be but little doubt that the court, on application, would have decreed him to be a trustee ex maleficio. The trust, in such a case, is not raised so much because of the fraud in the ori- ginial acquisition of the property, as in the subsequent refusal to execute the trust.- A trust by implication and construction of law arises in favor of the creditors of one Avho has paid ' 33 Barb. S. C. Rep., 10; Hosford v. Merwin, 6 Barb., 51. « See Morey v. Hcrrick, 18 Pcnn. St. Rep., 128; Iloge v. Ilogo, 1 Watts, 213; DixBon v. Oliraus, 1 Cox Ch. Ca., 414; ante, 189. 490 CONSTITUTION OF TRUSTEES the consideration money for the purchase of real estate, but has taken the deed in the name of ano- ther. This is the law especially in New York, Michigan, Wisconsin, and some other States, by special statute/ Where a grantor, upon executing a grant of land, receives from the grantee, as a consideration for such grant, an agreement not under seal, to support and maintain the grantor, pledging, for that pur- pose, the produce of the land, and, if necessary, the fee also, the agreement takes effect as an equitable mortgage of the land; and a judgment creditor purchasing under a sale on his execution against the grantee, takes subject to such mortgage.^ Where one partner secretly makes a purchase, for his own use, of a reversion of real estate, occupied by the copartnership under a lease for years, while the other partner, with his concurrence, is negotia- ting with the owner to obtain the property for the use of the firm, the purchaser will be deemed a trustee for the firm, and will be so declared to be by construction of law.^ Trusts arise, and hence trustees are created by ' McCartney v. Bostwick, 31 Barb. S. C Rep., 390; see ante, N. Y. Rev. St., 1859, Vol. III., p. 15, sec. 51, 52, 53; 5 Barb., 51; 12 Barb., 658; 16 Barb., 376; 1 Smith, 475; Mich. Rev. St., 1846, chap. 63, sec. 6; Wis. Rev. St., 1858, chap. 84, sec. 7; see also Wood v. Robinson, 22 N. Y. Rep., 564. * Chase v. Peck, 21 N. Y. Rep., 581; see Miller on Equitable Mortgages, pp. 1, 2 and 218; Jackson v. Dunlop, 1 Johns. Ca., 114; Jackson v. Park- hurst, 4 Wend., 369; Arnold v. Patrick. 6 Paige, 310; Day v. Roth, 18 N. Y. Rep., 448. ' Anderson v. Lemon, 8 N. Y. Rep., 236; see also 1 Paige Ch. Rep., 158, andl7 Ves.,311. BY IMPLICATION OF LAW. 491 implication and construction of law, in consequence of equitable conversions of property. By an equi- table conversion of property is meant an implied or constructive change of property from real to personal, and from personal to real, so that in the transfer or transmission of such property, either by descent or purchase, it comes under those rules which pertain to the new character impressed upon it by such conversion. The doctrine of equitable conversion seems to be a mere consequence of the common doctrine of a court of equity, that where, things which are lawful and proper to he done, and are agreed to he done, where justice or right requires it, shall he treated as done} One of the most familiar examples of this kind of conversion is where a contract is made for the sale of land. In such case, in equity and by con- struction of law, the vendor becomes immediately a trustee for the vendee, of the real estate ; and the vendee becomes at the same time a trustee of the vendor, of the purchase money ; and consequently there is an implied or constructive change of the realty into the personalty, and of the personalty into the realty; so that the vendee is the owner of the land, although the legal title continue in the vendor ; ' story's Eq. Juris., sec 1212, also sec. 791; see also Craig v. Leslie, 3 Wheat. Rep., 577; Beverly v. Peter. 10 Peters' Rep., 532; Pulteny v. Dar- lington, 1 Bro. Ch. Rep., 237; Collins v. Champ's Heirs, 15 B.Monr., 118; In re Pedder's Settlement, 31 Eng. L. and Eq. Rep., 244; Loughborough V Loughborough, 14 B. Monr., 549; Bramhall r. Ferris, 14 N. Y. Rep., (4 Kern. ) 41; Parkinson's Appeal, 32 Penn. St. Rep., 455; Kane v. Gait, 24 Wend., 641; Drake v. Pell, 3 Edw. Ch., 251; see also on this subject, ante, p. 75. et seq. 492 CONSTITUTION OF TRUSTEES and the money due or to become due, is the personal estate of the vendor ; and in equity each will be treated according to this new character thus given/ The question of conversion is one of intent ; and where the intention to thus convert the property is clearly expressed, or necessarily implied, the court will hold the conversion to be complete ; thus, where a testator directs money to be invested in land, or land to be turned into money, such land or money, for all the purposes of the will, becomes that species of property into which it was directed to be converted.^ And this intention to convert real estate into per- sonalty, may be implied from the necessity thereof to carry out the purposes of the will, coupled with the power to sell and convey. Thus where a tes- tator, in the next clause of the will to the one appointing his executors, gave to them the power of sale and conveyance, and where it appeared from the whole will that such sale was necessary for car- rying out the provisions of the same, it was held, that all the real estate of the testator was to be con- sidered as converted into money, although there was ^ Story's Eq. Juris., sees. 790, 1212; Seton v. Slade, 7 Ves., 264, et seq.,- Craig r. Leslie, 3 Wheat. Rep., 577; Beverly v. Peters, 10 Peters' Rep., 532; Henson v. Ott, 7 Ind., 512; Loughborough v. Loughborough, 14 B. Monr., 549; Collins v. Champ's Heirs, 15 B. Monr., 118; Hare v. Van Deusen, 32 Barb. S. C Rep., 92; see Warren v. Fenn, 28 Barb. S.C, 333. "Lorillard v. Coster, 5 Paige Ch. Rep., 172; Kane v. Gait, 24 Wend., 641; Drake v. Pell, 3 Edvv. Ch. Rep., 251; Hawley v. James, 5 Paige Ch. Rep., 318; Marsh v. Wheeler, 2 Edw. Ch. Rep., 156; Smith v. McCrary, 3 Ired. Ch., 204; Byrne v. Stewart, 3 Desau., 135; Bramhall v. Ferris, 14 N. T. Rep., (4 Kern.,) 41; Mathis v. Guffin, 8 Rich. Eq., 79; Wilkins r. Taylor, lb., 291; Harcum v. Hudnall, 14 Gratt., 369; Schoonmaker v Van Wyck, 31 Barb. S. C. Rep., 457; Phelps v. Phelps, 28 Barb. S. C, 121; Lyman v. Parsons, 28 Barb. S. C, 564. BY IMPLICATION OF LAW. 493 no express direction to sell/ But a court of equity will not interfere to change the character of pro- perty in its administration, unless the intention of the testator, vendor, etc., demands it to be done, to carry out his legal and just intentions. Thus, a mere authority to the administrator or executor to sell any or all the real estate of the testator, and reinvest the proceeds thereof in personal estate, does not manifest such an intention to convert real estate specifically devised into personalty, as to change the direction of the testator's bounty ; but the pro(!eeds of such estate, sold under such autho- rity, are to go to the same persons and in the same proportions as if they had remained real estate.^ In these, as in other cases, the lawful intention of the testator, so far as it can be ascertained, gov- erns. Thus, where the testator directed his trus- tees and executors to invest the personal property coming to their hands, in such a manner that at the time fixed by the will for a division of the estate among the several devisees thereof, it should consist chiefly or altogether of real estate, the court held that, in deciding upon the validity of such devises, the whole trust fund would be considered and treated as real estate, so far as the devises were legal and could be carried into effect.^ But as the doctrine of equitable conversion arises ' Phelps V. Phelps, 28 Barb., 121; see also Parkinson's Appeal, 32 Penn. St. Rep., 455; Grievson v. Kirsopp, 2 Keen, 653. " Holland v. Craft, 3 Gray, 162; Holland v. Adams, 3 Gray, 188; see also Fowler v. Depeaii, 26 Barb., 224. " Hawley v. James, 5 Paige Ch. Rep., 318; see also Bunce v. Vandergrift, 8 Paige Ch. Rep., 37. 494 CONSTITUTION OF TRUSTEES out of that rule of a court of equity, which treats as done, that which is lawful and proper to be done, and which also is agreed or intended to be done, it will not be applied to those cases where the thing to be done is unlawful or improper, or where the intention is not clearly expressed, or being ex- pressed, cannot be executed. Thus, where the pur- pose for which real property is directed by the will to be converted into personalty, fails, the intention of the testator cannot be effected, and therefore there will be no conversion.^ But where money is given by will, to be invested in real estate, upon failure of the bequest, it will go to the heirs at law.^ It not unfrequently becomes a matter of impor- tance to determine when the conversion takes place. This also becomes a question of intention, to be ascertained by considering the language of the will, and the jDur^^oses for which such conversion is to take place. Thus, where a testator by his will, directed his real estate to be sold at a certain time, and the proceeds to be divided among nine resid- uary legatees, one of the legatees, who was a feme covert, died before the time of payment : It was held that the land was to be considered as money from the time of the testator's death, and passed to her husband as personal estate ; and he having died before the sale, it went to his representative, and not to the next of kin of the wife.^ So also, where * Hawley v. James, 7 Paige Ch. Rep., 213; Hutchinson v. Hammond, 3 Bro. C. C, 128; see ante, p. 70, et seq. * Thorn v. Coles, 3 Edw. Ch., 330; see ante, p. 77. ' Rinehart v. Harrison, Baldvv., 177. BY IMPLICATION OF LAW. 495 land was devised to a daughter, with directions that, on the death of the testator's widow, the land should be sold and the proceeds divided among his chil- dren and their heirs, it was held that the land was converted into personalty at the time when the sale was to be made/ In general, it is held, that the conversion takes place from the time of the death of the testator, where it is by will, and from the delivery of the deed, where it is by deed.^ But where the will directs such sale and conversion to be made on the happening of a particular event, equity will consider the property devised as stamped with its changed character from and after such period.^ Whenever it is found to be the intention of the testator to convert money into land or land into money, that intention prevails, and impresses its character upon the property ; and for all such pur- poses, they being lawful and possible, the money becomes land and the land becomes money by con- structive conversion; and whoever becomes the instrument of such conversion, will become a trustee for the purpose specified, by implication and con- struction of law.'^ It is a general rule, that where land is directed ' Brothers v. Cartwright, 2 Jones' Eq., (N. C,) 113; Harcum v. Hud- nall, 14Gratt.,369. * Loughborough v. Loughborough, 14 B. Monr., 549; Brorahall v. Ferris, 14 N. T. Rep., (4 Kern.,) 41; Parkinson's Appeal, 32 Penn. St. Rep., 455; Harcum v. Hudnall, 14 Gratt., 369. ' Brothers v. Cartwright, 2 Jones' Eq., (N. C.,) 113; Harcum v. Hud- nall, 14 Gratt., 369. * See Commonwealth v. Martin, 5 Munf., 117; Phelps i>. Phelps, 28 Barb. S. C, 121; see also Parish v. Ward, 28 Barb. S. C, 328. 496 CONSTITUTION OF TRUSTEES by will to be converted into money, and the pro- ceeds thereof to be applied to purposes which are illegal and void, a trust will arise by implication and construction of law, in favor of the heir.^ The land in such cases, is not converted into money by the direction of the testator, because equity will consider that only as done which is agreed to be, and which ought to be done ; and that purpose which the law declares to be illegal and void, is deemed to be one which ought not to be accomplished : and who- ever takes property subject to such disposition, holds as trustee for those legally entitled.*^ So also in cases of lapse, where a legacy is given which lapses by the death of the legatee during the lifetime of the testator, and such legacy is made a charge upon the real estate, a trust may arise in favor of the heir, the next of kin, or the residuary legatee, according as the intention of the testator will seem to be best effectuated.^ In the case of a devise of real estate, charged with the payment of legacies, and there is a lapse by reason of the death of the legatee during the life- time of the testator, the charge sinks to the benefit of the donee or devisee,^ and no trust is raised. * House r. Chapman, 4 Ves., 542; Gibbs v. Rumsey, 2 V. & B., 294; Lusk V. Lewis, 32 Miss., (3 George,) 297. ' Cook V. Stationers' Co., 3 M. & K., 264, et seq.; see also Jarm. Pow. Div., 75, et seq. 'Noel V. Lord Heuly, 1 Dan., 322; Bowers v. Smith, 10 Paige, 193; Akroyd v. Smithson, 1 Bro. C C, 503; Johnson v. Wood, 2 Beav., 409; Burr V. Sims, 1 Whar., 263; Craig i>. Leslie, 3 Wheat., 583; Morrow r. Brenizer, 2 Rawle, 185. * See Tucker V. Tucker, 1 Seld., 104; Sydenliam v. Tregonwell, 3 Dow., 212. BY IMPLICATION OF LAW. 497 In New York, the rule of the common law on the subject of lapse has been somewhat modified by statute. It is enacted " that whenever any estate, real or personal, shall be devised or bequeathed to a child or other descendant of the testator, and such legatee or devisee shall die during the lifetime of the testator, leaving a child or other descendant, who shall survive such testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shall vest in the surviving child or other descendant of the legatee or devisee, as if such legatee or devisee had survived the testator, and had died intestate."^ The statute changes the rule of the common law on this subject, only in cases where the testator is the ancestor of the legatee or devisee ; and where the deceased legatee or devisee leaves a child or other descendant in esse, at the death of the testator in whom the property devised or bequeathed can vest.^ When a legacy is given to two persons jointly, and ' See 2 R. S., 66, sec. 52; also Bishop v. Bishop, 4 Hill, 138; Chrystie v. Phyfe, 22 Barb., 195; Armstrong v. Moran, 1 Bradf., 314; Willard Ex'rs, 854. ^ Willard's Ex'rs, 354. As to the common law rule, that all devises shall be deemed lapsed if the devisee dies in the lifetime of the testator, see Ballard v. Ballard, 18 Pick., 41; Birdsal v. Hewlett, 1 Paige. 32; Dunlap V. Dunlap, 4 Desau., 314; Gore v. Stevens. 1 Dana, 205; Trippe v.Prazier, 4 Har. & John., 446; Davis v. Taul, 6 Dana, 52; Prescott v. Prescott, 7 Mete, 145. For special provisions in Massachusetts, see Rev. Stat., chap. 62, sec. 24; also Ballard v. Ballard, ut supra, and Fisher v. Hill, 7 Mass., 86. In Pennsylvania, see Act March 19, 1810, Purd. Dig., 568, also p. 1169, ed. 1847; also 5 Smith's Laws, 112; Woolman's Estate, 3 Whart. Rep., 477; see also, on the subject of Lapse in Pennsylvania, Robinson v. Martin, 2 Yates, 525; Wicshaupt v. Brehman, 5 Binn., 118; Dickinson v. Purvis, 8 S. & R., 71 i Craigiiead v. Given, 10 S. &. R., 351. 32 49.8 CONSTITUTION OF TRUSTEES one of them dies before the testator, the share of the decedent will not lapse but will survive to the other legatee.^ There is a distinction to be made where legacies are given to several individuals by name, and where they are given to them as a class. Thus, where legacies are given to several legatees by name, and one of them dies during the lifetime of the testator, his share will lapse. ^ But where the legacy is to several individuals as a class, as to the children of A., and one of the class dies before the testator, there will be no lajDse, but it will go to augment the shares of the others.^ But where real and personal property is directed to be divided equally among three individuals, and one of them dies in the lifetime of the testator, such share sinks into the residue, because it was not given "j^er mie et per tout,'"' as in case of joint tenancy ."* In the foregoing class of cases, trustees will be constituted by implication and construction Of law ; but whether they are to sustain that relation to the heir, next of kin, devisee, legatee or others will be ' Gardner v. Printiip, 2 Barb. S. C. Rep., 83; Willard's Ex'rs, 354. * Bagwell V. Dry, 1 Pr. Wms., 700. For general rule, see Roper on Legacies, p. 484; see also 4 Kent's Com., 54, (marginal,) and his notes; also Man v. Man, 2 Stra., 905; Page v. Page, 2 P. Wms., 488; Owen v. Owen, 1 Atk., 494; Bain v. Lescher, 11 Sim., 397; Norman v. Frazier, 3 Hare, 84; Havcrgall v. Harrison, 7 Beav., 49; Hustler v. Tilbrook, 9 Sim., 368. ' 2 Bro. C. C, 658; Gardner v. Printup, 2 Barb. S. C. Rep., 83; Davis V. Kemp, Carth., 3; Buffar v. Bradford, 2 Atk., 220; Humphreys. Taylor, Ambl., 136; Dowsett v. Sweet, Ambl., 175; Morley v. Bird, 3 Ves., 628; Pemberton v. Park, 5 Binn., 607; but see Swift v. Duffield, 5 S & R., 38. * Corn V. Nase, 1 Ashm. Rep., 242; Frazier v. Frazier, 2 Leigh Rep. 642; Nelson v. Moore, 1 Ired. Eq. Rep., 31. BY IMPLICATION OF LAW. ^^"^ more properly considered under the title of cestuis que trust, etc. Where legacies have been paid under a misappre- hension as to the sufficiency of assets to pay the debts of the testator, the legatees may be required to contribute to make up the deficiency, provided it does not exceed the amount of their legacies : and, if necessary, they may be converted into trustees for such purpose.^ But in making these contribu- tions, the general legacies must first be exhausted, before the specific ones will be called upon to con- • tribute.^- A specific legacy is defined to be "the bequest of a particular thing or money specified and distinguished from all others of the same kmd; as a horse, a piece of plate, money in a purse, s^tock in the public funds, a security for money, which, with the assent of the executor, would immediately vest in the legatee.^ And a specific legacy may call for a specific thing, which alone can satisfy it^: as, "the brooch which I received from A. B.," or, " my horse Castor;- or may call for one of a certain species, as "a brooch," "a horse," "a diamond > Luptoa .. Lupton, 2 Johns. Ch., 614; Stuart .. Kiss.un 2 Barb 493; Wood .. Vandenburgh, 6 Paige, 277; Alexander .. Farr Jones E, 10^ ^ Roper on Legacies, 361; Spong v, Spong, 1 Dow. & Cl. 365, Willard s Ex'rs, 382; Lupton .. Lupton, 2 Johns. Ch., 614; McKay.. Green, 3 Johns'. Ch., 56; Livingston v. Livingston, 3 Johns. Ch., 148. ^ ' Ashton V. Ashton, Ca. Temp. Talbot, 152; Roper on Legacies Vol. I.. 190; and see Tifft .. Porter, 4 Seld, 518; Davis .. Cain, 1 Ired. Eq. Rep., 309; Robinson .. Addison, 2 Beav. 515; Partridge .. Partridge, Ca^Temp. Talbot, 226; Simmons .. Vallance, 4 Bro. C. C, 34d; Sibley .. Perry, 7 ""^^RiSids .. Richards, 9 Price, 219; Roper on Leg., 192; Willard's Ex'rS; 348. 600 CONSTITUTION OF TRUSTEES ring," which may he satisfied by the delivery of one of the species.^ Also a sum of money to be paid out of a particular fund, called a demonstrative legacy, is specific as to the legatee ; although it Avill not abate on the failure of the fund.^ The consequences of specific legacies are liable to be such, both in respect to the legatees and others interested, that the intention of the testator to make them specific, must be clear and unquestionable. The presumption, both in law and equity, is in favor of general legacies, as against specific ones.^ A j)erson holding under a voluntary conveyance is sometimes constituted a trustee for the grantor, even where there is no declaration of trust in the instrument. Although, where a voluntary convey- ance is fairly made, and there are no circumstances to show that it was not intended to be absolute, the court will sustain it,* yet equity does not favor the volunteer. And, if his claim depends upon an agreement which is executory, the court will not ' 2 Mad. Ch. Pr., pp. 7 aud 8; Toller, 301; Willard's Ex'rs, 348; Roper on Leg., 192. "^ Willard's Ex'rs, 348; Coleman v. Coleman, 2 Ves. Jr., 160; Roper on Leg., 193. ^Walton V. Walton, 7 Johns. Ch. Rep., 264; Tifft v. Porter, 4 Sold., 518; Enders v. Enders, 2 Barb. S. C Rep., 367; Smith r. Lampton, 8 Dana Rep., 69; Bradford v. Havnes, 20 Maine Rep.. 107; Cogdell v. Cog- dell, 3 Desauss, 373; Briggs v. Hosford, 22 Pick., 288; Stout v. Hart, 2 Halsted Rep., 422; Walker's Estate, 3 Rawle, 236; (see also Coleman ■z). Coleman, 2 Ves, Jr., 639, and Sumners's notes thereto;) Tifft v. Porter, 8 N. Y. Rep., 516. * Sowerbye v. Arden, 1 Johns. Ch. Rep., 240; Clavering v. Clavering, 2 Vera., 473; Cook v. Fountain, 3 Sw., 590; Young v. Peachy, 2 Atk., 256; Dummer v. Pitcher, 2 M. & K., 262; Buun v. Wiuthrop, 1 Johns. Ch., 329; Wood V. Jackson, 8 Wend., 9; Whelan v. Whelan, 3 Cowen,537; Sears v. Shafer, 1 Barb., 408; see Philbrook v. Delano, 29 Maine, 410. BY IMPLICATION OF LAW. 501 aid him/ and where one volunteer seeks relief against another volunteer, equity will not interfere, because, as between mere volunteers, there is no equity.'^ There has been considerable discussion whether a good and meritorious consideration will be suffi- cient to sustain a covenant to convey property, but the current of decisions in England is against the validity of such a covenant,^ while in America it would seem to be the other way."^ Where the grantor of a voluntary deed retains the possession of it until his death, coupled with circumstances which tend to show that he did not intend to part with it, or that the deed was ' Cook V. Fountain, 3 Sw., 591; Cecil v. Butcher, 2 J. & W., 565; Ed- wards V. Jones, 1 M. & Cr., 226; Dillon v. Coppin, 4 M. & Cr.,647; Hayes V. Kershaw, 1 Sandf. Ch. Rep., 258; Dennison v. Goehring, 7 Barr., 175; Ellison V. Ellison, 6 Ves., 656; Antrobus v. Smith, 12 Ves., 39; Scales v. Maude 19Jur.,1147; Crompton r. Vasser, 19 Alab, 259; Clark t^. Lott, 11 111 'l05; Darlington i;. McCoole, 1 Leigh, 36; Holloway i;. Headington, 8 Sim.' 324; Jefferys v. Jefferys, 1 Cr. Ph., 138; Boze v. Davis, 14 Texas. 331; Moore t;.Crofton, 3 Jones &Lat,, 442; Acker v. Phoenix, 4 Pa.ge, 308; Minturn v. Seymour, 4 Johns. Ch. Rep., 497; Yarborough v. West, 10 Geo.. 471; Read v. Robinson, 6 W. & S., 331; Forward v. Armstead, 12 Alab., 127; DuvoU v. Wilson, 9 Barb., 487. ^ See Cook v. Fountain, ut supra; Clavering v. Clavering, 2 Vern., 473; see ante, 36; Brackenbury v. Brackenbury, 2 J. & W., 391. ' Scales V Maud, 19 Jur.. 1147; Edwards v. Jones, 1 M. & Cr., 226; Dillon V. Coppin, 4 M. & Cr., 647; Holloway v. Headington, 8 Sim., 324; Jefferys v. Jefferys, 1 Cr. & Ph., 138; Moore v. Crofton, 3 Jones & Lat., 442; Smith V. Warde, 15 Sim., 56. Mlaycs V. Kershaw, 1 Sandf. Ch., 261; Taylor ... James, 4 Desau., 5; Caldwell V. Williams, 1 Bail. Ch., 175; Dennison ^. Goehring, 7 Barr., 175; Mclntvre v. Hughes, 4 Bibb., 186; but see Duvoll v. Wilson, 9 Barb., 487; Bufoi-d's Heirs v. McKee, 1 Dana, 107; Kennedy's Ex'rs v. Ware, 1 Barr 445; Campbell's Estate, 7 Barr., 100; see Fink v. Cox, 18 Johns., 145; Blue V. Pcneston, 24 Miss., (3 Jones,) 240; see Farrington v. Barr, 36 N. H., 86. 602 CONSTITUTION OF TRUSTEES made for other purposes than conveying the bene- ficial interest to the grantee, a trust will result to the grantor/ although it is held that the mere retaining the possession of the deed by the grantor will not be sufficient evidence to raise a trust in his favor.^ Whether a trust is to be raised in favor of the grantor in any given case, must depend upon the intention as gathered from all the circumstances. But a trust may be raised in favor of the grantor where the property is given in trust to a trustee, either by deed or will, and yet a trust is not declared as to all the proj)erty.^ In such case the donee cannot take beneficially, because the gift is expressly in trust;* and whatever remains after the jDurposes of the express trusts are satisfied, must revert to the donor, where it is by deed ; or, to the heir or next of kin, where it is by will.^ Whether a trust results to the grantor, the heir- at-law, the next of kin, or not, depends upon the intention as gathered from the instrument and attending circumstances ; for it is the intent which guides the use. An examination of all the cases will show this distinction. Where the property is given in trust for the accomplishment of certain 'Birch V. Belgrave, Ambl., 266; see Baylis v. Newton, 2 Vera., 28; Souverbye v. Arden, 1 Johns. Ch. R., 240; Uniacke v. Giles, 2 Moll.. 267; see ante, p. 36; HoUoway v. Headington, 8 Sim., 324. ^ Bunn V. Winthrop, 1 Johns. Ch. Rep., 329; Sear v. Ashwell, 3 Sw., 411; Souverbye v. Arden, 1 Johns. Ch. Rep., 240. ^ 2 Jarm. Pow. Dev., 32. * Gladdhig V. Yapp, 5 Mad., 59. ' Mapp V. Elcock, 2 Phill., 793; Dawson v. Clark, 18 Ves., 254; Crad- dock V. Owen, 2 Sm. & Giff., 247. BY IMPLICATION OF LAW. ^^^ purposes, when those purposes are accomplished, the balance will revert to the donor, the heir, or next of kin, according to circumstances.'^ But where the property is given, subject to, or charged with the accomplishment of such purposes, the donee takes the beneficial interest, subject to such charges, and the balance will not revert.^ This distinction is most obvious, as expressing the inten- tion of the donor or testator, and should not be confounded with the old English doctrine, that the mere appointment of an executor gave to him, prima facie, the beneficial title to the residuum of the personal estate. That doctrine is now repudiated m England, or rather has been changed by statute.' Sometim'es the language may be such as to leave it in doubt whether the testator intended to give the property, in trust for certain purposes, or whether be intended to give it subject only to charges for such purposes. In such cases, other circumstances may be examined to aid in determining such inten- >Km<^ .. Denison, 1 V. & B., 272; Hobart v. Countess of Suffolk 2 Vern 644; King .. Mitchel, 8 Pet. Rep„ 349; Nash .. Smith, 1/. Ves., 29; Chalmers v Brailsford,18 Ves., 368; Sherrard t^.Lord Harborough, Ambl., Chalmers v. era , Craddockz). Owen, 2 Sm. & 165; Attorney General iJ. Bowyei, 5 vcs., /-J, „,,.i tt ^ Giff. 246; Countess of B..Hungerford, 2 Vern., 64.; Holhday .. Hud- Ton 3 VeL, 210; Eleock .. Mapp, 3 H- & L. Cas., 492; Hill .. Cock, 1 V. & B , 173; AVilliams v. Chitty, 3 Ves., 546. ^ llinSeeDunlop, (Penn.,) 211; Del. Rev. Code, 1852, Art., 1813; N. Y. Kev. St., 1846, VoL II., p. 159, sec. 79. "Langham v. Sanford, 17 Ves., 435; Abbott v. Abbott. 6 Ves., 343; Farrington v. Knightly, 1 P. Wms., 545. 506 CONSTITUTION OF TRUSTEES testator, by giving to the executor a part, evinced an intention not to give him the whole, has been the subject of numerous exceptions. It is not diffi- cult to conceive of numerous reasons why a testator might wish to give to his executor a particular legacy for certain particular reasons, and also make him his residuary or general legatee ; and he might wish to give to him both, as executor in one instance, and as an individual in another/ Where there are devises and bequests, which include the whole of the testator's real and personal estate, and trusts are declared, as to a part only, or as to the whole, and there is a failure, either from lapse or from the illegality of the purposes of the trust, or from the insufficiency of the declaration thereof, or for any other cause, difficult questions often arise between the heir, the next of kin, and the residuary legatee or devisee, as to whom this benefit shall result. The discussion of these ques- tions more properly belongs to a subsequent chap- ter on cestuis que trust. In this place those considerations only are to be considered, which ' Gibbs V. Rumsey, 2 V. & B., 294; see Lord Eldon in King v. Denison, 1 V. St B., 277. To see the discussion on this subject, see Langham v. Sanford, 17 Ves., 435; Seely v. Wood, 10 Ves., 71; Blinkhorn v. Feast, 2 Ves. Sr., 27; ^Nisbett v. Murry, 5 Ves., 149, et seq. ; Lynn v. Beaver, T. & R., 63; Jfartin v. Rebow, 1 Bro. C. C, 154; Oldman v. Slater, 3 Sim., 84; Soutlicott V. Watson, 3 Atk., 226; Benning v. Benning's Ex'r, 14 B. Monr., 585; Griffith v. Rogers, Free. Ch., 231; Rawlins v. Jenkins, 13 Ves., 39; Hennersholtz's Estate, 4 Harr., (Pa.,) 435; Ralston v. Telfair, 2 Dev. Eq., 255. As to the application of this rule to a devisee who also is a legatee, see 2 Jarm. Pow. on Dev., 40. As to the heir as legatee, see Starkey v. Brooks, 1 P. Wms., 390; Randall v. Bookey, 2Vern.,425; Kellett v. Kellctt, 1 Ball & B., 543; S. C. on App'I, 3 Dow. P. C, 248; but see Rogers v. Rogers, 3 P. Wms., 194. BY IMPLICATION OF LATT. 507 convert the donee into a trustee by implication or construction of law. Another class of resulting trusts arise, by which the donee is converted into a trustee for other beneficiaries than those named by the testator, by reason of the insufficiency of the testator's declara- tion. In these cases the donee is expressly declared to take in trust, but the trusts are so imperfectly or ineffectually declared that they cannot be executed. Thus, a leading case of this class is that of Morice V. the Bishop of Durham,^ where the testatrix bequeathed all her personal estate to the Bishop of Durham, his executors, etc., upon certain trusts, and the ultimate residue to be appropriated by the Bishop to " such objects of benevolence and liberal- ity as he, in his discretion, should most approve." In this case the objects of the trust were too inde- finite for the court to undertake its execution, and the Bishop was decreed to hold the residue in trust for the next of kin.^ Where the testator has declared expressly that he has given the estate in trust, to the executors, to be appropriated by them, in such manner, at such time, and for such purposes, as they, in their discretion, should think fit, the courts have gone to very great lengths in frustrating the will and intent of the testator, for no other reason than that he had used the words "in trust" in connection with the > 9 Ves., 399, and 10 Ves., 522; see also Ellis v. Selby, 7 Sim., 352, and S. C. on App'l, 1 M. &Cr., 286; Stubbs v. Sargon, 2 Keen, 255, and on App'l, 3 M. & Cr., 507 ; Fowler v. Garlike, 1 R. St M. , 293 ; James v. Allen, 3 Mer., 17; Vezey v. Janson, 1 S. & St., 69. 508 CONSTITUTION OF TRUSTEES gift ; at least, the English authorities have done so.^ But in the case of Ralston v. Telfair^ it was held that where a testator had given the residue of his estate, after certain trusts were satisfied, to his executors, "to be disposed of as they think pro- per," the beneficial interest was given to them. In the case of James v. Allen,^ the testatrix bequeathed all her personal estate to her executors, in trust, to be by them applied and disposed of for and to such benevolent purposes as they, in their integrity, may unanimously agree on." In the case of Ellis v. Selby,* the testator gave a fund to his executors upon certain trusts; and if those trusts should fail, his said trustees should apply the fund to and for such charitable or other purposes as they should think fit, ^'■without being accountable to any person whomsoever for such disposition thereof." So likewise, in the case of Vezey v. Janson,^ the testator gave the residue of his estate to his execu- tor, upon trust, in default of appointment by him, "to pay and apply the same in or toward such charitable or public purposes, as the laws of the land would admit of, or to any person or persons, and in such shares, etc., as the executor, in his dis- cretion, will, and pleasure, should think fit." So, also, in the case of Fowler v. Garlike,'' the testator made a gift to his executors, upon trust, " to dispose * See preceding note. ''2Dev. Eq.,255. = 3Mer.,17. * 7 Sim., 352, and 1 M. & Cr., 286. MS. & S.,69. •1 R. &.M.,232. ^09 BY IMPLICATION OF LAW. of tlie same, at sucli times, and in such manner, and for such uses and purposes as they shall think fit ; it being my will that the distribution shall be left entirely to their discretion." In these and the like cases, the courts have held that these disposi- tions to the executors were upon trust, notwith- standing the palpable meaning and intent ot the testator to commit the disposition of the property absolutely to their will and discretion, without being subject to the control of any person or per- sons whatever. 510 ACCEPTANCE AND DISCLAIMER OF TRUSTEES. CHAPTEE III. ACCEPTANCE AND DISCLAIMER OF TRUSTEES. Before the character and liabilities of a trustee of an express trust can attach to an individual, he must accept the office. For no person can be com- pelled to accept an estate in property of any char- acter, or to act in any official or fiduciary position without his consent. Therefore, where an estate is conveyed, by whatever means of assurance, to a person in trust, no title vests in the proposed trus- tee, unless he expressly or by implication, accepts the office and thereby assumes the liabilities thereof.^ The acceptance of the office of trustee may be proved by the declarations or other acts of the trustee. When the trust is created by deed, and the trustee intends to accept the appointment and execute the trust, the proper way to manifest that intention is to join in the execution of the deed. This will in general be necessary when the instru- ^ Burritt V. Silliman, 3 Kern., 93; Cooper v. McClure, 16 111., 435; see De Peyster v. Clendining, 8 Paige, 295; Bulkley v. De Peyster, 26 Wend., 21 ; King v. Donnelly, 5 Paige, 46; McCubbin v. Cromwell, 2 Gill. & Johns., 157; Trask v. Donoghue, 1 Atk., 370; but see Judson v. Gibbons, 5 Wend., 224. ACCEPTAKCE AND DISCLAIMER OF TRUSTEES. SH ment contains covenants to be macle and executed by the trustee. But when the instrument contains nothing of the kind, joining in the deed is unneces- sary/ any act by which the trustee manifests an intent to acquire or exercise any influence in the management of the trust property, will tend to fix upon him the responsibilities of the trust.^ If the trust is created by will, and the same per- son is appointed executor and trustee, the probate of the will will be deemed an acceptance of the trust. Such, at least, will be the case, unless the office and duties of executor and trustee are so dis- tinct from each other that the oflice of the one can be acceiDted, and the other declined, at the same time.^' In some states the trustee is required to give bonds, and if he fails to do so he is deemed to have declined the trust.^ Under such circumstances a different rule would obtain. Where a person is ap- pointed trustee, and he does not intend to accept the trust, great care must be had that no action on his part in respect to the trust property may fix him with the trust. Any act which would render it doubtful whether or not he intended to act as ^ Flint .. Clinton Co., 12 N. H., 432; Lefflev .. Armstrong, 4 Iowa Rep., 482. -r- o -D Kr TT r'Vn ^ ''4fl' O'Neil v. Henderson, lo ^Christian V. Yauncey, 2P. & U., (Va.,> ^iu, ij ixt,ii Ark.. 235. ' Hanson v. Worthington, 12 Md., 418; Williams .. Conrad 30 BarK^S. C, 524; Booth .. Booth, 1 Beav., 128; Williams .. Nixon 2 Beav 4..; Worth V. M'Aden, 1 Dev. & Batt. Eq., 209; Judson .. Gibbons, 5 Wend., 226. * Mass. Rev. Stat., 1836, p. 444; Green v. Borland, 4 Mete, 330. 512 ACCEPTANCE AND DISCLAIMER OF TRUSTEES. trustee would be liable to be construed against him/ The principles to be observed are : 1, the law will compel no person to accept an estate, either as trus- tee or otherwise, against his will ; 2, every gift by deed or otherwise, is supposed to be beneficial to the donee, and therefore the law presumes the estate is accepted by the person to whom it is expressed to be given, unless the contrary is made to appear f 3, a refusal or disclaimer vests the estate or trust in the accepting or continuing trustee or trustees. Therefore, before one, who has been named as trus- tee, consents to do anything in respect to the trust, he should first, unless he intends to accept the same, make his refusal to accept so clear and definite, that by no possibility the trust can vest in him.^ Where a trustee has so disclaimed that the trust has vested entirely in those who accept it, after that, no act of his can divest the accepting trustees of the title. Thus, in the case of Dove v. Everard."* Everard and Manby were appointed trustees and executors by the testator. Everard being a creditor, concluded not to act, and executed a deed of disclaimer as to * Read v. Truelove, Ambl., 417; Lewin on Trusts, 232; Chaplin v. Givens 1 Rice Eq., 154; Conyngliam v. Conyngham, 1 Ves., 522. * Hill on Trustees, 214; Thompson v. Leech, 2 Ventr., 198; Townson v. Tickells,3 B.& Al.,36; 4 Cruise Dig., 404, &c.; Wilt i). Franklin, 1 Binn., 602. ^ Read v. Robinson, 6 Wats. & Serg., 331; Eyrick v. Hetrick, 13 Penn. St., 494. * 1 Russ. &, Myl., 231; in re Van Schoonhoven, 5 Paige, 559. That such disclaimer vests the estate in those who accept, see Smith v. Wheeler, 1 Ventris, 128; Hawkins v. Kemp., 3 East, 410; Thompson v. Tickell, 3 B. & Aid., 31; King v. Donnally, 5 Paige, 46; Putnam Free School v. Fisher, 30 Maine, 520; Jones v. Moflet, 5 S. & R., 523; Brumer v. Sterm, 1 Sandf. Ch.. 357. ACCEPTANCE AND DISCLAIMER OF TRUSTEES. 513 the real estate, and renounced probate in the Eccle- siastical Court. Manby alone proved the will ; but he was altogether unacquainted with the managing of farming stock or with its value. Everard, after thus disclaiming and renouncing, as the agent of Manby, took an active part in converting the assets into money, and accounted with Manby for all moneys which had come to his hands. For thus acting in the management of the trust property, he was made a party defendant to a suit for the admin- istration of the assets. The M. R., Sir John Leach, was of the opinion that Everard had not acted as trustee or executor, and dismissed the bill as against him, with costs. '^ The case cited by the counsel' in the case of Dove v. Everard differed in this. True, Dove did not renounce until after he had fixed him- self with the trust, by administering in part. Thus also in re Hadley's trust,^ Mrs. Hadley by her will, dated 26th Dec, 1831, bequeathed certain leasehold estates and personal property to F. Blakesly and T. C. Brown, on certain trusts therein mentioned: and in said will gave the following power for the ap- pointment of new trustees. " If the trustees hereby appointed, or to be appointed as hereinafter is men- tioned, or any of them, their, or any of their heirs, executors, administrators or assigns shall die, or desire to be discharged from, or refuse, or decline, or become incapable to act in, the trusts, powers ^ See preceding note. '' Reed v. Truelove, Ambl., 417. = In re Hadley's trust, 9 Eng. Law and Eq. Rep., 67; 16 Jur., 98; 21 Law J. Rep., (N. S.,) Chan. C, 109, 33 514 ACCEPTANCE AND DISCLAIMER OF TRUSTEES. and authorities hereby in and to them respectively reposed and given as aforesaid, before the said trusts, poAvers and authorities shall be fully executed, then and so often as the same shall happen, it shall and may be lawful to and for the then surviving or continuing trustee or trustees of my said will, or if there shall be no surviving or continuing trustee, then the trustee so desiring to be discharged, or re- fusing or declining, or becoming incapable to act as aforesaid, or the executors or administrators of the last surviving or continuing trustee, by any deed, &c., from time to time, to nominate, substitute or appoint any other person or persons to be a trustee or trustees in the stead or place of the trustee or trustees so dying, or desiring to be discharged, or refusing, declining, or becoming incapable to act as aforesaid." T. C. Brown died in the lifetime of the testatrix. Mrs. Hadley died in November, 1849. Blakesly, by deed dated 17th December, 1849, re- nounced and disclaimed the trusts of the will, with the exception following. " Save and except the power given by the said will to the said F. Blakesly (he being the sole person now living named in said will as trustee, and declining to act), for the purpose of nominating other persons to be trustees in the stead of the said T. C. Brown, deceased, and the said F. Blakesly. And by the same indenture, Blakesly appointed W. H. Brown and J. Whitmore to be trustees in stead, &c., and he assigned the trust property to them. Blakesly had renounced probate of the will, and had never acted otherways than in the appointment of the trustees and the assignment ACCEPTANCE AND DISCLAIMER OF TRUSTEES. 515 aforesaid. There being doubts as to the regularity of this proceeding in the appointment of the new trustees, a petition was presented to the court ask- ing their appointment by the court. Parker, V. C. considered the appointment to be regular and valid. That the words in the power, "trustees hereby ap- pointed," were descriptive of the persons, &c., who were authorized to exercise the power of appoint- ment, the same as though she had named them by their names. That on the question whether one who renounced the trust, &c., could properly make the appointment, the testatrix herself had distinctly authorized it, &c. As to the vacancy happening by the death of a trustee during the lifetime of the testatrix, he thought that was as much a contingency provided for as though it had taken place after the death of the testatrix.^ But it is important that no act connected with the disclaimer shall fix the trust upon the renouncing trustee. In the case of Crewe V. Dicken," Wheeler, Crewe and Boydell, and the survivor of them, &c., were appointed trustees to sell certain estate, &c. Boydell died, and Wheeler being unwilling to act in the trust after the death of Boydell, by indentures of lease and release, con- veyed and released all and singular the said premises, and all his said estate and interest therein to Crewe, the other trustee. Crewe contracted the estate to Dicken, but Dicken refused to take the conveyance * See ante, and authorities. «4 Ves., 96; see Smith v. Wheeler, 2 Vent., 128, and 2 Kcbel, 772; Adams v. Taunton, 5 Mudd., 43-5; Nicholson v. Wordsworth, 2 Swanst., 365; Bonifant v. Greenfield, Cro. Eliz., 80. 516 ACCEPTANCE AND DISCLAIMER OF TRUSTEES. unless Wheeler would join in the receipt of the pur- chase money, which he declined doing. Crewe filed his bill against Dicken for a specific performance. The Lord Chancellor (Loughborough), under the circumstances, refused the prayer of the bill. He thought there would have been no difficulty in the case if Wheeler had first renounced or disclaimed. Then the whole estate would have been in the plaintiff Crewe, exactly as though the other two trustees had died in the lifetime of the testator.^ But according to the way he had managed it, he had accepted the trust, and conveyed away the estate : and that part of the trust which consisted in the application of the money he could not convey away, and that although the hazard was not probably great, he could not compel the purchaser to incur it ; taking the title with a knowledge of the trust, he would be bound to see to the application of the money. In the case of Urch v. Walker,^ John Frankling, by his will, gave and bequeathed unto Robert Blackburrow and Edward Wood, the sum of jellOO upon trust, to invest the same, and pay the interest thereof to his daughter Mary, then the wife of John Urch, for her separate use for life; and after her decease, or in case she should incumber the same, to apply the interest in the maintenance of such of her children as should be then living (excepting her children by a former marriage) until the youngest should attain the age of twenty-one, Leggett V. Hunter, 19 N. Y. Rep., (5 Smith,) 445. 3 Mylne &, Craige, 702. ACCEPTANCE AND DISCLAIMER OF TRUSTEES. 517 when he directed the capital to be equally divided among them. And among other devises and be- quests, in particular, he devised the dwelling house in which he then lived, with the garden, orchard and close of ground thereunto belonging, situate at Banwell, and held under the Bishop of Bath and AVells upon a lease for three lives, unto the same trustees Blackburrow and Wood, to hold the same upon trust, to permit and suffer his wife, Ann Frankling, and her assigns, to receive the rents and profits of the premises during her life, and after her decease, to apply the same in the maintenance and education of his grandson, John Frankling Hewlett until he should attain the age of tweny-one years, when he directed his said trustees or the survivor, &c., to convey the premises to his said grandson, John Frankling Hewlett, his heirs and assigns, and also to pay over to him the unapplied rents and profits accrued during his minority. The testator gave the residue of his estate and effects to his wife Ann Frankling, whom he appointed his sole exe- cutrix. The bill was filed by the parties interested in the legacy of ^1,100, and they sought to make Black- burrow, surviving trustee appointed by the will, per- sonally responsible for the legacy, on the ground that he had accepted and acted in the trusts of the testator under the will. But there was no proof that either Blackburrow or Wood had ever acted in, or meddled with the trusts of the will, except as follows: On the 18th day of May, 1822, the said trustees, Blackburrow and Wood, at the request of 618 ACCEPTANCE AND DISCLAIMER OF TRUSTEES. John Frankling Hewlett, who had arrived at 'the age of twenty-one years, and, according to the terms of the will, was entitled to a conveyance of the dwellino- house, &c., had, by an indenture of release, of that date, conveyed the premises to said Hewlett. It was recited among other things in this indenture, that this conveyance was made by the trustees, to Hewlett, because by virtue of the said will, the legal estate in said messuage and lands was outstanding in the trustees, and therefore they had consented to make such conveyance. Blackburrow proved by his solicitor, that before executing' the deed of re- lease, he had taken counsel upon the question whether it would be safe for him and Wood to exe- cute such release ; and that counsel advised him that it would be safe. The vice-chancellor held that Blackburrow had accepted the trusts of the will. The case was ap- pealed and came before the Lord Chancellor in June, 1838. The Lord Chancellor remarked : " The ques- tion is, whether the execution of this deed was not of itself an acceptance of the trusts of the will," " I think it would be sanctioning a gross deceit on the part of the appellant (Blackburrow) if it were to be construed otherwise, because it was for the purpose of giving effect to the devise of the pro- perty. If the trustees never did accept the pro- perty, then they had no legal estate in them, and they had no means of doing that which they pro- fessed to do, and which by this deed, they held out they were doing." The Lord Chancellor distinguished this case from ACCEPTANCE AND DISCLAIMER OF TRUSTEES. 519 that of Nicolson v. Wordsworth^ where one of the three trustees, being desirous of throwing off the obligations of the trust, and disclaiming, executed a release to the other trustees. He says, the rea- soning of Lord Eldon in the case of Nicolson v. Wordsworth " has no application to the case of a person who is not repudiating, but acting upon the interests which the will purports to give." That in the case before the court, Blackburrow and Wood, the trustees named in the will, upon the face of the instrument, do not profess to repudiate the trust, but recite the property vested in them by the will, and, that in execution and pursuance of the trust, they executed the deed in question. It is said there is a recital in the deed that he had not intermeddled. But, remarks the Chancellor, there is no recital that he never intended to intermeddle, or that he exe- cuted the deed because he disclaimed the trust; on the contrary the reason assigned is that the party having attained twenty-one, "it became necessary for the defendant and Wood to act in the trust de- clared by the said will, and in fact they never inter- meddled therein." So far, therefore, from this in- strument showing any intention on his part to repudiate the trust, the appellant there expressly says that he executes it in pursuance of and acting upon the trusts, and is dealing with the property as the testator intended he should deal with it."^ The case of Nicolson v. Wordsworth^ to which ' 2 Swanston, 365; see Doe d. Wyatt v. Hogg, 5 Bing. N. C, 564. " Gibson v. Walker, 20 N. Y. Rep., 476. ^ 2 Swanston, 365. 520 accepta:nce and disclaimer of trustees. the Lord Chancellor refers, was this: Richard Wordsworth, by will dated 6th May, 1816, devised certain premises to Christopher Wordsworth, Wil- liam Wordsworth and Thomas Hutton, and their heirs, in trust, to sell, and apply the money pro- duced by such sale in aid of the personal estate towards payment of his debts, funeral expenses, and certain legacies, with a declaration that the receipts in writing of his trustee or trustees, for the time beino-, should be a good discharge to the purchaser of the premises, and that it should be lawful for the trustee or trustees, for the time being, by any writing or writings, to appoint a new trustee or trustees in lieu of any trustee or trustees who should die, or desire to be discharged, or refuse or decline, or become incapable to act, and the testator appointed his wife, Jane Wordsworth, his executrix. Jane Wordsworth, Christopher Wordsworth and William Wordsworth alone proved the will ; but Thomas Hutton renounced probate and declined to act in the trusts of the will ; and by indenture of release, dated 23d December, 1816, made and executed be- tween Hutton and Christopher Wordsworth, and William Wordsworth, he bargained, sold, released, quitclaimed and conveyed to them, &c., the premises. In December, 1816, Christopher Wordsworth and William Wordsworth advertised the premises to be sold by them as devisees in trust, named in the will of R. Wordsworth, at auction, and that the highest bidder, being the purchaser, should be let into pos- session on the 25th March, then next. In pursuance of said notice John Nicolson was declared to be the ACCEPTANCE AND DISCLAIMER OF TRUSTEES. 521 purchaser, at the sum of i;305. Nicolson, after signing the memorandum of purchase and under- taking to perform on his part, &c., was unwilling to take the conveyance of the Wordsworths alone, and wished Hutton to join in the conveyance and receipt, and brought his suit for compelling him to do so. The Lord Chancellor, Lord Eldon, remarked : " The question comes before the court in a singular shape. I understand Hutton was not a party to the contract; the plaintiff, therefore, cannot insist on his being a party to the conveyance. If the suit had been instituted by the defendants against the plaintiff, the court must have decided the question whether the defendants could make a good title. The plaintiff has filed his bill for specific perform- ance, himself insisting that his vendors cannot make a good title. When on a bill by a vendee, for spe- cific performance, it appears that the defendants cannot make a good title, there is no further ques- tion in the cause than who is to pay the costs." Lord Eldon proceeded to remark, extra-judicially : " The question is curious as a point in conveyancing. It seems to be taken for law from an older period than the date of Crewe v. Dicken,^ and sanctioned by Lord Hale,^ that if an estate is conveyed to two persons in trust, and one will not act as trustee, the estate vests in the other. If, therefore, the party executes a simple instrument, and under his hand and seal, declares that he disclaims, that is, dissents from being trustee, the fact must be taken to be that M Ves., 97. ' Smith V. Wheeler, 1 Vent., 128; 2 Keble, 772. 522 ACCEPTANCE AND DISCLADTER OF TEUSTEES. he is no trustee. But in Crewe v. Dicken, the difficulty occurred that instead of doing this the party conveyed his estate to the other trustees. Lord Loughborough thought that that was diflerent from a mere disclaimer, because he could not exe- cute a release without having assented to the con- veyance himself. In that case there were also spe- cialties. The individuals were particularly described and the directions for the form of the receipt were such as made it impossible that a proper receipt could be given, unless the trustee who had dis- claimed, joined. " If the essence of the act is disclaimed, and if the point were res Integra, I should be inclined to say that, if the mere fact of disclaimer is to remove all difficulties and vest the estate in other trustees, a party who releases, and thereby declares that he will not take as trustee, gives the best evidence that he will not take as trustee. The answer that the release amounts to more than a disclaimer is much more technical than any reasoning that de- serves to prevail in a Court of Equity." Lord Eldon proceeds to remark further, " My opinion is, that if a person, who is appointed co-trustee by any instrument, executes no other act than a conveyance to a co-trustee, where the meaning and intent of that conveyance is disclaimer, the distinction (be- tween release and disclaimer) is not sufficiently broad for the court to act upon. I can find no case which has decided, nor can I see any reason for deciding, that, where the intent of the release is disclaimer, the inference that the releasor has ACCEPTANCE AST) DISCLAIMER OF TRUSTEES. 523 accepted the estate shall prevent the effect of it. The decree iu Crewe i*. Dicken did not proceed on this point only. The words^ describing the persons by whom the receipt was to be given were very- special;^ in that case if two out of the three trus- tees had died, the third having previously released to them, beyond doubt that survivor must, under the words, have given the receipt, though he did not continue trustee. I think there is no case in which judgment has been pronounced on the distinction between a disclaimer and a release, and that where the intention is disclaimer there ought to be no distinction.*' Upon an examination of these cases, there would seem to be no essential difference of principle in the thi-ee cases examined at length. In the case of Crewe r. Dicken, Lord Roslyu could not find that Sir William Wheeler had disclaimed, or any where signified an intention to disclaim. He had only executed a release, which it would not have been necessary for him to do had he disclaimed ; as no estate would then have vested in him. In the case of Nicolson v. Wordsworth, Hutton renounced probate, and declined to act in the trusts of the will, and executed a release to the other trustees ; and Lord Eldon treated the i^elease of Hutton as, in essence, an act of disclaimer, and as executed for that purpose. When a Court of 'Do direct. &c... that the reivipt or receipts of the said Sir William Wheeler. OffleyCrexre and Thomas BoydelL and the survivor of them. &c., of the purchase money, &c., shall be a full and.snfficient discharge, Su;., and the purchaser, &c., shall not be further ans-wTerable, &c.. iipon the trusts. &c. 524 ACCEPTANCE AND DISCLAIMER OF TRUSTEES. Equity finds clearly what the parties intend to do by the execution of an instrument, in the absence of fraud, &c., they will not hesitate to give effect to that intent, if it be legal and proper. In the case of Urch V. Walker, Lord Coltenham, Chancellor, found a wide distinction between that case and the case of Nicolson v. Wordsworth. He finds that Blackburrow and Wood professed to act in the trusts of the will, and in virtue of the powers conferred upon them by it ; and for the purpose of executing a part at least of the trusts, which they could not do without accepting the trusteeship. From the foregoing it will be seen how important it is that one who does not intend to accept the office of trustee should carefully abstain from any and every act which may tend to fix him with the trust. He should not attempt to act as agent for any of the trustees in the premises, until he has most unequivo- cally disclaimed, so as to make it impossible for him to be considered as acting in the character of trustee.^ It is a principle well settled that a trustee cannot limit his acceptance of the trust if he accepts at all. For, if he interfere at all in the management of the trust, he will be deemed to have accepted the entire trust.^ ' Where several executors are appointed under a will, and invest«d with general powers, &c., and all decline but one, the powers pass to the one accepting, and he can execute them. Leggett v. Hunter. 19 N. T- Rep., (5 Smith,) 445. "" Urch V. Walker, 3 Mylne & Cr., 702; Doyle v. Blake, Scho. & Lefr., 231; Van Horn v. Fonda, 5 Johns. Ch. Rep., 389; Champlain v. Givens, 1 Rice Eq., 154; Flint v. Clinton Co., 12 N. H. Rep., 432; Lattimer v. Hau- sen, 1 Bland., 51; Cummins v. Cummins, 3 J. & Lat., 64. ACCEPTANCE AND DISCLAIMER OF TRUSTEES. 525 But, in case two persons are named as trustees, and one of them renounces and disclaims, afterward he may act as the agent of the one who accepts the trust without making himself responible as trustee. The principle is a plain one ; by the disclaimer the entire estate is vested in those who accept the trust, and cannot afterwards be divested by the acts of the disclaiming party. Thus, in the case of Dove V. Everard,' Everard and Manby were appointed trustees by the testator ; but Everard being a credi- tor, declined and renounced the trust ; but after- wards took an active part as the agent of Manby, in the conversion of the assets into money, &c., and accounted with Manby. The court held that Eve- rard having renounced, &c., had not made himself liable as trustee. In the case of Lowry v. Fulton,^ a testator, resident in India, appointed Lowry, Case- ment and Fulton his executors and trustees. Case- ment proved the wdll in India. James Lowry proved the will in England. Fulton never proved the will. Fulton, at the time of the testator's death was a partner in the house of Mackintosh and company, Calcutta, who were the testator's bankers and money agents. Shortly after the death of the testator, Fulton retired from the partnership, and ' Rnss. & Mylne, 231; Graham v. Kebele, 2 Dow. P. C, 17; Kilby v. Stanton, 2 Young & J., 75; also 2 Williams' Exr., 1291-1301; see also Webster v. Vandeventer, 6 Gray, 428; see also Ochiltree v. Wright, 1 Dev. &Bat., 336. -9 Sim., 115; see also Lewin on Trusts, p. 231; Stacy v. Elph, 1 M. & K., 195; Dove v. Everard, 1 Russ. and Mylne, 231; Orr v. Newton, 2 Cox, 274. 526 ACCEPTANCE AND DISCLAIMER OF TRUSTEES. removed to England, where he enterd into partner- ship with Richards, Mackintosh and company, London, who were the correspondents and agents of Mackintosh and company, Calcutta. Ten years after this he died, without ever having proved the will. While a member of the firm in London, he paid some of the testator's legacies to persons in England ; and in order to satisfy a legacy given by the testator upon certain trusts, he invested the amount in stock in the names of Casement and himself, as trustees ; but the payments, &c., were made by the direction of Casement, and out of re- mittances sent by him to the firm of Uichards, Mackintosh and company. Mackintosh and com- pany, Calcutta, failed, and it was sought to charge the estate of Fulton, upon the ground that he had accepted and acted in the trust of the will. But the Court were of the opinion that Fulton had only acted as the agent of Casement, and not as an exe- cutor or trustee of the will, and consequently that he was not responsible for losses occasioned to the estate by the failure of M. & Co. The disclaimer, to make it safe for one who does not intend to accept the trust, to act as the agent of the trustee, must be such an one as vests the estate in those who accept the trust. A mere refusal to act may not be sufficient. Thus, a trustee of real estate appointed by will, may assert his interest in the estate, and proceed to execute the trust at any time, although he had previously refused to accept the trust, if he has not released his estate ACCEPTANCE AND DISCLAIMER OF TRUSTEES. 527 and interest to the other trustee, or executed a deed of disclaimer.^ And as a disclaimer, which vests the estate in those who accept the trust, puts it out of the power of the renouncing trustee to reinvest himself with the estate and character of trustee, so, likewise, when a party has once fixed himself as trustee by acts which amount to an imjolied acceptance of the trust, he cannot afterwards divest himself of that character by disclaimer or renunciation" without the consent of the cestuis qui trust, or the sanction of the court.^ It is impossible to consider in this work all the cases that have been adjudicated on this subject. The acts by which a nominated trustee may fix upon himself the character and responsibilities of a trustee are so various that they cannot be specified in detail, especially as each fact is to be interpreted in the light of circumstances attending upon it. Thus, if a person, having notice of his appointment as trustee, should continue to receive the income * Judson V. Gibbons, 5 Wend., 224; 1 Cruise, 539; 10 B.Monroe, (Kent,) Rep., 327; but see Townson v. Tickell, 3 B. & A. 36; Bonifant v. Green- field, Cro. Eliz., 80; Bingham v. Clanmorris, 2 Moll., 253; but see Burritt V. Silliman, 3 Kern., 93. * Doyle V. Blake, 2 Scho. & Lefr., 231; Stacj- v. Elph, 1 M. & K., 196; Conyngham v. Conynghara, 1 Ves., 522; Cruiger v. Halliday, 11 Paige, 319; Chaplin v. Givens, 1 Rice Eq., 133; Shepherd v. McEvor, 4 J. C. Rep., 136. ^ Lewin on Trusts, 260, 465; 4 Kent's Com., 311 ; Doyle v. Blake, 2 Sch. & Lefr., 230, 245; Bradford v. Belfield, 2 Sim., 264; Chalmer v. Bradley, 1 Jac. & Walker, 51, 68; Moran v. Hays, 1 J. C. R., 339; Shepherd v. McEvers, 4 Johns. Ch. R., 136; Willis on Trustees, 144; Bampton v. Bir- chal, 6 Lond. Jour., 815; Strong v. Willis, 3 Florida Rep., 131; Latimer V- Hauson, 1 Bland., 51. 528 ACCEPTANCE AND DISCLAIMER OF TRUSTEES. arising from the trust estate, without first having unequivocally renounced the trust, he would be deemed to have accepted it. This was the case in Conyngham v. Conyngham ; ^ or if he interfere with the management of the trust property, by ordering it to be sold, and giving directions, implying author- ity or ownership.^ Again, where a person was present when an instrument was read, by which he was made trustee, and he tacitly acquiesced in the appointment, his assent is so strongly presumed that a very slight meddling with the affliirs of the trust would fix upon him the responsibilities of trustee.^ The rule is this : Where there is a volun- tary interference with the subject matter of the trust, by the person nominated, that interference will convert the person into a trustee, unless such interference is not palpably referable to some other ground than the execution of the trust.* It has been stated that where a trust is created by will, and the same person is appointed exe- cutor and trustee, the probate of the will by him would be deemed an acceptance of the trust.^ But merely proving the will without doing anything more, is not sufficient to constitute a person an ' 1 Ves., 522; see Lord Montfort v. Lord Cadogan, 19 Ves., 638. ' James v. Frearson, 1 N. C. C, 375. " Idem, 1 N. C. C, 375; see also Harrison v. Graham, 1 Pr. Wms., 241, n., 6th ed.; Saddler v. Hobbes. 2 Bro. Ch. C, 114; Hanbury v. Kirkland, 3 Sim., 265; Penny t?. Davis, 3 B. Monr., 314; Balehen v. Scott, 2 Ves., 678; Lewin on Trusts, 226. ■* Lewin on Trusts. 231. ^ See Clarli v. Parker, 19 Ves., 1; Mucklcw v. Fuller, Jacob, 198; Booth V. Booth, 1 Beav., 128; Ward v. Butler, 2 Moll., 533. ACCEPTANCE AND DISCLAIMER OF TRUSTEES. 529 acting executor} But, if the will clothe the execu- torship with special trusts, as where a testator directs that his "executors" shall get in certain outstand- ing effects to be applied to a particular purpose, a person cannot make himself executor by proving the will, and then exempt himself from the trusts expressly annexed to the office,^ and if an executor be also trustee of real estate, he cannot desert the situation of trustee and accept only that of execu- tor ; the acting as executor is an acceptance of the entire trusteeship.^ In many of the States the statute requires the trustee and executor to give security before enter- ing upon the duties of the office, and in such cases there is a modification of the rule, as to an accept- ance of the trust.'* It has been held that, after a lapse of years, the acceptance of the trust by the trustee named in the instrument will be presumed, even where he had never executed the trust deed or done any act by which such an acceptance could be inferred.^ But this presumption may be rebutted by a disclaimer at any time. » Balchen V. Scott, 2 Ves., 678, and Sumner's note, (1,) and author- ities; Hovey v. Blakeman, 4 Ves., 607. ' Lewin on Trusts, 230; Mucklow v. Fuller, Jac., 198. ^ hewin on Trusts, ut supra; Ward ?;. Butler, 2 Moll., 533; Worth v. McAdin, 1 Dev. & Batt., N. Car. Rep. Eq., 208; Sears v. Dillingham, 12 Miss. 80; Van Horn v. Fonda, 5 J. Ch. Rep., 403. * See Carter v. Carter, 10 B. Monroe, Ky. Rep., 327; Monroe v. James. 4 Mumf., 195; but see Robertson v. Gains, 2 Humph., 381 ; Miller v. Mutch, 8Barr, 417; Roseboom v. Mosher, 2Denio,61; Williams v. Cushing, 34 Maine, 370; Deering v. Adams, 37 Maine, 265. ' In re Uniake, 1 Jones & Lat., 1; also re Needham, id., 32. 34 530 ACCEPTANCE AND DISCLAIMER OF TRUSTEES. Since a party, who is deemed to have accepted the trust, and taken upon himself the duties, powers and responsibilities of trustee, can, by no act of his own, divest himself of the office, it follows that a disclaimer must be construed to have been made at the time of the creation of the trust. For, if the estate has actually vested in the trustee so as to require any act on his part to divest himself of it, a disclaimer will be of no avail.^ Hence, in deter- mining the question as to time, when the estate vests in the nominated trustee, the law relates to the time the gift was made or the trust was created. It is, therefore, immaterial at what time the accept- ance or disclaimer is formally manifested, they will be deemed to have been actually made at the time the trust was declared and the trustee appointed.'^ When the trustee has been invested with the legal fee in the trust property, either by his express or implied assent, the law casts the estate upon the heir immediately upon the death of the ancestor, unless by some special provision of statute the law gives it a different direction,^ and in such case the heir cannot divest himself of the trust by a mere disclaimer, because the law casts the estate upon him. But should he wish to be relieved from the ' Reed v. Truelove, Ambl., 417; Stacy v. Elph, 1 M. & K., 195; Shep- pard V. M'Ever, 4 J. Ch. R., 136; Crugar v. Halliday,ll Paige, 314; Chap- lin V. Givens, 1 Rice Eq., 133. " Conyngham v. Conyngham, 1 Ves., 522; see Stacy v. Elph,l M. & K., 198. " Coke Litt., 9, a; also 3 Cruise Dig., 318; Rev. Stat., Maine, " Testa- mentary Trustees," ch. 3, sec. 5; N. Y. Rev. Stat., 5th ed., tit. " Uses and Trusts," sec. 87; Wisconsin R. S., 1858, ch. 84, sec. 24, p. 531, &c. ACCEPTANCE AND DISCLAIMER OF TRUSTEES- 531 burdens and responsibilities of the trust, it would be his duty to apply to the proper court where the needed relief might be obtained. We have already seen that where the will clothes the executorship with special trusts, that a person cannot make himself an executor by proving the will, and then renouncing the trusts connected with the office. So, likewise, when the subject matter of the trust is personal estate, the probate of the will of the trustee immediately vests in the executor, all his testator's trust estates ; and, on taking pro- bate of the will, he cannot disclaim these trusts ; but if he wishes relief he must come into court and obtain their discharge.^ Mr. Hill, in his excellent work on Trustees,^ re- marks that " it does not appear to have been ever decided whether the heir or personal representative of a trustee, who, during his life, had never acted or assented to the trust, can disclaim the trust after his death." "HoAvever," he says, " in the absence of any express decision on the subject, it is submit- ted that, upon principle, a disclaimer by the heir or personal representative of a donee in trust, may well be supported when the original donee has done no act in his life time to testify his acceptance of the trust. Wherever such a question could arise, it would almost invariably be found that the trust estate is limited to the heir or representative of the original nominee, and where the persons to take the estate by representation to the original trustees are ' Hill on Trustees, p. 223. ' Pages 221, 222; see Goodson v. Ellison, 3 Russ., 583. 532 ACCEPTANCE AND DISCLAIMER OF TRUSTEES. SO designated that there does not seem to be any valid reason why they should not also take the power to repudiate the gift equally with their ori- ginal trustee, provided that power has not been defeated by any previous act of the latter. And, even where there are no such words of limitation of the trust estate, the estate of the heir or personal representative is merely a continuance of the pre- vious estate ; and as part of that estate consisted of the power or right to call the office of trustee into existence by an act of acceptance, or to repudiate it by a proper act of dissent, the continuance of that estate in the heir or representative would not be perfect if it came to them shorn of that power or right. The argument derived from the absurdity and injustice of forcing a person to accept an estate against his will, applies with equal force to the heir and personal representative as to the original donee." ^ It has sometimes been contended that a dis- claimer by parol would not be sufficient where the freehold was in question. But it must be remem- bered that any conveyance- which depends upon the act of the parties, is imperfect for vesting the title, without the assent of the parties, either expressed or implied. That a gift even is not perfect at law until ratified by the assent of the donee.^ There- fore, before the title to the trust estate can vest in the trustee, he must assent to it impliedly at least. ' See preceding note. " Townson v. Tickell, 3 B. & Al., 31; Peppercorn v. Wayman, 13 Eng. L. and Eq. R., 199; Bigbec v. Cook, 2 Bing., (N.C,) 70; Adams v. Taun- ton, 5 Madd., 435. ACCEPTANCE AND DISCLAIMER OF TRUSTEES. 533 But where the trustees refuses expressly to accept the trust, or to have anything to do in the manage- ment of its affairs, there can be found no assent to the trust, either in express terms or by implication.^ But the disclaimer must be unconditional and unequivocal. Any claim to the estate, from what- ever source or of whatever character, will vitiate the disclaimer. If a trustee, therefore, intends to accept or refuse the trust, he should manifest that intention in a manner to remove all doubt, at the earliest time possible after he has been informed of his nomination ; and if he fails to do so, he must not be surprised if his doubtful conduct in the pre- mises is construed most strongly against him. Should he be in doubt as to the course he ought to pursue, he should first settle all those doubts before acting. It is held, however, that a trustee cannot be estopped from accepting the trust and entering upon its execution, until he has released or executed a deed of disclaimer.^ That a simple refusal to act is not sufficient.^ Mr. Hill remarks in his work on Trustees,^ "that the greatest care should be taken in the framing and wording a deed of disclaimer, lest its execution should have a directly contrary effect to that in- tended by the party, and thus fix him with an ac- ^ Smith V. Wheeler, 1 Ventr., 128; Rex v. Wilson, 5 Man. & K., 140; Doe, Ex. dem. Smith v. Smith, 6 B. & Cr., 112. * McCubbin v. Cromwell, 7 G. & J., 165; Judson v. Gibbons, 5 Wend., 226. ^ Hill on Trustees, 225. As to what conduct amounts to a disclaimer, see Stacy v. Elph, 1 M. & K., 195; Ayers v. Weed, 16 Conn., 291; Thorn- ton V. AVinston. 4 Leigh, 152; Moore v. Perry, 2 Murph., 85. 534 ACCEPTANCE AND DISCLAIMER OF TRUSTEES. ceptance of the trust when it was his object to renounce." " For this purpose the deed should merely recite the deed or will by which the dis- claiming party was appointed trustee, and after stating that the disclaiming party had never exe- cuted the instrument (if a deed), and had never assented to or accepted or acted in the trust, and never intended to do so, it should witness that he had, and thereby did absolutely renounce and dis- claim the estate and trust expressed to be given or reposed in him by the deed or will. The introduc- tion or addition of any release or conveyance of the trust estate to the co-trustees or to any other party, or the addition of any expressions, which could be construed to have that operation should be care- fully avoided. For this reason the disclaimer should be made simply and absolutely, and should not be expressed to be made unto the co-trustees or cestuis que. trust, as is sometimes done.^ What shall be deemed an acceptance or disclaimer of the trust by the trustee in certain cases, has been regulated by statute in many of the States. As to the effect of a valid disclaimer, it is evident that the parties are left as though the disclaiming party had not been nominated. The title in the subject matter of the trust will be vested in those who accept the trust f or, if there are none, then in case of a deed or grant, the title will remain in the grantor ; or in the case of a will, in the heir- at-law, or personal representatives, according as to * See preceding note. » Leggett V. Hunter, 19 N. Y- Rep., (5 Smith,) 445. ACCEPTANCE AND DISCLAIMER OF TRUSTEES. 535 whether it be real or personal estate. Thus, when one of several trustees disclaims, the entire estate is vested in the other trustee or trustees, the same as though the disclaiming party had not been named in the trust instrument/ But where a sole trustee disclaims, or when all the trustees do so, the legal estate vests in heir of the devisor, when the trust is of real estate ; and in the personal representative, when of personal estate.^ ' Thompson v. Leach, 2 Ventr., 198; Dann v. Jiidge, 11 East, 288; Boni- fant V. Greenfield. Cro. Eliz., 80; Taylor v. Galloway, 1 Hamm., 232; Jones V. Moffet, 5 S. & R., 523; Smith v. Shackleford, 9 Dana, 452; P. F. School V. Fisher, 30 Maine, 520; King v. Donelly, 5 Paige, 46; Leavans v. Butler, 8 Porter, 380; Leggett v. Hunter, 19 N. Y. Rep., 445. » Stacy V. Elph; 1 M. & K., 195. 536 THE OFFICE OF TRUSTEE, CHAPTER IV. THE OFFICE OF TRUSTEE, AND ITS GENERAL PROPERTIES. The office of trustee is characterized by certain properties which pertain thereto, and are insepar- able therefrom : and the first is — 1. That where a person has actually or construc- tively accepted and undertaken the office, he cannot, by his own act, discharge himself from subsequent liability. No person can be compelled to undertake such an office, and assume its responsibilities. But having undertaken them, there is no way to obtain a discharge except by faithfully executing the trust ; or by application to the proper court ; or by virtue of some special power contained in the instrument creating the trust ; or by the consent of all parties interested therein.* »See Lewin on Trusts, p. 289; Doyle v. Blake, 2 Sch. & Lef.. 245; Chalmer v. Bradley, 1 J. & W., 68; Lowrey v. Fulton, 9 Sim., 123; Reed V. Truelove, Ambl., 417; Shepherd v. McEvers, 4 John. Ch., 136; Diefen- dorf tJ. Spraker, 6 Seld., 246; Switzer v. Skiles, 3 Gilman (111.), 529. Where all the cestuis que trust are of full age and free from disability, their assent will be sufficient. But where there are infants or femes covert, or trusts for children not in esse, etc., if the trustee would be discharged he must apply to the court and show cause, etc. Matter of Jones, 4 Sandf. Ch. 615; Cruger v. Holliday, 11 Paige, 314; Courtenay v. Courtenay, 3 Jones &, Lat., 529. In Jlew York, by provisions of R. S., vol. Ill, p. 22, sec. 88, trustee by petition to the Supreme Court, may resign, and will AND ITS GENERAL PROPERTIES. 537 2. A second property of the office of trustee is, that being one of personal confidence, it cannot be delegated to another. This is a well established principle, in the administration of trusts.^ But there are cases where trustees and executors are jus- tified in administering the trust through the aid or instrumentality of others.'^ In the case of ex parte Belchier,^ Lord Hardwick remarked " there are two sorts of necessity ; first, a legal necessity ; and secondly, a moral necessity. As to the legal neces- sity, a distinction prevails. Where two executors join in giving a discharge for money, and one of them only receives it, they are both answerable, because there is no necessity for both to join in the discharge, the receipt of either being sufficient. But if trustees join in giving a discharge, and one only receives, the other is not answerable, because his joining in the discharge was necessary. Moral necessity is from the usage of mankind. If the be discharged upon such terms, and under such regulations as the Court may require and establish, etc. See the particular provisions in the seve- ral States as set forth in sec. 3. ch. 1, div. 2, commencing ante, p. 391. 'Hill on Trustees, p. 175; Chalmers v. Bradley, 1 J. & W., 68; Turner V. Corney, 5 Beav., 517; Walker r. Symonds, 3 Swn., 79; Lord Braybrook r. Inskips, 8 Ves., 417; Alexander v. Alexander, 2 Ves., 643; Adams v. Clifton, 1 Russ., 297; Chambers v. Minchin, 7 Ves., 196, per Lord Eldon; Bradford v. Belfield, 2 Sim., 264; Trutch v. Lamprell, 20 Beav., 116; Thompson v. Finch, 22 Beav., 316; Andrew v. New York Bible Society, 4 Sand., 156; Niles v. Stevens, 4 Denio, 399; Newton v. Bronson, 3 Kern., 587; Beekman v, Bonsor, 23 N. Y. Rep., 298. * But see Lewis v. Reed, 11 Ind., 239; Mason v. Wait, 4 Scam., 132. =* Ambl., 219; see also Bacon v. Bacon, 5 Ves., 335; Clough v. Bond, 3 M. & Cr., 497; Joy v. Campbell, 1 Sch. & Lef., 341; Chambers v. Min- chin. 7 Ves., 193; Davis v. Spurling, 1 R. & M., 66; Munch v. Cockerell, 5 M. & Cr., 214. But in case of assignee of a bankrupt being liable by the attorney absconding, etc, see ex parte Townsend, 1 Moll., 186. 638 THE OFFICE OF TRUSTEE, trustee acts as prudently for the trust as he would have done for himself, and according to the usage of business, as if he appoint rents to be paid to a banker at that time in credit, but who afterwards breaks, he is not answerable ; so in the employment of stewards and agents ; for none of these cases are on account of necessity, but because the trustee acted in the usual methods of business.'" In the case of Joy v. Campbell,^ Lord Redesdale remarked, "An executor living in London, is to pay debts in Suffolk, and remits money to his co-execu- tor 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 respon- sible 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 England ; there the co- executor is appointed for the purpose of carrying on such transactions, and the executor is not respon- sible : for he must remit to somebody, and he can ^ See preceding note. '1 Sch. &Lef., 341; see also Harrison ». Graham, cited, IP. Wms.,241, note (jO (6 ed.); Chambers v. Minchin, 7 Ves., 198; see also Balchen v. Scott, 2 Ves., Jr., 678; Churchill v. Hobson, 1 P. Wms., 241; ex parte, GritBn, 2 Gl. & J., 114; Wackerbath v. Powell, idem. 151; Kilbee v. Sneyd, 2 Moll., 186; Barrings v. Willing, 4 Wash. C C Rep., 251; see also Jones' Appeal, 8 W. & S., 147; State v. Guilford, 15 Ohio, 593; Dea- derick v. Cantrell, 10 Yerg., 264; but see Maccubinv. Cromwell, 7 G. & J., 157; Thomas v. Scruggs, 10 Yerg., 400. AND ITS GENERAL PROPERTIES. 539 not be wrong if he remits to the person in whom the testator himself reposed confidence." But, although, under a legal or moral necessity, a trustee may employ agents, or make use of the as- sistance of others, in the transaction of such busi- ness as usually requires the like agencies or assist- ance, and is only liable for such negligence as a pru- dent man would not be guilty of, yet, where the trust is purely of a discretionary character, and that discretion is vested personally in himself, he cannot delegate it to any one, not even a co-trustee.^ 3. A third incident of the office of trustee is, where the administration of the trust is vested in co-trus- tees, they all form but one, as trustees, and must execute the duties of their office jointly.^ All who accept the office, are acting trustees : and if, for any cause, any one while continuing trustee, cannot or will not act, it is not competent for the others to proceed without him ; and the administration of the trust, in such case, devolves upon the court.^ But one trusteee may be constituted the agent of the others in transacting much of the business per- ' Crewe v. Dicken, 4 Ves., 97; see also Att'yGen'l v. Scott, 1 Ves., 413; Alexander v. Alexander, 2 Ves., 643. "Shook V. Shook, 19 Barb., 653; De Pyster v. Ferrers, 11 Paige, 13; Cox V. Walker, 26 Maine, 504; Vandever's Appeal 8 W. & S., 405; Ridg- ley V. Johnson, 11 Barb. S. C, 527; Sinclair v. Jackson, 8 Cow., 544; Franklin v. Osgood, 14 Johns., 560; Latrobe v. Tiernan, 2 Md. Ch. Decis., 480. ^Doyley v. Sherrat, 2 Eq. Ca. Abr., 742; ex parte, Griffin, 2 Gl. & J., 116; ex joarfe Belchier. Ambl., 219; Guyton & Shane, 7 Dana, 498; Davis V. McNeil, 1 Ired. Eq., 344; Ridgley v. Johnson, 11 Barb., 527; Wood v. Wood, 5 Paige, 596; Matter of Van Wyke, 1 Barb. Ch., 565; Matter of Wadsworth, 2 Barb. Ch., 381; Matter of Mechanics' Bank, ib., 446; Bur- rill V. Sheil, 2 Barb., 457; Scruggs v. Driver, 31 Alab., 274. 540 THE OFFICE OF TRUSTEE, taining to the office ; and he can act for the whole within the scope of such agency. But in such action, he is to be considered as an agent of the trustee rather than an individual trustee ; and his acts are deemed to be the acts of all, upon the principle of "quifacitper alium facit per se^^ There is also another apparent exception to the rule. Where there are numerous trustees, and the trust is of a public character, the act of the majority is held to be the act of the whole.^ In the case of Wilkinson v. Malin, Lord Lyndhurst remarked, " 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 assem- bled for the purpose of making an election, and the majority of them so assembled concurred in the ap- pointment, 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 repair of the church and other objects in which ^ Ex parte Rigby, 19 Ves., 463; Sinclair v. Jackson, 8 Cowen, 543; Bowers v. Seeger, 8 W. & S., 222; see also Abbot v. American Hard Rub- ber Co., 33 Barb., 579; see also Leggett v. Hunter, 19 N. Y. Rep., (5 Smith,) 445. As to the authority of the court to remove and appoint trustees in the several States, see ante p. 391, et seq. See also Webb v. Ledsam, 1 Kay & John., 385. An administrator may appoint an agent to sell a title bond. Lewis v. Reed, 11 Ind.. 239. * Wilkinson v. Malin, 2 Tyr., 544; Att'y Gen. v. Shearman, 2 Beav., 104; Att'y Gen. v. Cuming, 2 Y. & C. Ch. Ca., 139; Younger v. Welham, 3 Sw., 180; Att'y Gen. v. Scott, 1 Ves.. 413; Hill on Trustees, 308; Lewin on Trusts, 298. AND ITS GENERAL PROPERTIES. 541 the whole parish are interested; and we are of opinion that when 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 princi- ple only applies to cases where the trustees are ap- pointed 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 limitation. The objects of the trust would be defeated if one dissenting trustee could prevent the application of the funds in the manner directed. Considering the nature of the trusts, we are of opinion it was the intention 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."^ It is sometimes provided in the instrument creat- ing the trust, that the duties of the office may be performed by a majority of the trustees, or by a certain definite number of them. The court like- wise sometimes orders that a part of the number of trustees shall constitute a quorum for the transaction of business, etc. But in all these cases, the execu- tion of the trust, according to the determination of the majority, is binding upon all ; and if any with- hold their assent unreasonably, the court, on appli- cation, will compel them to execute the trust, or remove them and appoint others in their place. ^ ' See preceding note. * Clark V. Parker, 19 Ves., 1; Att'y Gen. v. Scott, 1 Ves., 413; Lewin on Trusts, 299; see Townley v. Sherborne, Bridg., 85; Williams v. Nixon, 2 Beav., 472; Gouldsworth v. Knight, 11 M. & W., 337; Matter of Mechan- ics' Bank, 2 Barb,, 446; Burrill v. Shell, 2 Barb., 457. But a majority of 542 THE OFFICE OF TRUSTEE, As at law any one of several joint tenants is authorized to receive and give discharges for the rents and incomes arising from the property, so one of several co-trustees of stock in the public funds, may receive the dividends on the whole sum,^ although all must join in the sale of the corpus, or in the conveyance of the estate.*^ 4. A fourth incident to the office of trustee is, that on the death of one of the co-trustees, the joint office survives.^ Where an authority to perform an act, coupled with an interest, is committed to seve- ral persons, and any one of them dies, such author- ity vests in the survivor or survivors.* This was the law in the days of Lord Coke. For he observes, *' if a man deviseth land to his executors to be sold, and maketh two executors, and one of them dieth, yet the survivor may sell the land, because, as the estate, so the trust shall survive : and so note the diversity between a bare trust and a trust coupled with an interest."^ The law in this respect has remained the same since the days of Lord Coke, except, that a power imperative, which is a trust, whether a bare power or one coupled with an interest, is deemed to trustees cannot exclude one of their number, and so divest him of his rights as to make his subsequent acts in obtaining possession of the property, a tort. See M. E. Ch. of Pultney v. Stewart, 27 Barb.. 553. * Williams v. Nixon, 2 Beav., 472; see also Webb v. Ledsam, 1 Kay & John., 385; Gouldsworth v. Knight, 11 M. & W., 337. ^ Townley v. Sherborne, Bridg., 35; Gouldsworth v. Knight, ut supra. ^ Stewart v. Fetters, 10 Mo., 755. * Butler V. Bray, Dyer, 189; Peyton v. Bury, 3 P. Wms., 628; Adams v. Buckland, 2 Vern., 514; Hudson v. Hudson, Rep. T. Talb., 127; Coke Lit.. 113; Lane v. Debenham, 17 Jur., 1005. " Coke Litt.j 113. AND ITS GENERAL PROPERTIES. 543 be an estate in the trustee and survivors.^ There is a distinction however, where the committee are regarded in the light of mere bailiflfs, without any interest : as a committee of a lunatic's estate. In such case, if one of them die the office is extin- guished. So also, if joint guardians be appointed by the court, on the death of one of them the office is at an end.^ But it is otherwise with the office of executor, administrator, trustee, etc., for in such cases the estate vested in them is deemed to be an interest, and survives.^ Where several are appointed to the office of trus- tee, executor, etc., it vests in those only who accept.* So also where one has been discharged from the trust, etc.^ But where there are two or more joint * Dominck v. Sayre, 3 Sand., 555. " Ex parte Lyne, Rep. T. Talbot, 143; Bradshaw v. Bradshaw, 1 Russ., 528; Hall v. Jones, 2 Sim., 41. ' Adams v. Buckland, 2 Vern., 514; Hudson v. Hudson, Rep. T. Talbot, 129; Eyre v. Countess of Sbaftsbury, 2 P. Wms., 102; Co. Lit., 113; Att'y Gen. V. Bishop of Litchfield, 5 Ves., 825; Slater v. Wheeler, 9 Sim., 156; Lane v. Debenham, 17 Jur., 1005; Warburton v. Sandys, 14 Sim., 622; Dominick v. Sayre, 3 Sand., 555; Belmont v. O'Brien, 2 Kern., 394; Shook V. Shook, 19 Barb., 653; DePeyster v. Ferrers, 11 Paige, 13; Moses v.Mur- gatroyd, 1 John. Ch. Rep., 119; Shortz v. Unangst, 3 W. & S ., 45; Stewart V. Fetters, 10 Mo., 755; Powell v. Knox, 16 Alab., 364; Parsons v. Boyd, 20 Alab., 112; but see Gregg v. Currier, .36 N. H., 200. In that case it was held, that where the will directed the executor to sell lands, it conferred a bare power without any interest, and the estate descended to the heir, etc. See also Smith v. McConnell, 17 111., 135; Aubuchon v. Lory, 23 Miss., 99; Hopper V. Adee, 3 Duer, 235; Barton v. Tunnell, 5 Harring., 182; Britton V. Lewis, 8 Rich. Eq., 271; Leggett v. Hunter, 19 N, Y., 445. * Leggett V. Hunter, 19 N. Y. Rep., (5 Smith,) 445; Davou v. Fanning, 2 Johns. Ch. Rep., 252; Matter of Stevenson, 3 Paige, 420; King v. Don- nelly, 5 Paige, 46; Matter of Van Sclioonhoven, ib., 559; Burton v. Tun- nell, 5 Harring., 182; Brittan v. Lewis, 8 Rich. Eq., 271; Treadwell r. Cordis, 5 Gray, 341. * Grinstead v. Yonte, 32 Miss., 120. 644 THE OFFICE OF TRUSTEE, trustees, and one becomes incompetent through lunacy or other inability, to join in the execution of the trust, the other cannot act alone, but must call in the aid of the court. ^ 6. A fifth incident of the office of trustee is, that one trustee shall not be liable for the acts or defaults of his co-trustee.^ Co-trustees were formerly con- sidered responsible for money, where they joined in signing a receipt for it. But that rule has, latterly, been discarded ; because where the administration of a trust is committed to co-trustees, a receipt for money paid to the account of the trust must be authenticated by the signature of all the trustees in their joint capacity ; and it would be deemed unjust for the law to hold a co-trustee responsible for that act which the nature of his office will not permit him to decline.^ This question was first authorita- tively settled in the case of Townley v, Sherborne, ut supra. In this case. Lord Keeper Coventry called to his assistance several of the justices, etc., and " after long and mature deliberation on the case, and serious advice with all the judges," declared in open court the resolution of his lordship and of the judges, " that where lands or leases were conveyed ' Matter of Wadsworth, 2 Barb. Ch. Rep., 381. " Townley v. Sherborne, Bridg., 35; Leigh v. Barrey, 3 Atk., 584; Spal- ding V. Shalmer, 1 Vern., 308; Sadler v. Hobbs, 2 Bro. C. C, 114; Brice V. Stokes, 11 Ves., 324; Chambers v. Minchin, 7 Ves., 198; Gaultney v. Nolan, 33 Miss., 569; Kerr i;. Waters, 19 Geo., 136. But see Spencer r. Spencer, 11 Paige, 299; Bowman v. Raineteaux, Hoff., 150. ' Brice v. Stokes, 11 Ves., 324; Harden v. Parsons, 1 Ed., 147; Westley V. Clark, 1 Ed., 359; ex parte Belcher, Amb., 219; Lord Shipbrook v. Lord Hincbinbrook, 16 Ves., 479; Webb v. Ledsam, 1 Kay & Johns., 388; Kip r. Denniston, 4 Johns., 23. AND ITS GENERAL PROPERTIES. 645 to two or more upon trust, and one of them receives all, or 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 de- cayed, unless some practice, fraud or evil dealing ap- pear to have been in them to prejudice the trust ; for they being by law joint tenants or tenants in com- mon, every one by law may receive either all or as much of the profits as he can come by." =h= * * "And if two executors be, and one of them waste all or any part of the estate, the devastavit shall by law charge him only, and not the co-executor. And in that case aequitas sequitur legem, there being many precedents resolved in chancery that one executor shall not answer nor be chargeable for the act or default of his companion. And it is no breach of trust to permit one of the trustees to receive all or most part of the profits ; it falling out many times that some of the trustees live far from the lands, and are put in trust for other respects than to be troubled with the receipt of the profits. And although, in all presumption this case had often happened, yet no precedent had been produced 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 until of late, been brought into question in a case that by all likelihood had often happened. But if upon proofs or circumstances the court should be satisfied that 35 546 THE OFFICE OF TRUSTEE, there had been any dolus mains, or any evil practice, fraud or ill intent in him that permitted his com- panion to receive the whole profits, he should be charged though he received nothing." Although a co-trustee, who joins in a receipt for money for conformity's sake, is not answerable for a misapplication by the trustee who receives it, yet it is incumbent upon him to prove that his co-trus- tee was the person by whom the money was actu- ally received; and if he fail to do so, he will be jointly charged ;^ for at law, the joint receipt is conclusive evidence that the money came to the hands of both ; but equity admits of explanation, and will decree according to the justice of the case.* The reason why co-trustees are not liable for signing a receipt for conformity's sake, is based upon the principle, that the law makes it his duty to do so, and will not permit him to decline the perform- ance of that duty. If, therefore, a co-trustee sign where the purposes of the trust do not require that he should do so, he will render himself liable.^ In pursuance of this principle, courts have been dis- ' Brice v. Stokes, 11 Ves., 234; Scurfield v. Howes, 3 Bro. C. C, 95; Westley v. Clarke, 1 Ed., 359; see also Fellows v. Mitchel, 1 P. Wms., 83; Jones' Appeal, 8 W. & S., 147; Monell v. Monell, 5 Johns. Ch., 283; Dea- derick v. Cantrell, 10 Yerg., 264; Manahan v. Gibbons, 19 Johns., 427. ' Harden v. Parsons, 1 Ed., 147; Manahan v. Gibbons, 19 Johns., 427; Monell V. Monell, 5 J. Ch. Rep., 283; Kip v. Deniston, 4 Johns., 23; Ster- rett's Appeal, 2 Penn. St. Rep., 419. ' Hanbury v. Kirkland, 3 Sim., 265; Rowland v. Witherden, 3 Mac. & Gord.,568; Broadhurst r. Balguy. 1 Y. & C. Ch. Ca., 16; Johnsons. Johnson. 2 Hill's Eq., 290; Jones' Appeal, 8 W. & S., 147; Clarke r. Jenkins, 3 Rich. Eq., 318; Monell v. Monell, 5 J. Ch. Rep., 288; Duncom- mon's Appeal, 17 Penn. St. Rep., 270. AND ITS GENERAL PROPERTIES. 547 posed to make a distinction between co-trustees and co-executors. Although, as a general principle, executors are not responsible for the acts and de- faults of their co-executors, yet in respect to sign- ing receipts, courts have made a distinction. It is held, that each executor has full control over the personal assets of the testator; and that the law does not require his co-executor to join in the re- ceipt for money, etc. If, therefore, an executor join with his co-executor in a receipt, he interferes when the nature of his office lays no such obliga- tion upon him, and he does a voluntary and un- necessary act, for which he is held answerable.^ But this seems to be an extreme statement of the doctrine. The fact that a co-executor joins unneces- sarily in a receipt for the payment of money fur- nishes stronger proof against him than though the nature of his office required him to do so ; yet, such fact is not deemed conclusive against him ; for he may shew that the money came into the hands of his co-executor without his agency or control, and that the signing of the receipt on his part was merely nugatory.^ There has been much discussion of this question in the English courts. In the case of Westley v. Clark, Lord Northington took the * Lewin on Trusts, 310; Murrell v. Cox, 2 Vern., 560; ex parte Belcher, Ambl., 219; Darwell v. Darwell, 2 Eq. Ca. Abr., 456; Duncommun's Ap- peal, 17 Penn. St. Rep., 270; Jones' Appeal, 8 W. & S., 147; Manahan r. Gibbons, 19 Johns., 427. ' Westly V. Clark, 1 Ed., 3.57; S. C, 1 Dick, 329; Sciirfield v. Howes, 3 Bro. C. C, 94; Hovey v. Blakeman, 4 Ves., 468; Joy v. Campbell, 1 Sch. & Lefr., 242; Stell's Appeal, 10 Barr,152; McNair's Appeal, 4 Rawle, 155; Ochiltree v. Wright, 1 Dev. & Batt. Eq., 336. 548 THE OFFICE OF TRUSTEE, broad ground, that the rule, that executors joining in a receipt were all liable, amounted to no more than that such joint receipt was stronger evidence of their joint possession and control than in cases where such joining was necessary. Although at law, such joining in the receipt was conclusive against the executor, " yet where it appeared plainly that one executor only received and discharged the debt, 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 the act was done, what ground 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 deter- mination 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 discharged the debt, and, according to the sense of the bar, transferred the legal estate of the lands. Then that act the co-executors are not to answer for; the second act is nugatory."^ On the other hand the doctrine and reasoning of Lord Northington has been questioned. Lord Eldon remarked, that the old rule by which executors had been held liable for joining in a receipt, etc., had ' Westley v. Clark, 1 Ed., 357; S- C, 1 Dick, 329; see also Scurfield v. Howes, 3 Bro. C. C, Ql; Re Fryer, 3 Jur. N. S., 485. AND ITS GENERAL PROPERTIES. 549 been pared down, but in his opinion, the notion upon which the latter cases had proceeded, viz : that the old rule had a tendency to discourage executors from acting, was very ill-founded. He thought, a plain general rule, which once laid down, was easily understood and might be generally known, was much more inviting to executors than a rule refer- ing everything to the particular circumstances.^ From a careful examination of the authorities, this principle would seem to be deducible. The executor is liable for any act by which he reduces any part of the testator's property into the posses- sion of his co-executor; and, that the joining in a receipt will render him liable, whenever it is deemed to be such an act.^ Where a bill of exchange had been remitted to two agents, payable to them personally, and, on the death of their principal, they were made his exe- cutors ; one of them, to enable the other to receive the money, endorsed to him the bill : It was held that such endorsement did not operate to charge him, because the endorsement was absolutely necessary; ^ * See Chambers v. Minchin, 7 Ves., 198; Brice v. Stokes. 11 Ves., 325; Shipbrook v. Hiiichinbrook, 16 Ves., 479;; Walker v. Symonds, 3 Sw., 64; see also Doyle v. Blake, 2 Sch. & Lef., 243; Joy v. Campbell, 11 Ves., 325; Sadler v. Hobbs, 2 Bro. C. C, 14. " See Doyle v. Blake, 2 Sch. & Lef., 231; Lees v. Sanderson, 4 Sim., 28; Townsend v. Barber, 1 Dick, 356; Sadler v. Hobbs 2 Bro. C. C, 14; Clough V. Dixson, 8 Sim., 594, and 3 M. &, C, 490j Moses v. Levi, 3 Y, & C, 359; Kilbee v. Sneyd, 2 Moll., 200; Hovey v. Blakeman, 4 Ves., 608; Spencer v. Spencer, 11 Paige, 299. ' Hovey v. Blakeman, 4 Ves., 608;. and see Chambers v. Minchin, 7 Ves., 197; Murell v. Cox, 2 Vern., 570; Shipbrook v. Hinchinbrook, 11 Ves., 254; S. C, 16 Ves., 479? but see Kilbee v. Sneyd, 2 Moll., 186, 200, 213. 550 THE OFFICE OF TRUSTEE, and, it might have been added, the endorsement was not in his character as executor. In the case of Townley v. Sherborne,^ Lord Keeper Coventry, with the advice of all the judges, while declaring that the trustee should not be held responsible for signing the receipt with his co-trus- tee, because he was, in so doing, performing an act which the " nature of his office would not permit him to decline," laid down the rule, "that if, upon the proofs or circumstances, the court should be satisfied that there had been any dolus mains, or any evil practice, fraud, or ill-intent in him that per- mitted his companion to receive the whole profits, he should be charged though he received nothing."^ It is, therefore, held that the trustee may be liable for the acts of his co-trustee, or rather, perhaps, for his own criminal laches and neglect, by which he permits his co-trustee to commit frauds upon, or squander the trust estate. Lord Eldon stated the law in this respect very clearly in the case of Brice v. Stokes.^ In that case, two trustees. Moor- ing and Fielder, conveyed the estate to a purchaser in 1784, and both signed the receipt, but Fielder alone received the money. Ten years after Fielder • Bridg., 35; see also Kilbee v. Sneyd, 2 Moll., 203, 213; Moyle v. Movie, 2 R. &. M., 710; Evans' Estate, 2 Aslim., 470; Ringgold v. Ringgold, 1 H. & G., 11; Pim V. Downing, 11 S. & R., 71. ' Brice v. Stokes, 11 Ves., 319; see Walker v. Symonds, 3 Sw., 1 and 74; Kilbee v. Sneyd, 2 Moll., 186, also 200 and 213; see also Handbury v. Kirkland, 3 Sim., 265; Broadhursl v. Balguy, 1 Y. & C. Ch. Ca., 16; see Clongh V. Dixson, 8 Sim., 594, and 3 M. & Cr., 490; Spencer v. Spencer, 11 Paige, 299; Weigand's Appeal, 28 Penn. St. Rep., 421; State v. Guil- ford, 15 Ohio, 593; Pim v. Downing, 11 S. & R., 71. AND ITS GENERAL PROPERTIES. 651 died insolvent without having accounted for the money, and Mooring was cognizant of the misem- ployment of the fund, but took no active measures for recovering it out of the hands of his co-trustee. Lord Eldon said : " Though a trustee is safe if he does no more than authorize 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 a retainer, admits that, with his knowledge, and therefor with his consent, the co-trustee has not laid it out according 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, after the knowledge of the trustee that it had got into a course of abuse. As soon as a trustee is fixed with a knowledge that his co-trustee is mis- applying 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."^ Inasmuch as the trustee, if he would avoid liabi- lity on account of his co-trustee, must be guilty of no " dolus malus,'^ or any evil practice, fraud, or ill- intent ; if, therefore, he is cognizant of any breach of trust, committed by a co-trustee, and conceal it, or does not immediately take active measures to * See preceding note. 552 THE OFFICE OF TRUSTEE, protect the interest of the cestui que trust ; or if a breach of trust is threatened, and he does not take the necessary means to prevent it, he will be deemed guilty of a breach of trust himself, and be held answerable for the consequences of the same/ So, likewise, where a trustee suffers the funds to pass improperly into the hands of his co- trustee, or where he leaves his co-trustee in the exclusive charge of the trust property and the exe- cution of the trust, he has been held liable.^ In Georgia, in the case of Cleghorn v. Love, a query was raised, whether, if one trustee committed a breach of trust on which an account was decreed, the court could so mould its proceedings as to require the guilty party to respond first. In New York it was held, that where stock held by two trustees, was disposed of under a joint power, both were ultimately liable ; but that the one who received the proceeds should be primarily so.^ A co-executor or co-trustee may become liable from gross laches in not securing properly the trust property. Thus, a testator bequeathed to his daughter the interest on the bond of one whom he appointed one of his executors, which interest was to be paid annually during her life ; and the testa- • Boardman v. Mosam, 1 Bro. C. C, 68; Brice v. Stokes, 11 Ves., 319; Blackwood v. Borrowes, 2 Conn, and Laws, 477; Walker t>. Symonds, 3 Sw., 41; Booth v. Booth, 1 Bcav., 125; Williams v. Nixson, 2 Bear., 472; Mumford v. Murry, 6 Johns. Ch., 1 and 452; Ringgold v. Ringgold, 1 H. & G., 11. Slight suspicion is not sufficient. Jones' Appeal, 8 W. & S., 147. " Bowman v. Raineteaux, Hoff., 150; Mumford v. Murray, 6 Johns. Ch., 1, 452. ' Cleghorn v. Love, 24 Geo., 583; Spencer v. Spencer, 11 Paige, 299. AND ITS GENERAL PROPERTIES. 553 tor directed his executors to secure the principal. Eighteen years after the death of the testator, the obligor of the bond died insolvent, no steps having been taken to secure the principal of the bond. The co-executor was held to be liable to the lega- tees, because it was their joint duty to have secured the principal/ 6. A sixth general property of the office of trus- tee is, that trustees shall not derive any personal advantage from the administration of the property committed to their charge. A trustee may purchase from the cestui que trust, provided there is a distinct and definite contract, and one in which there is no fraud, no concealment of information acquired by him in his character as trustee, and no other advan- tage taken. But the contract must be such as will appear fair, after the most jealous examination.^ The incapacity of a trustee to purchase from his cestuis que trust proceeds upon the principle that the trustee is in a situation which gives him exclusive advantages in acquiring a knowledge or information respecting the trust property; and the policy of the law forbids that one in that situation should be ' Weigand's Appeal, 28 Penn. St. Rep., 421; see Challan v. Shippan, 4 Hare, 452; Evans' Estate, 2 Ashm., 470; Pim v. Downing, 11 S. & R., 71; State V. Guilford, 15 Ohio, 593. ^ Ex parte Lacy, 6 Ves., 226; ex parte Bennett, 10 Ves., 394; Heme v. Meeres, 1 Vern., 465; Scott v. Davis, 1 M. & Cr., 87; Coles v. Trecothick, 9 Ves., 234; Morse v. Royal, 12 Ves., 372; Lyon v. Lyon, 8 Ired. Eq.,201; Pennock's Appeal, 14 Penn. St. Rep., 446; Burch v. Lautz, 2 Rawle, 392; Harrington v. Brown, 5 Pick., 519; Dunlap v. Mitchel, 10 Ohio, 117; Jones V. Smith, 33 Miss., 215; Bolton v. Gardner, 3 Paige, 273; Stuart r.Kissam, 2 Barb., 493; but see Trustees for Sale, Ames v. Downing, 1 Bradf., 321; Sallee v. Chandler, 26 Miss., 124; Smith v. Isaac, 12 Mo. Rep., 106. 654 THE OFFICE OF TRUSTEE, under the temptation to sacrifice integrity and vio- late the requirements of justice. The law, there- fore, wisely discountenances all transactions of that character/ The extreme strictness of the English law upon this subject may be seen by consulting the opinion of Lord Eldon, in the case of Webb v. The Earl of Shaftsbury.^ In that case, he directed an inquiry whether the liberty of sporting over the trust estate could be let for the benefit of the cestui que trust; and, if not, he thought the game should belong to the heir. The trustee might appoint a game-keeper, if necessary, for the preservation of the game, but not to keep up a mere establishment of pleasure.*^ Upon the principle that the trustee shall not derive any personal advantage from the administra- tion of the trust property, if an executor or trustee buy in any debt, or discharge any incumbrance to which the trust estate is liable, for a less sum than is actually due thereon, they shall not be entitled to the benefits of such purchase.^ And if trust money 'Baxter v. Costin. 1 Busb. Eq., 262; Mason v. Martin, 4 Md., 124; Spindler v. Atkinson, 3 Md., 409; Andrews v. Hobson, 23 Alab., 219; Green v. Winter, 1 Johns. Ch., 26. » Webb t). Earl of Shaftesbury, 7 Ves., 480; see also Hutchinson v. Mor- ritt, 3 T. & C, 547; see also upon this subject, Hill v. Bishop of London, 1 Atk., 618; Martin v. Martin, 12 Sim., 579; Hawkins v. Chappell, 1 Atk., 621. ^ Robinson v. Pelt, 3 P. Wms., 251, note a; ex parte Lacy, 6 Ves., 628; Dunch V. Kent, 1 Vern., 260; Darcey v. Hall, 1 Vern., 49; Fosbrook v. Balguy, 1 M. & K., 226; Schoonmaker v. Van Wyke, 31 Barb., 457; Quackenbush v. Leonard, 9 Paige, 334; Slade v. Van Vechten, 11 Paige, 21; Matter of Oakley 2 Edw., 478; Herr's Estate, 1 Grant's Ca., (Penn.,) 272. And a purchaser who purchases knowing the trustee has wrongfully sold to himself, takes the property subject to the trust. Barksdale v. Fin- ney, 14 Gratt., 338. AND ITS GENERAL PROPERTIES. 555 be laid out in buying and selling land, or in stock speculations, or in any commercial adventure, by the trustee or executor, and a profit be made there- by, the advantage goes to the party whose money has been used, and not to the trustee.^ Upon the like principle, the trustee is not per- mitted to purchase the property of the cestui que trust at auction, without establishing every circum- stance necessary to make the transaction good as a private sale.*^ And, when the trustee has purchased the trust property, either at public or private sale, he takes it subject to the right of the cest%ii que trust to set aside the sale, if he thinks proper,^ or to claim the benefits of it for himself.* As this prohibition is based upon the policy of the law, which considers the trustee to be so situa- ted, in respect to the trust property, as to possess exclusive advantages for acquiring a knowledge and information respecting it, and thus to be under ' Fosbrook v. Balguy, 1 M. & K., 226; Docker v. Somes, 2 M. & K., 664; Wedderburn i>. Wedderburn, 2 Keen., 722, S. C, 4 M. & Cr.,41; see Parker v. Bloxam, 20 Beav., 295; Schoonmaker v. Van Wyke, 31 Barb., 457; Herr's Estate, 1 Grant's Cas., (Penn.,) 272. * Campbell v. Walker, 5 Ves., 678; Lister v. Lister, 6 Ves., 631; San- derson V. Walker, 13 Ves., 601; Beeson v. Beeson, 9 Barr, 279; Bostwick V. Atkins, 3 Coms., 53; Patton v. Thompson, 2 Jones' Eq., 285. ' Mason v. Martin, 4 Md., 124; Spindler v. Atkinson, 3 Md.. 409; An- drews V. Hobson. 23 Alab. 219; Davou v. Fanning, 2 Johns. Oh., 252; see Hendricks v. Robinson, 2 Johns. Gh., 283,311; Evertson v. Tappan, 5 Johns. Ch., 497; (and the right to avoid the sale passes to the heir or per- sonal representative, Iddings v. Bruer, 4 Sand. Ch., 222;) Ames v. Down- ing, 1 Brad., 321; Bellamy v. Bellamy's Adm'r, 6 Flor., 62; Charles v. Dubois, 29 Alab., 367; see Smith v. Lansing, 22 N. Y. Rep., 530. * Schoonmaker v. Van Wyke, 31 Barb., 457; Wiswall v. Stewart, 32 Alab., 433. 556 THE OFFICE OF TRUSTEE, temptation to sacrifice integrity, and violate the requirements of justice, when such is not the situation of the trustee, the reason of the prohibi- tion ceasing, the prohibition itself ceases. Thus, where the cestui que trust has taken upon himself the conduct of all the preliminary proceedings requisite for the sale, such as the surveys, the mode and conditions of sale, the plans, the choice of the auc- tioneer, and the like, and the trustee has not been in a situation to acquire any exclusive information respecting the property, if under such circum- stances the trustee purchase, he stands upon the same footing with other indifferent persons/ For a similar reason, the prohibition to purchase, etc., does not extend to merely nominal trustees, who, practically, have no interest or power as trustees with respect to the trust estate.^ In case the trus- tee wishes to purchase any portion of the trust property during the continuance of his office, he should purchase it under the sanction of the court, or with the full concurrence of the cestui que trust, and should purchase under such circumstances as to be able to make it appear that there was no fraud and no concealment of information from his bene- * Coles V. Trecothick, 9 Ves., 248; but see Monro v. Allaire, 2 Caine's Ca3.,183; Salmon v. Cutts, 4 DeG. & Sm., 131; see also Smith v. Lansing, 22N.T. Rep., 530. "Parker v. White, 11 Ves., 226; Naylor v. Winch, 1 S. & St., 567; Sutton V. Jones, 15 Ves., 587; see Tucker z). Cocke, 32 Miss., 184; Jackson V. Woolsey, 11 Johns., 446; but see Gallatian v. Cunningham, 8 Cowen, 361, afifg Galatian t) Erwin, Hop., 48. Where the relation is presumed to be destroyed under hostile judicial proceedings, he may purchase, etc., see De Bevoise v. Sandford, Hoff., 192. AND ITS GENERAL PROPERTIES. 557 ficiary, which he derived in his character as trus- tee/ Upon the principle that the trustee is not to receive any advantage from his office, he cannot act as a factor, a broker, commission agent, or auc- tioneer, so as to make for himself any profit from the estate;^ neither can he act as solicitor so as to charge the estate for his professional labors, except by Special contract.^ In one sense a trustee may, by possibility, reap an advantage from his office, not from any positive right in himself, but from the lack of right in any other to call him to an account. But as this involves no principle peculiar to the office of trus- tee, it need not be discussed here. This may occur where the line of descent fails, by the death of the cestui que trust, without heirs ; the trustee will have the enjoyment of the legal owner, for there is no one who can sue out a subpoena against him.'' Courts watch with peculiar jealousy all transac- tions of the trustee, by which he may seek some personal advantage in his management of the trust * Campbell v. Walker, 5 Ves., 678; ex parte Lacy, 6 Ves., 625; ex parte Hanes, 8 Ves., 348; ex parte Bennett, 10 Ves , 393; Will. Eq., 187; Patton V. Thompson, 2 Jones' Eq., 285; but see quere Sheldon v. Sheldon, 13 Johns. 220; (see suggestions in De Caters v. Le Ray De Chaumont, 3 Paige, 178;) Chapin v. Weed. Clarke, 464; Slade v. Van Vechten, 11 Paige, 21; Stuart V. Kissam, 2 Barb., 493; West v. Sloan. 3 Jones' Eq., 102. " Scattergood v. Harrison, Moseley, 128; Arnold v. Garner, 2 Phil., 231; Sheriffs. Axe, 4 Russ., 33; Mathison v. Clarke, 3 Drew., 3. ' More V. Frowd, 3 M. & Cr., 46; Fraser v. Palmer, 4 Y. & C, 515; York V. Brown, 1 Coll., 260; Broughton v Broughton, 5 DeGcx, M. & G., 160; but see Lowrie's Appeal, 1 Grant's Cas., 373; Ellig v. Naglee, 9 Cal., 683. * See Adams' Doctrine of Equity, p. 50; but see Matthews v. Ward, 10 Gill & John., 443; Darrah v. McNair, 1 Ashra., 236; 4 Kent's Com., 425. 558 THE OFFICE OF TRUSTEE, ETC. estate, or in his dealings with the cestui que trusty And the same principle is applicable to all others standing in like fiduciary relations ; for no person can be permitted to purchase an interest in property and hold it for his own benefit, where he has a duty to perform in relation to such property, which is inconsistent with the character of purchaser on his own account.^ But, if the cestui que trust intends to avail him- self of his privilege, he must signify his intention to do so within a reasonable time ; for if he defers beyond that, his right of repudiation is gone.^ And if the cestui que trust does not see fit to question the sale, the purchaser's title is good; for none other can impeach it,'* except, perhaps, the heirs or legal representatives of the beneficiary; and, perhaps, his creditors may be entitled.^ * Schoch's Appeal, 33 Penn. St. Rep.. 851; Landis v. Scott, 32 Penn. St. Rep., 495; Bolton v. Gardner, 3 Paige, 273; Wiswall v. Stewart, 32 Alab., 433; Jones v. Smith, 33 Miss., (4 George,) 215. ''Thorp V. McCullum, 1 Gilraan, (111..) 615; Ackerman v. Emott, 4 Barb., 626; Richardson v. Spencer, 18 B. Monr., 450; Van Epps v. Van Epps., 9 Paige, 237; Hawley v. Cramer, 4 Cowen, 717. 'Follansbee v. Kilbreth, 17 III., 522; Jones v. Smith, 3 Miss., 215; Powell V. Murry, 2 Edw., 636, affirmed 10 Paige, 2-56; Bergen v. Bennett, 1 Caine's Cas., 1; see also, as to trustees by implication, etc., Decouche v. Savetier, 3 Johns. Ch., 190; Shaver v. Radley. 4 Johns. Ch., 310; Jackson V. Walsh, 14 Johns., 407; Jackson v. Van Dalfsen, 5 Johns., 43; Bostwick V. Atkins, 3 Corns., 53; Bron v. Chiles, 10 Pet., 177. * McNish r. Pope, 8 Rich. Eq., 112; Female Association of New York v. Beekman, 21 Barb., 565. * Iddings V. Bruen, 4 Sand. Ch., 223. LIABILITIES OF TRUSTEES. 659 CHAPTEE V. OF THE DUTIES AND LIABILITIES OF TRUSTEES. Section 1. OF THE GENERAL DUTIES AND LIABILITIES OF TRUSTEES. Where there are several trustees appointed for the management of the trust, their relation to each other in general, is that of joint tenants. What- ever may be the terms of the gift, if possible, the court will affix to it this construction, because it is more convenient so to consider it.^ Hence the law of survivorship, that upon the death of one of several trustees, the estate devolves upon the sur- vivor or survivors ; and upon the death of the last surviving trustee, where there are no special provi- sions in the instrument creating the trust for the appointment of others, or by statute otherwise pro- viding, the estate devolves according to its legal quality, either upon the heir-at-law or personal representative.^ How far the heir-at-law or personal representa- ' Hill on Trustees, 303; see statutes of New York, Michigan, Indiana, Illinois, Missouri, Arkansas, etc., in which the estate of trustees is declared to be that of joint tenancy. " Shook V. Shook, 19 Barb., 653; De Peyster v. Ferrers, 11 Paige, 13; Shortz V. Unangst, 3 W. & S., 45; Richardson v. Ryan, 15 111. R., 13; see Cruise Dig., tit. 18, ch. 1, (n). 660 OF THE GENERAL DUTIES AND tives are competent, or bound to administer the trusts, depends upon circumstances. Where the powers of the original trustees are general, and are not given to them personally in special confidence, the heir or personal representative has the same power to act as the original trustee.^ But where the powers are to be exercised according to the personal discretion of the original trustee, the heirs or per- sonal representatives will not be competent unless specially authorized by the trust instrument.'^ But of this hereafter. In case of the death of a mere dry trustee, and where no provision is made in the trust instrument for the continuance of the office in another, the estate, if there be no surviving trustee, will be cast upon the heir-at-law or personal repre- sentative, as a mere act of law ; and in such cases, the heir or personal representative will not be com- petent to make a valid disclaimer; because the original trustee having in his lifetime accepted the trust, and having made no other disposition of the estate, it must go, as in any other case, where the law casts it.^ It has been a grave question, whether an heir, whose ancestor in his lifetime has not ex- pressly accepted the trust, or in any manner per- formed acts in respect thereto, which would fix him with the trust, can make a valid disclaimer. There seems to be no decisions authorizing such disclaimer. * Hill on Trustees, 175 and 222; Lewin on the Law of Trusts, 232; Creagh V. Blood, 3 Jones &. Lat., 170. " Lewin on Trusts, 290; Turner v. Corney, 5 Beav., 517; Ghost v. Waller, 9 Beav., 497; Chambers v. Minchin, 7 Ves., 196; Niles v. Stevens, 4 Denio, 399; see Andrew d. N. T. B. So., 4 Sand., 156. ^ King V. Phillip, 16 Jur., 1080; Goodson v. Ellison, 3 Russ., 583. LIABILITIES OF TRUSTEES. 561 Mr. Hill ^ thinks, " upon principle, that a disclaimer by the heir or personal representative of a donee in trust, may well be supported, where the original donee has done no act in his lifetime to testify his acceptance of the trust. He remarks, that wherever such a question could arise, it would almost invari- ably be found that the trust estate is expressly limited to the heir or representative of the original nominee : and where the persons to take the estate by representation to the original trustees are so designated, there does not seem to be any valid reason why they should not also take the power to repu- diate the gift, equally with the original trustee, provided that power had not been defeated by any previous act of the latter." Mr. Hill does not dis- tinguish between the act of the party and the mere operation of law. If the heir or personal repre- sentative is to take the estate because he has been designated by the term heir, executor or administrator, that is, if he is to take by 'purchase, then there is no valid reason why he should not take the power to repudiate the gift. But if he is to take as the mere legal representative of the original donee, whether as heir or personal representative, then there may be a question whether he can disclaim. But Mr. Hill continues, " Even where there are no such words of limitation of the trust estate, the estate of the heir or personal representative is merely a continuation of the previous estate ; and as a part of that estate consisted of the power or right to call the office of ' Hill on Trustees, 222. 36 562 OF THE GENERAL DUTIES AND trustee into existence by an act of acceptance, or to repudiate it by a proper act of dissent, the con- tinuation of the estate in the heir or personal rep- resentative would not be perfect if it came to them shorn of that power or right. The argument deri- ved from the absurdity and injustice of forcing a person to accept an estate against his will, applies with equal force to an heir or personal representa- tive, as to the original donee." The argument of Mr. Hill looks to imposing upon the heir or personal representative an estate by the act of the parties, that is by purchase, and casting upon him, without his consent, the duties of an active trust. While a person is not bound to accept a gift in trust or otherwise, yet he cannot avoid the receiving of an estate where it devolves upon him by mere operation of law. While it is true that a person cannot be compelled to take an estate even by gift, without his assent either expressed or im- plied,^ it is also true that while he stands in the legal relation of heir, he cannot avoid the legal con- sequences of that relation. Therefore, Mr. Hill's argument is not quite conclusive on that subject. It is conceded that where the orgininal trustee has accepted the trust in his lifetime, it is no longer competent for the heir or personal representative to disclaim;'^ that is, where the legal estate is in the ancestor, it will devolve upon the heir, in the absence of any other disposition of it. In the ' Shep. Touchst., 285; Thompson ». Leech, 2 Ventr., 198; Hawkins r. Kemp., 3 East, 410. ' Hill on Trustees, 303, 222; Lewin on Trusts, 232. LIABILITIES OF TRUSTEES. 563 absence of any disclaimer by the ancestor, his ac- ceptance of the trust would seem to be presumed under certain circumstances. It is the duty of the trustee, if he intend to decline the administration of the trust, to disclaim without delay. And where the question is one affecting the interest of third parties, the court might be more strict in holding the trustee to proof of his non-acceptance of the trust. There is no specified time within which a trustee is bound to disclaim or be deemed to have accepted the duties of the office. It must depend upon circumstances. It may be exercised after a period of sixteen years, provided the interval can be explained so as to rebut the presumption of his having accepted the trust ; ^ or he may be presumed to have accepted the trust after a period of four years.^ In the case of Wise v. Wise,^ Lord St. Leonard remarked, "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 in such a case that the estate was divested." ^ Where the trustee has lain by for a long time without disclaiming, it may become a question for the jury to say, whether his lying by was because of his having accepted or dis- claimed the trust.^ ' Doe V. Harris, 16 M. & W., 517; Noble v. Meymott, 14 Beav., 471. " Wise V. Wise, 2 Jones & Lat., 34. ' Doe r. Harris, 16 M. & W., 522; see also Re Needham, 1 Jones &. Lat. 34; Re Uniacke, 1 Jones & Lat.. 1. 664 OF THE GENERAL DUTIES AND In settling the question, then, whether the trust estate devolves upon the heir or personal represen- tative, and whether the right of disclaimer is in the heir under any given state of facts, it is submitted that if the legal estate is in the ancestor, and not otherwise disposed of, it must descend to the heir or personal representative, by the mere operation of law, and vest in him or them the legal estate with all its incidents. But if the circumstances are such that the court would deem the ancestor not to have accepted the trust, were the question between the ancestor and other parties, then the estate, not being in the ancestor, will not devolve upon the heir. But it is a principle well established, that the ancestor cannot charge the heirs or personal repre- sentatives with his debts or other liabilities beyond the estates or assets in their hands ; that is, he can only charge the estates they take from him. Neither can the settlor impose upon the trustee duties he is unwilling to assume. And upon the same principle, although the legal estate of the trust property may devolve upon the heir or personal representative, yet it will not impose upon him any duties to be performed at his own expense. Therefore, where the trust estate thus devolves upon the heir or per- sonal representative, he nay unquestionably apply to the court to be discharged and have other trus- tees appointed in his place, without rendering him- self liable for costs.^ ' Hill on Trustees, 303. LIABILITIES OF TRUSTEES. 565 But in all cases where the estate descends to the heir or personal representatives, they will be ex- cluded from exercising those powers which were discretionary in the original trustee alone, or which pertained to a personal confidence reposed in him.^ Such being the character and nature of the estate in the trustee, it follows that all co-trustees must have equal authority, power and interest in respect to the trust estate. Therefore, it is a general rule, that they must all join in the act which is to affect the interest of the trust estate. Thus, they must all join in making sales or leases of trust property, as well as in signing receipts, giving discharges, &c.^ Consequently, in every ministerial act requisite for the proper discharge of the trust, the trustees are bound to concur. And should any one, without good and sufficient reason, refuse to assent to the necessary acts of his co-trustees, he would be com- pelled to do so by decree of court, and would be visited with costs if his concurrence was wrongfully withheld.^ The rules by which to determine when all are bound by the acts of each trustee are few and sim- ple. Where the acts performed by one trustee are ' See Andrew u.N. Y. Bib. So., 4 Sand., 156; but see Leggett v. Hunter, 19 N. Y. Rep., 445. '' Fellows r. Mitchel, 1 P. Wnis., 83; Leigh v. Barry, 3 Atk.,584; Cham- bers V. Minchin, 7 Yes., 198; Sinclair v. Jackson, 8 Cowen, 544; Vande- ver's Appeal, 8 W. & S., 405; Ridgley v. Johnson, 11 Barb. S. C, 527; Att'y Gen. v. Gumming, 2 N. C. C, 139; see also Matter of Wadsworth, 2 Barb. Ch. Rep,, 381. ' Reade v. Sparks, 1 Moll., 8; Guyton v. Shane, 7 Dana, 498; Gaunt v. Falkner, 2 Beav., 347; Nicholson r. Faulkner, 1 Moll., 559; Davis ». McNeil, 1 Ired. Eq., 344; Doyle v.. Sherratt, 2 Eq. Ca, Abr., 742, note. 566 OF THE GENERAL DUTIES AND for the benefit of all necessarily, all will be bound by the act. Such is the rule of law applicable to all joint tenants,^ So, also, where the act of one is for the benefit of the estate, the act is binding upon all ; because, what is for the benefit of their estate, must be for their benefit, at least by legal intend- ment. Upon the like principle, the possession or seisin of one of several joint tenants is the posses- sion of all ; and the statute of limitations will not commence to run against the cestui quetrusl, so long as one trustee is in possession.^ So, likewise, one of sev- eral joint tenants has power to receive and give discharges for rents, incomes and dues of the estate.'^ But where the act of one is not necessarily for the benefit of the whole or for the benefit of the estate, but, on the contrary, might tend to their prejudice, they are not bound.'* These rules are applicable only in the absence of provisions to the contrary. Where, by the provisions of the trust instrument, a power merely collateral or discretion- ary is given to several individuals by name, and to them only, such power can be executed only by all those named. For, in such case, the power is > Rudd V. Tucker, Cro. Eliz., 803; 2 Cruise's Dig., tit. 18, ch. 1; see 60; 6 Mod., 44; 1 Inst., 49, b, also 192, a. ^ Att'y Gen. v. Flint, 4 Hare, 147. ^ Husband v. Davis, 10 C B., 645; Williams v. Nixon, 2 Beav., 472; Townley v- Sherborne, Bridg., 35; but see Walker v. Symonds, 3 Sw., 1, 58; Clough v. Bond, 3 M. & Cr., 490; Webb v. Ledsman, 19 Jur., 775, or 1 Kay & John., 335; Riddle v. Mandaville, 5 Cranch, 329. * Rudd V. Tucker, Cro. Eliz., 803; ex parte Rigby, 19 Ves., 463; Right d. Fisher r. Cuthell, 5 East, 491; Chitty on Contracts, 640; Gulledge v. Barry, 31 Miss., (2 George,) 346; Weston v. Murnan, 4 Ind., 271. LIABILITIES OF TRUSTEES. 567 strictly personal, and does not attach to the office.^ So, also, in all ministerial acts requisite for the dis- charge of the trust all must concur.'^ Where a trustee named has never accepted the trust, but has disclaimed, the estate, powers, etc., are vested in those who do accept ; and, consequent- ly, such disclaiming trustee need not join in any sale or other disposition of the estate, or in the receipt for trust moneys, or in any of the minis- terial acts of the trustees. The same, also, where one, having accepted, has been duly discharged.^ One trustee may be constituted the agent of the others, in transacting much of the business pertain- ing to the office of trustee ; and, within the scope of such agency, his acts will be binding upon all. But, in such case, his acts are to be considered as the acts of an agent, rather than those of an indivi- dual trustee.* So, also, where the trust instrument expressly authorizes a majority of the trustees, or any definite number of them, to administer the trust, and they attempt to do so in good faith, the minority must concur in the acts of the majority.^ So, also, in. ' 1 Sug. Pow., 138; Hill on Trustees, 307. * See cases, ante, Acceptance of the Trust hj Trustee; see Hill on Trus- tees, 307, 545, 551. ' See Hawkins v. Kemp, 3 East, 410; Smith v. Wheeler. 1 Ventr., 128; Adams v. Taunton, 5 Madd., 435; Worthington v. Evans, 1 S. & St., 165; Lord Braybrook v. Inskip, 8 Ves., 417; see also Crewe v. Dicken, 4 Ves., 97. * See ex parte Rigby, 19 Ves., 463; Goodtitle d. King v. Woodward, 3 B. & Aid., 689; Sinclair v. Jackson, 8 Cow., 543; Bowers v. Seeger, 8 W. & S., 222; see Abbot v. American Hard Rubber Co., 33 Barb. S. C, 579. ' Att'y Gen. v. Cumming, 2 N. C C, 139. 568 OF THE GENERAL DUTIES AND cases of charitable and public trusts, they are usually administered by a majority of the trustees ; but their acts are the acts of the whole/ The trust estate being vested in all the trustees equally, as joint tenants, each and all have equal power and authority in its management, and must all act in the execution of the trust. Thus, they must all join in receipts and conveyances ; and a deed executed by two trustees, without evidence of the death of the third would not be valid.^ As a consequence of this power and authority which is vested in each and all, holding the office of trustee, they have each and all duties to perform in respect to the trust estate, and for the faithful performance of which, on their part, they are answerable. And among the first duties of each trustee is that of protecting the estate from the wrongful acts or omissions of his colleagues.^ Each trustee has the right of calling his co-trustee to an account whenever he has reason to believe he has committed or is committing a breach of trust. If, therefore, through neglect of this duty to protect the trust, one trustee permits another associated with him in that office to misappropriate or otherwise waste or lose the trust estate, he is personally ' Att'y Gen. v. Shearman, 5 Beav., 104; Wilson v. Dennison, Ambl.,82; Att'y Gen. v. Scott, 1 Ves., 431; Wilkinson v. Malin, 2 Tyr., 544. * Ridgley v. Johnson, 11 Barb.. 527; see also M. E. Ch.of P. v. Stewart, 27 Barb., 553; see also Wood v. Wood, 5 Paige, 596; but see Burrill v. Sheil, 2 Barb., 457. ' Story's Eq. Jur., sec 1275; Oliver r. Court, 8 Price Rep., 127; Hill on Trustees, 308. LIABILITIES OF TRUSTEES. 569 answerable to the cestui que trust for the amount of such loss/ As a general rule, trustees are not liable for the acts of each other, unless they have made some agreement by which they have expressly agreed to be bound for each other, or have, by their own voluntary connivance or co-operation, enabled one or more to accomplish some known object in viola- tion of the trust.^ In the case of Townley v. Sherbourne,^ Lord Keeper Coventry, under the advice of the associate judges, after deciding that a trustee was not liable for rents which had properly come into the hands of a co-trustee, and had not been paid over, said : " But if, upon proofs or cir- cumstances, the court should be satisfied that there had been any dolus mains, or any evil practice, fraud, or ill-intent in him that permitted his com- panion to receive the whole profits, he should be charged though he received nothing."^ Mr. Story, in his Equity Jurisprudence, after briefly detailing the duties of the trustee in respect to the trust estate and the rights and interests of the cestui que trust, proceeds to remark: "Finally, he is to act in relation to the trust property with reasonable diligence ; and, in cases of a joint trust, 'Hill on Trustees, 308; Townley v. Sherbourne, Bridg., 35; Brice r. Stokes, 11 Ves., 319; Story's Eq. Jiir., sec. 1275; Mumford v. Murray, 6 Johns. Ch., 1, 452; Bowman v. Raineteaux, Hoff., 150. ^ Story's Eq. Jur., sec. 1275, 1280; Taylor v. Roberts. 3 Alab., 86; State V. Guilford, 15 Ohio, 509; Latrobe v. Tiernan, 2 Md. Ch., 480; Osgood v. Franklin, 2 J. Ch. R., 1; Leigh v. Barry, 3 Atk., 583; Kerr v. Waters, 19 Geo., 136. ' Townley v. Sherbourne, Bridg., 35; see Brice v. Stokes, 11 Ves., 319. 570 OF THE GENERAL DUTIES AND he must exercise due caution and vigilance in respect to the approval of, or acquiescence in, the acts of his co-trustees ; for, if he should deliver over the whole management to others, and betray supine indifference or gross negligence in regard to the interests of the cestui que trust, he will be held responsible;"^ and he adds, "these remarks apply to the ordinary case of a trustee having a general discretion, and exercising his powers without any special directions. But where special directions are given in the instrument creating the trust, or special duties are imposed upon the trustee, he must follow out the objects and intentions of the parties faithfully, and be vigilant in the discharge of his duties. There are, necessarily, many incidental duties and authorities belonging to almost every trust, which are not expressed. But these are to be as steadily acted upon and executed, as if they were expressed.^ Wherever the trustee has a duty to perform in respect to the trust property, if he be guilty of gross neglect of that duty, he will be deemed guilty of a breach of trust, and held answerable for the consequences. No one is compelled to accept the office of trustee, and take upon himself the burdens thereof; but if he do accept it, it is but just that he should be held to a faithful discharge of its du- ' Story's Eq. Jur., sec. 1275; Oliver t;. Court, 8 Price Rep., 127; see Thompson v. Finch, 39 Eng. L. and Eq., 97; McMurry v. Montgomery, 2 Swan, (Tenn.,) 374. * Story's Eq. Jur., sec. 1276; see Mitf. Eq. PL, by Jeremy, 133, 134; Leech v. Leech, 1 Ch. Ca., 249; see Ellig v. Naglee, 9 Cal., 683; Landis v. Scott, 32 Penn. St. Rep.. 495. LIABILITIES OF TRUSTEES. 571 ties.^ While it is true, therefore, that, as a general rule, trustees are not liable for the acts of each other, yet if they deliver over the whole management to a co-trustee, and manifest a supine indifference or gross negligenceinregardto the interest of the cestui que trust, they will be held answerable. Thus, where two trustees, with power of sale, had conveyed the estate to the purchaser, and had both signed the receipt for the money, yet one of them only had received it, and ten years after died insolvent, with- out having accounted for the money, and it was proved that his co-trustee was cognizant of the mis- employment of the fund, but took no active meas- ures to recover it out of his hands, the court held he had been guilty of a breach of trust, and was answerable, remarking "that, as soon as a trustee is fixed with a knowledge that his co-trustee is mis- applying 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,"^ for a trustee is bound to manage and employ the trust property for the benefit of the cestui que trust, with the care and diligence of a provident owner.^ * Cooper V. McClun, 16 111., 435. " Brice v. Stokes, 11 Ves., 319; Williams v. Nixon, 2 Beav., 475; Booth V. Booth, 1 Beav., 125; see also Bone v. Cook, McClel., 1G8; Gregory v. Gregory, 2 Y. & C, 31-3; Lincoln v. Wright, 4 Beav., 427; see also Jones' Appeal, 8 W. & S., 147; Evans' Estate, 2 Aslim., 470; Ringgold v. Ring- gold, 1 II. 8t G., 11; State v. Guilford, 15 Ohio, 593; Deaderick v. Can- trell, 10 Yerg., 264; Wayman v. Jones, 4 Md. Ch., 506; see also Burrows V. Walls, 35 Eng. Law and Eq.. 139. = Hutchinson v. Lord, 1 Wis., 286; Higgins v. Whitson, 20 Barb., 141; see also Wiles v. Gresham, 31 Eng. L. and Eq., 237; Bate v. Hooper, 35 Eng. L. and Eq., 160; Burrows v. Walls, 35 Eng. L. and Eq., 139; Brown V. Campbell, Hop., 233; Litchfield v. White, 3 Sand., 545; see also Pierson V. Thompson, 1 Edw-, 212. 572 OF THE GENERAL DUTIES AND]; It sometimes happens that it is necessary and proper, for the due discharge of the trust, that the trust property should be committed exclusively to the charge of one or more of the co-trustees, und when this is the case, the other trustees will not be liable for the subsequent acts of those to whom it has been so committed. Said Lord Cottenham/ "when the loss arises from the dishonesty or failure of any one to whom the possession of part of the estate has been entrusted, necessity, which includes the regular course of business in administering the pro- perty, will, in equity, exhonerate the personal rep- resentatives. But if, without such necessity, he be instrumental in giving to the person failing, posses- sion of any part of the property, he will be liable, although the person possessing it be a co-executor or co-administrator." Upon this latter principle, where a trustee joins in any act, or in carrying into effect any arrangement, by which the trust property is taken from the joint control of the trustees, and is placed at the sole disposal or under the manage- ment of one or more of their number, by which it is lost, the trustee or trustees so acting, without a reasonable necessity for so doing, will be liable for the consequences ; for by so acting, the security of the trust property is diminished, and thus, he or they become directly accessory to its loss.^ >Cloughu. Bond, 3 M. & Cr., 490; Att'y Gen. v. Randall, 2 Eq. Ca, Abr., 742; ex parte Griffin, 2 Gl. & J., 114; Williams v. Nixon, 2 Beav., 472; Terrell v. Matthews, 11 Law Jour., N. S., Chancery, 31. " See Sadler v. Hobbs, 2 Bro. C. C, 114; Scurfield v. Hawes, 3 Bro. C. C, 90; Chambers v. Minchen, 7 Ves., 198; Shipbrook v. Hinchenbrook, 11 Ves., 252; Brice v. Stokes, 11 Ves., 319; Hanbury v. Kirkland, 3 Sim., LIABILITIES OF TRUSTEES. 573 There can be no question of the propriety and justice of this rule in all cases where there was not a reasonable necessity for placing the management of the property or funds under the control of such trustee or trustees. But where a trustee has acted in good faith, and in the exercise of a fair discre- tion, and in the same manner as he would ordinarily do in the management of his own property, there being a reasonable necessity for so doing, he ought not to be held responsible.^ As to what constitutes a reasonable necessity, there may, at times, be some difficulty in determining. But as a general rule, it will be found to be such a necessity as would induce men of prudence and discretion in the transaction of their own business, to pursue the same or a sim- ilar course under the like circumstances.^ It has already been seen that it is a prime duty of the trustee to protect the trust estate from any misfeasance by his co-trustee ; therefore, when any such intended purpose comes to his knowledge, he should seek promptly to prevent it, by injunction, if necessary, and where the act has already been 265; Keble v. Thompson, 3 Bro. C C, 111; French v. Hobson,9 Ves., 103; Joy V. Campbell, 1 Sch. &, Lef., 341; Moses d. Levi, 3 T. & Col., 359; Clough V. Bond, 3 M. & Cr.. 497: or join in signing a draft or order, see Saddler v. Hobbs, 2 B. C. C, 114; Broadhurst v. Balguy, 1 N. C. C, 16: or execute a joint power of attorney, Harrison v. Graham, 1 P. Wms., 241, n; Hewett v. Foster, 6 Beav., 259; Mumford v. Murray, 6 John. Ch., 452; Bowman v. Raineteaux, HofF., 150: see stock disposed of under a joint power, Spencer v. Spencer, 11 Paige, 299; Monell v. Monell, 5 Johns. Ch.; 283; Mesick v. Mesick, 7 Barb., 120. ' Story's Eq. Jur., sec. 1272; Hart v. Ten Eyck, 2 Johns. Ch. Rep., 76; Thompson v. Brown, 4 Johns. Ch. Rep., 619. '"Clough V. Bond, 3 M. & Cr., 490; Att'y Gen. r. Randall, 2 Eq. Ca. Abr., 742; ex parte Griffin, 2 Gl. & J., 114. 574 OF THE GENERAL DUTIES AND committed, he should take the necessary measures to comjDcl the restitution of the property, and the application of it to the purposes and objects of the trust : and a failure to do this will make him liable for a breach of his duty.^ If, therefore, a trustee permits the trust funds or property to remain for a long time in the hands of a co-trustee, uninvested, or not properly secured, he is guilty of that negligence which will make him liable in case of loss : for it is a duty he owes to those interested, to see that the trust funds are pro- perly invested and secured.^ The fact that all the trustees have joined in the receipt for money will not of itself make them all liable where the money was received by only one of their number ; and those who have not received will be at liberty to show that the money for which their receipt was given, was never in their hands or directly under their control.^ This is permitted, because, in trans- actions with trustees, it is essential for the security of those dealing with them that all should sign the receipts ; and therefore it was well said, " that it * In re Chertsey Market, 6 Price, 279; Powlett v. Herbert, 1 Ves., Jr., 297; Walker V. Symonds, 3 Sw., 71; Hanbury d. Kirkland, 3 Sim., 265; Mmnford v. Murray, 6 J. C. Rep., I; Ringgold v. Ringgold, 1 H. & G-, 11; Bowman v. Raineteaux, Hoff., 150. '' Brice v. Stokes, 11 Ves., 319; Weigand's Appeal, 28 Penn. St. Rep., 421; Challan v. Sheppan, 4 Hare, 452; Pim v. Downing, 11 S. & R., 71; Gregory v. Gregory, 2 Y. & C., 313; Scurfield v. Hawes, 3 Bro. C. C, 91; Hanbury v. Kirkland, 3 Sim., 265; but see White v. Bullock, 20 Barb., 91. ' Townley v. Sherbourne, Bridg., 35; Brice v. Stokes, 11 Ves., 324; ex parte Belchier, Amb., 219; Chambers v. Minchin, 7 Ves., 198; Webb u. Ledsam, 1 Kay & John., 388; Jones' Appeal, 8 W. & S., 147; Monell v. Monell, 5 J. Ch. R., 283; Deaderick i). Cantrell, 10 Yerg., 264; Kip v. Deniston, 4 John. Rep., 23; Manahan v. Gibbons, 19 Johns., 427. LIABILITIES OF TRUSTEES. 575 would be tyranny to punish a trustee for an act which the very nature of his office would not permit him to decline."^ In this respect a distinction has been taken between trustees and executors, whose concurrence in acts relating to the estate are not necessary. It has been held that, if an executor joins with his co- executor in a receipt, he does an unnecessary act ; and interferes where the nature of his office does not require it of him, and therefore he shall be answer- able.^ But it is extremely doubtful whether the distinction between trustees and executors, in this respect, is as great as the above cited cases would indicate. The reason assigned for the distinction would not seem to demand that a co-executor should be liable in equity for merely signing his name unnecessarily to a receipt, where it was not intended to make him responsible, and no one had been mis- led or injured thereby. Accordingly, Lord North- ington, in the case of Westley v. Clark,^ qualified * Lewin on Trusts, 305. ^ Aplyn V. Brewer, Pr. Ch., 173; ex parte Belcliier, Amb., 219; Leigh v. Barry, 3 Atk., 584; Darwell v. Darwell, 2 Eq. Ca. Abr., 456; Gregory v. Gregory. 2 Y. & C, 316; Johnson v. Johnson, 2 Hill's Eq., 290; Monell v. Monell, 5 J. Ch. R.. 288; Manahan v. Gibbons, 19 John., 427; Jones' Ap- peal, 8 W. &. S., 147; Clark v. Jenkins, 3 Rich. Eq., 318; Ducommuu's Appeal, 17 Penn. St. Rep., 270. ^ Westley v. Clark, 1 Ed., 357. In this case, Thompson, one of three co-executors, had called in a sum of money secured by mortgage for a term of years, and received the amount, and afterwards, in the same day, sent round his clerk to his co-executors with a particular request that they would execute the assignment and sign the receipt, which they did. Thomp- son afterwards became bankrupt and the money was lost, and thereupon a bill was filed to charge the co-executors. See likewise Scurfield v. Howes, 3 Bro. C. C, 94; Hovey v. Blakeman, 4 Ves., 608; Walker v. Symonds, 3 676 OF THE GENERAL DUTIES AND the application of that rule. He held that the rule that executors joining in a receipt were all liable, amounted to no more than this, " that a joint receipt given by executors is a stronger proof that they actually joined in receiving the money because, generally, they had no occasion to join for conform- ity. But, if it appear plainly that one executor only received and discharged, etc., and the others joined afterwards, without any reason, and without being in the capacity to control the act of their co- executor, either before or after that act was done, what ground 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 authori- ties may and ought to bind the determination of subsequent cases with respect to rights, as in the right of dower, or curtesy, yet there can be no rule for the future determination of this court concern- ing the acts of men." His Lordship held in that case, that the only act which affected the assets of the estate was done by the acting executor who discharged the debt, and that the subsequent act of his co-executors was merely nugatory ; and, therefore, for that act, they were not liable. In respect to this distinction between co-trustees and co-executors, Mr. Story remarks:^ "The propriety Sw., 64; Churchhill v. Lady Hobson, 1 P. Wms., 241; Joy v. Campbell, 1 Sch. &Lef.,341; Story's Eq. Jur., sec. 1281; Stell's Appeal, 10 Barr, 152; Ochiltree V. Wright, 1 Dev. & Batt. Eq., 336; McNair's Appeal, 4 Rawle. 155. ' See Story's Eq. Jur., sec. 1281, and note (3), 7th ed.; see also Hill on Trustees, 450, note (1), 3d Am. ed., by Wharton. LIABILITIES OF TRUSTEES. 577 of the doctrine which, in favor of trustees, makes them liable only for their own acts and receipts, has never been questioned, and, indeed, stands upon the principle of general justice. There is a good deal more question as to the distinction which is made unfavorably to executors. In truth, upon general reasoning, it seems difficult to maintain its sound policy, or practical convenience, or intrinsic equity. It has, on this account, sometimes been struggled against. But it is finally established, as a general rule, in the Equity Jurisprudence of Eng- land, although, perhaps, not universally in that of America."^ A careful examination of the modern adjudications of this rule against executors, plainly demonstrates that a sense of intrinsic justice is protesting against sacrificing the rights of the exe- cutor to a rule of doubtful policy. The most that has been said in favor of the rule, was said by Lord Eldon in the case of Chambers v. Minchin : - "A plain general rule, which once laid down was easily understood and might be generally known, was much more inviting to executors than a rule refer- ring everything to the particular circumstances." But, a rule like that, based upon a single fact of such doubtful significance as the mere joining in a receipt by a co-executor, if strictly adhered to, can not fail to work injustice.^ ' See preceding note. ^ Chambers v. Minchin, 7 Ves., 197. ' See the reasoning of Chancellor Kent in Monell v. Monell. 5 Johns. Ch. Rep., 283; Manahan v. Gibbons, 19 Johns. Rep., 427; Sutherland v. Brush, 7 Johns. Ch. Rep., 22; see Lord Alvanly, in Scurfield v. Howes, 3 Bro. C. 37 578 OF THE GENERAL DUTIES AND Mr. Story/ with his usual clear perception of the right, and comprehensive expression of the same, remarks: "Perhaps, the truest exposition of the principle which ought, in justice, to regulate every case of this sort, whether it be the case of execu- tors, guardians, or of trustees, is that which has been adopted by a learned equity judge of our own country. It is, that if two executors, guardians, or trustees, join in a receipt for trust money, it is, 'prima facie, although not absolutely conclusive, evidence that the trust money came to the hands of both. But either may show, by satisfactory proof, that his joining in the receipt was necessary, or merely formal, and that the money was, in fact, all received by his companion. And, without such satisfactory proof, he ought to be held jointly liable to account to the cestui que trust for the money, upon a fair implication resulting from his acts, that he did not intend to exclude a joint responsibility."^ " But, wherever either a trustee or an executor, by his own negligence or laches, suffers his co-trus- tee or co-executor to receive and waste the trust fund or assets of the testator, when he has the means of preventing such receipt and waste, by the exercise of reasonable care and diligence, then, and C, 94; also in Hovey v. Blakeman, 4 Ves., 608; Lord Northington. in Westley v. Clark, 1 Eden, 357; Lord Harcourt, in Churchhill v. Lady Hobsou, 1 Pr. Wms., 241. * See Story's Eq. Jur., sec. 1283, and he cites Monell v. Monell, 5 John. Ch. R., 296; see also Hovey v. Blakeman, 4 Ves., 596; Crosse v. Smith, 7 East Rep., 244; Scurfield v. Howes, 3 Bro. C. C, 93; Westley v. Clark, 1 Eden Rep., 357; Soy v. Campbell, 1 Sch & Lef., 341 ; Sutherland v. Brush, 7 Johns. Ch. Rep., 22; Monell v. Monell, 5 Johns. Ch. Rep., 283; White v. Bullock, 20 Barb., 91; see Mesick v. Mesick, 7 Barb., 120. LIABILITIES OF TRUSTEES. 579 in such case, such trustee or executor will be held personally responsible for the loss occasioned by such receipt and waste of his co-trustee or co-exe- cutor."^ " Or if by any positive act, direction or agreement of one joint executor, guardian or trus- tee, the trust money is paid over and comes into the hands of the other when it might and should have been otherwise controlled or secured by both, then each of them will be held chargeable for the whole.^ And if one trustee should wrongfully suf- fer the other to detain the trust money a long time in his own hands, without security, or should lend it to the other on his simple note, or should join with the other in lending it to a tradesman upon insufficient security, he will be deemed liable for any loss.*^ ' Clark V. Clark, 8 Paige, 152; Edmonds r. Cronshaw, 14 Peters, 166; Williams r. Nixon, 2 Beav., 472; Story's Eq. Jur., sec 1283; Brice v. Stokes, 11 Ves.. 319; AYalker v. Symonds, 3 Sw., 41; Oliver v. Court, 8 Price, 166; in re Chestersy Market, 6 Price, 279; Styles v. Guy, 1 Mae. 8c Gor. 422; and see Scully v. Delany, 2 Ire. Eq. Rep., 165; see also Thomp- son V. Finch, 39 Eng. L. and Eq. Rep., 97; McMurray v. Montgomery, 2 Swan, (Tenn.,) 374. ' Story's Eq. Jur., sec. 1284; Gill v. Att'y Gen.. Hard. R.. 314; Lord Shipbrook v. Lord Hinchinbrook, 16 Ves., 479; Sadler v. Hobbs, 2 Bro. C. C, 116; Monell v. Monell, 5 Johns. Ch. R., 294; Townsend v. Barber, 1 Dick, 356; Moses v. Levi, 3 Y. & C, 359; Hovey v. Blakeman, 4 Ves., 608; Clough v. Dixon, 8 Sim., 594, and 3 M. and Cr., 490; White v. Bul- lock, 20 Barb., 91. ^ Sadler v. Hobbs, 2 Bro. C C, 114; Keble v. Thompson, 3 Bro. C. C, 112; Brice v. Stokes, 11 Ves., 319; Mumford v. Murray, 6 John.Ch. R., 1, 16; Williams v. Nixon, 2 Beav., 475; see also Pim v. Downing. 11 S. & R., 71; also^Estate of Evans, 2 Ashm. 470; Bowman v. Raineteaux, HofiF.,150; Spencer v. Spencer, 11 Paige, 299; Mesick i;. Mesick, 7 Barb., 120; see White V. Bullock, 20 Barb., 91. Where administrators give a joint bond, each is liable for the other, etc., unless the bond show a contrary intent. See Pearson v. Darrington, 32 Alab., 227. 580 OF THE GENERAL DUTIES AND It is usual to insert in instruments creating the trust, a clause declaring that one trustee shall not be answerable for the receipts, acts or defaults of his co-trustee. But this proviso, while it may tend to mislead the trustee as to the extent of his liabil- ity, adds nothing to his security against the liabili- ties of the office. 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 expressed, equity necessarily implies.^ As the liability of the trustee is determined by first determining his duty, his general and particu- lar liabilities must depend upon his general and par- ticular duties. One of the first duties of the trustee is to place the trust property in a state of security. If it consist in a mere equitable interest in a legal estate, which cannot be transferred to him imme- diately, he should give notice without delay, to the one in whom the legal estate is vested.^ If the trust fund consists of a chose in action, which may be reduced to possession, and thus be placed under his own control, any unnecessary de- lay in getting it into possession, by means of which it is lost, will render him liable. The doctrine is, if a person accept the trust he must perform it ; he must use due diligence and not permit the interests of the beneficiary to suffer through negligence. If there be a crassa negligentia, and a loss sustained by ' See Westley v. Clark, 1 Eden, 360; Dawson v. Clark, 18 Ves., 254; Worrall V. Harford, 8 Ves.. 8; see also Brice v. Stokes, 11 Ves., 319; Williams v. Dixon, 2 Beav., 472. * Jacobs V. Lucas, 1 Beav.. 436. LIABILITIES OF TRUSTEES. 581 the estate, it shall fall upon the executor, etc.^ Accordingly, a trustee or an executor must not allow the assets of his testator to be outstanding upon mere personal security ; but if necessary he must institute legal proceedings for their recovery; and it will make no difference, though the testator himself created the debt by a loan on what he con- sidered an eligible investment.^ But upon a ques- tion of imputed negligence in not collecting a note, the trustee may show that before the plaintiff acquired an interest, the others beneficially inte- rested, directed him to pursue the course of delay which was attributed as negligence.^ It has already been observed that the trustee in the management of the trust estate is required to act with the pru- dence and discretion of a discreet man in the man- agement of his own affairs : that is, he must exercise the same care and solicitude for the interest of his cestui que trust he would for his own interests. This is all a Court of Equity will exact of him."* * Caffry v. Darby, 6 Ves., 488; McGachen v. Dew, 15 Beav., 84; Warring V. Warring, Ir. Ch. Rep., 335; Wiles v. Gersham, 2 Drew, 258; Tebbs v. Carpenter, 1 Mad., 290; Shultz v. Pulver, 3 Paige, 182, aff'd 11 Wend., 361; see also Litchfield v. White, 3 Sand., 545; Weigand's Appeal, 28 Penn. St. Rep., 471; Tuttle v. Robinson, 33 N. H., 104; Wiles v.Gersham, 31 Eng. L. and Eq., 237; Cartwright v. Cartwright, 4 Hay, 134. " Powell V. Evan, 5 Ves., 839; Bullock v. Wheatly, 1 Coll., 1.30; Lowson t). Copcland, 2 Bro. C. C, 156; Tebbs v. Carpenter, 1 Mad., 298; Clough V. Bond, 3 M. 8t Cr., 496; see a very strong case in Styles v. Guy, 1 Mac. &Gor.,422. ' Johnson v. Kendall, 20 N. H., 304. * Morley v. Morley, 2 Ch. Ca., 2, per Lord Northington; Jones v. Lewis 2 Ves., 241, per Lord Hardwick; Massey v. Banner, 1 Jac. & Walk., 247, per Lord Eldon; and also Att'y Gen. v. Dixie, 13 Ves., 534, per Lord Eldon; Higgins v. Whitson, 20 Barb., 141; Hutchinson v. Lord, 1 Wis. 286; Litchfield v. White, 3 Sand., 545. 682 OF THE GENERAL DUTIES AND If the subject of the trust be money, which is to be kept for a temporary purpose, the most proper way is to deposit it in some responsible banking house. ^ But in making such deposit he should be careful to do it to the account of the trust estate, and not to his own account ; for should he deposit the money to his own account, he would render himself liable for it, on the failure of the bank.^ If the trustee deposits the trust funds in his own name, he thus mixes them with his own private funds, which always renders him liable in case of loss.^ Neither must the trustee so deposit the money as to put it out of his own control ; if he do so, and the bank fail he will be liable ;'' neither must he loan the money to the bank upon no other security than their notes ; for this could not be distinguished from an ordinary loan on personal security, which the court never sanctions.^ * Rowth V- Howell, 3 Ves., 565; Adams v. Caxton, 6 Ves., 226; Johnson V. Newton, 11 Hare, 160. ' Wren v. Kirton, 11 Ves., 377; Fletcher v. Walker, 3 Mad., 73; McDon- nell V. Harding, 7 Sim., 178; Mathews v. Brise, 6 Beav., 239; Matter of Stafford, 11 Barb., 353; McAllister v. Commonwealth, 30 Penn. St. Rep., 536; see also Kirkman v. Benham 28 Alab., 501. => Lupton r. White, 15 Ves., 432; Chcdworth v. Edwards, 8 Ves., 46; Duke of Leeds r. Earl Amherst, 20 Bcav., 239; Fellows v. Mitchel, 1 P. Wms., 83; Massey v. Banner, 1 Jac. & Walk., 241; Pennell v. Deffield, 4 DeGex., Mac & Gor., 386, 392; see^Hart v. Bulkley, 2 Edw., 70; Theolo- gical Seminary of Auburn v. Kellogg, 2 Smith, 83; see also Spear v. Tink- bam 2 Barb. Ch., 211; also Gardner v. Gardner, 1 Edw., 128; see also Brackenridge v. Holland, 2 Blackf., 377; Myres r. Myers. 2 McCord's Ch. Rep., 267; Stanley's Appeal, 8 Penn. St. Rep., 431. 4 Salway v. Salway, 2 R. & M., 215, 220; but see Kilbee v. Sneyd, 2 Moll. 186; see remarks of Lord Chancellor Hart, on pages 200, 203, 213. ^ Darke v. Martin, 1 Beav., 525; Vigrasse r.Binfleld, 3 Mad., 62; Walker V. Symonds, 3 Sw., 63; Blackwood v. Borrows, 2 Conn, and Laws, 477; AVatts V. Girdlestone, 6 Beav., 188; Holmes v. Dring, 2 Cox, 1. LIABILITIES OF TRUSTEES. 683 Upon the principle that the trustee is required to exercise no greater care and solicitude for the interest of his cestui que trust, than he would for his own interest : where an executor has been rob- bed of the money belonging to the estate without any fault of his own, he will not be held respon- sible.^ So, also, where the executor had put bonds and notes, due to his testator, into the hands of an attorney to collect, and after the death of the exe- cutor the attorney collected the money and applied it to his own use, and became insolvent : It was held that the estate of the executor was not charge- able with the loss.^ But if an executor should employ a person, not being a solicitor, to foreclose a mortgage in equity, and a loss should ensue in consequence, he would be answerable.^ Purchases made by trustees, executors, adminis- trators and guardians, when made in obedience to the duties of the trust, impose upon them personal liability ; and the seller must look to them, and they to the trust estate for reimbursement.'* As the liabilities of trustees are based upon a breach of duty or trust, a trustee must commence, prosecute, and defend all necessary actions at law or in equity, for the enforcement or protection of the interests of the cestui que trust. Thus, in de- fending an action of foreclosure, he should demand ' Furnam v. Coe, 1 Caine's Cas., 96; Croft v. Lindsey, 2 Frera., 1; Jones r. Lewis, 2 Ves., Sr., 240. " Raynor v. Pearsall, 3 J. Ch. R., 578. ' Wakeman v. Hazleton, 3 Barb. Ch., 148. ^ Sanford •;;. Howard, 29 Alab., 684; Harding r. Evans, 3 Port., 221; Lovell V. Field, 5 Vern., 218. 684 OF THE GENERAL DUTIES AND the fullest proof ; and in actions touching the trust estate, he is entitled, if not absolutely bound, to take every objection, even the most technical, which the law permits.^ But the executor is not bound to maintain a contest with the heir as to the vali- dity of the will." Although debts of the testator, of every descrip- tion, in the hands of the executor, are assets, yet he is not to be charged with them until he has reduced them to possession.^ The rule is, an out- standing debt due the decedent is not assets in the hands of his executors or administrators, where there has been no gross negligence or collusive, fraudulent or unreasonable delay in collecting it."* So, likewise, if an executor or administrator recov- ers at law or in equity, any damages or compensa- tion for any injury done to the personal estate of the testator or intestate, before or since his decease, or for the breach of any covenant or contract made with the testator, or himself in his representative character, such damages become assets in his hands, but he is not chargeable with them until he reduce them into his possession.^ But if the executor does anything which the law deems equivalent to redu- cing it to possession, he will then be chargeable ; » Calwalder v. Calwalder, 26 Miss., (5 Jones,) 76; Berrien v. McLane, Hoff., 421; Wood v. Burnham, 6 Paige, 513. " Andrews v. Administrators, 7 Ohio, N. S., 143. ' See Com. Dig., Assets, (D.); Bacon's Abr., Ex'ors, (H.,) 2. * Ruggles V. Sherman. 14 John. Rep., 446; Jones v. Williams, 2 Call., 102; Tuttle v. Robinson, 33 N. H., 104; Deberry v. Irey, 2 Jones' Eq.. 370; Douthelt V. Douthelt, 1 Alab., 594. " Jenkins v. Plume, 1 Salk., 207; Lowe v. Plaskett, 16 C B., 500; Wil- liams V. Inness, 1 Campb., 364. LIABILITIES OF TRUSTEES. 585 as, if he release the debt or damages, it amounts to a receipt ;^ or take an obligation in his own name f this amounts to a discharge of the original debt or demand. As the trustee holds the trust estate for the bene- fit of the cestui que trust, it is his duty to make the trust funds productive,, by investments of it on proper securities : and, beside, it is one of the pro- perties of his office that he shall not himself profit thereby ; therefore, the court will watch vigilantly the use of the trust funds in the hands of the trus- tee; and if he fails to make the proper investments of them, by which they may be made productive and secure, the court will punish him by charging him with the interest, and, in case of loss, with the principal also.' Thus, a trustee who neglects to pay over, or mixes the trust funds with his own money, must pay interest.'^ But where money is kept on hand which is liable to be paid at any moment, he will not be charged with interest.^ > Cocke V. Jenner, Hob-, 66; Brightman v. Knightley, Cro. Eliz., 43; Williams' Ex'ors, 1509. « Jenkins v. Plume, 1 Salk., 207; S. C, 6 Mod., 181. ^ Moylc V. Moyle, 2 R. & M., 710; Johnston v. Newton, 17 Jur., 826 Darke ^,. Martin, IBeav., 525; see Dennis v. Kennedy 19 Barb., ol7 Jennison .. Ilapgood, 10 Pick., 77; Dexter .. Arnold, 3 Mason, 204 Minuse v. Cox, 5 Johns. Ch. Rep., 441; Hosack v. Rodgers, 9 Paige, 461 Schieffelin v. Stewart, 1 Johns. Ch., 620; Turner v. Turner, 1 J. & W., 39 Tickner v. Smith, 3 Sm. & Gif., 42. * Mumford t-. Murray, 6 Johns. Ch.,1; see Clarkson r.De Peyster, Hop., 424; Ackerman v. Emett, 4 Barb., 626; Rapalye a,. Hall, 1 Sandf. Ch., 399; Theological Seminary of Auburn v. Kellogg, 2 Smith, 83; Ogilvie v. Ogilvie, 1 Brad., 356; Garnis v. Gardiner, 1 Edw., 128; Spear i>.Tmkham, 2 Barb. Ch.; 211; Stevens v. Van Buren, 1 Paige, 479; Dunscomb i;. Duns- comb, 1 Johns. Ch., 508. " Jaest V Emmett, 11 Paige, 142; see also January r.Pomts, 2 B. Monr., 406; see Child v. Abingdon, 1 Yes., 93; Cassel v. Yornou, 5 Mason, 332. 586 OF THE GENERAL DUTIES, ETC. The principle is well settled, that if an executor or administrator keeps money in his hands idle, which might be safely paid out, while there is an outstanding debt, which is drawing interest, he will be charged with interest on a sum equal in amount, and at the same rate ; ^ and after the payment of the debts and legacies, he must not be guilty of any laches in accounting for the surplus to those Avho are entitled to it; if he is, he will be charged with interest.^ Nor can he excuse himself by saying that he made no actual use of the money, but lodged it at his bankers.^ It was a breach of trust for him to retain the money, and not make it productive to the cestuis que trust. So, also, where an agent or trustee makes no effort to obtain a tenant for land of his principal, but occupies it himself, he must respond in the highest rent which could have been obtained.* ' Hall V. Hallctt, 1 Cox, 134; Turner v. Turner, 1 J. & W., 89; Jenning V. Davis, 5 Dana, 132; Whiting v. Walker, 2 B. Monr., 262; see also Taw V. Earl of Winterton, 1 Ves., 451; Pocock v. Reddington, 5 Ves., 799. ' Young V. Combe, 4 Ves., 101; Longmore r. Broom, 7 Ves., 124; Rocke V. Hart, 11 Ves., 58; Ashburnham v. Thompson, 13 Ves., 402; Raphael v. Boehm, 11 Ves., 92, and 13 Ves., 407, and noticed 590; Franklin v. Frith, 3 Bro. C. C, 433; Lincoln r. Allen, 4 Bro. C.C.,553; Holgate r.Haworth, 17 Beav., 2-59; Tew v. Winterton, 1 Ves., 451. ' Franklin v. Frith. 3 Bro. C. C, 433; Browne v. Southhouse, 3 Bro. C. C, 107; Treves v. Townshend, 1 Bro. C. C, 384; Tounge t>. Combe,4 Ves., 101; Rocke v. Hart, 11 Ves., 60; Hilliard in bankruptcy, 1 Ves., 89; Daw- son V. Massey, 1 Ball & Beat., 230. * Landis v. Scott, 32 Penn. St. Rep,, 495. INVESTMENTS BY TRUSTEES, ETC. ^^Y Section II INVESTMENTS BY TRUSTEES, THEIR DUTIES AND LIABILITIES IN RESPECT THERETO. It is the duty of a trustee to so administer the trust as to make it both secure and productive to the cestui que trust, if that can be done. Where there are trust moneys on hand which are not required for immediate use, or by a " short day," as it is sometimes called, the trustee should, if possi- ble, make them productive to the cestui que trust, by investing them on proper security. For, if he keeps funds on hand idle, when he might safely and profitably invest them, he will be chargeable with the interest himself, although he has received none.' The investment of trust funds by the trus- tee, is one of his most important duties, both as resipects the interest of the cestui que trust, and also his own safety. The first principle to be observed by the trustee, in making investments, is to follow, as nearly as possible, the directions contained in the trust instrument, if there are any on the subject of investment.^ For, if the trust instrument should . Turner .. Turner, IJ. & W. , 39; Tickner .. Smith 3 Sn. & Gif. 42; Fletcher .. Walker, 3 Mad.. 73; Munch - ^o^^-f ^' ^/™; '^' f^'. Lomax .. Pendleton, 3 Call., 538; Garnis .. Gardner^ 1 Edw CI., 128, Williamson .. Williamson, 6 Paige, 298; Dunscomb .. Dunscomb, 1 John^ Ch. R., 508; Handley .. Snoodgrass, 9 Leigh, 484; Armstrong .. M ller 6 Ham 118; Chase .. Lockerman, 11 G. & J-, 185; DUhard .. Tomlmson, f M^m . 183; Carter ..Cutting, 5 Mumf., 223; Worrell's Appeal,23 Penn. St r1 44; Barney .. Saunders, IG How. U- S-, 544; see also Lyles .. Ha'tton 6G &J.,122; Turney .. Williams, 7 Terg 172; Griswold .. r.handler 5 N. H., 497; Harrison v. Mock, 10 Alab., 193. See Rogger, .. Patterson, 4 Paige, 409; BurriU .. Shell, 2 Barb , 467. 588 INVESTMENTS BY TRUSTEES, ETC. direct any particular manner of investing, or specify the nature of the investment to be made, and the trustee should follow the directions as nearly as possible, he will not be responsible for any loss arising from such course/ Thus, in the absence of directions in the trust instrument to that effect, the trustee will not be justified in lending the trust funds on personal security.^ But where he is expressly empowered to do so by the instrument creating the trust, he will not be liable.^ But a power to invest on personal or any other unusual security will be construed strictly. Thus, where joint trustees were empowered to lend on personal security, they were not permitted to lend to one of their own number, because the court thought the settler must have intended to rely upon the united vigilance of all the trustees with respect to the solvency of the borrower."* Where, also, the trustees of a marriage settlement held the bond of the husband for a sum of <£2,000, which, according to the trusts of the settlement, they were to permit to remain on this security ' Hill on Trustees, 368; see Forbes v. Ross, 2 Bro. C. C, 430; S. C, 2 Cox, 113 ^ Darke v. Martyn, 1 Beav,, 525; Holmes v. Dring, 2 Cox, 1; Vigrase v. Binfielcl, 3 Mad., 62; Walker v. Symonds, 3 Sw.,63; Watts v. Girdlestorie, 6 Beav., 188; Collis v. Collis, 2 Sim., 365; Keble v. Thompson, 3 Bro. C. C., 112; Blackwood v. Borrowes, 2 Conn, and Laws, 477; Wormley v. Wormley, 8 Wheat., 421; Ackerman v.Emott,4 Barb.,626; Nyce's Estate, 5 W. & S., 254; Swoyer's Appeal, 5 Barr, 377; Willis' Appeal, 22 Penn. St. Rep., 330; Fowler v. Reynal, 3 Mac. & C, 500; Gray v. Fox, Saxton, (N. J.,) 259; Smith v. Smith, 4 Johns. Ch. Rep., 281, ' Forbes v. Ross, 2 Bro. C C, 430; S. C, 2 Cox, 113. * 1). Walker 5 Russ., 7; Westover v. Chapman, 1 Coll., 177; Stickney v. Sewell, 1 M. & C, 14. INVESTMENTS BY TRUSTEES, ETC. 589 with the written consent of the husband and wife, or otherwise to call it in, and invest on government security with their like consent : the trustees, not requiring the written consent or any other, permit- ted the money to remain on the bond, and the hus- band became bankrupt. A composition was made by him of 16s. on the pound, and paid to the other creditors, and the fiat was annulled, the trustees consenting thereto. They did not receive the com- position, and the husband again became bankrupt. After the first bankruptcy, the trustees obtained the written consent of the wife that the money should not be called in. The whole was ultimately lost, although it was held that the 16s. on the pound might have been recovered. Upon these facts it was held, first, there had been no breach of trust prior to the first bankruptcy ; second, on that event it was the duty of the trustees to have called in the money; third, the subsequent consent of the wife did not protect the trustees, and fourth, that the trustees were liable for the whole amount of the je2,000, as it was impossible to say whether, if the first bankruptcy had been prosecuted, the bankrupt would have obtained his certificate.^ So, where trustees were empowered to loan je3,000 on personal security, and they loaned je5,000, and it was lost, they were held liable for a breach of trust as having exceeded their authority.^ So, also, ' Wiles V. Gresham, 24 Law J. Ch., 264; S. C. 2 Drew, 258; see also Bateman v. Davis, 3 Mad., 98; Cocker v. Quayle, 1 R. & M., 535; Norris f. Wrightj 14 Beav., 303. ' Poryne v. Collier, 1 Ves., Jr., 170. 590 INVESTMENTS BY TRUSTEES, ETC it has been held, that in a settlement, a power to lend trust money to the husband on his bond, will not authorize a loan to him on his promissory note.^ So, also, where the trustees were authorized to lend the trust funds upon real or personal security, as should be thought good and sufficient ; and these funds were in trust for A. for life, remainder for her children ; and they lent the money to a person in trade, whom A. had married, and the funds were lost, the trustees were held responsible. Sir William Grant said, " the authority did not extend to an accommodation, and it was evident that, upon the marriage, the trustees had been induced to accommodate the husband, which was a breach of the trust .^ Is is also held that a power to lend trust money on real or personal security does not authorize a trustee to accommodate a trader with a loan upon his bond.^ As against legatees and other volunteers, it has been held, that where there is a discretionary power for executors and trustees to invest on real and personal security, they will be justified, where, in the exercise of a sound discretion, they have lent the trust moneys to an apparently responsible person, at a reasonable interest. But the rule has been held to be different as to creditors.'' If the power, authorizing an investment of the ' Greenwood v. "Wakeford, 1 Beav., 576. ^ Langston v. Ollivant, Coop., 33. ^ Ut supra. * Forbes v. Ross, 2 Bro. C. C, 430; also 2 Cox, 113; Doyle v. Blake, 2 Sch. &Lef.,239. INVESTMENTS BY TRUSTEES, ETC 691 trust funds on personal securities, require the observance of any particular formalties, they must be strictly followed. Thus, where the consent, in writing, of the wife is a prerequisite to such an investment, her verbal consent will not be suffi- cient/ The consequences of not following the directions contained in the trust instrument for investing the trust funds, have sometimes been visited with great severity upon the trustees. Thus, where a trustee was directed to invest a legacy immediately in stock, and he retained it for a considerable time in his own hands, and until there was a rise in the stock, he was decreed to purchase as much stock as might have been bought with the trust fund at the time when it ought to have been invested.^ In the case of Shepherd v. Mouls,^ Sir James Wigram, Vice Chancellor, remarked : " In this case certain property was given to trustees, upon trust, to lay it out in the purchase of government or real securities. The trustees did not lay out the pro- perty in either, but kept the money in their hands ; and the only question I have to consider is, whether the trustees are to be charged with the amount of money and interest, or whether the parties inte- ' Cocker v. Qiiajie, 1 R. &: M., 535; see Kellaway v. Johnson, 5 Beav., 319. ^ Byrchall v. Bradford, 6 Mad., 235; Watts v. Girdlestone, 6 Beav., 188; Clough V. Bond, 3 M. & Cr., 496; Phillipson v. Gatly, 7 Hare, 516; Bank of Va. V. Craig, 6 Leigh, 399; Robinson v. Robinson, 21 Law J. Ch., Ill; Smith V. Lampton and Wife, 8 Dana, 72; see also Jennings v. Davis, 5 Dana, 132. ' 4 Hare, 500. 692 INVESTMENTS BY TRUSTEES, ETC. rested in the fund have a right to charge them with the amount of stock which might have been pur- chased at the time when the money was in their hands for that purpose. Where the trustees are bound, by the terms of the trust, to invest the money in the funds, and, instead of doing so, retain the money in their hands, the cestuis que trust may elect to charge them, either with the amount of money, or with the amount of stock which they might have purchased." But the Vice Chancellor held that, where the trustees by the terms of the trust, had a discretion to invest it in various ways, but, instead of so doing, they retained the money in their own hands, they would be liable for the money and interest only.^ Where the direction in the trust instrument is that the trustee shall invest, on some "good and sufficient security," the security should be such as the court has been known to sanction as such :^ and although such direction gives to the trustee a dis- cretion in selecting the securities, yet he will not be authorized to select any which the rules of court do not sanction: neither, where the trust is to ' See the remarks of V. C. Wigram in the case of Shepherd v. Mouls, 4 Hare, 500, referring to Marsh v. Hunter, 6 Mad., 295, and also Hockley v. Bantock, 1 Russ., 141, and Watts r. Girdlestone, 6 Beav., 188; see also Rees V. Williams, 1 DeG- & Sm., 314, and Robinson v. Robinson, 9 Eng. L. and Eq., 69; but see Ames v. Parkinson, 7 Beav., 379, and Ouseley v. Anstruther, 10 Beav., 453; Barney v. Saunders, 16 How. U. S., 535; Light's Appeal, 24 Penn. St. Rep., 180; Kenaw u. Carter, 8 Geo., 417; Greening v. Fox, 12 B. Monr., 187; Bently v. Shreve, 2 Mad. Ch., 215; Pettus V. Clawson, 4 Rich Eq., 92. ' Booth V. Booth, 1 Beav., 125; Trafford v. Boehm, 3 Atk., 440; Ryder p. Beekerton, 3 Sw., 80, (n.); Wilkes v. Steward, Coop., 6. INVESTMENTS BY TRUSTEES, ETC. 593 invest at the trustee's discretion, will he be author- ized to loan on personal security/ Where the case is one of evident corruption, or where there is crassa negligentia, on the part of the t ustee, the court will impose the highest rate of interest allowable ; and sometimes compound inte- rest has been charged. Thus, in the case of Jones V. Foxhall,^ the Master of the Rolls remarked, *' Generally it may be stated that if an executor has retained balances in his hands which he ought to have invested, the court will charge him with sim- ple interest at four per cent, on these balances. If, in addition to this, he has committed a direct breach of trust, or if the fund has been taken by him from a proper state of investment, in which it was pro- ducing five per cent., he will be charged with inte- rest at the rate of five per cent, per annum. If in addition to this, he has employed the money so ^ Ut supra, and see Pocock v. Reddington, 5 Vcs.. 794, and Wormley v. Worniley, 8 Wheat., 421. ^ Jones V. Foxhall, 15 Beav., 388; Rolauson v. Robinson, 21 Law J. Ch.. Ill; Knott V. Cotlee, 16 Jnr.. 752; Williams v. Powell, 16 Jur.,393; Jones V. Morrall. 2 Sim., (N. S.,) 241: at fonr per cent., see Lincoln v. Allen, 4 Bi-o. P. C.,553; Hicks v. Hicks, 3 A^k., 274; Littlctales f. Gascoigne, 3 Bro. C. C, 73; Younge i;. Combe, 4 Ves., 101 ; Longmore u. Broome, 7 Yes., 124; Roche v. Hart, 11 Ves., 58; Mousley v. Carr, 4 Beav., 49: at five per cent.. Piety v. Stace, 4 Yes., 620; Pocock v. Reddington, 5 Yes., 794; Roche v. Hart, 11 Yes., 60; Bate v. Scales, 12 Yes., 402; Dornford v. Dornford, 12 Yes., 127; Ashburnham v. Thompson, 13 Yes. ,402; see Utica Ins. Co. V. Lynch, 11 Paige, 520; Yandcrheyden v. Yanderheyden, 2 Paige, 287; Garnis v. Gardner, 1 Edw. Ch., 128; Ackermann r.Emott, 4 Barb. S. C, 626; Wright v. Wright, 2 McCord's Ch., 185; Robbins v. Hayward, 1 Pick., 528; Diffenderfer v. Winder, 3 G. & J., 341; Swindall v. Swindall, 8 Ired. Eq., 286; Clemens v Caldwell, 7 B. Monr., 171; Greening v. Fox, 12 B. Monr., 190; Kenan v. Hall, 8 Geo., 417; Barney r. Saunders, 16 How. U. S.,542. 38 594 INVESTMENTS BY TRUSTEES, ETC. obtained by him, in trade or speculation for his own benefit and advantage, he will be charged either with the profits actually obtained by him, from the use of the money, or with interest at five per cent, per annum, and also with yearly rests, that is, with compound interest." There can be no question that the court will charge the trustee with compound interest Avhere the direction in the instrument requires him to accumulate the fund in that w^ay.^ In the case of Barney v. Saunders,^ Mr. Justice Grier remarked: " On the subject of compounding interest on trus- tees, there is not, and indeed could not well be, any uniform rule which could justly apply to all cases. When a trust to invest has been grossly and wil- fully neglected, where the funds have been used by the trustees in their own business, or profits made of which they give no account, interest is com- pounded as a punishment, or as a measure of dam- ages for undisclosed profits, and in place of them. For mere neglect to invest, simple interest only is given. Six months rests have been made only where the amounts received were large, and such as could, at all times, be easily invested.'^ Mr. Kent^ * See Byrne v. Norcote, 13 Beav., 336; Raphael v. Bochm, 11 Ves., 92, and 13 Ves., 407, 590; Barney v. Saunders, 16 How. U. S., 535; Swind:ill V. Swindall, 8 Ired. Eq., 1285; Jones v. Foxhall, 13 Eng. L. and Eq., 140. ° Barney v. Saunders, 16 How. U. S., 542. " 2 Kent's Com., 231,^and cites Green v. Winter, 1 Jolin. Cli. Rep., 26; Dunscomb v. Dunscomb, 1 Johns. Ch.,508; SchiefFelin v. Stewart,! Johns. Ch., 620; Holridge v. Gillespie, 2 Johns. Ch. Rep., 30; Davoue v. Fanning, 2 Johns. Ch. Rep., 252; Smith v. Smith, 4 Johns. Ch. Rep., 281; Evertson «. Tappan. 5 Johns. Ch. Rep.. 497; Clarkson v. De Peystcr. Hop. Rep., 424; Roggers v. Roggers, ib., 515; see also Kyle v. Barnett, 17 Alab., 306; INVESTMENTS BY TRUSTEES, ETC 595 remarks upon this subject thus: " If the guardian puts the ward's money in trade, the ward will be equally entitled to elect to take the profits of the trade, or the principal with compound interest to meet those profits when the guardian will not dis- close them. So if he neglects to put the ward's money at interest, but negligently, and for an unrea- sonahle time, suffers it to lie idle, or mingles it with his own, the court will charge him with simple interest, and, in case of gross delinquency, with compound interest. These principles are under- stood to be well established in the English Equity system, and they apply to trustees of every kind : and the principal authorities upon which they rest were collected and reviewed in the Chancery deci- sions in New York, to which it will be sufficient to refer, as they have recognized the same doctrine."' This doctrine of charging guardians, executors, and trustees, in cases of gross delinquency, with compound interest, has been deemed just and rea- sonable in those cases in which it has been applied, although in some instances it has been condemned.' In Raphael v. Boehm^' the executor was directed, from time to time, to convert the interest into prin- Kerr v Laird, 27 Miss., 544; Light's Appeal, 24 Pcnn. St. Rep., 180; Bile's Appeal, ib., 335; Worrell's Appeal, 23 Penn. St. Rep., 44; see also Kerr s Aclra'r V. Sneed, 11 Bost. Law Rep., 217. * See preceding note. » See Kerr's Adm'r v. Sneed, (in the C Court of Va.,) 11 Bost. Law Rep. 217, (Sept., 1848); English t,. Henry, 2 Rawle's R., 309; Case of Peter McCall, 1 Ashm. Rep., 357; Dieterich v. Heft, 5 Barr R., 87; Tebbs V. Carpenter, 1 Madd. Ch. Rep., 290. ' 11 Ves., 92, and 13 Ves., 407, 590; see also ex parte Baker, 18 Vcs., 246. 596 INVESTMENTS BY TRUSTEES, ETC. cipal, and he disregarded the direction to accumu- late. In SchiefFelin v. Stewart,^ the administrator employed the trust moneys in trade for his own benefit, and refused to give an account of the pro- fits. In the case of Tebbs v. Carpenter,- the cor- rectness of the rule, to charge compound interest, was questioned, although the Vice Chancellor admit- ted that a distinction ought to be taken between negligence and misfeasance or corruption. In the case of Wright V. Wright,'^ it was declared that the gen- eral rule in South Carolina was adverse to allowing rest and compound interest against trustees. But the court remarked, that some cases would require it, although it might be difficult to draw Avith pre- cision a line of distinction between those cases in which the rule should and should not apply. This doctrine has also been sanctioned in the Court of Appeals in Maryland,'* in Kentucky,^ and in the Supreme Courts of North Carolina,'' Massa- chusetts,^ and Pennsylvania.^ It is, also, held in Alabama,^ " that compound interest is well charged against a trustee who has grossly and wilfully neglected his trust, used the trust money in his own business, or fradulently omitted to give account of ' 1 Johns. Ch. Rep., 620. * 1 Madd. Ch. Rep., 290. » 2 McCord's Ch. Rep., 18-5. " Ringgold V. Ringgold, 1 H. & G., 11; Deffcndeiffer v. Winder, 3 G. St J., 311. * Hughs V. Smith, 2 Dana Rep., 2.53, and Karr v. Karr, 6 Dana, 3. " Hodge V. Hawkins, 1 Dev. & Batt. Eq., 566. ' Fay V. Howe, 1 Pick. Rep., 527, and Boyntoa v. Dyer, 18 Pick. Rep., 1. ' Harland's Accounts. 5 Rawle's Rep., 329. ' Bryant v. Craige, 12 Alab., Zb\. INVESTMENTS BY TRUSTEES, ETC. 597 profits." In New Jersey it is provided by statute, that guardians who omit to put the ward's money at interest by reason of fault or negligence, are chargeable with ten per cent interest.^ It is the duty of the trustees to see to it that the investments are properly made ; and it is no excuse that they handed over the funds to their solicitor for reinvestment, and he misapplied them,^ or that they paid it over to their banker for the purpose of being invested.^ A trustee is entitled to a reasonable time to make his investments ; but what will be deemed a reason- able time, must depend upon circumstances. In the case of Dunscomb v. Dunscomb," the trustees held the funds in their hands a number of years upon the plea that they did not know to whom to pay them. The Chancellor remarked, that this was not a valid excuse ; as, in case they had any real doubt on the subject, they could have applied to the court for instruction, or brought the money into court. If, as the court had liberty to suppose, the moneys had been mingled with their own, it had answered the purpose of credit ; and the rule was settled, that executors and all other trustees are chargeable with interest if they have made use of the money them- selves, or have been negligent in not paying it over or investing it. As to the time from which interest * N. J. Rev. Laws, 779, soc. 11. " Rowland v. Witlierdon, 3 Mac. & G., 568. ^ Challan v. Sheppam, 4 Hare, 555; Byrne v. Norcolto, 13 Beav., 336- Fletcher v. Walker, 3 Mad., 73; Munch v. Cockerell, 9 Sim., 339 351. * Dunscomb v. Dunscomb, 1 Johns. Ch. Rep., 509. 698 INVESTMENTS BY TRUSTEES, ETC. was to be computed on moneys permitted to be idle, there was no absolute rule. It would be laying too heavy a hand upon executors to charge them with interest from the time the money was received. In some cases, they were allowed a year to look out for some due appropriation of the money, in other cases such time would be unreasonable. In this case, the executors have shown no pains or effort to discharge themselves of the money. In a like case, in the civil law,^ six months was the time allowed, and for that catise, the court held six months to be a reasonable time. So in the case of ^Yorrel^s Appeal,^ the court remarked that, in several recent cases, they had held that six months, in ordinary cases, was a reasonable time and should be allowed for making investments. In the case of Ringgold V. Ringgold,"^ in the Court of Appeals in Maryland, it was held, that trustees, who had invested, or who had made an effort to invest trust funds, would be allowed a rest of six months without interest as beins; a reasonable time within which to invest. But, if they manifested no such disposition to make such an application, no such rest would be allowed. What will be deemed a reasonable time must depend upon the peculiar circumstances of the case. Some- times three months has been held sufficient,'* and, again, a year has been given.^ ' Domat, B. 2, tit. Tutors, ch. 3. sec. 23; Voet, Liber 26, tit. 7, sec. 9. "" 23 Penn. St. Rep., 50. ' Ringgold V. Ringgold, 1 Harris & Gill., 11. * Barney v. Saunders, 16 How. U. S., 544. ' Cogswell V. Cogswell, 2 Edw. Ch., 231, INVESTMENTS BY TRUSTEES, ETC. 599 AYhile trustees are held to great strictness in the management of the trust funds, the court will deal with them leniently when it appears they have acted in good faith. If the neglect to make the proper investment is not the result of improper motives on the part of the trustee, the court will be disposed to excuse the apparent breach of trust, unless the negligence is very gross. Where a trus- tee retained a sum of money in his hands, having reasonable grounds for supposing he had a right to do so, although the court decided against his right to retain the money, yet he was not charged with interest because he acted in good faith.' So, also^ where the loss of interest has been occasioned^ through the ignorance of the trustee, and where? there was no improper motive.^ So, also, where- the amount of the balance on hand is small, the- trustee has sometimes been excused for not jDromptly investing.^ But no general rule as to the amount of balances, which a trustee will be permitted to* keep unproductive, can be established; where any payments are to be made, or liabilities to be pro- vided for, the trustee will be justified in retaining; a sufficient fund to answer those purposes.* In discharging the duties of the office of trustee,. ' Bniere v. Pemberton, 12 Ves., 386; Boddam v. Ryley, 4 Bro. P. C. 501; Hooker v. Goodwin, 1 Sw., 485; Parrott v. Treby, Prec. Cli., 2.S4. ' Massey v. Banner, 4 Madd., 419; also Bruere v. Femberton, 12 Ves., 386. ^ Bone V. Cooke, 13 Price, 343; S. C, 1 McClel., 168. * See Hill on Trustees, 375; see also Barney v. Saunders, 16 How. U. S., 544; but see also Johnston v. Newton, 22 Law Jour. Ch.. 1039; Moyle v. Moyle, 2 R. & M., 715; Addams v Caxton, 6 Ves., 226. coo INVESTMENTS BY TRUSTEES, ETC. it not unfrequently happens that deposits are to be made for the purpose of temporary convenience. Sums of money must be kept on hand for the pay- ment of taxes, rents, dividends, or other occasional or periodical payments. Any occasion requiring the temporary possession of funds in the transaction of business, such as a temporary deposit pending a negotiation for the change of the trustee, or where it is deposited with a banker of good credit for remittance to the party entitled to it ; ^ or where, in the performance of the trust, the trustees have contracted for the purchase of land, and have sold out stock and deposited the proceeds at a banker's,^ will excuse the trustee, where he has acted in good faith, and with a reasonable degree of prudence ; and he will not be liable in such cases, even though the party to whom the funds were committed should fail, and the funds be lost.^ But, if the trustee would avoid liability under such circumstances, the deposit should continue for no longer a time than is absolutely necessary ; and the security of the deposit should be equal to that which reasonable prudence or proper caution would have procured.* It has already been remarked that it is the duty of the trustee to make the trust funds both safe and » Adams v. Caxton, 6 Vcs., 226. « Freme v. AVoods, 1 Tanil., 172; Matthews v. Brisc, 6 Beav., 239. ^ Knight V. Lord Plymouth, 3 Atk., 480; Jones v. Lewis, 2 Ves., 240; Routh V. Howell, 3 Ves., 564; Johnston v. Newton, 17 Jur., 826; Freme v. Woods, 1 Taml., 172; Matthews v. Brise, 6 Beav., 239. * Matthews v. Brise, 6 Beav., 239; Challan r. Sheppani, 4 Hare, 555; Drever v. Mawdesley, 13 Jur., 330; Aston's Estate, 5 Whart., 228; Bate v. Scales, 12 Ves., 402. INVESTMENTS BY TRUSTEES, ETC. 601 productive. Althougli there should be no directions in the trust instrument to make an investment of the funds, it is equally the duty of the trustee to do so, and for a neglect of such duty he would be liable. In the absence of all such directions the responsibility of investing in a proper manner is thrown upon the trustee. In England, trustees can always invest in the three per cents, with perfect safety to themselves, as the court invariably directs all funds under its control to be invested there.^ Every other fund than the three per cents, would be deemed unauthorized by the court ; and the trus- tee would be held liable for all fluctuations or losses where he had invested in such unauthorized fund.^ Thus, he may not invest in the stock of any private company, as South Sea stock, bank stock, &c.; ^ and where trustees were authorized to invest in " three per cent, consols, or three per cent, reduced, or any government securities," the court refused to allow an investment on Exchequer bill^ as not within the power.'* So, where a testator directed all his property, except ready money and moneys in the funds, to be converted, and the proceeds to be invested in three per cent, consols, or other govern- » See Trafford v. Boehm, 3 Atk., 440; Holland v. Hughes, 16 Ves., 114; Howe V. Earl of Dartmouth, 7 Ves., 150; ex parte Champion, 3 Bro. C. C, 434, cited in Franklin v. Frith; Jackson v. Jackson, 1 Atk., 513; Clough V. Bond, 3 M. & Cr., 496. * Uancom v. Allen, 2 Dick, 498; Howe v. Earl of Dartmouth, 7 Ves., 150; Clough V. Bond, 3 M. & Cr., 496. ' Hynes v. Redington. 1 J. & L., 589; Trafford v. Boehm, 3 Atk., 440; Mills V. Mills, 7 Sim., 501; Emelie v. Emelie, 7 Bro. P. C, 259. ^ Ex parte Cliaplin, 3 Z. & C, 397; but see ex parte Southeastern Rail- way Co., 9 Jur., 650. 602 INVESTMENTS BY TRUSTEES, ETC ment securities in England, it was held that Greek bonds, though guarantied by England, were not comprehended in the word ''funds,'' and that they ought to be converted, though the court disavowed any intention of saying that bonds of that descrip- tion might not, in other cases, be deemed " govern- ment securities." ^ In the United Stoics there is no uniform rule upon the subject, unless, perhaps, such as may be deduced from this principle. Where the trust instrument gives no particular direction as to the nature of the securities, it would be expected that the trustee would invest either in real securities or such other stock as the court is known to have adopted, for it is a general rule, where the court has adopted a particular fund, and has thus author- ized and sanctioned such fund as safe for investments, the trustee will be justified in adopting the same.*^ In the case of Ackerman v. Emott,^ it was stated to be the rule m New York, that where a general power is conferred upon persons acting in a repre- sentative capacity, to make investments, they are confined, in its exercise, to real and government securities ; and that, under such rule, the court would sanction an investment in that State, by executors > Burnie v. Getting, 2 Coll., 324. ^ Hancom r. Allen, 2 Dick Rep., 498; see also Peat v. Crane, 2 Dick Rep., 498, note; Ackerman v. Emott, 4 Barb., 634; see also Kirby v. King, 3 Jolms. Ch. Rep., 552; 2 Kent's Com ,416, note, 5th ed.; Smith v. Smith, 4 Johns. Ch. Rep., 281; see also remarks of Chancellor Walworth in Eck- ford V. De Kay, 8 Paige, 89. ^ Ackerman v. Emott, 4 Barb. S. C, 626; see also Worrell's Appeal, 23 Penn, St. Rep., 44; also 9 Barr, 508. INVESTMENTS BY TRUSTEES, ETC. 6o: and trustees, acting under a general power, in loans on real security, or in the public stocks of the State, or of the United States, or in loans to the New York Life Insurance and Trust company. It was also held in the same case, that where executors or trustees, exercising a general power to make invest- ments, go beyond the limits prescribed by law in selecting a mode of investment, neither good faith, nor care, nor diligence will protect them in the event of an actual loss. That, in such cases, they assume the risk and are responsible accordingly.^ The same general rule has also been adopted in Pennsylvania. In the case of Worrel's Appeal,^ the guardian, in addition to investing in stock of the Delaware and Hudson Canal company, and in stock of certain banks in Pittsburgh, had also pur- chased stock in the Schuylkill Navigation company. The first purchase of the latter stock was consid- erably above par. He also purchased some of the same stock on his own account, and the widow also purchased some. It was also alleged that the Board of Brokers invested in the stock of the Schuylkill Navigation company about the same time, in order to form a fund for the relief of the indigent widows and children of deceased brokers, etc. But, the court held that an investment by a guardian or other trustee, unless authorized by the deed of trust or by law, in the stock of an in- * See preceding note. " Worrell's Appeal, 23 Penn. St. Rep., 44; Hemphiirs Appeal, 18 Penn^ St. Rep., 303; Nyce's Estate. 5 W. & S., 254; Morris v. Wallace, 3 Barr, H9. 604 INVESTMENTS BY TRUSTEES, ETC. corporated company, is at his own risk, even though persons generally considered men of pru- dence have made similar investments. In giving the decision in this case, Knox, J., remarked: "One who is entitled to the appellation of a prudent man may make an investment understood to be of a speculative or experimental character. He calcu- lates the chances and takes the risk. If fortunate, he pockets the profits ; if not, he must stand the loss. But, with trust funds no such hazard can be permitted. Investments which are entirely safe, and which yield a fair return, in this country can be readily obtained, and a strict compliance in this re- spect should be required from those entrusted with the estate of minors and others similarly situated."^ In Pennsylvania it would seem that where trus- tees are clothed with general powers to make invest- ments, the court would not authorize an investment on real security in another State ; although they would not change such an investment if it had been made according to the directions of the testator.^ The rule, as to investments, in Massachusetts and some of the other States, is less stringent.. In the case of Harvard College et al. v. Amory,^ John McLean by his will gave and bequeathed to Jona- than Amory and Francis Amory, &c., jointly, the sum of $50,000, in trust, nevertheless, to loan the ' See preceding note. * See Rush's Appeal, 12 Penn. St. Rep., 375; see also Bnrrill v. Shell, 2 Barb. S. C, 457. ^ Harvard College v. Amory, 9 Pick., 4-17; see also Lovell v. Minott, 20 Pick., 116; see also Gray j;. Lynch, 8 Gill., 403; Smyth v. Burnes' Adm'r, 25 Miss. 422. INVESTMENTS BY TRUSTEES, ETC. 605 same upon ample and sufficient security, or to invest the same in safe and productive stock either in the public funds, bank shares or other stock, according to their best judgment and discretion, hereby enjoin- ing on them particular care and attention in the choice of funds, and in the punctual collection of the dividends, interest and profits thereof, and au- thorizing them to sell out, change and reinvest the said loans and stocks from time to time, as the safety and interest of the said trust fund may in their judgment require. The trustees invested in the Fire and Marine Insurance company, the Boston Manufacturing company, and the Merrimack Manu- facturing company stock, the principal part of the fund. At a Probate Court, in October, 1828, Fran- cis Amory, the surviving trustee, presented his account as trustee, for allowance, and tendered his resignation of the trust. The amount was allowed by the probate judge and the corporations of Har- vard College, and the Massachusetts General Hospi- tal, as residuary legatees, appealed and excepted to the account ; and among other reasons for such ex- cepting, they stated, 2. " Because they (the trus- tees) did not invest in safe and productive stock, either in the public funds, bank shares, or other stock; but on the contrary, invested the greater part thereof in trading companies, whereby the principal sum was exposed and still continues to be exposed to great loss." The reply of the trustee to this part of the exceptions, among other things stated, "that the investment actually made was by taking parts, in due proportion, at the market value, 606 INVESTMENTS BY TRUSTEES, ETC. of that property wherein the testator appeared to have the greatest confidence/ and that all the pro- perty selected is known in the acts of incorporation as well as in common parlance, by the name of stock," etc. To which the appellants replied, among other things, " that the fact that a large amount of the testator's property consisted of such stocks, did not authorize the trustees thus to invest, etc., as the testator was at liberty to speculate ; but the trustees were required to loan on sufficient security, or in- vest in stock which would be safe as well as pro- ductive." The court, in giving their opinion, remarked, " It is argued by the appellants, that the trustees have not loaned the money on good secu- rity. The answer is found in the authority which the testator gave them. They were to loan, or to invest the fund in stocks. They preferred the lat- ter. But it is argued that they did not invest in the public funds, hank shares, or other stock, within the true intent and meaning of the authority, but in trading companies, and so exposed the capital to great loss. And we are referred to Trafford v. Boehm- to prove the position that such an invest- ment will not have the support of a Court of Chan- cery. The Chancellor seems to suppose that funds or other good securities must be such as have the engagement of the government to pay off their capital. Bank stock and South Sea stock which were in the management of directors, &c., were not * See remarks of Justice Putnam in this case, also Thompson v. Brown, 4 J. C. R., 628, and Roth v. Howell, 3 Ves., 565. " Trafford v. Boehm, 3 Atk., 444. INVESTMENTS BY TRUSTEES; ETC. 607 considered by that court as good security. But no such rule has ever been recognized here. In point of flxct, there has been as great fluctuation in the value of stocks which was secured by the promise and faith ojf the government, as of the stock of banks. And, beside, the testator himself considers that hank shares might be a safe object of investment, safe and productive stock. And yet bank shares may be subject to losses which may sweep away their whole value." In conclusion the court re- marked that " it would not do to reject those stocks as unsafe which were in the management of direc- tors whose well or ill directed measures may involve a total loss. Do what you will the capital is at hazard. Investments on mortgage of real estate are not always safe. Its value fluctuates more, per- haps, than the capital of insurance stock ; and title may fail, etc. All that can be required of a trustee to invest is, that he shall conduct himself faithfully and exercise a sound discretion. He is to observe how men of prudence, discretion and intelligence manage their own affairs, not in regard to specula- tion, but in regard to the permanent disposition of their funds, considering the probable income, as well as the probable safety of the capital invested." In the case of Lovell v. Minot,^ the court held that a loan by a guardian, upon the promissory note of the borrower, payable in one year, with interest, secured by a pledge of shares in a manufacturing corporation, the amount of the loan being about ' Lovell V. Minott, 20 Pick., 116. 008 INVESTMENTS BY TRUSTEES, ETC. three-quarters of the par value of the shares, and less than three-quarters their market value, was an investment made in the exercise of such a sound discretion on the part of the guardian, that although the borrower failed before the note became due, and the shares fell in value below the amount of the note, the guardian was not to be held responsible for the loss. And further, " the guardian having sold the shares, and taken the purchaser's note for the price, with two endorsers, and the notes of a third person, secured by mortgage on land, he was held to have exercised a sound discretion, and not to be respon- sible for a loss occasioned by the failure of all the parties to the notes, and a fall in the value of the mortgaged premises." In giving the decision in this case, Shaw, C. J., expressly affirmed the doc- trine in the case of Harvard College v. Amory, and said that we had no public securities in this country which would answer the requirements of an Eng- lish Court of Equity,' In Maryland there is no favored stock in which it is always deemed safe to make investments. Therefore, where a testator purchased certain stocks, and by his will, gave them to a trustee for the use and benefit of his daughter, and her children, with- out delegating to any one a power to change the investment, it was held, that it was not proper for the trustee, without some express authority from some competent tribunal, to dispose of those stocks and invest the money in other securities, and if he ' Lovell V. Minott, 20 Pick., 119. INVESTMENTS BY TRUSTEES, ETC 609 did so, upon proper application, he would be decreed to replace them ; and if replaced at a less sum, he would be compelled to invest the surplus in the same stocks and to the same use. As there is no favorite stock, as in England, for the investment of trust moneys, there is always some difficulty, where the parties do not agree, in making a proper selec- tion; therefore, there is more reluctance on the part of the court, than in England, in changing an investment made by the author of the trust ; and they will not do it, unless impelled to do so by con- siderations of the most pressing character.^ In New Jersey, in the case of Gray v. Fox,'^ the court remarked that " in this country there were few opportunities for investing in the public stocks ; the stocks of private companies are deemed unsafe, and investments in that species of stock would scarcely be encouraged by a Court in Equity; and there is no other but landed security that would come within the rule; and the court would advise it to be taken in all cases where public stock cannot be had." From the remarks of the court it is to be inferred that no other security than the public stock or real estate would be deemed ''due security,'^ in New Jersey.^ They have also provided by statute,^ that ' Murray v. Feinour, 2 Md. Ch. Dec, 418; see also Evans v. Inglehart, 6 Gill. & Johns., 192. * Gray v. Fox, Sax. Rep., 259. ^ See the remarks of the Chancellor in the case of Gray v. Fox, Saxton's Ch. Rep., 264, and the English authorities cited by him, where he fully endorses the English rule. * Rev. Code, 1847, p. 209, sec. 14; see also Elmer's Dig. of N. J. Laws, by Nixon, 1855, p. 553, sec. 14. 39 610 INVESTMENTS BY TRUSTEES, ETC. executors, administrators, trustees and guardians, may, by leave and direction of the Orphan's Court, put out to interest all moneys in their hands which they are or may be lawfully required to retain, whether the same belong to minors, legatees or other person or persons, whomsoever, upon such security and for such lengths of time as the court shall allow of; and, if such security so taken, bona fide, and without fraud, shall happen to prove insuf- ficient, it shall be the loss of the minors or other person entitled thereto ; and it shall be the duty of executors, administrators, trustees, and guardians, in cases where the estates of minors or other persons in their hands may be materially benefited thereby, to make application to the Orphan's Court for such leave and direction, and in case they shall neglect to do so, they shall be accountable for the interest that might have been made thereby. But, if no persons who may be willing to take said money at interest, giving security, can be found by the said executors, administrators, trustees, or guar- dians, nor by any other friend or friends of said minors or other persons, then the said executors, &c., shall be accountable for the principal money only until the same can be put out at interest, &c.; but, in case they make use of such money them- selves, they shall be required to pay interest on such principal.^ In many of the States there are provisions by statute authorizing investments in certain stocks. ' See preceding note. INVESTMEA^TS BY TRUSTEES, ETC. 611 In Pennsylvania, the stock or public debt of the United States, the public debt of the Common- wealth, or of the city of Philadelphia, stock in the incorporated townships and districts of Philadelphia county, of Pittsburgh and Alleghany, and the stock of the water works of Kensington, Philadelphia county.^ In Maine, it is also provided by statute,^ that " any probate judge having jurisdiction of the trust, and the Supreme Judicial Oourt in any county, on the aj^plication of the trustee, or of any person interested in the trust estate, after notice to all others interested, may authorize or require the trustee to sell any real or personal estate held by him in trust and invest the proceeds thereof, and also any other trust moneys in his hands, in real estate, or in any other manner most for the interest of all concerned therein ; and give such further direction, as the case requires, for managing, invest- ing and disposing of the trust fund according to the provisions of the will."^ But, in such disposition, the court will not interfere with the legal and valid directions of the testator, nor will they exercise any discretionary powers committed personally to the trustee.^ In Michigan, the Judges of Probate in their respective counties, and the Suj)reme and ^ Act 29 March, 1832, Dimlop, 471. sec. 14; see also acts 13 April, 1838, 15 April, 1850, 8 April, 1851; see the remarks of the Court on this subject, Twaddell's Appeal, 5 Barr, 15; also 9 Barr, 508; Barton's Estate, 1 Pars. Eq., 24. "^ Rev. Stat., 1857, ch. 68, sec 9, p. 436. For similar provisions in New Hampshire and Vermont, see N. H. Rev. Stat. 1853, p. 427, sec. 9, and Verm. R. S. 1839, tit. 12, ch. 55. ' Littlefield v. Cole, 33 Maine Rep., 552. 612 INVESTMENTS BY TRUSTEES, ETC. Circuit Courts, when setting in such county, may, on application of the trustee, or other person interested in the trust estate, authorize or require the trustee to sell any stock in the public funds, or in any bank, insurance company, or other copora- tion, or any other personal estate or effects held in trust, and invest the proceeds thereof, and also any other trust moneys in his hands, in real estate, or in any other manner that shall be most for the interest of all concerned therein/ The statute of Missouri provides," that guardians and curators shall put the money of minors entrusted to their hands to interest upon mortgage or other sufficient security, for all sums under five hundred dollars, to be approved by the court ; or they may, by leave of the court, and with the assent of their securities, retain the money in their own hands, paying interest therefor. And when no one can be found to take the money upon interest, and the guardian or curator do not choose to take it upon interest themselves, they are not to be charged with interest until the same can be j)ut out at inte- rest. The interest in such cases is to be paid annually, and when not paid at the end of the year, it is to be added to the principal, and bear interest as such, without it being necessary to renew the mortgage or other security. ' Rev. Stat. Mich., 1838, p. 301, sec 11. * Rev. Stat. Missouri, p. 551, sec 23. For special provisions in Virginia, Bee Rev. Code, 1849, pp. 552, 553, sec 24, 25; and see title " Fiduciaries Generally,"' tit. 39, p. 546, for general provisions on the subject of the accountability of trustees. INVESTMENTS BY TRUSTEES, ETC. 613 An examination of the leading American author- ities would seem to justify the conclusion, that where the trust instrument has left the manner of investing the trust funds to the discretion of the trustee, and where there is no fund sanctioned by the court in which to invest, the safer way will be for the trustee to invest on unquestionable real security. Such security has been approved by the courts in nearly or quite all of the States, and less than this has been questioned in very many of them.* A question has sometimes arisen as to what consti- tutes real security. In Pennsylvania an investment in the loans of the Lehigh Navigation company, own- ing coal lands and a canal to a much greater value than its debts, the interest on the loan being a pre- ferred claim on the income, was held to be substan- tially on real estate.^ As a general rule trustees ^ cannot invest by purchasing real estate with the- trust moneys; because the cestui que trust, in such*- cases, is at liberty to elect whether he will take the real estate, or the money and interest. This right of the cestui que trust to elect, has been considered in a former chapter.'^ But in Massachusetts, under ^ But see H. College v. Amory, 9 Pick., 447; Lovell v. Minott, 20 Pick., 116; Gray v. Lynch, 8 Gill., 403; Smyth v. Burns' Adm'r, 25 Miss., 422; Kimball v. Reading, 11 Foster, (N. H.,) 352. ^ Twaddle's Appeal, 5 Barr, 15; bui see Worrell's Appeal, 9 Barr, 508, and 23 Penn. St. Rep., 44; see also Rush's Estate. 12 Penn. St. Rep., 375; Hemphill's Appeal, 18 Penn. St. Rep., 803. ^ Pages 145, 481; see also Ousely v. Anstruther, 10 Beav.,456; Bonsall's Appeal, 1 Rawle, 273; Billington's Appeal, 3 Rawle,55; Kaufman tj. Craw- ford, 9 W. & S., 31; Rogers' Appeal, 11 Penn. St. Rep., 36; Wiswald v. Stewart, 32 Alab., 433; Bellamy v. Bellamy's Adm'r. 6 Flor., 62; Pugh v. Pugh, 9 Ired., 132. G14 INVESTMENTS BY TRUSTEES, ETC. a direction to invest in stocks or productive real estate^ it has been held, that it authorized the purchase of land or dwelling houses, or the purchase of the widow's right of dower, upon such terms as to make the estate, when disencumbered, productive in pro- portion to its cost.^ So, likewise, it has been held in Pennsylvania, that in case of imminent necessity a guardian may buy in real estate," and also that an administrator might buy in a debtor's land under a judgment against him, where there w^as danger of losing the debt in the whole or in part, by his fail- ing to do so.^ Where the trust property is already invested on personal securities, or any other which the court could not sanction, were the trustees to invest in them, it often becomes a difficult question to deter- mine how far it is the duty of the trustee to call in such funds and invest them in approved securities. Where the trust instrument directs their immedi- ate conversion, there can be little doubt as to the duty of the trustee; or where, during the admin- istration of the trust, the court has so ordered it."* But where it is left to the discretion of the trustee, he must act in the utmost good faith, and not be guilty of gross negligence in making such conver- sion. In general it is well settled that it is the duty of trustees to call in any part of the trust fund ^ Pax-sons v. Winalow, 16 Mass., 368. " Bonsall's Appeal, 1 Rawle, 273. ' Billingtou's Appeal, 3 Rawle, 55; see also Oeslager v. Fisher, 2 Peun. St. Rep., 467. ■* Sowerby v. Clayton, 8 Jur., 597. INVESTMENTS BY TRUSTEES, ETC. 615 whicli they find standing out on mere personal secu- rity, even though there be no specific directions in the trust instrument requiring them to do so.^ It has been held, that an express power for the trustees to vary the securities will not authorize a change to be made without any apparent object or prospect of benefiting the trust estate ; and should the trustees dispose of existing securities without having in contemplation an immediate reinvestment, they will be responsible for any losses which might occur. ^ It is a general rule, where the investment has been made in pursuance of the directions of the testator, it cannot be changed except by the consent of all parties interested ; and where there are cestuis que trust not in esse the court will not direct the change to be made.^ But, in the case of Perroneau V. Perroneau,* where the testator died shortly after the close of the revolution, and before the consti- tutional government was established, and, having doubt as to the stability of the government, had directed his executors to invest in the funds in Eng- land, the court, on the restoration of confidence ■ Clough V. Bond, 3 M. 8t Cr., 496; Powell v. Evans, 5Ves.,839; CafFrey V. Darby. 6 Ves., 488; Tebbs v. Carpenter, 1 Mad., 297; AVillis' Appeal, 22 Penn. St. Rep., 330; Hemphill's Appeal, 18 Penn. St. Rep., 303. ^ See Brice v. Stokes, 11 Ves., 324; De Manneville v. Crompton, 1 V. & B., 359; Hanbury v. Kirkland, 3 Sim., 365; Watts r. Girdlestone, 6 Beav., 190. ' See Wood v. Wood, 5 Paige. 595; Deadrick v. Cantrell, 10 Yer^., 263; Contee v. Dawson, 2 Bland., 264; Burrill v. Shell. 2 Barb. S. C. 457; Trustees Transylvania University v. Clay, 2 B. Monr., 386. * Perroneau v. Perroneau, 1 Desau., 521. G16 LIABILITIES OF TRUSTEES IN under the constitution, ordered the funds to be in- vested in this country. But where cestuis que trust, who are sui juris, have consented to or acquiesced in an investment by a trustee, they cannot afterwards question its pro- priety, even though the investment should amount to a breach of trust/ And the interest of the cestui que trust, with whose concurrence the investment was made, is primarily liable to make good to the trust estate any loss which may be thus occasioned,^ and the court went so far as to hold, that the cestui que trust concurring in such investment, if he de- rived any actual benefit from the commission of the breach of trust, should recoup the trustee to the amount of any such benefit.^ Section III. LIABILITIES OF TRUSTEES IN RESPECT TO REMAINDERMEN. Where there is a limitation over of the trust estate, the trustee, in administering the trust, must consult the interest of those entitled in remainder, as well as those to whom the immediate beneficial enjoyment is given ; for it would be a breach of his duty to permit any advantage to be given to either ' Brice v. Stokes, 11 Ves., 324; Langford v. Gascoigne, 11 Ves., 333; Nail V. Punter, 5 Sim., 555; Wallcer v. Symonds, 3 Sw., 64; Lockhart v. Reily, 39 Eng. L. and Eq. Rep., 135. « Booth V. Booth, 1 Beav., 125; Fuller v. Knight, 6 Bcav., 205; Raby v. Ridelhalgh, 24 L. J. Ch., 528, and 19 Jur., 33G; Band v. Fardell, 19 Jur., 1214. ' Booth V. Booth, 1 Beav., 125; Raby v. Ridelhalgh, 24 L. J. Ch., 528; Band v. Fardell, 19 Jur., 1214. RESPECT TO REMAINDERMEN. 617 at the expense of the other/ In the absence of any express direction in the trust instrument, to the contrary, the trustee will be entitled to the posses- sion and management of the estate where the nature of his duties requires that he should have the con- trolling power.'- Thus, in the case of Tidd v. Lister,^ a testator had devised and 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. The debts, funeral expenses, and annuities were discharged by the personal estate, whereupon the daughter, a feme covert, filed a bill, praying to be let into possession upon secur- ing the amount of the premiums of the policies. But, Sir John Leach said : " It is perfectly plain, from the continuing nature of this trust, that the testator intended the actual possession of the trust ' Langston v. Ollivant, Coop., 33; Stuart v. Stuart, 3 Beav.,430; Pechel V. Fowler, 2 Anst., 550; Mortlock v. Buller, 10 Ves., 308, 309; Lord Malion V. Earl Stanhope, cited 2 Sug. Pow., 512; Cowgill v. Lord Oxmantown, 3 Y. &. C, 369; Watts v. Girdlestone. 6 Beav., 188; Marshall v. Sladdan, 4 De Gex 8t Sim-, 408; see also Moscley v. Marshall, 22 N. Y. Rep., 200. * Hill on Trustees, 884; Lewin on Trusts, &,c.,586; Young v. Miles' Ex'ors, 10 B. Monr., 290. ' Tidd V. Lister, 5 Mad., 429; Blake v. Bunbury, 1 Ves., Jr., 194, also 514; 4 Bro. C C, 21, 28; Young v. Miles' Ex'ors, 10 B. Monr., 290; Jen- kins V. Milford, 1 J. & W., 629; [but where a cestui que trust for life is let into possession, the court will require the necessary security: see Baylies V. Baylies, 1 Col., 537; Denton v. Denton, 7 Beav., 388; Pugh v. Vaughn, 12 Beav., 517;] see also Langston v. Ollivant, Coop., 33. C18 LIABILITIES OF TRUSTEES IN 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 direc- tion of the property in other hands, which is an obvious means of securing the provident manage- ment of that property for the advantage of those who are to take in succession, it should be a princi- ple in a Court of Equity to disappoint that inten- tion, 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 considered, in case of a female cestui que trust for life, as having a further view to her personal protection in the case of mar- riage. There may be cases where it may be plain from the expressions in the will, that the testator did not intend the property should remain under the personal management of the trustees. There may cases in which it may be plain from the nature of the property, that the testator could not mean to exclude the cestui que trust for life from the personal possession of the property ; and, there may be very special cases in which this court would deliver the possession of the property to the cestui que trust for life, although the testatofs intention appeared to he that it should remain with the trustees-,^ as, where the per- sonal occupation of the trust property was beneficial ' See Moseley v. Marshall, 22 N. T. Rep., 200. RESPECT TO REMAINDERMEN. 619 to the cestui que trust, there the court, by means to secure the due protection of the property for the benefit of those in remainder, could, in substance, be performing the trust according to the intention of the testator." ^ Where the tenant for life takes both the legal and equitable estate, the right of possession usually follows the title. But the tenant for life, in such case, is trustee for the remaindermen, and may be called to an account as such.^ It is the duty of the trustee to protect the estate of the remainderman against the acts of the equit- able tenant for life, by preventing him from doing any act which is an injury to the reversion. Thus, an equitable tenant for life mortgaged his life estate as security to his creditors ; and then cut down and sold the timber, by which the reversion was injured. It was held that, as against mortgages and incum- brances on the life estate, the remainderman had an equitable claim to have the injury to the inherit- ance made good, and, for that purpose, had a lien on the rents and profits in the hands of the trustee.^ Where the beneficial enjoyment of movable articles and personal estate, as plate, furniture, etc., > See note 3, p. 617. » Clark V. Saxton, 1 Hill's Eq., 69; Ilorry v. Glover, 2 Hill's Eq., 515; Sliibley v. Ely, 2 Halst. Ch., 181; Joyce v. Gunnells, 2 Rich. Eq., 259; see also Broom v. Curry's Adm'r, 19 Alab., 805; Wilson v. Edmonds, 4 Foster, 545. ^ Briggs V. Earl of Oxford, 19 Jurist, 817; Freeman i'. Cook, 6 Ired. Eq., 376; wTodman v. Good, 6 W. & S.,169; Whitfield r. Bennett, 2 P. Wms., 242; Duke of Leeds v. Lord Amherst, 14 Sim., 357; Morris v. Morris, 15 Sim., 510; Marker v. Marker, 9 Hare, 1; Davies v. Lee, 6 Ves., 780. G20 LIABILITIES OF TRUSTEES I^ is given for life, with a limitation over, the first taker of the articles specifically bequeathed, is not required, in the first instance, to do any more than give an inventory or schedule of the articles, signed by himself^ But, where there is cause to fear that the tenant for life will waste, secrete, or carry off the property, and not restore it at the termination of his estate therein, the party in remainder may apply to a Court of Equity for an order for security ; and, if need be, for an injunction against their removal.^ Where the gift for life is of things qua ipso usu consumuntur, as corn, and wine, etc., and is also specific, it is a gift of the absolute property ; and a limitation over, in such case, would be void."' But if the gift is residuary or general, the things must be sold, and the interest of their produce be paid to * Bill V. Kynaston, 2 Atk., 82; Leeke v. Bennett, 1 Atk., 471; Coven- hoven v. Shuler, 2 Paige, 122; De Peyster r. Clendinning, 8 Paige, 295; Spear r. Tinkham, 2 Barb. Ch., 211; Emmons v. Cairnes, 3 Barb., 213; Wescott V. Cady, 5 Johns. Ch., 334; Langworthy v. Chadwick.. 13 Conn., 42; Hudson v. Wadsworth, 8 Conn., 363; Nance v. Coxe, 16 Alab., 125; Henderson v. Vaiilx, 10 Yerg., 30; Cheshire v- Cheshire, 2 Ired. Eq., 569; Mortimer v. Moffatt, 4 Hen. & Munf , 503; Slanning v. Style, 3 P. Wms., 836; Williams' Ex'ors, 1259. » Covenhoven v. Shuler, 2 Paige, 122; Ramey v. Green, 18 Alab., 771; Lippencott v. Warder, 14 S. & R., 118; Kinnard v. Kinnard, 5 Watts, 108; see also Westcott v. Cady, 5 Johns. Ch. Rep., 334; Langworthy v. Chad- wick, 13 Conn., 42; Swan v. Ligan.l McCord's Ch.,227; Bill r. Kynaston, 2 Atk., 82; Braswell v. Morehead, 1 Busb. Eq., 26; Frazer's Adm'r r. Bevill, 11 Gratt., 9; Foley v. Bnrnell, 1 Bro. C. C, 279. ' Williams on Ex'ors, 1259; Tyson v. Blake, 22 N. Y. Rep.^ 558; see also McLean v. McDonald, 2 Barb. S. C.,537; McDonnald z). Walgrove, 1 Sand. Ch., 275; Wright v. Miller, 8 N. Y. Rep., 25, and authorities cited; Scott V. Perkins, 28 Maine Rep., 22; see also Shaw v. Huzzy, 41 Maine, 495. RESPECT TO REMAINDERMEN. 621 the legatee for life.' The rule is general, that where a testator makes a general gift of his estate, or of the residue generally to, or in trust for a person for life, with remainder over, so much of the property as consists of leaseholds, or terminable annuities, or other interest of a perishable nature, must be converted into funds, and invested in permanent securities for the benefit of the remainderman.' In respect to such gifts, it is the duty of the trustee to protect the interests of the remainder- man, and not permit the tenant for life to consume the property or appropriate the principle to his own use, and this he can do by application to the court. But if, regardless of the interests of the remainderman, the trustee permits the tenant for life to receive the whole income arising from the perishable securities, if the tenant is not able to refund, or fails to do so, the trustee himself will be answerable to the remainderman for what he has ' Randall v. Russell, 3 Meriv.. 194; Andrew i^. Andrew, 1 Coll., 690; see Porter v. Tournay, 3 Ves., 314; Clark ^. Clark, 8 Paige, 152; Cairns t-. Chaubert, 9 Paige, 160; Spear v. Tinkham, 2 Barb. Ch., 211; see also Wil- liamson V. Williamson 6 Paige, 298; Covenhoven v. Shuler, 2 Paige, 122; Emmons v. Cairns, 3 Barb., 243; Eichelburger v. Barnetz, 17 S. & R., 293; Woods V. Sullivan, 1 Swan, 507; Bradner v. Falkner, 2 Kern., 472; Booth V. Ammerman, 4 Brad., 132. - Hill on Trustees, 386; Howe v. Earl of Dartmouth, 7 Ves., lo< ; Fearns ,;■ Young 9 Ves., 552; Dimes v. Scott, 4 Russ., 200; Alcock v. Sloper, 2 M & K.,'701; Mills V. Mills, 7 Sim., 501 ; Pickering i^. Pickering. 2 Beav., 57- S. C. 4M. &Cr.,298; Litchfield v. Baker, 2 Beav., 481; Benn v. Di.Kon, lo'sim., 636; Cairns v. Chaubert, 9 Paige, 160; Clark v. Clark, 8 Paige, 152; see 2 Leading Cases in Equity, p. 263, et seq, [Howe v. E. of Dartaouth, and at p. 279 see Benn v. Dixon and authorities] ; Covenhoven V. Shuler. 2 Paige, 132; Eichelburger v. Barnetz, 17 S. & R.,293; Woot- tenr. Burch, 2 Md. Ch., 190. C22 LIABILITIES OF TRUSTEES IN lost thereby.^ The tenant for life, is bound in the first jDlace to recoup the remainderman, in such a sum as he had received over and above Avhat he would have received if the conversion had been duly made, and he had received only his interest.^ Vice Chancellor Parker stated the principles which govern a Court of Chancery on this subject, thus : " The personal estate of the testator may be considered as divided into three different classes : First, property which is found at the testator's death invested in such securities as the court can adopt, as money in the funds or on real securities. The tenant for life in entitled to the whole income of this. Secondly, property which can be con- verted into money without sacrificing anything by a forced sale. As to this the rule is clear. It must be converted, and the produce must be invested in securities which the court allows, and the tenant for life is entitled to the income of such investment. Thirdly, property which according to a reasonable administration is not capable of an immediate con- version and which cannot be sold immediately with- out involving a sacrifice of both principal and interest. In this case, the rule is to take the value of the testator's interest, and to give the tenant for life the income of that present value.^ * Howe V. Earl of Dartmouth, 7 Ves., 137; Dimes v. Scott, 4 Russ., 200; see also 2 Leading Cases in Equity, p. 203; Williamson v. Williamson, 6 Paige, 298. " Howe V. Earl of Dartmouth, 7 Ves., 137; Mills v. Mills, 7 Sim , 509; Randall v. Russell, 3 Meriv., 194, 195. ' Meyer v. Simonson, 21 Law J. Ch., 678; see also Moseley v. Marshall, 22 N. Y. Rep., 205; Howe v. Earl of Dartmouth, 7 Ves., 137; also Leading Cases in Equity, vol. ii., p. 262. RESPECT TO REMAINDERMEN. 623 As, in these cases, the trustee in settling his accounts, will be allowed for payments made to the tenant for life, such a sum only as the tenant was entitled to receive, it becomes important for the trustee to ascertain accurately the rights of the tenant for life, and his liability in such cases. Thus, w^here a testator had devised to his wife his dwel- ling house in fee, subject to any mortgage which might exist upon it at the time of his death, and it was subject to a mortgage at the date of the will, which remained unpaid at the testator's death. He also bequeathed to her his furniture, horses and car- riages, &c. ; and he likewise devised to her the pre- mises known as "The Mansion House," during her natural life, "and all and several the rents and pro- fits thereof" In the third clause of the will the testator directed as follows : " I will and direct that all the rest and residue of my personal estate of every kind not hereinbefore disposed of, be ap- plied to the payment of my debts and liabilities, excepting that which is secured by mortgage on my said dwelling house ; and that the remainder of my said debts, over and above what can be paid thereby, be and remain a charge on my said Mansion House property, to be paid therefrom after the life estate of my wife therein : and for that purpose I hereby empower my executors, hereinafter named, if prac- ticable, to defer the payment of any existing mort- gage or mortgages, on said Mansion House property during the lifetime of my said w^ife, or to make a loan or loans for the payment of the same or any part thereof, to be paid therefrom after the decease 624 LIABILITIES OF TRUSTEES IN of my said wife." The testator gave the residue of his estate, real and personal, to the respondents, Mrs. Marshall, E. B. Coe, and Mrs. Leslie; the first named a sister of his wife, and the other two his nephew and neice. The Mansion House property was the only real estate w^hich passed under the residuary clause. It yielded a net annual income of $4,000. At the time of making the will, and also at the time of the death of the testator, it was sub- ject to three mortgages, amounting to $12,000, for which the creditors held his bonds. The executor paid the interest on these mortgages during the life of the widow, and charged it to the account of the residuary estate ; and, after the death of the widow, filed his accounts before the surrogate for a settle- ment. It appeared by his accounts, and which, with the exception of these charges for interest, were allowed, that the personal property sufficed to pay the debts, except the mortgages, and to keep down the interest on those upon the Mansion House during the lifetime of the devisee for life ; and that there was left at the time of her death, about two thousand dollars, being the amount of a mortgage due the testator's estate, which had not been col- lected. The Surrogate decided that the devisee for life was bound to pay the interest on the mortgages on the Mansion House property", out of the rents and profits, during the continuance of her life estate, and that the payments made by the executor for that purpose, were misapplications of the monej^s of the estate, and he required him to account for the RESPECT TO REMAINDERMEN. 625 money so paid, with interest. The executor ap- pealed to the Supreme Court, where the decision of the Surrogate in resj)ect to those payments, was in principle affirmed. He then ajDpealed to the Court of Appeals. In giving the decision in the Court of Appeals, Denio, J., remarked : " It is a well established princij)le, that where there is an estate for life, and a remainder in fee, and there exists an incumbrance binding the whole estate, in the lands, and no spe- cial equities between the remainderman and the ■tenant for life can be shown, the latter is bound to pay the interest accruing during the continuance of his estate, and the owner of the future estate is to pay off the principal of the lien:"^ and had the testator stopped with the creation of such estates, this rule would have decided the rights of the par- ties. But in this case, the testator had clearly evinced his intention, that the widow should have, among other things, the clear use of the Mansion House property during her natural life, ^'- and all and several the rents, issues and profits thereof.'''' That the manner and means by which he directed the pay- ment of the mortgages, shows that they were to be paid, if practicable, at the expense of the remain- derman and not of the widow. Consequently the court held that the judgment of the Supreme Court ' Moseley v. Marshall, 22 N. Y. Rep., 202; see also House v. House, 10 Paige, 158; 4 Kent's Cora., 75; Morley v. Morley, 35 Eng.L. and Eq., 220; Lord Kensington v. Bouverie, 31 Eng. L. and Eq., 345; Revel v. Watkin- son, 1 Ves.. 93; Amesbury v. Brown, 1 Ves., 480; Tracy v. Herford, 2 Bro. C. C, 128; Hunt v. Watkins, 1 Humph., 498; Hepburn v. Hepburn, 2 Brad., 74. 40 626 LIABILITIES OF TRUSTEES IN and the sentence of the Surrogate should be reversed, and that the account of the executor should be ad- judicated upon the principle herein stated : and that the judgment, if not agreed on by the counsel for the parties, should be settled by one of the judges of this court. ^ It is the intention of the testator which is to pre- vail in determining the relative rights of the tenant for life and the remaindermen; and, consequently, in determining the duties and liabilities of the trus- tee. Although it is a well settled principle of law, that where perishable, ivasting or reversionary pro- perty is given to persons in succession, it should be converted into permanent funds, and the interest only be given to the tenant for life, j^et where such property is given specijicaUy in the strict sense of that term, it is held that there can be no reason for converting it.^ If an intention, that the property bequeathed should be enjoyed in specie, as it existed at the death of the testator, can be gathered from the will, although it is not in a technical sense specifically bequeathed, it ought not to be converted.^ Thus, it has been held, that an express direction for sale at a particular period, indicates an intention that there should be no previous sale or conver- ^ Moseley v. Marshall et al, 22 N. Y. Rep., 202. ^ Lord V. Godfrej^ 4 Mad., 4-5.5; Bethume v. Kenneday, 1 My. 8c Cr., 114; Evans v. Jones, 2 Coll., 516; Marshall v. Bremner, 2 Sm. & G., 2-37; Mills V. Brown, 21 Beav., 1; Fielding v. Preston, 5 W. R., 8-51; Hinves r.Hinves, 3 Hare, 611. 'Hinves v. Hinves, 3 Hare, 611; Mackie v. Mackie, 5 Hare, 70, 77; Neville v. Fortescue, 16 Sim., 333. RESPECT TO REMAINDERMEN. 627 sion/ The difference between a general and specific legacy, as administered by the court, is according to the supposed different intention of the testator, evinced thereby. Where books, furniture, and other specific chatteLs are specifically bequeathed by will, the 23resumj3tion is, that it was the intention of the testator they should be used by the legatee in the form in which they were given ; and the remainder- man must take them subject to the deterioration which they will have undergone by the lapse of time and by use.^ But this often seems to be unjust between the first taker and the remainderman. Hence, the presumption of equity is strongly against this course; and where specific chattels, instead of being given specifically, form a part of a general resid- uary bequest for life, with limitation over, the object of the testator will be presumed to have been to give the first taker the mere interest on the fund pro- duced, and the executor will be bound to convert the whole into cash, and either invest it for the purposes of the will, or pay it over on receiving security, as in the case of pecuniary legacies.^ But after all, the rules thus laid down will be varied to suit the purposes of the testator as gathered from ' Alcock V. Sloper, 2 My. & K., G99; Daniel v. Warren, 2 Y. & C. C. C, 290; Goodenougli v. Trcmamondo, 2 Beav., 512; Crow v. Crisford, 17 Beav., 507; Hind?;. Selby, 23 Beav., 373; Wearing v. Wearing, 23 Beav., 99; Bowden v. Bovvden, 17 Sim., 65. ^ Dunbar r. Woodcock, 10 Leigh, 628; Hale v. Burrodale, 1 Eq. Ca. Abr., 461; Bracken v. Bentley, 1 Rep. in Ch., 110; Harrison v. Foster, 9 Alab., 955. " Smith V. Barbara, 2 Dev. Eq., 420. 428; Covenhovcn v. Shuler, 2 Paige, 122; Randall D.Russell, 3 Meriv.,193; Preston on Leg., 96; Roper on Leg., 9; Henderson v. Vaulx, 10 Yerg., 30; Cairns v. Chaubert, 9 Paige, 160. 628 LIABILITIES OF TRUSTEES IN his expressions in making the bequest. If it be clearly his intention that the legatee for life shall have the actual use and enjoyment of the things bequeathed, and the remainderman shall take them subject to such deterioration as they may receive while in the hands of the first taker, there can be no ground for refusing him possession, &c., whether the bequest be general or specific} Whether a gift for life of specific articles which must be consumed in their use, such as hay, grain, firewood, wines, &c., is to be considered an absolute gift of the property, or whether they must be sold, the proceeds invested, and interest only be paid to the tenant for life, has been a question of much difficulty,'^ and is said not to be fully settled in England. Williams, in his work on Executors,^ lays down the rule thus : " A gift for life of things qucE ipso usu consumuntur , as corn, wine, if specific^ is an absolute gift of the property ; but, if residuary, the thing must be sold, and the interest of the produce paid to the legatee for life." ^ It has, also, been held, that the intention of the testator, that the first taker should enjoy the bequest even to the exclusion of those in remainder, might be inferred from the nature of the property bequeathed, as of hay, corn, wines and such articles, where the con- sumption is inseparable from the use. That, where * Dunl3ar v. Woodcock, 10 Leigh, 628; Evans v. Inglehart, 6 Gill. & Johns., 171; Holman's Appeal, 12 Harris, 178; Harrison tJ. Foster, 9 Alab., 955. "^ Porter v. Tournay, 3 Yes., 31-1; Randall v. Russell, 3 Meriv., 194. ' Page 1259. RESPECT TO REMAINDERMEN. 629 this is the case, the right of those in remainder will be limited to such portions of the bequest as may remain unconsumed at the death of the lega- tee for life, or may even fail altogether, as repugnant to the primary purposes of the gift/ As the question of conversion is one of intention on the part of the testator, it follows that where there is a 'positive direction in the will for a trustee to convert the personal estate into money, and to invest in government or real securities, and the trusts of the investment are declared for the benefit of one for life, with remainder over ; the legatee for life is entitled to receive the amount only of so much of the income as would have arisen from the personal estate if converted and invested according to the trust, within a year after the testator's death; and the trustees will not be allowed any greater payment to him in passing their accounts f and, as the testator directed his personal estate to be con- verted into money and invested, it follows that every part of the personal estate is to be converted for investment, except that, which, according to the rules of court, is deemed to be properly invested. In the case of Howe v. The Earl of Dartmouth,^ Lord Eldon held, that, although bank stock might be as safe as any government security, and he > Henderson v. Vaulx, 10 Yerg., 30; State v. Warrington, 4 Harrington, 55; Randall V. Russell, 3 Mer., 194; Holman's Appeal, 12 Harris, 178; Tyson v. Blake, 22 N. Y. Rep., 558; Wright v. Miller, 8 N. Y. Rep., 25; Sliaw V. Huzzy, 41 Maine, 495. "" Hill on Trustees, 387; Dimes v. Scott, 4 Russ., 195. ^ Howe V. The Earl of Dartmouth, 7 Ves., 137; see S. C, 2 Leading Cases in Epuity, 274. G30 LIABILITIES OF TRUSTEES IN believed it was, yet it was not government security ; and, therefore, the court did not lay out, or leave, the property in bank stock. And what the court would do, it expected from trustees and executors. As to bank stocks, he said, the court had ordered four per cents, and jive per cents, to be sold and converted into three per cents, upon this ground, that, however likely or not, that they may be redeemed, the court looks at them as a fund that is not permanent, though it may remain forever; and considers, that from that quality there is an advantage to the present holder, who gets more interest because they are liable to be redeemed." Such being the view taken by the court, if a trustee or executor, where there is positive directions in the will to con- vert the personal estate into money for investment, permits an unauthorized security, producing a much higher rate of interest — as, for instance, an Indian security producing ten per cent. — to remain undis- posed of for the benefit of the tenant for life, and pays to such tenant the whole income of the ten per cent., he will be held liable to make good to the remainderman the difference between the annual amount actually paid, and that which, according to the foregoing rule, ought to have been paid by him to the tenant for life, which, in the case supposed, would be the difference between ten per cent, and three per cent.^ But this would not probably be the rule where there Avere no directions given by the ' Dimes V. Scott, 4 Russ , 195; Mills v. Mills, 7 Sim., 509; Howe v. Earl of Dartmouth, 7 Ves., 150; Price v. Anderson, 15 Sim., 479. RESPECT TO REMAINDERMEN. 631 testator to the executor or trustee to convert the personal estate/ and especially would it not be the rule in a case where the bequest was in its nature specific. Thus, in Lord v. Godfrey,^ the testator bequeathed the residue of the stocks and funds then, or at his decease standing in his name, after payment of his debts, to trustees, to pay the inter- est and dividends to his wife for life, with remainder to C. L.; and empowered his trustees, at their discre- tion, to change the stock as often as to them should seem fit and proper. At the testator's death there were Long Annuities standing in his name produc- ing ^365 per annum. Sir J. Leach, Vice Chancel- lor, held, that the widow was entitled to enjoy the Long Annuities in specie. " It would, I think," said his Honor, " be too much to intend that the testator meant to authorize the trustees, at their pleasure, to diminish the gift he had before made to his wife. Such a power is given to the trustees with a view to the security of the property, and not with a view to vary or affect the relative rights of the legatees."- More recently the court have been inclined to lean against the doctrine of con- version, strongly as is consistent with the supposi- tion that the rule is well founded.^ Hare and Wallace, in their notes to the case of Howe v. Earl * Prendcrgast v. Prendergast, 3 House Lords Ca., 195; Meyer v. Simm- son, 21 Law. J. Ch., 678; and see Williamson v. Williamson, 6 Paige 30.3. * Lord V. Godfrey, 4 Mad., 455; Bethume v. Kennedy. 1 My. & Cr., 114; Evans v. Jones, 2 Coll., 516; Marshall v. Bremner, 2 Sm.&t G., 237; Mills V. Brown, 21 Beav., 1; Fielding v. Preston, 5 W. R., 851. ^ Hinves v. Hinves, 3 Hare, 611; Mackie v. Mackie, 5 Hare, 70, 77; Alcock V. Sloper, 2 My. & K., 699; Daniel v, Warren. 2 Y. 8t C, 290. 632 LIABILITIES OF TRUSTEES IN of Dartmouth/ state very concisely the American doctrine on the subject of the relative rights of the tenant for life and remainderman in these cases. They say, " the general principle followed in Howe V. Earl of Dartmouth, that, in adjusting the respec- tive interests of legatees for life and remainder- men in bequests of personalty, it will be presumed that the testator intended that the bequest should be continuous, and that it should not be consumed in the hands of the first taker, but should survive for the benefit of those in remainder, has been adopted by the courts of this country, although the instances requiring its application are much fewer Avith us than in England. It is well settled that Avhere there is a pecuniary or residuary bequest for life, with a limitation over, the executor will be bound to protect the interests of those in remainder, by requiring security from the legatee for life, or by converting the fund into cash and investing it, in trust, for the benefit of all who are entitled under the will.' This general rule, which is simply designed to give effect to the intention of the testa- tor, will, however, yield wholly or in part where- ever he manifests an opposite or different intention; or where it can be applied without defeating the purposes of the bequest. When money, or property meant to be converted into money, is bequeathed, ' 2 Leading Cases in Equity, 284. " Covcnhoven v. Sliuler, 2 Paige, 132; Williamson v. Williamson, 6 Paige, 298; Kinnard v. Kinnard, 5 Watts, 108; Eeschelburger v. Barnetz, 17 S. &. R., 293; Woods v. Sullivan. 1 Swan, 507; Wootten v. Burch, 2 Md. Ch., 190. RESPECT TO REMAINDERMEN. 633 there is no hardship in requiring security before payment or delivery to the legatee for life, because if he is unable to give security, the object of the testator may be equally well attained by investing the fund, and allowing him to receive the interest. But where hooks, furniture, or other specific chattels are specifically bequeathed by will, the presumption is that the testator intended they should be used by the legatee in the form in which they were given; and, as they must be delivered to him in specie in order to effectuate this intention, security will not be required, because it would defeat the bequest in case the legatee were unable to give it. Hence, under these circumstances, the duty of the executor is limited to taking an inventory of the legatee for life, without security, and subject to such deterioration or consumption as may result from an appropriate use which he may make of it.^ But, the presumption of equity is strongly against a course, which necessarily interferes with the equalization of the bequest between the legatee for life and those in remainder, by compelling the latter to take the property subject to the deterioration which it has undergone by the lapse of time and use, that where specific chattels, instead of being given specifically, form a part of a general residu- ary bequest for life, with limitations over, the object of the testator will be presumed to have been ' Woods V. Sullivan, 1 Swan, 507; Wootten v. Burch, 2 Md. Ch., 190; Raney i'. Heath, 2 Heath & Patton,206; Henderson y. Vaulx, 10 Yerg.,30; Spear v. Tinkum, 2 Barb. Ch., 211; Smith v. Barham, 2 Dev. Eq., 420; Holman's Appeal, 12 Harris, 174; German v. German, 3 Casey, 116. 634 LIABILITIES OF TRUSTEES IN to o-ive tlie first taker the mere interest on the fund ; and the executor will be bound to convert the whole into cash, and either invest it for the purposes of the will, or pay it over on receiving security, as in the case of a pecuniary legacy."^ Out of this doctrine of conversion arises other questions, as to the time luhen the interest is to com- mence ; what interest is to be allow^ed, and when to be paid. Where a testator directs his residuary estate to be converted and invested in a particular manner, the tenant for life is entitled, from the first year after the testator's death, to receive the amount of income which those investments would have pro- duced if made at the time." But the more difficult question is, Avhat interest shall the tenant for life take during the first year after the testator's death? Upon this question there has been much diversity. As the assent of an executor to a legacy is neces- sary, he cannot be compelled to pay it, until a suffi- cient time has elapsed to enable him to examine the situation of the testator's estate. By the civil law he was allowed a year from the death of the testa- tor, during which time it was presumed he might fully inform himself of the state of the testator's property. The same period has been generally adopted in the English and American courts, where there are no statutes of distribution directing other- wise ; and such, likewise, is the usual period fixed ' Smith ij.Barham, 2 Dev.Eq., 420, 428; Covenhoven v. Shuler, 2 Paige, 122. = Dimes v. Scott, 4 Russ., 195; Howe v. The Earl of Dartmouth, 7 Ves., 151. RESPECT TO REMAIXDERMEN. 635 upon by statutes of distribution.^ As a general rule, interest is payable on legacies from the time when they actually become due; and, as general legacies, where there are no directions in the will fixing their time of payment, are not due until one year after the death of the testator, interest will be computed from that time.^ According to this prin- ciple, it has been held, that the tenant for life may be entitled to nothing until the expiration of a year from the death of the testator,^ and in the case of Robinson v. Robinson,'* it was held, that where trustees had an option to vest in the three per. cents, or on real security, which they neglected to do, the tenant for life was entitled to interest from the end of one year after the death of the testator, at four 'Wood iJ. Penoyre, 13 Ves., 333, 334; Pearson v. Pearson, 1 Sch. & Left-., 11; Williams on Executors, 1250; Eyre v. Golding, 5 Binn. Rep. 475; Betzer v. Halm, 14 S. & R., 238; Miles v. Wister, 5 Binn. Rep., 472' Miller v. Philip, 5 Paige Rep., 573; Kingsland v. Betts, 1 Edw. Ch.. 59G Iloyt V. Hilton, 2 Edw. Ch., 202; Marr v. McCullougli, 6 Porter, 507 Hilyard's Estate, 5 W. & S., 31; Brown v. Cattell, 1 Desau., 112; Bowles V. Drayton, 1 Desau., 489; Jacobs v. Bull, 1 Watts, 372; Ilassanclever v. Tucker, 2 Binn., 525; Moffat v. Burnie, 16 Beav., 298; Atlee v. Ilook, 23 Law J. Cli., 776, V. C. Stuart; Booth v. Ammerman, 4 Brad., 132, 133; N. Y. Rev. St., vol. iii., p. 177. sec. 48, 5th ed. "" Child V. Elsworthy, 2 DeG., Mac. & G., 679; Wood v. Penoyre, 13 Yes., 333; Gibson v. Bott, 7 Ves., 96; Pearson v. Pearson, 1 S.& L.,10; Coll3'er t). Ashburner, 2 DeG. & Sra., 404; see also Garthsliore v. Chalie, 10 Ves., 13; Marsh v. Hague, 1 Edw. Ch., 174; Booth v. Ammerman, 4 Brad., 132; Williamson v. Williamson, 6 Paige, 298; Burtis v. Dodge, 1 Barb. Ch., 77; Smith V. Lambert, 30 Maine, 137. ' Scott V. Hallingworth, 3 Mad., 161; Vickers v. Scott, 3 M. & K., 500; Taylor v. Hibbert, 1 J. &-W., 308; Tucker v. Boswell, 5 Beav , 607; see also Sitewcll v. Barnard, 6 Ves., 522. But this rule has been questioned as applicable to legatees for life generally, .see Augustine v. Martin, T. & R., 238, and Hewitt v. Morris, T. & R., 244. * Robinson v. Robinson, 21 Law J. Ch., 111. 636 LIABILITIES OF TRUSTEES IN per cent, on the money the property would have produced from the end of that year up to the time of the investment in the three per cents. Where the subject matter of the bequest is such that it does not require to be converted, as where it is already properly invested in the funds, no time is required for conversion or investment, and there would appear to be no valid reason why the tenant for life should not have the enjoyment of the use, or the income, from the death of the testator. Thus, it has been held that where the bequest is a life estate in a residuary fund, where no time is pre- scribed in the will for the commencement of the interest, or the enjoyment of the use or income of such residue, the legatee for life is entitled to the interest or income of the clear residue, as after- wards ascertained, to be computed from the death of the testator} In the case of La Terriere,^ Sir A. Hart, Vice Chancellor, laid down the rule, that the cestui que trust for life, during the first year after the testator's death, was entitled to the income of such parts of the estate as are properly invested at the death of the testator, or may become so invested during the year. Upon the principle that interest is to be com- puted from the time the legacy becomes due, where the legacy becomes due upon the happening of a certain contingency, interest will be computed from 1 Williamson v. Williamson, 6 Paige, 304; La Terriere -y.Bulmer, 2 Sim., 18; see also Gibson v. Bott, 7 Ves., 95; Hewitt v. Morris, T. & R., 244; see also Sir J. Wigram, in Taylor v. Clark, 1 Hare, 173, 174. RESPECT TO REMAINDERMEN. 637 the date of such contingency/ There would seem to be an exception to this general rule, that legacies are not to draw interest until, by the terms of the wdll, etc., they become due. The exception is where a legacy is left by a parent, or one in loco parentis^ to an infant, without making other suitable provi- sion for its support. In such case, whether the legacy be vested or contingent, interest on the legacy as maintenance will be allowed from the death of the testator.- Upon a similar principle, a legacy given to the widow, in lieu of dower, no other maintenance being provided for her, is due immediately on the death of her husband.^ In England it is the settled doctrine, that any extraordinary additions to the usual annual income of stock or other property, settled in trust, upon one for life, with remainder over, must be treated as capital, and added to the principal fund." But where the addition to the annual income is not extraordinary, or such as might not have been rea- sonably anticipated by the testator, it will be given to the tenant for life. Thus, where an insurance ' Coventry v. Higgins, 14 Sim., 30; Booth v. Ammerman, 4 Brad., 135; Pickwick V. Gibbs, 1 Beav., 271; Berdsall v. Hewlett, 1 Paige, 32. ^Acherlyt). Wheeler, 1 P. Wms., 783; Hill v. Hill, 1 V. & B., 183; Mills V. Robarts, 1 Russ. & My., 555; Chambers v. Godwin, 11 Ves., 2; Brown v. Temperly, 3 Russ., 263; Lupton v. Liipton, 2 Johns. Ch., 614; Tan Bramer v. Hoffman, 2 Johns. Ch., 200. ^ Williamson v. Williamson, 6 Paige, 298. But the fact that a general legacy of bank stock is made to a widow in lieu of dower, will not give her the income of such stock from the time of the death of the testator until its transfer to her: otherwise had the bequest been specific. Tifft v. Porter, 8 N. Y. Rep., 516. * Brander v. Brander, 4 Ves., 800; Paris v. Paris, 10 Ves., 18o; Hooper V. Rossistcr, 13 Price, 774; S. C, 1 McClel., 527. G38 LIABILITIES OF TRUSTEES IN company had declared for several years, yearly divi- dends of two and one-half per cent., but in 1846 declared a dividend of ten per cent, in addition, it was held that the tenant for life of the stock, was entitled to the whole amount.^ The principle is not so well defined as to make its application, in all cases, easy ; the trustee, therefore, would do well to take the advice of the court, in cases where the increase over the annual income is considerable, before paying it over to the beneficial tenant for life ; for should he pay over to him such extraordi- nary bonus when he ought to have invested it for the benefit of all parties, he will be held answera- ble to those in remainder. The general rule, how- ever, in such cases is, that the tenant for life is entitled to increase and profits.^ A bequest of the income of shares in a corpora- tion, to the testator's widow, for life, for her own support and the education of her children, is held to include a dividend declared on such shares, after her death, which dividend, however, was declared for a period which expired before her death.'^ Where real estate is settled in trust for a tenant for life, with remainder over, and there is an incum- brance on the whole estate, it is the duty of the life tenant to keep down the interest, during the con- tinuance of his estate, and the owner, of the future * Price V. Anderson, 15 Sim., 473; see also Johnson v. Johnson, 15 Jur., 714; Murray v. Glass. 17 Jur.. 816; 23 Law J. Ch., 126. "" Ware v. McCandlish, 11 Leigh, 599; Cogswell v. Cogswell, 2 Edw. Ch., 231. ^ Johnson, Ex'or, &c., v. Bridgewater Iron Manufacturing Company. 14 Gray, 276; Ellis v. Essex Merrimack Bridge, 2 Pick., 248. RESPECT TO REMAINDERMElSr. 639 estate is to pay off the princiixal of the lien/ Such is the supposed intention of the testator, in the absence of any particular direction upon that sub- ject. But where it appears from his directions in the will, that he intended the life tenant to enjoy the clear income of the property during the contin- uance of her estate, and to have the interest paid from other funds of the remaindermen, such inten- tion will govern.^ So, also, where real estate is settled in trust for a life tenant with remainders over, the expense of keeping the mansion house in substantial repair must be defrayed out of the inte- rest of the tenant for life, and the trustee will not be justified in raising it out of the corpus of the estate.^ But in a case where the executors held the residuary real and personal property in trust for a contingent remainderman in fee, with remainder over, on failure of the contingency, and two parcels of the land in trust for A. for life, it was held, that the executors could not, in the absence of any ex- press power, apply the residuary personal property to the improvement of the one parcel which re- mained in the same condition as when devised ; but » 4 Kent's Com., 74; Moseley v. Marshall, 22 N. Y. Rep., 202; House v. House, 10 Paige, 158; Morley v. Morley, 35 Eng. L. and Eq. Rep., 220; Lord Hard wick in Casbourne v. Scarfe, 1 Atk., 606; Tracy v. Herford, 2 Bro., 128; Jones v. Slierrard, 2 Dev. 8c Batt. Eq., 187; Hinves v. Hinves, 3 Hare, 609; 1 Washburn on Real Prop., 80, 96, 573; Swaine v. Perine, 5 Johns. Ch., 482; Story's Eq. Jur., sec 487. ^ ]\[oseley v. Marshall, 22 N. Y. Rep., 202. ' Bostock V. Blackomy, 2 Bro. C. C, 653; Hibbert v. Cook, 1 Sim. &, St., 552; Kairn v. Majoribanks, 3 Russ., 582; Caldecott v. Brown, 2 Hare, 144; Jones v. Dawson, 19 Alab., 072; Martin's Appeal, 23 Penn. St. Rep., 438. 640 LIABILITIES OF TRUSTEES ml the other parcel, in consequence of a municipal improvement, had become capable of being leased for a permanent term at a high rent, if warehouses were erected thereon, and the court directed or permitted the executors to apply the residuary personal property to the erection of warehouses on the land, charging the tenant for life with the inte- rest on the investment, a reasonable allowance for the depreciation of the buildings, for taxes and insu- rance, by way of deduction from the rents.^ So, also, where trustees were directed to invest in real estate, and purchase a house, it was said that the expense of putting it in tenantable repair should come from the corpus of the fund." So, also, wdiere the tenant for life was compelled to make good cer- tain dilapidations, incurred by the testator under a covenant in the lease, it was held that the expenses were to be charged on the corpus of the estate.^ In the last case, the bequest was specific. The gene- ral rule is, that a tenant for life, making permanent improvements on the estate, will not be allowed compensation as against the remaindermen.'* It is also a rule that the tenant for life, in posses- sion of the trust estate, is liable for all rates and taxes. ^ ' CogsM^ell V. Cogswell, 2 Edw. Ch. Rep.. 231. " Parsons v. Winslow, 16 Mass., 361. ^ Harris v. Prj'ner, 1 Drew, 174. * Corbctt V. Lawrens, 5 Rich Eq., 801. ' Foiintaine v. Pellet, 1 Ves., Jr., 342; Cairns v. Chabert, 3 Edw. Ch., 312; Jones v. Dawson, 19 Alab., 672; Tupper v. Fuller, 7 Rich Eq., 170; McMillen v. Robbins, 5 Ham.. (Ohio,) 28; 1 Washburn on Real Prop., 97. LIABILITIES OF TRUSTEES, ETC. 641 Section IV. LIABILILITY OF TRUSTEES AND GUARDIANS OF MINORS. Infants and their property are peculiarly under the supervision and protection of the Court of Chancery, which is exceeding jealous of their rights and inter- ests. This court possesses an inherent jurisdiction which extends to the care of their persons so far as is necessary for their protection and education ; and, also, to the care of their property both real and personal, for its due management and preservation, and proper application for their maintenance.^ If the father is not able to maintain his children, the court, on application, will order maintenance out of their own estate ; and this inability need not depend upon insolvency, but an inability from limited means, to give to his child such an educa- tion as its fortune, possessed or expected, demands. And such maintenance will be directed although the devise or settlement under which the property is held contains no direction for maintenance, and even though it direct an accumulation.^ But it must be understood that this original and inherent jurisdiction of a Court of Chancery, respecting the control and management of the infants' property, relates only to their -personal property and the income of their real estate. The court has no inherent power to direct a sale of their real property ^ Williamson v. Berry, 8 How., 495, 531. ^ Buckworth V. Buckworth, 1 Cox. 80; Jervis v. Silk, Coop., 52; also Williamson v. Berry, 8 How., 495, 531. 41 642 LIABILITIES OF TRUSTEES for their maintenance or education, and can only do so when authorized by the LegisLature/ Chancery deals with the estate of an infant in the manner best suited for its advantage, and with- out being tied down by any rules so intiexible as not to yield to its good where it is the only party in interest. It will, sometimes, refuse an allowance for its support, even out of the interest or income of its estate, where it is small and that of its father is ample ; and wdll require the father to dis- charge the natural duty of supporting and educa- ting his child, which the law casts upon him prima facie, and will not excuse him from doing without sufficient cause.^ But, on the other hand, where the fortune of the child is large, and that of its father is inadequate for its proper support and edu- cation, a suitable allowance will be made out of the income of its estate.^ Where the necessities of the infant require it, the court will provide for its immediate w^ants, if need be, out of the principal fund.'* But Equity * Williamson v. Berry, 8 How., 495, &c.; see also Clark v. Van Surlay, 15 Wend., 4BG, and Cochran r. Van Surlay, 20 Wend., 865; Grignon's Lessee v. Astor, 2 Howard, 319; Roggers v. Dill, 6 Hill, 415. " 3 Leading Cases in Equity, 265, 3d Am. ed. ; in matter of Kane, 2 Barb. Ch., 375; Cruger v. Hayward, 2 Desau., 94; Sparhawk v. Buel, 9 Vt., 41; Addison v. Bowie, 2 Bland., 606; Myres v. Myres, 2 McCord's Ch., 214; Dupont V. Johnson, 1 Bail. Eq., 279; Spear v. Spear, 9 Rich Eq., 188. * Rice V. Townele,4 Sand. Ch., 568; Wilkes v. Roggers, 6 Johns., 566; Hey ward t). Cuthbert, 4 Desau., 445; in matter of Burke, 4 Sandf. Ch.,617. * Williams' Case, 3 Bland., 186; Barlow v. Grant, 1 Vern.,255; ex parte Allen, 3 DeG & Sm., 485; Long v. Norcom, 2 Ired. Eq., 354; Withers v. Hickman, 6 B. Monr., 293; matter of Bostwick,4 Johns. Ch.,100; ex parte Hays, 13 Jur., 762; ex parte Knott, 1 R. & M., 499; Franklin v. Green, 2 Vern., 137; Nunn v. Harvey, 2 DeG. & Sm., 301. AND GUARDIANS OF MINORS. 643 cannot make an allowance out of the principal fund where there is a limitation over, in case of the infimt's death, to a third person. Although the court, in extreme cases, might make such an allowance where the limitation over was to the survivors of the original donees.* The general rule, and one from which it will seldom do to depart without leave from the court, is, that trustees and guardians can only apply the income of the infant's estate to his maintenance and support.^ For, if they transgress the strict line of their duty by applying the capital of the fund, or any part of it, to the maintenance or advancement of the infant on their own authority, they will be liable to be decreed to pay the whole amount of the fund without any deduction, to the infant or its assignee upon its coming of age, notwithstanding they have acted in good faith, and for the benefit of the infant ; for the law deems such payments ought to be discouraged.^ There are instances where a payment out of the capital of an infant's fortune by trustees has been allowed to them, although ' In the matter of Davison, 6 Paige, 136; in matter of Ryder, 11 Paige, 185; Miles v. AVistar, 5 Binn., 477. '^ Davis t). Harkness, 1 Gilm., 173; Prince v. Logan, Spears' Eq., 29; Frelick v. Turner, 26 Miss., 393; Martin's Appeal, 23 Penn St. Rep., 488; McDowell V. Caldwell, 2 McGord's Ch., 43; Hester v. Wilkinson, 6 Hump., 219; Villard v. Chovin, 2 Strob. Eq., 40; Haigood v. Wells, 1 Hill's Eq., 59; Carter r. Rolland, 11 Hump., 339; 3 Leading Cases in Equity, 266. => Davis V. Austin, 3 Bro. C C, 178; Lee v. Bro^vn, 4 Ves.,362; Walker V. Wetherell, 6 Ves., 473; Hill on Trustees, 399; Villard v. Chovin, 2 Strob. Eq., 40; McDowell v. Caldwell, 2 McCord's Ch., 43; Davis v. Roberts, 1 Smede's & Mar. Ch., 543; Myres v. Wade, 6 Randolph, 444; Davis V. Harkness, 1 Gilm., 173. 644 LIABILITIES OF TRUSTEES made upon their own authority, as where made for actual necessaries for the infant's use.^ It is the duty of the trustee or guardian, when- ever occasion requires that he should expend any portion of the capital of the infant's fund for his maintenance and support, to apply to the court for permission and direction in the premises. But where the nature of the case, or the want of a proper tribunal competent to direct the course and amount of expenditure, has prevented such appli- cation, it will be excused, and the account will be confirmed when subsequently presented;^ and it has been held that a guardian will always obtain an allowance for expenditures made out of princi- pal, whenever he can make out such a case of necessity as would have precluded all question as to the proper course, had the question been brought before the court by a request for directions.^ Where the trust fund is given over for the benefit of another person in case of the death of the infant under twenty-one, no part of the capital can be applied for the infant's advancement unless there is an express power to do so created by the ' Davis V. Austin, 3 Bro. C. C, 178; Long v. Norcom, 2 Ircd. Eq., 354; Sparhawk v. Buell, 9Vt.,41; Withers v. Hickman, 6 B. Monr., 293; in matter of Bostwick, 4 Johns. Ch. 100. "Long V. Norcom, 2 Ired. Eq., 354; Sparhawk v. Buell, 9Vt.,41; Withers v. Hickman, 6 B. Monr., 293. ' In matter of Bostwick, 4 Johns. Ch., 100; 3 Leading Cases in Equity, 267; Long V. Norcom,2 Ired. Eq., 354; Villard v.Chovin,2 Strob. Eq., 40; Lee V. Brown, 4 Ves., 369; Sisson v. Shaw, 19 Ves., 288; Maberly v. Tur- ton, 14 Ves., 499; Barlow v. Grant, 1 Vern., 255; Franklin v. Green, 2 Vern., 137; 1 Roper on Legacies, 768, and 2 Williams' Ex'ors, 869. AND GUARDIANS OF MINORS. 645 trust instrument/ In such cases, there is no power to appropriate any part of the capital, unless those who are or may be entitled in remainder, being competent, appear and give their consent.'^ The trustee cannot safely apply the income of the inftmt's fortune for his maintenance or benefit, unless he has the authority of the trust instrument, or the sanction of the court ; and although the trust instrument may authorize an appropriation for the maintenance of the infant, yet if it leaves the amount uncertain, the trustee will find it more prudent to apply to the court to determine the amount to be appropriated for that purpose.^ And where the trustee is authorized to appropriate any portion of the income to the maintenance and support of the infant, he may either make the application himself, ^or he may pay it into the hands of the guardian or parent. But in the exer- cise of his discretion he is not to place the funds directly in the hands of the beneficiary who, from his mental or moral condition, is incapable of using it beneficially to himself* It has already been remarked that equity could not make an allowance out of the principal fund, * Lee V. Brown, 4 Ves., 369; Van Vechten v. Van Vechten, 8 Paige, 104. ' Evans v. Massey, 1 Y. & J., 196; Hill on Trustees, 400; see also Erratt t?. Barlow, 14 Ves., 202; Turner v. Turner, 4 Sim., 430; Cannings v Flower, 7 Sim., 523; Bradley v. Amidon, 10 Paige, 235. ' Roper on Legacies, 768; Williams on Executors, 868; Owens v. Walker, 2 Strob. Eq., 280; ex parte Williams, 2 Coll. Ch., 740; Andrews v. Part- ington. 3 Bro. C. C, 60; Bridge v. Brown, 2 N. C. C, 187; Cotham v. West, 1 Beav., 381. * Mason v. Jones, 2 Barb. Ch. 248; Gott v. Cook, 7 Paige, 538; see also Van Vechten v. Van Vechten, 8 Paige, 104. 646 LIABILITIES OF TRUSTEES where, in case of the death of the infant, there waa a limitation over to a third person. But this has been done where the gift proceeded from the parent, or one standing in loco parentis, and the subject of the trust was a residuary personal estate, and the property was given over to other children on the death of the infant under twenty-one, when the chances of survivorship were deemed equal/ In some of the States the Legislature have con- ferred upon the court express power to make allow- ances for the maintenance of infants. In New York it is enacted," that "where rents and profits are directed to be accumulated for the benefit of infants entitled to the expectant estate, and such infants shall be destitute of other sufficient means of sup- port and education, the Supreme Court, upon the application of their guardian, may direct a suitable sum out of such rents and profits to be applied to their maintenance and education." So, likewise, in Pennsylvania, the Legislature have, by enactment^ provided that notwithstanding any direction to accumulate rents, issues, and profits for the benefit of any minor or minors, the court may, on applica- tion of their guardian, where there shall be no other means for maintenance and education, decree an adequate allowance for such purpose, making an * Green v. Ekins, 2 Atk., 476; Bullock v. Stones, 2 Ves., 521; Newport V. Cook, 2 Ashm., 332; Seibert's Appeal, 19 Penn. St. Rep., 49; Fairman V. Green, 10 Ves., 48; ex parte Kebble. 11 Ves., 604; Turner v. Turner, 4 Sim., 434; see also Matter of Ryder, 11 Paige, 185; Leake v. Robinson, 2 Mer., 384. « 1 Rev. Stat., 726, sec. 39. » Act of April 18, 1853. AND GUAlRDIANS OF MINORS. 64T equal distribution among those who have equal interests. Statutes of this character were enacted because of a question which existed as to the pro- priety of the exercise of such a power by the court unauthorized by legislative enactment. Courts, however, in extreme cases, have exercised a similar power.^ If the father of the infant be alive, and able to support his child, he is by law bound to do so ; and the trustee would not be justified in applying the income of the infant's estate for his maintenance, even though the trust instrument should contain a general power for maintenance.^ But this does not apply to a step-father, who is under no such legal obligation to support his stej^-child,^ but an allow- ance for maintenance and education of his ward, was refused to a step-father, although she had lived with him ; it appearing that he had expended noth- ing otherwise for her.'* Nither will this doctrine be applied in a case where, by the marriage settle- ment of the parents, a positive trust for the appli- cation of the children's income to their maintenance and education, has been created.^ But if the trust ' Greenwell v. Greemvell, 5 Ves., 194; Collis v. Blackburn, 9 Ves., 470; Fairman v. Green, 10 Ves., 45; McDermot v. Kealy, 3 Russ., 264; Stretch t). Watkins 1 Mad., 253; Corbin r. Wilson, 2 Ashm., 208; Newport v. Cook, 2 Ashm., 342. ^Matter of Kane, 2 Barb. Ch., 375; Bethea v. McCall, 5 Alab., 312; Chaplin v. Moore, 7 B. Monr., 173; Sparhawk v. Buel, 9 Vt., 41; Cruger v. Heyward, 2 Desau., 94; Dupont v. Johnson, 1 Bail. Eq., 279. ' Gay V. Ballon, 4 Wend., 403; Freto v. Brown, 4 Mass., 675. * Booth V. Sineath, 2 Strob. Eq., 31. ' Munday v. Lord Howe, 4 Bro. C C, 223; Stocken v. Stocken, 4 Sim., 152; Meacher v. Young, 2 M. & K., 490. 648 LIABILITIES OF TRUSTEES, ETC. thus created is only discretionary and not positivCy the father cannot compel the trustees to exercise this power in exoneration of his own liability.^ The mother is not under a legal obligation to maintain her children ; consequently the rule is not applicable where the father is dead, or is unable to support his children, although the mother may be alive and able.^ This last point however, has been questioned.^ AVliere the interest of the children's fund is ex- pressly given to the father, for their maintenance, it is, in fact, a gift pro tanto for the benefit of the father. Thus, where the interest of legacies given to the parent, or the rents and proceeds of shares of minor children are directed to be paid to the parent "for" or "toward" their respective main- tenance and education, although with a direction that in case of death under twenty-one, the shares of each, with accumulations, if any, Shall go over to the survivors, the father having maintained the children is entitled to the proceeds without an account.'* But the income will be directed to be applied to the support and maintenance of the chil- dren notwithstanding the bankruptcy of the parent.^ ' Thompson v. GrifiTcn, Cr. h Ph.. 322. ' In Matter of Bostwick, 4 Johns. Ch., 100; Dawes v. Howard, 4 Mass., 97; Whipple t). Dow, 2 Mass., 415; Heyward v. Cuthbert, 4 Desau., 445; Douglass V. Andrews, 12 Beav., 310; Bruin v. Knott, 1 Phil., 573; Ander- ton V. Yates, 5 DeG. & Sm., 202. =■ Billingsby v. Critchett, 1 Bro. C. C, 268; Hawley t;. Bannister, 4 Mad., 275, 280; but see Smee v. Martin. Bunb., 131. * Brown v. Paull, 1 Sim., N. S., 92; Hadow r. Hadow, 9 Sim., 438; Rainsford v. Rainsford, Rice's Eq., 343. ' Dalton's Settlement, 1 DeG., Mac. 8c G., 265 TRUSTEES OF MARRIED WOMEN, ETC. 649 Section V. TRUSTEES OF MARRIED WOMEN, THEIR DUTIES AND LIABILITIES IN RESPECT THERETO. At common law, *'a feme covert cannot in any way be sued even for necessaries. Neither can she bind herself or her husband by specialty. And, although living with him, and not allowed neces- saries, or apart from him, whether on an insufficient or an unpaid allowance, she may so far bind him, that those who furnish her with articles of subsist- ence may sue him ; yet, even in respect to these, she herself is free from all suit. Such is her posi- tion of disability, or immunity at law. Her sepa- rate existence is not contemplated ; it is merged by the coverture in that of her husband ; and she is no more recognized than is the cestui que trust of the mortgagor ; the legal estate, which is the only inte- rest the law recognizes, being in others. But in equity, the case is wholly different. Her separate existence, both as regards her liability and her rights, is here abundantly acknowledged: not, in- deed, that her person can be made liable, but her property may, and it can be reached through a suit instituted against herself and trustee."^ * Lord Brougham in Murray v. Barlee, 3 My. & K., 220, 222; see Hulme V. Tenant. 1 Bro. C C, 16, and 2 Dick, 560, and 1 Lead. Ca. Eq., 394; Peacock v. Monk, 2 Ves., 190; Allen v. Papworth, 1 Ves., 163; Fetliplace V. Gorges, 1 Ves., 46, and S. C 3 Bro. C. C, 8; Rich v. Cockill, 9 Ves., 359; Wagstaff r. Smith, 9 Ves., 520; Thackwell r. Gardner, 5 DeG.& Sm., 58; Hodgson v. Hodgson, 2 Kee, 704; Humphry v. Richards. 2 Jur., N. S., 432; Sturgis v. Corp, 13 Ves., 190; see also Jacques v. The Methodist Episcopal Church, 17 Johns., 548, 578, 579, 585; Dyatt v. N. A. Coal Co., 20 Wend., 570, 573; Powell v. Murray, 2 Edw., 686, 643; 10 Barb., 597; 650 TRUSTEES OF MARRIED WOMEN, ETC. In many of the States, the doctrine as stated by Lord Brougham, that in equity, a feme covert has a separate existence both as regards her rights and her liabilities has also been acknowledged. In the case of Jacques v. M. Ep. Ch.,^ Spencer, Ch. J., declared that the decisions fully established the doctrine "that a Jeme covert, with respect to her separate estate, is to be regarded in a Court of Equity, as a feme sole, and may dispose of her pro- perty without the consent or concurrence of her trustee, unless she is specially restrained by the instrument under which she acquires her separate estate: that the established rule in equity is, that where a feme covert, having separate property, enters into an agreement and sufficiently indicates her intention to affect by it her separate estate, a Court of Equity wdll apply it to the satisfaction of such an engagement." Piatt, J., considered the rule to be, " that a feme covert, having a sej^arate estate, is to be regarded as a fe?ne sole as to her right of con- tracting for, and disposing of it. The jus dispon- endi is incident to her separate property and follows, of course, by implication. She may give it to whom she pleases, or charge it with the deljts of her hus- band, provided no undue influence be exerted over Wadliam v. The Society, 2 Kernan, 415; The A. Ins. Co. v. Bay, 4 Com., 9; Gibson v. Walker, 20 N. Y. Rep., 479; Imlay v. Huntington, 20 Conn., 149; Cook v. Husbands, 11 Maryl., 492; Harris v. Harris, 7 Ired. Eq., 311; Mxon t'. Rore, 12 Grat., 425; Whitesides v. Carman, 23 Mo., 457; also Legond v. Garland, ib., 547; Ozly i;. Ikelheimer, 26 Alab., 382; Bell v. Kellar, 13 B. Monr., 381; Lillard v. Turner. 16 B. Monr, 374; Burch^u Brackenridge, 16 B. Monr., 482; Wylly v. Collins, 9 Geo., 223; Roberts v. West, 15 Geo., 123. * Jacques v. M. E. Church, 17 Johns., 548 to 585. TRUSTEES OF MARRIED WOMEN, ETC 651 her; and her disposition of it will be sanctioned and enforced by a Court of Equity, without the assent of her trustee, unless that assent be expressly made necessary by the instrument creating the trust. And the specification of any particalar mode of exercising her disposing power, does not deprive her of any other mode of using that right, not ex- pressly or by necessary construction negatived in the devise or deed of settlement." Mr. Justice Cowen also laid down the doctrine, "where the wife's separate estate is completely distinct and independent of her husband, she seems to be regarded in equity, as respects her power to dispose of or charge it with debts, to all intents and purposes as a feme sole, except in so far as she may be expressly limited in her powers by the instrument under which she takes her interest."^ This rule which, in equity, considers a married woman, in respect to her separate estate, and her power to alien and charge it, as a feme sole, has been removed from one class of cases in New York, according to the construction given to their statute > Dyctt V. N. A. Coal Co., 20 Wend., 507, 573; Powell v. Murray, 2 Edw., 636; Wadham v. The Society, 2 Kern., 415; The Albany Ins. Co. v. Bay, 4 Corns., 9; Gibson v. Walker, 20 N. Y. Rep., 479. In New York, since the revised statutes, where real estate is settled to the separate use of a married woman, it is held that neither the estate nor the rents and profits can be charged for any debt or liability created or imposed upon it by her, because it is no longer /teres. Banks, 7 Alab., 34; Van Duzer v. Van Duzer, 6 Paige, 368; Rees v. Waters, 9 Watts, 90; Thomas v. Shepherd, 2 McCord's Ch., 36; Whitesides v. Dorris, 7 Dana, 107; Wiles r. Wiles, 3 Md., 1. 666 TRUSTEES OF MARRIED WOMEN, ETC. equity to a settlement, and suitable provision for the maintenance of herself and children, extends to all her separate real and personal estate, descended or devised, and will prevail, when properly asserted, against the husband or his assignees even, and against any sale made, or lien created by him, even for a valuable consideration or in payment of a just debt ; ^ and this rule rests upon the broad ground that, in a Court of Equity, it is regarded as her estate, which she has a right to have expressly set apart and secured, or such portion thereof as may be necessary, for the permanent support of herself and children.^ But, her equitable right must be asserted directly in the pleadings, it will not be presumed. Its existence depends upon extrinsic circumstances, which must be averred, and if denied, be proved.^ Although the wife may secure, by a settlement, suitable provision for the maintenance of herself and children out of her real and personal estate as against her husband, and those claiming under and through him, yet he cannot be effectually excluded from a participation in the benefits of her estate, except by a limitation of it to her separate use and ^ Cord's Rights of Mar. Women, sec. 155. ' Hays V. Blanks, 7 B. Monr., 348; Haveland v. Bloom, 6 Johns. Ch.R., 181. ^ Cord's Rights of Mar. Women, sec. 157; see Sturgis v. Champneys, 5 My. & Cr., 105; Elder v. Elder, 11 Sim., 569; Hanson v. Keating, 4 Hare, 6; Newenham v. Pemberton. 11 Jur., 1071; Sleighl v. Reed, 18 Barb., 160; Barron v. Barron, 24 Vt., 376; Rorer v. O'Brien, 10 Barr, 212; Moore v. Moore, 14 B. Monr., 259; see also Hill v. Hill, 1 Strob. Eq., 2; Carlton v. Banks, 7 Alab., 35; see Ky. Rev. Stat., 1852, vol. ii., p. 387; Stant. Rev. p. 8, and Smith v. Long, 1 J. P. Metcalf, 487. TRUSTEES OF MARRIED WOMEN, ETC. 667 control. And this limitation may be such as to exclude the whole interest of the husband, as well after the death of the wife as during her lifetime, in her estate ; or it may be such as to exclude his interest only during her life. But the intention to exclude the husband must appear distinctly from the terms of the limitation, or it will not have such an effect.^ No particular form of words is necessary to create a trust for the separate use of a married woman. It is enough if there is a clear and un- equivocal intent to exclude the rights of the hus- band. If it be plain from the language of the instrument, or from all the circumstances disclosed in it, that the intention was to create a separate interest in the wife, such intention will be sustained and carried out.^ But the manifestation of such an intent must be clear and unambiguous, that the * Lamb v. Milnes, 5 Ves., 517; Tyler v. Lake, 4 Sim., 144; S. C, 2 R. & M., 183; Rudisell v. Watson, 2 Dever. Eq., 430; Ashcraft r. Little, 4 Ired. Eq., 236; Hunt et al v. Booth et al, 1 Freem., 215; Williams v. Clai- born, 7 Smedes & Marsh. 488; Carroll r. Lee, 3 Gill. & Johns., 505; Evans and wife v. Knorr, 4 Rawle, 66; Evans v. Gillespie, 1 Swan, 128; Cook v. Kennerley, 12 Alab., 42; Moss v. McCall, 12 Alab., 630; Welch's Heirs v. Welch's Adm'rs, 14 Alab., 76; Mitchel v. Gates, 23 Alab., 438; Pollard v. Merrill, 15 Alab., 170. ^ Stanton v. Hall, 2 R. & M., 180; Tyler v. Lake, ib., 188; Adamson v. Armitage, 19 Ves., 416; ex parte Ray, 1 Mad., 199; Wills v. Sayers, 4 Mad., 409; Pritchard v. Ames, T. &. R., 222; Perry v. Boileau, 10 S. & R., 208; Evans and Wife v. Knorr, 4 Rawle, 66; Rudisell v. Watson, 2 Dever. Eq., 430; Lewis v. Adams, 6 Leigh, 320; Ballard v. Taylor, 4 Desau., 550; Stuart V. Kissam, 2 Barb., 494; West v. West's Ex'ors, 3 Rand., 373; Heatham v. Hall, 3 Ired. Eq., 414; Hamilton i>. Bishop, 8 Yerg.,33; Fears V. Brooks, 12 Geo., 197; Beaufort v. Collier, 6 Humph., 487; Cook v.Ken- neday, 12 Alab., 42; Nixon v. Rose, 12 Gratt.. 425; Clark v. Maguire, 16 Mo., 362. 668 TRUSTEES OF MARRIED WOMEN. ETC. interest is not only to be vested in the wife, but the husband is to be exckided therefrom. Thus, a limitdtion to the ''separate use'' or the '' sole use'* of the wife,^ or where it is to be at " her own dis- posal," ^ or to be enjoyed " independent of the hus- band,"^ have been deemed sufficiently evincive of such an intent to vest the separate estate in \\\q feme. So, likewise, have the follow^ing been held sufficient to create a separate estate : A conveyance to a married woman and her " heirs to have and to hold the same to and for her use, benefit and right, and of the heirs aforesaid without let, hindrance or molesta- tion whatever;'"* or, "for the entire use, benefit, profit and advantage" of the wife;^ or, "to be at her own disposal in true faith ; " ^ or, " for her own and sole use forever;"^ or, "for her own proper use during her life."® So, likewise, a declaration of trust for Mrs. S.: " And that the trustees would account for and pay over to her individually all the money that might be received thereon;"^ or, ' Scarborough v. Borman, 1 Bcav., 34; 4 M. & Cr., 377; Adamson v. Armitage, 19 Vcs., 416; see also Newman v. James. 12 Alab., 29; Collins V. Rudolph, 19 Alab., G16; Good v. Harris, 2 Ired. Eq., 630; Heathraan v. Hall, 3 Ired. Eq., 414; Strong v. Gregory, 19 Alab., 146; Griffith v. Grif- fith, 5 B. Monr., 113. ' Pritchard v. Ames, T. & R., 222; Stanton v. Hall, 2 R. & M., 180; Tyler v. Lake, ib., 188. ' Wagstaff i\ Smith, 9 Ves., 420; Newlands v. Paynter, 4 M. & Cr., 408; Dixon V. Ohnius, 2 Cox, 414; Simmons v. Horwood, 1 Keen., 7. * Newman v. James, 12 Alab., 29. ^ Heathman v. Hall, 3 Ired. Eq., 414. " Bridges v. Wood, 4 Dana, 610. ' Fisher v. Filbut, 6 Barr, 61. * Snyder v. Snyder, 10 Barr, 424. ' Stuart V. Kissam, 2 Barb. S. C, 494. TRUSTEES OF MARRIED WOMEN, ETC. 669 "where the husband should not dispose of it without her consent; "1 or that the estate is for the "liveli- hood" of the wife;' or, that she shall "enjoy and receive" the rents and profits;' or, "for her use and benefit as the trustee may think proper and best, without being subject to her debts and contracts in any way whatsoever, or her husband, or any future husband, only for her support and main- tenance." * A conveyance by a husband to a trustee for the use of his wife, will, necessarily, be for her separate use; otherwise the transaction would be useless.^ So, also, where there is a gift or grant by the hus- band directly to the wife for her use/' Gifts and conveyances in the following terms have been held not to create a separate estate in the wife, thus: "The gift not to extend to any other person;' a devise and bequest to the testator's mar- ried daughter, "all to be for her and her heirs' pro- ' Jones V. Lockhart, 3 Bro. C. C, 383, (n). ''Darleyt;.Darley, 3 Atk.,399; but see Harkins i^. Coalter,2 Port. Alab 476. ' Tyrrell v. Hope, 2 Atk., 5G1 ; Atcherly v. Vernon, 10 Mod., 531; also Williams v. Maul, 20 Alab., 721. * Clarke v. Windham, 12 Alab., 798. * Steele v. Steele, 1 Ired. Eq., 452. * Reed v. Livingston, 3 Johns. Ch., 490; Pinney v. Fellows, 15 Vt., 536; Whitten et al. v. Whitten, 3 Gush., 194; Powell v. Powell, 9 Ilumph., 477; Wells V. Treadwell, 28 Miss., 717. Such grants, however, being void in law, will be upheld by equity no further than is necessary to constitute a just and adequate provision for the wife, due regard being had to the for- tune of the husband. Benedict v. Montgomery, 7 W. & S., 238; Stickney V. Borman, 2 Barr, 67; Shepard v. Shepard, 7 Johns. Ch., 57; Wells v. Treadwell, 28 Miss., 717; Dibble v. Hutton, 1 Day, 51; and see Barron v. Barron, 24 Vt., 375; Herr's Appeal, 5 W. &. S., 494. ' Ashcraft v. Little, 4 Ired. Eq., 236. 670 TRUSTEES OF MARRIED WOMEN, ETC. per use ; "^ in trust for the "use, behoof and benefit of" the testator's daughter for life;'^ in trust to permit the feme covert "to have the use and benefit of the labor and services of the said slaves and all the proceeds thereof during her life, and at her death" to her children;^ " to her, and the heirs of her body, and to them alone."* These, and the like terms, in a conveyance to a feme covert are not deemed sufficiently evincive of an intention to vest the entire interest in the wife, to the exclusion of her husband, to create in her a separate estate. Nor Avill the intervention of a trustee be of itself sufficient to create a separate estate or use ; for pro- perty given by deed or will to a trustee in trust for a married woman, vests an interest in her husband.^ Nor is the intervention of a trustee necessary to the validity of a trust to the separate use of a mar- ried w^oman. For if real or personal property be given to her separate use, her interest will be pro- tected by converting the husband into a trustee.^ ' Rudisell r. Watson, 2 Dever. Eq., 430. » Torbert v. Twining, 1 Yates, 452, * Hale V. Stone, 14 Alab., 803, and Evans v. Knorr. 4 Rawle, 66. * Foster v. Kerr, 4 Rich Eq., 390. • Evans v. Knorr, 4 Rawle, 66; Mayberry v. Neely, 5 Humph., 337; Hunt V. Booth. 1 Freem., 215; Welch's Heirs v. Welch's Adm'r, 14 Alab., 77; Pollard I'. Merrill. 15 Alab., 170. • Boykin and Wife v. Ciples and Wife, 2 Hill's Ch., 200; Baskins r. Giles, Rice's Eq., 316, 324; Shirley v. Shirley, 9 Paige, 364; Freeman v. Freeman, 9 Mo., 772; Clark v. Makenna, Chevcs' Eq., 163; Hamilton v. Bishop. 8 Yerg., 33; Jamison v. Brady, 6 S. & R., 466; Heck v. Clippen- ger, 5 Barr, 385; Fears v. Brooks, 12 Geo., 195; Bennett v. Davis, 2 P. Wms., 316; Darley v. Darley, 3 Atk., 399; Lee v. Prideaux, 3 Bro. C. C, 383; Parker v. Brooks, 9 Yes., 283; Major v. Lansley, 2 R. & M., 355; Rich V. Cockell, 9 Yes., 375; Porter v. Bank of Rutland, 19 Vt., 410; Blanchard v. Blood, 2 Barb. S. C, 352. For the effect which the legisla- TRUSTEES OF MARRIED WOMEN, ETC. 671 And the husband who has charge of his wife's sepa- rate estate comes within the ordinary rule which prevents a trustee from taking advantage from his management of trust property, and he, therefore, cannot traffic therewith, buy incumbrances, or the like, except for her benefit/ However, where it is intended to secure to a mar- ried woman the separate use of an estate, either for life or during coverture, it is the more proper and usual way to do so through the intervention of a trustee. And where there is a limitation to trus- tees to the separate use of a married woman, the courts will strive to adopt the construction which is most for her advantage, by holding it a trust, vesting the legal estate in them, rather than a use executed by the statute in her.^ In New York, under their statute concerning uses and trusts, it has already been seen, that where lands have been conveyed to a trustee to receive the rents and profits, and pay them over to a mar- ried woman for her sole use during her life, that the cestui que trust takes no estate in the lands or in their future income, upon which she can create any lien or charge for any purpose whatever. That, by tion of the State securing to married women their separate property and excluding their husbands, see Haines v. Ellis, 24 Penn. St. R., 253; Noyes V. Blakeman, 3 Sand. S. C, 538; 2 Seld, 567; Smith v. Long, 1 J. P. Motcalf, 487; Sleight v. Reid, 18 Barb., 160. ■ Methodist E. Ch. v. Jacques, 3 Johns. Ch. Rep.. 77; Dickenson d. Cod- wise, 1 Sandf. Ch. Rep., 214; Harley v. Platts. 6 Rich. L. R., 310. 'Hill on Trustees, 407; Harton r. Harton, 7 T. R., 652; Neville v. Saunders, 1 Vern., 415; Bush v. Allen, 5 Mod., 63; Oswell v. Probert, 2 Ves., 680; see also Tidd v. Lister, 5 Mad., 432; Hawkins v. Luscombe, 2 Sw., 391. 672 TRUSTEES OF MARRIED WOMEN, ETC the operation of such statutes, she is secure in the enjoyment of the rents and profits of such estate as they accrue ; but cannot anticipate them, so as to make them the subject of a charge or lien.^ So, likewise, in Kentucky, a radical change has been affected as to the separate estate of married women by their new statutory provisions. Among other things it is enacted that, " if real or personal estate be hereafter conveyed or devised for the separate use of a married woman, or for that of an unmarried woman, to the exclusion of any husband she may hereafter have, she shall not alienate such estate with or without the consent of any husband she may have ; but she may do so when it is a gift, by the consent of the donor or his personal represen- tative. Such estates, heretofore created, shall not be sold or incumbered but by order of a Court of Equity, and only for the purpose of exchange and reinvestment for the same use as that of the origi- nal conveyance or devise, and the court shall see that the exchange is properly made."^ As the act of marriage operates at law, as an absolute gift to the husband, of all the chattels per- sonal of the wife, and likewise gives him the legal right to reduce into his possession her chattels real and choses in action, consequently, if a sum of money or stock be vested in trustees, for a married woman, 'Noyes v. Blakeman, 3 Sand. S. C, 538, and also 2 Seld., 5G7, also Tale V. Dederer, 18 N. Y. Rep., 267; 1 R. S., pp. 728, 729, sec 55, (3d sub.,) 60, 63. " Ky. R. S., ch. 47, sec. 17, p. 395, amended 1856, see Session Acts, 185-5-1856, p. 58; Daniel v. Robinson, 18 B. Monr., 301; Williamson r. Williamson, 18 B. Monr., 386; Stuart v. Wilder, 17 B. Monr., 306. TRUSTEES OF MARRIED WOMEN, ETC. 673 or a bond or other debt be assigned to her, if no suit has been instituted for the administration of the trust, the trustee, obligee or debtor, may pay or transfer the fund to her husband alone, and take his discharge,^ and where the property has been actually reduced into the possession of the husband, or is not a mere right or thing in action, but a complete vested legal estate, the equity of the wife for a set- tlement cannot be enforced.^ But if he receive or hold the property for the benefit of, or in trust for the wife, his possession will not be a bar to her equity to a settlement,^ and the declarations of the husband may be given in evidence, to show in what character the payment was received.^ The general rule is, that no dealing with the fund will amount to a reduction into possession, unless it vests the legal title thereof in the husband. For if the hus- band's interest is such that it must still be enforced by suit in equity, it remains an equitable chose in action, and will survive ; as, where an executor has set apart a sum for the payment of a legacy to a » Murray v. Lord Elibank, 10 Ves., 90; Glaister v. Hewer, 8 Ves., 206. ' Harton v. Ilarton, 7 T. R., 652; Oswell v. Probert, 2 Ves., 680; Carter r. Carter, 14 Sm. &, M.,59; Carlton r. Banks, 7 Alab., 34; Rees r. Waters, 9 Watts, 90; Whitesides v. Dorris, 7 Dana, 107; Wickes v. Clarke, 8 Paige, 161; Thomas v. Sheppard, 2 McCord's Ch.,36; Mitchel v. Sevier, 9 Hump., 146. = Wall V. Tomlinson, 16 Ves., 413; Baker v. Hall, 12 Ves., 497; Barron V. Barron, 24 Vt., 375; Gray's Estate, 1 Barr,329; see also Blount v. Best- land, 5 Ves., 515; Elraes v. Hughs, 3 Desaus., 155; Ross. v. Wharton, 10 Yerg., 190; Wallace v. Talifero, 2 Cal., 376; Mayfield v. Clifton, 3 Stew., 375; Goehenaur's Estate, 23 Penn. St. Rep., 460. Merely joining in a suit with his wife, &c., is not sufficient. Thompson v. Ellsworth, 1 Barb. Ch-, 624; Mason v. McNeil, 23 Alab., 201, 43 674 TRUSTEES OF MARRIED WOMEN, ETC. married woman/ or the fund has been paid into court by the trustee,*^ or has been transferred by the existing trustee to other persons as trustees, for the wife's benefit,^ or by filing bill against the legal holder of the property, for payment or transfer,^ or a decree in a joint suit for their joint benefit,^ will not destroy the wife's right of survivorship. So, likewise, a bond or legacy given to husband and Avife jointly, will survive to the wife.'' This equity of the wife consists in the iiiterest she has in these choses in action, which belonged to her at the time of her marriage, or which have subse- quently become hers, during the continuance of the marriage, and out of which she may have a reason- able and adequate support, if necessary, by properly preferring her claim. The general rule on this sub- ject is, where the property is within the reach of the court, as, if it is vested in trustees, or has been paid into court, or in any other situation which brings it within the control of the court, it will not be permitted to be removed out of that jurisdiction until an adequate provision is made for the wife, unless she has already been sufficiently provided for, or on her personal examination she thinks proper to waive the benefit of this protection, consequently, ' Blount V. Bestland, 5 Yes., 515. ^ Macauley v. Phillips, 4 Ves., 17, 18; but see Re Jenkins, 5 Russ., 183. » Wall V. Tomlinson, IG Ves., 413; Ryland v. Smith, 1 M. &. Cr., 58. « Pierce v. Thornley, 2 Sim., 167, 180. * Forbes v. Pbipps, 1 Eden, 502; Nanney v Martin, 1 Eq. Ca. Abr., 68. * Pike V. Collins, 33 Maine, 43; Ilayward v. Hayward. 20 Pick., 517; Atcheson v. Atcheson,ll Beav.,485; and see Rivers r. Thayer, 7 Rich Eq., 166, and Carson v. O'Bannon, ib., 219. TRUSTEES OF MARRIED "WOMEN, ETC 675 whenever the situation of the property is such that it requires a decree or order of the court to put a party rightfully in possession of the property, the court will not deliver it over, except upon terms of settlement being made for the adequate support of the wife.^ Ordinarilv, it would seem, that where the hus- band or his assignee can obtain the possession of the property to which the wife's equity may attach, without coming into Chancery, this equity will not be enforced.^ But still, equity has asserted the right to restrain the husband or his assignee from taking possession of the wife's property in so great a variety of cases, based upon the peculiar situation and circumstances of the case, that it would seem difficult to fix definite limits to the power which the court would exercise in any case where equity demanded interference. Thus, where the husband has misbehaved, and abandoned or ill-treated his wife, so as to justify a divorce or separation, the court will lay hold of the wife's property in action, and appropriate it to her support, and the support of her children.^ So, also, where the husband is • Howard v. Moffatt. 2 Johns. Ch., 206; Glen v. Fisher, 6 Johns. Ch., 33; Bennett v. Dillingham, 2 Dana, 436; Thomas v. Kennedy, 4 B. Monr., 235; Duvall V. Farmers' Bank, 4 Gill. & J-, 283; Andrews v. Jones, 10 Alab., 401; Myres v. Myres, 1 Bail. Eq., 24; Bell v. Bell, 1 Kelly. 037; Page v. Estes, 19 Pick., 269; Gassett v. Grout, 4 Mete., 486; Davis t;. Newton, 6 Mete., 537. » See Heath v. Heath, 2 Hill's Ch., 100; Udall v. Kenny, 3 Cow., 591 ; Dodd's Trustee v. Geiger's Adm'r, 2 Gratt., 98; The State v. Krebs, 6 Harris & Johns., 31; 1 Leading Cases in Equity, 496. = Haviland v. Myres, 6 Johns. Ch., 25; Van Duzer r. Van Duzer,6 Paige; 865; Rees r. Waters, 9 Watts, 90; Renwick r. Renwick, 10 Paige, 421, Martin v. Martin, 1 Hoff., 462. 676 TRUSTEES OF MARRIED WOMEN, ETC. insolvent, and the wife without means of support, equity will sustain a bill by the wife, through her next friend, against the husband, his assignee or creditors, seeking to get possession of the property at law/ So, also, where the husband is a lunatic, equity will assert and maintain the right of the wife to her equity, and, where there is no commit- tee, order the property to be transferred to an offi- cer of court.- Where the wife is the ward of court, and the marriage has taken place without permis- sion, and a contempt has thereby been commited, the court will restrain the husband and his credi- tors from taking possession of her estate until a proper settlement has been made. But in such cases the settlement usually extends to all kinds of her property, and also to the whole estate.^ How far a Court of Equity will take cognizance of the wife's equity upon her motion, where there is no insolvency, or incapacity, or special miscon- duct on the part of the husband, and sustain an original proceeding by the wife for the enforcement of her claim, seems not yet to be fully determined.'* ' Guild V. Guild, 16 Alab., 122; Van Epps v. Van Deusen, 4 Paige. 65; Martin v. Martin. 1 Hoff., 462; Bell v. Bell, 1 Kelly, 637. "Carter v. Carter, 1 Paige, 463; Kenney ». Udall, 5 Johns. Ch., 464; Rees V. Waters, 9 Watts, 90. *Kenneyf.Udal],5 Johns.Ch.,464, and S.C, 3 Cowen,591; Van Duzer V. Van Duzer, 6 Paige. 366; Chambers v. Perry, 17 Alab., 726. * Lady Elibauk v. Montolieu, 5 Ves., 737; Sturgis v. Champneys, 5 My. &Cr.,10o; Edes v. Edes, 11 Sim., 509; Han.son r. Keating. 4 Hare. 6; Osborn v. Morgan, 9 Hare, 434; Newenham v. Pemberton, 1 DeG. & Sm., 644: For dicta, see Van Epps v. Van Deusen, 4 Paige, 65; Dewall r.Coven- hoven, 5 Paige, 581; Van Duzer v. Van Duzer, 6 Paige, 366; Fry v. Fry, 7 Paige, 461; Martin v. Martin, 1 Hoff., 462; Davis v. Newton, 6 Mete, 537; TRUSTEES OF MARRIED WOMEN, ETC 677 Where the property of the wife is in the hands of trustees, they may refuse to make it over to the husband, or those claiming under him, until some suitable settlement has been made upon the wife ; for, in so doing, they only require what the court would itself require, if a suit were instituted. And where a bill has been filed for settlement upon the wife, the trustees will be precluded from paying over to the husband.^ But where the husband, by a previous settlement, has become the purchaser of his wife's fortune, he will not be required to make any additional settlement upon coming into court to recover her equitable property;^ and it is not essential that the settlement made by the husband on marriage, should be expressed to be made in con- sideration of the wife's fortune, or that it should refer to it even ; for, if the settlement be equivalent, the husband will be held to be the purchaser : for the wife shall not have the jointure and fortune both.^ But the consideration of a settlement will apply prima facie only to the purchase of the wife's then present fortune ; but, if she subsequently become entitled to additional property, the husband will Bell V. Bell, 1 Kelley, 637; see also Parsons v. Parsons, 9 N. H., 309; Wiles r. Wiles, 3 Md. R. 1; Moore v. Moore, 10 B. Monr., 259; Wright v, Arnold, ib., 642. ' Macauley v. Phillips, 4 Ves., 18; Murray v. Lord Elibank, lOVes.,90; see also same case, 1 Leading Cases in Equity, 348; De la Garde v. Lem- priere, 6 Bcav., 344; Crook v. Turpin, 10 B. Monr., 243. "^ Martin v. Martin, 1 Corns , 473; Mitford v. Mitford, 9 Ves., 96; Gar- forth V. Bradley, 2 Ves., 677; Carr v. Taylor, 10 Ves., 579; Druce v. Deni- son, 6 Ves., 395; Adams v. Cole, 2 Atk., 449, n.; Brett v. Forcer, 3 Atk., 405; Lancy v. Duke of Athol, 2 Atk., 448. ' Blois V. Herford, 2 Vern., 502; Sal way v. Sal way, Ambl., G92. 678 TRUSTEES OF MARRIED WOMEN, ETC. not be deemed to have become a purchaser by set- tlement of such additional interest/ unless from the lano-uao-e of the settlement her subsequent acquisi- tionsmaybe deemed to have been included, as, where the settlement is expressed to have been in consid- eration of such fortune as the wife is or may be entitled to, &c.^ And the fact that a wife is living separate from her husband by mutual agreement, will not give her an equity to a settlement out of her future property, where such a provision has already been settled upon her as would have entitled the husband to such future property, had they con- tinued to live together.^ But a voluntary settlement of an adequate provision upon the wife after mar- riage, will not bar the wife's equity." Nor will a settlement made in consideration of a part onhj of her future fortune.^ But such purchase does not bar the wife's right of survivorship, until the hus- band reduces the property to possession. The pur- chase operates merely as a power for him to acquire possession of the fund by taking a transfer from the trustee ; and if he neglects to do so during his lifetime, it will survive to the wife on his death in * Matter of Beresford, 1 Desaus., 263; Barrow v. Barrow, 18 Beav., 529; Carr v. Taylor, 10 Ves., 579; Mitford v. Mitford, 9 Ves., 95; Druce v. Den- ison, 6 Ves., 395; Garforth v. Bradley, 2 Ves., 077. " Garforth v. Bradley, 2 Ves., 677; Mitford v. Mitford, 9 Ves., 9G; Carr V. Taylor, 10 Ves., 579. ' Re Erskine's Trusts, 23 Law J. Ch., 327; 19 Jur., 15G, and 1 Kay &, Johns., 302. * Lanoy v. Duke of Athol, 2 Atk., 448; Dunklcy v. Dunkley, 2 DeG., Mac. & G., 390; Matter of Beresford, 1 Desaus., 263. " Cleland v. Cleland, Pr. Ch., 63; Burdon v. Dean, 2 Ves.. Jr., 607. TRUSTEES OF MARRIED WOMEN, ETC. 679 her lifetime.^ It is now well settled that choses in action, legal and equitable, including legacies and distributive shares of the wife, survive to her on the death of her husband, unless they have been in some manner, constructive or actual, reduced to pos- session in his lifetime.^ It has already been remarked that the wife*s equity will be enforced against all persons claiming under the husband, whether claiming as assignees by operation of law on his bankruptcy, or under some particular disposition or assignment, either made voluntarily or for a valuable consideration ; but an exception, it is claimed, should be made where the wife's equitable interest is for life only^ and against a purchaser for a valuable consideration from the husband, made while he was maintaining the wife, and before circumstances had raised her equity.^ The reason for the distinction is said to be that, both in law and equity the husband is entitled to the receipt of his wife's income from * Rudyard v. Neirim. Pr. Ch., 209; Lister v. Lister. 2 Vern., 68; Mitford V. Mitford, 9 Ves., 96; Salway v. Sahvay, Ambl., 692; Heaton v. Hassell, 4 Vin. Abr., 40. ' See Pike v. Collins, 33 Maine, 43; Hayward v. Hayward, 20 Pick., 517; Parsons v. Parsons, 9 N. H., 309; Schuyler v. Hoyle, 5 Johns. Ch. Rep., 196; Searing v. Searing, 9 Paige, 283; Poor v. Hazleton, 15 N. H., 568; Legg V. Legg, 8 Mass., 99; Stanwood v. Stanwood, 17 Mass., 57; Lodge v. Hamilton, 2 S. & R., 491; Rice v. Thompson, 14 B. Monr., 379; White- hurst V. Barker, 2 Ired. Eq., 292; Terry v. Bronson, 1 Rich. Eq., 78; Picket V. Everett, 11 Mo., 568; Bibb v. McKinley, 9 Port., 636; Sayre v. Flourney, 3 Kelly, 541. ' Vaughn v. Buck, 7 Jur., 338; 13 Sim., 404, and 1 Sim., (N. S.,) 284; Tidd V. Lister, 23 Law Jur. Ch., 249; 2 Spence Eq. Jur., 482; Udall v. Kenney, 8 Cowen, 607; Elliott v. Cordell, 5 Mad., 156; Stanton v. Hall, 2 R. & M., 175; Burdon v. Dean, 2 Ves., Jr., 608; but see Lord Langdale ia Wilkinson v. Charlesworth, 10 Beav., 327. 680 TRUSTEES OF MARRIED WOMEN, ETC property, as a compensation for his liability to maintain her ; and, therefore, he is entitled to the uncontrolled beneficial enjoyment of her life interests unless he desert her, or otherwise fail in the discharge of his duty of maintenance of her. In case of general bankruptcy or insolvency his inability to maintain his wife w^ill already have raised an equity in her favor, when the title of his assignees vests ; which is not the case with a particular assignee, made while the husband is in the discharge of his duty in maintaining his wife,^ But this assignment of the life interest of the wife will be good only during coverture, and will not bind her if she survive.^ It is laid down in many of the American deci- sions that an assignment for value by the husband amounts to a contract, which equity would execute against him by compelling a reduction; and, there- fore, under the rule of treating as done, what ought to be done and is agreed to be done, the court will treat as executed, such an assignment after the husband's death.^ But in answer to this, it is said, the husband has not a property in, but only a naked power over his wife's choses in action, which arises from the blending of persons in the marriage state ; and he cannot transfer to his assignee more than he himself possesses, whichis only the right of reduc- > Carter v. Anderson, 3 Sim., 370; 1 Rop. on Hus. and Wife, 273 ; Elliott V. Cordell, 5 Mad., 156; Stanton v. Hall, 2 R. & M., 182; Vaughn v. Buck, 1 Sim.,N. S.,284. ' StiflFee V. Everett, 1 M. St, Cr., 41. » Siter's Case, 4 Rawle, 461. TRUSTEES OF MARRIED WOMEN, ETC. 681 tion during coverture. Hence, to apply to this case the usual rule in equity in regard to specific perform- ance, would be to convert a limited into an absolute power. Again, the equitable principle referred to is admissible only as between the purchaser and the assignor and his representatives. But the wife does not claim through her husband, but on a dis- tinct title. And, further, a Court of Equity does not, except in peculiar cases, compel specific per- formance of a contract with regard to personal property, but leaves the parties to their remedies at law. And, though the assignment of a chose in action imports in equity an agreement by the assignor to allow his name to be used by the assignee, this could only bind the executor of the husband, not the wife, after his death. Finally, in the case of a chose in action proper, the legal title in the wife must prevail, if the equities are equal ; and undoubtedly the wife has, as owner, an equal equity with the purchaser. Indeed, considering the pecu- liar favor with which femes covert are regarded in a Court of Chancery, and its strongly-marked doctrines with regard to their separate estate, it might well be doubted whether her equity should not be considered superior. With regard to the equitable interests of the wife, the case is still clearer, for equity only recognizes the husband's rights over them, because it is bound to follow the law.^ ' See Wharton's notes in Hill on Trustees, p. 415, Sd Am. ed.; see also Purdew v. Jackson, 1 Russ., 1; Hatchings v. Smith, 9 Sim., 137; Elwin v. Williams, 7 Jur., 338; 12 L. J. Ch., 440; same case under name of Ellison PUbDc ItBRSRY) 682 TRUSTEES OF MARRIED "WOMEN, ETC. In case the husband survive the wife, then he, as her administrator, is absolutely entitled to all her personal estate, though it continue in action and unrecovered at the time of her death/ And, although, he die before the property is reduced to possession, his representatives will be entitled, and not the next of kin of the wife.^ Hence, it follows that an assignment by the husband of his wife's choses in action or equitable interest in personalty, is good against every one except her, surviving ; for it will, of course, be binding on himself and all parties claiming under him.^ It has already been seen that, in equity, a mar- ried woman is considered as a feme sole in respect to her separate property.* That where personal estate is given simply to her separate use, without restrict- ing her power of disposing of it, or prescribing the ». Elwin,13 Sim., 309; Ashby «. Ashby, 1 Coll., 554; Wilkinson r. Charles- worth, 10 Beav., 328; Le Vasseur v. Scranton, 14 Sim., 118; Borton v. Borton, 13 Jur,, 247; 16 Sim.. 552. Contra, Siter's Case, 4 Rawle, 461; Duke of Chandos v. Talbot, 2 P. AYms., 608; Lord Carteret v. Pascal!, 3 P. Wms., 197; Bates v. Dandy, 2 Atk., 207; S. C, 1 Russ., 33, n., and 3 Russ., 72, n.; Wright v. Morley, 11 Ves., 20, 21; Grey v. Kentish, 1 Atk., 280; Hawkins v. Obyn, 2 Atk., 549; Pascall v. Thurston, 2 Bro. P. C, 19; Honor v. Morton, 3 Russ., 68, 69. * Hill on Trustees, 418; Squib v. Wyn, 1 P. Wms., 378; Whitaker v. Whitaker, 6 Johns. Rep., 112; Hunter v. Hallett, 1 Edw. Cb., 388; Hos- kins V. Miller, 2 Dev. R., 360; Lockwood r. Stockholm, 11 Paige. 87; Beggert v. Beggert, 7 Watts, 563; Wilkinson v. Pcrrin, 7 B. Monr., 214; Jackson v. Sublitt, 10 B. Monr., 469; Lowry v. Houston, 3 How. Miss., 394; but see, contra, Curry v. Fulkinson, 14 Ohio, 100; Baldwin v. Carter, 17 Conn., 201; Byrne v. Stuart, 3 Desau., 135. ' Elliott V. Collier, 3 Atk., 526; Humphrey v. Bullen, 1 Atk., 458; Cart ■v. Rees, 1 P. Wms., 381. ' White V. St. Barb, 1 Ves. & B., 405; Rankin v. Bernard, 5 Mad., 32. * Ante, and authorities cited; Hill on Trustees, 421, and notes; Hulme V. Tenant, 1 Bro. C. C, 21; 1 Lead. Ca. Eq., 355, and notes. TRUSTEES OF MARRIED WOMEN, ETC. 683 mode in which that power is to be exercised, she will take the property with an absolute power of alienation. That when real property is limited absolutely to the separate use of a married woman, she can dispose of it only in the manner prescribed by law, unless a power of disposition be expressly reserved to her by the settlement or antenuptial agreement, or other instrument of gift.^ But she may be restrained by the terms of the trust, from alienating or anticipating the income from her sepa- rate estate, during the continuance of coverture.* The prohibition against alienation in such cases, becomes an essential part of the separate estate, and will stand or fall with it.^ But this restraint will operate only during coverture ; after the death of her husband she w^ill be fully competent to dispose of her property notwithstanding the existence of ' Peacock i'. Monk, 2 Ves., 192; Sand, on Uses and Trusts, 380; New- comer V. Ilassard, 4 Ir. Ch. Rep., 274; Harris v. Mott, 14 Beav. 169. The authorities in the United States are divided on certain points. On one hand, the feme covert is held to possess only such power over her sepa- rate estate as is expressly given her, in Pennsylvania, South Carolina Rhode Island, Maryland, Mississippi, Tennessee. On the other hand it is held that she takes her separate property with the right to dispose of it unless that right is prohibited in the gift instrument, in New Jersey Connecticut, Kentucky, Virginia, North Carolina, Alabama, Georgia and Missouri. See ante. In New York, the same doctrine was held until some rec'.'nt decisions under the revised statutes, which limit the power of the wife over her separate real estate, where the trust is to pay over the rents and profits to her for life, to the mere right to receive them as they become due, without any power of sale or charge, etc. See ante. ' Hulme V. Tenant, 1 Bro. C. C, 16; Pybus v. Smith, 3 Bro. C. C, 340 and 1 Ves., 189; Jackson v. Hobhouse, 2 Mer., 487; Freeman v. Flood 16 Geo., 528; but see Ins. Co. v. Bay, 4 Corns., 11; Baker v. Bradley, 25 L. ' J. Ch., 7; Rennie v. Ritchie, 12 Cl. & Fin., 204. ^ Tullett V. Armstrong, 4 M & Cr., 394; Rennie v. Ritchie, 12 Cl. & Fin., 204; Robinson v. Wheelwright, 20 Jur., 32. 684 TRUSTEES OF MARRIED WOMEN, ETC. such restrictive clause.^ In case of a second mar- riage, this restriction will not be extinguished, but only suspended during discoverture, and will reat- tach on her second marriage.^ In the case of Gaffee's trust,^ the property of the wife, by a postnuptial settlement, was vested in trustees, in trust to pay the income " to such person or persons, and for such purposes, as she should appoint; but not so as to dispose of the same by way of anticipation ; and in default of appointment, into her ow^n hands for her separate use, notwithstanding her coverture, inde- pendent of the said Gaffee," her then husband, "who is not to intermeddle therewith ; neither is the same to be subject or liable for his debts, contracts or engagements." No express trust for life was limi- ted to the wife, but an estate for life w^as given to the husband after the decease of the wife ; and after the decease of the survivor, the trust property was limited to the children of the marriage. Lord Chan- cellor Cottenham held that " the clause against anticipation was not confined to the then existing coverture, but extended to a subsequent marriage ;" remarking further, " it is now well settled, that a gift to the separate use without power of anticipa- tion, will operate on all the covertures of a woman unless these provisions are destroyed while she is discovert y * Knight V. Knight, 6 Sim., 121; Tullet v. Armstrong, 4 M. & Cr., 406; Brown v. Pocock, 2 R. & M., 210; Hamersley v. Smith, 4 Whar., 126; • Smith r. Starr, 3 Whar., 62; Harrison v. Brolasky, 20 Penn., 299; see Clark V. Windham. 12 Alab., 800. " Clarke v. Jacques, 1 Beav., 36; see 4 M. 8c Cr., 290; Gafifee's Trust, 6 Hare, 101 ; Roberts v. West, 15 Grec, 123. TRUSTEES OF MARRIED WOMEN, ETC. 685 It is quite clear that a widow during her discov- erture would have the power of absolutely alienating her trust property, notwithstanding a restriction against anticipation during coverture. But it might be a question whether a settlement by her on her second marriage, limiting the property to herself absolutely for her separate use, would remove the previous restriction. Although the separate use and restraints against alienation and anticipation in the case of married women are the mere creatures of equity, imposed for their benefit, yet they cannot be dispensed with by the court, even though the interest of the married woman may require it. Thus, where a testator gave a legacy to a married w^oman on the condition that she should convey to a third person, her interest in certain property of little value, including an estate which was settled to her separate use without power of alienation, it was held, that the condition could not be performed, and hence the legacy must fail.^ But it has been held, that when the restraint against alienation fell within the rule against perpetuities, it was invalid and w^ould be stricken out.^ It is laid down as a rule, that an express negative declaration, or that which is equivalent thereto, is requisite to deprive a married woman of her prima facie right of disposing of her separate estate.^ Thus, where the trust was to pay the income to such per- sons and for such purposes as the wife should, by • Robinson v. Wheelwright, 20 Jur., 32. ' Fry V. Capper, Kay, 163. ' 2 Rop. Hus. and Wife, 236, 2i0;. Hill on Trustees, 422. C86 TRUSTEES OF MARRIED WOMEN, ETC. any writing under hand, except in any mode of antici- pation, appoint, and in default of such appointment, into her hands, it was held that the words were suf- ficient to restrict the wife from anticipation/ And if the intention to restrain the power of alienation be clearly collected from the several clauses of the will, they will all be construed together, and effect will be given to the general intention.^ And this restraint upon anticipation will also effectually pre- vent a married woman from charging her separate estate w^th the payment of her debts.^ Where the absolute beneficial interest in a trust is given for the separate use of a feme, without any restriction as to the mode of possession or enjoy- ment, she may require an immediate transfer of the leiral interest to herself from the trustee, Avhether she was unmarried at the time the trust was created or not,* and she may compel them by bill, if they refuse ; but, in any suit instituted respecting her separate estate, her husband must be joined as de- fendant.^ It follows, also, that in such disposition of her separate estate, the concurrence of her trus- * Moore v. Moore, 1 Col., 54. " Baggett V. Meux, 1 Col., 138, and 1 Phill.. 627; Fears v. Brooks, 12 Geo., 200; Freeman v. Flood, 16 Geo., 528; Harrop v. Heaward, -3 Hare, 624. ' Harnett v. McDougall, 8 Beav., 188; see also Noyes v. Blakeman. 2 Seld., (6 N. Y.,) Rep., 581; Yale v. Dederer. 18 N. Y. Rep., 267; but see remarks in Clarke v. Windham, 12 Alab., 800. * Thornley v. Yates, 1 N. C. C, 438. ' Bradley v. Emerson, 7 Vert., 369; Clarkson v. De Peyster. 3 Paige, 836; Dewall v. Covenhoven, 5 Paige, 581; Grant v. Van Sclioonboven, 9 Paige, 225; Stuart v. Kissam, 2 Barb. S. C, 493; Sberman v. Burnhara 6 Barb. S. C, 403; Wilson v. Wilson, 6 Ired. Eq., 236; Hill on Trustees, 424. TRUSTEES OF MARRIED WOMEN, ETC. 687 tees will not be necessary, unless made so, by the terms of the settlement or gift instrument ; ^ and although the trustees may have given notice that they w^ould not concur in such disposition, yet they will be compelled to give legal effect to it, upon bill filed for that purpose.'^ In the case of Essex v. Atkins,^ Sir William Grant said, "If the transac- tion cannot be impeached upon its own merits, I do not see how any declaration by the trustee can ren- der it null and void. Notwithstanding Lord Ross- lyn's doubt, the established doctrine is, that a mar- ried woman can bind her separate property without the trustees, unless their assent is rendered neces- sary by the instrument giving her the property. Their dissent cannot have any effect, where their assent is not necessary." And it will make no difference if the transaction is entirely for the bene- fit of her husband.^ However disinclined a Court of Equity may feel to give effect to the improvident engagement of a wife for the accommodation of her husband, still it cannot refuse to do so, when, with full knowledge of the nature and extent of the transaction, and laboring under no undue influence, she has freely made an actual disposition of her ' Coryell v. Dunton, 7 Barr, 532; Essex v. Atkins, 14 Ves., 542; Grigby V. Cox, 1 Ves., 518; Wagstaff d. Smith, 9 Ves., 520. ^ Essex V. Atkins, 14 Ves., 542; see also Wagstaff v. Smith, 9 Ves., 520. ' Stamford v. Marshall, 2 Atk., 69; Parkes v. White, 11 Ves., 209; Essex V. Atkins, 14 Ves., 542; Hughes v. Wells, 9 Hare, 749; Dallam v. Wam- pole, 1 Pet. Cir. Ct., Ill; Jaques v. Methodist Church, 17 Johns. Rep., 548; Whitall v. Clark, 2 Edw. Ch., 149; Cruger v. Cruger, 5 Barb. S. C, 225; Hoover v. Samaritan, 4 Wheat., 445; Meriam v. Harsou, 2 Barb.Ch.j 232. 688 TRUSTEES OF MARRIED WOMEN, ETC separate estate for her husband's benefit/ But where a wife mortgages or pledges her separate estate for her husband's debts, she is entitled to all the rights of a surety, and to exoneration out of his estate." If she permit him to use her sepa- rate estate, he will not be liable for interest, unless there is an agreement to that effect, expressed or implied from the mode of dealing.^ The accumu- lations or savings of the separate estate, or purchases made with them, belong to the wife, and are subject to the same rules as the principal.* Where there is a separate use of personal estate given for life, there being no limitation in default of appointment, and the wife dies without disposing of it, the husband will be entitled to it absolutely, and the trust will be at an end.^ ' Essex V. Atkins. U Ves., 546; Dallam v. Wampole, 1 Pet. Cir. Ct., 116; Nedby v. Nedby, 5 DeG. & S., 377; Jaques v. Methodist Church, 17 Johns. R., 548; Cruger v. Cruger, 5 Barb. S. C, 225; Wagstaff r. Smith, 9 Ves., 520; Parkes v. White, 11 Ves., 209. " Speidlo V. Weishlee, 16 Penn. St. Rep., 134; Neimcewicz v. Gahn, 3 Paige, 614; Knight v. Whitehead, 26 Miss., 24G; Hudson v. Carmichael, 23 L. J. Ch., 893. ' Roach V. Bennett, 24 Miss., 98. * Messenger r. Clark, 5 Exch. Rep., 388; Bird v. Peagrum, 13 C. B., 639; Gore v. Knight, 2 Vern., 535; Churchill v. Dibbin, 9 Sim., 447; Moloney v. Kennedy, 10 Sim., 254; Darkin v. Darkin, 23 L. J. Ch., 890; Merritt v. Lyon, 3 Barb. S. C, 110; Hoot v. Sorrell, 11 Alab., 386; Kee ». Vosser, 2 Ired. Eq., 553; Barron «. Barron, 24 Vert., 375; Yardly r. Raub, 5 "UTiart., 123; Young v. Jones, 9 Humph., 551. * Molony v. Kennedy, 10 Sim., 254; Johnston v. Lumb, 15 Sim., 308; Proudley u. Fielder, 2 My. & K., 57; Stewart v. Stewart, 7 Johns. Ch., 229; McKennan v. Phillips, 6 Whart., 576; Brown v. Brown, 6 Humph., 127; Rogers v. White, 1 Sneed, 69; Cox v. Coleman, 13 B. Monr., 453; BrowTi V. Alden, 14 B. Monr., 141; Farie's Appeal, 23 Penn. St. Rep., 29; also in New York, under the married women's acts of 1848 and 1849, see McCosker v. Golden, 1 Brad. Sur. Rep., 64. TRUSTEES OF MARRIED WOMEN. ETC. 689 When a married woman is living with her hus- band, and permits him, without objection on her part, to receive the income of her separate estate, or to appropriate any annual payments directed to be made to her, it will be presumed that this was done by her consent; and that which is thus re- ceived becomes absolutely his, and he is not answer- able to her or her representatives for it.^ It follows, therefore, that a trustee making such payments, or by whom they were sanctioned, will not be held responsible. The safe w^ay for the trustee, however, would be, to require the assent of the wife, although the court have sanctioned such payments where the wife was non compos, and therefore incapable of giv- ing either her assent or dissent from such payments.*^ But where the income was laid out in furniture under the express understanding that it was to be kept separate, or that the goods and furniture were to be taken in the name of the wife, it cannot be taken as the property of the husband:^ but other- wise, if taken in the name of the husband, and mingled with his goods or furniture,* So, likewise, it is held, that under the "Married Woman's Act" of many of the States, the earnings or savings of ' Smith V. Camelford, 2 Ves., 698; Aston v. Aston, 1 Ves., 167; Parkes V. White, 11 Ves., 225; Peacock v. Monk, 2 Ves., 190; Squire v. Dean, 4 Bro. C. C, 326; M. Ch. v. Jaques, 3 J. C R., 77; McGlinsey's Appeal, 14 S. & R., 64; Miller v. Williamson, 5 Md. R., 219; Moore v. Furgeson, 2 Mumf.,421. ' Howard v. Digby, 8 Bligh N. P., 224; but see Nettleship v. Nettleship, 10 Sim., 236, and likewise remarks on this case in Sugden's Law of Pro- perty, 165. ' Taggart v. Talcott, 2 Edw. Ch., 628; Shirley v. Shirley, 9 Paige, 363. * McGlinsey's Appeal, 14 S. 8t R., 64; Shirley r. Shirley, 9 Paige, 363. 44 690 TRUSTEES OF MARRIED WOMEN, ETC. the wife, not out of her separate estate, belong to the husband, etc/ Where the husband has been permitted to receive the income of the separate estate of his wife, during his life, without objection or interference, the accumulations from that source will belong to him absolutely, and at his death, will go to his personal representatives : ^ this arises from the presumption that the fund was placed by her at his absolute disposal. This right of the husband to receive the income of his wife's separate estate, rests solely on her assent, expressed or implied, and where such assent does not expressly exist, or can- not be properly implied, the trustee would not be justified in making payments to him.^ It was held by Lord Cottenham, in the case of Massey v. Parker,* where property was given or settled to the separate use of a woman who was un- married at the time, that it would vest, on her mar- riage, in her husband, absolutely in his marital right ; and this doctrine has been followed in a few cases, in America.'* But in England it is now well settled that a trust for a woman's separate use may be effec- tually created, although she be unmarried at the time, and no particular marriage is in contempla- tion: and if she marry at any time afterwards the *■ Raybold v. Raybold, 20 Penn., 308; Henderson v. Warmack, 27 Miss., 830; Merritt v. Smith, 37 Maine, 394. » Lord Beresford v. Archb. of Armagh, 13 L. J., N. S., Ch., 235, and 8 Jur., 262, and 13 Sim., 643; Canton v. Ridout. 1 Mac. & G.. 519. * Bagot V. Bagot, 10 L. J., N. S., Ch., 116; Thrupp v. Harman, 2 M. 8c K., 616; Aston v. Aston, 1 Ves., 267; Ridout v. Lewis, 1 Atk., 269. « 2 M. & K., 174; Haraersley v. Smith, 4 Whart.,126; Lindsey v. Harri- son, 3 Eng., (Ark.,) Rep., 311. TRUSTEES OF MARRIED WOMEN, ETC. 691 trust will immediately attach upon the property so as to exclude the husband's title, although no fur- ther settlement be executed/ and the same doctrine is well settled in this country .'^ Deeds of separation between husband and wife, in which a separate maintenance is provided for the wife, are to a limited extent valid, and will be en- forced in equity. "The law on this subject has been considerably modified in England, by the case of Wilson V. Wilson,^' where it was held that the Court of Chancery, in the exercise of its ordinary jurisdiction, can decree specific performance of arti- cles of separation between husband and wife, so far as they regard an arrangement of property agreed upon. In this case, the husband, in order to stop proceedings in the ecclesiastical court, for nullity of marriage, entered into articles of separation. The wife subsequently applied by bill for execution of a deed carrying the articles into effect, which was decreed, and the husband was restrained by injunc- tion from further proceedings in the Ecclesiastical Court, to compel his wife to continue the suit. It seems that the wife w^ould also have been restrained had it been necessary. This case appears to cover the whole ground, and to authorize the interference of equity in all cases, and not merely in the enforce- * Tollett V. Armstrong, 1 Beav., 1, and 4 M. & Cr., 390; Scarborough v. Bowman, 1 Beav., 34, and 4 M. & Cr., 377; Anderson v. Anderson, 2 M. & R., 427. ' Nix V. Bradley, 6 Ruh. Eq., 43; Fears v. Brooks, 12 Geo., 197; Robert V. West, 15 Geo., 123; Fellows v. Tann, 9 Alab., 1003; Beaufort v. Collier, 6 Humph., 487; Shirley v. Shirley. 9 Paige, 363. ' 1 House of Lords Cases, 538, affirming S- C, 14 Sim., 405. 692 TRUSTEES OF MARRIED WOMEN, ETC. ment of the separate provisions. Accordingly, where a husband entered into a deed of separation in which he covenanted that he would permit his wife to live separate from him, and would not molest her, nor visit her, without her consent, an injunc- tion was granted, to restrain him from breaking the covenant, and the terms of the injunction are very stringent."^ In the United States, equity will not decree the specific performance of such articles, though where executed, it will enforce the collate- ral engagements with the trustees, the same as in England.'^ In case of a deed of separation between husband and wife, it is deemed necessary that there should be a trustee for the wife in order to give validity to any provisions for her separate maintenance. In the case of St. John v. St. John,^ Lord Eldon, C, remarked : " Upon this particular case, the ques- tions are, 1st. Are these deeds good at law? — deeds of separation executed by husband and w^ife ; 2d. * Saunders v. Rodway, 16 Jur., 1005; see also Green v. Green, 5 Ilare, 400, note, and Wilson v. Wilson, 5 II. Lords Ca., 40; 23 L. J. Ch. 697; Hill on Trustees, 426, note (1). * Bettle V. Wilson, 14 Ohio, 257; 2 Kent's Com., 176, n.; Champlin v. Champlin, 11 Hoff. Ch., 55; Mansfield v. Mansfield, Wright, O., 284; Ilut- ton V. Duay, 3 Barr, 100; Simpson v. Simpson, 4 Dana, 140; Sterling v. Sterling, 12 Geo., 201; McCrocklin v. McCrocklin, 2 B. Monr., 870; Mer- cein V. The People, 25 Wend., 77; Reed v. Beazlcy, 1 Blackf., 97; Rogers V. Rogers, 4 Paige; Carter v. Carter, 14 Sme. & M., 69: English autho- rities on same points. Lord St. John v. Lady St. John, 11 Ves., 526; Cook V. Wiggins, 10 Ves., 191; Guth v. Guth, 3 Bro. C. C.,614; Wilson r. Wil- son, 14 Sim., 405, and 1 H. Lords Ca., 538; Elworthy v. Bird, 2 S. & St., 372; Frampton v. Frampton, 4 Bcav., 287; Seeling v. Crawley, 2 Vern., 386. ' St. John V. St. John, 11 Ves., 531. TRUSTEES OF MARRIED WOMEN, ETC. 693 Are they to be enforced in equity?; 3d. If not good at law, are they to be delivered up in equity ? If good at law, I see no reason at present to say they are not good in equity. But, as against the wife, it is impossible either in law or equity to hold them good : for she cannot execute any deed. I frequently asked Mr. Justice Butler, who found it difficult to answer that, how, if she was in the same situation of feme sole, she got into that situation. It is admitted that, until separated, she cannot form or make herself liable to any contract ; yet is asserted that it is competent to her, before she is in that state, to remove herself by contract out of the state in which she is, into that in which she will, for the first time, become capable of making a contract. The question has never been put upon the contract of the husband and wife, but upon the contract between the husband and the trustee, from the covenant of the trustee to indemnify the husband against her debts, the existence of which covenant ought to have reminded the court that those who framed these instruments had no idea the wife her- self was bound." In the case of Legard v. Johnson,^ Lord Chan- cellor Loughborough said, " The first is a general question, taking it in the largest extent, is a suit in equity competent to give effect, by the aid of this court, to a deed of separation between husband and ' Legard v. Johnson, 3 Ves., 358, 359; Whorewood v. Whorewood, 1 Rep. Ch., 118, and 1 Ch. Cas., 250; see 1 Fonb. Tr. Eq., 94, 96; Mildmay V. Mildmay, 1 Vern., 53; 2 Ch. Cas., 102; Hincks v. Nelthorp, 1 Vern., 201; Head v. Head, 3 Atk., 295, 547; Seeling v. Crawley, 2 Vera., 385. 694 TRUSTEES OF MARRIED WOMEN, ETC. wife. To state the case as a general question fairly, I must suppose articles of separation from discord- ant tempers, without reproach on the one side or the other. Can I, under .such circumstances, find a case to entitle the wife to a personal decree against the husband. I cannot state the transaction to be higher, in point of law, than a personal contract stante matrimonio between the husband and wife ; but I must go further, I must consider that contract a separation, by which they exclude and exonerate one another, as far as they can, from the rights and duties arising from matrimony. But the common law will not entertain a suit upon contract by a wife against her husband. Such a contract is incapable at law of producing any action. The Ecclesiastical Court, according to the jurisdiction of this country, has exclusive cognizance of the rights and duties arising from the state of marriage. Therefore, I am completely at loss to discover an equity to con- trol the common law and admit a suit between hus- band and wife upon a personal contract, and supersede the exclusive jurisdiction of the Ecclesi- astical Court by entering into the consideration of it. In looking through the cases from the time the reports commenced to be tolerably accurate, soon after the restoration, when the jurisdictions were again established, I find that not an idea of that kind was entertained in that famous case of Whorewood V. Whore wood, in any account of it. Soon after the civil war there had been a decree by the Lords Commissioners. There being no Ecclesiastical Court, the jurisdiction some w ay or other got here. TRUSTEES OF MARRIED WOMEN, ETC. 695 After the restoration, when the jurisdictions were established again, the decree of the Commissioners was to be reviewed. Lord Clarendon was assisted, and after great discussion, it ended in throwing the case back for the decision of the competent juris- diction. The next case is Mildmay v. Mildmay, soon afterwards. Lord Nottingham would not entertain any jurisdiction upon a contract between husband and wife. In Hinks v. Nelthorp, a de- murrer was put into the discovery upon the ground that it was not a matter properly examinable or relievable in this court, and the demurrer was allowed, and the jurisdiction disaffirmed. In the opinion Lord Hardwick gave in Head v. Head, there is the same opinion of the defect of jurisdiction in the general case in this court, and he observed that where the court had interfered they had very unwillingly acted at all. Those cases to which he alludes where the court had acted, stand under three heads : where a third party had intervened, and it was not between husband and wife only. A third party binding himself to indemnify the husband against the debts of his wife, the interest of that party raises a consideration for that party, between whom and the husband there might be a contract, and with regard to whom, he might bind that party to himself. That was the case of Seeling v. Craw- ley. The circumstances there were a little favor- able. The third party was father to the wife. He bound himself to indemnify the husband." Such is the ground upon which the intervention of a trustee has been deemed essential to give 696 TRUSTEES OF MARRIED WOMEN, ETC. validity to any provisions for the separate mainte- nance of the wife ; and it has been generally ruled in the United States that the intervention of a trustee is necessary to validate deeds of separation/ But courts have not always adhered rigidly to this doctrine. There are cases where the intervention of a trustee has been dispensed with.^ But to put all these doubtful questions at rest, it is the more convenient and proper way in deeds of separation between husband and wdfe to interpose a trustee on the part of the wife, who, in consider- ation of the separate provision, should covenant to •indemnify the husband against the debts, &c., of the wife, and thus create a valuable consideration which will support the transaction against even the creditors of the husband, and enable the wife, through her trustee, to enforce the undertakings of the husband.^ Where property is vested by a separation deed in trustees for the benefit of the wife, she takes it subject to all the disabilities of coverture, and will have no powder to dispose of it or otherwise charge it by her contract. In the case of Heyde v. Price,* » Carter v. Carter, 14 Smedes & Mar.. 59; Tourney v. Sinclair, 3 How. Miss., 324; Watkins v. Watkins, 7 Terg., 283; Carson v. Murray, 3 Paige, 483; Battle v. Wilson, 14 Ohio, 257; see 2 Kent's Cora., 176, and notes. « More V. Ellis, Bunb., 205; Guth v. Guth, 3 Bro. C C, 614; Frampton V. Frampton, 4 Beav.,29J; Button r.Duey, 3 Barr, 100; Barron r. Barron, 24 Vt.. 375; see Picket v. Johns, 1 Dev. Eq., 123, and Bowers v. Clark, Phil. Rep., 561. » Stevens i-. Olive, 2 Bro. C. C, 90; St. John v. St. John, 11 Ves., .526; Worrall v. Jacob, 3 Mer., 2.56, 270; Elworthy v. Bird, 2 S. & St., 381; Jee t>. Thurlow, 2 B. & Cr., 553; Copis v. Middleton, 2 Mad., 430; Nunn v. Wilsmore, 8 T. Rep., 528; Hobbs v. Hull, 1 Cox, 446. * Hyde v. Price, 3 Ves., 442. LIABILITY OF TRUSTEES FOR COSTS. 697 the Master of the Rolls said, "the question is, whether this woman can alienate the property appropriated and destined by her husband for her separate maintenance. It is contended that, in a Court of Equity, this deed leaves it in her power to dispose of the property as she pleases, and leave herself without maintenance, and to leave her hus- band and her trustee responsible for her mainte- nance. It is contended that, though the husband is compellable by law to maintain his wife, as every husband is, he cannot appropriate a sum of money for her maintenance without putting it in her power to alienate it, and divert it from the purpose to which he appropriated it. But such was clearly not the intention of the husband, and a deed of separation did not in any sense make the wife a feme sole, therefore she had no power over the pro- perty to dispose of it. She had only a special trust upon it. Section VI. LIABILITY OP TRUSTEES FOR COSTS. Whether trustees are to be charged with costs in any given case, is a question peculiarly within the discretion of the court, which will be governed by the particular circumstances of each case. If the suit is between trustees and strangers to the trust, the liability to costs will ordinarily be governed by the general rule which throws the costs of suit upon the unsuccessful party. Hence, if a trustee who succeeds in a suit is entitled to costs from his adver- 698 LIABILITY OF TRUSTEES FOR COSTS. sary, so, if he fail in his suit, he must pay costs/ In England, prior to the statute 3 and 4 Wm. 4, chap. 42, at law executors and administrators, were not liable to costs when plaintiffs, upon a nonsuit or verdict, where the action was brought upon a contract entered into by the testator or intestate, or for a wrong done in his lifetime.*^ But by such statute it is provided, that " in every action brought by any executor or administrator in right of the testator or intestate, such executor or administrator shall, unless the court in which such action is brought, or a Judge of any of the said Superior Courts shall otherwise order, be liable to pay costs to the defend- ant in case of being non-suited, or a verdict passing against the plaintiff, and in all other cases in which he would be liable if such plaintiff were suing in his own right upon a cause of action accruing to himself; and the defendant shall have judgment for such costs, and they shall be recovered in like man- ner."^' In the construction of this statute, it has been held that the act has put executors and administra- tors, when plaintiffs, on the same footing as other plaintiffs, as to their liability for costs, unless where the court sees that they have been misled b}'- some misconduct on the part of the defendant. There- ' Hill on Trustees, 551; but see 2 Williams' Ex'ors, 1718; but see, conira, Justices n. Haygood, 20 Geo., 847; Williams v. Mattocks, 3 Vt., 189; Rosevelt v. Ellethorp, 10 Paige, 415. ' 2 W^illiam's Ex'ors, 1718; Jones v. Williams, 6 M. & S., 178; Barnard V. Iligdon, 3 B. & A., 213; S. C, 1 Chit. Rep., 628; Woolley v. Sloper, 9 Bing., 754. ' Stat. 3 and 4 William IV., chap. 42, sec. 31. LIABILITY OF TRUSTEES FOR COSTS. 699 fore, it is not a sufficient claim for relief, that the action was brought bona fide, with apparently rea- sonable grounds for suing, and that plaintiff was taken by surprise by the defence.' When executors or administrators are defendants, the costs follow the ordinary rule, and they will become personally liable when there are no assets.^ In New York the common law rule has been ex- tended by statute. It is provided^* that "in all actions and proceedings in which the plaintiff would be entitled to costs upon a judgment rendered in his favor, if, after the appearance of the defendant, such plaintiff be non-suited, discontinue his suit, be non- prossed, or judgment pass against him on verdict, demurrer or otherwise ; or in case a plaintiff recov- ers judgment, but not a sufficient sum to entitle him to any costs ; the defendant shall have judgment to recover against such plaintiff the full costs of the court in which the action shall be, which shall have the like effect as all other judgments. But such provision shall not extend to give a defendant costs against executors or administrators, necessarily prosecuting in the right of their testator or intes- tate, unless upon special application, the court shall award costs against them for wantonly bringing any » 2 Williams' Ex'ors, 1719, and authorities cited; see also Redmayne v. Moon, 36 Eng. L. & Eq. Rep., 124. ^ Jamison V. Lindsay, 1 Bail., (S. C.,) Rep., 79; Buckels v. Carter, 6 Rich, 106; Hanson v. Jacks, 22 Alab., 549; Farrier v. Cairnes, 5 Ohio, 4-5; Capperton v. Callison, 1 J. J. Marsh, 396; Harrison v. Warner, 1 Blackf., 385; Ketchum v. Ketchiim, 4 Cowen. 87. ' 2 R. S., 615, sec. 16, 17; see Finlcy v. Jones, 6 Barb. S. C, 229; see also in Georgia, Justices v. Ilaygood, 20 Geo., 847. 700 LIABILITY OF TRUSTEES FOR COSTS. suit, or for unnecessarily suffering a non-suit, or non- pros, or for bad faith in bringing or conducting the cause." So, also, in equity, the rule is to allow executors and trustees their costs in actions with strangers, where they have acted in good faith,^ though otherwise when the suit is groundless and vexatious. The same is also held to be the law in Vermont,^ in Kentucky,^ and formerly in Virginia.'* In Alabama, it is held that a guardian needlessly bringing suit is liable for costs, but not otherwise.^ Where the executor comes into equity to aid his defence at law, the rule has been held to be different from that which allows them their costs in equity.^ In New Hampshire, where executors brought an action, alleging themselves to be seised of real estate of the deceased as executors, and that the tenant dis- seised them, it was held that judgment against them for costs was properly rendered de bonis propriis? * Moses V. Murgatroyd, 1 Johns. Ch. Rep., 473; Arnoux v. Steinbrenner, 1 Paige, 82; Rosevelt v. Ellithorp, 10 Paige, 415; Dyer v. Potter, 2 Johns. Ch. Rep., 152. ' Williams v. Mattocks, 3 Vt., 189. » Beauchamp v. Davis, 3 Bibb.. 711; Garner v. Strode, 5 Litt., 314. * Long V. Israel, 9 Leigh, 556. But the rule has been changed by statute, and executors are made liable. 2 Lomax Ex'ors, 38. * Alexander v. Alexander, 5 Alab., 517; Savage v. Dickinson, 16 Alab., 260; see also Reynolds v. Carter, 82 Alab., 444. " Bougton V. Phillips, 6 Paige, 334; Williams v. Harden, 1 Barb. Ch., 298; Manny v. Phillips, 1 Paige, 472; ex parte Croxton, 5 DeG. & Sm., 432; Mumper's Appeal, 3 W. & S., 443; Gage r. Rogers, 1 Strob. Eq., 370; Capehart v. Huey, 1 Hill's Eq., 405; Governeur v. Titus, 1 Edw. Ch., 477; Knox v. Pickett, 4 Desau., 92; Delafield r. Coldon, 1 Paige, 139; Collins V. Hoxie, 9 Paige, 81; Day v. Day, 2 Green's Ch., 549; Miles v. Bacon, 4 J. J. Marsh, 468; Peyton v. McDowell, 3 Dana, 314; Marton d. Barrett, 22 Maine, 257. ^ Moulton V. Wendell, 37 N. H., 406. LIABILITY OF TRUSTEES FOR COSTS. 701 In California executors and administrators are individually responsible for costs recovered against them in every case : but by statute, they are to be allowed them in their accounts, except when it appears that the action has been prosecuted or resisted without just cause.^ In Alabama, where it is provided by statute that a creditor of the estate, who does not present his claim to the executors or administrators, &c., shall not recover costs in an action on the same, it is held that the defendant, executor, or administrator, who intends raising that question of presentation on trial, must present it upon the record by plea or suggestion, that the plaintiff may have an oppor- tunity of proving it, and that such issue must be tried by a jury : and that in case no such plea or suggestion is made, and the plaintiff has a general verdict on the issue joined, he is entitled to full costs against the defendants.^ In North Carolina, in suits against executors and administrators for the settlement of estates and the payment of legacies, it is usual to direct the costs to be paid out of the administration fund, yet, where the estate is small, and the executor has made the costs by relying on an unreasonable objection, he will be decreed to pay them personally.^ In South Carolina, where an executor or admin- ^ Hicox V. Graham, 6 Cal., 167. " Wallace v. Nelson, 28 Alab., 282; see similar provision in New York, 2 R. S., 90, sec. 41; Potter v. Entz, 5 Wend., 74; Belden v. Knowlton, 3 Sand., 758; McCann v. Bradley, 15 How. Pr. Rep., 79; but see Lemen v Wood, 16 ib., 285. ' Benick v. Bowman, 3 Jones Eq., 314. 702 LIABILITY OF TRUSTEES FOR COSTS. istrator brings an action in which he need not name himself in his representative character, and he fails in such action, he is to pay the costs.' Where trustees are necessarily made parties to suits, either as plaintiffs or defendants, from the office they hold as trustees, or from their interest in the trust property, they will be entitled to their costs, unless Eruiltv of some act of omission or com- mission, which has induced the necessity, or in- creased the amount of costs; which will be deter- mined by the discretion of the court .- In suits between trustees and cestuis que trust, where there is a fund under the control of the court, it is a general rule, that trustees shall have their costs, as a matter of course, out of that fund, unless they have forfeited that righi by misconduct.^ But where a suit is occasioned solely by the misconduct or neglect of the trustee, the general rule is that the decree against him will be made with costs, to be paid by him personally,* and it will make no difference whether the trustees are a corporation or private individuals.^ Fraud is looked upon with * Carter v. Estes, 11 Rich. Law, 363. ' Barlle r. Wilkin, 8 Sim., 238; Brown v. Lockhart, 10 Sim., 426; Grey- ton r. Shane, 7 Dana, 498; Hicks v. Wrench, 6 Madd., 93; Bennett v. Bid- dies, 10 Jur., 534; Atcheson v. Robertson, 4 Rich. Eq., 44; Pell r. Ball, Spears' Eq , 48. ' Att. Gen. v. City of London, 1 Yes., Jr., 246; Taylorr. Glanville, 3 Mad., 176; Curties v. Candler, 6 Madd., 123; Coventry v. Coventry, 1 Keen, 758. * See 3 Dan. Ch. Pr., 51, et seq ; Fell v. Luthdwidge, Barn., 319; Caffrey V. Derby, 6 Ves., 497; Tebbs v. Carpenter, 1 Madd., 308; Crackett v. Be- thune, IJ. & W.. 589. * Att'y Gen. v. Caius College, 2 Keen, 169; Att'y G^en. v. Christ's Hos- pital, 4 Beav., 73; Att'y Gen. r. Drapers' Co., 4 Beav., 67; Borough of Hertford v. Poor of Hertford, 2 Bro. P. C, 377. LIABILITY OF TRUSTEES FOR COSTS. 703 such odium in a Court of Equity, that it may be laid down as an axiom of equitable law, that wherever a case of fraudulent dealing is established against a trustee, the costs will follow against him as a mat- ter of course.^ Thus, where an executor and trus- tee procured a cestui que trust to execute a release of a legacy without any consideration, and upon false suggestions, the release was set aside and the trustee ordered to pay the costs of suit.^ So, also, where a trustee for the sale of estates, took undue advan- tage of the confidence reposed in him, in order to purchase them himself, at an under value, and subse- quently re-sold them at a considerable profit, he was decreed to account for the profits, and pay costs, etc.^ Upon the same principle, where a trustee having a personal interest in the trust estate, filed a bill bringing the cestuis que trust before the court for the purpose merely of having a point relating to his own interest determined at the expense of the trust, he was decreed to pay the whole costs of the suit for such improper conduct.* So, also, where trustees are guilty of a breach of trust, in general, they will be required to pay the costs of suit to repair such breach, however inno- cent may have been their intentions ; ^ and where 'Hill on Trustees, 558; Hardwick v. Vernon, 14Ves.,504; Aylifft*. Murray, 2 Atk., 61. * Horsely v. Chaloner, 2 Ves., 83, and in Supplement by Bell, 281. » Fox V. Mackreth, 2 Bro. C C, 400, 406; Whichcote v. Lawrence, S Ves., 740; Saunderson v. Walker, 13 Ves., 601. * Hinley v. Phillips, 2 Atk., 48. * Byrne v. Norcott, 13 Beav., 336, and Drosier v. Brereton, 15 Beav., 221 ; East v. Ryal, 2 P. Wms., 284. LIABILITY OF TRUSTEES FOR COSTS. a decree is rendered against them, because they have neglected to sue for and recover a debt due the trust estate, in consequence of which the debt was lost, the costs of suit were given against them as a matter of course, although there was no corrup- tion/ Where trustees have made an improper invest- ment of the trust fund, by placing it out on personal security, or in any other manner not authorized by the practice of the court, or by the terms of the trust instrument, they will be liable to replace the fund with costs.^ So, also, where trustees unneces- sarily retain balances in their hands without making proper investments,^ or where they refuse or neglect to account, and suit is brought to compel them to do their duty, they will usually be charged with costs." But the mere fact that an executor has neglected to render accounts when requested, will not of itself make him liable for costs.^ In these cases the court will exercise a sound discretion, and if it appear that the cestui que trust demanded more than he was entitled to receive, and the exe- cutor submitted to the discretion of the court, he ' Fenwick v. Greenway, 10 Beav., 412; Byrne v. Norcott, 13 Beav., 336; Caffrey v. Darby, 6 Ves., 488. " Pocock V. Reddington, 5 Ves., 794; Challan v. Shippam, 4 Ilare, 555; Jones V. Foxhall, 15 Beav., 388. * Seers v. Hind, 1 Ves., Jr., 294; Piety v. Stace, 4 Ves., 620; Roche v. Hart, 11 Ves., 58; Mosely v. Ward, 11 Ves., 581; Ashburnham v. Thom- son, 13 Ves., 402. * Collyer v. Dudley, T. k. R., 271. * White V. Jackson, 15 Beav., 191 ; Robertson v. Wendell, 6 Paige, 322; Minuse v. Cox, 5 Johns. Ch. Rep., 451; Dunscomb v. Dunscomb, 1 Johns. Ch. Rep., 508; Smith v. Smith. 4 Johns. Ch. Rep., 445. LIABILITY OF TRUSTEES FOR COSTS. 705 will be entitled to his costs." ^ But a mere offer by an executor to account, accompanied by a denial that anything was due, will not excuse him from costs.^ A trustee is expected to act, in respect to the duties of his office, in good faith, without obstinacy or caprice ; and while so acting, the court will, as far as possible, protect him ; but where the trustee, from obstinacy or capriciousness, refuses to act in the proper discharge of his duty, he will be charged with costs in a suit brought to compel his action.^ Thus, where a bill for the specific performance of an agreement was made necessary by the refusal of a trustee to join in the conveyance, he was decreed to pay all the costs of suit.'^ So, also, where a sur- viving trustee of a will refused to convey the legal estate to the person beneficially entitled, upon some unfounded objection to his title, he was decreed to convey and pay costs.^ Where the litigation arises from the neglect of the trustee to keep proper accounts, and from his misapplication of the funds, he is chargeable with the costs.*^ In Chancery, costs do not depend upon any statute, nor absolutely upon the event of a cause. * Diinscomb r. Dunscomb, 1 Johns. Ch. Rep., 508, and see Minuse v. Cox, 5 Johns. Ch. Rep., 451. * Rogers v. Rogers, 3 Wend., 503. ° See Moor v. Prance, 9 Hare, 299; Curtis v. Robinson, 8 Beav., 242; Brinton's Estate, 10 Barr, 408. * Jones V. Lewis, 1 Cox, 199; see also Willis v. Hiscox, 4 M. & Cr.,197. * Willis V. Hiscox, 4 M. & Cr., 197. * Spencer v. Spencer, 11 Paige, 299. 45 706 LIABILITY OF TRUSTEES FOR COSTS. They depend upon conscience, and upon a full view and determination of the whole merits of the case. They rest in sound discretion to be exercised under a consideration of all the circumstances/ Hence, questions of costs between trustees and cestuis que trust are usually questions of conscience as to what is deemed to be right and just between them. For trustees will not be held responsible on slight grounds, nor generally, where there is evidence of upright intentions.^ Thus, it is held, that where an administrator has resisted a claim in good faith, and from a conviction of duty, and where no inten- tional or wilful default is made to appear, he should not, in general, be charged personally with costs.^ So, also, executors and other trustees, who have acted fairly, or who have resisted in good faith, merely by way of submission, shall have their costs out of the fund.^ So, where an executor or admin- istrator has brought a wrong action by mistake, or has ascertained that it will be useless to proceed in consequence of facts subsequently discovered, he will be permitted to discontinue without costs, as well before as after the hearing.'' So, also, where it is necessary for an executor to ask the aid and protection of the court, as for example, in order to * Eastburn v. Kirk, 2 Johns. Ch., 317; Leonard v. Freeman, CoL 8t C. Cases, 491; 2 R. S., 613, sec. 2, (N. Y.) * Moses V. Murgatroyd, 1 Johns. Ch., 473. ^ Rogers v. Ross, 4 Johns. Ch., 608; see also 1 Ves., 205, 246; see also McCamraon v. Worrall, 11 Paige, 99; Gouverneur v. Titus, 6 Paige, 347; Coutant V. Catlin, 2 Sand. Ch., 485. * Arnoux v. Steinbrenner, 1 Paige, 82; see 5 Cow., 14; 4 Cow., 551; 3 ;rohns., 247. LIABILITY OF TRUSTEES FOR COSTS. 707 authorize him to prefer his own demand over others — over which it is entitled to priority — his costs may be charged on the fund; ^ and where it is proper for them to file a bill for the construction of a will, their costs should be charged against the fund.* On the other hand, their exemption does not extend to cases where they proceed, notwithstand- ing a plain want of equity.^ Thus, an administra- trix, failing on an appeal for her own benefit, after a decision which ought to have been satisfactory, will be charged with costs.* So, where executors litigate in favor of their own private claims, on points of law long settled, they will be decreed to pay costs.^ So, where they bring groundless and vexa- tious suits,^ or where a trustee denies the trust, and sets up a claim for his own benefit.' And so, if a trustee misconduct himself in the course of a suit — as setting up an improper defence by insisting wrongfully on a clause of forfeiture against the cestui que trust •,^ or shows a disposition to obstruct and retard justice, by misstating or refusing to deliver proper accounts ; ^ or by stating his ignor- ' Decker v. Miller, 2 Paige, 149; Rasliley v. Martin, 1 Ves., Jr,, 205. " Wood V. Vanderbergh, 6 Paige, 277; Morrell v. Dickey, 1 Johns- Ch., 153; see 4 Ves., 630. ' Gar V. Bright, 1 Barb. Ch., 157; Leavitt v. Yates, 4 Edw. Ch., 134. * Gardner v. Gardner, 6 Paige, 455. • Manning r. Manning, 1 Johns. Ch., 527. • Getman v. Beardsley,. 2 Johns. Ch., 274; Rosevelt v. Ellithorp, 10 Paige, 415. ' Lemmond v. Peoples, 6 Ired. Eq., 137; Waterman v. Cochran, 12 Vt., 699; and see Spencer v. Spencer, 11 Paige, 159. * Lloyd V. Spillett, 3 P. Wms., 346. ' Shepperd v. Smith, 2 Bro. P. C, 372; Avery t». Osborn, Barn., 349; Korbury v. Calbeck, 2 Moll., 461. 708 LIABILITY OF TRUSTEES FOR COSTS. ance of facts, the truth of which afterwards appears from documents scheduled in the answer ; ^ or by concealing evidence relating to the trust. ^ And so, if the conduct of trustees, during the jorogress of a suit, occasions needless increase of expense, as where they have embarrassed the proceedings, and rendered it necessary to have other parties brought before the court, by appointing new trus- tees after the institution of the suit, they have been ordered to pay the extra costs occasioned by such act;^ and where several trustees are involved in a breach of trust, the court gives costs against all without regard to the degree of culpability, on the principle of giving greater security for their pay- ment.'^ But where there are several co-trustees, and some of them only have been guilty of the misconduct which occasioned the suit, whilst the others have been ready and anxious to discharge their duties properly, the guilty trustees alone will be decreed to pay the costs of suit, including the costs of their innocent co-trustees.^ Suits against trustees are frequently rendered necessary by circumstances, independent of, and wholly unconnected with any breach of trust, and in such cases the court will meet the justice of the case by apportioning the cost of suit, and will, in general, give the trustees all the costs not actually ' Att'y Gen. v. East Retford, 2 M. & K., 35. " Borough of Hertford v. Poor of Hertford, 2 Bro. P. C, 377. ' Att'y Gen. v. Clack, 1 Beav. 467; Cafe v. Bent, 3 Hare, 249. * Lawrence v. Bowie, 2 Phill., 140. * Webb V.Webb, 16 Sim., 55; Bagot v. Bagot, 10 Law Jour., N. S., Cli , 116. LIABILITY OF TRUSTEES FOR COSTS. TOO occasioned by their breach of trust.* The rule, as stated by Sir. Thos. Plummer, V. C, is : " If a suit would have been proper, and the executor a neces- sary party, though he had not misconducted him- self, he ought not to pay all the costs of such suit, though in the course of the suit it appears that he has misconducted himself; but if the misconduct of the executor was the sole occasion of the suit, he ought to pay the costs. " ^ The awarding of costs in these cases, in equity, according to the claims of justice in each particu- lar case, and an enlightened discretion, based upon a consideration of all the circumstances, is further illustrated in the following cases : Where a bill was filed by cestuis que trust against their trustee, charg- ing him with misconduct in felling timber, and also with an improper investment of a part of the trust funds, and they failed in establishing the first part of their case, but succeeded in proving the other part, and obtained a decree against the trus- tee for an account of the trust funds misapplied by him, with five per cent, interest, the Master of the Rolls said that it would be injustice to make the defendant pay the whole of the costs, for one part of the bill had failed ; and he was, therefore, decreed to pay so much of the cost as related to the breach of trust.'' So, where there was a suit to charge the trustee with the consequences of a par- ' Hill on Trustees, 5(34; see Fozier r- Andrews, 2 Jones &, Lat., 199; Sterrett's Appeal, 2 Penn. Rep., 419. ' Tebbs V. Carpenter, 1 Madcl., 308; Cracklet v. Buthune, 1 J. & W.,589. ' Pocock V. Keddington, 5 Vcs., 794. 710 LIABILITY OF TRUSTEES FOR COSTS. ticular breach of trust, and also to obtain the direction of the court as to the general administra- tion of the trust, the trustee was allowed the general costs of the suit, but charged with so much as had been caused by his breach of trust.^ And where a plaintiff, in a suit against trustees, enter into any unnecessary evidence, making unnecessary costs, he will be refused so much as he has needlessly made.'^ There are a class of cases where the court, in the exercise of a just and sound discretion, will not charo-e the executor or trustee with costs, neither will they give them their costs ; that is, the court will make no order on the subject, but will leave each party to pay their own costs. To this class be- long those cases in which the court deems both par- ties equally interested or equally at fault, and equity adjudges it right to leave the parties, in respect to costs where it finds them. Thus, where a trustee has accepted the trust, but, without reason, declines to act, and renders a suit for the appointment of a new trustee necessary. In such case he will be refused his costs .^ But where a party has been named a trustee without his sanction, he is justified in taking the opinion of counsel as to his obligation ' Pride v. Fooks, 2 Beav., 430; see also upon this principle, Hewett v. Foster, 8 Jur., 759. " Thorby v. Yates, 1 N. C C, 469, and Westover v. Chapman, 1 Coll., S79, 383. 'Howard v. Rhodes, 1 Keen, 581; Greenwood r. Wakeford, 1 Beav , 581; Porter v. Watts, 21 Law J. Ch., 211; Cruger v. Halliday, 11 Paige, 314; re Malony, 2 J. & Lat., 391 Jones v. Stockett, 2 Bland, 409. LIABILITY OF TRUSTEES FOR COSTS. Vll to execute a deed of disclaimer, and he will be entitled to his costs in so doing.^ Where a trustee, without sufficient reason, refused to convey or make over the trust property at the request of the cestui que trust, and a suit became necessary, he was not allowed his costs,^ and such refusal is often a sufficient reason for makins: the trustee pay costs."^ So Avhere the trustee had refused to convey the legal estate unless certain persona were made parties to the conveyance, and the court decided that those persons were not necessary par- ties, the trustee was refused the costs of suit,, although he acted in good faith, under the advice of a conveyancer of character. The Master of the Rolls said, " the trustee has acted h^ona fide under advice which misled him, but upon which he had reason to rely, from the experience and character of his adviser. It is for the interest of society, that a trustee under such circumstances should not be fixed with costs; but, the adviser who misled him being of his own choice, I cannot give him the costs of suit.* But whether costs will be given in these cases, where the trustee acts in good faith, under the advice of counsel, is one of conscience, de- pending upon the peculiar circumstances of each ' Re Tryon, 7 Beav., 496; see Gabriel v. Stnrgis, 5 Hare, 97, as to the rule of costs in case af disclaimer; so also in Benson v. Davies, 11 Beay., 369. » Ellis V. Ellis, 1 Russ., 368. ' Jones V. Lewis, 1 Cox, 199 j Willis v. Hiscox, 4 M. & Cr., 197; Thorn- byr. Yates, 1 N.C. C.,438. * Angier v. Stannard, 3 M. &. K., 572; but see Pool v. Pass, 1 Beav., 600; contra, see Devey v. Thornton, 9 Hare, 233. 712 LIABILITY OF TRUSTEES FOR COSTS. particular case ; and no general or universal rule can be applied to them/ Where several co-trustees are made defendants in respect to their joint fiduciary character only, they should appear by the same solicitor, and answer and defend together : and if they appear separately, and sever in their defence without any special circum- stances requiring that step, they will be allowed only one set of costs.- But two sets of cost will be allowed where there is a sufficient reason for sever- ino- ; as, where one of the trustees has a personal interest which conflicts with his duty as trustee,^ or where one can admit facts which the others do not believe to be true,^ or where they reside at such a distance from each other they cannot join in their defence." Courts are not eager to punish trustees by depriv- ing them of their costs, and where there are miti- * See Pool V. Pass. 1 Beav., 600, where the counsel on each side -were consulted and diflfered in opinion, and the defendant proposed referring it to a third counsel, which was declined. On the other hand, see Devey v. Thornton, 9 Hare. 223, where the trustees had unnecessarily raised doubts as to the title of their cestui que trust. See also Boulton v. Beard, 27 Eng. L. & Eq., 421; Pell r. Ball, Spear's Eq., 48. 'Nicholson v. Faulkner, 1 Moll., 559; Gaunt c. Taylor, 2 Beav., 347; Aldridge r. Westbrook, 4 Beav., 214; Allen v. Thorp, 13 L. J., Is. S., Ch., 5; Davis r. McNeil, llred. Eq., 344; Farr r. Sheriffe, 4 Hare, .512; see also Wiles r. Cooper, 9 Beav., 298: and if one trustee only is charged with misconduct, the one set of costs will be allowed to the innocent trustees. Webb r. Webb, 16 Sim., 55; Att'y Gen. v. Cumming, 2 N. C. C, 57, and 2 Y. &. C Ch. Ca., 156; Young v. Scott, 1 Jones. Jr., Exch , 71. ' Gaunt r. Taylor, 2 Beav., .346. * Gaunt V. Taylor, 2 Beav., 347. ' Aldridge r. Westbrook, 4 Beav., 213; Dudgeon r. Cormley, 2 Conn. and Laws, 422; Wiles v. Cooper, 9 Beav., 294; Lewin on Trusts, 8-58; Hill on Trustees, 553. LIABILITY OF TRUSTEES FOR COSTS. 713 satincr circumstances, they have been allowed their costs of suit, in which the decree was against them, for a breach of trust ; as, where there had been a misapplication of only a small part of the fund, and the suit had been instituted for other purposes, and there was no imputation against the trustee.^ In suits between trustees and cestui que trust, where there is a fund under the control of the court, trustees, as a general rule, are entitled to their costs out of the fund, to be taxed as between solicitor and client, and not like ordinary cases, as between party and party :- and these are emphatically termed trus- tee's costs. But costs between solicitor and client will not include every charge which a party's own solicitor would be entitled to make against him in his bill; or any charges or expenses which are not strictly speaking '^ costs." Therefore, to include all, the decree should go on to allow the trustee his charges and expenses,^ or for just allowances.^ But in these cases the decree must contain an express direction to tax the cost as between '^solicitor and client,'' or they will be taxed in the ordinary way, as between "party and party. '-^ Still, if it contain * Fitzgerald r. Pringle, 2 Moll., 534; and see Sammes r. Rickman, 2 Yes., Jr.. 36; see also on this principle. Bennett r. Atkins, 1 T. & Coll., 249; Bennett r. Going, 1 Moll., 629; Taylor r. Tabruni, 6 Sim., 281. ' Amand r. Bradbourn, 2 Ch. Ca., 138; Mohun r. Mohun, 1 Sw., 201; Fride r. Fooks, 2 Beav., 473; Hosack r. Rogers. 9 Paige. 463; Irring v. De Kay, 9 Paige, 533; Minuse r. Cox, 5 Johns Ch. Rep., 451. * Hill on Trustees, 565; Fearns r. Young, 10 Ves., 184. This distinction between costs taxed as between party and party and between solicitor and client, is peculiar to Courts of Equity, and does not exist at law. Hill on Trustees, 566. «Ibid. * Fearns r. Young, 10 Yes., 1S4. 714 LIABILITY OF TRUSTEES FOR COSTS. a direction for '^just allowanccs,^^ he would be enti- tled to his extra expenses under that head/ As those costs taxed between solicitor and client are termed " trustee's costs," it follows that they will not be taxed in a case where that relation or char- acter does not exist. Thus, where a person has been named as trustee in an instrument, and is made a party to a suit respecting the trust, and he comes in and disclaims by his answer, and the bill is dis- missed, as to him, he will be entitled to his costs, not as between solicitor and client, but only as between party and party ; for his own answer shows that he does not fill the character of trustee." So, also, a consignee or agent, who receives and holds property for the benefit of others, but is not ap- pointed a trustee by deed, in a suit brought by a party having conflicting claims to property in his hands, cannot have his costs as between solicitor and client; but he is in the situation of a plaintiff in a bill of interpleader, who is entitled to costs only as between party and party .^ ' See preceding note. '' Norway v. Norway, 2 M. & K., 278; Bray v. West, 9 Sim., 429; Hill on Trustees, 566. » Dunlop V. Hubbard, 19 Yes., 205. STATUTES OF LIMITATION. 715 Section VII. LIMITATION OP ACTIONS, &c. STATUTES OF LIMITATION. As between trustee and cestui que trust, an express trust, constituted by the act of the parties them- selves, will not be barred by any length of time ; for in such case there is no adverse possession.* And where there are several trustees, the statute will not commence running against the cestui que trust as long as any one of the trustees is in pos- session.^ The principle applicable to express trusts as be- tween trustees and cestuis que trust is, that the statute does not begin to run, until there has been some open express denial of the right of the cestui que trust, and what amounts to an adverse possession by the trustee ; ^ and it has been held that even adverse possession must be brought home by notice to the cestui que trust} Lord Justice Knight Bruce, held » Beckford v. Wade, 17 Ves., 97; Wedderburn v. Wedderburn, 4 M. & Cr., 52; Hill on Trustees, 264 ; see also the Limitation Act, 3 and 4 wi]] IV.,ch. 27, sec. 25. » Att'y Gen. v. Flint, 4 Hare, 147. 'Decouche v. Savetier, 3 Johns. Ch. Rep., 190; Anstice v. Brown 6 Paige, 448; Kane v. Bloodgood, 7 Johns. Ch. Rep., 90; Bohannon's Heirs V. Sthreshley's Adm'r, 2 B. Monr., 438; Foscue v. Foscue, 2 Ired. Eq. 321; Varick v. Edwards, 11 Paige, 289; Johnson v. Humphreys, 14 S. & R., 394; Finney r. Cochran, 1 W. & S., 118; Pinkston v. Brewster, 14 Alab., 315; Murdock v. Hughes, 7 Sm. & M., 219; Zacharias v. Zacharias, 23 Penn. St. Rep., 452; Smith v. Calloway, 7 Blackf., 86; Oliver v. Piatt' 3 How. U. S., 333; Creigh's Heirs v. Henson, 10 Grat., 231 ; Whites' White, 1 Johns. Md. Ch., 56. * Fox V. Cash, 11 Penn. St. Rep., 207; Starkie v. Starke, 3 Rich 438- Zeller's Lessee v. Eckert. 4 How. U. S. Rep., 289; Williams v. First Presb' So 1 Ohio, N. S., 478. 716 LIMITATION OF ACTIONS, ETC. that one who had acquired possession as trustee, would never be permitted. to set it up as a beneficial possession in himself; and that it was his duty, if he meant to claim adversely, to give up possession of the estate, and then set his claim afterwards/ As the reason that the statute will not begin to run, in cases of express trusts, between the trustee and his beneficiary, is, that the possession of the trustee is the possession of the cestui que trust, and consequently not adverse, within the meaning of the statute ; it follows that when anything occurs be- tween them which changes their relation to the pro- perty, and makes their interests and claims adverse, the statute will commence running. Thus, where there had been an accounting and a delivery of the trust property by the trustee to the cestui que trust, while a minor, and a denial of any further liability shortly after he had become of age, it was held that the statute commenced running from that period.'* So where a trustee, with the knowledge of his cestui que trust, made a conveyance apparently in deroga- tion of his trust, and undisturbed possession was held and improvements were made, during a long period, by the grantee and those claiming under him, during which time no claim was asserted by the cestui que trust, it was presumed that, for a suffi- cient consideration, he directed or acquiesced in the conveyance, and the statute was permitted to run.^ ' Stone V. Godfrey, 18 Jur., 52t, and 5 DoQ., Mac. & G-, 7G. « Sollco V. Croft, 7 Ilich Eq., 34. •Williams v. The First Presbyterian Society, 1 Ohio, N. S., 478; seo also Wcddcrburn v. Wcddcrburn, 2 Keen, 740, and S. C, 4 M. &. Cr., 52. STATUTES OF LIMITATION. 717 So, also, where the rehition is terminated by a breach of trust/ It is upon the same principle that the statute is permitted to run in cases of resulting or presump- tive trusts. In general, the facts out of which such trusts arise, from their very nature, pre-suppose an adverse claim of right on the part of the trustee by implication from the beginning ; and the statute will commence to run against the cestui que trust from the period at which he could have vindicated his right by action or otherwise, which, in equity, is considered to be when he has, or, with reasonable diligence, could have made himself acquainted with his right.'' But a mere lapse of time of itself, without other proofs, will not be a bar to relief on a con- structive trust originating in fraud. The party entitled to relief, nuist have been aware of his rights, and have acquiesced in being deprived of them ; and the statute will not begin to run against him until he has acquired or might, with reasonable diligence, have acquired the knowledge of the fact upon which the trust is founded.'' And, in the case » Wickliffo V. City of Lexington, U IJ. Mour., ItU. ' Bcoktbni t). Wade, 17 Ves., 97; Poitlock v. (Javdner, 1 Haro, 594; Shoppards v. Turpin, 3 Gvatt., 873; Murdock v. Hughes, 7 Sm.Si M.,'219; Trevost V. Gratz, C> Wlioat., 481; Cuyler v. Bradt, 2 Caine's Gas., 3'2(J; Strimpller v. Roberts, 18 Pcnn. St. Rep.. 300; Ilallett v. Collins, 10 How. U. S., 174; Fhalcn v. Clark, 19 Conn., 421; Doggett v. Emmerson,3 Story, 700. 'Ryder v. Beekerton, 3 Sw., 81, n.; Blennerrliassett v. Day, 2 Ball Sc B., 118; AVarner v. Daniels, 1 W- &, M., Ill; Bowens v. Evans, 2 II. & L. Cas., 237; Ilallett v. Golliua, 10 llow. U. S. Rep., 174; Tlialen v. Clark, 19 Conn., 421. 718 LIMITATION OF ACTIONS, ETC. of Michoud V. Girod/ the Court remarked: "We believe no case can be found in the books in which a Court of Equity has refused to give relief within the lifetime of either of the parties upon whom the fraud is proved, or within thirty years after it has been discovered, or become known to the party whose rights are affected by it." In New York it has been decided that by analogy to the Statute of Limitations, twenty years is the shortest period which can bar a proceeding in equity to set aside a conveyance obtained by fraud.* But w^hen there is no adverse possession, or when there could be no bar at law, it is said there is none in equity ;^ and most cases lay down no certain or definite period in which a proceeding in equity for relief will be barred, but leave the question to depend very much upon other circumstances.'' Executors and administrators are often trustees for legatees, creditors, and next of kin, consequently the general rule is applicable to them,^ though there will be a presumption of payment after a great •4How. U. S.,61. ' Ward V. Van Bokkelin, 1 Paige, 100; see also this analogy to the stat- ute, Thompson v. Blair, 3 Murphy, 593; Farr v. Farr, 1 Hill's Eq., 391; Field V. Wilson, 6 B. Monr., 479; Perry v. Craige, 3 Miss., 525; Miller v. Mclntyre, 6 Pet., 61; Bank U. S. v. Biddle, 2 Par. Eq., 31; Ferris v. Hen- derson, 12 Ponn. St. Rep., 54; Walker v. Walker, IG S. & R., 379. ' Varick v. Edwards, 1 Iloff. Ch., 417; Elmendorf d. Taylor, 10 Wheat., 176; Barbour v. Whitlock, 4 B. Monr., 197. * See Bell v. Webb, 2 Gill., 163; Rhinelander v. Barrow, 17 Johns. Rep., 638; Butler v. Haskell, 4 Desaus., 651; but see Harrod v. Fountleroy, 3 J. J. Marsh, 648: Phillips v. Beldcn. 2 Edw Ch.,1; Powell v. Murray, 10 Paige, 250; Maxwell v. Kennedy, 8 How. U. S., 210. * Lindsay v. Lindsay, 1 Djsaus., 150; Carr v. Bab, 7 Dana, 417; Blue t). Patterson, 1 Dev. & Batt., 457; Bird v. Graham, 1 Ired. Eq., 196. STATUTES OF LIMITATION. 719 lapse of time/ And, in some of the States, statutes have been passed limiting the time within which they shall be held liable. But in cases of express trusts accounts have been decreed against trustees extending over thirty, forty and forty-five years.^ It is held that a cestui que trust tenant for life may dissiese the trustee by a formal denial and disclaimer of the tenancy ; and if he continue to deal with the estate in a manner inconsistent with the subsistence of the trust, he will acquire an adverse possession as against the trustee upon which the Statute of Limitations will operate, so as to vest in him an indefeasible legal estate. But it is extremely difficult to determine at what time such adverse possession on the part of the cestui que trust commenced.^ But when the occupancy of the cestui que trust as such is not inconsistent with his tenancy, no such adverse possession will be ac- quired.* So, the legal estate vested in the trustee, together with the equitable interest dependent on it, may be defeated and divested by the disseisin of a stranger, who has no notice of the trust, and the Statutes of ' Bird r. Graham, 1 Ired. Eq.,196; Graham r. Davidson, 2 Dev. & Batt., 155; Hudson r. Hudson, 3 Rawlc, 117; see Angel on Limitations, chap. 16. ' Beaumont v. Boultbee, 5 Ves., 485; Townsend v. Townsend, 1 Cox, 28; Chalmer t-. Bradley, 1 J. & W-, 51; Att'y Gen. v. Brewers' Co., 1 Mer., 495. ' Keene v. Deardon, 8 East, 247; Earl of Portsmouth v. Lord Effingham, 1 Ves., 435; Harwood v. Oglander, 3 Ves., 131; Hill on Trustees, 267. * Price V. Blackmore, 6 Beav., 507, 514. 720 LIMITATION OF ACTIONS, ETC. Limitation will constitute an effectual bar ; * and, if the Statute has begun to run, it will not be sus- pended by the death of the trustee and the failure to appoint a successor, even in the case of an infant.'^ But whether the Statutes of Limitation shall or shall not be applied to any given case in equity, would seem to depend more upon the appa- rent equity of the parties litigating, than upon any very definite rules of general application, at least, so far as the administration of trusts are concerned. Mr. Hill remarks : " On the whole, it must be admitted that the effect of the Statutes of Limita- tion, as applied to the estates of trustees, is left in a very unsatisfactory state by the authorities, and it is extremely difficult to gather from them any very definite rules of general application.^ * Lewellon v. Mackworth, 2 Eq. Ca. Abr., 579; Hovenden v. Lord Annes- ley, 2 Sch. & Lef., G29; Pontland v. Stokes, 2 Ball. & B., 75; Elmendorff V. Taylor, 10 Wheat., 152; Williams v. Otey, 8 Humph., .563; Smilie v. Biffle, 2 Barr, 52; Wooldridge v. Planters' Bank, 1 Sneed, 297; Worthy v. Johnson, 10 Geo., 358; Long v. Cason. 4 Rich Eq., 60. ■■' Wooldridge v. Planters' Bank, 1 Sneed, 297; see also, as to barring an infant cestui que trust, Worthy v. Johnson, 10 Geo., 358; Williams v.Otej, 8 Humph., 563; Long v. Cason, 4 Rich Eq., 60. ' Hill on Trustees, 268. DISCRETIONARY POWERS OF TRUSTEES. 721 OHAPTEE VI. POWERS OF TRUSTEES. Section I. DISCRETIONARY POWERS OF TRUSTEES. No formal set of words is requisite to create or reserve a power. Their creation, execution or des- truction all depends upon the substantial intention of the parties ; and they are to be construed equit- ably and liberally, in furtherance of that intention.* Where the power, which it is the duty of the party to execute, is put upon him by the testator, and is made his duty by the requisition of the will, and the testator has given him a sufficient interest to enable him to discharge that duty or execute the power, he is a trustee for the exercise of it ; and has not 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 circumstances to disappoint the interests of those for whose benefit he is called upon to execute the power.^ M Kent's Com., 319; Lord Mansfield in Doug. R., 293; Lord Ellen- borough, 3 East R., 441 i Jackson v. Veeder, 11 Johns. Rep., 1G9. » Richardson v. Chapman, 5 Bro. P. C, 400; see De Peyst^r v. Clendin- ing, 8 Paige, 296; Brown v. Higgs, 8 Ves., 561 ; Miller v. Meetch, 8 Barr, 417; Gibbs v. Marsh, 2 Mete, 243; Withers v. Yeaden, 1 Rich Ch., 324; Gaskell v. Harmon, 11 Yes., 507; Walker v. Shore, 19 Yes., 392; Elwin V. Elwin, 8 Yes., 554; Gibson v. Bott, 7 Yes., 94. 46 722 DISCRETIONARY POWERS OF TRUSTEES. Wherever an authority is given to trustees, which is either not compulsory upon them to exer- cise at all, or if compulsory, the time, manner or extent of its execution is left to be determined by the trustees, it is a discretionary power ; and it may be conferred either by the express terms of the trust, or by implication from the nature of the duty imposed upon them. An express discretionary power is where the trustees are authorized or empowered to act " at their discretion;" or, "if they should think fit," " proper," etc. Thus, in the case of Kemp v. Kemp,^ the executrix, after giving several specific and pecuniary legacies, gave the residue to her cousin, Martha Kemp, for life, and then to be disposed of among her children as she shall think proper. Martha Kemp and her son Anthony Facer Kemp, Avere appointed executors. The fund which was thus the subject of her appointment among her children was about jel,900. Martha Kemp, by her will, appointed said fund in the manner following ; " I give, bequeath, and dispose, unto my son Anthony Facer Kemp the sum of je50 thereof I give, bequeath, and dispose unto my daughter, Martha Searcombe, the wife of Richard Searcombe, the sum of <£lO, other part thereof, to and for her own sole and separate use and benefit absolutely; and, as to all the rest, residue and remainder, of such goods, chattels, estates and effects, and of what nature or kind soever, I give, bequeath and dispose of the ' Kemp V. Kemp, 5 Vcs., 849. DISCRETIONARY POWERS OF TRUSTEES. 723 same, and every part and parcel thereof, unto my son, Samuel Scattergood Kemp, to and for his own use and benefit forever ; and she appointed Samuel Scattergood Kemp her sole executor, leaving only the three children mentioned in her will. The question arose whether the appointments made by the appointor were in pursuance of the power "to dispose of, &c., among her children as she shall think proper." The Master of the Rolls held that the language of the power was not large enough to enable the trustee to give the whole sum to one of her children only, consequently she was bound to give each one a substantial portion of the £1,900.' Said the Master, Sir R. P. Arden, the property is pretty nearly j£l,900. I should hardly have considered that ,£50 could be considered a substantial part ; but the sum of jEIO to the daugh- ter was evidently meant to be no gift ; the mother merely supposing herself to be under the necessity of giving something to each. The Master of the Rolls thought, that had the testatrix said, " to such of her children as she may think proper," the language would have been large enough to have authorized the giving of the whole to one of her children to the exclusion of the others. He said, in Spring v. Biles,^ the words were " to and amongst such of my relations as shall be living at the time of my decease, in such parts, shares and ' Kemp V. Kemp, 5 Ves., 849; Alexander v. Alexander, 2 Ves., 640; Coleman v. Seymour, 1 Ves., 209; Hayuesworth v. Cox, 1 Harp. Eq., 119, and note. " Spring V. Biles, 1 T. R. B. R., 435, note. 724 DISCRETIONARY POWERS OF TRUSTEES. proportions, as my wife shall think proper." The Judges were of the ojDinion that these words gave full power to give to one or more ; and most of the cases that have arisen upon words of this sort are there quoted, as, Thomas v. Thomas,^ where the words were " to one or more of his children ;" Tomlinson v. Dighton,^ where it ^vas " to any of his children ;" Macey v. Shurmer,"^ " amongst all or such of his children ;" and Liefe v. Saltingstone,'' to "such of my children." All these words were held, and very properly, to show a manifest inten- tion to give a power to appoint to any one child that should answer the description. " But," said the master, "it does not appear to have been argued, at least not conceded, that the word ' amongst ' has not been considered equivalent to ^ all' ' every,' which words are mendatory, and make it necessary that each should share." It is to be noticed that the Master of the Rolls decided that from the language of the power, the donor intended that each child of the appointor, should be an appointee ; and, consequently, an illu- sory appointment w^ould not be in compliance Avith the manifest intention of the donor; who, if she intended anything for each child, must be presumed to have intended for each a substantial part of said j£l,900. And as the appointments in this case, as to one of the appointees at least, were illusory, and * Thomas v. Thomas, 2 Vern., 513. *1 P. Wms., 149. * Macej' V. Shurmer, 1 Atk., 389. * 1 Mod., 189; 2 Lev., 104; Carter, 232. DISCRETIONARY POWERS OF TRUSTEES. 725 not designed as an execution of the power, it was therefore void/ Thomas Longmore by will gave and bequeathed all his personal estate, of what nature and kind soever, to his executors, upon trust, and subject to the payment of his debts, to pay, apply and dispose of his said personal estate " unto and amongst his two brothers Joseph and Benjamin, and his sister Hannah, or their children, in such shares and pro- portion, and at such time or times as they, his trustees, or the major part or the survivor of them, his executors or administrators shall, in their dis- cretion, think proper. The executors, not having made any disposition of the w^hole, but having made some payments to the brothers and sister, the bill was filed by Benja- min to have the accounts taken and the residue divided as the court should direct. By a decree made in February, 1798, the accounts were directed; and by another decree in February, 1802, an in- quiry was directed as to the balances in the hands of the executors from year to year, and what children the plaintiff and his brother Joseph and sister Hannah had at the death of the testator; and if any were dead, who were their representa- tives. The facts having been ascertained. Sir William Grant, M. R., held, that a discretion was vested in the executors to say to whom the fund should go, to the parents or to the children. But not having exercised their power of appointment, it ' Kemp V. Kemp, 5 Ves., 8G1. 726 DISCRETIONARY POWERS OF TRUSTEES. devolved upon the court, which had not that dis- cretion; but could only say to what class it be- longed, or what class should take and then divide the fund equally between the members of that class/ In this case, the court held that the fund should be distributed to the parents and all the children living at the death of the testator, and to the representa- tives of such as had since died. In this case, the Master of the Rolls construed the word "or" as "and," under the rule that in the construction of wills, " the copulative ' and ' may be construed by the disjunctive ' or,' and vice versa provided such construction appear necessary to give effect to the testator's intention."^ And here is illustrated another principle in the execution of discretionary powers. A discretion- ary power as to the proportions in which a testator's bounty shall be distributed amongst his next of kin, may be given to his executors; but if the execution of the trust devolve upon the court, no such power of discretionary distribution or selection can be exercised. The statute of distributions affords the only rule of selection which the court can adopt in such cases ; and if the testator's bequest was to be divided, not amongst a family, but amongst certain ' Longmore v. Broom, 7 Ves., 128. " Maberly v. Strode, 3 Ves., 450; Longmore v. Broom, 7 Ves., 128; Hor- ridge v. Ferguson, 1 Jac, .583; Thackery v. Hampsen. 2 Sim. & Stu., 214; Markhouse v. Markhouse, 3 Sim., 126; Mills v. Dyer, 5 Sim., 435; and " and" may be construed " or," Maberly v. Strode, ut supra ; Bell v. Phyn, 7 Ves., 124; Newman v. Nightingale, 1 Cox, 341 ; see Jackson v. Blausham, 6 Johns. Rep., 54; Haven v. Streets, 2 Binn., 532; Holmes v. Holmes, 5 Binn., 252. DISCRETIONARY POWERS OF TRUSTEES. 727 named or described individuals, at the discretion of the trustees as to their respective shares, the court, if called upon to act, must make an equal distribu- tion amongst them all/ When the execution of a will giving bequests to the testator's " relations," devolves upon the court, in such cases, the court, for convenience alone, fol- low a rule based upon the statute of distribution, for the purpose of determining who are entitled to the bequest.' But a reference to the statute of distribution will not be necessary, when the testa- tor has himself so qualified his bequest as to rela- tions, as to define what description of relations he meant ; and restraining it to such particular objects, as, " to my poor relations." In such cases the gift has been extended to all who were poor, although they stood in different degrees of relationship.^ So, also, it has been held, that there is no uncertainty in a bequest to " nearest relations," making a re- ference to the statute of distribution necessary.* The principle involved in these discretionary trusts, in their creation, arises from the fact that sometimes, a person having property or money to dispose of, intrusts its disposition, or the mode of its * See Longmore v. Broom, 7 Ves., 128; Brown v. Higgs, 4 Ves., 708 Mogridge v. Thackwell, 1 Ves-, 464; Walker v. Walker, 5 Mad., 426 Brandon v. Brandon, 3 Svvanst., 319; Cruwys v. Coleman, 9 Ves., 324 Cole V. Wade, 16 Ves., 47. "" Cruwys v. Coleman, 9 Ves., 324; Cole v. Wade, 16 Ves., 47. ' Crossley v. Clare, 3 Swanst., 323; Brunsden v. Woolridge, Amb., 507; White V, White, 7 Ves., 423; and see Isaac v. De Friez, stated from Req. Lib., in note to 17 Ves., 733. * Smith V. Campbell, 19 Ves., 400; Brandon v. Brandon, 3 Swanst., 319; Stump V. Cook, 1 Cox, 236. 728 DISCRETIONARY POWERS OF TRUSTEES. disposition, or the time of doing it, to the judgment and discretion of another; because of the confi- dence he has in their ability to do better than he with his then present information, is capable of doing. Where he makes that discretion absolute in the donee, not only as to the time, the manner and the objects, but as to the trust itself, equity will not interfere to raise a trust.^ But if there is, con- nected with such gift or grant, a use clearly indi- cated, either for the donor, grantor, or a third party, equity will raise a trust and enforce it. The inten- tion of the donor or grantor, in making the gift or grant, is binding upon the conscience of the donee ; and where that intention can be clearly ascertained, there is, usually, little difficulty in carrjdng it into effect.'^ A mere powder is not imperative, but leaves the action of the party receiving it, to be exercised at discretion. The donor or grantor, having full confidence in the judgment and integrity of the party, empowers him to act according to the dic- tates of that judgment, and the promptings of his own heart. A trust is imperative, and is created with strict reference to its faithful execution. But cases arise which do not seem to belong to the one or the other of these classes. In the language of Lord Eldon, there is not only a mere power and a mere trust, but there is likewise known to the court, ' 2 Fonb. Eq., B. 2, ch. 2, sac 4, note {x) ; Mason v. Jones, 3 Edw. Ch., 497; Champlia v. Cbamplin, 3 Edw., 571; Leggctt v. Hunter, 19 N. Y., 445. " Collins V. Carlisle, 7 B. Monr., 14; Errickson v. Willard, 1 N. n.,217; Bull V. Bull, 8 Gonn.. 47; Withers v. Yeadon, 1 Rich Eq., 324. DISCRETIONARY POWERS OF TRUSTEES. 729 a power with which a party is entrusted and is required to execute.^ Such cases arise where the donor has entrusted the party with money or pro- perty to be used according to his judgment or dis- cretion, for the use of certain persons, or for a class of persons ; but nevertheless, to be used for others than himself. The discretion of the trustee is not absolute, but confined to the time, the manner, or the particular individuals of a class.^ The principles by which it is determined whether a trust is raised in connection with discretionary powers, are: 1. Are the words in respect to any part of the power to be exercised, imperative, as dis- tinguished from optional or discretionary; 2. Is the subject of the trust certain, so that the court may know to what it attaches; and, 3. Are the objects of the trust sufficiently designated, that the court may know for whose benefit it is intended. Thus, a testator devised his real estate and negroes to his son G. W., in trust, 1. To apply the rents, issues and profits to the use of himself and family, and the education of his children; 2. He empow- ered him to give or devise, by deed or will, the said property, and the rents, issues and profits thereof, over and above what he should apply to the uses aforesaid, unto all or any child or children by him begotten or to be begotten, in such a way and man- ' Brown v. Higgs, 8 Ves., 570; Story's Eq. Jur., sec. 1061; Richardson V. Chapman, 5 Bro. P. C, 400; see 1 Pow. on Dev., 294, Jarmau's note; Sugd. on Pow., ch. 6, sec. 3, p. 393, ante, 210. » IIocj^ V. Kenney, 2.5 Barb., 398; 1 Rev. St., (N. Y.,) 734, sec 100; see also Brest v. Offley, 1 Ch. Rep., 246. 730 DISCRETIONARY POWERS OF TRUSTEES. ner, and in such proportions, and for such uses, estates and interests as he shall see fit and proper." G. W. died, leaving a will, by which he devised the whole of his estate to his wife, with directions that his executors (his wife and sons) should act under his father's will, in trust, and in every respect and manner intended by their grand-father. It is to be noticed in determining the character of the first devise and bequest, 1. That the estate was given to G. W. in trust ; 2. That he was invested with discretionary powers to determine who of a certain class were to be the particular objects of such trust: and also, when, how, in what propor- tions, and with what estates, they were to be in- vested; but, 3. The discretion of G. W. did not extend to the trust itself; that was imperative. Therefore the court held, 1. That the legal estate was in G. W., coupled with a power in trust to appoint, at his discretion, among his children; 2. That the power could not be delegated ; and, 3. That as G. W. had neglected to exercise the power, his children were entitled to divide the property equally.^ In another case'^ a widow, upon her second mar- riage, settled a fund, in trust, for her own separate use for life, and declared that subject thereto, the fund should, as and when she should think fit, or be advised, be settled in trust for the benefit of A., her * Withers v. Yeadon. 1 Rich Eq., 324; see Collins v. Carlisle's Heirs, 7 B. Monr., 14; Bull v. Bull, 8 Conn., 47; Gilbert v. Chapin, 19 Conn., 351; Harper t'. Phelps, 21 Conn., 257. " Croft V. Adam, 12 Sim., 639. DISCRETIONARY POWERS OF TRUSTEES. 'J'31 unmarried daughter, by her first husband, and her daughter's intended husband, and their children, in sucii manner and for such rights and interests as should be agreed upon, either previous to or after the marriage of A., with her consent; and she, the widow, should be at free liberty, and have full power and authority to settle the fund or any part of it in trust for the immediate benefit of her daughter and children. But if her daughter should not be mar- ried in her mother's lifetime, then the trust should be for the daughter's benefit, and a vested interest in her at twenty-one, with a trust over on the death of the daughter, without marrying, in the lifetime of the mother. In this case the trust was declared subject to the use of the mother for life ; and also subject to cer- tain discretionary powers of the settler, extending to the time, the manner, etc., of its enjoyment ; but not extending to the trust itself. Therefore it was held by the Vice Chancellor that there was a trust for the daughter, her husband and their children, subject to certain modifications of their interest, by the mother, had she seen fit to have exercised the power. Thus a trust will be raised under a power, where the discretion does not extend to the trust itself, and where the subject and object of the trust are sufficiently certain to enable the court to exe- cute it according to the manifest will of the testator.^ When discretionary powers have been committed ' McNeilledse v. Galbraith. 8 S. & R., 43; Withers v. Teadon. 1 Rich Eq.,324-, Hunter v. Stembredge, 12 Geo., 192; Steele v.Levisay, 11 Gratt., 454. 732 DISCRETIONARY POWERS OF TRUSTEES. to trustees, and they have failed to exercise them during their lifetime ; or where they have declined to act, the power is gone ; for it is now well settled that the court will not exercise a mere dis- cretionary power/ But there is an exception, however, to this general rule in the case of a public charity ; for the court, upon the death or refusal of the trustees to accept, will exercise a discretionary power of administering a charity estate, by virtue of its general jurisdiction to govern and regulate charities.^ The principle by which courts under- take the exercise of a discretionary power in the case of charity, is laid down thus : " Charity is the essence and substance, and the mode only a shadow 'j*^ therefore the court will entrust itself with the exercise of a discretion which has been personally entrusted to another, rather than the essence or substance shall fail. And again, "the substance of the charity remains, notwithstanding the death of the trustee before the testator, and though at law it is a lapsed legacy, yet in equity it is subsisting, &c."=' But this doctrine, that the court will entrust itself with the execution of a discretionary power which is given personally to another, is repudiated ' Kemp V. Kemp, 5 Ves., Jr., 849, 859; Keates v. Burton, 14 Ves., 437; 2 Sugd. on Pow., 190, (6th ed.) ; Beekman v. Bonsor, 23 N. Y. Rep., 303, 305. ' Hill on Trustees, 486; Moggridge v. Thackwell, 7 Ves., 80; Att'y Gen. V. Hickman, 2 Eq. Ca. Abr., 193; Gower v. Mainwaring, 2 Ves., 89. ' 7 Ves., 80, ut supra; see Going v. Emery, 16 Pick., 107; Bartlet v. King, 12 Mass., 537; Burbank v. Whitney, 24 Pick., 146; Nye v. Bartlet, 4 Mete, 378; but see Beekman v. Bonsor, 23 N. Y. Rep., 305. DISCRETIONARY POWERS OF TRUSTEES. *^33 in New York. In the case of Beekman v. Bonsor/ where the testator had made a gift to charity, and had intrusted his executors with Large discretionary powers, in the direction and management of the trust, which powers were personal to them, the Court of Appeals held that the executors having renounced the trust, the power was gone ; that being personal in character it could not be exer- cised by others. That even an administrator, cum testamento annexo, could not exercise such discre- tionary powers, although their statute provides, that " in all cases where letters of administration with the will annexed shall be granted, the will of the deceased shall be observed and performed, and the administrators with such wills shall have the same rights and powers, and be subject to the same duties as if they had been named executors in such wills."^ Not only will a court of equity not assume the exercise of a discretionary power vested in trustees, where they have renounced the trust, or have died without the exercise of it, but they will not inter- fere with the exercise of a discretionary power, while trustees are acting in good faith and with ordinary prudence.' But equity will require the > Beekman v. Bonsor, 23 N. Y. Rep., 303, 304, and 2 R. S., 72, sec. 22; Conklin V. Edgerton, 21 Wend., 430; Wills v. Cowper, 2 Hammond, 124; but see Peebles v. Watts, 9 Dana, 102; Steele v. Morley, ib. 139; Brown v. Armistead, 6 Rand., 594. » Potter V. Chapman, Ambl., 98; French v. Davidson, 3 Mad., 305; Pmk V. De Thuisey, 2 Mad., 157, 162; Clark v. Parker, 19 Ves., 11; Morton v. South-ate, 28 Maine, 41; Littlcfield v. Cole, 33 Maine, 552; Arnold v. Gil- bert 3 Sandf. Ch., 556; Mason v. Mason, 4 Sandf. Ch., 623; Hawley v. James, 5 Paige, 485; Leavitt v. Beirne, 21 Conn., 2; Cowles v. Brown, 4 Coll., 477. 734 DISCRETIONARY POWERS OF TRUSTEES. exercise of good faith on the part of the trustee in executing discretionary powers committed to him, and will entertain a bill filed by a party in interest to ascertain whether the discretion has been or is being properly exercised. Thus, where there was a direction in the will that the testator's widow should receive *' all the income of his real and per- sonal estate, and pay and apply the same to and for the use of herself and the children of their mar- riage, agreeably and according to her own discre- tion," which it was claimed the court could not inter- fere with so long as the discretion was reasonably and honestly exercised, Vice Chancellor Wigram held that one of the children having an interest subject to the discretion of the mother, had a right to a discovery of the property in respect of which the interest existed, and also to the discovery of all the acts which had been done, and the reason for doing them, which the mother might be able to give. The plaintiff had this right, in order that the court might be able to see whether the discre- tion exercised by the party defendant, the mother, was within the limits of a sound and honest execu- tion of the trust. And the Vice Chancellor fur- ther remarked, that when a bill was filed the court would look into it of course, and inquire into the acts which had been done in the administration of the trust, and possibly might require the trustee to exercise the discretion under view of the court.^ ' Costabadie v. Costabadie, 6 Hare, 410; French r. Davidson, 3 Mad., 396; Dashwood v. Lord Bulkley, 10 Ves., 245; Clark v. Parker, 19 Ves., 12, 18; Korcuni v. D'CEuch, 2 Bcnn. Mo., (17 Mo.,) 98; see remarks per DISCRETIONARY POWERS OF TRUSTEES. 735 It is a general rule, that discretionary powers must be exercised in the manner prescribed in the trust instrument. If they are to be exercised by will, an execution by deed will not answer ; and vice versa ; and they must be executed according to the substantial intention and purpose of the party creating them ; and equity, in the construction of such powers, will not restrain and lessen them, by a narrow and rigid interpretation, nor extend them by a loose and general surmise as to what was in- tended should be performed. They are to be con- strued equitably, and the general intention must be carried into effect as for as possible.^ In accordance with the above principles, these discretionary powers can be exercised only by those persons to whom they are committed, or in whom they are confided by the trust instrument ; conse- quently they will not devolve upon the heir or per- sonal representatives of the original trustee, as an act of law ; and only in cases where they are so limited on the creation of the trust.^ In the case of Cole V. Wade,^ the Master of the rolls laid down the rule thus : " Wherever a power is of a kind that indicates a personal confidence, it must pri??ia facie be understood to be confined to the individual to Thompson, C. J., ia Jackson v. Veeder, 11 Johns., 169, 171; Cloud v. Martin, 1 Dev. St Batt. L. R., 397; Haynesworth v. Cox, Harp. Eq., 117; Lippencott v. Ridgway, 2 Stockt. Ch., 164; Melvin v. Melvin, 6 Md., 530. ' Hill on Trustees, 488; Alyn v. Belcher, 1 Eden, 132, and 1 Lead. Ca. Eq.. 304, and Am. notes; 4 Kent's Cora., 330. " Cole V. Wade, 16 Ves., 44; Osgood v. Franklin, 2 Johns. Ch., 19; Peter V. Beverly, 10 Peters' Rep., 533; Doyley v. Att'y Gen., 4 Vin., 485; 2 Eq. Ca., 6, 194; 7 Ves., 58, n.; Sugd. on Pow., 145; Eaton v. Smith, 2 Beav., 236. 736 DISCRETIONARY POWERS OF TRUSTEES. whom it is given ; and will not, except by express words, pass to others to whom, by legal transmis- sion, the same character may happen to belong.^ Under this rule, if the power be given to particu- lar persons by name, without adding words of survi- vorship, the power will be gone upon the death of one of the parties named.'^ But if it be given to them as a class of persons, as to " my trustees,'* "my sons," etc., and not by their proper names, the authority will survive, while the plural number remains f and when executors are donees of the power, it may be exercised by a single surviving executor.'* It is held, however, where the power is annexed to the office of trustees, and one or more of the trustees named, refuse to accept the office, the power may be exercised by those who do accept.* When the power is given to a trustee, his heirs, executors, or administrators, it will not be well executed by a devisee,^ or an assignee of the trus- tee ; ^ but it has been held that a power for a survi- ' As to strictness of the rule, see Barber v. Gary, 1 Kern., (11 N. T.,) R., 397; see also Soheir v. Williams, 1 Curtis, 479; see also Cole r. Wade, 16 Ves., Jr., 27; McKim v. Handy, 4 Md, Ch., 230. ' Co. Litt., 113; 1 Sugd. on Pow., 141, Gth ed. M Sngd. on Pow., 144; Gartland v. Mayott, 2 Vern., 105; Byam ». Byam, 24 L. J. Ch., 209; 19 Jur., 79, and 19 Beav., 58. ' 1 Sugd. on Pow., 244, 6th ed. ' Clark V. Parker, 19 Ves., 19; Worthington v. Evans, 1 S. & St., 165; Hawkins v. Kemp, 3 East, 410; Flanders v. Clark, 1 Ves., 9; Davoue v. Fanning, 2 Johns. Ch., 252; Matter of Stevenson, 3 Paige, 420; King v. Donnelly, 5 Paige, 46; Niles v. Stevens, 4 Denio, 399. ' Cole t;. Wade, 16 Ves., Jr., 27; Ockleston v. Heap, 1 DaGex. & Sim., 640. ' Bradford v. Belfield, 2 Sim., 264; see Earl Granville v. McNeile, 7 Hare, 156. DISCRETIONARY POWERS OF TRUSTEES. 737 ving trustee to appoint will be well executed by a continuing or sole aditig trustee.^ Where the will contains a direction which amounts to a direct gift in the first instance, but suhsequcntlij gives to the trustees a discretionary power, authorizing them to annul the gift, the donee will be entitled unless and until the trustees defeat the bequest by the exercise of their power. Thus, a testator directed his executors to appoint his grandson John, a partner, and gave him a legacy of .£4,000, when he should become a partner. By a subsequent codicil he declared that it should be en- tirely to his executors' discretion to appoint John a partner, notwithstanding the former direction; and if they should not think proper to appoint him, the legacy of £4,000 was to be void. One of the executors, -John's father, wished to make John a partner, the other two were against it. But the Lord Chancellor said, if the executors had united in declaring that John was unfit to be admitted, and without collusion or fraud, they had a right to exclude him ; and he must have lost the je4000. But as the circumstances were, and as they had made no such declaration, John was entitled to be admitted a partner, and also to his legacy.^ So also when a testator, after giving a legacy of je2,000 to his natural son, added a discretionary power for his executors to pay him the interest on the prin- cipal. The executors renounced probate and the » Sharpe v. Sliarpe, 2 B. & A., 405; Eaton v. Smith, 2 Beav., 236. ' Wainwright v. Waterman, 1 Ves., Jr., 311. 47 738 DISCRETIONARY POWERS OF TRUSTEES. legatee became insolvent. Sir William Grant, M. R., held, that as the bequest was in the first instance absolute, and the executors had not exercised their power, and having renounced could no longer exer- cise it, the legatee continued absolutely entitled/ These discretionary powers are usually in the nature of a trust, and are designed for the benefit of the declared objects, whether as a class or as individuals, and for that reason courts will endeavor to adopt a construction by which the object of the testator's bounty will take a vested interest in the gift. Thus, where there was a bequest of an annu- ity, to be applied for the maintenance and benefit of the legatee, "m such manner ^^ as the trustees in their absolute and uncontrolled discretion shall think fit, it was held by Sir K. Bruce, V. C, that the direction to apply the annuity for the legatee's benefit, being absolute, the whole was to be applied for that purpose; "that the trustees' discretion was as to the manner of the application, not whether there should or should not be any application at all.""^ When the class of discretionary powers pertain to the management of the trust estate, such as powers of leasing, selling, appointing new trustees, felling timber, etc., the court is more ready to con- trol the trustees in the exercise of their discre- tionary powers, than in matters of private opinion and judgment ; because on these matters of fact the ' Keates v. Burton, 14 Ves , 434; French v. Davidson, 3 Mad., 396. * Stephens v. Lawry, 2 N. C. C, 87} Cowles v. Brown, 4 Coll., 77. DISCRETIONARY POWERS OF TRUSTEES. 739 court is as competent as the trustees themselves to determine what is for the benefit of the estate; and hence, in these matters the court will readily enter into the consideration of the motives of a trustee in exercising or refusing to exercise such a power, and will not suffer him to exercise his discretion in an arbitrary and capricious manner.^ But in these, as in all other instances, it is the manifest intention of the donor, as gathered from the instrument cre- ating the power, that is to determine the limits of the discretion delegated ; therefore, if that instru- ment expressly declare that the discretion of the trustee in these matters is to be absolute and uncon- trolled, without responsibility to any, the jurisdic- tion of the court must be excluded.^ Where the discretionary power to be exercised, depends upon a matter of pure personal judgment, the trustees will be deemed to be the only persons competent to exercise the power, for they may have private and peculiar grounds for their opinions, into which the court may not inquire.'* Upon principles of public policy, conditions an- nexed to legacies, devises, or contracts, operating unduly in restraint of marriage, as well as con- tracts entered into for the purposes of promoting ' Mortimer v. Watts. 14 Beav., 616; Lord Milsington v. Earl Mulgrave, 3 Mad., 491; Hill on Trustees, 494; Webb r. Earl of Shaftsbury, 7 Ves., 480, 487. " Cocliran v. Paris, 11 Gratt., 356; Leavitt v. Beirne, 21 Conn., 2; Mel- sington v. Mulgrave, 3 Mad., 493. ^ Clark V. Parker, 19 Ves., 11; see Mesgrett v. Mesgrett, 2 Vern., 580; Daley v. Desbouverie, 2 Atk., 261; Cole v. Wade, 16 Ves., 27; Brereton v. Brereton, 2 Ves., 87, cited. 740 DISCRETIONARY POWERS OF TRUSTEES. marriage for a reward, or in fraud of one of the parties to the marriage, or their friends, are utterly null and void. Thus, all conditions annexed to gifts, generally prohibiting marriage, are " contrary to the common weal and good order of society." ^ Where a personal legacy is bequeathed to a person, upon marriage under twenty-one, or other reason- able period, with the consent of a person designated by the testator, such legacy will not vest unless the proper consent be obtained ; because it is a prece- dent condition, and imposes no other restraint upon the liberty of marriage than was before imposed, or allowed by law.^ In the case of Stackpole v. Beaumont," the testa- tor devised his real estate in remainder to the use of L. W. or such person, if any, with whom she should first intermarry, *' if before twenty-one, then with the consent of his trustees or the survivor of them," for their joint lives and the life of the sur- vivor, &c. Near the end of his will he gave to L. W. jelO,000, " payable and to be paid to her as follows: — je5,000 upon her marriage with such con- sent as aforesaid, and je5,000 within two years next afterwards." L. W., while an infant and a ward of court, eloped, and was married in Scotland with- * Rishton v. Cobb, 9 Sim., 615, 619; Morley v. Rennoldson, 2 Hare, 570; Connelly v. Connelly, 7 Moore P. C, 438: or where it leads to a probable prohibition of marriage, Keily v. Monck, 3 Ridg. P. C, 205; Long v. Den- nis. 4 Burr., 255; Waters v. Tazwell, 9 Md., 291; Maddox v. Maddox, 11 Gratt., 804; Scott v. Tyler, 2 Bro. C. C, 431, and 2 Lead. Ca. Eq... 106, 183. ' Hemmings v. Munkley, 1 Bro. C. C, 304, and 1 Cox, 38; Stackpole v. Beanmont, 3 Vcs., 89; Scott v. Tyler, 2 Bro. C C, 431; see also Clifford V. Beaumont, 4 Russ., 325; Knight v. Cameron, 14 Ves., 389. DISCRETIONARY POWERS OF TRUSTEES. 741 out the consent of the trustees. It was held that she was not entitled to the legacy. Lord Rosslyn said: " Confined to cases where the restraint operates only up to the age till which, by the law and policy of the country, consent is necessary, I have no difficulty to say there is no authority to lead the court to pronounce a proposition so repug- nant to that law, as that such a condition is invalid. The question is not whether any forfeiture has been incurred, but whether the parties to whom the legacy is given, have put themselves in a situa- tion to answer the description of the person to take. There is no gift here but in the direction to pay, for I cannot stop in the middle of the sen- tence. He gives her jelO,000 ; that is, in effisct, two sums of .£5,000, one payable upon her marriage with consent. She has not married with consent ; she has married without it, etc. But where the condition in restraint of marriage is general, and subsequent, the condition is altoge- ther void, and the party retains the interest given to him, discharged of the condition.^ But where the property is limited to a person until marriage, and upon marriage, then over, the limitation is good.'^ Where an interest in a legacy is vested in a party, and there is a subsequent provision for divesting that interest in case the legatee marries without the required consent, and there is no gift * Morley v. Rennoldson, 2 Hare, 579; Lloyd v. Branton, 3 Mer., 117. 'Scott V. Tyler, 2 Bro. C. C.,431; Jordan ». Holkham, Ambl., 209; Barton v. Barton, 2 Vern., .308. V42 DISCRETIONARY POWERS OF TRUSTEES. over to take effect on the marriage without such consent, the condition will be treated as one in terro- rem, and will not be enforced/ But if the legacy be given over on the fliilure of the donee to comply with the condition, the court will recognise the interest of the party who is entitled under the limitation over, and the forfeiture will be enforced in his favor, if the donee marry without the re- quired sanction."^ In the case of Dashwood v. Lord Bulkeley,"^ the testatrix by her will gave and be- queathed jel2,000 to trustees, in trust to apply out of the interest unto her granddaughter, Elizabeth Callander, the sum of je250 a year for her mainte- nance and education, until she should attain the age of twenty-one years ; the residue of the divi- dends to accumulate for her benefit : and when she should have attained the age of twenty-one or be married, in trust to apply the dividends of the funds in which the said sum of jel2,000 and the savings should be invested for the benefit of the said Elizabeth Callander during the residue of her life, for her sole and separate use, exclusive of her husband, &c., and after her death with limitation over to any children of hers living at the time of her death, &c. ' Hill on Trustees, 496, citing Semphill v. Hayley. Prec. Ch., 562; Gar- rett V. Pretty, 2 Vern., 293; S. C, 3 Mer., 120; Wheeler v. Bingham, 3 Atk., 864; Lloyd v. Branton, 3 Mer., 117. But this doctrine only applies to pecuniary legacies, and not to a charge on real estate, see Harvey u. Ashton, 1 Atk., 379; Reynel v. Martin, 3 Atk., 333; Berkley v. Rider, 2 Ves., 535; Stackpole v. Beaumont, 3 Ves., 89. " Dashwood v. Lord Bulkeley, 10 Ves.. 230; Scott v. Tyler, 2 Bro. C, C, 431, and 2 Lead. Ca. Eq., 106, 183; Daley v. Desbouverie, 2 Atk., 261. DISCRETIONARY POWERS OF TRUSTEES. 743 The testatrix also gave to the trustees a further sum upon further trusts, &c., for the said Elizabeth ; and it was provided and declared that if the said Elizabeth Callander should at any time marry, either during her minority or after she should attain her age of twenty-one years, without the consent in the writing of the testatrix, said execu- tors, in such case, instead of being permitted to receive the whole dividend or annual produce of the bequests therein before given to or in trust for her as aforesaid, the testatrix thereby directed that the sum of ^6400 only should from thenceforth be paid to her thereout, during the residue of her life, for her separate use ; and that, in such case, the residue of the dividends or annual produce of all such bequests so given for her benefit, as aforesaid, should, after marriage, without such consent, accu- mulate for the benefit of her children or other persons, who, under the will, should become entitled to the capital upon the death of Elizabeth Callan- der, &c. The testatrix made similar dispositions in favor of others, with similar limitations over in the event of death without children, etc.; and, finally, in such event of failure, &c., she disposed of the said jel2,000 upon other trusts. She appointed four trustees — Lord Bulkeley, Sir Mathew White Ridley, George Bogg and Mr. Keate, and by a codi- cil, taking notice that she had the greatest opinion of the integrity of her executors, and not the least doubt of their care and attention, yet for reasons assigned,^ she thought it more safe to have the ' 10 Ves., 232. V44 DISCRETIONARY POWERS OF TRUSTEES. direction of the Court of Chancery, and, therefore, directed a bill to be filed. The testatrix died in 1789, and in 1793 George Dashwood paid his ad- dresses to Miss Callander, who had not yet attained twenty-one years of age ; and his solicitor, by his direction, sent a letter to Bogg, one of the trus- tees, dated 16th November, 1793, declaring his purpose to settle <£6,000 on his intended marriage with Miss Callander, &c. Bogg communicated this to the three other trustees. They all approved the proposal, and two of them. Lord Bulkeley and Sir Mathew White Ridley, wrote to him their approval. The proposal of George Dashwood being wholly approved, a settlement according to its terms was drafted and sent to Sir John Dashwood and his son ; but Sir John being suddenly taken ill, and dying soon afterwards, the settlement was not executed. After his father's death, Mr. Dashwood refused to ececute any settlement. After several attempts to have the settlement executed, and Dashwood per- sistently refusing to execute, the trustees notified him of the withdrawal of their consent. Miss Callander attained the age of twenty-one, and was married the day after to Mr. Dashwood without any settlement. But shortly after, by indentures, he settled je60 per annum Long Annuities, jel,8G5, Is. Sd. three per cent.. Consolidated Bank Annuities, according to his proposal. Under these circumstances the bill was filed by Mr. and Mrs. Dashwood, insisting that the consent of the executors was not necessary ; that if it was DISCRETIONARY POWERS OF TRUSTEES. 745 the marriage was with their consent; and that hav- ing once given their consent, they could not with- draw it, offering to complete the settlement by settling .£3,000 more, and therefore praying that the plaintiffs may be declared entitled under the bequest of the sum of £12,000, &c. ; or, if the court should be of opinion that the marriage was without consent, claiming the £400 a year. The trustees, by their answer and depositions, being examined by the plaintiffs, admitted the letters stated in the bill, and their approbation of the intended marriage, and consent thereto, upon the terms of Mr. Dashwood's proposal. By a decree, pronounced by Lord E-osslyn, on the 25th April, 1796, it was declared that the plaintiff, Elizabeth Dashwood, was only entitled to the £400 a year under the will. After the death of Mr. Dashwood his widow presented a petition for a rehearing — insisting that, under the circum- stances, by her said marriage she did not forfeit any of the bequests under the will. Lord Eldon, after hearing the arguments of Mr. Romilly and Mr. Martin, in support of the petition of rehearing, remarked, " If there ever was a case in which it was reasonable that the trustees should not consent, this is the case. The husband having obtained their consent by proposing a settlement, and immediately before the marriage refusing to make any settlement, they were justified in saying they would not consent, unless he would make a previous settlement ; which is the expression both of the letters and depositions. There are many 746 DISCRETIONARY POWERS OF TRUSTEES. cases in which the trustees might, notwithstanding he was bound to make a settlement, refuse to con- sent without a previous settlement. It is impossi- ble not to have a wish to relieve this lady, but I do not see my way to it. I will read the cases, and then say whether it is necessary to hear the defend- ants." But after reading the cases and hearing the defendants, Lord Eldon could find no ground for reversino- or changing the former decree of Lord Rosslyn. His Lordship held, that it would be very dangerous as a general principle, to hold, that, if at a particular time a person in loco parentis, as guar- dian, upon a conscientious sense of duty, thinks himself required to give consent, and previously to the marriage is duly informed of circumstances that ought to have operated at first to make him with- hold his consent, if he has once given it, he shall not afterwards alter his mind. The cases have gone this length ; that if consent is once given, it shall not be withdrawn by adding terms, that do not go to the propriety of giving the consent.'' He thought the case of Lord Strange v. Smith,' a very different one. There the mother of the lady seemed to be of a very perverse disposition, and the moment the propositions were acceded to she said her daughter should never marry into that family. " Under these circumstances the Lord Chancellor was of opinion, and rightly, that a consent having been * Ambl., 263; Mesgrett v. Mesgrett, 2 Vern. 580; Campbell t>. Lord Netterville, cited 2 Ves., 534; Dashwood v. Lord Bulkeley, 10 Ves., 243; see also Knight v. Cameron, 14 Ves., 389; Holmes v. Lysight, 2 Bro. P. C, 261; Gillett v. Wray, 1 P. Wms., 284. DISCRETIONARY POWERS OF TRUSTEES. 747 given without conditions, everything reasonable agreed to, no fair objection, either of a moral or pecuniary nature, it was a fraud upon the affections of the daughter to retract the consent merely from caprice and perverseness." ^ Where the testator, by his Avill, requires that his daughter, who is single at the date of his will, shall obtain the consent of his executors or trustees to her marriage ; but the daughter afterwards marries in the lifetime of the testator and with his appro- bation, the condition in the will is dispensed with.^ Where the condition of obtaining the consent has become impossible by the death of the person whose consent before marriage was necessary, such impos- sibility will become a sufficient excuse and the mar- riage may take place without a forfeiture.^ So, also, where a legacy was bequeathed to a lady upon con- dition of her marrying with the consent of two persons, who were also executors ; on the death of one of them, the condition having become impos- sible, it was held that she might marry without the consent of the survivor." Where the consent of an executor to the marriage was made necessary, but the executor renounced, and administration was granted to an administrator cum testamento annexo. ' See preceding note. ' Crommelin v. Crommelin, 3 Ves., 227; Wheeler r. Warner, 1 S. & St., 304; Smith v. Cavvdrey, 2 S. &. St., 358; Clark v. Berkley, 2 Vern., 720; Hill on Trustees, 497. ' Per Lord Hardwick in Graydon v. Hicks, 2 Atk., 16; and see Aislabie V. Rice, 3 Mad., 256. * Peyton v. Bury, 2 P. Wms., 626; but see Jones v. Earl of Sufifolk, 1 Bro. C. C, 529. 748 DISCRETIONARY POWERS OF TRUSTEES. and a marriage took place without any consent, Lord Hard wick was of the opinion that the legacy was forfeited; that the word "executor" was a des- cription of every person who should be adminis- trator; and that it was a power not annexed to the office of executor, but independent from the rest of his duties as executor/ But Avhere consent is necessary to a marriage, as a condition precedent, a subsequent approbation by such persons will be immaterial, because it cannot amount to a performance of the condition, or dis- pense with the breach of it. Lord Hardwick, in a case where the marriage was to take place with the consent or approbation of the trustee, who did not give his approbation until a month after the mar- riage, struggled hard to distinguish between consent and approbation ; but Lord Thurlow denied the doc- trine. He could not see why a subsequent approba- tion, if sufficient eleven months after, would not do at any time during the whole life of the trustee, during which time it must be quite uncertain whether the marriage was had in conformity with the condi- tion or not.^ Where a long time has been permitted to elapse after a forfeiture is said to have been incurred by marrying without consent, before any claim has been insisted on, the onus probandi will be upon the * Graydon v. Hicks, 2 Atk., 16. ' Reynish v. Martin, 3 Atk., 830; Fry v. Porter, 1 Ch. Ca., 138, and 1 Mod., 300; Lord Hardwick's opinion in Burletan v. Humphrey, Amb., 256; Lord Thurlow, as reported by Lord Eldon, in Clark v. Parker, 19 Ves., 21; but see Berkley v. Ryder, 2 Ves., 233. DISCRETIONARY POWERS OF TRUSTEES. ' ^9 one asserting the forfeiture. Thus, where a legacy was given, conditional on the consent and appro- bation of the trustees, and the party entitled in default of consent, made no claim until twenty-eight years had elapsed after the marriage, and the trus- tees and the legatee were all dead, it was held by Sir J. Romilly, M. R., although there was no dis- tinct proof of consent, yet it was to be presumed under the circumstances of the case; and his honor further remarked, "the ground I proceed upon is, that after the lapse of twenty-eight years from the marriage, and after the death of the trustees, every- thing is to be presumed in favor of the legatee. If this "Contest had taken place immediately after the marriage had occurred, and the fact before me had been that the trustees knew nothing about it, and gave their approbation subsequently, I should be of the opinion that the legacy was forfeited."' If the consent of the trustee be not required to be in writing, it may be an implied or tacit consent, which may be inferred from the conduct of the trustees, as where they have been privy to and have encouraged, or, at any rate, have not discouraged the courtship,^ or it may be a general license, giving the party "free leave and consent to marry whom- soever she choosed";=^ and where the consent is required to be given in writing, unless the particular > Re Birch, 17 Beav., 358. ' Lord Strange v. Smith, Amb., 263; Mesgrett r.Mesgrett, 2 Vern., 580; D'Aguila V. Drinkwater, 2 V. & B., 225; see also Clark t;. Parker, 19Ves., 19 18 19; Dashwoodi). LordBulkelcy, 10 Ves., 243. "^ Mercer v. Hall, 4 Bro. C. C, 328; Pollock v. Croft, 1 Mcr., 181. 750 POWERS OF SALE. manner be specified in the trust instrument, any informal or incomplete writing, signed by the pro- per party, in which the consent is sufficiently ex- pressed, will be sufficient.* Section II. POAVERS OF SALE. A power of sale may be given, either as append- ant to the legal estate, and to take effect out of it ; or it may exist as a mere collateral authority, un- accompanied by any legal interest in the property to be sold. In the latter case, if the trust be cre- ated by will, the legal estate will descend to and remain vested in the heirs of the testator until di- vested by the execution of the power, whereupon it will pass to the vendee.'^ The general rule is, where lands are devised to executors to sell, the freehold passes to them by the devise, coupled with the power ;^ but when there ' Clark V. Parker, 19 Ves., 18, 19; Daslnvood v. Lord Biilkeley, 10 Ves., 243; Lord Strange v. Smith, Arab., 263; Worthington v. Evans, 2 S. & St., 165; see also Daley v. Desbouverie, 2 Atk., 261 ; D'Aguilar v. Drink- water, 2 V. &. B., 225; Merry v. Ryves, 1 Eden, 1 ; Le Jeunc v. Budd, 6 Sim., 441. ' Hill on Trustees, 471; Earl of Stafford v. Buckley, 2 Ves., 179; Warne- ford V. Thompson, 3 Ves., Jr., 513; 1 Sugd. on Pow., 115, (6th ed.) ; see Forbes V. Peacock, 11 Sim., 152; 3 N T. Rev. Stat., 20, sec. 75, (5th ed.) ; Vail V. Vail, 4 Paige, 317; Allen v. DeWitt, 2 Corns., 276; Farmers' Loan and Trust Co. v. Carroll, 5 Barb., 613; Lang r. Ropke, 5 Sand., 363; Germond v. Jones, 2 Hill, 569. ^ 4 Kent's Com., 320; Howell v. Barnes, Cro. Com., 382; Yates tJ.Comp- ton, 2 P. Wms., 308; Bergen v. Bennett, 1 Cai. Ca. Er., 16; Jackson v. Schauber. 7 Cow. Rep., 187; Peck r. Henderson, 7 Yerg., 18; Peter v. Beverly, 10 Pet., 532; Tainter v. Clark, 13 Mete, 220; Jackson v. Burr, 9 Johns. R., 104; Zebach v. Smith, 3 Binn., 69; Richardson v. Woodbury, 43 Maine, 206; see also Shippen's Heirs v. Clapp, 29 Penn. St. Rep., 265; Wilburn v. Spofford, 4 Sneed, 698. POWERS OF SALE. 751 is a devise of lands to be sold by the executors, without any words of direct gift, or when the devise is, ''that they shall sell,'' they will be in- vested with a mere poiuer, unaccompanied with the legal estate.^ In New York, says Chancellor Kent, " the Re- vised Statutes have interfered with these distinc- tions, though they seem not to have settled them in the clearest manner. They declare" that a devise of lands to executors, or other trustees, to be sold or mortgaged, when the trustees are not empowered to receive the rents and profits, shall vest no estate in the trustees ; but the trust shall be valid as a power, and the land shall descend to the heirs, or pass to the devisees of the testator, subject to the execution of the power. If the construction of this section be, that a devise of the lands to executors to be sold, does not pass an interest without a spe- cial authority to receive the rents, then the estate does not, in any of the cases already mentioned, pass to the executors, and the devise is only a power simply collateral. The English rule is, that an estate may be conveyed to trustees to sell, with a provision that the rents and profits be in the mean- time received by the party who would have been entitled if the deed had not been made, and yet the > 4 Kent's Com., 320; Ferebec v. Prockter, 2 Dev. & Batt., 439; S. C, 3 Dev. & Batt., 496, and 1 Ired. Eq., 123; Patton v. Crow, 26 Alab., 426 Haskell v. House, 3 Brev., 242; Thompson v. Gaillard, 3 Rich Eq., 418 Marsh v. Wheeler, 2 Edw. Ch., 150; Taylor v. Benham, 5 How., 269 Allen V. DeWitt, 3 Corns., 276; Schwartz's Estate, 14 Peun. St. Rep., 47 Guyer V. Maynard, 6 Gill. & John., 420. " 1 Rev. S., 729, sec. 56; 4 Kent's Com., 321. 752 POWERS OF SALE. trustees will take a fee."^ "If the trust be valid as a power then, in every such case^ the lands to which the trust relates, remain in or descend to, the persons entitled, subject to the trust as a power. The statute authorizes express trusts to be created to sell lands for the benefit of creditors, or for the benefit of legatees, or for the purpose of satisfying charges.^- These are the very trusts or powers relative to executors which we are considering; and by the same statute* every express trust valid as such in its creation, except as therein otherwise pro- vided, vests the w^hole estate in the trustees, subject to the execution of the trust. The conclusion would seem to be, that, as a general rule, every ex- press trust created by will to sell lands, carries the fee with it ; but if the executors be not also em- powered to receive the rents and profits, they take no estate, and the trust becomes a power w^ithout interest.^ This restriction of the general rule ap- plies to the case of a devise of lands to executors, to be sold or mortgaged ; and the usual case of a direction in the w411 to the executors to sell lands to pay debts, or legacies, is not within the liberal terms of the restriction ; and it may be a question whether it be one of the cases in which, according to the 60th section above mentioned, ' the whole estate is in the trustee.' " * Keene v. Deardon, 8 East Rep., 248. But the law in Ohio differs, see Dabney v. Manning, 3 Ohio Rep., 321. '1 R. S.jN. Y., 729, sec. 59. ' 1 R. S., N. Y., 729, sec. 55; also Gree v. Dikeman, 18 Barb., 535. *1 R. S..N. Y., 729, sec. 60. ' Dominick v. Michael, 4 Sandf. Ch. Rep., 374. POWERS OF SALE. ' ^^ In Pennsylvania/ executors with a naked power of sale over real estate, take and hold the same interest therein, and have the same powers and authorities for all purposes of sale and conveyance, and also of remedy by action or otherwise, as if the same had been devised to them to be sold. The executors take the legal estate, and they may brmg actions for rent falling due, or for injuries to real estate done after the death of the testator, without reference to any immediate or intended exercise of their power/ No precise form of words is necessary or requi- site for creating a power of sale; being a mere declaration of trust, any words or expressions which show an intention to create such a power will be sufficient.^ So if a sale is necessary to the due exe- cution of the trust, it will be inferred that the tes- tator intended to give to the person empowered every authority necessary for his declared purpose. Thus, trustees will take a power of sale by impli- cation, under a trust for the payment of debts; because such a power is necessary to the due execu- > Act ofl834, sec. 13, Dunlop Dig., 511; Carpenter v. Cameron, 7 Watts, 51- Cobb V. Biddle. U Penn. St. Rep.. 444; Blight's Ex'ors v. Evvmg, 26 Penn St. Rep., 135; but see Blight v. Wright. Philad. Rep., 549, Dist. Ct. Philad For law in Virginia, see R. S., 1849, tit. 33. ch. 116, sec. 1, and also Mosby v. Mosby, 9 Gratt., 584. In New Jersey, see SnowhiU v. Snow- hill, 3 Zab., 447. » Sugd. on Pow., 116. 3 2Spence Eq. Jur., 366; Going r. Emery, 16 Pick., Ill ; Winston v. Jones 6 Alab., 550. But a mere direction to divide is not sufficient: Craig r. Craig, 3 Barb. Ch., 76; see also Moore t-. Lockett, 2 Bibb., 69, and Clark V. Riddle, 11 S. & R., 311; Morton v. Morton, 8 Barb., 18. 48 754 POWERS OF SALE. tion of the trust.* So, also, where there is a direc- tion to divide and pay over the shares of the legatees, where a literal division is impracticable, a power of sale will be implied for such purpose.^ This power of sale, as a general rule, can be exer- cised only by those to whom it is expressly given; at least such is the common law doctrine, as well as that taking effect under the statute of uses.^ But it sometimes happens that a testator directs his estates to be sold for certain purposes, without de- claring by whom the sale shall be made. In the absence of such a declaration, if the fund be distri- butable by the executor, he will have the power of sale by implication..'* But where a testator be- queathed an estate to his wife for life, and directed that after her decease, the estate should be sold to the highest bidder, by public auction, and the money arising from such sale be disposed of amongst certain persons named in his will, and he appointed his w^ife and another person his executors, it was held that the power was not given by implication to the executors, because they had nothing to do » Wood V. Wliite, 4 M. & Cr., 481; Earl of Bath v. Earl of Bradford, 2 Ves., 590; Ball v. Harri.s, 8 Sim., 48o, and 4 M. &. Cr., 266; Forbes v. Peacock, 11 Sim., 152; per Kelson, C J., Bogert v. Hertell. 4 Hill, 492, 500; Meakings ij. Cromwell, 1 Seld., 136; Williams v. Otey, 8 Humph., 563; Goodrich v. Proctor, 1 Gray, 567; but see Linton v. Boley, 12 Mo., 567, as to what will not authorize a sale, and also Munday, r. Vawter, 3 Gratt., 518. » Winston v. Jones, 6 Alab., 5-50. ^ Hill on Trustees, 472; Xoel v. Harvey, 29 Miss., (7 Gush.,) 72. * 1 Sugd. on Pow., 134; Bogert v. Hertell, 4 Hill, 492; Borland v. Dor- land, 2 Barb., 63; Meakings v. Cromwell, 1 Seld., 136; see also Forbes v. Peacock, 11 Mees. & Wels., 630, and 12 Sim., .528; also Tylden v. Hyde, 2 Sim. &. St., 238; see also Putnam Free School v. Fisher, 30 Maine, 528. POWERS OF SALE. 755 with the produce of the sale, nor any power of dis- tribution with respect to it.^ It was laid down in the case of Meakins v. Cromwell,*^ that where the will was silent as to the persons who should sell the land, a power was given by implication to the execu- tors to make the sale; and that such power was well executed by a deed from one executor, the others not having qualified. The reason given for this decision is, that it belongs to the executor to pay the debts and legacies, and the testator having directed that to be done by means of a sale of lands, the executor should have the power to sell as inci- dent to the accomplishment of the testator's main purpose. In New York, it is provided by statute that where the testator omits to designate a person to execute the power, its execution shall devolve upon the Court of Chancery ; ^ but it is held, also, that this provision has no application to cases where a person is impliedly designated.* But where a testa- tor authorized his executors to perform his desires and requests hereinbefore expressed, and then, by a subsequent clause, created a power in trust without any specification of a donee, it was held that the executors did not take by implication, but that it devolved upon the Court of Chancery.^ > Bentham r. Wiltshire, 4 Madd., 44; Patton r. Randall, 1 Jac. & Walk., 189; AUum v. Fryer, 3 Adol. & Ell., N. S.. 442; Drayton v. Drayton, 2 Dcsaus. Ch. R., 250, (n.) ; Schoolbred v. Drayton, 2 Desaus. Ch. R., 246; but see Davoue v. Fanning, 2 Johns. Ch. R., 252. * Meakins v. Cromwell, 1 Sold., 136; see the opinion of Ch. J. Ruggles, 140, 141. " 1 Rev. Stat., 734, sec. 101. * Meakins v. Cromwell, 2 Sand., 512, affirmed 1 Seld., 136. ' Crocheron v. Jaques, 3 Edw., 207. 756 POWERS OF SALE. Where real estate is devised to executors to sell, &c., and a part of them only undertake the execu- tion of the will, a sale by those who do accept and take upon them the administration and charge of the will, is as effectual as though all had joined.* Where the power is given to several persons by name as trustees, and the survivors or survivor of them, and the heirs of the survivor, the power is well exercised by the only acting trustee, or his heirs, in case the others renounce the trust.^ A naked power or authority, without an interest, given to several persons, does not survive ; and it was a rule of common law that, if the testator, by his will, directed his executors, by name, to sell, and one of them died, the others could not sell, because the words of the testator could not be satis- fied.^ But where the words of the testator can be satisfied, this rule will be relaxed. Thus, w^here three executors are appointed, and the devise is, that the estate shall be sold by the executors generally, and one of them dies, the survivors may sell, because the plural number remains.* ' Mackintosh v. Barber, 1 Bing., 50; Roseboom v. Mosher, 2 Denio, 61; 2 R. S. N. Y., 109, sec. 55; Taylor v. Morris, 1 Corns.. 341; Wasson v. King, 2 Dev. Batt , 262; Geddy v. Butler, 3 Munf., 345; Woods v. Sparks, 1 Dev. & Batt., 389; Ross r. Clare. 3 Dana Ken. Rep., 195; 4 Kent's Com., 325; McDowell v. Gray, 29 Penn. St. Rep., 211. * Hawkins v. Kemp, 3 East, 410; Cook v. Crawford. 13 Sim., 91 ; Con- nover v. Hoffman,l Bosw., (N. T..) 214. =■ Co. Litt., 112, 113; 4 Kent's Com., 325; Osgood r. Franklin, 2 Johns. Ch. Rep., 19, affirmed 14 Johns., 527; Peter v. Beverly, 10 Pet. U. S.Rep., 533; 1 Sugd. on Pow., 143, 144. " Sugd. on Pow., 144; Garbland v. Mayot, 2 Yern., 105; 1 N. Y. R. S., 735, sec. 112. Powers referred to in N. Y. R. S.. Vol. I., 731 to 735, relate exclusively to lands. POWERS OF SALE. '^1 It is well established, that where a power of sale is given to several executors, virtute officii, or is given to them by name, but is coupled with an interest or trust, the power may be exercised by the survivor.^ In many of the States provisions are made by statute authorizing the survivors of several execu- tors to exercise even naked powers given by will. Thus, in Pennsylvania,^ in Missouri,'^ Arkansas,^ Alabama,' New Jersey,' New York," Ohio,- and Delaware,^ Mr, Sugden, in his work on Powers,^" states the principles governing in the determination of these questions, thus : 1. "Where a power is given to two or more by their proper names, who are not made executors, it will not survive without express words. ' 4 Kent's Com,, 326; Osgood r- Franklin, 2 Johns. Ch.. 19; 'SWes v. Stevens. 4 Denio, 399; Jackson r. Burtis, 14 Johns., 391; Sharp r. Pratt, 15 Wend., 610; Zebach c. Smith, 3 Binn., 69; Wood r. Sparks, 1 Dev. &. Batt., 389; Peter r. Beverly, 10 Pet.. 532; 1 How. U, S., 134; Putnam Free School r. Fisher, 30 Maine, 526; Miller r. Meetch, 8 Barr, 417; Coy- kendall r. Rutherford, 1 Green Ch., 360; Robertson v. Gaines, 2 Humph., 367. As to what interest is requisite to enable a surviving trustee, exec- utor, etc.. to exercise the power of sale, see Watson r. Pearson, 2 Exch., 680, and American note; Gray r. Linch. 8 Gill., 403. ' Dunlop P. Dig., 519, act 1834, sec. 13; act March 12. ISOO, declared to be in force by act of 19 April, 1856, Bright. Supp., 1170; act of 3 May, 1855, sec. 2, Bright. Supp-, 1156. ' Mo. R. S.. chap. 3, art. 3, sec 1. * Rev. St. Ark., chap. 4, sec. 144, ' Aik. Dig., 450; Lucas r- Price, 4 Alab., 683. * X. J. Rev. Code, tit. 10, chap. 7, sec 19. ' 1 R. S., 735, sec. 112; Osgood r. Franklin, 2 Johns. Ch., 1, and 14 Johns,, 527. ' Ohio R. S., chap. 129, sec. 59. 60. * Del. Rev. Code, chap. 90, sec. 17, ^ 1 Sugd, onPow., 146. 758 POWERS OF SALE. 2. " Where the power is given to three or more generally, as to 'my trustees,' 'my sons,' &c., and not by their proper names, the authority will sur- vive while the plural number remains. 3. " Where the authority is given to ' executors,* and the will does not expressly point to a joint exercise of it, even a single surviving executor may execute it ; but, 4. " Where the authority is given to them nomi- natim, although in the character of executors, yet it is at least doubtful whether it will survive. 5. " But where the power to executors to sell arises by implication, the power will equally arise to the survivor." And he further adds : "I shall close this subject Avith Sir Edward Coke's advice, to give the authority to the executors or the sur- vivors, or survivor of them, or to such or so many of them as take upon them the probate of the will, etc." Thus, under the fourth rule stated as doubtful by Mr. Sugden, a power of sale was reserved in a set- tlement to three trustees by name and their heirs, the Court of Kings Bench held that two surviving trustees could not execute the powxr.^ But in a recent case where a testator devised all his residu- ary estate to three persons by name, and to their respective heirs and assigns, in trust, that they, the ^'' above named'' devisees "and their respective heirs and assigns" should sell, it was held by the » Townsend v. Wilson, 1 B. & Aid., 608 and S. C, 3 Madd., 2G1 ; see also Hall v. Dewes, Jac, 189. POWERS OF SALE. 759 Vice Chancellor that, on construction of the will^ the two survivors of the three devisees had power to sell, and he rejected the word " respective" as inconsistent with the general intention/ In respect to the first rule above stated, it has been held that it does not apply to business of a public or judicial nature ; that, in such cases, a power entrusted to several may be executed by a majority.^ It has been laid down that, where the will gives no positive direction to sell, but refers the power to sell to the judgment and discretion of the executors, all must join in the sale.^ But, in New York it does not seem to be necessary that all should qualify or act, though the powers of the executors are, discretionary."^ As a general rule, administrators, cum testament^' annexo, succeed only to the ordinary administration! duties and authorities, and consequently canoiot exercise any trust or power given by will with, reference to real estate.^ But this rule, as to the * Jones V. Price, 11 Sim., 557. ' Chambers v. Perry, 17 Alab., 726. ' Moore, 61, pi. 172; Sir William Grant, in Cole v. Wade. 16 Yes., 27, 45, 46, 47; Walter v. Maunde, 19 Yes., 424; Clay v. Hart, 7 Dana Rep., 8; Wooldridge v. Watkins, 3 Bibb., 350; see also Meakings v. Cromwell, 1 Seld. R., 136; Mallet v. Smith, 6 Rich Eq., 22; Bartlett v. Sutherland, 2 Ciish., 401. * Taylor v. Morris, 1 Corns., 341; see also Wood v. Sparks. 1 Dcv. & Batt.. 389, and Chanet v. Yilleponteaux, 3 McCord, 29; but see Shelton v. Homer, 5 Mete, 462; Ross v. Barclay, 18 Penn. St. Rep. ^ 179; see Lane v. Debenham, 17 Jur., 1005; Byam v. Byam, 24 L. J. Ch.,209, and 19 Beav., 58. ' Conklin v. Egerton, 21 Wend., 430; but see S. C, 25 Wend. Rep., 224, and also Gilchrist v. Rea, 9 Paige, 72; Beekman v. Bonsor, 23 N. Y. Rep., 304; but see Dominick v. Michael, 4 Sandf. S. C R., 374; Tainter ■». 760 POWERS OF SALE. powers of sale, has been altered in many of the States by statute ; ^ yet, in some of them, it is held still not to extend to powers of sale except for payment of debts, and not for the execution of trusts for collateral purposes, or for the exercise of discretionary powers.^ "Where a testatrix had authorized and empowered her trustees to sell lands where the major part of her children should recommend and advise the same, it was held that the consent of the majority of those living at the time of sale was sufficient to satisfy the words of the w^ill,^ Although trustees may not delegate these powers unless expressly authorized, yet it is understood they may employ a solicitor or other agent to con- duct the usual details of the sale;'* but the agent's Clark, 13 Mete, 220; Armstrong v. Park, 9 Humph., 195; Knight v. Loomis, 30 Maine, 208; Ross v. Barclay, 18 Penn. St. Rep., 179; Lucas v. Doe, 4 Alab., 679; Wills v. Cowper, 2 Ohio, 124. * In North Carolina, see R. S., ch. 46, sec. 34; Hester v. Hester, 2 Ired. Eq., 330; Smith v. McCrary, 3 Ired. Eq., 204. In Pennsylvania, see Dun- lop's Dig., 530; act of 1834, sec. 67; acts of 1800 and 18oG, Bright. Supp., 1169; Com. v. Forney, 3 W. & S., 357; but see Ross v. Barclay, 18 Penu. St. Rep., 179. In Missouri, R. S., art. 3, ch. 3, sec. 1. In Mississippi, see H. & H. Dig., 413. In Ohio, see R. S., ch. 129, sec. 59. In New Jer- sey, see R. S., tit. 10, ch. 7, sec. 19. In Arkansas, see R. S., ch. 4, sec. 144. In Vermont, see R. S., tit. 12, ch. 46, sec. 2. In Virginia, see Rev. Code, p. 545; Brown v. Armistead, 6 Rand., 594. In South Carolina, see 5 Coop. Stat., 15; Drayton v. Grimke, 1 Bail. Eq., 393. 'Ross V. Barclay, 18 Penn. St. Rep.. 179; Brown r. Hobson, A. K Marsh, 381; Woodridge v. Watkins, 3 Bibb., 350; Montgomery v. Miljiken, Smedes Sl Marsh Ch., 498, and 5 Smedes & Marsh, 188. But where the power of sale is imperative, and no peculiar personal confidence reposed. Brown v. Armistead, 6 Rand., 594; see also Taylor v. Morris, 1 Corns., 341. * Soheiri'. Williams, 1 Curtis C. C. Rep.. 479. * Ex parte Belchier, Ambl., 218; Ord v. Noel, 5 Madd., 498; Black v. Erwin, Harp. L. Rep., 411; Pearson v. Jamison, McLean, 199; Newton v. Bronson, 3 Kern., 587; Berger v. Dufif, 4 Johns. Ch. Rep., 868. POWERS OF SALE. '^1 authority must be in writing and signed by the trustees/ or at least ratified by an instrument in writing.'^ In Ilawley v. James,^ the Chancellor decided that a general authority to sell and convey lands belong- ing to the estate, or to contract absolutely for the pale of such lands, could not be given by trustees wdth power of sale : but, he observed, " they may en- trust an agent with an authority to make conditional sales of land lying at a distance from the place of residence of the trustees, subject to the ratification of the trustees; and they also may empower him to make and execute valid conveyances of land thus sold, upon a compliance with the terms of sale, after such sales have been so ratified by them. The pur- chaser, in such case, however, would probably be bound to show that this precedent condition had been complied with. The better course in a case of this kind, therefore, is to entrust the agent with a discretionary power to contract, subject to the ratification of the trustees, upon his report of the facts ; and that they should themselves execute the conveyance, when the terms of sale have been com- plied with, and transmit it, properly acknowledged, to the agent to be delivered to the purchaser." As to the execution of powers they are strictly construed. They are incapable of admitting any " Mortlock V. Buller, 10 Ves-, 311. ' Newton v. Bronson, 3 Kern., 587. ' Hawley v. James, 5 Paige, 487; Newton v. Bronson, 3 Kern., 587; see as to acting by attorney, Sinclair v. Jackson, 8 Cowen, 582; May's Heirs V. Franzee, 4 Litt,, 391; Telford v. Barney, 1 Iowa, 591. 762 POWERS OF SALE. equivalent or substitution; for the person who cre- ates the power has the undoubted right to create ■what checks he thinks necessary to guard against a tendency to abuse,' hence, if a deed be expressly required, the power cannot be executed by a will ; and if the power is to be executed by will, it can- not be executed by any act to take effect in the life- time of the donee of the power." Upon the same principle, as a general rule, a power to sell and con- vey does not confer a power to mortgage.^ But it is, nevertheless, held that a power for trustees to sell, will authorize a mortgage by them, which is a conditional sale, wherever the objects of the trust will be answered by a mortgage; as, where the trust is to pay debts or raise portions.* In Bloomer v, Waldron this doctrine, as a general proposition, is denied. The judge remarked that " the mere rais- ing of money for the payment of debts, portions, &c., is not enough. There must be, I apprehend, some pressing exigency apparent on the face of the will or power." ^ But still a power will enable the donee to dispose of the fee, though it contain no words of inheri- tance, by means which would seem to be equivalent, » 4 Kent's Com., 330. » 4 Kent's Com., 331; Earl of Darlington v. Pulteney, Cowp. Rep., 260; 1 Story's Eq., 185; Lord Eldon in Reid v. Shergold, 10 Ves., 379. * Sugd. on Pow.,.538, (6th Lond. ed.); Bloomer i'. Waldron, 3 Hill's R., 366; Albany F. Ins. Co. v. Bay, 4 Corns., 9. * Ball V. Harris, 8 Sim., 485, and Holme r. Williams, 8 Sim., 557; 1 Sugd. on Pow.,538; Lancaster v. Dolan, 1 Rawle,231; Williams v. Wood- ward, 2 Wend., 492; and see Bootle v. Blundell, 1 Meriv. R., 193, 232. ' Bloomer r. Waldron, 3 Hill, 368; Albany F. Ins. Co. v. Bay, 4 Coms., 9; Gumming v. Williamson, 1 Sand. Ch., 17. POWERS OF SALE. 763 or a substitution. Thus, a power to charge an estate, with nothing to restrain the amount, will, in equity, authorize a charge to the vtmost value; and, as equi- valent to it, a disposition of the estate itself, in trust to sell and divide amongst the objects,* and it has been held that a power in a will to raise money out of the rents and profits of an estate, to pay debts or portions, includes in it a power to sell and mort- gage, where it is necessary to raise money for the purposes of the trust, upon the principle that other- wise it might be impracticable to raise the money .^ A testator directed his executors to sell certain of his property immediately after his death, upon a credit of twelve months; the executors sold it upon a credit of six months. The court held that it was not such a departure from the terms of the power to sell, as to authorize the Chancellor to set aside the sale.^ Mr. Kent remarks," "the intention of the donor of the power, is the great principle that governs in the construction of powers ; and in furtherance of the object in view, the courts will vary the form of executing the power, and, as the case may require, either enlarge a limited to a general power, or cut down a general power to a particular purpose." But this still has reference to the testator's intentions. Thus, a power to executors to sell the testator's * 4 Kent's Com., 345; Wareham v. Brown, 2 Vern. R., 153; 'Long v. Long, 5 Ves., 445. » Conkling v. Washington University, 2 Md. Ch. Decis., 497. ' Richardson v. Hayden, 18 B. Monr., 242. ^ 4 Kent's Com., 345; Siigd. on Pow., 452; Lord Hinchinbroke v. Sey- mour, 1 Bro. C. C, 395; Bristow v. Warde, 2 Ves., Jr., 336. 764 POWERS OF SALE. "fast" estate, does not give them any right to sell lands which he had, prior to his death, made an arrangement to convey/ So, also, a cemetery lot in which a former wife of the testator was buried, was held not to be embraced within a power of sale given by the testator to his executor to sell his pro- perty, describing it by general terms, for the pay- ment of debts and legacies; such lot not being, without special directions, deemed to be regarded by the testator as property, except for a sacred pur- pose to which he had dedicated it.^ It is settled that a simple power of sale will not authorize a partition of the estate, although by a circuitous method it has sometimes been so used.^ Where a power of sale was given to trustees with direction to employ the purchase money generally for the benefit of the cestui que trust in a manner requiring time and discretion, as where the trust was to lay it out again in lands to the uses of the settlement, and till that was done, to invest in the funds, it was held that the trustee had power to give a discharge for the purchase money, as an in- cident to the trust, and without any express authority for that purpose ; for such power of sale would otherwise be nugatory.* So also when the money is to be employed for the payment of debts * Lewis V. Smith, 5 Seld., 502. » Derby v. Derby, 4 R. I., 414. ' McQueen v. Farquar, 11 Ves., 467; Brassey v. Chalmers, 4 DeG., Mac. & G., 528, affirming 16 Beav., 223; Bradshaw v. Fane, 25 L. J. Ch., 413; Ringgold V. Ringgold, 1 H. & G., 11; Taylor v. Galloway, 1 Ham. O., 233. * Doran r. Wiltshire, 3 Swanst., 699. rOWEBS OF SALE. 765 generally ; ^ or when the parties beneficially enti- tled to the purcha.«€ money, are infants or unborn ;* or when the trusts are not capable of immediate satisfaction.' In these and the like cases, the purchaser is not bound to see to the proper appli- cation of the purchase money by the trustees ; and, hence, their receipt therefor will be a sufficient discharge- But when the object of application is specifically pointed out, and is immediate and cer- tain, the purchaser under the power is bound to see to the proper application of the purchase money, unless the instrument creating the trust expressly excuses him from that responsibility, by providing that the receipt of the trustee shall be a sufficient discharge;* or unless he is excused by some special provisions of statute enacted for such purposes.^ It follows that the trustee with power to sell and give receipts in discharge, has complete power of disposition over the trust estate, and may compel a purchaser to complete his contract independently of joining the cestui que trust as a party.* As to the time when a power of sale must be exe- cuted, it will depend upon the directions contained in the instrument conferring the power : because in ' Forbes r. Peacock. 11 Sim.. 152. l^'J, and ioaes w. Price, 11 Slm.,bo7. • Sowarsby r. Lucy. 4 Madi., 142; Breedon ». Bieedon, 1 Rmfc It M-, 413; Lavender r. Stanton.. 6 Madd., 46. ' Balfour r. WeUacd, 16 Ves.. 151. 1-56; 1 Lead. Cas. Eq-, 102. • 2 Sugd. V. and P.. 30, et teq ; Dufy r. Calvert, 6 Gill., -487. » 7 and 8 Vict., ch. 76, sec. 10; 1 >'. T. K. S-.. 730, tee. 65, 66. • Drayson w. Pocock, 4 Sim., 253; Binks r. Lord Bokeby, 2 Madd., 227; Dxiffy r. Calvert, 6 Gill., 487. 766 POWERS OF SALE. this as in other respects, the conditions annexed to the exercise of the power must be complied with. If the power is to be exercised only on the happen- ing of a certain event, the power cannot be exer- cised unless such an event happens. Thus, where the power of sale is to be exercised on the defi- ciency of another estate to answer certain charges thereon ; if there be no deficiency, the power will not become operative.^ So a power to sell if the income of real and personal estate be not sufficient to support the wife of the testator comfortably, can only be exercised in that event.^ So a power to an agent to sell after redeeming on a sale for taxes, cannot be exercised before redemption.^ But a power of sale discretionary as to the time and mode of the sale in the trustee, can only be questioned for an absence of good fiiith.'* Upon the same principle, where the trust is to sell after the death of the tenant for life, a sale in his lifetime is bad even though made under a de- cree of court.^ It has been held, where a sale is directed to be made within a certain period, that a sale before its ' Culpepper v. Aston, 2 Ch. Cas., 221; Sugd. on Pow., 497; Bronson, C. J., in Roseboom v. Mosher, 2 Denio, 68; see also Graham v. Little, 5 Ired. Eq., 407; Bloodgood v. Bruen, 2 Bradf. Surr. Rep., 8; Minot v. Prescott. 14 Mass., 495. ' Minot V. Prescott, 14 Mass., 495. * Dwinney v. Reynolds, 1 W. & S., 332. * Banner i'. Storm, 1 Sand. Ch., 357; Champlin v, Champlin, 3 Edw. Ch., 571, and 7 Hill, 245. 'Rodman v. Monson, 13 Barb., 63; Blacklow v. Laws, 2 Hare, 40; Ervin's Appeal, 16 Penn. St. Rep., 268; Stj'er v.Freas, 15 Penn. St. Rep., 339; Sweigart v. Berk. 8 S. & R., 304; Jackson v. Ligon, 3 Leigh, 161. POWERS OF SALE. 767 expiration is valid, tliougli the convej^ance be not made until afterwards/ and if the power of sale be coupled with a trust, a sale after the period fixed will be good.^ In respect to purchasers from trustees under powers of this description, Mr. Hill, in his work on trustees, remarks, " there is a material difference, whether the condition annexed to the exercise of the power, is precedent or subsequent. If it is prece- dent, its performance is essential for giving exist- ence to the power of sale, and no sale under the power can by possibility be sustained, unless the condition be performed.^ But where the condition is subsequent, the power of sale will attach inde- pendently of the performance of the condition, and if the purchaser be expressly or constructively ex- onerated from seeing to the performance of the trusts, his title would not be affected by the fact that the condition had not been performed. For instance, to select the two conditions just referred to, where the deficiency of the personal estate, or any other property, is the condition on which the power is to be exercised, that is a precedent condition which must be satisfied before the power can arise ; consequently it will be incumbent upon a purchaser from the trustee in any case to ascertain that the required deficiency had arisen previously to the sale. But when the reinvestment of the purchase money is required, that is a subsequent condition, and ^ Harlan v. Brown, 2 Gill., 475. » Miller v. Meetch, 8 Barr, 417; Cuff r. Hall, 19 Jur., 973. ' Mason v. Martin, 4 Md., 125; Gibson v. Jones, 5 Leigh, 370. 768 POWERS OF SALE. a bona fide purchaser from the trustees will not be affected by its non-performance, if they have a power to give discharges for the purchase money .^ It has already been remarked that a power of sale may be given as appendant to the legal estate, and to take effect out of it, or it may exist as mere col- lateral authority, unaccompanied wdth any legal interest in the property to be sold. Where the trustees take the legal estate in the property coupled with the power of sale, they are fully competent to contract and make good conveyances of the legal and equitable estates to the purchaser.^ As a mere collateral authority he also may have a similar power. Thus, where a testator had directed, in his wdll, that his wife should retain possession of his farm for five years after his death, the family to be kept together, and the plantation to be managed by her, and cer- tain kindred supported by her, and he provided means to enable her to conduct the farm. By a subsequent clause he authorized his executor, "at a proper time, say at the expiration of five years from the time of my decease," but expressing a desire that his wife retain possession longer if for the interest of the family, to dispose of all his estate in fee simple, and as each child comes of age to pay him or her a distributive share. The widow lived on the farm till the expiration of five years, w^hen * Hill on Trustees, 478; Cleveland v. Boerura, 27 Barb., 252. " Sowarsby v. Lacy, 4 Madd., 142; Keon v. Magawly, 1 Dr. & W., 401. The same as to power of sale to executors by implication, from having the distribution of the purchase money. Tylden r. Hyde, 2 S. & St., 238; Forbes v. Peacock, 11 Sim., 152. POWERS OF SALE. 769 the oldest child being within a few months of twenty-one years of age, the executor offered the farm for sale. It was held by the court, that the executor acting in good faith, and being of opinion that the interests of the family required a sale, it would be an improper exercise of authority in a Chancellor, to interfere and substitute his own dis- cretion for the discretion of the executor.^ A trustee is bound to regard the interests of the cestuis que trust in the management of the affairs of his office ; and as to the manner in which he should proceed to sell the estate in case of a trust for sale, Lord Eldon laid down the rule "that he should bring the estate to the hammer under every pos- sible advantage to his cestuis que trust. ''^'^ He may affix reasonable and necessary conditions where the state of the title requires it ; ^ but he must not impose such as are unnecessary and tend to injure the sale.* Executors having a general power of sale are not restricted to any particular mode of selling, but they may sell at either public or private sale, and without advertising.^ But they must act in good faith, and not sell at improper times.*' If they are ^ Dixon V. McCue, 14 Gratt., 540; Mortlock v. BiiUer, 10 Ves., 309; Conolly V. Parsons, 3 Ves., 628, n.; see also Campbell v. Walker, 5 Ves., 680. ' Downes v. Grazebrook, 3 Mer., 208; Hart v. Ten Eyck, 2 Johns. Ch., 62, 110; see also Franklin v. Osgood, 14 Johns., 527. ' Ilobson V. Bell, 2 Beav., 17. * Welkins v. Fry, 1 Mer,, 268; 2 Rose, 375, ' linger v. linger, 9 Rich Eq., 217; McDermot v. Lorillard, 1 Edw. Ch., 273; Hill on Trnstees, 480. * Quakenbush v. Leonard, 9 Paige, 347; see also Osgood v. Franklin, 2 Johns. Ch., 27, and 14 Johns. R., 527. 49 770 POWERS OF SALE. guilty of gross negligence in not ascertaining the true value of the land, they Avill be held responsible for any deficiency/ But where there are doubts as to the power of the trustees to sell so as to affect the price, causing the land to bring less, this will not affect the rights of the purchaser, even though prudence would have required the trustee to have applied to the court for direction." In New York it is held that, in general, a naked power, to sell and reinvest, or to sell for a certain sum, can only be exercised by a sale for cash.^ But a sale where the purchase money is secured by mortgage, is believed to be unobjectionable in Penn- sylvania, for by it a better price can generally be obtained ; but a sale on personal security is at the trustee's own risk,* and the Orphans' Court cannot direct a sale for the payment of debts except for cash.^ The contract for sale must not be entered into mider circumstances of haste or improvidence.^ Thus, it is a breach of trust for a trustee, for the payment of debts, to sell where his grantor had only an equitable interest ; but, with the right to the legal title, he ought first to have procured the conveyance of the legal title.^ * Ringgold V. Ringgold, 1 Harr. & Gill., 11; Quackenbush v. Leonard, 9 Paige, 3-47. " Goodrich v. Procter, 1 Gray, 567. ' Waldron v.McGomb, 1 Hill, 111; S. C., 7 Hill, 335; Ives v. Davenport, 3 Hill, 373. * Swoyre's Appeal, 5 Barr, 377. ' Davis' Appeal, 14 Penn. St. Rep., 372. ' Ord V. Noel, 5 Madd., 410; Rossett v. Fisher, 11 Gratt., 492; Hill on Trustees, 479. ' Rossett V. Fisher, 11 Gratt., 492. POWERS OF SALE. 771 Where there have been any irregularities in the exercise of the power of sale, a stranger or wrono- doer has no right to object;^ and where the cestuis que trust waive them, the purchaser cannot refuse to complete his bargain on account thereof^: and in favor of meritorious claimants, there is a general presumption that the proceedings have been regular.^ ' Hillegass v. Hillegass, 5 Barr, 97; Gary v. Colgin, 11 Alab., 514. » Schenck r. EUingwood, 3 Edw. Ch., 175; Greenleaf v. Queen, 1 Peters' S.C., 146. * Marshall v. Stevens, 8 Humph., 159. 772 WHEN ANY LEGAL ESTATE CHAPTER VII. THE ESTATE OF A TRUSTEE. Section I. WHEN ANY LEGAL ESTATE VESTS IN THE TRUSTEE. In general, the trustee is one in whom the legal estate of property real or personal is vested, to be held for the benefit of another ; hence, at law, the trustee is regarded as the legal owner of the pro- perty. This rule, perhaps, would have been with- out exception, had it not been for the efTect of the various statutes enacted upon this subject. But owing to the many abuses which had crept in, and to which allusion has already been had,' the Statute of Uses was passed with the view of pre- venting the trustee from taking any interest at all in such cases, and conferring the legal as well as equitable interest or ownership at once upon the one to whom the beneficial enjoyment was given.'^ This statute provided that where any person should be seised of lands, &c., to the use, confidence or trust of any other person or body politic, the per- son or corporation entitled to the use in fee simple, " See ante, Express Trusts; 4 Kent's Com., 294, 296. ' See Story's Eq., sec. 970; 2 Black. Com., 330; WiU. Eq., 410; Stat. Uses, 27 Henry VIII. VESTS IN THE TRUSTEE. 773 fee tail, for life or years, or otherwise, should thence forth stand, or be seised or possessed of the lands, &c., of and in the like estate, as they have in the use, trust or confidence ; and that the estate of the person so seised to uses shall be deemed to be in him or them that have the use in such quality, manner, form or condition as they had before in the use.^" By this statute, uses were designed to be abol- ished by being converted into legal estates in the beneficiary ; but owing to the construction put upon it by the judges, that intent was in a manner defeated ; and there were three methods by which uses might be created and sustained, notwithstand- ing the statute. The first method was by the limitation of a use upon a use. Thus, in the limi- tation of an estate to A. and his heirs, to the use of B. and his heirs, in trust for D., Courts of Equity held that the intention of the grantor or donor must be supported ; and, as it was evident that B. was not intended to take the beneficial interest, his conscience was affected, and therefore he must be treated as the trustee of D. The second rule was, where copyhold or leasehold estates were limited by deed or will to a person upon any use or trust.^ It was resolved by all the judges in the 2 2d of Elizabeth, that the word " seised" was only applic- able to freeholds ; consequently, the statute did not apply to those estates of which no seisin could be ' 2 Fonb. Eq., B. 2, ch. 1, sec. 3, note; Bac. Abr., tit. Uses and Trusts. ' Bac, Us., 355; 2 Bl. Com., 336; 1 Cruise Dig., tit. 12, ch. 1, sec. 4 to 36. 774 WHEN ANY LEGAL ESTATE had, such as copyholds or terms of years, &c/ The third principle of construction by which uses were sustained was, that whenever it became necessary to vest the legal estate in the donee to uses to enable him to perform the duties with which he was entrusted, equity would consider the legal estate so vested.^ Thus, under the operations of this statute — which has been substantially enacted in many of the States — and the constr^ction given to it by the courts, it often becomes difficult to determine the nature and extent of the estate vested in the trustee. An examination of a few of the cases arising under these rules of construction, will present to view the principle by which the estate of the trustee is measured and determined. The reason why a use limited upon a preceding use did not come within the provisions of the statute was, that the first cestui que use could not be said to be seised to the use, therefore it was held that the legal estate was executed in the first cestui que use, and consequently he became a trustee of the person to whose ultimate use the trust was limited.^ »Hill on Trustees, 230; Gilb. Us., 67, n.; Pow. Dev., 232; Cowp. R., 709; 1 Cruise Dig., tit. 11, ch. 3, sec. 22. " Keeue v. Deardon, 8 East, 248; Chamberlain v. Thompson, 10 Conn., 244; Bagshawv. Spencer, 1 Ves., 142; in U. States, sec Brewster v. Striker, 2 Corns., 19; Norton v. Leonard, 12 Pick., 157; Striker v. Mott, 2 Paige, 387; Vail v. Vail, 4 Paige, 317; Morton v. Barrett, 22 Maine, 261; Wood r. Wood, 5 Paige. 596; Ashurst v. Given, 5 Watts & Serg., 323; Reformed Dutch Ch. V. Veeder, 4 ATend., 494; Ramsey v. Marsh, 2 McCord, 252; Vander Volgen v. Yates, 3 Barb. Ch., 243. ' Tyrell's Case, Dyer. 155; 4 Kent's Com., 302; Lord Mansfield in Bur- gess V. Wheate, 1 W. Black. Rep., 160; 2 Bl. Com., 336; Cruise Dig., tit, 12, ch. 1, sec. 4; Wilson v. Cheshire, 1 McCord's Ch. Rep., 233. VESTS IN THE TRUSTEE. 775 After the enactment of the Statute of Uses, says Blackstone, " the power of the Court of Chancery, over landed property was greatly curtailed and diminished. But one or two technical scruples which the judges found it hard to get over, restored it with tenfold increase. They held, in the first place, that no use could be limited on a use ;" and that where a man bargains and sells his land for money, which raises a use by implication to the bargainee, the limitation of a ftirther use to another person is repugnant, and therefore void.'^ And therefore, on a feoffment to A and his heirs, to the use of B and his heirs, in trust for C and his heirs, they held that the statute executed only the first use, and that the second was a mere nullity ; not adverting that the instant the first use was executed in B, he became seised to the use of C, which second use the statute might as well be permitted to exe- cute as it did the first ; and so the legal estate might be instantaneously transmitted down through a hun- dred uses upon uses, till finally executed in the last cestui que use."'^ But by the decisions of courts of law, treating the second use as a nullity, it became evident that the intention of the grantor or donor, was defeated by giving to the first cestui que use the benefit intended for the s cond,^ and to remedy this, Chancery interfered and raised a trust for the intended beneficiary. Therefore, in the language of > 1 And., 37, 136. "2 61. Com., 335. * 2 Bl. Com., 336; Cruise Dig., tit. 12, ch. 1, sec. 5; see also note 1 in Greenl. Cruise, tit. 12, ch. 1, sec. 4, (2d ed.) 776 WHEN ANT LEGAL ESTATE Mr. Cruise,^ " a trust is a use not executed by the statute of 27 Henry VIIL" Upon the same principle, where lands are con- veyed by covenant to stand seised, bargain and sale, or by appointment under a power, to A and his heirs, to the use of B and his heirs, the legal estate will vest in A, as trustee for B ; for in these in- stances the conveyance does not operate by trans- mutation of the seisin to A, but merely passes the use to him, while the seisin remains in the original owner.^ But where one seised of lands, covenants, in consideration of blood or marriage, that he will stand seised of the same, to the use of his child, wife or kinsman, for life, in tail or in fee, the statute executes at once the estate; for the party intended to be benefited, having thus acquired the use, is thereby put into corporal possession of the land.^ The only consideration which will support a cove- nant to stand seised, are blood and marriage ; there- fore if one should covenant to stand seised to the use of himself for life, with remainders to the use of trustees, who are not his relations, for the pur- pose of preserving contingent remainders, with remainder to his first and other sons, in tail, &c., no use would vest in the trustees, because the con- sideration, blood or marriage, does not extend to them. And this is the principle reason why cove- nants to stand seised are fallen into disuse.'* It 1 Dig., tit. 12, ch. 1, sec. 2. " Hill on Trustees, 230; 1 Sugd. Pow., 10, 240, (6th ed.); Gill. Us., 67, 347, n.; 1 Cruise Dig., tit. 12, ch. 1, sec. 9; 16 Johns., 304. » 2 Bl. Com., 338; Bac. Us., 151. * 2 Black. Com., 238, Chitty's note; also 2 Sand. Us. and Trusts, 82. VESTS IN THE TRUSTEE. '77 should be observed that it is not by the words, but by the nature of the instrument that this effect is produced; for if a man, for the consideration of natural love and affection, bargain and sell his lands to the use of his wife, &c., it is a covenant to stand seised to uses, and, without enrollment, vests the estate in the wife, &c. So, likewise, if for a pecu- niary consideration he covenant to stand seised to the use of a stranger and the deed be properly en- rolled, it is a good and valid bargain and sale, &c/ Cruise, in his Digest of the law rela,ting to real property,'-^ states the following circumstances as necessary to the execution of a use under the statute of 27 Henry VIII: "1. A person seised to the use of some other person; 2. A cestui que vse in esse; and, 3. A use in esse in possession, remainder, or reversion." Therefore, in examining the question whether a particular use has been executed by the statute, the first enquiry is whether these three cir- cumstances exist ; and the student will find himself much aided by consulting Cruise, chap. 3, tit. 11, on these questions. This doctrine of the English Statute of Uses, has been generally recognized in the jursiprudence of the United States. In South Carolina it has been adopted in express terms,^ and in Indiana,* Illinois,^ » 2 Bl. Com., 338, Archbold's note; 7 Co., 40, b; 2 Inst., 672; 1 Leon., 25; 1 Mod., 175. ' Tit. 11, eh. 3, sec. 5. ^ S. C. Statutes at Large, Vol. II., p. 467. * Ind. R. Stat., 1843, p. 447, sec. 181. '111. R. Stat., 1839, p. 148. 778 WHEN ANY LEGAL ESTATE and Missouri/ in substance. This statute was part of the colonial law of the State of Virginia, until the general repeal of all the British statutes in 1792, and was partially supplied by the provisions of the Revised Code,*^ which provides that in deeds of "bargain and sale," "covenants to stand seised," and of " lease and release," the possession of the bargainor, &c., shall be transferred to the bargainee, &c., for the interest that the party has in th,e use, as perfectly as if the latter had been enfeoffed with livery. Under this statute, the possession is trans- ferred to the use only in the cases enumerated.^ Lomax, in his Digest,^ remarking upon this statute, says: "To give to the words of this act a meaning co-extensive with the English statute, so as to include every case where there may be found a seisin in one person and a use in another, seems to be unwarranted by any rule of statutory interpreta- tion, nor is there apparent any principle of policy BO imperious as to require so free a construction of plain, unambiguous language. Of the three cases which are specified in the act, in which the law operates to execute the seisin to the use, two of them are plainly cases where there is a declaration of use without the transmutation of possession, viz : bargain and sale and covenants to stand seised. In the other case of the lease and release, it is the release which is the operative part of the convey- ' Mo. R. Stat., 1845, p. 218, ch. 32, sec. 1. ' Ed. 1849, p. 502; Statute of Feb. 24, 1819, (VoL I., p. 370, sec 29, Rev. Code,) p. 502, sec. 14. ' 1 Lomax Dig., 188; Bass v. Scott, 2 Leigh, 359. VESTS IN THE TRUSTEE. 779 ance, and was at common law entirely effectual to enlarge the estate and possession of the lessee into the measure of the freehold released. The act of the Legislature could give no additional efficacy to the release, and it is presumed that it was for no such purpose that the lease and release were enu- merated with the other two assurances. The pur- pose of the Legislature was doubtless in contempla- tion of the lease alone, to make that effectual as it had been under the statute of Henry VIII, by vir- tue of the consideration for raising a use, although there had been no actual entry. The Legislature may have intended a rule applicable to every demise, whether by bargain and sale, or by common law lease, or by any other species of assurance, so that, if followed by a release, the lessee, whether he had entered or not, should be invested with the posses- sion as effectually as if enfeoffed with livery of seisin. If this be the correct explanation of our statute, its provisions are only intended to apply to cases where uses are created without transmutation of possession, and seems purposely to have refrained from all that class of cases where there has been a transmutation of possession. It has been said, in the Court of Appeals, that we (Virginia) have no general statute of uses ; and it was held, where a use was devised in land, the seisin was not executed to the use, because devises were not among the con- veyances enumerated in the act.^ Except, there- fore, in the cases of bargain and sales, lease and Bass V. Scott, 2 Leigh, 359. 780 -WHEN ANT LEGAL ESTATE release, and covenants to stand seised to uses, it seems that all other uses are to be regarded as unex- ecuted, as they were prior to the statute of 27 Henry VIII. These unexecuted uses will compre- hend such as are raised by feoffments to uses, releases and other conveyances operating by transmutation of possession, devises, resulting uses and uses by implication. In all these cases, consequently, the uses will remain as equitable estates, of the same nature as trusts, and not cognizable in courts of law." ^ Similar enactments are found in the statutes of North Carolina,- Kentucky,'^ Mississippi,"" and Florida.^ The Revised Code of Delaware *' provides generally that lands may be transferred by deed without livery, and that the legal estate shall accom- pany the use, and pass with it. In New York,^ Wisconsin,^ and Michigan,^ uses and trusts, except so far as they are particularly authorized or modified by statute, are abolished. The eiOfect of these pro- visions is to convert all mere naked or passive trusts, and most active ones, into mere powers, except in cases where the legal estate and actual possession are required for the purposes of the trust.^" ' 1 Lomax Dig., 188. » Rev. Stat., 1838, Vol, I., ch. 43. sec. 4. p. 259. ' Rev. Stat., 1834, VoL L, p- 443. sec. 12, Moorhead & Brown. * How. &. Hutch. Dig., p. 349, ch. 34, sec. 28. * Thomp. Dig., p. 178, sec. 4. * 1852, p. 266. ' 1 Rev. Stat., p. 728. ' Rev. Stat., p. 318. ' Rev. Stat., 1846, ch. 63. sec 1. " See 4 Kent's Com., 294, and notes, and 299; Vander Volgen r. Tates, 3 Barb. Ch., 243; Reformed Dutch Ch. v. Veeder. 4 Wend., 494. VESTS IN THE TRUSTEE. ' oJ- As for the doctrine of the Statute of Uses in New Hampshire, Massachusetts and Connecticut see authorities cited/ Whether the rule laid down in Tyrrell's case is to be regarded as a rule of con- struction in the United States, see Mr. Greenleaf s note (1), sec. 4, chapter 1, title 12, Cruise's Digest, second edition. In Ohio and Vermont the Statute of Uses seems never to have been in force, and consequently they stand as before the statute of 27 Henry, VIII." In Rhode Island, every deed and covenant to stand seised, transfers the possession to the cestui que use, without further ceremony.^ Mr. Greenleaf, in his note to Cruise,'^ remarks, "that in most of the States statutes have been passed expressly regula- ting conveyances, and providing, in substance, that deeds, executed in the prescribed manner shall be valid to pass the estate to the grantee without any other formality. Such is the case in Massachu- setts, Maine, New Hampshire, Vermont, Virginia, North Carolina, Kentucky, Mississippi and Penn- sylvania. That Delaware had gone so far as to enact, in general terms, that the legal estate shall, in all cases, accompany the use and pass with it; ^ Chamberlain v. Crane, 1 N.H., 64; Exeter v. Odiorne, ibid, 237; French V. French, 3 N. H., 239; Marshall v. Fisk, 6 Mass., 31 ; Norton v. Leonard, 12 Pick., 156; Bryan v. Bradley, 12 Conn., 474; Northampton Bank v. Whiting, 12 Mass., 104. » Thompson v. Gibson, 2 Ohio Rep., 439; Helfeinstine v. Garrard, 7 Ohio Rep., 275; Gorham v. Daniels, 23 Vt., 600. ' R. I. Rev. Stat.. 1844, p. 260. * Ut supra. » R. Stat., 1829, p. 89, sec. 1. 782 WHEN ANY LEGAL ESTATE and New York has declared^ that the party entitled to the possession and receipt of profits shall be deemed to have the legal estate to the same extent as the equitable interest. And a provision sub- stantially similar exists in Indiana.^ In all these States, therefore, deeds of conveyance derive their effect, not from the Statute of Uses, but from their own statutes of conveyances, operating nearly like a feoffment with livery of seisin to convey the land, and not merely to raise a use to be executed by the Statute of Uses. Hence, it would seem that in these States a use may well be limited on a use, and the original intent and principle of the Statute of Uses be allowed to have its free and unrestrained operation, and to convey the legal estate by its electric energy to the remotest use, when not arrested by any permanent intervening trust. Such operation has already been admitted in deeds of bargain and sale, and is virtually conceded in the rule that deeds of conveyance, in whatever form, may be treated as any species of conveyance w^hich will best effectuate the intent of the parties." ^ " The rule in Tyrrell's case was expressly disap- proved by Dana, Ch. J., in Thatchers. Omans."* In cases of devise the rule of construction is held to be the same as other conveyances. Thus, where real estate was devised to trustees and their heirs, » 1 R. S., 727, § 47. 'R. Stat., 1843, ch. 28. ' Davis V. Hayden, 9 Mass., 514; Higbee v. Rice, 5 Mass., 352; Pray v. Price, 7 Mass., 381; Knox v. Jenka, 7 Mass., 488; Flint v. Sheldon, 13 Mass., 443; Marshall v. Fisk, 6 Mass., 24. * 3 Pick. Supp., 528. VESTS IN THE TRUSTEE. 783 to the use of them and their heirs, upon several trusts, it was declared by Lord Hardwick that the legal estate was vested in the trustees, and the sub- sequent devisees took only equitable interests, the same as lands conveyed in settlement to trustees and their heirs, to the use of them and their heirs, to the use of A. B." i The rule, that the legal estate will vest in the donee to uses, provided it be requisite, to enable the donee to perform the duties with which he is entrusted, is a very obvious one. For, if the trustee is required to perform any act, it is plain that he should have sufficient power to perform it. Hence the rule, " Trustees must, in all cases, be presumed to take an estate commensurate with the charges or duties imposed on them." '^ Thus, a conveyance or devise of real estate to trustees and their heirs, to sell or mortgage the same for the payment of debts, or with the money to purchase other lands to be settled to certain uses, vests the legal estate in the trustees, and not in the person to whom the use is subsequently limited.^ So, where there are gifts of real estate to trustees, * Whetstone v. Bury, 2 P. Wms., 146; Hopkins v. Hopkins,! Atk.,581; Vide, Att'y Gen., v. Scott, Forrest R., 138; Vonables v. Morris, 7 T. R., 342, 438; Doe v. Hicks, 7 T. R., 433; Coknore v. Tyndall, 2 Yo. & Jerv., 605. ' Deering v. Adams, 87 Maine, 264; Richai'dson v. Woodbury, 43 Maine, 206; Lord Ellenborough, in Trent v. Hanning, 7 East, 99; Doe v. Willan, 2 B. & Aid., 84; Gibson v. Montfort. 1 Ves., Sr.,405; Hill on Trustees, 231, Wharton's note (1) ; Ellis v. Fisher, 3 Sneed, 231; Brewster v. Stryker, 1 E. D. Smith, 321; Neilson v. Lagow, 4 Ind.,607; Ward r. Amory, 1 Curtia Ct. Ct., 419; Coulter v. Robertson, 24 Miss., 278. ' Keene v. Deardon, 8 East, 248; Bagshaw v. Spencer, 1 Ves., 142; Chamberlain v. Thompson, 10 Conn., 244; 1 Cruise Dig., tit. 12, eh. 1. sec. 21; see also Brewster v. Striker, 2 Corns., 19; Burr v. Sim., 1 Whart., 252. 784 WHEN ANT LEGAL ESTATE with a direction to convey, or to pay the rents and profits to certain persons, or to receive the rents and apply them, &c., it has been held that the legal estate is necessarily in the trustee to enable him to perform such duties/ It is a well settled principle that the estate of a devisee in trust will not be taken from him by the execution of the use, con- trary to the intention of the testator to be gathered from the will itself,^ and this intent may be mani- fested by requiring the trustee to perform some act, either relating to the estate and the manner in which the cestui que use is to enjoy its benefits, or it may not relate to such ulterior object. Thus, where a trust to sell is plainly created, or where a devise is made in trust to raise money to be applied to collateral purposes, with remainder to use of the cestui que use, it is manifest that the testator intended the estate should vest in the trustee.^ Thus, also, where money is to be raised out of lands for the payment of debts or legacies, if it appear the testa- tor intended that the trustee or executor should be active in the payment of the money, the estate will be vested in the trustee/ Fletcher, on Trustees,^ lays down this rule : " Where trustees are directed to do any acts relating to the land devised, which ' Garth r. Baldwin, 2 Ves., 645; Mott v. Buxton, 7 Ves., 201. ' Fletcher on Trustees, 19; Goodtitle v. Whitby, 1 Burr., 228; Doe v. Field, 2 B. &, Ad., 564; Stanley v. Stanley, 16 Ves., 491. * 1 Eden, 125; Bagshaw v. Spencer, 1 Ves., Sr., 142; Rodgers v. Gibson, Ambl., 95; Gregory v. Henderson, 4 Taunt., 772; see also 2 Pow. Dev., by Jarm. 8; 2 Salk., 679; 11 East, 377; Doe r. Woodhouse, 4 T. R., 89. * Ellis V. Fisher, 3 Sneed, 231; Brewster v. Striker, 1 E. D. Smith, 321. * Page 27. VESTS IN THE TRUSTEE. '^^ are usually performed by the legal tenant, the testator's intention will be taken to be, that they are to retain the legal estate, and consequently, it will not be executed in the cestui que trust} Where the question of intent turns upon the nature of the duty to be performed, a distinction is made between a trust which carries with it some legal estate or interest in the land, and a bare power or authority to sell ; and the rule is, that where the duty to be performed may be sufficiently accom- plished by the exercise of a bare power or authority, the will is to be construed as creating nothing more than such power and authority, unless more is expressly given, since the heir is not to be disin- herited by such construction.*^ Upon the principle of effectuating the intention of the testator, where an estate is devised to trus- tees for the separate use of a married woman, the devise will, if possible, be construed so as to vest the legal estate in the trustees; because by such construction, the palpable intention of the testator will be more certainly carried out."^ Thus, an estate was devised to trustees and their heirs, upon trust, to permit the testator's niece, who was a married woman, to receive the rents during her life, for her ' See preceding note. "Fletcher on Trustees, 11. 12; Cruise Dig., tit. 12, ch. 1, sec. 14, n. (1), (2(i ed.,) by Greenleaf; Sugd. Pow., lOG; 1 Chan. Fow., 62; Fay v. Fay, 1 Cush., 93. * Cruise Dig., tit. 12, ch. 1, sec. 16; Neville r. Saunders, 1 Vern., 415j 1 Ab. Eq., 383; Harton v. Harton, 7 T. R., 652; Bass v. Scott, 2 Leigh, 256; Bush v. Allen, 5 Mod., 63; Robinson v. Grey, 9 East. 1; see also Say and Sele v. Jones, 1 Eq. Ca. Abr., 383; 1 Cruise Dig., tit. 12, ch. 1, sec 14, note. 50 786 WHEN ANY LEGAL ESTATE separate use, Lord Kenyon said, that whether this were a use executed in the trustees or not, must depend upon the intention of the devisor, This provision was made to secure to a feme covert a separate allowance, to eifectuate which it was essen- tially necessary that the trustees should take the estate which the use executed; for otherwise the husband would be entitled to receive the profits, and so defeat the object of the devisor.^ It has already been remarked that where lands are devised or conveyed by deed to trustees in trust, to sell or mortgage them, in order to raise money for payment of debts, and subject thereto in trust for a third person, the trustees will take the legal estate, to enable them to perform their duties ; and although the direction for the payment of debts, &c., out of the proceeds of the land, is only in aid of the personal estate, the trustees will take the legal estate immediately, independently of the fact of its eventual applicability.^ If, however, the charge of debts upon the real estate is expressly contingent upon the insufficiency of the personalty, or any other fund designated for the payment in the first instance, the trustees will not take an immediate legal estate ; ^ for a mere charge of debts or legacies ' Harton v. Harton, ut svpra ; see also McNish v. Guerard, 4 Strob. Eq., 75; Bass v. Scott, 2 Leigh, 356; Franciscus v. Reigart, 4 Watts, 109; Rogers v. Ludlow, 3 Sandf. Ch., 104; Escheater, 8tc., v. Smith, 4 McCord, 452; Ayre v. Ayre, 16 Pick., 327; Williams v. Holmes, 4 Rich Eq., 475; Ware v. Richardson, 3 Maryl. R., 505. " Hill on Trustees, 232; 1 Jarm. Pow. Dev., 224, n.; 18 Ves , 395, 413. * Goodtitle v. Knott, Coop , 43; Hawker v. Same, 3 B. & Aid., 537; see 1 Yes., 485. VESTS IN TEE TRUSTEE. '87 on real estate, will not of itself vest the legal estate in the trustees, unless they are expressly directed to pay them/ We have seen that where real estate is given to trustees with a direction to convey, pay rents and profits to certain persons, or to receive and apply rents, &c.,^ that the legal estate is necessarily vested in the trustees. But a distinction is made where the direction to the trustee is not to pay over the rents and profits, to another, but to permit and suffer such other to receive them; because in the former case, the trustee must necessarily receive them, and hence, take the legal estate ; while in the latter case, there being no such necessity, the legal estate will be vested, by the statute, in the person who is to receive the rents and profits.^ The intention of the testator, as it is gathered from the will itself, however, must prevail, notwithstanding any parti- cular form of expression. Thus, notwithstanding the will direct the trustees to permit and suffer another person to receive the rents and profits, yet if any additional duty, imposed upon the trustee by the will, make it necessary that he be vested with the legal estate, he will be so vested, and the above distinction will not prevail.* There is a class of ' Hill on Trustees, 231; Jarm. Pow. Dev., 224, n.; Cruise Dig., tit. 12, ch. 1, sec. 32. " Garth v. Baldwin, 2 Ves., 645; Mott v. Buxton, 7 Ves., 201. ' Hill on Trustees, 233; Broughton v. Langley, 2 Ld. Raym., 873; see 2 Taunt., 109; 12 East, 455; 4 Taunt., 772; see Parks v. Parks, 9 Paige, 107; Ramsey v. Marsh, 2 McCord, 252; Barker v. Greenwood, 4 M. & W., 429. * Cruise Dig., tit. 12, ch. 1, sec. 25; Keene v. Deardon, 8 East, 248; Hill on Trustees, 34S; see Vanderheyden v. Crandall, 2 Denio, 9; Barker v. Greenwood, ut supra; White v. Parker, 1 Bing. N. C, 573; New Parish v. Odiorue, 1 N. H., 232. 788 NATURE AND QUANTITY OF doubtful cases where there is an express devise to trustees, but the devise seems to depend upon a con- tingency which has foiled. Thus, where a testator, in case his personal estate should not be sufficient to pay his debts, gave his real estate to his execu- tors in trust, to pay his debts, and to pay the resi- due over to others. This was held to be a contingent devise in trust ; and the personal estate proving suffi- cient to pay the debts, nothing passed to the exe- cutors, because the contingency never happened, on which alone they were to take. But where the testator devised all his lands to his executors in trust to pay certain legacies thereout, in case the personal estate was not sufficient. In this case the devise was absolute, and the trust was contingent. In the latter case the executors took the estate. Hence, the distinction between contingent gifts in trust, and gifts upon contingent trusts} Section II. THE NATURE AND QUANTITY OF THE ESTATE VESTED IN THE TRUSTEE. The next inquiry is, what is the nature and quan- tity of the estate in the trustee, where any has passed? This is to be determined by the manifest intent of the party creating the trust. Hence the first leading rule, " Trustees must in all cases be presumed to take an estate commensurate with the charges or duties imposed on them."" Therefore, ' 1 Cruise Dig., tit. 12, ch. 1, sec. 14, note; (2 B. & C, 357; 3 Dow. & Ry., 764; 2 Bred. &. B., 623; 3 B. &. C, 161.) "Trent r. Hanning, 7 Ea.st, 99; Gibson r. Montfort, 1 Ves., Sr., 405; Doe V. Willan, 2 B. 8c Aid., 84; Ellis v. Fisher, 3 Sneed, 231. ESTATE VESTED IN TRUSTEE. 789 where land is devised to trustees, they will take the legal estate whenever it is necessary in order to effect the purposes of the trust.^ So, also, where lands are devised for a particular purpose, without words of inheritance, and the death of the devisee may defeat the object of the devise, he will take the fee.^ A second rule is, " Trustees must not, in general, be allowed, by mere construction or implication, to take a greater estate than the nature of the trust demands; for this would disinherit the heir, which is always, as far as possible, to be avoided." ^ Hence, the estate of trustees will be confined and restricted to such partial or less extensive interest than that indicated by the language of the trust, as will be sufficient to carry out the purposes of the trust.* Thus, although the devise were expressly to the trustees and their heirs, if the duties imposed on the trustees only require an estate per autre vie to be ' 1 Cruise Dig., tit. 12, ch. 1, sec. 14, note by Mr. Greenleaf; Ellis ». Fisher, 3 Sneed, 231; Brewster v. Striker, 1 E. D. Smith, 321. « 8 Vin. Abr., 262, cites Shaw v. Wright, 1 Eq. Ca. Abr., 176, pi. 8; se© Cruise Dig., tit. 12, ch. 1, sec. 14, note; Upham v. Varney, 15 N. H., 462; Ward V. Aniory, 1 Curt. Ct. Ct. K., 419; Newhall v. Wheeler, 7 Mass., 189; Stearnes v. Palmer, 10 Met., 35; Gould r. Lamb, 11 Met., 84; Brooks «. Jones, lb., 191; Cleavland v UuHett, 6 Cush., 403; King v. Parker, 9 Cush., 71; Norton v. Norton, 2 Sandf. Sup. Ct., 290; Williams v. First P. Soc. Cin., 1 Ohio St. R., 478; Nichol v. Walworth, 4 Denio, 385; Haw- ley V. James, 5 Paige, 318; Deering v. Adams, 37 Maine, 265; Webster v. Cooper, 14 IIow. U. S., 499; Gill v. Logan, 11 B. Monr., 233; Comby v. McMichael, 19 Alab., 751. ^ Cruise Dig., Greenleaf's note, tit. 12, ch. 1, sec. 14; per Heath, J., in Doe V. Barthorp, 5 Taunt., 385; per Ellenborough, in Doe v. Simpson, 3 East, 171, 172. * Hill on Trustees, 239. 790 NATURE AND QUANTITY OP vested in them, their legal interest will be cut down to that extent/ This rule, however, is not an inde- pendent principle of construction. It only applies in cases of doubt or uncertainty as to the intention of the one raising the trust. For, wherever, from the fiice of the will, it is apparent that the testator meant to give a fee to the trustees, they will take the fee, although the purposes of the trust might have been effected by the grant of a lesser estate.^ All these cases are to be determined by the will of the testator. *' If his object can be effected b}' allowing the statute of uses its full operation, and vesting the estate immediately in the objects of his bounty, it is so done, provided he has not expressed a diffe- rent intention. If he has designated any duty to be actively performed by the trustee, in relation to the land, and has not declared the nature of the estate which the trustee is to take, the law declares it for him, by presuming he intended to grant an estate just sufficient to effect his ulterior purpose, and no more. But if he has expressly limited the estate to be taken by the trustees, the law merely sanctions the intent so expressed, and aids the trustee in performing the trust only so far as the testator has enabled him to perform it.^ ' Lord Say and Sele v. Jones, 1 Eq. Ca. Abr., 383; Sharpland v. Smith, 1 Bro. C. C, 75; Doe ». Hicks, 7 T.R.,433; Balgrave v. Balgrave,4 Exch., 669; Watson v. Pearson, 2 Exch., 593; Warter r. Hutchinson, 5 Moore, 153. ■■" Cruise Dig., tit. 12, ch. 1, sec 14, Greenleafs note; see also Watson v. Pearson, xit supra; Belgrave v. Belgrave, ut supra; Loveacres r. Blight, Cowp.. 352; Bagshaw v. Spencer, 1 Ves., Sr., 142; but see Warter r.IIut- cliinson, 1 B. & C, 721, 747. ' Greeuleaf^s note to Cruise Dig., tit. 12, ch. 1, sec. 14. ESTATE VESTED IN TRUSTEE. 791 An examination of the authorities will show this principle to be well established; that the estate devised to trustees will be either restricted or enlarged^ as the exigencies of the trust require; and this with- out regard to the technical language used by the testator, provided his intent can be gathered from the will itself. In the case of Chapman v. Blissett/ the testator had devised his real and personal estate to three trustees their heirs and assigns, in trust to pay his son an annuity quarterly ; the residue of the rents to be applied, during the life of his son, for the education of his son's children; then he gave one moiety of the estate to the children of his son, and the other moiety to the children of his grandsons. On the question as to the nature or con- tinuance of the estate of the trustees, Lord Talbot gaid, the whole depended upon the intention of the testator whether the entire legal estate should con- tinue in the trustees, or whether only for a particular time and purpose. Where particular things are to be done by trustees, it was necessary that the estate should remain in them so long at least as those par- ticular purposes required it.^ So, likewise, in the case of Lord Say, &c., v. Jones * the testator had devised lands to trustees and their heirs in trust to pay legacies and annuities therein named, and then to pay the surplus rents into the » Forr., 145; S. C, Talb. Cas. Temp., 145, 150. ' 1 Eq. Cas. Abr.,383; Robinson r.Grey, 9 Ea^, 1; Ware v. Richardson, 3 Maryl. R., 505; see Goodtitle v. Whitby, 1 Bi^r., 228; Warter v. Hut- chinson, 1 B. StCr.,721; Stanley r. Stanley, 16 Ves., 491; Glover v. Monkton, 3 Bingh., 13; see Hill on Trustees, 2^0, and authorities. 792 NATURE AND QUANTITY OF hands of a feme covert ; and after her death, to stand seised to the use of the heirs of her body. Notwith- standing the words of the devise, the court held that the intent of the testator was effectuated, by vesting in the trustees the legal estate during the life of the feme covert, and after her death vesting it in the heirs of her body ; and it was so decreed, which decree was affirmed by the House of Lords/ So, likewise, the estate of the trustee has been enlarged by the construction of the court, where the exigencies of the trusts seemed to require it. Thus, a devise of real estate to trustees in trust to Bell, and without any words of limitation being added, has been held to pass the fee to the trustees; because the exigency of the trust required it.*^ So, likewise, a devise in trust to convey or lease, at dis- cretion, would pass the fee; for a less estate would not answer the purpose.^ But, as has already been stated, the estate of the trustee will not be enlarged so as to disinherit the heir, unless the general nature and object of the trust so require it. Therefore, where an estate is limited in express terms to the trustees, their executors, administrators and assigns, for the payment of annu- < ities, debts, legacies, &c., if a chattel interest will answer the exigencies of the trust, no larger estate ' See preceding note. « Sec Doe v. Howland, 7 Cow., 277; Jackson v. Robins, 16 Johns., 537; Hill on Trustees, 242; Shaw v. Weigh, 1 Eq. Ca. Abr., 181; Gibson t>. Lord Montfort, 1 Ves.,l91; also Amb.. 93; see Cliamberlain r. Thompson, 10 Conn., 244; Watson v. Pearson, 2 Exch., 594; Bagshaw r. Spencer, 1 Ves., 144. • Doe d. Booth v. Field, 2 B. & Aid., 554; Doe d. Keen, id. ESTATE TESTED IN TRUSTEE. 793 will vest in the trustees.^ Thus, where a tenant for life under a will, was empowered to limit or appoint all or any part of the estate to trustees, upon trust, by the rents and profits thereof to raise and pay a yearly rent charge as a jointure for his wife. The tenant for life exercised this power by deed, appoint- ing the estate of trustees and their heirs in trust, by the rents and profits to raise and pay a jointure rent charge of jEGOO. The Judges of the Court of Kings Bench, on a case sent to them, certified that the trustees took an estate in fee.'^ The Judges of the Common Pleas, on the same question being sent to them, were of the opinion that the trustees took no legal estate.^ Lord Eldon, on the hearing of the cause, was of the opinion that the proper mode of securing the rent charge would have been by vesting in the trustees a term of ninety-nine years, if the jointress should live so long,* and thus he would have held that they only took a chattel interest for a term of years, determinable on the death of the annuitant.* From an examination of the authorities, it would seem that in all cases where there is a devise, with- out any words of limitation, to trustees, in trust, out of the rents and profits to pay debts or legacies. » Henderson v. Williamson, 1 Keen., 41; 1 Jarm. Pow. Dev., 231, note; 4 Cruise Dig., tit. 38, oh. 9, sec. 9. ' 11 East, 458. * 3 Taunt., 316; see Hill on Trustees, 244. M8 Ves.,895, 416. ' See Doe d. White v. Simpson, 5 East, 152; Henderson v. Williamson, 1 Keen., 33-41; see Gibson v. Lord Montfort, 1 Vea., 491 ; Ackland t>, Luttey, 9 Ad.8tEll.,879. 794 NATURE AND QUANTITY OF and where the payments can be made without sale or anticipation of the income necessary for that purpose, the trustees will take only a term of years sufficient for raising the necessary sums/ It sometimes happens that doubts arise as to the nature and extent of the estate of the trustee in the subject matter of the trust, owing to the insertion of powers of sale, &c. A power of sale may be given to trustees, either as appendant to the legal estate, and to take effect out of it, or the power may be a mere collateral authority, unaccompanied by any legal interest." Thus, if a testator devise lands to his executors to sell, they take his legal estate accompanied with the power; but if the devise were, " that his executors shall sell " the land, they take only a power, and the legal estate vests in the heir by descent,'' and will remain there imtil divested by the execution of the power/ Mr. Kent, in his Commentaries,^ after noticing the above principle, remarks, "the New York Revised Statutes have interfered with these distinctions, though they seem not to have settled them in the clearest manner. They declare" that a devise of land to executors, or other trustees, to he sold or mortgaged, where the trus- tees are not also empowered to receive the rents and profits, shall vest no estate in the trustees ; but ' Hill on Trustees, 246; 1 Pr. Wm., 589; 2 Vern., 404. » Hill on Trustees, 471. » 1 Sugd. Few., 128, (6th ed.) ; 4 Kent's Com., 320. * Earl Stafford v. Buckley, 2 Vcs., 179; Warneford v. Thompson, 3 Ves., Jr., 513. » Vol. IV., p. 321. • N. Y. R. St., Vol. I., p. 729, sec. 56. ESTATE VESTED IN TRUSTEE. 795 the trust shall be valid as a power, and the lands shall descend to the heirs, or pass to the devisees of the testator, subject to the execution of the power." *' If the construction of this section be, that a devise of lands to executors to be sold, does not pass an interest, without a special authority to receive the rents, then the estate does not in any of the cases already mentioned, pass to the executors, and the devise is only a power simply collateral. The Eng- lish rule is, that an estate may be conveyed to trus- tees to sell, with a provision that the rents and profits be, in the mean time, received by the party who would have been entitled if the deed had not been made, and yet the trustees will take a fee.^ If the trust be valid as a power, then in every such case, the lands to which the trust relates, remain in, or descend to the persons entitled, subject to the trust as a power." ^ The statute,^ authorizes " ex- press trusts to be created to sell lands, for the benefit of creditors, or for the benefit of legatees, or for the purpose of satisfying charges." * These are the very trusts or powers relative to executors which we are considering; and by the same statute,^ "every express trust, valid as such in its creation, except as therein otherwise provided, vests the whole estate in the trustees, subject to the execution of the trust." The conclusion would seem to be, that, as a general ' Keene v. Deardon, 8 East, 248. " N. Y. R. St., Vol. I., p. 729, sec 59. » Ibid, Vol. I., p. 729, sec. 55. * See Gree v. Dikeman, 18 Barb., 535. • N. Y. R. St., Vol. I., sec. 60. 7% NATURE AND QUANTITY OF rule, every express trust created by will, to sell land, carries the fee with it. But if the executors be not also empowered to receive the rents and profits, they take no estate, and the trust becomes a power with- out an interest.^ This restriction of the general rule applies to the case of a " devise of lands to executors to be sold or mortgaged," and the usual case of the direction in the will to the executors to sell lands to pay debts or legacies, is not within the liberal terms of the restriction ; and it may be a question whether it be one of the cases in which, according to the 60th section above mentioned, "the whole estate is in the trustees."" In Ohio it is held^ that a power given to execu- tors to sell land, where they deem it can be done to good advantage, and distribute the proceeds, is a power with an interest, and entitles them to the possession of the land, though the fee, in the mean time, descends to the heir.'' It has also been a question whether estates limited in default of appointment, are to be considered as vested or contingent, during the continuance of the power. It is now settled that the estates so limited are vested, yet subject to be divested by the execu- tion of the power.^ Where the object of the devise to trustees, in > Dominick v. Michael. 4 Sandf. S. C R., 374. ' Harris v. Clark, 3 Scld., 242. ' Dabney v. Manning, 3 Ohio, 321. * See also Rev. Stat. Virginia, 1849 tit. 33, ch. 116, sec. 1; and see Mosby V. Mo.sby, 9 Watt. 584. * 4 Kent's Com., 324; Doe v. Martin, 4 T.R.,39; Cunningham v. Moody, 1 Vcs., 174. ESTATE VESTED IN TRUSTEE. 797 trust, is to preserve contingent remainders, and there are no words of limitation, they take an estate, per autre vie.^ In England the uncertainty of the extent and duration of the estate in the trustee, and the incon- venience arising therefrom, was so great, that to remedy the matter, the "Will Act," 1 Vic. Ch. 26, was passed. By that act (30th sec.) it is provided that any devise of real estate — not being a presen- tation to a church — to a trustee or executor shall be construed to pass the fee simple, or other the whole estate or interest of the testator, unless a definite term of years, or an estate of freehold shall be given him expressly or by implication. It also further provides (31st sec.) that where real estate shall be devised to a trustee without any express limitation of the estate, and the beneficial interest shall not be given to any person for life, or if given for life, the purposes of the trust may continue be- yond the life of the first cestui que trust, the trustee will take a fee simple and not an estate determin- able on the satisfaction of the trust.*^ Where the subject of the trust consists in per- sonal estate, the general rule is, that the legal inte- rest will pass to the donee in trust, by an assignment or bequest, and will remain there until the purposes of the trust are accomplished.^ In cases of choses in action, which are not assignable at law, the donee » Thong V. Bedford, 1 Bro. C C, 314; Webster v. Cooper, 14 How. U. S., 499. ' Take effect 1st Jan., 1838. ' Rice V. Burnett, 1 Spear. Eq., 590; Harley v. Platts, 6 Rich L., 315. 708 NATURE AND QUANTITY OP in trust takes only the equitable interest, while the le^al title remains in the assiji^nor, and at his death ^vill devolve upon his personal representatives, as trustee for the person benelicially interested. In equity the assignment is considered in the nature of a declaration of trust on the part of the assignor, and an agreement to permit his name to he used in an action at law to reduce tlie chose to possession.' Where, by custom or by statute, certain classes of choses in action are legally transferable by assign- ment or delivery, or both, where the assignment is perfected in due form, the legal title vests in the assignee in trust. In cases of executors, however, where the gift of the chose is by will, no legal title will vest in the donee in trust, until the executor assents to the bequest." It sometimes becomes a difficult question, whether an executor, who has been appointed trustee by the same will, and who has proved the will, is to be treated as executor or trustee. Where the trust is created by the will, and the same person is appointed executor and tru.s- tee, the probate of the will by him will be deemed to be an acceptance of the trusts,^ except, perhaps, in those States where an executor is required, in addition to his oath and letters, to give security, ' Hill on Trustees, 2.^0; 1 Mad. Ch. Pr., 686; 1 Williams' Ex'ors, 547; Story's Eq., sec 1040, and authorities. ' Story's Eq., sec. 591, 1039; Deeks v. Strutt, 5 T. R., 690; Doc r. Gay, 3 East, 120; Hill on Trustees, 236. As to what will constitute an assent, see ante. ' Booth V. Booth, 1 Beav., 128; Willi.ims r. Nixon, 2 Beav.. 472; Worth r. McAdcn, 1 Dev. k Batt. Eq., 209; Preble's Appeal, 13 S. fit R., 39; Easton v. Carter, 6 Exch., 8. ESTATE VESTED IN TRUSTEE. 799 before he is qualified to act. In such States a diffe- rent rule obtains.^ So, likewise, where by statute the trustee is required to give bonds, the giving bond as executor only, will be deemed a refusal to act as trustee.^ But the difficulty arises, principally, on the question, where, in respect to the estate, the character of executor ceases and that of trustee begins. There seems to be no general rule appli- cable to all cases ; but each case must depend upon its own peculiar circumstances. Wherever the fund is separated from the testator's property, and appro- priated to the particuhir purposes of the w^ill, the trust character has commenced. Thus, where a testator gave £400 to Buscall — afterwards appoint- ing him executor — to invest and pay the dividends to a party for life, and finally to pay over the prin- cipal as directed by the will. The testator died in 1787. The executor paid all the debts and other legacies, and set apart the sum of £400 to answer the legacy in trust. The executor died in 1799, having appointed as his executor the defendant. In 1834 a bill was filed by the parties interested in the legacy of je400, against the defendant. The defend- ant, in his answer, admitted that the said sum of je400 had been set apart and invested by Buscall, on the trusts of the will, and that the same fund had been invested and the income received by him- self, but plead the statute of limitations, as the suit ' Monroe v. James, 4 Muraf., 195; Miller v. Meetch, 8 Barr, 417; Rose- boom V. Mosher, 2 Denio, 61; Carter v. Carter, 10 B. Monr., 327; Trask v. Donoghue, 1 Aik., 373. » Williams v. Gushing, 34 Maine, 370; Dcering v. Adams, 37 Maine, 265- 800 NATURE AND QUANTITY OF was brouH. " Tidd V. Lister, 5 Mad., 429; Naylor v. Arnitt, 1 R. & M , 501 ; Hill oa Tnistees, 384. INCIDENTS TO THE ESTATE OF A TRUSTEE. 811 annuities, which are in arrears, the trustee should take possession of the estate, and give notice to the tenant to pay him the rents.* The legal estate being in the trustee, as a general rule, and as courts of law only recognize the legal owner, every action founded upon the legal title must be brought by the trustee or in his name.^ In ejectment, the demise must be laid in the name of the trustee.^ So the grantee of a trustee may bring ejectment in his own name, even if the transfer was a breach of trust," because a court of law will not examine the equitable relation of the parties. In Pennsylvania, ejectment may be maintained either by the trustee or cestui que trust, when entitled to the possession, because, in that State, it is an equi- table as well as legal action.^ Where the demise is laid in the name of the trus- tee, that which will show his legal title to the estate to be determined, will be a good defence. Thus, where the trust is terminated by operation of law;" or where there is a presumption of reconveyance or surrender.^ As trespass is an injury to the pos- session, the trustee may sue for trespass upon real • Jenkins v. Milford, IJ. &. W., 629. ' Mordccai v. Parker, 3 Dev., 425. * Cox V. Walker, 26 Maine, 504; Goodtitle v. Jones, 7 T. R.. 47; Beach V. Beach, 14 Vt., 28; Matthews v. Ward, 10 G. &. J., 443; Wright v. Doug- las, 3 Barb. S. C, 559. * Canoy v. Troutman, 7 Ired., 155; Reese v. Allen, 5 Gilra., 241; Taylor V. King, 6 Mumf., 38. ^ Hunt V. Crawford, 3 Pa. R., 426; Sch. Dr. v. Dunklebcrger, 6 Barr, 29; Presb. Cong. v. Johnson, 1 W. &. S., 56- • Nichol V. Walworth, 4 Denio, 385. ' Obert V. Bordine, 1 Spence, 394-, Hopkins v. Ward, 6 Mumf., 38, 812 INCIDENTS TO THE ESTATE OF A TRUSTEE. property, or the cestui que trust, according to the one who is in possession at the time of the injury.* For injuries hy trespass to personal property, the legal title drawing to itself the possession, the trus- tee must sue.'^ So, likewise, in trover.^ In general, trustees, in actions at law, are su])ject to the same rules of pleadings as other parties. Thus, on con- tracts made with former trustees, suit must be brought iu their names, as they were the original parties;* so, also, must trustees sue jointly.^ In case of bankruptcy of the debtor to tlie trust estate, the trustee is the person to prove for the debt." So may he sign the bankrupt's certificate, for that follows the right to prove.' Trust estates are subject to merge in the legal estate, where both estates come to the same person and are coextensive.^ In tlic ca.se of Wade v. Paget,* Lord Thurlow said it was universally true, that where legal and equitable estates unite, the equi- table must merge in the legal." But Lord Alvanley, in the case of Brydges r. Brydges,'° said that if the doctrine of merger were maintained in such latitude, it would create infinite confusion; and that it must ' Walker r. Fawcett. 7 Ired.. 44; Cox v. Walker, 2G Maine, 504. ' McRanoy v. Juhnson, '2 Flor. K p., 520. * Ilowcr r.Gecsaman.17 Sor. &. Raw., 251; Guphil r.Isbel, 1 Bail., 230; Hill on Trustees, 274, see note. * Ingcrsol V. Cooper, 5 Blackf.. 42G; see 1 Spear, 242, and 5 Vcrn., 500. * Brinkorhoffr. Wimple, 1 Wend., 470. ' Ex parte Green, 2 D.k CI1..IIG; ex parte Dickenson, 2 D. &. Ch.,520 ' Re Lawrence, 1 M. & A., 453. ' Cruise Dig., tit. 12, ch. 2, sec 34. •1 Bro. C. C.,363. >• 3 Yes., 126. INCIDENTS TO THE ESTATE OF A TRUSTEE. 813 be understood with this restriction, that it holds only where the legal and equitable estates are coexten- sive and commensurate/ Merger is defined to be "the annihilation, by ad of law°oi the less in the greater of two vested estates, meeting, without any intervening estate, in the same person, in the same right; or if in different rights, meeting in the same person, hy act of the 'party, and not by°mere act of law; and so that the person in whom the estates thus meet in different rights by act of the party, shall have an absolute power of alienation over both estates.^ Where the legal and equitable estates descend through different channels, and unite in the same person, and are equal and coextensive, and there is no beneficial interest which requires to be protected, or other just intention to be supported, the equitable estate will merge in the legal, both in law and in equity. In law the rule is"absolute; but in equity it depends upon circum- stances, as, the just and fair intention of the parties, or the purposes of justice.^ Mergers are not favored in equity, and are never allowed against the fair intention of the parties.^ Thus, where a person having a term of 1,000 years * See preceding note. ' Cruise Di:^., tit. 30, sec. 1; 3 Prest. Convey., IGl (Sd ed ) >Greenleaf's note, Cruise Dig., tit. 39, seel; 4 Kent's Com., 10-, Simonton .. Gray, 34 Maine, 50, Campbell .. Carter. 14 111., 28G; Knowles V Lawton, 18 Geo., 476; Reed v. Lat.son, 15 Barb. S.C.,9; see also Ma on V. Mason, 2 Sandf. Ch., 433; James r. Morey, 2 Cow., 246; James v. John- son, 6 J. C. R., 417 ; Healey v. Alston, 25 Miss., 190. „ , ^ , « 4 Kent's Com., 102; Donalds r. Plumb, 8 Conn., 453; Mech. Bank r. Edwards, 1 Barb., S. C, 272; Gardner r. Astor, 3 J. C R., 53. 814 INCIDENTS TO THE ESTATE OF A TRUSTEE. assigned it to the owner of the inheritance in trust, for his wife and chiklren, and the beneiicial interest in the term was afterwards assigned to the phiintiff, Lord Nottingham decreed that the phiintiff shouhl hold the premises, notwitiistanding the legal mer- ger; and tliat the heir at law of the ereator of the term, should make a farther assuranee to him for the residue of the term.' In case of legal merger, equity will not permit the interest of the cestui que trust to be destroyed. Tlius, where an estate for life, or for a term of years, is vested in a person upon trust, and the legal inheritance or any legal estate in immediate remainder, of equal or greater extent than the estate held in trust, is subsequently acquired by the trustee, the partial estate at law, will be merged. But equity will interfere and pro- tect the interests of tlie cestui que trust; and, if necessary, will decree the possession to the cestui que trust, during the period of the estate so merged; or by directing the revival of the merged estate.'^ It is the lesser estate which is extinguished by mer- ger; but the greater estate is not considered as enlarged by it; it continues after the merger, pre- cisely of the same quality and extent of ownership as before.^ As a general rule, equal estates will not merge.^ The merger is produced either from the meeting of an estate of higher degree with an estate » Saunders v. Bournford, Finch, 424; ITill on Trustees, 252. 'Hill on Trustees. 252; 1 Cruise Dig., tit. 8, ch. 2, sec. 47; Nurse r. Ycrworth, 3 Sw., 608; Thorn v. Newman, 3 Swanst., G03. '4 Kent's Com., 99; 2 Bl. Com., 177; Preston on Couv., Vol. III., 7. 15, 18, 23. INCIDENTS TO THE ESTATE OF A TRUSTEE. 815 of inferior degree, or from the meeting of the par- ticuLir estate and the immediate reversion in the same person. Thus, an estate for years may merge in an estate in fee, or for life ; and an estate 'per autre vie, may merge in an estate for one's own life; and an estate for years may merge in another estate or term for years, the remainder or reversion/ But where there is no incompatibility in the two estates subsisting in one and the same person at one and the same time, as making the same person his own landlord, or trustee for himself, no merger will take place.'^ Thus, a lease may be granted to a tenant j)cr autre vie, to commence when his life estate ceases, for he will never, in that case, stand iu tlie char- acter which the law of merger is calculated to pre- vent, of the reversion to himself "With respect to the duty of trustees in relation to real property, it is still held, in conformity to the old law of uses, that pernancy of the profits, execu- tions of estates, and defence of the land, are the three great properties of the trust. Therefore, a Court of Chancery will compel trustees, 1. To permit the cestui que trust to receive the rents and profits of the land; 2. To execute such conveyances as the cestui que trust shall direct; 3. To defend the title of the land in any court of law or equity."^ The legal title to the estate being in the trustee, the cestui que trust having only an equitable interest therein, can- ' 4 Kent's Com., 100; Preston on Conveyance, 182, 183, 201; James v. Plant, 4 Add. & Ellis, 749. ' 4 Kent's Com., ut supra. ' Cruise Dig., tit. 12, ch. 4, sec. 5. 81G INCIDENTS TO THE ESTATE OF A TRUSTEE- not convoy the Icj^al estate without the concurrence of the trustee. This concurrence he is entitled to, where he has the absolute interest in the trust, and is competent in the eye of the haw to direct the convey- ance of the estate. But the cestui que trust is only entitled to a conveyance where the wliole subject of the trust belongs to him.^ For if there are any charges on the land, as the payment of debts, lega- cies, annuities, &c., the legal estate cannot be taken from the trustee,* or where there are any contingent remainders to be supported, or any duty or trusts remain to be performed for the benefit of the remain- dermen, if the continuance of the leiral estate in the trustees be requisite for these purposes, the cestui que trust cannot compel a conveyance; for it would be a breach of trust for the trustees to divest themselves of the legal estate.^ As long as any of the original trusts remain to be performed the trustee cannot be required to divest himself of the legal estate.* Where the cestui que trust, in whom the absolute beneficial interest of the trust property is vested, has disposed of his entire equitable estate to a purchaser, such purchaser may require a con- veyance of the legal estate to him, without the con- currence of the cestui que trust. ^ But if there be any doubt or uncertainty as to the validity of the title of the assignee of the equitable estate, the . *Ibid, sec. 6, 7, 8; Boteler r. Allington, 1 Bro. C. C.,73; Hill on Trus- tees, 278, and authorities. * Cruise Dig., tit. 12, ch. 4, sec. 8; Carteret r. Carteret, 2 Pr. Wnis., 134 ^ Hill on Trustees, 279. * Carteret r. Carteret, 2 Pr. Wras., 134. * Goodsoa V. Ellison, 3 Russ., 583; Holford r. Pbipps, 3 Bcav., 431. INCIDENTS TO THE ESTATE OF A TRUSTEE. 817 trustee may require the concurrence of the original cestui que trust, or the sanction of the court. ^ When- ever the trustee is called upon to divest himself of the legal estate in the trust property, and he has any doubts as to his duty in the premises, he has a right to refuse to act without the advice and sanc- tion of the proper court, and whenever it appears that he acts in good faith, and under the advice of counsel, in refusing to convey, he will not be charged with costs.* If the trustees have notice of any disposition or incumbrance of the equitable interest by tlie cestui que trust, they ought not to transfer the legal estate to him, or any subsequent purchaser from him; and if they do they will be liable to the party of whose rights or title they had notice.^ Where a cestui que trust has sold a portion only of his beneficial interest, or rather, has sold his bene- ficial interest in a portion only of the trust estate, he cannot compel the trustee to divest himself of the moiety thus disposed of. Lord Eldon said, in the case of Goodson v. Ellison,'' it was quite new to him to be informed that you can call on a trustee, from time to time, to divest himself of the different parcels of the trust estate so as to involve himself as a party to conveyances to twenty different per- sons. Has not a trustee a right to say, If you mean ' Iim on Trustees, 280, and 3 Russ., 583. ' Hill on Trustees, 279; Knight r. Martin, 1 R. & M., 70; Angier v. Stan- narrt. 3 M. & K., 5G6; Poole r. Pass, 1 Beav., 600. ' Baldwin v. Billingsley, 2 Vern., 539; see 2 Bro. C. C, 391; 3 Russ., 1. * 3 Russ., 594; see Lyse v. Kingdom, 1 Col., 184. 52 818 INCIDENTS TO THE ESTATE OF A TRUSTEE. to divest me of my trust, divest me of it altogether, and then make your eonveyances i\s you think proper? ^ It has already heen remarked as a \vcll settled rule, that the trustee only holds the lepd estate for the benefit of the cestui que trust. There is, there- fore, another rule in equity, that no act of the trustee shall prejudice the cestui que trust.'^ This rule, how- ever, must' be understood with tliis limitation. Where the trustee is in actual possession of the estate, and, for a valuable consideration conveys it to a purchaser, who has no notice of the trust, such purchaser will be entitled tu hold the estate against the cestui que trust; because their equities are ecjual, and the court will leave the parties in the state in which it finds them when ecjuities are thus balanced, ' and beside equal equities, tlie legal estate is in the purchaser. And should the purchaser afterward sell the estate to another party who knew of tlie trust, such second purchiuo, by a UKijority of the court it was lieUl that a purcha.ser would bo protected by a paynunt of the purchase money, though before conveyance executed. And so again in Pennsylvania, contrary to the Engli.sh doctrine, payment of a part of the purcha.sc money will be pro- tected pro tanto. Youst r. Martin, 3 S. & R., 430; Bellas r- McCarty, 10 Watts, 13; Juvenal r. Patterson, 16 Barr, 282; 14 Penn. St. Rep,, 510; Auer d. Flagg r. Mann. 2 Suran., 4845; Frost v. BtH'kraan, 1 J. C R.. 288. Actual paymiMit is, moreover, usually decided to be necessary. Murry r. Ballou, 1 J. C. R., 5*36; Jackson r. Cadwell, 1 Cow., 022; Christie r. Bishop,! Barb. Ch., 105; McBee r. Loftis, 1 Strob. Eq., 90. But tho notes of third persons, (Jewett v. Palmer, 7 J Ch. R., 65,) or those of the vendee, if actually negotiated. (Frost r. Beekraan, 1 J. C. R., 288, Free- man V. Demming. 3 Sandf. Ch., 327.) are equivalent to payment for this purpose. In Pennsylvania, valuable improvements before notice, (Boggs r. Warner, 1 W. &. S., 4i39.) or payment of part and the rest secun'd to be paid on a contingency, (Bellas r. McCarthy, 10 Watts, 13). See also the discussion of this question, American notes, 2 Lead. Cas. Eq., 20, 32. ' Hill on Trustees, 165, and authorities; see also 4 Wheat, 466; 2 Sandf. Ch., 98; Mumf., 40; 19 Wend., 339; 4 W. & S., 108. ' 2 Sugd. y. k P., 2TG, (0th ed.) ; Farnsworth v. Child, 4 Mass., 640; Hamilton v. Royce. 2 Sch. & Lef., 315, 327. INCIDENTS TO THE ESTATE OF A TRUSTEE. 821 sion. Constructive notice of the trust, is merely that degree of evidence of notice which raises so violent a presumption that the court will not permit it to be controverted/ Without investigating this ques- tion particularly in this place, it may be sufficient to say that there are certain acts and things of which all mankind are presumed to have notice. Such as public acts of the Parliament, or of the Legislature ; ^ the pendency of a suit in respect to its subject mat- ter ; the registration of a deed under the recording acts, in force generally in the United States. But of these in another place. Those circumstances which are sufficient to put a purchaser upon an inquiry, which would lead to a discovery of the trust, will be deemed a good con- structive notice of it.'' Thus, it is to be presumed that every person who seeks to purchase real estate will be careful to ascertain the title he is to acquire. If the vendor is not in possession of the estate, this will be sufficient notice of an outstanding interest, the nature and extent of which the vendee is bound to ascertain ; and if he purchases without inquiry, he does so at his peril.^ The legal estate of real property being in the trustee, he is presumed to be ' 2 Sugd. V. and P., 278, (9th ed.) ; Rodgers v. Jones, 8 N. H., 264; Farnsworth v. Childs, 4 Mass., 640; 1 Hoff. Ch., 156. ' 2 Sugd. V. and P., 280; 2 Ves., 480; 3 Bos. & Pul., 687. » 2 Sugd. V. and P., 290, (9th ed.) ; Taylor v. Baker, 1 Dan., 71; Oliver V. Piatt, 3 How. U. S., 333; Barnes i'. McClinton, 3 Pa. R., 69; Hood v. Fahnestock, 1 Barr, 470; Knouflft). Thompson, 16 Pa. St. R.,357; Sigour- ncy V. Munn, 7 Conn., 324; Jackson v. Cadwcll, 1 Cow., 622. * Flagg V. Mann, 2 Siimn., 556; Krider v. Lalferty, 1 Whar., 303; Kent r. Plummer, 7 Greenl., 464. 822 INCIDENTS TO THE ESTATE OF A TKL'STEE. entitled to the possession thereof. Therefore a pur- chase from a trustee who is not in actual ])ossessi(>n at the time, cannot be supported as against the equities of the cestui que trust ; for th« possession of the cestui que trust is notice of the existence in him of some interest, the nature and extent of whicli the purchaser is bound to incjuire into.' What will amount to sufhcient proof of actual or constructive notice must be left mainly to the peculiar circum- stances of each particular case, as it is impossible to lay down any general rule as to what will amninit to sufficient proof. The court will not act upon mere suspicion. Tiic Lord Chancellor, in the case of Ware v. Lord Egmont,"^ said: "Where a person has not actual notice he ought not to be treated as thou'di he had notice, unless the circumstances are such as enalde the court to say that, not only he might have acfiuircd, but also that he ought to have accjuired the notice with which it is sought to affect him, and which he would have accpiired but for his own gross negligence in the conduct of the business in question. The question, where it is sought to affect a purchaser with constructive notice, is not whether he had the means of obtaining, and might by prudent caution have obtained knowledge, but whether the not obtaining it was an act of gross and culpable negligence."^ The question sometimes arises whether the trustee * Chesterman v. Gardner, 5 J. C. R., 29; Scroggins r. McDonald, 8 Alab., 385; Le Never. Le Neve, 2 Lead. Ca. Eq. 150, and American notes; Hardy r. Summers, 10 G- k J., 316. «24L. J. Oh., 3G6; 19 Jur., 97. INCIDENTS TO THE ESTATE OF A TRUSTEE. 823 can be required to warrant the title to the vendee, and if so, to what extent. It is now well settled as a general rule that the trustee cannot be required to enter into any covenants of title beyond the usual one, that he has done no act to incumber the estate.^ It has been laid down as a rule amono- conveyancers, that where lands are conveyed or devised to trustees upon a trust to sell, that the per- sons entitled to the money arising from such sale are bound to enter into the usual covenants with the- purchaser, for the title, because they who were- entitled to the beneficial interest in the land* were to be considered in equity as the real owner* of it. In the case of Lloyd v. Grifhth,- T. Lloyd devised certain estates to trustees, upon trust, out of the rents and profits thereof, or by selling or mortgaging the same, to raise such sinEia a.s should be sufficient to discharge a mortgage afiecting art estate which the testator had settled by deed upon Mrs. Hester Webb, as also his justj debts. The estates were sold for je27,000, and a draft of the deed of conveyance was prepared, to. which Mrs. Webb was a party, and made to enter into the usual covenants. It was objected by the counsel of the grantors that Mrs. Webb, was not bound to enter into any covenants for the title. But Mr. Booth, • Cruise Dig., tit. 32, ch. 26, sec-. 87; see also Van Epps i-. Schenectady, 12 Johns., 436; Sumner r..Wi]liams, 8 Mass.. 162; Dwincl r. Veazie 36 Maine, 509; 11 111., 24, and 5 Mucd-.,295; Worley v. Frampton. 5 H^re 560. ' ' 3 Atk., 264; Cruise Dig., tit. 32, ch. 26, sec. 85, 86; but see Wakeman V. Duchess of Rutland, 3 Ves., 223, 504; 8 Bro. Part. Ca., 145; Att'y Gen. V. Morgan, 2.Ruf!s., 3D6.. 824 INCIDENTS TO THE ESTATE OF A TRUSTEE. •^vllO made the draft, insisted that it was the common practice where a person devised an estate to trustees, upon trusts, to sell, and pay over money to J. S., and the estate was sold hy the trustees, to recjuire J. S. to enter into the usual covenants for the title, because he held the real l^eneficial interest in the estate, and in equity was the owner. The counsel not being able to agree, the draft of the conveyance was referred to the master, who reported that Mrs. Webb was not bound to enter into covenants for the title. Exceptions were taken to the report, and Lord Ilardwick made the followinc; order: " Let the exceptions be allowed and let the master alter the draft of the conveyance by inserting therein proper covenants from Mrs. Webb, against her own acts, and the acts of Mr. Thomas Lloyd, her devisor, as to so nuich as she would be benefited by the estate." * It is contended, and very properly, that an exe- cutor might be compelled to enter into covenants so framed as not to remler liiin or his heirs or exe- cutors lia]>le for breaches of covenant, committed after he or they had assigned the term, beyond the value of the personal estate of the testator in his hands, not applicable to other debts having a pri- ority, kc, thus placing him substantial!}' in the same position as if the testator himself had entered into the covenant.* As already stated, at common law the legal estate in the trustee had precisely the same properties and ' See preceding note. ' See Hill on Trustees, note (1), p. 281, 8d Amer. cd.; Jurist. Dec 2:, 1855, Vol. XIX., p. 500; Rawle's Gov. for Title, 419. INCIDENTS TO THE ESTATE OF A TRUSTEE. 825 incidents as if the trustee had the entire beneficial interest therein. Thus, if a trustee marry, the wife at law, would be entitled to dower in the trust estate,' or if a female trustee marry, the husband at law, would be entitled to his curtesy.' But in equity, both the dowress and the tenant by the cur- tesy, are required to recognize the right of the cestui que trust. And, as the trust estate may be disposed of by the trustee in his lifetime, so, also, may it be by devise or bequest, at his death. But in all these cases the legal estate only passes, subject to the rights of the beneficiary. The trust estate may pass from the trustee, at death, either by the mere operation of law, as where it descends to his heirs or personal representatives, or by the act of the trustee, as by devise or bequest. But the same words in a will which will pass a legal estate, coupled with the beneficial interest, will not always pass the trust estate. In the case of passing the trust estate, it becomes necessary to take into con- sideration not only the words of the instrument, but also the attending circumstances, for the pur- pose of ascertaining the intention of the testator ; for if he intend to pass the trust estate, that being ascertained, the intention will govern. It has been seriously questioned whether a general devise of the testator's estate will pass those estates which he holds in trust.^ But in the case of Bray- * Noel V. Jevon, Freera., 43. ' Bennet v. Davis, 2 P. Wms., 319. » Marlow v. Smith, 2 Pr. Wms., 198; Att'y Gen. v. Bailer, 5 Ves., 3i0} Richardson ». Woodbury, 43 Maine, 206. 82G INCIDENTS TO THE ESTATE OF A TRUSTEE. brook V. Inskip,' Lord Elclon decliircd, us the result of all the ciLscs he had exiiiniiied, the rule to be that, " where the will contained words large enough, and there was no expression authorizing a narrower construction, nor any such disposition of the estate as it was unlikely a testator would make of })roperty not his own, the trust estate would jiass." ' But where the directions in the will recpiired such a dis- position of the estate as would not be consistent with fidelity on the part of the trustee, such direc- tions would be deemed a suflicient indication that the testator did not intend to pass a mere trust estate, upon the principle that a breach of trust will not be presumed. Thus, where the testator charges the estate with the payment of debts, legacies, annu- ities, &c., or where he requires the estate to be sold, &c.,'^ or gives any direction as to the disposition of the estate, which implies that he intended to dis- pose of the beneficial interest as well as the legal estate, it will be deemed sufficient to exclude trust estates from the operation of the will.^ This prin- ciple has likewise been observed in very many instances in the United States/ Indeed, it seems » 8 Ves., 417. 436; sec also ex parte Morgan, 10 Ves., 101 ; Hoc r. Rcadc, 8 T. R., 118; llawkina r. Obeen, 2 Ves., 659; Richardson r. Woodbury, 4.3 Maine, 206. ' Braybrook v. Inskip, 8 Ves., 436; see also Duke of Leeds r. Munday,3 Ves. 348; Att'y Gen. r. Vigor, 8 Ves. 273; Tlmmpson r. Grant. 4 Mad. 438. ' Langford v. Auger, 4 Hare, 313; Sylvester r. Jarnian, 10 Price, 78; Rackham v. Siddall. 16 Sim., 297; Hope v. Liddle. 21 Beav., 183; LindscU V. Thacker, 12 Sim., 178; Cruise Dig., tit. 38, eh. 10, sec. 140. * See Merritt v. Farmers' Fire Ins. and Loan Co., 2 Edw. Ch., 547; Heath v. Knapp, 4 Barr, 228; Ballard v. Carter, 5 Pick., 112; Jackson v. Dc Laney, 13 Johns. R., 537. I^'CIDE^TS TO THE ESTATE OF A TRUSTEE. 827 necessarily to follow from considering the legal estate to be in the trustee. The conflict of authorities upon the question whether a general devise will pass the estates which the testator holds in trust, without some particular words or purposes designating such intention, arises upon the presumption which is to govern. The rule at first was, that a general devise would pass the trust estate, that is, a mere passive or dry trust.' The propriety of this rule was afterwards doubted, and it was at length determined that a general devise would not he sufficient, unless there appeared a posi- tive intention that the trust estate should pass.*' It is remarked in a note, page 259, vol. 97, Law Library, Lewin on the Law of Trusts and Trustees, that the doubt Avhether a general devise would pass the estates which the testator held in trust, arose in part from an expression of Lord Hard wick, in Casborne v. Scarfe, above cited, "that by a devise of all lands, tenements and hereditaments, a mort- o-age in fee would not pass, unless the equity of redemption were foreclosed." But, it is added, "Lord liardwick was not speaking here of the legal estate, but of the beneficial interest in the mortgage." Whatever might have given rise to the doubt, it seemed to be considered the law until in the case of Lord Braybrook v. Inskip,' Lord Eldon laid down » 2 Pr. Wms., 198; Sir Thomas Littleton's Case, 2 Ventr., 351 ; ex parte Sergison, 4 Ves., 147. ' Att'y Gen. v. BuUer, 5 Ves., 339; Casborne v. Scarfe. 1 Atk., 605, and Mr. Sanders' note thereto; Pickering v. Vowles, 1 B. C C, 198; Strode v. Russell, 2 Vera., 625; ei parte Brettcll, 6 Ves., 577, and 8 Ves., 437. » 8 Yes., 417; 432. 828 INCIDENTS TO THE ESTATE OF A TRUSTEE. the* contrary rule, that is, tliat a general devise wouM pass trust estates, where the will contained words large enough, and there was no expression requiring a narrower construction, or any disposition of the estate a testator would he unlikely to make of pro- perty not his own. This latter rule of Lord Eldon has generally been followed since, especially in cases of mere dry trust estates/ There has heen, and still is, some question as to the power of the trustee, where he is charged with the performance of active duties, to dispose of the trust estate by will. It is a well settled principle, that where the trust is a matter of confidence reposed in the trustee, accompanied with discretionary powers and duties of management, they cannot be delegated by him to another, unless the instrument creating the trust confer such power upon him.'^ Therefore, if a trus- tee, in whom conlidence is re})()sed by committing to him the active management of the trust, should, without special authority contained in the instru- ment creating the trust, devise the estate, the legal title might pass to the devisee; but he would not be authorized to undertake the management of the trust.^ In the case of Cook v. Crawford,^ where there was a limitation to the surviving trustee and his heirs, omitting the word assigns, it was held not to authorize a devise of the trust estate. And * Cruise Dig., tit. 38, ch. 10, sec. 140; Hill on Trustees, 283, note (1), American authorities. " Wilkinson v. Parry, 4 Russ., 272; Chalmers v. Bradley, 1 J. & W., 68. ^ Mortimer v. Ireland, 11 Jur., 721; 6 Hare, 196; Cook r. Crawford, 13 Sim., 91; Lord Braybrook v. Inskip, 8 Ves., 417, 432. * 13 Sim., 91. INCIDENTS TO THE ESTATE OF A TRUSTEE. 8^9 although this decision has been questioned, in more recent discussions in England/ the point has not been overruled; and it would be deemed unsafe for a trustee to attempt to devise a trust reposed in him, or for a devisee of such trust to attempt to exer- cise it. In the case of Cook v. Crawford, the Vice Chan- cellor expressed a strong opinion against the pro- priety of the trustee's devising his estate, upon general principles, saying that he saw no substantial distinction between a delegation of the trust by an act inter vivos, and by devise, for the latter was nothing but a post mortem conveyance. But Lord Langdale, in the case of Fitley v. Wolstenholme,'^ expressed strongly his disapprobation of the doc- trine. He thought there was a wide distinction between a conveyance operating in the lifetime of the trustee, and one only taking eftect at the time of his death ; for the personal discretion was confided to him during his life, which he could not delegate; but the settlor could not have reposed any personal confidence in his heir, not knowing beforehand Avho he might be ; and beside, if the estate were allowed to descend it might become vested in married women, infants or bankrupts, or persons out of the jurisdiction, and therefore he could not hold it to be a breach of trust to transmit the estate by will to a trustworthy devisee,^ and this doctrine of Lord Langdale was sustained in the case of Beasley v. Wil- ' See 9 Jur., pt. 2, p. 129, 181; 7 Beav., 425. » 7 Beav., 435. 8,30 INCIDENTS TO TUE ESTATE OF A TRUSTEE. kinson/ where a sole Piirvivin^ trustee devised all estates whieh nii^^dit l)c vested in liiin at his decease as trustee, and which he could devise without breach of trust, upon the trusts affecting the same respect- ively ; and it was held that the estate vested in the devisee.' Such a devise undoul)tedly would vest in the devisee all such trust estates as would not in- volve a breach of trust. But the question would still arise, by what rule shall such estates as will not pass under that designation, be determined. There are trust estates which would not pass under such a description ; such as vest in the trus- tee trusts and powers purely discretional ; or such as are strictly matters of personal confidence.' But in other cases, and especially where the estate is vested in the tnistee, his executors, administrators and assigns, in trust, for the purposes designated, without any provision in the instrument for ap- pointing other trustees, it would not be deemed a breach of trust for the trustee to devise the estate to a trustworthy devisee.^ But there are cases where the word assigns will not be construed to mean the devisee, as where the settlement should contain a power of appointing a new trustee.'' It would seem from an examination of the cases, ' 13 Jur., 049. ' Mortimer v. Ireland. 11 Jar., 721. * Braybrook i'. Inskip. 8 Ves., 417, 434; Titleyr. Wolgtcnholmc, 7 Beav., 436; Lane r. Debonham, 17 Jur.. 1005; Saloway v. Strawbridge, 1 Kay & Johns., 371; McDonald v. Walker, 14 Beav., 556; but see Wilson r. Ben- net, 5 DeGr. & Sim., 98. * Fordyce r. Willis, 2 Phil., 497; see also Wilson v. Bennett, ut supra; Re Burtt's Estate, 1 Drew, 319. INCIDENTS TO THE ESTATE OF A TRUSTEE. 831 that no definite rule has yet been fixed upon by the court, by which to determine, in doubtful cases, where the trust will, and where it will not, pass to the devisee ; and that the propriety or impropriety of such devises must depend upon the circumstances of each particular case. Where the intention of the settlor will permit it, and it is certain that the heir apparent or presumptive will be an inftxnt, a bankrupt, an insolvent, a lunatic, a feme covert, or out of the jurisdiction, it will not only be proper, but it will be the duty of the trustee to transmit the estate by devise, to a trustworthy devisee.^ The question whether the legal estate of a mortgage in fee passes by devise, depends often upon other con- siderations. In some States, the legal estate is in the mortgagor until forfeited by non-payment, or the non-fulfilment of the conditions; and the mortgagee has only a beneficial interest as security.^ These questions in such States, must be determined by ascertaining in each particular case, the nature of the testator's estate in the mortgaged premises. In determining the effect of a general devise, it is usual to treat estates vested in the testator as trus- tee and mortgagee alike, for upon the execution of the conveyance by which a mortgage is created, the legal estate of freehold and inheritance, or the legal estate of the term of years created by the mortgage, becomes immediately vested in the mort- gagee."^ But nevertheless there is a distinction ' Lewin on Trusts, &c., 268. ' Ragland r. The Justices, 10 Geo., 65; also in Ohio. * Cruise Dig., tit. 15, ch. 2, sec. 1; 4 Kent's Com., 155. 832 INCIDENTS TO THE ESTATE OF A TUUSTEE. between the two «;ljisses of cases which shouM not be lost si<^ht of. The mortgii','ee bus a bcnelicial interest in the estate, as a security ; and this is strongly in favor of the legal estate passing to the person wlio is to receive the mortgage money,' and, beside, the mortgagee often stands in the relation of vendor to the purchaser, who, before the conii)letion of the conveyance, is a trustee for the vendee; and the estate will pass by a general devise where it would not have been included had the testator been an express trustee. Said Sir T. Plunmier, in the case of Wall v. Bright,'^ " For many purposes a con- structive trustee stands in a diflerent situation from a naked trustee. A mere trustee is a person who not only has no beneficial ownership in tin- pn»i)t, uml i-«'«|uiris no nrdor for that purpose ; ])ut tlie general niK' must he applied to him, that a trustee is not entitled to compensation for personal trouble and loss of time.*' ' Lord Ilardwick declared, "that in »:eneral, this court looks ui)un trusts as honorary, and a burden vpon the honor and conscience of the person entrusted, and not undertaken upon mercenary views." '^ In the case of Greene v. Winter,^ Mr. Chancellor Kent declared, " that even were he free from the "vveiefore he undertook to question the wisdom of this rule." And again he added, " nor does the rule strike me as so very unjust or singular and extraordinary ; for the acceptance of every trust is voluntary and confidential, and a thousand duties are required of individuals, in relation to the con- cerns of others, and j)articularly in respect to numerous institutions, partly of a private and partly of a puhlic nature, in which a just indemnity is all that is expected or granted. I should think it could not have a very favorahle influence on the prudence or diligence of a trustee, were we to pro- mote, hy hopes of reward, a competition, or even a desire for the possession of private trusts, that relate to the monied concerns of the helpless and infirm."* But, although such is the English rule at common ' Brocksopp r. Barns, 5 Madd., 90. ' Ayliffe V. Murray, 2 Atk., 58. = 1 Johns. Ch., 37. * Manning v. Manning, 1 Johns. Ch., 5-34. COMPENSATION OF TRUSTEES. 837 law, and was very early recognized in some of the States, the rule now acted upon in the United States is quite different. " Although, as a general principle of equity, no rule can be more salutary, and none is more universally recognized than that a trustee shall not profit by his trust, yet when carried to the extent of denying a reasonable compensation for his services, it can scarcely be said to have at the present day any application in this country. The state of our country, and the habits of our people are so different, as to induce the Legislatures of nearly all the States to introduce pro\^sions by statute for competent remuneration to those to whom the law commits the care and charge of the estate of infants and deceased persons, °and the courts make a reasonable allowance to receiyers appointed by them, besides reimbursing tlieir expenses. And the equity of the statute is, by construction, generally extended to conventional trustees when the agreement is silent."^ Mr. Justice Story, remarking upon the reasons assigned for not allowing trustees, &c., any com- pensation for their personal services as trustees, adds, "to say that no one is obliged to take upon himself the duty of a trustee, is to evade and not to answer the objection. The policy of the law ought to be such as to induce honorable men, with- out sacrifice of their private interest, to accept the office, and to take away the temptation to abuse the trust for mere selfish purposes, as the only in- ^ 2 Load. Cas. in Eq., 228; Boyd .. Hawkins, 2 D.v. Eq. Rep., 334. 838 COMPENSATION OF TKUSTEES. demnity for services of an important and anxious character."* Under the English ride, any one ;?tanding in a fiduciary rehition \vill not be alUnved to derive any profit beyond the sahiry of his oiricf, and it lia.s been extended to the chairman or director of a railway company." The rule is, also, applicable to an executor carrying on the business of his deceased partner.^ Neither will an executor or trustee be permitted to make a ])r()fit out of his trust \)\ his professional business ; as a factor acting as executor, is not entitled to a commission/ nor can an attorney or solicitor charge his cestui que trust but for expenses and costs out of pocket,^ nor can his partner." But where a solicitor is a trustee, and as trustee is a defendant, and is held to be entitled to his costs, the court will direct them to be taxed lus between solicitor and client.' But where a mortgagee had acted as his own solicitor, in a suit in defence of his own title, the Vice Chancellor, Sir R. T. Kin- ' Story's Eq. Jur., sec. 1'208; Barney r. Saunders, 10 How. U- S. Rep., 642; Shirley v. Shatlutk, G Cush., 26. ' York, aud North Midland H. R. Co. r. Hudson, 16 Bcav., 48r>. ' Burden v. Burden, 1 V. & B., 170; Stocken v. Dawson, 6 Bcav., 371- ♦ Scattergood v. Harrison, Mos., 128; Sheriff r. Axe, 4 Russ., 33. But the court can, in its discretion, appoint an executor or trustee a consignee, with the usual protits. Marshall r. HoUoway, 2 Sw.. 432; and see Morri- son I'. Morrison, 4 My. & Cr., 215, 224. * New ». Jones, 1 Hall &. T., 632; Bainbridgo v. Blair, 8 Bcav., 588; Todd V. Wilson, 9 Beav., 486; Gomlcy r. Wood, 3 J. &. L., 702; Lyon r. Baker, 5 DcG. & Sm., 622; see also Lincoln v. Windsor, 9 Hare, and Broughton v. Brought on, 2 Sm. & Giff., 422; 5 DeG., Mac & G., 160. ' Collins V. Carey, 2 Beav., 129; Christophers v. White, 10 Beav., 523; Lyon V. Baker, 5 DcG- & Sm.. 622. ' York V. Brown, 1 Coll., 260. COMPENSATION OF TRUSTEES. 839 dcrsley, refused to allow him, as against a second mortgage, any other than costs out of pocket.^ An executor appointed in the East Indies, in passing his accounts in a Court of Equity in Eng- land, is entitled to a commission of five per cent., upon the receipts of payments, according to the practice in the East Indies. Lord Rosslyn, in allowing the commission, observed "that the appoint- ment of an executor in India, no legacy being given to him, was the appointment of an agent for the management of the estate ; that there could be no possibility of getting the business done at all with- out the aHowance; and if the executors in England were to get a person to do the business in India, they could not get it done so cheap." '^ But where the testator has given to the executor in India a lejcacv for his trouble, he will not be entitled to his commission unless he renounce the legacy, nor will he be permitted to do that after a long lapse of time.* So, also, trustees and guardians managing the estates of West India proprietors, are entitled to a commission of six per cent., as long as they per- sonally take care of the management and improve- ment of the estates committed to their charge ; but not if they leave the island and trust the manage- ment to others acting as their attorneys.^ • Selatter v. Cottam, 3 Jur., N. S., 630- 'Chetharu v. Lord Audley, 4 Ves., 72; see Matthew w. Bagshawe, H Bcav., 123. ' Freeman v. Fairlee, 3 Mer., 24. * Chambers v. Goklwin, 5 Ves., 834; 9 Ves., 254, 273; Denton v. Dayy, 1 Moor Par. C. C, 15. and Henckell v. Daly, ib., 51; Forrest v. Elwes, 2 Mer., G8; see Jamaica Act, 24 (Jeo. IL, ch. 10, sec. 8. 840 COMPENSATION OF TRUSTEES. And, although trustees and executors will not, in the ahsence of contract, or other provision made by the creator of the trust, be allowed any remuneration for their trouble and loss of time, they may, in special cases, employ agents whose expenses will })e allowed out of the estate. Thus, a trustee may, in a })rt>{)er ca.se, employ a bailitV to manage an estate and receive the rents.' So, although a solicitor, he may employ another solici- tor to do his business for him in tlie management of the testiitor's aflairs ; * or an accountant may also be employed, if the accounts are of a dillicult nature or very complicated,' or an agent may be employed to collect debts on a commission.* Hut the propriety of such employments, and the amount of compensation to be paid, are peculiarly within the sound discretion of the court ; and they will be allowed in the accounts or not, as e(iuity shall seem to rciiuire." But the creatorof the trust may direct, generally, that a compen.sation shall be paid to the trustee for * Bonithon r. Hickinore, 1 Vern., 311'.; Stowart r. lloare, 2 Bru. C. C, 663; AVilkinson r. Wilkinson, 2 S. & St., 2.37; McWliorter r. Benson. Ilopk., 28; Cairns v. CliaulKrt, 9 Paipe. 164; Collins r. Hoxio, 9 Paip>, 37; Jiwftt r. Woodward, 1 Ed. Ch., 20O, but .sec also Meacham r. Sterns, 9 Paigi', 407. ' Macnaumara r. Jones, 2 Dick., 587; Stancs r. Parker, 9 Bo.iv., .",89; McWhortcr v. Benson, Ilopk., 28; Cairns v. Chaul)ort, 9 Paige, 164; Ual- sey r. Van Amringc, 6 Paige, 12; Burtis v. Dodge, 1 Barb. Cb., 91. » Henderson v. Mclver, 3 Madd., 27.5; Now v. Jones, 1 Hall &. T., 6-34. * Weiss r. Dill, 3 My & K., 26. ' See Weiss r. Dill, 3 My. & K., 26, and the remarks of Sir Jobn Leach, M. R.; and see llopkinson r. Roe, 1 Beav., 180; Day r. Croft, 2 Beav., 488; ex parte Cassel and Spayde, 3 Watts, 443; Swartswalter's Accounts, 4 Watts, 79. COMPENSATION OF TRUSTEES. 841 his care and trouble ; and if he does not fix the amount, a reference will be directed to settle what will be a reasonable and just allowance ; ^ or he may fix the compensation at a particular sum, or by a salary." So, also, a trustee or executor may contract with a cestui que trust to receive some compensation for acting, or to make professional charges for acting. But such contracts will be most carefull}- watched by the court, and, unless perfectly fair, and obtained without any undue pressure upon the cestui que trusty will not be enforced.^ In the case of Ayliffe v. Murray, the executors and trustees refused to prove the will, or act in the trust, or permit the cestuis que trust to take out letters cum testamento annexOy until he had executed a deed by which he was to pay to one of tlie executors, who was a solicitor and drew the will, jelOO, and to the other je200, over and above their legacies. A bill was brought for a specific performance, and for an account. But Lord Hard wick declared that the deed was unduly obtained, and decreed that no allowance should be made for the sums of jEIOO and je200. His Lordship admitted that a contract for an extra allowance might be made on the part of a trustee with a cestui que trust, which the court would sanction; but at ' Ellison V. Airey, 1 Ves., llu; Willis v. Kibble, 1 Beav., 559; Jackson V. Hamilton, 3 J. & L., 702; and see Bainbridge r. Blair, 8 Boav., 597. * Webb V. Earl of Shaftesbury, 7 Ves., 480, and Baker v. Martin, 8 Sim 25. *' ' Ayliffi' V. Murray, 2 Atk., 58; see also re AVynch, 11 Beav., 209, and re SlRTNsv.od. 3 Beav., 338; see also Gould r. Fleetwood, Mich., 1732- 3 P. Wms., 251, n. (A), and 2 Eq. Ca. Abr., 4.53, pi. 8. S42 COMPENSATION OF TRl'STEES. the same time it wouKl bo watched with preat jealousy, and the court would be extremely cautious and wary in doinir it.* 80, also, a trustee may contract with the court that he will not undertake the trust without proper compensation; and if he has undertaken the trust upon an understanding that application should l>e made to the court for compensation, a reference will be made to a master to ascertain and settle what would be a reasonable allowance both for ptvst and future services in the trust.* The rules regulating the compensation of those acting in a fiduciary capacity, in the several States, varv in so many particulars that a systematic clas- sification of them would be very difticult. It may be laid down, however, as a universal rule, that com- pensation for labor and services rendered lus trustee, executor, etc., is deemed to be rea.'^onable and just ; and where no special statute exists authorizing or requiriu'^ it to be given. Courts of Equity, in their iust discretion, make what they deem to be a rea- sonable allowance.' In Pennsylvania there was an act passed in 1713 which authorized the Orphan's Courts to order the pavment, by executors, of such reiisonable fees for copies, and ''all other charges, trouble and attend- * See preceding note. ' Marshall r. HoUoway, 2 Swans.. 4.32; Brocksopp r. Barnes, 5 Madd., 90; Morrison r. Morrison, 4 My. k Cr., 215. * In Pennsvlvania. ex parte Cassel r. Spayd. 3 Watts. 443; Swarts- walters Account, 4 Watts. 79; Wilson r. Wilson, 3 Binn., 500; Anderson c.>"eff. 11 S.&R.,218; see remarks of Tilghman, C J., in Pusey r Clemson,9S.&R.,209. COMPENSATION OF TRUSTEES. 843 ance, which any officer or other person should neces- sarily be put to," as the court should deem just; and compensation to trustees, guardians, &c., seems to have been sanctioned by practice, upon an equi- table construction of this statute.^ But by the Re- vised Statutes of 14th June, 1836, it is provided, "that it shall be lawful for the court, whenever compensation shall not have been otherwise pro- vided, to allow such compensation to assignees, trustees, &c., out of the effects in their hands, for their services, as shall be reasonable and just." In New York, by the act of 1817, it was made lawful for the Court of Chancery, in the settlement of accounts of guardians, executors, and adminis- trators, to make them a reasonable allowance for their services as such, over and above their expenses.* Under this statute an order in chancery was made, directing that the allowance for receiving and pay- ing money should be five per cent, on all sums not exceeding one thousand dollars; two and one-half per cent, on any excess between one thousand and five thousand, and one per cent, for all above that amount.' This rule has been adopted in the Re- vised Statutes,* which provide further that in all cases such allowance shall be made for their actual and necessary expenses as shall appear just and rea- sonable ; and that where any provision shall be made ' Prevost V. Gratz, 3 Wash. C. C. Rep., 434; Hackert's Appeal, 12 Harris, 486. » See Matter of Roberts, 3 Johns. Ch., 43; see Laws 1817, p. 292. » 3 Johns. Ch., 630. * 2 R. S., 93, sec. 58, clauses 1, 2, 3, and see also 3 R. S. 1&.j9, p. ISO. 844 COMPEXSATIOX OF TRUSTEES. by any will for specific compensation to an executor, the same shall be deemed a full satisfaction for his services, in lieu of the allowance aforesaid, or his share thereof, unless such executor shall, by a writ- ten instrument to be filed with the surrogate, renounce all claim to such specific legacy," ' and by equitable construction these provisions have been extended to committees of lunatics, idiots, etc.;'" and also to trustees under any express trust, where the trust instrument was silent; and that the trustee, upon the settlement of his accounts, will be allowed the same fixed compensation for his services by way of commissions, as are allowed by law to executors and guardians, to be computed in the same manner.^ It is held that the discretion of the court in these cases is confined to the manner of compensation, and that it cannot sanction any specific charge or per diem allowance/ The language of the statute is, " they shall be allowed for receiving and paying out," but it does not specify how much is to be allowed for receiving, and how" much for paying out ; and, it sometimes happening that the one receiving was not the one paying out the fund, it became necessary for the ' 2 R. S., p. 93, sec. 59. As to the construction of these provisions, see Dakin v. Denning, 6 Paige, 95; Stevenson c. Maxwell, 2 Sand. Ch.. 284. 'Roberts' Case, 3 Johns. Ch., 43; Meachara v. Sterns, 9 Paige, 403; Livingston's Case, 9 Paige, 442; De Peyster's Case, 4 Sand. Ch., 514; see also remarks of Davies, J., in Wagstaffe v. Lowerre, 23 Barb., 224, on the subject of commissions on lands. &.c. » Meacham v. Sterns, 9 Paige, 403; "Wagstaffe r. Lowerre, 23 Barb., 224. * McWhorter v. Benson, Hopk., 28; Vanderheyden r. Vanderheyden, 2 Paige, 288; Valentine c. Valentine, 3 Barb. Ch., 438. COMPENSATION OF TRUSTEES. 845 court to construe the statute and settle the rule in such cases. The rule in general, is settled to be, to allow one-half the commission for receiving and one- half for paying out} In Kellogg's case/ the guardian had been allowed commissions for receiving and paying out the amount of the legacy bequeathed to his ward, although its principal part had been invested by him. Chancellor Walworth remarked, that this mode of computing the commission, would be correct if the infant were then of age, and a final settlement of the account of the guardian were being had, with a view of turning over the whole to the ward. But tliat it was not the intention of the legislature or court to sanction the principle of allowing the guardian or trustee full commissions upon every receipt and re-investment of the trust fund com- mitted to his care, &c. That the result of such a principle of computing allowance for commissions, if the investments were made from year to year, and the accounts rendered annually, would be to give the trustee his full commissions upon the prin- cipal of the trust fund every year, as well as upon the income received and expended from time to time. The proper rule, therefore, for computing the commissions upon the first annual statement or passing of the accounts of the guardian, receiver, committee, etc., who is required to render or pass his accounts periodically, during the continuance of the trust, is to allow him one-half of the commis- ' See Walworth, Chancellor, in Kellogg's Case, 7 Paige, 2r37; see also Livingston's Case, 9 Paige, 403, and Hosack v. Rogers, 9 Paige, 408. 84G COMPENSATION OF TRUSTEES. sion, at the rate speciliod in the ytatutes, upon all moneys received by him as such trustee, other than the principal moneys received from investments made by him on account of the trust estate. And he is also to be allowed his half commission on all moneys paid out by him in bonds and mortijaii^es, stocks or other proper securities for the benefit of the trust estate under his care and management, leaving the residue of his half commissions upon tlie fund which has come to his hands, and whicli re- mains invested or unexpended at the time of ren- dering or passing such accounts, for future adjust- ment, when such funds shall have been expended, or wdien the trustee makes a final settlement of his account upon the termination of the trust. And upon every other periodical statement of the account during the continuance of the trust, half commis- sions should be computed in the same manner, upon all sums received as interest or income of the estate, or as further additions to the capital thereof since the rendering or passing his last account ; and half commissions upon all sums expended except as in- vestments.' Double commissions are not to be al- lowed where an executor acts in the double capacity of executor and trustee ; ^ and when there are sev- eral trustees, the commissions are computed upon the aggregate sums received and paid out by all of them collectively, and the commissions will be ap- portioned either equally or in proportion to their ' See preceding note. * Valentine v. Valentine, 3 Barb. Ch., 438; see also Aston's Estate, 4 Whart., 241; Stevenson's Estate, Parsons' Eq. Rep., 19. COMPENSATION OF TRUSTEES. 847 respective services;^ and where one hcas done nothing, he will be entitled to no part of the com- mission.'^ The manner in which compensation is given in Pennsylvania, is not fixed by statute, but is left more to the judgment and discretion of the court. In some cases the compensation has been by awarding a gross sum rather than a rate per cent,^ but the general practice there is by commissions, and that is usually, although not uniformly, five per cent."* There are exceptions to the rule, as it would be un- equal when applied to different estates. In some small ones, where the sums are collected in driblets, five per cent would be insufficient.^ In other cases, where the total amount is large, and sums are col- lected and paid away in large masses, five per cent would be too much. It is therefore left to the dis- cretion of the courts to ascertain those cases where the general rule should be departed from." It is also a matter of discretion whether to allow com- missions on re-investments or not. The amount of compensation in these cases, said Woodward, J., " must depend on the discretion, which is nothinf^ * See preceding note. ' White V. Bullock, 20 Barb., 99. ' Ilarlancl's Account, 5 Rawle, 330; Armstrong's Estate, 6 Watts, 237; McFarland's Estate, 4 Barr, 149; Brinton's Estate, 10 Barr, 411. 'Pusey V. Clomsou, 9 S. & R., 209; Pennell's Appeal, 2 Barr, 216; Hemphill's Estate, Par. Eq. R., 31; Bird's Estate, 2 ib., 171. * Marsteller's Appeal, 4 Watts, 268. * Per Tilghman, C. J., in Pusey v. Clemson, 9 S. & R., 209; see Har- land's Accounts, 5 Rawle, 331 ; McFarland's Estate, 4 Barr, 149; Stephen- son's Estate, 4 Whart., 104; Walker's Estate, 9 S. & R., 225; Miller's Estate, 1 Ashm., 335; see also Heckert's Appeal, 12 Harris, 482. 848 COMPENSATION OF TRUSTEES. else than the reason and conscience, of the trihunals having jurisdiction of the trust." * In Massachusetts the compensation to executors is re«;ulated hy statute, and the same rule is a|)])lie(l allow iiii^ commissions and at the same rates as in New York."^ Prior to the introduction by statute, of the New York rule, the courts of Massachusetts compensated executors and others act in t:: in a fidu- ciary capacity, by making what was deemed a *' reasonable allowance;" and for the purpose of determining what was " reasonable," they resorted to the usaj^e among merchants, factors and others, who undertake to manage the interests and concerns of others, and fixed upon five per cent upon the gross amount of the property which had come into the hands of the trustee.^ In the case of Dixon and Wife v. Homer et al.,^ Shaw, C. J., stated the distinction between the duties of an executor an-2; William r. Mosher, G Gill., 454. COMPENSATION OF TRUSTEES. 851 of trustees for the sale of real estate are regulated by special rules of court. On the first $100, seven per cent, is charged ; on the second $100, six per cent. ; on the third $100, five per cent. ; on the fourth $100, four per cent. ; on the fifth and sixth $100, three and one-half per cent. ; on the seventh and eighth, three per cent. ; on the ninth and tenth, two and one-half, &c., and three per cent, on all above $3,000, besides an allowance for expenses not personal. This allowance to be increased or diminished according to certain circumstances, in the judgment and discretion of the Chancellor.^ The commissions of trustees generally are the same as executors.^ Trustees and executors are treated with indulgence by the court, both with respect to commissions and other expenses.^ Thus they are allowed the expense of employing an attor- ney when necessary;* and, also, allowances have been made where the trustee himself was an attorney.^ In the case of Winter v. Diflfenderffer,^ the trus- ' See Gibson's Case, 1 Bland. Cli. Rt-p., 147- ' Ringgold V. Ringgold, 1 Harris & Gill., 27; Nicholas v. Ilodgcs, 1 Pet. S. C. Rep., 565; West v. Smith, 8 How. U. S. Rep., 411. ' Green i'. Putney, 1 Md. Ch. Decis., 267; Mitchel v. Holmes, 1 Md. Ch. Decis., 287; Jones v. Stockett, 2 Bland., 417; Diffenderffer v. Winter, 3 Gill. & John., 347; Compton v. Barnes, 4 Gill.. 57; Chase v. Lockerman, 11 Gill. & John., 185; Dorsey v. Dorsey, 10 Md., 471, and 6 Md.,460; Post V. Mackall, 3 Bland., 529; Bank v. Martin, 3 Md. Ch. Decis., 225. * Green v. Putney, 1 Md. Ch., 267; Dorsey v. Dorsey, 6 Md.,460, and 10 ib.,471. » Post V. Mackall, 3 Bland., 529; Bank v. Martin, 3 Md. Ch., 225. • Winter v. DiffonderfiTer, 2 Bland. Ch., 207; see Thomas i;. The Fred- crick Co. School; 9 Gill. & John., 115. 852 COMPENSATION OF TRUSTEES. tee had been charged with compound interest; nevertheless, the Chancellor gave him ten per cent, because the management of the estate had been troublesome. The Chancellor said, *• The principle upon -which a Court of Chancery awards sim])le or compound interest to a party whose money ha.s been unjustly withheld or misapplied, is that of commutative justice, considering the interest as a full compensation for the injustice done, and as the proper or only remuneration which the court can award in such cases. Therefore, to lessen or alto- gether withhold from a trustee any allowjince to which he may be justly entitled, upon the same ground on which he had been charged with simple or compound interest, would be, in effect, to impose on him a fine or forfeiture upon the principle of vindictive justice; and to punish him for an olVence which the court itself had declared, would be sulh- ciently expiated by the payment of sim2)le or compound interest, "The duties performed by a trustee, may have been so light, or may have been performed in so negligent and unskillful a manner, as, on that ground, to entitle him to small, or no commission at all. But to whatever compensation he may be entitled, they certainly should not be lessened or altogether be withheld on the ground of his having done or omit- ted to do anything for which the payment of simple or compound interest had been awarded as a com- pensation, because every single transaction must be considered by itself. Recollecting, however, that a trustee cannot be allowed anything as compensation COMPENSATION OF TRUSTEES. 853 until he has paid all he oAves to the plaintiffs or cestuis que trust. ^^^ If the executor or trustee acts to the advantage of the estate, in the capacity of an overseer of the same, it is competent for the Orphan's Court to make an allowance for such services. But the court will not require them to act in such a capacity, &c.^ Where there has been a partial administration by an executor, the court may allow such a compensa- tion as is deemed reasonable ; but when there is a full administration he is entitled to at least five per cent.^ In Virginia, as a general rule, fiduciaries of every description are allowed a commission on receipts; which does not exceed five per cent., unless in spe- cial cases.'' In Fitzgerald v. Jones,^ Tucker, J., said, " I very much incline to think that where the man- agement of an estate is thrown upon an executor,, and the care and education of a family of childrea with it, that the executor ought to have a more libor ral allowance than a bare commission of five per cent, upon his receipts and expenditures. In the present case the testator left five children, appa- rently minors, who remained so many years. He charged his whole estate with the payment of his ' See preceding note. ' Lee V. Welsh, 6 Gill. & John., 316; Evans v. Inglehart, 6 Gill. & John., 171. ^ McPhcrson v. Israel, 5 Gill. 8t John., 60; Parker t'.Gwynn,4 Md.,423; Gwynn v. Dorsey, 4 G. & J., 453. * Johns V. Williams, 2 Call., 105; Grandberry v. Grandbcrry, 1 Wash. Rep., 24G. * Fitzgerald v. Jones, 1 Munf., 156. 854 COMPENSATION OF TRUSTEES. daughters' legacies, if it could be effected out of the profits before either of tliciii married or came of a^e. To do this the executor must do many things beyond what the (hity of an executor, in ordinary cases, imposes. His personal trouble and responsi- bility, under such circumstances, may be increased ten fold. He ought to be compensated accordingly, whenever it appears that he has faithfully discharged the extraordinary duty imposed on him by tlie tes- tator.'" And ^vhere estates are large and trouble- some, ten per cent has been allowed in full lor com- missions and other expenses.'^ Sometimes live per cent, in addition to expenses;^ sometimes five per cent, is given in lieu of all expenses.^ These com- missions are paid, and expenses are allowed, under the provisions of the Revised Statutes, which direct the commissioners in settling the account of any fiduciary, to allow the reasonable expenses incur- red by him as such, and also reasonable commissions, except in cases where it is otherwise provided, as in cases of a legacy to an executor for his compen- fiatiou, or some specific sum named to be paid for his services.^ In Delaware it is held that a voluntary trustee is not entitled to any compensation for his time and trouble ; that he is entitled to have his expenses * See preceding note. * McCall I'. Peachy 's Adra'r, 3 Munf., 306. ' Ilipkins V. Bernard, 4 Munf., 93; Farncyhougb's Ex'ors v. Dickcrson, 2 Rob., 589. * Sbepberd v. Starke. 3 Munf., 29. * Jones I". Williams, 2 Call., 105. COMPENSATION OF TRUSTEES. 855 paid, and to be indemnified against loss, but he is to have nothing more/ In North Carolina, commissions and necessary expenses are allowed to executors, etc. The allow- ance of a commission not exceeding five per cent, for the amount of receipts and expenditures, fairly made, is authorized by statute.' But they are not to be allowed on any larger amount of the proceeds than the sum actually applied in the payment of debts. The court cannot allow more than five per cent., although they may allow less.^ Besides these commissions, executors are allowed their actual expenses, in the faithful discharge of their duties, such as attending necessary sales, or sending an agent out of the State," or for the pay- ment of counsel fees, etc.' But when the executor permits the personal estate to go out of his hands, he cannot subject the real estate in the hands of the heir to a charge for his services." It has been exceeding questionable, how far these provisions in favor of executors, etc., w^ould be ex- tended to trustees. Ruffin, J., in the case of Boyd V. Hawkins,^ said, "We are informed that it has ' Egbert V. Brooks, 3 Uarrington, 112; Stale v. Piatt & Rogers 4 Har- rington, 154. " R. S. 1854, ch. 46, sec. 38, p. 288. » Boad V. Turner, 2 Taylor, 125; Peyton v. Smith, 2 Dev. & Batt Eo 349; Walton v. Avery, 2 Dev. & Batt., 405. ' * Whitled V. Webb, 2 Dev. & Batt., 442. " Uester v. Hester, 3 Ired. Eq., 9; 'poindexter v. Gibbons, 1 Jones' Ea Rep., 44, and Morris v. Morris, ib., 326. • Newsom v. Newsom, 3 Ired. Eq., 411. ' Boyd V. Hawkins, 2 Dev. Eq., 334; see also Slierrill v. Shuford 6 Ired Eq 228; Raiford v. Raiford. 6 Ired. Eq., 495; Ingram c. Kirkpatiick. 8 Ired. Eq., 62. 856 COMPENSATION OF TUUSTEES. been usual in some parts of this State for trustees to charge for services, and that the profession have no decided opinion aj^ainst it. The amount will of course be according to the circumstances, and not beyond that which would, under the statutes, be made to executors; and if fixed by the parties, it will be subject to the revision of the court, and be reduced to what is fair, or altogether denied, if the stipulation for it has been coerced by the creditor as the price of indulgence, or as a cover to illegal interest, or the conduct of the trustee has been mala fide and injurious to the cestui que trusty Whether it shall be given as a commission or not, is hardly worth disputing about; that may be a convenient mode for computing in most cases, but the true object is a just allowance for time, labor, ser- vice and expenses, under all the circumstances that may be shown l)efore a master.* In South Carolina, under the statute" allowing to executors and administrators a sum not exceeding fifty shillings for every hundred pounds they should pay away in credits, debts, legacies, or otherwise, during the continuance of their administration, it is held that such allowance covers all those ex- penses which are sometimes termed personal.^ Where an executor pays money to himself as guardian, he is allowed two and a half per cent, as executor, for transferring it, and the same commis- ' See preceding note. » Act of 13th March, 1789, (5 Stat., 112). * Logan V. Logan, 1 McCord's Ch., 5. COMPENSATION OF TRUSTEES. 857 sion as guardian for receiving it/ So a commission also was allowed on bonds taken for the purchase money of real estate, &c., and where the executor purchased the estate himself," but not on the pro- ceeds of lands sold under a decree of foreclosure, on the ground that the money was neither received or paid away by the executors.^ So where an estate was paid over to a commissioner under a decree in equity, full commissions were refused.'' So where a testator bequeathed to his executors ten per cent on the whole amount of moneys to be collected from the sale of the estate, and of outstanding debts due, or which might thereafter become due ; it was held that the commission should be allowed on the sums actually collected by them, but not on those sums which they had foiled to collect.^ These principles have been applied to trustees and receivers.*^ But not to those cases where trus- tees have expressly agreed to act without commis- sion.' Under the act of 1789, executors were re- quired to file their annual accounts, and if they neglected to do so, they forfeited their commissions ; and a substantial compliance with this provision is always insisted upon.^ ^ A similar statute exists in Georgia, which sub- ' £x;)ar/e Witherspoon, 3 Rich Eq., 13; Deas v. Span, Harper's Eq. Rep., 270; Gist v. Gist, 2 McCord's Cli. Uop., 474. ' Vance v. Gary, Rece Eq., 2; see also Griffin v. Bonham, 9 Rich Eq., 71. » Ball V. Brown, Bail. Eq.» 374. * Thompson v. Palmer, 3 Rich Eq.. 141. ' Edmonds v. Crenshaw, Harp., 233. • Bona V. Davant, Riley Ch. Ca., 44. ' McCaw V. Blunt, 2 McCord's Eq.^ 90. ' Benson v. Bruce, 4 Desau., 464. 858 COMrENSATION OF TRUSTEES. stantially regulates the commissions of fuluciarieB in that State/ and likewise punishes an executor with the loss of his commission, if he neglects to render his annual accounts to the register of pro- bate.*^ It is held that trustees have an inherent right to be reimbursed all expenses properly in- curred in the execution of their trust, and are en- titled to compensation for their time and service in its management."' In Alabama, compensation is allowed to all acting in a fiduciary capacity, and although the statute has never fixed a percentage, yet in ordinary cases, five per cent seems to be the usual allowance/ But this is by no means the fixed per cent in all cases ; each case is governed by its peculiar circumstances. The compensation is controlled to a great extent by the amount of the estate, and ])y the labor and re- sponsibility incurred in its administration."' It is held that the compensation l>eing rather a matter of grace than of right, it will depend en- tirely upon the bona fides of the trustee." Thus, in case of wilful default,^ or where they refuse to ac- count.^ In Mississippi, the statute allows to executors, • See Prince Dig.. 224; 2 Cobb Dig., 304. ' Sec Fall r. Simmons, 6 Geo.. 274; Kenan r. Paul, 8 Georgia R., 417; see the act 22«1 Feb., 1850, 2 Cobb Dig., 340, giving the court discretionary power under certain circumstances. » Lowe V. Morris, 13 Geo., 169; see also Burney r. Spear, 17 Geo., 226 • Bendell v. Bendell, 24 Alab., 306. » Gould V. Hays, 25 Alab., 432. • O'Ncil r. Donnell, 9 Alab., 738. ' Powell V. Powell, 10 Alab., 914; Gould v. Hays, 25 Alab., 432. • Hall V. Wilson's Heirs, 14 Alab., 295. COMPENSATION OF TRUSTEES. 859 such compensation as shall be reasonable and just, not less than five, nor exceeding te7i per cent of the amount of the appraised value on the whole estate/ including the real estate where its proceeds pass through their hands. But the allowance is only made on the final settlement.' And if the executor resigns his administration, it is in the discretion of the probate court to make a proper allowance."^ This allowance at the discretion of the court from five to ten per cent, is intended to cover all their compen- sation and other expenses.'* In Tennessee, executors, administrators and guar- dians have a reasonable compensation for their ser- vices as such,^ and are reimbursed all their necessary expenses. So also in Kentucky, latterly, the courts have allowed trustees a compensation.® In Illinois, executors, &c., are allowed as compensation for their trouble, six per cent on the whole amount of personal estate, and not exceeding three per cent on money arising from the sale or letting of land, &c. ;' and thus in respect to other of the States. The principle of allowing compensation to fiducia- ries for their time and trouble in the management of their trusts, is generally recognized as just, and 'Hutch. & How., Dig., 414, sec. 9G; Merrill a. Moor, 7 How., 292; Cherry v. Jarratt, 3 Cush., 221. " Shurtleffr. Witherspoon, 1 Sm. & M., 622. ' Cherry v. Jarratt, 3 Cush., 221. * See Satterwhite v. Littlcfield, 13 Sm. &, M., 30G; Shirley v. Shattuck, 6 Cush., 26. * Act 27th Jan., 1838. ' Lane v. Coleman, 8 B. Monr., r)71; Greening v. Fox, 12 B. Monr., 190. ' Act 3d March, 1845, sec 36, 2 R. S., 1219. 8G0 COMPENSATION OF TRUSTEES. one that will soon become universal. It is a uni- versal practice to reimburse trustees and others actinp; in a fiduciary character, all their necessary expenses incurred in a faithful administration of the trust estate. TERMINATION OF THE OFFICE OF TRUSTEE. 861 CHAPTER IX. OF THE TERMINATION OF THE OFFICE OF TRUSTEE. After the office of trustee has been created, and its duties and liabilities have attached to the person of the trustee, he cannot, by his own act, put an end thereto, but must continue liable until legally discharged. There are several methods by which this discharge may be effected. 1. By the full expiration of the term of his office, or by a full performance of all the trusts and a con- veyance and transfer of all the trust property to the cestuis que trust. In this case if the cestuis que trust are all sui juris, such settlement with, and transfer to them, will be a full discharge of the trustee from the duties and liabilities of his office.^ So, also, an authorized purchase by the trustee of the cestuis que trust is held to be a merger of the equitable estate.^ Or where the legal and equitable estates become vested in the same person the equi- table estate will become merged, because one cannot > Holford V. Phipps, 3 Bcav., 434; Goodson r. Ellison, 3 Russ., 593; Tavorner v. Robinson, 2 Rob. Va., 280. ' Johnson v. Johnson, 5 Alab., 90; Wade v. Paget, IBro. C C, 364. 8G2 TERMINATION OF TITE OFFICE OF TUl'STFE. 1)0 trustee for himself/ But whether an equitable estate sliall thus heconie iuer<;ed, is a question of intention, and will iK^t ))e allowed in equity airainst the intent i(Ui of the parties.' Aside from any conveyance of tlie trustee to the cestui que tru^t, or to any other person under his direction, a reconveyance and surrender in certain cases, after a suflicient lapse of time, will be pre- sumed in aid of the title, especially in cases where the mere dry legal estate has remained unnoticed in the trustee.^ The three requisites necessary to raise the presumption of reconveyance by a trustee are, 1. It must have been his duty to convey; 2. There nmst be suflicient reason to presume he did convey; and, 3. The object of the presumption must be to support a just title.* 2. The oflice of trustee may be determined by * Cooper r. Cooper, 1 Ualst. Ch., 9; Mason r. Mason, 2 Sandf. Ch., 433; James r. Morey, 2 Cowen, 246; James r. Johnson, 6 John)*. Ch. R., 417; Iloaly r. Alston, 25 Miss., 190; .see also Wade r. Paget, 1 Bro. C. C, 3f,4; Lewis r. Starke, 10 Sm. & M.. 128; Brown r. Bartee, 10 Sin. & M., 208. ' Gardner v. Astor, 3 Johns. Ch. R.. 53; Starr r. Ellis, 6 Johns. Cli. R., 393; Den r. Van Ness, 5 Ilalst., (N. J.,) 1(»2: see also hotc e(iuity will protect the rights of the ce$tui que trust. Nurse r. Yerworth, 3 S\v.. 608; Thom V. Newman, 3 S\v., 603; 1 Cruise Dig., tit. 8, ch. 2, sec. 47, 50; also 6 Cruise Dig., tit. 39, sec. 72, 113. ' Hillary i-. Waller, 12 Ves., 239; Noel r.Bewley,8 Sim., 103; Goodtitlo V. Jones, 7 Term. Rep., 47; Emery v. Grocock, 6 Madd., .54; Jackson r. Price, 2 Johns., 226; Sinclair r. Jackson, 8 Cowen, 543; Moore r. Jackson, 4 AVend., 59; Dutch Church r. Mott, 7 Paige, 77; Aikin r. Smith, 1 Sneed, 304; Matthews r. Ward, 10 Gill. &. John., 443; see Moore r. Jackson, 13 Johns. Rep., 513. * Hill on Trustees, 2-53. As to duty of the trustee, see Beach v. Beachi 14 Vt., 28; see also Langley v. Sneyd, 1 S. &, St., 45; Goodson r. Ellison, 3 Russ., 583; Noel r. Bewley, 3 Sim., 103; Hillary v. Waller, 12 Ves., 239, 2.52; Wilson v. Allen, 1 J. & ^V., Oil, 620; see also Aikin r. Smith, 1 Sneed, 304. TERMIJ4ATI0N OF THE OFFICE OF TRUSTEE. 863 the resignation of the trustee and the acceptance of it by the court; or by the discharge of the trustee, and the appointment of another in his place, under a power contained in the trust instrument; or by the authority of the court, either acting according to the rules of equity, or under the special authority of statutory enactments. But this termination of the office, does not necessarily discharge the trustee from liability for past conduct in the management of the trust/ 3. So, also, a trustee may be discharged from his office as such, with the concurrence of all the cestuis que trmt, whether there be a new trustee appointed in his place or not. It is hardly necessary to remark that the cestuis que trust must all be competent to bind themselves by their contract; and, conse- quently, this method of discharge cannot be resorted to when any of the cestuis que trust are not in esse, or not sui juris. "^ 4. And the death of one of several co-trustees will also terminate the office of trustee in respect to such trustee, his heirs and personal representa- tives; because, being joint tenants, the trust estate, on the death of a co-trustee, vests in the survivors or survivor. But the discharge of the trustee from his office, upon the determination of the trusts, or the appoint- ment of another to succeed him, is not, of itself, an » Hill on Trustees, 580. ' Overton v. Bannister, 3 Hare, 503: see also as to settlements immedi- ately after infants have come of age, Walker v. Symonds. 2 Sw., 69; also Weddeburn v. Weddeburn, 4 M. & Cr., 50. 864 TERMINATION OF THE OFFICE OF TRUSTEE. extinfi;uishment of his liability for past misconduct as trustee, or of the right of the cestui que trust, to examine into the same. Nor can the trustee, on transferring the trust property, insist upon any such discharge as the condition upon which he will make such conveyance.^ Where the trustee has reason to doubt the safety of paying over or conveying to the cestuis que trust, as, where their title is not per- fectly clear, and there is a possibility of future ques- tions arising as to the propriety of such conveyance or transfer, he may insist upon having the court settle the doubtful questions, unless the cestuis que trust will give him the proper indemnity." If the trustees wish to obtain a release which will be conclusive and binding upon the cestuis que trust, they should make a full statement of their accounts and other transactions, with all the explanations and information necessary to a full understanding of their rights.^ For should there be any concealment, or withholding of information or other fraudulent conduct on the part of the trustee, the release would be vitiaterlorni, the beneficiary entitled to title deeds, etc. . ^^^ ACTIONS AT LAW. Trustees in, are subject to the same rules as other parties 81 J ADMINISTRATOR. Cum testamento annexo, succeed to the ordinary ailrainistration, duties, etc "•'>9 But rule changed in many of the States "'^0 iS'ee ExKCUTOBs a«d Administratohs. AGREEMENTS. Agreements to negotiate advantageous marriages against public policy, etc '■"^ Secret agreements made with parents or guardians, etc., upon treaty of marriage, for a consideration, etc., discountenanced.. 122 Agreements for procuring public offices void as against public pol icy 125 Also for restraint of trade generally 125, 126 But not in particular respects ^'^^ Also to prevent competition at public sales 126 Also to pay extra for discharging official duty 127 Also those based upon corrupt considerations of moral turpitude, 128 As equitable mortgages 490 ALABAMA. Has a court of chancery '^^^ Uses and trusts of lands cannot be created, etc 464 But legal estate vests in beneficiary 464 But see exceptions 464 And legal title vests in trustee 464 Trusts for accumulation when, etc 465 Trusts of land must be created by some instrument in writing... 465 "When instrument recorded , the effect 465 Dispositions under appointment among children may extend to grandchildren, when 466 Power to be exercised by survivor, etc 466 How trustees appointed, removed or resign 466, 467 For what causes removed 467 Separate estate of married women in 658 ALIENS. Aliens as trustees 340 INDEX. 869 PAGE. XLIE'SS— Continued. May become trustees to the extent of their capacity to hold real estate and other property 340-343 Cannot acquire title to real estate by mere operation of law 340 Cannot take by dower or curtesy 341 Natural born subject cannot take by representation from an alien, 341 In most of the States their capacity determined bj- statute, 341, 342, 343 Title forfeited on office found 343 At death, lands of, escheat without inquest of office 343 Use cannot be executed in the alien 344 May be trustees of movable property 344 May hold as executor 345 Natural ization has a retro-active effect 345 ANTICIPATION. Right of the wife, etc 651, 652 Restrictions of, cannot be dispensed with, etc 685 686 Restraint upon, prevents wife from charging her estate with pay- ment of her debts, etc 686 APPOINTMENTS. Fraud in regard to powers of appointment, raises a constructive trust. 195 As making illusory appointments jgr Under a power, when not exercised as to selecting from a class each individual takes equally 231 Illusory, will not be sustained, etc 722 etc Power of appointment of trustees, etc. See Power. ARKANSAS. General jurisdiction of their courts 430 Have a separate court of chancery 437 Lands conveyed in trust for certain religious purposes 437 State not to be decreed a trustee by the court 437 Trusts generally administered According to usages of the common la^ 438 ASSETS. If the purchaser knows the executor is wasting the estate, he is chargeable with the fraud I93 The general doctrine as to the misapplication of the assets, &c... . 198 Order of marshaling assets 301 Doubt as to intention of testator, this order is to be pursued 305 When real estate charged, &c., with payment of debts 305 870 INDEX. W PAGE. ASSETS— Continued. Debts clue the testator assets in hands of executors, 8tc .'>84 When charReable with them 584 "Wlien damages recovered become assets 584 "What deemed reducing thejn to possession 585 ASSIGNMENT FOR THE BENEFIT OF CREDITORS. For the Ix-neflt of creditors 278 to 308 Wiaii made in good faitli will lie sustained 1»78 The Englisli doctrine on tlie subject 278, 279 In the United States such assignments made in good faith, and without conditions deopted injurious to creditors, vest the title in the assignee as trustee 279 Such assignments are adjudged to be made upon a valuable con- sideration 279 The assent of creditors is presumed 279 That is, their assent is the presumption of law 280 Creditors must manifest their assent when the terms of the deed require it 280 Property subject to execution or attachment until assent is given, "When assent is recpiired the legal i)n'sumption is destroyed, 280, 281 Wlien assent must Ik- actually given 281 "When the assent of one or more will be sufficient 281 , 282 Assignment to trustees, when the title vests 282 Assignments to preferred creditors allowed 282 If no statutes conflicting 283 Provisions by New York stat utes 283 As to deeds of gift , etc. , in trust for one's self 283 As to appointments of assignees of debtors, etc 283 As to conveyances to hinder, delay , etc 283 If assignment provide for re-conveyance, etc., void 284 K certain conditions favorable to debtor and against creditors, it is void , etc 284 When stipulations of release as a condition of obtaining a prefer- ence, void, etc 284 If residuum to be paid back bofora all creditors are paid, etc 281 Stipulations that debtor is to retain property, vitiate the assign- ment 284 Or where he is to be employed as agent, with compensation 285 If conditions of assignment tend to hinder and delay the creditor, etc., they vitiate 285 If it authorize a sale on credit, etc 286 Or to sell for other things than money 286 If it contains real property, must harmonize with statute on sale of lands for the benefit of creditors 286 INDEX. 871 PAGE. ASSIGNMENT FOR THE BENEFIT OF CREDITORS— Continued. Requirements coercive of creditors, vitiate 288 Cases of indirect coercion, etc 288 Creditor may be postponed, but must be entitled at last, etc 289 Any part of the property to be re-assigned before all debts paid, vitiates '. 290 But valid when on condition that creditors refuse to become parties, etc 290,291 Validity generally depends on bona fide intention and legality of purpose 291 If assent of creditors required, the assent of one or more suffi- cient 291 "When the assent of attorney sufficient 292 When and how assent may be given 292, 293; If instrument fix a time, must be accepted within the term fixed. . 293;; But absent creditors, having no notice, have a reasonable time 293 . If assignment beneficial to them, their assent presumed 293.; When assignment takes efil'Ct from date , 293 . "When the assent of a part of the trustees sufficient 294 Special provisions in the several States 294, 295. Fraudulent assignments binding between assignor, assignee and. accepting creditors 296. Or a creditor who brings a trustee process, etc 29ft When the assignment takes effect 29(i, 297, 298 Where the trustee refuses to accept, title still passes and court will enforce, etc 298, 299 When trusts may arise for the assignor 299 The principle underlying all these cases ,,,..... 300 At death, law vests the personal property in ixjrsonal representa- tives for payment of debts 300 At common law real estate not liable for simple contract debts. . 300 But by statute made liable on failure of personal estate, etc 301 ASSOCIATIONS. Voluntary and unincorporated, may be trustees for certain pur- poses , 337,338 ATTORNEY AND CLIENT Constructive trusts in cases of , , 136-140 Basis of these trusts, etc , 136, 481 Courts watch these transactions with jealousy 136 Rule as declared by Lord Brougham 137 In transactions between them, the burden of establishing perfect fairness, etc., is on the attorney 137, 138, 482 Doctrine extends to other transactions 138, 139 872 INDEX. PAQI. ATTORNEY AND CI AE'ST— Continued. And does not terminate with the relation of connsel and client, 139, 482 Rule applifs to managing clerk in the solicitor's office, etc 140 Also to one who acts as confidential adviser before a magistrate. . 140 AUCTION. The policy of the law encourages competition at public auctions. . 126 Agreements not to bid at these public sales are against such policy and void, etc 1-7 BANKRUPTS. Bankrupt may be a trustee 3^6 His as.'^ignment does not vest trust property in his assignee 340 The legal title to trust property remains 346 Have incurred no legal disability to act as trustees 346 BANKRUPTCY OF TRUSTEE. May render him unfit, but not incompetent 346 Trust not aflectcd by 806 BANK STOCK. Not deemed a permanent fund in which to invest, etc 630 Otherwise in Massachusetts ^05 Trustees entitled to possession of, etc 809 BOND. Marriage brokage contracts, etc.. void 122 A bond or other premium fur i)rocuring a public office, etc, will not be enforced ^-'^ Are contracts of moral turpitude, etc I'-O Bond of client to attorney may be set aside as constructively fraud- , , 110 uleut Trustee entitled to possession of, etc 809 But not where no active duties to perform, etc 810 CAVEAT EMPTOR. The application of this rule 1"' ^^^ CESTUI QUE TRUST. Who may be. As objects of the trust, must be ccrfain 3 In respect to real estate, etc., all partners are cestutt que trusts . . 98 In case of insolvency of partnership, creditors of, are the ultimate cestuis que tru^t Uncertainty of, in cases of charity, not fatal to the trust 239 INDEX. 873 PAGE. CESTUI QUE TRJJST:— Continued. Who are «wt juris acquiescing in investments by the trustee, not to question afterwards , etc G16 "When his interest primarily liable to other cestuis que trust 616 Cannot convey legal estate without concurrence of trustee, etc. . . . 816 Reasons for the rule, etc 816 CHANCERY. Court of, will appoint a trustee, on proper application, in all cases when the trust is clearly declared, and the subjects and objects of the trust well defined, etc 376 Its maxim, a trust shall not fail for want of a trustee. . . 376, 377, 386 Has inherent jurisdiction in matters of trust or confidence 377 And will enforce the execution thereof 377 And will extend aid and protection to the trustee 377 Has jurisdiction to appoint trustees, whether the instrument confer the power or not 378, 379 In making appointments, etc., the court is governed by what seems needful 384 "Will endeavor to do what needs to be done to carry out the legal intention of the author of the trust 885 If necessary will remove a trustee and appoint another in his place, 387 Its power over trusts and trustees, etc., equal to any emergency, etc 388, 389 Authority of, in New York 391-403 Authority of, in Pennsylvania 403 See the provisions of the several States on this subject 391-473 Has in/icrenf jurisdiction over the care of the persons and property of infants 641 Will order their maintenance when necessary, etc 641 Has no inherent power to direct the sale of the infant's real estate 641,642 How it deals with infant's estate 642 Raised a trust to save the estate of the cestui que use 775 CHARGE. Primarily on real estate. When a settler, upon a marriage settlement, created a trust term in his real estate for raising of portions 106 Rule as between the heir and personal representatives, etc 106 So where estate descends, etc., subject to a mortgage 106 But if lands not specified by settler, otherwise 106 CHARITABLE USES. What the term imports 232 Whether trusts for, originated in statute 43 Elizabeth, etc 232 874 INDEX. PAGE. ClIAUITABLE I'SES— Continued. The iKjtter opinion on that nubject 232 Statute 43 Elizaljcth 232, 233 Chancery ha.s original jurisdiction in theau cases 234 lk"4uest8 within tiie authority of chancery must be within the letter or spirit of the statute 234, 238 TThat constitutes a charitable purpose 236 FuikIs must be supplied from the gift of the crown, gift of the legislature, or private gift, for any legal public or general pur- pose 286 Must look to the source, etc 236, 237 Associations of individuals for general, public or charitable pur- pose are within the control of the court 237 But they must be public and general 237 General rule for determining, by the language of the testator, or description of the object 237, 246 Difference Ix^tween trusts for private purposes and trusts for charity, as to certainty of object 239 If the object be '* charity,'^ trust not to fail 239 "WTien the disposition is in the king by his sign manual 239 Such class fail in United States unless legislature interfere 239 Questions to be consiY.S— Continued. But the court will require the proper application of the revenues, etc 278 Speciiil provision for in Massachusetts 413 CHOSES IN ACTION. The subject of a trust 1 Equity establishes an implied trust between assignee and ultimate dtbtor 100 "Wlicn trust fund consists in, must be reduced to possession with- out delay ^80 Are assets in hands of executor 584 "What deemed reducing them to possession 686 Husband has not a property in, but only a naked power over a wife's choses in action 680 Wife's equity must prevail where equities are equal 681 If husband survive the wife he is entitled to, as her administrator, etc 682 An assignment of by the husband good against all but the wife surviving 682 COMMON SAILORS. As a class, not deemed competent to take care of their own in- terests 104 Hence their contracts respecting their wages, prize money, etc., watched with jealousy 164 Arc relieved when any undue advantage has been taken 1G5 COMPENSATION. Of trustees 83.5-860 The English rule, etc 886, 836, 837, 838 May employ agents, etc 840 Creator of trust may direct compensation 840 And court will fix amount if necessary 841 Rules in United States 842 As to the several States 843-860 Compensation universally allowed in the United States 842-850 Except, perhaps, in Delaware 854-856 Allowed actual expenses in all the States 860 COMPOUND INTEREST. Trustees, when chargeable with 693, 594, 595, 596 Guardian , chargeable with 59o In South Carolina, courts averse to the rule 596 INDEX. 8*''*^ PAGE. CONFUSION. If trust funds are mingled, trustee must establish how much went to the purchase, or cestui que trust will take the whole 34 CONFIDENTIAL KELATIONS. Persons standing in, will be converted to trustees when necessary to protect the interests of the confiding 481 , 482, 483 Money used to purchase property, etc., where confidential relation does not exist — no trust raised CONNECTICUT. Superior Court has jurisdiction in equity, and proceedings accord- .. 432 mg to rules m equity ^^ County court has concurrent jurisdiction 43- Assignments to trustees for benefit of creditors *^- Must be for benefit of all And lodged for record, etc K assignee refuses or neglects to accept the trust, probate judge . ^ 433 appomts If testator, in his will, does not provide for the contingency of death, etc, of trustee, probate judge appoints 433 And, if the will does not provide otherwise, trustee must give bond •••■ ' When and how thev mav be removed and appomted t-^^ Proceedings in trusts mostly according to rules at common law. . 433 Separate estate of married women CONSIDERATION. Paid by one, deed taken in name of another creates a resulting , , 28, 475, 476 trust ' If part of purchase money be paid, trust pro tanto 29, 30 This doctrine applies to purchasers only 30, 4/6 Does not apply to gifts ^^' a3I Consideration money must belong to cestui que trust 31, 476 Or advanced as a gift or loan to him Trust must arise at the time of conveyance 31 Applies to copy holds Such trust a mere presumption, and may be rebutted 31 Exceptions by New York Rev. Stat., etc 31, 479 Want of a good or meritorious consideration to a conveyance is deemed fraudulent, as against creditors and bona fides 37 A valuable consideration is requisite to put a court of equity in motion ■ ^^ A mere nominal consideration not sufficient 38 How a resulting trust may be rebutted 479 878 INDEX. PAOK. CONSIDERATION— C'onM«we(i. Of settleraeut, applies only to prescut fortune of wife 077 CONSTRUCTIVE FRAUD. Trusts in cases of. 112 Definition of 120 How the law seeks to prevent tlioin lliO As against tlie policy of the law, etc IJO Marriagf hrokage contracts IJO, lUl All secret contracts with parents, guardians, etc 121, 122 Any unilerhandcd management with any of the parties is discoun- tenanced 122, 123 If a third party, for the purpose of intluencing the marriage, make false representations, he shall answer, etc 123 A settlement secretly made, in contemplation of marriage, of her own property, fraudulent, etc 121 Conveyance or devise to trustees upon a secret understanding that property ia to be applied to illegal purposes, etc 124, 125 A bond for procuring a public office, etc 1-5 Or influencing public officers, etc., absolutely void 125 Agreements in restraint of trade 125, 12G To prevent competition at public sales 126 Agreements founded on violations of public trusts 127, 128 Agreements founded on corrupt considerations of moral turpi- tude 128. 129 To determine when constructivo trusts arise in such cases.. . 129, 130 Courts of equity inclined to leave parties in such cases without aid 130 Ul)on what principle they interfere 131 Arising out of the jieculiar and confidential relation of the par- ties 131-1.04 The facts in such ca.ses become significant from the relation of the parties 131 Basis of rule upon which relief is granted 131 Between parent and child 132-134 Applies to those standing in loco parentis 133 Guardian and ward 134-130 Attorney and client 136-140 General policy of courts of justice 140 Principal and steward 140-142 Eelation same as principal and agent 142 Principal and agent 142-145 Basis upon which an agent is presumed to have been employed.. . 142 Trustee and cestui que trust 145-149 Executors and administrators 149-152 INDEX. ^'^ PAGE. CONSTRUCTIVE FRAUD— Continued. General cases ; 152-164 Constructive frauds deriving their character mainly from uncon- scientiously compromitting or injuriously affecting the private rights, interests or duties of the parties themselves, or upon third parties, etc 154-169 Mental weakness 154-159 Drunkenness 159-162 Persons under duress Common sailors Toung heirs, reversioners, remainder men, etc 16^169 Conditions upon which equity grants relief in such cases 169 CONSTRUCTIVE NOTICE. Constructive notice of the trust charges the purchaser, etc 202 What is good constructive notice -"-" If sufficient to put purchaser on emiuiry that would lead to a dis- 20'> covcTV of the trust •^""' Adverse possession sufficient ■" Registration of deeds, mortgage, etc, constructive notice to the 904 world Lis pendens, constructive notice -"• Basis of the rule, just public policy 207 When commences *""' To what extends, etc 207 Decree in court, notice to parties and privies only 208 CONSTRUCTIVE TRUSTS. Created by construction of law H- In cases of constructive frauds 112-109 Summary method in equity to correct a fraud, is to convert the wrongdoer into a trustee H^ Reason for conflict of decisions on frauds, etc 113, 114 Lord Ilardwick's classification of frauds 114 Principles governing in each class the same 115 See constructive frauds, etc. Constructive frauds, giving rise to constructive trusts, arising out of the peculiar and confidential relation of the parties 131 Basis of relief in such cases •••• I^Ij 1^^ In the relation of parent and child 132 Equity watches over the interest of children as against parental overreaching 1"^- Trusts arising out of conveyances by children for benefit of parents 132,133 Presumption in favor of parental honesty 133 v 880 INDEX. PAOE. CONSTRUCTIVE TRUSTS— Con/inued. Same principles apply to those staruliiig in loco parentis 133 As between guardian and ward 134-136 Transactions in this relation watched with much jealousy by courts, 134 Courts discourage transactions involving selHsh interests, in these relations, on principles of public utility 134, 135, 13G As Ix'tween attorney anil client 13&-140 Basis of such constructive trusts 140 In cases lM;twccn principal and steward 140-142 Basis of the rule in such cases Ill But steward may be a lessee under his principal Ill If transaction is based upon contract steward must shew that he pave a full consideration, etc 141 Differs nothing from principal and ag«.'nt 142 As between principal and agent 142, 145 Basis of the rule in such cases 142, 143 When an agent purchases his principal's property there is a con- flict of interest and duty 142, 143 The policy of the law is against this 143, 144 As l)etween trustee and cestui que trust 145 On what condition a trustee may purchase 145 Rule in such cases and the reasons for it 14'>, 14»'», 147 Constructive trust barred by long acquiescence 152 May arise because of friendly relations and habits of reliance for ad vice , etc 1 53 As patient to his medical attendant 158 Gift to a confldential friend, etc 153 Rule as laid down by Story 154 Constructive trusts which arise because of the mental weakness of one of the parties 154-159 Excessive drunkenness 15(^-102 Arising in cases of persons under duress ltV2-164 Principle upon which a trust is raised 162 May arise in respect to contracts with common sailors 164 And with young heirs, reversioners and remainder men 165 "WTiere the acquisition of property is attended by actual fraud, 169, 170 Equity punishes the wrongdoer by converting him into a trustee. . 170 In cases of contracts with idiots, etc 181 Equity interferes on the ground of fraud 181 In cases of infants, etc 182 On the same principle as in cases of idiots, etc 182 In case of surprise 185 Rule applicable in such cases 186 "WTiere the act is in fraud of the rights of third parties 187 INDEX. 8^1 PAGE. CONSTRUCTIVE TRUSTS— Continued. In the procurement or suppression of deeds and wills 187-195 In case of fraud in regard to powers of appointment 195 In case of conveyances to defeat creditors 196 In case of devises or conveyances to trustees for Illegal purposes, 196 In cases of purchases from trustees, with notice of the trust 197 CONTINGENT GIFTS. See Contingent Trust. CONTINGENT TRUST. Distinction between, and contingent gift in trust 788 CONTRACT. If the contract be personal, although a mortgage be given, it will be in aid of the personalty ^"^ Look to origin of debt to fix the rule between distributees 107 Marriage brokagc contracts against public policy and will not be enforced 120, 121, etc. Secret contracts with parents, etc., upon treaty of marriage, dis- countenanced 1^1' ^•"■" Contracts with idiot and insane persons 1^1 Such contracts set aside on the ground of fraud 181 Contracts with infants void, when, and voidable when, rule in such cases 1^"^ CONVERSION. See Equitable Convpesion. Executor or trustee neglecting to convert personalty when there are positive directions, chargeable, etc 630 Liable to remaindermen when 630 Otherwise where the bequest is specific 630, 631 Court inclined to lean against the doctrine of 631 When executor must convert to protect the remainderman .. .632. 633 When such intention will be presumed 633, 634 CONVEYANCING. Statutes of in the several States 781 And their efiect upon uses, etc 781, 782 CORPORATIONS. Corporations as trustees 331, 336 The constitution of a corporation 331 Sole corporations not favored in the United States 331 Aggregate corporations have succession and perpetuity 331 56 882 INDEX. PAOK. CORPORATIONS— Connnu«d. Object of aggregate corporations, that many may act an one iu'li- vidual ^:5".i Artifuial j)ersons created for particular purposes and contlned to tlie scope of their purpose 332 May become trustees within such limits 38"J Cannot hold as trustee of real estate, unless it can hold real estate by its constitution 333 Cannot be seised of lands in trust for purposes foreign to its insti- tut ion "'^'^ Justice Story's opinion 334 Property granted to, partly for its own and partly for others use, may execute the trust 335 Towns, counties, etc., quasi corporations 335 Certain offices, corporations 335, 336 COSTS. Liability of trustees for C97-711 A question of discretion C07, 698 As between themselves and third parties 698 Rule as to the several States 699-703 "WTiere necessary parties, etc, without default, entitled to costs, 70li As k'tween themselves and cestui que trust, entitled to as of TO" course • » ' '^^ Unless in fault, etc 702, 703 "When he .seeks to advance his own interests, etc., he is chargeable, 708 "When chargeable otherwise 704 When he acts from obstinlicy, etc 705 Taxed as between solicitor and client 713 "When so charged, etc 713, 714 When acting in good faith in refusing to convey, not to be charged with 817 CRASSA KEGLIGENTIA. On the part of the trustee, court will impose the highest rate of interest , etc 593 Chargeable with compound interest, etc 594 CREDITOR. In equity a creditor of an estate may recover his debt of the lega- tees and distributees who have been paid before his debts were, 93, 94 Covenantee of a settler, creditor by specialty 186 As between creditor and party taking estate, subject to charge for debts, etc, 106 Wife, a specialty creditor under a bond given before marriage, etc 108 INDEX. 883 PAGE. CRY-DITOR— Continued. Creditors of corporations in respect to corporate property, right of priority ^^'^ Same as to unincorporated companies HO Same as to partnerships, etc HI Joint creditors, in equity, have the rights of the partners, as the ultimate cestui que trusts, etc HI Trusts for the benefit of 27&-308 CUM TE.STAMENTO ANNEXO. Administrator. See Administrator. Succeeds only to the ordinary powers of, etc 759 But this rule altered in many States 760 CURTESY. Husband not tenant by, in trust estate of wife, etc 80G CT PRES. When the objects of a charity are impossible the court will order a 243 new scheme cy pres But the court acts upon the principle of giving cflFect to the general intention of the testator "^ If the testator had a particular object in view, and that fail, the charity must fail If the objects of the trust or the purposes to which the testator intended his charity to apply are illegal, there will be a cy pres application under the sign manual of the king • • • 24/ But if the gift be special, and not for general charity, the applica- tion will not be made Otherwise if the gift create a general charity • • 247 Basis of the doctrine of cy pres -01,-5- -,,,,. 252,253,-254,255,256 Illustrations _j-, ^^ , , , Remarks of Judge Story on cy pres doctrine • • 257 "When the heir will be forever excluded by a cy pres appli- 257, 258 cation ' , Cannot be made by trustees on their own authority 258 The doctrine of cy pres held not to be applicable to the genius of 258 our institutions Question considered • 259, 260, 261, 262. 268, 264 Doctrine repudiated in New York. DEBTOR. Joint debtors, in their relations as such, are deemed partners 111 Each held as principal for the payment of his portion 112 On the death of a joint debtor, at law, the creditor proceeds against survivors, etc 112 884 INDEX. PAOI. DECLARATION OF A USE AND TRUSTS. When diclared by parol of land 4)5 Under Htatute of frauds^must Iw manifested and proved by some writing sigticd by party entitled to declare the trust 12 What writing deemed sutlkient, etc 1-, 350 And wlien may be manifested 1- Distinction between the requisites of the instrument conveying the title and that creating the trust 352 Trust in lands may be created by parol, but must be manifested or proved by writing 353 Valiil from its creation 353 "Written declaration relates back to the time of the creation of tho , , 353 trust DECREE. Notice to parties and privies only '-08 DEEDS. Fraud in the procurement or suppression of deeds 1^7 Constructive trust raised, etc 18(-19.-> Fraud in destroying deeds or other instruments through which a third party is to derive title, relievable, etc 188 Heir, etc., converted into a trustee l^^i 1^9 Trusts raised on a promise to purchase, etc 189 Raised ex maleficio, on refusal to execute, etc 189 Fraud not so much in the original acquisition as the refusal to ex- ecute the trust 1^9 Parol proof admissible to establish a trust, where deed absolute upon its face 1^1 Proved on the parol declaration of the trustee 191 Princii)le upon which parol proof is admissible 192 "Where deed had been burned by the party he was committed until he admitted it, etc 1^^ Registration of notice of the title conveyed, etc 204 Title deeds, trustee entitled to possession of 809 DEED OF SEPARATION. Between husband and wife 691 How far valid 691 Hav<^ been enforced latterly, etc 691, 692 In such cases a trustee deemed necessary 692, 693, 694, 695 Such the doctrine in United States 696 Property vested in wife by such deed taken subject to disabilities of coverture, etc 696, 697 Deed of separation does not make wife feme sole 697 INDEX. 885 PAOK. DELAWARE. Has a court of chancery 448 With jurisdiction of all causes in equity 448 Trusts as at common law 448, 449 DEMISE IN NAME OF TRUSTEE. What a good defence °1^ DETERIORATION. Where remainderman takes subject to 6S3 When conversion to be presumed, etc 633, 634 DEVISE. To trustees for an illegal purpose raises a trust for those otherwise entitled 1^5 To the separate use of a married woman will be construed to vest the legal estate in the trustee 785 How far a general devise will pass estates held in trust, etc., 825, 826, 827 Doubt arises upon certain presumptions, etc 827 How the question arose 827, 828 When the duty of the trustee to transmit the estate by, etc — 830, 831 Difference between a mere trustee and a vendor, etc 832 When a mortgage will not pass by 833 General devise for purposes applicable only to testator's property will not operate on trust estates 883 DEVISEE. Of an estate charged generally with payment of legacies and lega- cies fail , devisee has the benefit 69 Lord Eldon's rule 69 An estate devised, charged with legacies which fail, if it appear the testator intended the devisee to have the beneficial interest, the failing disposition works to the benefit of the devisee 75 A devise in trust for illegal purposes, makes the devisee trustee for the heir, etc 197 When the devisee is bound to warrant title, etc 823, 824 DISCLAIMER. Of the trust by the trustee 510 When required to give bonds and trustee refuses, etc it is deemed a disclaimer 511 After disclaimer, may act as agent, etc 513 Important that no act connected with disclaimer fix the trustee with the trust 515 886 DJDEX. TAGB. fyl2 DISCLAIMER— Continued. Lord EUlon's views, etc Must be such as vests the property in the others 626 May rebut presumption of acceptance , etc 629 When ilisehiimer deenieil to take etl'ect 630 Can the lieir disclaim, etc 630 May be by parol 532 Must be unconditional and unequivocal 633 Has been regulated by statute, etc 634 Effect of, etc 6;}4 "Where all the trustees disclaim, effect 535 No tinje within which trustee is bound to disclaim 5G3 DISCRETION. Of a trustee cannot be delegated. In a power in trust, extending to time, manner and individuals of a class -10 See Discretionary Powers. DISCRETIONARY POWERS OF TRUSTEES. No set words necessary to create, etc ~-2\ Depends on substantial intention of parties 7'Jl How made a trustee of the power 721 Are expressed or implied 722 When the trust requires a substantial exercise of the power. . 722-724 Appointments under must not be illusory 723, 724 When not exercised as to ajipointinents, etc 725 Court will divide among the individuals of the class equally. . 72t>-728 Statute of distribution furnishes the rule 726 Unless the testator has done so 727 Discretion must not extend to trust itself 728 But to time, manner and objects 728-732 Court will not exercise a mere discretionary power 732 Except in cases of a public charity 732 This exception repudiated in New York 732, 733 Court will not interfere with the exercise of a discretionary power, 734 Must be exercised in the manner prescribed by the trust instru- ment 735 Strictly construed, etc 735 Must be exercised by persons to whom committed, etc 735 When they survive, etc 73G If annexed to the odice, etc 736 Limited to a surviving trustee, may be exercised by a continuing one, etc 737 To annul a gift, must be exercised or the gift will continue, etc.. . 737 INDEX. 887 PAGE. DISCRETIONARY POWERS OF TRUSTEES— Continued. The objects of, will, if possible, take a vested interest 738 If they pertain to the management of estate, court may control them, etc 738 According to manifest intention of testator, etc 739 If of personal judgment, court will not interfere 739 Unless upon peculiar grounds, etc 739, 740 In restraint of marriage, void, etc 740, 741 How far may be exercised 741-748 Difference between conditions precedent or subsequent, etc 748 Lapse of time, etc., throws onus on the one asserting the forfeit- ure, etc 748, 749 Power to sell must be exercised by all 759 DISTRIBUTEES. In respect to the payment of mortgage debt, chancery looks to the origin of the debt 1Q7 DONEE. Where an estate is given charged with a void or lapsed gift, no trust arises, but the charge sinks to the benefit of the donee 59 So when charged upon a contingency which docs not happen, 58, 59, 60, G4, 65 DOWER. Legacy given in lieu of, draws interest from the death of testator, G37 But a general legacy of bank stock in lieu of, will not entitle widow to interest until transferred Note 3, 637 Not entitled to in trust estate 800 DRUNKENNESS. Temporary insanity I59 An individual utterly deprived of understanding, by excessive drunkenness, incapable of giving a valid assent to any under- taking 159 It must have been such as to deprive him of the use of reason and understanding I59 Presumption is that every man is compos mentis, therefore the burden of proof is upon the one alleging no7i compotes IGO Courts of equity, upon principles of public policy, not inclined to lend assistance in such cases to either party 160 161 Intoxication may become an important consideration to deter- mine the significance of other circumstances tending to show fraud 2QJ 888 INDEX. DURESS. What duress is sufficient to invalidate the assent of a party to a contract 1C2 Equity will protect those who cannot protect themselves 162 Former doctrine as to restraint through fear of mayhem or loss of time not recognized 102 Modern doctrine stated 162 163 Modifications of the common law doctrine 163 DUTIES OF TRUSTEES, etc. See Tac8T£ES. EJECTMENT. Brought in name of trustee 811 TIow in Pennsylvania 811 EQUITABLE CONVERSION. Where property is directed to be converted for purposes which are illegal, no conversion takes place 61 , 62, 67, 70 When the purpose is legal conversion takes place 66, 70 Doctrine of equitable conversion 67, 75-84, 491 No conversion if legacy lapse during lifetime of testator 67 In case of sale of real estate 76 Effect of this conversion upon the new character of property 76 Courts will not interfere to change quality of property unless it is the manifest intention of testator or vendor 77 Doctrine applies where the ultimate destination of the projK'rty is to be reached through several gradations 77 If first conversion is out and out, and the second qualified or con- tingent, first conversion stamps the character of property 77 Property taken under a will or settlement directing its conversion, must be taken in such character 78 If the direction to convert is not imperative no conversion takes placQ 78 A mere power to sell docs not convert 78. 79 Conversion depends upon the lawful intention, etc 79 Money devised to be laid out in land and settled on an heir is con- verted to real estate 81 Real estate devised for payment of debts, etc., converted to per- sonalty 81 It will be considered as converted only to the extent necessary, unless the intention be to convert it out and out 81 Lands devised, and afterwards sold in lifetime of testator, who dies before the purchase is completed, are converted, and pro- ceeds go to personal representatives 81, 82 INDEX. 889 PAQB. EQUITABLE CONVERSION— Con hnugd. Lands taken in payment of a debt due to an alien are, when held in trust to sell for the payment of the debt, considered as con- verted to money g2 Actual conversion may be prevented by the act of the party bene- ficially interested 83 See Conversion. BQUITABLE MORTGAGE. An agreement may take effect as, etc 490 EQUITY OF REDEMPTION. The king liable for in England ? 327 The State, in this country 329 330 EQUITY OF THE WIFE FOR SETTLEMENT. The doctrine of gg4^ gg5 When lost, etc 665,675 Of what property, and to what extent 6G5 666 Depends upon extrinsic circumstances 666 When the possession by the husband not a bar to 673 What amounts to a reduction into possession 673, 674 In what the equity consists gy^ The general rule in respect to 574 Limits of the power of the court difficult to fix 675 Power exercised in special cases 675 q-jq How far court will take notice of, upon her motion, not settled.. . 676 Trustees may require a settlement upon wife before transferring property to husband gy7 May l)e purchased by husband P77 •To what extent . /.V7 ^-o 0/7, 678 Voluntary settlement after marriage no bar g78 Living separate from husband gives no additional equity 678 Against whom enforced gyo Exceptions as to life interest 670 Husband's bankruptcy, etc., raises presumption in favor of wife. . 680 ESCHEAT. State takes escheated lands subject to all equities and trusts 329, 330, 806, 807 In most States regulated by statute 330 808 809 ESCHEATED LANDS. Not discharged of the trust, etc 809 890 INDEX. rAOU. ESTATES. Purcliascd with fiduciary funds, trusts result to eettui que trutt.. 32 Liability of real or personal estate for payment of mortgage debt, 107 Rule in such cases, by Justice McLean 107 The acquisition of l%al estate in property tainted with fraud, 160-196 ESTATE OF A TRUSTEE. When any legal estate vests in him 772 At law, trustee regarded as the legal owner 772 Effect of the statute of uses 772 Statute designed to defeat the estate of trustee 773 Design of the statute- defeated by construction of the court. . 773, 774 Will not be taken away contrary to the intention of tiie testator. . 781 Presumed to be commensurate with the charges or duties imposed on trustee "^ "Will be enlarged or cut down as exigencies require 791, 792, 793 Incident to 80(^820 "When they merge 812 EXECUTOR. Whether they take residue of testator's property, a question of intention ^^ Rules for determining intention 100 In United States generally against 99 Equity lays hold of every circumstance to convert executor to a trustee 99 Rules for excluding executor from residue, and converting him to a trustee 100,101,102,808 Exceptions to 6th rule 102, 103 When he shall not be excluded, etc 103, lai Vested with legal title to all i>ersoual estate of which testator died. possessed 104 Hold property of his testator in trust 483 Cannot be permitted to purchase, etc 484 In United States not entitled to undisposed residue 604 May be residuary legatee, etc 501 A question of intention, etc 505 Rules for determining intention, etc 605 Powers of sale to, survives while plural number remains, etc 756 Power given virtute officii 757 EXECUTORS AND ADMINISTRATORS. Arc prohibited from dealing with the estates of their testators and intestates 149 INDEX. S91 PAGE. EXECUTORS AND ADMINISTRATORS— Con«nued. Reason for the rule ; a conflict of interest and duty 1-19 Rule general in the United States 149 Rule not evaded hy the intervention of a third person 150 But when there had been no previous understanding an executor may re-purchase from a stranger, etc l'>0 They hold the property of the estate in trust for payment of debts and legacies, etc. 150,483 Hence the rule applicable to trustees and cestuis que trust ap- plies 150, 484 Executor cannot purchase under an order of sale from the court. . 151 The intention of the law is to exclude the possibility of fraud, etc 151,484 If executor unites with others in the purchase it makes the whole sale voidable 1 51 But must be avoided within a reasonable time « 152 EX MALEFICIO. A trust ex maleficio when raised 189, 487, 489 EXTRAORDINARY ADDITIONS. To usual income, etc., treated as capital as between life-tenant and remaindermen G37, C38 EXTRINSIC CICUMSTANCES. Such as arc acctdenfa/Zy connected with the subject matter of a contract, and bear upon it at the time of the contract 177 FATHER. Unable to maintain his children, may have thorn maintained out of their own estate 641 Need not be insolvent to require it 641 Will be required to maintain his children if able 642, 647 Step-father not liable etc 647 A gift to, for the maintenance of his children, is a gift for his benefit fro tanto 643 Will be directed for their support, etc G48 FAILING DISPOSITION'S. Trust results to heir or next of kin 64 Difficult questions concerning which 64 Intention of testator or grantor is to govern 64 Rule for determining 64, 65 When it goes to the residuary legatee 68 892 INDEX. PAOI. FEME COVERT. As trusteo 347 Ilur legal capacity where her own or her husband's interests are not concenu'd 847 Ilur separate estate, etc 5re Married Womkn. FIDUCIARY. Fiduciary funds used in purchases raise a trust 32, 88 Right to follow trust moneys as long as identity can be established, 83 But if mingled with trustee's private funds, he must establish the amount, or cestui que trust takes the whole 34 The principle on which the trust is raised 34, 36 Purchases not void, but voidable 86 A presumed confidence in all fiduciary relations, equity will not permit to be abused, etc 482 Burden of proof how imposed 483 FLORIDA. Circuit court, as a court of chancery, is always open, etc 449 Rules of practice, same as prescribed by the Supreme Court of United States 449 And practice regiilaled by the practice of the High Court of Chancery, Englai\d 450 Declarations, etc., of trust, must be in writing 450 Separate estate of Married women in 058 FORFEITURE. Lands forfeited to the State are taken subject to all equities, etc., 320, 330, BOG, 807 FRAUDS. Actual and constructive, as a basis of constructive trusts 112-169 Definition of frauds 113 Mistake of facts, proving the fraud, for the fraud itself, a cause of confiict of decisions 114 Lord Ilardwick's classification of cases 114 Distinction as to conclusions of fact and conclusions of law ..115, 116 Continued possession of the vendor, evidence of 117-120 Different decisions ut supra. In the acquisition of property 170 Constructive trusts raised against the fraudulent party 170, 171 Implied fraud upon the ancestor when advantage is taken of the young heir 167 Where any degree of fraud has been practiced against young heirs, etc., relief will be granted 169 INDEX. 893 PAGE. FRATJJ)— Continued. What suppression of truth amounts to fraud 170 What is an actual fraud 171 The misrepresentation must be of matters material to the interests of the other party 171 Misrepresentation may be by deeds and acts as well as by words. . 172 Immaterial that the misrepresenting party did not know his state- ments to be false 172 Pothier's exposition of the subject 172, 173 Two methods of practicing deception amounting to fraud 173 Suggestio falsi and Suppressio veri 173 False statements extend to acts and artifices by which the other party is misled 173 Fraud as to a part of the transaction is fraud as to the whole 174 When connected with gross suppression of truth, less false affirm- ation required 174 Fraud by suppression of the truth 175 What amounts to a suppression against which the court will re- lieve 175-179 In what cases concealment is deemed a breach of trust 179 Where confidence is necessarily imposed 179 Where silence implies direct affirmation 179, 180 Rule in the mercantile world where the relation of buyer and seller is one of antagonism, caveat emptor 180 Must not misrepresent anything material, use no artifice of any kind for concealment; beyond this, the law says, caveat emptor, 180 Rule as to intrinsic and extrinsic circumstances 177 Seller not bound to disclose extrinsic circumstances 177 Contracts with idiots, insane persons, etc., set aside on the ground of fraud 181 Contracts with infants, etc 182 In case of surpri.se, etc 185 Acts in fraud of the rights of third parties 187 FRAUDULENT CONVEYANCES. To defeat creditors, raises a trust by construction of law 196 See Constructive Trusts, etc. FRAUDULENT PROCUREMENT. Of wills, remedy at law, as a general rule 187-195 But where remedy at law is grossly inadequate, equity will grant relief 18&-195 And raise a constructive trust 187-195 894 INDEX. PAOI. FRAUDULENT REPRESENTATIONS. Tliinl party held liable fur fraudulent representations, with design of influencing the happening of marriage 123 Acquisition of property by, constructive trust may be raised 170 See Constructive Trusts. GRANTOR. Trusts in favor of, when 502, 503 Depends upon the intention 502 Rule for determining 502, 503 GEORGIA. Trusts are administered according to the rules and usages of com- mon law 442 Declarations of trusts, etc., of lands, must be manifested, etc., by an instrument in writing, etc 443 Estate of beneficiary liable at law for debts 443 Power of court, etc., as at common law 443 Separate estate of married women in C58 GUARDIAN. Not discharged immediately on ward's becoming of age 134, 135 Cannot purchase for himself when his ward is concerned 136 If he puts his ward's money in trade, ward may elect to take profits ^^5 Can only apply the income of the infant's estate to his mainte- nance, etc "'^ If he apply the capital of the fund on his own responsibility, he is liable G48 Should not expend any portion of the capital of tlic infant's fund for his maintenance, without an order from the court 044 Except in certain cases 644 Cannot apply the income, etc., unless authorized by trust instru- ment 645 Or if amount be left uncertain 645 Not to place funds in the hands of beneficiary who is incompe- tent, etc 645 When to apply to court, etc 6 IG See Guardian and Ward. GUARDIAN AND WARD. Constructive trusts arising in transactions between them 134 All gifts, etc., by ward to guardian are discouraged, on the broad principles of public utility 134 Courts watch, with great jealousy, transactions of this character, 134 INDEX. S^^ PAOB. GUARDIAN AND ^ARB— Continued. Not discharged from responsibility immediately on ward^s coming of age 134, 135 Time allowed for ward to investigate 13<> Reason for doing so 135, 136 Cannot purchase for himself when his ward is concerned 136 If guardian puts his ward's money in trade, ward may elect to take profits of trade or compound interest 595 HEIR AT LAW. Trust results to, when .' 42, 43 Between heir and next of kin there is no equitable conversion 43 When land is directed to be converted into money, and the pro- ceeds applied to illegal purposes, etc., trust results to heir at law 58 A particular estate, upon the determination of which, remainders are limited, failing from being void, etc., does not accelerate the remainder, but the beneficial interest in the failing disposition will result to the heir at law 62 Rule as to failing dispositions 64, 65 Destroying will or deed, etc, becomes trustee by construction of law 188, 189 Made a trustee by implication of law, etc 485, 486 Or by act of law 560-565 HUSBAND. E.xchuled from separate estate of wife 662 By what words such intention manifest 662, 663 Intention to exclude must be clear 662 Conveyance by to a trustee for use of wife sufficient 609 What not sufficient 669, 670 Merc intervention of trustee not sufficient 670 Husband trustee within the ordinary rule of trustees 671 May be converted into trustee of wife, etc 664, 670 When the husband may discharge the debtor or trustee of the wife, 673 May become the purchaser of the wife's equity to a settlement by a previous settlement ^77 To what consideration prima facia applies 677 Not to property subsequently acquired 677 How far assignment by husband of wife's choses, etc., will be enforced, etc 680,681 Permitted to receive the income of wife's separate estate without objection, etc., his 690 Wlien trustee not to pay him, etc 690 His right to separate estate settled on wife while unmarried, etc., 690 896 INDEX. FAOC HUSBAND AND WIFE. When wife may hold as trustee of husband 486 When husband holds as trustee of wife 487 See Sxi'AaATK Estate or MAaaiEU Women. IDENTITV. May follow trust money as long as identity remains 88 In what identity consists 88 IDIOTS AND INSANE. Contracts with, deemed fraudulent 181 Constructive trusts raised in their favor 181 Equity interferes on the ground of fraud 181 Kelief depends on circumstances which mark each particular case, 182 In case of fines levied, etc.. a reconveyance will be decreed 182 And conusec or demandant decreed a trustee of the suffering party 182 May be trustees 34G But cannot act as such 347 Must act by committee 347 ILLEGAL PURPOSE. A conveyance or devise to trustees, upon secret understanding to be applied for illegal purposes, etc, void 124 In fraud of parties otherwise entitled 124 Where bill is filed by heir alleging such trust, thedefendants K)und to answer notwithstanding statute of frauds 125 ILLINOIS. Circuit court has jurisdiction in law and equity, and proceedings in equity according to the general usages of courts of equity 416 Has a chancery code 416 Have a common law jurisdiction of trusts, etc 418, 4iy Special act relating thereto 419 ILLUSORY APPOINTMENTS. Under a discretionary power fraudulent, etc 723, 724 And will be set aside 724, 725 INDIANA. Greneral jurisdiction 445, 446 Trustees, etc., may sue without joining with them the bene- ficiary 446 What trusts of land authorized 44G. 447 Trust recorded, etc., to be deemed notice 447 INDEX. S97 PAGE. TSmA.^ A.— Continued. Certain trusts not assignable '^47 Money paid to trustee in good faith, the payer not responsible for the application of the money, etc 447 On the death of trustee, etc, trust vests in the court, when 447 Trustees may be discharged, removed, appointed, etc., when, 447, 448 INFANTS. Treated as persons having no capacity to contract, as idiots, etc . 182 This inability is a presumption of law, which admits of no rebutting evidence 183 Their contracts generally voidable 183 Rule as to void and voidable contracts 183 When they may avoid them 184 Mode of alHrmance or disaffirmance 184 Current of American decisions 185 Cannot act as trustees •'48 May hold the office, etc 349 Legacy to, without suitable provisions for support draws interest from death of testator f»37 The property of, under the supervision of chancery 641 "Will be maintained out of their own estate when father unable.. . 641 Even though the settlement direct an accumulation G41 Court will provide for its immediate ^auts out of the principal fund if necessary G42 Except in cases where there is a limitation over ... 643, 644, 645, 646 The interest or income of their estate only to be applied for their support unless by order of court C43 INTENTION. Of grantor, determines whether there shall be a trust in case of a voluntary conveyance 38, 39, 43 Trusts will be raised by words of recommendation, etc., according to the intention of the testator 46 In construing wills, etc., the court must give effect to the legal intention of the testator so far as can be ascertained 48, 60 Intent governs the use 64 The presumed intention in case of intestacy 06 When the testator evinces an intention against the heir, no trust results to him G6, 68. 70, 71, 72, 73 An intention to convert realty into personalty, etc., excludes the heir 74 The intention of the testator determines the equitable conversion ofhis estate 77,78,80,492,493 And this according to its ultimate destination 77, 78 67 808 INDEX. TkOt. INTENTION— Con/in«*(/. If till' (liriction to convert is not imperative, it does not »how a Hutliiiiiit intention to convert 7H, T'J, 4'.»-{ Intention of purty necesHury to waive a lien as trust bl ■\Vhetiier executor takes residue of testator's proiK-rty question of intention 00 Rules for determining intention 100 Rule us to undisposed residue to executors, one of intention 105 Intention of testator that executor should not take will give equity jurisdiction in case of fraud, etc 1H7 May change the order of administration 803 Where doubt exists as to intention, the order of marshaling as- sets will be followed 305 Of the testator, when it raises a trust 48»J Question of conversion one of intention 4C»*J, i'Xi liut such intention may Ik; implied 492 And it must be to execute legal and just intentions 493 In voluntary conveyance, intention to confer a benefit implied from words of affect ion , etc 5( 4 Whether executor take undisposed residue 5(>ij Rule for determining 500 Of te.otator, gathered from the will, may change the rule as to p.iyment of interest by life tenant G'25, 62*i That property should be enjoyed in specie, prevents conversion. . C'J») Determines whether legacy be general or specific G28 In settlement of wife's separate estate, the intention must appear to exclude the husband fi»J7 What words indicate such intention GG8, GG9 Wliere the question turns upon the nature of the duty to be per- forme68 The law of Kentucky changed by statute CiS Doctrine in South Carolina 000, 001 And in the several States OO'J Restriction as to alienation o|>vrates only during coverture 083 Kcstriction not extinguished, but only suspended, during dis- coverturc 684 Restraints against alienation of separate estate cannot \v dis- pensed with even in favor of, etc 085 Express negative declaration or its equivalent necessary to de- prive, etc., of her right of disposing, etc 685 What is suflicient to deprive, etc., of right, anticipation 080 In suits respecting her separate estate, husband must be party de- fendant, etc ^80 In disposition of her separate estate, concurrence of trustee not necessary , etc 680, 687 Unless made so by trust instrument 687 When she pledges, etc., for husband's debts, entitled to rights of surety ♦'"'^8 Accumulations and savings of separate estate belong to her 088 Permitting her husband to receive rents and profits, etc., of sep- arate estate, her consent pn-sunied 689 Trustee making sucli payments should require her assent, etc.... 680 The act of, in several States 0H9 As to property settled to separate use while unmarried, etc., 690. 091 A devise to the separate use of. will l>e construed to vest legal estate in trustee 785 MARSHALING ASSETS. Order of marshaling assets for payment of debts, etc 301 May be changed by testator 803 See Trusts for Benefit or Creditors. But court will not presume the testator intended to change the order '^^^ But when intention is doubtful, the legal order will be pursued.. . .305 MARYLAND. Trusts administered as at common law 4<3 No favored stock in which to invest ^'^° Separate estate of married women in 6o8 INDEX. 90^ PAGE. MASSACnUSETTS. Special enactments 410-416 Act giving equitable remedies in suits at law 410 Jurisdiction in Supreme Judicial Court 410, 411 Claims a common law jurisdiction, etc 411 Special provisions in appointing and removing trustees 411 To give bonds with surety, etc 412 Trustee becoming insane or otherwise incapable, may be removed and another appointed 412 When trustee dies, declines, etc.. Judge of Probate, etc., appoints, 412 Executor to perform the duty of trustee in certain cases 413 Provisions in respect to donations, etc., to pious and charitable uses 413-415 Appointment of trustee in case of expiration of charter, etc 415 Trustee appointed to take charge of funds arising from sale of wood, etc 416 The appointment of trustee, etc, vests the trust estate in him 416 Rule as to investments by trustees, etc G04 MAXIMS IN EQUITY. A Court of Equity never wants a trustee 2 A valuable consideration is requisite to put a Court of Equity in motion ^" As between the heir and next of kin, there is no equity 43 The intent guides the use 55 For many purposes, equity considers that as done which is agreed to be done, and which ought to be done 109 MENTAL WEAKNESS. The mental weakness of one of the parties to a contract may lay the foundation for raising a constructive trust 154, 155 Basis of the rule in constructive fraud 155 Incapable of giving a valid assent 155 A mind legally unsound betrays a total loss of understanding. ... 155 Rule same in law and equity ^'^'^ Courts recognize degrees of mental imbecility 155 Any considerable degree induces judicial vigilance 155 When coupled with other impeaching circumstances, aids in deter- mining fraud I''" Mere mental weakness not amounting to idiocy or insanity, not sufficient ^^^ Great disparity between parties gives weight to other circumstan- ces 156,157 Not material from what cause the weakness arise, or whether per- manent or temporary 157 906 INDEX. TAOK. MENTAL WEAKNESS— Conhnufrf. Courts do not relieve iKxause of the mental weakness, but because of the fraud 168 Insanity once found upon in(nii8ition, its continuance is presumed, IM Keport of lunacy, only prima facie evidence 169 MERGER. Trust estates are subject to merge in the legal estate 812 Rule as to the same 812, 813 Legal and equitable estates must be commensurate 813 Legal definition, of etc 813 Mergers not favored in equity 813 Equity will not permit the interest of eettui que trust to be des- troyed by 814 It is the lesser estate which is extinguished 814 Doctrine of, etc 816 MICHIGAN. Circuit courts of, arc invested with chancery powers, etc 420 Uses and trusts abolished except in certain cases 420 In what cases allowed 421 When express trust created for lawful purpose, not enumerated. etc., vests no estate in the trustee 422 But they take a power in trust 42*2 Valid trusts vest the whole title in the trustee 422 Except in certain cases 422 All interest not embraced in the trust remains in the grantor 422 Conveyance to trustees, when the trust is not named in tlie deed, absolute as to subse(iucnt creditors 423 On death of surviving trustee, trust vests in the court 423 Court may accept the resignation of trustee 423 On petition or bill, court may remove, etc 423 In what cases court may remove a trustee 423 Chancellor may appoint trustee, etc 423 Construction of acts , etc 424 Judges may direct sale of stock, etc Gil, G12 And the investment of the funds 012 MINNESOTA. All equity andchancery jurisdiction exercised by like processes as CIVIL ACTIONS ^""> '"^ Uses and trusts except as authorized by statute abolished 461 Uses executed by statute • • ^"^ What express trusts arc authorized 401 , 402 Trusts for rents and profits not to be alienated 462 INDEX. 907 PAGE. MINNESOTA— Coniinuei. Except when for a gross sum 4G2 When trust instrument absolute as to creditors, etc 462 When estate of trustee ceases 463 How removals, resignations, and appointments of trustees regu- lated ' 463,464 MISSISSIPPI. General jurisdiction 439 Have a chancery court 439 Beneficial interest of cestui que trust is liable on execution 439 Delarations of trusts of lands, etc, to be in writing 439 Limitations of certain cases 439, 440 Certain beneficial estates liable to dower and curtesy 440 Generally trusts administered as at common law 440 MISSOURI. General jurisdiction 440 Has a court of chancery 440 Particular statute 440,441 Deeds and declarations of trusts must be manifested, etc., in writing 442 Statute as to investments G12 Separate estate of married women in 658 MORTGAGE. Where estate descends, etc., subject to a mortgage it does not bind the personal estate lOG Although afterwards assigned and assignee covenant to pay the borrowed money 106 Rule for determining the liability of the real or personal estate, for the payment of mortgage debt 107 Chancery looks to the origin of the debt to determine the rule be- tween distributees 107 If the contract be personal, personal estate the primary fund.^ ... 107 If the estate descend charged, etc., real estate the primary fund. . 107 What description in a devise necessary to carry a mortgage, etc... 833 And what not sufficient 833 MOTHER. Not liable for the maintenance of her children 648 NATURE AND QUANTITY OF ESTATE IN TRUSTEE. Rules determining, etc '°° 908 INDEX. ) y( i NATURE AND QUANTITY OF ESTATE, ETC.—Continueu. Devise to trustees and their heirs may be restrieted to uii estate pur autre vie "89, 801 See EsTATKs. See Trustees, etc. May be enlarged by imidieatioM 802 Rule in tlie several States 8(»'2, 803 Where no words of limitation, a fee may be implied • 8<>4 May be, etc., in devisee ^^*' What words deemed sufficient to pass a fee 805, 806 NATURALIZATION. Has a rctro-aetivo efT-ct 345 Is deemed a waiver of liability to forfeiture 315 NEW UAMPSHIRE. Supreme court of judicature has jurisdiction in all cases of trusts, etc 408 And appointments for charitable uses 408 Trusts of land to bo created in writing, etc 408 Trustees to give bonds in certain cases 409 When bond may Ix; omitted 404 Rrfiisal, etc., to execute bonil, a renunciation of the trust... 409, 470 How, \>lieu and by whom trustees appointed, removed, etc 470 NEW JERSEY. By the Constitution, a court of chancery constitutes a branch of the judiciary 431 Trusts administered according to the principles and usages of the common law 431 Provisions by statute -I'M, 432 NEW YORK. Special provisions of laws of. relating to trusts 391-403 The authority of the court to remove and appoint trustees, is rcRulated by statute 391, 392. 393 What express trusts of lands authorized 393 The appointment of a new trustee by the court does not vest in him the trust property, except in cases where it is so provided by statute 395 The object of the New York statute of uses and trusts was to put an end to mere passive trusts, by converting them into legal estates , etc 397 When property is purchased by one and consideration paid by another, statute abolishes the resulting trust 399 INDEX. 909 PAGE. NEW YORK— Continued. An interest in rents and profits of real estate may be created in trust for the benefit of a third party • 40O The interest of persons for whose benefit a sum in gross is created, is assignable ^^" That for a sum uncertain is not 401 "Where property is bequeathed in trust and no trustee appointed, the heir or personal representative will be trustee 402 When devised to a body incapable of taking, the trust attaches to the estate and the heir, etc , becomes trustee 402 The separate estate of married women in, modified, etc 651-656 Trustees of powers of sale must sell for cash, etc 770 Upon death of surviving trustee, trust vests in court, etc 834 58 NEXT OF KIN. When trust results to 42, 43, 53, 54, 57, As between the next of kin and the heir, there will be no equitable 43, 44 conversion When the whole or part of a residuary bequest fails, if of personal estate, a trust results to the next of kin ^1 > ^^ Rule as to failing dispositions "'•*' Equitable conversion in favor of next of kin, when 66 No conversion when the bequest lapses in lifetime of testator. ... 67 When the testator leaves the conversion of property discrckionary with executor, trustee, etc., no conversion will take place; and, as between heir and next of kin, it will devolve according to its 7Q actual character ' ^ NON-COMPOS. See Idiots and Insane. NORTH CAROLINA. Superior court of law has all the power and authority of a court of equity 450 Deeds of trust to be valid against creditors, etc., must be regis- tered 450 Infant trustees to convey under direction of court 451 Interest of beneficiary liable to sale on execution 451 Separate estate of married women in C58 NOTICE. Purchase of trust property, with notice of the trust, deemed a fraud, etc , ^^"^ Principal, if he acts with notice, his act is in fraud of the rights of another ^"' 910 INDEX. PAOI. NOTICE— Continued. The same in purchases from executors, etc l'*7, 198 Purchasers, knowing the executor is wasting the estate, etc. chargeable with trust ^^^ General doctrine as to misapplication, etc 1^8 At what time notice will charge, etc 199, '200, 201,819 The principle involved In the protection of the rights of the inno- cent 200,818 To whom notice must be given 200. 820 Notice must be reasonably certain 201 Vague reports or rumor not sufficient 201 May b(! actual or constructive 2<'2 Good constructive notice, if sufficient to put the purchaser on en- quir}', etc 202,821 The possession of the estate by another, etc 203, 822 Registration of deed, etc. , not sufficient in England 20-t Otherwi.se in the United States 2('l It is the legal method of giving notice 2'»t Such is the object of registration 21' 1 If subsequent purchaser have actual notice of an unregistered deed 205 No difference between actual and constructive notice, in the effect, etc 20C Decree, etc., constructive notice to parties and privies, etc 208 OBJECTS OF TRUST. Must be definite and certain . . . ., 47 May Ik- certain as to the class who arc to take .M "When too indefinite, property falls into residuum 51 , 52 OFFICE OF TRUSTEES. See Trustees, office of. Termination of 8G1-8G5 How terminated : 1. By full expiration of term, etc 8f.l and transfer of trust property, etc 801 2. By resignation of trustee, etc 8»»2 3. By discharge, etc., from the 8G3 4. By death of the trustee 863 And lastly by decree of court 804, 865 OHIO. Nominal distinction between courts of equity abolished 451 Remedies in equity administered according to usages of courts of equity 451 INDEX. ^11 PAGE. OHIO — Continued. Trusts administered accordingly 451 How trustees appointed and removed, etc 452 In certain cases trustees must give bonds 452 Trustees appointed by a foreign jurisdiction may execute the trust, etc ^'^^ How to carry into efiFect trusts created by foreign wills 453 Duty of attorney general in certain cases 453 In most respects, trusts are administered as at common law 454 OREGON. Trustee of express trust may sue without joining the beneficiary, etc 470 In suits against trustees claims of beneficiary may be set off, etc . 47 PARAPHAllNALIA. When the wife is executrix, the gift of her parapharnalia, as a particular bequest, will not exclude her right to the residue, etc 103,104 PARENT AND CHILD. Constructive trusts arising in the relation of 132-134 Contracts and conveyances by children for benefit of parents, sub- jects of judicial jealousy 132, 133 Presumption in favor of parental honesty 133 Contracts presumed to be fair 133 Same principle applies to those standing in loco parentis. May exist between brother and sister 133 When advantage has been taken a trust is raised, In voluntary conveyance, presumption in favor of child is strong, 39 PAROL EVIDENCE. Parol evidence admissible to raise a trust in case of a will, 189, 190, 192 Cotemporary declarations of a testator admissible 190 Declarations of a devisee also 190 So also in case of a deed absolute upon its face 191, 192 Trusts of real estate may be created by parol 353 Valid from the time of its creation 353 Written declaration relates back to the time of its creation 353 Trusts of real estate must be proved, or manifested by some •writing 355 Parol agreement to purchase lands, etc., when raises a trust, etc., 486 Not within the statute of frauds 486 912 INDEX. PARTICEPS CRIMIXTS. In what cases equity will grant relief 120, IHO Upon what principle l^t). 131 PARTITION OF ESTATE. Not authorized by power of sale "<^ PARTNERS. As joint tenants As tenants in common » • • In respect to lands of partnership, eettuit que trust 98 Joint debtors, in their relations as such, arc deemed partners. ... Ill Have right to have p.irtncrship property first applied to payment of partnership debts Ill One partntT secretly purchasing real estate, etc., becomes trust«.*e for the firm <90 PARTNERSHIP PROPERTY. When real estate is purchased with partnership funds, on partner- sliip account and for partnership purposes, all the partners are cestuU que trust thereof • 98 WhtK'vcr takes the legal title thereof, with notice, etc., holds a« trustee, etc 98 Bona fide purchasers, without notice, take the title discharged of the trust 98 In New York, land held by partners is held by them as tenants in common 98 " PARTY AND PARTY." Costs taxed between 713, 714 When trustees are so ta.xed 714 PENNSYLVANIA. No court of chancery prior to 1825 403 Act to prevent the failure of trusts • 403 Authorized the court to appoint trustees in certain cases 403 Jurisdiction created in several courts 404. 405, 406 Mode of proceeding, etc 406 Court to appoint trustee in case of infancy or absence of the trus- tee, etc 40G Or in case of habitual drunkenness, etc., court may dismiss trus- tee 406, 407 Court may discharge trustee upon his own application by bill or petition, etc ^^^' In what cases courts have power to appoint trustees 407 INDEX. 913 PAQK. PENNSYLVANIA— Con-1C8 58 914 INDEX. PACK. POLICY OF THE LAW AND PL'BLIC VOlACY—ContinutJ. Profi'sscd (ibjfct of the ruU' IW To watch contracts growing out of |M.-ciiliar ami contldeutial rt-la- tioni, etc 131-1.',4 To protect those who are laboring under mental weakness, etc.... l.M See Drink EN NESS. See Common Sailors. PORTIONS. Trusts for raising portions ^UT Land , a primary fund for the payment of o IT I'articuliir estate, determining before the contingency transpires. . \Vhen tlic interest vests, etc 318, 319, 31.N") Rule of interpretation, and reason of the rule 318, 3iy Based upon intention of settlor 1519 Court will presume that it was intendiil child shouhl take a vestetl interest, etc 3'jn How portions usually raised 3J1 Land, primary fund, etc 3J1 No debt created against settlor or his personal estate :5'JI Law in New York 322, 323 POWER. Trusts under 209-222 In case of a mere power, equity will not interfere 200 But if a use is clearly indicated, a trust is raised, etc 209 A uieR' power is discretionary 209, 210 A trust is imperative 210 A power is in trust when its execution is imperative 210 Discretion in such cases extends to time, manner and individuals of a class, etc 210 Courts inclined to raise trusts in such cases 211 All depends upon the manifest intention of the donor 212 Rules for determining when a trust is raised 21 I Trust will be raised under a power where the discretion does not extend to the trust itself 217 A trust subject to the exercise of a power 217 Powers in trust regulated by statute 21H-221 Appointment of trustees under a power contained in the trust in- strument 35G A power to' appoint trustees should be drawn with great particu- larity 356, 357 If there is anrtffguity in power of appointment, the trustee should apply to court 357 Powers of appointment should be strictly executed 359 INDEX. 915 POWER— Continued. Power of appointment of trustee in place of any deceased, by a survivor, is well executed by appointing in place of one who died in the lifetime of the testator 360, 361 Courts adhere strictly to the intention of the testator in the execu- tion of these powers 361 How survivor shall proceed to appoint, etc 361 Power of appointment to be exercised on a vacancy occasioned by incapacity or unfitness 362 Difference between incapacity and unfitness 362 Power of appointing new trustees can be exercised only by those to whom it is given 363-365 Unless there are extending words 363 Rules stated by Mr. Sugden 363, 361 Doubts as to who shall exercise the power of appointment seldom arise, but in what cases 365 "When a less number than those named can exercise the power 366 Not unless to be inferred from the wording of the power 366, 367 If it appear from the language of the power that the testator did not make the exact number essential, etc., it may vary 368 It would be irregular to appoint a greater number 370 Unless a discretion was given, etc 370 AV'here the power provides for its exercise when the trustees are reduced to a certain number, etc 371 The power might be exercised before that 371 , 372 Where the terms of the power are advisory 372 Not safe, however, to neglect the directions of the donor 372 Importance of particularity in framing powers 373 Where the donees of a power to appoint new trustees neglect or refu.se to exercise tiie same, the remedy is by application to the court 374 If necessary, the court will interfere 37'4 But where a discretion is given, the court will not interfere when the donee of the power is acting in good faith 374 The court will not destroy the discretion, but see that it is properly exercised 374 While the trustee is before the court, it will be improper for him to exercise the power of appointment 375 Manner of transfcring property to newly appointed trustees. . 375, 376 POWERS OF SALE. 1. As appendant to the legal estate 750-768 2. As a mere collateral authority 750-768 In latter case, lands descend to heirs, etc 750 ^IG INDEX. TAOK. POWERS OF SM.F.— Continued. Wlien fitiliold passes to trustee y.'iO Special provisions of New York statute 7')l In Pennsylvania 753 Power will be inferred when necessary TM A mere declaration of trust T.V} Iini)lied under a trust for payment of debts 7^>') Must be exerciseil by tliose to whom given 7;"it *lIow when no donee named 764, 755 To be exercised by the one who is entrusted with the disposition of the proceeds 754, 755 "Well executed by those who accept, etc I'yf) When power survives, etc 755-707 Difference In-tween a condition precedent and a condition subse- quent 707 Purchaser must see that condition precedent has been complied with, etc 767 Otherwise as to conditions subsequent 767 Chancellor not to interfere with discretion of trustee 769 Trustee must regard the interests of the cestui que trutt as to man- ner of sale , etc 769 Executors not restricted to any particular manner, etc 709 Must act in good faith, etc 769 Who alone can take advantage of irregularities, etc 771 INDEX. 917 PAGK. POWERS OF TRUSTEES. Discretionary powers 721-750 See DiscRETioNAKY Powers. Powers of sale 750 See Powers of Sale, PRINCIPAL AND AGENT. Constructive trusts arising in that relation 142-145 Basis of the rule in such cases 142 Principal contracts for the aid and benefit of all the agent's skill and judgment in the business committed to him 142 The principal's confidence in his agent's judgment and skill is presumed 142 In purchases by agent from their principals, there is a conflict of interests and duty 143 Rule in such cases 143,144 If agent sell his own property to his principal, without disclosing the fact, principal may avoid the contract at his option 145 If agent employed to purchase up a debt, etc., he must do it at as low a rate as possible I45 PRINCIPAL AND STEWARD. Constructive trusts, in case of 140-142 Rule based upon the presumed superior knowledge of the steward of the character and value of the principal's property 14 Steward may lease of his principal 141 If transaction depends upon contract, steward must make out that he paid full value, etc 141 If a mixture of boimty and contract, he must show his employer to be fully informed in every circumstance, etc 141 The principle is, the steward dealing with his principal, shall de- rive no advantage from his situation as steward 141 The relation differs nothing from that of principal and agent 142 PRIORITY or PAYMENT. Implied trusts arising in right of 110-112 Creditors of corporations in respect to corporate property 110 Creditors of unincorporated companies, etc 110 Creditors of partnerships; etc, Ill PRECATORY WORDS OR WORDS OF RECOMMENDATION. When they create a trust 45, 46, 47 , 223-231 Must be imperative, subject must be certain, and object defi- nite and certain 47, 49, 50, 230 When not sufficient 50, 51, 52, 230 918 INDEX. PAQI. PRECATORY WO.u>S, ETC.— Continued. Time, manner and particular objects Uft to tlic discretion of the trustee 003 Courts create implied or constructive trusts 223 What words have been deemed sufficient 224 Doctrine has been carried to great lengths 224 Depends upon the supposed intention of the testator 226 Sometimes words not sufficiently imjKrative 22'J "When the first taker is empowered to withdraw any part of the tubject matter, or at liberty to apply it to his own use, etc., the trust is defeated 227 Reason of the rule 227 Where the discretion is inconsistent with the character as trustee, 228 As wlien an absolute right of disposal is implied, etc 229 Where the objects are to be selected from a class, and the ap- pointor does not appoint, each individual takes equally 231 Words designating classes 2.'}1 PURCHASERS BONA FIDE, FOR VALUE, and WITHOUT NOTICE. The vendor's lien upon real estate will not prevail against an as- signment to specified creditors, for their particular security or satisfaction, for they are deemed to have the equities of bona fide purchasers, witfiout notice 89 Vendee has alien upon money deposited to be applied in discharge of ineiimbrance. etc 89 Lien continues wlien vendee has sold the estate to a bona fide pur- chaser, without notice 00 Purchaser takes the estate cum onere. Without notice, hold land under a covenant to settle 107 AV'ithout notice, hold corporation property as against creditors of the corporation, etc 110 Uold trust property discharged of the trust, etc 199 PURCHASE MONEY. When trustees of power of sale may give a discharge, etc 764. 70.'> PURCHASER. From trustee, with notice of the trust, becomes trustee, etc 197 A fine levied by the purchaser will not aid him 197 The principle on which the rule is based 197 The same as to executors and administrators 197 From executors, etc., have good title, etc 197, 19S Why 103 Knowing the executor is wasting the estate, etc, is chargeable with the fraud I93 INDEX. ^19 PACK. PURCHASER— Conitn«fid. The general doctrine as to the misapplication of assets 198 Trust attaches upon the principle, the purchaser has been guilty of fraud 198 Does not apply to bona fide purchaser, etc 199 What notice sufficient .199, 200, 201 When notice becomes effective 199, 201 The principle involved, the protection of the innocent party 200 When equities are equal they will be left to their legal rights, 200, 202 An innocent party having purchased, can sell to one having no- tice, etc., discharged of the trust 200 To whom the notice must be given 200 Must be such as court will deem sufficient to put purchaser on his guard 201 When sufficient for such purpose a constructive trust is raised 202 For purchaser must be presumed to have used reasonable dili- gence 208 If he purchase a present interest, and the trustee is not in pos- session, he has sufficient to put him on his guard 202, 203 The purchaser, without notice, must have acted in good faith, and used due diligence 204 In England the mere registration of the deed not sufficient, other- wise, generally, in the United Statiis 204 The legal method of giving notice 204 That the object of registration 204 When cestui que trust has disposed of his estate, etc., purchaser may require conveyance to him , etc 816 If any doubt as to validity, trustee may require the concurrence of the cestui que trust 816 What notice charges purchaser of trust estate 818, 819, 820 To whom notice must be given 820 Constructive notLce to, etc 821 What amounts to constructive notice to 821 If trustee not in possession, etc., notice sufficient 821, 822 Except on sale of a reversion, etc 822 When purchaser from cestui que trust may compel a conveyance. . 810 QUANTITY OF INTEREST. Which the trustee takes, etc 772, 783, 784 Determined by the intention of the party creating the trust 788 Presumed to be commensurate with his duties to be performed, 788, 789 But no greater than needed 789 May be enlarged or cut down, etc 789, 790 But rule applies only to cases of uncertainty 790 920 INDKX. PAUE. REAL SECURITY. As to what const it utfs real security fil3 In which trustees may invest 618 REASONABLE TIME. Trustee, etc. , entitled to, to make investments 597 REGISTRATION. Of a deed, in England, will not of itself fix the purchaser with con.structive notice, etc 204 Othcrwi.se, generally, in the United States -04 It is the legal method of giving notice Ii04 Object of registration, to give notice of the rights conruyed thereby 204 If purchaser has notice of the unregistered deed or mortgage, that is suffleicnt 204, 205 Proof of notice must be conclusive 205 In some States, the law requiring registration more imperative than in others 206 In all these cases, the aim is to protect the innocent 207 If equities in all rcsiHJCts eijual, they are left to their legal reme- dies 207 REMAINDERS. Not accelerated bj' failure of particular estate 62 REMAINDERMEN AND REVERSIONERS. Rights of, etc G16 Duties of trustees in respect to, etc 616 Courts will not leave them unprotected, as against tenants for life, etc 018 Where tenant for life is tru.stce for 619 The estate of, must be [>rotected by trustee 019 ■When waste committed by life tenant, has an equitable claim, as against mortgages, etc 019 Has a lien on rents and profits 619 May apply to court for security against life tenant 620 No estate in things quee ipso usu consumuntur 020, 028 If the gift is specific 020. 028 But otherwise where it is residuary, etc 020, 028 What property must be converted and invested 021 Rule in respect thereto 022 "When to pay interest on incumbrances during the continuance of the estate of the life tenant 625 General rule on that subject 625 INDEX. 921 PAOS. REMAINDERMEN AND REVERSIONERS— Conhnued. Takes, subject to deterioration, etc 633 Estate not destroyed by forfeiture of particular estate 809 See YouNQ Ueirs. On constructive trusts. REMEDY. Gross inadequacy of remedy at law, gives equity jurisdiction in cases of fraudulent procurement of wills 188 RENTS. Trusts for the payment of, etc. See Married "Wome5. Distinction between trusts to receive and pay and trusts to permit, etc 787 In New York, when the trustee is not authorized to receive, etc., he takes no estate 794 RESIDUARY BEQUEST. Operates upon all the personal estate of the testator at the time of his death CO Includes all bequests which fail during the lifetime of the testa- tor, either from lapse, illegality, etc 60 When it, or a part thereof, fails 68 When there is such a bequest but no legatee named, it excludes the executor 1 00 RESIDUARY LEGATEE. When they take 51 , 57 When entitled to a void or lapsed gift 59, 60, 496 RESIDUE. Rule for its disposition 105 Whether to executor or not 105, 504 RESULTING OR PRESUMPTIVE TRUST. Resulting trusts 20, 21 When raised 21 May be established by parol proof against face of the deed 24 1. Resulting from unexhausted residuum 24-28 Wh€n grantor intended to part with entire beneficial interest in subject matter, it will not arise 24 May be rebutt«d by parol 24 2. Estates purchased by one and consideration paid by another. 28-32 Resulting trust cannot arise where there is an express trust 31 3. Estates purchased by funds held in a fiduciary capacity 32-36 ^^i^2 INDEX. RESULTING OR PRESUMPTIVE TllV?,T-Continued. '^"' A trust rc'sultH to the U-iifflciury 33 Rule based upon the great moral obligation to refrain from placing ourselves in situations which excite a conflict between self-inte- rest and integrity 35 4. Voluntary conveyance without declaration of trust 30-42 5. Voluntary conveyance to a person as trustee and no trust de- clared, 42 Word " trust " not necessary 42 43 C. Property conveyed in trust, but the trust insufficiently declared, 44-57, 507 Arise from expressions of recommendation, confidence, hope, de- sire 45j 47 But not unless such expressions are deemed imperative 45 Or in a peremptory sense 45 45 To create a trust from wonls of recommendation, etc., the words must Ir> imperative, the subject matter must be certain, and the object certain and definite 47 7. Estates conveyed on particular trusts which fail of taking effect, 67-75 1. Which fail from U-ing v(»id ab initio 58-03 2. Which fail from the hapj>ening or non-happening of subsequent events (53_76 Ko trust results to the grantor where a valuable consideration has been paid, upon failure of the declared trust G3 8. Arising from equitable conversion of property 75-84 What const itutes e li^ Law of the several States 777, 778 Effect of the statutes of conveyancing in the several States. ... 779-782 STEP-CHILD. No claim for support upon step-father 647 02G INDEX. PAOK. STEP-FATHER. Not liable to support step-child, etc '^iT SriUECT MATTER OF A TRUST. Must be certain and diflnite &1 The court must know what and how much *>1 1 52 SUBSTITUTION. Implied trusts arisinp; by way of 106-109 Between creditor and party who takes the estate lOG Between such party and the heirs, devisees, etc 106 Assignee of a chose in action 1^° SUPPRESSIO VERI. When it amounts to fraud l"*^. l'''^- ^"'^ Definition by Judge Story l'** SURETIES. 93 Entitled to contribution from co-sureties, etc When one has taken indemnity equity will extend it to all 93 A surety paying the debt of his principal, shall be subrogated to no the rights of the creditor SURPRISE. A party entrapped into the execution of an instrument by ! 455 In open court or by petition, etc 455, 456 Trustee may be removed 456 When and how, etc 456 When and how trustees may be appointed 456 Separate estate of married women 662 Jus disponendi must be expressly given, etc 662 928 DJDEX. I-AOK. TESTATOIl. The intention of, as gathered from will, governs in raising trusts, etc 45, 48, 60 When testator evinces an intention against the heir, no trust results to him ^'** '•' The intention of, determines e(iuitable conversion 77 — 80 Rules for determining intention 100, 784, 786 When his intention raises a trust 486 TEXAS. No special statutes affecting the manner of creating or executing trusts, etc ^^ TITLE. AVho is bound to warrant ^-' How far a trustee, etc ^-■» How far an executor "**' TITLE DEEDS. Trustee entitled to, etc P09 TRADE. Restraints upon, generally against public policy, etc 125 Does not include particular contracts, restraining the exercise of a particular trade in a certain locality, etc 126 In the commercial world traders sustain a relation of antagonism maxim — caveat emptor 1°0 TRESPASS. "VVlR-n trustee may bring ^H When cestui que trust may '^H TRUST. What is a trust 1, 474 What essential to its creation 1 What may be the subject matter of a trust 1 Who may create a trust 2 Trust implies a trustee 2 Equity never wants a trustee Trust implies a beneficiary ^ Common law method of creating, bow affected by statute of 29 Car.II.§7 ^ When an express trust is created 1 1 Express trusts by parol 13, 14, 15, 16 Trusts in the nature of express trusts 17 INDEX. 929 PAGE. TRVST— Continued. Fiduciary words must be imperative on the donee 19 Implied trusts 20 Resulting or presumptive trusts, when 20, 21 From unexhausted residuum. See Resulting Trusts. Trusts which fail of taking effect because they are void ad initio. . 58 See Resulting Trusts. See Constructive Trusts. Trusts raised ex maleficio 189 Trusts under a power 209-223 Distinction between a trust and a power 209, 210 Power in trust, etc 210 As when the trustee has a discretion as to time, manner ana indi- viduals of a class, etc 210 But the trust itself imperative 210, 211 Trusts subject to a power, etc 212, 213 Where a desire is sulficiently indicative of a trust, etc 213 Rules for determining whether a trust has been created 214 1. Words imperative 214 2. Subject certain 214 3. Object certain 214 Powers in trust enlarged by statute, etc 218-282 Trusts for charitable purposes 232-278 Trusts for the benefit of creditors 278 Trusts raised for the payment of legacies 008 Trust for raising portions 317 When the interest vests in the cestui que trust, etc 318 No trust results, etc., where the fiduciary relation does not exist, 481 But between trustee and cestui que tr^st 146-481 And others iu confidential relations 481 TRUSTS FOR BENEFIT OF CREDITORS. Trusts for benefit of creditors 278-308 See Assignment for Benefit of Creditors. In England, at the death of an individual, his personal estate is vested by law in his personal representatives, for the benefit of his creditors 300 And he could not create a special trust to withdraw it from the administration of his executors 300 At common law, land not liable to simple contract debts 300 But otherwise by statute 301 Personal estate the primary fund 301 Order of marshaling assets in equity toward payment of debts 301 59 930 INDEX. PAUE. TRUSTS FOR BENEFIT OF CREDITORS— Con/inu^rf. Distinction between mortgage created by testator, and one charged on the estate when it came to him 302 Does not prevail in New York 302 Testator can cliange the order of administration and make real estate the primary fund 303 But intention must l>e clearly expressed 304 Court will not presume it 304, SOT. When real estate will be charged with payment of debts, legacies, etc 30.-) But specific devises not included 30G Where uncertainty as to the order of subjecting estates, etc., the trustee should apply to court, etc 30«) Where real estate charged for debts, personal still the primary fund 307 TRUSTEE. In contemplation of law the legal owner of the subject matter of a trust 1 Who may be a trustee 2, 32'') Equity never wants a trustt^'e 2 Will pursue the subject matter and decree the legal holder a trustee, when 2 Converts executor to trustee 90 Rules for determining same, etc KM) The king as royal trustee Itjti The State as trustee 320 Corporations may lie trustees 331 Cannot hold as trustee of real estate unless authorized by its constitution, etc 333 If ineai)able of holding, the trust not to fail 333 Towns, counties, hundreds, etc., capable of holding as trustees... 33o Supervisors of the county 33<> In general, corporations cannot hold lands in trust for purposes foreign to their institution 333 Voluntary associations or unincorporated companies as trustees, 337 Religious, literary and charitable societies, etc 337, 338, 339 Aliens may be trustees 340-340 Their right to take and hold property determined by tlie laws of the several States 340 Bankrupts and insolvents may be trustees 346 Idiots and lunatics as trustees 340 Feme covert as trustee 347 Infants .as trustees 348-350 How trustees may be constituted 350 INDEX. 931 PAQEt TRUSTEE— Con/tnwed. By an express appointment by the deed or will of the party creating the trust ^^" What instrument sufficient 350, 351, 354, 355 May be constituted by other instrument than that creating the trust 854 Owner of property may constitute himself trustee of the same 354 May be constituted by an appointment under a power contained in the trust instrument 3C6 Power should state with great particularity the cases or circum- stances under which the appointment to be made 356 And by whom to be made 357 If ambiguity as to the power, should apply to the court for direc- tion ••• 8^"^ New trustees, if appointment irregular, not authorized to exercise any of the powers , etc '^"" How powers of appointment to be executed 358, 369 Courts adhere with great strictness to the intention of the testator, in their interpretation of powers of appointment 3G1 Difference between being " incapable " and being '•' unfit " 362 Extending words added to power of appointment 303, 364 Rules as to power of appointment 3(»4-366 Where appointments of trustees are not made by those authorized, court appoints, etc ^^'' ' ^^^ When the exact number of trustees not essential 368-369 When discretion as to exact number 370, 371 All depends upon the intention of the donor of the power. . . 370, 371 Author of the power may reserve to himself the exercise of the power, etc "'' In such case, not exhausted by one appointment 373 When the donee of a power of appointment refuses to exercise it, must make application of the court 374 The trustee cannot exercise the power while before the court, 375, 380, 381 The instrument appointing new trustees does not of itself vest the property in them 8'" Manner of investing the newly appointed trustees with title to property, etc 8'" Trustees appointed by the Court of Chancery 376 When and under what circumstances such appointments to be made 3J6-378 Chancery has original and inherent jurisdiction 378, 379 And has supervision over the donee of the power 378 And may enforce or restrain the exercise of the power of appoint- ment etc 378-380 932 TNDKX. PAfiK TllUSTEE— Continued. In the appuintiiig of trustees, chancery is governed by what seenin needful for the management and execution of the trust .... 384-38-nG In Illinois 41f»-4-20 In Michigan 42-438 In California 438 In Maine 438-440 In Missouri 440-442 In Georgia 4 12, 443 In Vermont 443, 444 In Iowa 444,445 In Indiana 445-448 In Delaware 448, 440 In Florida 449, 450 In North Carolina 450, 451 In Ohio 451 , 454 In Texas 454 In Tennessee 454 , 457 In Virginia 457^ 460 In Minnesota 400, 4G4 In Alabama 4r4-4G7 In Rhode Island 407, 408 In New Hampshire 408, 470 In Oregon 470 In South Carolina 471 In Louisiana 471 , 473 In Maryland 473 Constitution of trustees by act of the Legislature 473 Constitution of trustees by implication and coastruction of law, 474, 475 INDEX. 935 PAOS. TRUSTEE— Continued. Trustees cannot purchase property of cestui que trust, unless, etc. 145, 481 Acceptance of the trust by 510 Disclaimer of the trust by 510 Trustees of the power of sale when they take legal estate, etc , 785, 786, 787 See also Powers of Sale. Incidents to the estate of 806 1. He holds for the benefit of cestui que trust 808 2. Not subject to his incumbrances, etc 806 Or dower of widows, or curtesy of husbands 806 Where he has doubt, he may ask advice from the court 817 Notice of incumbrance by cestui que trust, not to convey to him, etc 817 Cannot be compelled to divest himself of a part only of the trust estate 817.818 His act shall not prejudice the cestui que trust 818 Exception to rule 818 How far must warrant title 822, 823 The one beneficially interested, etc., must warrant, etc , . 824 Difference between, and a vendor 832 TRUSTEE AND CESTUI QUE TRUST, Constructive trusts, arising in transactions between them. . . . 146-149 When and how a trustee may purchase from his beneficiary 145 There must be no advantage of his situation as trustee 145 When the trustee sells to himself he combines the character of vendor and purchaser, and the sale is prima facie void.. . 146, 481 Trustee may purchase of cestui que trust 146 But the transaction must be fair, just, free from fraud, etc. . 146, 147 If transaction is questioned, and the trustee relies upon circum- stances to aid him. they must be made out beyond all question, 147, 149 The basis of the trustee's incapacity to purchase 147 If trustee wishes to purchase, he should apply to the court, etc. . 148 Where trustees have purchased the property of the cestui que trust, the sale may be set aside by the cestui que trust But this right must be exercised within a reasonable time 148 TRUSTEE, OFFICE OF. Its general properties, etc 636 1. When accepted, cannot be laid aside by the simple act of the trustee 536 How to be discharged 536 934 INDEX. PAOI. TRUSTEE, OFFICE OT— Continued. 2. Cannot l>e dclegatod to another fi:'? As to legal and moral necessity filJT, 039 When aid of others may be culled in WT, 638 Yet cannot delegate where trust is of a discretionary character .. . 539 3. Co-trustees form but one, etc 639 And must execute office jointly 639 But one may be the agent of the others ; 539, 540 But as such he acts as agent, etc., not as trustee 540 Exception as to trusts of a public character 540 Sometimes trust instrument provides that a less number than the whole may perform the duties, etc 541 4. On the death of a co-trustee, the joint office survives, etc 542 As authority coupled with an interest 542, 543 Office vests in those who accept 543 5. Not liable for the acts or defaults of a co-trustee 544 Not where they join in receipt, etc 544 But must prove his co-trustee received the money 546 Receipt presumptive evidence, etc 546 Reason why not liable for joining in receipt 646 When liable 646 Distinction between trustees and executors 647, 548, 575-677 Propriety of distinction questioned 548, 549 Basis of the distinction 547-549 May be liable for acts of co-trustee, when 550-562 6. Trustee shall derive no personal advantage from the adminis- tration of the office 663 Under what circumstances may purchase from cestui que trust ... 653 Basis of the rule, etc 55.3-555 Cannot buy a debt, etc., for less than due thereon, and collect more, etc ^^ In dealing with trust property, all advantage goes to the cestui que trust 655 Cannot act as factor, broker, etc 567 TRUSTEES, DUTIES AND LIABILITIES OF. Relation to each other joint tenants 659 Law of survivorship 559 How far heir at law, etc.. competent and bound to administer, etc. 560-565 Rules for determining whether all are bound by the acts of each, 56.S-567 1. Duty of trustee to protect the estate, etc., from the wrongful acts and omissions of co-trustees 668, 573, 574 Gross neglect of duty a breach of trust 570. 578 INDEX. "35 PAQE. TRUSTEES, DUTIES ATs'D LIABILITIES OY— Continued. 571 Instances of gross neglect When trust property may be committed exclusively to one of seve- ral trustees Where property taken from joint control, etc, liable 5/^2 But if reasonable necessity for it, otherwise 573 What constitutes a reasonable necessity y- • 5/3 When liable on joint receipt ^ ' J^^ Not exonerated by clause excusing, etc ■ • • • ^ Duty to reduce chose in action to possession ^o^; » Must deposit money kept for temporary purposes in a responsible ^^^ banking house ^ And not to his own account When robbed, etc., not liable ^^^ Personally liable for purchases, etc ^^^ Liabilities based upon their duties ^^ Debts due the testator, assets, etc ^^^ Duty to invest in proi>er securities If he neglects, the court will punish, etc ^ When he will be charged with interest ^^^ When chargeable with rent Duties of trustees in respect to real estate Oi» Investments by. Pg„ What moneys must be invested ^ Or he will be chargeable with interest — ^ Follow directions in trust instrument ' . ^^^ Then will not be responsible for loss !'" '' ' W ^ P„„„ to i„vc,.„„ ,.„n», or other unu.ua, — ^^ ^'^'^^^ ^^ construed ' ' To invest on ^^ good and sufficient security" should be such as court has been known to sanction " Guilty of crassa negligentia, charged with highest rateofinte^- rest . ' If he use the money in trade, etc., chargeable with interest with , 594 yearly rests • Entitled to reasonable time to make ^»« When chargeable with compound interest 593, 596 When he acts in good faith, court will deal leniently, etc 599 May keep small sums on hand for certain purposes, etc 600 Also other sums , ^'^ In what funds to invest, etc 601 No uniform rule in the United States 602, 603 General principles which govern 603, 604 Rule in Massachusetts less stringent than in most other States... 604 03G INDEX. PAOk. TRUSTEES, DUTIES AND LIABILITIES OF —Continued. When trust fund already invested on pc'r8onal or other unauthor- ized securities *j''» Trustee must act in tlie utmost good fuitii 15 How changed when made in pursuance of direction of testator 615 But no ciiange where cestui que trust not in esse 015 Liabilities of, in respect to remaindermen <>10 Must consult the interest of those in remainder Gl»;, (Jl9 A breach of trust to permit an advantage, etc 01(5 When cestui que trust for life may be let into possession.... 618, 019 In what cases to require an inventory, etc 620 When the party in remainder may apply to the court for security against the tenant for life 620 When trustee must convert into funds interests of a j)erishable nature 021 Liable if he permits the life tenant to receive the whole 021 Three classes of property of the testator's estate, etc 022 Kules for the trustee in respect to each class 022 Trustees of minors, etc 041-049 Trustees of married women, etc 04IMJ97 Liable for costs, when 097-715 " Trustee's costs," 713 Discretionary powers of 721-750 See DiscRETioNAUY Towers. Powers of sale by 7')f>-772 See PoWKRs OF Sale. Estate of, etc "72 When any legal estate vests in them 772 S«e Estate of Trustees. UNCERTAINTY. As to subject and object of trust , effect of 51 . 52 Quantum of subject at option of devisee, fatal to trust 52 Trusts for charity good, although objects are uncertain 239 Otherwise as to private trusts 239 UNDISPOSED RESIDUE. Rule as to an executor . 105 UNEXHAUSTED RESIDUUM. Unexhausted residuum creates a resulting trust, when 24-28 No trust results when the grantor intended to part with his entire beneficial interest 24-2o iNDEX. 937 UNEXHAUSTED HE&IDVUM— Continued. When any consideration has been paid no trusts will result, un- less a particular use is declared 26 Trust may be rebutted by a consideration of the relation of the parties 28 To raise a trust there must be the absence of both a consideration and a declaration of the use 28 UNINCORPORATED SOCIETIES. Unincorporated societies aa trustees 337. 338 Religious, literary and charitable 337 USES. How created at common law 3 By declared intent of parties, by transmutation of possession .... 3 By an agreement upon an efTectual consideration without transmu- tation of possession 4 At common law, when uses of land may be raised by parol 4 Evils the statute of uses sought to remedy 6 Design of the statute" 7 Uses not executed by statute, denominated trusts 8 Charitable uses 232-278 Pious uses, etc 248-251 VENDOR. Of real estate, etc., trustee, etc 76 491 Difference between a mere trustee and a vendor 832 VERMONT. Trusts administered as at common law 443 Trustees, etc., to give bonds 443 Neglect to do so deemed a refusal , etc 443 Trustees may resign , etc 444 How appointed 444 VIRGINIA. Deeds of trust of real estate must be recorded 457 Or they will be void as to creditors 457 Trust estates not to escheat because of the alienage of the trustee, 457 Trust estates liable to debts, etc., curtesy and dower 457 When and how courts may appoint trustees, etc 458 Their statute of uses and trusts, etc 459 Lands may be conveyed to benevolent associations 460 938 INDEX. TAGE. VIRTUTE OFFICII. Power given, coupled willi an interest, etc '-"^ Rule as to exercise, etc '•"'^ VOLUNTARY ASSOCIATIONS. Voluntary associations as trustees 337 Religious, literary and charitable associations corporations by prescription 337. 338 VOLUNTARY CONVEYANCE. Without declaration of trust, if miie3 not apply 1C7 Presumption stronger in respect to young heirs lf»8 Equity extends an anxious protection to this class 169 Condition upon which relief is granted 169 ^-O 3V ^ ' a r !(.'> ;IU< iilii , !' ■iiii Jllii