Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The $chool of Law of Cornell University 
 
 And Presented February 14, 1893 
 
 IN nenoRY of 
 
 JUDGE DOUQLA5S BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daugliter . ; 
 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
KD 148o!g58" ""''"""' '"'"'^ 
 
 3 1924 021 859 289 
 
The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924021859289 
 
A DIGEST 
 
 OF 
 
 THE PEINCIPLES OF 
 
 THE LAW OF TRUSTS 
 AND TRUSTEES. 
 
A DIGEST 
 
 OP 
 
 THE PEINCIPLES OF 
 
 THE LAW OF TKUSTS 
 AND TEUSTEES. 
 
 HENRY GODEFROI, 
 
 OF IiIITCOLN's ink, ESQ., BAEttlSTEE-AT-LAW. 
 JOIITT iUTHOE OF "gODEFEOI AND SHOETI Olf THE LAW OP EAILWAY COMPANIES.' 
 
 LONDON : 
 
 STEVENS & SONS, 119, CHANCERY LANE, 
 ILa&j Publi»l)£rB anO 330ofodlcvs. 
 1879. 
 
LONDON : 
 BRADBURY, AGNEW, & CO., PRINTERS, WHITEFRIARS. 
 
TO 
 THE EIGHT HONOURABLE 
 
 SIR GEOEGE JESSEL, KNIGHT, P.C. 
 
 MASTER OF THE ROLLS, 
 
 f l^b Maxh. is (bg ptmmion) Jtldtattit 
 
 WITH SENTIMENTS OF GREAT RESPECT BY 
 
 THE AUTHOR. 
 
PEEFACE. 
 
 It is intended in this work to place before the Profession, 
 in as concise a form as the nature of the subject permits, 
 the various principles which guide Courts of Equity in 
 dealing with what is probably the most important branch of 
 their jurisprudence. In adopting the title I have chosen, I 
 am aware that, scientifically speaking, the book is not a 
 digest in the sense in which that term is used by jurists; 
 but it is hoped that by the process of condensation, and by 
 the elimination of matters of comment and criticism, the 
 term may not be found inappropriate. A perfect digest in 
 the sense referred to, on so extensive a subject, would be 
 a work embracing so large an area, and involving matters of 
 detail so complex and diverse in character, that the object 
 of this book, as stated above, would in a, great measure be 
 defeated by seeking to supply such a work. 
 
 In collecting the materials required, I have been careful 
 to examine and collate the most important decisions to be 
 found in the Reports on the several parts of the subject, and 
 to record what I conceive to he the short results of the 
 authorities, referring, however, only to those which in my 
 
Vlll PREFACE. 
 
 opinion best illustrate those results. I am, of course, much 
 indebted to the numerous and excellent text-books which 
 deal with the subject of Trusts ; but I have used them rather 
 as guides to the Reports than as embodying the matter with 
 which I have dealt, and I have in every case formed, and I 
 trust accurately formed, my own conclusions throughout this 
 work. 
 
 By the aid of a very full Index I hope to have made the 
 book easy of reference to the practitioner. 
 
 I am indebted to Mr. C. J. Cooper, of Lincoln's Inn, for 
 the references in the Table of Cases to the contemporaneous 
 serial Reports. 
 
 H. G. 
 
 4, New Squaeb, Lincoln's Inn, 
 December, 1878. 
 
TABLE OF CONTENTS. 
 
 Preface . 
 
 Table op Contents 
 
 Table of Cases 
 
 PAGE 
 
 vii 
 
 ix 
 
 xvii 
 
 CHAPTER I. 
 
 Op vesting the Legal Estate in the Trustee 
 
 I. By will 
 
 When trustees do not take the legal estate 
 When trustees take the legal estate 
 Quantum of estate taken by the trustee . 
 When trustees take the fee . . , 
 When trustees take less than the fee 
 
 11. By deed 
 
 When trustees take the fee 
 
 1—9 
 1 
 2 
 3 
 4 
 5 
 
 CHAPTER II. 
 
 Op Disclaimer and Acceptance op the Trust . 10 — 14 
 
 Mode of disclaimer . . . . . . .10 
 
 Effect of disclaimer . .... 1 1 
 
 Acceptance . ... 12 
 
 CHAPTER III. 
 
 Op the Duty op Trustees to act jointly 
 
 15 
 
X CONTENTS. 
 
 CHAPTER IV. 
 
 PAGE 
 
 Op the Duty of Trustees to act personally . . 17 
 
 CHAPTER V. 
 
 Op the Devise op the Legal Estate in Trust and Mort- 
 gage Estates 21 — 24 
 
 Where trust estates do not pass . . . . . 21 
 
 Where trust estates pass ...... 22 
 
 Execution of the trust by a devisee of trust estates . 23 
 
 CHAPTER YI. 
 
 Of the Statute op Frauds as it affects Trusts . . 25 
 
 CHAPTER VII. 
 
 Op Voluntary Trusts by Transfer and Declaration 27 — 36 
 
 CHAPTER VIII. 
 
 Of Irrevocable and Revocable Trusts for Creditors 37 — 42 
 
 CHAPTER IX. 
 
 Of Executory Trusts . . .... 43 — 51 
 
 In marriage articles . . ... 44 — 47 
 
 In wills ......... 47 49 
 
 Frame of settlement directed 49 51 
 
 Trusts of chattels by reference to limitations of real 
 estate •■•■..... 51 
 
 CHAPTER X. 
 
 Op Precatory Trusts . • . . . 52 57 
 
CONTENTS. Jtl 
 
 CHAPTER XI. 
 
 PAGE 
 
 Of Resulting Trusts .... . . 58 — 71 
 
 From imperfect disposition . . . . . . 58 — 60 
 
 From want of consideration . . . . . . 60 
 
 On purchases in the name of a child or wife . . 61 — 66 
 
 On purchases in the name of strangers . . . 66 — 69 
 
 On joint purchases . . . . 69 — 71 
 
 CHAPTER XII. 
 
 Of Constructive Trusts 72 — 78 
 
 Renewal of leases by trustees and others . . . 73 
 
 by trustees and executors . 73, 7i 
 
 by tenant for life . . . . 75 
 
 by niortgagees . . . .75 
 
 by joint lessees . . . .76 
 
 by partners . . . . .76 
 
 generally . . . 77, 78 
 
 CHAPTER XIII. 
 
 Op Secret Trusts ... . 79 — 82 
 
 Secret charitable trusts . . . . . . 82 
 
 CHAPTER XIV. 
 
 Of Illegal Trusts ... ... 83 — 86 
 
 CHAPTER XV. 
 
 Of getting in the Trust Estate .... 87 — 97 
 
 wasting securities 91 
 
 reversions . . . . . . . 95 
 
 Adjustment of rights in residue between life-tenant and 
 remainderman . . . . . . . 95 — 97 
 
 CHAPTER XVI. 
 
 Of the Safety of Trust Property . . . 98 — ICO 
 
XU CONTENTS. 
 
 CHAPTER XVII. 
 
 PAGE 
 
 Op the general Discretion and Powers op Trosteeb 101 — 110 
 
 Execution of powers by the Court . . . . 103 
 
 Power to conseut to marriage . . . . .104 
 
 Power to build, repair, cut timber, &c. . . . . 105 
 
 Petitions for the opinion of the Court . . . . 108 
 
 CHAPTER XVIII. 
 
 Of Sales by Trustees . . • 111 — 130 
 Receipts of trustees . ..... 1 24 
 
 CHAPTER XIX. 
 
 Op Trusts for, and Power op. Investment . . 131 — 147 
 
 Indefinite or imperfect trust to invest . . . . 131 
 
 Exchequer Bills . .132 
 
 Statutory powers of investment . .■ . . 132 
 
 personal security . . . .136 
 
 stocks and shares . . . . 139 
 
 mortgages . ... 140 
 
 purchase of land . . . 144 
 
 CHAPTER XX. 
 
 Of Trusts and Powers relating to Renewable Lease- 
 holds 148 
 
 Apportionment of renewal fines and expenses . . . 150 
 
 CHAPTER XXI. 
 
 Op the Rule against Perpetuities as applicable to 
 Trusts — Trusts for Accumulation — Thellusson 
 Act .... 152—156 
 
CONTENTS. Xlll 
 
 CHAPTER XXII. 
 
 PAG IS 
 
 Of Trusts to secure Portions 157 — 170 
 
 160 
 162 
 164 
 165 
 166 
 167 
 168 
 
 Vesting of portions .... 
 
 Payment of portions ...... 
 
 Raising of portions ...... 
 
 Amount raisable ...... 
 
 Interest on, and maintenance out of, portions 
 Sinking of portions. ...... 
 
 Merger of portions . ... 
 
 Satisfaction ..... . . 169 
 
 CHAPTER XXni. 
 
 Op Trusts for, and Powers of, Maintenance and Ad- 
 vancement . . . . . . . 171 — 181 
 
 I. Maintenance . . . 171 — 178 
 
 II. Advancement .... . . 178—181 
 
 CHAPTER XXIV. 
 
 Of Purchases op the Trust Estate by the Trustee 182 — 195 
 Leases to trustees, &c. . . . . . .183 
 
 Mortgagees buying the equity of redemption . . . 186 
 Agents buying on their owli behalf . . .187 
 
 Solicitors buying from clients . . . . . . 189 
 
 Counsel buying property as to which they have advised 191 
 Recovery of the trust estate bought by trustees, &c. . 191 
 Confirmation of, and acquiescence in the purchase . . 193 
 
 CHAPTER XXV. 
 
 Op the Rule that Trustees may not profit by the 
 
 Trust — Allowances to Trustees . . . 196 — 202 
 
 CHAPTER XXVI. 
 
 Of the Retirement and Removal of Trustees and Ap- 
 pointment or New Trustees . . . 203 — 217 
 
XIV CONTENTS. 
 
 CHAPTER XXVII. 
 
 PAGE 
 
 Op the EFFEor of the Trustee's BA>fK[inPTCY . 218 — 220 
 
 CHAPTER XXVIII. 
 
 Of THE Tenant fjr Life's right to Possession . 221 — 2:3-5 
 
 CHAPTER XXIX. 
 
 Op the Conveyance by Tbustebs by order of Cestuis 
 
 Que Trust . ... . 223—225 
 
 CHAPTER XXX. 
 Of tub Custody of Title-Deeds . . . . 226 
 
 CHAPTER XXXI. 
 
 Of the Duty of Trustees to keep Accounts and furnish 
 
 Information . . . . • 228 
 
 CHAPTER XXXII. 
 
 Of Payment by Trustees to Cestuis Que Trust — Re- 
 leases ... ... 230—241 
 
 Releases .... . . . 286 
 
 Indemnity to trustees .... . . 237 
 
 Liability for co-trustees ... . 238 
 
 Voluntary and de facto trustees ... . 240 
 
 CHAPTER XXXIII. 
 
 Of the Rights of the Crown with reference to Trusts — - 
 
 Trusts of Foreign Property . . . 242 — 246 
 
CONTENTS. XV 
 
 CHAPTER XXXIV. 
 
 PAOE 
 
 Op the Trtot foe a Married Woman's separate use 247 — 266 
 
 I. The separate use . 247 
 
 Words which coustitute a separate use . . . 253 
 
 Power of disposition ...... 257 
 
 Liability for general engagements . . . . 259 
 
 Proceedings with regard to the separate estate . . 263 
 
 II. Restraint on anticipation . . . . . . 266 
 
 CHAPTER XXXV. 
 
 Op Dower and Curtesy in Equitable Estates . . 269 
 
 Dower .... . . . 269 
 
 Curtesy ... . .270 
 
 CHAPTER XXXVI. 
 
 Op Receivers ......... 272 
 
 Payment into Court by order ..... 274 
 
 Attachment for non-payment . . . . . 276 
 
 Compelling trustees to assert legal rights . . . 278 
 
 Injunctions against trustees . . . . . . 279 
 
 Ne exeat against trustees . . . . . .280 
 
 Criminal liability of trustees . . ... 281 
 
 Striking solicitor-trustee off the Rolls .... 282 
 
 CHAPTER XXXVII. 
 
 Of charging Trustees with interest for Breach op' 
 
 Trust . . 283—288 
 
 Compound interest or rests . ... 287 
 
 CHAPTER XXXVIIl. 
 
 Of notice to Trustees on Assignments of Equitable In- 
 terests . ... . . 288 292 
 
XVI CONTENTS. 
 
 CHAPTER XXXIX. 
 
 PAGE 
 
 Of following the Trust Estate into the hands of Pur- 
 chasers AND others 293 — 305 
 
 Purchase for value without notice . . . 293 299 
 Wrongful conversion of the trust estate— tracing trust 
 funds ......... 299-304 
 
 Following trust money into land .... 304, 305 
 
 CHAPTER XL. 
 
 Op the Enforcement of Trusts as affected by Statutes 
 
 of Limitation ...... 306 — 323 
 
 Bar of equitable claims . . . . . . . 312 
 
 Delay and acquiescence ^stale demands . . . 316 
 
 fraud 320 
 
 Account of rents and profits ..... 323 
 
 CHAPTER XLI. 
 
 Of specific Eblief for Breach of Trust — joint and 
 several liability — concurrence and acquiescence 
 op Cbstuis Que Trust 324—337 
 
 INDEX ... 339 
 
TABLE OF CASES. 
 
 PAOE 
 
 Aberdeen Eailwat Co. v. Blakie, 1 Maoq. 461 . . . .182 
 
 Town Council v. Aberdeen University, L. R. 2 App. Ca. 
 
 544 72, 74, 183, 196, 296 
 
 Acherley v. Aoherley, 7 B. P. C. 273 ... ... 25 
 
 Aclieson v. Fair, 2 C. & L. 208 . .... 74 
 
 Ackland v. Lutly, 9 A. & E. 879, 1 Per. & D. 636 ; 8 L. J. Q. B. 
 
 164 . .6 
 
 V. Pring, 2 M. & Gr. 937, 3 Scott, N. R. 297 ; 10 L. J. 
 
 C. P. 231 . .6 
 
 Ackroyd v. Aokroyd, 18 Eq. 313 . . . . . 92 
 
 V. Smithson, 1 W. & T. L. C. 949 ... 60 
 
 Acland v. Gaisford, 2 Mad. 32 . . ... 73 
 
 Acton V. Woodgate, 2 M. & K. 492 ... . . 41 
 
 Adair v. Shaw, 1 Sch. & L. 243 294, 330 
 
 Adams v. Adams, 6 Q. B. 860 ; 14 L. J. Q. B. 171 . . 8 
 
 V. Beck, 25 Bea. 648 .. . . . .158 
 
 V. Broke, 1 Y. & C. C. C. 627 119 
 
 V. Claxton, 4 Ves. 226 20 
 
 D. Clifton, 1 Russ. 297 . 17 
 
 «. Sworder, 2 D. J. & S. 44 ; 33 L. J. Ch. 318 ; 10 Jur. 
 
 N. S. 140 . . .... 188 
 
 V. Taunton, 5 Mad. 435 10, 12 
 
 Adamson v. Armitage, G. Coop. 283 ; 19 Ves. 416 . . . . 254 
 
 . Ex parte, 8 Ch. D. 807 220 
 
 Adderleyi). Clavering, 2B. C. C. 659; 2Coxl92 . . . 78,148 
 Addison v. Cox, 8 Ch. 79 ; 42 L. J. Ch. 291 ; 27 L. T. N. S. 45 ; 
 
 21 W. R. 180 . ... . . 290 
 
 Adey v. Arnold, 2 D. M. & G. 432 . . . . . 333 
 
 Adlington v. Cann, 3 Atk. 147 . ... 26, 81, 82, 243 
 
 Adye v. Feuilleteau, 3 Sw. 84 n. ; 1 Cox 24 ... 136 
 
 Agra Bank, Ex parte, 3 Ch. 555 ; 16 W. E. 79 . . 290, 291 
 
 h 
 
XVIU TABLE OF CASES. 
 
 PAGE 
 
 Aguilar v. Agiiilar, 5 Mad. 414 ... ... 263 
 
 Ainslie v. Harcourt, 28 Bea. 313 ; 30 L. J. Ch. 68fi . . 151 
 
 Alcook V. Sloper, 2 M. & K. 699 . ■ 92 
 
 Aldridge v. Westbiook, 4 Bea. 212 . .... 206 
 
 Alexander v. Alexander, Tudor R. P. C. 330 ... 20, 157 
 
 D. Mills, 6 Oh. 124 ; 40 L. J. Ch. 73 ; 24 L. T. N. S. 206 ; 
 
 19 W. B. 310 119, 214 
 
 V. Wellington, 2 R. & My. 35 242 
 
 V. Young, 6 Ha. 393 . . 267 
 
 Alison, Re, 8 Ch. D. 1 ; 47 L. J. Ch. 755 ; 38 L. T. N. S. 304 . 175 
 Allan V. Backhouse, 2 V. & B. 65 . . 151, 164 
 Allen V. Bewsey, 7 Ch. D. 453, 458 . ... 1 
 V. Coster, 1 Bea. 202 . . . . . . 175 
 
 V. Knight, 5 Hare, 272 
 
 Re, 8 Ch. 417 n. 
 
 V. Walker, L. R. 5 Ex. 187 
 
 Allhusen v. Whittell, 4 Ec^. 295 
 
 695 . 
 Alven V. Bond, Fl. & K. 196 . 
 Amand v. Bradbourne, 2 Ch. Ca. 
 
 297 
 . . 176 
 . 265 
 36 L. J. Ch. 929 ; 16 L. T. N. S. 
 
 . 95, 96, 97, 115 
 
 188 
 
 138 ... 202 
 
 Ambrose v. Ambrose, 1 P. W. 321 . . . 67 
 
 Ames V. Parkinson, 7 Bea. 379 .... .90 
 
 Anderson v. Anderson, 2 M. & K. 427 . . . . 265 
 
 Andrew v. Wrigley, 4 B. C. 0. 125 296, 313 
 
 Andrews v. Partington, 3 B. C. C. 60 101 
 
 Angell V. Dawson, 3 Y. & C. 308 . . . 101,132 
 
 Angelo, Re, 3 D. G. & Sm. 278 210 
 
 Angerstein, Ex parte, 9 Ch. 479 ; 43 L. J. Bank. 131 ; 30 L. T. N. 
 
 S. 446 ; 22 W. R. 581 230 
 
 V. Martin, T. & R. 232 95 
 
 Angler v. Stannard, 3 M. & K. 566 . . 122, 206, 223, 232 
 
 Angus V. Angus, West, 23 . . . ... 244 
 
 Annesley v. Ashurst, 3 P. W. 282 . . . 113 
 
 Anon. 31 Bea. 310 ... . . . 237 
 
 Carth. 15 . . . . . .69 
 
 4 T. Eq. R. 700 . . 204 
 
 6 Madd. 10 . . . . . 280 
 
 12 Mod. 560 . . . . . 18, 238 
 
 2 Ves. 182 .. . . . . . ' 251 
 
 3 Ves. 515 202 
 
 12 Ves. 4 .... 273 
 
 Antrobus v. Smith, 12 Ves. 39 29 34 
 
 Appleton V. Rowley, 8 Eq. 139 ; 38 L. J. Ch. 689 ; 20 L. T N S 
 
 600 .. . . . .....' 271 
 
TABLE OF CASES. 
 
 XIX 
 
 Apsey, Re, 3 B. C. C. 265 
 
 Arbuckle, Ee, 14 W. R. 535- ... 
 
 Archbold v. Scully, 9 H. L. C. 360 
 
 Archer v. Rorke, 7 I. Eq^. R. 478 .... 
 
 Ardill V. Savage, 1 Ir. Eq. R. 79 
 
 Arglasse v. Muschamp, 1 Vern. 75 . 
 
 Armitage v. Coates, 35 Bea. 1 
 
 Armory v. Delamirie, 1 Strange, 505 
 Armstrong v. Armstrong, 7 Eq. 518 ; 38 L. J. Ch. 463 
 N. S. 776 
 
 Re, 5 W. R. 448 
 
 Arnold v. Garner, 2 PJa. 231 
 
 V. Woodhams, 16 Eq. 29 ; 42 L. J. Ch. 578 ; 28 
 
 S. 351 ; 21 W. R. 694 . . . 
 
 Arrowsmith, Re, 4 Jiir. N. S. 1123 ; 6 W. R. 642 ; 31 L. 
 
 Arthur v. Clarkson, 35 Bea. 458 
 
 Ashhy V. Blackwell, 2 Ed. 299 . . t 
 
 Ashley, Re, 1 R. & M. 371 . 
 
 Ashton V. McDougall, 5 Bea. 56 .... 
 
 V. Wood, 3 Sm. & G. 436 ; 3 Jur. N. S. 1164 ; 30 
 
 Ashworth v. Outram, 5 Ch. D. 923 ; 46 L. J. Ch. 687 ; 
 
 N. S. 85 ; 25 W. R. 896 
 
 Askew V. Rooth, 17 Eq. 426 ; 43 L. J. Ch. 368 
 Astbury v. Beasley, W. N. 1869, 96 ... . 
 
 Aston V. Wood, 6 Eq. 419 
 
 Atoherley v. Vernon, 10 Mad. 518 
 Atkins V. Dehnege, 12 Ir. Eq. R. 1 . 
 Attorney-General •;;. AKord, 4 D. M. & G. 843 ; 3 W. 
 19 Jur. 361 ; 24 L. T. 265 . 
 
 V. Brickdale, 8 Bea. 223 
 
 • • V. Chapman, 3 Bea. 255 
 
 V. Christ's Hospital, 3 M. & K. 344 
 
 ■ V. Clack, 1 Bea. 467 . 
 
 V. Clarendon, 17 Ves. 500 . 
 
 V. Coventry, Mayor of, Seton, 500 
 
 V. Cuming, 2 Y. & C. C. C. ] 50 . 
 
 V. Dixie, 13 Ves. 519 . 
 
 V. Dudley, G. Coop. 146 . . 
 
 V. Elint, 4 Ha. 147 . . 
 
 V. Floyer, 2 Vern. 748 .. . 
 
 V. Geary, 3 Mer. 513 
 
 V. Gore, Barn. 145 .... 
 
 V. Kohler, 9 H. L.C. 655 ; 8 Jur. N. S. 
 
 V. Leicester, Corp. of, 7 Bea. 176 . 
 
 L. T. N. 
 
 T. 243 
 
 20 L. T. 
 
 PAGE 
 
 . 325 
 
 . 172 
 74, 313 
 
 . 247 
 
 . 207 
 
 . 244 
 
 . 267 
 
 . 100 
 
 57 
 208 
 197 
 
 266 
 22 
 34 
 
 235 
 
 177 
 253 
 23 
 
 L. T. 85 
 
 37 L. T. 
 
 247, 249, 250 
 
 . 251, 253 
 
 . 98 
 
 . . 59 
 
 . 256 
 
 . . 191 
 
 R. 200 ; 
 
 . 283, 285 
 
 . . 16 
 
 . 216 
 
 . 311 
 
 . 205 
 
 . . 185 
 
 215 
 
 216 
 
 . 185 
 
 192, 193, 195 
 
 . 307 
 
 . 213 
 
 . . 107 
 
 . 221 
 
 467 244, 283 
 
 . 19 
 
 b 2 
 
XX 
 
 TABLE OF CASES. 
 
 Attorney-General v. Lepine, 2 Swans. 181 
 
 V. Liverpool, Mayor of, 1 M. & Cr. 171 . 
 
 ■!;. Milner, 3 Atk. 115. 
 
 u. Mnnby, 1 Mer. 327 . . 
 
 V. Pamtlier, 3 B. C. C. 441 
 
 V. Pearson, 3 Mer. 408 
 
 V. Poulden, 3 Ha. 555 ... 
 
 V. Sands, Nels. 133. 
 
 V. Scott, 1 Ves. Sen. 413 . 
 
 • V. Sturge, 19 Bea. 597 ; 23 L. J. Ch. 495 
 
 V. Vigor, 8 Ves. 276 . 
 
 V. Ward, 6 Ha. 477 . . 
 
 V. Wilson, Cr. & Ph. 1 
 
 . V. Wyville, 28 Bea. 464 ... 
 
 Austen v. Taylor, 1 Ed. 361 . .... 
 
 Auster v. PoweU, 1 D. J. & Sm. 99 ; 9 Jur. N. S. 421 ; 8 
 
 N. S. 73 
 
 Austin V. Austin, 4 Ch. D. 223 ; 46 L. J. Ch. 92 ; 36 L. T. N. 
 
 25W. R. 346 
 
 Aveline v. Melliuish, 2 D. J. & Sm. 292 ; 10 Jur. N. S. 7E 
 
 W. E. 1020 ... .... 
 
 Aveling v. Knipe, 19 Ves. 445 .... 
 
 Avery v. Griffin, 6 Eq. 606 ; 18 L. T. N. S. 849 . 
 Ayerst v. Jenkins, 16 Eq. 275 ; 42 L. J. Ch. 690 ; 29 L. T. 
 
 126 ; 21 W. R. 878 . 
 Aylett V. Ashton, 1 M. & Cr. 105 .. . 
 Ayliffe v. Murray, 2 Atk. 58 ... 
 
 Aylmer v. Aylmer, 1 Moll. 87 . . . 
 
 PAGE 
 
 . 246 
 
 . 279 
 
 . 168 
 
 . 82 
 
 . 249 
 
 83, 207 
 
 . 154 
 
 . 152 
 
 20 
 
 . 246 
 
 . 21 
 
 . 216 
 
 . 330 
 
 . . 16 
 
 . 44, 48 
 
 L. T. 
 
 . 180 
 S.96; 
 
 218, 256 
 
 8; 12 
 
 . 241, 336 
 
 . 68, 69 
 
 . 114, 212 
 
 S. 
 
 68 
 263 
 201 
 284 
 
 N. 
 
 Baber, Re, 10 Eq. 554 ; 40 L. J. Ch. 144 ; 18 W. R. 1131 . 37, 38 
 
 Back V. Andrew, 2 Vern. 120 63, 66 
 
 Backhouse v. Middleton, 1 Ch. Ca. 173 164 
 
 Bacon v. Bacon, 5 Ves. 331 .... . . 19 
 
 V. Clark, 3 M. & Cr. 294 . . .... 99 
 
 V. ■ , 1 P. W. 478 . . . . . . 162 
 
 V. Proctor, T. & R. 31 155 
 
 Badcock, Ex parte, M. & Mac. 231 . . . 188 
 
 Bagenal v. Bagenal, 6 B. P. C. 81 . . . . . 166 
 
 Baggett V. Meux, 1 Ph. 627 . . . ... 266 
 
 Bagot V. Bagot, 10 L. J. Ch. 123 273 
 
 Bagshaw v. Spencer, 1 Ves. Sen. 142 5, 44 
 
 Bailey v. Ekins, 7 Ves. 232 .. . .... 126 
 
 V. Gould, 4 Y. & C. 221 . . . . . . 100 
 
TABLE OF CASES. XXI 
 
 VAGE 
 
 Baillie v. Baillie, 5 Eq. 175 . 245 
 
 V. McKewan, 35 Bea. 177 . . . 297, 298 
 
 Bain v. Sadler, 12 Eq. 570 ; 25 L. T. N. S. 202 ; 40 L. J. Ch. 791 ; 
 
 19 "W. E. 1077 38 
 
 Bainbridge v. Ashbiirton, 2 Y. & C. Ex. 347 22 
 
 Bainbrigge v. Blair, 1 Bea. 495 ; 3 Bea. 421 ; 8 Bea. 588 . . 198, 
 
 201, 209, 272, 274 
 Baker v. Carter, 1 Y. & C. 250 185 
 
 n. Martin, 5 Sim. 380; 8 Sim. 25 .... 200,314 
 
 V. Peck, 9 W. R. 472; 8 Jur. N. S. 25 ; 5 L. T. N. S. 467 . 1S3 
 
 Ee, 13 Eq. 168 ; 41 L. J. Ch. 162; 25 L. T. N. S. 783 ; 23 
 
 W. E. 303 . ... ... 249 
 
 V. Eead, 18 Bea. 398; 3 W. E. 118; 25 L. T. 18 . . 185, 195 
 
 V. Tucker, 3 H. L. C. 106 152 
 
 V. Wliite, 20 Eq. 166 ; 44 L. J. Ch. 651 ; 23 W. E. 670; 33 
 
 L. T. N. S. 347 . . . ... 1, 2, 3, 5 
 
 Baldwin v. Billingsley, 2 Vem. 539 . . . . 233 
 
 Balfour v. Welland, 16 Ves. 151 125 
 
 Ball V. Harris, 4 M. & Cr. 264 122, 123, 126, 128 
 
 Balsh V. Hyham, 2 P. W. 453 . 101 
 
 Bank of England Case, 3 D. P. & J. 645 . . . . . 71 
 
 Bank of Turkey v. Ottoman Co., 2 Eq. 366 ; 20 L. T. N. S. 220 276 
 Bankes v. Le Despencer, 11 Sim. 508 ... 49 
 
 Bankhead, Ee, 2 K. & J. 560 ; 4 W. E. 589 ; 20 Jur. N. S. 480 . 218 
 Banks v. Cartwright, 15 W. E. 417 . 229 
 
 Bardswell v. Bardswell, 9 Sim. 319 . . 55 
 
 Barff, Ex parte, D. G. 613 ... 336 
 
 Barker v. Greenwood, 4 M. & W. 421 ; 8 L. J. Ex. 5 . 3 
 
 ■ ■ V. Peile, 2 Dr. & Sm. 340 .. . . 205 
 
 ■ Ee, 1 Ch. D. 43 ; 45 L. J. Ch. 52 ; 24 W. E. 264 . 209 
 
 Barkley v. Eeay, 2 Ha. 308 . . 272 
 
 Barkworth v. Young, 4 Dr. 1 . 25 
 
 Barlow v. Grant, 1 Vem. 254 . .... 176, 180 
 
 Barnard ,;. Bagshaw, 3 D. J. & S. 355; 7 L. T. N. S. 544; 9 Jur. 
 
 N. S. 220 . . 17 
 
 Barnes v. Addy, 9 Ch. 244; 28 L. T. N. S. 398; 43 L. J. Ch. 513; 
 
 21 W. E. 324 ; 22 W. E. 505 . 72, 100, 213, 241, 303 
 
 V. Bond, 32 Bea. 653 .96 
 
 V. Grant, 26 L. J. Ch. 92 ; 2 Jur. N. S. 1127 ; 5 W. E. 14 ; 
 
 28 L. T. N. S. 78 ... . 53, 57 
 
 V. Eacster, 1 Y. & C. C. C. 401 . . . . 78 
 
 Barnewall, Ex parte, 6 D. M. & G. 795 ... 220, 325 
 
 Barrack v. McCulloch, 3 K. & J. 110; 5 W. E. 38; 26 L. J. Ch. 
 
 105 : 28 L. T. N. S. 218 ; 3 Jur. N. S. 180 . 248, 253 
 
XXll TABLE OF CASES. 
 
 PAGE 
 
 Barrett v. Hartley, 2 Eci. 789 ; 14 L. T. N. S. 474 ; 12 Jur. N. S. 
 
 426 . • 196, 201 
 
 Barrington v. Liddell, 2 D. M. & G. 497 ; 22 L. J. Ch. 1 ; 17 Jur. 
 
 241 ; 20 L. T. N. S. 133 . . . - 153, 156 
 
 v. O'Brien, 1 BaU.&Beatty, 180 166 
 
 ■ Re, IJ. &n. 142; 8 W. B. 577 . . 108,109 
 
 Barrow v. Greenougli, 3 Ves. 151 .... . 80, 81 
 
 V. Griffith, 11 Jur. N. S. 6 . . • -129 
 
 V. Wadkin, 24 Bea. 1 ; 5 W. R. 695 ; 3 Jur. N. S. 679 244 
 
 Barrs v. Fewkes, 2 H. & M. 60 . . . . . . 59 
 
 Barry, Ex parte, 17 Ec[. 113 . . 218 
 
 Bartholemew v. Meredith, 1 Vem. 276 . . . . . 160 
 
 Bartlett v. Bartlett, 4 Ha. 631 . . .... 275 
 
 V. Gillard, 3 Russ. 149 . . . 248 
 
 V. Pickersgill, 1 Ed. 516 . . . 67, 68 
 
 Bartley v. Bartley, 3 Drew, 385 215 
 
 . 180 
 
 183 
 . 67 
 
 194 
 . 192, 293 
 
 154 
 
 48, 49 
 
 . . 92 
 
 . 138 
 
 155 
 
 Barton v. Cook, 5 Ves. 461 
 
 V. Hassard, 3 Dr. & War. 461 . 
 
 V. Muir, L. E. 6 P. 0. 134 ; 44 L. J. Ch. 19 
 
 Barwell i;. Barwell, 34 Bea. 371 
 
 Bassett v. Nosworthy, 2 W. & T. L. C. 1 ; Finch. 102 
 
 Bassil V. Lester, 9 Ha. 177 
 
 Bastard v. Prohy, 2 Cox. 6 
 
 Bate V. Hooper, 5 D. M. & G. 338 ; 3 W. R. 639 
 
 Bateman v. Davis, 3 Mad. 98 . 
 
 V. Hotchkin, 10 Bea. 426 . 
 
 Bath V. Bradford, 2 Ves. Sen. 586 . . . . 101, 113 
 
 Batstone v. Salter, 19 Eq. 250 ; 10 Ch. 431 ; 33 L. T. N. S. 4 ; 44 
 
 L. J. Ch. 760; 23 W. R. 816 ... . 62,64,65 
 
 Battier, Ex parte. Buck, 426 . ... . .16 
 
 Baud V. Fardell, 7 D. M. & G. 628 ; 4 W. R. 40 ; 25 L. J. Ch. 21 ; 
 
 26 L. T. N. S. 83 ; 19 Jur. N. S. 1214 . . . 131, 132 
 
 Baugh V. Price, 1 G. Wils. 320 192, 194 
 
 Bayley v. Boulcott, 4 Russ. 345 . . .... 241 
 
 Re, 6 Ch. 590 ; 25 L. T. N. S. 249 ; 19 W. R. 789 . 157, 161 
 
 Baylies v. Baylies, 1 Coll. 547 ... . . . 222 
 
 Bayliss, Re, 17 Sim. 178 257 
 
 Baynard v. Woolley, 20 Bea. 583 . . . . 231, 332 
 
 Bayspoole v. Collins, 6 Ch. 228 ; 25 L. T. N. S. 282 ; 40 L. J. Ch. 
 
 289 ; 18 W. R. 730 . . . . . . . 36 
 
 Beal V. Beal, Pr. Ch. 405 167 
 
 Beale v. Beale, 1 P. W. 243 . . . . . " 159 
 
 Beale, Re, 4 Ch. D. 246 ; 46 L. J. Bank. 17; 35 L. T. N. S. 768 ; 
 
 25 W. R. 324 . . 137 
 
TABLE OF CASES. 
 
 XXlll 
 
 62, 65 
 
 T, 
 
 PAGE 
 
 255 
 146 
 311 
 
 273 
 
 Beales v. Spencer, 2 Y. & C. C. C. 651 . 
 
 Beauclerk v. AshlDurnham, 8 Jiea. 322 
 
 Beaufort v. Berty, 1 P. W. 704 
 
 Beaumont v. Beaumont, cited 3 Mer. 695 .... 
 
 V. Salisbury, 19 Bea. 198 ; 24 L. J. Cli. 94 ; 24 L 
 
 166 ; 3 Eq. Rep. 369 
 
 BecMord v. Beckford, Lofft. 490 
 
 V. K'emble, 1 S. & S. 7 
 
 V. Wade, 17 Ves. 87 . ... 
 
 Bective v. Hodgson, 10 H. L. C. 656 
 
 Beddoes v. Pugh, 26 Bea. 407 . . ... 
 
 Bedford v. Aberoorn, 1 M. & Or. 312 . 
 
 Beecber v. Major, 2 Dr. & Sm. 431 ; 13 W. K. 853 
 
 BeUby, Ex parte, 1 G. & J. 175 
 
 Beioley v. Carter, 4 CL. 230; 38 L. J. Ch. 92; 20 L. T. N 
 
 381 .. . 
 
 Belcbier, Ex parte, Amb. 218 ... . 
 
 Bellasis v. Compton, 2 Veri^. 294 
 
 ■ • Ee, 12 Eq. 218 
 
 • V. Uthwatt, 1 Atk. 426 
 
 Bellis, Ee, 5 Ch. D. 509 ; 46 L. J. Ch. 353 ; 36 L. T. N. S. 644 
 Benbow v. Davis, 11 Bea. 369 
 
 V. Townsend, 1 M. & K. 506 
 
 Bengough v. Walker, 15 Ves. 507 
 
 Bennet v. Davis, 2 P. W. 316 
 
 Bennett v. Bennett, 2 Dr. & Sm. 272 ; 34 L. J. Ch. 34 ; 13 W. E. 
 
 66 ; 11 L. T. N. S. 362 
 • V. Burgis, 5 Ha. 296 . 
 
 V. CoUey, 2 M. & K. 225 150, 151, 274 
 
 Ex parte, 10 Ves. 394 . . . . 182, 190, 191, 192 
 
 D. Houldsworth, 6 Ch. D. 671 ; 46 L. J. Ch. 646 ; 36 L. T. 
 
 N. S. 648 170 
 
 V. Lytton, 2 J. & H. 158 . . . . . 127 
 
 D. Wyndham, 23 Bea. 521 118,155,164 
 
 Benson v. Benson, 6 Sim. 126 250 
 
 Bentley v. Mackay, 15 Bea. 12 ; 10 W. K. 593, 873 ; 6 L. T. N. S. 
 
 632 ... 34 
 
 Beresford v. Beresford, 23 Bea. 292 . 327 
 
 Berkley, Ee, 9 Ch. 720 ; 43 L. J. Ch. 703 211 
 
 Bernard Ex parte, 6 Ir. Ch. E. 133 
 
 V. Minshidl, Johns. 276 . 
 
 V. Mountague, 1 Mer. 422 
 
 Berrington i). Evans, 1 Y. & C. 434 
 Berry v. Berry, 7 Ch. D. 657 ; 47 L. 
 
 9 
 65 
 
 245 
 313 
 154 
 233 
 50 
 66, 67 
 220 
 
 119 
 
 20, 98 
 
 61, 68 
 
 46 
 
 169 
 
 21 
 
 11 
 
 68 
 
 169 
 
 247 
 
 7 
 208 
 
 157 
 53, 56 
 . 161 
 . 314 
 
 J. Ch. 182 ; 26 W. E. 327 
 
XXLV TABLE OF CASES. 
 
 PAGE 
 Berry v. Briant, 2 Dr. & Sm. 1 ; 10 W. E. 242 ; 31 L. J. Ch. 327 ; 
 
 8 Jut. N. S. 69 ; 5 L. T. N. S. 818 . . . • • • ^^^ 
 Berwick, Mayor of, v. Murray, 7 D. M. & G. 519 ■ • ■ • ^85 
 
 Bestall V. Bunbury, 13 I. Ch. R. 318 259 
 
 BetheU v. Abraham, 17 Eq. 24 ; 43 L. J. Ch. 180 ; 29 L. T. N. S. 
 
 715; 31 L. T. N. S. 112 . . . 88,139,144 
 
 t,. . . 3 Ch. D. 590 n 1^^ 
 
 Bethune v. Kennedy, 1 M. & Cr. 114 92 
 
 Bevan v. Hahgood, IJ. & H. 222 ; 8 W. R. 703 . . • . 186 
 
 V. Waterhouse, 3 Ch. D. 752 ; 46 L. J. Ch. 331 . • . 139 
 
 Bibby v. Thompson, 32 Bea. 646 . . .... 57 
 
 Bick V. Motly, 2 M. & K. 312 219 
 
 Biddulph, Ex parte, 3 D. Q. & Sm. 587 219 
 
 0. WniJams, 1 Ch. D. 203 60 
 
 Biel, Re, 16 Eq. 577 ; 42 L. J. Ch. 556 ; 28 L. T. N. S. 835 ; 21 
 
 W. R. 808 -185 
 
 Bignold, Re, 7 Ch. 223 ; 41 L. J. Ch. 235 ; 26 L. T. N. S. 176 ; 21 
 
 W. R. 345 210 
 
 Billu. Cureton, 2M. &K. 511 41 
 
 Billingsley v. Critchet, 1 B. C. C. 268 . . . . . 174 
 
 Bindley v. Mulloney, 7 Eq. 343 ; 20 L. T. N. S. 263 ; 17 W. R. 510 84 
 
 Bingham v. Clanmorris, 2 Moll. 253 10 
 
 Binks V. Rokeby, 2 Mad. 227 121, 125 
 
 Binns v. Parr, 7 Ha. 288 275 
 
 Birch V. Blagrave, Amb. 264 85 
 
 V. Cropper, 2 D. G. & Sm. 255 212 
 
 Re, 17 Bea. 358 . . 104 
 
 V. Wade, 3 V. & B. 198 . . . 52, 56 
 
 Birch- WoKe v. Birch, 9 Eq. 683; 39 L. J. Ch. 345 ; 23 L. T. N. S. 
 
 216 ; 18 W. E. 594 313 
 
 Bird, Re, 16 Eq. 203 ; 28 L. T. N. S. 658 ; 21 W. R. 725 19, 100, 241 
 Birks V. Micklethwait, 33 Bea. 409 ; 34 L. J. Ch. 362 ; 10 Jur. N. S. 
 
 302 . . . ... .332 
 
 Birls V. Betty, 6 Mad. 90 331 
 
 Birmingham Blue Coat School, Re, 1 Eq. 632 134 
 
 Biron v. Mount, 24 Bea. 642 ; 27 L. J. Ck. 191 ; 4 Jur. N. S. 43 ; 
 
 30 L. T. 344 . . . . . . . 37, 38 
 
 Biscoe V. Perkins, 1 V. & B. 491 . . . .295 
 
 Bishop V. Bishop, 9 W. R. 549 ; 4 L. T. N. S. 351) . . 135 
 
 Ex parte, 8 Ch. 718 ; 42 L. J. Bank. 107 ; 28 L. T. N. S. 
 
 862 ; 21 W. R. 716 220 
 
 V. Wall, 3 Ch. D. 194 ; 45 L. J. Ch. 773 ; 25 W. R. 93 . 258 
 
 Bizzey v. Plight, 24 W. R. 957 . 30 
 
 Blacliburn v. Stables, 2 V. & B. 367 47 
 
TABLE OF CASES. 
 
 XXV 
 
 E. 608 
 
 Blaoklow V. Laws, 2 Ha. 40 ... . 
 Blagrave v. Blagrave, 4Excli. 550 ; 19 L. J. Ex. 414 
 Blagrove v. Hancock, 16 Sim. 371 
 Blair v. Nugent, 3 J. & L. 660 
 
 V. Ormond, 1 D. G. & Sm. 428 . 
 
 Blake v. Blake, 1 Cox. 266 . . . . 
 
 V. 18 W. R. 944 . 
 
 V. Bunbury, 1 Ves. Jur. 514 
 
 V. Foster, 8 T. R. 487 . . . 
 
 Blakely v. Brady, 2 Dr. & Walsh. 311 . 
 
 Blanchard, Re, 3 D. P. & J. 131 ; 30 L. J. Ch. 516 
 
 Blannu Bell, 2 D. M. & G. 775 . 
 
 Bleazard v. Whalley, 2 Eq. R., Ft. II., 1095 ; 2 W, 
 
 Blewett V. MiUett, 7 B. P. C. 367 . 
 
 Blod-vvell V. Edwards, Cro. Bliz. 509 . 
 
 Blogg V. Johnson, 2 Ch. 228 ; 36 L. J. Ch. 859 
 
 306 ; 15 W. E. 626 
 
 Blomfleld v. Eyre, 8 Bea. 250 . 
 
 Bloye, Re, 1 Macn. & G. 488 
 
 Blue V. Marshall, 3 P. W. 381 . 
 
 Boddington v. Langford, 15 Ir. Ch. R. 558 n. 
 
 Boddy V. Dawes, 1 Keen. 362 . 
 
 Bodenham v. Hoskyns, 2 D. M. & G. 903 
 
 Bold V. Hutchinson, 5 D. M. & G. 558 ; 4 W. R. 3 ; 27 L. T. 
 
 179 ; 20 Jur. 97 . . ... 
 
 Bolton V. Stannard, 4 Jur. N. S. 576 ; 6 W. R. 570 . 
 
 Bond's case, 2 Ch. Ca. 165 
 
 Bone V. Cook, McClel. 168 
 
 V. Pollard, 24 Bea. 282 . . 
 
 Bonney v. Ridgard, 1 Cox. 145 ... 
 Bonsor v. Kinnear, 2 Giff. 195 ; 2 L. T. N. 8. 345 
 Booth V. Booth, 1 Bea. 125 ; 8 L. J. Ch. 39 
 
 V. Coulton, 7 Jur. N. S. 207 ; 30 L. J. Ch. 
 
 330 ; 3 L. T. N. S. 770 . 
 
 Ex parte, Mont. 248 
 
 V. Leyoestej, 3 M. & Cr. 459 . 
 
 Bootle V. Blundell, 19 Ves. 528 
 
 Boschetti v. Power, 8 Bea. 98 275 
 
 Bostock u Floyer, 1 Eq. 26 ; 35 L. J. Ch. 23 ; 13 L. T. N. S. 489 ; 
 
 11 Jur. N. S. 962 ; 14 W. R. 120 . . 17, 19, 98, 142, 235 
 Boughton V. James, 1 H. L. C. 406 . . . . . 152 
 
 Boulton V. Beard, 3 D. M. & G. 611 232 
 
 . Ex parte, 1 D. & J. 163 289 
 
 Bourdillon v. Roche, 27 L. J. Ch. 681 ; 6 W. R. 61B ; 31 L. T. 264 325 
 
 PAGE 
 
 116, 256 
 
 . 5,6 
 
 . 49 
 
 . 307 
 
 . . 317 
 
 . 77 
 
 . 246 
 
 . 222 
 
 . . 221 
 
 . 34 
 
 . . 215 
 
 . 92 
 
 . . 106 
 
 . 73 
 
 . . 83 
 
 16 L. T. N. S. 
 
 . 284 
 
 311, 323 
 
 . 186 
 
 . 89, 102 
 
 . 188 
 
 . 173 
 
 . 302 
 
 N.S. 
 
 45, 46 
 
 . . 128 
 
 167 
 
 238 
 
 . 63 
 
 . . 313 
 
 . 52 
 
 . 13, 18, 239, 325 
 
 378 ; 9 W. R. 
 
 . . 92 
 . 17 
 . 284 
 . 164 
 
XXVI 
 
 TABLE OF CASES. 
 
 Ch. U8 ; 
 10 
 
 . Cli. 188 
 
 18 L. 
 . 73, 
 
 Bourne v. Mole, 8 Bea. 177 
 
 Eoursot V. Savage, 2 Eq. 134 ; 35 L. J. Ch. 627 
 Bousfield V. Hodges, 33 Bea. 90 . . . 
 Bovey v. Smitli, 1 Vern. 60 . . . . 
 
 Bowden v. Bowden, 17 Sim. 65 
 Bowes V. City of Toronto, 11 Moo. P. C. 463 . 
 ■ Tj. East London Waterworks Co., 3 Mad. 375 
 
 V. Strathmore, 8 Jur. 92 ... 
 
 Bowles V. Stewart, 1 Sch. & L. 230 
 Box, Re, 11 W. R. 945 . . . 
 Boyoe v. CorbaUy, LI. & G. t. Plmik. 102 
 
 Re, I. R. 1 Eq. 45 ; 15 W. R. 827 
 
 Boycot V. Cotton, 1 Atk. 553 
 
 Boycott, Re, 5 "W. R. 15 ; 28 L. J. Ch. 120 
 
 Boyd V. Boyd, 4 Eq. 305 .. . 
 
 ■ Re, 42 L. J. Ch. 506 
 
 Boys 1). Boys, 28 Bea. 436 .. . 
 Bradby v. Whitchurch, W. N. (1868) 81 . 
 Bradford v. Brownjohn, 3 Ch. 711 ; 37 L. J 
 N. S. 388 ; 16 W. R. 1178 ; 38 L. J. Ch, 
 Bradley v. Hughes, 8 Sim. 149 
 Bradwell v. Catchpool, 3 Swans. 78 n. 
 Brandling v. Plummer, 6 W. R. 118 ; 27 L. J 
 Brandon v. Robinson, 18 Ves. 429 
 Brasier v. Hudson, 9 Sim. 1 . 
 Brassey v. Chalmers, 4 D. M. & G. 528 
 Brathwaite v. Brathwaite, 1 Vern. 334 
 Bray v. West, 9 Sim. 429 . 
 Braybrooke v. Inskip, 8 Ves. 417 . 
 Breadalbane v. Chandos, 2 M. & Or. 711 
 
 Breary, Re, W. N., 1873, 48 
 
 Breedou v. Breedon, 1 R. & M. 413 
 
 Breeds, Re, 1 Ch. D. 228 ; 45 L. J. Ch. 191 ; 24 W. R. 200 
 
 171, 172, 
 
 Brenan v. Brenan, I. R. Eq. 266 
 
 BrentnaU, Re, W. N., 1872, 77 
 
 Brereton v. Hutchinson, 2 Ir. Ch. R. 648 ; 3 Ir. Ch. R. 361 
 
 BretteU, Ex parte, 6 Ves. 577 
 
 Brewster v. Angell, 1 J. & W. 628 . . 
 
 Brice v. Stokes, 11 Ves. 319 114, 238, 
 
 Bridge v. Beadon, 3 Eq. 664 ; 36 L. J. Ch. 351 • 15 W. R. 527 
 
 i). Bridge, 16 Bea. 315 . . . . 
 
 V. Brown, 2 Y. & C. C. C. 181 
 
 Bridges v. Longman, 24 Bea. 27 
 
 PAGE 
 
 . 275 
 
 297, 298 
 
 112, 113 
 
 296 
 
 92 
 
 287 
 
 323 
 
 106 
 
 78 
 
 109 
 
 12, 104 
 
 . 135 
 
 167 
 
 212 
 
 . 180 
 
 . 134 
 
 . 92 
 
 . 102 
 
 T. 
 
 150, 151 
 
 . 250 
 
 . 18 
 
 . 41 
 
 84 
 
 . 125 
 
 . 123 
 
 159, 160 
 
 11 
 
 21,22 
 
 45, 245 
 
 203, 212 
 
 . 125 
 
 175, 180 
 . 51 
 . 211 
 314 
 . 22 
 . 50 
 
 239, 334 
 
 292 
 
 . 35 
 
 . 176 
 
 . 123 
 
TABLE OF CASES. XXVll 
 
 PAGE 
 
 Bridgman v. Gill, 24 Bea. 302 3CI2 
 
 Re, 1 Dr. & Sm. 164 ; 8 W. R. 598 ; 2 L. T. N. S. 560 209 
 
 Briggs V. Penny, 3 Macn. & G. 546 52, 53, 56 
 
 Bright V. Legerton, 2 D. P. & J. 606 ; 9 W. R. 239 ; 30 L. J. Cli. 
 
 338; 7 Jur. N. S. 559; 3L. T. N. S. 713 . . . 317 
 
 Bristow V. Whitmore, 4 K. & J. 743 . . . . . . 234 
 
 British Mutual Go. v. Smart, 10 Ch. 567 335 
 
 Brittlebank v. Goodwin, 5 Eq. 545 ; 37 L. J. Ch. 377 ; 16 W. R. 
 
 696 88, 314 
 
 Britton v. Twining, 3 Mer. 176 .47 
 
 Broadhurst v. Balguy, 1 Y. & 0. C. C. 16 . . . . . 240 
 
 Broadmead v. Wood, 1 B. C. C. 77 162 
 
 Brocksopp V. Barnes, 5 Mad. 90 . . . . 201 
 
 Brodie v. Barry, 3 Mer. 695 . 273 
 
 Brome v. Berkley, 6 B. P. C. 108 163 
 
 Bromley v. Kelly, 39 L. J. Ch. 274 ; 18 W. R. 374 .. . 143 
 Brook V. Brook, 1 Bea. 531 . . . . . 212 
 
 Brooke v. Brooke, 25 Bea. 342 ; 4 Jur. N. S. 472 ; 31 L. T. 244 . 253 
 
 ■ V. Haymes, 6 Eq. 25 12, 13, 14 
 
 Brooker v. Brooker, 3 Sm. & G. 475 ; 5 W. R. 382 ; 26 L. J. Ch. 
 
 411 ; 28 L. T. N. S. 354 ; 3 Jur. N. S. 381 . . . . 328 
 
 Brookman v. Hales, 2 V. & B. 45 75 
 
 Brophy v. Bellamy, 8 Ch. 798 ; 43 L. J. Ch. 183 ; 29 L. T. N. S. 
 
 380 173 
 
 Brotherton v. Hatt, 2 Vern. 574 297 
 
 Broughton v. Broughton, 5 D. M. & G. 160 . . . . 197, 201 
 Broun v. Kennedy, 4 D. J. & Sm. 217 . . . . 191 
 Browell v. Reid, 1 Ha. 434 ; 11 L. J. Ch. 272 ... 11, 273 
 Brown v. Adams, 4 Ch. 764 ; 21 L. T. N. S. 71 ; 17 "W. R. 777 99, 302 
 ■ V. Bamford, 1 Ph. 620 ... . . . 266 
 
 V. De Tastet, Jac. 284 . ... 198 
 
 V. GeUatly, 2 Ch. 751 ; 15 W. R. 1188 . . 93, 94, 96 
 
 V. Higgs, 4 Ves. 708 ; 8 Ves. 561 ; 18 Ves. 192 . 54, 57, 103 
 
 V. How, Bam. 357 221 
 
 ■ • V. Litton, 1 P. "W. 139 . . . . . .199 
 
 Re, 10 Eq. 349 ; 39 L. J. Ch. 845 ... 116, 117 
 
 Re, 5 Eq. 88 ; 37 L. J. Ch. 171 .. . . 290 
 
 V. Temperley, 3 Russ. 263 . . . . 171 
 
 V. Whiteway, 8 Ha. 145 3, 7 
 
 Brown and Sibly, Re, 3 Ch. D. 156 ; 35 L. T. N. S. 305 ; 24 W. 
 
 R. 782 .... 21 
 
 Browne v. Butter, 24 Bea. 159 100 
 
 V. Cavendish, 1 J. & L. 637 35 
 
 V. Cross, 14 Bea. 105 ... . . . 320 
 
XXVIU 
 
 TABLE OP CASES. 
 
 PAGE 
 
 Browne v. Paul], 1 Sm. N. S. 92 177 
 
 V. Savage, 4 Drew. 640 ; 7 W. E. 571 . . • • 290 
 
 11. Stoughton, 14 Sim. 369 152 
 
 Bruen v. Bruen, 2 Vem. 438 1 60 
 
 Bruin v. Knott, 1 Ph. 572 . . . . . 176, 177 
 
 238, 239 
 
 . 105 
 
 . 154 
 
 12, 334 
 
 . 83, 242 
 
 . 118 
 
 174 
 
 27 L. T. N. S. 
 
 . 141 
 . 209 
 
 Brumridge v. Brumiidge, 27 Bea. 5 . 
 Brunskill v. Caird, 16 Eq. 493 ; 21 W. E. 943 
 Bryan v. Collins, 16 Bea. 17 ... . 
 Buckeridge v. Glasse, Cr. & Ph. 103 ; 10 L. J. Ch 
 Buckhurst Peerage case, L. E. 2 App. Ca. 1 
 Buckley v. Howell, 29 Bea. 546 . 
 Buckworth v. Buckworth, 1 Cox, 80 . 
 Budge V. Gummow, 7 Ch. 719 ; 42 L. J. Ch. 22 
 
 666 ; 20 W. R. 1022 
 Buffery, Ex parte, 2 D. & C. 577 
 Bugg, Ex parte, 2 Dr. & Sm. 452 . 
 Buggins V. Yates, 9 Mod. 122 . 
 Bulkeley v. EgUnton, 1 Jur. N. S. 994 . 
 Bullock V. Wheatley, 1 Coll. 130 .. . 
 BuUpin V. Clarke, 17 Ves. 365 
 Bulteel V. Abinger, 6 Jur. 410 . 
 Bunbury v. Bunbury, 1 Bea. 318 . 
 Buun's case, 2 D. F. & J. 300 . 
 Burden v. Burden, cited 1 J. & W. 135 
 Burdick v. Garrick, 5 Ch. 233 ; 39 L. J. Ch. 661 
 Burgess v. Wheate, 1 Ed. 177, 196 
 Burke v. Jones, 2 V. & B. 275 . 
 Bumell, Ex parte, 7 Jur. 116 
 Bumey v. Macdonald, 15 Sim. 6 
 Burridge v. Row, 1 Y. & C. C. C. 183 
 Burrough v. Philcox, 5 M. & Cr. 92 . 
 Burroughs v. M'Creight, 1 J. & L. 290 
 Burrowes v. Gore, 6 H. L. C. 907 ; 6 W. E. 699 
 
 134 
 
 . 140 
 
 55, 58, 59 
 
 11 
 
 . 262 
 
 111, 114 
 
 245, 246 
 
 . . 140 
 
 . 286 
 
 284, 285, 287, 309 
 
 . 243, 269, 271 
 
 39 
 
 188 
 
 81 
 
 . 327 
 
 103 
 
 . 315 
 
 308, 311, 315 
 
 Burrows v. WaUs, 5 D. M. & G. 233 ; 3 W. E. 327 ; 25 L. T. 18 . 229 
 
 Burt V. Dennet, 2 B. C. C. 225 . 18 
 
 • Re, 1 Dr. 319 . . . 20 
 
 V. Sturt, 10 Ha. 415 .... 156 
 
 Burton v. Hastings, Gilb. 113 ... ... 45 
 
 • V. Mount, 2 D. G. & Sm. 383 . . . 92 
 
 V . Sturgeon, 2 Ch. D. 318 ; 45 L. J. Ch. 633 ; 34 L. T. N. 
 
 S. 706 ; 18 W. R. 480 . . . . . . 235 
 
 Bush V. Shipman, 14 Sim. 239 . .... 38 
 
 Bushby v. Munday, 5 Mad. 307 . . . 245 
 
 Butcher v. Butcher, 1 V. & B. 79 . . . 157 
 
TABLE OF CASES. XXIX 
 
 PAGE 
 
 Butler V. Butler, 7 Ch. D. 116 ; 46 L. J. Ch. 548 . . . 144, 332 
 
 V. Carter, 5 Eq. 276; 37 L. J. Ch. 270; 18 L. T. N. S. 11 ; 
 
 16 W. R. 388 88, 320, 322, 333 
 
 ■ ■ V. Cumpston, 7 Eq. 16 ; 38 L. J. Ch. 35 ; 19 L. T. N. S. 
 
 274; 17W. E. 24 262 
 
 V. Duncomh, 1 P. W. 448 163, 166 
 
 V. Plunkett, 1 J. & H. 441 290 
 
 Buttanshaw v. Martin, Johns. 89 ; 33 L. T. 300 ; 5 Jur. N. S. 647 224, 
 
 251 
 
 Butterfield, Ex parte, 1 De G. 319 90, 137 
 
 Buxton ■!;. Buxton, 1 M. & Or. 80 . . . 88, 89, 114, 205 
 
 Byrohall v. Bradford, 6 Madd. 240 13 
 
 Byrne v. Norcott, 13 Bea. 336 87, 337 
 
 Byron v. Cooper, 11 CI. & F. 556 316 
 
 Cadett v. Earle, 5 Ch. D. 710 ; 46 L. J. Ch. 798 . . . . 139 
 Cadogan v. Essex, 2 Drew. 227 ; 2 W. R. 313 ; 23 L. J. Ch. 487 ; 
 
 2 Eq. Eep. 551 146 
 
 Cafe V. Bent, 3 Ha. 245 ; 5 Ha. 24 . . . . 92, 93, 205, 208 
 
 Caflfrey v. Darby, 6 Ves. 488 88, 325, 328 
 
 Caldecott v. Brown, 2 Ha. 144 106 
 
 V. Caldecott, 1 Y. & C. C. C. 312, 737 . . 93, 95, 97 
 
 V. 4 Mad. 189 132 
 
 Caldwell, Re, 13 Eq. 188; 20 W. R. 363 .... 219,289 
 Callendar v. Teasdale, 3 W. R. 289 ; 3 Eq. Rep. 513 ; 24 L. T. 322 234 
 
 CaUow V. Howie, 1 D. G. & Sm. 531 262 
 
 Camden v. Anderson, 5 T. R. 709 67 
 
 Camoys v. Best, 19 Bea. 414 209 
 
 Campbell v. Home, 1 Y & C. C. C. 664 . . . . 224, 233 
 
 Re, 31 Bea. 176 ; 31 L. J. Ch. 821 ; 8 Jur. N. S. 1199 ; 
 
 low. R. 640 211,212 
 
 ■ • V. Walker, 5 Ves. 678; 13 Ves. 601 184, 191, 192, 193, 195, 
 
 317 
 
 Candler v. Tillett, 22 Bea. 257 240 
 
 Cane v. Allen, 2 Dow. 289 190 
 
 Caney v. Bond, 6 Bea. 486 .. . .... 87 
 
 Cannings v. Flower, 7 Sim. 523 17^ 
 
 Cantley, Re, 17 Jur. 124 .. . ... 21, 22 
 
 Cape V. Cape, 2 Y. & C. Ex. 543 256 
 
 Cardross, Re, 7 Ch. D. 728 251 
 
 Carlisle v. Berkley, Amb. 599 274 
 
 Carlyon v. Truscott, 20 Eq. 348 ; 44 L. J. 186 ; 32 L. T. N. S. 50 ; 
 
 23 W. R. 302 126, 127 
 
XXX 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Carne v. Long, 2 D. F. & J. 75 ; 29 L. J. Ch. 503 ; 8 W. R. 570 ; 
 
 6 Jur. N. S. 639 ; 2 L. T. N. S. 552 153 
 
 Carpenter, Re, Kay, 418 . . ... 210, 216 
 
 Carr v. Erroll, 14 Ves. 478 
 
 V. Living, 28 Bea. 647 ; 30 Bea. 474 
 
 Carter v. Bamadiston, 1 P. W. 505 
 
 V. Carter, 3 K. & J. 617 ; 27 L. J. Ch. 74 ; 4 Jur. N. S. 63 ; 
 
 30 L. T. 349 294, 297 
 
 51 
 
 175 
 
 7 
 
 384 ; 36 L. 
 
 194, 195, 
 
 313, 
 
 215 
 
 84 
 
 2 
 
 53, 188 
 269 
 271 
 152 
 
 18, 100 
 308 
 237 
 
 T. N. S, 
 
 £6, 112 
 . 26 
 249 
 . 68 
 244 
 . 117 
 172 
 . 35 
 157 
 . 236 
 99 
 
 317, 318, 321 
 
 80 
 
 45 
 
 92 
 
 199 
 
 176 
 
 81 
 191 
 
 V. Green, 3 K. & J. 603 
 
 V. Palmer, 8 CI. & F. 657 
 
 V. Sebright, 26 Bea. 376 ; 28 L. J. Ch. 411 ; 7 W. R. 225 
 
 32 L. T. 348 ; 5 Jur. N. S. 259 . 
 Cartwright v. Cartwright, 3 D. M. & G. 982 . . . 
 
 Carwardine v. Carwardine, 1 Ed. 36 .... . 
 Gary v. Gary, 2 Soh. & L. 173 . 
 Casbome v. Scarfe, 1 Atk. 605 . 
 Gasbume v. Inglis, 2 J. & W. 194 . 
 Case V. Drosier, 2 Keen, 764 ; 5 M. & Cr. 246 
 Castle V. Warland, 32 Bea. 660 ; 2 N. R. 433 
 Cater v. Croydon Canal Co., 4 Y. & G. 405 
 
 Re, 25 Bea. 366 . 
 
 CatUng V. King, 5 Ch. D. 660 ; 46 L. J. Ch 
 
 526 ; 25 W. R. 550 . 
 Caton V. Gaton, L. R. 2 H. L. 127 . 
 
 V. Rideout, 1 Macn. & G. 601 . 
 
 (^ave V. Mackenzie, 46 L. J. Ch. 564 
 
 V. Roberts, 8 Sim. 214 
 
 Cavendish v. Cavendish, 10 Ch. 319 
 
 ■ V. Mercer, 5 Ves. 195 n. . 
 
 Cecil V. Butcher, 2 J. & W. 565 . 
 Chadwick v. Doleman, 2 Vern. 527 . 
 
 1). Heatley, 2 Coll. 137 . 
 
 Ghallen v. Shippam, 4 Ha. 557 . 
 Chalmer v. Bradley, IJ. & W. 51 . 
 Chamberlain v. Chamberlain, 1 Gh. Ca. 256 
 Chambers v. Chambers, Fitzgibbon, 127 
 
 V. • 15 Sim. 183 . 
 
 V. Davidson, L. R. 1 P. C. 296 
 
 Ex parte, 1 R. & M. 577 . 
 
 , V. Goldwin, 5 Ves. 834 ; 9 Ves. 254 ; 11 Ves. 1 
 
 173, 199, 201, 310 
 
 V. Howell, 11 Bea. 6 116, 188 
 
 . v. Minchin, 7 Ves. 185 17, 18, 238 
 
 V. Smith, L, R. 3 App. Ca. 795 . . . . 84, 231 
 
TABLE OF CASES. XXXI 
 
 PAGE 
 
 Champion v. Rigliy, 1 E. c& My. 539 . . . . 193, 194, 195 
 
 Champney t). Champney, 10 Mod. 315 .... . 163 
 
 Chandler, Ee, 22 Bea. 253 .282 
 
 Chaplin v. Chaplin, 3 P. W. 245 . . . . .169 
 
 Ex parte, 3 Y. & C. 397 . . . . . . 132 
 
 ■ V. Young, 33 Bea. 414 198 
 
 Charitable Donations, Commissioners of, v. Wybrants, J. & L. 182 
 
 126, 311 
 Charlton v. Durham, 4 Ch. 433 ; 20 L. T. N. S. 467 ; 17 W. E. 995 ; 
 
 38 L. J. Ch. 183 19, 139 
 
 ■ V. Eendall, 11 Ha. 296 51 
 
 Charter v. Trevelyan, 11 01. & F. 714 . . 187, 195, 322 
 
 Chattook V. MuUer, 8 Ch. D. 177 .68 
 
 Chawner, Re, 8 Eq. 569 ; 38 L. J. Ch. 726 ; 22 L. T. N. S. 262 
 
 109, 123 
 
 Chedworth v. Edwards, 8 Ves. 46 99, 301 
 
 Chertsey Market case, 6 Price, 279 279 
 
 Chetham v. Hoaie, 9 Eq. 571 ; 39 L. J. Ch. 376 ; 22 L. T. N. S. 57 322 
 Chichester v. Coventry, L. E. 2 H. L. 92 . . . . 169, 170 
 
 ChUd V. Child, 20 Bea. 50 137, 138 
 
 Childers v. Childers, 3 K. & J. 310 ; 1 D. & J. 482 ; 26 L. J. Ch. 
 
 743 ; 5 W. E. 586 26, 63, 67, 85 
 
 Childs, Ee, 9 Ch. 508 ; 43 L. J. Bk. 89 ; 30 L. T. N. S. 447 . . 137 
 Cholmondeley v. Cholmondeley, 14 Sim. 590 .... 54 
 
 V. Clinton, 2 Mer. 362 ; 2 J. & W. 190 . . 310, 318 
 
 Christie u. Gosling, L. E. 1 H. L. 279 51 
 
 V. Ovington, 1 Ch. D. 279 ; 24 W. R. 204 . . . . 224 
 
 Christophers v. White, 10 Bea. 523 197 
 
 Christ's Hospital v. Budgin, 2 Vern. 683 61 
 
 Ex parte, 2 H. & M. 166 144 
 
 Christy v. Courtenay, 13 Bea. 96 62, 66 
 
 Chubh 1). Stretch, 9 Eq. 559 ; 39 L. J. Ch. 329 ; 22 L. T. N. S. 86 ; 
 
 18 W. E. 483 263 
 
 Churchill V. Hobson, 1 P. W. 241 19 
 
 Churchman v. Harvey, Amb. 335 163 
 
 Clack V. Carlon, 30 L. J. Ch. 640 ; 9 W. E. 568 ; 7 Jiir. N. S. 44 : 
 
 4 L. T. N. S. 361 197, 198 
 
 V. Holland, 19 Bea. 271 ; 2 W. R. 402 . . . 88, 326 
 
 Clanrioarde v. Henning, 30 Bea. 175 ; 30 L. J. Ch. 865 ; 7 Jur. 
 
 N. S. 1113 ; 9 W. E. 912 313 
 
 Clark V. Hoskins, W. N. 1867, 216 207 
 
 . 11. Jaques, iBea. 36 266 
 
 V. Seymour, 7 Sim. 67 . . 116 
 
 Clarke v. Callow, 46 L. J. Q. B. 53 26 
 
XXXll TABLE OF CASES. 
 
 PAGE 
 
 Clarke v. Hogg, 19 W. R. 617 . . ... 178 
 
 V. Ormonde, 1 Jac. 120 229 
 
 V. Panopticon, The, 4 Drew, 26 123 
 
 0. Parker, 19 Ves. 1 12, 104, 162 
 
 V. Swaile, 2 Ed. 134 184, 194 
 
 V. WiUott, L. E. 7 Ex. 313 . .... 36 
 
 Clay V. Eufford, 5 D. G. & Sm. 768 120 
 
 Claydon v. Finch, 15 Eq. 266 ; 42 L. J. Ch. 416 ; 28 L. T. N. S. 
 
 101 . . .... . . 266,268 
 
 Claypole, Eector of, Ex parte, 16 Eq. 574 ; 42 L. J. Ch. 776 . . 105 
 
 Clayton's case, 1 Mer. 572 • 302 
 
 Clegg V. Edmondson, 8 D. U. G. 787 ; 27 L. T. N. S. 117 ; 3 Jur. 
 
 N. S. 299 V.3, 76 
 
 V. Pishwick, 1 McN. & G. 300 . . . . .76 
 
 Clements v. Hall, 2 D. & J. 173 ; 6 W. E. 358 ; 27 L. J. Ch. 349 ; 
 
 4 Jur. N. S. 495 ; 31 L. T. 1 70, 76 
 
 Clergy Orphan Corporation, Ee, 18 Eq. 280 ; 30 L. T. N. S. 806 ; 
 
 22 W. E. 789 . . . . . . . 109 
 
 CUnton, Ee, 8 W. E. 492 . . 15 
 
 Clissold, Ee, 10 L. T. N. S. 642 . . . . . 211 
 
 CHve V. Carew, IJ. & H. 199 ; 7 W. E. 433 ; 5 Jur. N. S. 487 ; 
 
 33 L. T. 161 265, 266 
 
 V. Clive, 7 Ch. 433 ; 41 L. J. Ch. 386 ; 26 L. T. N. S. 409 ; 
 
 20 W. E. 477 49 
 
 Clough V. Bond, 3 M. & Cr. 490 ; 8 L. J. Ch. 51 . 17, 100, 131, 214 
 
 V. Clough, 5 Ves. 710 . . ... 165 
 
 Glutton, Ex parte, 17 Jur. 988 . 211 
 
 Cobham v. Dalton, 10 Ch. 655 ; 44 L. J. Ch. 702 ; 23 W. E. 865 . 278 
 
 Cock V. GoodfeUow, 10 Mod. 496 137 
 
 Cockhum v. Peel, 3 D. P. & J. 170 ; 9 W. E. 725 ; 30 L. J. Ch. 
 
 575 ; 4 L. T. N. S. 571 135 
 
 Cocker v. Quayle, 1 E. & My. 535 . . . . 137, 138, 334, 335 
 Cockerell v. Cholmeley, 1 E. & My. 418 . . . . . 118 
 
 Codrington v. Foley, 6 Ves. 364 162, 163 
 
 Coe, Ee, 4 K. & J. 199 ; 4 Jur. N. S. 158 ... 175, 177 
 
 Cogan V. Duffield, 20 Eq. 789 ; 2 Ch. D. 44 ; 45 L. J. Ch. 307 ; 34 
 
 L. T. N. S. 593 ; 24 W. E. 905 46 
 
 Cohen v. Waley, 9 W. E. 137 ; 3 L. T. N. S. 436 . . . . 135 
 
 Cole «). Coles, 6 Ha. 517 116 
 
 V. Hawes, 4 Ch. D. 238 ; 46 L. J. Ch. 488 ; 25 W. E. 95 54, 55, 56 
 
 V. Muddle, 10 Hare, 186 335 
 
 1). Sewell, 4 Dr. & W. 1 . 117 
 
 1). Wade, 16 Ves. 27 . . .... 20,138,214 
 
 Oolegrave v. Manhy, 2 Eusa. 238 . . . .150 
 
TABLE OF CASES. XXXIU 
 
 PA&E 
 
 Coles V. Trecotliick, 9 Ves. 234 182 
 
 Collett V. CoUett, 35 Bea. 312 104 
 
 CoUey, Ee, 1 Eq. 496 165 
 
 Collier v. Walters, 17 Eq. 252 ; 43 L. J. Ch. 338 ; 22 W. R. 209 ; 
 
 29 L. T. N. S. 868 4, 5, 6, 7 
 
 Collingwood v. Stanhope, L. R. 4 H. L. 43 ; 38 L. J. Ch. 421 ; 
 
 17 W. R. 537 157, 158, 161 
 
 Collins V. Carey, 2 Bea. 128 197 
 
 V. Collins, 2 M. & K. 703 94 
 
 CoUinson v. Lister, 20 Bea. 356 ; 4 W. R. 133 ; 25 L. J. Ch. 38 ; 
 
 26 L. T. N. S. 132 ; 20 Jur. N. S. 75 . . . 90 
 
 Re, 3 D. M. & G. 409 216 
 
 Collis V. CoUis, 2 Sim. 365 275 
 
 Colman v. Sarrel, 1 Ves. Jim. 50 32 
 
 Colmore v. Tyndall, 2 Y. & J. 605 9 
 
 Colne Valley Railway, Ex parte, 1 D. F. & J. 53 . . . . 133 
 
 Colyer ■». Einch, 5 H. L. C. 905 128,129,295 
 
 Commissioners of "Works v. Harby, 23 Bea. 508 . . . 292 
 
 Compton V. Oxenden, 2 Ves. Jun. 261 . . . . .168 
 
 Congregational Church, Re, W. N. 1866, 196 . . . . 15 
 
 Coningham v. Melhuish, Pr. Ch. 31 . . ... 59 
 
 V. Plunkett, 2 Y. & C. C. C. 245 34 
 
 Conolly ■!). Parsons, 3 Ves. 625 Ill 
 
 Consterdine v. Consterdine, 31 Bea. 330 ; 31 L. J. Cli. 807 ; 
 
 10 W. E. 727 100, 139 
 
 Conway v. Conway, 3 B. C. C. 267 - 166 
 
 Consolidated Investment Co. v. Riley, 1 Giff. 371 ... 291 
 
 Cook V. Addison, 7 Eq. 466 ; 38 L. J. Ch. 322 ; 20 L. T. N. S. 
 
 212 ; 17 W. R. 480 99, 301 
 
 V. Collingridge, Jac. 607 286, 287 
 
 V. Dawson, 3 D. F. & J. 127 ; 30 L. J. Ch. 359 ; 4 L. T. N. 
 
 S. 226 ; 9 W. R. 434 128 
 
 V. Duokinfield, 2 Atk. 566 59 
 
 V. Hutchinson, 1 Keen, 42 58, 59 
 
 Re, W. N. 1873 ; 49 110 
 
 Re, 12 Eq. 12 ; 40 L. J. Ch. 400 ; 24 L. T. N. S. 413 ; 
 
 19 W. R. 693 134 
 
 Cooke V. Blake, 1 Exch. 220 ; 17 L. J. Ex. 370 .... 8 
 
 V. Crawford, 13 Sim. 91 ; 11 L. J. Ch. 40C . . 12, 23, 24 
 
 Ex parte, 4 Ch. D. 123 ; 46 L. J. Bk. 52 ; 35 L. T. N. S. 
 
 649 ; 25 W. R. 171 300, 301 
 
 V. Fuller, 26 Bea. 99 268 
 
 Re, 6 Jr. Ch. R. 430 68 
 
 Ee, 4 Ch. D. 454 116, 119 
 
 c 
 
XXXIV TABLE OF CASES. 
 
 PAOE 
 
 Cookney v. Anderson, 31 Bea. 452 ; 1 D. J. & Sm. 365 ; 32 L. J. 
 
 Ch. 427 ; 8 Jur. N. S. 1220 - 246 
 
 Cookson w. Lee, 23 L. J. Ch. 473 120 
 
 Coombes v. Brookes, 12 Eq. 61; 19 W. R. 1002; 25 L. T. N. S. 
 
 198 210 
 
 Coomer v. Bromley, 5 D. G. & Sm. 532 19 
 
 Coope V. Carter, 2 D. M. & G. 292 328 
 
 Cooper & Allen, Ee, 5 Ch. D. 802 ; 46 L. J. Ch. 133 ; 35 L. T. N. 
 
 S. 890 ; 25 W. R. 301 117, 118 
 
 V. Kynock, 7 Ch. 398 ; 41 L. J. Ch. 299 ; 20 W. E. 503 ; 
 
 26 L. T. N. S. 566 9 
 
 V. Macdonalcl, 16 Eq. 258 170 
 
 V. 35 Bea. 504" 214 
 
 V. 7 Ch. D. 288 ; 47 L. J. Cli. 373 ; 38 L. T. 
 
 N. S. 195 ; 26 W. R. 377 258,271 
 
 V. Wells, 11 Jnr. N. S. 923 .... . 256 
 
 Cooth. V. Jackson, 6 Ves. 39 68 
 
 Cope V. De La Warr, 8 Ch. 982 ; 29 L. T. N. S. 565 ; 22 \X. R. 8 49 
 
 Copeland, Ex parte, 2 D. M. & G. 914 139 
 
 Copeman v. Gallant, 1 P. W. 314 218 
 
 Coppard v. AUen, 2 D. J. & Sm. 173 ; 33 L. J. Ch. 475 ; 10 Jur. 
 
 N. S. 622 .331, 332 
 
 Coppin V. Coppin, 2 P. W. 295 39 
 
 ii. Femyhough, 2 B. C. C. 291 78 
 
 V. Gray, 1 Y. & C. C. C. 205 316 
 
 Corbet v. Corbet, I. R. 7 Eq. 456 52 
 
 Corbett v. Maidwell, 1 Salk. 159 ; 2 Vem. 640 . . . 163, 167 
 
 Corbyn v. French, Tudor R. P. Cases, 456 86 
 
 Cordal's case, Cro. Eliz. 316 7 
 
 Cordwell v. Macki-Ul, Amb. 515 ; 2 Ed. 344 . . . . 47, 299 
 
 Corrie v. Byrom, Hill on Trustees, 610 213 
 
 Corser v. Cartwright, L. E. 7 H. L. 731 ; 45 L. J. Ch. 605 
 
 126, 128, 129, 130, 298 
 
 Cosser v. Radford, 1 D. J. & Sm. 585 37 
 
 Costabadie v. Costabadie, 6 Ha. 414 174 
 
 Costeker v. Horrox, 3 Y. & C. Ex. 530 275 
 
 Cothay v. Sydenham, 2 B. C. 0. 391 233 
 
 Cottam V. Eastern Counties Ry. Co., 1 J. & H. 243 ; 30 L. J. Ch. 
 
 217 ; 3 L. T. N. S. 465 ; 6 Jur. N. S. 1367 ; 9 W. R. 94 . 204 
 
 Cotteen v. Missing, 1 Mad. 176 31 
 
 Cotton, Re, 1 Ch. D. 232 ; 45 L. J. Ch. 201 ; 33 L. T. N. S. 720 ; 
 
 24 W. R. 243 172 
 
 Cottrell V. CottreU, 2 Eq. 330 121 
 
 Coulson, Re, "W. N. 1867, 233 15 
 
TABLE OF CASES. XXXV 
 
 PAGE 
 
 Course v. Humphrey, 26 Bea. 402 ; 28 L. J. Cli. 327 ; 5 Jur. N. S. 
 
 615 ; 32 L. T. 329 16 
 
 Court V. Kobarts, 6 CI. & F. 65 287 
 
 Courtenay v. Courtenay, 3 J. & L. 519 205, 207 
 
 Courtney v. Taylor, 7 Scott, N. R. 749 ; 6 Man. & Gr. 851 . . 333 
 Coventry, Mayor of, v. Attorney-General, 7 B. P. C. 235 . . 216 
 
 Cowell V. Gatcombe, 27 Bea. 568 239 
 
 Cowley V. Wellesley, 35 Bea. 637 107 
 
 Cowperi). Scott, 3 P. W. 119 160 
 
 Cox V. Barker, 3 Ch. D. 370 ; 35 L. T. N. S. 685 ... 234 
 
 V. Cox, 8 Eq. 343 ; 38 L. J. Cli. 569 92 
 
 V. 1 K. & J. 251 125 
 
 V. Dolman, 2 D. M. & G. 592 ; 22 L. J. Ch. 427 ; 20 L. T. 
 
 N. S. 171 ; 1 W. E. 93 314 
 
 Ex parte, 1 Ch. D. 302 ; 33 L. T. N. S. 757 ; 24 W. K 302 . 218 
 
 V. Lyne, Younge, 562 254 
 
 V. Parker, 22 Bea. 168 ; 25 L. J. Ch. 873 ; 2 Jur. N. S. 842 ; 
 
 4 "W. E. 453 ; 27 L. T. N. S. 179 3, 243 
 
 CoxweH V. Frankliniski, 11 L. T. N. S. 153 ; 12 W. R. 1072 . 87 
 Crabtree v. Poole, 12 Eq. 13; 40 L. J. Ch. 468; 24 L. T. N. S. 
 
 895 296 
 
 Crackelt v. Bethune, 1 J. & W. 586 283, 285 
 
 Cradock v. Piper, 1 Macn. & G. 664 197 
 
 Cragg V. Taylor, L. E. 1 Ex. 148 ; L. R. 2 Ex. 131 ; 35 L. J. Ex. 
 92 ; 36 L. J. Ex. 63 ; 13 L. T. N. S. 756 ; 14 W. E. 392 ; 
 
 12 Jur. N. S. 320 140 
 
 Craig u Wheeler, 29 L. J, Ch. 374 ; 8 W. R. 172 . . . 91, 92 
 
 Crallan v. Oulton, 3 Bea. 1 39 
 
 Cranley v. Dixon, 23 Bea. 512 97 
 
 Cranstown v. Johnstone, 3 Ves. 170 244, 294 
 
 Craven, Ex parte, 17 L. J. Ch. 215 147 
 
 Crawley v. Crawley, 7 Sim. 427 ... . . . 97 
 
 Crawshay v. Collins, 1 J. & W. 267 . . . ■ . . 287 
 
 V. Maule, 1 Swans. 508 70 
 
 Creagh v. Wilson, 2 Vem. 572 162 
 
 Creaton v. Creaton, 3 Sm. & G. 386 ; 26 L. J. Ch. 266 ; 5 W. R. 
 
 125 ; 2 Jur. N. S. 1223 . 2, 3, 7 
 
 Cresswell v. DeweU, 4 Giff. 460 334 
 
 Creuze v. Hunter, 2 Ves. Jun. 157 . . ... ■ .284 
 
 Crewe v. Dicken, 4 Ves. 97 10 
 
 Crickett v. Dolby, 3 Ves. 13 172 
 
 Crockett V. Crockett, 2 Ph. 553 57 
 
 Croker, Re, W. N. 1877, 38 106 
 
 Crompton v. Melbourne, 5 Sim. 353 121 
 
 c 2 
 
XXXVl TABLE OF CASES. 
 
 PAGE 
 
 Cropton V. Davies, L. E. 4 C. P. 159 ; 38 L. J. Ch. 159 ; 17 W. E. 
 
 444 ; 20 L. T. N. S. 30 5 
 
 CrosMe v. McDoual, 13 Ves. 148 62 
 
 Croskill V. Bower, 32 Bea. 86 ; 11 W. R. 41 ; 1 N. E. 379 ; 
 
 9 Jur. N. S. 267 ; 8 L. T. N. S. 135 198 
 
 Crosse, Ee, 32 L. J. Ch. 344 ; 8 L. T. N. S. 299 ; 9 Jur. N. S. 429 ; 
 
 11 W. E. 396 . . . 161 
 
 Crossley v. City of Glasgow Life Office, 4 Ch. D. 421 ; 46 L. J. Ch. 
 
 65 ; 36 L. T. N. S. 285 ; 25 W. R. 264 . . . 284 
 
 V. Crowther, 9 Ha. 384 279 
 
 Croughton, Ee, 8 Ch. D. 460; 38 L. T. N. S. 447; 23 W. E. 
 
 574 268 
 
 Croweu. Ballard, 3 B. C. C. 117 193,194 
 
 V. Crisford, 17 Bea. 507 ; 2 W. E. 45 . . . .92 
 
 Crowther v. Crowther, 23 Bea. 305 ; 5 AV. E. 238 ; a.-^ L. T. N. S. 
 
 315 311 
 
 Cruikshank v. Duffin, 13 Eq. 555 ; 41 L. J. Ch. 317 ; 26 I,. T. N. S. 
 
 121 ; 20 W. E. 354 123 
 
 Cramp D. Baker, 18 Ves. 284 201 
 
 Cruwys v. Coleman, 9 Ves. 319 ..... . . 56 
 
 Cuff i». Hall, 19 Jur. N. S. 972 116 
 
 Cull, Ee, 20 Eq. 561 ; 44 L. J. Ch. 664 ; 23 W. E. 850 ; 32 L. T. 
 
 N. S. 853 232, 233 
 
 Cullen V. Attorney-General for Ireland, L. E. 1 H. L. 190 ; 14 L. T. 
 
 N. S. 644 ; 12 Jur. N. S. 53 ; 14 W. E. 869 . . . . 82 
 
 Culpepper t). Aston, 2 Ch. Ca. 115, 223 58,127 
 
 Cuuliflfe V. Brancker, 3 Ch. D. 393 ; 46 L. J. CIi. 123 ; 35 L. T. 
 
 N. S. 578 6 
 
 V. Cunliffe, Amb. 686 . . 57 
 
 Cunynghame, Ee, 11 Eq. 324; 40 L. J. Ch. 247; 24 L. T. N. S. 
 
 124 ; 19 W. E. 381 . . . . . . . . 267 
 
 Curnick v. Tucker, 17 Eq. 320 53, 57 
 
 Currant v. Jago, 1 Coll. 261 61, 65 
 
 Currie v. Larkins, 12 W. E. 515 . . . ' . . . . 161 
 Curteis v. Candler, 6 Mad. 123 230 
 
 Ee, 14Eq. 217; 41 L. J. Ch. 631 64 
 
 Curtis V. Lukin, 5 Bea. 147 152 
 
 V. Price, 12 Ves. 89 9 
 
 Ee, I. E. 5 Eq. 429 212 
 
 Cutbu^jh V. Cutbush, 1 Bea. 184 90 
 
 Cutts V. Salmon, 4 D. G. & Sm. 125 190 
 
 Dacre v. Patrickson, 1 Dr. & Sm. 182 ; S W. E. 597 ; 2 L. T. 
 
 N. S. 500 . 244 
 
TABLE OF CASES. XXXvii 
 
 PAGE 
 
 D'Adhemar v. Bertrand, 35 Bea. 19 . . . . 203, 211, 213 
 
 D'Aglie V. Fryer, 12 Sim. 1 94 
 
 Daking v. "Whimper, 26 Bea. 568 36 
 
 Dale V. Hamilton, 5 Ha. 369 70 
 
 Daly V. Beckett, 24 Bea. 114 94 
 
 .■. French, 6 B. P. C. 55 . . . . . 164, 166 
 
 Dance v. Goldinghani, 8 Ch. 902 ; 42 L. J. Ch. 777 ; 2'.) L. T. X. S. 
 
 160 . 113, 118, 280 
 
 Dane, Ee, I. H. 5 Eq. 499 75, 309 
 
 Daniel v. Adams, Amh. 495 . . Ill 
 
 V. Freeman, I. R. 8 Eq. 233 291 
 
 V. Warren, 2 Y. & C. C. C. 290 93 
 
 Darby v. Darby, 3 Drew, 495 70 
 
 D'Arcy v. Blake, 2 Sch. & L. 387 2B9, 270 
 
 Darcy v. Croft, 9 I. Ch. E. 19 257 
 
 Darke v. Martyn, 1 Bea. 525 . . .... 99, 137 
 
 V. Williamson, 25 Bea. 622 ; 6 W. E. 824 . . . . 102 
 
 Darkin v. Darkin, 17 Bea. 578 ; 2 W. E. 135 ; 22 L. T. N. S. 278 
 
 249, 252 
 
 Darley v. Darley, 3 Atk. 399 248 
 
 Dashwood «. Bulkeley, 10 Ves. 230 .... .104 
 
 Davenport v. Davenport, 1 H. & M. 779 49 
 
 ■ V. Stafford, 14 Bea. 331 240 
 
 Davey v. Durrant, 1 D. & J. 535 ; 26 L. J. Ch. 830 . . 12 i, 192 
 
 V. Ward, 7 Ch. D. 754 174, 179 
 
 Davie v. Hooper, 6 B. P. C. 51 169 
 
 Davies v. Austin, 1 Ves. Jun. 247 176 
 
 V. Davies, 2 D. M. & G. 53 176 
 
 . V. Hodgson, 25 Bea. 177; 6 W. E. 355 ; 27 L. J. Ch. 449 ; 
 
 4 Jur. N. S. 252 ; 31 L. T. 49 . . . 231, 268 
 
 0. Hugnenin, 1 H. & M. 730 ; 11 W. E. 1040 ; 32 L. J. Cli. 
 
 417 ; 2 N. E. 101 ; 8 L. T. N. S. 443 . . . . 158 
 
 V. Jenkins, 6 Ch. D. 728 ; 26 W. E. 260 . .261, 262, 264 
 
 • V. Nicolson, 2 D. & J. 693 329 
 
 V. Otty, 35 Bea. 208 26, 85 
 
 V. Wescomb, 2 Sim. 425 ... . . . 118 
 
 Davis V. Chambers, 7 D. M. & G. 386 . . . . . 122 
 
 V. Dendy, 3 Mad. 170 197, 202 
 
 V. Dysart, 20 Bea. 414 ; 3 W. E. 393 ; 24 L. J. Ch. 381 ; 25 
 
 L. T. 91 ; 3 Eq. Eep. 599 227 
 
 Ex parte, 2 Y. & C. C. C. 468 212 
 
 V. Frowd, 1 M. & K. 200 . 231 
 
 V. Marlborough, 2 Swans. 118 . . . ... 274 
 
 Re, 12 Eq. 214 ; 40 L. J. Ch. 566 ; 19 \V. P.. 944 204, 210, 211 
 
XXXVm TABLE OP CASES. 
 
 PAGE 
 
 Davis V. Spurling, 1 E. & M. 64 18, 19 
 
 Davison v. Atkinson, 5 I. R. 434 248 
 
 Dawkins v. Penihyn, 6 Cli. D. 318 ; 36 L. T. N. S. 680 . 54, 316 
 Dawson 1). Bourne, 16 Bea. 29 255 
 
 V. Clarke, 15 Ves. 409 ; 18 Ves. 254 .' . . . 59, 237 
 
 V. Massey, 1 B. & B. 219 189 
 
 V. Oliver-Massey, 2 Ch. D. 758 ; 45 L. J. Ch. 519 ; 24 
 
 W. R. 993 . . . " 104 
 
 V. Prince, 2 D. & J. 41 ; 6 W. R. 171 ; 27 L. J. Ch. 169 ; 
 
 4 Jur. N. S. 497; 30 L. T. 237 259 
 
 . ,;. Whitehaven, Bank of, 6 Ch. D. 218 ; 46 L. J. Ch. 545 ; 
 
 36 L. T. N. S. 310 ; 25 W. R. 582 . . . . 269, 270 
 
 Day V. Freund, W. N. 1876, 266 265 
 
 V. Badcliffe, 3 Ch. D. 654 ; 24 "W. R. 961 . . . 160, 161 
 
 Deacon v. Colquhonn, 2 Drew. 21 ; 2 W. R. 67 ; 23 L. J. Ch. 16 ; 
 
 2 Eq. Rep. 319 66, 68 
 
 V. Smith, 3 Atk. 323 305 
 
 Dearie v. Hall, 6 Russ. 1 -289 
 
 De Bussche v. Alt, 8 Ch. D. 286 ; 47 L. J. Ch. 381 ; 38 L. T. N. S. 
 
 370 187 
 
 Deeth v. Hale, 2 Moll. 317 114 
 
 . . 271 
 
 . 46 
 
 69 
 
 . 185 
 
 . 30, 31 
 
 . 209, 215 
 
 . . 107 
 
 De Grey v. Richardson, 3 Atk. 469 .... 
 De Havilland v. De Saiunarez, 14 W. R. 118 
 Delane d. Delane, 7 B. P. C. 279 . 
 Delves v. Delves, 20 Eq. 77 ; 23 W. R. 499 . 
 Dening v. Ware, 22 Bea. 184 ; 4 W. R. 523 . 
 
 Dennis, Re, 12 W. R. 575 
 
 Dent V. Dent, 30 Bea. 363 
 
 Denton v. Davies, 18 Ves. 499 .... 
 
 V. Davy, 1 Moore, P. C. C. 15 . . . . . 199 
 
 V. Denton, 7 Bea. 388 222, 226 
 
 V. Donner, 23 Bea. 285 184, 189 
 
 Derhishire v. Home, 3 D. M. & G. 80 . . . . . 268 
 Devaynes v. Nohle, 1 Mer. 563 326 
 
 11. Robinson, 24 Bea. 86 ; 5 W. R. 509 ; 29 L. T. N. S. 
 
 244; 3 Jur. N. S. 707 122,123,129,329 
 
 Devey v. Peace, Taml. 77 213 
 
 V. Thornton, 9 Ha. 232 232 
 
 De Visme, Re, 2 D. J. & Sm. 17 ; 33 L. J. Ch. 332 ; 12 W. R. 
 
 140 ; 10 L. T. N. S. 668 65 
 
 Devoy v. Devoy, 3 Sm. & G. 403 ; 5 W. E. 222 ; 26 L. J. Cli. 290 ; 
 
 28 L. T. N. S. 336 ; 3 Jur. N. S. 79 66 
 
 Dewell, Re, 4 Dr. 269 244 
 
 De Witte v. Palin, 14 Eq. 251 ; 26 L. T. N. S. 825 . . . . 176 
 
TABLE OF CASES. XXxix 
 
 PAGE 
 
 D'Eyncourt v. Gregory, 3 Ch. D. 635 ; 45 L. J. Ch. 205 ; 24 ^Y. 
 
 R. 424 103 
 
 Dibbs V. Goren, 11 Bea. 483 231 
 
 Dicconson v. Talbot, 6 Ch. 32 189 
 
 Dickenson v. Teasdale, 1 D. J. & Sm. 52 ; 32 L. J. Cli. 37; 1 N. 
 
 R. 141 ; 9 Jur. N. S. 60, 237 ; 7 L. T. N. S. 655 . . 311, 316 
 
 Dickinson v. Mort, 8 Ha. 78 267 
 
 Ee, 1 Jur. N. S. 724 213 
 
 Dickson, Re, 12 Eq. 154 ; 40 L. J. Ch. 707 333 
 
 Dilkes V. Broadmead, 2 D. F. & J. 566 ; 30 L. J. Ch. 268 ; 7 Jur. 
 
 N. S. 56 330 
 
 Dillon V. Coppin, 4 M. & Cr. 647 29, 30, 35 
 
 V. Harris, 4 Bligh, N. R. 321 104 
 
 Dilhvyn v. Llewelyn, 4 D. F. & J. 517; 10 W. R. 742 . . . 30 
 
 Dimes v. Scott, 4 Russ. 195 96,132,327 
 
 Dipple V. Corles, 11 Ha. 183 33 
 
 Dix V. Burford, 19 Bea. 409 13,238,239 
 
 Dixon V. Dixon, 1 Bea. 40 266 
 
 V. Olmius, 1 Cox, 414 ; 2 Cox, 414 80, 256 
 
 Re, 21 W. R. 220 211 
 
 V. SaviUe, X B. C. C. 326 269 
 
 Dobson V. Land, 8 Ha. 216 100, 186 
 
 Docker v. Somes, 2 M. & K. 655 286 
 
 Dodds V. HiUs, 2 H. & M. 424 299 
 
 Dodkin v. Brunt, 6 Eq. 580 204 
 
 Doe V. Barthrop, 5 Taunt. 382 1 
 
 V. Bennett, 6 Exch. 892 22 
 
 V. Biggs, 2 Taunt. 109 2 
 
 11. Bolton, 11 A. & E. 188 ; 3 Per. & D. 135 . . . . 2, 6, 8 
 
 V. Cafe, 7 Exch. 675 ; 21 L. J. Ex. 219 . . . . 7, 8 
 
 V. Davies, 1 Q. B. 438 ; 1 G. & D. 33 ; 10 L. J. Q. B. 169 . 5 
 
 V. Edlin, 4 A. & E. 582 ; 5 L. J. (K. B.) 137 ... 6 
 
 V. Ewart, 7 A. & E. 636 ; 3 N. & P. 197 ; 7 L. J. Q. B. 177 2, 5, 6 
 
 V. HaUett, 1 M. & S. 124 159 
 
 V. Harris, 16 M. & W. 517 ; 16 L. J. Ex. 190 . . 10, 13 
 
 V. Hicks, 7 T. R. 433 8 
 
 V. Homfray, 6 A. & E. 206 ; 1 N. & P. 401 ; L. J. (K. B.) 132 . 3 
 
 V. Hopkins, 9 East, 70 36 
 
 V. Ironmonger, 3 East, 533 ....... 8 
 
 V. King, 6 Exch. 791 69 
 
 V. Lightfoot, 8 M. & W. 553 21 
 
 V. Manning, 9 East, 59 35 
 
 V. Nepean, 5 B. & Ad. 86 ; 2 M. & W. 894 . . . . 235 
 
 V. NichoUs, 1 B. & C. 336 ; 1 L. J. (K. B.) 124 . . ..1,8 
 
xl TABLE OF CASES. 
 
 PAGE 
 
 Doe t). Pratt, 6 A. &E. 180; 6L. J. (K. B.) 101 . ... 7 
 
 V. Eoe, 1 Anst. 86 ^^^ 
 
 V. Eusliam, 17 Q. B. 723 35 
 
 r. Simpson, 6 East, 162 ' 
 
 V. Walbank, 2 B. & Ad. 554 6 
 
 V. Willan, 2 B. & Aid. 84 6 
 
 V. "Woodhouse, 4 T. E. 89 ' 
 
 Bolder v. Bank of England, 10 Ves. 352 276 
 
 Dolphin V. Aylward, L. K. 4 H. L. 486 . ... 36 
 
 Dolton V. Hewer, 6 Mad. 9 126 
 
 Domville v. SoUy, 2 Euss. 372 276 
 
 Donaldson v. Donaldson, 3 Ch. D. 743; 34 L. T. N. S. 900; 24 W. 
 
 E. 1137 105 
 
 V. Kay, 711 ; 2 W. E. 691 . . . . 288 
 
 Doncaster v. Doncaster, 3 K. & J. 26 ; 2 Jur. N. S. 1066 . . . 47 
 
 Donisthorpe v. Porter, 2 Ed. 162 168 
 
 Ee, 10 Ch. 55 ; 44 L. J. Cli. 536 ; 31 L. T. N. S. 369 ; 
 
 23 W. R. 100 40 
 
 Donne v. Hart, 2 E. & M. 360 258 
 
 Donovan v. Needham, 9 Bea. 164 172 
 
 Doran v. Wiltshire, 3 Swans. 699 125 
 
 Dorin r. Dorin, L. E. 7 H. L. 568 83 
 
 Dormer v. Dormer, Finch. 433 160 
 
 V. Eortescue, 3 Atk. 124 323 
 
 Domford v. Dornford, 12 Ves. 127 219, 330 
 
 Doss V. Secretary of State for India, 19 Eq. 509 .... 245 
 
 Doughty V. BuU, 2 P. W. 319 160 
 
 Douglas V. Andrews, 12 Bea. 310 174 
 
 V. Archbntt, 2 D. & J. 148 ; 27 L. J. Ch. 271 ; 4 Jur. N. 
 
 S. 315 ; 6 W. E. 306 ; 31 L. T. 4 196, 199 
 
 Dover v. Buck, 5 Giif. 57 183 
 
 Ex parte, 5 Sim. 500^ 13 
 
 Dowling V. Dowling, 1 Ch. 613 ; 12 Jui. 720 ; 14 "W. E. 1003 . 234 
 
 V. Hudson, 17 Bea. 248 126 
 
 Downes v. Grazehrook, 3 Mer. 200 ... Ill, 184, 186, 310 
 
 Doyle 11. Blake, 2 Sch. & L. 239 14, 18, 232 
 
 D'Oyley v. Attorney-General, 4 Vin. Ab. 486 ... . 103 
 
 Drake v. Trefusis, 10 Ch. 364 ; 33 L. T. N. S. 85 ; 23 W. E. 762 . 105 
 
 V. Whitmore, 5 D. G. & Sm. 619 124 
 
 Drakeford v. Wilks, 3 Atk. 539 79 
 
 Drever v. Mawdesley, 16 Sim. 511 40 
 
 Drew V. Martin, 2 H. & M. 130; 12 W. E. 547 ; 33 L. J. Ch. 367 ; 
 
 3 N. E. 637 ; 10 Jur. N. S. 366 ; 10 L. T. N. S. 291 . . . 62 
 
 Drewe, Ee, W. N. 1876, 168 212 
 
TABLE OF CASES. 
 
 xli 
 
 PAGE 
 
 . . 156 
 
 142, 238, 241 
 
 . . 140 
 
 . 315 
 
 . . 129 
 
 . 251 
 
 . . 276 
 
 . 16 
 
 . . 30 
 
 . 169 
 
 Drewett v. Pollard, 27 Bea. 196 
 Drosier v. Brereton, 15 Bea. 222 . 
 Drummond, Re, 2 Giff. 189 
 
 V. Sant, L. R 6 Q. B. 763 
 
 V. Tracy, Jolins. 60S 
 
 Drury v. Scott, 4 Y. & C. 264 
 DuLless V. Flint, 4 M. & Cr. 502 
 Dubois, Ex parte, 1 Cox, 310 
 Dubost, Ex parte, 18 Ves. 149 . 
 Duffleld V. Smith, 2 Vern. 258 
 Dugdale v. Meadows, 6 Ch. 501 ; 40 L 
 
 S. 113 121 
 
 Du Hoiirmelin v. Sheldon, 2 W. R. 630 . . .244 
 
 Duke V. Doidge, 2 Ves. Sen. 203, n 157, 159 
 
 Diimmer v. Pitcher, 2 M. & K. 262 64 
 
 Dumper v. Dumper, 3 Giff. 583 ; 8 Jur. N. S. 583 ; 6 L. T. N. S. 
 
 315 66 
 
 Dunbar v. Tredennick, 2 B. & B. 304 . . 132, 193, 194, 294 
 Duncan v. Bluett, 4 I. E. E(i. 469 . . ... 47 
 V. Casbin, L. E. 10 C. P. 5ol ; 41 L. J. E :. 225 ; 32 L. T. 
 
 J.- Ch. 140 ; 24 L. T. N. 
 
 N. S. 497 ; 22 W. E. 561 . 
 Dunch V. Kent, 1 Vern. 260 . 
 Buncombe ■;;. Nelson, 9 Bea. 211 
 Dunnage v. White, IJ. & W. 583 
 Dunne v. Doran, 13 Ir. Eq. 545 
 
 V. Dunne, 3 Sm. & G. 22 ; 
 
 V. English, 18 Eq. 524 
 
 252 
 
 . 37 
 . 175 
 59,60 
 
 314 
 
 7 D. M. & G. 207 . . 107 
 
 . 183, 187, 274, 275 
 
 Dunnill, Ee, I. E. 6 Eq. 322 49 
 
 Dyer v. Dyer, 2 Cox, 92 . . . . . 61, 62, 66, 67 
 
 Eade v. Eade, 5 Mad. 118 .... 
 Eager v. Barnes, 31 Bea. 579 ; 7 L. T. N. S. 408 
 Eales V. England, Pr. Ch. 200 ; 2 Ver. 467 . 
 
 East V. East, 5 Ha. 348 
 
 Ee, 8 Ch. 735 ; 42 L. J. Ch. 480 . 
 
 East India Co. v. Donald, 9 Ves. 275 
 
 Eaton V. Watts, 4 Eq. 151 ; 16 L. T. N. S. 311 
 
 Eaves v. Hiokson, 30 Bea. 136 ; 10 \V. R. 29 ; ' 
 
 5 L. T. N. S. 598 
 Ebrand v. Dancer, 1 Coll. 265, n. . 
 
 Edgeworth v. Edgeworth, Beatt. 328 160 
 
 Edmonds v. Peake, 7 Bea. 239 ....... 100 
 
 Edwards v. Abrey, 2 Ph. 37 249 
 
 V. Fashion, Prec. Ch. 332 69 
 
 53, 55 
 
 . . 325 
 
 . 52 
 
 . . 88 
 
 . 211 
 
 . . 294 
 
 . 53, 54, 55 
 
 Jur. K. S. 1297; 
 
 231, 235, 337 
 . 65 
 
xlii TABLE OP CASES. 
 
 PAGE 
 
 Edwards v. Grove, 2 D. F. & J. 221 ; 29 L. J. CIi. 839 ; 2 L. T. N. 
 
 S. 620 176 
 
 V. Harvey, G. Cooper, 4,') 122 
 
 V. Jones, 1 M. & Cr. 226 29 
 
 V. Jones, 14 W. R 815 255 
 
 V. Lewis, 3 Atk. 538 . . 77 
 
 • V. Martin, 1 Eq. 121 ; 3r> L. J. 187 ; 13 L. T. N. S. 236 ; 
 
 14 W. R. 25 . . . . . . .290 
 
 D. Meyrick, 2 Ha..60 189,190 
 
 V. Pike, Ed. 267 80 
 
 1;. Tuck, 3 D. M. & G. 40 ; 1 W. R. 248 ; 22 L. J. Ch. 
 
 523 ; 21 L. T. 83 156 
 
 V. Warden, L. R. 1 App. 0. 281 ; 4.5 L. J. Ch. 713 . . 308 
 
 V. WUliams, 32 L. J. Ch. 763 190 
 
 Egbert v. Butter, 21 Bea. 560 220, 240, 336 
 
 Egerton v. Brownlow, 4 H. L. C. 1 44, 47 
 
 Eidsforth v. Armstead, 2 K. & J. 333 ; 4 W. E. 279 ; 25 L. J. Ch. 
 
 237; 26 L.T.N. S. 323 . . 128 
 
 EisdeU v. Hammersley, 31 Bea. 255 ; 6 L. T. N. S. 706 . ..119 
 Eland I). Eland, 1 Bea. 235 ; 4 M. & Cr. 429 . . . .126 
 
 Eldridge v. Knott, Cowp. 214 317 
 
 EUcock V. Mapp, 3 H. L. C. 492 243 
 
 Elliot V. Brown, 3 Swans. 489 . . 70 
 
 V. ElUot, 2 Ch. Ca. 231 63 
 
 V. Merryman, 1 W. & T. L. C. 64 . . 126, 127, 128 
 
 Elliott V. Minto, 6 Mad. 16 245 
 
 Ellis V. Eden, 23 Bea. 543 139 
 
 V. Ellis, 23 W. R. 382 55 
 
 V. Maxwell, 3 Bea. 595 ; 12 Bea. 104 .. . 153, 154 
 
 V. Nimmo, LI. & G. Sugd. 333 32 
 
 . Re, 17 Eq. 409 ; 43 L. J. Ch. 444 ; 22 W. R. 448 . . . 268 
 
 Ellison u Airey, 1 Ves. Sen. 114 .... 196,199,200 
 
 . V. ElHson, 6 Ves. 656 ; 1 "W. & T. L. C. Eq. 2S2 . 27, 30 35 
 
 Ellison, Re, 20 Jur. N. S. 62 10 
 
 V. Thomas, 1 D. J. & Sm. 18 ; 32 L. J. Cli. 32 ; 8 Jur. N. S. 
 
 1139; 11 W. R. 56; 1 N. R. 37; 7 L. T. N. S. 342 . 158, 161 
 
 Else V. Barnard, 28 Bea. 228 112 
 
 Elsebe, The, 5 Rob. 173 242 
 
 Elton V. Elton, 27 Bea. 634 146 
 
 V. Sheppard, 1 B. C. C. 532 252 
 
 Elwin V. Elwin, 8 Ves. 546 147 
 
 Emblyn v. Freeman, Pr. Ch. 541 60 
 
 Embrey v. Mairtin, Anib. 230 160 
 
 Emery v. Hill, 1 Russ. 112 246 
 
TABLE OF CASES. xliii 
 
 PAGE 
 Emmet v. Clark, 3 Giff. 32 ; 9 W. R. 515 ; 30 L. J. Ch. 472 ; 7 
 
 Jur. N. S. 404; 4L. T. N. S. 319 212 
 
 Emperor v. Rolfe, 1 Ves. Sen. 208 161 
 
 England v. Tredegar, 35 Bea. 256 237 
 
 Englefield v. Englefield, 2 Vern. 236 166 
 
 Entwistle v. Markland, 6 Ves. 528 147 
 
 Equitable Reversionary Society v. Fuller, 1 J. & H. 379 ; 30 L. J. 
 
 Ch. 497; 4 L. T. N. S. 450 ; 7 Jur. N. S. 307 ; 9 W. R. 400 
 
 133, 135 
 
 Ernest v. Croysdill, 2 D. F. & J. 175 322 
 
 Espin V. Pemberton, 3 D. & J. 547 ; 7 W. R. 123, 221 ; 28 L. J. 
 
 Ch. 308, 311 ; 5 Jur. N. S. 55, 157 ; 32 L. T. 250, 345 . 290 
 
 Essex V. Atkins, 14 Ves. 542 258 
 
 Etty V. Bridges, 2 Y. & C. C. C. 486 292 
 
 Evans v. Bagwell, 2 C. & L. 612 41 
 
 V. Bear, 10 Ch. 77 ; 31 L. T. N. S. 625 ; 23 W. R. 67 . . 277 
 
 •■;. Bicknell, 6 Ves. 174 227, 294, 319 
 
 V. Carrington, 2 D. F. & J. 481 ; 30 L. J. Cli. 364 ; 7 Jur. 
 
 N. S. 197 ; 4 L. T. N. S. 65 235 
 
 V. Coventry, 5 D. M. & G. 918 272 
 
 V. Evans, 23 Bea. 1 259 
 
 V. HeUier, 5 CI. & F. 114 155 
 
 V. Jackson, 8 Sim. 217 • . . 124 
 
 V. John, 4 Bea. 36 14 
 
 V. Massey, 1 Y. & J. 196 172, 173 
 
 Re, 30 Bea. 232 108 
 
 V. Scott, 1 H. L. C. 57 160 
 
 Evelyn v. Evelyn, 2 P. W. 669 164, 166 
 
 Everett B. Prythergch, 12 Sim. 367 273 
 
 Every v. Gold, 2 Ch. R. 1 169 
 
 Ewens v. Addison, 4 Jur. N. S. 1034 104 
 
 Eykyn, Re, 6 Ch. D. 115 64 
 
 Eyre v. Dolphin, 2 B. & B. 290 73, 77 
 
 V. Hughes, 2 Ch. D. 148; 45 L. J. Ch. 395 ; 34 L. T. N. S. 
 
 21 ; 24 W. R. 597 201 
 
 V. MacdoneU, 15 Ir. Ch. R. 534 188 
 
 V. Marsden, 2 Keen, 564 155 
 
 Fairchild, Ex parte, 1 G. & J. 221 219 
 
 Fairer v. Park, 3 Ch. D. 309 169 
 
 Falkner v. Equitable Society, 4 Drew. 352 ; 28 L. J. Ch. 132 : 7 
 
 W. R. 73; 4 Jur. N. S. 1214; 32 L. T. 181 . . . . 120 
 Farington v. Parker, 4 Eq. 116; 16 L. T. N. S. 258 ; 15 W. R. 
 
 685 261 
 
xliv 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Farley v. Bonliam, 2 J. & H. 177 ; 9 W. R. 299 ; 30 L. J. Cli. 239 ; 
 
 7 Jur. N. S. 232 ; 3 L. T. N. S. 806 270 
 
 Farmer r. Dean, 32 Bea. 327 112 
 
 Farrant v. Blanohford, 1 D. J. & Sm. 119 ; 11 W. R. 294 ; 32 L. J. 
 
 Ch. 237 ; 9 Jur. N. S.423 ; 7 L. T. N. S. 770 . 318, 334, 336 
 Farrar v. Barraclough, 2 Sm. & G. 231 ; 2 W. R. 244 . 141, 143 
 
 . 254 
 
 . . 204 
 
 77, 187 
 
 107 
 
 . 158 
 
 94, 97, 201 
 
 . 76 
 
 . 99, 239 
 
 T. N. S. 
 
 . 98 
 14, 87, 325 
 . 39 
 . 277 
 . 198 
 . 185 
 . 296 
 . 172 
 . 257 
 37,38 
 . 267 
 . 90 
 262, 265 
 61, 62 
 . 213 
 . 22 
 . 224 
 . 82 
 59, 60 
 . 299 
 
 Farrow v. Smith, "W. N. 1877, 21 
 
 Fauntleroy, Re, 10 Sim. 252 
 
 Fawcett v. Whitehouse, 1 R. & M. 132 .... 
 Fazakerley v. Culshaw, 19 W. R. 793 
 
 V. Ford, 4 Sim. 390 
 
 Fearns v. Young, 9 Ves. 549 ; 10 Yes. 1«4 
 Featherstonliaugh v. Fenwick, 17 Ves. 298 . 
 Fellows V. Mitchell, 2 Vern. 516 ; IP. W. 82 . 
 Fenwick v. Clarke, 31 L. J. Ch. 728 ; 10 W. R. 636 ; 6 L, 
 593 ' . 
 
 11. Greenwell, 10 Bea. 412 .... 
 
 Fergus v. Gore, 1 Sc. & L. 109 
 
 Ferguson v. Ferguson, 10 Ch. 661 ; 44 L. J. Cli. 615 
 
 Fermor, Ex parte, Jac. 404 
 
 Ferrahy v. Hobson, 2 Ph. 235 . 
 Ferrars v. Cherry, 2 Vern. 384 
 Fasting v. Allen, 5 Ha. 579 
 Fettiplace v. Gorges, 3 B. C. C. 8 . 
 Field V. Donoughmore, 1 Dr. & War. 227 
 
 ■ V. Evans, 15 Sim. 375 . 
 
 V. Peckett, 29 Bea. 576 . 
 
 . V. Sowle, 4 Russ. 112 . 
 
 Finch V. Finch, 15 Ves. 43 
 
 Finlay v. Howard, 2 Dr. & War. 4S0 . 
 
 Finney, Re, 3 Giff. 465 . 
 
 Firmin v. Pulham, 2 D. G. & Sm. 99 . 
 
 Fisher v. Brierley, 29 L. J. Ch. 477 . 
 
 Fitch V. Weber, 6 Ha. 145 . 
 
 Fitzgerald v. Burk, 2 Atk. 397 
 
 V. Chapman, 1 Ch. D. 563 ; 45 L. J. Ch. 23 ; 33 L. 
 
 N. S. 587 : 24 W. R. 130 . 
 
 V. Field, 1 Russ. 430 . 
 
 V. Fitzgerald, 6 Ir. Ch. R. 145 . 
 
 V. Pringle, 2 Moll. 534 . 
 
 Fitzgibbon v. Scanlan, 1 Dow. 261 . 
 
 Fleet V. Perrins, L. R. 3 Q. B. 536 ; L. R. 4 Q. B. 500 ; 38 L. J, 
 
 B. 233 ; 20 L. T. N. S. 814 ; 17 W. R. 862 
 
 251 
 
 T. 
 
 Q. 
 
 Fletcher v. Fletcher, 4 Ha. 67 
 
 235 
 160 
 143 
 137 
 73 
 
 264 
 
 31,. 34, 35, 279 
 
TABLE OF CASES. xlv 
 
 PAGE 
 
 Fletehsr v. Green, 33 Bea. 426 . . . . 284, 327, 330, 331 
 
 Flocton V. Banning, 8 Ch. 323 n 286 
 
 Floyeru. Bankes, 8 Eq. 115 153 
 
 Fluid V. Fluid, 7 L. T. N. S. 590 ; 11 W. R. 250 . . . . 135 
 Foley V. Burnell, 1 B. C. C. 274 278 
 
 V. Hill, 2 H. L. C. 28 302, 339 
 
 V. Inland Revenue, Commissioners of, L. R. 3 Ex. 263 . . 215 
 
 V. Pany, 2 M. & K. 133 ; 5 Sim. 13S . . . 53, 181 
 
 1). Wontner, 2 J. & W. 248, 214 
 
 Foligno, Re, 32 Eea. 131 233, 234 
 
 Foljambe v. WiUoughby, 2 S. & S. 165 . . . 167, 177 
 
 Follett V. Tyrer, 14 Sim. 125 . . .... 271 
 
 Forbes v. Ball, 3 Mer. 437 ... .... 52 
 
 V. Forbes, 6 W. R. 92 ; 3 Jur. N. S. 120.! ; 30 I-. T. 176 . 33 
 
 V. Limond, 4 D. M. & G. 315 ; 2 W. R. 70 ; 22 L. T. 153 ; 
 
 18 Jur. 33 38 
 
 V. Moffatt, Tudor, R. P. Ca. 837 ; 18 Yes. 301 . . .168 
 
 V. Peacock, 1 Ph. 717 126 
 
 V. Ross, 2 B. C. C. 430 136, 137, 286 
 
 V. Steven, 10 Eq. 178 ; 18 "W. R. 508 71 
 
 Ford r. Chesterfield, 16 Bea. 516 ; 22 L. J. Ch. 630 ; 1 W. R. 
 
 217 ; 20 L. T. N. S. 228 11 
 
 V. Olden, 3 Eq. 463 ; 36 L. J. Ch. 651 ; 15 L. T. N. S. 
 
 558 186 
 
 V. Ryan, 4 Ir. Ch. R. 342 126 
 
 u. Tynte, 2 H. & M. 324 170 
 
 Forder v. Wade, 3 B. C. C. 520 270 
 
 ForJham v. Speight, W. N. 1875, 140 ; 23 AV. R. 782 . . 53, 57 
 
 Fordyce v. "Willis, 3 B. C. C. 577 25, 242 
 
 Forrest v. Elwes, 2 Mer. 68 . . 199 
 
 V. Forrest, 13 W R. 380 65, 66 
 
 Forshaw v. Higginson, 8 D. M. & G. 8J7 ; 20 Eea. 485 ; 5 ^V. R. 
 
 424 ; 26 L. J. Ch. 342 ; 29 L. T. N. S. 43 ; 3 Jur. N. S. 476 89, 
 
 101, 120, 205, 206, 207, 215 
 Forster v. Abraham, 17 Eq. 351; 43 L. J. Ch. 199 ; 22 W. R. 386 113, 
 
 211 
 
 • V. Davies, 4 D. F. & J. 139 ; 31 L. J. Ch. 276 ; 8 Jur. 
 
 N. S. 65 ; 10 W. R. 130 ; 5 L. T. N. S. 532. . . 216 
 
 V. Hale, 3 Ves. 636 25 
 
 V. Ridley, 4 D. J. & Sm. 452 . .... 198 
 
 Fortescue v. Bamett, 3 M. & K. 36 . . . . 28, 31 
 
 Foss 0. Foss, 15 I. Ch. R. 215 259 
 
 Foster v. Cockerell, 3 CI. & F. 456 ; 9 Bligh, N. R. 332 . 289, 291 
 
 V. Dawber, 1 Dr. & Sm. 172 ; 8 ^Y. R. 646 ... 10 
 
xlvi 
 
 TABLE OF CASES. 
 
 PAGE 
 
 286 
 39 
 
 Foster v. Foster, 2 B. C. C. 616 
 
 V. Ley, 2 Bing. N. C. 269 
 
 and Lister, Be, 6 Ch. D. 87 ; 40 L. J. Ch. 480 ; 36 L. T. N. 
 
 S. 582 ; 25 W. R. 553 
 
 V. VassaU, 3 Atk. 589 
 
 Fowkes V. Pascoe, 10 Ch. 343 ; 44 L. J. Ch. 367 ; 32 L. T. N. S. 
 
 545 ; 33 W. B. 538 65, 66, 68 
 
 Fowler 1). Beynal, 3 Macn. &G. 500 . • . . . 141,142 
 
 V. Wyatt, £4 Bea. 232 . . 
 
 Fox V. BucUey, 3 Ch. D. 511 ; 25 W. R. 107 . 
 
 — V. Fox, 27 Bea. 301 
 
 — .,. Mackreth, 2 B. C. C. 400 ; 2 Cox, 320 ; 4 B. 
 Ves. Jun. 69 ... . 
 
 Foy, Be, W. N. 1875, 150 . 
 Francis v. Grover, 5 Ha. 39 
 Franklin v. Frith, 3 B. C. C. 433 . 
 
 u Green, 2 Vern. 136 . 
 
 Franklyn, Ex parte, 1 D. G. & Sm. 528 
 
 Franks v. BoUans, 3 Ch. 717 ; 16 W. R. 1158 ; 18 L, 
 
 Fraser v. Palmer, 4 Y. & C. Ex. 515 
 
 Freake v. Cranefeldt, 3 M. & Cr. 499 
 
 Freeland v. Pearson, 7 Ec[. 246 
 
 Freeman v. Fairlie, 3 Mer. 29 . 
 
 V. Tatham, 5 Ha. 329 . 
 
 Freke v. Carhery, 16 Eq. 461 ; 21 W. R. 835 
 French, Ex parte, 7 Sim. 510 
 
 . Be, 15 Eq. 68 
 
 Frith V. Cartland, 2 H. & M. 417 
 
 45 
 
 244 
 
 . 237 
 220, 336 
 . 53 
 P. C. 258 ; 1 
 
 182, 192, 276 
 
 . 134 
 
 . . 311 
 
 . . 283 
 
 . 176, 178 
 
 . . 131 
 
 T. N. S. 623 184 
 
 . 200 
 
 . . 39 
 
 . 121 
 
 228, 275 
 
 . 25 
 
 . . 153 
 
 . 135 
 
 109, 110 
 
 . 300, 301, 304 
 
 and Oshorne, Re, 3 Ch. D. 618 ; 45 L. J. Ch. 760 ; 35 L. T. 
 
 N. S. 146 ; 24 W. R. 1061 . 123 
 
 Fromow, Re, 8 W. R. 272 1£3 
 
 Fry V. Fry, 27 Bea. 144 ; 28 L. J. Ch. 591 ; 5 Jur. N. S. 1047 ; 
 
 34 L. T. N. S. 51 . . . ^ . 
 Fryer v. Bnttar, 8 Sim. 442 
 
 Re, 3 K. & J. 317 ; 5 W. R. 552 ; 26 L. J. Ch. 398 
 
 N. S. 485 
 
 20 Eq. 468 ; 45 L. J. Ch. 96 . . . 
 
 Fuller V. Knight, 6 Bea. 205 
 
 FuUerton v. Martin, 1 Dr. & Sm. 31 ; 1 "W. R. 378 ; 8 ^\ 
 
 29 L. J. Ch. 469 ; 6 Jnr. N. S. 265 ; 1 L. T. N. S. 531 
 Furley jj. Hyder, 41 L. J. Ch. 483 . 
 
 Fussell V. Dowding, 14 Eq. 421 
 
 Futter V. Jackson, 6 Bea. 424 
 
 Fyler v. Fyler, 3 Bea. 550 
 
 100, 114, 241 
 . 93 
 
 ; 3 Jur. 
 19, 119, 238, 239, 328 
 . 134 
 143, 335 
 
 R. £89 ; 
 
 . 97 
 . 177 
 . 235 
 . 276 
 
 142, 303, 329, 332, 333 
 
TABLE OF CASES. xlvii 
 
 PAGE 
 
 Gaffee, Re, 1 Macn. & G. 541 250, 266 
 
 Galliers v. Moss, 9 B. & C. 267 22 
 
 Gainsford v. Freeman, L. R 1 C. P. 129 222 
 
 Gamston, Rector of, 1 Ch. D. 477 106 
 
 Gardiner i;. Downes, 22 Bea. 395 ; 4 W. R. 621 ; 27 L. J. Cli. 230 
 
 105, 206, 215 
 
 V. FeU, IJ. & W. 22 323 
 
 Gardner v. Gardner, 1 Giff. 126 ; 7 "W. R. 692 ; 33 L. T. 313 
 
 247, 248, 249 
 
 Garland, Ex parte, 10 Ves. 110 SO, 137 
 
 Garlick v. Lawson, 10 Ha. App. XV 234 
 
 Garmstone v. Gaunt, 1 Coll. 577 164 
 
 Garner v. Hannyngton, 22 Bea. 627 226 
 
 V. Moore, 3 Dr. 277 ; 3 W. R. 497 100 
 
 Garrard v. Lauderdale, 3 Sim. 1 ; 2 R. & M. 451 . . . . 41 
 
 -v. Tuck, 8 C. B. 231 315 
 
 Garratt v. Lanoefield, 2 Jur. N. S. 177; 27 L. T. N. S. 12; 20 Jm-. 
 
 N. S. 177 121 
 
 Garrett •;;. Wilkinson, 2 D. G. & Sm. 244 65 
 
 Garriok v. Taylor, 29 Bea. 79 ; 7 Jur. N. S. 1174 ; 31 L. J. Ch. 68 ; 
 
 10 W. R. 39 67, 68 
 
 Garth v. Cotton, 1 Ves. Sen. 555 ; 1 W. & T. L. C. Eq. 75 ; 
 
 1 Dick. 199 222, 295 
 
 Garty, Re, 10 L. T. N. S. 331 204, 215 
 
 Gascoigne v. Thwing, 1 Vern. 366 68 
 
 Gaskell v. Gaskell, 2 Y. & J. 502 33 
 
 ■ — — V. Harman, 11 Ves. 507 116 
 
 Gaston v. Frankum, 2 D. G. & Sm. 561 262 
 
 Gaunt V. Taylor, 2 Bea. 346 ; 1 Y. & C. C. C. 538 ; 7 L. J. Ch. 2 16 
 Geaves, Ex parte, 8 D. M. & G. 291 ; 25 L. J. Bk. 53 ; 4 W. E. 536 ; 
 
 27 L. T. N. S. 129 ; 20 Jur. N. S. 651 . . . 137, 218, 219 
 
 Gee V. Liddell, 35 Bea. 621 28 
 
 Gerrard I). Gerrard, 2 Vern. 458 164 
 
 George III., goods of, 1 Add. 255 ; 3 Sw. & Tr. 199 ... 242 
 George v. Evans, 4 Y. & C. 211 193 
 
 e. Howard, 7 Price, 651 61, 62 
 
 V. Milbanke, 9 Ves. 193 36 
 
 Re, 5 Ch. D. 837 ; 37 L. T. N. S. 204 . . . 172, 173 
 
 Ghost V. Waller, 9 Bea. 497 ' 18 
 
 Gibbins v. Taylor, 22 Bea. 344 ; 4 W. R. 432 . . . . 99^ 329 
 Gibbs V. Daniel, 4 Giff. 36 ; 10 W. R. 688 ' 190 
 
 V. Glamis, 11 Sim. 584 41 
 
 V. Rumsey, 2 V. & B. 294 60 
 
 Gibson v. Bott, 7 Ves. 89 93^ 94^ 95^ 97 
 
xlviii TABLE OF CASES. 
 
 PAGE 
 
 Gibson v. Jeyes, 6 Ves. 266 184, 189 
 
 Giddings v. Giddings, 3 Euss. 241 .... 74, 75, 78, 150 
 
 Gilbert v. Lewis, 1 D. J. & Sm. 48 ; 11 ^Y. R. 223 ; 9 Jiir. N. S. 
 
 187 ; 7 L. T. N. S. 541 . 254 
 
 V. Orerton, 2 H. & M. 110 . . . . 28, 35 
 
 Gill V. Continental Gas Co., L. R. 7 E.x. 332 ; 4 L. J. Ex. 176 . 291 
 
 - V. Newton, 12 Jur. N. S. 220 280 
 
 GUlespie v. Alexander, 3 Euss. 130 329 
 
 Gilliland v. Crawford, I. E. 4 Eq. 42 101 
 
 Gisbome v. Gisborne, 2 App. Ca. 300 ; 40 L. J. Cli. 550 ; 18 ^y. E. 
 
 855 ; 22 L. T. N. S. 643 . . . . 177 
 
 Gladding v. Yapp, 5 Mad. 59 .61 
 
 Gladdon v. Stoneman, 1 Mad. 143 . . . . .279 
 
 Glaister v. Hewer, 8 Ves. 195 n 62 
 
 Glegg ■». Eees, 7 Ch. 71 ; 40 L. J. Oh. 243 ; 25 L. T. N. S. 012 ; 
 
 20 W. E. 193 .... . . . 41, 42 
 
 Glenorcby v. Bosville, 1 W. & T. L. 0. 1 . . . 43, 48 
 Glover v. Hall, 16 Sim. 568 255 
 
 V. Monckton, 10 Moore, 453 ; 3 Bing. 13 ; 3 L. J. C. P. 
 
 189 ... . 4 
 
 Ee, 2 J. & H. 186 34 
 
 1). Eogers, 11 Jur. 1000 ; 17 L. .7. Ch. 2 ... 11 
 
 Godden v. Crowhnrst, 10 Sim. 642 177 
 
 Godfrey v. Godfrey, 11 W. E. 554 ; 2 N. E. 16 ; 8 L. T. K. S. 200 
 
 53, 57 
 
 . V. Watson, 3 Atk. 518 ... . . . 197 
 
 Goldsmid ti. Goldemid, 19 Ves. 368 ... 104 
 
 Goodenough v. Tremamondo, 2 Bea. 512 . . . . . . 92 
 
 Goodfellow u Burchett, 2 Vern. 298 . . 169 
 
 Goodson V. EUisson, 3 Euss. 583 . . . . 224, 230 
 
 Goodtitle v. Whitby, 1 Burr. 226 . ... 8 
 
 Goodwia v. GosneU, 2 Coll. 457 . . .... 282 
 
 Ee, 17 Eqi. 345 .. . . .83 
 
 Goodyere v. Lake, Amb. 584 284 
 
 Goold V. Teague, 5 Jur. N. S. 116 ; 7 W. E. 84 ; 32 L. T. £51 . 22 
 Gordon v. Eaynes, 3 P. W. 134 '161 
 
 V. Scott, 12 Moo. P. C. 1 77 
 
 Gore V. Bowser, 3 Sm. & G. 6 ; 24 L. J. Ch. 316 ; 3 W. E. 157 . 14 
 
 Ex parte, 3 M. D. & D. 77 188 
 
 V. Knight, 2 Vern. 535 251 
 
 Gorge's case, Cro. Car. 550 .62 
 
 Gosling V. Carter, 1 Coll. 644 128 
 
 V. Gosling, 3 Dr. 335 .32 
 
 ■ ■ V. Gosling, Johns. 265 ; 10 W. E. 785 . . . . 84 
 
TABLE Of" CASES. 
 
 Xiix 
 
 29 L. J. Ch. 
 
 467 
 
 PAGE 
 
 308 
 
 15 
 
 201 
 
 Gough V. Bult, 16 Sim. 323 
 
 V. Smith, W. N. 1872, 18 . . . 
 
 Uould V. Fleetwood, 3 P. "W. 251 n. . . . 
 Goiilder v. Camm, 1 D. F. & J. 146 ; 8 W. R. 156 
 
 135 ; 6 Jur. N. S. 113 ; 1 L. T. N. S. 224 
 Governesses' Benevolent Institution v. Euslibridger, 18 Bea. 
 Gower v. Mainwaring, 2 Ves. Sen. 87 . 
 Grabowski, Be, 6 Eq. 12 ; 37 L. J. Ch. 926 
 Grace, Ex parte, 1 B. & P. 376 
 Graham v. Graham, 16 Bea. 550 
 
 V. Londonderry, 2 B. C. C. 246 
 
 Re, 20 W. R. 289 
 
 Grant v. Grant, 34 Bea. 623 
 
 V. Grant, 3 Russ. 598 .... 
 
 Granville v. McNeile, 7 Ha. 156 ; 18 L. J. Ch. 406 
 Grave v. Salisbury, 1 B. C. C. 425 ... 
 
 Graves v. Dolphin, 1 Sim. 66 . 
 
 V. Graves, 13 I. Ch. R. 182 ... 
 
 V. Griffith, IJ. & "W. 646 
 
 Gray, Ex parte, 4 B. & C. 778 ; 2 M. & A. 283 . 
 
 V. Haig, 20 Bea. 219 
 
 Grayburn v. Clarkson, 3 Ch. 605 ; 37 L. J. Ch. 550 ; 18 L. T. N. S. 
 
 494 89, 114, 115 
 
 Great Eastern Railway Co. v. Turner, 8 Ch. 149, 153 ; 42 L. J. Ch. 
 
 83 ; 27 L. T. N. S. 697 ; 21 W. R. 163 . . . . 99, 219 
 
 Greaves v. Mattison, 2 T. Jones, 201 162, 165 
 
 Green v. Angell, W. N., 1867, 305 133 
 
 V. Belchier, 1 Atk. 505 163 
 
 V. Britten, 1 D. J. & Sm. 649 94, 245 
 
 . V. Carlill, 4 Ch. D. 882 ; 46 L. J. Ch. 477 . . 247, 248, 249 
 
 55, 267 
 
 . 275 
 
 . 103 
 
 . 92 
 
 . 76 
 
 . 205 
 
 . 149 
 
 . 256 
 
 . 32 
 
 . 280 
 
 12, 208 
 
 . 169 
 
 . 84 
 
 . 55 
 
 . 280 
 
 . 16 
 
 . 100 
 
 V. Green, 5 Ha. 400 n. . 
 
 V. Marsden, 1 Dr. 646 ; 1 W. R. 511 
 
 Re, 2 D. F. & J. 121 .. . 
 
 V. Stephens, 17 Ves. 76 
 
 Greenham v. Gibbeson, 10 Bing. 363 
 GreenhiU v. Waldoe, Pr. Ch. 367 . 
 Greenhouse, Ex parte, 1 Mad. 92 
 Greenwood v. Evans, 4 Bea. 44 . . , 
 
 1!. Wakeford, 1 Bea. 576 
 
 Greetham v. Colton, 34 Bea. 615 ; 13 W. R. 
 Gregory v. Gregory, G. Coop. 201 ; Jao. 631 
 
 V. Henderson, 4 Taunt. 772 
 
 1009 
 
 . . 264 
 52, 56 
 . . 110 
 . 48 
 . . 138 
 . 166 
 216 
 . 150, 151 
 205, 215 
 . 127, 128 
 183, 193, 194, 195, 317 
 3 
 
 V. Lockyer, 6 Mad. 90 252 
 
 Greig v. Somerville, 1 R. & My. 338 329 
 
 d 
 
1 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Greisley 1). Chesterfield, 13 Bea. 28S 96,115 
 
 Grenville v. Blythe, 16 Yes. 224 271 
 
 Gresley v. Mousley, 4 D. & J. 78 ; 3 D. F. & J. 433 ; 31 L. J. Cli. 
 
 537 ; 8 Jur. N. S. 320 189, 190, 313 
 
 Grey v. Grey, 2 Swans. 594 60, 61, 62, 63, 65 
 
 V. Grey, Finclt, 338 63 
 
 Grier, Re, L E. 6 Eq. 1 ; L. R. 5 H. L. 688 ... 46, 50 
 
 Griffin, Ex parte, 2 Gl. & J. 114 
 
 V. Griffin, 1 Scli. & L. 352 . 
 
 Griffiths V. Evans, 5 Bea. 241 . 
 
 V. Porter, 25 Bea. 236 
 
 V. Vere, 9 Ves. 127 . 
 
 Grimoldby, Rector of, Re, W. N., 1876, 96 
 
 Groom v. Booth, 1 Drew. 548 ; 1 W. R. 423 
 
 Grosvenor v. Sherratt, 28 Bea. 659 
 
 Grove v. Price, 26 Bea. 103 ... 
 
 Grover v. Hugell, 3 Russ. 432 
 
 Groves v. Groves, 3 Y. & J. 163 
 
 Guardian Assurance v. Avonmore, 6 Ir. R. Eq. 391 
 
 Guest V. Smythe, 5 Ch. 551 ; 46 L. J. Ch. 30 
 
 25 W. R. 68 
 
 Guibert, Re, 16 Jur. 852 ... 
 Gully V. Cregoe, 24 Bea. 185 . 
 Gunson v. Simpson, 5 Eq. 332 
 Gumer, Ex parte, 1 M. D. & D. 497 . 
 Gurney v. Oranmore, 5 Ir. Ch. R. 436 . 
 Gwillam d. Holland, 2 Ves. Jun. 263 
 G\vyther v. Allen, 1 Ha. 505 . 
 
 35 L. T. 
 
 . . 17 
 
 . 74 
 
 . . 53 
 
 19, 231, 334 
 
 . . 154 
 
 . 106 
 
 125, 136 
 
 . 189 
 
 . 88, 176 
 
 . 189 
 
 63, 67, 68, 85 
 
 . 36 
 
 N. S. 590 ; 
 
 . . 185, 191 
 
 . 212 
 
 . 53, 57 
 
 . 204 
 
 . . 219 
 
 . 38 
 
 . . 168 
 
 . 147 
 
 H., Re, 1 Ch. D. 276 ; 45 L. J. Ch. 749 ; 24 W. R. 317 . . 272 
 
 H. «. W., 3 K. & J. 382 84 
 
 Hackett v. McNamara, LI. & G. t. Plunk. 283 . . . .124 
 Haddelsey v. Adams, 22 Bea. 266 ; 27 L. T. N. S. 148 . . . 8 
 Hadley v. Bank of Scotland, 3 D. J. & Sm. 70 .... 72 
 
 Ex parte, 5 D. G. & Sm. 67 . . . . 204, 205, 208 
 
 Hadow V. Hadow, 9 Sim. 438 177 
 
 Hagell V. Currie, 2 Ch. 449 ; 36 L. J. Ch. 448 ; 16 L. T. N. S. 307 ; 
 
 15 W. R. 605 274, 275 
 
 Hagley v. West, 3 L. J. Ch. 63 311 
 
 Haig V. Swiney, 1 S. & S. 487 252 
 
 Haigh V. Kaye, 7 Ch. 469 ; 41 L. J. Ch. 567 ; 26 L. T. N. S. 675 ; 
 
 20 W. R. 597 26/85 
 
 Haldenby v. Spofl'orth, 1 Bea. 395 122 
 
 Haley v. Bannister, 4 Mad. 275 154 
 
TABLE OP CASES. 
 
 li 
 
 PAGE 
 
 Halford v. Stains, 16 Sim. 488 155 
 
 Hall V. Carter, 2 Atk. 354 163, 166 
 
 V. Dewes, Jac. 189 138, 214 
 
 V. Hallett, 1 Cox, 134 90, 193 
 
 V. Hewer, Amb. 202 159 
 
 V. Hurt, 2 J. & H. 76 164 
 
 V. May, 3 K. & J. 585 ; 5 W. R. 869 .... 23, 122 
 
 V. Noyes, 3 Ves. 748 cited 183 
 
 Hall's case, 1 Macn. & G. 307 140 
 
 Haly u. Barry, 3 Ch. 452 ; 37 L. J. Cli. 723 ; 18 L. T. N. S. 490 ; 
 
 16 W. E. 654 291 
 
 Hamilton v. Buckmaster, 3 Eq. 323 ; 36 L. J. Cb. 58 ; 15 L. T. 
 
 177 ; 15 W. R. 149 120 
 
 V. Denny, 1 B. & B. 199 70, 76 
 
 V. Try, 2 Moll. 458 207 
 
 • V. Royse, 2 Sch. & L. 327 299 
 
 ■ ■ V. Waring, 2 Bli. 196 83 
 
 V. Wrigbt, 9 CI. & F. Ill 182 
 
 Ilammersley v. De Biel, 12 CI. & F. 45 46 
 
 Hampshire v. Bradley, 2 Coll. 34 223 
 
 Hanbury v. Kirkland, 3 Sim. 265 19, 238, 240 
 
 Hancbett r. Briscoe, 22 Bea. 496 319 
 
 Hancock i;. Hancock, 5 Vin. Abr. 292 169 
 
 Hancocks v. Lablaobe, L. R. 3 C. P. Div. 197 . . . .264 
 
 Hands v. Hands, T. & R. 437 n 56 
 
 Hannah v. Hodgson, 30 Bea. 19 224 
 
 Hanover, King of, v. Bank of England, 8 Eq. 350 ; 21 L. T. N. S. 106 204 
 
 Hansard v. Kemeys, 2 Wils. 106 165 
 
 Hansen v. Hansell, V. C. M., June, 1875 208 
 
 Hanson v. Beverley, Sugd. V. & P. 848, llth ed 125 
 
 Harbin v. Darby, 28 Bea. 325 ; 29 L. J. Ch. 622 ; 8 W. R. 512 ; 2 
 
 L. T. N. S. 531 200 
 
 Haroourt v. White, 28 Bea. 303 ; 30 L. J. Ch. 681 ; 8 W. E. 715 
 
 308, 320 
 Harden v. Parsons, 1 Ed. 148 . 
 Harding v. Glyn, 2 W. & T. L. C. 962 ; 1 Atk. 469 
 
 •.,. Pingey, 10 Jur. N. S. 372 
 
 Hardingham v. NichoUs, 3 Atk. 304 
 Hardwick v. Mynd, 1 Anst. 109 
 Hardwicke v. Vernon, 14 Ves. 510 
 Hardy i). Caley, 33 Bea. 365 . 
 
 V. Reeves, 4 Ves. 466 ; 5 Ves. 426 
 
 Harford v. Lloyd, 20 Bea. 310 . 
 Hargreaves v. Michell, 6 Mad. 326 
 
 . 136 
 
 52, 56, 57 
 
 . 280 
 
 . 299 
 
 18, 113 
 . 228 
 
 19, 303 
 . 299 
 
 99, 301 
 . 39 
 d 2 
 
lii TABLE OF CASES. 
 
 PAGE 
 
 Harland v. Trigg, 1 B. C. C. C. 142 53, 56 
 
 Hamett v. MacDougall, 8 Bea. 187 , 267 
 
 Harper v. Hayes, 2 D. P. & J. 542 ; 9 "W. R. 504 ; 7 Jur. N. S. 
 
 245 ; 3 L. T. N. S. 530 111,112,114 
 
 Harrington v. Atherton, 2 D. J. & Sm. 352 ; 11 L. T. N. S. 271 ; 
 
 10 Jur. N. S. 1093 ; 13 W. R. 62 . . 95, 115 
 
 V. Harrington, L. R. 5 H. L. 87 ; 40 L. J. Cli. 716 . 51 
 
 Harris v. Harris, 29 Bea. 107 ; 7 Jur. N. S. 955 . 139, 209, 231 
 
 V. Poyner, 1 Drew. 174 94 
 
 Harrison v. Barton, 1 J. & H. 287 70 
 
 V. Forth, Pr. Ck. 51 296 
 
 ■ v. Graham, 1 P. W. 241, n. ; 3 Hill's MSS. 239 . 14, 19 
 
 V. Gurney, 2 J. & W. 563 245 
 
 V. Harrison, 2 H. & M. 237 243 
 
 V. Naylor, 3 B. C. C. 108 168 
 
 . V. Randall, 9 Ha. 397 101, 102 
 
 . Re, 22 L. J. Ch. 69 ; 1 W. R. 58 210 
 
 V. Round, 2 D. M. & G. 190 ; 1 W. R. 26 ; 22 L. J. Cli. 
 
 322 ; 20 L. T. N. S. 118 158 
 
 V. Southampton, Mayor of, 4 D. M. & G. 137 . . 104 
 
 V. Thexton, 4 Jur. N. S. 550 90 
 
 Harrop v. Howard, 3 Hare, 624 266 
 
 Hart V. Denhan, W. N. 1871, 2 273 
 
 V. Middlehurst, 3 Atk. 371 46 
 
 V. Tribe, 18 Boa. 215 ; 24 Bea. 185 ; 1 D. J. & Sm. 418 ; 
 
 2 W. R. 289 ; 23 L. J. Oh. 462 ; 23 L. T. 124 . . 53, 57 
 Hartington, Rector of, Ex parte, W. N. 1875, 40 . . . . 106 
 Hartley v. Burton, 3 Ch. 368 ; 16 W. R. 876 . . . . 224 
 
 V. Hurle, 5 Ves. 545 256 
 
 Harton v. Harton, 7 T. R. 652 3, 7 
 
 Harvey v. Aston, 1 Atk. 361 168 
 
 V. Harvey, 2 P. W. 21 166, 171 
 
 Hastie'W. Hastie, 2 Ch. D. 304; 34 L. T. N. S. 747; 24 W. R. 
 
 564 304 
 
 HatfeUd v. Minet, 8 Ch. D. 136 ; 47 L. J. Ch. 612 ; 38 L. T. N. S. 
 
 629 ; 26 W. R. 701 180 
 
 Hattatt, Re, W. N. 1870, 14 ; 18 W. R. 416 211 
 
 Hawkes v. Hubback, 11 Eq. 5 ; 40 L. J. Ch. 49 ; 23 L. T. N. S. 
 
 642 ; 19 W. R. 117 250, 251, 266 
 
 Hawkins i;. Chappel, 1 Atk. 623 116 
 
 V. Kemp, 3 East, 410 12, 118 
 
 1). Luscombe, 2 Swans. 391 7 
 
 Hay, Ex parte, 3 D. G. & Sm. 485 179 
 
 Hay's case, 10 Ch. 593 187 
 
TABLE OF CASES. 
 
 liii 
 
 PAGE 
 
 Hayest). Oatley, 14Eq. 1; 41 L. J. Ch. 510 . . . .232 
 
 Heap V. Jones, 5 W. E. 106 11 
 
 Heard v. Pilley, 4 Ch. 548 ; 38 L. J. Ch. 718 ; 21 L. T. N. S. 68 ; 
 
 17 W. R. 750 68 
 
 Hearle v. GreenToank, 3 Atk. 716 171 
 
 Heartley u. Nicliolsou, 19 Eq. 2.33 ; 44 L. J. Ch. 277; 31 L. T. 
 
 N. S. 822 ; 23 W. R. 374 27, 28, 31 
 
 Heath v. Crealook, 10 Ch. 22 ; 44 L. J. Ch. 157; 31 L. T. N. S. 
 
 650 ; 23 W. R. 95 294, 295 
 
 309 
 
 . 286 
 . 260 
 . 325 
 . 239 
 . 159 
 . 163 
 . 110 
 . 165 
 . 199 
 . 69 
 . 201 
 . 159 
 14, 241 
 . 200 
 . 41 
 
 ■ • V. Henly, 1 Ch. Ca. 20 . . . 
 
 Heathcote v. Hulme, IJ. & W. 122 . 
 Heatley v. Thomas, 15 Ves. 596 . 
 Heaton, Ex parte, Buck. 386 
 
 V. Marriot, 1 P. W. 82 
 
 Hehblethwaite v. Cartwiight, Forrester, 30 
 Hellier v. Jones, 1 Eq. Ca. Ab. 337 
 Hellmann, Re, 2 Eq. 363 ; 39 L. J. Ch. 760 
 Hemming v. Griffith, 2 Giff. 403 . 
 Henckell v. Daly, 1 Moore, P. C. C. 51 . 
 Henderson v. Eason, 17 Q. B. 701 ; 2 Ph. 308 
 
 V. Mclver, 3 Mad. 275 . 
 
 Heneage v. Huloke, 2 Atk. 456 
 
 Hennessey v. Bray, 33 Bea. 96 ; 11 W. R. 1053 
 
 Henrion v. Bonham, Drur. 476 
 
 Hemiques v. Bensusan, 20 W. R. 350 
 
 Hepworth v. Hepworth, 11 Eq. 10 ; 40 L. J. Ch. Ill ; 23 L, 
 
 N. S. 388 
 
 Hercy v. Dinwoody, 2 Ves. Jun. 87 
 
 Heritage v. Paine, 2 Ch. D. 594 ; 45 L. J. Ch. 295 ; 34 L. T. N. S, 
 Hervey-Bathurst v. Stanley, 4 Ch. D. 251 ; 2 App. Ca. 698 
 
 l" J. Ch. 162 ; 35 L. T. N. S. 709 ; 25 W. E. 482 . 
 Hesse v. Briant, 6 D. M. & G. 623; 5 W. R. 108; 28 L. T. N 
 
 297 
 
 Heveningham v. Heveningham, 2 Vern. 355 
 Hewet V. Ireland, 1 P. W. 426 
 Hewitt V. Morris, T. & R. 241 . 
 
 Heysham v. Heysham, 1 Cox, 179 
 
 Heywood v. Heywood, 29 Bea. 9 ; 30 L. J. Ch. 155 ; 7 Jur. N 
 
 228 ; 9 W. R. 62 ; 3 L. T. N. S. 429 . 
 Hihbert v. Cooke, 1 S. & S. 552 
 
 V. Hibbert, 3 Mer. 681 
 
 Hichens v. Congreve, 1 R. & M. 150, n. .... 
 Hickley v. Hickley, 2 Ch. D. 190 ; 45 L. J. Ch. 401 ; 34 L. T. N 
 
 441 ; 24 W. E. 604 
 
 T. 
 
 947 
 ; 46 
 
 63 
 
 317 
 140 
 
 157 
 
 190 
 165 
 159 
 95 
 175 
 
 S. 
 
 . 153 
 
 . 107 
 . 200 
 
 187, 274 
 
 S. 
 
 113, 183 
 
liv TABLE OF CASES. 
 
 PAGE 
 
 Hickman v. Upsall, 20 Eq. 136; 2 Ch. D. 617; 23 W. R. 776; 4 
 
 CL D. 144; 46 L. J. Ch. 245; 35 L. T. N. S. 919; 25 W. R. 
 
 175 236, 314, 323 
 
 Hicks V. Hicks, 3 Atk. 274 286 
 
 V. SalUtt, 3 D. M. & G. 782; 1 W. R. 226; 2 ^Y. R. 173; 23 
 
 L. J. Ch. 57; 22 L. T. N. S. 322 323 
 
 Higginbotham v. Hawkins, 7 Ch. 676; 41 L.J. Ch. 828; 20 W. R. 
 
 955 . . • 313 
 
 Higgiason v. Barnehy, 2 S. & S. 516 50 
 
 Highway v. Banner, 1 B. C. C. 584 45 
 
 Hill V. Bishop of London, 1 Atk. 618 58, 59 
 
 V. Chapman, 2 B. C. C. 231 174 
 
 V. Crook, L. R. 6 H. L. 265 ; 42 L. J. Ch. 702 .. . 83 
 
 V. Hill, 6 Sim. 144 50 
 
 • V. Hill, I. R. 8 Eq. 146 . . . • . . . 69 
 
 V. Magan, 2 Moll. 460 122 
 
 1). Pritchard, Kay, 394 119 
 
 . Re, W. N. 1874, 228 212 
 
 V. Simpson, 7 Ves. 152 298 
 
 V. Trenery, 23 Bea. 16 327 
 
 HiUman v. Westwood, 24 L. J. Ch. 57; 3 ^Y. R. 41; 24 L. T. N. S. 
 
 154 212 
 
 Hinchcliffe v. Hinchcliffe, 3 Ves. 516 169 
 
 Hinchinhroke v. Seymour, 1 B. C. C. 394 . . . . 160, 163 
 
 Hind V. Selby, 22 Bea. 373 94 
 
 Hinde v. Blake, 4 Bea. 597 275 
 
 Hindmarsh, Re, 1 Dr. & Sm. 129; 8 W. R. 203; 1 L. T. N. S. 
 
 475 309 
 
 Hillings t'. Hinings, 2 H.&M. 32; 10 L. T. N. S. 294 . . . 234 
 
 Hinves v. Hmves, 3 Ha. 609 92, 94 
 
 Hinxman v. Poynder, 5 Situ. 546 53 
 
 iiitchens v. Hitchens, 2 Vern. 403 4 
 
 Hoares case, 2 J. & H. 229 140 
 
 Hohart v. Suffolk, 2 Vern. 644 58 
 
 Hobday v. Peters (No. 2), 28 Bea. 354; 8 W. E. 512 261, 266, 325, 326 
 
 . — - V. Peters (No. 3), 28 Bea. 603 88, 89 
 
 Hobson J). Bell, 2 Bea. 17 112 120 
 
 r. Thelluson, L. R. 2 Q. B. 642 ' 41 
 
 Hodgens v. Hodgens, 4 CI. & F. 323 174^ 263 
 
 Hodgkinson v. National Live Stock Co., 4 D. & J. 422 . . . 183 
 
 Hodgson V. Rawson, 1 Ves. Sen. 44 160 
 
 Hodkinson v. Quinn, 1 J. & H. 303 ; 30 L. J. Ch. 118 ; 9 W. R. 
 
 197 ; 7 Jur. N. S. 65 ; 3 L. T. N. S. 804 128 
 
 Hodson, Re, 9 Ha. 118 . . 204 
 
TABLE OF CASES. Iv 
 
 PAGE 
 
 Hogarth v. PhiUips, 4 Dr. 360 ; 7 W. R. 69 ; 28 L. J. Ch. 195 ; 
 
 4 Jiir. N. S. 1093 ; 32 L. T. 155 31 
 
 Holder v. Durbin, 11 Bea. 594 215 
 
 Holderness v. Lamport, 29 Bea. 129 ; 30 L. J. Ch. 489 ; 7 Jur. 
 
 N. S. 564 67 
 
 Holdsworth v. Goose, 29 Bea. Ill ; 39 L. J. Ch. 188 ; 9 ^Y. E. 
 
 443 ; 7 Jiir. N. S. 301 ; 4 L. T. N. S. 196 . . . . 119 
 
 Holford V. Phipps, 3 Bea, 434 206, 224 
 
 Holgate V. Haworth, 17 Bea. 259 284 
 
 V. Jennings, 24 Bea. 623 94, 96, 143 
 
 Holland, Ex parte, 9 Ch. 307 ; 43 L. J. Bk. 85 ; 30 L. T. N. S. 
 
 106 ; 22 W. R. 425 265 
 
 V. Holland, 4 Ch. 449 ; 38 L. J. Ch. 252 ; 20 L. T. N. S. 
 
 58 ; 17 W. R. 565 333 
 
 V. Hughes, 16 Ves. 114 131 
 
 Hollingsworth v. Shakeshaft, 14 Bea. 497 284 
 
 HoUoway i\ Headington, 8 Sim. 324 32 
 
 Hobnan v. Loynes, 4 D. M. & G. 281 ; 23 L. J. Ch. 529 ; 22 L. T. 
 
 296 ; 2 W. R. 205 190 
 
 Holmes v. Bring, 2 Cox 1 137 
 
 V. Penney, 3 K. & J. 90 ; 5 W. R. 132 ; 26 L. J. Ch. 179 ; 
 
 28 L. T. N. S. 156 ; 3 Jur. N. S. 80 178 
 
 Holt V. Holt, 1 Ca. Ch. 190 73, 78 
 
 Holyman, Ex parte, 8 Jur. 156 188 
 
 Honour v. Honour, 1 P. Wms. 123 ; 2 Vern. 658 . . . .45 
 Honywood v. Honywood, 18 Eq. 306 .... 107, 108 
 
 Hood V. Clapham, 19 Bea. 90 ; 3 W. R. 78 ; 24 L. J. Ch. 193 ; 
 
 24 L. T. 206 92, 232 
 
 V. Oglander, 34 Bea. 513 ; 34 L. J. Ch. 528 . . . 55, 84 
 
 Hooper, Mary, Re, 29 Bea. 656 ; 9 W. E. 723 ; 7 Jur. N. S. 595 . 108 
 
 c. Strutton, 12 W. R. 367 128 
 
 Hooson, Ex parte, 8 Ch. 231 ; 42 L. J. Bk. 19 ; 28 L. T. N. S. 4 ; 
 
 21 W. R. 152 277 
 
 Hope V. Carnegie, 1 Ch. 320 ; 14 L. T. N. S. 117 ; 12 Jur. N. S. 
 
 284 ; 14 W. R, 489 246 
 
 II. Liddell, 21 Bea. 183 ; 25 L. J. Ch. 90 ; 20 Jur. 105 ; 
 
 4 W. R. 145 21 
 
 Hopgood V. Parkin, 11 Eq. 74 ; 22 L. T. N. S. 772 ; 18 W. R. 908 142, 235 
 
 Hopper V. Conyers, 2 Eq. 549 303, 304, 305 
 
 Hora V. Hora, 33 Bea. 88 177 
 
 Horn V. Horn, 2 S. & S. 448 127 
 
 Horner v. Wheelwright, 2 Jur. N. S. 367 221 
 
 HorsfaU, Re, M'Cl. & Y. 292 21 
 
 Horton v. Brocklehurst, 29 Bea. 504 . ... 91, 228 
 
Ivi TABLE OF CASES. 
 
 PAGE 
 
 Horwood i'. West, 1 S. & S. 387 55, 57 
 
 Hoskin, Ke, 5 Ch. D. 229 ; 4C L. J. Cli. 274 ; 35 L. T. N. S. 935 ; 
 
 25 W. R. 779 232, 233, 237 
 
 HosHns V. CampbeU, W. N. 1869, 59 221, 222 
 
 Hotchkin t. Humfrey, 2 Mad. 65 161, 163 
 
 Hotham, Re, 12 E^. 76 103 
 
 Hongliam v. Sandys, 2 Sim. 95 146 
 
 HougMon V. Houghton, Ex parte, 17 Ves. 251 .... 67 
 
 V. Houghton, 11 Sim. 491 70 
 
 House V. Way, 12 Jur. 959 91 
 
 Hovenden r.Annesley, 2 Sch. & L. 629 . . 279, 313, 315, 320, 321 
 Howard v. Bank of England, 19 Eq. 295; 44 L. J. Ch. 329 ; 31 L. 
 
 T. N. S. 871 ; 23 W. R. 303 250 
 
 . V. Digby, 2 CI. & F. 634 . . . . . . 249 
 
 V. Ducane, T. & R. 81 189 
 
 II. Papera, 1 Mad. 142 273 
 
 V. Rhodes, 1 Keen. 581 205 
 
 Howarth, Re, 8 Ch. 415 ; 42 L. J. Ch. 316 ; 28 L. T. N. S. 54 ; 
 
 21 W. R. 490 176 
 
 Howe V. Dartmouth, 7 Ves. 137 - . . . 90, 91, 95, 122, 231 
 Howgrave v. Cartier, 3 V. & B. 79 . . . . 160, 161 
 
 Howkins v. Howkins, 1 Dr. & Sm. 75 280 
 
 Howorth •<.. Deem, 1 Ed. 355 294 
 
 Hubbard v. Young, 10 Bea. 205 92 
 
 Huet V. Fletcher, 1 Atk. 467 317 
 
 Hughes V. Empson, 22 Bea. 181 89,114 
 
 Ex parte, 6 Ves. 617 188,191,192 
 
 ■ — - 11. Howard, 25 Bea. 575 74, 76 
 
 Re, 2 H. & M. 89 291 
 
 c. Stubbs, 1 Ha. 476 34 
 
 V. Wells, 9 Ha. 749 260 
 
 i;. Wynne, T. & R. 307 39 
 
 Huguenm v. Baseley, 14 Ves. 273 .... 81, 183, 190 
 
 Hulkes i\ Barrow, Taml. 264 149 
 
 Hull V. Christian, 17 Eq^. 546 ; 43 L. J. Ch. 861 . . . . 200 
 Huhne v. Hulme, 2 M. & K. 682 212 
 
 r. Tenant, 1 B. C. C. 16 . . . . 256, 257, 261 
 
 Humberston v. Humberston, 1 P. W. 332 49 
 
 Hume V. Richardson, 4 D. F. & J. 29 ; 8 Jur. N. S. 686 ; 31 L. J. 
 
 Ch. 713 ; 10 W. R. 558 ; 6 L. T. N. S. 624 . 97, 132 
 
 V. Rundell, 2 S. & S. 174 167 
 
 Humphrey r. Humphrey, 1 Sim. N. S. 536 252 
 
 Hunt V. Baker, Freem. 62 ....... . 152 
 
 ■ V. Elmes, 2 D. F. & J. 578 ; 8 W. R. 632 ; 2 L. T. N. S. 623 295 
 
TABLE OF CASES. Ivll 
 
 PAGE 
 
 Hurd V. Hurd, 11 "W. R. 50 ; 7 L. T. N. S. 590 . . . . 135 
 
 Hutcheson r. Hammond, 3 B. C. C. 128 160 
 
 Hutchison & Tennant, Be, 8 Ch. D. 543 . . . 53, 54, 56, 57 
 Hynes v. Eedington, 1 J. & L. 569 143 
 
 Imperial Mercantile Credit AsEociation r. Coleman, L. E. 6 H. L. 
 
 189 187, 326 
 
 Incledon v. Northcote, 3 Atk. 430 166, 172 
 
 Ingle V. Partridge, 32 Bea. 661 ; 34 Bea. 411 . . 17, 239, 275 
 
 Ingram, Re, 11 W. E. 980 .136 
 
 209 
 
 68 
 
 336 
 
 53 
 
 Inkersole, Ex parte, 2 G. & J. 230 
 
 Inskip, Ee, 3 Giff. 359 .. • 
 
 Irby V. Irby, 25 Bea. 632; 3 Jur. N. S.'1314 
 
 Irvine p. Sullivan, 8 Eq. 673 
 
 Isaac V. "Wall, 6 Cli. D. 706 ; 46 L. J. Cli. 576 ; 37 L. T. N. S. 227 
 
 25 ^y. R. 844 150, 151 
 
 Isaacs V. AVeatherstone, 10 Ha. App. xxx. 275 
 
 Isaacson v. Harwood, 3 Ch. 225 ; 37 L. J. Ch. 209 .. . 333 
 
 Isherwood r. Oldknow, 3 M. & Selw. 404 9 
 
 Ivy V. Gilbert, 2 P. W. 13 164, 166 
 
 Jackson v. Hamilton, 3 J. & L. 702 . . ... 200 
 
 V. Hobhouse, 2 ]Mer. 488 266 
 
 V. Innes, 1 Bligh, 104 270 
 
 r. Jackson, 9 Yes. 596 70 
 
 V. Noble, 2 Keen, 590 48 
 
 V. Parker, Amb. 687 270 
 
 V. Petrie, 10 Ves. 165 244 
 
 . Ee, 16 "W. E. 572; 18 L. T. N. S. 80 . . . 204 
 
 u Eowe, 2S. &S. 472; 4Euss. 514 . . . . 298 
 
 V. Turnley, 1 Drew. 617 234 
 
 V. Welsh, LI. & G. (Plunk.) 346 76 
 
 Jacobs V. Amyatt, 1 Mad. 376 n 256 
 
 Jacubs V. Eylance, 17 Eq. 341 ; 43 L. J. Ch. 280 . 219, 334, 336 
 
 James v. Dean, 11 Ves. 383 ; 15 Ves. 236 ... . 74, 78 
 
 Ex parte, 8 Ves. 337 185, 188, 191, 192 
 
 V. Frear.son, 1 Y. & C. C. C. 370 13 
 
 140 
 144 
 257 
 
 V. May, L. E. 6 H. L. 328 ; 42 L. J. Ch. 802 . 
 
 Jameson, Ex parte, 19 Eq. 430; 44 L. J. Ch. 480; 23 W. R. 591 
 
 Jarman, Re, 1 Eq. 71 
 
 Jeans v. Cooke, 24 Bea. 513 ; 6 W. R. 175 ; 27 L. J. Ch. 202 ; 4 Jur 
 
 N. S. 57; 30L. T. 253 63,66 
 
Iviii 
 
 TABLE OP CASKS. 
 
 PAGE 
 
 N. S, 
 
 93 
 
 8 
 116 
 30, 32 
 228 
 70 
 126 
 222 
 226 
 
 188 
 279 
 
 Jebb V. TugweU, 20Bea. 84; 4 W. K. 157 ; 25 L. J.'Ch. 109 ; 26 
 
 L. T. N. S. 250; 20 Jur. N. S. 54 . 
 Jefferson v. Morton, 2 "Wms. Sauncl. lie. ii. 
 
 V. Tyier, 9 Jur. 1083 . 
 
 Jeffeiys v. Jefferys, Cr. & Ph. 138 . 
 
 V. Marshall, W. N. 1870, 227 
 
 V. Small, 1 Vem. 217 
 
 Jenkins v. Hiles, 6 Ves. 654 n. . 
 
 V. Milford, 1 J. & W. 629 
 
 Jenner v. Morris, 1 Ch. 603 ; 14 W. E. 1003 
 
 Jenney v. BeU, 2 Ch. D. 547; 45 L. J. Ch. 369 ; 34 L. T, 
 
 485 ; 24 "W. E. 550 
 
 Jerdein v. Bright, 2 J. & H. 325 
 
 Jermyn v. Fellows, Forrester, 93 157, 162 
 
 Jerrard v. Saunders, 2 Ves. Jun. 187 ; 4 B. C. C. 322 . 293, 295 
 
 Jervis o. WoKerstan, 18 Eci. 18; 43 L. J. Ch. 809; 30 L. T. N. 
 
 S. 452 231 
 
 JeiToise v. Northumberland, 1 J. & W. 559 . . . . 44, 47 
 
 V. Silk, G. Coop. 52 174 
 
 Jesse u Bennett, 6 D. M. & G. 609 ; 26 L. J. Ch. 63 ; 28 L. T. N. 
 
 S. 134; 2 Jur. N. S. 1125 . . 332 
 
 Jesson V. Jesson, 2 Vem. 255 169 
 
 Jessop V. Blake, 3 Giflf. 639 ; 10 W. E. 643 ; 8 Jur. N. S. 537 ; 6 
 
 L. T. N. S. 554 235 
 
 Jeyes v. Savage, 10 Ch. 563; 44 L. J. Ch. 706; 33 L. T. N. S. 139; 
 
 23 W. E. 764 161 
 
 Jobi;. Job, 6Ch. D. 564; 26 W. E. 206 98 
 
 Jodi-eU V. Jodi-ell, 14 Bea. 397 177 
 
 Joel V. MiUs, 7 Jur. N. S. 389; 9 W. E. 298 ; 30 L. J. Ch.354 ; 3 
 
 L. T. N. S. 8JJ2 
 
 Johns V. James, 8 Ch. D. 744 
 
 Johnson v. Ball, 5 De G. & Sm. 85 34 
 
 V. Fesemeyer, 3 D. & J. 13; 190 
 
 . r. GaUagher, 3 D. F. & J. 513 ; 30 L. J. Ch. 298 ; 7 Jur. 
 
 N. S. 273 251, 257, 260 
 
 V. Johnson, 2 Coll. 441 93 
 
 39 
 
 41 
 
 V. Johnson, 1 Keen. 648 
 
 V. Kennett, 3 M. & K. 624 
 
 V. Kershaw, 1 De G. & Sm. 260 
 
 V. Lumb, 15 Sim. 308 
 
 V. Legard, T. & E. 294 
 
 V. Lloyd, 7 Ir. Eq. E. 252 
 
 V. Newton, 11 Ha. 160 
 
 V. Prendergast, 28 Bea. 480 
 
 . . 251 
 
 126, 127 
 
 . . 37 
 
 . 251 
 
 . . 36 
 
 . 143 
 
 . 98,100 
 
 283, 284 
 
TABLE OF CASES. 
 
 lix 
 
 514 
 
 PAGE 
 
 Johnson, Ee, 8 Eq. 348 106 
 
 V. Routh, 27 L. J. Oil, 304; 6W. R. 6; 3 Jiir. N. S. 1048; 
 
 30 L. T. Ill 95, 115 
 
 Johnston v. Rowlands, 2 D. G. & Sm. 356 54 
 
 V. Moore, 27 L. J. Ch. 453 94 
 
 Jones V. Badley, 3 Ch. 362 ; 16 W. R. 713 82 
 
 V. Chennell, 8 Ch. D. 507 ; 47 L. J. Ch. 80 ; 38 L. T. N. S. 
 
 494 143 
 
 V. Croncher, 1 S. & S. 315 36 
 
 V. Cuthbertson, L. R. 7 Q. B. 218 ; L. R. 8 Q. B. 504 . 264 
 
 V. Foxall, 15 Bea. 388 283, 285, 287 
 
 r. Higgins, 2 Eq. 538 ; 35 L. J. Ch. 403 ; 14 L. T. N. S. 126 ; 
 
 14 W. R. 448 87 
 
 II. Jones, 5 Ha. 440 150, 151, 164 
 
 V. Jones, 8 Sim. 633 291 
 
 i'. Kearney, 1 Dr. & War. 134; 1 C. & L. 34 . . . . 77 
 
 ■ ■ V. Langhton, 1 Eq. Ca. Ab. 392 . 
 
 r. Lewis, 2 Ves. Sen. 240 ; 1 Cox. 199 
 
 V. Lewis, 3 De G. & Sm. 471 
 
 V. Lock, 1 Ch. 25; 35 L. J. Ch. 117; 13 L. T. N. S, 
 
 Jnr. N. S. 913 ; 14 W. R. 149 . 
 
 u Maggs, 9 Ha. 605 . 
 
 ■ V. Nabbs, 1 Eq. Ca. Abr. 405 . 
 
 V. Phipps, L. R. 3 Q. B. 567 . 
 
 ■ ■ V. Powell, 4 Bea. 96 . . . 
 
 ■ V. Powles, 3 M. & K. 581 
 
 Re, W. N. 1866, 65 ... 
 
 . Re, 3 Drew. 679 . 
 
 V. Thomas, 2Y. & C. Ex. 498 . 
 
 Josselyn v. Josselyn, 9 Sim. 63 84 
 
 Joy V. Campbell, 1 Sch. & L. 328 18, 218 
 
 Joyces. Cottrell, 12 Eq. 569; 40 L. J. Ch. 70; 19 W. R. 1076 174, 176 
 
 !). De Moleyns, 2 J. & L. 374 295 
 
 Jubber v. Jubber, 9 Sim. 503 57 
 
 Juler V. Juler, 29 Bea. 34; 30 L. J. Ch. 142; 6 Jur. N. S. 1320; 3 
 
 L. T. N. S. 395 ; 9 W. R. 61 243 
 
 Justice V. "Wynne, 12 Ir. Ch. R. 299 28 
 
 Kay v. Johnston, 21 Bea. 536 70 
 
 Kaye v. Powel, 1 Ves. Jun. 408 222 
 
 Kearsley v. Woodcock, 3 Ha. 185 178 
 
 Keating v. Keating, LI. & G. t. Sug. 133 124 
 
 Keays v. Lane, Ir. R. 3 Eq. 1 138, 259 
 
 Kebble, Ex parte, 11 Ves. 606 17^ 
 
 . 45 
 98, 223 
 
 . 142 
 11 
 
 . 29 
 
 . 155 
 
 . 80 
 
 . 221 
 
 . 103 
 
 . 297 
 
 . 234 
 
 . 235 
 
 . 190 
 
Ix 
 
 TABLE OF CASES. 
 
 44 
 
 Keble v. Thompson, 3 B. C. C. 112 
 Ki-ecli V. Sandford, 1 W. & T. L. C. 
 Keer v. Brown, Johns. 138 ; 7 W. R. 372 ; 28 L. J. Ch. 4' 
 
 Jur. N. S. 457 ; 33 L. T. 179 
 Kekewich v. Manning, 1 D. M. G. 176 . 
 
 ■ r. Marker, 3 Macn. & G. 311 . 
 
 Kellaway v. Johnson, 5 Bea. 319 
 Kelly r. Bellew, 4 B. P. C. 495 
 
 V. Kelly, I. E. 8 Eq. 403 .. . 
 
 Kempson v. Ashhee, 10 Ch. 15 . 
 Kendall v. Granger, 5 Bea. 300 
 Kennedy v. Daly, 1 Sch. & L. 379 . 
 Kenney v. Brown, 3 Eidg. 518 
 Kensington v. Dolland, 2 M. & K. 184 
 Kenrick v. Beauclerck, 3 B. & P. 178 
 Kerrison, Ee, 12 Eq. 422 ; 40 L. J. Ch. 637 ; 
 
 19 ^Y. E. 967 
 
 Kershaw, Ee, 6 Eq. 322 ; 37 L. J. Ch. 751 ; 18 L 
 
 25 L, 
 
 PAGE 
 
 . 220 
 73, 78 
 
 . 258 
 28, 33 
 118 
 334 
 164 
 74 
 194 
 59 
 29G 
 192 
 257 
 2 
 
 T. N. s. 57 
 
 174 
 
 N. S. 899 
 109, 138, 179 
 Kevan v. Crawford, 6 Ch. Br 2d ; 45 L. J. Ch. 658 ; 37 L. T. N. S. 
 
 322 ; 26 W. E. 49 
 
 Kiddin V. Eamell, 3 Sm. & G. 428 
 
 Kilbee v. Sneyd, 2 Moll. 199 
 
 Kildare v. Enstace, 1 Vern. 418 .... 
 
 65 . 
 375; 
 
 262 
 34 
 19 
 
 244 
 254 
 185 
 65 
 181 
 187 
 
 . . 328 
 58, 59 
 
 219, 336 
 . 234 
 
 Killick, Ex parte, 3 M. D. & D. 480 
 
 V. Flexney, 4 B. C. C. 161 .... 
 
 Kilpin V. Kilpin, 1 M. & K. 542 
 
 Kilvington v. Gray, 10 Sim. 293 
 
 Kimher v. Barber, 8 Ch. 56 ; 27 L. T. N. S. 526 ; 21 ^Y. E. 
 King V. Corke, 1 Ch. D. 57 ; 45 L. J. Ch. 190 ; 33 L. T. K. S. 
 24 W. E. 23 
 
 V. Denison, 1 V. & B. 273 . 
 
 ■ Ex parte, 2 M. & A. 410 
 
 V. Isaacson, 9 W. E. 369 
 
 V. King, 1 D. & J. 663 ; 27 L. J. Ch. 29 ; 6 W. E. 85 ; 30 
 
 L. T. 177 101, 102, 224 
 
 V. Mullins, 1 Drew. 308 236 
 
 Ee, 5 D. G. & Sm. 647 ; 16 Jur. 1153 22 
 
 1). Withers, Forrester, 117 ; Pr. Ch. 348 . . . 160,162 
 
 Kingdon v. Bridges, 2 Vern. 67 62 
 
 V. Castleman,W. N. 1877, 15 89 
 
 Kingham v. Lee, 15 Sim. 400 20 
 
 Kingsley, Ee, 26 Bea. 84 268 
 
 Kingsman v. Kingsman, 1 Eq, Ca. Abr. 405 80 
 
TABLE OP CASES. 
 
 ]xi 
 
 Kingston, Ex parte, 6 Ch. 632 
 
 V. Pierepont, 1 Vern. 5 
 
 Kirby v. Masli, 3 Y. & C. 295 
 Kirk u Panlin, 7 Vin. Abr. 95, PL 43 
 Kirkman v. Booth, 11 Bea. 273 
 Kirkpatrick, Re, 15 Jur. 941 
 Kirkwood v. Thompson, 2 D. J. & Sni. 612 
 Knapp V. Knapp, 12 Eq. 238 ; 24 L. T. N. 
 Knight V. Bowyer, 2 D. & J. 421 ; 6 W. E. 
 4 Jur. N. S. 569 ; 31 L. T. 287 
 
 II. Boughton, 11 CI. & F. 513 . 
 
 V. Cameron, 14 Ves. 389 
 
 V. Knight, 6 Sim. 121 . 
 
 V. Marjoribanks, 2 Macn. & G. 10 . 
 
 V. Maitin, 1 R. & My. 70 . 
 
 -i: Plymouth, 1 Dick. 120 
 
 Re, 27 Bea. 45 ; 5 Jur. N. S. 326 ; 
 
 V. Robin.9on, 2 K. & J. 503 . 
 
 Knott V. Cottee, 16 Bea. 77 . 
 Knowles, Re, 18 L. T. N. S. 809 
 
 Knox V. Gye, L. R. 5 H. L. 674 ; 42 L. J. 
 Kronheim v. Johnson, 7 Cli. D. 60 ; 47 L. 
 N. S. 751 ; 26 W. R. 142 
 
 PAGE 
 
 40 L. J. Bk. 91 ; 19 W. E. 910 99, 302 
 
 . 279 
 . 256 
 90, 197 
 
 135 
 
 ; 34 L. J. Cli. 305, 501 186 
 S. 540 . . 165, 167 
 565 ; 27 L. J. Ch. 520 ; 
 
 309, 319 
 . 54 
 . 104 
 . 250 
 184, 186 
 . 230 
 . 99 
 . 232 
 
 22 
 
 132, 283, 285, 287 
 
 109 
 
 Ch. 284 .. . 313 
 J. Ch. 132 ; 38 L. T. 
 
 . 25, 26, 28 
 
 33 L. T. 54 
 
 Lacey, Ex parte, 6 Ves. 625 182, 188, 191, 192 
 
 V. Hill, 19 Eq. 346 ; 42 L. J. Cli. 86 ; 27 L. T. N. S. 504 ; 
 
 21 W. R. 153 270 
 
 . V. Hill, 4 Ch. D. 554 ; 35 L. T. N. S. 148 . . . . 303 
 
 Lake v. Craddock, 9 Ves. 597 70 
 
 . • V. Gibson, 1 Eq. Ca. Ab. 290 ; 1 W. & T. L. C. 198 . 69, 70, 71 
 
 Lambe v. Eames, 6 Ch. 597 ; 40 L. J. Ch. 447 ; 23 L. T. N. S. 175 ; 
 
 19 AV. R. 659 54, 56, 57 
 
 V. Orton, 1 Dr. & Sm. 125 ; 8 W. R. 202 ; 29 L. J. Ch. 319 ; 
 
 1 L. T. N. S. 394 ; 6 Jur. N. S. 290 28 
 
 Lambert v. Lambert, 16 Eq. 320; 43 L. J. Ch. 106 ; 29 L. T. N. S. 
 
 878; 21 W. R. 748 96, 115 
 
 V. Oyerton, 13 W. R. 227 34 
 
 . • V. Parker, G. Coop. 143 173 
 
 Lamplugh v. Lamplugh, 1 P. W. Ill 61, 62 
 
 Lancashire v. Lancashire, 2 Ph. 657 214 
 
 . ■ and Yorshire Bank v. Tee, W. N. 1875, 213 . 262, 264 
 
 Lancaster v. Elce, 31 Bea. 325 ; 10 W. R. 824 . . . . ' 40 
 Lander v. Weston, 3 Dr. 389 ; 4 W. R. 158 ; 25 L. J. Ch. 235 ; 26 
 
 L. T. N. S. 254 ; 20 Jur. N. S. 58 . . . 138, 142, 143 
 
Ixii 
 
 TABLE OF CASKS. 
 
 PAGE 
 
 Lane v. Debeiiliam, 11 Ha. 192 ; 1 W. R. 465 122 
 
 V. Digliton, Amb. 409 304 
 
 ■ V. Husband, 14 Sim. 656 '^^ 
 
 LangJale v. Briggs, 8 D. M. & G. 391 ; 4 W. P>.. 703 . . 226, 234 
 
 ^ Ee, 10 Eq. 39 109, 139 
 
 Langford v. Gascoyne, 11 Ves. 333 19 
 
 Re, 2 J. & H. 458 ; 31 L. J. Ch. 334 ; 5 L. T. N. S. 579 ; 
 
 8 Jur. N. S. 114 ; 10 W. R. 121 136 
 
 Langbam v. Sandford, 19 Ves. 643 61 
 
 Langley v. Hawk, 5 Mad. 46 . . . . . ■ .272 
 
 LangstafFe v. Fenwick, 10 Ves. 404 197 
 
 Langston •». OUivant, G. Coop. 33 . 137 
 
 Lanoy v. Atbol, 2 Atk. 444 166 
 
 Lantsbery D. CoUier, 2 K. & J. 709 116,117 
 
 Larken, Re, W. N. 1872, 85 . . . .... 109 
 
 La Terriere v. Bulmer, 2 Sim. 18 . . . . . . .95 
 
 Lavender v. Stanton, 6 Mad. 46 125 
 
 Law V. Bagwell, 4 Dr. & W. 398 41 
 
 Lawrence v. Bowles, 2 Pb. 140 337 
 
 V. Campbell, 7 W, R. 170 38 
 
 V. Maggs, 1 Eden, 455 n. . .... 78, 148 
 
 Lawton v. Ford, 2 Eq. 97 . . . . ... 307 
 
 V. Swetenham, 18 Bea. 98 162 
 
 Layton, Re, W. N. 1873, 49 327 
 
 Leake v. Leake, IJ. & W. 605 280 
 
 Leatbes r. Leathes, 5 Ch. D. 221; 46 L. .J. Ch. 562 ; 36 L. T. N. S. 
 
 646 ; 25 W. R. 492 226 
 
 Lecbe v. Kilmorey, T. & R. 207 180 
 
 Lecbmere v. Carlisle, 3 P. W. 215 278 
 
 u. Charlton, 15 Ves. 193 . .... 165 
 
 V. Lavie, 2 M. & K. 201 55 
 
 V. Lecbmere, 3 P. W. 211; Sugd. V. & P. App. 1117 
 
 145, 305 
 
 Ledwicb v. Ledwicb, 6 Ir. Eq. R. 561 210 
 
 Lee V. Brown, 4 Ves. 362 178 
 
 V. Henley, 1 Vern. 37 31 
 
 V. Hewlett, 2 K. & J. 531 291 
 
 V. Lee, 4 Ch. D. 175; 46 L. J. Ch. 81; 36 L. T. N. S. 138 
 
 V. Prieanx, 3 B. C. C. 381 
 
 Re, 32 L. T. N. S. 298 
 
 V. Sankey, 15 Eq. 204 ; -21 "W. R. 286 ; 27 L. T. N. S. 809 . 
 
 ■ V. Vernon, 5 B. P. C. 10 . 
 • v. Young, 2 Y. c& C. C. C. 532 
 
 19, 
 
 146, 
 
 46 
 256 
 107 
 
 15, 
 241 
 
 77 
 216 
 
TABLE OP CASES. Ixiii 
 
 PAGE 
 
 Leeds tv Amherst, 20 Bea. 23'D 99 
 
 V. Amherst, 2 Ph. 117 31.3 
 
 Lees r. Nuttall, 1 R. & M. 53 187 
 
 Lefroy v. Flood, 4 I. Ch. R 1 54 
 
 Legg V. Goldwire, Talb. 20 45 
 
 V. Mackrell, 2 D. F. & J. 551 ; 4 L. T. N. S. 568 ; 5 Jur. N. S. 
 
 1154 11, 206 
 
 Le Hunt v. Webster, 9 W. R. 918 207 
 
 Leigh V. Barrj^, 3 Atk. 583 238, 239 
 
 v. Lloyd, 2 D. J. & Sm. 330 ; 34 L. J. Ch. 646 . . . 123 
 
 Re, 6 Ch. 887; 40 L. J. Ch. 442; 25 L. T. N. S. 644; 19 
 
 W. R. 1105 105 
 
 Leith v. Irvine, 1 M. & K. 277 . .'"■'■■■ 197 
 
 Le Jeune v. Budd, 6 Sim. 441 104 
 
 Le Marchant v. Le Marchant, 18 Eq. 414 53, 57 
 
 Lempsterr. Pomfret, Amb. 154; 1 Dick. 238 . . . .227 
 
 Lench v. Lench, 10 Ves. 511 68, 304, 305 
 
 Le Neve v. Le Neve, Amb. 436 ; 2 W. & T. L. C. 49 ; 1 Ves. 64 ; 
 
 3 Atk. 646 294, 297, 299 
 
 Leonard v. Sussex, 2 Vern. 526 48, 49 
 
 Leslie v. Baillie, 2 Y. & 0. C. C. 91 231 
 
 V. Leslie, LI. & G. (Sugd.) 1 173 
 
 • Re, 2 Ch. D. 185 ; 45 L. J. Ch. 668 ; 34 L. T. N. S. 239 ; 24 
 
 W. R. 546 105, 106 
 
 Lester v. Lester, 6 Ir. Ch. R. 513 89 
 
 Levey ■!). Pendergrass, 2 Bea. 415 112 
 
 Lewellin •!). Maokworth, 2 Eq. Ca. Ab. 579 315 
 
 Lewes u Barnett, 6 Ch. D. 252 278 
 
 Re, 6 Ch. 356 ; 40 L. J. Ch. 602 ; 24 L. T. N. S. 533 ; 19 
 
 W. R. 617 235 
 
 Lewis Bowles' case, Tudor, L. C. R. P. 27 107 
 
 Ex parte, 3 M. D. D. 173 120 
 
 V. Freke, 2 Ves. Jun. 507 166 
 
 V. Hillman, 3 H. L. C. 607 186, 187 
 
 ■ V. King, 2 B. C. C. 600 57 
 
 V. Lewis, 1 Cox, 162 167, 181 
 
 u Madocks, 8 Ves. 150 305 
 
 V. Mathews, 2 Eq. 177; 12 Jur. N. S. 542; 14 W. R. 682; 
 
 35 L. J. Ch. 638 254, 255 
 
 V. Nobbs, 8 Ch. D. 591; 47 L. J. Ch. 662; 26 W. R. 631 
 
 100, 240 
 
 V. Rees, 3 K. & J. 132; 2 L. J. Ch. 101; 5 W. R. 96 
 
 9, 36, 320 
 V. Thomas, 3 Ha. 26 . . . . . . . . 322 
 
Ixiv 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Lichfield v. Baker, 13 Bea. 447 92 
 
 Liddard v. Liddard, 28 Bea. 266; 6 Jur. N. S. 4:39; 2 L. T. X. S. 
 
 200 52 
 
 Liebman v. Harcourt, 2 Mer. 513 301 
 
 Life Association of Scotland v. Siddal, 3 D. F. & J. 58; 9 W. R. 
 
 541 ; 4 L. T. N. S. 311 ; 7 Jur. N. S. 785 
 
 14, 102, 194, 241, 310, 317, 318, 320, 336 
 
 Lillia V. Airey, 1 Ves. Jun. 277 261 
 
 Limbrey v. Gurr, 6 ilad. 151 82 
 
 Lincoln v. Newcastle, 12 Ves. 227 44 
 
 r, Pelliara, 10 Yes. 173 159 
 
 V. Wright, 4 Bea. 427; 4 D. & J. 16 ; 7 W. R 124, 350 ; 32 
 
 L. T. 290 ; 33 L. T. 35 26, 240, 335 
 
 Lindo V. Lindo, 1 Bea. 496 237 
 
 Lindow v. Fleetwood, 6 Sim. 152 ... ... 50 
 
 Lindsell v. Thaoker, 12 Sim. 178 22, 254 
 
 Lister v. Hodgson, 4 Eq. 36 ; 15 W. R. 547 31 
 
 V. Lister, 6 Ves. 633 192 
 
 u Pickford, 34 Bea. 576 ; 34 L. J. Ch. 582 . . . . 315 
 
 Littlehales v. Gascoyne, 3 B. C. C. 73 . . . . 337 
 Livesey v. Harding, Tanil. 463 181 
 
 V. Livesey, 3 Russ. 287 231 
 
 Llewellyn, Re, 29 Bea. 171 93, 94, 97 
 
 Lloyd V. Baldwin, 1 Ves. Sen. 173 127, 129 
 
 V. Banks, 3 Ch. 488 ; 36 L. J. Ch. 751 ; 16 W. R. 988 289, 290 
 
 V. Cocker, 27 Bea. 645 ; 29 L. J. Ch. 513 ; 8 W. R. 252 ; 6 
 
 Jur. N. S. 336 ; 2 L. T. N. S. 9 179 
 
 V. Lloyd, 7 Eq. 458 ; 38 L. J. Ch. 458 ; 20 L. T. N. S. 898 ; 
 
 17 W. R. 702 .60 
 
 V. Pughe, 8 Ch. D. 88 ; 42 L. J. Ch. 282 ; 28 L. T. N. S. 
 
 250 64 
 
 V. Read, 1 P. W. 606 62 
 
 V. Spillet, 2 Atk. 150 n 67, 68 
 
 Loch V. Bagley, 4 Eq. 122 ; 15 W. R. 1103 50 
 
 Lock V. Lock, 2 Vem. 666 148 
 
 Locke V. Lomas, 5 D. G. & Sra. 329 125 
 
 Lockey v. Lockey, Pr. Ch. 518 311 
 
 Lockhart v. Reilly, 1 D. & J. 464 ; 27 L. J. Ch. 54 . 142, 220, 333 
 Locking v. Parker, 8 Ch. 35 ; 42 L. J. Ch. 257 ; 27 L. T. N. S. 
 
 635 ; 21 W. R. 113 187, 310 
 
 Lomax v. Lomax, 11 Ves. 48 172 
 
 V. Ripley, 3 Sm. & G. 48 ; 3 W. R. 269 ; 24 L. J. Ch. 254 ; 
 
 24 L. T. N. S. 323 80, 82 
 
 Lombard v. Hickson, 13 Jr. Ch. R. 98 77 
 
 Londesborough u Somerville, 23 L. J. Ch, 646 . . . 147 
 
TABLE OF CASES. Ixv 
 
 PAGE 
 
 London Bridge Acts, Re, 13 Sim. 176 121 
 
 Cliartered Bank of Australia v. Lempriere, L. R. 4 P. C. 
 
 572 ; 42 L. J. P. C. 49 ; 29 L. T. N. S. 186 ; 21 W. R. 513 
 
 257, 260, 261, 262 
 
 and Provincial Bank v. Bogle, 7 Ch. D. 773 . . . 250 
 
 Lonergan v. Stourton, 11 W. R. 984 233 
 
 Long V. Hay, W. N. 1871, 134 325 
 
 V. Rankin, Sugd. Pow. 895 119 
 
 Re, 17 W. R. 218 ; 38 L. J. Ch. 125 ; 19 L. T. N. S. 672 109, 212 
 
 V. Ricketts, 2 S. & S. 179 105 
 
 Longdon v. Simson, 12 Ves. 295 154 
 
 Longley v. Longley, 13 Eq. 133 ; 41 L. J. Ch. 168 ; 25 L. T. N. S. 
 
 736 ; 20 W. R. 227 60 
 
 Lonsdale v. Beckett, 4 D. G. & Sm. 73 212 
 
 V. Churcli, Rolls 17 Dec, 1789 286 
 
 Lord V. Bunn, 2 Y. & C. C. C. 98 178 
 
 V. Godfrey, 4 Madd. 455 . 92 
 
 V. "Wightwiok, 4 D. M. & G. 803 ; 23 L. J. Ch. 235 ; 18 Jur. 
 
 253 ; 23 L. T. 249; 2 Eq. Rep. 349 .. . 95, 111, 113 
 Lorenz, Re, 1 Dr. & Sm. 401 ; 9 W. R. 567 ; 7 Jur. N. S. 402 ; 4 
 
 L. T. N. S. 501 108 
 
 Lovatt V. Knipe, 12 Ir. Eq. R. 124 74 
 
 Love V. Gaze, 8 Bea. 472 243 
 
 Lovell V. Knigkt, 3 Sim. 275 259 
 
 Loveridge v. Cooper, 3 Russ. 30 . 289 
 
 Lowe, Re, 30 Bea. 95 288 
 
 Lowryc. Fulton, 9 Sim. 115; 8 L. J. Ch. 314 14 
 
 Lowson V. Copeland, 2 B. C. C. 156 87, 114 
 
 Lowther v. Bentinck, 19 Eq. 166 ; 44 L. J. Ch. 197 ; 31 L. T. N. 
 
 S. 719 178 
 
 V. Condon, 2 Atk. 127 160 
 
 V. Lowther, 13 Ves. 103 187 
 
 Loxley v. Heath, 1 D. F. & J. 489 ; 29 L. J. Ch. 313; 1 L. T. N. 
 
 S. 471 ; 6 Jur. N. S. 262; 8 W. R. 314 . . . . 46 
 
 Loyd V. SpiUet, 2 Atk. 148 ; 3 P. W. 344 26, 59 
 
 Lucas u King, 11 W. R. 818 ; 8 L. T. N. S. 623 . . . . 177 
 
 V. Lucas, 1 Atk. 271 32 
 
 V. WiUiams, 4 D. F. & J. 436 90 
 
 Luckin v. Rushworth, 2 Ch. Rep. 59 75 
 
 Luders v. Anstey, 4 Ves. 501 ; Amb. 315 45 
 
 Luff V. Lord, 34 Bea. 220 184, 185 
 
 Lumb V. Milnes, 5 Ves. 520 263 
 
 Lunham v. Blundell, 27 L. J. Ch. 179; 6 W. R. 49; 4 Jur. 
 
 N. S. 3 98 
 
 e 
 
Ixvi TABLE OF CASES. 
 
 PAGE 
 
 Lupton V. WMte, 15 Ves. 432 99; 301 
 
 Lush, Re, 4 Ch. 591 ; 38 L. J. Ch. 650 ; 21 L. T. N. S. 376 . . 266 
 
 Lushington v. Sewell, 1 Sim. 435 271 
 
 Luther V. Bianooni, 10 Ir. Ch. R. 194 . . . . 87, 88, 259 
 Lyddon v. EUison, 19 Bea. 565; 2 W. R. 690 . . . 49, 159 
 
 V. Lyddon, 14 Ves. 558 167 
 
 V. Moss, 4 D. & J. 104; 7 W. R. 433; 5 Jur. N. S. 637; 
 
 33 L. T. 170 313 
 
 Lynn v. Ashton, 1 R. & My. 190 248 
 
 Lysaght d. Edwards, 2 Ch. D. 499; 45 L. J. Ch. 554; 34 L. T. N. 
 
 S. 787 ; 24 W. R. 778 . . . . 21, 23, 72, 73, 224 
 Lyster v. Dolland, 1 Ves. Jun. 431 70 
 
 M. .;. C L. R. 2 P. & D. 414 262 
 
 Maberly v. Turton, 14 Ves. 499 .. . . . 173, 174 
 
 McCarogher v. Whieldon, 3 Eq. 236 ; 36 L. J. Ch. 196 ■ . . 169 
 
 V. 34 Bea. 107 117 
 
 Macartney v. Blackwood, Ridg. L. & S. 602 191 
 
 McCormick v. Grogan, L. R. 4 H. L. 82 . . . . 55, 79, 80 
 
 McCreight v. Foster, 5 Ch. 604 72 
 
 McDermott v. Kealy, 3 Russ. 264 n 173 
 
 McDonald v. Hanson, 12 Ves. 277 120 
 
 Macdonald v. Irvine, 8 Ch. D. 101 ; 47 L. J. Ch. 494 ; 26 W. R. 
 
 381 91,93 
 
 V. Walker, 14 Bea. 556 24 
 
 Macdonnell v. Harding, 7 Sim. 178 18 
 
 McDonnell v. Hesilrige, 16 Bea. 346; 1 W. R. 71; 22 L. J. Ch. 
 
 342; 16 Jur. 1118 • . 32,36 
 
 McFadden v. Jeukyns, 1 Ha. 461 ; 1 Ph. 153 . . . 25, 29, 33 
 
 McGachen v. Dew, 15 Bea. 84 87, 331, 335 
 
 McHardy v. Hitchcock, 11 Bea. 75 276 
 
 MoHenry v. Davies, 6 Eq. 90, 462 ; 10 Eq. 88 ; 39 L. J. Ch. 866 ; 
 
 22 L. T. N. S. 643 ; 18 W. R. 855 . . . . 260, 261, 264 
 
 Macintosh, Re, 42 L. J. Ch. 208 110 
 
 McKay's case, 2 Ch. D. 1 ; 45 L. J. Ch. 148; 33 L. T. N. S. 517 . 187 
 McKewan v. Sanderson, 15 Eq. 229; 20 Eq. 65; 42 L. J. Ch. 296; 
 
 28 L. T. N. S. 159 .' 40 
 
 McKey, Ex parte, 1 B. & B. 405 179 
 
 Mackinnon v. Stewart, 1 Sim. N. S. 76 40 
 
 Mackreth v. Symmons, 15 Ves. 329 296 
 
 McLean v. Longlands, 5 Ves. 78 32 
 
 Macleod v. Annesley, 16 Bea. 600 ; 1 W. R. 250 ; 17 Jur. 603 . 140, 
 
 141, 142 
 
TABLB OF CASES. Ixvii 
 
 PAGE 
 
 Macnab v. Whitbread, 17 Bea. 299 ; 1 W. R. 473 . . . 53 
 
 Macnamara v. Carey, Ir. R. 1 Eq^. 9 . . . . . . 89 
 
 Macniohol, Re, 19 Et^. 81 ; 31 L. T. N. S. 566 ; 23 W. R. 67 . 245 
 
 Maooulirey v. Jones, 2 K. & J. 684 158 
 
 Maopherson v. Macpherson, 1 McQ. 243 ; 16 Jur. 847 ... 97 
 
 McPherson v. Watt, 3 App. Ca. 254 182, 189 
 
 McVeagh, Re, V. C. W., 25 May, 1861 109 
 
 Maddison v. Andrew, 1 Ves. Sen. 57 103 
 
 Magdalen College v. Attorney-General, 6 H. L. C. 189 . . .311 
 Magrath v. Morehead, 12 Eq. 491 ; 41 L. J. Ch. 120 ; 24 L. T. N. 
 
 S. 868 51, 85 
 
 Mahonu Savage, 1 Sch. & L. Ill .103 
 
 Maitland v. Bateman, 10 Bea. 415 325 
 
 Major V. Lansley, 2 R. & M. 355 258 
 
 Malcolm v. Charlesworth, 1 Keen. 63 291 
 
 Maiden v. Menill, 2 Atk. 8 . . . . ... 161 
 
 Malim v. Keighley, 2 Ves. Jun. 333 S3, 57 
 
 Manby v. Bewicke, 3 K. & J. 369 322 
 
 Manners ii. Furze, 11 Bea. 30 274 
 
 Manning v. Gill, 13 Eq. 485 ; 26 L. T. N. S. 14 ; 20 W. R. 357 
 
 31, 85 
 
 Mansell v. Mansell, 2 P. W. 681 295 
 
 Manser v. Dix, D. M. & G. 703 124 
 
 Mansfield u Childerhouse, 4 Ch. D. 82 ; 46 L. J. Ch. 30 ; 35 L. 
 
 T. N. S. 590 ; 25 W. R. 68 193 
 
 V. Ogle, 4 D. & J. 41 ; 7 W. R. 423 ; 33 L. T. 84 ; 28 
 
 L. J. Ch. 422 ; 5 Jur. N. S. 419 . . . . 284 
 
 u Shaw, 3 Mad. 100 279 
 
 Manson v. Baillie, 2 Macq. 80 197 
 
 Mant V. Leith, 15 Bea. 524 143 
 
 Mara v. Manning, 2 J. & L. 311 259 
 
 March v. Russell, 3 M. & Cr. 31 320, 329 
 
 Marcon, Re, W. N. 1871, 148 99 
 
 Mare v. Sandford, 1 Giff. 288 . . 40 
 
 Margetts v. Barringer, 7 Sm. 482 255 
 
 Marker v. Marker, 9 Ha. 16 318 
 
 Marler v. Tommas, 17 Eq. 8 ; 43 L. J. Ch. 73 ; 22 W. R. 25 30, 31 
 
 Marriott, v. Kinnersley, Taml. 470 326 
 
 Be, W. N. 1868, 215 213 
 
 Marryat v. Marryat, 23 L. J. Ch. 876 . .... 275 
 
 V. Marryat, 28 Bea. 224 333 
 
 V. Townly, 1 Ves. Sen. 101 48, 50 
 
 Marsden v. Kent, 5 Ch. D. 598 ; 46 L. J. Ch. 497 ; 37 L. T. N. 
 
 S. 48 ; 25 W. R. 522 89, 114 
 
 e 2 
 
Ixviii 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Marsh, Ex parte, 1 Mad. 148 .186 
 
 Marshall). Crutwell, 20 Eq.. 328 ; 44 L. J. Ch. 504 ... 64 
 Marshall v. BousfieM, 2 Mad. 166 ... . . . 4 
 
 V. Bremner, 2 Sm. & G. 237 ; 2 W. B. 320 . . . 93 
 
 V. Crowther, 2 Ch. D. 199 96, 115 
 
 V. HoUoway, 2 Swans. 432 . 152, 154, 172, 198, 200, 202 
 
 V. Sladden, 4 D. G. & Sm Ill 
 
 V. 7 Ha. 428 303 
 
 Martin, Ex parte, 19 Ves. 491 218 
 
 V. Laverton, 9 L. R Eq. 563 ; 39 Ti. J. Ch. 216 ; 22 L. T. 
 
 N. S. 700 ; 18 W. E. 561 22 
 
 V. Martin, 1 Eq. 369 
 
 V. 2 E. & My. 524 . 
 
 13. Mitchell, 2 J. & W. 425 . 
 
 V. Persse, 1 Moll. 146 
 
 V. Powning, 4 Ch. 356 ; 38 L. J. 
 
 133 ; 17 W. E. 386 . 
 
 Ee, M. E. 28 Dec. 1859 
 
 V. Sedgwick, 9 Bea. 333 . 
 
 Martyn v. Blake, 3 D. & W. 125 
 Maskelyne v. Eussell, W. N. 1869, 184 . 
 Mason v. Mason, I. E. 5 Eq. 288 
 
 V. Morley, 34 Bea. 475 
 
 V. Banner, IJ. & W. 241 
 
 Ch. 
 
 218 ; 20 L. T. 
 
 N. S. 
 
 173, 177 
 
 . 245 
 
 . . 118 
 
 11 
 
 . 188 
 . 110 
 . 289 
 . 284 
 • 89 
 49, 50 
 . 99 
 99, 302 
 
 V. Massey, 2 J. & H. 728; 11 W. E. 19 ; 32 L. J. Ch. 13 ; 
 
 1 N. E. 15 ; 7 L. T. N. S. 311 328 
 
 V. Parker, 2 M. & K. 174 255 
 
 Massy v. Lloyd, 10 H. L. C. 248 162 
 
 V. Eowen, L. E. 4 H. L. 288 ; 23 L. T. N. S. 141 . 253, 254 
 
 Master v. De Croismar, 11 Bea. 184 146 
 
 Matheson, Ee, 1 D. M. & G. 448 139 
 
 Mathew i;. Brise, 14 Bea. 341 198,311 
 
 Mathews v. Eehle, 3 Ch. 696 ; 37 L. J. Ch. 657 ; 16 L. T. N. S. 
 
 832 ; 15 W. E. 1193 154, 155, 156 
 
 Mathias v. Mathias, 3 Sm. & G. 555 ; 32 L. T. N. S. 25 ; 4 Jur. 
 
 N. S. 780 145, 305 
 
 Mather V. Priestman, 9 Sim. 352 112 
 
 Matson v. Denis, 12 "W. E. 596 69, 70 
 
 Matthaei v. Galitzin, 18 Eq. 349 ; 43 L. J. Ch. 536 ; 30 L. T. N. S. 
 
 455 ; 22 W. E. 700 245, 246 
 
 Matthison v. Clarke, 3 Drew. 3 ; 3 W. E. 2 ; 24 L. J. Ch. 202 ; 24 
 
 L. T. 105 ; 3 Eq. Eep. 127 197 
 
 Matthewman, Ee, 3 Eq. 781 ; 36 L. J. Ch. 90 ; 15 L. T. N. S. 
 
 266 ; 15 W. E. 146 262 
 
TABLE OF CASES. Ixix 
 
 PAGE 
 
 Mattliews v. Bagshaw, 14 Bea. 126 n 199 
 
 • i>. Brise, 6 Bea. 239 99, 100, 132 
 
 V. Paulj 3 Swans. 328 159 
 
 Ee, 26 Bea. 463 ; 7 "W. R. 224 ; 28 L. J. Cli. 295 ; 5 
 
 Jur. N. S. 104 ; 32 L. T. 289 216 
 
 Maimdrell v. Maundrell, 10 Ves. 260 ... . 297, 299 
 
 Maw V. Pearson, 28 Bea. 196 303 
 
 Mawhood v. Milbanke, 15 Bea. 36 264 
 
 Maxfield v. Burton, 17 Eq. 15 ; 43 L. J. Ch. 46 ; 29 L. T. N. S. 
 
 571 ; 22 W. E. 148 298 
 
 Maxwell v. Ashe, 1 B. C. C. C. 444 n. . ... 77 
 
 May V. May, 33 Bea. 81 63, 67 
 
 Mayd .,. Field, 3 Ch. D. 587 ; 45 L. J. Ch. 699 ; 34 L. T. N. S. 
 
 614 ; 24 W. E. 660 169, 253, 261 
 
 Mayhew v. Middleditch, 1 B. C. C. 162 .... 163, 166 
 
 Mayn v. Mayn, 5 Eq. 150 46, 50 
 
 Meacher v. Young, 2 M. & K. 490 173 
 
 Mead v. Orrery, 3 Atk. 237 274, 294, 298 
 
 Medworth v. Pope, 27 Bea. 71 83 
 
 Meggison v. Moore, 2 Ves. Jun. 630 53, 54 
 
 Mehrtens v. Andrews, 3 Bea. 72 320 
 
 Meinertzhagen v. Davis, 1 Coll. 335 . 212 
 
 Melling v. Leak, 16 0. B. 652 315 
 
 Mellish D. Mellish, 1 S. & S. 145 311 
 
 Mendes v. Guedalla, 2 J. & H. 259 ; 31 L. J. Ch. 561; 10 W. R. 
 
 482 100, 240 
 
 Mennard v. Welford, 1 Sm. & G. 426 210 
 
 Mercer'!). Hall, 4 B.C. C. 326 104 
 
 Meredith v. Heneage, 1 Sim. 542 ; 10 Price, 230 . 52, 53, 55, 56 
 
 Merest v. Murray, 14 L. T. N. S. 321 . ... 280 
 
 Merry v. Eyves, 1 Ed. 1 . . . . . . . . 166 
 
 Merryweather v. Jones, 4 Giflf. 509 . . ... 84 
 
 Mertinsu Joliffe, Amb. 311 294,296 
 
 Mesgrett v. Mesgrett, 2 Vern. 580 104 
 
 Messeena v. Carr, 9 Eq. 260 ; 39 L. J. Ch. 216 ; 18 W. E. 415 ; 22 
 
 L. T. 3 15, 102 
 
 Methold V. Turner, 4 D. G. & Sm. 249 . . . . 177 
 
 Meure v. Meure, 2 Atk. 265 . . . . . 49 
 
 Meux V. Bell, 1 Ha. 73 ... . . . . 291 
 
 Mews V. Mews, 15 Bea. 533 ... . . . 32 
 
 Meyer v. Montriou, 4 Bea. 343 . . . . . 276 
 
 V. Simonsen, 5 D. G. & Sm. 723 ... . 93, 94, 97 
 
 Meyrick v. Laws, 34 Bea. 59 .144 
 
 Michael, Ee, W. N. 1877, 134 267 
 
Ixx TABLE OF CASES. 
 
 Michell V. Michell, 4 Bea. 549 165 
 
 Middleton v. Chichester, 6 Ch. 152 ; 40 L. J. Oh. 237 . 277, 278 
 
 V. Dodswell, 13 Ves. 269 . 272 
 
 - — - V. Losh, 1 Sm. & G. 61 155 
 
 ■ ■ V. Pollock, 4 Ch. D. 49 ; 46 L. J. Ch. 39 ; 35 L. T. N. 
 
 S. 608 ; 25 W. B. 94 303 
 
 V. Eeay, 7 Ha. 106 211 
 
 Mignan v. Parry, 31 Bea. 211 ; 10 W. R. 812; 8 Jur. N. S. 634 . 47 
 Miles, Re, 27 Bea. 579 ; 8 W. E. 54 ; 29 L. J. Ch. 47 ; 5 Jur. N. 
 
 S. 1236 ; 1 L. T. N. S. 420 132, 143 
 
 Mill V. Hill, 3 H. L. C. 828 75, 77, 78 
 
 Millard t). Eyre, 2 Ves. Jim. 94 216 
 
 Miller v. Harrison, I. R. 5 Eq. 324 33 
 
 V. Miller, 13 Eq. 263 ; 41 L. J. Ch. 291 ; 20 W. R. 234 
 
 93,94 
 
 V. Priddon, 1 D. M. & G. 335 214 
 
 Milligan v. Mitchell, 1 M. & K. 452 279 
 
 Mills V. Banks, 3 P. W. 1, 7 122, 164 
 
 V. Dugmore, 30 Bea. 104 116 
 
 V. Hanson, 8 Ves. 68 276 
 
 V. Mills, 7 Sim. 501 92 
 
 • V. Osborne, 7 Sim. 30 88, 89, 137 
 
 Re, 7 W. R. 372 32, 34 
 
 Milroy v. Lord, 4 D. F. & J. 274 ; 31 L. J. Ch. 798 ; 6 L. T. N. S. 
 
 875 ; 8 Jur. N. S. 808 27, 28, 29 
 
 Milsingtown v. Mulgrave, 3 Mad. 491 149 
 
 Milsinton v. Portmore, 5 Mad. 471 151 
 
 Minet v. Leman, 7 D. M. & G. 340 116, 146 
 
 Minors v. Battison, 1 App. Ca. 428 144 
 
 Minton v. Kirwood, 3 Ch. 619 ; 37 L. J. Ch. 606 ; 18 L. T. N. S. 
 
 781 ; 16 W. R. 991 122 
 
 Mockett, Re, Johns. 628 ; 8 W. E. 235 ; 29 L. J. Ch. 294 ; 6 Jur. 
 
 N. S. 142 ; 1 L. T. N. S. 142 108, 109 
 
 Moggeridge v. Grey, Nels. 42 204 
 
 Mole V. Mole, 1 Dick. 310 173 
 
 Molony v. Kennedy, 10 Sim. 254 251 
 
 V. Keman, 2 Dr. & War. 31 186 
 
 Molyneux, Re, I. R. 6 Eq. 411 256 
 
 Monckton v. Braddell, I. R. 7 Eq. 30 294, 297 
 
 Montefiore v. Brown, 7 H. L. C. 241 38, 41 
 
 Ex parte, Ue G. 171 ; 9 Jur. 562 . . . 219 
 
 V. Guedalla, W. N. 1868, 87 . .... 136 
 
 Montford v. Cadogan, 17 Ves. 485 ; 19 Ves. 633 . 12, 14, 149, 150, 151, 
 
 330, 334, 335 
 
TABLE OF CASES. Ixxi 
 
 PAGE 
 
 Montesquieu 1). Sandys, 18 Ves. 302 189,390 
 
 Montgomerie v. Wauchope, 4 Dow. 131 286 
 
 Monypenny i;. Bristow, 2 R. & M. 135 323 
 
 Moody V. Matthews, 7 Ves. 174 77 
 
 V. Walters, 16 Ves. 302 295 
 
 Moons V. De Bernales, 1 Russ. 301 219 
 
 Moore v. Darton, 4 D. G. & Sm. 517 28 
 
 ■ ■ V. Frowd, 3 M. & Cr. 45 197, 199 
 
 V. Moore, 1 Coll. 54 267 
 
 • • V. Moore, 18 Eq. 474 ; 43 L. J. Gh. 617 ; 30 L. T. N. S. 
 
 752 ; 22 W. R. 729 29, 32 
 
 V. Morris, 4 Drew. 33 250, 266 
 
 V. Petchell, 22 Bea. 172 39 
 
 • • V. Walter, 8 L. T. N. S. 448 ; 11 W. E. 713 . . . . 146 
 
 . V. Webster, 3 Eq. 267 ; 36 L. J. Ch. 429 ; 15 L. T. N. S. 
 
 460 ; 15 W. R. 167 271 
 
 Moorecroft v. Dowding, 2 P. W. 314 25 
 
 Moravian Society, Re, 26 Bea. 101 ; 6 W. R. 851 . . . . 210 
 
 Mores v. Huish, 5 Ves. 692 .. . .... 258 
 
 Morgan v. Malleson, 10 Eq. 475; 39 L. J. Ch. 680; 18 W. R. 
 
 1125 27 
 
 V. Minett, 6 Ch. D. 638 ; 36 L. T. N. S. 948 ; 25 W. R. 
 
 744 189, 190 
 
 V. Morgan, 10 Eq. 99 ; 39 L. J. Ch. 493 ; 22 L. T. N. S. 
 
 595 ; 18 W. R. 744 323 
 
 V. Morgan, 14 Bea. 72 91, 93, 96 
 
 V. 20 L. J. Ch. 109 . . . . . . 155 
 
 0. 5 Mad. 408 271 
 
 Re, 9 Eq. 58V . • 268 
 
 V. Stephens, 3 Gift 226 ; 7 Jur. N. S. 701 ; 4 L. T. N. S. 
 
 613 241 
 
 ». Swansea Urban Sanitary Authority, W. N. 1878, 179 . 225 
 
 V. Worthington, 38 L. T. N. S. 443 26 
 
 Moriarty v. Martin, 3 Ir. Ch. R. 26 53 
 
 Morice v. Durham, Bishop of, 10 Ves. 521 .... 56, 59 
 Morley v. Bird, 3 Ves. 631 69 
 
 V. Morley, 2 Ch. Ca. 2 98 
 
 Morrell v. Cowan, 7 Ch. D. 151 ; 47 L. J. Ch. 173 ; 37 L. T. N. S. 
 
 586 ; 26 W. R. 90 262 
 
 Morris v. Barrett, 3 Y. & J. 384 70, 71 
 
 u. Debenham, 2 Ch. D. 540; 34 L. T. N. S. 205; 24 W. R. 
 
 636 117,118 
 
 V. Livie, 1 Y. & C. C. C. 380 335 
 
 V. Preston, 7 Ves. 547 209 
 
Ixxii 
 
 TABLE OF CASES. 
 
 Morse v. Royal, 12 Ves. 355 193, 194, 318 
 
 Mortimer 0). Ireland, 11 Jur. 721 ; 16 L. J. Ch. 416 . . . . 24 
 
 V. Pioton, 12 W. E. 292 135 
 
 V. Watts, 14 Bea. 624 149 
 
 Mortimore v. Mortimore, 4 D. & J. 472 ; 7 W. E. 601 ; 33 L. T. 
 
 311 143 
 
 Mortlock V. BuUer, 10 Ves. 292 111,113,146 
 
 Mosley v. Mosley, 5 Ves. 248 . 
 
 V. Ward, 11 Ves. 581 
 
 Moss V. Cooper, IJ. & H. 352 . 
 Mostyn v. Mostyn, W. N. 1878, 180 
 Mousley v. Carr, 4 Bea. 49 . . . 
 Moyle V. Moyle, 2 E. & M. 710 . 
 Muckleston v. Brown, 6 Ves. 69 
 MucUow V. Fuller, Jac. 198 . 
 Muggeridge, Ee, Jokns. 625 ; 8 W. E. 234 : 
 6 Jur. N. S. 192 ; 1 L. T. N. S. 436 
 
 29 L. J 
 
 . . 161, 165 
 
 . 285 
 
 . . 81 
 
 . 166, 172 
 
 . . 283 
 
 98, 99, 238 
 
 80, 81 
 
 13, 239 
 
 Ch. 288; 
 
 . 109 
 
 Mulhallen v. Marum, 3 Dr. & W. 317 74 
 
 Mullings V. Trinder, 10 Ecj. 449; 39 L. J. Ch. 833; 18 W. E. 
 
 1186 120 
 
 Mulvany v. Dillon, 1 B. & B. 409 74, 185 
 
 Mumford v. Stohwasser, 18 Eq. 556 ; 43 L. J. Ch. 694 ; 30 L. T. 
 
 N. S. 859 ; 22 W. E. 833 ... . . 295, 297 
 Mumma v. Mumma, 2 Vern. 19 62 
 
 Munch V. Cockerell, 5 M. & Cr. 179 . . . . 237 
 
 Miindy v. Howe, 4 B. C. C. 224 . . . . . 173 
 Murless v. Franklin, 1 Swans. 13 . . . 62, 65, 66 
 
 Murphy v. Donnelly, I. E. 4 Eq. Ill . .... 7 
 
 V. O'Shea, 2 J. & L. 422 . . . . . . 187 
 
 Murray v. Barlee, 2 M. & K. 209 . . . . 257, 262, 263 
 
 V. Pinkett, 12 CI. & F. 764 . 218 
 
 Ee, W. N. 1868, 195 ... . . . 110 
 
 Murthwaite v. Jenkinson, 2 B. & C. 357 ; 3 D. & E. 765 . . . 4 
 
 Musters v. Wright, 2 D. G. & Sm. 777 251 
 
 Mutlow V. Bigg, 18 Eq. 246 ; 1 Ch. D. 385 ; 45 L. J. Ch. 282 ; 
 
 22 W. E. 469 . . 308 
 
 Myler v. Fitzpatrick, 6 Mad. 360 303 
 
 Nab v. Nab, 10 Mod. 404 
 Nagle, Ee, 6 Ch. D. 104 
 Nail V. Punter, 4 Sim. 474 ; 5 Sim. 
 Nandike v. Wilkes, Gilb. 814 
 Nanney v. Williams, 22 Bea. 452 
 
 555 
 
 . . 52 
 
 . 118 
 
 261, 265, 334 
 
 45 
 
 311, 323 
 
TABLE OF CASES. Ixxiii 
 
 PAGE 
 
 Naylor v. Arnitt, 1 Euss. & My. 501 103 
 
 Neale v. Davies, 5 D. M. & G. 258 206 
 
 Needham, Re, IJ. & L. 36 11,13 
 
 Nelley, Ee, W. N. 1877, 120 ; aff. ibid. 222 47 
 
 Nelson D. Booth, 3D. & J. 119 328 
 
 V. 5 W. E. 722 248 
 
 V. Bridport, 8 Bea. 547 245 
 
 V. Seaman, 1 D. F. & J. 368 205 
 
 Nesbitt V. Tredennick, 1 B. & B. 29 74, 76, 77 
 
 Nether Stowey Vicarage, Ee, 17 Eq.'156 ; 29 L. T. N. S. 604 ; 
 
 22 W. E. 180 105 
 
 Nevil V. Saunders, 1 Vern. 415 3 
 
 New V. Bonaker, 4 Eq. 655 ; 36 L. J. Ch. 846 ; 15 W. E. 
 
 1131 246 
 
 V. Jones, 1 Mam. & G. 668 n 196, 197, 201 
 
 Newcastle v. Lincoln, 3 Ves. 387 ; 12 Ves. 218 . . . .51 
 
 Newcomen v. Hassard, 4 Ir. Ch. E. 268 258 
 
 Newill V. Newill, 7 Oh. 253 ; 41 L. J. N. S. 432 ; 26 L. T. N. S. 
 
 175 ; 20 W. E. 308 57 
 
 Newlands v. Paynter, 10 Sim. 377 ; 4 M. & Cr. 408 . 247, 252 
 
 Newman, Ee, 9 Ch. 681 ; 43 L. J. Ch. 702 . . . . 105, 106 
 
 V. Warner, 1 Sim. N. S. 457 138 
 
 Newport v. Bryan, 5 Ir. Ch. E. 119 314, 333 
 
 V. Bury, 23 Bea. 30 202 
 
 Newton v. Askew, 11 Bea. 145 228 
 
 ■ V. Bennet, 1 B. C. C. 362 286 
 
 V. Newton, 6 Eq. 135 ; 4 Ch. 143 ; 38 L. J. Ch. 145 ; 
 
 19 L. T. N. S. 588 ; 17 W. E. 238 . . . . 295 
 
 Ee, 3 D. G. & Sm. 584 198 
 
 Nicholls, In the goods of, L. R. 2 P. & D. 461 . . . . 236 
 Nicholson v. MuUigan, I. E. 3 Eq. 308 62, 66 
 
 V. Tutin, 2 K. & J. 18 37 
 
 V. Wright, 5 W. E. 431 ; 26 L. J. Ch. 312 ; 29 L. T. 
 
 N. S. 52 ; 3 Jur. N. S. 313 ; 19 Jur. N. S. 1201 . . 209 
 
 Nicloson V. Wordsworth, 2 Swans. 365 10 
 
 Nightingale v. Lawson, 1 B. C. C. 440 . . . .75, 148, 150 
 
 Noad V. Backhouse, 2 Y. & C. C. C. 529 273 
 
 Noble V. Edwardes, 5 Ch. D. 378; 37 L. T. N. S. 7 . . . . Ill 
 
 V. Meymott, 14 Bea. 471 ; 20 L. J. Ch. 612 . .11, 13, 208 
 
 Noel V. Henley, 7 Price, 241 97 
 
 V. Jones, 16 Sim. 311 .... ... 180 
 
 Nokes V. Seppings, 2 Ph. 19 274, 275, 276 
 
 Norfolk V. Brown, Pr. Ch. 80 . 60 
 
 Norfolk's case, Duke of, 3 Ch. Ca. 5 ; 1 Vern. 164 ... 152 
 
Ixxiv 
 
 TABLE OF CASES. 
 
 PACK 
 
 Noms V. Chamters, 3 D. F. & J. 584; 29 Bea. 246; 30 L. J. Ch. 
 
 286 ; 7 Jur. N. S. 689 ; 9 "W. R. 794 ; 4 L. T. N. S. 345 245 
 
 Ex parte, 4 Ch. 280 ; 38 L. J. Bk. 5 ; 19 L. T. N. S. 755 ; 
 
 17W. R 452 330 
 
 V. Frazer, 15 Eq. 318; 21 W. R. 434 . . . . 79, 81 
 
 V. Le Neve, 3 Atk. 38 77 
 
 • II. Wright, 14 Bea. 303 ... . 135, 140, 141, 142 
 
 Northen v. Carnegie, 4 Drew. 587 ; 7 W. R. 481 . . . . 58 
 
 Northumberland v. Egremont, 1 Ed. 435 159 
 
 Norton v. Turvill, 2 P. W. 144 260, 261 
 
 Norway u Norway, 2 M. & K. 278 11 
 
 Notley v. Palmer, llJnr. N. S. 968 174,176 
 
 314 
 
 140 
 
 162 
 
 83 
 
 23 
 
 39 
 
 S. 635 ; 33 
 
 Obeb v. Bishop, 1 D. F. & J. 137; 8^^. R. 102 ; 29 L. J. Ch. 148; 
 
 6 Jur. N. S. 132 ; 1 L. T. N. S. 151 
 O'Brian v. Fitzgerald, 1 Ir. Ch. R. 293 .. . 
 O'CaUaghan v. Cooper, 5 Ves. 117 . 
 Occleston v. Fullalove, 9 Ch. 147; 43 L. J. Ch. 297 . 
 Ockleston v. Heap, 1 D. G. & Sm. 640 . 
 O'Connor v. Haalam, 5 H. L. C. 170 . 
 Oddie V. Brown, 4 D. & J. 179 ; 7 "W. R. 472 ; 5 Jur. N, 
 
 L. T. 174 
 
 O'Ferrall v. O'FerraU, LI. & G. (Plunk.) 79 
 
 Offen 1). Harman, 1 D. F. & J. 253 ; 6 Jur. N. S. 487 
 
 Offley V. Offley, Pr. Ch. 27 
 
 Oglander v. Oglander, 4 D. G. & Sm. 381 
 Ogle, Ex parte, 8 Ch. 711 ; 42 L. J. Bk. 99 ; 21 W. R. 938 
 Okeden v. Okeden, 1 Atk. 550 .... 
 O'Keefe v. Calthorpe, 1 Atk. 17 . . . 
 
 Oldham v. Litchfield, 2 Vem. 506 .... 
 
 Oldin V. Samhom, 2 Atk. 15 189 
 
 Oliver v. Court, 8 Price, 166 . . . . 114, 115, 120, 192, 195 
 
 Oram v. Richardson, W. N. 1877, 13 130 
 
 Ord, Ex parte, 2 Mont. & A. 724 219 
 
 V. Noel, 5 Mad. 438 Ill, 112, 113 
 
 O'Reilly v. Alderson, 8 Ha. 104 210 
 
 D. Walsh, I. R. 6 Eq. 555 308 
 
 Orme u Wright, 3 Jur. 19 112 
 
 Orr V. Newton, 2 Cox, 277 90 
 
 Osbom, Re, 12 Eq. 392 ; 40 L. J. Ch. 706 ; 26 L. T. N. S. 151 . 210 
 
 V. Osborne, 6 Ves. 455 206 
 
 Ottley V. Gilby, 8 Bea. 602 228 
 
 Otway-Cave v. Otway, 2 Eq. 725 ; 15 W. R. 6 . . . 168, 169 
 
 . 152 
 . 149 
 118, 138 
 . 165 
 . 205 
 
 164 
 
 216 
 
 79 
 
TABLE OF CASES. Ixxv 
 
 PAGE 
 
 Owen V. Delamere, 15 Eq. 139 90 
 
 V. Foulkes, 6 Ves. 630 n 191 
 
 V. Homan, 4 H. L. C. 997 261 
 
 V. Williams, Amb. 734 ... . . 74, 75 
 
 Packman and Moss, Ee, 1 Ch. D. 214 ; 45 L. J. Ch. 54 ; 34 L. T. 
 
 N. S. 110 ; 24 W. R. 170 . . . . . .21 
 
 Paddon v. Richardson, 7 D. M. & G. 563 ; 26 L. T. N. S. 33 ; 
 
 19 Jur. N. S. 1192 88, 91, 138 
 
 Page V. Adam, 4 Bea. 269 126, 127, 128 
 
 V. Cooper, 16 Bea. 396 ; 1 W. R. 136 ; 20 L. T. N. S. 287 
 
 122, 123 
 
 V. Home, 11 Bea. 233 35 
 
 V. Way, 3 Bea. 20 178 
 
 Painter, Ex parte, 2 D. & C. 584 .209 
 
 Palairet v. Carew, 32 Bea. 564 ; 9 Jur. N. S. 426 ; 11 W. R. 449 ; 
 
 8 L. T. N. S. 139 113, 207, 223 
 
 Palk V. Clinton, 12 Ves. 48 123 
 
 Palmer v. Flower, 13 Eq. 250 ; 41 L. J. Ch. 193 ; 25 L. T. N. S. 
 
 816 ; 20 W. R. 174 180 
 
 V. Jones, 1 Vern. 144 327 
 
 V. MitcheU, 2 M. & K. 672 n 286 
 
 V. Newell, 8 D. M. & G. 74 170 
 
 V. Simmonds, 2 Drew. 225 ; 2 W. R. 313 . . . 53, 54 
 
 V. Wakefield, 3 Bea. 227 181 
 
 ■ V. Wright, 10 Bea. 234 273 
 
 V. Young, 1 Vern. 276 76 
 
 Pannell v. Hurley, 2 CoU. 241 294, 302 
 
 Papillon V. Voice, 2 P. W. 470 48 
 
 Pare v. Clegg, 29 Bea. 589 ; 30 L. J. Ch. 742 ; 7 Jur. N. S. 1136 ; 
 
 9 W. R. 795 ; 4 L. T. N. S. 669 309 
 
 Parker w. Bloxam, 20 Bea. 295 138 
 
 V. Brooke, 8 Ves. 583 ; 9 Ves. 583 . . 77, 247, 249, 299 
 
 V. Carter, 4 Ha. 416 271 
 
 u. McKenna, 10 Ch. 118 ; 44 L. J. Ch. 425 ; 31 L. T. N. S. 
 
 739 ; 23 W. R. 271 183, 187 
 
 V. Manning, 7 T. R. 537 221 
 
 Parkes v. White, 11 Ves. 220 ... 183, 184, 258, 267, 317 
 
 Parkinson v. -Hanbury, 2 D. G. & Sm. 450 ; 8 W. R. 575 . . 187 
 Parnell 1;. Hingston, 3 Sm. & G. 337 ; 4 W. R. 794 . . . 28, 34 
 
 Parry v. Warrington, 6 Mad. 155 .147 
 
 Parsons ti. Baker, 18 Ves. 476 .53, 56 
 
 V. Coke, 10 W. R. 641 172 
 
Ixxvi TABLE OF CASES. 
 
 PAGE 
 
 Partington v. Reynolds, 4 Dr. 253 ; 6 W. R. 615 . . • • 328 
 Pascoe V. Swan, 27 Bea. 508 ... . ... 323 
 
 Pashler v. Vincent, 8 Ch. D. 825 • 278 
 
 Passingham v. Sherbom, 9 Bea. 424 185, 215 
 
 Patersoni). Murphy, 11 Ha. 92 33,42 
 
 Pattison v. Hawkesworth, 10 Bea. 375 316 
 
 Paul V. Compton, 8 Ves. 380 53 
 
 Pawlett, Ex parte, 1 Ph. 570 135 
 
 Payne v. Evens, 18 Eq. 356 317, 318 
 
 Ex parte, 2 Y. & 0. C. C. 636 54 
 
 V. Little, 26 Bea. 1 249 
 
 V. Mortimer, 4 D. & J. 447 30 
 
 Peacham v. Daw, 6 Mad. 98 275 
 
 Peacock v. Monk, 2 Ves. Sen. 190 257, 261 
 
 Peacocke v. Pares, 2 Keen. 689 158 
 
 Pearce v. Gardner, 10 Ha. 287 ; 1 W. R. 98 116 
 
 V. Loman, 3 Ves. 135 166, 168 
 
 V. Pearce, 22 Bea. 248 ; 25 L. J. Ch. 893 ; 28 L. T. 34 ; 
 
 2 Jur. N. S. 843 14, 207 
 
 Pearse v. Baron, Jac. 158 50 
 
 V. Green, IJ. & W. 135 228, 284 
 
 w. Pearse, W. N. 1877, 120 255 
 
 Pearson v. Amicable Assurance Off., 27 Bea. 229 .... 28 
 
 V. Benson, 28 Bea. 598 186 
 
 V. Lane, 17 Ves. 101 114 
 
 V. Pearson, 1 Sch. & L. 10 115 
 
 Re, 21 W. R. 401 109 
 
 Peatfield v. Benn, 17 Bea. 522 205 
 
 Pechel V. Fowler, 2 Anst. 549 279 
 
 Peckham v. Taylor, 31 Bea. 250 ; 6 L. T. N. S. 487 . . 25, 33, 34 
 
 Peers v. Ceeley, 15 Bea. 211 232 
 
 PeiRon v. Brooking, 25 Bea. 218 ; 4 L. T. N. S. 731 . . 133, 267 
 PeU v. De Winton, 2 D. & J. 13 ; 27 L. J. Ch. 230 ; 4 Jur. N. S. 
 
 225 ; 6 W. R. 179 ; 30 L. T. 252 125 
 
 Pelly V. Bascombe, 4 Giff. 390 ; 34 L. J. Ch. 233 ; II W. R. 66 ; 
 
 2N. R. 263 311 
 
 Pember v. Mathers, 1 B. C. C. 52 294 
 
 Pemberton v. McGill, 1 Dr. & Sm. 266 ; 3 W. R. 340 ; 3 Eq. Rep. 
 
 571 ; 8 W. R. 290 ; 29 L. J. Ch. 499 266 
 
 Penfold V. Bouch, 4 Ha. 271 223 
 
 V. Mould, 4 Eq. 562 ; 36 L. J. Ch. 981 ; 17 L. T. N. S. 
 
 59 ; 15 W. R. 1196 . . .... 32 
 
 Pennell v. Deffell, 4 D. M. & G. 372 ; 1 W. R. 499 
 
 99, 218, 300, 302, 303 
 
TABLE OF CASES. Ixxvii 
 
 PAGE 
 
 Peimell v. Dysart, 27 Bea. 542 227, 234 
 
 V. Home, 3 Drew. 337 . 322 
 
 Penny v. Allen, 7 D. M. & G. 426 ; 5 W. R 303 ; 26 L. J. Oh. 
 
 495 ; 29 L. T. N. S. 41 ; 3 Jur. N. S. 530 . . . . 313 
 
 Peppercorn v. Way man, 5 D. G. & Sm. 230 ; 21 L. J. Ch. 827 . 12 
 
 Perfect v. Curzon, 5 Mad. 442 161 
 
 Perkes, Ex parte, 3 M. D. & D. 385 188 
 
 Perrot v. Perrot, 3 Atk. 94 222 
 
 Perry v. Phelips, 4 Ves. 116 305 
 
 V. Shipway, 1 GifF. 1; 7 W. R. 406, 574 ; 5 Jur. N. S. 353 ; 
 
 33 L. T. 102, 251 15 
 
 Peter v. NicoUs, 11 Eq. 391 ; 24 L. T. N. S. 381 ; 19 W. R. 618 . 36 
 
 Peterson v. Peterson, 3 Eq. Ill ; 36 L. J. Ch. 101 ; 15 W. R. 164 231 
 
 Petre, Ex parte, 7 Ves. 403 174 
 
 • V. Petre, 1 Dr. 371 ; 1 W. R. 139, 362 ; 21 L. T. N. S. 136 
 
 75, 307 
 
 Rett V. Fellows, 1 Swans. 561 172 
 
 Pettiward v. Prescott, 7 Ves. 541 323 
 
 Petts V. Lee, 4 Vin. Abr. 131, pi. 8 256 
 
 Petty V. Styward, 1 Ch. Rep. 31 69 
 
 Peyton, Re, 7 Eq. 463 ; 38 L. J. Ch. 477 ; 20 L. T. N. S. 728 
 
 109, 143, 146 
 
 10 W. E. 515 ; 30 Bea. 252 .... 109, 112 
 
 Phayre v. Peree, 3 Dow. 116 305 
 
 Phelps, Re, 9 Mod. 357 215 
 
 Phen6,Re, 5 Ch. 139 ; 39 L. J. Ch. 316 ; 22 L. T. N. S. Ill ; 
 
 18 W. R. 303 235 
 
 Philbrick, Re, 34 L. J. Ch. 368 ; 12 L. T. N. S. 261 ; 11 Jur. 
 
 N. S. 558 ; 13 W. R. 517 232, 233 
 
 Philips V. Philips, 3 Ha. 281 39, 40 
 
 Phillipo V. Mimnings, 2 M. & Cr. 309 . . . 13, 240, 307, 308 
 Phillips V. Edmunds, 3 East, 440 118 
 
 Ex parte, 2 Deac. 334 ; 6 L. J. Bank. 74 . . . .15 
 
 V. James, 2 Dr. & Sm. 404, aff. ; 13 W. R. 934 . . . 46 
 
 V. PhilHps, 1 M. & K. 649 59 
 
 V. Kay, 40; 23 L. J. Ch. 7 ; 18 Jur. 69 ; 22 L. T. 
 
 236 ; 2 Eq. Rep. 302 179 
 
 I,. 4 D. P. & J. 216 ; 31 L. J. Ch. 321 ; 5 L. T. 
 
 N. S. 655 ; 8 Jur. N. S. 145 ; 10 "W. R. 236 . . . . 295 
 PhUlipson V. Gatty, 7 Ha. 516 136, 141, 319 
 
 V. Kerry, 32 Bea. 628 ; 11 W. R. 1034 . . . . 31 
 
 Phipps V. Lovegrove, 16 Eq. 80 ; 42 L. J. Ch. 892 ; 28 L. T. N. 
 
 S. 584 ; 21 W. R. 590 234, 291, 292 
 
 Pickard v. Anderson, 13 Eq. 608 ; 26 L. T. N. S. 725 . . . 137 
 
Ixxviii 
 
 TABLE OF CASES. 
 
 Pickard v. Hine, 5 Ch. 274 
 Pickeriug v. Pickering, 4 M. & Cr. 289 
 
 V. Stamford, 2 Ves. Jun. 283 
 
 V. Vowles, 1 B. C. C. 197 
 
 Pickup V. Atkinson, 4 Ha. 625 . 
 Pidgeon v. Spencer, "W. N. 1867, 87 
 Pierce v. Brady, 23 Bea. 64 
 Piercy v. Roberts, 1 M. & K. 4 
 Pierson v. Garnet, 2 B. C. C. 38, 226 
 Piety V. Stace, 4 Ves. 620 
 Piggott V. Green, 6 Sim. 72 
 Pilcher v. Rawlins, 7 Ch. 259; 41 L. J, 
 
 921 ; 20 W. R. 281 
 Pilkington v. Boughey, 12 Sim. 114 . 
 
 PAGE 
 
 260, 262, 264 
 
 . 91, 92, 93 
 
 316, 317 
 
 75, 149 
 
 . . 92 
 
 92 
 
 289 
 
 . 177 
 
 56, 57, 103, 159 
 
 . 283, 286 
 
 200 
 
 Ch. 485 ; 25 L. T. N. S. 
 
 . 293, 294, 297 
 53 
 
 Pilling V. Armitage, 12 Ves. 80 294 
 
 Pince V. Beattie, 9 Jur. N. S. 1119; 11 W. R. 979; 2 N. R. 546 . 143 
 
 Pink V. De Thuisey, 2 Mad. 157 180 
 
 Pinkett v. Wright, 2 Ha. 120; 12 CI. & F. 764 . 99, 218, 304, 327 
 Pisani v. Att.-Gen. Gibraltar, L. R. 5 P. C. 517 . . 189, 190, 191 
 Piatt V. Routh, 3 Bea. 257; 6 M. & W. 756, 791; 10 CI. & P. 
 
 257 . . 233 
 
 Playford v. Hoare, 3 Y. & J. 175 8 
 
 Plenty i;. West, 16 Bea. 356 212 
 
 Plumb V. Fluitt, 2 Anst. 438 294, 298 
 
 Plumer v. Gregory, 18 Eq. 627; 43 L. J. Ch. 616 . . . . 330 
 Poad V. Watson, 6 E. & B. 606; 25 L. J. Q. B. 396; 2 Jur. N. S. 
 
 1135; 3 W. R. 488 5 
 
 Pocock V. Reddington, 5 Ves. 794 136, 285 
 
 Pole V. Pole, 1 Ves. Sen. 76 63 
 
 V. 2 Dr. & Sm. 420 73 
 
 PoUard v. Doyle, 1 Dr. & Sm. 319 ; 9 W. R. 28 ; 6 Jur. N. S. 1139; 
 
 3 L. T. N. S. 432 196 
 
 Pollock V. Croft, 1 Mer. 181 104 
 
 Pomfret v. Windsor, 2 Ves. Sen. 487 166 
 
 Pool-Bathurst, Re, 2 Sm. & Giff. 173 ; 18 Jur. 568 ; 20 L. T. 218 . 212 
 Pooley V. Quilter, 4 Drew. 189; 2 D. & J. 327; 27 L. J. Ch. 374; 
 
 4 Jur. N. S. 345 ; 6 W. R. 402 ; 31 L. T. 64 . 182, 183, 184, 188 
 
 Pope *. Pope, 10 Sim. 1 55 
 
 Porter v. Baddeley, 5 Ch. D. 542 91, 93 
 
 Re, 25 L. J. Ch. 482 212 
 
 Portlock V. Gardner, 1 Ha. 594 310, 318 
 
 Portsmouth v. Fellows, 5 Mad. 450 217 
 
 Pott V. Todhunter, 2 Coll. 76 35 
 
 Poulet V. Poulet, 1 Vern. 204 167, 168 
 
TABLE OF CASES. 
 
 Ixxix 
 
 Poulett V. Hood, 5 Eq. 115 ; 37 L. J. Oh. 224 ; 17 L. T. N. S. 486 ; 
 
 16 W. R. 323 . . 110, 121 
 
 Poulson, Ex parte, De G. 79 220 
 
 Powdrell v. Jones, 2 Sm. & G. 407; 3 W. R. 32; 24 L. J. Ch. 123; 
 
 24 L. T. 88 270 
 
 Powell V. Evans, 5 Ves. 838 87, 114, 137 
 
 V. Merrett, 1 Sm. & G. 383 ; 1 W. R. 243 ; 22 L. J. Ch. 408 ; 
 
 17 Jtir. N. S. 449; 21 L. T. N. S. 98 . . . . 243 
 
 V. Price, 2 P. W. 535 45 
 
 Re, 10 Ha. 134 284 
 
 Powis «. Burdett, 9 Ves. 428 161 
 
 Powys V. Mansfield, 3 M. & Or. 359 65 
 
 Prees v. Coke, 6 Ch. 645 186, 187 
 
 Prendergast v. Lushington, 5 Ha. 171 88 
 
 V. Prendergast, 3 H. L. C. 218 95 
 
 Prevost V. Clarke, 2 Madd. 458 52 
 
 Price V. Blakemore, 6 Bea. 507 145, 146, 304 
 
 V. Jenkins, 5 Ch. D. 619; 46 L. J. Ch. 805; 37 L. T. N. 
 
 S.51 36 
 
 V. Price, 14 Bea. 598 30, 32 
 
 Re, 6 Eq. 460; 16 L. T.N. S. 760 40 
 
 ■ V. Seys, Barn. 117 169 
 
 Prichard v. Ames, T. & E. 222 247, 256 
 
 V. Langher, 2 Vern. 197 233 
 
 V. Wilson, 10 Jur. N. S. 330 280 
 
 Priddy v. Rose, 3 Mer. 86 335 
 
 • Pride v. Bnbb, 7 Ch. 64 ; 41 L. J. Ch. 105 ; 25 L. T. N. S. 890 ; 20 
 
 W. R. 220 258 
 
 V. Fookes, 2 Bea. 432 131, 324, 337 
 
 Priestman v. Tindall, 24 Bea. 244 333 
 
 Prime v. SaveU, W. N. 1867, 227 336 
 
 Piince V. Hine, 27 Bea. 345; 26 Bea. 634. . . . 16, 173, 176 
 
 Probert, Re, 1 W. R. 237 210 
 
 Procter v. Robinson, 35 Bea. 329; 15 W. R. 138; 15 L. T. N. S. 
 
 431 84 
 
 Proud V. Proud, 32 Bea. 234; 32 L. J. Ch. 125; 11 W. R. 101; 7 
 
 L. T. N. S. 553 311 
 
 Proudfoot V. Hume, 4 Bea. 476 276 
 
 Proudley v. Fielder, 2 M. & K. 57 251 
 
 Provost, &c., of Edinburgh v. Aubery, Amb. 236 . . . . 246 
 Prowse V. Spurgin, 5 Eq. 99; 37 L. J. Ch. 251; 17 L. T. N. S. 590 ; 
 
 16 W. R. 413 231 
 
 Pryor, Re, W. N. 1876, 141 15 
 
 Pryse, Re, 10 Eq. 531; 18 W. R. 1064 118 
 
IXXX TABLE OF CASES. 
 
 PAGE 
 
 Pugb, Re, 17 Bea. 336 262 
 
 V. Vaughan, 12 Bea. 517 . . ... 222 
 
 Pulling V. Eeddy, 1 Wils. 21 168 
 
 Pulvertoft V. Pulvertoft, 18 Ves. 84 36 
 
 Purcell V. Blennerhassett, 3 J. & L. 24 316 
 
 Purefoy v. Purefoy, 1 Vern. 28 39 
 
 Pusbnan v. FiUiter, 3 Ves. 7 52, 54 
 
 PybTis V. Smith, 1 Ves. Jun. 193 258, 327 
 
 Pye, Ex parte, Dubost, 18 Ves. 140, 149; 2 W. & T. L. C. 356 
 
 30, 32, 33, 34, 170 
 
 Pym V. Lockyer, 5 M. & Cr. 29 65 
 
 Pyrab v. Woodcock, 24 L. T. N. S. 407 322 
 
 Pyrke v. Waddingbam, 10 Ha. 1 120 
 
 QuAREELL V. Beckford, 14 Ves. 177 . . . . ' . .276 
 Quinton v. Frith, I. R. 2 Eq. 396 ... . 241, 310, 311 
 
 B. u White, 4 Car. & P. 46 282 
 
 Eabbidge, Ex parte, 8 Ch. D. 367 73 
 
 Baby v. Kidehalgb, 7 D. M. & G. 104 ; 3 W. R. 344 . . 131, 335 
 Eackhain v. SiddaU, 1 MoN. & G. 607 . . . . 5, 14, 241 
 
 Raikes v. Raikes, 32 Bea. 403 205 
 
 Rainsdon, Re, 4 Drew. 446 268 
 
 Rakestraw v. Brewer, 2 P. W. 511 74, 75 
 
 Randall v. Errington, 10 Ves. 423 . . 183, 191, 193, 194, 195, 318 
 
 V. Eussell, 3 Mer. 196 74 
 
 Ranking, Ee, W. N. 1868, 243 234 • 
 
 Eansomi;. Boyd, W.N. 1877, 236 277 
 
 Ransome v. Burgess, 3 Eq. 780 ; 36 L. J. Ch. 84 . . . . 173 
 Raphael v. Boehm, 11 Ves. Ill ; 13 Ves. 407 ... . 287 
 
 Re, 9 Eq. 233 ; 39 L. J. Ch. 200 ; 18 W. R. 247 . . 40 
 
 Rasbleigh v. Master, 3 B. C. C. 99 140 
 
 Ravenbill v. Dansey, 2 P. W. 179 162, 167 
 
 Ravenshaw v. HoUier, 7 Sim. 3 41 
 
 Eawbone, Ee, 3 K. & G. 476 289 
 
 Rawe V. Chichester, Amb. 715 73, 78 
 
 Raworth v. Parker, 2 K. & J. 163 ; 4 W. R. 273 ; 25 L. J. Ch. 
 
 117 ; 27 L. T. N. S. 62 38 
 
 Ray u Adams, 3 M. & K. 237 53 
 
 Ex parte, 1 Mad. 199 255, 256 
 
 Rayne v. Baker, 1 Giff. 241 299 
 
 Read v. Shaw, cited 3 Y. & C. 375 . '. 119 
 
 V. Snell, 2 Atk. 642 49 
 
 Reech v. Kennegal, 1 Ves. Sen. 123 80, 81 
 
TABLE OF CASES. Ixxxi 
 
 PAGE 
 
 Reeve v. Parkins, 2 J. & W. 390 . . . . . 280 
 
 V. Reeve, 1 Vem. 219 .. . .... 166 
 
 Reeves v. Baker, 3 Bea. 364 217 
 
 V. Creswiek, 3 Y. & C. 715 150 
 
 Rede V. Oakes, 4 D. J. & Sm. 505 ; 34 L. J. Ch. 145 ; 11 L. T. 
 
 N. S. 549 ; 10 Jur. N. S. 1246 ; 13 W. R. .?03 117, 118, 120, 280 
 
 Redhead, Re, W. N., 1878, 194 134 
 
 Redington v. Redington, 3 Ridg. P. C. 106 . . . 62, 63, 65, 67 
 
 Reg. V. Day, 3 E. & B. 859 222 
 
 Rehden v. Wesley, 29 Bea. 213 99, 238, 331 
 
 Reid i;. Shergold, 10 Ves. 370 117,119 
 
 Reilly V. Reilly, 34 Bea. 406 . . 121 
 
 Reiner v. Salisbury, 2 Ch. D. 378 ; 24 W. R. 843 .. . 245 
 
 Remington, Re, 3 D. & C. 24 209 
 
 Remnant v. Hood, 2 D. F. & J. 396 ; 30 L. J. Ch. 71 ; 7 W. R. 
 
 606 ; 6 Jur. N. S. 1173 ; 3 L. T. N. S. 485 . . 160, 163, 284 
 
 Rendell v. Carpenter, 2 Y. & J. 484 39 
 
 Rendlesham u Meux, 14 Sim. 249 ... . . 112 
 
 Renshaw, Re, 4 Ch. 783 ; 17 W. R. 1035 . 209, 210 
 
 Reresby v. Newland, 2 P. W. 93 . . . . .163 
 
 Reynell v. Reynell, 10 Bea. 21 3 
 
 Reynish v. Martin, 3 Atk. 330 . . . 105, 162 
 
 Reynolds, Ex parte, 5 Ves. 707 193, 215 
 
 Rich 1). Cockell, 9 Ves. 375 247, 248, 264 
 
 Richards v. Delbridge, 18 Eq. 11 ; 43 L. J. Ch. 459 . . 27, 28, 29 
 
 c. Perkins, 3 Y. & C. 299 273 
 
 1). Richards, Johns. 754 168 
 
 Richardson v. Bank of England, 4 M. & Cr. 165 .... 275 
 
 V. Chapman, 7 B. P. C. 400 103 
 
 ■ ■ Ex parte. Buck. 209 ; 3 Mad. 138 .... 90 
 
 V. Richardson, 3 Eq. 686 ; 36 L. J. Ch. 653 ; 15 W. R. 690 27 
 
 Rickards v. Gledstanes, 3 Giffi 298 290 
 
 Rider v. Kidder, 10 Ves. 360 64, 68 
 
 Ridout V. Plymouth, 1 Dick. 68 274 
 
 Rigden v. Vallier, 2 Ves. Sen. 258 69 
 
 Ridgway v. Newstead, 3 D. F. & J. 474 ; 30 L. J. Ch. 889 ; 7 Jur. 
 
 N. S. 451 ; 9 "W. R. 401 ; 4 L. T. N. S. 6, 492 . . . . 330 
 
 Rippen v. Priest, 13 C. B. N. S. 308 22 
 
 Rippon V. Norton, 2 Bea. 63 178 
 
 Roberdeau v. Rous, 1 Atk. 543 ... . . . 244 
 
 Roberts v. Dixall, 2 Eq. Ca. Ab. 668, pi. 19 169 
 
 V. Dixwell, 1 Atk. 607 i ... . 48, 50, 271 
 
 v. Gordon, 6 Ch. D. 531 ; 4 L. J. Ch. 749 ; 37 L. T. N. S. 
 
 627. .... . 11,12,308 
 
 / 
 
Ixxxii TABLE OF CASES. 
 
 PAGE 
 
 RoLerts, Re, 7 Jur. N. S. 818 213 
 
 V. Tunstall, 4 Ha. 257 194, 195, 320 
 
 Robertson v. Armstrong, 28 Bea. 123 . . . . 18, 19, 119 
 
 i).Norris, 1 Giff. 421; 4 Jur. N. S. 155, 443; 30 L. T. 
 
 253 186, 310 
 
 Robison v. Killey, 30 Bea. 520 176 
 
 Robinson u Cleator, 15 Ves. 526 ... . 167,181 
 
 V. Cuming, 1 Atk. 473 3, 6 
 
 V. Lowater, 5 D. M. & G. 272 ; 2 W. R. 181, 394 ; 18 Jur. 
 
 321, 363; 23 L. T. 17 ; 2 Eq. Rep. 337 . 126, 128 
 
 . V. Pett, 3 P. W. 249 . . . . . . 196 
 
 ■«. Preston, 4 K. & J. 505 . . 69,70,71 
 
 V. Ridley, 6 Mad. 2 192 
 
 V. Robinson, 1 D. M. & G. 249 . 87, 88, 90, 131, 143, 283 
 
 V. Wheelwright, 6 D. M. & G. 535 ; 4 W. R. 427 ; 25 L. 
 
 J. Ch. 385; 27 L. T. N. S. 73 ; 20 Jur. N. S. 554 . . . 267 
 Robson V. Attorney-General, 10 CI. & F. 471 . . . .244 
 Roche V. O'Brien, 1 B. & B. 330 194 
 
 Re, 1 C. & L. 308 ; 2 Dr. & War. 287 209 
 
 Rochford v. Hackman, 9 Ha. 480 84 
 
 Rochfortu Fitzmaurice, 2 Dr. &W. 1 .... 8,9,44,47 
 
 Rocke V. Rocke, 9 Bea. 66 . 84 
 
 Roe t). Reade, 8 T. R. 118 '21 
 
 Rogers v. Earle, 1 Dick. 294 46 
 
 ■ Ex parte, 8 D. M. & G. 271 ; 20 Jur. N. S. 480 . . 289, 290 
 
 V. Ingham, 3 Ch. D. 351; 35 L. T. N. S. 677; 25 W. R. 
 
 338 ... . ... 231,232 
 
 r. Rogers, 3 P. W. 193 . .... 59 
 
 V. Skillicorne, Amb. 188 . . . 126, 127 
 
 V. Soutten, 2 Keen, 598 .65 
 
 Rolfe V. Gregory, 4 D. J. & Sm. 576 ; 34 L. J. Ch. 274 ; 8 Jur. N. S. 
 
 606; 10 \V. R. 711 .293,296,322 
 
 Romford Market case, 1 W. & T. L. C. 44 . ... 73 
 
 Ronayne, Re, 13 Ir. Ch. R. 444 . . . . . . 191 
 
 Rook V. Kensington, 2 K. & J. 753 234 
 
 Roper-Curzon v. Roper-Curzon, 11 Eq. 452 ; 24 L. T. N. S. 406 178, 179 
 
 Roper V. Radcliffe, 9 Mod. 171 58 
 
 V. Roper, 3 Ch. D. 714 ; 35 L. T. N. S. 155 . . . . 269 
 
 Rose V. "Watson, 10 H. L. C. 678 72 
 
 Rosenthall, Re, 6 W. R. 139 251 
 
 Rosher v. Williams, 20 Eq. 210; 44 L. J. Ch. 419; 32 L. T. N. S. 
 
 387 ; 23 W. R. 561 36 
 
 Ross V. Ross, 12 Bea. 89 275 
 
 Rossiter u Trafalgar Assurance Association, 27 Bea. 377 . . . 113 
 
TABLE OF CASES. Ixxxiii 
 
 PAGE 
 
 Eosslyn, Re, 16 Sim. 391 153 
 
 Rothwell V. Rothwell, 2 S. & S. 217 . . . . . . 275 
 
 Eowbotham v. Dunnett, 8 Ch. D. 437 . . . .81 
 
 Rowe V. Rowe, 29 Bea. 276 94 
 
 Rowland v. Cuthbertson, 8 Eq. 466 ; 20 L. T. N. S. 938 ; 17 W. 
 
 E. 907 270 
 
 V. Morgan, 13 Jur. 23 230 
 
 Rowley v. Adams, 2 H. L. C. 725 . . . . . .88 
 
 V. Vnwin, 2 K. & J. 138 249 
 
 Rowth V. Howell, 3 Ves. 565a 99 
 
 Roy V. Gibbon, 4 Ha. 65 275 
 
 Rundle v. Rundle, 2 Vem. 264 63 
 
 Rushbrook r. Lawrence, 8 Eq. 25; 5 Ch. 3 ; 39 L. J. Cli. 93; 21 
 
 L. T. N. S. 477 ; 18 W. R. 101 186 
 
 Rusbout V. Rnsbout, 2 B. P. C. 89 169 
 
 Russell V. Jackson, 10 Ha. 204 79, 81, 82 
 
 V, Plaice, 18 Bea. 21 ; 2 W. R. 243; 23 L. J. Ch. 441 ; 18 
 
 Jut. 254 ; 22 L. T. 326 123 
 
 Re, 15 Eq. 26 ; 27 L. T. N. S. 706 ; 21 W. R. 97 . . . 289 
 
 V. St. Aahjn, 2 Ch. D. 398 ; 46 L. J. Ch. 641 ; 35 L. T. N. 
 
 S. 395 ... 170 
 
 Ryall V. Rowles, 2 W. & T. L. C. 770 . . , . . 288 
 
 V. Ryall, 1 Atk. 59 ; cited Amb. 412 . . . 67, 68 
 
 Eycroft v. Christy, 3 Bea. 238 . . . . 29, 241, 248 
 Ryder v. Bickerton, 3 Swans. 80 n. 137, 334 
 
 Sabin v. Heape, 27 Bea. 553 ; 29 L. J. Ch. 79 ; 1 L. T. K. S. 51 ; 5 
 
 Jxii. N. S. 1146; 8 W. R. 120 . . . . 126, 128, 129 
 Sackville-West v. Holmesdale, L. R. 4 H. L. 543 ; 39 L. J. Ch. 
 
 505 44, 45, 47, 48, 49, 10 
 
 Sadler v. Hobbs, 2 B. C. C. 114 18 
 
 Saiusbury i;. Jones, 5 M. & Cr. 1 113 
 
 St. John V. Bonghton, 9 Sim. 219 316 
 
 Sale V. Moore, 1 Sim. 534 53, 54, 55 
 
 Salmons Cutts, 4 D. G. & Sm. 125; 16 Jnr. 623 . . . 194 
 
 Salsbury v. Bagott, 2 Swans. 608 296 
 
 Salter v. Cavanagb, 1 Dr. & Wal. 684 . . . . 59, 307, 313 
 Saltmarsh v. Barrett, 3 D. P. & J. 279 ; 31 Bea. 349 ; 30 L. J. Ch. 
 
 853 ; 9 W. R. 564 . . 59, 283 
 
 Salusbury v. Denton, 3 K. & J. 529 103 
 
 Salway v. Salway, 2 R. & My. 215^; 3 CI. & P. 44 . . . . 99 
 
 Sampayo v. Gould, 12 Sim. 426 !jO 
 
 Sander v. Heathfield, 19 Eq. 21; 44 L. J. Ch. 117; 31 L. T. N. S. 
 
 400 ; 23 W. R. 331 . 329 
 
 /2 
 
Ixxxiv TABLE OP CASES. 
 
 PAGE 
 
 Sanders v. Richards, 2 Coll. 568 123 
 
 Sanderson, Re, 3 K. & J. 497 180, 181 
 
 V. Walker, 3 Ves. 601 182, 183, 193 
 
 Sands 11. Nugee, 8 Sim. 130 212 
 
 Sandys v. Sandys, 1 P. W. 707 162 
 
 Sanger r. Sanger, 11 Eq. 470; 40 L. J. Ch. 373; 24 L. T. N. S. 
 
 649 ; 19 W. R. 792 250 
 
 Saunders v. Dehew, 2 Vern. 271 294, 297 
 
 V. Epije, 9 W. R. 69 ; 3 L. T. N. S. 
 
 Ex parte, 2 G. & J. 132 
 
 V. Nevil, 2 Vern. 428 . 
 
 V. Vautier, Cr. & Ph. 240 
 
 Savage v. Carroll, 1 B. & B. 265 
 Savery v. King, 5 H. L. C. 655 
 Sawyer v. Birchmore, 2 M. & Cr. 611 
 
 V. Goodwin, 16 L. T. N. S. 514 . 
 
 Sayre v. Hughes, 5 Eq. 376 
 
 Scales V. Baker, 28 Bea. 91 ; 8 W. R. 287 
 
 291 . . . . 8 
 
 . 209 
 
 . . 224 
 
 . 81 
 
 162 
 
 . 189 
 
 . . 231 
 
 . 325 
 
 64 
 
 2 L. T. N. S. 659 
 
 249, 252 
 
 . 154 
 
 Scari:?brick v. Skelmersdale, 17 Sim. 187 
 
 Scarborough f. Borman, 1 Bea. 34; 4 M.& Cr. 377 . . . . 266 
 
 Scarsdalev. Curzon, IJ. & H. 51 ; 29 L. J. Ch. 313; 6 Jur. N. S. 
 
 262, 436 ; 1 L. T. N. S. 471 51 
 
 Scattergood v. Harrison, Mos. 128 ... ... 198 
 
 Schroder v. Schroder, Kay, 591 323 
 
 Selater v. Cottam, 3 Jur. N. S. 630 . 197 
 
 Scott V. Becher, 4 Price, 346 272 
 
 D. Hastings, 4 K. & J. 633 291 
 
 V. Jones, 4 CI. & F. 382 39 
 
 V. Key, 35 Bea. 291 55, 175 
 
 Scroope v. Scroope, 1 Ch. Ca. 27 63 
 
 Sculthorp V. Burgess, 1 Ves. Jun. 92 61 
 
 0. Tipper, 13 Eq. 232 ; 41 L. J. Ch. 266 ; 26 L. T. N. 
 
 S. 119 ..... . . 89,114,115,139 
 
 Scurfield v. Howes, 3 B. C. C. 91 . . . . . 18, 330 
 
 Scale V. Seale, 1 P. W. 290 .47 
 
 Sealy v. Stawell, I. R. 2 Eq. 326 47, 305 
 
 Searle v. Law, 15 Sim. 95 29 
 
 Seagram v. Knight, 2 Ch. 628 ; 36 L. J. Ch. 918 ; 17 L. T. N. S. 
 
 47 ; 15 W. R. 1152 101, 313 
 
 Selby V. Bowie, 4 Giff. 300 ; 9 Jur. N. S. 425 ; 11 W. R. 606 ; 2 
 
 N. R. 2 ; 8 L. T. N. S. 372 90, 241 
 
 V. Cooling, 23 Bea. 418 123 
 
 Selsey v. Rhoades, 2 S. & S. 41 ; 1 Bli. N. R, 1 . . 186, 194 
 
TABLE OF CASES. 
 
 Ixxxv 
 
 PAGH 
 Sewell, Re, 11 Eq. 80 ; 40 L. J. Ch. 135 ; 23 L. T. N. S. 835 ; 19 
 
 W. R. 220 . ' 93 
 
 Shaftesbury v. Marlborough, 2 M. & R. 118 151 
 
 Shakeshaft, Ex parte, 3 B. C. C. 197 219, 220 
 
 Shapland v. Smith, 1 B. C. C. 74 . . . . . . 3 
 
 Sharp V. Sharp, 2 B. & Aid. 405 208, 209 
 
 V. St. Sauveur, 7 Ch. 351 ; 41 L. J. Oh. 576 . . . 244 
 
 Sharps v. Foy, 4 Ch. 35 . . 266 
 
 • V. Sharie, 12 Jur. 598 . . 22 
 
 Sharpies v. Adams, 32 Bea. 213; 11 W. R. 450 ; 1 N. R. 460 . 297 
 Shattock V. Shattock, 2 Eq. 182 ; 35 L. J. Ch. 509 ; 14 L. T. N. 
 
 S. 452 ; 14 W. R. 600 ; 12 Jur. N. S. 405 262 
 
 Shaw V. Borrer, 1 Keen, 559 126, 128 
 
 V. Bunny, 2 D. G. J. & Sm. 468 ; 34 L. J. Ch. 257 . 131, 186 
 
 170; 
 
 3 Jur. N. S, 
 
 Ex parte, 8 Sim. 159 
 
 V. Ford, 7 Ch. D. 674 
 
 V. Foster, L. R. 5 H. L. 321 ; 42 L. J. Ch. 49 ; 20 W. R. 907 
 
 V. Lawless, 5 CI. & F. 129 
 
 Shaw, Re, 12 Eq. 124 ; 25 L. T. N. S. 22 ; 19 W. R. 1025 
 
 0. Rhodes, 1 M. & Cr. 135 
 
 ■ V. Weigh, 1 Eq. Ca. Ah. 185 
 
 Sheaf V. Cave, 24 Bea. 259 
 
 Sheffield Railway Co., Re, 1 Sm. & G. App. iv 
 
 Sheldon v. Cox, 2 Ed. 228 ... 
 
 v. Dormer, 2 Vern. 310 . 
 
 V. Weldman, 1 Ch. Ca. 20 . 
 
 Shelford o. Acland, 23 Bea. 13 ; 5 W. R. 
 
 203 
 
 Shelley's Case, 1 Co. Rep. 93 
 
 Shelley v. Shelley, 6 Eq. 540 ; 37 L. J. Ch. 357 
 
 Shelmerdine, Re, 33 L. J. Ch. 474 
 
 Shelton v. Watson, 16 Sim. 543 
 
 Shepherd v. Nottidge, 2 J. & H. 766 ; 1 N. 
 
 399 
 
 Sheridan v. Joyce, 7 I. Eq. R. 115 . 
 Sheriff v. Axe, 4 Russ. 33 . . . 
 Sherman v. Collins, 3 Atk. 318 . 
 Sherrard v. Harborough, Amb. 165 
 Sherratt v. Bentley, 1 R. & M. 655 . 
 Sherwood, Re, 3 Bea. 338 .. . 
 
 Shewell v. Dwarris, Johns. 172 
 
 Shipbrook v. Hinchinbrook, 11 Ves. 252 ; 16 Ves. 477 
 
 22 
 
 84 
 
 72, 
 
 296 
 
 . 55 
 
 91, 102, 
 
 108, 109 
 
 155 
 
 5 
 
 270 
 
 144 
 
 298 
 
 165 
 
 309 
 
 R. 15 ; 7 L. T. N. & 
 
 53 
 
 233 
 
 198 
 
 160, 166 
 
 58 
 
 11 
 
 201 
 
 256 
 
 18, 19, 100, 239 
 
 259 
 43 
 
 51 
 
 212 
 
 48 
 
Ixxxvi TABLE OF CASES. 
 
 PAGE 
 
 Shirt V. Westby, 16 Ves. 393 116 
 
 Shore v. Shore, 4 Dr. 510 274 
 
 Shovelton v. Shovelton, 32 Bea. 143 ; 1 N. B. 226 . . 53, 57 
 Shrewsbury Hospital, Ex parte, 9 Ha, App. 45 .... 16 
 V. N. Staffordshire Railway Co., 1 Eq. 593 ; 35 L. J. 
 
 Ch. 156 ; 13 L. T. N. S. 648 ; 12 Jur. N. S. 405 ; 14 W. E. 
 
 220 73 
 
 Sidmouth v. Sidmoiith, 2 Bea. 447 62, 65, 67 
 
 Sidney v. Eanger, 12 Sim. 118 191 
 
 Siggers v. Evans, 5 E. & B. 367 38, 41 
 
 SilUboume v. Ne-svport, 1 K. & J. 602 ; 3 W. R. 653 . . .175 
 Silvester v. Jarman, 10 Price, 78 ... . . . 22 
 
 V. Wilson, 2 T. R. 444 3 
 
 Simes v. Eyre, 6 Ha. 137 88 
 
 Simons v. Horwood, 1 Keen, 7 252 
 
 Simmons v. Simmons, 6 Ha. 352 243 
 
 Simpson v. Bathurst, 5 Ch. 193]; 23 L. T. N. S. 29 ; 18 W. R. 772 . 119 
 
 V. Brown, 13 W. R. 312 181 
 
 ■ ■ V. Fiew, 5 I. Ch. R. 517 159 
 
 V. Lester, 4 Jur. N. S. 1267 ; 33 L. T. 6 . . . . 92 
 
 Simson, Re, IJ. & H. 89 109, 143 
 
 Sisson V. Shaw, 9 Ves. 288 173 
 
 Sitwell V. Bernard, 6 Ves. 520 . .... 97, 147 
 
 Skett V. Whitmore, 2 Free. 280 68 
 
 Skidmore v. Bradford, 8 Eq. 134 ; 17 W. E. 1056 .... 62 
 
 Skingley, Re, 15 Jur. 958 107 
 
 Skinner, Ex parte, 2 Mer. 457 185 
 
 V. Sweet, 3 Mad. 244 336 
 
 Skirving v. WnHams, 24 Bea. 275 ; 30 L. T. N. S. 49 ; 3 Jur. N. S. 
 
 927 92,94 
 
 Slaney v. Watney, 2 Eq. 418 ; 35 L. J. Ch. 783 . . . 200 
 
 Slanning v. Style, 3 P. W. 334 249 
 
 Sleeman v. "Wilson, 13 Eq. 36 ; 25 L. T. N. S. 408 ; 20 W. E. 109 198, 334 
 Sleight V. Lawson, 3 K. & J. 292 ; 5 W. E. 589 . . . . 328 
 
 Slingsby v. Lawson, 10 Mod. 398 159 
 
 Sloane v. Cadogan, Sugd. V. & P. App. 26, 9th ed. . . . 28, 34 
 Small u Marwood, 9 B. & C. 308 11,13 
 
 V. Wing, 5 B. P. C. 66 . 164, 166 
 
 Smallman, Ee, I. E. 8 Eq. 249 259 
 
 Smedly v. Varley, 23 Bea. 358 185, 193 
 
 Smirtbwaite, Ee, 11 Eq. 251 ; 40 L. J. Ch. 176 ; 23 L. T. N. S. 
 
 726 ; 19 W. E. 381 204 
 
 Smith V. Adams, 5 D. M. & G. 712 270 
 
 V. Baker, 1 Atk. 385 . . 67 
 
TABLE OF CASES. Ixxxvii 
 
 PAGE 
 
 Smith V. Bolden, 33 Bea. 262 .. . ... 232 
 
 V. Camelford, 2 Ves. Jmi. 698 . . .157 
 
 V. Chichester, 1 C. & L. 486 . . . . . 76 
 
 ■ ■ r. Evans, Amh. 633 . . 164 
 
 Ex parte, 1 Deac. 385 . . 15, 16 
 
 1 D. & C. 267 195 
 
 i>. Frederick, 1 Eus.^i. 174 ... 168 
 
 V. Garland, 2 Mer. 122 . . . 36 
 
 • V. Guyon, 1 B. 0. C. 186 127 
 
 ■ V. Ililfe, 20 Eq^. 666 ; 44 L. J. Ch. 755 ; 33 L. T. K. S. 2 JO ; 
 
 23 W. R. 851. . . . . 46 
 
 r. Keating, 6 C. B. 136 . ... 41 
 
 V. Lyne, 2 Y. & C. C. G. 345 . . 35 
 
 V. Matthews, 3 D. F. & J. 139 ; 30 L. J. Cli.- 445 ; 4 L. T. 
 
 N. S. 236 ; 7 Jur. N. S. 378 ; 9 W. R. 644 . . 25 
 
 r. Partridge, Amb. 266 ... . .160 
 
 Re, 4 OLD. 70; 35 L. T. N. S. 890 . . 21 
 
 Re, 20 W. R. 695 109, 212 
 
 V. Smith, 1 Dr. & Sm. 384 121 
 
 V. , lie. B.N. S. 121; 5 L. T.N. S. 447; low. R. 18 7 
 
 V. , 10 Ha. App. XXV. Ixxi. ... . 273 
 
 V. Spencer, 2 Jur. N. S. 778 . . . 270 
 
 • V. Warde, 15 Sim. 56 34, 64, 66 
 
 ■ V. "Wilkinson, cited 3 Ves. 705 . . ... 68 
 
 Sneesby v. Thome, 7 D. M. & G. 399 ; 3 W. R. 438, 605 ; 25 L. 
 
 T. N. S. 125, 250 113, 114 
 
 Snowden v. Dales, 6 Sim. 524 84, 177 
 
 Soar V. Foster, 4 K. & J. 152 ; 6 W. R. 265 ; 4 Jur. N. S. 406 . 64 
 Sobey v. Sobey, 15_Eq. 200 ; 42 L. J. Ch. 271 ; 27 L. T. N. S. 808 ; 
 
 21 W. R. 309 ". . . . 280 
 
 Solley V. Wood, 29 Bea. 482 ; 30 L. J. Ch. 813 ; 7 Jur. N. S. 12i5 151 
 Soulby, Re, 21 W. R. 256 . . . . . 204 
 
 South Eastern Ry. Co., Ex parte, 9 Jur. 650 . . . 132 
 
 Southampton v. Hertford, 2 V. & B. 54 . . . .152, 154 
 
 Sowarsby v. Lacy, 4 Mad. 142 . . 125 
 
 Sowden v. Sowden, 1 B. C. C. 581 305 
 
 Sowerby, Re, 2 K. & J. 630 39 
 
 Spalding i). Shalmer, 1 Vern. 303 126 
 
 Speer, Re, 3 Ch. D. 262 ; 24 W. R. 880 105 
 
 Spicer v. Dawson, 5 W. R. 431 ; 29 L. T. N. S. 136 . . 247, 253 
 Spickernell v. Hotham, Kay, 669 ; 2 W. R. 638 . 88, 309, 313, 315 
 Spirett V. Willows, 3 D. J. & Sm. 293 ; 34 L. J. Ch. 365 ; 14 L. T. 
 
 N. S. 720 ; 12 Jur. N. S. 538 ; 14 W. R. 941 . 255 
 
 Spencer v. Spencer, 8 Sim. 87 . . 158 
 
Ixxxviii TABLE OF CASES. 
 
 PAGE 
 
 Spencer r. Tophani, 22 Bea. 577 ; 28 L. T. N. S. 53 ; 2 Jur. N. S. 
 
 865 189 
 
 Spottiswoode r. Stockdale, G. Coop. 102 37 
 
 Spring V. Pride, 4 D. J. & Sm. 395 183, 184 
 
 Springett v. Dasliwoo.i, 2 Gift'. 521 ; 7 Jur. N. S. 93 ; 3 L. T. N. 
 
 S. 542 228 
 
 ■ V. Jenings, 10 Eq. 495 ; 6 Ch. 333 ; 40 L. J. Ch. 348 ; 
 
 24 L. T. N. S. 643 ; 19 W. E. 575 . . . . 80, 82 
 
 Spurvvay v. Glyn, 9 Ves. 483 .. . .... 116 
 
 Stace V. Gage, 8 Ch. D. 451 119 
 
 Stacey v. Elpli, 1 M. & K. 195 ; 2 L. J. Ch. 50 10, 11, 14, 183 
 
 Stackpoole v. Staclipoole, 4 Dow. 209 285 
 
 Stamford v. Hobart, 3 B. P. C. 31 43 
 
 Bank v. Ball, 4 D. F. & J. 310 ; 10 W. R. 196 ; 31 L. J. 
 
 Ch. 143 ; 8 Jur. N. S. 420 ; 4 L. T. N. S. 594 . . 261, 263 
 
 Stanes v. Parker, 9 Bea. 385 201 
 
 Stanford v. Roberts, 6 Ch. 310 ; 19 W. R. 552 . . . . 226 
 
 Stanhope v. Thacker, Pr. Ch. 436 164 
 
 Staniforth v. Staniforth, 2 Vern. 460 .... 162, 167 
 
 Stanley v. Coulthurst, 10 Eq. 259 ; 29 L. J. Ch. 650 ; 23 L. T. N. 
 
 S. 761 ; 18 W. R. 969 49 
 
 ■ V. Stanley, 7 Ch. D. 589 ; 47 L. J. Ch. 256 ; 37 L. T. N. 
 
 S. 777 ; 26 W. E. 310 266 
 
 V. ■ , 1 Atk. 548 . . ... 162, 163 
 
 Stanton v. Hall, 2 R. & My. 175 253, 256 
 
 Stapilton v. Stapilton, 2 W. & T. L. C. 836 33 
 
 Stapleton v. Stapleton, 14 Sim. 186 28 
 
 Starkey v. Brooks, 1 P. W. 590 59 
 
 Stead V. Mellor, 5 Ch. D. 225 ; 36 L. T. N. S. 498 ; 25 W. R. 508 52, 
 
 54 
 
 V. Nelson, 2 Bea. 245 263 
 
 Steedman v. Poole, 6 Ha. 193 ; 11 Jur. 449 . . . . 255, 267 
 Steele v. Cobham, 1 Ch. 325 ; 14 L. T. N. S. 242 ; 14 W. R. 493 . 272 
 
 V. Murphy, 3 Moore, P. C. 445 41 
 
 V. Waller, 28 Bea. 466 30 
 
 Stepney v. Biddulph, 13 W. R. 576 192 
 
 Steven.s v. Robertson, W. N. 1868, 123 138 
 
 Stevens' Will, 6 Eq. 597 21 
 
 Stevenson v. Liverpool, Mayor of, L. R. 10 Q. B. 81 ; 44 L. J. Q. 
 
 B. 34; 31 L. T. N. S. 673; 23 W. R. 246 .... 2 
 
 Steward v. Blakeway, 4 Ch. 603 71, 252 
 
 Stewart, Ex parte, 11 Jur. N. S. 25 290 
 
 V. Hoare, 2 B. C. C. 663 . . . . . . . 212 
 
 Re, 8 W. R. 297 . . . . ... 210 
 
TABLE OF CASES. Ixxxix 
 
 PAGE 
 
 Stewart v. Sanderson, 10 Eq. 26; 39 L. J. Ch. 337 ; 22 L. T. N. S. 
 
 10;18W. R. 278 ... . . .132,139 
 
 Stickland v. Aldridge, 9 Vcs. 516 .. . . . 80, 81 
 
 Stickney v. Sewell, 1 M. & Cr. 8 . . . . 138, 139, 140, 141 
 
 Stilenian v. Ashdown, 2 Atk. 477 63 
 
 Stock v. McAvoy, 15 Eg.. 55 ; 42 L. J. CL 230 ; 27 L. T. N. S. 
 
 441 ; 21 W. R. 521 . 62, 66 
 
 Stocken v. Dawson, 9 Bea. 239 ... . . . 287 
 
 v. Stocken, 4 Sim. 152 ; 4 M. & Cr. 93 . . . . 173 
 
 Stocks^!. Dobson, 4D. M. &G. 11 288 
 
 Stokes, Re, 13 Eq. 333 ; 41 L. J. Ch. 290 ; 26 L. T. N. S. 181 ; 20 
 
 W. R. 396 . . . 207, 213 
 
 Stone V. Evans, 2 Atk. 86 160 
 
 Ex parte, 8 Ch. 914 . . 220 
 
 V. Stone, 5 Ch. 74 ; 39 L. J. Ch. 196 ; 22 L. T. N. S. 182 ; 3 
 
 Jur. N. S. 708 241, 309 
 
 V. Theed, 2 B. C. C. 243 ; 5 Ha. 451 n. . . 75, 77, 148, 150 
 
 Stone V. Thomas, 5 Ch. 219 ; 39 L. J. Ch. 168; 22 L. T. N. S. 359; 
 
 18 W. R. 385 188 
 
 Stones V. Rowton, 17 Bea. 308 ... . ... 208 
 
 Stonor V. Curwen, 5 Sim. 264 . . . 48 
 
 Story V. Gape, 2 Jvir. N. S. 706 . . . . 313, 314 
 
 V. "Windsor, 2 Atk. 630 . .... 299 
 
 Stratford v. Twyman, Jac. 421 . . . . . . 188 
 
 Stratton v. Murphy, I. R. 1 Eq. 345 . . . . 74 
 
 Streatfield v. Streatfield, Talb. 176 . . . . . . 44 
 
 Stretch v. Watkins, 1 Mad. 253 .. . ... 173 
 
 Stretton v. Ashmall, 3 Dr. 9 ; 3 W. R. 4 ; 24 L. J. Ch. 277 . . 141 
 Stroud V. Gwyer, 28 Bea. 130; 6 Jnr. N. S. 719; 2 L. T. N. S. 
 
 400 96, 287, 326 
 
 StroughiU. v. Anstey, 1 D. M. & G. 635 . . 122, 123, 126, 127, 129 
 Stuart V. CockereU, 8 Eq. 607 ; 39 L. J. Ch. 127 ; 18 "W. R. 1057 289 
 
 • V. Kirkwall, 3 Mad. 387 261 
 
 V. Stuart, 3 Bea. 430 . . 135 
 
 Stubbs V. Roth, 2 B. & B. 548 77 
 
 -!). Sargon, 2 Keen, 255 ; 3 M. & Cr. 507 ... 56, 59 
 
 Sturgis V. Corp, 13 Ves. 190 258 
 
 V. Morse, 3 D. & J. 1 297, 307, 323 
 
 Sturt, Ex parte, 13 Eq. 309 ; 41 L. J. Ch. 12 ; 20 W. R. 200 . . 220 
 Styles V. Guy, 1 Macn. & G. 422 ; 19 L. J. Ch. 185 . . 13, 87, 240 
 Sugden v. Crossland, 3 Sm. & G. 192 ; 4 W. R. 343 ; 26 L. T. N. 
 
 S. 307 ; 20 Jur. N. S. 318 205 
 
 Sutherland v. Cooke, 1 Coll. 503 . . ... 92, 97 
 
 Sutton V. Jones, 15 Ves. 584 ... . ... 202 
 
Xe TABLE OF CASES. 
 
 PAGE 
 
 Sutton V. Wilders, 12 Eq. 373 ; 41 L. J. Ch. 30 ; 25 L. T. N. S. 292 ; 
 
 19 W. R 1021 142, 235 
 
 Swale V. Swale, 22 Bea. 584 15, 273 
 
 Swallow u Binns, 1 K. & J. 417 65,160,161 
 
 Sweetappleu Bindon, 2 Vern. 536 47 
 
 Swift u Wenman, 10 Ety. 15 ; 39 L. J. Ch. 336 ; 22 L. T. N. S. 194 ; 
 
 18 W. R. 480 235 
 
 Swinfen v. Swinfen, 29 Bea. 2] 1 98 
 
 Sykes v. Hastings, 11 Ves. 363 . . 202 
 
 Re, 2 Y. & H. 415 30, 262 
 
 V. Sheard, 33 Bea. 114 ; 2 D. J. & Sm. 6 ; 33 L. J. Ch. 181 ; 
 
 11 W. R. 1014 ; 2 N. R. 540 118 
 
 V. Sykes, 13 Eli. 56; 41 L. J. Cli. 25 ; 25 L. T. N. S. 560 ; 20 
 
 W. R. 90 152 
 
 Symes v. Hughes, 9 Eq. 475 ; 39 L. J. Ch. 314; 22 L. T. N. S. 462 85 
 Symonds v. Wilke,?, 11 Jur. N. S. 659 ; 12 W. R. 541 ; 10 L. T. N. 
 
 S. 153 45 
 
 Synge v. Hales, 2 B. & B. 499 . . 50 
 
 Synnot v. Simpson, 5 H. L. C. 139 41 
 
 Taddt, Re, 16 Eq. 532 ; 43 L. J. Ch. 191 ; 29 L. T. N. S. 243 ; 21 
 
 W. R. 863 134 
 
 Taggart v. Taggart, 1 Sch. & L. 84 46 
 
 Tait V. Jenkins, 1 Y. & C. C. C. 492 273 
 
 . V. Lathbury, 1 Eq. 174; 35 Bea. 112 ; 11 Jur. N. S. 991 ; 14 
 
 "W. R. 216 126, 146 
 
 Taite ii. Smnstead, 26 Bea. 525 ; 6 W. R. 373 ; 33 L. T. 312 . . 116 
 
 Talbot V. Cody, I. R. 10 Eq. 146 64 
 
 V. Marshfield, 2 Dr. & Sm. 285 ; 4 Eq. 661 ; 3 Ch. 622 ; 37 
 
 L. J. Ch. 51 ; 19 L. T. N. S. 223 . . 138, 175, 179, 276 
 
 V. Scott, 4 K. & J. 139 . . . . . .274 
 
 Tanner v. Elworthy, 4 Bea. 487 .... . . 75 
 
 Tarsey, Re, 1 Eq. 561 ; 35 L. J. Ch. 452; 14 L. T. N. S. 15 ; 12 
 
 Jur. N. S. 370 ; 14 W. R. 474 254 
 
 Tasker v. Small, 6 Sim. 625 ; 3 M. & Cr. 70 . . . . 72, 164 
 
 Taster v. Marriott, Amb. 668 74, 75 
 
 Tate V. Leithead, Kay, 658 ; 2 "W. R. 630 ; 23 L. T. 252 . . . 28 
 
 V. Williamson, 2 Ch. 55 ; 15 L. T. N. S. 549 . . .184 
 
 Tatham v. Vernon, 29 Bea. 604 ; 9 W. R. 822 ; 4 L. T. N. S. 531 30 
 Taylor v. Baker, 5 Price, 306 299 
 
 V. Clark, 1 Ha. 161 .96 
 
 V. George, 2 V. «St B. 378 . . . . . . 53 
 
 V. Glanville, 3 Mad. 178 ... . . . 230 
 
 V. Haygarth, 14 Sim. 16 ... ... 243 
 
TABLE OF CASES. XCl 
 
 PAGE 
 Taylor v. Meads, 4 D. G. & Sm. 597 ; 34 L. J. Ch. 203 ; 11 Jur. N. 
 
 S. 166 252,257,258,259 
 
 V. Plumer, 3 M. & S. 562 300, 301 
 
 • V. Salmon, 4 M. & Cr. 134 186 
 
 V. Sparrow, 4 Giff. 706 226 
 
 V. Stibbert, 2 Ves. Jun. 437 294 
 
 f. Tabmm, 6 Sim. 281 112,114,115,330 
 
 V. Taylor, 20 Eq^. 155 ; 44 L. J. Cli. 718 ; 23 W. R. 719 
 
 167, 180 
 
 V. Taylor, 1 Atk. 386 62 
 
 Teague, Be, 10 Eq. 564; 22 L. T. N. S. 742 ; 18 W. R. 752 . . 267 
 Teasdale v. Braitliwaite, 5 Ch. D. 630 ; 46 L. J. Ch. 725 ; 36 L. T. 
 
 N. S. 601 ; 25 W. E. 546 . . . . . 45, 48 
 
 Tebbitt v. Tebbitt, 1 D. G. & Sm. 506 204 
 
 Tebbs V. Carpenter, 1 Mad. 290 .... 114,115,283,285 
 Tee V. Ferris, 2 K. & J. 367 ; 4 W. R. 352 ; 25 L. J. Ch. 437 . 80, 81 
 
 Teed v. Beere, 5 Jur. N. S. 381 309 
 
 Tempest, He, 1 Ch. 485 ; 14 L. T. N. S. 685 ; 12 Jur. N. S. 539 ; 
 
 14W. R. 850 211 
 
 Tench v. Cbeese, 6 D. M. & G. 461 154 
 
 Tennant v. Trencbard, 4 Ch. 547 ; 38 L. J. Ch. 169 ; 20 L. T. N. 
 
 S. 856 185 
 
 Terry r. Terry, Free. Ch. 273 136 
 
 Tewart v. Lawson, 18 Eci. 495 ; 43 L. J. Ch. 673 ; 22 W. R. 
 
 822 154 
 
 Teynham v. Webb, 2 Ves. Sen. 210 159 
 
 Therry u Henderson, 15 L. T. N. S. 452 181 
 
 Tbirtle v. Vaughan, 24 L. T. 5 ; 2 W. R. 632 22 
 
 Thomas v. Price, 46 L. J. Ch, 761 266 
 
 ■ V. Thomas, 2 K & J. 79 311 
 
 V. Townsend, 16 Jur. 736 112 
 
 V. Walker, 18 Bea. 521 205 
 
 Thomason v. Mackworth, 0. Bridgm. 507 4 
 
 Thompson v. Andrews, 1 M. & K. 116 90 
 
 V. Bennett, 6 Ch. D. 739 ; 37 L. T. N. S., 119 ; 25 W. 
 
 R. 862 252 
 
 V. CHve, 11 Bea. 475 228 
 
 u Finch, 22 Bea. 316 ; 25 L. J. Ch. 681 ; 27 L. T. N. S. 
 
 330 239, 240, 282, 334 
 
 V. Fisher, 10 Eq. 207 48 
 
 V. Grant, 4 Mad. 438 21 
 
 t. Griffin, Cr. & Ph. 317 173 
 
 V. SimpBon, 1 Dr. & War. 459, 491 . . . . 47, 320 
 
 Thomson v. Eastwood, L. R. 2 App. Ca. 215 230, 232, 236, 308, 323 
 
XCU TABLE OF CASES. 
 
 PAGE 
 
 Thomson v. Shakespear, 1 D. F. & J. 399 ; 29 L. J. Ch. 276 ; 2 L. 
 
 T. N. S. 479 ; (3 Jur. N. S. 281 ; 8 W. E. 265 . . . . 153 
 
 Thorby v. Yeats, 1 Y. & C. C. C. 438 223 
 
 Thorndike v. Himt, 3 D. & J. 564 ; 7 W. R. 246 ; 28 L. J. Ch. 417 ; 
 
 32 L. T. 346 304 
 
 Thornton v. Ellis, 15 Bea. 193 ... . . . 91, 94 
 
 V. Hawley, 10 Ves. 137 90 
 
 V. Howe, 31 Bea. 14 ; 10 W. E. 642 ; 8 Jur. N. S. 663 ; 6 
 
 L. T. N. S. 525 83 
 
 Thorold, Ee, 14 Eq. 31 ; 41 L. J. Ch. 780 ; 20 W. E. 898 . 134 
 
 Thorpev. Holdsworth, 7Eq. 139; 38L. J. Ch. 194 . . . . 295 
 
 V. Owen, 5 Bea. 224 ; 2 W. E. 208 ; 23 L. J. Ch. 286 ; 18 
 
 Jur. 641 ; 2 E(i. Eep. 329 33 
 
 Thurlow V. Mackeson, L. E. 4 Q. B. 97; 38 L. J. Q. B. 57; 19 L. 
 
 T. N. S. 448; 17 W. E. 280 120 
 
 Thursby v. Thursby, 19 E(i. 395 ; 44 L. J. Ch. 289 ; 32 L. T. N. S. 
 
 187; 23 W. E. 500 91,92,93,94 
 
 Thynn v. Thynn, 1 Vern. 295 79 
 
 Thynne v. Glengall, 2 H. L. C. 131 . . . . . . 169 
 
 Tibbits V. Tibbits, 19 Ves. 657 ... . . 53 
 
 Tibbs, Ee, 17 W. E. 304 . . . . . . . 109 
 
 Tichener, Ee, 35 Bea. 317 .. . ... 289, 291 
 
 Tickner v. Old, 18 Eq. 422; 31 L. T. N. S. 29; 22 W. E. 871 
 
 91, 92, 93 
 
 V. Smith, 3 Sin. & G. 42 ; 3 "W. E. 224 ; 25 L. T. 44 . 328 
 
 Tidd V. Lister, 5 Mad. 429 221, 273 
 
 Tierney v. Wood, 19 Bea. 330 ; 2 W. E. 577; 23 L. T. 266 . 25, 28 
 
 Tildesley v. Lodge, 3 Sm. & G. 543 299 
 
 Ting V. Leslie, 2 H. & M. 68 ; 4 N. E. 17 ; 10 L. T. N. S. 
 
 332 ' 158 
 
 Titley v. Wolstenholme, 7 Bea. 425 23, 24 
 
 Todd V. Moorhouse, 19 Eq. 69 ; 32 L. T. N. S. 8 ; 23 W. E. 155 . 140 
 
 V. Wilson, 9 Bea. 486 ... . ... 201 
 
 Toft V. Stephenson, 7 Ha. 1; ID. M. & G. 28 . . . 310, 316 
 
 Toller V. Attwood, 15 Q. B. 929; 20 L. J. Q. B. 40 . . . 7 
 
 V. Carteret, 2 Vern. 495 244 
 
 Tolson V. Sheard, 5 Ch. D. 19; 16 L. J. Ch. 815; 36 L. T. N. S. 
 
 756; 25 W. E. 667 117 
 
 Tomson v. Judge, 3 Drew. 306; 3 W. E. 561; 19 Jur. 583; 25 L. 
 
 J. 233; 5 W. E. 396 190 
 
 Torres v. Franco, 1 Euss. & My. 649 161 
 
 Tourville v. Naish, 3 P. W. 306 299 
 
 Townend v. Toker, 1 Ch. 446 ; 35 L. J. Ch. 608 ; 14 L. T. N. S. 
 
 531; 12 Jur. N. S. 477; 14 W. E. 806 . . . . 35, 36 
 
TABLE OF CASES. 
 
 XCIH 
 
 46, 
 
 Townend v. Townenil, 1 GifF. 201; 7 W. R. 529 ; 5 Jur. N. S. 506 ; 
 
 33 L. T. 143 143, 287 
 
 Townley v. Shertom, Bridg. 35 238 
 
 Townsend, Ex parte, 1 Moll. 139 17 
 
 V. "Westacott, 2 Bea. 340 . 
 
 Townshend v. Townshend, 1 B. C. C. 551 
 Townson u Tickell, 3 B. & A. 31 
 TrafFord v. Ashton, 1 P. W. 415 . 
 Travers v. Travers, 14 Eq. 275 . 
 Travis v. Illingvvorth, 2 Dr. & Sm. 344 . 
 
 V. Milne, 9 Ha. 141 ... 
 
 Tregonwell v. Sydenham, 3 Dow. 194 . 
 Trench v. Harrison, 17 Sm. Ill 
 
 V. St. George, 1 Dr. & Walsli, 417 . 
 
 Trent v. Trent, 1 Dow. App. Ca. 102 
 
 Trevelyan v. Charter, 9 Bea. 140 . 
 
 Treves v. Townshend, 1 B. C. C. 384 
 
 Trevor v. Trevor, 13 Sim. 108 ; 1 H. L. C. 239 . 
 
 ^. 1 Eq. Ca. Ah. 387; 2 B. P. C. 12-2 
 
 Trotter v. Watson, L. R. 4 C. P. 434 . 
 
 Trontbeck v. Boughey, 2 Eq. 534 ; 35 L. J. Ch. 840 ; 12 Jur. N. S. 
 
 543 252, 259 
 
 TroweU u Shenton, 8 Ch. D. 318 ; 47 L. J. Ch. 738 ; 38 L. T. N. S, 
 
 369 . . 
 
 Trower v. Knightley, 6 Mad. 134 
 
 Truell V. Tysson, 21 Bea. 437 
 
 Trumper v. Trumper, 14 Eq. 315; 8 Ch. 870; 42 L. J. Ch. 641 
 
 29 L. T. N. S. 86; 21 W. R. 692 
 
 Trutoh V. Lamprell, 20 Bea. 116 . 
 
 Tryon, Re, 7 Bea. 496 .. . ... 
 
 Tubbs V. Broadwood, 2 R. & My. 487 .... 
 
 Tucker v. Burrow, 2 H. & M. 515 
 
 Tuite V. Bermingham, L. R. 7 H. L. 634; 24 W. R. 540 
 TuUett V. Armstrong, 1 Bea. 1 ; 4 M. & Cr. 405 ; 4 Bea. 319 
 
 247, 248, 250, 251, 260, 263, 266 
 
 Tunstall, Re, 4 D. G. & Sm. 421 212, 213 
 
 Turner v. Buck, 18 Eq. 301; 43 L. J. Ch. 583; 22 W. R. 748 114, 116 
 
 • V. Comey, 5 Bea. 515 . . . . 18 
 
 • V. Harvey, Jac. 178 .122 
 
 V. Martin, 7 D. M. & G. 429 39 
 
 V. Maule, 3 D. G. & Sm. 497; 15 Jur. 761 . . 210, 236 
 
 V. Sargent, 17 Bea. 515 ; 2 W. R. 50; 22 L. T. 129 . 49, 50 
 
 V. Turner, 30 Bea. 414 113 
 
 V. 4 Sim. 430 . . . . 172 
 
 . 313 
 
 10,11,12 
 
 164, 166 
 
 . . 243 
 
 208, 209 
 
 287 
 
 60 
 
 146 
 
 149 
 
 7 
 
 191 
 
 286 
 
 48,49 
 
 44 
 
 222 
 
 45 
 116 
 116 
 
 78 
 17 
 11 
 
 305 
 65 
 
 157 
 
XCIV TABLE OF CASES. 
 
 PAGE 
 
 Turner v. Turner, IJ. & "W. 39 ' _ 284 
 
 Tiirpin, Ex parte, 1 D. & C. 120 . . . . ; • ■ . .219 
 Turvin v. Newcome, 3 K. & J. 16 ; 5 W. E. 35; 3 Jur. N. S. 
 
 203 • 154 
 
 Tweedale v. T-sveedale, 7 Ch. D. 633 105 
 
 Twopeny v. Peyton, 10 Sim. 487 177 
 
 Tylee v. Tylee, 17 Bea. 583 274 
 
 Tyler v. Lake, 2 R. & My. 183 253, 256 
 
 Tyrrell v. Hope, 2 Atk. 561 256 
 
 Tyson, Ex parte, 1 Jur. 281, 472 243 
 
 Umbeks v. Jaggard, 9 Eq. 200 ; 18 W. R. 283 157 
 
 Underwood v. Hatton, 5 Bea. 36 .■• 40 
 
 Be, 3 K. & J. 745 210 
 
 V. Stevens, 1 Mer. 712 . . . . 18, 19, 334 
 
 V. Trower, W. N., 1867, 83 229 
 
 Uniacke, Re, IJ. & L. 1 11, 13 
 
 Upjohn V. Upjohn, 7 Bea. 59 147 
 
 Urch V. Walker, 3 M. & Or. 702 ; 7 L. J. Ch. 292 . . . 13, 14 
 
 Uvedale v. Ettriek, 2 Ch. Ca. 130 .. . . . 216 
 
 Vachell v. Roberts, 32 Bea. 140 .92 
 
 Vance v. Vance, 1 Bea. 605 62 
 
 Vane r. Vane, 8 Ch. 383 ; 42 L. J. Ch. 299 ; 28 L. T. N. S. 320 ; 
 
 21 W. R. 252 295, 296, 322 
 
 Vallis, Re, Rolls, 22nd .July, 1807 22 
 
 Vandenherg v. Palmer, 4 K. & J. 204 . . . . . 33 
 
 Vann v. Barnett, 2 B. C. C. 157 280 
 
 Varlo V. Faden, 27 Bea. 255 ; 1 D. F. & J. 211 ; 29 L. J. Ch. 230 ; 
 
 8 W. R. 107 ; 6 Jur. N. S. 257 ; 1 L. T. N. S. 176 . 154, 155 
 Vaughan v. Buck, 1 Ph. 75 92, 94 
 
 V. Buralem, 3 B. C. C. 101 51 
 
 V. Vanderstegen,- 2 Drew. 165 ; 2 W. R. 293, 599, 642 . 257, 
 
 260, 263, 266 
 
 Vaughton v. Noble, 30 Bea. 34 335 
 
 Venables r. Morris, 7 T. R. 342 9 
 
 Verney v. Vemey, 2 Ed. 26 .163 
 
 V. ■ — - Amb. 88 ; 1 Ves. Sen. 429 . . _ . 78, 148, 149 
 
 Versturme v. Gardiner, 17 Bea. 338 . . . . ' . .138 
 Vickers v. Cowell, 1 Bea. 529 69 
 
 V. Scott, 3 M. & K. 500 97, 115 
 
 Vickery v. Evans, 33 Bea. 376 ; 33 L. J. Ch. 261 ; 10 Jur. N. S. 
 
 30 142, 143, 144 
 
TABLE OF CASES. XCV 
 
 PAGE 
 
 Vidler v. Parrott, 12 W. E. 976 ; 4 N. R. 392 ; 10 L. T. N. S. 686 136 
 
 Vigrai5s V. Binfield, 3 Mad. 62 136, 275 
 
 Vincent v. Newoombe, Youngo, 5!W 92, 93 
 
 Viner v. Vauglian, 2 Bea. 466 94 
 
 Viney v. Chaplin, 2 D. & J. 468 ; 27 L. J. Ch. 34 ; 28 L. J. Oh. 164 ; 
 
 4Jur. N. S. 619; 6 W. R. 302, 562;31 L. T. 142 . . . 18 
 Vyse V. Foster, 8 Ch. 309 ; L. R. 7 H. L. 318 ; 44 L. J. Ch. 37 
 
 106, 107, 285, 286, 287 
 
 Wacb v. Mallard, 21 L. J. Ch. 355 ; 16 Jur. 492 .. . 53, 57 
 
 Wackerbarth v. Powell, Buck. 495 . 17 
 
 Wadham v. Rigg, 1 Dr. & Sm. 216 . 282 
 
 Wagstaff V. Smith, 9 Ves. 520 255 
 
 Wain V. Egmont, 2 M. & K. 445 '. 40 
 
 Wainford v. Heyl, 20 Eii. 321 ; 44 L. J. Ch. 567 ; 33 L. T. N. S. 
 
 155 ; 23 W. R. 849 264, 265, 266 
 
 Waite V. Littlewood, 41 L. J. Ch. 636 132, 133 
 
 Walcott V. Bloomfield, 4 Dr. & War. 211 159 
 
 Waldo V. Waldo, 7 Sim. 261 ; 12 Sim. 107 107 
 
 Waldy V. Gray, 20 Eq. 238 ; 44 L. J. Ch. 394 ; 31 L. T. N. S. 531 ; 
 
 23 W. R. 676 295 
 
 u Walker, 5. Russ. 7 138 
 
 Walker, Re, 2 Ph. 630 198 
 
 . V. Shore, 19 Ves. 387 94, 115, 147 
 
 ■ V. Smallwood, Amb. 676 113, 129 
 
 V. Symonds, 3 Swans. 1 .136, 229, 237, 330, 333, 334, 336 
 
 V. Wetherell, 6 Ves. 473 176 
 
 V. Woodward, 1 Russ. 107 ... . . 287 
 
 Wall V. Bright, IJ. & W. 494 . . . . . 23, 72 
 
 Wallace v. Anderson, 16 Bea. 533 .... . . 178 
 
 Walley v. Walley, 1 Vern. 484 77, 78 
 
 Wallgrave v. Tebbs, 2 K. & J. 323 ; 4 W. R. 194 ; 23 L. J. Ch. 
 
 241 ; 26 L. T. N. S. 147 ; 20 Jur. N. S. 83 . . . 80, 81, 82 
 
 Wallis V. Birks, L. R. 5 0. P. 222 . . . . . . 222 
 
 Wallwyn v. Coutts, 3 Mer. 707 41 
 
 V. Lee, 9 Ves. 24 . . 295 
 
 Walpole V. Conway, Barn. 153 169 
 
 Walsh V. Gladstone, 14 Sim. 2 213 
 
 V. Walsh, 1 Drew. 64 179 
 
 Walsham v. Stainton, 1 D. J. & Sm. 678; 33 L. J. Ch. 68 . . 187 
 
 V. 1 H. & M. 322 335 
 
 Walter v. Hodge, 2 Swans. 104 32 
 
 Walters!.. Woodbridge, 7 Ch. D. 504; 47 L. J. Ch. 516; 26 W. 
 
 E. 469 202 
 
XCVl TABLE OF CASES. 
 
 PAGE 
 
 Want V. Stallibras, L. E. 8 Ex. 175 ; 42 L. J. Ch. 108 ; 21 W. E. 
 
 685 116 
 
 Warbiuton v. Fam, 16 Sim. 625 119 
 
 V. Sandys, 14 Sim. 622 214 
 
 Ward V. Audland, 8 Sim. 579 30 
 
 ■ <■. Butler, 2 Moll. 533 . . 13 
 
 V. Hipwell, 3 Giff. 547 ; 6 L. T. N. S. 238 . . . . 15 
 
 ■ Ee, 7 Ch. 729 ; 42 L. J. Ch. 4; 27 L. T. N. S. 668; 20 W. 
 
 E. 1024 180 
 
 V. Turner, 1 W. & T. L. C. 983 34 
 
 Warde v. Aeyre, 2 Bulst. 323 .. . ... 99 
 
 Ee, 2 J. & H. 191 133 
 
 Warden v. WardeU, 4 B. C. C. 286 . . . . 165 
 
 Ware u Polhill, 11 Ves. 257 . ... .. 116, 168 
 
 Ee, 20 W. E. 142 . . . 108 
 
 Waring v. Waring, 3 Ir. Ch. E. 331 87, 142 
 
 Warman v. Seaman, 2 Free. 308 60 
 
 Wame v. Eoutledge, 18 Eq. 497 ; 43 L. J. Ch. 604 ; 30 L. T. N. S. 
 
 857 ; 22 W. E. 750 257, 259 
 
 Warr v. Warr, Pr. Ch. 213 166, 167, 168 
 
 Warren v. WaiTen, 1 B. C. C. 305 169 
 
 Warriclt; v. Warrick, 3 Atk. 291 45, 46 
 
 Warriner v. Eodgers, 16 Eq. 340; 42 L. J. Ch. 581 ; 28 L. T. N. 
 
 S. 863; 21 AV. E. 766 27,28,30,34 
 
 Warteru Anderson, 11 Ha. 301; 1 W. E. 493; 21 L. T. N. S. 
 
 219 215, 236 
 
 r- V. Hutchinson, 1 S. & S. 276 . . . . 164 
 
 Warwick v. Eicliardson, 10 M. & W. 284 . . . . 207 
 
 Waterer v. Waterer, 15 Eq. 402 ; 21 W. E. 508 .... 71 
 Waterhouse v. Stansfield, 9 Ha. 234 ; 10 Ha. 254 . . . . 245 
 Waters v. Bailey, 2 Y. & C. C. C. 219 . ... 75 
 
 V. Groom, 11 CI. & F. 684 . .... 188 
 
 Watkins i>. Cheek, 2 S. & S. 199 . . . 126, 129, 298 
 
 Ex parte, 2 Mont. & A. 348 219 
 
 . V. Frederick, 11 H. L. C. 358 6, 8 
 
 V. Weston, 3 D. J. & Sm. 434 ; 32 Bea. 238; 32 L. J. Ch. 
 
 609 ; 11 W. E. 408 ; 8 L. T. N. S. 406 252 
 
 Watson, Ex parte, 2 V. & B. 414 . . . . . .219 
 
 D. Hayes, 5 M. & Cr. 125 . . . . . 58 
 
 V. Knight, 19 Bea. 369 37, 38 
 
 V. Pearson, 2 Exch. 593 ; 18 L. J. Ex. 46 . . . . 5 
 
 . V. Saul, 1 Giff. 188 ; 7 W. E. 197 ; 5 Jur. N. S. 404 ; 32 
 
 L. T. 218 308 
 
 . t>. Woodman, 20 Eq. 721 ; 45 L. J. Ch. 57 ; 24 W. E. 47 . 309 
 
TABLE OF CASES. XCVH 
 
 PAGE 
 
 Watt V. Wood, a Dr. & Sm. 56 . . 155 
 
 Watts V. Ball, 1 P. W. 108 -271 
 
 V. Girdlestone, 6 Bea. 188 137 
 
 Re, 9 Ha. 106 210 
 
 Way V. East, 2 Drew. 44 ; 2 W. R. 114 ; 23 L. J. Ch. 209; 22 
 
 L. T. 192 ; 2 Eq. Rep. 275 82 
 
 Re, 2 D. J. & Sm. 365 ; 34 L. J. Cli. 49 ; 11 L. T. N. S. 495 ; 
 
 10 Jur. N. S. 1166 ; 13 W. R. 149 . . . . 28, 34, 288 
 
 Weale v. Ollive, 17 Bea. 252 31 
 
 Wearing v. Wearing, 23 Bea. 99 93 
 
 Weatherall v. Thornburgh, 8 Oh. D. 261 ; 47 L. J. Ch. 658 ; 26 
 
 W. R. 593 156 
 
 Webb V. Byiig, 8 D. M. & G. 633 234 
 
 V. Ledsam, 1 K. & J. 385 139 
 
 V. Liigar, 2 Y. & C. Ex. Ca. 247 77 
 
 V. Rorke, 2 Sch. & L. 673 ; 1 B. & B. 164 . . . . 186 
 
 V. Shaftesbury, 7 Ves. 480 ... . 200, 204, 205, 280 
 
 V. Webb, 16 Sim. 55 ; 17 L. J. Ch. 13 .... 16 
 
 V. Webb, 2 Bea. 493 154 
 
 Webster u Webster, 31 Bea. 393 ; 1 W. R. 509 ; 21 L. T. N. S. 
 
 219 290 
 
 Wedderburn v. Wedderburn, 4 M. & Cr. 41 . . . 185, 237, 318 
 
 V. 22 Bea. 84 287 
 
 Wedgwood v. Adams, 6 Bea. 600 120 
 
 Weeding, Re, 4 Jur. N. S. 707 211, 216 
 
 WeUesley u Beaufort, 2 Russ. 29 174 
 
 V. Momington, 2 K. & J. 153 160 
 
 v. Withers, 4 E. & B. 750 ; 24 L. J. K. B. 134 . . 13 
 
 WeUs V. Malbon, 31 Bea. 48 ; 31 L. J. Ch. 344 ; 8 Jur. N. S. 
 
 249 205 
 
 V. Porter, 2 Bing. N. C. 730 139 
 
 West V. Errissey, 2 B. P. C. 225 ; 2 P. W. 349 . . . 45, 46 
 
 1,. Jones, 1 Sim. N. S. 205 119 
 
 Welstead v. Colvile, 28 Bea. 537 214 
 
 Westbrooke, Re, 2 Ph. 631 198, 202 
 
 West Hartlepool Iron Co., Re, 1 Ch. D. 664 ; 45 L. J. Ch. 342 ; 
 
 34 L. T. N. S. 164 ; 24 W. R. 508 140 
 
 Westmeath u Westmeath, 1 Dow & C. 519 84 
 
 Westmoreland v. Holland, W. N. 1871, 124 . . . . 14, 89 
 Wetherell v. Langston, 1 Exoh. 634 ; 17 L. J. Ex. 338 . . . 12 
 
 Wheatley v. Purr, 1 Keen, 551 28, 33 
 
 Wheeler v. Warner, 1 S. & S. 304 105 
 
 Whelpdale v. Cookson, 1 Ves. Sen. 9 182, 188 
 
 Whichcote v. Lawrence, 3 Ves. 752 195 
 
 9 
 
XCVlll 
 
 TABLE OF OASES. 
 
 PAGE 
 
 . 258 
 . 182 
 . 37 
 . 14 
 53, 55 
 . . 49 
 . 265 
 113, 121 
 . 120 
 
 Whistler v. Newman, 4 Ves. 129 . 
 WhitcoinlD V. Miacllin, 5 Mad. 91 
 Whitmore i). Turquand, 3 D. F. & J. 110 
 White V. Barton, 18 Bea. 192 . 
 
 V. Brigga, 15 Sim. 33 ; 2 Ph. 583 
 
 V. Carter, 2 Ed. 366 . ^ . 
 
 V. Cohen, 1 Dr. 312 . 
 
 V. Cuddon, 8 CI. & F. 766 
 
 . ?;. Foljambe, 11 Ves. 343 . 
 
 and Hindle, Ee, 7 Ch. D. 201 ; 47 L. J. Ch. 85 ; 26 W. R. 
 
 124 ; 37 L. T. N. S. 574 9 
 
 . V. Jackson, 15 Bea. 191 228 
 
 V. Lincoln, 8 Ves. 363 99 
 
 . V. McDermott, I. E. 7 C. L. 1 11, 12 
 
 ■ V. Parker, 1 Bing. N. C. 573 ; 4 L. J. C. P. 178 . . . 6 
 
 Ee, Johns. 656 ... 103 
 
 V. Simmons, 6 Ch. 555 ; 40 L. J. Ch. 689 ; 19 W. E. 939 . 188 
 
 ■ V. Thornborough, 2 Vern. 702 44 
 
 V. White, 4 Ves. 24 ; 9 Ves. 554 . . . . 148, 149, 150 
 
 Whitmore v. Turquand, 1 J. & H. 295 ; 9 W. E. 488 ; 30 L. J. Ch. 
 
 345 ; 7 Jur. N. S. 377 ; 4 L. T. N. S. 38 . . . . 276 
 
 Whitney v. Smith, 4 Ch. 513 ; 20 L. T. N. S. 468 ; 17 W. E. 579 
 
 143, 198 
 
 Wiokham v. Wickham, 18 Ves. 419 9 
 
 Wigg «. Wigg, 1 Atk. 381 299 
 
 Wightwick V. Lord, 6 H. L. C. 217 ; 5 W. E. 713 ; 3 Jur. N. S. 699 91 
 Wiglesworth v. Wiglesworth, 16 Bea. 269 ... . 275, 276 
 
 Wilbraham v. Scarisbriok, 1 H. L. C. 167 159 
 
 Wilcocks V. Hannington, 5 Ir. Ch. E. 38 31 
 
 Wild t). MUne, 26 Bea. 504 71,188 
 
 Wilday v. Sandys, 7 Eq. 455 ; 17 W. E. 603 92 
 
 Wilding V. Bolder, 21 Bea. 222 211 
 
 V. Eichards, 1 Coll. 655 38, 41 
 
 Wiles V. Cooper, 9 Bea. 294 ; 15 L. J. Ch. 129 16 
 
 V. Gresham, 2 Drew. 258 ; 5 D. M. & G. 770 ; 1 Eq. Rep. 
 
 348 ; 2 Eq. Eep. 560 ; 3 Eq. Eep. 116 ; 2 W. E. 35 ; 3 W. E. 
 
 87 ; 24 L. J. Ch. 264 87, 89, 279, 280, 327 
 
 Wilkes V. Steward, G. Coop. 6 136 
 
 Wilkins v. Fry, 1 Mer. 244 121 
 
 • u Hogg, 3 Giff. 116 ; 8 Jur. N. S. 25 . . . 238, 239 
 
 V. Stevens, 1 Y. & C. C. C. 431 305 
 
 Wilkinson u Bewick, 4 Jur. N. S. 1010 98 
 
 V. Duncan, 23 Bea. 469 ; 5 W. E. 398 ; 26 L. J. Ch. 
 
 495 ; 3 Jur. N. S. 530 95, 115 
 
TABLE OF CASES. XCIX 
 
 PAGE 
 
 Wilkinson v. Malin, 2 Tyr. 544 ; 1 L. J. Ex. 234 . . . . 15 
 
 V. Parry, 4 Riiss. 272 207, 333, 334 
 
 Be, 9 Eq. 343 134 
 
 Re, 12 W. K. 522 211 
 
 V. Wilkinson, 2 S. & S. 237 202 
 
 Wilks V. Groom, 3 Drew. 584 ; 4 W. R. 697 ; 27 L. T. N. S. 270 ; 
 
 20 Jur. N. S. 681 98 
 
 Willats V. Busby, 5 Bea. 193 35 
 
 Willes V. Greenhill, 29 Bea. 376 ; 4 D. F. & J. 147 ; 31 L. J. Ch. 
 
 1 ; 5 L. T. N. S. 336 ; 7 Jur. N. S. 1134 ; 10 W. R. 33 . 291 
 
 Willeter v. "Dobie, 2 K. c& J. 647 252 
 
 Willett V. Blanford, 1 Ha. 253 287 
 
 Williams v. Ailesbnry Railway Co., 9 Ch. 684 ; 43 L. J. Ch. 825 ; 
 
 28 L. T. N. S. 547 106 
 
 V. Corhet, 8 Sim. 349 55, 200 
 
 V. Longfellow, 3 Atk. 581 11 
 
 V. Nixon, 2 Bea. 472 ; 9 L. J. Ch. 269 . . . 13, 18 
 
 V. Powell, 15 Bea. 468 287 
 
 Williams Re, 4 K. & J. 87 208 
 
 V. Williams, 32 Bea. 370 62, 66 
 
 Williamson D. Codrington, 1 Ves. Sen. 511 . . . . 31, 36 
 
 V. Naylor, 3 Y. & C. Ex. 208 39 
 
 V. Seaber, 3 Y. & C. 717 192 
 
 Willis V. Hiscox, 4 M. & Cr. 197 223 
 
 . V. Kibble, 1 Bea. 559 199, 200 
 
 V. Kymer, 7 Ch. D. 181 ; 38 L. T. N. S. 207 . . . . 57 
 
 V. WilUs, 2 Atk. 71 67, 68 
 
 Wills v. Sayers, 4 Mad. 409 257 
 
 WUlock V. Noble, L. B. 7 H. L. 580 ; 44 L. J. Ch. 345 ; 23 W. R. 
 
 809 ; 32 L. T. N. S. 410 257, 259 
 
 Wilmot V. Pike, 5 Ha. 14 291 
 
 Wilson u Allen, IJ. &W. 611 122 
 
 V. Bennett, 20 L. J. Ch. 126 23 
 
 V. Clapham, IJ. & W. 38 73 
 
 u Halliley, 1 R. & M. 590 155 
 
 V. Moore, 1 M. & K. 126 297, 298, 330 
 
 . Re, 2 J. & H. 619 ; 32 L. J. Ch. 191 ; 7 L. T. N. S. 772 ; 
 
 11 W. R. 295 73 
 
 V. Spencer, 3 P. W. 172 160 
 
 r. Wilson, 1 Sim. N. S. 288 ; 2 Keen, 249 . . . 153, 273 
 
 Wiltshire v. Rabbits, 14 Sim. 76 291 
 
 Wilton V. Hill, 25 L. J. Ch. 156 268 
 
 Windham D. Graham, 1 Russ. 331 161 
 
 Wingrave v. Palgrave, 1 P. W. 401 161 
 
C TABLE OF CASES. 
 
 PAGE 
 
 Winslow V. Tighe, 2 B. & B. 196 77 
 
 Winter v. Rudge, 15 Sim. 596 . . 205 
 
 Wise, Re, I. R 3 E^. 599 214 
 
 V. Wise, 2 J. & L. 403 13 
 
 Witchcot V. Souch, 1 Rep. in Ch. 97 116 
 
 Withers v. Withers, Amb. 151 n 25, 63, 67 
 
 Withington v. Withington, 16 Sim. 104 210 
 
 Wolley V. Jenkins, 23 Bea. 56 ; 5 W. R. 281 ; 28 L. T. N. S. 362 ; 
 
 3 Jur. N. S. 321 117 
 
 Wood V. Birch, Sugd. V. & P. 700 69 
 
 1). Cox, 2 M. & Cr. 684 . . . . \ . . . 53 
 
 ■ u Downes, 18 Ves. 128 194 
 
 V. Hardisty, 2 Coll. 542 333 
 
 V. Harman, 5 Mad. 368 ....'.. . 125 
 
 V. Patteson, 10 JBea. 541 103 
 
 ■ V. Weightman, 13 Eq. 434 ; 26 L. T. N. S. 385 ; 20 W. R. 459 19 
 
 Woodcock V. Dorset, 3 B. C. C. 569 ; 3 V. & B. 82 n. . . . 161 
 
 Woodford v. Charnley, 28 Bea. 96 30 
 
 Woodgate, Re, 5 W. R. 448 208 
 
 Woodhouse v. Meredith, IJ. & W. 204 182 
 
 V. Woodhouse, 8 Eq. 514 ; 38 L. J. Ch. 481 ; 20 L. T. 
 
 N. S. 209 ; 17 W. R. 583 323 
 
 Woodroffi). Johnston, 4 1. Ch. R. 319 31 
 
 Woodward v. Woodward, 3 D. J. & Sm. 672 ; 11 W. R. 1007 248, 249 
 
 Woolmore v. Burrows, 1 Sim. 512 48 
 
 WorraU v. Harford, 8 Ves. 8 237 
 
 Worthington v. Curtis, 1 Ch. D. 419 63 
 
 V. Evans, 1 S. & S. 165 12, 104 
 
 V. MoCraer, 23 Bea. 83 176 
 
 Wray v. Steele, 2 V. & B. 388 67, 68 
 
 Wren v. Kirton, 11 Ves. 377 99 
 
 Wrey v. Smith, 14 Sim. 202 94 
 
 Wright V. Atkyns, T. & B. 143 56 
 
 V. Chard, 4 Dr. 673; 8 W. R. 35, 122, 334; 29 L.J. Ch. 
 
 82, 415; 6 Jur. N. S. 476; 1 L. T. N. S. 182; 2 L. T. 
 
 N. S. 104 323 
 
 ■ ■ D. Lamhert, 6 Ch. D. 649 115 
 
 V. Pearson, 1 Eden, 125 2, 8 
 
 - — - Re, 3 K. & J. 419 236 
 
 V. Wright, 2 J. & H. 647 247 
 
 Wrigley v. Sykes, 21 Bea. 337; 4 W. R. 228; 25 L. J. Ch. 492; 26 
 
 L. T. N. S. 252 ; 20 Jur. N. S. 78 128 
 
 Wroe V. Seed, 4 Giff. 425 285 
 
 Wyatt u Sharratt, 3 Bea. 498 141,275 
 
TABLE OF CASES. CI 
 
 PAGE 
 
 Wych V. East India Co., 3 P. W. 309 279 
 
 V. PacMngton, 3 B. P. C. 44 . .58 
 
 ■\Vyche, Ee, 11 Bea. 209 . . . 201 
 
 T\Vlly, Ee, 28Bea. 458; SW. E. 645 . . 233 
 
 Wyman v. Carter, 12 Eq. 309; 40 L. J. Ch. 559 12, 121 
 
 Wynch v. Wynch, 1 Cox, 433 . 171 
 
 Wynne v. Hawkins, 1 Bro. C. C. 179 . . . 54 
 
 V. Hmnberston, 27 Bea. 421 ; 28 L. J. Ck 281 227 
 
 Wynter v. Bold, 1 S. & S. 507 163 
 
 Yardley v. HoUand, 20 Eq. 428 ; 23 W. E. 301 3u7 
 
 Yate V. Fettiplace, Pr. & Ck 140 168 
 
 Yates V. Yates, 28 Bea. 637 . . 93 
 
 York Buildings v. Mackenzie, 8 B. P. C. 42, 7u . 191, 192 
 
 Youde V. Cloud, 18 Eq. 634; 44 L. J. Ch. 93 ; 22 W. E. 764 241 
 
 Young V. Martin, 2 Y. & C. C. C. 582 55 
 
 V. Waterpark, 15 L. J. Cli. 63 314 
 
 Younghusband v. Gisbome, 1 CoH 401 . . 177 
 
A DIGEST 
 
 OF THE 
 
 PEINCIPLES OF THE LAW 
 
 BBLATIKG TO 
 
 TKUSTS AND TEUSTEES. 
 
 CHAPTEE I. 
 
 OF VESTING THE LEGAL ESTATE IN THE TRUSTEE. 
 
 l.—By Will. 
 
 (1.) In devises of freeholds, the analogy of the Statute Devises of 
 of Uses, as an index of the intention of the testator, will coifstrvied 
 he followed, so as to vest a sufHcient portion of the legal by analogy 
 estate in him to whom the use is limited. The ground of ^f uses? ° 
 this rule is "that the will shews an intention that the same 
 rules which the Statute of Uses made applicable to settle- 
 ments of real estate should be applied to the gifts or 
 devises by will": Baher v. White, 20 Eq. 171. 
 
 (2.) In devises of copyholds, which are not affected by Devises of 
 the Statute of Uses, the analogy above referred to fails, ™^^ ° ^' 
 and thus a devise of copyholds to A. upon trust for, or to 
 the use of, or to transfer to B. vests the legal estate in A. : 
 Baher v. White, 20 Eq. 166 ; Allen v. Bewsey, 7 Ch. D. 
 453, 458 ; Doe v. Nicholls, 1 B. & C. 336 ; and see Doe v. 
 Barthrop, 5 Taunt. 382. 
 
 (3.) A trust of leaseholds which are also not within the Leaseholds 
 Statute, is not executed by it, and the term will pass to gimUariTto 
 the trustee in the same way as copyholds, although no copyholds, 
 duty or office is thrown upon him requiring that he should 
 
<■ VESTING THE LEGAL ESTATE IN THE TRUSTEE. 
 
 have the legal ownership : 2 Jarm. Wills, 285 ; Stevenson 
 V. Mayor of Liverpool, L. R. 10 Q. B. 81 ; Baker v. White, 
 20 Eq. 166. 
 Extent of But if the purposes of the trust render it unnecessary 
 by^trus- ^° ^^^^ ^he trustees should take the whole term, e. g., a direc- 
 tees. tion to executors (even without a direct bequest to them) 
 
 to apply the rents during a minority or a life, they will 
 have the legal estate only until the infant attains 21, or 
 until the life drops : 2 Jarm. Wills, 285, 286. ; Stevenson 
 V. Mayor of Liverpool, supra. 
 Legalestate But a devise to trustees (with or without words of in- 
 duties to heritance) to the use of, or upon trust for another, will not 
 be per- 'be construed in any case according to the analogy of the 
 Statute of Uses, or vest the legal estate in the trustees 
 unless they have some duty to perform, subject to which 
 others are to have the benefit of the estate : Wright v. 
 Pearson, 1 Eden, 125. 
 Duration of With regard to the quantum of the legal estate the law 
 indepen- ^^ ^he Same with regard to freeholds, copyholds, and lease- 
 deut of holds : Baker v. White, 20 Eq. 166. 
 
 tenure. 
 
 Trustees do not take the legal estate under the fol- 
 lowing devises : — 
 
 "A. to To A. to the use of, or in trust for, B. simpliciter : Baker 
 
 use of B." ^_ TfAiie, 20 Eq. 171. 
 
 "Permit Upon trust to " permit and suffer " another to receive 
 
 andsuffer.'^ the rents : Baker v. White, 20 Eq. 171 ; and see the note 
 to Carwardine v. Garwardine, 1 Ed. 36, in which the old 
 cases are collected; Doev. Bolton, 11 A. & E. 188. 
 
 "payor Upon trust " to payor permit and suffer " another to 
 
 permit. receive the rents : Baker v. White, supra ; Doe v. Biggs, 
 2 Taunt. 109. 
 
 Charge of Upon trusts coupled with a charge of debts, without a 
 direction to the trustees to pay them, and without an ap- 
 pointment of the trustees as executors : Kenrich v. Beau- 
 clerck, 3 B. & P. 178 ; Doe v. JEuurt, 7 A. & E. 668 ; see 
 Creaton v. Greaton, 3 Sm. & G. 386, 392. 
 
 wbere Upon trusts in a case in which the testator himself has 
 
DEVISES PASSIiSra THE LEGAL ESTATE. 3 
 
 only an equitable estate, where no estate at all passes to testator 
 the trustee : 2 Jarm. Wills, 286. legalestate. 
 
 Upon trusts which have ceased to require performance, Where 
 or fail — in which case there is a resulting trust for the heir fail, 
 of the testator : Robinson v. Cuming, 1 Atk. 473 ; Cox 
 V. Parker, 22 Bea. 168 ; 25 L. J. Gh. 873. 
 
 Trustees take the legal estate under the following 
 devises : — ■ 
 
 Upon trust to receive and pay rents to another : Doe v. To receive 
 Homfray, 6 A. & E. 206. ^""^ P'^y- 
 
 Upon trust to pay the clear rents after payment of rates To pay 
 and taxes : Shapland v. Smith, 1 B. C. C. 74. 
 
 Upon trust to pay the " net " rents to the cestui que ^° P^J 
 trust : Barker v. Greenwood, 4 -M. & W. 421. rents. 
 
 Upon trust to permit another to receive rents, but so Trustees' 
 that his receipts shall be with the approbation of the tion to re- 
 trustees : Gregory v. Henderson, 4 Taunt. 772. ceipts. 
 
 Upon trust to permit another to receive rents, but with Trustees 
 a power to the trustees to give receipts : see Baker v. receipts. 
 White, 20 Eq. 166. [In that case copyholds were included 
 in the devise, and the power was held to apply to them 
 only, as the trustees took the legal estate in them at all 
 events.] 
 
 Upon trust to permit a feme covert to receive the rents To permit 
 to her separate use : Harton v. IIarton,7 T. R. 652; Nevil receive. 
 V. Saunders, 1 Vern. 416; Browne y. Whiteway, 8 Ha. 145, 
 in which Harton v. Harton is commented on. 
 
 Upon trust to receive the rents and apply them annually Mainte- 
 for the maintenance of a tenant for life : Silvester v. Wil- 
 son, 2 T. R. 444 ; Reynell v. Keynell, 10 Bea. 21. 
 
 Upon trust to apply rents for the maintenance of infant 
 devisees presumptively entitled in remainder after a prior 
 life estate : Berry v. Berry, 7 Ch. D. 657. 
 
 Upon trust to pay debts charged on the land, the trustees Charge of 
 being appointed executors : Creaton v. Creaton, 3 Sm. & 
 G. 386,. 392. 
 
 B 2 
 
V£STI2S'^G THE LEGAL ESTATE IN THE TEUSTEE. 
 
 To pay- 
 debts. 
 
 Trust till 
 debts paid. 
 
 Till sum 
 raised. 
 
 Wills Act, 
 s. 30. 
 Whole 
 estate of 
 testator to 
 pass to 
 trustee 
 unless a 
 less estate 
 is given by 
 the will. 
 
 Sect. 31. 
 Where 
 no benefi- 
 cial life 
 estate is 
 given, or if 
 given the 
 trusts re- 
 quire es- 
 tate be- 
 yond life. 
 
 Devise to 
 trustees 
 and their 
 heirs is 
 
 facie a fee. 
 
 Upon trust to pay debts and legacies, without a charge 
 and without any provision limiting the liability of the real 
 estate to insufiSciency of personalty : see Murthwaite v. 
 Jenkinson, 2 B. & C. 357. 
 
 Upon trust until debts are paid : Hitckens v. Hitchens, 
 2 Vern. 403. 
 
 Upon trust until a sum of money is raised : Thomason 
 V. Mackworth, 0. Bridgm. 507; Glover v. Monckton, 10 
 Moore, 453. 
 
 Quantum of Estate taken. 
 
 " Where any real estate (other than or not being a 
 presentation to a church) shall be devised to any trustee 
 or executor, such devise shall be construed to pass the fee 
 simple or other the whole estate or interest which the 
 testator had power to dispose of by will in such real 
 estate, unless a definite term of years, absolute or deter- 
 minable, or an estate of freehold, shall thereby be given 
 to him expressly or by implication :" Wills Act, 1 Vict, 
 c. 26, s. 30. 
 
 " Where any real estate shall be devised to a trustee 
 without any express limitation of the estate to be taken 
 by such trustee, and the beneficial interest in such real 
 estate, or in the surplus rents and profits thereof, shall 
 not be given to any person for life, or such beneficial 
 interest shall be given to any person for life, but the 
 purposes of the trust may continue beyond the life of 
 such person, such devise shall be construed to vest in such 
 trustee the fee simple, or other the whole legal estate 
 which the testator had power to dispose of by will in such 
 real estate, and not an estate determinable when the pur- 
 poses of the trust shall be satisfied:" ibid. s. 31. 
 
 A devise to trustees and their heirs upon trusts to per- 
 form certain duties and subject thereto upon trust for a 
 tenant for life, with a devise over in the form of a lea-al 
 devise in tail or in fee, is primd facie a devise of the 
 legal estate in fee to the trustees : Collier v. Walters, 17 
 Eq. 252. 
 
DEVISES WHICH PASS FEE SIMPLE. 5 
 
 In a devise for purposes which are to last only for a 'Heirs' 
 
 certain time, the use of the word ' heirs ' will not give necessarily 
 
 a fee, and the devise will be cut down to the time neces- 1"'^^ ^ 
 
 lee. 
 sary for the purposes : Doe v. Bavies, 1 Q. B. 438 ; Shaw 
 
 V. Weigh, 1 Eq. Ca. Abr. 185 ; Bagshaw v. Spencer, 1 Ves. 
 
 Sen. 142. 
 
 In a devise for purposes which by their nature extend Indefinite 
 over an indefinite time, the fee will not be cut down : requ^T'tlie 
 Collier v. Walters, 17 Eq. 252; Poad v. Watson, 6 E. & B. f^e. 
 606. 
 
 If the words are such as pass a fee it lies upon those Onus on 
 who contend for a less estate to point out such less gartrus-" 
 estate on the face of the will : Collier v. Walters, supra; tees take 
 Baker v. White, 20 Eq. 174 ; and see s. 30 of 1 Vict. c. 26, thaVa fee. 
 supra. 
 
 " And generally where the purposes of the trust upon Estate of 
 which the estate [whether freehold, copyhold, or leasehold] (,™xteifsive 
 is devised to trustees, are such as not to require a fee, withpur- 
 as for instance where the trust is to pay annuities, or to trust. 
 pay over rents to a party for life, there, if subject to the 
 aforesaid trusts the estate is given over, the parties taking 
 under such devise over have been held to take legal 
 estates, the estate given to the trustees, even when given 
 with words of inheritance, having been in such cases taken 
 to have been meant to be coextensive only with the trust 
 to be performed :" Baker v. White, 20 Eq. 166; Watson 
 V. Pearson, 2 Exch. 593 ; Blagrave v. Blagrave, 4 Exch. 
 550. 
 
 Trustees have been held to take the fee under the 
 following devises : — 
 
 In a devise to trustees (with or without " heirs ') upon Trust for 
 trust to sell and convey, or mortgage, for the purpose mortgage. 
 of making payments : Doe v. Ewart, 7 A. & E. 636 ; 
 Bagshaw Y. Spencer, 1 Ves. Sen. 142; Rackham,v. Siddall, 
 1 Macn. & G. 607; Cropton v. Davies, L. K 4 C. P. 159. 
 
 Or, though the trust to convey arises only on the death Power of 
 
VESTING THE LEGAL ESTATE IN THE TRUSTEE. 
 
 sale sub- 
 ject to life 
 estate. 
 
 Indefinite 
 power of 
 
 Indefinite 
 power of 
 leasing. 
 
 Taking sur- 
 renders. 
 
 Cutting 
 timber. 
 Contingent 
 remain- 
 ders. 
 
 To pay 
 debts and 
 legacies. 
 
 of the tenant for life, if the duties to be performed by the 
 trustees are such as to make it necessary that they should 
 take the fee.: Doe v. Bolton, 11 A. & E. 188. 
 
 Where the power of sale is not confined to so much as is 
 sufficient to pay the debts, and there is no devise over of 
 the unsold part, the trustees retain the fee they took in 
 order to sell : Doe v. Edlin, 4 A. & E. 582 ; Gihson v. 
 Bott, 7 Ves. 95. 
 
 In a devise to trustees and their heirs with a power 
 to lease for undefined periods, e.g., "for any term they 
 should think proper" {Doe v. Willan, 2 B. & Aid. 84), or, 
 "aS shall be consistent with their duty and trust, or other- 
 wise " (Doe V. Walbank, 2 B. & Ad. 554). 
 
 Or, in such a devise with a power of leasing, with the 
 duty of paying taxes and keeping premises in repair : 
 White. V. Parker, 1 Bing. N. C. 573. 
 
 In Collier v. Walters, 17 Eq. 252, Jessel, M. R., cited 
 Doe V. Willan as an express authority that where there 
 is an indefinite power of leasing the trustees take an 
 estate and not merely a leasing power, and that that 
 estate, being an indefinite one, must be a fee in order to 
 allow a leasehold interest to be carved out of it. If this 
 is so, the cases of Ackland v. Lutley, 9 A. & E. 879, 1 Per. 
 & D. 636, &nd Ackland v. Pring, 2 M. & Gr. 937, 3 Scott, 
 N. R. 297, must be treated as decided on questionable 
 grounds ; but such cases may now be taken as controlled 
 by ss. SO and 31 of the Wills Act, for an indefinite power 
 may, of course, extend beyond the life of a tenant for life. 
 
 Or, where there is a power to the trustees to take sur- 
 renders of leases : Blagrave v. Blagrave, 4 Ex. 550. 
 
 Or, to cut timber : Collier v. Walters, supra. 
 
 Or, to preserve contingent remainders which may ex- 
 tend beyond the life of the tenant for life : Watkins v. 
 Frederick, 11 H. L. C. 358 ; but see Gunliffe v. Brancker, 
 3 C. D. 393. 
 
 In cases in which after a devise to trustees and their 
 heirs they are directed to pay debts, or debts and legacies : 
 Doe V. Ewart, 7 A. & E. 636 ; Robinson v. Caming, 1 Atk. 
 
DEVISES WHICH PASS LESS THAN THE FEE. 7 
 
 473 ; Creaton v. Greaton, 3 Sm. & G. 386 ; Smith v. 
 Smith, 11 C. B. N. S. 121; Collier v. Walters, 17 Eq. 252. 
 This would not be the case if another possible interest 
 can be shewn on the face of the will, e.g. an estate pur 
 autre vie with a further chattel interest till the debts 
 are paid. [Doe v. Cafe, 7 Exch. 675 ; CordaVs Case, Cro. 
 Eliz. 316 ; Carter v. Barnadiston, 1 P. W. 505 ; Doe 
 V. Simpson, 5 East, 162, are within the operation of the 
 sections of the Wills Act above quoted.] 
 
 In a devise of the "entire property" to executors for "Entire 
 the indefinite purposes of the testator's bounty, the fee ^^°^^^ ^■ 
 simple lands of the testator will pass to the executors : 
 Murphy v. Donnelly, I. R 4 Eq. 111. 
 
 Or by a devise to "trustees of inheritance for the exe- "Trustees 
 cution hereof," in a case where the testator must have ance." 
 known that his personal estate would be insufficient to 
 pay the annuities he gave: Trent v. Trent, 1 Dow App. C. 
 102. 
 
 On an appointment of A. and B. " as also their heirs To trustees 
 and assigns," they take the legal fee and are not mere tjie;r\e°j.s 
 supervisors of the will : Bennett v. Bennett,^2 Dr. & Sm. &c. 
 272 ; and see Doe v. Pratt, 6 A. & E. 180. 
 
 Where some of the trusts require that the trustees Non- 
 should take the legal estate while others do not, the of^devis™ 
 trustees will be held to take the legal estate throughout, t° trustees 
 
 after legal 
 
 though such trusts are not m each case preceded by de- deTises. 
 vises in the form of legal estates to the trustees : Hawkins 
 V. Luscombe, 2 Swans. 391 ; Brown v. Whiteway, 8 Ha. 
 145 ; HaHon v. Harton, 7 T. R. 652 ; Toller v. Attwood, 
 15 Q. B. 929. 
 
 Where there are annuities which may continue after Contiruiug 
 the death of the trustees : Doe v. Woodhouse, 4 T. R. 89. 
 
 Trustees have been held to take less than the fee 
 in the following cases : — 
 
 On a devise of copyholds to trustees upon trust to T" "trans- 
 
 . . fer " CODY- 
 
 transfer them to another — in which case they do not holds. 
 
VESTING THE LEGAL ESTATE IN THE THUSTEE. 
 
 Prior life 
 estate. 
 
 Definite 
 
 leasing 
 
 power. 
 
 Estate pur 
 autre vie 
 expressly 
 given. 
 
 Mainten- 
 ance 
 during 
 minority. 
 
 Legal gifts 
 over. 
 
 To preserve 
 contingent 
 remain- 
 ders. 
 
 Words to 
 be followed 
 unless in- 
 consistent. 
 
 require the legal estate at all : Doe v. Nicholls, 1 B. & C. 
 336. 
 
 The fee taken by the trustees for the purpose of a 
 power of sale may be subject to a prior legal life estate: 
 Doe V. Bolton, 11 A. & E. 188. 
 
 Where a power of leasing is restricted to the time 
 when the trust ceases, and nothing else remains to be 
 done, the legal estate ceases with it : Doe v. Cafe, 7 Exch. 
 675. 
 
 If an estate pur autre vie is expressly given, the Court 
 does not cut it down to a mere chattel interest, though 
 the latter might be sufficient for the purposes of the trust : 
 Wright v. Pearson, 1 Ed. 123. 
 
 A devise to trustees and their heirs in trust for main- 
 tenance during a minority and then to the use of the 
 minor, gives the trustees a term until the minor attains 
 
 21 : Goodtitle v. Whitby, 1 Burr. 226 ; Doe v. Mcholls, 
 1 B. & Cr. 336. 
 
 A devise in trust to pay rents to a tenant for life, with 
 legal gifts over, gives the trustees an estate pur autre 
 vie during the life of the tenant for life : Cooke v. Blake, 
 1 Exch. 220 ; Play ford v. Hoare, 3 Y. & J. 175 ; Adams 
 V. Adams, 6 Q. B. 860; Doe v. Ironmonger, 3 East, 533. 
 
 A trust to preserve contingent remainders is limited to 
 the period during which such contingent remainders may 
 arise : Doe v. Hicks, 7 T. E. 483 ; Haddelsey v. Adams, 
 
 22 Bea. 266 ; Rochfort v. FitzMaurice, 2 Dr. & W. 1 ; 
 but see Watki/ns Y.Frederick, 11 H. L. C. 358; Saunders 
 V. Eppe, 9 W. R 69. 
 
 On this subject generally there is a useful note to Jef- 
 ferson V. Morton, 2 Wms. Saund. 11 c. n (o) and 11 c. 
 n (r). 
 
 II.— % Deed. 
 
 In the case of limitations to trustees by deed, the Court 
 will be guided by the strict legal meaning of the words 
 in which such limitations are made, unless such a con- 
 struction would give rise to some manifest contrariety or 
 
QUANTUM OF LEGAL ESTATE PASSED BY DEED. 9 
 
 contradiction, rendering a different interpretation necessary 
 in order to effectuate the intention of the parties : Lewis. 
 V. Bees, 3 K. & J. 132 ; and see Cooper v. Kynock, 7 Ch. 
 398 ; see Re White and Hindle, 7 Ch. D. 201. 
 
 Under a deed the legal fee simple will pass to the Where fee 
 
 , , passes. 
 
 trustees. 
 If, after a legal limitation to a tenant for life, there is Trust es- 
 
 ,. . . ^ , . ^ tate after 
 
 a limitation to trustees to preserve contingent remainders life estate. 
 without adding such words as "during the life of the 
 tenant for life ": Lewis v. Eees, 3 K. & J. 132 ; Wickham 
 V. Wickham, 18 Ves. 419 ; Golmore v. Tyndall, 2 Y. & J. 
 60.5; 
 
 [Curtis V. Price, 12 Ves. 89, and Beaumont v. Salis- 
 bury, 19 Bea. 198, are overruled by Cooper v. Kynock, ubi 
 supra.] 
 
 In a conveyance to a trustee and his heirs upon trusts Power of 
 for A. for life, and after his death for his widow for life, ine^°t be- 
 and then for his daughter for her separate use, and then ^"S^ ^^s»^ 
 
 silt ovGr, 
 
 as the widow should appoint by will, with a remainder 
 over to the use of the widow and her heirs, it was held 
 that the trustees' fee simple was not cut down : Cooper v. 
 Kynock, supra. 
 
 So they must take the fee where the tenant for life 
 has a power of appointment, by virtue of which she might 
 introduce contingent remainders which might have been 
 defeated without such estate being vested in the trustees : 
 Venables v. Morris, 7 T. E. 342 ; Bochfort v. Fitzmaurice, 
 2 Dr. & W. 1. 
 
 A term given to different trustees from those to whom Equitable 
 the fee simple is in words limited by the deed may take 
 effect as an equitable term, and so not be inconsistent 
 with the fee so given : Lewis v. Bees, ubi supra. 
 
 A power of leasing given to the tenants for life in Po^^rof 
 
 . . . leasing. 
 
 Lewis V. Bees was also held not to be inconsistent with a 
 fee in the trustees, as the leases might take effect as 
 limitations of the legal estate by virtue of the power as 
 in Isherwood v. Oldknow, 3 M. & Selvv. 404. 
 
If trustee 
 does not 
 intend to 
 act, lie 
 must dis- 
 claim. 
 
 Form of 
 disclaimer : 
 
 By deed. 
 
 CHAPTEE II. 
 
 OF DISCLAIMER AND ACCEPTANCE OF THE TRUST. 
 
 I. Of Disclaimer. 
 
 Whenever a person is appointed a trustee or executor 
 upon trust, it is advisable for him, if he does not intend to 
 act as such, to do some act to evidence such intention. 
 
 As to the mode of disclaimer : — 
 
 A deed of disclaimer is the most effectual mode of renun- 
 ciation : Stacey v. Mph, 1 M. & K. 199 ; Adamis v. Taun- 
 ton, 5 Mad. 435 ; Townson v. Tickell, 3 B. & A. 31. 
 
 But a release or conveyance to the co-trustees will, if its 
 essence be disclaimer, be sufficient : Nicloson v. Words- 
 worth, 2 Sw. 365 ; but see Crewe v. Biclcen, 4 Ves. 97, in 
 which it was held that the trust remained, though the 
 estate was conveyed away. 
 
 A disclaimer at the bar of the Court is good for the pur- 
 pose of giving jurisdiction to appoint a new trustee : Foster 
 v. Dawber, 1 Dr. & Sm. 172 ; but see Re Ellison, 2 Jur. 
 N. S. 62. 
 
 A mere parol disclaimer may be sufficient : Bingham, v. 
 Clanmorris, 2 Moll. 253 ; Toiunson v. Tickell, 3 B. & A. 
 39. In the argument in Doe v. Harris, 16 M. & W. 517, 
 will be found the law on the now obsolete doctrine that 
 disclaimer must be by matter of record and not by matters 
 in pais : also that parol disclaimer was incapable of operat- 
 ing upon a use. 
 Byconduct. The conduct of a trustee in abstaining from interference 
 
 By release 
 or convey- 
 ance. 
 
 At the bar. 
 
 By parol. 
 
DISCLAIMER OF THE TRUST. 11 
 
 or otherwise will in a proper case be taken to amount to 
 disclaimer : White v. McBermott, I. R. 7 C L. 1 ; Stacey 
 V. Elph, 1 M. & K. 195. 
 
 The renunciation of probate as to personal estate, Renounc- 
 coupled with not acting for three years in the trusts of the }^^^^_ 
 real estate, has been treated as conclusive evidence of dis- 
 claimer : Roberts v. Gordon, 6 Ch. D. 531. 
 
 Delay in disclaiming will not necessarily be construed Effect of 
 into acceptance : Nohle v. Meymott, 14 Eea. 471 ; but see "^^'^y- 
 Re JJniacke, 1 .J. & L. 1 ; Re Needham, 1 J. & L. 36. 
 
 Where a trust is imposed upon a person without his Counsel's 
 sanction he is entitled to the costs of consulting counsel as "P^"''™- 
 to any disclaimer he is called upon to make : Re Tryon, 7 
 Bea. 496. 
 
 After the institution of an action a trustee desiring to Disclaimer 
 disclaim is in the position of an ordinary defendant dis- ^^^j^j^J 
 claiming an interest, and will have his costs between party tee. 
 and party only : Norway v. Norway, 2 M. & K. 278 ; Bray 
 V. West, 9 Sim. 429 ; Heap v. Jones, 5 W. R. 106 ; Bul- 
 keley v. Eglinton, 1 Jur. N. S. 994. [Sherratt v. Bentley, 
 1 R. & M. 655, is overruled.] 
 
 The disclaimer should be in a proper form ; and the Form of 
 trustee should not seek to meet in his defence any of the disclaimer 
 
 •' by defence. 
 
 allegations of the statement of claim : Martin v. Persse, 
 1 Moll. 146; but see Benbow v. Bavies, 11 Bea. 369. 
 
 He need not go into evidence to prove that he has never Evidence in 
 acted : Glover v. Rogers, 11 Jur. 1000; unless the plaintiff support. 
 delivers a reply to him : Williams v. Longfellow, 3 Atk. piain^ff 
 581 ; Ford v. C/iesterfield, 16 Bea. 516. replies. 
 
 A person who simply refuses to do any act in the trust Suit caused 
 will be entitled to the costs of a suit to appoint new trustees : ^^ refusal 
 Legg v. Machrell, 2 D. F. & J. 551. 
 
 As to the effect of disclaimer : — Effect of 
 
 disclaimer. 
 
 A disclaimer does not affect the estate of the other vestses- 
 
 trustees, but vests it in them exclusively : Small v. Mar- tate in 
 
 wood, 9 B. & C. 308 ; Townson v. Tickell, 3 B. & A. 31 ; trustees, 
 Browell v. Reed, 1 Ha. 434. 
 
12 
 
 ACCEPTANCE AND DISCLAIMER OF THE TRUST. 
 
 is retro- 
 spective, 
 
 enables 
 power lo be 
 exercised 
 by other 
 trustees. 
 
 Where all 
 liisclaim. 
 
 Legal 
 
 Executor of 
 executor. 
 
 Covenant 
 not en- 
 forceable 
 by acting 
 trustees 
 only. 
 
 And it relates back to the original appointment : Pep- 
 percorn V. Wayman, 5 De G. & Sm. 230. 
 
 Where two or more persons are appointed trustees by 
 name, or merely as " trustees," and any of them disclaim, 
 powers of sale, of consent to marriage, &c., may be exer- 
 cised by those who do not : Hawkins v. Kemp, 3 East, 
 410, 437; Sari Granville v. McNeile, 7 Ha. 156 ; Adams 
 V. Taunton, 5 Mad. 435 ; Cooke v. Crawford, 13 Sim. 
 96 ; Clarke v. Parker, 19 Ves. 1, 15 ; Boyce v. Corbally, 
 LI. & G. t. Plunk. 102 ; Worthington v. JEvans, 1 S. & S. 
 165 ; White v. McDermott, I. R. 7 C. L. 1. 
 
 If all the executors and trustees renounce, a discre- 
 tionary power of sale for the purpose of distributing the 
 personalty may be exercised by the administrator cum 
 test, annexo, though the debts have been long since paid 
 and he has assented to the bequests in the will : Wyman 
 V. Carter, 12 Eq. 309. 
 
 The legal estate in freeholds vests in the settlor's heir : 
 Roberts v. Gordon, 6 Ch. D. 535. 
 
 The executor of an executor cannot refuse to act in 
 the administration of the estate of which the latter was 
 executor : Brooke v. Haymes, 6 Eq. 25 ; see 1 Wms. Exors., 
 6th ed. 265. 
 
 Trustees under a covenant cannot sue upon the cove- 
 nant during the life of one of them who has disclaimed : 
 Wetherell v. Langston, 1 Exch. 634. 
 
 II. — Of A cceptance. 
 
 Primd facie a man is presumed to assent to a devise or 
 grant to him, and upon a similar principle a trustee is 
 deemed to have accepted the trust until the contrary is 
 proved : Townson v. Tickell, 3 B. & A. 31. 
 
 By signing Acceptance is shown by signature of the trust deed : 
 deed.™^ Montford V. Cadogan, 19 Ves. 637. 
 
 Proof of Proof of actual execution coram testibus is not neces- 
 
 sary : Buckeridge v. Glasse, Cr. & Ph. 131. 
 
ACCEPTANCE OF THE TRUST. 13 
 
 An executor upon trust accepts the trust by proving the ^y proving 
 ■will: Mucklow v. Fuller, Jac. 198 ; Booth v. Booth, 1 Bea. 
 125 ; and see Williams v. Nixon, 2 Bea. 472 ; Styles v. 
 Guy, 1 Macn. & G. 431. And the rule is the same where 
 the trusts refer to real estate : Ward v. Butler, 2 Moll. 533. 
 
 An executor of an executor cannot accept the adminis- Acceptance 
 tration of his own testator's assets without assuming that ^Jf^r,?*'"^ 
 of the original testator's assets : Brooke v. ffaymes, 6 Eq. tor ; 
 25 ; Williams' Executors, 276. 
 
 And a trustee under two trusts in the same settlement by trustee 
 cannot accept one and repudiate the other : Urch v. trusts ^" 
 Wallcer, 3 M. & Or. 702; but see Wellesley v. Withers, 
 4 E. & B. 750. Probably the devisee of all the trust 
 estates of a trustee of two distinct settlements can accept 
 one set of trusts and disclaim the other : Lewin, 181. 
 
 An executor proved to have assented to a legacy to be By assent 
 held on trust becomes an express trustee : Dix v. Burford, ig^^g ™^ 
 19 Bea. 409 ; especially after the appropriation of the 
 legacy : Byrchall v. Bradford, 6 Madd. 240 ; Phillipo v. 
 Munnings, 2 M. & Cr. 309 ; Exp. Dover, 5 Sim. 500. 
 
 Although a trustee have not executed the deed, if he Presump- 
 have had notice of the trust, and has not objected at the anre*°°^^ ' 
 time, he will not be allowed at a subsequent time to say through 
 that he never assented to the conveyance : Wise v. Wise, 
 2 J. & L. 403, 412. 
 
 A settlor may expressly provide that the deed shall be Provision 
 void unless all the trustees execute ; otherwise the pro- execution, 
 perty will pass to those who assent : Small v. Marwood, 
 9 B. & C. 307. 
 
 Acceptance may be presumed from mere lapse of time Acqui- 
 without any act of disclaimer : Re UniacJce, 1 J. & L. 1 ; ®^''™''®- 
 Be Needham, ibid. 34 ; Doe v. Harris, 16 M. & W. 522; 
 but see Fable v. Meymott, 14 Bea.'471. 
 
 Parol evidence is admissible as to the acceptance or Parol proof 
 non-acceptance of the trust : James v. Frearson, 1 Y. & auc^e!"^^ ' 
 G. G. G. 370. 
 
 Acceptance may be proved by acts which can be re- Acceptance 
 ferred to the character of trustee only : e. g. an executor ^ °°° "'^*' 
 
14 
 
 ACCEPTANCE OF THE TEUST. 
 
 Acting as 
 agent is 
 not accept- 
 ance, 
 
 nor having 
 trust deed 
 for safe 
 custody. 
 
 How trus- 
 tees bound 
 by recitals 
 in trust 
 deed. 
 
 Acceptance 
 by trustees 
 de facto, 
 de lenr 
 tort, or 
 imperfectly 
 appointed, 
 may be an 
 express 
 trustee. 
 
 General 
 effect of 
 acceptance. 
 
 Debt 
 
 created by 
 breach of 
 trust where 
 trustees 
 accept by 
 executing 
 deed. 
 
 trustee making payments and paying debts (White v. 
 Barton, 18 Bea. 192), bringing an action (Montford v. 
 Cadogcm, 17 Ves. 489), and generally interfering in any 
 way with the trust estate : Doyle v. Blake, 2 Sch. & L. 
 231 ; Harrison v. Graham, 1 P. W. 241, n. ; Urch v. 
 Walker; 3 M. & C. 702 ; and see Lowry v. Fulton, 9 Sim. 
 115. 
 
 But if he acts merely as agent for the trustees, himself 
 not having proved the will or acted as trustee, no accept- 
 ance will be presumed : Lowry v. Fulton, sv,pra; Stacey 
 V. Mph, 1 M. & K. 198. 
 
 A person named a trustee, but who does not execute 
 the deed, is not taken to have accepted the trust merely 
 because the deed has been delivered to him for safe cus- 
 tody : Evans v. John, 4 Bea. 36. 
 
 As to how far a trustee will be bound by recitals in 
 the trust deed : Fenwicic v. Greenwell, 10 Bea. 412 ; 
 Gore V. Botuser, 3 Sm. & G. 6 ; Westmoreland v. Hol- 
 land, W. N. 1871, 130 ; Brooke v. Haymes, 6 Eq. 25. 
 
 An imperfectly appointed trustee accepting the trust 
 is held to be a trustee de facto or de son tort : Pearce v. 
 Pearce, 22 Bea. 248 ; Hennessy v. Bray, 33 Bea. 102 ; or 
 even in the case of a general devisee of real estate not sub- 
 ject to a legacy, so that trust estates do not pass (see p. 21, 
 post), the devisee, if he act in the execution of the 
 trusts, becomes an express trustee : RacMiam v. Siddall, 
 1 Macn. & G. 607 ; Life Association of Scotland v. Siddal, 
 3 D. F. & J. 58. 
 
 The effect of acceptance, however evidenced, is to make 
 the trustee subject to all the consequences and duties 
 connected with that office : Montford v. Cadogan, 19 Ves. 
 637. 
 
 Since the 32 & 33 Vict. c. 46, it has becojne unim- 
 portant to distinguish between the cases in which a 
 deceased trustee liable for breach of trust has executed or 
 not a deed or covenant which -would constitute a specialty 
 debt, and not a simple contract debt. [For the former 
 law upon this point, see Lewin, 182 — 184.] 
 
CHAPTEE III. 
 
 OF THE DUTY OF TRUSTEES TO ACT JOINTLY. 
 
 Trustees must in general act, or will be taken to have Trustees 
 acted, jointly in all matters connected with the trust : Lee jointly; 
 V. Sankey, 15 Eq. 204 ; Messeena v. Carr, 9 Eq. 260. 
 
 All the trustees must therefore join — 
 
 In receiving and giving receipts for the trust fund : Lee inreceiving 
 
 ° ^ ^ ^ money, 
 
 V. Sankey, 15 Eq. 20'1. 
 
 In advancing money on securities : Swale v. Siuale, 22 advancing 
 
 -D KQA money, 
 
 Bea. 584. 
 
 In receiving the proceeds of a sale : Oliver v. Court, p^oeeds of 
 8 Price, 166. 
 
 In proving debts in bankruptcy : Exf. Phillips, 2 Deac. proving 
 334 ; but see Exp- Smith, 1 Deac. 385, infra. 
 
 In the case of charitable trusts the majority of the charity 
 trustees can bind the minority : Wilkinson v. Malin, 2 
 Tyr. 544 ; Ward v. Hipwell, 3 Giff. 547; Perry v. Ship- 
 way, 1 Giff 1 ; Re Congregational Church, W. N., 1866, 
 p. 196 ; and see 32 & 33 Vict. c. 110, s. 12. 
 
 Dividends and rents are receivable by one trustee. But ^^° ^^y 
 his co-trustees will be liable in case of a misappropria- rent and 
 tion : Oough v. Smith, W. N., 1872, pp. 18, 66. dividends. 
 
 The Court has in some cases ordered dividends of stock Practice of 
 to be paid to one of several trustees : Re Clinton, 8 W. R. 
 492 ; Re Coulson, W. N., 1867, p. 233 ; Re Pryor, ibid. 
 1876, p. 141. 
 
16 
 
 JOINT ACTION OP TRUSTEES. 
 
 in charity 
 trusts. 
 
 Some prov- 
 ing in 
 bank- 
 ruptcy. 
 
 As to ordering payment to " the trustees for the time 
 being," see 1 Seton, Dec. p. 88. 
 
 In the case of charities the Court orders payment of 
 dividends to all or any two : A.-G. v. Briclcdale, 8 Bea. 
 223 ; Exp. Shrewsbury Hospital, 9 Ha. App. xlv. 
 
 In special cases less than all the trustees may, it seems, 
 prove debts in bankruptcy : Exp. Smith, 1 Deac. 385. 
 
 But the cestui que trust should join in the proof : see 
 Exp. Gray, 4 D. & C. 778, 2 M. & A. 283 ; Exp. Dubois, 
 1 Cox, 310 ; Exp. Battier, Buck, 426. 
 
 Should not 
 sever de- 
 fence : 
 costs in 
 such case. 
 
 Trustees should not sever in defending actions to which 
 they are defendants, except under special circumstances ; 
 and if they do, one set of costs only will be allowed, the 
 appointment being left to the Taxing Master : Gaunt v. 
 Taylor, 2 Bea. 346 ; Course v. Humphrey, 26 Bea. 402 ; 
 Prince v. Hine, 27 Bea. 345 ; A.-G. v. Wyville, 28 Bea. 
 464. 
 
 To -whom 
 costs pay- 
 able. 
 
 When they 
 may sever. 
 
 If there is a case for severance, the whole costs are paid 
 to the innocent trustee : Webb v. Webb, 16 Sim. 55. 
 
 The following have been held to be special circum- 
 stances justifying a severance : 
 
 Non-acquiescence in a breach of trust : Webb v. Webb, 
 supra. 
 
 Where trustees live far from one another so that they 
 cannot confer as to their defence: Wiles v. Cooper, 9 Bea. 
 294, and cases cited in note, p. 299. 
 
 And generally on this point, see Gaunt v. Taylor, sup. ; 
 Anon., 1 Y. & C. C. C. 538. 
 
CHAPTER lY. 
 
 OF THE DUTY OF TRUSTEES TO ACT PERSONALLY. 
 
 Trustees cannot delegate their trust ; and though they Trustee 
 leave the trust to be performed by another, they still re- dXg°ate 
 main liable for his default to their eestid que trust: the trust. 
 Adams v. Clifton, 1 Russ. 297; dough v. Bond, 3 M. & 
 Cr. 490 ; Ingle v. Partridge, 34 Bea. 411 ; Bostock v. 
 Floyer, 1 Eq. 26. 
 
 A trustee who hands money, for investment or other- Delegation 
 wise, to his co-trustee, who misapplies it, is liable : Trutch trustee • 
 V. Lamprell, 20 Bea. 116. 
 
 So if he gives a power of attorney to his co-trustee to by giving 
 sell out stock, and the latter appropriates it : Chambers v. il^tlo 
 Minchin, 7 Ves. 185. receive, 
 
 No arrangement between co-trustees that one shall act °'^^y 
 will absolve the other from liability: Exp. Booth, Mont. ment. 
 248. 
 
 Bankruptcy trustees must not delegate the trust : Doug- Bank- 
 las V. Browne, Mont. 93; Exp. Townsend, 1 Moll. 139. trustees. 
 
 If a cheque be sent in the ordinary course to a co- Act done 
 trustee, who cashes it and' steals the money, his co-trustees cou'rse™*'^''' 
 are not liable, if his credit was unimpeached at the time : 
 Wackerbarth v. Powell, Buck, 495 ; Exp. Griffin, 2 Gl. & 
 J. 114. 
 
 Nor are they liable if the cheque be crossed and he Fraud of 
 erase the crossing : Barnard v. Bagshaw, 3D.J.&S. 355; '=''-*™s*««- 
 and see Bostock v. Floyer, 1 Eq. 26. 
 
 Money should not be given to a co-executor without Unneces- 
 some proof of the purpose for which it is required ; for ments to 
 all will be liable for what is not used for such ascer- <=o-t™3tee3. 
 
18 
 
 DUTY OF TRUSTEES TO ACT PERSONALLY. 
 
 Evidence of 
 necessity 
 and ignor- 
 ance of 
 fraudulent 
 intent. 
 
 Account- 
 ability of 
 trustees 
 who em- 
 ploy agent. 
 
 Delegation 
 to devisee 
 or stranger. 
 
 Delegation 
 to solicitor. 
 
 Receipts of 
 solicitor 
 for pur- 
 chase- 
 money. 
 
 Solicitor 
 banking 
 trust- 
 money. 
 
 When 
 money may 
 be left with 
 solicitor. 
 
 tained purpose: Shiphrooh v. Tlinchinhrook, 11 Ves. 252 ; 
 Underwood v. Stevens, 1 Mer. 714 ; Williams v. Nixon, 2 
 Bea. 472. 
 
 It follows that as executors in trust are each entitled 
 to receive assets, the one who does not is liable only for 
 misapplication if he knew of the fraud and acquiesced in 
 it ; not if he were innocently ignorant of it : Williams v. 
 Nixon, supra ; Booth v. Booth, 1 Bea. 125 ; and see further 
 as to the liability of executors : Sadler v. Hobhs, 2 B. C. 
 C. 114 ; Scurfield v. Howes, 3 B. C. C. 91 ; Chambers v. 
 Minchin, 7 Ves. 185 ; Joy v. Campbell, 1 Sch. & L. 341 ; 
 JDavis V. Spurting, 1 E. & M. 66. 
 
 The absence abroad of an authorised agent of the trus- 
 tees does not excuse them from accounting, unless they 
 can show that the possession of the vouchers by the agent 
 was not by their wilful neglect or default : Turner v. 
 Corney, 5 Bea. 515. 
 
 Trustees renouncing, and conveying to a devisee or 
 stranger who does not perform the trusts, remain liable : 
 Hardwick v. Mynd, 1 Anst. 110 ; and see Burt v. Dennet, 
 2 B. C. C. 225 ; Bradwell v. Catchpole, 3 Swans. 78, n. ; 
 Doyle V. Blake, 2 Sch. & L. 239. 
 
 Trustees should not commit to their solicitor the duty 
 of receiving trust-money, for he cannot give a valid receipt 
 for it: Anon. 12 Mod. 560; Ghost v. Waller, 9 Bea. 497. 
 
 And on a sale of trust property, a solicitor cannot give 
 a receipt for the purchase-money without the written 
 authority of the trustees : Viney v. Chaplin, 2 D. & J. 
 468, 482 ; Robertson v. Armstrong, 28 Bea. 123. And 
 after signing the receipt and executing the conveyance tlie 
 trustees should receive the money themselves : Ghost v. 
 Waller, 9 Bea. 497. 
 
 If the solicitor be allowed out of the ordinary course to 
 pay trust-money to his own account at his bankers, the 
 trustees remain liable ; Macdonnell v. Harding, 7 Sim. 178. 
 
 But money received in the ordinary course of business 
 may be left with the solicitor ; but not before it is actually 
 required : Castle v. Warland, 32 Bea. 660. 
 
DUTY OF TRUSTEES TO- ACT PERSONALLY. 19 
 
 And though the solicitor have been chosen with ordinary Frauduiont 
 care, and be of good repute at the time, trustees are 
 liable for his misapplication : Bostoch v. Floyer, 1 Eq. 26. 
 
 Though the solicitor be one of the trustees : Re Fryer, Where 
 3 K. & J. 317 ; Coomer v. Bromley, 5 De G. & Sm. 632. i"""-"" 
 
 And the delegation to a solicitor by one of the trus- ^'ustee. 
 tees renders the others liable if they knew of it and ac- to^gofLtor 
 quiesced : Griffiths v. Porter, 25 Bea. 236 ; Wood v. Weight- ^J "^^ <>£ 
 man, 13 Eq. 434. trustees. 
 
 Where the solicitor was trusted by the testator and Solicitor 
 of good, repute, trustees were held not to be liable for iQ^debts. 
 committing to him money for the purpose of settling debts : 
 Be Bird, 16 Eq. 203 ; and see Kilbee v. Sneyd, 2 Moll. 
 199 ; Bacon v. Bacon, 5 Ves. 331 ; and Churchill v. Hob- 
 son, 1 P. W. 241 ; Harrison v. Graham, 3 Hill's MSS. 
 239. 
 
 Solicitors are liable if they take the receipt of only one Receipt of 
 of the co-trustees: Lee v. Sanlcey, 15 Eq. 204; and see trustee to 
 A.-G. V. Corp. Leicester, 7 Bea. 176 ; Hardy \. Caley, 33 solicitor. 
 Bea. 365 ; Charlton v. Durham, 4 Ch. 433. 
 
 But cestms que trust cannot make the solicitor liable Trustees to 
 
 ..., ifi 1^® joined 
 
 Without joinmg the trustees as defendants, where the inaction 
 latter have committed a breach of trust by authorizing ^S^}^ 
 the solicitor to receive the money : Robertson v. Arm- 
 strong, 28 Bea. 123. 
 
 In all these cases the payment of money to solicitors Payments 
 or agents is excused where it is from necessity, which ^^^vlIss. 
 includes the ordinary course of business : dough v. Bond, 
 3 M. & Cr. 490. 
 
 This may be the case where the payment is to a co- Or to co- 
 trustee acting as agent for the rest : see Langford v. trustees. 
 Gascoyne, 11 Ves. 333 ; Shipbrook v. Hinchinbrook, 11 
 Ves. 252 ; 16 Ves. 477; Undenvood v. Stevens, 1 Mer. 
 712 ; Hanbury v. Kirkland, 3 Sim. 265 ; 
 
 If the payment was made simply to the co-trustee Payment 
 as agent and he acted in that character only : Davis v. Justee as 
 Spurling, 1 E. & M. 64. agent. 
 
 Thus a trustee is- not liable because an agent pays Liability 
 
 2 
 
20 
 
 DUTY OF TRUSTEES TO ACT PERSONALLY. 
 
 for acts of 
 
 Taking 
 security 
 from agent. 
 
 Delegatioa 
 of discre- 
 tionary 
 power, 
 
 money received pending the appointment of a new trustee 
 into a bank which fails : A dams v. Claxton, 4 Ves. 226. 
 
 And the trustee is not required to take security from 
 the agent before employing him in the ordinary course 
 of business : ^xp. Belchier, Amb. 220. 
 
 If the trust be discretionary,. the delegation of it gives 
 no power to the deputy, grantee, or devisee, or even to a co- 
 trustee to exercise it: Alexander v. Alexander, Tudor, 
 R. P. C. p. 330 ; A.-G. v. Scott, 1 Ves. Sen. 413 ; Crewe v. 
 Bicken, 4 Ves. 97 ; ReBurtt, 1 Dr. 319 ; Cole v. Wade, 16 
 Ves. 47 ; Kingham v. Lee, 15 Sim. 400. 
 
CHAPTEE V. 
 
 OF THE DEVISE OF THE LEGAL ESTATE IN TRUST 
 AND MORTGAGE ESTATES. 
 
 In the absence of an express devise of trust and mort- 
 gage estates, such estates, as also the constructive trust in 
 a vendor after a valid contract for sale, will pass under 
 a general devise unless a contrary intention appear by the 
 will : Braybroke v. Inskip, 8 Ves. 417, 436 ; Lysaght v. 
 Edwards, 2 Ch. D. 499. The reasoning is the same in 
 the case of a mortgage estate as of a trust estate : Re 
 Bellis, 5 Ch. D. 509. 
 
 "What will prevent the estate from passing : — Wiere 
 
 they do 
 not pass. 
 
 A charge of debts, or of debts and legacies, or of Charge of 
 legacies only, will prevent a bare trust estate from passing ^p**^*^;^""* 
 under a general devise : Roe v. Reade, 8 T. R. 118 ; Re 
 Packman v. Moss, 1 Ch. D. 214 ; Re Bellis, 5 Ch. D. 510; 
 Re Horsfall, M'Cl. & Y. 292 ; Doe v. LigUfoot, 8 M. 
 & W. 553 ; Re Smith, 4 Ch. D. 70 ; but see Re Stevens 
 Will, 6 Eq. 597; Re Brown and Sibly, 3 Ch. D. 156. 
 
 Even if the real estate is subject to a single legacy : Single 
 Hope V. Uddell, 21 Bea. 183. ''^'•°^' 
 
 A trust for sale shews an intention that they shall not Trust for 
 pass : Re Gantley, 17 Jur. 124. 
 
 Or, a devise to uses in strict settlement, or executory Strict 
 devises : Thompson v. Grant, 4 Madd. 438 ; Braybroke v. ^^^~ 
 Inskip, supra,, at p. 434. 
 
 Or, upon charitable trusts : A.-G. v. Vigor, 8 Ves. 276. Charity. 
 
33 
 
 DEVISE OF TRUST ESTATES. 
 
 Tenancy in 
 common 
 with 
 accruer. 
 
 Unascer- 
 tained 
 class. 
 
 Tenacy in 
 common. 
 
 Separate 
 -use. 
 
 Or, if the devise be to tenants in common with accruer 
 upon death under age : Thirtle v. Vaughan, 24 L. T. 5 ; 
 Martin v. Laverton, 9 L. K Eq. 563. 
 
 Or, if the devise be to an unascertained class as tenants 
 in common : Re Finney, 3 Gitf. 465. 
 
 Or, to tenants in common at all : Ite Vallis, Rolls, 22 
 July, 1807. 
 
 Or, semble, where the devise is to a female to her 
 separa,te use: Lindsell v. Thacher, 12 Sim. 178 ; see how- 
 ever Lewis V. Mathews, 2 Eq. 177. 
 
 Where they 
 pass. 
 
 " To the 
 use and 
 behoof. " 
 
 " Own use 
 and bene- 
 fit." 
 
 " Absolute 
 benefit." 
 
 "Sole" 
 use of fe- 
 male. 
 
 " Securi- 
 ties for 
 money." 
 
 Lands con- 
 tracted to 
 be sold, 
 
 But no contrary intention is inferred : — 
 
 From the addition to the general devise of the words 
 " to the use and behoof " : Exp. Brettell, 6 Ves. 577 (as 
 explained by Lord Eldon in Brayhroke v. Inskip, supra). 
 
 Or, " for his own use and benefit :" Bainhridge v. Ash- 
 hurton, 2. Y. & C. Ex. 347; Sharpe v. Sharpe, 12 Jur. 598. 
 
 Of, for his " own absolute use and benefit : " Exp. Shaw, 
 8 Sim. 159. 
 
 Oi^, for the "sole and absolute use and benefit" of a 
 female — " sole " not being held to create a separate use : 
 Lewis V. Mathews, 2 Eq. 177. 
 
 Mortgage estates will pass notwithstanding a charge 
 of debts and legacies if the testator have used words 
 shewing an intention to pass them, as " securities for 
 money :" Re King, 5 De G. & Sm. 647; Knight v. Robin- 
 son, 2 K. & J. 503 ; Rippen v. Priest, 13 C. B. N. S. 308. 
 [Galliers v. Ifoss, 9 B. & C. 267, Silvester v. Jarman, 
 10 Price, 78, and Re Cantley, 17 Jui-. 124 (on this point), 
 are overruled ; see Knight v. Robinson, 2 K. & J. 505.] 
 Or " moneys upon mortgage" : Doe v. Bennett, 6 Exch. 
 892; Re Arrowsmith, 4 Jur. N. S. 1123. 
 
 But a devise including "securities for money" will not 
 pass an estate contracted to be sold : Goold v. Teague, 
 5 Jur. N. S. 116. 
 
 The legal estate in property bound by a valid contract 
 for sale passes under a general devise of real and personal 
 
POWEES OF DEVISEE OF TRUST ESTATES. 23 
 
 estate upon trust for sale and conversion : Wall v. Bright, 
 1 J. & W. 494. [And see Lysaght v. Edwards, 2 Ch. D. 
 499, in -which the reasoning in Wall v. Bright is com- 
 mented on.] 
 
 Of the Execution of the Trust by a Devisee of the 
 Trust Estate. 
 
 Trusts created by a gift to trustees and the survivor Trusts 
 of them, and the heirs, executors, administrators, and ™' ^ 
 
 "assigns" of such survivor, may be effectually executed maybe 
 by a devisee of trust estates under the will of such sur- by sur- 
 vivor : Titky v. Wolstenholme, 7 Bea. 425 ; Hall v. May, ^™'^- 
 3 K. & J. 585 ; but see Ashton v. Wood, 3 Sra. & G. 436. 
 
 The intention of the settlor is in these cases held to be Reasons of 
 sufficiently indicated, that the personal confidence reposed 
 in the trustees shall not be limited to the individuals 
 he has originally selected, by the employment of the word 
 " assigjis : " Titley v. Wolstenholme, supra. 
 
 A power to appoint new trustees in the original settle- Effect of 
 ment does not prevent the application of the rule : Hall appohit'' 
 V. May, supra. ""^^ *™^' 
 
 [Ockleston v. Heap, 1 De G. & Sm. 640, is contra, but ocJdestonv. 
 V.-C. K. Bruce gave no reasons for bis decision.] ^<"^P- 
 
 Trusts created by a gift to trustees, and the survivor of Whei-e 
 them, and the heirs, executors, and administrators {omit- omitted the 
 ting " assigns ") of such survivor cannot be passed by the *™^*|* '^^^' 
 survivor to a devisee of his trust estates : CooJce v. Craiu- ercised by 
 ford, 13 Sim. 91 ; Wilson v. Bennett, 20 L. J. Ch. 279. *^^^^^;- 
 
 In this case .(the principle of which several judges have Eeasonof 
 said ought not to be extended), it seems to have been *^^™le. 
 decided that the effect of the devise was to prevent the 
 trustee's heir from executing the trusts, because the legal 
 estate had passed to the devisee, and to prevent the 
 devisee, on the ground that he was not originally in- 
 
24 
 
 POWERS OF DEVISEE OF TKUST ESTATES. 
 
 Power of 
 sale for 
 trustees, 
 their heirs, 
 executors, 
 or adminis- 
 trators. 
 
 Trusts of 
 leaseholds 
 to trustees, 
 their exe- 
 cutors and 
 administra- 
 tors. 
 
 Simple 
 appoint- 
 ment of 
 "trustees 
 and exe- 
 cutors." 
 
 tended to act as a trustee : Coohe v. Crawford, supra, at 
 p. 98. 
 
 Thus, a power of sale given to trustees, and the sur- 
 vivor or survivors of them, his heirs, executors, or admi- 
 nistrators, cannot be validly exercised by the devisee of 
 the survivor, although he is his heir-at-law : Macdonald 
 V. Walker, 14 Bea. 556. 
 
 Trusts of leaseholds given to trustees, their executors, 
 and administrators, cannot be exercised by a person to 
 whom the trustee bequeaths his trust estates, although 
 such person, with another executor, be also appointed 
 executor : Re Burtt, 1 Drew, 319. 
 
 The survivor of two persons appointed trustees and exe- 
 cutors without a limitation of any estate to them, cannot 
 effectually devise the trust : Mortimer v. Ireland, 11 Jur. 
 721 ; 16 L. J. Ch. 416. 
 
 Devise not 
 hreach of 
 trust. 
 
 A devise of trust estates is not a breach of trust on the 
 part of the devisor ; though if the heir of the devisor is 
 a proper person to perform the trust, and not under dis- 
 ability, such a devise is not advisable : Titley v. Wolsten- 
 holme, 7 Bea. 425 ; but see Cooke v. Crawford, 13 Sim. 98. 
 
CHAPTER VI. 
 
 OF THE STATUTE OF FEAUDS AS IT AFFECTS TRUSTS. 
 
 "Ail declarations or creations of trusts or confidences of 29 Car. 2, 
 any lands, tenements, or hereditaments, shall be manifested ''■ ^' ^' ^" 
 and proved by writing, signed by the party who is by law 
 entitled to declare such trust, or by his last will in writing, 
 or else they shall be utterly void and of none effect": 
 29 Car. 2, c. 3, s. 7. 
 
 Trusts of personal estate are not within the section, and Ti-usts of 
 may be declared or created by parol : Fordyce v. Willis, not^withm 
 3 B. C. C. 587 ; McFadden v. Jenkyns, 1 Hare, 461 ; A«t- 
 Peckhain v. Taylor, 31 Bea. 250. 
 
 As the Statute requires the trust to be only manifested Proof of 
 and proved by writing, any signed document clearly con- ^''^^^"t;* 
 taining the terms of the trust will be sufficient to satisfy 
 the Statute, though such document be not contempora- 
 neous with the actual creation or declaration of trust : 
 Forster v. Hale, 3 Ves. 696 ; 5 Ves. 315 ; Nab v. JVab, 10 
 Mod. 404; Moorecroft v.Dowding, 2 P. W.314; Barkworth 
 V. Young, 4 Dr. 1 ; Smith v. Matthews, 3 D. F. & J. 139. 
 
 The trust when formulated in writing must be clear and Trust mu&t 
 definite, not only as to the property to be affected by it, pjeteiy" 
 but as to the persons to be benefited : Forster v. Hale, declared. 
 supra; Freeman v. Tatham, 5 Ha. 329. 
 
 The cestui que trust is the person by law entitled to Person en- 
 declare the trust : Tierney v. Wood, 19 Bea. 330 : Kron- ^'^'f^ *" 
 
 -n> /• declare 
 
 heim, v. Johnson, 7 Oh. D. 60. trust. 
 
 Copyholds are within the section : Withers v. Withers, Copyhoiiis. 
 Amb. 151 ; Acherley v. Acherley, 7 B. P. C. 273. 
 
26 
 
 STATUTE OP FRAUDS. 
 
 Leaseholds. 
 Crown. 
 
 Charitable 
 trusts. 
 
 Signature 
 of con- 
 nected 
 document. 
 
 Pleading 
 statute 
 against un- 
 lawful 
 trust. 
 
 Statute 
 must be 
 pleaded ; 
 not relied 
 on by de- 
 murrer. 
 
 So also are leaseholds : Forster v. Hale, 3 Ves. 696. 
 
 The Crown is not bound by it: Adlington v. Cann, 3 
 Atk. 146. 
 
 Charitable trusts are within the section : Adlington v. 
 Cann, supra; Loyd v. Spillef, 3 P. W. 344. 
 
 The signature to the required writing may be either of 
 the declaration itself, or of some note in writing forming 
 part of the same transaction: Forster v. Hale, supra; 
 Kronheim v. Johnson, 7 Ch. D. 60 ; and see Caton v. 
 Caton, L. R. 2 H. L. 127. 
 
 If a defendant wishes to establish a conveyance to him 
 upon an illegal or immoral consideration, he cannot claim 
 the benefit of the Statute of Frauds to meet the plaintiff's 
 case that the conveyance was made upon a trust for him : 
 Haigh v. Kaye, 7 Ch. 469 ; following Ghilders v. Childers, 
 1 D. & J. 482 ; Lincoln v. Wright, 4 D. & J. 16 ; Davies v. 
 Otty, 35 Bea. 208 ; and see Secret Trusts, post, p. 79. 
 
 The Statute of Frauds must now be pleaded under 
 Order XIX. r. 23. It cannot be raised by demurrer : 
 Clarke v. Callow, 46 L. J. Q. B. 53 ; Catling v. King, 
 5 Ch. D. 660 ; Morgan v. Worthington, 38 L. T. N. S. 443. 
 
CHAPTER VII. 
 
 OF VOLUNTARY TRUSTS BY TRANSFER OR DECLARATION. 
 
 In order to make a voluntary settlement valid and Modes of 
 effectual the settlor must have done everything, which p^j^ec"^ 
 according to the nature of the property, was necessary to voluntary' 
 be done in order to transfer the property and render the 
 settlement binding upon him. He may do this by actu- 
 ally transferring the property to the persons for whom he 
 intends to provide, and the provision will then be effectual 
 or it will be equally effectual if he trahsfers the property 
 to a trustee for the purposes of the settlement, or declares 
 that he holds it in trust for those purposes ; and if the 
 property be personal, the trust may be declared either in 
 writing or by parol (see ante, p. 25) ; but in order to 
 render the settlement binding, one or other of the above 
 modes must be resorted to ; for there is no equity to 
 perfect an imperfect gift : Milroy v. Lord, 4 D. F. & J. 
 274 ; Warriner v. Rogers, 16 Eq. 340 ; Richards v. Del- 
 bridge, 18 Eq. 11; Heartley v. Nicholson, 19 Eq. 233; and 
 see note to Ellison v. Ellison, 1 W. & T. L. C. Eq. 282, 
 et seq. Richardson v. Richardson, 3 Eq. 686, and Morgan 
 V. Malleson, 10 Eq. 475, are disapproved in the above 
 cases. 
 
 If the settlement is intended to be effectuated by one Imperfect 
 of the modes above referred to, the Court will not give aettlem'^^t 
 effect to it by applying another of those modes. If it is not con- 
 intended to take effect by transfer, the Court will not declaration 
 hold the intended transfer to operate as a declaration of "* *'^"^*- 
 trust, " for then every imperfect instrument would be 
 made effectual by being converted into a perfect trust " : 
 
28 
 
 VOLUNTARY TRUSTS — DECLARATIONS OF TRUST. 
 
 Milroy v. Lord, supra ; followed in Warriner v. Rogers, 
 Richards v. Delhridge, and Heartley v. Nicholson, supra. 
 
 Mode of 
 making 
 complete 
 legal trans- 
 fer. 
 
 Voluntai7 
 settlement 
 of equit- 
 able estate. 
 
 Trust of 
 equitable 
 reversion. 
 
 Of interest 
 under 
 agreement 
 for lease. 
 
 Notice. 
 
 Communi- 
 cation to 
 cestui que 
 trust. 
 
 Acceptance 
 by original 
 trustees of 
 new trust. 
 
 In accordance with the doctrines stated above it is 
 necessary in each case to consider by what means a com- 
 plete legal transfer may be made, as to which see Parnell 
 V. Hingston, 3 Sm. & G. 347 ; and May on Fraudulent 
 Conveyances, p. 380, et seq.; Byles on Bills, 5th ed. 1603 ; 
 and see Wheatley v. Purr, I Keen, 551 ; Stapleton v. 
 Stapleton, 14 Sim. 180 ; Moore v. Barton, 4 De G. & Sm. 
 517; Gee v. Liddell, 35 Bea. 621, in which voluntary trusts 
 were under the circumstances considered, by the complete- 
 ness of the transactions, to have been established. 
 
 It is now decided that a voluntary settlement of the 
 equitable estate is effectual as giving a right to the as- 
 signee to enforce it by obtaining the legal estate from the 
 original trustees : Kekewich v. Manning, 1 D. M. & G. 187 ; 
 Sloane v. Gadogan, Sugd. V. & P. App. 26, 9th ed. ; Gilbert 
 V. Overton, 2 H. & M. 110 ; Tierney v. Wood, 19 Bea. 330 ; 
 Kronheim v. Johnson, 7 C. D. 60. 
 
 A trust may be declared of an equitable reversionary 
 interest : Sloane v. Gadogan, Sugd. V. & P. App. 26, 
 9th ed. 
 
 Or of the lessee's interest under an agreement for a 
 lease to be granted under a building agreement, though 
 he may not be entitled to a lease at the date of the settle- 
 ment : Gilbert v. Overton, 2 H. & M. 110. 
 
 The title of the volunteers is complete without notice : 
 Fortescue v. Barnett, 3 M. & K. 36 ; Pearson v. Amicable 
 Assurance Off., 27 Bea. 229 ; Justice v. Wynne, 12 Ir. 
 Ch. R. 299. 
 
 It is not necessai-y to the binding effect of the trust 
 that it should be communicated to or accepted by the 
 volunteer : Re Way, 2 D. J. & Sm. 365 ; see Lambe v. 
 Ortou, 1 Dr. & Sm. 125 ; Tate v. Leithead, Kay, 658. 
 
 If the owner of the equitable estate directs his trustees 
 to hold for others than himself, and the trustees accept 
 such new trusts, and act upon them, the volunteers' title 
 
IMPERFECT VOLUNTARY ASSIGNMENTS. 29 
 
 is good : Rycroft v. Christy, 3 Bea. 238 ; McFadden v. 
 Jenkyns, 1 Ha. 458, 1 Ph. 153. 
 
 The following are instances in which the assignment Examples 
 was held to be imperfect and no declaration of trust, fectual 
 on the grounds above stated, inferred by the Court : — foiuntary 
 
 ° ■' trusts : 
 
 An owner of shares endorsed on the certificates the Ind'orse- 
 words " I hereby assign, &c.," to others, but no transfer was ™o™ansfer. 
 executed, and he was held to have a locus pcenitenticB so 
 long as the gift was thus incomplete: Antrohus v. Smith, 
 12 Ves. 39. 
 
 So also a deed assigning shares and not complying with Imperfect 
 the requirements for their transfer was inoperative : Dil- transfer^ 
 Ion V. Cfoppin, 4 M. & Cr. 647 ; Searle v. Law, 15 Sim. 
 95 ; Milroy v. Lord, 4 D. F. & J. 264 ; Moore v. Moore, 
 18 Eq. 474. 
 
 A power of attorney given to the trustee to transfer does Power of 
 not help the case unless he acts upon it by transferring " °™^'^' 
 to himself : Milroy v. Lord, supra. 
 
 The indorsement of an unsealed assignment on a bond Bond as- 
 is ineffectual to pass it as a voluntary gift : Edwards v. indorse- 
 Jones, 1 M. & Cr. 226. "'^'^*- 
 
 So an indorsement on a lease of the words, " This deed Indorse- 
 and all thereto belonging I give, &c.," and signed, was held lease, 
 not to pass the leasehold and stock-in-trade, as the intend- 
 ing donor had not absolutely parted with his interest or 
 effectually changed his right and put the property out of 
 his power : Richards v. Belbridge, 18 Eq. 11. 
 
 "Where a cheque was given to one in trust for another. Cheque, 
 with a verbal direction that the amount was to be in trust 
 instead of a legacy given by will to the proposed cestui 
 que trust, the declaration was held to be inoperative : 
 Hughes v. Stubbs, 1 Hare, 476. 
 
 Similarly where the cheque was given by the owner to 
 his young child with a declaration before witnesses, but 
 was afterwards retained by the owner till his death : 
 Jones V. Lock, 1 Ch. 25. 
 
30 
 
 VOLUNTARY TRUSTS — DECLARATIONS OF TRUST. 
 
 Title deeds. 
 
 Deed-poll 
 instead of 
 convey- 
 ance. 
 
 Interest in 
 mortgage. 
 
 Trusts are 
 not finally 
 declared. 
 
 Voluntary 
 promise. 
 
 Voluntary 
 covenant to 
 transfer 
 stock or 
 
 Covenant 
 to sur- 
 render 
 copyholds. 
 
 Where a paper was put into a box containing title 
 deeds, the key being retained by the owner, the property 
 affected to be passed by the document was held not to be 
 impressed with any sufficient trust : Warriner v. Rogers, 
 16 Eq. 353. 
 
 A deed poll professing to be a complete gift of land by 
 a husband to his wife and not a declaration of trust, is 
 not supported as a declaration of trust : Fi^ice v. Price, 
 14 Bea. 598. 
 
 The interest under a mortgage deed cannot be trans- 
 ferred by the mortgagee to a volunteer without a transfer 
 of the mortgaged property : Woodford v. Gharnley, 28 
 Bea. 96. 
 
 So long as the trusts are not specifically and finally 
 indicated, though a legal conveyance or assignment may 
 have been executed, the gift is revocable : Re Sykes, 2 J. 
 & H. 415. 
 
 A volunteer has no equity to enforce a mere voluntary 
 promise to assign against the assets of the person who 
 made the promise : Marler v. Tommas, 17 Eq. 8, 13. 
 
 A voluntary covenant to transfer stock is a mere imper- 
 fect gift which equity will not assist : Ellison v. Ellison, 
 6 Ves. 656, 662 ; Ward v. Audland, 8 Sim. 571, 576. So 
 is a voluntary covenant to transfer shares : Dillon v. Cop- 
 pin, 4 M. & Cr. 647, 671 ; and see Exp. Pye, Exp, Dubost, 
 18 Ves. 149 ; Payne v. Mortimer, 4 D. & J. 447 ; Dill- 
 wyn V. Llewelyn, 4 D. F. & J. 517, as to ex post facto 
 consideration. 
 
 Or a voluntary covenant to surrender copyholds not 
 followed by a legal surrender : Jefferys v. Jefferys, Cr. & 
 Ph. 138 ; Bening v. Ware, 22 Bea. 184 ; Steele v. Waller, 
 28 Bea. 466 ; Tatham v. Vernon, 29 Bea. 604 ; Bizzey v. 
 Flight, 24 W. R. 957. 
 
 The assignment is upheld as a trust if the assignor has 
 
 Where as- 
 done all he done all that has been required of him to perfect it, and 
 can. ^jj^g upon a voluntary trust of a policy, the neglect of the 
 
 trustees to give notice of the assignment to the office will 
 
IMPEEfECT VOLXJNTARY ASSIGNMENTS. ~ 31 
 
 not affect the title of the cestuis que trust, though the 
 omission might enable the settlor to deal otherwise with 
 the policy : Fortescue v. Barnett, 3 M. & K. 36 ; and see 
 Hogarth v. Phillim, 4 Dr. 360. 
 
 Volunteers, or their trustees for them, cannot compel No equity 
 the settlor to perfect an imperfect voluntary settlement : settlor to 
 Lee V. Henley, 1 Vern. 37 ; Williamson v. Oodrington, perfect ; 
 1 Ves. Sen. 511; Antrohus v. Smith, 12 Ves. 47; Fletcher 
 V. Fletcher, 4 Ha. 74 ; Dening v. Ware, 22 Bea. 190 ; 
 Lister v. Hodgson, 4 Eq. 33. 
 
 Nor can they compel his representatives to give effect or his re- 
 to it : Antrohus v. Smith, supra ; Marler v. Tommas, ^tcT-' ^' 
 17 Eq. 12. 
 
 Where money had been handed to another with a Deed not 
 proved intention that it should be settled by deed, the intentioif 
 Court finding that the deed was drawn in a form contrary 
 to such intention, ordered the cancellation of the deed 
 and repayment of the money in order to avoid the neces- 
 sity of another action for it at Common Law : Lister v. 
 Hodgson, 4 Eq. 36 ; and see Phillipson v. Kerry, 32 
 Bea. 628 ; Manning v. Gill, 13 Eq. 485. 
 
 If the deed does not carry into effect the intention of 
 the parties it can be reformed only by consent : Phillip- 
 son v. Kerry, ante ; Lister v. Hodgson, supra. 
 
 A letter stating that property is delivered to another as Letter 
 a gift is of no avail if the gift is not perfected by a legal ^^^'i'™* 
 
 o o 1 ^ ./ o transier. 
 
 transfer of it — e. g., where the property is shares standing 
 in the alleged donor's name, and they remain in his name 
 till his death : Weale v. Ollive, 17 Bea. 252 ; Heartley v. 
 Nicholson, 19 Eq. 233. 
 
 Nor will a letter, expressing approval of a proposal that 
 the writer should give a named sum to another, amount 
 to a declaration of trust without anything further : Cotteen 
 V. Missing, 1 Mad. 176. 
 
 If the letter operates as a complete alienation, e. g., as Letter act- 
 an appointment in writing under a power, it may operate pofntment 
 as a declaration of trust : Wilcoclcs v. Hannyngton, 5 Ir. ™ writing. 
 Ch, R. 38 ; and see Woodroffe v. Johnston, 4 I. Ch. R. 319. 
 
32 
 
 VOLUNTAUY TRUSTS — DECLARATIONS OF TRUST. 
 
 Effect of 
 power of 
 attorney. 
 
 Trust for 
 wife. 
 
 Husband 
 to clearly 
 become 
 trustee for 
 separate 
 use. 
 
 How trust 
 arises. 
 
 Consent in 
 Court is 
 revocable. 
 
 Settlement 
 by feme 
 
 Meritorious 
 considera- 
 tion. 
 
 Absence of 
 considera- 
 
 As to the effect of signing such a letter in the presence 
 of a witness, see Re Mills, 7 W. R. 372. 
 
 Where an annuity was directed to be purchased for 
 another, and in consequence of the intended annuitant 
 being insane it was purchased in the name of the intend- 
 ing donor, who finding it so placed, gave a power of at- 
 torney to pay it over to the donee, the donor was held to 
 be a trustee of it for the donee : Exp. Pye, 18 Ves. 140. 
 
 A husband may be a trustee for his wife in respect of 
 a gift by him to her, though delivery is impossible, as the 
 subject of the gift remains in his legal possession : Grant 
 V. Grant, 34 Bea. 623 ; and see Lucas v. Lucas, 1 Atk. 
 271 ; Walter v. Hodge, 2 Sw. 104 ; McLean v. Long- 
 lands, 5 Ves. 78 ; Moore v. Moore, 18 Eq. 483 ; Ashworth 
 V. Outram, 5 Ch. D. 923. 
 
 But he must, by unequivocal evidence, be proved to 
 have made the gift so as to become a trustee for the 
 separate use of the wife : Mews v. Mews, 15 Bea. 533. 
 
 Where a man entitled to a promissory note took a new 
 one in the names of himself and wife, and directed the 
 amount to be so transferred in the debtor's books, a 
 perfect trust was held to have been made by him : Gos- 
 ling V. Gosling, 3 Dr. 335. 
 
 The consent of a married woman to a transfer of a fund 
 in Court to her husband is a mere intention to give, and 
 not a declai'ation of trust, and is revocable before the 
 transfer is completed : Penfold v. Mould, 4 Eq. 562. 
 
 A voluntary settlement and transfer by a, feme sole for 
 herself till marriage (if any) with further trusts after mar- 
 riage, is irrevocable, though she do not marry the then 
 intended husband j McDonnell v. Hesilrige, 16 Bea. 846. 
 
 The fact of meritorious consideration will give no greater 
 validity to a postnuptial contract : Holloway v. Heading- 
 ton, 8 Sim. 324 ; Jefferys v. Jefferys, Or. & Ph. 141 ; Price 
 V. Price, 14 Bea. 598. Colman v. Barrel, 1 Ves. Jun. 50 ; 
 Ellis V. Nimmo, LI. & G., Sugd., 333, and other cases to 
 the like effect, are not now considered good law. 
 
 Though a settlement of interests in remainder in 
 
afifected by 
 mixing 
 
 VOLUNTAKY TRUSTS — RETAINING CONTROL. 33 
 
 favour of persons not within the marriage consideration tionwith 
 may be voluntary, it is effectual as against a subsequent H g^bse-^ 
 settlement on the second marriage of the settlor : Keke- quent 
 wich V. Manning, 1 D. M. & G. 176. ^'^ ™^° ' 
 
 As to family arrangements where no apparent cousidera- Family 
 tion exists, see Miller v. Harrison, I. E. 5 Eq. 324, and ments^^" 
 note to Stapilton v. Stapilton, 2 W. & T. L. C. 836. 
 
 After a valid declaration of trust, the fact tliat the trust Trust un- 
 fund is found at the settlor's death mixed up with his own 
 moneys does not affect the validity of the trust : Thorpe f™'^ 
 V. Oiuen, 5 Bea. 224. 
 
 A declaration of trust of personalty may be made by Parol 
 parol : McFadden v. Jenhjns, 1 Ph. 153, and see Exp. *'^'^*^' 
 Pije, 18 Ves. 140. 
 
 But there must be a clear declaration of intention to 
 become an accounting party as a trustee : Bipple v. Corles, 
 11 Ha. 183. 
 
 A mere parol declaration, therefore, that the owner will 
 distribute property among others, or a mere promise to 
 divide the property, without declaring that he will hold in 
 trust for them is insufficient : ibid. 
 
 And the Court will not act on mere loose conversations 
 the accuracy of which cannot be distinctly proved -.Paterson 
 V. Murphy, 11 Ha. 92 ; Peckham v. Taylor, 31 Bea. 2.50. 
 
 If the settlor shews no intention of keeping a control Ketaining 
 over the settled property otherwise than as a trustee for °°g'™J.Q. 
 the objects of his bounty, the trust will be effectual : Exp. perty sub- 
 Pye, 18 Ves. 140 ; Wheatley v. Purr, 1 Keen, 561 ; Van- Jnist." 
 denberg v. Palmer, 4 K. & J. 204 ; and see Gaskell v. 
 Gaskell, 2 Y. & J. 502, explained in Vandenberg v. 
 Palmer, supra ; but see Forbes v. Forbes, 6 W. E. 92. 
 
 A provision allowing the settlor to draw on funds sub- ' 
 ject to the trust, or one declaring the property to be 
 subject to the order of his executors, was construed as 
 being intended only as a means for making the property 
 available for the beneficiaries : Vandenberg v. Palmer, 
 supra. * 
 
u 
 
 VOLUNTAEY TEUSTS — DEOLAEATIONS OF TRUST. 
 
 Informal 
 testament- 
 ary gift no 
 trust. 
 
 Death of 
 settlor 
 hefore 
 trust per- 
 fected. 
 
 Effect of 
 power of 
 attorney. 
 
 After death 
 of donor. 
 
 Collateral 
 security. 
 
 Settlor 
 
 retaining 
 
 deed. 
 
 But where no communication of the trust had been 
 made, and there was no antecedent agreement or promise, 
 an intention was inferred that no trust was to be created 
 to take effect until after the settlor's death ; and as he 
 retained the dominion of the property, the trust was held 
 to be altogether negatived : Hughes v. Stubbs, 1 Ha. 476 ; 
 Smith V. Warde, 15 Sim. 56 ; but see Bentley v. Mackay, 
 15 Bea. 12. 
 
 If the gift is of an informal testamentary character not 
 amounting to a donatio mortis causa (as to which see 
 Ward V. Ttorner, 1 W. & T. L. C. p. 983 et seq.), the Court 
 will not give effect to it by construing it as a declaration 
 of trust : Warrjner v. Rogers, 16 Eq. 353 ; see Re Mills, 
 7 W. E. 372 ; Johnson v. Ball, 5 De G. & Srn. 85. 
 
 A mere memorandum of intention "to leave at my 
 death " cannot be treated as a declaration of trust : Re 
 Glover, 2 J. & H. 186. 
 
 Even if a perfect voluntary settlement is in course of 
 being prepared, it will be void if the settlor dies before 
 actual completion : Coningham v. Plunkett, 2 Y. & C. C. 
 C. 245 ; Lambert v. Overton, 13 W. E. 227. 
 
 Where the relation of trustee and cestui que trust is 
 clearly established, a power of attorney may be a sufficient 
 declaration of the trust : Exp. Pye, 18 Ves. 140 : ante, 
 pp. 29, 32 ; and see Blalcely v. Brady, 2 Dr. & Walsh, 311, 
 328. 
 
 As to the effect of acting upon a power of attorney 
 after the death of the donor, with reference to the com- 
 pletion of the trust, see Kiddill v. Farnell, 3 Sm. & G. 
 428 ; Farnell v. Hingston, 3 Sm. & G. 387 ; Peckham v. 
 Taylor, 31 Bea. 251 ; and see 22 & 23 Vict. c. 35, s. 26. 
 
 Handing over a promissory note with title-deeds to 
 secure the sum is a good declaration of a trust verbally 
 declared at the time : Arthur v. Clarkson, 35 Bea. 458. 
 
 The retention of the deed by the settlor does not alter 
 its binding effect : Antrobus v. Smith, 12 Ves. 46 ; Shane 
 V. Gadogan, Sugd. V. & P. App. 26, 9th ed. ; Fletcher v. 
 Fletcher, 4 Ha. 67 ; Re Way, 2 D. J. & Sm. 365 ; and see 
 
VOLUNXAllY TRUSTS UNDER STATUTES OP ELIZABETH. 35 
 
 the cases cited in Dillon v. Goppin, 4 M. & Cr. at p. 
 661. 
 
 And if the deed comes to the hands of the settlor's Production 
 executors, they may be compelled to produce it : Fletcher v. ^l^^^' 
 Fletcher, swpra; and see Brackenhury v. Brackenhury, 2 
 J. & W. '391 ; Cecil v. Butcher, ibid. 565, and the cases 
 there cited. 
 
 If the deed gets back into the hands of the settlor he Destruc- 
 cannot revoke it by destroying the seals : Smith v. Lyne, ^^^^^ 
 2 Y. & C. C. C. 345. 
 
 A subsequent" will is no satisfaction of the gift under Satisfas- 
 the deed : lb. ; and see Page v. Home, 11 Bea. 233. ^^"''^ 
 
 The accidental return of the fund into the hands of Reium of 
 the settlor does not enable him to derogate from the *™f*? 
 
 ° settlor s 
 
 trust : Browne v. Cavendish, 1 J. & L. 637. hands. 
 
 Where the declaration of trust has been of the equit- Settlor get- 
 • able estate only, the subsequent getting in of the legal ie°fi" . 
 estate by the settlor does not avoid the trust : Ellison v. tate. 
 Ellison, 6 Ves. 656 ; Gilbert v. Overton, 2 H. & M. 117 ; 
 but see Bridge v. Bridge, 16 Bea. 315, 327. 
 
 By 13 Eliz. c. 5, settlements of realty or personalty Voluntary 
 made with an intention to defraud creditors are made ances un- 
 void, and see the 91st s. of the Bankruptcy Act, 1869 ^er 13 
 (32 & 33 Vict. c. 71). See the cases on these Acts col- 
 lected in the note to Ellison v. Ellison, 1 W. & T. L. C. 
 318, et seq., and commented on in May on Fraudulent 
 Conveyances, Pt. II., p. 17, et seq. ; Lewin p. 67, et seq. 
 
 Under s. 1 of 27 Eliz. c. 4, fraudulent conveyances of Under 27 
 land are made void as against subsequent bond fide pur- 
 chasers for value. 
 
 The absence of consideration is taken to be comprised "Fraud." 
 in the term " fraudulent," though the Act does not specially 
 refer to voluntary conveyances in so many words : Doe 
 V. Manning, 9 East, 59 ; Doe v. Rusham, 17 Q. B. 
 723.; Willats v. Busby, 5 Bea. 193. 
 
 But the extent of the value given is not taken into Adequate 
 account, and the fact that some value was given may be 1°^^] ®™" 
 proved aliunde : Pott v. Todhunter, 2 Coll. 76 ; Townend 
 
 D 2 
 
36 
 
 VOLUNTAEY TEUSTS — EEMEDIES. 
 
 Good con- 
 sideration. 
 
 Ex post 
 facto con- 
 sideration. 
 
 Puisne 
 mort- 
 gagees. 
 
 judgment 
 creditors. 
 
 Chattels 
 not within 
 Act. 
 
 V. Tolcer, 1 Ch. 446 ; Bayspoole v. Collims, 6 Ch. 228 ; 
 Price V. Jenkins, 5 Ch. D. 619, as to consideration of 
 leasehold covenants. 
 
 Meritorious consideration does not exempt the prior 
 voluntary deed from the operation of the Act : Pulvertoft 
 V. Pulvertoft, 18 Ves. 84. 
 
 And it seems that ex post facto consideration may 
 support the deed if clearly connected with its purpose : 
 Guardian Assurance v. Avonmore, G I. R. Eq. 391 ; and 
 see George v. Milhanlce, 9 Ves. 193. 
 
 Subsequent mortgagees are within the benefit of the 
 Act : Dolphin v. Ayhvard, L. R. 4 H. L. 486. 
 
 So are lessees : Doe v. Hopkins, cited 9 East, 70. 
 
 But not judgment creditors : Dolphin v. Aylward, 
 supra. 
 
 Chattels are not within the Act of Elizabeth : Jones 
 V. Croucher, 1 S. & S. 315 ; lIcDonnell v. Hesilrige, 16 
 Bea. 346. 
 
 See further on this Act, May on Fraudulent Convey- 
 ances, Pt. III., p. 169, et seq. 
 
 Intended 
 beneficia- 
 :ies have 
 no remedy 
 against 
 property. 
 
 Sale by 
 heir. 
 
 Enforcing 
 sale by and 
 against 
 settlor. 
 
 The beneficiaries under a voluntary settlement have no 
 remedy either against the estate or the purchase-money : 
 Williamson v. Godrington, 1 Ves. Sen. 516 ; Dahing v. 
 Whimper, 26 Bea. 568 ; and see Pulvertoft v. Pulver- 
 toft, 18 Ves. 91 ; Townend v. Toker, 1 Ch. 446. 
 
 The heir or devisee of the settlor cannot avoid the 
 settlement by a sale : Lewis v. Rees, 3 K. & J. 132 ; Doe 
 V. Rusham, 17 Q. B. 723. 
 
 The settlement being good against the settlor until 
 sale, he cannot enforce specific performance of a contract 
 for sale {Smith v. Garland, 2 Mer. 122 ; Johnson v. Le- 
 gard, T. & R. 294 ; Clarke v. Willott, L. R. 7 Exch. 313 ; 
 Rosher v. Williams, 20 Eq. 210) ; except under very 
 special circumstances, such as twenty years' undisturbed 
 possession : Peter v. Nicolls, 11 Eq. 391. 
 
 But it may be enforced as against him : Daking v. 
 Whimper, 26 Bea. 568 ; Rosher v. Williams, 20 Eq. 210. 
 
CHAPTER VIII. 
 
 OF IREEVOCABLE AND REVOCABLE TRUSTS FOR CREDITORS. 
 
 I. — Irrevocable Trusts for Creditors. 
 
 In order to make the trust for creditors irrevocable it How credi- 
 is not absolutely necessary that the creditor should execute get benefit 
 the deed ; if he has assented to it or acquiesced in it or "* *''"^'- 
 acted under its provisions, and complied with its terms, 
 and the trustees or other creditors have expressed no dis- 
 satisfaction, he becomes a cestui que trust and is entitled 
 to the benefit of the deed : Field v. DonougJimore, 1 Dr. 
 & War. 227; Biron v. Mount, 24 Bea. 642; and see 
 Nicholson v. Tutin, 2 K. & J. 18. 
 
 He then is entitled to all the remedies for enforcing the Eight of 
 trust against the trustee according to the terms of the '=■^^'1'*''''*° 
 
 o ° entorce it. 
 
 deed : Cosser v. Radford, 1 D. J. & Sm. 585. 
 
 But it is not enough for him to stand by and take no Passive 
 part in the matter : Biron v. Mount, 24 Bea. 642. acceptance 
 
 mi • T-1T 1 T T f T insufficient. 
 
 The time limited by the deed lor the creditors to come rrij^ef^^. 
 
 in is not of the essence of the deed : Bunch v. Kent, 1 coming in 
 
 Vern. 260 ; Spottisiuoode v. Stockdale, G. Coop. 102 ; Wat- es°sence of 
 
 son V. Knight, 19 Bea. 869; Whitmore v. Turquand, 3 ^leed. 
 D. F. & J. 110 ; Re Baher, 10 Eq. 554. 
 
 Therefore creditors who have afterwards acceded, and Subsequent 
 
 have not acted in any way inconsistently with their claim a<=<=ession. 
 to have the benefit of the deed, are entitled to that benefit : 
 ibid. 
 
 But they are excluded if they actively refuse and do not Active un- 
 
 retract their refusal within the specified time : Johnson refusal 
 V. Kershaw, 1 D. G. & Sm. 260 ; 
 
38 
 
 lEREVOCABLE TEUSTS FOK CKEDITOES. 
 
 Delay and 
 
 adverse 
 
 claim. 
 
 Accession 
 mxist be 
 before 
 bank- 
 ruptcy. 
 
 Implied 
 accession. 
 
 Power of 
 trustee to 
 enlarge 
 time. 
 
 Considera- 
 tion of 
 covenant 
 not to sue. 
 
 Wtere 
 trustee is a 
 creditor. 
 
 Trustee has 
 no right to 
 retainer. 
 
 Trustee 
 solicitor to 
 debtor and 
 creditors. 
 
 Or if they have delayed, and set up an adverse or in- 
 consistent claim : Watson v. Knight, 19 Bea. 369 ; Bush 
 V. Shipman, 14 Sim. 239 ; Field v. Donoughmore, 1 Dr. 
 & War. 227. 
 
 The object of the deed being to prevent bankriiptcy 
 they cannot have the beoefit of it if they have not acceded 
 to it before the debtor's bankruptcy : Biron v. Mount, 24i 
 Bea. 642. 
 
 In general, no person can be considered to have im- 
 pliedly acceded to the deed, who has not put himself in 
 precisely the same situation with regard to the debtor as 
 if he had executed it, the principle of the rule being that 
 the creditor claiming the benefits of the deed must also 
 bear its obligations : Forbes v. Limond, 4 D. M. & G. 315. 
 
 If the trustees have power to enlarge the time, they 
 should do so, if necessary to permit those to execute it 
 who from absence abroad or other cause are unable to 
 execute it Avithin the earlier period : Raworth v. Parker, 
 2 K. & J. 163. 
 
 It seems that the consideration of a covenant not to sue 
 for a given time does not prevent non-executing creditors 
 from coming in after the peiiod limited by the deed : Re 
 Baber, 10 Eq. 554, in which Lane v. Husband, 14 Sim. 
 656, contra, is disapproved. 
 
 Where the trustee under the deed is also beneficially 
 entitled, no express assent is necessary, and the deed is 
 irrevocable : Siggers v. Evans, 5 E. & B. 867 ; Gurney 
 V. Oranmore, 5 Ir. Ch. R. 436 ; S. C. nom. Montefiore v. 
 Browne, 7 H. L. C. 241 ; Wilding v. Richards, 1 Coll. 655 ; 
 and see Lawrence v. Campbell, 7 W. R. 170. 
 
 Where the trustee under a devise to pay debts is him- 
 self a creditor he has no right of retainer whether he is 
 also executor or not : Bain v. Sadler, 12 Eq. 570. 
 
 If the deed be in consideration of antecedent specific 
 debts and provides for their payment by a trustee who is 
 solicitor to the creditors as well as to the debtor, the trust 
 is still good, though the creditors do not execute : Wilding 
 V. Richards, 1 Coll. 661. 
 
TEUSTS FOE CREDITORS — BARRED DEBTS. 39 
 
 A trust deed by a debtor for payment of "moneys What debts 
 owing by him " extends only to debts contracted at the deed, 
 time of making the deed ; Purefoy v. Purefoy, 1 Vern. 
 28. 
 
 Debts barred by time before the death of the testator Debts not 
 are not revived by a will providing for the payment of tr^t fo/*^ 
 debts generally: Fergus v. Gore, 1 Sch. & L. 109; Burke payment. 
 V. Jones, 2 V. & B. 275 ; Hughes v. Wynne, T. & R. 307; 
 and see Mendell v. Carpenter, 2 Y. & J. 484. 
 
 And where the trust provides for the debts of another, 
 none that were barred at the time of such debtor's death 
 are payable : O'Connor v. Haslam, 5 H. L. C. 170 ; and 
 see Joel v. Mills, "7 Jur. N. S. 389. 
 
 Time does not run after the death : Hargreaves v. Time stops 
 Michell, 6 Mad. 326 ; Crallan v. Oulton, 3 Bea. 1. ^* '^^''*- 
 
 A debt which at the death of the testator is not barred 
 may afterwards become so, notwithstanding a trust, if the 
 creditor does not pursue his remedy industriously : Scott 
 V. Jones, 4 CI. & F. 382. 
 
 A direction for payment of debts in a will of personal Time runs 
 estate will not stop the running of time after the death, <,£ execu- 
 because it is the duty of executors to pay them : Scott v. ^^^ *° P^y- 
 Jones, 4 CI. & F. 382 ; Freahe v. Cranefeldt, 3 M. & Cr. 
 499. Whether the same is the case where the testator 
 charges all his estate both real and personal, see Moore v. 
 Fetchell, 22 Bea. 172, where, however, Scott v. Jones was 
 not cited. 
 
 Specific debts barred or released at the date of the will Direction 
 are revived by a direction to pay them, but the creditor barred 
 can only claim as a voluntary legatee where the debt has <^^^*^ '' 
 been released : Coppin v. Coppin, 2 P. W. 295 ; William- 
 son V. Naylor, 3 Y. & C. Ex. 208. 
 
 Such debts, in case of the previoiis death of the creditors, Nature of 
 
 do not lapse as legacies, but remain debts, though subject title in 
 
 to legacy duty : Foster v. Ley, 2 Bing. N. C. 269 ; Philips ^°<=' "^^^^ : 
 
 V. Philips, 3 Hare, 281 ; Be Sowerhy, 2 K. & J. 630 ; 
 
 T^irner v. Martin, 7 D. M. & G. 429. 
 
 In these cases a receipt for joint debts due to partners o£ debts to 
 
 partners ; 
 
40 
 
 IKREVOCABLE TRUSTS FOR CREDITORS. 
 
 unclaimed 
 debt. 
 
 Creditors 
 to prove 
 before exe- 
 cuting 
 deed. 
 
 After 
 adminis- 
 tration by 
 Court. 
 
 Power of 
 selection. 
 
 Secret 
 preference. 
 
 Creditor's 
 deed made 
 ■witb notice 
 of pro- 
 
 Secured 
 creditors. 
 
 New trus- 
 tees. 
 
 may be given by the surviving partner : Philips v. 
 Philips, supra. 
 
 And if the debt be unclaimed, the fund set apart for 
 it falls into the residue : ibid. 
 
 Trustees of creditors' deeds are empowered to require 
 creditors to prove their debts before they execute ; but 
 having once allowed the creditor to execute for a certain 
 sum, they cannot afterwards contest the debt, except in 
 an action to cancel or rectify the execution of the deed 
 on the ground of deceit, fraud, or the like : Lancaster v. 
 Mce, 81 Bea. 325. 
 
 After an administration by the Court, trustees to pay 
 debts may not repossess themselves of the estate to pro- 
 vide for a further claim, however liable the legatees may 
 be to pay it : Underwood v. Hatton, 5 Bea. 36. 
 
 But the Court will not control the exercise of a power 
 of selection given to the trustees : Wain v. Egmont, 2 M. 
 & K. 445 ; Brever v. Mawdesley, 16 Sim. 511. 
 
 As to giving a secret preference to one creditor over 
 others, see Mare v. Sandford, 1 Giff. 288 ; McKeivan v. 
 Sanderson, 15 Eq. 229 ; 20 Eq. 65. 
 
 It is not an objection to the irrevocability of the deed 
 that it is executed just before proceedings taken by one 
 of the creditors : Maclcinnon v. Stevjart, 1 Sim. N. S. 76. 
 
 In the absence of a provision to the contrary, a secured 
 creditor, unless he gives up his security, must have it 
 valued or realised, and can only prove for the deficiency 
 in accordance with the rules of bankruptcy : Judicature 
 Act, 1875, s. 10. 
 
 The Court has jurisdiction under s. 82 of the Trustee 
 Act, 1850, to appoint new trustees of a creditor's deed : 
 Re Price, 6 Eq. 460 ; Re Raphael, 9 Eq. 233 ; Re Denis- 
 thorpe, 10 Ch. 55. 
 
 II. — Revocable Trusts for Creditors. 
 
 An assign- An assignment to trustees for creditors uncommunicated 
 uncommu- *° them, and unexecuted by them, though they be made 
 nicated and 
 
EEVOCABLE TEUSTS ,FOR ORKDITORS. 41 
 
 parties to the deed, no action having been taken in the ""* acted 
 performance of the trust, is a revocable instrument con- 
 strued as being purely voluntary or for the greater con- 
 venience of the settlor himself : Wallwyn v. Coutts, 3 Mer. 
 707 ; Garrard v. Lauderdale, 3 Sim. 1 ; 2 R. & M. 451 ; 
 Bill V. Cureton, 2 M. & K. 511 ; Acton v. Woodgate, 2 M. 
 & K. 492 ; Ravenshaw v. Hollier, 7 Sim. 3 ; Gibbs v. 
 Glamis, 11 Sim. 584 ; Steele v. Murphy, 3 Moore, P. C. 
 445 ; Law v. Bagwell, 4 Dr. & W. 398 ; Smith v. Keating, 
 6 C. B. 136 ; Glegg v. Rees, 7 Ch. 71 ; Henriques v. 
 Bensusaii, 20 W. R. 350; Johns v. James, 8 Ch. D. 
 744. 
 
 Where there is to be no performance of the trust with- Where 
 out the previous request of the debtor the rule applies ^^^ ^^ g^.^ 
 with even greater force : Evans v. Bagwell, 2 C. & L. without 
 
 . consent of 
 
 Ol2. debtor. 
 
 The trustee himself may retain his own debt out of Retainer 
 the assigned property ; Wilding v. Richards, 1 Coll. 655; 
 Siggers v. Evans, 5 E. & B. 367 ; and see Hobson v. 
 Thelluson, L. R. 2 Q. B. 642. 
 
 As to the effect of the settlor's death upon the rights Death of 
 of unpaid creditors without notice, see Synnot v. Simp- ^® °'^' 
 son, 5 H. L. C. 139 ; Montefiore v. Browne, 7 H. L. C 
 266. 
 
 If the trust for creditors is to take effect on death, Creditors 
 with subsequent trusts in favour of others, it seems that ^^{g^J^e' 
 the debts are properly and primarily payable under the trust. 
 deed, the creditors then becoming cestuis que trust : 
 Synnot v. Simpson, supra ; Montefiore v. Browne, 7 H. 
 L. C. 266. 
 
 And after a creditor had set up a claim to a priority. Adverse 
 which failed, the Court refused to interfere with the dis- "^ *""■ 
 cretion of the trustees, who had declined to admit him 
 to take under the deed : Brandling v. Plummer, 6 W. 
 R. 118. 
 
 If there has been an assignment to a trustee for Action by 
 creditors, the trustee can maintain an action to get in 
 
4£ REVOCABLE TRUSTS FOR CREDITORS. 
 
 part of the debtor's estate without making the creditors 
 parties : Glegg v. Eees, 7 Ch. 71. 
 Limit of It has been said that the principles applicable to volun- 
 
 tary trusts for creditors will not be extended to cases of 
 trusts for other descriptions of volunteers : Paterson v, 
 Murphy, 11 Hare, 88. 
 
 doctrine. 
 
CHAPTEE IX. 
 
 OF EXECUTORY TRUSTS. 
 
 "An executory trust, as opposed to a trust executed What is an 
 [which is one declared by and contained in the instru- *^°^ "'^ 
 ment itself], is a trust raised by a stipulation or direction 
 in marriage articles, or in a deed or will, to make a convey- 
 ance, settlement, or assurance to uses, or upon trusts, 
 ■which do not appear to be formally and finally declared by 
 the instrument containing such stipulation or direction : " 
 Fearne, § 489 ; Stamford v. Hobart, 3 B. P. C. 31—33 ; 
 Sackville West v. Holmesdale, L. E. 4 H. L. 553. 
 
 Where, therefore, an executory trust arises, the Court I'ower of 
 will not direct a conveyance according to the informal ex- tion by the 
 pressions, but one to be made in a proper legal manner *^''"'^- 
 so as may best answer the interest of the parties : Stam- 
 ford V. Hobart, 3 B. P. C. 31—33 ; Glenorchy v. Bosville, 
 1 W. & T. L. C. 16. 
 
 The instances of the application of this rule are gene- Effect of 
 
 . . 1 . 1 • 1 , 1 • the rule in 
 
 rally those of marriage articles m which there being a sheiky's 
 limitation to the husband for life, with a remainder to the ""**■ 
 heirs or heirs male of his body, or his issue, or the like, 
 an introduction of such a limitation into the formal settle- 
 ment would, according to the rule in Shelley's case (1 Go. 
 Rep. 93), vest an immediate estate of inheritance in the 
 husband, which he could forthwith dispose of by convey- 
 ance or statutory bar ; thereby destroying the very intent 
 of the settlement : Sackville West v. Holmesdale, L. R. 4 
 H. L. 553, 561, 572. 
 
 But the application of this modifying power in the Distinction 
 Court is different in the cases of wills ; for, whereas in case of 
 
44. EXECUTORY TRUSTS — IN MARRIAGE ARTICLES. 
 
 ■wills and the case of articles the nature of the case, the propriety of 
 articles. providing for the issue, &c., afford sufficient ground for 
 treating the articles in such a way as that the purposes 
 shall not be defeated, in a will there is no such guide, 
 except the intention to be gathered from the document 
 itself, and thus if the testator has been " his own convey- 
 ancer" and has left nothing incomplete, but has shewn the 
 limitations to be inserted in the formal settlement, such 
 limitations cannot be moulded by the Court, and will be 
 treated as executed legal gifts : Hochfort v. Fitzmaurice, 
 2 Dr. & W. 21 ; Egerton v. Brownlow, 4 H. L. C. 210 ; 
 Austen v. Taylor, 1 Ed. 861 ; 8ackville West v. Holmes- 
 dale, L. R. 4 H. L. 561. 
 
 This distinction (which was apparently denied by Lord 
 Hard wick in Bagshaw v. Spencer, 1 Ves. Sen. 150) is now 
 clearly established with regard to the means of testing 
 whether a trust is executory or not ; in the mode of 
 executing it there is no difference when its executory 
 nature has been ascertained ; Jervoise v. Duke of North- 
 umberland, 1 J. & W. 571, explaining Countess of Lin- 
 coln Y. Duke of Newcastle, 12 Ves. 227 ; Rochfort v. 
 Fitzmaurice, 2 Dr. & W. 29, 30. 
 
 Fxecutory Trusts in Manage AHicles. 
 
 In marriage I^ antenuptial articles if there be a limitation to the 
 articles; parents for life, with a remainder to the heirs of their 
 
 limitations r ,. , , , ,, • i i t 
 
 to parents bodies, the latter words are generally considered as words 
 ''f th^^'" of purchase and not of limitation, and such articles are 
 bodies. thus construed in drawing the formal settlement ; Fearne, 
 
 90, 8th ed. ; Trevor v. Trevoi% 1 Eq. Ca. Ab. 387 ; 2 B. P. C. 
 
 122 ; White v. Thornhorough, 2 Vern. 702. 
 Husband's -A- Settlement in pursuance of articles agreeing to settle 
 lands: lands of the husband for his and his wife's ioint lives, and 
 
 special , . "^ 
 
 entail. afterwards to the use of the heirs of his body by the wife, 
 must provide for the issue by a limitation to the children 
 successively, and not by the words used in the articles, 
 which would in effect allow the husband or wife to bar the 
 entail : Streatfield v. Streatjield, Talb. 176. 
 
EXECUTOEY TRUSTS — IN MARRIAGE ARTICLES. 45 
 
 The doctrine is the same as to the wife's lands : Jones Wife'a 
 V. Langhton, 1 Eq. Ca. Ab. 392. ^^'"^^■ 
 
 Or where the limitations are in favour of the issue of Issue of 
 both husband and wife : Nandike v. Wilkes, Gilb. 814 ; j,°„j ^^ 
 Burton v. Hastings, ih. 113. "wife. 
 
 But the rule does not apply where the settlement is in Exception 
 such a form as that neither the husband nor the wife can ^g;^^^, 
 bar alone, but jointly only : Highway v. Banner, 1 B. husband or 
 C. C. 584: ; Honor v. Honor, 1 P. Wms. 123 ; and see per baAlone; 
 Lord Hatherley in Sackville West v. Holmesdale, L. E.. 4 
 H. L. 554, 555, 560; but see 3 & 4 Will. 4, c. 74, s. 16 
 (Fines and Recoveries Act), and per Lord St. Leonards in 
 Rochfort V. Fitzmaurice, 2 Dr. & W. 19. 
 
 Nor will a strict settlement be decreed if by the articles Exception 
 other provision is made for the issue : Chambers v. Cham- ^tha^Tse"* 
 
 bf.rs, Fitzgibbon, 127. proyided 
 
 If the settlement have been made previous to the mar- -^^^ 
 riage, but in express pursuance or part performance of applies 
 articles, the Court will, without requiring any evidence, settlement 
 rectify the settlement so as to make it correspond with ""'|«'^ 
 the articles : Warrick v. Warrick, 3 Atk. 291 ; Bold v. is ante- 
 Hutchinson, 5 D. M. & G. '558 ; Honour v. Honour, 2 Vern. ""P*'*l- 
 t;58 ; 1 P. W. 123 ; West v. Errissey, 1 B. P. C. 22.5, re- 
 versing 2 P. W. 349 ; but see Breadalbane v. Chandos, 
 2 M. & Cr. 711 ; Burton v. Hastings, Gilb. 113 ; Powell 
 V. Price, 2 P. W. 535. 
 
 But if the settlement can be taken as a new agreement, Secv^, if 
 or as expressing some altered intention, or include other ^aSes 
 property, the settlement, and not the articles, will be fol- varied, 
 lowed : Legg v. Goldwire, Talb. 20 ; Symonds v. Wilkes, 
 11 Jur. N. S. 659; see Luders v. Anstey, 4 Ves. 501 ; 
 Amb. 315. 
 
 In such a case the settlement will be treated as volun- 
 tary and void against a purchaser for value : Trowell v. 
 Shenton, 8 Ch. D. 318 ; compare Teasdale v. Braithwaite, 
 5 Ch. D. 630 ; Re Foster and Lister, 6 Ch. D. 87. 
 
 It seems, however, that this would now be a case for Bectifica- 
 the admission of parol evidence to prove that a mistake *""'™^'"- 
 
46 
 
 EXECUTORY TRUSTS — IN MARRIAGE ARTICLES. 
 
 dence of 
 mistake. 
 
 Contract 
 in articles 
 must be 
 performed 
 by post- 
 nuptial 
 settlement. 
 
 Females 
 included in 
 "issue." 
 
 Form of 
 settlement 
 on females. 
 
 Joint 
 tenancy, 
 read 
 
 tenancy in 
 common. 
 
 Limitation 
 over on 
 death 
 under 21. 
 
 Where 
 joint 
 tinancy 
 i.uplied. 
 
 Rule not 
 
 applied 
 
 against 
 
 parcbaseis 
 
 for value 
 
 ■without 
 
 notice. 
 
 had been made, and that the Court would rectify the set- 
 tlement or not accordingly : Bold v. Hutchinson, supra ; 
 Rogers v. Uarl, 1 Dick. 294, and the cases cited in 
 Sugd*. V. & P. 172, n. (i) ; Lodeij v. Heath, 1 D. F. & J. 
 489. 
 
 Where the settlement is postnuptial, the articles will be 
 followed if a distinct contract is contained in them, subject 
 of course to their executory nature : Hammersley v. De 
 Biel, 12 CI. & F. 45 ; and see Smith v. Iliffe, 20 Eq. 666 ; 
 Cogan v. Dwffield, 20 Eq. 789, aff. 2 Ch. D. 44 ; Lee v. 
 Lee, 4 Ch. D. 175. 
 
 If the limitation be to issue, females are entitled as well 
 as males : Hart v. Middlehurst, 3 Atk. 371 ; and see West 
 V. Errissey, 2 B. P. C. 327; Trevor v. Trevor, 1 H. L. C. 
 239 ; Gilbert, Lex Prsetoria, 253. 
 
 Where the articles provide for the issxie of the mar- 
 riage, their heirs and assigns, the settlement wi]l be 
 directed on an only son in tail, with remainder to the 
 daughters as tenants in common in tail with cross-remain- 
 ders : Phillijus V. James, 2 Dr. & Sm. 404, aff. 13 W. R. 
 934 ; and see Re Grier, I. R. 6 Eq. 1 ; L. R. 5 H. L. 688. 
 
 And words importing a joint tenancy will be construed 
 to mean a tenancy in common, if the trust is intended 
 for the benefit of all the children; Taggart v. Taggart, 
 1 Sch. & L. 84 ; Mayn v. Mayn, 5 Eq. 150. 
 
 In that case there would also be inserted a provision 
 limiting over the property on death of children iinder 21 : 
 ibid. ; Cogan v. Duffueld, 2 Ch. D. 44, and the cases there 
 cited. 
 
 If, however, a limitation be to children simpliciter, a 
 joint tenancy must be inferred on the ground that the 
 instrument is not executory : Le HavillandY. Be Sauma- 
 rez, 14 W. R. 118 ; Mayn v. Mayn, 5 Eq. 152 ; Re Bel- 
 lasis, 12 Eq. 218. 
 
 The Court refuses to vary the limitations against a pur- 
 chaser for value without notice : West v. Ernssey, supra; 
 Warrick v. Warrich, 3 Atk. 291. 
 But it will enforce the articles against a purchaser with 
 
EXEGUTOKY TRUSTS — IX WlLLSi 47 
 
 notice, except where after a lapse of time there is any- 
 thing so equivocal or ambiguous in the articles as to 
 render it doubtful how they ought to be effectuated : 
 Thompson v. Shnpson, 1 Dr. & War. 491. 
 
 Nor will it interfere where the articles themselves are Nor where 
 not produced : Cordwell v. Macknll, Amb. -Slo ; 2 Ed. 344 ; produced. 
 Mignan v. Parry, 31 Beav. 211. 
 
 Executory Trusts in Wills. 
 In the case of wills, the object of the testator can be In wills 
 
 when 
 
 trusts 
 
 gathered only from the words he uses ; and therefore there 
 is not the guide to his • purpose which is furnished in the are execu- 
 case of marriage articles by the nature of the intended when not. 
 relation between the parties. Thus the Court will mould 
 executory limitations in a will only where the testator has 
 declared the trust in an imperfect or inaccurate manner. 
 In other words, if the testator has been " his own convey- 
 ancer," i.e., has sufficiently shewn the limitations to be 
 inserted in the contemplated instrument, no deviation 
 from those limitations will be permitted : Blackburn v. 
 Stables, 2 V. & B. 369 ; Egerton v. Brownlow, 4 H. L. C. 
 1 ; Jervoise v. Buke of Northumberland, 1 J. & W. 
 559 ; Rochfort v. Fitzmaurice, 2 Dr. & W. 1 ; Donca^ter 
 V. Doncaster, 3 K. & J. 26 ; Sackville West v. Holmesdale, 
 L. R. 4 H. L. 543 ; Duncan v. Bluett, I. R. 4 Eq. 469 ; 
 He Kelley, W. N. 1877, 120, aff. ih. 222. 
 
 In the following cases the testator has been treated as Cases 
 " his own conveyancer : " — f''^^® ^ 
 
 •' trusts not 
 
 Where he has dn-ected that a proper entail shall be modified. 
 made upon the heir male of each devisee as he came into •*■ "p™per 
 
 .,.,.,,. 11- 1 . entail" to 
 
 possession, which will give each neir male an estate in be made 
 tail male : Blackburn v. Stables, 2 V. & B. 367; Britton ^eirmale 
 V. Twining, 3 Mer. 176 ; Sealy v. Stawell, I. R. 2 Eq. 
 S26, 351 ; Marshall v. Bousjield, 2 Mad. 166 ; but see 
 jervoise v. Duke of Northumberland, supra. 
 
 Where the trust is to settle lands on A. and the heirs of To A. and 
 his body: Scale v. Scale, 1 P. W. 290; Sweetapple v. ^^,\^„ty!°' 
 
48 
 
 EXECUTORY TRUSTS — IN WILLS, 
 
 To A. for 
 separate 
 use and 
 then to 
 convey to 
 her heirs. 
 
 Trusts by 
 reference. 
 
 Bindon, 2 Vem. 536 ; Marryat v. Tovmly, 1 Ves. Sen. 
 104 ; but see Bastard v. Proby, 2 Cox, 6. 
 
 Or to A. for her separate use for life, and then upon 
 trust to convey to her heirs : Jackson v. Noble, 2 Keen, 
 590 ; but see Roberts v. Bixwell, 1 Atk. 607 ; Stonor v. 
 Curwen, 5 Sim. 264 ; compare Teasdale v. Braithtuaite, 
 5 Ch. D. 630. 
 
 Where the lands are to be settled by reference to the 
 trusts of other lands: Austen v. Taylor, 1 Ed. 361; but 
 see Papillon v. Voice, 2 P. W: 470 ; Green v. Stephens, 
 17 Ves. 76 ; Sackville West v. Holmesdale, supra. 
 
 In the above cases the intention to confer an estate 
 tail or absolute interest was held to be sufficiently ex- 
 pressed to prevent it from being cut down to a life estate 
 in the first taker. 
 
 / 
 
 where 
 trusts 
 modified. 
 
 Eestrictiou 
 on barring 
 entail. 
 
 Kemainder 
 to issue. 
 
 Person 
 dying with- 
 out issue. 
 
 Separate 
 use and 
 gift over. 
 
 As counsel 
 
 The cases in which the Court has moulded the testator's 
 will, by directing a strict settlement or otherwise, are as 
 follows : — 
 
 A devise ,to a son and the heirs of his body, with a 
 restriction as to " docking the entail," was turned into a 
 life estate in him, but without impeachment of waste : 
 Leonard v. Sussex, 2 Vem. 526 ; see 2 Jarm. Wills, p. 
 328; Thomfson v. Fisher, 10 Eq. 207; and see Wool- 
 more v. Burrows, 1 Sim. 512. 
 
 A direction to settle lands upon trusts for A. for life, 
 with remainders over to the heirs of his body, or to his 
 issue simply : Glenorchy v. Bosville, 1 W. & T. L. C. 1 ; 
 Papillon V. Voice, 2 P. W. 471 ; Trevor v. Trevor, 1 
 H. L. C. 239 ; but see Austen v. "Taylor, 1 Ed. 361. 
 
 Where there is a gift over on the devisee dying with- 
 out issue : Shelton v. Watson, 16 Sim. 543 ; Thompson v. 
 Fisher, 10 Eq. 207. 
 
 A direction to convey to the separate use of A. for life, 
 so that her husband should not intermeddle therewith, 
 with remainder to the heirs of her body : Roberts v. Bix- 
 well, 1 Atk, 607 ; Stonor v. Curwen, 5 Sim. 264. 
 
 Where there is a direction that the lands shall be 
 
shall think 
 proper. 
 
 trusts too 
 remote. 
 
 EXECUTOEY TRUSTS — FORM OF SETTLEMENT. 49 
 
 settled as counsel shall advise : Bastard v. Prohy, 2 Cox, »hail ad- 
 6 ; White v. Carter, 2 Ed. S66 ; SacJcville West v. Holmes- '"''' 
 dale, L. E. 4 H. L. 543. 
 
 Or as the executors or trustees shall thick proper : As trustees 
 Read v. Snell, 2 Atk. 642, 648 ; Sackville West v. Holmes- 
 dale, supra. 
 
 A limitation of lands to be settled according to the limi- Trusts by 
 tations of a peerage, to the peers and the heirs of their to^f^;"^. 
 bodies, will be effected by giving successive estates for life tion of 
 to each taker : Sackville West v. Hohnesdale, L. R. 4 I'^^'^'^se- 
 O H. L. 543 ; Cope v. Earl Be la Warr, 8 Ch. 982. 
 \ If the executory limitations proposed by the testator Where 
 r^ would be void for remoteness, the Court will pat the 
 V^ h-ettlement within the permitted limits : Humberston v. 
 \ Humherston, 1 P. W. 332 ; Lyddon v. Ellison, 19 Bea. 
 \ 56o ; but see Blagrove v. Hancock, 16 Sim. 371. 
 
 ^' Frame of the Settlement Directed. 
 
 N- The Court will include females as comprised in the Females 
 ^ term " heirs of the body :" Bastard v. Prohy, 2 Cox, 6. as°" heirs 
 
 Or "issue:" Meure v. Meure, 2 Atk. 265; Trevor v. of body:" 
 Trevor, 13 Sim. 108; 1 H. L. C. 239; Mason v. Mason, °^J',?'- 
 I. E. 5 Eq. 288. 
 
 And if to the separate use of females, it will be with- Separate 
 out power of anticipation : Turner v. Sargent, 17 Bea. 
 515 ; Re JDunnill, I. E. 6 Eq. 322 ; Teasdale v. Braith- 
 waite, Ch. D. 630. 
 
 It is not a matter of course that a protector of the Protector 
 settlement will be appointed by the Court : Bankes v. Le appointed. 
 Despencer, 11 Sim. 508. 
 
 The life estates are generally limited sans waste: Life estates 
 Leonard v. Sussex, 2 Vern. 526 ; Sackville West v. waste." 
 Holmesdale, L. E. 4 H. L. 543 ; but see Davenport v. 
 Davenport, 1 H. & M. 779 ; Stanley v. Coulthurst, 10 Eq. 
 259. 
 
 But not if there is a restraint against anticipation : Restraint 
 Cliv6 V. Clive, 7 Ch. 433. ^^ 
 
50 
 
 EXECUTORY TEUSTS — FORM OF SETTLEMENT. 
 
 Gavelkind 
 lands. 
 
 Joint 
 tenancy. 
 
 Personalty, 
 under 
 words ap- 
 plying to 
 realty. 
 
 What 
 powers 
 will be 
 inserted. 
 
 Power to 
 jointure 
 and charg- 
 ing por- 
 tions. 
 
 Powers of 
 mainte- 
 nancCj &c. 
 
 Where 
 some 
 powers 
 mentioned 
 hy testator. 
 
 Where will 
 silent £s to 
 powers. 
 
 If the lands are gavelkind the Court directs a strict 
 settlement without reference to the custom : Roberts v. 
 Dixwell, 1 Atk. 607. 
 
 A clear intention to provide for the several benefit of 
 each one of the issue -will enable the Court to turn a joint 
 tenancy into a tenancy in common : Synge'Y. Rales, 2 
 B. & B. 499 ; Marryat v. Toiunly, 1 Ves. Sen. 101. 
 
 Personalty to be settled under words applicable to realty 
 only Avill be limited in the manner which will best show 
 the testator's purpose : Loch v. Bagley, 4> Eq. 122. 
 
 Where the testator directs " all usual powers " to be 
 inserted in the settlement, powers of management may be 
 inserted, e.g., of leasing, granting building leases, sale and 
 exchange, partition, transposition of securities, appoint- 
 ment of new trustees : Hill v. Hill, 6 Sim. 144; Bedford 
 V. Abercorn, 1 M. & Cr. 312 ; Sampayo v. Gould, 12 Sim. 
 426 ; but see Brewster v. Angell, 1 J. & W. 628. 
 
 But not powers of jointuring or charging portions, for 
 the Court cannot say to what extent such charges should 
 go : Hill V. Hill, supo^a ; Higginson v. Barneby, 2 S. & 
 S. 516 ; Re Grier, I. R. 6 Eq. 1 ; S. C. L. E. 5 H. L. 688 ; 
 but see Mason v. Mason, I. R. 5 Eq. 288. But if the will 
 gives powers of jointuring and charging portions, and the 
 codicil directs a settlement with such powers as counsel 
 should advise, they will be inserted into the settlement : 
 Sackville West v. Holmesdale, L. R. 4 H. L. 543. 
 
 But powers of maintenance, education and advancement 
 may be put in as " usual powers " : Mayn v. Mayn, 5 Eq. 
 150 ; see Turner v. Sargent, 17 Bea. 515. 
 
 If some powers are mentioned by the testator, no others 
 will be inserted, unless from the context of the general 
 words referring to such powers it can be gathered that the 
 testator only meant that those mentioned should be put 
 in at all events : Lindow v. Fleetwood, 6 Sim. 152 ; Pearse 
 V. Baron, Jac. 158 ; Brewster t. Angell, supra. 
 
 If the will is silent as to the powers to be conferred, 
 powers of leasing, sale and exchange, may be introduced 
 in the settlement : Turner v. Sargent, 17 Bea. 515. 
 
vesting in 
 tenant in 
 
 EXECUTORY TRUSTS OP CHATTELS. 51 
 
 And a power to renew leases : see post, p. 149. 
 Or a power to appoint to a husband for life : Charlton 
 V. Rendall, 11 Ha. 296. 
 
 If the direction in the will to settle is too vague, as Vague 
 to settle " on marriage," the Court cannot execute it to'^^ettlT 
 at all : Magrath v. Morehead, 12 Eq. 491. "on mar- 
 
 But in articles a direction to settle upon " younger chil- m ° 1., 
 dren " is not held to be so vague as not to be capable " younger 
 of execution : Brenan v. Brenan, I. R. 2 Eq. 266. children." 
 
 Executory Trusts of Chattels hy reference to Limitations 
 of Real Estate. 
 
 If the trust to settle chattels upon trusts corresponding Where 
 to those of realty be executory (according to the defini 
 tion of that term in the case of articles), the Court will tail at birth 
 prevent the vesting of the chattels in the first tenant in 
 tail at his birth (as would be the case in an executed 
 trust) by a condition that he shall attain 21 or die under 
 that age leaving issue : Duke of Neivcastle v. Countess of 
 Lincoln, 3 Yes. 387, 12 Ves. 218 ; Scarsdale v. Gurzon, 
 1 J. & H. 51. 
 
 It is not sufficient, either in the case of a will or Effect of 
 of articles, to add such words as "so far as the rules of law 7°'^'^^ "f 
 
 ' ^ lar as rules 
 
 or equity will permit," to make the trusts executory : of law or 
 Vaughan v. Burslem, 3 B. C. C. 101 ; Carr v. Erroll, 14 l^^l^,, 
 Ves. 478; Scarsdale v. Curzon, supra; Christie v. Gosling, 
 L. > R. 1 H. L. 279 ; Harrington v. Harrington, L. R. 5 
 H. L. 87. 
 
 And on a direction in a clearly executory form that each Executory 
 eldest son on coming into possession shall take jewels settlement 
 as heirlooms, effect will be given to the intention so as on eldest 
 to prevent any absolute vesting while there should be ^™^' 
 any person to take on attaining 21, or dying under 21 
 leaving a son : Shelley v. Shelley, 6 Eq. 540. 
 
 B 2 
 
Meaning 
 of term. 
 
 May be 
 created by 
 deed or 
 will. 
 
 Precatory 
 words 
 importing 
 trust. 
 
 CHAPTEE X. 
 
 PRECATORY TRUSTS. 
 
 "Words accompanying a gift or beqiie.st expressive 
 of hope or desire, of confidence, belief, or even of recom- 
 mendation, that a particular application will be made by 
 the donee, are sufficient to create a trust, if the donee can- 
 not but choose to make such application ; if the subject 
 matter of the gift be ascertainable ; and if the objects 
 are expressed in a manner not too vague or indefinite to 
 be enforced by a court of equity." Bviggs v. Penny, 3 
 Macn. & G. 546 ; and see 1 Jarm. Wills, 354, et seq.; the 
 notes to Harding v. Glyn, 2 W. & T. L. C. 962 ; 
 Theobald on Wills, p. 254, et seq. 
 
 It seems that a precatory trust may be created in a 
 settlement by deed : Liddard v. Liddard, 28 Bea. 266. 
 
 1, Words which have been held to import a trust : 
 
 ■' Will " or " desire " : JSales v. England, Pr. Ch. 200 ; 
 2 Vern. 467 ; Harding v. Glyn, 1 Atk. 469 ; Pushman 
 V. Filliter, 3 Ves. 7; Bonsor v. Kinnear, 2 Giflf. 195; 
 Liddard v. Liddard, 28 Bea. 266 ; but see Stead v. Mellor, 
 5 Ch. D. 225. 
 
 "Will and desire": Birch v. Wade, 3 V. & B. 198; 
 Forhes v. Ball, 3 Mer. 437. 
 
 " Beg " : Gorhet v. Corhet, I. R. 7 Eq. 456. 
 
 " Beg and request " : see Green v. Marsden, 1 Dr. 646. 
 
 "Entreat": Prevost v. Clarke, 2 Madd. 458; Meredith 
 V. Heneage, 1 Sim. 553. 
 
PRECATORY TRUSTS. 53 
 
 " Require and entreat " : Taylor v. George, 2 V. & B. 
 378. 
 
 " Request " : Pierson v. Gar7iet, 2 B. C. C. 38 ; Hade 
 V. Ilade, 5 Madd. 118 ; Moriarty v. Martin, 3 Ir. Ch. R. 
 26 ; see Bernard v. Minshull, Johns. 276. 
 
 "Wish and request " : Foley v. Parry, 2 M. & K. 138. 
 
 " Last wish " : Hinxman v. Poynder, 5 Sim. 546. 
 
 " Dying wish " or " request " : Godfrey v. Godfrey, 11 
 W. R. 554 ; Pierson v. Garnet, 2 B. C. C. 38. 
 
 "Direct " or " order and direct": White v. Briggs, 2 Ph. 
 583 ; Gary v. Gary, 2 Sch. & L. 189. 
 
 " Trusting " ; Pilklngton v. Boughey, 12 Sim. 114 ; see 
 Irvine v. Sullivan, 8 Eq. 673. 
 
 " Hoping " : Harland v. Trigg, 1 B. C. C. 142 ; Paul v. 
 Compton, 8 Ves. 380; but see Baton v. Watts, 4 Eq. 151. 
 
 " Not doubting " : Taylor v. George, 2 V. & B. 378 ; Par- 
 sons V. Baker, 18 Ves. 476 ; Sale v. Moore, 1 Sim. 534 ; 
 but see Baton v. Watts, 4 Eq. 151. 
 
 " Fullest confidence " : Palmer v. Simmonds, 2 Dr. 225 ; 
 Ware v. Mallard, 16 Jur. 492 ; Shovelton v. Shovelton, 32 
 Bea. 143 ; Curnick v. Tucker, 17 Eq. 320 ; Le Marchant 
 V. Le Marchant, 18 Eq. 414 ; but see Fox v. Fox, 27 Bea. 
 301 ; Re Hutchinson and Tenant, 8 Ch. D. 543. 
 
 " Confiding in " : Pilklngton v. Boughey, 12 Sim. 114 ; 
 Griffiths v. Evans, 5 Bea. 241 ; Shepherd v. Nottidge, 2 J. 
 & H. 766 ; but see Wood v. Cox, 2 M. & Cr. 684. 
 
 "Well assured": Ray v. Adams, 3 M. & K. 237; 
 Macnab v. Whitbread, 17 Bea. 299 ; Gully v. Cregoe, 24 
 Bea. 185. 
 
 " In the firm conviction " : Barnes v. Grant, 26 L. J. 
 Ch. 92 ; 2 Jur. N. S. 1127 ; Gully v. Cregoe, 24 Bea. 185. 
 
 " Convinced ": Hart v. Tribe, 18 Bea. 215. 
 
 " Well knowing " : Briggs v. Penny, 3 Macn. & G. 546 
 
 " In the full belief" : Fordham v. Speight, W. N., 1875, 
 140. 
 
 " Recommend " : Malim. v. Keighley, 2 Ves. Jun. 333 ; 
 Meggison v. Moore, 2 Ves. Jun. 630 ; Paul v. Compton, 
 8 Ves. 380 ; Tihbits v. Tibbits, 19 Ves. 657; Meredith v. 
 
5-1 
 
 PRECATORY TRUSTS. 
 
 Degrees of 
 cogency of 
 such ex- 
 pressions. 
 
 Precatory 
 trust as 
 binding as 
 any other. 
 
 Heneage, 1 Sim. 553 ; exp. Fayne, 2 Y. & C. C. C. 636 ; 
 Gholmondeley v. Gholmondeley, 14 Sim. 590; but see 
 Meggison v. Moore, 2 Ves. Jun. 630 ; Sale Y.Moore, 1 Sim. 
 534 ; Johnston v. Rowlands, 2 De G. & Sm. 356 ; Lefroy 
 V. Flood, 4 I. Ch. E. 1. 
 
 " Authorise and empower " : Brown v. Higgs, 4 Ves. 
 708, 18 Ves. 192. 
 
 These various forms of expression are not of equal force 
 and cogency ; words of recommendation, or request, or of 
 hope, are hardly so strong as those of entreaty or confi- 
 dence, and their construction as a command must depend 
 upon the language used in each particular instrument: 
 Eaton V. Watts, 4 Eq. 151. 
 
 The principle that a trust with all its consequences 
 may be created by precatory words, though now well 
 settled, has not been universally approved and is not 
 likely to be extended : Sale v. Moore, 1 Sim. 534 ; Lambe 
 V. Fames, 6 Ch. 697 ; Stead v. Mellor, 5 Ch. D. 225 ; 
 Re Hutchinson and Tenant, 8 Ch. D. 543. 
 
 2. The donee must be so bound that he cannot but 
 choose to carry the expressed wish into execution. 
 
 Trust de- 
 feated Ijy 
 power to 
 except. 
 
 Restric- 
 tions on 
 enjoyment. 
 
 0?rusting to 
 liberality 
 for speci- 
 fied object. 
 
 "Bulk" 
 or "what 
 is left " too 
 indefinite. 
 
 Injunction 
 to leara 
 
 A power expressly or impliedly given to withdraw a 
 portion of the property from the operation of the alleged 
 trust, will defeat it in toto : Cole v. Howes, 4 Ch. D. 238. 
 
 A devisee in tail cannot be prevented from, barring 
 it by words of trust or confidence that he will not do so : 
 BawJdns v. Penrhyn, 6 Ch. D. 318 ; see post, p. 84. 
 
 So a gift trusting to the donee's " liberality " to reward 
 others and to retain the estates in a particular line is not 
 upon trust : Knight v. Boughton, 11 CI. & F. 513. 
 
 If the testator uses such words as the " bulk " or " what 
 is left '' as intended to be affected by his desire or recom- 
 mendation, no trust arises : Palmer v. Simmonds, 2 Drew. 
 221; Pushman v. Filliter, 3 Ves. 7; Wy7ine v. Hawkins, 
 1 Bro. C. C. 179. 
 
 So also if the wish is that the donee will leave his 
 
PRECATORY TRUSTS. 55 
 
 property, and not the testator's, in a particular way, there donee's 
 is no trust: Eade v. Eade, 5 Madd. 119; Lechmere v. vdd.^ ^ 
 Lavie, 2 M. & K. 201; see and consider Horwoocl v. West, 
 1 S. & S. 387 ; Parnall v. Paniall, W. N. 1878, 188. 
 
 There will be no trust if the gift is qualified by such "Unfetter- 
 words as " unfettered " and " unlimited " : Meredith v. trust!^ *'^ 
 HeTieage, 1 Sim. 553 ; 10 Price, 230 ; White v. Briggs, 
 15 Sim. 33. 
 
 Or, "in the entire power" or "judgment": Eaton v. Or"in 
 Watts, 4 Eq. 151 ; and see McCormick v. Grogan, L. R. ^J^^H „ 
 4 H. L. 82. &c. 
 
 Or " qiiite at liberty to give and distribute what and "Quite at 
 to whom she pleased": Cole v. Halves, 4 Ch. D. 238. &c."^^'" 
 
 Or "not absolutely enjoin": Young v. Martin, 2 Y. "Notab- 
 & C. C. C. 582. ^°l'^*«iy 
 
 enjom. 
 
 A desire that a person should "continue" to act as agent ^gent of 
 of the estates at the usual charge, has been held not to be testator to 
 
 . ° ' be con- 
 
 bmding on the executors : Shaiv v. Lawless, 5 01. & F. tinued. 
 129 ; but see Williams v. Corbet, 8 Sim. 349. 
 
 Words of expectation or advice following what is held Words of 
 to be intended as an absolute gift create no trust : Lech- "■ ^'^®" 
 mere v. Lavie, 2 M. & K. 197; Scott v. Key, 35 Bea. 
 291. 
 
 Thus a wish that the donee will "do justice to "the "Do 
 donor's children, gives them no interest: Ellis v. Ellis, Justi<=<=t°-" 
 23 W. R 382 ; and see Cole v. Hawes, 4 Ch. D. 238. 
 
 Or that he will " take care of " the property for the " Take 
 good of the children : Pope v. Pope, 10 Sim. 1. ""' ''^■" 
 
 Or, to " be kind to ; " " remember ; " " consider ;" Bug- "Be kind 
 gins v. Yates, 9 Mod. 122 ; Bardsvjell v. Bardswell, *"' ^''' 
 9 Sim. 319 ; Sale v. Moore, 1 Sim. 634. 
 
 So no trust arises if the desire or recommendation is one Or desire 
 which the Court could not enforce if it were to be con- forgg^ble 
 strued as a trust: Hood v. Oglander,Z4> Bea. 513; Graves by Court as 
 V. Graves, 13 I. Ch. R. 182. ^ *™'*- 
 
 An absolute gift, with a trust superadded for others after Eights of 
 
 the death of the donee, does not prevent the exercise of ^^^ 
 
 the usual acts of ownership by a tenant for life, such as lus o'™ 
 
 enjoyment. 
 
56 
 
 PRECATOEY TRUSTS. 
 
 cutting timber in a husbandlike manner : Wright v. At- 
 Icyns, T. & R. 143, 163. 
 
 But security must be given that the property will be re- 
 tained in statu quo : ibid.; Hands v. Hands, 1 T. R. -137 n. 
 
 8. Certainty of the objects and property referred to by 
 the testator : 
 
 "Ee:a- 
 tions." 
 
 "Descend- 
 ants." 
 
 " Family.' 
 
 Heirs." 
 
 Indefinite 
 object not 
 to defeat 
 trust once 
 estab- 
 lished. 
 
 If it fail, 
 heir or next 
 of kin 
 entitled. 
 
 The word " relations " has been thought a sufficient 
 description of the objects: Harding v. Glyn, 1 Atk. 469; 
 Birch V. Wade, 3 V. & B. 198 ; and see Cole v. Hawen, 
 4 Ch. D. 238. And if the trust be not executed by the 
 donee during his life, the Court will declare the next of 
 kin according to the Statutes entitled : Harding v. Glyn, 
 supra. 
 
 "Descendants" are ascertainable within the rule: Pier- 
 son V. Garnet, 2 B. C. C. 38, 226 ; Parsons v. Baker, 18 
 Ves. 476. 
 
 It seems that the word "family" is too vague with re- 
 spect to personalty : Harland v. Trigg, 1 B. C. C. 142 ; 
 Wright v. Atkyns, T. & R. 159 ; Stubbs v. Sargon, 2 
 Keen, 25-5 ; Lambe v. Eames, 6 Ch. 597 ; Re Hutchinson 
 and Tenant, 8 Ch. D. 542, in which it was held to mean 
 children. But see Crutuys v. Colman, 9 Ves. 319 ; Green 
 V. Marsden, 1 Dr. 651. With respect to realty, " family " 
 if not otherwise controlled by the context may mean the 
 heir-at-law: Wright v. Atkyns, supra; Green v. Marsden, 
 supra. 
 
 "Heirs," without some indication as to Avho were in- 
 tended to take is too vague, where the gift includes both 
 realty and personalty : Meredith v. Heneage, 1 Sim. 542. 
 
 If it be once established that a trust was intended, the 
 legatee cannot take beneficially, although the objects may 
 be too vague to be enforced : Briggs v. Penny, 3 McN. & 
 G. 546 ; Bernard v. Minshull, Johns. 276. 
 
 In that case the trust is established in favour of the 
 heir or next of kin, as on the failure of a trust in any 
 other case: ibid.; Morice y. Bishop of Durham, 10 Ves.521. 
 
PRECATORY TRUSTS. 57 
 
 Where the absolute interest first sriven is followed by Absolute 
 a direction to dispose of the property for the benent ot power of 
 children, the donee takes a life interest with a power to ^p^^™*" 
 appoint amongst the children : Waoe v. Mallard, 21 L. J. among 
 Ch. 355 ; Gully v. Gregoe, 24 Bea. 185 ; Shovelton v. *"'^''°- 
 Shovelton, 32 Bea. 143 ; Gurnick v. Tucker, 17 Eq. 320 ; 
 Le Marchant v. Le Marchant, 18 Eq. 414 ; Fordham v. 
 Speight, W. N. 1875, 140, 23 W, K. 782 ; but see Barnes 
 V. Grant, 26 L. J. Ch. 92 ; Lambe v. Eames, 6 Ch. 597 ; 
 Re Hutchinson and Tena7it, 8 Ch. D. 543. 
 
 What interest is taken by the children will not be Whenin- 
 
 p 1 . p terests oi 
 
 declared by the Court till the death of the tenant for life, children 
 or, if the question is raised by demurrer, at least until the "^eolared. 
 hearing : Crockett v. Crockett, 2 Ph. 553 ; Haii v. Tribe, 
 18 Bea. 215 ; Shovelton v. Shovelton, supra. 
 
 On default of appointment the Court will exercise the Default of 
 power : Harding v. Glyn, 1 Atk. 469 ; Brown v. Higgs, ment." 
 8 Ves. 561, 572. 
 
 The shares of married daughters may in such a case be Limiting 
 properly limited to their separate use : Willis v. Kymer, separate 
 7 Ch. D. 181. ^'^• 
 
 If the precatory words clearly raise a trust for the yested 
 
 "1 "" 111 • interest on 
 
 children to take effect on the donees death, the trust is trustee's 
 a vested interest in the children subject to the life estate : ■ 
 
 Pierson v. Garnet, 2 B. C. C. 38 ; Crockett v. Crockett, 2 
 Ph. 553, 5 Ha. 326 ; Newill v. Fewill, 7 Ch. 253 ; and see 
 Lewis V. King, 2 B. C. C. 600 ; Malim v. Keighley, 2 
 Ves. Jun. 529 ; and see Horiuood v. West, 1 S. & S. 387 ; 
 Armstrong v. Armstrong, 7 Eq. 518. Cunliffe v. Cunliffe, 
 Amb. 686, has been doubted, if not overruled. 
 
 But where the donee and the children are described Donee and 
 
 11 children 
 
 together as objects ot the precatory trust, and no contrary taking as 
 intention appears, they take the property as joint tenants : ^ '''^^^• 
 Jubber v.Jubber, 9 Sim. 503 ; Godfrey v. Godfrey, 11 W. 
 E. 554; Hart v. Tribe, 1~D. J. & Sm. 418; Bibby v. 
 Thompson, 32 Bea. 646 ; Newill v. Newill, 7 Ch. 253. 
 
CHAPTER XL 
 
 OF EESULTING TRUSTS. 
 
 Land de- 
 vised in 
 aid of per- 
 sonalty. 
 
 Fee undis- 
 posed of. 
 
 Fund set 
 apart for 
 annuities. 
 
 Resulting Trust arising from Imperfect Disposition. 
 
 Where the whole legal interest is given by devise or 
 bequest for the purpose of satisfying trusts expressed, and 
 those trusts do not exhaust the whole, so much of the 
 beneficial interest as is not exhausted results to the heir 
 or next of kin. But where the whole legal interest is 
 given for a particular purpose with an intention to give 
 to the devisee or legatee of the legal estate the beneficial 
 interest, if the whole is not exhausted by that particular 
 purpose, the surplus goes to the devisee or legatee, as it 
 is intended to be given, and there is no resulting trust : 
 King v. Denison, 1 V. & B. 273 ; Hill v. Bishop of Lon- 
 don, 1 Atk. 618 ; Culpepper v. Aston, 2 Ch. Ca. 115, 
 223 ; Roper v. Radcliffe, 9 Mod. 171 ; Cook v. Hutchin- 
 son, 1 Keen, 50. The same principle applies to the case 
 of a grant : Norilien v. Carnegie, 4 Drew. 587. 
 
 According to this principle land devised upon trust to 
 pay debts, &c., in aid of personalty, results if the personalty 
 prove sufficient : Wych v. Packington, 3 B. P. C. 44; Bug- 
 gins V. Yates, 9 Mod. 122. 
 
 Land devised to trustees and their heirs, but without 
 any limitation of the ultimate beneficial fee simple, results 
 to the heir : Hobart v. Suffolk, 2 Vern. 644. 
 
 A fund arising from the sale of land and directed to be 
 set apart to serve annuities, but not itself disposed of, 
 results to the heir : Watson v. Hayes, 5 M. & Cr. 125 ; 
 and see Sherrard v. Harborough, Amb. 165. 
 
KESULTING TJRUSTS. 59 
 
 Mere negative words will not exclude the trust for the Heir not 
 
 ->- cxcludGcl 
 
 heir: Cook y. Duclcenfield, 2 Atk. 566; Fitch v. Weber, by negative 
 6 Ha. 145. "o^''^- 
 
 Nor will a bare intention be allowed to disinherit the Norbybare 
 heir, but only a clear intention to be inferred from the 
 expressions used throughout the will : Hill v. Bishop of 
 London, 1 Atk. 618 ; King v. Denison, 1 V. & B. 273 ; 
 Phillips V. Phillips, 1 M. & K. 649. And even then it 
 must appear distinctly to whom the estate is to go : Dun- 
 nage V. White, 1 J. & W. 583 ; Salter v. Gavamagh, 1 Dr. 
 & Walsh, 686. 
 
 Words of tenderness or importing an intention of ^'/*'.*° 
 
 '^ ° , . relatives. 
 
 bounty towards a relative will have their effect as circum- 
 stances in favour of a beneficial gift as against the 
 resulting trust : Lloyd, v. Spillet, 2 Atk. 148 ; Cook v. 
 Duckinfield, supra ; Coninghar)i v. Mellish, Pr. Ch. 31 ; 
 King v. Denison, 1 V. & B. 273 ; Rogers v. Rogers, 8 P. 
 W. 193 ; Buggins v. Yates, 9 Mod. 122. 
 
 A legacy to the heir is also regarded as an indication ^'^P"? *° 
 of intention to exclude him, not as necessarily rebutting 
 the trust : Starkey v. Brooks, 1 P. W. 390 ; Salter v. 
 Cavanagh, 1 Dr. & Walsh, 684 ; Saltmash v. Barrett, 3 D. 
 F. & J. 279. 
 
 The use of the word "trust " or the description of the Gift 
 devisee as a "trustee" may be met hj the context of the trust." 
 will showing a strong intention to give a beneficial inter- 
 est : Hill V. Bishop of London, 1 Atk. 620 ; Dawson v. 
 Clarke, 15 Yes. 409 ; Cook v. Hutchinson, 1 Keen, 42. 
 
 But the use of such words of trust where no trust is 
 sufficiently declared, affords ground for a strong presump- 
 tion against the trustee being intended to take beneficially, 
 and there is a resulting trust accordingly : Dawson v. 
 Clarke, 18 Ves. 254 ; Morice v. Bishop of Durham, 10 Ves. 
 537 ; Barrs v. Fewkes, 2 H. & M. 60 ; Aston v. Wood, 6 
 Eq. 419. 
 
 So also where the trusts declared are too uncertain : Trusts 
 Stubbs V. Sargon, 3 M. & Cr. 507 ; Kendall v. Granger, 
 5 Bea. 800. 
 
60 
 
 RESULTING TRUSTS— WANT OF CONSIDERATION. 
 
 Or unde- 
 clared. 
 
 Or illegal. 
 
 Or fail. 
 
 Words ap- 
 plicable to 
 personalty. 
 
 Or where the trusts are proposed to be afterwards 
 declared but are not so declared : Emhlyn v. Freeman, 
 Pr. Ch. 541 ; Fitch v. Weher, 6 Ha. 145 ; see Biddulph v. 
 Williams, 1 Ch. D. 203, in which case, however, an 
 appointment of trust funds had been made upon trusts 
 intended to be, but which never were, declared, and 
 evidence was admitted to shew the intention that there 
 should be a resulting trust for those taking under the 
 original settlement ; and it was so held. 
 
 Or where the trusts if carried into effect would be 
 illegal : Tregonvjell v. Sydenham, 3 Dow, 194 ; Gihhs v. 
 liumsey, 2 V. & B. 294. 
 
 Or where the trusts fail : Ackroyd v. Smithson, 1 W. 
 & T. L. C. 949. 
 
 Where a testator in a will of land has used words 
 of limitation applicable to real estate but has declared 
 trusts applicable to personal estate only, the resulting 
 trust enures for the benefit of the heir: Dunnage v. White, 
 1 J. & W. 583; Lloyd v. Lloyd, 7 Eq. 458; Longley v. 
 Longley, 13 Eq. 133. For the cases of resulting trusts 
 arising upon the doctrine of conversion, including the 
 distinction between a devise upon trust and a devise 
 subject to a particular purpose, which are matters arising 
 rather upon the construction of wills than upon the law 
 of trusts proper, see the notes to Ackroyd v. S'mithson, 1 
 W. & T. L. G. 949 ; 1 Jarm. Wills, Ch. xix. ; Theobald, 
 9.5—108. 
 
 Eesulting 
 trust for 
 grantor. 
 
 Exception 
 in case of 
 wife or 
 child. 
 
 Resulting Trusts from Want of Consideration. 
 
 On the ground that a feoffment to a stranger without 
 consideration raised a use in the feoffor, where no other 
 trust was declared, a grant or lease to a stranger without 
 consideration results to the grantor or lessor : Norfolk v. 
 Brown, Pr. Ch. 80 ; Warman v. Seaman, 2 Free. 308 ; 
 Orey v. Grey, 2 Swans. 598. 
 
 A grant to a wife or child is taken to intend an ad- 
 vancement, and no trust results to the grantor in that 
 
EESDLTING TRUSTS — PURCHASE IN CHlLC's NAME. 61 
 
 case : Grey v. Grey, 2 Swans. 598; Christ's Hospital v. 
 Budgin, 2 Vern. 683 ; see infra. 
 
 A nominal consideration in the case of a grant to a Nominal 
 stranger -will not avail to rebut the resulting trust ; Scul- j™^'''"'^^' 
 thorp V. Burgess, 1 Ves. Jun. 92. 
 
 Securities and money simply made over without consi- Gift of 
 deration must be taken to have been given absolutely "'""'^y' ^'^■ 
 unless such an inference can be rebutted : George v. 
 Howard, 7 Price, 651, and see ante, ch. vii., on Volun- 
 tary Trusts. 
 
 Resulting trusts are unaffected by the Statute of Resulting 
 Frauds, which enacts that where any conveyance shall „™ers. 8 
 be made of any lands or tenements by which a trust or °^ Statute 
 confidence shall or may arise or result by the implication 
 or construction of law, or be transferred or extinguished 
 by an act or operation of law, then and in every such case 
 such trust or confidence shall be of the like force and 
 effect as the same would have been if this Act had not 
 been made : 29 Car. 2, c. 3, s. 8. 
 
 Parol evidence may therefore be given to rebut a re- Parol 
 suiting trust: Laniplugh v. Lamplugh, 1 P. W. 112; ^"''«™® 
 BeUasis v. Coinpton, 2 Vern. 294. 
 
 But it is admissible only where the trust arises from not against 
 presumption of law — not to override the expressed inten- in^nyor. 
 tion of an instrument : Langham v. Sand ford, 19 Ves. 
 643 ; Gladding v. Yapp, 5 Madd. 59. 
 
 Exdusimi of Resulting Trust on purchases in the Name 
 of a Child or Wife. 
 
 A purchase of real or personal property whether in pos- Purchase 
 session or reversion, by a parent or one in loco parentis, or ^-ife's^ 
 in the name of a child or adopted child, or by a husband ^^^^ '^ 
 in the name of his wife, is prima facie an advancement, mentm- 
 and does not raise a resulting trust for the purchaser, l^^^T 
 unless the presumption of an advancement be rebutted bv 
 proper evidence to the contrary : Byer v. Dyer, 2 Cox, 92 ; 
 Finch V. Finch, 15 Ves. 43; Currant v. Jago, 1 Coll. 
 
C2 
 
 EESULTING TRUSTS — PUECHASB IN CHILD S NAME. 
 
 Property 
 contracted 
 to be pur- 
 chased. 
 
 Death 
 before com- 
 pletion. 
 
 Receipt of 
 rents by 
 purchaser 
 no rebut- 
 tal: 
 
 unless 
 coupled 
 with other 
 acts of 
 ownership. 
 
 Advance- 
 ment good 
 
 purchasers. 
 
 But not 
 
 against 
 
 creditors. 
 
 Lifehold 
 copyholds ; 
 father a 
 cestui q^ue 
 vie ; 
 where 
 father not 
 a cestui 
 que vie ; 
 successive 
 interests. 
 
 261 ■; Lamplugk v. Lamplugh, 1 P. W. Ill; Kingdon 
 V. Bridges, 2 Vera. 67, and the cases cited below. 
 
 The presumption of advancement will attach to pro- 
 perty agreed to be purchased : Redington v. Redington, 
 3 Ridg. P. C. 106 ; Vance v. Vance, 1 Bea. 605 ; Drew v. 
 Martin, 2 H. & M. 130 ; and see Nicholson v. Mulligan, 
 I. R. 3 Eq. 308. 
 
 In which case the estate of the purchaser is liable, 
 Ihid. ; and see Croshie v. McBoual, 13 Ves. 148 ; SUd- 
 viore V. Bradford, 8 Eq. 134. 
 
 The receipt of rents, or dividends, or interest, by the 
 father by the permission of the son, whether an infant or 
 adult, is of no avail to make the son a trustee ; Mumma 
 V. Mumma, 2 Vera. 19 ; Gorge's Case, cited Cro. Car. 
 550 ; Taylor v. Taylor, 1 Atk. 386 ; Grey v. Grey, 2 
 Swans. 594 ; George v. Howard, 7 Price, 651 ; Sidmouth 
 V. Sidmouth, 2 B. 447 ; Christy v. Courtenay, 13 Bea. 
 96 ; Beecher v. Major, 2 Dr. & Sm. 431 ; Williams v. 
 Williams, 32 Bea. 370 ; Batstone v. Salter, 19 Eq. 250, 
 aff. 10 Ch. 431 ; but see Loyd v. Read, 1 P. W. 606. 
 
 But coupled with other acts of ownership, the receipt 
 of rents or dividends will help to show that no advance- 
 ment was intended : Murless v. Franklin, 1 Swans. 13 ; 
 Grey v. Grey, supra; Stock v. McAvoy, 15 Eq. 55. 
 
 A purchase by way of advancement is not within 27 
 Eliz. c. 4; Gorge's Case, Cro. Car. 550 ; Glaisterw. Hewer, 
 8 Ves. 195 ; Drew v. Martin, 2 H. & M. 130. 
 
 But it is within 13 Eliz. c. 5, so as to be a ground for 
 an inquiry as to the parent's solvency at the time : Town- 
 send V. Westacott, 2 Bea. 340 ; 4 Bea. 58 ; Christy v. Cour- 
 tenay, 13 Bea. 96 ; but see Drew v. Martin, supra. 
 
 If the purchase be of copyholds for lives, and the father 
 put in the lives of himself, his wife, and his son, the son 
 takes beneficially : Dyer v. Dyer, 2 Cox, 92. 
 
 The fact that the father does not put in his own life is 
 not enough to countervail the rule: Finch v. Finch, 15 
 Ves. 43 ; Murless v. Franklin, 1 Swans. 13. 
 
 And sons advanced take successive : Ihid. ; Rundle v. 
 
RESULTING TRUSTS — PURCHASE IN CHILD S NAME. 63 
 
 Bundle, 2 Vern. 264; Jeans v. Cooke, '2i> Bea. 513; and 
 see note to Withers v. Withers, Amb. 151. 
 
 A custom in a manor that the persons for whose lives a Custom to 
 grant is made should take beneficially, will not be good j™*^^^ 
 against a resulting trust : Lewis v. Lane, 2 M. & K. 449. 
 
 In the case of a purchase of freeholds in the joint Purchase 
 names of the father and son, in the absence of fraud, the JJ^^°g°of 
 trust is equally rebutted by the relationship : Scroope v. fatlier and 
 Scroope, 1 Ch. Ca. 27 ; Back v. Andrew, 2 Vern. 120; 
 Pole V. Pole, 1 Ves. Sen. 76 ; see Sugd. V. & P. 705 ; and 
 see Stileman v. Ashdoiun, 2 Atk. 477, where there was 
 fraud. 
 
 A previous complete advancement rebuts the presump- iiebuttal 
 tion ; as where the son was provided for on his marriage : ^y pi"«'''"'us 
 Ulliot V. Elliot, 2 Ch. Ca. 231 ; Grey v. Grey, 2 Swans, ment. 
 594 ; and see Hepworth v. Hepworth, 11 Eq. 10. 
 
 Secus where there has been only partial advancement : Not by 
 Redinqton v. Eedinqton, 3 Ridg. 190; Grey v. Grey, P^r'ia'ad- 
 
 ^ i^ ' fD T ij jy vancement. 
 
 Finch. 338 ; Hepworth v. Hepworth, 11 Eq. 10. 
 
 An insurance on the life and in the name of a son, Insurance 
 though it may be illegal on the ground that the father "^g^""^^ 
 had no insurable interest, may, if paid, enure to the 
 father if the facts shew no intention of advance- 
 ment : Worthinglon v. Curtis, 1 Ch. D. 419, where the 
 company paid notwithstanding the illegality. 
 
 Where a father transfers Consols into the names of his Intention 
 two daughters under circumstances shewing that he did control of 
 not mean to part with the control of the fund, or that he property. 
 did it to save- legacy duty, the balance and accretions 
 at his death are part of his estate : Bone v. Pollard, 24 
 Bea. 283. 
 
 A purchase in the name of a son in order to give him Purchase 
 a vote may be treated as a benefit only, and not in fraud ■^g^^g ^^ ^j^^ 
 of the law : May v. May, 33 Bea. 81 ; and see Childers v. s™- 
 Childers, 1 D. & J. 482 ; Groves v. Groves, 3 Y. & J. 163. 
 
 Property transferred by a husband into the name of his Transfer 
 wife raises a presumption that it is intended as a gift, of husband 
 subject to such marital control as he may exercise. ^^^ ^i^®- 
 
64 
 
 EESULTING TRUSTS — PUBCHASE IN (JHTLD S NAME. 
 
 Survivor- 
 ship. 
 
 Addition of 
 stranger's 
 name. 
 Intention 
 to benefit 
 wife re- 
 butted. 
 
 Transfer 
 of bank 
 account for 
 conve- 
 nience. 
 
 Payment to 
 her ac- 
 count. 
 
 To trustees 
 only with- 
 out notice 
 to them. 
 
 Election, 
 where hus- 
 
 same stock 
 by will. 
 
 Deceased 
 
 wife's 
 
 sister. 
 
 Invest- 
 ment by 
 mother in 
 child's 
 name. 
 Joining 
 
 If he invests in the names of himself and his wife 
 jointly it is an advancement to her only if she .survive, 
 and if she dies it reverts to him as surviving joint 
 tenant : Bummer v. Pitcher, 2 M. & K. 262 ; Talbot v. 
 Cody, I. R. 10 Eq. 146 ; JRe Eylnjoi, 6 Ch. D. 115. 
 
 The fact that a stranger's name is added makes no dif- 
 ference : Re Eyhyn, supra. 
 
 But if a trust for another be expressed by him at the 
 time, though not declared on account of the banker's ob- 
 jection to notice it, the husband's acquiescence in leaving 
 the property in the joint names of himself and his wife, 
 does not create an advancement for her : Smith v. Warde, 
 15 Sim. 56. 
 
 So also a mere transfer of his banking account into the 
 joint names for convenience, as if he is in failing health, 
 does not constitute an advancement : Marshal v. Crut- 
 well, 20 Eq. 328 ; but see Batstone v. Salter, 19 Eq. 250. 
 10 Ch. 431 ; Lloyd v. Pughe, 8 Cb. 88. 
 
 Nor does payment by the husband to the wife's ac- 
 count : Lloyd v. Pughe, 8 Ch. 88. 
 
 Where the husband invests funds in the names of the 
 trustees of his settlement, but does not give them notice 
 of it, such funds will be held to be an augmentation of 
 the trust property : Re Curteis, 14 Eq. 217 ; but see 
 Re Eyhyn, supra. 
 
 -Where the husband, after a purchase of stock in the 
 joint names of himself and his wife, makes a will, it must 
 clearly appear from it that he intended to pass the same 
 stock in order to raise a case of election against the wife : 
 Bummer v. Pitcher, 2 M. & K. 262. 
 
 In the case of a deceased wife's sister with whom the 
 donor has gone through the ceremony of marriage, or a 
 mistress, the case of advancement fails : Soar v. Foster, 4 
 K. & J. 152 ; and see Rider \. Kidder, 10 Ves. 360. 
 
 A widow investing in the joint names of herself and 
 her child is taken to intend an advancement : Sayre v 
 Hughes, 5 Eq. 376. 
 
 And a transfer including the daughter and her husband 
 
EESULTINa TEUSTS — PURCHASE IN CHILD's NAME. 65 
 
 does not rebut the presumption of advancement, as it is husband of 
 unlikely that the husband would be joined if no benefit ^"^ 
 was intended for the daughter : Batstone v. Salter, 19 
 Eq. 250, 10 Ch. 431. 
 
 But it is otherwise where the mother is living apart Mother 
 from her husband ; Re De Visme, 2 D. J. & S. 17. apart! 
 
 Where the son acts as the solicitor of the parent the Son in a 
 onus is thrown upon him to prove that a trust was not relation to 
 intended : Garrett v. Wilkinson, 2 D. G. & S. 244. p^'^^''*- 
 
 A purchase in the name of another towards whom the Purchaser 
 purchaser places himself in loco parentis is primd facie parentis. 
 an advancement : Ehrand v. Dancer, 1 Coll. 265, n. ; 
 Currant v. Jago, ibid. 261 ; Forrest v. Forrest, 13 W. R. 
 380 ; and see Kilpin v. Kilpin, 1 M. & K. 642. 
 
 As to the circumstances and evidence to shew an inten- Y^<> is 
 tion to adopt a child, see Powys v. Mansfield, 3 M. & Cr. parentis. 
 359 ; Fym v. Lockyer, 5 M. & Ci-. 29 ; Rogers v. Soutten, 
 2 Keen, 598 ; FowJees v. Pasooe, 10 Ch. 343. 
 
 A person may be in loco parentis to, and advance his Purchase 
 
 . _, „ ,™ name of 
 
 brother by a purchase in his name: Joorrest v. Jborrest, a brother. 
 swpra. 
 
 Or grandchildren after the death of the father ; Ehrand Grand- 
 V. Dancer, supra ; Swallow v. Binns, 1 K. & J. 417. 
 
 Or a nephew or niece : Currant v. Jago, swpra ; Nephews 
 Beecher v. Major, 2 Dr. & Sm. 431 ; aff. 13 W. E. 853. "'"'^ ''''°''" 
 
 Illegitimate children may take beneficially under the ^'^^'J^^^ 
 rule if there have been a recognition and filial treatment: 
 Kilpin V. Kilpin, 1 M. & K. 542 ; Beckford v. Beckford, 
 Lofft, 490; but see Tucker v. Burrow, 2 H. & M. 515. 
 
 If a trust is intended it is advisable that such intention Intention 
 be embodied in some instrument at the time : Grey v. should be 
 Gre^/, 2 Swans. 594. e^^--<i^_ 
 
 The evidence admissible to prove a trust must consist Evidence 
 of acts and declarations of the parent antecedent to, or «* ^ trust 
 
 . , must be 
 
 contemporaneous with, the purchase, as subsequent acts antecedent 
 or declarations will not be taken into account : Murless v, " °°°'f"" 
 Franklin, 1 Swans, 13 ; Redington v, Redington, 3 Ridg, 
 194 ; Sidmouth v, Sidmouth, 2 Bea. 447 ; Dumper y, 
 
66 
 
 RESULTING TRUSTS —PURCHASE IN STRANGER S NAME. 
 
 Letter, 
 
 After death 
 of father 
 and son. 
 
 Evidence 
 of nominees 
 received. 
 
 Subsequent 
 will. 
 
 Prior will. 
 
 Kescr^'a- 
 tion of life 
 interest. 
 
 Surrender 
 to use of 
 wUl. 
 
 Mortgage 
 or lease by 
 father. 
 
 Dumper, 3 Giff. 583 ; Nicholson v. Mulligan, I. E. 3 Eq. 
 817 ; Christy v. Courtenay, 13 Bea. 96 ; Devoy v. Devoy, 
 3 Sm. & G. 403 ; Forrest v. Forrest, 13 W. E. 381 ; Jeans v. 
 Cooke, 24 Bea. 513 ; Williams v. Williams, 32 Bea. 370. 
 
 Where the inteDtion to advance is expressed by a letter 
 of even date -with the purchase, it is not rebutted by a 
 power of attorney to the father to sell, but operates like a 
 voluntary settlement with a power of revocation : Beecher 
 V. Major, 2 Dr. & Sm. 431. 
 
 If both father and son are dead, only declarations 
 against interest by either are admissible : Stock v. 
 McAvoy, 15 Eq. 55. 
 
 The evidence of the person claiming the benefit will 
 be admitted iii the action, and be weighed according to 
 the ordinary rules as to interested witnesses : Nicholson v. 
 Mulligan, I. E. 3 Eq. 308 ; Fowhes v. Pascoe, 10 Ch. 343. 
 
 A will devising a property purchased in the name of a 
 son and made after it, will not alter the presumption of 
 advancement : Dyer v. Dyer, 2 Cox, 92 ; Willia/ms v. 
 Williams, 32 Bea. 370. 
 
 But a prior will giving a benefit to the donee is evi- 
 dence in his favour : Deacon v. Colquhoun, 2 Drew. 21. 
 
 A proved intention of the father to reserve a life in- 
 terest, or to give a mere interest contingent on surviving 
 him, is a circumstance which may rebut the gift : Smith 
 V. Warde, 15 Sim. 56 ; Forrest v. Forrest, 13 W. E. 380 ; 
 Dumper v. Dumper, 3 Giff. 583. 
 
 A surrender by the father to the uses of his will repels 
 the theory of advancement : Pranherd v. Prankerd, 1 S. 
 & S. 1 ; but see Beecher v. Major, 2 Dr. & Sm. 431. 
 
 Where the father mortgages or leases after the pur- 
 chase, that will not avail against the son's title : Back v. 
 Andrew, 2 Vern. 120 ; Murless v. Franklin, 1 Swans. 13. 
 
 Resulting Trust arising from Purchases Effected in the 
 Name of Strangers. 
 
 Turctase " The trust of a legal estate, whether freehold, copyhold 
 
 estate in °^' leasehold ; whether taken in the names of the pur- 
 
RESULTING TRUSTS — PURCHASE IN STRAKGEr's NAME. 67 
 
 chasers and others jointly, or in the names of others with- another's 
 out that of the purchaser ; whether in one name or several ; raises a 
 whether jointly or successive — results to the man who ad- Resulting 
 vances the purchase-money ; " unless such resulting trust j^g rebuttal 
 be rebutted by evidence : Redington v. Redington, 3 Eidg. ty evi- 
 P. C. 178 ; Dyer v. Dyer, 2 Cox, 92 ; Withers v. Withers, ''™''' 
 Amb. 151, n. ; Smith v. Baker, 1 Atk. 385. 
 
 Personal property is also subject to the rule : Sidmouth The same 
 V. Sidmouth, 2 Bea. 454 ; Garrick v. Taylor, 29 Bea. 79 ; ^naity!"' 
 aff. 7 Jur. N. S. 1174 ; ^eecAer v. il/cty'or, 2 Dr. & Sm. 431. 
 
 If the object of making the purchase in the name of Secus, if 
 another be illegal or prohibited by statute, a trust will not ?j^^g°* 
 result : Fxp. Houghton v. Houghton, 17 Ves. 251 ; Red- 
 ington V. Redington, supra ; Camden v. Anderson, 5 
 T. E. 709 ; Groves v. Groves, 3 Y. & J. 163 ; but see May 
 V. 3Iay, 33 Beav. 81 ; Childers v. Childers, 3 K. & J. 310 ; 
 1 D. & J. 482 ; and see Holderness v. Lamport, 29 Bea. 
 129 ; Barton v. Muir, L. E. 6 P. C. 134. 
 
 The rule applies where the purchase-money is paid by Purchase 
 several, and the conveyance taken in the name of a single in nam™o£ 
 nominee : Wray v. Steele, 2 V. & B. 388. <"'e. 
 
 Though the nominee execute no declaration of trust, Absence of 
 the resulting trust may be established against the nominal ^f trust. 
 purchaser ; Ryall v. Ryall, 1 Atk. 59. If he allege a gift 
 to him the onus is on him to prove that he from whom the 
 consideration moved did not intend a trust for himself: 
 Redington v. Redington, 3 Eidg. P. C. 178. 
 
 And in that case it cannot be proved after the death of Proof of 
 the nominee, except by a declaration in his lifetime : Lloyd nominee^s 
 V. Spillet, 2 Atk. 150, n. ; Ambrose v. Ambrose, 1 P. W. "rreai 
 
 „«,^ n -t-r r, T^ i^n-. purchasBr 3 
 
 321 ; Sugden, V. & P. 701. death. 
 
 And a trust may be proved though the consideration is False state- 
 stated to have been paid by the gi-antee, when in fact it payment 
 was not : Ryall v. Ryall, 1 Atk. 69 ;• Willis v. Willis, 2 in deed. 
 Atk. 71 ; Bartlett v. Pichersgill, 1 Ed. 516 ; Groves v. 
 Groves, 3 Y. & J. 163. 
 
 The poverty of the nominee may be put in evidence to Evidence 
 show that he could not have paid the purchase-money ; poverty,'''^ ' 
 
 p 2 
 
08 
 
 EEStLTIlTG TEtJSTS — PURCHASE IN STRANGERS NAME- 
 
 Parol evi- 
 dence to 
 prove who 
 paid, 
 
 or of 
 
 payor's 
 
 iatention. 
 
 Kesulting 
 rebutted 
 by express 
 trust. 
 
 Denial on 
 oath of 
 trust by 
 nominee. 
 
 Rohuttal 
 as to part 
 of estate. 
 
 Purchase 
 made with 
 borrowed 
 money. 
 
 Purchase 
 by and con- 
 veyance to 
 agent in 
 his own 
 name. 
 
 Absence of 
 conveyance 
 to agent 
 in such 
 case. 
 
 Willis V. Willis, 2 Atk. 71 ; Ryall v. Ryall, cited Arab. 
 412 ; and see Lench v. Lench, 10 Ves. 511. 
 
 Clear parol evidence aliunde, that^he grantee did not 
 pay the price, but that it was paid by another, is admis- 
 sible : ■ Gascoigne v. Thwing, 1 Vern. 366 ; Willis v. Willis, 
 supra ; Smith v. Wilkinson, cited 3 Ves. 705 ; and see 
 Garrick v. Taylor, 29 Bea. 79 ; Fowkes v. Pascoe, 10 Ch. 
 348. 
 
 And the intention of the payor at the time of the pay- 
 ment of the purchase-money may be proved in a similar 
 manner : Beacon v. Golquhoun, 2 Dr. 21 ; Groves v. Groves, 
 3 Y. & J. 163, 172 ; and see cases in last paragraph. 
 
 Whei-e there is a parol expi-ess trust of the purchase- 
 money the resulting trust is rebutted : Bellasis v. Comp- 
 ton, 2 Vern. 29 1 ; Lloyd v. Spillet, 2 Atk. 150, n ; Rider v. 
 Kidder, 10 Ves. 360 ; Ay erst v. Jenkins, 16 Eq. 275. 
 
 But the nominee's denial of it on oath, e.g., in answer to 
 interrogatories, cannot be met by parol evidence to the con- 
 trary : Skett V. Whitmore, 2 Free. 280 ; but see Gascoigne 
 v. Thwing, supra ; Cooth v. Jackson, 6 Ves. 89. 
 
 The trust may be rebutted as to part of the estate pur- 
 chased : Lloyd v. Spillet, 2 Atk. 150; Benbow v. Towns- 
 end, 1 M. & K. 506 ; Wray v. Steele, 2 V. & B. 388. 
 
 Where the purchase has been made with borrowed 
 money, and without a declaration of trust, the lender will 
 not be entitled to the benefit of a resulting trust : Aveling 
 V. Knife, 19 Ves. 445 ; Re Cooke, 6 Ir. Ch. E. 430, which 
 Lord St. Leonards calls a very hard case, V. & P. 703 ; and 
 see Denton v. Davies, 18 Ves. 499. 
 
 An agent verbally appointed to buy, who pays the money 
 and takes a conveyance to himself, is not a trustee for his 
 principal : Bartlett v. Pickersgill, cited Burr. 2255 ; Re 
 Inskip, 3 Giff. 359. 
 
 But this is not the case where there has been no convey- 
 ance to the agent : Heard v. Pilley, 4 Ch. 548, in which 
 Bartlett v. Pickersgill was disapproved ; and ^qq Re Inskip, 
 3 Giff. 359 ; Gave v. Mackenzie, 46 L. J. Ch. 564 ; Chat- 
 tock V, Muller, 8 Ch. D. 177, 
 
RESULTING TRUSTS — JOINT PURCHASERS. 69 
 
 Delay by the claimant under a resulting trust will de- Acquies- 
 prive him of his right to enforce it : Delane v. Delane, 7 °'°°^' 
 B. P. C. 279. 
 
 Resulting Trust arising from Joint Purchases. 
 
 A conveyance or assignment to the purchasers jointly, Resulting 
 at law creates a joint tenancy ; but if the price be paid a^oinr"" 
 in unequal shares a tenancy in common is considered in purchase. 
 equity to be created, and the survivor is a trustee for the 
 others in proportion to the amount advanced by each of 
 them ; Lahe v. Qihson, 1 Eq. Ca. Ab. 290, pi. 3, 1 W. & T. 
 L. C. 198. 
 
 The inequality in the sums advanced should appear in How iu- 
 the deed itself, or at least in the original or some sub- of shares 
 sequent agreement, and be not merely a temporary °t'^^h'^ 
 arrangement at the time of the completion of the pur- appear, 
 chase : Dart. V. & P. p. 924, 5th ed. citing Wood v. Birch, 
 Sugd. V. & P. p. 700; and Aveling v. Knipe, 19 Ves. 
 445 ; and see Hill v. Hill, I. R. 8 Eq. 146. 
 
 It seems that if one pays more than his share of the Where one 
 price, he can maintain an action for contribution against than Ms 
 the co-owners : Sugd. V. & P. 700, where are found sug- ^''^''«- 
 gestions for assuring repayment ; and see Doe v. King, 6 
 Exch. 791. So also if one co-owner takes an undue share 
 of the rents : Henderson v. Eason, 17 Q. B. 701 ; 2 Ph. 
 308. 
 
 A joint mortgage, however, even if the money be ad- Joint mort- 
 vanced in equal shares, will result for the benefit of the 
 executors of mortgagee who dies, according to his share 
 of the debt : Petty v. Styward, 1 Ch. Rep. 31 ; Robinson 
 V. Preston, 4 K. &, J. 505 ; Morley v. Bird, 3 Ves. 631 ; 
 Vickers v. Cowell, 1 Bea. 529 ; Anon. Carth. 15 ; Matson 
 V. Denis, 12 W. R. 596. 
 
 An equity of redemption purchased in the same way by I'™<'li^e 
 mortgagees, will be subject to the same rule : Edwards redemption 
 V. Fashion, Prec. Cb. 332; Rigden v. Vallier, 2 Ves. ^^4°^* 
 Sen, 258. gagees. 
 
 Circumstances may occur eyen T^here the price is paid, Trust may 
 
70 
 
 RESULTING TRUSTS— JOINT PUIICHASERS. 
 
 be shown 
 where 
 money ad- 
 vanced 
 equally. 
 
 Lien and 
 trust as to 
 money 
 spent by 
 a joint 
 owner in 
 repairs, &c. 
 
 What lien 
 attaches to. 
 
 Trust 
 arising 
 upon part- 
 nership 
 ventures. 
 
 Eeason of 
 the sale. 
 
 Where sale 
 contem- 
 plated by 
 articles. 
 
 or the money advanced, in equal shares, to show that a 
 tenancy in common with the resulting trust should arise : 
 liobinson v. Preston, 4 K. & J. 505 ; Morris v. Barrett, 
 3 Y. & J. 384 :— 
 
 As where the money arises from rents of lands held 
 in common : Ibid. 
 
 Where the deed contains a declaration that the money 
 invested is to be held by the purchasers as tenants in 
 common : Ibid.; ifatson v. Denis, supra. 
 
 Or where by will the parties treat their shares as 
 several and not joint : Robinson v. Preston, supra; and 
 see Harrison v. Barton, 1 J. & H. 287. 
 
 If one of the joint purchasers spends money in repairs 
 or improvements, and dies, his estate has a lien on the 
 land, and the others are tru.stees for him in reispect 
 thereof: Lake v. Gibson, supra; Hamilton v. Denny, 
 1 B. & B. 199. 
 
 This lien is on the property, and not on the shares of 
 the other co-owners : Kay v. Johnston, 21 Bea. 536. 
 
 In all cases of a joint undertaking or partnership either 
 in trade or any other dealing, joint purchasers are con- 
 sidered as tenants in common, or the survivors as trustees 
 for those who are dead : Lake v. Gibson, supra ; Lake v. 
 Graddock, 9 Ves. 597 ; Jeffereys v. Small, 1 Vern. 217 ; 
 Elliot V. Brown, 3 Swans. 489 ; Lyster v. Dolland, 1 Ves. 
 Jun. 431 ; Jackson v. Jackson, 9 Ves. 596 ; Dale v. 
 Hamilton, 5 Hare, 369 ; Clements v. Hall, 2 D. & J. 173 ; 
 and see Pollock, Digest of the Law of Partnership, Arts. 
 28, 29, 56 ; 1 Lindley, 687, et seq. 
 
 The rule is founded on the principle that on the dis- 
 solution of the partnership all the property belonging to 
 the partnership shall be sold, and the proceeds of the sale, 
 after discharging the debts, shall be divided among the 
 partners according to their respective shares : Darby v. 
 Darby, 3 Drew. 495. 
 
 Thus if a sale is contemplated by the articles, real pro- 
 perty is converted for all purposes, and the heir is ousted : 
 Ibid. ; Crawshay v. Maule, 1 Swans. 508 ; Houghton v, 
 
RESULTING TRUSTS — JOINT PUECHASERS. 71 
 
 Houghton, 11 Sim. 491 ; Wild v. Milne, 26 Bea. 504 ; 
 Bank of England Case, 3 D. F. & J. 645 ; Forbes v. 
 Steven, 10 Eq. 178; Waterer v. Waterer, 15 Eq. 402. 
 
 But if a married woman be one of the co-owners and ^^^^ "°* 
 her share of the land and accretions are settled from time plated. 
 to time by deeds not contemplating a sale, there will be 
 no conversion : Steward v. Blaheway, 4 Ch. 609. 
 
 The right of the survivor may be rebutted by evidence Evidence 
 of acts such as occurred in Robinson v. Preston, 4 K. & g°^'^o'. 
 J. 505 ; Morris v. Ba,rrett, 3 Y. & J. 384, see above ; and ship, 
 see BanJc of England Case, 3 D. F. & J. 646. 
 
 See further on the effect of a joint purchase, other than 
 the resulting trust which may arise from it, Sugd. V. & P. 
 697—701; Dart, V. & P. 923—929, and the notes to 
 LaJce V. Gibson, 1 W. & T. L. C. 198. 
 
CHAPTER XII. 
 
 OF CONSTRUCTIVE TRUSTS. 
 
 Construc- 
 tive trust ; 
 what it is. 
 
 Limits of 
 construc- 
 tive trust. 
 
 A CONSTRUCTIVE tru.st is one raised by construction of 
 equity, in a man who would otherwise, by the transactions 
 hereinafter mentioned, obtain for himself an undue ad- 
 vantage at the expense of others. See Lewin, 93 n. (I) ; 
 Aberdeen Town Council v. Aberdeen University, L. R. 2 
 App. Ca. 544. 
 
 With regard to the limits of the constructive trust thus 
 defined, it is to be observed that " strangers are not to be 
 made constructive trustees merely because they act as the 
 agents of trustees in transactions within their legal powers, 
 transactions perhaps, of which a Court of Equity may 
 disapprove, unless those agents receive or become charge- 
 able with some part of the trust property, or unless they 
 assist with knowledge in a dishonest and fraudulent 
 design on the part of the trustees " : Barnes v. Addy, 
 9 Ch. 251. See further on this point infra, and Index 
 sub tit. "Agent." 
 
 Construc- 
 tive trust 
 after con- 
 tract for 
 
 Devise of 
 estate sold, 
 
 The vendor of an estate is a constructive trustee for the 
 purchaser from the moment a valid contract is entered 
 into : Lysaght v. Edwards, 2 Ch. D. 510, 517, explaining 
 WaU V. Bright, 1 J. & W. 494 ; and see Hadley v. Ban]c 
 of Scotland, 3 D. J. & Sm. 70 ; Rose v. Watson, 10 H. L. 
 C. 678 ; McCreight v. Foster, 5 Ch. 604 ; Shaw v. Foster, 
 L. R. 5 H. L. 321 ; and see Tasker v. Small, 3 M. & 
 Cr. 70. 
 
 An estate contracted to be sold will therefore pass 
 
OONSTRUCTIVB TRUSTS — RENEWAL OF LEASES. 73 
 
 under a devise by the vendors of trust estates: Lysaght 
 V. Edwards, 2 Ch. D. 499 ; see ante, p. 22 ; and see Exp. 
 Rabbidge, 8 Ch. D. 367. 
 
 After a contract and befoi'e conveyance, the vendor as Liability of 
 
 . n vendor 
 
 such constructive trustee for the purchaser, is trustee oi ^^^^^ ^^^. 
 the rents and increase, and liable for voluntary waste or t™<:t. 
 deterioration of the estate : Acland v. Gaiaford, 2 Mad. 
 32 ; Wilson v. Olapham, IJ. & W. 38. 
 
 A landowner, if not absolutely entitled to the land, Constmo- 
 is not allowed to put into his pocket sums paid for the ^^^^^^ 
 withdrawal of his opposition to a Eailway Bill, and he is ^""l^^ 
 bound to hold them as a constructive trustee for the tenant for 
 inheritance : Pole v. Pole, 2 Dr. & Sm. 420 ; Shrewsbury iif«- 
 V. K Staffordshire Raihuay Co., 1 Eq. 593 ; and see as 
 to moneys received by the tenant for life of a manor for 
 enfranchisement of copyholds, Re Wilson, 2 J. & H. 619 ; 
 32 L. J. Ch. 193. 
 
 Renewal of Leases by Trustees and others. 
 
 Where a leasehold for lives or years is renewed by a ^^""j^^^^g^j 
 trustee, or by a person having a limited interest in it, in owner re- 
 his own name, the Court, on grounds of public policy, will "j^J^tee for 
 not allow him to retain the benefit of the renewal for all parties 
 himself, but holds him to have obtained it as a trustee for 
 those interested in the old lease : Keech v. Sandford, 
 1 W. & T. L. C. 44 {Romford Market Case) ; Holt v. Holt, 
 1 Ca. Ch. 191; Rawe v. Chichester, Amb. 715; Fltzgibbon 
 V. Scanlan, 1 Dow, 261; Eyre v. Dolphin, 2 B. & B. 298; 
 Clegg v. Edmondson, 8 D. M. & G. 787 ; Bradford v. 
 Brownjohn, 3 Ch. 714. 
 
 By Trustees and Executors. 
 
 The rule applies, though the lessor have refused to Renewal 
 renew to the cestui que trust : Keech v. Sandford, supra, c. q. t. 
 
 Or, where the co-trustees have refused to join : Blewett Co-trustees 
 V. Millett, 7 B. P. C. 367- Fng.^""" 
 
74 
 
 CONSTRUCTIVE TRUSTS — RENEWAL OP LEASES. 
 
 Absence of 
 fraud. 
 
 After col- 
 lusive for- 
 feiture. 
 
 Eenewal by 
 executor de 
 son tort. 
 
 By ad- 
 ministra- 
 tor. 
 
 Executor of 
 overbold- 
 ing lessee. 
 
 Executor of 
 tenant at 
 will or by 
 sufferance. 
 
 Expired 
 lease. 
 
 Renewal 
 
 before 
 
 expii-y. 
 
 Eenewal 
 including 
 additional 
 lauds. 
 
 Identity of 
 term and 
 rent. 
 
 And though the party renewing be guiltless of fraud : 
 Ihid. 
 
 Or though by collusion with the lessor the trustee 
 incurs a forfeiture and obtains a renewal; Straiton v. 
 Murphy, I. R. 1 Eq. 345 ; Hughes v. Howard, 25 Bea. 
 575 ; and see Nesbitt v. Tredennick, 1 B. & B. 29 ; Lovatt 
 V. Knipe, 12 Ir. Eq. R 124. 
 
 An executor de son tort cannot, by compelling the 
 actual executors to surrender, obtain a renewal for him- 
 self : Mulvany v. Billon, 1 B. & B. 409. 
 
 Nor will a person, who takes the management of an 
 intestate's affairs under a power of attorney from the 
 mother of an infant next of kin, be allowed to hold a lease 
 renewed in his own name : Griffin v. Grijjfin, 1 Sch. & L. 
 352 : Mulhallen v. Marum, 3 Dr. & W. 317. 
 
 Nor will an administrator be allowed to retain the 
 benefit of such a renewal : Kelly v. Kelly, I. R. 8 Eq. 403. 
 
 An executor obtaining a new lease of lands, of which 
 the testator was overholding tenant from year to year, 
 cannot hold such new lease for himself: James v. Dean, 
 11 Ves. 383; 15 Ves. 236; Archbold v. Scully, 9 H. L. 
 C. 360. 
 
 If the testator in that case had been merely tenant at 
 will or by sufferance, when his tenancy would cease by his 
 death, the executor renewing would probably be a trustee 
 only for the residuary legatee : James y. Dean, 11 Ves. 393. 
 
 The rule applies though the lease have nearly expired : 
 Randall v. Russell, 3 Mer. 196 ; James v. Dean, supra. 
 
 Or, if the new lease is granted before the old one has 
 expired : Ralcestraw v. Breiver, 2 P. W. 511 ; Taster v. 
 Marriott, Amb. 668 ; Owen v. Williams,, ibid. 734. 
 
 Or, if it contain additional lands — the trust attaching, 
 however, only to the original lands, if distinguishable : 
 Giddmgs v. Giddings, 3 Russ. 241, 257; Acheson v. Fair, 
 2 C. & L. 208. See Aberdeen Town Council v. Aberdeen 
 University, L. R. 2 App. Ca. 544. 
 
 And the identity of term and rent is unimportant : 
 James v. Dean, 11 Ves. 383; Mulvany v. Dillon, supra, 
 
CONSTRUCTTVJE TRUSTS — RENEWAL OP LEASES. 75 
 
 By Tenant 'for Life. 
 [See the cases iu the note to Keeoh v. Sandford, 1 W. By tenant 
 
 f iir 1 1 f(^ ' 
 
 & T. L, C. 46 ; and to Taster v. Marriott, Amb. 668.] 
 
 A settlor, having reserved a life estate, cannot avoid the Settlor re- 
 settlement by substituting a new lease for that in settle- estatef 
 ment : Pickering v. Vowles, 1 B. C. C. 197 ; Mill v. Hill, 
 3 H. L. C. 828. 
 
 Nor is a renewal an exercise by him of a general Not exer- 
 power of appointment : Brookman v. Hales, 2 V. & ^g^^,. ^f 
 
 B. 45. appoint- 
 
 ment. 
 
 EeTersion- 
 
 If a tenant for life of leaseholds for lives who is under 
 
 no obligation to renew, take a renewal in his own name, ary lease 
 the grant of reversionary leases to him is subject to the tenant for 
 settlement : Tanner v. Mworthy, 4 Bea. 487 ; and see ''^®- 
 Waters v. Bailey, 2 Y. & C. C. C. 219. 
 It should be observed that a tenant for life is not Obligation 
 
 to r6I1.6W 
 
 obliged to renew, unless the nature of the estate and the 
 
 terms of the will compel him : Nightingale v. Lawson, 1 
 
 B. C. C. 440 ; Stone v. Theecl, 2 B. C. C. 243. [See the 
 
 cases as to contribution to fines, &c., infra, p. 150 et seq.] 
 
 If the tenant for life sell the right of renewal, the money ^<"ieys, 
 . " ,.11 "°''^ ^*'® 
 
 obtained must be held upon the trusts of the settlement : of right to 
 
 Owen V. Williams, Amb. 734. jecTto'"''" 
 
 If a tenant for life of leaseholds, held on a sub-lease, tmsts. 
 purchase the original lease and obtain a renewal, the Tenant for 
 renewed lease will be subject to the trusts, though he may lease buy- 
 have survived the expiration of the underlease: Oiddings J^g original 
 V. Giddings, 3 Euss. 241. 
 
 As the trust is a constructive and not an express trust Trnst 
 in the tenant for life, the 25th sec. of the Statute of "express 
 
 Limitations does not save the rights of the remaindermen: *''."?*." , 
 ^ ° withm sta- 
 
 Fetre v. Fetre, 1 Dr. 371 ; Be Bane, I. E. 5 Eq. 499. tute. 
 
 By Mortgagees. By mort- 
 
 gagees, sub- 
 
 The renewal by a mortgagee is subject to the old equity jeot to old 
 of redemption : Luckinv. Bushworth, 2 Ch. Eep. 59; Sp-^ 
 Makestraw v. Brewer, 2 P. W. 511. tion. 
 
76 
 
 tlONSTJRUOTIVE TKUSTS — RENEWAL OP LEASES. 
 
 Uenewal 
 by moit- 
 gagor. 
 
 By joint 
 lessee. 
 
 Infant 
 
 joint 
 
 lessee. 
 
 By part- 
 ners. 
 
 Duration 
 of partner- 
 ship not 
 important. 
 
 By manag- 
 ing part- 
 ner. 
 
 Notice to 
 co-partners 
 unneces- 
 sary. 
 
 Laches in 
 case of 
 mining 
 partner- 
 ship. 
 
 Acquies- 
 cence in 
 case of ig- 
 norance. 
 
 Trust en- 
 forced un- 
 til pai-tner- 
 ship wound 
 up. 
 
 The mortgagee will have the benefit of a renewal by 
 the mortgagor : Smith v. Chichester, 1 C. & L. 486 ; and 
 see Hughes v. Howard, 25 Bea. 575 ; and Neshitt v. 
 Tredennick, 1 B. & B. 29. 
 
 By Joint Lessee. 
 
 The renewal of a joint lease by one joint lessee enures 
 for the benefit of the others : Palmer v. Young, 1 Vern. 
 276; Hamilton v. Benny, 1 B. & B. 199; Jackson v. 
 Welsh, LI. & G. (Plunk.) 346. 
 
 If one of them be an infant, any loss by the renewal 
 must be borne by him who renews : Exp. Grace, 1 B. 
 & P. 376. 
 
 By Partners. 
 
 Upon the same principle a partner renewing a lease 
 of the partnership premises is a trustee for his partners : 
 Featherstonhaugh v. Fenwick, 17 Ves. 298 ; Clements 
 V. Hcdl, 2 D. & J. 186 ; Clegg v. Edmondson, 8 D. M. & 
 G..787. 
 
 The duration of the partnership, even if it be at will 
 only, does not affect the case : Clegg v. Edmondson, ibid. 
 806. 
 
 The rule would certainly not be departed from where 
 the renewal is taken by a managing partner : Ibid. 807. 
 
 Nor, though notice of an intention to apply for a 
 renewal was given to the other partners : Ibid. 
 
 In the case of mining property, which is of fluctuating 
 value, the application of the rule would depend upon the 
 speedy enforcement of the trust : Ibid. 814 ; Clevfients v. 
 Hall, 2 D. & J. 187. 
 
 Where the representative of a deceased partner was 
 kept in ignorance of his rights, the Court would not test 
 hia acquiescence upon this principle : Clements v. Hall, 
 swpra. 
 
 And the claim to the benefit of the renewal may be 
 made so long as the duty of winding up the partnership 
 remains unfulfilled: Clegg v. Fishwick, 1 McN. & G-. 300; 
 and see Clements y. Hcdl, 2 D. & J. I73, 
 
COKSTRUCTIVE TRUSTS — RENEWAL OP LEASES. 77 
 
 A partner while negociating for a lease bought the fee ; Partner 
 he was held to have taken the fee as a trustee for the ° 
 
 partnership : Gordon v. Scott, 12 Moo. P. C. 1. 
 
 And a partner must share a premium for taking a lease Partner 
 with his co-partners : Fawcett v. Whitehouse, 1 R. & premkim 
 M. 132. 
 
 Generally. 
 
 A devisee, or assignee with notice, of a leasehold on Devisee or 
 which debts, legacies, annuities, or other incumbrances, ^ftf^otiog 
 are charged, must hold a renewed lease for the persons of charges. 
 interested in those charges, who will not be liable to con- 
 tribute to the expense of renewal : Winslow v. Tighe, 2 
 B. & B. 196 ; StubBs v. Roth, Ibid. 548; Jones v. Kearney, 
 1 Dr. & War. 134, 1 C. & L. 34 ; Lombard v. Hickson, 13 
 I. Ch. R. 98 ; Stone v. Theed, 2 B. C. C. 243 ; Maxwell v. 
 Ashe, 1 B. C. C. C. 444 n : Moody v. Matthews, 7 Ves. 174; 
 Webb V. Lugar, 2 Y. & C. Ex. 247. 
 
 That a purchaser with notice of the constructive trust Or pur- 
 will be liable to it, see Walley v. Walley, 1 Vern. 484 ; f^'J'^'^ 
 Parker v. Brooke, 9 Ves. 583 ; Hyre v. Dolphin, 2 B. & 
 B. 290 ; Lombard v. Hickson, 13 I. Ch. R. 98 ; Mill v. 
 Hill, 3 H. L. C. 828. 
 
 The rule seems not to apply to a renewal by a person Kenewal 
 entitled to the leaseholds under a limitation to himself titled^™' 
 and the heirs of his body : Blake v. Blake,, 1 Cox, 266. himself 
 
 Or, in the case of a renewal granted to a stranger to the of Ms 
 settlement : see Lee v. Vernon, 5 B. P. C. 10 ; Neshitt v. ^°^^- 
 Tredennick, 1 B. & B. 29. to settle" 
 
 And generally in such cases tlie lessee under the new ™^'^*- 
 lease takes subject to all the equities attaching to the old 
 lease, whether it be granted to him or to another through 
 whom he claims : Edwards v. Lewis, 3 Atk. 538. 
 
 But acquiescence may bar the remedy against the con- Acquies- 
 structive trustee : Norris y. Le Neve, ^ Ai\. 38; Clegg v. °™°°' 
 Edmondson, supra; and the cases cited supra on this 
 point as to partners. 
 
 The decree to enforce the constructive trust will include Decree to 
 a direction for 9-ssignment of the new lease on the original construc- 
 tive trust. 
 
78 
 
 CONSTRUCTIVE TKUSTS — RENEWAL OF LEASES. 
 
 Sub-leases 
 since re- 
 newal. 
 Indemnity 
 against 
 covenants. 
 
 Lien for 
 
 Charge for 
 
 improTe- 
 
 ments. 
 
 Tenant fir 
 life cestui 
 que tie. 
 
 When fee 
 purchased. 
 
 title, with an account as to mesne profits : Oiddings v. 
 Oiddings, 3 Euss. 260. 
 
 Eack rent leases bond fide granted since the renewal 
 will stand : Boivles v. Stewart, 1 Sch. & L. 230. 
 
 The constructive trustee may have an indemnity against 
 burdensome covenants in the new lease : Keech v. Sand- 
 ford, 1 W. & T. L. C. 47 ; Giddings v. Giddings, supra. 
 
 Also, a lien on the estate for expenses of renewal and 
 interest : Lawrence v. Maggs, 1 Eden, 4-55, n. ; Rawe v. 
 Chichester, Amb. 720 ; Coppin v. Fernyhough, 2 B. C. C. 
 291 ; James v. Bean, 11 Ves. 383, 396. 
 
 Also, a charge for improvements : Holt v. Holt, 1 Ca. 
 Ch. 190 ; Mill V. Rill, 3 H. L. C. 869 ; even if made after 
 action brought : Walley v. Walley, 1 Vern. 487. 
 
 Where a tenant for life renews, in which case, if also a 
 cestui que vie, he is not able to obtain any benefit from 
 such renewal, he may charge the expenses upon the 
 estate : Verney v. Verney, Amb. 88 ; and with interest : 
 Adderley v. Clavering, 2 B. C. C. 659. 
 
 A constructive trustee, who makes a renewal impossible 
 by acquiring the fee, is bound to give effect to charges on 
 the previously renewable leasehold : Trur)iper v. Trwm- 
 per, 14 Eq. 310 ; aff. 8 Ch. 870. 
 
 The leasehold interest, if not merged, will be first 
 resorted to : Barnes v. Racster, I Y. & C. C. C. 401 ; 
 Trumper v. Trumper, 14 Eq. 31-5 ; 8 Ch. 870. 
 
CHAPTER XIII. 
 
 SECRET TRUSTS. 
 
 A PERSON apparently taking property by devise or Promise by 
 bequest from a testator, with the knowledge of the exist- tes™tor*° 
 ence of another instrument, which he actually or impliedly enforced 
 undertakes to carry into effect, will be fixed as a trustee 
 with the performance of such instructions and directions 
 as are given in that other instrument. But this rule ap- on ground 
 plies only where the Court is persuaded that there has 
 been a fraudulent inducement held out on the part of the 
 apparent beneficiary in order to lead the testator to con- 
 fide to him the duty which he so undertook to perform ; 
 for the jurisdiction in such cases is founded on personal 
 fraud, which must be proved in order to let in a document 
 not executed in the proper testamentary form : McCor- 
 mick V. Grogan, L. R. 4 H. L. 82 ; Norris v. Frazer, 15 
 Eq. 318, 330. 
 
 The fraud in such causes consists in inducing the Nature of 
 testator to leave property to a person to whom no gift 
 would have been made in the absence of the promise to 
 carry out the testator's intention : Russell v. Jackson, 10 
 Hare, 204. 
 
 Where, therefore, a devise is prevented by the under- Right to 
 taking of the heir, devisee, or legatee to do certain acts in ^^^""^^^ 
 favour of others, the apparent donee must discover whether t™st. 
 the undertaking was given, i.e., whether a secret trust was 
 created, and then, on the ground of fraud, such trust will 
 be enforced, notwithstanding the Statute of Frauds, or now 
 the Wills Act, which has superseded the Statute of Frauds 
 in this respect : Thynn v. Thynn, 1 Vern. 295 ; Oldham 
 V. Litchfield, 2 Vern, 506 ; Drakeford v. Wilks, 3 Atk, 
 
80 SECRET TRUSTS, 
 
 53.9 ; Chamberlain v. Chamberlain, 1 Ch. Ca. 256 ; Beech 
 
 V. Kennegal, 1 Ves. Sen. 123 ; MucUeston v. Brovm, 6 
 
 Ves. 69 ; SticJdancl v. Aldridge, 9 Ves. 519 ; Dixon v. 
 
 Olmius, 1 Cox, 414 ; Russell v. Jackson, 10 Ha. 204 ; 
 
 Wallgrave v. TeS^s, 2 K. & J. 313 ; Tee v. Ferris, Ibid. 357 ; 
 
 McCormich v. Grogan, supra, ; Roivbotham v. Bunnett, 8 
 
 Ch. D. 430. 
 Parol evi- Besides the admission of the trustee, the trust may be 
 
 substantiated by other parol evidence : Edwards v. Pike, 
 
 1 Ed. 267. 
 Acceptance Ti^e silence of the donee when the communication of 
 
 of trust . . pp . 
 
 by silence : the testator was made to him, if proved, is a sumcieut 
 indication that he accepted the trust ; Tee v. Ferris, 2 K. 
 & J. 357 ; Springett v. Jenings, 10 Eq. 495. 
 by conduct. And an admission may be made out from the conduct 
 
 of the donee ; McCormich v. Orogan, supra. 
 
 Not made' The knowledge in the donee, which is necessary to fix 
 
 documrat ■'^^ with the trust, must be obtained by him during the 
 
 ■witli -will, testator's lifetime ; it is not permitted to prove a secret 
 
 municated. trust by means of a written document not communicated 
 
 by the testator himself: Wallgrave v. Tebbs, 2 K. & J. 
 
 324 ; Tee v. Ferris, 2 K. & J. 367. 
 
 nor from _^ mere wish or expectation that the donee will perform 
 
 teetator. some act which the testator, fearing that it might not be 
 
 lawful to include the purpose in his will, has left untouched 
 
 by such will, does not affect the donee with a trust : 
 
 Lomax v. Ripley, 3 Sm. & G. 48 ; Rowbotham v. Bunnett, 
 
 8 Ch. D. 430. 
 
 Discretion But a discretion left in the person who undertakes the 
 
 duty will, it seems, not be allowed to defeat the trust in 
 
 toto : Jones v. JS^abbs, 1 Eq. Ca. Abr. 405 ; Kingsman v. 
 
 Kingsman, cited, ibid. ; Barrow v. Greenough, 3 Ves. 151. 
 
 Uuccr- The effect of there being any uncertainty as to the por- 
 
 proljerty ° ^^'^^ °^ ^^^ property which was intended to be bound by 
 
 in trust. the trust, is to throw on the alleged trustees the onus of 
 
 distinguishing that which was to be bound by the trust 
 
 from that which they allege to be unaffected by it : Russell 
 
 V, Jackson, 10 Ha, 214, 
 
SECRET TRUSTS. 81 
 
 And if the object of the trust be legal, but not sufficiently indefinite 
 defined by the testator in the communication of it to the 
 trustee, an inquiry may be had to ascertain its precise 
 character : Ibid. p. 215. 
 
 When it appears that the gift would not have been ■^f°°j^^"''{'' 
 made to one of the donees but for the promise given by donees, 
 the other, it has been held that the fraud avoids the 
 whole gift, upon the principle in Huguenin v. Baseley (14 
 Ves. 273), and that the gift to the person who remained 
 ignorant of the gift till the death is not beneficial : 
 Russell V. Jackson, 10 Ha. 212 ; Garter v. Green, 3 K. & 
 J. 603 ; but see Tee v. Ferris, 2 K. & J. 367. 
 
 A distinction, however, with regard to this point is 
 taken, in some of the cases, between gifts in common and 
 in joint tenancy: Burney v. Macdonald, 15 Sira. 6; 
 Russell V. Jackson, supra; Moss v. Cooper, 1 J. & H. 
 352 ; Rowbotham v. Bunnett, 8 Ch. D. 437. 
 
 The trust cannot be made to extend beyond the property Extends 
 devised so as to affect the donee personally : Rann v. property 
 Hughes, cited in Reech v. Kennegal, 1 Ves. Sen. 125 ; but devised, 
 see Barrow v. Greenough, 3 Ves. 154. 
 
 Where the promise is given by a woman, her husband's ^ ™mise by 
 marital right to the property will be affected by the trust : cmerte. 
 Norris v. Frazer, 15 Eq. 318. 
 
 Secret Charitable Trusts. 
 
 There is even a stronger call upon the justice of the Bargain to 
 Court upon a bargain between the testator and those who t^gt^^r 
 are apparently to take under his will, which bargain is to charity. 
 defeat the policy of the law, to discover whether there is 
 a secret trust for an invalid charitable purpose : Muckles- 
 ton V. Brown, 6 Ves. 69. 
 
 In such a case the heir may obtain the necessary dis- Disooyery 
 covery in an action for that purpose, in order to establish ^ 
 a resulting trust to act in his favour : Ibid. ; Stickland v. 
 Aldridge, 9 Ves. 516 ; see Adlington v. Cann, 3 Atk. 
 149, 151 ; Wallgrave v. Tebbs, 2 K. & J. 323. 
 
82 
 
 SECRET TRUSTS FOR CHARITY. 
 
 Fraud 
 must be 
 shown. 
 
 Secret 
 trust upon 
 conTeyance 
 in M ort- 
 main. 
 
 Title of 
 trustee. 
 
 But it is necessary to make out a case of fraud in order 
 to let in evidence ttiat a charitable gift, void within the 
 Mortmain Act, was intended — the fraud being constituted 
 by the inducement of the donee to obtain the devise to 
 himself upon a promise to devote the property to charitable 
 purposes : Adlington v. Cann, supra ; Russell v. Jackson, 
 10 Ha. 204 ; Wallgrave v. Tebbs, supra ; Lomax v. Ripley, 
 3 Sm. & G. 48 ; Jones v. Badley, 3 Ch. 362. 
 
 A secret trust reserving a life interest to the grantor of 
 land for charitable purposes is bad and avoids the convey- 
 ance : Fisher v. Bnerley, 29 L. J. Ch. 477 ; Way v. East, 
 2 Drew. 44 ; and see Limhrey v. Gurr, 6 Mad. 151 ; and 
 Attorney -General v. Munby, 1 Mer. 327. 
 
 And a will devising lands, in the event of the grantor 
 dying within the year (the period necessary to make a 
 conveyance in Mortmain good), creates no trust in the 
 devisee : Springett v. Jenings, 10 Eq. 495. 
 
 Where the secret charitable trust is established upon 
 the ground of fraud, the title of the trustee is dehors the 
 will, and though the charitable gift might be exempt from 
 duty, he cannot claim such exemption : Gullen v. Attorney- 
 General for Ireland, L. R. 1 H. L. 190. 
 
CHAPTER XIV. 
 
 OF ILLEGAL TRUSTS. 
 
 The Court will not enforce trusts which contravene Illegal 
 public policy, or which infringe a statute or some rule of '"^''^' 
 law. 
 
 A trust of money to procure a peerage is void : Kingston To pro- 
 V. Pierepont, 1 Vern. 5. As to trusts attempting to ^g**^^^"^" 
 control the limitations of a peerage, see the Buchhurst 
 Peerage Case, L. R. 2 App. Ca. 1. 
 
 All trusts which offend against public morals or religion Immoral 
 are void : Thornton v. Howe, 31 Bea. 14. trusts. 
 
 As to what will constitute an illegal trust as being illegal 
 against received religious doctrines, see Attorney-General j^g^'g 
 V. Pearson, 3 Mer. 408. grounds. 
 
 A trust for future illegitimate childreu is invalid : Blod- T''!^^' ^°^ 
 
 o ^ ^ luture 
 
 well V. Edwards, Cro. Eliz. 509 ; Hamilton v. Waring, bastards. 
 
 2 Bli. 196, 209 ; Medworth v. Pope, 27 Bea. 71 ; Occleston 
 V. Fullalove, 9 Ch. 147 ; Hill v. Crook, L. R 6 H. L. 265 ; 
 
 3 Ch. D. 773 ; Dorin v. Dorin, L. R. 7 H. L. 568. 
 
 But not a trust by will for the after-born illegitimate Ulegiti- 
 children of the testator himself, for the will must speak children 
 from the death for this as for all other purposes : Occleston °^ testator. 
 V. Fullalove, supra; Re Goodwin, 17 Eq. 345. 
 
 Under other ti-usts, not contemplating or encouraging When 
 future cohabitation, illegitimate children may take either m^y take. 
 as personcB designates or under the name of " children," 
 if no other children answer to that description : Hill v. 
 Crook, L. R. 6 H. L. 265 ; Dorin v. Dorin, L. R. 7 H. L. 
 568. 
 
 Deeds providing for future separation are void, and all Future 
 
 Q 2 separation. 
 
84 
 
 ILLEGAL TRUSTS. 
 
 Separation 
 to follow 
 deed. 
 
 Attempt to 
 restrict 
 absolute 
 interests. 
 
 Forfeiture 
 on aliena- 
 tion or 
 bank- 
 ruptcy. 
 
 Restric- 
 tions be- 
 yond 21. 
 
 Directory 
 provisions. 
 
 ti'usts referable to the arrangement for separation will 
 fall through : Westmeath v. Westmeath, 1 Dow & C. 519 ; 
 Proctor V. Robinson, 35 Bea. 329, 15 W. K 138 ; R. v. 
 W., 3 K. & J. 382 ; Cartwright v. Cartwright, 3 D. M. & 
 G. 982 ; Merryweather v. Jones, 4 Giff. 509 ; cf Ruffles v. 
 Alston, 19 Eq. 539. 
 
 Unless the deed be followed by immediate separation, 
 it becomes void, and cannot be supported as a voluntary 
 settlement : Bindley v. Mulloney, 7 Eq. 343. 
 
 Any trusts having for their object to continue an interest 
 in property after bankruptcy, or to restrain the power of 
 alienation which is inherent in the right of property, are 
 illegal : Brandon v. Robinson, 18 Ves. 429 ; Graves v. 
 Dolphin, 1 Sim. 66 ; Snowdon v. Dales, 6 Sim. 524 ; 
 Fiercy v. Roberts, 1 M. & K. 4 ; Rochford v. Haclcman, 
 9 Hare, 480 ; and see 2 Jarm. 14, et seq.; Shaiv v. Ford, 
 7 Ch. D. 674. 
 
 Upon a similar principle, a gift of land upon a condition 
 subsequent not to sell without reinvesting in land, cannot 
 prevent a sale not followed by such reinvestment : Hood 
 V. Oglander, 34 Bea. 513. 
 
 Alienation voluntary or involuntary, i.e., by bankruptcy, 
 may be made to operate as a forfeiture by means of a 
 trust determinable by acts of alienation or incumbrance 
 by, or by the bankruptcy or liquidation of, the cestui que 
 trust, with an express or implied gift over on the hap-, 
 peuing of any such event : see 2 Jarm. Wills, 28 ; 3 Dav. 
 Prec. pt. I., 109, et seq. ; Theobald, p. 321. 
 
 As to trusts for the maintenance of a man after his 
 bankruptcy, see post, p. 177. 
 
 Where a vested interest has once been given, restric- 
 tions upon its enjoyment beyond 21 are ineffectual unless 
 there is a disposition of the intermediate interest : Saun- 
 ders V. Vautier, Or. & Ph. 240 ; Roche v. Roche, 9 Bea. 
 66 ; Gosling v. Gosling, Johns. 265. 
 
 Any such provision for postponement may be regarded 
 as merely directory : Josselyn v. Josselyn, 9 Sim. 63 ; but 
 see Chambers v. Smith, L. B,. 3 App. Ca. 795. 
 
ILLEGAL TRUSTS. 85 
 
 Where stares of infant daughters were given upon trust Shares of 
 " to be settled on themselves at their marriage," they "'^^ b^ "^^ 
 were held entitled at 21, being then unmarried, there settled." 
 being no such trust as the Court could then execute : 
 Magrath v. Morehead, 12 Eq. 491 ; and see ante, p. 50. 
 
 If a defendant wishes to set up an illegal motive for Pleading 
 an absolute voluntary conveyance to him in an action to Lafnst a 
 establish a trust against him, he must plead such defence tr"st. 
 definitely and in plain terms, for he cannot set up the 
 Statute of Frauds to cover a fraud to which he was him- 
 self a party : Haigh v. Kaye, 7 Ch. 469 ; Childers v. 
 Childers, 1 D. & J. 482 ; JDavies v. Otty, 35 Bea. 208 ; see 
 ante, p. 26. 
 
 It is not enough for him simply to allege that the Convey- 
 plaintiff, fearing an adverse decision in a pending litiga- fear of 
 tion, conveyed the property to him : Haigh v. Kaye, adverse 
 supra. 
 
 Where the purpose of the illegal trust has failed the Failure of 
 Court will assist in getting the property back, so that the ^'^^^*' ^^^' 
 illegal transaction shall not affect the rights of third 
 parties : Symes v. Hughes, 9 Eq. 475. 
 
 Therefore, where a debtor conveyed to a trustee in order Bank- 
 to defeat creditors and then became bankrupt, the Court ^^r^^g^^ 
 decreed a reconveyance : Ihid. to defeat 
 
 So where the deed is wholly inoperative as being exe- ^'^ ^°^^' 
 cuted under a mistake as to the state of the law, to evade created 
 which the conveyance was made, the Court would set it ^ke as™(f' 
 aside, as it did upon the acquittal of a prisoner who had legal con- 
 made such a conveyance to avoid forfeiture (which had 
 been abolished) in case of his conviction : Manning v. 
 Oill, 13 Eq. 485 ; and see Birch v. Blagrave, Amb. 264 ; 
 but see Groves v. Groves, 3 Y. & J. 175, in which 
 Alexander, C. B., held, under the circumstances, that the 
 illegality of the plaintiff's original purpose should prevent 
 the Court from aiding him. 
 
 As to trusts which infringe the rule against perpe- Perpetui- 
 tuities, or which direct accumulations beyond the period *'^^' 
 allowed by the Thellusson Act, see 'post, 152 et seq. 
 
86 
 
 ILLEGAL TEUSTS. 
 
 Secret 
 trusts. 
 
 lUegal 
 
 charitable 
 
 trusts. 
 
 As to secret trusts, see ante, pp. 79 — 82. 
 
 Trusts -which are void as being constituted for super- 
 stitious purposes, or as being void for uncertain charitable 
 purposes, or as contravening the Statute of Mortmain, 
 usually arise, and generally depend as to the rules affecting 
 them, upon the construction of wills, and are therefore not 
 within the scope of the present work. The reader should on 
 these subjects consult 1 Jarm. on Wills, Chap, ix., p. 189 
 et seq.; Theobald on Wills, pp. 181 — 199 et seq.; and the 
 note to Corbyn v. French, Tudor, E. P. Cases, p. 456 et 
 seq. ; and on some points relating to the management of 
 charities, Lewin on Trusts, Chap. xxi. 
 
CHAPTER XY. 
 
 OF GETTING IN OF THE TRUST ESTATE BY THE 
 TRUSTEES. 
 
 It is the duty of trustees, as soon as they have accepted Trustees to 
 the office, to call in and collect such parts of the estate fr^gt es- 
 as are not in a proper state of investment : Styles v. Guy, t'^*^- 
 1 Macn. & G. 431. 
 
 Trustees are generally bound to invest balances in their Balances 
 hands in £3 per cents. : Robinson v. Robinson, 1 D. M. & ^"gte^'j^ 
 G. 255 ; but see now 23 & 24 Vict. c. 145, s. 25, post, consols. 
 p. 133. 
 
 They must not leave money outstanding on personal Personal 
 security, such as bills, bonds, or the like : Lowson v. (.„ ^^ g^t 
 CopeUnd, 2 B. C. C. 156 ; Powell v. Evans, 5 Ves. 838 ; ^■ 
 Caney v. Bond, 6 Bea. 486 ; Byrne v. Korcott, 13 Bea. 
 336 ; Waring v. Waring, 3 Ir. Ch. R. 331. 
 
 They should, if acting under a marriage settlement. Settle- 
 obtain the immediate transfer of the fund : McGachen v. to be 
 Dew, 15 Bea. 84. Ihem!^'" 
 
 If they neglect to enforce a covenant in a marriage Effect of 
 
 settlement to transfer to them the wife's fortune, or to sue non-trans- 
 fer 01 
 
 on a bond given by the husband to pay money, so that settlement 
 
 the fund is misapplied by the husband, or not received at ^"°'^^- 
 
 all, they will be personally liable : Fenwich v. Greenwell, 
 
 10 Bea. 412 ; Luther v. Bianconi, 10 Ir. Ch. R. 194; 
 
 Wiles V. Gresham, 2 Drew. 258 ; Jones v. Higgins, 2 Eq. 
 
 538. 
 
 The husband's estate may also be made liable in such Liability of 
 
 a case, as he becomes a trustee of the fund : Goxwell v. fo"^,^^. 
 
 FranklinsJci, 11 L. T. N. S. 153 ; Spickernell v. Hoiham, applica- 
 tion. 
 
88 
 
 GETTING IN TRUST ESTATE BY THE TRUSTEES. 
 
 Liability of 
 trustees to 
 get in 
 " with all 
 convenient 
 speed ; " 
 
 or with a 
 power to 
 ■vary; 
 
 or to call 
 in a debt 
 or not ; 
 
 or to take 
 "suffi- 
 cient " 
 security for 
 advances. 
 Suing for 
 instal- 
 ments. 
 
 No liability 
 for not 
 compromis- 
 ing. 
 
 Should sue 
 unless suc- 
 cess un- 
 likely. 
 
 Though 
 debtor's 
 credit hurt 
 by suing. 
 
 Non- 
 existence 
 of fund on 
 which 
 debts 
 charged. 
 
 Kay, 669 ; Butler v. Carter, 5 Eq. 276 ; Brittlebank v. 
 Goodwin, 5 Eq. 545 ; Stone v. Stone, 5 Ch. 74. 
 
 As to the effect of the Statute of Limitations in such 
 cases, see post, Chap. XXXIX. 
 
 Latitude given by the testator by such words as " to 
 get in with all convenient speed," is no ground for in- 
 fringing the rule as to personal security : Bullock v. 
 Wheatley, 1 Coll. 130 ; Buxton v. Buxton, 1 M. & Cr. 93 ; 
 Grove V. Price, 26 Bea. 103. 
 
 As to a discretion to vary securities, and its effect -upon 
 the duty of getting in such securities, see Prendergast 
 V. Lushington, 5 Ha. 171 ; Robinson v. Robinson, 1 D. 
 M. & G. 262; Befhell v. Abraham, 17 Eq. 27. 
 
 If a discretion is expressly given to trustees to call in 
 a debt or not, they ought not to do so if they are not 
 clearly of opinion that it is expedient : Paddon v. 
 Richardson, 7 D. M. & G. 564, 683. 
 
 A power to trustees to advance to a husband on suffi- 
 cient security does not authorise them to take his bond 
 only ; Mills v. Osborne, 7 Sim. 30. 
 
 Nor if he covenant to pay by instalments, should they 
 abstain from suing him, unless they are otherwise suffi- 
 ciently secured : Caffrey v. Darby, 6 Ves. 488. 
 
 It seems that trustees are not bound to compromise 
 a debt due on a bill, or liable if they afterwards sue and 
 recover nothing : £xp. Ogle, 8 Ch. 711. 
 
 But if it cannot be proved by the trustees that nothing 
 would be recovered in an action, they are liable for their 
 neglect in not suing in time : Bast v. Bast, 5 Ha. 348 ; 
 Simes v. Byre, 6 Ha. 137 ; Clack v. Holland, 19 Bea. 271 ; 
 Grove v. Price, 26 Bea. 103; Hobday v. Peters, 28 Bea. 603. 
 
 Possible injury to the credit of the debtor on a bond 
 is no reason for not suing him : Luther v. Bianconi, 10 
 Ir. Ch. E. 194. 
 
 If it appears that a fund, out of which certain payments 
 are by will directed to be made, cannot satisfy such pay- 
 ments, the liability for not getting in the supposed fund 
 does not arise : Rowley v. Adams, 2 H. L. C. 725. 
 
GETTING IN TRUST ESTATE BY THE TRUSTEES. 89 
 
 Where trustees act bond fide, they may make payments Releasing 
 by way of releasing rights standing in the way of realising gjfg^^. ^^yg^ 
 the estate, though of course their conduct may be after- 
 wards liable to revision : Blue v. Marshall, 3 P. W. 381 ; 
 Wiles V. Gresham, 5 D. M. & G. 770 ; Forshaw v. Hig- 
 ginson, 8 D. M. & G. 834. 
 
 Trustees are not liable where a policy is dropped through Liability od 
 the bankruptcy of the person liable to keep it up, unless poi^y\o 
 it is part of their duty to pay the premiums : Hobday v. secure 
 Peiers, 28 Bea. 603. ''"*"' 
 
 But if in consequence of their neglect to give notice, where trus- 
 the fund due on the policy has got into the wrong hands, to giyg 
 they cannot excuse themselves on the ground of the notice, 
 insolvency of the person bound to pay the premiums : 
 Kingdon v. Castleman, W. N. 1877, 15. 
 
 So also if they neglect a necessary registration ; Mac- or to regis- 
 naTnara v. Carey, Ir. R. 1 Eq. 9 ; Lester v. Lester, 6 I. Oh. 
 R. 513. 
 
 If trustees sign a receipt for money which they do not Signing 
 actually receive, they will be liable for it, on the ground moLy un- 
 that they had not properly secured it : WestTnoreland v. received. 
 Holland, W. N. 1871, 124. 
 
 Trustees, like executors, are allowed a discretion as to Discretion 
 the time when they shall sell securities : Buxton v. ^f reaiisa- 
 Buxton, 1 M. & Cr. 80 ; Hughes v. Empson, 22 Bea. 183 ; ti<"i- 
 Marsden v. Kent, 5 Oh. D. 598. 
 
 The onus is on them to show why they should not have They 
 converted within the usual period of one year, especially within the 
 when there remains a liability on shares : Grayburn v. y^*"^- 
 Clarkson, 3 Ch. 605 ; Sculthorpe v. Tipper, 13 Eq. 232. 
 
 A direction to convert with all convenient speed, or the Excessive 
 like, is not available to excuse excessive delay : see supra ; 
 and Sculthorpe v. Tipper, supra. 
 
 But where the settlor points out a time at which the Receipt 
 trust is to commence, they are not debarred from antici- prescribed 
 pating that time in receiving the fund : Mills v. Osborne, by testator. 
 7 Sim. 30 ; Maskelyne v. Russell, W. N. 1869, 184. 
 
 Trustees of residuary estate would probably be allowed Contmumg 
 
90 
 
 GETTING IN TRUST ESTATE BY THE TRUSTEES. 
 
 Sale of 
 good-will. 
 
 Breaking 
 up estab- 
 lishment. 
 
 Calling in 
 
 Calling in 
 without 
 consent of 
 tenant for 
 life. 
 
 Calling in 
 equitable 
 debt. 
 
 to carry on a business in order to its liquidation : Kirkman 
 V. Booth, 11 Bea. 273 ; Collinson v. Lister, 20 Bea. 856. 
 
 If an executor undertakes a trust to continue the trade 
 of his testator he becomes liable to the extent of all his 
 own property, and he may be sued or proceeded against 
 in bankruptcy though he is only a trustee ; Exp. Gar- 
 land, 10 Ves. 110, 118 ; Cutbush v. Cuibush, 1 Bea. 184; 
 Lucas V. Williams, 4 D. F. & J. 436 ; Owen v. Delamere, 
 15 Eq. 139. 
 
 And if the power to trade be restricted to a specific 
 portion of the assets, the remainder of the estate will not 
 be liable in the bankruptcy to the debts : Exp. Garland, 
 10 Ves. 110, 118 J Cutbush v. Cutbush, 1 Bea. 184; 
 Thompson v. Andrews, 1 M. & K. 116 ; Owen v. Bela- 
 m.ere, 15 Eq. 139 ; and see Exp. Richardson, Buck, 209, 
 3 Madd. 138; Exp. Butterfield, 1 De G. 319, 570. 
 
 The estate of the testator is bound to indemnify the 
 trustee so carrying on the trade : Lewin, p. 209 ; but 
 see Lucas v. Williams, 4 D. F. & J. 440. 
 
 As to the sale of the good-will to one rather than to 
 another purchaser at the request of beneficiaries, see 
 Selby V. Bowie, 4 Gif. 300. 
 
 As to the time allowed for discharging servants, &c., 
 see Field v. Beckett, 29 Bea. 576. 
 
 A good mortgage security should not be called in until 
 the money is required, or there is reason to believe it will 
 fail, or because it is for the benefit of all that it should 
 be called in : Hall v. Hallett, 1 Cox, 134 ; Howe v. Bart- 
 mouth, 7 Ves. 150; Orr v. Newton, 2 Cox, 277; Atnes 
 V. Barkinson, 7 Bea. 379, 383 ; Robinson v. Robinson, 1 
 D. M. & G. 263. 
 
 If the security be found deficient, though the tenant for 
 life refuse the required consent, the trustees should insist 
 in calling in so much as is not covered by the security : 
 Harrison v. Thexton, 4 Jur. N. S. 550 ; see Thornton v. 
 Hawley, 10 Ves. 137. 
 
 Where payment of the debt is enforceable in equity 
 only, so that the cestui que Irust might have enforced it 
 
GETTINa IN WASTING SECURITIES. 91 
 
 himself, the trustee ■will not be liable for not calling it in : 
 Paddon v. Richardson, 7 D. M. & G. 563 ; but see 
 Horton v. Brocklehurst, 29 Bea. 5J4. 
 
 In getting in the estate trustees can give receipts for Receipts 
 money under 22 & 23 Vict. c. 35, s. 23, or under 23 & 24 23 Vict. 
 Vict. c. 145, ss. 29 & 34. See also p. 124, 2:)ost. 23 &'24"^ 
 
 As to a supposed difference between the power to give Vict. c. 
 receipts for personal debts and for money arising out of 
 real estate, see Lewin, pp. 258 — 9, and the Irish cases debts and 
 there cited. <\^^*^ ^ 
 
 charged on 
 land. 
 
 Getting in Wasting Securities. 
 
 Where an entire personal residue is given in trust to Getting m 
 persons in succession, wasting securities, e.g., leaseholds or securities, 
 terminable annuities, included in it, must be converted by 
 the trustees into investments of a permanent character : 
 Howe V. Dartmouth, 7 Ves. 137, and the older cases 
 there cited : House v. Way, 12 Jur. 959 ; Craig v. 
 Wheeler, 29 L. J. Ch. 874 ; Morgan v. Morgan, 14 Bea. 
 72 ; Pickering v. Pickering, 4 M. & Or. 289 ; Be Shaw, 
 12 Eq. 124 ; Tickner v. Old, 18 Eq. 422 ; Thurshy v. 
 Thursby, 19 Eq. 408; Porter v. Baddeley, 5 Ch. D. 542; 
 Macd,onald v. Irvine, 8 Ch. D. 101. 
 
 And this rule is extended to the case of securities which "f^.^®™"^ 
 
 rmes not 
 
 would not be sanctioned by the Court: Thornton v. Ellis, sanctioned 
 15 Bea. 193 ; Wightwick v. Lord, 6 H. L. G. 217. ^^ °''"'- 
 
 As to the nature of such unauthorised securities, see 
 Chap. XVIII. 
 
 But an indication in the will that the tenant for life Contrary 
 should take the whole income of the property as it stands 
 is effectual to exclude this rule : Pickering v. Pickering, 
 4 M. & Cr. 299 ; Thursby v. Thursby, 19 Eq. 408, and the 
 cases cited ; but see Macdonald v. Irvine, 8 Ch. D. 101. 
 
 The onus of showing that no conversion is intended is Burden of 
 on those who say that it is not : Morgan v. Morgan, p™°*' 
 14 Bea. 72 ; Blann v. Bell, 2 D. M. & G. 779. 
 
 Neglect to observe these rules will render the trustees Overpay- 
 liable as for a breach of trust, though they may recover ""^°' '° 
 
 intention. 
 
92 
 
 GETTING IN WASTING SECURITIES. 
 
 tenant for 
 life. 
 
 Specific 
 gift : no 
 conversion. 
 
 General 
 gift after 
 details of 
 estate ; no 
 conversion. 
 
 Contrary 
 intention 
 from 
 words : 
 "rents : " 
 
 "divi- 
 dends ; " 
 
 the overpayment from the estate of the tenant for life : 
 Hood V. Clapham, 19 Bea. 91 ; Bate v. Hooper, 5 D. M. 
 & G. 338 ; Tickner v. Old, 18 Eq. 422. 
 
 As to the apportionment of a sum so recovered if less 
 than what is due, see lie Grabowski, 6 Eq. 12 ; Cox v. 
 Cox, 8 Eq. 343 ; Ackroyd v. Ackroyd, 18 Eq. 313. 
 
 If leaseholds or unauthorised securities are given 
 specifically, no duty of conversion is implied : Vincent v. 
 Newcombe, Younge, 599 ; Cafe v. Bent, 5 Ha. 34. 
 
 And an indication against conversion is gathered from 
 a general gift of leaseholds followed by such words as " all 
 other, &c., wheresoever situate, &c.," though there be in 
 the will a discretionary power of sale : Lord v. Godfrey, 
 4 Madd. 455; Bethune v. Kennedy, 1 M. & Cr. 114; 
 Pickering v. Pickering, 4 M. & Cr. 289 ; Vaughan v. 
 Buck, 1 Ph. 75; Bowden v. Bowden, 17 Sim. 65; Hinves 
 V. Hinves, 3 Ha. 609 ; Vincent v. Newcomhe, Yo. 599 ; 
 Lichfield v. Bakpr, 13 Bea. 447 ; Hood v. Clapham, 19 
 Bea. 90 ; Simpson v. Lester, 4 Jur. N. S. 1269 ; Craig v. 
 Wheeler, 29 L. J. Ch. 374 ; Boys v. Boys, 28 Bea. 436 ; 
 Thursby v. Thursby, 19 Eq. 895. Mills v. Mills, 7 Sim. 
 501, is not law. See Lewin, 264 n. (b). 
 
 The use of the word "rents" tends to show an inten- 
 tion that the leaseholds are to be taken specifically : 
 Goodenough v. Tremamondo, 2 Bea. 512 ; Bowden v. 
 Bowden, \ 7 Sim. 65 ; Cafe v. Be7it, 5 Ha. 36 ; Burton v. 
 Mount, 2 De G. & Sm. 383 ; Blann v. Bell, 2 D. M. & G. 
 775 ; Skirving v. Williams, 24 Bea. 275 ; Vachell v. 
 Roberts, 32 Bea. 140. 
 
 Or, "dividends:" Alcock v. Sloper, 2 M. & K. 699; 
 Sutherland v. Cooke, 1 Coll. 500 ; Pidgeon v. Spencer, W. 
 N., 1867, 87; but see Pickup v. Atkinson, 4 Ha. 624 ; 
 Booth V. Coulton, 7 Jur. N. S. 207 ; Bate v. Hooper, 5 D. 
 M. & G. 344; Boys v. Boys, 28 Bea. 436; Wilday v. 
 Sandys, 7 Eq. 455. 
 
 Or, "income:" Chambers v. Chambers, 15 Sim. 183; 
 Hubbard v. Young, 10 Bea. 205 ; Crowe v. Crisford, 17 
 Bea. 507. 
 
GETTING IN WASTING SECURITIES. 93 
 
 Or, "profits :" Miller v. Miller, 13 Eq. 263. "profits-." 
 
 Where the object of the gift is expressed to be the Equal 
 maintenance of the tenant for life and children, the Court J™ant for 
 does not order a conversion in all cases : Marshall v. life and 
 Bremner, 2 Sm. & G. 237; Wearing v. Wearing, 23 
 Bea. 99. 
 
 Where an annuity was charged on Long Annuities, they Charge on 
 were ordered to be sold: Fryer v. Buttar, 8 Sim. 442. proplrfy. 
 
 A. leasing or selling power where specific leaseholds are power to 
 given, followed by a general gift of residue without a ^®^^ "'^ 
 power of sale, will not show an intention that a conversion 
 should be made: Cafe v. Bent, 5 Ha. 34. 
 
 An inference against a conversion is to be drawn from Direction 
 the presence of a direction to convert : Gibson v. Bott, 7 ' 
 
 Ves. 89 ; Morgan v. Morgan, 14 Bea. 72 ; Johnson v. 
 Johnson, 2 Coll. 441 ; Jebb v. Tugwell, 20 Bea. 84 ; 
 Thursby v. Thursby, 19 Eq. 408. 
 
 And from a direction to sell to pay debts: Re Sewell, 11 °i" *° ^^ll 
 
 -^ ^^ to pay 
 
 Eq. 80. debts! 
 
 And from a power to continue investments : Ticlcner v. Power to 
 Old, 18 Eq. 422 ; Porter v. Baddeley, 5 Ch. D. 542. i"^*^™' 
 
 And from a power to vary them: Morgan v. Morgan, ™<=nts. 
 14 Bea. 72 ; Re Llewellyn, 29 Bea. 171 ; but see Lord v. ^"^^'^ *° 
 Godfrey, 4 Madd. 455. 
 
 A discretionary power of sale given to trustees does not Discretion- 
 interfere with the operation of the rule ; Caldecott v. of^saler^"^ 
 Caldecott, 1 Y. & C. C. C. 812 ; Meyer v. Simonsen, 5 
 De G. & Sm. 723; Yates v. Yates, 28 Bea. 637; Re 
 Llewellyn, 29 Bea. 171 ; Brown v. Gellatly, 2 Ch. 751 ; 
 Re Sewell, 11 Eq. 80. 
 
 Nor will a trust to convert from time to time : Calde- To sell 
 cott V. Caldecott, 1 Y. & C. C. C. 737. f T *™« 
 
 ' to time. 
 
 But if the sale be postponed by the testator till after the Direction 
 death of the tenant for life, the rule does not apply: i°feten^*™ 
 Pickering v. Pickering, 4 M. & Cr. 289 ; Vincent v. lifew- ant's 
 combe, Younge, 599; Daniel v. Warren, 2 Y. & C. C. '^^^^^' 
 C. 290 ; Macdonald v. Irvine, 8 Ch. D. 101, 117. 
 
 Nor if there be a direction to "divide " at the death of To "di- 
 
94 
 
 GETTING IN WASTING SECURITIES. 
 
 vide " after 
 his death. 
 
 Specific 
 gift on his 
 death. 
 
 Direction 
 to convert 
 part of 
 residue. 
 
 Postpone- 
 ment for 
 definite 
 time : 
 
 for in- 
 definite 
 time. 
 
 Eeference 
 in will to 
 diificulty 
 of conver- 
 sion. 
 
 Residue 
 invested in 
 a p.irtuer- 
 ship. 
 
 Defect of 
 title. 
 
 Direction 
 to sell 
 with con- 
 sent of 
 life tenant. 
 
 the life-tenant: Collins v. Collins, 2 M. & K. 703; Rowe 
 V. Rowe, 29 Bea. 276. 
 
 Nor if the wasting property, or part of it, be given 
 specifically on his death : Collins v. Collins, supra ; 
 D'Aglie v. Fryer, 12 Sim. 1 ; Harris v. Poyner, 1 Drew. 
 174 ; Holgate v. Jennings, 24 Bea. 623. 
 
 If after a direction to convert, the testator give the 
 tenant for life the income of the part unsold, he will 
 not be deprived of the income of that part in specie : 
 Johnston v. Moore, 27 L. J. Ch. 4.53 ; Wrey v. Smith, 14 
 Sim. 202'; Miller v. Miller, 13 Eq. 263. 
 
 If the sale be postponed for a definite time by the 
 testator, the intermediate income goes to the tenant for 
 life : Green v. Britten, 1 D. J. & Sm. 649 ; Bhirving v. 
 Williams, 24 Bea. 275 ; Thursby v. Thursby, 19 Eq. 
 395. 
 
 But if for an indefinite time, and the earnings are to be 
 for the benefit of the estate, he does not take them : 
 Bro^vn v. Gellatly, 2 Ch .751 ; and see Viner v. Vaughan, 
 2 Bea. 466; Daly v. Beckett, 24 Bea. 114; Miller v. 
 Miller, 13 Eq. 263. 
 
 Where a testator referred to a specific leasehold house 
 as likely to remain unconverted, the tenant for life was 
 allowed to receive the whole rents : Vaughan v. Buck, 1 
 Ph. 75 ; and see Macdonald v. Irvine, 8 Ch. D. 118. 
 
 Where part of the residue is invested in a partnership, 
 and is to be repaid with interest, the tenant for life takes 
 the interest in specie : Fearns v. Young, 9 Ves. 549 ; 
 Meyer v. Simonsen, 5 De G. & Sm. 723; Thornton v. 
 Ellis, 15 Bea. 193 ; Re Llewellyn, 29 Bea. 174. 
 
 And where from a defect in title it is for the benefit of 
 all that a leasehold should not be sold, the tenant for life 
 will take the whole rents : Gibson v. Bott, 7 Ves. 89 ; and 
 see Walker v. Shore, 19 Ves. 387. 
 
 If the tenant for life's consent is necessary to a sale, that 
 shows an intention against the rule : Hinves v. Hinves, 3 
 Ha. 611; Hind v. Selby, 22 Bea. 873; Skirving v. 
 Williams, 24 Bea. 275. 
 
SALE OF REVEESIONS — RIGHTS IN KESTDUE. 95 
 
 Getting in a Reversion for the Life-Tenant's Benefit. Keversions. 
 
 If part of a residue given to persons in succession con- Sale of re- 
 sists of reversionary, future, or contingent interests, sucli in- ^^'^^tJ^g^ 
 terests should be converted so as to give the tenant for interests. 
 life an immediate income from them : Howe v. Lord 
 Dartmouth, 7 Ves. 137 ; Prendergast v. Prendergast, 3 
 H. L. C. 218 ; WiUdnson v. Duncan, 23 Bea. 469; John- 
 son V. Routh, 27 L. J. Ch. 305 ; Lord v. Wightwich, 4 D. 
 M. & G. 803 ; Harrington v. Atherton, 2 D. J. & Sm. 
 352. 
 
 If the reversion falls in before conversion, the tenant for Wliere re- 
 life will still take the whole income of the value calculated f^ug'™ be- 
 after a year from the death of the testator : Wilkinson v. fore sale. 
 Duncan, 23 Bea. 469. 
 
 The rule is the same though the reversion be expectant ReTersion 
 on the tenant for life's own life : Johnson v. Routh, 27 L. tenant's 
 J. Ch. 308 ; Harrington Y. Atherton, supra. In this case own life. 
 the value was ascertained from the testator's death: Ibid. 
 
 A djustment of Rights in residue between Tenant for 
 Life and Remainderman. 
 
 Every tenant for life is entitled to the income of all Interest of 
 such part of the residue as is not required for the pay- i^ ^p^" 
 ment of debts and which is found to be in a proper state invest- 
 of investment. He is entitled to the income of that pro- 
 perty from the death of the testator : AUhusen v. Whittell, 
 4 Eq. 302, citing Angerstein v. Martin, T. & E. 232 ; 
 Hewitt V. Morris, ibid. 241 ; and see La Terrihre v. / 
 Bulmer, 2 Sim. 18 ; Caldecott v. Caldecott, 1 Y. & C. C. 
 C. 312, 737. 
 
 Or from the time (even within the year) when a proper 
 conversion has been made : Gibson v. Bott, 7 Ves. 89 ; 
 La Terriere v. Bulvner, 2 Sim. 18. 
 
 But, in adjusting the rights between the parties, it is Mode of 
 necessary to ascertain what part, together with the in- ^g^^*' 
 come of such part for a year, will be wanted for the pay- 
 
96 
 
 RIGHTS OF TENANT FOR LIFE IN RESIDUE. 
 
 Payment 
 of debts 
 before end 
 of year. 
 
 where rate 
 of interest 
 unusually 
 high. 
 
 Rule in 
 AUhusen v. 
 Whittell to 
 be applied 
 to real 
 estate. 
 
 As to part 
 not pro- 
 perly in- 
 Tested. 
 
 Invest- 
 ments 
 legalised 
 by 22 & 23 
 Vict. i:. 35. 
 
 merit of debts, legacies and other charges during the year, 
 and the proper and necessary fund will be ascertained by 
 including the income for one year which may arise upon 
 the fund which may be so wanted : AUhusen v. Whittell, 
 4 Eq. 303. 
 
 This rule is not affected by the fact that the debts and 
 legacies have been paid before the year, and that the in- 
 come from the continuance of the estate in the business 
 carried on by the testator has greatly exceeded 5 per cent., 
 so that the income found as the result of the inquiry as 
 coming to the tenant for life was much reduced : Lambert 
 V. Lambert, 16 Eq. 320. 
 
 And in general where the income arises from such 
 sources, so that from the risk a higher rate than usual is 
 obtained, the remaindermen are entitled to a portion of 
 the extra income : Dimes v. Scott, 4 Russ. 195 ; but see 
 Stroud V. Gvjyer, 28 Bea. 130. 
 
 The rule is applicable to real estate ; and the tenant for 
 life of land charged with debts must keep down all the 
 interest on debts bearing interest and which are found to 
 be a charge : Marshall v. Crowther, 2 Ch. D. 199 ; see 
 Barnes v. Bond, 32 Bea. 053. Greisley v. Chesterfield, 
 13 Bea. 288, was not followed. 
 
 As to that part of the residue which is not in a proper 
 state of investment at the death of the testator, the tenant 
 for life should get the income from the death taken on a 
 sum of Consols purchased on the death of the testator : 
 Dimes v. Scott, 4 Euss. 195 ; Taylor v. Clark, 1 Ha. 161 ; 
 Morgan v. Morgan, 14 Bea. 72 ; Holgate v. Jennings, 
 24 Bea. 623; AUhusen v. Whittell, supra; Brown v. 
 Gellatly, 2 Ch. 752. 
 
 As regards investments authorised only by the statute 
 (22 & 23 Vict. c. 35), it has been held that that Act is 
 not made by 23 & 24 Vict. c. 38, s. 12, retrospective for 
 the purpose of altering rights, and that the tenant for life 
 could not have the whole income of such investments 
 between the testator's death and the passing of the latter 
 Act, but the income only of so much Consols as could have 
 
RIGHTS OF TENANT FOR LIFE AND REMAINDERMEN. 97 
 
 been bought at the time of the death- of the testator; 
 Hume V. Richardsov, 4 D. F. & J. 29. 
 
 It seems that if the property ought to be, but cannot Where 
 be converted, or is an outstanding debt not immediately cannot L 
 liable to be called in, the tenant for life takes 4 per cent, immediate- 
 
 ]y con- 
 
 from the death on the value taken at the end of a year verted, 
 after it : Gibson v. Sott, 7 Ves. 89 ; Caldecott v. Galdecott, 
 1 Y. & C. C. C. 312 ; Sutherland v. Cooke, 1 Coll. 503 ; 
 Fearns v. Young, 9 Ves. 549 ; Meyer v. Simonsen, 5 De 
 G. & S.m. 723 ; Re Llewellyn, 29 Bea. 174. 
 
 If income of property is directed to be accumulated till Dii^ection 
 
 . „ , 1 /- Tf. 1 *" acoumu- 
 
 an investment is lound, the tenant tor life takes the accu- late : life- 
 tenant's 
 
 interest in 
 
 mulations after a year from the death : Sitwell v. Bernard, 
 
 6 Ves. 520 ; Noel v. Henley, 7 Price, 241 ; VicJiers v. accumuia- 
 
 Scott, 3 M. & K. 500 ; and see Macpherson v. MacpTierson, '°°^' 
 1 Mcq. 243 ; 16 Jur. 847. 
 
 The tenant for life is entitled to the income arising Life-tenant 
 
 from so much of the residue as is set apart to pay contin- iucomfi of 
 
 gent legacies: Allhusen v. Whittell, supra, following f™dfor 
 
 contingent 
 
 Crawley v. Crawley, 7 Sim. 427 ; Fullerton v. Martin, 1 " 
 Dr. & Sm. 31 ; Cranley v. Dixon, 23 Bea. 512. 
 
CHAPTER XVI. 
 
 OF THE LIABILITY OF TRUSTEES FOR THE SAFETY OF 
 TRUST PROPERTY. 
 
 Extent of This liability does Bot extend to cases of robbery or 
 
 liability. fraud, beyond the care which a prudent man would take 
 
 of his own property : 3lorIey v. Morley, 2 Ch. Ca. 2 ; Jones 
 
 V. Lewis, 2 Ves. Sen. 240 ; Ex'p. Belchier, Amb. 218 ; and 
 
 see Bostoch v. Floyer, 1 Eq. 26. 
 
 Executor is And it is held that an executor is a gratuitous bailee 
 
 Met'""' ^^^ ^°^ ^i^^^® ^""^ ^^^^' ""^®®^ g"'l*y °^ ■^'^l^^^ default : Job 
 
 V. Job, 6 Ch. D. 564. 
 Paying into Trust money may be placed with a banker for a reason- 
 ^*°'^- able time if not immediately required for investment : 
 
 Swinfen v. Swinfen, 29 Bea. 211 ; Wilks v. Groom, 3 Dr. 
 
 584. 
 Excessive But the amount must not be excessive : Astbury v. 
 (icpo.it. BeasUy, W. N. 1869, 96.' 
 
 Ileasonabio A year after the testator's death is a reasonable time : 
 deposit™ "^ ^^oyle V. Moyh, 2 R. & M. 710 ; Johnson v. Kewton, 11 
 
 Ha. 160. 
 After new Money must not be left at a banker's by a retiring 
 
 tiTistees ap- . jii i ■ ■, -r t 
 
 pointed. trustee alter new trustees nave been appomted : Lunliam 
 
 V. Blunddl, 27 L. J. Ch. 179. 
 Tanking The trustee may pay money required for contingent or 
 
 future pay- future bequests into a bank ; and if it fails, the legatees 
 ments. already paid will not bear the loss, which must fall on 
 
 those entitled to such bequests : FenwicJc v. Clarice, 31 
 
 L. J. Ch. 728. 
 After order Money ought not to be paid into a bank after an order to 
 Court. ° " pay it into Court: Wilkinson v. Beiuiclc, 4 Jur. N. S. 1010. 
 
LIABILITY FOR SAFETY OF TRUST PROPERTY. 99 
 
 Trustees placing money at a banker's 'vvith an order to Loss by 
 invest it, will be liable if the bank fails before the invest- trustee. 
 ment, unless they have taken care to have it completed at 
 once : ChaUen v. Shippam, 4 Ha. 557 ; and see Moyle 
 V. Moyle, 2 R. & M. 710 ; Matthews v. Brise, 6 Bea. 
 2.39. 
 
 They are liable also if they deposit the money at in- Deposit at 
 terest with a bank which fails ; for that is merely an un- 
 warranted investment: Rehden v. Wesley, 29 Bea. 213; 
 but see Re Marcon, W. N. 1871, 148. 
 
 Or on a banker's note bearing interest ; Darke v. Martyn, On bank- 
 1 Bea. 525 ; Bacon v. Clark, 3 M. & Cr. 294 ; Gibbins v. tearing" 
 Taylor, 22 Bea. 344. interest 
 
 They must not put money into a bank in such a way Deposit so 
 that other signatures than their own are necessary to get control 
 it out : Salway v. Salway, 2 R. & M. 215 ; 3 C. & F. '"^t. 
 44. 
 
 And a trustee is liable for loss if he deposits the money Deposit to 
 to his own personal account : Massey v. Banner, 1 J. & own no- 
 W. 248 ; Wren v. Kirton, 11 Yes. 377 (in which Knight ™""'- 
 V. Plymouth, 1 Dick. 120 is doubted) ; Rowth v. Howell, 
 3 Ves. 565 a. 
 
 But it is sufficient if the money be so ear-marked that How ear- 
 it can be followed, in the event of a loss, as trust money : 
 Pennell v. Deffell, 4 D. M. & G. 386 ; Exp. Kingston, 6 
 Ch. 632 ; Great Eastern Raihvay Go. v. Turner, 8 Ch. 
 153 ; see Broiun v. Adams, 4 Ch. 767; post, p. 299. 
 
 And generally if trustees blend trust-money with their Blending 
 own it is for them to show what part of the mixed fund is ^^^.y^ 
 not affected by the trust : Warde v. Aeyre, 2 Bulst. 323 ; with their 
 Fellou's V. Mitchell, 2 Vern. 516 ; Chedworth v. Edwards, 
 8 Ves. 46 ; Lupton v. White, 15 Ves. 432 ; PinJcett v. 
 Wright, 2 Ha. 120 ; Harford Y.Lloyd, 20 Bea. 310 ; Pen- 
 nell V. Befell, 4 1). M. & G. 372 ; Mason v. Morley, 34 Bea. 
 475 ; Cook v. Addison, 7 Eq. 466 ; post, p. 301 et seq. 
 
 This principle applies where the blending of funds arises by not 
 from not keeping accounts : White v. Lincoln, 8 Ves. 363 ; accounts ■ 
 Leeds v. Amherst, 20 Bea. 239. 
 
 H 2 
 
]00 
 
 LIABILITY FOE SAFETY OF TRUST PROPERTY. 
 
 by destroy- 
 ing ac- 
 counts. 
 
 Entrusting 
 money to 
 strangers. 
 
 Interim 
 investment 
 ia Exche- 
 quer bills. 
 
 Loss of de- 
 posit by 
 auction- 
 eer's de- 
 fault. 
 Payment 
 to agent 
 before re- 
 quired. 
 
 Misappli- 
 cation by 
 «g6«(t. 
 
 Safety of 
 securities 
 transfer- 
 able by 
 delivery ; 
 
 of iihares 
 registered 
 in name of 
 one trus- 
 tee only. 
 
 Insurance 
 of lease- 
 holds. 
 
 Keeping up 
 policy on 
 life of a 
 debtor. 
 
 Or from destroying accounts: Gray v. Haig, 20 Bea. 
 219 ; and see Armory v. Delamirie, 1 Strange, 505. 
 
 Of course trustees are liable if they entrust money to 
 mere strangers who misapply it : Clough v. Bond, 3 M. & 
 Or. 490 ; Johnson v. Newton, 11 Hare, 160 ; Browne v. 
 Butter, 24 Bea. 159. 
 
 And though an interim investment in Exchequer bills 
 is allowed, the bills must not be left with a broker so that 
 he can misapply them : Matthews v. Brise, 6 Bea. 239. 
 
 But a deposit may be left with an auctioneer, and the 
 trustees will not be liable if they do all they can to recover 
 it from him ; Edmonds v. Pealce, 7 Bea. 239. 
 
 Money must not be paid to an agent before it is re- 
 quired : Castle v. Warland, 32 Bea. 660 ; and see Shi^)- 
 brooJc v. Ilinchinbrook, 16 Ves. 477. 
 
 But after a proper payment to an agent, trustees are 
 not liable if he misapplies it : Re Bird, 16 Eq. 203 ; and 
 see Barnes v. Addy, 9 Ch. 251. 
 
 As to the precautions which trustees of shares, pay- 
 able to bearer, should take with regard to the safety of 
 securities transferable by delivery, see Mendes v. Guedalla, 
 2 J. & H. 259 ; Lewis v. Nobbs, 8 Ch. D. 591. 
 
 And as to shares which the company requires to be re- 
 gistered in a single name, see Consterdine v. Consterdine, 
 31 Bea. 330. 
 
 Trustees are not personally liable upon a testator's 
 covenant to insure leaseholds : Fry v. Fry, 27 Bea. 146 ; 
 Bailey v. Gould, 4 Y. & G. 221 ; and see Bohson v. Land, 
 8 Ha. 216. 
 
 And' a sum paid by them in satisfaction of such a 
 covenant will be allowed in their accounts : Fry v. Fry, 
 27 Bea. 144. 
 
 They must not allow a policy on the life of a debtor 
 to the estate to drop : Garner v. Moore, 3 Dr. 277. 
 
CHAPTER XVir. 
 
 GENERAL DISCRETION AND POWERS OF TRUSTEES — POWER 
 TO CONSENT TO MARRIAGE — POWER TO BUILD, &C. 
 
 In determining whether trustees have been warranted General 
 in acting in a particular manner in a state of circum- 
 stances not contemplated by the trusts, the Court will 
 protect them, if it is shown that they have acted as 
 sensible and prudent men, acting for the common' benefit 
 of all then- cestuis que trust, might fairly have acted : 
 Angell v. Dawson, 3 Y. & C. 308, 317 ; Harrison v. 
 Randall, 9 Hare, 397, 407 ; King v. King, 1 D. & J. 
 671. 
 
 What a trustee would be ordered by the Court to do is Doing 
 valid if done by him without the previous authority of ^o^]^^ "" 
 the Court : Andrevjs v. Partington, 3 B. C. C. 60, 401 ; J^.^^^ sanc- 
 Gilliland v. Crawford, I. R. 4 Eq. 42 ; Seagram v. 
 Knight, 2 Ch. 628, 630. 
 
 So a trustee to pay debts may mortgage or sell to raise Selling to 
 them, for the Court would have decreed it : Bath v. Brad- ^^^ '''''*-"- 
 ford, 2 Ves. Sen. 586. 
 
 Where trustees are acting hona fide in the exercise of Making 
 their discretion, they may (though they run some risk in "^y^^^t^ 
 doing so) make payments which are in their judgment 
 necessary for the due execution of their trust : Forshavj 
 V. Higginson, 8 D. M. & G. 827 ; and see Balsh v. 
 Hyham, 2 P. W. 453. 
 
 So trustees for sale were allowed a sum paid for a 
 legacy alleged by a purchaser to be a charge, though it 
 was doubtful if it was so ; Ibid. 
 
 Trustees are justified in releasing arrears of rent in Compro- 
 
102 
 
 DISCRETION Op trustees. 
 
 Tayirg 
 capital cf 
 annuity. 
 
 Lien for 
 .paymenliS 
 out of 
 poclcot. 
 
 Suit not 
 desired by 
 beneficia- 
 
 Eef iisal to 
 pay bene- 
 ficiaries. 
 Consulting 
 cestui que 
 trust as to 
 discretion. 
 
 Acting un- 
 der doubt- 
 ful exer- 
 cise of 
 power of 
 appoint- 
 ment. 
 
 Cannot 
 grant lease 
 
 order to get rid of a troublesome tenant ; Blue v. Mar- 
 shall, 3 P. W. 381. 
 
 A discretion to trustees to lay out a share of residue in 
 the purchase of an annuity is properly exercised by the gift 
 to the intended annuitant of sums arising from the share, 
 for they would have been justified in paying over the 
 •whole to him : Messeena v. Garr, 9 Eq. 260. 
 
 Where trustees, relying on the general principle that 
 they are entitled to all expenses prpperly incurred out of 
 the trust property, advance their own money for a neces- 
 sary purpose, they may have a lien on the deeds, but not 
 a sale or foreclosure : Darke v. Williamson, 25 Bea. 622 ; 
 see post, p. 196 et seq. 
 
 Trustees will have to pay the costs of a suit brought 
 and continued by them in a case in which all parties 
 being sui juris, they for no sufficient reason refuse to 
 concur in acts which they have not satisfied themselves 
 such parties would disapprove : Bradby v. Whitchurch, 
 W. N. 1868, 81. 
 
 As to their liability to such costs in a like case, where 
 one of the parties has lately come of age, see King v. 
 King, 1 D. & J. 663. 
 
 With regard to vexatious objections by trustees to pay 
 over trust funds, see post, p. 232 et seq. 
 
 If there is a discretion to be exercised under the trust, 
 the trustee may apply to cestui que trust for his advice 
 and assistance in the exercise of it, and if the cestui que 
 trust refuse his aid, he may not afterwards be entitled to 
 complain of what the trustee has done in the exercise of 
 his own discretion : Life Ass. of Scotland v. Siddal, 3 D. 
 F. & J. 58, 73, 74. 
 
 If a doubt has arisen upon the validity of an appoint- 
 ment, and the trustee nevertheless acts upon it, he is 
 affected by the consequences which follow upon his 
 recognition of it : Harrison v. Randall, 9 Hare, 397 ; but 
 see post, p. 232. 
 
 Without an express power trustees cannot grant leases 
 even for short terms : Me Shaw, 12 Eq. 124 ; and see 
 
JURISDICTION OVER POWERS OF TRUSTEES. 103 
 
 Wood V. Patteson, 10 Bea. 541. Naylor v. Arnitt, without 
 
 contra, is not followed. power. 
 
 The leave of the Court must, it seems, be obtained to Leave to 
 
 enable trustees to apply to Parliament for a private Act '^l^^J ""^ 
 to sell heirlooms : D' Eyncourt v. Gregory, 3 Ch. D. 635. 
 
 And they must get leave to obtain the insertion of a to procure 
 
 clause in a bill before Parliament : Jones v. Foiuell, 4 Bea 9 6. of clause 
 
 After an action has been brought they must obtain ™ *'i^'- 
 
 leave to bring or defend any other action : Seton, 488. actious. 
 
 Other matters relating to the special discretion of trus- 
 tees will be found in the chapters of this work treating of 
 the cases in which such discretion arises. 
 
 Execution of Trustees' Powers by the Court. 
 
 Though the Court will prevent the failure of the trust Convt 
 by the death of the trustee, or by accident, by ordering its ^^^^^^g 
 execution (Brown v. Higgs, 8 Ves. 570), it will not exe- power, 
 cute a mere power which the trustee may or may not 
 choose to exercise (Ibid.), limiting itself in effect to such 
 powers as the trustee is required to perform : Pierson 
 V. Garnet, 2 B. C. C. 38, 22(j ; Richardson v. Chapman, 
 7 B. P. C. 400; Maddison v. Andrew, 1 Ves. Sen. 57; 
 Burrough v. Philcox, 5 M. & Cr. 92 ; Salusbury v. Den- 
 ton, 3 K. & J. 535. 
 
 Where, therefore, there is a power in the nature of a Power to 
 trust to distribute, but no gift over is made in case no 
 distribution takes place, the Court will take upon itself 
 the distribution on the ground that the objects of it were 
 intended to take at all events : Ee White, Johns. 656. 
 
 And will make such distribution equally on the prin- Mode of 
 
 . ^ , distnbu- 
 
 ciple that equality is equity : D'Oyley v. Attorney-General, tion. 
 4 Vin. Ab. 486 ; Salusbury v. Denton, 3 K. & J. 529. 
 
 Unless some mode of distributing the property is 
 pointed out : Goiver v. Mainwaring, 2 Ves. Sen. 87 ; 
 Mahon v. Savage, 1 Sch. & L. 111. See further as to 
 trust-powers, Sugden on Powers, 590; Farwell on Powers, 
 Chap. XII. 
 
104' POWER OP CONSENT TO MARRIAGE. 
 
 Power to consent to Marriage. 
 
 AUtrus- Where trustees are to have power to consent to the 
 
 t^^s 'o -Pin 1 tj." n 
 
 consent. marriage of a beneficiary as a precedent condition, all 
 
 should join in the consent, including it seems even such 
 
 as have renounced the trust : Worthington v. Evans, 
 
 1 S. & S. 165 ; Boyce v. C'orhally, LI. & G. Plunk. 102 ; 
 
 Ewens v. Addison, 4 Jur. N. S. 10-34. 
 
 Where Where any of them have died, the consent of the sur- 
 
 S0T116 Jirc 
 
 dead. vivors is sufficient : Rop. Leg., 4th ed., 802 ; Dawson v. 
 
 Oliver-Massey, 2 Ch. D. 758, explaining Knight v. 
 
 Cameron, 14 Ves. 389, and Collett v. Collett, 35 Bea. 
 
 312 ; compare 2 Jarm. Wills, 49, and see Theobald on 
 
 Wills, Ch. XXV., p. 309, et seq. 
 Consent in If the consent is to be in writing, such requirement 
 ^" '"^' should be complied with : Worthington v. Evans, 1 S. 
 
 & S. 165 ; Le Jeune v. Budd, 6 Sim. 441. 
 Coasent ty But the consent may be given substantially, though not 
 acqui'e's*- "'^ in terms, by conduct, or be presumed after a long lapse of 
 cence. time: Clarke v. Parker, 19 Ves. 24; Re Birch, 17 Bea. 
 
 358 ; Harrison v. Mayor of Southampton, 4 D. M. & G. 
 
 137. 
 General So a general permission to marry at the discretion of 
 
 the cestui que trust will be enough consent : Pollock v. 
 
 Croft, I Mer. 181 ; Mercer v. Hall, 4 B. C. C. 326. 
 Conditional But the consent may be made conditional on a settle- 
 ment being made : Bashivood v. Bidkeley, 10 Ves. 230. 
 
 consent. 
 
 consent. 
 
 Refusal of Trustees may refuse to consent without giving any 
 
 consent. 
 
 reasons amless it is proved against them that they have 
 
 so acted from any corrupt motives : Dashivood v. Bulke- 
 
 ley, ]0 Ves. 245 ; Clarke v. Parker, 19 Ves. 18 ; and see 
 
 Goldsmid v. Goldsmid, ibid. 368. 
 Fraud. As to the effect of fraud in inducing the cestui que truest 
 
 to marry without consent, see Mesgrett v. Mesgrett, 2 Vern. 
 
 580, explained in Clarke v. Parker, 19 Ves. 12. 
 AVith- The consent may be withdrawn if obtained by fraud, 
 
 conrent."* but not Otherwise : Dillon v. Harris, 4 Bli. N. R. 321 ; Le 
 
 Jeune v. Budd, 6 Sim. 441. 
 
POWER OF TRUSTEES TO BUILD. 105 
 
 Subsequent consent or approbation is ineffectual : Rey- Subse- 
 nish V. Martin, 3 Atk. 330 ; Long v. EicMts, 2 S. & S. IZT """ 
 17.9. 
 
 When the power to consent is given to the trustees, Consent of 
 but is previously exercised by the testator, it is held himself, 
 that the power is sufficiently exercised : Wheeler v. 
 Warner, 1 S. & S. 304 ; Tweedale v. Tweedale, 7 Ch. D. 
 633. 
 
 Power of Trustees to build, repair and cut Tir)iber. 
 
 Money, which under a deed, will, or private act, is to New build- 
 be invested in the purchase of land to be settled to like jJJfiMing^' 
 uses, may be properly applied in the erection of new allowed. 
 buildings, either in addition to or in substitution for old 
 ones : Drake v. Trefuais, 10 Ch. 364 ; Re Leslie, 2 Ch. D. 
 185. 
 
 But not in repairs, permanent improvements or any But not 
 outlay, which does not put new buildings on the ground : ^^P^^"^^- 
 Ihid.; Brunskill v. Caird, 16 Eq. 493. It was held in Appiioa- 
 this case that the several modes of application sanctioned gjXites'^^'^ 
 by the Court under public acts might, with less difS- allowed in 
 culty, be acceded to under a private settlement : Ibid, f^^^i^ ^ 
 p. 366. 
 
 The same principles were followed where accumulations Fund aris- 
 of a fund of personalty, settled on very similar trusts to J^o^g™™ 
 those of the real estate, were ordered to be applied in fund to be 
 rebuilding the mansion-house : Donaldson v. Donaldson, jamj ; 
 
 3 Ch. D. 743. rebuilding 
 
 So also lateral additions to a house have been sane- ™™gg'™" 
 tioned under the Lands Clauses Act, s. 69 : Re 8peer, 3 Lateral 
 
 Ch. D. 262. additions. 
 
 And the erection of new farm buildings or cottages will New farm 
 be allowed: Re Leigh, 6 Ch. 887; Re Newman, 9 Ch. 681. l»i"'ii^g^- 
 
 Or, in additions to, or erecting buildings : Exf. Rector Additions 
 of Claypole, 16 Eq. 574. *° '^™'''- 
 
 But repairs 'of the mansion-house or cottages are not Repairs 
 
 not al- 
 lowed. 
 
 allowed : Dralce v. Trefusis, supra ; Brwnsldll v. Caird, ""' ^^' 
 supra; Re Nether Stowey Vicarage, 17 Eq. 156; Re 
 
106 
 
 POWERS OP MANAGEMENT. 
 
 Money 
 already 
 paid. 
 
 Drainage. 
 
 Water 
 supply. 
 
 Eoads, &o. 
 
 Inquiry as 
 to un- 
 autliorized 
 outlay. 
 
 Repairs, 
 &e. , under 
 general 
 power to 
 manage. 
 
 Where 
 buildings 
 ruinous at 
 testator's 
 death. 
 
 Extent of 
 
 building 
 
 powers. 
 
 Limited 
 Owners 
 Kesidences 
 Act, 1870. 
 
 Ltigh, supra; but see Re Johnson, 8 Eq. 348; Exp. 
 Rector of Grimoldby, W. N. 1876, 96. 
 
 Money already expended is never repaid out of the 
 fund in Court : Re Leigh, supra; Williams v. Aylesbury 
 Railway Co., 9 Ch. 684 ; and see JUxp. Rector of 
 Grimoldby, supra. 
 
 But so much as has not been actually paid will be 
 allowed : Sxp. Rector of Hartington, W. N. 1875, 40 ; 
 Re Rector of Gamston, 1 Ch. D. 477. 
 
 It seems that drainage is a proper object of expense : 
 Re Newman, supra ; Re Leslie, supra. 
 
 Or, a water supply to a house on the estate : Re Croher, 
 W. N. 1877, 38. 
 
 And under the settled Estates Act, 1877, s. 20, streets, 
 roads, paths, squares, gardens or other open spaces, sewers, 
 drains or watercourses, whether for dedication to the 
 public or not, may be made with money in Court under 
 that Act. 
 
 " Where a trustee has spent money on the trust pro- 
 perty in an unauthorised way the rule is to give him, at 
 his own expense, an inquiry whether the trust estate has 
 been to any and what extent benefited. He cannot upon 
 that footing obtain more than what is just." Per James, 
 L. J., in Vyse v. Foster, 8 Ch. 327 ; but see the cases men- 
 tioned in the judgment in Galdecott v. Brown, 2 Ha. 144. 
 
 A general power of management has been held to give 
 a power to trustees to make permanent improvements : 
 Bowes V. Strathmore, 8 Jur. 92. 
 
 Unless there is an undoubted power, trustees cannot 
 repair a building which the testator must have known 
 was ruinous when he died : Bleazard v. Whalley, 2 Eq. 
 Eep. Pt. II. 1095. 
 
 A power of building, given only in conjunction with 
 powers of making agricultural improvements, cannot be 
 exercised for the repair of a mansion-house : Ibid. 
 
 Limited owners may now build and pay for mansion 
 houses under the provisions of the Limited Owners Resi- 
 dences Act, 1870 (33 & 34 Vict. c. 56.) 
 
POWER OP TRUSTEES TO OUT TIM BEE. 
 
 107 
 
 Trustees of freehold land merely directed to be sold 
 having, in the bond fide belief that they were improving 
 the value of the estate, built a villa on the land, were 
 allowed by arrangement to take the freehold land them- 
 selves, including its value in their general account : Vyse 
 V. Foster, 8 Ch. 309 ; L. E. 7 H. L. 318. 
 
 A power to trustees to apply rents in repairs gives none 
 to raise the expenses of rebuilding: Fazakerley v. Cul- 
 sJiavj, 19 W. R 793 ; but see Re Lee, 32 L. T. N. S. 298. 
 
 As to the power of a tenant for life to charge the inhe- 
 ritance with such expenses, see Hibbert v. Cooke, 1 S. & 
 S. 552 ; Re Skingley, 15 Jur. 958 ; Dunne v. Dunne, 3 
 Sm. & G. 22 ; 7 D. M. & G. 207 ; Dent v. Dent, 30 Bea. 363. 
 
 Under 27 & 28 Vict. c. 114, s. 24, trustees have power 
 to obtain advances, to be charged on the property, for the 
 purpose of improvement of land as defined in s. 9 of the 
 same Act; the tenant for life or limited owner keeping 
 down the interest of the charge (sec. 66), and the in-, 
 heritance bearing the capital charge (sec. 49). 
 
 Where a power is given to trustees to cut timber for 
 necessary repairs, they may cut timber on one part of the 
 estates for repairs on another part, and may sell timber 
 when cut, to pay for timber of the same species with the 
 timber so sold to be ajDplied in necessary repairs, so long 
 as they cut no more on the whole property than the 
 repairs of the whole property required : Attorney- General 
 V. Geary, 3 Mer. 513. 
 
 Trustees have a general superintending control over the 
 estate, and may cut decaying timber and pay the proceeds 
 according to the settlement trusts : Waldo v. Waldo, 7 
 Sim. 261 ; 12 Sim. 107. As to the rights of parties to 
 timber money, see Lewis Bowles' Case, Tudor, L. C. R. P. 
 p. 27. 
 
 Trustees may cut timber for thinning plantations, in 
 order to improve the rest of the trees, and such thinnings 
 will belong to the tenant for life, but the decaying timber 
 belongs to the inheritance : Coiuley v. Wellesley, 35 Bea. 
 637; and see Honywood v. Honywood, 18 Eq. 306. 
 
 Building on 
 land do- 
 Tised on 
 trust for 
 sale. 
 
 Raising 
 expense Ly 
 mortgage. 
 
 Charging 
 them on. 
 inherit- 
 ance. 
 
 Statutory 
 power. 
 
 Timler. 
 
 Cutting 
 timber. 
 
108 
 
 ADVICE PETITIONS. 
 
 Working 
 open pits. 
 
 Grants of 
 ■waste. 
 
 Fencing 
 waste. 
 
 They may continue to work open pits for gravel, &c. ; 
 and the tenant for life will have the benefit : 35 Bea. 638. 
 
 They may grant portions of the waste of a manor, as 
 being the ordinary mode of enjoying such property, the 
 fines on the consequent admissions belonging to the 
 tenant for life : Ibid. 64<1. 
 
 But the charges for fencing off such grants are payable 
 out of the estate : Ibid. 
 
 Of Petitions for obtaining the Opinion of the Gourt. 
 
 Rights o£ 
 parties not 
 affected. 
 
 No advice 
 "which 
 leaves 
 question 
 undeter- 
 mined. 
 
 Court will 
 not decide 
 points of 
 construc- 
 tion. 
 
 Nor one on 
 which cases 
 conflict. 
 Definite 
 
 Any trustee may apply by petition or summons for the 
 opinion, advice or direction of the Gourt on any question 
 respecting the management or administration of the trust 
 property. The order operates as a discharge to the trustee, 
 unless fraudulently obtained : 22 & 23 Vict. c. 35, s. 30. 
 
 Under this enactment the Court will advise trustees as 
 to the management and administration of the trust in the 
 manner which will be most for the benefit of the persons 
 beneficially interested ; but will not decide any question 
 affecting the rights of those persons inter se ; Be Lorenz, 
 1 Dr. & Sm. 401. But see Be Ware, 20 W. E. 142. 
 
 Nor will it decide a question which would leave the 
 real contest between the parties undetermined : Re Evans, 
 30 Bea. 232 ; and see Re Mockett, Johns. 628. 
 
 The more recent decisions show that the Court will not 
 under this enactment decide difficult questions of con- 
 struction, or the effect of limitations on a settlement : Re 
 Lorem, supra; Re Mary Hooper, 29 Bea. 656; Re 
 Evans, supra; Re Mochett, supra; nor will the Court 
 entertain the petition when the case goes into details 
 with which it cannot deal effectually without a super- 
 intending power and being informed by afiidavit ; Re 
 Barrington, 1 J. & H. 142. 
 
 Nor a point on which there have been conflicting deci- 
 sions : Re Mockett, supra; and see Re Shaw, 12 Eq. 124. 
 
 The definite question to be asked should be propounded. 
 
ADVICE PETITIONS. 109 
 
 and not a general reference to the Court for its otjinion : question to 
 
 bs suli- 
 
 Re Lorenz, supra ; and see form of petition, Dan. Ch. mitted. 
 Forms, No. 2177. 
 
 No evidence is admissible, the Court looking no further Evidence 
 than the statements on the petition : Re Muggeridge, mitted. 
 Johns. 625 ; Re Barrington, 1 J. & H. 142. 
 
 Nor will an inquiry at Chambers be directed : Re ^° i°- 
 
 inquiries 
 Mockett, supra. directed. 
 
 No opinion will be given upon a fictitious case : Re Fictitious 
 Box, 11 W. K. 945. "''''■ 
 
 The Court has decided on advice petitions as to invest- Invest- 
 ments in East India Stock and Railway Debentures : Re ^ast India 
 Simson, IJ. & H. 89. Stock ; 
 
 In foreign securities : Re Langdale, 10 Eq. 39. tures. 
 
 As to other investments: Re McVeagh, V.-C. W., 25 Foreign 
 May, 18G1 ; Re Knotvles, 18 L. T. N. S. 809 ; Re Shaiu, '""='''■ 
 12 Eq. 124 ; Re French, 15 Eq. 68 ; Re Clergy Orphan '^?°''^^"y- 
 Corpomtion, 18 Eq. 280. 
 
 That coupons payable half-yearly were apportionable : Apportion- 
 Re Rogers, 1 Dr. & Sm. 3-38. _ -;^;„*,^ 
 
 That freehold ground rents might be bought under a Ground 
 power to invest in land : Re Peyton, 7 Eq. 463. "^^iits- 
 
 That personalty to be invested in land, or settled on the Eebuild- 
 same uses as real estate, might be applied in rebuilding : '°°" 
 Re Pearson, 21 W. R. 401 ; Re Hotham, 12 Eq. 76. 
 
 That a power to mortgage authorised a mortgage with Exercise of 
 a power of sale : Re Chawner, 8 Eq. 569. p°^™'-«' 
 
 That a power of sale allows a reserve bidding : Re Reserved 
 Peyton, 10 W. R. 515. bidding. 
 
 As to the exercise of a power of maintenance and ad- Advance- 
 vancement : Re Long, 17 W. R. 218 ; Re Tihhs, 17 W. '"^t- 
 R. 304 ; Re Kershaw, 6 Eq. 322 ; Re Larken, W. N., 
 1872, 85. 
 
 As to the appointment of colonial trustees : Re Long, ^ppoint- 
 17 W. R. 218 ; Re Smith, 20 W. R. 695. ment of 
 
 As to the conversion of leaseholds : Re Shaw, 12 Eq. g^Jg ^f 
 
 J 24. leaseholds. 
 
 As to a power of leasing. Ibid. 
 
11(1 
 
 ADVICE PETITIONS. 
 
 Consent to 
 sale. 
 
 Payment to 
 foreign 
 
 Interest on 
 legacies. 
 
 Liability on 
 covenants. 
 
 Compro- 
 mise. 
 
 Service of 
 petition. 
 
 Practice. 
 
 As to a consent to a sale : Poulett v. Hood, 5 Eq. 115. 
 
 As to payment of a legacy to a person abroad and the 
 proper receipt for it : Re Hellmann, 2 Eq. 36-3. 
 
 As to the payment of interest on legacies : Re Murray, 
 W. N., 1868, 195. 
 
 As to distribution of the trust property, notwithstand- 
 ing liability under the covenants of a lease : Re Green, 2 
 D. F. & J. 121. 
 
 As to agreeing to a compromise : Re Martin, M. R., 28th 
 Dec, 1859 ; Re Mackintosh, 42 L. J. Ch. 208. 
 
 The service of the petition should be left for the direc- 
 tion of the Court at the hearing : Re Cook, W. N., 1873, 
 49 ; and see Re French, 15 Eq. 68. 
 
 With regard to the practice on advice petitions sec 
 Shelford, R P. Stat. 722, and Dan. Ch. Pr. 1942. 
 
CHAPTER XVIII. 
 
 OF SALES BY TRUSTEES. 
 
 Trustees with a power of, or a discretionary ti'ust for, Underwliat 
 sale or exchange, must not exercise it capriciously ; and in stances 
 general should in the one case have some " strong family '* should 
 
 i*» •■11 1 t> GXG" 
 
 purpose ' m v;ew, or m the other, an exchange for some cuted. 
 particular other estate also for such purpose desirable to 
 be acquired : Mortloch v. Buller, 10 Ves. 308; Marshall 
 V. Sladden, 4 De G. & Sm. 468. 
 
 It is the duty of trustees for sale or selling under a Best price 
 power-to do all things to obtain the best price possible: *".''<= ob- 
 Ord V. Noel, 5 Madd. 438 ; Bownes v. Grazehrooli, 3 Mer. 
 200, 208 ; Harper v. Hayes, 2 D. F. & J. 542 ; Nohle v. 
 Ediuardes, 5 Ch. D. 378, 389. 
 
 They must consider not only their duties towards the Trust to be 
 purchaser but towards all their cestuis que trust : Sugd. exercised 
 
 ■*■ -to impar- 
 
 V. & p. GO ; Mortloch v. Bullev, 10 Ves. 308 ; Lord v. tially. 
 ]Vightivick, 4 D. M. & G. 808. 
 
 Trustees should ascertain the value before selling, and Valuat'on. 
 not allow the property to go for less : Gonolly v. Parsons, 
 3 Ves. 62-5 ; Noble v. Edwardes, 5 Ch. D. 378. They 
 may in many cases charge the estate with the cost of a 
 skilled valuation : Sugd. 60 ; Camr)hell v. Walker, 5 Ves. 
 678 ; and see Mortloch v. Buller, 10 Ves. 311. 
 
 They may sell by auction or private contract, unless May sell 
 one of such modes is exclusively pointed out in the trust : or private' 
 Sugd. 60; Daniel v. Adams, Amb. 495; Bulteel v. contract. 
 Abinger, 6 Jur. 410; Noblfi v. Edwardes, supra; 23 & 
 24 Vict. 0. 145, s. 1. 
 
112 
 
 SALES BY TliUSTBES. 
 
 Desorip- 
 iu par- 
 ticulars. 
 
 In lots. 
 
 Part of 
 trust es- 
 tates. 
 
 Sale at 
 under- 
 value. 
 
 Advertis- 
 ing auc- 
 tion. 
 
 Reserve 
 price. 
 
 Buying in. 
 
 Sale at 
 reserve 
 after abor- 
 tive auc- 
 tion. 
 
 Biddings 
 not opened. 
 
 Course 
 where rival 
 offers 
 made. 
 
 Favouring 
 tenant for 
 Ufe. 
 
 They are, -with reference to the Statute of Frauds, suffi- 
 ciently described in particulars as " trustees selling under 
 a power of sale :" Catling v. King, 5 Ch. D. 660. 
 
 They may sell in lots : Orel v. Roel, 5 Madd. 438 ; 
 Thomas v. Townsencl, 16 Jur. 736 ; Hohson v. Bell, 2 Bea. 
 17 ; Harper v. Hayes, supra; and 23 & 24 Vict. c. 145, 
 s. 1. 
 
 A discretionary power given by a testator to sell any of 
 his estates is well exercised by a sale of all of them : 
 Rendlesham v. Meux, 14 Sim. 249. 
 
 If the trustees have done all they can to get the best 
 price, they are not chargeable for a sale at an undervalue : 
 Ord V. Noel, supra. 
 
 If the sale be by auction they should advertise it pro- 
 perly : Ihid. 
 
 They must not fix an auction on a day on which a good 
 attendance cannot be expected : OriDie v. Wright, 3 Jur. 19. 
 
 They may fix a reserve price : Re Peyton, 30 Bea. 252 ; 
 and see Levy v. Pendergrass, 2 Bea. 415. 
 
 But without fixing a reserve they may not buy in 
 {Taylor v. Tabrum, 6 Sim, 281), except under ss. 1 and 2 of 
 23 & 24 Vict. c. 145. 
 
 And if the auction prove abortive they may sell at 
 the reserve: Mather v. Priestman, 9 Sim. 352; JBous- 
 field V. Hodges, 83 Bea. 90 ; and see Mse v. Barnard, 28 
 Bea. 228 ; and with leave of the Court to one of them- 
 selves : Farmer v. Dean, 32 Bea. 327. 
 
 The practice of opening biddings under sales by the 
 Court is not extended to sales by trustees : Harper v. 
 Hayes, 2 D. F. & J. 549. 
 
 When two rival offers are made trustees need not ask 
 one of the intending purchasers to increase his offer before 
 accepting the other : Harpier v. Hayes, 2 D. F. & J. 542 ; 
 nor, though pressed by the cestui que trust, accept one 
 offer rather than another against their own opinion : Selhy 
 V. Bowie, 4 Giff. 300. 
 
 They should do nothing to enable the tenant for life to 
 benefit by the sale at the expense of the remainderman : 
 
SALES BY TRUSTEES. 113 
 
 MoTtlock V. Buller, 10 Ves. 308 ; Lord v. Wightwick, 4 
 D. M. & G. 808. 
 
 But a tenant for life may, being appointed trustee, 7^^^^^ 
 exercise a power q^ sale : Forster v. Abraham, 17 Eq. 351. life a 
 
 And a tenant for life may, if acting bond fide, properly *'^"^'^^- 
 act in the conduct of the sale on behalf of the trustees : ufe con-"'^ 
 HicMeyy. IlicUey, 2 Ch. D. 193, 190 ; and see Hardwick ducting 
 V. Mynd, 1 Anst. 109 ; Rossiter v. Trafalgar^ Assurance 
 Ass., 27 Bea. 377. 
 
 Trustees to pay debts may raise the money by sale or Sale before 
 mortgage without going to the Court which, if the estate tiondecree. 
 was afterwards administered by it, would always support 
 such sale or mortgage : Earl of Bath y. Earl of Bradford, 
 2 Ves. Sen. 586, 590. 
 
 After a suit has been instituted trustees may not sell After it. 
 without leave of the Court : Walker v. Smalwood, Amb. 
 676 ; Annesley v. Ashurst, 3 P. W. 282 ; Turner v. 
 Turner, 30 Bea. 414 ; and see Bousfield v. Hodges, 33 
 Bea. 90. 
 
 Where trustees are not restricted as to the time of sale. Sale ab 
 they will be justified in waiting until the cestui que trust J,°nefi-°^ ° 
 calls upon him to sell, and then, after seeing that the price claries, 
 is fair, they should concur in the sale : Palairet v. Carew, 
 32 Bea. 564. 
 
 And the trustee is not entitled to make his consent con- 
 ditional upon investigations into trusts and matters not 
 relating to the trusts of the property to be sold ; and he 
 does so at the peril of costs of a suit to remove him : Ibid. 
 
 It may be stated generally, that a Court of Equity will No specific 
 not enforce on behalf of a purchaser a contract by trustees, ance where 
 of which beneficiaries have a right to complain as a breach ^^'« i?^in 
 of trust : Ord v. Noel, 5 Madd. 438 ; Mortlock v. Buller, trust. 
 10 Ves. 292 ; Sainsbury v. Jones, 5 M. & Cr. 1 ; Sneesby v. 
 Thorns, 7 D. M, & G. 399 ; White v. Cuddon, 8 CI. & F. 766. 
 
 And in a case where the Court sees that by improper Where in- 
 conditions, or otherwise, a disadvantageous sale will be Ranted! 
 made, it will interfere by injunction ; Dance v. Oolding- 
 ham, 8 Ch. 902, 
 
IM 
 
 SALES BY TRUSTEES. 
 
 Concur- 
 rence of 
 co-trustees. 
 
 Feme co- 
 vert trus- 
 tee. 
 
 Pale with 
 all con- 
 venient 
 
 a year 
 allowed. 
 
 Or more, if 
 discretion 
 hoim fide 
 used. 
 
 Liability 
 liy delay 
 after re- 
 fusal of 
 offer ; 
 
 or after 
 request by 
 cestui que 
 trust. 
 
 Unanimity 
 of bene- 
 ficiaries. 
 
 And for that purpose a beneficiary with a very small 
 interest may institute proceedings : Ibid. 
 
 Co-trustees must concur in the sale ; and a contract 
 entered into by one under a mistaken idea that the other 
 would concur is not binding : Buxton v. Buxton, 1 M. & 
 Cr. 80 ; Sneeshy v. Thome, 7 D. M. & G. 399 ; and see 
 Bulteel V. Abinger, 6 Jur. 410. 
 
 But a sale by a trustee while his co-trustee lies by is 
 binding on the latter : Oliver v. Court, 8 Price, 166 ; Brice 
 V. Stokes, 11 Ves. 319 ; see post, p. 238, et seq. 
 
 If one of the trustees be a female and she marries, she 
 cannot afterwards exercise the trust for sale, and the con- 
 tract cannot then be enforced : Avery v. Griffin, 6 Eq. 
 606. 
 
 Trustees or executors directed to sell with all con- 
 venient speed must sell within a reasonable period, which 
 is usually held to mean a year from the death of the 
 testator : Buxton v. Buxton, 1 M. & Cr. 95 ; Hughes v. 
 Empson, 22 Bea. 181 ; Grayhurn v. Clarkson, 3 Ch. 605 ; 
 ScuUhorpe v. Tipper, 13 Eq. 232 ; Turner v. Buck, 18 
 Eq. 301 ; Marsden v. Kent, 5 Ch. D. 598. 
 
 But if, in the bond fide exercise of their discretion, they 
 do not sell within the year, they will not be made liable 
 for a loss arising soon after: Buxton v. Buxton, supra; 
 Marsden v. Kent, 5 Ch. D. 598. 
 
 But neglect will render them liable, as where the loss 
 occurs by delay after the refusal by them of a reasonable 
 offer to buy : Lowson v. Copeland, 2 B. C. C. 156 ; Powell 
 V. Evans, 5 Ves. 839 ; Tebbs v. Carpenter, 1 Madd. 290 ; 
 Fry V. Fry, 27 Bea. 144. 
 
 Or where they refuse to exercise their power of sale at 
 the request of the beneficiaries : Taylor v. Tabrum, 6 
 Sim. 281 ; and see Harper v. Hayes, 2 D. F. & J. 548. 
 
 But if some of the beneficiaries declare that they do not 
 wish for an immediate sale, the trustees may exercise their 
 discretion, though pressed by one cestui que trust to sell : 
 Marsden v. Kent, 5 Ch. D. 598 ; compare Beeth y'. Hale, 
 2 Moll. 317 ; Pearson v. Lane, 17 Ves, 101, 
 
SALES BY TRUSTEES. 115 
 
 In the case of delay in a sale of shares, it is doubtful I'oss on 
 
 ■whether calls are chargeable as loss against the trustees : shares. 
 Gmyhurn v. Glarkson, 3 Ch. 605. 
 
 All the trustees are equally liable for delay, though not Passive 
 
 all may have been engaged in the active direction of the liable, 
 trust: Oliver v. Court, S Price, 166. 
 
 One of the trustees who did not attain maiority until Infant 
 
 seventeen months after the death of the testator was iiatie. 
 held liable with the others ; SGulthorpe v. Tipper, 13 
 Eq. 232. 
 
 If the trustees have not perversely delayed they will be ^°^^^ 
 
 allowed their costs : Tehbs v. Carpenter, 1 Madd. 290 ; delay 
 
 Taylor v. Tabrum, 6 Sim. 281. ''°* ^'^"^^> > 
 
 Where the question of liability arises in an administra- ^^f:^^ 
 
 • , ,1 -n 1 T /. 1 question 
 
 tion suit, they will have to pay so much of the costs as arises in 
 arise out of their default : Sculthorpe v. Tipper, supra. admmiatra- 
 
 The postponement of the sale for a year is not allowed Delay not 
 to affect the respective rights of tenant for life and '? *ff'=<=' 
 remainderman, whether in the case of real or personal 
 estate, or a reversion : Walher v. Shore, 19 Ves. 391 ; 
 Viclers v. Scott, 3 M. & K. 500 ; Greisley v. Chesterfield, 
 13 Bea. 288 ; Wilkinson v. Duncan, 23 Bea. 469 ; 
 Marshall v. Croiuther, 2 Ch. D. 199. 
 
 The mode of adjustment with reference to interest on Mode of 
 debts and legacies now adopted is settled by the cases of ment : 
 Allhusen v. Whittell, 4 Eq. 295 ; Lambert v. Lambert, 16 
 Eq. 320 ; Marshall v. Croiuther, 2 Ch. D. 199 ; in which 
 the course taken in Greisley v. Chesterfield, 13 Bea. 288, 
 was disapproved. See ante, p. 95, et seq. 
 
 Where the property directed to be sold is a reversion in case of 
 which falls in before sale, the tenant for life will be ^i^.o^'^'^- 
 
 ' version. 
 
 entitled to the value of it at the end of a year from the 
 testator's death : Wilkinson v. Duncan, 23 Bea. 469 ; 
 Wright v. Lambert, 6 Ch. D. 649 ; and see Johnson v. 
 Mouth, 27 L. J. Ch. 305 ; Harrington v. Atherton, 2 D. 
 J. & Sm. 352. 
 
 Legatees will have interest, where the trust is for sale. Eights of 
 ^nd to pay them, from the death : Pearson v. Fearson, 1 i^g''*'^^^- 
 
 I 2 
 
116 
 
 SALES BY TRUSTEES. 
 
 Sale after 
 specified 
 deferred 
 period. 
 
 Postpone- 
 ment or 
 accelera- 
 tion not to 
 alter 
 rights. 
 
 Accelera- 
 tion by 
 surrender 
 of prior 
 life es- 
 tate. 
 
 Duration 
 of indefi- 
 nite 
 
 power of 
 will. 
 
 No per- 
 petuity. 
 
 Sch. & L. 10 ; Spurway v. Glynn, 9 Ves. 483 ; 8hirt 
 V. Westhy, 16 Ves. 393. 
 
 But where there is a mere charge of legacies, trustee.? 
 for sale may defer the sale for a year without paying 
 interest till that time : Turner v. Buck, 18 Eq. 301. 
 
 A direction to sell, with a power to postpone the sale for 
 a given number of years, is held to be directory, and does 
 not preclude the trustees from making a good title after 
 sucli period : Witdicot v. Souch, 1 Eep. in Ch. 97 ; Pearce 
 V. Gardner, 10 Ha. 287 ; Guff v. Hall, 1 Jur. N. S. 972 ; 
 and see Chambers v. Howell, 11 Bea. 6 ; Cole v. Coles, 6 
 Ha. 517. 
 
 But trustees postponing or accelerating the sale cannot 
 thus alter or prejudice the cestuis que trust, who must 
 have their remedy if any loss is occasioned thereby : 
 Hawldns v. Chappel, 1 Atk. 623 ; Gaskell v. Harman, 11 
 Ves. 507. 
 
 So, even against a purchaser, a sale made during the life, 
 instead of at the death, of a person, was not enforced, as 
 there were parties interested who were infants or not sui 
 juris : Blacldow v. Laivs, 2 Ha. 40 ; and see Want v. 
 Stallibrass, L. E. 8 Ex. 175. 
 
 But though a power to charge may not be accelerated 
 by the surrender of a prior life estate, a power of sale may 
 be so accelerated : Truell v. Tysson, 21 Bea. 437, and 
 cases cited arguendo ; Mills v. Dugmore, 30 Bea. 104. 
 
 And a revei-sion may, with the consent of the tenant for 
 life, be sold, though he was not intended to be so bene- 
 fited by the settlement: Clarh v. Seymour, 7 Sim. 67; 
 31inet v. Leman, 7 D. M. & G. 340. 
 
 A power of sale, indefinite as to the time of its exercise, 
 remains in existence as long as there is a settled estate 
 in any part of the property, but not longer: Taite v. 
 Stvinstead, 26 Bea. 525 ; Lantsheiy v. Collier, 2 K. & J. 
 709 ; Jefferson v. Tyrer, 9 Jur. 1083 ; Re Brown, 10 
 Eq. 349 ; and see Trower v. Knigldley, 6 Madd. 134 ; Be 
 Cooke, 4 Ch. D. 464, 
 
 Notwithstanding Ware v. Folhill, 11 Ves. 257, it is 
 
SALES BY TRUSTEES. Il7 
 
 now considered that such a power does not offend against 
 the rule against perpetuities : Cole v. Sewell, 4 Dr. & W. 
 1 ; Lantsbery v. Collier, 2 K. & J. 709. 
 
 The subsettlem6nt of a share of the trust property Power 
 under a power of appointment will keep the power of aUve by 
 sale alive : Re Brown, 10 Eq. 349. sub-settie- 
 
 . ment of 
 
 isut when all the interests have become absolute, the shares, 
 
 existence of a jointure will not prevent the power from When all 
 
 ceasing : Wolley v. Jenldns, 23 Bea. 56. Ibsoluta' 
 
 A settlement in trust for A. for life, with a general po^^r 
 
 , . 1 1 - ends. 
 
 power to appomt by will, does not give an absolute interest 
 to A. so as to extinguish the power : Reid v. Shergold, 10 
 Ves. 370. 
 
 Trustees under different trusts may sell, or concur with Joint sales 
 other trustees or owners in a joint sale of, the different ^i*™o«ier 
 trust estates, or of the trust estate with another property property, 
 if such joint sale is obviously beneficial, and if the trust 
 estate will not be affected by questions or conditions relat- 
 ing to such other trust estate or property : Rede v. Oakes, 
 4 D. J. & Sm. 505 ; Re Cooper and Allen, 4 Ch. D. 802 ; 
 Tolson V. Sheard, 5 Ch. D. 19. 
 
 So undivided shares, or a leasehold or life interest and What 
 the reversion, should if possible be sold together; Re gold' to- ° 
 Cooper and Allen, supra ; Morris v. Debenham, 2 Ch. gather. 
 D. 540. 
 
 After a joint sale, the trustees should apportion the Apportion- 
 price themselves, under proper advice, by putting a value prijg_° 
 on each property separately; not by deducting the 
 value of one from the lump price : Re Cooper and Allen, 
 supra. 
 
 If the sale be of undivided shares, the price is of course 
 apportioned according to the shares : Ibid. ; McCarogher 
 V. Whieldon, 34 Bea. 107. 
 
 On joint sales, where the price is paid into Court, the- 
 apportionment is made by the Court : Cavendish V, 
 Cavendish, 10 Ch. 319. 
 
 A purchaser is not entitled to have the price appor* 
 tiotied till after the sale | and if a fair valuation havo 
 
118 
 
 SALES BY TRtSTEES. 
 
 Onus to 
 prove sale 
 beneficial, 
 
 Sale of 
 land with- 
 out timber. 
 
 Mines 
 without 
 turf a 36 : 
 25&26 
 Vict, 
 u. 108. 
 
 Under 
 Settled 
 Estates 
 Act, 1877. 
 Consents 
 to sales ; 
 
 I'arol con* 
 sent. 
 
 ti-evioua 
 consent4 
 
 been previously made, the Court will not disturb it : 
 Morris v. Debenham, 2 Ch. D. 540. 
 
 If the joint sale be not ex concessis beneficial, the onus 
 is on the trustees to prove that it is so by the evidence of 
 surveyors, &c. ; and the purchaser should see that no 
 cestui que, trust is damnified, as the sale may be im- 
 peached by any beneficiary if it amount to a breach 
 of trust : Rede v. Oalces, supra; Dance v. Goldingham, 8 
 Ch. 902, 913 ; Re Cooper and Allen, supra. 
 
 Trust lands subject to a power of sale may not be sold 
 without the timber ; or, for the purpose of paying debts, 
 the timber without the land : Cockerell v. Cliolmeley, 1 R. 
 & My. 418 ; Bennett v. Wyndham, 23 Bea. 521 ; Buckley 
 V. Howell, 29 Bea. 546 ; Davies v. Wescomb, 2 Sim. 425 ; 
 Kelcewicli v. Marker, 3 McN. & G. 311. 
 
 But now the fact of a mistaken payment of timber 
 money to the tenant for life will not invalidate the sale, if 
 the money be brought into settlement as the Court 
 directs : 22 & 23 Vict. c. 35, s. 13. 
 
 Under 25 & 26 Vict. c. 108, trustees may, with the leave 
 of the Court, sell the surface with a reservation of minerals. 
 As to the practice under this Act see Morgan and Chute, 
 Chancery Acts, 269, 5th ed. 
 
 The petition under this Act need not be served on 
 remaindermen : Re Pryse, 10 Eq. 531 ; Re Na.gle, 6 
 Ch. D. 104. 
 
 And the mines may also be reserved on a sale under the 
 Settled Estates Act, 1877 (40 & 41 Vict. c. 18, s. 19). 
 
 Powers of sale by trustees are construed strictly ; and if 
 the sale is to be with the consent of all the cestuis que 
 trust, it is probably not exerciseable after the death of 
 one ; Sykes v. Sheard, 33 Bea. 114, 2 D. J. & Sm. 6 ; see 
 Haivkins v. Kemp, 3 East, 410. 
 
 Or by a parol consent, when the consent is required to 
 be in writing : Phillips v. Edvjards, 33 Bea. 440; and see 
 Martin v. Mitchell, 2 J, & W, 425 ; but see Of en v. 
 Harvian, 1 D. F. & J. 253, 
 
 The consent must be proved to have been given be- 
 
SALES By TRUSTEES. ]19 
 
 fore action brought : Adams v. Broke, 1 Y. & C. C. C. 
 627. 
 
 Under s. 17 of the Settled Estates Act (19 & 20 Vict. c. Consent by 
 120) re-enacted by s. 34 of the Settled Estates Act, 1877 taiued 
 (40 & 41 Vict. c. 18), where the settlement required the P*'-''^- 
 consent of the person who should be heir-at-law of A., 
 such consent was dispensed with : Beioley v. Carter, 4 
 Ch, 230. 
 
 The alienation of his interest by a tenant for life does Consent 
 not destroy the validity of his consent to a subsequent sale alienation. 
 by the trustees, with the concurrence of the alienee ; 
 Alexander v. Mills, 6 Ch. 124 ; and see Simpson v. 
 Bathurst, 5 Ch. 193 ; Long v. Rankin, in D. P., cited 
 Sugd. Pow. 8th ed.89-5 ; WarhuHon v.Farn, 16 Sim. 625. 
 
 And an involuntary alienation by bankruptcy does not ^*°'^- 
 invalidate the consent : Holdsworth v. Goose, 29 Bea. 
 Ill ; and see Simpson v. Bathurst, 5 Ch. 193. 
 
 And if the trustee in bankruptcy have sold the life- 
 interest, consents of the purchasers are valid ; Eisdell v. 
 Hammer sly, 31 Bea. 255. 
 
 Where the tenant for life is protector of the settlement, Consent of 
 and acts as such in barring the entail, he may still give ^™ ^° '"^' 
 his consent to a sale : Hill v. Pritchard, Kay, 394. 
 
 A trustee may, without the consent of the beneficiaries. Implied 
 sell land devised "to be fairly and equally divided " if it ^"^o^t 
 is necessary to sell to give effect to the intention : Re consent. 
 Cooke, 4 Ch. D. 454. 
 
 Trustees for sale of two-thirds of a leasehold being Bybene- 
 plaintiffs in a partition action, Avere held to sufficiently partition™ 
 represent the beneficiaries to obtain an order for sale actions. 
 without notice to them : Stace v. Gage, 8 Ch. D. 451. 
 
 The trustees should receive the consideration them- Agent re- 
 selves, or by an agent or solicitor duly authorized in p^ce"" 
 writing : West v. Jones, 1 Sira. N. S. 205 ; Re Fryer, 3 K. 
 & J. 317; Robertson v. Armstrong, 28 Bea. 123. 
 
 The consideration must not be an annuity or rent Price not 
 charge : Read v. Shaw, Sugd. Pow. App. 953, cited 3 Y, annuity. 
 & 0. 375 ; Reid v, Shergold, 10 Ves. 370. 
 
120 
 
 SALES BY TRUSTEES, 
 
 To be paid 
 before 
 premium 
 given. 
 
 None to he 
 left on 
 
 Nor left to 
 a future 
 option. 
 
 Building 
 land sold 
 for fee- 
 farm rent. 
 
 Expense of 
 preparing 
 for build- 
 ing. 
 
 Title to be 
 giYcn by 
 trustees. 
 
 Allowance 
 for selling 
 claims. 
 
 Deprecia- 
 tory con- 
 ditions of 
 sale. 
 
 Counsel. 
 
 It should be paid in full before possession is given .' 
 Oliver v. Court, 8 Price, IGG. 
 
 Nor, it seems, may part of it be left on mortgage : 
 Davey v. Burrant, 1 D. & J. 535 ; Thurlow v. Mackeson, 
 L. R. 4 Q. B. 97. 
 
 Nor may directors with power to sell or lease, grant a 
 lease with an option to buy within 21 years, at a price 
 fixed at the time of the lease : Clay v. Ruford, 5 De G. 
 & Sm. 768. 
 
 Under the Settled Estates Act, 1877 (40 & 41 Vict. c. 
 18), s. 18, the consideration for land sold for building 
 purposes may be a fee-farm rent. 
 
 And on a sale by trustees for building purposes, they 
 may charge expenses of preparing the land on the pro- 
 ceeds : Cookson v. Lee, 23 L. J. Ch. 473. 
 
 Trustees must give a good marketable title, like 
 any other vendors : White v. Foljambe, 11 Ves. 343 ; 
 McDonald v. Hanson, 12 Ves. 277 ; Sugd. 69 ; and see 
 Pyrke v. Waddingham, 10 Ha. 1, as to such a title ; 
 Hamilton v. Buckmaster, 3 Eq. 323 ; Mullings v. Trinder, 
 10 Eq. 449. 
 
 In a proper case they will be allow^ed what they may 
 have applied in settling claims interfering with the clear- 
 ness of the title : Forshaw v. Higginson, 8 D. M. & G. 
 827. 
 
 And trustees will be relieved from personal under- 
 takings given to purchasers to settle such claims : 
 Wedgwood v. Adams, 6 Bea. 600 ; 8 Ibid. 103. 
 
 The conditions of sale must be reasonable, and not 
 depreciatory, whether they are authorized to introduce 
 special conditions or not : Hobson v. Bell, 2 Bea. 17 ; 
 Dance v. Goldingham, 8 Ch. 903 ; and see Rede v. 
 Oakes, 4 D. J. & S. 513. As to what conditions are 
 considered depreciatory, see Falkner v. Equitable Soc, 4 
 Drew. 352, and Dart, V. & P. 73 ; 1 Dav. Conv. 507, and 
 cases there cited ; but see 23 & 24 Vict. c. 2. 
 
 Trustees may employ counsel to draw the conditions ; 
 Fxp. Lewis, 3 M. D, & D. 173. 
 
SALES BY TRUSTEES. \Z^ 
 
 Misdescription deprives them of right to compensa- Misdescrip- 
 tion; White V. Cuddon, 8 CI. & F. 766; Sugd. H. L. *'°°- 
 590. 
 
 But it seems they may have to make compensation : Compensa- 
 Crompton v. Melbourne, 5 Sim. 353. As to what con- ''°°' 
 stitutes misdescription, see Dart, 133. 
 
 Where the settlement creates an expectant succession, Succes- 
 and contains a power of sale with a direction to reinvest in ^'™ " ^' 
 land, the succession duty is removed to the substituted 
 property, or the proceeds of the sale till reinvestment : 
 16 & 17 Vict. c. 51, s. 42; Diigdale v. Meadows, 6 
 Ch. 501. 
 
 Trustees may sell without excluding the rules in s. 2 of Vendor and 
 the Vendor and Purchaser Act, 1874 : 37 & 38 Vict. c. 78, ^^^^^\_ 
 s. 3, q. V. post, p. 144. 
 
 Trustees for sale covenant usually only against incum- Covenant 
 brances by them, and not for title : see Dart, 85 ; Sugd. by trustees. 
 69 ; and the cases cited in Lewin, 386 n. (/). 
 
 A concurring beneficiary must covenant for title : By concur- 
 Poulett V. Hood, 5 Eq. 115. Sy'"" 
 
 Beneficiaries need concur only when the trustees cannot When 
 give receipts : Binlcs v. Rolceby, 2 Madd. 227 ; Re London ""f^^l ^^^_ 
 Bridge Acts, IS Sim. 176. cur; 
 
 The Court is not in the habit of requiring their con- °" ^^'^^ ''? 
 currence in sales under its direction : Gottrell v. Cottrell, 
 2 Eq. 330 ; Freeland v. Pearso7i, 7 Eq. 246 ; Wyman v. 
 Carter, 12 Eq. 309. 
 
 Trustees selling leaseholds have no right to a covenant Covenants 
 by the purchaser to perform the covenants of the original {"^g^iioids 
 lease : Lewin, 388, citing Willci7is v. Fry, 1 Mer. 244 ; 
 Garratt v. Lancefield, 2 Jur. N. S. 177; Wms. Exors. 
 1751. 
 
 As to the I'ules of the Court in providing an indem- Indemnity 
 city fund against such covenants, in an administration i^^eM^^™ 
 suit, sec Smith v. Smith, 1 Dr. & Sm. 384 ; Lewin, 388 ; covenants. 
 22 & 23 Vict. c. 35, s. 77 ; Eeilly v. Reilly, 34 Bea. 
 406. 
 
 But trustees enter into covenants to produce deeds Covenants 
 
nz 
 
 SALES BY TECJSTEES. 
 
 for jiio- 
 ductiou. 
 
 Enfran- 
 chisement, 
 
 Convey- 
 ance of 
 outstand- 
 ing legal 
 estate. 
 
 Costs of 
 specific 
 perform- 
 ance suit. 
 
 Sm-vival of 
 trust for 
 sale. 
 
 Conversion 
 out and 
 out does 
 not warrant 
 mortgage. 
 
 Settled 
 leaseholds. 
 
 Where 
 estate 
 benefited 
 by mort- 
 gage or a 
 sum to be 
 raised. 
 
 ' ' Mortgage 
 is con- 
 ditional 
 sale," ex-- 
 plained. 
 
 limited to the time during which they are in their own 
 hands : see the form, Lewin, 387 n. (d). 
 
 The convej'ance on an enfranchisement of copyholds 
 should be made to the trustees, and not the cestui que 
 trust: Wilson v. Allen, 1 J, & W. 611; Minton v. 
 Kiricood, 3 Ch. 619. 
 
 An outstanding legal estate must be conveyed to the 
 trustees of the equitable estate without requiring the 
 beneficiaries to join : Angier v. Stannard, 3 M. & K. 
 506. 
 
 Trustees are primarily liable for the costs of a specific 
 performance suit ; but may recover them from their 
 cestuis que trust : Edwards v. Harvey, G. Coop. 40 ; 
 Hill V. Magan, 2 Moll 460; Turner v. Harvey, Jac. 
 178. 
 
 On the death of a trustee, the surviving trustee may 
 exercise a trust for, or discretionary power of, sale : LaTie 
 V. Debenham, 11 Ha. 192 ; Hall v. May, 3 K. & J. 58.5 ; 
 Farwell, Powers, p. 367, et seq. 
 
 A trust for conversion out and out is not duly executed 
 by a mortgage : Haldenhy v. Spofforth, 1 Bea. 395 ; 
 Stroughill v. Anstey, 1 D. M. & G. 643 ; Page v. Cooper, 
 16 Bea. 396 ; Devaynes v. Robinson, 24 Bea. 86. 
 
 This is especially the case where leaseholds are given 
 generally to persons in succession with the consequences 
 arising from the rule in Hoive v. Barhnouth, 7 Ves. 150, 
 ante, p. 91 : Stroughill v. Anstey, 1 D. M. k G. 643. 
 
 But if a particular charge is to be raised, a mortgage 
 and not a sale may be allowed under circumstances of 
 benefit to the estate : Ihid. 642. 
 
 Where the Court supports a mortgage instead of a sale 
 out and out for the reasons mentioned above, it does so 
 not because a " power to sell implies a power to mort- 
 gage," (as stated in Mills v. Banks, 3 P. W. 1, 9; Halden- 
 hy V. Spofforth, 1 Bea. 390, 395 ; Ball v. Harris, 4 M. 
 & Or. 264, 267), but as a conditional sale, or a 2^i'oper 
 mode of raising the money : Stroughill v. Anstey, 1 D. 
 M. & G. 645. 
 
SALES BY TEtJSTEES. 123 
 
 Where a general trust directs no mode of ralsino- Mode of 
 
 & 
 
 charges, there is an implied trust to raise them, and a charges not 
 inortgage as well as a sale will be supported : Ball v. pointed 
 Harris, 4 M, & Cr. 264 ; StrougUll v. Anstey, 1 D. M. 
 & G. 647. 
 
 That the exigencies of the estate require a mortgage Proof of 
 rather than a sale must be proved by the trustees : fo^r^o^'i.t'. 
 Bevaynes v. Robinson, 24 Bea. 92. ga^ge- 
 
 A mortgage by executors many years after the testator's Mortgage 
 death should set a mortgagee on inquiry how debts re- tors after 
 quiring that course could subsist : Ibid. many 
 
 In an action by a mortgagee for foreclosure holding a „ ', , 
 
 I T ° ° Remedy of 
 
 mortgage granted by trustees for sale out and out, it seems mortgagee, 
 that he will not be entitled to ask that the property be 
 sold to satisfy his debt : FalJc v. Clinton, 12 Ves. 48 ; 
 Page v. Cooper, 16 Bea. 396. 
 
 A power in trustees to mortgage authorises them to Powers of 
 insert a power of sale as incident to the mortgage : moiVa^cs. 
 Bridges v. Longman, 24 Bea. 27 ; Me Chawner's Will, 
 8 Eq. 569 ; and see Leigh v. Lloyd, 2 D. J. & Sm. .330 ; 
 Clarke v. The Panopticon, 4 Drew. 26, contra, has been 
 disapproved : and see 23 & 24 Vict. c. 125, s. 11, imder 23 & 24 
 which a power of sale is included unless expressly i25''s''ii 
 excluded. 
 
 The same right is extended to executors : Russell v. 
 Plaice, 18 Bea. 21 ; Cruikshank v. L>uffi,n, 13 Eq. 555. 
 Sanders v. Richards, 2 Coll. 568, contra, has not been 
 followed. The Court usually inserts a power of sale on a 
 mortgage directed by it, if the mortgagee should require 
 it : Selby v. Cooling, 23 Bea. 418. 
 
 A trust for sale does not authorise a partition : Brassey Pa-^ition 
 V. Chalmers, 4 D. M. & G. 528. for sale ; 
 
 But it seems now to be settled that a power of exchange ^™'^^'" „ 
 
 1 , power of 
 
 does authorise a partition etiected by a partition deed : exchange, 
 Re Frith and Osborne, 3 Ch. D. 618, in which the pre- 
 vious decisions are reviewed. 
 
 Prima facie a trust for sale does not justify a lease ; Lease 
 but if circumstances appear under which such, a lease for sale. 
 
1^4 
 
 TEtJSTS FOE, SALE : RECEIPTS OP TRUSTEES. 
 
 Trust to 
 sell an 
 equity of 
 redemption 
 and pay oif . 
 Sale under 
 direction 
 of mort- 
 gnge. 
 
 might be upheld, no decree will be made in an action 
 to enforce the agreement for the lease against the lessee 
 in the absence of the cestui que trust : Evans v. Jackson, 
 8 Sim. 217 ; and see as to such leases by executors or 
 administrators, Keating v. Keating, LI. & G., t. Sugd. 
 133 ; Hachett v. McNamara, ibid. t. Plunk. 283 ; Wil- 
 liams, Exors. 93.9. 
 
 A trust for sale of property with a direction to pay off 
 a mortgage will not prevent a sale subject to the mort- 
 gage : Manser v. Bix, 8 D. M. & G. 703. 
 
 A direction by a testator that money should be raised 
 by mortgage has been held not to authorise a sale, though 
 the trustee reported it to be more beneficial ; Brake v. 
 Whitmore, 5 De G. & Sm. 619. 
 
 Discharge 
 under 
 Lord St. 
 Leonards' 
 Act (22 & 
 23 Vict, 
 c. 35), s. 
 23. 
 
 Under 
 Lord Gran- 
 worth's 
 Act (23 & 
 24 Vict. 
 0. 145), 
 s. 29. 
 
 Discharge of the PvA-chaser by the receipt of the 
 Trustee. 
 
 Under instruments executed since 13th August, 1859 : — 
 " The bond fide payment to, and the receipt of any 
 person, to whom any purchase or mortgage money shall 
 be payable upon any express or implied trust, shall 
 effectually discharge the person paying the same from 
 seeing to the application, or being answerable for the 
 misapplication thereof, unless the contrary shall be 
 expressly declared by the instrument creating the trust 
 or security": 22 & 23 Vict. c. 35, s. 23 (Lord St. 
 Leonards' Act). 
 
 Under instruments executed since 2Sth August, 1860: — 
 " The receipts in writing of any trustees or trustee for 
 any money payable to them or him by reason or in exe- 
 cution of any trusts or powers reposed or vested in them 
 or him, shall be sufficient discharges for the money therein 
 expressed to be received and shall effectually exonerate 
 the persons paying such money from seeing to the appli- 
 cation thereof, or from being answerable for any loss or 
 misapplication thereof " : 23 & 24 Vict, c. 145, s. 29 (Lord 
 Oran worth's Act). 
 
TRUSTS FOR SALE : RECEIPTS OF TRUSTEES. 125 
 
 In cases not falling within these Acts, the following 1° cases 
 
 rules have been adopted by the Courts : — the Acts."^ 
 
 The purchaser is completely discharged by the trustee's 
 receipt : 
 
 (1.) Where an express power to give such receipt is l. Express 
 
 vested in the trustee in terms discharging the pur- dis^har^e 
 
 chaser from seeing to the application of the money: purchaser. 
 Lewin, pp. 394 — 5 : Binlas v. Lord Rohehy, 2 Madd. 
 227. 
 
 But such an express power may be controlled by a Intention 
 
 contrary intention ; Brasier \. Hudson, 9 Sim. 1. mscha7e*° 
 
 And its terms must be strictly applicable to the par- Power 
 
 ticular fund received : Pell v. Be Winton, 2 D. & J. 13 ; T?\}'^ 
 
 ' > strictly 
 
 Cox V. Cox, 1 K. & J. 261. applicable. 
 
 Thus a power to invest on "security" {Wood v. Har- 
 onan, 5 Madd. 368) ; or to vary securities (Locke v. Lomas, 
 ■5 De G. & Sm. 326), will give a power of discharge. But 
 a power to invest on " securities " implies no power to 
 give receipts on an investment on mortgage of land, which 
 is a real security : Hanson v. Beverley, Sugd. V. & P. 
 848, 11th ed. 
 
 And a power of sale and exchange implies no power to Power of 
 give receipts : Cox v. Cox, 1 K. & J. 251. '""^^ ^""^ 
 
 Nor does a trust to raise money by mortgage or sale : Trust to 
 
 Locke V. Lomas, 5 De G. & Sm. 329. ""J^l^^Z. 
 
 ' mortgage. 
 
 (2.) Where a clear immediate trust for sale is contem- 2. Where 
 
 plated, and no receiving power is given, and no persons onT^can 
 
 save the trustees can give immediate receipts : as in the give im- 
 
 case of incapacity in the beneficiaries : Soivarsby v. Lacy, receipt. 
 
 4 Madd. 142 ; Lavender v. Stanton, 6 Madd. 46 ; Breedon Infancy. 
 V. Breedon, 1 R. & M. 413. 
 
 Or of the impossibility of ascertaining the beneficiaries Unascer- 
 
 at the time of the sale : Balfour v. Welland, 16 Ves. 151 ; *^™«f 
 
 ■' ' benefi- 
 
 Groom v. Booth, 1 Drew. 548, 566. claries. 
 
 (3.) Where a trust for sale is declared with discretionary 3. Where 
 trusts as to laving out the purchase-money: Doran v. ^''^'^^^-re 
 
 „ T ■ ht 1 -rrr v trusts over 
 
 Wiltsliire, 3 Swans. 699 ; Lewm, p. 397, and Wood v. Har- requiring 
 man, Madd. 368 ; Locke v, Lomas, 5 D. G. & Sm. 326 ; ^j'™"""' 
 
126 
 
 TRUSTS FOR SALE : RECEIPTS OF TRUSTEES. 
 
 4. Where 
 trust, foi* 
 sale for 
 payment 
 of debts or 
 legacies 
 generally. 
 
 When the 
 debts are 
 paid or 
 never 
 existed. 
 
 Mention of 
 one debt 
 followed by 
 general 
 trust for 
 payment. 
 
 After in- 
 quiry by 
 purchaser 
 if there are 
 debts. 
 
 Charge of 
 debts same 
 as trust. 
 
 Trustees 
 selling 
 more than 
 enough to 
 pay debts. 
 
 Ford V. Ryan, 4 Ir. Ch, R. 342 ; Tait v. Lathhury, 85 
 Bea. 112. 
 
 (4.) Where a trust directs the land "to be sold for the 
 payment of debts generally," or of debts, legacies, and 
 annuities, or where the land is charged with such pay- 
 ment : Mliot V. Merryman, 1 W. & T. L. C. 64; Stroucj- 
 Idll V. Anstey, 1 D. M. & G. 635 ; Rogers v. SldlUcorne, 
 Amb. 188 ; Boiding v. Hudson, 17 Bea. 248 ; Watldns 
 V. Cheek, 2 S. & S. 199 ; Johnson v. Kennett, 3 M. & K. 
 624 ; Eland v. Eland, 1 Bea. 235 ; Corser v. Carhuright, 
 L. R. 7 H. L. 731. 
 
 The fact that debts and legacies are charged, and that 
 the debts have been paid at the time of the sale, or that 
 there were none at the death of the testator, does not invali- 
 date the receipt : Johnson v. Kennett, 3 M. & K. 624 ; Eland 
 V. Eland, 4 M. & Cr. 429 ; Page v. Adam, 4 Bea. 269 ; 
 Forbes v. Peacock, 1 Ph. 7l7 ; Stroughill v. Anstey, 1 
 D. M. & G. 635, 652 ; Carlyon v. Truscott, 20 Eq. 348. 
 
 The mention of one specific debt, if followed by a general 
 charge of debts, does not prevent the rule from applying: 
 Robinson v. Lowater, 5 D. M. & G. 272. 
 
 An inquiry by the purchaser as to subsisting debts, if 
 addressed after a long period of time since the death of 
 the testator to beneficiaries who had become absolutely 
 entitled to the legal estate, being unanswered, the pur- 
 chaser was held to be sufficiently discharged : Sabin v. 
 Heape, 27 Bea. 553. 
 
 That a general charge of debts gives an equal power 
 with a trust to pay them to give valid receipts, see Shaw 
 V. Borrer, 1 Keen, 559, 574 ; and see Elliot v. Merryman, 
 supra ; Jenkins v. Ililes, 6 Ves. 654, n. ; Bailey v. Ekins, 
 7 Ves. 323 ; Bolton v. Hewer, 6 Madd. 9 ; Bcdl v. Harris, 
 4 M. & Cr. 267 ; Forbes v. Peacock, supra; Commissioners 
 of Charitable Bonations v. Wybrants, 2 J. & L. 197. 
 
 The charge of debts relieves the purchaser from the 
 necessity of ascertaining whether the trustees are selling 
 more than is required to pay them : Spalding v. Shalmer, 
 1 Vcrn, 303, 
 
TRUSTS FOR SALE : RECEIPTS OP TRUSTEES. 127 
 
 And from inquiring as to a deficiency in the personal Deficiency 
 estate : Culpepper v. Aston, 2 Ch. Ca. 115 ; Greetham v. aity. 
 Cotton, 34 Bea. 615 ; but see, contra, Carlyon v. Truscott, 
 20 Eq. 348. 
 
 If the trust directs that lands shall be sold for the pay- 
 ment of certain debts, mentioning in particular to whom 
 those debts are owing, the purchaser is bound to see the 
 money applied for the payment of those debts , Elliot v. 
 Merryman, supra; Rogers v. Sldllicorne, Amb. 189 ; 
 Smith V. Guyon, 1 B. C. C. 186 ; Lloyd Y.JBaldiuin, 1 Ves. 
 Sen. 173 ; Culpepper v. Austin, 2 Ch. Ca. 223 ; Johnson 
 V. Kennett, 3 M. & K. 630 ; Horn v. Horn, 2 S. & S. 448. 
 
 This rule also is applicable to cases where the instru- I'^ule ap- 
 ment is dated before the 13th August, 1859, for it appears casesbefore 
 that s. 23 of the Act (cjted above) is not retrospective : J""^'^ ^*- , 
 Bennett v. Lytton, 2 J. & H. 158; Lewin, 394. Act.' 
 
 After a general charge of debts has been satisfied, the Does not 
 purchaser need not see that legacies also charged have f^JadeT*" 
 been paid: Johnsons. Kennett, supra; Page Y.Adam, ■wtere 
 4 Bea. 269 ; Stroughill v. Anstey, supra. chargetr 
 
 Upon the question as to who is entitled to sell and give ^'^ I'^i'^- 
 receipts, Avhere there is a charge of debts and no trust for ^gj^^f ^n^ 
 their payment by sale or otherwise : Lord St. Leonards' no direc- 
 Act (22 & 23 Vict. c. 35) enacts as to wills subsequent to paym^ent 
 13th August, 1859 :— 
 
 That the trusteesfor the time being may sell or mortgage, 22 & 23 
 notwithstanding the absence of any express power in the Jg'^i^Lis' 
 will : ss. 14, 15. 
 
 That if there be no devise to trustees the executors may 
 sell or mortgage in like manner:- s. 16. 
 
 That purchasers or mortgagees need not inquire whether 
 a sale or mortgage thus effected has been correctly effected 
 according to the statutory power : s. 17. 
 
 That these provisions are not to affect beneficial devises 
 subject to debts or the power in such devisees to sell or 
 mortgage : s. 18. 
 
 As to wills prior to 13th August, 1859, Cases be- 
 
 1. A charge of debts with a devise to trustees, but with- ^™^ ^'^'' 
 
 1. Where 
 
128 
 
 TBDSTS FOR SALE : BECEIPTS OF TRUSTEES. 
 
 trustees 
 also exe- 
 cutors. 
 
 Receipts 
 hy execu- 
 tors. 
 
 2. Benefi- 
 cial devise 
 charged 
 ■with debts 
 gives power 
 to dis- 
 charge 
 purchaser. 
 
 3. Devise 
 to persons 
 successive- 
 ly gives 
 power to 
 executors. 
 
 4. Charge 
 of dehts 
 and no 
 devise : 
 heir cannot 
 sell but 
 should join 
 with exe- 
 cutors, 
 
 out an express power to sell, has been held to give the 
 trustees such power : 8haw v. Borrer, 1 Keen, 559 ; Ball 
 V. Harris, 4 M. & Cr. 264 ; Eidsforih v. Armstead, 2 K- 
 & J. 333 ; Sabin v. Heape, 27 Bea. 553; Gorser v. Cart- 
 wright, L. E. 7 H. L. 731. 
 
 But in other instances it was supposed that the executors 
 had in such a case an implied power of sale : Wrigley v. 
 Sykes, 21 Bea. 337 ; Golyer v. Finch, 5 H. L. C. 905. In 
 one case, however, it was held that the executors had the 
 power, coupled with that of calling on the trustees to 
 conve}' the legal estate : Hodkinson v. Quinn, 1 J. & H. 
 303, 309; 30 L. J. Ch. 118 ; and see Hooper v. Strutton, 
 12 W. R. 367 ; see Dart, 567. 
 
 2. A devise to a beneficiary charged with debts and 
 legacies, or annuities, gave him a power of sale : Elliot v. 
 Merryman, 1 W. & T. L. C. 64 ; Page v. Adam, 4 Bea. 
 269 ; Golyer v. Finch, 5 H. L. C. 922 ; Lewin, 406, 410 ; 
 Dart, 568 ; but see 2 Dav. Conv. 990. From the words 
 of s. 18 of Lord St. Leonard.?' Act it seems that the Legis- 
 lature assumed this power existed, for after excepting this 
 kind of devise from the Act it also saves " the power of 
 any such devisee or devisees to sell or mortgage as he or 
 they may by law now do." 
 
 3. A devise, subject to debts, to a series of persons, but 
 without a direction as to payment, has been lield to give 
 the executors a power of sale : Robinson v. Lowater, 5 D. 
 M. & G. 272; Bolton v. Stannard, 4 Jur. N. S. 576 ; 6 
 W. R. 570 ; Sabin v. Heape, supra ; Greetham v. Golton, 
 34 Bea. 615; but see Gooh v. Dawson, 3 D. F. & J. 127. 
 Mr. Lewin thought that here the executors had an equit- 
 able power, with the right to call upon the depositaries of 
 the legal estate to convey : p. 410. See s. 16 of Lord St. 
 Leonards' Act, supra. 
 
 4. A charge of debts without a devise of the land gives 
 the heir no power of sale, but if the executors sell it seems 
 that the heir should join in the conveyance : Gosling v. 
 Garter, 1 Coll. 644 ; and see Golyer v. Finch, 5 H. L, C. 
 922 ; Lewin, p. 408, 410, 
 
SALES BY TRUSTEES — RECEIPTS 01? TRUSTEES. 129 
 
 5. A charge of debts, where the devisee dies in the life- 5. Charge 
 time of the testator, leaves no power in any one to sell, devise 
 and the Court alone can probably effect a sale : see Lewin, l^^P^ss. 
 p. 409. 
 
 Notwithstanding a general charge of debts or legacies, Notice to 
 and notwithstanding the statutory provisions referred to, ^^^^ sTiris 
 circumstances amounting to notice to the purchaser that a breach 
 the sale is improper, or his actual participation in such prevents 
 impropriety, will leave him unprotected by the trustee's ^^^ '^'^" 
 receipt : Stroughill v. Anstey, 1 D. M. & G. 651 ; and 
 see WatJmis v. Cheek, 2 S. & S. 199, 205 ; Colyer v. 
 Finch, 5 H. L. C. 923 ; but see Corser v. Cartwright, 
 L. R. 7 H. L. 731, 737. 
 
 A purchaser, knowing that a sale is being effected by a Sale not 
 person who is not beneficial owner and not for the pay- "J °J^^^t 
 ment of any charge on the property, would not be absolved paying 
 from seeing to the application of the purchase-money : " ^'^^^' 
 WatJcins v. Cheek, supra ; Barrow v. Griffith, 11 Jur. N. 
 S. 6. 
 
 A sale by trustees ostensibly for the payment of Sale by 
 debts, at a time so long after the date of the charge ^^'^JJen dlbts 
 that the debts must probably have been paid, should must have 
 put the purchaser upon his inquiry as to the propriety paid. °°° 
 of the sale: Stroughill v. Anstey, supra; Devaynes v. 
 Robinson, 24 Bea. 93; but see Sabin v. Heape, 27 Bea. 553. 
 
 As a suit paralyses the powers of trustees, a sale by Sale after 
 them after its institution must be at least a matter for ^Jou^ht 
 inquiry: Lloyd v. Baldiuin, 1 Ves. Sen. 173; Walker y. 
 Smallwood, Amb. 676. 
 
 Notice of registered judgments will not affect a pur- Notice of 
 chaser from a trustee for sale and distribution who is J'l'is™^^'^- 
 also executrix : Drummond v. Tracy, Johns. 608. 
 
 Notice that the personal estate is sufficient, and that Notice that 
 the debts are paid, where the realty was to be sold only ^^§""^1*^ 
 in the case of a deficiency, is notice to a purchaser of a 
 breach of trust within the above rule : Carlyon v. Truscott, 
 20 Eq. 351. 
 
 Notice of a breach of trust is not to be implied from Object of 
 
 K 
 
130 
 
 SALES By TEUS5?EES — EECEIP^TS OF TEUSTEES. 
 
 sale not 
 disclosed. 
 
 Burden of 
 proof. 
 
 the fact that the purpose of the sale is not stated : Corser 
 V. Cartwright, L. E. 7 H. L. 731. 
 
 The onus is on the objecting creditor to show that the 
 purchaser had notice of a breach of trust : Corner v. 
 GartivrigM, supra; Oram v. Richardson, W. N., 1877, 
 13. 
 
CHAPTER XIX. 
 
 TRUSTS FOE, AND POWERS OF, INVESTMENT. 
 
 Unless expressly forbidden by the settlement, trustees Lord St. 
 may now invest any trust fund on mortgage, Bank Stock, ^5™^ 
 or East India Stock : Lord St. Leonards' Act, 22 & 23 
 Vict. c. 35, s. 32 ; see post, p. 132. 
 
 Indefinite or Iviperfect To-ust to Invest. 
 
 Previously to this enactment it was much doubted Absence of 
 whether any trust moneys, not subject to a trust for towct'-"^ 
 investment in specified securities, or merely coming to purchase 
 persons clothed with a trust, could be invested on mort- 
 gage or on other than Consols : Holland v. Hughes, 16 
 Ves. 114 ; Robinson v. Robinson, 1 D. M. & G. 247, 255 ; 
 Raby v. Ridehalgh, 7 D. M. & G. 104. See also 23 & 24 
 Vict. c. 145, s. 25, infra. 
 
 Mortgages were not allowed where the trust was to Mortgage, 
 invest in Consols : Pride v. Fooks, 2 Bea. 432. 
 
 And the Court required a very special case to be made Unau- 
 to sanction a mortgage to secure funds not subject to an *''°™^'^ 
 express trust to invest : Exp. FranJdyn, 1 De G. & Sm. 
 528 ; Baud v. Fardell, 7 D. M. & G. 633 ; Shaw v. 
 Bunny, 2 De G. J. & Sm. 68 ; and see Raby v. Ridehalgh, 
 supi-a. 
 
 However, as between Consols and other Government Choice of 
 stocks, ti-ustees were not held liable for fluctuations : '^°^®™" 
 Clough V. Bond, 3 M. & Cr. 496. securities. 
 
 And it was held that a power to invest on " Government Eeteution 
 or other good security " justified the retention of Navy p-^r^ 
 
 K 2 
 
133 
 
 INVESTMENT — EXCHEQUER BILLS. 
 
 Of India 
 Stock. 
 
 Kedeem- 
 atle secu- 
 ritities. 
 
 Railway 
 
 preference 
 
 stock. 
 
 Income of 
 legacy to 
 be paid on 
 specified 
 days. 
 
 5 per Cents ; Baud v. Fardell, 7 D. M. & G. 628 ; Angell 
 V. Dawson, 3 Y. & C. 308. 
 
 But India Stock was not allowed to be retained where 
 the trust was to invest in Government or real securities : 
 Bimes v. Scott, 4 Russ. 195. 
 
 An evident discretion as to investment will not allow 
 trustees to invest in other than permanent or irredeemable 
 securities ; and they may be liable for depreciation in such 
 cases, especially where infants are entitled in remainder : 
 Stewart v. Sanderson, 10 Eq. 26, a case of investment in 
 7 per Cent. Preference Railway Stock ; and see Waite v. 
 Littlewood, 41 L. J. Ch. 636. 
 
 If a settlor simply directs interest to be paid to a bene- 
 ficiary on certain days, that Government security on which 
 tlie dividends are payable on or about such days is a 
 proper security : Galdecott v. Galdecott, 4 Madd. 189. 
 
 Exclieqixer 
 Bills. 
 
 For a tem- 
 porary pur- 
 IMse. 
 
 Practice of 
 Court. 
 
 Exchequer Bills. 
 
 Trustees may not invest in Exchequer Bills as a 
 Government security, except under the Order of February, 
 1861, presently noticed : see Knott v. Cottee, 16 Bea. 77. 
 
 But for a temporary purpose, as for employing money 
 until a mortgage is completed, such an investment was 
 allowed : Matthews v. Brise, 6 Bea. 239. 
 
 The Court has temporarily invested funds in Exchequer 
 Bills : see Exp. South Eastern Railway Covipany, 9 Jur. 
 650 ; but see Exp. Chaplin, 3 Y. & C. 397, contra. 
 
 Lord St. 
 
 Leonards' 
 
 Ach. 
 
 23&24 
 Vict. c. 38. 
 s. 12. 
 
 Money 
 arising 
 from sales 
 
 Statutory Powers of Investment. 
 
 The 32nd section of Lord St. Leonards' Aet, above re- 
 ferred to, being held not to be retrospective {Re Miles, 27 
 Bea. .579), it was made so by s. 12 of 23 & 24 Vict. c. 38. 
 Rights accrued between the dates of these two Acts are 
 not affected by the latter Act : Hume v. Richaixlson, 8 
 Jur. N. S. 686. 
 
 Where no provision is made, money arising from sales 
 or exchanges of land are to be laid out on other land in 
 
STATUTORY POWERS OF INVBSTMKNT. l33 
 
 England or in paying off incumbrances : 23 & 24 Vict, or ex- 
 c. 145, ss. 4, 0, and 6. " ^"^*^" 
 
 These Acts do not apply where moneys have been in- Where no 
 
 powei ' 
 vary. 
 
 vested in Bank Annuities and the trustees have no power ^"^^^ 
 
 to vary : Re Warde, 2 J. & H. 191. 
 
 But in another case (in which Re Warde was not cited) 
 Lord Romilly allowed such a variation, provided that the 
 trustees did not invest in redeemable securities at a 
 premium : Waite v. Littleivood, 41 L. J. Ch. 636. 
 
 By s. 12 of the 23 & 24 Vict. c. 38, trustees to invest in " Cash 
 Govorument or Parliamentary securities may invest on trol^th^' 
 securities in which " cash under the control of the Court " Court." 
 may by General Order be invested. 
 
 By the General Order of 1st February, 1861, such cash (jen. Ord. 
 may be invested in Bank >Stock, East India Stock, Ex- l^^^' 
 chequer Bills, 2^ per Cents., freehold or copyhold mort- 
 gages, Three per Cent. Reduced, and New Three per Cent. 
 Annuities. 
 
 The power to invest in East India Stock did not, before East India 
 30 & 31 Vict. c. 132, s. 1, extend to other than the stock ^*°'=''- 
 of the old East India Company : Peillon v, Broolcing, 4 
 L. T. N. S. 732 ; Exp. Golne Valley Railway, 1 D. F. & J. 
 53 (where, however, such an investment was held not to be 
 a breach of trust) ; Re Fromovj, 8 W. R. 272 ; Equit. 
 Rev. Soc. V. Fidler, 1 J. & H. 382. 
 
 But that enactment extends to East India Stock, charged New India 
 on the revenue of India, created after 13th August, 1859, . "^ ' 
 though named in the Acts creating it as "India Stock": 
 Exp. Golne Valley RaAlway Co., supra ; see Lewin, p. 272. 
 
 Railway Stock charged on the revenue of India is not Indian 
 within the Acts above referred to : Green v. Angell, W. N. gtock.*'^ 
 1867, p. 305 ; but such investment is now permitted 
 tinder s. 1 of 30 & 81 Vict. c. 132 ; and by s. 2 of the same 
 Act investments on securities guaranteed by Parliament 
 are authorised. 
 
 Under 23 & 24 Vict. c. 145, s. 25, trustees^ with power 22 & 23 
 to vary, having money in hand which it is their duty to u^' ^'iz- 
 invest, may buy and transpose Parliamentary or public or investment 
 
134 
 
 STATUTORY POWERS OP INVESTMENT. 
 
 Land Im- 
 provement 
 /ct, 1864. 
 
 Securities 
 guaranteed 
 by Parlia- 
 ment. 
 
 Mortgages 
 by corpora- 
 tions. 
 
 Debenture 
 Stock. 
 
 Metropo- 
 litan Con- 
 solidated 
 Stock. 
 
 Applica- 
 tion of 
 
 under 
 Settled 
 Estates 
 Act, 1877. 
 
 Interim in- 
 vestment in 
 East India 
 Stock. 
 
 Lynch's 
 ■Act. 
 
 Government securities ; and as to any purchase or transpo- 
 sition, except of or into Consols, must have the consent of 
 the tenant for life i( sui juris. 
 
 Under the Land Improvement Act, 1864 (27 & 28 Vict. 
 c. 114, s. 60), trustees with power to lend on real security 
 may (unless expressly forbidden) advance moneys on charges 
 under that Act. 
 
 Under 30 & 31 Vict. c. 132, s. 2, trustees may invest in 
 securities guaranteed by Parliament. 
 
 Under 33 & 34 Vict. c. 34, corporation and charity, or 
 public, trustees may invest on mortgage without the re- 
 strictions or formalities required by the Mortmain Act. 
 
 Under 34 & 35 Vict. c. 27, trustees having power to 
 invest in mortgages 'or bonds of a railway or other com- 
 pany maj' (unless expressly forbidden) invest in Debenture 
 Stock. 
 
 Under 34 & 35 Vict. c. 13, trustees having power to 
 invest in public securities may (unless expressly forbidden) 
 invest in Consolidated Stock issued by the Metropolitan 
 Board of Works. 
 
 Money in Court has been ordered to be invested in 
 Metropolitan Stock : Re Redhead, W. N. 1878, 194. 
 
 Under the Settled Estates Act, 1877 (40 & 41 Vict. c. 
 18, s. 36, which is substituted for s. 25 of the Act of 1856), 
 sale moneys \intil applied may be invested in securities in 
 which cash under the control of the Court may be in- 
 vested. This enactment gets rid of the doubt expressed 
 in Re Cook, 12 Eq. 12 ; Re Thorold, 14 Eq. 31; Re Taddy, 
 16 Eq. 532 ; Re Boyd, 42 L. J. Ch. 506. 
 
 Under the Lands Clauses Act, 1845 (8 & 9 Vict. c. 18, 
 s. 70), interim investments may be made in East India 
 4 per Cent. Stock ; Re Foy, W. N. 1875, p. 150 ; Re Fryer, 
 20 Eq. 468. 
 
 So also, under a special Act which authorises invest- 
 ments only in Navy Victualling or Exchequer Bills, or 
 Eeduced Annuities : Re Birmmgham Blue Coat School, 
 1 Eq. 632 ; Re Wilkinson, 9 Eq. 343. 
 
 Under Lynch's Act (4 & 5 W, IV. c. 19), where trustees 
 
STATUTORY POWEKS OF INVESTMENT. 135 
 
 have power to advance on real security in England, Wales, Irish mort- 
 
 or Great Britain, it is no breach of trust to invest on real 
 
 security in Ireland ; but in case persons under disability' 
 
 are interested, the sanction of the Court is necessary. 
 
 For the form of an order under this Act, see ^xp. French, ^°^^ °i 
 
 7 Sim. 510 ; Exp. Pawlett, 1 Ph. 570. °"^^'' 
 
 The Court will refer the question of value to chambers : RefercBoa 
 
 _, . , as to value, 
 Ibid. 
 
 Petitions under this Act have not been uniformly Cases 
 
 granted : see Stuart v. 8tiMvt, 3 Bea. 430 ; Re Kirk- ordera 
 
 Patrick, 15 Jur. 941. '^<^^- 
 
 The consent to be given by the settlement will be Form of 
 
 required by the Court to be given in the form thereby ty ^ene- 
 
 prescribed : Norris v. Wright, 14 Bea. 303, ^"^''y- 
 
 The Court will not permit a change of investment into When 
 
 a higher dividend-paying stock in the absence of special allows 
 
 circumstances, making it desirable that the income of the changes of 
 
 . , . , . . . , inTestmenl 
 
 tenant tor lite should be increased, if it appears to be 
 injurious to those in remainder : Gockburn v. Peel, 3 D. F. 
 & J. 170 ; Mortimer v. Picton, 12 W. E. 292 ; and see .Re 
 Boyces, Ir. R. 1 Eq. 45 ; 15 W. R. 827. 
 
 The tenant for life having an ample income is a reason Extent 
 
 against the transfer : Gockburn v. Peel, supra. tenant's 
 
 Where the petitioner was the settlor, with a power of income. 
 
 revocation under certain circumstances, those in remainder Where 
 
 ' petitioner 
 
 being volunteers, the change into Bank Stock or East settlor. 
 India Stock was allo-wed:-Uqtdt. Rev. Soc. v. Fuller, i J. 
 & H. 379, followed in Bishop v. Bishop, 9 W. R. 549 ; and 
 see Cohen v. Waley, 9 W. R. 137. 
 
 Where the fund for supplying maintenance was di- Change 
 
 minished by the dropping of an annuity. East India Stock i°iiia ^'^ 
 
 was allowed to be taken ; but there the infants were nearly Stock. 
 of age : Hurd v. Hurd, 11 W. R. 50, and S. C, sub. nom. 
 Fluid V. Fluid, 7 L. T. N. S. 590. 
 
 And a similar course was allowed where it was clearly Where 
 
 intended that a specified income was to be obtained : Mor- income 
 
 timer v. Picton, 12 W. R. 292, to t? 
 
 ' obtainea. 
 
130 
 
 CHANGE OF INVESTMENTS — PERSONAL SECURITY. 
 
 Where 
 married 
 woman of 
 ndvanced 
 age child- 
 less. 
 
 Bank Stock 
 preferred 
 1.0 India 
 Stock. 
 
 Order to 
 invest divi- 
 dend where 
 threft due 
 in the year. 
 
 Where a mavried woman aged 51 and in ill health was 
 absolutely entitled in default of issue, a transfer into East 
 'India Stock was allowed : Vidlev v. Parrott, 12 W. R. 
 976 ; and see Montefiore v. Guedalla, W. N. 1868, p. 
 87. 
 
 The Court treats India Stock as involving a possible 
 loss of capital by redemption, and prefers Bank Stock: 
 Re Langford, 2 J. & H. 458. 
 
 It is usual to order that if the exchange be not com- 
 pleted before a given date, the next dividend is to be also 
 laid out in the new investment, so as to prevent three 
 dividends occurring in a year: Vidler v. Parrott, 12 
 W. R. 976. 
 
 But this may be dispensed with in a proper case : Re 
 Ingram, 11 W. R. 980. 
 
 Trustees 
 may not, 
 unless 
 otherwise 
 Ijrovided, 
 lend on 
 bills, 
 bonds, 
 notes, &c. 
 
 Solvency of 
 borrower 
 
 Power 
 must be 
 express. 
 
 Power "to 
 place out at 
 interest." 
 
 ■' To lend 
 on best 
 security.'' 
 
 Personal Security. 
 
 It has long been settled that trustees are debarred, 
 unless permitted by the settlement, from lending trust 
 money on bills, notes, bonds, or other personal security : 
 Wilkes V. Steward, G. Coop. 6 ; Vigrass v. Binfield, 3 
 Madd. 62; Pliillipson v. Gatty, 7 Ha. 516; Groom v. 
 Booth, 1 Dr. 548. Harden v. Parsons, 1 Ed. 148, is 
 not law. 
 
 The solvency or credit of the borrower is no excuse to 
 the trustees : Terry v. Terry, Prec. Ch. 273 ; Forbes v. 
 Ross, 2 B. C. C. 430 ; Walker v. Symonds, 3 Sw. 63 n. (6); 
 Adye v. Feuilleteau, 3 Sw. 84 n. ; 1 Cox, 24. 
 
 Even where the words of the investing power may seem 
 to give a discretion to lend on personal security, trustees 
 are, not permitted to exercise it : Wilkes v. Steward, 
 supra. 
 
 Thus they were not justified so to lend by a power to 
 " place out at interest at their discretion : " Pocock v. 
 Reddington, 5 Ves, 794. 
 
 And a trust to lay out on the best security that could 
 be got is not fulfilled by taking a promissory note, which 
 is evidence of a debt, but not security for money. The 
 
INVESTMENT ON PERSONAL SECURITY. 137 
 
 security should be on land, or something that would be 
 answerable for the money : Ryder v. Bicherton, 3 Swans. 
 80 n. 
 
 A distinction has been taken between getting in and Distinction 
 investing on such security : Poiuell v. Evans, 5 Ves. 8-39. retaining 
 
 843. ai'l lend- 
 
 The promissory notes of a banker bearing interest are notes, &c. 
 not a proper investment : Darke v. Martyn, ] Bea. 52-5 ; Deposit 
 see ante, p. 99. ^" ^^' 
 
 And a loan of trust moneys by trustees to a bank in Doan to 
 which one of them was a partner, on the security of certain ^" ^^' 
 bonds, was evidently a breach of trust : Exj). Geaves, 8 D. 
 M. & G. 291. 
 
 The concurrence of sureties to a bond is not held to Sureties 
 take the case out of the rule : Holmes v. Bring, 2 Cox, 1 ; not alter 
 Watts V. Girdlestone, 6 Bea. 188. rule. 
 
 An authority to place out at interest does not include a Risking 
 power to risk the money in trade : Langston v. OUivant, 1^°?^^ "^ 
 G. Coop. 33 ; Cock v. Goodfelloiu, 10 Mod. 496 ; and see 
 Mills V. Osborne, 7 Sim. 30. 
 
 The trust in this case could not be set up against the 
 general creditors of the trade : Re Beale, 4 Ch. D. 246 ; 
 and see Re Childs, 9 Ch. 508 ; Re Bntterfield, De G. 
 570 ; Exp. Garland, 10 Ves. 110. 
 
 A power to call in and invest at greater interest if the Purchasing 
 trustees are able to do so, does not warrant the purchase ^™"' ^' 
 of an annuity : Fitzgerald v. Fringle, 2 Moll. 534. 
 
 A power to invest on " heritable or personal," or on "Heri- 
 " real or personal " security, if exercised strictly according personal" 
 to the terms of the power, will authorise an advance on a ''■-'^^"ty- 
 bond bearing interest at five per cent : Forbes v. Ross, 2 
 B. C. C. 430 ; Richard v. Anderson, 13 Eq. 608 ; see 
 Cocker v. Quayle, 1 R & M. 535. 
 
 If the loan is to be with the consent of a beneficiary. Prospective 
 
 such consent must not be given prospectively as to future benefi"-* °^ 
 
 moneys to be lent to her husband : Child v. Child, 20 "'^''y ™- 
 _ ;,„ sufficient. 
 
 Bea. 50. 
 
 If with the consent of the trustees, both must consent : "^°'"^* 
 
 consent, 
 
1.3S 
 
 INVESTMENT ON PERSONAL SECUfllTY. 
 
 Ex post 
 facto con- 
 sent. 
 
 Consent in 
 writing. 
 
 Loan to 
 husli.inrl. 
 
 Prescribed 
 duration of 
 loan. 
 
 Loan to 
 co-trustee. 
 
 Loan to 
 life-tenant. 
 
 Power to 
 lend to two 
 is several. 
 Kenev/al of 
 personal 
 bond, 
 
 Greenham v. Oihheson, 10 Bing. 363 ; and see Offen v. 
 Harman, 1 D. F. & J. 253. 
 
 An ex post facto consent is insufficient : Bateman v. 
 Davis, 3 Madd. 98 ; but as to acquiescence, see Stevens v. 
 Robertson, W. N. 1868, p. 123. 
 
 If the consent is to be in writing to a loan on bond, a 
 loan with an unwritten consent and without a bond is 
 unauthorised and improper : Cocker v. Quayle, 1 R. & M. 
 535. 
 
 A large power of advancement for the benefit of a wife 
 may authorise a loan to the husband : Re Kershciw, 6 Eq. 
 322 ; and see Talbot v. Marshfteld, 3 Ch. 622. 
 
 Where there was power to lend to the husband a 
 specific sum on a bond and a policy, and new trustees 
 were to have the same powers as the original ones, the 
 whole sum having been lent and repaid, the new trustees 
 were held to be empowered to lend it again, the power 
 being held unexhaustible and transmissible : Versturme 
 V. Gardiner, 17 Bea. 3£8. On the subject of the transmis- 
 sibility of powers, see Cole v. Wade, 16 Ves. 27; Hall 
 V. Bewes, Jac. 189 ; Newman v. Warner, 1 Sim. N. S. 457. 
 
 An authorised loan to a husband on his covenant to pay 
 in six months need not be called in in six months : Child 
 V. Child, 20 Bea. 50. 
 
 If the power include a loan to a co-trustee, the other 
 trustee is not liable for its loss, if he have not contributed 
 to it by any conduct or neglect on his part : Paddon v. 
 Richardson, 7 D. M. & G. 563. 
 
 But a general power to lend on personal security does 
 
 not authorise a loan to a co-trustee : v. Walker, 5 
 
 Euss. 7 ; Stickney v. Sewell, 1 My. & Or. 8. 
 
 Or, if with the consent of the tenant for life, a loan to 
 the tenant for life : Keays v. Lane, Ir, R. 3 Eq. 1 ; and 
 see Lander v. Weston, 3 Dr. 389. 
 
 A power to lend to A. and B. extends to a loan to either : 
 Parker v. Rloxam, 20 Bea. 295. 
 
 Executors in trust finding a sum outstanding on the 
 bond of a trustee for a minor, may, it seems, renew it witli 
 
TRUSTS FOR, AND POWERS OF, INVESTMENT. J 39 
 
 the minor himself on his majority : Charlton v. Durham, 
 i Ch. 433. 
 
 Trustees with a power of sale, and to invest in Govern- Eaiiiuble 
 ment securities, cannot sell and receive part only of the ''^'P'"^'''- 
 price, leaving the rest on the security of an equitable 
 deposit of the deeds by the purchaser : Webb v. Ledsam, 
 1 K. & J. 385. 
 
 An authority to lend on Goverment, real, or personal Insufficient 
 security, affords no excuse for an investment ou insufficient ^<'''™''*y- 
 real security : Btickney v. Seiuell, 1 M. & Cr. 8. 
 
 Stocks and Shares. 
 "Public Stocks" are the public stocks of this countrv What are 
 
 only : Wells v. Porter, 2 Bing. N. C. 730. Stocks. 
 
 Railway stock is included in the words "Government or Railway 
 
 other stock : " Re Matheson, 1 D. M. & G. 448 ; Exjx ^*°*' 
 
 Copeland, 2 D. M. & G. 914. 
 
 Preference railway stock is not included in " funds of Preference 
 
 companies incorporated by Act of Parliament," as they are 
 
 charged only on the profits of the concern : Harris v. 
 
 Harris, 29 Bea. 107 ; and see Stewart v. Sanderson, 10 
 
 Eq. 26. 
 
 Unless it is such as bears a fixed rate of interest : ^^^™^^ 
 
 C'onsterdine v. Consterdine, 31 Bea. 330. interest; 
 
 And is not transferable only into a single name : Ibid. transfer- 
 French railway shares (redeemable) are not within a single 
 
 power to invest in " bonds, debentures, or the stocks of, °^'°®' 
 
 any colony or foreign country:" Re Langdale, 10 Eq. 39. wly^hares. 
 But "stock in the foreign funds" means any foreign "Stock in 
 
 security for which the faith of the foreign government is func^!'^'"" 
 
 pledged : Ellis v. Eden, 23 Bea. 543 ; Gadett v. Earle, 5 
 
 Ch. D. 710. 
 
 Investments on American securities will not be allowed -^?* ^f; 
 
 by the Court : Beihell v. Abraham, 17 Eq. 24. the Court. 
 
 Without an express authority, trustees may not accept New 
 
 new shares in respect of shares forming part of the trust ^ ^^^^' 
 
 estate: Sculthorpe v. Tipper, 13 Eq. 241 ; and see Bevan 
 
 V. Waterhouse, 3 Ch. D. 752, 
 
140 
 
 SHAR ES — MORTGAGES. 
 
 Liability 
 for calls. 
 
 Calls paiil 
 by life- 
 tenant. 
 
 Apportion- 
 ment of 
 dividends. 
 
 Companies 
 do not 
 notice 
 trusts. 
 
 Trustee is 
 share- 
 holder. 
 
 Legal title 
 to trustee. 
 
 Indemnity 
 of trustee. 
 
 A trustee of shares for a company is not liable for calls 
 if the article.s indemnify him against them : Re West 
 Hartlepool Iron Co., 1 Ch. D. 664. 
 
 If calls become payable, and the trustees request the 
 tenant for life to pay them, the latter has a lien on the 
 shares for such payment : Todd v. Moorhouse, 19 Eq. 69. 
 
 The Court will not apportion dividends of stock pur- 
 chased with trust money : Eashleigh v. Master, 3 B. C. C. 
 99 ; O'Brien v. Fitzgerald, 1 Ir. Ch. R. 293. 
 
 By the 30th sect, of the Companies Act, 1862, ''no notice 
 of any trust, expressed, implied, or constructive, shall be 
 entered on the register or be receivable by the registrar in 
 the case of companies " under that Act, and registered in 
 England or Ireland. 
 
 If the name of the trustee be on the register, he is liable 
 to the company for calls ; and the insufficiency of the trust 
 estate is no defence : Exp. Bugg, 2 Dr. & Sm. 452 ; Re 
 Drummond, 2 Giff. 189 ; Bunn's Case, 2 D. F. & J. 300 ; 
 Hoares Case, 2 J. & H. 229 ; Gragg v. Taylor, L. R. 1 Ex. 
 148; L. R. 2 Ex. 131. 
 
 But in order to make him liable, the legal title must 
 be complete in the trustee by a transfer into his name : 
 Hall's Case, 1 McN. & G. 307. 
 
 The trustee has a right to be indemnified by his cestui 
 que trust: James v. May, L. R. 6 H. L. 328 ; and see 
 Heritage v. Paine, 2 Ch. D. 694. On this point and 
 generally upon the subject of the liability for calls on 
 shares held in trust, further reference should be made 
 to Lindley on Partnership, p. 1358, et seq., 4th ed. ; Buck- 
 ley on the Companies Acts, the notes to s. 30. A similar 
 provision is made by s. 20 of the Companies Clauses Con- 
 solidation Act, 1845 (8 & 9 Vict. c. 16). 
 
 Trustees 
 to leave 
 one-third 
 margin on 
 freeholds ; 
 
 Investvient on Mortgage. 
 
 Trustees cannot prudently lend more than two-thirds of 
 the value of freehold laoid or other property of permanent 
 value : Stickney v. Sewell, 1 M. & Cr. 13 ; I^orris v. Wright, 
 14 Bea. 307; Maclcody.Annesley, 16Bea, 605; Phillipson 
 
INVESTMENT ON MORTGAGE. 141 
 
 V. Gatty, 7 Ha. .516, 528 ; Stretton v. Ashmall, 3 Dr. 12 ; 
 
 and as to mortgages of copyhold land, see Wycdt v. Shar- ""^ ™P" 
 
 rati, .3 Bea. 498 ; Farrav v. Barradough, 2 Sm. & G. 231. 
 
 Or, of speculative property like an hotel or place of or specula- 
 amusement, see Fowler v. Reijnal, 3 McN. & G. 50.9 ; *^™yP"- 
 Budge v. Gummow, 7 Ch. 719. 
 
 But they should advance no more than half of the value One-half 
 
 ■ of freehold houses : Norris v. Wright, supra ; Phillipson ^^^^^f^"^^^ 
 V. Gatty, supra ; Macleod v. Annesley, supra. 
 
 Or, of property, like trade property, which is likely to or trade 
 
 fluctuate : Stichiey v. Sewell, 1 M. & Cr. 8 ; Stretton v. P^P^'^y > 
 Ashmall, sup>ra. 
 
 Or, of renewable leaseholds for lives at a head rent, as or renew- 
 in Irish holdings : Macleod v. Annesley, 16 Bea. 605. ^mlTn"' 
 
 These rules are not of universal application ; for if the Ireland, 
 
 security proves deficient, the burden will lie on the trustees ^"^^^ ^^ *" 
 
 111 ^ /v ■ n • 7 margin not 
 
 to show that the property was ot suincient value : Stickney to relieve 
 
 V. Sewell, 1 M. & Cr. 15 ; Stretton v. Ashmall, 3 Dr. 9 ; ^^""f^f 
 ' ' _ _ _ ' ' as to de- 
 even where the Court has directed an inquiry : Norris ficienoy. 
 
 V. Wright, 14 Bea. 303. 
 
 The trustees should employ a person acquainted with Valuer to 
 
 the locality to value the property : Budge v. Gummow, 7 !|io^^' 
 
 Ch. 719. ^' ' 
 
 And they must not rely on the valuation of the mort- Valuer to 
 
 gagor or his agent : Norris v. Wright, supra. ^endent 
 
 Nor upon information supplied by a cestui que trust : Not to rely 
 
 Macleod v. Annesley, 16 Bea. 607. tiW™''" 
 
 Where the property is of a speculative character they cestui qus 
 
 should be doubly careful to obtain all available informa- '"^ ' . 
 
 tion: Budge v. Gummow, supra; and see Stickney v. ofspecu- 
 
 Sewell, supra ; Stretton v. Ashmall, supra.. lative 
 
 In the case of trade property, the accidental absence of valuation 
 
 competition in the same trade is not an element of value : °^ *™'^« 
 
 Stickney v. Sewell, supra. ^^^°^^ ^' 
 
 When trustees have acted bond fide, and taken a proper -Unfin- 
 
 valuation, they will not be accountable, though the value Jfouggg 
 of the property have some incidents of a speculative 
 character, as where it consisted of unfinished houses being 
 
142 
 
 INVESTMENT ON MORTGAGE. 
 
 Freehold 
 ground- 
 rents. 
 
 Letting 
 value. 
 
 On re- 
 advancing, 
 fresh valua- 
 tion, &c. , 
 to be made. 
 
 negligence 
 of solicitor. 
 
 Loss after 
 trustee's 
 death by 
 improper 
 advance. 
 
 Second 
 mortgage. 
 
 Mortgage 
 deed to be 
 contempO" 
 raneous 
 with ad- 
 vance. 
 
 Trustees to 
 have 
 
 solicitor. 
 
 Fraud of 
 solicitor. 
 
 built for speculation : Jones v. Lewis, 3 De G. & Sm. 471 ; 
 Mr. Lewin states, p. 287, n. (6), that this case was reversed 
 on appeal, but the grounds for the reversal are unknown. 
 
 Freehold ground rents are not an objectionable security; 
 and the value of the houses may be added, as the lessor can 
 re-enter on non-payment : VicJcery v. Evans, 33 Bea. 376. 
 
 If the rack-rental of the property is barely enough to 
 answer the interest, that is good ground for charging'^ 
 trustees with loss : Macleod v. Annesley, 16 Bea. 600, 606. 
 
 In re-advancing the trust fund to the same borrower, 
 trustees must obtain a new valuation, and should demand 
 an abstract, and whether any fresh incumbrances have 
 been made : Hopgood v. Parian, 11 Eq. 74. 
 
 And if it turns out, through the negligence of their 
 solicitor, that any such incumbrances take priority over 
 their security, they are liable : Ihid. 
 
 A breach of trust by a trustee, through lending on in- 
 sufficient security, is not cured by repayment after his 
 death ; and a subsequent loss by a re-advance will be 
 chargeable to his estate : Lander v. Weston, 3 Dr. 389. 
 
 As to whether it is not, under any circumstances, a breach 
 of trust to take a second mortgage, see Waring v. Wari^ig, 
 3 I. Ch. R. 337 ; Fowler v. Reynal, 3 McN. & G. 500 ; 
 Norris v. Wright, 14 Bea. 307 ; Droaier v. Brereton, 15 
 Bea. 222 ; Loclchart v. Reilly, 1 D. & J. 464, 476. 
 
 Trustees must not advance the money without a proper 
 instrument of charge; a subsequent executifln of a mort- 
 gage, where the rights of mortgagors may be altered, will 
 leave them still liable: Fowler y. Reynal, 3 McN. & G. 500. 
 
 It is evidently improper for trustees to be represented 
 by the same solicitors as the borrower : Waring v. Wanng, 
 3 Ir. Ch. R. 337 ; Fyler v. Fyler, 3 Bea. 550. 
 
 Trustees are liable for the fraud of their solicitor: Sutton 
 V. Wilders, 12 Eq. 373 ; and as to his forgery, see Bostock 
 V. Floyer, 1 Eq. 26. So, where he represented the security ■ 
 as good, when, in fact, the mortgagor, who was also his 
 client, had a life interest only, the loss was made to fall on 
 the trustees : Svtton v. Wilders, 12 Eq. 373. 
 
INVESTMENT ON MORTGAGE. 143 
 
 Trustees, with power to advance on real security, may- 
 invest on freehold ground rents : Vickery v. Evans, 33 
 Bea. 376 ; see Re Peyton, 7 Eq. 463. 
 
 But, primd facie, not on leaseholds : Townend v. Lcase- 
 Tovjnend, 1 Giff. 201, 211; unless held at a peppercorn ° ^' 
 rent for a long term and without impeachment of waste : 
 Jones V. Ghennell, 8 Ch. D. 507. 
 
 And a power to lend on leasehold securities authorises Power to 
 only a charge on a long term : Fince v. Beattie, 9 Jur. N. leaseholds 
 S. 1119. 
 
 And an advance on leaseholds is not warranted by a 
 power to sell and invest on "land :" Fuller y.. Knight, 6 
 Bea. 205. 
 
 A mortgage of a life interest with collateral security is Mortgage 
 not within the power to advance on real security : Lander est^'te. 
 v. Weston, 3 Dr. 389 ; and see Fitzgerald v. Fitzgerald, 
 6 Ir. Oh. E. 145. 
 
 Nor is a charge on a judgment affecting land in Ireland : Of a judg- 
 Johnston v. Lloyd, 7 Ir. Eq. R. 252. ™™*- 
 
 As to whether a Scotch mortgage is within a power to Scotch 
 lend on real security in England or Wales, see Re Miles, ^°^s,^s.^- 
 27 Bea. 579. 
 
 Turnpike bonds are within the power, see Robinson v. Turnpike 
 Rohinson, 1 D. M. & G. 247 ; but see Holgate v. Jennings, "^ ^' 
 24 Bea. 630. 
 
 Railway mortgages redeemable in seven years were held Eaiiway 
 not to come within the power : Mant v. Leith, 15 Bea. ™°' ^^°^^' 
 524 ; and see Moriimore v. Mortimore, 4 D. & J. 472 ; Re 
 Simson, IJ. & H. 89. 
 
 A stock mortgage is not authorised by the usual trust Stock 
 to invest in Government or Parliamentary stocks : Whitney ^°^ ^^^^' 
 V. Smith, 4 Ch. 513 ; and see Bromley v. Kelly, 39 L. J. 
 Ch. 274. 
 
 As to the effect of investing by mistake in unauthorised Mistake, 
 securities, see Hynes v. Redington, 1 J. & L. 58{). 
 
 It is not a breach of trust to take a mortgage without Mortgage 
 a power of sale : Farrar v. Barraclough, 2 Sm. & G. 237. powe'Tof 
 
 Where under a will trustees are to invest sufficient to ^^^' 
 produce a specific income for a tenant for life, and the ^ncome^'^ 
 
144 
 
 MORTGAGES — INVESTMENT IN LAND. 
 
 secured by 
 advance at 
 high rate, 
 to increase 
 residue. 
 
 Advance to 
 co-trustee. 
 
 Practice of 
 Court. 
 
 Marketable 
 title. 
 
 Reference 
 as to title. 
 
 Vendor 
 and Pur- 
 chaser Act, 
 1874. 
 Forty- 
 years' title, 
 
 Trustee 
 may buy 
 under Act. 
 
 Lessor's 
 title not to 
 
 capital is settled on a remainderman, the fact that the 
 trustees themselves are interested in the residue does 
 not prevent them, if they act bond fide, and lend on per- 
 fect security, from taking a security at a high rate of in- 
 terest so as to invest a smaller sum, and thus to increase 
 their own residue : Vickery v. Evans, 33 Bea. 383. 
 
 As to a trustee lending trust-money on security belong- 
 ing to his co-trustee, see Butler v. Butler, 7 Ch. D. 116, 
 and fost p. 332. 
 
 Trust stock transferred to the National Debt Com- 
 missioners on the ground of non-claim of dividends is 
 ordered to be retransferred to the trustee and not to the 
 cestui que trust : Exp. Jameson, 19 Eq. 430. 
 
 Investtnent in Land. 
 
 By analogy to the practice of the Court (as stated in 
 Meyrick v. Laxus, 34 Bea. 59 ; and see Daniell, Ch. Pr. 117, 
 et seq), it would seem that trustees may be satisfied with 
 a good holding, though not strictly a marketable, title : 
 and see Re Sheffield &c.. Railway Co., 1 Sm. & G. App. iv. 
 
 The Court, however, Avliere it takes upon itself to direct 
 the trust for investment (as it does after action brought, 
 Bethell v. Abrahaon, 17 Eq. 27 ; and see Minors v. Bat- 
 tison, 1 App. Ca. 428), directs a reference as to title 
 generally, and does not add "having regard to the con- 
 ditions of sale." The Judge at Chambers considers 
 whether any defect appearing on the title can be waived : 
 Meyrick v. Laivs, supra; Exp. Christ's Hospital, 2 H. 
 & M. 166. 
 
 Under the Vendor and Purchaser Act, 1874 (37 & 38 
 Vict. c. 78) s. 1, a forty years' title is substituted for a 
 sixty years' title ; but earlier title than forty years may 
 be required in cases similar to those in which earlier title 
 than sixty years might before the Act be required. 
 
 Under s. 3 of the same Act trustees may buy without 
 excluding the operation of the provisions of s. 2, which 
 are : — 
 
 (1.) That under a contract to grant or assign a term of 
 years, whether derived or to be derived out of a freehold 
 
INVESTMENT IN LAND. IVt 
 
 or leasehold estate, the intended lessee or assign shall te asked 
 not be entitled to call for the title to the freehold. 
 
 (2.) Eecitals, statements, and descriptions of facts, EecHais, 
 matters and parties, contained iu deeds, instruments. Acts ^g^^^^o^i^j 
 of Parliament, or statutory declarations, 20 years old at binding. 
 the date of the contract, shall, unless and except so far as 
 they shall prove to be inaccurate, be taken to be sufficient 
 evidence of the truth of such facts, matters and descriptions. 
 
 (3.) The inability of the vendor to furnish the pur- Equitable 
 chaser with a legal covenant to produce and furnish "^ ¥ *". 
 copies of documents of title shall not be an objection to sufficient, 
 title, in case the purchaser will, on completion of the 
 contract, have an equitable right to the production of such 
 documents. 
 
 (4.) Such covenants for production as the purchaser Costs of 
 can and shall require shall be furnished at his expense, <=°™'^*°'' '" 
 and the vendor shall bear the expense of perusal and 
 execution on behalf of and by himself, and on behalf of and 
 by necessary parties other than the purchaser. 
 
 (.5.) Where the vendor retains any part of an estate Right to 
 to which any documents of title relate he shall be entitled ^g^^" 
 to retain such documents. 
 
 By s. 9 a vendor or purchaser may obtain the decision Decision of 
 of a Judge in Chambers as to requisitions, objections, Jj"j^^ ""^ 
 compensation or other questions arising out of the con- 
 tract (not being a question affecting the existence or 
 validity of the contract). 
 
 As to the limitations and provisions to be inserted in 
 settlements of land purchased under executory trusts, see 
 ante, p. 49. 
 
 A trustee to invest in land is presumed to have pur- Power pre- 
 chased in performance of his obligation : Lechmere v. ™™^<' *° 
 
 J^^ ° be exer- 
 
 Lechmere, Sugd.Y. & P. App. 1117, 11th ed.; 3 P. W.211; cised. 
 Mathias v. Mathias, 3 Sm. & G. 555 ; and see post, p. 305. 
 
 And on proof of a purchase with trust-money, even by Following 
 parol evidence, cestuis que trustent may follow the money into'i'md^ 
 into the land : Price v. Blakemore, 6 Bea. 507 ; Sugd. purchased. 
 V. & P. 919. See further on the subject of following 
 the trust fund, post, p. 304. 
 
146 
 
 INVESTMENT IN LAND. 
 
 When 
 power to tie 
 exercised. 
 
 Implied 
 power 
 to sell 
 purchased 
 land. 
 
 Conversion. 
 
 Discretion- 
 ary power 
 to pur- 
 chase, when 
 imperative. 
 
 Eights 
 altered by 
 exercise of 
 discretion. 
 
 Reinvest- 
 ment of 
 sale 
 
 moneys of 
 gavelkind 
 lands. 
 
 House 
 property. 
 
 Ground 
 rents. 
 
 Copyholds 
 for lives. 
 
 A power to sell and reiuvest in land to be settled upon 
 the subsisting trusts should be exercised only with a view 
 to reinvestment : Price v. Blakemore, 6 Bea. 507 , and 
 see Mortlock v. Buller, 10 Ves. 308. 
 
 As to whether such a power gives an implied power of 
 sale over the purchased property: Master v. De Croismar, 
 11 Bea. 184 : Mton v. Mton, 27 Bea. 634; Tait v. Lath- 
 hury, 1 Eq. 174. 
 
 As to the remedy where trustees change the nature and 
 quality of the property of their cestuis que trust by in- 
 vesting in land without an express power, see post, 
 p. 304 et seq. 
 
 Where trustees have a discretion to invest in land, they 
 will not be ordered by the Court to exercise it if they do 
 not withhold their concurrence from corrupt or unreason- 
 able motives : Lee v. Young, 2 Y. & C. C. C. 532 ; secus, 
 where they are. required to do so when called on by the 
 cestuis que trust; though even in this case they are entitled 
 to an inquiry as to the desirableness of the purchase pro- 
 posed : Beauclerk v. Ashhurnham, 8 Bea. 322 ; Cadogan 
 v. Essex, 2 Drew. 227. 
 
 The trustees need not regard an alteration of rights by 
 the purchase if their power is purely discretionary: Minet 
 V. Leman, 7 D. M. & G. 351. 
 
 And when gavelkind lands are sold, the rights of the 
 customary heir are gone on a reinvestment in other land : 
 ffougham v. Sandys, 2 Sim. 95. 
 
 House property is included in a power to buy "lands, 
 messuages or tenements " : Cadogan v. Essex, supra ; 
 but is an investment not approved of by the Court : 
 Moore v. Walter, 8 L. T. N. S. 448 ; 11 W. R. 713. 
 
 A fund in Court will not, therefore, be ordered to be 
 invested in house property : Moore v. Walter, 11 W. E. 
 713. 
 
 Freehold ground rents form an eligible purchase : Be 
 Peyton, 7 Eq. 463 ; see ante, p. 142. 
 
 Whether copyholds for lives may be bought under a 
 power to buy copyholds of inheritance, see Trench v. 
 Harrison, 17 Sim. 111. 
 
INVESTMENT IN LAND. 147 
 
 Leaseholds for lives m Ireland perpetually renewable Irish 
 are a good security for money : Macleod v. Annesley, 16 for lives. 
 Bea. 600. 
 
 Trustees ought not to buy mines alone, as the tenant Mines. 
 for life may exhaust them : Lewin, p. 438. 
 
 Nor a wood estate, for the same reason : Ibid. Wood 
 
 Nor an equity of redemption, because it might be diffi- ^^*^^^- 
 cult to redeem, and there might be a sale without their redemp- 
 consent ; and because the legal estate should always be ^i°°- 
 obtained by trustees : Ibid. ; and see Exp. Craven, 1 7 L. 
 J. Ch. 215. 
 
 Nor, without an express power, an advowson, because if Advowson. 
 no sale is effected in the lifetime of the tenant for life, 
 he would get no benefit, and some remainderman might 
 get all : Lewin, p. 438. 
 
 Where trustees are directed to purchase " with all con- Direction 
 venient speed," the income of the fund to be meanwhile *?^;t^°,.^ii^ 
 accumulated, they must be diligent to find an investment, convenient 
 in which case the tenant for life takes the accumulations ^^'^^ ' 
 from the date of the conveyance ; if they are not, he takes 
 them from the end of a year from the receipt of the money 
 by the trustees : Parry v. Warrington, 6 Madd. 155 ; 
 and see Entwistle v. MarJcland, 6 Ves. 528 ; Sitwell v. 
 Bernard, ibid. 520 ; Elwin v. Elwin, 8 Ves. 546, 557 ; 
 Walker v. Shore, 19 Ves. 387. 
 
 If stock directed to be laid out in land is sold between Apportion - 
 the half-yearly dividend days, an equivalent is given to ^ockloi"^ 
 the tenant for life by way of apportionment : Londes- to buy land. 
 borough v. Somerville, 23 L. J. Ch. 646. 
 
 As to the effect of directing the investment in a parti- Purchase 
 cular estate, subject to the ability of the trustees to buy estate" ^ 
 it, see Upjohn v. Upjohn, 7 Bea. 59. 
 
 The costs of a purchase by trustees must be borne by Costs of 
 the particular sum directed to be invested : Gwyther v. ^'"° ^^^' 
 Allen, 1 Ha. 505. 
 
 Until sale or exchange moneys can be reinvested, Interim 
 trustees must invest it in some authorised security (as to ofTale"™* 
 which, see p. 132 et seq.) : 23 & 24 Vict. c. 145, s. 7. moneys. 
 
 L 2 
 
CHAPTER XX. 
 
 OF TRUSTS AND POWERS RELATING TO RENEWABLE 
 LEASEHOLDS. 
 
 23&24 
 Vict. V. 
 lis, ss. 8 
 and 9. 
 Statutory 
 power for 
 trustees to 
 renew. 
 
 Where 
 estate for 
 life is legal 
 and no 
 custom to 
 renew. 
 
 Where life- 
 tenant is a 
 ce-itui que 
 vie. 
 
 Advance of 
 fine re- 
 couped. 
 
 Intention 
 to obligo 
 him to 
 renew. 
 
 Trustees under instruments dated after 28th of August, 
 1860, of renewable leaseholds may in their discretion, and 
 if called upon by any beneficiary, must, do their best to 
 obtain a renewal ; but not in case the tenant for life is 
 under no obligation to renew or to contribute to the ex- 
 penses of renewal ; and, except in such case, trustees may 
 use money in hand, or raise money by mortgage, for the 
 expenses of renewals ; 23 & 24 Vict. c. 145, ss. 8, 9. 
 
 As the Act expressly excepts the case of a tenant for 
 life being under no obligation to renew, it is necessary to 
 show in -what cases that obligation does or does not exist. 
 
 Where renewable leaseholds are given through legal 
 limitations to persons in succession, and there is no custom 
 or direction to renew, it is in the discretion of the tenant 
 for life to renew or not : Nightingale v. Lawson, 1 B. C. 
 C. 440 ; Stone v. Theed, 2 B. C. C. 248 ; and see White v. 
 White, 4 Ves. 24 ; 9 Ves. 561. 
 
 In the case of a lease for lives, it seems that if a legal 
 tenant for life is one of the lives he cannot be called upon 
 to renew : Verney v. Verney, 1 Ves. Sen. 429 ; White v. 
 White, 4 Ves. 32 ; Lawrence v. Maggs, 1 Eden, 455. 
 
 And any money he may have paid will be a charge upon 
 the estate : Adderley v. Glavering, 2 B. C C. 659 ; 2 Cox, 
 192. 
 
 But if there are indications in a will that the estate is to 
 be kept up, as, for payment of an annuity out of the rents, 
 the obligation to renew arises : Lock v. Lock, 2 Vern. 666. 
 
direction 
 to renew. 
 
 TRUSTS FOR RENEWAL OF LEASES. 149 
 
 And eveu where the tenancy for life is by construction Tenant for 
 legal (see ante, Ch. I.), it is subject to an implied duty to rected to 
 renew if the tenant for life is directed to pay the fines : P'^y ^°^^- 
 Hullces V. Barrow, Taml. 264 ; and see Montfoi-d v. Cado- 
 gan, 19 Ves. 633. 
 
 It is still doubtful whether, where the tenant for life is Doubt as 
 one of the lives, the fact that the legal estate is given to ^jje^g ical 
 trustees affects the tenant for life's position with regard to ^^^^^ ™ 
 his obligation to renew, in the absence of any express or and i 
 implied trust for renewal : (see White v. White, 4 Ves. 32 ; 
 Verney v. Verney, 1 Ves. Sen. 429,) though in one case 
 the point was determined in the negative : O'Ferrall v. 
 O'Ferrall, LI. & G. (Plunk.) 79. 
 
 In the absence, therefore, of such express or implied Effect of 
 trust, it seems that the statute would not authorise trustees *• 
 to renew, if there was no custom or direction imposing 
 that duty on the life tenant if his estate wete legal. 
 
 That a trust to renew may be implied, was decided in Implied 
 Montford v. Cadogan, 19 Ves. 638, where the trust to renev." 
 pay the fines was held to imply a trust for renewal : and 
 see Trench v. St. George, 1 Dru. & Walsh, 417. 
 
 And a trust for renewal is imported into a settlement Under 
 executed pursuant to marriage articles : Pickering v. l^^^_ "^ 
 Vowles, 1 B. C. C. 197 ; Graham, v. Londonderry, cited 2 
 B. C. G. 246 ; see ante, p. 50. 
 
 In cases falling under the statute, the absence of a trust Direction 
 to renew is supplied ; and in cases of ti'usts to renew, created },o^ (,£„.' 
 before the Act, though discretionary in form, they have strued. 
 been treated as imperative, supposing the trustees are able 
 to renew on terms not disadvantageous to the estate : 
 Mortimer v. Watts, 14 Bea. 624 ; and see Milsington v. 
 Mulgrave, 3 Madd. 491. 
 
 Tenants for life subject to a direction to renew are Tenant for 
 trustees for that purpose, and may not surrender without 1'^^ ^"'^"'^ 
 the concurrence of the ^'emainderman : White v. White, 4 is trustee. 
 Ves. 24 ; 9 Ves. 555. 
 
 After the lease has expired it would seem that in an Mode of 
 
150 
 
 TRUSTS FOR RENEWAL OF LEASES. 
 
 recouping 
 reraaiader- 
 
 Liability 
 for non- 
 renewal. 
 
 action by a remainderman the Court will apply the rents 
 through a receiver or otherwise to provide compen- 
 sation for the omission by tenant for life to renew : 
 Bennett v. CoUey, 2 M. & K. 225. 
 
 And tenants for life, like trustees, if bound to renew, are 
 personally liable to repair the breach of trust if they do 
 not renew : Montford v. Gadogan, 19 Ves. 635 ; Colegrave 
 V. Manby, 2 Euss. 238. 
 
 Expense 
 torne in 
 proportion 
 to enjoy- 
 ment. 
 
 Speculative 
 calculations 
 rejected. 
 
 Lien for 
 payment 
 beyond 
 enjoyment. 
 
 How pay- 
 ment by 
 tenant 
 for life 
 secured. 
 
 No distinc- 
 tion as to 
 term of 
 years. 
 
 Apportionment of Renewal Fines and Expenses. 
 
 Where there is no express direction of the settlor, the 
 expenses of renewal are to be borne by tenants for life 
 in proportion to the actual enjoyment they have of the 
 renewed lease : Nightingale v. Laivson, 1 B. C. C. 440 ; 
 Stone V. Theed, 2 B. C. C. 243, and 5 Ha. 451 n. ; White v. 
 White, 9 Ves. 554 ; Jones v. Jones, 5 Ha. 440 ; Giddings 
 V. Giddings, 3 Euss. 241, 259 ; Bradford v. Brownjohn, 
 3 Ch. 711 ; Isaac v. Wall, 6 Ch. D. 706. 
 
 The extent of enjoyment is not to be determined by 
 mere speculation, or by a calculation of probabilities : 
 Jones V. Jones, 5 Ha. 465. 
 
 If the tenant for life renews, he will enjoy during his 
 own life, and will have a lien upon the residue of the 
 term for any overpayment he may have so made : Ibid. 
 
 If the remainderman renews, it seems that the only way 
 of ensuring that the tenant for life shall pay the full 
 amount due from him beyond the interest of the charge 
 created for the purpose of the renewal, is to take security 
 from the tenant for life : White v. White, sujjra ; Green- 
 tuood V. Evans, 4 Bea. 44; Reeves v. Creswick, 3 Y. & C. 
 715; Jones v. Jones, 5 Ha. 466. 
 
 There is no distinction between the mode of apportion- 
 ment to be followed in the two cases of the renewal of 
 leases for lives and leases for years, the diflSculty of 
 arriving at the value being only greater in the former 
 case : Jones v. Jones, sttpra ; Bradford v. Brownjohn, 3 
 Ch. 714 ; Isaac v. Wall, C Ch. D. 706. 
 
EENEWAL OF LEASES— APPORTIONMENT OF FINES. 151 
 
 For the mode of apportionment, see Bradford v. Brown- Mode of 
 John and Isaac v. Wall, supra. me^nt. '°" 
 
 As to the application of the principles of life insurance Insurance, 
 to these cases, see Shaftesbury v. Marlborough, 2 M. & K. 
 118 ; Bennett v. Colley, ibid. 234 ; Greenwood v. Evans, 
 4 Bea. 44. 
 
 Where a provision has heen made by the settlor for the Kenewal 
 expense of renewal by sale or mortgage of the estate mortgage^ 
 itself, the tenant for life loses the rents of the part sold in 
 the case of a sale, and keeps down the interest in the case 
 of a mortgage : Ainslie v. Harcourt, 28 Bea. 313 ; 
 Bradford v. Bro^.vnjohn, 3 Ch. 715 ; and see Isaac v. 
 Wall, 6 Ch. D. 706. 
 
 The result is the same where the sale or mortgage is of 
 another estate, in which case the tenant for life of that 
 estate is in a similar position : Ibid. 
 
 Where the expenses of renewal are directed to be Renewal 
 paid out of the rents and profits, the whole burden is rents. 
 thrown upon the tenant for life : Montford v. Cadogan, 
 19 Ves. 635 ; Shaftesbwi^ v. Marlborough, supra ; Solley 
 V. Wood, 29 Bea. 482. 
 
 Trustees in this case must retain a sufficient part of the Sinking 
 rents as they accrue to meet the renewal when it becomes "° ' 
 necessary : Ibid. 
 
 But it seems that if, notwithstanding the direction to Annnal 
 pay out of rents, the intention is not that the payment 
 should be made out of the annual rents, the corpus of the 
 estate maj' be made to bear the expense according to the 
 rules for apportionment above referred to : Allan v. Back- 
 house, 2 V. & B. 65 ; explained in Solley v. Wood, supra; 
 and see Shaftesbury v. Marlborough, supra ; Lewin, 324. 
 
 And where the direction is to raise out of rents or by Renewal 
 mortgage, the power to mortgage is not conclusive as o^t^o^eiits 
 to the ultimate incidence of the charge, which will mortgage, 
 still depend upon the intention just referred to : See 
 Milsintown v. Portmore, 5 Madd. 471 ; Jones v. Jones, 
 supra; Greenwood v. S vans, supra; Ainslie v. Harcourt, 
 supra ; Solley v. Wood, 29 Bea. 482. 
 
CHAPTER XXI. 
 
 RULE AGAINST PERPETUITIES AS APPLICABLE TO TRUSTS 
 — TRUSTS FOR ACCUMULATION — THELLUSSON ACT. 
 
 Application 
 of the rule. 
 
 Limitations 
 of terms. 
 
 Charge 
 raisable by 
 excessive 
 term. 
 
 Accumula- 
 tion or 
 manage- 
 ment 
 during re- 
 curring 
 minorities. 
 
 The rule against perpetuities prevents the settlement 
 of property beyond a life or lives in being and 21 years 
 after, and if this rule is infringed in creating a trust, the 
 excessive trust is illegal and void: Boughton v. James, 
 1 H. L. C. 406 ; Browne v. Stoughton, 14 Sim. 369 ; 
 Curtis V. Lukin, 5 Bea. 147. 
 
 An attempt to' engraft limitations on a term tending to 
 a perpetuity, and not merely in trust to attend the 
 inheritance, cannot be supported, and the term -will still go 
 to the executor : Duke of Norfolk's Case, 3 Ch. Ca. 5 ; 
 1 Vern. 164 ; Attorney- General v. Sands, Nels. 133 ; 
 Hunt V. Baker, Freem. 62. 
 
 A charge to be raised by means of a term, in case any 
 of the testator's younger sons or their issue should become 
 entitled to the estate, for the benefit of such as should not, 
 was held void for remoteness : Sykes v. Sykes, 13 Eq. 56 ; 
 following Case v. Drosier, 2 Keen, 764, 5 M. & Cr. 246 ; 
 Baker v. Tucker, 3 H. L. C. 106. 
 
 And a trust to accumulate, if any person for the time 
 being entitled to the possession of the rents should be 
 under 21, is void for remoteness : Browne v. Stough- 
 ton, 14 Sim. 369 ; Marshall v. Holloway, 2 Swans. 432 ; 
 Southampton v. Hertford, 2 V. & B. 54. 
 
 But any trust under which accumulations would vest 
 within the permitted period is good : Oddie v. Brown, 4 
 D. & J. 179. 
 
 A power given to trustees of a term to enter and manage 
 
ACCUMULATIONS — THELLUSSON ACT. 153 
 
 duiing the minorities arising under a strict settlement, is 
 also void for remoteness : Floyer v. Bankes, 8 Eq. 115. 
 
 Gifts for purposes not void as coming within the 
 purview of the Mortmain Act may still be invalid, as 
 offending against the rule against perpetuities : Thomson 
 V. Sfiakespear, 1 D. F. & J. 399 ; Came v. Long, 2 D. 
 F. & J. 75. 
 
 0/ Trusts to A ccumulate : Thellusson Act. 
 
 By the Thellusson Act (39 & 40 Geo. 3, c. 98) no Periods for 
 property can be settled so that the rents, or produce tionTThel- 
 thereof, shall be wholly or partially accumulated longer lusson Act. 
 than the life of the settlor, or the term of 21 years 
 from his death, or during the minority of any person 
 who shall be living, or in ventre sa 7)iere, at the time of 
 the settlor's death, or during the minority of any person 
 who, under the trusts would for the time being, if of full 
 age, be entitled to the rents, dividends, or produce ; and 
 in every case where any accumulations are directed other- 
 wise, such direction shall be null and void, and the 
 accumulations shall go to the person who would have 
 been entitled to the rents and produce if such accumula- 
 tions had not been directed : (s. 1). 
 
 But this provision does not extend to a provision Exception 
 for payment of debts of the settlor or other persons, for portions' 
 raising portions, or touching the produce of timber : (s. 2). »"<! timber 
 
 This Act is extended to Scotland by 11 & 12 Vict. c. „ 7' , 
 
 •' Scotland, 
 
 36, s. 41. 
 
 With regard to Ireland, see Mlis v. Maxwell, 12 Bea. Ireland. 
 104 ; Heywood v. Heywood, 29 Bea. 9 ; Frelce v. Carbery, 
 16 Eq. 461. 
 
 The various periods during which the trust is perniitted One period 
 to continue, being in the alternative, only one of such ""^y j'^" 
 periods can be taken by the settlor : Wilson v. Wilson, 1 
 Sim. N. S. 288 ; Re Rosslyn, 16 Sim. 391 ; Ellis v. 
 Maxwell, 3 Bea. 595. 
 
 Though the period be not made to commence from the Time runs 
 death of a testator, any such postponed period for accumu- „jT ^f*^ 
 
154 
 
 ACCUMDLATIONS — XHELLUSSON ACT. 
 
 Lives must 
 be in ex- 
 istence. 
 
 Effect of 
 infringe- 
 ment of 
 the Act. 
 
 Accumula- 
 tion by 
 operation 
 of law. 
 
 Direction 
 to pay 
 premiums 
 on policy. 
 
 S. 2 extends 
 to future 
 debts. 
 
 Discretion 
 as to 
 raising 
 
 lation must cease when 21 years after the death have 
 elapsed : Webb v. Webb, 2 Bea. 493 ; Attorney General 
 V. Poulden, 3 Ha. 555. 
 
 The Act prevents an accumulation during the minority 
 of an unborn child : Haley v. Bannister, 4 Madd. 275 ; 
 Ellis V. Maxwell, 3 Bea. 596, 597. 
 
 And an accumulation until an unborn child attains 21 
 is therefore bad beyond 21 years : Longdon v. Simson, 
 12 Ves. 295. 
 
 If the period is beyond the statutory limit, but not too 
 long with regard to the rule against perpetuities, the trust 
 is void for the excess over ' the prescribed time : Griflths 
 V. Vere, 9 Ves. 127 ; Southampton v. Hertford, 2 V. 
 & B. 54 ; Longdon v. Simson, 12 Ves. 295 ; Scarisbrick 
 V. Skelmersdale, 17 Sim. 187; Marshall v. Holloway, 
 2 Swans. 432 ; Boughton v. James, 1 H. L. C. 406 ; 
 Turvin v. Newcome, 3 K. & J. 16 ; and see Tewart v. 
 Lawson, 18 Eq. 495. 
 
 Where the settlement or will contains no express direc- 
 tion to accumulate, yet if an accumulation to meet certain 
 contingencies must take place, the case may, it seems, 
 fall within the prohibition of the Act : Tench v. Cheese, 
 6 D. M. & G. 461 ; Bective v. Hodgson, 10 H. L. C. 656 ; 
 Mathews v. Keble, 3 Ch. 696 ; and see Bryan v. Collins, 
 16 Bea. 17. 
 
 But this construction will not extend to the case of 
 providing for a debt not in the contemplation of the 
 testator, after an express direction to accumulate for 
 another purpose : Mathews v. Keble, supra. 
 
 A direction by will to pay out of income the premiums 
 on a policy effected on the life of another person is valid 
 for the whole life insured, and not only for 21 years after 
 the testator's death : Bassil v. Lister, 9 Hare, 177. 
 
 The exception in s. 2 extends to debts arising after the 
 death, as well as to those due at the death : Varlo v. 
 Faden, 27 Bea. 255. 
 
 Where trustees have a discretion as to raising the 
 amount of the debts, they should have recourse to mines, 
 
ACCUMULATIONS — THELLtJSSON ACT. 155 
 
 timber, or the like, so as not to annihilate the interest of money to 
 the tenant for life by an exclusive application of rents -. ^^^ ^ 
 Wilson V. Halliley, 1 R. & M. 590 ; Bennett v. Wynd- 
 ham, 23 Bea. 521. 
 
 If they are expressly forbidden to sell, they may also Sales 
 
 , . ... ,1 « forbidden. 
 
 not mortgage or raise the money by leases on fines : 
 Bennett v. Wyndham, supra. 
 
 Where there has been a good trust for accumulation for Where 
 payment of debts, and they have all been paid by sales ori^g^^g^*^ 
 under orders of the Court, the trust is at an end, and sales, 
 remaindermen are not entitled to keep the tenant for life 
 out of possession in order to recoup the estates out of the 
 rents and profits : Tewart v. Lawson, 18 Eq. 490. 
 
 A strict settlement may be made, subject to a long term Raising by 
 for raising an annual sum and accumulating it as a sink- f™^'°^ 
 ing fund for payment of mortgage debts : Bateman v. 
 Hotchkin, 10 Bea. 426 ; Bacon v. Procter, T. & R. 31. 
 
 An accumulation of a portion of income to serve as a Providing 
 sinking fund to protect the rest, was in this view sup- fund to 
 ported as coming within the exception, in s. 2, of direc- s«™/e 
 tions to pay the debts of " some other person": Varlo property. 
 V. Faden, 27 Bea. 255, 1 D. F. & J. 211 ; and see 
 Mathews v. Keble, 3 Ch. 697. 
 
 Such direction must be bond fide for the payment of Debt of 
 the debts of another : Ihid. "some 
 
 other 
 
 Portions already charged, as well as to be charged, are person." 
 within s. 2 : Half or d v. Stains, 16 Sim. 488 ; and see Existing 
 Barrington v. Liddell, 2 D. M. & G. 498. -witiiin s. 2. 
 
 The portions must be strictly portions, and must also oniy 
 be in favour of children whose parent takes an interest, portions 
 under the settlement, in the estate itself : JHyre v. Mars- so called : 
 den, 2 Keen, 564 ; Morgan v. Morgan, 20 L. J. Ch. 109 ; ™te'^est of 
 Sfiaw V. Rhodes, 1 M. & Cr. 135, S. C. nom. Evans v. 
 Hellier, 5 CI. & F. 114 : Jones v. Maggs, 9 Hare, 605 ; 
 ■ Watt V. Wood, 2 Dr. & Sm. 56 ; but see Middleton v. 
 Losh, 1 Sm. & G. 61. 
 
 So a simple direction to divide amongst all the mem- 
 bers of the family is not a provision for portions within 
 
156 ACCUMULATIONS— THELLUSSOK ACT. 
 
 the section : Burt v. Stiirt, 10 Hare, 415 ; Edwards v. 
 
 Tuck, 3 D. M. & G. 40 ; Drewett v. Pollard, 27 Bea. 196 ; 
 
 Mathews v. Keble, 3 Ch. 696. 
 
 Portions A settlor may direct accumulation for portions for the 
 
 of other children of another person so long as their parent takes 
 
 persons. ^n interest under the settlement : Barrington v. Liddell, 
 
 2 D. M. G. 497. 
 Destination As to the rules for determining the title to accumula- 
 thorised' tions made during a period not within the provisions of 
 accumuia- the statute, see Theobald on "Wills, pp. 307—8; 1 Jar- 
 man, 291 et seq. ; Weatherall v. Thomburgh, 8 Ch. D. 
 261. 
 
CHAPTEE XXII. 
 
 OF TRUSTS TO SECURE PORTIONS. 
 
 A PORTION is a pecuniary benefit intended for children Definition : 
 provided by settlement or will, and if charged upon land, ^""^j^io^g 
 is usually secured by limiting a term to trustees upon 
 trust to raise the amount out of rents or by mortgage or 
 sale of the term. The appropriation of the fund, and the 
 time of its vesting and payment, are generally subject to 
 an appointment by the parent, with a provision for equal 
 participation in shares vesting at 21 or marriage, pay- 
 able after the death of the survivor of the parents, if they 
 take a life interest, and payable at the time of vesting, if 
 they do not. Provisions for interim advancement and 
 maintenance until payment, are habitually inserted. See 
 the forms in 3 Dav. Prec. Pt. II„ 744, 986, 988, 1045, 
 1077, 1246, &c. 
 
 For further information as to the meaning of a " por- 
 tion," see 1 Jarm. Wills, 287 et seq. 
 
 Where children are the persons mentioned as to be ^^o m<^y 
 portioned, grandchildren cannot take : Robinson v. Hard- _ 
 castle, 2 B. C. C. 22, 343 ; Smith v. Gamelford, 2 Yes. children. 
 Jun. 698 ; Butcher v. Butcher, 1 V. & B. 79 ; Bxp. Bern- 
 ard, 6 Ir. Ch. R. 133; and see further, note to Alexander 
 V. Alexander, Tudor L. C. R. P., p. 338 et seq. 
 
 By " younger children " is meant such as do not take Younger 
 the bulk of the estate : Duke v. JDoidge, 2 Ves. Sen. 203 
 n. ; Chadvjick v. Doleman, 2 Vern. 527 ; Jermyn v. 
 Fellows, Fon-ester, 93 ; Gollingwood v. Stanhope, L. R. 
 4 H. L. 43; Be Bayley, 6 Ch. 590; and see Umbers v. Jag- 
 gard, 9 Eq. 200 ; Tuite v. Bermingham, L. R. 7 H. L. 634 ; 
 Hervey-Bathurst v. Stanley, 4 Ch. D. 251, 2 App. Oa. 698. 
 
158 
 
 PORTIONS. 
 
 Resettle- 
 ment by 
 eldest son. 
 
 Efifect of 
 disentail 
 on younger 
 son's right. 
 
 Mortgage 
 by eldest 
 eon. 
 
 Younger 
 
 son taking 
 
 estate 
 
 under 
 
 another 
 
 title. 
 
 Or by 
 descent. 
 
 A younger child will therefore become an eldest son 
 and disentitled to a portion if he succeeds to the family 
 estate, whether such a consequence is provided for or not 
 by the settlement : Ghadwiok v. Doleman. supra ; Bavies 
 V. Huguenin, 1 H. & M. 730 ; GoUingwood v. Stanhope, 
 supra. 
 
 On the other hand, if an eldest son attains 21 and dies 
 before the period of distribution without issue, he is to be 
 regarded, for the purpose of ascertaining the portion class, 
 as a younger son, and as such his representatives will take 
 his share : Ellison v. Thomas, 1 D. J. & Sm. 18; Davies 
 V. Huguenin, 1 H. & M. 730 ; GoUingwood v. Stanhope, 
 L. R. 4 H. L. 43. 
 
 But if the first born son, having at some point of time 
 been entitled to a vested interest in the estate, has then 
 joined in a re-settlement of it, he can never afterwards 
 claim a portion : GoUingwood v. Stanhope, supra. 
 
 The possibility of a disentail being an incident of the 
 settlement in such a case, the younger son having become 
 an eldest sou by the death of the first born son during his 
 father's life, is not to lose his portion, though the estate 
 may have gone : Macouhrey v. Jones, 2 K. & J. 684, fol- 
 lowing Spencer v. Spencer, 8 Sim. 87 ; and disapproving 
 Peacocke v. Pares, 2 Keen, 689. 
 
 A mortgage, under similar circumstances, bjj^ an elde£;t 
 son, is regarded as only a partial anticipation of the estate, 
 and is not held to have the effect of preventing the shift- 
 ing of the estate to the second son : Harrison v. Round, 
 2 D. M. & G. 190 ; and see Fazalcerly v. Ford, 4 Sim. 
 390 ; Taylor v. Harewood, 3 Ha. 372. 
 
 But if the estate has gone out of settlement by a bar of 
 the entail, and the eldest son having died without issue, 
 devises the estate to his younger brother, it seems that 
 the latter (though no reasons are given in the report), 
 taking it not under the settlement, but under the will, 
 may still take his portion : Adams v. BecJc, 25 Bea. 648. 
 
 So also if he takes it not under the settlement, but by 
 descent : Sing v. Leslie, 2 H. & M. 68. 
 
POETIOKS. 159 
 
 If there be an eldest daughter, but a sou younger than Eldest 
 such daughter takes the estate, she will be treated as a treated as 
 younger child : Pierson v. Garnet, 2 B. C. C. 38 ; Heneage '^?^J\^^'^ 
 V. Hunlohe, 2 Atk. 456 ; Beale v. Beale, 1 P. W. 243 ; ° ' ' 
 Teynham v. Webb, 2 Ves. Sen. 210. 
 
 But if an eldest daughter, or one who, on becoming such, Eldest 
 takes the property, she loses her portion ; Korihumher- takkig 
 land V. Egremont, 1 Ed. 435, 451 ; Simpson v. Frew, 5 1, estate. 
 Cfa. E. 517. 
 
 Where there are daughters only, it seems that a trust Where 
 to raise portions, if there should be children besides an and^nosrai 
 eldest or only son, does not take effect : Walcott v. Bloom- 
 field, 4 Dr. & War. 211, 235. 
 
 A child en ventre sa mere is entitled to a portion Child en 
 raisable on the father's death : Beale v. Beale, 1 P. W. 243. l^^^'e^ '" 
 
 The latitude of construction allowed by the Court in construc- 
 determining who are younger children is not extended to t'on of gifts 
 
 * /. ? different 
 
 cases where the provision is made by persons not parents where 
 or in loco parentis : Hall v. Hewer, Amb. 202 ; Matthews ''™«''* 
 
 ■^ _ ' ^ ^ comes from 
 
 V. Paul, 3 Swans 328, 334 ; Wilbraham v. Scarisbrick, 1 stranger, 
 H. L. C. 167 ; Lyddon v. Ellison, 19 Bea. 565 ; but see p°'ettTr 
 
 Sugd. Pow. 680. one in loco 
 
 A grandmother has been regarded as in loco parentis \, 
 for this purpose : Teynham, v. Webb, 2 Ves. Sen. 198 ; mother. 
 Lincoln v. Pelham, 10 Ves. 173. 
 
 And an uncle : Puke v. Poidge, 2 Ves. Sen 203 n. Uncle. 
 
 For the cases showing who is considered to be in loco 
 pai'entis, see ante, p. 65. 
 
 If the children to take are those of a designated person, children 
 children of any marriage of such person will take : Brath- ^^ different 
 
 7 . IT marriages. 
 
 wa%te V. Brathwatte, 1 Vern. 334. 
 
 Unless the contrary be provided, children to be begotten Chile ren 
 will include those already born, and children begotten will ^'^so^^'"- 
 include those to be born: Hewet v. Ireland, 1 P. W. 426; begotten. 
 Slingsby v. , 10 Mod. 398 ; Hebblethwaite v. Cart- 
 wright, Forrester, 30 ; Poe v. Hallett, 1 M. & S. 124 ; as to 
 the meaning of such words in a will, see Theobald, pp. 139, 
 148. 
 
160 
 
 PORTIONS. 
 
 Where no 
 time for 
 vesting 
 mentioned. 
 
 Vesting not 
 postponed 
 to period 
 for raising. 
 
 Though 
 such period 
 be fixed. 
 
 Nor where 
 child or his 
 executors 
 to take. 
 
 Nor right 
 of entry. 
 
 Nor trust 
 for sale. 
 
 Nor cove- 
 nant to 
 
 pay. 
 
 Nor "where 
 payable at 
 death of 
 life tenant. 
 
 Vesting of Portions. 
 
 Portions are usually made to vest at 21 or marriage, 
 and made payable after the death of both parents. 
 
 If no period of vesting is specified, they will not be held 
 to vest until they are required, and the above periods are 
 then fixed as being presumed to be in accordance with 
 the intention of the provision : Brathwaite v. Brathwaite, 
 1 Vern. 334 ; Bruen v. Bruen, 2 Vern. 438 ; Dormer v. 
 Dormer, Finch. 433 ; Hinchinhroke v. Seymour, 1 B. C. 
 
 C. 394 ; Tunstal v. Bracken, 1 B. C. C. 124 n. ; Edge- 
 tvorth V. Edgeworth, Beatt. 328 ; Howgrave v. CaHier, 3 
 V. & B. 79 ; Wellesley v. Mornington, 2 K. & J. 153 ; 
 Swallow V. Binns, 1 K. & J. 417 ; Remnant v. Hood, 2 
 
 D. F. & J. 396 ; Day v. Radcliffe, 3 Ch. D. 654. 
 Vesting is not postponed, though it may not be in ac- 
 cordance with the settlement to raise the portion before 
 the death of the tenant for life or until after the usual age 
 of 21 years or marriage : Smith v. Partridge, Amb. 266 ; 
 King v. Withers, Forrester, 117 ; Hodgson v. Ravjson, 1 
 Ves. Sen. 44 ; Uvans v. Scott, 1 H. L. C. 57. 
 
 Nor where portions are to be raised by sale or mortgage 
 at a specified time after a testator's death : Cowper v. Scott, 
 3 P. W. 119 ; Wilson v. Spencer, 3 P. W. 172. 
 
 Nor where the portion is limited to the child and his 
 executors : Lowtherv. Condon, 2 Atk. 127; but see Stone 
 V. Evans, 2 Atk. 86 ; Hutcheson v. Hammond, 3 B. C. C. 
 128. 
 
 Nor where a right of entry is given upon non-payment : 
 Sherman v. Collins, 3 Atk. 318 ; Embrey v. Martin, 
 Amb. 230. 
 
 Nor where there is a trust by will to sell and apply the 
 proceeds for portions : Bartholemew v. Meredith, 1 Vern. 
 276 ; and see Doughty v. Bull, 2 P. W. 319. 
 
 Nor where there is a covenant to pay the portion to 
 trustees : Fitzgerald v. Field, 1 Russ. 430. 
 
 The Court, in the absence of imperative words to the 
 contrary, construes a provision for payment at the death 
 
VESTING OF POETIONS. 161 
 
 of the tenant for life so as not to interfere with the vest- 
 ing, though the child die in the parent's lifetime : Emperor 
 V. Rolfe, 1 Ves. Sen, 208 ; Swallow v. Binns, 1 K. & J. 
 425, in which the earlier cases are mentioned; Gurrie v. 
 Larkins, 12 W. E. 515; Jeyes v. Savage, 10 Ch. 563; 
 Day V. Radcliffe, 3 Gh. D. 654, 
 
 This is the case, though the trust be to raise the fund Death ; 
 if the surviving parent " leave " any child at his death: ^jiiiXeii,^ 
 Woodcock V. Bulce of Dorset, 3 B. C. C. 569, 3 V. & B. 
 82 n. ; Powis v. Burclett, 9 Ves. 428 ; Howgrave v. 
 Cartier, 3 V. & B, 79 ; Perfect v. Ciorzon, 5 Madd. 442 ; 
 Torres v. Franco, 1 Euss. & My. 649 ; and see Swallow 
 V. Binns, supra. 
 
 But imperative words importing the necessity of Vesting 
 surviving the parents are strictly construed : see ^^^^, '^'^" 
 
 '^ ^ •' tinctly con- 
 
 SUpra : ditional oa 
 
 Thus, if on failure of children living at the death there p^rent"^ 
 is a gift over, and thereupon the term is to cease, sons who Gift over 
 die in the lifetime do not take : Hotchkin v. Humfveti, 2 *°<^ '^^^^'^ 
 
 •' 'J' of term. 
 
 Madd. 65 ; Wingrave v. Palgrave, 1 P. W. 401 ; and see 
 Re Crosse, 32 L. J. Ch. 344. 
 
 The like is the case' where daughters are to take after Or to 
 failure of male issue : Gordon v. Paynes, 3 P. W. 134 ; ^^f^^^l^ 
 Maiden v. Menill, 2 Atk. 8 ; Worsley v. Granville, 2- of issue 
 Ves. Sen. 331. '"'''■ 
 
 Or when the payment is deferred till the discharge of Postpone- 
 debts': Bernard v. Mountague, 1 Mer. 422. delfts. 
 
 Or if the portions are to be allotted to a given number Class left 
 of children : Mosley v. Mosley, 5 Ves. 248. t^ned.'''" 
 
 With reference to the rule (amie, p. 158) that a younger When 
 son's portion is devested if he become the eldest son, it is f^^^_ ^"^ 
 to be observed that it is not till the time of payment that tained. 
 the fact as to who is the eldest son can be ascertained : 
 Ellison V. Thomas, 1 D. J. & S. 27 ; Collingwood v. Stan- 
 hope, L. E. 4 H. L. 43 ; but see Windham v. Graham, 1 
 Euss. 331, and cf. Re Bayley, 6 Ch. 590. 
 
 Portions do not vest so as to be payable during the Portions 
 parent's life where they arise under a settlement upon a seltfement 
 
162 
 
 PAYMENT OF PORTIONS. 
 
 on second 
 marriage 
 for former 
 children by 
 name. 
 
 Portionists 
 by name. 
 
 Condition 
 of daugh- 
 ter's hus- 
 band 
 settling 
 property. 
 
 Consent to 
 marriage. 
 
 second marriage in favour of the former children nomina- 
 tion : Savage v. Carroll, 1 B. & B. 205. 
 
 And as to the title of children whose portions are 
 charged by name, see Jermyn v. Fellows, Forrester, 93 ; 
 Broadmead v. Wood, 1 B. C. C. 77. 
 
 As to a condition precedent that a daughters hus- 
 band should make a settlement, see O'Callaghan v. Cooper, 
 5Ves. 117. 
 
 A condition precedent that certain consents of trustees 
 or others shall be given to the marriage of daughters is 
 good (see ante, p. 104) : Clarke v. Parker, 19 Ves. 15 ; 
 Khig V. Withers, Pr. Ch. 348 ; and see Creagh v. Wilson, 
 2 Vern. 572. 
 
 As to conditions subsequent, see Reynish v. Martin, 3 
 Atk. 330. 
 
 When 
 
 usually 
 
 payable. 
 
 At specified 
 time. 
 
 After 
 father's 
 death and 
 in mother's 
 lifetime, 
 ■when. 
 
 Prior estate 
 in grand- 
 father. 
 
 where con- 
 
 Payvient of Portions. 
 
 It is usually provided that portions shall be paid at 
 21, or marriage, if the event happen after the parents' 
 death, and, if not, then immediately after the death of 
 the survivor; see 3 Dav. Free, Pt. I., p. 452. 
 
 If no such provision is made, and no contrary intention 
 appears, portions payable at fixed times must be then 
 paid, though parents may be living : Sandys v. Sandys, 1 
 P. W. 707 ; Bacon v. Clark, ibid. 478; Stanley v. Stanley, 
 1 Atk. 548 ; Codrington v. Foley, 6 Ves. 379 ; see and 
 consider Massy v. Lloyd, 10 H. L. C. 248 ; Lawton v. 
 Swetenham, 18 Bea. 98. 
 
 If the father dies ■without issue male, the portions of 
 daughters may be ralsable during the surviving mother's 
 lifetime : Greaves v. Mattison, 2 T. Jones, 201 ; Stani- 
 forth V. Staniforth, 2 Vern. 460. 
 
 Where the prior estate belongs to a grandfather who 
 survives his son, the portions of the grandchildren are 
 subject to the same rule : Ravenhill v. Danscy, 2 P. W. 
 179 ; Codrington v. Foley, 6 Ves. 364. 
 
 A contrary intention is presumed in the following 
 
PAYMENT OF PORTIONS. 103 
 
 circumstances, — in which the money is not raised during t^ry in- 
 
 . T . r 1' I* tention 
 
 the tenancy for hfe : — presumed. 
 
 Where the term is to be void, if the father die without Death of 
 leaving a daughter : Reresby v. Newland, 2 P. W. 93. witiiout 
 
 If a power be given to appoint the shares of the ^^^™s 
 portionists : Codrington v. Foley, Q Ves. 380 ; Wynter v. ^^^^^ „£ 
 Bold, 1 S. & S. 507. appoint- 
 
 T « . . , , , ment. - 
 
 It a power is given to the parent to revoke his appoint- p^^^.^. ^f 
 
 ment of the portions : Ibid. revocation. 
 
 If the portion term be limited in reversion expectant '^^^'^ i" 
 on the cesser of the life estate : Butler v. Duncomb, 
 1 P. W. 448. 
 
 If the provision for maintenance be deferred until the Mainten- 
 
 trustees come into possession of the term : Brome v. deferred. 
 Berkley, 6 B. P. C. 108; but see Hall v. Carter, 2 
 Atk. 354. 
 
 If the portions be made conditional on there being male Condition 
 
 issue to take the estate : Stanley v. Stanley, 1 Atk. 549. °gg™* "^ 
 
 If the death of the wife without issue male is a con- taking 
 dition precedent to the title to the portions : Char)ipney 
 v. Champney, 10 Mod. 315 ; but see Hellier v. Jones, 1 
 Eq. Ca. Ab. 337. 
 
 Where the portion trust is preceded by a jointure Prior join- 
 charge : Hall V. Carter, 2 Atk. 354 ; Church'man v. *J^^ 
 Harvey, Amb. 335. 
 
 Where the time is actually fixed after the death of the Payment 
 
 tenant for life : Yerney v. Verney, 2 Ed. 26 ; Remna7it v. till after 
 
 Hood, 2 D. F. & J. 396. f^f * "^ 
 
 lite-tenant. 
 
 Where the question as to who are to share depends on Contin- 
 an event not ascertainable until the death of the tenant genoyuu- 
 for life : Corbett v. Maydwell, 2 Vern. 640 ; Hotchkin v. abie\iii°' 
 Humfrey, 2 Madd. 65. his death. 
 
 But if the parent have power so to direct, the money Power to 
 may be raisable in his lifetime : Mayhew v. Middleditch, raising in 
 1 B. C. C. 162 ; HinchinbroJcev. Seymour, ibid. 395; and appointor's 
 
 life 
 
 see Green v. Belchier, 1 Atk. 505. 
 
 Even if the term be reversionary : Wy7iter v. Bold, Where 
 
 1 S. & b. 507. versionary. 
 
 M 2 
 
164 
 
 MODE OF RAISING PORTIONS, 
 
 Baising out 
 of annual 
 profits. 
 
 As to the time of raising portions out of annual profits, 
 see Ivy v. Gilbert, 2 P. W. 20; Baly v. French, 6 B. P. C. 55. 
 
 By sale or 
 mortgage : 
 When out 
 of rents or 
 profits at 
 fixed time. 
 
 "As soon 
 as may be. ' 
 
 Where 
 term on 
 rerersion. 
 
 Kents in- 
 sufficient. 
 
 Applica- 
 tion of ac- 
 cumula- 
 tions. 
 
 Sale not 
 eligible 
 mode of 
 raising. 
 
 No sale 
 
 "where 
 
 gradual 
 
 raising 
 
 directed. 
 
 Form of 
 
 Where no 
 
 term 
 
 limited. 
 
 How Portions are raised. 
 
 If portions are to be raised at a fixed time out of rents 
 and profits, a sale or mortgage is a proper course : Baclc- 
 house V. Middleton, 1 Cb. Ca. 173 : Trafford v. Ashton, 1 
 P. W. 415 ; Bootle v. Blundell, 19 Yes. 528 ; Allan v. 
 Backhouse, 2 V. & B. 65 ; see Mills v. Banks, 3 P. W. 7. 
 
 So also if they are to be raised "as soon as conveniently 
 may be : " Trafford v. Ashton, 1 P. W. 419. 
 
 And d fortiori if the term be reversionary : Gerrard v. 
 Gerrard, 2 Vern. 458. 
 
 Or if the rents and profits are insufficient, and the 
 portions are to be raised at a fixed time : Stanhope v. 
 ThacJcer, Pr. Ch. 436. 
 
 Accumulations of income belonging to an infant devisee 
 subject to a portion charge, are first applicable for portions : 
 Oheden v. Okeden, 1 Atk. 550 ; WaHer v. Hutchinson, 
 1 S. & S. 276. 
 
 But a sale should not be authorised by the settlement, 
 for it is an ineligible mode of raising portions, though it 
 may be resorted to when no other means are available : 3 
 Dav. Prec. Pt. I., p. 447, citing Tasker v. Small, 6 Sim. 
 625 ; Garmstone v. Gaunt, 1 Coll. 577 ; Jones v. Jones, 5 
 Ha. 461 ; Hall v. Hurt, 2 J. & H. 76. 
 
 And an intention contrary to a sale or mortgage is 
 shown by a direction for raising portions gradually, or by 
 the annexation of a leasing power : Ivy v. Gilbert, 2 P. 
 W. 13 ; i:velyn v. Uvelyn, 2 P. W. 673 ; Small v. Wing, 
 5 B. P. C. 66 ; and see Bennett v. Wxjndham, 23 Bea- 
 521. 
 
 As to whether a lease for securing portions should be on 
 a fine or at rack rent, see Smith v. Evans, Amb. 633. 
 
 Where portions are simply charged, and no term is 
 limited, tliey may be raised by mortgage or sale, though a 
 power of entry and distress be expressly given : Kelly v. 
 Bellew, 4 B. P. C. 495 ; Meynell v. 3Iassey, 2 Vern. 1. 
 
PORTIONS : AMOUNT EAISABLE. 165 
 
 Several mortgages may be effected of different parts of Hepeated 
 
 the property : Mosley v. Mosley, 5 Yes. 248. mortgages. 
 
 "Where the portion term is too short to serve as a FeUing 
 
 security, timber or mines may be resorted to instead of working 
 
 the estate itself: Offley v. Offley, Pr. Ch. 27. '^^"'='- 
 
 Ainounts raisable. 
 
 An excessive benefit to any one child should be guarded How to 
 
 against by providing that no more should be raised than against 
 
 would have been raisable if children who have died under f'foossive 
 
 Denent to 
 
 age and unmarried had not been born : Greaves v. individual 
 
 Mattison, 2 T. Jones, 201 ; Re Colley, 1 Eq. 496 ; Knapp '=''"'^"''- 
 V. Knapp, 12 Eq. 238. ' 
 
 In the absence of such a provision, the whole amount is Effect of 
 
 raisable though some may have so died : Hemming v. of such 
 
 Griffith, 2 Giff. 403. provision. 
 
 Though part of the lands charged may be forfeited or Where part 
 
 lost in an action, the whole amount is to be raised from i^^^^ 
 the remainder : Sheldon v. Dormer, 2 Vern, 310 ; Han- 
 sard V. Kemeys, 2 J. Wils. 106. 
 
 But if the estate be insufficient, the portionists must -^bate- 
 ab'ate rateably : Brathiuaite v. Bratlnvaite, 1 Vern. 334. 
 
 The costs of raising portions are payable out of the Costs, 
 estate, and not out of the portions : Michell v. Michell, 4 
 Bea. .549 ; Armstrong v. Armstrong, 18 Eq. 541. 
 
 Wliere several estates are to bear the portions equally, Apportiou- 
 
 they are charged with amounts respectively referable between 
 
 to their values at the time of payment : Wardell v. several 
 
 ^ ■> . estates 
 
 Wardell, 4 B. C. G. 286 ; Heveningham v. Heveningham, ciiarged. 
 2 Vern. 35.5. 
 
 If one of the estates is withdrawn from the settlement, "With- 
 
 1 1 ^ 1 • , • J' J.1 1 drawal of 
 
 the other bears only its proper proportion oi the charge : one estate 
 
 Clough V. Clough, 5 Ves. 710. X.rr..., 
 
 Where real or personal estate are made liable for collateral 
 
 portions, the Court will look to the intention as to security. 
 whether the one or the other is to be regarded as the 
 primary, or only as the collateral source of payment: 
 Lechmere v. Charlton, 15 Ves. 193. 
 
1G6 
 
 INTEREST ON PORTIONS: MAINTENANCE. 
 
 liiiT. 
 
 Where there is a prior charge on one of the estates, the 
 estates are marshalled in favour of portionists : Lanoy 
 V. Buke of Athol, 2 Atk. 444 ; Reeve v. Reeve, 1 Vern. 
 219. 
 
 As to marshalling between creditors and portionists 
 under a will, see Sherman v. Collins, 3 Atk. 320 ; Pearce 
 V. Loman, 3Ves. 135. 
 
 4 per cent, 
 from time 
 when 
 raisaLle. 
 
 Where 
 portions 
 charged 
 on rents. 
 
 Under a 
 power. 
 
 Laches. 
 
 Interest 
 from death 
 of parent. 
 
 Interest and Maintenance. 
 
 Interest on portions at 4 per cent, is payable, unless 
 otherwise provided, from the time when they are raisable, 
 though not from the period when they vest; Butler v. 
 Luncomb, 1 P. W. 448 ; Trafford v. Ashton, ibid. 41.5 ; 
 Evelyn v. Evelyn, 2 P. W. 669 ; Bagenal v. Bagenal, 
 6 B. P. G. 81 ; Hall v. Garter, 2 Atk. 358 ; Pomfret v. 
 Windsor, 2 Ves. Sen. 487 ; Lewis v. Freke, 2 Ves. Jun. 
 511. 
 
 If the portions are payable out of rents until a sufficient 
 sum is obtained, no interest is allowable in the meantime : 
 Ivy v. GilbeH, 2 P. W. 13 ; but see Small v. Wing, 5 B. 
 P. C. 69 ; Daly v. French, 6 Ibid. 55. 
 
 If the portions are raisable under a power, interest is 
 computed from the time specified by the appointment 
 under the power: Mayhew v. Middleditch, 1 B. C. C. 
 1G2 ; Conway v. Conway, 3 Ibid. 267 ; Lewis v. Freke, 
 2 Ves. Jun. 507. 
 
 Though laches may not prevent the raising of the por- 
 tion, it will prevent interest being allowed until action 
 brought : Merry v. Ryves, 1 Ed. 1 ; Barrington v. 
 O'Brien, 1 Ball & Beatty, 180. 
 
 When portions are made payable at 21 or marriage, 
 interest will be given by way of maintenance though not 
 provided by the settlement, until the time for payment, if 
 the father dies before such time has arrived : Englefield 
 V. Englefield, 2 Vern. 236 ; Warr v. Warr, Pr. Ch. 214 ; 
 Oreenhill v. WalJoe, Ibid. 367 ; Harvey v. Harvey, 2 
 P. W. 21 ; Incledon v. Northcote, 3 Atk. 430, 438 ; and 
 see Mostyn v. Mostyn, W. N. 1878, 180. 
 
maintenance: sinking of portions. 167 
 
 The rule is the same though the term be in reversion : Where 
 Staniforth v. Staniforth, 2 Vern. 460. Tereionary. 
 
 Past maintenance may be recovered upon the portions Past main 
 of children who have died since the father's death, and 
 before the time of payment : Staniforth v. Staniforth, 
 supra; Bond's Case, 2 Ch. Ca. 165. 
 
 But not as to those who predeceased him : Oorheit v. 
 Maidwell, 1 Salk. 159. 
 
 Interest is not to be permitted to accumulate, but must y™™'*' 
 be used for purposes of maintenance : Boycot v. Cotton, interest. 
 1 Atk. 553. 
 
 A subsequent provision under the father's will does not Satisfac- 
 
 , . , . tion of 
 
 oust the title to maintenance : Bond's Case, supra ; mainten- 
 Ravenhill v. Bansey, 2 P. W. 179 ; Foljambe v. Wil- ^Xe^'Lnt 
 loughhy, 2 S. & S. 165. -wiu. 
 
 Maintenance is payable immediately after the parent's Mainten- 
 death until the time of raising, unless a contrary in- death of" 
 tention be expressed : Lyddon v. Lyddon, 14 Ves. 558 ; parent. 
 Hunie V. Rundell, 2 S. & S. 174 ; Seal v. Beat, Pr. Ch. 
 405. 
 
 As to maintenance in respect of expectant portions, see Where per- 
 Knapp V. Knapp, 12 Eq. 238. _ ^i™,. 
 
 No money is applicable- for advancement, unless, as is Advance- 
 usual, such an application is expressly provided for : ™ 
 Warr v. Warr, Pr. Ch. 213 ; and see Robinson v. 
 Cleator, 15 Ves. 626 ; Leivis v. Lewis, 1 Cox, 162. 
 
 See further on the subjects of maintenance and advance- 
 ment, next chapter. 
 
 As to what is an " advancement by portion " under the 
 Statute of Distributions, see Taylor v. Taylor, 20 Eq. 155. 
 
 When Portions sink. 
 
 Unless a contrary intention appear, portions charged On death 
 on real estate sink if the portionist dies before vesting : vesting. 
 Poulet V. Poulet, 1 Vern. 204 ; Boycot v. Cotton, 1 Atk. 
 555. 
 
 An interim provision as to interest in the meantime Interim 
 does not prevent the sinking: Boycot v. Cotto7i, supra : 
 
168 
 
 SINKING OF PORTIONS — MEEGEE. 
 
 Conditions 
 tintullilled. 
 
 On default 
 of appoint- 
 ment : 
 
 on land to 
 be bought. 
 
 Yate V. Fettiplaoe, Pr. Ch. 140; Warr v. Warr, Pr. Ch. 
 213. 
 
 Portions will sink if the condition upon which they are 
 to be taken is not complied with, e.g., marriage with con- 
 sent : Harvey v. Aston, 1 Atk. 361 ; Pulling v. Reddy, 
 1 Wils. 21. 
 
 If the fund be raisable out of real and personal estate, 
 the portions in such a case sink as to the realty, though 
 not as to the personalty : Poulet v. Poulet, 1 Vern. 204 ; 
 Attorney-General v. Milner, 3 Atk. 11.5 ; Pearce v. 
 Loman, 3 Ves. 135. 
 
 If charged on land to be purchased, the rule as to sink- 
 ing is the same as with regard to an immediate charge on 
 land : Harrison v. Naylor, 3 B. C. C. 108. 
 
 Where 
 portionist 
 takes 
 estate ; 
 
 or becomes 
 tenant 
 in tail. 
 
 Accrued 
 share. 
 
 Legal 
 estate in 
 mortgage 
 prevents 
 merger. 
 
 No merger 
 
 against 
 
 creditors. 
 
 Intention 
 against 
 merger 
 prevails. 
 
 Partial 
 merger. 
 
 Merger of PoHions. 
 
 Portions merge if the portionist become owner of the 
 estate; Bonisihorpe v. Porter, 2 Ed. 162; Gompton v. 
 Oxenden, 2 Ves. Jun. 261 ; and see notes to Forbes v. 
 Moffatt, Tudor, R. P. Cases, 837. 
 
 The rule is probably the same where the portionist 
 becomes tenant in tail; Ware v. Polhill, 11 Ves. 277; 
 Smith V. Frederick, 1 Euss. 174, 208. 
 
 A distributive share of the portion fund of a deceased 
 portionist does not merge in the eldest son's interest 
 when he takes the estate : Richards v. Richards, Johns. 
 754. 
 
 An outstanding legal estate in a mortgagee will prevent 
 a merger : Gwillam v. Holland, cited, 2 Ves. Jun. 263 ; 
 Otvjay-Cave v. Otway, 2 Eq. 725. 
 
 And there is no merger in derogation of the rights of 
 creditors or infants : Bonisthorpe v. Porter, 2 Ed. 162. 
 
 Merger may also be prevented by anything showing an 
 intention that the portions shall not merge : Forbes v. 
 Moffatt, 18 Ves. 391 : Smith v. Frederick, 1 Euss. 209 ; 
 Richards v. Richards, Johns. 766. 
 
 If part only of the land comes to the owner of the por- 
 tion, only a proportionate part of the portion merges : 
 
SATISFACTION — DOUBLE PORTIONS. 169 
 
 Price V. Seys, Barn. 117 ; Rushout v. Rushout, 6 B. P. 
 C. 89. 
 
 If the portions are equal distinct sums to be given to Where 
 children as tenants in common, as distinguished from a take^as'^ ^ 
 gross sum otherwise distributable, no merger will take tenants in 
 
 1 •(■ 1 n 1 1 -1 1 r\i common. 
 
 place it the estate comes to any oi such children : Utway- 
 Cave V. Otvjay, 2 Eq. 725. 
 
 Satisfaction. 
 
 Portions may be satisfied by a legacy bequeathed by a By subse- 
 parent, or one in loco parentis, if the legacy be of an ^"^°' 
 amount equal to or larger than the portion : liinchcli'ffe 
 V. Hinclicliffe, 3 Ves. 516. 
 
 A smaller provision may be a satisfaction, as far as it By lesser 
 goes, in point of interest or amount : Jesson v. Jesson, 
 2 Vern. 255 ; Warren v. Warren, 1 B. C. C. 305 ; 
 Thynne v. Glengall, 2 H. L. C. 131 ; and see McCarogher 
 V. Whieldon, 3 Eq. 236 ; Chichester v. Coventry, L. R. 2 
 H. L. 92; Bethell v. Abraham, 3 Ch. D. 590 n.; Fairer v. 
 Park, 3 Ch. D. 309 ; Mayd v. Field, 3 Ch. D. 587. 
 
 Identity of benefit is not required ; variations of times Small 
 of vesting, delay in payment, &c., are not sufficient to over- „f interest 
 throw the rule that the Court leans against double por- i" ™bse- 
 tions : Jesson v. Jesson, 2 Vern. 255 ; Every v. Gold, 
 2 Ch. R 1 ; Thynne v. Glengall, 2 H. L. C. 131. 
 
 But a contingent legacy is no satisfaction : Bellasis v. Contingent 
 Uthivatt, 1 Atk. 426 ; Duffield v. Smith, 2 Vern. 258. ^^°^^- 
 
 Nor a life interest or reversion : Hancock v. Hancock, Life in- 
 
 5 Vin. Abr. 292. rere'rsion. 
 
 Nor a gift of land in fee or for years : Chaplin v. Chap- Gift of 
 lin, 3 P. W. 245 ; Davie v. Hooper, 6 B. P. C. 51 ; Ben- ^''''^■ 
 gough v. Walker, 15 Ves. 507; Goodfellow v. BurcJiett, 
 2 Vern. 298 ; Grave v. Salisbury, 1 B. C. C. 425. 
 
 Both provisions must be by the parent : Roberts v. Both pro- 
 Dixall, 2 Eq. Ca. Ab. 668, pi. 19 ; Walpole v. Conway, ™;°^^^ ^^ 
 Barn. 153. 
 
 The presumption against double portions is to be Strength 
 regarded as fainter where the settlement precedes the °^p^\: 
 
 ° ^ sumption. 
 
170 SATISFACTIOK — DOUBLE PORTIONS, 
 
 will : Chichester v. Coventry, supra ; and see Cooper v. 
 
 Macdonald, 16 Eq. 258; and see Russell v. St. Aubyn, 
 
 2 Ch. D. 398 ; Bennett v. Houldsworth, 6 Oh. D. 671. 
 Second So also ■where the second provision is by another settle- 
 
 settiement. ^^^^ . j^^^^^ ^_ Chambers, 7 D. M. & G. 386 ; Palmer 
 
 V. Neiuell, 8 D. M. & G. 74. 
 Intention It is a question of intention, to be determined by cir- 
 
 to benefit . i i • • p i • 
 
 other clul- cumstances, whether a parent paying portions out oi liis 
 dren where q^^ poc^gt may be taken to mean a benefit for the other 
 
 parent pays , . 
 
 a portion children, or, by keeping up the charge, to benefit his 
 estate: Ford v. Tynte, 2 H. & M. 324, 331, where the 
 earlier cases on this point are mentioned. 
 
 See further on the doctrine of satisfaction, of election 
 in cases of satisfaction, and of the admissibility of ex- 
 trinsic evidence in these cases, notes to Exp. Pye, 2 W. & 
 T. L. C. 356 et seq. 
 
 to one. 
 
CHAPTEE XXIII. 
 
 TRUSTS FOR, AND POWERS OF MAINTENANCE AND 
 ADVANCEMENT. 
 
 I. — Maintenance. 
 
 In all cases, -where any property is held by trustees in Statutorj' 
 trust for an infant, either absolutely, or contingently on mainten- 
 his attaining the age of 21 years, or on the occurrence y°°V'„., 
 of any event previously to his attaining that age, it shall worth's 
 be lawful for the trustees at their sole discretion to pay to "*' 
 the guardians (if any) of such infant, or apply for, or 
 towards the maintenance or education of such infant, the 
 whole or any part of the income to which such infant may 
 be entitled in respect of such property, whether there be 
 any other fund applicable to the same purpose, or any 
 other person bound by law to provide for such mainten- 
 ance or education or not, to accumulate the residue of such 
 income ; and to apply any part or the whole of such 
 accumulations as if the same were income in the then 
 current year : 23 & 24 V. c. 145, s. 26. 
 
 This section is not retrospective, and applies only to Not retro- 
 instruments dated since the 28th of August, 1860. ^^^° '^®' 
 
 It is held that the power given by the section stops Not avail- 
 short at majority, and does not apply to the interval tween^21 
 between 21 and 25, where the legacy is postponed to the ^^^ 25. 
 latter age: Ee Breeds, 1 Ch. D. 228. 
 
 Independently of the Act, and where no other provision Rule as to 
 exists, maintenance may be given where the property is ^^^^? *" ^ 
 given by a parent, though the gift be contingent : Harvey 
 V. Harvey, 2 P. W. 21 ; Hearle v. Greenhank, 3 Atk. 
 716 ; Wynch v. Wynch, 1 Cox, 433 ; Brown v. Temperley, 
 
172 
 
 MAINTENANCE. 
 
 Grand- 
 children. 
 
 Child must 
 be entitled 
 ti income. 
 
 Where 
 mainten- 
 ance given 
 by the 
 Court out 
 of con- 
 tingent 
 legacies. 
 
 Not if 
 given over 
 to persons 
 not in esse. 
 
 Nor if 
 unborn 
 children 
 entitled. 
 
 Trustees 
 not to act 
 under 
 similar 
 rule. 
 
 If inten- 
 tion ex- 
 pressed 
 interest 
 applicable 
 for main- 
 tenance. 
 
 3 Russ. 263 ; Incledon v. Novthcote, 3 Atk. 432 ; Criclcett 
 V. Bolby, 3 Ves. 13 ; Donovan v. Needham, 9 Bea. 164 ; 
 Mostyn v. Mostyn, W. N. 1878, 180. 
 
 Or by a person in loco parentis : Re Cotton, 1 Ch. D. 
 232 ; Re George, 5 Ch. D. 837. 
 
 But grandchildren are not within the benefit of this 
 rule : Festing v. Allen, 5 Ha. 579, and cases cited ; Roper, 
 Leg. 224. 
 
 Where the gift is contingent on attaining 21, the 
 Court ■will not, even since Lord Cranworth's Act, give 
 maintenance, unless the income also would belong to 
 the infant on attaining that age : Re George, 5 Ch. D. 837 . 
 
 Where the Court is administering the estate of the 
 parent, it will, when the contingencies are equal and the 
 adult children, if any, consent, apply the income of the 
 presumptive shares of the infant children for their main- 
 tenance : Evans v. Massey, 1 Y. & J. 196 ; Marshall v. 
 Holloway, 2 Swans. 436 ; Cavendish v. Mercer, 5 Ves. 
 195 n. ; Cannings v. Flower, 7 Sim. 523 ; Re Breeds, 
 1 Ch. D. 228. 
 
 If there are remainders over under which people not in 
 being may take, it is not enough that all the persons in 
 esse who are presumptively entitled are before the Court 
 and consent : Marshall v. Holloway, supra ; Exp. Kehble, 
 ] 1 Ves. 606 ; Turner v. Turner, 4 Sim. 430 ; Parsons v. 
 Coke, 10 W. R. 641 ; Re Arbuckle, 14 W. R. 535. 
 
 Nor where the class may be increased by children 
 coming into existence: Exp. Kehble, supra; Lomax v. 
 Lomax, 11 Ves. 48. 
 
 The application of the income in the manner specified 
 is not open to trustees; the rule being a rule of the 
 Court, inapplicable where the estate is not under adminis- 
 tration : Re Breeds, 1 Ch. D. 228. 
 
 Where a future legacy is given to an infant, though not 
 a child, or one to whom the testator was in loco parentis, 
 with words showing that it was intended for the support 
 of the infant, interest by way of maintenance may be 
 provided out of it : Pett v. Fellows, 1 Swans. 561 : Leslie 
 
mainteu- 
 ance given 
 
 MAINTENANCE. 173 
 
 V. Leslie, LI. & G. (Sugd.) 1 ; Boddy v. Dawes, 1 Keen, 
 362 ; and see Lambert v. Parker, G. Coop. 143. 
 
 Though the provision for maintenance does not extend where 
 over the entire period of minority, it may still be given by 
 way of interest until majority : Lambert v. Parker, supra; till age less 
 Chambers v. Goldwin, 11 Ves. 1 ; Martin v. Martin, * ^^ ' 
 I Eq. 369. 
 
 The indulgence to children of the testator is extended Direction 
 even to the case where there is a direction to accumulate : j^^e not 
 Jlole v. Mole, 1 Dick. 310 ; McDermott v. Kealy, 3 Russ. considered. 
 2G4 n. ; Stretch v. Watkins, 1 Madd. 253 ; Evans v. 
 Massey, 1 Y. & J. 196 ; unless the accumulations are 
 given to another person: Re George, 5 Ch. D. 837. 
 
 Even prior to Lord Cranworth's Act trustees were Where 
 allowed sums paid out of the interest on a legacy given to may allovr 
 the child, if his father was unable to maintain him, without i°a">t«?- 
 
 ' . . auce witu- 
 
 the consent of the remaindermen, provided the case was out power, 
 one in which the Court would have given maintenance : 
 Sisson V. Shaw, 9 Ves. 288 ; Maberly v. Turton, 14 Ves. 
 499 ; Prince v. Hine, 26 Bea. 634. 
 
 A discretion in trustees to apply maintenance, notwith- Discretion 
 
 standing the father's ability to maintain his children, will g^^'* " 
 
 not be controlled by the Court, as they may pay it to the father's 
 
 father : Brophy v. Bellamy, 8 Ch. 798. - ^'''^''^• 
 
 But where the father alleges himself to be unable to InquiT as 
 
 , . , 1 1 /-w , T J • • to ability ; 
 
 support his child, the Court directs an inquiry as to 
 his ability : Thompson v. Griffin, Cr. & Ph. 317. 
 
 And where trustees have a mere power of maintenance "^tere a 
 
 "DOWGr IS 
 
 under a settlement, the father of the children cannot given ; 
 compel them to exercise it by payment to him or other- 
 wise : Ihid. ; Ransome v. Burgess, 3 Eq. 780. 
 
 But if there is a trust for maintenance in a marriage ^herea 
 settlement it is held that the father contracted that consti- 
 it should be exercised, and that it must be performed *'^^^ 
 without regard to his ability : Mundy v. Howe, 4 B. C. 
 C. 224 ; Meacher v. Young, 2 M. & K. 490 ; Stocken 
 V. Stocken, 4 Sim. 152 ; 4 M. & Cr. 95 ; Ransome 
 V. Burgess, 3 Eq. 780 ; secus in the case of a purely 
 
174 
 
 MAINTENANCE. 
 
 Extent of 
 inquiry. 
 
 After 
 
 removal 
 
 from 
 
 father's 
 
 custody. 
 
 Widow's 
 ability. 
 
 Exercise 
 of dis- 
 cretionary 
 power. 
 
 After pro- 
 
 voluntary settlement: Re Kerrison, 12 Eq. 422 ; and see 
 Joyce V. Gottrell, 12 Eq. 566, 569. 
 
 In cases where the claim for maintenance is grounded 
 on the father's inability, it is unnecessary to show any- 
 thing like insolvency, but the order will be made on its 
 being shown that he is unable to bring up his children 
 and give them such an education as their position and 
 fortune require : Buclcworih v. Buckworth, 1 Cox, 80 ; 
 Jervoise v. Silk, G. Coop. 52. For the form of inquiry see 
 Seton, p. 710. 
 
 When the Court has removed the children from tlie 
 custody of the father, it does not resort to his property for 
 their maintenance : Wellesley v. Beaufort, 2 Russ. 29. 
 
 It seems that a father is not entitled as a matter of 
 right to past maintenance : Hill v. Chapman, 2 B. C. C. 
 231; but see Maberly v. Turton, 14 Ves. 500. The Court 
 ■will, however, allow past maintenance under circumstances 
 showing that the infants would be benefited by such 
 allowance : Maberly v. Turton, 14 Ves. 499 ; Davey v. 
 Ward, 7 Ch. D. 762. 
 
 A reference as to the ability to maintain the children is 
 dispensed with on making an allowance to the mother 
 during widowhood : Exp. Petre, 7 Ves. 403 ; Hodgena v. 
 Hodgens, 4 CI. & F. 323 ; Douglas v. Andrews, 12 Bea. 
 310. 
 
 Or after a second marriage : BiUingsley v. Critchet, 1 
 B. C. C. 268. 
 
 As to the right of the mother to be recouped past 
 maintenance, see Kottley v. Palmer, 11 Jur. N. S. 968; 
 Joyce V. Gottrell, 12 Eq. 569. 
 
 A discretion in trustees to apply funds for maintenance 
 will not be interfered with by the Court so long as it is 
 exercised according to a sound and honest judgment, 
 which fact the Court will determine in an administration 
 suit, and will possibly require the trustee to exercise the 
 discretion under the view of the Court : Costabadie v. 
 Gostabadie, 6 Ha. 414; Da/uey v. Ward, 7 Ch. D. 754. 
 
 But the discretion is not gone by the institution of an 
 
MAINTENANCE. 
 
 175 
 
 action even by the trustees themselves : Sillibourne v. 
 Newport, 1 K. & J. 602. 
 
 Payment of the fund into Court under the Trustee 
 Relief Act is a renunciation by the trustees of their power : 
 Re Coe,A K. & J. 203. 
 
 And payments made by them after action brought may 
 be allowed to them upon clear evidence that the discretion 
 was exercised bond fide: Slllibour'ne v. Newpo^'t, supra; 
 Talbot v. Marshfield, 4 Eq. 661. 
 
 But the expense of proving the payments to be proper 
 will have to be borne by the trustees in any event : Talbot 
 v. Marsh^eld, supra. 
 
 The High Court will not interfere with the action of a 
 Court of co-ordinate jurisdiction (e.g., the Palatine Court) 
 in the exercise of its discretion in allowing maintenance : 
 Re Alison, 8 Ch. D. 1. 
 
 An implied trust arising from a gift to a widow for the 
 support of herself and her children is limited to such 
 children as require support : Carr v. Living, 28 Bea. 647. 
 
 And a daughter living with her mother was held to be 
 entitled though adult : Carr v. Living, 30 Bea. 474 ; Scott 
 V. Key, 35 Bea. 291. 
 
 Under such a trust sons may also be in a position to 
 requii'e maintenance though adult: Berry v. Briant, 2 
 Dr. &Sm. 1. 
 
 As to the maintenance of persons of weak mind, see 
 Buncombe v. Nelson, 9 Bea. 211. 
 
 The state and condition of the family must regulate the 
 amount of maintenance to be allowed : Heysham v. Hey- 
 sham, 1 Cox, 179 ; Allen v. Coster, 1 Bea. 202. 
 
 And the allowance may be increased to enable the 
 children to support their parents : Allen v. Coster, supra. 
 
 A discretion to apply income for " maintenance or sup- 
 port " extends to expenses of education : Re Breeds, 1 Ch. 
 D. 228. 
 
 Whether in cases not coming within Lord Cran worth's 
 Act, and without the usual power for that purpose, trustees 
 are justified in resorting to income which has been accu- 
 
 ceedings 
 begun. 
 
 Payment 
 into Court. 
 
 Costs. 
 
 Control 
 over oiher 
 Courts. 
 
 Widow's 
 implied 
 trust to 
 maintain 
 self and 
 children. 
 
 Daughter 
 living with 
 mother. 
 Adult sons. 
 
 Non 
 compos. 
 
 Amount 
 allowed. 
 
 Discretion 
 to increase. 
 
 Power to 
 apply past 
 income. 
 
176 
 
 MAINTENANCE, 
 
 Mode of 
 obtaining 
 opinion of 
 Court. 
 
 Account of 
 paH main- 
 tenance. 
 
 Not by 
 person -who 
 from kind- 
 ness main- 
 tained 
 children. 
 Mainten- 
 ance out of 
 capital by 
 Court ; 
 
 by trustees. 
 
 Inquiry. 
 
 Charge on 
 land for 
 past main- 
 tenance. 
 
 On infant's 
 reversion. 
 
 Where two 
 trusts ap- 
 plicable 
 
 mulated, for maintenance in future years : see Ediuards v. 
 Grove, 2 D. F. & J. 221. 
 
 Questions as to the duty of trustees with reference to 
 maintenance may be submitted to the Court upon an 
 advice petition under 22 & 23 "Vict. c. 35, s. 30, see ante, 
 p. 109. 
 
 So much only as has been expended is allowed in taking 
 an account of past maintenance, though that may be less 
 than the income of the child's fortune : Bruin v. Knott, 1 
 Ph. 572. 
 
 And maintenance by a stranger from feelings of kind- 
 ness is not recoverable : Grove v. Price, 26 Bea. 107 ; 
 Worthington v. McCraer, 23 Bea. 83 ; and see Joyce v. 
 Cottrell, 12 Eq. 569. 
 
 The Court will, in a proper case, where the fund is a 
 small one, order payment out of capital of sums which the 
 income applicable to maintenance is insufficient to bear : 
 Barlow v. Grant, 1 Vern. 254 ; Franklin v. Green, 2 
 Vern. 136 ; Exp. Chambers, 1 R & M. 577 ; Bridge v. 
 Brown, 2 Y. & C. C. C. 181 ; Davies v. Bavies, 2 D. M. & 
 G. 53; Nottley v. Palmer, 11 Jur. N. S. 968. 
 
 But trustees should not so apply capital without the 
 sanction of the Court : Davies v. Austen, 1 Ves. Jun. 
 247 ; Walker v. Wetherell, 6 Ves. 473 ; cases in n. (1) to 
 Barlow v. Grant, sup^a. 
 
 The Court may, however, in the absence of opposition, 
 sanction the outlay, with an inquiry as to its application : 
 Prince v. Hine, 26 Bea. 634 ; Robison v. Killey, 30 
 Bea. 520. 
 
 The Court has, without action, raised sums due for past 
 maintenance by means of a charge on an infant's fee 
 simple : Re Howarth, 8 Ch. 415 ; Re Allen, cited Ibid., 
 p. 417, n. (5). 
 
 Also upon an infant's reversionary property, coupled 
 with a life insurance by way of collateral security : De Witte 
 V. Palin, 14 Eq. 251. 
 
 An infant entitled to maintenance out of two different 
 funds should be supported out of the fund which it is 
 
MAINTENANCE. .177 
 
 most for his benefit to apply for the purpose : Foljambe v. *" main- 
 Willoughby, 2 S. & S. 169 ; Martin v. Martin, 1 Eq. 369 ; *'™""'' 
 Lucas V. King, 11 W. E. 818 ; and the same principle is 
 followed in the case of lunatics : Methold v. Turner, 4 De 
 G. & Sm. 249 ; Re Ashley, 1 R. & M. 371 ; Gisborne v. 
 Gisborne, 2 App. Ca. 300. 
 
 Thus if the infant have a defeasible interest and an Defeasible 
 absolute one, maintenance should be provided out of the lutehi-^" 
 former : Bruin v. Knott, 1 Ph. 575. tciests. 
 
 And if he have been maintained out of one fund, whereas Recouping 
 he should have been maintained out of another, he is *"■"' , 
 
 wrongly 
 
 entitled to be recouped out of the past income of the latter chosen. 
 fund : Furley v. Hyder, 41 L. J. Ch. 583 ; and see Lucas 
 V. King, supra. 
 
 But if a discretion is given to pay maintenance out of Discretion 
 either of the two funds, the Court will not interfere with ^f^^d""^ 
 the exercise of that discretion : Gisborne v. Gisborne, 2 
 App. Ca. 300. 
 
 Children who have been maintained under a trust for Trustees 
 that purpose cannot obtain an account of the income so ^'^"'^ °°' 
 
 ^ ■*■ _ ^ account as 
 
 applied, in the absence of special circumstances, or of an to applica- 
 allegation that they have not been properly maintained : ^^^^te- 
 Hora V. Hora, 33 Bea. 88 ; and see Hadow v. Hadow, 9 nance- 
 Sim. 438 ; Bro^Jjne v. Paull, 1 Sim. N. S. 92; Jodrell v. "'™°-''- 
 Jodrell, 14 Bea. 397. 
 
 A discretionary trust for the maintenance of a person Mainto- 
 during his life will enure to the benefit of his trustee .in nfe-tenant 
 bankruptcy, unless there is a gift over on bankruptcy : ^^^"^ ''a"''- 
 Snowdon v. Bales, 6 Sim. 524 ; Piercy v. Roberts, 1 M. 
 & K. 4 ; Younghusband v. Gisborne, 1 Coll. 401 ; Re Coe, 
 4 K. & J. 199. 
 
 Where there is a discretionary trust for the maintenance 
 of the bankrupt, his wife and children, the bankruptcy 
 trustee has no title : Twopeny v. Peyton, 10 Sim. 487 ; 
 Godden v. Crowh,urst, ibid. 642 ; but see as to these cases, 
 Davidson Free, Vol. 3, Pt. I., p. 125 et seq. 
 
 But if this discretion is vested in the trustees after the 
 bankruptcy of the husband, the family will be entitled to 
 
178 
 
 ADVANCEMENT. 
 
 such mainteuance as may be determined upon an inquiiy, 
 the remainder going to the creditors : Pa/je v. Way, 3 Bea. 
 20 ; Kearsley v. Woodcock, 3 Hare, 185 ; Wallace v. 
 Anderson, 16 Bea. 533 ; but see Rippon v. Norton, 2 
 Bea. 63, in which the family and the creditors were held 
 entitled in equal shares. 
 
 But the Court will not interfere with an alternative 
 discretion to provide either for the bankrupt or his family : 
 Lord V. Bunn, 2 Y. & C. C. C. 98 ; Holmes v. Penney, 3 
 K. & J. 90. 
 
 Trustees 
 having no 
 power 
 should 
 apply to 
 Court. 
 
 Where 
 allowed, 
 though no 
 Ijower. 
 
 Out of 
 
 contingent 
 
 iutercsts. 
 
 Power 
 ceasing at 
 majority. 
 
 Advance- 
 ment to 
 adults. 
 
 II. — A dvancement. 
 
 Where no trust for advancement is reposed in the 
 trustees, they should not apply any capital or other sums 
 for that purpose without the sanction of the Court, which 
 may be readily obtained upon a petition for the opinion 
 of the Court : see p. 108 as to Advice Petitions. 
 
 But where they have so applied funds they will be 
 allowed them, if the case was one in which the Court 
 would have made an order for the purpose : FranHin v. 
 Green, 2 Vern. 137 ; and see Lee v. Brown, 4 Ves. 362. 
 
 And out of interests upon contingencies which are equal, 
 advancement out of capital may be given with the proper 
 consents under the same conditions as maintenance is 
 given in similar circumstances : see ante, p. 176. 
 
 A power to advance to a child, "being a minor," is 
 strictly construed and ceases at majority : Clarice v. Hogg, 
 19 W. R. 617. 
 
 But a general direction will include advancement to an 
 adult at any age before the funds fall into possession : 
 Eoper-Curzon v. Roper-Curzon, 11 Eq. 452 ; Lowther 
 V. BentincJc, 19 Eq. 166. 
 
 Thus the Court has allowed advancement for the pay- 
 ment of the debts of a man who had been married for 30 
 years, the fund being applicable' for certain purposes, " or 
 otherwise for his benefit " : Lowther v. Bentinck, 19 Eq. 
 166. 
 
 And capital has been advanced to a married man to 
 
ADVANCEMENT. I79 
 
 maintain him, pending his establishment in a profession, 
 a settlement of it being at the same time ordered: Roper- 
 Gurzon v. Roper-Gurzon, 11 Eq. 452. " 
 
 And a husband has been advanced out of his wife's 
 fund, which was subject to a power of advancement in 
 i'avour of the wife, to establish her in trade, or otherwise 
 for her preferment or advancement, to enable him to 
 enter a beneficial partnership, upon an insurance being 
 effected in the names of two trustees, the policy to be 
 held upon the trusts of the legacy, the husband's bond 
 being taken to secure the premiums : Phillips v. Phillips, 
 Kay, 40 ; or, under special circumstances, on the husband's 
 personal security alone : Re Kershaiv, 6 Eq. 322. 
 
 A married woman has been set up in a farming busi- 
 ness, the husband covenanting that the business should 
 enure to her separate use : Talbot v. Marshfield, 3 Ch. 
 622. 
 
 But her money cannot be advanced for the purpose of 
 paying her husband's debts: Ibid. 
 
 Though the parent is not to be benefited at the ex- Assisting 
 pense of the child by a colourable advancement, he may advance-^ 
 in a proper case, as where he intends to emigrate with mentof 
 his family, and such a course seems beneficial to the child, 
 obtain payment of advancement funds : Walsh v. Walsh, 
 1 Dr. 64 ; Re Long, 38 L. J. Ch. 125 ; and see JExp. 
 Hays, 3 De G. & Sm. 485, 488. 
 
 Or to prevent his insolvency, where the debt has been To prevent 
 incuiTed by him for the maintenance of his children : insolvency 
 Pavey v. Ward, 7 Ch. D. 754. 
 
 Part of the trust funds have been allowed to be paid to Todaughter 
 a daughter on her marriage, under a power enabling the rSge.^" 
 trustees to raise money to place her in business, where the 
 outlay appeared to be for her advancement in life : Lloyd 
 V. Goclcer, 27 Bea. 645. 
 
 And arrears of rent have been cleared for a beneficiary. To save 
 though without an adequate power : Exp. McKey, 1 B. ^"^"^^ ^' 
 & B. 405. 
 
 Where an additional sum is required for education, it Education. 
 
 h' 2 
 
180 
 
 ADVANCEMENT. 
 
 "Advance'' 
 under 
 Statute of 
 Distribu- 
 tions. 
 
 Failure of 
 object of 
 advance- 
 ment. 
 
 Death of 
 child. 
 
 may be provided under a power of advancement : Be 
 Breeds, 1 Ch. D. 228. 
 
 As to what is' considered as an " advance " within the 
 meaning of the Statute of Distributions (22 & 23 Car. 2, 
 c. 10, s. 5), see Auster v. Powell, 1 D. J. & Sm. 99, 106 ; 
 Boyd V. Boyd, 4> Eq. 305 ; Taylor v. Taylor, 20 Eq. 155 ; 
 Hatfeild v. Minet, 8 Oh. D. 136. 
 
 If the purpose for which the gift is made be specified, 
 but fails either by the impossibility of effecting it, by the 
 neglect of the trustee, or by the death of the beneficiary, 
 the advancement fund belongs to the beneficiary or his 
 representatives : Barlow v. Grant, 1 Vern. 255 ; Barton 
 V. Goohe, 5 Ves. 461 ; Leche v. Kilmorey, T. & R. 207 ; 
 Re Sanderson, 3 K. & J. 503 ; Palmer v. Flower, 1 3 Eq. 
 250. 
 
 Thus, if the child is to be advanced by being appren- 
 ticed, and dies before it can be done, the advancement 
 fund goes to his representatives : Barlow v. Grant, ] Vern- 
 
 Omission 
 to advance. 
 
 Purpose 
 
 becoming 
 
 impossible. 
 
 Legacy for 
 education 
 is xJayable 
 imme- 
 diately. 
 
 And if he is old enough, but has not been apprenticed, 
 he takes the fund himself : Barton v. Cooke, 5 Ves. 461. 
 
 Where, under a will, the money had been raised to buy 
 a commission, but purchase in the army was in the 
 meantime abolished, the money was held to belong to the 
 person intended to be advanced : Palmer v. Flower, 13 
 Eq. 250 ; or where he was prevented by ill health from 
 entering the army : Leche v. Kilmorey, T. & R. 207. 
 
 But where the trust arose in a separation deed by ex- 
 press words directing the purchase of a commission, and 
 failed for the above reason, the fund was not applied at 
 all : Re Ward, 7 Ch. 729. 
 
 Where money is given on condition that "an advan- 
 tageous establishment " for the legatee is found, the gift 
 fails if the trustee does not find such an establishment : 
 Pink V. Be Thuisey, 2 Madd. 157. 
 
 A legacy given upon trust to apply a sum for education 
 must be taken to be a general legacy, and payable imme- 
 diately : Noel V. Jones, IG Sim, 311. 
 
ADVANCEMENT, 181 
 
 If the concurrence of both trustees is required for the One trus- 
 
 exercise of a discretion to advance, one trustee must not without" 
 
 act alone, and if he does, he will not be allowed the ad- *^^ °*<=''- 
 vances : Palmer v. Wakefield, 3 Bea. 227. 
 
 But such a discretion vests in the survivor : Livesey v. Power sur- 
 
 Harding, Taml. 463. "'"^'• 
 
 Where the trustees have not exercised the power, the Discretion 
 
 Coixrt will undertake it : Kilvington v. Gray, 10 Sim. ^^d^'^" 
 
 293 : and see Foley v. Parry, 5 Sim. 138, 2 M. & K. 138. i^dertaken 
 
 . , . . , ^ . ^' .„ , by Court. 
 
 And an inquiry as to the necessity ot the case will be . 
 
 , . inquiry. 
 
 ordered: Lewis v. Leiuis, 1 Cox, 162; Robinson v. 
 Gleator, 15 Ves. 526 ; Be Sanderson, 3 K. & J. 497. 
 
 If a sum raised for advancement be applied in a Recovery 
 
 manner not strictly for the infant's benefit, it may be ° i^^^^ 
 
 recovered back from the trustee : Simpson v. Brown, funds. 
 13 W. R. 312. 
 
 If a fixed sum for advancement be mentioned, it seems Where too 
 
 that, if more be advanced, the excess may be made up out ^^^^^ 
 of income not required for maintenance : Therry v. Hen- 
 derson, 15 L. T. 452. 
 
CHAPTER XXIV. 
 
 OF PURCHASES OF THE TRUST ESTATE BY THE TRUSTEE. 
 
 Trustees THERE is DO rule of the Court that trustees may not 
 
 tuythe purchase from their cestui que trust; the rule is that 
 
 trust estate trustees may not purchase from themselves. Therefore, 
 
 trust is at SO long as the relation of trustee and cestui que trust is 
 
 *"/°h' ^'^^ finally put an end to by a new contract severing that 
 
 transac- relation, such a purchase is not allowed to stand. More- 
 
 and Ten'"^ over, if the trustee have used knowledge acquired in, or at 
 
 the expense of, the trust, and have not disclosed it to the 
 
 cestui que trust, the purchase is voidable at the option of 
 
 the latter : Fox v. Macjcreth, 2 B. C. C. 400, 2 Cox, 320, 
 
 4 B. P. C. 258 ; Uxp. Lacey, 6 Yes. 625 ; JExp. Bennett, 
 
 10 Ves. 394 ; Hamilton v. Wright, 9 CI. & F. Ill ; Abei'- 
 
 deen Railway Go. v. Blahie, 1 Macq. 461 ; Pooley v. 
 
 Quilter, 2 D. & J. 327, 351 ; and see McPherson v. Watt, 
 
 3 App. Ca. 254. 
 
 Purchase at A trustee gains no better title by having purchased at 
 
 an auction. ^^ auction : Sanderson v. Walker, 13 Ves. 602. 
 
 Bidding by Or by having bid through an agent for him: Whelpdale 
 
 agent. ^^ Cookson, 1 Ves. Sen. 9 ; Sanderson v. Walker, supra. 
 
 Purchase Nor Can an agent of a trustee buy the trust estate by 
 
 y agent, pjiyate contract : Whitcomh_ v. Minchin, 5 Madd. 91 ; 
 
 Woodhouse v. Meredith, 1 J. & W. 204. 
 Trustee Nor can a trustee purchase as agent for a stranger, 
 
 agJnt fo? unless the cestui que trust has full knowledge of, and 
 stranger. approves the transaction : Coles v. Trecothick, 9 Ves. 234 ; 
 
 Exp. Bennett, 10 Ves. 381. 
 benefidaii ^^^ where a trustee for sale procured the purchase of 
 interested. 
 
TRUSTEES PURCHASING TRUST ESTATE. 183 
 
 the property by the trustees of his marriage settlement, 
 tinder which he took a contingent reversionary interest, 
 the purchase was upheld as not coming within the rule, 
 all things having been done in the fairest manner : HicJcley 
 V. Hickley, 2 Ch. D. 190. 
 
 A purchase by a trustee from his co-trustee is within Purchase 
 the rule : Hall v. Noyes, 3 Ves. 748, cit. ; and see Hodg- ^^^^4°; 
 Jcinson v. National Live Stock Co., 4 D. & J. 422. 
 
 A collusive purchase from trustees makes the purchasers Collusive 
 trustees for the original cestuis que trust; and if, as ^-omtnL- 
 ostensible owners, the purchasers obtain a valuable right tees. 
 in respect of the land so bought, they must surrender that 
 right for the benefit of those cestuis que trust : Aberdeen 
 Town Council v. Aberdeen University, 2 App. Ca. 544. 
 
 The character of trustee cannot be thrown off merely Trustee 
 for the purpose of purchasing the estate : Spring v. Pride, °f^"f jf^^j 
 4 D. J. & Sm. 395 ; where the trustee was colourably dis- in order to 
 charged by deed of even date with the conveyance to the "^' 
 purchaser. 
 
 Nor will the device of taking the conveyance to his Conveyance 
 children avail : Gregory v. Gregory, G. Coop. 201 ; see '^ji^^ ."* 
 Huguenin v. Baseley, 14 Ves. 289. 
 
 Nor in the name of a trustee for himself : Barton v. of a tms- 
 Hassard, 3 Dr. & War. 461 ; Randall v. Errington, 10 *®®' 
 Ves. 428 ; Sanderson v. Walker, 13 Ves. 601. 
 
 But if a trustee sells bond fide, and afterwards himself Purchase 
 purchases from the purchaser, the rule does not apply : jj^g^gale" 
 Baker v. Feck, 9 W. R. 472 ; and see Parlcer v. McKenna, 
 10 Ch. 125. 
 
 Even in the case of a re-purchase by a trustee for ere- by trustee 
 ditors, the transaction, being one to wbich all parties tors!™ '' 
 interested consented, was upheld : Dover v. Buck, 5 Gif. 57. 
 
 A disclaiming trustee who has never acted is not within Disclaim- 
 the rule, even though he have not disclaimed by deed : may^buT^ 
 Stacey v. Elph, 1 M. & K. 195. 
 
 Nor is a trustee to preserve contingent remainders and Trustee 
 for no other purpose: Parkes v. White, 11 Ves. 226; serve!" 
 Pooley V. Quilter, 4 Dr, 189, 
 
184. 
 
 TRUSTEES PURCHASING TRUST ESTATE. 
 
 Bare trus- 
 tee. 
 
 Trustee 
 purchasing 
 reyersion- 
 ary in- 
 terest. 
 
 Transac- 
 tions not 
 relating to 
 trust. 
 
 Transac- 
 tion when 
 trust closed 
 must be 
 fair. 
 
 Onus where 
 beneficiary 
 suggests 
 sale. 
 
 Relation to 
 be severed 
 by bene- 
 ficiary 
 himself. 
 
 Feme 
 
 covert must 
 acknow- 
 
 Purchase 
 from per- 
 sons under 
 disability 
 with leave 
 of Court. 
 
 Liberty to 
 trustee to 
 bid. 
 
 Nor is a bare trustee : Pooley. v. Quilter, 4 Dr. supra. 
 
 Where a trustee purchases from his cestui que trust 
 a reversionary interest which he is himself liable to 
 pay, the purchase will perhaps be allowed to stand, if it 
 can be shown that it was for the best advantage of the 
 cestui que trust : Benton v. Donner, 23 Bea. 285, 290 ; 
 and see Spring v. Pride, 4 D. J. & Sm. 395, 406. 
 
 The trusteeship of an estate does not prevent transac- 
 tions between the trustee and cestui que trust foreign to 
 the trust : Knight y. MarjoribanJcs, 2 McN. & G. 10. 
 
 In the case of a purchase of the trust estate, though 
 the character of trustee may be at an end, the transac- 
 tion must be marked by the strictest honesty and open 
 dealing : Gibson v. Jeyes, 6 Ves. 266 ; Farhes v. White, 
 11 Ves. 226 ; and see Tate v. Williamson, 2 Ch. 55. 
 
 But the onus of proving fairness is removed from the 
 trustee where the cestui que trust, being sui juris, sug- 
 gests the sale to him and threatens to force it upon him, 
 the trustee being an unwilling purchaser : Luff v. Lord 
 34 Bea. 220. 
 
 In order to sever the fiduciary relation the cestui que 
 trust himself, and not his solicitor for him, must make the 
 new contract for that purpose : Downes v. GrazebrooJc, 3 
 Mer. 209. 
 
 Married women selling their land to their trustees must 
 acknowledge the deed ; for, if not, their interest can be 
 got back if they survive their husbands : Franks v. 
 Bollans, 3 Ch. 717. 
 
 If the cestui que trust be under any disability to con- 
 tract, the trustee can buy the trust estate only with the 
 leave of the Court ; and he must show that he is willing 
 to give an enhanced price : Campbell v. Walker, 5 Ves. 
 682 ; 13 Ves. 601. 
 
 A trustee has been allowed to purchase at the reserved 
 price after a failure to sell by auction, it appearing that 
 such a course was beneficial to all parties : Clarke v. 
 Siuuile, 2 Ed. 134 ; Farmer v. Dean, 32 Bea. 327. 
 
 But liberty to bid at a sale by the Court is not given 
 
TRUSTEES PURCHASING TRUST ESTATE. 183 
 
 to a trustee unless all parties consent, and all other 
 chances of procuring biddings are exhausted : Tennant 
 V. Trenchard, 4i Ch. 547 ; and see Exp. James, 8 Ves. 
 337. 
 
 Biddings will be opened where fraud or improper con- Biddings 
 duct has been proved : Belves v. Delves, 20 Eq. 77, 82. "^^f^ ^"^ 
 And this will not be prevented by the operation of the fraud. 
 Sale of Land by Auction Act, 1867 (30 & 31 Vict. c. 48, 
 s. 7) : Gv^est v. Smythe, 5 Ch. 551. 
 
 Executors, executors de leur tort, and administra- Purctase 
 tors are within the general rule : Killick v. Flexney, t^r^'^&c' 
 4 B. C. C. 161 ; Watson v. Toone, 6 Madd. 153 ; ""' 
 Mulvany v. Billon, 1 B. & B. 409 ; Baker v. Carter, 1 
 Y. & C. 250 ; Baker v. Read, 18 Bea. 398, S. C. 3 W. E. 
 118 ; and see Smedley v. Varley, 23 Bea. 358 ; Wedder- 
 burn V. Wedderburn, 4 M. & Cr. 41 ; Watson v. Toone, 
 6 Madd. 153. 
 
 But an executor cannot buy a legacy from a legatee. Purchase of 
 unless he can prove the fairness of the transaction, even g^Sto? 
 if such legatee be his co-executor : Re Biel, 16 Eq. 677. 
 
 But the case is not the same where the validity of the 
 legatee's title is in litigation and unmarketable, in 
 which case the executor, if he have fully informed the 
 legatee of his rights, may purchase : Luff v. Lord, 34 
 Bea. 220. 
 
 Leases to Trustees, &c. 
 
 A trustee must not lease the trust estate to himself; Trustee 
 and even if the testator permits it by express pi'o vision, a 1°"^*"°' 
 trustee taking advantage of the provision should be himself, 
 removed : Passingham v. Sherhorn, 9 Bea. 424 ; and 
 see Attorney-General v. Clarendon, 17 Ves. 500 ; Attor- 
 ney-General V. Bixie, 13 Ves. 519. 
 
 It seems that a lease by a trustee to a relation is Lease to 
 objectionable : Ferraby v. Hobson, 2 Ph. 255 ; Exp. [^^g*/™ "^ 
 Skinner, 2 Mer. 457. 
 
 An agent may take a lease of his principal's land, and Ageut 
 keep it, if he has imparted all necessary information to his leas" of 
 
186 
 
 LEASES TO TRUSTEES — PURCHASES BY MORTGAGEES. 
 
 principal's 
 land. 
 
 Special 
 agency for 
 letting. 
 
 Lease to 
 tenant for 
 Iffe. 
 
 Applica- 
 tion of 
 mle to 
 mortga- 
 
 ■with power 
 of sale. 
 
 Annuitant 
 "with power 
 of sale. 
 
 Mortgagee 
 buying 
 equity of 
 redemp- 
 tion. 
 Where 
 mortgagor 
 distressed. 
 
 Second 
 mortgagee 
 buying 
 from first. 
 
 Second 
 
 lessor : Selsey v. Rhoades, 1 Bli. N. R. 1 ; Molony v. 
 Kernan, 2 Dr. & War. 31 ; Dunne v. English, 18 
 Eq. 534. 
 
 But if an agent, appointed for the purpose of letting 
 only, takes a lease to himself, he will be a trustee of it for 
 his principal : Taylor v. Salmon, 4 M. & Cr. 134 ; and 
 see ante. Chap. XI., Constructive Trusts, p. 72. 
 
 A tenant for life, with power of leasing, may obtain a 
 lease in trust for himself: Bevan v. Habgood, 1 J. & 
 H. 222. 
 
 Mortgagees. 
 
 The rule as to purchases by trustees does not apply with 
 equal stringency to every case between mortgagor and 
 mortgagee : Sugd. V. & P. 689 ; Webb v. Borke, 2 Sch. & 
 L. 673 ; Exp. Marsh, 1 Madd. 148 ; Bobson v. Land, 8 
 Ha. 221 ; RushbrooJc v. Lawrence, 8 Eq. 25, 5 Ch. 3. 
 
 But a mortgagee with a power of sale is unable to pur- 
 chase : Downes v. GrazebrooJc, 3 Mer. 200 ; Robertson v. 
 JSTorris, 1 Gif. 421; 4 Jur. N. S. 155. 
 
 And an annuitant with power of sale is in the same 
 position : Re Bloye, 1 Macn. & G. 488; S. C. in D. P., nom. 
 Lewis V. Hillman, 3 H. L. C. 607. 
 
 But a mortgagee may buy the equity of the redemption : 
 Knight v. Marjoribanks, 2 Macn. & G. 10. 
 
 However, if the mortgagor be in circumstances of 
 distress, or pressure is exerted, the sale may be im- 
 peached: Ford V. Olden, 3 Eq. 463; Frees v. Coke, 6 
 Ch. 645. 
 
 And a solicitor, who is a mortgagee, attempting to buy 
 the equity of redemption from his client, was allowed only 
 a charge for the amount paid, without power of sale : 
 Fearson v. Benson, 28 Bea. 598. 
 
 A second mortgagee may, in the absence of special 
 circumstances, buy under an exercise of the first mort- 
 gagee's power of sale : Shaw v. Bunny, 2 D. J. & Sm. 
 468 ; Kirkwood v. Thompson, ibid. 613. 
 
 The fact that a second mortgagee is a trustee for sale 
 
PURCHASES BY AGENTS. 187 
 
 does not prevent him from purchasing: Ibid. ; Locking v. mortgagee 
 Parker, 8 Ch. 35. Parkinson v. Hanbury, 2 D, J. & Sm. gale. 
 450, on this point, is not followed. 
 
 With regard to opening a foreclosure, see Prees v. Coke, Opening 
 6 Ch. 645, and cases there cited. 
 
 Agents and others. 
 
 Agents are in a fiduciary relation to the extent that any A gent deal- 
 fraud or concealment -will vitiate any dealing on their own himself. 
 behalf while acting as such agents : Lowther v. Loivther, 
 13 Ves. 103 ; Le^vis v. Hillman, 3 H. L. C. 607, 630 ; 
 Charter v. Trevelyan, 11 CI. & F. 714, 732 ; Walsham v. 
 Stainton, 1 D. J. & Sm. 678 ; see Be Bussche v. Alt, 8 
 Ch. D. 286. 
 
 The burden is on the agent to prove that he gave Onus on 
 distinct information to his principal as to the nature of ^^.^^^ la^a, 
 his interest ; it is not enough to say that the principal was fi^^- 
 sufficiently informed to be put upon his inquiry : Lowther 
 V. Loiuther, 13 Ves. 103 ; Dunne v. English, 18 Eq. 524 ; 
 and see Murphy v. O'Shea, 2 J. & L. 422 ; Fawcett v. 
 Whitehouse, 1 R. & M. 132 ; Hichens v. Congreve, ibid. 
 150 n. ; Imperial Mercantile Credit Association v. Cole- 
 man, L. R. 6 H. L. 201 ; Kimber v. Barber, 8 Ch. 56 ; 
 Parker v. McKenna, 10 Ch. 118 ; Hay's Case, ibid. 
 593 ; McKay's Case, 2 Ch. D. 1, 
 
 Full value given must also be proved as an element of Adequacy 
 bona fides : Murphy v. O'Shea, 2 J. & L. 422 ; Lowther sideration. 
 V. Lowther, 13 Ves. 103. 
 
 The agent becomes a trustee of any undue profit Undue 
 obtained : Lees v. Nuttall, 1 R. & M. 53. ^'"'^^■ 
 
 As to an agent selling his own goods to his principal. Selling o-wn 
 see Story on Agency, p. 324 et seq. ; Benjamin on Sales, ^"i^';*",, 
 p. 172 et seq. 
 
 When the agency is terminated by a bond fide sale to a Temina- 
 stranger there is nothing to prevent a subsequent purchase ^'^ "^ 
 from the stranger by the late agent, but the transaction 
 is not free from suspicion : Parker v. McKenna, 10 
 Ch. 126. 
 
188 
 
 PURCHASES BY AGENTS AND OTHEES. 
 
 Receiver 
 buying in- 
 cumbrance. 
 
 Execution 
 creditor. 
 
 Partner. 
 
 Trustees 
 for credi- 
 tors. 
 
 Assent of 
 creditors. 
 
 Jurisdic- 
 tion in 
 bank- 
 ruptcy. 
 
 Tenant for 
 life with 
 Bower to 
 
 A receiver cannot buy up an annuity charged on the 
 estate, except subject to the same rules as other persons in 
 a fiduciary position may purchase : Eyre v. McBonnell, 15 
 Ir. Ch. R. 534, 548 ; and see Alven v. Bond, FI. & K. 
 196 ; Gary v. Gary, 2 Sch. & L. 173. 
 
 Nor can he buy a jointure charge : Boddington v. 
 Langford, 15 Ir. Ch. R. 558 n. 
 
 An execution creditor may buy his debtor^s property : 
 Stratford v. Twynam, Jac. 421 ; and see Waters v. 
 Groom, 11 C. & F. 684. 
 
 A partner may buy the share of his deceased partner, if 
 the sale be fairly and properly made : Chambers v. 
 Howell, 11 Bea. 6. 
 
 But a partner cannot purchase his bankrupt partner's 
 share without leave : Uxp. Burnell, 7 Jur. 116. 
 
 And on a sale by the Court of partnership property upon 
 a dissolution, leave to bid is given only to such part- 
 ners as have not the conduct of the sale : Wild v. 
 Milrie, 26 Bea. 506. 
 
 Trustees for creditors under deeds or in bankruptcy are 
 debarred from purchasing debts, assets, or dividends : 
 Exp. Lacey, 6 Ves. 625 ; Exp. Hughes, ibid. 617 ; Exp. 
 James, 8 Ves. 337 ; Exp. Badcock, M. & Mac. 231 ; 
 Pooleyv. Quilter, 2 D. & J. 327; Adams v. Sworder, 2 D. 
 J. & S. 44. 
 
 In order to give validity to any such transaction the 
 whole body of creditors must assent : Exp. Lacey, supra; 
 dissenting from Whelpdale v, Gookson, 1 Ves. Sen. 9 ; but 
 see Exp. Gore, 3 M. D. & D. 77; Exp. Perkes, ibid. 385; 
 Exp. Holyman, 8 Jur. 156. 
 
 In such matters the Chancery Division, though retaining 
 its powers, has refused to adjudicate, and has left the Court 
 of Bankruptcy to use its statutory jurisdiction : Stone v. 
 Thomas, 5 Ch. 219 ; Martin v. Pawning, 4 Ch. 356; but 
 see White v. Simmons, 6 Ch. 555 ; Jenney v. Bell, 2 Ch. 
 D. 547. 
 
 A tenant for life with power to consent to a sale or 
 exchange by his trustees may himself become the pur- 
 
PURCHASE3S BY SOLICITORS. 189 
 
 chaser, since he is in no fiduciary relation to the consent to 
 remainderman : Houurd v. Bucane, T. & E. 81 ; 
 Grover v. Hugell, 3 Kass. 432; Dicconson v. Talbot, 6 
 Ch. 32. 
 
 As to whether the tenant for life is in such a position as 
 that he is bound to communicate his knowledge to the 
 trustees : See Dicconson v. Talbot, supra. 
 
 Guardians probably cannot buy their wards' estate on Guardians. 
 their coming of age, though a full price be given : Sugd. V. 
 & P. 692, citing Oldin v. Samborn, 2 Atk. 15; Daiuson v. 
 Massey, 1 B. & B. 219 ; but see Grosvenor v. Sherratt, 28 
 Bea. 659. 
 
 Solicitors. 
 
 A solicitor buying from his client can never support the Purchase 
 transaction, unless he can prove that his diligence to do l^y solicitor, 
 the best for the vendor has been as great as if he was only 
 an attorney dealing for that vendor with a stranger : 
 Gibson v. Jeyes, 6 Ves. 271 ; Savery v. King, 5 H. L. C. 
 655 ; Spencer v. Topham, 22 Bea. 577 ; Benton v. 
 Bonner, 23 Bea. 285 ; Gresley v. Mousley, 4 D. & J. 78 ; 
 Morgan v. Minett, 6 Ch. D. 638 ; McPherson v. Watt, 3 
 App. Ca. 254. 
 
 But if the solicitor obtains an advantage by accidental or Accidental 
 unforeseen circumstances only, that is not to be taken as ^ ^^^se- 
 shewing that the transaction should not have taken place: 
 Montesqideu v. Sandys, 18 Ves. 302 ; Edwards v. 
 Meyrich, 2 Ha. 60. 
 
 The purchase will be set aside where the Court thinks Inadequate 
 that a better bargain for the cestui que trust or client '"^^^■ 
 ought to have been made : Holman v. Loynes, 4 D. M. 
 & G. 270 ; Gresley v. Mousley, 4 D. & J. 78 : Pisani v. 
 Attorney-General for Gibraltar, L. E. 5 P. C. 517, 538 ; 
 Spencer v. Topham, 22 Bea. 573. 
 
 The indebtedness of the client to his solicitor is also a client 
 circumstance of suspicion : Holman v. Loynes, supi'a ; ^^^^°^ *» 
 Edwards v. Meyrick, 2 Hare, 70 ; as to future costs see 
 now Solicitor's Act, 1870, 33 & 34 Vict., c. 28, s. 4. 
 
190 
 
 PURCHASES BY SOLICITORS. 
 
 Mortgage 
 to secure 
 costs. 
 Employ- 
 ment "in 
 hac re." 
 
 No separate 
 advice. 
 
 Cesser of 
 relation of 
 solicitor 
 and client. 
 
 Selling to 
 
 another 
 
 client. 
 
 Proof of 
 payment. 
 
 Gifts to 
 solicitors. 
 
 There is no impropriety in a mortgage to secure costs : 
 Johnson v. Fesemeyer, 3 D. & J. 13. 
 
 The soUcitor must be employed "in hac re" in order to 
 bring him within the rule: Montesquieu, v. Sandys, 18 
 Ves. 313 ; Edwards v. Meyrick, 2 Ha. 60 ; Jones v. Thovias, 
 
 2 Y. & C. Ex. 498. 
 
 This is explained to mean ^,hat a solicitor may deal with 
 his client where the circumstances are not such as to put 
 him under the duty of advising the client : Holman v. 
 Loynes, 4 D. M. & G. 281; and see Gibbs v. Daniel, 
 4 Gitf. 36. 
 
 And the absence of separate advice is a circumstance 
 which makes the task of the solicitor to prove fairness 
 more difficult : Gresley v. Mousley, 4 D. & J. 9G ; Pisani 
 V. Attorney-General for Gibraltar, 5 P. C. 517. 
 
 But the mere fact that the purchaser is a solicitor deal- 
 ing with a layman, without separate advice, is no ground 
 for setting aside the sale : Edwards v. Williams, 32 L. J. 
 Ch. 763. 
 
 Where the relation of solicitor and client does not, or 
 has ceased to, exist, the parties are treated as having dealt 
 at arm's length, if information obtained while acting as 
 solicitor does not give the solicitor an unfair advantage : 
 Cane v. Allen, 2 Dow. 289 ; Cutts v. Salmon, 4 D. G. & 
 Sm. "J 25 ; and see the cases cited in Holman v. Loynes, 
 supra; and in Pisani v. Attorney-General, supra; 
 Morgan v. Minett, 6 Ch. D. 638. 
 
 The onus is heavy on a solicitor selling one client's 
 property to another, to show the greatest fairness : Hesse 
 V. Briant, 6 D. M. & G. 623 ; and see Exp. Bennett, 10 
 Ves. 400. 
 
 The solicitor must prove by other evidence than the 
 mere endorsement of the receipt on the conveyance, that 
 he has paid the whole consideration : Gresley v. Mousley, 
 
 3 D. F. & J. 433. 
 
 As to gifts to solicitors, see Tomson v. Judge, 3 Dr. 
 306, and the cases collected in 2 W. & T. L. C. in note 
 to Huguenin v. Basely, p. 578. 
 
BY COUNSEL — REMEDIES OF CESTUI QUE TRUST. 191 
 
 A solicitor having the conduct of a sale by the Court, Solicitor 
 cannot buy : Otven v. Foulkes, 6 Ves. 630 n. ; Sidny v. J^^l X' 
 Ranger, 12 Sim. 118: AtJcins v. Belmege, 12 Ir. Eq. E. 1; sale. 
 Re Ronayne, 13 Ir. Oh. R. 444; Guest v. Smythe, 5 Oh, 
 ■556. 
 
 Counsel. 
 
 Barristers are subject to the rule that, unless their Purchases 
 employment has ceased, purchases of property as to y"""''^^- 
 which they have advised may be set aside ; and even 
 after that, their conduct must be perfectly fair and open : 
 Carter v. Palvter, 8 01. & F. 657 ; Pisani v. Attorney- 
 General for Gibraltar, 5 P. C. 540. 
 
 With regard to gifts to counsel, see Broun v. Kennedy, Gifts to 
 4 D. J. & Sm. 217. '=°™'"'' 
 
 Recovery of Trust E states 
 
 The Oourt assists the cestui que trust to recover the Cestui que 
 estate or its value in the following manner : — trust's re- 
 
 medy. 
 
 1. If the estate has not been resold by the trustee — Where 
 (1.) The sale may, at the option of the cestui que ^^**'^ °°' 
 
 , , ., , \ ,. -' resold. 
 
 trust, be merely set aside, and an immediate reconveyance necouvev- 
 ordered : Exp. Lacey, 6 Ves. 625 ; York Buildings Co. ance. 
 V. Mackenzie, 8 B. P. 0. 42 ; Exp. Bennett, 10 Ves. 400 ; 
 Randally. Errington, 10 Ves. 423 ; Trevelyan v. Charter, 
 9 Bea. 140. 
 
 (2.) The trustee must account for the mesne rents and Mesne 
 profits, or an occupation rent : Exp. Lacey, supra ; Exp. P™^*^- 
 James, 8 Ves. 351 ; York Buildi/ngs Co. v. Mackenzie, 
 8 B. P. 0. 70. 
 
 No interest on the rents is claimable by the cestui que No interest 
 trust: Macartney v. Blackwood, Ridg. L. & S. 602. ™ '^^"*^- 
 
 (3.) The cestui que trust must repay the price, with Eepayment 
 interest at 4 per cent. : Campbell v. Walker, 5 Ves. "* '^'''°®' 
 682 ; and see Exp. James, supra ; York Buildings Co. 
 V. Mdkchenzie, supra. 
 
 Also, sums paid for repairs and permanent improve- Sums spent 
 ments made by the trustee : Exp. Hughes, 6 Ves. 624 ; "^ repairs. 
 
192 
 
 KEMEDIES OF CESTUI QUE TEUST. 
 
 Improve- 
 ments. 
 
 Injury. 
 Kesale. 
 
 Mode of 
 resale. 
 
 In lots. 
 
 Subsisting 
 tenancies. 
 
 Deprecia- 
 tion of 
 securities. 
 
 Where es- 
 tite resold: 
 purchaser 
 with notice 
 subject to 
 equity. 
 
 Exp. James, sv/pra ; Exp. Bennett, 10 Ves. 400 ; Robin- 
 son V. Ridley, 6 Madd. 2 ; Oliver v. Court, 8 Price, 172 ; 
 York Buildings Go. v. Mackenzie, supra; Davey v. 
 Burrant, 1 D. & J. 53-5. 
 
 These allowances are made for repairs, but none will be 
 made for improvements in a case of gross fraud by the 
 trustee in purchasing the property : Baugh v. Price, 1 
 Wils. 320 ; Kenney v. Brown, 3 Ridg. 518. 
 
 The purchase-money to be repaid must be diminished if 
 the trustee have injured the estate : Exp. Bennett, supiiu. 
 
 2. If the cestui que trust prefer it, he may have the 
 estate resold: Fox v. Mackreth, supra; Exp. James, 
 supra; Campbell v. Walker, supra; Exp. Hughes, 6 Ves. 
 625 ; Exp. Bennett, supra. 
 
 For this purpose the Court orders the property to be 
 put up at the sum given by the trustee, plus the value of 
 any improvements : but if no better price can be obtained, 
 the original purchase will stand : Lister v. Lister, 6 Ves. 
 633 ; Exp. Lacey, supra ; Exp. Hughes, supra ; Exp. 
 James, supra; Exp. Bennett, 10 Ves. 400 ; Robinson v. 
 Ridley, 6 Madd. 2 ; Williamson Y.Seaber, 3 Y. & C. 717 ; 
 Stepney v. Biddulpih, 13 W. R. 576. 
 
 Cestuis que trust cannot require a sale in lots if the 
 trustee have purchased the estate en bloc : Exp. James, 
 supra. 
 
 The interests of lessees are allowed to remain unaffected 
 by the reconveyance : York Buildings Co. v. Mackenzie, 
 supra. 
 
 If the price have been paid into Court, and invested, 
 the trustee does not gain or lose by fluctuations in the 
 value of the investment : Exp. James, 8 Ves. 351. 
 
 3. If the estate has been resold to a purchaser with 
 notice of the actual transaction, and that it was impeach- 
 able by the cestui que trust, he is subject to all the same 
 consequences as the trustee himself would have incurred : 
 Attorney-General v. Dudley, G. Coop. 146 ; Dunbar v. 
 Tredennick, 2 B. & B. 304 ; and see the notes to Basset 
 V. Nosworthy, 2 W. & T. L. C. p. 1. 
 
REMEDIES OP CESTUI QUE TRUST — CONFIRMATION. 193 
 
 The defendant in a suit for specific performance know- Discovery 
 ing the plaintiffs to he trustees, is not entitled under the ^trusr^'^ 
 new Orders (Order XXXI. r. 5) to interrogate as to the 
 nature of such trusts, in order to show that the purchase 
 was a breach of trust : Mansfield v. Ohilderhouse, 4 Oh. 
 D. 82. 
 
 4. If the estate have been resold to a purchaser without Where 
 notice, the trustee is ordered to pay over the profit he purchaser 
 made on the resale, with interest at 4 per cent.. : Hall v. ■"'ithout 
 Hallet, 1 Cox, 134 ; and see Exp. Reynolds, 5 Ves. 707 ; 
 Randall v. Errington, 10 Ves. 423. 
 
 In these cases it is not in the option of the cestui que Eepiace- 
 trust to require any similar property obtainable to be pur- OToperty 
 chased to replace the property sold, e.g., where the trustee 
 had bought shares in a company : Hall v. Hallet, supra. 
 
 The trustee, except in a case where no blame can attach Costs. 
 to his conduct, must pay the costs of the action : Sander- 
 son V. Walker, 13 Ves. GOl ; Crowe v. Ballard, 3 B. C. 
 C. 117 ; Dunbar v. Tredenniok, 2 B. & B. 304 ; Smedley 
 V. Varleij, 23 Bea. 358. 
 
 But the Court in its discretion refuses or gives costs to Delay and 
 either party in particular circumstances of delay or acqui- g^^jg 
 escence : Attorney-General v. Dudley, G. Coop. 146; 
 Gregory v. Gregory, ibid. 201 ; Cha'nipion v. Rigby, 1 R. 
 & My. 539. 
 
 It seems that a receiver will not be appointed in the Receiver, 
 case of a breach of trust by trustees in purchasing the 
 trust estate : George v. Evans, 4 Y. & C. 211. 
 
 Confirmation and Acquiescence. 
 
 . I. Confirmation by Act of the Parties. 
 
 If the cestui que trust is sui juris and cognisant of Confirma- 
 his rights, and of the invalidity of the transaction, there ce^u/gue 
 is nothing to prevent him from an express, bond fide, ^™«* s™ 
 and binding confirmation of the purchase : Campbell 
 V. Walker, 5 Ves. 682; Morse v. Roycd, 12 Ves. 355; 
 
194 
 
 CONFIRMATION OF SALES TO TEUSTEES. 
 
 Knowledge 
 of cestui 
 que trust. 
 
 Confirma- 
 tion must 
 be distinct 
 act. 
 
 Pressure. 
 
 Dunbar v. Tredennick, 2 B. & B. 317 ; Roche v. O'Brien, 
 1 B. & B. 330 ; Ghalmer v. Bradley, 1 J. & W. 51 ; Sal- 
 mon V. Cutis, 4 D. G. & S. 125, 16 Jur. 623 ; Kempson 
 V. Ashhee, 10 Ch. 15, 20. 
 
 It is necessary for the trustee to give every information 
 to the confirming cestui que trust : Life Association of 
 Scotland v. Siddal, 3 De G. F. & J. 74 ; Baugh v. Price, 
 1 G. Wils. 320; Morse v. Royal, supra; Roche v. O'Brien, 
 supra. 
 
 The confirmatory act must be a distinct recognition not 
 connected with or forming part of the original transaction : 
 Fox Y.'Mackreth, supra ; Morse v. Royal, supra; Roche 
 V. O'Brien, suj^ra; Wood v. Dotvnes, 18 Ves. 128 ; 
 Roberts v. Tunstall, 4 Hare, 267 ; but see Clarke v. 
 Swaile, 2 Ed. 134. 
 
 Jt must not have been procured by pressurp, or be the 
 cqnseqtiencp of the embarrassed position of the cestui que 
 trust : Crowe v. Ballard, 3 B. C. 0. 117 ; Dunbar v. 
 Tredennick, 2 B. & B. 317 ; Wood v. Downes, supra. 
 
 Laches. 
 
 Grreat delay 
 fatal if 
 dealing 
 bond fide. 
 
 II. By Lapse of Time. 
 
 There is no rule deducible frqiji the cases fixing the 
 lij^ait of tipae ^vithin which proceecjipgs to upset sales to 
 fiduciary purchasers must be taken, but the application 
 should be made with promptness, so that the Court may 
 have before it the circumstances of value, fairness, and 
 other things which might be adduced by the trustee in sup- 
 port of the transaction. For instances, where lapse of 
 time has been held a bar to relief, see Randall v. Erring- 
 ton, 10 Ves. 423 ; Morse v. Royal, 12 Ves. 355 ; Cham- 
 pion V. Rigby, 1 R. & M. 639 ; Gregory v. Gregory, G. 
 Coop. 201, Jac. 631 ; Selsey v. Rhoades, 2 S. & S. 41, 
 1 Bli. N. R. 1. 
 
 If the fact of the purchase by the trustees is distinctly 
 known to the cestui que trust, and the whole transaction 
 was perfectly open, the purchase will certainly not be set 
 aside after 20 years : Barwell v. Banvell, 34 Bea. 371 • 
 
CONFIIIMATION OF SALES TO TRUSTEES. 10' 
 
 and see Randall v. Ervingtoii, 10 Ves. 423 ; but see 
 Attorney-General v. Dudley, G. Coop. 146. 
 
 Proceedings to set aside the purchase after a lapse of Extent of 
 more than 14 years failed in Gregory v. Gregory, supra ; ^ '^^' 
 Chavipion v. Righy, supra ; Roberts v. Tunstall, 4 Ha. 
 257 ; Baker v. Read, 18 Bea. 398. 
 
 Infancy and ignorance of the fact of the purchase pre- Disability 
 vent time from running: Campbell v. Walker, 5 Ves. C78; ^rnce^"" 
 Randall v. Errington, 10 Ves. 427; Ghalmer v. Bradley, 
 IJ. & W. 51 ; Charter v. Trevelyan, 11 CI. & F. 714. 
 
 Inability to provide for the expense of a suit may pre- Poverty, 
 vent the time from running : Oliver v. Court, 8 Price, 
 167 ; Roberts v. Tunstall, 4 Hare, 269. 
 
 With regard to acquiescence by a fer)ie covert, see CoTerture. 
 post, p. 334. 
 
 A body of creditors may obtain greater indulgence : Creditors. 
 Whichcote v. Lawrence, 3 Ves. 752 ; Exp. Smith, 1 D. 
 & C. 267. 
 
 o 2 
 
CHAPTER XXV. 
 
 OF THE RULE THAT TRUSTEES MAY NOT PROFIT BY THE 
 TRUST : ALLOWANCES TO TRUSTEES. 
 
 Trustee 
 may not 
 profit by 
 the trust. 
 
 Even if 
 great ad- 
 vantage to 
 trust by 
 his exer- 
 tions. 
 
 Bonus dis- 
 allowed. 
 
 The office of trustee is an honorary one ; and no trustee 
 or executor in trust under an express or constructive trust, 
 and no person in a fiduciary position, is entitled to any 
 benefit or to any remuneration for his care or trouble, 
 unless an allowance for that purpose is provided by the 
 instrument under which he acts ; and any profit so ob- 
 tained is taken subject to a constructive trust for the 
 persons at whose expense it is made : Robinson v. Pett, 
 3 P. W. 249 ; Ellison v. Airey, 1 Ves. Sen. Ill ; JSTew v. 
 Jones, 1 Macn. & Q. 668 n. ; Pollard v. Doyle, 1 Dr. & 
 Sm. 319 ; Douglas v. Archbutt, 2 D. & J. 148 ; Aberdeen 
 Town Council v. Aberdeen University, 2 App. Ca. 544, 
 557. 
 
 The fact that great advantage has accrued to the estate 
 by reason of the trustee's exertions will not entitle him to 
 reward : Robinson v. Pett, su^jra ; Barrett v. Hartley, 2 
 Eq. 789. 
 
 Thus a sum of s£400 claimed by the trustees for extra- 
 ordinary pains, trouble, and expense of time in and about 
 the affairs of the testator, particularly for having made up 
 some very intricate accounts, and got in some desperate 
 debts, was disallowed : Robinson v. Peit, supra. 
 
 A mortgagee, appointed, a trustee by certain cotton- 
 spinners, to get in debts and to manage the property, was 
 held not to be entitled to charge an annual bonus in his 
 accounts, though it was shown that he had greatly bene- 
 fited the estate : Barrett v. Hartley, siqv-a. 
 
PROFITS MADE BY TRUSTEES. 197 
 
 A mortgagee with power of sale, being a member of a Mortgagee 
 firm of auctioneers, or a broker, cannot charge commission tioneer. 
 upon a sale effected by his firm : Matthison v. Clarke, 3 
 Dr. 3 ; Arnold v. Garner, 2 Ph. 231 ; Kirkman v. Booth, 
 11 Beav. 273. 
 
 A mortgagee in possession cannot charge for receiving For receiv- 
 rents, though he may employ a receiver or bailiff, if ^'^^ "° ^' 
 required, and debit the estate with the expense ; Godfrey 
 V. Watson, 3 Atk. 518 ; Langstaffe v. Fenwich, 10 Ves. 
 404 ; Leitli v. Irvine, 1 M. & K. 286 ; Davis v. Bendy, 3 
 Madd. 170 ; Sclater v. Cottam, 3 Jur. N. S. 630. 
 
 A mortgagee in possession cannot charge for commission No com- 
 on the amount of bills paid on consignments, or on costs bills paid, 
 of insurance of supplies for a colonial estate : Leith v. <=onsign- 
 
 '^'^ ments, &c. 
 
 Irvine, 1 M. & K. 277. 
 
 If he acts as his own solicitor in a suit to defend his Acting as 
 own title, he can have his costs out of pocket only, not- himself, 
 withstanding the rule that a mortgagee is entitled to the 
 costs of defending his title : Sclater v. Cottam, 3 Jur. N. 
 S. 630. 
 
 Though there is nothing to prevent a solicitor who is Solicitors 
 a trustee acting as solicitor to the trust, he can charge his tees acting 
 cestuis que trust with costs out of pocket only, not with jjj *™^* 
 profit costs : JSfew v. Jones, 1 Macn. & G. 668 n, ; Moore v, 
 Frowd, 3 M. & Cr. 45 ; Christophers y. White, 10 Beav. 523 ; 
 Clack V. Carlon, 30 L. J. Ch. 640. 
 
 And it makes no difference that he is employed by the 
 other trustees : Manson v. Baillie, 2 MacQ. 80, in which 
 Cradock v. Piper, 1 Macn. & G. 664, was in effect over- 
 ruled ; see Broughton v. Broughton, 5 D. M. & G. 160. 
 
 In one instance, where a solicitor-trustee employed his 
 partner in the matter of the trust, on the terms of such 
 partner being alone entitled to the profits, the Court 
 allowed full professional charges : Clack v. Carlon, supra ; 
 but see contra, Collins v. Carey, 2 Bea. 128 ; Christophers 
 V. White, 10 Bea. 523. 
 
 An executor acting as agent to the estate cannot charge Agents. 
 as agent and obtain commission on business done for 
 
JOS 
 
 PROFITS MADE BY TRUSTEES — ALLOWANCES. 
 
 Bankera 
 ■who are 
 trustees. 
 
 Guardians. 
 
 Commit- 
 tees. 
 
 Inspectors 
 under 
 creditors' 
 deeds. 
 
 where sale 
 
 relaxed. 
 
 Trustee 
 
 acting as 
 
 solicitor in 
 
 numerous 
 
 suits. 
 
 Firm 
 acting in 
 trust 
 matters. 
 Costs of 
 another 
 client lend- 
 ing to the 
 trust. 
 
 Or as man- 
 ager of 
 testator's 
 business. 
 
 Remunera- 
 tion to 
 surviving 
 partner. 
 
 the estate : Sheriff v. Axe, 4 Russ. 33 ; Scattergood v. 
 Harrison, Mos. 128. 
 
 Bankers who are trustees can charge simple interest 
 only on money advanced by them to the trust : Grosshill 
 V. Bower, 32 Bea. 86. 
 
 Guardians, being constructive trustees, are subject to 
 the general rule ; Matheiu v. Brise, 14 Beav. 341 ; Slee- 
 man v. Wilson, 13 Eq. 36. 
 
 Committees of lunatics are allowed no remuneration 
 except under special circumstances : Re Walker, 2 Ph. 630 ; 
 Re WestbrooJce, 2 Ph. 631 ; JExp. Fermor, Jac. 404. 
 
 Inspectors under creditors' deeds cannot charge profits 
 against the estate for goods supplied for its use : Chaplin 
 V. Young, 33 Beav. 414. 
 
 Alloiuances. 
 
 The cases in which the Court has relaxed the general 
 rule are as follows : — 
 
 A trustee acting as solicitor in a number of suits 
 affecting the trust estate would, it seems, under special 
 circumstances, be allowed a reference to Chambers to fix a 
 remuneration, but not by way of profit costs : Bainbrigge 
 V. Blair, 8 Beav. 588 ; and see Marshall v. Holloiuay, 2 
 Swans. 453 ; Re Newton, 3 De G. & Sm. 584. 
 
 Where he agrees not to participate in the profits, his 
 firm may do the trust business : Clack v. Carlon, 30 L. J. 
 Ch. 640. 
 
 And he may charge with costs another client who lends 
 money to the trust : Whitney v. Smith, 4 Ch. 513. 
 
 Where he had managed the testator's business and 
 leaseholds for two years, he was allowed £120 by the 
 Court without a reference being directed : Forster v. 
 Ridley, 4 D. J. & S. 452. 
 
 As a surviving partner continuing the business with a 
 deceased partner's capital must account to his estate for 
 his share of the profits, the Court makes some pecuniary 
 allowance for the time and trouble of the surviving 
 partner : Broiun v. De Tastet, Jac. 284, 299. 
 
ALLOWANCES TO TRUSTEES. 199 
 
 So the mate of a ship, who had traded advantageously To mate 
 with the deceased captain's money, was bound to account ^here'cap- 
 for the profits to his estate, but was allowed a fair sum ^^^'^ liies- 
 for his care and trouble : Brown v. Litton, 1 P. W. 139. 
 
 Under special colonial legislation West Indian trustees, ^^^t 
 agents, &c., are allowed to charge a commission not ex- trustees: 
 ceeding 6 per cent, on consignment, management, &c. ^tTf 
 
 But such persons must be actually resident in the island commis- 
 and willing to act : Denton v. Davy, 1 Moore, P. C. C. 13 ; ^°°' 
 Forrest v. Elwes, 2 Mer. 68. absentees. 
 
 Money actually paid by them during absence may be 
 recovered if the payments are reasonable : Forrest v. Elwes, 
 supra; Chambers v. Goldwin, 5 Ves. 834 ; 9 Ves. 254. 
 
 And sales on which commission is charged must have On -what 
 been actually made and completed on the island : Henckell 
 v. Daly, 1 Moore, P. C. C. 51. 
 
 And the consignee has a lien on the estate for the Consignee's 
 balance due to him, unless precluded from enforcing it by 
 express contract to the contrary : Chambers v. Davidson, 
 L. R. 1 P. C. 296. 
 
 The Administrator-General of Estates in Bengal is en- c<)mmis- 
 
 • • C 1-11 ^^"^ ° 
 
 titled to a commission of 3 per cent, on moneys distributed Adminis- 
 or invested : Act No. VII., 1849. *^^*°^;i „£ 
 
 [In Madras and Bombay the rate is the same: see Bengal. 
 Matthews v. Baqshaw, 14 Beav. 126 n.l In Madras 
 
 ■^ ■' and Bom- 
 
 bay. 
 
 Provision for remuneration of an administrator of a Eemunera- 
 
 convict's property appointed under section 9 of 33 & 34 adminis- 
 
 Vict. c. 23, is made by section 11 of that Act. trator of 
 
 As to a trustee in bankruptcy, who is a solicitor, con- property, 
 
 tracting for remuneration, see s. 29 of the Bankruptcy Contract 
 
 Act, 1869. _ _ ':::zi\o 
 
 A solicitor or other professional person, who is a trustee, trustee m 
 may make his usual professional charges, where due pro- cy. 
 vision for that purpose is made by the settlement : Ellison ProTision 
 v. Airey, 1 Ves. Sen. 114; Moore v. Frotvd, 3 M. & Cr. t°r-t™s-' 
 45 ; Willis v. Kibble, 1 Bea. 559 ; Douglas v. Archbutt, tee, or 
 2 D. & J. 148. ■ °^l^''' 
 
 charge. 
 
200 
 
 ALLOWANCES TO TRUSTEES. 
 
 Not affect- 
 ed by such 
 agreement. 
 
 Parol 
 agreement. 
 
 Extra costs 
 and com- 
 mission. 
 
 Eeference 
 to Cham- 
 bers to fix 
 remunera- 
 tion. 
 
 Auditor. 
 
 "Profes- 
 sional 
 services": 
 what. 
 
 Where 
 annuity for 
 trouble. 
 
 Legacy 
 annexed to 
 office. 
 
 Legacy not 
 
 necessarily 
 
 a bar. 
 
 Eefusal 
 
 to act 
 
 without 
 
 reward. 
 
 Petition 
 for remu- 
 
 Such provision does not cease to operate by the institu- 
 tion of an administration suit : Baker v. Martin, 8 Sim. 
 25 ; Jackson v. Hamilton, 3 J. & L. 702. 
 
 It seems that such charges will be allowed on a verbal 
 agreement : Fraser v. Palmer, 4 Y. & C. Ex. 515. 
 
 Even where a trustee was under the will to charge a 
 commission, further allowance was sanctioned for manage- 
 ment and trouble in paying rates and taxes, stewards, 
 bailiffs, &c. : Webb v. Earl of Shaftesbury, 7 Ves. 480. 
 
 The amount of the remuneration provided for, but not 
 fixed, will be referred to Chambers : Ellison v. Airey, 1 
 Ves. Sen. 114 ; Jackson v. Hamilton, 3 J. & L. 702 ; 
 Willis V. Kibble, 1 Beav. 559. 
 
 If the testator appoints an auditor with a salary, the 
 trustees must allow him to act and pay him : Williams 
 V. Co^-bet, 8 Sim. 349 ; Hibbert v. Hibbert, 3 Mer. 681. 
 
 " Liberty to charge for professional services " means 
 only services strictly professional, and not such things as 
 attendances to pay premiums, or to make transfers, or on 
 proctors, auctioneers, legatees and creditors : Harbin v. 
 Darby, 28 Beav. 325. 
 
 Where an annuity is given to a trustee for his trouble 
 so long as he continues to act as trustee, it ceases when 
 the property is paid over to a person absolutely entitled : 
 Hull V. Christian, 17 Eq. 546 ; and this will be the case 
 even though there are no express words in the will to 
 limit it to that period : Henrion v. Bonha')n, Drur. 476. 
 
 A trustee to whom a legacy is so given as to be clearly 
 annexed to the office, will not take it if he has never 
 acted : Piggott v. Green, 6 Sim. 72 ; Slaney v. Watney, 2 
 Eq. 418. 
 
 A legacy is not in a proper case a bar to remuneration ; 
 and where a trustee refuses to act without payment, it 
 will be referred to Chambers to enquire if it is for the 
 advantage of the beneficiaries that he should continue to 
 act, and to fix an allowance for both past and future ser- 
 vices : Marshall v. Holloway, 2 Sw. 453. 
 
 If the nature of the trust is such that the trustee ought 
 
ALLOWANCES TO TRUSTEES. 201 
 
 not to undertake it without compensation, a special case aeration 
 
 . ■*■ .ma proper 
 
 for it must be made by petition before the trust is ac- case. 
 cepted : Brochsopp v. Barnes, 5 Madd, 90 ; Bainbrigge v. 
 Blair, 8 Bea. 597. 
 
 There is nothing actually illegal in a contract between Contract 
 a trustee and his cestui que trust, that the former should 
 receive compensation for his trouble : Barrett v. Hartley, 
 2 Eq. 789 ; Re Wyche, 11 Bea. 209 ; Stanes v. Parker, 9 
 Bea. 385 ; Todd v. Wilson, 9 Bea. 486. 
 
 But the cestui que trust must be a reasonably free agent, Pressure 
 and in a situation to enable him fairly to make a bargain ^^^^^ 
 for himself, as any circumstances of pressure will inevit- 
 ably vitiate the transaction : Ayliffe v. Murray, 2 Atk. 
 58 ; Qould v. Fleetwood, cited 3 P. W. 251 n. ; Barrett v. 
 Hartley, supra; Eyre v. Hughes, 2 Ch. D. 161. 
 
 Separate independent advice, or at least a clear under- Separate 
 
 3,d.vicG 
 
 standing on the part of the cestui que trust that the 
 trustees would otherwise be entitled to costs out of pocket 
 only, is a necessary requirement to render such a contract 
 valid : Re Wyche, supra ; Re Shenvood, 3 Bea. 338 ; 
 Todd V. Wilson, 9 Bea. 486. 
 
 Such a contract between a solicitor-trustee and his co- Contract 
 trustee who is also executrix, is of no effect: Broughton soiicitor- 
 V. Broughton, 5 D. M. & G. 160. t™^t«<=' 
 
 '^ and co- 
 
 As between mortgagor and mortgagee an agreement trustee 
 that the latter shall have an allowance as receiver will not ^''^™*"^- 
 be enforced : Chambers v. Goldwin, 9 Ves. 271. and m^t^ 
 
 A solicitor who is a mortgagee cannot stipulate for a s^^^®' 
 commission on rents received as a condition of a further aUowance 
 advance : Eyre v. Hughes, 2 Ch. D. 148. condition 
 
 Trustees are allowed all costs out of pocket, and such advance, 
 sums as are held to be "just allowances." Costs out 
 
 " Just allowances " include :— "* p"''"'*- 
 
 Taking opinions of counsel and procuring directions : lowances : 
 Fearns v. Younq, 10 Ves. 184. opinions of 
 
 Charges of a sale : Crump v. Baker, 18 Ves. 284. q^^^^ ^j 
 
 Accountant's charges : New v. Jones, 1 Macn, & G. sale. 
 668 n,; Henderson v. Mclver, 3 Madd. 275. Account- 
 
 ' ant s 
 
 charges. 
 
203 
 
 JUST ALLOWANCES. 
 
 Collecting 
 rents by 
 agents. 
 
 Sec us : 
 commit.t:ea 
 
 and solici- 
 tors. 
 
 When 
 trustees 
 appointed 
 receive/s 
 with salary. 
 
 Recovery 
 of extra 
 Costs. 
 
 A rent collector's or mortgagee's charges where there 
 were several houses let to weekly tenants : WiUcinson v. 
 
 Wilkinson, 2 S. & S. 237 ; Davis v. Bendy, 3 Madd. 
 170. 
 
 A committee has been allowed percentage on rents 
 C9llected as a just allowance: Re WestbrooJce, 2 Ph. 631. 
 
 So have solicitors, where the rents would be endangered 
 by waiting for the appointment of a receiver : Stewart v. 
 Hoare, 2 Bro. C. C. 663. 
 
 But trustees may be appointed receivers with a salary 
 where they have special knowledge and it is for the 
 benefit of the trust estate : Marshall v. Holloiuay, 2 
 Swans. 453 ; Newport v. Bury, 23 Bea. 30. 
 
 But special circumstances must be shown : Anon, 3 Ves. 
 515 ; SyJces v. Hastings, 11 Ves. 363 ; Sutton v. Jones, 15 
 Ves. 584. 
 
 The extra costs or allowances of a trustee may be 
 recovered in a second suit as to the same estate : Amand 
 V. Bradhourne, 2 Ch. Ca. 138 ; and see Walters v. Wood- 
 bridge, 7 Ch. D. 504. 
 
CHAPTEE XXVI. 
 
 OF THE RETIREMENT AND REMOVAL OP TRUSTEES AND 
 APPOINTMENT OF NEW TRUSTEES. 
 
 Whenever any trustee, either original or substituted, Lord d-an- 
 and whether appointed by the Court or otherwise, shall ^°^. ^^^ 
 die, or desire to be discharged from, or refuse, or become plying 
 unfit, or incapable to act, it shall be lawful for the person appohit" 
 or persons nominated for that purpose by the deed, will, "^'^ ^^^^' 
 or other instrument (if any) creating the trust, or if there 
 be no such person, or no such person able and willing to 
 act, then for the surviving or continuing trustees or trustee 
 for the time being, or the acting executors or executor, or 
 administrators or administrator of the last surviving and 
 continuing trustee, or for the last retiring trustee, by 
 writing to appoint any other person or persons to be a 
 trustee or trustees in the place of the trustee or trustees 
 so dying, or desiring to be discharged, or refusing, or be- 
 coming unfit, or incapable to act as aforesaid ; with power 
 to vest the trust estate in such new trustee or trustees ; 
 and every new trustee so appointed as well before as after 
 the conveyance to him, and also every trustee appointed 
 by the Court of Chancery either before or after the passing 
 of the Act, may exercise all powers as if he had been an 
 original trustee : 24 & 25 Vict. c. 145, 527. 
 
 This Act does not oust the jurisdiction of the Court to Act does 
 increase the number of trustees : D'Aclhemar v. Bertrand, ^ll^l^'. 
 35 Bea. 19 ; Re Breary, W. N. 1873, 48. crease of 
 
 In a case where, of two trustees, the surviving or con- ^, 
 tinuing trustees or trustee were to appoint, and both died donee of 
 without appointing, it was considered too doubtful whether wThouf ^^ 
 
 appointing. 
 
204 
 
 NEW TRUSTEES. 
 
 Appoint- 
 ment by 
 suiTivor. 
 
 Eectifica- 
 tion of 
 power. 
 
 Jurisdic- 
 tion not- 
 withstand- 
 ing power; 
 
 in an 
 action. 
 
 Where 
 trustees 
 refuse to 
 act. 
 
 Or cease to 
 exist. 
 
 Where 
 there are 
 de facto 
 trustees 
 with power 
 to appoint. 
 
 Intended 
 corrupt 
 exercise of 
 power. 
 
 Court's 
 control 
 over ex- 
 ercise. 
 
 the Act applied, and the Court made the appointment : 
 Re Jackson, 16 "W. R. 572 ; 18 L. T. N. S. 80. 
 
 Where one of two trustees of a separation deed died, it 
 was held that the power vested in the survivor, and a 
 petition by the husband claiming the right to select a 
 new trustee to be appointed by the Court under the Act 
 was dismissed with costs : Re Soulby, 21 W. R 25C. 
 
 Where the power in a deed was clearly not in accord- 
 ance with the prior executory settlement, the appointment 
 under it was confirmed and the power rectified by the 
 Court : Tehbitt v. Tebbitt, 1 De G. & Sm. 506 ; see the 
 decree, p. 510. 
 
 The Court has power to appoint new trustees though 
 there be a power in the instrument : Re Fauntleroy, 10 
 Sim. 252. 
 
 And it has inherent jurisdiction in a cause to appoint 
 trustees of a will in a case where no trustees were origi- 
 nally appointed by the testator : Bodkin v. Brunt, 6 Eq. 
 580 ; Re Bavis, 12 Eq. 214. 
 
 Or where the trustees originally appointed refuse to 
 act : Moggeridge v. Ch-ey, Nels. 42 ; ATwn. 4 I. Eq. R. 700 ; 
 but see Re Oart, 10 L. T. N. S. 331. 
 
 As to the course to be adopted where a body of trustees 
 cease to have existence as such, or where there is no 
 trustee in existence : King of Hanover v. Bank of Eng- 
 land, 8 Eq. 350 ; Gunson v. Simpson, Eq. 332 ; Re Smirth- 
 waite, 11 Eq. 251. 
 
 The Court has no authority to appoint new trustees 
 under Lord Cranworth's Act where there are trustees de 
 facto acting, or willing and able to make an appointment 
 as such : Exp. Hadley, 5 De G. & Sm. 67; Re Hodson, 9 
 Hare, 118. 
 
 Even if the trustees show an intention of exercising it 
 corruptly : Re Hodson, supra. 
 
 Where the trustees were entitled to a commission. Lord 
 Eldon said that the Court would see that the discretion 
 to appoint was properly exercised : Webb v. Shaftesbury, 
 7 Ves. 487. 
 
NEW TRUSTEES. 305 
 
 And if the appointor has actually taken money for the Taking 
 appointment, the Court will set it aside : Sugden v. Cross- ^p"o1nt-°^ 
 land, 3 Sm. & G. 192 ; Rcdkes v. Raikes, 32 Bea. 403. °'™*- 
 
 In ordinary cases trustees who are parties to an action changing 
 are not allowed to change the trustees without the autho- '™^^^,'jjg 
 rity of the Court : Webh v. Shaftesbury, 7 Ves. 480 ; At- Ute. 
 tomey-General v.' Clack, 1 Bea. 467 ; Peatfield v. Benn, 17 
 Bea. 522 ; and see Graham, v. Graham, 16 Bea. 550 ; Cafe 
 V. Bent, 3 Hare, 245 ; Buxton v. Buxton, 1 M. & Cr. 80. 
 
 The Court will direct an appointment without reference Practice on 
 to Chambers upon proper evidence of fitness : Oglander meut'in an 
 V. Oglander, 2 De G. & Sm. 381. For the form of order action. 
 for appointment of new trustees in an action see Seton, 
 499. 
 
 New trustees of a fund in Court should be made parties Parties. 
 to an action for the administration of the trusts : N'elson 
 V. Seaman, 1 D. F. & J. 368. 
 
 The death of the trustee in the testator's lifetime does Death of 
 not prevent his place being filled up by the donee of the iif"time™f 
 power : Re Hadley, 5 De G. & Sm. 67; see contra. Winter testator. 
 V. Rudge, 15 Sim. 596 ; but this is now expressly enacted 
 by s. 28 of 23 & 24 Vict. c. 145. 
 
 A trustee who has accepted a trust is not allowed volun- Tmstees 
 tarily, from mere caprice or other trivial cause, to throw it retire "a- 
 up at the expense of his cestui que trust : Courtenay v. priciousiy. 
 Courtenay, 3 J. & L. 529 ; Howard v. Rhodes, 1 Keen, 
 581 ; Forshaw v. Higginson, 20 Bea. 485. 
 
 But if he finds the trust estate involved in complicated May retire 
 questions not contemplated when he undertook the trust, J, j'^j^" 
 he has a right to come to the Court to be relieved from questions 
 it : Greenwood v. Wakeford, 1 Bea. 576 ; Coventry v. 
 Coventry, 1 Keen, 758 ; Gardiner v. Downes, 22 Bea. 397. 
 
 And the privilege of payment in under the Trustee Though he 
 Relief Act does not take away that right : Barker v. ™jfcourt 
 Peile, 2 Dr. & Sm. 340 ; but see Wells v. Malhon, 31 
 Bea. 48 ; Thomxis v. Walker, 18 Bea. 521. 
 
 But such questions must arise out of the administra- 
 tion of the trusts, and not relate to himself individually. 
 
203 
 
 NEW TEUSTEES. 
 
 Refusal of 
 benefici- 
 aries to re- 
 tirement. 
 
 Cestui que 
 trust 
 taking 
 benefit of 
 the action. 
 
 Where 
 doubtful 
 that trust 
 at an end. 
 
 Where 
 trust at an 
 end. 
 
 Executor 
 need not 
 become a 
 trustee. 
 
 Duty of 
 retiring 
 trustee. 
 
 in which latter case he must pay the costs occasloDed by 
 his retirement : Forshaiv v. Higginson, 20 Bea. 485. 
 
 But if the trusts are such as that it is doubtful whether 
 they ought to have been declared in the mode adopted by 
 the deed appointing the trustees, though they may know of 
 the doubt before accepting the trust, still if they after- 
 wards receive information making it doubtful whether 
 they ought to execute them, they have a right to come to 
 the Court for its direction whether the trusts ought to bo 
 executed : Neale v. Davies, 5 D. M. & G. 2.58. 
 
 If the cestui que trust refuse to allow him to retire, or 
 to take any steps to replace him, the trustee would be 
 entitled to go to the Court to be relieved : Forshaiu v. 
 
 Higginson, 20 Bea. 485 ; see v. Osborne, 6 Ves. 455 ; 
 
 Gardiner v. Bownes, 22 Bea. 395. 
 
 If the cestui que trust take the benefit of the action by 
 asking for an account against him, the action becomes one 
 for ordinary administration, with the usual result as to 
 costs : Forshaw v Higginson, 20 Bea. 485. 
 
 Where a jointure term was vested in trustees, and the 
 wife afterwards released her jointure, upon the sale of the 
 estate charged, without the concurrence of the trustees, it 
 was held that they were entitled to full proof that their 
 duties were at an end, and to their costs of a suit to com- 
 pel them to assign the term to the purchaser of the estate : 
 Holford V. Pliipps, 3 Bea. 434. 
 
 But in a case where the equitable estate is assigned to 
 other trustees for sale, the original trustees are not entitled 
 to demand that their cestuis que trust should be parties to 
 the assignment of the legal estate : Angier v. Stannard, 
 3 M. & K. 666. 
 
 An executor is not bound to undertake any continuing 
 trusts, and will have his costs on proceedings to remove 
 him : Legg v. Maehrell, 2 D. F. & J. 551 ; and see Ald- 
 ridge v. Westbrooh, 4 Bea. 212. 
 
 When a trustee becomes desirous of retiring, he is bound 
 to transfer the property to the continuing trustee, and a 
 new trustee to be appointed in his place ; and nothing 
 
NEW TRUSTEES. 207 
 
 can relieve him from that obligation but the consent of 
 all parties interested in the trust, which is possible only 
 if all are free from disability : Wilkinson v. Parry > 
 4 Russ. 272. 
 
 So if he assigns to the continuing trustee alone, he itustnot 
 remains liable for a subsequent loss of the fund ; Ihid. ; goie^-us- 
 and see Attorney-General v. Pearson, 3 Mer. 412. *■«<=. 
 
 And it is not enough to transfer the fund without exe- And must 
 cuting the deed of appointment : Pearce v. Pearce, ^1^°™*° ^'"^ 
 22 Bea. 248. 
 
 An appointment with notice of an intended breach of Notice of 
 trust to he committed by the new trustees, leaves the breach of 
 appointing trustee liable for it : Le Hunt v. Webster, tr™t by 
 
 DCw trus- 
 
 9 W. R. 918 ; Palairet v. Garew, 32 Bea. 567 ; Clark tee. 
 V. Hoskins, W. N. 1867, 216. 
 
 It is improper for a trustee to retire on the ground of Wliere 
 want of confidence in his co-trustee, who might imme- distn^sts 
 diately exercise the power to appoint a new trustee of his co-trustee. 
 own choice : Forskavj v. Higginson, 20 Bea. 487. 
 
 Since the Judicature Act, 1873 (s. 25, sub. s. 10), it Indemnity 
 would seem that a bond of indemnity given to the re- tru^e™"^ 
 tiring trustee would not be available or sustainable at 
 law, and that the case of Wariuick v. Richardson, 10 M. 
 & W. 284, would not now be followed. 
 
 A trustee, who is entitled to be discharged from his Wliere no 
 trust, is not bound to show that there is some other c^^ be"^ "'^ 
 person ready to accept the trust. If no person will found. 
 accept the trust, the Court may have to keep the trustee 
 before it, and not discharge him ; but it will take care 
 that the trustee shall not suffer thereby : Oourtenay v. 
 Gourtenay, 8 J. & L. 619 ; Ardill v. Savage, 1 Ir. Eq. 
 R. 79 ; but see Hamilton v. Fry, 2 Moll. 458. In such 
 a case it seems that the Court will appoint the remaining 
 trustee to be sole trustee, in order to avoid the alternative 
 of an action for administration : Re Stokes, 13 Eq. 333. 
 
 When part of the trust estate is alleged to have been Where old 
 
 lost by the former trustees, the whole estate is vested by h'^v^*!^^* 
 
 the order in the new trustees, with inquiries as to the ^^^ °^ 
 
 estate. 
 
208 
 
 NEW TRUSTEES. 
 
 Effect of 
 appoint- 
 ment by- 
 Court as to 
 iudemnity. 
 Where 
 case not 
 provided 
 for by 
 power. 
 
 Payment 
 into Court 
 is refusal 
 to act. 
 
 Effect of 
 disclaimer. 
 
 Renuncia- 
 tion by 
 executor 
 having the 
 power. 
 
 Effect of 
 declining to 
 act where 
 power 
 given to 
 *' surviving 
 or continu- 
 ing." 
 
 loss : Bennett v. Burgis, 28 Feb., 1846 ; 5 Hare, 296 ; 
 Hansell v. Hansell, V.-C. M., 12 June, 1875. 
 
 Trustees are not indemnified by an appointment by the 
 Court further than they would have been if appointed 
 under a power : Trustee Act, 1850, s. 36. 
 
 It is necessary to apply to the Court where a trustee^ 
 wishing to retire, has acted, and has power to appoint, 
 only in the case of " dying, declining, or becoming in- 
 capable to act " : Re Woodgate, 5 W. R. 448 ; Re Arm- 
 strong, ibid.; compare Travis v. Illingtvorth, 2 Dr. & 
 Sm. 344. 
 
 Payment into Court under the Trustee Relief Act, is a 
 case of " refusing or declining to act " : Re Williams, 
 4 K. & J. 87. 
 
 A proper disclaimer is construed as a desire to retire ; 
 and whether the disclaiming trustee had acted or not, 
 the donee of the power, who was the settlor, was held 
 entitled to appoint new trustees : Nohle v. Meymott, 
 14 Bea. 471. 
 
 Where three trustees were appointed and one dis- 
 claimed, and one died, the remaining one was held 
 entitled to appoint new trustees, though the power 
 was given to the "surviving trustee": Cafe v. Bent, 5 
 Hare, 24. 
 
 A disclaiming trustee may reserve his power to appoint 
 new trustees in his own place and in the place of one who 
 had died in the settlor's life time : Re Hadley, 5 De G. & 
 Sm. 67. 
 
 If the power is given to executors and one renounces, 
 the others may exercise it : Granville v. McNeile, 7 
 Ha. 156. 
 
 A power for the survivors, or survivor, of two trustees 
 "so acting in trusts, &c.," is exercisable only by the trustees 
 continuing to act, and not by both who decline to act : 
 Sharp V. Sharp, 2 B. & Aid. 405. 
 
 Two retiring trustees cannot appoint two new trustees 
 under a power given to surviving or contin uing trustees : 
 Stones V. Rowton, 17 Bea, 308 ; and see Nicholson v. 
 
NEW TKUSTEES. 209 
 
 Wright, 5 W. R 431 ; Travis v. Illingworth, 2 Dr. 
 & Sm. 344. 
 
 A power to the surviving, or continuing, or other 
 trustee or trustees, authorises an appointment by the 
 survivor of four trustees who was desirous of retiring, he 
 being thus "another" trustee: Gamoys v. Best, 19 Bea. 
 414. 
 
 Where it is held that a trustee, by reason of bankruptcy. Effect of 
 is unfit to act, the power of the tenant for life to appoint capable ''°' 
 may still be unaffected, though there may be no "surviving ^tero 
 or continuing trustee " with whose concurrence he had "surviving 
 power to appoint: Ee Roche, 1 C. & L. 308; and see orcontinu" 
 Morris v. Preston, 7 Ves. 547. 
 
 As to the appointment of new trustees where several Sets of 
 classes of trustees are appointed in respect of several 
 parts of the property, see Sharp v Sharp, 2 B, & Aid. 
 404 ; see Re Dennis, 12 W. E. 575. 
 
 The conviction of a trustee gives the Court power to Felony. 
 appoint under the Trustee Extension Act, 1852 (s. 8). 
 
 The bankruptcy of a trustee renders him "unfit" to act : " Unfit to 
 Re Roche, 2 Dr. & War. 287 ; Harris v. Harris, 29 Bea. ''°*'" 
 107; Re Renshaw, 4 Ch. 783. 
 
 Though he is discharged and the trust estate is in the Discharged 
 hands of a receiver : Bainhrigge v. Blair, 1 Bea. 495. ^° '^'^" 
 
 "It is the duty of the Court to remove a bankrupt B^moval 
 trustee who has trust money to receive or deal with, so that o^ tank- 
 he can misappropriate it : " Re Barker, 1 Ch. D. 43 ; Re ruptcy. 
 Bridgman, 1 Dr. & Sm. 164 ; Harris v. Harris, 29 Bea. 
 107; Bankruptcy Act, 1869 (32 & 33 Vict. c. 71, s. 
 117). 
 
 If a trustee becomes bankrupt, the Chancery Division Under 
 
 will remove him under s. 117 of the Bankruptcy Act, cy*Act°^ ' 
 
 1869 : see the cases under the similar sections of the Act 1869, s. 
 
 117 
 of 1849 (s. 130) : Hxp. Bufery, 2 D. & C. 577 ; Bxp. 
 
 Painter, 2 D. & C. 584 ; Re Remington, 3 D. & C. 24 ; 
 
 Hxp. Saunders, 2 G. & J. 132; Exp. InJcersole, 2 G. 
 
 & J. 230. 
 
 The " Court " mentioned in s. 117 of the Bankruptcy 
 
210 
 
 NEW TRUSTEES. 
 
 "Inca- 
 pable to 
 act. " 
 
 Absence 
 abroad. 
 
 Permanent 
 
 absence 
 
 abroad. 
 
 Tepiporary 
 
 absence 
 
 abroad. 
 
 Mortgage 
 
 trusts not 
 
 within 
 
 Trustee 
 
 Act. 
 
 But im- 
 plied and 
 construc- 
 tive trusts 
 are. 
 
 Unpaid 
 vendors. 
 
 Act, 1869, is the late Court of Chanceiy : Goombes y. 
 Brookes, 12 Eq. 61 ; see Re Renshaw, 4 Ch. 783. 
 
 The words " incapable to act '' refer to personal in- 
 capacity ; and therefore, however unfit to act, an abscond- 
 ing bankrupt does not come within the meaning of the 
 term, so as to bring the case within the power : Re Watts, 
 9 Ha. 106 ; and see Turner v. Maule, lo Jur. 761 ; Re 
 Renshaw, 4 Ch. 783. 
 
 Upon the same principle, residence abroad is not 
 necessarily a reason for appointing new trustees, though 
 the Court might, under the Trustee Act, deem it expedient 
 to make such an appointment : Re Bignold, 7 Ch. 223 ; 
 and see Withington v. Withington, 16 Sim. 104 ; Re 
 Harrison, 22 L. J.'Ch. 69; Re Stewart, 8 W. K. 297. 
 Mennard v. Welford, 1 Sm. & G. 426, contra, is dis- 
 approved. 
 
 Secus, as to permanent residence abroad : Ledwich v. 
 Ledwich, 6 Ir. Eq. 561. 
 
 And apart from the Act, the Court would, in a suit, con- 
 sider the primd facie objection to a trustee residing 
 abroad, and control the discretion to refuse to supply his 
 place : O'Reilly v. Alderson, 8 Ha. 104. 
 
 A mere temporary absence is not a ground for substitu- 
 tion : Re Moravian Society, 26 Bea. 101. 
 
 The Trustee Acts do not apply to the duties incident 
 to an estate conveyed by way of mortgage : Trustee Act, 
 1850, s. 2 ; and see Re Osborn, 12 Eq. 392. 
 
 But the form of a mortgage deed may, by its terms, 
 embrace trusts which would bring the case within the 
 Acts : Re Underwood, 3 K. & J. 745. 
 
 And the Act (by the above section) includes implied 
 and constructive trusts, and cases in which the trustee 
 has also a beneficial interest : see Re Probert, 1 W. R. 237; 
 Re Angelo, 5 De G. & Sm. 278 ; Re Davis, 12 Eq. 
 214. 
 
 Thus the infant heir of a vendor who has died without 
 conveying is within the Act after a decree declaring him 
 to be a trustee for the purchaser : Re Carpenter, Kay, 418 ; 
 
NEW TRUSTEES. 211 
 
 Re Wilkinson, 12 W. R 522 ; Re Weeding, 4 Jur. N. S. 
 707. 
 
 Unsoundness of mind is within the case of being " un- Lunacy. 
 aLle to act" : Re East, 8 Ch. 735. 
 
 In selecting the proper persons to be appointed as new Principle 
 trustees, the rules of the Court, which should be followed <"> which 
 
 ' new trus- 
 
 also in appointments privately made, are as follows : — tees se- 
 
 Regard should be had to the wishes of the persons by *" ^ ' 
 whom the trusts have been created, if expressed in the 
 instrument creating the trusts, or clearly to be collected 
 therefrom : Re Tempest, 1 Ch. 485. 
 
 No person should be appointed with a view to the inte- 
 rest of some of the parties interested under the trusts, in 
 opposition either to the wishes of the settlor or to the 
 interests of others of the cestuis que trust : Ibid. 
 
 Regard should be had to the question whether the 
 appointment will promote or impede the execution of the 
 trust : Ibid. 
 
 And where the Court appoints new trustees in a suit, wishes 
 the wishe.s of the donee of the power will, in a proper case, 5'*^^'^'^^^ 
 be complied with : Middleton v. Reay, 7 Hare, 106. 
 
 A relation of the cestui que trust should not be ap- Appoint- 
 pointed, unless no one else can be found to undertake the j-giationa 
 office : Wilding v. Bolder, 21 Bea. 222 ; Re Hattatt, W. 
 N., 1870, 14 ; Re Davis, 12 Eq. 214. 
 
 And, a fortiori, a relation with whom the settlor was on 
 bad terms : Re Tempest, supra. 
 
 If the power to appoint contains nothing to the con- Tenant 
 trary, the tenant for life may be appointed : Forster v. ' ^' 
 Abraham, 17 Eq. 351 ; and see Exp. Glutton, 17 Jur. 
 988 ; D'Adhemar v. Bertrand, 35 Bea. 19. 
 
 Or a cestui que trust : Re Dixon, 21 W. R. 220 ; Re Cestui que 
 Clissold, 10 L. T. N. S. 642 ; Re Campbell, 31 Bea. 176 ; *"''■ 
 Re Berkley, 9 Ch. 720. 
 
 Or the husband of a cestui que trust : Re Hattatt, 18 Husband. 
 W. R. 416. 
 
 Or the solicitor to the trust ; Re Brentnall, W. N. SoUcitor to 
 1872, 77. *'"*• 
 
 P 2 
 
212 
 
 NEW TRUSTEES. 
 
 Foreigner. 
 
 Infant, 
 
 Females. 
 
 Increase of 
 number. 
 
 Intention 
 
 against 
 
 increase. 
 
 Otlier 
 reasons 
 against 
 increase. 
 
 Diminution 
 in number. 
 
 It is not necessarily objectionable to appoint a foreigner, 
 though a marriage settlement is usually assumed to be 
 English if made in England ; and though it comprise per- 
 sonalty only, if the husband have not given up an original 
 foreign domicil of origin, foreign trustees may be ap- 
 pointed : Meinertzhagen v. Davis, 1 Coll. 335, 345 ; Re 
 Curtis, I. E. 5 Eq. 429 ; Re Smith, 20 W. R. 695 ; but 
 see Re Ouihert, 16 Jur. 852 ; Re Long, 17 W. R. 218. 
 
 An infant may be removed, but he retains the right to 
 assume the trust at majority : Re Porter, 25 L. J. Ch. 
 482 ; Re Shelmerdine, 33 ibid. 474. 
 
 A married, or even a single woman, is obviously not a 
 desirable person for the office of trustee : Brook v. Brook, 
 1 Bea. 531 ; Avery v. Grifin, 6 Eq. 606 ; but see Re 
 Campbell, 31 Bea. 176. 
 
 Unless the power expressly limits the original number, 
 the number may be increased : MeineHzliagen v. Davis, 
 1 Coll. 335 ; Sands v. Nugee, 8 Sim. 130 ; and see Hill- 
 man V. Westwood;, 24 L. J. Ch. 57 ; Birch v. Cropper, 2 
 De G. & Sm. 255 ; Plenty v. West, 16 Bea. 356 ; Re 
 Tunstall, 4 De G. & Sm. 421 ; Re Boycott, 5 W. R. 15 ; 
 but see Exp. Davis, 2 Y. & C. C. C. 468 ; Re Breary, W. 
 N. 1873, 48 ; Re Hill, W. N. 1874, 228 ; Re Drewe, W. N. 
 1876, 168. 
 
 Where it appeared by evidence that the intention of 
 the settlors was that there should not be less than two 
 trustees, it was held to be a breach of trust to appoint a 
 single one ; Hulvne v. Hulme, 2 M. & K. 682. 
 
 The Court is guided by the selection of the cestuis que 
 trust, the state of the property, and the time at which 
 the appointment is brought to the notice of the Court, 
 and it will not declare the appointment of a diminished 
 number of trustees a breach of trust after the trust has 
 for a long time been administered by them : Re Poole 
 Bathurst, 2 Sm. & G. 173 ; and see Emmet v. Clark, 3 
 Gif 32. 
 
 In a proper case the Court will appoint less than the 
 original number : Lonsdale v. Beckett, 4 De G. & Sm. 73 ■ 
 
NEW TRUSTEES. 213 
 
 Re Marriott, W. N. 1868, 215 ; but see Gorrie v. Byrom, 
 Hill on Trustees, 610 ; and Walsh v. Gladstone, 14 Sim. 2. 
 
 The Court never allows a sole trustee to continue alone, Soie 
 or appoints a person to be a sole trustee : Re Tunstall, 4 *™°*^^- 
 De G. & Sm. 421 ; Re Dickinson, 1 Jur. N. S. 724 ; Re 
 Roberts, 7 Jur. N. S. 818 ; D'Adhemar v. Bertrand, 35 
 Bea. 19 ; but see Devey v. Peace, Taml. 77 ; Re Stokes, 
 13 Eq. 333. 
 
 And a remainderman may ask for an appointment of 
 additional trustees where only a sole trustee remains : 
 Finlay v. Howard, 2 Dr. & War. 490. 
 
 Funds will not be paid out of Court to a sole trustee, 
 unless all parties are before the Court : Re Roberts, 7 Jur. 
 N. S. 818. 
 
 And if the original number be reduced to one, he 
 should not retire unless the original number be filled up : 
 Barnes v. Addy, 9 Ch. 244. 
 
 In charitable trusts, a power to appoint when the Appoint- 
 
 1 . , 1 , . , , .1 ment when 
 
 number is reduced to a given number may be exercised, number 
 though the number may have fallen below that specified : reduced 
 Attorney-General v. Flayer, 2 Vern. 748 ; and see Doe v. number. 
 Roe, 1 Anst. 86. 
 
 Since Lord St. Leonard's Act (22 & 23 Vict. c. 35, s. Appoint- 
 21), "any person shall have power to assign personal transfer 
 property by law assignable (as to which see Judicature ty single 
 Act, 1873, s. 25, sub-sec. (6) ), including chattels real, 
 directly to himself and another person oiv. persons, or 
 corporation, by the like means as he might assign the 
 same to another." In consequence of this enactment, 
 only one deed is necessary for the appointment of new 
 trustees and the vesting of all kinds of property in them ; 
 for the Act allows of assignments by the continuing 
 trustee to himself and another. Equitable interests 
 require no assignment, if the intention to assign suffi- 
 ciently appear ; and real estate is now considered to be 
 properly vested by a simple conveyance : Lewin, pp_ 
 357—359. 
 
 The executors of the last surviving trustee must not Duty of 
 
'A4> 
 
 NEW TRUSTEES. 
 
 executors 
 of last 
 surviving 
 trustee. 
 
 Where 
 tenant for 
 life, donee 
 of power, 
 sells or 
 mortgages. 
 
 Posibion of 
 trustee 
 before con- 
 Teyance to 
 him. 
 
 His posi- 
 tion since 
 Lord Cran- 
 worth's 
 Act. 
 
 refuse to transfer the fund to new trustees duly appointed 
 by the tenant for Ufe, or pay the fund into Court : Re 
 Wine, I. R. 3 Eq. 599. 
 
 If the tenant for life have the power to appoint, and 
 he sell or mortgage, he may still appoint with the con- 
 currence of the purchaser or mortgagee : Lewin, p. 550 ; 
 and see Aleomnder v. Mills, 6 Ch. 124. 
 
 If after a sale, the nominated trustee to whom the 
 estate has not been transferred obtains the purchase- 
 money, he becomes a trustee for all purposes : Glough v. 
 Bond, 3 M. & Cr. 497; Welstead v. Colvile, 28 Bea. 
 537. 
 
 After an appointment has been duly made, even 
 where the instrument does not provide for the immediate 
 acting of the new trustees, they may exercise a power of 
 sale before the conveyance to them of the trust estate ; 
 Welstead v. Colvile, 28 Bea. 537 ; but see Foley v. Wont- 
 ner, 2 J. & W. 248. 
 
 In such a case the continuing trustees can maintain 
 an action for specific performance, and give a discharge 
 for the purchase-money : Wai^burton v. Sandys, 14 Sim. 
 622. 
 
 And powers may be exercised by the appointing trus- 
 tees, though the appointment be not properly made ; 
 Miller v. Priddon, 1 D. M. & G. 335 ; but see Lancashire 
 V. Lancashire, 2 Ph. 657. 
 
 It will be observed that the concluding words of the 27th 
 sect, of Lord Cran worth's Act, " Every trustee appointed 
 by the Court of Chancery, either before or after the pas- 
 sing of this Act, shall have the same powers, authorities, 
 and discretions, and shall in all respects act as if he had 
 been originally nominated as trustee by the deed, will, or 
 other instrument creating the trust," are retrospective, 
 and get rid of the former doctrine that new trustees ap- 
 pointed by the Court could not exercise certain of the 
 powers entrusted to original trustees : Hall v. Dewes, Jac. 
 189 ; see Gole\. Wade, 16 Ves. 27 ; Coox>er v. Macdonald, 
 35 Bea. 504. 
 
NEW TRUSTEES — REMOVAL OF TRUSTEES. 315 
 
 Trustees appointed by the Court in an action are per- Powers of 
 mitted to exercise discretionary powers : Bartley v. ajmohrted 
 Bartley, 3 Dr. 385. i° a «a"se. 
 
 But not to appoint new trustees : Holder v. Durhin, 
 11 Bea. 594 ; but see in the case of charities, Attorney- 
 General V. Mayor of Coventry, Seton, 500. 
 
 The costs of appointments, including those of retiring Costs of 
 trustees, are chargeable on the trust estate : Green,- ^^"'"f' 
 wood V. ■ Wakeford, 1 Bea. 581 ; ForsJiaw v. Higginson, new trus- 
 20 Bea. 486; Gardiner v. Downes, 22 Bea. 395 ; Garter 
 V. Sebnght, 26 Bea. 376. 
 
 Such costs do not include those of attested copies of the 
 trust deed, which the new trustee is not entitled to 
 demand : Warter v. Anderson, 11 Hare, 301. 
 
 Under 33 & 34 Vict., c. 97, a deed appointing new Stamps, 
 trustees must bear a 10s. stamp; but if there be more 
 than one deed, only one of them need be stamped (24 & 
 25 Vict., c. 91, s. 30), and see Foley v. Commissioners of 
 Inland Revenue, L. R. 3 Ex. 263. See further as to the 
 practice under the Trustee Acts, Morgan and Chute, 
 p. 76 et seq. ; Carson's Shelford's Real Prop. Stat., pp. 
 647—685, Seton, pp. 503—594. 
 
 Removal of Trustees. 
 
 If a trustee become interested in an estate, by pur- EemoTat of 
 
 chasing, or taking a lease of it, or otherwise, he must have purchasing 
 
 ceased to be a trustee, in order to take the benefit (ante, trust 
 
 esta.t6 
 
 p. 185), and if he have not so ceased, he may be removed : 
 Exp. Reynolds, 5 Ves. 707 ; Re Phelps, 9 Mod. 357 ; 
 Passingham v. Sherborn, 9 Bea. 424. 
 
 The 32nd section of the Trustee Act does not give the Court 
 Court jurisdiction on petition under the Act to remove a °g°°°e 
 trustee who is desirous of continuing in the trust : Re under 
 Blanchard, 3 D. F. & J. 131 ; Re Garty, 10 L. T. N. S. "' 
 331 ; Re Dennis, 12 W. R. 575. 
 
 Nor will the Court consider the question of the validity Nor en- 
 of the trust deed ; but, in appointing new trustees under "^"^ ^ *" 
 
316 
 
 REMOVAL OP TRUSTEES. 
 
 validity of 
 trust deed. 
 
 Action 
 to define 
 rights. 
 
 Trustees 
 disagreeing 
 ■with bene- 
 ficiaries : 
 
 ■with co- 
 trustee. 
 
 Corrup- 
 tion. 
 
 Dishonesty. 
 
 Destroying 
 trust pro- 
 perty. 
 
 Acquies- 
 cence by 
 delay. 
 
 Bond fide 
 refusal to 
 exercise 
 discretion. 
 
 Refusal 
 to upset 
 trust. 
 
 Scandal. 
 
 it, the rights of parties -will not be otherwise affected : 
 Re Matthews, 26 Bea. 463 ; and see Attorney-General 
 V. Ward, 6 Hare, 477. 
 
 But, by section 53 of the Act, the Court may postpone 
 making any order until the rights of the petitioner have 
 been ascertained by an action : see Re Carpenter, Kay, 
 418 ; Re Gollinson, 3 D. M. & G. 409 ; Re Weeding, 
 4 Jur. N. S. 707. 
 
 Disagreement between trustees and cestuis que trust is 
 not a ground for removal by the Court: Forster v. Davies, 
 4 D. F. & J. 139; and see Attorney-General v. Chap- 
 man, 3 Bea. 255. 
 
 But if some of the trustees refuse to act with a co- 
 trustee, -who is in their opinion not dealing fairly, the 
 cestui que trust can obtain the removal of the latter : 
 Uvedale v. Ettrick, 2 Ch. Ca. 130. 
 
 Corrupt practices and malversations are good grounds 
 for removal by action : Mayor of Coventry v. Attorney- 
 General, 7 B. P. C. 235. 
 
 A trustee, who had absconded, after being charged with 
 forgery, was removed : Millard v. Eyre, 2 Ves. Jun. 94. 
 
 Trustees destroying the trust property may be removed, 
 and be ordered to bear the costs of appointing others : 
 Exp. Gh-eenhouse, 1 Madd. 92. 
 
 The removal of a trustee must be asked for within a 
 reasonable time : Attorney-General v. Cuming, 2 Y. & 
 C. C. C. 150. 
 
 A refusal by trustees for no corrupt motive to exercise 
 a purely discretionary power, is no reason for removing 
 them : Lee v. Young, 2 Y. & C. C. C. 532. 
 
 Nor was a refusal by the trustee of a request by the 
 settlor to take steps to rectify the settlement, under which 
 the settlor found that certain intended contingent interests 
 arose, held to be a ground for removal : O'Keeffe v. Cal- 
 thorpe, 1 Atk. 17. 
 
 In the pleadings of the plaintiff to remove a trustee, it 
 is not scandalous or impertinent to challenge every act of 
 the trustee as misconduct, nor to impute to him any 
 
REMOVAL OP TEUSTEBS. 217 
 
 corrupt motive, nor to allege that his conduct is the 
 vindictive consequence of some act of the cestui que 
 trust, or of some change in his situation : Portsmouth 
 V. Fellows, 5 Madd. 450. 
 
 But it is impertinent, and may be scandalous, to state 
 any circumstance as evidence of general malice or personal 
 hostility : Ibid.; and see Reeves v. Baker, 13 Bea. 436; 
 and Daniell, Prac. 290 et seq. 
 
 As to the removal of trustees on the ground of bank- Bank- 
 ruptcy, see ante, p. 209. "'^ °^" 
 
CHAPTER XXVIl. 
 
 EFFECT OF TRUSTEE'S BANKKUPTCY. 
 
 Tnist pro- 
 perty not 
 affected. 
 
 Order and 
 disposition 
 clause. 
 
 Trust pro- 
 perty not 
 "within 
 clause. 
 
 Principle 
 stated. 
 
 By the Bankruptcy Act, 1869, s. 15, property held by 
 the bankrupt in trust for any other person is not divisible 
 amongst his creditors. 
 
 But "all goods and chattels being, at the commence- 
 ment of the bankruptcy, in the possession, order, or dis- 
 position of the bankrupt, being a trader, by the consent 
 and permission of the true owner, of which goods and 
 chattels the bankrupt is reputed owner, or of which he 
 has taken upon himself the sale or disposition as owner," 
 are comprised in the property of the bankrupt divisible 
 among his creditors, with a proviso " that things in action 
 other than debts due to him in the course of his trade or 
 business shall not be deemed goods and chattels within 
 the meaning of this clause " : s. 15, subs. 5. 
 
 It is held that a trustee being the true as well as the 
 rightful owner, trust property is not within this clause : 
 Copeman v. Gallant, 1 P. W. 314 ; Exj). Martin, 19 Ves. 
 491 ; Joy v. Campbell, 1 Sch. & L. 328 ; Finkett v. Wright, 
 2 Hare, 120 ; Murray v. Pinkett, 12 CI. & F. 764 ; Re 
 Bankhead, 2 K. & J, 560 ; Pennell v. Befell, 4 D. M. & G. 
 S72;'i;xp. Geaves, 8 D. M. & G. 291; Exp. Barry, 17 Eq. 
 113 ; Exp. Cox, 1 Ch. D. 302. 
 
 " Whatever be the nature of the investment (as shares 
 held by a bankrupt chairman in trust for his company), 
 into which the trust money invested by a trustee can be 
 traced, unless the cestuis que trust are affected by the 
 consent which the statute contemplates for the creation of 
 
EFFECT OF TKUSTEE's BANKRUPTCY. 219 
 
 reputed ownership, it is clear that the money so invested 
 does not pass to the assignees, but remains the property 
 of the person for whom it was originally held : Great 
 Eastern Railway Go. v. Turner, 8 Ch. 149, 153 ; Re Cald- 
 well, 13 Eq. 188. 
 
 But if the foi'ms of a trust are gone through merely in Fraud, 
 order to conceal the true ownership, the exemption of 
 trust property from the order and disposition clause is 
 barred : Ibid. ; and see Exp. Watkins, 2 Mont. & A. 348 ; 
 Exp. Ord, 2 Mont. & A. 724. 
 
 Proof against Bankrupt Trustee. 
 
 The remedy of the cestui que trust against a bankrupt Breach of 
 trustee who has been guilty of a breach of trust, as where ing stock, 
 stock has been improperly sold, is to prove either for the 
 sale moneys or for the price of the stock at the date of the 
 bankruptcy: Exp. Shakeshaft, 3 B. C. C. 197; Exp. Wat- 
 son, 2 V. & B. 414 ; Exp. Gurner, 1 M. D. & D. 497; Ex23. 
 FaircMld, 1 G. & J. 221 ; Exp. Montefiore, Be G. 171, 
 9 Jur. 562. 
 
 Interest may also be proved for : Bick v. Motly, 2 M. Interest. 
 & K. 312 ; Moons v. Be Bernales, 1 Russ. 301. 
 
 If the money be traced into a mortgage, the cestui que Mortgage. 
 trust may prove for the debt and also take the benefit of 
 the mortgage pro tanto : Exp. Geaves, 25 L. J. Bk. 53 ; 
 Exp. Biddulph, 3 Be G. & Sm. 587. 
 
 Where the trust was to accumulate income, the whole Trust to 
 amount of the accumulations which ought to have been fat™"" 
 made is provable : Dornford v. Bornford, 12 Ves. 127. 
 
 Where the trustee is also equitable tenant for life, his Trustee's 
 interest is available for those in remainder in priority impounded, 
 to other creditors : Exp. Turpin, 1 D. & C. 120 ; Exp. 
 King, 2 M. & A. 410 ; Jacubs v. Rylance, 17 Eq. 
 341. 
 
 But if the trustee is legal tenant for life of certain of Not if legal 
 the property settled by the will, his life estate is not liable ''^^ ^^*'**^" 
 
220 
 
 EFFECT OF TRDSTEe's BANKRUPTCY. 
 
 Set-off. 
 
 Breach of 
 trust a 
 simple con- 
 tract debt. 
 (32 t 33 
 Vict, c 46. 
 
 Cestui que 
 trust may 
 petition. 
 
 One of 
 several 
 trustees 
 bankrupt. 
 
 Where all 
 
 trustees 
 
 bankrupt. 
 
 Proof 
 against 
 firm of 
 bankrupt 
 trustee. 
 
 Effect of 
 discharge. 
 
 Removal. 
 
 for his breach of trust with respect to other part of the 
 property : Fox v. Buckley, 3 Ch. D. 511 ; and see Egbert 
 V. Butter, 21 Bea. 560. 
 
 As to the right of the bankrupt to set off his interest 
 against the debt arising from the breach of trust, see Exp. 
 Bishop, 8 Ch. 718; Exp. Stone, ibid. 914. 
 
 The debt arising from a breach of trust is a simple con- 
 tract debt : LocJchart v. Eeilly, 1 D. & J. 464 ; but the 
 importance of this point is for many purposes destroyed 
 by 32 & 33 Vict. c. 46, which places debts of all kinds 
 upon an equal footing. See post, p. 332. 
 
 The debt occasioned by a breach of trust will now be a 
 good petitioning creditor's debt : Bankruptcy Act, 1869 
 (32 & 33 Vict. c. 71), s. 6 ; and see Exp. Sturt, 13 Eq. 
 309. 
 
 Where one of several trustees becomes bankrupt, the 
 cestui que trust may prove against his estate, leaving him 
 to recoup himself against his co-trustees : Exp. Shakeshaft, 
 3 B. C. C. 197 ; Exp. Beilby, 1 G. & J. 175. 
 
 If all are bankrupt, proof to the extent of the debt will 
 be allowed against all their estates : Keble v. Thompson, 
 3 B. C. C. 112; Exp. Poulson, De G. 79. 
 
 The right of proof against the assets of a bankrupt firm 
 to which the trustee has lent trust money, extends to the 
 estate, joint or separate, of all who have participated in 
 the breach of trust : Exp. Barnewall, 6 D. M. & G. 795 ; 
 Exp. Adamson, 8 Ch. D. 807, 820. 
 
 As to following trust money lent to a bankrupt firm by 
 a trustee not a partner in it, see post, p. 325. 
 
 The discharge of a bankrupt trustee does not release 
 him from the consequences of his breach of trust : 
 Bankruptcy Act, 1869, s. 49. As to the effect of his 
 bankruptcy on the liability of the trustee to attachment 
 for non-payment of money ordered to be paid into Court, 
 see post, p. 278. 
 
 As to the removal of trustees on the ground of bank- 
 ruptcy, and the appointment of new trustees in the place 
 of bankrupt trustees, see ante, p. 209. 
 
CHAPTER XXVIII. 
 
 TENANT FOR LIFE'S RIGHT TO POSSESSION. 
 
 The trustee has no right to keep the cestui que trust 
 out of possession of the estate : Brown v. How, Barnar- 
 diston, 357. 
 
 It is not of course that possession is given to the tenant where wiu 
 
 for life under a devise. The intention of the testator is shows con- 
 trary in- 
 to be considered, and where the cestui que trust for life tention. 
 
 was a fcTne covert, and two of the trustees were entitled 
 in remainder, it was held that, as the testator thought fit 
 to give the management to them, and not to entrust the 
 estate to the permanent management of the cestui que 
 trust, it was not for the Court to take it away from the 
 trustees : Tidd v. Lister, 5 Madd. 429 ; but see Horner 
 V. Wheelwright, 2 Jur. N. S. 367, where there was sepa- 
 rate use, and Hoskins v. Campbell, W. N. 1869, 59, where 
 the married woman was separated from her husband. 
 
 But in the case of a family mansion, or where it appears Personal 
 to be for the benefit of the cestui que trust that he should iSded.'' 
 occupy the property personally, possession should be given 
 to him: Tidd v. Lister, supra. 
 
 A cestui que trust in possession may distrain and serve Powers of 
 notices to quit upon tenants : ParJcer v. Manning, 7 T. ^^^!'^ ^°^ 
 E. 537 ; Blake v. Foster, 8 T. R. 487 ; Jones v. Phipps, possession. 
 L. K 3 Q. B. 567. 
 
 And when the cestui que trust who is entitled to Gross mis- 
 receive the rents and profits is in possession, the Court mentby 
 will not take that receipt away, unless there has been tenant for 
 some gross mismanagement by the cestui que trust : 
 AttorTiey-General v. Gore, Barnard 145, 150 ; and see 
 

 KIGHT OF TENANT FOR LIFE TO POSSESSION. 
 
 Trustee 
 turning out 
 cestui que 
 irust. 
 
 Where 
 charges to 
 be kept 
 down. 
 
 Where 
 tenant for 
 life wrong- 
 fully fells 
 timber. 
 
 Uight to 
 vote. 
 
 Perrot v. Perrot, 3 Atk. 94 ; Garth v. Cotton, I Ves. 
 Sen. 555. 
 
 Trustees who colluded with the remainderman to turn 
 ihe tenant for life out of possession, and received the rents 
 from the tenants, some of whom had failed to pay, were 
 decreed to make good the whole rents which the tenants 
 were hound to pay : Kaye v. Powel, 1 Ves. Jun. 408. 
 
 Where there are payments to he made by the trustees, 
 the tenant for life may he let into the receipt of the rents 
 upon terms. Thus, where annuity deeds, granting a term 
 to trustees, with powers of distress and entry, were 
 executed by the tenant for life, he was allowed to take 
 the rents as agent, and in the names, of the trustees, but 
 so that they might re-enter if the annuitants became in 
 arrear: Jenkins v. Milford, 1 J. & W. 62'.); and see 
 Hoskins v. Campbell, W. N., 1869, 59. 
 
 Or upon terms of his giving sufficient security : Baylies 
 V. Baylies, 1 Coll. 547. In Blalce v. Bunbury, 1 Yes. Jun. 
 514, it will be seen that the tenant for life himself had 
 the legal estate. 
 
 An equitable tenant for life permitted by the trust to 
 receive the rents and profits, was allowed after a wrongful 
 fall of timber to retain possession upon an imdertaking to 
 cut no more without the consent of the trustees : Denton 
 V. Benton, 7 Bea. 388 ; but see Pugh v. Vaughan, 12 
 Bea. 517, in which, however, the trust was to "pay" the 
 rents to the tenant for life. See further as to waste by 
 tenant for life, notes to Garth v. Cotton, 1 W. & T. L. 
 C. Eq. 751. 
 
 The cestui que trust, whether in possession or not, is 
 entitled to vote for members of Parliament: 6 Vict. c. 18, 
 s. 74 ; and see Gainsford v. Freeman, L. R. 1 C. P. 129 ; 
 Trotter v. Watson, L. E. 4 G. P. 434 ; Wallis v. Birks, L. 
 R. 5 C. P. 222. And see Rogers on Elections, 35—40. 
 
 But the trustee, as having the legal estate, votes for 
 coroners : Reg. v. Day, 3 E. & B. 859. 
 
CHAPTER XXIX. 
 
 CONVEYANCE BY TRUSTEES BY ORDER OF CESTUIS 
 QUE TRUST. 
 
 Trustees who hold the trust property for beneficiaries Duty of 
 who are absolutely entitled must convey or transfer as co°^eT*° 
 they direct, and if they refuse without sufficient reason 
 must pay the costs of an action to compel them so to do : 
 Jones V. Lewis, 1 Cox, 199 ; Willis v. Hiscox, 4 M. & Or. 
 197 ; Hainpshire v. Bradley, 2 Coll. 34. 
 
 When the equitable owner has conveyed his interest, ^fter sale 
 the trustee must clothe the grantee with the legal title : ^y ''^''*"^ 
 Angier v. Stannard, 3 M. & K. 566. 
 
 If cestuis que trust are to consent to a sale, the trustee Upon sale 
 must not, without cause, refuse to sell and convey to a pur- *^ ooni>nee 
 chaser proposed by them : Pcdairet v. Carew, 32 Bea. 564. ficiaries. 
 
 If, notwithstanding the loss of a document supposed to Where 
 have accompanied the deed vesting the estate in the j^^V'' 
 trustee, nothing appeared to show that the beneficial in- apparent 
 terest was less than absolute, the trustee was held bound 
 to convey at the request of the beneficiary: Penfold v. 
 Bouch, 4 Ha. 271. 
 
 A married woman entitled to her separate use, and not Separate 
 restrained from anticipation, may call upoa the trustees to "^*' 
 convey to her husband or otherwise : Thorhy v. Yeats, 
 1 Y. & C. C. C. 438 ; and see post, 257. 
 
 Under a devise to a trustee for a female's separate use 
 without power of anticipation, with remainder to the use 
 of her children as tenants in common in tail, with re- 
 mainders over, the woman on becoming discovert can 
 compel a conveyance ; for the trustee would be protector 
 
224 
 
 CONVEYAKCE OF THE LEGAL ESTATE. 
 
 luquiries 
 by trustee. 
 
 Incorrect 
 recitals in 
 deed. 
 
 Conveyance 
 according 
 
 to title. 
 
 Several 
 convey- 
 ances. 
 
 Misdescrip- 
 tion. 
 
 Form of 
 action by 
 purchaser. 
 
 Counsel's 
 advice. 
 
 Bare trus- 
 tee. 
 
 of the settlement only so long as the legal estate is re- 
 quired to be in him, and the trust ceases when she becomes 
 sui juris and discovert : Buttanshaw v. Martin, Johns. 89. 
 
 The trustee must of course inquire whether the title of 
 the cestuis que trust is complete : Goodson v. Mlisson, 
 3 Russ. 583. 
 
 And he must show that he has tried to discover 
 whether the title is affected by transactions which might 
 arouse suspicion ; and if he refuses to convey without in- 
 quiry, and the title was in fact good, he is within the rule 
 above stated as to his liability to the costs : Firmin v. 
 Pulham, 2 De G. & Sm. 99 ; Hannah v. Hodgson, 30 
 Bea. 19 ; Kin^ v. Kin^, 1 D. & J. 663 ; but see Campbell 
 V. Home, 1 Y. & C. C. C. 664. 
 
 Trustees are justified in refusing to execute a deed con- 
 taining incorrect recitals, but not in refusing to execute 
 one containing no recitals in a case where everyone in- 
 terested concurs : Hartley v. Burton, 3 Ch. 368. 
 
 They cannot be asked to convey the fee to a mere tenant 
 in tail : Saunders v. Nevil, 2 Vern. 428. 
 
 Nor to convey the estate piecemeal at various times : 
 Goodson V. Mlisson, 3 Russ. 594. 
 
 Or by a description other than that by which it was con- 
 veyed to them : Ibid. 
 
 It seems that a purchaser may obtain the legal estate 
 from the trustee in an action against him without joining 
 the beneficiaries : Goodson v. Ellisson, 3 Russ. 583 ; Hol- 
 ford V. Fhipps, 3 Bea. 434. 
 
 As to the effect of acting upon counsel's opinion in re- 
 fusing to convey, see post, p. 232. 
 
 It would seem that a trustee to whose office no duties 
 were originally attached, but who would on the requisition 
 of his cestuis que trust be compellable in equity to convey 
 the estate to them or by their direction, is a " bare trustee" 
 within the meaning of the Land Transfer Act, 1875 (38 
 & 39 Vict. c. 87), s. 48 : Christie v. Ovington, 1 Ch. D. 
 279 ; and see further as to the meaning of the term " bare 
 trustee," Lysaght v. Edwards, 2 Ch. D. 499. 
 
CONVEYANCE BY TRUSTEES. 2,^5 
 
 A vendor of real estate, who died before conveyance and 
 receipt of the purchase-money, was held not to be a " bare 
 trustee " within the same section, and his heir-at-law and 
 not his legal personal representative to be the proper 
 person to convey : Morgan v. Swansea Urban Sanitary 
 Authority, W. N., 1878, 179. 
 
 And if the heir is an infant, there must still be an 
 action in such a case to declare the infant a trustee, and 
 for a vesting order : Ihid. 
 
CHAPTER XXX. 
 
 CUSTODY OF TITLE-DEEDS. 
 
 Uiglit of 
 equitable 
 tenant for 
 life. 
 
 Where 
 rents 
 
 received by 
 trustees. 
 
 Where 
 taken out 
 of country. 
 
 Order to 
 bring deeds 
 in on mis- 
 conduct. 
 
 Where 
 action 
 pending. 
 
 Misuse of 
 deeds to 
 obtain 
 
 As an incident to the possession of tlie estate, the cestui 
 que trust for life has a right to retain the title-deeds^ 
 unless it is suggested that they are endangered by re- 
 maining in such custody : Taylor v. Sparrow, 4 Giff. 706 ; 
 Langdale v. Briggs, 8 D. M. & G. 416 ; Leathes v. Leathes, 
 5 Ch. D. 221. 
 
 But if the trustees are to receive the rents and pay 
 them to the tenant for life, they may retain the deeds : 
 Garner v. Hannyngton, 22 Bea. 627 ; and see Stanford 
 V. Roberts, 6 Ch. 310. ' 
 
 Where the tenant for life had on one occasion taken the 
 deeds out of the jurisdiction, but afterwards, when ordered, 
 brought them into Court, they were not delivered out to 
 him again': Jenner v. Morris, 1 Ch. 603. Turner, L. J., was 
 iaclined to allow their delivery upon security being given 
 by the tenant for life : lb. 
 
 In a case where the equitable tenant for life was 
 allowed to remain in possession upon terms after wrong- 
 fully cutting timber, he was also ordered to bring the 
 deeds into Court : Denton v. Denton, 7 Bea. 388. 
 
 Where the estate is subject to a pending action, the 
 Court will not part with the deeds in favour of the equit- 
 able tenant for life if it sees reason for retaining them : 
 Stanford v. Roberts, 6 Ch. 307 ; Leathes v. Leathes, 5 Ch. 
 D. 221. 
 
 Whether a trustee who delivers deeds to a tenant for 
 life, and so enables him to make a mortgage in fee, is 
 
CUSTODY OF TITLE-DEEDS. 227 
 
 liable to those in remainder who are damnified by such mojtgage 
 
 in IC6 
 
 an act, see Evans v. Bicknell, 6 Ves. 174. 
 
 Any person entitled to a vested interest in remainder Action by 
 may bring an action against the tenant for life, for the man for 
 sole purpose of production and inspection of deeds in his Production, 
 possession : Davis v. Bysart, 20 Bea. 414. 
 
 But the Court has a discretion as to granting such 
 relief : Lempster v. Pomfret, Amb. 154, 1 Dick. 2.38' ; 
 Davis V. Dysart, supra. 
 
 And the relief will not be granted if the title of the 
 remainderman is not clear : Pennell v. Dysart, 27 Bea. 
 542. 
 
 Trustees must produce all cases and opinions of counsel Cases and 
 (not intended only for their own defence) to the cestui que "P""-'"'^- 
 trust : Wynne v. Humberston, 27 Bea. 421. 
 
 As to the liability of trustees for the safety of securities 
 in the custody of their co- trustees, see ante, p. 100. 
 
CHAPTER XXXI. 
 
 DUTY OF TRUSTEES TO KEEP ACCOUNTS AND FURNISH 
 INFORMATION. 
 
 Accounts 
 must be 
 ready ; 
 
 must not 
 Ire mixed 
 up with 
 other 
 accounts. 
 
 Costs on 
 refusal to 
 account. 
 
 Discretion 
 as to costs. 
 
 Trustees must be constantly ready with their accounts : 
 Hardwiclce v. Vernon, 14 Ves. 510 ; Freeman v. Fairlie, 
 3 Mer. 29, 43. 
 
 Such accounts must be clear and distinct accounts 
 referring to the trust property ; and if the trustee mix the 
 trust accounts with his own, he cannot therefore refuse to 
 produce his own books ; and if he have partners, and 
 they have allowed him to use the partnership books for 
 the purpose, or have used any of the trust-money in their 
 trade, the partnership books must be produced : Freeman 
 V. Fairlie, supra. 
 
 If a trustee has allowed his co-trustee to keep accounts, 
 which turn out to be falsified, they will bind him : Horton 
 V. Broclclehurst, 29 Bea. 504. 
 
 If the inability or refusal of the trustee to account 
 renders a suit necessary, he must pay the costs of it : 
 Pcarse v. Green, 1 J. & W. 135 ; Netuton v. Asliew, 11 
 Bea, 145, 152 ; Jefferys v. Marshall, W. N., 1870, 227. 
 
 The matter of costs, however, is within the discretion 
 of the Court, and if there has been no actual misconduct, 
 the Court may limit the payment of costs to the period of 
 the bringing the action, or of the hearing, or otherwise 
 according to the circumstances of the case : Springett v. 
 Dashwood, 2 Giff. 521 ; 7 Jur. N. S. 93 ; and see Ottley 
 V. Gilby, 8 Bea. GO 2 ; Thompson v. Clive, 11 Bea. 475 ; 
 While V, Jackson, 15 Bea, 191, 
 
ACCOUNTS — FUENISHING INFORMATION. 2,2!) 
 
 So where there was a refusal to account except upon Refusal 
 
 . IP unless ex- 
 
 the terms of being paid " costs,, charges, and expenses lor penses 
 all necessary correspondence, journeys, and attendances " ^ ■ 
 for various purposes, the trustee was ordered to pay the 
 costs up to the hearing : Underwood v. Trotuer, W. N., 
 1867, 83. 
 
 By 15 & 16 Vict., c. 86, s. 54, where accounts are re- Directions 
 quired to be taken, the Court may give special directions taking 
 as to the mode of taking and vouching them ; particularly a^eouits. 
 that books of account may be taken as pvimd facie evi- 
 dence of the truth of their contents. 
 
 Under this enactment, old trust accounts to which the Admitting 
 cestui que trust had had access, were allowed to be taken counts 
 as primd facie correct : Banks v. Cartwright, 15 W. R. ^^l^™* 
 417. ^™ ■ 
 
 It is also the duty of trustees to afford to their cestuis FurnisMng 
 que trust accurate information as to the condition and ^^^^_ 
 disposition of the trust property : Clarke v. Ormonde, 
 1 Jac. 120 ; Walker v. Symonds, 3 Swans. 58. 
 
 If trustees withhold information as to the nature of the 
 title of their cestuis que trust, so that the latter are unable 
 to put into force rights which they have against third 
 parties, the trustees must recoup them the loss occasioned 
 by their neglect to give the necessary information : Bur- 
 rows V. Walls, 3 D. M. & G. 233. 
 
CHAPTER XXXII. 
 
 PAYMENT BY TRUSTEES TO CESTUIS QUE TEUST. — RE- 
 LEASES. — INDEMNITY. — LIABILITY FOR CO-TRUSTEES. 
 — DE FACTO TRUSTEES. 
 
 Trustees are justified in refusing to pay over the 
 trust fund to persons claiming it beneficially, or to those 
 claiming under them, if by so doing they would incur a 
 responsibility; and unless the motive of the trustees is 
 obviously vexatious, they have a right to the protection 
 of the Court in the execution of the trust, and if a 
 reasonable question arises as to the distribution of the 
 property, to obtain that protection without being liable 
 for costs : Taylor v. GlanvUle, 3 Madd. 178 ; Curteis v. 
 Candler, 6 Madd. 123 ; Ooodson v. Ellisson, 3 Euss. 583. 
 Trustee's This right to costs does not apply to an appeal by the 
 
 appeal. trustees : Rowland v. Morgan, 13 Juv. 23 ; in the case 
 of bankruptcy trustees, JtJxp. Angerstein, 9 Ch. 479 ; and 
 ofiicial liquidators, Buckley, 227. 
 Fraudulent A trustee who on untenable grounds withholds trust 
 money from his cestui que trust, may commit what in 
 equity may be considered a fraud, without being charge- 
 able with personal fraud : Thortison v. Eastwood, L. R 2 
 App. Ca. 215. 
 Refusal If a trustee refuses to pay without the sanction of the 
 
 ancTof""' Court, merely from ignorance and not from a bad motive, 
 law. he will not be made to pay costs : Knight v. Martin, 1 R. 
 
 & My. 70. 
 
 So, it being proved that trustees did not know the 
 Scotch law, by which others than those to whom they paid 
 were entitled, they were held not to be liable for paying 
 
 ■withhold 
 ing. 
 
PAYMENT TO CESTUIS QUE TRUST. 231 
 
 to those entitled by English law : Leslie v. Baillie, 2 Y. 
 & C. C. C. 91. 
 
 An absolute discretion to postpone payment of shares of Discretion 
 
 ■ 1 • 1 T p 1 -1 *° postpone 
 
 residue may be good against the creditors of the residuary payment, 
 legatees : see Chambers v. Smith, L. K 3 App. Ca. 795. 
 
 A trustee, paying on an erroneous supposition that the Recovery of 
 recipient is immediately entitled, may recover the amount in error.^ 
 out of future income or other trust property of the person 
 so wrongfully paid : Livesey v. Livesey, 3 Russ. 287 ; Dibbs 
 V. Goren, 11 Bea. 483 ; Eaves v. Hichson, 30 Bea. 
 136. 
 
 And if a share in respect of which the mistake was Against 
 made has been assigned for value, the assignee's interest ^Tm^^ 
 is also subject to recoup the money : Dibbs v. Goren, 11 
 Bea. 483 ; and see White & Tudor, L. C. Eq., pp. 799 
 et seq. 
 
 As to the refunding of legacies by executors and creel i- Refunding 
 tors, see Wms. Exors., 1450 et seq. ; Lewin, p. 312 ; amd ^^'^'^^' 
 see Jervis v. Wolferstan, 18 Eq. 18, and Rogers v. Ingham, 
 3 Ch. D. 351. 
 
 A cestui que trust who has received more money, or Refunding 
 more income, than he is entitled to, is liable at any dis- otheTtene- 
 tance of time at the suit of another cestui que trust, to Aoiaries. 
 refund the difference: Harris v. Harris, 29 Bea. 110; 
 Baynard v. Woolley, 20 Bea. 583 ; Davies v. Hodgson, 
 25 Bea. 177 ; Griffiths v. Porter, 25 Bea. 236 ; Prowse v. 
 Spurgin, 5 Eq. 99 ; Jervis v. Wolferstan, 18 Eq. 18. 
 
 But where one of several legatees has received his share 
 the others cannot call upon him to refund it if the estate 
 is subsequently wasted : Peterson v. Peterson, 3 Eq. Ill ; 
 secus, if previously wasted, Ibid. 
 
 As to overpayment in a suit, see Davis v. Frowd, 1 M. 
 & K. 200 ; Sawyer y. Birchmore, 2 M. & Cr. 611 ; Williams 
 Exors., 1450 et seq. 
 
 Where, in contravention of the rule in Howe v. Lord Recovering 
 Dartmouth {ante, p. 91 et seq), trustees have paid the ^.^J™?®"^ 
 tenant for life the entire income of wasting property, they wasting 
 may have an inquiry in the same suit in which they are P"^"^®'''"'- 
 

 PAYMENT TO CESTUIS QUE TRUST. 
 
 Misrepre- 
 sentation 
 by trustee 
 of rights of 
 cestui que 
 trust. 
 
 Acting an 
 opinion of 
 counsel no 
 excuse. 
 
 Costs in 
 sucli case. 
 
 Payment to 
 
 tiye of 
 person 
 entitled. 
 
 To bene- 
 ficial 
 
 appointees 
 under a 
 power. 
 
 To trustees 
 for such 
 appointees. 
 
 To execu- 
 tors ap- 
 pointed by 
 feme covert 
 under 
 general 
 power. 
 
 made liable, to recover the amount overpaid to the tenant 
 for life, from his estate : Hood v. Clapham, 19 Bea. 90. 
 
 If, on the footing of a supposed illegitimacy, the title of 
 the cestui que trust is disputed and denied by the trustee, 
 and the former is thereby induced to accept from the 
 trustee a smaller sum than that to which he is entitled 
 under the will, and by deed to release the trustee from the 
 payment of his share, equity will not allow such a trans- 
 action to stand : Thomson v. Eastwood, L. E. 2 App. 
 Ca. 215. 
 
 Trustees are not excused from the consequences of a 
 wrong payment because they have acted on the advice of 
 counsel, however eminent : Doyle v. Blake, 2 Sch. & L. 
 243 ; Peers v. Geeley, 15 Bea. 211 ; Devey v. Thornton, 9 
 Ha. 232 ; Re Knight, 27 Bea. 45, 49 ; Boulton v. Beard, 
 3 D. M. & G. 611 ; and see Re Gull, 20 Eq. 561 ; and 
 Rogers v. Ingham, 3 Ch. D. 351. 
 
 But if they have acted bond fide, costs would probably 
 not be ordered against them in such a case : Angler v. 
 Stannard, 3 M. & K. 566. 
 
 Trustees must not refuse to pay because the beneficiary 
 to receive is dead, and the money is receivable by his 
 personal representative, who might misapply it : Smith v. 
 Bolden, 33 Bea. 262 ; Hayes v. Oatley, 14 Eq. 1. 
 
 Where the donee of a general power appoints the 
 property to certain persons beneficially, the original 
 trustees are bound to act in carrying the appointment 
 into execution : Re PhilbricJc, 34 L. J. Ch. 368 ; and see 
 Re Hoskin, 5 Ch. D. 229. 
 
 But if the donee appoints the propertyto trustees, those 
 trustees are entitled to receive the property to be held 
 upon the trusts declared by the donee : Re Philh'ick, 34 
 L. J. Ch. 369 ; Hayes v. Oatley, 14 Eq. 1 ; and see Re 
 Hoskin, supra. 
 
 Where a married woman makes a will under a power, 
 and appoints executors, as she could make the will only 
 under the power, and could have appointed executors only 
 for the purpose of administering the property, she must be 
 
PAYMENT TO CESTUlS QUE TRUST. 233 
 
 considered to have appointed the property to the executors 
 as trustees, who therefore take- away from the original- 
 trustees the duty of administering the fund: Be Philbrick, 
 34 L. J. Ch. 368 ; Re HosJcin, supra ; and see Piatt v. 
 Routh, 3 Bea. 257, 6 M. & W. 756, 791, 10 CI. & F. 257. 
 
 Where there has been an obviously good appointment Appomt- 
 trustees must not refuse to pay under it : Campbell v. ™entjj)W 
 
 J^ •' -^ fane good. 
 
 Home, 1 Y. & C. C. C. 664. 
 
 Where persons claim in default of appointment, trustees Evidence of 
 
 are entitled to evidence that no appointment has been appoint-" 
 
 made : Re Wylly, 28 Bea. 458. ment. 
 
 But information to that effect by the solicitor to the 
 parties is sufficient: Re Gull, 20 Eq. 561. 
 
 In these cases of payments by trustees to executors or Receipt 
 
 other trustees, a simple receipt without a release is all sufficient. 
 they are entitled to : Re Foligno, 32 Bea. 131 ; Re 
 Hoskin, 5 C. D. 229 ; see mfra, p. 236. 
 
 Trustees may pay on a prmid facie title, unless they Payment" 
 
 have notice of a better title : Cothay v. Sydenham, 2 B. ™^™«<^ 
 
 C. C. 391. -^""^ 
 
 Unless the deed, under which the payment is to bs made. Title un- 
 
 is on the face of it void, e.g., as a fraud upon a power, the i^v^^'^^i 
 
 -^ ^ by action. 
 
 trustee must not refuse to account to the appointees 
 under it, until it is upset by a suit for that purpose : 
 Beddoes v. Pugh, 26 Bea. 407, 417. 
 
 Of course notice of a fraud intended to be committed by Notice of 
 the receiving trustee justifies non-payment : Sheridan v. i''*^'''^'^'! 
 Joyce, 7 I. Eq. R. 115. 
 
 If a person gives notice to trustees to pay to him Calling on 
 in respect of a charge, and when told to make good his °'|'?,^'^^ *" 
 claim in a Court, he neglects to do so, the trustees may claim, 
 pay to the cestui que trust: Lonergan v. Stourton, 11 
 W. K 984. 
 
 It has been held, that where a person is absolutely Payment to 
 entitled to a money payment, payment to a trustee for *™^*'^^ ^"'^ 
 him is a wrongful payment : Pritchard v. Langher, titled. 
 2 Vern. 197 ; and see Baldwin v, Billi/ngsley, 2 Vern. 
 539. 
 
£34 
 
 paymekt to cestuis que tetjst. 
 
 Payment of 
 small sums 
 without 
 administra- 
 tion : 
 
 or under- 
 taking. 
 
 Declaratory 
 decree 
 ■without 
 conse- 
 quential 
 directions. 
 15 &16 
 Tict. 0. 86, 
 ». 60. 
 Construc- 
 tion of 
 section. 
 
 Future 
 riglits. 
 
 Contingent 
 rights. 
 
 Eights of 
 persons 
 under dis- 
 ability. 
 Duty after 
 notice of 
 
 ment. 
 
 Assignee's 
 mode of 
 securing 
 fund. 
 
 Inquiry by 
 
 It seems that trustees would be justified in paying 
 shares of deceased residuary legatees, each share being 
 under £20, or thereabouts, to their husbands, wives, or 
 next of kin, without taking out administration : Hinings 
 V. Hinings, 2 H. & M. 32 ; Re Jones, W. N., 1866, 65 ; 
 Re Ranking, W. N., 1868, 243 ; Callendar v. Teasdale, 3 
 W. E. 289. 
 
 And without any undertaking to apply such sums as 
 assets of the intestate if called upon to do so : King v. 
 Isaacson, 9 W. R. 369. 
 
 Under s. 50 of 15 & 16 Vict., c. 86, the Court will 
 declare the rights of parties in an action which does not 
 seek consequential directions. 
 
 This enactment has been held not to apply where no 
 consequential relief could be given : Jackson v. Turnley, 1 
 Drew. 617 ; Rooke v. Kensington, 2 K. & J. 753 ; Bristoiu 
 V. Whitmore, 4 K. & J. 743. 
 
 But this view has been considered to be too narrow : 
 Cox V. Barker, 3 Ch. D. 370. 
 
 Future reversionary or contingent rights will not be 
 declared under the section : Langdale v. Briggs, 8 D. M. 
 & G. 391, 428 ; Qarlick v. Lawson, 10 Hare, App. xv. ; 
 PenneU v. Bysart, 27 Bea.. 542 ; Bowling v. Bowling, 1 
 Ch. 613. 
 
 Nor will the Court affect the rights of persons under 
 disability : Wehb v. Byng, 8 D. M. & G. 633. 
 
 When trustees have received notice of assignments they 
 cannot require a release from the assignor before paying 
 the assignee, and they must not refuse payment if tho 
 acts of the beneficiary have raised mere equities in which 
 they are not concerned ; Re Foligno, 32 Bea. 131. 
 
 Those entitled by assignment of equitable interests can 
 obtain perfect security, besides giving notice, in three 
 ways ; by obtaining a distringas on the funds ; by having 
 their deed, if any, endorsed on the settlement ; or, by 
 obtaining a transfer of the funds into Court : Phipps 
 V. Lovegrove, 16 Eq. 80, 90, 
 
 New trustees are pot bound to inquire (for the Court 
 
PAYMENT TO CESTtiS QUE TEtJST. ^35 
 
 never does) of the old ones, whether they have received new trus- 
 
 4-ppq cia f-rt 
 
 notice of any incumbrance : Ibid. notices. 
 
 If a trustee is directed by the written authority of a Genuine- 
 cestui que trust to pay money to a third person, he should ^^^°j. ^f 
 see to the reality of the authority, for rights of parties are attorney, 
 not to be altered by the fraud of strangers : Ashby v. 
 Blackwell, 2 Ed. 299, 302. 
 
 So the trustee paying on manufactured .evidence, like a Forged 
 forged marriage certificate, is liable to pay again : Eaves titje. 
 V. Hickson, 30 Bea. 136 ; and see Bostock v. Floyer, 1 Eq. 
 26 ; Hopgood v. Parkin, 11 Eq. 74 ; Sutton v. Wilders, 
 12 Eq. 373, and ante, p. 142. 
 
 Trustees are authorised to pay on a power of attorney Power re- 
 given by a cestui que trust, unless they know that it is ^"^th. ^ 
 revoked by his death : 22 & 23 Vict., c. 35, s. 26 (Lord 
 St. Leonards' Act). 
 
 As to the difficulty which arises where the power of 
 attorney is given by a tenant for life, see JRe Jones, 3 
 Drew. 679, and Lewin, p. 311, n. (6). 
 
 It is now settled that a husband, entitled to a life Husband's 
 interest in the property of his wife, does not forfeit it in „ji^er 
 consequence of the dissolution of the marriage by reason settlement 
 of his own misconduct : Fitzgerald v. Chapman, 1 Cb. feited on 
 D. 563 ; Burton v. Sturgeon, 2 Ch. D. 318, overruling "J^^""^- 
 Jessop V. Blake, 3 Giif. 639, Swifi v. Wenman, 10 Eq. 
 15, and Fussell v. Dowding, 14 Eq. 421, and following 
 the principle of Evans v. Carrington, 2 D. F. & J. 
 481. 
 
 If a person has not been heard of for seven years, there PresumiJ- 
 is a presumption of law that he is dead ; and those who j'*"^^^ 
 found a right upon a person having survived a particular 
 period, must prove that fact affirmatively by evidence, 
 for that is not a presumption of law, but of evidence ; and 
 though there is also no presumption of law in favour of 
 life, an inference of fact may be drawn that a person 
 alive and in health at a given date was alive a short time 
 afterwards : Doe v. Nepean, 5 B. & Ad. 86, 2 M. & W. 
 894 ; Re PUne, 5 Ch. 139 ; Ee Lewes, 6 Oh, 356 ; Hick- 
 
336 
 
 PAYMENT TO CESTUIS QUE TRUST. — EELEASE. 
 
 Default of 
 next of 
 kin. 
 
 7nan v. Upsall, 20 Eq. 1.36, 2 Ch. D. 617 ; and see In the 
 Goods of Mcholls, L. R. 2 P. & D. 461. 
 
 Payment to the Crown in default of next of kin .should 
 not be made without the authority of the Court, or at 
 least the fullest investigation : Turner v. Maule, 3 De 
 G. & S. 497. 
 
 Trustees 
 cannot 
 insist on 
 
 nr.der seal, 
 when. 
 
 Misrepre- 
 sentation. 
 
 Course 
 where 
 accounts 
 disputed. 
 
 Payment 
 under 
 express 
 trust. 
 
 Under 
 parol trust. 
 
 Release by Cestuis que Trust. 
 
 Trustees have a right to refuse to pay the funds over to 
 the party entitled to them, unless a full discharge is given 
 to them, but they cannot generally insist on a release : Chad- 
 loick V. Heatley, 2 Coll. 137 ; Be Wright, 3 K. & J. 419. 
 
 They are, it seems, in any case, not entitled to a release 
 under seal unless the trust was created tinder seal : Re 
 Wright, sxLjyra. 
 
 A release obtained by a misrepresentation by the 
 trustee of the rights of the cestui que trust, will be set 
 aside : ThoTnson v. Eastwood, L. R. 2 App. Ca. 21.5. 
 
 If the cestui que trust refuses to admit that the account 
 is correct, and to give a discharge, the trustees would be 
 justified in having the accounts taken by the Court, 
 though that course is not to be encouraged as beneficial 
 to the cestuis que trust in general : Ibid. 
 
 It has also been declared that in the case of a declared 
 trust, where the trust is apparent on the face of the 
 deed, and the trustee is paying either the interest or the 
 capital of the fund, if he is paying in strict accordance 
 with the trusts, he has no right to require a release under 
 seal : King v. Mullins, 1 Drew. 308 ; and see Warter 
 V. Anderson, 11 Hare, 301. 
 
 But where there is no deed, and only a verbal expres- 
 sion of the trusts, and nothing to show the amount of the 
 trust fund, the trustee may demand a release : King v. 
 Mullins, supra. 
 
 Especially if he has been aslsed to do what is not iu 
 strict accordance with the trusts : Ihid. See on this case 
 Lewin, p. 314. 
 
RELEASE — INDEMNITY. 237 
 
 A release is, of course, no protection if the parties are Mease not 
 not cognisant of all their rights ; Walker -v. SyTnonds, rights un- 
 3 Sw. 73 ; Wedderburn v. Wedderburn, 4 M. & Or. 41 ; l^-^"™' 
 Munch V. Oockerell, 5 M. & Cr. 179 ; Fotvler v. Wyatt, 
 24 Bea. 232. 
 
 A release is binding only to the extent of the matter °^>. ^ *" 
 
 , , things not 
 
 especially included in it: Anon., 31 Bea. 310, and see stated in it. 
 cases cited in Lindo v. Lindo, 1 Bea. 496. 
 
 Trustees, on paving money to other trustees, are not Release on 
 
 • 1 1 11 , 1 11 r- payment to 
 
 entitled to any release, but only to an acknowledgment oi other 
 the receipt of the money paid : Re Gater, 25 Bea. 366 ; *™'''''- 
 lie HosJcin, 5 Ch. D. 229. 
 
 Where money is due to cestuis que trust who have To cestuis 
 settled it, the trustee is entitled to a release from the ^^ Jj^^e 
 cestui que trust : Re Cater, supra. settled. 
 
 Payment into Court in an administration suit or other- After pay- 
 wise, is a sufficient indemnity, and no other release can be Court, 
 demanded : England v. Tredegar, 35 Bea. 256. 
 
 For Forms of Releases, see 5 Dav. Free, pt. II., p. 626 ^eTe^e"* 
 et seq. 
 
 Indemnity to Trustees. 
 
 By s. 31 of Lord St. Leonards' Act (22 & 23 Vict.^ c. 35), Statutory 
 every trust instrument, without prejudice to the clauses ™ ^™"' ^' 
 actually contained therein, is now deemed to contain a 
 clause to the effect that the trustees shall be respectively 
 chargeable only for such moneys and securities as they 
 shall respectively receive, notwithstanding their respec- 
 tively signing any receipt for the sake of conformity, and 
 shall be accountable only for their own acts, receipts, 
 neglects, or defaults, and not for those of each other, nor 
 for any banker, broker, or other person with whom any 
 trust moneys or securities may be deposited. 
 
 It will be seen from the cases cited below that in effect. Effect of 
 even before the Act, the doctrine of the Court afforded as ^f^^ -^ 
 much protection, as is secured by the clause in the Act or clause. 
 in its usual form in settlements or wills to non-receiving 
 trustees : Worrall v, Harford, 8 Ves, 8 ; Dawson v, Clarke, 
 
238 INDEMNITY — LIABILITY FOR CO-TRUSTEES. 
 
 18 Ves. 254; Bone v. Cook, McCM. 168; Hanhury v. 
 Kirhland, 3 Sim. 265 ; Moyle v. Moyle, 2 R. & M. 710 ; 
 Brosier v. Brereton, 15 Bea. 221 ; Dix v. Burford, 19 
 Bea. 409 ; Rehden v. Wesley, 29 Bea. 213. 
 Special Lord Eomilly thougM that the clause would not avail, 
 
 dause."' ^ unless it provided that the trustee should not be liable for 
 any breach of trust, unless he thereby obtained a personal 
 advantage : Brumridge v. Bruviridge, 27 Bea. 5. 
 What And a clause which provided for indemnity in the three 
 
 trust may"* cases of liability, namely, where being the recipient, the 
 he met by trustee hands over money without securing its due applica- 
 iudemniiy. ^ion ; where he allows a co-trustee to receive money 
 without making due inquiry as to his dealings with it ; 
 and where he becomes aware of a breach of trust and 
 abstains from taking the needful steps to obtain restitu- 
 tion or redress — was held sufficient to excuse a tmstee 
 from misapplication hj his co-trustee : Wilkins v. Hogg, 
 8 Jur. N. S. 25, affirming 3 Giff. 116. 
 
 But he would still be liable for collusion, or upon know- 
 ledge or suspicion of an intended breach of tmst : Ibid. 
 
 Liability for Go-trustees. 
 
 The principles on which the Court acts with regard to 
 
 the liability of trustees for the acts of their co-trustees are 
 
 now to be considered. 
 No liability Trustees are not liable for loss arising by the mis- 
 orc™S-^ application of money received by their co-trustee alone, 
 tee though though they may have signed a receipt for such money 
 receipf for for the sake of conformity : Townley v. Sherborn, Bridg. 
 conformity. 35 . ^ei^^ v. Barry, 3 Atk. 583 ; Anon., 12 Mod. 560 ; 
 
 Brice v. 8tohes, 11 Ves. 319; Re Fryer, 3 K. & J. 
 
 317. 
 Distinction As to the distinction between the case of trustees and 
 executors, executors, see Leigh v. Barry, 3 Atk. 583, and the cases 
 
 collected in n. (1), ibid. ; Chambers v. Minchin, 7 Ves. 
 
 198 ; Wms. Exors., p. 1821, et seq. 
 Trustee It is for the trustee who desires to exonerate himself 
 
LIABILITY FOR CO-TRUSTEES. 289 
 
 from the inference that he received the money for which mi^ist 
 
 I'll • 1 1 • 1 i prove non- 
 
 he Signed the receipt, to prove that his co-trustee and not receipt. 
 
 he actually received it : Brice v. Stokes, supra. 
 
 This rule is tinaffected by the absence of negative words Absence of 
 in the settlement that they shall not be liable for the acts ^ords as to 
 of one another : Leigh v. Barry, supra. liability. 
 
 But if the trustees bind themselves jointly and severally Joint and 
 to perform certain trusts, they cannot take advantage of liability, 
 the rule : Ihid. 
 
 The act of joining for the sake of conformity must be Joining for 
 
 , , , ,1 • • conformity 
 
 a necessary one, m order to exonerate the non-receivmg -^^^^^ i,f. 
 trustee : Brice v. Stokes, supra; Shipbrook v. Hinchin- necessary. 
 brook, 11 Ves. 253, 16 Ves. 477 ; and see Felloivs v. 
 Mitchell, 1 P. W. 82 ; Heaton v. Marriot, cited ibid. ; as 
 where a sale takes place under a power requiring the 
 receipt of all the trustees to discharge the purchaser : 
 Brice v. Stokes, supra. 
 
 Where one of the trustees is a solicitor and receives Receipt of 
 the money, which was not properly receivable by him as ^iJifor-'^ 
 solicitor but as trustee, his co-trustees are not liable trustee. 
 for joining in the necessary receipt : Re Fryer, 3 K. & J. 
 317. 
 
 If trustees by conduct or acquiescence such as defined Exceptions 
 in Wilkins v. Hogg, (8 Jur. N. S. 25), as stated above acqilie^s- 
 (p. 238), contribute to the loss by allowing money to get <=ence, &c. 
 into the hands of their co-trustees, and by taking no steps 
 to see that it is properly secured, they will be chargeable : 
 Thompson v. Finch, 22 Bea. 316, 323 ; Brumridge v. 
 Brumridge, 27 Bea. 5 ; Cowell v. Gatcombe, Ibid. 568 ; 
 Ingle v. Partridge, 32 Bea. 661. 
 
 So they must not allow a debt due from a co-trustee to Leaving 
 remain unpaid : Mucklow v. Fuller, Jac. 198. co-tmstee 
 
 Nor money to remain in trade when there is a trust "ipaid. 
 to invest it : Booth v. Booth, 1 Bea. 125. moJey'in^ 
 
 And if a trustee gets in the estate and misapplies it trade, 
 through the negligence of his co-trustee, the latter is liable : ^^slect to 
 Bix V. Burford, 19 Bea. 409. perty 
 
 With regard to an undue retainer of money by one ^®'''"^'''^- 
 
240 
 
 LIABILITY FOR CO-TEUSTEES. 
 
 Executor 
 upon trust. 
 
 Inquiry as 
 to invest- 
 ment by 
 co-trustee. 
 
 Leaving 
 deeds or 
 securities 
 in hands of 
 co-trustee. 
 
 Leaving 
 deeds so 
 that they 
 can be 
 dealt with. 
 
 Voluntary 
 trustees. 
 
 trustee who becomes insolvent before the money is got in, 
 see Styles v. Guy, 1 Macn. & G. 422 ; Lincoln v. Wright, 
 4 Bea. 427. 
 
 It should be remembered that an executor who assents to, 
 and sets apart, a specific legacy, becomes a trustee, and is 
 liable to the consequences of his co-executor's default, and 
 is subject to the above rules : Phillipo v. Munnings, 2 
 M. & Cr. 309 ; Egbert v. Butter, 21 Bea. 560 ; but not 
 where the residue is unascertained : Davenport v. Stafford, 
 14 Bea. 331. 
 
 Trustees must not rely on the assurance of a co-trustee 
 that the fund is properly invested ; and even though the 
 latter received it alone, if they do not ascertain the fact 
 they will be liable : Broadhurst v. Balguy, 1 Y. & C C. C. 
 16 ; Hanbury v. Kirkland, 3 Sim. 265 ; Thompson v. 
 Finch, 22 Bea. 316 ; Mendes v. Guedalla, 2 J. & H. 
 259. 
 
 There is not necessarily culpable negligence in leaving 
 title deeds or securities in the hands of one of the trustees, 
 who in receiving interest, &c., will be regarded as a trustee 
 liable for breach of trust, and not as an agent of the other 
 trustees : Cottam v. Eastern Counties Rail. Co., 1 J. & H. 
 243 ; Mendes v. Guedalla, supra. 
 
 An arrangement that each of two trustees should retain 
 a moiety of bonds transferable by delivery is improper, and 
 each is liable in case of the other misappropriating those 
 in his custody : Lewis v. Nobbs, 8 Ch. & D. 595. 
 
 But where a trustee is a debtor to the estate on an 
 equitable mortgage by deposit of deeds, which his co- 
 trustee allows him to retain, the latter is answerable : 
 Candler v. Tillett, 22 Bea. 257. 
 
 As to the power of one of several trustees with deeds in 
 his hands to make a title to a purchaser without notice, 
 see Ibid. 
 
 Of the Liability of Voluntary and De Facto Trustees. 
 When the relation of trustee and cestui que trust is once 
 created, it matters not that the trustees have become sq 
 
VOLUNTAEY AND DE FACTO TRUSTEES. 241 
 
 merely from motives of kindness, or have themselves given 
 the fund which they have afterwards lost by a bad invest- 
 ment : Drosier v. Brereton, 15 Bea". 221. 
 
 But the intention to create a mere voluntary trust of Creation of 
 this kind must be complete and in nowise subject to revo- trust '^^ 
 cation : Bayley v. Boulcott, 4 Russ. 345 ; Rycroft v. 
 Christy, 3 Bea. 238. 
 
 So the relation of trustee and cestui que trust may Trustee 
 arise by a pei'son becoming a trustee de son tort, or de ^ "' 
 facto : Hennessey v. Bray, 33 Bea. 96 ; and see Aveline 
 V. Melhuish, 2 D. J. & Sm. 292 ; Quinton v. Frith, I. R. 
 2 Eq. 396. 
 
 So a general devisee of real estate subject to a legacy, By acting, 
 (so that the trust estates do not pass,) acting in the trusts, 
 is a trustee within the exception of the Statute of Limita- 
 tions : Life Association v. Siddal, 3 D. F. & J. 58 ; and 
 see Rackham v. Siddall, 1 Macn. & G. 607. 
 
 A settlor under a marriage settlement, falsely reciting Settlor a 
 the payment of a sum of which the trusts are declared, f^^g ^ot 
 becomes a trustee to all intents and purposes of that sum : trans- 
 Stone V. Stone, 5 Ch. 74. *'"'''^- 
 
 All the consequences as to costs, and liabilitv for wilful Extent of 
 
 , - , . , , . , , . , . , . liability of 
 
 deiault, notwithstandmg the usual indemnity clause, arise trustee </e 
 in these cases : Drosier v. Brereton, 15 Bea. 226 ; Life *°" '"''*• 
 Association v. Siddal, supra. 
 
 But neither the trustee, nor, after his decease, his estate, Excuse of 
 is liable for acts done by him in innocent ignorance of the is°°''*^'=<'- 
 title to the property : Youde v. Cloud, 18 Eq. 634. 
 
 As, where he is misled by statements made to him by 
 his testator : Ibid. ; Fry v. Fry, 27 Bea. 144 ; Selby v. 
 Bowie, 9 Jur. N. S. 425. 
 
 A mere agent of the trustee, if he acts otherwise than as Agent 
 an agent, is liable to be charged as a trustee : Morgan v. ™<'°™™s 
 Stephens, 3 Giff. 226 ; and see Lee v. Sanlcey, 15 Eq. 
 204. 
 
 But not if he has acted strictly as agent and in the 
 ordinary course of business : Re Bird, 16 Eq. 203 ; 
 Barnes v. Addy, 9 Ch. 244, 
 
CHAPTEE XXXIII. 
 
 OF THE EIGHTS OF THE CROWN WITH REFERENCE TO 
 TRUSTS — TRUSTS OF FOREIGN PROPERTY. 
 
 Establish- 
 ing tnist 
 against 
 Crown. 
 
 Trust of 
 prize. 
 
 Cannot be 
 enforced 
 being 
 revocable. 
 
 Proof of 
 trust of a 
 pension. 
 
 No trust of 
 a 
 
 Sovereign 
 can make a 
 will ; 39 & 
 40 Geo. 3, 
 c. 88, s. 10. 
 
 Probate 
 thereof. 
 
 Mode of 
 creating 
 
 Where the legal estate becomes vested in the Crown 
 by statute, or by operation of law, the trust may be decreed 
 against it on a petition of right : Chitty, Prerog. of the 
 Crown, 387, 391 ; Petition of Right Act, 1860, 23 & 24 
 Vict., c. 34. 
 
 The Sovereign may create a trust of prizes taken in 
 war : Alexander v. Duke of Wellington, 2 R. & M. 35 ; 
 54 Geo. 3, c. 86, s. 2 ; 2 & 3 Vict., c. 53, s. 2. 
 
 But no action can be brought to enforce such a trust, 
 which is by its nature revocable, and may be avoided by 
 the restoration of the prize to the enemy : The Elsehe, 
 5 Rob. 173. 
 
 A grant of a pension by the Crown to an individual is 
 a matter of bounty ; and the royal intention that he should 
 take it upon trust for another must be proved by the most 
 cogent evidence : Fordyce v. Willis, 3 B. C. C. 577. 
 
 There can be no trust of a peerage, which is a possession 
 personal to the grantee : Buckhurst Peerage, 2 App. Ca. 1. 
 
 The Sovereign has a common law and a statutory right 
 to make a will and thereby to create trusts of the privy 
 purse, of moneys not employed for the public service, and 
 of property held by him not in right of the Crown : 
 39 & 40 Geo. 4, c. 88, s. 10. 
 
 Probate cannot, it appears, be granted of a royal will : 
 In the Goods of George III., 1 Add. 255 ; 3 Sw. & Tr. 
 199. 
 
 A trust of land declared by the Crown must be by 
 
THE CROWN. 21-3 
 
 letters patent ; a grant of freehold land to the Crown trust of 
 must be by deed inrolled ; and a surrender of copyholds Crown. 
 to the Crown must also be constituted matter of record 
 by inrolment : Chitty, Prerog. of the Crown, 391. 
 
 The Crown is not bound by the Statute of Frauds : Ad- Crown 
 I'mgton v. Gann, 3 Atk. 147. statate of 
 
 The estate of a cestui que trust seised in fee does not Frauds, 
 escheat to the Crown, but vests in the trustee upon death of°equit-'^ 
 intestate, and want of an heir : Burgess v. Whecde, 1 Ed. able fee. 
 177 ; Taylm^ v. Haygarth, 14 Sim. 16 ; Cox v. Parker, 
 22 Bea. 168. 
 
 By s. 46 of the Trustee Act, 1850, legal estates are no Abolition of 
 longer liable to escheat or forfeiture to the Crown, or to Wafestate 
 any corporation, or lord of a manor, by reason of attainder 
 or conviction for felony. 
 
 An inquiry is directed by the Court to ascertain the fact Inquiry as 
 of the convict's trusteeship : Exp. Tyson, 1 Jur. 281, 472. trusteeship 
 
 By the Trustee Extension Act (1-5 & 16 Vict., c. 55), s. 8, Newtmstee 
 the Court may appoint new trustees in the place of con- convkt! " 
 victs, or where there is no existing trustee. 
 
 Escheat and forfeiture on felony (but not outlawry) of Abolition 
 persons beneficially entitled, are abolished by 33 & 34 of equitable 
 Vict., c. 23, s. 1 ; and the Crown vests their property in estate. 
 an administrator who holds it in trust for the felon, or 
 his heirs, or representatives, with powers of management 
 until his sentence has expired, or has been suffered : 
 ss. 10—30. 
 
 By 11 Geo. 4 & 1 W. 4, c. 40, an executor is constituted Failure of 
 a trustee for the next of kin, in default of whom the Crown 
 will take, unless an intention appears that the executor 
 should take beneficially. The contrary intention must 
 appear from the will itself, and cannot be proved by 
 evidence aliunde : Love v. Gaze, 8 Bea. 472 ; Ellconk v. 
 Mapp, 3 H. L. C. 492 ; Powell v. iferrett, 1 Sm. & G. 
 383 ; Juler v. Juler, 29 Bea. 34 ; but see Harrison v. 
 Harrison, 2 H. & M. 237; Travers v. Travers, 14 Eq. 275. 
 
 Where there is a trust for a charity, void under the Of cha it- 
 Mortmain Act, and there are no next of kin, the executor * ^ *™^*' 
 
 E 3 
 
244 
 
 THE CEOWN — FOREIGN PROPERTY. 
 
 Right of 
 widows. 
 
 Crown 
 
 subject to 
 debts, &c. 
 
 Next of kin 
 
 afterwards 
 
 found. 
 
 Restoration 
 of property. 
 
 Rights of 
 Crown as 
 to land of 
 aliens. 
 
 is a trustee for the Crown : Bacre v. PatricJcson, 1 Dr. & 
 Sm. 182. 
 
 The widow of the intestate takes half and the Crown 
 takes half the estate : Cave v. Roberts, 8 Sim. 214. 
 
 The Crown must take subject to debts, legacies, and 
 costs, and cannot claim under an exoneration of the per- 
 sonal estate by a charge of debts on the real estate : Bacre 
 V. PatricJcson, and cases there cited, 1 Dr. & Sm. 187, 
 supra; and see Theobald on Wills, 452. 
 
 If next of kin are subsequently discovered, the Crown 
 is bound to repay with interest from the time when the 
 payment of debts, &c., was completed : Re Bewell, 4 Dr. 
 269 ; Attorney-General v. Kohler, 8 Jur. N. S. 467. 
 
 On a memorial to the Treasury in proper cases the 
 Crown will entertain the claims of illegitimate relatives of 
 the deceased : Rohsonv. Attorney-General, 10 CI. & F.471. 
 
 The Naturalization Act, 1870 (33 Vict., c. 14), enables 
 an alien to hold property both legally and equitably ; but 
 the Act is not retrospective ; and the Crown is still en- 
 titled upon office found in the case of a trust of land (not 
 converted in equity by a direction to sell) declared before 
 the Act in favour of an alien : Barrow v. WadMn, 24 Bea. 
 1 ; Bu Hourmelin v. Sheldon, 4 M. & Cr. .525 ; Sharp v. 
 St. Sauveur, 7 Ch. 351. 
 
 Court acts 
 in per- 
 sonam and 
 entertains 
 action as 
 to foreign 
 XJropei-ty 
 when trus- 
 tee here. 
 
 Colonial 
 property. 
 
 Of the Jurisdiction of the High Court as to Trusts 
 of Foreign Property. 
 
 If the trustee is within the jurisdiction of the High 
 Court in England, as it acts in personam, the trust will 
 be enforced by the High Court as well with respect to 
 moveable as to immoveable property: Kildare y. Eustace, 
 1 Vern. 418 ; and see Arglasse v. Muschartip, 1 Vern. 75 ; 
 Toller V. Carteret, 2 Vern. 495 ; Foster v. Vassall, 3 Atk. 
 589 ; Angus v. Angus, West, 23 ; Cranstown v. Johnston, 
 3 Ves. 170 ; Jackson v. Petrie, 10 Ves. 105. 
 
 The same principle applies to colonial property subject 
 to trusts : Roberdeau v. Rous, 1 Atk. 543. 
 
TRUSTS OF FOREiaN PROPERTY. 245 
 
 In order to apply the rule it is necessary that privity be Privity 
 
 shown, or a contract proved between the parties : Norris parties. 
 V. Ghamhres, 3 D. F. & J. 584. 
 
 It appears that the High Court will not assume juris- As to realty 
 
 diction with reference to lands abroad, if the lex loci rei must not 
 
 sitcB has been infrinsred in the constitution of the alleged ^^J? ^^J'^ 
 
 . 7 n /• infringed. 
 
 relation between the parties : Waterhouse v. Stansjield, 9 
 Hare, 234 ; Nelson v. BridpoH, 8 Bea. 547. 
 
 And the Court will direct an inquiry as to the lex loci, inquiry as 
 and . act upon its result : Waterhouse v. Stansfield, 9 
 Hare, 239, 10 Hare, 254 ; Martin v. Martin, 2 R. & M. 
 524 ; but see Mliott v. Minto, 6 Madd. 16. 
 
 The Court will also not interfere if the matter is the "Where 
 subject of litigation in a foreign Court which has the is before 
 means of deciding upon and enforcing the rights of the oo™petent 
 parties : Norris v. Ghambres, 3 D. F. & J. 584 ; Doss v. Court. 
 Secretary of State for India, 19 Eq. 509 ; Reiner v. 
 Salisbury, 2 Ch. D. 378. 
 
 Nor will the Court entertain an action by a foreigner Foreigner 
 resident abroad against another foreigner respecting pro- foreigner, 
 perty abroad : Matthaei v. Oalitzin, 18 Eq. 349. 
 
 Where the defendants are here and the remedy by Defendant 
 English law appears more adequate, an injunction will be tetter 
 granted to restrain proceedings in a foreign or colonial remedy. 
 Court : Bushhy v. Munday, 5 Madd. 307 ; Beckford v. 
 Kemhle, 1 S. & S. 7 ; Bunbury v. Bunbury, 1 Bea. 318 ; 
 Baillie v. Baillie, 5 Eq. 175 ; Re Macnichol, 19 Eq. 81 ; 
 but see Breadalbane v. Chandos, 2 M. & Cr. 711. 
 
 And after a suit to enforce trusts has been commenced Kestraining 
 in the High Court, unnecessary identical proceedings abroad.™ 
 abroad will be restrained : Harrison v. Gurney, 2 J. & 
 W. 563 ; Bunbury v. Bunbury, 1 Bea. 318. 
 
 But after an action had been brought in the High Court 
 for the administration of the trusts of the will of a British 
 subject, entitled to real and personal estate both here and 
 in Holland, proceedings commenced in Holland for admi- 
 nistration were restrained by V.-C. Stuart as to the per- 
 sonal estate ; and Knight Bruce, L. J., thought the order 
 
246 
 
 TEUSTS OE FOREIGN PROPERTY. 
 
 Injunction 
 upon tei-ms. 
 
 Service out 
 of jurisdic- 
 tion. 
 
 Foreign 
 charity. 
 
 ought to have given the plaintiff abroad liberty to proceed 
 if she could do so without administering the personal estate 
 there ; but the decree was affirmed, Turner, L. J., holding 
 that the proposed variation should not be made, as no 
 evidence was given that the real estate could be adminis- 
 tered alone in Holland, and doubting whether even the 
 proceedings as to the real estate ought not also to be 
 restrained : Hope v. Carnegie,! Ch. 320. 
 
 An order for an injunction to restrain proceedings 
 abroad may, in a proper case, be obtained, upon an under- 
 taking to submit to and carry into effect any order which 
 the Court might make : Bunbury v. Bunbury, 1 Bea. 
 318, 330. 
 
 Though the High Court has power to order service out 
 of the jurisdiction (Order XI. ; see Morgan & Chute, 
 pp. 458 et seq. ; and Peel's Action in the Chancery Divi- 
 sion, pp. 7 — 9), such power does not extend the jurisdiction 
 of the Court : Gookney v. Anderson, 31 Bea. 452 ; fol- 
 lowed in Blake v. Blake, 18 W. E. 944 ; Matthaei v. 
 Galitzin, 18 Eq. 349. 
 
 The Attorney-General has jurisdiction to institute pro- 
 ceedings to secure a legacy given on trusts for a charity 
 by a subject of the Crown, whether in or out of this 
 country, but not to see a foreign charity administered. 
 Unless the testator has so directed, the Court itself can- 
 not administer it ; but it will direct the money to be paid 
 in such manner as will secure the charity being carried 
 into effect, having regard to the law of the foreign countrj' 
 on the subject : Attorney-General v. Sturge, 19 Bea. 597; 
 but see New v. Bonaker, 4 Eq. 655. 
 
 For this purpose the Court usually pays it to the person 
 chosen by the testator to effect his charitable intention : 
 Provost, &c., of Edinburgh v. Aubery, Amb. 236 ; Attorney- 
 Oeneral v. Lepine, 2 Swans. 181 ; Umery v. Hill, 1 Russ. 
 112 ; Attorney-General v. Sturge, supra. 
 
CHAPTER XXXIV. 
 
 OF THE TRUST FOR A MARRIED WOMAN'S SEPARATE 
 USE — RESTRAINT FROM ANTICIPATION. 
 
 I. Of the Separate Use. 
 
 The usual mode of creating a trust for the separate use Trust for 
 of a married woman is, by vesting the property in trustees ^^^^'^^ " 
 upon a trust for that purpose, indicated by words express- 
 ing that tlie nature of the interest intended to be given is 
 to be such as shall be protected from the debts and claims 
 of the husband. But as the Court does not allow a trust Husband 
 to fail for the want of a trustee, if the intention to create y,}xeie no 
 a separate use is clearly expressed, but the property is other ti-us- 
 given without vesting it in trustees, the husband himself 
 is converted into a trustee so far as his legal rights as 
 husband interfere with his wife's separate enjoyment : 
 Bennet v. Davis, 2 P. W. 316 ; Rich v. Cockell, 9 Ves. 375 ; 
 Parker v. Brooke, lb. 583 ; Frichard v. Ames, T. & R. 222 ; 
 Newlands v. Paynter, 10 Sim. 377 ; Tullett v. Armstrong, 
 1 Bea. 22 ; Archer v. Eorke, 7 I. Eq. R. 478 ; Gccrdner v. 
 Gardner, 1 Giff. 126 ; Green v. Carlill, 4 Ch. D. 882 ; 
 Ashworth v. Outram, 5 Ch. D. 923, 941, per James, L. J. 
 
 But if while discoverte the wife have sold the property 
 settled to her separate use, and have purchased property 
 not usually held as trust investments, she may be taken 
 to have put an end to the separate property, and the 
 husband she afterwards marries will not be a trustee of 
 the newly-acquired investments for her separate use : 
 Wright v. Wright, 2 J. & H. 647; Spicer v. Dawson, 5 
 W. R. 431; Mayd v. Field, 3 Ch. D. 587, 594. 
 
 In one case it was held that a sufHcieiit protection to Legal 
 
248 
 
 SEPARATE USE. 
 
 estate out- 
 standing. 
 
 use by dis- 
 claimer of 
 husband. 
 
 Fund given 
 to husband 
 for liveli- 
 hood of 
 wife. 
 
 xe 
 use m 
 ante- 
 nuptial 
 contract. 
 
 Gifts by 
 husband. 
 
 Parapher- 
 nalia. 
 
 Improve- 
 ment of 
 separate 
 estate by 
 husband. 
 Lien for 
 payments 
 by him. 
 
 Gift to 
 husband. 
 
 Assent of 
 wife to 
 
 the wife was afforded by the legal estate remaining vested 
 in the trustees of a will which had devised the property 
 to a person through whom the wife claimed ; Davison v. 
 AtJciTison, 5 T. K. 484. 
 
 The disclaimer of the husband may in effect establish a 
 separate property in the wife, though the gift to her was 
 not clearly settled to her separate use : Rycroft v. Christy, 
 3 Bea. 238. 
 
 Where an estate is given to a husband for the use or 
 livelihood of his wife, he may be considered as a trustee 
 for her separate use : Barley v. Barley, 3 Atk. 399 ; but 
 see Austin v. Austin, 4 Ch. D. 233, and infra, p. 256. 
 
 An executory ante-nuptial contract between a husband 
 and wife that her estate shall be held by trustees is bind- 
 ing on the husband, if the property is at the same time 
 vested in trustees : Tullett v. Armstrong, 1 Bea. 21 ; but 
 if not so vested in trustees, no separate-estate is created : 
 Simmons v. SiTUTnons, 6 Hare, 352. 
 
 As to gifts made by the husband to his wife in respect 
 of which, notwithstanding the legal impossibility of trans- 
 mutation of possession, he himself is voluntarily constituted 
 a trustee for her, see p. 32, ante. 
 
 For the rights of a wife in paraphernalia, see Williams, 
 Executors, pp. 763—766. 
 
 Expenditure by the husband upon the separate property 
 of his wife enures to the benefit of the separate estate : 
 Barrack v. McCuUoch, 3 K. & J. 110, 119, 120. 
 ' But he will have a lien on the separate estate for an 
 incumbrance on it paid off by him : Nelson v. Booth, 5 
 W. K. 722. 
 
 The vrife may herself destroy the separate use by a clear 
 gift to her husband ; but, in order to establish such gift, 
 undoubted evidence of her assent to the transfer must ap- 
 pear : Rich V. Coclcell, 9 Ves. 375 ; Bartlett v. GUlard, 3 
 Kuss. 149 ; Lynn v. Ashton, 1 R. & My. 190 ; Gardner v. 
 Gardner, 1 Giff. 128 ; Woodward v. Woodward, 3 D. J. 
 & Sm. 672 ; Green v. Garlill, 4 Ch. D. 882. 
 
 Thus where there is sufficient evidence to show an 
 
SBPARA.TE USE. 249 
 
 intention that the husband shall employ the separate receipt by 
 money for his own use, or for the family expenditure, the 
 assent of the wife to such an application puts an end to 
 the trust for her separate use, and the money cannot 
 afterwards be recovered by her or her representatives : 
 Caton V. Rideout, 1 Macn. & G. 601 ; Gardner v. Gardner, 
 
 1 Giff. 130 ; Payne v. Little, 26 Bea. 1 ; Rowley v. Unwin, 
 
 2 K. & J. 138 ; and see Howard v. Digby, 2 01. & F. 643. 
 
 But if the wife being paid a separate legacy by cheque Handing 
 merely hand over the cheque, endorsed by her, to her hus- tugtand. 
 band for the convenience of procuring the money only, 
 and no evidence of an intended gift is forthcoming, the 
 trust in the husband continues with respect to the amount 
 so obtained by him : Green v. Carlill, 4 Ch. D. 882. 
 
 Circumstances may also be proved to show a contract Loan to 
 between the husband and wife, by which a sum of money, 
 part of her separate estate, is handed to him by way of 
 loan, entitling her to prove against his estate in an 
 adnunistration suit for the amount : Slanning v. Style, 3 
 P. W. 334 ; Woodward v. Woodward, 3 D. J. & Sm. 
 672 ; and see Parker v. Brooke, 9 Ves. 583 ; Ashworth 
 V. Outram, 5 Ch. D. 923. 
 
 And if the husband purchase land with separate pro- Devise by 
 perty without the wife's consent, and no gift is made out, landbougbt 
 and he afterwards devises the land, the devisee will hold it ^itii 
 
 in trust for the wife : Darkin v. Darkin, 17 Bea. 578 ; estate. 
 and see Scales v. Baker, 28 Bea. 91. 
 
 The wife may be bound by acquiescence in dealings by Acquies- 
 her husband with her separate estate : Parker v. Brooke, ta^band'a 
 supra ; unless he have acknowledged in writing that the dealings. 
 property has been received by him in trust for her sepa- 
 rate use ; Darkin v. Darkin, supra ; or unless she is 
 from lunacy unable to consent, in which case the husband 
 is permitted to retain so much only as he has applied 
 for her maintenance : Attorney-General v. Parnther, 3 B. 
 C. C. 441 ; Howard v. Digby, 2 CI. & F. 634 ; and see 
 Edwards v. Abrey, 2 Ph. 37 ; Re Baker, 13 Eq. 168. 
 
 Under the Married Women's Property Act, 1870, it is Married 
 
250 
 
 SEPARATE USE. 
 
 Women's 
 Property 
 Act, 1870. 
 
 Separate 
 trade. 
 
 use during 
 
 specified 
 
 marriage. 
 
 Recurrence 
 on sub- 
 sequent 
 marriage. 
 
 Power 
 wHle dis- 
 covert. 
 
 enacted that wages or earnings, legacies or shares, as next 
 of kin under £200, and unsettled real estate shall belong 
 to a married woman to her separate use : 33 & 34 Vict., 
 c. 93, ss. 1, 7, & 8. 
 
 This Act applies to the time of payment of the legacy : 
 Howard Y. Bank of England, 19 Eq. 295. 
 
 As to the wife's liability for her debts contracted before 
 marriage, see s. 12 of the above Act, and 37 & 38 Vict., c. 
 50 ; Sanger v. Sanger, 11 Eq. 470 ; London and Provin- 
 cial Bank v. Bogle, 7 Ch. D. 773. 
 
 If a married woman, either with the business that she 
 had before the marriage, or a business which she has esta- 
 blished after the marriage, with the consent of her 
 husband, is allowed by her husband to carry on that 
 business for her own benefit, separately from and inde- 
 pendently of him, which the Married Women's Property 
 Act, 1870, allows to be done, making the carrying on 
 separately and distinctly a separate use for her, then the 
 trade itself, with everything that is incident to and con- 
 nected with the trade, becomes part of the separate 
 trade, and the husband is, if and so far as is necessary, a 
 trustee of everything which was devoted to that trade of 
 which he had allowed the wife to be the separate 
 owner : per James, L. J., in Ashworth v. Outram, 5 Ch. 
 D. 941. 
 
 If the separate use is in express terms limited to a 
 particular marriage, it will not be extended to a second 
 marriage : Moore v. Morris, 4 Drew. 33. 
 
 But, in the usual case of a limitation to separate use 
 for life, with or without a restraint on anticipation, the 
 property will be subject to such limitation upon every 
 succeeding coverture : Tullett v. Armstrong, 4 M. & Cr. 
 405 ; Be Gaffee, 1 Macn. & G. 547 (overruling Knight v. 
 Knight, 6 Sim. 121 ; Benson v. Benson, Ibid. 126 ; and 
 Bradley v. Hughes, 8 Sim. 149) ; Hawlces v. Hubback, 
 11 Eq. 7. 
 
 Whilst the woman is discoverte, the separate estate, 
 whether modified by restraint or not, is suspended and 
 
SEPARATE USE. 251 
 
 has no operation, but it is capable of arising upon the 
 happening of a marriage : Tullett v. Armstrong, 1 Bea. 
 1, 4 M. & Cr. 405 ; Haivkes v. Hubback, 11 Eq. 5. 
 
 While she is discoverte the trustees must convey as she 
 • desires : Buttanshaw v. Martin, Johns. 89. 
 
 If the woman is an infant at the time of her man-iage Where 
 she cannot consent to the extinction of the separate use "^^ an 
 ■which her marriage will entitle her to retain : Johnson infant. 
 V. Johnson, 1 Keen, 648 ; see as to consents by infants, 
 Re Gardross, 7 Ch. D. 728. 
 
 On the death of the mai-ried woman the separate use Eights of 
 ceases ; and so far as she has not disposed of the property jeathrf °° 
 under a power, or otherwise, her husband's title, acquired ■«'ife. 
 as her administrator, is good as against her next of kin: 
 Proudley v. Fielder, 2 M. & K. 57 ; Molony v. Kennedy, 
 10 Sim. 254 ; Drury v. Scott, 4 Y. & C. 264 ; Musters v. 
 Wright, 2 De G. & Sm. 777- 
 
 But if the settlement contains a further trust on her where un- 
 death as to moneys unapplied by her, that trust will ^pp''«^ 
 
 '' .'^ •' ' _ _ separate 
 
 override her husband's right to any arrears of income in estate is 
 the hands of the trustees : Johnstone v. Lumb, 15 Sim. S'™°°"'^'- 
 308. 
 
 And the same is the case where there is a trust for Gift over 
 the next of kin of savings of the separate income : lie ^^^^^ " 
 RosenthaU, 6 W. E. 139 ; and see Askew v. Rooth, 17 Eq. 
 426. 
 
 A wife, who has a power of appointment over her Power of 
 separate property, may dispose not only of the capital, but ^ent of 
 of the income also as against her husband's right as ftorpus. 
 administrator : Gore v. Knight, 2 Vern. 535. 
 
 And money secreted in her husband's house, if proved Money 
 to be part of the separate estate, will also pass under 
 the appointment : Ibid. 
 
 Creditors have, on the decease of a wife, the same ^'gj^tsof 
 
 ' _ ' creditors 
 
 rights against the separate estate as against other pro- on death of 
 
 perty : Field v. Sowle, 4 Russ. 112 ; Johnson v. Gallagher, ^ ^' 
 3 D. F. & J. 520 ; and see infra, p. 264. 
 
 The separate estate in earnings, protected by the Earnings 
 
252 
 
 SEPARATE USE. 
 
 are equit- 
 able assets. 
 
 Funeral 
 expenses. 
 
 Absolute 
 gift of 
 corpus to 
 
 Land 
 bought 
 ■with 
 sayings. 
 
 Savings in 
 the bank. 
 
 Married Women's Property Act, 1870, becomes, on her 
 death, equitable assets and divisible among her creditors 
 pari passu, so that her executor has no right to retain 
 in full his own debt out of such estate : Thompson v. 
 Bennett, 6 Ch. D. 739. 
 
 As to the liability of the separate estate for funeral 
 expenses, see Gregory v. LocJcyer, 6 Madd. 90 ; Willeter 
 V. Dobie, 2 K. & J. 647. 
 
 Though it was held in Taylor v. Meads (4 D. J. & Sm. 
 597) that the corpus of real estate could be settled to 
 the separate use of a married woman, yet if the words 
 constituting the separate use are such as are inapplicable to 
 the corpus, such as a separate use of the rents and income, 
 together with a restraint on anticipation, then the separate 
 use will not be extended to the corpus, though the corpus 
 be afterwards given to the same person absolutely : Trout- 
 beck V. Boughey, 2 Eq. 534. 
 
 An absolute gift is constituted by a bequest of income, 
 with a power of dominion or appointment over the corpus, 
 though words importing a separate use may be added : 
 Elton V. Sheppard, 1 B. C. C. 532 ; Humphrey v. Hum- 
 phrey, 1 Sim. N. S. 536 ; Haig v. Swiney, 1 S. & S. 487 ; 
 and see Watkins v. Weston, 3 D. J. & Sm. 434. 
 
 But the payment of such a bequest cannot be obtained 
 in an action by the husband and wife ; and the Court 
 will give effect to the separate use by directing the fund 
 to be vested in a trustee for the separate use of the wife, 
 upon the terms of the gift in the will : Simons v. Horwood, 
 1 Keen, 7. 
 
 Accretions of separate property purchased with sepa- 
 rate property, or savings, are separate estate : Duncan v. 
 Cashin, L. E. 10 C. P. 554 ; Newlands v. Paynter, 4 M. 
 & Cr. 408 ; and see Steward v. Blakeway, 4 Ch. 603. 
 
 So, land bought in the joint names of the husband and 
 wife, with savings from separate estate, will belong to the 
 wife : Barhin v. Darkin, 17 Bea. 578 ; Scales v. Baker, 
 28 Bea. 91. 
 
 Savings of separate estate in a banker's hands do not 
 
SEPARATE USE. 253 
 
 pass under an appointment by will by a feme coverte of 
 "all funds and property which shall be purchased out of 
 the savings of property to which I have been, or shall be 
 entitled, to my separate use : " Askew v. Rooth, 17 Eq. 
 426. 
 
 It is necessary to distinguish from savings of separate Savings of 
 estate money obtained out of the husband's business and ^°en t,y 
 kept by the wife, and money given to her for household husband, 
 purposes, or for dress or the like, and applied by her 
 in making investments in her name ; for such sums and 
 investments would belong to her husband : Barrack v. 
 McCulloch, 3 K. & J. 114. 
 
 Remittances to a wife living apart, for her maintenance, Savings by 
 and savings from them cannot be recovered by the hus- ■«'ife living 
 
 " ■' apart. 
 
 band : Brooke v. Brooke, 25 Bea. 342. 
 
 Arrears of separate estate under a settlement made on Arrears. 
 a former marriage are separate property of the woman on 
 a subsequent marriage : Ashton v. McDougall, 5 Bea. 56 ; 
 but as soon as they have been paid by the trustees to the 
 wife, they become her property, and the husband is en- 
 titled, especially where they are invested in a form incon- 
 sistent with the original trust : Spicer v. Dawson, 5 W. E. 
 431; Mayd v. Field, 3 Ch. D. 587; see ante, p. 247. 
 
 Words ivJiioh constitute a Separate Use. 
 No particular form of words is necessary in order to vest Intention to 
 property in a married woman to her separate use. The ^„ ^a j 
 intention, although not expressed in terms, may be in- ""ust 
 ferred from the nature of the provisoes annexed to the ^^^^^^' 
 gift ; as where, for example, the direction is that the 
 property shall be at the wife's disposal, or that her re- 
 ceipt shall be a good discharge ; circumstances which raise 
 a manifest implication that the marital right is to be 
 excluded: Stanton v. Hall, 2 R & My. 175, 180; Tyler 
 V. Lake, 2 R. & My. 183 ; Massy v. Rowen, L. R. 4 H. L. 
 288. 
 
 The word "sole" has not per se any technical mean- "Sole 
 
 use." 
 
254 SEPARATE USE. 
 
 iug importing " separate " use, but the whole instrument 
 must be looked at to come to a conclusion upon its 
 meaning : Gilbert v. Lewis, 1 D. J. & Sm. 38 ; Lewis v. 
 Mathews, 2 Eq. 177; Massy v. Rowen, L. R 4 H. L. 288 ; 
 Farrow v. Smith, W. N. 1877, 21. 
 In a mar- Unless there is something ia the instrument to attribute 
 ment.^^ ^' ^o ^^^ ^se of the word " sole " the intention to exclude the 
 husband, as, perhaps, in the case of a settlement in con- 
 templation of marriage, the word will be taken to point 
 only to the isolation of the donee from the rest of the 
 world, and as giving her the property as its sole and 
 undisputed owner : Massy v. Rowen, L. R. 4 H. L. 
 298. 
 Ia a win. And where a testator clearly contemplates the legatee's 
 
 marriage, the word "sole" may be construed to mean 
 " separate " : Re Tarsey, 1 Eq. 561. 
 
 There is no case of a will containing a disposition to a 
 woman, single or becoming discoverte immediately on the 
 death of the testator, in which the simple words "for her 
 sole use and benefit," unconnected with a gift to trustees, 
 have been made the foundation of a decision that the de- 
 visee takes a separate estate : Gilbert v. Leiuis, 1 D. J. & 
 Sm. 48, per Lord Westbury; but see Lindsell v. Thacher, 
 12 Sim. 178, and Green v. Britten, 1 D. J. & Sm. 649, 
 where, however, as pointed out by Lord Hatherley in 
 Massy v. Rowen, L. R. 4 H. L. 296, the whole purpose of 
 the will clearly indicated a separation of the interest of 
 the wife from the control and influence of the husband. 
 Where the gift has been to trustees for the "sole" use 
 and benefit of an unmarried woman, it has been held to 
 amount to a sepai-ate use : Adamson v. Armitage, 19 Ves. 
 416, G. Coop. 283 ; and see Exp. Killick, 3 M. D. & D. 
 480 ; and the comments on these cases in Massy v. Roiven, 
 L. R. 4 H. L. 296. As to the case of Cox v. Lyne, Younge, 
 562, to a similar effect, see per Lord Westbury in Gilbert 
 V. Lewis, 1 D. J. & Sm. 48. 
 
 That the word "sole'' may mean "separate"' use in a 
 marriage settlement is shown by the case of Exp. Ray, 
 
SEPARATE USB. 255 
 
 1 Madd. 199 ; but see BeaUs v. Spencer, 2 Y. & C. C. C. 
 G31. 
 
 But a devise and bequest to a woman, her heirs, exe- 
 cutors, administrators, and assigns, " for her and their own 
 sole and absolute use for ever," does not confer a separate 
 estate on her, as it could not extend to her heirs, &c., and 
 could only mean that she was to have an absolute interest : 
 Lewis V. Mathews, 2 Eq. 177; and see Pearse v. Pearse, 
 W. N. 1877, 120. 
 
 Words superadded to gifts merely for the "use and 
 lienefit" of the legatee, may necessarily import an inten- 
 tion that a separate estate should enure to her ; and thus 
 a gift for her own use "independently of her husband" Husband 
 ( Wagstaff v. S'i7%ith, 9 Ves. 520 ; Dawson v. Bourne, 16 ^=''^'""^'<'- 
 13ea. 29), or of "any future husband" {Glover v. Sail, 16 
 Sim. 568), or of any other person {Margetts v. Barringer, "Any 
 
 7 Sim. 482), will have that effect. So also will the addi- "therper- 
 . . . . s"" ^'''" 
 
 tion of a direction that she is to " receive the rents from eluded. 
 
 the tenants herself while she lives, whether married or "receipt^ 
 
 single " : Goulder v. Gamm, 1 D. F. & J. 146, in which it 
 
 was also held that the presence or absence of a previous 
 
 devise to trustees in such a case made no difference. 
 
 And a gift "for her whole and sole use during her Control, 
 natural life, and free from the control of her present or 
 any future husband, and not to be sold or mortgaged," 
 was construed as a separate use without power of antici- 
 pation : Steedman v. Poole, 11 Jur. 449 ; and see Edwards 
 V. Jones, 14 W. R. 815. 
 
 But a gift to an unmarried woman "for and under her 
 sole control" without any reference to the exclusion of 
 any husband, creates no separate use : Massey v. Parker, 
 
 2 M. & K. 174. 
 
 A gift "only" for her, her executors, administrators, and " Only." 
 assigns, is not for the sepai-ate use : Spirett v. Willows, 
 
 3 D. J. & Sm. 293. 
 
 But, in the peculiar circumstances of a bequest, in case " Abso- 
 a husband and wife should not be living together at the *^'^' 
 testator's death, to the wife "absolutely," this word was 
 
256 SEPARATE USE. 
 
 held to mean a separate use : Shewell v. Bwarris, Johns. 
 
 172. 
 "Dis- Words giving the "disposal" of the property to the 
 
 posa . legatee will confer a separate estate : Petts v. Lee, 4 Vin. 
 
 Abr. 131, pi. 8 ; Kirk v. Paulin, 7 Vin. Abr. 95, pi. 4.3 ; 
 
 Exp. Ray, 1 Madd. 199 ; AtcherUy v. Vernon, 10 Mod. 
 
 518 ; Priclmrd v. Ar.xes, T. & R. 222 ; but see Re Graham,, 
 
 20 W. R. 289. 
 "Separate A direction that her receipt, or her sole and separate 
 receipt. receipt, shall be a proper discharge will give her a separate 
 
 estate : Hulme v. Tenant, 1 B. C C. 16 ; Lee v. Prieaux, 
 
 3 B. C. C. 381 ; Stanton v. Hall, 2 R. & My. 180, per 
 
 Lord Brougham ; Cooper v. Wells, 11 Jur. N. S. 923 ; Re 
 
 Molyneux, I. R. 6 Eq. 411. 
 " Proper " Payment into " her proper hands " is not alone sufficient 
 hands. to establish a separate use : Tyler v. Lake, 2 R. & My. 183 
 
 (overruling Hartley v. Hurle, 5 Ves. 645) ; Blacklow v. 
 
 Laws, 2 Hare, 40, 52. 
 "Paid "or -^ direction, however, that the property shall be "paid 
 "deliver- ^g jjgr for her own use," or "delivered up to her whenever 
 
 she shall demand or require," has been held to confer a 
 
 separate estate : Jacobs v. Arnyatt, 1 Madd. 376, n. ; 
 
 Bixon V. Olmius, 2 Cox, 414. 
 "Enjoy." In a provision "that she shall enjoy and receive the 
 
 issues and profits of one moiety of the estate," the word 
 
 " enjoy " was held to be very strong to imply a separate 
 
 use: Tyrrell v. Hope, 2 Atk. 561. 
 "Support The words "maintenance and support " are not usually 
 tCTauce'"' sufficient to create a separate use : Austin v. A ustin, 4 
 
 Ch. D. 233 ; cf. Gape v. Cape, 2 Y. & C. Ex. 543. 
 
 But a discretion to pay income for "maintenance and 
 
 support " gives power to the trustees to pay to the feme 
 
 coverte for her separate use : Austin v. Austin, su2Jra. 
 Second Where a testator first makes a bequest upon trust for 
 
 gift in -vpiii tjie separate use in so many words, and afterwards makes 
 
 by different .... . , 
 
 words. a gift Without trustees either to the same or to another 
 person in words not usually, though sometimes held to 
 be, applicable to the creation of a separate estate, the latter 
 
SEPARATE USE — POWER OF DISPOSITION. 257 
 
 gift will not be to the separate use : Wills v. Bayers, 4 
 Madd. 409; Kensington v. Dollond, 2 M. & K. 184; 
 Darcy v. Croft, 9 I. Ch. R. 19. 
 
 A provision that a separate use in legacies to females Separate 
 shall extend to such as " are married " has been held to carried 
 include such as were afterwards married at the time daughters. 
 when the legacies became payable : Re Bayliss, 17 Sim. 
 178. 
 
 On a gift by will to the testator's daughters, " the share 
 or shares of such daughters to be for their sole and sepa- 
 rate use," followed by a contingent gift over to the survivors, 
 the separate use was held to attach to the accrued as well 
 as to the original shares : He Jarman, 1 Eq. 71. 
 
 Power of Disposition. 
 
 A feme coverte, not restrained from anticipation, acting Power con- 
 with respect to her separate estate, whether real or per- s^^iaxl 
 sonal, in possession or reversion, is competent to act in all i^se to act 
 respects as if she were a feme sole, and without the concur- sole. 
 rence of her husband : Peacock v. Monk, 2 Ves. Sen. 190 ; 
 Hvlme V. Tenant, 1 B. C. C. 16 ; Fettiplace v. Gorges, 3 
 B. C. C. 8 ; Murray v. Bao'lee, 3 M. & K. 209 ; Vaughan v. 
 Vanderstegen, 2 Drew. 183 ; Johnson v. Gallagher, 3 D. 
 F. & J. 515 ; Taylor v. Meads, 4 D. J. & Sm. 597 ; 
 London Chartered Bank of Australia v. Letivpriere, L. 
 E. 4 P. C. 572 ; Warne v. Routledge, 18 Eq. 497 ; Wll- 
 lock V. Noble, L. R. 7 H. L. 580; Sugd. Pow. 173 ; and 
 see under Divorce Act 20 & 21 Vict. c. 85, ss. 21, 25, 
 and 26. 
 
 She has, "as incident to her separate estate, and with- Alienation 
 out any express power, a complete right of alienation by ^^]i_^^' °'^ 
 instrument inter vivos or by will : " Taylor v. Meads, 
 supra. 
 
 " The true theory of her alienation is, that any instru- Principle 
 ment, be it deed or writing, when signed by her, operates ^*^*^'^- 
 as a direction to the trustees to convey or hold the estate 
 according to the new trust which is created by such direc- 
 
258 
 
 SEPARATE USE — POWER OP DISPOSITION. 
 
 Disposi- 
 tion of 
 equitable 
 estate. 
 
 Consent of 
 trustees un- 
 necessary. 
 
 Barring 
 equitable 
 estate tail. 
 
 Where 
 feme 
 covert 
 proteotoi'. 
 
 Acknow- 
 ledgment 
 unneces- 
 sary. 
 
 Alienation 
 of rever- 
 sion. 
 
 tion. This is sufficient to convey the feme coverte's equit- 
 able interest. When the trust thus created is clothed by 
 the trustees with the legal estate, the alienation is com- 
 plete both at law and in equity: " Taylor v. Meads, 4 D. 
 J. & Sm. 597 ; Pride v. Bubb, 7 Ch. 64. 
 
 So a disposition of an equitable fee, part of the separate 
 estate, may be made by the feme coverte as well as of any 
 other property : Pride v. Bubb, 7 Ch. 64 ; Bishop v. Wall, 
 3 Ch. D. 194. 
 
 No consent by the trustees is required to enable the 
 wife to bind her separate estate : Pybus v. Smith, 1 Ves. 
 Jun. 193 ; ParJces v. White, 11 Ves. 223 ; Essex v. Atkins, 
 14 Ves. 542 ; Taylor v. Heads, 4 D. J. & Sm. 597. Whistler 
 V. Newman, 4 Ves. 129, and Mores v. Huish, 5 Ves. 692, 
 contra, are not law. 
 
 Kfeme coverte equitable tenant in tail to her separate 
 use, and restrained from anticipation, is not prevented 
 from enlarging her estate by barring the estate tail, and in 
 conjunction with her husband resettling the property on 
 herself to her separate rise in fee ; Cooper v. Macdonald, 
 7 Ch. D. 288, 294, 300. 
 
 A married v/oman is, by virtue of a prior estate, settled 
 to her separate use, the protector of the settlement, and 
 may join in a disentailing deed without her husband : 
 Fines and Eecoveries Act (3 & 4 Vict., c. 71, s. 24) ; secus, 
 if there be no separate use : Ibid. 
 
 And the fact that the settlement was before the Act 
 makes no difference : Keer v. Brown, Johns. 138. 
 
 She need not acknowledge her deed relating to her 
 separate estate, either under the Fines and Recoveries 
 Act {swpra) as to land, or under Malin.s' Act (20 & 21 
 Vict. c. 57) as to her reversionary property : Taylor y. 
 Meads, 4 D. J. & Sm. 597, 604; JSfeivcomen v. Hassard, 4 
 Ir. Ch. R. 268 ; Pride v. Bubb, 7 Ch. 64, 69. 
 
 That her reversionary separate property may be dis- 
 posed of by her, see 8tu7yis v. Corp, 13 Ves. 190 ; Major 
 V. Lansley, 2 R. & M. 355 ; Bonne v. HaH, 2 R. & M. 
 360. 
 
SEPARATE USE — GENERAL ENGAGEMENTS. 259 
 
 As to a disposition of separate estate taking effect on Contin- 
 an event which has not yet happened, such as the bank- positions'. 
 ruptcy of the husband, see Mara v. Manning, 2 J. & L. 
 311 ; Luther v. Bianconi, 10 I. Ch. R. 194 ; Bestall v. 
 Bunhury, 13 I. Ch. R. 318 ; Keays v. Lane, I. R. 3 Eq. 1 ; 
 Re Smallman, I. R. 8 Eq. 249. 
 
 A married woman mayj without the consent of her hus- Her po-n-er 
 band, make a 'valid will of property settled to her sepa- ^iu^ 
 rate use : Taylor v. Meads, 4 D. J. & Sm. 597 ; but no 
 will not executed with the consent of her husband, or re- 
 executed after his death, will affect property not so settled : 
 for the new Wills Act (1 Vict., c. 26) does not extend her 
 rights in this respect beyond what is provided by the old 
 Statute of Wills (34 & 35 Hen. 8, c. 5) : WillocJe v. Foble, 
 L. R. 7 H. L. 580. 
 
 A feme eoverte having a limited power of appointment 'VViU under 
 by will over personal estate must make her will by refer- ^°'"^'^' 
 ence to the power, and the fact that the will may operate 
 upon some property settled to her separate use will not 
 aid the execution as to other property subject to the 
 power : ~Lovell v. KnigJd, 3 Sim. 275 ; Evans v. Evans, 
 23 Bea. 1 ; and see Shelford v. Acland, 23 Bea. 13. 
 
 It will depend upon the words of the gift to the separate Extent of 
 use whether the power of disposition by will extends to ^^'■" *° 
 the corpus of the property so given : Troutbech v. Bougliey, 
 2 Eq. 534 ; see ante, p. 252. 
 
 As to whether assignees or purchasers of separate estate, Purchaser 
 with or without notice, are liable to the same rules as T'*!!.""* 
 would affect other purchasers with notice, see Dawson v. 
 Prince, 2 D. & J. 41 ; Warne v. Routledge, 18 Eq. 497 ; 
 and see Foss v. Foss, 15 I. Ch. R. 215. 
 
 Liability for General Engagements. 
 
 The separate estate is liable to general engagements of iiow 
 the married woman, except so far as the Statute of Frauds ^^P^™*" 
 may interfere where the separate property is real estate ; Lound by 
 but in order to bind it, it should appear that the engage- 
 
 notice. 
 
 general 
 engage- 
 2 ments. 
 
260 
 
 SEPAEATK USE — GENERAL ENGAGEMENTS. 
 
 Living 
 apart. 
 
 Where 
 obligation 
 can te 
 satisfied 
 only by- 
 separate 
 estate ; 
 
 though 
 ignorant of 
 her in- 
 terest. 
 
 Where 
 /eijic has 
 only life 
 estate and 
 a power. 
 
 ment was made with reference to, and upon the faith or 
 credit of that estate : which facts are to be judged of by 
 the Court upon all the circumstances of the case : John- 
 son V. Gallagher, 3 D. F. & J. .313 ; London Chartered 
 Banh v. LemprUre, L. R. 4 P. C. 572 ; Picard v. Hine, 5 
 Ch. 274. 
 
 Amongst the circumstances which may have weight in 
 determining the question, is the fact of the married 
 woman living with, or separate from, her husband : John- 
 son V. Gallagher, supra; Picard v. Hine, supra; M' Henry 
 V. Bavies, 10 Eq. 88, 90. 
 
 Where the married woman enters into an engagement, 
 such as a bond, bill, note, or other obligation, which, con- 
 sidering her state as a married woman, could only be 
 satisfied by means of her separate estate, the inference 
 is conclusive that there was a clear intention on her part 
 that the separate estate should be bound : Tullett v. 
 Armstrong, 4 Bea. 319 ; Johnson v. Gallagher, 3 D. F. & 
 J. 515. 
 
 And where, having separate estate, she does not know 
 perfectly the nature of her interest, she executes an instru- 
 ment by which she plainly shows an intention to bind the 
 interest which belongs to her, then, though she may make 
 a mistake as to the extent of the estate vested in her, the 
 law will say that such estate as she may have shall be 
 bound by her own act : Ibid. 
 
 Where the married woman has a limited interest only, 
 as for instance, a life estate with a power of appointment, 
 the corpus is subject to her debts and engagements where 
 the power is by deed, or writing, or will : Johnson v. 
 Gallagher, 3 D. F. & J. 513 ; but it seems doubtful 
 whether the same is the case where the power is to 
 appoint by will only, though the power has been exer- 
 cised, the cases of Norton v. Turvill, 2 P. W. 144, and 
 Hughes v. Wells, 9 Hare, 749, being in favour of the 
 opinion that the corpus is chargeable, the case of Heatley 
 V. Thomas, 15 Ves. 596, leaving it doubtful, and Vaughan 
 V. Vanderstegen, 2 Drew. 165, and Hobday v. Peters, 
 
SEPARATE USE — GENERAL ENGAGEMENTS. 261 
 
 28 Bea. 354, deciding the point distinctly in the negative. 
 In Johnson v. Gallagher, supra, L. J. Turner treated the 
 point as being still open. 
 
 Where there is a limitation in default of appointment; Where gift 
 not being a limitation to the executors and administrators default of 
 of the married woman herself (as in London Chartered appoint- 
 Bank v. Lemprilre, L. R. 4 P. C. 572), the corpus is not 
 chargeable in favour of creditors as against those entitled 
 in default of appointment : Nail v. Punter, 5 Sim. 555 ; 
 Johnson v. Gallagher, supra. 
 
 Jewels being assigned to trustees upon trust for such Disposi- 
 person as a feme coverte, should by writing direct or ap- settled 
 point and in default upon trust for her for life for her jewels, 
 separate use, and to be at her absolute disposal, and her 
 receipt, and that of the person to whom she should 
 direct the jewels to be delivered, to be a joint discharge, 
 the gi!'t and manual delivery of the jewels to another 
 was held to be good without any writing, as the direction 
 as to appointment in writing did not extend to the life 
 interest, and the separate use created an absolute gift : 
 Farington v. Parker, 4 Eq. 116. 
 
 Upon the principles above stated the separate estate is Bond, 
 liable on a bond given by her : Lillia v. Airey, 1 Ves. Jun. 
 277 ; Norton v. Turvill, 2 P. W. 144 ; Peacock v. Monk, 2 
 Ves. Sen. 193 ; Heatley v. Thomas, 15 Ves. 596, explained 
 in London Chartered Bank v. Lemprihre, L. R. 4 P. C 
 595; though her husband or another be joined in it with Husband 
 her : Hulme v. Tenant, 1 B. C. C. 16 ; Heatley v. Thomas, ^"'"^S" 
 15 Ves. 596 ; Davies v. Jenkins, 6 Ch. D. 728 ; but 
 whether she is not, in a case where she joins her husband Wife join- 
 in a security, merely a surety for him, see Stamford Bank surety 
 V. Ball, 4 D. F. & J. 310. 
 
 Her separate estate has been made liable on a covenant Covenant, 
 to pay a sum of money to the trustees of her daughter's 
 settlement : Mayd v. Field, 3 Ch. D. 587. 
 
 It is liable on a bill of exchange accepted or endorsed Bill of 
 by her : Stuart v. Kirkwall, 3 Madd. 887 ; Owen v. ^'"'^''^^■ 
 Homan, 4 H. L. C. 997 ; McHenry v. Davies, 10 Eq. 88 ; 
 
162 
 
 SEPARATE USE — GENERAL ENGAGEMENTS. 
 
 Pi'omfssory 
 note. 
 
 ment for 
 
 Contract 
 for sale. 
 
 Indemnity 
 to trustees 
 for calls. 
 
 Guarantee, 
 
 Eetalner of 
 solicitor, 
 tuilder, 
 &c. 
 
 Costs, 
 
 Where 
 debt is 
 husband's. 
 
 Lancashire & Yorkshire Bank v. Tee, W. N,, 1875, 
 213, 
 
 And on her promissory note : Bullpin v. Clarke, 
 17 Ves. 365 ; Field v. Sowle, 4 Russ, 112 ; Davies v, 
 Jenkins, 6 Ch, D. 728 ; but see Re SyJces, 2 J, & H, 415. 
 Shattock V. Shattock, 2 Eq, 182, contra, is overruled by 
 London Chartered Bank v. Ler)iprihre, L. R, 4 P, C. 594. 
 
 The separate estate may be bound by an agreement to 
 take a lease for a term: Gaston v. Frankumi, 2 De G. 
 
 6 Sm. 561, in which case the woman was living apart 
 from her husband. 
 
 She may bind her separate estate to pay purchase- 
 money under a contract : Picard v, Hine, 5 Ch. 274. 
 
 Or to indemnify trustees for calls on shares : Re Mat- 
 thewman, 3 Eq. 781 ; and see Butler v. Cvmipston, 
 
 7 Eq, 10, 
 
 Or by a guarantee to a person undertaking to supply 
 goods to her husband : Morrell v. Cowan, 7 Ch. D. 
 151, 
 
 It seems that a married woman with separate property 
 may employ a solicitor, builder or tradesman, or hire 
 labourers or servants, and render that property liable for 
 such employment or hiring : London Chartered Bank 
 V, Lemprihre, L. R, 4 P, C. 594, 
 
 The separate estate is liable for costs to a solicitor re- 
 tained by the feme coverte in proceedings and matters 
 strictly referring to that estate : Murray v, Barlee, 3 M. 
 & K, 210 ; Re Pugh, 17 Bea. 336 ; but see Callow v. 
 Howie, 1 De G, & Sm. 531 ; il/. v, C, L, R. 2 P, & D, 
 414, 419, 
 
 And if the husband is joined with the wife in an action 
 to deprive her of her separate estate, which action fails, 
 she may still have her costs ; or rather her solicitor will be 
 entitled to them, instead of a charge against her separate 
 property : Kevan v. Crawford, 6 Ch, D, 29, 40 ; see 
 Morgan & Davey on Costs, p, 262, 
 
 If it appears that the engagement is not the wife's, but 
 her husband's, her separate estate will not be liable for it ; 
 
SEPAKATE USE — GENERAL ENGAGEMENTS. 263 
 
 as where it was by recital charged on her property, but 
 the security was given by the husband alone : Tullett v. 
 Armstrong, 1 Bea. 1. 
 
 And if the debt be the husband's, and she effectually 
 join in charging her separate estate to secure it, she is 
 entitled to insist that his property be first applied in 
 paying it : Aguilar v. Aguilar, 5 Madd. 414 ; and see 
 Stamford Bank v. Ball, 4 D. F. & J. 310. 
 
 Subject to the enactments next referred to, the separate Family 
 estate is not liable to contribute towards the family t^g_ 
 expenses, however poor the husband may be : Lumb v. 
 Milnes, 5 Ves. 620 ; Hodgens v. Hodgens, 4 C. & F. 
 323. 
 
 But if the husband is chargeable to the parish, the Support of 
 separate property may be made liable for his mainten- ' 
 
 ance : Married Women's Property Act, 1870, (33 & 34 
 Vict., c. 23,) s. 13. 
 
 And a married woman having separate property is of cHl- 
 subject to all such liability for the maintenance of her °" 
 children as a widow is subject to, though without relieving 
 the husband from his liability : Ibid. s. 14. 
 
 The property of a widow which has been to her separate Liability 
 use during the coverture, is liable to fulfil contracts made jj^sband's 
 with respect to it during her husband's lifetime ; Stead v. death, 
 JSfelson, 2 Bea. 245. 
 
 As to the liability of a husband for his wife's debts con- Liability of 
 tracted before the marriage, see Chubb v. Stretch, 9 Eq husband 
 
 . 'J., foj. ante- 
 
 559, and 37 & 38 Vict., c. dO. nuptial 
 
 debts. 
 
 Proceedings with regard to the Separate Estate. 
 
 The separate estate can be reached to satisfy general ^o action 
 engagements only by an action instituted against the ^gamst 
 married woman and her trustees, tor neither at law nor in personally, 
 equity can a married woman be personally bound by con- 
 tract : Murray v. Barlee, 3 M. & K. 222 ; Aylett v. 
 Ashton, 1 M. & Cr. 105 ; Vaughan v. Vanderstegen, 2 
 Drew. 184 ; Johnson v. Gallagher, 3 D. F. & J. 494, 519; 
 
26t 
 
 PEOCEEDINGS AGAINST SEPARATE ESTATE. 
 
 Where 
 husbani 
 construc- 
 tive 
 trustee. 
 
 In-unction, 
 
 Form of 
 decree to 
 charge 
 
 estate. 
 
 Ilushand 
 to be de- 
 fendant 
 to action. 
 
 Eccovery 
 of separate 
 estate. 
 
 Action 
 after death 
 
 MacHenry v. Davies, 6 Eq. 462 ; and see Wainforcl v. 
 Heyl, 20 Eq. 324. But see as to the necessity of joining 
 tlie trustees : Davies v. Jenlcins, 6 Ch. D. 728. 
 
 But if the trustees pay funds, part of separate property, 
 to the husband, he becomes a trustee for his wife, and 
 suable accordingly : Rich v. CocJcell, 9 Ves. 375, see 
 ante, p. 247. 
 
 An injunction may be obtained to restrain the husband, 
 or other persons, from receiving or using separate estate : 
 Green v. Green, 5 Ha. 400 n. ; Mawhood v. Milbanke, 15 
 Bea. 36 
 
 The decree charging the separate estate will affect only 
 that property which the married woman has at the date of 
 it, and the form now adopted is to declare the separate 
 property of the married woman vested at the date of the 
 decree in her, or in any person in trust for her, to be 
 chargeable with the payment of the debt and interest, and 
 that the same be so charged accordingly ; to order an 
 account of what is due to the creditor ; to inquire of what 
 the separate property consists at the date of the decree, 
 and in whom it is vested : Picard v. Sine, 5 Ch. 274 ; 
 Lancashire & Ywhshire Bank v. Tee, W. N., 1875, 213. 
 
 This form of decree was also used in a case in which the 
 wife had joined her husband in signing a joint and several 
 promissory note for money lent to him, and for which her 
 separate property was, on his bankruptcy, held to be liable : 
 Davies v. Jenkins, Q Ch. D. 728, 
 
 The husband of a married woman must be joined with 
 her as a defendant in an action to charge wages and 
 earnings which are her separate property under the 
 Married Women's Property Act, 1870 : Hancocks v. 
 Lahlache, L. R. 3 C. P. Div. 197. 
 
 But he should join with his wife as plaintiff in recover- 
 ing the separate estate where there are no trustees : Fleet 
 V. Perrins, L. R. 3 Q. B. 536, 4 lUd. 500 ; Jones v. Guth- 
 bertson, L. R. 7 Q. B. 218, 8 Ibid. 504. 
 
 Rights created by the feme coverte against her separate 
 estate may be enforced against it after the determination 
 
PKOCEEDINGS AGAINST SEPARATE ESTATE. 265 
 
 of the coverture, or after her death : Field v. Sowle, 4 of husband 
 Russ. 112 ; Nail v. Punter, 4 Sim. 474 ; Johnson v. 
 Gallagher, 3 D. F. & J. 494, 520. 
 
 After separation from her husband the wife, by her next After se- 
 friend, may bring an action to establish the separate use ^^™ '""■ 
 against her husband : Anderson v. Anderson, 2 M. & K. 
 427. 
 
 Whether she can, -without her husband, sue in respect Nuisance. 
 of a nuisance or other personal injury, see White v. Cohen, 
 1 Dr. 312. 
 
 The husband is not the person to sue a tenant of sepa- Trespass. 
 rate property for trespass, &c. : Allen v. Walker, L. R. 5 
 Exch. 187. 
 
 A married woman is not liable to be made a bankrupt Whether 
 for a debt contracted before her marriage ; and it is pro- woman 
 bably not the case, though it has never been decided, that "^^ ^'^ 
 
 , , 1 ■ 1 T ■ PI bankrupt. 
 
 she can be made a bankrupt m respect of her separate 
 estate : Fxp. Holland, 9 Ch. 307. 
 
 But where she, being a separate trader under the 
 Married Women's Property Act, 1870, had presented a 
 petition for liquidation, a creditor who prayed for judg- 
 ment in an action against her to enforce his debt, was 
 directed to prove in the liquidation : Bay v. Freund, W. 
 N., 1876, 266. 
 
 A married woman is not liable for general torts ; they Not liable 
 are the torts of her husband ; and her separate estate 
 cannot therefore be made liable for them : Wainford v. 
 Heyl, 20 Eq. 321, 324. 
 
 Where the married woman is entitled to her separate Liability 
 use and is unrestrained from anticipation, she is, to all ^f'^trust 
 intents, a feme sole ; and the loss occasioned by her 
 breach of trust must be made good out of that part of 
 her property : Clive v. Carew, 1 J. & H. 199, 204 ; Wain- 
 ford V. Heyl, 20 Eq. 321, 324. 
 
 But if she is re.strained from anticipation, the property 
 so settled cannot be affected by her breach of trust, even 
 though she herself be the settlor : Clive v. Carew, 1 J. & 
 H. 199, 207. 
 
263 
 
 RESTRAINT ON ANTICIPATION. 
 
 Acqui- 
 escence. 
 
 LiaLility 
 for fraud. 
 
 Applies 
 to any 
 property. 
 
 Suspension 
 during dis- 
 coverture. 
 
 By what 
 
 words 
 
 created. 
 
 Thus arrears of an annuity, to which an executrix was 
 entitled to her separate use without power of anticipation, 
 were held to be applicable to replace misappropriations 
 by her as executrix, such arrears not being subject to the 
 restraint ; but future payments, being so subject, were 
 not held to be applicable for that purpose : Pemberton v. 
 McGill, 1 Dr. & Sm. 266 ; Glaydon v. Finch, 15 Eq. 266. 
 
 As to the effect of a married woman's acquiescence in a 
 breach of trust, see fost, p. 334. 
 
 In no case, and by no device whatever, can the restraint 
 upon anticipation be evaded, though the feme coverte be 
 guilty of fraud : Jackson v. Hobhouse, 2 Mer. 488 ; Clive 
 V. Carew, 1 J. & H. 199, 206 ; Arnold v. Woodhams, 16 
 Eq. 29 ; Stanley v. Stanley, 7 Ch. D. 589 ; and see Re 
 Lush, 4 Ch. 591. 
 
 But a married woman is capable of committing a fraud 
 by representing that she has an absolute disposable inte- 
 rest ; and her separate property not subject to a restraint 
 on anticipation, is liable to be visited with the conse- 
 quences of that fraud : Vaughan v. Vanderstegen, 2 
 Drew. 379 ; Hobday v. Peters, 28 Bea. 354 ; Sharpe v. 
 Foy, 4 Ch. 35 ; Wainford v. Heyl, 20 Eq. 321, 324 ; 
 Thomas v. Price, 46 L. J. Ch. 761. 
 
 II. Restraint on Anticipation. 
 
 Anticipation is capable of being restrained in the case 
 of any kind of property : Raggett v. Meux, 1 Ph. 627. 
 
 The restraint on anticipation is annexed to the separate 
 estate only, and the separate estate has its existence only 
 during coverture ; therefore the restraint is suspended 
 during the period of discoverture : Tidlettv. Armstrong, 1 
 Bea. 1, 4 M. & Cr. 377 ; Scarborough v. Borman, 1 Bea. 34 ; 
 4 M. & Cr. 377 ; Clark v. Jaques, 1 Bea. 36.; Dixon v. 
 Dixon, 1 Bea. 40 ; Moore v. Morris, 4 Drew. 33 ; Re 
 Gaffee, 1 Macn. & G. 541 ; Haiuhes v. Hubback, 11 Eq. 5. 
 
 The restraint on anticipation may be expressed by any 
 words showing clear intention to that effect : Hao'rop v. 
 Howard, 3 Hare, 624 ; Brown v. Ramford, 1 Ph. 620 ; 
 
KESTEAINT ON ANTICIPATION. 267 
 
 Moore v. Moore, 1 Coll. 54 ; Field v. Evans, 15 Sim. 375 ; 
 Harnett v. MacBougall, 8 Bea. 187 ; Steedman v. Poole, 
 6 Hare, 193 ; see Alexander v. Young, 6 Hare, 393. 
 
 A trust to pay income from time to time does not 
 operate to restrain anticipation : Parlces v. White, 11 Ves. 
 222. 
 
 A devise to trustees upon trust for the benefit of a/eme 
 sole, " the rents and profits of which she shall receive from 
 the tenants herself whether married or single," followed 
 by a proviso that no sale or mortgage of the land or the 
 rents should take place during her life, was construed as 
 a devise to the separate use without power of anticipa- 
 tion, thereby invalidating a mortgage by her and her 
 husband : Goulder v. C'amm, 1 D. F. & J. 146.1 
 
 After a bequest to a tenant for life, a remainder to Where 
 daughters cannot be limited to their separate use with a ^oia for 
 restraint on anticipation, and the daughters take without remoteness, 
 the restriction : Arrnitage v. Coates, 35 Bea. 1 ; Re 
 Michxtel,W.'N.,1877, 134. 
 
 So a restraint on anticipation is too remote when im- 
 posed upon an appointment under an antenuptial settle- 
 ment : Re Cunynghame, 11 Eq. 324; Re Teague, 10 Eq. 
 .564. 
 
 But under a power given by will to appoint portions, 
 an appointment of a portion with a restraint on anticipa- 
 tion was held to be good : Dickinson v. Mort, 8 Hare, 178. 
 
 The Court has no power to interfere for the purpose of Alienation 
 enabling a married woman to alienate lands devised to ^.°* ^^J^"' 
 
 . . ... tioned 
 
 separate use with restraint on anticipation, although by by Court 
 another will property of greater value was devised to her Sse. 
 upon condition of her so alienating them : Robinson v. 
 Wheelwright, 6 D. M. & G. 535. 
 
 Though the married woman may be domiciled in a 
 country where the restraint against anticipation is not 
 regarded, yet the Court here will not sanction any ar- 
 rangement which would get rid of the restraint : Peillon 
 V. Brooking, 25 Bea. 218. 
 
 It appears that the restraint from anticipation does not Bestraint 
 
268 
 
 EESTRATNT ON ANTICIPATION. 
 
 does not 
 prevent bar 
 by delay. 
 
 EEfect of 
 restraint as 
 to breacli 
 of trust 
 to invest. 
 
 Compro- 
 mise. 
 
 Cash in 
 Court. 
 
 Stock in 
 Court. 
 
 Past divi- 
 dend. 
 
 Sale 
 moneys. 
 
 Payment 
 out after 
 protection 
 order. 
 
 relieve a married woman from the ordinary consequences 
 of lapse of time and acquiescence : Berbiahire v. Home, 3 
 D. M. & G. 80. 
 
 As to the effect of the clause on her liability for breach 
 of trust and fraud, see ante, pp. 265, 266. 
 
 The presence or absence of a proviso against anticipa- 
 tion has no bearing upon the question whether trustees 
 are, or are not, liable for a breach of trust by making an 
 improper investment, since the power of the married 
 woman is only over the interest after it has become due, 
 where there is such a proviso, over the interest due or 
 to become due if there be no such proviso : Bavies v. 
 Hodgson, 25 Bea. 177, 186. 
 
 A married women is not prevented by the clause 
 against anticipation for compromising a suit affecting 
 the property subject to the clause : Wilton v. Hill, 25 
 L. J. Ch. 156. 
 
 Where cash in Court belongs to a married woman 
 to her separate use, without power of anticipation, it 
 may be paid out to her on her separate receipt : Ee 
 Croughton, 8 Ch. D. 460. 
 
 But if the fund consist of consols, as property producing 
 income, the Court will not transfer it to her upon such 
 a title : Re Ellis, 17 Eq. 409. 
 
 A past dividend in Court is liable to be paid over 
 to a sequestrator, notwithstanding the separate use and 
 restrainst against anticipation : Claydon v. Finch, 15 
 Eq. 266. 
 
 Sale moneys of property sold under the Settled Estates 
 Act remain affected by the separate use and restraint 
 from anticipation attached to the land sold : Re Morgan 
 
 9 Eq. 587. 
 
 As to payment out after a protection order under 
 the Divorce Acts, see Re Kingsley, 26 Bea. 84; Re 
 Rainsdon, 4 Drew. 446 ; Cooke v. Fuller, 26 Bea. 99. 
 
CHAPTER XXXV. 
 
 DOWER AND CURTESY IN EQUITABLE ESTATES. 
 
 Dower. 
 
 When a husband shall die beneficially entitled to any Dower Act: 
 land for an interest which shall not entitle his widow to ^™^* 
 
 estates 
 
 dower out of the same at law, and such interest, whether made liable 
 wholly equitable or partly legal and part.y equitable, shall ° °^'^^' 
 be an estate of inheritance in possession (other than an 
 estate of joint tenancy), then his widow shall be entitled 
 to dower out of the same land : Dower Act (3 & 4 W. 4, 
 c. 105) s. 2. 
 
 Dower will attach though the husband, having a right Right of 
 of entry only, should not have recovered possession when ^^''^^ 
 he dies ; Ibid. s. 3. 
 
 But no widow is entitled to dower out of any land which No do-wer 
 has been absolutely disposed of by her husband in his life- ggt^tes dis- 
 time or by his will : Ibid. s. 4 ; or where in the deed by posed of. 
 which such land was conveyed to him, or by any deed 
 executed by him, it shall be declared that his widow shall 
 not be entitled to dower out of such land : s. 6. 
 
 Before this Act there was no dov/er out of trust estates : Before the 
 Burgess v. Wheate, 1 Ed. 197 ; Dixon v. Saville, 1 B. C. C. ■^"'• 
 ;?26 ; D'Arcy v. Blake, 2 Sch. & L. 391 ; see Roper v. 
 Roper, 3 Ch. D. 714, 719 ; Daiuson v. Bank of White- 
 haven, 6 Ch. D. 221 ; Macq., Husband and Wife, p. 170 
 et seq. 
 
 Or out of an equity of redemption : Dixon v, Saville, 1 Equity of 
 B. 0. C. 326 ; Casborne v. Scarfe, 1 Atk. 605 ; see as tf„t"^' 
 to cases since the Act, Jones v. Jones, 4 K. & J. 361. 
 
 And if the wife concurred in the mortgage, her right to 
 
270 
 
 DOWER — CURTESY. 
 
 Freebonch. 
 
 Gavelkind. 
 
 Freehold 
 leased for 
 lives. 
 
 Executory 
 devise over. 
 
 Proceeds o£ 
 sale. 
 
 dower was extinguished, and slie had no right to redeem, 
 unless the equity of redemption was limited to her in 
 such a way, as that it appeared that she was to regain 
 what she had lost by her concurrence : Dawson v. Bank 
 of Whitehaven, 6 Ch. D. 218 ; and see Jackson v. Parker, 
 Amb. 687 ; Jackson v. Jn7ies, 1 Bligh. 104 ; 33 Vict. c. 
 14, s. 2. 
 
 Neither before nor since the Act could a widow claim 
 freebench out of equitable estates : Forder v. Wade, 4 B. 
 C. C. 520 ; Powdrell v. Jones, 2 Sm. & G. 407 ; Smith v. 
 Adams, 5 D. M. & G. 712. 
 
 But she can claim dower out of gavelkind lands : Farley 
 V. Bonham, 2 J. & H. 177. 
 
 A widow is not dowable out of freehold leased for lives, 
 unless the lives drop during the marriage : D'Arcy v. 
 Blake, 2 Sch. & L. 387 ; but see Sheaf v. Cave, 24 
 Bea. 259. 
 
 An executory devise over upon the husband dying 
 without issue living at his death, after an equitable fee, 
 does not prevent dower from attaching, though the 
 limitation over take effect : Smith v. Spencer, 2 Jur. 
 N. S. 778. 
 
 A widow can now claim her dower out of the proceeds of 
 sale of property mortgaged by her husband after the debt 
 is satisfied : Jones v. Jones, 4 K. & J. 3C 1 ; but see Daivson 
 v. Bank of Whitehaven, 6 Ch. D. 218. 
 
 She is not dowable out of a trust fund representing the 
 sale monevs of residuary real and personal estate if she 
 takes an annuity out of the same fund : Lacey v. Hill, 19 
 Eq. 346 ; and see Rowland v. Guthhertson, 8 Eq. 466. 
 
 As to the mode of barring dower since the Act, see 2 
 Dav. Free. Pt. I. 231, 283, 389. 
 
 In sepa- 
 rate estate 
 of Tvife. 
 
 Curtesy. 
 
 A husband is entitled to curtesy in the equitable estate 
 of inheritance of his wife, settled to her sepai-ate use, if 
 there be issue capable of inheriting it, and she have not 
 made an effectual disposition of it : Watts v. Ball, 1 P. 
 
CURTESY. 27 1 
 
 W. 108 ; Lushington v. Sewell, 1 Sim. 435 ; Roberts 
 V. Dixiuell, 1 Atk.607 ; Morgan v. Morgan, 5 Madd. 408 ; 
 Follett V. Tyrer, 14 Sim. 125 ; Burgess v. Wheate, 1 Ed. 
 196 ; Appleton v. Rowley, 8 Eq. 139 ; Cooper v. Ifac- 
 cZonaZc?, 7 Ch. D. 288, 297. 
 
 [Hearle v. Greenhank, 3 Atk. 695, and Moore v. 
 Webster, 3 Eq. 267, contra, are disapproved.] 
 
 The husband is entitled, though the property is vested Separate 
 during the life of the wife for her separate use, with a "^''^ 
 remainder over to her, in default of appointment, in fee : 
 Morgan v. Morgan, 5 Madd. 408 ; Follett v. Tyrer, 14 
 Sim. 125. 
 
 An equitable estate tail in the wife with a restraint Equitable 
 against anticipation may be effectually barred in con- ^^***® **''• 
 currence with her husband, and her subsequent disposal 
 of the fee by will oust the husband's right to curtesy : 
 Coo]Der V. Macdonald, 7 Ch. D. 288. 
 
 If the coverture begins after an adverse possession has Effect of 
 commenced, and terminates during the continuance of 
 such adverse possession, — or if both the trustee and 
 cestui que trust are disseised before the equitable estate 
 of the wife begins, by a party claiming by a title para- 
 mount to the trust, and who retains possession till after 
 the death of the wife, — the husband would not acquire 
 any title as tenant by the curtesy : Parker v. Carter, 4 
 Ha. 416. As to the exclusion of the equitable seisin by 
 an adverse possession, see Be Gny v. Richardson, 3 Atk. 
 469 ; Grenville v. Blyth, 16 Ves. 224 ; Casburne v. 
 Inglis, 2 J. & W. 194. 
 
 adverse 
 possession. 
 
CHAPTER XXXVI. 
 
 "Where 
 property 
 in danger. 
 
 Imminent 
 insol'"ency 
 of the 
 trustee. 
 Before writ 
 served. 
 
 Bank- 
 ruptcy of 
 trustee. 
 
 Bank- 
 ruptcy 
 after ad- 
 ministra- 
 tion decree. 
 
 Settlor's 
 knowledge 
 of insol- 
 "vcncy. 
 
 After joss 
 of part of 
 fund lost. 
 
 Other 
 breaches 
 of trust. 
 
 EIGHT OF CESTUI QUE TEUST TO A RECEIVEE — PAYMENT 
 INTO COURT— ATTACHMENT FOE NON-PAYMENT — IN- 
 JUNCTION — TO COMPEL TRUSTEES TO ASSEET LEGAL 
 EIGHTS — NE EXEAT — CRIMINAL PROCEEDINGS. 
 
 A EECEIVEE will be appointed on an interlocutory ap- 
 plication upon evidence that the trust property is in 
 danger of being wasted : Middleton v. Dodsivell, 13 Ves. 
 269 ; Barkley v. Reay, 2 Hare, 308. 
 
 The apprehended insolvency of the trustee is good 
 ground for the application : Ibid. 
 
 And in such a case the Court has appointed a receiver 
 ex parte before the service of the writ in an action for 
 administration : Re H., 1 Ch. D. 276. 
 
 And actual bankruptcy is always a sufficient reason : 
 Scott V. Becher, 4 Price, 346 ; Bainhrigge v. Blair, 1 Bea. 
 495. 
 
 And a receiver may be appointed after an administra- 
 tion decree upon the bankruptcy of the sole trustee and 
 defendant, though the trustee in bankruptcy be not before 
 the Court : Steele v. Cohham, 1 Ch. 325. 
 
 The fact that a testator must have known of proceed- 
 ino-s in bankruptcy having been taken against the trustee 
 appointed by his will does not prevent the application : 
 Langley v. Hawl, 5 Madd. 46. 
 
 Where part of the fund has been lost, that is priiivd 
 facie evidence of a breach of trust sufficient to authorise 
 the interference of the Court by the appointment of a 
 receiver : Evans v. Coventry, 5 D. M. & G. 918. 
 
 And where a trustee omitted to get in the trust estate 
 and left a considerable part of it on improper securities, 
 
EECEIVBE. 373 
 
 besides failing to raise a sum intended for the mainte- 
 nance of infants, a receiver was appointed : Richards v. 
 Perkins, 3 Y. & C. 299. 
 
 So also where, in consequence of a disagreement between Disagree- 
 the trustees, the tenant for life could not otherwise obtain ™''°*" 
 payment of his income : Bagot v. Bagot, 10 L. J. Ch. 123 ; 
 Wilson V. Wilson, 2 Keen, 249. 
 
 It seems that upon refusal to act by all the trustees Kefusal of 
 except one, a receiver may be appointed at the instance ^°™®*°'^'=*- 
 of all the beneficiaries : Brodie v. Barry, 3 Mer. 695 ; 
 Beaiomont v. Beaumont, cited, Ibid.; Tait v. Jenldns, 
 1 Y. & C. C. C. 492 ; Palmer v. Wright, 10 Bea. 234, 
 237. 
 
 And a receiver was appointed where one of three trus- 
 tees refused to act, and the rest acted alone and advanced 
 trust money on security without their co-trustee : Siuale v. 
 Swale, 22 Bea. 584. 
 
 But the disclaimer, inaction, or absence abroad of one Disclaimer, 
 of several trustees is not a ground alone for the appoint- ™*''*i°'i <"■ 
 ment of a receiver without the consent of the co-trustees : 
 Browell v. Reed, 1 Hare, 434. 
 
 But absence of a sole trustee abroad or out of the juris- Trustee 
 diction is sufficient ground : Noad v. BacJehouse, 2 Y. & ^^'^°^'^- 
 a C. C. 529 ; Snuih v. Smith, 10 Ha. App. Ixxi. 
 
 So also it seems is the case of all the trustees except 
 one being out of the jurisdiction : Tidd v. Lister, 5 Madd- 
 433. 
 
 Mere poverty of the trustee is no reason for the ap- Poverty, 
 pointment : Howard v. Papera, 1 Madd. 142 ; Anon., 
 12 Ves. 4. 
 
 But coupled with charges of bad character, drunken Charges of 
 and violent conduct, poverty will be taken into account : j^™" ^' 
 Everett v. Prythergch, 12 Sim. 367. 
 
 Where trustees have to manage a business and they are Receiver 
 not themselves qualified, they should agree in appointing ^^^fer 
 a manager ; if they do not the Court will appoint a re- 
 ceiver and manager : Hart v. Penham, W. N., 1871, 2. 
 
 A receiver will be appointed at the instance of the re- Tenant for 
 
274 
 
 RECEIVER — PAYMENT INTO COURT. 
 
 life not 
 renewing 
 
 Trustees 
 haTing in- 
 consistent 
 duties. 
 
 Security. 
 
 Waiver of 
 security. 
 
 Costs. 
 
 Discharge. 
 
 mainderman where a tenant for life is under an obligation 
 to renew leaseholds, and there is danger of his omitting so 
 to do : Bennett v. Golley, 2 M. & K. 233 ; see ante, p. 149. 
 
 Where trustees accepted an additional and different 
 trust, the validity of which was disputed, it was held that 
 their duties must clash, and a receiver was appointed : 
 Talbot V. Scott, 4 K. & J. 139. 
 
 In general receivers must enter into recognisances : 
 Mead v. Orrery, 3 Atk. 237. 
 
 Receivers must give security, unless all the cestuis que 
 trust are sui juris and consent to their acting without : 
 Carlisle v. BerMey, Amb. 59.9 ; Riclout v. Plymouth, 1 
 Dick. 68 ; Manners v. Furze, 11 Bea. 30 ; Tylee v. Tylee, 
 17 Bea. 58.3. 
 
 The ordinary expenses of the receivership are not ap- 
 portioned between tenant for life and remainderman, but 
 are payable by the tenant for life : Shore v. Shore, 4 Drew. 
 510. 
 
 The receiver will be discharged when new trustees are 
 appointed by the Court : Bainbrigge v. Blair, 3 Bea. 421. 
 But, having been appointed for the benefit of all the cestuis 
 que trust, he will not be discharged at the sole instance of 
 the party who procured his appointment: Ibid.; and see 
 Davis V. Marlborough, 2 Swans. 118. 
 
 Motion for 
 payment in 
 by trustees 
 and ac- 
 counting 
 parties. 
 
 Directors, 
 
 Agent?, 
 
 Order, for Payment into Court by Trustees upon 
 Admission. 
 
 In actions against trustees the plaintiff is, upon a clear 
 admission by the defendant that he has, or has had, or 
 ought to have had, the trust fund, or assets representing 
 it, in his hands, entitled to move that the admitted fund 
 may be secured in Court : Nokes v. Seppings, 2 Ph. 19 ; 
 Hagell v. Carrie, 2 Ch. 449. 
 
 Directors are in the position of trustees with reference 
 to this rule : Hichens v. Congreve, 1 B. & M. 150, n. ; 
 Hagell v. Currie, supra. 
 
 go also are agents ; Dunne v, English^ 18 Ecj. 524, 
 
PAYMENT OP TRUST FUNDS INTO COURT. 275 
 
 If the plaintiff is merely contiDgently entitled he may Cestui que 
 still move for payment in : Bartlett v. BaHlett, 4 Ha. 631 ; urgently" 
 MarryatY. Marryat, 23 L. J. Ch. 876; Governesses' Bene- eutitJcd. 
 volent Institivtion v. Rioshbridger, 18 Beav. 467; but sec 
 -Ross V. iioss, 12 Bea. 89. 
 
 The admission must be clear and distinct (Freeman v. Admission 
 Fairlie, 3 Mer. 24 ; Ragell v. Currie, suprcv) ; and there- clear, 
 fore no order will be made -where the defendant does not Invcst- 
 specify in what investments the fund is : Hinde v. Blake, ^jecifieT.' 
 4 Bea. 597. 
 
 The rule equally applies where the trustee shows, by his Misappiica- 
 admission, that the property having been invested in an trust 
 unauthorised manner, has been diverted from the trust ^"''^• 
 fund. Thus orders have been made where the money was Personal 
 lent on a promissory-note : Vigrass Y.Binfield, 3 Madd. 62. ^^°°" ^' 
 
 To the trustee's firm : Roy v. Gibbon, 4i Ha. 65. Loan to co- 
 
 To a cestui que trust : Collis v. ColUs, 2 Sim. 365. *''"'''^- . 
 
 To ccstwb 
 
 On an unauthorised security : CosteJcer v. Horrox, 3 Y. que trust. 
 
 & G. Ex. 530. On un- 
 
 On insufiicient security, where the power to invest was secur°ity '^'^ 
 on "good " security : Bourne v. Mole, 8 Bea. 177 ; see On insnffi-- 
 also Wyatt v. Sharratt, 3 Bea. 498 ; Ingle v. Partridge, ^|^^^^* ''^■ 
 32 Bea. 661 ; Wiglesiuorth v. Wiglesworth, 16 Bea. 269 ; 
 Nokes V. Seppings, supra. 
 
 The application is usually made before the trial of the when 
 action : Freeonan v. Fairlie, supra ; Peaeham v. Baiu, 6 ™°*'™ 
 Madd. 98 ; Riehardson v. Bank of England, 4 M. & Cr. made. 
 165; Rothwell v. Rothwell, 2 S. & S. 217; Mortlock v. 
 Leatlies, 2 Mer. 491. But it may be made at the trial : 
 Isaacs V. Weatherstone, 10 Ha. App. xxx. 
 
 If the admission be contained in an afiidavit as to ac- 
 counts, the order may be made after the trial, and before 
 further consideration ; Binns v. Parr, 7 Ha. 288; Dunne 
 V. English, 18 Eq. 524. 
 
 Evidence is not adducible to make out the fact that the Evidence 
 
 fund is in the defendant's hands : Richardson v. Bank of '?^'i°"?= 
 
 ■' SI Die, 
 
 England, I M, ^ Or, 165, 176 ; Boschettiv. Power, 8 Bea, 
 
 98, 
 
 ?; 3 
 
276 
 
 PAYMENT INTO COURT — ATTACHMENT. 
 
 Admission 
 of plain- 
 tiff's title. 
 
 Plaintiff 
 may not 
 pick out 
 his right 
 from 
 defendant's 
 
 Breach of 
 trust must 
 be shown. 
 
 Notice 
 of motion 
 to specify 
 fund. 
 
 And the fact that the Court may feel satisfied that the 
 defendant has the fund ■ does not alter the case : Fox v. 
 Mackreth, 1 Ves. Jun. 69 ; Mills v. Hanson, 8 Ves. 68, 91 ; 
 Quarrell v. Beckford, 14 Ves. 177. 
 
 It is also necessary that the defendant should admit a 
 trust in favour of the plaintiff (Bolder v. Bank of Eng- 
 land, 10 Ves. 352), unless it is clear from the facts that 
 the plaintiff's title will be established at the trial : Whit- 
 more V. T'lorquand, 1 J. & H. 296 ; Duhless v. Flint, 4 M. 
 & Cr. 5'02 ; McHardy v. Hitchcock, 11 Bea. 75 ; Bank of 
 Turkey v. Ottoman Co., 2 Eq. 366. 
 
 But in a special case the plaintiff was allowed to traverse 
 the defendant's denial of his title : Doviville v. Solly, 2 
 Kuss. 372. 
 
 The plaintiff must rely on his own case, and may not 
 move on the ground that in some other right shown by the 
 defendant the fund ought to be brought iu, unless such 
 other right discloses a breach of trust by the defendant : 
 Proudfoot V. Hume, 4 Bea. 476 ; Wiglesworth v. Wigles- 
 worth, 16 Bea. 271. 
 
 No order will be made if an alleged misapplication or 
 breach of trust is not made out, as in the case where there 
 is a power to vary, and a reinvestment of the proceeds of a 
 sale is intended, but not yet effected : Meyer v. Montriou, 
 4 Bea. 343 ; Futter v. Jackson, 6 Bea. 424 ; Talhot v. 
 Marshfield, 2 Dr. & Sm. 285. 
 
 The notice of motion must specify the funds required to 
 be paid in : Nokes v. Seppings, 2 Ph. 19. 
 
 Exception 
 from 
 Debtors' 
 Act, 1869. 
 
 Attaci- 
 
 Attachment for Non-payment. 
 
 The Debtors' Act, 1869 (32 & 33 Vict. c. 62), s. 4, 
 abolishes imprisonment for debt, but excepts from its 
 operation the case of default by a trustee or person acting 
 in a fiduciary capacity, and ordered to pay into a court of 
 equity any sum in his possession or under his control 
 (sub.-sect. 3). 
 
 Applications for attachment under this section should 
 
ATTACHMENT OF TRUSTEES. 277 
 
 not be made ex- parte: Ferguson v. Ferguson, 10 Ch. mentnot 
 661. As to the present practice in Attachment, see Order "^l^^rte 
 XLIV., Morgan & Chute, p. 779; Peel's Practice, 134 eif 
 seq. 
 
 The Debtors' Act, 1878, gives a discretion to the judge 
 as to attachment. 
 
 It seems to be understood that the section extends 
 to an application under 41 Geo. 3, c. 90, to commit 
 for disobedience to a decree of the Court of Chancery 
 in Ireland ordering payment of money by a trustee : 
 Ferguson v. Ferguson, supra; and see Dan. Ch. Pr. 
 934. 
 
 A creditor who has received money from a bankrupt by Person in 
 way of fraudulent preference, and has been ordered to capao%^ 
 repay it to the trustee in bankruptcy, is not a person 
 " acting in a fiduciary capacity " within the meaning of 
 the sub-section : Exp. Hooson, 8 Ch. 231. 
 
 The fact, that the trustee has spent the money which he Attacli- 
 has been ordered to pay into Court, and his inability to though 
 refund it, are not sufficient to protect him from arrest : ™oney 
 Middleton v. Chichester, 6.Ch. 152. 
 
 Nor does the poverty alone of the defaulting trustee Poverty, 
 give any jurisdiction to release him : -Ransom v. Boyd, 
 W. N., 1877, 236. 
 
 The joint and several liability of trustees for misappro- Liability of 
 priation by their co-trustees extends to the case of a t^g'tee*"'^ 
 trustee who, though he has never had the management of 
 the funds, is ordered to pay into Court, and he is therefore 
 liable to attachment for non-payment ; Evans v. Bear, 10 
 Ch. 77. 
 
 If the sum ordered to be paid into Court is one which "Wilful 
 the trustee has, b}' his wilful default or neglect, never had " * ' 
 in his possession or control, he has never been enriched 
 by it, and is not liable to attachment in respect of it : 
 Middleton v. Chichester, 6 Ch. 152, 158 ; Ferguson v. 
 Ferguson, 10 Ch. 661. 
 
 Thus, if it appears that part of the amount claimed con- Interest, 
 sists of interest which is unascertained, such interest is 
 
278 
 
 ATTACHMENT — ENFOKCINU LEGAL EIGHTS, 
 
 Bank- 
 ruptcy 
 Act, 1869, 
 s. 12. 
 
 Where 
 trustee 
 bankrupt. 
 
 not a sum which the Court can say was ever in the 
 trustee's possession, and the Court will not direct an 
 attachment in respect of the principal and interest so 
 circumstanced : Middleton v. Chichester, 6 Ch. 159. 
 
 By s. 12 of the Bankruptcy Act, 1869 (32 & 33 Vict., 
 c. 71) " where a debtor shall be adjudicated a bankrupt, 
 no creditor to whom the bankrupt is indebted in respect 
 of any debt provable in the bankruptcy, shall have any 
 remedy against the property or person of the bankrupt in 
 respect of such debt, except in manner directed by this 
 Act." 
 
 In consequence of this enactment it is held that a 
 trustee, who has been ordered to pay into Court money 
 which was mixed with his own, and is at the same time 
 adjudicated bankrupt, cannot be retained under arrest, 
 the debt being one "provable in the bankruptcy," 
 although not one which would be released by an order 
 of discharge : Gobham v. Balton, 10 Ch. 655. 
 
 But the section does not apply to composition : Pashler 
 V. Vincent, 8 Ch. D. 825. 
 
 But where the attachment issues before the bank- 
 ruptcy, the bankrupt trustee cannot use his bankruptcy 
 as a reason for obtaining his discharge: Lewes v. Barnett, 
 6 Ch. D. 252. 
 
 Right to 
 compel 
 trustees 
 to assert 
 legal title. 
 
 Though 
 action de- 
 ferred at 
 instance of 
 benefi- 
 ciaries. 
 
 Of Proceedings to compel Trustees to Assert their Legal 
 Rights. 
 
 If the legal estate in property is in trustees, and they 
 refuse to assert their legal right to it, any beneficiary, 
 however remotely interested, may go to the Court to com- 
 pel the trustees to assert their legal property : Foley v. 
 Bthvnell, 1 B. C. C. 274, 276 ; Lechmere v. Carlisle, 3 P. 
 W. 215. 
 
 And though cestuis que tmst authorised the trustee to 
 allow fund to remain outstanding against the express 
 provisions of the trust, the trustee was held bound to 
 briug an action for it without an indemnity, and, on his 
 
INJUNCTION. 279 
 
 default, to pay the costs of the suit to compel him so to Indemnity. 
 do : Kirby v. Mash, 3 Y. & C. 295. 
 
 A cestui que trust's right under a voluntary covenant to Action on 
 
 IT,, o 1 /.I ; • voluntary 
 
 recover the debt out oi the assets of the covenantor, is covenant. 
 unaffected by the trustee's refusal to sue on the covenant : 
 Fletcher v. Fletcher, 4 Ha. 67. 
 
 It seems that a cestui que trust, though an infant, will ^''s'"* 2«« 
 be barred, if the trustee do not bring his action within the tarred by 
 statutory period : Hovenden v. Annesley, 2 Sch. & L. ^^^g^'^"* 
 629 ; Wych v. East India Co., 3 P. W. 309 ; and see 
 further, post. 
 
 A cestui que trust cannot give authoiity to a solicitor Using ^ 
 to institute proceedings in the trustee's name to recover name to 
 the legal interest, without the concurrence of the trustee : ^'^^• 
 Orossley v. Crowther, 9 Hare, 384, 386. 
 
 As to the frame of allegations to support a claim arising Forro of 
 from a refusal by a trustee to sue, see Jerdein v. Bright, 
 2 J. & H. 325. 
 
 Injunctions against Trustees. 
 An iniunction is the proper remedy to restrain a trustee Where 
 
 sranteci 
 
 from an act involving a breach of trust intended to be 
 done ; and that though the act may not in its conse- 
 quences be irremediable : Attorney-General v. Mayor of 
 Liverpool, 1 M. & C. 171 ; Milligan v. Mitchell, 1 M. & K. 
 452 ; Wiles v. Gresham, 1 Eq. Rep. 348. Pechel v. Fowler, 
 2 Anst. 549, and Mansfield v. Shaw, 3 Madd. 100, are not 
 now approved. 
 
 An injunction may be obtained by a trustee to restrain Against 
 his co-trustee from committing a breach of trust : Chertsey '^'^' ^^ ^^' 
 Market Case, 6 Price, 279. 
 
 Injunctions have been granted — Examples : 
 
 To restrain an executor and trustee who had become Against 
 bankrupt, from recovering the trust estate : Gladdon v. trustee."" 
 Stoneman, 1 Madd. 143 n. 
 
 To restrain a purchaser from completing a purchase Against 
 from a trustee for sale who had imposed depreciating on'sair^'^ 
 
280 
 
 INJUIfCTION — NE EXEAT. 
 
 deemed 
 breach of 
 trust. 
 
 Friendly 
 
 Society 
 
 trustees. 
 
 Against 
 appointing 
 new trustee 
 pendente 
 lite. 
 
 Against 
 trustee o£ 
 power of 
 sale in 
 mortgage. 
 
 Inquiry as 
 to benefit 
 from il- 
 legal act. 
 
 conditions ; Dance v. Goldingham, 8 Ch. 902 ; Merest 
 Y.Murray, 14 L. T. N. S. 321; and see Vann v. Barnett, 
 2 B. C. C. 157 ; Bede v. Oalces, 4 D. J. & Sm. 505, ante, 
 p. 120. 
 
 To restrain trustees of a Friendly Society from applying 
 funds in a manner dangerous to the -well-being of the 
 society : Beeve v. Parkins, 2 J. & W. 390. 
 
 To restrain a trustee from appointing a new trustee 
 without the sanction of the Court, when the estate was in 
 the course of administration by it : Webb v. Shaftesbury, 
 7 Ves. 487 ; see ante, p. 200. 
 
 To restrain a trustee in whom the power of sale in a 
 mortgage was vested, from selling, without giving notice 
 to the mortgagor : Anon., 6 Madd. 10 ; Harding v. 
 Pingey, 10 Jur. N. S. 872 ; and see Prichard v. Wilson, 
 10 Jur. N. S. 330 ; Gill v. Newton, 12 Jur. N. S. 220. 
 
 Where a trustee without authority sold lands purchased 
 with trust-money, the injunction was postponed to an 
 inquiry as to whether the sale would be for the benefit 
 of infant cestuis que trust : Wiles v. Gresham, 1 Eq. 
 Rep. 348. 
 
 Nature of 
 writ. 
 
 Demand 
 must be 
 equitable. 
 
 Interest 
 may be 
 vested 
 liable to 
 divest. 
 
 Ne Eaxat against Trustees. 
 
 A writ of we exeat regno is granted on the application 
 of a cestui que trust interested in property for which the 
 trustee, proved to be intending an escape from the juris- 
 diction, may be liable in an action in the Chancery Di- 
 vision : Leake v. Lealce, 1 J. & W. 605 ; Beames on Ne 
 Exeat, p. 52 ; and see Sobey v. Sobey, 15 Eq. 200. 
 
 The demand must be of a purely equitable nature, 
 enforceable only in a Court of Equity: Ibid.; Graves v. 
 Griffith, 1 J. & W. 646 ; Grant v. Grant, 3 Russ. 598. 
 
 The interest of the cestui que trust must be a present 
 vested interest, though such an interest liable to be di- 
 vested will be enough to support the application for the 
 writ : Hoiukins v. Howkins, 1 Dr. & Sm. 75, in which the 
 bill was by infants, interested as a class under a gift to 
 
CKIMINAL LIABILITY OF TRUSTEES. 281 
 
 them, followed by a gift over in case of the death of all of 
 them under 21. 
 
 For the practice with regard to writs of ne exeat, see Practice. 
 Dan. Ch. Pr., Gh. XXXVIII. p. 1584 et seq.; Additional 
 Rules, Aug., 1875, Order V., r. 10 ; Morgan & Chute, p. 
 625. 
 
 Griiniinal Liability of Trustees. 
 
 The criminal liability of trustees is regulated by ss. 80 
 and 86 of the Larceny Act, 24 & 25 Vict., c. 96, which 
 sections are as follows : — 
 
 " Whosoever being a trustee of any property for the use 
 or benefit, either wholly or partially, of some other person, 
 or for any public or charitable purpose, shall, with intent 
 to defraud, convert, or appropriate the same or any part 
 thereof to or for his own use or benefit, or the use or 
 benefit of any person other than such person as aforesaid, 
 or for any purpose other than such public or charitable 
 purpose as aforesaid, or otherwise dispose of or destroy 
 such property or any part thereof, shall be guilty of a mis- 
 demeanor, and, being convicted thereof, shall be liable to 
 [penal servitude for any term not exceeding seven years 
 and not less than three years, or imprisonment for any 
 term not exceeding two years, with or without hard laboui', 
 and with or without hard labour] — provided that no pro- 
 ceeding or prosecution for any offence included in this 
 section shall be commenced without the sanction of Her 
 Majesty's Attorney-General . . . provided also that where 
 any civil proceeding shall have been taken against any 
 person to whom the provisions of this section may apply, 
 no person who shall have taken such civil proceeding shall 
 commence any prosecution under this section without the 
 sanction of the Court or Judge before whom such civil 
 proceeding shall have been had or shall be pending:" 
 s. 80. 
 
 " Nothing in the last 1 1 preceding sections of this Act 
 contained, nor any proceeding, conviction, or judgment to 
 be had or taken thereon against any person under any of 
 
2S2 CRIMINAL LIABILITY. 
 
 the said sections, shall prevent, lessen, or impeach any 
 remedy at law or in equity -which any party aggrieved by 
 any offence against any of the said sections might have 
 had if this Act had not been passed ; but no conviction of 
 any such offender shall be received in evidence in any 
 action at law or suit in equity against him ; and nothing 
 in the said sections contained shall affect or prejudice any 
 agreement entered into or security given by any trustee 
 having for its object the restoration or repayment of any 
 trust property misappropriated:" s. 86. 
 
 The liability of agents, bankers, merchants, brokers, or 
 solicitors, is not to be confounded with that of trustees 
 properly so called, and this distinction is expressly pre- 
 served by s. 75 of the Act in relation to the property 
 comprised in, or affected by, any trust. 
 
 And the trust must have distinctly arisen, and not be 
 one to arise upon some event which at the time of the 
 indictment has not happened : R. v. White, 4 Car, & 
 P. 46. 
 
 The Court will, in a case in which a conversion and 
 appropriation by a trustee is clearly shown to have taken 
 place, grant its leave to prosecute under the Act as a 
 matter of course : Wadham v. Rigg, 1 Dr. & Sm. 216. 
 
 Striking Solicitor-Trustee of the Rolls. 
 
 Where, in the course of an action, it appears that 
 a sokcitor has obtained moneys arising from the trust, 
 the Court may, ex propria motu, order him to show cause 
 "why he should not be struck off the Rolls : Goodwin v. 
 Gosnell, 2 Coll. 457, 461 ; Re Chandler, 22 Bea. 253 ; 
 ThorndiJce v. Hunt, 5 Jur. N. S. 879 ; Thompson v. 
 Finch, 25 L. J. Ch. 681. See forms of orders, Seton, 651. 
 
CHAPTEE XXXVIl. 
 
 OF CHARGING TRUSTEES WITH INTEREST FOR BREACH 
 OF TRUST. 
 
 Simple interest at 4 per cent, is the rate usually charged 
 against trustees who retain balances in their hands which 
 they ought to have invested, as they are presumed to have 
 made interest to that extent : Jones v. Foxall, 15 Bea. 
 392 ; Knott v. Cottee, 16 Bea. 80 ; Robinson v. Robinson, 
 1 D. M. & G. 264 ; Johnson v. Prendergast, 28 Bea. 480 ; 
 Attorney-General v. Alford, 4 D. M. & G. 843. 
 
 A trustee is not excused because he has kept an 
 adequate sum at his bankers, or can prove his solvency : 
 Franklin v. Frith, 3 B. C. C. 433 ; Piety v. Stace, 
 4 Ves. 622. 
 
 Though directed to lay out the fund, it requires a 
 special case of corruption as distinguished from negligence 
 to charge him with more than 4 per cent. : Tehbs v. Car- 
 penter, 1 Madd. 290. 
 
 Especially if the trusts are onerous, and the trustee can 
 show other extenuating circumstances : Ibid. ; Crackelt 
 V. Bethune, 1 J. & W. 588. 
 
 Ketention of a legacy, though coupled with neglect to 
 communicate the fact of the bequest to the legatee, is not 
 a case for a greater rate of interest than 4 per cent. : 
 Attorney-General v. Alford, 4 D. M. & G. 843. 
 
 If the trustee pay money to wrong persons, and retain 
 a share for himself under a bond fide mistake of law, he is 
 chargeable only with 4 per cent, on his own share : Salt- 
 marsh V. Barrett, 31 Bea. 349 ; and see Mousley v. Carr, 
 4i Bea. 49 ; Attorney-General v. Kohler, 9 H. L. C, 655 ; 
 
 Four pel- 
 cent. 
 
 charged on 
 uninvesleil 
 moneys. 
 
 Solvency 
 not an 
 excuse. 
 
 Distinction 
 between 
 negligence 
 and fraud. 
 
 Onerous 
 trusts. 
 
 Non-com- 
 munication 
 of bequest 
 
 Wrong 
 payment by 
 bond fide 
 mistEJse. 
 
284 INTEREST PAYABLE BY TRUSTEES. 
 
 and as to a mistaken payment of interest, see Remnant v. 
 
 Hood, 2 D. F. & J. 404. 
 Security Though a trustee joined with his partners in a bond at 
 
 trust *™ ^ P®'^ ^®'^''- *° secure moneys for which he was accountable, 
 moneys. he was charged only with 4 per cent, as such trustee : 
 
 Fletcher v. Green, 33 Bea. 426. 
 Interest Interest may be charged against a trustee on further 
 
 thou"li consideration, on uninvested balances in his hands, though 
 not prayed, not prayed by the statement of claim : Goodyere v. Lake, 
 
 Amb. 584 ; Twrner v. Turner, 1 J. & W. 39 ; Pearse v. 
 
 Green, 1 J. & W. 135 ; Hollingsworth v. Shakeshaft, 14 
 
 Bea. 497 ; Holgate v. Haworih, 17 Bea. 259 ; Johnson v. 
 
 Prendergast, 28 Bea. 480 ; Blogg v. Johnson, 2 Ch. 229. 
 Secus, But where compound interest is asked it seems that a 
 
 pound case for that purpose ought to be made by the statement 
 
 interest of claim : Burdick v. Garrick, 5 Ch. 243. 
 
 asked. i- i i ■ 
 
 Interest on Irustees are not liable to pay interest on the aggregate 
 sum found sum found by the Chief Clerk to be due in respect of 
 clerk.''* arrears of an annuity, or of income, unless there has been 
 misconduct or opposition to the orders of the Court : Greuze 
 V. Hunter, 2 Ves. Jun. 157, 163 ; Aylmer v. Aylmer, 1 
 Moll. 87 ; Martyn v. Blake, 3 Dr. & W. 125 ; Mansfield v. 
 Ogle, 4 D. & J. 41 ; Blogg v. Johnson, 2 Ch. 228. 
 
 Mere legal delay in procedure is no ground : MaHyn v. 
 Blake, supra ,• Mansfield v. Ogle, supra ; Blogg v. John- 
 son, 2 Ch. 230. 
 
 The question is unaffected by the Statute of Limita- 
 tions (3 & 4 Wm. 4, c. 42) : Martyn v. Blake, supra ; 
 Booth V. Leycester, 3 M. & Cr. 459 ; Re Powell, 10 Ha. 
 134 ; Mansfield v. Ogle, supra; and see Crossley v. 
 City of Glasgow Life Offce, 4 Ch. D. 421. 
 
 And the sum found by the certificate is not, even after 
 
 confirmation, an order for payment of money which would 
 
 bear interest under 1 & 2 Vict. c. 110 : Martyn v. Blake, 
 
 supra ; Mansfield v. Ogle, supra. 
 
 Five per Simple interest at 5 per cent, is usually charged against 
 
 case of^ trustees who are accountable for money through a direct 
 
 breach of breach of trust ; or have been guilty of other acts of mis- 
 
INTEREST PAYABLE BY TRUSTEES. 285 
 
 conduct contributing to the particular result : Tebhs v. Car- trust or 
 l^enter, 1 Madd. 290 ; Crachelt v. Bethune, IJ. & W. 588- ; ^^°''- 
 Jones V. Foxall, 15 Bea. 391 ; Knott v. Cottee, 16 Bea. 77 ; 
 Attorney-General v. Alford, 4 D. M. & G. 843 ; Mayor of 
 Berwick v. Murray, 7 D. M. & G. 519 •,Vyse v. Foster, 8 
 Ch. 329, L. K. 7 H. L. 337. 
 
 The ground of this rule is, that the trustee should be GfrounJ of 
 charged with the interest which he has received, or which 
 he ought to have received, or which it is so fairly to be 
 presumed that he did receive, that he is estopped from 
 saying that he did receive it: Attorney-General v. Alford, 
 supra. 
 
 " It is not by way of punishment that the Court charges Not 
 a trustee with more than he has received, or ought to ^p-Jnalty. 
 have received, and the appropriate interest thereon. It is 
 simply on the ground that the Court finds that he actually 
 made more, constituting moneys in his hands had and 
 received to the use of the cestui que trust : '' Vyse 
 v. Foster, 8 Ch. 333 ; and see Attorney-General v. Alford, 
 siupra ; Burdick v. Garrick, 5 Ch. 241. 
 
 If a trustee sells stock unnecessarily, and deals with the Stock sold 
 money, he must replace the stock, or its value with 5 per breach of 
 cent. : Pocock v. Reddington, 5 Ves. 794 ; Crackelt v. *'^^*- 
 Bethune, supra. 
 
 If he calls in money out on good security at 5 per cent. Calling in 
 he is chargeable at that rate : Mosley v. Ward, 11 Ves. purities' 
 581 ; Jones v. Foxall, 15 Bea. 392. 
 
 Although "in odium spoliatoris omnia prcesumunt- Keeping ^ 
 ur," the Court charges no more than 5 per cent, against fraudulent 
 a trustee who may be taken to have kept money intent, 
 in his hands, fraudulently meaning to appropriate it : 
 Attorney-General v. Alford, supra. 
 
 Nor if he makes a false representation that debts are Misrepre- 
 stiU due : CracJcelt v. Bethune, IJ. & W. 586. mentation. 
 
 Or shows false accounts : Stackpoole v. Stackpoole, False ao- 
 4 Dow. 209. °°"'*^- 
 
 Or if he refuse to account : Wroe v. Seed, 4 Giff. 425. KefusaJ to 
 
 It seems that disobedience of a direction to invest in p. ,. 
 
286 
 
 INTEREST PAYABLE BY TBUSTEES. 
 
 to invest 
 in "good 
 security. 
 
 Receiver 
 charged. 
 
 Banli- 
 raptcy 
 trustee's. 
 
 Five per 
 cent, on 
 moneys 
 embarked 
 in trade. 
 
 on the 
 profit 
 made. 
 
 Inquiry as 
 to profits. 
 
 Both in- 
 terest and 
 profits not 
 claimable. 
 Profits 
 partly 
 and in- 
 terest 
 partly. 
 
 Charging 
 
 persons 
 
 engaged 
 
 vith tru?' 
 
 "good securities," or "at the best interest," makes him 
 liable to 5 per cent, interest : Forbes v. Ross, 2 B. "C. C. 
 430 ; Piety v. Stace, 4 Ves. 620. 
 
 A receiver dealing with moneys is charged as for a 
 breach of trust : Lonsdale v. Church, Rolls, 17 Dec. 1789, 
 cited Newton v. Bennet, 1 B. C. C. 362. 
 
 A bankruptcy trustee keeping money in hand, and not 
 paying a dividend, is charged in like manner : Treves v. 
 Townshend, 1 B. C. C. 384 ; Exjx Ogle, 8 Ch. 716 ; and 
 see Hicks v. HieJcs, 3 Atk, 274 ; Foster v. Foster, 2 B. C. 
 C. 616, 
 
 If a trustee makes a profit by an improper dealing with 
 the trust-fund, that profit he must give up to the cestui 
 que trust. If that improper dealing consists in embarking 
 or investing the trust-money in business, he must account 
 for the profits made by him by such employment, or at 
 the option of the cestui que trust, or if it does not or 
 cannot be made to appear what profits are attributable to 
 such employment, he must account for trade interest, i.e., 
 interest at 5 per cent, : Vyse v, Foster, 8 Ch. 329, L. R. 7 H. 
 L. 337 ; Docker v. Somes, 2 M. & K. 65-5 ; Montgomerie 
 V. Wauchofe, 4 Dow. 131 ; Heathcote v. Hulme, 1 J. & 
 W. 128 ; Palmer v. Mitchell, 2 M. & K. 672 n. ; Flockton 
 V. Punning, 8 Ch. 323 n. 
 
 Though an inquiry is indispensable to give effect to this 
 option, and such inquiry must be of a very special nature, 
 the difficulties attending it will not prevent the Court 
 from endeavouring to prosecute it : Docker v. Sovies, 
 2 M. & K. 655. 
 
 The cestui que trust cannot claim both a share of profits 
 and interest : Vyse v. Foster, 8 Ch. 334. 
 
 But in a proper case interest may be given with respect 
 to part of the time and profits with respect to other part : 
 Heathcote v. Hulme, 1 J, & W. 122 ; Burden v. Burden, 
 cited in judgment 1 J. & W. 136. 
 
 Persons who join trustees in embarking trust-moneys in 
 trade are liable with them : Cook v. Collingridge, Jac. 
 620 ; FIooUqti V, Banning, 8 Cb, 323 n, ; Vys$ v, Foster, 
 
COMPOUND INTEREST. 287 
 
 8 Ch. 329 ; and see Bowes v. City of Toronto, 11 Moo. P. t^^^^" 
 0. 463. 
 
 Compound Interest or Rests. 
 
 If there is a clear trust for accumnlation of an infant's Compoimil 
 legacy or for the benefit of creditors, and non-investment, ,,jjgj.g 
 the trustee may be chargeable with the rate of interest direction to 
 
 1 111 1 • 1 accumu- 
 
 appropnate to the case under the above rules, with rests : late. 
 see Raphael v. Boehm, 11 Ves. Ill, 13 Yes. 407, 590 ; 
 Court V. Roharts, 6 C. & F. 65 ; Knott v. Cottee, 16 Bea. 
 80 ; Townend v. Townend, 1 Gifif. 201. 
 
 In the case of trading with trust money it may be that. Whether 
 independently of anything in the particular nature of t^adin^'* 
 terms of the trust, a trustee, who suffers money which he 
 ought to call in, to be used in a business in which he has 
 an interest may be chargeable with compound interest : 
 Vyse V. Foster, L. R. 7 H. L. 347 ; Burdick v. Garrick, 
 5 Ch. 233. 
 
 Thus, where a testator gave liberty to trade, and it was 
 agreed that part of the profits should be capitalised, the 
 trustee was held liable for interest at 5 per cent., with 
 interest upon the capitalised profits : Stroud v. Owyer, 28 
 Bea. 130. 
 
 But, as a general rule, rests are not to be added to the 
 interest chargeable in these case : Vyse v. Foster, L. R. 
 7 H. L. 318, 347, dissenting from Jones v. Foxall, 15 Bea. 
 388, on that point ; Burdick v. Garnck, 5 Ch. 233 ; but 
 see Walker v. Woodward, 1 Russ. 107 ; Williams \- 
 Powell, 15 Bea. 468. 
 
 With regard to the liability of a trustee or executor em- Trustee 
 ploying funds of his deceased partner in the partnership J^h de- 
 business, see Crawshay v. Collins, 1 J. & W. 267, 279 ; "e^^* , 
 Cook V. Gollingridge, Jac. 607 ; Stocken v. Dawson, 9 Bea. money. 
 239 ; Wedderburn v. Wedderburn, 22 Bea. 84 ; Willett 
 V. Blanford, 1 Hare, 253 ; Travis v. Milne, 9 Hare, 141 ; 
 Vyse Y, Foster, L, R, 7 H, h. 318, 
 
CHAPTEE XXXVIII. 
 
 NOTICE TO TRUSTEES ON ASSIGNMENTS OF EQUITABLE 
 INTERESTS. 
 
 assignor 
 and assij 
 
 Purchaser A PURCHASER of a cliose in action, future or reversion- 
 jeot to ary interest, takes it subject to all the equities affecting 
 equities. it , ggg Lewin, 575 ; the note to Ryall v. Bowles, 2 W. & 
 T. L. C 770, as to what will constitute an equitable 
 assignment ; and s. 25, sub-section 6, of the Judicature 
 Act, 1873 (36 & 37 Vict. c. 66), which refers to absolute 
 assignments of debts or legal choses in action. 
 As between Notice is not required to be given to the debtor or 
 trustees of the assignor in order to make the title of the 
 assignee good as against him : Donaldson v. Donaldson, 
 Kay, 711 ; Re Way, 2 D. J. & Sm. 365 ; Ee Lowe, 30 
 Bea. 95, 97 ; see ante, p. 40, as to the effect of absence 
 of notice in the case of voluntary assignments. 
 
 But if no notice is given to the trustees, they would be 
 justified in transferring the property assigned to the 
 original cestui que trust, for whom they held it ; and if 
 they did so, there would be no remedy against them : 
 Donaldson v. Donaldson, Kay, 719 ; Stocks v. Dobson, 
 4 D. M. & G. 11 ; and it is possible that the donee might 
 not be able to recover the property ; but all that the 
 donee has to do is, at any time he thinks fit, to give notice 
 to the trustees before the property is transferred ; and 
 when he has given such notice his title is complete ; and 
 unless the donor or his executors actually obtain posses- 
 sion of the fund, the donee does not require the aid of the 
 Court against them : Donaldson v. Donaldson, supra, at 
 p. 719. 
 
 Where no 
 notice. 
 
NOTICE TO TRUSTEES. 389 
 
 The fact tliat the trustees are themselves the executors Where 
 
 ~ . 1 . , T „ -ri ■ 7 trustees are 
 
 01 the assignor makes no ditierence : lota. executors. 
 
 But as against subsequent rights created by the Notice as 
 assignor, either by assignment or by way of incumbrance, subsequent 
 the notice to the trustees is all-important : Dearie v. rights. 
 Hall, 3 Russ. 1 ; Loveridge v. Cooper, Ibid. 30, 48 ; 
 Foster v. Cockerell, 3 CI. & F. 456 ; Lloyd v. Banks, 3 
 Ch. 488. 
 
 The ground of this rule is, that if a contrary doctrine Ground cf 
 were allowed to prevail, it would enable the cestui que '^ ^" '^' 
 trust to commit a fraud by enabling him to assign his 
 interest first to one and then to a second incumbrancer, 
 and perhaps, indeed, many more ; and these later in- 
 cumbrancers would have no opportunity of ascertaining, 
 by any communication with the trustees, whether or not 
 there had been a prior assignment of the interest, on the 
 security of which they were relying for provision for 
 their claims : per Lord Lyndhurst, in Foster v. Cockerell, 
 3 CI. & F. 475 ; and see Martin v. Sedgwick, 9 Bea. 333. 
 
 With regard to the absence of notice having the effect Order and 
 of leaving the property assigned in the order and dispo- ^^^°^^ '^ 
 sition of a bankrupt assignee, see Exp. Boulton, 1 D. 
 & J. 163 ; Re Ratvhone, 3 K. & J. 476 ; Pierce v. Brady, 
 23 Bea. 64 ; Exp. Rogers, 8 D. M. & G. 276 ; Re 
 Tichener, 35 Bea. 317, 319. There is a direct conflict 
 between the cases, on this subject, of Exp. Caldwell, 13 
 Eq. 188, and the cases of Stuart v. Cockerell, 8 Eq. 607, 
 and Re Russell, 15 Eq. 26. 
 
 The notice operates not only to prevent the property, Effect of 
 which is the subject of the notice, being disposed of, 
 without the knowledge of the person by whom, or on 
 whose behalf the notice is given, but also to prevent 
 injury to other persons from subsequent dealings with the 
 property, affected by the notice in ignorance of the prior 
 claim upon it : per Turner, L. J., in Exp. Boulton, 1 D. & 
 J. 179. 
 
 Such persons have no means of ascertaining whether 
 any prior assignments, or charges, have been created but 
 
290 
 
 NOTICE TO TRUSTEES. 
 
 Construc- 
 tive notice. 
 
 Times of 
 notices. 
 
 Notice to 
 person 
 tound to, 
 but not 
 tnistee to, 
 pay. 
 
 by applying for information to the trustees, who must 
 for their own security, give correct information when 
 inquiry is made of them, whether they have had notice of 
 any prior assignments affecting their trust property : fer 
 V.-C. Kindersley, in Brcnmie v. Savage, 4 Drew. 639. 
 
 It seems that notice to the trustee's solicitor is notice 
 to them : Richards v. Gledstanes, 3 Giff. 298 ; Exp. 
 Rogers, 8 D. M. & G. 271 ; and see Espin v. Pemberton, 
 3 D. & J. 547. 
 
 And knowledge acquired in the course of trust business 
 may perhaps bind the trustees : Exp. Stevjart, 11 Jur. 
 N. S. 25 ; Edwards v. Mao-tin, 1 Eq. 121 ; Re Brown, 5 
 Eq. 88 ; Lloyd v. Banks, 3 Ch. 488 ; Exp. Agra Bank, 
 3 Ch. 555. 
 
 As between two equitable assignees, the time when 
 notice is given is of no importance, if both notices are 
 given previous to the period when the relation of trustee 
 and cestui que trust is created, where that relation is not 
 constituted until the money is actually received by, or is 
 due from the trustee. When the relation of trustee and 
 cestui que trust has been created, the priorities take effect 
 according to the notices : per Lord Romilly, in Webster v. 
 Webster, 31 Bea. 393 ; following Bidler v. Plnnkett, 1 J. 
 & H. 441 ; approved in Addison v. Cox, 8 Ch. 79. 
 
 But it seems that it is enough for priority — enough to 
 complete the equitable assignment of a chose in action — 
 if notice be given to the person by whom payment of the 
 assigned debt is to be made, whether that person is him- 
 self liable or is merely charged with the duty of making 
 the payment. Nor is it material whether the right to 
 receive the money and the consequent obligation to pay 
 it, is, at the time when the notice is given, absolute or 
 conditional, so long as the person who receives the notice 
 is himself bound by some contract or obligation, existing 
 at the time when the notice reaches him, to receive and 
 pay over, or to pay over, if he has previously received, the 
 fund out of which the debt is to be satisfied : per Lord 
 Selborne, C, in Addison v. Cox, 8 Ch. 79. 
 
NOTICE TO TRUSTEES. 291 
 
 The doctrine of the efficacy of notice to secure priority Real es- 
 does not apply to real estate : Jones v. Jones, 8 Sim. 
 633 ; Wilmot v. Pihe, 5 Hare, 14 ; Malcolm v. Charles- 
 luorth, 1 Keen, 63 ; Lee v. Howlett, 2 K. & J. 531 ; and 
 see Phipps v. Lovegrove, 16 Eq. 80. 
 
 Nor to an assignment of an equitable estate in a lease- Lease- 
 hold for years or other chattels real : Wiltshire v. Rabbits, ^°^^^' 
 14 Sim. 76. 
 
 But a charge on the produce of the sale of land is within Sale- 
 the doctrine : Foster v. Cockerell, 9 Bli. N. R. 332 ; 3 """^^y^- 
 CI. & F. 475 ; Daniel v. Freeman, 1. R. 8 Eq. 233 ; or, 
 semble, land devised upon trust for sale : Consolidated. 
 Investment Company Y.Riley, 1 Giff. 371. 
 
 And so also is an incumbrance by a portionist upon his Charge on 
 portion, charged upon land : Re Hughes, 2 H. & M. 89. 
 
 Notice gives no priority to a judgment creditor : Scott Judgment 
 V. Hastings, 4 K. & J. 633 ; and see Haly v. Barry, 3 
 Ch. 452 ; QUI v. Continental Gas Co., L. R. 7 Ex. 332. 
 
 A verbal notice is sufficient, but dangerous : Browne v. Verbal 
 Savage, 4 Dr. 640 ; Re Tichener, 35 Bea. 317, 318, and ""*'°^' 
 the cases cited ; ExjJ. Agra Bank, 3 Ch. 555. 
 
 But the burden of proof is on those who say they gave 
 the verbal notice, and gave it in a sufficiently precise 
 manner to constitute a formal notice which the trustee 
 was bound to remember : Re Tichener, supra. 
 
 Notice bond fide given to one of a number of trustees. Notice to 
 so long as that one is living, is notice given to them all : tee. 
 it is the duty of that trustee to communicate the informa- 
 tion so received to the other trustees, like everything 
 relating to the trust, and it is assumed that he has acted 
 accordingly : Meux v. Bell, 1 Ha. 73 ; Browne v. Savage, 
 4 Drew. 640 ; Willes v. Greenhill, 29 Bea. 376, 389, 4 
 D. F. & J. 147. 
 
 But where one of the trustees is a beneficiary and J^^^^/^ o°e 
 assigns his beneficial interest in the tr|ist fund to a beneficially 
 stranger, a notice so acquired by him as assignor, is not ™*'*1^'^' 
 notice to the trustees, it being the interest of such trustee 
 as assignee to conceal the assignment : Browne v. Savage, 
 
 V % 
 
292 
 
 NOTICE TO TEUSTEES. 
 
 New trus- 
 tees. 
 
 Trustees of 
 
 appoiut- 
 
 ment. 
 
 Distringas. 
 
 Charging 
 Order. 
 
 4 Drew. 635 ; and see Commissioners of Works v. Uarhy, 
 23 Bea. 508, 511. 
 
 But where such trustee assigned his beneficial interest 
 to one of his co-trustees, the notice which that co-trustee 
 acquired, as assignee, constituted notice to all the trustees, 
 it not being his interest as assignee to conceal the assign- 
 ment : Ihid. 
 
 It seems that new trustees are not bound to inquire of 
 the old trustees whether they have received notice of any 
 incumbrance : Phipps v. Lovegrove, 16 Eq. 80. 
 
 Notice should be given, not only to trustees under a 
 deed exercising a power of appointment, but also to the 
 trustees of the settlement creating the power ; Bridge v. 
 Beadon, 3 Eq. 664. 
 
 Besides giving notice of equitable assignments it is also 
 advisable, if the assignee desires to be perfectly secured, 
 to obtain a distringas on the funds, or to have his deed 
 endorsed on the original deed : Phipps v. Lovegrove, 16 
 Eq. 80 ; and this is especially important in cases where, 
 owing to death or intestacy, there is no trustee in existence 
 to whom notice can be given : Etty v. Bridges, 2 Y. & C. 
 C. C. 486. 
 
 If the fund is in Court a charging order should be 
 obtained, as to which see Order XLYI., r. 1 ; Morgan & 
 Chute, 58 et seq. 
 
CHAPTEE XXXIX. 
 
 FOLLOWING THE TRUST ESTATE INTO THE HANDS OF 
 PURCHASERS AND OTHERS. 
 
 A PURCHASER for value bona, fide paid, and without 
 notice of the trust, will not be liable to the claims of the 
 cestuis que trust, who cannot, therefore, follow the trust 
 into his hands : Basset v. Nosworihy, Finch, 102 ; Jerrard 
 V. Saunders, 2 Ves. Jun. 456. 
 
 The plea of purchase for value without notice of a 
 trust is an absolute, unqualified, unanswerable defence, 
 and an unanswerable plea to the jurisdiction of the 
 Court : per James, L. J., in Pitcher v. Rawlins, 7 Ch. 
 259 ; see similar expressions in Jerrard v. Saunders, 2 
 Ves. Jun. 456. 
 
 But if the purchaser be affected with notice of the 
 trust he is converted into a trustee, because the wrongful 
 receipt and conversion of trust property place the receiver 
 in the same situation as the trustee from whom he re- 
 ceived it ; and by the principles of the Court he becomes 
 subject in a Court of Equity to the same rights and reme- 
 dies as may be enforced by the parties beneficially entitled 
 against the fraudulent trustee himself This relief is 
 founded on fraud and not on constructive trust. When it 
 is said that the person is converted into a trustee, the ex- 
 pression is used for the purpose of describing the nature 
 and extent of the remedy against him, and it denotes that 
 the parties entitled beneficially have the same rights and 
 remedies against him as they would be entitled to against 
 an express trustee who had fraudulently committed a 
 breach of trust : Rolfe v. Gregory, 4 D. J. & Sm. 576. 
 
 Purchase 
 without 
 notice of 
 trust. 
 
 Nature of 
 plea of 
 purchase 
 for Talue. 
 
 Purchaser 
 with notice 
 a trustee. 
 
294 
 
 PUECHASEK FOR VALUE WITHOUT NOTICE. 
 
 Set-off. 
 
 Where 
 defence 
 rests on 
 deed dis- 
 closing 
 trust. 
 
 Defective 
 title. 
 
 Interroga- 
 tories as to 
 bond fides 
 and notice. 
 
 One -wit- 
 ness not 
 enough. 
 
 Notice of a trust operates by affecting the conscience of 
 the party, who, though a purchaser for value, is not a 
 bond fide purchaser, for he takes the legal title knowing 
 the right in equity to belong to another: Dunbar v. 
 Tredennich, 2 B. & B. 304, 318 ; Saunders v. Behew, 2 
 Vera. 271 ; Mead v. Orrery, 3 Atk. 238 ; Le Neve v. Le 
 Neve, Amb.' 436, 3 Atk. 646 ; Taylor v. Stibbert, 2 Ves. 
 Jun. 437; Adair v. Shaw, 1 Sch. & L. 262. 
 
 So a person indebted to the cestui que trust of a trustee, 
 who is himself indebted to the first-named person, cannot, 
 having notice of the trust, be allowed to set off one debt 
 against the other : Pannell v. Hurley, 2 Coll. 241. 
 
 The defence is good, though in order to make out his 
 title to the legal estate the purchaser must rely on an 
 instrument which discloses the title of the plaintiff, the 
 defendant not having had notice of such instrument at 
 the time of his purchase : Pitcher v. Rawlins, 7 Ch. 259, 
 in which case James and Mellish, L. JJ., disapproved, 
 and Hatherley, C, explained Carter v. Carter, 3 K. & J. 
 617, contra; Monclcton v. Braddell, I. R. 7 Eq. 30. 
 
 From a purchaser for value without notice the Court 
 takes away nothing which that purchaser has honestly 
 acquired ; but if a purchaser for value without notice, 
 however honest, on the completion of his purchase, ac- 
 quires a defective title, the Court will not allow that title 
 to be strengthened either by his own fraud or the fraud 
 of any other person ; Heath v. Crealoch, 10 Ch. 22, 33. 
 
 The defendant putting forward the plea of purchaser for 
 value without notice may be interrogated, so as to show 
 mala fides, and also as to the fact of notice : Pilclier v, 
 Rawlins, 7 Ch. 259. 
 
 One witness is not enough against the denial of notice 
 of the trust by the defendant : Howorth v. Deem, 1 Ed. 
 355; Mertins v. JoUiffe, Amb. 311 ; Plumb v. Fluitt, 2 
 Anst. 438 ; Pember v. Mathers, 1 B. C. 0. 52 ; Cinnstouni 
 V. Johnston, 3 Ves. 170 ; Evans v. Biclcnell, 6 Ves. 185 ; 
 East India Co. v. Donald, 9 Ves. 275 ; Pilling v. 
 Armitage, 12 Ves. 80. 
 
PUECHASER FOR VALUE WITHOUT NOTICE. 295 
 
 A plea of purchase or mortgage for value without a Mu?t deny 
 denial of the notice is insufficient, for there is no constat "^ 
 traversing the facts from which notice has been inferred : 
 Jerrard v. So.urixlers, 2 Ves. Jun. 187, 455, 4 B. C. C. 
 322 ; and see PhiUips v. Phillijfjs, 4 D. F. & J. 208 ; 
 Vane v. Van^, 8 Ch. 383, 401. 
 
 The plea of purchase for value mthout notice is good Eqiial 
 against the legal estate got in by one who acquires 
 another equitable title, as well as against the equitable 
 title where the legal estate is conveyed, to the purchaser 
 himself : the equities then coming under the rule that 
 qui prior est te'^mpore, potior est jure : Joyce v. De 
 Moleyns, 2 J. & L. 374 ; Golyer v. Fin-ch, 5 H. L. C. 905 ; 
 PhiUips V. PhiUips, 4 D. F. & J. 216. 
 
 The Court does not order the delivery up of deeds in Deeds not 
 the possession of a person who sets up the plea : WaUivyn j^ ^^ 
 V. Lee, 9 Ves. 24 ; Humt v. Elmes, 2 D. F. & J. 578 : "^ered np. 
 Thorpe v. Holdsvjorth, 7 Eq. 139 ; Heath v. Crealock, 10 
 Ch. 22 ; WaUy v. Gray, 20 Eq. 238. 
 
 Where the deeds are in the possession of an equitable 
 mortgagee with notice of the trust, they wiU probably be 
 ordered to be delivered up : Xevjton v. Kewton, 6 Eq. 
 135, 4 Ch. 143. 
 
 If trustees make a voluntary conveyance of the tru.st Where no 
 property, the grantee, though he have no notice of the yolimtary 
 trust, stands in the place of the grantors, and is liable 8?^"' 
 
 . . o ' given. 
 
 to the trust in the same manner as the tnistees were liable 
 to it, and the property may be followed by the cestuis que 
 trust: ManseU v. ManseU, 2 P. W. 681; Feame, 326; 
 GaHh V. Cotton, 1 Dick. 199 ; Moody v. Walters, 16 Ves. 
 302 ; Biscoe v. Perkins, 1 V. & B. 491 ; Muraford v. 8toh- 
 wasser, 18 Eq. 556. 
 
 Where trustees have joined in destroying contingent Destruction 
 remainders by a conveyance (before 8 & 9 Vict. c. 106), they gent re- 
 are guilty of a breach of trust, and whether the settlement ™*™'^"'s- 
 have been by will or any other voluntary settlement, the 
 remedy will be that they should purchase other lands to be 
 settled to the same uses : ManseU y.ManseU,2 P. W. 680. 
 
296 
 
 PURCHASER FOR VALUE "WITHOUT NOTICE. 
 
 RigMB ob- 
 tained 
 after pur- 
 chase with 
 notice. 
 
 Sale by 
 
 purchaser 
 
 ■without 
 
 notice to 
 
 another 
 
 with 
 
 notice. 
 
 By one 
 with to 
 one with- 
 out. 
 
 Purchase 
 from pur- 
 chaser who 
 has not 
 paid. 
 
 Fraud pre- 
 Tents ac- 
 quiescence. 
 
 Legal es- 
 tate got in 
 after 
 notice no 
 protection. 
 
 A purchaser, with notice of a trust, who acquires a 
 valuable right ia respect of the property purchased, 
 must surrender such right for the benefit of the cestuis 
 que trust: Aberdeen Toiun Council v. Aberdeen Univer- 
 sity, L. E. 2 App. Ca. .544. 
 
 If a purchaser without notice sell to a person who has 
 notice, the sale will be good : Harrison v. Forth, Pr. Ch. 
 51 ; Mertins v. JoUiffe, Amb. 313 ; Andrew v. Wrigley, 4 
 B. C. C. 136 ; Salsbury v. Bagott, 2 Swans. 608. 
 
 And if the sale be by a purchaser with notice to a pur- 
 chaser without notice, the title will be good, unless the 
 vendor be the trustee himself : Mertins v. JoUiffe, Amb. 
 313 ; Ferrars v. Cherry, 2 Vern. 384 ; Bovey v. Smith, 1 
 Vern. 60 ; Kennedy v. Daly, 1 Sch. & L. 379. 
 
 But a purchaser for value who, though without any 
 personal notice of a fraud, contracts through an agent who 
 knows of the fraud, cannot protect himself under s. 26 of 
 the Statute of Limitations (3 & 4 Will. 4, c. 27) : Vane 
 V. Vane, 8 Ch. 383. 
 
 The principle that notice binds a purchaser for value is 
 extended to the case of the vendor's lien for unpaid pur- 
 chase money, enabling the vendor to enforce such lien in 
 the hands of a sub-purchaser of the estate, with notice that 
 the purchase-money remained unpaid : Mackreth v. Sym- 
 mons, 15 Ves. 329 ; and see Shaw v. Foster, L. R 5 H. L. 
 321 ; Crabtree v. Poole, 12 Eq. 13. As to the abandonment 
 of the lien by the vendor taking security or otherwise, see 
 Dart, V. & P. 733 et seq. 5th ed. 
 
 As the remedy is given on the ground of fraud, it is 
 governed by the principle that the right of the party 
 defrauded is not affected by lapse of time, or, generally 
 speaking, by anything done or omitted to be done, so long 
 as he remains without any fault of his own in ignorance of 
 ihe fraud that has been committed : Rolfe v. Gregory, 4 
 D. J. & Sm. 576. 
 
 The acquisition of the legal estate after notice of the 
 trust affords no protection to the purchaser, for by takiag 
 a conveyance with such notice he himself becomes a 
 
PURCHASER FOR VALUE WITHOUT NOTICE. 297 
 
 trustee, and must not " to get a plank to save himself " be 
 guilty of a breach of trust : Saunders v. Behev:, 2 Vern. 
 271 ; Allen v. Knight, 5 Hare, 272 ; Mumford v. Stoh- 
 vjasser, 18 Eq. 556 ; and see Sturgis y. Morse, 3 D. 
 & J. 1. 
 
 Thus, equitable mortgagees, knowing that the mortgagor Trustee 
 was a mere trustee, obtained no better equity by getting a equitable 
 legal mortgage : Baillie v. McKewan, 35 Bea. 177. mortgage. 
 
 The priorities of successive incumbrancers are not I-egales- 
 altered by one of them getting in the legal estate trustee for 
 from a trustee for them all: Sharpies v. Adams, 32 mortgagee. 
 Bea. 213. 
 
 The purchaser of an equitable charffe from a person who Getting in 
 
 11.. . Ill 1 legal term. 
 
 took out administration to a man supposed to be, but who 
 was not, dead, was not allowed to defend himself against 
 the true owner by means of an assignment of the term 
 created upon the express trust to raise the charge: Monck- 
 ton V. Braddell, I. B,. 7 Eq. 30. 
 
 On the other hand, if a legal term, without any express 
 trust attaching to it, is got in, it may be available against 
 other than equitable claims against it : Jones v. Powles, 
 3 ]\I. & K. 581 ; see on this point Maundrell v. Maundrell, 
 10 Yes. 260 ; CarUr v. Carter, 3 K. & J. 639 ; Pilclier v. 
 Rawlins, 7 Ch. 267. 
 
 It is a mistake to suppose that the trustees or any of Against 
 the persons concerned in a breach of trust are primarily tate may 
 liable ; they are all equally liable ; and the plaintiffs have J"® ^"j" 
 a right to proceed against such of them as they think fit : 
 Wilson V. Moore, 1 M. & K. 143, 146. 
 
 The knowledge of the solicitor is constructive notice to Construc- 
 his client the purchaser, who is therefore bound by trusts 
 known to the solicitor, and liable to the right of the 
 cestui que trust to follow the property into his hands : 
 Le Xeve v. Le Xeve, Amb. 436, 3 Atk. 646, 1 Ves. Sen. 
 64 ; Brotherton v. Hatt, 2 Vern. 574 ; Boursot v. Savage, 
 2 Eq. 134. 
 
 This is the usual result in cases where the same solicitor 
 is einployed by both vendor and purchaser : Ibid.; and 
 
 tive notice. 
 
298 
 
 PURCHASER FOR VALUE WITHOUT NOTICE. 
 
 Notice by 
 nature of 
 transac- 
 tion. 
 
 Notice 
 from re- 
 citals, &c. 
 
 see Baillie v. McKewan, 35 Bea. 183 ; Maxfield v. Burton, 
 17 Eq, 15. 
 
 It has been observed that there is no difference between 
 actual personal notice and constructive notice, except as to 
 guilt : Sheldon v. Gox, 2 Ed. 228. 
 
 A purchaser who employs as his solicitor the solicitor- 
 trustee who is one of the vendors, and who by forgery 
 conveys to him in the names of all the trustees, has con- 
 structive notice of the trust, and cannot set up the defence 
 of purchase for value without notice : B our sot v. Savage> 
 2 Eq. 134. 
 
 If the nature of the transaction affords intrinsic evidence 
 that the executor on a mortgage or sale by him is not 
 acting in the execution of his duty, but is committing a 
 breach of trust, as where the consideration for the mort- 
 gage or sale is a personal debt due from the executor 
 to the mortgagee or purchaser, there the mortgagee or 
 purchaser, being a party to the breach of trust, does not 
 hold the property discharged from the trusts, but equally 
 subject to the payment of debts and legacies as it would 
 have been in the hands of the executor : Watkins v. Cheek, 
 2 S. & S. 205 ; but see Corser v. Cartwright, L. R. 7 H. L. 
 731. 
 
 Persons who, as commercial correspondents of executors, 
 and knowing that stock remitted to them, in payment of 
 a debt due by the executors, was subject to the trusts of a 
 will, are thus personally liable to those entitled under the 
 will : Wilson v. Moore, 1 M. & K. 143, 146. See further 
 as to the right to follow assets disposed of by executors, 
 Mead v. Orrery, 3 Atk. 238 ; Hill v. Simpson, 7 Ves. 152, 
 and Williams, Exors., p. 934. 
 
 In all cases where the purchaser cannot make out a 
 title except by a deed which leads him to another fact 
 involving notice of a trust, he is not allowed to set up the 
 defence of purchase for value without notice of that fact, 
 but is presumed to be cognisant of it ; for it is crassa 
 negligentia that he did not discover it : Plumh v. Fluiit, 
 2 Anst. 438 ; Jackson v. Eoive, 2 S. & S. 472, 4 Russ. 514. 
 
PURCHASE FOR VALUE — ^WRONGFUL CONVERSION. 299 
 
 Notice acquired in one transaction of a trust affecting Notice 
 
 '■ , . must be m 
 
 other property, does not bind a purchaser in a subsequent same trans- 
 transaction when he purchases such other property : Ha- ^°*'™- 
 inilton V. Royse, 2 Sch. & L. 327. 
 
 Though the character of the notice when given to the Notice of 
 purchaser, or acquired by him, be not precisely justified c?e"ariy°'' 
 by the nature of the equitable claim, or may not disclose estob- 
 
 lisliod 
 
 a perfectly clear equity, it may still be enough to put the 
 purchaser on his inquiry : Taylor v. Baker, 5 Price, 306 ; 
 Gordwell v. Mackrill, Amb. 516 ; Hardy v. Reeves, 4 Ves. 
 466, 5 Ves. 426 ; Parker v. Brooke, 9 Ves. 588. See further 
 as to what amounts to notice, the note to Le Neve v. Le 
 Neve, 2 W. & T. L. G. 49 et seq. 
 
 Though the purchaser did not know of the trust when Notice 
 he paid his money, he is bound if he have notice of it conveyance 
 before he executes the deed : Wigg v. Wigg, 1 Atk. 381 ; enough. 
 Tourville v. Naish, 3 P. W. 306 ; but see Bodds v. Hdlls, 
 2 H. & M. 424. 
 
 And the plea of purchase for value without notice must Foi-m of 
 be that the purchaser had no notice either at the time of 
 payment or at or before the execution of the conveyance : 
 Story V. Windsor, 2 Atk. 630 ; Maundrell v. Maundrell, 
 10 Ves. 271 ; Taylor v. Baker, 5 Price, 306 ; Tildesley v- 
 Lodge, 3 Sm. & G. 543 ; but see Fitzgerald v. Burk, 2 Atk. 
 397. 
 
 It is not enough for the purchaser to say that the price Security 
 is secured to be paid : Hardinghara v. Nicholls, 3 Atk. ^ot enough. 
 304. 
 
 Or that part of it has been paid : Rayne v. Baker, 1 Giff- Part pj,y- 
 241. 
 
 Following Money arising fo-om the wrongful Conversion 
 of the Trust Estate. 
 
 The property of a principal entrusted by him to his General 
 factor for any special purpose belongs to the principal, P"°'^'P'^- 
 notwithstanding any change which that property may 
 have undergone in point of form, so long as such property 
 
300 
 
 WRONGFUL CONVERSION — TRACING TRUST FUNDS. 
 
 All pro- 
 perty- 
 traceable 
 may be 
 followed. 
 
 Sale of 
 
 trust 
 
 stock. 
 
 Difficulty 
 of tracing 
 does not 
 alter rule. 
 
 is capable of being identified and distinguished from all 
 other property. All property thus circumstanced is equally 
 recoverable from the trustee in bankruptcy of the factor, 
 as it was from the factor himself before his bankruptcy : 
 Taylor v. Plumer, 3 M. & S. 562, 573, 574 ; Frith v. 
 Cartland, 2 H. & M. 417. 
 
 If the property in its original state and form was 
 covered with a trust in favour of the principal, no change 
 of that state and form can divest it of such trust, or give 
 the factor, or those who represent him in right, any other 
 or more valid claim in respect to it, than they had before 
 such change : Ibid, at p. 574. 
 
 As between cestui que trust and trustee, and all parties 
 claiming under the trustee, otherwise than by purchase 
 for value without notice, all property belonging to a trust, 
 however it may be changed or altered in its nature or 
 character, and all the fruit of such property, whether in 
 its original or its altered state, continues to be subject to, 
 or affected by, the trust : Pennell v. Deffell, 4 D. M. & 
 G. 372. 
 
 Where a trustee employs a broker to sell trust stock, 
 giving him full notice thai it is trust stock, and to invest 
 the proceeds on behalf of the trust estate, the money 
 arising from the sale is trust money, and by no bargain 
 between the trustee and the broker, nor by any rule of 
 the Stock Exchange, can it be made anything but trust 
 money, liable to be followed as such, if it can be traced, 
 the difficulty of doing which does not affect the principle : 
 Ex'p. Cooke, 4 Ch. D. 123, following Taylor v. Plur^ier, 3 
 M. & S. 562. 
 
 It seems, moreover, that even if there had been no 
 notice to the broker that the money was trust money, the 
 rule in Taylor v. Plumer would have applied to this case : 
 Ihid. 
 
 The difficulty which arises is a difficulty of fact and not 
 of law, and the dictum that money has no ear-mark must 
 be understood in the same way, viz., as predicated only 
 of an undivided and undistinguishable mass of current 
 
WRONGFUL CONVERSION — TRACING TRUST FUNDS. 301 
 
 money. But money in a bag or otherwise kept apart from 
 other money, guineas or other coin marked (if the fact 
 were so) for the purpose of being distinguished, are so far 
 ear-marked as to fall within the rule on this subject, which 
 applies to every other description in the hands of the 
 factor [or trustee] or his general legal representative : 
 Taylor v. Plumer, 3 M. & S. 575. 
 
 The general use of cheques now makes it more difficult 
 to trace money, as the cheques go into a banking account, 
 so that the sum is mixed up with other moneys of the 
 customer. But the money, so far as it can be traced as 
 the property of the client, is covered by the reason of the 
 thing, and the authority of Taylor v. Plumer : per Bram- 
 well, L. J., in Ex2x Cooke, 4 Ch. D. 128. 
 
 The guiding principle is that a trustee cannot assert a Where 
 
 ■ 1 ^ T ■ xp 1 1 trust fund 
 
 title 01 his own to trust property, it he destro3's a lost. 
 trust fund by dissipating it altogether, there remains 
 nothing to be the subject of a trust. But so long as the 
 trust property can be traced and followed into other 
 property into which it has been converted, that remains 
 subject to the trust : Frith v. Oartland, 2 H. & M. 417, 
 420. 
 
 The sole question is whether the property can or cannot 
 be identified : Ibid., p. 421 ; see Liebman v. Harcourt, 2 
 Mer. 513 ; Harford v. Lloyd, 20 Bea. 310. 
 
 If a man mixes trust funds with his own the whole will Mixing 
 be treated as the trust property, except so far as he may moneys 
 be able to distinguish what is his own : Frith v. Cartland, "^^^ 
 2 H. & M. 420 ; Cook v. Addison, 7 Eq. 471. mmeyl 
 
 An injunction may be obtained to restrain the transfer injunction 
 of stock by the trustee [or person affected by the rule], !" ™^*"^^™ 
 upon evidence that it is trust money, at least until the 
 trustee have distinguished any part which is not trust 
 property : Chedworth v. Edwards, 8 Ves. 46 ; Lupton 
 V. White, 15 Ves. 432. 
 
 But no injunction can be obtained in a case where the Extinction 
 trust fund has been paid into a bank to the trustee's own °* f^^ , 
 account, and by the application of the rule in Clayton's in Clayton's 
 
ac2 
 
 WRONGFUL CONVERSION — TRACING TRUST FUNDS. 
 
 Jfoney 
 paid into 
 bank. 
 
 Liability of 
 banker. 
 
 Money in 
 bank at 
 death of 
 trustee. 
 
 Money in 
 bank how 
 appro- 
 priated. 
 
 Banker is 
 not trus- 
 tee. 
 
 Case (1 Mer. 572) infra, the fund has been extinguished : 
 Brown v. Adams, 4 Ch. 764. 
 
 A trustee who pays money into his own account at his 
 banker's is liable to his cestui que trust for the moneys 
 he has so paid in, for he has no right to mix the trust 
 moneys with his own, or to subject his cestui que trust 
 to the difficulty of separating them : Massey v. Banner, 
 IJ. & W. 241. 
 
 The liability of the banker depends upon whether or 
 not he has notice that the account is a trust account ; and 
 he may be fixed with such notice by the nature of the 
 heading of the account : Pannell v. Hurley, 2 Coll. 241 ; 
 Bridgman v. Gill, 24 Bea. 302. 
 
 So if a person, keeping an undoubted trust account, 
 draws upon it, and pays the proceeds into his private 
 account, the bankers may be liable for his breach of 
 trust : Bodenhavi v. Hoslcyns, 2 T). M. & G. 903 ; and see 
 Exp. Kingston, 6 Ch. 632. 
 
 And if a trustee pays into a bank trust money, and also 
 his own private mone}', to an account not marked or dis- 
 tinguished as a trust account, that does not prevent the 
 balance at his death being properly distributed between 
 the trust and his own estate : Pennell v. Deffell, 4 D. M. 
 & G. 372. 
 
 The result of tracing the money standing to the ac- 
 count into the trust, is however subject to the rule that 
 money drawn out of the account is to be applied or ap- 
 propriated to the earlier items on tlie opposite side of the 
 account, so that it might well happen that no part of the 
 balance would represent the trust fund originally paid in : 
 Clayton's Case, 1 Mer. 572 ; Brown v. Adams, 4 Cli. 
 764. 
 
 It must be borne in mind that there is no fiduciary 
 relation between the banker and his customer : Foley v. 
 Hill, 2 H. L. C. 28. And, regarding their true position as 
 that of debtor and creditor, " by every payment which he 
 makes, the banker discharges so much of the debt which 
 he first contracted. If that debt arose from trust moneys 
 
WRONGFUL CONVEUSION — TRACIKQ TRUST MONEYS. 303 
 
 paid in by the customer, so much of tbose trust moneys is 
 paid off, and unless otherwise invested on account of the 
 trust, falls into the customer's general estate, and is lost 
 to the trust, because it cannot be distinguished from the 
 general estate of which it formed part. If, on the other 
 hand, the earliest debt due from the banker arose from 
 the customer's own money paid in by him, that debt is 
 pro tanto discharged, and the trust moneys subsequently 
 paid in remain unaffected. The same principle runs 
 through the whole account : each sum drawn out goes to 
 discharge the earliest debt due from the banker, which is 
 remaining iinpaid ; and thus, when it is ascertained what 
 moneys have been paid in belonging to the trust, it be- 
 comes clear to what portion of the balance which remains, 
 the trust estate is entitled " : Pennell v. Beffell, 4 D. M. & 
 G. 372. 
 
 This rule is not applicable to fraudulent items in the Fraudulent 
 account : Lacey v. Hill, 4 Ch. D. .554. "'=™'- 
 
 The agent or solicitor of a trustee, who obtains posses- Agents and 
 sion of the trust funds, and whose acts are not in strict ^°}\<='*°'^^ 
 
 acting 
 
 conformity with his duty as such agent or solicitor, ceases -within 
 to be a mere agent, and, whether he made a profit or not, *" "" ^' 
 he must account as a trustee : Myler v. Fitzpatrick, 
 6 Madd. 360 ; FyUr v. Fyler, 3 Bea. 550, 568 ; Marshall 
 V. Sladden, 7 Hare, 428, 441 ; Morgan v. Stephens, 
 3 Giff. 226 ; Hardy v. Galey, 33 Bea. 365 ; but see 
 Barnes v. Addy, 9 Ch. 251 quoted, swpra, p. 72. 
 
 But the solicitor of the trustees is not an accountinsr 
 party if he has limited his acts strictly to his character of 
 solicitor: Maw v. Pearson, 28 Bea. 196 ; or unless he has 
 been guilty of fraud : Marshall v. Sladden, 7 Ha. 442. 
 
 Money entrusted to a solicitor to invest in a particular Money en- 
 mortgage may be followed into another security in the *™.^*^'^ *" 
 solicitor's own name on the same property : Middleton v. for mort- 
 Pollock, 4 Ch. D. 49 ; and yee Hopper v. Conyers, 2 Eq. ^*^^' 
 549. 
 
 A wife may follow trust property, settled before her Right of 
 marriage, into the hands of her husband ; and if he have ""'^^ 
 
 against 
 husband. 
 
304 
 
 FOLLOWING TKUST MONEY INTO LAND, 
 
 Person 
 having 
 shares of 
 
 his CBTl 
 
 and on 
 trust. 
 
 Following 
 fund in 
 Court. 
 
 Following 
 
 trustee in 
 
 hank- 
 
 ruptcy. 
 
 got rid of it, she has a lien on other funds formerly her 
 own, but of which he has obtained possession : Hastie v. 
 Hastie, 2 Ch. D. 304. 
 
 If a person have shares in his own right and also as a 
 trustee, and sells some of them, those which he sells must 
 be taken to be those to which he was entitled in his own 
 name, leaving the rest to answer the trust : PinJcett v. 
 Wright, 2 Hare, 120, 12 01. & F. 764. 
 
 Money paid by order into Court by trustees of a settle- 
 ment, but being in fact money subject to the trusts of 
 another settlement, cannot be followed into the hands of 
 the Court by the beneficiaries under the latter settlement: 
 Thorndike v. Hunt, 3 D. & J. 564. 
 
 The rules as to following trust funds in the hands of a 
 defaulting trustee apply against his trustee in bankruptcy 
 as fully as against the trustee himself ; and the circum- 
 stance that the trust fund was acquired on the eve of 
 bankruptcy, and when the bankrupt was about to abscond 
 with it as well as with money of his own, gives no equity 
 to the creditors as against the cestuis que trust: Frith v. 
 Cartland, 2 H. & M. 417. 
 
 Following 
 land pur- 
 chased by 
 trustees. 
 
 By tenant 
 for life of 
 trust 
 funds. 
 
 Lien. 
 
 Following Trust Money into Land. 
 
 If the trust money have been invested by the trustee in 
 the purchase of land it may be followed by the cestuis que 
 trust into the land ; and whatever doubts may have been 
 formerly entertained on the subject, a claim of this sort 
 may be supported by parol evidence : Lane v. Dighton, 
 Amb. 409 ; Lench v. Lench, 10 Ves. 511 ; Hopper v. 
 Conyers, 2 Eq. 549. 
 
 The land may be made subject to the requirements of 
 the trusts in the hands of the tenant for life, who pays for 
 it in part with trust moneys directed to be re-invested in 
 land, and procures a conveyance of it to himself instead of, 
 as in a case where the amount so paid out of trust funds 
 was clearly ascertainable, to the trustees : Price v. Blake- 
 more, 6 Bea. 607. 
 
 In such a case the Court declares a lien on the purchased 
 
FOLLOWING TRUST MONEY INTO LAND. 305 
 
 lands to the extent of the trust moneys traced into it : 
 Ibid.; Hopper v. Conyers, 2 Eq. 549. 
 
 Where a man is under an obligation to lay out £30,000 
 in lands, and he lays out part as he can find purchases, 
 ■which are attended with all material circumstances, it is 
 more natural to suppose these purchases made with regard 
 to the obligation than without it ; more natural to ascribe 
 it to the obligation he lies under than to a voluntary act 
 independent of the obligation : Lechmere v. Lechmere, Ca. t, 
 Talb. For. 80 ; Sugd. V. & P., App. I., 1117, 11th ed. Thus, 
 if there are no facts proved which show that the purchases 
 were made for any other purpose, the trusts will attach to 
 the land : Lewis v. Madocks, 8 Ves. 150 ; Mathias v. 
 Mathias, 3 Sm. & G. 552. 
 
 A tenant for life taking a conveyance in fee to himself 
 of lands so purchased, without any subsequent declaration 
 of trust or settlement, does not interfere with the rights of 
 remaindermen : Beacon v. Smith, 3 Atk. 323, 326 ; Mathias 
 V. Mathias, supra. 
 
 Even if the investment made by the trustee was un- Unautho- 
 authorised yet the cestuis que trust are entitled to the chase.'^"'^" 
 benefit of it : Phayre v. Peree, 3 Dow. 116. 
 
 The very strongest evidence is required to found a pre- Poverty, 
 sumption against a personal purchase by the trustee from 
 the fact of his poverty : Lench v. Lench, 10 Ves. 511 ; 
 WilJdns V. Stevens. 1 Y. & C. C. C. 431. 
 
 But unless there is a ground of presumption, it does not When pur- 
 follow that a purchase even by a trustee for purchase is *^^/"^°' 
 made in execution of his trust : Perry v. Phelips, 4 Ves. 116. under 
 
 Such a presumption may arise where the money laid 
 out is very nearly identical with the fund subject to the 
 trust : Ibid.; and see Sowden v. Sowden, 1 B. C. C. 581 ; 
 Tubbs V. Broadwood, 2 R. & My. 487. 
 
 But " the mere fact that [the trustee] had trust money 
 in his hands when he made the purchases is not sufficient 
 to attach the trusts on the lands bought with his own 
 money:" per M. K of Ireland in Sealy v. Stawell, I. R. 2 
 Eq. 347. 
 
CHAPTER XL. 
 
 THE ENFORCEMENT OF TRUSTS AS AFFECTED BY STATUTES 
 OF LIMITATION, DELAY, AND ACQUIESCENCE. 
 
 Express " WHERE any land or rent shall be vested in a trustee 
 
 trusts not upon any express trust, the right of the cestui que trust, 
 
 until pur- or any person claiming through him, to recover such land 
 
 chase for qj. j-gj^^ shall be deemed to have first accrued, according to 
 
 3&4Wili. the meaning of this Act, at and not before the time at 
 
 4, u. 27, a. -^}jj^(,}j BMch land or rent shall have been conveyed to a 
 
 purchaser for a valuable consideration, and shall then be 
 
 deemed to have accrued only as against such purchaser, 
 
 and any person claiming through him : " 3 & 4 Will. 4, 
 
 c. 27, s. 25. Except so far as regards express trusts for 
 
 securing any sum of money or legacy (see infra, p. 312), 
 
 this section is unaffected by the Real Property Limitation 
 
 Act, 1874. 
 
 No claim By the Judicature Act, 1873, it is enacted that " no 
 
 trasT^* claim of a cestui que trust against his trustee for any 
 
 barred : property held on an express trust, or in respect of any 
 
 Act^°l873 hreach of such trust, shall be held to be barred by any 
 
 «• 25 (2). ' Statute of Limitations : " 36 & 37 Vict., c. 66, s. 25, 
 
 sub.-s. 2. 
 What are It is to be remembered that the 25th section of 3 & 4 
 Will. 4, c. 27 (cited above), " is confined to express trusts ; 
 that is, trusts expressly declared by a deed, will, or some 
 other written instrument ; it does not mean a trust that 
 is to be made out by circumstances— the trustee must be 
 appointed by some written instrument ; and the effect is, 
 that a person, who is under some instrument an express 
 trustee, or who derives title under such a trustee, is pre- 
 
 express 
 trusts. 
 
STATUTE OF LIMITATIONS — EXPRESS TRUSTS. 307 
 
 eluded, however long soever he may have been in enjoy- 
 ment of the property, from setting up the Statute : " per 
 Kindersley, V.-C, in Petre v. Petre, 1 Drew. 393 ; and 
 see Salter v. Cavanagh, 1 Dr. & "Walsh, 668 ; Tardley v. 
 Holland, 20 Eq. 428. 
 
 The section is confined to the case of a claim by S. 25 ap- 
 cestuis que trust against express trustees ; and it has no between^ 
 application where the contest is between the cestuis que trustee and 
 
 ,, 1,1-1 ,1- cestui que 
 
 trust and third persons, not bemg express trustees : trust. 
 Petre v. Petre, supra. 
 
 Nor does it apply where the trustee is only a construe- Not to con- 
 tive trustee : that is, " if a person has been in possession, tJugts^^^ 
 not being a trustee under some instrument, but still being 
 in under such circumstances that the Court, on the prin- 
 ciples of equity, would hold him a trustee, then the 25th 
 section does not apply ; and if the possession of such con- 
 structive trustee has continued for more than 20 years, 
 be may set up the Statute against the party who, but for 
 lapse of time, would be the right owner : " Ibid. 
 
 As the section applies so long as no purchase for value Applies to 
 without notice can be set up against the claim of the *''"^*^® ^'^ 
 
 , persons 
 
 cestui que trust, no time will bar him while the estate is claiming 
 in the trustee, or in some one claiming through him : him"^ 
 Salter v. Cavanagh, 1 Dr. & Wal. 668: Attorney-General 
 V. Flint, 4 Hare, 147 ; Sturgis v. Morse, 3 D. & J. 1. 
 
 A trust estate omitted from the account of a bankrupt. Trusts in 
 and coming by conveyance from the trustee under the P*^?"^ 
 
 ■ 11 1 • 1 111 claiming 
 
 will to the assignee under a second bankruptcy, was held through 
 to have remained in the hands of the latter as an express *'^'^*^®' 
 trustee, affected by the trusts of the will, and thus to be 
 subject to the claims of the former creditors, notwith- 
 standing the Statute : Sturgis v. Morse, 3 D. & J. 1 ; 
 see Blair v. Nugent, 3 J. & L. 660 ; Lawton v. Ford, 2 
 Eq. 97. 
 
 When an executor has assented to a legacy bequeathed When 
 to him upon trusts, and has set apart the legacy accordingly, ^'^^°"^*™ 
 he is a trustee to all intents and pui-poses, and cannot set ^^ express 
 up the Statute : Phillipo v. Mtmnings, 2 M. & Cr. 309 ■ *'^'^*^®- 
 
 X 2 
 
308 
 
 STATUTE OF LIMITATIONS — EXPRESS TRUSTS, 
 
 Where 
 legacy not 
 Bet apart. 
 
 Effect of 
 laches of' 
 legatee. 
 
 Trust to 
 pay debts 
 and lega- 
 cies. 
 
 Express 
 trust for 
 indefinite 
 claimants 
 on pen- 
 sion fund. 
 
 Express 
 trust for 
 sale. 
 
 Covenant 
 to settle. 
 
 O'Reilly v. Walsh, I. E. 6 Eq. 555; Thomson v. Eastwood, 
 L. R. 2 App. Ca. 215. 
 
 But if the legacy has not been set apart as a trust fund, 
 a will by the surviving executor, or by both executors, 
 creating a trust for the payment of their debt.s, will not 
 prevent the lapse of time from barring the legatee : 
 Phillipo V. Munnings, supra; Harcourt v. White, 
 28 Bea. 303, 309. 
 
 But where the legatee or his representative has allowed 
 a very long time to elapse without attempting to enforce 
 the trust, equity will, when enforcing it, apply, as to 
 interest on the legacy, the principle of the Statute, and 
 allow interest for six years before action brought : Thom- 
 son v. Eastwood, supra. 
 
 A devisee of land charged with debts and legacies, 
 devising it on trust for sale for the payment, out of the 
 rents, of his testator's debts and legacies, creates an ex- 
 press trust which will not be barred by the Statute : 
 Watson V. Saul, 1 Giff. 188. 
 
 A fund established for granting pensions to certain 
 members of the Civil Service in India was vested in 
 persons appointed to manage it, and who were called the 
 " trustees of the Fund." It was held that these persons 
 were not mere trustees for the association, but express 
 trustees, and that the members of the Fund were cestuis 
 que trust, against whom the Statute did not run : Ed- 
 wards V. Warden, L. R. 1 App. Ca. 281 ; and see Cater 
 V. Croydon Canal Co., 4 Y. & C. 405. 
 
 An express trust for sale was held to be enforceable 
 after 50 years, at the instance of persons entitled to the 
 proceeds : Mutloiu v. Bigg, 18 Eq. 246, following Gough 
 V. Bult, 16 Sim. 323, and Biirroives v. Gore, 6 H. L. C. 
 907 ; but on appeal it appearing that the legatees had 
 elected to take the land in satisfaction, a reconversion 
 was held to have been caused, and the right accordingly to 
 be barred, 1 Ch. D. 385 ; and see Roberts v. Gordon, 6 Ch. 
 D. 531. 
 
 A covenant to assign and settle a sum of money simply. 
 
STATUTE OP LIMITATIONS — EXPRESS TRUSTS. 309 
 
 is a mere legal obligation which is barred by the Statute 
 in the ordinary way ; but a covenant by a trustee, after a 
 recital of the payment of a sum of money (which however 
 had not been paid), to invest it ia the joint names of 
 himself and the settlor, constitutes the settlor also a 
 trustee of the covenant, against the due performance of 
 which the Statute has no effect; Stone v. Stone, 5 Ch. 74; 
 and see Spickernell v. Hotham, Kay, 673. 
 
 The relation of trustee and cestui que trust does not Solicitor 
 arise so as to prevent time from running, by the mere ^""^ °^®°'' 
 receipt and payment of money by a solicitor for his 
 client : Be Hindmarsh, 1 Dr. & Sm. 129 ; Watson v. 
 WoodTnan, 20 Eq. 721. 
 
 But an agent who held a power of attorney to sell and Agent, 
 invest in the name of his principal was held to stand in a 
 fiduciary position, and therefore unable to set up the 
 Statute : Burdiclc v. GarricJc, 5 Ch. 233 ; and see Shel- 
 don v. Weldman, 1 Ca. in Ch. 26 ; Heath v. Henly, 
 Ibid. 20 ; Teed v. Beere, 5 Jur. N. S. 381. 
 
 Bankers are not in a fiduciary relation to their cus- Bankers, 
 tomers : Foley v. Hill, 2 H. L. C. 28 ; see ante, p. 302. 
 
 A deed appointing receivers to pay rents to certain an- Receiver by 
 nuitants may constitute an express trust by making the '^^®'^- 
 annuitants cestuis que trust under it : Knight v. Bowyer, 
 2 D. & J. 421. 
 
 Where, upon the dissolution of a friendly society, a Express 
 trust was declared for the benefit of creditors, a debt ^^ "^ 
 contracted twenty years before was held not to be creditors, 
 barred : Pare v. Glegg, 29 Bea. 589. As to the effect 
 of tiTJsts for creditors upon statute-barred debts, see ante, 
 p. 39. 
 
 A tenant for life of renewable leaseholds taking a re- Tenant for 
 newal to himself is not an express trustee upon the trusts j^^ [™ifi^'. 
 of the settlement : Re Dane, I. E. o Eq. 498. self. 
 
 Nor is a remainderman of renewable leaseholds who Efimainder- 
 enters into possession an express trustee of a fee farm f^g'f^rm'"^ 
 grant to himself: Ihid. grant. 
 
 A trustee de son tort, usurping the execution of an Trustee de 
 
 son tort. 
 
310 
 
 STATUTE OF LIMITATIONS — EXPRESS TRUSTS. 
 
 Trustee 
 acting 
 though not 
 bound to 
 act. 
 
 Executor 
 acting in 
 self-im- 
 posed 
 trust. 
 
 No express 
 trust for 
 unpaid 
 vendor. 
 
 Mortgage 
 v/ith trust 
 for sale no 
 express 
 trust. 
 
 Though 
 taken in 
 name of 
 trustee. 
 Trust of 
 surplus. 
 
 Mortgagee 
 when trus- 
 tee under 
 power of 
 sale. 
 
 Fraud. 
 
 Guardian 
 and ward. 
 
 express trust, -will be deemed to be an express trustee : 
 Quinton v. Frith, I. E. 2 Eq. 416. 
 
 A person to whora trust estates do not pass, owing to a 
 charge of legacies by the will, but acting in the trusts, 
 is by stich conduct an express trustee, so that a claim 
 against him will not be barred by the Statute : Life As- 
 sociation V. Siddal, 3 D. F. & J. 58, 72. 
 
 Where an executor had taken upon himself the duty of 
 managing the testator's business he was held not to have 
 been an express trustee, but only a constructive trustee, as 
 to Avhom it was said that there is a time beyond which the 
 Court will not enter into an inquiry upon a case of con- 
 troverted facts for the purpose of raising and giving effect 
 to a trust by mere implication : PortlocJc v. Gardner, 1 
 Ha. 594, 607. 
 
 The common lien of the vendor for unpaid purchase- 
 money does not constitute the purchaser an express trustee 
 for him under the Statute : Toft v. Stephenson, 7 Ha. 1 ; 
 1 D. M. & G. 28. 
 
 A common mortgage security taken by way of trust for 
 sale is nothing more than a mortgage, and there is under 
 it no express trust which keeps out any Statute of Limita- 
 tion : Locking v. Parker, 8 Ch. 30, 39. 
 
 And the fact that the security is taken in the name of a 
 trustee for the mortgagee makes no difference : Ibid. 
 
 The ultimate express trust of the sale-moneys would 
 keep alive the mortgagor's right to any surplus ; but there 
 must be an allegation that such surplus exists, in order to 
 enforce any such right : Ibid., at p. 40. 
 
 But a mortgagee has been considered, with regard to 
 the exercise of his power of sale, to be a trustee for the 
 mortgagor {Downes v. Orazebrooh, 3 Mer. 200 ; Chambers 
 V. Goldivin, 9 Ves. 271 ; Cholmondeley v. Clinton, 2 J. & 
 W. 190), at least to the extent of a fraudulent exercise 
 of the power in order to get the estate into his own hands 
 ■ — a device which after a great length of time will not be 
 supported : Robertson v. Forris, 1 Giff. 421. 
 
 The relation of guardian and ward is strictly that of 
 
STATUTE OF LIMITATIONS — EXPRESS TRUSTS. 811 
 
 trustee and cestui que trust (Beaufort r. Berty, 1 P. W. 
 704 ; Mellish v. Mellish, 1 S. & S. 145) ; and a period of 
 nine or ten years is no bar to an account against a guar- 
 dian on the ground of stale demand :. Mathew v. Brise, 14 
 Bea. 341 ; but see Lockey v. LocJcey, Pr. Ch. 518. 
 
 And wbere any person enters upon the property of an Person 
 infant, whether the infant has been actually in posses- infant's 
 sion or not, such person -will be fixed with a trust as ^""^ 
 to the infant, and be bound to account as a bailiff or 
 trustee : 
 
 (1) "Whenever he is the natural guardian of the infant : 
 Thomas v. Thomas, 2 K. & J. 79 ; Quinton v. Frith, I. R. 
 2 Eq. 414. 
 
 (2) Whenever he is so connected by relationship or 
 otherwise with the infant as to impose upon him a duty to 
 protect, or at least not to prejudice his rights : Nanney v. 
 Williams, 22 Bea. 452; Felly y. Bascomhe,4< Giff. 390, on 
 app. 34 L. J. Ch. 233 ; Quinton v. Frith, supra. 
 
 (3) Whenever he takes possession ■with knowledge or 
 express notice of the infant's rights : Blomfield v. Eyre, 8 
 Bea. 250 ; Quinton v. Frith, swpra ; but see Hagley v. 
 West, 3 L. J. Ch. 63; Crowther v. Crowther, 23 Bea. 
 305. 
 
 Charities are trusts, and as such are within the excep- Charities 
 tion of s. 25 : Commissioner's of Charitable Donations v. X'25™ 
 Wyhrants, 2 J. & L. 182; Attorney-General v. Christ's 
 Hospital, 3 .M. & K. 344 ; Magdalen College v. Attorney- 
 General, 6 H. L. C. 189. 
 
 A charge of debts on real estate in case of a deficiency Charge of 
 , . -. T. -T 1 debts. 
 
 of personalty, with a direction to raise the money by 
 
 mortgage, is a mere charge with a collateral authority 
 given to executors to raise the money, and is not as such 
 an express trust within the words of the statute : Dicken- 
 son V. Teasdale, 1 D. J. & Sm. 52. So also a charge of an Legacies. 
 annuity, or of legacies, creates no express trust : Francis 
 V. Grover, 5 Ha. 39 ; Proud v. Proud, 32 Bea. 234 ; and 
 see Burrowes v. Gore, 6 H. L. 0. 961, per Lord St. 
 Leonards. 
 
312 
 
 LIMITATIONS — CHAEGES — EQUITABLE CLAIMS. 
 
 Express 
 trust to 
 pay money 
 or legacies 
 barred ty 
 new Limi- 
 tation 
 Act. 
 
 Bar of 
 
 equitalile 
 clai us. 
 
 Charges and Trusts to pay Money or Legacies. 
 
 By s. 10 of the Keal Property Limitation Act, 1874 
 (which will come into force on the 1st January, 1879), it 
 is enacted that " after the commencement of this Act no 
 action, suit, or other proceeding shall be brought to 
 recover any su7)i of money or legacy charged upon or 
 payable out of any land or rent, at law or in equity, and 
 secured by an express trust, or to recover any arrears of 
 rent, or of interest in respect of any sum of money or 
 legacy so charged, or payable, and so secured, or any 
 damages in respect of such arrears, except within the 
 time within which the same would be recoverable if there 
 were not any such trust : " 37 & 38 Vict. c. 57. 
 
 A trustee, under an express trust, of money, or of a 
 legacy charged on land, will therefore under this section be 
 entitled to the benefit of s. 8 of the same Act, by which it 
 is enacted that money charged on land at law or in equity, 
 or any legacy, shall be deemed to have been satisfied after 
 twelve years next after a present right to receive the same 
 shall have accrued to some person capable of giving a dis- 
 charge for or release of the same, unless in the meantime 
 some part of the principal money, or some interest thereon, 
 shall have been paid, or some acknowledgment of the right 
 thereto shall have been given in writing signed by the 
 person by whom the same shall be payable, or his agent, 
 to the person entitled thereto, or his agent ; and in such 
 case within twelve years after such payment or acknow- 
 ledgment. 
 
 Bar of Equitable Claims. 
 
 By the 24th section of the Act of 3 & 4 Will. 4, c. 27, 
 no person claiming any land or rent in equity may bring 
 any suit to recover the same but within the period during 
 which he might, under the Act, have made an entry or 
 distress, or brought an action to recover the same respec- 
 tively, if he had been entitled at law to such estate 
 interest, or right in or to the same as he may claim therein 
 
LIMITATIONS — BAE IN EQUITY. 313 
 
 in equity, — thus barring equitable claims to the extent that 
 they would have been barred if legal : Archbold v. Scully, 
 9 H. L. C. 360 ; Spichernell v. Hotham, Kay, 669. 
 
 With regard to equitable and legal claims against Waste. 
 tenants for life for waste, see Leeds v. Amherst, 2 Ph. 
 117; Harcourt v. White, 28 Bea. 303; Seagram v. 
 Knight, 2 Ch. 628; Higginhoiham v. Hawldns, 7 Ch. 
 676 ; Birch-Wolfe v. Birch, 9 Eq. 683. 
 
 Though trusts are excepted from the operation of the Trusts by 
 Statutes of Limitations, the rule holds good only between ta^erby" 
 trustees and cestuis que trust; and though a trustee laches, 
 cannot set up the Statute against his cestuis que trust, 
 a mere trustee by implication, and as such affected by 
 an equity, can be proceeded against only within a 
 reasonable time, for both Courts of Law and of Equity 
 preserve an analogy to the Statutes of Limitations : 
 Toiunshend v. Townshend, IB. C. C. 551 ; Bonney 
 V. Ridgard, 1 Cox, 145 ; Andrew v. Wrigley, 4 B. C. C. 
 125 ; Beckford v. Wade, 17 Yes. 87, 96 ; Chalmer v. 
 Bradley, 1 J. & W. 51 ; Clanricarde v. Henning, 30 Bea. 
 175 ; Gresley v. Mousley, 4 D. & J. 78, 95 ; Lyddon v. 
 Moss, 4 D. & J. 104 ; and in Hovenden v. Lord Annesley 
 (2 Sch. & L. 630), Lord Eedesdale says that " the Statute 
 of Limitations, applying itself to certain legal remedies, 
 for recovering the possession of lands, for recovering of 
 debts, &c., equity, which in all cases follows the law, acts 
 on legal titles, and legal demands, according to matters of 
 conscience which arise, and which do not admit of the 
 ordinary legal remedies : nevertheless, in thus administer- 
 ing justice, according to the means afforded by a Court of 
 Equity, it follows the law : and see Salter v. Gavanagh, 1 
 Dr. & "Walsh. 668 ; and per Lord Westbury in Knox v. 
 Gye, L. E. 5 H. L. 674. 
 
 Thus wherever the legislature has limited a period for Analogy 
 proceedings at law, equity will in analogous cases consider t„ry ^^^' 
 the equitable rights as bound by the same limitation : 
 Hovenden v. Annesley, 2 Sch. & L. 632 ; Penny v. 
 Allen, 7 D. M. & G. 426 ; Story \. Gape, 2 Jur. N. S. 706. 
 
314 
 
 LIMITATIONS — BAK IN EQUITY. 
 
 Effect of 
 s. 2i. 
 
 Executor 
 of trustee 
 liable for 
 breach of 
 trust. 
 
 Term re- 
 maining in 
 trustees. 
 
 of cestui 
 que trust 
 
 The doctrine thus propounded and acted upon before 
 the Statute must now be taken to be incorporated in the 
 24th section ; and thus it is said that the discretion of the 
 Court in applying the doctrine is removed, and has become 
 a statutory duty : Berrington v. Evans, 1 Y. & C. 434 ; 
 and see Sugden, Essay of the Eeal Property Statutes, 
 p. 99. 
 
 The analogy of the Statute of Limitations cannot be set 
 up by an executor in answer to a claim founded on a breach 
 of trust by his testator ; and Courts of Equity are not, 
 in dealing with equitable debts, bound by the Statute of 
 21 Jac. 1, c. 16, providing a six years' limitation to a simple 
 contract debt, or a twenty years' limitation to a specialty 
 debt, of a testator: Baker v. Martin, 5 Sim. 380 ; Story 
 V. Gape, 2 Jur. N. S. 706 ; Ohee v. Bisho'p, 1 D. F. & J. 
 137 ; Brittlebank v. Goodwin, 5 Eq. 555, in which Dunne 
 T. Doran, 13 I. Eq. R. 545, and Brereton t. Hutchinson, 
 2 I. Ch. R. 648, 3 I. Ch. R. 361, contra, were disapproved 
 and not followed. Newport v. Bryan, 5 I. Ch. R. 119, is 
 to the same effect as the other Irish cases. 
 
 The liability of the executor, or devisee of a testator, or 
 the administrator or heir of an intestate, does not depend 
 on any new assumpsit, but originates from, and depends 
 entirely on, the liability of the testator or intestate, and 
 a demand founded on such, a liability for a breach of trust 
 or misappropriation committed by him is not barred by 
 the lapse of six years after his death : Obee v. Bishop, 
 supra ; Brittlebank v. Goodwin, 5 Eq. 553. 
 
 Where there is a trust, whether for raising portions or 
 annuities, and the legal estate remains iindisturbed in the 
 trustees, the parties who have that estate may immediately 
 recover possession, and the cestui que trust's right is saved 
 by the 25th section : Young v. Lord Waterpark, 15 L. J. 
 Ch. 63 ; Cox v. Dohnan, 2 D. M. & G. 592 ; compare 
 Hickman v. Upsall, 2 Ch. D. 617, reversed 4 Ch. D. 
 144. 
 
 If the cestui que trust is in possession, though his rela- 
 tion to the trustee may at law be that of tenant at will, 
 
LIMITATIONS — BAR IN EQUITY. 315 
 
 the trustee's estate is not destroyed by mere lapse of time : not adverse 
 
 ^ T_,„^„„ to trustee. 
 
 Qarrard v. Tuck, 8 C. B. 231. 
 
 But where the cestui que trust would be barred if his ,^™^*®^., 
 
 • -^ . iiir77- barred if 
 
 title were legal, his trustee is also barrea : Melting v. cestui que 
 Leah, 16 C. B. 652 ; JDrummond v. Sant, L. K. 6 Q. B. *™;4^ 
 763 ; and see Spickemell v. Hotham, Kay, 669. 
 
 The possession of one cestui que trust cannot bar the Possession 
 title of his co-cestuis que trust and the trustees : Melling ^u,, lyy^^t 
 Y. Leah, supra ; Lister v. Pickforcl, 34 Bea. 576 ; see '"'"' *^ °°* 
 Burroughs v. M'Oreight, 1 J. & L. 290. 
 
 A trustee who is in possession of land, is so on behalf Mistake as 
 of his cestuis que trust, and his making a mistake as to cestuis que 
 the persons who are really his cestuis que trust cannot *'""*'• 
 affect the question : Lister v. Pichford, 34 Bea. 576. 
 
 The cestui que trust is barred if the trustee is barred Cestui que 
 by adverse possession : Lewellin v. MacMvorth, 2 Eq. Ca- barred if 
 Ab. 579 ; Hovenden v. Annesley, 2 Sch. & L. 629 ; Lewin, J^^t'^f 
 
 1 .... . Darred. 
 
 p. 708, where he points out, however, that if " the cestui 
 que trust would, if his title were legal, have more than 
 the ordinary time to sue (as where he is under disability 
 or entitled in remainder only), he will be allowed the 
 same extended period for suing in equity, notwithstanding 
 that the trustee may be barred." Mr. Lewin further ob- 
 serves that " where the subject-matter of the trust is a 
 personal debt, it seems difficult to avoid the conclusion 
 that where the trustee is barred the cestui que trust is 
 barred also," and that " the proper remedy of the cestui 
 que trust is to proceed at law in the name of the trustee," 
 and further, " that the same resulb would seem to follow 
 where the subject-matter of the trust is land, and the 
 possession has been held adversely to both the trustee 
 and cestui que trust, without any species of privity, as 
 when the trustee is disseised .... The proper course for 
 the cestui que trust is to bring [an action for recovery of 
 the land] in the name of the trustee ;" and see Burrowes 
 v. Oore, 6 H. L. C. 940 ; Darby and Bosanquet on Statutes 
 of Limitations, p. 186. 
 
 An acknowledgment by trustees for payment of debts Acknow- 
 ledgment 
 
316 
 
 DELAY — ACQUIESCENCE —STALE DEMAND. 
 
 by one 
 trustee. 
 
 Action 
 keeps right 
 alive. 
 
 DemniTer. 
 
 keeps a debt alive against all parties beneficially interested 
 in the estate : St. John y. Boughton, 9 Sim. 219 ; Toft v. 
 Stephenson, 1 D. M. & G. 28. 
 
 An acknowledgment by one trustee does not prevent his 
 co-trustee from setting up the Statute : DicJcenson v. 
 Teasdale, 1 D. J. & Sm. 52. 
 
 Under the new practice of the Chancery Division the 
 right of a cestui que trust would probably, by analogy to 
 the former practice, which saved the right by the filing of 
 a bill, be saved by the issue of a writ in an action before, 
 though it might not have been served until just after, 
 the expiration of the statutory period of limitation : see 
 Coppin V. Gray, 1 Y. & C. C. C. 205 ; Purcell v. Blenner- 
 hassett, 3 J. & L. 24 ; Byron v. Cooper, 11 CI. & F. 556. 
 
 Inasmuch as the Statute of Limitations does not merely 
 bar the right to recover land, but takes away the title to 
 the land, it may be raised by demurrer : Dawkins v. 
 Penrhyn, 6 Ch. D. 319. 
 
 Presump- 
 tion from 
 delay. 
 
 Belay and Acquiescence. — Stale Demands. 
 
 It is provided by s. 27 of the Statute of Limitations of 
 2 & 3 Will. 4, c. 27 (which section is not repealed by the 
 Real Property Limitation Act, 1874), that nothing in the 
 former Act contained shall be deemed to interfere with 
 any rule or jurisdiction of Courts of Equity in refusing 
 relief on the ground of acquiescence or otherwise, to any 
 person whose right to bring a suit may not be barred by 
 virtue of that Act. 
 
 After a great length of time, and in the absence of all 
 explanation accounting for the delay in asserting the claim, 
 every presumption, including that of actual payment, must 
 be made in favour of the person originally bound to pay : 
 Pickering v. Stamford, 2 Yes. Jun. 283 ; Pattison v. 
 Hawkesworth, 10 Bea. 375. 
 
 But where there is a statutory bar, mere length of time, 
 short of the period fixed by the Statute, and unaccom- 
 panied by any other circumstances, is not of itself a suffi- 
 
DELAY — ACQUIESCENCE — STALE DEMANDS. 317 
 
 cient ground to presume a release or extinguishment of 
 a right : Eldridge v. Knott, Cowp. 214. 
 
 Where cestuis que trust, knowing their rights, see the Standing 
 estate in the possession of others, and improving at their 
 expense, lie by and make no claim for many years, the 
 Court would be bound to pi-esume a release or waiver or 
 an agreement that it should be enjoyed as it has been : 
 Chalmer v. Bradley, 1 J. & W. 51, 65. 
 
 Calling for accounts is always much discouraged after Claim for 
 the death of the accounting party, if he have lived long ^fter death 
 enough to have accounted in his lifetime. Therefore, ?^ account- 
 where a cestui que trust has lain by after his majority for 
 a long period (e.g., 19 years), the relief will not be granted 
 in the absence of very special circumstances : Chalmer v. 
 Bradley, 1 J. & W. 51, 62 ; Huet v. Fletcher, 1 Atk. 467; 
 Gregory v. Gregory, G. Coop. 201 ; Campbell v. Walker, 5 
 Ves. 678 ; Hercy v. Dinwoody, 2 Ves. Jun. 87; Varices v. 
 White, 11 Ves. 226 ; Blair v. Ormond, 1 De G. & Sm. 
 428 ; Payne v. Evens, 18 Eq. 356 ; and see ante, pp. 194, 
 195. 
 
 So in the case of gross laches on the part of the cestui Claim after 
 que trust, even under an express trust, a Court of Equity resistance 
 will not allow a dormant claim to be set up when the destroyed, 
 means of resisting it, if unfounded, have perished, and 
 would therefore not cast a burden of proving such an affir- 
 mative as that forty years ago cottage rents were properly 
 collected, when the witnesses who might have proved the 
 fact have long ago been dead : Bright v. Legerton, 2 D. F. 
 & J. 606, 617. 
 
 In such cases the very forbearance to make the demand Presump- 
 affords a presumption that the claimant is conscious it assent, 
 was satisfied, or that he intended to relinquish it : 
 Pickering v. Stamford, 2 Ves. Jun. 332 ; for length of 
 time, where it does not operate as a statutory or positive 
 bar, operates simply as evidence of assent or acquiescence : 
 Life Association v. Siddal, 3 D. F. & J. 68, 72. 
 
 But although the rule is that the onus lies on the party harden of 
 relying on acquiescence to prove the facts from which the 
 
318 
 
 DELAr — ^ACQUIESCENCE — STALE DEMAND. 
 
 Commou 
 mistake. 
 
 Admissiou 
 of correct- 
 ness of old 
 accounts. 
 
 Costs wLero 
 no accounts 
 kept. 
 
 Where 
 there are 
 013 en and 
 continuing 
 accounts, 
 no time 
 runs. 
 
 Cestui que 
 trust not 
 barred if 
 ignorant of 
 rights. 
 
 Slight 
 delay after 
 notice. 
 
 consent of the cestui que trust is to be inferred, there may 
 be cases in which, from great lapse of time, such facts 
 might be and ought to be presumed : Life Association v. 
 Siddal, S D. F. & J. 77. 
 
 In tlie case of common mistake between the trustee 
 and the cestui que trust the latter is not barred by acqui- 
 escence ; Randall v. Errington, 10 Ves. 428 ; Morse v. 
 Royal, 12 Ves. 355. 
 
 If an account has been kept by the trustee of old trans- 
 actions, the cestui que trust after a long time coming for 
 relief against him must admit its correctness, or take upon 
 himself the burden of proving its inaccuracy ; Ghalmer 
 V. Bradley, 1 J. & W. 51, 65 ; Portlock v. Gardner, 1 
 Hare, 594. 
 
 But though the Court will not, after a long lapse of 
 time, direct trustees to account for a trust fund which the 
 facts show has been duly distributed, it being the duty of 
 the trustees to preserve evidence of that distribution, the 
 Cotirt will not give the trustees their costs if they have 
 neglected so to do : Payne v. Evens, 18 Eq. 356, 367. 
 
 Where the relation of trustee and cestui que trust has 
 continued — the transactions between them not closed, and 
 the delay of the claim attributable to the trustee not 
 having given that information to his cestui que trust to 
 which he was entitled, and accounted with him, as the 
 Court is of opinion he ought to have done, — no time will 
 preclude an account from the commencement of the trust : 
 Wedderburn v. Wedderhurn, 4 M. & Cr. 41, 53. 
 
 Acquiescence imports knowledge ; for a cestui que trust 
 cannot be bound by acquiescence unless he has been fully 
 informed of his rights and of all the material facts and 
 circumstances of the case : Cholmondeley v. Clinton, 2 
 Mer. 362 ; Marker v. Marker, 9 Ha. 16 ; Life Association 
 V. Siddal, 3 D. F. & J. 74 ; Farrant v. Blanchford, 1 D. 
 J. & Sm. 119. 
 
 It is not necessarily a case of acquiescence by a cestui 
 que trust who knows that the trustees have committed a 
 breach of trust, if he nevertheless does not come imme- 
 
DELAY — ACQUIESCEKCE — STALE DEMANDS. 319 
 
 diately to complain of it, provided he has not connived at 
 
 or received any benefit from the breach of trust : Phillipson 
 
 V. Oatty, 7 Ha. 516 ; Hanchett v. Briscoe, 22 Bea. 49 G. 
 
 This might be otherwise if he stood by and permitted 
 
 another cestui que trust to misrepresent his interests, in 
 
 order to induce the trustees to commit the breach of 
 
 trust : Evans v. Bichnell, 6 Ves, 174 ; and see Phillipson 
 
 V. Gatty, supra. 
 
 As to the extent to which acquiescence will bind the Acquies- 
 cence by 
 representative of a deceased partner who delays the asser- executor 
 
 tion of his rights to participate in the advantage of "f deceased 
 
 renewals of leases by the continuing partners, see ante, 
 
 pp. 76, 77. 
 
 And it is to be observed that greater indulgence is Creditors, 
 to be allowed to a body of persons, e.g., creditors, in 
 asserting their rights, than to an individual, see ante, 
 p. 195. 
 
 The rules upon the subject of stale demands which apply Stale de- 
 to ordinary cases, if they apply at all, do not apply with "'^bst 
 equal force to cases of express trusts. They are counter- express 
 vailed by the express duty incumbent upon the trustee to 
 apply the trust funds according to the trusts ; but the 
 Court will modify the account against trustees where there 
 has been a delay or acquiescence on the part of the cestui 
 que trust, and perhaps presume a release or abandonment 
 of the right by the cestui que trust : Knight v. Bowyer, 2 
 D. & J. 421, 443. 
 
 A cestui que trust under an express trust, whose Where 
 interest is reversionary, is not bound to assert his title jeversion- 
 until it comes into possession (as to which see s. 5 of the ^^y. 
 Act of 2 & 3 Will. 4, c. 27, which will be replaced by s. 2 
 of the Real Property Limitation Act, 1874) ; but the mere 
 circumstance that he is not bound to assert his title does 
 not bear upon the question of his assent to a breach of 
 trust ; he is not less capable of giving such assent when 
 his interest is in reversion than when it is in possession ; 
 whether he has done so is a question to be determined on 
 the facts of each particular case : Life Association v. 
 
320 
 
 ACQUIESCENCE — PO VEKT Y — FBAUD, 
 
 Siddal, 3 D. F. & J. 58, 73 ; compare Thompson v. Simp- 
 son, 1 Dr. & "War. 459, 489 ; Roberts v. Tunstall, 4 Hare, 
 257, 265 ; Mehrtens v. Andreivs, 3 Bea. 72, 76 ; Browne 
 V. Gross, 14 Bea. 105 ; Lewis v. Rees, 3 K. & J. 132. 
 
 But where the trust is definite, a clear breach of trust 
 cannot be held to have been sanctioned or concurred in 
 by the mere knowledge and non-interference on the part 
 of the cestui que trust before his interest has come into 
 possession ; Life Association v. Siddal, supixo ; see March 
 V. Russell, 3 M. & Cr. 31. 
 
 Thus, where the interest was contingent on failure of 
 issue of a tenant for life, time was held not to have run 
 against the remainderman until after the death of the 
 tenant for life : Butler v. Garter, 5 Eq. 276. 
 
 Where an expectant tenant for life in remainder sees a 
 tenant for life in possession cut timber, and not only takes 
 no step to prevent it during his life, but does not for 
 nearly twenty years after his death seek to make his 
 estate liable for those acts, a Court of Equity will not 
 afford relief to the tenant for life in remainder : Sarcourt 
 V. White, 28 Bea. 303, 308. 
 Poverty. Relief will not be granted to a person who has slept 
 
 upon his rights for an unreasonable length of time, though 
 he allege that the fraud in question has left him in dis- 
 tressed circumstances : Hovenden v. Annesley, 2 Sch. & 
 L. 639. 
 
 And where the equity to rescind a transaction depends 
 wholly upon the nature of the transaction, as a sale of a 
 reversionary interest (no misrepresentation, concealment, 
 or ignorance of facts being relied upon), the sole fact of 
 the poverty of the claimant is not enough to prevent time 
 from running against the presumption of his acquiescence : 
 Roberts v. Tunstall, 4 Hare, 257, 269. 
 
 Fraud. 
 Fraud: j^ eveiy case of a concealed fraud, the right of any 
 
 person to bring a suit in equity for the recovery of any 
 land or rent of which he, or any person through whom he 
 
STATUTE OP LIMITATIONS — FEAUD. '3?- 1 
 
 claims, may have been deprived by such fraud, shall be 
 deemed to have first accrued at and not before the time 
 at which such fraud shall or with reasonable diligence 
 might have been first known or discovered ; provided that 
 nothing in this clause contained shall enable any owner of 
 lands or rents to have a suit in equity for the recovery of 
 such lands or rents, or for setting aside any conveyance of 
 such lands or rents on account of fraud against any bond 
 fide purchaser for valuable consideration who has not 
 assisted in the commission of such fraud, and who at the 
 time that he made the purchase did not know and had no 
 reason to believe that any such fraud had been committed : 
 3 & 4 Wm. 4, c. 27, s. 26, which section is not affected 
 by the Real Property Limitation Act, 1874. 
 
 The principle of this enactment was that of the Court 
 of Chancery, under which, if a trustee is in possession and 
 does not execute his trust, the possession of the trustee is 
 the possession of the cestui qiie trust; and if the only 
 circumstance is, that he does not perform his trust, his 
 possession operates nothing as a bar, because his posses- 
 sion is according to his title ; but where a person who is 
 in possession by fraud, is not in the ordinary sense of the 
 word a trustee, but is to be constituted a trustee by a 
 decree of a court of equity founded on fraud, his posses- 
 sion in the meantime is adverse to the title of the person 
 who impeaches the transaction on the ground of fraud, and 
 time will run from the time when the circumstances of the 
 fraud were discovered : Hovenden v. Annestey, 2 Sch. & 
 Lef. 633. 
 
 In a case in which the cestui que trust alleged, after Inquiries 
 forty years, that he had only lately discovered that the fra^ycil'™ 
 trustee had kept the estate as his own, stating that he covered. 
 had paid the testator's debts, inquiries were directed 
 whether the cestui que trust had notice of the facts, 
 whether he had released, and as to the value of the 
 estate as compared with the debts : Chal/tner v. Bradley, 
 IJ. & W. 51. 
 
 But this relief will be much curtailed in a case where Case of 
 
 „ suspicion 
 
 only. 
 
322 
 
 STATUTE OF LIMITATIONS — FRAUD. 
 
 Fraudulent 
 conceal- 
 ment of 
 rights. 
 
 Keceiver 
 of trust 
 Property is 
 a truste®- 
 
 Borrower 
 of trust- 
 money. 
 
 Particeps 
 criminis. 
 
 Want of 
 intellect no 
 excuse. 
 
 the plaintiff's case rests upon suspicioa and is not clearly 
 made out, and is submitted to the Court after an unrea- 
 sonably long delay : Pennell v. Home, 3 Drew. 337. 
 
 Time will not run against a person who has been care- 
 fully brought up in the notion that he could not, owing 
 to the existence of an elder legitimate brother (who, how- 
 ever, was in fact illegitimate), come into possession, until 
 with reasonable diligence he might have ascertained that 
 he had been the victim of such concealed fraud : Vane v. 
 Vane, 8 Ch. 383 ; and see Ghetham v. Hoare, 9 Eq. 571. 
 
 The remedy given against a person who receives trust 
 property with knowledge of a breach of trust is founded 
 on fraud, and the right of the party defrauded is therefore 
 not affected by lapse of time, or, generally speaking, by 
 anything done or omitted to be done, so long as he re- 
 mains, without any fault of his own, in ignorance of the 
 fraud that has been committed : Rolfe v. Gregory, 4 D. J. 
 & Sm. 576 ; see Gharter v. Trevelyan, 11 CI. & F. 714 ; 
 Pyrah v. Woodcock, 24 L. T. N. S. 407 ; Lewis v. Thomas, 
 3 Hare, 26. 
 
 If the person receiving the money takes it as a loan, his 
 conscience is still affected with the trust, and he cannot 
 separate the loan from the trust and insist that the loan, 
 being barred by the statute, the trust is barred also : 
 Ernest v. Croysclill, 2 D. F. & J. 175, 198. 
 
 Where a trustee has also a beneficial interest in re- 
 mainder contingent on the failure of issue of a tenant for 
 life, although children might have made him liable for a 
 misappropriation of the funds, the husband of the tenant 
 for life, having been guilty of such misappropriation, was 
 held not to be able to set up the Statute against the trus- 
 tee in the absence of circumstances showing knowledge in, 
 and acquiescence by, the latter : Butler v. Garter, 5 Eq. 276. 
 
 The Court will not relieve a man from the consequences 
 of concealed fraud practised by another on the ground that 
 his intellect was dull, and that he had therefore failed to 
 discover the fraud; actual lunacy would, however, be a 
 sufficient excuse : Manhy v. Bewicke, 3 K. & J. 369, 
 
LIMITATIONS — ACCOUNT OF RENTS AND PROFITS. 323 
 
 Accoiont of Bents and Profits. 
 
 Where there is a trust and a mere equitable title, the Limit of 
 Court will give the cestui que trust an account of the 
 rents and profits from the time the title accrued, unless 
 upon special circumstances ; and then will, in its discre- 
 tion, restrict it to the time of bringing the action : Dormer 
 V. Fortescue, 3 Atk. 124, 130 ; Hicks v. Sallitt, 3 D. M. & 
 G. 782 ; Morgan v. Morgan, 10 Eq. 99 ; Hickman v. Up- 
 sall, 4 Oh. D. 144 ; Thomson v. Eastwood, L. Tl. 2 App. 
 Ca. 216, 241. 
 
 Such special circumstances include the case of the de- Special 
 fendant having no notice of the plaintiff's title, nor having stances. 
 had the deeds and writings showing the plaintiff's title in 
 his custody, and also the case of the title of the plaintiff 
 appearing by deeds in a stranger's custody : Dormer v. 
 Fortescue, 3 Atk. 124. 
 
 Delay will also have the effect of restricting the account Delay, 
 to the date of bringing the action : Dormer v. Fortescue, 
 3 Atk. 124 ; Pettiiuard v. Prescott, 7 Ves. 541 ; Bowes v. 
 East London Waterworks Co., 3 Madd. 375 ; Hicks v. 
 Sallitt, 3 D. M. & G. 782 ; Sturgis v. Morse, 3 D. & J. 1 ; 
 Wright v. Chard, 4 Dr. 673 ; Thomson v. Eastwood, L. R. 
 2 App. Ca. 216, 241. 
 
 In the case of an infant bringing an action to have pos- Profits of 
 session of the estate, and an account of mesne profits, the J^^^°*^ 
 account will be decreed from the time when the infant's 
 title accrued : Dormer v. Fortescue, 3 Atk. 124 ; Blom- 
 field V. Eyre, 8 Bea. 250 ; Nanney v. Williams, 22 Bea. 
 452 ; Schroder v. Schroder, Kay, 591 ; Hicks v. Sallitt, 3 
 D. M. & G. 782, 812 ; Pascoe v. Swan, 27 Bea. 508. 
 
 The right to call for an account will be available against Mesne 
 the representatives of the person who has been wrongfully fgamst 
 in possession : Monypenny v. Bristow, 2 R. & M. 135 ; lepreseuta- 
 Woodhouse v. Woodhouse, 8 Eq. 514 ; so also where the 
 possession had been taken under a mistake of law ; Gar- ^f^y^^ 
 diner v. Fell, 1 J. & W. 22. 
 
 T 2 
 
CHAPTEE XLI. 
 
 Unautlior- 
 
 vestment. 
 
 Non- 
 invest- 
 ment. 
 
 Non- 
 invest- 
 ment by 
 solicitor- 
 trustee. 
 
 SPECIFIC RELIEF FOR BREACH OF TRUST — JOINT AND 
 SEVERAL LIABILITY — EFFECT OF CONCURRENCE AND 
 ACQUIESCENCE. 
 
 In the foregoing chapters numerous instances of breach 
 of trust are noticed, together with the appropriate reme- 
 dies in some of such cases — remedies which necessarily 
 vary according to the particular circumstances of each 
 transaction. In the present chapter will be found some 
 of the more salient points with regard to the decree 
 obtainable by a cestui que trust against his trustee, the 
 extent of the trustee's liability, and the effect of concur- 
 rence in, or adoption of breaches of trust, by the cestui 
 que trust himself 
 
 A trustee who commits a breach of trust by investing 
 on mortgage instead of in consols, is liable to make good 
 the amount of stock which would have been purchased in 
 consols, together with the amount of accumulation which 
 would have been produced by a proper investment of the 
 dividends in such stock : Pnde v. FooJcs, 2 Bea. 430. 
 
 Where an executor with a trust to invest a legacy re- 
 tains it, and pays interest on it to the cestui que trust, he 
 must purchase so much stock as the amount of the legacy 
 would have bought when he first had sufficient assets in 
 his hands to have made the investment according to the 
 trust : Byrcliall v. Bradford, 6 Madd. 235. See the 
 Order, p. 241. 
 
 Where trust money was sent to one of a firm of solici- 
 tors who was himself one of the trustees, for investment 
 on mortgage, and the money after having been placed to 
 
SPECIFIC RELIEF FOR BREACH OF TRUST. 325 
 
 the credit of the firm at their bankers', was drawn out by 
 the trustee and never invested, his partner was held to be 
 personally liable for the money : Eager v. Barnes, 31 Bea. 
 579 ; the trustee having died, the debt was ordered to be 
 proved against his estate, his partner, on payment by him, 
 taking the benefit of such proof ; and see Long v. Hay, 
 W. N. 1871, 134. As to the general liability of a solicitor 
 for the receipt of money by his partner in the ordinary 
 course of business, see Bourdillon v. Roche, 27 L. J. Ch. 
 681, and the cases there cited ; Sawyer v. Goodwin, 16 
 L. T. N. S. 514. 
 
 Trustees are liable to make good the whole loss caused Neglect to 
 by their neglect to enforce the transfer of a sum of stock ^ebts?' 
 forming part of the wife's property, covenanted to be 
 settled by a marriage settlement, their default enabling 
 the husband to obtain and misapply the fund : Fenwich 
 V. Greenwell, 10 Bea. 412; Caffrey v. Barby, 6 Ves. 488; 
 Maitland v. Bateman, cited, 10 Bea. 415. 
 
 But this may not be the case where the husband is Where 
 evidently in insolvent circumstances : Hobday v. Peters, i^oiyent. 
 28 Bea. 603. 
 
 So also where a trustee whose co-trustee had been a Leaving 
 partner with the testator, allowed him to retain and lose ™^g^ "^ 
 the estate in the trade, he was, with his co-trustee, de- 
 clared liable to account personally for the loss : Booth v. 
 Booth, 1 Bea. 125. 
 
 As to the liability of trustees who omit to get in and 
 convert within a reasonable time, whereby a loss is caused 
 to the tnist estate, see ante, p. 87 et seq. 
 
 " If a partner, being a trustee, improperly employs the Kecovering 
 money of his cestui que trust in the partnership business, fom^^ ""^ 
 or in payment of the partnership debts, this alone is not '^^^'^ l«°*- 
 sufficient to entitle the cestui que trust to obtain repay- 
 ment of his money from the firm" : Lindley, p. 311 ; 
 Exp. Apsey, 3 B. C. C. 265. 
 
 The knowledge of the partners who are not trustees, 
 must be proved : Exp. Heaton, Buck, 386 ; Exp. Barne- 
 wall, 6 D. M. & G. 801. 
 
3i6 SPECIFIC EELIBF FOR BREACH OF TRUST. 
 
 But if the trust money can be traced by the cestui que 
 trust into the hands of the firm, he can claim it against 
 them on the principles stated ante, p. 299 et seq. 
 
 If partners are implicated in a breach of trust, then- 
 liability is joint and several : Devaynes v. Nohle, 1 Mer. 
 563, 614 ; Imperial Mercantile Assoc, v. Coleman, L. R. 
 6 H. L. 189. 
 
 When trustees lend money to a firm which becomes 
 bankrupt, they cannot obtain an account of profits 
 realised with the money, nor charge more than ordinary 
 interest upon it : Stroud v. Gwyer, 28 Bea. 130. 
 Neglect to Where by a marriage settlement a husband assigned a 
 '^oilc"^ policy to trustees, and covenanted to keep it up, the 
 trustees, not having any power or duty to keep up the 
 policy, and not having any funds available for that pur- 
 pose, were not charged with the loss arising by the hus- 
 band failing to keep up the policy : Hobday v. Peters, 
 28 Bea. 60-3 ; secus, where there is a trust to keep up the 
 policy : Marriott v. Kinnersley, Taml. 470, 474. 
 
 And " if the trustee have no funds to keep up the 
 policy, he may do, and, in my opinion, it is his duty to do, 
 what he can to obtain money for the purpose of paying 
 the premium, and a lien on the policy will then be ob- 
 tained because the trustee has no money applicable for 
 the purpose, and he really does what is best for the cestui 
 que trust, in obtaining money for that purpose. There- 
 fore the cestui que trust, having the benefit of that ad- 
 vance, cannot make the trustee pay personally that of 
 which he has received the benefit. But if the cestui que 
 trust supply funds, or if the trustee, by duly performing 
 his trust ought to be in possession of funds applicable to 
 that purpose, then he acquires no lien on the policy, and 
 cannot confer one on another": Clack v. Holland,!^ Bea. 
 262, per Lord Eomilly, at p. 276. 
 
 But a mere stranger, by paying premiums on a policy, 
 cannot acquire a lien upon it. He can only acquire a lien 
 by some contract with the persons beneficially interested 
 in it, or with the trustee where the trustee himself might 
 
SPECIFIC EELIEF FOE BREACH OP TRUST. 337 
 
 have obtained a lien : Ibid. ; Re Layton, W. N. 1873, 
 49 ; and see Burridge v. Row, 1 Y. & C. C. C. 18.3, 583 ; 
 PmJcett V. Wright, 2 Hare, 120, 12 CI. & F. 764. 
 
 The lien of the trustee who has advanced money to pay- 
 premiums is enforceable by sale by order of the Court: 
 Hill V. Trenery, 23 Bea. 16. 
 
 Or if the husband who has covenanted to pay the 
 premiums becomes insolvent, the Court will allow the 
 trustees to take the surrender-value of the policy : Beres- 
 ford V. Beresford, 23 Bea. 292. 
 
 When there are two separate funds subject to trusts, and Improve- 
 the trustees commit a breach of trust as to one, by which gj^gj, p^^^ 
 it is lost, they are not allowed to say that they have im- °i estate 
 
 1 ^° excuse. 
 
 proved the other fund, and that that lund is bound to 
 make up the loss on the other. If trustees lose one part 
 of the settled funds, they must answer for it, whatever may 
 be the improvement of the other fund : Wiles v. Greshmn, 
 2 Dr. 2.58, 271. 
 
 And trustees were ordered to make good payments of Oyer-pay- 
 income to a tenant for life on securities which might tenant for 
 have been converted, so far as they exceeded the dividends i**^- 
 of the stock which ought to have been purchased, though 
 the proceeds of the unauthorised security turned out to 
 be larger than the amount of such stock if so purchased : 
 Dimes v. Scott, 4 Euss.^ 195, 207. 
 
 But where, in taking the account, the trustees were Where 
 debited with the cash and not the investment, iipon which allowed. 
 a profit arose, they were allowed the benefit of such profit : 
 Fletcher v. Green, 33 Bea. 426. 
 
 In accounting for a breach of trust, trustees are re- Trustees 
 
 garded as mere stakeholders, and cannot be affected with on^^with 
 
 more than they have actually received without wilful de- ■what they 
 
 fault: Pybus v. Smith, 1 Ves. Jun. 193; and even then the ceived. 
 
 proof must be very strong : Palmer v. Jones, 1 Vern. 144, 
 
 in which the Lord Keeper declared that " he would never 
 
 charge a trustee with imaginary values ; but that he 
 
 should be charged as a bailiff only." 
 
 The rule of the Court has always been and still is, that Wilful 
 
 default. 
 
328 WILFUL DEFAULT — LIABILITY OF KEPEESENTATIVES. 
 
 the plaintiff must aver and prove at least one act of wilful 
 neglect or default in order to obtain a decree directing an 
 inquiry as to wilful neglect or default : Coope v. Carter, 2 
 D. M. & G. 292, 297 ; Sleight v. Lawson, 3 K. & J. 292 ; 
 Massey v. Massey, 2 J. & H. 728 ; King v. CorJce, 1 Ch. 
 D. 57. 
 
 The duty of the plaintiff cestui que trust is to point out 
 and fix on any item he pleases and adduce proper evidence 
 to show that, but for the wilful neglect or default of the 
 defendant, it might have been received : Sleight v. Lawson, 
 supra, in which Coope v. Garter, supra, so far as it ap- 
 pears to be at variance with the above general rule, is ex- 
 plained. 
 
 Qn further directions, upon the ground that, in taking 
 the accounts ijnder a common administration decree, a case 
 of possible wilful default might be established, it is not the 
 course of the Court to give an inquiry as to wilful default : 
 Coope V. Carter, supra; Re Fryer, 3 K. & J. 318 ; Part- 
 ington V. Reynolds, 4 Dr. 253 ; but see Brooker v. 
 Brooker, 3 Sm. & G. 475, in which such an inquiry was 
 added to the decree ; and see Tickner v. Smith, 3 Sm. & 
 G. 42. 
 
 Nor will the decree be added to by directing payment 
 with compound interest: Nelson v. Booth, 3 D. & J. 119. 
 
 Leave to amend the statement of claim, after issue 
 joined, in order to supply an allegation of an act of wilful 
 default according to the rule, was given to a plaintiff, but 
 upon the terms of not entering into new evidence : King 
 V. CorJce, 1 Ch. D. 57. 
 Trustees Where trustees have been guilty of previous negligence 
 
 uftimatr ^ ^°^ securing the trust property, by obtaining a decision 
 conse- of a question of law, however doubtful, they are not ex- 
 cused on the ground that the loss has ultimately happened 
 by something that is not a direct and immediate con- 
 sequence of their negligence ; and if after such previous 
 negligence the loss happen by fire, lightning or any other 
 accident, that would not be an excuse for them, as being 
 their fault : Caffrey v. Da7^by, 6 Yes. 488, 496. 
 
 quences. 
 
LIABILITY OF REPEESENTATIVES. 329 
 
 Thus, if trustees have, without authority, procured and 
 accepted in lieu of so much stock an unauthorised hut 
 ample security for so much money, they -will be responsible 
 for any future loss traceable to that first error : Fyler 
 V. Fyler, 3 Bea. 550; Kellaway v. Johnson, 5 Bea. 
 319. 
 
 The representatives of a trustee are liable to the extent Liability of 
 of his assets for the consequences of his breach of trust : y^gg 
 Devaynes v. Robinson, 24 Bea. 86. 
 
 If a trustee commit a breach of trust, and the conse- Conse- 
 quences of it do not occur until after his death, his estate ^reach^of 
 is liable though, if redress had been sought in respect of trust aris- 
 that breach of trust, it was reparable in his Jiietime : death of 
 Devaynes v. Robinson, 24 Bea. 95. *™^'^^- 
 
 And this is true as well in the case of wilful default as 
 of an active breach of trust : Ibid. 
 
 Thus, if a debt is allowed to remain outstanding during 
 a long period, during which the debtor was solvent, if 
 shortly after the death of the trustee the debtor becomes 
 insolvent, the estate of the trustees would still be liable : 
 Ibid. 96. 
 
 So, if trustees who ought to invest money leave it in 
 their names in a bank, the estate of one of the trustees 
 who dies is liable to refund it, if the other misapplies it, 
 even after his death, unless it can be shown by his re- 
 presentatives that the retaining the money in the bank 
 was justified by necessity or otherwise : Gibbins v. Taylor, 
 22 Bea. 344. 
 
 The administrator of a sole trustee who has died Ketainer 
 insolvent and a debtor to the trust estate is entitled tratoror^ 
 to, and at the request of the cestui que truest is bound to, defaulting 
 exercise his legal right of retainer in order to recoup the 
 trust estate : Sander v. Heathfield, 19 Eq. 21. 
 
 And the cestuis que trust can sue not only the repre- Liability 
 sentatives of the trustee, but may follow the assets into the leg^ees. 
 hands of a paid legatee under the trustee's will : Gillespie 
 V. Alexander, 3 Russ. 130 ; Greig v. Somerville, 1 R. & 
 My. 338 ; March v. Russell, 3 M. & Cr. 31 ; Davies v. 
 
330 
 
 TRUSTEE NOT BENEFITED — EQUAL LIABILITY, 
 
 BeBefit 
 derived by 
 trustee not 
 inquired 
 into. 
 
 Trustees 
 equally 
 liable : 
 
 Thougli one 
 
 never 
 
 acted. 
 
 Bank- 
 ruptcy. 
 
 Action 
 against 
 one of 
 s 3veral 
 trustees. 
 
 Nicolson, 2 D. & J. 693 ; Bilkes v. Broadmead, 2 D. F. & 
 J. 566 ; Mdgway v. JSTewstead, 3 D. F. & J. 474. 
 
 It is the constant rule of Courts of Equity to charge 
 persons in the character of trustees with the consequences 
 of a breach of trust, and to charge their representatives 
 also, whether they derive benefit from the breach of trust 
 or not : Adair v, Shaw, 1 Sch. & Lef 243, 272 ; Montford 
 V. Cadogan, 17 Ves. 485, 48.9. 
 
 It is upon this principle that, where there are two 
 trustees, and one does not receive the money, but acts in 
 such a way as mates him liable for the acts of the other, 
 that liabihty is enforced against him : Scurfield v. Howes, 
 3 B. C. C. 91. 
 
 The Court in effect does not enquire into the particular 
 benefit that has been made, but fastens upon the party an 
 obligation to make good the situation of the cestui que 
 trust: Dornford v. Dornford, 12 Ves. 127. 
 
 All parties to a breach of trust are equally liable ; thei-e 
 is between them no primary liability : Wilson v. Moore, 1 
 M. & K. 126, 146. And when several trustees are involved 
 in one common breach of trust, a cestui que trust suffering 
 from that breach, and proving that the transaction was 
 neither authorised nor adopted by him, may proceed 
 against either or all of the trustees : Walker v. Symonds, 
 3 Swans. 1, 75 ; Attorney-General v. Wilson, Cr. & Ph. 
 1, 28 ; Fletcher v. Green, 33 Bea. 426, 429. 
 
 And this is the case, though the plaintiffs do not seek 
 to charge one of the trustees, who moreover they allege 
 never to have acted in the trust : Taylor v. Tabrum, 6 
 Sim. 281. 
 
 The right being joint and several, the estate of one of the 
 trustees who becomes bankrupt is subject to proof for the 
 breach of trust : Exp. Norris, 4 Ch. 280 ; see ante, p. 220. 
 
 If the action is for breach of trust only, all or any of the 
 parties may be sued without joining the others (subject to 
 the right of the defendant to bring in, by notice, his co- 
 trustee under Order XVI. r. 13) : Plumer v. G)'egory, 
 18 Eq. 627. 
 
JOINT AND SEVERAL LIABILITY — CONTRIBUTION. 331 
 
 Where two sets of trustees had committed a breach of Suing one. 
 trust, it was held that one set could be sued without of trustees. 
 making the other set parties to the action : McGachen v. 
 Dew, 15 Bea. 84. 
 
 The joint and several liability for breach of trust is of Speciiil 
 course subject to any special arrangement under the terms ^entas to 
 of the trust whereby the custody of the property is appor- liability. 
 tioned between the trustees : Birls v. Betty, 6 Madd. 90 ; Form of 
 but whether the plaintiff intends to recover the entire loss 
 against one of the trustees, or equal parts against both, 
 the order goes against both for the whole : Rehden v. 
 Wesley, 29 Bea. 213, 215. 
 
 If one or more of several trustees pay the whole amount Contribu- 
 decreed to be paid in an action for breach of trust, a case i'™ ^^' 
 
 J^ _ _ ' tween 
 
 for contribution by those who have not paid arises ; and trustees. 
 previous to the Judicature Act such contribution could not 
 be had but in a new suit for the purpose : Fletcher v. Green, 
 33 Bea. 513, 515 ; Goppard v. Allen, 2 D. J. & Sm. 173, 
 182 ; but by rule 13 of Order XVI., which is to be read 
 with sub-sect. 3 of s. 24 of the Judicature Act, 1873, this 
 remedy Over against co-trustees would, it seems, now be 
 triable, if not enforceable, in the same action. But by rule 
 5 of the same Order, " the plaintiff may at his option join 
 as parties to the same action all or any of the persons 
 severally, or jointly and severally, liable on any one 
 contract, including parties to bills of exchange and 
 promissory notes." And if it were held that this rule did 
 not touch the joint and several liability of trustees, the 
 2nd rule of the 7th Consolidated Order would still apply : 
 namely, "that where the plaintiff has a joint and several 
 demand against several persons, either as principals or 
 sureties, it shall not be necessary to bring before the Court 
 as parties to a suit concerning such demand all the persons 
 liable thereto ; but the plaintiff may proceed against one 
 or more of the persons severally liable." Upon this rule 
 it is held that it applies to a joint and several demand 
 against trustees, but that where the case is not one of 
 breach of trust merely, but a general account is also 
 
33£ 
 
 CONTRIBUTION BETWEEN TRUSTEES. 
 
 Contribu- 
 tion to 
 costs paid. 
 
 No equity 
 for in- 
 demnity 
 tetween 
 co-trustees 
 ■where no 
 breach of 
 trust. 
 
 iSecus, 
 where 
 breach of 
 trust, 
 though 
 plaintiff 
 wrong- 
 doer. 
 
 Cestuis 
 que trust 
 need not be 
 parties. 
 
 Indemnity 
 by stranger 
 benefited 
 by breach. 
 
 Nature of 
 debt 
 created by 
 
 sought, the rule does not dispense with the necessity of all 
 the trustees being represented in the action : Goppard v. 
 Allen, 2 D. J. & Sm. 173, 181. 
 
 The right of a trustee, who has paid what is found due 
 for a breach of trust to be recouped by his co-trustee, 
 extends to a sum of costs allowed to his co-trustee, and 
 such costs will for that purpose be carried to a separate 
 account, with liberty to apply : BirJcs v. Micklethwait, 33 
 Bea. 409. 
 
 There is no equity by which one trustee can obtain, by 
 an action against his co-trustee, an indemnity in respect 
 of a security taken by the trustees upon property formerly 
 belonging to the co-trustee, who thereupon receives pay- 
 ment for it from the mortgagor ; for there is no breach 
 of trust in such a transaction, and the Court will not go 
 into remote consequences for the purpose of sustaining such 
 a case : Butler v. Butler, 7 Ch. D. 116. 
 
 If, however, there has been a breach of trust by both 
 trustees, it is competent for one of them to bring an action, 
 though he be a wrongdoer, to compel the other to refund 
 his share of the loss : Baynard v. Woolley, 20 Bea. 583, 
 and the cases in note (g), p. 585. 
 
 As a general rule, in an action by a trustee for contribu- 
 tion by his co-trustees, it is not necessary to make the 
 cestuis que trust, qud cestuis que trust, parties to the 
 action, yet anybody, whether he is a cestui que trust or a 
 stranger, who has received the trust property and been 
 guilty of breach of trust, must be made a party : Jesse 
 V. Bennett, 6 D. M. & G. 609. 
 
 A person who, not being a trustee, has induced the 
 trustees to commit trust-money to him on loan or other- 
 wise, is liable to indemnify the trustees if made liable for 
 the consequences of their breach of trust : Greenford v. 
 Wakeford, 1 Bea. 576 ; Fyler v. Fyler, 3 Bea. 550. As to 
 the case where such person is also a cestui que trust, see 
 post, p. 333. 
 
 As between trustee and cestui que trust the debt 
 created by a breach of trust is either a simple contract 
 
CONTRIBUTION — CONCURRENCE OF CESTUI QUE TRUST. 333 
 
 debt or a specialty debt, according as the trustee has bound breach of 
 himself by a specialty in words expressly constituting *™^*' 
 a covenant, or construed as intended to constitute a cove- 
 nant : Adey v. Arnold, 2 D. M. & G. 432 ; Wynch v. 
 Ch^ant, 2 Dr. 312 ; Newport v. Bryan, 5 Ir. Ch. R. 119 ; 
 Isaacson v. Harivood, 3 Ch. 225 ; Holland v. Holland, 4 
 Ch. 449 ; Ee Dickson, 12 Eq. 154 ; and see Wood v. 
 Hardisiy, 2 Coll. 542 ; Courtney v. Taylor, 7 Scott, N. R. 
 749 ; 6 Man. & Gr. 851; Marry at v. Marryat, 28 Bea. 
 224. 
 
 But the debt constituted by the rie-ht of contribution As between 
 between trustees, one of whom has paid the whole loss, '^^^ ^^^' 
 is per se a simple contract debt only: Priestman v. 
 Tindall, 24 Bea. 244 ; LocJchart v. Reilly, 1 D. & J. 464, 
 except so far as it is constituted a specialty debt by s. 5 
 of the Mercantile Law Amendment Act (19 & 20 Vict. c. 
 97). Where, however, the claim is against the estate of 
 a deceased trustee, the Act of 32 & 33 Vict. c. 46, which ' 
 has destroyed the priority of specialty debts provable 
 against estates of deceased persons, has in such cases 
 rendered it immaterial whether the debt was by specialty 
 or not. 
 
 It is established by all the cases that if the cestui que Concur- 
 trust ioins with the trustee in that which is a breach of '^^°'='^.°f 
 
 •> _ _ cestui que 
 
 trust, knowing the circumstances, such a cestui que trust can trust in 
 never complain of such a breach of trust ; but the Court ^^ust • 
 must inquire into the circumstances which induced con- inqviiry. 
 currence or acquiescence : Walker v. Symonds, 3 Swans. 1 
 64 ; Fyler v. Fyler, 3 Bea. 550, 569 ; and see Butler v. 
 Garter, 5 Eq. 276. 
 
 Thus, where a trustee, on his retirement, a,ssigns the inquiry as 
 trust fund contrary to the terms of his trust to the *o^ssent 
 
 •' . . to breach 
 
 continuing trustee alone, who misapplies it, both he and of trust. 
 the continuing trustee are liable, but the Court directs 
 an inquiry whether any and which of the parties in- 
 terested in the fund have consented to or approved of the 
 transfer, or the sale by the continuing trustee : Wilkinson 
 v. Parry, 4 Russ. 272. 
 
334 
 
 CONOUERENCE AND ACQUIESCENCE. 
 
 Knowledge 
 necessary 
 to fix con- 
 curring 
 beneficiary. 
 
 Not where 
 assent is 
 by person 
 not sui 
 jicyis. 
 
 Feme 
 coixrte. 
 
 Infancy. 
 
 Where 
 cestui que 
 trust re- 
 ceives 
 benefit. 
 
 Acquies- 
 cence. 
 
 It must be shown that the cestui que trust was at least 
 cognisant of the breacli of trust in order to deprive him of 
 his right against the trustees : Buckeridge v. Glasse, Cr. 
 & Ph. 126-, 135 ; and see Ryder v. Bickerton, 3 Swans. 83 n. 
 
 No such inquiry will be directed in the case of a married 
 woman, who, though consenting, is restrained from anti- 
 cipation, and is, moreover, directed by the settlement to 
 consent to an act which, without such consent, the trustees 
 could not, without a breach of trust, perform : Cocker v. 
 Quayle, 1 E. & My. 535. 
 
 The knowledge or consent of a husband cannot bind a 
 married woman : Underwood v. Stevens, 1 Mer. 712, 717 ; 
 Montford v. Cadogan, 19 Ves. 633, 639 ; Cressvjell v. 
 Dewell, 4 Giff. 460, 465. 
 
 As to the liability of a married woman having separate 
 estate to answer for a breach of trust, see ante, p. 265. 
 
 Where the feme coverte has separate property, that pro- 
 perty is bound by her acquiescence in a breach of trust, 
 unless she is restrained from anticipation : Kellaway v. 
 Johnson, 5 Bea. 319. 
 
 Parties under disability, such as infants, cannot of course 
 be taken to have concurred in a breach of trust : Wilkinson 
 v. Parry, 4 Russ. 272. 
 
 A person who has actually received the money arising 
 from the breach of trust in which he has concurred, 
 cannot afterwards, under his title as cestui que tnist or 
 otherwise, obtain the repayment of it : Nail v. Punter, 
 5 Sim. 555 ; Jqcuhs v. Rylance, 17 Eq. 341. 
 
 Acquiescence or adoption by a cestui que trust, having 
 a knowledge of the breach of trust, but assenting to it, or 
 taking no steps to obtain redress for a long lapse of time, 
 releases the trustee and bars the cestui que trust from 
 afterwards complaining of that breach of trust, of which 
 he often has enjoyed the benefit during that time : Price 
 V. Stokes, 11 Ves. 324 ; Wcdker v. Symonds, 3 Sw. 1, 64, 
 75 ; Thompson v. Finch, 22 Bea. 316, 324 ; O-rijffiths v. 
 Porter, 25 Bea. 236 ; Farrant v. Blanchford, 1 D. J. & 
 Sm. 107 ; Sleeman v. Wilson, 13 Eq. 36. 
 
ACQUIESCENCE — IMPOUNDING INTERESTS. 335 
 
 As to the extent of acquiescence which will constitute 
 a bar, see supra, p. 316 et seq. 
 
 A tenant for life joining in a breach of trust is answer- rrimary 
 able in the first instance : Moniford v. Cadogan, 19 Ves. ^^'^^^lli°l 
 
 638. beneficiary. 
 
 Where cestuis que trust for life have induced trustees, in Extent of 
 breach of their trust, to invest in a_higher paying dividend '^ " ^" 
 than their trust or the rules of the Court permit, as the 
 loss which ought to fall on those who instigated the breach 
 of trust is laid by the Court upon the trustees, the trustees 
 are entitled to stand in the place of the cestuis que trust 
 in remainder to recover what has been actually received 
 by the tenants for life, but to the extent only of the sur- 
 plus income actually received by them : Raby v. Ridehalgh, 
 7 D. M. & G. 104. 
 
 And, therefore, if no benefit has been derived by the 
 cestui que trust thus implicated, no right of indemnity 
 exists as against him : Walsham v. Stainton, 1 H. & M. 
 322, 337. 
 
 Trustees have a right to stop the receipt of dividends Impound- 
 by a person having a partial interest in the trust estate, of^concur-^ 
 and who has induced the trustees to commit a breach of ""s beue- 
 trust : Goclcer v. Quayle, 1 R. & My. 538 ; Lincoln v. 
 Wriglit, 4 Bea. 427; McGachen v. Dew, 15 Bea. 84; 
 Vaughton v. Noble, 30 Bea. 34, 39. 
 
 And a trustee cannot waive, or, by bargain for his own Right to 
 benefit with the person whose interest is liable to assist in ^Qn^^jJe 
 repairing the breach of trust, destroy the security of that waived, 
 interest as a source of reparation to the cestui que trust : 
 Fuller V. Knight, 6 Bea. 205. 
 
 The beneficial interest of a trustee is also liable to be Impoimd- 
 impounded ; and assignees and incumbrancers, not being in e^fi'l^'!^'^' 
 the position of purchasers for value without notice, of the t^i^^st of 
 interest of a trustee liable to be impounded for his breach 
 of trust, take their title subject to the equity of the cestuis 
 que trust to impound the interest assigned : Priddy v. 
 Rose, 3 Mer. 86 ; Morris v. Livie, 1 Y. & C. C. C. 380 ; 
 Cole v. Muddle, 10 Hare, 186 ; but see British Mutual 
 
336 
 
 IMPOUNDING INTERESTS — RELEASE. 
 
 Annuity. 
 
 Income. 
 Interest. 
 
 Legal life 
 estate can- 
 not be im- 
 pounded. 
 
 Defaulting 
 trustee 
 entitled to 
 trust fund. 
 
 Release. 
 
 Infan's. 
 
 Co. V. Smart, 10 Ch. 567 ; especially after notice of pro- 
 ceedings to enforce that equity : Irhy v. Irhy, 25 Bea. 
 632. 
 
 If the interest of the trustee is an annuity, it may be 
 stopped until the amount is recouped : Sldnner v. Sweet, 
 3 Madd. 244. 
 
 In other cases the income is ordered to be accumulated 
 until the debt is paid : Exp. King, 2 Mont. & A. 410. 
 
 It seems that, as the liability is in the nature of tort, 
 no interest can be charged : Prime v. Savell, W. N. 1867, 
 227. 
 
 The legal life estate of a trustee is not liable to be 
 impounded to answer a breach of trust with regard to other 
 parts of the property as to which he is a trustee only : 
 Egbert v. Butter, 21 Bea. 560 ; Fox v. Buckley, 3 Ch. D. 
 508 ; and see Exp. Barff, De G. 613. 
 
 A defaulting trustee who becomes entitled, as next 
 of kin of a deceased cestui que trust, to a share not 
 exceeding the amount of his debt to the estate, is not 
 entitled to retain his share as such next of kin, but is 
 regarded as having paid himself anything which could be 
 due on that account; Jacubs v. Rylance, 17 Eq. 341. 
 
 Where a breach of trust has been committed, from 
 which a trustee alleges that he has been released, it is 
 incumbent on him to show that such release was given 
 by the cestui que trust deliberately and advisedly, with 
 full knowledge of all the circumstances, and of his own 
 rights and claims against the trustee : Life Association 
 V. Siddal, 3 D. F. & J. 74 ; Warrant v. Blanchford, 1 D. J. 
 & Sm. 119. 
 
 A release from a breach of trust cannot be given by an 
 infant ; and if the breach of trust have been committed 
 during the infancy, a release on attaining majority without 
 a knowledge of all the facts would not be binding (Walker 
 V. Symonds, 3 Sw. 1, 69) ; but if such knowledge be in 
 the possession of the person so situated, his release will 
 be a good discharge : Aveline v. Melhuish, 2 D. J. & Sm 
 288, 
 
RELEASE — COSTS. 387 
 
 That a married woman may give a release to her trus- Married 
 tees in respect of breaches of trnst by them with regard "''""^"• 
 to her separate estate, and, so far as she is restrained from 
 anticipation, so that her release does not affect future in- 
 come, may be gathered from the statement of the law 
 relating to the separate estate : ante, p. 257 et seq. 
 
 Where an action is brought against trustees for a breach Costs. 
 of trust, the decree against them is usually made with 
 costs : Byrne v. Norcott, 13 Bea. 336, 346. And see gene- 
 rally as to costs of and against trustees, Morgan & Davey, 
 pp. 288 et seq. 
 
 The order for costs against trustees guilty of a breach Order for 
 
 ° O ./ costs IS 
 
 of trust is made agaicst all of them, on the ground that against all 
 the question is not whether one of the defendants is more *'"'' ^^^' 
 culpable than the other, but whether the cestui que trust 
 is to be deprived of the double security which a decree for 
 costs against all the parties would give him : Lawrence v. 
 Boxvle, 2 Ph. 140 ; and see Littlehales v. Gascoyne, 3 B. 
 C. C. 73. 
 
 But cestuis que trust who have concurred in the breach Costs pay- 
 of trust are primarily liable for the costs : Eaves v. Hick- '"^^^gtitis^^^ie 
 son, 30 Bea. 136. *?•"«*• 
 
 A trustee who has committed a breach of trust may be Costs 
 allowed the costs, as between solicitor and client, of an i^™^;.! of 
 action for the general administration of the estate, though trust. 
 he may be ordei-ed to pay the costs so far as they were 
 occasioned by the breach of trust : Pride v. Fooks, 2 Bea. 
 430. 
 
INDEX. 
 
 Abatement 
 
 of portions, where estate insufficient, 165 
 
 Ability 
 
 of father to maintain, [see Maintenanoe] 
 
 Abroad, [see Jurisdiction] 
 
 trustee, new trustees appointed, when, 210 
 receipt from legatee, petition for advice as to, 109 
 creditors, execution of trust deed by, time for, 38 
 absence of one of trustees, no ground for receiver, 273 
 of sole trustee, receiver on, ib. 
 
 Absence, [see Abroad] 
 
 Abstract 
 
 to be demanded on re-advancing money, 142 
 
 Acceleration 
 
 of sale, [see Sales by Trustees] 
 
 Acceptance 
 
 of trust, 12—14 
 
 presumed till contrary proved, 11, 12 
 
 execution, of deed not necessary for, 12 
 
 by executor upon trust, 13 
 
 by trustee under different trust, 13 
 
 proviso that all assenting trustees shall execute, 13 
 
 by acquiescence, 13 
 
 parol evidence to prove, 13 
 
 by conduct, 13, 14 
 
 acting as agent for other trustees is not, 14 
 holding trust deed for safe custody, is not, 14 
 
 by effect of recitals, 14 
 
 z 2 
 
340 INDEX. 
 
 Acceptance — continued. 
 
 by person improperl}' appointed, 14 
 
 by devisee of trust estates which do not pass, is bound 
 
 by, 14 
 effect of, 14 
 
 refusal of, without payment, 200 
 under seal, no distinction as to breach of trust, by, 14 
 of secret trust, by silence or conduct, 80 
 
 Accident, 
 
 failure of trust by, Court prevents, 103 
 
 Account, [see Accounts ; Bank ; Bankee ; Following Trust 
 Estate] 
 
 at bank, trust money should be paid in to what, 99 
 private account, not to trustee's, ih. 
 earmarking, ih. 
 mesne profits, of, [see Statute of Limitations] 
 
 Accountant, 
 
 charges of, trustees may charge, 201 
 
 Accounts, 
 
 trustees must be ready with, 228 
 
 blending of, with their own, 99, 228 
 
 or partners', ih. 
 co-trustees, keeping, ih. 
 inability or refusal to show, ih. 
 
 interest payable on, 285 
 costs of action to compel rendering, 228, 229, 317 
 special directions by Court as to, 229 
 old, when to be taken as correct, 229, 318 
 death of trustees, after, 317 
 continuing open, no bar where, ih, 
 destroying, 100 
 
 false, interest payable by trustees rendering, 285 
 decree for, though vouchers taken abroad by agent of 
 
 trustees, 18 
 intricacy of, whether ground for remuneration, 196 
 
 Acceetioks 
 
 of separate estate are separate estate, 252 
 [see Separate Estate] 
 
 Accruer, 
 
 tenant in common with, or without, general devise to, pre- 
 vents trust estates passing under it, 22 
 separate use attaches to share given by way of, 257 
 
INDEX. 341 
 
 Accumulation, 
 
 trust for, when against rule against perpetuities, 152 
 under Thellusson Act, 153 
 periods allowed for, ib. 
 
 exception of debts, portions, and timber-money, ib. 
 extended to Ireland, ih. 
 
 to Scotland, whether, ib. 
 one of periods mentioned only allowed, ib. 
 time runs from testator's death, ib. 
 during minority of unborn child not allowed, 154 
 void for excess only, ib. 
 
 though excess to meet contingencies, ib. 
 to pay premium on policy for life of another is 
 not a void, ib. 
 exception extends to future debts, ih. 
 debts, payment of, mode of, by reference to, 155 
 sales by Court for, ib. 
 sinking fund foi', ib. 
 " of some other person,'' ib. 
 portions charged or to be charged within s. 2, ib. 
 
 what, within section, 155, 156 
 of interest on portions, 167 
 right to excessive, 156 
 till investment, right to, 97, 147 
 maintenance out of, 175 
 
 under Cran worth's Act, 171 
 though direction for, 173 
 proof for, against bankrupt trustee, 219 
 interest against trustees for omission to make, 287 
 
 Acknowledgment, 
 
 keeps debt alive, when, 315 
 by one trustee, effect of, 316 
 husband's, of wife's separate use, 249 
 
 married woman's, of deed as to separate estate unnecessary, 258 
 on sale to trustees of trust estate, 184 
 
 Acquiescence, [see Statute op Limitations] 
 
 presumption of acceptance of trusts from, 13 
 
 of CO- trustee in sale, 114 
 
 in trust deed by creditors, 37 
 
 in breach of trust [see Bkeach op Tbust] 
 
 in wrongful acts for which trustee might be removed, 216 
 
 in purchase of trust estate by trustee, costs where, 193 
 
 [see Purchase op Trust Estate] 
 fraud prevents, during ignorance, 296 
 executor of deceased partner, where it binds, 76 
 bars remedy against constructive trust, 75, 307 
 
312 INDEX. 
 
 Acquiescence — continued. 
 
 married woman's, in dealings of husband as to separate 
 
 estate, 249 
 restraint on anticipation does not protect against, 268 
 
 Act [see Peivate Act; Bill] 
 
 Action 
 
 for administration where c. a. t. refuses to discharge trustee, 
 
 236 
 is discharge to trustee, 237 
 by c. q. t. in name of trustee, 279 
 accounts, where trustee refuses to furnish, 228 
 by trustee under creditor's deed, to get in assets, 41 
 by purchaser to compel trustees to convey, 224 
 to declare infant heir trustee for purchaser, 225 
 for contribution on joint purchase, 69 
 
 between trustees liable for breach of trust 
 [see Breach of Teust] 
 as to separate estate [see Sepaeatb Estate] 
 against solicitor, joining trustees in, 19 
 right kept alive by bringing, 316 
 sale after, should put purchaser on inquiry, 129 
 after, trustees may not sell without leave, 113 
 after, new trustees not to be appointed, 20o 
 
 injunction to restrain appointment of, 280 
 maintenance, power of, gone after, 174 
 title deeds, by remainderman for inspection of, 227 
 Court will not part with deeds, pending, 226 
 leave to bring or defend, 103 
 disclaimer by trustee after, 1 1 
 trustees defendants should not sever defence in, 16 
 except in special oases, ib. 
 what are special cases, ib. 
 costs where they sever, ib. 
 
 paid to innocent trustee, ih. 
 innocent trustee may sever defence in, ib. 
 trustee residing at a distance may sever defence, ib. 
 admission by trustee, payment into Court on, in [see Payment 
 
 into Couet] 
 by trustees, costs of, where all c. q. t.'s sui Juris, 102 
 
 [see Costs] 
 
 Administeation, [see Action] 
 
 action for, of lands abroad [see Foeeign Peopeett] 
 
 receiver, where appointed in action for, 272 
 
 to intestate legatees unnecessary when shares small, 234 
 
INDEX. 343 
 
 Administeator, 
 
 of surviving trustee, power of, to appoint new trustees, 203 
 cum test, aniiexo may exercise power of sale, where all trustees 
 
 disclaim, 12 
 renewal by, in his own name, 74 [see Constkuctive Trusts] 
 cannot buy estate, 185 
 
 of defaulting trustee must use right of retainer, 329 
 husband, rights of, as, where wife has separate estate, 251 
 of convict's property under 33 h 34 Vict., c. 23, 1 99, 243 
 
 Administrator General [see Commission] 
 
 Admission, 
 
 payment into Court, order for, on [see Payment into Court] 
 
 Adoption, 
 
 evidence of, 65 
 
 Adult, 
 
 advancement of [see Advancement] 
 maintenance of, 175 
 
 Adultery 
 
 does not deprive husband of life interest, 235 
 
 Advance 
 
 by portion under Statute of Distributions, s. 5, 180 
 
 of trust money on securities, all trustees must joiu in, 15 
 
 out of pocket, by trustees, lien for, 102 
 
 for improvements under 27 & 28 Vict, c. 114 
 
 [see Improvemekts] 
 
 Advancbmekt 
 
 power of, is a usual power in settlement, 50 
 survivorship of, 181 
 where unexercised, undertaken by Court, ib. 
 
 inquiry, ib. 
 loan to husband under, 138 
 where no power of, 178 
 
 sanction of Court to, 100, 178 
 [see Advice Petitions] 
 out of contingent interests, ib. 
 
 consent to, ib. 
 during minority, ib. 
 to adults, ib. 
 
 to pay debts, ib., 179 
 under what words, 178 
 pending preparation for profession, 179 
 settlement of fund for, ib. 
 to husband out of wife's fund, ib. 
 
 security in such case, ib. 
 
3i4 INDEX, 
 
 Advancement— coMiMMWfZ. 
 
 to wife, on husband's covenant for separate use, 179 
 to parent out of child's fund, ib. 
 
 to prevent parent's insolvency, ib. 
 to daughter on marriage, ib. 
 
 to preserve property by clearing arrears of rent, 179 
 for education, ib. 
 
 trust for, is a general legacy, ib. 
 what is, under Statute of Distributions, 160 
 failure of pui-pose of, ib. 
 
 by impossibility, ib. 
 neglect of trustee, ib. 
 death of child, ib. 
 destination of fund on, ib. 
 where both trustees to concur in, 181 
 breach of trust for, remedy for, ib. 
 excessive, how made up, ib. 
 out of portions [see Pohtions] 
 grant or lease to wife or child is presumed to be, GO 
 [see Resulting Trusts, 61 — 66] 
 
 Adverse Claim 
 
 by creditors against trust for creditors, 37, 41 
 
 Adverse Possession, 
 
 c. q. t.'s is not, to trustee, 314 
 
 one c. q. t.'s is not to other cs. q. t., 315 
 
 c. q. t. barred if trustee barred by, ib. 
 
 remedy of, ib. 
 curtesy barred by, when, 271 
 
 Advertisements 
 
 of sale by auction, by trustees, 113 
 
 Advice 
 
 separate, as to contract between trustee and c. q t. for remu- 
 neration, 201 
 
 Advice Petitions, 108 — 110 
 
 by trustees as to management of trust, 108 
 
 order on, effect of, ib. 
 
 rights not decided upon, ib. 
 
 construction of settlement not decided upon, ib. 
 
 no evidence allowed upon, 108, 109 
 
 where point of law on which cases conflicting, 108 
 
 definite question to be submitted, ib. 
 
 no inquiry directed, 109 
 
 fictitious case not entertained, ib. 
 questions determined on investment, ib. 
 
IKDEX. 345 
 
 Advice Petitions — continued. 
 
 in East India Stock, 109 
 Eailway Debentures, ib. 
 Foreign Securities, ib. 
 on apportionment of dividends, ib. 
 ground rents, ib. 
 re-building, ib. 
 powers of sale, ib. 
 consent to sale, 110 
 reserving biddings, 109 
 power of leasing, ib. 
 power of maintenance, ib. 
 
 and advancement, ib. 
 appointment of new trustees, ib. 
 
 colonial trustees, ib. 
 conversion of leaseholds, ib. 
 receipt from legatee abroad, 110 
 interest on legacies, ib. 
 liability on covenants, ib. 
 compromise, ib. 
 service of, ib. 
 practice on, ib. 
 
 Advowson, 
 
 purchase of, by trustees, 147 
 
 Agent 
 
 not acting strictly as agent, liable as trustee, 19, 241, 
 
 303, 309 
 constructive trustee, becomes, when, 72 
 acting in ordinary course of business, 241 
 person appointed trustee does not accept trust by acting as, 
 
 for other trustees, 14 
 executors need not obey testator's desire to continue, 55 
 executor acting as, cannot charge commission, 197 
 payment to co-trustee as, by trustees, 19 
 trustees need not take security from, 20 
 payments by, in ordinary course, 19 
 payment, premature, to, 100 
 
 proper, to, 100 
 to receive sale-moneys for trustees, should be appointed in 
 
 writing, 119 
 compulsory payment into Court by, 274 
 trustee bidding through, for purchase of trust estate, 182 
 buying trust estate for trustee by contract, ib. 
 trustee purchasing trust estate as, for stranger, ib. 
 taking conveyance to himself, 68 
 must not take lease of principal's land, 186 
 
346 INDEX. 
 
 A GENT — contin ued. 
 
 dealing for himself, 1 87 
 
 burden of proof, ib. 
 
 value, proof of, or, ih. 
 
 undue profit in, ih. 
 selling own goods to principal, ih. 
 purchasing from purchaser of principal's goods, ib. 
 following property into hands of, 299 
 of trustees abroad, liability to account where, 18 
 
 Agebement 
 
 for lease by married woman [see Separate Estate] 
 
 Alien 
 
 may hold any kind of property, 244 
 
 under trust before Act of 1870, subject to right of Crown, ih. 
 
 may be trustee, when, 312 
 
 Alienation, 
 
 effect of, on consent to be given by alienor, 119 
 trusts in restraint of, illegal, 84 
 
 over on, good, ib. 
 of separate estate \see Separate Estate] 
 
 Allowances, 
 
 to trustees, not permitted unless provided for, 196 — 202 
 though estate benefited, 196 
 under West Indian law, 199 
 consignee's lien, ib. 
 to mortgagee being auctioneer, of commission on sale, 197 
 for receiving rents, ib. 
 
 paying bills, &c., ih. 
 being solicitor, of profit costs, ib. 
 to solicitor-trustee of profit costs, 197 
 
 special circumstances, 198 
 inquiry as to, ih. 
 
 when enployed by co-trustees, 197 
 partner of, of full costs to, 197, 198 
 of costs against another client, 198 
 to bankruptcy trustee being a solicitor, 199 
 to agent being executor, of commission, 197 
 to hankers being trustees, of more than simple interest, 198 
 to guardians, of profits made, ih. 
 to committees, ih. 
 
 to inspectors of creditors' deeds for goods supplied, ih. 
 to surviving partner for trouble in winding-up, ih. 
 to mate of ship for money made with deceased captain's 
 
 money, 199 
 to administrator in Bengal, ih. 
 
INDEX. S47 
 
 Allowances — continued. 
 
 to administrator of convict's property under 33 <fc 34 Vict. 
 
 c. 23, s. 11, 199 
 provision made for, 199 
 
 does not cease when action brought, 200 
 
 by verbal agreement, ih. 
 
 extra allowances though, ih. 
 
 inquiry if amount not specified, ib. 
 
 auditor, for fees of, ih. 
 
 " liberty to charge for professional services," ih. 
 
 annuity to trustee for trouble, ib. 
 
 legacy to trustee annexed to office, ib. 
 
 no bar to remuneration, ib. 
 
 stipulation for remuneration before taking trust, ib. 
 contract as to, 201 
 
 c. q. t. must not be under pressure, ib. 
 separate advice as to, ib. 
 
 between solicitor-trustee and co-trustee executrix, ih. 
 
 between mortgagor and mortgagee, ib. 
 
 between solicitor-mortgagee and mortgagor, ib. 
 just allowances, 
 
 opinion of counsel, 201 
 
 taking directions, ib. 
 
 charges on sale, ib. 
 
 accountant's charges, ib. 
 
 rent- collector's charges, 202 
 
 getting in rents, ib. 
 
 recovery of, ib. 
 
 American "Stock [see Investment] 
 Annuitant, 
 
 with power of sale, can buy estate charged, when, 186 
 
 Annuity, 
 
 quantum of legal estate where trust to pay, 5 
 lasting after death of trustee requires legal fee, 7 
 devise to trustee where personalty unable to serve, ib. 
 charge of, gives power to give receipts, where [see Receipt 
 
 OF Trustee] 
 charged on Long Annuities, conversion where, 93 
 remain charged on renewed lease, 77 
 investment on [see Investment] 
 not proper consideration on sale for trustees, 119 
 purchase of, by receiver, 188 
 payment of sum to answer, to annuitant, 102 
 fund to answer, if not itself disposed of, results, 58 
 
 payment of, to annuitant, 102 
 arrears of, interest on, when payable by trustee, 284 
 to trustee for trouble on cesser of trust, 200 
 
348 INDEX. 
 
 Annuities, 
 
 terminable, to be sold as part of residue, when, 91 
 
 Anticipation, 
 
 restraint on [see Separate Estate] 
 
 where added in executory trust, 49 
 where Court makes executory life estate not sans 
 waste, ib. 
 
 Appeal, 
 
 costs of, by trustees, 230 
 
 Application, 
 
 seeing to, of purchase-money [see Receipt of Trustee] 
 
 Appointment, [see Power — Cestui que trust] 
 
 power of, to husband, may be inserted in settlement under 
 executory trust, 50 
 of portions [see Portions] 
 of doubtful validity, trustees acting on, 102 
 by letter in favour of volunteer, 31 
 of new trustees [see New Trustees] 
 
 Apportionment, 
 
 of dividends, 140 
 
 of stock sold for investment in land, 147 
 
 of costs where trustees sever defence, 16 
 
 of portions over several estates charged, 1 65 
 
 of price on joint sale by trustees and others, 117 
 
 where price paid into Court, ib. 
 of fines and expenses of renewal of lease [see Eenewal op 
 Leases] 
 
 Apprenticeship, 
 
 advancement for, 180 
 
 Appropriation, 
 
 of funds to trustee's account at banker's, 301 
 vale in Clayton's case, 301, 302 
 
 Arrears, 
 
 of separate estate [see Separate Estate] 
 
 liable for breach of trust, 266 
 of rent, release of, by trustees, 101 
 interest on, of annuity or income, when not given, 284 
 
 Assent, 
 
 to trust deed by creditors, 37 
 
 implied, 38 
 where trustee a creditor, ib. 
 
INDEX. 349 
 
 Assets, 
 
 admission of [see Payment into Court] 
 
 Assignee 
 
 of equitable interest, how secured, 234 
 refunding wrong payment by, 231 
 
 Assignment, 
 
 by one to himself and another under Lord St. Leonards' Act, 
 
 s. 21, 213 
 by continuing trustee to himself and new trustee, ib. 
 
 by one deed, ib. 
 of equitable estate [see Not[Ob], 213, 288 
 voluntary [see Voluntary Trusts] 
 
 upon trust for creditors unoommunicated and unacted upon, 
 
 40 
 to be acted upon at request of debtor, 
 41 
 
 [see Trusts foe Creditors] 
 of policy, neglect of trustees to give notice of, 89 
 
 Assigns, 
 
 devise to, permits devisee of trust estates to perform trusts, 23 
 not where " assigns " omitted, ib. 
 
 Attachment, 
 
 for non-payment of fund into Court after order, 276 
 Debtors' Act, 1869, does not abolish, ib. 
 
 order under, not made ex parte, 277 
 
 discretion as to under Debtors' Act, 1878, 
 
 ib. 
 by Irish Court, ib. 
 " fiduciary capacity " under, ib. 
 where money spent, ib. 
 poverty of trustee, ib. 
 non-acting trustee, liability of, ib. 
 wilful default not within, ib. 
 unascertained sum of interest, ib. 
 where trustee is bankrupt, 278 
 
 compounds, ib. 
 order before bankruptcy, where, ib. 
 
 Attainder, 
 
 no escheat or forfeiture on, for felony, 243 
 
 Attorney- General, 
 
 sanction of to criminal proceedings against trustees, 281 
 jurisdiction of, as to foreign charity, 246 
 
 A0CTION, 
 
 sale by, by trustees, 111 
 
350 INDEX. 
 
 Auction — continued. 
 
 particulars on, description of trustees in, 112 
 loss on sale by trustees, by, ib. 
 advertisements of, by trustees, ih. 
 reserve price at, fixed by trustees, ib. 
 buying in without, ih. 
 sale at, after abortive sale, ib. 
 to co-trustee, ih. 
 opening biddings, 112, 185 
 injunction against, where improper, 113 
 conditions of sale by, not to be depreciatory, 1 20 
 what, are depreciatory, ib. 
 special, ib. 
 counsel to draw, ib. 
 misdescription, compensation for, on, 121 
 purchase by trustee of trust estates, at, 182, 192 
 
 in lots, 192 
 after abortive auction, or reserve, 184 
 
 AnCTIONBEK, 
 
 deposit may be left with, 100 
 
 partner of, being trustee, cannot charge commission ou 
 Bale, 197 
 
 Auditor, 
 
 expenses of, appointed by testator, 200 
 
 Authority, 
 
 written, to solicitor to receive purchase money, 18 
 
 Balances, 
 
 investment of, 87 
 
 interest for, retained by trustees [see Interest] 
 expenses of renewals may be paid out of, in trustees' hands, 
 148 
 
 ]3akk [see Banker ; Following Trust Estate] 
 trust money may be placed in, when, 98 
 
 how much, ib. 
 
 for how long, ib. 
 
 to answer contingent legacies, 
 
 ib. 
 earmarking, 99 
 from necessity, 329 
 should not be left in, after new trustees ap- 
 pointed, 98 
 
INDEX. 351 
 
 Bank — continued. 
 
 after order to pay into Court, 
 . ' ib. 
 
 witli an' order to invest, 99 
 at interest, ib. 
 so that sole control lost, ib. 
 to trustee's private account, ib. 
 loss of, by payment into, 98 
 failure of, loss by, 98, 99 
 
 solicitor paying trust money into own account, into, 18 
 payment into, pending appointment of new trustees, 1 9 
 keeping money in, no excuse from paying interest, 283 
 appropriation of trustee's money in, 301 
 
 Banker, 
 
 note of, bearing interest, should not be taken by trustees, 99 
 promissory note of [see Investment.] 
 investment by, loss by, 99 
 trust-money, liability for, of, 302 
 
 where paid into account, marked trust account, 
 
 ib. 
 where not so marked, ib. 
 
 where trustee pays to own account from trust 
 account, ib. 
 not a trustee for customer, 302, 309 
 who is trustee advancing money can charge only simple 
 
 interest, 198 
 liability of trustee for acts of, indemnity against, 237 
 
 Bankrupt, \_see Bankruptcy] 
 
 feme coverte can be made, whether, 265 
 partner, purchase by partner of share of, 183 
 
 Bankruptcy 
 
 of trustee, trust property not affected by, 218 
 
 not in order and disposition, on, 218, 
 219 
 proof by c. q. t. on, 219 
 for interest, ib. 
 
 where money traced into a mortgage, ih. 
 where trust to accumulate, ib. 
 where one of several trustees bankrupt, ib. 
 where all bankrupt, ib. 
 against bankrupt firm, ib. 
 life interest of trustee impounded if equitable, ib. 
 
 secus, if legal, ib. 
 set-off, 220 
 breach of trust a simple contract debt in, ib. 
 
353 INDEX. 
 
 Bankruptcy —continiud. 
 
 is good petitioning creditor's 
 • . debt, 220 
 
 discharge, effect of, ib. 
 all trustees must join in proving debts in, 15 
 
 except in special cases, 16 
 c. q. t. must join in proving in, when, ib. 
 proof in, for breach of trust, 330 
 
 in respect of continuing testator's trade, 90 
 effect of on power of bankrupt to consent to sale, 119 
 
 on power to appoint new trustees, 209 
 dropping of policy by, of person liable to pay premiums, 89 
 trust to continue interest after, illegal, 84 
 gift over on, good, ib. 
 trust for maintenance after, when good, ib, 
 
 [see Maintenance] 
 of husband, contingent alienation of separate estate on, 259 
 liability of wife's separate estate on joint and 
 several note, on, 264 
 creditors under trust mast come in before debtor's bank- 
 ruptcy, 88 
 rules of, as to secured creditors followed in equity, 40 
 " incapable to act," trustee is not, by, 210 
 " unfit to act," trustee is, by, 209 
 
 though after discharge, ib. 
 injunction to restrain trustee from getting iu trust estate, 
 
 on, 279 
 receiver appointed on, of trustee, 272 
 attachment before and after, of trustee, 278 
 removal of trustee on, when, 209 
 
 under Bankruptcy Act, s. 117, 16. 
 trustee in, must not delegate trust, 1 7 
 purchase by, of assets, 188 
 
 being solicitor, may contract for remuneration, 199 
 following property into hands of, 299, 300, 304 
 charged witli interest on money kept in hand, 286 
 . jurisdiction as to questions in, 182 
 
 Bank Stock 
 
 investment on \see Investment] 
 
 Bahe Trust, 
 
 where passed by general devise, 21 — 24 
 [see Devise of Trust Estates] 
 
 Babe Trustee, 
 
 meaning of, 224, 225 
 may buy trust estate, 184 
 
INDEX. 353 
 
 Bastard [see Illegitimate Children] 
 
 Benefit 
 
 from breach of trust not inquired into, 330 
 
 Bequest [see Legacy] 
 
 upon secret trust [see Secret Trusts] 
 
 Bidding, 
 
 reserved, petition for advice as to, 109 
 opening, 112, 185 
 
 Bill op Exchange [see Investment] 
 
 trustees must get in money due on, 87 
 
 neglect to sue on, 88 
 
 of married woman [see Separate Estate] 
 
 Blending [see Following Trust Estate] 
 trust moneys, liability of trustees for, 99 
 by not keeping accounts, ib. 
 destroying accounts, 100 
 subject to declaration of trust, effect of, 33 
 
 Bond [see Investment] 
 
 transferable by delivery should not be left with co-trustee, 
 
 240 
 trustees must get in money due on, 87 
 husband's trustees should sue on, ib. 
 debtor on, injury to credit of,' no excuse for not suing, 88 
 to keep up insurance to secure fund advanced for wife, 
 
 179 
 of husband not proper under power to advance to him, 88 
 voluntary trust by indorsement on, 29 
 married woman's [see Separate Estate] 
 as security to answer breach of trust, 284 
 
 Breach of Trust, 
 
 acquiescence in [see Statute of Limitations] 
 
 by co-trustee, severing defence, where no, 16 
 advancement without power, 178, 181 
 bank, depositing money in, instead of investment, 99 
 so that sole control lost, ib. 
 blending with private money in, ib. 
 for reasonable time, is not, 98 
 for future payments, is not, ib. 
 banker, liability of, for, 302 
 
 allowing, to invest money, when, 99 
 
354 INDEX. 
 
 Breach op Trust — continued. 
 
 lending to, who is partner of trustee, 137 
 where not a partner, 352 
 compromise, where, 88, 89 
 consent to marriage fraudulently given, 104 
 co-trustee, handing money to, for investment, 17 
 
 power of attorney, giving to, to sell stock, ib. 
 payment to, in ordinary course, is not, 17, 18, 19 
 devise of trust estates is not, 24 
 information, withholding, 229 
 interest charged for \_see Interest] 
 investment before Lord St. Leonards' Act, 131 
 in redeemable securities, 132 
 Exchequer Bills, ib. 
 personal security, 136 
 new shares, 139 \_see Investment] 
 repairs, drainage, water supply, where, 105, 106, 
 
 107 
 wrong, effect of restraint on anticipation on, 268 
 repayment after, does not cure, 142 
 life-tenant, not renewing, guilty of, 149, 150 
 loan to bank in which trustee partner, 137 
 mortgage on deficient security, 140, 141, 142 
 
 by fraud of solicitor, 142 
 leaseholds, 143 
 life interestj ih. 
 judgment, ib. 
 Scotch lands, ih. 
 second, 142 
 
 without abstract and new valuation, ih. 
 mortgage deed, ih. 
 neglect to get in trust estate, 87 — 97 
 \_see Getting in Trust Estate] 
 personal security, 87 
 wasting securities, 91 — 97 
 money to answer payments is not, when, 88 
 to call in good mortgage is not, where, 88, 90 
 
 equitable debt, ib. 
 to sue for debt, remedy for, 325 
 
 where debtor insolvent, ib. 
 to sue husband on covenant, 87 
 on bond, ib. 
 for instalments, 88 
 on bills of exchange in time, 88 
 to receive Exchequer Bills from broker, 100 
 deposit from auctioneer is not, ih. 
 to insure, is not, 100 
 to obtain deeds from tenant for life, 226 
 
INDEX. 355 
 
 Breach op TnvnT—contimied. 
 to register, 89 
 new trustees, appointment of less number of, 212 
 non-investmeut of balances, 87 
 
 by solicitor-trustee, 324 
 relief for, 324 
 notice, neglect to give, to insurance office, 89 
 
 of, invalidates trustee's receipt, where, 129, 130 
 payment into Court, where, 276 
 
 premature, to agent, 100 
 to stranger, lOO 
 policy, dropping, to secure debt, 89, 326 
 
 notice of assignment of, neglect to give, 89, 100 
 purchase of trust estate, [see Purchase of Trust Estate], 
 
 182—195] 
 relief for, 324 
 
 injunction, 279 
 unauthorised investment, 324 
 non-investment, ib. 
 
 by solicitor-trustee, ib. 
 neglect to sue for debt, 325 
 
 where debtor insolvent, ib. 
 leaving money in trade, ib. 
 recovery of money from firm, ib. 
 
 from partners not trustees, ib. 
 bankrupt firm, 326 
 account of profit, ib. 
 
 following into hands of firm, 326 
 neglect to keep up policy, ib. 
 improvement of other part of estate no excuse for, 
 
 327 
 over-payment to tenant for life, ib. 
 trustees charged only for what received, ib. 
 wilful default, inquiry as to, ib. 
 allegations of, 328 
 [See Wilful Default] 
 ulterior consequences of, liability for, 328 
 representatives, liability of, for, 314, 329 
 
 though act reparable iu lifetime, ib. 
 in case of wilful default, ib. 
 refunding by legatees, 329 
 benefit from, not inquired into, 330 
 trustees equally liable for, 297, 330 
 
 c. q t. may proceed against all or any of, 330 
 non-acting, liable, ib. 
 joint and several liabihty for, ih. 
 
 proof in bankruptcy, 219, 330 
 action for, parties to, 330, 331 
 
 a A 2 
 
356 INDEX. 
 
 Breach of Trust — continued. 
 
 order, form of, in, 331 
 contribution between trustees made liable for, 331 
 as to costs, 332 
 parties to action for, ih. 
 indemnity does not reach, 238 
 
 between co-trustees not directed where no breach 
 
 of trust, ih. 
 seeus, where breach of trust, ib. 
 
 by stranger benefited by, ih. 
 debt created by, nature of, 332, 333 
 
 as between trustees, 333 
 concurrence of c. q. t. in, ib. 
 inquiry as to, ib. 
 c. q. t. must have full knowledge to be bound 
 
 by, 334 
 c. q. t. under disability, ib. 
 feme coverte, ib. 
 separate estate bound by, ib. 
 extent of liabihty on, 335 
 benefit of, taken by c. q. t. bars right to complain, 334 
 acquiescence in, bars right to complain, 306, 334 
 
 [See Statute op Limitations] 
 impounding interest of c. q. t., 335 
 
 right of, cannot be waived, ib. 
 beneficial interest of trustee, ib. 
 annuity, 336 
 income, ib. 
 
 not legal life estate, ib. 
 share as next of kin, ib. 
 interest on, not chargeable, ib. 
 release of, 336 
 
 when good, ib. 
 by infant, ib. 
 
 just of age, ib. 
 feme coverte, 337 
 costs of action for, ib. 
 
 order for, against all trustees, ih. 
 concurring c. q. t. to pay, ib. 
 limited to costs caused by, ih. 
 sale, unnecessary. 111 
 
 at undervahie. 111, 112 
 
 favouring purchaser, c. q. t, or life-tenant, on, 111, 112 
 
 advertisement, improper, of, 112 
 
 buying in at, without fixing reserve, ib. 
 
 to co-trustee at reserve, without leave, ib. 
 
 delay of, after reasonable offer, 114, 115 
 
 refusing to make, after request by c. q. t., 114 
 
INDEX. 357 
 
 Bbbach of Tbust — continued. 
 
 joint, with other property, when, 118 
 
 land without timber, ib. 
 
 timber without land, ib. 
 
 mortgage, instead of, 122, 133 
 
 instead of mortgage, 124 
 
 of realty where personalty sufficient, 129 
 
 of stock, where wrongful, remedy for, 285 
 
 by co-trustee, giving power of attorney to, for, 1 7 
 separate estate is liable for, 265 
 
 unless restrained from anticipation, ib. 
 solicitor, allowing receipt of trust-money by, 18 
 except in ordinary course, ib. 
 to keep money before required, ib. 
 selecting fraudulent, 19 
 
 though a co-trustee, ib. 
 
 Broker, 
 
 securities should not be left with, 100 
 
 liability of trustee for act of, indemnity against, 237 
 
 trust money may be followed in hands of, 300 
 
 Building [see Improvements] 
 power of, in trustees, 
 
 houses, 105 
 cottages, ib. 
 farm buildings, ib. 
 payment for, out of fund in Court, ib. 
 
 with money to be invested in land, ib. 
 with accumulations, ib. 
 new buildings, or re-building, 105, 106 
 making additions to houses, 105 
 villa on land subject to trust for sale, 106 
 sale for, on fee farm rent under Settled Estates Act, 120 
 cost of preparing land before, ib. 
 
 Burden of Proof [see Evidence] 
 
 Business [see Trade ; Partner] 
 
 income of fund invested in, right of tenant for life to, 94 
 
 Buying In [see Auction] 
 
 Calls, 
 
 trustee for company not liable for, 1 40 
 lien of tenant for life for, ib. 
 
358 INDEX. 
 
 Calls — continued. 
 
 trustee liable for, ih. 
 
 if registered, ih. 
 indemnity to, for, ib. 
 
 \)j man'ied woman, 262 
 
 Capital, 
 
 advancement out of, without power, 178 
 
 [s«e Advancement] 
 
 maintenance out of, 176 
 
 inquiry as to, ib. 
 of separate estate bound though feme have life estate and a 
 power, 260 
 
 where power by will only, ib. 
 where gift over in default of appointment, 261 
 separate use limited to, as well as income, where, 252 
 
 Cash 
 
 under control of Court [see Investment] 
 
 Cbetipioate 
 
 of shares, indorsement of transfer on, 29 
 
 interest on sum found by Chief Clerk's, not given, where, 284 
 
 Cestui Que Tbust, 
 
 where, to receive rents, legal estate does not pass, 2 
 secus where trustees to receive them, 3 
 or give receipts for them, ib. 
 or where separate use, ii. 
 is person to declare trust under s. 7 of Statute of Frauds, 25 
 request of, trust for purchase on, 146 
 influence of, over acceptance of offer to buy, 112 
 request of, to trustees to sell, 113, 114 
 
 as to sale of goodwill, 90 
 concurrence of, in conveyance, 121 
 
 on sales by Court, ib. 
 covenant by, ib. 
 
 may call on trustees to renew leases, 148 
 trustee consulting, as to exercise of discretion, 102 
 information to, trustees bound to furnish, 229 
 disagreement of, with trustee, no ground for removing trustee, 
 
 216 
 refusing to let trustee retire, 206 
 may be trustee, 211 
 
 husband of, ib. 
 relative of, where, ib. 
 payment to, by trustee, 230 — 236 
 
 refusal by trustees of, 230 
 
 protection of Court on, ib. 
 rights to costs on, ib. 
 
INDEX. 359 
 
 Cestui Que Teust — continued. 
 
 of appeal by trustees, ib. 
 bankruptcy 
 trustee, ib. 
 official liqui- 
 dator, ib. 
 untenable grounds of, ib. 
 from bondf.de ignorance, ib. 
 
 of Scotch law, ib, 
 postponement of, discretion as to, 231 
 wrong, recovery of, ib. 
 
 as against assignee, ib. 
 refunding legacies, 231 
 
 excessive payment, ib. 
 where estate wasted, ib. 
 overpayment in suit, ib 
 income overpaid to tenant for life, ib. 
 misrepresentation of interest of, by trustee, 232 
 counsel, on advice of, ib. 
 
 costs, ib. 
 personal representative of deceased, ib. 
 appointees under general power, ib. 
 hj feme coverte, ib. 
 trustees for, ib. 
 
 fraud, notice of in- 
 tended, by, 233 
 appointment manifestly good, where, i6. 
 refusal to pay on, ib. 
 fraud on power, where, ib. 
 default of evidence of, before, ib. 
 receipt for [see Release], 233 
 prima facie title, on, ib. 
 incumbrancer, proof of title by, ib. 
 trustee for, ib. 
 
 small sums from intestate's estate, 234 
 right to, declared by Court under 15 & 16 Viet, 
 c. 86, s. 50, ib. 
 without consequential relief, ib. 
 future, not declared, ib. 
 of persons under disability, ib. 
 notice of assignments, after, ib. 
 how assignee secured, ib. 
 new trustees need not inquire as to, ib. 
 power of attorney, evidence of validity 
 of, 235 
 liability where forged, ib. 
 where donor dead, ib. 
 given by tenant for life, ib. 
 
360 INDEX. 
 
 Cestui Que Trust — continued. 
 
 dissolution of man-iage, effect of, on right to, 235 
 presumption of death, on, ib. 
 
 after seven years, ib. 
 Crown, where entitled in default of next of kin, 236 
 release for \_see Release] 
 right of, to possession \_see Tenant for Life] 
 conveyance of legal estate by trustee to [see Conveyance] 
 title-deeds, custody of, right to \see Title-Deeds] 
 production of counsel's opinion to, 227 
 must join in proof in bankruptcy, when, 16 
 proof by, against bankrupt trustee [see Bankruptcy] 
 indemnity by, to trustee for calls on shares, 1 40 
 what constitutes, under trust deed for creditors, 37 
 
 where deed takes effect on death of settlor, 
 141 
 voluntary trusts, title of, under, 28, 30 
 cannot compel completion of voluntary trust by settlor, 31 
 
 by representa- 
 tives, ib. 
 remedy of, under voluntary trust, 36 
 purchase by trustee from \see Purchask of Trust Estate] 
 consent of, to trustee buying trust estate as agent for 
 
 stranger, 182 
 concurrence of, in breach of trust \_see Breach op Trust] 
 following trust estate by \_see Following Trust Estate] 
 possession of, not adverse to trustee, 314 
 
 of one, not adverse to othei-, 315 
 barred, trustee barred if, ih. 
 if trustee barred, ib. 
 marriage of, consent to, by trustees [see Consent] 
 interest of, extent of, to obtain injunction, 114 
 rights of, not determined on advice petition, 108 [see Advice 
 
 Petition] 
 sui juris, action by trustee where, 102 
 liability of, for costs of specific performance action, 122 
 
 Cestui Que Vie, 
 
 renewal, where life-tenant a, 148 
 
 Charge 
 
 of debts, effect of, on passing legal estate, 2, 3, 4 
 
 of debts or legacies prevents trust estates passing by general 
 
 devise, 21 
 payment by trustees for sale of legacy alleged to be a, 101 
 on leasehold bequeathed, remains on renewed lease, 77 
 remains on fee bought when renewal impossible, 78 
 tenant for life to keep down interest on, when, 96 
 possession of c. q. t. where, to be kept down, 222 
 
INDEX. 361 
 
 Charge — continued. 
 
 power to, not to be accelerated by surrender of life estate, 
 
 116 
 of portions [see Portions] 
 on infant's freehold for past maintenance, 176 
 for improvements under 27 & 28 Vict. c. 114, 107 
 
 Charging Order 
 
 on fund in Court, assignee should obtain, 292 
 
 Charity, 
 
 trusts for, prevent trust estates passing by general devise, 21 
 declaration of trusts for, must be in writing, 26 
 [see Statute op Frauds] 
 secret trust for [see Secret Trusts] 
 uncertain purposes of [see Illegal Trusts] 
 majority of trustees of, can bind minority, 15 
 trustees of, order for payment to all or any two of, 16 
 mortgage by, 134 
 new trustees of, 213 
 
 express trust under Statute of Limitations, 311 
 failure of, right of Crown, if no next of kin, 243 
 foreign [see Foreign Property] 
 
 Chattels, 
 
 not within Act of Elizabeth, 36 
 executory trust of, by reference to trusts of land, 5 1 
 vesting in first tenant in tail how prevented, ib. 
 " so far as rules of law and equity permit," effect of, ib, 
 to take jewels as heirlooms, ib. 
 
 Chattel Interests, 
 
 legal, when taken by trustees, 7 
 
 legal estate pur autre vie not cut down to, 8 
 
 Chattels Eeal, 
 
 doctrine of notice not applied to, 291 
 
 Cheque, 
 
 sending money by; to co-trustee, 17 
 
 erasure of crossing on, by co-trustee, ib. 
 
 voluntary trust of, 20 
 
 handing, part of separate estate, to husband to cash, 249 
 
 tracing money, effect of, on difficulty of, 301 
 
 Chief Clerk [see Certificate] 
 
 Child, 
 
 en ventre sa mere, accumulation during minority of, 153 
 
 when entitled to portion, 159 
 maintenance out of legacy to, 171 
 
362 INDEX. 
 
 Child — continued. 
 
 where direction to accumulate, 173 
 by other marriages, right of, to portions, 159 
 future, right of, to portion, ih. 
 
 unborn, accumulation during minority of, not allowed, 154 
 
 how far good, ih. 
 "younger," meaning of, 157 
 
 becoming eldest son, 1 58 
 eldest son becoming, ib. 
 illegitimate [see iLLEGiTiMiTB Childeen] 
 
 Children, 
 
 limitation to, in articles, imports joint tenancy, 46 
 
 Chose in Action, 
 
 assignment of [see Assignment — Notice] 
 
 Claim, 
 
 statement of [see Statement op Claim] 
 
 Class, 
 
 donee and children under precatory trust taken as a, 57 
 
 Clayton's Case, 
 
 [see Following Trust Estate] 
 
 Collateral Security, 
 
 promissory note, as, to perform voluntary trust, 34 
 mortgage of life estate with, 143 
 
 Collusion [see Fraud] 
 
 trustee liable for, notwithstanding indemnity, 238 
 
 purchase by, from trustees, 183 
 
 to turn life-tenant out of possession, 2i32 
 
 Colony, 
 
 land in, jurisdiction as to, 244 
 
 Commission, 
 
 esecutor acting as agent cannot charge, 197 
 of auctioneers where trustee partner, ih. 
 mortgagee for receiving rents, ib. 
 of colonial estate, ih. 
 of trustees of West Indian estates, 199 
 admistrator-general of Bengal, ih. 
 
 Madras and Bombay, ib. 
 to mortgagee on rents, 201 
 army, advancement for purchase of, 1 80 
 
 Committee, 
 
 remuneration to, 198 
 
 per ceutage on rents allowed to, where, 202 
 
INDEX. 363 
 
 Communication 
 
 of voluatary trust to c. q. t., 33 
 
 Compensation, 
 
 decision of judge as to, under Vendor and Purchaser Act, 145 
 
 Composition, 
 
 trustees not liable for not accepting, 88 
 attachment of trustee after, 278 
 
 Compound Intbebst [see Interest] 
 
 Compromise 
 
 power of trustees to, 101 
 release of rights, by trustees, in order to, 89 
 trustees not liable for not making, 88 
 of claims before selling under trust, 120 
 petition for advice as to, 110 
 
 restraint against anticipation does not avoid married woman's, 
 268 
 
 CONOUREEXCB 
 
 in sale, by co- trustee, 114 
 
 of trustees in advancement, 181 
 
 of c. q. t. when trustees cannot give receipt, 121 
 
 in breach of trust \_see Breach of Trust] 
 
 Condition 
 
 as to vesting of portions, 162 
 precedent, to power of advancement, 180 
 
 consent to marriage, 104 
 of marriage with consent, effect of, on sinking of portions, 168 
 of sale [see Auction — Sales by Trustees] 
 reference as to title having regard to, 144 
 depreciatory, injunction where, 279 
 
 Conduct 
 
 disclaimer by : non-interference, 10, 11 
 consent by, to marriage, 104 
 
 Confidence 
 
 words of, create trust, when, 52 
 
 Confirmation 
 
 of purchase of trust estate by trustee 
 [see Purchase of Trust Estate] 
 
 Conformity 
 
 receipt for, liability after [see Co-trustee] 
 
364 INDEX. 
 
 Consent 
 
 to investment \_see Investment] 
 
 of c. q. t. to sale, gives power to nominate purchaser, 223 
 
 refusal of trustee to convey to nominee, 
 where, 113 
 to sale, petition for advice as to, 109 
 after death oi c. q. t., \1?> 
 parol, ib. 
 antecedent, ih. 
 of "heir-at-law of A.," 119 
 after alienation, ih. 
 
 bankruptcy, ib. 
 of purchasers of life interest, ih. 
 of protector after entail barred, ih. 
 to sale, by life-tenant does not prevent purchase by him, 
 
 188, 189 
 effect of, on duty to sell wasting property, 94 
 sale without, under trust to divide, 119 
 to marriage, by trustees, where condition precedent, 104 
 
 all should join, where, ih. 
 survivors, where, ih. 
 in writing, ih. 
 by conduct, ih. 
 
 presumed from lapse of time, ih. 
 by general permission, ih. 
 conditional, ih. 
 refusal of, ih. 
 fraud on, ih. 
 withdrawal of, ih. 
 subsequent, 105 
 previously given by settlor, ih. 
 effect of disclaimer on, 13 
 
 on sinking of portions, 168 
 vesting of portions, 162 
 to maintenance out of presumptive shares of infants, 172 
 to advancement out of contingent interests, 178 
 to trustee retiring without appointing new trustee, 206 
 of husband to will of married woman, 259 
 of wife to transfer of separate estate to husband, 248 
 of trustees to alienation of separate estate, not required, 258 
 in Court oi feme cowrie revocable, 32 
 
 of c. q. t. necessary to leave property in order and disposition 
 of bankrupt trustee, 208 
 
 Consideration 
 
 meritorious, where trusts postnuptial, 32 
 under Acts of Elizabeth, 86 
 of marriage, position of remainderman as to, 32 
 
INDEX. 365 
 
 Consideration — continued. 
 
 in family arrangements, 33 
 
 ex post facto, 36 
 
 on sale by trustees [see Sales by Trustees] 
 
 illegal or immoral, bars right to rely on Statute of Frauds, 26 
 
 where absence of, is fraud against creditors and purchasers, 35 
 
 resulting trust from want of [see Ebsulting Trust] 
 
 nominal, 61 
 advanced in equal or unequal shares 
 [see Eesulting Trust, 69 — 71] 
 false statement of, in conveyance to nominee, 67 
 covenant not to sue, for creditors' deed, 38 
 antecedent debts, for creditor's deed, ib. 
 
 Consignee. 
 
 lien of, on West Indian estate, 199 
 
 Consignment, 
 
 commission on, for West Indian estate, ib. 
 
 Consols, 
 
 investment in [see Investment] 
 
 investment of balances in, 87 
 
 restraint on anticipation prevents transfer out of Court of, 268 
 
 mortgage, investment on, instead of, remedy for, 324 
 
 Constructive Notice [see Notice] 
 
 Constructive Trusts, 72 — 78 
 definition of, 72 
 limits of, iA. 
 after contract for sale, ib. 
 
 devise of trust estates passes estate 
 
 sold, ib. 
 liability of vendor for rents, waste, &c., 
 73 
 on tenant for life receiving money for withdrawing opposition 
 to Bill, ib. 
 
 on renewal of leases by trustees, &c., in their own name 73 
 
 78 
 after refusal of renewal to c. q. t., 73 
 
 by co-trustees to join, ib. 
 absence of fraud, 74 
 collusive forfeiture after, ib. 
 by executor de son tort, ib 
 by administrator, ib. 
 by executor, ib. 
 
 where testator overheld, 74 
 where testator tenant at will, ib. 
 where old lease nearly expired, ib. 
 
366 INDEX. 
 
 CONSTEUOTIVE TRUSTS — continued. 
 
 new lease granted before expiry, ib. 
 contains additional lands, 
 ib. 
 rent and term identical, ib. 
 by tenant for life, 75 
 
 ■where settlor is life-tenant, ib. 
 is not exercise of general power, ib. 
 reversionary leases granted to, ib. 
 where no obligation to renew, ib. 
 
 [Trusts foe Renewal] 
 sale of right to renew, ib. 
 of original lease purchased by him, ib. 
 rights of remaindermen not saved as 
 on express trust, ib. 
 
 [see Statute of Limitations] 
 by mortgagees, 75, 76 
 by mortgagor, 
 
 benefit of, enures to mortgagees, 76 
 by joint lessee, 
 
 benefit of, enures to all, ib. 
 where one an infant, ib. 
 by partners, 
 
 of partnership premises, i6. 
 
 term of partnership immaterial, ib. 
 where renewal by managing partner, 
 
 ib. 
 in case of mining partnership, ib. 
 acquiescence by executor of deceased 
 
 partner, ib., 77 
 claim remains till business wound up, 
 76 
 purchase of fee by partner, ib. 
 premium obtained for taking lease, ii. 
 renewed lease remains subject to charges 
 
 of debts, &c., 77, 78 
 purchaser with notice of renewed lease 
 
 liable, ib. 
 by person entitled to leasehold to himself 
 
 and heirs of his body, ib. 
 renewal granted to stranger, ib. 
 new lease subject to equities, 77 
 acquiescence, ib. 
 form of decree to enforce, ib. 
 
 mesne profits, 78 
 rack-rent leases saved, ib. 
 indemnity against cove- 
 nants, ib. 
 
INDEX. 367 
 
 CoNSTEucTivB TRUSTS— COM tinned. 
 
 lien for expenses, ib. 
 
 tenant for life, ih. 
 improvements, ib. 
 where fee purchased, charges 
 on old lease to be kept up, ib. 
 executor acting in a business without necessity where, 310 
 in vendors after contract pass by general devise, where, 21 
 in guardian, 198 
 within Trustee Acts, 210 
 no profit to be made under, 196 
 of profits made by trustees, &o., ib. 
 relief against purchaser with notice not founded on, 293 
 not saved by s. 25 of Statute of Limitations, 307 
 
 Contingent Interests 
 
 to be got in [see Reversion] 
 advancement out of, 178 
 
 consents to, ib. 
 plaintiffs having, may obtain compulsory payment into Court, 
 275 
 
 Contingent Legacies, 
 
 fund set apart for, tenant for life takes income of, 97 
 payment to answer, into bank, 98 
 
 loss of, ib. 
 maintenance out of, 171, 172 
 
 Contingent Remainders, 
 
 trust to preserve, after legal life estate, requires legal fee, 9 
 
 after power of appointment, ib. 
 trustee to preserve, may buy trust estate, 18,3 
 destruction of, by trustees, remedy for, 295 
 
 Contract, 
 
 after, vendor is constructive trustee for purchaser, 72 
 for sale, constructive trust in vendor after, passes by general 
 devise, 21 
 not under " securities for money," 22 
 passes under devise in trust for sale, ib. 
 private, sale by trustees by. 111 
 
 on purchase by trustees need not exclude Vendor and Pur- 
 chaser Act, 144 
 by trustees, decision as to, under Vendor and Purchaser Act, 
 
 145 
 specific performance of \_see Specific Performance] 
 
 by and against voluntary settlor, 36 
 feme coverte not personally bound by, 263 
 by married woman [see Sbfaeatb Estate] 
 
368 IXDEX. 
 
 Contract — continued. 
 
 between trustee and c. q. t. for remuneration, 201 
 valid if without pressure, ib. 
 separate advice as to, ih. 
 to end fiduciary relation to enable trustee to buy trust estate, 
 
 182 
 between parties is necessary to give jurisdiction as to foreign 
 property, 245 
 
 Contrary Intention, 
 
 to prevent trust or mortgage estates passing by general de- 
 vise, 21—24 
 
 [see Devise of Trust Estates] 
 
 Contribution 
 
 between trustees liable for breach of trust 
 [see Breach of Trust] 
 
 Control, 
 
 money not to be placed in bank so that trustees lose, 99 
 separate use where property to be under, 255 
 
 Conversations, 
 
 proof of trust by, 33 
 
 Conversion, 
 
 wrongful, by trustee [see Following Trust Estate] 
 
 of securities [see Securities] 
 
 of wasting securities [see Getting in Trust Estate], 91 — 97 
 
 trust for, where mortgage allowed by, 122, 123 
 
 [see Mortgage] 
 of land into money in favour of alien, 244 
 
 Conveyance [see Purchase-Money] 
 of outstanding legal estate, 122 
 where legal estate passes by, 8, 9 
 disclaimer by, 10 
 
 of trust estate purchased by trustee in name of child, 183 
 to joint purchaser [see Eesulting Trusts, 69 — 71] 
 voluntary, in trust, not to be by deed poll, 30 
 
 of trust estate, liability of grantor under, 295 
 by one to himself and another under s. 21 of St. Leonards' 
 
 Act, 213 
 of real estate to new trustees by one deed, ib. 
 by trustees for separate use to married woman while discoverte, 
 
 251 
 by trustees of legal estate to c. q. t., 223 
 refusal of : costs, ib. 
 
 on opinion of counsel, 224 
 to grantee of equitable estate, 223 
 
INDEX. . 339 
 
 Conveyance — continued. 
 
 to nominee of c. q. t, 223 
 
 to c. q. t. having apparent title, ih. 
 
 by direction of wife entitled to separate use, ib. 
 
 inquiries before, as to title of c. q. t., 224 
 
 recitals incorrect, execution of, where, ih. 
 
 to tenant in tail, ih. 
 
 of various parts at different times, ih. 
 
 by new description, ih. 
 
 ac suit of purchaser, 224 
 by bare trustee, 224, 225 
 by heir of deceased vendor, ih. 
 
 where heir an infant, 225 
 notice before, sufficient against purchaser, 299 
 
 Convict [s«e Felony] 
 
 Copyhold, 
 
 not within Statute of Uses, 1 
 vesting legal estate in, in trustees, ib. 
 devise of, to A. upon trust for B., ih. 
 
 to. A. to the use of B., ih. 
 
 to A. to transfer to B., ih. 
 duration of legal estate in, 2 
 
 on devise in trust to transfer, trustees take no legal estate, 7 
 trust of, must be declared by writing, 25 
 
 [_see Statute op Frauds] 
 enfranchisement of, conveyance on, to trustees, 122 
 trusts of money received for enfranchisement of, 73 
 mortgage on, by trustees \_see Investment] 
 for lives, purchase of by, father in name of son, 62 
 [see Eesulting Trusts, Gl — G6] 
 
 putting in own life, ih. 
 
 custom to contrary bad, 63 
 
 investment in, 146 
 
 Coroner, 
 
 trustee has right to vote for, 222 
 
 Corporations, 
 
 mortgage by, 134 
 
 Corpus \see Capital] 
 
 Costs, 
 
 of consulting counsel^ as to disclaimer, 1 1 
 where action caused by refusal of trustee to act, A 
 of solicitor- trustee, 197 [see Solicitor] 
 .provision that solicitor-trustee may charge, 199 
 
370 INDEX. 
 
 Costs — continued. 
 
 out of pocket [see Solicitor — Allowances] 
 
 to mortgagee acting as own solicitor, 197 
 of attendances to pay premiums, 200 
 auctioneers, ih. 
 legatees, ib. 
 creditors, ib. 
 of investment in land by trastees, 147 
 trustees may charge, of sale, 201 
 
 accountant, ih. 
 rent-collector, 202 
 extra, recovery of, in subsequent suit, ib. 
 of trustees where sale delayed, 115 
 
 apportionment of, ib. 
 of raising portions, 165 
 separate estate liable for, 262 
 one set of, where trustees sever [see Defence], 16 
 
 paid to innocent trustee, 16 
 where trustees sever defence, 16 
 
 apportionment of, where trustees sever, 16 
 of appointment of new trustees out of trust estate, 215 
 
 of attested copies of trust deed not included in, 215 
 of new trustee's appointment where old trustee retires capri- 
 ciously, 205 
 of appointment of new trustee where executor declines to act 
 
 in trust, 206 
 of action by. trustees, where all cs. q. t. sui juris, 102 
 of action for breach of trust, 337 [see Breach op Teust] 
 of receivership payable by life-tenant, 274 
 of specific performance suit, liability of trustees for, 122 
 where trustees refuse to convey legal estate, 223, 224 
 of action to compel trustees to transfer legal estate, 206 
 of action against trustee refusing to furnish accounts, 228, 229 
 where trustees refuse to pay to c. q. t, 230 
 
 from ignorance of law, ib. 
 appeal of, by trustees, ib. 
 where trustee wrongfully buys trust estate, 193 
 
 delay and acquiescence, where, ib. 
 contribution between trustees as to, 332 
 mortgage to secure, 190 
 
 CO-TRUSTBE, 
 
 acts of, liability of trustee for, 238 — 240 
 
 conformity, receipt given for, for money received bj^, 238 
 
 where not provided for by settlement, 239 
 where trustees jointly and severally bound, 
 
 ib. 
 act must be necessary, 239 
 
INDEX.- 371 
 
 Co-trustee — continued. 
 
 071US on non-receiving trustee as to receipt 
 
 by, 239 
 distinction between executors and trustees, 
 
 238 
 where solicitor-trustee receives money, ib. 
 laches of trustee by which funds get into hands of, ib. 
 allowing debt due from, to remain impaid, ih. 
 money to remain in trade, ib. 
 becoming insolvent before money got in, ib. 
 executor upon trust, liability of, for, 240 
 investment by, proof of, ib. 
 custody of securities by, ib. 
 
 bonds transferable by delivery, ib. 
 equitable mortgage by, ib. 
 sale by, to purchaser without notice, ib. 
 liable for rents recgived by co-trustee, 15 
 
 dividends, ib. 
 accounts kept by, liability of trustee for, 228 
 disclaimer by release or conveyance to, 10 
 delegation to, 17 
 
 arrangement with, that one shall act, bad, ib. 
 stealing money sent in ordinary course by cheque, ib. 
 
 by crossed cheque, i6. 
 misappropriation of trust fund handed by other trustees for 
 investment, ih. 
 of sale moneys of stock sold under power 
 of attorney from the trustee, ib. 
 payment to an agent for the rest; 1 9 
 must concur in sale, 114 
 passive, bound by sale, ib. 
 
 delay in selling, 115 
 
 though a minor, ib. 
 loan to, 138 
 
 advancing trust money on property of, 144 
 who is solicitor, acting for, on retainer of trustees, 197 
 trustees liable for fraud of solicitor, though a, 1 9 
 purchase by trustee from, of trust estate, 183 
 liable for breach of trust though received no benefit, 330 
 injunction by trustee against, 279 
 
 Cottages, 
 
 power to biiild, 105 
 repair, ib. 
 
 Counsel, 
 
 costs of opinion of, as to disclaimer by trustee, 11 
 employment of, to draw conditions of sale, 120 
 
37^ .INDEX. 
 
 (JounseTj — continued. 
 
 trustees may charge for opinion of, 201 
 
 advice of, does not excuse wrong payment to c. q. t., 232 
 
 costs where trustee acts bond fide on, ih. 
 purchase by, of property as to which they have advised, 191 
 gifts to, lb. 
 executory trust to settle as, shall advise, 48 
 
 Coupons, 
 
 apportionment of, petition for advice as to, 109 
 
 CODBT 
 
 will declare rights of c. q, t. without consequential relief, when, 
 
 234 
 will relieve trustee from unexpected questions, 205, 206 
 opinion of, petition for [.see Advice ; Petitions] 
 control of, over trustees' discretion [see Powbb] 
 payment into, under Trustee Belief Act, 176 
 
 order for, money ought not to be paid into 
 bank after, 98 
 fund in [see Fund in Ooubt] 
 where, orders dividends to be paid to one of several tinistees, 15 
 
 payment to trustees for time being, 1 6 
 may appoint new trustees though power in settlement, 203, 
 204 
 where none appointed by testator, ih. 
 where all trustees refuse to act, ih. 
 not where trustees willing to act, ih. 
 may increase number of trustees notwithstanding Cranworth's 
 
 Act, 203 
 title deed, order to bring, into, 226 
 
 Covenant, 
 
 by trustees [see Sale by Teustees] 
 by c. q. t. [see Sales by Tbustees] 
 by trustees, effect of disclaimer of one upon, 1 2 
 under seal, breach of trust has same effect where trustee exe- 
 cutes, or not, where, 14 
 of married woman [see Sepabate Estate] 
 for production [see Peoduction] 
 not to sue, effect of, in trust deed for creditors, 38 
 voluntary, to transfer stock or shares, 30 
 surrender copyholds, ih. 
 enforcement of, 279 
 by husband in marriage settlement, enforcement of, 87 
 
 where money payable by instalments, 88 
 to pay portions, effect of, on vesting, 160 
 leasehold, liability on, petition for advice as to, 110 
 
INDEX. 373 
 
 Covenant — continued. 
 
 of renewed lease, indemnity of constructive trustee against, 78 
 to insure by testator, liability of trustees upon, 100 
 neglect of trustees to enforce, remedy for, 325 
 to buy land, presumption of purchase being in performance 
 
 of, 305 
 to settle, is express trust, when, 308 
 
 Coverture [see Married Woman ; Separate Estate] 
 
 Cranworth's, Lord, Act [see Statutes] 
 
 Creditors, 
 
 trusts for, 37—42 
 
 I. irrevocable, 37 — 40 
 
 II. revocable, 40 — 42 
 
 I. necessity of execution or assent by, 37 
 
 where trustee is solicitor for creditors, 38 
 where trustee is a creditor, ib. 
 assent by acquiescence, 37 
 creditor must not stand by, ih. 
 time not of essence of, ih. 
 
 power to trustees to enlarge, 38 
 ■where covenant not to sue, ih. 
 refusal of creditors to come in, 37 
 setting up claim adverse to, 38 
 retainer by trustee, no right of, under, ih. 
 assent must be before debtor's bankruptcy, ib. 
 assent, implied, ih. 
 where trustee is a creditor, ib. 
 extend to what debts, 39 
 
 not to debts barred at death of testator, ib. 
 where trusts to pay debts of another, ib. 
 time stops at the death, ih. 
 delay in enforcing trust, ib. 
 ■where executors ought to pay, ih. 
 direction to pay barred debts, ih. 
 prevents lapse, ib. 
 receipt for, 40 
 debt unclaimed, ib. 
 trustees under, may require creditors to prove debts, 40 
 getting back estate after administration 
 
 decree, ib. 
 power of selection by, ih. 
 secret preference, ib. 
 
 execution of, with notice of action by a creditor, ib. 
 secured creditors under, ih. 
 new trustees of, appointment of, ih. 
 
374 INDEX. 
 
 Ceeditohs — continued. 
 
 II. assignment upon, uncommunioated and unacted upon, is 
 revocable, ih. 
 
 where request of debtor required, 41 
 retainer by trustee of debt to him, ib. 
 death of settlor, effect of, ih. 
 rights of c. q. t., -where trust takes 
 
 effect on death, ih. 
 refusal of trustees to allow opposing 
 
 creditor to come in, 41 
 action by trustee under, to get in 
 assetSj lb. 
 extent of principle as to, 42 
 execution, can buy debtor's property, 188 
 judgment, within Act of Elizabeth, 36 
 settlements in fraud of, under 13 Eliz. o. 5, 35 
 express trust for, within Statute of Limitations, 309 
 of trustee not entitled to trust property, 208 
 not damnified by merger of portion, 168 
 rights of, against separate estate \see Separate Estate] 
 
 of deceased feme cover fe, 251 
 
 Criminal Liability, 
 
 of trustee, under Larceny Act, 281, 282 
 
 leave of Chancery Division to enforce, 281, 282 
 
 Crossed Cheque [see Cheque] 
 
 Crown, 
 
 trust decreed against, on petition of right, 242 
 prizes, trust of, declared by, ib. 
 is revocable, ib. 
 pension from, trust of, how proved, ib. 
 peerage, no trust of, as granted by, i6. 
 will, right of Sovereign to make, ib. 
 land, trust of, declared by, by patent, ib. 
 grant of, to, by deed enrolled, 243 
 Statute of Frauds, bound by, 26, 243 
 escheat to, none of equitable fee, 243 
 escheat or forfeiture to, none of legal estate, ib, 
 on felony, abolished, ib. 
 failure of next of kin, right of, on, ib. 
 
 right of executor, ih. 
 evidence as to, 236 
 charitable trust, where no next of kin, 243 
 widow's right to a share on, 244 
 debts, &c., saved, on, ib. 
 discovery of next of kin, repayment by, on, ib. 
 
INDEX. 375 
 
 Crown — contin ued. 
 
 illegitimate children, claim of, entertained by, 244 
 aliens, Crown entitled to land of, under trusts before Naturali- 
 zation Act, 1870, ib. 
 
 CUETESY, 
 
 ovit of equitable estate, husband has, though settled, 270 
 to separate use, 271 
 estate tail, wife may bar, and oust, ib. 
 adverse possession, when it bars, ib. 
 
 Cdstobt, 
 
 maintenance after removal from father's, 174 
 
 of trust deed by person named trustee, not acceptance of 
 
 trust, 14 
 of deeds \_see Title Deeds] 
 of trust property [see Shares ; Bank ; Robbery j Fraud ; 
 
 Trustees ; Breach of Trust] 
 
 Custom, 
 
 to renew lease, effect of, on duty of life-tenant to renew, 148 
 that purchaser of lifehold copyhold to take beneficially, bad, 
 
 63 
 gavelkind \_see Gavelkind] 
 
 Daughter, 
 
 eldest [see Portions] 
 
 taking portion on failure of male issue, 161 
 
 infant, direction to settle on marriage of, void, 85 
 
 Death 
 
 of trustee, Court prevents failure of trust by, 1 03 
 
 survivor may exercise discretionary power of sale, 
 
 on, 122 
 consent to marriage by survivors, on, 104 
 without appointing new trustees, 203 
 in testator's lifetime, 205 
 of c. q. t., effect of, on power of attorney, 235 
 payment to representative on, 232 
 of infaut to be advanced, effect of, 180 
 
 of married woman, effect of, as to separate estate [see Sepa- 
 rate Estate] 
 of settlor, acting on power of attorney after, 34 
 revocation of voluntary trusts by, where settlement not com- 
 pleted, ib. 
 presumption of, 235 
 
 after seven years, ib. 
 evid-ence as to, ib. 
 
376 INDEX. 
 
 Debenttires [see Investment] 
 
 investment in, petition for advice as to, 109 
 
 Debts, 
 
 charge of, effect of, on passing legal estate, 2 
 trustees to pay, or debts and legacies, take legal fee, 6 
 
 unless a less estate is intended, 7 
 power of sale to pay, trustees retain legal fee taken for, 6 
 charge of, prevents trust estates passing by general devise, 21 
 resulting trust where land devised to pay, not required, 58 
 charge of, power to give receipts where [see Eeceipts of 
 
 Thusteb] 
 trust to pay, when it gives estate pur autre vie with chattel 
 interest added, 7 
 authorises sale or mortgage, 101, 113 
 sale of timber without land to pay, 118 
 payment of, out of income of first year, 96 
 discretion as to mode of payment of [see Discretion] 
 sales by Court to pay, 155 
 term for raising sinking fund to pay, ib. 
 " of another person " under Thellusson Act, ib. 
 accumulation for payment of, not limited by Thellusson Act, 
 
 153 
 not contemplated by testator, 
 154 
 insurance fund to serve other part of 
 devised property how construed, 155 
 portions postponed to, 161 
 remain charged on renewed lease, 77 
 discretion as to calling in, 88 
 by CO- trustee, not suing for, effect of, 239 
 dropping policy to secure, liability of trustees for, 89 
 
 [See Policy] 
 trustees not liable for not compounding, 88 
 getting in doubtful, remuneration for, 196 
 right of Crown where no next of kin, subject to, 2-14 
 proof of, all trustees must join in, 15 
 
 except in special cases, 16 
 when c. q. t. must join in proof of, ib. 
 purchase of, in bankruptcy, 188 
 imprisonment for [see Attachment] 
 assignment of [see Notice] 
 
 distinction between specialty and simple contract, abolished, 14 
 separate estate bound by [see Separate Estate] 
 before marriage, liability of husband for, 250, 263 
 payment of, advancement for, 178 
 
 of husband, 179 
 husband's, separate estate not liable for, 247, 262 
 
INDEX. 377 
 
 Debts — continued. 
 
 where separate estate charged with, 263 
 barred \_see Limitations, Statute op] 
 
 barred at death of testator not revived by trust to pay debt, 39 
 kept alive by acknowledgment, 315 
 charge of, creates no express trust, 311 
 joint, share of, goes to executors of deceased mortgagee, 69 
 interest on, right to, unaffected by delay in sale, 1 1 5 
 retainer of, trustee has no right of, under creditor's deed, 38 
 nature of, created by breach of trust, 220, 332, 333 
 
 Debtor [see Attachment] 
 
 trust created by, for creditors [see Creditor] 
 injury to credit of, no excuse for not suing, 88 
 policy on life of, liability of trustees for dropping, 100 
 execution creditor may buy property of, 188 
 
 Declaration 
 
 against dower, 269, 270 
 
 Declaration of Trust 
 
 under s. 7 of Stat, of Frauds, 2-5 \_see Statute of Frauds] 
 parol, of personalty, 33 
 
 evidence of intention to make, ih. 
 voluntary imperfectly created not construed as, 27, 29, 30 [see 
 
 Voluntary Trusts] 
 informal will, not construed as, 34 
 intended but not made, resulting trust where, 60 
 absence of, on purchase in stranger's name, 67 
 
 when made with borrowed money, 68 
 of equitable estate not void by getting in legal estate, 35 
 consent in Court oifeme coverte to transfer to husband is not, 32 
 
 Decree, 
 
 form of, to enforce constructive trust of renewed lease, 77 
 to charge separate estate, 264 
 
 Deed 
 
 executory trust in [see Executory Trust] 
 
 voluntary, against intention, cancelled, 31 
 
 retention* of, by settlor, 34 
 
 production of by executors of settlor, 35 
 
 revocation by tampering with seals of, ib. 
 
 will no satisfaction for gift by voluntary, ib. 
 
 voluntary trust of, 30 
 
 alienation by, of separate estate [see Separate Estate] 
 
 disclaimer by, most effectual, 10 
 
 validity of, not decided under Trustee Act, 215 
 
378 INDEX. 
 
 Deed — continued. 
 
 appointiDg new trustees, where only one, 213 
 stamp on, ib. 
 
 Deed Poll, 
 
 voluntary trust by, 30 
 
 Deeds 
 
 trustees' covenant to produce, 121 
 production of [see Title-Deeds] 
 retainer of, 145 
 
 De Facto Trustee [see Trustee de Facto] 
 
 Default, 
 
 wilful [see Wilful Default] 
 
 liability of trustees for, of person to whom they delegate 
 trust, 17 
 
 Defence, 
 
 trustees should not sever, 16 
 
 except in special cases, ih. 
 
 costs where they sever, ib. 
 when trustees sever, costs paid to innocent trustee, ib. 
 trustee not acquiescing in breach of trust may sever, ib. 
 
 Defendant 
 
 trustee, disclaiming, costs of, 11 
 
 should not traverse statement of claim, ib. 
 nor go into evidence, ib. 
 
 unless reply delivered, ib. 
 costs of appointing new trustees, on, ib. 
 trustees should not sever defence, 16 [see Defekce] 
 interrogatories by, as to trusts, 193 
 
 Delay [see Statute of Limitations] 
 in .disclaiming, effect of, 1 1 
 presumption of acceptance of trust from, 13 
 in enforcing resulting trust, 68 
 in sale, liability of trustees for, 114, 116 
 
 not to affect rights, 115 
 in selling securities, 89 
 consent to marriage presumed by, 104 
 in obtaining payment of portions, 106 
 
 as to recovering trust estate bought by trustee, costs 
 where, 193 
 
 [see Purchase of Trust Estate] 
 restraint on anticipation does not protect against, 267 
 restricts account of mesne profits, 323 
 in procedure no ground for giving interest, where, 284 
 
INDEX. 379 
 
 Delegation op Trust, 17 — 20 
 not permitted, 17 
 
 leaves liability of trustees for default, ib. 
 to co-trustee, 17, 19 
 investment, 17 
 
 by sending cheque in ordinary course to co-trustee, 17 
 arrangement for, ib. 
 by trustee in bankruptcy, ib. 
 to co-executor, 17, 18 
 where agent of trustees abroad, 18 
 to devisee or a stranger, upon disclaimer, ib. 
 to solicitor, 18, 19 
 
 by one of trustees, 1 9 
 
 trusted by testator, ib. 
 by payment to co-trustee, ib. 
 
 to solicitor, ib. 
 
 to agent, ib. 
 of discretionary trust by grant or devise, "20 
 
 Delivery 
 
 * of title-deeds out of Court to c. q. t, 226 
 securities transferable, by, safety of, 100 
 
 Demurrer 
 
 Statute of Limitations may be set up by, 316 
 Statute of Frauds may not be s6t up by, 26 
 
 Deposit 
 
 in bank which fails, liability for, 99 [see Bank — Breach op 
 Trust] 
 
 is not investment, ib. 
 to trustee's private account, ib. 
 of deeds, equitable mortgage by [see Investment] 
 may be left with auctioneer, 100 
 
 Descendants, 
 
 meaning of, 56 
 
 Descent, 
 
 younger son taking by, right of, to portion, 158 
 
 Desire, 
 
 words of, create trust, when, 52 
 
 De son Tort 
 
 trustee [see Trustee] 
 
 Devise 
 
 passes legal fee where some trusts require it, 7 
 
 where annuity may last after trustee's death, ih, 
 of freeholds construed by analogy to Statute of Uses, 1 
 
380 INDEX. 
 
 Devise — continued. 
 
 of copyholds not affected by Statute of Uses, ih. 
 where under, trustees take less than legal fee, 7, S 
 
 \_see Legal Estate] 
 indefinite, to executors, under, passes legal fee, 7 
 to "trustees of inheritance " passes legal fee, 7 
 
 to serve annuity, ib. 
 cases in which legal estate does not pass by, 2, 3 
 
 where legal estate passes by, 3, 4 
 to trustees and their heirs prima facie passes fee, 4 
 but not if purposes do not require it, 5 
 if trusts indefinite, not cut down, ib. 
 onus on those who say less intended, ib. 
 
 where, passes estate in fee under Wills Act (ss. 30, 31), 4, 6, 7 
 in trust to preserve beyond life-tenant's life passes legal fee, (3 
 with power to cut timber passes legal fee, ib. 
 in trust' to pay debts passes legal fee, ib. 
 or debts and legacies, ib. 
 unless a less estate is intended, 7 
 in trust for sale passes legal fee, 5 
 
 or mortgage to make payments, ib. , 
 though trust arises after deatli of life-tenant, ib. 
 with power of sale to pay debts, under, trustees retain legal 
 
 fee, 6 
 with. indefinite power to lease passes fee, ih. 
 effect of Wills Act, in such case, ib. 
 same with duty to pay taxes and repair, ib. 
 with power to take surrenders of leases passes legal fee, ib. 
 to trustees, "as also their heirs and assigns," passes legal 
 
 fee, 7 
 when it passes legal estate pur autre vie with chattel interest 
 
 added, ib. 
 by eldest son to younger, effect of, on right of younger son to 
 
 portion, 158 
 by husband, of land bought out of separate estate, 249 
 upon secret trust [see Secret Trusts] 
 
 Devisee, 
 
 power of, to give receipts where charge of debts, 127, 128 
 cannot avoid voluntary trust by sale, 36 
 delegation of trust to, 18 
 
 Devise of Trust Estates, 
 
 where none, pass by general devise, unless contrary inten- 
 tion, 21 
 contrary intention shown from charge of debts, ib. 
 
 or debts and legacies, ib. 
 or legacies only, ib. 
 
INDEX. 381 
 
 Devise op Trust Estates — continued. 
 
 a single legacy, ih. 
 by devise upon trust for sale, ib. 
 in strict settlement, ib. 
 upon charitable trusts, ih. 
 to tenants in common with accruer, 22 
 to tenants in common simpliciter, ib. 
 to class as tenants in common, ib. 
 to separate use, ih. 
 no contrary intention : — 
 
 devise "to use and behoof" of devisee, ib. 
 " for his own use and benefit," ib. 
 " own absolute use and benefit," ib. 
 " sole and own absolute use," ib. 
 mortgage estates pass under "securities for money," ib. 
 
 " moneys upon mortgage," ib. 
 land contracted to be sold passes under, 22, 72, 73 
 
 " securities for money " under, ih. 
 general devise in trust for sale, ih. 
 general devisee of, may execute trusts, when, 23 
 
 though power to appoint new trustees, ib. 
 where " assigns" omitted, 23, 24 
 where devisee is heir of survivor, 24 
 or executor, ih. 
 where no estate given to trustees, ib. 
 is not a breach of trust, ib. 
 unadvisable where heir proper person, ih. 
 person to whom no, assuming trusts, may be express trustee, 
 310 
 
 Directors, 
 
 with power of sale or lease, not to lease with option of pur- 
 chase, 120 
 compulsory payment into Court by, 274 
 
 Disability, 
 
 trustee can buy trust estate of c. q. t, under, only with sanc- 
 tion of Court, 184 
 
 Disagreement 
 
 between trustees, receiver where, 273 
 
 Discharge [see Ebceipt] 
 
 trustees entitled to [see Release], 236 
 
 by opinion of Court on advice petition, 108 
 
 of bankrupt trustee, unfitness after, 209 
 
 no release from breach of trust, 220 
 from prison [see Attachment] 
 of receiver, when new trustees appointed, 274 
 
3^2 INDEX. 
 
 Disclaimer, 
 
 if trustee intends not to act, he should execute, 10 
 mode of, 10, 11 
 
 by release, 10 
 
 conveyance, 10 
 at the bar, ih. 
 
 gives jurisdiction to appoint new trustees, ih. 
 by parol, ih. 
 
 operation on a use, ih. 
 conduct : non-interference, ih. 
 renouncing probate, 11 
 matters in pais and not of record, 10 
 delay in, not construed into acceptance, 1 1 
 costs of consulting counsel as to, ih. 
 
 of appointing new trustees, on, ih. 
 after action brought, ih. 
 
 costs of disclaiming defendant trustee, on, i6. 
 form of, ih. 
 
 by defence, ih. 
 disclaiming trustee not to go into evidence of not having 
 acted, ib. 
 unless reply delivered, ih. 
 effect of, on estate of other trustees, ih. 
 relates back to appointment, 12 
 effect of, on powers of trustees, ih. 
 
 covenants by trustees, ib. 
 where all disclaim, ih. 
 
 power of administrator cvm test, annexo, ih. 
 legal estate vests in heir, ib. 
 by executor of executor, ib. 
 delegation to devisee or stranger, upon, 18 
 construed as desire to retire, 208 
 vests power to appoint new trustees in others, ih. 
 reservation of power to appoint new tiustees, notwithstand- 
 ing, ih. 
 consent to mai-riage to be given after, 104 
 trustee may buy trust estate after, 183 
 of one trustee no ground for receiver, 273 
 husband's, may create separate use, 248 
 
 DiscovEETURE [see Separate Estate] 
 
 Discovert 
 
 of secret trust, right to, 79 
 
 for charity, 81 
 of fraud, time does not run till, 320 
 inquiry as to time of, ib. 
 
INDEX. 383 
 
 Discretion, 
 
 geiierj,! iu mattera not contemplated by settlement, 101 
 to do what Court would have ordered, ib. 
 sell or mortgage to pay debts, ib. 
 make necessary payments, lUl 
 
 inquiry as to, 106 
 clear estate from doubtful claim, 101 
 compromise, ib. 
 
 pay capital sums to annuitant, ib. 
 advance their own money and claim lien for it, ib. 
 not sale or foreclosure, ib. 
 not to refuse request of c. q. t. without reason, ib. 
 costs where they refuse, ib. 
 consulting c. q. t. as to exercise of, ib. 
 where validity of appointment doubtful, ib. 
 trust with a, cannot be delegated, granted, or devised, 20 
 
 even to a co-trustee, ib. 
 refusal by trustee to exercise, not ground for removal, 216 
 exercise of, by Court [see Powee] 
 to appoint new trustees, control of Court as to, 204 
 as to sale or exchange [see Sales by Trustees] 
 
 of parts of or whole estate, 112 
 to sell, effect of, on duty to convert wasting securities, 92, 93 
 as to time of sale of securities, by trustees, 89 
 sale within a year, 89, 114 
 excessive delay, 89 
 as to investment of purchase-money gives power to give 
 
 receipts, 125 
 as to lending on personal security, 136 
 as to investment in land, exercise of, 146 
 to vary securities [see Power] 
 to get in debt or not, 87 
 as to mode of raising money for debts, 154 
 
 out of mines or timber, ib. 
 rents, 155 
 by sale, ib. 
 by leases on fines, ib. 
 as to renewing leases under Lord Crauworth's Act, 148 
 
 before the Act, 149 
 as to maintenance, when controlled by Court, 174 
 after action, 175 
 
 payment into Court, ib. 
 allowance of payments, ib. 
 under Cranwortli's Act, 171 
 with reference to father's ability, 173 
 of married woman, 256 
 whether payable out of which of two 
 funds, 177 
 
384 INDEX. 
 
 Discretion — continued. 
 
 during life, ib. 
 
 of bankrupt, ib. 
 
 after bankruptcy, ib. 
 
 of bankrupt or his family, 178 
 as to advancement, 181 
 of trustee under creditor's deed to allow opposing creditor 
 
 to come in, 41 
 of donee does not defeat secret trust, 80 
 of Court as to attachment, 277 
 
 Disentail [see Estate Tail] 
 
 effect of, on right to portion, 158 
 
 Disposal, 
 
 separate use where property to be at, 253, 256 
 
 Disposition, 
 
 power of, by m arried woman, of separate estate \_see Separate 
 Estate] 
 
 Disseisin, 271 
 
 Distress 
 
 by c. q. t. in possession, 221 
 
 right of, and entry, without term to raise portions, 164 
 
 Distribution, 
 
 power of, in nature of trust, how executed, 103 
 
 Distributions, Statute of, 
 
 advance by portion under, 180 
 
 Distringas 
 
 by assignee of equitable interest, 234, 292 
 
 Dividends, 
 
 received by one trustee, co-trustees liable for, 15 
 
 order for one of several trustees to receive, 1 5 
 
 apportionment of [see Apportionment] 
 
 third, in one year, by change of investment, 136 
 
 restraint on anticipation does not prevent payment out of 
 
 past, 268 
 in bankruptcy, purchase of, 188 
 
 Divorce, 
 
 does not deprive husband of life interest, 235 
 
INDEX. 385 
 
 DOMICIL, 
 
 effect of c. q. Vs. on appointment of foreign trustees, 212 
 foreign, of married woman, does not enable Court to get rid 
 of restraint on anticipation, 267 
 
 Donatio Mortis Causa, 
 
 informal voluntary gift, not being, 34 
 
 DOWEB, 
 
 trust estates are liable to, 269 
 
 though husband had right of entry only, ib. 
 
 not out of estates disposed of, ib. 
 
 not where declaration against, ib. 
 
 not before Dower Act, ib. 
 
 equity of redemption, ib. 
 
 ■where wife concurred in mortgage, ib. 
 
 gavelliind, out of, 270 
 
 freehold leased for lives, ib. 
 
 executory devise over, does not prevent, ib. 
 
 proceeds of sale, out of, ib. 
 
 Drainage, 
 
 power of trustees to spend money in, 106 
 
 Drunkenness, 
 
 receiver where evidence of, of trustee, 273 
 
 Duchy of Lancaster [see Palatine Court] 
 
 Duty, trust coupled with, legal estate vests where, 2 
 
 Earmarking 
 
 money, meaning of, 300 
 trust money at bankers, 99 
 
 Earnings, 
 
 separate, under Mai-ried Women's Property Act, 250 
 equitable assets, 252 
 
 East India Stock 
 
 investment on [_see Investment] 
 
 petition for advice as to, 109 
 
 Education, 
 
 power of, " is usual power " in settlement, 50 
 advancement for, 179 
 
386 INDEX. 
 
 Election, 
 
 between portions and other provision [see Poetions] 
 by wife between will and purchase in her name, 14 
 
 Emigration, 
 
 advancement for, 179 
 
 Enfrakchisement, 
 
 conveyance on, to trustees, 122 
 
 Engagements, 
 
 oifeme coverte binding separate estate [see Separate Estate] 
 
 Entry, 
 
 right of, effect of, on vesting of portions, 160 
 
 and distress, without term to raise portions, 164 
 
 Equitable Assets, 
 
 separate earnings of married woman are, 251 
 
 Equitable Assignment [see Assignment ; Notice] 
 
 Equitable Claim, 
 
 bar of [see Statute of Limitations] 
 
 Equitable Estate, 
 
 legal estate cannot pass where testator has only, 3 
 voluntary settlement of, 28 
 
 reversionary, ib. 
 voluntary trust of, acceptance of, by original trustees, 28 
 not void by getting in legal estate, 35 
 interest in agreement for lease, 28 
 separate use, conveyance of, .by married woman entitled to, 
 
 268 
 dower out of, 269 [see Dower] 
 curtesy out of, 270 [see Curtesy] 
 
 Equitable Mortgage [see Investment] 
 
 Equities, 
 
 assignee of chose in action takes subject to, 288 
 
 lessee under renewed lease takes subject to, 77 
 
 equal, 295 
 
 doubtful, notice of, effect of, 299 
 
 strange trustees not to refuse payment on account of, 234 
 
 Equity op Redemption, 
 
 investment on, by trustees, 1 47 
 
 title to share of, on joint purchase of, 69 
 
 mortgagee may buy, 186 
 
 secus where poverty or pressure, ib. 
 
INDEX. 387 
 
 Equity op Kedbmption — continued. 
 
 when solicitor is mortgagee, 186 
 renewal of lease by mortgagee enures for old, 75 
 dower out of, when, 269 
 
 where wife concurred in mortgage, 270 
 
 Escheat, 
 
 for want of heir abolished, 243 
 
 on conviction of felony, abolished, ib. 
 
 Estate, 
 
 of trustees [see Legal Estate] 
 
 Estate Tail, 
 
 Court protects, in executory trusts, how, 43, 44, 45, 47 
 
 [see ExECDTOBY Teusts] 
 words of recommendation cannot prevent barring of, 54 
 after barring, consent of protector to sale, 119 
 equitable, of feme coverte, if to separate use may be barred, 
 how, 258 
 
 Evidence, 
 
 of parol trust, what required, 33 
 
 proof of, by conversations, ih. 
 of intention that trust should result, 60 
 to rebut resulting trust on purchase in stranger's name, 67 
 onus of proof, ib. 
 of poverty of grantee, ib. 
 as to who paid price, 68 
 of payor's intention, ih. 
 parol, 61 
 to rebut presumed advancement by parent, ib. 
 
 [see Kesdlting Trusts, 61 — 66] 
 of intention to rebut advancement by purchase in son's name, 
 65 
 must be antecedent or contemporaneous declara- 
 tions, ib. 
 effect of subsequent authority to father to sell, 66 
 after death, only declarations against interest, ib. 
 of person claiming advancement against resulting trust, ib. 
 parol, to prove secret trust, 80 
 
 of wife's assent to transfer of separate estate to husband, 248 
 of benefit of joint sale by trustees, 118 
 of fitness of new trustees, 205 
 to shew fund in trustee's hand not allowed to obtain payment 
 
 into Court, 275 
 receiver, on application for appointment of, 272 
 not admitted on advice petitions, 108, 109 
 
 c c 2 
 
388 INDEX. 
 
 Exchange, 
 
 power of, when to be exercised, 111 
 money from, reinvestment of, 132 
 
 Exchequer Bills [see Investment] 
 temporary investment in, 100 
 
 Executed Trust, 
 what is an, 43 
 
 [see Executory Trusts] 
 
 Execution 
 
 of trust-deed by creditors, 37, 38 
 
 Execution Crbditoe 
 
 may buy debtor's property, 188 
 
 Executors 
 
 take legal fee under indefinite devise to them, 7 
 
 take legal estate in term as long as required by limitation of 
 
 it, 2 
 not bound to assume continuing trust, 206 
 upon trust, acceptance of trusts by, 1 3 
 assenting to trust-legacy accept trusts, 13, 307 
 
 [see Statute of Limitations] 
 non-investment of trust-legacy by, remedy for, 324 
 not intending to act should disclaim, 10 
 mode of disclaimer [see Disclaimer] 
 executor of, cannot disclaim, 12 
 
 acceptance by, 1 3 
 trustee for next of kin, when, 243 
 delegation by, to co-executor, 17 
 liability of, for misapplication by co-executor, 18, 220, 240 
 
 for safety of assets, 98 
 receipt by [see Receipt of Trustee] 
 mortgage by, 123 
 renewal by, in their own name, 74 
 
 [see Constructive Trusts] 
 following assets disposed of by, 298 
 of trustee liable for breach of trust, cannot set up bar by 
 
 analogy to statute, 314 
 notice where trustee is, 289 
 cannot buy estate, 185 
 
 legacy from legatee, when, ib. 
 in trust, may not profit by trust, 196 
 acting as agent cannot charge commission, 197 
 need not obey desire to continue agent, 55 
 acting in self-imposed trust of managing a business, a con- 
 structive trustee, 310 
 
INDEX. 389 
 
 Executors — continued. 
 
 renewal of bond of minor by, on majority, 1 38 
 power of, where executor of surviving trustee, 24 
 
 to appoint new trustees, 203 
 of last surviving trustee must transfer to new trustees, 213 
 renouncing, power to appoint new trustees vests in others, 208 
 appointment of, by married woman, effect of, 232 
 payment by trustees to, receipt for, 233 
 
 Executor de son tort, 
 
 renewal by, in his own name, [see Coksteuctivb Trusts] 74 
 
 Executory Trusts, 
 definition, 43 
 
 mode of execution of, by Court, ib. 
 effect of rule in Shelley's Case upon, ib. 
 distinction between, in articles and in wills, ib. 
 
 settlor "his own conveyancer," where, 44, 47 
 in marriage articles, 44 — 47 
 
 " heirs of the body " construed as words of purchase, 44 
 includes females, when, 49 
 issue, ib. 
 special entail, how protected, 44 
 husband's lands, iA. 
 wife's, 4-5 
 limitation to issue of husband and wife, ib. 
 ■where husband and wife can bar jointly only, ib. 
 no strict settlement where other provision, ib. 
 rectification of settlement made under, ib. 
 
 evidence aliunde not required, ib. 
 where settlement is under altered intention, ib. 
 
 such settlement postnuptial and voluntary, 45 
 its rectification on ground of mistake, 45, 204 
 followed if distinct contract in them, 46 
 " issue " includes females in, ib. 
 
 form of settlement on females in, ib. 
 joint tenancy construed tenancy in common, when, ib., 49 
 
 limitation over on death under 21, ib. 
 joint tenancy implied by limitation to children, ib. 
 purchaser for value without notice, limitations not varied 
 
 against, ib. 
 secus, against purchaser with notice, when, ib. 
 non-production of, prevents Court from moulding, 47 
 in wills, 
 
 when trusts are executory and when not, 47 
 where trusts imperfectly declared, ib. 
 not where testator " his own conveyancer,'' ib. 
 not modified: "proper entail," 47 
 
390 INDEX. 
 
 Executory Trusts — continued. 
 
 to settle land upon "A. and the heirs of his body," 47 
 
 "A. for her separate use for life and 
 then to convey to her heirs, 48 
 by reference to other trusts, ib. 
 modified : restriction as to " docking entail," ib. 
 remainder over to " issue," ib. 
 
 on death without issue, ib. 
 separate use and gift over, ib. 
 as counsel shall advise, ib.,50 
 as trustees shall think proper, 49 
 according to limitations of a peerage, ib. 
 where too remote, ib. 
 restraint on anticipation added, ib. 
 trust for renewal added, 149 
 protector, appointment of, 49 
 when life estates sans waste, ib. 
 
 not if restrained from anticipation, ib. 
 of gavelkind lands, ib. 
 
 where joint tenancy construed tenancy in common, ib. 
 settlement of personalty by reference to trusts of realty, 50 
 what powers inserted, ib. 
 "usual powers," what are, ib. 
 [see Power] 
 where direction to settle too vague, ib. 
 " on marriage," ib. 
 but not " upon younger children," 51 
 of chattels by reference to trusts of land, ib. 
 
 vesting in first tenant in tail, how prevented, ib. 
 " so far as rules of law and equity permit," effect of, ib. 
 to take jewels as heirlooms, ib. 
 
 Exoneration 
 
 of purchasers [see Eeceipt op Trustee] 
 
 Expenses 
 
 of renewal of leases, apportionment of [see Renewal of Leases ; 
 Costs] 
 
 Express Trust, 
 
 right of trustee to release under, 236 
 executor assenting to trust-legacy, holds on, 13 
 devisees of trust estates not passing, who acts, is, 1 4 
 [see Statute of Limitations] 
 
 Failure 
 
 of trust [see Trust] 
 
INDEX. 391 
 
 Failuee — con tinued. 
 
 resulting trust from, of original trusts, 60 
 of purpose of illegal trust, 85 
 of purpose of advancement, 180 
 of next of kin, Crown takes on, 243 
 
 of charitable trust, executor is trustee for Crown if no next of 
 kin, 243 
 
 Family, 
 
 meaning of, 56 
 
 Faem Buildings, 
 
 power to build new, 105 
 
 Fathee, 
 
 ability of, to maintain [see Maintenance] 
 
 Feb Simple, 
 
 trustees take under what devises, 5 — 7 
 
 [see Legal Estate] 
 purchase of reversionary, by partner, 77 
 
 by tenant for life, 78 
 adjustment of charges, ib. 
 
 Felon, 
 
 property of, vested in administrator, 243 
 
 Felony, 
 
 escheat and forfeiture on conviction of trustee for, abolished, 
 243 
 inquiry as to trusteeship, ib. 
 of equitable estate, ib. 
 power to appoint new trustee on conviction for, 209 
 
 Female 
 
 undesirable person, whether married or single, to be trustee, 
 212 
 
 Feme Covbetb \_see Maeeied Woman] 
 
 Feme Sole, 
 
 voluntary settlement by, 32 
 
 Feoffment 
 
 to stranger, without consideration, resulted,. .60 
 
 Fines, 
 
 apportionment of \_see Renewal op Leases] 
 leases on, to pay debts, not allowed when forbidden to sell, 
 155 
 
392 INDEX. 
 
 Firm, 
 
 trust money lent to, when recoverable, 325 
 
 partners of, must know the fund to be, ib. 
 tracing, into hands of, 326 
 profits from, not recoverable, ib. 
 compulsory payment into Court where trust fund lent to 
 trustee's, 275 
 [see Teade ; Partner] 
 
 Following Tbust Estate 
 
 purchaser for value without notice, not allowed against, 293 
 
 defence of, resting on deed disclosing trust, 29 
 on defective title, ib. 
 interrogatories as to, ib. 
 traverse of, by evidence of 
 
 single witness, ib. 
 notice must be denied, on, 
 
 295 
 equal equities, where, ib. 
 voluntary grantee though without notice can- 
 not set up, ih. 
 where trustees have destroyed contingent 
 
 remainders, ib. 
 deeds, not ordered to be given up by, ib. 
 
 with equitable mortgagee, where, ib. 
 selling to person with notice, 296 
 purchase by person without, from, ib. 
 
 notice through agent, ih. 
 vendor's lien within principle of, ib. 
 all parties to breach of trust equally liable 
 in, 297 
 
 [see Statute op Limitations] 
 notice, constructive, good in case of, ih. 
 solicitor acting for both sides, ib. 
 distinction between, and personal notice, 
 298 
 notice by nature of transaction, ib. 
 recitals giving, ib. 
 in different transactions, 299 
 doubtful equity, of, ib. 
 before conveyance enough, ib. 
 form of plea of, ib. 
 price must have been paid, ib. 
 
 security for, not enough, ib. 
 part payment of, not enough, ib. 
 purchaser with notice, as a trustee against, 293, 294 
 
 set off by, 294 
 
INDEX. 393 
 
 Following Trust Estate — continued. 
 
 purchaser with notice, as a trustee against : surrender of rights 
 
 acquired by, 296 
 acquiescence during ignorance 
 
 not available by, ib. 
 legal estate got in no protection 
 
 to, 296, 297 
 except against other than equit- 
 able claims, 297 
 after wrongful conversion by trustee, 299 
 principle as to, ih. 
 when trust fund traceable, 300 
 
 trust stock sold, ib. 
 difficulty of tracing, ih. 
 
 earmarked property, ib. 
 cheques, use of, 301 
 loss of fund, effect of, ib. 
 identification of property, ib. 
 mixing with trustee's private moneys, 301, 302 
 injunction to prevent the conversion, 301 
 liability of banker on trust accounts, 302 
 banker not a trustee, ih. 
 trust account so marked, ib. 
 death of trustee does not prevent, ib. 
 appropriation of money in bank (Clayton's 
 Case), 301, 302 
 
 fraudulent items, 303 
 agents, liability of, ib. 
 solicitors, liability of, ib. 
 husband, liability of, ib. 
 trustee in bankruptcy, liability of, 304 
 similar property of trustee may be applied, ib. 
 fund in Court, ih. 
 into land purchased by trustees, ib. 
 parol evidence admissible for, ib. 
 tenant for life, against, 304, 305 
 
 lien, declaration of, for moneys traced, 304 
 person bound to lay out, purchasing land, against, 305 
 presumption as to, ib. 
 identity of sum laid out, ih. 
 poverty of person so bound, ib. 
 into mortgage, 219 
 
 FOBBCLOSUEB 
 
 by mortgagee under unauthorised mortgage, 123 
 
 trustees not entitled to, for money advanced out of pocket, 102 
 
 opening, 187 
 
 FoEBiGNER [see Alien ; Foreign Property] 
 
394 
 
 INDEX. 
 
 FOEEIGN PrOPBRTT, 
 
 trust of, Court administers, if trustee in England, 244 
 colonial land, ib. 
 
 Court acts only if privity between parties, 245 
 lex loci must not have been infringed, as to land, ib. 
 lex loci, inquiry as to, ib, 
 foreign Court having jurisdiction, ib. 
 action by foreigner as to, against foreigner, ib. 
 defendant in England, and better remedy here, as 
 
 to, ib. 
 injunction against proceedings abroad as to, ib. 
 identical proceedings abroad as to, ib. 
 
 where plaintiff entitled to pro- 
 perty here and also to, 245 
 terms on granting, 246 
 order for service out of jurisdiction does not extend 
 
 jurisdiction as to, ib. 
 charity, trusts of, for, jurisdiction as to, ib. 
 
 FoBEiGN Stocks [see Investment] 
 
 investment in, petition for advice as to, 109 
 
 FOEPEITUEB, 
 
 for want of heir, abolished, 243 
 
 on conviction for felony abolished, ib. 
 
 FOEGERT, 
 
 removal of trustee for, 216 
 
 of solicitor-trustee on conveyance to purchaser, 298 
 
 Fraud, 
 
 liability of trustee for, 98 
 
 executor, ib. 
 of co-trustee, liability of trustee for, 17 
 of co-executor, liability of executors for, 18 
 of solicitor, trustees liable for, 1 9 
 though a co-trustee, ib. 
 where appointed by one trustee, ib. 
 action as to : joinder of trustees, ib. 
 of agent, 187 
 
 of trustees, where it makes him constructive trustee, 
 72 
 of married woman, 266 
 secret trust enforced on ground of, 79 
 
 against an ignorant donee, whether, 81 
 in secret trust for charity, 82 
 
 relief against purchaser with notice founded on, 293 
 concealed, c. q. t. not barred until discovery of, 320 
 inquiry as to time of discovery of, ib. 
 
INDEX. 395 
 
 Feaud — continued. 
 
 suspicion of, not within rule as to concealed fraud, 321 
 
 discovery of, 322 
 
 receiver or borrower of trust-money is a trustee on ground 
 
 of, 322 
 particeps criminis in, cannot set up Statute, ih. 
 lunatic not barred by non-discovery of, ib. 
 prevents acquiescence during ignorance, 296 
 
 application of rule in Clayton's Case {q. v.), 303 
 withholding payment by trustee to c. q. t. by, 230 
 on power, trustees must not pay on appointment which is, 233 
 notice of intended, trustees having, must not pay to trustees 
 
 under appointment, 233 
 renewal of lease by trustee, &c., without, 74 
 
 [see Constructive Trusts] 
 against creditors under 13 Eliz. c. 5, 35 
 
 purchasers under 27 Eliz. c. 4, ih. 
 absence of consideration is, ib. 
 
 proof of value, ib. 
 in appointment of new trustees, 204 
 on obtaining opinion of Court on advice petitions, 108 
 inducing marriage without consent, 104 
 withdrawal of consent to marriage obtained by, ib. 
 interest payable by trustees for, 283 
 false accounts rendered by trustees, interest payable where, 285 
 
 Frauds, Statute op \_see Statute op Frauds] 
 resulting trusts not within, 61 
 
 parol evidence to rebut, ib. 
 separate estate bound, subject to, where, 259 
 
 Fraudulent Conveyance [see Fraud] 
 
 Fraudulent Pebfbrbncb, 
 
 creditor paid by, and ordered to repay, not within s. 4 of 
 Debtors' Act, 277 
 
 Frebben'ch, 
 
 none, out of equitable estate in copyhold, 270 
 
 Freehold, 
 
 legal estate in trustees on devise of, 1 
 
 duration of legal estate in, 2 
 
 mortgage of, by trustees [see Investment] 
 
 Friendly Society, 
 
 trustees of, injunction against, as to funds of, 280 
 
 Fund in Court, 
 
 new trustees of, to be parties to administration action, 205 
 
396 INDEX. 
 
 Fund in Court — continued. 
 
 not paid out to sole trustee, 213 
 
 cannot be followed, 304 
 
 charging order on, 292 
 
 payment for building, (kc, out of, 105, 106 
 
 under Settled Estates Act, application of, 106 
 
 restraint on anticipation does not prevent payment out of, 268 
 
 secus, if stock, ib. 
 payment out of, after protection order under Divorce Act, ib. 
 
 Funeral Expenses, 
 
 separate estate, liability of, for, 252 
 
 Further Consideration, 
 
 compulsory payment into Court, order for, on, 275 
 interest given on, though not prayed, 284 
 
 not given on, on sum found by Chief Clerk, ib. 
 
 Gavelkind, 
 
 lands in, executory trust of, how executed, 49 
 
 sale moneys of, rights in land bought with, 146 
 dower out of, 270 
 
 General Devise 
 
 passes trust or mortgage estates, where, 21 — 24 
 [see Devise of Trust Estates] 
 
 General Engagements [see Separate Estate] 
 
 General Order, 
 
 1st Feb., 1861 : investment, 132, 133 
 
 Getting in Trust Estate, 
 
 duty of trustees to get in improper investments, 86 
 to invest balance in Consols, ib. 
 to get in personal securities, ib. 
 
 with all convenient speed, 87 
 discretion to vary securities, ib. 
 to obtain transfer of settlement funds, ib. 
 liability for misappropriation by hus- 
 band, ib. 
 liability of husband, ib. 
 discretion to call in a debt or not, 87 
 power to advance to husband on " sufficient 
 security," ib. 
 
 not to take his bond, ib. 
 not to forbear to sue, ib. 
 to compromise and release rights, 87, 88 
 
INDEX. 397 
 
 CiETTiXG IS Trust Estate — cmitinued. 
 
 duty of trustees, liability for not suing, 87, 88 
 
 to get in insufficient fund charged with pay- 
 ments, ib. 
 liability to keep up policy, 89 
 
 for neglecting to give .notice as to 
 policy, ib. 
 to register, ib. 
 for giving receipt for money not re- 
 ceived, ih. 
 discretion as to time of sale of securities, ib. 
 must show why no sale in the 
 
 year, ib. 
 excessive delay, ih. 
 receiving before appointed time, i5. 
 continuing trade, 89, 90 
 
 liability of executor, 90 
 where power to trade limited, ib. 
 indemnity for, ih. 
 sale of goodwill, ib. 
 discharging servants, ib. 
 calling in mortgages, if good, ib. 
 
 if bad, lb. 
 calling in equitable debt, ib. 
 receipts good under 22 & 23 Vict. c. 35, or 
 23 & 24 Vict. 0. 145, ss. 29 and 34, 91 
 for personal debts and those payable 
 out of land, ib. 
 misapplication after, by one of trustees, 239 
 receiver on omission of, 272 
 
 Wasting Securities to be converted, unless contrary intention, 
 91—96 
 
 what are, 91 
 non-conversion of, is breach of trust, ih. 
 rights against tenant for life, 91, 92 
 unauthorised securities, ib. 
 
 contrary intention : tenant for life to take whole income, ib. 
 burden of proof, ib. 
 specific gift of leaseholds, 92 
 general words after gift, ih. 
 "rents," "income," "dividends," "pro- 
 fits," 92, 93 
 postponement of sale to death of life- 
 tenant, ib. 
 
 for definite time, 94 
 indefinite time, ih.. 
 division at his death, 93 
 specific gift at his death, 94 
 
398 INDEX. 
 
 Getting in Trust Estate — continued. 
 
 contrary intention : gift of unsold part, 94 
 
 reference to leaseholds as not likely to be 
 
 sold, ib. 
 fund invested in business, ib. 
 defective title, ib. 
 
 life-tenant's consent to sale required, ib. 
 no contrary intention : gift of maintenance, 93 
 direction to convert, ih. 
 to sell to pay debts, ih. 
 to continue investments, ib. 
 to vary securities, ib. 
 discretion to sell, ib. 
 sale from time to time, ib. 
 sale at indefinite time, ib. 
 reversions to be converted : rights of life-tenant, 95 
 falling in before conversion, ib. 
 expectant on life-tenant's death, ib. 
 adjustment of rights of tenant for life and remaindermen, 
 95—97 
 in proper investments, 95 
 
 how calculated, ib. 
 in investments returning very high interest, 96 
 in case of real estate, ih. 
 in improper investments, ib. 
 in inconvertible property, 97 
 in income to be accumulated, ib. 
 in income of fund to meet contingent legacies, ih. 
 overpayment of income to life- tenant, recovery of, 231 
 
 Gift \see Voluntary Trusts — Declaration op Trust] 
 of money, &c., prima, facie absolute, 61 
 to solicitor, 190 
 
 counsel, 191 
 by husband to wife, 248 
 
 by wife to husband, destruction of separate use by, ib. 
 evidence as to, 248, 249 
 
 Gift over, 
 
 where legal, after life estate, trustees take pur autre vie, 8 
 effect of, on vesting of portions, 161 
 
 separate estate not bound by debt, where, in default of ap- 
 pointment, 261 
 
 Goodwill, 
 
 sale of, by trustees, 90 
 
 Government Securities, 
 
 investment in [see Investment] 
 
INDEX. 399 
 
 GBANDCtllLDREN, 
 
 portions, when they take, 157 
 
 Grandfather 
 
 in loco parentis, when, 65 
 
 Grantor, 
 
 grant by, without consideration, results to, 60 
 except to wife or child, ib. 
 
 Gravel 
 
 pits, power of trustees to work, 107 
 
 Ground Eents, 
 
 investment in, petition for advice as to, 109 
 mortgage of, 142 
 
 under power to lend on real security, 1 43 
 purchase of, 146 
 
 Guarantee 
 
 by married woman [see Separate Estate] 
 
 Guardian 
 
 is trustee for ward, 310 
 
 entering on ward's land, remedy on, 311 
 
 [see Statute op Limitations] 
 account of mesne profits against, 323 
 cannot make profit, 198 
 buying estate of wards, 189 
 maintenance, payment of, to, 171 
 
 Heir 
 
 takes legal estate where all trustees disclaim, 12 
 
 meaning of, in precatory trust, 56 
 
 cannot avoid voluntary trust by sale, 36 
 
 not excluded from resulting trust by negative words, 59 
 
 nor by bare intention, ib. 
 
 nor by legacy to him, ib. 
 
 \see Kesulting Trust] 
 right of, to discovery of secret trust, 79, 81 
 power of, where devisee of surviving trustee, 24 
 leaving trust estates to descend to, ib. 
 of vendor dying before conveyance, conveyance by, 224 
 infant, conveyance by, 210, 224 
 concurrence of, in conveyance on sale to pay debts, 128 
 
 Heirlooms, 
 
 jewels to be taken as, 51 
 sale of, private Act for, 103 
 
400 INDEX. 
 
 Hope, 
 
 words of, create trust, when, 52 
 
 House [see Mansion-house] 
 
 purchase of under trust to invest in land, 146 
 
 Household, 
 
 separate estate not liable to maintain, 263 
 expenses, money given for, when separate estate, 253 
 
 Husband 
 
 of c. q. t. may be trustee, 211 
 
 right of, to select new trustee of separation-deed, 204 
 
 executory trust in articles as to lands of, 44 
 
 [see Executoet Tbusts] 
 liable for secret trust in wife, 81 
 does not lose life interest on divorce, 235 
 curtesy of, in equitable estates, 270 
 
 words in gift to feme coverte to exclude [see Separate Estate] 
 trustee for separate use, where no other trustee, 247 
 conveyance of separate estate to, by trustees, 223 
 separate estate, gift of, by wife to, 248, 249 
 
 loan to, out of, 249 
 
 devise by, of land bought with, ib. 
 
 acquiescence of wife in dealings by, as to, ib. 
 
 acknowledgment by, of right to, ih. 
 wife following trust property into hands of, 303 
 expenditure upon separate estate by, 248 
 charges on separate estate, lien for payment of, by, ib. 
 debt of, separate estate not liable for, 262, 263 
 poverty of, no ground for charging separate estate, 263 
 chargeable to parish, separate estate liable where, ib. 
 action against, as to sepai-ate estate, 264 
 injunction against, from receiving separate estate, ib. 
 loan to [see Investment] 
 
 covenant by, in marriage settlement, enforcement of, 87 
 bond by, trustees should sue on, ib. 
 instalments unpaid by, trustees should sue for, 88 
 misapplication by, 87 
 
 through default of trustees, remedy for, 325 
 where husband insolvent, ib. 
 
 Idiot, 
 
 maintenance of, 175 
 
INDEX. 401 
 
 Ignorance 
 
 of title under which trustee holds excuses hi.n, 241 
 
 of law, refusal to pay to c. q. t. from, 230 
 
 prevents bar to upsetting purchase of trust estate by 
 
 trustee, 195 
 acquiescence not binding during, 318 
 fraud prevents acquiescence during, 296 
 release void on ground of, of c. q. t., 237 
 
 Illegal [see Considebation] 
 
 Illegality 
 
 rebuts resulting trust on purchase in stranger's name, 67 
 
 Illegal Trusts, 83 — 86 
 not enforced, 83 
 of money to procure peerage, ib. 
 attempting to control limitations of peerage, ih. 
 immoral trusts arfe, ib. 
 against religion, ib. 
 for future illegitimate children, ib. 
 of testator, not, ih. 
 how bastards may take, ib. 
 for future separation, ib. 
 
 separation should follow on deed, 84 
 attempts to continue interest after bankruptcy, ib. 
 to restrain power of alienation, ib. 
 forfeiture on bankruptcy or alienation with gift over, 
 good, ib. 
 
 maintenance after bankruptcy, ib. 
 to restrain enjoyment after 21, ih. 
 
 by divesting settlement " on marriage," ib. 
 pleading, mode of, 85 
 failure of iUegal purpose, ib. 
 
 deed to defeat creditors, i6. 
 created under mistake as to legal effect of apprehended con- 
 viction, ii>. 
 perpetuities [see Rule against,] 152 
 accumulations [see Thellusson Act] 
 for superstitious purposes, 85 
 
 uncertain charitable purposes, ih. 
 against Statute of Mortmain, 82, 86 
 resulting trust, where trust is, 60 
 
 Illegitimate Children, 
 
 future, trusts for, illegal, 83 
 
 valid trusts for, ib. 
 
 advancement of, by purchase in name of, 65 
 
 of intestate, memorial by, to Crown, 244 
 
402 INDEX. 
 
 Immobality, 
 
 trusts void for [see Illegal Trusts ; Consideration], 83 
 
 Imperfect Gift [see Voluntary Trust] 
 
 Implied Teust, 
 
 to renew leases, 149 
 
 ■within Trustee Acts, 210 [see Constbuctivb Trusts] 
 
 bar of, by laches, 313 
 
 analogy to Statute in, ib. 
 s. 24 of Statute of Limitations, under, 314 
 
 Impounding, 
 
 interest of beneficiary concurring in breach of trust, 335 
 of trustee, ib. 
 
 in annuity, 336 
 
 income, ib. 
 legal life estate not liable to, ib. 
 right of, cannot be waived by trustee, ib. 
 
 Imprisonment [see Attachment] 
 
 for misappropriation of trust funds under Larceny Act, 281 
 
 Improvements [see Building ; Eepairs ; Power] 
 agricultural, power to make, 106 
 by building on land subject to trust foi sale, ib. 
 under 27 & 28 Vict. c. 114, 107, 134 
 advances for, 107 
 
 interest on, ib. 
 charge of, ou inheritance, ib, 
 lien for, of joint purchaser, 70 
 
 of constructive trustee of reaewed lease, 78 
 of trust estate bought by trustee, allowance for, 191 
 in cases of fraud, 192 
 
 Incapacity, 
 
 of c. q. t. gives trustee power to give receipts, where, 125 
 
 Income, 
 
 tenant for life's right to, of wasting property, 91 — 97 
 of residue, right of tenant for life to, 95 — 97 
 maintenance out of [see Maintenance] 
 excessive advancement made up out of, 181 
 arrears of, interest on, when payable by trustee, 284 
 
 Incumbrance, 
 
 priority of [see Notice] 
 
 on separate estate, lien of husband for payment of, 248 
 
INDEX. 403 
 
 Indemnity, 
 
 to trustees, under Lord St. Leonards' Act, 237 
 eifect of usual clause of, ib. 
 where trustee covered by, ib. 
 to retiring trustee, 207 
 
 on appointment by Court, 208 
 to trustees against leasehold covenants, 78, 121 
 to trustee for calls on shares, 140 
 
 married woman, 262 
 between trustees where no breach of trust, no equity for, 332 
 
 secus where breach of trust, ib. 
 by stranger benefited by breach of trust, ib. 
 
 India Stock [see Investment] 
 
 Indobsembnt, 
 
 incomplete voluntary trust by, ou share certificate, 29 
 
 on bond, ib. 
 
 on lease, ib. 
 of assignment of equitable interest on settlement, 234 
 
 Infancy 
 
 prevents bar to upsetting purchase of trust estate by trustee, 
 195 
 
 Infant [see Maintenance ; Advancement ; Guardian] 
 joint lessee, loss on renewal not borne by, 76 
 trustee removable, 212 
 
 retains right to assume trust at 21, 212 
 daughters, direction to settle " on marriage " of, void, 84 
 not damnified by merger of portion, 168 [see Poetions] 
 heir declared trustee for purchaser within Trustee Acts, 210 
 feme coverte being, cannot destroy separate use, 251 
 cannot concur in breach of trust, 334 
 release by, of breach of trust, 336 
 account of mesne profits in favour of, 323 
 
 Information, 
 
 by trustees, to be given to c. q. t., 229 
 withholding, ib. 
 as to notices of assignments, 289, 290 
 
 Inheritance, 
 
 charging, with expense of rebuilding, 107 
 
 under 27 & 28 Vict. c. 114, *. 
 right of, to timber, 107 
 
 Injunction 
 
 to restrain breach of trust, 279 
 co-trustee, ib. 
 
 D n 2 
 
404 INDEX. 
 
 Injunction — conHn ued. 
 
 bankrupt trustee, ib. 
 purchaser, ih. 
 trustees of charity, 280 
 appointment of new trustee, ih. 
 trustee for sale under mortgage, ib. 
 unauthorised sale by trustee, 113, 280 
 transfer by trustees, 301 
 none where trustee has paid to private account at 
 bank, ib. 
 to restrain proceedings as to lands abroad \see Foreign 
 Property] 
 
 In Loco Parentis, 
 
 advancement by one [s«e Resulting Trusts, 61 — 66] 
 legacy by person, maintenance out of, 172 
 
 by grandfather, ib. 
 grandmother, as to right to portions, 159 
 uncle, as to right to portions, ib. 
 
 Inquiry, 
 
 as to title, 144 
 
 as to ability of father to maintain children, 1 73 
 of mother during widowhood, 174 
 after second marriage, ih. 
 as to maintenance out of capital, 176 
 as to amount of maintenance for bankrupt, 178 
 not directed on advice petitions, 109 
 
 as to overpayment of income of wasting property to life- 
 tenant, 231 
 wilful default, as to [see Wilful Default] 
 as to concurrence in breach of trust [see Breach op Trust] 
 
 Insolvency, 
 
 receiver appointed, on, of trustee, 272 
 of trustee, liability of co-trustee on, 239 
 non-enforcement of debt by trustees on account of debtor's, 
 325 
 
 Instalments, 
 
 suing for, 88 
 
 Insurance [see Policy] 
 
 life, how applicable to renewal of lifeholds, 151 
 to secure fund advanced to wife under power, 179 
 in son's name, intention of advancement as to, 63 
 liability of trustees for, under testator's covenant, 100 
 
 for allowing life policy to drop, ib., 326 
 
 Insurance Office, 
 
 notice to, of assignment of policy, 30 
 
INDEX. 405 
 
 Intention 
 
 to vest legal estate in trustees, by will, 1 
 
 by deed, 9 
 to become trustee by parol declaration of trust, 33 
 of voluntary trusts not carried out, deed cancelled where, 31 
 
 reformed by consent, ib. 
 to keep of control of property subject to voluntary trust, 
 
 33—35 
 memorandum of, " to leave," &c., no trust, 34 
 to exclude heir from resulting trust must be express, 59 
 against resulting trust, of bounty to relations, ib. 
 that trust should result, evidence of, 60 
 of advancement, by purchase in son's name [see Resulting 
 
 Trusts, 61—66] 
 in will as to duty to renew leases, 148, 151 
 not to act as trustee should be shown by disclaimer, 10 
 
 mode of disclaimer [see Disclaimbe] 
 as to time of payment of portions [see Portions] 
 to bind separate estate, how shown, 260 
 restraint on anticipation, to impose, 266 
 
 Interest, 
 
 more than rents of property mortgaged, where, 142 
 on debts or legacies, right to, unaffected by delay in sale, 115 
 legacies, from the death, where, 115, 116 
 petition for advice as to, 110 
 on portions [see Portions] 
 proof for, against bankrupt trustee, 219 
 on rents of trust estate bought by trustee, 191 
 on price of trust estate bought by trustee, ib. 
 breach of trust, payable by trustees, on, 283 
 
 4 per cent, on uninvested balances, ib. 
 solvency no excuse, ib. 
 
 not more than 4 per cent, except for fraud, ib. 
 
 nor where trusts onerous, ib. 
 
 nor where legacy unpaid, ib. 
 
 nor where wrong payment bona fide 
 made, ib. 
 
 nor where security given at higher rate, 
 284 
 prayer for, not required, i6. 
 
 except for compound interest, ib. 
 certificate, not charged on sum found by, ih. 
 legal delay no ground for, ih. 
 Statute of Limitations does not affect, ib. 
 
 nor does 1 & 2 Vict. c. 110, ib. 
 
 5 per cent, where breach of trust direct, ih. 
 ground of rule, 285' 
 
406 INDEX. 
 
 * 
 
 Interest — contin ued. 
 
 not charged as penalty, ib. 
 where stock sold out, ib. 
 
 good securities called in, ib. 
 
 money kept with fraudulent intent, ib. 
 
 misrepresentation, ib. 
 
 false accounts, ib. 
 
 refusal to account, ib. 
 
 omission to hivest at "best " interest, ib. 
 receiver chargeable with, 286 
 bankruptcy trustee chargeable with, i6. 
 trade, on money embarked in, ib. 
 
 inquiry as to profits, ib. 
 
 interest or profits, not both, charged, ib. 
 
 interest as to part and profits as to part, 286 
 
 persons joining in risking trust-money in, 
 liable to, ib. 
 compoiivd interest where breach of trust to accumulate, 287 
 trade, embarking in, where trustee interested, ib. 
 
 or where profits to be capitalised, ib. 
 adding order as to, to decree, 328 
 attachment for non-payment of [see Attachment] 
 
 Intbeim Investment 
 
 of money to be laid out in land, 147 [see Investment] 
 
 Intbrlocutobt Application 
 
 for appointment of receiver, 272 
 
 ex parte, ib. 
 before writ, ib. 
 
 Interrogatories 
 
 as to plea of purchase without notice, 294 
 by defendant as to trusts, 193 
 
 Intestacy, 
 
 payment to Crown on, and default of next of kin, 236 
 
 Intestate, 
 
 widow of, right of, to share where no next of kin, 244 
 
 Investment, 
 
 delegation of trust for, to co-trustee, 1 7 
 improper, getting in, 87 
 receiver on omission of, 272 
 remedy for omission of, 324 
 
 compulsory payment into Court, where, 275 
 of balances, 87 
 not sanctioned by Court, to be sold, when, 91 
 
INDEX. 407 
 
 In vestment — con tinned. 
 
 power to continue, or vary, effect of, on duty to sell wasting 
 
 property, 93 
 opinion of Court, petition for, as to, 109 \see Advice Petitions] 
 deposit at interest in bank is not, 99 
 sums till, may be placed in bank, 98 
 left, how long, ih. 
 by bankers, order by trustees for, loss by, 99 
 in joint names of husband and wife, by liusband, effect of, 64 
 
 adding stranger's name, effect of, ih. 
 in names of settlement trustees, by husband, ih. 
 by widow in names of herself and child, ih. 
 
 daughter and her husband, ih. 
 voluntary trustee liable for loss by bad, 240 
 where no power of, 131 
 retention of Navy Fives instead of, ih. 
 on other than permanent securities, 132 
 under Lord St. Leonards' Act, s. 32, ih. 
 
 made retrospective by 23 & 24 Vict. c. 38, s. 12, ih. 
 rights accrued between the two Acts, ih. 
 under Lord CranwortKs Act, reinvestment under, 133 
 
 Acts probably not apply where no power to vary, 134 
 under s. 12 of 23 & 24 Vict. c. 38, as •' cash under control of 
 
 Court " may be invested, ih. 
 under Settled Estates Act, 1877, s. 36, as "cash under control 
 
 of Court," ih. 
 under Lynch's Act in Irish mortgages, ih. 
 practice under, 135 
 consent under, ih. 
 in Banh Stock under Lord St. Leonards' Act, 131 
 
 Order of 1 Feb. 1861, 133 
 change of, into Bank Stock, 135, 136 
 in Consols, where no power to invest, 131 
 
 where only power of, on mortgage, ib. 
 
 liability for fluctuations of, ih. 
 
 not variable without power, 132 
 
 of balances under Lord Cranworth's Act, s. 25, 
 
 133 
 transposition of, with consent of c. q. t., 134 
 in ^ Per Cents, under Order 1 Feb. 1861, 133 
 in Reduced, under Order 1 Feb. 1861, ih. 
 in New Threes, under Order 1 Feb. 1861, ih. 
 in Parliamentary Securities [see, in Government Securities^ 
 in Puhlic Securities [see, in Government Securities'] 
 on real security, [see On |4^,ohtgageJ 
 in Hast India Stock undeir Lord St. Leonards' Act, 131 
 retention of, 132 
 under Order 1 Feb., 1861, ib. 
 
408 INDEX. 
 
 Investment — continued. 
 
 since 30 & 31 Vict. o. 132, extends to all, 
 
 charged on revenues of India, 133 
 includes " India Stock," ib. 
 
 not Indian Railway Stock, ib. 
 under Lands Clauses Act, 134 
 change of, into East India Stock, 135 
 in East India Stock, loss by redemption of, 236 
 in Indian Railway Stock not within 30 & 31 Vict. c. 132, 
 
 s. 1, 133 
 in Exchequer Bills under Order 1 Feb., 1861, 132 
 
 for temporary purposes, 100 — 132 
 
 by the Court, ib. 
 in East India Stock instead of, 134 
 in Foreign funds, includes what, 139 
 
 French railway shares, ib. 
 American securities, ib. 
 in Government securities,liabi\itj for fluctuation in, 131 
 
 or " good securities," retention of Navy Fives, 
 instead of, ih. 
 of East India Stock, ib. 
 where interest to be paid on certain 
 
 days, 132 ' 
 in Exchequer Bills, as, ib. 
 under power of, trustees may invest in same as cash in Court, i6. 
 of balances, and transposition with consent of c. q. t., 133, 134 
 guaranteed by Parliament, under 30 & 31 Vict. c. 132, s. 2, 134 
 in Metropolitan Consolidated Stock under power of, ib. 
 
 where fund in Court, ib. 
 "Public Stocks" what are, 139 
 in Debenture Steele, 134 
 
 foreign, 139 
 in Railway Stock, ib. 
 in Railway Preference Stock, 132, 139 
 
 charged on profits only, 139 
 with fixed rate of interest, i'v. 
 transferable into single name, ib. 
 in new shares, ib. 
 liability of trustees for calls, 140 
 notice of trust not received by company, ib. 
 apportionment of coupon, ib. 
 
 change of into higher dividend-paying security, 135 
 where tenant for life's income adequate, ib. 
 where settlor having power of revocation desires it, ih. 
 to increase fund for maintenance, ib. 
 to secure specified income, ib. 
 
 wliere aged childless woman entitled absolutely in 
 default of issue, 1 36 
 
INDEX. 409 
 
 Investment — continued. 
 
 mode of preventing three dividends on, ib. 
 claim for trust stock transferred to National Debt 
 Commissioners, 144 
 in trade, 137 
 
 rights of creditors on, ib. 
 on personal security : what is, 136 
 
 not permitted without power, ih. 
 solvency of debtor no excuse, ib. 
 discretion as to, ih. 
 
 iinder power to " place out at interest,'' ib. 
 not to risk money in trade, ib. 
 to " lend at best security," ib. 
 promissory note only evidence of debt, ib. 
 distinction between getting in, and, 137 
 loan to banker, ib. 
 
 deposit in bank is not investment, 99 
 on bond, 136 
 
 solvency of debtor, ih. 
 
 concurrence of sureties, 137 
 
 under power to invest on real, heritable, or personal 
 
 security, ib. 
 renewal of, on majority of minor, 138 
 on promissory note, 136 
 
 solvency of acceptor, ib. 
 under power to lend on " best security," ib. 
 of banker, bearing interest, 137 
 consent of c. q. t. as to, ib. 
 of trustees, ib. 
 ex post facto, 138 
 in writing, ib. 
 loan to husband, 137, 138 
 to co-trustee, 138 
 to tenant for life, ih. 
 
 to A. and B. authorises loan to either, ib. 
 renewal of to minor on majority, ib. 
 on equital)le deposit of deeds, 138 
 in land, 
 
 ■waiver of defects of title on, ib. 
 title, good holding, enough, 144 
 
 reference by Court as to, form of, ih. 
 waiver of defects on, ib. 
 ■40 years' under Vendor and Purchaser Act, 1874, ib. 
 when less than, ib. 
 Vendor and Purchaser Act, trustees need not exclude, ib. 
 
 1. lessor's title need not to be asked for, ib. 
 
 2. recitals 20 years' old binding, 145 
 
 3. equitable right to production of deeds sufficient, ih. 
 
410 INDEX. 
 
 Investment — continued. 
 
 4. costs of covenant to produce, ib. 
 
 5. right to retain deeds, ib. 
 decision of Judge, ib. 
 
 presumption of, in accordance with trust, 305 
 poverty of trustee no guide, ib. 
 ground of, ib. 
 identity of price, 306 
 following trust money into land purchased with it [see Fol- 
 lowing Trust Estate], ib. 
 under trust to sell and re-invest in land, 146 
 
 implied power of sale of purchased land, ib. 
 discretion as to, not controlled by Court, ib. 
 
 alteration of rights by exercise of, ib. 
 on request of c. q. t., ib. 
 
 inquiry as to, ib. 
 with sale moneys of gavelkind lands, ib. 
 house property, purchase of, under power of, ib. 
 
 where fund in Court, ib. 
 freehold ground rents, ib. 
 copyholds for lives, ib. 
 leaseholds for lives, 147 
 mines without surface, ib. 
 wood estate, ib. 
 equity of redemption, ib. 
 advowson, ib. 
 
 where to purchase with all convenient speed, ib. 
 apportionment of dividend where stock sold for, ib. 
 specified estate, in, ib. 
 interim investment till completion of, ib. 
 on mortgage under Lord St. Leonards' Act, 131 
 where no power of, ib. 
 remedy, 324 
 where trust to invest in Consols, 131 
 where no trust to invest, ib. 
 in Exchequer Bills until, 132 
 under Order, 1st Feb., 1861, ib. 
 under Land Improvement Act, 1864, 134 
 by charities and corporations, under 33 & 34 
 
 Vict. 0. 34, ib. 
 in Ireland under Lynch's Act, 133, 134 
 trust for, does not authorise bond, 137 
 by deposit of deeds, 138 
 
 of freehold land, not more than two-thirds of 
 value, 140 
 
 house, not more than half, 141 
 copyhold, ib. 
 hotel, ib. 
 
INDEX. 41 1 
 
 Investment — continued. 
 
 place of amusement, ih. 
 trade property, ib. 
 renewable leaseholds, ib, 
 deficient security, liability for, ou, ib. 
 valuation on, ib. 
 
 by mortgagor, ib. 
 by c. q. t.jib. 
 
 of speculative property, ib. 
 trade property, ib. 
 unfinished houses, ib. 
 freehold ground rents, 142, 143 
 where rental less than interest, ih. 
 re-valuation on re-investment, ib. 
 
 fresh incumbrances, liability where, I'S. 
 improper advance, liability of dead trustee on, ib. 
 second mortgage, ib. 
 deed to be executed, ib. 
 
 different solicitor from borrower's to be em- 
 ployed, ib. 
 fraud or forgery by solicitor, 142 
 "real security" does not include leaseholds, 143 
 
 life interest, ib. 
 judgment, ib. 
 Scotch mortgages, ih. 
 turnpike bonds, ib. 
 railway mortgages, ii. 
 of leaseholds, length of term on, ib. 
 
 not under power to advance on 
 " land," ib. 
 stock mortgage, ib. 
 without power of sale, ib. 
 rate of interest where trustees benefited, 143, 
 
 324 
 of co-trustee's property, 143 
 receipt on, under power to invest " in securities," 
 125 
 
 " on security," ii>. 
 under power to vary, ib. 
 
 Ireland, 
 
 provisions of Thellusson Act, extend to, whether, 153 
 mortgages of land in, under Lynch's Act [see Investment] 
 mortgage of judgment in, whether breach of trust, 143 
 attachment for disobedience of order in, 277 
 
 Irrevocable Trusts 
 
 for creditors [see Creditors] 
 
412 INDEX. 
 
 Issue, 
 
 in articles construed to include females, 46 
 
 in wills, remainder over in execatory trusts, to, 48 
 
 on death without, ih. 
 included in " heirs of the body,'' where, 49 
 male, failure of, daughters taking portions on, 161 
 probability of, with regard to changing investment in favour 
 of life-tenant, 136 
 
 Jewels, 
 
 separate estate in, disposal of, 261 
 executory trust to take, as heirlooms, 51 
 
 Joint and Seveeal Liability [see Breach of Trust] 
 
 Joint Lessee, 
 
 renewal by [see Constructive Trusts] 
 
 Joint Tenancy [see Secret Trusts], 81 
 
 construed tenancy in common in articles, 46 
 
 in wills, where, 49 
 limitation in articles to "children" imports, 46 
 of donee and children under precatory trust, 57 
 
 Jointure, 
 
 power to, is not " usual power " in settlement, 50 
 where prior to portion trust, 163 
 purchase of, by receiver, 188 
 
 Judgments, 
 
 notice of, does not affect purchaser, when, 129 
 
 Judgment Creditor [see Creditor] 
 notice gives no priority to, 291 
 
 Jurisdiction, 
 
 discretion of Court of co-ordinate, 175 
 of Chancery Division in bankruptcy matters, 188 
 over trusts of foreign property [see Foreign Property] 
 out of, trustee going, ne exeat, where [see Ne Exeat] 
 receiver where, 273 
 c. q. t. taking title deeds, 226 
 trustees accounting where vouchers with agent out of, 18 
 
 Laches [see Delay ; Statute of Limitations] 
 
INDEX. 413 
 
 Land, 
 
 following trust money into, 304 [see Following Trust 
 Estate] 
 
 Lease, 
 
 trust to, for indefinite time, passes fee, 6 
 
 effect of Wills Act in such case, i6. 
 same with, duty to pay taxes and repair, ib. 
 by trustees to themselves, 185, 186 
 
 under power, 18-5 
 
 to relative of trustee, ib. 
 
 of trust estate bought by them, 192 
 of trust estate to himself, remoyal of trustee, after, 215 
 by agent to himself, 185 
 by special agent, 186 
 
 by tenant for life, under a power, to trustee for himself, ib. 
 by married woman [see Separate Estate] 
 surrender of, power to take, passes legal fee, 6 
 trustee cannot grant, without power, 102 
 definite power to, gives legal estate while it lasts, 8 
 power to, petition for advice as to, 109 
 power to grant, is " usual power " in settlement, 50 
 building, power to grant, is " usual power," ib. 
 on fines by trustees, to pay debts, not where forbidden to sell 
 
 155 
 not authorised by power of sale, 123 
 to raise portions [see Portions] 
 
 agreement for, equitable interest in, voluntary trust of, 28 
 renewal of [see Renewal of Lease] 
 
 Leasehold 
 
 duration of legal estate in, 2 
 
 not within Statute of Uses, 1 
 
 vesting legal estate in, in trustees, ib. 
 
 renewal of, by trustees and others [see Constructive Trusts ] 
 
 renewable, mortgage of [sea Investment] 
 
 for lives, investment in, 147 
 
 production of lessor's title on purchase of, 145 
 
 executors, 124 
 covenants in [see Covenant] 
 indemnity to trustees against covenants of, 121 
 -mortgage of, not within power to lend on real security or 
 " land," 143 
 length of term required, ib. 
 mortgage instead of sale of, 122 
 to be sold as part of residue, when, 91 
 not if specifically given, 92 
 sale of, petition for advice as to, 109 
 
414 INDEX. 
 
 Leasehold — continved. 
 
 and reversion may be sold together, 117 
 liability of trxistees for insurance of, 100 
 notice, doctrine of, not applicable to, 291 
 
 Leave, 
 
 of Court, to apply to Parliament, 103 
 
 to bring or defend an action, ih. 
 to bid, when given to trustees, 184 
 
 to partner for partner's share, 188 
 
 Legacies, 
 
 trustees to pay debts, &c., take legal fee, 6 
 
 unless a less estate is intended, 7 
 charge of, effect of, on passing legal estate, 4 
 
 prevents trust estates passing by general devise, 21 
 power to give receipts where [see Eeceipt of 
 
 Tbusteb] 
 on land, clearing title by payment of, 101 
 remains on renewed lease, 77 
 creates no express trust, 311 
 express trust to pay not saved by Eeal Property Limitation 
 Act, 1874, 306, 312 
 when barred, ih. 
 debts barred but directed to be paid do not lapse as, 39 
 
 but subject to legacy duty, ib. 
 acceptance by executor of trusts of, by assenting to them, 1 3 
 
 by appropriating them, ib. 
 to children, maintenance out of, 171 
 
 where accumulation directed, 173 
 for education, application of, 180 
 separate, under Married Women's Property Act, 250 
 to trustee if annexed to office not payable if he does not act, 200 
 
 no bar to remuneration, ib. 
 non-investment of, remedy for, 324 
 interest on, right to, unaffected by delay in sale, 115 
 retentiou of, by trustee, where, 110, 283 
 where from the death, 115 
 payment of, out of income of first year, 96 
 refunding, 231 
 
 petition for advice as to receipt for, 109 
 Crown takes where no next of kin subject to, 244 
 
 Legacy Duty, 
 
 in case of secret trust for charity, 82 
 
 Legal Estate, 
 
 g, in trustees, 1 — 9 
 
INDEX. 415 
 
 Legal Estate — continued. 
 
 by will, 1 
 by deed, 8, 9 
 taken by trustees if given by words, 8 
 
 unless inconsistent, ih. 
 passes under devise to receive and pay rents, 3 
 to pay clear rents, ib. 
 
 net rents, ih. 
 where receipts with approval of trus- 
 tees, ib. 
 where trustees to give receipts, ih. 
 where separate use, ih. 
 in trust for maintenance, ib. 
 ' to pay debts, ib. 
 
 debts and legacies, 4 
 until debts paid, ib. 
 
 money raised, ih. 
 on devise of freeholds, 1 
 
 copyholds, ih. 
 freeholds and copyholds, 3 
 on trust of leaseholds, 1 
 quantum of, independent of nature of property, 2 
 
 under Wills Act, whole fee or term to pass unless 
 
 less given by will, s. 31, 4 
 s'ame where no beneficial life estate, or trusts last 
 
 beyond life, s. 32, ih. 
 extent of, in term, 2 
 
 vests if trustees have duties to perform, ih. 
 primd facie devise to trustees and their heirs 
 
 passes fee, 4 
 secus if not required, 5 
 trusts indefinite, not cut down, where, ib. 
 onus on those who say less intended, ih. 
 where trust to pay annuities, ih. 
 in fee, trustees take, under what devises, ib. 
 upon trust to sell, ib. 
 
 to mortgage, ib. 
 where power to take- surrender of lease legal fee 
 passes, 6 
 fee, taken on devise in trust to pay debts, ib. 
 or debts and legacies, ih. ■ 
 unless a less estate is intended, 7 
 under indefinite power to lease, 6 
 effect of Wills Act in such case, ib. 
 where duty to repair and pay taxes, ib. 
 with power to cut timber, ib. 
 by executors under indefinite devise, 7 
 by " trustees of inheritance," ih. 
 
416 INDEX. 
 
 Legal Estate — covtimied. 
 
 by trustees " as also their heirs and assigns," ib. 
 ■where contingent remainder to be preserved after 
 life estate, 6 
 trustees retain fee taken, where power of sale to pay 
 debts, ib. 
 devises under which, does not pass, 2, 3 
 to A. to use of B. , 2 
 
 to " permit and suffer " rents to be received, ib. 
 to " pay or permit," ih. 
 to " pay or permit and suffer," ib. 
 charge of debts, ib. 
 
 where equitable estate only devised, ib. 
 where trusts fail, 3 
 where it passes to trustees hy deed, 9 
 
 trust to preserve after legal life estate, ib. 
 power of appointment before legal gift over, ib. 
 power under which contingent remainders could be 
 created, ib. 
 not cut down by equitable term in other trustees, 9 
 
 power of leasing in tenants for life, ib. 
 less than fee taken by trustees, where, 7 — 8 
 on devise to transfer copyholds, 7 
 where prior legal life estate, 8 
 definite leasing power, ib. 
 estate pur autre vie expressly given, ib. 
 for maintenance during minority, ib. 
 legal gifts over, ib. 
 until contingent remainders cease, ib. 
 pur autre vie, when taken by trustees, 7 
 chattel interest, when taken, ib. 
 unexhausted by trusts, resulting trust, where, 58 
 seals where, given for particular purpose, ih. 
 devise of, in trust and mortgage estates, 21 — 24 
 
 \see Devise of Trust Estates] 
 outstanding, conveyance of, 122 
 
 protection to separate estate by, 247 
 disclaimer of one trustee, vests, in others, 1 1 
 vests in heir, when all trustees disclaim, 12 
 conveyance of, by trustees [see Conveyance] 
 
 to alienee by trustees to separate use, effect 
 of, 258 
 transfer of, where c. q. t. has disposed of equitable estate, 206 
 to be transferred on voluntary settlement of equitable estate, 
 
 28 
 voluntary trust of equitable estate not void by getting in, 35 
 Crown, when vested in, how trust enforced, 242 
 escheat and forfeiture of, abolished, 243 
 
INDEX. 417 
 
 Legal Estate — continued 
 
 title to, of purchaser without notice, may be shown by deed 
 disclosing trust, 294 
 defective, not aided, ib. 
 equal equities, where, ib. 
 got in after notice, no protection, 296 
 
 by equitable mortgagees, 297 
 from trustee for mortgagees, ib. 
 from trustees of term, ib. 
 
 Legal Right, 
 
 compelling trustee to enforce [see Trustee] 
 
 Legatee, 
 
 refunding by, 40, 329 
 
 Lessee, 
 
 within Act of Eiizabeth, 36 
 
 Lessor, 
 
 lease by, without consideration, results to, 6,0 
 except to wife or child, ib. 
 
 Letter, 
 
 voluntary trust by, 31 
 
 signature of, 32 
 
 Letters Patent, 
 
 trust of land declared by Crown, by, 242 
 
 Lex Loci \_see Foreign Property] 
 
 Liability 
 
 on shares, reason for speedy sale, 89 
 none for not accepting compromise, 88 
 of co-trustees for misappropriation of dividends, 15 
 
 rents, 15 
 «^ of trustee on not executing transfer to new trustee, 207 
 of trustee for defaults of co-trustee [see Co-Trustee] 
 for breach of trust [see Breach op Trust] 
 
 Lien, 
 
 on deeds for money advanced by trustees out of pocket, 102 
 of consignee on West Indian estate, 199 
 of joint purchaser for improvements, 70 
 for expenses of renewal, of constructive trustee of renewed 
 
 lease, 78 
 for improvements, ib. 
 of tenant for life, 78, 1 50 
 of husband for payment of charge on separate estate, 248 
 vendor's [see Vendor] 
 
418 INDEX. 
 
 Life Estate [see Tenant for Life] 
 
 after legal, in a deed, trust to preserve requires legal fee in 
 
 trustees, 9 
 mortgage of, not within power to lend on real security, 143 
 
 Limitation, 
 
 of legal estate [see Eegal Estate] 
 
 words of, "heirs of the body" construed as, in executory 
 trusts, where, 44 
 
 Limitations [see Statute of Limitations] 
 
 Limited Owners' Eesidences Act, 1870 
 building mansion-houses under, 106 
 
 Liquidation, 
 
 separate estate in, rights against, 265 
 
 Livelihood, 
 
 gift for, of wife, where creates separate use, 248 
 
 Loan, 
 
 to husband [see Investment] 
 
 out of separate estate, 249 
 
 Long Annuities, 
 
 to be sold when, 91 — 97 
 
 if annuity charged on them, 93 
 
 Loss, 
 
 by voluntary trustee, 240 
 liability for, by robbery, 98 
 fraud, ib. 
 
 failure of bank, 98, 99 
 by postponement or acceleration of sale, 116 
 of part of estate, form of order appointing new trustees after, 
 
 207 
 improvement of part of trust estate not excuse for, of the 
 
 rest, 327 
 of title-deed, effect of, on right of c. q. t. to conveyance of 
 
 legal estate, 223 
 following trust funds dissipated by, not possible, 301 
 receiver appointed on, of part of trust fund, 272 
 
 Lots, 
 
 sale by trustees in, 112 
 
 Lunatic [see Maintenance ; Committee] 
 " unable to act," trustee found, is, 211 
 
INDEX. 419 
 
 Lunatic — continued. 
 
 wife, cannot consent to dealing of husband with separate 
 
 estate, 249 
 not barred by possible discovery of fraud, 322 
 
 Lynch's Act [see Investment] 
 
 Maintenance, 
 
 trust for, gives legal estate till 21, 8 
 conversion of wasting property given for, when, 93 
 change of investment to increase fund for, 135 
 excessive advancement made up out of fund for, 181 
 out of portions [see Portions] 
 and support not enough to create separate use, 256 
 of husband out of separate estate, 263 
 of children out of separate estate, ih. 
 of lunatic wife out of separate estate, 249 
 statutory power of, under Lord Cranworth's Act, s. 26, 171 
 not retrospsctive, ib. 
 not available between 21 and 25, ib. 
 petition for advice as to, 109 
 
 general power to give, out of legacy by parent, 171 
 by person in loco parentis, 172 
 to grandchildren, ib. 
 where accumulation directed, 173 
 power of, is " usual power " in settlement, 50 
 out of contingent legacies, by Court, 172 
 
 where gift over to persons not in 
 esse, ih. 
 to unborn children, 
 ib. 
 out of future legacy, intention as to, ib. 
 extends till 21, though given for less period, 173 
 by trustees, without power, where, ih. 
 father's ability, discretion as to, notwithstanding, ih. 
 inquiry as to, ih. 
 
 power of trustees not controlled by, ih. 
 trust, to be performed without regard to, ih. 
 
 unless settlement voluntary, ih. 
 insolvency need not be shown to rebut, 174 
 mother's ability, inquiry as to, ih. 
 
 after second marriage, ib. 
 after removal from father's custody, ib. 
 past, right of father to, ib. 
 mother to, ib. 
 stranger, l76 
 where allowed, ih. 
 
 E E 2 
 
420 INDEX. 
 
 Maintenance — continued. 
 
 what allowed as, 176 
 how raised, ib. 
 discretion as to, when interfered with by Court, ih. 
 after action, 175 
 
 payment into Conrt, ib. 
 of Conrt of concurrent jurisdiction, ib. 
 implied trust for, ib. 
 of adult daughter, ib. 
 son, ib. 
 idiot, ib. 
 amount of, ib. 
 
 discretion to increase, ib. 
 includes education, when, ib. 
 past income for, power to apply, ib. 
 opinion of Court as to [see Advice Petitions] 
 out of capital, payment of, by Court, 176 
 by trustee, ib. 
 inquiry as to, ib. 
 two funds for, out of which to be raised, ib. 
 defeasible and absolute, 177 
 where wrong fund applied, ib. 
 discretion as to which fund, ib. 
 account as to money applied for, ib. 
 after bankruptcy of life-tenant, ib. 
 
 discretion as to, ib. 
 
 alternative, 178 
 receiver where trustees neglect to raise, 273 
 
 Majoeitt, 
 
 restrictions on enjoyment after, void, 84 
 
 vesting and payment of portions at [see Portions] 
 
 of charity trustees can bind minority, 15 
 
 Management [see Advice Petitions] 
 power of, [see Powee] 
 
 when it gives possession to trustees, 221 
 is "usual power" in settlement, 50 
 
 Manager, 
 
 receiver and, of business, 273 
 
 Manor 
 
 waste of, grants of, by trustees, 107, 108 
 
 Mansion-house, 
 
 power to rebuild, 105 
 
 make lateral additions to, ib. 
 repair, 105, 106 
 
INDEX. 421 
 
 Mansion-house — continued. 
 
 building under Limited Owners' Residences Act, 1870, 106 
 
 on land subject to trust for sale, ih. 
 possession, right to, of c. q. t., 221 
 
 Maeeiage, 
 
 consideration of, position of remaindermen as to, 32 
 voluntary settlement hy feme sole, till, 32 
 consent to, power of trustees to, [see Consent] 
 advancement on, 179 
 vesting and payment of portions on [see Poetions] 
 
 Marriage Aeticles, 
 
 executory trust in [see Exbcutoey Trusts] 
 
 Maeeiage Settlement, 
 
 separate use, contract for, in, 248 
 
 where property not vested in trustees, ih. 
 
 Married Woman [see Separate Estate] 
 
 legal estate passes to trustees where separate use for, 3 
 
 separate use, entitled to, may call on trustees to convey legal 
 estate, 223 
 
 direction to settle on, too vague, 50 
 
 voluntary trust declared by husband for, 32 
 proof of separate use, ib. 
 of promissory note, ib. 
 
 consent of, in Court to transfer to husband, ih. 
 
 ■where trustee under secret trust, marital right also subject 
 to it, 81 
 
 trustee cannot contract for sale, 114 
 
 share of, in partnership assets, 71 . 
 
 advancement out of fund of, to husband, 179 [see Advance- 
 ment] 
 
 appointment by will of, payment under, 232 
 
 selling trust estate to trustee must acknowledge deed, 184 
 
 release by, of breach of trust, 337 
 
 concurrence of, in breach of trust, 334 
 
 knowledge of husband does not bind, ib. 
 
 liability of separate estate of, for breach of trust, ib. 
 
 following trust estate into hands of husband, 303 
 
 Married Women's Propeett Acts [see Separate Estate] 
 
 Marshalling 
 
 in favour of portionists, 166 
 between creditors and portionists, ih. 
 
 Memoeandum 
 
 of intention "to leave," &c., no trust, 34 
 
422 INDEX. 
 
 Memorial , 
 
 by illegitimate children of intestate, 244 
 
 Merger 
 
 of portions [see Portions] 
 
 Meritorious Consideration [see Consideration] 
 
 Mesne Profits, 
 
 account of [see Statute of Limitations] 
 
 by trustee purchasing trust estate 191 
 
 Mines 
 
 without surface, investment in, 147 
 
 sale of surface without, under Settled Estates Act, s. 19, 118 ; 
 by trustees, under 25 & 26 Vict. c. 
 108, ib. 
 petition under, ib. 
 sale of, to raise portions, 165 
 
 pay debts, 154 
 renewal of lease of, by partner [see Constructive Trusts] 
 
 Minor [see Minority; Maintenance; Advancement; Portions; 
 Infant] 
 
 Minority [see Infant ; Advancement ; Portions] 
 maintenance during [see Maintenance] 
 accumulation during, iinder Thellusson Act, 153 
 of unborn child, accumulation not allowed during, 154 
 
 how far good, ib. 
 trust of term during, 2 
 of trustee, no excuse for delay in selling, 115 
 of charity trustees bound by majority, 15 
 
 Misapplication [see Breach op Trust] 
 
 by CO- trustee,_ liability of trustee for [see Co-trustee] 
 
 by solicitor, 19 
 
 by stranger, 100 
 
 by broker, ib. 
 
 possible, by representative of c. q. t. no excuse for non-payment 
 
 by trustee, 232 
 of money due on husband's bond, 87 
 
 Misappropriation [see Breach of Trust] 
 
 co-trustees liable for, of rents received by co-trustee, 15 
 dividends, ib. 
 
 Misdemeanour [see Criminal Liability] 
 , trustee, misappropriation by, is, 281 
 
INDEX. 423 
 
 Misdescription 
 
 by trustees, 121 
 
 compensation for, ib. 
 
 Misrepresentation [see Fraud] 
 
 of c. q. t.'s interest by trustee, 232 
 interest payable by trustees for, 285 
 
 Mistake, 
 
 rectification of settlement on ground of, when not according 
 
 to articles, 45 
 illegal trust founded oq, 85 
 investment by, in unauthorised securities, 143 
 bar by acquiescence in case of, 318 
 as to feme covert's interest in separate estate, 260 
 as to fund out of which maintenance ought to be given, 177 
 payment by trustee to wrong person by, 230, 231 
 interest where wrong payment by, 283 
 mesne profits in case of, 323 
 
 Mixed Fund [see Blending ; Following Trust Estate] 
 
 Mixing [see Blending ; Following Trust Estate] 
 
 trust funds by trustees with their own, following money after, 
 
 301, 302 
 accounts of trust with trustee's private accounts, 228 
 
 Money [see Following Trust Estate] 
 what, passes as separate estate, 252 
 
 Mortgage [see Mortgagor ; Mortgagee ; Equity op Redemption] 
 petition for advice as to, 109 
 Trustee Acts do not apply to, where, 210 
 power to, authorises mortgage with power of sale, 123 
 under 23 & 24 Vict. c. 125, s. 11, ih. 
 by executors, ib. 
 by Court, ib. 
 investment on [see Investment] 
 investment on, instead of Consols, remedy for, 324 
 non-investment on, by solicitor-trustee, remedy for, ib. 
 not authorised by trust for conversion, 122 
 
 where leaseholds given in succession, ib. 
 
 where charge to be raised, ib. 
 
 supported as being conditional sale, ib. 
 
 where no mode of raising charge pointed out, ib. 
 
 onus to prove necessity for, 123 
 
 by executors, ib. 
 
 remedy of mortgagee, ib. 
 should be called in, when, 90 
 trustees should not leave purchase-money on, 120 
 
424 INDEX. 
 
 MoETGAGB — continued. 
 
 for making payments, trustees to, take fee, 5 
 
 trust to pay debts authorises, 101 
 
 trustees may not, to pay debts, when forbidden to sell, 155 
 
 trust for sale to pay off, allows sale subject to, 124 
 
 to secure costs, 190 
 
 receipt for money on, under Lord St. Leonards' Act, 124 
 
 debt [see Debts] 
 
 by trustees for expenses of renewal, 148 
 
 on renewal of leases by life-tenant keeps down interest on, 151 
 
 rights of mortgagee in, voluntary trust of, 30 
 
 injunction to restrain sale by trustee under, 280 
 
 by eldest son, effect of, on right to portion, 158 
 
 by trustees to raise portions [see Portions] 
 
 raising portions by, effect on vesting, 160 
 
 by tenant for life of fee, 226 
 
 does not prevent his appointing new trustee, 
 214 
 by father, effect of, on gift by way of advancement, 66 
 joint [see Resulting Trusts, 69 — 71] 
 by married woman restrained from anticipation, 267 
 widow when entitled to dower of land in, 269, 270 
 equitable, by deposit of deeds in hands of co-trustee, 240 
 proof against bankrupt trustee where money traced into, 219 
 for value without notice [see Following Trust Estate] 
 not an express trust under Statute of Limitations, 310 
 though taken by way of trust for sale, ib. 
 
 in the name of a trustee for mortgagee, ib. 
 secns, as to trust of surplus sale moneys, ib. 
 
 as to exercise of power of sale in case of fraud, ib. 
 
 Mortgagee [see Mortgage ; Mortgagoe ; Equity of Redemption] 
 purchasing from mortgagor, rule as to, 186 
 under power of sale, ib. 
 equity of redemption, ib. 
 
 where mortgagor distressed, ib. 
 by solicitor-mortgagee, ib. 
 second mortgagee, ib. 
 
 where trustee for sale 187 
 renewal by, in his own name, subject to old equity of redemp- 
 tion, 75 
 by mortgagor, enures for, 76 
 let into possession to manage, not entitled to bonus, 196 
 partner of auctioneer not to charge commission on sale by 
 
 firm, 197 
 in possession not to charge for receiving rents, ib. 
 may employ receiver or bailiff, ib. 
 of colonial estate, ib. 
 
INDEX. 425 
 
 MoETGAGEE — continued. 
 
 cannot contract with mortgagor for allowance as receiver, 201 
 solicitor who is, cannot charge profit costs for defending his 
 title, 197 
 cannot have commission on rents, where, ib. 
 rights of, voluntary trust of, 30 
 
 dying, share of, goes to executors, 69 \_see Resulting Trusts] 
 equitable, gets no better title by the legal estate of the mort- 
 gagor-trustee, 297 
 subsequent, within Act of Elizabeth, 36 
 
 Mortgage Estate [see Devise op Trust Estates] 
 
 Mortgagor \_see Mortgagee ; Mortgage] 
 sale by, to mortgagee, 186 
 renewal by, enures for mortgagee, 76 
 agreement by, to give mortgagee allowance as receiver, 201 
 
 Mortmain [see Perpetuities, Eulb against] 
 
 secret trust in fraud of statute of, 82 
 by reserving life interest, ib. 
 devise to take effect on death within year, ib. 
 mortgages by corporation or charity not in, 134 
 
 Motion, 
 
 for compulsory payment into Court by trustees, 274 — 276 
 for ne exeat against trustee [see Ne Exeat] 
 
 National Debt Commissioners, 
 
 petition for payment of money transferred to, 144 
 
 Naturalisation [see Alien] 
 
 Nb Exeat, 
 
 where granted, 280 
 
 demand must be equitable, ib. 
 
 interest must be present, ib. 
 
 or vested liable to divest, ib, 
 practice as to, 281 
 
 Neglect [see Wilful Default] 
 
 Nbgligbnce [see Laches ; Wilful Default] 
 
 ulterior consequences of, trustees liable for, 328, 329 
 of solicitor, liability of trustees for, 142 
 of trustee, as to advancement, 180 
 interest payable by trustees for, 283 
 
 New Three Per Cents, [see Investment] 
 
426 INDEX. 
 
 New Trustees, 203—215 
 
 appointment of, under Oranworth's Act, 203 
 petition for advice as to, 109 
 increase of number on, 203 
 power of, is "usual power," 50 
 
 does not prevent devisee of trust 
 estates acting, 23 
 death of donee of power of, 203 
 rectification of power of, 204 
 separation deed, of, ih. 
 creditors' deed, of, 40 
 no power of, Court appoints, wliere, 204 
 no trustees appointed by testator. Court ap- 
 points, where, ib. 
 refusal of all trustees to act, on, ib. 
 body of trustees ceasing to exist, where, ih. 
 de facto trustees, by, ib. 
 corrupt, ib. 
 
 set aside, ih. 
 discretion as to, ib. 
 pendente lite, 205 
 
 parties to action, ih. 
 injunction to restrain, 280 
 reference to chambers of, 205 
 fitness, evidence as to, on, 205 
 fund in Court, of, ih. 
 death of trustee in testator's life, on, ih. 
 retirement on, capricious, of old trustee, ih. 
 where questions arise, 205, 206 
 refusal of c. q. t. to allow, 20G 
 where doubtful if trust at an end, ib. 
 transfer to new trustee and continuing trustee 
 
 on, 206 
 execution of deed on, 207 
 want of confidence in co-trustee, because of, ib. 
 indemnity on, ib. 
 
 by Court, 208 
 where new trustee cannot be found, 207 
 order for, where part of estate lost, 207 
 " dying, declining or becoming incapable," on, includes retiring, 
 
 208 
 "refusing or declining to act," payment in is, ib. 
 disclaimer is desire to retire, ib. 
 
 settlor may appoint on, 10, 208 
 
 costs, 11 
 " surviving trustee " may appoint on, ib. 
 reserving power notwithstanding, ih. 
 "acting in the trusts" does not avail if all decline to act, 208 
 
INDEX. 427 
 
 New Trustees— continued. 
 
 breach of trust, notice of, 207 
 
 assignments, notice of, inquiry need not be made by, 234 
 executor, refusal of, to undertake trust, where, 206 
 renunciation by, 208 
 
 of surviving trustee must transfer to, 214 
 " surviving or continuing " does not avail where all retire, 208 
 secus, where survivor retires, 209 
 
 where one becomes bankrupt, ib. 
 sets of trustees, where there are, 209 
 felony of trustee, on conviction for, ib. 
 bankruptcy, on, of trustee, makes him " unfit to act," ib. 
 though discharged, ib. 
 by the Court, ib. 
 
 under Bankruptcy Act, 1869, s. 117, ib 
 not " incapable to act" on, 219 
 * abroad, where trustee, 210 
 permanently, ib. 
 temporarily, ib. 
 mortgagee not within Trustee Acts as to, ib. 
 
 where trusts created, ib. 
 constructive trusts within Trustee Acts as to, ib. 
 implied trusts within Trustee Acts as to, ib. 
 infant heir declared trustee, ib. 
 lunatic is "incapable to act," 211 
 selection of persons for, rules as to, ib. 
 relations, ib. 
 tenant for life, ib. 
 cestui que trust, ib. 
 husband, ib. 
 solicitor to the trust, ib. 
 foreigner, 212 
 infant, ib. 
 female, ib. 
 number of trustees may be increased ib. 
 
 notwithstanding Cranworth's Act, 203 
 diminution of, breach of trust, when, 212 
 by Court, when, ib. 
 sole trustee, where, 213 
 
 funds not paid out to, ih. 
 retirement of, ib. 
 given number, reduction to, ib. 
 conveyance by single deed to, ib. 
 
 tenant for life, appointment by, after sale or mortgage, 214 
 nomination after, nominee is a trustee, ib. 
 nominee may exercise powers, ib. 
 
 pending appointment of, payment of money into a bank, 19 98 
 powers exercisable after appointment of, 214, 215 
 
428 INDEX. 
 
 New Trustees — continued. 
 
 notice of assignments, inquiry as to, unnecessary on appoint- 
 
 ment of, 292 
 costs of on appointment of, 215 
 stamps on appointment of, ih. 
 
 Next-op-kin, 
 
 failure of, rights on, 243, 244 
 
 payment to Crown on default of, 236 
 
 discovered after Crown has taken, right of, 244 
 
 married woman's share under £200 is separate estate, 250 
 
 Nominee, 
 
 conveyance to [see Eesulting Teusts, 66 — 69] 
 
 Non-acceptance 
 
 of trust [see Acceptance] 
 
 Non-payment 
 
 of money ordered to be paid into Court [see Attachment] 
 
 Note [see PaoMissoRY Note] 
 
 Notice 
 
 of assignments to trustee, unnecessary to bind assignor, 288 
 absence of, effect of, ib. 
 ■where trustees are executors of assignor, 289 
 as against subsequent rights, necessary, ib. 
 order and disposition, ib. 
 effect of, ib. 
 
 proof of title by assignee giving, 233 
 constructive, to solicitor, 290, 297 
 
 knowledge in course of trust affairs, 
 is, ib. 
 personal, distinction as to, 298 
 times of, 290 
 
 priorities according to, ib. 
 to person bound to pay, ib. 
 real estate, application of doctrine to, 291 
 to leaseholds, ib. 
 sale-moneys, ib. 
 charge on portion, ib. 
 judgment creditors, 
 ib. 
 of assignment, trustees not entitled to release by assignor, 
 
 after, 234 
 verbal, ib. 
 
INDEX. 4.59 
 
 Notice — continued. 
 distringas, 234 
 charging order, ib. 
 proof of, ih. 
 to one trustee is notice to all, when, 291, 292 
 new trustees not bound to inquire as to, 234, 292 
 to trustees where power exercised, 234 
 of trust to purchaser, 293 — 299 
 constructive, 297 
 to solicitor for vendor and purchaser, ih. 
 personal, distinction as to, 298 
 by nature of transaction, 298 
 renewal by trustees, 77 
 recitals, 298 
 
 purchasing other part of property, 299 
 of doubtful equity, ib. 
 
 how and when to be given, ih. [see Following Trust 
 Estate] 
 not required as between settlor and voluntary c. q. t. [see 
 
 Voluntary Trusts], 28 
 trust for creditors without, revocable, 40 [see Trusts for 
 
 Creditors] 
 of breach of trust invalidates receipt of trustee, 129 
 of sufficiency of personalty, effect of, ih. 
 of judgments, does not affect purchaser, when, ih. 
 of transfer, neglect by trustees to give, 89 
 of intended fraud, 233 
 
 account of mesne profits where no, of plaintiff's title, 323 
 of trust not taken by companies, 140 
 to bring in third party under Order XVI. r. 13, 330 
 
 Notice to Quit, 
 
 service of, by c. q. t, 221 
 
 Nuisance, 
 
 action by feme covert for, 265 
 
 Offer 
 
 to buy, how trustees should act as to, 112 
 
 Onus [see Evidence] 
 
 Opening Biddings [see Bidding] 
 
 Opinion [see Counsel] 
 
 cases for, production of, 227 
 
 of Court, petition for [see Advice Petitions] 
 
430 INDEX. 
 
 Order 
 
 for payment into Court on admission [see Payment into 
 
 Court] 
 one of several trustees to receive dividends, 15 
 for payment to trustees for time being, 16 
 form of, for appointment of new trustees, 205 
 
 where part of estate lost, 207 
 
 Order and Disposition [see Bankruptcy] 
 by absence of notice of assignment, 289 
 
 Outlawry, 
 
 escheat, &c., on, not abolished, 243 
 
 Outlay [see Payment] 
 
 OVBRHOLDING [seC TENANT FROM YeaR TO YeAR] 
 
 Overpayment 
 
 to c. q. t., refunding [see Cestui Que Trust] 
 
 in an action, 231 
 of income to tenant for life, ih. 327 
 
 of wasting property, 91 
 
 Palatine Court, 
 
 discretion of, 175 
 
 Paraphernalia, 248 
 
 Parent, 
 
 maintenance out of legacy, by, 171 [see Maintenance] 
 advancement of child to assist [see Advancement] 
 interest of, to support exception of portions from Thellusson 
 Act, 155, 156 
 
 Parliament, 
 
 trustees cannot apply to, without leave of Court, 103 
 
 Parliamentary Securities [see Investment] 
 
 Parol 
 
 trust, form of, 33 
 
 release, where, 236 
 declaration of trust, proof of, under St. of Frauds, 25, 26, 33 
 
 [see Statute of Frauds] 
 evidence of intention to become trustee under, 33 
 evidence to rebut resulting trust, 61 
 
 to prove acceptance of trust, 12 
 
INDEX. 431 
 
 Parol — continued. 
 disclaimer by, 1 
 
 operation on a use, ib. 
 notice, proof of, 291 
 agreement, as to costs of solicitor-trustee, 200 
 
 Particulars, 
 
 description of trustees in, 112 
 
 Parties 
 
 to action for breach of trust, 330, 331 
 
 to action with reference to separate estate, 263, 264 
 
 [see Separate Estate] 
 creditors not, to action by trustee for them to get in assets, 
 
 41 
 in action against solicitor, joining trustees in, 19 
 
 Partition, 
 
 not under trust for sale, 123 
 under power of exchange, ib. 
 power to, is " usual power " in settlement, 50 
 
 Partner, 
 
 mixing trust accounts with accounts of, 228 
 
 not a trustee not liable as trustee without notice of trust of 
 
 money lent to firm, 325 
 jointly and severally liable for joining in breach of trust, 326 
 may buy deceased partner's share, when, 188 
 cannot buy bankrupt partner's share without leave, ib. 
 leave to bid given to, when, ib. 
 of solicitor-trustee acting for trust, 197, 305 
 
 liability of, 325 
 receipt for debt by, 39 
 renewal by, [see Constructive Trusts] 
 holds purchases for trade purposes as tenant in common, 70 
 deceased, trustees trading with money of, 287 
 surviving, allowance for trouble to, 198 
 
 Partnership 
 
 advancement by purchase of, 179 
 
 Payments, 
 
 necessary, discretion to make, 101 
 
 for building and repairs, 105 
 for drainage, 106 
 inquiry as to, 106 
 by trustees to cestuis que trust, 230 — 236 [see Cestui que 
 
 Trust] 
 of legacy, to legatee abroad, petition for advice as to, 109 
 
433 INDEX. 
 
 Payment into Court [see Court] 
 fluctuations of stock after, 192 
 right of, does not prevent action by trustee, 205 
 is " refusing or declining to act," 208 
 is discharge to trustee, 237 
 by order, upon admission of assets, 274 
 motion for, ib. 
 by directors, ib. 
 agents, ib. 
 
 plaintiff contingently entitled, ib. 
 admission must be clear, 275 
 
 investment to be specified in notice of motion, 
 
 275, 276 
 improper security proved, 275 
 
 loan on promissory note, ib. 
 to trustee's firm, ib. 
 to cestui que trust, ib. 
 on insufficient security, ib. 
 before trial, ib. 
 at the trial, ib. 
 after trial, ib. 
 evidence not allowed, ib. 
 trust must be admitted, 276 
 unless title clear, not, ib. 
 leave to traverse denial of title, ib. 
 plaintiff must not make out case from defendant's 
 
 case, ib. 
 breach of trust to be shown, ib. 
 attachment for disobedience of, ib. [see Attachmekt] 
 
 Peerage, 
 
 trust of money to procure, void, 83 
 trusts attempting to control limitations of, void, ib. 
 executory settlement according to limitations of a, 49 
 trust of, not capable of being declared, 242 
 
 Penalty, 
 
 interest for breach of trust not charged as, 285 
 
 Pension, 
 
 trust of, 242 
 
 Perpetuities, Eule Against, 
 trust void as against, 152 
 
 of term offending against, ib. 
 
 to raise charge at a time too remote, ib. 
 to accumulate during recurring minorities, void, 
 ib. 
 unless accumulations vest within 
 period, ib. 
 
INDEX. 433 
 
 Perpetuities, Rule Against — continued. 
 
 to eater and manage during minorities under 
 
 strict settlement, void, 152 
 not within Mortmain Act, but void as against, 
 
 153 
 not void as against, but against Thellusson Act, 
 void for excess, 154 
 
 Personal Estate, 
 
 not within s. 7 of Statute of Frauds, 25 
 trusts of, may be declared by parol, ih., 33 
 
 evidence of intention to become trustee, 33 
 settlement of, by reference to trusts of realty, 50 
 land devised to pay debts in aid of, not required, results, 58 
 inquiry whether, deficient, 127 
 abroad, jurisdiction as to, 244 
 
 Personal Security \f.ee Investment] 
 
 to be got in, 87 [see Getting in Trust Estate] 
 effect of direction " to get in with all convenient speed," 88 
 discretion to vary, ib. 
 
 to get in debt or not, ih. 
 compulsory payment into Court where trust fund lent on, 275 
 
 Petition [see New Trustees] 
 
 to appoint new trustee of separation deed, 204 
 under Trustee Act, s. 32, to remove trustee, not good, 215 
 validity of deed not decided on, ih. 
 rights of parties not affected, ib. 
 postponement of under s. 53 to as- 
 certain rights, 216 
 for obtaining opinion of Court, 108 — 110 [see Advice Peti- 
 tions] 
 of right. Crown declared trustee upon, 242 
 of trustee for remuneration, 200 
 
 to charge investment for benefit of tenant for life, 135 
 under Lynch's Act as to Irish mortgage, ih. 
 for money transferred to National Debt Commissioners, 144 
 
 Policy [see Insurance] 
 
 neglect to keep up, by trustees, remedy for, 89, 100, 326 
 where no funds, power or duty, ih. 
 trust to keep up, ih. 
 mode of keeping up, ib. 
 lien for money paid in keeping up, ib. 
 
 enforced by sale, 327 
 to secure maintenance out of infant's reversion, 176 
 on life of another, keeping up, not against Thellusson Act, 154 
 voluntary trust of : duty of trustees to give notice to ofiice, 
 30, 89 
 
434 INDEX. 
 
 POETIONS, 157 — 170 
 definition of, 157 
 
 term to secure, how limited to trustees, ih. 
 trusts to raise, ih. 
 
 power to charge under executory settlements, 50 
 appointment of fund for, by parent, 167 
 
 with restraint on anticipation, good, 267 
 excepted from Thellusson Act, 153 
 
 whether charged or to be charged, 155 
 only where parent has an interest, ib. 
 for children of another person, 156 
 who may take, 157 — 159 
 
 grandchildren, 157 
 
 "younger children " meaning of, ih. 
 
 becoming " eldest son," 158 
 eldest son becoming younger child, ih. 
 resettlement by, ih. 
 mortgage by, ih. 
 devise by, to younger son, ih. 
 time of ascertaining who is, 161 
 younger son taking by descent, 158 
 eldest daughter treated as younger child, 159 
 
 taking estate, ih. 
 where daughters only, ih. 
 child en ventre sa mire, ih. 
 where settlor a stranger, 159 
 grandmother in loco parentis, ih. 
 uncle, ih. 
 other persons, ih. 
 children of any marriage, ih. 
 
 begotten or to be begotten, ih. 
 vesting of , 160 — 162 
 
 at 21 or marriage, 160 
 
 when time not fixed, ih. 
 not postponed, though time of raising postponed, ih. 
 time of raising specified, ih. 
 right of entry given, ih. 
 trust for sale, ih. 
 covenant to pay, ih. 
 payable on death of life-tenant, 
 ih. 
 surviving parent to die " leaving" children, 161 
 where imperative words as to surviving parents, ib. 
 postponement of, where gift over and cesser of term, 
 ih. 
 daughters to take on failure of male 
 
 issue, ib. 
 for prior payment of debts, ih. 
 
INDEX. 435 
 
 Portions — continued. 
 
 gift to a given number of children, 161 
 to children of former marriage, ib, 
 where children by name are portionists, 162 
 condition that daughter's husband should settle, ib. 
 trustees to consent to marriage, ib. 
 subsequent, ib. 
 payment of, 162 — 164 
 when, 162 
 
 at specified times, and no contrary intention, ib. 
 daughters, during surviving mother's life, ib. 
 where prior estate in grandfather, ib. 
 contrary intention as to, during tenancy for life, 163 
 death without leaving daughter, ib. 
 power of appointment, ib. 
 
 revocation, power of, ib. 
 reversionary term, ib. 
 maintenance deferred, ib. 
 condition that male issue to take, ib. 
 prior jointure charged, ib. 
 postponement till death of life-tenant, ib. 
 contingency unascertainable till death, ib. 
 no contrary intention where power to order raising 
 during life, ib. 
 though term in reversion, ib. 
 out of annual profits, 164 
 raising, mode of, 164, 165 
 
 by sale or mortgage at fixed time, 164 
 
 as soon as may be, ib. 
 where term reversionary, ib. 
 
 no term limited, ib. 
 rents insufficient, ib. 
 intention contrary to, ib. 
 by sale, not best means, ib. 
 out of accumulations, ib. 
 by lease on tine or rack-rent, ib. 
 by several mortgages, 165 
 
 by sale of timber or minerals, where term too short, ib. 
 amount of, raisable, 165, 166 
 
 provision against excessive, 165 
 after sale of part of land charged, ib. 
 abatement where estate insufficient, ib. 
 costs of raising, ib. 
 
 apportionment of, between estates charged, ib. 
 withdrawal of one estate from settlement, ib. 
 where real and personal estate charged, ib. 
 marshalling where one estate subject to prior charge, 
 166 
 
 F F 2 
 
4156 INDEX. 
 
 PonTIONS — continued. 
 
 between creditors and portionists, 166 
 interest on, 166, 167 
 
 4 per cent, from time when raisable, 166 
 none where payable out of rents, ib. 
 where portions raisable under power, ih. 
 laches, by portionists, effect of, ih. 
 by way of maintenance from death of parent, 157, 166 
 though term reversionary, 167 
 part maintenance, ih. 
 accumulation of interest applied, ib. 
 satisfaction by subsequent provision, ih. 
 when to begiu, ih. 
 
 on expectant portions, ih. [see Maintenance] 
 advancement out of, 157, 167 
 
 none unless provided, ib. [see Advancement] 
 " by portion," ib. 
 dnhing of, 167, 168 
 
 by death before vesting, 167 
 interim interest does not prevent, ib. 
 where condition not fulfilled, 168 
 on default of appointment, when, ib. 
 on land to be purchased, when, ih. 
 merger of, 168, 169 
 
 where portionist takes estate, 168 
 
 becomes tenant in tail, ib. 
 none, of distributive accrued share of eldest son, ih. 
 prevented by outstanding legal estate in mortgagee, ib. 
 none in derogation of creditors or infants, ih. 
 intention against, will prevent, ih. 
 of part of, where portionist takes part of estate, ib. 
 none -where no gross sum given for portions, 169 
 satisfaction of, 169, 170 
 
 by equal or larger legacy, 1 69 
 
 by smaller provision, ib. 
 
 small variations not to countervail rule against double 
 
 portions, 169 
 contingent legacy not a, ih. 
 life interest not a, ih. 
 reversion not a, ib. 
 gift of land, ih. 
 
 gifts of portion and provision to be both by parent, ih. 
 ■where settlement precedes will, ih. 
 where by second settlement, 170 
 
 where parent pays portions himself, intention inferred, ih. 
 election, ih. 
 evidence as to, ib. 
 charge on, doctrine of notice applies to, 291 
 
INDEX. 4-37 
 
 Possession 
 
 of c. q. t. [see Tenant for Life] 
 c. q. t. in, has right to retain title deeds, 226 
 of c. q. t. not adverse to trustee, 314 
 of one c. q. t. not adverse to others, 315 
 [see Statute of Limitations] 
 
 Postnuptial Settlement, 
 
 settlement not made in pursuance of articles is, 45, 46 
 meritorious consideration for, 32 
 
 Postponement 
 
 of sale [see Sales bt Trustees] 
 discretion as to, of payment of share, 231 
 
 Poverty 
 
 of grantee, evidence of, to support resulting trust, 67 
 
 effect of, on sale by mortgagor to mortgagee, 186 
 
 no ground to suppose purchase by trustee is not under 
 
 trust, 305 
 husband's, no ground for charging separate estate, 263 
 
 unless he is chargeable to parish, ib. 
 receiver not appointed on account of, of trustee, 273 
 effect of, as to delay in upsetting purchase of trust estate by 
 
 trustee, 195 
 no ground for relief after long acquiescence, 320 
 of defaulting trustee [see Attachment] 
 
 Power, 
 
 mere, not in nature of trust, not executed by Court, 103 
 secus, if trustee required to perform, ib. 
 to distribute, without gift over, ib. 
 how esecuted by Court, ib. 
 of selection by trustees under trust for creditors, 40 
 discretionary, cannot be delegated by grant or devise, 20 
 
 of sale, exercise of, by surviving trustee, 122 
 transmissibility of, 138 
 exercise ,of, by devisee of trust estates, 23 
 
 where "assigns" omitted, ib., 24 
 of appointment before legal gift over requires legal fee in 
 trustees, 9 
 same where contingent remainders may be 
 
 created under, ib. 
 general, not exercised by tenant for life 
 
 getting renewal, 75 
 exercised by letter in favour of volunteer, 31 
 of income of separate estate against husband's 
 
 right as administrator, 251 
 of new trustees [see New Trustees] 
 
438 INDEX. 
 
 Power — continued. 
 
 new trustee may exercise every, 203 
 
 power of sale, 214 
 appointment under, payment by trustee on, 232 
 
 to trustees for appointees, ib. 
 by married woman, ib. 
 prima facie good, 234 
 fraud upon power, ib. 
 default of, evidence of, ib. 
 what powers inserted in settlement under executory trust, 50 
 " usual powers : " of management, ib. 
 leasing, ib. 
 building leases, ib. 
 sale and exchange, ib. 
 partition, ib. 
 
 transposition of securities, ib. 
 appointment of new trustees, ib. 
 maintenance and advancement, ib. 
 not jointuring and portioning, ib. 
 power to appoint to husband, when, ib. 
 as counsel shall advise, ib. 
 of advancement [see Advancement] 
 of attorney \_see Power of Attorney] 
 to advance to husband, taking his bond is not proper exercise 
 
 of, 88 
 to consent to marriage, by trustees [see Consent] 
 effect of disclaimer on, 12 
 of investment [see Investment] 
 of leasing, petition for advice as to exercise of, 109 
 
 without express, trustees cannot grant leases, 102 
 in tenant for life consistent with legal fee in 
 
 trustees, 9 
 definite, gives legal estate while it lasts, 8 
 indefinite, passes fee, 6 
 
 under Wills Act, ib. 
 to take surrender of lease passes legal fee, ib. 
 of renewing lease [see Renewal of Leases] 
 to lend on real security [see Investment] 
 of maintenance [see Maintenance] 
 
 of management, during minorities under strict settlement, too 
 remote, 152 
 making permanent improvements under, 106 
 to make improvements under 27 <fe 28 Vict. c'. 114 [see 
 
 [Improvements], 107 
 to apply accumulations in building, 105 
 to cut timber, trustees with, take legal fee, 6 [see Timber] 
 of trustees, to work open gravel pits, 1 07 
 to grant waste of manor, 107, 108 
 
INDEX. 439 
 
 Power — continued. 
 
 to mortgage or sell gives no power to give receipts, 125 
 to mortgage, authorises mortgage with power of sale, 123 
 under 23 & 24 Vict. c. 125, s. 11, ib. 
 by executors, ib. 
 by Court, ih. 
 not to be accelerated, 116 
 to purchase land, authorises building, when, 105 
 
 not repairs, ib. 
 
 of house, ib. 
 of cottages, ib. 
 of sale \see Sales bt Trustees] 
 
 trustees retain legal fee taken for, 6 
 effect of disclaimer on, 12 
 
 where all disclaim, ib. 
 subject to prior life estate, legal fee postponed on, 8 
 or leasing ; effect of, on duty to convert wasting se- 
 curities, 92, 93 
 petition for advice as to exercise of, 109 
 construed strictly as to consents, 118 [see Consent] 
 exercise of by new trustee before conveyance to him, 214 
 and exchange implies no power to give receipt, 125 
 
 authorises partition, 123 
 does not authorise lease, ib, 
 
 by executors, 124 
 not given by trust to raise money by mortgage, ib. 
 mortgage without, to trustees, 143 
 in mortgage under power, 123 
 under 23 <fc 24 Vict. c. 125, s. 11, ib, 
 by executors, ib. 
 by Court, ib. 
 mortgagee having, cannot buy under it, 186 
 annuitant having, cannot buy estate charged, ib. 
 over property purchased under trust, 146 
 exists while there is a settled estate, 116 
 indefinite, not a perpetuity, ib. 
 kept alive by sub-settlement, 117 
 not by jointure, ib. 
 by general power of appointment, ib, 
 of appointment, keeps power of sale alive, ib. 
 portions, of appointment of \see Poetions] 
 to give receipts [see Eecbipt of Trustee] 
 
 for rent, 3 
 separate estate may be bound though feme have life estate 
 and a, 260 
 where power by will only, ib. 
 
 gift over in default of appointment, 261 
 will of /ewe coverte under, 259 
 
440 INDEX. 
 
 Power — continued. 
 
 to vary investments [see Investment] 
 
 effect of on duty of getting in personal 
 securities, 88 
 
 Power of Attorney, 
 
 trustee should not give, to co-trustee, to sell stock, 17 
 
 agent holding, to sell and invest, is a trustee, 309 
 
 validity of, inquiry by trustee as to, 235 
 
 forged, ih. 
 
 payment on unless c. q. t. dead, ih. 
 
 acting on after death of settlor, 34 
 
 tenant for life giving, ih. 
 
 to father to sell, after purchase in son's name, effect of, 66 
 
 effect of in completing voluntary trust, 29, 32, 34 
 
 Practice, 
 
 on petitions for opinion of Court, 110 
 
 under 25 & 26 Vict. c. 108, for leave to seU surface without 
 mines, 118 
 
 Prayer, 
 
 for interest, where necessary, 284 
 
 Precatory Trusts, 52 — 57 
 definition of, 62 
 creation of, by deed, ih. 
 I. words importing, 52 — 54 
 
 relative force of, 54 
 II. binding nature of, ih. 
 
 power to withdraw part, defeats, ih. 
 words used for, cannot prevent enjoyment of property, ih. 
 to prevent barring entail, ii. 
 to keep estate in particular line, ih. 
 leaving "bulk " or " what is left " subject to, ih. 
 that donee to leave his own property, 55 
 no trust if donee " unfettered," ih. 
 
 "in entire power " or "judgment " of donee, ih. 
 " quite at liberty to give, <fec.'' ih. 
 " not absolutely enjoin," ih. 
 executors to continue agent, ih. 
 after absolute gift, words of advice, ih. 
 "do justice to," ih. 
 " take care of," ih. 
 " be kind to," " remember," " con- 
 sider,'' ih. 
 if not enforceable by Court, ih. 
 tenant for life under, may cut timber, &c., during own enjoy- 
 ment, ih. 
 but must leave estate in statu qua, 56 
 
INDEX. -l^l 
 
 Prbcatoey Trusts — continued. 
 
 III. certainty of objects and property subject to, 56, 57 
 "relations," "descendants," "family," "heirs," 56 
 donee cannot take beneficially if trust intended, ib. 
 
 resulting trust in such, case, ib. 
 direction to dispose, how construed, 57 
 
 when interest of children declared under, ib. 
 carried into effect by the Court, when, ib. 
 limitation of shares of daughters to separate use, 
 under, ib. 
 for children at donee's death, what interests given, ib. 
 children and donee taking as a class, ib. 
 
 Pbepebencb Eailwat Stock [see Investment] 
 
 Preferment [see Advancement] 
 
 Premium [see Policy] 
 
 payment of, on policy of life of another not against Thellusson 
 
 Act, 164 
 obtained by partner for taking lease, 77 
 
 Pressure, 
 
 confirmation under, of purchase of trust estate by trustee, 194 
 by trustee vitiates contract with c. q. t. for remuneration, 201 
 effect of, on sale by mortgagor to mortgagee, 186 
 
 Presumption, 
 
 of acceptance of trust, 12 
 
 of payment, by delay, 316 
 
 of release or waiver of right, 317, 319 
 
 of assent, 317 
 
 that trustee is acting in exercise of trust, 305 
 
 of death [see Death] 
 
 Price [see Sales by Trustees] 
 
 Principal [see Agent] 
 
 Priority [see Notice] 
 
 Private Act, 
 
 trustees must have leave of Court to obtain, 103 
 
 Privity 
 
 between parties necessary to give jurisdiction as to foreign 
 property, 245 
 
 Prize 
 
 taken in war, trust of, 242 
 
442 INDEX. 
 
 Production 
 
 of deeds, equitable right to, 145 
 coyenant for, costs of, ib. 
 of voluntary deed by executor of settlor, 35 
 [see Title-Debds] 
 
 Pkofebsion, 
 
 advancement for preparation for, 178 
 
 Profit, 
 
 trustee must account for, made in trade, how, 28G, 287 
 
 inquiry as to, ib. 
 
 right of c. q. t. to, ib. 
 
 agent is trustee of undue, 187 
 
 Promise, 
 
 voluntary, to assign, cannot be enforced, 30, 33 
 
 Peomissobt Note \_see Investment] 
 
 of married woman [see Separate Estate] 
 as collateral security to perform voluntary trust, 34 
 voluntary trust of, for wife, 32 
 
 compulsory payment into Court where trust fund lent on, 
 275 
 
 Proof 
 
 of debts, all trustees must act in, 15 
 
 except in special cases, 16 
 c. q. t. must join in, in bankruptcy, when, ib. 
 trustees for creditors may require, by creditors, 40 
 against estate of bankrupt trustee [see Bankruptcy] 
 
 Prosecution 
 
 of trustee for misappropriation, 281, 282 
 
 Protection Order 
 
 under Divorce Act, payment out after, 268 
 
 Protector 
 
 of settlement, appointment of, 49 
 consent to sale by, after barring entail, 119 
 trustee for separate use is, when, 223 
 married womanj where, 268 
 
 Public Poltcy, 
 
 trusts against, are illegal and void, 83 
 
 Public Stocks [see Investment] 
 
INDEX. 443 
 
 PuE Autre Vie 
 
 legal estate, not cut down to chattel interest, 8 
 
 trustees take, where gift over legal, ib, 
 estate, when taken by trustees, 7 
 
 PUEOHASB, 
 
 power to, land, authorises building, when, 105 
 
 [see Investment] 
 in son's name [see Resulting Trusts], 61 — 66 
 joint [see Eesulting Trusts], 69 — 71 
 in name of stranger [see Resulting Trusts], 66 — 69 
 words of, " heirs of the body " construed as, in executory 
 trusts, when, 44 
 
 PoKCHASE OE trust Estate BY TRUSTEES [see MORTGAGEE ; Agent ; 
 Receiver; Partner; Tenant for Life; Solicitor; Counsel] 
 rule as to, 182 
 by auction, ib. 
 
 bidding through agent, ib. 
 by contract, through agent, ib. 
 as agent for another purchaser, ib. 
 from co-trustee, 183 
 by collusion with other purchasers, ib. 
 the trustees being discharged, ib. 
 removed, 215 
 conveyance in name of children of trustee, 183 ~ 
 
 of trustee for trustee, ib. 
 repurchase after bond fide sale to stranger, ib. 
 
 by trustee for creditors, ib. 
 by disclaiming trustees, ib. 
 
 by trusteee to preserve contingent remainders, ib. 
 by bare trustee, 184 
 
 trustee for creditors, 188 
 
 assent of creditors to, ib. 
 jurisdiction of Chancery Division, ib. 
 reversion, 184 
 
 rule as to, does not prevent other dealings with c. q. t., ib. 
 after trust ended, bona fides must still be proved, ib. 
 
 onus of proof, ib. 
 severance of fiduciary relation, ib. 
 married woman, acknowledgment by, ib. 
 infant, sanction of Court on purchase from, ib. 
 
 after auction, ib. 
 liberty to bid, ib. 
 opening biddings, 185 
 executors and administrators within rule as to, ib. 
 
 buying legacy from legatee, ib. 
 remedy as to, 191 — 193 
 
444 INDEX. 
 
 Purchase of trust Estate by Trustees — continued. 
 after resale by trustee, 191 
 
 sale set aside and reconveyance, ih. 
 mesne profits, ih. 
 interest on rents, ib. 
 repayment of price by c. q. t., ib. 
 
 of money spent on repairs, ib. 
 
 improvements, 192 
 compensation for injury, ib. 
 resale at option of c. q. t., ib. 
 mode of, ib. 
 
 in lots, ib. 
 interest of lessees on, ib. 
 where price in Court, ib. 
 to purchaser with notice, ib. 
 
 discovery as to breach of trust, ib. 
 to purchaser without notice, ib. 
 
 return by trustee of profit with interest, ib. 
 replacement of property, ib. 
 costs, ib. 
 
 delay and acquiescence, ib. 
 receiver, ib. 
 confirmation of, 193 — 195 
 
 by act of parties, 193 
 
 by c. q. f., sui juris, and knowing rights, 193, 
 
 194 
 must be express, 194 
 
 not under pressure, ib. 
 by lapse of time, 194 — 195 
 
 within what period, 194 
 infancy, 195 
 ignorance, ib. 
 poverty, ib. 
 where creditors sue, ib. 
 
 Purchase money [see Sales by Trustees] 
 trustees should themselves receive, 18 
 solicitor cannot give receipt for, ib. 
 
 without written authority by trustees, ib. 
 
 Purchaser [see Purchase ; Investment] 
 
 injunction against where trustees sell under depreciatory 
 
 conditions, 279 
 vendor is constructive trustee for, after contract, 72 
 conveyance by trustees at suit of, 224 
 discharge of, by trustee's receipt, 124 — 130 
 
 [see Receipt of Trustee] 
 for value, postnuptial settlement not made in accordance with 
 articles is void against, 45 
 
INDEX. 445 
 
 P CROH ASER — continued. 
 
 without notice, limitations in articles not varied 
 
 against, 46 
 secus with notice when, ib. 
 
 that vendor was trustee, ib. 
 of separate estate, 259 
 with or without notice [see Followins Trust 
 
 Estate] 
 with notice that vendor was trustee, 192 
 
 right of, to interrogate as to trusts, 193 
 of constructive trust on renewal by trustees, 77 
 power of one trustee having deeds to make title 
 to, 240 
 from trustees not to be favoured at expense of cs. q. t, 111 
 fraudulent settlement against purchaser under 27 Eliz. c. 4. 
 35 [see Fraud] 
 
 Railway 
 
 debentures, [see Debentures] 
 stock [see Investment] 
 
 Real Estate, [see Investment] 
 
 separate, under Married Women's Property Act, 250 
 abroad, jurisdiction as to, 244 
 doctrine of notice inapplicable to, 291 
 
 Real Security [see Investment] 
 
 Rebuilding [see Building ; Repairs] 
 power to repair gives none for, 107 
 outlay on, petition for advice as to, 109 
 
 Receipt, 
 
 of trustee for purchase-money, 124 — 130 
 
 indorsement on, conveyance of, 125, 190 
 imder Lord St. Leonards' Act, s. 23, 124 
 not retrospective, 126 
 Lord Cranworth's Act, s. 29, 124 
 discharge by, (1) where express power to give re- 
 ceipt, 125 
 unless contrary intention, ib. 
 where power to invest " on security " 
 ib. 
 to vary, ib. 
 " on securities," ib. 
 to sell or exchange, ib. 
 to raise money by mort- 
 gage or sale, ib. 
 
446 INDEX. 
 
 Receipt — contin ued. 
 
 (2) where clear trust for sale and 
 c. q. t. under disability, 125 
 
 or unascertained, ih. 
 
 (3) where discretion as to investment 
 of sale-moneys, ih. 
 
 (4) where trust to pay debts, legacies, 
 or annuities charged on the land, 
 
 126 
 where no debts, or all 
 
 paid, ib. 
 one debt mentioned and 
 
 genet'al charge, ih. 
 inquiry as to debts un- 
 answered, ih. 
 general charge same as 
 trust to pay debts, ih. 
 inquiry as to quantum 
 
 sold to pay debts, ih. 
 as to deficiency of per- 
 sonalty, 127 
 where particular debts charged, ih. 
 debts satisfied, inquiry as to 
 legacies unnecessary where, 
 ih. 
 under ss. 14 — 18 of Lord St. Leonards' Act, 127 
 
 trustees may sell or mortgage to pay 
 
 debts charged without express power, ih. 
 
 executor may sell or mortgage if no 
 
 devise to trustees, ib. 
 purchasers or mortgagees discharged, ih. 
 beneficial devises subject to debts, with 
 powers of sale or mortgage excepted, ib. 
 before the Act, 
 
 1. charge of debts, and no power of sale — trustees or 
 
 executors may sell, whether, 127 
 
 2. charge on beneficial devise, devisee may sell, ih. 
 
 3. devise without direction to pay, executors may sell, ih. 
 
 4. charge without devise, executors and heir may sell, ib. 
 
 5. charge of debts and devisee dying in testator's life, 
 
 only Court can sell, 129 
 notice to purchaser of improper sale invalidates, ib. 
 
 where debts charged must have been 
 
 long paid, ih. 
 where sale after action brought, ih. 
 of registered judgment where vendor 
 
 is executor, ih. 
 where object of sale not stated, 130 
 
INDEX. 447 
 
 Receipt — continued. 
 
 creditors must show purchaser had notice, 130 
 all the trustees must join in, for trust funds, 15 
 
 sale moneys, ih. 
 solicitor liable for taking, from one trustee, 1 9 
 one trustee can give for dividends, 15 
 
 rents, 15 
 for conformity, liability after, \_see Co-Teusteb] 
 under 22 <fe 23 Vict. c. 35, s. 23, or 23 & 24 Vict. c. 145, 
 
 ss. 29 & 34, 91 
 for personal and real debts, distinction as to, ih. 
 liability for, given for money unreceived, 89 
 of trust fund, anticipation of time for, 89 
 trustees paying to other trustees entitled only to, 237 
 from legatee abroad, petition for advice as to, 109 
 separate payment out to feme coverte on, 268 
 of /erne coverte to be good, imports separate use, 253, 256 
 solicitor cannot give, for trust fund, 18 
 
 Receiver, 
 
 trust property in danger of being wasted, 256 
 interlocutory application for, ih. 
 ex parte application for, ih. 
 insolvency of trustee feared, where, ih. 
 bankruptcy of trustee, on, ih. 
 
 after administration decree, ih. 
 
 trustee in bankruptcy not a party, where, ih. 
 
 appointment of trustee by testator, notwithstand- 
 ing, ih. 
 loss of part of fund, ground for, ih. 
 neglect to get in trust estate, ground for, ih. 
 disagreement between trustees, ground for, ih. 
 refusal by some trustees to act, ground for, 273 
 disclaimer no ground for, ih. 
 inaction no ground for, ib. 
 absence abroad, where ground for, ih. 
 
 to pay expenses of renewal omitted by tenant for life, 150, 274 
 not appointed because trust estate bought by trustee, 193 
 poverty of trustee no ground for, 273 
 drunkenness ground for, ih. 
 and manager, where appointed, ih. 
 inconsistent interest of trustees, where, ih. 
 recognisances by, ih. 
 security given by, ih. 
 salary, 202 
 expenses, of, 274 
 discharge of, ih. 
 interest charged against, when, 285 
 
448 INDEX. 
 
 Reoeiver— continued. 
 
 cannot buy annuity charged on estate, 1 88 
 
 jointure, ih. 
 under deed, when express trustee, 309 
 
 Recital, 
 
 notice from, 298 
 
 acceptance of trust as explained in, 14 
 
 20 years old when binding, 145 
 
 incorrect, refusal by trustees to execute deed containing, 224 
 
 false, of payment by settlor, makes him trustee, where, 241 
 
 Recognisances 
 
 of receiver, 274 
 
 Recommendation, 
 
 words of, create trust, when, 52 
 
 Reconversion 
 
 after conversion in equity, 308 
 
 Rbconvbyancb 
 
 of trust estate bought by trustee, 191 
 
 Recoveey 
 
 of land subject to express trust \see Statute op Limitations] 
 
 Record, 
 
 matter of, disclaimer by, doctrine as to, 10 
 
 Reduced Annuities [see Investment] 
 
 Rectification 
 
 of settlement made under articles, 45 
 on ground of mistake, ib. 
 of voluntary settlement, 31 
 of power to appoint new trustees, 204 
 
 Reference, [see Inquiry] 
 
 appointment of new trustees without, 205 
 as to payment of trustee who refuses to act gratuitously, 200 
 as to remuneration of solicitor- trustee, 198 
 surviving partner, ib. 
 as to costs of solicitor-trustee, 200 ' 
 
 Refunding 
 
 wrong payments to c. q. t. [see Cestui que Trust] 
 legacies, 329 
 
 Refusal, 
 
 receiver on, of trustees to act, 273 
 
 of payment by trustees to c. q. t. [see Cestui que Trust] 
 
INDEX. 449 
 
 Refusal — continued. 
 
 without release, 236 
 to furnish accounts, by trustee, 228 
 of trustee to sue, form of pleading, on, 279 
 
 Registration, 
 
 neglect of, by trustees, 89 
 
 Re-investmbnt 
 
 in land [see Investment] 
 
 payment into Court pending, after sale, not ordered, 276 
 
 Relations, 
 
 meaning of, 56 
 
 Relative 
 
 may be trustee, where, 211 
 
 Eelbasb, 
 
 trustees not entitled to, 236 
 
 under seal, when, ib. 
 
 set aside, when obtained by fraud, ib. 
 
 refusal of, by c. q. t., action for administration, where, ib. 
 
 express trust, on payment under, ib. 
 
 parol trust on payment under, ib. 
 
 where trustee is asked to infringe trust, ih. 
 
 ignorance of c. q. t. avoids, 237 
 
 extends only to matters expressly included, ib. 
 
 on payment to other trustees, ih. 
 
 by c. q. t. of settled shares, ib. 
 
 payment into Court is, ib. 
 
 form of, ib. 
 
 by e. q. t. for less sum on ground of supposed want of title, 
 
 232 
 of breach of trust \_see Breach of Trust] 
 presumption of [see Presumption] 
 disclaimer by, 10 
 by trustees, of rights, 89 
 of rents due, to get rid of tenant, 101 
 
 Religion, 
 
 trusts offending against, void, 83 
 
 Remainderman [see Inheritance] 
 
 rights of, to income of residue [see Tenant for Life], 95 — 97 
 cannot claim as under express trust when tenant for life 
 
 renews, 75 
 voluntary settlement for, when good, 32 
 
450 INDEX. 
 
 ItEMOVAL 
 
 of trustee, where purchaser or lessee of trust estate, 215 
 no jurisdiction under s. 32 of Trustee Act, ib. 
 
 or to consider validity of trust deed, ib. 
 on disagreement with c. q. t, 216 
 
 refusal of co-trustees to act with him, ib. 
 bankruptcy, 209 
 corrupt practices, 216 
 forgery, ib. 
 
 destroying trust property, ib. 
 refusal to exercise discretion, ib. 
 to upset trust, ib. 
 
 to be sought in reasonable time, ib. 
 scandal in alleging facts for, 216, 217 
 impertinence, ib. 
 of executor, as trustee under continuing trusts, 206 
 
 Remoteness [see Perpetuities, Rule against] 
 executory trusts bad for, modified, 49 
 restraint on anticipation void for, when, 267 
 after prior life estate, ib. 
 
 on appointment under ante-nuptial settlement, ib. 
 of portions under will, ib. 
 
 Remdneeation 
 
 of trustees, &c. [see Allowances] 
 
 Renewal op Leases, 148 — 151 
 
 trustees to procure, under Lord Cranworth's Act, 148 
 
 except where tenant for life not obliged to renew, ib. 
 discretion of tenant for life to renew, where, ib. 
 leasehold for lives, tenant for life being a c. q. 
 vie, ib. 
 charge by tenant for life on estate for ex- 
 penses, ib. 
 where intention appears that tenant for life should 
 
 renew, ib. 
 where legal tenant for life directed to pay fines, 149 
 where legal estate in trustees and no direction to 
 
 renew, ib. 
 effect of Act, ib. 
 implied trust for, ib. 
 
 trust for, inserted in settlement under executory trust, 149 
 before the Act, ib. 
 
 in tenant for life makes him a trustee, 
 149, 150, 309 
 receiver for payment of expenses of, 149, 160, 273 
 by trustees in their own name [see Constkdotive 
 Trusts] 
 
INDEX. 451 
 
 Renewal op Leases— continued. 
 
 apportionment of fines on, 150, 151 
 where no direction, according to enjoyment, 150 
 how calculated, ib. 
 where life tenant renews, ib. 
 security from life tenant, ib. 
 for lives or for years, no distinction as to, ib. 
 mode of, 157 
 
 with life insurance, ib. 
 by sale or mortgage, mode of, 151 
 by payment out of rents, ib. 
 
 retaining rents as sinking fund, ib. 
 annual rents, ib. 
 out of rents or by mortgage, ib. 
 expenses of, not payable hy persons having charges on 
 old lease, 77 
 lien for, 78 
 
 Rents, 
 
 legal estate does not pass on trusts to permit another to 
 receive, 2 
 unless /eme coverte, 3 
 legal estate passes to trustees to pay, or give receipts for, ib. 
 
 apply for maintenance, ib. 
 receipt of, by father purchasing in son's name no rebuttal of 
 
 advancement, where, 62 
 of residuary realty, right of tenant for life to, 96 
 receivable by one trustee, 15 
 received by one trustee, co-trustees liable for, ib. 
 arrears of, release of, by trustees, 101 
 
 advancement to pay, 179 
 of leaseholds, trust to apply, during minority or life, 2 
 portions, raising, out of [see Portions] 
 raising money to pay debts out of, 165 
 renewal of leaseholds out of, 151 
 
 by sinking fund, ib. 
 out of annual, ib. 
 applicable to repairs, not for rebuilding, 107 
 liability of vendor for, after contract for sale, 73 
 accumulation of, limit of, under Thellusson Act, 153 
 account of [see Statute of Limitations] 
 charge for collecting [see Allowances] 
 commission on, to mortgagee, 201 
 mortgagee cannot chai-ge for receiving, 197 
 may employ bailiff to receive, ib. 
 
 Repaies, 
 
 expenditure in, 106 
 
 G o 2 
 
452 INDEX. 
 
 Repaies — continued. 
 
 power to make, gives none for rebuilding, 107 
 
 trustees to make, take legal fee, 6 
 
 lien for, of joint purchaser, 70 
 
 power to cut timber for, 107 
 
 of trust estate bought by trustee, allowance for, 191 
 
 Replacing Stock \see Bbeach of Tbust] 
 
 Representative 
 
 of c. g. t., payment to by trustee, 232 
 
 liability of, for breach of trust [see Breach of Trust] 
 
 mesne profits against, 323 
 
 Reputed Ownership \_see Bankruptcy] 
 
 Requisitions, 
 
 decision of Judge as to, under Vendor and Purchaser Act, 145 
 
 Resale 
 
 by trustee after purchase of trust estate 
 
 [see Purchase op Trust Estate] 
 
 Reserve, 
 
 fixing, petition for advice as to, 109 
 
 by trustees, 112 
 trustees buying in without, ih. 
 sale at^ after abortive sale, ib. 
 
 to co-trustee, ih. 
 purchase by trustee of trust estate at, after abortive auction, 
 184 
 
 Residue, 
 
 wasting securities to be sold when, given to persons in succes- 
 sion, 191 [see Getting in Trust Estate]. 
 
 Restraint from Anticipation [see Separate Estate] 
 
 Rests [see Interest] 
 
 Resulting Trusts 
 
 from imperfect disposition, 58 — 60 
 
 ■where trusts exhaust less than whole legal estate, 58 
 
 land devised in aid of personalty to pay debts, not 
 
 required, ib. 
 fund to answer annuity not itself disposed of, ib. 
 heir not excluded by negative words, 69 
 nor by bare intention, ib. 
 nor by legacy to him, ib. 
 rebutted by intention of bounty to relatives, when, ib. 
 efi'cot of using words like " trust " or "trustee " ib. 
 
INDEX. 453 
 
 Resulting Teusts — continued. 
 
 where trust intended to be but not declared, 60 
 evidence of intention that trust should result, ib. 
 where trusts would be illegal, ib. 
 where trusts fail, 56, 60 
 legal estate does not pass, where, 3 
 where trusts inapplicable to land, 56, 60 
 unnecessary conversion, ib. 
 from want of consideration, 60, 61 
 grant, lease, or gift without consideration, results to 
 
 grantor or lessor, ib. 
 secus to wife or child, ib. 
 nominal consideration does not rebut, 6 1 
 saved by Statute of Frauds, s. 8, ib. 
 parol evidence to rebut, when allowed, ib. - 
 
 on purchase in name of wife or child, exclusion of, 61 
 advancement by parent or one in loco parentis, 61, G5 
 who are in loco parentis, %5 
 attaches to property agreed to be bought, 
 
 62 
 receipt of rents by father, effect of, ib. 
 effect of Statutes of Elizabeth, ib. 
 purchase of lifehold copyholds by parent, ib. 
 putting in names of self, wife, and 
 
 son, ib. 
 contrary custom bad, ib. 
 sons advanced take successive, ib. 
 freeholds, purchase of, in names of father 
 
 and son, 63 
 previous provision, effect of, ib. 
 insurance in name of son, ib. 
 intention to retain control, ib. 
 purchase to secure vote, ib. 
 
 by husband in wife's name, ib. 
 investment in joint names of husband and wife, 64 
 adding stranger's name in, ib. 
 
 transfer of banking account into joint 
 
 names of husband and wife, ib. 
 payment to wife's account, ib. 
 names of settlement trustees, ib. 
 election between will and advancement, ib. 
 in case of deceased wife's sister or mis- 
 tress, no advancement, ib. 
 investment by widow in joint names of self and child, ib. 
 of daughter and her husband, ib. 
 by woman living apart from husband, 65 
 where son acts as solicitor for parent, ib. 
 purchase in name of natural children, ib. 
 
454 INDEX. 
 
 Resulting Trusts — continued. 
 
 evidence in wi-iting of trast intended, 65 
 
 must be contemporaneous or antecedent decla- 
 rations, ib. 
 revocation of gift by way of advancement, 66 
 subsequent will, effect of, ih. 
 prior will, effect of, ih. 
 reservation of life interest, ib. 
 surrender to uses of will, ib. 
 mortgage or lease, effect of, ib. 
 on purchases in name of strangers, 66 — 69 
 
 may be rebutted by evidence, 67 
 all property subject to rule, ib. 
 secus if object illegal, ib. 
 where purchase by several in name of one, ib. 
 absence of declaration of trust, ib. 
 proof after death, ib. 
 consideration falsely stated, ib. 
 poverty of grantee, ib. 
 evidence as to who paid price, 68 
 of payor's intention, ib. 
 of parol express trust of purchase- 
 money, ib. 
 against nominee's denial, ib. 
 rebuttal as to part, ib. 
 where purchase made with borrowed money, 
 
 *. 
 agent paying price and taking conveyance 
 to himself, ib. 
 without taking conveyance, ib. 
 delay in enforcing, ib. 
 on joint purchases, 69 — 71 
 
 where money advanced in equal or unequal 
 
 shares, 69, 70 
 inequality how to be shown, 69 
 action for contribution, ib. 
 on joint mortgage, ib. 
 
 purchase of equity of redemption, ib. 
 lien of joint purchaser for repairs, &c., 70 
 upon purchaser for partnership purposes, ib., 71 
 
 Eetaineb, 
 
 administrator of defaulting trustee bound to exercise right 
 
 of, 329 
 no right of, in trustee of irrevocable creditor's deed, 38 
 
 secus, if revocable, 41 
 married woman can give, to solicitor in reference to separate 
 estate, 262 
 
INDEX. 455 
 
 Ketieemext . 
 
 of trustees [see New Trustees] 
 
 Eeveesion, 
 
 voluntary trust of equitable, 28 
 
 to be got in for benefit of tenant for life, 95 
 
 where it falls in before conversion, ib. 
 expectant on life-tenant's death, ib. 
 rights of tenant for life in sale of, 115, 116 
 trustee buying, from c. q. t., 184 
 interest in, assignment of [see Assignment ; Notice] 
 alienation of, to separate use, 258 
 
 without acknowledgment, ib. 
 life estate and, may be sold together, 117 
 and leaseholds may be sold together, ii. 
 maintenance out of, secured by policy, 176 
 bar where interest in [see Statute op Limitations] 
 
 Ebvocablb Tkusts 
 
 for creditors [see Cebditoes] 
 
 Revocation 
 
 of voluntary deed by destroying seals, 35 
 of gift by way of advancement, 66 
 
 Eight 
 
 of enti7,[s« Entry] 
 
 EOBBEEY, 
 
 liability of trustees for, 98 
 of executors, ib. 
 
 EuLB against Pbepetuitibs [Peepbtuities, Eule against] 
 
 Safe Custody [see Custody] 
 
 Safety 
 
 of trust property, liability of trustees for, 98 — 100 
 
 Sale [see Sale by Teustebs] 
 
 by purchaser without notice to one with, good, 296 
 
 with notice to one without, when good, ib, 
 though agent with notice, ib. 
 who has not paid price, ib. 
 by married woman restrained from anticipation, 267 
 express trust for, under Statute of Limitations [see Statute 
 
 of Limitations] 
 conduct of, solicitor having, cannot buy, 191 
 
456 INDEX. 
 
 Sale and Exchange [see Power] 
 
 power of, is " usual power " in settlement, 50 
 
 Sale by Trustees, 111 — 130 
 
 trust for, or power of, when to be exercised, 111 
 best price to be obtained on, ib. 
 to be conducted impartially, ib. 
 valuation before, ib. 
 
 costs of, ib. 
 at undervalue, 112 
 by auction or privately. 111 
 description of trustees in particulars on, 112 
 in lots, ib. 
 
 discretion as to portions of estate to be included in, ib. 
 advertisement of, ib. 
 
 on suitable day, ib. 
 reserve price on, ib. 
 
 no buying in without fixing, ib. 
 selling at, after unsuccessful, ib. 
 to co-trustee, ib. 
 opening biddings after, ib. 
 offers, choice between several, on, ib. 
 
 pressure by c. q. t. as to, on, ib. 
 tenant for life not to be favoured on, ib. 
 
 being trustee may exercise power of sale, 113 
 conducting, ib. 
 to raise portions, effect of, on vesting, 160 [see Portions] 
 to pay debts, 101, 113 
 
 where forbidden, 155 
 after action, not without leave of Court, 113 
 when called on by c. q. t., ib. 
 
 specific performance where, is breach of trust, 113, 118 
 injunction to restrain improper, 113, 279, 280 
 co-trustee must concur in, 1 14 
 
 feme coverte cannot, ib. 
 " with all convenient speed," ib. 
 after year from death of testator, ib. 
 neglect by not selling, liability for, ib. 
 refusal to sell at instance of c. q. t., ib. 
 
 where all as. q, t. do not wish sale, ib. 
 delay in, of shares, liability for, 115 
 
 passive trustee, liable for, ib. 
 infant trustee, liability of, ib. 
 costs, where delay not peiwerse, ib. 
 postponement of, not to affect rights, ib. 
 
 adjustment of rights on, ib. 
 
 reversion, sale of, on, ib. 
 
 right of legatees to interest on, ib., 116 
 
INDEX. 457 
 
 Sale by Trustees — continued. 
 
 for fixed period, sale after, 116 
 not to affect rights, ib. 
 acceleration of, n<it to aifect rights, ih. 
 indefinite power of, duration of, ih. 
 
 not a perpetuity, ih. 
 power of, kept alive by sub-settlement, 117 
 ceases though jointure charged, ib. 
 
 not where general power to appoint, ib. 
 under different trusts, where good, ib. 
 joint, with other trustees or owners, where good, ih. 
 of undivided shares, ib. 
 apportionment of price on, ib. 
 by Court, ih. 
 not before sale, ib. 
 onus to prove benefit of, 118 
 of securities [see Securities] 
 of goodwill, 90 
 
 of heirlooms, private Act for, 103 
 of land without timber, 118 
 of timber without land, to pay debts, 118, 124 
 timber-money, wrong payment of, to tenant for life, on, 118 
 
 right to, 107 
 of surface with reservation of mines, 118 
 
 25 & 26 Vict. c. 108, petition under, for, ib. 
 under Settled Estates Act, 1877, s. 19, ib. 
 power of, construed strictly, ih. 
 consent of all cs. q. t. to, ib. 
 parol, ib. 
 antecedent, ib. 
 
 under Settled Estates Act, 119 
 after alienation, ib. 
 bankruptcy, ib. 
 
 sale by bankruptcy trustee, ib. 
 of protector after barring estate tail, ib. 
 where trustees to divide lands among cs. q. t., ib. 
 trustees in partition action representing cs.q. t.,ib. 
 price to be received by trustees or agent appointed by writing, 
 ib. 
 not to be annuity or rent-charge, ib. 
 
 except under Settled Estates Act, s. 18, 120 
 to be paid before possession given, ih. 
 not to be left in part on mortgage, 120, 139 
 reinvestment of, 132 [see Purchase-Money] 
 lease with option to buy not good instead of sale, ih. 
 charge for building and preparing land for, ib. 
 good marketable title to be given on, ib. 
 allowance on, for settling prior claims, ib. 
 
458 INDEX. 
 
 Sale by Trustees — continued. 
 
 indemnity for, 132 
 for raising money advanced out of pocket, 102 
 conditions of sale on, not to be depreciqj;ory, 132 
 
 what are depreciatory, ib. 
 counsel, employment of, to draw, ih. 
 misdescription, 121 
 
 compensation for, ib. 
 succession duty removed to land purchased for reinvestment, 
 
 ib. 
 without excluding rules in Vendor and Purchaser Act, 1874, 
 
 ib. 
 covenant against incumbrances by trustees, ib. 
 
 for title by c. q. t, ib. 
 concurrence in, by c. q. t,, where, ib. 
 
 on sales by Court, ib. 
 of leaseholds, covenants by purchaser on, ib. 
 indemnity as to, ib. 
 to provide for renewal of, 151 
 production of deeds, covenant for^ by trustees, 121 
 conveyance on enfranchisement of copyholds, 122 
 
 of outstanding legal estate, ib. 
 costs of, charge of, 201 
 
 of specific performance action, 122 
 trust for, exercise of, by surviving trustee, ib. 
 
 not executed by mortgage, where, ib. [see Moetgage] 
 does not authorise partition, ib. 
 and exchange authoises partition, 123 
 does not authorise lease, ib. 
 with direction to discharge mortgage, ib. 
 advice petition as to, 109 
 mortgage does not authorize, 123 
 receipt of trustees, on [see Keceipt] 
 
 of trust estate to trustee [see Purchase of Trust Estate] 
 by new trustee before conveyance to him, 214 
 
 Sale Moneys, 
 
 all trustees must join in receipt of, 15 
 doctrine of notice applies to assignment of, 291 
 dower out of, 270 
 
 Satisfaction 
 
 of portion [see Portions] 
 
 of maintenance on portion by subsequent will, 167 
 
 will is not, for gift by voluntary deed, 35 
 
 Savings 
 
 of separate estate [see Separate Estate] 
 
INDEX. 459 
 
 Scotland, 
 
 law of, payment by trustee to wrong persons from ignorance 
 
 of, 230 
 mortgage of land in, whether breach of trust, 143 
 provisions of Thellusson Act extended to, 153 
 
 Seal, 
 
 release under [see Eblease] 
 
 destruction of no revocation of deed, where, 35 
 
 Sbcebt Peefbebncb, 
 
 under trusts for creditors, 40 
 
 Secret Trusts, 79 — 82 
 where they arise, 79 
 founded on personal fraud, ib. 
 nature of the fraud, ib. 
 right of discovery as to, ib. 
 enforced notwithstanding Statute of Frauds, ib. 
 
 Wills Act, ib. 
 parol evidence to support, 80 
 
 silence or conduct of donee, effect of, as acceptance of, ib. 
 must be communicated by testator, ib. 
 wish or expectation not enough to create, ib. 
 discretion in donee does not defeat, ib. 
 uncertainty of property bound, effect of, ib. 
 
 inquiry where, 81 
 ignorance of one of several donees, effect of, ib. 
 where gift is joint or in common, ib. 
 affects only property devised, ib. 
 
 married woman trustee under, husband's right subject to, ib. 
 for charity, 81, 82 
 
 discovery as to, 81 
 
 fraud must be shown, what, 82 
 
 reserving life interest, ib. 
 
 devise in case of death within year under Mort- 
 main Act, ib. 
 
 title of trustee under, ib. 
 
 Seoubbd Creditor, 
 
 valuation of security of, 40 
 
 SBCUBITIEa, 
 
 not sanctioned by Court, to be sold, when, 91 
 wasting [see Getting in Tbdst Estate], 91 — 97 
 discretion as to time of sale of, 89 
 sale of, within a year, ib. 
 
 where liability on shares, ib. 
 
460 INDEX. 
 
 S EOUEITIBS — continued. 
 
 custody of, by trustees, 240 
 by co-trustee, ib. 
 transferable by delivery, safety of, 100 
 for money, mortgage estate passes under, 22 
 
 lands contracted to be sold do not pass under, ib. 
 
 Sbcueitt, 
 
 personal '[see Peesonal Secueitt] 
 
 " sufficient," bond is not, 88 
 
 insufficient [see Investment] 
 
 real [see Investment] 
 
 title-deeds, delivery of, to c. q. t., on, 226 
 
 solicitor taking, for costs, 190 
 
 from agents, trustees need not take, 20 
 
 receiver, given by, 274 
 
 interest where, given to answer breach, of trust, 284 
 
 Sepaeatb Estate, 
 
 mode of creating, 247 
 
 legal estate outstanding, protection of, to, ib. 
 
 husband trustee of, when, ib. 
 
 not when separate property sold during 
 discoverture, ib. 
 disclaimer of, may create, 248' 
 gift to, for livelihood of wife, when it is, ib. 
 ante-nuptial contract by, as to, ib. 
 gifts by, to wife, where, 32, 248 
 paraphernalia, ib. 
 
 expenditure by, on property which is, ib. 
 payment of incumbrances by, on property, which is, 
 
 lien for, ib. 
 gift to, destruction of, by, ib. 
 assent of wife to, ib. 
 evidence of, ib. 
 cheque, 249 
 loan to, proof by wife, for, ib. 
 purchase of land out of, and devise by, ib. 
 acquiescence of wife in dealings by, ib. 
 curtesy of, in, 271 
 Married Women's Property Act, 1870, under, 249 
 
 wages, earnings, legacies, share as next of kin and realty, 
 
 230 
 applies to legacy when paid, ib. 
 
 debts of married women before marriage, under, 250, 263 
 separate trade under, ib. 
 
 earnings under, are equitable assets on death of feme, 251 
 restriction of, to particular marriage, 250 
 recurrence of, on succeeding covertures, ib. 
 
INDEX. 4-61 
 
 Separate Estate — continued. 
 
 suspension of, during disco verture, 250 
 conveyance of, by trustee, during discoverture, 251 
 surrender of, by infant /erne coverte, ib. 
 death of married woman, cesser of, on, ib. 
 
 title of husband as administrator, 
 
 on, ib. 
 trusts over on, effect of, on arrear 
 
 of, ib. 
 creditors, rights of, on, ib. 
 earnings are equitable assets, on, ib. 
 funeral expenses, 252 
 power of appointment of, disposal of capital under, ib. 
 
 money in house passes under, ib. 
 corpus, where trust of, extends to, ib. 
 savings of, are separate estate, ib. 
 land bought with, is, ib. 
 money in a bank, whether, ib. 
 
 given by husband, wlien, 253 
 
 when living apart, ib. 
 accretions of, are separate estate, 252 
 accrued shares, when also, 257 
 arrears of, when, 253 
 words constituting, ib. 
 
 no particular form of, necessary, ib. 
 exclusion of marital right to be shown by, ib. 
 " sole " does not per se create, ib. 
 
 in antenuptial settlement, 254 
 in a will, ib. 
 " sole use independently of husband," 255 
 
 " of future husband," ib. 
 of any other person, ih. 
 sole receipt of rents, ib. 
 separate receipt, 256 
 " free from control of husband," 255 
 " sole control," ib. 
 "only," ib. 
 " absolutely," ib. 
 "at the disposal," 266 
 " proper hands," payment into, ib. 
 " paid," " delivered," ib. 
 " enjoy," ib. 
 " maintenance and support," ib. 
 
 discretion as to, ib. 
 where several gifts by different words, i6. 
 gift of, to separate use of such daughters " as are married," 
 257 
 under precatory trust, 57 
 
462 INDEX. 
 
 Sepaeate Estate — continued. 
 
 under executory trust, 47, 48 
 power of disposition of, 257- — 259 
 
 as if married woman were/fim« sole, 257 
 
 principle as to, ih. 
 
 equitable fee, alienation of, 258 
 
 estate tail, bar of, ih. 
 consent of trustees, unnecessary to, ib. 
 protector, where feme coverte, concurrence of husband 
 
 unnecessary, ib. 
 acknowledgment under Fines and Eecoverles Act, not 
 required, ih. 
 
 under Malins's Act, ih. 
 reversion is subject to, ih. 
 contingent alienation hj feme coverte, 259 
 will of feme coverte, ih. 
 under powei", ih. 
 purchasers witliout notice of, rights of, ih. 
 general engagements^ liability of, for, 259 — 263 
 when made on faith of, 259 
 living apart, where, 260 
 where only payable out of, ib. 
 
 though /erne ignorant of rights, ih. 
 where feme has only life estate and a power, ih. 
 where power by will only, ih. 
 where gift over in default of appointment, 26 1 
 jewels,' i5. 
 bond, ih. 
 
 husband joining in, ib. 
 wife joining in, as surety, ih. 
 covenant, ih. 
 bill of exchange, ih, 
 promissory note, 262, 264 
 lease, agreement for, 262 
 sale, contract for, ih. 
 
 indemnity for calls on shares, to trustees, ib. 
 guarantee, ih. 
 retainer of solicitor and others, ih. 
 
 costs, liability for, ih. 
 debt of husband, when not liable for, ih. 
 
 charge of, on, 263 
 household expenses, ih. 
 support of pauper husband, ib. 
 
 children, ib. 
 after death of husband, ih. 
 proceedings with regard to, 263 — 266 
 
 no personal action against /erne coverte, 263 
 action against /eme coverte and trustees, ih. 
 
INDEX. 463 
 
 Separate EsTATE^confowifed 
 
 husband who has received, 264 
 injunction to restrain husband receiving, ib. 
 form of decree charging {Picard v. Hine), ib. 
 
 where wife surety only, ib. 
 husband to be co-defendant, when, ib. 
 
 co-plaintiff, when, ib. 
 death oifeme covert, remedy on, ib. 
 separation, action to establish separate use, after, 265 
 nuisance, action hj feme coverte for, ib. 
 trespass on, action by husband for, ib. 
 bankrupt, whether /e?rae coverte can be, with respect to, ib. 
 torts, feme coverte not liable for, ib. 
 breach of trust, feme coverte liable for, ib. 
 
 if unrestrained from anticipation, ib. 
 
 secus, if restrained, ib. 
 
 arrears of, liable for, on, 266 
 
 future income, not applicable to repair, ib. 
 fraud, liability of, for, ib. 
 restraint on anticipation, 266 — 268 
 
 all property may be liable to, 266 
 
 annexed to separate use, ib. 
 
 suspension of, during discoverture, ib. 
 
 words creating, 266, 267 
 
 on settlement under executory trust, when, 49 
 
 trust to pay income from time to time is not, 267 
 
 forbidding sale or mortgage is, ib. 
 
 remoteness, where void for, ib. 
 
 Court cannot relieve against, ib. 
 
 acquiescence not excused by, ib. 
 
 breach of trust, effect of, on liability for, 265, 266 
 
 fraud, effect of, on liability for, 266 
 
 compromise, effect of, on, 268 
 
 cash in Court, payment out of, notwithstanding, ib. 
 
 stock in Court not transferred out, where, ib. 
 
 past dividend in Court paid out, notwithstanding, ib. 
 
 Settled Estates Act, sale moneys under, remain liable 
 
 to, ib. 
 Divorce Act, payment out after protection order under, 
 ib. 
 
 Separate Use [see Separate Estate] 
 
 Separation, 
 
 trust for future, void, 83 
 
 should follow on deed, 84 
 
 new trustees of deed for, 204 
 
 action after, to establish separate use, 265 
 
46 1 INDEX. 
 
 Sequestratob, 
 
 entitled to past dividend in Court of separate estate, 268 
 
 Servant, 
 
 married woman may hire, with reference to separate estate, 
 
 262 
 time for discharging, 90 
 
 Service, 
 
 out of jurisdiction [see Foreign Propeety] 
 of petition for opinion of Court, 110 
 
 Settled Estates Act [see Statutes] 
 
 application of fund in Court under, 106 
 
 Settlement, 
 
 voluntary [see Voluntary Trusts] 
 
 cancellation of, 31 
 
 reformation of, ib. 
 
 effect of death upon, when unexecuted, 34 
 void as against rule against perpetuities, how far, 152 
 rectification of [see Rectification] 
 
 strict, prevents trust estates passing by general devise, 21 
 funds, trustees should get transfer of, 87 
 covenant in, by husband, should be enforced, ib. 
 of fund advanced under power, 179 
 of timber-money wrongly paid to life- tenant, 118 
 
 Settlor, 
 
 of equitable estate getting in legal estate, 35 
 cannot revoke by destroying seals, ib. 
 retainer by, of voluntary settlement, 34 
 death of, effect of, ib. 
 
 acting on power of attorney after, ib. 
 
 Set-off, 
 
 of beneficial interest of trustee against breach of trust, 220 
 by debtor to c. q. t. of debt owing by trustee, 294 
 
 Severing Defence [see Defence] 
 
 Shares, 
 
 voluntary trust of, 29 
 
 covenant to transfer, 30 
 letter declaring voluntary trusts of, without more, where, 31 
 
 where it is appointment 
 under power, ib. 
 trustee not bound to replace, when bought from c. q. t, 193 
 following, belonging to trustee who neglects to buy others, S04 
 passing by delivery, custody of, 100 
 
INDEX. 465 
 
 SuAREa — continued. 
 
 required to be registered in single name, 100 
 liability of trustees for calls, on delay in selling, 115 [see Calls] 
 calls on, indemnity for, by mariied woman to trustees, 262 
 new, trustees may not accept, 139 
 
 Shelley's Case, 
 
 effect of, upon executory trusts, 43 
 
 SiGNATUEE, 
 
 what is sufiBcient, under s. 7 of Statute of Frauds, 26 
 
 Simple Contract Debt [see Debt] 
 
 distinction as to, abolished by 32 & 33 Vict. c. 46, where, 14 
 
 Sinking 
 
 of portions [see Portions] 
 
 Sinking Fund, 
 
 making, to pay debts, by means of term, 155 
 
 to secure other part of devised property, ih. 
 for meeting fines for renewal of leases, 153 
 
 Sole Use [see Separate Estate] 
 
 Solicitor, 
 
 not trustee for client, 309 
 accounts as trustee for acts beyond duty, 303 
 or fraudulently, ib. 
 where money entrusted for mortgage, ib. 
 trustees not to employ mortgagor's, 142 
 liable for fraud of, ib. 
 
 forgery by, ib. 
 constructive notice by notice to, 290, 297 
 
 where employed for all parties, 297 [see 
 Notice] 
 to trust, maybe trustee, 211 
 who is trustee may act for the trust, 197 
 
 can charge only costs out of pocket, ib. 
 though employed by co-trustees, ib. 
 partner of, may act, when, 197, 198 
 remuneration to, reference as to, 198 
 without reference, ib. 
 may charge costs to another client, ib. 
 
 if settlement so directs, 199 
 after action brought, 200 
 verbal agreement at to costs by, ib. 
 extra costs beyond provision, ib. 
 reference as to, ib. 
 
466 INDEX. 
 
 SoLlciTOE — con tinued. 
 
 liability of co-trustees for receipts by, 239 
 non-investment by, remedy for, 324 
 who is mortgagee cannot charge commission on rents, where, 
 201 
 can have only costs out of pocket, 197 
 buying equity of redemption, 186 
 buying from client, 189 
 
 accidental advantage in, ib. 
 inadequate value, ih. 
 where client debtor to, ib. 
 
 mortgage to secure costs, 190 
 where no duty to advise client, ib. 
 separate advice, effect of absence of, ib. 
 where relation of solicitor and client ceased, ib. 
 proof of payment of price by, ib. 
 sale by, of one client's property to another, ib. 
 gifts to, ib. 
 
 conduct of sale, having, cannot buy, 191 
 misapplication by, 19 
 
 by partner of, 325 
 of c. q. t. cannot authorise sale of trust estate to trustee, 184 
 cannot give receipt for trust money, 18 
 
 for purchase money, ib. 
 unless trustees give written authority, 18, 119 
 may receive money in ordinary course, 18 
 but not pay it to his own account, ib. 
 should not have money before it is required, ib. 
 liable if he takes receipt of only one trustee, 19 
 may charge for collecting rent, when, 202 
 to creditors being trustee of deed for them, effect of, 38 
 son acting as, for parent in purchase in son's name, 65 
 separate estate liable for retaining, 262 
 striking, off Eolls, 282 
 
 Son, 
 
 eldest, meaning of \see Portions] 
 younger, meaning of \see Poetions] 
 
 Sovereign [see Crown] 
 
 Specialty, [«ee Debt] 
 
 Specific Performance, 
 
 of sale amounting to breach of trust not decreed, 113 
 
 on contract of /erne coverte trustee, 114 
 of contract for sale by settlor after voluntary settlement, 36 
 
 against him, ib. 
 interrogatories by defendant as to trusts in action for, 193 
 costs of action for, 123 
 
IKDEX. 467 
 
 Stakeholder, 
 
 trustee guilty of breacli of trust, accounts as, 327 
 
 Stale Demand [see Statute op Limitations] 
 
 Stamp, 
 
 on deed appointing new trustees, 215 
 where two deeds, ib. 
 
 Statement op Claim, 
 
 disclaiming defendant should not traverse, 11 
 interest should be prayed by, where, 284 
 
 Statutes, 
 
 27 Hen. VIII. c. 10 (Statute of Uses), 1, 2 
 34 & 35 Hen. VIII. c. 5 (Wills), 259 
 13 Eliz. c. 5 (Creditors), 35, 36, 62 
 27 Eliz. c. 4 (Purchasers), 35, 62 
 22 & 23 Car. II. c. 10 (Distributions), s. 5, 180 
 29 Car. II. c. 3 (Frauds) s. 7, 25, 26, 85, 112, 243 
 s. 8, 61 
 [see Statute op Frauds] 
 
 9 Geo. II. c. 36 (Mortmain), 153 
 
 39 & 40 Geo. III. c. 98 (Thellusson Act), 153—166 
 41 Geo. III. c. 90 (Attachment), 276 
 11 Geo. IV. & 1 W. IV. c. 40 (Executors), 243 
 3 & 4 W. IV. c. 27 (Limitations), s. 5, 319 
 
 s. 24, 312 
 s. 25, 306 
 s. 26, 296, 320 
 s. 27, 316 
 c. 71 (Fines and Recoveries), s. 24, 258 
 1 Vict. 0. 26 (Wills), 259 
 
 ss. 30, 31, 4, 5, 6, 7 
 1 & 2 Vict. 0. 110 (Judgments), 284 
 8 & 9 Vict. c. 16 (Companies Clauses), s. 20, 140 
 18 (Lands Clauses), s. 69, 105 
 106 (Real Property), 295 
 
 10 & 11 Vict. c. 96 (Trustee Relief), 175, 205, 208 
 
 11 (fe 12 Vict. c. 36 (Accumulations, Ireland), s. 41, 153 
 13 & 14 Vict. c. 60 (Trustee Act), s. 2, 209 
 
 ss. 32, 40, 215 
 s. 46, 243 
 15 & 16 Vict. c. 55 (Trustee Extension), 209 
 
 s. 8, 243 
 86 (Declaration of Rights), s. 50, 234 
 (Accounts), s. 54, 229 
 
 H H 2 
 
468 INDEX. 
 
 Statutes — continued. 
 
 19 & 20 Vict. c. 97 (Mercantile Amendment), s. 5, 333 
 
 20 <fe 21 Vict. 0. 57 (Malins' Act), 258 
 
 85 (Divorce), 268 
 
 ss. 21, 25, 257 
 
 22 ifc 23 Vict. c. 35 (St. Leonards), 96, 127 
 
 (Timber), s. 13, 118 
 
 ss. 14—18, 127 
 s. 21, 213 
 (Eeceipts), s. 23, 91, 124, 127 
 (Power of attorney), s. 26, 235 
 (Advice Petitions), s. 30, 108—110 
 (Indemnity), s. 31, 237 
 (Investment), s. 32, 131, 132 
 71 (Costs of trustee), s. 29, 199 
 
 23 k 24 Vict. c. 38 (Investment), 96, 132, 133 
 
 125 s. 11, 123 
 
 145 (Lord Cran worth's), ss. 4, 5, 6, 132 
 
 ss. 8, 9 (Renewals), 148 
 s. 25, ] 33 
 (Maintenance), s. 26, 171 
 (Rec3ipts), s. 29, 124 
 
 24 & 25 Vict. c. 94 (Stamps), 215 
 
 96 (Larceny), ss. 75, 80, 86, 281, 282 
 145 (New Trustees), s. 27, 203, 204 
 
 25 & 26 Vict. c. 89 (Companies), s. 30, 140 
 
 108 (Reservation of Mines), 118 
 27 & 28 Vict. c. 114 (Improvement of Land), ss. 9, 24, 49, 66, 
 
 107 
 30 k 31 Vict. c. 132 (East India Stock), 133 
 
 32 & 33 Vict. c. 46 (Debts), 14, 333 
 
 62 (Debtors), s. 4, 276 
 71 (Bankruptcy), s. 6, 210 
 . s. 12, 277 
 
 s. 15, 208 
 
 s. 49, 210 
 
 s. 91, 35 
 
 s. 117, 209 
 
 33 Vict. c. 14 (Aliens), 244 
 
 33 & 34 Vict. c. 23 (Convict's Property), 199, 243 
 
 56 (Limited Owner's Residences, 1870), 106 
 93 (Married Women's Property), 250 
 
 97 (Stamps), 215 
 
 36 & 37 Vict. 0. 66 (Judicature), s. 24, sub-s. 3, 331 
 
 s. 25, sub-s. 2, 306 
 sub-s. 6, 288 
 sub-s. 10, 207 
 
 37 k 38 Vict. c. 50 (Married Women's Property), 250, 263 
 
INDEX. 469 
 
 Statutes — continued. 
 
 37 & 38 Vict. c. 57 (Limitations), 306, 312, 316, 319, 321 
 
 78 (Vendor and Purchaser), 121, 145, 146 
 
 38 & 39 Vict. 0. 77 (Judicature Act, 1875), s. 10, 40 
 
 87 (Land Transfer), s. 48, 224 
 
 40 & 41 Vict. 0. 18 (Settled Estates), 106, 118, 119, 120, 134, 
 
 268 
 
 41 & 42 Vict. c. 54 (Debtors), 276 
 
 Statute op Frauds, 
 
 declarations of trust to be proYcd by writing, 25 
 
 personalty not within, ib. 
 
 copyhold within, ib. 
 
 leaseholds within, 26 
 
 mode of proof of trust under, 25 
 
 trust under, to be completely declared, ih. 
 
 c. q. t. person to declare trust under, ih. 
 
 Crown not bound by, 26, 243 
 
 charitable trusts are within, 26 
 
 signature required by, ih. 
 
 benefit of, cannot be claimed to support illegal conveyance, ih. 
 
 mode of pleading (Ord. xix. r. 23), ih. 
 
 not by demurrer, ib. 
 cannot be pleaded by particeps criminis in a fraud, 85 
 description of trustees as vendors under, 112 
 
 Statute op Limitations, 
 
 debts barred by, at death of testator, not renewed by trust to 
 pay debts, 39 
 where trust to pay debts of another, ih. 
 time stops at the death, ih. 
 remedy must be obtained without delay, ih. 
 time runs where duty of executors to pay, ih. 
 direction to pay, ih. 
 
 prevents lapse, ih. 
 liable to duty, ib. 
 receipt for, by partners, 40 
 where debt unclaimed, ih. 
 exr>ress trust not barred by, under s. 25 of 3 & 4 Will. IV. 
 
 c. 27, 306 
 until purchase for value, ib. 
 under Eeal Property Limitation Act, 1874, ih. 
 
 Judicature Act, 1873, ih. 
 scope of s. 25, ib. 
 
 not applicable to constructive trusts, 75, 
 
 307 
 applies to person claiming under trustee, ih. 
 what are, 306 
 
470 INDEX. 
 
 Statute of Limitations — continued. 
 
 of trust legacy assented to by executor, 301 
 
 seats, if not set apart, 308 
 laches of legatee, ib. 
 trust by devisee to pay his testator's debts and 
 
 legacies is, ib. 
 for claimants on pension fund, ib. 
 for sale, 308 
 
 election against exercise of, eiFect of, 308 
 covenant to settle is, where, 309 
 solicitor receiving and paying for client not, ib. 
 agent to sell and invest, is, ib. 
 bankers, relation of, to customers is not, ib. 
 for annuitants under receivership deed, ib. 
 debts, annuities, or legacies, charge creates no, 
 311, 312 
 
 trust for, wiU not under new Act, 312 
 past creditors, 309 
 
 of lease renewed by tenant for life, ib. 
 of fee-farm grant to remainderman, ib. 
 in trustee de son tort, ib. 
 
 acting though trust estates did not 
 pass, 310 
 in executor managing testator's business, ib. 
 vendor's lien does not create, 310 
 mortgage by trust for sale does not create, ib. 
 
 though in name of trustee for mort- 
 gagee, ib. 
 surplus sale-money under trust for, is, ib. 
 power of sale may create, how, ib. 
 guardian and ward, relation of, is, ib. 
 
 infant's land, entry of, on, when and 
 how to account, 311 
 charities, ib. 
 equitable claims, 
 
 by s. 24, are barred as if legal, 312 
 
 for waste, 313 
 
 implied trusts barred by laches, ib. 
 
 rules of Courts of equity as to, 313, 314 
 
 executor of trustee liable for breach of trust, 314 
 
 term remaining undisturbed in trustees saves equitable 
 
 rights, 314 
 possession of c. q. I. not adverse to trustee, ib. 
 of cs. q. t. inter se not adverse, 315 
 trustee barred if c. q. t. barred, ib. 
 
 mistake of, as to who are cs. q. t., ib. 
 c. q. t. barred if trustee barred, when, ib. 
 acknowledgment, effect of, ib. 
 
INDEX. 471 
 
 Statute of Limitations — continued. 
 
 by one trustee, 316 
 action saves rigbt, ib. 
 demurrer, Statute may be set up by, ih. 
 delay and acquiescence, 316 
 
 s. 27 saves rules of equity as to, ib. 
 presumption from, ib. 
 
 of release or assent, 317 
 burden of proof, ib. 
 accounts after death of accounting party discouraged, ib. 
 admission of correctness of old, 318 
 where evidence ought to have been preserved : 
 
 costs, ib. 
 continuing and open, time doe§ not run, where, 
 
 ib. 
 after means of resisting claim destroyed, 317 
 common mistake, c. q. t. not barred by, 318 
 ignorance of rights prevents acquiescence, 296, 318 
 slight delay does not amount to acquiescence, 318, 319 
 representatives of deceased partner when bound by ac- 
 quiescence, 319 
 creditors when bound by, ib. 
 express trusts may be barred by acquiescence, ib. 
 reversionary interests when barred by, 319, 320 
 contingent interests, 320 
 remainder, ib. 
 
 poverty no excuse against, ib. 
 fraud (s. 26), 320 
 
 prevents bar till discovery, 320, 321 
 inquiry as to time of discovery of, 321 
 suspicion, case of, distinguished, ib. 
 nature of, 322 
 
 person receiving trust money liable on ground of, ib. 
 claim against, not barred, ib. 
 borrowing, is also trustee, ib. 
 particeps criminis cannot set up Statute, ih. 
 dulness of intellect no excuse for not discovering, ib. 
 lunacy is excuse, ib. 
 mesne profits, 323 
 
 account of, from accruer of title, i6. 
 from action brought, ib. 
 
 where no notice of plaintiff's title, ib. 
 where deeds not in defendant's custody, 
 
 ib. 
 where delay, ih. 
 infant, action by, for, ib. 
 representatives, against, ih. 
 mistake, in case of, ih. 
 
472 INDEX. 
 
 Statute op Uses, 
 
 devise of freeholds by analogy to, 1 
 
 application of, to wills, 1 
 
 analogy of, not applied to devise where trust coupled with 
 
 duty, 2 
 copyholds not within, 1 
 leaseholds not within, 1 
 
 Stock, [see Investment] 
 
 voluntary covenant to transfer, 30 
 
 trustee should not give power of attorney to co-trustee to 
 
 sell, 17 
 restraint on anticipation prevents transfer out of Court of, 263 
 interest where, sold out, 285 
 
 Stock-in-Tbade, 
 
 voluntary trust of, 29 
 
 Stock Mobtgage [see Investment] 
 
 Steict Settlement [see Executobt Teusts] 
 
 prevents trust estates passing by general devise, 21 
 
 Subsettlement, 
 
 keeps power of sale alive, 117 
 
 Succession Duty, 
 
 charged on land purchased for reinvestment in lieu of estate 
 sold, 121 
 
 Supebstitious Uses [see Illegal Teusts] 
 SuPPOBT [see Maintenance] 
 
 SUBETT, 
 
 in bond, concurrence of, no excuse for loan on personal 
 
 security, 137 
 married woman joining as, 261 
 
 SUBPACE, 
 
 sale of, without mines, by trustees, under 25 & 26 Vict. c. 108, 
 118 
 petition for, ib. 
 
 under Settled Estates Act, 
 s. 19, ib. 
 
 SUEEENDER, 
 
 of lease, power to take, passes legal fee, 6 
 
 of life estate not allowed to accelerate power to charge, 116 
 
 voluntary covenant to, copyholds, 30 
 
 to use of will, effect of on purchase in son's name, 66 
 
INDEX. 473 
 
 Survivor, 
 
 of trustees, power of, to appoint new trustees, 203, 208, 209 
 of separation deed, 204 
 exercise of power of sale by, 122 
 power of devisee of, to execute trusts, 24 
 being heir, ib. 
 of executor of, ib. 
 
 where no estate given to trustees, ib. 
 rights of, on joint purchases, 69 — 71 [see Resulting Trusts] 
 
 Suspicion 
 
 of fraud, effect of delay on case founded on, 321 
 
 Taxes, 
 
 trustees to pay taxes take legal fee, 6 
 
 Taxing Master, 
 
 to apportion costs where trustees sever defence, ib. 
 
 Tenants in Common [see Tenants in Common] 
 
 general devise to, with accruer or not, prevents trust estates 
 passing under it, 22 
 
 or to a class as, ib. 
 
 Tenant fob Life, 
 
 entitled to possession, 221 
 
 unless contrary intention, ib. 
 powers of, ib. 
 mismanagement by, ib. 
 
 turned out of possession wrongfully by trustees, 222 
 let into possession on terms, when, ib. 
 cutting timber wrongfully, ib. 
 right to vote for Parliament, ib. 
 not for coroner, ib. 
 rights of, in reversions or contingencies, 95 
 
 to income of proper investments, ib. 
 
 how estimated, ib. 
 to income of investments at very high interest, 96 
 
 to rents of real estate, ib. 
 to income of improper investments, ib. 
 inconvertible property, ib, 
 accumulations, ib. 
 
 fund to meet contingent legacies, 97 
 duty of, to keep down interest on charges, when, 96 
 not to be favoured on sale by trustees, 112 
 being trustee, may exercise power of sale, 113 
 conduct of sale by, ib. 
 
474 INDEX. 
 
 Tenant for Life — continued. 
 
 consent of, to sale by trustees, 119 
 after alienation, ib. 
 
 bankruptcy, ih. 
 as protector, after barring entail, ih. 
 though to consent to sale, may buy trust estate, 188 
 
 duty to disclose knowledge, 189 
 rights of, unaffected by delay in sale, 115 
 adjustment of, ih. 
 
 reversion, ih. 
 may obtain lease to himself, 186 
 loan to, 138 
 
 consent of, to transposition of securities, 134 
 varying investment for benefit of, 1 35 
 
 probability of issue as to, 136 
 sale or mortgage by, does not prevent appointment of new 
 
 trustees, 214 
 may be trustee, 211 
 
 of lease, buying fee, to keep down charges on lease, 78 
 is constructive trustee of money received for withdrawing 
 opposition to bill, 73 
 
 for enfranchisement, ih. 
 right of, to accumulations until investment in land, 147 
 to timber, 107 
 to gravel worked, ih. 
 to fines on grants of waste of manor, ih. 
 with precatory trust over, may out timber, &c., 55 
 
 must leave property in statu quo, 56 
 power of, to charge for rebuilding, 107 
 to keep down interest on charge for improvements under 27 
 
 & 28 Vict. c. 114, 107 
 right of, to income of wasting property, when, 91 — 97 
 sale of reversion for benefit of, 116 
 title-deeds, custody of, by, 226, 227 [see Title Deeds] 
 overpayment to, remedy for, 327 
 
 of income of wasting property, 231 
 wrong payment of timber- money to, 118 
 husband who is, does not lose interest by divorce, 235 
 liability of, on sale or mortgage for renewing leases, 151 
 renewing lease in settlement, 75 [see Constructive Trusts] 
 not express trustee of renewed lease, 309 
 obligation of, to renew leases, 75, 148, 149 
 when bound to renew is a trustee, 149 
 
 receiver where he does not, ih. 274 
 personal liability, 150 
 lien of, for renewal fines, ib. 
 
 following trust-money into land bought therewith by, 304 
 lien on the land, ib. 
 
INDEX. 475 
 
 Tenant for Life — continued. 
 
 presumption of purchase to uses of settlement, 305 
 trustee, interest of as, impounded for breach of trust, if 
 equitable, 219 
 secus if legal, ib. 
 legal fee simple not taken after death of, unless required, 2, 5 
 under Wills Act [see Lega-L Estate] 
 
 Tenant from Year to Year, 
 
 renewal by executor, where testator was, 74 
 
 Tenant in Tail [see Estate Tail] 
 
 Tenant at Will, 
 
 renewal by executor, where testator was, 74 
 
 Tenancy in Common, 
 
 by unequal payment of purchase-money, 69 
 
 by equal payment, where, 70 
 
 on purchases for trade purposes by partners, ib. 
 
 where joint tenancy construed as, in executory trusts, 46, 49 
 
 of portion fund prevents merger, when, 169 
 
 [see Secret Trusts] 
 
 Term, 
 
 vesting legal estate in, in trustees, 1 
 
 where whole term not required, 2 
 equitable, effect of giving, upon legal estate in trustees, 9 
 limitations of, tending to perpetuity, void, 152 
 
 unless in trust to attend, ib. 
 
 charge to be raised by excessive, ib. 
 legal estate in, effect of getting in, 297 
 for raising money to pay debts, 155 
 to secure portions [see Portions] 
 effect of, in trustees to save equitable rights, 314 
 lessor's title not shown on purchase of, 144 
 
 Testator, 
 
 creation of secret trust by [see Secret Trusts] 
 
 Theft [see Fraud] 
 
 Thbllusson Act [see Accumulation] 
 
 Thinnings [see Timber] 
 
 Timber 
 
 cutting, power of, by trustees, 107 
 for repairs, ib. 
 decaying, ib. 
 
476 INDEX. 
 
 Timber — continued. 
 
 for thinning plantations, ih. 
 selling, to pay for other timber for repairs, ib. 
 proceeds of, right to, ih. 
 accumulations of produce of, not limited by Thellusson Act, 
 
 153 
 tenant for life with precatory trust over may cut, b5 
 wrongful fall of, by life-tenant in possession, 222 
 title deeds, retainer of, by c. q. t. after wrongful fall of, 226 
 raising money to pay debts out of, 155 
 sale of, to raise portions, 165 
 land not to be sold by trustees without, 118 
 sale of, without, to pay debts, ih. 
 proceeds of, wrongly paid to tenant for life, ib. 
 estate, investment in, 147 
 
 Time 
 
 of sale by trustees [see Sales by Tettstees] 
 for coming in under trust for creditors, 37, 38 
 
 where there is a covenant not to sue, ih. 
 bar by \_see Statute op Limitations] 
 
 Title 
 
 on purchase of land by trustees, 144 
 
 by Court, ih. 
 under Vendor and Purchaser Act [see Investment] 
 trustees to give good marketable, 120 
 of c. q. t. to payment [see Cestui que Trust] 
 
 Title-Deeds, 
 
 custody of, by c. q. t. for life, 226 
 
 taking them out of jurisdiction, ih. 
 allowed on terms, where, ih. 
 by trustees, ih. 
 where action pending, ih. 
 abuse of, by mortgage in fee, ih. 
 remainderman, action by, for, 227 
 production of cases and opinions, ih. 
 safety of, 100 
 loss of, effect of, on right of c. q. t. to conveyance of legal 
 
 estate, 223 
 leaving, in hands of co-trustees, 240 
 
 not ordered to be delivered up by purchaser without notice, 
 295 
 where deeds are with equitable mortgagee, ih. 
 account of mesne profits against a defendant who has not, 
 
 323 
 voluntary trust of, 30 
 
INDEX. -4.77 
 
 TOETS, 
 
 separate estate not liable for, 265 
 
 Tracing 
 
 trust-money [see Following Trust Estate] 
 
 Trade, 
 
 risking money in, 137 
 
 allowing money to remain in, 239 
 
 carrying on, by trustees, for winding up, 89 
 
 by executors, liability on, 90 
 
 indemnity against, ib. 
 property, mortgage of [see Investment" 
 interest on profits made in, hy trustee see Interest] 
 advancement to establish wife in, 179 
 separate, of married woman, 250 
 
 Transfer, 
 
 voluntary covenant to, stock or shares, 30 
 mode of making voluntary trust by legal, 28 
 incomplete, by indorsement on share certificates, 29 
 assignment by deed, ib. 
 not construed as declaration of trust, 27, 29 
 of shares to trustee makes him liable for calls, 140 
 trustees should get, of trust funds, 87 
 of trust property to new trustee, execution of, 207 
 of fund in (.ourt to husband by wife's consent, 32 
 injunction to restrain, of trust-money, 301 
 
 Trespass 
 
 on separate estate, action by husband for, 205 
 
 Trouble, 
 
 allowance for [see Allowances] 
 
 Trust, 
 
 acceptance of [see Acceptance] 
 
 to accumulate [see Accumulation] 
 
 for advancement [see Advancement] 
 
 breach of [see Breach of Trust] 
 
 charitable [see Charity] 
 
 constructive [see Constructive Trusts, 72 — 78] 
 
 for creditors [see Creditors] 
 
 Crown, rights of with reference to, 242 — 244 
 
 [see Crown] 
 to pay debts, gives power to give receipts, where, 
 
 [see Eeobipt] 
 to pay debts authorises sale or mortgage, 101 
 delegation of [see Delegation] 
 
478 INDEX. 
 
 Trust — continued. 
 
 discretionary, cannot be delegated by grant or devise, 20 
 
 even to co-trustee, ib. 
 executory [see Executory Trusts] 
 express [see Statute op Limitations] 
 failure of, Court prevents, 103 
 of foreign property [see Foreign Property] 
 illegal [see Illegal Trusts] 
 immoral [see Illegal Trusts] 
 for illegitimate children [see Illegal Trusts] 
 implied, for maintenance, 175 
 implied, to renew leases, 149 
 for investment [see Investment] 
 legal estate required to support [see Legal Estate] 
 for maintenance [see Maintenance] 
 to raise money by mortgage does not authorise sale, 124 
 notice of, to companies [see Notice] 
 power in nature of, execution of, by Court, 103 
 
 mode of execution, ib. 
 precatory [see Precatory Trusts] 
 to secure portions [see Portions] 
 to preserve contingent remainders [see Contingent Eemain- 
 
 DERS] 
 
 for renewal [see Eenewal op Lease] 
 
 resulting [see Resulting Trusts] 
 
 sale, for [see Sales by Trustees ; Trust for Sale] 
 
 secret [see Secret Trusts] 
 
 separate use, for [see Separate Estate] 
 
 effect of Statute of Frauds as to, 25, 26 
 
 [see Statute op Frauds] 
 void as perpetuities [see Perpetuities, Rule against] 
 voluntary [see Voluntary Trusts] 
 
 Trustee de Facto, 
 
 trustee imperfectly appointed who accepts is, 14 
 
 Trustee de son Tort, 
 
 trustee imperfectly appointed, who assents is, ib. 
 devisee of trust estates which do not pass acting is, ib. 
 
 Trust por Sale [see Sales' by Trustees] 
 trustees under, take fee simple, 6 
 prevents trust estates passing by general devise, 21 
 land contracted to be sold passes under devise in, 22 
 authorises cleai'ing title from doubtful claim, 101 
 to pay off mortgage, allows sale subject to mortgage, 124 
 does not authorise partition, 123 
 building house on land subject to, 106 
 
INDEX. 479 
 
 Tbusteb, 
 
 acceptance of trust by [see Aoceptanoe], 12 
 
 acceptance by original, of voluntary trusts of equitable 
 
 estate, 28 
 accounts, duty of, to keep and be ready with [see Accounts] 
 allowances to [see Allowances] 
 annuity to, for trouble, 200 
 
 may apply to Court if unexpected questions arise, 205 
 at cost of estate, when, ib. 
 if doubtful whether trusts have ceased, 206 
 where c. q. t. refuses to let him retire, ib. 
 cannot apply to Parliament without leave of Court, 103 
 attachment of [see Attachment] 
 banker, who is [see Banker] 
 bankruptcy of [see BANKRUPTcr ; Receiver] 
 having beneficial interest is within Trustee Acts, 210 
 bare, definition of, 224 
 calls on shares, liability of, for, 140 
 c. q. t. out of possession, may not keep, 221 
 
 [sec Tenant foe Life] 
 of charity, order for payment to all or any, 1 6 
 
 majority of, can bind minority, 15 
 contingent remainders, to preserve [see Contingent Re- 
 mainders] 
 contract by, with c. q. t. for remuneration, 201 
 
 valid if without pressure, ib. 
 
 separate advice as to, ib. 
 
 with co-trustee, ib. 
 conveyance by, of legal estate [see Conveyance] 
 co-trustee, liability of, for acts of [see Co-trustee] 
 for creditors [see Creditors] 
 
 of creditor's deed, has no right of retainer though executor, 38 
 criminal liability of, 281, 282 
 de son tort, or de facto, 241 
 
 person acting though legal estate did not pass is, ib. 
 
 settlor of sum falsely reciting payment is, ib. 
 
 liability of, ib. 
 
 ignorance by, of title, ib. 
 
 agent, where, ib. 
 
 an express trustee, when, 309 
 devise by, of trust estates [see Devise op Trust Estates] 
 disclaimer of [see Disclaimer] 
 discretion, consulting c. q. t. as to exercise of, 102 
 
 [see Discretion] 
 dividends, one, can receive, 15, 16 
 felon, appointment of new trustee where, 209 
 to get in trust estate, duty of, 87 
 
 [see Getting in Trust Estate] 
 
480 INDEX. 
 
 Trustee — continued. 
 
 husband is, for wife's fortune, covenanted to be transferred by 
 
 him, 87 
 indemnity to [see Indemnity] 
 infant heir of deceased vendor, 225 
 injunction against [see Injunction] 
 
 interest for breach of trust chargeable against [see Interest] 
 must act jointly [see Bankruptcy ; Charity ; Court] 
 in giving receipts for trust funds, 15 
 in proving debts, ih. 
 
 except in special cases, 16 
 must all join in advances of trust money, 15 
 
 receipt of sale moneys, ih. 
 lease, must not take to himself, 185 
 
 to relative, ih. 
 legacy to [see Legacy] 
 
 vesting legal estate in [see Legal Estate], 5 — 7 
 take fee under what devises [see Legal Estate] 
 may be compelled to enforce legal right, 277 
 
 though action deferred at instance of c. q. t, ih. 
 refusal to enforce voluntary covenant, 279 
 c. q. t. barred by trustee's delay, ih. 
 using trustee's name to sue, ih. 
 pleading, form of, ih. 
 money advanced out of pocket by, remedy of, for, 102 
 ne exeat against [see Ne Exeat] 
 new [see New Trustees] 
 notice to [see Notice] 
 
 notice to, of voluntary trust of equitable estate, 28 
 notice, neglect of, to give to office of voluntary assignment of 
 
 policy, 30 
 obtaining opinion of Court by petition of, 108 — 110 
 
 discharge of, by, 108 [see Advice Petitions] 
 under parol declaration of trust, 33 [see Voluntary Trusts] 
 payment into Court by, by order [see Payment into Court] 
 payment by, to c. q. t. [see Cestui que Trust] 
 to co-trustee [see Co-trustee] 
 on doubtful appointment, 102 
 permanent improvements by, 106 
 personally, must act [see Delegation] 
 profit of [see Allowances] 
 powers of [see Powers] 
 
 to grant waste of manor, 107 
 fencing, 108 
 
 to consent to marriage [see Consent] 
 to take siirrender of leases passes legal fee, 6 
 receiver with salary may be, when, 202 
 release, right of, to [see Release] 
 
INDEX. 481 
 
 Trustee — continued. 
 
 removal of [see Kemoval] 
 
 renewal by, in their own name [see Consteuctive Trusts] 
 
 remvineration, refusal of, to act without, 200 
 
 petition of, for, ih. [see Allowances] 
 retiring [see New Trustees] 
 robbery or fraud, liability of, for, 98 
 sales by [see Sales by Trustees] 
 secret [see Secret Trusts] 
 should not sever defence, 16 [see Defence] 
 separate use, for [see Separate Estate] 
 of separation deed, appointment of new, 204 
 solicitor who is [see Solicitor] 
 solicitor liable for misapplication by, 19 
 though solicitor a trustee, ih. 
 to be joined in action against, ib. 
 tenant for life bound to renew is a, 149 
 timber, cutting, [see Timber] 
 title-deeds, custody of, by, 226 [see Title-Deeds] 
 of West Jndian Estate [see Allowances] . C^i^r- 
 
 Trust Estate [see Devise of Trust Estate] 
 getting in [see Getting in Trust Estate] 
 dower out of, 269 
 curtesy out of, 270 
 freebench, none out of, ih. 
 
 purchase of, for value, without notice [see Following Trust 
 Estate] 
 
 Turnpike Bonds [see Investment] 
 
 Uncertainty, 
 
 resulting trust from, 59 
 
 as to property affected by secret trust, 80 
 
 inquiry where, 81 
 of direction to settle, 50, 51 
 
 Undervalue, 
 
 sale by trustees at, 112 
 
 Undivided Shares 
 
 should be sold together, 117 
 
 apportionment of price, ih. 
 
 'legal estate follows on devise of fi-eehold, 1 
 
4S3 INDEX. 
 
 Uses, 
 
 Statute oi[see Statute of Uses] 
 
 Valuable Consideration [see Consideration] 
 
 Valuation, 
 
 to be made before sale by trustees, 111 
 
 costs of, ib. 
 
 before mortgage, to be obtained by trustees, 141 
 
 to be independent, ib. 
 
 of speculative property, ib. 
 
 of trade property, ib. 
 new, on re-advancing on same property, 142 
 of security of secured creditor, 40 
 
 Value [see Consideration] 
 
 proof of, by agent buying, 187 
 
 purchaser for [see Following Trust Estate] 
 
 Varying Securities 
 
 power of, is " usual power " in settlement, 50 
 
 Vendor [see Sales by Trustees] 
 
 dying before conveyance not "bare trustee,'' 224 
 
 where he leaves infant heir, 225 
 is constructive trustee after contract for sale, 21, Y2 
 devise of trust estates by, passes estate contracted to be sold, ib. 
 liability of, for rents, waste, ifec, after sale, 73 
 lien of, defence of purchase without notice good against, 296 
 abandonment of, ib. 
 is not an express trust, 310 
 
 Vendor and Purchaser Act, 1874 [see Investment; Sales by 
 Teustebs] 
 
 Vesting, 
 
 legal estate in trustee [see Legal Estate] 
 
 trust estate in new trustees, 203 
 
 of accumulations, 152 
 
 restrictions beyond 21 after, void, 84 
 
 e. ff., direction to settle on mar- 
 riage, ib. 
 of portions [see Portions] 
 
 Voluntary Assignment 
 
 of trust property, liability of assignee, under, 295 
 
INDEX. 483 
 
 Voluntary Trustees [see Voluntary Trusts] 
 liability of, for loss, 240 
 creation of, must be irrevocable, ib. 
 
 Voluntary Trusts, 
 
 mode of creating, 27 
 
 imperfectly created not construed as declaration of trust, ib. 
 
 by legal transfer, mode of creating, 28 
 
 of equitable estate, ib. 
 
 of equitable reversion, ib. 
 
 of agreement for a lease, ib. 
 
 of annuity, 32 
 
 notice of, volunteer's title good, without, 28 
 
 communication of, to volunteer, ib. 
 
 acceptance of, by volunteer, ib. 
 
 imperfect voluntary trusts : 29, 30 
 
 indorsement on share certificates without transfer, 29 
 on bond, ib. 
 on lease, ib. 
 informal assignment of shares by deed, ib. 
 by power of attorney, 29, 32, 34 
 by cheque, 29 
 
 retainer by drawer, ib. 
 of title-deeds in box, 30 
 
 retainer of key, ib. 
 by deed poll, ib. 
 of mortgagee's interest, ib. 
 promise to assign, ib. 
 
 voluntary covenant to transfer stock or shares, ib. 
 surrender copyholds, ib. 
 where settlor has done all he can, ib. 
 of policy, ib. 
 
 duty of trustee to give notice to insurance office, ib. 
 volunteers can compel completion of imperfect, by settlor, 31 
 
 by representatives, ib. 
 settlement on, contrary to intention, cancelled, ib. 
 
 reformed, ib. 
 by letter without legal transfer, ib. 
 
 operating as appointment under power, ib. 
 signature of, 32 
 for wife, ib. 
 
 proof of separate use, ib. 
 of promissory note, ib. 
 effect of consent in Court by wife to transfer to husband, ib. 
 by feme sole, ib. 
 meritorious consideration, ib. 
 
 under Acts of Elizabeth, 36 
 ex post facto consideration, ib. 
 
484 INDEX. 
 
 Voluntary Trusts — continued. 
 
 for remainderman good against subsequent settlement on 
 
 second marriage, 33 
 in family arrangements, 33 
 mixing property subject to, ih. 
 parol, of personalty, ib. 
 
 evidence of intention to become trustee, ih. 
 
 by conversations, ib. 
 form of, ib. 
 settlor retaining control of property subject to, 33 — 35 
 communication of, to c. q. t., 34 
 retaining deed, ib. 
 informal will not be construed as declaration of trust, ib. 
 memorandum " to leave," (fee, not construed as, ib. 
 death of settlor before completion of settlement on, ib. 
 collateral security to perform, ib. 
 
 production of settlement by executors^ 35 
 revocation by destroying seals, ib. 
 
 by getting in legal estate, ib. 
 satisfaction of, by will, ib. 
 
 fraudulent, as against creditors under 13 Eliz. c. 5, 35 
 ptirchasers under 27 Eliz. c. 4, ib. 
 extent of valuable consideration, ib. 
 pleading illegality against, 85 
 remedy of c. q. t. under, 36 
 heir or devisee cannot avoid, by sale, ib. 
 settlor on, cannot enforce his contract for sale, ib. 
 settlement on, not made in pursuance of articles is void against 
 purchaser for value, 45 
 
 Volunteer \_see Voluntary Trusts] 
 
 Vote, 
 
 right of e. q. t. to, for Parliament, 222 
 
 not for Coroner, ib. 
 purchase in son's name to secure, 63 
 
 Vouchers, 
 
 allowed by trustees to be taken abroad by agent, 18 
 
 Vouching 
 
 accounts of trustees, directions as to, 229 
 
 Wages, 
 
 separate, under Married Women's Property Act, 250 
 
INDEX. 485 
 
 Waivee, 
 
 of rights, presumption of [see Peeshmption] 
 
 Ward [see Guardian] 
 
 Waste [see Timber ; Mines] 
 
 tenant for life with precatory trust over may commit, 55 
 
 liabihty of vendor for, after contract for sale, 73 
 without impeachment of, executory life estates made, when, 
 
 49 
 bar of claim for, 313 
 of manor, grants of, by trustees, 107, 108 
 
 Wasting Securities [see Getting in Trust Estate], 91 — 97 
 
 West Indies, 
 
 commission to trustees of estates in, 199 
 
 Widow, 
 
 dower of, out of equitable estates, 269 
 
 freebench of, 270 
 
 of intestate without next of kin, takes half, 244 
 
 separate estate liable for debts of, during coverture, 263 
 
 Wife [see Married Woman ; Separate Estate] 
 grant to, presumed advancement, 60, 61 — 66 
 executory trust in articles as to lands of, 45, 48 
 
 [see ExBOUTORY Trusts] 
 may follow trust property into hands of husband, 303 
 
 Wilful Default, 
 
 inquiry as to, one act of, to be pointed out to obtain, 327 
 
 on further directions, not given, ib. 
 
 amendment allowed to show act of, ib. 
 estate of trustee liable for, 329 
 losing trust property by, 98 
 
 trustees allowing vouchers to be taken out of jurisdiction, 18 
 in not selling after reasonable offer, 114 [see Attachment] 
 
 Will, 
 
 vesting legal estate in trustee by, 1 — 8 [see Legal Estate] 
 passing trust or mortgage estates [see Devise of Trust 
 
 Estates] 
 executory trust in [see Executory Trusts] 
 revoking gift by way of advancement, 66 
 informal, not construed declaration of trust, 34 
 of separate estate, 257, 259 [see Separate Estate] 
 Sovereign, right of, to make, 242 
 probate of, of Sovereign, ib. 
 
486 INDEX. 
 
 Wills Act [see Statutes] 
 
 secret trust enforced notwithstanding, 79 
 
 Weit 
 
 of ne exeat regno [see Ne Exeat] 
 appointment of receiver before service of, 272 
 
 Wrong Payment [see Payment] 
 
 THE END. 
 
 BRADBURY, AGNEW, & CO., PRtNTGUa, WHITEFUIABS. ^