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 IN HEnORY OF 
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 FIRST DEAN OF THE SCHOOL 
 
 f By his Wife and Daughter 
 
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Cornell University Library 
 KF 730.H64 1854 
 
 A practical treatise on the law relating 
 
 3 1924 018 825 988 
 
Cornell University 
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PRACTICAL TREATISE 
 
 ON THE LAW 
 
 TEUSTEES 
 
 POWERS, DUTIES, PRIYILEGES, 
 AND LIABILITIES. 
 
 BY JAMES HILL, ESQ., 
 
 OP THE INNER TEMPLE, BABMSTER-AT-LAW, ANB FELLOW OP HEW 50LLEGE, OXFORD. 
 
 SECOND AMERICAN EDITION, 
 
 CONTAINING THE NOTES TO THE POEMER EDITION, 
 
 BY FKANCIS J. TROUBAT, 
 
 WITH FTTLl NOTES AND EEFEKENCEB TO ENQIISH AND AMERICAN DECISIONS, 
 
 BY HENRY WHARTON. 
 
 PHILADELPHIA: 
 T. & J. W. JOHNSON, 
 
 LAW BOOKSELLERS, PUBLISHERS, AND IMPORTERS, 
 
 197 CHESTNUT STKBET. 
 
 1854. 
 
Entered, according to AcJ; of Congress, in the year 1853, 
 
 BT T. AND J. W, JOHNSON, 
 
 In tlie crerk's Office of the District Court for the Eastern District of PennsylTanii 
 
 V. SBEEMAN, PEIXTEB, 
 
TO 
 
 1 
 
 THE HON. SIR WILLIAM ERLE, 
 
 ONS O; THE JTTDQ^a OF EEB UAJESTY's COUBT OF COMMON FLEAS, 
 
 €^t fnllnraing Wuk 
 
 IS 
 
 (by permission) 
 
 MOST EESPECTPULLT DEDICATED 
 
 BY THE AUTHOR. 
 
ADVERTISEMENT 
 
 TO THE SECOND AMERICAN EDITION. 
 
 The present edition of " Hill on Trustees" contains, it is believed, 
 full and accurate references to the American decisions and the more 
 important statutes in the different States, and also to the principal 
 English cases and statutes since the publication of the text, with 
 regard to the subject of the work. Some of the notes upon topics 
 incidentally treated of by the author, are rather more elaborated 
 than would have been necessary if the American authorities thereon 
 were fully collected elsewhere. The editor has to acknowledge the 
 valuable aid which he has derived, on various points, from the notes 
 of Judge Hare and the late Mr. Wallace to the " Leading Cases in 
 Equity." 
 
 The notes and additions of the editor are distinguished, in general, 
 from those of the author, by a division line at the foot of the original 
 page. Some, however, to economize space, have been inserted in 
 the author's notes ; and these are enclosed within brackets. To the 
 notes of Mr. Troubat the initial letter " T." has been subjoined. 
 The paging of the First American Edition has been retained in the 
 margin, as it is that which has been in use in the United States, and 
 as the English paging had, unfortunately, not been preserved therein. 
 
 The references throughout the book, with the single exception of 
 the Table of American Cases, are to the marginal or star paging. 
 
 Hbnet Wharton. 
 
 Philadelphia, December, 1853. 
 
PREFACE, 
 
 The existence and established character of Mr. Lewin's very 
 valuable " Treatise on the Law of Trusts and Trustees," may seem 
 to call for some apology for the appearance of the present work. 
 It might, perhaps, be sufficient for the writer to state that his own 
 work had been commenced previously to the appearance of that of 
 Mr. Lewin ; but, in truth, it will be seen on examination that the 
 object, as well as the arrangement, of the two treatises is very dis- 
 similar in many material respects. The present work, as appears 
 from its title, is written principally for the information and guidance 
 of Trustees in the discharge of their office, and the Law of Trusts 
 has not been gone into further than appeared absolutely essential for 
 the development of that object. However, even with this limited 
 purpose in view, a Treatise on the Law relating to Trustees involved, 
 in a greater or less degree, the consideration of the whole Law of 
 Keal and Personal Property ; and the difficulty of effecting a clear 
 and continuous arrangement, which should embrace all the branches 
 of the subject, is proportionably great. The defects on this point, 
 as well as many of those attending the execution of the work, are 
 sufficiently apparent even to the writer himself; but he feels that 
 those who will discover the imperfections must also be sensible of the 
 difficulty of avoiding 'them, and will, therefore, be disposed to make 
 the requisite allowances, and with this conviction he has greater 
 confidence in bringing his work before the public. 
 
 6 New Square, Lincoln's Inn, 
 26th May, 1845. 
 
CONTENTS. 
 
 Tn. b. the eefebenoes aeb to the star paging.] 
 
 INTKODUCTION, 41 
 
 PRELIMINARY CHAPTER, .... 44 
 
 I. What may be the Subject-Matter of a Trust, . . 44 
 
 II. Who may create a Trustee, .... 45 
 
 III. Who may be a Trustee, . . . . .48 
 
 IV. Who may be Cestui que Trust, . . . 51 
 
 PAET I. 
 
 OF THE CONSTITUTION OF TRUSTEES. 
 DIVISION I. 
 
 OP THE CEEATION OF TRUSTEES BY EXPRESS DECLARATION. 
 CHAPTER I. 
 
 OF THE CREATION OP TRUSTEES BY PAROL. 
 
 1. What may be the Subject of a Parol Trust, . . .55 
 
 2. What will be a valid Trust by Parol, ... 59 
 
 CHAPTER 11. 
 
 OF THE CREATION" OF TRiUSTEES BY INSTRUMENT IN WRITING. 
 
 1. Of the Instrument by which a Trustee may be created, . . 63 
 
 2. What direct Fiduciary expressions will create a Trust, . 65 
 
 3. Where a Power will create a Trust, . . . .67 
 
 4. Where words of Recommendation, &c., will create a Trust, . 71 
 5 Of the effect of a Voluntary Disposition in Trust, . . 82 
 
CONTENTS. 
 
 DIVISION II. 
 
 OF THE CONSTITUTION OP TRUSTEES BY IMPLICATION OR 
 CONSTRUCTION OF LAW. 
 
 CHAPTER I. 
 
 OF TRUSTEES BY VIETDE OF A RESULTING OR PRESUMPTIVE TRUST. 
 
 1. Where a Purchase is made by one Person in the name of Another, 91 
 
 2. Where there is a Voluntary Conveyance without any Declaration of 
 
 Trust, . . . . . . .106 
 
 3. Where the Trusts are not Declared, or are only partially Declared, 
 
 or fail, . . . . . . .113 
 
 I. Where the Gift is upon Trusts which are not Declared, 114 
 
 II. Where the Trusts are ineffectually Declared, . . 116 
 
 III. Where the Trusts Declared do not exhaust the whole In- 
 
 terest, . . ' . . . . . 118 
 
 Exception in case of Trusts for Charity, . 128 
 
 IV. Where the Trusts Declared are void, or lapse, . . 134 
 
 CHAPTER II. 
 
 OP TRUSTEES BY VIRTUE OF A CONSTRUCTIVE TRUST. 
 
 1. Where the Acquisition of the Legal Estate is aifected with Fraud, 144 
 
 I. Fraud arising from Facts of Imposition, . . . 145 
 
 II. Fraud apparent from the Value and Subject of the Bargain, 
 
 itself, . . . . . . .152 
 
 III. Fraud arising from the Circumstances and Condition of the 
 
 Contracting Parties, ..... 154 
 
 IV. Fraud as affecting third Persons, not Parties to the Trans- 
 
 action, ....... 168 
 
 Proof of the Fraud, .... 166 
 
 EflFeet of Delay and Acquiescence, . . .168 
 
 2. By Equitable Construction in the Absence of Fraud, . 170 
 
 DIVISION III. 
 
 OF THE CONSTITUTION OF TRUSTEES BY WAY OF SUBSTITUTION IN 
 THE PLACE OF THOSE ALREADY CREATED. 
 
 CHAPTER I. 
 
 OP THE SUBSTITUTIONARY CREATION OP TRUSTEES UNDER A POWER, 175 
 
CONTENTS. xi 
 
 CHAPTER II. 
 
 OP THE SUBSTITUTION OP TRUSTEES BY THE OOUET OF CHANCERY. 
 
 I. In what Cases the Court will act, .... 190 
 
 II. How the Court acts in appointing new Trustees, . 194 
 
 1st. Op a Bill filed, . . . .194 
 
 2d. On Petition— when ? . . .197 
 
 III. Whom the Court will appoint to be new Trustee, and the 
 
 effect of the Appointment, .... 210 
 
 DIVISION IV. 
 
 OF THE ACCEPTANCE OR REFUSAL OP THE OFFICE OF TRUSTEE. 
 CHAPTER "I. 
 
 WHAT WILL BE AN ACCEPTANCE OF THE OFFICE OP TRUSTEE, 214 
 
 CHAPTER II. 
 
 OF THE REFUSAL OR DISCLAIMER OF THE OFFICE OF TRUSTEE. 
 
 I. When a Trustee may Disclaim, .... 221 
 
 II. How he may Disclaim, .... 223 
 
 III. The Effect of a Disclaimer, . . . .225 
 
 PART II. 
 
 OF THE ESTATE OF TRUSTEES. 
 CHAPTER I. 
 
 OF THE NATURE OR QUALITY OF THE ESTATE OP TRUSTEES, AND 
 THEREIN WHERE THEY TAKE THE LEGAL ESTATE. 
 
 I. Where the Trust Property consists of Real Estate, . 229 
 
 II. Where of Personal Estate, .... 236 
 
 CHAPTER II. 
 
 OP THE EXTENT AND DURATION OF THE ESTATE OP TRUSTEES. 
 
 I. Where their Estate is created by Will, . . • 239 
 
 II. Where their Estate is created by Deed, . . 248 
 
Xll CONTENTS. 
 
 III. Of the Merger of their Estate,, . . . .252 
 
 IV. Of the Presumption of a Reconveyance or Surrender, . 253 
 V. Of the Application of the Statutes of Limitation to the 
 
 Estate of Trustees, ..... 263 
 
 270 
 
 CHAPTER III. 
 
 OF THE INCIDENTS TO, AND LEGAL PKOPEBTIES OF, THE ESTATE 
 OF TRtrSTEES, .....•• 
 
 CHAPTER IV. 
 
 OF THE DISPOSITION OF THEIE ESTATE BY TRUSTEES. 
 
 I. Where the Disposition is by Deed or Act inter vivos, . 278 
 
 II. Where by Will, ..... 283 
 
 III. Where by Trustees under Disability, . . . 287 
 
 CHAPTER V. 
 
 OF THE LEGAL DEVOLUTION OF THE ESTATE OF TRUSTEES, 303 
 
 PAET III. 
 
 OF THE DISCHARGE OF THE OFFICE OF TRUSTEE. 
 DIVISION I. 
 
 OF THE POWERS AND DUTIES OF TRUSTEES. 
 CHAPTER I. 
 
 OF THE POWERS AND DUTIES OF CO-TRUSTEES AS BETWEEN 
 EACH OTHER. 
 
 I. Where the Concurrence of all the Co-Trustees is requisite, 805 
 
 II. Of the liability of a Trustee for the acts of his Co-Trustees, 309 
 
 CHAPTER II. 
 
 OF THE POWERS AND DUTIES OF TRUSTEES, AS BETWEEN THEM 
 AND THE CESTUI QUE TRUSTS. 
 
 1. Of Trustees of a Dormant Estate, • • . . 316 
 
 I. Of Trustees of a Dry Legal Estate, . . . 316 
 
 II. Of Trustees to preserve Contingent Remainders, . . 317 
 
 III. Of Trustees of Attendant Terms of Years, . . 324 
 
CONTENTS. 
 
 XHl 
 
 Of Trustees of an Estate clothed with Active Duties, . . 328 
 
 I. Of Trustees of Executory Trusts, ... . 328 
 
 II. Of Trustees for the Payment of Debts, ' . . .336 
 1st. Under a Deed, ..... 336 
 2d. Under a Will, . . • - .344 
 
 III. Of Trustees fdr the Payment of Legacies, . . 359 
 
 IV. Of Trustees for Raising Portions, .... 364 
 V. Of Investment by Trustees, .... 368 
 
 VI. Of Trustees for Tenants for Life, . . . .384 
 
 VIL Of Trustees for Infants, . . . . 395 
 
 Vin. Of Trustees for Married "Women,. . . * . . 405 
 
 IX. Of Trustees of Freeholds, .... 428 
 
 X. Of Trustees of Copyholds, . . . .429 
 
 XI. Of Trustees of Leaseholds, .... 432 
 
 XII. Of Trustees of Advowsons^ . . . .439 
 
 XIII. Of Trustees of Stock or Shares, . . .445 
 
 XIV. Of Trustees of Choses in Action, . . . .446 
 XV. Of Trustees for Charitable or Public Purposes, . 449 
 
 Of Trustees of Powers, ...... 471 
 
 I. Of Powers of Sale, ..... 471 
 
 II. Of Powers of Leasing, . . . . .480 
 
 III. Of Powers of changing Securities, . . . 482 
 
 IV. Of Discretionary Powers, .... 485 
 1st. Of Powers of making a Grift out of Trust Property, 489 
 2d. Of Powers of Selection and Distribution, . . 492 
 3d. Of Powers of Management, . . . 494 
 4th. Of Powers applying to matters of Personal Judgment, 495 
 
 CHAPTER III, 
 
 OF THE I-OWERS AND DUTIES OE TRUSTEES, AS BETWEEN THEM AND 
 
 THIRD PERSONS, ...... 503 
 
 DIVISION II. 
 
 OP THE LIABILITIES AND PRIVILEGES OP TRUSTEES. 
 CHAPTER I. 
 
 OF A BREACH OP TRUST, AND ITS CONSEQUENCES. 
 
 I. Of Remedies for a Breach of Trust, . 
 II. Of the Discharge of a Breach of Trust, 
 
 CHAPTER II. 
 
 OF THE BANKRUPTCY AND INSOLVENCY OF TRUSTEES, 
 
 518 
 
 . 525 
 
 530 
 
535 
 
 XIV CONTENTS. 
 
 CHAPTER in. 
 
 OP THE DISABILITIES OP TRUSTEES, 
 
 CHAPTER IV. 
 
 OP SUITS BY AND AGAINST TRUSTEES. 
 
 1. Of Suits and Actions by Trustees, . . . ■ . 543 
 
 2. Of Suits and Actions against Trustees, . . . , • 545 
 
 3. Of the Effects of Suits instituted by or against Trustees, . 548 
 
 4. Of Costs, 551 
 
 CHAPTER V. 
 
 OP ALLOWANCES TO TRUSTEES, .... 570 
 
 CHAPTER VI. 
 
 OP THE DISCHARGE AND RELEASE OP TRUSTEES, . . 579 
 
TABLE OF CASES IN AMEEICAN NOTES. 
 
 THE BEEERENCES ARE TO THE PAGINO OF THIS EDITION. 
 
 A. 
 
 
 
 
 Arms V. 
 
 Ashley, 
 
 PAGE 
 . 78 
 
 
 
 
 PASE 
 
 Armstrong's Est., 
 
 . 807 
 
 Abbott V. Clark, 
 
 
 
 . 790 
 
 
 V. Campbell, . 
 
 220, 756 
 
 Abeel v. Radcliffe, 
 
 
 
 . 78 
 
 
 Miller, 
 
 . 532 
 
 Abney v. Kingsland, . 
 
 
 
 . 141 
 
 
 Park, . 
 
 688, 713 
 
 Acker v. Phoenix, 
 
 
 
 . 113 
 
 Arnold v 
 
 Gilbert, 
 
 54, 716 
 
 Ackerman v. Emott, . 
 
 52 
 
 0,52 
 
 1, 533, .'539 
 
 
 Ruggles, . 
 
 . 600 
 
 Adams v. Brackett, 
 
 
 
 . 487, 508 
 
 Arnoux v 
 
 . Sieinbrenner, . 
 
 . 806 
 
 Broughton, . 
 
 
 
 . 123 
 
 Arthur v 
 
 Master in Eq. 
 
 . 532 
 
 Addison V. Bowie, 
 
 
 
 . 102 
 
 
 Comm. Bank, . 
 
 . 57 
 
 Adey v. Arnold, . 
 
 
 
 . 759 
 
 Asay V. Hoover, ... 
 
 400, 695 
 
 Adium V. Yard, . 
 
 
 
 475, 49! 
 
 Ashby V. 
 
 Ashby, 
 
 . 599 
 
 Affleck V. James, 
 
 
 
 . 688 
 
 Ashcraft 
 
 V. Little, . 609, 610, 
 
 611, 612 
 
 Agnew V. Fetlerman, . 
 
 
 . 47 
 
 9, 485. 489 
 
 Ashley v 
 
 Denton, 
 
 . 758 
 
 Ahearne v. Hogan, 
 
 
 
 . 217, 220 
 
 Ashhurst 
 
 V. Given, . . 65 
 
 327, 568 
 
 Albany Fire Ins. Co. v. 
 
 Ba 
 
 y, 40 
 
 7,499,613, 
 
 Ashurst V. Ashurst, . ... 
 
 . 703 
 
 
 
 
 615 
 
 Ashton V 
 
 . Lord Langdale, . 73 
 
 659, 664 
 
 Albert v. Savings Bank, 
 
 
 
 . 248 
 
 Aston's Estate 
 
 532, 536 
 
 Aldrick v. Cooper, 
 
 4 
 
 n,49 
 
 3,505, 514 
 
 Astor V. 
 
 Wells 
 
 232, 748 
 
 Alexander v. Alexander 
 
 t 
 
 
 . 569 
 
 Astreen \ 
 
 . Flanagan, . 
 
 136, 137 
 
 Cana, . 
 
 
 
 . 796 
 
 Atcheson v. Atcheson, 
 
 . 602 
 
 McMurraj 
 
 J 
 
 
 479, 485 
 
 
 Lindsay, . 
 
 . 54 
 
 Pendleton 
 
 
 
 . 231 
 
 Atkins V. 
 
 Kron, .... 
 
 . 67 
 
 Aleyn v. Belchier, 
 
 
 
 716, 723 
 
 Atkinson 
 
 V. Jordan, . 
 
 469, 473 
 
 Allen, Ex parte, . 
 
 
 
 . 574 
 
 Att.-Gen 
 
 V. Andrews, 
 
 671, 810 
 
 V. Allen, . 
 
 
 
 . 588 
 
 
 Baliol Coll. . 
 
 . 656 
 
 Bryant, 
 
 
 
 . 785 
 
 
 Bovill, . 
 
 669, 679 
 
 De Witt, . 
 
 
 
 . 685 
 
 
 Bowyer, 
 
 . 668 
 
 Knight, 
 
 
 
 . 750 
 
 
 Bristol, . 
 
 . 669 
 
 Randolph, . 
 
 
 
 . 654 
 
 
 Brown's Hospital, . 
 
 . 670 
 
 Allis V. Billings, 
 
 
 
 ' . 56 
 
 
 Devon, (Earl of) . 
 
 . 669 
 
 Allison V. Allison, 
 
 
 
 . 209 
 
 
 Donnington, . 
 
 . 674 
 
 Cookson, . 
 
 
 
 . 797 
 
 
 East Retford Gram. 
 
 School, 
 
 Allsup V. Allsup, 
 
 
 
 . 54 
 
 
 
 669 
 
 Alston V. Boyd, . 
 
 
 
 . 56 
 
 
 Gaines, . 
 
 . 674 
 
 Altimus V. Elliott, 
 
 
 
 . 832 
 
 
 Gardner, 
 
 . 664 
 
 Ames V. Downing, 
 
 22 
 
 2,62 
 
 6, 767, 832 
 
 
 Gibbs, . 
 
 . 818 
 
 Ancaster v. Mayer, 
 
 49 
 
 3,49 
 
 7, 503, 505 
 
 
 Hardy, . 
 
 . 789 
 
 Anderson v. Anderson, 
 
 
 
 . 621 
 
 
 Henchman, . 
 
 173, 196 
 
 Burrell, . 
 
 
 
 237, 240 
 
 
 Hill, 
 
 . 664 
 
 Neff, 
 
 
 
 . 790 
 
 
 Hutton, . • . 
 
 . 680 
 
 AndresSv. Miller, 
 
 
 
 . 474 
 
 
 Ironmongers' Co. . 
 
 . 669 
 
 Andrew v. N. Y. Bible Soc 
 
 •J 
 
 4, 60, 107, 
 
 
 Jolly, . 
 
 . 107 
 
 
 
 
 179, 663 
 
 
 Lawes, . 106, 656, 
 
 659, 680 
 
 Andrews v. Jones, 
 
 
 7S 
 
 !, 599, 606 
 
 
 Ludlow, 
 
 . 669 
 
 Sparhawk, 
 Angerstein v. Martin, 
 
 
 
 . 512 
 
 
 Norwich (Corp. of). 
 
 . 669 
 
 
 
 . 556 
 
 
 Norwich (Mayor of; 
 
 , . 810 
 
 Anslice v. Brown, 
 
 
 6 
 
 7, 124, 372 
 
 
 Magdalen College, 
 
 . 670 
 
 App V. Lutheran Congregat 
 
 ion, 
 
 . 680 
 
 
 Mansfield, (Earl) 
 
 . 673 
 
 Appleton V. Boyd, 
 
 
 
 . 129 
 
 
 Merchants' Venturers' Co. 
 
 Archbold v. Comm. Charita 
 
 b. d'c 
 
 )nat's. 684 
 
 
 
 672 
 
 Archer v. Hudson, 
 
 
 
 . 218 
 
 
 Moseley, 
 
 678, 716 
 
XVI 
 
 TABLE OF CASES IN AMERICAN NOTES. 
 
 PAGE 
 
 Att.-Gen. v. Munro, . . . 664, 680 
 Murdock, . . .680 
 Pilgrim,. . . .674 
 Plymouth, . . .659 
 Rochester (Dean, &c., of) 
 670 
 Shore, . . . 679,680 
 Stanjford (Earl of), . 669 
 
 Vint 656 
 
 Wallace, 107,183,656,667, 
 
 674, 678, 682 
 
 Ward, . . 664, 667, 669 
 
 Wilkins 757 
 
 Wilson, . . . 679, 761 
 Worcester (Bishop of) . 669 
 
 Austen v. Bell 473 
 
 Aycinena v. Peries, .... 759 
 
 Ayres v. Methodist Ch., 60, 179, 183, 663 
 
 Mitchell, . . . .206 
 
 Weed, 317 
 
 Babb V. Reid, . 
 
 
 660, 
 
 661 
 
 Babcock V. Smith, 
 
 
 , 
 
 73 
 
 Baggett V. Meux, 
 
 
 
 615 
 
 Bagshaw v. Winter, . 
 
 
 594 
 
 606 
 
 Bailey v. Inglee, 
 
 
 762 
 
 765 
 
 Richardson, . 
 
 
 
 750 
 
 Robinson, . 
 
 
 , 
 
 222 
 
 Stiles, . 
 
 
 
 209 
 
 Watkins, 
 
 
 
 224 
 
 Wilson, 
 
 
 , 
 
 230 
 
 Baines v. McGee, 
 
 
 , 
 
 222 
 
 Baird's App., 
 
 
 , 
 
 426 
 
 Baker v. Biddle, . 
 
 
 
 758 
 
 Crookshank, 
 
 
 , 
 
 480 
 
 Mosley, 
 
 
 
 92 
 
 Smith, . 
 
 
 . 
 
 656 
 
 Vining, . 125, IS 
 
 7,13 
 
 2, 134 
 
 136 
 
 Washington, 
 
 
 
 387 
 
 Baldwin v. Carter, 
 
 
 , 
 
 605 
 
 Johnson, . 
 
 
 , 
 
 126 
 
 Baldy v. Brady, . 
 
 
 479, 
 
 485 
 
 Ball V. Carew, 
 
 
 
 783 
 
 Ballard v. Carter, 
 
 
 
 400 
 
 Taylor, 
 
 
 
 609 
 
 Ballou V. Clark, 
 
 
 
 56 
 
 Bangley's Trust, Re, . 
 
 
 794 
 
 830 
 
 B^nk V. Campbell, 
 
 
 
 380 
 
 Foster, . 
 
 
 
 225 
 
 Phelan, . 
 
 
 , 
 
 107 
 
 Bank of N. A. v. Pollock, 
 
 
 127, 
 
 797 
 
 Orleans v. Torrey, 
 
 
 
 223 
 
 U. S. V. Biddle, 
 
 
 238, 
 
 240 
 
 Coram. 
 
 
 
 471 
 
 Beverley, 
 
 
 479, 
 
 487 
 
 Carrington, 
 
 
 71, 
 
 125 
 
 Virginia v. Adams 
 
 . 
 
 
 53 
 
 , Craig, 
 
 24 
 
 8, 526 
 
 569 
 
 Banks v. Judah, . 
 
 
 
 223 
 
 May, . 
 
 
 
 113 
 
 Wilkes, 
 
 
 
 433 
 
 Bannister v. McKenzie, 
 
 
 
 523 
 
 Baptist Association v. Hart 
 
 s Ex'rs, 
 
 107, 
 
 
 183 
 
 ,668 
 
 Barbour v. Morris, 
 
 
 206 
 
 . Whitelock, 
 
 
 240 
 
 Barclay v. Tallman, . 
 
 
 53 
 
 Bardwellv.Bardwell, . 
 
 
 514 
 
 Barker V. Greenwood, . 
 
 '. 329,330, 
 
 331 
 
 Hall, . . 
 
 
 469, 
 
 470 
 
 Barker v. Parkenham, 
 
 Woods, 
 Barnes v. McClinton, 
 
 McGee, 
 
 Pearson, 
 Barnett v. Pratt, . 
 
 .Sheffield, 
 Barnum v. Hempstead 
 Barrett v. Buck, . 
 
 Oliver, 
 
 Reads, 
 Barrington (Lord) v. Sidell 
 Barry, Re, . 
 
 V. Marriott, 
 
 Merchants' Exchange 
 Whitney, 
 Barrymore v. Ellis, 
 Bartholomew's Will, Re, 
 Bartlett v. Bartlett, 
 
 Sutherland, 
 Barton's Est., 
 Barwell v. Anderson, 
 Bass V. Scotl, 
 Bassett v. Nosworthy, 
 
 Lister, . 
 Bateman v. Hotchkin, 
 
 Margerison, 
 Bates V. Norcross. 
 Battle V. Durham 
 Petway, 
 Bayles v. Staats, 
 Beach v. Beach, . 
 Dorwin, 
 Fulton Bank; 
 Beale v. Coon, 
 Beall v. Fox, 
 Beals V. See, 
 Bean v. Herrick, . 
 Beard v. Campbell, 
 Beasley V. Wilkinson, 
 Beattie v. Johnson, 
 Beatty v. Kurtz, . 
 Beaubien v. Poupard, 
 Beauchamp v. Davis, 
 Beaufort v. Collier, 
 Beaver v. Filson, 
 Beck v. Uhrick, . 
 Beebe v. De Baun, 
 Beeson v. Beeson, 
 Belcher V. Belcher, 
 Bell V. Bell, 
 
 Hallenbach, 
 Henderson, 
 Webb, . 
 Bellamy v. Sabine, 
 Bellas v. Lloyd, . 
 
 McCarthy, 
 Bellinger v. Shafer, 
 Benbury v. Benbury, 
 Bender v. Reynolds, 
 Bennett v. Biddies, 
 
 Dillingham, 
 Bensell v. Chancellor, 
 Benson v. Benson, 
 
 Davies, 
 
 Le Roy, 
 Bensusan v. Nehemias, 
 Bent y. Young, . 
 Benzein v. Lenoir, 
 Bernard v. Bougard, . 
 Beresford, Matter of, . 
 Bergen v. Duff, . 
 Berkhardt v. Flyne, '. 
 
 Co., 
 
 PAGE 
 
 829 
 606 
 749 
 233 
 599 
 210 
 522 
 484 
 565 
 593 
 470 
 519 
 409 
 522 
 57 
 224 
 615 
 794 
 803 
 
 520, 542, 545 
 
 . 533 
 
 324, 330 
 
 231, 380 
 
 . 563 
 
 . 563 
 
 . 762 
 
 . 245 
 
 . 238 
 
 394, 395 
 
 . 274 
 
 386, 387 
 
 . 759 
 
 . 477 
 
 . 388 
 
 . 107 
 
 . 56 
 
 . 203 
 
 . 205 
 
 . 401 
 
 . 763 
 
 . 654 
 
 . 222 
 
 . 806 
 
 608, 609 
 
 . 379 
 
 126, 788, 789 
 
 702, 703, 704 
 
 222, 770, 773, 784 
 
 215 
 
 600, 606 
 
 . 141 
 
 . 202 
 
 223, 240 
 
 . 201 
 
 . 745 
 
 231 
 
 569, 829 
 
 759, 760 
 
 610 
 
 808 
 
 600 
 
 56 
 
 609 
 
 811 
 
 504 
 
 771 
 
 52 
 
 230 
 
 127, 134 
 
 589, 590 
 
 . 691 
 
 . 50 
 
TABLE OF CASES IN AMERICAN NOTES. 
 
 XVU 
 
 Berrien v. McLane, 
 Berry v. Hamilton, 
 
 Ins. Co., 
 Williamson, 
 Best V. Blackburne, 
 
 Stow, 
 Bethea v. McCoU, 
 Bettle V. Wilson, 
 Beverley v. Brooke, 
 Beverly v. Miller, 
 Bibb V. McKinley, 
 Biggs, Re, . 
 Biggert v. Biggert, 
 Bilkes Charity, Re, 
 Billing V. Southee, 
 Billington's A pp., 
 Bingaman v. Hyatt, 
 Binney v. Plumly, 
 Binns v. Parr, 
 Birch v. Cropper, 
 Bird v. Graham, . 
 
 Pegrum, . 
 
 Birdsale v. Hewitt, 
 
 Bishop V. Capel, . 
 
 Curtis, 
 
 Black V. Black, . 
 
 Irwin, . 
 
 Ligon, . 
 
 Ray, 
 Blackman v. Gordon, 
 Blagrave v. Blagrave, 
 Blair V. Bass, 
 
 Bromley, 
 
 Owles, . 
 Blaisdell v. Stevens, 
 Blake v. Heyward, 
 Blakely v. Brady, 
 Blanchard v. Blood, 
 Moore, 
 Blann v. Bell, . 
 Blin v. Pierce, 
 Blight V. Schenck, 
 Bloomer v. Waldron, 
 Bloomfield v. Eyre, 
 Blount V. Blount, 
 Bloye's Trust, Re, 
 Blue V. Patterson, 
 Boddy V. Lefevre, 
 Bodine v. Edwards, 
 Bogart v. Hertall, 
 Bogert V. Perry, 
 Boggs V. Varner, 231, 
 Bohannon v. Streslhley, 
 Bohn V. Headley, 
 Boling V. Ewing, 
 Boiling V. Carter, 
 Bond V. Brown, . 
 
 Zeigler, 
 Bonnell v. Read, . 
 Bonsall's App., . 
 Boone v. Chillas, 
 Booth V. Booth, . 
 
 Sineath, 
 Borden v. Sumner, 
 Boreham v. Bignall, 
 Borton v. Borton, 
 Boschetti v. Power, 
 Bostwick, Matter of, 
 
 V. Atkins, 
 Bostick V. Keizer, 
 Botsford V. Burr, 425, 
 Boughton V. Boughton, 
 
 PAGE 
 
 . 224 
 
 716, 722 
 
 . 750 
 
 . 459 
 
 . 202 
 
 . 203 
 
 578, 579, 789 
 
 621, 622 
 
 . 770 
 
 . 532 
 
 . 598 
 
 . 794 
 
 . 605 
 
 . 278 
 
 . 220 
 
 524, 538, 568 
 
 . 749 
 
 . 387 
 
 . 804 
 
 . 257 
 
 . 373 
 
 . 620 
 
 . 515 
 
 . 101 
 
 . 67 
 
 . 360 
 
 • 691 
 
 674, 675, 707 
 
 . 559 
 
 . 175 
 
 339, 343, 344 
 
 132, 133 
 
 . 201 
 
 231, 232 
 
 749, 765 
 
 746, 747, 757 
 
 . 120 
 
 . 586 
 
 . 235 
 
 558, 562 
 
 64, 388, 776, 777 
 
 484, 692 
 
 . 499 
 
 . 247 
 
 . 53 
 
 . 794 
 
 207, 373, 759 
 
 . 247 
 
 . 136 
 
 175, 690 
 
 . 134 
 
 232, 744, 749, 752 
 
 . 372 
 
 123, 598 
 
 . 749 
 
 . 746 
 
 237, 240 
 
 . 233 
 
 . 753 
 
 , 538, 568, 765 
 
 231, 372, 757 
 
 . 235 
 
 . 578 
 
 . 470 
 
 . 798 
 
 . 599 
 
 803, 804 
 
 574, 577, 579 
 
 219, 222, 784 
 
 . 380 
 
 127, 131, 132, 134 
 
 . 563, 565 
 
 B 
 
 528: 
 
 PAGE 
 
 Bourne v. Buckton, .... 563 
 Bowen v. Evans, . . . 238, 240 
 
 Bower v. Seeger, .... 429 
 
 Bowers v. Smith 7ffi , 
 
 Bowles V. Weeks 302' 
 
 Bowling V. Winslow's Adra'r, . . 593 
 Bowman v. Bute, .... 203 
 Bowman's App., .... 569 
 
 Boyce v. Grundy 200 
 
 Boyd v. Boyd, .... 433, 444 
 Hawkins, . . . 220, 785 
 McLean, . . . 125, 132 
 
 Moyle, 798 
 
 Boykin v. Ciples, . . 59, 243, 586 
 Boynton v. Reese, .... 231 
 Bracken v. Miller, . . 231, 232, 752 
 Brackenbridge v. Holland, . . . ' 220 
 Bradford V. Greenway, . . 613,618 
 Weeks, . . . .744 
 
 Bradish v. Gibbs 59 
 
 Bradley v. Chase, . . . 204, 236 
 Emerson, . . . .618 
 
 Hughes 609 
 
 BradshaV, Ex parte, .... 794 
 
 Ellis 334, 685 
 
 Bradwell v. Weeks, .... 67 
 
 Brady v. McCosker 207 
 
 Braman v. Stiles, . . , 568, 686 
 Brandon v. Woodthorpe, . . . 597 
 Brandt's Appeal, .... 508 
 
 Brashear v. West, . . 469, 470, 652 
 Breckenridge v. Ormsby, ... 56 
 
 Bredin v. Dwen 838 
 
 Breedlove v. Stump, .... 65 
 Brewer v. Vanarsdale, . . . 772 
 Brewster v. Striker, . . 327, 329, 344 
 Brice v. Brice, .... 214, 217 
 Bridgeworth (Corp. of) v. Collins, . 563 
 
 Bridges v. Bridges 120 
 
 Hartley, . . . .660 
 
 Pleasants 183 
 
 Wood 610 
 
 Briers v. Hackney, .... 771 
 Briggs v. Penny, . . 78, 81, 92, 101 
 Brighlman v. Brightman, . . . 746 
 Brinckerhoffv. Wemple, . . . 367 
 Bringhurst v. Cuthbert, . . . 335 
 
 Brinton's Est., 819 
 
 Brock V. Phillipps, .... 234 
 
 Brogden v. Walker, . . . 206, 213 
 
 Brooke V. Berry, . . 201,211,214 
 
 Dent, .... 73, 126 
 
 Brooks V. Fowles 127 
 
 Marbury, . .112, 470, 472 
 Broneman v. Sedlinger, ... 76 
 Brothers v. Porter, . . . 129, 765 
 
 Brough V. Higgins 565 
 
 Brown's App., .... 269, 270 
 
 Case, 570 
 
 Brown v. Armistead, . . . 204, 689 
 
 Bamford, 615 
 
 Bartee 357 
 
 Bobson, . . . .688 
 
 Brown 620 
 
 Budd 748 
 
 Cavendish, .... 112 
 
 Durnham 198 
 
 Hobson 689 
 
 Kelsey 107 
 
 Knox 469 
 
 Martin 793 
 
 Mole, 803 
 
XVUl 
 
 TABLE OF CASES IN AMERICAN NOTES. 
 
 Brown v. Paul, . 
 Brown v. Ricketts, 
 Brown V. Wallace, 
 
 Whiteway, . 
 Witter, 
 Browne v. Stoughton, 
 Browning v. Headley, . . 593, 
 Bruce v. Child, . 
 Bruch V. Lantz, . . 220, 223, 
 Bruen v. Hone, . 
 Bruin v. Knott, . 
 Brumby v. Langdon, . 
 Brunson v. Hunter's Adm' 
 Brush V. Ware, . 
 Bryan v. Bradley, 
 Bryan, . 
 Bryant v. Craig, . 
 
 Russell, . 65, 473, 
 Bryson v. Nichols, 
 Buchanan v. Mallock, 
 Buck V. HoUoway, 
 
 Lord St. Vincent, 
 Pike, . 
 Buckler V. Lafferty, . 222, 223, 
 Buffalow V. Buffalow, . . 214, 
 Bufordv. McKee, 
 Bugbee v. Sargent, . 
 Bull V. Bull, . 88, 91, 485, 660, 
 Bulkley v. Bulkley, . 
 De Peyster, 
 Bunbury V. Bunbury, . 
 Bunco V. Vandergrift, 
 Bunner v. Storm, . . 319, 
 Bunn V. Winthrop, 
 Burbank v. Whitney, . 
 Burrell v. Leslie, 
 Burrill V. Sheill, . 
 Burke, Matter of, 
 Burley v. Evelyn, 
 Russell, 
 Burr V. McEwen, 626, 627, 703 
 Sim, . 175, 196, 329, 334 
 Smith, . . . 107, 
 Burrows v. Ragland, . 
 Jennings, . 
 Burt's Est., Re, . 
 Burt V. Cassety, . 
 Burton V. Mount, . . 558, 
 
 Smith, . 
 Bush V. Bush, . . 231, 379, 
 
 Golden, . 
 Bute (Marquis of) v. Harnum 
 Butler V. Haskill, 
 Hicks, . 
 Stevens, 
 Butterfield, Ex parte, . 
 Butterwick Free School, R 
 Butts V. Genung, 
 Bybee v. Thorp, 
 Byrne v. Norcott, 
 
 Stewart, . 
 Van Hoes'en, 
 
 PAGE 
 
 84, 578 
 
 532, 796 
 
 . 704 
 
 339, 343 
 
 . 206 
 
 . 563 
 
 598, 601 
 
 240, 241 
 
 481, 770 
 
 . 206 
 
 . 579 
 
 . 392 
 
 . 93 
 
 . 234 
 
 . 324 
 
 . 588 
 
 . 533 
 
 478, 837 
 
 . 187 
 
 . 209 
 
 750, 749 
 
 . 519 
 
 125, 132 
 
 78'4, 788 
 
 217, 225 
 
 . 114 
 
 . 513 
 
 721, 722 
 
 . 238 
 
 . 270 
 
 . 52 
 
 . 427 
 
 699, 716 
 
 111, 113 
 
 . 661 
 
 . 473 
 
 523, 544 
 
 . 579 
 
 . 175 
 
 . 198 
 
 826, 832 
 
 688, 695 
 
 183, 656 
 
 . 207 
 
 . 475 
 
 . 401 
 
 . 748 
 
 560, 561 
 
 . 702 
 
 762, 765 
 
 . 748 
 
 . 563 
 
 210, 240 
 
 . 789 
 
 744, 748 
 
 . 781 
 
 . 669 
 
 . 829 
 
 . 573 
 
 . 817 
 
 . 605 
 
 . 569 
 
 Cadbury v. Duval, 
 Cafe V. Bent, 
 Cahite v. Bigger, 
 Caines v. Grant's Lessee, 
 Cairns v. Chabert, 
 Caldwell v. Carrington, 
 
 380, 481, 485, 513 
 
 . 557 
 
 . 680 
 
 . 129 
 
 566, 837 
 
 230, 753 
 
 Caldwell V. Taggart, , 
 
 Williams, . 113, 
 Callaghan v. Hall, . . 
 Callender v. Cplegrpve, 
 Calhoun v. Calhoun, 
 
 King, 
 
 Callis v. Ridout, 
 
 Calloway v. Witherspoon, 
 
 Callura V. Upton, 
 
 Calmer, Ex parte, 
 
 Calvert's Lessee v. Eden, 
 
 Campbell v. Drake, . 
 
 Hamilton, 
 
 Johnston, . 220, 
 
 Penn. Ins. Co, 
 
 Williamson, 
 
 Camp v. Forrest, 
 
 Canoy v. Troutman, 
 
 Capeart v. Huey, 
 
 Caperton v. Collison. 
 
 Caplinger v. Stokes, . . 126, 
 
 Sullivan, 
 Carey v. Callan, 
 Carleton v. Banks, . . 584, 
 Carlisle's App., 
 Carmichael v. Hughes 
 Came v. Brice, 
 Carow V. Mowatt, 
 Carr v. Bob, 
 Carrington v. Manning, 
 Carroll v. Connett, 
 'Lee, . 
 Remick, 
 Carson v. Murray, 
 Carter v. Carter, . 305, 587, 
 
 Cutting, 
 Jones, 
 Robinson 
 Rolland, 
 Taggart, 
 Cary v. Turner, 
 Casbord v. Ward, 
 Casey's Lessee v. Inloes, 
 Cassel, Ex parte, 
 Cassidyv. McDaniel, 
 Caston V. Cunningham, 
 Casy V. Colvin, 
 Caters v. Le Roy de Chamont, 
 Cathcart v. Robinson, 
 Catlin V. Eagle Bank, 
 Caton V. Ridout, 
 Caulfield v. McGuire, 
 Cawthorne, Re, 
 Cecil V. Korbman, 
 Chahoon v. HoUenbach, 
 Chalmers v. Hack, 
 Chamberlain v. Thacker, 
 
 Thompson, 327, 
 Chambers v. Chambers, 
 
 Maudlin, 
 Champlin v. Champlin, 
 
 Laytin, 
 Chaney v. Smallwood, 
 Chandler v. Hill, 
 Chaplin v. Givens, . 305, 306, 
 
 Moore, 
 Chase v. Lockerman, , 246 
 
 Chaudron v. Magee, . 
 Chauel V. Villeponteaux, 
 Chauncey v. Crutchfield, 
 Cheshire v. Cheshire, 
 Chester v. Greer, 
 
 PAGE 
 
 . 797 
 
 114, 470 
 . 807 
 
 239, 240 
 . 612 
 . 770 
 . 275 
 . 215 
 . 409 
 . 538 
 . 325 
 . 127 
 . 388 
 
 223, 702 
 . 784 
 . 533 
 . 746 
 
 387, 393 
 
 806, 826 
 . 806 
 
 219, 220 
 . 602 
 
 131, 133 
 
 585, 587 
 . 269 
 . 579 
 . 620 
 . 807 
 . 373 
 
 479, 485 
 
 427, 762 
 . 609 
 . 459 
 . 621 
 
 588, 621 
 . 532 
 . 797 
 . 819 
 
 573, 574 
 . 606 
 . 206 
 . 62 
 . 62 
 
 832, 837 
 
 760, 797 
 . 103 
 . 703 
 . 476 
 . 123 
 . 57 
 . 620 
 . 566 
 . 794 
 . 829 
 
 387, 736 
 . 54 
 . 795 
 
 344, 352 
 . 559 
 
 268, 387 
 
 621, 699 
 . 201 
 . 246 
 . 477 
 
 313, 837 
 . 578 
 
 532, 793 
 . 746 
 . 688 
 . 236 
 
 550, 765 
 . 221 
 
TABLE OF CASES IN AMERICAN NOTES, 
 
 XIX 
 
 er, 
 
 Chesterfield v. Jansen, 
 Cheaterman v. Gardner, 
 Chew's Estate, 
 Chew V. Barnett, 
 
 Com. of Southwark, 
 Child V. Bruce, 
 Chiler v. Woodson, . 
 Chisledon v. Newton, 
 Chittenden v. Chittenden, 
 Choteau v. Jones, 
 Christ V. Diffenbach, . 
 Christ's Hospital v. Graingi 
 Christie v. Bishop, 
 Christmas v. Mitchell, 
 Christopher v. Carrington, 
 Christophers v. White, 
 Christy v. Flemington, 
 Chronister v. Bushey, 
 Church V. Ins. Co., . 
 
 Sterling, 
 Church Building Soc. v. Barlow 
 Churchill v. Dibbin, . 
 Cincinnati v. White, . 
 City Council v. Page, 
 Clagett V. Hall, . 
 Clapper v. House, 
 Clark V. Barnham, 
 
 Clark, . 
 
 Cooke, . 
 
 Hackethorne, 
 
 Partridge, 
 
 Riddle, . 
 
 Lott, . 
 
 McCreary, . 
 
 Minott, . 
 
 Sawyer, 
 
 Saxon, . 
 
 Wyndham, . 
 Clarkson v. De Peyster, 
 Morgan, . 
 Clay V. Hart, 
 
 Irvine, 
 Clemens v. Caldwell, . 
 Clevenstine's App., . 
 Clifton V. Davis, . 
 
 Haig, . 
 Clove V. Martin, . 
 Coates Appeal, . 
 Coats V. Robinson, 
 Cobson V. Blenton, 
 Cochran v. Cochran, . 
 O'Hern, . 
 Codwise v. Golston, . 
 Coggeshall v. Pelton, . 
 Cogswell v. Cogswell, 
 
 Colby V. Kenniston, . 
 Coleman v. McKinney, 
 Lyman, 
 • Wooley, . 
 Collins v. Carlisle, 
 
 Hoxie, 
 
 Ladenberg, . 
 
 Robins, 
 
 Rudolph, 
 Colmer v. Colmer, 
 Colt V. Lesnier, . 
 Colton V. Ross, . " . 
 Columbia Bridge Co. v. Kline 
 Combry v. McMichael, 
 Com. V. Forney, . 
 Martin, . 
 
 PA BE 
 
 311 
 
 750 
 
 269 
 
 757 
 
 427 
 
 220 
 
 75 
 
 388 
 
 107, 663 
 
 . 748 
 
 234, 236 
 
 662, 682 
 
 . 231 
 
 248, 751 
 
 . 470 
 
 . 839 
 
 . 479 
 
 . 783 
 
 . 223 
 
 71, 126 
 
 . 664 
 
 . 620 
 
 . 654 
 
 . 746 
 
 435, 770, 803 
 
 . 198 
 
 . 124 
 
 . 434 
 
 . 584 
 
 . 230 
 
 . 236 
 
 501, 686 
 
 . 113 
 
 . 598 
 
 64, 776, 777 
 
 . 207 
 
 59, 359, 549 
 
 608,610,617 
 
 . 618 
 
 . 747 
 
 . 688 
 
 . 605 
 
 275, 533 
 
 . 610 
 
 . 216 
 
 . 64 
 
 . 716 
 
 . 96 
 
 613, 618 
 
 . 387 
 
 566, 790 
 
 . 583 
 
 473, 475, 491 
 
 . 183 
 
 198, 532, 551, 565, 
 
 566, 626 
 
 . 749 
 
 . 699 
 
 . 237 
 
 613, 617 
 
 87, 95, 72] 
 
 68, 807 
 
 613,618 
 
 485, 493, 495 
 
 . 610 
 
 . 687 
 
 . 233 
 
 . 207 
 
 . 60, 
 
 339, 352 
 
 . 689 
 
 . 67 
 
 Com. 
 
 v. Mateet, 
 
 Nase, 
 Schaeffer, 
 
 Morris, 
 
 131, 
 
 544, 
 
 Commeyerv. United German Churches, 64 
 
 Commiss V. Walker, ... 
 
 Comm. of Donations v. Wybrants, 
 
 Condy v. Adrian, 
 
 Conger v. Ring, . 
 
 Congregational Church v, 
 
 Congreve, Ex parte, . 
 
 Conklin v. Egerton, . 
 
 Conkling v. Washington University, 
 
 Connah v. Sedgwick, . 
 
 Conner v. Lewis, 
 
 New Albany, 
 Conolly V. Lord Howe, 
 Conrad v. Conrad, 
 Conroe v: Birdsale, 
 Contee v. Dawson, 
 Conway v. Green, 
 Cooke V. Crawford, 
 Cook V. Kennedy, 
 Lamotte, 
 Williams, 
 Coomhs V. Jordan, 
 Coonrod v. Coonrod 
 Coope v. Carter, . 
 Cooper V. Cooper, 
 
 Day, . 
 
 Whitney, . 
 Copenheaver v. Huffaker 
 Copeland v. Marine Ins. C 
 Corbin v. Wilson, 
 Corlies v. iLittle, . 
 Corning V. White, 
 Cornwise v. Bourgum, 
 Corry v. Caxton, 
 Corson v. Craig, . 
 Coryell v. Dunton, 
 Costabadie v. Costabadie, 
 Coster v. Griswold, . 
 Cotton V. Clarke, 
 Cotton, 
 Courtenay v. Courtenay, 
 Cousen, Ex partte, 
 Coutant V. Servoss, . 
 
 Schuyler, . 
 Covenhoven v. Schuyler, 
 Covington v. Mclntyre, 
 Cowles v. Brown, 
 Cowling V. Douglass, . 
 Cox V. Walker, . 
 Coykendall v. Rutherford, 
 Cozine v. Graham, 
 Cradock v. Piper, 
 Crafton v. Frith, . 
 Craig v. Craig, . 
 Leslie, . 
 Radford, 
 Cram v. Mitchell, 
 Crane v. Concklin, 
 Cravpford v. Bertholf, 
 Crishholm v. Starke, 
 Crocheron v. Jacques, 
 Crockett v. Crockett, 
 Maguire, 
 Crompton v. Vasser, 
 Crook V. Turpin, 
 Crop V. Brown, 
 Crosby v. Huston, 
 Cross v. Petrie, 
 Crost v. Arthur, 
 
 PAGE 
 . 316 
 
 . 187 
 568 
 
 57 
 
 682 
 
 550 
 
 789 
 
 62 
 
 781 
 
 688, 689 
 
 501 
 
 470 
 
 135 
 
 387 
 
 235 
 
 500 
 
 198 
 
 770, 803 
 
 . 222 
 
 . 400, 401 
 
 . 609 
 
 . 217, 227 
 
 . 372 
 
 . 481 
 
 . 513, 546 
 
 . 767, 770 
 
 . 357, 770 
 
 274, 280, 769 
 
 . 469 
 
 . 746 
 
 223 
 
 576, 577, 57'9, 580 
 . 319 
 . 473 
 . 573 
 . 748 
 . 65 
 . 618 
 . 84, 716 
 . 210 
 817, 819, 830 
 . 557, 558 
 . 282 
 . 781 
 . 380' 
 
 . 76; 
 
 . 558^ 
 . 559' 
 716, 722, 723: 
 . 378 
 386, 387, 428 
 . 688 
 . 77 
 . 839 
 54, 664, 665 
 271, 275, 686. 
 67, 175, 195, 196- 
 64 
 223 
 215 
 . 243 
 . 550 
 . 59 
 83, 84 
 . 245 
 . 113 
 587, 589 
 . 577 
 263, 748 
 . 650 
 . 141 
 
 211, 
 
XX 
 
 TABLE OF CASES IN AMERICAN NOTES. 
 
 PAGE 
 
 Croxten, Ex parte, . . . 806, 827 
 Croyden's Trust, Re, . . .794 
 
 Crozier v. Young 141 
 
 Cruger V. Cruger, .... 618 
 Halliday, . 271, 281, 310, 811 
 
 Hayward 578 
 
 Cruise v. Christopher, . . . 214 
 Crutchfield, Ex parte, . . .568 
 
 Cryder'sApp 498 
 
 Gumming v. Pollock, . . . 617 
 
 Cummings v. Williamson, . . 499 
 
 Cummins v. Cummins, 304, 492, 540, 759, 
 
 760 
 
 Cunningham v. Antrobus, . . 597 
 
 Fithian, . . .206 
 
 Pell, . . .764 
 
 Curren v. Hart, .... 744 
 
 Currie v. Steel, . . . .204 
 
 Curry v. Falkington, . . . 605 
 
 Curtis V. Engel, . . . .617 
 
 Fulbrook, . . . 692, 699 
 
 Mundy, . . . .744 
 
 Murphy 748 
 
 Cushey v. Henry 243 
 
 Cushing V. Ayer, .... 747 
 
 Cutler's Trust, Re 591 
 
 Cutter V. Griswold 141 
 
 Cuyler v. Brant, . . . 129, 373 
 
 D. 
 
 Dabney v. Manning, 
 
 , 
 
 . 
 
 334 
 
 Daggelt V. Lane, 
 
 . 
 
 220 
 
 Dale V. Hamilton, 
 
 , 
 
 78 
 
 Dallam v. Filler, 
 
 270 
 
 471 
 
 Warapole, 
 
 
 618 
 
 Dalton's Settlement, Re, . 
 
 578 
 
 794 
 
 Dalzell V. Crawford, 
 
 481 
 
 482 
 
 Dana V. Bank of U. S., 
 
 
 57 
 
 Dane v. Allen, 
 
 
 598 
 
 Daniel v. Daniel, 
 
 , 
 
 387 
 
 Daniell v. Mitchell, . 
 
 
 206 
 
 Darlington v. McCoole, 
 
 
 113 
 
 Darwin v. Hanley, 
 
 
 470 
 
 Darrah v. McNair, 
 
 169 
 
 381 
 
 Darrington v. Borland, 
 
 
 486 
 
 Dartmouth College v. Woodwar 
 Dashiell v. Att.-Gen., . 10 
 
 d, : 
 
 57 
 
 7, 183 
 
 185 
 
 Davantv. Guerard, . 273,30 
 
 1, 387, 
 
 649 
 
 Davenport v. Prewelt's Adm., 
 
 
 602 
 
 Davidson, Re, 
 
 
 278 
 
 V. Graves, 
 
 
 72 
 
 Proctor, 
 
 
 101 
 
 Davies, Matter of, 
 
 
 278 
 
 Davis's App., 
 
 
 . 702 
 
 704 
 
 Davis's Est., 
 
 
 
 484 
 
 Davis v.. Anderson, 
 
 
 
 469 
 
 Cain, 
 
 
 
 610 
 
 Child, . 
 
 
 
 50 
 
 Davis, . 
 
 
 
 807 
 
 Harkness, 
 
 
 
 573 
 
 Howcott, 
 
 
 
 698 
 
 James, 
 
 
 
 206 
 
 Johannot, 
 
 
 
 570 
 
 McNeil, 
 
 
 
 809 
 
 Mason, 
 
 
 
 583 
 
 Newton, 
 
 
 
 588 
 
 Richardson, 
 
 
 
 99 
 
 Roberts, 
 
 
 
 573 
 
 Simpson, 
 
 
 
 220 
 
 Tingle, 
 
 
 '. 198 
 
 774 
 
 PAGK 
 789 
 
 Davis v. Wright, 
 
 Davoue v. Fanning, 220, 690, 784, 788, 789 
 
 Dawes v. Betts. 
 
 Howard, 
 Dawson V. Dawson, 59,81, 
 Day V. Day, 
 Deaderich v. Cantrell, 
 Deadarich v. Watkins, 
 Dean v. Dean, 
 De Armand v. Phillips, 
 Deatly v. Murphy, 
 De Barante v. Gott, . 
 De Beil v. Thompson, 
 Debell v. Foxworthy, 
 De Bevoise v. Sandford, 
 Decouche v. Savetier, 
 Dedham Bank v. Richards, 
 De Forest v. Bacon, . 
 DehufFv. Turbitt, 
 De Klyn v. Watkins, 
 Delafield v. Anderson, 
 Golden, . 
 Delamater's Est., 
 Delany v. Hutchinson, 
 Delaplaine v. Lawrence, 
 Demarree v. Driskill, . 
 Den v. Allen, 
 
 BolJon, . 
 
 McKnight, 
 
 Van Ness, 
 Denning v. Smith, 
 Dennison v. Gcehring, 11 
 
 High, . 
 Denston v. Morris, 
 De Peyster v. Clarkson. 
 
 Clendinning, 
 Ferrers, 
 Gould, . 
 Devey v. Thornton, 
 Devingly v. Norris, 
 Devinney v. Reynolds, 
 De Walt y. Covenhoven 
 Dewey v^ Adams, 
 
 Littlejohn 
 Dewitt V. Eldred, 
 Dexter v. Arnold, 
 Dey V. Dunham, . 
 Dias V. Brunell, . 
 Dick V. Pitchford, 
 Dickerson's App., 
 Dickerson v. Dickerson, 
 Dickinson v. Codwise, 
 Dickson's Trust, . 
 Dickson v. Miller, 
 
 Montgomery, 
 Dietterich v. Heft, 
 Diffenderfer v, Winder, 
 Dillard v. Dillard, 
 Crocker, 
 Tomlinson, . 
 Dimes v. Scott, . 
 Dimmock v. Bixby, 
 Dinsmore v. Biggett, . 
 Ditchen v. King, . 
 Dobbins v. Stevens, . 
 Dobson V. Racey, 
 Scott, . 
 Doe V. Burrough, 
 
 Cafe, 
 
 697 
 
 579 
 
 13,243,274,605 
 
 807, 826 
 
 433, 434, 435, 544 
 
 . 210 
 
 70,71,77 
 
 . 206 
 
 . 213 
 
 . 59 
 
 . 515 
 
 . 747 
 
 220, 783, 845 
 
 372 
 
 Clandge, 327, 328, 339, 341, 343, 348 
 Courlnay, . . . .705 
 Davies 350 
 
 . 476 
 . 472 
 . 790 
 53 
 . 210 
 . 807 
 . 789 
 . 129 
 . 704 
 . 141 
 
 169, 501 
 . 680 
 230 
 . 357 
 . 753 
 1, 113, 126, 458 
 . 599 
 . 238 
 
 532, 805 
 274, 336, 558 
 . 425 
 . 125 
 
 813, 824 
 . 225 
 . 699 
 . 618 
 . 470 
 . 470 
 . 601 
 . 391 
 . 749 
 
 758, 759 
 568. 608, 845 
 . 380 
 . 77 
 
 126, 586 
 . 567 
 . 618 
 . 107 
 . 533 
 
 532, 533 
 . 141 
 . 125 
 . 532 
 . 555 
 . 793 
 
 352, 355 
 . 54 
 . 225 
 . 237 
 . 559 
 . 705 
 329, 343, 344 
 
TABLE OF CASES IN AMERICAN NOTES. 
 
 XXI 
 
 480, 
 
 Bank 
 
 Doe V. Ferrand, . 
 
 Hole, 
 
 Harris, 
 
 Hughes, . 
 
 Langdon, . 
 
 Lewis, 
 
 Lord Kensington 
 
 Phillips, . 
 
 Robinson, 
 
 Rushman, 
 
 Stephens, . 
 
 Williams, . 
 
 Willis, . 
 Dodson V. Simpson, 
 Doggelt V. Emerson, 
 Dold V. Geiger, . 
 Dole V. Lincoln, . 
 Donalds V. Plum, 
 Donaldson v. West Branch 
 Donnington v. Mitchell, 
 Donohoe v. Conrahy, 
 Doolittle V. Morris, 
 Dorsey v. Clarke, 
 Dorsey, 
 Gilbert, 
 Dorland v. Dorland, 
 Dorr V. Wainright, 
 Doswell V. Buchanan, 
 Doty V. Mitchell, 
 Douglass V. Andrews, 
 CoDgreve, 
 Russell, . 
 Dow's Petition, Re, . 
 Dower v. Fortner, 
 Downe tViscountl v. Morris 
 Downer v. Downer, 
 Downman v. Rust, 
 Doyle V. Sleeper, . 
 Teas, . 
 D'Oyley v. Loveland, . 
 Drane v. Bayliss, 
 
 Gunter, . 
 Drayton v. Drayton, . 
 
 Grimke, 
 Drever v. Mawdesley . 
 Drew V. Earl of Norbury, 
 Drum V. Simpson, 
 Drummond v. Attorney-General, 
 Drury v. Connor, 
 Scott, . 
 Duberly v. Day, . 
 Dubose V. Dubose, 
 Duckett V. Skinner, . 
 Dudley v. Bosworlh, . 
 Duffy V. Calvert, . 
 Duke V. Fuller, . 
 Dumond v. Magee, 
 Dunbar, Re, 
 Duncan v. Fower, 
 Dundas v. Biddle, 
 Dunkley v. Dunkley, . 
 Dunlap V. Dunlap, 
 Gibbs, 
 Mitchell, . 
 Dunn V. Chambers, . 
 
 Keeling, 
 Dunscombev. Dunscombe, 
 Duncome v. Levy, 
 Dunwoodie v. Reed, . 
 Dupont V. Johnson, 
 Dupre V. Thompson, . 
 Durant v. Ritchie, 
 
 500,501, 
 359, 363, 
 
 690 
 
 369 
 
 123 
 
 705 
 
 359, 376 
 
 . 692 
 
 123 
 
 705, 706, 707 
 
 705, 706 
 
 . 669 
 
 . 233 
 
 206, 238, 239, 240 
 
 . 599 
 
 . 77 
 
 357, 790 
 
 . 601 
 
 . 605 
 
 . 75 
 
 . 689 
 
 71,75, 125,133 
 
 223 
 
 PAGE 
 
 . 705 
 
 705, 706 
 
 . 664 
 
 570 
 
 690 
 
 271 
 
 231 
 
 612 
 
 579 
 
 555 
 
 52 
 
 570 
 
 206 
 
 64 
 
 712 
 
 508,510, 512 
 
 125, 126, 141 
 
 49, 751 
 
 . 481 
 
 . 688 
 
 272, 313, 399 
 
 . 691 
 
 . 689 
 
 528, 536 
 
 . 746 
 
 76, 392 
 
 . 680 
 
 . 246 
 
 . 620 
 
 597,600, 603 
 
 . 483 
 
 . 570 
 
 136, 143 
 
 697, 738 
 
 660, 667 
 
 . 595 
 
 . 79 
 
 . 129 
 
 59, 407 
 
 588, 590, 593 
 
 . 186 
 
 . 238 
 
 . 223 
 
 . 221 
 
 486, 501 
 
 243,274,532,817 
 
 . 798 
 
 . 446 
 
 . 578 
 
 54, 111 
 
 . 325 
 
 696 
 
 PAGE 
 
 Durant v. Salley, . . . .601 
 Dutch Ch. V. Mott, . . . .358 
 
 Duval V. Craig, 397 
 
 Farmers' Bank, . . . 596 
 
 Dyas V. Cruise, 705 
 
 Dyer v. Potter 806 
 
 Dyoti'sEst 532 
 
 Dyott V. N. A. Coal Co., . . .612 
 Dwight V. Pomeroy, .... 236 
 
 E. 
 
 Eagle Fire Co. v. Lent, ... 55 
 Easton v. Carter, .... 304 
 Eckford v. DeKay, . . . 538, 568 
 Edgar v. Donnelly, .... 126 
 Edgington v. Williams, . . . 141 
 Edmonds v. Cranshaw, . . 222, 434 
 Edmondson v. Dyson, . . . 458, 465 
 
 Edwards v. Jones 120 
 
 Roberts 237 
 
 Egbert v. Brooks, . . . .832 
 Eichelberger v. Barnitz, . . . 559 
 Elcock V. Mapp, . . . 163, 165 
 
 Eldridge v. Jenkins 202 
 
 Eliolt v. Merryman, .... 481 
 
 EUett v. Paxson 703 
 
 Elliott v. Armstrong, 71, 126, 132, 134, 357 
 
 380 
 Cornell, . . . .234 
 
 Elliott, 772 
 
 Hart 141 
 
 Lewis, .... 427, 762 
 
 Ellis V. Amason, .... 652 
 
 Baldwin, . . . .600 
 
 Maxwell, . . . .563 
 
 J^immo, 113 
 
 Ellison V. Ellison 115 
 
 Elwin 599, 604 
 
 Woods, . . . .559 
 Elmendorfv. Taylor, . . 240,377,378 
 
 Elms v. Hughes 600 
 
 Elwin V. WiUiams, . . . .599 
 
 Ennis v. Leach 397 
 
 Ensley V. Ballentine, . . 125,127,132 
 Enos V. Hunter, . . . . .131 
 
 Epley V. Witherow 744 
 
 Episcopal Church v. Wiley, . . 53 
 Erickson V. Willard, . . . 84,95 
 
 Ervine's App., - 698 
 
 Erwin v. Parham, .... 210 
 
 Escheater v. Smith 64 
 
 Esham v. Lamar, .... 211 
 Eshelman v. Shuman's Adm., . . 598 
 
 Es()ey V. Lake, , 217 
 
 Etty V. Bridges, .... 651, 652 
 
 Evans's Estate, 434 
 
 Evans v. Brown, .... 64 
 
 Davis 68 
 
 Ellis 224 
 
 Hillier, 519 
 
 Inglehart, . 520, 556, 558, 559 
 
 Jones, 748 
 
 Knorr 609, 610 
 
 Scott 517 
 
 Everett, Re, 794 
 
 v. Winn 797 
 
 Evertson v. Toppan, .... 789 
 
 Ewing v. Furness, .... 806 
 
 Higbee, . . . .704 
 
 Smith 612 
 
xxu 
 
 TABLE OF OASES IN AMERIOAN NOTES. 
 
 PASE 
 
 Eyre v. Countess of Shaftesbury, . 574 
 Eyrich V. Hetrich, . 59,304,311,568 
 
 F. 
 
 . 256 
 
 . 64 
 
 233 
 
 53, 67, 129 
 
 . 278 
 
 . 210 
 
 . 62 
 
 745, 748 
 
 204, 238, 373 
 
 240, 785 
 
 . 809 
 
 . 573 
 
 . 806 
 
 . 334 
 
 Fears v. Brooks, 608, 609, 610, 611, 613, 615 
 
 Fag^'s Trust, Re 
 
 Fairfax v. Hunter, 
 
 Fambro v. Gantt, 
 
 Farley v. Shippen, 
 
 Farmer, Re, 
 
 Farmer's Bank v. Douglass, 
 
 Farmers' Loan Co. v. The Peopl( 
 
 Farnswflrth y. Childs, 
 
 Farnum v. Brooks, 
 
 Farr v. Farr, 
 
 Sheriff, . 
 Farrance v. Wiley, 
 Farrier v. Cairns, 
 Fay V. Fay, 
 
 Fellows V. Tann 
 Felton V. Hunter, 
 Fenwick v. Chapman, 
 Greenway, 
 Feoffees of Heriot's Hospital v 
 Ferguson v. Applenhite, 
 Ferguson, 
 Franklin, 
 Ferraby v. Hobson, 
 Ferebee v. Proctor, 
 Ferris v. Brush, . 
 
 Henderson, 
 Fetters v. See, 
 Field's Settlement, Re 
 Field V. Field, . 
 
 Arrowsmith, 
 Lonsdale, 
 Schieffelin, 
 Wilson, . 
 Finden v. Stephens, 
 Findlay v. Patterson. . 
 Findley's Lessee v. Riddle 
 Finley v. Jones, 
 Finney v. Cochran, 
 Fish V. Howland, 
 Miller, . 
 Fisher v. Fields, 
 Filbert, 
 Fisher, 
 Knox, . 
 Taylor, 
 Worth, 
 Fisk V. Sarber, . 
 Fitch V. Ayer, . 
 Weber, . 
 Filler v. Maitland, 
 Fitts V. Hall, . . 
 Fitzgerald v. Peck, 
 Fitzsimmons v. Joslin 
 Fitzpatrick v. Bent, 
 
 238 
 
 78, 
 
 608 
 
 245 
 
 486 
 
 547, 817 
 
 683 
 
 796 
 
 . 206 
 
 . 64 
 
 . 627 
 
 . 685 
 
 592 
 
 239, 240 
 
 . 238 
 
 794, 830 
 
 . 680 
 
 65, 243, 274 
 
 137, 151 
 
 233, 569 
 
 238, 240 
 
 . 95 
 
 . 218 
 
 . 458 
 
 . 806 
 
 . 372 
 
 794, 797 
 
 . 772 
 
 82, 83, 344 
 
 . 610 
 
 . 566 
 
 . 652 
 
 . 568 
 
 , 473 
 
 223, 639, 788 
 
 611 
 
 158, 175, 196 
 
 471, 484 
 
 . 198 
 
 . 204 
 
 . 201 
 
 . 235 
 
 Flagg V. Mann, 
 
 71,77, 133,231,744,749, 
 750, 757, 766 
 
 Fletcher, Ex parte, .... 794 
 
 V. Peck, . . . .231 
 
 Fleming V. Burgin, .... 748 
 
 Donahoe, . . 70, 71, 136 
 
 Townshend, . . .123 
 
 Flint V. Clinton Company, . . 304, 305 
 
 Warren, . 109, 158, 196, 656 
 
 Flory V. Becker 599 
 
 Floyd V. Barker, . . . 187, 829 
 
 Floyd V. Johnsori, 
 
 Flowers v. Franklin, 
 
 Flouray v. Johnson, 
 
 Fogg V. Middleton, 
 
 Foley V. Burnell, 
 
 Foote y. Colvin, . 
 
 Forbes y. Peacock, 
 
 Ford V. Herron, . 
 Garthen, 
 
 Forrest y. Warrington 
 
 Forsyth v. Clark, 
 
 Fort V. Burch, . 
 Gooding, 
 
 Fortescue v. Barnett, 
 
 Forward v. Armstead, 
 
 Foster v. Crabb, 
 Craig, . 
 Crenshaw, 
 Goree, . 
 Trustees, 
 
 Foscue V. Foscue, 
 
 Fowke V. Slaughter, 
 
 Fowler y. Reynall, 524, 
 
 Foxhall, Re, 
 
 Fox y. Cash, 
 
 Phelps, . 
 
 Fozier v. Andrews, 
 
 Franklin y. Creyon, 
 Osgood, 
 
 Frauenfeldt's. Estate, 
 
 Frazier v. Frazier, 
 
 Brownlow, 
 
 Freeman v. Cook, 
 Deming, 
 Freeman, 
 Fairlee, 
 Hill, . 
 Kelly, 
 Tompkins 
 
 Freeport v. Bartol, 
 
 Fremington School, Re, 
 
 French v. French, 
 
 Freto y. Brown, . 
 
 Frost y. Beekman, 
 
 Frothingham y. Stacker, 
 
 Fry y. Fry, . 
 
 Furman y. Coe, . 
 Pulham, 
 
 Fulham, Re, 
 
 PAtJE 
 499 
 559 
 358 
 111 
 468 
 125 
 
 500, 501, 513, 740 
 . 210 
 487, 489 
 . 598 
 134, 235 
 . 755 
 . 790 
 . 120 
 . 113 
 . 384 
 . 690 
 . 493 
 263, 704 
 125, 134 
 372, 373 
 . 133 
 540, 542, 763, 764 
 . 270 
 . 373 
 . 518 
 819, 824 
 . 586 
 . 428 
 . 599 
 65, 187 
 . 618 
 569, 766 
 . 231 
 . 77 
 . 583 
 . 380 
 132, 134 
 835 
 . 78 
 . 669 
 216, 324 
 . 578 
 231, 754 
 . 748 
 . 71 
 572, 837 
 . 819 
 . 278 
 
 817, 
 
 204 
 
 126, 
 
 G. 
 
 Gable v. Miller, . 
 Gabriel y. Sturges, 
 Gadsden, Ex parte, . 
 Gaffee's Trust, . 
 Gage y. Rogers, . 
 Gaines v. Chew, . 
 Galbraith v. Elder, . 
 Gale's Petition, . 
 Gallatin y. Cunningham, 
 Gallatian y. Erwin, 
 Gallego y. Alt.-General, 
 Gallion y. McCaslin, . 
 Gait y. Dibsell, . 
 Galluchal, Ex parte, . 
 Gardner v. Astor, 
 
 Gardner, . 
 
 Heyer, . 
 
 Marshall, . 
 Gardiner y. Fell, 
 
 . 680 
 
 . 811 
 
 639, 342, 344 
 
 608, 614, 615 
 
 . 806 
 
 . 124, 207 
 
 . 639, 788 
 
 . 275 
 
 . 219 
 
 754 
 
 183 
 
 753 
 
 112 
 
 273 
 
 357 
 
 481,485,486, 617 
 68 
 593 
 54 
 
 107, 
 
 \ 
 
TABLE OF CASES IN AMERICAN NOTES. 
 
 XXlU 
 
 PAGE 
 
 . 570 
 458, 459 
 
 . 806 
 
 233,481,493,740 
 
 532, 533 
 
 112, 472 
 
 Garland V. Loring, 
 Garner v. Garner, 
 
 Strode, 
 Garnett v. Macon, 
 Garniss v. Gardner, 
 Garrard v. Lord Lauderdale, 
 
 Tuck, 
 Garrett v. Carr, . 
 Garrett, 
 Gary v. May, 
 Gasque v. Small, 
 Gasa V. Wilhite, . 
 Gassett v. Grout, 
 Gast V. Porter, . 
 Gay V. Ballow, . 
 Genet v. Talmadge, 
 Gest V. Frazier, . 
 Geroe v. Winter, . 
 Getman v. Beardsley 
 Geyer v. Branch Bank 
 Glieen v. Osborne, 
 Ghost V. Waller, . 
 Gibbes v. Smith, . 
 Gibbs V. Cunningham 
 
 Marsh, . 
 Gibson's Case, 
 Gibson v. Armstrong, 
 
 Toner, 
 Gibler v. Trimble, 
 Giddings v. Eastman, 
 Giles V. Grovey, . 
 Gill V. Logan, 
 
 McAltee, . 
 Glenorchy (Lord) v. Bosville, 
 Gochenaur v. Froelich, 
 Godley v. Taylor, 
 Godmanchester Gram. School, Re, 
 Going V. Emery, 107, 183, 500, 667, 686 
 Gomez v. Tradesman's Bank, 66, 78, 126, 
 
 131 
 
 359, 363, 367, 373, 379 
 533 
 126, 765 
 . 479 
 . 211 
 107, 663 
 . 588 
 . 698 
 . 578 
 569, 570 
 210, 216 
 . 691 
 806, 807 
 . 610 
 565, 566 
 . 530 
 274, 769 
 702, 703 
 8fi 
 299, 703 
 . 185 
 . 702 
 747 
 789 
 62 
 339 
 749 
 458 
 715 
 398 
 669 
 
 746, 
 786, 
 
 Good V. Harris, . 
 Goode V. West, . 
 Goodell V. Freed, 
 Goodhue v. Barabell, . 
 Goodrich v. Downs, . 
 
 Staples, . 
 Goodwin v. Gosneli, . 
 
 Moore, 
 Gowing V. Rich, . 
 Gordon's App., . 
 Gordon v. Atkinson, . 
 
 Preston, 
 Gore V. Knight, . 
 Gosling V. Carter, 
 Gott V. Cook, 
 Gould V. Gould, . 
 Gouverneur v. Elmendorff, 
 
 Titus, . 
 Gower v. Grosvenor, . 
 
 . Steiner, 
 Glanville (Earl) v. McNeile; 
 Glasgow V. Sands, 
 
 Coll. V. Att.-Gen, 
 Glass V. Ramsey, 
 Glasscock v. Minor, . 
 Glaze V. Drayton, 
 Glen V. Fisher, . 
 Glenn v. McKim, 
 Randall, 
 Grace v. Webb, . 
 Grace y v. Davis, . 
 Graff V. Castleton, 
 
 501 
 
 609, 612 
 . 794 
 . 235 
 . 246 
 . 469 
 . 198 
 . 764 
 . 602 
 . 141 
 . 380 
 
 175, 196 
 . 499 
 . 620 
 
 690, 740 
 
 575, 726 
 
 207, 237 
 . 235 
 . 806 
 . 468 
 . 235 
 . 261 
 . 605 
 
 656, 680 
 . 826 
 . 202 
 . 243 
 . 515 
 433, 434, 435 
 . 125 
 
 567, 568 
 . 473 
 . 233 
 
 Graham v. Austin, 
 
 Davidson, 
 Graham 
 Lambert, 
 Little, 
 Samuel, 
 Torrance, 
 Grant, Re, . 
 
 V. Duane, . 
 Hook, . 
 Thompson 
 Van Schoovenhoven 
 Grantland v. Wright 
 Granville (Earl) v. McNeile, 
 Gratz V. Cohen, . 
 Prevost, 
 Grave v. Shaw, . 
 Graves v. Dugan, 
 
 Gray's Est 
 
 Gray v. Fox, 
 Hill, 
 
 Lynch, . 
 Thompson, . 
 Wood, . 
 Greedy v. Lavender, . 
 Green v. Beatty, 
 Greene v. Borland, 
 Green v. Drinker, 
 Folgham, 
 Green, . 
 Morse, . 
 White, . 
 Slayter, 
 Thompson, . 
 Winter, 
 Greenfield's Est., 
 Greening v. Fox, 
 (5reenleafv, Queen, . 
 CJreenwood v. Eldridge, 
 Gregory v. Marks, 
 Smith, 
 Gridley v. Andrews, . 
 Griffin v. Graham, 
 
 Macauley, . 
 Griffith v. Chew, 
 
 ' Griffith, 59^ 
 
 PAGE 
 
 . 434 
 373, 434 
 . 338 
 78, 111 
 . 699 
 . 748 
 . 373 
 . 58 
 . 391 
 . 481 
 . 56 
 . 618 
 . 397 
 . 688 
 . 215 
 . 373 
 . 704 
 . 134 
 . 601 
 521, 540 
 . 472 
 835, 837 
 . 532 
 
 597, 
 
 235 
 
 588 
 
 . 388 
 
 . 255 
 
 . 748 
 
 . 52 
 
 . 621 
 
 . 477 
 
 . 746 
 
 . 746 
 
 210, 214 
 
 626, 789, 823 
 
 111,217,227 
 
 533 
 
 301, 702, 703, 802 
 
 236 
 
 600 
 
 104 
 
 508 
 
 107, 183, 656, 662 
 
 627 
 
 244 
 
 231, 243, .610, 745, 
 
 77, 
 
 Van Haythusan, 
 GrifTitts V. Cope, . 
 
 Ricketts, . 
 Grimstone v. Carter, . 
 Griswold v. Penniman, 
 
 Smith, 
 Groton v. Ruggles, 
 Grout V. Van Schoonoven, 
 Groverman v. Diffenderfer, 
 Groves v. Groves, 
 Guerrant v. Fowler, 
 Gunler v. Thomas, 
 Guphill v. Isbell, 
 Guthrie v. Gardner, 
 Guyer v. Maynard, 
 Guyton v. Shane, 
 
 H. 
 
 Habershon v. Varden, . . . 659 
 Hadden v. Chorn, . . . 654, 680 
 Hadley v. Hopkins's Academy, 107, 183, 
 
 682 
 Latimer, .... 214 
 
 . 761, 796 
 107, 673, 682 
 11 
 749 
 598 
 749 
 272 
 54 
 606 
 130 
 53 
 204 
 387 
 137, 141 
 334, 686 
 . 808 
 
XXIV 
 
 TABLE OF CASES IN AMERICAN NOTES. 
 
 Hadley's Trust, . 
 Hadow V. Hadow, 
 Hafner v. Irwin, . 
 Hagthorp v. Hook, 
 Haines v. O'Connor, 
 Hake v. Fink, 
 Haldenby v. Spoflfbrth 
 Halford v. Stains, 
 Hallett V. Collins, 237, 238, 240, 
 Hallett, 
 Thompson, 
 Hall's Charity, Re, 
 Hall V. Austin, . . . 762, 
 
 Dennison, 
 
 Franck, . 
 
 Irwin, 
 
 Hugonin, . 
 
 Macdonald, 
 
 Sayre, 
 
 Thompson, 
 
 Timmons, 
 Halliday, Re, 
 Halsey v. Whitney, 
 
 Van Amringe, 
 Halsfead v. Bank of Kentucky, 
 Hamberlin v. Perry, . 
 Hamersly v. Lambert, 
 Hammersley v. Smith, 
 Hamilton v. ^ishop, . . 586, 
 Hampshire v. Bradley, 
 Hanly v. Sprague, 
 Hannum v. Spear, 
 Hancock v. Minot, 
 Handly v. Snodgrass 
 Hanson v. Keatmg, 
 Harder v. Harder, . . 131 
 Hardin v. Baird, . 
 Bond, . 
 Harding v. Glyn, 
 
 Hardy, . . 206, 
 
 Randall, 
 
 Hardy v. Cole, . 
 
 Skinner, 
 
 Summers, 
 
 Hardwick v. Hook, 
 
 Hargood v. Wells, . . 273 
 
 Harnett v. McDougal, 
 
 Harlan v. Brown, 
 
 Harland's Accounts, 
 
 Harland v. Bink, . 
 
 Harper v. Reeves, 
 
 Harrington v. Brown, 
 
 Harris's Will, Re, 
 
 Harris v. Arnold, 
 
 Barnett, 
 
 Carter, . 
 
 Fly, . 
 
 Williamson, 
 
 Harrisburg Bank v. "Tyler, 
 
 Harrison v. Harrison, 89, 92, 95, 
 
 Howard, . 
 
 Lemon, . 
 
 McMennomy, 
 
 Mock, . . 223 
 Harris v. Poyner, 
 Harrison v. Rowan, 
 
 Warner, . 
 Harrod v. Faunlleroy, 
 Hart V. Ten Eyck, . . 
 Hariman v. Bowdal, . 
 Harton v. Harton, , 
 
 PAGE 
 
 274, 307 
 
 84, 578 
 
 . 469 
 
 751, 757 
 
 131, 135 
 
 . 601 
 
 . 762 
 
 519, 563 
 
 757, 789 
 
 . 796 
 
 . 568 
 
 668 
 
 764 
 
 483 
 
 . 818 
 
 . 688 
 
 597 
 
 . 506 
 
 . 611 
 
 . 203 
 
 198, 774 
 
 763, 
 
 409, 410 
 
 470, 472 
 
 827, 830 
 
 . 231 
 
 187, 207 
 
 . 67 
 
 . 608 
 
 610, 612 
 
 . 819 
 
 . 756 
 
 . 481 
 
 . 493 
 
 . 532 
 
 . 583 
 
 132, 135 
 
 . Ill 
 
 . 78 
 
 . 95 
 
 213, 214 
 
 . 201 
 
 . 806 
 
 . 470 
 
 . 750 
 
 . 790 
 
 573, 574 
 
 615, 617 
 
 . 699 
 
 . 533 
 
 . 112 
 
 . 748 
 
 . 223 
 
 . 829 
 
 . 748 
 
 76,79 
 
 . 746 
 
 . 508 
 
 . 200 
 
 126, 132 
 
 101, 300, 
 
 770 
 
 . 235 
 
 56, 215 
 
 . 75 
 
 483, 525 
 
 561, 565 
 
 . 793 
 
 . 806 
 
 . 240 
 
 . 767 
 
 . 599 
 
 . 343 
 
 PAGE 
 
 _ , 
 
 277 
 
 '. 
 
 814 
 
 
 539 
 
 . 
 
 392 
 
 '. 487 
 
 508 
 
 . 
 
 685 
 
 _ , 
 
 483 
 
 
 237 
 
 .' 605, 832 
 
 835 
 
 
 473 
 
 
 434 
 
 ; '. 481 
 
 513 
 
 . 
 
 584 
 
 
 611 
 
 '. '. 392 
 
 799 
 
 Hartwell's Will, Re, . 
 Hartzell v. Brown, 
 Harvard College v. Amory 
 Harvey v. Alexander, 
 Hasenclaver v. Tucker, 
 Haskell v. House, 
 Hastings v. Baldwin, . 
 Hatfield v. Montgomery, 
 Hatton v. Weems, 
 Haughton v. Davis, 
 Hauser v. Lehman, 
 
 Shore, 
 Haviland v. Myers, 
 Hawkins v. Coulton, . 
 Hawkins, 
 
 Hawley v. Cramer, 222, 223, 224, 236, 784 
 
 James, 53,54.175,176,185,338, 
 
 515, 518, 691, 716, 793, 
 
 832 
 
 Ross, . 
 
 Haxall's Exr's v. Shippen, 
 
 Haxtun v. Corse, 
 
 Hays, Ex parte, . 
 
 V. Heidleberg, . 
 Hayes v. Jackson, 
 Good, . 
 Kershaw, 
 Hay ward v. Hay ward, . 
 Haywood v. Craven, . 
 Gurley, . 
 Heager's Executors, Re, 
 Hearn v. Crutcher, 
 Heath v. Knapp, . 
 Heathman V. Hall, 
 West, 
 Heatley v. Finster, 
 Heck V. Cllppinger, . 
 Hedges v. Riker, 
 Heistner v. Fortner, . 
 Helferistrine v. Garrard, 
 Helms V. Franciscus, . 
 Helm V. Hardin, . 
 Helsey v. Western, . 
 Hemphill's App., 
 Henderson v. Henderson, 
 Hoke, . 
 Kennicott, 
 Peck, . 
 Vaulx, . 
 Hendrickson v. Dean, . 
 Hennershitz' Estate, . 
 Hennessey v. Andrews 
 
 Henry v. Morgan, 
 Henson v. Kinnaird; 
 Herlell v. Bogert, 
 Hester v. Hester, 
 
 Wilkinson, 
 Heth v. Richmond R 
 
 Hey's Will, Re, . 
 Heyer v. Burger, 
 Heyward v. Cuthbert, 
 Hickey v. Young, 
 Hickling v. Boyer, 
 Hickman v. Stout, 
 Higgins v. Joyce, 
 Higne v. Batte, . 
 Hill v. Edmonds, 
 
 Hill,. 
 
 Josselyn, . 
 Hillegas v. Hillegas, 
 
 270, 280 
 
 . 565 
 
 . 707 
 
 574, 577 
 
 475, 491 
 
 169, 493 
 
 240, 373 
 
 111, 113,114 
 
 . 598, 602 
 
 184 
 
 71 
 
 639, 788, 789 
 
 . 483 
 
 400, 404 
 
 . 609 
 
 . 610 
 
 . 746 
 
 . 610 
 
 . 695 
 
 . 380 
 
 . 324 
 
 593, 595, 606 
 
 794 
 
 493 
 
 523, 539,542 
 
 52 
 
 125 
 
 517 
 
 703 
 
 550 
 
 680 
 
 171 
 
 748 
 
 Western Bank, 470, 474, 484 
 
 83, 
 
 232, 387, 752 
 . 111,377 
 . 233 
 183, 689, 826 
 . 593, 650 
 Co., 538, 765, 
 767 
 . 794 
 . 621 
 . 579 
 . 131 
 . 565 
 . 238 
 . 204 
 . 753 
 . 585 
 169, 584 
 . 428 
 . 703 
 
TABLE OF CASES IN AMERICAN NOTES. 
 
 XXV 
 
 Hillyard v. Miller, 
 Hilton V. Giraud, 
 Hinchman v. Emaus, . 
 Hind's Est., . 
 Hine v. Dndd, 
 Hines v. Spruill, 
 Hinves v. Hinves, 
 Hitchcock V. Bank of U. S, 
 
 Clendennin, 
 Hite V. Hite, , . 
 Hoare v. Harris, . 
 Hobert v. Andrews, . 
 Hobby V. Allen, . 
 Hockenbury v. Carlisle, 
 Hodge V. Atty.-Gen., 
 
 Hawkins, 
 Hodger v. MuUiken, . 
 Hodgson's Settlement, Re 
 Hoes V. Van Hoeson, . 
 Hogan V. Hogan, 
 Hoge V. Hoge, 
 Hoghton V. Hoghton, . 
 Holbrook v. Waters, . 
 Holden V. Durbin, 
 
 Crawford, . 
 Holdridge v. Gillespie, 
 Holliday v. Coleman, . 
 
 Sommerville, 
 Hollingshead v. Allen, 
 Hollisv. Hollis, . 
 Holmes v. Nesh, . 
 Holt V. Dewalt, . 
 Homer V. Shelton, 
 Hone V. Van Shaick, . 
 Honnor v. Morton, 
 Honore v. Blakewell, . 
 Hood V. Bridport, 
 
 Fahnestock, . 
 Hoopes V. Dundas, 
 Hoover v. Hoover, . 485, 
 
 Samaritan Soc, 
 Hope V. Johnson, 
 Hopkins V. Gerrard, . 
 
 Ray, . 
 
 Turnpike Co., 
 
 Ward, 
 Horrey v. Glover, 
 Horsley v. Forcett, 
 Home V. Lyeth, . 
 Hon V. Sorrell, . 
 Hosack V. Rogers, 274, 475, 
 
 Hoskins v. Miller, 
 Hospital V. Amory, 
 Hotchkiss V. Fortson, . 
 Houck V. Houck, 
 Houlditoh V. Donegal, 
 Hough V. Richardson, 
 Houghton V. Davis, . 
 
 Ex parte, . 
 Hovey v. Holcomb, . 
 How v. Camp, . 
 Ruxton, . 
 Howard v. Edgell, 
 
 Ins. Co. V. Halsey, 
 V. Moffett, 
 Howe V. Earl of Dartmouth, 
 
 Howe, . 
 Howel V. Baker, 
 Howell V. Edgar, 
 
 Howell, 
 
 James, 
 
 PiSE 
 
 564, 662 
 73, 664 
 
 199, 204 
 . 601 
 . 748 
 
 479, 485 
 . 566 
 . 336 
 . 595 
 . 515 
 . 397 
 . 473 
 
 584, 597 
 . 225 
 . 62 
 . 533 
 
 392, 790 
 
 262, 277 
 
 493, 497, 508 
 
 . 187 
 
 . 208 
 
 204, 217, 218 
 
 . 599 
 
 . 302 
 
 . 211 
 
 639, 788, 789 
 
 . 550 
 
 . 511 
 
 . 79 
 
 . 125 
 
 . 210 
 
 430, 746 
 
 . 558 
 
 . 772 
 
 . 599 
 
 . 751 
 
 . 569 
 
 230, 749, 752 
 
 . 568 
 
 510,513,514 
 
 . 619 
 
 . 334 
 
 . 749 
 
 . 484 
 
 . 57 
 
 . 386 
 
 549, 558, 559 
 
 . 796 
 
 . 458 
 
 . 620 
 
 506, 803, 808, 
 
 826, 827 
 . 605 
 . 255 
 . 215 
 . 690 
 . 52 
 201,202, 237 
 . 797 
 . 127 
 . 71 
 . 230 
 . 573 
 . 210 
 . 752 
 . 606 
 550, 558 
 557,558, 561 
 133, 208 
 . 469 
 550, 602 
 . 53 
 
 PAGE 
 
 Howell V. Ransom, .... 224 
 
 Whitechurch, . . .207 
 
 Hower v. Geesaman, . . . 387 
 
 Howland v. Fish 796 
 
 Howley v. James, .... 54 
 
 Hoxie V. Carr, 124 
 
 Hoyle V. Stowe, .... 705 
 
 Hoyt V. Hilson 572 
 
 Hubbard v. Goodwin, ... 67 
 Hudgin V. Hudgin, .... 486 
 
 Hudnal v. Wilder 123 
 
 Hudson V. Hudson, . . 222, 223, 373 
 
 Maze 484 
 
 Wadsworth, . . . 550 
 
 Huff, Ex parte 523, 697 
 
 Httger V. Huger, .... 570 
 
 Hughes V. Caldwell, . . 272, 400, 406 
 
 Edwards, . . . .748 
 
 Evans, .... 162 
 
 Wells, . . 244, 380, 618 
 
 Hull V. Harris, 759 
 
 Humber v. Rector of Trinity Church, 238 
 Hulme V. Tennant, 586, 607, 609, 611, 613, 
 
 ' 618 
 
 Hundley v. Mount 748 
 
 Hunt V. Bass, . . 222, 692, 698, 784 
 
 Booth, 610 
 
 .Crawford 387 
 
 Hadden 688 
 
 Hamilton, .... 207 
 Moore, . . . .201, 790 
 Rousmanier, . . . 204, 235 
 
 Scott, 550 
 
 Watkins, . . . .559 
 
 Hunter v. Gibson 280 
 
 Hallett, . . .601, 605 
 Marlboro, . . .54, 131 
 
 Stingel 704 
 
 Huntley v. Huntley, .... 621 
 Hurst's Lessee V. McNeil, . . 325 
 
 Hurtt V. Fisher, . . . .701 
 
 Husband v. Davis 430 
 
 Huskinson v. Bridge, ... 93, 98 
 
 Huson V. Wallace, . . . 788, 789 
 
 Hussey, Ex parte, . . . 202, 279 
 
 Huston v. Moore, .... 163 
 
 Hutchings v. Smith, .... 599 
 
 Hutchins V. Hutchins, . . .819 
 
 Hutchinson v. Brown, . . 202, 2J5 
 
 Hutchinson, . . 126 
 
 Reed, . . . .762 
 
 Tindall, . 77, 214, 215 
 
 Hutton V. Duey, . . .621, 622 
 
 Weems, . . . 832, 835 
 
 Hynson y. Barton, . . 64, 776, 777 
 
 I. 
 
 Iddings V. Bruen, . . . 770, 786 
 
 Ide V. Ide, 99 
 
 Imlay v. Huntington, . . 458, 459, 613 
 
 Ins. Co. V. Grant, .... 55 
 
 Smith, . . . 444, 651 
 
 Inge V. Forrester 612 
 
 Ingersoll v. Cooper, . . 273, 387, 649 
 Inglis V. Sailor's Snug Harbor, . . 662 
 Ingraham v. Regan, .... 238 
 Wheeler, . . . 469 
 Ingram V. Kirkpalrick, . . . 112 
 Phillips, . . . 745, 748 
 low V. Hodges, 335 
 
XXVI 
 
 TABLE OF CASES IN AMERICAN NOTES. 
 
 Iredell v. Langston, . 
 Irvin V. Smith, . 
 Irving V. De Kay, 
 Irwin V. Harris, . 
 
 Keen, 
 
 Robertson, . 
 Isham V. Bennington Iron Co., 
 Ives V. Davenport, 
 Izard V. Izard, 
 
 PAGE 
 
 . 832 
 
 . 748 
 
 826, 830 
 
 . 789 
 
 . 477 
 
 . 237 
 
 . 748 
 
 . 701 
 
 . 72 
 
 71 
 
 612 
 
 . 125 
 
 . 746 
 
 . 99 
 
 . 685 
 
 . 688 
 
 744, 749 
 
 . 325 
 
 . 231 
 
 . 474 
 
 . 400 
 
 134, 137 
 
 326, 333 
 
 . 569 
 
 . 699 
 
 . 746 
 
 232, 748 
 
 . 698 
 
 136, 143 
 
 127, 358 
 
 . 325 
 
 . 358 
 
 . 380 
 
 Jackman v. Ringland, 
 Jackson v. Andrews, 
 
 Bull, 
 
 Burr, 
 
 Burtis, 
 
 Caldwell, 
 
 Gary, 
 
 Caswell, 
 
 Cornell, 
 
 Delancy, 
 
 Feller, 
 
 Fish, 
 
 Jackson, 
 
 Jansen, 
 
 Ketchara, 
 
 Leek, 
 
 Ligon, 
 
 Matsdorff, 
 
 Moore, 
 
 Myers, 
 
 Peirce, 
 
 Post, 
 
 Potter, 
 
 Robbins, 
 
 Seelye, 
 
 Sharp, 
 
 Sublitt, 
 
 Summerville, 
 Jacobs V. Locke, 
 Jacot V. Emett, 
 James v. James, . 
 Johnson, 
 Moray, 
 Jamison v. Brady, 
 
 V. Lindsay, 
 Jameson v. Shelby, 
 Smith, 
 January v. Poyntz, 
 Jaques v. Methodist Church, 
 
 Weeks, 
 Jasper v. Howard, 
 Jencks v. Alexander, 
 Jenison v. Graves, 
 
 Hapgood, 
 Jenkins v. Bodley, 
 
 Eldridge, 
 
 Pye, . 
 
 Walter, 
 Jenks' Lessee v. Backhouse, 
 Jennings v. Davis, 
 Jewett V. Palmer, 
 
 Woodward, 
 Johnson's Appeal, 
 Johnson v. Ball, . 
 
 Blackman, 
 Cunningham, 
 Dorsey, 
 Johnson, 
 
 187, 219, 434, 551, 772, 845 
 
 . 99 
 . 125 
 . 748 
 
 602, 605 
 
 . 756 
 
 . 243 
 
 . 532 
 
 . 669 
 
 . 357 
 
 357 
 
 59, 585, 610 
 
 . 806 
 
 . 532 
 
 . 334 
 
 533 
 
 618-9, 620 
 
 . 744 
 
 . 612 
 
 124, 137, 141 
 
 . 126 
 
 . 223 
 
 754, 757 
 . 208 
 
 211, 218 
 . 535 
 . 426 
 
 338, 796 
 . 231 
 
 475, 826 
 270, 274, 769 
 78,81 
 . 220 
 . 392 
 
 702, 704 
 
 Johnson v. Humphreys, 
 Lewis, 
 Richey, 
 Ronald, 
 Tucker, 
 Johnston v. Eason, 
 
 Gwathmey, 
 Lumb, 
 Newton, 
 Rowlands, 
 Joice V. Taylor, . 
 Jones, Matter of, 
 Jones V. Adams, 
 Jones' Appeal, . 
 Jones V. Ball, 
 
 Cole, . 
 Dawson, 
 Foxhall, 
 How, 
 Jones, . 
 Lewis, . 
 Loftin, . 
 Maggs, . 
 McKee, . 
 MofFet, . 
 Morrall,. 
 Sherrard, 
 Stockett, 
 Strong, . 
 Ward, . 
 Wing, 
 Whitbread, 
 Jopling V. Dooley, 
 Jordan v. Jordan, 
 Hunt, . 
 Joseph's Will, Re, 
 Joyce V. Gunnels, 
 
 De Moleyns 
 Judson V. Gibbons, 
 Julian V. Reynolds, 
 Juvenal v. Jackson, 
 Juzam v. Toulmin, 
 
 K. 
 
 281, 31 
 
 PAGE 
 . 372 
 . 767 
 . 767 
 . 71 
 . 798 
 . 692 
 . 751 
 . 620 
 
 528, 535 
 92, 94 
 . 201 
 3, 274, 282 
 . 207 
 
 433, 434 
 . 325 
 . 387 
 565, 829, 834 
 
 531,818 
 . 795 
 
 517, 633 
 . 521 
 . 702 
 
 515,519 
 . 208 
 . 319 
 . 531 
 . 566 
 1,793, 811 
 
 387 
 533 
 206 
 484 
 203 
 758 
 533 
 794 
 549 
 757 
 
 300, 306, 316, 321 
 222 
 231 
 202, 210, 238 
 
 Kane, Matter of, . . . . .578 
 V. Bloodgood, .... 372 
 
 Karrv.Karr 533 
 
 Kaufman v. Crawford, 521, 538, 568, 765 
 
 Kee V. Vosser, 620 
 
 Keim V.Taylor 392 
 
 Keisselbrock v. Livingston, . 235, 236 , 
 Kekewitch v. Manning, . 115, 119, 120 
 
 Keller v. Keller, 598 
 
 Nutz 245 
 
 Kellet V. Rathburn 532 
 
 Kellog V. Connor, . . . .391 
 
 Kelly V. Lank, 484 
 
 Keltner v. Keltner, . . . .206 
 Kemp V. M'Pherson, . . . .513 
 Kennedy's Appeal, .... 837 
 
 Kennedy v. Fury 387 
 
 Kennedy, . . 214,235 
 
 Strong, . . 64, 776, 777 
 
 Ware, . . . 114,653 
 
 Kenny v. Udall, 55, 588, 591, 593, 595, 598 
 
 Kent V. Plummer, . . . 749, 750 
 
 Kenton v. Cobb, 137 
 
 Kerlin v. Campbell 185 
 
 Kerr v. Day 243 
 
 Snead, 533 
 
TABLE OS CASES IN AMERICAN NOTES. 
 
 XXVll 
 
 
 PASE 
 
 Kerrs v. Swope, . 
 
 . 744, 748 
 
 Ketchum v. Ketchum, 
 
 . 806 
 
 Keyser v. Stanisfer, 
 
 . 680 
 
 Keysey's Case, . 
 
 . 493 
 
 Kidder v. Kidder, 
 
 . 127 
 
 Kidney v. Cousamaker, 
 
 . 485, 491 
 
 Kimball v. Morton, 
 
 . 72 
 
 Kimmell v. McRight, . 
 
 . 141 
 
 Kincaid's Trust, . 
 
 . 591, 593 
 
 King V. Cloud, . 
 
 . 392,790 
 
 Donnelly, 
 
 243, 2T0, 274, 319 
 
 Hill, 
 
 . 387 
 
 Mitchell, 
 
 163, 165, 167, 194 
 
 Mullin, . 
 
 . 847 
 
 Phillips, 
 
 . 304,315 
 
 Strong,.. 
 
 . 187 
 
 Tevis, . 
 
 . 744 
 
 WoodhuU, . 
 
 . 107, 187 
 
 Kinnard v. Kinnard, . 
 
 . 550, 558, 559 
 
 Kinsby v. Abbott, 
 
 . 129 
 
 Kintzinger's Est., 
 
 . 600 
 
 Kip V. Bank of New York, 64, 776, 777 
 
 778 
 
 Deniaton, 434 
 
 Kirby v. Schoonmaker, . . . 474 
 
 Taylor 772 
 
 Kirkman v. Booth, . . . 762, 839 
 
 Kirkpatriok's Trust, . . . 525 
 
 Kirkpatrick V. McDonald, 72, 77, 111, 115, 
 
 125, 126, 388 
 
 Klapp V. Shirk. . 471 
 
 Knight V. Boughton, ... 92, 94 
 Cawthorn, .. . . . 798 
 Knight, . . . .609 
 
 Leake 602 
 
 Loomis, .... 688 
 Majoribanke, . . 220, 786 
 Kniskern v. Lutheran Churches, 107, 680 
 Knott V. Cottee, 93, 94, 524, 531, 532, 537 
 KnoufFv. Thompson, . 136,141,749,752 
 " ■ " . 794 
 
 . 806 
 . 270 
 . 228 
 . 757 
 . 599 
 749, 750 
 598, 599 
 . 599 
 . 269 
 
 Knowles, Re, 
 Knox V. Picket, . 
 Knust, Ex parte, 
 Kottman v. Peyton, 
 Kramer v. Arthurs, 
 Kreider v. Boyer, 
 Krider v. Laffarty, 
 Krumbhaar v. Burt, 
 Krupp V. SchoU, 
 Kuhler v. Hoover, 
 
 L. 
 
 Lacy V. McMillan 206 
 
 Wilson, 231 
 
 Lady Hewley'a Charities, . . .679 
 Lamar v. Simpson, .... 66 
 L'Amourreux v. Van Rensselaer, 612, 626 
 Lancashire v. Lancashire, . . 320, 819 
 Lancaster V. Dolan, . . . 499,612 
 
 Landis v. Brant, 749 
 
 Langdon v. Horton, .... 52 
 Laprimaudaye v. Teissier, . . . 602 
 Larkins V. Rhodes, . . . .132 
 Larrowe v. Beane, . . . .757 
 
 Lasalle v. Barnett 749 
 
 Lassiter v. Dawson, . . . .588 
 Latimer V. Harrison, . . 305,311,533 
 Latourette v. Williams, . . 599, 601 
 Latrobe v. Tiernan, . . . 428, 433 
 Laurens v. Jenney, . . . 330, 334 
 
 Lawrence v. Bowles, 
 
 Dale, 
 Lay V. Princep, 
 Lea V. Wheeler, . 
 Leavens v. Butler, 
 Leavitt v. Wooster, 
 Leaycraft v. Hedden, 
 Leazure v. Hillegas, 
 Lechfield v. Baker, 
 Lee V. Huntoon, . 
 
 Hutchinson, 
 
 Randolph, 
 Leeds, Duke of, v. Lord Amherst 
 Lefort V. Delafiel,d, 
 Leiby v. Wolf, . 
 Leigh, Lord, V. Lord Ashburton, 
 Leigh V. Earl of Balcarres, 
 Leisenring v. Black, . 
 Legare v. Ash, . 
 Leggett V. Dubois, 
 Perkins, 
 Legg V. Legg, 
 Lemmond v. Peoples, 
 Leneve v. Leneve, 
 
 471 
 
 Le Prince v. Guillemott, 
 Lerton v. Kingston, 
 Letcher v. Letcher, 
 
 Schroeder, 
 Le Vaaseur v. Scratton, 
 Lewis v. Adams, 
 
 Bacon, . 
 
 Baird, . 
 
 Bradford, 
 
 Hillman, 
 
 Madison, 
 
 McLemore, 
 
 Mew, . 
 
 Starke, . 
 Liggett V. Wall, . 
 Lincoln v. Duke of N. Castle, 
 
 Windsor, . 
 Lindenberger v. Matlack, 
 Lindsay v. Harrison, . 
 Lindsay, . 
 Pleasants, 
 Lining v. Peyton, 
 Lingan v. Carroll, 
 
 Henderson, 
 Linton v. Boiy, . 
 Lippincott v. Barker, . 
 Lippincott v. Warder, 
 Liptrot v. Holmes, 
 Literary Fund v. Dawson, 
 Littlefield v. Smith, . 
 Livermore v. Aldrich, 
 Livingston v. Livingston, 
 Lloyd, Re, .. 
 Lloyd v. Carter, . 
 
 Hart, . 
 
 Inglis' Exr's, 
 
 Lloyd, . 
 
 Taylor, 
 Locke V. Armstrong, . 
 
 Lomax, 
 Lockhart y. Wyatt, . 
 Lockridge v. Foster,. . 
 Lockwood V. Stockholm, 
 Lodge v. Hamilton, 
 
 Simontown, . 
 Logan V. Deshay, 
 
 Simons, 
 
 PAGE 
 
 769, 823 
 . 206 
 . 798 
 . 605 
 . 319 
 . 513 
 . 613 
 . 60 
 . 562 
 . 79 
 . 389 
 
 243, 274 
 
 , . 549 
 
 . 246 
 
 . 751 
 
 . 695 
 
 705, 706 
 
 225, 789 
 
 . 209 
 
 57, 66, 67, 124, 129 
 
 327, 612 
 . 598 
 
 185, 822 
 230, 231, 744, 747, 748 
 
 749, 750 
 
 470,471, 473 
 
 . 798 
 
 125, 127, 132 
 
 . 52 
 
 . 599 
 
 . . .609 
 
 487 
 
 748 
 
 744 
 
 223, 224, 783, 784 
 
 . 744 
 
 200, 201 
 . 746 
 . 357 
 . 230 
 . 468 
 . 837 
 . 685 
 . 608 
 . 373 
 . 175 
 . 481 
 . 188 
 . 77 
 . 480 
 
 469, 470 
 . 550 
 . 356 
 . 183 
 . 651 
 
 125, 132 
 59, 407 
 . 273 
 . 131 
 . 571 
 76, 77 
 568 
 
 485, 
 311, 
 
 486, 
 423, 
 
 71 
 
 481, 
 
 690 
 239 
 546 
 . 470 
 . 201 
 . 605 
 598, 601 
 . 746 
 . 508 
 . 228 
 
xxvm 
 
 TABLE OF CASES IN AMERICAN NOTES. 
 
 PAGE 
 
 Lomax v. Pendleton, .... 532 
 London Gas Light Co. v. Spottiswoode, 
 
 Winter, 
 
 Railway Co. v, 
 Long V. Chadwick, . 
 Israel, . 
 Long, 
 Norcom, 
 Longstaff V. Rennison, 
 Longworth v. Goforth, 
 Lonsdale (Earl of) v. Beckett, 
 Loomis's Appeal, 
 Loomis V. McClintock, 
 Lord V. Lowry, . 
 Lorrillard v. Coster, . 
 Lorimer, Re, 
 
 Loscome v. Wintringham, 
 Lounsburry v. Purdy, 
 Love V. Gage, 
 Lovell V. Minott, 
 Loving V. Hunter, 
 Lowell's App., . 
 Lowman's App., 
 Lowry v. Coram. Bank, 
 
 Cox, . 
 
 Farmers' Bank, 
 Houston, 
 Lucas V. At wood. 
 
 Doe, . 
 
 Lockhart, 
 
 McBlair, 
 
 Price, . 
 Lucknow v. Brown, . 
 Luken's Appeal, 
 Lupton v. Lupton, 
 Lund V. Blanshard, . 
 Lyle V. Hatton, . 
 Lyman v. U. S. Ins. Co., 
 Lyne v. Guardian, 
 Lyon V. Marolay, 
 
 Rich, . 
 
 Richardson, . 
 Lyttle V. Pope, . 
 
 498, 
 
 54, 
 
 762 
 236 
 550 
 806 
 513 
 574 
 664 
 223 
 253 
 514 
 698 
 79 
 793 
 794 
 6.';9 
 379 
 172 
 
 520, 539, 540 
 . 458 
 660, 684 
 . 588 
 . 248 
 . 206 
 . 233 
 598, 605 
 . 473 
 . 688 
 92, 95 
 . 794 
 . 688 
 . 579 
 532, 535, 772 
 486, 493, 508 
 762 
 532 
 235 
 207 
 373 
 204 
 236 
 746 
 
 M. 
 
 McAleer v. McMuUin, . . .751 
 McAllister v. Montgomery, . . 129 
 McAuley v. Wilson, . . . 107, 656 
 McBee v. Loftis, . . . .231 
 
 McCall's Est 533 
 
 McCall V. Coover 243 
 
 Harrison, .... 247 
 Peachy, . . . .522 
 McCalmont v. Rankin, . . .. 235 
 McCamy v. Bee, . . . 216, 221 
 
 McCaskle v. Amarine, . . . 748 
 McChord's Trustees v. Booker, . 583 
 Mackreth v. Simmons, . . . 243 
 Macleod v. Annesley, . . . 522 
 
 Maclin v. Smith 574 
 
 McClosker v. Golden, . . .620 
 McClure v. Miller, . . 222, 228, 785 
 
 McColl v. Atherton 659 
 
 McOonnell v. Gibson, . . .783 
 
 Reed 748 
 
 McCord V. Ochiltree, . . .107 
 
 McCorken v. Bond 274 
 
 McCormack v. Melin, . . .210 
 McCoskor v. Brady, . . . 270, 327 
 McCoy v. Scott, 246 
 
 PAGE 
 
 McCraw v. Davis, . . . .214 
 McCrea v. Piermont, .... 758 
 McCreary v. Hamlin, . . . 703 
 
 McCrocklin v. McCrocklin, . . 621 
 Maccubbin v. Cromwell, 71, 88, 302, 305, 
 
 McCuUum v. Cox, 
 McDermott v. Lorillard, 
 MoDermott v. Strong. 
 -McDonald v. King, . 
 
 Sims, 
 
 Walker, 
 McDougall V. Peyton, 
 McDowall V. Goldsmith, 
 McDowell V. Caldwell, 
 
 Potter, . 
 McFait's Appeal, 
 McGachen v. Dew, 
 McGeher v. Gindrat, . 
 McGinn v. Shaeffer, . 
 McGlensey's App., 
 McGorven v. McGorven, 
 McGour V. Marshall, . 
 McGuire v. McGowen, 
 Ramsay, . 
 Mclntyre v. Hughes, . 
 
 Middleton. 
 
 317, 388, 434, 770 
 
 . 388 
 
 . 702 
 
 . 473 
 
 . 688 
 
 . 373 
 
 . 401 
 
 . 207 
 
 . 240 
 
 573, 832 
 
 600, 601 
 
 493, 497, 504 
 
 761, 763, 773, 800 
 
 . 749 
 
 . 770 
 
 619, 620 
 
 . 134 
 
 . 55 
 
 . 125 
 
 . 126 
 
 113, 114 
 
 790 
 
 School V. Zanesville Canal, 
 
 &c., 243 
 . 243 
 
 . 788 
 
 McKay v. Carrington, 
 McKennan v. Pry, 
 
 Phillips, 
 Mackie v. Mackie, 
 McKinley v. Irvine, . 
 McKinney v. Pinckard, 
 Mackinnon v. Stuart, 
 McKissick v. Pickle, 
 McKnight v. Taylor, 
 McLanahan v. Henderson, 
 McLanahan, 
 Wyatt, 
 McLean v. Barton, . 
 McRea v. Farrow, 
 McLemore v. Goode, 
 McMechan v. GrifBng, 
 McMeeken v. Edmonds, 
 McNair's App 
 
 639, 
 
 McNish v. Guerard, 273, 324, 327, 330, 332 
 
 McRaeny v. Johnston, 
 McRaven v. McGuire, 
 McWhorter v. Agnew, 
 Magawley's Trust, Re, 
 Magee v. Magee, 
 Magill V. Brown, 
 Magniac v. Thompson, 
 Magruder v. Peter, 
 Mahorner v. Harrison, 
 
 Hooe, 
 Mais, In re, 
 
 Majoribanks v. Hoveden, 
 Malin V. Malin, ""' ' 
 
 Malins v. Greenway, 
 Man V. Peay, 
 
 Warner, 
 Manahan v. Gibbons, 
 Manchester (Corp. of) v. Osburn, 
 Manes v. Durant, 
 Manly v. Hunt, 
 Mann's App., 
 Mann v. Betterly, 
 
 Butler, 
 Manning v. Manning, 
 
 243, 586, 620, 621 
 
 . 558 
 
 760, 797 
 
 . 211 
 
 . 112 
 
 198, 682 
 
 . 237 
 
 ', 788, 789 
 
 . 71 
 
 . 508 
 
 . 238 
 
 . 701 
 
 550, 565 
 
 . 747 
 
 . 473 
 
 . 434 
 
 387 
 
 748 
 
 693 
 
 794 
 
 134 
 
 60, 107, 183 
 
 73, 332 
 
 . 690 
 
 125, 134 
 
 . 186 
 
 275, 276 
 
 752, 753 
 
 131, 198, 243, 794. 797 
 
 829 
 . 317 
 . 479 
 . 434 
 . 93 
 . 228 
 . 380 
 . 478 
 
 210, 211 
 . 797 
 
 532, 814 
 
TABLE OF CASES IN AMERICAN NOTES. 
 
 XXIX 
 
 Manning v, Phillips, 
 Mannings v. Randolph, 
 Mansell's Est., . 
 Mansfield v. Mansfield, 
 Mant V. Leith, . 
 Manuf s and Mechanics' 
 
 83, 35' 
 
 Mapp V. Elcock, 
 Marigny v. Remy, 
 Marker v. Marker, 
 Marsh v. Marsh, 
 Pell, . 
 Wheeler, 
 Marshall v. Fish, 
 
 Sladden, 
 Stephens, 
 Martin v. Broadus, 
 Fry, . 
 Greer, 
 Margham, 
 Martin, 
 Poague* 
 Sale, 
 
 Sedgewick 
 Sherman, 
 Martzell v. Stauffer, 
 Mason v. Best, 
 
 Crosby, 
 Jones, 
 Mason, 
 White, 
 Williams, 
 Maseey v. McUwaine, 
 Masselin's Will, Re, 
 Massie v. Watts, 
 Mather v. Norton, 
 Mather v. Dragaud, 
 Matthews v. Ward, 
 Maupin v. Dulany, 
 Maxwell v. Henderson, 
 Kennedy, 
 Pittinger, 
 May's Heirs v. Frazee, 
 Mayberry v. Neely, 
 Mayfield v. Clifton, 
 Mayham v. Coombs, 
 Maywood v. Patterson, 
 Meacham v. Sterns, . 
 Meade v. Langdon's Heirs, 
 
 Merritt, 
 Meader v. Sorsby, 
 Meakings v. Cromwell, 
 Meals V. Brandon, 
 Mechanics' Bank, Matter of, 
 V. Kdwards, 
 Seton, 
 Meek v. Kettlewell, 
 Mekonkey's Appeal, 
 Mellish's Est.. . 
 Mense v. McClean, 
 Menuse v. Delair, 
 Mercein v. People, 
 Mercer v. Stark, 
 Meriam v. Harson, 
 Merrick's Est., 
 Merrit v. Lyon, 
 Merritt v. Farmers' Ins. Co, 
 Lamberts, 
 Loan Co., 
 Wilson, 
 Merriwether v. Booker, 
 Mesick v. Mesick, 
 
 PASE 
 
 . 806 
 . 565 
 . 503 
 . 621 
 522, 545, 614, 818 
 Bank v. Bank 
 
 ofPenna., 469 
 
 159, 163, 165, 166 
 
 . 472 
 
 . 549 
 
 493, 497 
 
 . 239 
 
 187, 685 
 
 324 
 
 262, 284, 695 
 
 612, 703 
 
 72, 
 
 . 206 
 . 493 
 126, 765 
 179, 656 
 589, 593 
 . 394 
 . 748 
 . 430 
 . 606 
 . 759 
 . 798 
 . 238 
 575, 726 
 7, 716, 725 
 62 
 214 
 230 
 794 
 53 
 500, 512, 513, 740 
 220, 788, 789, 835 
 62, 358, 381, 386 
 . 574 
 . 239 
 238, 240 
 . 215 
 689, 692 
 . 610 
 . 600 
 . 748 
 . 618 
 . 484 
 . 209 
 . 53 
 . 703 
 . 690 
 . 744 
 769, 271 
 . 357 
 . 247 
 . 120 
 94,96 
 . 773 
 745, 754 
 . 82 
 . 621 
 75, J 24 
 . 619 
 532, 767 
 . 620 
 . 400 
 . 224 
 . 404 
 . 474 
 . 602 
 . 434 
 
 Merriweather v. Herraw, 
 Messenger v. Clarke, 
 Methodist Church v. Jaqnes, 
 Rem' 
 Wood 
 Methold V. Turner, 
 Meux V. Bell, . 
 Meyer v. Montriou, 
 Simonson, 
 Michoud V. Girod, 
 Middleton v. Reay, 
 Milledge v. Lama, 
 Miles V. Bacon, . 
 Irwin, . 
 Mills V. Durnford, 
 Argall, . 
 Bunstead, 
 Miller's Est., 
 Miller v. Beverleys, 
 Cotton, 
 Cresson, 
 Gable, . 
 Haswell, 
 Lerch, . 
 M'Intyre, 
 Meetoh, 
 Miller, . 
 Pearce, 
 Pridden, 
 Milner v. Turner's Heirs, 
 Minott V. Prescott, 
 Minturn v. Seymour, 
 Minuse v. Cox, . 
 Mirehouse v. Scaife, 
 Mitchell V. Adams, 
 Bunch, 
 Green, 
 Price, 
 Reynolds, 
 Winston, 
 Mitchum v. Mitchum 
 Mockbee v. Gardner, 
 Moddewell v. Keever, 
 MofBt V. M'Donald, 
 Mohler's Appeal, 
 Molony, Re, 
 Molony v. Kennedy, 
 Mollan V. Griffith, 
 Molten V. Camrous, 
 Money, Re, 
 Monell V. Monell, 
 Monroe v. James, 
 Monro v. Taylor, 
 Montefiore, Ex parte, 
 Montelius v. Wright, . 
 Montgomery v. Derian, 
 
 Everleigh, 
 Hobson, 
 M'Elroy, 
 Milliken, 
 Moody's Lessee v. Vandyk 
 Moody V. Fulmer, 
 Moon V. Henderson, 
 Moore's,Appeal, 
 Moore v. Auditor, 
 Burnett, 
 Clay, . 
 Crofton, 
 Darton, 
 Ferguson, 
 Green, 
 Hilton, 
 
 FAQE 
 . 52 
 
 . 620 
 
 126, 586 
 
 ington, . 663 
 
 . 126 
 
 . 577 
 
 . 651 
 
 . 761, 762 
 
 552, 554, 556 
 
 220, 238, 239, 783, 784 
 
 . 262 
 
 . 559 
 
 224, 483, 807, 832 
 . 224 
 . 233 
 . 474 
 . 479 
 
 569, 600 
 532, 832, 835 
 . 234 
 . 744 
 . 680 
 . 514 
 . 60 
 . 240 
 86, 305. 490, 688, 699 
 . 621 
 . 208 
 . 260 
 . 56 
 
 501, 699 
 . 113 
 532, 703, 703, 818, 826 
 . 514 
 . 315 
 . 53 
 . 198 
 . 305 
 . 60 
 . 52 
 . 223 
 . 704 
 . 474 
 
 126, 765 
 . 513 
 
 282, 811 
 . 620 
 . 514 
 . 56 
 . 794 
 433, 434, 440 
 . 305 
 . 634 
 
 766, 779 
 . 112 
 . 64 
 . 618 
 . 240 
 . 508 
 . 689 
 
 220, 688 
 . 268 
 
 427, 762 
 . 851 
 . 748 
 . *386 
 
 231, 753 
 . 113 
 . 76 
 . 619 
 . 133 
 . 223 
 
XXX 
 
 TABLK OP CASES IN AMERICAN NOTES. 
 
 
 
 
 
 PAOE 
 
 Moore v. Jackson, 
 
 
 
 . 358 
 
 Jones, . 
 
 
 
 . 611 
 
 Lockett, 
 
 
 
 . 686 
 
 Moore, 
 
 
 , 
 
 568, 615 
 
 Prance, 
 
 
 , 
 
 111, 819 
 
 Reed, . 
 
 
 . 
 
 . 215 
 
 Shultz, 
 
 
 326 
 
 333, 693 
 
 Thornton, . 
 
 
 , 
 
 . 601 
 
 Whittle, . 
 
 
 \ 
 
 485. 486 
 
 Mordecai v. Parker, . 
 
 
 , 
 
 . 386 
 
 Morehouse v. Calvin, 
 
 
 
 . 515 
 
 Morey v. Forsyth, 
 
 
 
 . 796 
 
 Morgan v. Morgan, 519, 
 
 557, 
 
 558 
 
 562, 563 
 
 Morningstar v. Selby, 
 
 
 
 . 209 
 
 Morris Canal v. Emmett 
 
 
 , 
 
 . 202 
 
 Morris v. Morris, 
 
 
 
 . 549 
 
 Remington, 
 
 
 
 . 53 
 
 Wallace, . 
 
 
 , 
 
 . 539 
 
 Wright, . 
 
 
 , 
 
 . 522 
 
 Morrison v. M'Leod, . 
 
 
 , 
 
 213,215 
 
 Morrow v. Brenizer, . 
 
 
 , 
 
 . 175 
 
 Morse v. Crofoot, 
 
 
 , 
 
 . 477 
 
 Mortimer v. Ireland, . 
 
 
 
 261,401 
 
 Hartley, . 
 
 
 , 
 
 . 702 
 
 Moffat, . 
 
 
 
 . 550 
 
 Walts, . 
 
 
 632 
 
 635, 724 
 
 Morton v. Adams, 
 
 
 
 538, 832 
 
 Morton v. Barrett, 
 
 327 
 
 807 
 
 826, 832 
 
 Mortori v. Southgate, 
 
 
 
 . 716 
 
 Moses V. Murgatroyd, 
 
 
 
 
 65, 
 
 112, 
 
 425, 
 
 472, 806 
 
 Mosley v. Stell, . 
 
 
 
 . 58 
 
 Mott V. Clark, . 
 
 
 
 . 231 
 
 Harrington, . 
 
 
 
 . 224 
 
 Movan v. Hays, . 
 
 
 71, 77, 236 
 
 Muir V. Shenck, . 
 
 
 
 . 651 
 
 Trustees, 
 
 
 
 207, 238 
 
 Muldrew v. Fox, 
 
 
 
 688 
 
 MuUany v. Mullany, . 
 
 
 
 . 583 
 
 Mumford v. Murray, 
 
 
 
 
 434, 473, 
 
 532, 
 
 588, 
 
 596, 60e 
 
 Mumper's Appeal, 
 
 
 
 806, 807 
 
 Munch V. Cockerwell, 
 
 
 540, 
 
 545, 773 
 
 Mundy v. Vautier, 
 
 
 483 
 
 501, 748 
 
 Munlorffv. Muntorff, 
 
 
 
 , 
 
 . 806 
 
 Murdock's Case, 
 
 
 
 , 
 
 220, 786 
 
 Murdock v. Hughes, 
 
 
 
 
 372, 373 
 
 Murphy v. Grice, 
 
 
 
 , 
 
 . 587 
 
 Hubert, 
 
 
 
 
 54, 71 
 
 Moore, 
 
 
 
 
 . 387 
 
 Murray, Matter of 
 
 
 
 
 . 478 
 
 V. Ballou, 
 
 
 230 
 
 231 
 
 746, 752 
 
 De Rottenham, 
 
 
 . 835 
 
 Lord Elibank 
 
 
 588, 
 
 595, 606 
 
 Mechanics' Bank, 
 
 
 . 479 
 
 Feinour, . 
 
 520 
 
 521 
 
 544, 545 
 
 Finster, . 
 
 
 
 . 746 
 
 Lylburn, . 
 
 
 
 746, 765 
 
 Murrill v. Neil, . 
 
 
 
 . 474 
 
 Musselman v. Eshleman 
 
 
 
 . 223 
 
 Myers' Appeal, . 
 
 
 . 
 
 . 223 
 
 Myers v. Davies, 
 
 
 . 
 
 . 336 
 
 Myers, 
 
 
 , 
 
 789, 832 
 
 Perigal, 
 
 
 • 
 
 73, 664 
 
 N. 
 
 
 
 
 Naglee v. IngersoU, . 
 
 . 
 
 . 
 
 . 620 
 
 Nail V. Martin, . 
 
 , 
 
 
 . 844 
 
 Napier v. Elam, . 
 
 , 
 
 , 
 
 . 203 
 
 Howard, 
 
 
 . 
 
 . 
 
 593, 606 
 
 PAGE 
 
 Napier v. Napier, . . . 588, 789 
 Nedby v. Nedby, . . . 618, 619 
 Neilson v. Blight, . . . .472 
 
 Churchill 798 
 
 Nelson v. Allen 751 
 
 Callow 694 
 
 Dunscombe, . . . 835 
 
 Sims 745 
 
 Nettleton v. Stevenson, . . 564, 565 
 Neve V. Scott, . . . 458, 459, 460 
 Neville v. Demarest, .... 790 
 
 Fortescue 561 
 
 Newcastle V. Att.-Gen., . . 123,667 
 Newcorab v. St. Peter's Church, . 107 
 N. England Bank V.Lewis, . . 471 
 
 Newhall, Ex parte 58 
 
 v. Wheeler, . . .759 
 Newlin v. Freeman, .... 613 
 Newman v. Chapman, . . . 746 
 
 Jackson 702 
 
 James, .... 609 
 
 Meek 212 
 
 Montgomery, . . .387 
 Warner, . . .301, 717 
 Newell V. Morgan, . . . 125, 141 
 Newenham v. Pemberlon, . . . 583 
 New Parish v. Odiorne, . . . 331 
 Newport v. Cook, . . 576, 579, 580 
 
 Newson v. Buffalow 235 
 
 Newton V. Demaritt, .... 392 
 
 Swazey, . . .77, 243 
 N. Y. Ins. Co. V. Roulet, . . .758 
 
 Nicoll V. Mumford 472 
 
 Nicholl V. Walworth, . 338, 362, 386 
 
 Nicholson v. Leavitt, . . . . 484 
 Nichols V. Postelthwaite, . . . 508 
 Niemcewicz v. Gahn, .... 566 
 Nightingale v. Gouldbourn, 60, 66, 659 
 
 Niles v. Stevens 688 
 
 Nokes V. Stepping, .... 803 
 Norcoss V. Widgery, .... 748 
 Norman v. Cunningham, . 583, 761, 766 
 
 Norris v. Clymer 570 
 
 Johnson 568 
 
 Wright, . . . .764 
 N. A. Coal Co. v. Dyott, . . 566, 617 
 North V. Turner, .... 472 
 
 Valle, 175 
 
 Norton v. Leonard, . . . 324, 327 
 
 Norton, . . . 338, 583 
 
 Nott V. Foster, 299 
 
 Noyes v. Blakeman, . . 611,612,618 
 Nyce'sEst., . . 539,540,545,837 
 
 O. 
 
 Oakley, Matter of 
 Obert v.Bordine, 
 Ochiltree v. Wright, . 
 Ochleeton v. Heap, . 
 Oeslager v. Fisher, . 
 Ogden V. Astor, . 
 
 Kip, , 
 Oglander v. Oglander, 
 O'Hanlin v. Dew, 
 Ohio Ins. Co. v. Ledyard, 
 
 Ross, 
 Oldham v. Johns, 
 Oliver V. Bell, . 
 
 Piatt, 230, 372, 749, 75i 
 
 . 789 
 
 . 386 
 
 . 434 
 
 261, 401 
 
 . 789 
 
 . 204 
 
 . 279 
 
 . 302 
 
 . 62 
 
 . 748 
 
 748, 749 
 
 . 223 
 
 . 236 
 
 756, 762, 
 
 765, 766 
 
TABLE or CASES IN AMERICAN NOTES. 
 
 XXXI 
 
 Onslow v.Wallis, ; 
 Ontario Bank v. Mumford, 
 
 Root, 
 O'Reilly v. Alderson, . 
 Orford (Earl of) v. Earl of Albemarle, 499 
 Organ Meeting House v. Seaford, . 680 
 
 FAQE 
 
 . 158, 382 
 
 64, 776, 777 
 
 . 77 
 
 254, 262 
 
 78 
 . 699 
 . 380 
 . 790 
 . 470 
 597 
 210, 329, 688, 701 
 . 73 
 
 . 494, 521, 529 
 . 599 
 . 206 
 . 183 
 . 129 
 . 68 
 
 . 175, 490, 689 
 . 575 
 . 746 
 
 Orleans v. Chatham^, 
 Ormsby v. Tarascon, 
 Orth V. Jenning, . 
 Osborne v. Black, 
 Fuller, 
 Osborn v. Morgan, 
 Osgood V. Franklin, 
 Otisv. Sill, . 
 Ousely V. Anstruther, 
 Outcalt V. Van WinklO; 
 Outlaw V. Morris, 
 Overseers v. Taylor, 
 Overton v. Lacy, 
 Owen V. Bryant, 
 Cowans, 
 Owens V. Walker, 
 wings V. Meyers, 
 
 P. 
 
 PafFv. Kinney, 789 
 
 Page V. Adam, 740 
 
 Booth, . . . .240 
 
 Brown, 398 
 
 Page, 125, 131, 132, 134, 135, 136 
 Painter v. Henderson, . . . 220 
 Palmer v. Armstrong, . . . 493 
 
 Oakley 407 
 
 Parhamv. Erwin, .... 212 
 
 Parker v. Gilliam 233 
 
 Kelly, 388 
 
 May 667, 678 
 
 Parkhurst v. Van Cortland, . . 236 
 Parkist v. Alexander, . . 223, 748 
 
 Parks v. Parks 330, 333 
 
 Jackson, .... 746 
 Parrish v. Rhodes, .... 141 
 
 Parry, Re 794 
 
 Parsons v. Boyd, . . 128, 387, 425 
 
 Parsons, . . . 588, 598 
 
 Winslow, . 274, 521, 565, 769 
 
 Partridge v. Havens, . . . 125, 136 
 
 Pastel] V. Skirving 592 
 
 Pate V. McClure 274 
 
 Paterson v. Scott, 494, 495, 508, 510, 514 
 
 Devling, . . . 558, 559 
 
 Paull V. Choteau, . . . .126 
 
 Sq,nibb, .... 222, 784 
 
 Paup V. Mingo, 169 
 
 Payne v. Payne, 583 
 
 Sale 338, 350 
 
 Paxton V. Potts, .... 508, 510 
 Peabody v. Tarbell, . . . 125, 131 
 Peacock V. Black, . " . . . 237 
 
 Pearce v. McKeehan 131 
 
 Pearson v. Crosby, .... 4fi9 
 Daniel, .... 744 
 Jamison, .... 691 
 Rockhill, . . .112, 484 
 
 Pearl, Ex parte, 794 
 
 Peck v. Henderson, .... 685 
 
 Peck, . . , . .703 
 
 Peebles v. Reading, 133, 198,230,237, 304, 
 
 380 
 Pell v. Ball 814 
 
 PAGE 
 
 Penfield v. Sumner, .... 661 
 
 Pennell's App., .... 832, 835 
 
 Penny v. Briggs, .... 85 
 
 Davis, .... 310, 311 
 
 Penny, .... 762, 764 
 
 Turner, . . 90, 91, 106 
 
 Peppard V. Kelly 797 
 
 Peppercorn v. Weyman, . . 316, 319 
 
 Perkins v. Cartwell 373 
 
 Cranshaw 832 
 
 McGavock, . . 311,313 
 Perroneau v. Perroneau, . . . 544 
 Perry v. Boileau, .... 609 
 
 Craig 239, 240 
 
 Head, 125 
 
 Knott, 764 
 
 Pearson, .... 235 
 
 Peterson v. Grover 235 
 
 Peter v. Beverly, 334, 486, 685, 688, 690 
 Peters v. Goodrich, .... 748 
 
 Petrie v. Clark, 233 
 
 Petrikeny. Davis, . . . .112 
 
 Petty V. Boothe 610 
 
 Peyton v. Alcorn, .... 570 
 McDowell, . . . .807 
 
 Smith 532 
 
 Pbalen v. Clark, . . . 238, 239, 240 
 Pharis v. Leachman, . . . 762, 765 
 Phene v. Gilham, .... 247 
 Philbrooke v. Delano, . 77, 148, 149, 155 
 Phillips v.Belden, .... 240 
 Cramond, . . 67, 126, 130 
 
 Moore 215 
 
 Sargent, .... 557 
 Phillipson v. Gatly, 521, 526, 529, 760, 773, 
 
 797 
 Philpotts V. Philpotts, . . .130 
 Phoenix Bank v. Sullivan, . . . 476 
 Phyfe V. Warden, , . . .634 
 Piatt V. Oliver, 126,223, 695, 760, 797 
 
 Vatier 237, 238 
 
 Pickering v. Shot well, 60, 107, 183, 656, 660 
 
 Pickett V. Everett, . . . 598, 601 
 
 Johns, . . .621, 622 
 
 Pickup v. Atkinson 557 
 
 Piquet v. Swan, 59 
 
 Pierpont v. Graham, .... 476 
 
 Pierce v. Pierce, 127 
 
 McKeehan 765 
 
 Thompson, .... 600 
 
 Piesch's Est., Re 478 
 
 Pike v. Armistead 748 
 
 Bacon, 470 
 
 Collins, . . . 598, 600, 602 
 Pillow V. Shannon, . . . 231, 753 
 Pim V. Downing, .... 435 
 Pinckney v. Pinckney, . . . 493 
 
 Pingree V. Comstock 112 
 
 Pinnock v.'Clough, . . 133,134,135 
 Pinney v. Fellows, 71, 125, 126, 131, 134 
 
 Pinson v. Grey, 372 
 
 Pintard v. Martain, . . . .206 
 
 Pitcher v. Barrow 748 
 
 Pitt V. Petway, 785 
 
 Pitts V. Cottingham 200 
 
 Plank V. Schermerhorn, . 249, 480, 484 
 Planters' Bank v. Clarke, . . . 484 
 Pleasants v. Glascocke, ... 65 
 
 Plenty v. West 497 
 
 Plume V. Bone, 748 
 
 Plyer's Trust, 276 
 
 Plymouth v. Jackson 679 
 
xxxu 
 
 TABLE OF CASES IN AMERICAN NOTES. 
 
 
 
 PAGE 
 
 Poage V. Bell, . 
 
 . 387 
 
 Podmore v. Gunning, . 
 
 
 . 78 
 
 Poillon V. Martain, 
 
 
 . 225 
 
 Poinldexter v. Blackburn, 
 
 
 559, 598 
 
 Green, 
 
 
 . 486 
 
 Polkv. Gallant, . 
 
 
 . 757 
 
 Pooley V. Budd. . 
 
 
 . 230 
 
 Poor V. Hazleton, 
 
 
 598, 599 
 
 Pope V. Elliott, . 
 
 
 . 568 
 
 Jackson, 
 
 
 . 570 
 
 Portarlington v. Sorelby, 
 
 
 . 52 
 
 Porter v. Bank of Rutland, 
 
 72,' 73, 83, 84, 
 
 
 248, 380, 586 
 
 Porter v. Cole, . 
 
 . 748 
 
 Doby, . 
 
 . 327, 458 
 
 Morris, . 
 
 . 388 
 
 Watts, . 
 
 . 811 
 
 Powell V. Manufact. Co., 
 
 . 126, 127 
 
 Marett, 
 
 . 169, 383 
 
 Murray, . 25 
 
 0, 237, 240, 786 
 
 Powell, 
 
 . 125 
 
 Posey V. Cook, . 
 
 . 327 
 
 Potts, Ex pane, . 
 
 . 574 
 
 V. Clegg, . 
 Potter V. Gardner, 
 
 . 246 
 
 . 481 
 
 Pratt V. Adams, . 
 
 . 475, 477 
 
 Flamer, . 
 
 . 68 
 
 Northam, 
 
 . 238, 479 
 
 Taliaferro, . 
 
 . 175 
 
 Thornton, 
 
 65, 112, 788 
 
 Prendergrast v. Prendergrast, 91, 553, 557 
 
 558, 560, 561, 710, 711, 713, 716 
 
 Presb. Cong^ v. Johnston, . . 387, 680 
 
 Prescott V. Tyler 62 
 
 Preston v. Melville 52 
 
 Whitcomb, . . .235 
 Prevost V. Gratz, 79, 239, 372, 483, 773, 
 
 789 
 
 Prew V. Walton, 
 
 
 
 
 126 
 
 Price V. Anderson, 
 
 
 551 
 
 552 
 
 Berrington, 
 
 56, 213 
 
 214 
 
 Lovett, . 
 
 
 
 54 
 
 McDonald, . 747, 
 
 749, 750 
 
 751 
 
 Methodist Church, 
 
 654, 674 
 
 682 
 
 Pollard, . 
 
 
 
 776 
 
 White, . 
 
 
 
 767, 
 
 746 
 
 Prince v. Logan, 
 
 
 
 
 573 
 
 Pringle v. Allen, 
 Pritchell v. Murray, . 
 
 
 
 
 550 
 
 
 
 
 478 
 
 Proddy v. Williams, . 
 
 
 
 
 750 
 
 Proudley v. Fielden, . 
 
 
 
 
 620 
 
 Pugh, Ex parte, . 
 
 
 
 593, 
 
 594 
 
 V. Bell, . 
 
 
 
 230, 
 
 786 
 
 Currie, 
 
 
 
 126, 
 
 129 
 
 Purdew v. Jackson, . 
 
 
 
 
 599 
 
 Pusey V. Clemson, 
 
 
 
 .' 
 
 244 
 
 Putnam Free School v. Fishei 
 
 1 
 
 319, 
 
 500, 
 
 
 
 688, 
 
 690 
 
 Pyrom v. Mood, . 
 
 
 
 326, 
 
 336 
 
 Quackenbush v. Leonard, 127, 701, 788 
 Quarles v. Lacy, . . . 692, 704 
 Quennell v. Turner 495 
 
 PAGE 
 
 RadclifTe v. Rowley, . . . .238 
 
 Rahn v. McElrath 483 
 
 Rainsford v. Rainsford, . . 578, 767 
 Ralston V. Talfair, . . 162,171,814 
 Ramsey v. Marsh, 324, 325, 326, 329, 330, 
 
 333 
 
 . 129 
 
 . 749 
 
 . 223 
 
 532, 533 
 
 . 236 
 
 . 621 
 
 134, 149, 155 
 
 . 470 
 
 . 126 
 
 . 233 
 
 621, 622 
 
 112, 113, 269, 304, 311 
 
 584, 
 
 Randall v. Phillips, . 
 Silverthorn, 
 Rankin v. Porter, 
 Rapalje v. Nosworlh, . 
 Ratcliffe V. Ellison, . 
 
 Huntly, 
 Rathburn v. Rathburn, 
 Ravisies v. Ralston, . 
 Raybold v. Raybold, . 
 Rayner v. Pearsall, 
 Read v. Beazley, 
 
 Robinson, 
 Reade v. Dickey, 
 Reader v. Barr, . 
 Rearich v. Swineheart, 
 Redheimer v. Pyron, . 
 Redwood v. Reddick, . 
 Reed v. Fitch, . 
 Johnson, 
 Lamar, . 
 Marble, . 
 Rees V. Waters, . 
 Williams, 
 Reese v. Allen, . 
 Reeves v. Brymer, 
 Reformed Dutch Ch. v. Veeder, 
 Reg. v. Darlinglon School, 
 
 Dean &c., of Rochester, 
 Richards v. Jones, 
 Rennie v. Ritchie, 
 Rendlesham v. Meux, 
 Reppy V. Gantt, . 
 Revel v. Revel, . 
 Reynolds v. Bank of Virginia, 
 
 Stark County, 
 Rham v. North, . 
 Rhinelander v. Barrow, 
 Rice V. Burnett, 
 Catlin, 
 Peet, 
 Tonnele, 
 Richards (Doe dem.) v. Le 
 Richardson v. Blight, 
 Jenkins, 
 Jones, . 
 Richardson, . 
 Thompson, . 
 Richmond- V. Vanhook, 
 Richwine v. Keim, 
 Rider v. Mason, . 
 Ridgely v. Johnson, 
 Rigler v. Cloud, . 
 Ring V. Coun, 
 Ringgold V. Ringgold, 
 
 wis. 
 
 230 
 . 248 
 . 236 
 . 481 
 47, 762 
 . 126 
 . 479 
 . 612 
 . 652 
 
 587, 588 
 . 529 
 . 387 
 . 579 
 . 324 
 . 678 
 . 669 
 . 240 
 . 614 
 . 699 
 
 213, 214 
 . 598 
 . 473 
 . 57 
 . 223 
 . 240 
 79, 326, 332, 335 
 . 471 
 . 56 
 
 577, 579 
 . 123 
 
 428, 
 
 206 
 760 
 220 
 169 
 236 
 186 
 598 
 568 
 429 
 
 R. 
 
 Rackham v. Siddall, 
 
 246, 344, 404 
 
 Ringgold v. Wilmer, . 
 Ripple v. Ripple, 
 Robbins v. Robbins, . 
 Robarts v. Wortham, . 
 Robeson v. Harwell, , 
 Roberts v. Brooms, . 
 Roberts, Ex parte, 
 Robertson v. Collier, . 
 
 Grimes, . 
 
 Maclin, . 
 
 McGeoch 
 
 583, 586 
 . 54 
 434, 532, 538, 695, 
 701, 771 
 . 532 
 . 508 
 533 
 490, 493, 497 
 . 236 
 . 765 
 . 267, 275 
 . 558, 559 
 305, 688, 690 
 . 133 
 . 300 
 
TABLE OP CASES IN AMERICAN NOTES. 
 
 XXXIU 
 
 Robertson v. Robertson, 
 Siblett, . 
 Wendell, 
 Robins v. Embry, 
 Robinson v. Codman, 
 Geldard, 
 Howell, 
 King, 
 Maud, 
 Pett, 
 Robinson, 
 
 Townshend, 
 Robinson's Trust, Re 
 Robinson v. Woelpper, 
 Rochford v. Haokman, 
 Rochfort V. Battersby, 
 Rochon V. Lecatt, 
 Roden v. Murphy, 
 Rogers v. Acaster, 
 
 Bumpay, 
 
 Dill, . 
 
 Fales, . 
 
 Ludlow, 
 
 Murray, 
 
 Patterson 
 
 Rogers, 
 
 Ross, . 
 Vail, . 
 Ronald v. Buckley, . 
 Roney v. Stitz, . 
 Roosevelt v. Ellithorp, 
 Fulton, . 
 Mark, . 
 Rorer v. O'Brien, 
 Roseboona v. Mosher, 
 Ross's Trust, Re, 
 Ross V. Barclay, . 
 Duncan, . 
 Gill, . . . 
 Ross, 
 Vertner, . 
 Wharton, 
 Rosslyn's (Lady) Trust, 
 Routh V. Hutchinson, . 
 Row V. Dawson, . 
 Rowev. Rowe, . 
 Rowell V. Freese, 
 Rowland v. Best, 
 
 Morgan, . 
 Witnerden, 
 Rowley v. Adams, 
 Rowton V. Rowton, . 
 Rucker v. Abell, 
 Rudisell v. Watson, . 
 Rumph V. Abefcrombie, 
 Runnells v. Jackson, . 
 Runyan v. Coster's lessee 
 Rush's Estate, , 
 Russell, Trust, Re, . 
 Russell V. Allen, 
 
 Clark's Executors, 
 Clowes, 
 Lacker, 
 Lode, . 
 Ex parte, . 
 Ruston V. Ruston, 
 Rutherford v. Green, . 
 Rutledge, Ex parte, . 
 
 V. Smith, 
 Ryall V. Rowles, 
 
 PAGE 
 
 . 198 
 . 112 
 818, 821 
 249, 469, 470, 484 
 . 583 
 . 666 
 . 72 
 . 229 
 52, 388 
 . 839 
 522, 526, 529, 530, 
 531, 555 
 . 518 
 . 281 
 . 599 
 . 567 
 . 59 
 . 583 
 388, 651 
 . 597 
 . 601 
 570, 572 
 . 620 
 330, 332, 612 
 . 134 
 . 568 
 222, 477, 479, 550, 559, 
 621, 745, 818 
 
 Ryder, Matter of. 
 
 PASE 
 . 576 
 
 793, 830 
 
 470 
 
 569 
 
 703 
 
 805 
 
 201 
 
 479 
 
 584, 588 
 
 305, 316, 699 
 
 615, 794, 830 
 
 688, 689 
 
 . 65 
 
 . 569 
 
 770, 803 
 
 . 236 
 
 . 600 
 
 . 563 
 
 . 563 
 
 54, 649, 651, 652 
 
 619 
 
 . 124 
 532 
 466, 467, 468, 790 
 . 530 
 . 277 
 . 77 
 . 141 
 . 610 
 211, 214 
 . 131 
 . 60 
 . 523 
 . 274 
 . 126 
 . 247 
 . 171 
 . 473 
 . 126 
 . 277 
 493, 497 
 . 243 
 . 566 
 71, 78 
 . 335 
 C 
 
 Saeger v. Wilson, . . . .789 
 Sailor v. Hertzog, .... 750 
 St. John, (Lord) v. Houghton, . . 502 
 St. John's Hospital, Re, . . .669 
 Salisbury, Matter of, . . . 570, 571 
 
 Salisbury v. Bigelow 693 
 
 Salmon v. Clagett, . . . .757 
 
 Green 798 
 
 Salomons v. Laing, t . . . 762 
 Saltmarsh v. Beene, . . . 222, 223 
 
 Sanders v. Rodway 621 
 
 Sanderson v. White, . . .670 
 
 Sandford v. Mehean, ... 55 
 
 Sands v. Champlin, .... 486 
 Saterthwaite v. Emley, ... 72 
 Saurez v. Pampelly, ... 82 
 
 Sawyer v. Baldwin, . . . 592 
 
 Saxon V. Barksdale, . . .233 
 
 Say V. Barnes, .... 772 
 
 Sayre v. Flournoy, . . . 598, 599 
 Townshend, . . . 127 
 
 Schenck v. EUingwood, . . 703, 794 
 Schermerhorne V. Schermerhorne,500, 501, 
 
 518 
 
 Schieffelin v. Stewart, . . 532, 533 
 
 Schley v. Jones, .... 335 
 
 Lyons, .... 387 
 
 School Directors v. Dunkelsburger, . 387 
 
 Schrader v. Decker 55 
 
 Schuyler v. Hoyle, . . . 598, 601 
 
 Schutt V. Large, . . . .231 
 
 Schwartz Estate, . . . 246, 685 
 
 V. Wendell, . . .785 
 
 Scott's Estate 807, 826 
 
 Scott V. Freeland, . 219, 220, 223, 788 
 
 Gallagher, . . . .749 
 
 Haddock, . . . .774 
 
 Jamea, .... 602 
 
 McCuUough, '. . .751 
 
 Pashett, . . . .593 
 
 Tyler, . . . 727, 729 
 
 Scroggins v. McDougald, . . 220, 750 
 
 Scudder V. VanAmburgh, . 746,753 
 
 Searing v. Searing, ■ . . . 598, 601 
 
 Sears v. Dillingham, .... 304 
 
 Lewis, .... 485 
 
 Seaving v. BrinckerhofT, . . . 470 
 
 SelHck V. French 767 
 
 Semple, Re 112 
 
 Sergeant v. IngersoU, . . 232, 757 
 
 Sewall V. Gliddon 123 
 
 Sewell V. Baxter 134 
 
 Denny, .... 564 
 Sexton V. Wheaton, . . . 122, 755 
 
 Seymour V. Bull 695. 
 
 Delancy, .... 210 
 Shaeffer's Appeal, . . 163,191,195 
 Shaeffer V. Slade, . . . 206,211 
 Sharp V. Pratt, . . . .688 
 
 Sharpless v. Welsh, . . . .651 
 Sharpsteen v. Tillou, . . . .699 
 Sharp's Trustees, Re, ... 794 
 Shattuck V. Cassiday, ... 53 
 Hexman, . . . 484 
 
 Shaw V. Cameron 268 
 
 Mitchell, . . . 588, 599 
 
XXXIV 
 
 TABLE OF CASES IN AMERICAN NOTES. 
 
 Shaw V. Sessaman, 
 Shearin v. Eaton, 
 Sheeh/v. Lord Muskarry, 
 Shelton v. Homer, 
 Shephard v. Turpin, . 
 Shepherd v. McEver, . 
 Sheppard v. Sheppard, 
 Stark, . 
 Sherman v. Burnham, 
 Sherwood v. Smith, . 
 Shipp V. Bowman, 
 Shirley v. Shirley, 
 Shirras v. Caig, 
 Shiveley v. Jones, 
 Shoemaker v. Smith, . 
 Walker, 
 Short V. Unangst, 
 Shotwell V. Mott, 
 Shoulbred v. Drayton, 
 Show V. Conway, 
 Shrewsbury Charities, Re, 
 
 Grammar School, Re, 
 Shultz V. Moore, 
 Shuman v. Reigart, . 
 Sidle V. Walter, 
 Sidmouth v. Sidmouth 
 Sigourney v. Munn, . 
 Silk V. Prime, 
 Sill V. Ketchum, 
 
 McKnight, 
 Silverthorn v. McKinster, 222, 690, 699, 702 
 
 PA&E 
 
 599 
 
 373 
 
 705 
 
 220, 334, 688 
 
 373 
 
 59, 65, 112, 310 
 
 . 586 
 
 . 533 
 
 618, 796 
 
 . 579 
 
 . 613 
 
 59, 585, 608, 620 
 
 . 757 
 
 . 747 
 
 . 127 
 
 . 583 
 
 425, 426 
 
 107, 183 
 
 . 691 
 
 . 806 
 
 669 
 
 669 
 
 748 
 
 598 
 
 . 131 
 
 . 127 
 
 129, 749 
 
 , 504, 505 
 
 796 
 
 269 
 
 393 
 
 493 
 
 Simes v. Eyre, 
 Simmons v. Drury, 
 Simmonds v. Palles, . 
 Simpson v. Simpson, . 
 
 Graves, 
 Sims V. Richardson, . 
 Sinclair v. Jackson, 358, 428, 429^ 
 
 Siter's Case, 
 
 762 
 
 . 508 
 
 111, 112 
 
 . 621 
 
 . 72 
 
 . 231 
 
 691,692, 
 
 706, 707 
 
 598, 599, 600, 601, 602 
 
 Siter V. McLanahan, 
 
 Skarffv. Soulby, 
 
 Skilton V. Webster, 
 
 Skinner's App., 
 
 Skinner v. Skinner, 
 
 Skipwith's Ex'r. v. Cunningham, 
 
 Slaymaker v. The Bank, . 
 
 Sledge's Adm'r. v. Clopton 
 
 Slifer V. Beates, 
 
 Sloane v. Cadogan, 
 
 Slocum V. Marshall, 
 
 Slooum, 
 Smilie v. Biffle, . 
 Smiley v. Dixun, 
 Smith, Re, . 
 
 V. Babcock, 
 
 Bell, . 
 
 Burnham, 
 
 Calloway, 
 
 Grove, . 
 
 Hurst, . 
 
 Kane, . 
 
 Keating, 
 
 McCreTary, 
 
 Oliver, . 
 
 Porter, . 
 
 Ramsay, 
 
 Richards, 
 
 Sackett, 
 
 Shackleford, 
 
 Smith, . 
 
 Starr, . 
 
 602 
 . 122 
 . 680 
 . 599 
 . 373 
 . 470 
 . 599 
 . 586 
 . Ill 
 . 120 
 75, 218 
 . 699 
 376, 377, 379, 581^ 
 . 639 
 . 280 
 . 201 
 99 
 
 126, 131 
 . 373 
 . 798 
 
 111, 112 
 . 73 
 . 112 
 75, 689 
 . 664 
 . 479 
 . 126 
 200, 201, 202 
 
 125, 131 
 . 319 
 
 540, 770 
 . 608 
 
 175: 
 
 434, 
 
 485, 
 
 Smith V. Stern, . 
 
 Warde, 
 
 Wiseman, 
 
 Wyckoff, 
 
 Young, 
 
 Zaner, . 
 Smyth's Settlement, Re, 
 Spalding v. Hedges, . 
 Snelgrove v. Snelgrove, 
 Snelling v. Utterback, 
 Snelson v. Franklin, . 
 Snowden v. Dunlevy, 
 Snowhill V. Snowhill, 
 Snyder v. Snyder, 
 
 Sponable, . 
 Solicitor- Gen. v. Bath, 
 Solms V. McCullough, 
 Somes V. Skinner, 
 Souverbye v. Arden, . 
 Southard v. Cushing, . 
 Sparhawk v. Allen, . 
 Buell, . 
 Sparling v. Parker, 
 Spear v. Grant, . 
 
 Scoville, 
 
 Tinkham, 
 
 Tucker, 
 Speiglemyer v. Crawford, 
 Spence, Re, 
 Spence v. Daren, 
 
 Whittaker, . 
 Spencer v. Hawkins, . 
 Spencer, . 
 Sperry's Est., 
 Spofford V. Weston, . 
 Spotswood V. Pendleton, 
 Sprague v. Woods, 
 Squire v. Harder, 
 Stagg V. Beekman, 
 Stall V. Macalesler, . 
 Stallings v. Freeman, 
 Stanes v. Parker, 
 Stanley's App., . 
 Stanley v. Brannon, . 
 Stanwood v. Stanv/ood, 
 Staple's Settlement, Re, 
 Stapleton v. LongstafF, 
 Stapilton v. Stapilton, 
 Starke v. Starke, 
 Starr v. Ellis, 
 Siarr, 
 State Bank v. Smith, 
 State V. Bryan, . 
 Gerard, . 
 Guilford, 
 Holloway, 
 Hurst, 
 McGowan, 
 State of Maryland v. Bank of Maryland" 
 
 57 
 
 Stead V. Clay, 520 
 
 Stearns v. Hubbard, . . . . ^^ 
 Steele V. Kimble, . . ] 237 
 
 Steel V. Steel, . . . ' 586, 610 
 Steere v. Steere, 75, 77, 78, 82, 134, 144, 
 
 149 
 Stell'a Appeal, . . . 433, 434^ 435 
 
 btephens v. Ld. Newborough, . 826, 827 
 Sterrett's Appeal, . . 433, 434 825 
 
 Stevens Y. Kly, jjy 
 
 Gregg, . ■ ■. 493 508 
 Stevenson v. Brown, . . . .588 
 
 PASE 
 
 . 380 
 
 115, 118 
 
 . 189 
 
 . 514 
 
 59, 299 
 
 . 64 
 
 . 277 
 
 . 202 
 
 231, 753, 754 
 
 . 132 
 
 . 203 
 
 . 56 
 
 570, 598 
 
 . 610 
 
 . 232 
 
 . 669 
 
 . 748 
 
 . 219 
 
 76, 152 
 
 . 790 
 
 . 789 
 
 572, 578 
 
 . 664 
 
 . 245 
 
 . 53 
 
 . 532 
 
 . 550 
 
 202 
 
 . 794 
 
 . 200 
 
 . 202 
 
 . 480 
 
 823 
 
 504 
 
 . 748 
 
 . 570 
 
 . 324 
 
 . 155 
 
 . 568 
 
 . 704 
 
 . 222 
 
 811,840 
 
 535, 772 
 
 136, 142 
 
 . 598 
 
 . 794 
 
 . 570 
 
 115, 204 
 
 373, 601 
 
 . 357 
 
 71, 77, 124 
 
 . 274 
 
 . 57 
 
 183, 662 
 
 433, 434 
 
 201, 238 
 
 . 338 
 
 167, 183 
 
 82 
 
TABL«B OF CASES IN AMERICAN NOTES. 
 
 XXXV 
 
 
 PAGE 
 
 
 PAGE 
 
 Stewart's App., . . , . 
 
 . 601 
 
 Tarquand v. Knight, . 
 
 . 814,822 
 
 Steward v. Brown, 
 
 125, 427 
 
 Tarver v. Tarver, 
 
 . 207 
 
 Stewart v. Stewart, . 
 
 . 620 
 
 Tate V. Connor, . 
 
 . 373 
 
 McMinn, . 
 
 . 832 
 
 Taverner v. Robinson, 
 
 . 844 
 
 Fetters, 
 
 . 425 
 
 Taylor v. Adams, 
 
 . 702 
 
 Stiers v. Stiers 
 
 . 703 
 
 Anderson, . 
 
 . 592 
 
 Stilwell V. McNeeley, 
 
 . 794 
 
 Benham, . 67, 
 
 400,433,685 
 
 Stocks V. Dobson, 
 
 651, 652 
 
 Galloway, . 
 
 319, 499, 695 
 
 Stockton V. Ford, 
 
 . 225 
 
 Haggarth, . 
 
 158, 169, 190 
 
 Stoddard v. Allen, 
 
 475, 476 
 
 James, 
 
 . 113, 136 
 
 Stokes V. Holden, 
 
 . 67 
 
 King, . 
 
 . 387 
 
 McKibbin, . 
 
 . 583 
 
 Lucas, 
 
 . 187 
 
 Stone V. Griffin 
 
 . 243 
 
 Moore, 
 
 . 392 
 
 Hinton, . 
 
 . 702 
 
 Morris, 
 
 . 688,689 
 
 Massey, 
 
 . 189 
 
 Roberts, 
 
 . 433 
 
 Rowton, 
 
 . 259 
 
 Taylor, 135, 143, 
 
 196, 217, 218 
 
 Theed 
 
 . 633 
 
 Teakle v. Bailey, 
 
 . 223 
 
 Wilkison, 
 
 . 702 
 
 Telford v. Barney, 
 
 . 692 
 
 Stoner v. Yealy, 
 
 . 387 
 
 Temple v. Hawley, 
 
 . 55 
 
 Stoolfoss V. Jenkins, . 
 
 . 198,774 
 
 Ten Eyck v. Simpson, 
 
 . 243 
 
 Stout V. Higbee, 
 
 . 473 
 
 Tenant v. Stoney, 
 
 142, 476, 610 
 
 Levan, . 
 
 . 599 
 
 Tenison v. Sweeney, . 
 
 . 746 
 
 Stovel V. Northern Bank, . 
 
 . 236 
 
 Terry v. Brunson, 
 
 . 601 
 
 Strathmore v. Bowes, 
 
 . 238 
 
 Hopkins, 
 
 . 228 
 
 Striker v. Mott, . 
 
 . 327 
 
 Tevis V. Richardson, . 
 
 . 592 
 
 Strimpfler v. Roberts, . 12 
 
 4, 126, 373 
 
 Thatcher v. Omans, . 
 
 . 325 
 
 Strong V. Carrier, 
 
 . 470 
 
 Thomas v. Ellmaker, . 
 
 . 183, 661 
 
 Gregory, 
 
 . 610 
 
 Grand Gulf Bank, 
 
 . 748 
 
 Smith, . 
 
 . 599 
 
 Higham, . 
 
 . 281 
 
 Willis, . 
 
 . 311,789 
 
 Jenks, 112, 469, 
 
 470, 483, 484 
 
 Stroughill V. Anstey, 480, 481, 4 
 
 99,509,512 
 
 Kelsoe, . 
 
 . 598 
 
 
 513, 740 
 
 Selby, 
 
 . 798 
 
 Stuart V. Kissam, 220, 609, 61C 
 
 ), 618, 785 
 
 Scraggs, . 
 
 . 435 
 
 
 789 
 
 Sheppard, . 
 
 214, 584, 587 
 
 Stump V. Gaby, . . 198, 25 
 
 10, 239, 771 
 
 Townsend, 
 
 . 704 
 
 Sturgis V. Champneys, 
 
 . 583, 592 
 
 Walker, . 
 
 . 125 
 
 Stuyvesant, Matter of. 
 
 . 281 
 
 Thompson v. Blair, . 
 
 . 240 
 
 Hall, . 
 
 . 245 
 
 Ellsworth, . 
 
 . 600 
 
 Shore, . 
 
 . 746 
 
 Ford, . 
 
 . 387 
 
 Styer v. Freas, . 
 
 . 698 
 
 Jackson, 
 
 . 235 
 
 Suarey v. Pumpelly, . 
 
 . 270, 274 
 
 McCann, 
 
 . 201 
 
 Suir Island Charity, Re, . 
 
 669, 674 
 
 McDonaldr . 
 
 . 394, 395 
 
 Sumner v. Rhodes, 
 
 . 748 
 
 McKissick, 
 
 96, 99 
 
 Williams, . 
 
 . 397 
 
 Meek, . 
 
 . 316 
 
 Sutherland V. Cooke, . 
 
 . 538 
 
 Thompson, 71, 
 
 136, 138, 274 
 
 Sutton V. Baldwin, 
 
 . 612 
 
 
 769 
 
 Cradock, 
 
 . 550 
 
 Wheatly, 
 
 . 220 
 
 Sutton, 
 
 ."704 
 
 Thorn v. Coles, . 
 
 . 175, 176 
 
 Suydam v. Martin, 
 
 . 230 
 
 Thornburg v. Macauley, 
 
 . 299: 
 
 Swan V. Ligan, . 
 
 . 550, 799 
 
 Thornton V. Ellis, 
 
 . 561 
 
 Swazey v. Little, 
 
 . 513 
 
 Gaillard, 
 
 . 685 
 
 Swearingen v. Slicer, . 
 
 . 469 
 
 Henry, . 
 
 . 77 
 
 Sweet V. Jaoocks, 
 
 . 223 
 
 Winston, 
 
 317 
 
 Sweigart v. Berk's Adm., . 
 
 . 566, 698 
 
 Thorp V. McCuUum, . 
 
 . 222,785 
 
 Swift V. Stebbins, 
 
 . 795 
 
 Thorp, Re 
 
 . 532 
 
 Switzer v. Skills, 
 
 . 77 
 
 Thurston V. Dickinson, 
 
 . 565 
 
 Swoyer's App 4 
 
 84, 540,701 
 
 Tiernan v. Roland, 
 
 . 243,423 
 
 
 
 Tilghman's Est., 
 
 . 175 
 
 
 
 Timbers V. Katz, 
 
 . 601 
 
 
 
 Titley v. Wolstenholme. 
 
 . 400 
 
 T. 
 
 
 Todd V. Buckman, 
 
 . 483 
 
 
 
 Moore, . 
 
 . 223 
 
 Tabb V. Baird, . 
 
 . 326 
 
 Sterrett, 
 
 . 796 
 
 Taggart v. Talcott, . 
 
 . 620 
 
 Wilson, 
 
 . 839, 840 
 
 Trinier v. Clark, . . 68 
 
 3, 688, 689 
 
 Toft V. Stephenson, . 
 
 . 502, 736 
 
 Talbot V. Cook, . 
 
 . 651 
 
 Tolar V. Tolar, . 
 
 . 152 
 
 Taliaferro v. Taliaferro, 
 
 125, 133 
 
 ToUett V. Armstrong, 
 
 . 608 
 
 Talley v. Starke, 
 
 . 570 
 
 Tolson V. Tolson, 
 
 . 102 
 
 Tallman v. Wood, . 
 
 . 465 
 
 Tomar v. Dunlap, 
 
 . 446 
 
 Tardy v. Morgan, 
 
 . 749 
 
 Tombs V. Roch, . 
 
 . 514 
 
 Tarleton v. Vietes, 
 
 . 77 
 
 Tompkins v. Mitchell, 
 
 . 129 
 
 Tarpley v. Poage, 
 
 . 126 
 
 Wheeler, 
 
 . 753 
 
XXX VI 
 
 TABLE OF CASES IN AMEKICAN NOTES. 
 
 Tomlinson v. Tomlinson 
 
 
 PAGE 
 
 . 664 
 
 Tongue V. Morton, 
 
 
 . 746 
 
 Torbet v. Twining, 
 Torrey v. Bank of New 
 
 , 
 
 . 610 
 
 Orleans, 
 
 . 223 
 
 Buck, 
 
 
 200, 203 
 
 Tourney v. Sinclair, . 
 
 
 . 621 
 
 Towers v. Hagner, 
 
 
 . 620 
 
 Townley v. Sherburne, 
 
 
 434, 435 
 
 Townshend v. Brooke, 
 
 , , 
 
 807, 826 
 
 Tracy v. Strong, 
 
 
 565, 566 
 
 Trafford v. Trafford, . 
 
 , , 
 
 . 468 
 
 Transylvania Univers. v. 
 
 Clay, . 
 
 . 544 
 
 Trask v. Donoghue, . 
 
 . 303 
 
 ,305,319 
 
 Treat v. Stanton, ■ . 
 
 , 
 
 . 387 
 
 Tremper v. Barton, 
 
 
 136, 143 
 
 Trent v. Trent, . 
 
 '. 486 
 
 487, 511 
 
 Trenton Banking Co. v. 
 
 Woodruff, . 585 
 
 Trezavant v. Howard, 
 
 , 
 
 . 67 
 
 Trimble v. Bootaby, . 
 
 . 
 
 746, 747 
 
 Trippe v. Frazier, ■ . 
 
 
 187, 515 
 
 Trltt V. Crotzer, . 
 
 '. 54, 
 
 71, 76, 79 
 
 TroUope v. Rutledge, 
 
 
 . 830 
 
 Trotter v. Blocker, . 
 
 , , 
 
 65, 793 
 
 Williamson, 
 
 , 
 
 . 471 
 
 Truesdell v. Callaway, 
 
 
 . 230 
 
 Truluck V. Peoples, . 
 
 
 . 231 
 
 Trustees of Philip's Academy v. King, 60 
 
 V. Sturgeon, 
 
 
 . 680 
 
 of Watertown v 
 
 Cowen, 
 
 . 392 
 
 V. Wright, . 
 
 , 
 
 . 77 
 
 Trye v. Corporation of Gloucester 
 
 664, 665 
 
 Tryon, Re, . 
 
 . 
 
 . 811 
 
 Tucker v. Andrews, . 
 
 . 
 
 . 228 
 
 Gordon, 
 
 , , 
 
 . 598 
 
 Johnston, . 
 
 , , 
 
 340, 343 
 
 Seaman's Aid Society, 
 
 . 60 
 
 Tugman v. Hopkins, . 
 
 
 . 620 
 
 Tunno, Ex parte. 
 
 '. 273, 
 
 275, 280 
 
 Turner v. Crebill, 
 
 
 . 747 
 
 Davis, 
 
 
 . 602 
 
 TurnbuU v. Gadsden, 
 
 
 201, 202 
 
 Turner v. Maule, 
 
 
 254, 274 
 
 Navigation Co 
 
 •» 
 
 . 201 
 
 Petigrew, . 
 Turney v. Wilnams, . 
 
 
 126. 765 
 
 
 . 532 
 
 Turnstall, Ex parte, . 
 
 
 . 278 
 
 Tuttle V. Jackson, 
 
 
 . 749 
 
 Twaddell's App., 
 
 .' 520 
 
 522, 837 
 
 Twopenny v. Peyton, 
 
 
 . 567 
 
 Tyler v. Black, . 
 
 
 200, 202 
 
 Tyree v. Williams, 
 
 
 . 703 
 
 Tyrell v. Morris, 
 
 
 . 233 
 
 Tyson's App., 
 
 
 588, 610 
 
 Tyson V. Mickle, 
 
 
 699, 703 
 
 Passmore, . 
 
 
 . 243 
 
 u. 
 
 Udall V. Kenney 
 
 Urket V. Coryell, .... 
 U. S. V. Inhabitants of Waterborough 
 
 Monroe, • . 
 
 Vaughan 
 
 Union Bank v. Baker, 
 
 Unitarian Soo. v. Woodbury, 71, 78, 132 
 
 Upfull's Trust, Re 794 
 
 Upham v; Brooke 391 
 
 Utica Ins. Co. v. Lynch, . . . 533 
 
 606 
 65 
 230 
 235 
 651 
 127 
 
 V. 
 
 Vail V. Vail, ... 54, 
 Van Buskirk v. Ins. Co. . 
 Vance v. McLaughlin, 
 Vanderheyden V. Crandall, 331, 
 
 Mallory, . 
 
 Vanderheyden, 
 Vandervolgen v. Yates, . 274, 
 Vandever's App., 
 Van Duzen v. Van Duzen, . 
 Van Epps v. Van Deusen, . 
 Van Epps, . 
 Van Hookv. Whitlock, 
 Vanhorne v. Fonda, . 223, 304, 
 Van Kleek v. Dutch Church, 
 Van Meter v. McFadden, . 
 Vansant v. Boileau, . 
 Van Sohoonhoven, Matter of, 
 Van Vechten v. Terry, 
 
 Van Veghten, . 
 Van Winkle v. Van Houten, 508 
 Van Wyck, Matter of, . 271, 
 Varick v. Edwards, . 
 Vattier v. Hade, 
 Vaughan v. Barclay, . 
 Buck, . 
 Vaux v. Nesbit, 
 
 Parke 
 
 Veazie v. Williams, . 
 Venables v. E. I. COmp. . 
 
 Verner's Est 
 
 Vernon v. Morton, 
 Vose V. Grant, .... 
 Vick V. McDaniel, • . . 
 Vidal V. Girard, 60, 66, 107, 183, 
 Villard v. Chovin, 
 Villines v. Norfleet, . 
 Vincent v. Watts, 
 Vizonneau v. Pegram, 
 Voorhees v. Stoothoft, 
 
 W. 
 
 591, 
 
 PAOE 
 
 327, 329 
 
 . 651 
 
 599 
 
 445, 446 
 . 617 
 . 533 
 
 324, 660 
 
 428, 429 
 
 584, 587 
 . 599 
 . 222 
 . 238 
 
 639, 780 
 
 187, 188 
 . 748 
 . 790 
 
 270, 271 
 . 795 
 . 575 
 
 509, 510 
 
 279, 688 
 
 240, 373 
 . 757 
 . 53 
 
 592, 594 
 . 64 
 
 327, 568 
 237 
 
 300, 304 
 . 807 
 
 470, 483 
 . 245 
 . 187 
 
 243, 668 
 . 573 
 . 773 
 . 798 
 . 613 
 . 789 
 
 Wace V. Mallard, 
 
 
 
 
 87, 92. 95 
 
 Waddington v. Banks, 
 
 
 . 243 
 
 Wade v. American Col. Soc, 
 
 . 107 
 
 Dick, . 
 
 
 . 814 
 
 Green, . 
 
 
 . 123 
 
 Harper, 
 
 
 . 221, 223 
 
 Wadworth, Matter of, 
 
 
 . 271 
 
 Wagner v. Baird, 
 
 
 . 237 
 
 Wakefield v. Campbell, . 
 
 . 704 
 
 Wakeman v. Grover, 
 
 469 
 
 470, 473, 484 
 
 Walcott V. Cady, 
 
 
 . 550 
 
 Waldron v. McComb, 
 
 
 . 701 
 
 Walker's Case, . 
 
 
 . 497 
 
 Walker, Ex parte, 
 
 
 . 276 
 
 Walker's Estate, 
 
 
 . 485, 493 
 
 Walker v. Brungard, 
 
 125, 
 
 133, 221, 254 
 480, 654 
 
 Butz, . 
 
 
 . 746 
 
 Byrnham, 
 
 
 
 
 . 533 
 
 Campbell, 
 
 
 
 
 . 479 
 
 Crowder, 
 
 
 
 
 . 578 
 
 Fawcett, 
 
 
 
 
 . 387 
 
 Ferris, 
 
 
 
 
 . 469 
 
 Gilbert, 
 
 
 
 
 748, 754 
 
 Griffith, 
 
 
 
 
 . 101 
 
 Locke, 
 
 
 
 
 . 77 
 
 Logan, 
 
 
 
 
 . 691 
 
TABLE OF CASES IN AMERICAN NOTES. 
 
 XXXVU 
 
 
 PAGE 
 
 Walker v. Milne, 
 
 . 73, 664 
 
 Ogden, 
 
 . 53 
 
 Walker, . 
 
 .• . 240 
 
 Walsh V. Stille, . 
 
 . 247 
 
 Wallace v. Costen, 
 
 . 618 
 
 Duffield, . 
 
 . 126 
 
 McCullough, . 
 
 . 126 
 
 Taliaferro, 
 
 . 600 
 
 Waller v. Armistead, . 
 
 . 228, 772 
 
 Wallington's Estate, . 
 
 . 223, 788 
 
 Wallis V. Freestone, . 
 
 . 694 
 
 Lambert, 
 
 . 224 
 
 Thornton, . 
 
 . 433, 434 
 
 Walwyn V. Lee, . 
 
 . 757 
 
 Warburton V. Farn, . 
 
 . 699 
 
 Ward, Re, . 
 
 . 409 
 
 V. Arredondo, . 
 
 . 53 
 
 Smith, ... 22 
 
 2, 223, 788 
 
 Van Bokkelin, . 
 
 . 260 
 
 Webber, . 
 
 . 209 
 
 Warden v. Wadsworth, . 
 
 . 748 
 
 Wardlaw v. Gray, 
 
 . 587, 600 
 
 Ware v. Gibson, . 
 
 . 216 
 
 McCandlish, 
 
 . 561, 582 
 
 Warfield, Ex parte, . 
 
 . 592, 598 
 
 Waring, Re, 
 
 . 794 
 
 V. Darnall, . 
 
 . 650, 702 
 
 Purcell, . 
 
 . 565 
 
 Warring, . 
 
 . 493, 623 
 
 Warner v. Daniels, 
 
 . 202, 238 
 
 Warren v. Copelin, . 
 
 . 651 
 
 Haley, 
 
 . 609 
 
 Warwick v. Hawkins, 
 
 . 610 
 
 Waterman v. Cochran, 
 
 . 822 
 
 Watermute'sEx'or. v. Snyder's 
 
 Adm., 204 
 
 Waters v. Gwins, 
 
 . 220, 786 
 
 Lemon, 
 
 . 206 
 
 Watkins v. Stockett, . 
 
 . 234 
 
 Watkins, . 
 
 587, 621 
 
 Watson V. Bagaley, . 
 
 . 112, 469 
 
 Bothwell, . 
 
 . 207 
 
 Le Row, . 
 
 124, 141 
 
 Pearson, 339, 343, 34 
 
 4, 688, 690 
 
 Wilson, . 
 
 . 747 
 
 Watt's Settlement, In re, . 
 
 . 276 
 
 Watts V. Girdlestone, . 
 
 . 529 
 
 Webb V. Daggett, 
 
 . 477 
 
 Deitrich, . . £ 
 
 9, 270, 275 
 
 Webb, . 
 
 809, 823 
 
 Wools, . 
 
 83, 92, 94 
 
 Webster v. Haddington, . 
 
 . 726 
 
 Maddox, . 
 
 . 749 
 
 Weeks v. Weeks, 
 
 598, 602 
 
 Wier V. Tannehill, . 
 
 112, 473 
 
 Welch V. Mandeville, 
 
 . 388 
 
 Allen, . 
 
 . 352 
 
 Wells V. Chapman, . 
 
 . 388 
 
 Tucker, 
 
 . 76 
 
 West V. Eiscoe, . 
 
 . 324 
 
 Westbrook v. Harbeson, . 
 
 236, 240 
 
 Westervelt v. Huff, . 
 
 232, 749 
 
 Matheson, . 
 
 . 210 
 
 West Ham. Charities, Re, 
 
 . 679 
 
 Weston V. Barker, 
 
 472, 759 
 
 Wetherhed v. Wetherhed, 
 
 . 52 
 
 Wetherill v. Hamilton, 
 
 . 71 
 
 Whaley v. Eliott, 
 
 . 206 
 
 Wham V. Love, 
 
 . 814 
 
 Wharton v. Shaw, 
 
 . 176 
 
 Wheaton v. Wheaton, 
 
 . 236 
 
 Wheeler v. Bowen, . 
 
 . 599 
 
 JMoore, 
 
 . 599 
 
 PA BE 
 
 Wheeler V.Smith, . . 106,107,183 
 Whelanv. Whelan, 213, 214, 217, 794, 797 
 Whicker v, Hume, . . ' 659, 664, 666 
 Whipple V. Adams, . 
 
 Dow, 
 
 McClure, . 
 Whiston V. Dean, &c., of Rochester, 
 Whitaker v. Whitaker, 
 Whitall V. Clark, 
 
 White V. Albertson, . 
 Briggs, 
 Carpenter, . 
 Cox, '. 
 Flora, . 
 Jackson, 
 Olden, • . 
 Parker, 
 Trotter, 
 White V. White . 
 Whitehall v. Reynolds, 
 Whitehorn v. Hines, . 
 Whitehurst v. Hacker, 
 Whitesides v. Dorris, 
 Whitted v. Webb, . 
 
 Greenlee, 
 Whitman y. Norton, . 
 Weston, 
 Whitney v. Stearns, . 
 Whittle V. Henning, . 
 Wickes v. Clarke, 
 Wickl'iffe v. City of Lexingi 
 Wiggin, Ex parte, 
 V. Swett, 
 Wiggleworth v. Steers, 
 Wilcox V. Callaway, . 
 Wilde V. Gibson, 
 Wiles V. Cooper, 
 Wiley V. Smith, 
 Wilhelm v, Folmer, . 
 Wilkes's Charity, Re, 
 Wilkins v. Anderson, 
 Wilkinson y. Charlesworth 
 Perrin, 
 Wilkinson, 
 Williams v. Branch Bank, 
 Williams's Case, 
 Williams, px parte, . 
 V. Chambers, 
 Clairborne, 
 Ex'rs. V. Marshall, 
 V. FuUerton, 
 HoUingsworth, 
 Matlact 
 MauU, : 
 Maus 
 
 98 
 
 599 
 
 214 
 
 670 
 
 605 
 
 . 618 
 
 . 387 
 
 93, 94, 104 
 
 127, 134, 752 
 
 . 203 
 
 . 210 
 
 . 818 
 
 . 486 
 
 . 331 
 
 . 206 
 
 372, 373 
 . 66 
 
 213, 220 
 89, 598 
 . 587 
 . 837 
 . 215 
 . 508 
 . 206 
 . 198 
 
 596, 597 
 . 584 
 . 373 
 . 785 
 . 565 
 . 216 
 . 231 
 . 203 
 . 809 
 . 488 
 
 126, 38d 
 . 678 
 . 230 
 
 591, 599 
 . 605 
 . 155 
 . 233 
 
 570, 573 
 . 575 
 . 59 
 . 609 
 . 223 
 . 380 
 
 125, 231 
 . 806 
 . 610 
 
 53, 268 
 Otey, 376, 377, 379, 480, 481, 
 
 501, 581 
 Powell, 219, 531, 532, 772 
 
 566 
 
 Waters, 
 Williams, 
 Woodward, 
 Williamson v. Beckham, 
 Field, 
 Morton, 
 Vaulx, 
 Williamson, 
 Willink V. Morris Canal, 
 Willis V. Childe,. 
 Wills V. Cowper, 
 Dunn, . 
 Wilmot V. Pike, . 
 Wilson's Est., . 
 
 325, 326, 330 
 92, 93, 94 
 . 499 
 . 613 
 . 238 
 . 233 
 . 558 
 
 532, 554, 556 ■ 
 . 794 
 669, 678 
 . 688 
 . 238 
 . 652 
 . 243 
 
XXXVIU TABLE OF CASES IN AMERICAN NOTES. 
 
 86, 
 
 10' 
 
 PAGE 
 
 570 
 
 , 832 
 
 401 
 
 480 
 
 , 566 
 
 , 122 
 
 , 770 
 
 169, 392, 470, 563, 564, 
 
 618,621, 623 
 
 304, 470 
 
 747, 757 
 
 . 95 
 
 . 766 
 
 . 478 
 
 . 686 
 
 . 222 
 
 . 253 
 
 . 304 
 
 . 238 
 
 87, 91, 721 
 
 , 267 
 
 183, 658, 660 
 
 . 602 
 
 . 794 
 
 387, 458 
 
 . 175 
 
 . 77 
 
 . 245 
 
 . 533 
 
 . 759 
 
 . 73 
 
 300, 305, 688 
 
 327, 329, 544, 545 
 
 245, 751 
 
 558,559 
 
 . 549 
 
 . 222 
 
 688, 689 
 
 . 388 
 
 . 568 
 
 . 650 
 
 . 187 
 
 559, 568 
 
 77, 126, 202, 234, 236, 
 
 243 
 
 Worchester Charities, Re, . . . 669 
 
 Worleyv. Frampton, .... 398 
 
 Wormeley v. Wormeley, 230, 481, 513, 523, 
 
 546, 693, 709, 751 
 
 Wilson, Matter of. 
 In Re, . 
 Bennett, 
 Davisson, 
 Harman, 
 Howser, 
 Troup, . 
 Wilson, 
 
 Wilt V. Franklin, 
 Winborn v. Gorrell, 
 Winch V. Brutton, 
 Winder v. Differderfer, 
 Winalow v. Ancrum, 
 Winston v. Jones, 
 Winter v. Green, 
 Rudge, 
 Wise V. Wise, 
 Wisner v. Barnett, 
 Withers v. Yeadon, 
 Withington v. Withington 
 Witman v. Lex, . 
 Woelpper's App., 
 Wood's Settlement, Re, 
 Wood V. Burnham, 
 
 Cone, . 
 
 Dille, . 
 
 Dunmar, 
 
 Garnett, 
 
 Hardisty, 
 
 Sparks, 
 Wood, . 
 Woods V. Farmere, 
 Sullivan, 
 Woodman v. Good, 
 Woodruff' V. Cook, 
 Woodridge v. Watkins 
 Wolfv. Bate, 
 
 Eichelberger, 
 Wolfe V. Washburne, 
 Woolmer's Est., . 
 Woolen V. Burch, 
 Woolam V. Hearne, 
 
 Worrell's App., . 
 Worth V. McAden, 
 Worthington v. Evans, 
 Worthy v. Johnson, 
 Wright's App., . 
 Wright V. Dame 
 
 Henderson, 
 King, . 
 Linn, . 
 Lukes, 
 Snowden, 
 Trustees, 
 Wilson, 
 Wood, 
 Wright, 
 Wyche, Re, 
 WykofFv. Wykoff, 
 Wyly V. Collins, . 
 Wyllie v: Ellice, . 
 Wynn v. Lee, 
 Wyse V. Smithj . 
 
 PlUE 
 
 . 520,521,522 
 
 304, 315, 433, 434 
 
 . 430 
 
 704, 783 
 
 . 508 
 
 230 
 
 . 386 
 
 . 483 
 
 131, 134 
 
 183,658,661,682 
 
 . 804 
 
 198, 774 
 
 107, 514, 664, 666 
 
 210, 211 
 
 . 762 
 
 . 533 
 
 839, 840 
 
 . 626 
 
 . 613 
 
 246, 763 
 
 . 387 
 
 . 493 
 
 Y. 
 
 Zane'sWill, 
 Zebach v. Smith, 
 Zeiter v. Bowman, 
 Zellar's Lessee v. Eckart, 
 Zimmerman v. Anders, 
 
 Yardly v. Raub, 
 
 . 620 
 
 Yerby v. Lynch, 
 
 . ^01 
 
 Yohe v. Barnett, 
 
 . 588, 599 
 
 Youmans v. Boulke, . 
 
 . 83 
 
 Yundt'sApp., 
 
 . 533 
 
 Young V. Bumpass, . 
 
 . 203 
 
 Frost, 
 
 . 210 
 
 Jones, 
 
 . 620 
 
 Keogh, 
 
 . 570 
 
 Lord Waterparfc, 
 
 . 377 
 
 Miles, 
 
 548 
 
 Young, 
 
 . 281 
 
 Youst V. Martin, 
 
 . 231 
 
 . 107 
 
 685, 688 
 
 . 746 
 
 . 372 
 
 . 99 
 
TABLE OF ENGLISH CASES. 
 
 [n.b. the keperences are to the star-paqino in brackets.] 
 
 A. 
 
 381 
 
 Abbott V. Abbott, 
 Gibbs, 
 Abel V. Heathcote 
 Abraham v. Newcombe, 
 Ackerley v. Vernon, 
 Ackland v. Lutley, 
 Ackroyd v. Sinithson, 
 Acton V. Woodgate, 
 Adair v. Shaw, . 
 Adams V. Broke, 
 
 Claxton, 
 
 Clifton, 
 
 Cole, . 
 
 Lavender, 
 
 Meyrick, 
 
 Paynter, 
 
 Taunton, 
 damson v. Armitage 
 Addis V. Campbell, 
 Addison v. Mascall, 
 Adlington v. Cann, 
 Adnam v. Cole, . 
 Ainslie v. Meddlicott, 
 Aislabie V. Rice, . 
 Alain V. Jourdan, 
 Albemarle (Earl of) v 
 Alcock V. Sloper, 
 
 Sparhawk, 
 Alder v. Gregory, 
 
 Ada 
 
 PAGE 
 
 . 123 
 
 . 505 
 
 . 475 
 
 . 415 
 
 51, 400 
 
 245, 246 
 
 135, 143 
 
 83, 336, 337, 343 
 
 . 164, 282, 509 
 
 . 282, 369, 478 
 
 . 375 
 
 527, 540, 559, 
 
 353 
 
 175, 177, 180, 
 
 . 218, 226, 
 
 59, 
 
 Rogers, 
 
 62, 64, 
 
 386 
 
 573 
 409 
 416 
 354 
 188 
 307 
 420 
 152, 153 
 . 154 
 
 274, 
 390, 
 361, 
 164, 
 
 164 
 452 
 146 
 501 
 515 
 439 
 391 
 362 
 265 
 
 Aldridge v. Wallscourt (Lord) 350, 351, 352 
 
 Westbrook, . . 553, 554 
 
 Alexander V. Alexander, 70, 486, 489, 493 
 
 Wellington (Duke of), . 46 
 
 Allan V. Backhouse, . . 342, 367, 435 
 
 M'Pherson, . . . .150 
 
 Allen V. Anthony, .... 512 
 
 Coster 403 
 
 Sayer, . . . 268, 403, 504 
 
 Thorp 553 
 
 Alney v. Kendal, .... 513 
 
 Amand v. Bradbourne, . 564, 567, 572 
 
 Ambrose V. Ambrose, . . 57, 94 
 
 Amesburyv. Brown, .... 362 
 
 Amphlett v. Parke, . . . .143 
 
 Anderson v. Anderson, . . . 419 
 
 Dawson, . . . 421, 422 
 
 Ex parte, 193, 202, 207, 288,304 
 
 Anderton v. Cook, . . . 353, 354 
 
 Andrew v. Clark, .... 124 
 
 Wrigley, . . . 165, 265 
 
 Andrews v. Brown, .... 356 
 
 PAGE 
 
 Andrews V. Partington, . 401,402,574 
 
 Angier v. Angier, . . . 426, 427 
 
 Stannard, 188, 278, 280, 555, 563 
 
 Angle, Ex parte, . . . 520, 547 
 
 Anglesey v. Annesley, . . . 149 
 
 Angus V. Angus, .... 44 
 
 Annesley v. Simeon, . ; 274, 317, 448 
 
 Anon. Cases, 277, 289, 339, 342, 367, 372, 
 
 463, 480, 504, 511, 515, 540, 559, 565 
 
 Anon V. Bishop of Llandaff, . 451,461 
 
 Fitzgerald, . . . 277, 540 
 
 Jolland 540 
 
 Osborne, . . . .195 
 
 Robarts, . . 185, 192, 195 
 
 Anstruther V. Adair, . . . .412 
 
 Antrobus v. Smith, . 83, 84, 85, 89, 448 
 
 Aplyn V. Brewer, .... 311 
 
 Archer's Case, 318 
 
 Archer v. Mosse 150 
 
 Arglasse (Earl of) v. Muschamp, . 44 
 Arkell v. Fletcher, . . . .286 
 Armiter v. Swanton, .... 540 
 Arnold V. Chapman, . 139,141,456,457 
 Arnott V. Biscoe, .... 515 
 Anhington v. Coverley, . . . 274 
 Ashburnham v. Thompson, 374, 523, 524, 
 
 559 
 Ashburtonv. Ashburton, 
 Ashley v. Bailley, 
 Ashton V. , 
 
 Ashton V. M'Dougall, 
 Aspinall V. Kempson, 
 Astley V. Mills, . 
 
 Aston V. Aston, 
 
 Curzon, 
 Atherton v. Worth, 
 Att.-Gen. V.Arnold, 
 Arran, 
 Aspinall, 
 
 . 396, 397 
 
 . 165, 514 
 
 . 366, 367 
 
 . 419 
 
 . 256, 260 
 
 . 325, 326 
 
 . 425, 426, 514 
 
 . 515 
 
 . 338 
 
 . 128, 461 
 
 195, 207, 296, 470 
 
 __-, ... 47 
 
 Backhouse, 463, 464, 482, 516 
 Barkham, . . .354 
 Baxter, . . . .451 
 Bedford Corporation, 460, 466 
 
 Berryman, 
 Black, . 
 Boultbee, 
 Bowles, . 
 Bowyer, 
 Brandreth, 
 Brentwood School, 
 Brettingham, 
 
 489 
 
 460 
 
 . 451, 462 
 
 . 453, 455, 457 
 
 119, 212, 451, 462 
 
 466, 467 
 
 . 461 
 
 463, 470 
 
 Brewers' Company, 264, 469, 
 557 
 
xl 
 
 TABLE OF ENGLISH CASES. 
 
 PAGE 
 
 Att.-Gen. V.Bristol (Mayor of), 128, 129 
 
 266, 451, 461, 468 
 
 Brooke, . . . 463, 465 
 
 Brown 521 
 
 Buller, . . 453, 463, 466 
 Burgess of East Retford, 463, 
 
 469 
 
 Caius Coll., 129, 192, 451, 461 
 
 467, 524, 525, 559, 560, 563 
 
 Caldwell, . . .456 
 
 Carlisle (Mayor of), . 453 
 
 Catherine Hall, 129, 451, 462 
 
 Chester (Bishop of), 452, 454 
 
 Christ's Church, 466, 467, 468 
 
 Christ's Hospital, 129, 461,469, 
 
 558, 562 
 
 Clack, 185, 194, 195, 196, 197, 
 
 210, 434, 548, 563 
 
 Clarendon (Earl of), 159, 460, 
 
 466, 539 
 
 Clark, . . . 453, 467 
 
 Coll. of William and Mary, 452 
 
 Comber, . . .453 
 
 Coopers' Company, 128, 129, 
 
 131, 192, 460,461,462,525 
 
 Coventry (Mayor of), 129, 266, 
 
 461, 468, 469, 524 
 
 Crook 463 
 
 Cross, . . 463, 464, 455 
 
 Cumming, 308, 442, 444, 445, 
 
 454, 458, 553 
 
 Davies, . . 451,455,457 
 
 Davy, . . . .443 
 
 Dixie, 451, 460, 464, 465, 466 
 
 Downing, . . 48, 2H 
 
 Doyley, . . . .211 
 
 Drapers' Company, 129,451, 
 
 461. 462, 562, 563 
 
 Drummond, 191, 467, 524, 563 
 
 Dublin (Corporation of), 453 
 
 Dudley (Lord), 169, 170, 266, 
 
 537, 539, 563, 564 
 
 Dyson 196 
 
 Exeter (Corporation of), 266, 
 
 453, 467, 468, 470 
 
 Fishmongers' Company, 130, 
 
 455 
 Flint, 170, 264, 266, 306, 468 
 Floyer, . . 184, 187, 443 
 Foord, . . . .464 
 Forster, 274, 439, 441, 544, 549 
 Foundling Hospital, 48, 460, 
 
 466 
 
 Foyster 468 
 
 Freeman, . . . 453 
 Gascoigne, . 130, 462, 467 
 
 Gibson 451 
 
 Goddard, . . .456 
 Goulding, . . . 451 
 Gower, . . . 464, 515 
 
 Graves 456 
 
 Green, 130, 198, 451, 465, 547, 
 
 548 
 Grocers' Company, 130, 451, 
 
 461 
 
 Grummond, . . . 467 
 
 Guise, .... 451 
 
 Haberdashers' Company, 128, 
 
 129, 461, 467, 558, 559 
 
 Hall 74 
 
 Halsey, . . . .358 
 Hamilton, . . . 475 
 
 Att, 
 
 
 PASE 
 
 -Gen.v. Harley, . 
 
 . 456 
 
 Harrow Schoo 
 
 , . . 466 
 
 Hartley, . 
 
 . 467 
 
 Hartwell, 
 
 . 455 
 
 Heelis, . 
 
 133, 453, 454 
 
 Herrick, . 
 
 . 450 
 
 Hewer, . 
 
 . 459 
 
 Higham, . 
 
 . 381 
 
 Hinkman, 
 
 . 451, 452 
 
 Hothara, 
 
 . 464 
 
 Hungerford, 
 
 170, 463, 464 
 
 Hurst, . 
 
 . 468 
 
 Hyde, . 
 
 . 456 
 
 Ironmongers' 
 
 Company, 48, 
 
 
 451, 461,462 
 
 Jackson, . 
 
 . 467 
 
 .Tohnson, 
 
 129, 461, 469 
 
 Jones, 
 
 . 59 
 
 Kell, 
 
 . 466 
 
 Kerr, 
 
 . 463, 465 
 
 Landerfield, 
 
 . 48 
 
 Lawson, . 
 
 . 57 
 
 Leeds (Duke of), 45, 51,269,430 
 Lepine, . . . 454, 468 
 Lichfield (Bishop of), 187,189 
 190, 443 
 Lock, . . . 460, 466 
 London (Corporation of), 191, 
 195, 451, 454,552 
 Lonsdale (Earl of ), . . 466 
 Mansfield (Earl of), 460, 466, 
 
 467 
 Mathews, . . 450, 451 
 Maywood, . . . 464 
 Merchant Vent. Society, 129, 
 
 451 
 
 Meyrick, 
 Middleton, 
 Mill, 
 
 Milner, . 
 MinshuU, 
 Morgan, . 
 Munby, . 
 Nash, 
 Nethercoat, 
 
 . 456 
 
 . 460, 466 
 
 . 457 
 
 . 137 
 
 129, 451, 461 
 
 281, 508, 547 
 
 456, 457, 459 
 
 . 456 
 
 463 
 
 Newark (Mayor of), . 463 
 Newcorabe, . 274, 439, 454, 
 441, 442, 444 
 Newbury (Mayor of), . 469 
 Norwich (Mayor of), 525, 547, 
 ^0 
 Oglander, . . 451, 461 
 Owen, . . . 463, 469 
 Oxford (Bishop of), . 451 
 Painter & Stainers' Comp.,461 
 Pargeter, . 463, 464, 482 
 Parker, 158, 439, 441, 442, 454 
 
 Parnther, 
 
 . 
 
 . 155 
 
 Parsons, . 
 
 
 . 457 
 
 Pearce, . 
 
 , 
 
 . 453 
 
 Pearson, . 
 
 177, 188 
 
 452, 467 
 
 Perse, . 
 
 
 . 266 
 
 Persoe, . 
 
 . 
 
 . 408 
 
 Pomfret, 
 
 . 
 
 . 202 
 
 Potter, . 
 
 
 . 392 
 
 Poulden, 
 
 , , 
 
 394, 445 
 
 Power, . 
 
 
 . 455 
 
 Prettyman, 
 
 ." 469, 
 
 470, 524 
 
 Price, 
 
 . 460, 
 
 464, 493 
 
 Randell, . 
 
 
 311, 312 
 
 Reeve, . 
 
 
 . 131 
 
 Hichards, 
 
 . 
 
 . 47 
 
TABLE OF ENGLISH CASES. 
 
 Xli 
 
 PAOE 
 
 Att.. Gen. V.Rochester, . . . 465 
 Ruper, . . . .452 
 Rutter, . . . .441 
 Sands, . . . .270 
 Scott, . 230, 308, 443, 444 
 Shore, 176, 191, 210, 467, 524 
 Shrewsbury (Corporation 
 
 of) 453 
 
 Skinners' Company, 130, 462, 
 469 
 Smythies, . . . 460 
 Solly, . . . 374, 523 
 Sothen, . . . .156 
 South-Sea Company, 473, 474 
 Sparks, . . 129, 461, 459 
 Stamford, . 464, 465, 466 
 Stephens, . . 191, 195 
 Stewart, ■ . .59, 457 
 Syderfen, . 128, 130, 451 
 Todd, . . 130, 451, 455 
 Tomkins, . . . 456 
 Tonner, . 129, 131, 451 
 
 Tyndall, . . 456, 468 
 
 Vigor 286 
 
 Vivian, . . . 466 
 
 Wansey, . . 451, 462 
 W^ard, . . . 361, 453 
 Warren, . . 463, 464 
 
 Weymouth (Lord), 135, 456 
 Whitchurch, 451, 456, 462 
 Winchelsea, 176, 212, 461, 470 
 Wilkinson, . . 453, 467 
 Williams, . . 453, 457 
 Wilson, . . 47, 521 
 
 Aubrey v. Middlelon, . 347, 360, 361 
 
 Auriol V. Smith .526 
 
 Austen v. Halsey, . , . . . 361 
 Austin V. England (Bank'of), . . 174 
 
 Taylor 332 
 
 Avery v. Osborn, .... 562 
 Ayliffe v. Murray, . 158, 537, 558, 576 
 Aylward v. Kearney, . 157, 169, 265 
 
 Aynsworth v. Pratchett, . . . 403 
 
 B. 
 
 Back V. Andrews, . . 98,99,100,105 
 Backhouse v. Middleton, . . . 367 
 Bacon v. Bacon, 
 Badham v. Mee, 
 Bagenal V, Bagenal, . 
 Bagg V, Foster, 
 Baggett V. Meux, 
 
 Bagol V. Bagot, . 191,212,426,427,561 
 Bagshawe v. Spencer, 231, 242, 328, 331, 333 
 Bailey v. Ekins, . . 348, 349, 358 
 Gould, . . . .379 
 Biainbrigge v. Blair, 191, 194, 195, 212, 213 
 Baines v. Dixoi), . . . . 575 
 Baker v. Diddle, .... 44 
 Hall, . . . 415, 456 
 
 Martin 575 
 
 Paine, . . . .167 
 
 Sutton, . 79, 80, 133, 452 
 
 Balchen v. Scott, . . . 215, 218 
 
 Baldock, Ex parte, .... 480 
 
 Baldwin v. Banister, . . . 173 
 
 Billingsley, . . .281 
 
 Balfour v. Welland, 338, 342, 343, 476, 504 
 
 Ball v. Coutts, . . . .411 
 
 Harris, . . 342, 345, 355, 504 
 
 Montgomery, 163, 411, 413,428, 557 
 
 311, 540 
 . 403 
 . 368 
 545 
 406, 420, 423 
 
 317, 
 
 PASE 
 
 Balls V. Struft 316 
 
 Balsh V. Higham, . . . 571,578 
 Bamfield v. Wyndham, . . 352, 354 
 Banerman V. Radenius, . . 261,503 
 Bank of England V. Lunn, . . 174 
 Moffatt, . . 445 
 Parsons, . 174, 445 
 Bankes v. Le Despencer, . 334, 335 
 
 Barber v. Barber, .... 535 
 Barclay v. Collett, . . . .428 
 Bardswell V. Bards well, . . 67,73,75 
 
 Barford v. Street 422 
 
 Barker v. Duke of Devonshire, 347, 348, 355 
 
 363, 504 
 Hill, . 
 Richardson, 
 Barkley v. Lord Reay, 
 Barlow v. Grant, 
 
 Heneage, . 
 Barnadiston v. Lingood, 
 Barnard' v. Large, 
 Barnes v. Patch, 
 Barneeley v. Powell, 
 Barnet v. M'Dowall, 
 Barnewell v. Cawdor, 
 Barrett v. Glubb, 
 Barrow v. Greenhough, 
 Barrymore v. Ellis, 
 Barstow v. Kilvington, 
 Bartle v. Wilkin, 
 Bartlet v. Hodgson, . 
 
 Downs, 255, 256, 260, 261 , 327 
 Bartlett v. Pickersgill, . 60, 61, 95965 
 Bartram v. Whicheote, . . . 479 
 Barwell v. Parker, . 336, 339, 341, 35 
 Baskerville v. Baskerville, . . 332 
 
 Bossett V. Clapham, . . .321 
 
 Bastard v. Proby, .... 331 
 Batchel'lor v. Searl, . . . .126 
 Bate v. Scales, . 310, 376, 379, 522, 523 
 Bateman v. Bateman, . 236, 355, 561 
 
 Davis, 369, 382, 526, 527, 559 
 Bates V. Dandy, . . . 406, 416 
 
 Graves, . . . .150 
 
 Heard 151 
 
 Bath (Earl of) v. Abney, . . 270, 430 
 Bradford, 341,349,355,359 
 Montague's Case, . 145 
 
 171 
 503 
 212 
 
 399, 402, 572 
 
 83,88,108,111 
 
 . 153 
 
 319, 322, 323 
 
 76,77 
 
 145, 150 
 
 . 424 
 
 . 358 
 
 . 274 
 
 . 167 
 
 422, 423 
 
 . 167 
 
 . 553 
 
 518, 519 
 
 Batson v. Lindegreen, 
 Battersbee v. Farington, 
 Baugh v. Price, 
 Bawtree v. Watson, 
 Bayley v. Boulcott, . 
 Mansell, 
 Powell, 
 Baylis v. Att. -Gen., 
 
 Newton, 
 Baynes v. Baynes, . 
 Beachcroft v. Bcachcroft, 
 Beadmore v. Cuttenden, 
 Beal V. Beal, 
 Beal V. Ridge, . 
 Beales v. Spencer, 
 Beaman v. Dodd, 
 Beatson v. Beatson, 
 Beauclerk v. Ashburnham 
 Beaumont v. BouUbee, 
 Bramley, 
 Ex parte, 
 Meredith, 
 Beckett v. Cordley, 
 Marsden, 
 
 105, 
 
 293 
 
 84 
 
 345, 358 
 
 . 57 
 
 . 539 
 
 . 153 
 
 57, 60 
 
 176, 212 
 
 . 562 
 
 . 450 
 
 109, 113 
 
 208, 294 
 
 . 345 
 
 . 449 
 
 . 368 
 
 2S4, 299 
 
 . 421 
 
 410 
 
 !, 89 
 
 484 
 
 264 
 
 150 
 
 533 
 
 550 
 
 512 
 
 59 
 
 87, 8 
 377, 
 
xlii 
 
 TABLE OF ENGLISH CASES. 
 
 Beckford v. Beckford, 
 
 Wade, . 96, 264 
 
 Bedford Charity, In re, 195, 198, 209, 
 
 PAGE 
 98 
 
 265 
 467, 
 568 
 98 
 298 
 226 
 540 
 
 473, 
 
 Bedwell v. Frome, .... 
 
 Beech, In re, . . . 202, 208, 
 
 Begbie v. Crook, . . 224, 225 
 
 Beilby, Ex parte, . . . 533 
 
 Belchier, Ex parte, . . 312, 474, 541 
 
 V. Parsong, . 305, 375, 578 
 
 Bellasis v. Compion, . . 57, 59, 62, 96 
 
 Bellew V. Russell, . . . 160,161 
 
 Benbow v. Townshend, . 57, 59, 96, 98 
 
 Bench v. Biles, . . . .360 
 
 Benger v. Drew, . . 92, 94, 98, 101 
 
 Been V.Dixon, . . 386, 391,393 
 
 Bennett v. Atkins, . . . 559, 563 
 
 CoUey, 266, 382, 433, 434, 435, 
 
 528 
 
 Davis, . 48, 269, 406, 529 
 
 Ex parte, . 159, 536, 539 
 
 Going, . . 557, 558, 562 
 
 Hayter, .... 451 
 
 Honey wood, 191, 196, 210,492, 
 
 493 
 
 Vade, 
 
 Benson v. Benson, 
 
 Whittam, 
 Bentham v. Wiltshire, 
 Benton v. Thornhiil, 
 Benyon v. Collins, 
 Beresford v. Archbishop of Armagh, 
 
 Hobson, 
 Berkhampstead School, In re, 
 Berkley v. Ryder, 
 Berry v. Askham, 
 
 Usher, 
 Best V. Stamford, 
 Bethune v. Kennedy, 
 Bettison v. Bromley, . 
 Bevan v. Nunn, 
 Beveridge, Ex parte, . 
 Bick V. Motley, 
 Bickfaam v. Crutwell, 
 Freeman, 
 Bicknell v. Page, 
 Biddle v. Perkins, 
 Biddulph V. St. John, 
 Bifield v, Taylor, 
 Bill V. Cureton, 
 
 Kynaston, 
 Billingsley v. Critchett, 
 Binford v. Bawden, . 
 Bingham v. Bingham, 
 
 Clanmorris, 
 
 Binks v. Lord Rokeby, 343, 363, 476, 504 
 
 505 
 
 Bmns V. Hey 569 
 
 Birch V. Blagrave, 105, 108, 109, 110, 111 
 
 Glover 357 
 
 Wade, . 68,70,71,78,79,492 
 
 Bids V. Betty 314 
 
 Birmingham v. Kerwan, . . . 364 
 Biscoe v. Earlof Banburv, . . 513 
 Perkins, . 233, 318, 320, 322 
 Bishop V. Talbot, , . . .144 
 Blackborn V. Edgly, . . . .157 
 Blackburn v. Stables, 65, 328, 329, 331, 334 
 Blackburne, Ex parte, . . 191,198 
 Blackford v. Christian, . . .154 
 Blacklow V. Laws, . . . 421, 478 
 Blake v. Blake, . . . 61, 439 
 
 145 
 
 420 
 
 72 
 
 476 
 
 336 
 
 505 
 
 425 
 
 411, 412 
 
 . 466 
 
 496, 497 
 
 . 355 
 
 127, 172 
 
 324, 325 
 
 390, 391 
 
 . 540 
 
 . 337 
 
 . 207 
 
 . 531 
 
 351, 363 
 
 . 358 
 
 . 353 
 
 . 475 
 
 . 515 
 
 . 543 
 
 83, 337 
 
 . 385 
 
 . 402 
 
 . 413 
 
 . 149 
 
 224 
 
 PAOE 
 
 273, 384 
 
 . 163 
 
 73, 74, 135 
 
 138, 139 
 
 473, 479 
 
 . 513 
 
 169, 265 
 
 121, 
 
 527 
 364 
 124 
 409 
 552 
 415 
 
 60 
 408 
 
 351, 354 
 . 428 
 429, 449 
 . 157 
 . 309 
 338,339,340,343 
 . 375 
 . 400 
 325, 515 
 82, 88 
 . 265 
 . 412 
 313, 375, 524 
 224, 226 
 361, 364 
 96, 166, 265 
 
 Blake v. Bunbury, 
 Blanchet v. Foster, . 
 Bland v. Bland, 
 
 Wilkins, 
 Blatch v. Wilder, 
 Blenkarn v. Jennings, 
 Blennerhasset v. Day, 
 Bligh V. Earl of Darnley, 
 Blinkhorn v. Feast, 
 Blois V. Hereford, 
 Blount V. Barrow, 
 
 Bestland, 
 
 Hipkins, 
 
 Winter, 
 Blue V. Marshall, 
 Blunden v. Barker, 
 Boardman v. Mosman, 
 Boazman v. Johnston, 336, 
 Boddam v. Ryley, 
 Boddy V. Dawes, 
 Bodmin v. Vandebendy, 
 Bolton v. Bolton, 
 Bond V. Hopkins, 
 Simmons, 
 Bone V. Cook, 
 Bonifant v. Greenfield, 
 Bonner v. Bonner, 
 Bonny v. Ridgard, 
 Booth v. Booth, 236, 309, 369, 373, 379,382, 
 
 495, 526 , 
 
 Leycester 524 
 
 Lightfoot, .... 448 
 Bootle V. Blundell, . 351, 352, 353, 354 
 Boraston's Case, .... 240 
 
 Bosanquet, Ex parte. 
 Boss V. Godsall, . . 369, 
 
 Bostock V. Blakeney, 
 Boteler v. AUington, 
 Bottomley v. Brook, 
 Fairfax, 
 Boughton V. Boughton, 
 James, . 
 
 Bourdillon v. Adair, . . 409, 413 
 
 Bovey v. Leighton, .... 517 
 
 Smith, . . 165, 317, 509 
 
 Bowdler v. Smith, .... 345 
 Bowes V. Earl of Strathmore, 404, 429, 571 
 
 East London Waterworks 
 
 Company, 480, 482, 527 
 
 Heaps 153 
 
 Bowles V. Rogers, .... 171 
 Stewart, . . . 158, 272 
 Boyce v. Banning, .... 475 
 Boycot V. Cotton, . . . .368 
 Boyle V. Bishop of Peterborough, . 493 
 
 Boyne, Ex parte 193 
 
 Bozon V. Bolland, . . . 531, 567 
 
 Stratham 164 
 
 Brace v. Duke of Marlborough, . 515 
 Brackenbury V. Brackenbury, 109, 111 
 Bradford v. Belfield, 184,287, 303, 473, 489 
 Bradling V. Ord, . . . .517 
 
 Bradshaw v. Tasker, . . . 455 
 
 Bradwell v. Catchpole, . . . 310 
 Brander v. Brander, . . . 386, 446 
 Brandlyn v. Ord, . . . 165, 517 
 
 Brandon v. Ashton 395 
 
 Braiser v. Hudson, .... 183 
 Brassbridee v. Woodroff, . . . 126 
 Bray v. West, . 224, 227, 228, 547, 566 
 Braybroke (Lord) v. Inskip, 283, 284, 285, 
 
 307, 343 
 
 302 
 
 485 
 
 571 
 
 279 
 
 . 274 
 
 . 340 
 
 106, 111 
 
 . 354 
 
 484, 
 383, 
 240, 
 
TABLE OF ENGLISH CASES. 
 
 xliii 
 
 Breedon v. Breedon, 
 Brerelon v. Brereton, 
 Brett V. Forcer, . 
 
 Greenwell, , 
 Brettell, Ex parte, 
 Brewster v. Angell, 
 Rrice v. Stokes, 
 
 Bridge v. Brown, 
 Bridgen v. Lander, 
 Bridger v. Reid, . 
 Bridges, Ex parte, 
 Stephens, 
 Bridget v. Hames, 
 Bridgman v. Dove, 
 Green, 
 Bristed v. Wilkins, 
 Bristol (Countess oO v. Hungerford, 
 Brisiow V. Bristow 
 
 PAGE 
 
 . 398,476,504 
 
 476, 486, 488, 495 
 
 . 409, 432 
 
 . 412 
 
 . 284, 285 
 
 . 472 
 
 310, 313, 314, 373, 382, 
 
 483, 495 
 
 . 399, 402, 571 
 
 . 347 
 
 . 282 
 
 . 300 
 
 . 383 
 
 . ■ . 544 
 
 345, 350 
 
 . 146 
 
 174, 445 
 
 119 
 
 453 
 
 British Museum v. White, . . .458 
 Britton v. Twining, . . 330, 333, 335 
 
 Broad v. Bevan, 66 
 
 Broadhurst v. Balguy, 310, 312, 313, 373, 
 382, 474, 483, 495, 527 
 Brocksopp V. Barnes, 404, 570, 574, 577 
 
 Broderick v. Broderick, 
 Brodie v. Barry, . 
 
 Duke of Chandos 
 
 St. Paul, . 
 Brome v. Berkley, 
 Bromhall v. Wilbraham, 
 Bromley v. Holland, . 
 Brook V. Brook, . 
 
 Bulkely, 
 Broom v. Broom, 
 
 Summers, . 
 Broome v. Monck, 
 Brotherton v. Hutt, 
 Broughton v. Langley, 
 Browell v. Read, 
 Brown v. Amyalt, 
 
 Bamford, 
 
 Brown, 
 
 Carter, 
 
 Casamajor, . 
 
 Clark, . 
 
 De Tastet, . 
 
 Ex parte, 
 
 Higgs, 67, 68, 70, 79, 
 486 
 
 410 
 
 Howe, . 
 
 Jones, . 
 
 Litton, . 
 
 Pocock, 
 
 Ramsden, 
 
 San some, 
 
 Selwyn, 
 
 Southouse, 
 
 Temperley, 
 Browne v. Like, 
 
 Lockhart, 
 Brudenell v. Boughton, 
 Bruere v. Pemberton, 
 Brummelv. M'Pherson, 
 
 Prothero, 
 Brydgea v. Brydges, . 
 Phillips, . 
 Buchanan v. Hamilton, 
 Buckeridge v. Glasse, . 
 Ingram, 
 Buckinghamshire (Earl of) v. Hobart, 326 
 Buckle V. Mitchell 516 
 
 146, 425 
 212, 425 
 . 457 
 . 551 
 . 365 
 . 352 
 . 547 
 . 210 
 
 164, 282, 509 
 293 
 467 
 136 
 
 165, 513, 517 
 233, 234, 235 
 
 . 212 
 
 . 410 
 
 422, 423 
 
 176, 212 
 
 . 157 
 
 65, 402 
 
 412, 421 
 
 379, 578 
 
 . 199 
 
 135, 485, 
 
 490, 492 
 
 . 560 
 
 113, 114, 325 
 
 . 377 
 
 . 492 
 
 . 232 
 
 374, 523 
 
 . 172 
 
 374, 523 
 . 400 
 . 422 
 . 552 
 
 356, 360, 361 
 
 375, 524 
 . 52 
 
 350, 351, 352, 354 
 
 . 385 
 
 350,351, 353, 554 
 
 64, 191, 192, 195 
 
 . 526, 527, 528 
 
 362, 435 
 
 Buckley v. Welford, 
 Buffery, Ex parte, 
 Bugden v. Bignold, 
 Bull V. Kingston, 
 
 Vardy, 
 Bullock V. Menzies, 
 Sadler, 
 Stones, 
 Wheatley, 
 Bulpin V. Clark, . 
 Burden v. Burden, 
 Burdon v. Dean, 
 Burge V. Brutton, 
 Burgess v. Burgess, 
 Lamb, 
 Wheate, 
 
 Burgoyne v. Fox, 
 Burke v. Jones, . 
 Burlass v. Cooke, 
 Burleigh v. Stott, 
 Burleton v. Humphrey, 
 Burnet v. Kynaston, 
 Burrv. Mason, . 
 Burrell v. Burrell, 
 
 Crutchley, 
 Burridge v. Row, 
 Burrowes v. Locke, 
 Burt V. Dennet, . 
 Ingram, . 
 Burton, Ex parte, 
 V. Hastings, 
 
 Knowlton, 
 
 Pierpont, 
 Bush V. Allen, 
 Bushell V. Bushell, 
 Butcher v. Butcher, 
 Stapeley, 
 Butler V. Duncomb, . 
 
 Portarlington 
 Buxton V. Buxton, 
 
 Ex parte, 
 Byrchall v. Bradford, 
 
 405, 407, ' 
 
 TAGE 
 
 . 150 
 . 207 
 . 572 
 . 75, 123 
 66, 67, 68, 72 
 . 413 
 . 516 
 401, 402, 404 
 . 379, 380 
 . 424 
 575 
 409, 410, 413 
 572, 575 
 . 535 
 . 385 
 45, 49, 50, 269, 270, 
 275, 276, 430 
 . 364, 480 
 341, 342, 357 
 . 517 
 . 306 
 . 497, 499 
 . 408, 416 
 . 292 
 66, 70 
 . 333 
 . 449 
 . 146 
 . 282, 520 
 . 369 
 . 208, 296 
 . 329 
 . 352, 354 
 . 406, 420 
 233, 234, 407 
 . 511, 512 
 493 
 ". 509, 510 
 . 366 
 . 61 
 380, 446, -474 
 . 480 
 364, 371, 522, 
 523 
 
 238,; 
 
 c. 
 
 Cadman v. Homer, .... 147 
 Cafe V. Bent, . . 184, 185, 494, 563 
 Caffrey v. Darby, . . 447, 559, 561 
 Cagon V. Round, .... 515 
 
 Caldecottv. Brown, .... 571 
 Caldecott, ." . 377, 389 
 
 Callaghan v. Egan 294 
 
 Calverley V. Phelp, . . . 544, 545 
 Calvert v. Godfrey, . 290, 294, 299, 301 
 Sebbon, . . . .533 
 Cambridge V. Rous, . . . 135,136 
 Campbell V. French, . . . 412,413 
 
 Home 555 
 
 Leech, . . . .481 
 Lord Netterville, . . 498 
 Thompson, ... 45 
 Walker, 158, 159, 165, 168, 
 365, 479, 536, 538, 539, 564 
 Campion V. Cotton, . . . . 102 
 ... 160 
 . 447 
 . 525 
 . 400 
 . 209, 300, 568 
 
 Cane v. Allen, 
 Caney v. Bond, . 
 Cann v. Cann, 
 Cannings v. Flower, 
 Cant, Ex parte, . 
 
xliv 
 
 TABLE OP ENGLISH CASES. 
 
 PAGE 
 
 Cape V. Bent, 187 
 
 Capel V. Girdler, . . . .325 
 
 Cardigan (Earl of) v. Montague, . 481 
 
 Carpenter v. Heriot, . . . 157, 538 
 Marnell, . . 51, 269, 530 
 
 Carr v. Bedford, . . . . • 486 
 Burling(on, . 336,338,339,359 
 Eastabrook, . . . .411 
 
 Ellison 270, 430 
 
 Taylor 408, 412 
 
 Carrick V. Errington 134 
 
 Cart V. Rees, 418 
 
 Carter V. Anderson, .... 410 
 Barnadiston, . . 243, 246, 355 
 
 Carteret v. Carteret, . . 254, 279, 281 
 Pascal, . . . .416 
 Petty, 
 Wyndhara, 
 
 Cartwright v. Pettus, . 
 Radnor, 
 
 Carus V. Townshend, . 
 
 Cary v. Abbot, . 
 Askew, . 
 Cary, 
 Goodinge, 
 
 Casborne v. English, . 
 Scarfe, . 
 
 Case V. Roberts, 
 
 Cator V. Cooley, 
 
 Cavendish v. Mercer, 
 
 Cecil V. Butcher, 83, 108, 109, 111 
 
 Chadwick v. Heatley, 
 
 Chadwin, Ex parte, 
 
 Chalk V. Danvers, 
 
 Challan v. Shipham, . 
 
 Challis V. Casborne, . 
 
 Chalmer v. Bradley, 168,'169, 264, 538, 540 
 
 Chalmers v. Brailsford, 
 Chamberlain v. Agar, 
 
 Chamberlain, 
 Dummer, 
 Chambers v. Caulfield, 
 Chambers, 
 Ex parte, 
 Goldwin, 
 Minchin, 
 
 130, 131 
 
 44 
 406 
 44 
 466 
 452 
 455 
 58 
 . 71 
 . 172 
 . 269 
 284, 405 
 518, 547 
 . 511 
 . 400 
 112 
 580 
 . 364 
 93, 95 
 372, 376, 381 
 349 
 
 Waters, 
 Champion, Ex parte, , 
 V. Rigby, 
 Chandos v. Brownlow 
 Talbot, . 
 Chaplin, Ex parte, 
 Chapman v. Blisset, . 
 Brown, , 
 Emery. . 
 Charitable Corporation V.Sutton, 
 
 Donation (Commissioner) v 
 Cotter, 
 
 119 
 
 59,61, 151 
 
 . 151 
 
 . 385 
 
 . 427 
 
 '. 329 
 
 ." 399, 400 
 
 . 403, 574 
 
 305, 310, 313, 373, 
 
 541 
 
 536 
 
 377 
 
 168, 169, 265 
 
 169, 514 
 
 . 416 
 
 370 
 
 232, 239, 
 
 Cholraondely v. Clinton, 168, 257, 258, 260, 
 261, 265, 267, 268, 324, 527 
 
 377 
 240 
 456 
 516 
 521 
 
 Charlton v. Wright, . 
 Charter v. Trevelyan, 
 Chasteney, Ex parte, . 
 Chatham (Lord) v. Tothill, 
 Chertsey iWarket, Re 
 
 568 
 De Clifford, 462 
 Sullivan, 128, 
 451 
 . 344, 358 
 . 160, 581 
 288 
 335 
 314 
 
 Chesterfield (Earl of) v. Janssen, 145, 147, 
 153, 154, 163 
 Chettom v. Lord Audley, . . . 574 
 Child v. Stephens, . . 339,343,358 
 Cholmelyv. Paxton, .... 476 
 
 Christ's Hospital v. Budgin, 
 Christian v. Devereux, 
 Chudleigh's Case, 
 Churchill V. Hobson, . 
 Small, . 
 Clark, Re . . . 
 Clarke v. Berkely, 
 Jacques 
 
 100 
 . 535 
 
 318, 430 
 
 295, 312 
 . 272 
 
 193, 205 
 . 497 
 
 419, 422 
 
 Parker, 214, 307, 308, 485, 488, 
 489, 490, 495, 496, 498, 499 
 
 Pistor, 
 
 Sewell, 
 
 Smith, 
 
 Swaile, 
 
 Turner, 
 
 Clarkson v. Hanway, . 
 
 Clavering v. Clavering, 
 
 422 
 345 
 537 
 538 
 486 
 152, 154 
 83, 84, 85, 87, 88, 
 106,107, 111 
 476 
 368 
 446 
 409 
 125 
 
 Clay v. Sharpe, . 
 Clayton v. Glengall, 
 Gresham, 
 Cleland v. Cleland, 
 Clennel v. Lethwaite, 
 Clergy (Corporation of Sons of) v. 
 
 Mose, 
 Clermont V. Tasburgh, 
 Clifibrd v. Francis, 
 
 Lewis. 
 •Clinton v. Seymour, 
 Clough V. Bond 
 
 Clowdesley v. Pelham, 
 Cloyne (Bishop of) v. Young, 
 Clutterbuck v. Clutterbuck, 
 
 ■ Smith, 
 Cochrane v. Robinson, 
 Cockell v. Pugh, 
 
 478 
 . 146 
 450, 452 
 . 345 
 . 365 
 308, 310, 371, 375, 377, 
 378, 381,541, 573 
 . 347 
 115 
 354 
 358 
 432 
 203, 205, 293, 294, 295, 
 298 
 Cocker v. Quaile, . 369, 382, 483, 495 
 
 Cockerel v. Barber 535 
 
 Cholmeley, . . 476, 479 
 Cocking V. Pratt, . . . 157, 158 
 Cocksedge v. Cocksedge, . . . 427 
 Codrington v. Foley, .... 365 
 Cogan V. Stephens, . . . 128, 142 
 Colchester, (Mayor of) v. Lowten, . 47 
 Cole V. Gibbons, . . . .153 
 
 Gibson, . . . .163 
 
 Robbins, .... 155 
 
 Turner 360 
 
 Wade, 184, 188, 211, 287, 489, 493, 
 
 495 
 
 Colegrave v. Manby, . . 433, 434, 435 
 
 Coles V. Trecothick, 152, 153, 158, 537, 538 
 
 CoUard v. Hare 
 Collier v. Burnett, 
 Dublsy, 
 CoUingdon Ex parte, 
 Collins v. Archer, 
 Collins, 
 Wakeman, 
 CoUinson v. Pater, 
 
 Patrick, 83, 84 
 CoUis V. Blackburn, 
 Cary, 
 Colfis, . 
 Colman, Ex parte, 
 Sarell, 
 Colmore v. Tyndal, , 
 \ Colville V. Middleton, 
 
 114, 
 
 159, 265 
 
 . 454 
 
 552, 559 
 
 . 532 
 
 . 517 
 
 391 
 
 115 
 
 . 455 
 
 86, 87, 89, 448 
 
 . 400 
 
 . 574, 575 
 
 . 550, 551 
 
 . 532 
 
 83, 85, 87, 89 
 
 248, 250, 251 
 
 . 350, 358 
 
TABLE OP ENGLISH CASES. 
 
 xlv 
 
 Mellish, 
 Plunket, 
 ConoUy v. Lord Howe, 
 
 Parsons, 
 Constantein v. Blache, 
 Conway v. Conway, . 
 Cook V. Burtchaell, . 
 Clayworth, . 
 Collingridge, 
 Cook, 
 
 Dunkenfield, 
 
 Fountain, 106, 107, 108, 111, 112, 
 
 113 
 
 Hutchinson, .... 122 
 
 Stationers' Company, 136, 137, 138, 
 
 140, 141, 456 
 
 Cooke V. Crawford, 173, 179, 226, 287, 489, 
 
 541 
 
 PAGE 
 
 366 
 426 
 
 Comb V. Comb; . 
 Compton V. Collinaon, 
 Coningham v. Coningham, 215, 318, 219, 221 
 . . 121 
 . 85 
 . 166, 167 
 . 179 
 . 336 
 . 365 
 . 157 
 . 155, 515 
 . 159, 379 
 325, 447, 546 
 128, 451 
 
 Fryer, . 
 
 Soltau, 
 
 Wiggins, 
 Cookson V. Reay, 
 Coombes v. Gibson, 
 Cooper V. Stationers' Company, 
 
 Thornton, . 
 
 Wyatt, 
 Cope V. Parry, 
 Copeman v. Gallant, . 
 Coppin V. Fernyaugh, 
 Corbert's Case, . 
 Corbert v. Maydwell, 
 Corbyn v. French, 
 Cordall's Case, 
 Corder v. Morgan, 
 Cornish v. Shaw, 
 CornwaUis's Case, 
 Corrie v. Byrom, 
 Corry v. Bllison, 
 Cory V. Gertchken, . 
 
 Cory, . 
 Cesser v. Collinge, 
 Coster V. Coster, 
 Cotham v. West, 
 Cothay v. Sydenham, 
 Cotteen v. Missing, 
 Cotterel v. Hampson, 
 Cottington v. Fletcher, 
 Cotton V. King, . 
 Coventry v. Att.-Gen., 
 Coventry, 
 
 . 336, 543 
 
 253, 255, 257, 263 
 
 429, 427 
 
 . 369 
 
 345, 349 
 
 . 138 
 
 . 598 
 
 . 396 
 
 . 546 
 
 269, 529, 530 
 
 . 513 
 
 Higgins, 
 Courtney v. Ferrers, . 
 Cowgill V. Oxmantown, 
 Cowley V. Hartsonge, 
 Cowper V. Cowper, 
 Cox V. Bateman, 
 
 Chamberlayne, 
 Coxe V. Bassett, 
 Crabb v. Crabb, . 
 Crackelt v. Bethune, 
 
 Cragg V. Holme, 
 Crallan v. Oughton, . 
 Crane v. Drake, 
 Cranslouii (Ld) v. Johnston 
 Crawshay v. Collins, . 
 Cray V. Mansfield, 
 Creagh v. Wilson, . . 
 
 . 346 
 
 365, 366 
 
 452, 456 
 
 243, 246 
 
 . 476 
 
 . 357 
 
 . 510 
 
 180, 181 
 
 . 430 
 
 . 528 
 
 155, 157 
 
 . 482 
 
 . 412 
 
 . 462 
 
 281, 513 
 
 84, 87 
 
 64, 505 
 
 61, 94, 164, 167 
 
 110 
 
 191 
 
 189, 190, 195, 196, 
 
 197,543,552,554,584 
 
 497 
 449, 431 
 . 474 
 369, 488 
 . 151 
 518, 519 
 . 478 
 68,72,81,132 
 64, 101, 105 
 374, 381, 523, 524, 
 558, 559, 564 
 . 156 
 341, 356 
 . 166 
 . 44 
 379, 522 
 . 158 
 . 496 
 
 PAGE 
 
 Creed v. Creed, 362 
 
 Creuze V. Hunter, . . . 341,524 
 Louth, . . . .524 
 Crewe v. Dicken, . 216, 226, 305, 307 
 Cripps V. Jee, ... 61, 62, 166 
 Crockett v. Crockett, ... 65 
 
 Croft v. Adam 65, 69, 70 
 
 Pike, .... 277,540 
 
 Slee 137, 421 
 
 Crofton V. Ormsby, . _ . 164, 282, 509 
 Crommelin v. Crommelin, . . . 497 
 Crook V. Brooking, . . . .61 
 Crop V. Norton, . . . 92, 95 
 
 Crossley v. Archdeacon of Salisbury, 327 
 Crossling v. Crossling, . . 68, 485 
 Crow V. Ballard, .... 156 
 
 Crump V. Baker, . . 570, 572, 573 
 Cruse V. Barley, .... 142 
 
 Cruwys v. Colman, 70, 71, 74, 76, 78, 79, 492 
 Culpepper v. Aston, 342, 343, 356, 359, 504 
 
 Cunliffe v. Cunliffe 
 Currant v. Jago, . 
 Currie, Ex pane, 
 V. Pye, . 
 Curtis V. Chandler, 
 Hution, 
 Lukin, 
 Mason, 
 Perry,. 
 Price, 
 Rippon, 
 Cusack V. Casack, 
 Cutbush V. Cutbush, 
 Cutler V. Coxeter, 
 
 71 
 
 93, 98, 99 
 
 . 288 
 
 . 456 
 
 196, 543 
 
 . 454, 456, 457 
 
 . 433 
 
 . 310, 312, 313 
 
 . 45,93,109,113 
 
 232, 241, 248, 249, 250 
 
 73,75 
 
 • 329 
 
 . 533 
 
 . 352 
 
 D. 
 
 Da Costa V. De Paz, . . 130,451,455 
 Dagley v. Tolferry, . . . 398, 574 
 Dakins v. Beresford, .... 421 
 Dalbiac V. Dalviac, .... 416 
 Daley v. Desbouverie, . 495, 498, 501 
 Dalmaine v. Anderson, , . . 181 
 Dalton V. Coafsworth, . . . 151 
 Hewen, .... 355 
 Dangerfield v. Thomas, . . . 530 
 Daniels v. Davidson, .... 512 
 Warren, . . . .391 
 
 Darke v. Martyn 373 
 
 Darley v. Darley, . . . 406, 420 
 Darlington, Ex parte, . . . 402 
 
 Dashwood v. Bulkeley (Lord), 496, 448, 500, 
 
 502 
 Davers v. Dewes, . . . .134 
 
 Davie v. Beardsham 171 
 
 Davies v. Austen, . . . 399, 574 
 
 Hopkins, 456 
 
 -Leo, 386 
 
 Thomas, . . . .513 
 Thornycroft, . . .419 
 
 Topp 358 
 
 Weld, . . . 322, 323 
 
 Davis, Ex parte, . . . 181,182 
 
 v. Combermere, . . 383, 546 
 
 Dendy 573 
 
 Marlborough (Duke of) 153, 166 
 
 Spurling 314 
 
 Davoue v. Tunning 538 
 
 Davy v. Hooper, .... 69 
 
 Dawson v. Clark, 118, 120, 121, 158, 314 
 
 Massey, . . . ' 374, 515 
 
 Murray, . . . 457, 158 
 
xlvi 
 
 TABLE or ENGLISH CASES. 
 
 PAUE 
 
 Dawson v. Parrot, .... 556 
 Dearden, Re . . . 203, 291, 299 
 Deardon v. Byron (Lord), . 256, 260 
 
 Dearl v. Hall, .... 281, 448 
 Debenham v. Ox, .... 168 
 De Clifford Estates, Re, . 206, 207, 297 
 De Crespigny v. Kitson, . 207, 292, 395 
 Deerhurst (Lord) v. St. Albans, (Duke of), 
 330, 333, 334 
 
 Degg V. Degg, 61 
 
 De la Garde v. Lempriere, 408, 418, 419 
 Delamater's Estate, .... 538 
 
 Delane v. Delane 96 
 
 Doleraine (Earl of) v. Browne, . 168 
 
 De Manneville v.Crompton, 163, 369, 382,482 
 Denn v. Judge, . 221, 226, 237, 238 
 
 Dent V. Bennet, . . 154, 155, 162 
 
 Denton v. Denton, 272, 273, 384,385, 428,429 
 
 Shellard 523 
 
 Desbody v. Boyville, .... 497 
 DeTheminesv. DeBonneval, 134,451, 455, 
 
 458 
 Devenish v. Baines, 
 Devy V. Pace, 
 Dew V. Clark, . 
 De Weever v. Rochfort, 
 Dickenson v. Dickenson, 
 Ex parte, . 
 V. Lockyer, 
 Shaw, . 
 Dike V. Ricks, . 
 Dillon V. Coppin, 
 
 Grace, . 
 Dimes v. Scott, 379, 386,387, 
 Dimmock v. Atkinson, 
 Dick V. Reed, 
 
 Dixon V. Dixon, . 
 Olmius, 
 Dawson, 
 
 Docker v. Somes, 
 
 Docksey v. Docksey, 
 
 Dood V. Dodd, 
 
 Doe V. Biggs, 
 
 Collier, . 
 
 Cook, 
 
 Danvers, . 
 
 Edlin, 
 
 Ewart, 
 
 Field, 
 
 Godwin, . 
 
 Halcombe, 
 
 Hardwicke, 
 
 Harris, 
 
 Hicks, 
 
 Hilder, . 
 
 Hogg, 
 
 Ironmonger, 
 
 Jackson, . 
 
 Jones, 
 
 Lea, 
 
 Lloyd, 
 
 Manners, 
 
 Martin, . 
 
 Nicholls, 
 
 Passingham, 
 
 Plowman, 
 
 Pitcher, . 
 
 Putland, . 
 
 Read, 
 
 Roe, 
 
 Rcott, 
 
 Simpson, 
 
 59, 150, 151 
 . 191,271 
 . 203, 288 
 . 402 
 . 367, 504 
 . 275 
 . 166 
 . 100 
 . 356, 478 
 83, 84, 85, 89 
 . 421 
 388,389,523,574 
 . 413 
 .535 
 . 419 
 . 420 
 . 127 
 160, 374, 522 
 . 125 
 . 329 
 . 232, 233 
 . 235 
 . 262 
 . 58 
 . 232, 242 
 232, 242, 247 
 . 242 
 . 187, 188 
 . 481 
 . 481 
 . 240 
 239, 240, 241, 251 
 253,255, 259, 261,263 
 . 217 
 232, 239, 240 
 . 266 
 . 266 
 . 239 
 . 257 
 . 58 
 240, 473 
 239, 240, 247 
 230, 272, 428 
 . 256, 261 
 453 
 '. 256, 260 
 259, 283, 285 
 . 184, 187 
 . 262 
 232, 242, 244, 245, 246 
 
 Doe V. Smith, 
 Staples, 
 
 PAGE 
 
 224 
 259, 261, 320 
 
 Sybourne, 253, 254, 255, 257, 259, 261 
 
 Thornley 488 
 
 Timins 249 
 
 Walbank, . . . 232, 242 
 WiUan, . . . 232,242,247 
 
 Williams 242 
 
 Doiley v. Sharratt, . . . .171 
 Dolman v. Smith, . . . 350, 353 
 
 Weston 352 
 
 Dommet v. Bedford 305 
 
 Donne v. Hart, .... 406 
 
 Lewis, .... 358 
 
 Donnegall's (Lord), Case, . . 155 
 
 Donner v. Fortescue, .... 545 
 
 Doran v. Simpson 166 
 
 Wiltshire, . . 342, 476, 504 
 Dorchester (Lord) v. Effingham, . 81 
 Dornford v. Dornford, . . . 374, 523 
 
 Doswell V. Earle 415 
 
 Douce V. Torrington, . . . 345, 346 
 Douglas V. Allen, . . . .339 
 Bongreve, . . 333, 339 
 
 Horsfall, . . .543 
 
 Dove V. Everard, . . . 215, 218 
 
 Dover, Ex parte, 203, 205, 206, 207, 215, 237, 
 
 297, 298 
 
 V, Gregory, . . . 347, 349 
 
 Dovenby Hospital, Re, . . . 198 
 
 Dowell V. Dew, 421 
 
 Down V. Worrall, . . . 132, 489 
 
 Re 205 
 
 Downe v. Morris, .... 270 
 
 Downes v. Grazebrook, 159, 169, 479, 527, 
 
 535, 536, 539 
 
 Timeron 421 
 
 Powers, .... 514 
 Re, .... 569 
 
 Downman's Case, .... 56 
 Doyle v. Blake, . 215, 218, 219, 368, 574 
 Doyley v. Att.-Gen., . . . .451 
 Drake v. Robinson, .... 349 
 
 Drakeford v. Wilks 166 
 
 Drayson v. Pocock, 191, 211, 476, 504, 548 
 Driver v. Ferrand, . . 351, 352, 354 
 Druce v. Denison, .... 408 
 
 Drury v. Hook, 163 
 
 Dryden v. Frost, . . . 165, 514 
 
 Du Beil V. Thompson, ... 57 
 
 Dubless V. Flint 550 
 
 Duboise, Ex parte, . . . 275, 449 
 Dubost, Ex parte, .... 89 
 
 Dues V. Smith 412 
 
 Dummer v. Pitcher, 96, 105, 106, 108, 111 
 Dunbar v. Tredennick, . . . 539 
 
 Duncan v. Campbell 427 
 
 Chamberlaine, . 206, 448, 531 
 Duncombe v. Mayer, . . . 272, 428 
 Dunch v. Kent, 336, 337, 340,342, 343, 505, 
 
 512 
 Dundas v. Dutens 57 
 
 Dunlop v. Hubbard, 
 Dunman, Ex parte, 
 Dundage v. White, 
 Durour v. Motteux, 
 
 566, 567 
 
 . 480 
 
 . ]49 
 
 142, 143, 466 
 
 Dyer v. Dyer, 92, 97, 100, 102, 104, 105, 
 
 107, 108 
 Dyster, Ex parte 46 
 
 Eade v. Eade, 
 
 E. 
 
 71, 75 
 
TABLE OP ENGLISH CASES. 
 
 xlvii 
 
 PAGE 
 
 Bales V. England, . . .71, 269 
 
 Earlom v. Saunders 369 
 
 East V. Ryal 464, 559 
 
 East India Company v. M' Donald, . 515 
 Eastwood V. Brown, .... 336 
 Easton v. Smith, 179, 211, 227, 473, 485, 
 
 489 495 
 Ebrand v. Dancer, ... 97, 98 
 Edenborough v. Archbishop of Canter- 
 bury, . . . 441,442,445,566 
 
 Edgecumbe v. Carpenter, 
 Edgell V. Haywood, 
 Edmunds V. Bird, 
 Edwards v. Bates, 
 
 Harben, 
 
 Freeman, 
 
 Fidell, 
 
 Harvey, 
 
 Jones, 83, 84, 85 
 
 Meyrick, 
 
 Pike, 
 Eedes v. Eedes, 
 
 543, 566 
 . 360 
 . 155 
 518, 547 
 . 336 
 . 364 
 92, 99 
 . 551 
 89,448,449 
 160 
 164 
 408, 411 
 
 Evelyn v. Templar, 
 Evertson v. Toppan, 
 Ewer V. Corbet, . 
 Eyton V. Eyton, . 
 Eyre v. Dolphin, 
 Marsden, 
 
 PAGE 
 
 . 90, 516 
 . 533 
 
 . 166, 506 
 
 . 151 
 
 165, 439, 513 
 
 . 142 
 
 Eland v. Eland, 342, 363, 504, 505, 506 
 
 Elder, Ex parte, 425 
 
 Elibank v. Montolieu, . . 408, 409 
 
 Elliot V. Collier 418 
 
 Cordeil, . . . 410, 412 
 
 Elliott 104 
 
 Hancock. . . . 360, 362 
 Merry man, . . . 342, 355 
 Remington, .... 413 
 
 Ellis V. Ellis 555 
 
 Guavas, 173 
 
 IWaxwell, . . . .394 
 
 Shelby, 81,116.117,132,133,454 
 
 Ellison V. Airey, . 349, 360, 575, 576 
 
 Ellison, . . . 83, 84 
 
 Else V. Osborn 319, 320 
 
 Eltham v. Warreyn, .... 464 
 Elton v. Harrison, .... 473 
 Shepherd, . . . 248, 422 
 Elwin V. Williams, .... 417 
 Elworlhy V. Bird, • . . 426,427 
 Wickstead, . . . 410 
 Emblym V. Freeman, . . . 114, 115 
 Emelie v. Emelie, . . ... 378 
 Emery v. Grocock, 253, 255, 257, 258, 261, 
 
 263 
 
 Hill 454, 468 
 
 . 166 
 
 . 366 
 
 163, 556 
 
 399 
 
 Emelslie v. M'Aulay, 
 Emperor V. Rolfe, 
 England v. Downes, . 
 Re, . 
 
 Slade, 252, 253, 254, 257, 258, 262 
 English V. Orde, .... 456 
 
 Entwistle v. Markland, . . .390 
 Erratt v. Barlow, .... 400 
 Errington v. Chapman, . . . 401 
 Evans, .... 172 
 
 Essex V. Atkins, 425 
 
 Estwick V. Cailland 336 
 
 Eure V. Howard 235 
 
 Evans v. Bicknell, 272, 384, 428, 448, 512, 
 
 515 
 
 Chesshire, . . . .153 
 
 .476 
 
 . 219 
 
 . 145 
 
 399, 400 
 
 344, 357 
 
 . 367 
 
 202, 208, 594, 302 
 
 Jackson, 
 John, . 
 Llewellyn, 
 Massey, 
 Tweedy, 
 Evelyn v. Evelyn, 
 Forster, 
 
 Fairfield, Ex parte, . . . 531,532 
 
 Faithful V. Hunt 545 
 
 Fane v. Duke of Devonshire, . . 154 
 
 Fareswell, Re 193, 206 
 
 Farmer v. Compton, . . . 498, 500 
 Farrington v. Knightly, . . 123, 124 
 Faulkner V. Elger, . . . 441,442 
 
 Fauntleroy, Re 190, 205 
 
 Faversham Charities, Re, . 188,191,194 
 Fawcett v. Lowther, . , ' . . 270 
 Whitehouse, . . . 160 
 Fearns v. Young, 386, 393, 404, 566, 567, 
 570, 572, 573 
 Fearon, Ex parte, .... 150 
 
 v. Webb, . . 439, 441, 454 
 Featherstonhaugh v. Fenwick, . . 379 
 Fell V. Lutwidge, 
 Fellowes v. Gwyder (Lord) 
 Mitchell, . 
 Till, . 
 Fenelito, Ex parte, 
 Fenner v. Taylor, 
 Fenny v. John, . 
 Jones, . 
 Feteges v. Robinson, . 
 Fergusson v. Ogilvy, . 
 Ferrars v. Cherry, 
 Fettiplace v. Gorges, . 
 Ffrench, Ex parte. 
 Field V. Donoughmore (Lord), 
 Filmer v. Golt, . 
 Finch's Case, 
 Finch V. Finch, . 
 
 Hattersley, 
 
 Squire 
 
 558 
 146 
 305, 311, 813 
 293, 295 
 . 302 
 88, 411 
 . 262 
 . 262 
 . 353 
 . 568 
 512, 516 
 45, 421 
 . 370 
 . 338 
 . 156 
 . 172 
 92,100, 103, 105 
 345, 347 
 456 
 
 Winohelsea(Earlof),269, 282, 510 
 
 Finlay v. Howard, 
 Fitzer v. Fitzer, . 
 Fitzgerald v. Fauconberg, 
 Field, . 
 Jervoise, 
 Pringle, . 
 Raynsford, 
 Fitzgerald, Re, . 
 Fiizgibbon v. Scanlan, 
 Flanagan v. Nolan, 
 Flanders v. Clarke, . 
 Fletcher v. Chapman, 
 Fletcher, . 
 Sidley, . 
 
 Walker, 272, 374, 376, 560, 564 
 Flint v. Hughes, . 
 Floyer v. Sherrard, 
 Flud v. Rumsey, 
 Fodern v. Finney, 
 Foley, Ex parte, . 
 v. Hill, 
 
 191, 194 
 405, 426 
 . 514 
 . 366 
 . 474 
 370, 557, 563 
 439 
 193, 200 
 438, 439 
 562, 563 
 307, 586, 489 
 127 
 426 
 90, 102 
 
 74 
 
 152 
 
 172 
 
 410 
 
 204, 208, 292, 296, 297 
 
 173 
 
 Parry 71 
 
 Wontner, . . 186, 187, 467 
 
 Foljambie v. Willoughby, . . . 401 
 
 Forbes v. Ball, . . .68, 71, 78, 492 
 
 Peacock, 342, 355, 363, 473, 476, 
 
 379, 504, 505, 506, 507 
 
xlviii 
 
 TABLE OF EK&LISH CASES. 
 
 Forbes v. Phipps, 
 
 Ross, 
 Ford V. Fowler, . 
 
 Peering 
 Fordyce v. Willis, 
 Forrest v. Elwes, 
 Forsterv. Blackburne 
 
 Blackstone, 
 
 Hale, . 
 Fort V. Fort, 
 Fortescue v. Barnett, 
 Fotherby V. Pate, 
 Fountaine v. Pellet, 
 
 PAGE 
 
 . 416 
 
 368, 374, 523, 559, 564 
 
 71, 76 
 
 271 272 
 
 56, 57, 60,61, 95, 107 
 
 . 381, 522 
 
 . 281 
 
 . 448 
 
 . 56, 57, 58, 61 
 
 . 415 
 
 82, 89, 448, 449 
 
 . 277, 540 
 
 277, 429, 540, 569, 
 
 570 
 
 . 199 
 
 . 355 
 
 Fowey's Charities, Re, 
 Fowle V. Green, . 
 
 Jones, 236 
 
 Fowler V. Fowler 425 
 
 Fowler V. Garlike, .... 116 
 
 Hunter, . . .69, 492 
 
 Fowler, Re, . . 206, 492 
 
 Willoughby, . . .362 
 
 Fox V. Mackreth, 147, 148, 158, 159, 537, 
 
 558, 559 
 . 153 
 . 456 
 . 362, 551 
 . 163 
 . 277, 540 
 374, 377, 523, 559 
 399, 402, 572 
 . 426 
 . 414 
 . 575 
 . 344, 357 
 . 425 
 . 425 
 . 405 
 . 376, 550, 574 
 . 375, 573 
 . 355, 358 
 350, 351, 352, 353 
 Davidson, 485, 487, 491, 490, 495 
 Hobson, . . . 522, 523 
 Frewen v. Charlton, . . . 319, 321 
 
 Fry V. Porter 510 
 
 Shelbourne (Lord), . . . 366 
 
 Fryer V. Flood 102 
 
 Fuller V. Bennett, . . . .514 
 Knight, 382, 383, 519, 520, 580 
 
 Wright, . 
 Foy V. Foy, 
 Francis v. Collier, 
 Franco v. Bolton, 
 Frank v. Mainwaring, 
 Franklin v. Frith, 
 
 Green, 
 Frampton v. Frampton, 
 Fraser v. Bailie, . 
 Palmer, 
 Freake v. Cranefeldt, 
 Frederick v. Hartwell, 
 Freeman v. More, 
 
 Parsley, . 
 
 Fairlee, . 
 Freme v. Woods, 
 Freemoult v. Dedire, . 
 French v. Chichester, 
 
 Fulton V. Gilmour, 
 Furgus V. Gore, . 
 Furlan v. Saunders, 
 Futter V. Jackson, 
 Fyler v. Fyler, . 
 
 309, 314, 580 
 . 356 
 . 317 
 . 550 
 
 378, 581, 522 
 
 G. 
 
 Gage V. Whatmough, . 
 Gainsborough v. Gainsborough, 
 Gaitv. Osbaldeston, . 
 Galliers v. Moas, 
 Gallim v. Noble, 
 Gardiner, Ex parte, . 
 Gardner v. Rowe, 
 Garforih v. Bradley, . 
 Garland, Ex parte, 
 Garmalone v. Gaunt, 
 Garrard v. Lauderdale, 
 
 118, 534 
 
 . 354 
 
 . 517 
 
 . 286 
 
 362, 474 
 
 . 411 
 
 57, 530 
 
 . 408 
 
 533 
 
 367, 396, 435, 436 
 
 83, 336, 337, 388, 
 
 343 
 
 Garrett v. Noble, 
 Gartland v. Mayott, 
 Garth v. Baldwin, 
 Cotton, 
 Ward, . 
 Gartside v. Isherwood 
 RadclifTe, 
 Gaacoigne v. Thwing, 
 Gaskell v. Gaskell, 
 Gough, 
 Hough, 
 Gathorne, Re, 
 Gaunt V. Taylor, 
 Gayner v. Wilkinson, 
 Geary v. Bearcroft, 
 George v. Howard, 
 George (St.) v. Wake, 
 Gerrard v. (lerrard. 
 Gibbons v. Hawley, 
 Gibbs, Ex parte, 
 
 V. Rumsey, 
 
 PAGE 
 380, 474 
 . 184 
 232, 242, 333 
 318, 323 
 . 511 
 152, 154, 155, 156 
 . 151 
 94, 95, 108 
 86, 109 
 
 Giblet V. Hobson, 
 Gibson v. Bott, 
 
 Heyes, 
 
 Jeyes, 
 
 Kinven, 
 
 Montford (Lord) 
 
 98, 
 
 Rogers, 
 
 Russel, 
 
 Scudamore, 
 Giddings v. Giddings, 
 Gifford V. Manly, 
 
 Hart, 
 Gilbert v. Bennet, 
 Gill V. Att.-Gen., 
 Gillam, Ex parte, 
 Gillett, Ex pane, 
 V. Wray, 
 Gillibrand v. Goold, 
 Gilten v. Birt, 
 Gingell v. Home, 
 Girling v. Lee, 
 Gittins V. Steele, 
 Gladding v. Yapp, 
 Gladstone v. Hadwen, 
 Glaister v. Hewer, 
 Glengall v. Barnard, 
 Glisson V. Ogden, 
 Gloucester (Corp. ol)v. Wood, 
 Glover V. Monckton, . 
 Glubb V. Att.-Gen., . 
 Glyn V. Lock, 
 Godber v. Laurie, 
 Goddard v. Snow, 
 
 Re, 
 Godden v. Crowhurst, 
 Godfrey v. Watson, . 
 Goding, Ex parte, 
 Godolphin v. Godolphin, . 
 Godolphin (Earl of) v. Penneck, 
 Godsall V. Webb, 
 Gofton V. Mill, 
 Goldsmid v. Goldsmid, 
 Good V. Cheesman, . 
 Goodenough v. Tremamondo, 
 Goodere v. Lloyd, 
 Goodman v. Edwards, 
 Goodrich v. Sheddon, 
 Goodright v. Shales, 
 Symmer, 
 
 351 
 
 . 354 
 
 290, 292 
 
 553, 567 
 
 . 516 
 
 . 50 
 
 . 108 
 
 . 103 
 
 . 365 
 
 531, 568 
 
 . 568 
 
 66, 117, 124, 127, 130, 
 
 140, 142, 485 
 
 142, 143, 457 
 
 . 379, 389 
 
 519 
 
 152, 157, 166 
 
 . 486, 490 
 
 231, 242, 244 
 
 244, 245, 243 
 
 246 
 
 154, 165 
 . 392 
 . 439 
 . 519 
 . 545 
 . 66 
 . 314 
 . 288 
 
 530, 531 
 . 496 
 . 367 
 . 514 
 . 150 
 . 358 
 
 353, 362 
 
 114, 117, 125, 126, 127 
 
 . 51 
 
 102, 415 
 . 387 
 . 157 
 . 134 
 . 240 
 . 457 
 
 342, 504 
 . 414 
 . 163 
 . 291 
 . 395 
 . 573 
 . 480 
 . 67 
 
 345, 349 
 . 87 
 . 356 
 . 402 
 . 337 
 . 392 
 . 114 
 . 286 
 . 59 
 . 325 
 . 257 
 
TABLE OF ENGLISH OASES. 
 
 xlix 
 
 PASE 
 
 Goodson V. Ellison, 221, 222, 253, 254, 256, 
 
 257, 279, 280, 303, 327, 555, 556, 560, 
 
 561, 579, 581 
 
 Goodtitle dem. King v. Woodward, 306 
 
 V. Funucan, . . . 481 
 
 Jones, 253, 259, 261, 262, 274, 
 
 316, 322 
 
 Knott 231 
 
 Welford 540 
 
 Whitby 240 
 
 Goodwyn v. Lister, .... 288 
 
 Goose V. Davis, . . . .411 
 
 Gordon v. Gordon, 148, 149, 169, 265, 525 
 
 Trail, . . . 567, 572 
 
 Gore V. Black, . . . .325 
 
 Stackpole, .... 511 
 
 Gorge's (Lady) Case, . . 98, 102 
 
 V. Pye, .... 522 
 
 Gospel Propagation Society v. Att.-Gen., 
 
 454 
 Goss V. Tracy, 
 Gough V. Andrews, . 
 Gould's Case, 
 Gould V. Fleetwood, 
 Gower v. Mainwaring, 
 Gowland v. De Faria, 
 Goymour v. Pigge, 
 Graham v. Londonderry (L 
 Granger, Ex pane. 
 Grant v. Lynam, . 77, 
 Grantley v. Garthwaile, 
 Granville v. Beaufort, 
 Gravenor v. Hallam, 
 
 ord), 
 78,' 
 
 401 
 
 Graves v. Graves 
 Gray v. Matthias, 
 Grayden v. Grayden, 
 
 Hicks, 
 Greaves v. Powell, 
 Green, Ex parte, 
 V. Belchier, 
 
 Ekins, 
 
 Green, 
 
 Holden, 
 
 Otte, 
 
 Rutherforth 
 
 Smith, 
 
 Spicer, 
 
 Stephens, 
 
 Winter, 
 Greenhouse, Ex parte, 
 Greenhow v. Etheridge, 
 Greenlaw v. King, 
 Greenwell v. Green well, 
 Greenwood v. Evans, 
 
 Wakeford, 191, 196, 197, 286, 
 
 369, 383, 483, 519, 520, 526, 543, 554, 584 
 
 Gregory v. Gregory, 166, 265, 313, 527, 
 
 538, 547 
 Gregory v. Henderson, . . 233, 234 
 Grey v. Grey, . . 97, 99, 102, 104, 352 
 (Lord) V. (Lady) . . .352 
 Minnethorpe, 350, 351, 352, 354 
 Grieves v. Case, 
 Griffin v. De Venill, 
 
 Griffin, 
 
 Nainson, 
 
 Ex parte, 
 Griffith y. Robin, 
 
 Rogers, 
 
 Spratley, 
 
 Vere, 
 Grigby v. Cox, 
 
 150, 277, 540 
 
 366, 564 
 . 510 
 . 576 
 
 485, 486 
 . 153 
 . 149 
 . 537 
 
 168, 265 
 
 ■9, 485, 492 
 
 . 436 
 
 . 124 
 
 142, 456 
 
 345, 346 
 . 163 
 . 501 
 
 497, 501 
 . 358 
 
 275, 449 
 
 367, 435 
 329, 404 
 
 . 354 
 . 291 
 . 411 
 . 48 
 . 171 
 . 395 
 . 332 
 . 538 
 
 524, 198 
 
 . 553 
 
 159 
 
 400, 401 
 434, 436, 437 
 
 . 452, 
 
 456 
 
 . 154, 
 
 156 
 
 . 160, 438, 
 
 539 
 
 
 151 
 
 .' 290, 
 
 312 
 
 . 155, 
 
 162 
 
 
 124 
 
 '. '. '. 152, 
 
 153 
 
 ■ • ■ • 
 
 394 
 
 • • t • 
 
 425 
 
 PAGE 
 
 Grimmett v. Grimmett, . . . 456 
 Grimstead's Case, .... 540 
 Grimstone, Ex parte, . . , 396 
 
 Groves v. Clark, .... 418 
 
 Groves 94 
 
 Perkins 418 
 
 Saneom, .... 568 
 Guidici v. Kinton, .... 429 
 GuUam v. Holland, . . . .368 
 Gullin V. Gullin, . . . .414 
 
 Guth V. Guth, . . . .426 
 
 Gwynne V. Heaton, . . . 152, 153 
 Gwytter v. Allen, . . . .383 
 
 H. 
 
 Habergham V. Vincent, . . 361, 362 
 Haggar, Ex parte, . . . 205^ 298 
 
 Haines, Ex parte 159 
 
 Haldenby v. SpofForth, . . .355 
 Hale (Sir Edward) and Lady Carr's Case, 
 
 378 
 
 Haley v. Banister, 
 Hall V. Carter, . 
 Dewes, 
 Hallett, 
 Lack, 
 Laver, 
 Smith, . 
 Halliday v. Hudson, 
 Hamilton v. Fry, 
 
 . 394, 402 
 
 365, 367, 368 
 
 186, 303, 473 
 
 160, 539, 557 
 
 . 519, .545 
 
 . 565, 567 
 
 . 513 
 
 . 192, 359 
 
 191, 196 
 
 Houghton, 334,338,339,341, 
 359 
 Royse, . . . 165, 510 
 
 Worley, 
 Hamley v. Gilbert, 
 Hammond v. Neame, 
 Hampden v. Hampden, 
 Hampson v. Brandwood, 
 Hampton v. Spencer, 
 Hanbury v. Kirkland; 
 
 Spooner, 
 Hanby v. Roberts, 
 Hancom V. Allen, 
 Hancox v. Abbey, 
 Hanington v. Du Chatel 
 Hansard v. Hardy, 
 Hanson v. Keating, 
 Lake, 
 Miller, 
 Harden v. Parsons, 
 Harding v. Glyn, 68, 
 Grady, 
 Grey, 
 Hardingham v. Nicholls, 
 Hardwick v. Mynd, 
 Hardwick v. Lord Vernon, 
 Hare v. Shearwood, 
 Harewood v. Child, 
 Hargrave v. Tindal, 
 Hargreaves v. Mitchell, 
 Rothwell, 
 Harl^nd v. Trigg, 
 Harmer v. Harris, 
 Harrington v. Price, 
 Harris v. Barnes, 
 
 Ex parte, 
 
 Ingledew, 
 
 Packer, 
 
 Tremenhere, 
 Harrison v. Forth, 
 
 357 
 . 65 
 . 402 
 . 151 
 555, 566 
 *. 61 
 218, 306, 310, 313, 
 314, 381, 382 
 . 535 
 . 364 
 . 377, 378 
 . 350, 354 
 . 163 
 . 512 
 . 406 
 293, 300, 301 
 . 415 
 311,313,378,527 
 70, 71, 76, 79, 492 
 345 
 
 . 357 
 
 . 514 
 
 307, 474 
 
 539, 558 
 
 166, 167 
 
 . 352 
 
 . 350 
 
 341, 356 
 
 165, 514 
 
 71, 76 
 
 . 568 
 
 . 271 
 
 . 457 
 
 532, 533 
 
 338, 345 
 
 . 361 
 
 160, 161 
 
 165, 517 
 
TABLE OF ENGLISH CASES. 
 
 Harrison v. Graham, 
 
 Harrison, 
 
 Naylor, 
 
 Pryse, 
 
 Rowley, 
 
 Southcote, 
 Hart v.. Ffrench (Lord) 
 Hart V. Ten Eyck, . 
 Hartford, Re, 
 
 Hartga v. Bank of England 
 Hartfey V. Hurle, 
 Harton v. Harton, 
 Hartwell v. Hartwell, 
 Harvey v. Aston, . 308, 
 Harvey, 392, 401 
 JUontague, 
 Harwood v.. Oglander, 
 Hassel v. Hassel, 
 Hatch V. Hatch, 
 Hathornlhwaite v. Russel, 
 Hatton V. Nioholl, 
 Havers v. Havers, 
 Hawes v. Wyatt, 
 Hawker v. Buckland, 
 
 Hawker, 
 Hawkins v. Chappel, 
 
 Handock, 
 
 PAGE 
 
 218, 310 
 
 215, 456 
 
 . 332 
 
 . 546 
 
 . 535 
 
 . 514 
 
 . 200 
 
 42, 165 
 
 193, 205 
 
 . 445 
 
 350, 351, 303, 354, 425 
 
 234, 241, 407 
 
 . 161 
 
 496, 497, 498 
 
 406, 420, 494 
 
 . 511 
 
 267, 358 
 
 . 360 
 
 151, 158, 160 
 
 . 212 
 
 . 345 
 
 . 212 
 
 156, 157, 158 
 
 . 358 
 
 . 231 
 
 . 474 
 
 . 288 
 
 Kemp, 
 Luscombe, 
 
 Obeen, 
 Hayes v. Bay ley, 
 
 Kingdome, 
 Hayford v. Benlows, 
 Haync v. Hayne, 
 Hayter v. Rod, 
 
 Trego, 
 Hayton v. Wolfe, 
 Hazard v. Lane, 
 
 179, 221,225, 226,307, 
 
 473, 489 
 
 233, 234, 235, 241, 
 
 242, 407 
 
 . 283, 288, 416 
 
 . 260, 261, 368 
 
 . 92 
 
 . 353 
 
 . 151 
 
 324, 326 
 
 . 451 
 
 223 
 
 308, 568, 569 
 
 Hazlewood v. Pope, 349, 350, 352, 355, 358 
 
 Head v. Egerton, .... 514 
 Head, .... 426, 427 
 Teynham 547 
 
 Heald, Ex parte, . . . 531,532 
 
 Heardson v. Williamson, 239, 242, 244, 245 
 
 246 
 
 Hearle v, Greenbank, . 46, 
 
 Hearn v. Wells, 
 
 Heathcote v. Hulrae, 
 Paignon, 
 
 Heatley v. Thomas, 
 
 Heaton, Ex parte, 
 v. Hassel, 
 
 Hebblethwaite v. Cartwright, 
 
 Hemmings v. Munckley, 
 
 Henchman V. Att.-Gen., 140, 141, 270, 457 
 
 Henderson v. M'lver, . . . 573 
 
 Henkle v. Royal Exchange Assurance 
 
 Company, 167 
 
 402, 406 
 
 . 543 
 
 374, 523 
 
 . 152 
 
 . 424 
 
 532 
 
 409 
 
 365 
 
 496, 499 
 
 379, 
 
 Henley v. Axe, 
 
 . 
 
 153 
 
 Phillips, . 
 
 • * 
 
 558 
 
 Henshaw v. Atkinson, 
 
 • ■ 
 
 457 
 
 Henvell v. Whitaker, 
 
 . . ■ 
 
 347 
 
 Herbert, Ex parte. 
 
 
 449 
 
 V. Lownes, 
 
 
 150 
 
 Hereford (Bishop oft v. 
 
 Adams, 131 
 
 462 
 
 Hereford v. Ravenhill, 
 
 . 128, 142 
 
 369 
 
 Heme v. Meers, 
 
 . 158 
 
 537 
 
 Heron v. Heron, 
 
 . 157, 
 
 518 
 
 Hertford (Borough of) 
 
 V. Poor of Hert- 
 
 
 ford, . . . 
 
 . 558, 
 
 562 
 
 PAGE 
 
 Hethersell v. Hales, . . . .578 
 Hewet V. Forster, 310, 313, 373, 378, 565 
 
 Hewit V. Hewit, 
 Hewitt V. Morris, 
 Heygate v. Annesley 
 Hibbard v. Lamb, 
 Hibbert v. Cook, 
 
 Jenkins, 
 
 Hickey v. Bin, . 
 
 Hicks V. Hicks, . 
 
 Wrench, 
 
 Plide V. Heywood, 
 
 Hide, 
 Hiernv. Mill, 
 Highway v. Banner, 
 Hillary v. Walker, 
 
 191,212,486,494 
 
 388, 389 
 
 . 416 
 
 211, 489 
 
 394, 571 
 
 . 540 
 
 . 503 
 
 272, 374, 523 
 
 . 553 
 
 . 558 
 
 . 361 
 
 512, 513, 514 
 
 . 329 
 
 253, 254, 255, 256, 257, 
 
 263 
 
 551 
 
 Hill V. Cock, 
 
 Hill, . 
 
 London (Bishop of), 
 
 Magan, 
 
 Reardon, . 
 
 Simpson, . 
 Hilliard, Ex parte, 
 Hillier v. Jones, . 
 Hillyard v. Taylor, 
 Hillon v. Kenworthy, 
 Hindev.Blake, 83,87, 336, 
 Hine v. Dodd, 
 Hinton V. Hinton, 
 Hinves v. Hinves, 
 Hitchens v. Hitchens, 
 Hitch V. Leworthy, 
 Hixton V. Withan, 
 Hoare v. Hoare, . 
 Hobart v. Suffolk (Countess of) 
 Hobbs v. Hull, . 
 Hobson v. Bell, . 
 
 Blackburn 
 Staneer, 
 Trevor, 
 Hockley v. Bantock, 
 Mawbey, 
 Hodgens v. Hodgens, 
 Hodgson V. Dean, 
 
 Hodgson, 
 Hutchenson, 
 Hoffman v. Pitt, . 
 Hoggen, Ex parte, 
 Holdenby v. SpofForth, 
 
 Holford V. Phipps, 
 
 119, 127 
 . 472 
 . 120 
 
 567, 572 
 . 45 
 . 166 
 
 374, 376 
 
 . 365 
 
 . 468 
 
 . 236 
 
 337, 449, 550,551 
 
 165, 515 
 
 166, 269 
 390, 391 
 243, 246 
 489, 495 
 
 . 358 
 
 426, 427 
 
 119, 122 
 
 . 427 
 
 . 479 
 
 286, 364 
 
 . .545 
 
 . 44 
 
 371, 372 
 
 66, 69, 70 
 
 411, 413 
 
 511, 512 
 
 281, 574 
 
 . 57 
 
 . 336 
 
 . 203 
 
 . 476 
 
 Holdridge v. Gillespie 
 
 Holford v. Wood, 
 
 Holland v. Baker, 
 Hughes, 
 
 Holliday v. Bowman, 
 
 HoUia V. Lady Carr, 
 
 flolloway V. Headington, 
 
 Holman, E.x parte, 
 
 Holmes v. Coghill, 
 Bring, 
 Lysight, 
 Williams, 
 
 Holt V. Holt, 
 
 Hone V. Medcraft, 
 
 Honer v. Morton, 
 
 Honor v. Honor, 
 
 Hooper v. Eyles, 
 
 Goodwin, 
 Rossiter, 
 
 Hope V. Clifden, . 
 
 279, 281, 556, 565, 566, 
 579 
 
 . 538 
 
 . 362 
 
 . 545 
 
 377, 381 
 
 352, 354 
 
 . 357 
 
 85, 87, 89 
 
 255, 258, 259, 261, 263 
 
 . 349 
 
 . 403 
 
 . 496 
 
 . 475 
 
 438, 439 
 
 . 363 
 
 414, 415, 416, 418 
 
 329 
 
 95 
 
 524 
 
 fee 
 
 366 
 
 361 
 
 362, 
 
TABLE OF BNaLISH CASES. 
 
 PAOE 
 
 Hopkins V. Hopkins, . . 41,230,135 
 
 Myall, . 369, 382, 421, 422 
 
 Hopkinson v. Roe, .... 573 
 
 Horde v.E.ofSuffblk,79, 80,131,133,466,493 
 
 Hore V. Woulfe, 
 Home V. Burton, 
 Home, 
 Hornsby V. Lee, . 
 Horsfall, Re, 
 Horsley v. Chaloner, . 
 Horwood V. West, 
 Hoskins v. NichoU, 
 Hoste V. Pratt, . 
 Hotchkin v. Humphrey, 
 Hougham, Ex parte. 
 
 416 
 . 332, 472 
 . 363, 505 
 . 415, 416 
 . 286 
 . 146, 558 
 71, 75 
 374, 523, 569 
 . 501 
 . 166 
 45, 93 
 . . 478 
 Hovenden v. Lord Annesley, 50, 264, 465, 
 
 267, 269 
 
 Hovey v. Blakeman, 
 Howard v. Damian, 
 Digby, 
 Ducane, 
 Papera, 
 Rhodes, 
 Howard v. Dean, 
 
 . 311, 313, 574 
 . 514 
 . 425 
 . 478 
 . 212 
 191, 195, 196, 554 
 515 
 
 Howe V. Earl of Dartmouth, 136, 377, 378, 
 381, 386, 387, 388, 390, 574 
 
 Howe, 
 
 Weldon, 
 
 Whitefield, 
 
 Howel V. Howel, 
 Price, . 
 
 Howell V. Howell, 
 
 Howgrave v. Cartier, . 
 
 Howse V. Chapman, . 
 
 Hoye v. Master, . 
 
 Hudson's (Lady) Case, 
 
 92 
 
 . 145, 152, 153 
 . 473 
 . 329 
 . 353 
 . 570 
 . 366 
 142, 349, 356, 453 
 . 73 
 112 
 
 Hughes, Ex parte, 159, 160, 203, 536, 539 
 V. Garth, 
 
 Hughes, 
 
 Stubbs, 
 
 Wynne, 
 Huguenin v. Baseley, . 
 
 512, 514 
 
 . 402 
 
 60, 64 
 
 . 341, 365 
 
 149, 151, 155, 158, 
 
 161, 162, 163 
 
 . 146 
 
 . 433, 434 
 
 . 180, 540 
 
 421,422,424 
 
 PA&E 
 
 Irish Incorp. Society v, Richards, 266, 471 
 Irnham v. Child, 
 
 Moseley, 
 Hulkes V. Barrow, 
 Hulme V. Hulme, 
 Tenant, 
 Humberstone v. Humberstone, 333, 334, 535 
 Hummerston's Case, .... 235 
 
 Humphrey v. BuUen 418 
 
 Hunt V. Matthews, . . . 151,166 
 Hunter v. Atkins, 155, 156, 158, 160, 171, 
 
 162, 537 
 Huntingdon (Earl of) v. Huntingdon, 504 
 Hurley, Ex parte, .... 480 
 Hutcheson v. Hammond, 140, 142, 143, 497 
 
 Hutchens v. Lee, 
 
 Smith, . 
 Hutchinson v. Stephens, 
 
 Townsend, 
 Hyde v. Price, . 
 Hylton V. Hylton, 
 
 I. 
 
 Inchiquin (Lord) v. French 
 Incledon v. Northcote, 
 Inderwick v. Inderwick, 
 Ingleby v. Dobeon, 
 Inkersole, Ex parte, . 
 Inwood V. Twynne, . 
 
 57, 59, 166 
 415,417, 418 
 . 203,292 
 . 519, 546 
 . 427, 524 
 . 157, 158 
 
 350, 354, 355 
 . 358 
 . 65 
 . 457 
 207, 532 
 . 396 
 
 Isaac, Re 
 Isherwood v. Oldknow 
 Ithell V. Beane, 
 Ivie V. Ivie, 
 Ivy V. Gilbert, 
 
 Jackson v. Castor, 
 
 Hobhouse, 
 Hurlock, 
 Jackson, 
 Kelly, 
 Rowe, 
 Jacob V. Lucas, . 
 Jacomb v. Harwood, 
 James v. Allen, . 
 Biou, . 
 Bydder, 
 Dean, . 
 Ex parte, 
 Frearson, 
 Greaves, 
 Jebb V. Abbott, . 
 JefTerys v. Jefferys, 
 
 Small, 
 Jemmitt v. Perril, 
 Jenkins v. Hiles, 
 
 Jenkins, 
 Milford, 
 Jenkins v. Quinchant, 
 
 Re . 
 Jennings v. Moore, 
 Jenour v. Jenour, 
 Jernegan v. Baxter, 
 Jerrard v. Saunders, 
 Jervoise v. Duke 
 
 60, 61, 149, 166 
 
 . 302, 568 
 
 . 481 
 
 . 349 
 
 . 271 
 
 342, 367, 435 
 
 . 167 
 
 . 422 
 
 . 140, 141, 456 
 
 . 377 
 
 . 135 
 
 512, 513, 514, 517 
 
 . 448, 519, 545 
 
 . 166 
 
 116, 132, 133, 454 
 
 . 277 
 
 86, 89 
 
 438, 439, 529, 472 
 
 159, 536, 539, 567 
 
 218, 219 ,309 
 
 146, 150 
 
 . 505 
 
 86, 93, 106 
 
 . 93 
 
 133 
 
 342, 504 
 
 . 247 
 
 273, 384, 429 
 
 . 167 
 
 415, 416 
 
 . 513 
 
 . 568 
 
 . 414 
 
 515, 617 
 
 146, 496 
 
 82,83 
 
 84, 
 
 D. of Northumberland, 65, 81 
 328, 332, 333, 334, 335 
 Silk, 402 
 
 Jevon V. Bush, . 
 
 Jewson V. Moulson, . 
 
 Johnes v. Lockhart, . 
 
 Johnson v. Aston, 
 
 Ex parte, 
 Johnson, 
 
 . 449, 508 
 
 406, 408, 410 
 
 . 420 
 
 . 550, 451 
 
 . 296 
 
 408, 413, 415, 416 
 
 Kenneth, 342, 363, 505, 506, 507 
 Legard 90 
 
 Medlicott, 
 
 Telford, 
 
 Wood, 
 
 Johnston v. Swann, 132, 133, 453, 456, 457 
 
 Joliffe V. East 568 
 
 Jolland 540 
 
 JoUand v. Stainbridge, . . . 510 
 
 Jones V. Croucher, . . .99, 102 
 
 Clough, .... 67 
 
 Jones 272, 545 
 
 Kearney, • . . . . 145 
 
 Laughton 329 
 
 Lewis, . 278, 375, 555, 560, 573 
 Mitchell, . . 135, 136, 142 
 Morgan, . . . 325, 333 
 Powell, . . . 438, 446 
 
 Price, . 342, 343, 473, 476, 504 
 Saye and Sele (Lord), . 230, 232 
 
 Scott 344, 357 
 
 Selby 361 
 
 Smith, . . . 510, 512, 513 
 Stanley, . . . 165, 514 
 
 155 
 
 568, 569, 572 
 143 
 
lii 
 
 TABLE OF ENGLISH CASES. 
 
 PAGE 
 
 Jones V. Suffolk, . . . .501 
 
 Toiin 70 
 
 Waite, 426 
 
 Westcornb 124 
 
 Williams, 345, 346, 347, 453, 456 
 
 Jorlin, Ex parte 461 
 
 Joeselyn v. Josselyn, ., . . 403 
 
 Joy V. Campbell, . . . 313, 530 
 Joyce V. Joyce, , . , . . 212 
 
 Joynes v. Statham 167 
 
 Jubber v. Jubber 65 
 
 K. 
 
 393, 
 
 485, 486, 
 .' 310, 
 
 522 
 395 
 491, 492 
 . 400 
 378, 531 
 438, 439 
 . 196 
 347, 366 
 
 Kaye v. Powell, . 
 Kearsley v. Woodcock, 
 Keates v. Burton, 
 Kebble, Ex parte, 
 Keble v. Thompson, . 
 Keech v. Sandford, 
 Keefe v. Calthorpe, . 
 Keeling v. Brown, 
 Keene v. Deardon, 231, 333, 235, 242, 253, 
 255, 256, 267 
 Kellaway v. Johnson, 369, 382, 483, 521, 
 526, 527, 559 
 
 Kelletl V. Kellett 124 
 
 Kelly V. Power 325 
 
 Kelsall V. Bennett, . . . 512, 513 
 
 Kemp V. Kemp, 69, 70, 484, 485, 486,488, 
 
 492, 493, 494 
 
 Kempton v. Packman, . . . 439 
 
 Kendal v. Granger, . . 81, 133, 454 
 
 Kennedy v. Daly, .. . 164, 509, 517 
 
 Green, . . . 513, 514 
 
 Kingstone, 69, 70, 488, 492 
 
 Kennell v. Abbott, . . 138, 141, 150 
 
 Kenney v. Browne, . . . 516, 539 
 
 Kennerick v. Ld. Breauclerk, . . 232 
 
 Kensey v. Langham, .... 440 
 
 Kensington v. Dolland, . . 406, 421 
 
 Ex parte, . . .530 
 
 Kent V. Burgess, .... 412 
 
 Ex parte 401 
 
 Re 290 
 
 Kentish v. Kentis, . . . 345, 349 
 Keon V. Magawlay, . . 476, 479, 504 
 Kerv. Lord Dungannon, . 158, 161, 539 
 Kerrick v. Barnsby, .... 150 
 Kedney v. Coussmaker, 345, 348, 349, 359 
 Kilbee v. Sneyd, .... 574 
 
 Kildare (Earl of) v. Eustace, . 44, 49 
 Killick, Ex parte, . " . . .420 
 V. Flexney, . 102, 160, 438, 539 
 Kilpin V. Kilpin, . 60, 64, 98, 101 
 
 Kilvington v. Gray 66 
 
 Kime v. Welfitt 400 
 
 Kinchant v. Kinchant, . . . 157 
 
 King V. Coggan, 271 
 
 Cotton, 110 
 
 Denison, 65, 114, 118, 120, 122, 141 
 
 PAGE 
 
 Kingsman v. Kingsman, ? . . 59 
 Kinsman v. Kinsman, . . • ^^i 
 
 Kirk V. Clarke, 543 
 
 Webb, ... . 95, 518, 522 
 
 Kirkbank v. Hudson 456 
 
 Knapp V. Noyes 497 
 
 Williams 456 
 
 Knatchbull v. Fearnhead, 315, 320, 521, 383 
 
 Knight V. Cameron, .... 496 
 
 Knight, 71, 73, 74, 82, 335, 420 
 
 Martin, . . . 278, 555 
 
 Earl of Ply mouth, 42,375,573 
 
 Knightley v. Knightley, ■ . . 345, 360 
 
 Knott, Ex parte, . . 281,326,399 
 
 V. Hill 153 
 
 Wise 272 
 
 Kyne v. Moore, . . . 272, 446 
 
 Kynaston V. Kynaston, . 351,352,354 
 
 Hamlet, 
 
 
 149, 
 
 150, 153 
 
 Hake, . 
 
 
 
 . 366 
 
 King, . . 
 
 . 
 
 
 . 345 
 
 Leach, . 294, 
 
 295 
 
 299, 
 
 301, 302 
 
 Portington, . 
 
 
 • 
 
 . 59 
 
 Re, 206, 208 
 
 109 
 
 294 
 
 301, 568 
 
 Taylor, . 
 
 
 
 . 568 
 
 Turner, . 
 
 , 
 
 
 . 288 
 
 Winstanley, . 
 
 , 
 
 
 . 480 
 
 Kingdom v. Boakes, . 
 
 , 
 
 
 . 515 
 
 Bridges, . 
 
 . 
 
 . 
 
 98, 101 
 
 Lacey, Ex parte, 
 Ladbroke, Ex parte, . 
 Lade v. Holford, 
 Lake v. Craddock, 
 
 De Lambert, 
 
 Lake, 
 Lambert v. Parker, . 
 Lamphier v. Despard, 
 
 Lamplugh, 
 Lancaster v. Thurnton, 
 Lanbon v. Morris, 
 Lane v. Dighton, 
 
 Page, . 
 
 Langford v. Gascoigne 
 
 Langham v. Nenny, 
 
 Sandford, 
 
 Langley v. Brown, 
 
 Hawke, 
 
 Earl of Oxford, 
 
 Sneyd, 
 Langston v. OUivant, 
 Langton's Case, 
 Lanoy v. Duke of Athol, 
 Lansdowne v. Lansdowne, 
 (Lord's) Case, 
 
 158, 159, 536, 539 
 
 . 480 
 
 253,261, 262,327 
 
 93 
 
 193, 197 
 
 . 113 
 
 . 400 
 
 353, 354 
 
 99, 101, 103 
 
 . 236 
 
 . 511 
 
 . 96 
 
 . 146 
 
 310, 373, 527 
 
 . 407, 408 
 
 118, 123, 125, 
 
 126 
 
 . 167 
 
 . 212, 534 
 
 . 356, 505 
 
 . 254, 257 
 
 368, 388, 528 
 
 . 325 
 
 . 364, 409 
 
 . 149 
 
 . 322 
 
 11 
 
 Lavender v. Stanton, 
 
 Law, Re 
 
 Lawless v. Mansfield, 
 
 Shaw, 
 Lawley v. Hooper, 
 Lawley, 
 Lawrence v. Maggs, 
 Re, 
 Lawson v. Hudson, 
 Lawson, 
 Leacroft v. Maynard, 
 Leake, Ex parte, 
 
 V. Robinson, 
 Lear v. Leggett, 
 Lechmere v. Earl of Carlisle 
 Charlton, 
 Lavie, . 
 Lee V. Bennett, . 
 Brown, . 
 Prieaux, . 
 young, . 
 Leech v. Leech, 
 Leeds (Duke of) v. Munday, 
 Lees V. Nutall, 
 Legatt V. Sewell, 
 
 398, 479, 504 
 
 206, 293, 294 
 
 . 160 
 
 . 67, 567 
 
 . 145 
 
 . 267 
 
 . 432 
 
 . 275 
 
 . 357 
 
 . 357 
 
 . 456 
 
 . 532 
 
 135, 401, 404 
 
 395 
 
 83, 267, 449 
 
 . 364 
 
 72, 75 
 
 . 385 
 
 299, 402, 569, 574 
 
 . 406, 420 
 
 377, 484, 488, 495 
 
 95, 96, 274, 368 
 
 . 285 
 
 . 160 
 
 . 330 
 
TABLE OF ENGLISH CASES. 
 
 liii 
 
 PAOE 
 
 . 329 
 71, 79, 452 
 274, 503 
 . 345 
 . 163 
 305, 312, 314 
 498, 500 
 74,75 
 60, 96, 107, 112, 167 
 . 95 
 165, 514, 515 
 . 525 
 328,331,333 
 . 545 
 . 119 
 . 395 
 . 358 
 288, 480 
 70, 172 
 . 155 
 386, 387 
 408, 411 
 . 77 
 . 421 
 . 102 
 374, 523 
 (Countess of) v. Duke of Newcastle, 
 65, 325, 328, 330, 334, 335 
 V. Wright, 309, 314, 315, 373, 383, 
 526, 527, 533 
 
 Legg V. Goldwire, 
 Legge V. Asgill, 
 Legh V. Legh, 
 
 Earl of Warrington 
 Leicester v. Rose, 
 Leigh V. Barry, . 
 Le Jeune V. BudtJ, 
 Le Maitre v. Banister, 
 Leman v. Whitley, 
 Lench v. Lench, 
 Le Neve v. Le Neve, 
 Leonard v. Leonard, . 
 
 Earl of Sussex, 
 Lethbridge v. Mylion, 
 Level V. Needham, 
 Lewes v. Lewes, 
 Lewin v. Okely, 
 Lewis, Ex parte, 
 v. Lewis, . 
 Pead; . 
 Lichfield v. Baker, 
 Like v. Beresford, 
 Liley v. Hey, 
 Lillia V. Airey, . 
 Lilly v. Osborne, 
 Lincoln v. Allen, 
 
 Lindo V. Lindo, . 
 Lindopp V. Eborall, 
 Lindow V. Fleetwood, 
 Lindsell v. Thacker, . 
 Lingard v. Earl of Derby, 
 Listerv. Lister, . 
 Littlehales v. Gascoigne, 
 Lloyd v. Baldwin, 
 
 Branton, 
 
 Lloyd, . 
 
 Read, 
 
 Smith, . 
 
 Spillet, . 
 
 Williams, 
 Lock V. Lock, 
 Lockhart v. Hardy, 
 Loddington v. Kime, 
 Loraax v. Lomax, 
 Long V. Dennis, . 
 
 Long, . 
 
 Ricketts, 
 Longdon v. Simson, 
 Longmore v. Broom, 
 
 Lord V. Bunn, 
 
 Godfrey, 
 Lovegrove, Ex parte, 
 Lovell V. Lancaster, 
 Loveridge v. Cooper, 
 Low V. Barchard, 
 Carter, . 
 Lowden v. Lowden, 
 Lowe V. Manners, 
 Lowry v. Fulton, 
 Lowson V. Copeland, 
 Lowiher v. Carlton, 
 Lowlher, 
 Lucy V. Bromley, 
 
 . 150 
 
 . 349 
 
 . 176 
 
 283, 285 
 
 349, 355 
 
 159, 409, 536 
 
 374, 523, 559 
 
 342, 505 
 
 496, 497 
 
 . 546 
 
 98, 104 
 
 . 544 
 
 95, 560, 562 
 
 339, 340, 359, 410 
 
 . 434 
 
 308, 569 
 
 339, 356 
 
 . 400 
 
 . 495 
 
 . 403 
 
 496, 497, 499 
 
 394 
 
 69, 70, 79, 374, 485, 
 
 486, 492, 523 
 
 395 
 
 380, 390, 483, 495 
 
 . 572 
 
 351, 352 
 
 . 448 
 
 152 
 
 583, 534 
 
 . 522 
 
 . 497 
 
 215,2)8,372 
 
 380, 381,447,564 
 
 165, 514, 517, 580 
 
 . 160 
 
 ... 352 
 
 Ludlow (Corporation of) V. Greenhouse, 198, 
 
 199, 460 
 Lumb V. Milnes, . . 406, 413, 421 
 Lupten V. Tempest 405 
 
 Lush V. Wilkinson, . 
 Luther v. Chamberlen, 
 Lutterell v. Olmins, . 
 Lynch v. Clemence, . 
 Lynn v. Beaver, 
 Lypet v. Carter, 
 Lyse V. Kingdom, 
 
 Lyster v. DoUand, 
 Lyttleton's (Sir Thomas) Case, 
 
 M. 
 
 PAGE 
 
 . 102 
 
 . 195 
 
 151, 163 
 
 . 503 
 
 . 124 
 
 . 361 
 
 278, 279, 280, 518, 
 
 520, 561 
 
 93 
 
 283, 285 
 
 Maberly v. Turton, . 
 M'Call v. Harrison, . 
 M'Carmick v. BuUer, 
 M'Carthy v. Decaise, 
 Macartney v. Blackwood, 
 Maoauley v. Phillips, 
 
 . 402 
 . 173 
 . 414 
 . 147 
 . 424 
 406, 408, 413, 414. 
 415,418,419 
 M'Dermott v. Kealy, . . . 400, 401 
 M'Donald v. Bryce, . . 135, 136, 394 
 M'Donnellv. Harding, . . 372,376 
 M'Fadden v. Jenkins, 57,60, 84, 86,87,89, 
 
 449 
 Macintosh v. Townshend, . 454, 457 
 
 M'Kenzie v. M'Kenzie, . . .337 
 Taylor, . . . 560, 563 
 M'Lean v. Longlands, . . . 407 
 M'Leland v. Shaw, . . 350, 351, 352 
 M'Leod V. Drummond, . . . 166 
 M'Namara V. Jones, .... 572 
 M' Queen v.Farquhar, . . 475,517 
 Maddeford v. Austwick, . . . 148 
 Maddison v. Andrew, 69, 96, 485, 487, 493 
 Maddox V. Maddox, . 165,514,515 
 
 Mahon v. Savage, . . 486, 492, 493 
 (Lord) v. Earl Stanhope, . 474 
 
 Maire, Ex parte, . . . 287, 296 
 
 Maitland v. Bateman, . 381, 414, 447 
 
 Wilson 514 
 
 Major v. Lansley, . . 45, 420, 421 
 Makeham v. Hooper, . . . 468 
 
 Malcolm v. O'Callaghan, . 496,497,499 
 Mahm v. Keighley, ... 71, 76 
 Mallabar v. Mallabar, . 125, 558, 562 
 
 Malpa.s V. Ackland 513 
 
 Man v. Ricketts, . . . .264 
 
 Ward 277, 540 
 
 Manchester (Duke of) v. Bonham, . 568 
 
 Manning's Case 243 
 
 V. Cox, . . . 317, 503 
 
 Spooner, . . . 358 
 
 Mansell v. Mansell, 164, 303, 318, 323, 509, 
 
 516 522 
 
 Mansfield's Case, . . . . ' 154 
 
 Ex parte, . . .208 
 
 V. Magnay, . . .292 
 
 Shaw, . . . .534 
 
 Manton v. Moore, .... 336 
 
 March v. Alt.- Gen 457 
 
 Head 409 
 
 Russell, 266, 378, 382, 528, 583 
 
 Mare, Ex parte, 528 
 
 Margetts v. Barringer, . . . 420 
 
 Markby, Re 395 
 
 Marlborough (Duke of) v. Godolphin, 68. 69, 
 
 70, 490, 495 
 
 School, Re, . . 190, 194 
 
 Marlow v. Pitfield 357 
 
 Smith, . . . .283 
 
 Marriot v. Marriot 150 
 
 Marrow, Re 300 
 
liv 
 
 TABLE OF ENOLISH CASES. 
 
 PAGE 
 
 . 531 
 
 . 371 
 
 432, 438, 508 
 
 . 330, 331 
 
 . 202, 286 
 
 . 394, 578 
 
 . 349 
 
 . 524 
 
 . 531 
 
 . 439, 440 
 
 . 451 
 
 . 411, 418 
 
 . 554 
 
 . 124 
 
 . 230 
 
 69, 71, 76, 79 
 
 376,524,556,564,573 
 
 . 419, 421 
 
 71, 76 
 
 . 567 
 
 361, 363, 364, 453 
 
 . 480 
 
 . 286 
 
 . 457 
 
 . 145 
 
 372, 376, 377, 483 
 
 . 359 
 
 Maundrell v. Maundrell, 261, 324, 325, 326 
 
 Marsh, Ex parte, 
 V. Hunter, 
 Wells, 
 Marshall v. Eousfield, 
 Ex parte, 
 V. HoUoway, 
 M'Avery, 
 Martin v. Blake, 
 Ex parte, 
 V. Martin, 
 Mauham, 
 Mitchell, 
 Persae, 
 Rebow, 
 Marwood v. Darell, 
 Mason v. Limbury, 
 Massey v. Banner, 375 
 Parker, 
 Shearman, 
 Massie v. Drake, 
 Masters v. Masters, 
 Mather v. Priestman, 
 Thomas, 
 Scott, 
 Mathew v. Hanbury, 
 Mathews v. Brise, 
 Maughan v. Masom, 
 
 64, 
 
 Maxwell v. Wettenhall, 
 May V. Selby, 
 Mayo (Earl of) Re, 
 Meacher v. Young, 
 Mead v. Hide, . 
 
 Lord Orrery, 
 Medley v. Horton, 
 Medlicott V. O'Donnel 
 Meekv. Kettlewell, 5 
 Meggison v. Moore, 
 Meinerlzhagen v. Davis, 
 Mence v. Mence, 
 Mercer v. Hall, . 
 Mercers (Mystery of) 
 Meredith v. Heneage 
 Merry, Ex parte, 
 Re, . 
 V. Ryves, 
 Mertins v. Joliffe, 
 Mesgret v. Mesgret, 
 Mestaer v. Gillespie, 
 Meure v. Meure, 
 Meuse v. Howel, 
 Meux V. Bell, 
 Meyer v. Montriou, 
 Meynel v. Massey, 
 Middleton v. Cater, 
 
 Clitherow, 
 
 Dodswell, 
 
 Middleton, 
 
 Spicer, . 
 Midland Counties Railway Company v 
 
 Westcomb 300, 301 
 
 Mildmay v. Hungerford, . . .147 
 
 340 
 
 . 544 
 
 . 193 
 
 . 402 
 
 352, 355 
 
 164, 165, 282, 509 
 
 422, 423 
 
 168, 265 
 
 84, 85, 86, 87, 89 
 
 73, 82 
 
 181, 183 
 
 . 115 
 
 . 497 
 
 Attorney-Gen., 461 
 
 67, 72, 73, 121 
 
 . 397 
 
 . 200 
 
 375, 498, 500, 524 
 
 513, 515, 516, 517 
 
 488, 498, 500, 502 
 
 . 151 
 
 . 331, 332, 333 
 
 335 
 
 272, 307, 428, 448 
 
 . 373, 549, 550 
 
 366, 435 
 
 . 458 
 
 . 456 
 
 . 212 
 
 152 
 
 52, 271, 456 
 
 Miles V. Leigh, 
 
 Weave, . 
 
 Millar v. Craig, . 
 
 Millard's Case, . 
 V. Eyre, 
 
 Miller v. Knight, 
 Horton, 
 
 Milles V. Mills, . 
 
 Mills V. Banks, . 
 Farmer, 
 
 . 361 
 
 191,209,224,227 
 
 . 582 
 
 . 282, 317, 510 
 
 . 190, 191, 195 
 
 . 194, 293 
 
 . 349 
 
 . 393, 436, 438 
 
 343, 355, 367, 475 
 
 128, 131, 450, 451 
 
 PAOE. 
 
 387, 392 
 
 . 400 
 
 . 425 
 
 . 528 
 
 122, 358 
 
 433, 434, 
 
 495 
 
 . 445 
 
 413 
 
 . 468 
 
 • 361 
 
 345, 360 
 
 . 368 
 
 Mitchell, 351,352,365,368,395 
 
 Mills V. Mills, . 
 
 Roberts, 
 
 Milnes v. Busk, . 
 
 Cowley, 
 
 Slater, . 
 Milsington (Lord) v. Mulgrave, 
 
 Milward v. Milward, 
 Minet v. Hyde, . 
 
 Vulliamy, 
 Minor v. Wickstead, 
 Morehouse v. Scaife, 
 Mitchell V. Bower, 
 
 Mitchelson v. Piper, 
 Mitford v. Mitford 
 Mithwold v. Walbank, 
 Mocatta v. Lousada, . 
 
 Murgatroyd, 
 Moggridge v. Thackwell 
 
 548 
 
 408, 409, 415, 416 
 
 . 45 
 
 . 493 
 
 512 
 
 '53, 71, 79, 128, 
 
 130, 131, 450, 451, 452, 461, 486 
 Mohun V. Mohuii, . 551, 565, 566, 567 
 
 Molden v. Menill 
 Mole V. Mole, . 
 Mole V. SiTiith. . 
 Molineux, Re, . 
 Molony v. Kirwan, 
 
 L' Estrange 
 Montacute v. Maxwell, 
 Montesquieu v. Sandys, 
 Montfort (Lord) v. Cadogan 
 
 147 
 
 . 400 
 
 . 252, 327 
 
 . 200 
 
 . 509, 514 
 
 160, 161, 265 
 
 . 57, 166 
 
 . 153, 160 
 
 212, 215, 218, 
 
 382, 433, 434, 520, 526 
 Montgomery v. Lord Bath, . . 519 
 
 Moody, Ex parte 432 
 
 Re 288 
 
 v. Walters, . 318, 319, 320, 323 
 Moons V. De Bernales, . . . 532 
 Moore v. Bennett, . . ■ .513 
 Moore v. Frowd, . 574, 575, 576, 577 
 
 Moore, . . . 423, 428 
 
 Vinten, 206, 207, 292, 295, 300, 304 
 Moorecroft V. Dowding, . .61, 528 
 Moore v. Ellis 426 
 
 Mayhew, . . 165, 514, 515 
 
 Morecock v. iDickens 511 
 
 Mores v. Huish 422 
 
 Morgan, Ex parte, . . . 159, 286 
 
 V. Morgan, . . . 406, 407 
 
 Randall 57 
 
 Morice v. Bishop of Durham, 65, 66, 81, 
 114, 116, 131, 132, 133, 452, 485, 454 
 Morison v. Morison, . • 540, 577, 578 
 Morley v. Morley, . . . 404, 673 
 Morris v. McCuUock, . . .163 
 
 Preston, . . . 177, 186 
 Morse v. Royal, 159, 265, 535, 537, 538 
 
 Sadler, . . . 543, 544 
 
 Mortimer V. Orchard, . . . 515 
 
 Shortall, . . . 150, 167 
 
 West, . . . 361, 362 
 
 Mortlock V. BuUer, 145, 147, 473, 474, 477, 
 
 478, 479, 480, 485, 509 
 
 Morton v. Tewart, ... 61, 64 
 
 Moses V. Levi 313 
 
 Mosely v. Ward, . . . 382, 559 
 Moth V. Attwood, . . . 152, 153 
 Mott V. Buxton, . . . 232, 274, 275 
 
 Mount, Re, 20I 
 
 Mountford v. Scott, . . . 165, 514 
 
 Mountfort, Ex parte 401 
 
 Mouseley v. Carr, 374, 523, 556, 560, 563, 
 
 564 
 
TABLE OE ENGLISH OASES. 
 
 Iv 
 
 Moyle V. Moyle, 
 Moyse v. Giles, . 
 Muckleston v. Brown, 
 JMucklow V. Fuller, 
 
 PAeE 
 
 . 372, 375 
 
 93 
 
 "59, 61, 164, 167 
 
 214, 236, 314, 379, 
 
 381, 383,447, 528 
 
 i . 169 
 
 . 157, 169 
 
 . 118, 120 
 
 97, 104, 105 
 
 Mulcahy v. Kennedy, 
 Mulhallen v. Marum, . 
 Mullen V. Bowman, . 
 Mumma v. Mumtna, . 
 Mumma v. Potomac Company, . 172 
 
 Munch V. Cockerell, 372, 374, 519, 527 
 Munday v. Lord Howe, . . . 402 
 Murless v. Franklin, 97, 100, 101, 104, 105, 
 
 106 
 
 Murray v. Barlee, .... 424 
 
 Lord Elibank, . 407, 418, 548 
 
 Palmer, . . 146, 152, 265 
 
 Murrell v. Cox, 312 
 
 Murthwaite v. Jenkinson, . . 231, 247 
 Museum (Trustees of British) v. White, 
 
 454, 456, 458 
 Muskerry v. Chinnery, . . . 482 
 Myddleton v. Lord Renyon, . . 112 
 Myercough, Ex parte, . .' . 401 
 
 N. 
 
 Nab T. Nab, 
 Nagle V. Baylor, 
 Nail V. Puntor, . 
 Nairn v. Majoribanks, 
 Naldred v. Gilbam, . 
 Nanney v. Martin, 
 Nannock v. Horton, . 
 Napier v. Napier, 
 Nash V. Coates, . 
 
 Morley, 
 
 Nash, 
 
 Smith, 
 Nailor v. Arnitt, 
 
 Winch, 
 Neal V. Dell, 
 
 Neale, . 
 Needham, Re, . 
 Needham's Case, 
 Neeson v. Clarkson, . 
 Negus V. Coulter, 
 Nesbitt V. Tredennick, 
 Nettleship v. Nettleship, 
 Neve V. Bine, 
 Neville v. Saunders, . 
 Wilkinson, 
 New V. Jones^ . 
 Newdigate v. Newdigate, 
 Newell V. Ward, 
 Newland v. Champion, 
 Paynter, . 
 Newman v. Johnson, . 
 Payne, 
 Williams, 
 Newstead v. Searles, 
 Newton v. Bennett, 
 
 239, 
 81, 133, 452 
 
 282, 273, 384 
 147: 
 
 205, 219, 
 
 232, 
 
 165, 
 
 358, 374, 
 
 524, 
 
 Hunt, 
 Newton v. Pelham, 
 
 Preston, 
 Nicholls v. Danvers, 
 
 Gould, 
 
 Nicholls, 
 
 Re, . 
 Nicholson v. Faulkener, 
 Nicloson V. Wordsworth, 216, 224 
 
 . 61 
 
 155, 156 
 
 382, 526 
 
 394, 571 
 
 . 110 
 
 . 416 
 
 . 362 
 
 . 411 
 
 , 240, 241 
 
 , 453, 454 
 
 416 
 
 119 
 
 , 429, 482 
 
 159, 538 
 
 207, 296 
 
 . 150 
 
 , 225, 298 
 
 . 171 
 
 . 513 
 
 . 456 
 
 . 438 
 
 . 425 
 
 . 293 
 
 234, 407 
 
 145, 147 
 
 574, 575 
 
 . 385 
 
 . 355 
 
 . 166 
 
 . 420 
 
 345, 355 
 
 . 160 
 
 . 664 
 
 513, 514 
 
 473, 523, 
 
 556, 560 
 
 . 153 
 
 . 61 
 
 94, 95 
 
 . 412 
 
 . 153 
 
 . 156 
 
 193, 206 
 
 . 553 
 
 , 225, 226 
 
 PAGE 
 
 Nightingale v. Lockman, . . . 416 
 Lawson, . . . 437 
 Nightingale's Charity, Re, 194,199,203 
 Nisbett V. Murray, . . . 124, 568 
 Noel V. Bewley, . . . 253, 257, 262 
 Henley, . . 142,351,362,363 
 
 Jevon 269 
 
 Weston 349 
 
 Noke V. Darby 350, 353 
 
 Norbury v. Chalbeck, . . .562 
 Norbury v. Norbury, . . . 377, 395 
 Norfolk's (Duke of) Case, . . 326 
 V. Brown, . . . 106, 111 
 Norris v. Le Neve, . . 168, 265, 514 
 
 North V. Pardon 124 
 
 Norton v. Turville, . . . .424 
 Norway v. Norway, 224, 227, 228, 547, 566 
 Nourse v. Finch, . . 124, 125, 127 
 Nowlan v. Nelligan, .... 71 
 Nunn V. Wilsmore, .... 340 
 Nurse v. Yerwarlh, . . . 252, 326 
 
 0. 
 
 O'Brien v. O'Brien, . . . .524 
 O'Callaghan v. Cooper, 498, 500, 556, 564 
 
 Odell, Re 206, 294 
 
 O'Ferrall v. O'Ferrall, . . . 432 
 
 OiBey v. Offley, 367 
 
 Oglanderv. Baston 416 
 
 O'Harav. O'Neale, . . 61,94,95 
 
 Okeden v. Okeden, .... 367 
 O'Keefe v. Calthorpe, . . 207, 210 
 
 Oke v. Heath, 136 
 
 Oldfield V. Cobbett 548 
 
 Oldham v. Hand 160 
 
 Litchford, . . . 151, 166 
 
 Oldham v. Slater, . . . .124 
 
 Oliphant v. Hendrie, . . . 454, 457 
 
 Ommaney v. Butcher, 66, 81, 130, 133, 461 
 
 Ex parte, . . 290, 300 
 
 Only V. Walker, 515 
 
 O'Niel V. Lucas, . . . .394 
 Onslow V. Corrie, .... 432 
 
 Orbey v. Mohun 481 
 
 Ord V. Noel, . 281, 282, 479, 480, 477 
 
 Orgil, Ex parte, 209 
 
 Orlebar v. Fletcher 171 
 
 Ormsby, Re 404, 574 
 
 Orr V. Newton, . . . 215, 218, 381 
 Orrok v. Binney, .... 545 
 
 Osborn V. 195 
 
 Ex parte 302 
 
 v. Brown, .... 497 
 
 Fallows, . . . 544, 545 
 
 Foreman, .... 545 
 
 Osbrey v. Bury, 320 
 
 Osmond v. Fitzroy, . . . 154, 155 
 Oswell V. Probert, . 405, 407, 408, 413 
 Overton v. Bannister, . . 373, 526, 581 
 Owen V. Owen, ' . . .51, 186 
 Oxendon v. Oxendon, . . 411, 412 
 Oxford (Earl of) v. Rodney, . . 357 
 
 P. 
 
 Packer v. Packer, .... 414 
 
 Wyndham, . . 406, 416 
 
 Packwood v. Maddison, . . 525, 553 
 
 Pag^ Ex parte, 207 
 
 V. Adam, 342, 362, 363, 504, 505, 506 
 Broom, . . .83, 336, 337 
 
Ivi 
 
 TABLE OF ENGLISH CASES. 
 
 PASE 
 
 Page V. Leapingwell, . 140, 142, 364 
 
 Way, 395 
 
 Paget's (Lord) Case 344 
 
 Paioe V. Archbishop of Canterbury, 114, 
 130, 456, 461 
 Paine v. Hall, 
 Painter, Ex parte, 
 
 51, 
 
 369: 
 
 Palmer, Ex parte, 
 V. Graves, 
 Mitchell, 
 Palmer v. Wakefield, 
 
 Young, 
 Papillon V. Voice, 
 Paris V. Paris, 
 Parker v. Blythmore, 
 Both, 
 Brooke, 
 Burney, 
 Fearnley, 
 Parkes v. White, 158, 317, 422 
 
 Charity, Re, 
 Parnell v. Lyon, 
 Parrot v. Treby, 
 Parry v. Warrington, 
 Parslow V. Weedon, 
 Parsons v. Baker, 
 Dunne, 
 Pascall V. Thurston, . 
 Patten V. Randall, ' 
 Paul V. Compton, 
 Pawcey v. Bowen, 
 Pawlett V. Att.-Gen., 
 
 Parry, 
 Payne v. CoUier, 
 
 Compton, 
 Ex parte, 
 V. Low, 
 Rogers, 
 Peachy v. DuKe of Somerset. 
 Peacock v. Evans, 
 Monk, 
 Peake v. Penlington, 
 Pearse v. Baron, 
 Ex parte, 
 
 v.Newlyn, 167,431, 
 Slocombe, 
 Pearson v. Bank of England 
 Lane, 
 Morgan, 
 Pease v. Hurst, 
 Peat v. Crane, 
 Pechel v. Fovirler, 
 Pelhara v. Anderson, 
 Pember v. Mathers, 
 Pemberton v. Pemberton 
 Penfold V. Bouch, 
 Penn v. Lord Baltimore, 
 Pennefather, Re, 
 Pennington v. Beechey, 
 Penny v. Peacock, 
 
 Pretor, 
 Pentland v. Stokes, . 
 Perham v. Raynall, . 
 Perkins v. Baynton, . 
 Bradley, . 
 Perry v. Knott, 
 
 Phillips, 
 Petit V. Smith, 
 Pete v. Gardiner, 
 Petty v. Styward, 
 Peyton v. Bury, 
 Fhelp, Ex parte, 
 
 164 
 
 209 
 
 . 207 
 
 345, 346 
 
 . 374 
 
 304, 400, 520, 546- 
 
 . 439 
 
 328, 33U 333 
 
 . 386, 446 
 
 . 517 
 
 . 449 
 
 420, 438, 539 
 
 . 293, 295 
 
 354, 361, 362 
 
 425, 538 
 
 . 463 
 
 . 497 
 
 . 375, 565 
 
 . 370, 495 
 
 . 336 
 
 71, 76 
 
 . 413 
 
 . 416 
 
 . 473 
 
 . 71 
 
 . 481 
 
 49, 50, 269 
 
 . 361 
 
 383, 519, 551 
 
 . 517 
 
 •72, 82, 291 
 
 . 402 
 
 . 274, 503 
 
 . 430 
 
 . 153 
 
 . 421, 425 
 
 . 472 
 
 . 4ti2 
 
 165, 209, 568 
 
 512,513,563,564 
 
 339, 341 
 
 . 171 
 
 . 279 
 
 . 146 
 
 . 306 
 
 . 377 
 
 . 480 
 
 . 456 
 
 166, 515 
 
 . 150 
 
 278, 280, 561 
 
 44, 49, 50, 269 
 
 193, 200 
 
 . 515 
 
 . 405 
 
 . 296 
 
 267, 268 
 
 . 306 
 
 374, 523 
 
 165, 514 
 
 521, 546 
 
 ^ 522 
 
 125 
 
 396 
 
 93 
 
 303, 488, 501, 502 
 
 . 439 
 
 47, 
 519, 520, 
 
 383, 518, 
 124, 
 
 PASE 
 
 Philanthropic Society v. Kemp, 364, 457 
 
 Phillipo v. Mannings, 215, 237, 238, 364 
 
 Phillips, Ex parte, . 308, 396, 397, 449 
 
 v. Brydges, . . . 252 
 
 Phillips v. Duke of Bucks, 146, 277, 540 
 
 Paget, . . . 398, 574 
 
 Phillips, . . . 143, 172 
 
 Phipps v. Annesley, . . . 353 
 
 Pitcher, 
 Pickard v. Roberts, . 
 Pickering v. Pickering, 
 
 Lord Stamford 
 Vowles, 
 Picket v. Logyan, 
 
 387, 390 
 
 374, 378, 523, 
 201, 202, 207; 
 
 Pierce v. Scoit, 
 
 Thornley, 
 
 Waring, 
 Piercy v. Roberts, 
 Pierson v. Garnet, 
 
 Shore, 
 Pieschell v. Paris, 
 Piety V. Stace, 
 Pigott, Re, 
 
 V. Green, 
 
 Jefferson, 
 Pilling V. Armitage, 
 Pink V. De Thuisey, 
 Pinkett v. Wright, 
 Pinkusv. Peters, 
 Piper V. Piper, 
 Pitcairn v. Ogbourne, 
 Pitcher v. Toovey, 
 Pitt's (Colonel) Case, 
 Pitt V. Hunt, 
 Platamore v. Staple, 
 Piatt v. Sprig, 
 Piatt, Re, 
 Playters v. Abbott, 
 Plumb v. Fluitt, 
 Plume v. Beale, 
 Plunket V. Penson, 
 Plymouth (Earl of) v. Hickman, 
 Pockley v. Pockley 
 
 284, 432 
 
 152, 156 
 
 . 507, 
 
 . 415, 
 
 431 
 
 Pocock V. Reddington, 
 
 362 
 
 540 
 
 414 
 
 392 
 
 168 
 
 439 
 
 265 
 
 508 
 
 416 
 
 . 157 
 
 . 395 
 
 71,74,76 
 
 . 396 
 
 . 128 
 
 559 
 
 208 
 
 535 
 
 . 357 
 
 . 515 
 
 . 488, 490 
 
 65, 530, 531 
 
 . 545 
 
 . 493 
 
 . 107 
 
 . 432 
 
 . 109 
 
 . 405, 410 
 
 . 108 
 
 . 319, 321 
 
 . 296 
 
 435, 436, 437 
 
 . 512 
 
 150 
 
 358 
 
 61 
 
 357 
 
 369, 374, 382, 495, 
 
 522, 523, 559, 564 
 
 59, 61, 150, 151, 164 
 
 . 99, 104 
 
 . 343 
 
 Podmore v. Gunning, 
 Pole V. Pole, 
 Pollard V. Greenville, 
 PoUexfen v. Moore, . . . 171 
 
 Pollock V. Croft, . . . .498 
 
 Pomfret (Earl of) v. Lord Windsor, 368, 
 
 511 515 
 Poole V. Pass, 272, 279, 34'4, 555, 556, 566 
 
 Poorv. Mial 137 
 
 Pope v. Pope, . . . . 73, 75 
 Whichcombe, . . .493 
 Popham V. Bampfield, . 231,243,353 
 Brooke, . . . 148, 162 
 Portarlington (Earl of) v. Soulby, 
 Portington v. Eglington, 
 Portlock V. Gardner, . 168, 265, 
 
 Portmore (Lord) v. Morris, 
 
 (Earl of) V. Taylor, 
 Portsmouth (Earl of) v. Effingham, . 
 Fellows, 
 
 Potter V. Chapman, 
 Powell V. Att.-Gen., 
 Cleaver, 
 Dillon, 
 Evans, 
 Hankey, 
 Pleydell, 
 
 517 
 155 
 582 
 167 
 153 
 267 
 195 
 
 440, 485, 487, 488 
 455 
 378 
 512 
 447 
 425 
 516 
 
 380, 381 
 
TABLE OP ENGLISH CASES. 
 
 Ivii 
 
 PAGE 
 
 Powell V. Price 353 
 
 Robins, . . . 347, 348 
 Powlet (Earl oft v. Herbert, 314, 377, 381, 
 
 322, 559 
 Powlett V. Att.-Gen 269 
 
 Power V. Bailey, 
 Powis V. Burdett, 
 
 Capron, 
 
 Corbet, 
 Prankerd v. Prankerd, 
 Pratt V. Barker, 
 
 Church, 
 
 Sladden, 
 Prendergast v. Eyre, 
 
 . 424 
 . 366 
 . 475 
 . 358 
 92, 105 
 155, 162 
 . 70 
 . 122 
 203, 204, 281, 290, 
 291, 294, 299 
 . 446 
 . 165, 511, 514 
 . 70, 74, 76, 79 
 . 267, 474, 522 
 . 289, 302 
 . 136, 458 
 345, 347, 350, 358 
 . 208, 296 
 
 Read v. Devaynes, 
 
 LichHeld, 
 
 Read, 
 
 Shaw, 
 
 Sparkes, 
 
 Truelove, 
 Reddington v. Reddington, 
 
 Preston v. Guyon, 
 Tubbin, 
 Prevoet v. Clarke, 
 Price V. Blaketnore, 
 
 Dewhurst, 
 
 Hathaway, 
 
 North, 
 
 Shaw, . 
 
 Prideaux, Re 201, 289 
 
 Pride v. Fooks, . 371, 377, 523, 565 
 
 Pring V. Pring, . . .59, 164 
 
 Pritcnard v. Ames, .... 420 
 
 Arbouin, . . . 457 
 
 Langher, . . . 503 
 
 Juinchant, . . 70, 71 
 
 Prosser, Ex parte, . . . 202, 302 
 
 V. Watts, . . . .513 
 Provost of Edinburgh v. Aubrey, 454, 468 
 Pryce v. Byrn, . . . 168, 265 
 Pryor v. Hill, .... 408, 410 
 Prytharch v. Havard, 293, 295, 300, 301 
 PuUen V. Ready, . . . 149, 497 
 Pulvertoft V. Pulvertoft, . 83, 90, 516 
 Purcell V. M'Namara, . . 169, 265 
 Purden, Re, .... 207, 296 
 Purdew v. Jackson, 411, 414, 415, 416, 418 
 Purefoy v. Purefoy, . . . 336, 339 
 Pusey V. Desbouverie, . . . 149 
 Pushman v. Philliter, . . .7-5 
 Pybus V. Smith, . 233, 422, 425, 523 
 Pye, Ex parte, . . 51,64,84,86,89 
 V. George, 164, 318, 322, 323, 509, 516 
 Pym V. Blackburn 166 
 
 R. 
 
 Radburn V. Jervis, . . . 361,363 
 Radclifle v. Eccles, . . . 287, 296 
 
 Radford v. Wilson 515 
 
 Raikes, Re 306 
 
 V. Ward, . . .65, 66, 70 
 
 Ramsbottora v. Parker, . . . 156 
 
 Ramsden v. Hylton, . . 149. 150 
 
 Langley, . . 567, 572 
 
 Randall V. Bookey 124 
 
 Errington, 168, 265, 527, 536, 537 
 
 Hearle, . . . 66, 72 
 
 Morgan, .... 56 
 
 Russel, 386, 390, 437, 439, 572 
 
 Rankin v. Bernard, . . . .418 
 
 Raphael v. Boehm, 374, 523, 524, 560, 564 
 
 Rashley v. Masters, . .556, 562 
 
 Rastel V. Hutchinson, ... 96 
 
 Rawe V. Chichester, . . 438, 439 
 
 Rawlins v., Goldfrap, . . 401,403 
 
 Jennings, . . .123 
 
 Ray, Ex parte, ..... 420 
 
 159; 
 
 Reech v. Kennigate, 
 Rees, Ex parte, 
 V. Keith, 
 Reeve v. Att.-Gen., 
 Regina v. Pitt, 
 Reid V. Shergold, 
 Remington, Re, 
 Reresby v. Farrer, 
 
 Newland, 
 Revet V. Harvey, 
 Rex V. Coggan, 
 
 Commissioners of Sewers 
 Inhabitants of Essex, 
 Wilson, 
 Reynish v. Martin, 
 Reynolds, Ex parte, 
 V. Jones, 
 Rhodes v. Rudge, 
 Rich v. Beaumont, 
 Cockell, 
 Jackson, 
 Richards v. Chambers, 
 Richards, Ex parte, 
 Richardson, Ex parte, 
 
 V. Bank of England 
 Hulbert, . 
 Small wood, 
 Riddle v. Emerson, 
 Riddle v. Maundevill, 
 Rider v. Kidder, 
 Ridout v. Lewis, 
 
 Earl of Plymouth, 
 Rigby, Ex parte, 
 Rigden v. VaUier, 
 Rigg V. Sykes, . . . .202 
 
 Right dem. Fisher v. Cuthell, . 237, 306 
 Phillips v. Smith, . 233, 235 
 Ripley v. Noysey, .... 568 
 Rippon V. Dowding, . . . 421 
 
 Norton, . . . .395 
 Ritchie v. Broadbent, . . . 414 
 
 Rivers v. Derby 367 
 
 Robarts, and , . 185, 190, 191, 195 
 
 Roberdeau v. Rous 44 
 
 Roberts v. Dixwell, .... 406 
 Kingsley, . . .329 
 
 Roberts, . . 109, 111, 163 
 Spicer, . . . .421 
 Tunstall, . . .168 
 
 Robinson v. Gumming, . . . 524 
 
 Evans 544 
 
 Gee 163 
 
 Grey, . 232, 233, 239, 240 
 Pett, . . . <574, 575 
 Ridley, ' . . . .539 
 
 Smith 485 
 
 Taylor, . . ..119, 217 
 
 Robinson v. 'lickell, . . .398 
 
 Wood, 203, 204, 281, 292, 294, 
 
 295, 299, 300 
 
 Roche v. Hart, . 374, 376, 523, 559 
 
 O'Brien, . . . .538 
 
 Re, . . . 179, 205, 207 
 
 Rochfort V. Fitzraaurice, . 328, 329, 331 
 
 PAGE 
 
 . 535 
 
 . 362 
 
 . 70 
 
 477, 479 
 
 552, 553 
 
 215, 219, 221 
 
 102, 103, 104, 
 
 262 
 
 166, 167, 558, 562 
 
 194, 198, 460 
 
 . 415 
 
 49, 50, 236, 269 
 
 . 209 
 
 477, 479 
 
 . 209 
 
 . 464 
 
 . 365 
 
 . 158 
 
 . 430 
 
 . 570 
 
 . 570 
 
 224, 226 
 
 496, 499 
 
 160, 536 
 
 . 172 
 
 352, 355 
 
 . 421 
 
 406, 420 
 
 . 167 
 
 414, 421 
 
 . 209 
 
 531, 533 
 
 . 549 
 
 227, 547 
 
 . 102 
 
 57, 92, 97 
 
 . 173 
 
 92, 96, 292 
 
 426 
 
 355 
 
 275, 305, 306, 449 
 
 93 
 
Iviii 
 
 TABLE OS ENGLISH CASES. 
 
 PAGE 
 
 Rodney v. Chambers, . . . 427 
 
 Roe V. Street, . . '. . .266 
 
 Rogers v. Earl, .... 167 
 
 Rogers, . . . 121, 124 
 
 Southen 400 
 
 Spillicombe, . 363, 504, 505 
 
 Vasey, . . . 381, 447 
 
 Ronalds v. Feltham, . . 345, 349 
 
 Rooke V. Worrall, . . . 362, 363 
 
 Worth, . . . 396, 397 
 
 Roper V. Halifax, . . 343, 478, 504 
 
 Rose V. Clerk 64 
 
 Cunningham, . . . 361 
 
 Rolls, 413 
 
 Rose 368 
 
 Roseberry v. Taylor, . . . 368 
 
 Ross V. Ewer, 421 
 
 Rothwell V. Rothwell, . . .549 
 Routh V. Howell, . . . 375, 573 
 Kinder, . . 338, 520, 547 
 Rowe V. Jackson, . . .411, 418 
 Rowley V. Adams, .... 432 
 Rudd V. Tucker, . . . .305 
 
 Rudge V. Birch, . . . .274 
 
 Rudyard v. Neirin, . . . .409 
 Rushloy V. Mansfield, . . .153 
 
 Russell V. Clarke's Executors, . 173 
 
 Rutland (Duke of) v. Duchess of Rutland, 
 
 124, 125 
 
 Ryall V. Ryall 94 
 
 Rycroft v. Christy, . 84, 86, 87, 89, 449 
 Ryder v. Bickerton, 168, 369, 376, 382, 526, 
 
 527, 52S 
 
 Ryland v. Smith 415 
 
 Ryley, Re, ... 205, 298 
 
 S 
 
 218, 310, 
 
 528 
 
 123, 
 
 Sadler v. Hobbs, 
 Ex parte. 
 Re, 
 
 V. Turner, 
 Safford, Ex parte, 
 Sale V. Moore, 
 
 Salisbury (Earl of) v. Newton, 
 Salt V. Chattaway, 
 Salter, Ex parte. 
 Saltern v. Melhuish, 
 Salwey v. Salwey, 
 Sammes v. Rickman, 
 Sampayo v. Gould, 
 Samuel v. Jones, 
 Samwell v. Wake, 
 Sanderson v. Walker, 
 Sands v. Nugee, 
 Sandys v. Sandys, 
 Sanford v. Irby, 
 
 Remington 
 Sanson v. Rumsey, 
 Saunders v. Bournford 
 
 Dehew, 
 Saunders, Ex parte, 
 Saunders v. Page, 
 
 Vautier, 
 
 Walker, 
 Sawyer v. Shute, 
 Saye v. Barwick, 
 Saye and Sele (Lord) v. Jones, 
 Scarborough (Earl of) v. Parker, 
 Scattergood v. Harrison, . 
 Scawen v. Scawen, . . 102, 
 Scott V. Beecher, 
 
 176, 
 531, 
 
 159, 
 
 91, 
 
 312, 313 
 
 . 337 
 
 . 275 
 
 124, 381 
 
 . 47 
 
 72, 75 
 
 408, 417 
 
 143, 152 
 
 . 401 
 
 151, 152 
 
 . 409 
 
 557, 560 
 
 212, 485 
 
 533, 568 
 
 350, 353 
 
 536, 559 
 
 . 182 
 
 . 365 
 
 231, 247 
 
 . 515 
 
 . 151 
 
 . 252 
 
 164, 509 
 
 . 532 
 
 . 406 
 
 . 405 
 
 . 539 
 
 . 412 
 
 145, 155 
 
 233, 239 
 
 . 551 
 
 . 574 
 
 104, 105 
 
 . 212 
 
 
 
 
 PASE 
 
 Scott V. Davis, 
 
 
 158, 
 
 537 
 
 Fenhoullet, . 
 
 
 
 326 
 
 LangatafFe, . 
 
 
 
 146 
 
 Surman, 
 
 
 51, 
 
 269 
 
 Tyler, 
 
 
 166, 
 
 496 
 
 Scourfield v. Howes, 
 
 
 310, 
 
 313 
 
 Scriven v. Tapley, 
 
 
 
 418 
 
 Scroope v. Scroope, . 
 
 
 
 99 
 
 Seagrave v. Seagrave, 
 
 
 
 427 
 
 Seale v. Scale, 
 
 
 
 330 
 
 Sear v. Ashwell, 
 
 
 82,83, 88 
 
 Seeling v. Crawley, . 
 
 
 
 426 
 
 Seers v. Hind, 
 
 
 524, 
 
 559 
 
 Seggears, Ex parte, 
 
 
 
 198 
 
 Segrave v. Kirwan, . 
 
 
 
 150 
 
 Seley v. Wood, 
 
 
 
 124 
 
 Sellack v. Harris, 
 
 
 , 
 
 166 
 
 Selaea (Lord) v. Lord Lake, 
 
 
 , 
 
 325 
 
 V. Rhodes, 
 
 161, 
 
 166 
 
 265 
 
 Selyard v. Harris, 
 
 
 . 
 
 547 
 
 Semphill v. Bayley, . 
 
 
 
 496 
 
 Senhouse v. Earl, 
 
 
 
 516 
 
 Sergison, Ex parte, . 
 
 
 283, 
 
 288 
 
 V. Sealey, . 
 
 
 
 396 
 
 Seymour v. Bennett, 
 
 
 441, 
 
 443 
 
 Shaftesbury v. Duke of Marlborough, 
 
 435, 
 
 
 436 
 
 437 
 
 438 
 
 Shakeshaft, Ex parte, 
 
 378, 
 
 521, 
 
 531 
 
 Shales v. Shales, 
 
 
 104, 
 
 106 
 
 Shapland v. Smith, 
 
 232, 
 
 239, 
 
 247 
 
 Sharp V. Sharp, 179, 226, 
 
 227, 
 
 303, 
 
 473 
 
 Shaw V. Borrer, 342, 345, 35: 
 
 ,356 
 
 ,504 
 
 505 
 
 Ex parte. 
 
 , 
 
 260, 
 
 432 
 
 V. Pickthall, 
 
 , 
 
 
 568 
 
 Weigh, . 
 
 , 
 
 
 242 
 
 Sheddon V. Goodrich, 
 
 
 356, 
 
 362 
 
 Shee V. Hale, 
 
 
 , 
 
 395 
 
 Sheffield v. Earl of Coventry 
 
 t 
 
 
 445 
 
 Shelburn v. Inchiquin, 
 
 
 , 
 
 166 
 
 Sheldtnan v. Wildman, 
 
 
 
 263 
 
 Sheldon v. Barnes, 
 
 
 
 114 
 
 Cox, 
 
 165 
 
 510 
 
 514 
 
 Dormer, 
 
 342 
 
 366 
 
 367 
 
 Shelly V. Nash, 
 
 
 , 
 
 153 
 
 Shepherd v. Lutwidge, 
 
 
 
 358 
 
 Mauls, . 
 
 , 
 
 372, 
 
 373 
 
 Smith, . 
 
 
 557, 
 
 562 
 
 Towgood, 
 
 
 344, 
 
 523 
 
 Sheriffe v. Axe, 
 
 
 
 574 
 
 Sherrard v. Lord Harborough 
 
 , . 
 
 119, 
 
 440 
 
 Sherratt v. Bentley, . 
 
 224 
 
 227 
 
 566 
 
 Sherwood, Re, . 574, 575, 
 
 576 
 
 577, 
 
 582 
 
 Shewen v. Vanderhost, 
 
 , 
 
 
 508 
 
 Shick, Ex parte. 
 
 
 208, 
 
 296 
 
 Shiera v. Higgins, 
 Shipbrook v. Hinchinbrook, 
 
 , 
 
 
 156 
 
 310, 
 
 313, 
 
 333, 
 
 
 
 
 373 
 
 Shirley v. Earl Farads, 
 
 336, 
 
 341, 
 
 359 
 
 Sharrocks, Re, . 
 
 201 
 
 207 
 
 209 
 
 Shrewsbury (Countess of) v. 
 
 Earl of 
 
 
 Shrewsbury, 
 
 
 342, 
 
 367 
 
 Shuttleworth v. Howarth, 
 
 
 
 568 
 
 Sidney v. Miller, 
 
 
 
 325 
 
 Shelly, 114, 115 
 
 116 
 
 122, 
 
 139 
 
 Sidney, 
 
 
 
 428 
 
 Silk V. Prime, 
 
 ' 
 
 
 358 
 
 Silvester v. Jarman, , 
 
 
 '. 
 
 285 
 
 Simmons V. BoUand, . 
 
 
 432 
 
 508 
 
 Simms v. Naylor, 
 
 . 
 
 207 
 
 288 
 
 Simon v. Barber, 
 
 
 , 
 
 451 
 
 Horwood. 
 
 
 ] 
 
 420 
 
 Simpson v. Gutteridge, 
 
 
 
 172 
 
TABLE OF ENGLISH CASES. 
 
 lix 
 
 Simson v. Jones, 
 Sisson V. Shaw, 
 Silwell V. Bernard, 
 Skeats v. Skeats, 
 Skinner, Ex parte, 
 Skrymsher v. Nothcote, 
 Slater v. Willis, 
 Slaughter v. Perry, 
 Sleech v. Thorrington, 
 Sloath V. Cadogan, 
 Small V. Atwood, 
 King, 
 
 PAGE 
 
 . 396 
 . 402 
 
 . 388, 390 
 
 97, 98, 100, 105 
 
 198, 199, 460, 465 
 
 . 115, 136 
 . 94 
 . 553 
 . 413 
 
 . 88, 448 
 . 522 
 . 572 
 
 Marwood, 212, 224, 226, 307, 337 
 
 Smallcross v. Finden, . . . 345 
 
 Smart v. Prujean, . . . 355, 362 
 
 Smee v. Martin, .... 402 
 
 Smith, Ex parte, . 210, 308, 449, 531 
 
 V. AttersoU, .... 64 
 
 Baker, .... 92 
 
 Bruning, .... 163 
 
 Camelford, . . .425 
 
 Cawdery, .... 497 
 
 Duke of Chandos, . 277, 540 
 
 Claxton 127 
 
 Clay, . 168, 265, 528 
 
 ~ ■ ■ .318 
 
 . 386 
 
 . 366 
 
 . 90 
 
 363, 504 
 
 . 512 
 
 82, 88 
 
 200, 211 
 
 300, 488 
 
 519, 546 
 
 224, 225, 226, 307 
 
 163 
 
 385 
 
 432 
 
 395 
 
 dem Dormer v. Parkhurst, 
 V. Evans, 
 
 Foley, 
 
 Garland, 
 
 Gwyon, 
 
 Low, 
 
 Lyne, 
 Ex parte, Re Dry, 
 V. Smith, 
 
 221, 
 
 Snow, 
 Wheeler, 
 Smyth V. Aykwell, 
 
 Smyth, 
 Snoulton, Ex parte, 
 Snowden v. Dales, 
 Society for Propagation of Gospel v. Att. 
 
 Gen, 468 
 
 Socket V. Wray, . . . 414, 421 
 
 Sonley v. Clock Makers' Company, 48, 49, 
 
 169 
 Sorrell V. Carpenter, . . .511 
 
 Sorresby v. HoUins, . . 452, 456 
 
 South V. AUeyne, .... 232 
 Southampton (Lord) v. Marquis of Hertford, 
 
 393, 394 
 
 . 124 
 
 . 120 
 
 . 176, 212 
 
 . 370, 379 
 
 476. 479, 504 
 
 342, 343, 505 
 
 . 172 
 
 . 151 
 
 . 358 
 
 336, 337, 340, 
 
 343 
 
 . 57 
 
 . 414 
 
 . 362 
 
 215, 425 
 
 . 418 
 
 218, 219, 221, 223, 224, 
 
 225, 226, 303, 536 
 
 . 169 
 
 409, 414, 495, 496 
 
 . 168, 265 
 
 . 535 
 
 Soulhcott V. Watson, 
 Southouse V. Bate, 
 Southwell V. Ward, 
 Sowerby v. Clayton, 
 Sowersby v. Lacey, 
 Spalding t. Shalmer, 
 Spear v. Grant, . 
 Spencer v. Smith, 
 Spongv. Spong, . 
 Spottiswoode v. Stockdale, 
 
 Spurgeon v. Collier, 
 Spurling v. Rochfort, 
 Spurway v. Glyn, 
 Square v. Dean, . 
 Squib V. Wyn, 
 Stacey v. Elph, 
 
 Stackhouse v. Barnston, 
 Stackpole v. Beaumont, 
 Daveron, 
 Howell, . 
 
 424, 
 
 35 
 
 Stackpoole v. Stackpoole, 
 Stafford v. Lewellyn, . 
 Stamford (Earl of) v. Hobart, 
 Standford v. Marshall, 
 Stangor v. Tryon, 
 Staniforth v. Staniforth, 
 Stanley, Re, 
 
 V. Stanley, . 
 Stansfield v. Habergham, 
 Stanton v. Hall, . 
 Stapleton v. Colville, . 
 Stapleton, 
 Starkey v. Brooks, 
 Starkie, Ex parte, 
 Steinmetz v. Hahhin, 
 Stephens v. Bagwell, . 
 Bateman, . 
 Olive, 
 Lawry, 
 Stephenson v. Hayward, 
 Heathcote, 
 Stettle, Ex parte, 
 Stephens v. Bailey, 
 
 Dethick, . 
 Stewart v. Bruere, 
 Noble, 
 Stewart, 
 St. George v. Wake, . 
 Stickney v. Sewell, 
 Stiff V. Everett, . 
 Stileman v. Ashdown, 
 Stilwell V. Wilkins, . 
 St. John v. Boughton, . 
 
 's College, Cambridge v 
 ton, 
 v. St. John, 
 Stock v. Mawson, 
 Stocken v. Dawson, . 
 Stocken, . 
 Stocker v. Harbin, 
 Stone V. Lidderdale, . 
 
 Theed, . 
 Stoner v. Curwen, 
 Story v. Lord Windsor, 
 St. Paul V. Lord Dudley and Ward 
 Strangg v. Barnard, . 
 
 Smith, 
 Starthmore v. Bowers, 
 Stratton v. Grimes, 
 Straus V. Goldsmid, . 
 Streatfield v. Streatfield, 
 Stretch V. Watkins, . 
 Strickland v. Aldridge, 
 Strode v. Blackburn, . 
 Russell, 
 Winchester, 
 Strong v. Ingram, 
 Stewart v. Lord Kirkwall, 
 Stubbs v. Sargon, 
 Studholme v. Hodgson, 
 Sturge v. Dimsdale, . . . 364, 457 
 Sturgis v. Champneys, . . . 406 
 
 Corp 421 
 
 St. Wenn's Charity, Re, . . . 460 
 
 Styan, Re 448 
 
 Style V. Martin, 511 
 
 Supple V. Lawson 492 
 
 Surman v. Barlow, .... 513 
 Sutton V. Jones, . . 277, 482, 540 
 
 Sharp, . . . 374, 523 
 
 Swan, Ex parte, . . . 206, 296 
 
 Sweet V. Southcote, .... 165 
 
 PAGE 
 
 374, 523, 573 
 
 258 
 
 328 
 
 425 
 
 345 
 
 365 
 
 291 
 
 240, 365, 366 
 
 323, 324 
 
 410, 420, 421 
 
 352, 354 
 
 351, 352, 3.54 
 
 . 124 
 
 . 401 
 
 411, 418 
 
 45, 46 
 
 . 152 
 
 . 426 
 
 401, 494 
 
 336, 337 
 
 1, 353, 354 
 
 . 533 
 
 . 51 
 
 . 365 
 
 . 390 
 
 341, 359 
 
 370 
 
 . 163 
 
 . 368 
 
 . 411 
 
 99, 102 
 
 . 152 
 
 . 504 
 
 . Todding- 
 
 . 460 
 
 164, 426 
 
 . 163 
 
 . 575 
 
 . 402 
 
 354, 361 
 
 . 45 
 
 435, 437, 438 
 
 323, 332, 333, 335 
 
 165, 514, 515 
 
 " ■ 325 
 
 74 
 
 498, 500, 502 
 
 . 163 
 
 . 496 
 
 . 455 
 
 329 
 
 400, 403 
 
 59,61, 164 
 
 271, 272 
 
 . 283 
 
 . 60 
 
 361, 362 
 
 . 424 
 
 64,65, 117,414 
 
 404, 568 
 
Ix 
 
 TABLE OF ENGLISH CASES. 
 
 Sweetapple v. Bindon, 
 Swift, Ex parte, . 
 
 dem. Farr v. Davis, 
 
 Nash, 
 Sydenham v. Tregonwell, 
 Sykes v. Hastings, 
 Sylvester v. Wilson, . 
 Syinance V. Tattam, . 
 Symons v. James, 
 Symson v. Turner, 
 Synge v. Hales, . 
 
 T. 
 
 
 PAGE 
 
 
 330 
 
 
 399 
 
 
 105 
 
 361 
 
 362 
 
 
 137 
 
 277 
 
 540 
 
 
 232 
 
 318, 
 
 319 
 
 347, 
 
 348 
 
 232, 
 
 235 
 
 
 330 
 
 FASE 
 
 Tidd V. Lister, 212, 273, 279, 384, 385, 407, 
 
 429 
 Tiffin V. Tiffin 325 
 
 Tait V. Jenkins, 
 
 
 212, 277, 540 
 
 Northwick, 
 
 341 
 
 350, 353, 359 
 
 Talbot V. Earl of Radnor, . 
 
 . 543 
 
 Tankerville (Earl of) v. 
 
 Faweett, . 357 
 
 Tanner v. Elworthy, . 
 
 
 . 439 
 
 Tarbuck v. Greenall, . 
 
 
 . 544 
 
 Tardifle v. Robinson, 
 
 
 ^. .435 
 
 Tasburgh, Re, . 
 
 
 . 413 
 
 Taster v. Marriott, 
 
 , 
 
 . 439 
 
 Tatlock v. Smith, 
 
 . 
 
 . 336 
 
 Taylor v. Alston, 
 
 
 . 99 
 
 Baker, 
 
 
 . 512 
 
 ■Clark, 
 
 , 
 
 . 379, 390 
 
 George, 
 
 
 . 71 
 
 Glanville, 
 
 196 
 
 , 424, 554, 560 
 
 Haygarth, . 
 
 
 . 270 
 
 Jones, 
 
 
 . 90 
 
 Phillips, . 
 
 , 
 
 . 396 
 
 Radd, 
 
 
 . 167 
 
 Salman, 
 
 , 
 
 . 160 
 
 Shum, 
 
 
 . 432 
 
 Stibbert, 
 
 164 
 
 281, 509, 512 
 
 Style, . 
 
 , 
 
 . 516 
 
 Tarbrum, . 
 
 
 480, 557, 563 
 
 Taylor, 96 
 
 103, 
 
 104, 105, 107 
 
 Wheeler, . 
 
 
 . 530 
 
 Tebbs V. Carpenter, 374 
 
 381, 
 
 429,447,523, 
 
 524, 558 
 
 , 559 
 
 560, 564, 565 
 
 Tierney, dem. Gibbs v. 
 
 Moody, . 232 
 
 Tench v. Cheese, 
 
 , 
 
 . 381 
 
 Tendrill v. Smith, 
 
 
 . 157 
 
 Tenny v. John, . 
 
 
 . 257, 262 
 
 Terrell v. Mathevfs, . 
 
 
 . 312, 313 
 
 Terry v. Terry, 
 
 378, 
 
 396, 397, 403 
 
 Tew V. Earl of Winterton, 
 
 . 524 
 
 Thayer v. Gould, 
 
 . 
 
 . 547 
 
 The Baptist Asso. v. Hart's Executors, 459 
 Thellusson v. Woodford, . . . 456 
 Thetford School Case, . . 128, 451 
 Thorn V. Newman, . . . 252, 327 
 Thomason v. Moses, .... 568 
 Thomas v. Britnell, .... 345 
 
 Thomson, Re, 291 
 
 v. Blackstone, 282, 477, .506 
 
 Grant 286 
 
 Griffin, . . . 401, 402 
 Leach, . 212, 221, 224, 226 
 Simpson, . . 264, 266 
 Thompson, . . 454, 457 
 
 Thong v. Bedford, 
 Thorby v. Yeates, 
 Thorpe v. Owen, 
 Thring, Ex parte, 
 V. Edgar, 
 Thrupp V. Barman, 
 Thynn v. Thynn, 
 Tibbitts V. Tibbitts, 
 
 . 247, 248 
 424, 425, 555, 556, 560 
 51,66, 86,89 
 . 532 
 . 515, 532 
 . 425, 426 
 150, 151,166 
 71, 75 
 
 Timson v. Ramsbottom, 
 Tipping V. Pigott, 
 Titley v. Durant, 
 
 Tolland and , 
 
 Toller V. Carteret, 
 Tollemache v. Earl of Coventry; 
 Tomkyns v. Landbroke, 
 Tomhn v. Hatfield, . 
 Tomlinson v. Dighton, 
 Tompkins v. Tompkins, 
 Tottenham, Re, . 
 Touch v. Lambert, 
 Toulmin v. Stere, 
 Tourville v. Naish, 
 Tower v. Moor, . 
 Towers v. Lord Rous, 
 Townley v. Bedwell, 
 
 Sherbourne, 
 Townshend, Ex parte, 
 
 V. Cams. 
 
 307, 448 
 319 
 427 
 277 
 44 
 333 
 409 
 493 
 421 
 360 
 201 
 124 
 514 
 
 165, 514 
 
 166 
 
 350, 351, 352, 353 
 
 345 
 
 453 
 
 308, 311 
 
 541 
 
 79, 80, 133 
 
 Champerno wn, 253, 256, 260 
 
 Lawlon, . . 319, 322 
 
 (Marquis of) v. Stangroom, 150, 
 
 166, 167 
 
 Townshend, . . 264 
 
 Westacott, . . 102 
 
 Wilson, . 303, 472, 489 
 
 Townson v. Tickell, 212, 221, 223, 224, 225 
 
 Traffi)rd v. Ashton 367 
 
 Boehm, 369, 376, 377, 378, 520 
 Trapp, Re, .... 208, 296 
 
 Trevele v. Coke, 
 Tregonwell v. Sydenham, 
 Trent v. Banning, 
 Trent, . 
 Trevanion v. Mosse, . 
 Vivian, . 
 
 Trevelyan v. Charter, 158, 160, 168, 169, 265 
 Treves v. Townshend, 374, 523, 559, 563 
 Trevor v. Trevor, 
 Trezevant v. Frazer, . 
 Trimleston (Lord) v. Colt, 
 
 Hammil, 
 Trimmer v. Bayne, 
 Trinity College v. Brown, 
 Trott V. Dawson, 
 Vernon, 
 
 Trower v. Knightley, 
 Tucker v. Boswell, 
 Phipps, 
 Tucker, 
 Tudor V. Samyne, 
 TufTnell v. Page, 
 Tullet v. Armstrong,' 
 
 TuUet, 
 Tulloch V. Hartley, 
 Tunstall v. Trappes, 
 Turner v. Corney, 
 Edgell, 
 Harvey, 
 Hind, 
 Ogden, 
 Turner's (Sir Edward) 
 Turner v. Turner, 
 Tutin, Ex parte, 
 Tweddle v. Tweedle, 
 Tweedale v. Coventry, 
 Twine's Case, 
 Twisden v. Wise, 
 
 Case, 
 
 . 432 
 
 135, 137 
 
 . 235 
 
 . 361 
 
 512, 514 
 
 404 
 
 329 
 567 
 368 
 374 
 126 
 
 125, 
 
 . 270, 430 
 
 . 572 
 
 . 345, 360 
 
 . 475 
 
 . 383, 390 
 
 . 151 
 
 274, 317, 503 
 
 . 406 
 
 . 58 
 
 419, 420, 422 
 
 . 395 
 
 59 
 
 .' 165, 514 
 
 541, 344, 573 
 
 299 
 
 146, 147, 148, 149 
 . 544 
 . 452 
 . 406, 410 
 . 149, 400 
 209, 288, 300 
 . 157 
 . 358 
 . 335 
 . 415 
 
TABLE OF ENGLISH CASES. 
 
 Ixi 
 
 Twopenny v. Peyton, 
 Tylden v. Hyde, 
 Tyler v. Lake, . 
 Tyrrell v. Hope, 
 Tyrell's Case, . 
 Tytcher v. Byles, 
 
 PAGE 
 
 . 395 
 . 473, 479 
 406, 420, 421 
 . 420 
 . 230 
 . 492 
 
 U. 
 
 Underbill v. Horwood, . . 150, 152 
 
 Underwood V. Lord Courtown, . .511 
 
 Hatton, . . 548, 549 
 
 Morris, . . . 496 
 
 Stevens, 310, 313, 314, 373, 
 
 374,381, 382,525,527 
 
 Uniacke v. Giles, . . 83, 85, 110 
 
 Re, . . . 206, 219, 225 
 
 Uppington v. BuUer, .... 160 
 
 Urch V. Walker, . . . 215, 217, 219 
 
 Utterson v. Maire, .... 166 
 
 Uvedale v. Patrick 191 
 
 V. 
 
 Valliant v. Diomede 432 
 
 Vandebende v. Levingston, 520, 522, 546 
 
 Van Horn v. Fonda 538 
 
 Vaugban v. Back, . . . 390, 392 
 Farrer, .... 457 
 
 Guy 359 
 
 Tburston, . . 558, 562 
 Vauxhall Bridge Company, Ex parte, 306 
 
 Venables v. Morris, 
 
 Verney v. Verney, 
 
 Vernon, Ex parte, 
 
 V. Keyes, 
 
 Vaudry, 
 
 Vernon, 
 
 Vez V. Emery, . 
 
 Vezey v. Janson, 
 
 Vickers v. Scott, 
 
 Vidal V. Philadelphia (Citizens of), . 459 
 
 Vigrass v. Binfield, 
 Villiers v. Villiers, 
 Vine, Ex parte, . 
 Vose V. Grant, 
 
 W, 
 
 249, 250 
 
 365, 433, 437 
 
 . 288 
 
 . 147 
 
 168, 265, 518 
 
 . 71 
 
 . 555, 572 
 
 116,117, 132 
 
 388 
 
 378, 550, 551 
 251 
 532 
 172 
 
 420, 
 
 Wade V. Paget, . 
 Wagstaff V. Smith, 
 
 Wagstaff, 
 Wain V. Earl or Egmont, 
 Wainwright v. Bendlowes, 
 Waterman, 
 Waise v. Whitfield, . 
 Wait V. Webb, . 
 Wake V. Tinkler, 
 Wakeford, Re, . 
 Wakeman v. Duchess of Rutland, 
 Waldo V. Caley, 79, 80, 131, 133, 
 
 Waldo, 
 Walker, Re, 
 
 V. Burrows, . 
 
 Denne, 
 
 Hardwick, 
 
 Jackson, . 
 
 Meager, . 
 
 Shore, 
 
 Smallwood, 
 
 201, 
 
 345, 350, 
 . 352, 
 
 '. 379, 
 355, 356, 
 
 . 252 
 
 421, 424 
 
 58, 230 
 
 . 340 
 
 353, 354 
 
 . 486 
 
 . 354 
 
 . 456 
 
 274, 316 
 
 201, 289 
 
 281, 544 
 
 466, 493 
 
 385, 477 
 
 289, 297 
 
 . 102 
 
 . 270 
 
 351,353 
 
 353, 354' 
 
 . 358 
 
 390, 474 
 
 505, 548 
 
 PAGE 
 
 Walker v. Symonds, 184, 308, 310, 314, 
 
 315, 373, 378, 382, 383, 
 
 526, 527, 547, 559, 581 
 
 Walker, 59, 166, 485, 486, 487, 
 
 490, 495 
 
 Wetherell, 
 
 Woodward, 
 
 Wall V. Atkinson, 
 
 Bright, . 
 
 Tomlinson, 
 Wallace v. Wallace, 
 Waller v. Childs, 
 Walmesley v. Booth, 
 Walsh V. Gladstone, 
 
 Wallinger, 66 
 Walter v. Hodge, 
 
 Maunde, 
 Walters v. Jackson, 
 Walton, Ex parte, 
 V. Hobbs, 
 Merry, 
 Walton, 
 Walwyn v. Coutts, 
 
 Lee, 
 Wangford v. Wangford, 
 Warburton v. Sandys, 
 
 399, 400, 574 
 
 . 374, 523 
 
 . 531, 534 
 
 . 171, 286 
 
 . 415 
 
 . 157 
 
 452 
 
 153, 160, 527 
 
 . 178, 211 
 
 ,69,70,485,488,492 
 
 . 407 
 
 287, 477, 482, 483 
 
 . 290, 294, 295 
 
 . 207, 209 
 
 . 515 
 
 293 
 
 118, 120, 125, 126 
 
 . 83, 336, 337 
 
 . 272, 512, 514 
 
 . 223 
 
 186 
 
 Vaughan, 203, 204, 281, 299 
 Warburton, 70, 367, 486 
 
 Ward V. Arch, 
 
 Audland, 
 
 Butler, . 
 
 Devon, . 
 
 Lant, 
 Wardle v. Claxton 
 
 Hargreaves, 
 Wardour v. Beresford, 
 Ware v. Horwood, 
 
 Polhill, . 
 Wareham v. Brown, . 
 Waring v. Coventry, . 
 Warnford v. Thompson, 
 Warren v. Davis, 
 Warter v. Hutchinson, 
 Warwick Charities, Re 
 
 v. Warwick, 
 Wasse V. Hesslington, 
 Waterhouse v. Holmes, 
 Wathen v. Grey, 
 Watkins v. Cheek, 
 Watson, Ex parte, 
 
 v. Brickwood, 
 
 Hindsworth Hospital, 
 Earl of Lincoln, 
 
 Toone, 
 Watts V. Ball, 
 
 Girdlestone, 
 
 262 
 
 90, 449 
 
 . 214 
 
 . 473 
 
 . 110 
 
 . 421 
 
 . 195 
 
 . 151 
 
 . 152 
 
 . 396 
 
 70, 355, 486 
 
 475, 532 
 
 357, 471 
 
 347, 362 
 
 239, 240, 241, 367 
 
 188, 194, 554 
 
 165, 514, 516 
 
 . 347, 348 
 
 . 456 
 
 . 357 
 
 363, 506, 507 
 
 . 531 
 
 350, 353 
 
 . 465 
 
 . 136 
 
 159, 169, 265, 539 
 
 . 405 
 
 371,372,378,382, 
 
 474 
 
 Turner, . . . .278 
 Weatherby v. St. Giorgio, . . . 546 
 Weaver v. Maule, . 45, 50, 430, 431 
 
 Webb V. Claverden 150 
 
 Jones 354 
 
 Lymington, . . . 271, 272 
 
 Lord Shaftesbury, 195, 378, 396, 
 
 494,548,570,571,572, 575 
 
 Webb, .... 272,361 
 
 Wedderburn v. Wedderburn, 264, 265, 379, 
 
 525, 526, 527, 528, 581, 582, 583 
 
 Wedgewood v. Adams, . . 282, 508 
 
 Weigall V. Brome 286 
 
 Weiss V. Dill 573 
 
 Welch, Re . . .201, 207, 208, 289 
 
Ixii 
 
 TABLE OE ENGLISH CASES. 
 
 Wellbeloved v. Jones 
 Weller v. Weller, 
 Wellford v. Beezley, 
 Wells V. Middleton, 
 West V. Ayles, . 
 
 Erissey, 
 
 Shuttleworth, 
 
 TAGK 
 
 . &74 
 
 490, 491 
 
 . 512 
 
 . 160 
 
 288, 201 
 
 329 
 
 314, 135, 451, 452, 
 
 455 
 
 VVestley v. Williamson, . . . 551 
 
 Westmeath -v. Salisbury, . . .426 
 
 Westmeath, 426, 427, 492 
 
 Weston V. Banister 580 
 
 Berkely, . . . .515 
 Westover v. Chapman, 369, 374, 562, 565 
 
 Wetherell v. Collins 552 
 
 Wilson 65 
 
 Weymouth v. Boyer, . . 510, 516, 524 
 
 Whaley v. Cox, 362 
 
 Whatley v. Kemp,. .- . . . 329 
 
 Whatfordv. Moore 366 
 
 Wheate v. Hall 473, 474 
 
 Wheatley v. Purr, 51, 60, 64, 83, 86, 89 
 
 Wheeler v. Bingham 496 
 
 Whelpdale v. Cockson, 159, 160, 536, 539 
 Whetstone v. Bury, . . . 230, 235 
 Whichcote v. Lawrence, 158, 160, 266, 536, 
 
 538, 559 
 Whitbread v. Jordan, .... 513 
 
 Whitchurch v. Whitchurch, 
 
 325 
 
 Whitcomb v. Minchin, 
 
 
 160 
 
 Whiting, 
 
 
 306 
 
 White V. Garter, 
 
 '. 331, 333, 
 
 335 
 
 Damon, 
 
 
 152 
 
 Evans, . 
 
 '. 123 
 
 456 
 
 Parker, 
 
 
 188 
 
 St. Barb, 
 
 
 418 
 
 White, 53 
 
 212, 353, 433, 
 
 437, 
 
 
 451 
 
 ,453 
 
 Williams, 
 
 Whiteacre, Ex parte, . 
 
 Whitfield, Ex parte, . 
 
 V. Bennet, . 
 
 Prickett, 
 
 Whitley, Ex parte, 
 
 Re 
 Whitlock's Case, 
 Whitmarsh v. Robinson, 
 Whistler v. Newman, 
 Webb, . 
 Whittingham v. Burgoyne, 
 Whitworth v. Davis, . 
 Whytall V. Kay, . 
 Widdowson v. Duck, . 
 Widmore v. Governors of Queen 
 Ann's Bounty, 
 
 . 125 
 
 . 286 
 
 . 401 
 
 . 385 
 
 . 395 
 
 209, 568 
 
 193, 206 
 
 . 481 
 
 279, 556, 565 
 
 559 
 
 545 
 
 163 
 
 171 
 
 361 
 
 548, 550 
 
 37' 
 
 Wigg V. Wigg, 
 Wigsell V. Wigs 
 
 WoodrofFe, 
 
 451 
 
 ill. 
 
 Wilkes V. Boddington 
 Steward, 
 Wilkes, 
 Wilkins v. Fry, . 
 Wilkinson, Ex parte, 
 V. Adam, 
 Bradfield 
 Malin, 
 Parry, 
 Stafford, 
 Wilkinson; 
 Willan V. Lancaster, 
 
 WiUan, 
 Willats V. Kay, . 
 
 452, 456 
 165,514 
 
 . 326 
 
 . 517 
 369, 378 
 
 . 426 
 356. 479 
 
 . 209 
 361, 362 
 
 . 166 
 308, 468 
 180, 520, 540, 547 
 
 . 378 
 54, 570, 573 
 
 . 347 
 145, 147, 149 
 
 . 413 
 
 
 
 PASE 
 
 Williams, Re . 
 
 
 . 291 
 
 V. Bird, 
 
 
 . 192, 204 
 
 Carter, . 
 
 
 . 472 
 
 Chitty, . 
 
 
 . 119, 345 
 
 Coade, . 
 
 
 . 142 
 
 Jones, 
 
 
 121, 123, 126 
 
 Kershaw, 
 
 81 
 
 132, 133, 364 
 
 Lambe, . 
 
 
 . 517 
 
 Bishop of Landaff, . 351, 354 
 
 Longfellow, 
 
 
 . 228 
 
 Lonsdale, 
 
 
 269, 270, 430 
 
 Nixon, 214, 
 
 308 
 
 309,310, 311, 
 
 
 312 
 
 314 373,381 
 
 Sorrell, . 
 
 
 . 511 
 
 Williamson, Ex parte, 
 
 
 . 532 
 
 V. Codrington 
 
 
 . 107 
 
 Curtis, . 
 
 
 342, 363, 504 
 
 Gihon, . 
 
 
 . 163 
 
 Williamson, 
 
 
 . 90 
 
 Willis V. Hiscox, 278, 
 
 327 
 
 555, 560, 562 
 
 Jernegan, 
 
 
 . 152, 154 
 
 Kibble, . 
 
 
 . 576,578 
 
 Willis, . 
 
 
 92, 94, 95 
 
 Willmott V. Jenkins, . 
 
 
 . 364 
 
 Willoughby v. Willoughby, 
 
 . 324, 326 
 
 Wills V. Sayers, 
 
 
 . 420,421 
 
 Wilson, Re . 
 
 
 . 291 
 
 Wilson V. Troup, 
 
 
 . 538 
 
 Allen, . 
 
 254 
 
 255. 257, 258 
 
 Dennison, . 
 
 
 308, 443, 444 
 
 Dent, . 
 
 
 57, 61 
 
 Goodman, . 
 
 
 . 315 
 
 Halliday, . 
 
 
 . 342 
 
 Hoare, 
 
 
 . 270,430 
 
 Major, 
 
 
 73, 74, 127 
 
 Moore, 
 
 
 . 173, 520 
 
 Wilson, . 
 
 
 195, 426, 561 
 
 Wilvescomb's Case, . 
 
 
 . 466 
 
 Winch V. Keely, . 
 
 
 . 530 
 
 Winchelsea (Earl of) v. Garrety, . 161 
 
 Norcliffe, 377, 396, 
 
 397, 574 
 
 Winchester {Bishop of) v. Fournier, . 515 
 
 Paine, . 511 
 
 Winged v. Lefebury, . . . 164, 509 
 
 Winn V. Littleton, 
 Winnington v. Foley, . 
 
 Winter, Ex parte, 203, 205, 207, 295, 298 
 
 V. Lord Anson, 
 Wiseman v. Beak, 
 
 Westland, 
 Wish, Ex parte. 
 Withers v. Kennnedy, 
 
 Withers, 
 Witter V. Witter, 
 Wilts v. Boddington, 
 Dawkins, 
 Steere, . 
 Wolestoncroft v. Long, 
 Wolfv. Hill, 
 Wood V. Abrey, . 
 Cox, . 
 Downes, 
 Dudley, 
 Dummer, 
 Harman. 
 Richardson, 
 White, . 
 Williams, 
 
 317, 381 
 
 67, 
 
 285 
 319, 321 
 
 514 
 153 
 511 
 207 
 345 
 
 1, 395, 396 
 
 69, 70 
 
 421, 422, 575 
 
 . 446 
 
 329, 357 
 
 . 477 
 
 152, 156 
 
 71, 73, 121 
 
 157, 160 
 
 . 362 
 
 . 172 
 
 . 383, 483, 508 
 
 70, 282, 477, 488 
 
 . 471, 475 
 
 545 
 
 Woodcock V. Duke of Dorset, . . 366 
 Woodhouse v. Hoskins, . 319, 320, 322 
 Meredith, . . .160 
 
TABLE OP ENGLISH CASES. 
 
 Ixiii 
 
 PAGE 
 
 Woodroffev. Burton, . . . .151 
 Woods V. Huntingford, . . . 357 
 Woods, . . .65, 78, 79 
 Woolam V. Hearn, . . . .167 
 WooUands v. Croucher, . . . 414 
 Woolmore v. Burrows, . . 81, 334 
 Worrall v. Haford, . . 565, 567, 570 
 
 Jacob 426 
 
 Marlar, . . . 408,411 
 
 Worrall 426 
 
 Worsley v. Demattos, . . .332 
 
 Earl of Scarborough, 165,511, 
 
 514 
 
 Worthington v. Evans, 307, 489, 498, 499, 
 
 501 
 Wrangham, Ex parte, . . . 460 
 
 Wray v. Steel, 92 
 
 Wren V. Kirton, 376 
 
 Wride v. Clark, 358 
 
 Wright V. Atkins, . 71,72,75,76,78 
 Cadogan, .... 421 
 Lord Dorchester, . 445, 448 
 Morley, 408, 410, 411, 413, 416 
 Pearson, .... 333 
 Proud, .. 156, 158, 159, 160 
 
 Wright V. Row, . 
 
 Rutter, 
 
 Wakeford 
 
 Wright, 
 
 Wyatt V. Sharratt, . 368, 377, 
 Willis, .... 
 Wynch v. East India Company, 
 
 Packington, 
 Wykham v. Wykham, 231, 244, 
 
 Wynch v. Wynch, 
 Wyndham v. Earl of Egremont, 
 Wynne v. Hawkins, . 
 Wymter v. Bold, .... 
 
 PAGE 
 
 139, 456 
 
 . 418 
 
 . 478 
 
 . 44 
 
 550, 551 
 
 369, 375 
 
 268, 504 
 
 119,324 
 
 250, 251, 
 
 385 
 
 . 401 
 
 . 325 
 
 . 75 
 
 365, 366 
 
 Yates V. Compton 236 
 
 Yallop, Ex parte, . . .94, 277 
 Young V. Peachy, 106, 107, 111, 157, 166 
 
 Martin 72 
 
 Younge v. Combe, . . . 374, 523 
 York V. Brown, . . . 565, 566, 575 
 
ERRATA. 
 
 Page 67, 3d line from bottom, for " Got." read " Gill's Rep." 
 
 62, 16th " " " for "11 Dunlap," read " § 11 ; Dunlop." 
 
 66, last " " " after " ante," add « page 48." 
 
 126, 34th « " " for « Balvin v. Johns." read " Baldwin ». Johnson, Saiton, 441." 
 
 169, 2d " " " for " 2 E. & J. Ch., "read " 22 L. J. Ch." 
 
 177, last " " " for"note2, page 66," read "note to page 79." 
 
 231,17th" " " before '■ 14 Penn. St., &c.," insert "10 Barr. 285." 
 
 608,4th " " " for "4 Rand.," read "6 Rand." 
 
 668,21st" " " for "1850," read "1863." 
 
A TREATISE 
 
 ON IHS 
 
 LAW KELATING TO TRUSTEES, 
 
 ETC., ETC. 
 
 INTRODUGTION. 
 
 A Trustee, in the widest meaning of the term, may be defined to 
 be, " A person, in whom some estate, interest, or power in or affect- 
 ing property of any description is vested for the benefit of another."^ 
 
 This definition, however, would include executors and administra- 
 tors, guardians of infants, and committees of lunatics, as well as 
 assignees in bankruptcy and insolvency, and others filling any fidu- 
 ciary situation. It would also extend to bailees, factors, and agents, 
 whose duties in their fiduciary characters are recognised, and en- 
 forced at common law. But the term " trustee" in its more defined 
 acceptation has acquired a meaning distinct from any of those cha- 
 racters ; the persons filling which are also amenable to otner juris- 
 dictions, besides that of the Court of Chancery. It is not intended 
 that those branches of the subject should be objects of discussion in 
 the following pages, which will be confined to the law relating to 
 trustees in the usual and more restricted meaning of the term, 
 against whom the only remedy is by the writ of subpoena issuing 
 from the Court of Chancery. — 
 
 In consequence of the strict construction put upon the Statute of 
 Uses by the judges of the day, the estate of the old feoffee to uses 
 was preserved with little alteration in that of the modern trustee.(a) 
 However, the courts of equity, in the exercise of their new jurisdic- 
 tion, avoided in a great degree those mischiefs, which had made uses 
 
 (a) Bl. Com. 333; Co. Litt. 290, b; Bull. n. I. 3; 2 Fonbl. Eq. B. 2, Ch. 1, 
 s. 4; Hopkins v. Hopkins, 1 Atk. 591. 
 
 4 
 
50 INTRODUCTION. 
 
 intolerable. (6) This new species of estate was gradually modified 
 and altered to meet the continual changes in the state of society, 
 and the progressive wants of the community ; and it has been applied 
 by analogy to personal property, as well as to a great variety of cases 
 which never could have been in the *contemplation of those 
 L -'by whom it was originally introduced. (c) In the existing state 
 of society, it is difficult to conceive how the requisite circulation of pro- 
 perty could be established and maintained without the interposition 
 of some such machinery as the system of trustees readily supplies. 
 The utility of this system, and its adaptation to the wants of the 
 community, is sufficiently shown by its almost universal prevalence. 
 A vast portion of the property of the country is at this moment 
 vested in trustees, and the variety and daily increasing number of 
 associations and institutions, which affisrd an employment for capital, 
 is continually adding to the extent and importance of this branch of 
 our national jurisprudence. 
 
 Courts of equity, from their inherent jurisdiction, assumed from 
 the beginning the exclusive control over trustees in the discharge of 
 their duties, whether affecting real or personal estate.' There are 
 few cases arising from matters of trust (with the exception of bail- 
 ments, and rights founded on contract), of which the courts of com- 
 mon law are capable of taking cognizance. (c?) In the exercise of 
 this jurisdiction certain rules have been established by the practice 
 of the courts ; and it has been remarked by Lord Hardwicke, "that 
 these rules should not be laid down with a strictness, to strike terror 
 into mankind, acting for the benefit of others, and not for their own ; 
 and that as a trust is an office, necessary in the concerns between 
 man and man, and which, if faithfully discharged, is attended with 
 no small degree of trouble and anxiety, it is an act of great kind- 
 ness in any one to accept it! To add hazard or risk to that 
 trouble, and to subject a trustee to losses, which he could not foresee, 
 and consequently could not prevent, would be a manifest hardship, 
 and would be deterring every one from accepting so necessary an 
 office."(e) 
 
 A recent eminent writer on Equity Jurisprudence,(/) whilst ad- 
 
 (6) 2 Bl. Com. 336. («) Knight v. Earl of Plymouth, 1 
 
 (c) 2 Stor. Eq. Jur. § 969. Die. 326; S. C. 3 Atk. 480. 
 
 ' (d) 3 Bl. Com. 431; Co. Litt. 290, b; (/) 2 Stor. Eq. 480. 
 
 Butl. note; 2 Fonbl. Eq. b. 2, Ch. 1; 
 
 2 Stor. Eq.' Jur. i 962. 
 
 ■A court of admiralty, though influenced in the determination of cases by 
 equitable considerations, and taking notice of equitable titles when arising inci- 
 dentally, has no direct jurisdiction over trusts as such ; and where a trust is 
 the foundation for relief, the libellant states himself out of court. Davis ■». 
 Child, Daveis's Rep. 71; Berkhard v. Flyne, 6 Moore Priv. Coun. Cas. 56. 
 
INTRODUCTION. 61 
 
 mitting the propriety of these remarks, adds a doubt, whether the 
 courts of equity have always proceeded upon the broad and liberal 
 basis, which the observations of Lord Hardwicke tend to establish ; 
 and he remarks upon what he terms "the artificial rules" es- 
 tablished by the courts, in the exercise of their control over the con- 
 duct of trustees.(l) However this may *be, it is obviously of p^o-i 
 the greatest importance in the numerous transactions which 
 are of daily occurrence, that the law, as settled by these rules, should 
 be accurately ascertained and universally known ; and this it has 
 been imperfectly attempted in the following pages, to collect and 
 methodize from the several decided cases. 
 
 (1) The author's reference to the page of Story is inaccurate ; it should be p. 
 514, § 1272, et seq. The language of the late learned judge is as follows : — " The 
 true result of the considerations, here suggested, would seem to be, that where 
 a trustee has acted with good faith in the exercise of a fair discretion, and in the 
 same manner as he would ordinarily do in regard to his own property, he ought 
 not to be held responsible for any losses accruing in the management of the 
 trust property, see Hart v. Ten Eyck, 2 Johns. Ch. R. 76; Thompson v. Brown, 
 4 Id. 619, 629, On the contrary, courts of equity have laid down some arti- 
 ficial rules for the exercise of the discretion of trustees, which import (to say the 
 least) extraordinary diligence and vigilance in the management of the trust 
 properly." And then, in order to exemplify the artificiality alleged, he proceeds 
 to quote cases of the investment of trust funds by the trustees in stock or perso- 
 nal securities who were held accountable for a depreciation or loss, although no 
 mala fides existed, and no negligence could be imputed. It is evident that these, 
 not being cases of management of the trust, but investment of the fund, without 
 the aid of the court, do not establish the position of the late Mr. Justice Story. 
 Indeed, all the opinions which he cites and all the doctrine he reasons out, show 
 conclusively that the rules of equity, in the matter of investment, are not arti- 
 ficial, but the reverse ; they are the simple and natural evolutions of the system 
 proposed for the prevention of constructive frauds. In this country, particularly, 
 where trusts of all kinds are sought as a source of emolument, the rules ani- 
 madverted on should be preserved in their most stringent tendency, for they 
 clearly must prevent speculation by the trustee with the funds committed to his 
 care. In England, where allowances to trustees are more restricted, and com- 
 missions are only granted in a few specified cases (vide post, p. 597, 598), there 
 might seem to be some plausible ground for a relaxation of the strictness of the 
 rules ; but in the United States it is best — to adopt the language of the same emi- 
 nent writer, " to act under the direction of a court of equity, which trustees at 
 all times have a right to ask." (2 Sto. Eq. 518, n.) in the matter of lending 
 trust money. — ^T. 
 
[*44] ^PRELIMINARY CHAPTER. 
 
 Before the relation of trustee can be constituted, there must 
 necessarily exist : 1st. A subject-matter proper for a trust ; 2d. A 
 person competent to create the trust ; 3d. One capable of holding 
 property as trustee ; and 4th. A person for whose benefit the trust- 
 property may be held, who is known by the somewhat barbarous ap- 
 pellation of " cestui que trust." 
 
 I,— WHAT MAT BE THE SUBJECT-MATTER OF A TEUST. 
 
 All property of a valuable nature, not only everything that may 
 be legally transferred or disposed of, but also many things which 
 the rules of common law do not recognise as aviailable property, or 
 at any rate do not permit to be dealt with by assignment ; such as 
 choses in action, and possibilities of every description,^ as well as 
 mere naked persons and authorities, may be made the subject-matter 
 of a trust, (a) 
 
 Although the courts of equity in England cannot in suits concern- 
 ing lands situated out of the limits of their jurisdiction make any 
 decree directly affecting the realty,(J) yet they will support a trust 
 
 (a) 1 Cruis.Dig.Tit. 12, Ch. I.;Hob- Carteret i;. Petty, 2 Sw. 323, n. [See 
 
 son i;. Trevor, 2 P. Wms. 191; Wright Bunbury v. Bunbury, 3 Jur. 644,1 
 
 V. Wright, 1 Ves. sen. 41 1. [Wetherhed Beav. 318 ; Bent v. Young, 9 Sim. 190 ; 
 
 V. Wetherhed, 2 Sim. 183 ; Douglass v. Houlditch v. Donegal, 8 Bligh N. S. 344; 
 
 Russell, 4 Sim. 524 ; Langton v. Horton, Portarlington v. Soulby, 3 My. & K. 
 
 1 Hare, 549.] 108; Henderson v. Henderson, 3 Hare, 
 
 (6) E. of Kildare v. Eustace, 1 Vern. 115; Preston v. Melville, 1 5 Sim. 85.] 
 421; Roberdeauw. Rous, 1 Atk. 543; 
 
 ' As to how far possibilities and expectancies are assignable in equity, see 
 Mitchell V. Winston, 2 Story, 630; 6 Bost. Law Rep. 347 ; Letcher v. Schroeder, 
 3 J. J. Marsh. 11 ; Varich v. Edwards, 1 Hoff. Ch. 382 ; Merriweather v. Herraw, 
 8 B. Monr. 162; Story's Equity, § 1040 (b.),1055; 12 Jur. PartH. 213; Notes to 
 Row ti. Dawson, 2 Lead. Cases, Equity, *573. A growing crop of cotton may 
 be the subject of a trust, Robinson v. Maulden, 11 Alab. 980 ; as may the receipt 
 for a medicine. Green v. Folgham, 1 S. & St. 398. 
 
WHAT MAY BE THE SUBJECT-MATTER OF A TRUST. 53 
 
 of such lands against a trustee resident within the jurisdiction by a 
 decree operating in personam.{c) Thus, questions involving trusts 
 of real property in Ireland,(d) in the Island of Sark,(e) and the 
 West Indies, (/) have been entertained by the Court of Chancery 
 here ; and it seems, that a similar jurisdiction would be exercised in 
 the case of lands within the dominions of a foreign state. (^)' 
 
 (c) Penn v. Ld. Baltimore, 1 Ves. 214; E. of Arglasse v. Muschamp, 1 
 sen. 454 ; Com. Dig. (Chancery), 3 Vem. 75. 
 
 X., 4 E., 4 W. 27. (e) Toller v. Carteret, 2 Vera. 495. 
 
 (d) E. of Kildare u. Eustace, 1 Vern. (/) Ld. Cranstoun v. Johnston, 3 
 421; Cartwright v. Pettus, 2 Ch. Ca. Ves. 182.. 
 
 (g-) Angus V. Angus, 1 West. 23.- 
 
 'It is clearly settled in the United States, that in cases of fraud, accident, or 
 trust, equity will interfere, though the property to be affected, be in another 
 state or country, where the principal defendants are served with process, and 
 where adequate relief can be given by a decree in personam. According to the 
 nature of the case, the court will direct the property to be brought within the 
 jurisdiction, order a deed to be cancelled, or a conveyance to be executed, in 
 accordance with the law of the place where the land, if it be such, is situated. 
 Farley v. Shippen, Wythe, 125: Massie v. Walts, 6 Cranch, 148; Ward v. Arre- 
 dondo, 1 Hopk. 513 ; Meade v. Merritt, 2 Paige, 606 ; Howell v. James, 7 Paige, 
 213; Shattuck v. Cassidy, 3 Edw. Ch. 154; De Klyn v. Watkins, 3 Sandf. Ch. 
 185; Barclay i;. Tallman, 4 Edw. Ch. 126; Spear v. Scoville, 3 Cush. 581 ; Sauf- 
 han V. Barclay, 6 Whart. 392 ; Guerrant v. Fowler, 1 H. & Munf. 5 ; Episcopal 
 Church V. Wiley, 2 Hill Ch. (S. C.) 586. It is not necessary to the exercise of 
 this power, that the defendant should be domiciled at the place of the forum ; a 
 bill will be entertained though all the parties be foreigners, and in such a case, 
 a ne exeat may be granted. Mitchellii. Bunch, 2 Paige, 606. So in the case 
 of a resulting trust to heirs-at-law (Hawley v. James, 7 Paige, 213), or of a 
 direction to executors to sell lands in another state, Campbell's case, 2 Bland. 
 209. In Shattuck v. Cassidy (3 Edw. Ch. 154), trustees appointed under an Act 
 of the Legislature of New Jersey, to sell lands in that State, were decreed to 
 execute a contract made by them in New York, with respect thereto. A very 
 decided opinion was expressed by the Vice-Chancellor in Barclay v. Tallman 
 (4 Edw. Ch. 126), where an Insurance Company, incorporated in Maryland, 
 but doing business in New York, made an assignment for the benefit of credi- 
 tors, that a bill would lie against the toustees in New York, for the purpose of 
 protecting and enforcing the trust. It was sufficient that either the person or 
 property was within the jurisdiction. But see Williams v. Maus, 6 Watts, 278. 
 
 But in order to induce the court to interfere in such cases, it must be compe- 
 tent to administer the appropriate equity required by the case, and capable of 
 giving effect to the decree. Bank of Virginia v. Adams, 1 Pars. Eq. 547; Mor- 
 ris V. Remington, 1 Pars. Eq. 397. Where called upon to act directly on the 
 land itself, or to affect the title thereto, it will refuse its aid. Blount v. Blount, 1 
 Hawks, 376; Walkers. Ogden, 1 Dana, 252. In Williams u. Mause, 6 Watts, 
 278, it was held that the appointment of a trustee by the court of another state, 
 in the room of a deceased trustee, to whom land in Pennsylvania had been con- 
 veyed, vested no title in the former. See further on this subject Story's Equity, 
 
54 WHAT MAT BE THE SUBJECT-MATTER OP A TRUST. 
 
 According to the law of England, and of almost every other 
 country, personal property has no locality; but is subject to the 
 law ; which governs the person of the owner. It follows thaf the 
 p;^, C-] foreign personal property of *a British subject may properly 
 '- ■' become the object of a trust, which will be recognised in this 
 country. (A) 
 
 But no valid trust can be founded on an interest derived from an 
 illegal contract, or established in contravention of the general policy 
 of the law.(i) Thus in the case of an officer's half pay ;(Ar) or a 
 goaler's fees ;(Z) or a right to property depending on the issue of a 
 suit then pending ;(m) or any interest, the assignment of which is 
 forbidden by the law on the ground of public policy ;(w) the court 
 will not recognise any trust, which is attempted to be attached on a 
 disposition of such property, — for such a trust would be in direct 
 violation of those rules of law.^ 
 
 Copyholds were not comprised in the Statute of Uses ;(o) but it 
 has long been settled, that they may be subject to a trust ; and the 
 trust will be binding on the lord, if taken notice of on the court 
 
 Qi) Smith. Merc. Law, 567 ; Hill v. (I) Mithwold v. Walbank, 2 Ves. sen. 
 
 Reardon, 2 Russ. 608, 629. 238. 
 
 (i) Exp. Dysler, I Mer. 172; Curtis u. (m) Stevens v. Bagwell, 15 Ves. 156. 
 
 Perry, 6 Ves. 739; Exp. Houghton, 17 [See 4 Kent Comm. 448; andnoteloS 
 
 Ves. 251 ; Campbell v. Thompson, 2 Ves. 494, Sumner's ed.] 
 
 Hare, 140. (n) Stone v. Lidderdale. ubi supra. 
 
 (k) Stone V. Lidderdale, 2 Anst. 533. (o) Gilb. Ten.'l70; Co. Litt. 271, b, 
 
 [See Price v. Lovett, 4 Eng. L. & E. 1 1 0.] n. 1, VIIL 
 
 § 743, 899; Chalmers v. Hack, 19 Maine, 124; Ditohen v. King, 3 J. J. Marsh, 
 186; Ring v. McCoun, 3 Sandf. S. C. 524. 
 
 Though there has been considerable conflict of authority as to the extent to 
 which an executor or administrator is liable to account for assets beyond 
 the jurisdiction, it seems settled that where he is a mere trustee, or as to 
 matters not involved in the administration account, as rents of freehold estate, 
 the locality of the property will be not material. Gardiner v. Fell, 1 Jac. & W. 
 24; Atchison v. Lindsey, 6 B. Monroe, 88; Allsup v. AUsup, 7 Hump. 284. 
 
 ' See notes to Row v. Dawson, 2 Lead. Cas. in Eq., (1st) Am. Ed. Part H. 217, 223 ; 
 Hunter v. Marlboro, 2 W. & M. 168; Murphy v. Hubert, 16 Penn. St. R. 500. 
 
 Where the trusts declared in a deed are divisible into distinct parts, a Court of 
 Equity will exercise a discrimination, so as to uphold them in part, though some 
 of the provisions may be illegal and void. Greenfield's Estate, 14 Penn. S. R. 
 480 ; Dupre v. Thompson, 4 Barb. S. C. 279 ; Lorillard v. Coster, 5 Paige, C. R. 172; 
 Howley t). James, 5 Paige, C. R. 310; 16 Wend. 61; Grout ti. Van Schooneven, 1 
 Sandf. 336; Craftin u. Frith, 3 Eng. E. & L. 162; Vail ■». Vail, 7 Barb., S. C. 226. But 
 where the trusts are indivisible, or the main object of the conveyance or devise is 
 defeated, the whole will be declared void. Arnold v. Gilbert, 3 Sandf. Ch. 532 ; 
 Andrews v. Bible and Prayer Book Soc, 4 Sandf. S. C. 156. In Tritt v. Crotzer, 
 13 Penn. St. R. 451, it was held that a conveyance to a trustee, with the intent 
 to avoid the collateral inheritance tax, vested the estate on the grantor's death, 
 subject to the tax, without invalidating the trust. 
 
WHO MAY CREATE A TRUSTEE. 55 
 
 rolls. (^) Previously however to the passing of the statute 4 & 5 
 Will. IV. c. 23, it seems that copyholds would not have been bound 
 by a trust, in case they had escheated to the lord by the failure or 
 forfeiture of a trustee, where the admission of the trustee was ex- 
 pressed on the rolls to be absolute. (5) But this distinction is done 
 away with by that statute, which empowers the Court of Chancery, 
 in all such cases, to enforce the execution of trusts of copyholds in 
 favor of the parties beneficially interested. 
 
 II.— WHO MAY CREATE A TRUSTEE. 
 
 With regard to the capacity of creating a trustee (independently 
 of any power, conferred by a previous instrument, which will be the 
 subject of future consideration), it may be broadly stated, that every 
 person, who is capable of making a valid disposition of property . of 
 any description, has also the power of attaching such limitations or 
 declarations to the act of disposition, as will convert the person taking 
 the legal estate into a trustee for the parties to whom the beneficial 
 interest is given. 
 
 The estate of the trustee, if created by persons not sui juris, will 
 be valid only to the extent of their legal capacity to convey. 
 
 Therefore an appointment by a feme covert of a trustee of her real 
 estate, must be executed with the formalities required by the recent 
 act for the abolition of fines and recoveries. (1) 
 
 So, where an infant makes over property to a person upon trusts, 
 by any act of assurance, which is voidable only, and not void, the 
 estate of *the trustee will remain good, until the assurance r*4(?-i 
 be avoided.(r)^ Although it might be a question, whether a 
 resulting trust would not arise in such a case in favor of the infant. (s) 
 Previously to the statute 1 Vict. c. 26, an infant of the age of four- 
 
 (p) Burgess v. Wheate, 1 Ed. 232; (r) Co. Litt. 248j a : Hearle v. Green- 
 Weaver V. Maule, 2 R. & M. 97. bank, 1 Ves. 304. 
 
 (9) Ait.-Gen. v. D. of Leeds, 2 M. & («) 4 Cruis. Dig. 130. 
 K. 343. 
 
 (1) But a feme covert, with respect to property settled to her separate use, is re- 
 garded in equity as a, feme sole. She may therefore convey her equitable interest 
 in such property, whether real (Majors. Lansley, 2 R. & M. 355) or personal 
 (Fettiplace v. George, 1 Ves. sen. p. 46), to trustees, for the benefit of herself or 
 others, as effectually as if she were unmarried. [See note, post, page 421.] 
 
 ' 1 Kent, 234 ; Eagle Fire Co. v. Lent, 1 Edw. Ch. 301 ; 6 Paige, 305 ; Ins. Co. 
 V. Grant, 2 Edw. Ch. 544 ; Temple v. Hawley, 1 Sand. Ch. 1 53 ; McGour v. Marshall, 
 7 Humph. 121. The deed of an infant ^me covert, however, is absolutely void. 
 Sandford v. Mehean, 3 Paige, C. R. 117 ; Kenney v. UdaU, 5 J. C. R. 464 ; Schrader 
 V. Decker, 9 Barr. 14. 
 
56 WHO MAT CKEATE A TRUSTEE. 
 
 teen years might have appointed a trustee of personal estate by 
 m\\;{t) but now, by the 7th sect, of that act, it is declared, that no will, 
 made by any person under the age of twenty-one years, shall be valid. 
 
 A person non compos mentis, being in general incapable of dispos- 
 ing of his property by deed or contract, cannot appoint a trustee. 
 But it seems that a feoffment by such a person, with livery of seisin, 
 cannot be avoided by him at law, although his heirs may enter after 
 his death.(M) However, it is conceived (from analogy to the case of 
 a declaration of uses on a fine, levied by a person in a similar state of 
 incapacity), that no declaration of trusts on such a feoffment could 
 be supported in equity, which in such a case would raise a resulting 
 trust in favor of the feoffer. 
 
 Previously to the statute for the abolition of fines and recoveries, 
 if an infant, or an idiot, or lunatic, were permitted to levy a fine, or 
 suffer a recovery, and he made a declaration of its uses, the estate so 
 created would be good at law, until the fine or recovery were re- 
 versed.(a:) But in cases of that nature a court of equity would un- 
 questionably interpose the doctrine of resulting trusts, and would 
 relieve against the parties taking the legal estate, by treating them 
 as trustees for the person making the conveyance.(2/) This, however, 
 applies to the question of the creation of trustees by implication, 
 which will be considered in a future place.' 
 
 Before the Statute of Uses the sovereign might have declared uses 
 upon his letters patent. (2) By common law, and also by statute 39 
 & 40 Geol III. c. 88, he has the power of disposing of his personal 
 estate by will ;(«) and there can be little doubt, but that any decla- 
 ration of trust, made upon a valid legal transfer of property by the 
 sovereign, would be capable of being enforced in a court of equity. 
 Thus, the validity of a grant of the Deccan prize-money, by a war- 
 
 (i) Hearle ^. Greenbank, 1 Ves. sen. (a;) 2 Rep. 58, a; 4 Rep. 124; Bac. 
 
 303 ; Lew. TruBt. 24. Uses, 355; Sand. Us. 214. 
 
 («) Co. Litt. 247, ,b. [See Gibson, (1/) 4 Cruis. Dig. 130; 5 lb. 253. 
 C. J., in Snowden v. Dunlevy, 1 Jones (2) Bac. Us. 66; Sand. Us. 215. 
 
 (Penna.) 525.] (a) 1 Wms. Exors. 11. 
 
 'The principle that a man cannot stultify himself is not in general recognised 
 in the United States. Ballon v. Clark, 2 Iredell Rep, 23 ; Owing's case, 1 Bland. 
 370; Harrison v. Lemon, 3 Black. 51 ; Rice v. Peet, 15 J. R. 503 : Grants. Thomp- 
 son, 4 Conn. 203 ; Bensell v. Chancellor, 5 Whart. 371 ; Alston «. Boyd, 6 Humph. 
 504; 2 Kent Com. 451. The acknowledgment of a deed by a lunatic in open 
 court, is not equivalent in its effect to a fine. Milner v. Turner's heirs, 4 Monroe, 
 245. A lunatic's conveyance is, however, voidable only, and not absolutely 
 void, in the absence of fraud or notice. Breokenridge v. Ormsby, 1 J. J. Marsh, 
 240 ; AUis v. Billings, 6 Mete. 415; Price v. Berrington, 1 5 Jur. 599 ; 7 Eng. L. & 
 E. 259 {sembk); see Molten «. Camrous, 2 Exch. 487; 4 E.xch. 167. Contra, 
 Desilver's estate, 5 Rawle 162 ; and see Bensell v. Chancellor, 5 Wh. 376 ; though 
 this case can hardly be reconciled with Beals v. See, 10 Barr, 60. 
 
WHO MAY CREATE A TKUSTEE. 57 
 
 rant under the royal sign-manual to trustees for certain purposes, 
 was not disputed in a recent case ;(6) although it was determined, 
 that no definite right had been conferred by the warrant upon the 
 cestui que trusts, which could be enforced by them against the • 
 trustees.(l)^ 
 
 In like manner all corporations of every description, subject to 
 the restrictions imposed by the disabling statutes, have at law a 
 general right of alienating their property :(c) and their consequent 
 power of appointing ^trustees, on any disposition made by r^An-i 
 them, is coextensive with this right.(c?)^ 
 
 No alien is capable of holding real property in this country.(e) 
 He has no ability to make a feoffment, grant, or lease ;(/) nor can 
 he confer any legal or equitable right or interest in real estate by 
 contract, or other disposition. An alien enemy, unless residing in 
 this country with the king's license express or implied, is equally in- 
 capable of holding or disposing of any personal property. But an 
 zXien friend vaaj acquire property in goods, money, and other per- 
 sonal estate, except chattels real, with the same powers of disposi- 
 tion as a British subject. He may therefore convey such property 
 upon trusts, either by act inter vivos, or by will.(^/ 
 
 Attainder for treason or felony works a forfeiture of the real estate 
 of the offending party, which has relation backwards to the time 
 when the act was committed ;(A) and it would therefore invalidate 
 any conveyance upon trusts, made by the attainted party subsequently 
 
 (6) Alexander iJ. D. of Wellington, 1 (c) Com. Dig. (Alien), C. 4; 1 Bl. 
 
 E. & M. 35; vide et Stevens u. Bagwell, Com. 371. 
 
 15 Ves. 152. (/) Co. Litt. 42, b. 
 
 (c) Mayor of Colchester tJ.Lovpten, 1 (g) Com. Dig. (Alien), C. 5, 7; 1 
 V.&B. 226. BI. Com. 372. 
 
 (d) Att.-Gen. v. Aspinwall, 2 M. «& (fe) 4 Bl. Com. 380. 
 Cr. 613; Att.-Gen. v. Wilson, 1 Cr. & 
 
 Ph. 1. 
 
 (1) By the statute 39 & 40 George III. c. 88, the sovereign is authorized to grant 
 trust property, v?hich has escheated to the crown, to trustees, for the purpose of 
 executing the trusts. 
 
 ' A State may appoint tru.stees, and convey in trust, Commiss. v. Walker, 6 
 How. Miss. 143 ; but it cannot remove those of a private corporation or appoint 
 new ones. State v. Bryan, 7 Hamra. 82 (pt. 2.) See Dartmouth College v Wood- 
 ward, 4 Wheat. 578. 
 
 2 Catlini). Eafjle Bank, 6 Conn. 233 ; State of Maryland v. Bank of Maryland, 
 6 Got. 206; Dana v. Bank of U. S., 5 W. & S.224; Arthur v. Coram. Bank, 9 S. 
 & M. 391 ; Barry v. Merchants' Exch. Co., 1 Sandf. C. R. 280 ; Hopkins v. Turn- 
 pike Co., 4 Hump. 403 ; Reynolds v. Stark County, 5 Hamm. 207 ; Angell on^ 
 Corporations, 153. 
 
 ' See 2 Kent's Comm. 53. In Legget v. Dubois, 5 Paige, 1 14, it Was held 
 that where an alie.n purchased land in the name of another, there was no result- 
 ing trust. / 
 
 / 
 
58 WHO MAT CREATE A TRUSTEE. 
 
 to the commission of the crime. However, by the statute 54 Geo. 
 III. c. 145, "no attainder for felony, except high treason, petit 
 treason, or murder, shall extend to the disinheriting any heir, nor 
 to the prejudice of any other person than the oifender himself dur- 
 ing his life." It follows therefore, that a bona fide conveyance upon 
 trusts by an attainted person who comes within the operation of that 
 act, would be supported to the extent of any interest given after his 
 decease. ' 
 
 The forfeiture of goods and chattels takes effect on the conviction 
 of the party of treason or felony, and has no relation backwards : 
 therefore a traitor or felon may, if bona fide and for a good consi- 
 deration, convey his personal property to trustees for other persons 
 at any time before his conviction. But if the transaction be collu- 
 sive, the law, and particularly the statute 13 Eliz. c. 5, will reach 
 them, and recover them for the king.(i) 
 
 Outlaws also, though it be but for debt, are incapable during their 
 outlawry, of appointing trustees of their personal property by act 
 inter vivos or will ;(i) for their goods and chattels are forfeited dur- 
 ing that time. 
 
 By the operation of the Bankruptcy Acts,(Z) the whole present 
 property of a bankrupt, as well as what he may acquire before ob- 
 taining his certificate,' becomes ipso facto vested in his assignees by 
 virtue of their appointment. An uncertificated bankrupt is therefore 
 disabled from passing any interest in property, to any other person, 
 either as trustee or otherwise. However, it seems that his right to 
 his allowance, and the surplus of his estate, is an interest that re- 
 mains vested in him with all the incidents of property. (m) It fol- 
 lows, that a bankrupt may make a valid disposition of such an in- 
 terest, either upon trusts or otherwise. 
 
 r*4Qn ^^^ ^ recent act for abolishing arrest on mesne process 
 L -' (1 & 2 Vict. c. 110, s. 2*1), the order of the Insolvent Court 
 made upon the petition of a prisoner, has the effect of vesting in the 
 provisional assignee the whole real and personal estate of the insol- 
 vent, either present, or what he may acquire before he becomes en- 
 titled to his final discharge. An insolvent therefore, subsequently 
 
 (i) 4 Bl. Com. 387; Perkins v. Brad- Q) 6 Geo. IV. c. 16, ss. 63 to 68 ; 1 
 ley, 1 Hare, 219. & 2 Will. IV. c. 56, ss. 25 and 26. 
 
 Qc) 2 Bl. Com. 499; and see Attor- (m) Ex parte Safford, 2 Gl. & J. 128. 
 ney-General v. Richards,- 8 Jurist, 230 ; 
 8 Beav. 380. 
 
 ' Under the 3d Section of the Bankrupt Act of 184], it was heJd that property 
 acquired by a bankrupt between the time of his discharge, an d his certificate, 
 did not pass to the assignees. In the matter of Grant, 5 Bost. Law Rep. 11 ; 2 
 Story, 812; Mosly v. Stell, 7 Alab. 300; see ex parte Newhall, 2 Story, 360. 
 
WHO MAX BE A TRUSTEE. 59 
 
 to such an order, is equally incapacitated •with an uncertificated 
 bankrupt from conveying property to a trustee.^ 
 
 III.— WHO MAY BE A TRUSTEE. 
 
 There is no equitable doctrine more firmly established, than that a 
 trust, once properly created, shall never fail on account of the death, 
 disability, or non-appointment, of the trustee. The court ■will in all 
 cases follow the subject-matter of a trust into the hands of the holder, 
 unless he be a purchaser for valuable consideration without notice, 
 and treat him as a trustee. (?i) 
 
 However, it very rarely happens that a trust is declared, without 
 a contemporaneous appointment of a trustee for its execution, who, 
 unless otherwise incapacitated, will take the legal interest in the pro- 
 perty subject to the performance of the trust. And it may be stated 
 generally, that all persons, who are capable of taking a beneficial 
 interest in property, as well as some others besides, may hold as 
 trustees for other persons.(o) 
 
 Thus femes covert infants, idiots, and lunatics, and other persons 
 who are non sui Juris, may become trustees, subject of course to 
 their legal incapacity to deal with the estate vested in them ; wher- 
 ever that incapacity has not been relieved by the remedies devised 
 by the legislature for that purpose.^ 
 
 And there is no question, but that a husband may hold property 
 as a trustee for the separate use of his wife.(/>) 
 
 When trusts were first introduced, it was held, that none but those 
 who were capable of being seised to an use, could be trustees : this 
 doctrine however has been long since exploded.(g') 
 
 (n) Ait.-Gen. I). Downing, Amb. 550 ; 6 Barb. S .C. 492; Croohteron'W.Jaques, 
 
 Bennet v. Davis, 2 P. Wms. 316; Sou- 3 Edw. Ch. 207; and see post, 171.] 
 
 ley V. Clock-Makers' Company, 1 Br. (o) 2 Fonbl. Eq. 139 n. 
 
 C. C. 81 ; Sand. Us. 349 ; 2 Fonbl. Eq. (p) Bennet v. Davis, 2 P. Wms. 316. 
 
 142, n.; 1 Madd. Ch. Pr. 580 ; Co. Litt. [Shirley v. Shirley, 9 Paige Ch. 363; 
 
 113, a, n. 2, and lb. 290, b, n. 1, VI. Jameson v. Brady, 6 S. & R. 467 ; Boy- 
 
 [Story Eq. Jur. ^976; Sheppard v. Me- kins v. Ciples, 2 Hall Ch. 200 ; Picquet 
 
 Evers, 4 J. C. R. 136; Dawson i). Daw- v. Swann, 4 Mason, 455; Griffith v. 
 
 son, Rice Ch. 243 ; De Baranteu. Gott, Griffith, 5 B. Monr. 113; 2 Kent, 163.] 
 
 (5) 1 Sand. Us. 348. 
 
 ' See Williams v. Chambers, 10 Q. B. 337 ; Rochfort v. Battersby, 2 House of 
 Lords Cases, 388. 
 
 2 Clarke v. Saxon, 1 HillCh. 69; Bradish v. Gibbs, 3 J. C. R. 523; Livingston 
 V. Livingston, 2 J. C. R. 541 ; Dimdas v. Biddle, 2 Barr. 160 ; Eyrick v. Hetrick, 
 1 Harris (Penna.) 494; or one found habitually drunk. Webb v. Deitrick, 7 W. 
 & S. 401. So a nun may be a trustee in Maryland ; Smith^i;. Young, 5 Gill. 197. 
 
60 WHO MAY BE A TRUSTEE. 
 
 Thus it has long been settled, that a corporation may be a trustee 
 in the same manner as an individual. (r)^ And corporations may-to 
 this day be constituted trustees of personal property to the same 
 extent as private persons ;(«) hut in consequence of the Statutes of 
 Mortmain, unless a corporate body possess a license from the crown, 
 it cannot now acquire or hold fresh real estate, either beneficially, 
 or as a trustee for the benefit of others. Thus a devise of lands to 
 a body corporate on trust is void at law, and the legal estate descends 
 r*4qi *'" ^^^ heir-at-law : but the trust, if *sufi5ciently created, will 
 in such a case fasten itself upon the estate, and the heir will 
 be decreed to be a trustee to the uses of the will.(i)^ 
 
 It does not appear to have been ever directly decided, whether a 
 trust could be enforced against any property, either real or personal, 
 in the hands of the sovereign. There are not wanting dicta in 
 
 (r) Green v. Rutherford, 1 Ves. sen. (s) Att.-Gen. v. Ironmongers' Co., 2 
 
 468; Att.-Gen. v. Foundling Hospital, Beav. 313. 
 
 2 Ves. jun. 46 ; Att.-Gen. v. Landerfield, (t) Powley v. Clock-makers' Co., 1 
 
 9 Mod. 287. Bro. c' C. 81. 
 
 ' So in the United States generally. Trustees of Phillips Academy v. King, 12 
 Mass. 546 ; Vidal v. Girard, 2 How. U. S. 187 ; Miller v. Lerch, 1 Wall, jr. 231 ; 
 Columbia Bridge Co. v. Kline, Bright. N. P. 320; Angell on Corp. 124. If the 
 trusts be repugnant to or inconsistent with the proper purposes for which the cor- 
 poration was created, it has been ruled by the Supreme Court of the United 
 States, that though it may not be compellable 'to execute them, they will not there- 
 fore be held void ; a new trustee will be appointed. Vidal v. Girard, vbi sup. In 
 New York, however, a different, rule has been adopted, at least with regard to 
 charitable uses. It has been there held that where a legacy is given to a cor- 
 poration in trust for an authorized pious use, and also for a use foreign and 
 extrinsic to those which the corporation can execute by law, the trust, being 
 entire and indivisible, is entirely void ; and the trust results to heir-at-law. An- 
 drews V. Bible Soc, 4 Sandf. S. C. 156; Ayresii. Methodist Ch., 3 Sandf. S.C. 
 352. In Pennsylvania an unincorporated society may be trustee for a charity, 
 Pickering v. Shotwell, 10 Barr. 27 ; Magill v. Brown, Bright. N. P. 350. So in Mas- 
 sachusetts it has been ruled that a legacy to an unincorporated association, with 
 a'direction that it should go to the treasurer for the time being, is good. Tucker 
 V. Seaman's Aid Society, 7 Mete. 188. The Statutes of Mortmain are not adopted 
 in the United States in general (2 Kent Com. 282); but were declared to 
 be in force in Pennsylvania by the Report of the Judges, 3 Binney App. 626; 
 and assumed to be so in several Acts of Assembly, particularly that of April 6th, 
 1833; though this has been denied, Vidal ^. Girard, 2 How. 187; Magill i;. Brown, 
 Bright. N. P. 350, But at any rate, a purchase of land by a corporation will be 
 good against all but the State, even under the Act of 1833. Runyan v. Coster's les- 
 see, 14 Pet. 122 ; Miller v. Lerch, 1 Wall, jr. 321 : Leazure v. Hillegas, 7 S. & R. 
 321. 
 
 ''In Mitchell v. Reynolds, 1 Phill. 185, it was held that the Governor-General 
 of India, and in Nightingale v. Gouldburn, 2 Phill. 594; 5 Hare, 484, that the 
 Chancellor of the Exchequer of England for the time being, might be respec- 
 tively trustees for public charitable uses. 
 
WHO MAT BE A TRUSTEE. 61 
 
 favor of tlie affirmative of this proposition. Thus, in Penn v. Bal- 
 timore, Lord Hardwicke, after observing that the Duke of York, 
 while a subject, was to be considered as a trustee; adds, "why not 
 afterwards as a royal trustee ? It is a notion established in courts 
 of revenue by modern decisions, that the king may be a royal trus- 
 tee."(M) And apparently, on the authority of these cases, it has 
 been laid down in treatises of established authority, that the king 
 may be a trustee.(a;) In the great case of Burgess v. 'Wheate,(«/) 
 the Master of the Rolls (Sir Thomas Clarke) draws a distinction be- 
 tween trust estates vested in the crown by escheat, and those to 
 which it becomes entitled by forfeiture. He says, " the crown takes 
 an estate by forfeiture, subject to the engagements and encum- 
 brances of the person forfeiting. The crown holds in this case as a 
 royal trustee. But in general, I apprehend an escheat is taken free 
 from any equitable claim. "(2) Lord Mansfield, in his judgment in 
 the same case, supports the position, that failing the heirs of the 
 trustee, the king would take the estate^ in a court of equity subject 
 to the trust ;(a) but the Lord Keeper (Lord Northington) declined 
 giving an unnecessary opinion on that point. ((£) With regard to 
 the question, whether the king upon a legal estate should be liable 
 to an equity of redemption ? that learned judge observed, " I do 
 not know that it has ever been so determined. Lord Hale thought 
 the king should, because it is an ancient right, which the party is 
 entitled to in equity. Baron Atkyns thought the same, because he 
 saw the same equity against the crown, as against a common per- 
 son. (e) Yet it is observable, that there is in that case (Pawlett v. 
 Attorney-General) a recognition of the iequity without any declara- 
 tion of the remedy. Whether this remedy has since been settled in 
 the Exchequer, where alone it can, I really do not know ; but I hope 
 it is so settled, for I see a great deal of equity to support the opi- 
 nion of Hale and Atkyns. I hope that there is no equity, that the 
 subject is not entitled to against the crown. But I own, upon very 
 diligent inquiry and consideration of the case, I at present think 
 the arms of equity are very short against the prerogative. "(c?) 
 
 It will be observed, that the several dicta in favor of the existence 
 of this equity against the crown are all extrajudicial; and the 
 judges, while advocating the right, declare their incapacity to en- 
 
 (u) Penn v. Ld. Baltimore, 1 Ves. (y) 1 Ed. 177. 
 
 sen. 453; vid. et E. of Kildare v. Eus- {z) Burgess v. Wheate, 1 Ed. 203. 
 
 tace, 1 Vern. 439; re Roberts, 3 Atk. (a) Id. 229. 
 
 309. (6) Id. 246. 
 
 (z) 1 Saund. Us. 349 ; 1 Cruis. Dig. (c) Pawlett v. Att.-Gen., Hard. 467. 
 
 403. (d) Burgess v. Wheate, 1 Ed. 255-6. 
 
62 WHO MAY BE A TRUSTEE. 
 
 force It(e) in a suit against the sovereign. In two instances, -where 
 it became necessary to decide the point, the relief was refused. (/)^ 
 r-^rn-i *However, in consequence of the alteration of the law by 
 '- -' statute, the question with regard to trust property, vested in 
 the crown by escheat, cannot now arise. By the statute 39 & 40 
 Geo. III. c. 88, s. 12, the sovereign, in case of the escheat of trust 
 property, was empowered to make grants of it to trustees, for the 
 purpose of executing the trust ; and by the recent act for the amend- 
 ment of the law relating to the escheat and forfeiture of real and 
 personal property held in trust,(^) a still -more effectual remedy is 
 provided ; for by the 2d and 3d sections of that act, no trust pro- 
 perty will in future be the subject of escheat in any case, in conse- 
 quence of the failure or forfeiture of a trustee; and the 6th sect, 
 provides, that in all cases of that nature, which may have already 
 occurred, the trust property shall be under the control of the Court 
 of Chancery, for the use of the parties beneficially interested.^ 
 
 With regard to trust property becoming vested in the person of 
 the sovereign by descent, or representation to the original trustee, 
 
 (e) Pawlett V. Att.-Gen., Hard. 469; Hodge v. Atty.-Gen., 3 Young & Coll. 
 
 Burgess v. Wheate, 1 Ed. 255 ; Penn 342 ; Giles v. Grovey, 6 Bligh, N. S. 
 
 V. Ld. Baltimore, 1 Ves. sen. 453. 392 ; but see Prescott v. Tyler, 1 Jur. 
 
 (/) Pawlett V. Att.-Gen. Hard., 467; 470; Casbord v. Ward, 6 Price, 44.] 
 
 Reeve v. Att.-Gen., 2 Atk. 223. [See (g-) 4 & 5 Will. IV. c. 23. 
 
 ' By the Revised Statutes of New York (part I., ch. 1, art. 1, § 2, 3d ed.), it is 
 provided that all escheated lands, when held by the State or its grantees, shall 
 be subject to the same trusts, incumbrances, &c., as they would have been had 
 they descended ; and the Court of Chancery is empowered to direct the attorney- 
 general to convey the lands to the parties equitably entitled, or to trustees. See 
 Mason v. White, 6 J. C. R. 360, 367 ; Farmers' Loan Co. v. The People, 1 Sand. 
 Ch. 139. So in Virginia by the Code of 1849 (tit. 32, ch. 113, ^ 26), an estate 
 vested in a person by way of mortgage or trust, is not to escheat or be for- 
 feited, merely by reason of his being an alien or dying without heirs. In Penn- 
 sylvania, the Act 29th Sept. 1787^ llJDunlftp, 3d ed. 163, provides that in case of 
 escheat the estate is to take no other or greater title than the person dying intes- 
 tate had. And in most of the other States the conclusion appears to be, from 
 their statutes on the subject, that escheated lands would be held subject to the 
 trusts. 4 Kent Comm. 425; 1 Greenleaf's Cruise, 417, note 1 ; Casey's lessee v. 
 Inloes, 1 Gill. 507; Matthews v. Ward, 10 G. & J. 443. In O'Hanlin v. Dew, 
 1 New Jersey, 31, it was, however, held, that the real estate of an intestate dying 
 without heirs vested immediately in the State, and that the Orphans' Court had 
 no jurisdiction to order a sale for the payment of debts of the former owner; and 
 see Congregational Church v. Morris, 8 Alab. 193. 
 
 ^Now by the " Trustee Act of 1850," (13 and 14 Vict. c. 60, Sect. 15), where 
 a trustee dies without heirs, or the heirs are not known, the court may make an 
 order vesting the estate in a new trustee; and, by Sect. 46, in cases of attainder 
 or forfeiture of a trustee of lands or chattels, the legal estate shall not escheat, 
 but a new trustee shall be appointed ; except (Sect. 47) so far as the trustee had 
 a beneficial interest. 
 
WHO MAT BE A TRUSTEE. 63 
 
 or which he may have held as trustee previously to his acquiring the 
 crown ; and also in the improbable case of his being personally ap- 
 pointed a trustee ; it would appear that the question, whether he 
 would or would not hold subject to the trust, still remains open.(A) 
 
 All the principles of equity seem to be in favor of the right of the 
 cestui que trust in such cases. The arguments of the Master of the 
 Rolls (Sir Thomas Clarke), in his elaborate judgment in Burgess v. 
 Wheate, in favor of the lord by escheat not being bound by a trust, 
 are founded mainly on the nature of the tenure of property by 
 escheat, and do not apply to the cases now under consideration. 
 The observations of Lord Hardwicke, in Penn v. Lord Baltimore,(i) 
 go directly to support the equity against the crown ; and it may be 
 observed in support of it, that it is admitted that the sovereign may 
 be constituted an executor •,{k) and in that character he will of course 
 hold property upon trust. 
 
 However, the existence of this right against the sovereign does 
 not seem to have been ever judicially determined, still less the mode 
 of enforcing it. This, if any, would appear to be by a petition of 
 right in the Court of Exchequer ;(?) or in future in the Court of 
 Chancery, since the transfer of the equitable jurisdiction of the Ex- 
 chequer to that court by the recent statute. (?n) 
 
 Previously to the passing of the statute 4 & 5 Will. IV. c. 23, the 
 question, whether a subject — taking trust property, on the failure or 
 forfeiture of the trustee, as lord by escheat — would be bound by the 
 trust does not seem to have been settled. Cases are not wanting, 
 which support the claims of the cestui que trust under such circum- 
 stances, (w) It is clear, that if the lord had in any way recognised 
 the existence of the trust, as, for instance, by admitting the trustee 
 to a copyhold tenement upon trusts expressed in the admission, he 
 would hold as trustee *for the parties beneficially entitled.(o') rHcc-i-i 
 But the weight of authority seems to have been in favor of the 
 lord's taking in these cases discharged from any trust, which he had not 
 recognised, (^) as in the case of a. mortgagee admitted absolutely to a 
 copyhold, and dying without heirs. (5') However, the equity of the 
 cestui que trust is now clearly established against the lord, by the 
 
 (fi) See Penn v. Lord Baltimore, 1 (n) Geary v. Bearcroft, Cart. 67; 
 
 Ves. 453. Esles v. England, Prec. Chan. 200; 
 
 (i) 1 Ves. sen. 453; vid. et Hoven- Burgess i>. Wheate, 1 Ed. 230. 
 
 den V. Ld. Annesley, 2 Soh. & Lef. 617. (0) Weaver v. Maule, 1 R. & M. 97. 
 
 (ifc) 1 Wms. Exors. 113. (p) Stephens •». Bailey, Nels. 107; 
 
 (/) Cora. Dig. (Prerogative), D. 79; Harg. Jur. Ex. vol. i. 390; 2 Fonbl. Eq. 
 
 Pawlett V. Attorney-General, ubi sup.; 170, n.; 3 Cruis. Dig. 418. 
 
 Reeve v. Attorney-General, uU sup.; (5) Attorney-General v. D. Leeds, 2 
 
 Burgess v. Wheate, 1 Ed. 255. M. & K. 343. 
 
 (m) 5 Vict. 0. 5, s. 1. 
 
64 WHO MAY BE A TRUSTEE. 
 
 recent statute ; and the question therefore cannot be the occasion of 
 any future difficulty.^ 
 
 It seems that an alien may take lands, or hereditaments, by pur- 
 chase or otherwise, but that on office found they go to the king.(j-)= 
 It might, therefore, before the statute 4 & 5 Will. IV. c. 23,^ have 
 been a question, whether, if real estate were conveyed to an alien as 
 a trustee, the legal estate would not have passed by the conveyance, 
 and escheated to the crown, on office found, discharged of the trust. 
 However, without doubt, an alien friend may well become a trustee of 
 such personal chattels as the law allows him to hold. 
 
 Previously to the recent statute 4 & 5 Will. IV. c. 23, traitors, 
 felons, and outlaws, during the continuance, and to the extent of 
 their incapacity to be the holders of property, were also incapable of 
 being trustees ; but by the 3d section of that act the disability of 
 such persons to hold property upon trust has been removed. 
 
 Trust property vested in a bankrupt, according to the construc- 
 tion put upon the Bankruptcy Acts, does not pass to the assigns ;(«) 
 and by an analogous construction, an assignment by an insolvent un- 
 der the statute 7 Geo. IV. c. 57, or since the passing of the statute 
 1 & 2 Vict. c. 110, an order of the Insolvent Court under the 27th 
 section of this act, would not pass property vested in him as a 
 trustee.(^) The legal estate therefore in trust property, vested in a 
 bankrupt or insolvent, previously to his bankruptcy or insolvency, 
 remains in him unaffected, until it be divested by legal transfer ;(m) 
 and d fortiori' such, persons have incurred no legal incapacity to pre- 
 vent them from taking property of any description, conveyed to 
 them subsequently as trustees, in case any one should be disposed to 
 place such confidence in them. 
 
 A person by a proper declaration may convert himself into a trus- 
 
 (r) Co. Litt. 2, b ; Com. Dig. (Alien), 25 ; Ontario Bank v. Mumford, 2 Barb. 
 
 C. Ch. 596 ; Hynson v. Bartin, 5 Pilce, 
 
 (s) Scott V. Surman, Willes, 402 ; 492.] 
 
 Carpenter i). Marnell, 3 B. & P. 40 ; (() Lewin, Trust. 258. [So in the 
 
 Gladstone v. Hadwen, I'M. & S. 526: United States, Kip. v. Bankof N.Y., 10 
 
 Exp. Gennys, 1 IM. & M. 258. [See post, John. 63 : Kennedy v. Strong. Id. 289 ; 
 
 269, 304, 530 ; Kip v. Bank of N. Y., 10 Clarke v. Minot, 4 Mete. 346.] 
 
 Johns. 63 ; Blin v. Pierce, 20 Verm. (u) Exp. Painter, 2 Deac. & Ch. 584. 
 
 'See Evans v. Brown, 5 Beav. 114; Viscount Downe v. Morris, 3 Hare, 394. 
 
 2 See Fairfax t). Hunter, TCranch. 621; Smith w Zaner, 4 Alab. 99; Vaux i). 
 Nesbit. 1 McCord, Ch. 352 ; Montgomery v. Derian, 7 N. H. 475; Craig v. Rad- 
 ford, 3 Wheat. 594; Clifton v. Haig, 4 Desaus. 330. In New York it has been 
 held that ari alien might be a corporator and trustee in a religious society. Com- 
 raeyer v. United German Churches, 2 Sandf. Ch. 186. 
 
 An alien trustee may convey, and such sale will not be set aside. Ferguson v. 
 Franklin, 6Munf. 305; see Escheater v. Smith, 4 McCord, 452. 
 
WHO MAY BE CESTUI QUE TRUST. 65 
 
 tee of property vested in him, without divesting himself of the posses- 
 sion of the legal estate. (a;) 
 
 It may be observed, that at law no person can be a trustee, unless 
 he takes a vested legal interest jin the trust estate.(2/) 
 
 IV.— WHO MAY BE CESTUI QUE TRUST. 
 
 All persons who are capable of taking an interest in property at 
 law, *may, to the extent of their legal capacity, and no fur- r-cco-i 
 ther, become entitled to the trust of such property in equity.(z) 
 The beneficial interest in property may also become, and frequently 
 is, vested in objects as cestui que trusts, whose existence is not re- 
 cognised at law.^ 
 
 By the old law, it appears that the king could only take the use 
 of land when the use had been found of record, (a) But it has never 
 been decided that the Court of Chancery would refuse to enforce the 
 execution of a trust of real estate- in favor of the crown, if declared 
 otherwise than by matter of record. In the case of Burgess v. 
 Wheate, in which the right of the crown to take the trust of an estate 
 on the failure of an heir to the cestui que trust, was elaborately con- 
 sidered, that objection to the title of the crown was not attempted to 
 
 (x) Exp. Pye, 18 Ves. 139; Wheat- Thorpe v. Owen, 5 Beav. 224 ; see post 
 ley V. Purr, 1 Keen, 551 ; Meek v. Ket- 82. 
 
 tlewell, 1 Hare, 469 ; 1 Phill. 342; At- {y) Owen v. Owen, 1 Atk. 496. 
 cherley v. Vernon, 10 Mod. 518; 1 (z) 1 Sand. Us. 339. 
 Sugd. V. & P. 171, and cases cited; (o) Gilb. Us. 44; Bac. Abr.,(Uses 
 
 and Trusts), E. 2. 
 
 ' It is not necessary to the creation of a trust estate that a cestui que trust should 
 be named, or in being at the time. Thus a. devise to a father for accumulation, 
 in trust for the use of such child or children as he may have lawfully begotten 
 at the time of his death, is valid. Ashhurst v. Given, 5 W. & S. 329. But where 
 land was conveyed under articles of agreement or trust for subscribers thereto, 
 it was held that the title of the grantor was not divested until there were subscri- 
 bers. Urket V. Coryell, 5 W. & S. 61. A donee must have capacity to take, 
 whether it is attempted to convey title directly to the party himself or in trust for 
 him. Thus a slave cannot be the cestui que trust of his own freedom, under a 
 bequest thereof, where direct emancipation would be illegal. Trotter v. Blocker, 
 6 Porter, 269 ; see Ross v. Duncan, Freem. Ch. 603 ; Frazieri;. Frazier, 2 Hill, Ch. 
 305. A cestui que trust may affirm and enforce the trust, though created without 
 his knowledge. Moses v. Murgatroyd, 1 J. C. R. 119; Pratt v. Thornton, 28 
 Maine, 355; Shepherd v. MoEvers, 4 J. C. R. 136; Pleasants?). Glassoocke, 1 S.& 
 M. Ch. 17; Bryant -u. Russell, 23 Pick, 520. His assent will be presumed in the 
 absence of proof to the contrary, if beneficial to him. Field v. Arrowsraith, 3 
 Humph. 442. In order indeed to constitute a waiver or a trust fund, there niust be 
 a clear, unequivocal and decisive act of the party, evincing a determination 
 not to have the benefit of it. Breedlove v. Stump, 3 Yerger, 257. See post 83, 
 338. 
 
66 WHO MAY BE CESTUI QUE TRUST. 
 
 be urged. But; however this may be, it appears that a trust o^ per- 
 sonal property may be constituted in favor of the crovrn, in the same 
 manner as in the case of a private person. (5) Even by the old law 
 it seems that the king might take real estate by devise, though not 
 of record ;(c) and it is therefore conceived from analogy, that the 
 court would be bound to recognise a trust even of land, where it is 
 created by devise in favor of the king.' 
 
 The law does not permit the Statutes of Mortmain to be evaded by 
 the mere substitution of an equitable for a legal estate. There- 
 fore corporations cannot acquire an interest in real estate, as cestui 
 que trust, without a license from the crown to hold in mortmain. ((i) 
 The statute 43 Geo. III. c. 107, establishes an exception in favor of 
 the corporation of Queen Anne's Bounty, which it exempts from the 
 operation of the Mortmain Acts. With regard to their capacities for 
 the acquisition of personal property, corporations in general are on 
 the same footing as private persons.^ 
 
 (6) Middleton v. Spicer, 1 Bro. C. C. (c) Com. Dig. (Prerogative), D. 66. 
 201 ; Brummell v. M'Pherson, 5 Russ. [d) Co. Litt. 99, a.; 1 Sand. Us. 330, n. 
 264; 1 Saund. Us. 339, n. 
 
 ' A conveyance to one and his heirs in trust for the State vests the legal title 
 in the State. Lamar ?). Simpson, 1 Richard. Ch. 71. In Nightingate v. Goul- 
 borne, 5 Hare, 484, a bequest to the Queen's Chancellor of the Exchequer, for 
 the time being, to be by him appropriated to the benefit and advantage of 
 Great Britain, was held to be valid as to pure personalty, but null as to moneys 
 due on mortgage. See Whitehall i>. Reynolds, 1 Phill. Ch. 185. A declaration of 
 rust by the grantee of land for a burying ground for " the Jewish Nation," was 
 supported in Gomez v. The Tradesman's Bank, 4 Sandf S. C. 106; but no ob- 
 jection appears to have been taken to the uncertainty, or in fact, non-existence of 
 the cestui que trust, and query how far the decision is consistent with Leggett 
 ■u. Dubois, &c., post, 53, note 1. 
 
 ^ Where a corporation has power under its charter, to take real and per- 
 sonal estate by deed and devise, it may also take and hold property in trust, in 
 the same manner and to the same extent that a private person may ; if the trust 
 be repugnant to, or ineonsistent with, the proper purpose, for which the corpo- 
 ration was created, it may not be compellable to execute it, but the trust (if other- 
 wise exceptionable), will not be void, and a court of equity will appoint a new 
 trustee, to enforce and perfect the objects of the trust. Vidal et al. v. The City 
 of Philadelphia et al., 2 Howard's Rep. Sup. C. U. S. 127. Neither is there any 
 positive objection in point of law, to a corporation's taking property upon a trust 
 not strictly within the scope of the direct purposes of its institution, but collateral 
 to them. Id. ibid. Under a general power in the charter, " for the suppression 
 of vice and immorality, the advancement of the public health and order, and the 
 promotion of trade, industry and happiness," the corporation may execute any 
 trust german to these objects. Id. ibid. Thus a trust for the establishment of a 
 college, or seminary of learning, and especially one for the education of orphans 
 •and poor scholars. Id. ibid. Where trusts are in themselves valid, but the cor- 
 poration incompetent to execute them, the heirs of the devisor could not take ad- 
 vantage of such inability ; it could only be done by the state in its sovereign 
 capacity, by a quo warranto, or other proper judicial proceeding. Id. ibid. T. [See 
 ante, note 1,] 
 
WHO MAT BE CESTUI QUE TRUST. 67 
 
 *The operation of the Bankruptcy and Insolvency Acts ex- r^irq-i 
 tends to property vested beneficially in the bankrupt or insol- 
 vent. An uncertificated bankrupt therefore, or an insolvent before his 
 final discharge, cannot become entitled as cestui que trust. We may 
 except a bankrupt's right to his allowance, and to the surplus of his 
 estate, which, as we have seen, are interests vested in and assignable by 
 him.(e) The wearing-apparel and tools of an insolvent, to the value 
 of 20Z., which are expressly exempted from the operation of the 37th 
 sect, of 1 & 2 Vict. c. 110, will also form an exception to this rule. 
 
 On the same principle, that equity follows law, no person, under 
 legal incapacity to hold property, will be permitted to acquire a right 
 to the beneficial enjoyment. Thus, although an alien friend may 
 take an equitable as well as a legal property in chattels personal, yet 
 he cannot protect himself from forfeiture by taking a conveyance of 
 real estate in the name of a trustee. (/)' And the same may be pre- 
 dicted of traitors, felons, and outlaws, during the continuance of their 
 legal incapacity.^ 
 
 However, in addition to the persons who are capable of taking the 
 legal estate, the equitable interest in both real and personal estate 
 may be held for the benefit of many objects as cestui que trusts, 
 whose separate existence as the recipients of property is not recog- 
 nised or admitted by the common law. Such are those numerous 
 institutions and associations which have not been invested with any 
 legal personification by letters patent, or charter of incorporation, 
 but which, under the general appellation of charitable uses were 
 
 (e) Supra. (/) Sugd. V. & P. 2d vol. 9th ed. 35. 
 
 106; 1 Sand. Us. 339, n.; 3 Ch. Rep. 
 
 ' Atkins V. Kron, 5 Ired. Eq. 207 ; Hubbard v. Goodwin, 3 Leigh. 492. Equity- 
 will not raise a resulting trust in favor of an alien. Leggett v. Dubois, 5 Paige, 
 214; Hubbard u. Goodwin, ut supra; Phillips v. Cramond, 2 Wash. C. C. R. 441 ; 
 Taylor v. Benham, 5 How. U. S. 270 ; though see Farley v. Shippen, Wythe, 1 35. 
 But he may be cestui qae trust of personalty. Bradwell v. Weeks, 1 J. C. R. 
 206; or of the proceeds of land directed to be sold by will. Com. v. Martin, 5 
 Munf. 117; Craig v. Leslie, 3 Wheat. 563; Taylor v. Benham, 5 How. U. S. 
 269 ; see Anstice v. Brown, 6 Paige, 448. A legacy given to an alien cannot 
 be charged on the real estate of the testator, Atkins v. Kron, 2 Ired. Eq. 423, 
 and it seems that a court of equity would not permit land liable to escheat, to be 
 sold for debts, in order to preserve the personalty for alien legatees. Trezavant 
 V. Howard, 3 Desaus. 87. Where a suit was brought by a plaintiff as trustee for 
 an alien enemy, it was held to be no objection after the war had terminated. 
 Hamersly v. Lambert, 2 J. C. R. 508. 
 
 ^In Bishop v. Curtis, 17 Jur. 23, a testator had bequeathed to C. a promissory 
 note, not to be sued on, or be made available before he came of age. Before 
 that time C. became a convicted felon. It was held that the legal title to the 
 note was in the executors, and was not divested by the conviction, though they 
 became thereupon trustees for the crown. See Stokes v. Holden, 1 Keen, 153. 
 
68 WHO MAT BE CESTUI QUE TRUST. 
 
 gradually permitted by the courts of equity to acquire the beneficial 
 enjoyment of a large portion of the property of the country. 
 
 The statute 9 Geo. II. c. 36 (usually called the Statute of Mort- 
 main), has much curtailed the power of disposing of real estate in 
 favor of charitable uses. But at the present day trusts of real estate 
 may be raised in favor of such objects, and will be supported by the 
 Court of Chancery, as long as they do not infringe upon any of the 
 provisions of that statute, which, it may be observed, has received a 
 very strict judicial construction. However, the capacity of such ob- 
 jects to take the beneficial interest in personal property is not af- 
 fected by the Mortmain Act, and the court is always disposed to put 
 a liberal construction upon such dispositions in favor of charitable 
 
 In these cases there are usually no persons capable of enforcing their 
 r*'i41 *''^g^*'^ ^^ cestui que trusts, but their interests will be repre- 
 sented by the Attorney-General as the oflScer of the crown. It 
 is not proposed to consider in this place, what are the several objects in 
 whose favor the court will enforce a trust of this nature ; it will be 
 sufficient for our present purpose to observe, that charitable uses are 
 objects capable in equity of taking a beneficial interest in property 
 both real and personal as cestui que trusts to the extent limited by 
 the legislature. The extent and nature of those limitations, and 
 their efi"ect upon the validity of trusts of this description, will be re- 
 served for future consideration. 
 
 An illegitimate child, when born, or in ventre sa mere, may be- 
 yond all doubt be the object of a trust ; but a trust in favor of ille- 
 gitimate children, not in existence, but to be born thereafter, will 
 not be enforced. (A) 
 
 (g) Moggridge v. Thackwell, 2 Ves. 456; see Pratt v. Flamer, 5 H. & J. 10; 
 
 78; White v. White, Id. 423; Fonbl. Gardner u. Heyer, 2 Page, 11; Collins 
 
 Eq. 211. V. Hoxie, 9 Page, 81 ; Evans v. Davis, 
 
 {h) Willcinson D.Wilkinson, 1 N. C. 7 Hare, 498; Owen v. Bryant, 13 Eng. 
 
 C. 657. [In re Connor, 2 Jones & Lat. L. & Eq. 431.] 
 
PAET L* [*55] 
 
 THE CONSTITUTION OF TRUSTEES. 
 
 Thb leg?il owner of property is prima facie entitled to its bene- 
 ficial enjoyment ; and in order to convert him into a trustee, there 
 must be a sufiScient indication of the intention of the parties, that 
 he should hold the estate for the benefit of others. 
 
 A person may be constituted trustee : — 1st, by express declara- 
 tion ; 2d, by implication or construction of law ; 3d, by way of 
 substitution in the place of a trustee already created; and 4th, 
 when so constituted, he must assent to and except the trust. 
 
 DIVISION I. 
 
 THE CONSTITUTION OF TKUSTEES BY EXPRESS 
 DECLARATION. 
 
 The declaration constituting a party trustee may be made, either 
 by parol, or by instrument in writing. And, first,— of the creation 
 of trustees by parol declaration : in treating of which, it is proposed 
 to consider — 1st, what may be the subject of a parol trust ; and, 
 2d, what will be a valid declaration of such a trust. 
 
 CHAPTER I. 
 
 THE CREATION 01* TRUSTEES BY PAROL, 
 
 SECT. 1— WHAT MAY BE THE SUBJECT OP A PAROL TRUST, 
 
 Uses in the beginning were of a secret nature, and depended 
 merely on a parol agreement or declaration between the feofi"ee to 
 
70 CREATION OF TRUSTEES BY PAROL. 
 
 uses and the cestui que use.{a) But even before the Statute of 
 Frauds, this principle does not seem to have been applicable to all 
 cases, and in many instances it appears to have been a matter of 
 considerable doubt, whether at common law uses could be raised by 
 parol, or even by writing without a seal.(5)> 
 
 Lord Chief Baron Gilbert has extracted a principle from the cases 
 r*'ifi1 *^^i''^ seems to reconcile their apparent contrariety. That 
 eminent writer, in his " Treatise on Uses," observes, " at com- 
 mon law a use might have been raised by word upon a conveyance, 
 that passed the possession by some solemn act, as a feoffment. But 
 where there was no such act, there it seems a deed declaratory of 
 the use was necessary : for as a feoffment might be made at common 
 law by parol, so might the uses be declared by parol. But where a 
 deed was necessary for passing the estate itself, it was also requisite 
 for the declaration of the uses. Thus a man could not covenant to 
 stand seised to a use without a deed, but a bargain and sale by pa- 
 rol has raised a use without."(c) And this distinction appears to 
 be supported by the observations of Lord Thurlow in his judgment 
 in the case of Fordyce v. Willis. (ci) 
 
 In considering this question, it is material not to lose sight of the 
 distinction between the raising of an use originally by verbal decla- 
 rations, and the admission of parol averments to prove or support it 
 when raised. Whatever may have been the law on the former point, 
 there seems to be no doubt, but that such averments were allowable 
 in the latter case, subject to the rules as to the admission or exclu- 
 sion of parol evidence.(e) 
 
 Trusts succeeded to uses. — It seems, therefore, that before the 
 Statute of Frauds a valid trust, either of real or personal estate, 
 might have been created by parol declaration, if not in all cases, 
 at any rate wherever a deed was not requisite at law, for passing 
 the estate or property itself. 
 
 The 7th Sec. of the Stat. 29 Car. II. c. 3 (usually called the 
 Statute of Frauds), enacts, " That all declarations, or creations of 
 trusts or confidences of any lands, tenements, or hereditaments, shall 
 be manifested and proved by some writing, signed by the party, 
 who is by law enabled to declare such trust, or by his last will in 
 writing, or else shall be void." The 8th Sec. exempts from the ope- 
 ration of the act trusts arising or resulting by the implication or 
 construction of law.^ 
 
 (a) Sand. Uses, 210. (d) 3 Bro. C. C. 587. 
 
 (6) Stor.Eq. Jur. { 971. (e) Fordyce v. Willis, 3 Bro. C. C. 
 
 (c) Gilb. Us. 270. 1. 237; Dowmari's case, 9 Rep. 10. 
 
 'That a trust in land could be created at common law by parol, was denied in 
 Dean v. Dean, 6 Conn. 287 : but asserted in Fleming v. Donahoe, 5 Ohio, 250. 
 
 ^ These Sections have been re-enacted in words or in substance in nearly 
 all of the United States. Rev. Stat. Vermont (1839), ch. 66, § 22; Rev. Stat. 
 
CREATION OF TRUSTEES BY PAROL. 71 
 
 It will be observed, that the 7th Sect, merely requires that the 
 trust should be manifested and proved by writing ; and upon the 
 construction put upon these words it has been decided, that a trust 
 of land may be still effectually created by parol ; and in order to 
 satisfy the statute, it will be sufficient to show by written evidence 
 the existence of the trust. (/)^ This distinction, although at first 
 sight it may appear of little moment, has been attended by conse- 
 quences of considerable importance. 
 
 If the trust were considered to derive its existence ah initio from 
 the written declaration, the trust estate could not form part of the 
 disposable property of the cestui que trust, previously to the execu- 
 tion of that declaration ; and, moreover, up to that time, it would 
 be liable for the acts and incumbrances of the ostensible owner. 
 But now the declaration, when made, has relation backwards to the 
 time of the creation of the trust, of which it is the evidence, and conse- 
 quently gives effect to all intermediate *acts of disposition made .-^ r «-■ 
 by the cestui que trust, between the declaration of the trust and 
 its actual creation ; while it defeats the rights which parties claiming 
 
 (/) Forster v. Hale, 3 Ves. 707 ; S. C. 5 Ves. 308 ; Randall v. Morgan, 12 Ves. 74. 
 
 Massachusetts (1836), Ch. 59, § 30: Dean v. Dean, 6 Conn. 285, Rev. Stat. 
 New York, 3d ed. part I, Ch. 7, tit. 1,^ 6; Rev. Stat. New Jersey, tit. 17, Ch. 1, 
 § U; Dorseyv. Clark, IH. & J. 557;Maccublin v. Cromwell, 7 G. & J. 157; 1 Dor- 
 sey's Laws, 37; 2 Cooper's Stat. South Car. 401, 525; 2 Cobbs Georgia Digest, 
 1128; Elliott v. Armstrong, 2 Blackf. 198; Hovey v. Holcomb, 11 IllinoisR. 
 610; Rev.Stat. Arkansas, Ch. 65, { 10 ;Rev. Stat. Missouri, Ch. 68, M ; Eev Stat. 
 Michigan, p. I, tit. 1, Ch. 1, § 27; Wisconsin Rev. Stat, page 164; Thompson's 
 Florida Digest, 178. In Maine, the statute runs " all trusts, except &c., shall be 
 created antZ manifested by some writing, &c. Rev. Stat. 1847, Ch. 92, § 3 1. Ace. Rev. 
 St. of N. H. (1842) Ch. 130, §13. The 7th Section of the Statute of Frauds has been, 
 however, omitted in North Carolina: there, consequently, trusts may be proved 
 by parol. Fryt). Fry, 2Hayw. 231. So too, it would seem, in Tennessee. Caruthers 
 & Nichols' Digest, 350; .Meig's Digest, 541, see Thompson D.Thompson, 1 Yerg. 
 100 ; McLanahan v. McLanahan, 6 Hump. 99 ; Haywood v. Gurley, 8 Hump. 460. 
 In Virginia the Section in question was omitted both in the earlier Acts and in the 
 Code of 1849, tit. 33, Ch. 116, U, see Bank v. Carrington, 7 Leigh. 576. In Ohio it 
 was ruled that before the Act of 1810, a trust in land might be proved by parol. 
 Fleming v. Donahoe, 5 Ohio, 250 : and that statute does not apparently re-enact 
 the Section ; but see Starr v. Starr, 1 Ohio 329. In Pennsylvania also, after 
 some discussion it has been settled that under the Act of 1779, trusts may 
 be proved by parol. Murphy v. Hubert, 7 Barr. 420; Tritt v. Crolzer, 13 Penn. St. 
 R. 451 ; Wetherili v. Hamilton, 16 Penn. St. R. 195. 
 
 'Movan v. Hays, 1 J. C. R. 339 ; Johnson v. Ronald^ 4 Munf. 77; Jackson 
 V. Moore, 6 OoWen, 706 ; Flagg w.Mann, 2 Sumner 406 ; Church v. Sterling, 16 
 Conn. 388 ; Lloyd v. Inglis, 1 Desaus. 333 ; Rutledge v. Smhh, 1 M'Cord Ch. 
 119; Maccubbin v. Cromwell, 7 G. & J. 157, 2 Story Eq., § 972; Pinney v. 
 Fellows, 15 Verm. 525; Unitarian Soc. v. Woodbury, 14Maine, 281. See, how- 
 ever. Rev. St., Maine and New Hampshire ut. sup. In Church v. Sterling, ut sup. it 
 was held that parol proof of a trust was admissible where there had been a pay- 
 ment of purchase money by the cestui que trust, and an entry and occupation with 
 improvements. 
 
72 CREATION OE TRUSTEES BY PAROL. 
 
 under the trustee might have otherwise acquired. This is, of 
 course, subject to the protection always given in equity to persons 
 in the situation of hona fide purchasers for valuable consideration 
 without notice. 
 
 Thus, where a freeman of London purchased real estate in the 
 name of another person, without any trust being expressed at the 
 time, and the freeman died, having devised the estate, and after his 
 death the trustee declared that he held in trust for the freeman : this 
 declaration was held good, so as to entitle the devisee in opposition 
 to the widow, who claimed the estate by the custom of London. (^) 
 
 So, where a copyholder made an absolute surrender to A., and 
 died ; and after his death A. admitted that the surrender was made 
 to him in trust for the surrenderor, and after his death for the pur- 
 pose of his will ; the devisees under the copyholder's will, and not 
 his customary heir, were held to be entitled. (A) 
 
 On the same principle in a case where a lease was granted abso- 
 lutely to a person, and the grantee afterwards became bankrupt, 
 and subsequently to his bankruptcy made a declaration that the lease 
 had been granted to him as a trustee for another person : it was held 
 by the Vice-Chancellor, and the decision was afSrmed on appeal by 
 Lord Lyndhurst, that the assignees of the bankrupt were not entitled 
 to the lease. (»■) (1) 
 
 The 7th Section of the Statute of Frauds applies only to " lands, 
 tenements, and hereditaments." Therefore the law, as it affects 
 chattels personal, remains unaltered ; and a valid trust of such pro- 
 perty may not only still be created, but, if necessary, established and 
 proved by mere parol declarations. (A) 
 
 With regard to the question of what property is within the scope 
 
 (g) Ambrose i). Ambrose, 1 P. Wms. M'Fadden i). Jenkyns, 1 Hare 461; S. 
 
 322. C. 1 Phill. 153, 7; [Kimball v. Morton, 
 
 (A) Wilson V. Dent, 3 Sim. 385. 1 Halst. Ch. 31 ; Robinson v. Howell, 
 
 (i) Gardner v. Eowe, 2 S. & St. 346 ; 6 Geo. 590 ; Martin -u. Greer, 1 Geo. Dec. 
 
 S. C. 5 Ross 268. 109 ; Kirkpatrick u. Davidson, 2 Kelley, 
 
 (A) Fordyce v. Willis, 3 Bro. C. C. 297; Porter v. Bank of Rutland, 19 
 
 587; Benbow v. Townsend, 1 M. & K. Verm. 410.] 
 510; Bayley v. Boulcott, 4 Russ. 347; 
 
 (1) On a similar principle it has been held, that a settlement made after mar- 
 riage, which recites a parol agreement, entered into previously to the marriage, 
 will be good against creditors notwithstanding the statute of Elizabeth. Monta- 
 cute V. Maxwell, 1 Str. 237; Hodgson v. Hutchenson, 5 Vin. Abr. 542, pi. 34; 
 Dundas v. Dutens, 1 Ves. jun. 196, and S. C. 2 Cox 235; and see Dubeil t). 
 Thompson, 3 Beav. 475. But there seems to be considerable doubt whether 
 these decisions would now be followed, if a similar question arose at the pre- 
 sent day. See Morgans. Randall, 12 Ves. 74; Spurgeon ■«. Collier, 1 Ed. 55; 
 Battersbee v. Farington, 1 Sw. 106, and Sugd. Pow. 247, (6th Ed.) 
 
 [This later opinion is the one generally followed in the United States. Sat- 
 terthwaite v. Emley, 3 Green Ch. 485; Andrews v. Jones, 10 Alab. 400; David- 
 son i). Graves, Riley Eq. 217; Simpson w. Graves, Id. 232; Izard u Izard, 1 Bailey 
 
CREATION OF TRUSTEES BY PAROL. 73 
 
 of the 7tli Section, — it has been repeatedly decided that leasehold 
 interests are within the statiite.(Z) But it seems that money, secured 
 by mortgage, whether in fee or for a term of years, is not. And a 
 parol trust of a mortgage debt will still be supported.(wj) (1) Nor does 
 , the statute apply to a *share in the mining co-partnership, r*rg-i 
 »r to any other shares which are personal e3tate.(w) 
 
 There may, perhaps, still be a question, whether copyholds and 
 customary freeholds are or are not included in the 7th Section. It 
 is clear, that they are not within the 5th and 6th Sections of the same 
 statute ;{o) but that decision seems to have proceeded solely upon 
 the peculiar operation of a devise of lands by that tenure, and it has no 
 necessary application to the case of a creation or declaration of a trust. 
 
 In the case of Doe dem. Cook v. Danvers,(p) Lord Ellenborough 
 expressly stated, that wills of copyholds are not within the 7th Sec- 
 tion of the Statute of Frauds •,(p) and previously to the statute 1 
 Vict. c. 26, it was the opinion of writers of the highest authority, 
 that a devise of copyholds by parol might be good by custom not- 
 withstanding the statute. (§') However, all question on this point is 
 now set at rest by the recent Will Act (1 Vict. c. 26,) the 9th Section 
 of which enacts, that no will shall be valid, unless it shall be in 
 writing, and executed as provided by the act. 
 
 In the case of Devenish v. Baines,(r) the court was of opinion, 
 that where by the custom of the manor an estate might be created 
 by parol, a trust of such parol estate might likewise be raised without 
 writing, notwithstanding the statute. This seems to be the only case 
 that at all favors the position, that parol creations of trust of copy- 
 holds by act inter vivos are not within the operation of the 7th Sec- 
 tion of the statute. It will be seen on examination, that the case 
 was decided on another point, and the opinion was therefore clearly 
 
 (Z) Riddle r. Emerson, 1 Vera. 108; ton v. Lord Langdale, 15 Jur. 868; 
 
 Hntchins u. Lee, lAtk. 447; Forster i). Walkers. Milne, 11 Beav. 507; Myers 
 
 Hale, 3 Ves. 696; S. C. 5 Ves. 308; v. Perrigal, 16 Sim. 533.] 
 
 Gardner v. Howe, 5 Huss. 258; [Otisu. (o) Tuffnell v. Page, 2 Atk. 37; Ca- 
 
 Sill, 8 Barb. S. C. 102.] ray v. Askew, 2 Bro. C. C. 59. 
 
 (m) Bellasisu. Compton, 2Vern. 294; (p) Doe dem. Cook v. Danvers, 7 
 
 Benbow v. Townshend, 1 M. & K. 510. East, 299, 322. 
 
 (n) Forsteru. Hale, 3 Ves: 696; S. C. (g) 1 Jarm. Pow. Dev. 61 ; 1 Walk. 
 
 5 Ves. 308; [See Porter t). Bank of Rut- Cop. 130. 
 
 land, 19 Verm. 410; Hilton v. Giraud, 1 (r) Free. Chan. 4. 
 DeGex&Sm. ISs'; 11 Jur 838; Ash- 
 
 Eq. 228; see Babcock v. Smith, 22 Pick. 6i; contra Woods v. Savage, Walker, 
 Ch. 471 ; Brooks v. Dent, 1 Mary, Ch. Dec. 526 {semb.) ; though in this last case 
 the declarations of the husband after marriage were held insufficient evidence. 
 See also Smith v. Kane, 2 Paige 303; Magniao v. Thompson, Baldw. C. C. 344.] 
 
 (1) It would seem to follow from this case, that legacies,' annuities, and other 
 sums of money charged on land, do not come within the operation of the statute, 
 respecting parol declarations of trust of lands. 
 
74 CREATION OP TRUSTEES BY PAROL. 
 
 extrajudicial ; moreover the circumstances seem only to warrant the 
 application of those expressions to a customary devise by parol ; and 
 at the most they only authorize the raising of a trust by verbal 
 declaration, which, as we have already seen, may still be done, not- 
 withstanding the statute. Both copyholds and customary freeholds, 
 if not within the words, are certainly within the spirit of the 7th 
 Sect. ; and no objection arising from the tenure of such property can 
 in this case be urged in favor of their being exempted from its oper- 
 ation ; an exemption which, even in the case of the 5th and 6th 
 Sects., has been regarded with disapprobation by the courts. (s) 
 
 It may be observed that in the recent case of Benbow v. Towns- 
 hend,(<) in which the question arose of the validity of a parol decla- 
 ration of trust of a mortgage of copyholds, the exemption of property 
 of that tenure from the operation of the 7th Sect, was not attempted 
 to be urged on behalf of the party claiming under the trust ; and the 
 case throughout proceeded, as if there was no difference in that 
 respect between copyholds and freeholds. 
 
 It has been decided, that the Statute of Frauds applies only to 
 such English colonies as were founded at the time when the act was 
 passed(M). Those colonies which have been established subsequently, 
 are not bound by that or any other English act of parliament in which 
 r*KCt-\ t^^y ^^^ ^^^ *named ; unless, indeed, its adoption may have 
 ^ been sanctioned by their own legislature ;(a;) (1) and the courtin 
 
 dealing with real estate in a foreign country will be guided by the 
 law of evidence as prevailing in that country, (y) It follows there- 
 fore, that the validity of a parol trust of property in a British colony 
 or foreign state must depend upon the law of the country where the 
 property is situated. 
 
 It is settled that the sovereign is not bound by the Statute of 
 Frauds, and on that ground parol evidence has been admitted, to 
 prove a verbal trust of lands for superstitious uses in support of the 
 king's title. (2) But where it was attempted to apply the same prin- 
 ciple to trusts /oj' cJiaritahle purposes, and parol evidence was offered 
 to prove such a trust, the court rejected the evidence, and decided, 
 that trusts for charities were within the 7th Sect. (a) It may also be re- 
 
 (s) W&gstafF V. WagstafF, 2 P. Wras. {y) Tulloch v. Hartley, 1 Y. & Coll. 
 
 258 ; Doe v. Danvers, 7 East 322. N. C. 114. 
 
 («) 1 M. & K. 506. (z) Attorney-General t). Jones, 3 Atk. 
 
 (u) Mem. 2 P. Wms. 75. 146; Attorney-General v. Lawson, ib.; 
 
 ijt) Goodrich ■«. Sheddon, 8 Ves. 481 ; King v. Portington, ib. 
 
 Becket v. Marsden, 4 M. & S. 1 : Att.- (o) Adlington v. Cann, 3 Atk. 150; 
 
 Gen. u. Stewart, 2 Mer. 145, n. Mauekleston v. Brown, 6 Ves. 62; 
 
 Strickland «. Aldridge, 9 Ves. 516. 
 
 (1) However, it hasbeendecided, that real property of an Englishman in India 
 did not pass by a will, attested by two witnesses, but descended to his heir at 
 law. Gardiner v. Fell, IJ. & W. 22. 
 
CREATION OF TRUSTEES BY PAROL. 75 
 
 marked here, that Lord Hardwicke's observations, as reported in the 
 case of Adlington v. Cann, appear to throw considerable doubt on 
 the correctness of the general rule, according to which the king has 
 been held not to be bound by the statjite. 
 
 It has been seen, that, by the 8th Sect., trusts arising or resulting 
 by the implication or construction of law, are expressly exempted 
 from the operation of the statute : and as trusts of that nature were 
 disposable by a bare declaration by parol b^ore the act, they must 
 still be considered as on the same footing. (6) 
 
 A court of equity will not permit the Statute of Frauds to be set 
 up as a defence by a party infected with fraud , and parol trusts of 
 real estate have frequently been established in direct contradiction 
 to the statute on the ground of fraud. Thus where a person obtains 
 a gift of property upon a parol assurance to the donor, that he will 
 dispose of it either wholly or partially in a particular way ; the 
 court will compel the performance of such an engagement. (c) But 
 this is a subject which will be reserved more conveniently for dis- 
 cussion in a future chapter.((^) 
 
 SECT. II.— WHAT WILL BE A VALID TRUST BY PAROL. 
 
 In order to fasten a trust on property of any description by means 
 of parol declarations, the expressions used must amount to a clear 
 and explicit declaration of trust. They must also point out with 
 certainty the subject-matter of the trust, and the person who is to 
 take the beneficial interest. Loose and indefinite expressions, and 
 such as indicate only an incomplete and executory intention, are in- 
 sufficient for this purpose.^ 
 
 *Therefore where a mother had assented to a recommenda- nan-i 
 tion, made to her by a third person, to make a settlement upon 
 her daughter, and had requested her adviser to give instructions to her 
 solicitors to prepare a proper deed for the purpose, but afterwards 
 
 (b) BellasisD. Compton, 2 Vern. 294; v. Lee, 1 Atk. 447; Chamberlain v. 
 Benbow v. Townshend, 1 M. & K. 510. Agar, 2 V. & B. 262; Pring v. Pring, 2 
 See post 91. Vern. 99; Kingsman v. Kingsman, ib, 
 
 (c) Devenish v. Baines, Prec. Chan, 559. 
 
 3 ; Walker v. Walker, 2 Atk. 98 ; Pod- (rf) Vide post, Div. 11., Ch. II., Sect, 
 more i;. Gunning, 7 Sim. 649 ; Hutchins 1. [post 150, 167, and notes.] 
 
 ' Harrison?). McMennomy, 2 Edw. Ch. 251 ; Slocum v. Marshall, 2 Wash. C. C. 
 398 ; Mercer v. Stark, 1 Sm. & M. Ch. 479 ; Dorsey v. Clarke, 4 H. & J. 551 ; Chiler 
 V. Woodson, 2 Bibb. ^1 ; Steere v. Steere, 5 J. C. R. 1. ; see Donohoe v. Conrahy, 
 2 J. & Lat. 694, for a' statement of circumstances under which a parol trust will 
 be enforced. 
 
76 CREATION OF TRUSTEES BY PAROL. 
 
 refused to execute the deed ; it was held, that the expression of the 
 mother's inchoate intention to settle the property was not such a 
 declaration of trust, as the court could act upon.(e)^ 
 
 But a declaration by a person on investing money on a mortgage, 
 " that the security was to be made in the name of his brother Job, 
 as he intended the mortgage to he for his benefit, and that it would 
 then he his," has been considered sufficient.(/) And in like manner 
 a trust was decreed on a verbal declaration, that an investment of 
 stock was in trust for four children equally.{g) But in that case 
 the parol expressions were supported by a contemporaneous written 
 entry.(l) 
 
 Where it is attempted to convert a prima facie absolute gift into 
 a trust by means of verbal declarations, the expressions must be 
 used contemporaneously with, or in contemplation of, the act of dis- 
 position. (A) And it must be remembered, that even in that case 
 they will be inadmissible for the purpose of contradicting any written 
 instrument.(«') 
 
 Since the statute 1 Vict. c. 26, no parol declaration can be made 
 to take eflFect as a noncupative will ; but it has been decided that a 
 donatio mortis causa may be made to a trustee for a particular 
 purpose.(A)^ And such a gift does not seem to be effected by the 
 late Will Act. 
 
 (e) Bayley iJ. Boulcott, 4 Russ, 345. 537; [Southerby v. Arden, 1 J. C. R. 
 
 (/) Benbow v. Townshend, 1 M. & 240; Tritt v. Crotzer, 1 Harris (Penn.), 
 
 K. 506. 457 ; see Drum v. Simpson, 6 Binn. 
 
 (g-) Kilpin V. Kilpin, 1 M. & K. 520; 478.] 
 and see Wheatley v. Purr, 1 Keen, 551. (i) Leman v. Whitley, 4 Euss. 423. 
 
 (fe) See Kilpin v. Kilpin, 1 M. & K. (4) Blunt v. Burrow, 4 Bro. C. C. 75. 
 
 (1) Where the transaction is altogether voluntary, a trust will not be enforced as 
 against the donor upon a parol declaration, unless a complete executed trust be 
 clearly proved. Therefore where a testatrix drew a cheque on her banker in 
 favor of A., and verbally directed A. to apply it in making up a legacy she had 
 given to B., to a certain value ; and no communication on the subject was made 
 to B. by the testatrix in her lifetime ; Sir J. Wigram, V. C, refused to enforce the 
 trust against the estate of the testatrix in favor of B., Hughes v. Stubbs, 1 Hare, 
 476 ; and see McFadden v. Jenkyns, Id. 438. There seems to have been no 
 doubt however in that case, but that A. was a trustee for the test?,trix and her 
 representatives. The same doctrine applies alike to voluntary trusts whether 
 they are created by parol, or written declarations ; and the reader is referred to 
 a subsequent part of this work, where the law respecting voluntary trusts is more 
 fully considered. [Post, 82.] 
 
 'In Lloyd i;. Inglis Exrs., 1 Desau, 333, it was held that the testimony of a 
 conveyancer, that a deed drawn by him, absolute on its face was intended to be 
 in trust, was inadmissible to establish the trust. Proof of the intention of the 
 grantor is insufficient by itself. Harris v. Burnett, 3 Gratt, 339. 
 
 = Moore v. Darton, 7 Eng. L. & E. 134; Wells v. Tucker, 3 Binn. 370 ; Brone- 
 man V. Sedlinger, 3 Shepley, 429; 8 Shepl. 185; Coutant v. Schuyler, 1 Paige, 
 
CREATION OF TRUSTEES BY PAROL, 77 
 
 It is to be observed, that a trust, once effectually created by parol, 
 cannot subsequently be extinguished, revoked or altered by the party 
 creating it, any more than a more formal assurance.(Z) 
 
 The evidence of a person claiming the beneficial interest in pro- 
 perty under a parol declaration, is inadmissible for the purpose of 
 establishing the trust in his own favor ; but there is no objection to 
 the testimony of the creator of the trust, who has parted with the 
 whole interest, nor d fortiori to that of the trustee himself.(m) 
 
 No evidence can be admitted, for the purpose of engrafting a parol 
 trust upon an instrument, which purports to be an absolute gift(w),' 
 (excepting *in cases of fraud or mistake) ;(o) however, it has r»:g-i-i 
 been frequently decided, that a plaintiff is entitled to an answer 
 to allegations contained in a bill, suggesting the existence of a parol 
 trust in such a case ;(p) and a general demurrer to a bill of that nature, 
 will be overruled. (g)^ But no relief will be given where the defen- 
 dant denies by oath, in his answer, the trust alleged by the bill ;(r) 
 except indeed in cases of fraud, which, if otherwise established, would 
 warrant the interference of the court under any circumstances. (s) 
 
 (QKilpirnj.Kilpin, 1M.&K.53),539; Cripps v.iee,i Bro. C. C. 472; Pod- 
 
 Adlington v. Cann, 3 Atk. 151. [Free- more v. Gunning, 7 Sim. 644, 665. 
 
 man v. Freeman, 2 Pars. Eq. 81; see (p) Muckleston -u. Brown, 6Ves. 52; 
 
 Greenfield's Estate, 14 Penn. St. R. 489; Strickland v. "Aldridge, 9 Ves. 516; Cham- 
 
 Jiirkpatrick v. McDonald, 1 1 Penn, 387.] berlain v. Agar, 2 B. & B. 259 ; Newton v 
 
 (m) Fordyce v. Willis, 3 Bro. C. C. Pelham, 1 Ed. 514, cited post, p. 167. 
 
 581, 2, 3; Strode ti. Winchester, 1 (5) Muckleston u. Brown, 6 Ves. 52 ; 
 
 Dick. 397. (r) Fordyce v. Willis, 3 Bro. C. C. 
 
 (w) Irnham v. Child, 1 Bro. C. C. 92 ; 576; Bartletti;. Pickersgill, 1 Ed. 515, 
 
 Bartlett v. Pickersgill, 1 Ed. 515; Le- post 167. 
 
 man v. Whitley, 4 Russ. 423. (s) Strickland v. Aldridge, 6 Ves. 
 
 (0) Irnham 1). Child, 1 Bro. C. C. 92; 520; Podmore «. Gunning, 7 Sim. 665. 
 
 Ch. 316 ; but in Dole v. Lincoln, 31 Maine, 422, it was ruled that a donatio mor- 
 tis causa, cannot be of a fund in trust to be disposed of for benevolent uses, at 
 the entire and unlimited discretion of the donee. 
 
 ' Dickerson v. Dickerson, 2 Murp. 279, 1 Car. Law Rep. 262; Steere v. Steere, 
 5 J. C. R. 1. ; Dean v. Dean, 6 Conn. 285 ; Hutchinson v. Tendall, 2 Green, Ch. R. 
 357; Starr v. Starr, 1 Hamra. 321; Lloyd v. Inglis Exrs. 1 Desau. 333; Movan v. 
 Hays, 1 J. C. R. 343; Philbrooke t). Delano, 29 Maine 410; see notes to Woollam 
 V. Hearn, 2 White & Tud. Eq. p. 1, 540. 
 
 'Though the defendant admit a parol trust in his answer, he may nevertheless 
 set up the Statute of Frauds as a defence; but if he does not do this by way of 
 plea, or in his answer, he will be deemed to have waived it. Flagg. v. Mann, 2 
 Sumn. 528; Ontario Bank v. Root, 3 Paige, 478; Wood ■;;. Dille, 11 Ohio, 455; 
 Newton v. Swasey, 8 N. H. 9; Rowton v. Rowton, 1 Hen. & Munf. 91 ; Lingan 
 V. Henderson, 1 Bland. 236; Tarletonw. Vietes,'! Gilm. 470; Stearns v. Hubbard, 
 8 Greenl. 320; Thornton v. Heary, 2 Scam. 219; Trustees 1). Wright, 12 lUin. 
 432. Where it is to be gathered from the face of the bill, that the alleged trust 
 is only in parol, the objection may be taken advantage of by demurrer. Walker 
 ■u. Locke, 5 Gushing, 91. This must, however, appear distinctly to be the case, 
 or a demurrer will be overruled. Cozine v. Graham, 2 Paige, 178 j Switzer v. 
 Skiles, 3 Gilm. 534. 
 
78 CREATION OF TRUSTEES BY PAROL. 
 
 Where there is an absolute conveyance to a person, but under a 
 secret trust for purposes which the law will not suffer to take effect, 
 the donee will hold absolutely for his own benefit ; unless he admit 
 the trust by his answer, or it be otherwise established in evidence 
 against him.(i) 
 
 With regard to what will be a sufficient written manifestation, or 
 proof of the creation of a trust, to satisfy the Statute of Prauds, we 
 have seen that the 7th Sect, required " a writing, signed by the party 
 legally entitled to declare the trust." 
 
 These words will be satisfied by a written document of any des- 
 cription ; and, accordingly, a bond to assign as cestui que trust shall 
 direct,(M) or a covenant to purchase and convey lands to specified 
 uses,(a;) or a recital contained in a deed,(?/) as well as written state- 
 ments, of a much looser and more informal description, such as those 
 contained in a bill or answer(2) in Chancery, or even in notes or let- 
 ters in the handwriting of the party, (a) have been considered sufficient 
 to take a parol trust out of the statute. But it must be borne in 
 mind, that the same principles of construction will be applied to 
 trusts proved by evidence of this description, as in x)ther cases ; and 
 the objects and nature of the trust must always appear from such 
 documents with sufficient certainty, as well as their connexion with 
 the property in question. (6) 
 
 By the express words of the statute, the required declaration may* 
 be made by will ; but if the instrument containing such a declaration, 
 by reason of some informality, could not be supported as a will, it 
 might nevertheless, if signed by the party, be a sufficient evidence of 
 the creation of the trust, to take it out of the statute. (c) 
 
 The writing which is to furnish the evidence of the trust, must be 
 
 (() Cottington v. Fletcher, 2 Atk. ■«. Woodbury, 2 Shepl. 281; Podmore 
 
 156. V. Gunning, 7 Sim. 655; Fisher i). 
 
 (u) Moorcroftt). Dowding, 2 P. Wms. , Field, 10 J. R. 505.] 
 
 314. [Orleans'!). Chatham, 2 Pick. 29; (o) O'Hara v. O'Neil, 7 Bro. P. C. 
 
 Hardin v. Bond, 6 Litt. 346 ; Graham 227 ; Forster v. Hale, 3 Ves. 707 ; Crook 
 
 V. Lambert, 5 Hump. 595; Gomez v. Brooking, 2 Vern. 106; Morton v. 
 
 1). Tradesman's Bank 4 Sand. S.C. 106.] Tewart, 2 N. C. C. 67; [Steere «. Steere, 
 
 (x) Earl of Plymouth t;. Hickman, 2 5 J. C. R. 12.] 
 
 Vern. 167; Blake D. Blake, 2 Bro. P. C. (6) Forster u. Hale, 3 Ves. 708; 
 
 250. [Steere ■;;. Steere, 5 J. C. R. 1 ; Abeel v. 
 
 {y) Deggu. Degg, 2 P. Wms. 412. Radcliffe, 13 John. R. 1; Rutledge v. 
 
 [Or a memorandum in an agreement, Smith, 1 McCord, Ch. 119 ; Freeport v. 
 
 Dale iJ. Hamilton, 2 Phillips. 266 ; 11 Bartol, 3 Greenl. 340; Arms u. Ashley, 
 
 Jur. 574.] 4 Pick. 7 1.] 
 
 (2) Butler V. Portarlington, 1 Conn. & (c) Nab v. Nab, 10 Mod. 404 ; 1 Eq. 
 
 Law. 15; S.C. 1 Dr. & W. 20 ; Hamp- Ca. Abr. 404, PL 3 ; [See however, 
 
 ton V. Spencer, 2 Vern. 288 ; Wilson v. Johnson v. Ball, 9 Eng. L.'& E. 160; 
 
 Dent, 3 Sim. 385; [Macccubbin v. Crom- Briggs v. Penny, 13 Jur. 905.] 
 well, 7 G. & J.'l57 ; Unitarian Society 
 
CEEATION OF TRUSTEES BY PAROL. 79 
 
 signed by the party legally entitled to declare it. If it be not pre- 
 vious to or contemporaneous with the act of disposition, the party le- 
 gally entitled to declare the trust, -will be the trustee himself; for when 
 a person has once *divested himself of all interest in property, r*g^-i 
 by an absolute conveyance, it is no longer competent for him, 
 either by parol or written declaration, to convert the party taking under 
 such a conveyance, into a trustee.((i) It would be otherwise indeed, 
 where the circumstances of the transaction were such, as to raise a re- 
 sulting or implied trust upon the conveyance ; in which case, the 
 person entitled to such an interest, would clearly have the right at 
 any time to declare the trust, (e) 
 
 Where there is any written evidence that the person apparently 
 entitled is not really so, that will open the door to the admission of 
 parol evidence to prove the trust notwithstanding the statute, i As 
 where there are entries in the books of the grantee, of payments 
 made by him to or on account of the grantor, which payments were 
 inconsistent with the grantee's taking the beneficial interest.(/) 
 
 [*63] CHAPTER II. 
 
 OP THE CEEATION OF TRUSTEES BY INSTRUBIENT IN 
 
 WRITING. 
 
 I. Of THE Instrument BY WHICH IV. Where Words oe Reoom- 
 
 * A Person may be created mendation, etc., will 
 
 Trustee, [63]. raise a Trust, [71]. 
 
 II. What direct Fiduciary Ex- V. Op the Effect of a Vo- 
 
 pressions will create a luntary Disposition in 
 
 Trust, [65]. Trust, [82]. 
 III. Where a Power will be a 
 Trust, [67]. 
 
 OF THE INSTRUMENT BY WHICH A PERSON MAY BE CREATED TRUSTEE. 
 
 At common law if any instrument, operating as a legal disposition 
 of property, contained a direction or declarjation, that the party 
 taking under it should hold for the benefit of another, the conscience 
 
 (d) Adlington v Cann, 3 A!tk. 145; [See Lee v. Huntoon, 1 Hoff. Ch. 447; 
 [Tritt V. Crotzer, ISPenn. St. R. 451 ; in Harris v. Bennett, 3 Gratt. 339.] 
 
 re Dunbar, 2 Jones &. Lat. 120.] (/) Cripps ii. Jee, 4 Bro. C. C. 472 ; 
 
 (e) Bellasis v. Compton, 2Vern. 294; [Hollingsheadv. Allen, 17 Penn.St. 275 ; 
 
 Prevost V. Gratz, 1 Peters, C. C. 366.] 
 
80 CREATION OP TRUSTEES BY WRITING. 
 
 of the donee was affected, and he took the legal estate as a trustee 
 for the beneficial owner. The Statute of Uses was passed with the 
 view of preventing the trustee from taking any interest at all under 
 such a disposition of real property, and of vesting the legal as well 
 as the equitable ownership in the person to whom the beneficial 
 enjoyment was given. 
 
 However, in consequence of the strict construction put upon that 
 statute, the power of vesting real estate in trustees, either by deed 
 or will, remained almost to as great an extent as before. It has 
 been laid down, that there are three direct modes of creating a trust 
 of lands, notwithstanding the statute ; 1st, Where a use is limited 
 upon a use, — as in a conveyance or devise to the use of A. and his 
 heirs, to the use of J5. and- his heirs; 2d, Where copyhold, or lease- 
 hold estates are limited by deed or will to a person upon any use or 
 ttust ; and 3d, Where the donee to uses has certain trusts or duties 
 to perform, which require that he should have the legal estate.(a) 
 In all these cases, however, the question is, not whether the first 
 taker shall hold beneficially, or as a trustee, but whether he takes 
 any legal estate at all under the limitation to him ; and the further 
 consideration of this subject will be reserved more conveniently for 
 future discussion.(J)^ 
 
 The Statute of Uses, it is scarcely necessary to add, does not 
 afiiect the power of disposing of chattels personal.^ 
 
 A trustee of real or personal property may be created by any for- 
 mal instrument, whether deed or will, which passes the legal title to 
 the trust estate, and contains a proper declaration of the trust ; or 
 without any transmutation of possession the owner of property jnay 
 convert himself into a trustee of it by a proper declaration of the 
 trust. 
 
 Nor is it necessary, that the declaration of the trust should be 
 contained in the same instrument, which vests the legal estate in the 
 trustee ; although such is the more convenient as well as the more 
 usual course. In Inchiquin v. French, (e) Lord Thomond by his will 
 gave 20,000?. to Sir W. W., and by a deed-poll of the same date, 
 referring to his will, he declared that the legacy was given in trust 
 for C. ; and Lord Hardwicke held, that the trusts of the legacy were 
 well declared by the deed-poll. So in Wood v. Gox{d), a testatrix 
 
 (a) Bac. Us. 335; 2 Bl. Com. 336; (tZ) 2 M. & Cr. 684; and see Stubbs 
 
 1 Cruis. Dig. Tit. 12, Ch. I., s. 4 to 36. v. Sargon, 2 Keen, 255 ; S. C. 3. M. & 
 
 (6) Post, Part. II., Ch. I., page 229. Cr. 507; Smith v. Attersoll, 1 Russ.266. 
 (c) 1 Cox, 1. 
 
 ' See notes, post 229, &c. 
 
 ^ Rice V. Burnett, Spears Ch. 579 ; Lord v. Lowry, Baily Chan. 520. 
 
CREATION OF TRUSTEES BY WRITING. 81 
 
 bequeathed all her personal estate to A. for his own use and benefit, 
 trusting he would act in conformity with her wishes ; on the same 
 day she made another testamentary paper, giving several legacies ; 
 and Lord Cottenham held, that A. was a trustee for the payment of 
 those legacies. 
 
 But where there is an absolute conveyance by deed, or other act 
 inter vivos, the instrument by which the trust is created, must be 
 made in contemplation of or contemporaneously with the conveyance. 
 For, except in the case of fraud, no subsequent instrument executed 
 by the grantor would operate to deprive the grantee of his right to 
 the beneficial interest.(e) 
 
 And even if the gift be by will, no trust will be raised on any 
 instrument, subsequently executed, unless it operate as a revocation 
 of the will.(/)^ 
 
 Hence it is obvious, that it is not the legal conveyance, or transfer 
 of the property, but the declaration of the trust, that operates in the 
 
 (e) Adlington v. Cann, 3 Atk. 145, Kilpin v. Kilpin, Id. 520, 532. 
 151; Crabb v. Crabb, 1 M. & K. 511; (/) 3 Atk. 152. 
 
 ' In Briggs v. Penny, 13 Jurist, 905, a testatrix had made her will in 1835, 
 by which she bequeathed various charitable and other legacies, and gave to S. P. 
 £3000. and a like sum of £3000 in addition for the trouble she would have in 
 acting as executrix. She then gave further charitable and other legacies and 
 specific bequests, and then gave all the residue of her personal estate to the said 
 S. P., her executors, administrators, and assigns, " well knowing that she will 
 make a good use, and dispose of it in a manner in accordance 'with my views 
 and wishes." Four papers were found in the testatrix's handwriting, undated, 
 unsigned, and unattested, which were written after the date of the Wills Act, in 
 which she named various persons, and designated various charitable institutions, 
 as objects of her bounty, and gave directions for money being laid out in land 
 for charitable purposes. The will and codicil, and one other paper were admit- 
 ted to proof, but these four papers were not. It was held, that S. P. did not take 
 the residue beneficially, but was a trustee for the next of kin of the testatrix ; 
 and a reference was directed to the master to inquire and state whether the views 
 and wishes concerning the disposition of the residue, which were mentioned in 
 the will of the testatrix, were ever and when declared or made known by her, 
 in and by any instrument, paper or writing, or instruments, papers, or writings. 
 (Affirmed, post 71, note.) In a subsequent case, however, a testator bequeathed a 
 policy of insurance on his own life to A. and B., upon the uses of a letter signed 
 by himself, but at the date of the rule there was no such letter; subsequently the 
 testator addressed a note to his executor and signed a memorandum by which he 
 stated his wishes as to the disposition of the money to be received in respect to the 
 policy. He kept the policy in his possession until his death. It was held that no 
 trust was created. Johnson v. Bull, 9 Eng. L. & E. 160. In Dawson v. Dawson, 1 
 Chev. 148 (2d part), a person having executed his will, conveyed his property to 
 the uses of the will, by deed. It was decided that a trust resulted to the grantor 
 during his life, and that the profits for that period belonged to him absolutely; 
 but that property purchased, with the ccyrpus of the estate, went to the persons 
 named in the will. 
 
 .^ 6 
 
82 WHAT FIDUCIARY EXPRESSIONS CREATE A TRUST. 
 
 creation of the trustee. And it is by no means necessary, that this 
 declaration should be made by a formal deed or will. A simple 
 letter, or memorandum, or any writing of a similar untechnical and 
 informal character, will be sufficient, if it clearly express the gift to 
 be in trust, and sufficiently connect the trustee with the subject-mat- 
 ter of the trust. (.9') 
 
 And a person without parting with the legal possession of property 
 may, by a similar declaration of trust in favor of another, convert 
 himself into a trustee for the third party.(A) 
 
 In addition to the ordinary mode of treating trustees in the trans- 
 actions between private individuals, it may be observed, that trustees 
 are frequently appointed by special acts of parliament, for the par- 
 ticular or general purposes directed by the statute. However, trus- 
 tees thus specially created, do not materially differ in their ordinary 
 duties and functions from other trustees ; and they are equally 
 amenable to the jurisdiction and supervision of the Court of Chan- 
 cery. («) 
 
 By the statute 48 Geo. III. c. 149, a declaration of trust in writ- 
 ing must be stamped, in order to be admissible as evidence ; and 
 therefore if there be reason to suppose that the original instrument 
 was unstamped, the court will not receive a draft copy as secondary 
 evidence of its existence. (^) 
 
 r*651 *"^ written declaration of trust by the trustee constitutes 
 a perfect equitable title in the cestui que trusts, and will 
 prevail over the claim of the assignees of the trustee, if he subse- 
 quently become bankrupt . although the trust property remain in his 
 name and under his control. (Z) 
 
 II.— WHAT DIRECT FIDUCIARY EXPRESSIONS WILL CREATE A TRUST. 
 
 When there is a disposition of property by deed or other formal 
 instrument, operating inter vivos, it rarely happens that any question 
 can arise, whether a person takes beneficially, or as a trustee for 
 others. The cases on this point have usually arisen on the con- 
 struction of gifts by will ; although in deciding upon the effect of , 
 
 (g-) Smith V. Atteisoll, 1 Russ. 266; Hughes v. Stubbs, id. 478; Wheatley 
 
 Kilpin V. Kilpin, 1 M. & K. 520 ; Stubbs v. Purr, 1 Keen, 553 ; [Stapleton v. Sta- 
 
 V. Sargon, 3 M. & Cr. 503; Morton v. pleton, 14 Simons, 197; 2 Spence Eq. 
 
 Tewart, 2 N. C. C. 67. [Steere v. Steere, Jur. 53, and note ; Suarez v. Panipelly, 
 
 5 J. C. R. 1 ; Fisher v. Fields, 10 John. 2 Sandf. Ch. 336.] 
 
 R. 505; Menude v'. Delair, 2 Desau. (i) See Cottrell v. Hampton, 2 Vern. 
 
 164.] 5 ; Buchanan i;. Hamilton, 5 Ves. 722. 
 
 (fe) Exp. Pye, 18 Ves. 149; Meek v. [k) Rose v. Gierke, 1 N. C. C. 534. 
 
 Kettlewell, 1 Hare, 469; [1 Phill. 157;] (Q Pinkett v. Wright, 2 Hare, 120. 
 
WHAT FIDUCIARY EXPRESSIONS CREATE A TRUST. 83 
 
 an executory and informal instrument, not of a testamentary na- 
 ture, the court will adopt the same principles of construction as 
 have been established respecting wills.(TO) 
 
 Any expression manifesting an intention that the donee of pro- 
 perty is not to have the beneficial enjoyment of the whole, or some 
 part of it, will be binding on the conscience of the trustee, and 
 will in equity effectually exclude any claim by him to the beneficial 
 interest. (m) 
 
 For this purpose, it is by no means necessary that the donee 
 should be expressly directed to hold the property to certain "uses," 
 or "in trust," or as "trustee," although such terms, having a 
 defined and technical meaning, are more usually as well as more 
 properly employed. It is one of the fixed rules of equitable con- 
 struction, that there is no magic in particular words; and any 
 expressions that show unequivocally the intention of the parties to 
 create a trust, will have the same effect. It was said by Lord 
 Eldon, that the word "trust," not being made use of, "is a circum- 
 stance to be attended to, but nothing more ; and if the whole frame 
 of the will creates a trust, for the particular purpose of satisfying 
 which the estate is devised, the law is the same, though the word 
 'trust ' is not used."(o) 
 
 Thus, where a gift in a will is expressed to be "/or the benefit" 
 of others ;(p) or to be at the disposal of the donee "for" herself (1) 
 and children ;(§')* or "towards her support and her family" (r); or 
 
 (m) Countess of Lincoln v. D. of 140; Youmans v. Boulke, Riley, 134- 
 
 Newcastle, 12 Ves. 227; Blackburn ■«. Fisher t>. Fields, 10 J. R. 495, Story, 
 
 Stables, 2 V. & B. 369 ; Jervoise v. D. Eq. § 974, 1068.] 
 
 of Northumberland, 1 J. & W. 574; see (p) Jubber v. Jubber, 9 Sim. 503; 
 
 Stubbs V. Sargon, 2 Keen, 255, 273 ; S. Raikes v. Ward, 1 Hare, 445; Inderwick 
 
 C. 3. M. & Cr. 503 ; Croft v. Adam, 12 v. Inderwick, 8 Jur. 53 ; 13 Sim. 652. 
 Sim. 639. (5) Crockett D. Crockett, 1 Hare, 451. 
 
 (n) See Morice ^. Bishop of Durham, (r) Woods v. Woods, 1 M. & Cr. 
 
 10 Ves. 537. 401 ; [see the remarks on this case in 
 
 (0) King V. Denison, 1 V. & B. 273 ; 2 Phill, 553.] 
 [Porter u. Bank of Rutland, 19 Verm. 
 
 (1) It is immaterial that the donee in trust is himself entitled to a partial bene- 
 ficial interest, as one of the objects of the testator's bounty. Woods v Woods, 
 
 1 M. & Cr. 401; Crockett iJ. Crockett, 1 Hare, 451. S. C. 2 Phill. 553. [Hen- 
 nershitz' Estate, 16 Perm. St. 435; Mason v. Mason, 2 Sandf. Ch. 432, 477.] 
 
 ' Crockett v. Crockett, cited in the text, where the testator directed that all his 
 property should be " at the disposal of his wife,- for herself and children," sub- 
 sequently came up again in 5 Hare, 320, but that decision was overruled in S. C. 
 
 2 Phillips, 553, and it was held that there was no joint tenancy between the 
 wife and children ; but that the widow, though not entitled to the property, ab- 
 solutely, had a personal interest in it; and as between herself and her children, 
 was either a trustee of the fund with large discretionary powers as to the appli- 
 cation of it, or she had a power in favor of the children, with a life estate in 
 herself. And see remarks in Webb v. Woolls, 13 Eng. L. & Eq. 65. 
 
84 WHAT FIDUCIARY EXPRESSIONS CREATE A TRUST. 
 
 "to enable the donee to provide for or maintain" his children ;(s)' 
 or "for the express purpose of enabling him to present" to certain 
 persons ;(<) or where the testator " orders and directs" the donee 
 r*aR-\ to taJce care of and provide * for an individual •,{u) or where 
 the gift is expressed to be made "to the end" or "to the 
 intent" that the donee should apply it to certain purposes.(a;) In 
 all these cases the terms employed have been held sufficient to fasten 
 a trust on the conscience of the donee ; and it would be possible 
 to multiply instances of a similar construction to a much greater 
 length, were it not conceived that those already adduced have abun- 
 dantly exemplified the doctrine of the court on this point ; showing 
 that in every case the general purpose and intention of the donor, 
 and not the use of one particular term or another, will decide the 
 question, whether a party does or does not take in a fiduciary 
 character. («/) (1) 
 
 In all cases, however, the fiduciary words must be imperative on 
 the donee ; and if they confer a mere power or authority, and leave 
 it entirely at his discretion to apply or not to apply the gift to the 
 designated purpose, no trust will be created.(s) 
 
 But if a trust in favor of certain objects be once created ex vi 
 terminorum, a discretionary power of selection or distribution in 
 the donee, however ample, will not do away with the effect of the 
 trust previously declared, or render him less a trustee for the ob- 
 jects of that power.(a) 
 
 («) Brown u. Cassamajor, 4Ves. 498; v. Bank of Rutland, 19 Verm. 140; 
 
 Hamleyi;. Gilbert, Jao. 3 54 jWetherelli). Erickson v. Willard, 1 N. Hamp. 209.] 
 
 Wilson, 1 Keen, 80; [see Brown iJ.Paun, (s) Mnrice tj. Bishop of Durham, 10 
 
 1 Eng. L. & Eq. 136; Costerbadie v. Ves. 536; Ommaney ij. Butcher, T. & 
 
 Costerbadie, 6 Hare, 416; Crockett v. R. 270; Gibbs v. Rumsey, 2 V. & B. 
 
 Crockett, 2 Phill. 553.] 397; Ball v. Vardy, 1 Ves. Jun. 270; 
 
 (J.) Stubbs i;. Sargon, 2 Keen, 255; Thorp i;. Owen, 2 Hare, 607; Randall 
 
 and 3 M. & Cr. 507. v. Hearl, 1 Anstr. 124. See post. Sect. 3, 
 
 (m) Broad v. Bevan, 1 Russ. 511, n. as to where a power will be a trust. 
 
 Ix) Burrell v. Burrell, Ambl. 660; (a) Burrell v. Burrell, Ambl. 660; 
 
 Raikes ?). Ward, 1 Hare, 445. Hockley v. Mawby, 1 Ves. Jun. 150; 
 
 (y) See -Gilbert v. Bennett, 10 Sim. Walsh v. Wallinger, 2 R. & M. 78 ; vide 
 
 371 ; Thorp v. Owen, 2 Hare, 607; Kil- post, Sect. 3. 
 vington D. Gray, 10 Sim. ,293. [Porter 
 
 (l)The effect of dubious fiduciary expressions in creating an obligatory trust, 
 is necessarily considered to some extent in the two following sections, to which 
 the reader is referred. 
 
 ' But in these cases where the interest of legacies or rents, or the proceeds 
 of shares, are to be applied by the parent to the support and maintenance of 
 the children, though a trustee as to the corpus, the parent takes the interest, &c., 
 subject to no account, provided he discharges the duty of maintaining and 
 educating. Brown t). PauU, 1 Eng. L. & Eq. 130; Hadowt). Hadow, 9 Sim. 438. 
 
A POWER IN THE NATURE OF A TRUST. 85 
 
 Where a gift is conclusively and absolutely impressed with the 
 character of a trust, the trustee will not in any event be entitled to 
 the beneficial enjoyment, although the particular object of the 
 donor's bounty becomes unable to take it. "Wherever," said Lord 
 Eldon, " there is a plain declaration, that a person, to whom pro- 
 perty is given, is to take it in trust ; there, though the trust is not 
 declared, or is ineffectually declared, or becomes incapable of taking 
 effect, the party taking will be a trustee, — if not for those who were 
 to take hy the instrument, for those who take under tlie disposition of 
 the law.{h) 
 
 As a general rule, therefore, if the particular purpose declared 
 does not extend to exhaust the entire beneficial interest, or for any 
 reason cannot be carried into execution, the donee will hold the 
 interest thus undisposed of as a trustee by resulting trust for the 
 heir or next of kin of the donor. This rule, however, and its ex- 
 ceptions will be reserved more conveniently for discussion in a future 
 chapter.(e) 
 
 According to the general principles of construction, the court will 
 always strive to give effect to every part of an instrument. There- 
 fore, where a bequest to a person is couched in such terms, as would, 
 if uncontrolled, undoubtedly convert him into a trustee, but expres- 
 sions are added, indicating an intention to give him the beneficial 
 enjoyment, — as, *for instance, where it is given him " for his r^/fc^-i 
 own use and benefit ;" the court will endeavor, if possible, 
 to give effect to those additional words and will decree the donee to 
 take absolutely and not as a trustee. (d) 
 
 III.— WHERE A POWER WILL CREATE A TRUST. 
 
 In the abstract, the distinction between a power and a trust is 
 sufSciently marked and obvious. "Powers," as Lord C. J. Wilmot 
 has said, " are never imperative ; they leave the act to be done at the 
 will of the party to whom they are given. Trusts are always impera- 
 tive, and are obligatory upon the conscience of the party intrusted. "(e) 
 In practice, however, it frequently happens that a power and a trust 
 are so intimately blended, either by the express terras or by neces- 
 sary construction, that it becomes a question of great nicety to de- 
 
 (6) Morice v. Bishop of Durham, 10 well u. Bardswell, 9 Sim. 319; and see 
 
 Ves. 537. [Pennyi). Briggs. 13 Jur. 905.] Meredith ti. Heneage, 1 Sim. 555. 
 
 (e) Post, Div. II., Ch. I., Sect. 3. (e) Wilm. 23 ; Brown v. Higgs, 8Ves. 
 
 Id) Lawless v. Shaw, 1 LI, & Goul. 570; 2 Sugd. Pow. 173, 6th ed.; see 
 
 558; [5 CI. & F. 129.] Wood v. Cox, 1 Godolphin v. Godolphin, 1 Ves. 21. 
 Keen, 317; and 2 M. & Cr. 684; Bards- 
 
86 A POWER IN THE NATURE OF A TRUST. 
 
 termine, whether the direction is or is not imperative on the con- 
 science of the donee, so as to amount to a trust. 
 
 Lord Eldon, in his judgment in the case of Brown v. Higgs, after 
 clearly stating and supporting the distinction between a power and a 
 trust, adds : " there is not only a mere trust and a mere power, but 
 there is also known to the court a power, which the party, to whom 
 it is given, is entrusted and required to execute." And his lordship 
 afterwards states the principle of the cases to be, " that if the power 
 is a power, which it is the duty of the party to execute, made his duty 
 by the requisition of the will, put upon him as such by the testator, 
 who has given him an interest extensive enough to enable him to dis- 
 charge it, he is a trustee for the exercise of the power, and not as 
 having a discretion whether he will exercise it or not ; and the court 
 adopts the principle as to trusts, and will not permit his negligence, 
 accident, or other circumstances, to disappoint the interests of those 
 for whose benefit he is called upon to execute it."(/) 
 
 In this, as in most other similar cases, the diflBculty is, to apply 
 the general rule to the particular case. When it is laid down, that it 
 must be the duty of the donee of the power to exercise it, the doubt 
 still remains, as to what will create such a duty, independently of 
 any imperative directions in the will. On this point it may be ob- 
 served, that the question, whether a power is simply such, or one in 
 the nature of a trust, has hitherto arisen almost invariably on powers 
 in favor of children or relations ; and it might be a question, admit- 
 ing of very grave argument, whether the construction, that has been 
 adopted in those cases, would be extended to strangers.(^) 
 
 In examining the doctrine, as laid down above by Lord Eldon, as 
 well as the decided cases on this subject, there appears to be a ma- 
 terial distinction between those cases where the absolute interest is 
 r*«aT g^^^° '^ ^^^ *donee of the power, and where consequently the 
 L J exercise of the power can take effect only out of that interest, 
 and where the person by whom the power is to be exercised, takes only 
 a previous estate for life, to which the power is only collateral A). 
 
 In the former case the donee of the power himself would be entitled 
 beneficially upon his refusal or omission to exercise it ; and the in- 
 tention or wish of the testator to qualify the gift to him would thus 
 be disappointed. Consequently, in such cases, the court has always 
 
 {/) Brown v. Higgs, 8 Ves. 570, 4. Bull v. Vardy, 1 Ves. jun. 270; 2 Sugd. 
 
 [See Miller v. Meetch, 8 Barr, 417; Pow. 175, 6th ed. 
 
 Gibbst). Marsh, 3 Metcalf, 243 ; Withers (ft) See Crosslingi). Crossling, 2 Cox. 
 
 V. Yeadon, 1 Rich. Ch. 324.] 396. 
 
 (.g) Jones V. Clough, 2 Ves. 367 ; see 
 
A POWER IN THE NATURE OF A TRUST. 87 
 
 endeavored to give effect to the apparent intentions of the testator 
 by treating the donee as a trustee for the objects of the power.(«) 
 
 But where the execution of the power is not to take effect out of 
 the interest of the person by whom it is to be exercised, — as where it 
 is given to a tenant for life to be exercised after the determination 
 of his life estate; or d fortiori yihere the party, to whom it was given, 
 takes no ienefieial interest, the same arguments on behalf of the ob- 
 jects of the power do not hold good, and the decisions in favor of 
 their taking, in default of the exercise of the power, are not so uni- 
 form. Indeed where they have been held entitled, in default of ap- 
 pointment, the decision has proceeded, not on the ground that the 
 power was in the nature of a trust in their favor, but that the bequest 
 operated as a'direct gift to the objects in default of the exercise of the 
 power.(A;)' 
 
 (i) Hardyng v. Glynn, 1 Atk. 468 ; (k) Bull oi. Vardy, 1 Yes. jun. 271 ; 2 
 Brown V. Higgs, 4 Ves. Jim. 708 ; S. C. Sugd. Pow. 177; and see Cox «. Basset, 
 8 Ves. 561 ; Forbes v. Ball, 3 Mer. 437; 3 Ves. 155, 164. 
 Birch V. Wade, 3 V. & B. 198. [Wace v. 
 Mallard, 11 Eng. L. & E. 4.] 
 
 'A testator devised his real estate and negroes to his son, G. W. in trust, (1) to 
 apply the rents, issues and profits to the use of himself and family, and the 
 education of his children; and (2) to give or devise by deed or will, the said 
 property (and the rents, issues and profits thereof, over and above what he 
 should apply to the uses aforesaid) " unto all or any child or children by^him 
 begotten, or to be begotten, in such way or manner, and in such proportion and 
 for such uses, estates and interests, as he shall see fit and proper." G. W. died, 
 leaving a will whereby he devised the whole of his estate to his wife, with di- 
 rections to his executors (his wife and sons), to act under " his father's will in 
 trust, and in every respect and manner intended by their grandfather." It was 
 held (1) that the legal title was vested in G. W., coupled with a power in trust to 
 appoint at his discretion among his children,- (2) but the power could not be 
 delegated, and (3) that as G. W. had neglected to exercise the power, hischildren 
 were entitled to divide the property equally. Withers v. Yeadon, 1 Rich. Eq. 324. 
 
 In Collins v. Carlisle's heirs, 7 B. Monr. 14. a husband devised all of his es- 
 tate, after the payment of his debts, " wholly to his wife, to be disposed of by her, 
 and divided among his children at her discretion," and it was held that the 
 wife took an estate for life, with power to give it to her children, or to appro- 
 priate it to their use at her discretion; and, she dying, the children took the 
 undisposed portions of the estate under the will, and not as her heirs. 
 
 A testator, after making provision for certain relatives, and giving the use of 
 the estate in question to his- wife during her life, disposed of the residue of his es- 
 tate in these words : " All the restand residue of my estates, both real and per- 
 sonal, I give and bequeath to my two brothers A. and B., whom I appoint my 
 executors, with full confidence that they will dispose of such residue among our 
 brothers and sisters, and their children, as they shall judge shall be most in need 
 of the same ; this is to be done according to the best of their discretion." A bill 
 in equity was filed to determine the right of the various parties, claiming under 
 the will, and it was held that a trust had been created by the will in favor of the 
 brothers and sisters, and their children, A. and B. and their children, being ex- 
 
88 A POWER IN THE NATURE OF A TRUST. 
 
 In Bull V. Vardy,(Z) a testator, without giving his wife any interest 
 in his general estate, empowered her to give away at her death 
 1,000?., lOOZ. of it to A., and 1001. to B. ; the rest to be disposed of 
 by her will. The wife died without having made any disposition of 
 the lOOOZ. or any part of it. On a suit by A. against the wife's exe- 
 cutor, claiming the 1001., the Court of Exchequer held, that this 
 was no absolute legacy, but a naked power in the wife, and dis- 
 missed the bill. 
 
 In the Duke of Marlborough v. Godolphin,(m) a gift by a testator 
 of 30,000Z. to his wife for life, and after her decease, to be divided 
 and distributed to and amongst such of his children, and in such 
 manner and proportion, as she should appoint, was held by Lord 
 Hardwicke to be a mere power, and not a trust for the children in 
 default of appointment. His lordship appears to have drawn a dis- 
 tinction between a gift "amongst my children as A. should appoint," 
 which he considered a trust, and a gift amongst such of my children, 
 &c.," which he held to be a mere power.(w) 
 
 In Crossling v. Crossling,(o) there was a devise of real estate to 
 the wife for life, with a direction that " she should dispose of the 
 same amongst testator's children by her at her decease, as she should 
 think proper." The wife did not exercise this power ; and the Court 
 of Exchequer refused to restrain the heir from proceeding with an 
 ejectment against the children, holding that this devise did not create 
 a trust for them, but was a mere power in the wife, which she never 
 executed. 
 
 r*fiQl *^^ *^® ^^^^ °^ Brown v. Higgs,(p) already mentioned, an 
 '- -^ estate was devised to one of the sons of S. B., as the father 
 should direct by a conveyance in his lifetime or by his will ; and 
 though the point did not call for decision, Lord Arvanley seemed to 
 think this a mere power : an opinion which is supported by the con- 
 currence of Sir E. Sugden.(^) 
 
 However, at the present day, the courts will endeavor, if possible, 
 
 {I) 1 Ves. jun. 270. (o) 2 Cox, 396. 
 
 (m) 2 Ves. 61 ; 5 Ves. Jun. 506. (p) 4 Ves. jun. 708. 
 
 (n) See2 Sugd. Pow. 178. Howeverit (g) 2 Sugd. Pow. 180, 6th ed. 
 seems that this distinction can no longer 
 be supported, vide post. 69. 
 
 eluded therefrom ; so that the estate vested in A. and B. as trustees for the brothers 
 and sisters and their children, to be enjoyed after the death of the widow, and 
 consequently that after-born children and those who became needy there- 
 after, could not take ; and that the trust was not void by reason of the uncertainty 
 of the persons for whose benefit it was created. Bull v. Bull, 8 Connect. 47. 
 The court also in this case, the executors having died without an appointment, 
 directed a reference to determine who were the most needy. See also Harrison 
 V. Harrison, 2 Leigh. 1, and post, p. 71, and notes. 
 
A POWER IN THE NATURE OF A TRUST. 89 
 
 to .construe a bequest of this description into a gift by implication to 
 the objects of the power, in default of its being exercised, and if the 
 cases of Duke of Marlborough v. Godolphin, or Crossling v. Cross- 
 ling, were again to occur, there is little doubt but that the children 
 would be held to take under the terms of the bequest, although the 
 power were not exercised in their favor. (r) Thus where the tenant 
 for life is desired at his death " to give it amongst his children as he 
 should think fit ;"(s) or where the residue, at the death of the tenant 
 for life, " is to be disposed of amongst her children as she should 
 think proper ;"(i) or where there is a gift, after the death of testa- 
 tor's wife, to such of his grandchildren as she should appoint,(M) (and 
 many other instances of the same nature might be given ;) the power 
 has been held to extend only to the selection from, or distribution 
 amongst, the class of objects ; and in default of the exercise of that 
 power they will be all equally entitled.(a;) 
 
 The case of Brown v. Pocock,(^) before Sir L. Shadwell, V. C, is 
 a remarkable instance of the disposition of the courts to adopt this 
 construction in favor of the objects of a power. There a testatrix 
 directed a sum of £8000, three per cents., to be set apart, and the 
 dividends paid weekly to A. and B. during their lives ; and by a 
 codicil she gave to A. the power of leaving a moiety of that fund to 
 and for the benefit of his wife and children, in such manner as he 
 should by will duly executed give and bequeath the same. A. died, 
 having made an invalid appointment of the fund ; and the Vice-Ohan- 
 cellor decided that it was clear that the testatrix intended the wife 
 and children to take, and therefore that there was a gift to them by 
 implication subject to the power. In the very recent case of Croft 
 V. Adam,(s) a widow upon her second marriage settled a fund in 
 trust for her own separate use for life, and declared that subject 
 thereto the fund should, as and when she should think fit or he advised, 
 be settled in trust for the benefit of A. her daughter by her first 
 marriage, and her daughter's intended husband and her children, in 
 such manner and for such rights and interests as should be agreed 
 upon either previous to or after the marriage of A. with her consent : 
 and that she (the widow) should be at free liberty and have full power 
 and authority to settle the fund or any part of it in trust for the imme- 
 
 (r) See Lord Eldon's observations in Madison v. Andrews, 1 Ves. 57 ; Hock- 
 Brown V. Higgs, 8 Ves. 576, vide et. 2 ley v. Marsby, 1 Ves. jun. 143; Long- 
 Sugd. Pow. 179, 180. moore v. Brown, 2 Ves. 124; Fowler i). 
 
 (s) Mason v. Limbury, 2 Sugd. Pow. Hunter, 2 Y. & J. 506 ; Walsh v. Wal- 
 
 181. linger, 211 &M. 78; Kennedy t). Kings- 
 
 (<) Kemp t). Kemp, 5 Ves. 849. ton, 2 J. & W. 431. [Whitehurst v. 
 
 Ill) Wilts V. Boddington, 3 Bro. C. C. Harker, 2 Ired. Ch. 292.] 
 
 95. (^) 6 Sim. 257. 
 
 (x) Davy v. Hooper, 2 Vera. 665; {z) Croft v. Adam, 12 Sim. 639. 
 
90 A POWER IN THE NATURE OP A TRUST. 
 
 diate benefit of her daughter and children ; but if the daughter should 
 not he married in her mother's lifetime, then that the fund should be 
 ^^„ in trust for the daughter's benefit and a vested *interest in 
 L J her at 21, with a trust over on the deatli of the daughter with- 
 out marrying in the mother's lifetime. It was held by the Vice- 
 Chancellor of England, that this was not a power, but a trust for the 
 daughter and her husband and children, although the mother, if she 
 thought fit, might modify the interests of the cestui que trusts.{z) 
 
 Where there is an express limitation over in default of the power 
 being exercised, that of course will exclude the implication of any 
 gift arising from the terms of the power itself.(a) 
 
 There has been already occasion to observe, that where a gift is 
 once clearly impressed with the character of a trust, a discretionary 
 power, however ample, of controlling its application, will not alter 
 that character.(5) And it is immaterial, whether the trustee in such 
 cases takes a beneficial interest jointly with the objects of the 
 power ;(c) or whether the power be merely a collateral one, either 
 from the trustee taking no beneficial interest in the trust estate,(d) 
 or from its attaching only after the determination of the life estate 
 given to him.(e) 
 
 The circumstance that the discretionary power goes to the selection 
 from amongst a class of objects, as well as the distribution or appor- 
 tionment of their interests, will not aflfect the stringency of the trust; 
 for it seems that the distinction taken by Lord Hardwicke, in the 
 Duke of Marlborough v. Godolphin,(/) cannot now be supported. (5^) 
 
 And though the power of selection extends to one class of persons, 
 or another, in the alternative, it has been held that the trust will be 
 equally binding on the donee. (A)^ 
 
 (z) Croft V. Adam, 12 Sim. 639. terton v. Sutherland, 9 Ves. 445; Kemp 
 
 (a) Pritchard'u. Juinchant, Ambl. 126; v. Kemp, 5 Ves. 849. 
 
 S. C. SVes. 596, n.; 2 Sugd. Pow. 183. (/) 2 Ves. 61. 
 
 (6) Ante, Sect. 2. (g-) Harding v. Glyn, 1 Atk. 469 ; 
 
 (c) Burrell v. Burrell, Ambl. 660; Witts 1;. Boddington, 3 Bro. C. C. 95; 2 
 Raikes v. Ward, 1 Hare, 445; Hockley Sugd. Pow. 480 ; Brown i). Higgs, 4 Ves. 
 V. Mawbey, 1 Ves. jun. 143; Harding 708; and 8 Ves. 561; Cruwys v. Col- 
 V. Glyn, 1 Atk. 469; Brown v. Higgs, 4 man, 9 Ves. 319; Birch v. Wade, 3 V. 
 Ves. 708; Forbes v. Ball, 3 Mer. 437. & B. 198. 
 
 [1 Rich. Ch. 324; 7 B. Monr. 14.] Qi) Brown v. Higgs, 4 Ves. 708; 5 
 
 (d) Reade t). Reade, 5 Ves, 744. Ves. 495; and 8 Ves. 561; Longmore 
 
 (e) Kennedy 0. Kingston, 2 J. & W. v. Broom, 7 Ves. 124; Jones v. Torin, 
 431; Morgan D. Surman, 1 Taunt. 289; 6 Sim. 255; see Prevost v. Clarke, 2 
 Walsh V. Wallinger, 2 R. & M. 78 ; Gas- Mad. 458. , 
 
 'In Penny v. Turner, 2 Phillips, 693, there was a gift to the testator's three 
 sisters or their children, as his mother should by deed or will appoint, and the 
 Lord Chancellor held it to be a gift, in default of appointment, to the whole class 
 of daughters and the children, not on the ground that or was to be construed and, 
 
CREATION OP TRUSTS BY PRECATORY WORDS. 91 
 
 In all these cases, if the discretionary power be not exercised, the 
 •whole of the objects who were within the power, will in general take 
 equally, and no one else can be entitled.(«y 
 
 In some of the earlier cases the court has assumed the right of 
 exercising a discretionary power of selection or application given to 
 .trustees.(it) This jurisdiction, however, is now declaimed ; and the 
 court will not only abstain from exercising such a power itself, but 
 will even refuse to interfere with or to control the trustee in the 
 exercise of his discretion, unless improper condact be shown ;{l) and 
 even in that case the improper appointment will merely be set aside, 
 and the fund left to devolve, as if the power had not been exer- 
 cised. (m) 
 
 «IV.— WHERE WORDS OP RECOMMENDATION, ETC., WILL ^^j-.-, 
 CREATE A TRUST. L '^i 
 
 It frequently happens that an absolute gift of property is made to 
 a person by will, accompanied by expressions, indicating a wish on 
 the part of the testator, that certain other parties should participate 
 in the beneficial enjoyment. The strong disposition of the courts 
 to give effect to the intentions of testators has given rise to a spe- 
 cies of trusts founded on expressions of this nature, and differing in 
 some respects from absolute trusts. These recommendatory trusts 
 will be enforced in favor of the particular objects or purposes 
 thus designated, although they will be insufficient to impress the gift 
 with the character of a trust generally ; and if the particular ob- 
 ject or purpose designated, cannot take or fail, the first taker will 
 be entitled to the benefit of the failure, and will hold absolutely dis- 
 charged from any trust. 
 
 (i) Kennedy i). Kingston, 2 J. & W. Q) Alexander -o. Alexander, 2 Ves. 
 
 431; Walsh v. Walliriger, 2 R. & M. 640; Kemp. v. Kemp, 5 Ves. 849. See 
 
 78; KemptJ.Kerap, 5Ves. 849. [With- Wood ti. Richardson, 4 Beav. 174; Pratt 
 
 ers V. Yeadon, 1 Rich. Ch. 324.] v. Church, ib. 177, n. [Penny v. Tur- 
 
 (4) Warbnrton v. Warburton, 2 Vern. ner, 2 Phill. 497 ; Prendergrast v. Pren- 
 
 420; Longmore -u. Broom, 7 Ves. 124; dergrast, 3 Engl. L. & E. 16.] 
 
 2 Sudg. Pow. 190 ; Wareham v. Brown, (m) 5 Ves. 849. 
 2 Vern. 153; Lewis i>. Lewis, 1 Cox, 
 162. 
 
 but because it was referable only to the power given the mother of selection 
 among the class, and as that power could not be exercised by the court, the 
 whole must take equally. 
 
 ' In Bull V. Bull, 8 Conn. 48, stated ante, page 68, note, the executors having 
 died without exercising the power of selection, the court directed a reference to 
 determine " who among the brothers and sisters and their children were the 
 most needy" in the terms of the devise; holding that it was competent to exer- 
 cise the discretion. 
 
92 CREATION OF TRUSTS BY PRECATORY WORDS. 
 
 It has been established from a series of cases, that where a be- 
 quest is accompanied by words expressing a command, recommenda- 
 tion, entreaty, wish, or hope, on the part of the testator, that the 
 donee will dispose of the property in favor of another, a trust will 
 be created : — 1st, If the words on the whole are sufBciently impera- 
 tive ; 2d, If the subject be suflBciently certain ; and 3d, If the ob- 
 ject be also sufficiently certain. (w) 
 
 I. With regard to the nature of the recommendatory expres- 
 sions, — no particular words are necessary. It has been said by 
 Lord Redesdale, that it is sufficient for a testator to express a desire 
 as to the disposition of the property ; and the desire so expressed 
 amounts to a command.(o) 
 
 Thus the words " desire,"(p) " will and desire.'^?) " request,(j-) 
 "wish and request, "(s) "entreat,"(() "recommend,"(M) "hope, "(a;) 
 "in the fullest confidence,"(y) "not doubting,"(2) "trusting and 
 wholly confiding,"(a) have been considered sufficient to raise a trust, 
 where the two other requisites, viz. : certainty of the object, and 
 the subject are also complied with.' 
 
 (n) Malim v. Kneightley, 2 Ves. jun. (() Prevost v. Clark, 2 Mad. 458 ; 
 
 335; Paul v. Compton, 8 Ves. 380; Taylor n. George, 2 V. & B. 378. 
 
 Wright V. Atkins, T. & R. 157 ; Knight (u) Malim v. Kneightley, 2 Ves. jun. 
 
 •u. Knight, 3 Beav. 172. [Harrison v. 333; Tibbitts ^. Tibbitts, 19 Ves. 656; 
 
 Harrison, 2 Gratten 1 ; Lucas v. Loc- Harwood v. West, 1 Sim. & St. 387 
 
 hart, 10 Sm. & M. 466.] Ford v. Fowler, 3 Beav. 146 ; overrul- 
 
 (o) Gary v. Carry, 2 Sch. & Lef. 189. ing Cunliffe v. Cunliffe, Arab. 686, 
 
 [But see Knight v. Boughton, 8 Jur. [But see post, page 72 note.] 
 
 923; 11 CI. & F. 513; and Williams «. {x) Harland u. Trigg, 1 Bro. C. C 
 
 Williams, 5 Eng., L. & E. 50.] 144. 
 
 (p) Mogridge v. Thackwell, 7 Ves. (,y) Wright i>. Atkins, 1 V. &B. 313; 
 
 36 ; Mason v. Limbury, cited in Vernon S. C.T. & R. 143 ; Podmorei). Gunning, 
 
 V. Vernon, Ambl. 4; Harding v. Glin, 1 7 Sim. 644; [Wace v. Mallard, 11 Eng. 
 
 Atk. 468 ; Cruwys v. Colman, 9 Ves. L. & Eq. 4. But see Webb v. WooUs, 
 
 319; Legge v. Asgili, T. & R. 265, n. 13Eng.L.& Eq. 63, and post 72, note.] 
 
 (g) Edes v. England, 2 Vern. 466; (z) Massey u. Sherman, Ambl. 520; 
 
 Birch «. Wade, 3 V. & B. 198 ; Forbes Parsons v. Baker, 18 Ves. 476; Taylor 
 
 V. Ball, 3 Mer. 437. v. George, 2 V. & B. 378. 
 
 (r) Nowlanu Nelligan, 1 Bro. C. C. (a) Wood v. Cox, 1 Keen, 317; S. 
 
 489 ; Pierson v. Garnet, 2 Bro. C. C. 38 ; C. 2 M. & Cr. 684; Griffiths v. Evans, 
 
 EadeiJ. Eade, 5Mad. 118. 5 Beav. 241. [Baker v. Mosley, 12 
 
 (s) Foley V. Parry, 2 Sim. 138; S. C. Jur. 740.] 
 2 M. & K. 138. 
 
 'In Briggs v. Penny, 3Mac.&G. 546, 8 Eng. L. & Eq. 231, 16 Jur. 93, affirm- 
 ing S. C. 13 Jur. 905, the rule on this subject was thus laid down by Lord Chan- 
 cellor Truro as the result of the authorities. " Words accompanying a gift or 
 bequest, expressions of confidence, or belief, or desire, or hope, that a particu- 
 lar application will be made of such bequest, will be deemed to import a trust 
 upon these conditions : — First, that they are so used as to exclude all option or 
 discretion in the party who is to act, as to his acting according to them or not; 
 
CREATION OF TRUSTS BY PRECATORY WORDS. 93 
 
 Where, however, the expressions used, either in themselves or 
 when coupled with the context, are such as confer only a power of 
 disposition on the donee, and the application or non-application of the 
 property to the *purpose designated is left entirely at his dis- p^h^o-i 
 cretion, no trust will be created. Thus where a testator " em- '- 
 powered " his wife to give away at her death certain sums to par- 
 ties named in his will, and the wife died without making any ap- 
 pointment : it was decided by Lord Chief Baron Eyre, that no trust 
 waS created in favor of those parties, it being a mere naked authority 
 in the testator's wife.(6) 
 
 And if the testator himself declare, that the words of recommen- 
 dation are not to be considered as words of injunction, it is clear that 
 they will not create an obligatory trust against the donee. Thus in a 
 very recent case a testator, after giving his daughter an absolute power 
 of appointment by will over certain property, " recommended, though 
 he did not absolutely enjoin, his said daughter to distribute the same 
 at her decease amongst her daughters in equal shares." And it was 
 held by Sir K. Bruce, V. C, on the principle above stated, that 
 these words were merely precatory, and created no trust.(c) In the 
 same case a question was raised whether the words, " I most earn- 
 estly wish, that my said sons may give or settle their respective 
 shares on their respective daughters in preference to their sons" — 
 created a trust for the daughters : but the Vice-Chancellor declined 
 to express an opinion on this point, which it became unnecessary to 
 decide.(c?)^ 
 
 In modern times a strong disposition has been indicated on the 
 part of the judges not to extend the doctrine of raising a trust upon 
 
 (6) Bull V. Vardy, 1 Ves. jun. 270; Coll, Ch. 582, 590, 7 Jur. 1197. [See 
 
 and see Randall u Hearle, 1 Anst. 124: Huskinson v. Bridge, 3 Eng. L. & E. 
 
 and ante, Sec. 3 ; Coxe v. Basset, 3 180.] 
 
 Ves. 157. (d) 2 Young & Coll, Ch. 592. 
 
 (c) Young V. Martin, 2 Young & 
 
 secondly, the subject must be certain ; and thirdly, the object expressed not too 
 vague or indefinite to be enforced." (See Corporation of Manchester v. Osburn, 
 1 House Lords, Cas. 272.) In this case a testatrix gave various legacies to S., 
 and gave to S. P., whom she appointed sole executrix, £3000, and a like sum of 
 £3000 in addition for the trouble she would have in acting as executrix. She then 
 made other bequests, and then gave all the rest, residue, and remainder of her 
 estate, of her personal estate to S. P. ; her executors, administrators, and assigns, 
 " well knowing that she will make a good use, and dispose of it in a manner in ac- 
 cordance to my views and wishes." It was held that S. P. did not take the residue 
 beneficially. 
 
 ' Although the words " it is my wish" in a will generally operate as a direct 
 bequest, yet they will be construed to mean rather an inclination of mind, than 
 an act of the will, where a diflferent construction would produce repugnancy 
 or inconsistency, Brunson v. Hunter's Admin., 2 Hill, Ch. 490 ; and so of words 
 of recommendation or desire generally, Knott v. Cottee, 2 Phill. 192. 
 
94 CREATION OF TKUSTS BY PRECATORY WORDS; 
 
 words of recommendation, &c., &c., but as far as the authorities will 
 allow, to give the words their natural and ordinary effect ; unless it 
 be clear, that they are intended to be used in a peremptory sense. 
 It has been remarked by a learned judge, (Sir A. Hart,) that " the 
 first case, that construed words of recommendation into a command, 
 made a will for the testator; for every one knows the distiction be- 
 tween them. The current of decisions of late years has been against 
 converting the legatee into a trustee. "(e)' 
 
 (e) Sale v. Moore, 1 Sim. 540 ; vid. Briggs, 2 Phil. 583 ■ Webb v. Woolls, 
 
 at Meredith v. Heneage, 1 Sim. 551; 13 Eng. L. & Eq. 63; Johnston v. 
 
 Wright t). Atkins, 1 V. & B. 315; Ex Rowlands, 2 De G. & S. 356, 12 Jur. 
 
 parte Payne, 2 Y. & Coll. 636. [Knight 769 ; Mekonkey's Appeal, 1 Am. Law 
 
 V. Boughton, 11 CI. & F.513 ; Williams v. Register, 360.] 
 Williams, 5 Eng. L. & E. 47 ; White v. 
 
 ' The more recent English decisions have followed the lead of those stated in 
 the text. Thus, where a testator gave £2000 to his wife, to be disposed of by 
 her will in such way as she should think proper, but he recommended her to 
 dispose of one-half thereof, among such of his relations as she should think pro- 
 per (Johnston v. Rowlands, 12 Jur. 769; 2 De G. & Sm. 356), it was held that 
 no trust was created. So where there was a bequest for life to a wife of the use 
 of all the testator's property, and he directed that certain specific chattels should 
 be finally appropriated as she pleased, with a sum of £4000, which sum, how- 
 ever, he recommended her to divide among certain persons. White v. Briggs, 15 
 L. J. Oh. 182, overruling S. C. 15 Sim. 33. In Williams v. Williams, 5 Eng. 
 L. & Eq. 47 (15 Jur. 715), a testator gave all his personal property to his wife 
 absolutely; but in a codicil in the form of a letter addressed to his wife, used 
 these words, " It is my wish that you should enjoy everything in my power to 
 give, using your judgment as to where to dispose of it amongst your children, 
 when you no longer can enjoy it yourself. But 1 should be unhappy if I thought it 
 possible thai any one not of your family, should be the better for what I feel 
 confident you will so well direct the disposal of" It was held by V. Ch. Knight 
 Bruce, that the widow took the property absolutely. He observed with regard 
 to the modern decisions on the subject, " The point really to be decided, in all 
 these cases, is, whether.looking at the whole context of the will, the testator has 
 meant to impose an obligation on his legatee, to carry his wishes into eifect, or 
 whether having expressed his wishes he has meant to leave it to the legatee, 
 to act on them or not at his discretion. I doubt if there exist any formula for 
 bringing to a direct test the question, whether words of ' request' a ' hope' or 
 ' recommendation,' are or are not to be considered as obligatory." See the re- 
 marks of V. Ch. Wigram, 2 Hare, 510. In Knott v. Cottee, 2 Phill. 197, it was 
 ruled that such words would not raise a trust, if they conflicted with any provi- 
 sions of a more definite and positive import m the same instrument. In a very 
 recent case, Webb v. Woolls, 13 Eng. L. & Eq. 63, the Vice Chancellor (Kin- 
 dersley) laid it down as a rule of construction in such cases, that where the latter 
 words of a sentence in a will go to cut down an absolute gift, contained in the first 
 part of the sentence, and are inconsistent with such gift, the court will, if it can, 
 give efiect to the absolute gift. Therefore, where in that case, the testator had 
 devised in these words ; " All my property of whatever description, whether in 
 possession, &c., I give unto my dear wife, her executors, administrators, and 
 assigns, upon the fullest trust and confidence reposed in her, that she will dis- 
 
CREATION OF TRUSTS BY PRECATORY WORDS. 95 
 
 In the case of Sale v. Moore,(/) a testator gave his residue to his 
 ■wife, " recommending to her and not doubting that she would con- 
 
 (/) Salev. Moore, 1 Sim. 534. 
 
 pose of the same, for the joint benefit of herself and my children, it was held 
 an absolute gift in the wife, and that no trust had been created for the children. 
 In Wace v. Mallard, 11 Eng. L. &E. 4, however, a bequest by a testator of all 
 his property to his wife, her executors, administrators, and assigns, for her sole 
 benefit, in full confidence that she would appropriate the same for the benefit of 
 his children, was held to be a gift of an estate for her life, with a power of ap- 
 pointment in favor of her children, and a gift to them, in default of appointment, 
 as joint tenant. The opinion of V. Ch. Turner, is very brief and unsatisfactory 
 in this case, which is obviously in conflict with the foregoing. See further 
 Winch «. Bruton, 14 Sim. 379. A direction for a will that a certain person should 
 be employed as agent and manager of the testator's estates, whenever his trus' 
 tees should have occasion for the service of a person in that capacity, does not 
 create a trust which equity could enforce. Finden v. Stephens, 2 Phili. 142. See 
 2 White & Tudor, Eq. Lead. Cases, II. p. 332, 348, notes to Harding v. Glyn. 
 
 But few cases on this subject have occurred in the United States. In Erickson 
 V. Willard, 1 N. Hamp. 217, E. T. devised all his estate to J. W., and appointed 
 him his executor. In the will was this clause, " I desire that the said J. W. should 
 at his discretion appropriate a part of the income of my estate aforesaid, not ex- 
 ceeding $50 a year, to the support of my widow M. E." It was held that this 
 clause with other expressions rendered the devise to J. W., a trust to the above 
 amount, which a court would enforce. In Collins v. Carlisle, 7 B Monroe, 14, 
 stated ante, 'page 68 in note, the words " to be disposed of and divided among 
 ray children," were held to control the prior devise to his wife, and create a 
 trust for the children. A devise to two executors of the residue of a testator's 
 estate, " with full confidence that they will dispose of such residue among our 
 brothers and sisters and their children, as they shall judge shall be most in need 
 of the same ; this is to be done according to the best of their discretion." creates 
 a trust in favor of the needy brothers, &c., which on the death of the trustees 
 without exercising it, devolves on the court. Bull v. Bull, 8 Conn. 47. In Lucas 
 V. Lockhart, 10 Sm. & M. 466, a husband by his will gave to his wife the entire 
 profit of all his estate during her life, "entrusting to her the education and 
 maintenance of his children," and provided also, for the education and main- 
 tenance of the children " out of the profits" of the estate, and it was held that 
 the wife took the estate, coupled with the trust for the education and support 
 of the children. This doctrine of the creation of trusts by precatory words was 
 a good deal discussed in Virginia in Harrison v. Harrison, 2 Gratt. 1. There a 
 testator had made his will in these words : " In the utmost confidence in my 
 wife, I leave to her all my worldly goods, to sell or keep for distribution amongst 
 our dear children, as she may think proper. My whole estate, real and per- 
 sonal, are left in fee simple to her, only requesting her to make an equal distri- 
 bution amongst our heirs, and desiring her to do for some of my faithful ser- 
 vants, whatever she may think will most conduce to their welfare, without re- 
 gard to the interest of my heirs. Of course I wish, first of all, that all my debts 
 shall be paid." The Court of Appeals, Judge Brooke dissenting, held, 1. That 
 the widow was invested, subject to the payment of the testator's debts, with the 
 legal title to the whole estate, real and personal ; taking the beneficial interest 
 in the estate for her life ; 2. That the children of the marriage had a vested re- 
 mainder in fee in the estate, to commence in possession at the widow's death, 
 or earlier, at her election ; 3. That the widow might inake advancements to the 
 
96 CREATION OF TRUSTS BY PRECATORY WORDS. 
 
 sider his near relations, as he would have done, if he had survived 
 her." Sir A. Hart, V. C, considered those expressions too loose to 
 raise a ti'ust for the testator's next of kin, and decided that the wife 
 took the residue absolutely. (1) And in another case, where a testa- 
 tor made a residuary gift to his brother Arthur, " to enable him to 
 assist such of the children of his brother Francis, as Arthur might 
 find deserving of encouragement." Sir L. Shadwell, V. C, deter- 
 
 (1) Sale V. Moore, 1 Sim. 534. 
 
 children at her discretion, so that they all ultimately received an equal share of 
 the estate ; 4. That she might employ a reasonable portion of the estate for the 
 benefit of the slaves ; 5. And that she had power to sell all or any part of the 
 estate, real or personal, for payment of debts, or more convenient enjoyment, 
 advancement, or division. In Thompson v. McKisick, 3 Humph. 631, a different 
 conclusion was arrived at. There the bequest was of certain negroes to the 
 testator's daughter, " to be hers for ever, to be disposed of as she may think pro- 
 per amongst her children and grandchildren, by will or otherwise," and it was 
 held that she took an absolute estate, and that there was no trust for the chil- 
 dren, &c. The subject of trusts created by precatory words, has recendy been 
 very thoroughly considered in Pennsylvania. In Coates' Appeal, 2 Barr, 129, a 
 testator had by his will given his real and personal estate, to be possessed and 
 enjoyed by his wife for life, or during widowhood, "to be used and applied to 
 the maintenance and support of his childreri, and at her decease or marriage, 
 should either take place before they came of age, then among them equally." 
 By a subsequent will revoking all others, he devised, after payment of his debts, 
 the use, benefits and profits of his real estate to his wife for life ; and also all 
 his personal estate of every description — "absolutely, having full confidence that 
 she will leave the surplus to be divided at her decease justly among her chil- 
 dren." It was held there that the widow was entided to the income for life, 
 merely of the personalty, and was a trustee for the children. The word " sur- 
 plus" was construed to apply only to what should remain after payment of 
 debts. The same will came again before the Supreme Court, in Mekonkey's 
 Appeal, 1 Harris, 253, when a somewhat different view was taken of its con- 
 struction. The widow was held to have taken a life estate in the personalty, 
 with a power in trust for the children, over the principal remaining at her death ; 
 and therefore an appointment by her omitting one or more of the children was 
 void. The word " surplus" was there applied to the property in the hands of 
 the widow. These two decisions were merely interlocutory in the cause. In 
 Mekonkey's Appeal, 1 Am. Law Reg. 306, 7 Harris, however, the case came 
 up for final determination, and after full argument, the former cases were over- 
 ruled, and the words of the will held not to create a trust. Judge Lowrie in 
 a very able and learned opinion, traced the origin of the rule in the earlier English 
 cases to a misapplication of the provisions of the Roman law, in regard to lega- 
 cies founded on different principles, and which he declared never to have been 
 adopted in Pennsylvania. The result at which the Court arrived was that, words 
 in a will expressive of desire, recommendation, and confidence, are not words 
 of technical, but of common parlance, and are not prima facie sufficient to con- 
 vert a devise or bequest into a trust; but that such words might amount to a 
 declaration of trust when it appeared from other parts of the will, that the testa- 
 tor intended not to commit the estate to the devisee or legatee, or the ultimate 
 disposal of it to his kindness, justice or discretion. 
 
[*73] 
 
 CKEATION OF TRUSTS BY PRECATORY WORDS. 97 
 
 mined, that no trust was created in favor of the children of Fran- 
 cis.(l) In Lechmere v. Lavie,(^) a testatrix, having given the bulk 
 of her property to her two eldest daughters, added a codicil, which 
 concluded thus, " If they die single, of course they will leave what 
 they have amongst their brothers and sisters, or their children;" and 
 it was held by Sir J. Leach, M. R., that those words expressed the 
 expectation of the testatrix, but were not intended to create an ob- 
 ligation *upon the two eldest daughters.(^) And in Pope v. 
 Pope,(A) it was determined by Sir L. Shadwell, V. C, that a 
 gift by a testator of the capital of his business to his wife, " trusting 
 that ^he will act justly and properly to and by all our children," 
 was a general expression of a wish, and did not create a trust.(A) 
 The whole of the authorities on this point have been reviewed, and 
 the principle of the cases considered by Lord Langdale, M. R., in 
 his masterly judgment in the recent case of Knight v. Knight. (^■) In 
 that case, after making an absolute gift of real and personal estate, 
 the testator added, " I trust to the justice of my successors, in con- 
 tinuing the estates in the male succession according to the will of 
 the founder of the family;" and Lord Langdale considered that 
 those words were not sufficiently imperative, to create a trust in favor 
 of the male line.(i) 
 
 The effect of expressions of this nature, in creating a trust, de- 
 pends entirely on the supposed intention of the donor, to be gathered 
 from the whole tenor of the instrument; (A) therefore words, which 
 when taken by themselves would clearly create a trust, have frequently 
 been controlled in their operation when they are annexed to expres- 
 sions, purporting to give the absolute enjoyment and disposal of the 
 property, in question to the donee.(^ Thus the words "free and 
 unfettered," accompanying the strongest expressions of request, have 
 been held to prevent the words of request from being imperative, (m) 
 And where a gift in one case was expressed to be " at the sole and 
 entire disposal" of the testator's wife(w) and in another case was 
 made to a testator's son, " his heirs, executors, administrators, and 
 assigns, to and for his and their own use and benefit ;"{o) — those ex- 
 
 ig) Lechmere v. Lavie, 2 M. & K. Wood v. Cox, 2 M. & Cr. 684 ; vid. et. 
 
 197. Bland v. Bland, 9 Mod. 478; S. C. 2 
 
 (fi) Pope V. Pope, 10 Sim. 5. Cox, 349. 
 
 (i) Knight v. Knight, 3 Beav. 148, (ot) Meredith v. Heneage, 1 Sim, 
 
 178 ; [affirmed on appeal, 11 CI. & F. 542, 555 ; Knight v. Knight, 3 Beav. 
 
 513.] 174. 
 
 (&) Meggison v. Moore, 2 Ves. jun. (w) Hoy v. Master, 6 Sim. 568. 
 
 633. (o) Bardswell v. Bardswell, 9 Sim. 
 
 (?) Meredith v. Heneage, 1 Sim. 319. 
 556; Knight v. Knight, 3 Beav. 174; 
 
 (1) Benson v. Whittam, 5 Sim. 22. 
 7 
 
98 CBEATION OP TRUSTS BY PEBCATORT ■WORDS. 
 
 pressions seem to have materially assisted the court in coming to the 
 decision, that the words of recommendation added to the gift were 
 not sufficiently imperative to convert the parties taking into trustees. 
 
 And though the word " trust" be made use of, yet if it be coupled 
 with such expressions as show an intention on the part of the giver 
 not to limit or control the discretion of the donee ; as where a testa- 
 tor "trusts to the liberality or to the justice" of his devisees to do 
 something in favor of certain individuals, no imperative trust will be 
 created. (p) 
 
 The case of Young v. Martin, (5') which has been already stated, is 
 also one of this description. 
 
 The second requisite for creating a trust by means of expressions of 
 this nature is, that the subject of the recommendation or wish he 
 certain.^ — For this purpose the property to which the trust is intended 
 to apply must be clearly described. Therefore in Knight v. Knight,(r) 
 where a testator, being entitled to several estates real and per- 
 sonal, made an absolute *gift of his real and personal estates ; 
 ■- -1 and, after referring to the estates, which he took under his 
 grandfather's will, concluded by " trusting to the justice of his suc- 
 cessors in continuing 'the estate' in the male succession according to 
 the will of his grandfather ;" Lord Langdale, M. E., considered, that 
 the property, which was the subject of the recommendation, was not 
 described with sufficient accuracy, it being uncertain, whether it was 
 it was the testator's intention to include the personal estate, or any- 
 thing besides the estates of his grandfather, to which he had himself 
 succeeded. (?•) And in a later case a testator, after giving everything 
 he died possessed of to his daughter for life, added, " whatever she 
 can transfer" to go to her daughters ; and it was held by the same 
 learned judge, that it was impossible to say what was the subject in- 
 tended by the expressions, "whatever she can transfer," and there- 
 fore, that the gift to the daughters was void for uncertainty, (s) 
 
 However, any description, no matter how untechnical or inartificial, 
 will be sufficient, as long as it points out clearly what is the property 
 
 (p) Knight V. Knight, 3 Beav. 177; (5) 2 Y. & Coll. Ch. 582, 7 Jur. 1147. 
 
 vid. et. Curtis v. Rippon, 5 Mad. 434; (j-) Knight v. Knight, 3 Beav. 179. 
 
 Hoy u. Master, 6 Sim. 568; Wilson v. Affirmed Dom. Proc. 8 Jurist, 923; 11 
 
 Major, 11 Ves. 205. [Huskisson w. CI. & F. 513. 
 
 Briggs, 3Eng. L. & Eq. 181.] (s) Flint ■«. Hughes, 6 Beav. 342. 
 
 ' A testator after bequeathing his wife a portion of his property, added a clause 
 to his will in which he requested that a person to whom he had bequeathed no- 
 thing, might provide for her a chaise or other suitable conveyance, and attend 
 her whenever and wherever she might wish to go, for a suitable compen- 
 sation, if she should desire it. It was held that this was too vague and indefinite 
 a provision to be contained as a legacy to the wife. Whipple v. Adams, 1 Met- 
 calf, 444. 
 
CREATION OF TRUSTS BY PRECATORY WORDS. 99 
 
 to which the trust is intended to apply. — Therefore the subject has 
 been considered to be defined with sufScient accuracy by the descrip- 
 tion of " what fortune he (the first taker) should receive under the 
 testator's will;"(t) or, "what (the first taker) has in her own power 
 to dispose of that was mine ,"{u) or, " the share of my property I have 
 bestowed on her;"(w) so where a testator devised all his lands and 
 hereditaments as well leasehold as freehold and copyhold to his mo- 
 ther and her heirs for ever, in the fullest confidence that she would 
 devise "<Ae property" to his family ; Lord Eldon considered that the 
 subject was described with sufficient certainty, although his lordship 
 seems to have regarded it as doubtful whether the word property 
 would include the timber as well as the soil of the estate.(a;) And the 
 '^residue" of a testator's estate after certain purposes are answered, 
 though a subject to be ascertained, is nevertheless so clearly and cer- 
 tainly ascertainable, that it will amount to a sufficient designation.(2/) 
 
 But any words, by which it is expressed, or from which it may be 
 implied, that the first taker has the power of withdrawing any part of 
 the subject from the object of the wish or request, or of applying it to 
 his own use will prevent the subject of the gift from being considered 
 certain, (a)' 
 
 This principle of construction was established at a very early 
 period, in the case of Attorney General v. Hall, (a) decided in the 
 year 1735. A testator gave the residue of his personal estate to his 
 son Francis, and the heirs of his body ; but in case his son should 
 leave no heirs of his body, then he gave " so much as he should he 
 possessed of at the time of his death" to the corporation of Goldsmiths 
 in trust, for charity : and it was held by Sir J. Jekyll and Lord Chief 
 Baron Reynolds, that the trust for the charity did not take effect on 
 
 (0 Pierson^. Garnet, 2 Bro. C. lC.38. (3/) Knight v. Knight, 3 Beav. 173. 
 
 (u) Cruwys v. Colman, 9 Ves. 39. {z) Knight v Knight, 3 Beav. 174. 
 
 (til) Prevost V. Clarke, 2 Mad. 458. (o) Att.-Gen. v. Hall, [Fitzgibbon, 
 
 Ix) Wright V. Atkins, G. Coop. 115; 3 14,] cited 2 Cox, 355. 
 S. C, T. & R. 157. 
 
 ' Where A. devises all his estate to B. his wife, her executors, &c., but in case 
 of B.'s death, without disposing of it by will, or othervTise assigning or disposing 
 of it, then to his daughter; B. takes an absolute estate in fee. Jackson v. Robbins, 
 15 Johnson, 171 ; ]6 Johns. 586. So on a devise to one, and in case he dies with- 
 out issue, then " the said property he diespossessed of," to T., Jackson v. Bull, 10 
 John. 19 • OT " what estate he shall leave, to he divided, &c.," Ide -y. Ide, 5 Mass. 
 500; the subsequent limitation is void. A bequest to B. of all the personal estate 
 " to and for her own use and benefit, and disposal absolutely. The remainder of said 
 estate after her decease, to be for the use of my son Jesse," gives an absolute in- 
 terest to the wife. Smith v. Bell, Mart. & Yerg. 302. See also Davis v. Richardson, 
 10 Yerg. 290; Thompson ii.McKisick, 3 Hump. 631 ; Zimmerman v. Andrews, 6 
 W. & S. 220. In Mekonkey's appeal, 1 Am. Law. Reg. 360, ante, 72 note, the 
 vrords " leave the surplus to be be divided" were considered as overturning any 
 implication of a trust. 
 
100 CREATION OF TRUSTS BY PBBCATORT WORDS. 
 
 the death of the son without heirs of his body.(a) So in Bland v. 
 Bland,(6) a testatrix gave all her real and personal estate to her son, 
 Sir John Bland, his heirs, executors, administrators and assigns, 
 |.^^ charged with debts and legacies; and ^concluded thus "it is 
 *- J my earnest request to my son. Sir J. Bland, that on failure of 
 issue of his body, he will sometime in his lifetime settle the said pre- 
 mises, or so much thereof as he shall stand seised of at the time of Ms 
 decease, so and in such manner as that on failure of issue of his 
 body, the same may come to my daughter and the heirs of her body." 
 And the Lord Chancellor decided that no trust was created in favor 
 of the daughter and her heirs. (5) 
 
 Upon the same principle where the desire or recommendation 
 expressed by the testator, is that the first taker should " give what 
 should he left at her death" to his children or grandchildren :(e) or 
 that she would " leave the remainder of her property" (after pay- 
 ing certain specified pecuniary legacies) to his nephews who are 
 named :{d) or that if she dies single, " she will leave what she has 
 amongst her brothers and sisters, or their children ;(e) or that 
 " should she not marry again, and have other children, her afi"ection 
 for their daughter would induce her to make their daughter her prin- 
 cipal heir ;"{^f) or that "should she marry again, she might convey 
 ' what property she might then possess' to trustees, for the benefit of 
 her children ;"{g) in none of these cases would the court decree the 
 execution of the trust. 
 
 On the same ground, where a testator gave all his real and per- 
 sonal estates to his wife, her heirs, executors and administrators, 
 " trusting that she would, in fear of God and in love to the children 
 committed to her care, make such use of it as should be for her own 
 and their spiritual and temporal good, remembering always, accord- 
 ing to circumstances, the church of God and the poor;" the Vice- 
 Chancellor held the wife absolutely entitled to the property, there 
 being no ascertained part of it provided for the children, and she 
 being at liberty, at her pleasure, to diminish the capital either for 
 the church or for the poor. (A) 
 
 The refusal of the courts to establish a trust upon a wish expressed 
 
 (a) Att.-Gen. v. Hall, [Fitzgibbon, Kingston, 1 Mer. 314; Tibbitts i). Tib- 
 
 314,] .cited 2 Cox, 355. bitts, 19 Ves. 664. 
 
 (6) Bland v. Bland, 2 Cox, 349; vide (d) Eade v. Eade, 5 Mad. 118. 
 
 et. La Maitre v. Bannister, Free. Chan. (e) Lechmere v. Lavie, 2 M. & K, 
 
 201, n.; Strange D. Barnard, 2 Bro. C. 197. 
 
 C. 586.. (/) Hoy v. Master, 6 Sim. 568. 
 
 (c) Wyne v. Hawkins, 1 Bro. C. C. {g) Pope «. Pope, 10 Sim. l;vide et. 
 
 179; Pushman v. Philliter, 8 Ves. 7; Horwcod ?). West, 1 S. &S. 387. 
 
 Wilson V. Major, 11 Ves. 205; Bull v. (ft) Curtis v. Rippon, 5 Mad. 434. 
 
CREATION OF TRUSTS BY PRECATORY WORDS. 101 
 
 by a testator, that the first taker should "remember," "consider," 
 or "act justly and properly by," any particular objects, and other . 
 expressions of that nature, would seem to be also in part attributable 
 to the rule now under consideration ; inasmuch as such expressions 
 rarely designate with any accuracy the part of the property which 
 is to be subject to the trust.(i) 
 
 3d. — With regard to the certainty requisite in describing the 
 objects or persons to take under trusts of this nature ; it is by no 
 means indispensable that they should be mentioned by name. A 
 more general description, — as by referring to them as a class, — will 
 be sufficient, if the context clearly and definitely fixes the persons 
 who are to take.' 
 
 Thus a trust will be established upon words of recommendation, 
 &c. in favor of the " sons," " children," or " grandchildren," either 
 of the *testator himself, or of other persons mentioned in the r^nf'-i 
 will:(A;) and where the designation has been the "rela- ^ 
 
 tions,"(Z) or the " descendants, "(m) or "female descendants,"(n) of an 
 individual ; that has been considered sufficiently certain, whether the 
 subject were real or personal estate. 
 
 With regard to the term "family," the decisions appear to be 
 somewhat at variance with each other.^ In Harland v. Trigg,(o) 
 
 (i) Curtis V. Rippon, 5 Mad. 434; Birch u. Wade, 3 V. & B. 198; Forbes 
 
 Sale V. Moore, 1 Sim. 534; Pope v. v. Ball, 3 Mer. 437; Wright v. Atkins, 
 
 Pope, 10 Sim. 1; Le Maitre v. Bannis- 2 T. & R. 161. [See Bishop i). Cappel, 
 
 ter, Preo. Chan. 201, n.; Bardswell v. 11 Jur. 937; S. C. 1 De G. & Sm. 411 ; 
 
 Bardswell, 9 Sim. 319. Davidson v. Proctor, 14 Jur. 31 ; Ham's 
 
 (Jc) Mason v. Lirabury, cited Ambl. Will, 15 Jur. 1121. 
 
 4; Massey v. Shearman, Ambl. 520; (m) Pierson v. Garnet, 2 Bro. C. C. 
 
 Malim v. Kneightley, 2 Ves. jun. 333; 38, 226. 
 
 Prevost V. Clarke, 2 Mad. 458; Fordt). (n) Parsons v. Baker, 18 Ves. 476. 
 
 Fowler, 3 Beav. 146. (o) Harland t). Trigg, 1 Bro. CO. 142. 
 
 (I) Harding v. Glyn, 1 Atk. 469; 
 
 ' See Harrison v. HarrisoUj stated ante. 72 note. Though a vagueness in the ob- 
 jects will furnish reason for holding that no trust was intended, yet this may be 
 countervailed by other considerations, which show that a trust was purposed ; 
 while at the same time, such trust is not sufRciently certain or definite to be 
 carried out. Thus where a testatrix by her will, after giving, among other lega- 
 cies, a sum of £3000 to S. P., and a like sum of £3000 for the trouble she would 
 have in acting as executrix, bequeathed her residuary estate to the said S. P., 
 " Well knowing that she will make a good use of it, and dispose of it in accord- 
 ance with, my views and wishes," and appointed S. P. executrix, and four codi- 
 cils were found, but imperfectly attested : it was held by Lord Chancellor Cot- 
 lenham, affirming, S. C, 12 Jur. 905, that S. P. did not take the residue for 
 her own benefit, but that the words of the bequest created a trust. Briggs v. 
 Penny, 3 Mac. & G. 506. 
 
 ^ A testator devised the " balance" " of his estate" to be given to the families 
 of A. and B.'s children : held that the children of A. & B. took per stirpes and not 
 per capita. Walker v. Griffith, 11 Wheat. 375. A devise "for the support of 
 
102 CREATION OF TRUSTS BY PRECATORY WORDS, 
 
 the testator's brother was entitled to a freehold estate under hig 
 father's will, as tenant for life in remainder after the death of his 
 brother, with remainder to his children in strict settlement. The 
 testator, being possessed of some leasehold estates for lives, and also 
 some for terms of years, devised the leasehold for lives to the trus- 
 tees of his father's will, to the same uses as the estate limited to them 
 by the will; "and all other his leasehold estates in Sutton he gave 
 to his brother for ever, hoping he would continue them in the family ;" 
 Lord Thurlow decided, that those words created no trust of the 
 leasehold property at Sutton, as they did not clearly demonstrate an 
 object, (o) 
 
 In Barnes v. Patch, (p) a testator in certain events gave the 
 remainder of his estate to be equally divided between his brother's and 
 sister s families. And it was held by Sir William Grant, M. R., that 
 the ehildren of the brother and the sister were entitled equally jier 
 capita, to the exclusion of their parents, both to the real and personal 
 estate, (p) 
 
 In Cruwys v. Colman,(g') the expressions were "I make my only 
 sister, (Bridget Cruwys,) whole and sole executrix to everything I 
 have, for her own life. And it is my absolute desire, that she 
 bequeaths at her own death to those of her oivn family, what she has 
 in her own power to dispose of, that was mine, provided they behave 
 well to her with decency and affection." The sister died, having 
 declared by her will, that she meant to make no disposition of the 
 testatrix's property ; and Sir William Grant, M. E.., held, that there 
 was a trust for the next of kin'oi the testatrix. (g) 
 
 The next case is the much litigated one of Wright v. Atkins, (r) 
 In that case Wright Edward Atkins by his will gave, devised and 
 bequeathed all his lands and hereditaments whatsoever and where- 
 soever, as well leasehold as freehold and copyhold, to his mother 
 Charlotte Atkins and her heirs for ever, " in the fullest confidence, 
 
 (p) Barnes v. Patch, 8 Ves. 604. (r) Wright v. Atkins, 17 Ves. 255; 
 
 (g) Cruwys v. Colraan, 9 Ves. 319. S. C. 19 Ves, 299; and Coop. 111. 
 
 the family" of the testator, is a devise for the support of the widow, and the 
 maintenance and education of the children. Addison v. Bowie, 2 Bland, 606. 
 Where, however, a testator devised his estate to his seven soos, with a request, 
 that they should take care of their brother J. T. and his family, it was held, on a 
 bill filed by J. T. and his children, that the term family was not sufficiently cer- 
 tain, but that the devise toJ.T. was good, and constituted, when the amount was 
 ascertained, a charge on the land. TolsOn v. Tolson, 10 G. & J. 159. In Johns- 
 ton V. Rowlands, 2 De G. & Sm. 356; 12 Jur. 769, there was a gift o,f a legacy 
 to the testator's wife, " to be disposed of by her will in such a way as she shall 
 think proper; but I recommend her to dispose of one-half thereof to her own 
 relations, and the: other half to such of my relations as she shall think proper," 
 and it was held riot to create a trust. 
 
CREATION OP TRUSTS BY PRECATORY WORDS. 103 
 
 that after her decease she would devise the property to his family" 
 and he gave and bequeathed to his said mother all his goods, chattels 
 and personal estate for her own benefit. The first suit of Wright v. 
 Atkins(r) was instituted by the testator's uncle and heir-at-law, John 
 Atkins Wright, who had become entitled by representation to two 
 incumbrances charged on the devised estates, for the purpose of 
 having those incumbi-ances discharged : and in that suit, the question 
 arose whether Charlotte Atkins was bound to keep down the interest 
 of the incumbrances ; it therefore became incidentally *neces- r*Y71 
 sary to determine, whether she was tenant for life, or in fee 
 of the estates devised to her. At the original hearing, Sir William 
 Grant, M. R., was of opinion that the words in question were suffi- 
 cient to create a trust, and decreed that Charlotte Atkins was only 
 tenant for life of the devised estates.(s) In consequence of Sir Wil- 
 liam Grant's decision, an injunction was afterwards granted by the 
 Lord Chancellor (Lord Eldon,) to restrain Charlotte Atkins from 
 cutting timber on the estates :(<) and his lordship subsequently 
 affirmed the decree made by Sir William Grant at the .original hear- 
 ing, when the case was brought before him on appeal, (m) An appeal 
 was then presented to the House of Lords, by whom the previous deci- 
 sions were reversed, so far as they declared, that Charlotte Atkins was 
 only tenant for life.(a;) The case came finally before the court again 
 on an application for a fresh injunction to restrain Mrs. Atkins from 
 cutting timber, when Lord Eldon, after observing, that upon recon- 
 sideration he was perfectly satisfied that there was no ground for 
 saying, that Mrs. Atkins was only tenant for life, refused to grant 
 the injunction against her, and ordered that she should be at liberty 
 to cut the timber in a husband-like manner, as tenant in fee, upon 
 giving security for the value, or bringing the value into court.(^) In 
 Grant v. Lynam,(z) there was a bequest of personal estate to the 
 testator's wife for life, with a direction for her to bequeath the same 
 to any one or more of the testator's own family she might think 
 proper. It was decided by Sir J. Leach, M. R., that the donee had 
 a power to select any object of bounty amongst the testator's rela- 
 tions or family, though not the next of kin. But if the donee did 
 not exercise that power, then the word "family" was to be construed 
 "next of kin;"(3) and in the late case of Griffiths v. Evan,(a) the 
 term " my nearest family," was held to create a trust for the heir, 
 the subject of the devise being real estate.(a) 
 
 (r) Wright v. Atkins, 17 Ves. 255; (x) T. & R. 145. 
 
 S. C. 19 Ves. 299; and Coop. 111. ly) T. & R. U3. 
 
 («) 17 Ves. 255. (s) Grant v. Lynam, 4 Russ. 292. 
 
 It) 1 V. & B. 313. (o) Griffiths v. Evan, 5 Beav. 241. 
 (u) 19 Ves. 299. 
 
104 CEEATION OF TRUSTS BY PKECATOKY WORDS. 
 
 In the recent case of Liley v. Hey,(5) Sir J. Wigram, V. C, 
 supported the validity of a devise of real estate for the benefit of 
 certain "families," although it was objected, that the description 
 was too uncertain to be enforced. (5) 
 
 So in Woods v. Woods,(c) it was held by Lord Cottenham, that 
 a gift to a wife for the support of ^'■'herself and family" was a good 
 bequest in favor of the children, whom his lordship decided to be 
 entitled under that description. (c) And in a still later case, a gift 
 of 6,000Z. to the family of S. W., was held by Sir J. Wigram, V. C, 
 to entitle his six children as joint-tenants. (c?) 
 
 Upon examination of these several authorities therefore, it seems 
 to be clear, that a direct gift to or for the benefit of a "family" or 
 "families," is a sufficient description of the objects; and according 
 to the circumstances of the property the next of kin, or the children, 
 will be held to take.(e)' 
 
 And it is also equally clear, that if there be a gift to a person 
 P^YQ-i expressly *for life, followed by words creating a trust in 
 remainder to "his family," without giving any power of 
 selection to the first taker, that would be a sufficiently certain de- 
 scription, whether the devised property consisted of real or personal 
 estate, or of both united. (/) But ^where property is devised to an 
 individual in the first place absolutely, and words are added to the 
 gift, importing a trust, or power in the nature of a trust, for the 
 devisee, to devise the property at his death to or among the testa- 
 tor's "family ;" the court will not in a suit, instituted bythe heir-at- 
 law in the lifetime of the first taker, decide, whether the expressions 
 of trust do or not operate to cut down the prima facie absolute in- 
 terest, given by will, to an estate for life; but will leave that ques- 
 tion to be disposed of, when it arises at the death of the devisee : 
 and this appears to be all that was decided by the House of Lords 
 on reversing the previous decisions in Wright v. Atkins, and by 
 Lord Eldon, when the second suit of that name came before him.(A) 
 And it was expressly decided in Grant v. Lynam, that where the first 
 
 (6) Liley ^. Hey, 1 Hare, 580. (/) Wright v. Atkins, Coop. 117, 
 
 (c) Woods V. Woods, 1 M. & Cr. 408. 122; and T. & R. 156: Cruwys v. Col- 
 
 (d) Wood V. Wood, 3 Hare, 65. man, 9 Ves. 319. 
 
 (e) Barnes v. Patch, 8 Ves. 604; (A) Wright t). Atkins, T. & R. 143, 
 Woods V. Woods, 1 M. & Cr. 408; sect. 154. 
 
 Liley v. Hey, 1 Hare, 580. [See White 
 V. Biiggs, 2 Phillips, 583.] 
 
 ' A bequest to the family of G. was held not to be void for uncertainty, but 
 construed to be a gift to the children of G. (an uncle of the testator, known 
 to live on terms of intimacy with him) as joint tenants, and not to include the 
 parents or their grandchildren. Gregory v. Smith, 9 Hare, 708. 
 
CBBATION OF TRUSTS BY PRECATORY WORDS. 105 
 
 taker, to whom a power of selection was given, died without ex- 
 ercising that power, the term "family" was a sufficiently certain 
 description of the objects to take, and that the trust would be, sup- 
 ported accordingly, (i) 
 
 Harland v. Trigg, owing to its peculiar circumstances, cannot be 
 considered an authority upon the general principle. In that case 
 the parties, entitled to the freeholds in remainder under the father's 
 will, endeavored to establish their claim to take the leaseholds be- 
 queathed by the testator as answering to the designation of his 
 "family ;" and it has been observed by Lord Eldon, that "it was 
 impossible that the words 'my family ' in that case could mean an 
 heir-at-law."(A) 
 
 The case of Cruwys v. Colman is a direct authority for consider- 
 ing the term "family" a sufficient description of the objects, where 
 the subject is personal estate : and although it was determined by 
 the House of Lords, that the decision of Sir Wm. Grant, as affirmed 
 by Lord Eldon in the first suit of Wright v. Atkins,(Z) was pre- 
 mature, yet those decisions would doubtless have considerable weight, 
 if the same point should again be brought before the court at the 
 proper time. However it must be observed, that throughout Lord 
 Eldon's judgment in the second case of Wright v. Atkins,(jM) the 
 tendency of his opinion appears to be strongly against holding the 
 expressions, which were the subject of dispute in that case, to be a 
 sufficiently certain description of the objects of the trust. 
 
 It has been remarked by Sir William Grant that "the word 
 'family' may according to the context have different significations 
 in different wills ;"(n) and the effect and construction of the term 
 must depend mainly on the context, and the circumstances, in con- 
 nexion with which it is usual.(o) These will of course vary with 
 
 [*79] 
 
 every case, rendering it ^impossible to lay down any more 
 definite rules of construction on this point. 
 
 Where the designated objects of a trust of this nature are a spe- 
 cified class of persons, the certainty of the description will not be 
 affected by the fact of a power of selection being given to the de- 
 visee. The whole class will take a vested interest, subject to be de- 
 vested by the exercise of the power, and if it be not exercised, the 
 whole class will be equally entitled.(^) Where the objects are desig- 
 
 (t) Grant •«. Lynara, 4Russ. 292; and (o) Wright v. Atkins, T. & R. 158 ; 
 
 see Griffiths v. Evan, 5 Beav. 241. Woods v. Woods, 1 M.'& Cr. 408. 
 
 (k) Coop. 121. Q,) Harding v. Glyn, 1 Atk. 469; 
 
 (0 17 Ves. 255; and 19 Ves. 299. Brown v. Higgs, 4 Ves. 708; 5 Ves. 
 
 (m) T. & R. 143. 495; and 8 Ves. 570; Cruwys v. Col- 
 
 (n) In Cruwys v. Cobnan, 9 Ves. man, 9 Ves. 319; Birch v. Wade, 3 V. 
 
 323. See Woods v. Woods, 1 M. & Cr. & B. 198. 
 408. 
 
106 CREATXON OF TRUSTS BY PRECATORY "WORDS. 
 
 nated as " relations," the power would be well exercised in favor of 
 any relation, although not one of the next of kin.(2') But in default 
 of exercise of the power, the next of kin, according to the Statute 
 of Distributions, only would be entitled.(r) And in like manner 
 where " family " is the term of description, it seems that the power 
 might be exercised in favor of any one who comes within the ordi- 
 nary acceptation of that term ; although the heir-at law only would 
 take in default of its exercise, if the property were real estate :(s) 
 and the next of kin, if it were personal estate.(i) 
 
 So the objects will be sufficiently certain, though the trust be in 
 favor of several persons, or classes of persons ;(u) or even alterna- 
 tively in favor of one person, or class, "or" another ; which latter 
 case has been held, only to confer a power of selection between the 
 two classes. (a;) And in such cases all the objects designated would 
 take equally, if the power were not exercised.(«/) 
 
 Where an imperative trust is created by precatory words in favor 
 of "charity," or " charitable purposes," the court will give effect to 
 it, although the particular objects to take may not be specified, or 
 are left entirely at the discretion of the trustee. (2) And it seems, 
 that where such a trust applies to a r endue, or the corpus of a fund, 
 the court on application will at once assume the administration of the 
 trust, and will direct a reference to the master to approve of a 
 scheme for that purpose. (a) But where the subject-matter is an 
 annual, or temporary income to be disposed of from year to year, 
 and an unlimited discretion is left to the trustee with regard to the 
 selection of the objects and the distribution of the fund, the court 
 will not in the lifetime of the trustee interfere with that discretion, 
 by directing a scheme, but will leave any claimant liberty to apply 
 to the court as there may be occasion. (6)^ 
 
 (5) Harding v. Glyn, 1 Alk. 469; (3/) Brown v. Higgs, 4 Ves. 708. 
 
 Forbes v. Ball, 3 Mer. 437; seeT. &R. [Penny v. Turner, 2 Phill. 693.] 
 162. (z) MT)ggridge v. Thackwell, 7 Ves. 
 
 (r) Harding 1). Glyn, ubi sup. ; Birch 36; Waldo v. Caley, 16 Ves. 206; 
 
 V. Wade, 3 V. & B. 198. Legge v. Asgill, T. & R. 265, n. ; Horde 
 
 («) Wright 1;. Atkins, T. & R. 156, v. Earl of Suffolk, 2 M. & K. 59; Ba- 
 
 159; Griffiths ?J. Evans, 5Beav. 241. ker v. Sutton, 1 Keen, 224; Townsend 
 
 (i) Grant v. Lynam, 4 Russ. 492 ; v. Carus, 13 Law Journ. N. S., Chanc. 
 
 Cruwys v. Colman, ubi sup.; Woods v. 169. [Atty.-Gen. ■u.Lawes, 8 Hare, 32; 
 
 Woods, 1 M. &. Cr. 408. 14 Jur. 77 ; see Wheeler v. Smith, 9 
 
 (tt) Mason v. Limbury, cited Ambl. 4. How. U. S. 53.] 
 
 (a:) Longrnore u. Broom, 7 Ves. 124; (a) Moggridge v. Thackwell, 7 Ves. 
 
 Prevost V. Clarke, 2 Mad. 458 ; Jones 36. 
 
 V. Torin, 6 Sim. 255. (6) Waldo v. Caley, 16 Ves. 206 
 
 Horde v. Earl of Sufiblk, 2 M. & K. 59. 
 
 ' In some of the United States, where the Statute of 43 Elizabeth is not in force, 
 it has been held that the power to enforce charities was in the Court of Chan- 
 cery at common law, independently of that statute ; and that charities within 
 
CREATION OF TRUSTS BY PRECATORY WORDS. 107 
 
 In Moggridge v. ThackTiTell,(c) a testator gave the residue of his 
 personal estate to James Vaston, his ■ executors and administrators, 
 " desiring him to dispose of the same in such charities, as he should 
 think fit, *recommending poor clergymen who have large r^oQ-i 
 families and good characters." The suit was instituted after 
 the death of the trustee ; and Lord Thurlow decreed, that the residue 
 ought to be applied in charity, regard being had to poor clergymen 
 with good characters and large families, according to the recom- 
 mendation in the will, and he referred it to the master to settle a 
 scheme for the purpose.(c) In consequence of an intimation by 
 Lord Rosslyn, when this cause came before him on further directions, 
 it was subsequently re-heard before Lord Eldon, who affirmed Lord 
 Thurlow's decree, after a most elaborate argument.(c?) 
 
 In Waldo v. Cayley,(e) there was a trust to pay the income of 
 testator's residuary personal estate to his wife for life ; and the will 
 then proceeded as follows, "but nevertheless I do hereby most 
 solemnly enjoin, and earnestly desire, and I am thoroughly per- 
 suaded from the invariable fidelity and attachment my dear wife has 
 always shown me, that she will after my decease, with the utmost 
 readiness and cheerfulness, co-operate with" my said trustees in 
 
 (c) Moggridge v. Thackwell, 3 Bro. (d) Moggridge v. Thackwell. 7 Ves. 36. 
 C. C. 517; S. C. 1 Ves. jun. 464. (e) Waldo v. Caley, 16 Ves. 206. 
 
 its definition would be enforced, though the beneficiaries were too vaguely de- 
 signated to claim for them^lves that assistance. It is sufficient if a discretion in 
 the application of the funds is vested anywhere. Vidal v. Girard, 2 How. S. C. 
 127; Hadley v. Hopkins's Academy, 14 Pick. 240; Going u. Emery, 16 Pick. 
 107; Brown v. Kelsey, 2 Gush. 243; Burr v. Smith, 7 Verm. 241; Wright u 
 Trustees, 1 Hoff. Ch. 202 ; King v. WoodhuU, 3 Edw. Ch. 79 ; Kniskern v- 
 Lutheran Church, 1 Sandf. Ch. 439; Bank v. Phelan, 4 Barb. S. C. 80; Shot- 
 well V. Mott, 2 Sandf Ch. 46 ; Newcomb v. St. Peter's Church, Id. 636 ; (but see 
 contra in N. Y., Andrews v. Bib. Soc. 4 Sandf S. C. 156 ; Chittenden, v. Chittenden, 
 1 Am. L. Reg. 538) ; Witman v. Lex, 17 S. & R. 88 ; Zanes's will, Brightly, 350 ; 
 Pickering v. Shotwell, 10 Barr. 23 ; Griffiths v. Cope, 17 Penn. St. 96 ; MoCord v. 
 Ochiltree, 8 Blackf. 115; States. McGiven, 2 Ired. Ch. 9; Griffin v. Graham, 1 
 Hawks. 90; Atty.-Gen, v. Jolly, 1 Rich. 99; Beall v. Fox, 4 Geo. 404; Wadeu. 
 American Col. Soc, 7 S. &; M. 603; Dickson v. Montgomery, 1 Swann (Tenn.), 
 340. In other states tliat statute has been declared to be still in force. Griffin v. 
 Graham, 1 Hawks. 96; Gass i^.Withill, 2 Dana, 170 ; Atty.-Gen. v. Wallace, 7 B. 
 Monr. 611. But the English doctrine of cy pres is inapplicable to the circum- 
 stances of the country, and has not been adopted. McAuley v. Wilson, 1 Dev. 
 Eq. 276 ; Witman i). Lex, 17 S. & R. 88 ; Atty.-Gen. u. Jolly, 2 Strob. Eq. 379 ; Dick- 
 son V. Montgomery, 1 SwauD, 348. In Virginia and Maryland, however, it has 
 been decided that neither the statute nor the principles which it embodies, are 
 in force. Baptist Association v. Hart, 4 Wheat. 1 ; Wheeler v. Smith, 9 How. 
 U. S. 58 ; Gallego v. Atty.-Gen., 3 Leigh 451 ; Dashiell v. Atty.-Gen., 5 H. & J. 
 392 ; 6 H. & J. 1. A very exhaustive discussion of the subject of charitable uses 
 will be found in Magill v. Brown (Zanes's will,) Brightly, N. P. 350. 
 
108 CREATION OF TRUSTS BY PBECATORT WORDS. 
 
 carrying my wishes into execution ; and therefore having made a 
 very considerable provision for my said dear wife by this my will, 
 I do direct and desire that she will, with the advice and assistance 
 of my said trustees or the survivor of them, yearly and every year 
 during her life lay out and expend one moiety of the net income of 
 my personal estate in promoting charitable purposes, as well those 
 of a public as of a private nature, and more especially in relieving 
 such distressed persons, either the widows or children of poor cler- 
 gymen, or otherwise, as my said wife shall judge most worthy and 
 deserving objects; giving a preference always to poor relations." 
 It was held by Sir Wm. Grant, M. R., and his decision was aflSrmed 
 on appeal by Lord Eldon, that there was a trust of one moiety of 
 the residue for charity, with a preference, but not confined to poor 
 relations of the testator : the distribution to be at the discretion of 
 the wife, with the advice but not subject to the control of the 
 trustees, (e) 
 
 This decision has been followed by the recent case of Horde v. 
 Earl of Suffolk,(/) where annual sums were bequeathed to persons, 
 with a desire by the testatrix, that " the sums should be given away 
 by the legatees in charity, either to individual persons, or public 
 institutions, in such sums, way and manner, as, according to their 
 own discretion and judgment, they should think fit, without the 
 interference or control of any person whatever :" Sir J. Leach, M. 
 R., decided, that there Was a valid trust of the legacies for charity, 
 but that the distribution was at the discretion of the legatees, and he 
 therefore refused to direct any scheme, leaving to any party liberty 
 to apply. (/) In the late case of Baker v. Sutton,(^) a bequest of a 
 residue " for such religious and charitable purposes, as in the opinion 
 of the trustees should be deemed fit and proper ;" was held by Lord 
 Langdale, M. R., to create a valid trust for charitable purposes -.{h) 
 and in the still more recent case of Townsend v. Carus,(i) a trust 
 by will to dispose of the residue "for the benefit of such societies, 
 subscriptions for purposes (having a regard to the glory of God 
 r*8n ^^^ *^® *spiritual welfare of his creatures), as the trustees 
 should in their discretion see fit," was supported as a binding 
 trust in favor of charity. 
 
 Where the expressions used are such as to create a trust for 
 "charity" or "charitable purposes" at all events, and the discre- 
 tionary' powers given to the trustee, however amply they may be 
 worded, apply only to the selection of the objects or the distribution 
 of the fund, the validity of the trust will not be affected by the 
 
 (c) Waldo V. Caley, 16 Ves. 206. (A) Baker v. Sutton, 1 Keen, 224. 
 
 (/) Horde v. Earl of Suffolk, M. & (j) Townsend v. Cams, 13 Law 
 K. 59. Journ. N. S. Chanc. 169. 
 
CREATION OP TRUSTS BY PBECATOKT WORDS. 109 
 
 existence of those powers ; and the case of Horde v. Earl of Suffolk 
 is a remarkable illustration of this rule: but if the will be so 
 worded as to render it doubtful whether it is not left entirely at the 
 discretion of the legatee to apply or not to apply the subject of the 
 bequest to any charitable purpose at all ; such a direction cannot be 
 enforced by the court in favor of any charity. (Jfc) However, in 
 such cases, if the expressions are such as clearly show it to have 
 been the intention of the testator that the legatee should not take 
 beneficially, a resulting trust will be decreed for the next of kin. 
 
 It will be observed that in both the cases of Waldo v. Caley, and 
 Horde v. Earl of Suffolk the trust for charity was established, al- 
 though expressed to be in favor such as were of a private as well 
 as of a public nature ; and although in the latter case it was urged 
 upon Sir J. Leach's attention, that the court would not interfere in 
 cases of private charity, his Honor does not appear to have attached 
 any importance to that objection. However it had been previously 
 decided by Sir Thos. Plumer, M. R., that a trust for "private 
 charity" was too indefinite to be carried into execution by the 
 court.(Z) And this decision has since been recognised, and acted 
 upon in more recent cases.(OT) "In what respect," says Sir Thos. 
 Plumer, in his judgment in Ommaney v. Butcher, " does private 
 charity differ from benevolence ? Assisting individuals in distress 
 is private charity, but how can such a charity be executed by the 
 court or by the crown ! Private charity is in its nature indefinite ; 
 — how can it be controlled? — how can it be carried into execution ?" 
 
 In some cases, although the words may be sufficiently imperative, 
 and the subject and the objects sufficiently certain, the trust may 
 notwithstanding fail, on the ground that the interest which the 
 objects are to take, is not clearly defined; as where the general 
 expressions and context of the will show an intention on the part of 
 the testator, that the designated objects should not be absolutely 
 entitled, but do not limit the precise interest which they are to take. 
 In cases of express executory trusts, the court will do its utmost to 
 carry out the supposed intention of the parties, and for that purpose 
 will direct such a settlement of the property to be executed, as it 
 conceives will best meet the wishes of the person creating the trust ;(n) 
 
 {k) Coxe V. Basset, 3 Ves. 155, 164 ; Q) Ommaney v. Butcher, T. & R. 273. , 
 
 Morice V. Bishop of Durham, 9 Ves. (m) Ellis v. Selby, 1 M. & Cr. 293 ; 
 
 399; 10 Ves. 522; Williams i;. Kershaw, Nash v. Morley, 5 Beav. 177. 
 
 5 Law Journ. N. S. 84; Ellis v. Selby, (n) Jervoisew. Duke of Northumber- 
 
 1 M. & Cr. 286; Ommaney u. Butcher, land, 1 J. & W. 570; Woolmore v. 
 
 T. & R. 270; Kendall v. Granger, 5 Burrows, 1 Sim. 512; Ld. Dorchester 
 
 Beav. 300; [Flint v. Warren, 15 Sim. v. Effingham, 3 Beav. 180, n. 
 626 ;] vide post, Div. II., Ch. I., Sect. 3. 
 
110 CREATION OF TRUSTS BY PRECATORY WORDS. 
 
 but there does not appear to be any decided case in which this juris- 
 diction has been exercised upon mere precatory expressions. 
 
 Thus in Meggison v. Moore a testator by his will devised all his 
 real estate to his sister for life, with remainder to her children, as 
 r^Qo-i she should *appoint, and m case of no appointment to her 
 children and their heirs as tenants in common. The sister 
 had two daughters : and the testator by a codicil to his will, after 
 giving an annuity to one of those daughters, directed the residue of 
 his personal estate to be invested in land, and '■^recommended" his 
 sister to settle and convey all his estates and property, which she 
 might derive from him after his decease, to the use of her two 
 daughters for life, in such parts, &c., as she should approve, with 
 remainder to their respective issue ; and in default of issue of either 
 of them, with cross remainders to the issue of the other, with the 
 usual clauses in strict settlement. The testator's sister died in his 
 lifetime, and her two daughters with his co-heiresses-at-law. And 
 it was held by the Lord Chancellor, that they were entitled jointly 
 in fee to all the real estates, including those directed to be purchased 
 by the codicil, thereby negativing the existence of any trust.(o) 
 
 So where a testator devised his estate to his daughter, and then 
 added " I strongly recommend her to execute a settlement of the 
 said estate, and thereby to vest the same in trustees, &;c., for the use 
 and benefit of herself for life, with remainder to her husband and his 
 assigns for life, with remainder to all and every the children she may 
 happen to have, if more than one, share and share alike, and if but 
 one, the whole to such one, or to such other uses as my said daughter 
 shall think proper ; to the intent that the said estate in the event of 
 her marriage, shall be effectually protected and secured." Lord 
 Abinger, Lord Chief Baron, held, that the daughter took an absolute 
 estate free from any trust.(p) 
 
 And in Knight v. Knight, where the testator trusted to the justice 
 of his successors in continuing the devised estates in male succession, 
 according to the will of the founder of the family, (his above-named 
 grandfather,) Lord Langdale, M. R., was of opinion that the objects 
 and the order in which the testator wished them to take, were indi- 
 cated with sufficient certainty ; but his lordship considered, that there 
 was not sufficient clearness to make it certain, what were the interests 
 to be enjoyed by the objects, and on that ground amongst others re- 
 fused to decree the execution of any trust.(2') 
 
 (o) Meggison v. Moore, 2 Ves. jun. (g) Knight v. Knight, 3 Beav. 179. 
 630. Affirmed Dam. Proc. 8 Jurist, 923, 11 
 
 (p) Ex parte Payne, 2 Y. & C. 636. CI. &F. 513. 
 
CREATION OF TRUSTS BY VOLUNTARY DISPOSITION. Ill 
 
 v.— OF THE EFFECT OF A VOLUNTARY DISPOSITION IN TRUST. 
 
 Where there is a conveyance or assignment of the legal interest in 
 property either real or personal to trustees, accompanied by a clear 
 declaration of the trust ; it is immaterial that the transaction is a 
 purely voluntary one. The title of the trustees under such an instru- 
 ment is complete and irrevocable, and will prevail against the person 
 creating the trust, and all subsequent volunteers claiming under him 
 by devise or otherwise.(ry(l) * And if the settlement be of [-^q„-| 
 personal estate, the title of the parties undertaking it will be ^ J 
 
 (r) Bolton v. Bolton, 3 Sw. 414, n. ; nett, 3 M. & K. 36. [Simmonds v. Pal- 
 Sear d. Ashwell, ib. 411, n.; Jefferys 1). les, 2 J. & Lat. 489; Smith i). Hurst, 
 Jefferys, 1 Cr. & Ph. 138; Smith v. 17 Jur. 30.] 
 Lyne, 2 N. C. C. 345 ; Fortescue v. Bar- 
 
 (1) An important exception to this general rule has been established by the au- 
 thorities with regard to trust deeds for creditors. For if a debtor voluntarily con- 
 vey property to trustees upon trusts for the benefit of his creditors ; and the trans- 
 action is not communicated to the creditors, and they do not execute the deed, 
 and are not in any manner privy to it, the deed will merely operate as a power to 
 the trustees, which is revocable by the debtor; and the creditors, even though 
 they be named in the schedule to the deed, cannot enforce the performance of 
 the trust either against the maker of the deed, or the trustees. Walwyn v. 
 Coults, 3 Mer. 707; S. C. 3 Sim. 14; Page v. Broom, 4Euss. 6; Garrard v. Ld. 
 Lauderdale, 3 Sim. 1 : Acton v. Woodgate, 2 M. &.K. 492. It seems however to 
 have been considered by Sir John Leach, in Acton v. Woodgate, in opposition to 
 the opinion of Sir L. Shadwell, V. C, in Gerard v. Ld. Lauderdale, that if the trust 
 
 ' Hardin u. Baird, 6 Litt. 340; Bunn sj. Winthrop, 1 J. C. R. 329; Hayes ^'. 
 Kershaw, 1 Sandf. Ch. 261; Story Eq. § 433, 987 ; Fogg v. Middleton, Riley's 
 Ch. 193; Greenfield's estate, 2 Harris, (Penna.) 489; Kirkpatrick ii. McDonald, 1 
 Jones, 387; Graham v. Lambert, 5 Humph. 595; Henson v. Kinard, 3 Strob. Eq. 
 391; Dupre U.Thompson, 4 Barb. Rep. 180; Dennison v. Goehring, 7 Barr. 175. 
 See article in 16 Jur^ p. 2, 266. But a deed of settlement by which the settlor is 
 delivered, bound hand and foot as to the property settled, into the power of his 
 trustee, cannot be maintained in equity without the clearest proof that it was 
 made at and with the request, consent, knowledge, or instance of the settlor; 
 and a solicitor who takes upon himself to prepare such a deed for execution by 
 his client, without the concurrence of the latter, does so subject to all the conse- 
 quent liabilities of the deed being set aside, notwithstanding the solicitor may 
 have been influenced by motives for the benefit of his client. Therefore, where ■ 
 the plaintiff, alleged by the defendant to be young and extravagant, applied to a 
 solicitor to raise a certain sum on mortgage, and the latter, with a view to prevent 
 the former from dissipating his fortune tied up the whole of his property, and con- 
 stituted himself sole trustee, the court, on bill filed by the plaintiff, alleging that 
 the deed of settlement had been prepared whhout his authority, consent, or know- 
 ledge, and there not being any evidence to the contrary, declared the deed void 
 in equity, and directed a reconveyance of the trust proprety by the trustee. Moore 
 V. Prance, 15 Jur. 1188; 20 L. J. Ch. 468. But if voluntary such a deed would 
 be supported. Slifer v. Beates, 9 S. & R. 166, 179. 
 
112 CREATION OF TRUSTEES 
 
 good even against subsequent purchasers ; for the statute 27 Eliz. 
 does not apply to personal estate. («) 
 
 The fact that the deed remains in the possession of the party, by 
 
 (s) Bill V. Cureton, 2 M. & K. 503, 512. [See post 90.] 
 
 were communicated by the trustees to the creditors that would defeat the power of 
 revocation by the debtor, see 2 M. & K. 495. And it has been decided that the 
 trustees of such a deed are at any rate entitled to an answer to a bill filed by 
 them against the maker of the deed and the person, in whom the legal estate of 
 the assigned property was vested, to obtain a transfer of that property; where the 
 the trustees had acted upon the deed by making payments in advance, and 
 Lord Langdale in that case appears to have been inclined to support the validity 
 of the deed on general grounds. Hinde v. Blake, 3 Beav. 234. [See further 
 Simmonds v. Palles, 2 Jones & Lat. 489; Brown v. Cavendish, 1 Idem. 606; 
 Semple in re 3 Id. 488; Smith v. Keating, 6 C. B. 136. In Smith u. Hurst. 17 
 Jur. 30, 32, it was said by V. C. Turner to be the result of the authorities that 
 whether a trust for creditors was revocable depended on the circumstances of 
 each case. Thus in GrifRts v. Rioketts, 7 Hare, 307, 14 Jur. 166 ; it was held that 
 such a trust was not revocable as against any creditors with whom such commu- 
 nications had taken place as would give them an interest under the deed, but at 
 the most only as to the surplus of the estate after satisfying such creditors, and 
 even as to this it was a question. So where a deed of assignment of debtor's 
 personal property to a trustee for the benefit of all his creditors, who should 
 execute or accede to the deed, was bona fide made and executed by both 
 the debtor and the trustee, and the property taken possession of under it, and 
 afterwards the trustee by his assent communicated the contents of the deed and 
 all that had been done to three of the creditors, each of whom expressed himself 
 satisfied with the assignment, but neither they nor any others of the creditors 
 signed the deed or did any act under it, the Court of Queen's Bench held that 
 the deed was valid, and the title in the trustee as against an execution creditor. 
 Harland v. Binks, 15 Q. B. 713 ; 14 Jur. 979 ; 20 L. J. [Q. B.] 126. Where cre- 
 ditors have actually executed the deed it cannot any longer be treated as a mere 
 voluntary deed of agency revocable by the debtor, Mackinnon v. Stewart, 1 
 Eng.L. &E. 158, 1 Sim. N. S. 76; see the remarks in this case by Rolfe, V.Ch. 
 (the present Lord Chancellor) on Garrard v. Lord Lauderdale, and that class of 
 cases. 
 
 In the United States though, the trustees in a voluntary assignment are. be- 
 fore the assent of creditors considered rather as the agents of the assignor than 
 of the creditors, Brooks v. Marbury, 11 Wheatou, 79; see Watson i). Bagaley, 2 
 Jones, 164; the latter may, on being informed of it, claim the benefit of its 
 provisions and enforce it in equity, though not actually parties thereto. Moses v. 
 Murgatroyd, 1 John. Ch. 119; Shepherd t». McEvers, 4 J. C. E.. 136; Pingree v. 
 Comstock, 18 Rich. 46 ; Weir v. Tannehill, 2 Yerg. 57 ; Montelius v. Wright, 
 Wright, 61 ; Pearson v. Rockhill, 4 B. Monr. 296 : Robertson v. Siblett, 6 Humph. 
 313 ; Ingram v. Kirkpatriok, 6 Ired. Eq. 463 ; Pratt v. Thornton, 28 Maine, 355. 
 See Read v. Robinson, 6 W. & S. 239. Where any of the trusts have been 
 executed, Ingram v. Kirkpatrick, 6 Ired. Eq., 463 ; or notice has been given to the 
 creditors. Gait i;, Dibrell, 10 Yerg. 147 ; Petriken i). Davis, 1 Morris, 296, the assign- 
 ment is of course irrevocable. See the remarks on the English cases in Tennant 
 V. Stoney, 1 Rich. Ch. 223, and the able notes of the late Mr. Wallace to Ellison 
 V. Ellison, 1 Lead. Cas. Eq. 215; and to Thomas v. Jenks, 1 Amer. Lead. Cas. 78. 
 See the note, post. 332 ; and Burrill on Assignments, 280, 306, where the sub- 
 ject is fully discussed.] 
 
BY VOLUNTARY DISPOSITION. 113 
 
 ■whom it is executed, and that it is not acted upon, or is even subse- 
 quently destroyed, will not affect its validity, unless there are some 
 other circumstances connected with the transaction, which would 
 render it inequitable to enforce its performance. (t) 
 
 However it has long been an established principle with courts of 
 equity, that they will not interfere to perfect the title of a party 
 claiming merely as a volunteer.(l) Therefore if the transaction, on 
 which the voluntary trust is attempted to be established, be still exe- 
 cutory and incomplete, the court will decline to interpose.(M)' 
 
 (t) Sear u. Ashwell, 3 Swanst. 411, (it) Colraan u. Sarell, 3 Bro. C. C. 
 
 n. ; Barlow v. Heueage, Free. Chan. 12 ; Ellison v. Ellison, 6 Ves. 656 ; An- 
 
 211; Clavering u. Clavering, 2 Vera, trobus «. Smith, 12 Ves. 39; Edwards 
 
 474; see Cecil D. Butcher, 2 J. & W. «. Jones, 1 M. & Cr. 226; Jeffreys v. 
 
 573. [Bunn v. Laithrop, 1 J. C. R. 329 ;] Jeffreys, 1 Cr. & Ph. 138 ; Dillon v. Cop- 
 
 and see post; but see Uniacke v. Giles, pin, 4 M. & Cr. 647. 
 2 Moll. 267. 
 
 (1) With regard to the question of, who are or are not to be regarded as volun- 
 teers, it is settled that a valuable consideration is requisite to put the court in mo- 
 tion. And although Sir E. Sugden, (Lord Chancellor of Ireland,) decided in the 
 case of Ellis v. Nimmo, that the meritorious consideration of blood would be suf- 
 ficient to induce the court to interfere for the purpose of enforcing the perform- 
 ance of an executory trust; Ellis v. Nimmo, 1 Lloyd & Gould, 333; — that decision 
 has been since overruled, and the previous practice restored, by the subsequent 
 cases of HoUoway v. Headington, 8 Sim. 324, and Jefferys v. Jefferys, 1 Cr. & 
 Ph. 138, where it was held by Sir L. Shadwell, V. C, in the one case, and Lord 
 Cottenham, C, in the other, that a valuable consideration only would suffice for 
 this purpose. See Jefferys u. Jefferys, stated post 84, The early 'case of Watts v. 
 Bullas, 1 P. Wms. 60, appears to be in favor of the validity of the consideration 
 of blood to support a trust, at all events as against the heir of the settlor after his 
 death. But that decision cannot be regarded as of much weight when opposed 
 to the general current of the later authorities. [In Moore v. Crofton, 3 Jones, & 
 Lat. 442, Sir Edward Sugden found himself obliged to yield to the current of 
 authority, and to admit Ellis v. Nimmo, to be overruled. He, however declared 
 that he still thought it decided upon sound principles of equity. See 2 Spence, 
 Eq. Jur. 58, note (e) 285;(c) n. 1, White and Tudor, Lead. Ca. 190 ; 13 Jur. part 
 II., page 213. In America, however,a blood consideration has been held to be 
 enough to support an executory trust in equity, at least where the instrument was 
 under seal. Taylor v. James, 4 Desau. 5 ; Mclntire v. Hughes, 4 Bibb. 186 ; Cald- 
 well V. Williams, 1 Bailey, Ch. 175. In Dennison v. Goehring, 7 Barr. 175, Gib- 
 son, C. J. thought that a voluntary trust in favor of the children of the grantor 
 could be enforced ; though the case was in fact one of a constituted trust, which was 
 undoubtedly irrevocable. So in Hayes -u. Kershaw, 1 Sandf. Ch. 261, the assis- 
 tant Vice Chancellor remarked, "covenants and agreements founded upon a good 
 
 'Bunn V. Winthrop, 1 J. C. R. 329; Hayes v. Kershaw, 1 Sanf. Ch. 258; Min- 
 turn V. Seymour, 4 J. C. R. 497 ; Acker o. Phcenix, 4 Paige, 308 ; Bank v. May, 3 
 A. K. Marsh, 436 ; Dennison u. Goehring, 7 Barr, 175; Clarke v. Lott, 11 lUin. 
 105; Caldwell v. Williams, 1 Bail. Eq. 175; Dawson v. Dawson, 1 Dev. Eq. 93; 
 Forward v. Armstead, 12 Alab. 127; Darlington v. McCoole, 1 Leigh. 36; Readi). 
 Robinson, 6 W. & S. 331; Crompton v. Vasser, 19 Alab. 259. 
 
114 CREATION OF TRUSTEES 
 
 But although there may not be any actual conveyance or assign- 
 ment vesting the legal interest in the property in trustees for the ob- 
 jects of the settlor's bounty, yet if the relation of trustee and cestui 
 que trust be otherwise completely and effectually constituted, that is 
 regarded in equity as a perfect title, and will be enforced as such on 
 behalf of the cestui que trust.{x) This distinction was put very forci- 
 bly by Lord Eldon in the case of ex parte Pye. "It has been de- 
 cided," said that learnedjudge," that upon an agreement to transfer 
 stock this court will not * interfere ; but if the party Tias de- 
 '- J dared himself to be the trustee of that stock, it becomes the 
 property of the cestui que trust without more, and the court will act 
 upon it."(y) 
 
 However, the distinction between what will or will not constitute 
 a complete and perfected voluntary trust, depends upon very nice and 
 refined considerations ;(2!) and the cases on the subject appear to be 
 somewhat at variance with each other. 
 
 A voluntary agreement or covenant to convey property upon trust, 
 though under seal, is clearly executory, and will not be enforced 
 against the covenanting party.(a) This rule was strikingly exempli- 
 fied in a recent case before Lord Cottenham ; where a father by a 
 voluntary settlement conveyed certain freehold estates, and hy the 
 same deed covenanted to surrender certain copyhold lands to trustees, 
 in trust for the benefit of his daughters. The settlor afterwards 
 devised part of the estates comprised in the settlement to his wife, 
 who was admitted to some of the copyholds. Aftet the father's 
 death a bill was filed by the daughters against the wife and the 
 trustees to establish the trust of the settlement, and the Lord Chan- 
 cellor granted the relief prayed, as far as it related to the freeholds, 
 but dismissed the hill with costs as to the copyholds. (6) 
 
 So any voluntary instrument, which has not the effect of convey- 
 ing or transferring the legal interest in the property, with which it 
 
 (a;) Pulvertoft u. Pulvertoft, 18 Ves. (a) Ellison v. Ellison, 6 Ves. 656; 
 
 99; Wheatley t). Purr, 1 Keen, 551; Cotteen ». Missing, 1 Mad. 176; [1 
 
 Collinson v. Patrick, 2 Keen, 123; Leigh, 36; 12 Alab. 127; Ij. C.R.3; see 
 
 Lechmere v. E. of Carlisle, 3 P. Wms. however Mclntire v. Hughes, 4 Bibb, 
 
 222. 186 ; Caldwell v. Williams, 1 Bail. Eq. 
 
 {y) Ex parte Pye, 18 Ves. 149. 175.] 
 
 (z) See M'Fadden v. Jenkyns, 1 (6) Jefferys v. Jefferys, 1 Cr. & Ph. 
 
 Phill. 157. 138. 
 
 consideration, or as it is oftentimes expressed, a meritorious consideration, are up- 
 held and enforced in this court." But in Kennedy's executor v. Ware, 1 Bair 
 445, it was held that natural love and affection was not a sufficient considera- 
 tion for an equitable assignment. Collateral consanguinity, is clearly insuf- 
 ficient. Hayes v. Kershaw, 1 Sandf. 258; Buford's heirs v. McKee, I Dana, 
 107.] ' 
 
BY VOLUNTARY BISPOSITION. "115 
 
 attempts to deal, appears to be on the same footing as a mere agree- 
 ment to assign ; and it ia immaterial that it professes in terms to be 
 a complete and actual assignment or conveyance of the property in 
 question. It is obvious, that such a disposition is still imperfect and 
 incomplete, and can only be perfected by a decree of a court of 
 equity compelling a conveyance by the owner of the legal estate, 
 consequently such an instrument will not of itself create a binding 
 trust ;(e)' although it may have that effect if it be accompanied by 
 some additional and conclusive act or declaration constituting a 
 perfect trust.((^) 
 
 Thus where a voluntary assignment of stock was made, by deed 
 to trustees, for the benefit of a person named in the deed ;(e)^ or of 
 India Stock, and shares in an Insurance Company, the legal title to 
 which did not pass by that mode of assurance :(/) or of the expectant 
 equitable interest of a party in a sum of money as the next of kin 
 of the person entitled in possession ;(^) or where a memorandum was 
 endorsed on a receipt for a subscription to a navigation,(A) or on a 
 bond,(2') which memorandum purported to be an assignment by the 
 owner to the party named in the memorandum; in all these cases 
 the court has considered the gift to be incomplete, and has refused 
 to enforce it as a trust against the parties, by whom it was made. 
 
 (c) Colman v. Sarell, 3 Bro. C. C. 123; Rycroft «. Christie, 3 Beav. 238 ; 
 12; Antrobus u. Smith, 12 Ves. 39; Hinde -u. Blake, id. 234. 
 
 Edwards v. Jones, 1 M. & Cr. 226; (e) Colman «. Sarell, 3 Bro. C. C. 12. 
 
 Meek v. Kettlewell, 1 Hare, 464; af- (/) Dillon v. Coppin, 4 Jurist, 427; 
 
 firmed on appeal by Lord Lyndhurst, S. C, 4 M. & Cr. 647. 
 
 1 Phill. 342 : Dillon v. Coppin, 4 Jurist, (g) Meek v. Kettlewell, 1 Hare, 464; 
 
 427; S. C. 4 M. & Cr. 647; Beatson v. affirmed 1 Phill. 342. 
 
 Beatson, 12 Sim. 281. Qi) Antrobus v. Smith, 12 Ves. 39. 
 
 (d) CoUinson v. Patrick, 2 Kean, (i) Edwards v. Jones, 1 M. & Cr. 
 
 226. 
 
 ' This doctrine and the cases cited below in its support, were substantially 
 overruled in a recent case, Kekewitch v^ Manning, 12 Eng. L. & E. 120, stated 
 post, page 88. The necessity that the legal title must pass at the time of the 
 gift, was directly denied by the Lord Justices, and an assignment of a reversion- 
 ary equitable interest to trustees for volunteers, supported. 
 
 ^The assignment of a debt to another, for the benefit of a third person creates 
 a trust, which though voluntary can be enforced. Kirkpatrick v. Macdonald, 1 
 Jones, 390, see Stapleton v. Stapleton, 14 Sim. 186; notes to Ellison v. Ellison, 
 1 Lead. Cas. Eq. 177. A. directed his agents to invest part of his balance in 
 their hands, in the purchase of £4000 stock, in the names of himself and his 
 wife, in trust for his infant son. The agents made the purchase in the joint 
 names, but without any trust expressed, because as they afterwards informed 
 A., the bank objected to trust accounts on their books. A. allowed the stock to 
 remain without any trust being declared, and received the dividends of it down 
 to his decease. It was held that neither his son nor his wife (who survived him) 
 were entitled to the slock; which formed part of his assets. Smith v. Warde, 15 
 Sim. 56. 
 
116 CREATION OF TRUSTEES 
 
 r*851 *Although some of these cases appear to have been much 
 stronger in favor of the trust than Oithers, the decisions clearly 
 establish, that a voluntary assignment of property, which cannot be 
 dealt with by assignment at law, will be equally ineffectual for the 
 purpose of raising a trust against the assignor, whether it be or 
 be not under seal, and executed in a legal form.(A;) 
 
 It appears also to be immaterial, whether the gift in such cases be 
 made directly to the parties, who claim the trust, or to trustees for 
 their benefit.(?) 
 
 In some of the cases, the fact of the instrument of gift remaining 
 in possession of its author, and not being acted on up to the time of 
 his death, seems to have had some influence on the court in decid- 
 ing against the trust ; and unquestionably that is a very strong cir- 
 cumstance against it.(m) But in Edwards v. Jones, the memoran- 
 dum, assigning the bond, was not only communicated by the donor 
 to the object of her bounty, but was also acted upon by the delivery 
 of the bond itself to the volunteer : and yet the court refused to re- 
 cognise this transaction as a trust.(w) In a recent case Sir. J. Wig- 
 ram, V. C, observed, " that the case of Edwards 'V. Jones shows, 
 that the most clear intention to confer an interest by a present act 
 may not be sufficient to create a trust in favor of a volunteer, 
 although made by the party, in whom the legal interest may be, and 
 communicated by that party to the intended cestui que trust." {o)(^) 
 
 It would seem to follow from the foregoing decisions, that the 
 
 (t) Colman v. Sarell, 3 Bro. C. C. 4 Jurist, 427; and 4 M. & Cr. 647, it 
 
 12; Meek D. Kettlewell, 1 Hare, 474; was to trustees. 
 
 Edwards «. Jones, IM. &Cr. 226; Hoi- (m) Antrobus i;. Smith, 12 Ves. 39; 
 
 loway V. Headington, 8 Sim. 324. But Dillon v. Coppin, 4 Jur. 427 ; S. C. 4 
 
 from the report of this last case it does M. & Cr. 647 ; Uniacke v. Giles, 2 Moll, 
 
 not appear what was the nature of the 267. 
 
 property included in the settlement. (n) Edwards v. Jones, 1 M. & Cr. 
 
 [But see ante, 84 note.] 264. 
 
 (J) In Antrobusv. Smith, 12 Ves. 39 ; (o) Meek v. Kettlewell, 1 Hare, 472; 
 
 Edwards v. Jones, 1 M. & Cr. 226 ; and affirmed, L. C. Lyndhurst, 1 Phill. 342. 
 
 Meek v. Kettlewell, 1 Hare, 464, the See also Coningham v. Plunkett, 2 N. 
 
 gift was direct. In Coleman v. Sarell, C. C. 245. 
 3 Bro. C. C. 12 ; and Dillon v. Coppin, 
 
 (1) It is material for the party who seeks to enforce the trust in these cases, 
 to show, that the persom making the assignment has done all in his power to 
 divest himself of the property, and the right to control it. On this ground where 
 the subject of the assignment was stock in the public funds, and the legal title 
 was not completed by a transfer ; or where it was India stock, or shares in an 
 insurance society, the legal interest in which might have been transferred by 
 the owner by a different mode of assurance, which he neglected to adopt, the 
 transaction was regarded as imperfect and incomplete. Coleman v. Sarell, 3 
 Bro. C. C. 12; Dillon u. Coppin, 4 Jurist, 427; S. C. 4 M. & Cr. 647, and see 
 Coningham v. Plunkett, 2 N. C. C. 245. 
 
BY VOLUNTARY DISPOSITION. 117 
 
 court will in no case interfere, to enforce the performance of a vol- 
 untary trust against its author, if the legal interest in the property 
 he not transferred or acquired, as part of the transaction creating 
 the trust. 
 
 The doctrine of the court however does not appear in fact to be so 
 confined. If a formal declaration of trust he made by the legal 
 owner of the property, declaring himself in terms the trustee of that 
 property for a volunteer, or directing, that it shall be held in trust 
 for the volunteer, the court will consider such a declaration as a trust 
 actually created, and will *act upon it as such.(^) And a 
 similar declaration or direction even by the equitable owner, L J 
 has also been supported as a valid trust.(g') 
 
 Thus in ex parte Pye, a testator directed by letter his agent at 
 Paris to purchase an annuity for a lady. This was done, but the 
 purchase was made in the name of the testator, who afterwards sent 
 over a power of attorney, authorizing the agent to transfer the an- 
 nuity into the name of the lady. Before the transfer was made the 
 testator died, but the agent, while ignorant of the death of his prin- 
 cipal, had actually made the transfer, which under those circumstan- 
 ces was valid by the law of France. It was held by Lord Eldon, 
 that the testator had committed to writing a sufficient declaration, 
 that he held that part of his estate in trust for the annuitant. (r) 
 
 In Wheatley v. Purr, a testatrix directed her bankers to place a 
 sum of 2,000Z. in the joint names of the plaintiffs, and of herself as a 
 trustee for the plaintiffs. The sum was placed by the bankers in 
 their books to the account of the testatrix alone, as trustee'for the 
 plaintiffs, and a promissory note for the amount with interest was 
 given by them to her as such trustee. This note remained in her 
 possession at her death, and her executor received the money, and 
 invested it in his own name. It does not appear from the report of 
 the case, whether any interest on the note was received by the tes- 
 tatrix in her lifetime. Under these circumstances Lord Langdale, 
 M. R., held, that the transaction amounted to a complete declara- 
 tion of trust, and that the executor was a trustee for the plaintiffs, 
 in whose favor the trust was created.(s) So in the recent case of 
 M'Fadden v. Jenkins,(i) A. had sent a direction to B., who owed 
 him 500Z., to hold the debt in trust for a third person, who was a 
 volunteer, B. assented to the direction, and paid lOZ. to the volunteer 
 
 (p) Ex parte Pye, 18 Ves. 149; (g) Collinson v. Patrick, 2 Keen, 
 
 Wheatley v. Purr, 1 Keen, 551 ; Meek 123; Rycroft v. Christy, 3 Beav. 238. 
 
 «. Kettle well, 1 Hare, 470; 1 Phin. 342; (r) Ex parte Pye and Dubost, 18 
 
 M'Fadden v. Jenkins, 1 Hare, 458 ; and Ves. 140. 
 
 iPhill. 153, 7;James«.Bydder, 4Beav. Cs) Wheatley i). Purr, 1 Keen, 551. 
 
 600 ; Thorpe v. Owen, 5 Beav. 224. (<) M'Fadden v. Jenkins, 1 Hare, 
 
 458 : 1 Phill. 153. 
 
118' CREATION OF TRUSTEES 
 
 as part of the trust money. And on appeal, this direction was con- 
 sidered by Lord Lyndhurst, C, as a complete and irrevocable trust, 
 and one that was binding on A.'s executors.(«) And in the still 
 later case of Thorpe v. Owen,(M) where B. in his lifetime had added 
 a sum of 1,0001. belonging to himself to a trust fund held by him 
 for the benefit of his daughters, and had invested the whole aggre- 
 gate sum together in his own name, and he subsequently treated 
 and admitted the whole sum including the 1,000Z. to be held in trust 
 for his daughters. It was held by Lord Langdale, M. R., upon B.'s 
 death, that there had been sufficient to constitute a trust in favor of 
 the daughters.(M) However in Gaskell v. G-askell(a;) a person wrote 
 to his bankers, desiring them to transfer certain sums into the names 
 of himself and three other persons as trustees for his wife for life, 
 and after her death for his son. The transfer was made ly the 
 hankers, but there was some proof, that no communication of the 
 transaction was made to the other trustees, and that the arrange- 
 ment was made with *the view of avoiding legacy duty. 
 L J Under these circumstances, it was held by the Court- of Ex- 
 chequer, that the fund was never out of the settlor's power, and that 
 he might at any time have revoked the disposition, and consequently, 
 that it formed part of his personal estate. It seems very difficult to 
 reconcile this decision with the principle established by the series of 
 cases above mentioned. 
 
 In these cases the legal ownership of the property was vested in 
 the party by whom the trust was declared ; but it has been decided 
 that a mere equitable interest may also be the subject of a similar 
 declaration. 
 
 Thus in CoUinson v. Patrick, a bond had been assigned to trustees, 
 in trust for such persons, &c., as A. (a feme coverte) should appoint 
 and in default of appointment, for her separate use. A. by deed 
 voluntarily appointed the sum secured by the bond to one of the 
 plaintiffs in trust for the other two plaintiffs ; and Lord Langdale, 
 M. R., considered that this was a complete declaration of trust, 
 which the court would execute. (t/) And in a subsequent case, where 
 a perfeon, having an equitable life interest in a sum of money, vested 
 in a trustee by a voluntary deed directed the trustee to apply part 
 of the income for the benefit of an infant ; and the trustee accepted 
 the trusts of that deed and acted upon it ; it was held by the same 
 learned judge, that a valid executed trust was created, which could 
 not be revoked.(2!) 
 
 («) M'Fadden v. Jenkins, 1 Hare, Jer. 502. [See. Smith v. Warde, ante 
 458: iPhill. 153. 84, note]. 
 
 (u) Thorpe v. Owen, 5 Beav. 224 ; (y) CoUinson v. Patrick, 2 Keen, 
 and see James v. Bydder, 4 Beav. 600. 123. 
 
 {x) Gaskell v Gaskell, 2 Young & {z) Rycroft t). Christy, 3 Beav. 238; 
 
 and see Hinde v. Blake, ib. 234. 
 
BY VOLUNTARY- DISPOSITION. 119 
 
 The declaration of trust, however, must be complete and unequivo- 
 cal ; therefore a letter by a residuary legatee to executors, stating 
 that she would consent to a gift of 500Z. to a volunteer, was con- 
 sidered to indicate merely an intention to give, and not to create a 
 trust, (a) 
 
 Mareover, although the declaration of the trust be distinct and 
 perfect, yet if its limitations are of an executory character, the court 
 will not, as against the author of the trust, interfere on behalf of a 
 volunteer to give them effect. (J) And where an equitable interest 
 is the subject of such a declaration, it seems to be necessary to show, 
 that notice had been given to the trustees, in whom the legal estate 
 was vested, and that the trust had been accepted by them. (c)(1) 
 
 However, decisions are to be found in the books, which it is very 
 difiBcult to reconcile with some of the propositions stated above. In 
 Sloane v. Cadogan, Mr. Cadogan, being entitled to an equitable re- 
 versionary interest in a sum of money, assigned it by a voluntary 
 deed to trustees, upon trusts for the benefit of himself and his wife 
 for their lives, with an ultimate trust, which took effect, for his 
 father. Lord Cadogan ; under this trust the executors of Lord Cadogan 
 obtained payment of the fund from the trustees, and the bill was 
 filed by Mr. Cadogan's widow, who was also his executrix and resi- 
 duary legatee, against the executors of Lord Cadogan, to recover the 
 fund, as part of Mr. Cadogan's estate. But Sir *'Wm. Grant, 
 M. R., held that the transaction had created a valid trust, L J 
 and dismissed the bill.(c^) 
 
 In Fortescue v. Barnett the defendant made a voluntary assign- 
 ment of a policy of assurance on his life to trustees, upon trusts for 
 the benefit of her sister and her children. The deed of assignment 
 was delivered to one of the trustees, but the policy remained in the 
 defendant's possession, and no notice of the transaction was given 
 to the insurance society. The defendant subsequently received a 
 bonus, and ultimately disposed of the policy itself to the society, 
 and received the proceeds. The bill was filed by the surviving 
 trustee of the deed, to compel the defendant to replace the amount 
 
 (0) Cotteen v. Missing, 1 Mad. 176. M'Fadden v. Jenkins, 1 Phill. 153, 7. 
 (6) Colman V. Sarell, 3 Bro. C. C. 12; [See on this Kekewitch v. Manning, 
 
 Holloway v. Healington, 8 Sim. 324. 12 Eng. L. & E. 127.] 
 
 (c) Beatson 1). Beatson, 12 Sim. 281; (d) Sloaue v. Cadogan, 2 Sugd, V. 
 
 Meek v. Kettlewell, 1 Hare, 476 ; 1 & P. Appendix, No. 26, 9th ed. [af- 
 
 Phill. 342 ; Rycroft v. Christy, 3 Beav. firmed Kekewitch v. Manning, 12 Eng. 
 
 238 ; see Godsall v. Webb, 2 Keen, 99 ; L. & E. 120.] 
 
 (1) Where the interest, which is the subject-matter of such a declaration, is a 
 mere expectancy or possibility, that circumstance will have some influence with 
 the court in determining that the trust is not^ effectually created. Meek v. Ket- 
 tlewell, 1 Hare, 476. [See 13 Jur. p. II., pag'e 213]. 
 
120 CREATION OF TRUSTEES 
 
 of the sum secured by the policy and the bonus ; and Sir John 
 Leach, M. R., held, that a complete trust had been created, and 
 decreed according to the prayer of the bill.(e) 
 
 With regard to this last case Lord Cottenham has observed a dis- 
 tinction, which reconciles it in some measure with the other authori- 
 ties. "There," said his lordship, "the practice of the office was 
 stated to be, that upon an assignment, the office recognised the 
 assignee, and the policy was therefore an assignable instrument. 
 The policy was not assignable at law, but it was a title which, by 
 contract, was assignable as between the parties."(/) 
 
 The case of Sloane v. Cadogan has been disapproved of by Sir 
 E. Sugden •,{g) and the observations of Lord Cottenham in Edwards 
 V. Jones, and of Sir J. Wigram in Meek v. Kettle well, (A) tend con- 
 siderably to weaken its authority. However it has been remarked 
 by Lord Cottenham, that the claim in that case " was not against 
 the donor or his representatives, for the purpose of making that 
 complete which was left imperfect; but against the persons, who 
 had the legal custody of the fund."(i) For it will be observed, that 
 the trustees of the voluntary settlement had actually obtained pay- 
 ment of the fund. 
 
 It will be seen from what has gone before, that it is extremely 
 difficult in the present state of the authorities, to define with accu- 
 racy the law, affecting this very intricate subject. However the 
 writer conceives that he is warranted in stating the following pro- 
 positions to be the result of the several decisions. ' 
 
 (e) Fortescue v. Barnett, 3 M. & K. (h) 1 Hare, 475, and see Fenner v. 
 36. Taylor, 2 R. & M. 195, 
 
 (/) In Edwards v. Jones, 1 M. & Cr. (i) Edwards v. Jones, 1 M. & Cr. 238; 
 239. and see the examination of this case by 
 
 (g) 2 Sugd. V. & P.168, 9th Ed. Sir L. Shadwell, V. C. E. in Beatson v. 
 
 Beatson, 12 Sim. 291. 
 
 ' These questions were very thoroughly discussed, in Kekewitch v. Man- 
 ning, 1 De Gex., M. & G. 176; 16 Jnr. 625; 12 Eng. L. & E. 120, before the 
 Lord Justices of Appeal. In that case, residuary estate, consisting of money in 
 the funds, was bequeathed to a mother and daughter, in trust for 5ie mother for 
 life, and afterwards for the daughter absolutely. The daughter afterwards during 
 the life of her mother assigned her interest under the will to trustees in trust for 
 the issue of a contemplated marriage, and for a niece and her issue. The mo- 
 ther and daughter were executrices; the former, however, did not join in the 
 settlement, though she had notice of it before her death. It was held that this 
 settlement was valid and enforceable by the trustees against the daughter, and 
 against the trustees under a subsequent settlement. The cases of Sloane v. Ca- 
 dogan, Fortescue v. Barnett, above cited, and Blakely v. Brady, 2 Dr. & W. 311, 
 were deliberately affirmed, and Edwards v. Jones, Meek u. Kettlewell, &o., so 
 far as inconsistent therewith overruled. The recent case of Bridge v. Bridge, 
 13 Eng. L. & Eq, 497, however, is- in accordance with ihe doctrine of the text. 
 See also 1 Am. Law. Reg. 385. 
 
BY VOLUNTARY DISPOSITION. 121 
 
 1st, Where the author of the voluntary trust is possessed of the 
 legal interest in the property. 
 
 A clear declaration of trust contained in or accompanying a deed 
 or act, -which passes the legal estate, will create a perfect execifted 
 trust, and will be established against its author, and all subsequent 
 volunteers claiming under him. (A) 
 
 A clear declaration or direction by a party that the property 
 shall be held in trust for the objects of his bounty, though unac- 
 companied by a *deed or other act, divesting himself of the p^gQ-, 
 legal estate, is an executed trust, and will be enforced against ^ J 
 the party himself or against his representatives, or next of kin after 
 his death. (Z) 
 
 An instrument, purporting to be a conveyance or assignment of 
 property, either directly to the objects of the party's bounty,(»n) or 
 to trustees in trust for them,(w) but which does not operate to devest 
 the grantor of the legal estate, does not create a perfect executed 
 trust, and its execution will not be enforced in equity against the 
 party himself, or against his representatives after his decease. And 
 it is immaterial whether the instrument be a mere note or memoran- 
 dum :(o) or a deed under seal and formally executed.(^) 
 
 If however, the title of the parties, taking under such an assign- 
 ment (though not good at law), is recognised by an express custom 
 or convention (as in the case of a policy of insurance), an absolute 
 voluntary assignment upon trusts may have the same effect as a 
 perfect legal conveyance.(5') 
 
 2d. Where the author of the trust is possessed only of an equi- 
 table interest. 
 
 If a party, having the equitable interest in property, execute a 
 formal instrument, directing the trustee, in whom the legal interest 
 is vested, to hold in trust for a volunteer; and this direction is 
 
 (4) Barlow D.Heneage, Free. Ch. 211. Ion «. Coppin, 4 Jur. 427 ; Sf C. 4 M- 
 
 Clavering v. Clavering, 2 Vera. 474; and Cr. 647. 
 
 Sear v. Ashwell, 3 Sw. 411, n.; Bolton (n) Colman v. Sarell, 3 Bio. C. C. 12; 
 
 V. Bolton, ib. 413, n.; Jefferys v. Jef- HoUoway «. Headington, 8 Sim. 324. 
 ferys, 1 Cr.& Ph. 138; Smiths. Lynda, (o) Antrobus v. Smith, 12 Ves. 39 ; 
 
 2 N. C. C. 345. Edwards v. Jones, 1 M. & Cr. 226. 
 
 (Z) £x parte Pye and Dubost, 18 Ves. (p) Colman v. Sarell, 3 Bro. C. C. 12 ; 
 
 140; Wheatly ti. Purr, 1 Keen, 551; HoUoway u. Headington, 8 Sim. 324; 
 
 M'Fadden v. Jenkins, 1 Hare, 458; S. Meek v. Kettlewell, 1 Hare, 474, 5; 1 
 
 C. 1 Phil. 153, 7; James v. Bydder, 4 Phill. 343; Dillon r.Coppin, 4 Jur. 427; 
 
 Beav. 600; Thorpe v. Owen, 5 Beav. 4 M. & Cr. 647. 
 224. (5) Fortescue v. Barnet, 3 M. & K. 
 
 (m) Antrobus v. Smith, 12 Ves. 39; 36; see Edwards v. Jones, 1 M. & Cr. 
 
 Edwards v. Jones. 1 M. & Cr, 228 ; Dil- 239. 
 
122 CREATION OF TRUSTEES. 
 
 accepted and acted upon hy the trustee. That is an executed trust, 
 which will be binding on the party who gives such a direction, (r) 
 
 But a formal assignment of a mere equitable interest in a fund, 
 wiiy not create an executed or binding trust ; especially if no notice 
 of the assignment be given to the trustees of the fund, or, if given, 
 it is not accepted by then!i.(8) 
 
 The decision of Sir Wm. Grant in Sloane v. Cadogan would seem 
 to establish, that a voluntary conveyance of a mere equitable interest 
 upon trusts, which are declared, will have the same effect in creating 
 a binding trust, as a conveyance of a legal estate. But the autho- 
 rity of that case, which was considerably weakened by the disappro- 
 bation it has received both from Sir E. Sugden, and Lord Cotten- 
 ham, must now be considered as completely overturned by V. C. 
 Wigram's decision in the recent case of Meek v. Kettlewell,(i) which 
 has since been affirmed on appeal by Lord Lyndhurst, Chancel- 
 lor.(M)(l) 
 
 r#Qm *-^y ^^^ statute 13 Eliz. c. 5, a voluntary conveyance of 
 property whether real or personal upon trusts, will be void, 
 and may be set aside as fraudulent by the creditors of the settlor, 
 if he were indebted to the extent of insolvency at the time of mak- 
 ing the settlement. (a;)^ 
 
 (r) Rycroft v. Christy, 3 Beav. 238 ; (i) 1 Hare, 475. 
 
 CoUinson D.Patrick, 2 Keen, 123;Meek (u) 13 Law Joum. N. S. Chanc. 28; 
 
 V. Kettlewell, 1 Hare, 471; but see 1 Phill. 343 ; but see ante note to page 
 
 Beatson v. Beatson, 12 Sim. 281. 88.] 
 
 (s) Meek v Kettlewell, 1 Hare, 464- {x) Fletcher v. Sidley, 2 Vern. 490; 
 
 76; and see Beatson i). Beatson, 12 Sim. Taylor u. Jones, 2 Atk. 600. 
 281. 
 
 (1) In a recent case at the Rolls, A. made a voluntary assignment of personal 
 property, including a mortgage debt and a policy of insurance, to a trustee intrust 
 for himself for life and after his death for his nephew and niece. He afterwards 
 made a will, bequeathing the settled property to other persons. It was held by 
 the Master of the Rolls (Lord Langdale), that the Court could not act upon this 
 trust, so far as to make a declaration of the rights of the parties claiming under 
 the settlement. Ward v. Audland, 8 Beav. 201. A bill, previously filed by the 
 trustee and cestui que trusts, against the e.xecutors of the settlor for the recovery of 
 the settled property, had been dismissed by the Vice-Chancellor of England for 
 want of equity, and that decision had been affirmed on appeal by Lord Cotten- 
 ham. S. C. 8Sira. 571. 
 
 'In Skarffv. Soulby, 13 Jur. 1109; 1 Mac. & G. 364, 1 Hall & T. 364, it was 
 held that the mere fact of a settlor's being indebted was not sufficient to in- 
 validate a voluntary settlement j a^d that it was not necessary on the other 
 hand to show insolvency. The American cases on this subject, which are nu- 
 merous and conflicting, will be found collected and very ably discussed in 
 Sexton V. Wheaton, 1 Am. Lead. Cases, 46. See also Wilson v. Howser, 2 Jones 
 Penn. 109, where it was held that a voluntary conveyance by a person indebted 
 
BY VOLTTNTABY DISPOSITION. 123 
 
 And a similar conveyance of real estate (including chattels 
 real), is also inoperative against the claim of a subsequent pur- 
 chaser for valuable consideration under the statute 27 Eliz. c. 4.(?/)' 
 And neither the trustees or cestuis que trusts under the voluntary 
 settlement have any remedy against the settlor, or the purchaser in 
 such a case. (2) And it is immaterial, that the purchaser had notice 
 of the settlement. (a) However, the settlor himself cannot come 
 into a court of equity to enforce the specific performance of a con- 
 tract for the sale of the estate, entered into by him after the settle- 
 ment. (6) 
 
 Chattels personal are not within the statute 27 Eliz. c. 4, and a 
 voluntary settlement of such property will therefore be valid against 
 a subsequent purchaser, (c) 
 
 (y) Sanders v. Dehew, 2 Vern. 272. (6) Johnson v. Legard,.T. & R. 294, 
 
 [Not, however, where the voluntary Smith v. Garland, 2 Mar. 123. 
 settlement was in favor of a charity ; (c) Jones v. Croucher, 1 S. & St. 
 
 Newcastle v. Atty.-Gen., 12 CI. & F. 315. [Adams v. Broughton, 13 Alab. 
 
 402.] 731 ; Bohn v Hendley, 7 H. & J. 257; 
 
 (2) Evelyn v. Templar, 2 Bro. C. C. Sewall v. Glidden, 1 Alab. 53; contra; 
 
 148 ; Williamson v. Williamson, 1 Ves. Hudnal v. Wilder, 4 McCord 295 ; 
 
 516;Pulvertofli;. Pulvertoft, 18Ves. 84. Wade v. Green, et al. 3 Hump. 547; 
 
 (a) Pulvertoft v. Pulvertoft, 18 Ves. Caston v. Cuningham, 3 Strob. 59 ; 
 
 91-93. [But see the American au- Fleming i). Townshend 6 Geo. 103.] 
 thorities cited in notes to 1 Am. Lead. 
 Cases, 62.] 
 
 at the time, is not therefore void if his debts do not bear such a proportion to 
 his whole property as to render their payment doubtful, unless there be actual 
 fraud. 
 
 ' In a recent case in England, Doe d. Newman v. Rusham, 9 L . & E., 410, 
 it was held that the ground on which voluntary conveyances have been 
 held to he void as against subsequent purchasers is, that by selling the property 
 for a valuable consideration, the vendor so entirely repudiates the former vol- 
 untary conveyance, as that it shall be taken conclusively against him and the 
 person to whom he conveyed, that such intention existed when he made the 
 conveyance, and that it was made in order to defeat the purchaser, (see Cath- 
 cart V. Robinson, 5 Peters, 280, remarks of Chief Justice Marshall) ; and it was 
 therefore held, that the Stat. 27 Eliz. c. 4. does not apply to a purchaser from 
 the heir or devisee of one who has made such a conveyance in his lifetime. 
 See also, Doe dem Richards v. Lewis, 5 Eng, L. & E. 402. 
 
[*9i] DIVISION II. 
 
 THE CONSTITUTION OP TRUSTEES BY IMPLICATION, 
 OR CONSTRUCTION OF LAW. 
 
 The relation of trustee may be constituted not only by the ex- 
 press declaration of the parties, but also by virtue of a trust, raised 
 and created by implication, or construction of law. 
 
 Trusts of this description are either implied, or presumed from the 
 supposed intention of the parties, and the nature of the transaction ; 
 when they are known as "resulting or presumptive trusts ;" or they 
 are raised independently of any such intention, and forced on the 
 conscience of the trustee, by equitable construction, and the opera- 
 ration of law; and such may be distinguished as "constructive 
 trusts."(«) 
 
 These trusts are expressly exempted from the operation of the 
 Statute of Frauds by the 8th Sect, of that act, which declares, " that 
 where any conveyance shall be made of any lands or tenements by 
 which a trust or confidence shall or may arise or result by implica- 
 tion 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 that statute had not been made."" 
 
 (a) 1 Ctuis. Dig. 391 ; Story. Equity Hamm. 321 ; Dean v. Dean, 6 Conn. 
 
 Jur. §1195; 1 Spenc. Eq. Jur. 510; 2 285; Rory v. Hegeman, 2 Edw. Ch. 
 
 Id. 198; and see Cook i). Fountain, 3 373; Thomas v. Walker, 6 Hump. 
 
 Swanst. 585. [See Starr v. Starr, 1 93]. 
 
 'The Revised Statutes of New York (3d Ed., Part II., Ch. 1., Art. 6, § 51, &c.,) 
 have abolished resulting trusts arising from the payment of the purchase money, 
 except as regards the creditors of the party paying; see Watson v. Le Row, 6 
 Barb. S. C. 481 ; Jencks v. Alexander, 11 Paige, 619. Though in Louisiana ex- 
 press trusts have been prohibited, this does not affect those arising by implica- 
 tion or operation of law. Gaines v. Chew, 2 How. S. C. 619. The Statute of 
 Rhode Island has omitted the proviso of the 8th section of the English Statute 
 by fraud, in favor of this species of trusts, but this has been ruled lo be imma- 
 terial, for the exception was only in affirmance of the general^ law. Hoxie v. 
 Carr, 1 Sumner 187. 
 
 It must appear on the face of a bill in equity to enforce a trust, whether 
 the trust is direct or by implication of law, and if the latter, the facts whence 
 it is to be implied must be set forth. Rowell v. Freese, 23 Maine, 182. 
 Where there is a written trust, there can be no resulting trust ; the one excludes 
 the other. Leggett u. Dubois, 5 Paige 114; Anstice v. Brown, 6 Paige 448; 
 Clark V. Barnham, 2 Story, 1 ; Mercer v. Stark, 1 Sm. & M. Ch. 479. A resulting 
 trust is. of course, not executed by the Statute of Uses. Strimpfier v. Roberts, 18 
 Penn. St. R. 301. 
 
CHAPTERI. 
 
 TRUSTEES BY "VIRTUE OF A RESULTING OR PRESUMPTIVE 
 
 TRUST. 
 
 I. Where a Purchase is made III. Where there is a voltjn- 
 BY ONE Person IN THE NAME TART Disposition op Pro- 
 
 of ANOTHER, [91]. PERTT UPON TRUSTS, WHICH 
 
 II. Where there is a Volun- are not Declared, or are 
 
 TART CoNVETANCE WITH- ONLT PARTIALLT DECLARED, 
 
 OUT ANT Declaration op or Fail, [113]. 
 
 Trust, [106]. 
 
 I.— WHERE A PURCHASE IS MADE BT ONE PERSON IN THE NAME OP 
 
 ANOTHER. 
 
 Where, upon a purchase of property, the conveyance of the legal 
 estate is taken in the name of one person, while the consideration is 
 given or paid by another, the parties being strangers to each other, 
 a resulting or presumptive trust immediately arises by virtue of the 
 transaction, and *the person named in the conveyance will r^gon 
 be a trustee for the party from whom the consideration pro- 
 ceeds ;(6)^ and unless such a resulting trust would break in on the 
 
 (6) Willis u. Willis, 2 Atk.71; Lloyd v. Spillet, ib. 150; Rider v. Kidder, 10 
 Ves. 360. 
 
 'Buck V. Pike, 11 Maine, 9; Baker v. Vining, 30 Maine, 126; Page v. Page, 
 8 N. H. 187 ; Pinney v. Fellows, 15 Verm. 525 ; Peabody v. Tarbell, 2 Cush. Mass. 
 232; Livermore v. Aldrich, 5 Cush. 435; Boyd v. McLean, 1 J. C. R. (N. Y.) 582; 
 Botsford'i). Burr, 2 J. C. R. 409 ; Foote v. Colvin, 3 J. R. 216; Jackson v. Seelye, 
 16 J. R. 197: Partridge v. Havens, 10 Paige, 618 ; Depeyster v. Gould, 2 Green. 
 Ch. (N.J.) 480; Stewart i;. Brown, 2 S. & R. (Pa.) 461; Jackman v. Ring- 
 land, 4 W. & S. 149; Newells v. Morgan, 2 Harr. (Del.) 225; HoUis v. HoUis, 1 
 Mary. Ch. 479 ; Dorsey v. Clark, 4 Har. & J. (Mary.) 551 ; Bartk U. S. v. Cuming- 
 ton, 7 Leigh. 566.; Glenn v. Randall, 2 John. Mary. Ch. 221 ; Henderson v. Hoke, 
 1 Dev. & Bat. Eq.(N.C.) 119; McGuirev.McGowen, 4 Dess. (S. C.) 491; Dillard 
 V. Crocker, Spears, Ch. 20; Williams i). Hollingsworth, 1 Strob. Eq. 103; Kirk- 
 patrick v. Davidson, 2 Kelley, (Geo.) 297 ; Foster ■;;. Trustees, 3 Alab. 302 ; Talia- 
 ferro V. Taliaferro, 6 Alab. 404; Mahorner v. Harrison, 33 Sm. & M. (Miss.) 65; 
 Walkerv. Brungard, 13 Sm. & M. 764; Powells. Powell, 1 Freem. Ch. 134 ; Ensley 
 V. Ballantine, 4 Hump. (Tenn.) 233 ; Thomas v. Walker, 6 Humph. 93; Perry v. 
 Head, 1 A. K. Marsh. (Ky.) 47; Letcher v. Letcher, 4 J. J. Marsh. 592; Doyle 
 
126 TRUSTEES BY RESULTING 
 
 policy of an act of parliament, this •will be the case, whatever may 
 
 V. Sleeper, 1 Dana, 536; Elliott ■«. Armstrong, 2 Blaokf. (Ind.) 198; Jenison v. 
 Graves, 2 Blackf. 444 ; Smith v. Saokett, 5 Gilm. (111.) 534 ; Prew v. Walton, 4 
 Scamm. 35; PauU ■!). Choteau, 14 Missouri, 580; McGuire v. Ramsey, 4 Engl. 
 (Ark.) 519; Tarpley v. Poage, 2 Tex. 139 ; Russell v. Lode, 1 Iowa, 566; Powell 
 V. Manufact. Co., 3 Mason,' 362; Phillips v. Cramond, 2 Wash. C. C. 441. In 
 Gomez, v. Tradesman's Bank, 4 Sandf. Sup. Ct. 106; "a resulting trust" was 
 supported in favor of the "Jewish Nation" on the purchase of a burying-ground, 
 the purchase money being paid expressly for the benefit of that nation. Where, 
 however, a trustee purchases in the name of a third person, with trust fund, the 
 resulting trust will not be to himself; but to his cestui que trust. Russell v. Allen, 
 10 Paige, 249. 
 
 A resulting trust may arise where the purchase is directly from the common- 
 wealth, as if a warrant is taken in the name of one, but the money is paid by 
 another. Strimpfler v. Roberts, 18 Penn. St. R. 300. 
 
 A resulting trust has been also held to arise, where a purchase is made by a 
 man in his own name, but with funds in his hands in a fiduciary capacity; as 
 where trustee buys with trust moneys, or a partner with partnership funds. Phillips 
 V. Cramond, 2 W. C. C. R.441 ; Kirkpatrick v. McDonald, 1 Jones, (Penn.) 393; 
 Balvfin v. John^Saxton, A4f; Smith v. Ramsey, 1 Gilm. 373 ; Pugh v. Currie, 5 
 Alab. 446 ; Edgar v. Donelly, 2 Munf. 387; Martin v. Greer, 1 Geo. Dec. 109; 
 Freeman v. Kelley, 1 Hoff. Ch. 90; Moffit v. McDonald, 11 Humph. 457; Smith 
 V. Burnham, 3 Sumn. 435 ; Turner v. Pettigrew, 6 Humph. 438; Piatt v. Oliver, 
 2 McLean, 267 ; Harrisburg Bank v. Tyler, 3 W. & S. 373 ; Wilhelm v. Folmer, 6 ' 
 Barr, 296. So where an agent employed to purchase buys for himself, Church v. 
 Sterling, 16 Conn. 388; Hutchinson i). Hutchinson, 4 Desaus. 77 ; (if the agency 
 appears in writing, otherwise it would be within the Statute of Frauds, see post, 
 96 ; or the trustees of a corporation buy land with the corporate funds, and take 
 the conveyance in their own name, Methodist Church v. Wood, 5 Hamm. 283; or 
 an executor purchases with the avails of his testator's estates, Garrett v. Garrett, 
 1 Strobh. Eq. 96; Wallace v. Duffield, 2 S. & R. 521 ; see Beck v. Uhrick, 16 Penn. 
 St. 499; or a committee invests funds of a lunatic in land, Reed v. Fitch, 11 Barb. S. 
 C. 399 ; or a guardian those of his ward, Caplinger v. Stokes, Meigs. 175 ; in all 
 these cases a trust results to the parties whose money has been misemployed, 
 unless, mdeed, they elect to take the money instead thereof On the same 
 principle, where a husband buys land with his wife's separate property, or with 
 the savings out of her separate estate, a trust results to the wife. Methodist 
 Church V. Jaques, 1 J. C. R. 450 ; 3 Id. 77 ; Brooke v. Dent, 1 John. Mary. Ch. 
 523; Dickinson t). Codwise, 1 Sandf Ch. 214; Pinney i). Fellows, 15 Verm. 525; 
 (though, see Wallace v. McCuUough, 1 Rich. Ch. 526 ;) but as to savings out of 
 moneys supplied by the husband or her earnings, as has been recently decided 
 in Pennsylvania, it is different ; as he is absolutely entitled to these, even under 
 the act of 1848, of that State, called the Married woman's Act. Raybold v. 
 Raybold, Sup. C. Penna. 1 Am. Law Reg. 439. 
 
 It has indeed been doubted, whether in these cases, the cestui que trusts, have 
 properly speaking anything more than a lien for the funds employed in the pur- 
 chase, and a right to a decree for a sale, if necessary to reimburse them. Wal- 
 lace V. Duffield, 2 S. & R. 529, per Gibson J. (though see same judge in 3 ; W. & 
 S. 373), see the note to Woollam v. Hearn, 2 Leading Cas. in Eq. part 11. 
 p. 591 ; Wallace v. McCuUough, 1 Rich. Ch. 426; and so are the earlier English 
 cases : but the current of American authority is as above stated. 
 
 Where, however, there is no fiduciary relation, the mere use of another's 
 money, as where one sells another's property wrongfully and invests the pro- 
 
OB, PRESUMPTIVE TRUST. 127 
 
 be the nature of the property ;^ and whether the conveyance be 
 taken in the names of the purchaser and his nominee jointly, or in 
 the name of the nominee without the purchaser ; whether in one 
 name or several, and whether jointly or successive ; and the principle 
 proceeds upon a strict analogy to the rule of the common law, that 
 where a feoffment is made without consideration the use results to 
 the feoffor, (c)(1) 
 
 A similar rule prevails in cases, where the consideration proceeds 
 from two or more persons jointly, and the conveyance of the legal 
 estate is taken in the name of one of them only. A resulting trust 
 will arise in favor of the parties, not named in the conveyance, in 
 proportion to the amount of the consideration, which they respectively 
 may have contributed.^ This appears to have been doubted by Lord 
 Hardwicke in the case of Crop v. Norton ;(c^ but in the subsequent case 
 
 (c) Dyer v. Dyev, 2 Cox, 92; 2 Sugd. (d) Crop v. Norton, 2 Atk. 74; and 
 V. & P. 134, 9th ed.; 2 Stor. Eq. Jur. 9 Mod. 233. 
 120; 2 Mad. Ch. Pr. 140. 
 
 (1) A distinction is taken by Sir. E. Sugden in hi9 work on vendors and pur- 
 chasers, where two or more persons contract for the purchase of an estate, which 
 is conveyed to them both, butthe money is paid by one only. In that case, says 
 the learned writer, "the one, who paid the money, cannot call upon those, who 
 paid no part of it, to repay him their shares of the purchase- money, or to convey 
 their shares of the estate to him ; nor can it be construed a resulting trust, as 
 such a trust cannot arise at an after period ; and perhaps the only remedy he has, 
 is to file a bill against them for contribution." 2 Sugd. V. & P. 931, 9th edition. 
 
 ceeds in land, Ensley v. Ballantine, 4 Humph. 233 ; or a clerk in a store pilfers 
 money from his employer and buys real estate, Campbell v. Drake, 5 Ired. Eq. 
 94 (though see Bank of America v. Pollock, 4 Edw. Ch. 215), there is no re- 
 sulting trust. 
 
 ' A resulting trust may be set up as to land or slaves, but not as to property 
 more perishable in its nature, as spirituous liquors. Union Bank v. Baker, 8 
 Humph. 447. Generally speaking, however, the doctrine applies to stock or 
 annuities as well as to reahy ; Sidmouth v. Sidmouth, 2 Beav. 454 ; Ex parte 
 Houghton, 17 Ves. 253; Kidder ?;. Kidder, 10 Ves. 365. 
 
 ^ Botsford V. Burr, 2 J. C. E. 405; Pierce v. Pierce, 7 B. Monr. 433 ; Quackenbush 
 V. Leonard, 9 Paige, Ch. 334; Steward v. Brown, 2 S. & R. 461; Bernard ij. 
 Bengrave, Harr. Ch. 12 ; Shoemaker v. Smith, 11 Humph. 80 ; Powell v. Manu- 
 factory, 3 Mason, 347; Letcher v. Letcher, 4 J. J. Marsh. 590; Jackson v. Moore, 
 6 Cowan, 706. But a resulting trust cannot be claimed by one who pays only 
 part, unless it be some definite part. Sayre v. Townshend, 15 Wend. 647 ; 
 Whiter. Carpenter, 2 Paige, 238; Baker, v Vining, 30 Maine, 121. In Shoe- 
 maker V. Smith, 11 Humph. 80, however, it was held that the presumption 
 was, in the first instance, where two contributed the funds, and the convey- 
 ance was taken in the name of one, that the proportions were equal. Where 
 the purchase is made on the credit of two, and one then furnishes the money, 
 and the conveyance is taken in his name, there is no resulting trust. Brooks 
 V. Fowles, 14 N. H. 248. 
 
J28 TRUSTEES BY RESULTING 
 
 of Wray v. Steel(e) the point called for decision, and Sir Thomas 
 Plumer, V. C, following the true principle decided in favor of the 
 resulting trust.(e) The rule under consideration applies to copyhold 
 as well as to other property. (/) And where copyholds are held for 
 three or more lives successive, the other eestuia que vie will in gene- 
 ral he trustees for the individual, by whom the fine and expenses of 
 the admission were paid ; and the rule will be the same, whether the 
 person paying the fine puts his own life in, as one of the lives, or 
 not.(^) And it is immaterial, whether there is a custom enabling 
 the first life to surrender the whole estate, or not. (A) 
 
 However, a custom in a manor that the person whose life is put 
 in, shall take beneficially, unless a trust is mentioned on the rolls of 
 the manor, is a good custom. And where a reversionary grant to a 
 nephew was taken of a copyhold in a manor, where this custom pre- 
 vailed, and no trust was declared in favor of the uncle, who paid 
 the fine, the nephew was held to be beneficially entitled.(i) 
 
 And in an old case, where the person, whose life was first put in, 
 was expressly stated in the copy of the admission to he the purchaser, 
 although the fine was actually paid by a third person, it was held, 
 r*Qm ^^^^ ^^® ^°® *mu8t be taken to have been paid as expressed 
 in the copy, and consequently that no trust could be en- 
 forced.(A;) 
 
 The doctrine now under consideration applies only to purchases ; 
 and if a person in' actual possession of property make an actual gift 
 or transfer of it to another, as a general rule the presumption of a 
 resulting trust will not arise. (Z) 
 
 A joint purchase by two or more persons, who advance the money 
 in equal proportions, and take a conveyance to themselves as joint- 
 tenants, is considered as a purchase by them jointly of the chance of 
 survivorship ; and in the absence of any controlling circumstances, the 
 survivor will take the whole estate in equity, as well as at law.(TO)' 
 
 (e) Wray v. Steel, 2 V. & B. 388; 2 Qi) Smith v. Baker, 1 Atk. 385; Wi- 
 
 Sugd. V. & P. 140, 9th ed.; and see thers «. Withers, Ambl. 151. 
 
 Riddle v. Emerson, 1 Vera. 108, and (i) Edwards v. Fidell, 3 Mad. 237. 
 
 Palmer v. Young, ib. 276. (A) Chalk v. Danvers, 1 Ch. Ca. 310. 
 
 (/) Withers v. Withers, Ambl. 151. Q) Vide post, Sect. 2, and Jefferys v. 
 
 (g-) Howe V. HowBj 1 Vern. 415; Jefferys, Cr. & Ph. 138 ; Currant u.Jago, 
 
 Withers v. Withers, Ambl. 151; Swift 1 Coll. N. C. C. 261. 
 
 V. Davis, 8 East. 354, n.; Prankerd v. (m) Mosse v. Gyles, 2 Vern. 385; 2 
 
 Prankerd, 1 S.& St. 1 ; Bengeru. Drew, Sugd. V. & P. 127, 9th ed. 
 IP. Wms. 781. 
 
 ' Survivorship as an incident to joint tenancy has been abolished in many of 
 the United States ; in others it can only exist where a joint tenancy is expressly 
 declared. See 4 Kent's Cora. 361. These statutory provisions do not apply 
 to the estates of express trustees. Parsons v. Boyd, 20 Alab. 112. 
 
OR PRESUMPTIVE TRUST. 129 
 
 However, joint-tenancy is not favored in equity, and the court will 
 take hold of any circumstances connected with the transaction, for 
 the purpose of preventing a survivorship, and in such cases will treat 
 the survivor as a trustee for the benefit of the estate of the deceased 
 party, to the extent of his share in the property. 
 
 Thus, if the proportions of the purchase money advanced by each 
 party are unequal, it has been held, that there will be no survivor- 
 ship in equity.(n) So if two or more persons take a joint mortgage 
 security for a sum of money advanced between them,(o)^ or if the 
 transaction be in the nature of a joint undertaking or partnershsip, 
 as in the case of a joint purchase of lands for the purpose of improve- 
 ment and cultivation •,{pY or of a building or farming lease taken by 
 several persons as joint tenants ;{q) in all these cases, although thie 
 estate will survive at law, a resulting trust will be raised in equity in 
 respect of the surviving shares, and will be enforced against the sur- 
 vivor in favor of the representatives of the deceased partner, (r) 
 
 However, an exception to this rule was introduced by the Ship- 
 Registry Acts.^ If A. purchased a ship in the name of B., and the 
 
 (n) Rigdeti v. Vallier, 2 Ves. sen. (p) Lake v. Craddock, 3 P. Wms. 
 
 258. [Brothers i;. Porter, 6 B. Monroe, 158. 
 
 106 : see Tompkins ■«. Mitchell, 2 Rand. (?) Jefferys v. Small, 1 Vem. 217; 
 
 429.] Hayes v. Kingdome, ib. 33; Lystei v. 
 
 (o) Petty u. Styward, 1 Ch. Ca. 31; DoUand, 1 Ves. jun. 431. 
 
 and 9 Ves. 597, n. (r) 2 Sugd. V. & P. 128, 9th ed.; 2 
 
 Stor. Eq. Jur. 120, 2 Mad. Ch. Pr. 142. 
 
 ' Randall D. Phillips, 3 Mason, 373; see Appleton v. Boyd, 7 Mass. 131. In 
 Randall ■«. Phillips, it was held under the Rhode Island statute, that there was no 
 survivorship at law. It has been held, however, differently in Massachtisettsand 
 Maine, Appleton v Boyd, ub sup., Kinsby v. Abbott, 20 Maine, 430 ; see Caines 
 ■y. Grant's lessee, 5 Binn. 119. 
 
 '^ Caines w. Grant, lessee, 5Binn.ll9; Duncan ■;;. Tower, 6 Binn. 193; Delaney 
 V. Hutoheson, 2 Rand. 183 ; McAllister v. Montgomery, 3 Heyw. Tenn. 94 ; Farley 
 V. Shippen, Wythe, 135, (2d ed. 254) ; Cuyler v. Brandt, 2 Ca. C. E. 326 ; Sigour- 
 ney v. Munn, 7 Conn. 11; Pugh v. Currie, 5 Alab. 446; see Overton u.Locy, 6 
 Monroe, 13.] 
 
 'There is another exception to the doctrine stated in the text of a resulting 
 trust in favor of a purchaser, who pays the money and takes the conveyance in 
 the name of a third person,, which results from a principle of public policy; and 
 that exception is, that courts of equity will never raise a resulting trust, where it 
 would contravene any statutable provisions of the state, or would assist the par- 
 ties in evading those provisions. Thus, if an alien, for the purpose of evading 
 any law prohibiting foreigners from holding real estate, should purchase land, 
 pay the money for it, and take the conveyance in the name of a third person, 
 without any written declaration of trust, there, a resulting trust could never be 
 raised, or enforced in chancery in favor of the alien purchaser, in fraud of the 
 rights of the state, or of the law of the land. (Leggett v. Dubois, 5 Paige, 114. 
 
 9 
 
130 TRUSTEES BY KBSULTINS 
 
 [*94] 
 
 sale waa registered in the name of B., B.'i title could not be dis- 
 lodged, (s) So, where a ship was purchased ■with partnership pro- 
 perty, but was registered *in the name of some only of the 
 partners, omitting the names of others, it was "held even 
 against a claim by creditors, that no resulting trust arose in favor of 
 the partners, whose names were omitted ; and this decision has been 
 followed by Lord Langdale, M. R., in a case subsequent to the re- 
 cent Registry Act of the 6th Geo. IV. c. llO.(i) , The law respecting 
 the registration of ships is now governed by the statute 3 & 4 "Will. 
 IV. c. 55 ; and the thirty-third section of that act, after enacting 
 that no greater number than thirty-two persons are to be registered 
 at one time as the legal owners of a ship, provides, that " nothing 
 therein contained shall affect the equitable title of minors, heirs, lega- 
 tees, creditors, or others, exceeding that number, duly represented 
 by, or holding from, any of the persons in the said number." 
 
 The wording of this section is singularly loose and ambiguous, and 
 it does not appear clearly, whether or not it was intended to apply 
 to an equitable interest of the nature now under consideration. The 
 point has not since arisen, but should it occur in future, it would 
 seem to be open to a party, who seeks to establish an equitable title 
 to a ship by virtue of a resulting trust of the nature above stated, 
 to contend that such was the intention of the legislature in passing 
 the statute. 
 
 However this may be, it is clear from the words made use of, that the 
 legislature at any rate recognised the possibility of the existence of 
 an equitable interest in a ship in contradistinction to the legal own- 
 ership as defined by the register. 
 
 With the exception above noticed, the doctrine (as between stran- 
 gers in blood) has been incontrovertibly established, that upon a con- 
 veyance of property, the legal estate shall be held in trust for the 
 party by whom- the purchase money is paid. For this purpose, the 
 
 • 
 (s) Ex parte Houghton, 17 Ves. 251; {t) Curtis ii. Perry, 6 Ves. 739; ex 
 2 Mad. Ch. Pr. 142. parte Yallop, 15 Ves. 60; Slater v. Wil- 
 
 lis, 1 Beav. 354. 
 
 [Phillips V. Cramond, 2 W. C. C. R. 44).] Quere, what would be the title of the 
 third person (to whom the conveyance had been made) if offered to a purchaser 
 with notice of his breach of faith with the alien ? What would be the remedy of the 
 alien al law against the third person, for the recovery of the consideration money 
 paid for his sole benefit (by operation of law) and with his knowledge and con- 
 sent. (T) [On a similar principle, a trust will not result in favor of a person who 
 has purchased an estate in the name of another, in order to give him a vote in 
 the election of a member of Parliament. Groves v. Groves, 3 Y. & J. 163; see 
 Philpotts?;. Philpotts, 10 C. B.85.] 
 
OR PRESUMPTIVE TRUST. 131 
 
 payment of the money must be clearly proved ;(m)^ and this may he 
 done by any evidence going directly to the fact of payment ; as by 
 the admission of the nominal purchaser •,{xf or by a statement in the 
 purchase deed ; or in the admission on the court rolls, -where the pro- 
 perty is copyhold. (2/) But the statement in the purchase deed, or 
 admission, as to the payment of the money, is not conclusive against 
 the nominee, although it will require strong evidence to rebut it.(2) 
 In every case the evidence adduced, must be such as goes distinctly 
 to the fact of payment. Loose and equivocal facts, such as posses- 
 sion of the property by the party, who is alleged to have advanced 
 the money, will not be sufficient.(a) However, it will be enough to 
 prove circumstances leading irresistibly to the conclusion, that the 
 money could not have been paid by the nominal purchaser : e. g., 
 such mean circumstances of the pretended owner, as render it impos- 
 sible for him to have been the purchaser. (6) But it is doubtful whether 
 mere parol evidence would be admissible under any circum- |--^Qr-| 
 *stances against the answer of the nominal purchasers, de- L ^ 
 nying the facts on which the trust is attempted to be established,(c) 
 although such evidence was admitted in an early case.(ci)^ 
 
 (u) Newlon v. Preston, Free. Ch. (1/) Benger ■«. Drew. 1 P. Wms. 780. 
 
 103 ; Gascoigne -o. Thwing, 1 Vern. 366 ; (z) lb. 
 
 Willis V. Willis, 2 Atk. 71 ; Groves v. (a) Groves v. Groves, 3 Y. & J. 179. 
 
 Groves. 3 You. &Jerv. 169. [Enosu. [See Hunter v. Marlboro, 2 Wood. 
 
 Hunter,4Gilm.211;Carey^.Callan,6B. & M. 168.] 
 
 Monroe, 44 ; Bottsford v. Barr, 2 J. C . R. (6) Per Lord Hardwicke in Willis v. 
 
 405 ; Hickey v. Young, 1 J. J. Marsh. 3 ; Willis, 2 Atk. 81 ; and see Eyall v. Ry- 
 
 Wright V. King, Harr. Ch. 12 ; see as to all, cited Ambl. 413. [See 18 Penn. St. 
 
 the evidence necessary, Hunten;. Marl- K. 283.] 
 
 boro, 2 Wood. & M. 168.] (c) Newton v. Preston, Prec. Ch. 
 
 (x) O'Hara v. O'Niel, 2 Eq. Ca. Abr. 103; Fordyce v. Willis, 3 Bro. C. C. 
 
 475 ; Cottington 11. Fletcher, 2 Atk. 155 ; 577 ; Bartlett v. Pickersgill, 1 Ed. 515 ; 
 
 2 Mad. Ch. Pr. 141, 3d ed. ; Ambrose 2 Sugd. V. & P. 135; but see Gascoigne 
 
 V. Ambrose, 1 P. Wms. 321. v. Thwing, 1 Vern. 366. 
 
 (d) 1 Vern. 366. 
 
 ' It is not necessary, however, that the funds should be those of the cestui que 
 trust; they may be supplied by a third person as a gift or loan, Gomez 1;. Trades- 
 man's Bank, 4 Sand. S. C. 106; Smith v. Sackett, 5 Gilm. 534; or even by the 
 nominal purchaser, on credit. Page v. Page, 8 N. H. 187; Runnells-u. Jackson, 
 1 How. Miss. 358. Where the money is payable by instalments, payment of 
 part is not sufficient. Conner v. Lewis, 16 Maine, 274. 
 
 ^Malin v. Malin, 1 Wend. 626; Pearce v. McKeehan, 3 Barr, 136; Harder?^. 
 Harder, 1 Sandf. Ch. 17 ; Lloyd v. Carter, 17 Penn. St. 216 ; Peabody v. Jarbel, 2 
 Cush. 232; see Smith v. Burnham, 3 Sumn. 438; and a fortiori by. his deposition, 
 Pinney v. Fellows, 15 Verm. 525. But a subsequent declaration that he pur- 
 chased for another, without any previous engagement or advance of money, is 
 not sufficient. Sidle v. Walter, 5 Watts, 389 ; Haines v. O'Conner, 10 Id. 313. 
 
 3 In the United States it has been held very generally that parol proof is ad- 
 missible in such case, notwithstanding the denial in the trustee's answer; but 
 the evidence must be very clear, and is to be received with great caution. Boyd 
 
132 TRUSTEES BY RESULTING 
 
 Where the consideration money is expressed in the purchase deed 
 to have been paid by the person in whose name the conveyance has 
 been taken, and nothing appears on the face of the deed to create a 
 presumption that the money in fact belonged to another, it has been 
 a subject of controversy, whether parol evidence is admissible after 
 the death of the nominal purchaser to prove a resulting trust. There 
 is no question but that such evidence is admissible in the lifetime of 
 the nominal purchaser.* 
 
 Mr. Sanders has maintained the negative of this proposition, on 
 the ground, that the admission of parol evidence in such cases would 
 be contrary to the Statute of Frauds ;(e) and he refers to several of 
 the older cases as authorities for this proposition :(/) and this opi- 
 nion has been adopted and even extended by another writer of con- 
 siderable authority. (^) 
 
 However, on the other hand, Mr. Maddox, in his Treatise on Chan- 
 cery Practice, expresses the inclination of his opinion to be, that 
 parol evidence may be admitted under such circumstances ;(A) and 
 Sir E. Sugden, in his work on Vendors and Purchasers, ably main- 
 tains the same side of the question, and asserts, that the statute is 
 not more broken in upon, by admitting parol proof after the death 
 of the nominal purchaser, than by allowing such proof in his life- 
 time.(«) In Chalk v. Danvers,(^) which has been already mentioned, 
 the first of three lives, put into a copyhold by S. W., was expressly 
 stated in the admission to he the purchaser, although the fine was 
 paid in fact by S. W., it was held, that the fine must be taken to 
 have been paid as expressed in the admission.{k) On the other hand, 
 in Sir John Peachy's case(Z) it was laid down generally by Sir Thos. 
 Clark, M. R. that if A. sold an estate to C, and the consideration 
 
 (e) See Mr. Sander's note to Lloyd Qi) 2 Mad. Ch. Pr. 14], 3d ed. 
 
 V. Spillett, 2 Atk. 150, and Sand. Uses, \_Acc. Harrisburg Bank -u. Tyler, 3 W. & 
 
 259, 260, 3d ed. S. 373 ; Freeman v. Kelley, 1 Hoff. Ch. 
 
 (/) Kirk V. Webb, P;-ec. Ch. 84 ; 90 ; Unitarian Soc. v. Woodbury, 14 
 
 Newton v. Preston, ib. 133 ; Gascoigne Maine, 281 ; Harden v. Harden, 2 Sand. 
 
 V. Thwing, 1 Vern. 366; Hooper •!). Ch. 17; 2 Green. Ch. 474.] 
 
 Eyles, 2 Vern. 480; Crop. v. Norton 2 (i) 2 Sugd. V. & P. 136, 9th ed. 
 
 Atk. 75; and see Chalk v. Danvers, 1 (4) Chalk v. Danvers, 1 Ch. Ca. 310. 
 
 Ch. Ca. 310. ■ Q.) Stated in Sugd. V. & P. 137. 
 
 (g-) Roberts on Stat, of Frauds, 99. 
 
 V. M'Lean, 1 J. C. R. 582 ; Botsford v. Burr, 2 J. C. R. 405 ; Buok v. Pike, 2 Fairf. 
 24; Baker u Vining, 30 Maine, 121; Page v. Page, 8 N. H. 187; Snellingi). 
 Uttefback, 1 Bibb. 609 ; Letcher v. Letcher, 4 J. J. Marsh. 590 ; Elliott v. Armstrong, 
 2 Blackf. 441 ; Blair v. Bass, 4 Blackf. 540 ; Larkins v. Rhodes, 5 Porter, 196. 
 As in other oases, to overthrow the denial of the answer, there must be two wit- 
 nesses at least, or one witness with corroborating circumstances; Blair v. Bass, 4 
 Blackf. 540 ; Page v. Page, 8 N. H. 187'; Ensley v. Ballentine, 4 Humph. 233. 
 ' Livermcre v. Aldrioh, 5 Gushing, 435 ; and cases there cited. 
 
OR PRESUMPTIVE TRUST. 133 
 
 was expressed to be paid by B., and the conveyance made to B., the 
 court would allow parol evidence to prove the money paid by C. 
 So in the case of Leach v. Leach, (m) where the plaintiff after the 
 death of her husband endeavored to establish a claim to a trust in an 
 estate, on the ground, that it had been purchased by her husband in 
 his lifetime with her trust money ; Sir Wm. Grant, M. R., observed, 
 that, as to the ground, that the purchase was made with the trust 
 money, all depended upon the proof of the fact, "for whatever 
 doubts might have been formerly entertained on this subject, it is 
 now settled, that money may in this manner be followed into the 
 land, in which it is invested ; and a claim of this sort may he sup- 
 ported hy parol evidence." (m) 
 
 *Upon the whole the preponderance of authority seems to r^cnj^-. 
 be in favor of the admissibility of parol evidence in support -' 
 
 of a resulting trust under such circumstances, as well after the death 
 of the nominal purchaser, as in his lifetime ; although the purchase 
 deed expressly state the money to be paid by the nominal purchaser. 
 
 However it is to be observed, that where the evidence is merely 
 parol, it will be received with great caution, and the court will look 
 anxiously for some corroborating circumstances in support of it:(n) 
 and in cases of this nature the claimant in opposition to the legal 
 title, should not delay the assertion of his right, as a stale claim 
 would meet with little attention. (o) 
 
 Resulting trusts of this nature are strictly confined to cases, where 
 the purchase has been made in the name of one person, and the con- 
 sideration paid by another. Therefore where a man employs another 
 by parol as his agent to buy an estate, and the latter buys it in his 
 own name, and no part of the purchase money is paid ly the prin- 
 cipal; there, if the agent deny the trust, and there is no written 
 evidence of its existence, it cannot be enforced against him ; for that 
 would be in the teeth of the Statute of Frauds.(p)^ 
 
 So where the owner of an estate conveys it to another absolutely 
 
 (m) Leach v. Leach, 10 Ves. 517. ford'W. Wade, 17Ves. 97. [Robertson ii. 
 
 (n) 2. Sugd. V. & P. 138, 9lh ed.; and Maclin, 3 Heyw. 70 ; Peebles u Read- 
 see Sir William Grant's observations ing, 8 S & R. 484.] 
 in Leach v. Leach, 10 Ves. 517, 8. (_p) Rastal v. Hutchinson, 1 Dick. 
 [Carey v. Callan, 6 B. Monroe, 44.] 44; O'Hara v. O'Niel, 2 Br. P. C. 39; 
 
 (o) Delanei). Delane, 7 Bro. P. C. Bartlett i). Pickersgill, 4 Burr. 22, 5; 1 
 
 279; 2 Sugd. V. & P. 186; Bonney v. Cox, 15; S. C. 4 East, 577, n.; 2 Sugd. 
 
 Ridgard, cited 4 Bro. C. C. 138; Beck- V. & P. 139; 2 Story, Eq. Jur. § 1201. 
 
 ' See Jackman v. Kigland, 4 W. & S. 149 ; Walker v. Brungard, 13 Sra. & M. 
 765; Pinnock v. Clough, 16 Verm. 507; Blair «. Bass 4 Blackf. 540; Peebles u. 
 Reading, 8 S. &. R. 492; Moore v. Green, 3 B. Monr. 407; Fowke v. Slaughter, 
 3 A. K. Marsh. 57 ; Taliaferro v. Talidferro, 6 Alab. 406 ; Flagg v. Mann, 2 
 Sumn. 546; Dorsey v. Clarke, 4 H. & J. 551 ; see however, Howell v. Baker, 4 
 J. C. R. 120. 
 
134 TRUSTEES BY KESULTINS 
 
 as a purchaser for a valuable consideration, which however is not 
 paid, but no case of fraud or mistake is made ; the seller cannot by 
 parol evidence alone establish a trust for himself; and no resulting 
 trust arises on such a transaction ; but he will have a lien on the estate 
 for the purchase money.(g') 
 
 As the resulting trust in these cases is a mere matter of equitable 
 presumption, it may be rebutted by other circumstances, which nega- 
 tive that presumption. And for this purpose parol proof is admissi- 
 ble,(r)' for resulting trusts are left unaffected by the Statute of 
 Frauds, and before that statute a bare declaration by parol would 
 prevent any resulting trust.(s) Moreover the evidence in such a 
 case would be in support of the legal title. 
 
 Therefore in case it can be satisfactorily shown, either by parol or 
 other evidence, that it was the intention of the party, from whom 
 the consideration proceeded, that the person, to whom the conveyance 
 is made, should take beneficially, he will be entitled to the estate. (() 
 And according to the nature of the evidence the presumption in 
 favor of the party, paying the consideration money, may be rebutted 
 as to part of the estate, and prevail as to the remainder, (m) 
 
 However in these cases the burden of proof rests upon the volun- 
 teer to *show, that the party, from whom the consideration 
 L -■ moved, did not mean the purchase to be a trust for himself 
 but a gift to the stranger, (a;) 
 
 It is to be observed, that resulting trusts of this description must 
 attach, if at all, by virtue of the circumstances of the transaction 
 itself: they cannot be raised from subsequent matter arising ex post 
 facto.iyf In a case where a lease of a colliery had been granted to 
 
 (g) Leman v. Whitley, 4 Russ. 423. (s) Bellasis v. Compton, 2 Vern. 294, 
 
 [Story Eq. §902; Pinnock-y. Clough, 16 {V) Maddison i). Andrew, 1 Ves. 58: 
 
 Verm. 508 ; Eathbun v. Rathbun, 6 Barb. Benbow v. Townsend, 1 M. & K. 506. 
 
 S. C. 107; Bogert v. Perry, 17 John. (m) Lane v. Dighton, Arabl. 409 
 
 351.] Benbow v. Townsend, 1 M. & K. 510, 
 
 (r) Rider 1). Kidder, 10 Ves. 364; 2 [Pinney i;. Fellows, 15 Verm. 525.] 
 
 Sugd. 138; Benbow v. Townsend, 1 {x) 2 Sugd. V. & P. 139, 9th ed 
 
 M. & K. 508 ; Taylor v. Taylor, 1 Atk. Dudleys. Bosworth, 10 Hump. 12.] 
 
 386. (y) 2 Sugd. V. &P. 131. 
 
 'Botsford V. Burr, 2 J. C. R. 405; Page v. Page, 8 N. H. 189; Baker v. Vin- 
 ing, 30 Maine, 126; Steere v. Steere, 5 J. C. R. 18; Jackson v. Feller, 2 Wend. 
 465; White v. Carpenter, 2 Paige, 217; McGorven v. McGorven, 4 Desaus. 
 487; Elliott v. Armstrong, 2 Blackf. 199; Sewell v. Baxter, 2 Johns. Maryl. 
 448. 
 
 ^ In order to establish a resulting trust the money must have been paid before 
 the time of the purchase by the alleged cis,t\i.i que trust, either with his own or 
 borrowed funds. Freeman v. Kelley, 1 Hoff. Ch. 90; Foster v. Trustees, 4 Alab. 
 302; Forsyth v: Clark, 3 Wend. 637 ; Botsford v. Burr, 2 J. C. R. 405; Magee v. 
 Magee, 1 Barr, 405;. Steere v. Steere, 5 J. C. R. 1; Wright v. King, Hariing. 
 Ch. 12; Bernard v. Bougard, Harr. Ch. 130; Rogers v. Murr^, 3 Paige, C. R. 
 390; Mahorneri). Harrison, 13 Sm. & M. 53; Graves v. Dugan, 6 Dana, 331; 
 
 / 
 
OB PRESUMPTIVE TRUST. 135 
 
 the defendant, in trust, as was asserted by the plaintiff, for the 
 plaintiff and defendant jointly by virtue of a parol agreement be- 
 tween them ; and no fine or other consideration was paid at the 
 time for the grant of the lease, but a moiety of the rent had subse- 
 quently been paid by the plaintiff to the lessor ; it was argued on 
 behalf of the defendant, that from this payment, being matter ex 
 post facto, no resulting trust could be construed to arise in favor of 
 the plaintiff. The case however went on another point, and the 
 court does not appear to have given any opinion on this question. (z) 
 
 The rule respecting resulting trusts of this nature is not of uni- 
 versal application. If the person in whose n^^me the conveyance of 
 property is taken, be one for whom the party, paying the purchase 
 money, is under a natural or moral obligation to provide, no equi- 
 table presumption or trust arises from the fact of the payment of 
 the money; but on the contrary the transaction will be regarded 
 prima facie as an advancement for the benefit of the nominee. In 
 that case, therefore, it will be for the party who seeks to establish a 
 trust on behalf of the payer of the purchase money, to displace by 
 sufficient evidence the presumption that exists in favor of the legal 
 title. («) 
 
 In this respect the law of trusts agrees with the law of uses, as it 
 existed before the statute of Hen. VIII. "For a feoffment to a 
 stranger before that statute without consideration raised a use to 
 the feoffor ; but a feoffment by a father to his son without other 
 consideration raised no use by implication to the father ; for the 
 consideration of blood settled the use in the son, and made it an 
 advancement."(5) 
 
 Therefore where a purchase of real or personal property is made, 
 or a security taken by parent(l) in the name of a "child,"(e) or 
 
 (2) Riddle v. Emerson, 1 Vern. 108. Dyer v. Dyer, 2 Cox, 92; Grey v Grey, 
 
 (a) Murlessi;. Franklin, 1 Swanst. 17. 2Swanst. 594; Sidmouth t). Sidmouth, 
 
 (6) Grey v. Grey, 2 Swanst. 598. 2 Beav. 447; Skeats v. Skeats, 2 N. C. 
 
 (c) Mumma v. Mumraa, 2 Vern. 19; C. 9. 
 
 (1) All the cases, that have arisen, appear to have been purchases by a ''father;" 
 it may be a question, whether the same rules would apply to the case of a simi- 
 lar purchase by a "mother." In Lloyd v. Read, 1 P. Wms. 607, the purchaser 
 was a grandmother, but no attention seems to have been paid to that fact. 
 
 Page V. Page, 8 N. H. 187; Conner v. Lewis, 16 Maine, 260 ; Pinnock v. Clough, 
 16 Verm. 501; Haines v. O'Conner, 10 Watts, 313. On a contract for convey- 
 ance of land on payment of certain sums at specified times, a resulting trust is 
 not created by payment of part of the money. Conner v. Lewis, 16 Maine, 274; 
 but in Harder v. Harder, 2 Sandf. Ch. 17, A. had bought a farm in 1800, which 
 was conveyed to him in fee, he giving a mortgage for the purchase money. He 
 resided on it until his death, in 1835; but it was paid for out of the labor and 
 earnings of his four younger sons. The Vice Chancellor decreed a resulting 
 trust in favor of the latter. 
 
136 TRUSTEES BT RESULTING 
 
 several " children ;"(<?) the transaction will be looked upon as an 
 advancement for the child, and not a trust for the parent : unless it 
 can be shown to have been the intention of the parent that the child 
 should not take beneficially.' 
 
 The rule is the same where the purchaser has placed himself in 
 loco parentis to the nominee, (e) And the fact of the child or chil- 
 dren being " illegitimate" makes no difference in this respect, "if 
 r*QQi there have *been a recognition and filial treatment" on the 
 part of the purchaser towards the child.(/) 
 
 A distinction seems to have been taken by Lord Chief Baron Gil- 
 bert between a purchaser of real estate in the name of a son, and of 
 a "daughter;" on the ground, that though sons are often provided 
 for by settlement of lands, yet daughters seldom are, and therefore 
 the presumption is not so strong. (^) This distinction however 
 does not appear to be borne out by the authorities, and it seems 
 that daughters must be considered on the same footing as sons with 
 regard to the application of the doctrine in question. (A) 
 
 If the father be dead, the same rule prevails in the case of a pur- 
 chase by a grandfather in the name of his "grancbild;" for on the 
 death of the father, the grandfather stands in loco parentis to the 
 granchild.(«) In a subsequent case the distinction depending on the 
 death of the father, does not seem to nave been attended to.(^) And 
 in the recent case of Kilpin v. Kilpin,(Z) which came before Sir John 
 Leach, M. K,., and subsequently on appeal before Lord Brougham, 
 C., there was a transfer of stock by an individual into the joint 
 names of his natural daughter and her husband, and their children ; 
 
 {d) Finch?>. Finch, 15Ves. 43; Mur- cited 3 Cro. 550; and Bedwell v. 
 
 less u. Franklin, 1 Sw. 13. Frome, cited 2 Cox, 97; Back v. An- 
 
 (e) Ebrand v. Dancer, 2, Ch. Ca. 26 ; drew, 2 Vern. 120. 
 Currant v. Jago, 1 Coll. N. C. C. 261. (i) Ebrand v. Dancer, 2 Ch. Ca. 26; 
 
 (/) Beckford v. Beckford, Loft. 490; S. C. 1 Coll. N. C. C. 265, n. 
 Kilpin V. Kilpin, 1 M. & K. 536, 542. {k) Lloyd v. Read, 1 P. Wms. 608. 
 [See Anon. Wallace, jr. 107 ; and note.] Q) Kilpin •;;. Kilpin, 1 M. & K. 520 ; 
 
 (g-) Gilb. Lex. Prffit. see Currant v. Jago, 1 Coll. N. C. C. 
 
 (fe) 2 Mad. Ch. Pr. 145; 2 Sugd. V. 261, 265. 
 
 6 P. 148 ; see Lady George's case, 
 
 ' A purchase by a father in the name of a son is prima, facie an advancement. 
 Page V. Page, 8 N. H. 86; Partridge v. Havens, 10 Paige, 618; Stanley v. Bran- 
 non, 6Blackf. 194; Knouff r. Thompson, 16 Penn.'St. 357; Dennison «. Goehring, 
 
 7 Barr. 182, note; Taylor v. James, 4 Desaus. 6 ; Bodine t). 'Edwards, 10 Paige, 
 C. 504; Fleming v. Donahoe, 5 Ohio, 255; Astreen v. Flanagan, 3 Edw. Ch. 
 279; Taylor v. Taylor, 4 Gilm. 303; Tremper v. Barton, 15 Ohio, 418; Stanley 
 Brannon, 6 Blackf. 193; Thompson v. Thompson, 1 Yerg. 97; Dudley «. Bos- 
 worth, 10 Hump. 12; Jackson v. Matsdorf, 11 John. R. 91. In Baker v. Vining, 
 30 Maine, 121, a deed was taken in the name of a son, he and his father ad- 
 vancing the money, but the proportion which each paid was uncertain, and the 
 Court refused to establish a resulting trust. 
 
OR PRESUMPTIVE TRUST. 137 
 
 and though the point did not call for decision, the case of the grand- 
 children was treated throughout as being on the same footing with 
 respect to advancement as that of children, without reference to the 
 death of their father.(Z) 
 
 This doctrine of advancement obtains equally in the case of a pur- 
 chase by a husband in the name of his "wife,"(w2) and the rule is 
 the same, where the names of children are joined in the conveyance 
 with that of the wife.(M) 
 
 However, the relationship between brothers is not of such a charac- 
 ter, as to raise the presumption, that a purchase by one brother in 
 the name of another was intended as an advancement, and not a 
 trust for the benefit of the purchaser. Therefore where a testator 
 inserted his brother's name in the renewal of a lease, for which he 
 alone paid the fine and rent, there (would clearly have been a result- 
 ing trust for the testator, had not the brother produced evidence to 
 show, that it was the testator's intention, that he should take bene- 
 ficially.(o) And this case has been recently followed by a similar 
 decision, where a mortgage security had been taken by one brother 
 in the name of another.(^) 
 
 Again, where the nominee stands in the relation of "mother" or 
 "nephew" to the real purchaser, no presumption will arise from 
 such relationship of any intention that those parties should take 
 beneficially, unless indeed the purchaser has placed himself in loco 
 
 parentis to the *nominee •,{q) but the general rule will pre- 
 
 [*99] 
 
 vail, and they will prima facie hold as trustees for the pur- 
 chaser, (r) 
 
 It appears to be still an unsettled question, whether the rule in 
 favor of the advancement of the child shall prevail, where the con- 
 veyance is taken by the father in his own name and that of the child 
 jointly.^ 
 
 {I) Kilpin V. Kilpin, 1 M. & K. 520 ; 58. [So of sisters, Kenton v. Cobb, 1 
 
 see Currant v. Jago, 1 Coll. N. C. C. Dev. Ch. 439; see Fields v. Lonsdale, 
 
 261, 265. 14 Jur. 996. 13 Beav. 78.] 
 
 (m) Glaister v. Hewer, 8 Ves. 199, {p) Benbow v Townshend, M. & 
 
 and 9 Ves. 12; Benger v. Drew, 1 P. K. 506; and see Skeats v. Skeats, 2 N. 
 
 Wms. 780. [Astreen v. Flanagan, 3 C. C. 9. 
 
 Edw. Ch. 279; Guthrie v. Gardner, 19 (g) See Currant v. Jago, 1 Coll. N. C. 
 
 Wend. 414; Jencks «. Alexander, 11 C.263. [See Jackson u. Feller, 2 Wend. 
 
 Paige, 619.] 465, case of a nephew.] 
 
 (n) Kingdon v. Bridges, 2 Vern. 67; (r) Lamplugh, v. Lamplugh, 1 P. 
 
 Back V. Andrew, ib. 120; Dumraer u. Wms. ill: Taylor v. Alston, 2 Cox, 
 
 Pitcher, 5 Sim. 35; and S. C. 2 M. & 97; cited Edwards v. Fidel, 3 Mad. 
 
 K. 262, 272. 237. 
 
 (o) Maddison v. Andrew, 1 Ves. sen. 
 
 ' Where a father paid the purchase money for land and had the bond for title 
 made to himself and his son jointly, it was held in Tennessee to be an equitable 
 
138 tkusteeS by eesulting 
 
 In the case of Scroope v. Scroope(s), this point was decided in 
 favor of the child ; but there the circumstances of the son not being 
 provided for seems to have been considered material. (s) 
 
 In a subsequent case, v^here a copyhold had been purchased, and 
 the surrender taken to the purchaser and his wife and daughter and 
 their heirs ; and the purchaser afterwards mortgaged the whole es- 
 tate and died : the purchase was considered an advancement for the 
 benefit of the wife and daughter, and a bill filed by the mortgagee 
 to obtain the benefit of his security, was accordingly dismissed. (</) 
 
 And in the case of Grey v. Grey (A), the Lord Chancellor said, 
 " If a father makes his son a joint purchaser with him, and receives 
 all the profits, and disposes of the rents, this is no evidence of a 
 trust ; but the son takes the whole by advancement, if he survives." 
 And in that case a purchase by a father in the joint names of him- 
 self and his son was even treated as a stronger case in favor of an 
 advancement, than a purchase in the son's name alone, where the 
 father entered into possession and exercised acts of ownership over 
 the estate. (A) 
 
 But a purchase by a father in the names of himself and his son 
 as joint- tenants was afterwards considered, not to be so strong a 
 case for an advancement. In the case of Pole v. Pole(i), Lord 
 Hardwicke observed, " No doubt where a father takes an estate in 
 the name of his son, it is to be considered an advancement. So if 
 the estate be taken jointly, so as the son may be entitled by survi- 
 vorship, that is weaker than the former case, and still depends on 
 the circumstances." In that case his lordship decided against the 
 claim of advancement, but mainly on the ground of the son having 
 been previously provided ioT.{i) 
 
 On another occasion(^), where a father purchased an estate in the 
 joint names of himself and his son, and had no other estate, to 
 which a judgment creditor could resort, the creditor was relieved in 
 equity against the survivorship at law ; the settlement being con- 
 sidered as voluntary and fraudulent against creditors. In his judg- 
 ment in that ra,se Lord Hardwicke says, " Here the purchase is in 
 the names of the father and son, as joint-tenants. Now this does 
 not answer the purpose of an advancement, for it entitles the father 
 to the possession of the whole till a division, and to a moiety abso- 
 
 (s) Scroope v. Scroope, 1 Ch. Ca. 27. (i) Pole v. Pole, 1 Ves. sen. 76. 
 
 (§■) Back V. Andrew, 2 Vern. 120; (A) Stileman v. Ashdown, 2Atk.477, 
 
 Prec. Ch. 1. 480. 
 (A) Grey v. Grey, 2 Swan St. 599. 
 
 advancement to the son of a moiety; and that the father having subsequently 
 procured the deed to be made to himself, became thereby a trustee for the son 
 for the moiety. Thompson v. Thompson, 1 Yerg. 97. 
 
OR PKESUMPTIVE TRUST. 139 
 
 lutely even after a division, besides the father's taking a chance 
 to himself of being a survivor of the other moiety: nay if th^ 
 son had died during his minority, the father would have been 
 entitled to the whole by survivorship, and the son could not have 
 prevented it by severance, he being an infant."(A;) 
 
 ^With reference to the distinction, thus attempted to be ^^^ . .^ 
 introduced, Sir E. Sugden observes, " There does not appear ■- ^ 
 to be much weight in the reasons above stated. It is evident that a 
 moiety of some estates may be a much better provision than the en- 
 tirety of others. The chance of survivorship, which the father takes, is 
 an incident to the tenancy, and extends equally to the son, who, after 
 he attains his majority, may sever the joint-tenancy. If he die during 
 his minority, it is as well that the estate should survive to the father, 
 who paid the purchase money, and perhaps took the conveyance to 
 himself and son as joint-tenants, with the express view of advan- 
 cing him only in the event of his attaining that age, at which the 
 law considers a man capable of managing his fortune. During the 
 son's minority, and the life of his father, upon whom should he be 
 dependent if not upon his own parent ? If the father die during 
 the son's minority, the estate will survive to him ; so that, perhaps 
 it is impossible to contend with success, that a purchase by a parent 
 in the name of himself and child as joint-tenants, is not so strong a 
 'case for an advancement as a purchase in the name of a child solely. 
 Fraud is of course an exception to every rule."(Z) 
 
 It may be remarked that although the observations of Lord Hard- 
 wicke, in Stileman v Ashdown, certainly tend to create a doubt, 
 whether a purchase in the joint names of a father and son ought to 
 be considered an advancement ; yet all that case decided was, that 
 under the circumstances the transaction was fraudulent and void 
 against creditors : therefore the previous cases of Scroope v. Scroope 
 and Back v. Andrew must still be considered as authorities on the 
 general question in favor of the advancement. 
 
 At all events it would seem that this distinction is not applicable, 
 where the conveyance is taken to the father and son as " tenants in 
 common :" although this latter case does not appear to have any- 
 where arisen in practice. 
 
 Where by the custom of a manor, copyholds are granted for lives 
 successive, it was once held, that if the father pay the fine, a grant 
 to him and his children, or his children only, as his nominees, should 
 not be an advancement for them, but a trust for the father.(7w) And 
 Sir E. Sugden observes, " that there seems some ground to support 
 
 (*) Stileman v. Ashdown, 2 Atk. (m) Dickinson v. Shaw, cited in Dyer 
 477, 480. V. Dyer, 2 Cox, 95, 6, and stated in 1 
 
 (0 2 Sugd. V. & P. 145, 9th ed. Watk. Cop. 222. 
 
140 TRUSTEES BY RESULTING 
 
 this distinction ; because the father could not have taken the whole 
 estate in his own name."(w) 
 
 This decision however has been overruled, and it is now settled, 
 that upon such a purchase, where the children are named to take in 
 succession after their father, according to the general rule this will 
 be, not a trust for the father, but an advancement for the children, 
 who will take suceessivS after the father's death in the order men- 
 tioned in the grant, (o) 
 
 For this purpose it is immaterial, that the estate given to the chil- 
 dren is reversionary to take effect in succession upon the death of a 
 stranger, and not of the father himself ;(p) and d fortiori this rule 
 will prevail in *favor of the children, where the grant is 
 •- -'to them immediately without the interposition of the life 
 of the father, or any other life.(g') 
 
 In the case of a "wife," it is clear that the presumption in favor 
 of an advancement arises equally, whether the purchase be made by 
 a husband in the joint names of himself and his wife, or in her name 
 solely. In the former case a joint-tenancy is created, and the wife, 
 if she survive her husband, will tiake the whole estate by survivor- 
 ship. (r) However some stress seems to have been laid upon the 
 fact, that a wife cannot be a trustee for her husband. 
 
 In like manner, where a man purchased a copyhold, and took the 
 surrender to himself and his wife and JSlizabeth his daughter and 
 their heirs. It was held, that the husband and wife as one person 
 took one moiety by entireties, and the daughter the other moiety ; 
 and the court after the husband's death refused to give effect to an 
 incumbrance created by him, as to any part of the estate against the 
 title of the wife and daughter.(s) 
 
 The general rule respecting an advancement will not be affected 
 by the fact, of the purchase being made in the name of a stranger 
 jointly with that of the wife or child ; but in such a case the legal 
 estate, thus vested in the stranger, will be held by him as a trustee 
 for the party, for whose advancement the purchase was made.(<) But 
 if the child, in whose name a purchase is made jointly with that of 
 
 (n) 2 Sugd. V. & P. 141. 1 ; Christ's Hospital v. Budgin, 2 Vera. 
 
 (o) Dyer v. Dyer, 2 Cox. 92 ; Murless 683 ; Dummer v. Pitcher, 5 Sim. 35, 
 
 V. Franklin, 1 Swanst. 13, 18 ; Skeafsu. and 2 M. & K. 262 ; Benger v. Drew, 1 
 
 Skeats, 2 N. C. C. 9. P. Wras. 780. 
 
 (p) Finch V. Finch, 15 Ves. 51 ; Mur- («j Back v. Andrew, 2 Vern. 120 ; S. 
 
 less V. Franklin, 1 Sw. 13 ; Skeats v. C. 1 Pre. Ch. 1. 
 
 Skeats, 2 N. C. C. 9. (f) Benger v. Drew, 1 P. Wms. 780; 
 
 (g) Murless v. Franklin, 1 Sw. 13 ; 2 Lamplugh v. Lamplugh, 1 P. Wms. 
 
 Sugd. V. & P. 141. Ill ; Crabb v. Crabb, 1 M. & K. 511, 
 
 (r) Kingdom v. Bridges, 2 Vern. 67 ; 518 ; Kilpin v. Kilpin, ib. 542. 
 Back V. Andrew, ib. 120, and Pre. Ch. 
 
OR PRESUMPTIVE TRUST. 141 
 
 the trustee, be of tender years, and do not live to enjoy the estates, 
 it seems that the trustee would hold in trust for the father.(M) And 
 where a purchase was made by a husband, and the conveyance taken 
 to himself and his wife and a stranger for their liv«8, and the life of 
 the longest liver of them ; it was held after the death of the hus- 
 band, that the stranger was a trustee for the wife during her life, and 
 after her death, in case he survived her for the executors of the hus- 
 band.{x) However it might be questionable, whether these last two 
 decisions would now be followed. 
 
 It seems that if a father and another person make a purchase 
 jointly in the name of the child of one of them, that will not be 
 an advancement for the child ; for the presumption, which arises 
 from the act of the father alone, will not naturally .arise from a joint 
 payment.(2/) 
 
 From what has gone before, it is clear, that a purchase of this 
 nature in the name of a wife or child will be established as an ad- 
 vancement in favor of the nominee in opposition to any claim of the 
 purchaser himself or his representatives, or of any volunteer deriv- 
 ing under him. However it is not quite so accurately ascertained, 
 to what extent the title of the wife or child will be suffered to pre- 
 vail against the creditors of the husband or father.* 
 
 In the case of Christ's Hospital v. Budgin(s) it was said by the 
 Lord Keeper, that such a purchase might be fraudulent against cre- 
 ditors, (a) *And on one occasion, where the only property r^-irvon 
 available for judgment creditors, had been purchased by ^ J 
 the debtor in the joint names of himself and his son, Lord Hard- 
 
 (ti) Lamplugh v. Lamplugh, 1 P. (j/) Per Lord Eldon, in Finch u Finch, 
 Wins. 112. 15Ves. 51. 
 
 {x) Kingdom v Bridges, 2 Vern. 67. (z) Christ's Hospital v. Budgin, 2 
 
 Vern. 684. 
 
 ' A purchase by one indebted, in the name of a child or wife, for the purpose 
 of defrauding creditors, creates a resulting trust in him, so far as to subject it in 
 equity to the claims of his creditors. Guthrie v. Gardner, 19 Wend. 414 j Doyle 
 V. Sleeper, 1 Dana, 531 ; Newell u. Morgan, 2 Harr. Del. 225; Deraaree v. Dris- 
 kill, 3 Black. 115; Bell v. Hallenbach, Wright, 751; Edgington v. Williams, Id. 
 439 ; Parrish v. Rhodes, id. 339 ; Cutter v. Griswold, Walker Ch. 437 ; Croft v. Ar- 
 thur, 3 Desaus. 223; Jencks v. Alexander, 11 Paige, 619 ; Watson v. Le Row, 6 
 Barb. S. C. 487; Elliott ?;. Hart; Abney v. Kingsland, 10 Alab. 355; Rucker v. Abell, 
 8 B. Monroe, 566 ; Kimmell v. McRight, 2 Barr. 38 ; and in Pennsylvania the land 
 may be levied on in the hands of the trustee. Kimmel v. McRight. At law, 
 however, such a conveyance is not within the 13th Eliz., Crozier v. Young, 3 
 Monr. 158 ; Gowing v. Rich, 1 Ired. Rep. 553. If the parent be not indebted at 
 the time, subsequent insolvency will not affect the grantees tide. Dillard v. Dil- 
 lard, 3 Humph. 41 ; Knouff v. Thompson, 4 Harris (Penna.), 357. In New York, 
 though resulting trusts have been abolished, an exception is made in favor of 
 the creditors of the party paying the money, ante, p. 91. 
 
142 TRUSTEES BY EEStJLTINfl 
 
 wicke considered the transaction to be fraudulent as against the 
 creditors, and relieved against the son's claim to the estate by survi- 
 vorship.(a) 
 
 These decisions would seem to place a purchase of this nature upon 
 the same footing, as a settlement of property actually vested in the 
 settlor, and therefore coming ■within the statute 13 Eliz, c. 5, against 
 fraudulent conveyances. But even in that case, from the analogy of 
 the decisions upon that statute, the transaction could not be im- 
 peached, unless it be proved, that the purchaser at the time of the 
 purchase and conveyance was indebted, if not to the extent of in- 
 solvency, at any rate to so large an amount, as to show that the ob- 
 ject of the transaction was to defeat or to delay his creditors.(6) 
 
 However Sir E. Sugden states it to be the better opinion, that 
 such a purchase is not within the statute of 13 Eliz. ; for, as the 
 purchaser may give the money to the object of his bounty to pur- 
 chase the estate for himself, he may by the same reason direct a 
 conveyance to be made to him.((;) 
 
 It seems, that a purchase of real estate in the name of a child 
 solely, or jointly with the father's name, is not within the statute 
 27 Eliz. c. 4 ;[d) and that statute does not apply to personal pro- 
 perty ;(e) consequently a subsequent purchaser, although bona fide, 
 from the father will not be relieved against an advancement of this 
 description. ((i) 
 
 If such a purchase were made by a person, not being at the time 
 a trader, or owing debts ; the advancement would be good against 
 the creditors, although the purchaser afterwards^ engaged in trade, 
 and became bankrupt.(/) 
 
 But a transaction of this nature came expressly within the statute 
 of 21st Jas. I. c. 15, s. 5 : and if the purchaser were a trader at the 
 time of the purchase, his being then solvent would not have protected 
 it against the claims of his creditors, in case of his subsequent bank- 
 ruptcy.(^) 
 
 The law however in this respect was partially altered by the 6 Geo. 
 IV. c. 16, s. 73, which only gives the creditors the benefit of the 
 purchase, where the bankrupt is insolvent at the time of making it.(A) 
 
 Sums voluntarily expended by a husband for the benefit of his 
 
 (a) Stileman v. Ashdown, 2 Atk. 477, George's case, stated 3 Cro. 550. [Staa- 
 
 8) ; and see Reddington^. Reddington, ley v. Brannon, 6 Blackf. 193.] 
 
 3 Ridg. P. C. 176. (e) Jones v. Croucher, 5 Mad. 315; 
 
 (6) Lush. V. Wilkinson, 5 Ves. 384; Bill v. Cureton, 2 M. & K. 512. 
 
 Richardson v. Sraallwood, Jac. 552; (/) Lillys. Osborn, 3 P. Wms. 298. 
 
 Townshend v. Westacott, 2 Beav. 340. \g) Fryer v. Flood, 1 Bro. C. C. 160; 
 
 (c) 2 Sugd. V. & P. 147 ; Fletcher v. Glaister v. Hewer, 8 Ves. 195; and see 
 Sidley, 2 Vern. 490; 2 Fonbl. Eq. Ch. Walkers. Burrows, 1 Atk. 93. 
 
 5, B. 2, n.{d). {h) 2 Sugd. V. & P. 146. 
 
 (d) 2 Sugd. V. & P. 146, citing Lady 
 
OR PRESUMPTIVE TRUST. 148 
 
 ■wife's estate, for instance in the redemption of the land tax, the en- 
 franchisement of copyholds, or in building on her estate, will not 
 create a trust for the benefit of his creditors within the principle now 
 under consideration, although he was insolvent at the time. Such 
 sums cannot therefore be recovered by them from her estate. (i) 
 
 *As the presumption in favor of the advancement of the p^i^q-r 
 child or wife in these cases proceeds only upon the supposed ^ 
 intention of the purchaser, it may be rebutted by evidence mani- 
 festing an intention on his part, that the nominee should take as 
 trustee.(/cy It now remains for us to consider, what will be sufficient 
 evidence for this purpose. 
 
 It is clear, that the fact of the nominee being the child, &c., ope- 
 rates merely as a circumstance of evidence, to rebut the resulting 
 trust, that would otherwise arise in favor of the purchaser, who pays 
 the money. Lord Chief Baron Byre, who goes fully into the point 
 in his judgment in the case of Dyer v. Dyer,(Z) says, " that it would 
 be disturbing land-marks, to suffer that proposition to be called in 
 question ;" and as the same learned judge goes on to say, " consider- 
 ing it as a circumstance of evidence, there must be of course evidence 
 admitted on the other side."(Z) 
 
 Written declarations made at any time by the nominee, or made 
 by the purchaser himself, in contemplation of, or contemporaneously 
 with the purchase, obviously constitute the best, and most complete 
 evidence to prove the trust ; and where such proofs exist, no question 
 can arise on the point.(m) Similar declarations by parol have been 
 admitted for this purpose.(w) However it has been said that parol 
 evidence is improper against the legal operation of a deed :(o) and 
 where such declarations are conflicting and inconsistent the court 
 will not act upon them.(p) 
 
 There is no doubt, but that parol evidence is good in support of 
 the claim of the nominee in such cases : for it concurs with the legal 
 
 (i) Campion v. Cotton, 17 Ves. 263. Kilpin v. Kilpin, 1 M. & K. 520 ; Sid- 
 
 (4) Sidmonth i;. Sidmouth, ,2 Beav. mouth d. Sidniouth, 2 Beav. 455 ; Soa- 
 
 454., [Dudley v. Bosworth, 10 Humph, winv. Soawin, 1 N. C. C. 65. 
 
 13 ; Jackson tJ.Matsdorfif, 11 John. 91.] (o) Taylor v. Taylor, 1 Atk. 386; 
 
 (Z) Dyer I). Dyer, 2 Cox, 93,4; 1 P. Lamplugh v. Lamplugh, 1 P. Wms. 
 
 Wms. 1 12, S. C. HI; Reddington v. Reddington, 3 Ridg. 
 
 (m) Grey v. Grey, 2 Sw. 600. P. C. 182. 
 
 (n) Grey «. Grey, 2 Swanst. 594-6; (p) Grey u. Grey^ 2 Sw. 597. 
 
 ' In Dudley ij. Bosworth, 10 Humph. 12, where on a purchase in the name of the 
 son it appeared that the object of the conveyance was to guard against the im- 
 improvidence of the father, who moreover, was utterly unable to make any 
 provision for his other children, and had always remained in possession of the 
 land, it was held the presumption of an advancement was rebutted. See also 
 Taylor-y. Taylor, 4 Gilm. 303; Tremperu. Barton, 18 Ohio, 418. Subsequent de- 
 clarations of the father are not, however, sufficient. Tremper v. Burton, vh swgr. 
 
144 TRUSTEES BT RESULTINS 
 
 title, (j) But where a trust of some shares, purchased by a father in 
 his son's name, had been clearly proved by the parol admission of 
 the son. Sir K. Bruce, V. C, refused to admit a bare declaration of 
 the son, for the purpose of rebutting the trust. In the same case 
 his Honor received with some doubt a similar declaration, which was 
 supported by a corroborative fact, but under the circumstances he did 
 not consider that evidence suflScient to rebut the trust, and decreed 
 in favor of the father's claim. (r) 
 
 It was said by the Lord Chancellor in Grey v. Grey,(s) that, 
 "where a father intends a trust, he ought to see it declared in writing, 
 or supported by direct proof, and not rest upon constructions ;"(s) 
 and Lord Eldon has observed that " this principle of law and pre- 
 sumption," (viz. in favor of the advancement of a child,) " ought not 
 to be frittered away by nice refinements."(f) However it is not es- 
 sential to have an actual declaration or admission of the trust either 
 in writing or by parol ; there may be other circumstances, which, 
 when established in evidence, will support the inference, that the 
 nominee was intended to take as a trustee for the purchaser, and not 
 for his own benefit. 
 
 Thus where a father had already fully provided for a son, a further 
 r*i nn *P"rchase in his name has been considered not to be an ad- 
 L J vancement;(M) more especially if there are other children 
 unprovided for.(a;) But if the child be provided for and emancipated 
 only inpart, that will not be sufiicient to rebut the presumption of ad- 
 vancement, (y) And a younger son, on whom a revision had been 
 settled by his father expectant on his mother's death, has been con- 
 sidered unadvanced ; " The father is the only judge as to the ques- 
 tion of the son's provision," and if he consider a child unadvanced, 
 though some provision may have been made for him, that will be 
 sufficient to prevent the trust. Indeed from the state of the autho- 
 rities on the point, there seems to be much force in the observation of 
 the Lord Chief Baron, in Dyer v. Dyer, "that the distinction, of the 
 son being provided for or not, is not very solidly taken, or uniformly 
 adhered to. "(2) (1) 
 
 (g) Taylor v. Taylor, 1 Atk. 386 ; Shales v. Shales, 2 Freem. 252 ; Ked- 
 Lamplugh v. Lamplugh, 1 P. Wms. dingtonu. Reddington, 3 Ridg, P. C. 176; 
 111; Eeddingtonv.Reddington, 3Ridg. Grey ■«. Grey, 2 Swanst. 600. [See 
 P. C. 176. [See Steere v. Steere, 5 J. Ca. Dudley v. Bosworth, 10 Humph. 12.] 
 10.] (x) Pole V. Pole, 1 Ves. sen. 76. 
 
 (r) Scawini). Scawin, 1 N. C. C. 65. (jy) Reddington v. Reddington, ubi 
 (s) Grey v. Grey, 2 Sw. 600. supra ; Grey ■«. Grey, 2 Swanst. 600. 
 
 (?) In Finch ti. Finch, 15 Ves. 50. (2) Reddington v. Reddington, ubi 
 
 (u) Elliott D. Elliott, 2 Ch. Ca. 231; supra; Dyeri). Dyer, 2 Cox, 94. 
 (1) In the case of Kilpin v. Kilpin, it was said by the Lord Chancellor (Lord 
 Brougham), that it was a ma,terial circumstance, if a provision had been pre- 
 viously made for the child or not, but that was far from being decisive. Kilpin 
 V. Kilpin, 1 M. & K. 542. 
 
OR PRESUMPTIVE TRUST. 145 
 
 Possession of the estate taken by the father, and acts of ownership 
 exercised by him during his life, are circumstances of evidence as to 
 his intention, although by no means conclusive, (a) 
 
 Where the child, in whose name the purchase was taken, was an 
 infant at the time, possession taken by the father, and the receipt 
 of the rents by him during his life, will not be deemed subversive of 
 the child's claim ; but such acts will be considered, as done by the 
 father in his character of guardian -.{b) although it was observed by 
 Lord Chief Baron Eyre, " that it would be pretty diflScult for a son 
 to succeed in a bill against the father for those rents, "(c) 
 
 Moreover in such a case, the unfitness of an infant to be a trustee 
 is an additional ground, for presuming an intention on the part of 
 the father, that he should take beneficially, (c^) 
 
 In one case a distinction was taken on the ground, that the parent 
 exercised acts of ownership after the infant had come of age, and had 
 become competent to assert his rights ; in which case, it was said, 
 that the child should be trustee for the father. (e) 
 
 This distinction however, cannot be depended on. It seldom hap- 
 pens that the father gives the son possession during his life. Yet in 
 Grey v. Grey, the court clearly did not recognise any difi"erence on that 
 ground ; for, said the Lord Chancellor in his judgment, " If the son 
 suffer the father, who purchased in his name, to receive the profits, 
 &c. ; this act of reverence and good manners will not contradict the 
 nature of things, and turn a presumptive advancement into a trust."(/) 
 And in the late case of Sidmouth v. Sidmouth,(^) where the father 
 during his life had received *the dividends of stock purchased p^w ^ r-i 
 in his son's name ; Lord Langdale, M. R., observed, that the 
 circumstance of the son's being adult did not appear to him to be ma- 
 terial. (^) 
 
 Acts done by the child, authorizing the enjoyment by the father 
 of the beneficial interest in the property ; such as receipts for rent 
 for the father's use, or a power of attorney for him to receive the 
 dividends of stock, will not of themselves, or when joined with the 
 fact of the father's possession, be sufficient to convert the child intO' 
 a trustee. (A) 
 
 Where the estate purchased is reversionary, possession can afforct 
 no evidence, until the determination of the previous estate.(j) And 
 
 (a) Murless v. Franklin, I Sw. 17; (e) Lloyd v. Reap, 1 P. Wms. 608. 
 
 Scawin v. Scawin, 1 N. C. C. 67. (/) Grey v. Grey, 2 Swanst. 600 ; 2: 
 
 (6) Mumma'u. Mumma, 2 Vern. 19; Sugd. V, & P. 143. 
 
 Lamplugh v. Lamplugh, 1 P. Wms. (g-) Sidmouth v. Sidmouth, 2 Beav. 
 
 Ill; Taylor v. Taylor, 1 Atk. 386. 456. 
 
 (c) DyeriJ. Dyer, 2 Cox, 95. (A) Taylor v. Taylor, 1 Atk. 386;. 
 
 (d) Lamplugh v. Lamplugh, 1 P. Sidmouth v. Sidmouth, 2 Beav. 44T. 
 Wms. 112. (i) Murless v. Franklin, 1 Sw. 18. 
 
 10 
 
146 TRUSTEES BY RESULTING 
 
 in the case of a purchase in the joint names of the father and son, 
 the father's possession being consistent with the deed is no evidence 
 of a trust, (i) 
 
 So the circumstance of the parent paying fines, or laying out 
 money in repairs or improvements of the estate will not of itself 
 make the child a trustee.(Z) However in a late case Sir K. Bruce, 
 V. C, seems to have laid some stress on the fact, of the father 
 having paid the subsequent calls on shares, purchased by him in his 
 son's name, in order to assist him to the conclusion, that the pur- 
 chase was a trust for the father's benefit. (m) 
 
 In like manner any contemporaneous act, which is wholly incon- 
 sistent with the notion, that the child was intended to take bene- 
 ficially, will make him a trustee. For instance a surrender at the 
 same court made by a father to the use of his will of a copyhold 
 taken in his son's name ;[n) or where it appears, that the object of 
 the transaction was to efi"ect some particular purpose, e. g., to sever 
 a joint-tenancy, or to avoid a liability, attaching upon the owner of 
 the legal estate. (o) And where a father put in his own life and the 
 lives of his two sons, and at the same court took a license to himself, 
 to lease for 70 years, that was held sufficient to show, that he did 
 not intend his sons to take beneficially, (p) 
 
 Any evidence however, which is used for the purpose of displacing 
 the title of the nominee, unless it be founded on his own admission 
 or declaration of the trust, must be contemporaneous with the pur- 
 chase. Subsequent acts, or declarations of the purchaser, or any 
 other matter arising ex 'post facto cannot be admitted for this pur- 
 pose: although they be of the most unequivocal and conclusive 
 description. (g) On this ground a subsequent mortgage or devise, or 
 .other disposition, by the purchaser of the property will not affect 
 the rights of the child, if the original transaction can be established 
 as an advancement in his favor.(r) 
 
 It is however quite clear, that according to the general rule of 
 ■equity, if a father devise to another the estate bought in the name 
 of a child, and make other provisions for the child by his will, the 
 \child would be put to his election. (s) Nevertheless in the early case 
 
 (4) Grey v. Grey, 2 Sw. 599. Prankerd, 1 S. & S. 1 ; Crabb v. Crabb, 
 
 (J) Murama v. Mumma, 2 Veni. 19. 1 M. & K. 519; Sidmoutht). Sidmouth, 
 
 (m) Scawin v. Scawin, 1 N. C. C. 67. 2 Beav. 455. 
 
 (n) Prankerd u Prankerd, 1 S.&S. 1. (r) Back v. Andrewr, 2 Vern. 120; 
 
 (o) Baylis v. Newton, 2 Vern. 28 ; Dyer v. 'Dyer, 2 Cox, 92 ; 1 P. Wms. 
 
 Birch V. Blagrave, Ambl. 264; 2 Sugd. 112; Finch v. Finch, 15 Ves. 51; Mur- 
 
 V. &P. 144. less V. Franklin, 1 Sw. 13; Skeats «. 
 
 (p) Swift d. Farr v. Davis, 8 East, Skeats, 2 N. C. C. 9. 
 
 354, n. (s) Dummer v. Pitcher, 5 Sim. 35; 
 
 ({) Finch D. Finch, 15 Ves. 51 ; Mur- S. C. 2 M. & K. 262; 2 Sugd. V. & P. 
 
 less I). Franklin, 1 Sw. 13; Prankerd v. 144. v 
 
OR PRBSUMPTIVE TRUST. 147 
 
 of Shales v. Shales, a *child under such circumstances was 
 not put to his election. (f) And in order to raise a case of ^ -• 
 election against the child the disposition of the estate by the will 
 must be distinct and explicit.(w) 
 
 The presumption as to the intention of the parties with regard to 
 a purchase of one estate cannot be affected by circumstances, con- 
 nected with similar purchases of other estates by the same par- 
 ties. (2:) 
 
 II.— WHERE THERE IS A VOLUNTARY CONVEYANCE WITHOUT ANY DE- 
 CLARATION OF TRUST. 
 
 It has been laid down broadly by Mr. Cruise in his Digest, that, 
 where the legal estate in lands is conveyed to a stranger, without 
 any consideration, there arises a resulting trust to the original 
 owner; in conformity to the old doctrine, that where a feoffment 
 was made without consideration, the use resulted to the feoffor. (?/) 
 And in support of this doctrine that learned writer cites the case of 
 Duke of Norfolk v. Browne,(3) in which case the duke had executed 
 a grant of the next avoidance of a church to a clergyman ; but the 
 grantee knew nothing of it, and deposed that he did not purchase it 
 of the duke; and it was decreed to be a resulting trust for the 
 grantor, there being no trust declared. (a) 
 
 However notwithstanding the authority of a statement coming 
 from such a quarter, it is conceived that the proposition, as stated 
 above, cannot be supported. It was distinctly laid down by Lord 
 Hardwicke in the case of Young v. Peachy,(a) that it was by no 
 means the rule of the court, that, where a voluntary conveyance is 
 made, a trust shall arise 'by implication. (a) And it has long been 
 the settled doctrine of the court, continually recognised, and acted 
 upon, by a series of eminent judges, that a voluntary conveyance, or 
 assignment, of real or personal estate, if duly executed and acted 
 upon, will be valid and binding upon the original owner, and subse- 
 quent volunteers claiming under him. (J) However it is scarcely 
 necessary to add, that such a disposition of property will not affect 
 the rights of creditors, or subsequent purchasers for valuable con- 
 
 (t) Shales v. Shales, 2 Freeman, 252. and see Fordyce v. Willis, 3 Bro. C. C. 
 
 (it) Dummer v. Pitcher, 2 M. & K. 585. 
 
 262. (6) Clavering v. Clavering, 2 Vern. 
 
 (2) Murless u. Franklin, 1 Sw. 19. 473; Boughlon v. Boughton, 1 Atk. 
 
 ly) 1 Cruis. Dig. tit. 12, Ch. 1, s. 52. 625; Cook v. Fountain, 3 Sw. 590; see 
 
 («) D. of Norfolk v. Browne, Free. Cecil v. Butcher, 2 J. & W. 573 ; Jef- 
 
 Ch. 80. [But see 2 Spence Eq. 198.] ferys v. Jefferys, 1 Cr. & Ph. 138; 
 
 (a) Young v. Peachy, 2 Atk. 256; Dummer v. Pitcher, 2 M. & K. 262. 
 
148 TRUSTEES BY REStJLTINO 
 
 sideration.(c) With regard to the case of Norfolk v. Browne, which 
 appears to be relied upon by Mr. Cruise as an authority for his 
 statement of the law on this subject, we shall presently see, that 
 the view of the law taken above is not at all controverted by that 
 decision. (1) 
 
 It may therefore be stated as the clear result of the authorities, 
 that where a person, being a stranger in blood to the donor, {d) and 
 r*107"l ^ fortiori *if connected with him by blood,(e) is in posses- 
 sion of an estate(2) under a voluntary conveyance, duly exe- 
 cuted, the mere fact of his being a volunteer will not of itself create 
 any presumption that he is a trustee for the grantor ;^ but he will 
 be considered entitled to the enjoyment of the beneficial interest, 
 unless that title is displaced by sufficient evidence of an intention on 
 the part of the donor to create a trust : and, as was observed by the 
 Lord Chancellor in the case of Cook v. Pountain,(/) he need not 
 bring proofs to keep his estate, but the plaintiff must bring proofs 
 to take it from him.(/) 
 
 It is to be observed, that deed may be founded on some considera- 
 tion, and yet still come within the technical definition of a voluntary 
 instrument. In equity the statement of a mere nominal pecuniary 
 consideration certainly would not be allowed to affect the construction 
 or operation of a deed.(5r) But if the consideration be that of blood, 
 that amongst other circumstances would probably have some weight 
 with the court in deciding whether or not a resulting trust were 
 created, on a voluntary conveyance. 
 
 However, the title of a volunteer is never favored in a court of 
 equity •,{Ji) and proper evidence will always be admitted in these 
 
 (c) See Stat. 13 Eliz. c. 5, and 27 35: and 2 M. & K. 262, 273. [See 
 Eliz. c. 4. Bank U. S. v. Houseman, 6 Page, C. 
 
 (d) Cook V. Fountain, 3 Sw. 585. R. 526; Miller v. Wilson, 15 Ohio, 68.] 
 
 (e) Williamson v.- Codrington, 1 Ves. (/) Cook v. Fountain, 3 Sw. 590. 
 511; Lord Townshend «. Wyndham, 2 (g-) See Young t>. Peachy, 2 Atk. 256. 
 Ves. 10; Dummer v. Pitcher, 5 Sim. {h) Cook ■«. Fountain, 3 Sw. 591. 
 
 ^1) It may be observed that where a gift is made by will, that of itself sup- 
 poses a consideration ; and though no use or trust be expressed, both the estate, 
 and the use, will pass to the donee ; and it cannot be averred to be to any olher 
 use, than to the use of the donee. See 1 Pow. Jarm. Dev. 208. 
 
 (2) It is scarcely necessary to repeat here, that as a general rule, equity will 
 not recognise the title of a volunteer unless it be completely executed ; and 
 therefore if the grant be not formally and legally executed, or if owing to its 
 loss or destruction or any other reason it becomes necessary to have recourse lo 
 equity to put him in possession of the estate, the court will not interfere. See 
 Cook V. Fountain, 3 Sw. 591, 3; Cecil v. Butcher, 2 J. & W. 565; and see this 
 subject considered ante, Part I., Div. I., Chap. II., Sect. 5. 
 
 ' Philbrooke v. Delano, 29 Maine, 410. Here the grantee was father-in-law 
 to the grantor; but no stress was laid on the connexion. 
 
1 
 OR PRESUMPTIVE TRUST. 149 
 
 cases to establish a trust against him, by showing, that it was the 
 intention of the parties at the time, that he should take as a trustee 
 for the grantor, and not for his own benefit, (i) 
 
 For this purpose the best and most complete evidence will be 
 either a written admission of the trust by the volunteer, or a similar 
 declaration of trust by the donor made either previously to or con- 
 temporaneously with the transaction. Where the deed contains no 
 power of revocation, no subsequent disposition or declaration by the 
 grantor is admissible for the purpose of establishing the trust.(^) 
 
 But parol declarations cannot be received in evidence with this 
 object; for in these cases there exists no resulting or presumptive 
 trust, and the admission of such evidence would be for the purpose 
 of contradicting the written instrument, and establishing a trust by 
 parol in the very teeth of the Statute of Prauds.(Z) 
 
 However where the case is grounded upon the existence of actual 
 or constructive fraud, allegations of which are contained in the bill, 
 we shall see hereafter, that parol declarations will be received in 
 support of those allegations, (m) 
 
 *And where parol evidence has once been resorted to hy p^-j^n-i 
 the defendant, with a view of disproving the plaintiif 's case , 
 then, according to the general rules of evidence the plaintiff in his 
 turn may have recourse to similar proofs for the purpose of rebut- 
 ting that evidence, (w) 
 
 In the absence of any direct admission or declaration of the trust, 
 a variety of circumstances, arising from the nature of the transaction 
 and the conduct and relative situation of the parties, will constitute 
 ingredients of evidence, from which the court will infer it to have 
 been the intention of the party, not to divest himself of the bene- 
 ficial ownership by the execution of a voluntary conveyance. 
 
 Thus the deed being made ex parte, and not being communicated 
 to the donee, is a circumstance, to which much attention will be 
 paid.(o) And it will be observed that this circumstance occurred in 
 the case above mentioned of Duke of Suffolk v. Browne, and that 
 decision may therefore thus be well accounted for. But in truth -the 
 very meagre and imperfect report of the case renders it impossible 
 to examine, or ascertain the principles, on which the Lord Keeper 
 
 (i) Hutchins v. Lee, 1 Atk. 449; u. Whitley, 4 Russ. 423. [Philbrook «. 
 
 Cook V. Fountain, 3 Sw. 585; Young Delano, 29 Maine, 410; Rathbun v. 
 
 V. Peachy, 1 Atk. 256. Rathbun, 6 Barb. S. C. 105.] 
 
 {k) Clarering v. Clavering, 2 Vern. (m) See next chapter, Young j). Pea- 
 
 473 ; Lady Hudson's case, cited ib. 476; chy, 2 Atk. 256; Pitcaime v. Ogbourae, 
 
 Birch V. Belgrave, Ambl. 266. 2 Ves. 375. 
 
 {I) Taylor v. Taylor, 1 Atk. 386 ; and (n) Dyer u. Dyer, 2 Cox. 93, 4. [Steere 
 
 see Fordyce v. Willis, 3 Bro. C. C. 576; v. Steere, 5 J. C. R. I.] 
 
 see Dyer v. Dyer, 2 Cox. 93, 4; Leman (o) Cecil v. Butcher. 2 J. & W. 573. 
 
150 TRUSTEES BY RESULTINff 
 
 rested his decision ; and it therefore cannot be looked upon as a very 
 sufficient authority on the general principle of law involved in it.(^) 
 
 So where the grantor continues in possession of the property, and 
 to exercise acts of ownership over it;(5') and more especially if the 
 grkntee recognise him as the owner ;(r) or acquiesce for a long 
 period in being deprived of the benefits, conferred on him by the 
 deeds ;(s) all these facts will tend materially to establish the pre- 
 sumption, that a trust was intended. 
 
 Evidence of this nature will be admitted for the purpose of esta- 
 blishing a trust against the volunteer, though connected by relation- 
 ship with the grantor; but in those cases, especially where the 
 relationship is a near one, such as between father and son or husband 
 and wife, it seems that the presumption in favor of the grantee's 
 title is stronger, than where he is an entire stranger ; and the 
 evidence to displace it must therefore be also proportionably 
 stronger, (i) 
 
 But even where the voluntary grant was from a father to a child, 
 the fact of the child having been previously advanced, when joined 
 with other circumstances, has been considered to indicate an inten- 
 tion, that the child should take only as a trustee.(M) 
 
 In like manner where it is proved, that a voluntary conveyance 
 was made ; only to answer a particular purpose ; that even as 
 between a parent and child exclude the presumption, that an ad- 
 vancement was intended for the child ; and a trust will result for the 
 benefit of the grantor.(a;) 
 
 Thus in an early case, a father being seised in joint-tenancy of 
 one-third of a real estate, conveyed his third in consideration of 
 natural love and afiection to himself for life, with remainder to his wife 
 for life, and then to his own son the defendant in fee : it was proved 
 r*1 0Q1 *^^* *^^ ohject of the * conveyance was to sever the joint-tenancy. 
 The bill was filed by a daughter, who claimed a legacy, 
 charged on the same real estate by a will, made by the father subse- 
 quently to the conveyance. And the Lord Chancellor declared that 
 if the entire fee had been conveyed to the son he would have taken it 
 to le a trust in the son ; but as it was limited to the father and 
 mother for life, and then to the son in fee he could not take it to be 
 a trust.(2/) This decision evidently proceeded upon the conclusion, 
 
 (p) Free. Ch. 80. 646 ; Drummer v. Pitcher, 2 M. & K. 
 
 (g) Barlow v. Heneage, Prec. Ch. 273; and Dyer v. Dyer, 2 Cox, 93. 
 
 211; Birch v. Blagrave, Ambl. 264; (u) .Birch ■«. Blagrave, Ambl. 265. 
 
 Cook V. Fountain, 3 Sw. 593. (x) Cecil v. Butcher, 2 J. & W. 565, 
 
 (r) Cook V. Fountain, 3 Sw. 593. and cases cited. 
 
 («) Platamore v. Staple, Coop. 253 ; (i/) Baylis v. Newton, 2 Vern. 28. 
 
 (i) See George v. Howard, 7 Price, 
 
OR PRESUMPTIVE TRUST. 151 
 
 that those limitations showed, that the conveyance was not executed 
 solely for the purpose of severing the joint-tenancy. 
 
 In like manner where a bond for a sum of money was executed by 
 a father in favor of one of his daughters, for the purpose of avoid- 
 ing the tax on his property, and that purpose seems to have been 
 recognised by the daughter, who was provided for equally with the 
 other children without the bond : and the bond had always remained 
 in the father's possession. The Lord Keeper held it to be a trust 
 for the father, and decreed the bond to be set aside.(3) 
 
 So in another case a father made a secret conveyance of real es- 
 tate to his daughter in fee ; but retained possession of the deed, and 
 also of the estate, and subsequently devised it to the plaintiffs. The 
 daughter had been previously provided for on her marriage ; and it 
 was proved, that the conveyance was made hy the father in order to 
 disqualify himself from being Sheriff of London. However this 
 purpose was not acted upon, and the father afterwards paid the fine 
 for not serving the office of sheriff. Under these circumstances Lord 
 Hardwicke held, that the conveyance could not prevail against the 
 father's intention ; that the will passed the trust, and the plaintiffs 
 were therefore entitled to a conveyance of the legal estate from the 
 heirs at law of the daughter, (a) 
 
 If however the purpose, for which a conveyance is proved to have 
 been made, be illegal ; and the court, by giving effect to a trust in 
 favor of the conveying party, would assist in defeating the policy of 
 the law ; it will refuse to interfere, and will leave the parties to the 
 remedies if any, which they may have at law. 
 
 Therefore in the preceding case (Birch v. Blagrave), if the father 
 in consequence of the conveyance had taken the oath, that he was 
 not worth £15,000, and had thereby obtained exemption from ser- 
 ving as sheriff, the court would have refused to establish the trust, 
 for " that would have been against conscience, and in fraud of th^ 
 law."(6) 
 
 And where a conveyance is executed for the purpose of creating a 
 colorable qualification to sit in the House of Commons ;(c) or to kill 
 game •,{d) if that purpose has been answered, the court will refuse 
 to interfere on either side ; either for the purpose of enforcing a 
 trust in favor of the father, or establishing the conveyance on be- 
 half of the son.(e) 
 
 (s) Ward v. Lant, Prec. Ch. 182. (d) Roberts v. Roberts, Daniel, 143 ; 
 
 (a) Birch v. Blagrave, Ambl. 264 ; Brackenbury v. Brackenbury, 2 J. & W. 
 and see Gaskell v. Gaskell, 2 Y. & Jerv. 391 ; Cecil v. Butcher, ib. 565. 
 
 502. (e) See Brackenbury v. Brackenbury, 
 
 (b) Birch v. Blagrave, Ambl. 266. ubi supra; Cecil u. Butcher, ubi supra. 
 [See ante, 93, note 2.] [See Fields t;. Lonsdate, 13 B.eav. 
 
 (c) Col. Pitt's case, cited Ambl. 266 ; 787.] 
 Curtis V. Perry, 6 Ves. 747. 
 
152 TRUSTEES BY RESULTING 
 
 The case of "Ward v. Lant may perhaps appear at first sight not 
 to be in accordance with this doctrine ; but it will be seen on exami- 
 nation that the daughter there had recognised the purpose for which 
 P1101 *^^ ^^^^ had *been executed, and it would therefore have 
 ^ been fraudulent and inequitable for her to have enforced 
 payment of it to herself.f/) 
 
 Where however the purpose contemplated by the deed, though 
 illegal, or such as the court would not sanction, is abandoned, or not 
 acted upon hy the parties ; it seems that the court will not recognise 
 that purpose, as evidence of an intention, that the donee should not 
 take beneficially; and on that ground will establish the trust in 
 favor of the grantor. Or at any rate it will interpose so far, as to 
 grant an injunction against suing on the deed at law until the hear- 
 ing of the cause. (^) 
 
 It very frequently happens that the voluntary deed remains in the 
 possession of the party, by whom it is made, and is not acted upon 
 during his life. This when joined with other circumstances as in 
 Birch V. Blagrave will assist, and very materially assist, the court 
 to the conclusion, that the party did not intend to divest himself of 
 the beneficial interest in the property by the execution of the deed ; 
 but whether it will of itself have this effect, appears to be a matter 
 of doubt.' 
 
 In the case of Naldred v. Gilham,(A) where a woman made a 
 voluntary settlement in favor of a nephew without power of revoca- 
 tion hut she kept it in her own possession, and subsequently burned 
 it, and made another settlement of the same property on a difierent 
 nephew and delivered it to him ; Lord Chancellor Parker refused to 
 establish the first deed against the party claiming under the second. 
 And this decision seems to have proceeded principally on the ground, 
 that, the aunt's having kept possession of the first deed, showed that 
 she did not intend to be bound by it. However it is to be remarked, 
 that the only evidence of the first deed was a copy surreptitiously 
 obtained by the plaintifi", and the fraudulent nature of that proceed- 
 
 (/) Ward V. Lant, Piec. Ch. 182. {h) Naldred ■«. Gilhara, 1 P. Wms. 577. 
 
 (g-) Birch 1^. Blagrave, Ambl. 262; 
 Platamore v. Staple, Coop. 250. 
 
 ' In Souverbye v. Arden, 1 J. C. R. 240, it was held by Chancellor Kent after a 
 full discussion of the authorities cited in the text, that a voluntary settlement 
 was always binding on the grantor, when fairly made, unless there were clear 
 and decisive proof that he never parted or intended to part with the possession 
 of the deed ; and that there must be other circumstances besides the mere fact 
 of retention, to show that it was not intended to be absolute. So in Tolar v. 
 Tolar, 1 Dev. Eq. 456, it was held that where a voluntary deed to a son fairly 
 obtained, afterwards gets out of the donor's possession and is destroyed, that 
 equity would compel a second conveyance to be executed. 
 
OB PRESUMPTIVE TRUST. 153 
 
 ing had evidently considerable influence upon the Lord Chancellor's 
 judgment. (A) 
 
 So in Cotton v. King,(i) Lord Chancellor King said, " that if 
 Lady Cotton had executed the deeds, and kept them in her own cus- 
 tody, and they had been got from thence, I do not think she should 
 have been bound by them." This however was a mere dictum, as 
 the case went off on another point :(i) and it will be observed in 
 this case also, that fraud in of)taining possession of the deed formed 
 a material item in the Lord Chancellor's proposition. 
 
 In Uniacke v. Gi\es,{k) an aunt made a voluntary deed, assigning 
 a chose in action to a trustee for her nephew to take effect after her 
 death. The nephew was made acquainted with the transaction ; but 
 the deed remained in the possession of the donor, who afterwards 
 destroyed it, and made a new one giving the interest to another per- 
 son. The bill was filed by the nephew against the representative of 
 the trustee to establish the first deed. But the Lord Chancellor 
 of Ireland held, that whether the deed contained a power of revo- 
 cation or not, and however formally it was executed, its retention in 
 the custody of the donor made it revocable, and he therefore dis- 
 missed the bill.(A) 
 
 In all these cases it will be observed, that the party claiming un- 
 der the *first voluntary deed was a plaintiff seeking the aid 
 of equity to enforce his claim : without entering therefore ^ J 
 into the question of the validity of the deed, the court may well have 
 refused to grant the relief prayed, on the general principle that equity 
 will not interfere, to enforce or complete the title of a volunteer.(Z) 
 
 On the other hand authorities are to be found of a contrary ten- 
 dency ; and which show that the retention of the deed by the grantor 
 will not of itself affect its operation. Thus in Barlow v. Heneage,(m) 
 a voluntary settlement by a father on his daughters was established 
 against a subsequent will, although the deed had remained in his 
 possession, and the profits of the estate had been received by him 
 up to his death, (m) 
 
 And in Clavering v. CIavering,(n) where a voluntary settlement 
 had been made in favor of a grandson, and some years afterwards 
 another settlement of the same estate in favor of a son ; the court 
 refused to relieve the son against the first settlement ; although that 
 deed had never been published, and was only discovered after the 
 death of the settlor amongst his papers: and he had frequently 
 recognised the second deed as the settlement of the property.(w) 
 
 (A) Naldred v. Gilham, 1 P. Wms. (0 See Cook v. Fountain, 3 Sw. 591; 
 
 577. Cecil v. Butcher, 2 J. & W. 565, 573. 
 
 (i) Cotton D. Xing, 2 P. Wms. 358; (m) Barlowu.Heneage, Prec.Ch.211. 
 
 King V. Cotton, ib. 674. (n) Clavering v. Clavering, 2 Vern. 
 
 (A) Uniacke v. Giles, 2 Moll. 267. 473. 
 
154 TRUSTEES BY RESULTING 
 
 So in Boughton v. Boughton,(o) Lord Hardwicke decided, that a 
 voluntary settlement without a power of revocation, which had been 
 kept by the settlor in his possession, was not revoked by a subse- 
 quent will.(o) In the case of Eoberts v. Roberts,(^) in the Exche- 
 quer the observations of the Lord Chief Baron tend strongly to the 
 same effect.(^) And in Brackenbury v. Brackenbury,(g) Lord Eldon 
 refused to relieve a devisee against the effects of a voluntary settle- 
 ment, which had remained in the possession of the grantor without 
 being made use of up to the time of his death ; although the party 
 claiming under the deed had fraudulently obtained possession of it 
 from the devisee.(9') 
 
 In, these cases also it is to be remarked, that the question was 
 raised and the relief sought by the volunteers claiming under the 
 subsequent disposition against the prior volunteers, and the refusal 
 of the court to interfere may therefore be also referred to the same 
 rule against interposing in favor of volunteers. 
 
 It may be observed, that wherever the circumstances of the case 
 are such as to create a resulting trust upon a voluntary grant, the 
 relief will be given equally whether the bill to establish the trust be 
 filed by the grantor himself,(»') or by his heir or devisees or his per- 
 sonal representatives after his death, (s) The whole of the authori- 
 ties on this subject have been collected, and the principles on which 
 they proceed, considered by Sir Thomas Plumer, M. R., in his 
 judgment in the case of Cecil v. Butcher.(f) That learned judge 
 there says, "they have not depended singly upon the question, 
 whether the party has made a voluntary deed ; not merely upon 
 whether, having made it, he keeps it in his own possession ; not 
 merely upon whether, it is made for a particular purpose ; but when 
 r*l 1 21 ^^^ *these circumstances are connected together ; when it is 
 voluntary, when it is made for a purpose, that has never been 
 completed ; and when it has never been parted with ; then the courts 
 of equity have been in the habit of considering it as an imperfect 
 instrument. If it was understood between the parties, that it should 
 only be kept in readiness to be used, if wanted ; or if it is made ex 
 parte, and never intended to be divulged to the grantee, unless the 
 particular purpose requires it ; the question is, whether there is not 
 & locus penitentice ; if under such circumstances, the grantee fur- 
 tively gets possession of the deed, though it is good at law, yet he 
 has obtained it contrary to the intention of the grantor, who never 
 
 (o) Boughton V. Boughton, 1 Atk. (s) D. of Norfolk v. Browne, Prec. 
 
 625. Ch. 80 ; Young v. Peachy, 2 Atk. 254 ; 
 
 (p) Roberts «. Roberts, Daniel, 143. Birch i;. Blagrave, Ambl. 264. 
 
 (5) Brackenbury v. Brackenbury. 2 (J) Cecil v. Butcher, 2 J. & W. 565, 
 
 J.&W. 391. ' 73. 
 
 (r) Cook V. Fountain, 3 Sw. 565. 
 
OK PKESTTMPTIVE TKUST, 155 
 
 meant him to have it ; and will not a court of equity, at least refuse 
 Mm its assistance ? This principle ■will be found to pervade all the 
 cases. It may perhaps, when the transaction is known to both par- 
 ties, rest upon the supposition of a collateral agreement between 
 them, that the deed should not be used — should not be called forth 
 into life, unless wanted for the special purpose, and that the deed 
 being executed on the faith of that agreement, it is contrary to 
 good conscience and equity to call for it, and apply it beyond the 
 purpose for which the grantee knew it to be intended." In the case, 
 with reference to which these observations were used, a conveyance 
 had been made by a father to his son, to qualify him to shoot. The 
 deed remained in the father's possession, was never communicated 
 by him to the son, and was afterwards lost. On that ground the 
 son filed his bill to establish the conveyance ; but the court refused 
 to interfere, and left him to what remedy he might have at law.(i) 
 
 It is to be observed, that if the intention of the party at the time 
 of making the deed was to benefit the person taking under it, a sub- 
 sequent change of that intention cannot have the effect of altering 
 the nature of the transaction, so as to convert the donee into a 
 trustee for the author of the deed, for volunteers subsequently 
 claiming under him.(M) However a subsequent disposition of the 
 property by will would raise a case for election against the donee, if 
 he claimed any benefit under the will. (a;) 
 
 Where any valuable consideration is expressed in the deed itself 
 the court will not look narrowly into the consideration ; and espe- 
 cially between father and son the slightest consideration (such as a 
 person joining in a conveyance), will be sufiBcient to support a con- 
 veyance even against creditors ; and a fortiori will suffice to pre- 
 vent a resulting trust.(?/) 
 
 Where the conveyance is expressed in the deed to be for a valua- 
 ble consideration, parol evidence cannot be received for the purpose 
 of showing that the purchaser was intended to be merely a trustee 
 for the vendor. But if it be proved, that the purchase money was 
 not paid, the vendor will have a lien on the property for the 
 amount.(z)* 
 
 (0 Cecil V. Butcher, 2 J. & W. 565, 73. (j/) Middleton v. Ld. Kenyon, 2 Ves. 
 
 (u) Lady Hudson's case, cited 2 jun. 410; 2 Sugd. V. & P. 262. 
 Vern. 476; Birch u.Blagrave,Ambl. 266. (a) Leman d. Whitley, 4 Russ. 423. 
 
 (x) Cecil V. Butcher, 2 J. & W. 578 ; [See the remarks of Judge Story on 
 
 Dummer v. Pitcher, 2 M. & K. 262. this case. Eq. Jur. § 1999, note 2.] 
 
 ' Wilkinson v. Wilkinson, 2 Dev. Eq. 376 ; Philbrooke v. Delano, 29 Maine, 
 410; Eathbun v. Rathbun, 6 Barb. S. 'C. 98. In the last case it was also held, 
 that a covenant of warranty would estop the grantor in an alleged voluntary deed 
 from claiming a resulting trust, even if parol evidence were admissible in such 
 case. Squire v. Harder, 1 Paige, Ch. 494, accord. 
 
156 TRUSTEES BY RESULTING 
 
 According to the circumstances of the case as established in evi- 
 dence, a resulting trust for the donor may be supported as to part 
 of the property, which is the subject of a voluntary grant, and not 
 supported as to the remainder.(a) 
 
 r*11 ^1 *-^'^^ where the grantor has made out in evidence a case 
 -■ for a trust against the grantee, it is of course open to the lat- 
 ter to rebut that case, if he can, by counter evidence of his own. 
 And for this purpose parol declarations are clearly admissible; for 
 their object is, to support and not to contradict the legal title and 
 the deed.(J) Such evidence may also be drawn from other circum- 
 stances such as the nature of the property, apd the conduct, and 
 situation of the parties, and also the provisions of the deed. 
 
 Thus in Cook v. Fountain,(c) a voluntary grant of a rent-charge de 
 novo to a stranger was considered to be inconsistent with an inten- 
 tion, that it should be held in trust ; and the deliberation with which 
 the grant was executed in that case, seems also to have influenced 
 the court in deciding against the existence of any trust, although a 
 trust was established in the same case with respect to a grant of 
 leases. (c) And in Baylis v. Newton,(cZ) a father being seised in fee 
 of an undivided third of an estate, made a voluntary conveyance to 
 himself for life, with remainder to his wife for life, and then to his son 
 in fee. It was proved, that the conveyance was made in order to 
 sever the joint-tenancy, which according to a principle above stated, 
 was sufficient to create the presumption of a trust against the son ; 
 but on the other hand the express limitation by the father to himself 
 for life, was considered to be inconsistent with an intention on his 
 part to take the whole by a resulting trust, and the son was conse- 
 quently held to be beneficially entitled. (cZ) 
 
 However proof of the affection entertained by the grantor for the 
 grantee, and of his intention to provide for him, or other general 
 proofs of that nature, are of too vague and loose a description to dis- 
 place a trust, which has been otherwise previously established in evi- 
 dence upon a voluntary grant, (e) 
 
 It may be observed that the court will not give effect to any trust 
 upon a voluntary conveyance, in evasion of an act of parliament, 
 such as the Ship Registry or Bankruptcy Acts, or otherwise in con- 
 travention of public policy. (/) 
 
 (a) Cook V. Fountain, 3 Sw. 585. (d) Baylis v. Newton, 2 Vern. 28. 
 
 (6) Lake v. Lake, Ambl. 127. (e) Cook v. Fountain, 3 Sw. 590, 1. 
 
 (c) Cook V. Fountain, 3 Sw. 596, 7. (J) Curtis v. Perry, 6 Ves. 746. 
 
OR PRESUMPTIVE TRUST. 157 
 
 III.— WHERE THERE IS A VOLUNTARY DISPOSITION OF PROPERTY UPON 
 TRUSTS, WHICH ARE NOT DECLARED, OR ARE ONLY PARTIALLY DE- 
 CLARED, OR FAIL. 
 
 There is no equitable principle more firmly established, than that, 
 where a voluntary disposition(l) of property by deed' or will is made 
 to a person as trustee ; and the trust is not declared at all f or is in- 
 effectually declared f or does not extend to the whole interest given 
 to the trustee ;" *or it fails either wholly or in part by lapse rif-,-,A-, 
 or otherwise ;' the interest so undisposed of will be held by ■- ^ 
 the trustee not for his own benefit, but as a resulting trust for 
 the donor himself or for his heir-at-law or next of kin according to 
 the nature of the estate. And to this head by far the most usual 
 cases of resulting trusts are to be referred. (^f) 
 
 In all these cases all that the court requires, for the purpose of esta- 
 blishing the resulting trust, is a plain declaration on the face of 
 the instrument, that the person to whom the property is given is to 
 take it in trust. Where the gift is expressly " in trust ;" or the do- 
 nees are mentioned in the instrument as "trustees;" the point is 
 clear against them : so clear indeed that parol evidence would be in- 
 admissible in support of their claim to the beneficial interest. (A) 
 However any other expressions clearly indicating an intention, that 
 the party should take as trustee, will be sufficient. " If the whole 
 frame of the will," says Lord Eldon, " creates a trust, for the par- 
 ticular purpose of satisfying which the estate is devised, the law is the 
 same, though the word 'trust' is not used."0 (2) 
 
 (g) Morice D. Bishop of Durham, 10 Wms. Exors, 904, 1 Jarm. Pow. Dev. 
 Ves. 537 ; Paice v. Archbp. of Canter- 506. 
 bury, 14 Ves. 370. (i) Morice v. Bishop of Durham, ubi 
 
 (A) Gladding v. Yapp, 5 Mad. 59; 2 supra; King u. Denison, 1 V. & B. 273; 
 
 vide supra, Division I., Ch. II., S. 2. 
 
 (1) Where there is a conveyance or settlement for valuable consideration, this 
 principle vi^ill not be applied so as to defeat the operation of the deed. There- 
 fore, where in a marriage settlement a terra of ninety-nine years was limited to 
 trustees, but no trusts were declared, and subsequently to the term an estate tail 
 was given to the settlor's son, Lord Hardwicke held, that there was no resulting 
 trust of the term for the settlor and his creditors, as that would render worthless 
 the son's estate tail ; but that the term was in trust to attend the inheritance. 
 Brown v. Jones, 1 Atk. 188. 
 
 (2) The legal title of an executor to the residue, remaining undisposed of by 
 the will, was never favored by courts of equity, and the slightest circumstance 
 would be taken hold of for the purpose of converting him into a trustee for the 
 next of kin. The law on this subject has been altered within the last few years 
 
 ■See Stevens t;. Ely, 1 Dev. Eq. 493. "Post, 118. 
 
 2 Post, 114. ^ Post, 134. 
 
 3 Post, 116. 
 
158 
 
 TKUSTEBS BY EBSULTIN& 
 
 And first with respect to those cases, where the trust is not de- 
 clared at all. It has been said by Lord Eldon, that " if a testator 
 expressly says, he gives upon trust, and says no more, it has been 
 long established, that the next of kin will take."(A:) And it seems 
 that this rule of construction will apply with equal or even greater 
 force to gifts by deed, as well as those by will.(Z) 
 
 The same rule prevails, where the gift is upon trusts or for purposes 
 to he thereafter declared ; and no declaration is made:(?w) although 
 Lord Eldon has said, that in such cases it would perhaps originally 
 have been as well to have held, that the person, to whom the pro- 
 perty was given, should take it.(ji) (1) 
 
 In these cases it is immaterial that the subject of such a gift is a 
 particular or partial interest, reserved or created out of a larger es- 
 tate, as for instance, a term of years, or a specified sum of money.(o) 
 r*116l *And it is to be observed, that, as between the heir-at- 
 law and next of kin of the donor, there will be no equita- 
 ble conversion of the property, which thus remains undisposed of. 
 Therefore where it consists of a term of years carved out of the 
 fee, or of a portion of the money to arise from the sale of real 
 estate, even where that money is directed to be treated as personal 
 estate, the heir-at-law and not the next of kin of the testator will be 
 entitled to the trust.(p) 
 
 Thus where a person by deed conveyed his real estates to trustees, 
 
 (A) 10 Ves. 527 ; Goodere v. Lloyd, 3 6 Hare, 148 ; Flint v. Warren, 12 Jur. 
 
 Sim. 538 ; 2 Phill. 793. 810; 16 Sim. 124.] 
 
 (Z) Brown 1). Jones, 1 Atk. 101; Sid- (n) Morioe «. Bishop of Durham, 10 
 
 ney v. Shelley, 19 Ves. 359 ; see Emb- Ves. 537. 
 
 lyn V. Freeman, Free. Ch, 542. (o) Emblyn v. Freeman, ubi supra; 
 
 (m) Emblyn 1). Freeman, Free. Ch. Collins r. Wakeraan, ubi supra. 
 
 542; Sheldon «. Barnes, 2 Ves. jun. (p) Emblyn d. Freeman, ubi supra; 
 
 447; Collins v. Wakeman, ib. 683. Collins d. Wakeman, ib.; 2 Pow. Dev. 
 
 [Taylor t). Haygarfh, 14 Sim. 8; Onslow 32, &c., by Jarman; Sidney v. Shelley, 
 
 V. Wallis, 13 Jur. 1085 ; Fitch v. Weber, 19 Ves. 358, vide post. 
 
 by the statute 1 Will. IV. c. 40, which provides, that in future executors are to be 
 deemed trustees of any residue, not expressly disposed of, for the next of kin, 
 unless otherwise directed by the will. See 2 Wms. Exors. 898, 1st edit. Where 
 the executor claims under a direct gift or limitation to 'hiTaselipersonally, and not 
 merely as executor; the case is totally different, and the question, whether he 
 will or will not take as a trustee, will depend on the general principles to be 
 considered in the text. [See post, 123j n. 1 .] 
 
 (1) In the early case of Martin v. Douch andOverton, atestator ordered 40i.to 
 be paid to P. M., to be disposed of for certain uses, which he should in a private 
 note acquaint him with, and died without giving any such note or direction ; and 
 it was held by Sir Harbottle Grimstone, M. R., that P. M. should have the 40Z., 
 as the testator did notintend it to come to the executors, Cas. Ch. 198 ; 3 Hare, 
 146, n. However this decision and the reasoning, on which it was founded, is 
 clearly overruled by the later authorities. See the observations of Sir J. Wigram, 
 V. C, in the case of Corporation of Gloucester v. Wood, 3 Hare, 146, 7. 
 
OR PRESUMPTIVE TRUST. 159 
 
 in trust to sell after his death for several purposes, and amongst 
 others, that £200 should he disposed of as he should by a note ap- 
 point; and he died having made no appointment. It was held 
 that there was a resulting trust of the £200 for the heir-at-law. {q) 
 
 And where a testator after giving several legacies, continued thus, 
 " Item — after all my just debts and legacies paid, I give and be- 
 queath the remainder of my estate real and personal and whatever 
 shall be due to me for half-pay," &c., without saying more : it was 
 considered that the intention thus manifested by the testator to dis- 
 pose of the residue, though left inchoate, converted the executor 
 into a trustee for the next of Hw.(r)(l) 
 
 And so in another case, where a testator devised real estates to be 
 sold, and the produce to be considered as part of his personal estate ; 
 and after giving several legacies gave thereout £1,000 to his execu- 
 tor, to be disposed of according to any instructions he might leave 
 in writing : and he left no such instructions ; the heir was held to be 
 entitled to the £l,000.(s) 
 
 In like manner in the very recent case of Corporation of Gloucester 
 V. 'Wood,(^) the testator James Wood made a codicil to his will in 
 these words, " In a codicil to my will I give to the Corporation of 
 Gloucester .£140,000. In this I wish my executors would give 
 £60,000 more to them for the same purpose as I have before 
 named." No other codicil or declaration of the purpose alluded to 
 was found. By the will the executors were made residuary legatees, 
 subject to the payment of debts and legacies. And it was held by 
 Sir J. Wigram, V. C, that the corporation were precluded from 
 taking either the legacy of £60,000 or that of £140,000, which 
 therefore sunk for the benefit of the residuary legatees : and his 
 Honor considered, that the fact of the donee's being a corporation 
 made no difference for the purpose of this construction. (^) 
 
 But where the disposition is by will, the court will not consider 
 itself to be so strictly bound to adhere to the general rule ; and 
 acccordingly it will refuse to decree a resulting trust even in favor 
 of the heir, if it appear *to be contrary to the intention of ^^^ ^ „-. 
 the testator, as collected from the general scope of the will. '- -^ 
 
 (q) Emblyn v. Freeman, Free. Ch. (s) Collins v. Wakeman, 2 Ves. jun. 
 
 542. 683. 
 
 (r) Bishop of Cloyne v. Young, 2 Ves. (t) Corporation of Gloucester ■«. Wood, 
 
 sen. 91 ; see Langham v. Sanford, 17 3 Hare, 131. 
 Ves. 435. [See Mapp v. Elcock, 2 Phill. 
 796.'] 
 
 ( 1 ) Upon the same principle, where a residuary bequest was cancelled by draw- 
 ing a line through it, and other alterations indicating an intention to change, it 
 was held that there was a resulting trust for the next of kin. Mence v. Mence, 
 18 Ves. 348 J Skrymsher «. Northcote, 1 Swanst. 566. 
 
160 TRUSTEES BY RESULTINa 
 
 Therefore where there was a devise to trustees for ninety-nine 
 years upon the trusts thereinafter expressed, and from and after the 
 expiration or sooner determination of the term in strict settlement ; 
 and no trusts of the term were declared ; Lord Eldon considered, 
 that the intention was, to devise immediate estates subject to the 
 term, and not future estates expectant on its determination, and he 
 therefore refused to establish a resulting trust in the term for the 
 heir, but decreed it to attend the inheritance according to the limi- 
 tations of the will.(M) 
 
 2d. Where the trust is insufficiently or ineffectually declared, 
 the effect will be the same, as if it had not been declared at all ; and 
 a resulting trust will be provided that the imperfect declaration, 
 though insufficient to establish the particular purpose contemplated, 
 sufficiently prove it to have been the intention of the donor, that the 
 donee should in no event be entitled to the beneficial interest.(a;) 
 
 In what cases the court will establish a resulting trust upon an 
 imperfect declaration of this description in opposition to the claim 
 of the donee ; " is a question which must be decided upon the con- 
 struction of the language of the instrument in each particular 
 case."(y) 
 
 One of the leading cases on this subject is that of Morice v. The 
 Bishop of Durham, (2) which came before Sir William Grant, M. R., 
 and subsequently on appeal before Lord Eldon. In that case the 
 testatrix bequeathed all her personal estate to the Bishop of Dur- 
 ham, his executors, &c., upon trust to pay her debts and legacies, 
 &c. ; and to dispose of the ultimate residue " to such objects of 
 benevolence and liberality as the bishop in his own discretion, should 
 most approve of ;" and she appointed the bishop her sole executor. 
 The Master of the Rolls held, that it was clear from the words of 
 the will, that this was a gift upon some trust, and not for the per- 
 sonal benefit of the bishop ; but that the trust was too indefinite for 
 the court to execute even as a gift to charity, and that there was 
 therefore a trust of the residue for the next of kin. And this 
 decision was afterwards affirmed by the Lord Chancellor (Lord 
 Eldon).(z) 
 
 The next case is James v. Allen,(a) also before Sir William Grant; 
 there a testatrix bequeathed all her personal estate to three persons, 
 whom she appointed her executors " in trust to be by them applied 
 and disposed of for and to such benevolent purposes as they in their 
 integrity and discretion may unanimously agree on." And the 
 
 (it) Sidney v. Shelley, 19 Yes. 352. (z) Morice v. Bishop of Durham, 9 
 
 (x) Morice V. Bishop of Durham^ 10 Ves. 399 ; S. C. on Appeal, 10 Ves. 522. 
 
 Ves. 527, 537. (o) James v. Allen, 3 Mer. 17. 
 
 (3/) Per Lord Cottenham in Ellis v. 
 
 Selby, 1 M. & K. 298. 
 
OR PRESUMPTIVE TRUST. 161 
 
 Master of the Rolls decided, that this was a trust in the executors ; 
 but that it was void for uncertainty, and therefore distributable 
 among the next of kin.(a) 
 
 In Vezey v. Janson,(6) the testator gave the residue of his estate 
 to his executors upon trust, in default of appointment by him, " to 
 pay and apply the same in or towards such charitable or public pur- 
 poses as the laws of the land would admit of, or to any person or 
 persons and in such shares, &c., as his executors should in their dis- 
 cretion, will and pleasure think -fit." The case came before Sir 
 John Leach, V. C, who decided, *that the trust was too r-;).-.-.!,-! 
 general and undefined to be executed by the court ; that the ■- -■ 
 executors could not take, because the^ gift was expressly made to them 
 in trust; and the next of kin were therefore entitled. 
 
 So in Fowler v. Garlike,(c) the gift was to executors " upon trust, 
 to dispose of the same at such times, and in such manner, and for 
 such uses and purposes, as they shall think fit ; it being my will, 
 that the distribution shall be left entirely to their discretion." And 
 Sir John Leach, M. R., was of opinion, that this was a plain trust, 
 but too uncertain for the court too execute, and his Honor declared 
 the next of kin entitled. (c) 
 
 To these succeeded the cases of Ellis v. 8e\hj,(d) and Stubbs v. 
 Sargon.(e) In the former case a testator gave a fund to his execu- 
 tors upon certain trusts, and declared it to be his will, that on the 
 failure of those trusts (an event which happened), his said trustees 
 should pay and apply the fund to and for such charitable or other 
 purposes, as they should think fit, without being accountable to any 
 person whomsoever for such their disposition thereof. It was held 
 first by Sir L. Shadwell, V. C, and afterwards on appeal by Lord 
 Cottenham, C, that a trust was created, but so' indefinite an one, 
 that it could not be executed. However there was no resulting 
 trust, as the interest undisposed of fell into the residue.(c?) In 
 Stubbs V. Sargon,(e) the testatrix endorsed a promissory note for 
 £2000 to Sarah Sargon, and sent it to her with a letter in the fol- 
 lowing terms : " The enclosed note of £2000 I have given to Sarah 
 Sargon for her sole use and benefit independent of her husband, for 
 the express purpose of enabling her to present to either branch of 
 my family any interest or principal thereon, as the said Sarah Sar- 
 gon may consider most prudent ; and in the event of the death of 
 Sarah Sargon by this bequest I empower her to dispose of the said 
 sum of £2000 by will or deed to those or either branch of the 
 
 (o) James v. Allen, 3 Mer. 17. (rf) Ellis v. Selby, 7 Sim. 352; S. C. 
 
 (6) Vezey v. Janson, 1 S. & S. 69. on Appeal, 1 M. & Cr. 286. 
 (c) Fowler v. Garlike, 1 R. & M. 232. (e) Stubbs v. Sargon, 2 Keen, 255; 
 
 S. C. on Appeal, 3 M. & Cr. 507. 
 11 
 
162 TRUSTEES BY RESULTING 
 
 family she may consider most deserving thereof. To enable Sarah 
 Sargon my niece to have the sole use and power of the said sum of 
 £2000 due to me by the above note of hand, I have specially en- 
 dorsed the same in her favor." The case came before Lord Lang- 
 dale, M. R., and afterwards on appeal before Lord Cottenham ; and 
 both those learned judges decided, that the gift was in trust, but 
 such a trust as could not be executed, and that the sum secured by 
 the note constituted part of the testatrix's estate, (e) 
 
 In all the cases, that have been mentioned, the declaration of the 
 particular trust was considered to be insufficient from the uncer- 
 tainty of its nature and objects ; but the intention that the donees 
 should in no case be entitled to the beneficial interest was notwith- 
 standing thought to be sufficiently apparent, and they were conse- 
 quently decreed to take the property as trustees by resulting trust. 
 However no resulting trust will be raised and established against 
 the donees, unless the testator has sufficiently expressed his inten- 
 tion, that they should take only in trust for others.' 
 
 Thus in Gibbs v. Rumsey,(/) a testatrix gave " all the rest and 
 residue of the moneys arising from the sale of my said estates, and 
 all the residue of my personal estate, after payment of my debts, 
 r*1 1 81 ^6g^°i^s> ^^-i *uiito my said trustees and executors to be 
 disposed of unto such person and persons, and in such man- 
 ner and form, and in such sum and sums of money, as they in their 
 discretion shall think proper, and expedient." And Sir Wm. Grant, 
 M. R., decided, that there was no sufficient indication of an inten- 
 tion on the part of the testatrix to create a trust, and that the resi- 
 duary donees took the absolute beneficial interest to the exclusion of 
 the heir-at-law and next of kin. 
 
 It is to be observed, that in all these cases, as the claim of the 
 donee is in accordance with the legal title, parol evidence of declara- 
 tions by the donor, &c., will be admitted in favor of the donee for 
 the purpose of rebutting the resulting trust ; and this even where 
 the property is real estate ; ci fortiori such evidence is admissible, 
 
 (e) Stubbs V. Sargon, 2 Keen, 255; (/) Gibbs i;. Rumsey, 2 V. & B. 294 ; 
 S. C. on Appeal, 3 M. & Cr. 507. but see Ellis v. Selby, 1 M. & Cr. 297, 8. 
 
 ' In Hughes v. Evans, 13 Sim. 496, a testator devised all bis freehold estates 
 to his most dutiful and respectful nephew, E., " upon the trusts and for the uses 
 following;" but did not declare any use or trust except as to one of his estates; 
 and the Vice Chancellor held that, from the context of the will and of a codicil, 
 by which a personal charge in favor of the testator's son, was imposed on E., 
 there was no resulting trust in favor of his heir. Where a testator gave the 
 residiie of his estate, afteir payment of debts and legacies, to his executors, "to 
 be disposed of as they think proper," it was held, that the executors took bene- 
 ficially, and that parol evidence was not admissible to show that they took in 
 trust. Ralston v. Telford, 2 Dev. Eq. 253. 
 
OR PEESUMPTIVB TRUST. 163 
 
 where the property consists of personal estate.(5r) But if the donee 
 be plainly and unequivocally declared a trustee in the instrument 
 itself, then parol evidence will not be received for the purpose of 
 contradicting that declaration. (A) 
 
 3d. Where a gift of property is expressed to be made for particu- 
 lar purposes, and those purposes do not exhaust the whole beneficial 
 interest ; the interest, ultra these purposes, will result to the donor ; 
 if it clearly appear, that the donee was intended to take only in a 
 fiduciary character. («)' 
 
 However the authorities seem to establish, that this last is a some- 
 what stronger case in favor of the beneficial title of the donee, than 
 those, where the gift is expressed to be upon trusts applying to the 
 entire property, but which are either not declared at all, or are 
 insufficiently and imperfectly expressed. (1) 
 
 (g) Gainsborough «. Gainsborough, 2 Gladding v. Yapp, 5 Mad. 59; Lang- 
 
 Vern. 253; Walton v. Walton, 14 Ves. ham v. Sandford, 2 Mer. 17; vide post, 
 
 322; Langham v. Sanford, 17 Ves. p. 94. 
 435; and S. C. 2 Mer. 17. (i) 2 Jarm. Pow. Dev. 32. 
 
 (A) Walton v. Walton, 14 Ves. 322; 
 
 (1) Before the statute of 1 Will. IV. c. 40, the mere appointment of an execu- 
 tor gave him prima facie a beneficial title to all the personal estate undisposed 
 of. By that act the executor is converted into a trustee of any residue, not ex- 
 pressly disposed of, for the next of kin, unless otherwise directed by the will. 
 The act therefore does not apply to cases, where there is an express disposition 
 of personal property upon trust or otherwise to a person, who is also appointed 
 executor : and whether the gift in such case will or will not confer any bene- 
 ficial interest must be determined according to the general principles of law, 
 which are considered in the text. It is to be observed that Lord Eldon in the 
 case of Dawson v. Clarke entirely discountenanced the position laid down by 
 Sir Wm. Grant at the original hearing of that case: viz. that an Executor will 
 be entitled as such to the surplus beneficial interest in personal property, which 
 is expressly given either to himself or to some other trustee for purposes which 
 do not exhaust the whole legal interest. See Dawson v. Clarke, 15 Ves. 415; 
 S. C. 18 Ves. 254; and see Mullen v. Bowman, 1 Coll. N. C. C. 197; [Mapp v. 
 Elcock, 2 Phill. 793; post, 123, n. 1; and Elcock v. Mapp, 3 H. L. Cas. 492, 
 where Lord Eldon's doctrine is affirmed.] 
 
 ' Huston V. Moore, 2 Binn. 387. In King v. Mitchell, 8 Pet. 326, a testator 
 devised thus : " In case of having no children, I then leave and bequeath all 
 my real estate at the death of my wife to W. K., son of my brother J. K., on 
 condition of his marrying a daughter of W. and R. T., in trust for the eldest son 
 or issue of said marriage, and in case such marriage should not take place" 
 (then over). It was held that W. K. took no beneficial interest in the estate, 
 but that there was a resulting trust for the heirs-at-law. In Shaeffer's Appeal, 
 8 Barr. 38, there was a devise to A. "for the sum of S6000— $1500 for 
 her own legacy, and $1500 to B. for life," and the residue was disposed of, with 
 the exception of $300. It was held that there was a charge of the whole 
 amount, and that the undisposed of surplus, and the $1500 after the death of B., 
 went at law to the heirs of the testator. 
 
164 
 
 TRUSTEES BY RESULTING 
 
 The question, whether the donee will or will not be entitled to the 
 unexhausted beneficial interest, depends upon the following principle, 
 as laid down by Lord Eldon in King v. Denison.(^) If the gift be 
 to A. and his heirs, charged with the payment of debts, that is a 
 gift to him for a particular purpose, but not for that purpose only. 
 If the gift be upon trust to pat/ debts, that is a gift for the particu- 
 lar purpose, and nothing more. The former is a gift of an estate of 
 inheritance, for the purpose of giving the donee the beneficial inte- 
 rest, subject to the particular purpose ; the latter is a gift for a par- 
 ticular purpose, with no intention of giving any beneficial interest. 
 r*1 1 m ^^^^^ therefore the whole legal estate *is given for the pur- 
 pose of satisfying trusts expressed, which do not exhaust the 
 whole, so much of the beneficial interest as is not exhausted belongs 
 to the heir. But where the whole legal interest is given for a par- 
 ticular purpose with an intention to give to the devisee of the legal 
 estate the beneficial interest ; if the whole be not exhausted by that 
 particular purpose, the surplus goes to the donee, as it is intended 
 to be given to him. 
 
 In illustration of this distinction it will be necessary to state a few 
 of the leading cases ; showing first where a trust has been held to 
 result, and secondly where not. 
 
 In Hobart v. Countess of Suffolk, (Z) a testator devised his lands to 
 three persons to the use of them and their heirs upon the trusts after 
 mentioned. He then directed them upon the death of his wife to 
 convey to certain persons the estates for life ; but made no disposi- 
 tion of the remainder in fee. It was contended for the devisees, 
 that the devise, being to them and their heirs upon the trusts after men- 
 tioned, imported, that they should be trustees only for those pur- 
 poses, and that when those estates were spent, it was to remain to 
 them to their own use. But the Lord Chancellor held that a trust 
 of the remainder in fee resulted to the heir.(Z) 
 
 In another case where a testator devised his manors, advowsons, 
 &c. to trustees, to pay his son 1,000Z. for life, and the rest of the 
 profits to be laid out in land to be settled to certain uses after the 
 son's death ; Lord Hardwicke held, that the right of presentation 
 arising from the advowsons during the son's life was a fruit undis- 
 posed of, and resulted to the heir.(m) 
 
 The rule will be the same, though the interest thus partially dis- 
 posed of consists of a particular portion, severed from the bulk of 
 the property : as where a term of years is created for certain pur- 
 
 (i) In King v. Denison, 1 V. & B. Q) Hobart v. Countess of Suffolk, 2 
 272. [See King v. Mitchell, 8 Peters, Vern. 644. 
 
 349.] (m) Sherrard v. Ld. Harborough, 
 
 Ambl. 165. 
 
OR PRESUMPTIVE TRUST. 165 
 
 poses ■which do not exhaust it, the residue will result to the heir at 
 law.(w)(l) 
 
 Where there is a devise in trust to sell for the payment of debts oV 
 other purposes and no more is said, it is clear that there will be a 
 resulting trust of the residue for the heir. And this point is so clear 
 at the present day against the trustees, that a claim by them is seldom 
 made ; but the question in such cases generally arises between the 
 heir and next of kin or residuary legatee. (o) 
 
 In a late case a general gift of personal estate to A. B. and C, 
 in trust to sell and apply the proceeds towards payment of debts, 
 was followed by a devise of the real estate to the same persons on 
 trust to pay debts, and subject thereto upon certain trusts for the 
 benefit of B. and C. *and other persons; and A. B. and C. p.-,nm 
 were appointed executors, hut there was no further disposi- '- -^ 
 tion of the personal estate. It was held by V. C. K. Bruce, that A. 
 B. and C. were not entitled beneficially to the personalty not re- 
 quired for payment of the testator's debts. (^) 
 
 However according to the observation of Lord Hardwicke, the 
 general rule, that where land is given for a particular purpose, what 
 remains after that particular purpose is satisfied, results, admits of 
 several exceptions. (5) 
 
 Thus where it appears from the words of the instrument, that the 
 property is given subject to the particular purpose expressed, and 
 not for the discharge of that purpose orily^ (according to the dis- 
 tinction of Lord Eldon previously adverted to), the donee will take 
 beneficially what remains after the satisfaction of that purpose. 
 
 In Hill V. Bishop of London, (5) a testator devised a perpetual 
 advowson to Grace Smith, " his honored mother-in-law," willing and 
 desiring her to sell and dispose thereof to certain colleges. Upon 
 the refusal of one, the ofier was to be made to another in a pre- 
 scribed order. Lord Hardwicke observed, that " the devise amounted 
 to no more than this, the testator gives the advowson to Grace Smith, 
 
 (?i) Wych V. Packington, 3 B. P. C. (p) Mullen v. Bowman, 12 Law 
 
 44; Levet v. Needham, 2 Vern. 138. Journ. N. S., Chano. 342; S. C. 1 Coll. 
 
 (0) Countess of Bristol v. Hunger- N. C. C. 197. [See Mapp v. Elcock, 2 
 ford, 2 Vera. 645 ; Holliday v. Hudson, Phill. 793 ; Elcock v. Mapp, 3 H. L. Car. 
 3 Ves. 210; Hill v. Cock, 1 V. & B. 492.] 
 
 173; 2 Jarm. Pow. Dev. 34, 77, and (5) In Hill v. Bishop of London, 1 
 cases there cited ; Robinson u. Taylor, Atk. 619; and see Walton v. Walton. 
 2 Bro. C. C. 589. 14 Ves. 322. 
 
 (1) And so where there is a devise upon a contingency, and no disposition of 
 the intermediate or ulterior interest ; the intermediate interest until the contin- 
 gency happens, and, if it do not happen at all, the entire fee, will result to the 
 heir-at-law. Williams v. Chilly, 3 Ves. 546; Attorney-General v. Bowyer, 3 
 Ves. 725; Nash v. Smith, 17 Yes. 29; Chalmers v. Brailsford, 18 Ves. 368. 
 
166 TRUSTEES BY EESULTING 
 
 but if such or such a college will buy it, then he lays an injunction 
 on her to sell ; and therefore there are two objects of the testator's 
 bounty, Grace Smith and the Colleges ;" and his lordship held that 
 there was no resulting trust for the heir.(r) 
 
 In King v. Demson,(«) the general doctrine was much discussed, 
 trhere a testatrix devised her real estate to her cousin, Mary A. wife 
 of R. A., and to her cousin Arabella J., and their heirs and assigns 
 for ever, subject nevertheless to, and chargeable with, the payment 
 of the annuities thereinafter mentioned ; and she then proceeded to 
 give several annuities. Upon the question whether the devisees were 
 trustees, after paying the annuities, for the heir-at-law. Lord Eldon 
 held they were not ; his lordship considering the intention to be, 
 that they took not merely for the purpose of paying those annuities, 
 but beneficially subject to them.(s) 
 
 It will be observed, that these were cases of a devise of real 
 estate ; but the same rules will also be applied to bequests of per- 
 sonal property, or to a general devise and bequest of both real and 
 personal property, (i) 
 
 In the case of Walton v. 'Walton(M) and Dawson v. Clarke,(M) Sir 
 Wm. Grant decided in favor of the claim of executors to a residue 
 undisposed of; but those decisions proceeded on the ground of their 
 legal title ;(m) and when the latter case was brought before Lord 
 Eldon on appeal, his lordship, though he affirmed the decision of Sir 
 William Grant, rested his judgment on the terms of the gift, and 
 not on the claim of the executor as such ; and the decision must 
 therefore be regarded as an authority on the general question. (a;) 
 
 *In Dawson v. Clarke, there was a general bequest to two 
 '- J persons, who were appointed executors, their heirs, executors, 
 &c., upon trust in the first place to pay, and charged and chargeable 
 with all the testator's debts, &c., and legacies after given. And 
 Lord Eldon applying the same principle, as that laid down in King v. 
 Denison, decided, that this was not a bequest to the executors upon 
 a trust to pay, but a gift to them of the absolute property, subject 
 only to a charge. («/) 
 
 In the recent case of Wood v. Cox,(2) a testatrix bequeathed all 
 her personal estate to C, whom he appointed one of her executors, 
 for his own use and benefit for ever, trusting and wholly confiding in 
 
 (r) Hill V. Bishop of London, 1 Atk. {x) See Mullen v. Bowman, 1 Coll. 
 
 618. N. C. C. 197. [Mappij. Elcook, 2 Phill. 
 
 (s) King V. Denison, 1 V. & B. 260. 793.] 
 
 \t) Southouse V. Bate, 2 V. & B. 396 ; {y) Dawson v. Clarke, 18 Ves. 247; 
 
 Mullen V. Bowman, 1 CoU. N. C. C. and see Southouse v. Bate, 2 V. & B. 
 
 197. 396. 
 
 («) Wahon V. Walton, 14 Ves. 313 ; (z) Wood v. Cox, 1 Keen, 317; S. C. 
 
 Dawson v. Clarke, 15 Ves. 247. on Appeal, 2 M. & Cr. 684. 
 
OR PRESUMPTIVK TRUST. 167 
 
 his honor, that he -would act in strict conformity to her wishes. 
 Afterwards on the same day she executed another testamentary pa- 
 per, containing a list of names of several persons with the sums to 
 be given them, and concluding with a declaration, that such was her 
 wish. Lord Langdale, M. R., at the original hearing held, that C. 
 took no beneficial interest, but was a trustee of the residue for the 
 next of kin ; but this decision was reversed on appeal by Lord Cotten- 
 ham, who decreed C. to take the personal estate for his own use ab- 
 solutely, subject to the payment of the legacies.(2!) 
 
 Where the gift contains expressions, importing an intention to 
 confer a benefit on the donee, it seems that that circumstance will 
 have considerable weight for the purpose of rebutting the resulting 
 trust. Thus where a testator made and constituted his dearly be- 
 loved wife his sole heiress and executrix of his real and personal es- 
 tate, to sell and dispose thereof at her pleasure, and to pay his debts 
 and legacies. Lord Chancellor King held, that the wife was not a 
 trustee for the heir-at-law as to the surplus of the real estate after 
 payment of the debts and legacies. He said, that the terms of the 
 devise in every respect placed the wife in the stead of the heir, and 
 not as a trustee for him. (a) 
 
 So the words "/ree and unfettered" attached to the strongest ex- 
 pressions of trust have been considered to prevent a trust from at- 
 taching to the gift. (6) And in Wood v. Cox(c) the fact, of the gift 
 being expressed to be made to the donee "for his own use and bene- 
 fit for ever," appears to have had very considerable influence upon 
 Lord Cottenham in arriving at the decision, that there was no re- 
 sulting trust in that case. 
 
 Upon the same principle expressions of kindness and afTection, — 
 as where the gift is, to " my dearly beloved wife," have been con- 
 sidered to support the inference, that a beneficial gift was intended.((i) 
 And even where the donee is merely described by the relationship, 
 as "my cousin," or " my brother," it seems, that such a description 
 will not be without its effect, as evidence of the intention to confer a 
 benefit.(e) However, it is not probable that such a circumstance 
 would of itself be allowed to have much effect at the present day.(/) 
 
 Personal circumstances, such as the relationship between the par- 
 
 (2) Wood V. Cox, 1 Keen, 317; S.C. (d) Rogers v. Rogers, 3 P. Wms. 
 
 on Appeal, 2 M. & Cr. 684. 193. 
 
 (o) Eodgers v. Rodgers, 3 P. Wms. (e) Cunningham v Mellish, Prec. 
 
 193. Ch. 31; King k. Denison, 1 V. & B. 
 
 (6) Meredith «. Heneage, 1 Sim. 555. 274. 
 
 (c) Wood V. Cox, 2 M. & Cr. 692. (/) See 2 Jarm. Povir. Dev. 38. [King 
 
 V. Mitchell, 8 Pet. 326.] 
 
168 
 
 TRUSTEES BY KESULTINQ 
 
 r*1221 *'^^' *^'^^ ^^^ qualifications of tlie donee to discharge the 
 office of trustee, will also be taken into consideration, for the 
 purpose either of supporting or rebutting the trust in these cases. 
 
 Thus in Hobart v. Countess of Suffolk,(^) the fact of the devise 
 being to three persons, two of whom were relations to the testator, 
 and the other a stranger, was adverted to by the court in deciding in 
 favor of the trust. (^) 
 
 And the donee's being an infant or married woman, and therefore 
 unfitted to discharge the duties of a trustee, will have some weight 
 with the court in a doubtful case.(A) But where from the whole con- 
 text of the instrument a trust is created, those circumstances alone 
 will not have the effect of repelling it.(«) 
 
 In Williams v. Jones(^) the fact, of a child being appointed execu- 
 trix, was considered by Sir Wm. Grant, M. R., to be a very strong 
 circumstance in favor of her claim, to take the residue beneficially. 
 He there says, " A very little evidence in aid of that circumstance is 
 sufficient. It is almost sufficient of itself, without any evidence, to 
 justify the conclusion. "(A;) And so in the recent case of Cook v. 
 Hutchinson(Z) a father, an old man eighty years of age, made an in- 
 denture between himself and his son, which recited, that the father 
 was desirous of settling the property therein comprised, so as to make 
 the same a provision for himself during his life, and for his wife and 
 her children by him after his decease, and then released and assigned 
 the property to the son, his heirs, executors, &c., to hold upon to and 
 for the trusts intents and purposes thereinafter declared concerning 
 the same. The father proceeded to declare the trust of part of the 
 property in favor of his wife, a daughter, and a niece ; but no trust 
 was declared as to the surplus. And it was held by Lord Langdale, 
 M. R., considering the relation between the parties, and the object 
 and purport of the instrument, that the surplus did not result to the 
 grantor, but belonged beneficially to the son.(Z) It will be observed 
 that the question in this last case arose upon the construction of a 
 deed. The presumption in favor of a resulting trust is stronger in 
 the case of a deed, than of a gift by will, which of itself implies 
 bounty, and will be treated with greater latitude of construction. (m) 
 The decision in Cook v. Hutchinson must therefore be looked upon as 
 a strong authority against, the existence of a resulting trust, in case 
 of a pairtial disposition of the beneficial interest, where the donee is a 
 child of the donor. 
 
 The fact, that one portion of the property is given to persons as 
 
 (g-) Hobart v. Countess of SufTolk, 2 (i) King v. Denison, 1 V. & B. 275. 
 
 Vern. 644. W Williams v. Jones, 10 Ves. 83. 
 
 (fe) Blinkhorn v. Feast, 2 Ves. sen. (0 Cook v. Hutchinson, 1 Keen, 42. 
 
 27; Williams v. Jones, 10 Ves. 77. (m) Sidney v. Shelly, 19 Ves. 358. 
 
OR PRESUMPTIVE TRUST. 169 
 
 trustees, does not necessarily involve a presumption, that the rest is 
 to be held by them upon trust ; where the gift of that part, which is 
 clearly a trust, is separate and distinct from the gift of the residue.(«) 
 
 And so where distinct gifts of real and of personal estate are con- 
 tained in the same will, and the circumstances are such, as to make 
 the donees of the personalty trustees for the next of kin ; it does not 
 follow that the devisees of the real estate shall also hold in trust for 
 the heir-at-law, although the same expressions may be attached to 
 the gift in both cases, (o) 
 
 *But where there is a gift jointly to several persons, and r^-. 031 
 one of them is clearly a trustee, the others will also take in L 
 that character. For, as Lord Alvanley has observed, there is no 
 instance of making one trustee, and the other not.(^) 
 
 Before the recent statute of 1 William lY. c. 40, it had been long 
 established, that an express legacy to an executor would make him 
 a trustee of any residue undisposed of for the next of kin ; the 
 supposition being, that by giving him a part, the testator showed 
 that he did not intend him to take the whole. (g')^ 
 
 This last doctrine and the principle upon which it was introduced, 
 was considered to be very unsatisfactory, and the courts have conse- 
 quently endeavored as much as possible to pare down its applica- 
 tion. (r) Therefore although the reasoning, on which it proceeded, 
 would seem to apply with equal force, whether the executor took the 
 property, of which the legacy forms part, by express residuary gift, 
 or by virtue of his appointment as executor, it has notwithstanding 
 
 (n) Pratt «. Slacden, 14 Ves. 193. Wms. 545; Abbott u. Abbott, 6 Ves. 
 
 (0) King V. Denison, 1 V. & B. 277. 343; Langham v. Sanford, 17 Ves. 435, 
 
 (p) White V. Evans, 4 Ves. 21 ; Mil- and 2 Mer. 6; Bull v. Kingston, 1 Mer. 
 
 nes V. Slater, 8 Ves. 295; Sadler^. Tur- 314. 
 
 ner, ib. 617; Williams x;: Jones, 10 Ves. (r) See Lord Eldon's observations, 
 
 77. in King v. Denison, 1 V. & B. 277. 
 
 (9) Faringdon v. Knightly, 1 P. [Ante 118, note (1)] 
 
 ' In several of the United States the common law doctrine, which gives to the 
 testator the undisposed of residuary estate of his testator, has been repudiated : 
 and he is declared merely trustee for the next of kin. Wilson v. Wilson, 3 
 Binney, 559 ; Richardson v. Richardson, 9 Barr. 431 ; Hays v. Jackson, 6 Mass. 
 153; Hill?;. Hill, 2 Hayw. R. 208; Donn v. Allen, 1 Penning. 44, 2 Lomax Exr. 
 184, &c.; Pamp v. Mingo, 4 Leigh, 163. In Pennsylvania, (Act of 1807, Dun- 
 lop, 241), New York (Rev. Stat. Part II., tit. IIL, art. 3, §79), and Delaware 
 (Rev. Code (1852), No. 1843), there are express statute provisions which ex- 
 clude the executor. And it may be doubted whether in general in any of the 
 stales, under their statutes of distribution, he would be permitted to take benefi- 
 cially without express words. Story, Eq. Jur. § 452. In Darrah v. McNair, 1 Ashra. 
 240, it was held under the Pennsylvania act, that where there vrere no next of 
 kin the executor took as trustee for the commonwealth ; which, indeed, is also 
 the rule in England. Taylor v. Haygarth, 14 Sim. 8; Powell v. Marett, a-Er* ■ 
 J. Ch. 408. 
 
ITO TRUSTEES BY KESULTING 
 
 been expressly decided that a legacy to persons, -ffho are appointed 
 executors, though given to them expressly "for their care and 
 trouble," will not exclude the claim of those persons to take the 
 residue beneficially ; if they claim not in the character of executors, 
 hut under a direct disposition to them personally as residuary lega- 
 tees. 
 
 Thus in Gibbs v. Eumsey,(s) a testatrix devised and bequeathed 
 her real and personal estate to two persons their heirs, executors, 
 &c., upon trust to sell ; and out of the money to arise from the sale, 
 as well as her other money, &c., she gave several legacies, and among 
 them ^100 to each of her trustees for their care and trouble : and 
 she gave and bequeathed all the rest and residue of the moneys 
 arising from the sale of her said estates and of her personal estate 
 after payment of debts, legacies, &c., unto her said trustees and 
 executors by name, to be disposed of unto such person and persons 
 and in such manner, &c., as they in their discretion should think pro- 
 per. And she appointed the same two persons her executors. The 
 next of kin of the testatrix contended that there was a resulting 
 trust of the residue for their benefit : but Sir Wm. Grant, M. R., in 
 deciding against that claim, said, " this testatrix, having created a 
 trust to sell, gives many particular legacies, and among them iSlOO 
 to each of her two trustees for their care and trouble in the execu- 
 tion of the trusts of the will. That is undoubtedly sufficient to 
 exclude any claim as executors ; but they claim not in that charac- 
 ter but under a direct disposition to them as residuary legatees," and 
 his Honor held that the residuary legatees took the residue for their 
 own benefit. (s) 
 
 Moreover there can be no doubt, but that the court would extend 
 to the executor, taking by a substantive bequest, the benefit of all 
 the distinctions that have been taken in favor of the executor, who 
 takes merely by virtue of his appointment. Therefore where the 
 legacy is given to the executor by the will, and the general gift in 
 trust by a subsequent codicil :(<) *or where the legacy is 
 L J contingent and reversionary :(m) or specific, (a;) there would 
 be room to contend that the gift of the legacy did not affect the 
 claim of the legatee to the ulterior beneficial interest, which is left 
 undisposed of. 
 
 And it would seem that a similar distinction might be maintained, 
 where the particular legacy is something excepted out of an inte- 
 
 (s) Gibbs V. Eurtisey, 2 V. & B. 294. (x) Blinkhom v. Feast, 2 Ves. sen. 
 
 («) Langham v. Sanford, 2 Mer. 21. 27 ; Nisbelt v. Murray, 5 Ves. 149, 158; 
 
 («) Lynn v. Beaver, T. & R. 63 ; but but see Southcott v. Watson, 3 Atk. 226 ; 
 
 see Seley i;. Wood, 10 Ves. 71; and and Martin d. Rebow, 1 Bro. C. C. 154. 
 Oldman v. Slater, 3 Sim. 84. 
 
OR PRESUMPTIVE TRUST, 171 
 
 rest given to another person •.{y) or an aliquot part, the other parts 
 being given to other persons :(z) or a bequest for life with remain- 
 der over.(a) But if there be no such ulterior imitation, a bequest for 
 life will have the same effect in raising the presumption of a trust as 
 any other legacy.(6) 
 
 So where the gift is to several persons jointly, a legacy to one or 
 some of them only, or unequal legacies to all of them, will raise no 
 equity for the next of kin.(c) But where equal pecuniary legacies 
 are given to all, the presumption against them will be the same, as 
 in the case of a legacy to a single donee. (cZ) 
 
 The same reasoning, viz., that a person cannot be intended to 
 take a part and the whole, evidently has no application to a devisee 
 of real estate, to whom a pecuniary legacy is also given. Accord- 
 ingly Mr. Jarman in his edition of Powell on Devises observes, that 
 "it is clear upon principle, that a legacy to a devisee will not make 
 him a trustee ; unless perhaps where it is given out of a fund, to 
 be formed out of the devised estate ; though even this is not free 
 from doubt, "(e) 
 
 On the other hand it is clear, that the converse case, of a gift of 
 a legacy to the next of kin, will not of itself operate to exclude 
 them from taking by virtue of a resulting trust.(/) And so a legacy 
 to the heir-at-law, though given expressly out of the money, to 
 arise from the sale of the devised estate, will not prevent the trust 
 of the residue resulting to him.(^) However in Eogers v. Rogers,(A) 
 Lord Chancellor King, in deciding in favor of the claim of a devisee 
 in opposition to that of the heir, seems to have attached no little 
 importance to the fact of a legacy having been given to the heir.(/i) 
 
 Unless the gift, whether of real or personal property, be such as 
 to create a presumption against the title of the donee to its benefi- 
 cial enjoyment, parol evidence will not be admitted for the purpose 
 of establishing a resulting trust in favor of the heir-at-law or next 
 of kin in opposition to the claim of the donee.^ This was decided 
 
 (?/) Griffith u. Rogers, Free. Ch. 231. (e) 2 Jarm. Pow. Dev. 40. [See 
 
 (z) Jones V. Westcomb, 1 Eq. Ca, Hennerthoty's estate, 4 Harr. (Penn.) 
 
 Abr. 245, pi. 10. 406.] 
 
 (a) Granville v. Beaufort, 1 P. Wms. (/) Farington v. Knight, 1 P. Wras. 
 
 114; see Nourse v. Finch, 1 Ves. jun. 545; Rutland v. Rutland, 2 P. Wras. 
 
 344. • 213; Andrews v. Clark, 2 Ves. sen. 
 
 (6) Touch'iJ. Lambert, 4 Bro. C. C. 326. 162 ; North v. Pardon, ib. 495. 
 
 (c) Blinkhorn v. Feast, 2 Ves. sen. (g-) Starkey v. Brooks, 1 P. Wms. 
 
 27 ; Sadler v. Turner, 8 Ves. 617 ; Raw- 390 ; Randal v. Bookey, 2 Vern. 425 : 
 
 lins V. Jennings, 13 Ves. 39. [Russell v. and Free. Ch. 162 ; Kellelti;. Kellett, 1 
 
 Clowes, 2 Coll. C. C. 648.] Ball & B. 543; S. C. on appeal, 3 Dow. 
 
 {d) Petit V. Smith, 1 P. Wms. 7 ; P. C. 248. 
 Gibbs V. Rumsey, 2 V. & B. 294. (A) Rogers v. Rogers, 3 P. Wn>s. 194. 
 
 ' Ralston v. Telford, 2 Dev. Eq. 253, stated ante, page 107, note. 
 
172 TRUSTEES BY RESULTING 
 
 in the case of the survivor of several executors, to whom unequal 
 legacies had been given. The surviving executor in virtue of his ap- 
 
 [*125] 
 
 pointment claimed the whole of the residue *uhdisposed of. 
 
 The representative of the testator's widow, who had been 
 also one of his executors, for the purpose of displacing, this 
 claim, offered parol evidence of the testator's intention to dispose of 
 this residue in favor of his wife. But Sir Wm. Grant, M. R., held, 
 that no presumption existed against the legal title of the defendant 
 (the surviving executor), and rejected the evidence.(i) And the 
 principle established by this decision will d fortiori be applied to 
 the rejection of parol evidence ; where the legal title which it is the 
 object of such evidence to impugn, is founded upon an express gift 
 or limitation to the donee, unaffected by any adverse presumption. 
 
 On the other hand, where the presumption of a resulting trust in 
 these cases is once created, parol evidence will be admitted, in sup- 
 port of the legal title of the donee, to rebut the trust.(l) The ad- 
 missibility of parol evidence for this purpose has been so long and 
 firmly established, that in the train of cases on the subject, the ques- 
 tion has not been raised on the principle itself, but on the applica- 
 tion of it ; the doubt being whether on the whole, and sometimes the 
 conflicting, evidence, the intention in favor of the donee is clearly 
 made out. For it is settled, that parol evidence being once let in, 
 in support of the legal title, it may be opposed by similar evidence 
 on the other side ; and if upon the whole evidence the intention re- 
 mains doubtful, the equity in favor of the heir-at-law or next of kin 
 will prevail, the presumption not being rebutted. (A;) 
 
 It is to be observed however ; that the rule, which admits this 
 evidence, has been viewed with great disapprobation ; and in modern 
 
 (i) White V. Williams, 3 V. & B. 72; Wms. 7 ; Nourse v. Fiach, 1 Ves. jun. 
 
 and see Langham t). Sanford, 2 Mer. 344; Walton «. Walton, 14 Ves. 318; 
 
 17. Langham v. Sanford, 2 Mer. 6; Glad- 
 
 (k) Docksey v. Docksey, 3 Bro. P. ding v. Yapp, 5 Mad. 56 ; see 1 Jarm. 
 
 C. 39; Mallahar v. Mallabar, Cas. Pow. Dev. 499, and note 2. 
 Temp. Talb. 79; Petit v. Smith, 1 P. 
 
 (1) The statute ] Will. IV. c. 40, enacts that executors shall be deemed to be 
 trustees of any residue not expressly disposed of, unless it shall appear by the will 
 or any codicil thereto, that they were intended to- take such residue beneficially. 
 It is conceived therefore, that since that statute, parol declarations or any other 
 evidence delwrs the will, cannot under any circumstances be received in support 
 of the claim by an executor as such to the residue undisposed of. We have seen 
 before that the statute does not apply to cases, where there is an express disposi- 
 tion of the residue to an executor personally. [And so it was held in Love o. 
 Gage, 8 Beav. 472; 9 Jur. 910.] 
 
OR PRESUMPTIVE TRUST. 173 
 
 times, it has scarcely ever been received, without eliciting some ex- 
 pressions of animadversion. (?) 
 
 It seems not to be absolutely necessary that the evidence should 
 be contemporaneous with the will : although the contrary seems' to 
 have been thought by Lord Macclesfield ;(m) and Lord Alvanley in 
 one case was strongly disposed to disregard altogether evidence of 
 expressions declaratory of what the testatrix intended to do.(«) 
 
 But it is now settled, that parol declarations subsequent, or even 
 anterior to the will are admissible. (o) Such declarations however 
 are not all entitled to equal weight. Lord Eldon in Trimmer v. 
 Bayne,(^) ^addressing himself to this subject, said, " I fear r-^^„p:-\ 
 there is no possibility of saying, parol declarations, previous '- -■ 
 and subsequent, are not admissible (though Lord Coke would hardly 
 have been brought to let them in), as well as declarations at the time ; 
 but there is a great difference on the point, whether they are all 
 alike weighty and efficacious. A declaration at the time of making 
 the will is of more consequence than one afterwards ; and a declara- 
 tion after the will, as to what he had done (I am speaking as to the 
 time merely), is entitled to more credit, than one before the will as 
 to what he intended to do ; for that will may very well be altered ; 
 but he knows what he has done, and is much more likely to speak 
 correct as to that, than as to what he proposes to do. Though these 
 parol declarations are all alike admissible; whether consisting of 
 conversation with people, who have nothing to do with it ; people 
 making impertinent inquiries, and drawing from him angry answers, 
 or in whatever form ; they are all evidence. But they are entitled 
 to very different credit and weight according to the time and cir- 
 cumstances. "(p) 
 
 So in Langham v. Sandford,(5') Lord Eldon reiterated his opinion, 
 " that in such cases the best evidence is the contemporaneous evi- 
 dence, and that all the rest weighs very little in the scales. "(g') 
 
 In like manner, where the gift is to two or more persons jointly, 
 and the presumption of their all being trustees arises from the 
 circumstance of the trust being established against one of them ; 
 parol evidence will be admitted on behalf of the others to rebut the 
 trust, (r) 
 
 {I) See the observations of Mr. Jus- (n) In Clennell v. Lewthwaite, 2 
 
 tice BuUer, in Nourse ■;;. Finch, 1 Ves. Ves. jun. 474. 
 
 jun. 357; of Lord Alvanley, in Clen- (o) Lake ■«. Lake, 1 Wils. 313; and 
 
 nell u. Lewthwaite, 2 Ves. jun. 475 ; of Ambler, 126; Walton v. Walton, 14 
 
 Lord Eldon, in Trimmer v. Bayne, 7 Ves. 318, 323; Gladding v. Yapp, 5 
 
 Ves. 518; and in Langharrli;. Sandford, Mad. 56. 
 
 2 Mer. 16; and see 1 Jarm. Pow. Dev. (p) Trimmer v. Bayne, 7 Ves. 520. 
 
 505, n. (5) Langham v. Sandford, 2 Mer. 23. 
 
 (m) In Duke of Rutland v. Duchess (r) Williahjs v. Jones, 10 Ves. 77. 
 of Rutland, 2 P. Wms. 2i5. 
 
174 TRUSTEES BY RESULTING 
 
 Previously to the statute of 1 Will. IV. it seems, that if an exe- 
 cutor could show evidence of the testator's intention to exclude the 
 next of kin, that would have been sufficient to establish his claim 
 to the residue, without any evidence of a direct intention in favor of 
 the executor.(s) The case would be doubtless stronger for an exe- 
 cutor claiming under an express gift to himself; and it would seem 
 from analogy to be applicable to a similar question between a devi- 
 see and the heir-at-law. 
 
 But those cases, which raise against the donee a presumptive trust, 
 which may be rebutted by parol evidence, are carefully to be dis- 
 tinguished from those, in which the instrument contains clear de- 
 monstrative evidence of an intention, that he should take only as 
 trustee. For in the latter cases, to admit evidence in opposition to 
 the trust, would be to contradict the terms of the instrument. 
 
 Therefore where there is a devise of real estate or a gift of a resi- 
 due of personal estate expressly in trust, or coupled with directions 
 that are held to be equivalent to the declaration of a trust, parol 
 evidence is inadmissible in support of the claim of the trustee to the 
 beneficial interest, (i) 
 
 In questions respecting the claim of executors as such to the resi- 
 due undisposed of, before the statute of 1 Will. IV., it seems to have 
 been a point of considerable nicety to determine, what would or 
 w^ould not be such a conclusive declaration of a trust, as to exclude 
 parol evidence in support of the claim of the executor. A legacy to 
 an executor "for *his care and trouble," has been con- 
 '-"'-' sidered conclusive against the executor for this purpose :(m) 
 but an inchoate residuary clause •,[x) or a direction to keep an ac- 
 count ;(«/) was held not to exclude the executor, from offering parol 
 evidence in support of his claim. 
 
 However since that statute such questions cannot again arise upon 
 the claim of an executor to a residue merely in virtue of his appoint- 
 ment. And the decisions just mentioned do not apply to the case of 
 an express gift to an executor personally, which is the only case, that 
 can arise in future. For in Gibbs v. Rumsey,(3) Sir William Grant, 
 M. R., decided, that, where the residue is expressly given to the exe- 
 cutors, a legacy to them, though/or their care and trouble, will not 
 exclude them from taking that residue beneficially. 
 
 It is to be observed that in all these cases, where there is a direc- 
 
 (s) Batcheller v. Searl, 2 Vern. 737 ; and 2 Mer. 17 ; Gladding v. Yapp, 5 
 
 Brassbridge v. Woodroffe, 2 Atk. 68; Mad. 59. 
 
 in Langham v. Sandford, 2 Mer. 10, (u) Langham v. Sandford, 17 Ves. 
 
 this point was raised, but not decided. 443; see 1 Jarm. Pow. Dev. 507, n. 
 
 (t) Walton V. "Walton, 14 Ves. 322 ; (a;) Nourse v. Finch, 1 Ves. jun. 344. 
 
 Langham v. Sandford, 17 Ves. 442; ly) Gladding i;. Yapp, 5 Mad. 56. 
 
 (s) Gibbsi). Rumsey, 2 V. &B. 294. 
 
OK PRESUMPTIVE TRUST. 175 
 
 tion in the will to convert real estate into money, which is then left 
 wholly or partially undisposed of; the unexhausted interest, whether 
 the estate be actually sold or not, will result to the heir as real estate, 
 and not to the next of kin as personalty. The heir is excluded 
 not by the direction to convert, but by the disposition of the converted 
 property, and so far only as that disposition extends.(a)^ And the 
 right of the heir in these cases will not be affected by the produce of 
 the real estate being blended with the personal estate in a joint fund, 
 which is made the subject of the attempted or partial disposition. (J) 
 
 However a material distinction has been established between the 
 conversion of money into land, and that of land into money. For it 
 has been held, that where money has been directed to be laid out in 
 land, which is disposed of for a limited interest only ; the money, or, 
 if the money be laid out, the land ultra, that interest goes, as real 
 estate undisposed of, to the heir-at-law. (c) 
 
 Thus where a testator directed £1,000 to be laid out in the pur- 
 chase of lands, that the rents and profits might come to his nephew 
 for life, but made no ulterior disposition of the lands ; it was held, 
 that the reversion after the nephew's death resulted to the testator's 
 heir-at-law.(cZ) 
 
 It has been remarked by Mr. Jarman in his edition of Powell on 
 Devises, that it seems to be an anomaly, that the heir should be held 
 to be entitled to the ulterior interest in land, directed to be converted 
 into money, and also in money directed to be laid out in land, as was 
 decided in Chapman v. Fletcher, (t^) It is blowing hot and cold in 
 
 (a) Hill t). Cock, 1 V. &. B. 173; 2 -Pleasants, 4 Ired. Eq. 321 j Wood v', 
 
 Jarm. Pow. Dev. 77, and cases cited; Cone, 7 Paige, Ch. 472.] 
 
 Wilson V. Major, 1 1 Ves. 205 ; Berry v. (c) 2 Jarm. Pow. Dev. 74. [Thorn v. 
 
 Usher, 11 Ves. 87 ; Smith v. Claxton, 4 Coles, 3 Edw. Ch, 330 ; see Hawley v. 
 
 Mad. 484. James, 5 Paige, 323.] 
 
 (6) Hill •«. Cock, ubi supra; Robinson (d) Fletcher i). Chapman, 3 Bro. P. 
 
 V. Taylor, 2 Bro. C. C. 589 ; Dixon v. C. 1. 
 Dawson, 2 S. fc S. 327. [Lindsay v. 
 
 1 See Burley ■«. Evelyn, 16 Sim. 200, 12 Jur. 712; Craig «. Leslie, 3 Wheat. 
 564 : Burr v. Sims, 1 Whart. 252 ; Lindsay v. Pleasants, 4 Ired. Eq. 320 ; Morrow 
 V. Brenizer, 2 Rawle, 185 ; Pratt v. Taliaferro, 3 Leigh. 419 ; North v. Valle, Dud- 
 ley, Eq. 212 ; Smith v. McCrany, 3 Ired. Ch. 204 ; Wood v. Cone, 7 Paige, Ch. 
 472; Tilghman's estate, 5 Whart. 44; Owens i). Cowan, 7 B. Monroe, 152; Snow- 
 hill V. Snowhill, Ex'r. 1 Green. Ch. 30 ; Bogert v. Herteli, 4 Hillj 501. An express 
 provision in a will that on the sale of real estate which was directed, the trustees 
 should stand possessed of the proceeds as a fund of personal and not of real 
 estate, for which purpose such proceeds or any part of them, should not in any 
 event, lapse or result for the benefit of the heir-at-law, will not aifect the right of 
 the heir to an undisposed of surplus. Fitch v. Weber, 6 Hare, 45. Att.-Gen. v. 
 Henchman, 2 R. & M. 221; Gordon v. Atkinson, 1 De Gex. &c. 478. See 
 Blackman v. Gordon, 2 Richardson, Eq. 42. 
 
176 
 
 TRUSTEES BY RESULTING 
 
 favor of the heir ; for the principle, which would entitle him to the ul- 
 terior interest in the one case, would exclude him in the other, (e) 
 
 The principle of Chapman v. Fletcher(ci) will not, as we shall see 
 presently, be applied to cases, where the particular disposition of the 
 money, directed to be invested in land, wholly faiU; for in such cases 
 it has been held, that the interest thus lapsing belongs to the next of 
 
 r*1281 '^^"' *^'^*^ '^°'' *° ^^^ Heir-at-law. (e)^ It seems very difficult 
 -■ upon principle to draw any distinction between an interest 
 originally undisposed of, and one becoming undisposed of by subse- 
 quent failure or lapse ; and it is therefore submitted, that if the ques- 
 tion decided in Chapman v. Fletcher, should occur at the present 
 day, it is not improbable that the recent decisions in Hereford v. 
 Ravenhill, and Cogan v. Stephens, as being more in accordance with 
 the true principle, would be followed as authorities in preference to 
 that of Chapman v. Fletcher. (1) 
 
 We must not omit to mention the important exception that exists 
 with respect to the general doctrine of resulting trusts on an imper- 
 fect or partial disposition of property, where the gift is to a charity.. 
 
 If property, whether real or personal, be effectually given either 
 by deed or will to trustees for charitable purposes generally, it has 
 been long established, that there will be no resulting trust for the 
 heir-at-law or next of kin of the donor ; although the particular pur- 
 pose, to which the property is to be applied, is not declared at all, or 
 if declared, does not extend to exhaust the whole beneficial interest, 
 either at the time, or in consequence of a subsequent increase in the 
 value of the property, in such cases the donees will take the interest 
 
 (d) Fletcher v. Chapman, 3 Bro. P. (c) Hereford v. Ravenhill, 1 Beav. 
 C. 1. 487, n.; S. C. 5 Beav. 51: Cogan i). 
 
 (e) 2 Jarm. Pow. Dev. 75,' Stephens, ib. 486. 
 
 (1) The case of Hereford v. Ravenhill came subsequently before the court on 
 further directions, and on that occasion Lord Langdale, M. R., decided that a be- 
 quest of personal estate to be invested in the purchase of land, and held on 
 trusts thai became exhavMed, was on the same footing as one, where the trusts 
 were void, and that the residuary legatee and not the heir was entitled in both 
 cases. It is to be observed however that in that case the fund had not been ac- 
 tuaUy invested in land. Hereford v. Ravenhill, 5 Beav. 51. 
 
 ' Hawley v. James, 5 Paige, 323. See Wharton v. Shaw, 3 W. & S. 124. But 
 in Thorn v. Coles, 3 Edw. Ch. 330, where there was a total failure of the purposes 
 for which money was directed to be invested in land, this distinction was not 
 noticed ; and the money was held to result as real estate to the heirs. The money, 
 however, in this case would appear from the opinion of the court to have been 
 the proceeds of real estate. 
 
OK PRESUMPTIVE TRUST. 177 
 
 undisposed of as trustees for charitable purposes to be ascertained and 
 determined by the Court of Chancery. (/)* 
 
 Thus it was laid down in a case in Freeman " that if a man devises 
 a sum of money to such charitable uses, as he shall direct by a co- 
 dicil, to be annexed to his will, or by a note jn writing ; and after- 
 wards leaves no direction, neither by note, nor codicil ; the Court of 
 Chancery hath power to dispose of it to such charitable uses as the 
 court shall think fit."((jr) And in Att.-General v. Syderfen,(^) which 
 was a case of similar description, the court held the property to be 
 applicable in charity to be declared by the king's sign manual.(A) 
 
 So where a testator having given all his estate for charitable pur- 
 poses generally, proceeded to declare a particular scheme, which did 
 not exhaust the whole income of the estate, it was held that there was 
 no resulting trust of the surplus, but that the whole was applicable 
 in charity, (i) 
 
 And though there may not be any such general declaration de- 
 voting the whole estate in charity, yet if there be a disposition either 
 by deed or *will, by which every portion of the property is p^,,-. gq-i 
 applied and exhausted at the <«me in favor of some charitable 
 purpose : a surplus, arising from a subsequent increase in the value of 
 the property, will not result to the heir-at-law, or next of kin of the 
 donor, and still less will it belong to the donees in trust, but it will 
 also be applicable to charitable purposes. (A;) And it is immaterial, 
 that the property is given to trustees with directions to apply a cer- 
 tain specified sum yearly to charitable purposes, if that particular 
 sum at the time of such direction exhaust the whole income of the 
 
 (/) Cooki). Dunkenfeld, 2 Atk. 567; (i) Att.-Gen. v. Arnold, Show. P. C. 
 
 Thetfoid School case, 8 Co. 130; Att.- 22; and see Att.-Gen. v. Coopers' 
 
 Gen. D.Arnold, Show. P. C. 22; Mog- Comp. 3 Beav. 34; Mills v. Farmer, 1 
 
 gridge D.Thackwell, 7 Yes. 73; Alt.- Mer. 55; Pieschell «. Paris, 2 S. & St. 
 
 Gen. 0. Mayor of Bristol, 2 J. & W. 308 ; 384. 
 
 Mills V. Farmer, 1 Mer. 55 ; Att.-Gen. (k) Att.-Gen. v. Caius Coll. 2 Keen, 
 
 V. Haberdasher's Comp. 4 Bro. C. C. 150; Att.-Gen. «. Johnson, Ambl. 190; 
 
 103. Att.-Gen. v. Sparks, ib. 201 ; Att.-Gen. 
 
 (g-) 2 Freem. 261, stated in 7 Ves, v. Haberdashers' Comp. 4 Bro. C. C. 
 
 73 ; and 1 Mer. 59. 103 ; Att.-Gen. v. Coopers' Comp. 3 
 
 (h) Att.-Gen. v. Syderfen, 1 Vern. Beav. 34 ; Att.-Gen. v. Catherine Hall, 
 
 224 ; S. C. 7 Ves. 43 n. ; Mills v. Farm- Jac. 381 ; Att.-Gen. v. Drapers' Comp. 
 
 er, 1 Mer. 94 ; Commissioners of Chan- 4 Beav. 67 ; Att.-Gen. v. Christ's Hos- 
 
 cery Donations v. Sullivan, 1 D. & W. pital, id. 73. 
 501. 
 
 • The principles of the statute of Elizabeth, so far as they are applicable in 
 this country, are in force in many of the United States. But the doctrine of Cy- 
 pres stated in the text, has never been adopted, from ^want of pjiwer in the 
 courts of equity to apply it in practice. See ante, note ^age ^^. /y 
 
 12 ' ' 
 
178 
 
 TRUSTEES BY RESULTINa 
 
 estate.(Z) And although the trustees are made answerable for the 
 payment of the specified sum to the charity, in case the value of the 
 estate should prove insufficient for that purpose ; yet it does not ne- 
 cessarily follow on that account, that they will be entitled to take 
 the surplus for their own benefit, in case of the subsequent increase 
 in the value of the property.(m) 
 
 It has been observed both by Lord Hardwicke(w) and Lord El- 
 don, (o) that at the time this doctrine with respect to charities was 
 established, the right of the heir-at-law under a resulting trust was 
 not sufficiently understood, or it could never have been adopted. 
 Both those great judges however acknowledged it to be a principle, 
 that could not then be shaken. 
 
 However if a man give an estate to trustees, and take notice, that 
 the payments are less than the amount of the rents ; no case has 
 gone so far as to say, that the cestui que trust, even in the case of a 
 charity, is entitled to the surplus. There would either be a resulting 
 trust, or it would belong to the person to whom the estate is given.(») 
 
 And if the trustees, to whom the property is given for the purpose 
 of being applied in charity, be themselves specified as objects of the 
 donor's charity, it seems, that they will themselves be entitled to a 
 surplus, arising from the increased value of the estate.(5') But this 
 will be the case, only where the donees in trust come clearly within 
 the charitable purposes contemplated by the donor ; and if that be 
 not the case, the donees, though themselves a charitable institution, 
 cannot sustain any claim to the increased value, which will be appli- 
 cable for the benefit of the original objects according to the ordinary 
 rule.(»-) 
 
 And if a specified portion of the income of the estate be given 
 beneficially to the donees in trust themselves, they will not be entitled 
 to the whole of the surplus occasioned by the improved value, but 
 will benefit rateably with the other objects of the testator's bounty.(«) 
 
 But if there be a gift to a company or to individuals, in trust to 
 r*1^m *PP^y *certain specified sums to charitable purposes, and 
 '■ there is an express or implied disposition of the residue, after 
 
 making those payments, to the donees for their own benefit ; the 
 
 Q) Att.-Gen. v. Christ's Hospital, 4 (o) In Att.-Gen. v. Mayor of Bristol, 
 
 Beav. 73 ; Att.-Gen. t). Mayor of Coven- 2 J. & W. 307. 
 
 try, 2 Vern. 397 ; S. C. 2 J. & W. 305, (p) Per Lord Eldon, in 2 J. & W. 
 
 n.; Att.-Gen. u. Johnson, Ambl. 190; 307; and see 2 Russ. 241. 
 
 Att.-Gen. ■w.Tonner, 2 Ves. 1; Att.-Gen. (5) Att.-Gen. v. Mayor of Bristol, 3 
 
 V. Minshull,4Ves. 11; Att.-Gen. D.Caius Mad. 319; S. C. 2 J. & W. 294. 
 
 Coll. 2 Keen, 150. (r) Att.-Gen. v. Christ's Hospital, 4 
 
 (m) Att.-Gen. v. Merchant Vent. So- Beav. 73. 
 
 ciety, 5 Beav. 338. 4 («) Att.-Gen. v. Gains Coll. 2 Keen, 
 
 (n) In Att.-Gen. v. Johnson, Ambl. 150; Att.-Gen. v. Drapers' Cotnp. 4 
 
 IPO. Beav. 67. 
 
OE PRESUMPTIVE TRUST. 179 
 
 particular payments ivill not be increased out of the improved value, 
 but the surplus will belong beneficially to the donees. (i) 
 
 Where there is a general gift for charitable purposes, but the par- 
 ticular purpose expressed is such, that by the law of England it 
 cannot take effect, the rule will be the same, as if there had been no 
 declaration of the particular purpose, and the property will be 
 applied in charity, to be determined by the sign manual of the 
 crown.(M) 
 
 However cases of this last description, must be distinguished from 
 particular gifts to superstitious uses, within the statute 1 Edw. VI. 
 c. 14, such as gifts for the maintenance of obits or prayers for the 
 dead ; which by the express term of the statute are forfeited to the 
 crown. (a;) And also from similar devises to charity, which are void 
 by the Statute of Mortmain, and in which case a trust will result 
 for the heir.{y) 
 
 In the great case of Moggridge v. Thackwell,(2) Lord Eldon has 
 distinguished the principle of the cases, where property, given gene- 
 rally to charitable purposes, will be applied, under the direction of 
 the royal sign manual, and where the application will be under the 
 immediate administration of the Court of Chancery. " Where there 
 is a general indefinite purpose, not fixing itself upon any object, the 
 disposition is in the king by sign manual : but where the execution 
 is to be by a trustee with general or some objects pointed out, there 
 the court will take the administration of the trust."(3) 
 
 Thus, to illustrate this rule, in Frier v. Peacock, (a) which is re- 
 ported in Levinz under the name of Atorney General v. Matthews,(6) 
 a testator gave his residue "for the good of poor people for ever." 
 The court at the original hearing assumed the power of modifying 
 the bequest, and directed the property to be applied for the benefit 
 of forty poor boys ; but Lord Keeper Finch reversed that decision, 
 and held that the disposal was in the king by his sign manual ; and 
 the king directed it to be applied for the benefit of Christ's Hos- 
 pital. (e) 
 
 (J.) Att.-Gen. v. Grocers' Comp. 12 Hardwicke, in Da Cosla v. De Paz, 
 
 Law. Journ. N. S., Chanc. 196 ; S. C. 6 Ambl. 228, vide post. [Ayres v. Metho- 
 
 Beav. 526; Att.-Gen. «. Skinners' Corap. dist Church, 3 Sandf. S. C. 352.] 
 
 2 Russ. 407, 442; Att.-Gen. v. Gascoigne, (2) Paice v. Archbishop of Canter- 
 
 2 M. & K. 647. bury, 14 Ves. 372 ; Moggridge v. Thack- 
 
 (m) Att.-Gen. v. Todd, 1 Keen, 803; well, 7 Ves. 86; Ommaney v. Butcher, 
 
 Cary v. Abbott, 7 Ves. 490; Att.-Gen. T. & R. 270. [Andrews v. N. Y. ^ible 
 
 V. Green, 2 Bro. C. C. 492 ; Da Costa v. and Prayr. Bk. Soc, 4 Sandf. S. C. 1 56 ; 
 
 De Paz, Ambl. 228 ; S. C. 2 Sw. 487, n. see 1 Am. Law Reg. 546.] 
 
 [Martin v. Margham, 14 Sim. 230.] (a) Finch, 245. 
 
 (a:) See Att.-Gen. v. Fishmongers' (6) 2 Lev. 167. 
 
 Comp, 2 Beav. 151. (c) See 7 Ves. 69. 
 
 (y) See the distinction taken by Lord 
 
180 TRUSTEES BY RESULTING 
 
 So in Attorney-General v. Sjier{ea,{d) where a testator gave 
 1,000Z,, to be applied to such charitable uses, as he had by writing 
 formerly appointed ; and no such writing could be found, the fund 
 was applied to a charity appointed by the royal sign manual.((^ 
 
 And on the same principle, where the general intention is in favor 
 r*1311 °^ *charity, but the law does not suffer the particular purpose 
 to be carried into eflfect, the king will have the disposal by 
 his sign manual. (e) 
 
 But on the other hand, where the gift is to trustees, with directions 
 to apply the income in support of particular charities ; and a ques- 
 tion arises as to the application of the fund ; the court will assume 
 the administration of the property, and will direct a scheme for that 
 purpose.(/) And the rule is the same where the trustees, desig- 
 nated by the testator, decline to act.(^) 
 
 Even where the particular objects recommended are designated in 
 so vague a manner, as to render some authoritative interpretation of 
 the testator's intention indispensable ; the court will notwithstand- 
 ing exercise this jurisdiction. Thus in Moggridge v. Thackwell,(A) 
 a testatrix gave the residue of her personal estate > to James Paston 
 his executors, &c., " desiring him- to dispose of the same in such 
 charities, as he shall think fit, recommending poor clergymen, who 
 have large families and good characters." Lord Rosslyn at the 
 original hearing considered, that the execution of this trust lay with 
 the Court of Chancery, and accordingly directed a scheme for that 
 purpose. The case was afterwards reheard before Lord Eldon, and 
 most elaborately argued, and his lordship after a minute review of 
 all the authorities, from which he collected the principle above stated, 
 affirmed the decree of his predecessor. (A) 
 
 Where the object of a testator is charity, a far less accurate and 
 definite declaration of his intention will suffice to create a trust 
 against his next of kin, than, as we have seen, would be required in 
 other cases for that purpose, («') 
 
 Thus in the case of Moggridge v. Thackwell,(^) which we have 
 just considered, it is beyond all question, that the terms of the resi- 
 duary bequest were by far too indefinite, and uncertain, to have ex- 
 
 (d) Att.-Gen. i;. Syderfen, 1 Vera. Qi) Moggridge v. Thackwell, 1 Ves. 
 224; and 7 Ves. 43, n. jun. 464; S. C. on rehearing, 7 Ves. 
 
 (e) Gary V.Abbott, 7 Ves. 490; Att.- 36. 
 
 Gen. V. Todd, 1 Keen, 803. (i) See Morice v. Bishop of Durham, 
 
 (/) Attorney-General v. Tonner, 2 9 Ves. 405; Mills v. Farmer, 1 Mer. 
 
 "Ves. jun. 1; Attorney-General i). Coop- 94, 98, 100. 
 
 ers' Comp. 3 Beav. 29. (ft) Moggridge v. Thackwell, 1 Ves. 
 
 (g-) Attorney-General v. Reeve, 3 jun. 464 ; S. C. on rehearing, 7 Ves. 
 
 Hare, 191. 36. 
 
OR PKESXIMPTIVE TRUST. 181 
 
 eluded the claim of the next of kin, if the object of the testatrix's 
 bounty had been any other than charity.(Z) 
 
 And the claim by the trustee himself to the beneficial enjoyment 
 of the property would be regarded with less favor, where the purpose 
 of the gift is charitable, than in other cases.(m) However where by 
 the express direction of the testator, although the property is devoted 
 generally to charity, its distribution, and the selection of the objects, 
 are left entirely in the power and at the discretion of the trustee, 
 the court will not control him in the exercise of that discretion by 
 directing a scheme, unless some case of misconduct is established 
 against him.(ri) 
 
 But even where the object is charity, the terms of the gift must 
 create an imperative direction to the trustee, to apply the property 
 to some charitable purpose, or otherwise the court will refuse to in- 
 terfere. Sir Wm. *Grant has laid down the rule on this -. 
 head in the following terms : " The question is, not whether '- 
 the trustees mai/ not apply it upon purposes wholly charitable, but 
 whether he is hound so to apply it."(o) And in another case the 
 same learned judge says, " If the property might consistently with 
 the will be applied to other, than strictly charitable purposes, the 
 trust is too indefinite for the court to execute. "(p) 
 
 Thus in Coxe v. Bassett,(g') where a testator "authorized and 
 empowered" his trustees, to continue his charities and benefactions, 
 or to bestow any other, as they in their discretion should think fit, so 
 as not to exceed 1,000?. : the Master of the Rolls held, that the 
 charity could not be established by reason of its uncertainty, observ- 
 ing, that the testator meant to recommend only ; it was not manda- 
 tory. It was to exempt the trustees from being called to account 
 for doing it.(g') 
 
 And so in the recent case of Williams v. Henshaw(r) the testator 
 directed his trustees to apply the residue of the dividends and in- 
 come of a fund " to and for such benevolent and charitable and re- 
 ligious purposes, as they in their discretion should think most advan- 
 tageous and beneficial, and to and for no other use trust intent or 
 purpose whatsoever:" and Sir C. Pepys, M. R., held that there was 
 a discretion in the trustees to apply the fund, and that the trust for 
 charity did not therefore take effect. 
 
 (I) See Lord Eldoii's observations, (o) In Morice v. Bishop of Durham, 
 
 in Mills V. Fanner, I Mer. 100. 9 Ves. 406. 
 
 (m) Moggridge v. Thackwell, 1 Ves. (p) In James v. Allen, 3 Mer. 19. 
 
 jun. 475; Bishop of Hereford w. Adams, (9) Coxe 7). Bassett, 3 Ves. 155, 164. 
 
 7 Ves. 324. (r) Williams v. Kershaw, Rolls, 11th 
 
 (n) Waldo v. Caley, 16 Ves. 206; Dec. 1835; stated in Ellis v. Selby, 1 
 
 Horde v. Earl of Suffolk, 2 M. & K. 59. M. & Cr. 298. 
 
182 
 
 TRUSTEES BY RESULTING 
 
 And in the subsequent case of Ellis v. Selby,(j-r) where the gift was 
 to trustees " to pay and apply the fund to and for such charitable 
 or other purposes, as they should think fit, without being accoun- 
 table to any person or persons whomsoever for such their disposition 
 thereof." Lord Cottenham recognised and adopted his decision in 
 Williams v. Kershaw, and affirmed the decree of Sir L. Shadwell, V. 
 C, declaring the trust to be void. 
 
 It will be observed, that in this last case the bequest was to chari- 
 table or other purposes, and on that circumstance the Vice-Chancellor 
 appears mainly to have founded his judgment. An alternative be- 
 quest of that nature evidently excludes the possibility of its being 
 supported as a valid trust for charity. In Vezey v. Janson(s) the 
 gift was, to trustees " to dispose of it at their pleasure, either for 
 charitable or public purposes, or to any person or persons in such 
 shares, &c., as they in their discretion should think fit." And Sir 
 John Leach, V. C, in deciding that there was a resulting trust for 
 the next of kin said, " The testator has not fixed upon any part of 
 this property a trust for a charitable use, and I cannot therefore 
 devote any part of it to charity, "(s) In a very late case, there was 
 a gift of a residue to trustees, to be applied by them for the relief of 
 domestic distress, assisting indigent but deserving individuals, or 
 encouraging undertaTeings of general utility, in such mode or pro- 
 portions as their own discretion might suggest. Lord Langdale, M. 
 E., adopted the *above rule as laid down by Sir Wm. Grant 
 L J in Morice v. Bishop of Durham, and stated, that if the trust 
 had ended with the direction to assist " indigent but deserving indi- 
 viduals," he should have said it was a good charitable purpose, be- 
 cause of the word "indigent," but as the testator went on to em- 
 power the trustees to apply the fund to encourage undertakings of 
 "general utility," words which comprised purposes that were not 
 charitable, they had an option of applying the fund to purposes, 
 which were not charitable, and consequently that this could not be 
 enforced as a charitable trust. In this case the suit was instituted 
 by the testator's heir and next of kin, and the trustees do not appear 
 to have raised any claim to the beneficial interest. (i) 
 
 The court, in determining what will be such a " charitable pur- 
 pose," as it will support, and carry into execution, will treat any 
 legal public or general purpose as one coming within the equity of 
 the statute 43 Bliz. c. 4, as well as those expressed in that statute :(m) 
 but it will refuse to recognise any objects, not enumerated by or 
 
 (n-) Ellis V. Selby, 7 Sim. 352 ; S. C. («) Vezey v. Janson, 1 S. & S. 71 ; 
 on Appeal, 1 M. & Cr. 286 ; and see but see Johnston v. Swan, 3 Mad. 457. 
 Down V. Wonall, 1 M. & K. 561. [t) KendalU Granger, 5 Bear. 300. 
 
 (u) Att.-Gen. v. Heelis, 2 S. & St. 76. 
 
OR PRESUMPTIVE TRUST. 183 
 
 coming within the spirit of that statute, although such may be a 
 charitable object in the ordinary meaning of the term. (a;)' 
 
 Therefore where the bequest was, in trust " for such objects of 
 benevolence and liberality, as the trustee in his own discretion shall 
 most approve of :"(?/) or for "such benevolent purposes as the trus- 
 
 (_x) Morice v. Bishop of Durham, 9 (y) Morice v. Bishop of Durham, 9 
 
 Ves. 405; and 10 Yes. 540: see Nash Ves. 399; S. C. on Appeal, 10 Ves. 
 
 V. Morley, 5 Beav. 177 ; and Kendall 522. 
 V. Granger, ib. 300. 
 
 ' The decisions in the United States with regard to the validity of devises and 
 legacies to charitable uses have been frequent, but not entirely consistent. 
 Where the principles of the statute of Elizabeth are in force, considerable lati- 
 tude of construction has been adopted, with regard to the certainty requisite in 
 the description of the intended objects of charity. 
 
 Thus a devise of property "to the cause of Christ, for the benefit and promotion 
 of true evangelical piety and religion" which was to be " distributed in such divi- 
 sions, and to such societies and religious and charitable purposes," as the trustees 
 " might think fit and proper ;" Going v. Emery, 16 Pick. 107 ; a bequest to "the 
 treasurer for the time being of the American Bible Society, or of any other charitable 
 association, for the use and purposes of said Society;" Burr v. Smith, 7 Verm. 241 ; 
 a bequest of money to a church '•' to be laid out in bread yearly, for ten years, 
 for the poor of the congregation;" Witman v. Lex, 17 S. & R. 88 ; a devise to the 
 poor of a particular county, or parish, or town; State v. Gerard, 2 Ired. Eq. 210; 
 Overseers r. Taylor, Gilmer, 336; Shotwell v. Mott, 2 Sandf. Ch. 46; a devise 
 to be applied to the "dissemination of the gospel at home and abroad;" At- 
 torney-General V. Wallace, 7 B. Monr. 611; a bequest to the New York Yearly 
 Meeting of Friends called Orthodox, for the use of its ministers in straitened circum- 
 stances;" ^hotwell V. Mott, 2 Sandf. Ch. 46; a devise of real and personal estate 
 to an unincorporated religious association, " to be applied as a fund for the distribu- 
 tion of good books among poor people in the hack part of Pennsylvania, or for the 
 support of an institution or free school in or near Philadelphia ;" Pickering v. Shot- 
 well, 10 Barr, 23 : have all been supported as against the heir-at-law or next of 
 kin. 
 
 School and educational purposes generally have been held to be charities. 
 Vidal V. Girard, 2 How. S. C. 127 ; Wright v. Linn, 9 Barr. 433; Hadley u. Hop- 
 kins's Academy, 14 Pick. 240; State v. McGowan,-2 Ired. Eq. 9; Grifiin v. Gra- 
 ham, 1 Hawks. 96. So of a legacy to a town for town purposes. Coggeshall v. 
 Pelton, 7 J. C. R. 292; though see Wheeler v. Smith, 9 How. U. S. 55. So too 
 fire companies, though Unincorporated, are charities. Magill v. Brown, Brightly "s 
 Rep. 350; Thomas v. EUmaker, 1 Pars. 98. 
 
 But a bequest for " some promising young man of the Baptist order ;^' Hester v. 
 Hester, 2 Ired. Eq. 330 ; or to be applied to "foreign missions and poor saints ;" 
 Bridges v. Pleasants, 4 Ired. Eq. 26, is void for uncertainty. So in New York, a 
 devise to a corporation not capable of taking, in trust to apply the rents and pro- 
 fits to the maintenance and support of " one or more worthy and moral persons 
 of the age of sixty years and- upwards, every one of whom shall be a resident, 
 or live in a town or village, where there shall be at least one place or house of pub- 
 lic worship," is void. Ayres v. Methodist Church, 3 Sandf. S. C. 135. 
 
 As to charitable uses in Virginia and Maryland, where the statute of Elizabeth is 
 not recognised, see Baptist Association v. Hart, 4 Wheat. 1 ; Dashiellu. Attorney- 
 General, 5 H. & J. 392 ; 6 H. & J. 1. Literary fund v. Dawson, 10 Leigh. 147 ; 
 Gallego V. Attorney-General, 3 Leigh. 450 ; Wheeler v. Smith, 9 How. U. S. 55. 
 
184 
 
 TKUSTEBS BY RESULTING 
 
 tees in their integrity and discretion may unanimously agree on:"(s) 
 the court refused to enforce the trust. Upon the same principle it 
 is now decided, that a gift to " private charity " is not such an one 
 as can be recognised by the court :(a) although in some cases this 
 does not seem to have been regarded as an objection to the trust.(6) 
 And so "undertakings of public utility " is too general and vague 
 a description to be enforced as a charitable trust.(c) 
 
 However a trust for "such religious and charitable institutions 
 and purposes, as in the opinion of the testator's trustees should be 
 deemed fit " is a valid charitable trust.(£i) And so is a trust " for 
 the benefit of such societies subscriptions or purposes (having regard 
 to the glory of God in the spiritual welfare of his creatures), as the 
 trustees shall in their discretion see fit."(e) 
 
 However in all these cases the declaration of trust, although inca- 
 pable of taking effect in favor of the particular object, will never- 
 theless operate to exclude the trustee from taking the beneficial 
 interest ; and the trust will result to the heir-at-law or next of 
 kin, unless the bequest be so framed as to fall into the residuary 
 clause. (/) ^ 
 
 In like manner where the gift is for a particular charitable pur- 
 pose, *which is void as being contrary to the policy of the 
 L J law, we have seen, that if the property be devoted gene- 
 rally to charity, it will be applied, upon the failure of the particular 
 purpose, under the direction of the royal sign manual. (.$r) This 
 however will not be the case, where the particular object expressed 
 appears to have been the only one contemplated by the testator, for 
 then upon the failure of the particular trust, there will be a result- 
 ing trust for the donor or his heir-at-law or next of kin.(/) 
 
 Thus in De Themmines v. De Bonneval(g') a deed had been exe- 
 cuted, by which it was declared, that a sum of stock, which had 
 been transferred by the plaintiff into the joint names of himself and 
 three other trustees, was" in trust to pay the dividends to the plain- 
 tiff for life, and after his death to apply the same in printing and 
 circulating a treatise, inculcating the supremacy of the Pope in 
 
 (z) James v. Allen, 3 Mer. 17. (e) Townsend v. Carus, 13 Law Journ. 
 
 (o) Vide post, Ommaney v. Butcher, N. S. 169. 
 
 T. & R. 270 ; Nash v. Morley, 5 Beav. (/) Morice v. Bishop of Durham, 10 
 
 j77_ Ves. 522; James v. Allen, 2 Mer. 17; 
 
 (6) Waldo V. Caley, 16 Ves. 206; Ommaney v. Butcher, T.. & E. 260; 
 
 Jemmitt v. Perril, Ambl. 585, n. ; John- Ellis v. Selby, 1 M. & Cr. 286. [Hay- 
 
 ston V. Swan, 3 Mad. 457 ; Horde v. wood v. Craven, 2 Car. L. R. 557.] 
 
 Earl of Suffolk, 2 M. &K. 59 ; See Ellis (g) Vide supra, 130. 
 
 V. Selby, 1 M. & Cr. 292. (/) Post. 
 
 (c) Kendall v. Granger, 5 Beav. 300. (g) 5 Russ. 288. 
 
 (d) Baker ii. Sutton, 1 Keen, 224. 
 
OR PRESUMPTIVE TRUST. 185 
 
 ecclesiastical matters : and the deed contained a proviso, that if any 
 court of law or equity should declare any of the trusts to be void, 
 the trustees should hold the stock in trust for the plaintiff's execu- 
 tors and administrators. The cause came before Sir John Leach, 
 M. E., who held the trusts after the plaintiff's death to be void as 
 being contrary to the policy of the law. But his Honor considered 
 that the subsequent proviso showed, that the gift was only for the 
 particular purpose, and that there was no general intention to give 
 to charity, and that the plaintiff was therefore entitled to have the 
 stock retransferred to him. (A) 
 
 And in another case where the testatrix directed several sums to 
 be paid to certain Roman Catholic priests and chapels, that she 
 might have the benefit of their prayers and masses. Sir 0. Pepys, 
 M. R., held that those legacies, though not within the statute of 
 Edward VI., were void on account of the general illegality of their 
 object ; but that there was no gift to, charity generally, for the in- 
 tention of the testatrix was, not to benefit the priests or support the 
 chapels, but to secure a supposed benefit for herself, and that the 
 next of kin was therefore entitled.(i) 
 
 Where there is a gift of property to a corporation for the purpose 
 referred to, but that purpose cannot be discovered, or is not expressed ; 
 although it is very improbable, that the gift to the corporation was in 
 trust for a private person, yet the court cannot on that account 
 presume, that the purpose so referred to was a trust for charity, tc 
 which the uncertainty of the object would be no objection; and the 
 gift will therefore be void for uncertainty, and it will sink for the 
 benefit of the residuary legatee, if there be one : or otherwise will 
 result to the next of kin. (A) 
 
 4th. The last description of resulting trusts, which now remains 
 for our consideration, is ; where a disposition of real or personal 
 property fails altogether or partially, either from being void ah initio, 
 or from becoming so from some subsequent event. In either of these 
 cases, the trust, if not otherwise disposed of, will result for the benefit 
 of the donor's heir-at-law, or next of kin.(Z)' 
 
 Qi) De Themmines v. De Bonneval, (/) 2 Jarm. Pow. Dev. 32 ; 1 Rop. 
 
 5 Russ. 288. Lega. 627. [Dashiell v. Att.-Gen., 6 H. 
 
 (i) West V. Shuttleworth, 2 M. & K. & J. 1 ; 5 H. & J. 392 ; Hawley v. James, 
 
 684, 698. 5 Paige, 318 ; Lemmond v. Peoples, 6 
 
 {k) Corporation of Gloucester v. Ired. Ch. 137.] 
 Wood, 3 Hare, 131. 
 
 ' Where there has been a valuable consideration on a conveyance, there will 
 be no resulting trust to the grantor, on the failure of the trust, even in the case of 
 a charity. Gibson v. Armstrong, 7 B. Monr. 481 ; Kerlin v. Campbell, 3 Harris, 
 (Penn.) 500. 
 
186 TRUSTEES BY RESULTING 
 
 r*1351 *TJi'is ■where the gift is rendered void by statute ; as for 
 instance a disposition of real estate in favor of a Papist(Z) be- 
 fore the late acts for the relief of persons of that persuasion ; or in 
 violation of the Mortmain Acts,(OT) or the Thelluson Act (39 & 40 
 Geo. III. c. 98) ; {n) or where the trusts are invalid at the time of 
 their creation, or subsequently become so ; as tending ta a per- 
 petuity ;(o) or where they fail by the death of the donee in the tes- 
 tator's lifetime ;(p) in all these cases the rule as stated above will 
 apply, and a resulting trust will be created according to the nature 
 of the property for the heir-at-law, or next of kin of the donor. 
 
 Where the interest which thus fails, is a partial or particular 
 estate only, upon the determination of which subsequent remainders 
 are limited ; those remainders will not be accelerated by the failure 
 of the preceding estate, but the beneficial interest in the property 
 will result, as undisposed of, until the event happens, upon which the 
 remainders are limited to take effect.' 
 
 Thus where real estate was settled by deed, in trust after the, death 
 of the settlor for a Papist for life, with remainders over after his 
 death. The life estate given to the Papist being void, the effect was, 
 not that the remainders were accelerated, but that the rents and 
 profits belonged to the settlor's heir-at-law during the life of the 
 Papist, or real estate undisposed oi.[q) 
 
 And so where lands were devised to trustees for a term of years, 
 to raise a sum of money for certain purposes (which became void 
 for perpetuity), with remainders over after the raising of that sum, 
 or the determination of the term ; it was held by the House of Lords 
 on appeal, that the trusts of the term resulted for the benefit of the 
 heir.(r) 
 
 And upon the same principle it has been decided, that where pro- 
 perty is tied up by a series of limitations, and the income directed 
 to be accumulated beyond the period allowed by the Thelluson Act 
 (39 & 40 Geo. III. c. 98) ; the excess of accumulations, which is void, 
 will not belong to the party, to whom the first estate in possession is 
 
 (/) Carrick v. Errington, 2 P. Wras. (o) Tregonwell v. Sydenham, 3 Dow. 
 
 361 ; Davers v. Dewes, 3 P. Wms. 43. 194; Leake v. Robinson, 2 Mar. 363. 
 
 (m) Att.-Gen. v. Lord Weymouth, (y) Ackroyd v. Smithson, 1 Bro. C. 
 
 Ambl. 20; Jones v. Mitchell, 1 S. & S. C. 503. 
 
 294; West v. Shuttle worth, 2. M. & K. (g) Carrick v. Errington, 2 P. Wms. 
 
 684. 361. 
 
 (n) Eyre v. Marsden, 2 Keen, 564 ; (r) Tregonwell v. Sydenham, 3 Dow. 
 
 McDonald v. Bryce, ib. 276. 194. 
 
 ' But a legacy to A. for life, with remainders over, does not lapse, on A.'s death 
 in the testator's lifetime. Dunlap v. Dunlap, 4 Desaus. 303, 314; Richmond n. 
 Vanhook, 3 Ired. Ch. 581. See Mahorner v. Hooe, 9 S. & M. 247. 
 
OR PRESUMPTIVE TRUST. ' 187 
 
 limited, but will result as undisposed of to the heir-at-law or next o£ 
 kin of the settlor according to the quality of the estate. (s) 
 
 A residuary bequest, it is well known, operates upon all the per- 
 sonal estate, of which a testator is possessed at his death, and conse- 
 quently includes all bequests failing, either from their illegality, or 
 from the death of the legatee in the testator's lifetime. (*)' "It must 
 be a very peculiar case indeed," said Sir Wm. Grant, "in which 
 there can be at once a residuary clause, and a partial intestacy, 
 unless some part of the residue itself be ill given."(M) 
 
 *It follows therefore, that where the subject of the disposi- „_^ 
 tion, that fails, is personal estate, a resulting trust will arise L -' 
 for the next of kin, in those cases only, where there is no general 
 residuary gift ; or where it is the whole or part of the residuary gift 
 itself that fails. And accordingly on examination of the cases, in 
 which the next of kin have been held entitled to a void or lapsed be- 
 quest of personal estate, notwithstanding the existence of a residuary 
 clause, it will be found, that in all of them the bequest, thus failing, 
 formed part of the residue itself.(a;)^ 
 
 But previously to the recent statute 1 Vic. c. 26, a devise of real 
 estate, though residuary in its terms, was in reality a mere specific 
 disposition of the real estate, not before expressed to be given by the 
 will.(?/) Therefore if a devise of real estate, or any interest therein, 
 failed on account of its being illegal, or lapsed by the death of the 
 
 (s) McDonald v. Bryce, 2 Keen, 276. {x) Skrymsher v. Northcote, 1 Sw. 
 
 Eyre v. Marsden, ib. 564; and S. C. 4 566 ; McDonald ■;;. Bryce, 2 Keen, 276; 
 
 M. & Cr. 231. Eyre v. Marsden, ib. 564; [Woolmer's 
 
 (0 Jackson v. Kelly, 2 Ves. jun. Est. 3 Whart. 479.] 
 
 285; Brown v. Higgs, 4 Ves. 708; {y) Howe v. Earl of Dartmouth, 7 
 
 Cambridge D. Rous, 8 Ves. 12; Leake Ves. 147; Broome I). Monck, 10 Ves. 
 
 V. Robinson, 2 Mer. 363; Bland v. 605; Hill u. Cock, 1 V. &B. 175; 2 
 
 Bland, 2 J. & W. 406; Jones u. Mit- Jarm. Pow. Dev. 102; Cooku. Statiou- 
 
 chell, 1 S. & S. 298 ; 2 Wms. Exors. ers' Comp. 3 M. & K. 262. [4 Kent, 
 
 896. Comra. 541, &c. See in New York, 
 
 (u) lu Leake v. Robinson, 2 Mer. Van Kleek v. Dutch Church, 20 Wend. 
 
 392. 458.] 
 
 'King V. VVoodhull, 3 Edw. Ch. 79; Marsh v. Wheeler, 2 Edw. Ch. 156; 
 Com. V. Nase, 1 Ashra. 242; Woolmer's Estate, 3 Whart. 479; Johnson v. 
 Johnson, Sired. Eq. 427; Taylor v. Lucas, 4 Hawks. 215; Bryson v. Nickels, 2 
 Hill. Ch. 113; Vick v. MoDaniel, 3 flow. Mis. 337 ; Hamberlin v. Perry, 1 Sm. 
 & M. Ch. 589. Where a legacy is payable out of real estate, in consequence 
 of a deficiency in the personal property, it will in case of a lapse go to the 
 heir-at-law ; otherwise, if the personal estate be sufficient. King v. Strong, 9 
 Paige, Ch. 94. See Van Kleek v. Dutch Church, 20 Wend. 458. 
 
 ^ Where one of several residuary legatees dies during the lifetime of the testa- 
 tor, his legacy lapses for the benefit of the next of kin, and not forthat of the other 
 legatees. Floyd v. Barker, 1 Paige, Eq. R. 480; Frazieru. Frazier, 2 Leigh, 642. 
 See Tripps v. Frazier, 4 H. & J. 446. But see Hogan v. Hogan, 3 Dana, 572. 
 
188 TKUSTEBS BY RESULTING 
 
 devisee, the subject of such a devise would not pass by the residuary 
 clause, however ample, but resulted to the heir-at-law.(2) If the 
 residuary devise itself were the subject of the lapse, that was of 
 course a fortiori a case for a resulting trust in favor of the heir.(a) 
 
 However the recent statute of 1 Yict. c. 26, has done away with 
 this distinction between a residuary disposition of real and personal 
 estate : the 24th Section of that act enacts, that every will made after 
 the 1st of January, 1838, shall be construed, with reference to the 
 real and personal estate comprised in it. to speak and take effect, as 
 if made at the death of the testator : And by the 25th section such 
 real estate, or interest therein, as is comprised in any devise, in such 
 will contained, which shall fail or be void or otherwise incapable of 
 taking effect, shall be included in the residuary devise (if any) con- 
 tained in such will. 
 
 In future therefore a residuary devise of real estate will have the 
 same effect in excluding the claim of the heir-at-law to a lapse or 
 void devise, as a residuary gift of personal estate "would have had on 
 a similar claim on the part of the next of kin : and it becomes unne- 
 cessary to enter into the consideration of that long and intricate class 
 of cases, which have arisen upon the conflicting claims on the part of 
 the heir-at-law on the one hand, and the residuary legatees on the 
 other, to gifts lapsing or becoming void ; where it was doubtful 
 whether the subjects of those gifts had so far been invested_with the 
 character of personal estate, as to pass by the residuary bequest.(6) 
 
 Where the failure or lapse of a particular devise or bequest is an 
 event expressly contemplated by a testator, and provided for by a 
 gift by way of substitution to some other person, such a disposition 
 will unquestionably exclude the claim of the heir-at-law or next of 
 kin to take by resulting trust, (e) 
 
 It is clear, that where the disposition, which fails, applies to a de- 
 fined *and ascertained portion, or interest in the property, 
 L -■ which is excepted and separated from the rest, and devoted 
 to the purpose, which cannot take effect ; the person taking the pro- 
 perty, subject to the disposition so failing, will hold as a trustee for 
 the heir-at-law or next of kin to the extent or during the continuance 
 of the partial interest thus created : unless that interest is otherwise 
 disposed of by the will.(d) 
 
 («) Cook D. Stationers' Comp. 3 M. (a) Eyre d. Marsden, 2 Keen, 564; 
 
 &K. 262; Watson u Earl of Lincoln, Salt ■». Chattaway, 3 Beav. 576. 
 
 Ambl. 328 ; Oke v. Heath, 1 Ves. sen. (6) See 2 Jarra. Pow. Dev. 77, &c. 
 
 141; Cambridge v. Rous, 8 Ves. 25; (c) Rose v. Rose, 17 Ves. 347; Price 
 
 Jones V. Mitchell, 1 S. & S. 290. [Van v. Hathaway, 6 Mad. 304. 
 
 Kleeck v. Dutch Church, 20 Wend. (d) See the principle stated by Sir J. 
 
 457 ; 6 Paige, 600 ; Lingan v. Carroll, 3 Leach, in Cooke v. Stationers' Comp. 3 
 
 H. & McH. 333.] M. & K. 264, 5. 
 
OR PRESUMPTIVE TRUST. 189 
 
 Where however the gift is of a sum of money, which is directed to 
 be raised out of the estate, and applied to certain purposes, which 
 fail or cannot take effect : it frequently becomes a question of ex- 
 treme nicety to determine, whether the charge has been so dis- 
 tinctly created by the testator and excepted from the corpus of the 
 estate, as to convert the person taking the property into a trustee 
 for the heir-at-law or next of kin to the extent of the charge ; or 
 whether the failure of the particular purposes declared shall enure 
 for the benefit of the donee of the estate, so as to cause the charge 
 to sink for his benefit. 
 
 It is at any rate clear, that where an estate is given charged with 
 a sum of money upon a contingency, which does not happen, the 
 charge sinks for the benefit of the donee. (e) As in the case put by 
 Lord Eldon(/) of a devise of land to A., charged with a legacy to 
 B., provided B. attain the age of twenty-one. Then the devise is 
 absolute to A., if B. do not reach twenty-one. In that case the 
 will is to be read, as if no such legacy were given, and the heir-at- 
 law cannot come in, because the whole is given absolutely to the 
 devisee. 
 
 However it seems, that if the contingency, on which the charge is 
 to be raised, once happen, and the interest subsequently lapses : as 
 in the case last put, if B. reached twenty-one, and then died in the 
 testator's lifetime, the ordinary rule would prevail, and the heir 
 would be entitled by a resulting trust.(^) 
 
 It has been decided, that where there is an absolute gift of pro- 
 perty, to which is annexed a condition to apply part of the property, 
 or to pay a sum of money for an illegal purpose ; there will be no 
 resulting trust as to that portion, which is the subject of the condi- 
 tion, but the donee will take the whole absolutely for his own benefit. 
 
 Thus in a case where there was an absolute bequest of leaseholds, 
 with a condition to assign part to a charity ; it was contended, that 
 the legatee was a mere trustee as to that part, and, the trust being 
 void, that it belonged to the next of kin : but Sir John Leach, V. 
 C, held, that it was the same, as if the illegal condition had been to 
 pay a sum of money to a charity, in which case it was clear that the 
 legatee would have retained the whole without payment of the money, 
 and that therefore in the case in question he was entitled to retain 
 the whole, without the assignment of a part.(^) 
 
 However it seems very difficult upon principle to support any dis- 
 
 (e) Atlorney-General v. Milner, 3 (/) In Sydenham v. Tregonwell, 3 
 
 Atk. 112; Croft v. Slee, 4 Ves. 60. Dow. 212. 
 
 [Stone V. Massey, 2 Yeates, 369; Smith (g) 2 Jarm. Pow. Dev. 43. 
 
 V. Wiseman, 6 Ired. Eq. 540.] Qi) Poor v. Mial, 6 Mad. 32. 
 
190 
 
 TRUSTEES BY RESULTING 
 
 tinction in favor of the donee, merely on the ground, that the par- 
 ticular trust, which fails, is created in the form of a condition. And 
 r*1381 *^'^ *difficulty is yet greater, when, as in Poor v. Mial, the 
 J condition is applied to a specified portion of the estate ; for 
 then that portion would seem to be necessarily excepted out of what 
 is given to the donee, so as to be brought within the general rule as 
 stated above. Where the condition is for the payment of a sum of 
 money, the decision in favor of the donee taking absolutely would 
 probably be supported upon the general doctrine laid down in King 
 V. Denison, that such a condition operates, not as an exception out 
 of the gift to him, but as a charge upon it.(^') 
 
 In Bland v. Wilkins,(^) lands were given to E. N. in fee, on con- 
 dition that her executors should pay IQl. to a charity, and Sir 
 Thomas Sewell held, that the 101. should go' to the heir.(A) Sir 
 John Leach himself appears subsequently not to have adhered to 
 his decision in Poor v. Mial, as to the effect of a gift upon an illegal 
 condition, even where the condition was to pay a sum of money. In 
 Henchman v. Attorney-Greneral,(Z) there was a devise of copyholds 
 in fee, upon condition that the devisee should within one month pay 
 2000Z.'to the executor to be applied for charitable purposes. The 
 testator left no customary heir or next of kin, and Sir J. Leach, V. 
 C. held, that the devisee took, subject to the payment of the 2000Z. 
 which went to the crown, for want of an heir or next of kin.(Z) 
 
 This decision was afterwards reversed on appeal by Lord Broug- 
 ham, C, who held that the devisee took the copyholds discharged of 
 the legacy, on the ground that the court would not interfere against 
 the devisee, to compel the performance of the condition on behalf of 
 the crown, whatever it might do in support of a claim hy the heir-at- 
 law. {m) 
 
 The case therefore as decided by Lord Brougham is certainly no 
 authority on the general question between the devisee and heir-at- 
 law ; although it clearly establishes, that the crown or other lord ly 
 escheat, will not be entitled to a void or lapsed charge by virtue of a 
 resulting trust, but that the devisee in such a case will hold as against 
 those parties for his own benefit discharged from the trust. 
 
 It is clear, that if an estate be devised, charged generally with 
 legacies ; and any of the legacies fail, no matter how, there will be 
 no resulting trust for the heir, but the devisee shall have the benefit 
 
 (i) See Cooper v Stationers' Comp., tioners' Comp., 3 M & K. 266 ; where 
 
 3 M. & K. 264. Sir J. Leach observes, " that a condi- 
 
 (it) Bland u Wilkins, 1 Bro. C. C. tion to pay legacies, is no more than a 
 
 61, n. charge of the legacies." 
 
 {I) Henchman v. Attorney-General, (m) S. C. on Appeal, 3 M. & K. 435. 
 
 2 S. & S. 498; and see Cooke t). Sta- [See Taylor ti.Haygarth, 14 Simons, 8.] 
 
OR PRESUMPTIVE TRUST. 191 
 
 of the failure.(w) And this doctrine follows necessarily from the 
 general principle. A general charge of legacies is in its effect only 
 auxiliary to the personal estate ; it is therefore uncertain what part, 
 if any, of the devised estate will be required for satisfying the lega- 
 cies, and such a disposition cannot operate to except and separate 
 any particular portion of the estate from what is given to the devi- 
 see, so as to impress the gift of that portion with the character of a 
 trust.(o) 
 
 This reason does not seem to be .applicable, where the legacies are 
 charged exclusively on the devised estates ; in which case the ques- 
 tion, whether the devisee or heir-at-law will be entitled to the benefit 
 of a *failure or lapse, must necessarily be governed by the 
 same rules, which have been established with respect to other L ^ 
 charges besides legacies. 
 
 With respect to the general question, whether charges becoming 
 void or failing, belong to the heir or the devisee. Lord Eldon has 
 stated the result of the decisions to be, — that if the estate is given 
 to the devisees in such a way, that a charge is to be created by the 
 act of another person, raising the question between that person and 
 the devisees, the heir has no claim : but if the devisor himself has cre- 
 ated the charge, and to the extent of that charge, the intention ap- 
 pears on the face of the will, not to give the estate to the devisees, 
 it will to the extent of that charge, the particular object failing, go 
 to the heir : a distinction, which his Lordship characterized " as ex- 
 tremely nice, perhaps not easy of application."(p) 
 
 It has been remarked by Mr. Jarman, that " even the adoption of 
 this distinction with its acknowledged nicety, will not be found to 
 reconcile all the cases, in which a devisor has himself created a spe- 
 cific definite charge on a devised estate in favor of another person. "(g) 
 But we will now proceed to consider some of the decisions on this 
 subject : and first those in favor of the heir. 
 
 In Arnold v. Chapman(r) a testator devised a copyhold estate to 
 Chapman, "He causing to be paid to his executors the sum of 
 1,000Z. ;" and after payment of debts and legacies, he devised the re- 
 mainder of his estate to the Foundling Hospital. This being in effect 
 a bequest of 1,000?. to the hospital out of the estate was void by the 
 Statute of Mortmain, and a question arose, whether it should go to 
 the heir, or sink for the benefit of the devisee. Lord Hardwicke de- 
 cided, that the chajrge, being well made on the estate, but not well 
 disposed of, was to be considered as part of the real estate undis- 
 
 (n) Kennell v. Abbott, 4 Ves. 811. (g) 2 Jarm. Pow. Dev. 44. 
 
 (o) 2 Jarm. Pow. Dev. 44, 90. (r) Arnold v. Chapman, 1 Ves. sen. 
 
 ip) In Sidney v. Shelley, 19 Ves. 108. 
 363. [Approved in Shaeffer's Appeal, 8 
 Barr, 42.] 
 
192 TRUSTEES BY BESULTING 
 
 posed of, and that the heir was therefore entitled by way of resulting 
 trust.(r) 
 
 So in the case of Bland v. Wilkins,(8) which has been already men- 
 tioned, where there was a devise in fee on condition that the devisee's 
 executors should pay lOZ. to a charity, the bequest to the charity was 
 held to result to the heir.(8) 
 
 The case of Gravenor.i). Hallum,(i) which was decided in favor of 
 the heir, arose upon the claim of the heir in opposition to that of the 
 residuary devisees to void annuities given out of real estate. The 
 particular devisees of the estate, out of which the payments were to 
 be made, do not appear to have raised any claim for their own bene- 
 •jSt ; indeed in that case they were undoubtedly mere trustees. 
 
 In Wright v. Row,(m) the question seems to have arisen, but it does 
 not distinctly appear from the report in Brown, what was the deci- 
 sion of the court, although the m?irginal note states it to have been 
 in favor of the specific devisee, (m) 
 
 Legacies out of the produce of real estate which is directed to be 
 sold, are to be regarded in the same light, and governed by the same 
 rules as charges on the estate : therefore according to the general 
 rule, where *such legacies are excepted out of, and not merely 
 ■- -I charged upon, the gift of the produce of the real estate, the 
 heir and not the donee will be entitled to the benefit of a failure or 
 lapse of the legacies ; while on the contrary the donee and not the 
 heir will be entitled, if the produce of the estate be given subject to 
 or charged with the legacies that fail.(a;) 
 
 Thus where there is a devise to trustees to sell, and out of the pro- 
 duce of the sale to pay legacies, which fail ; and there is then a gift 
 of the residue of the produce, or the residue after payment of the 
 legacies to other devisees ; those devisees will in no event take more 
 than what remains over and above the amount of the legacies ; and 
 the amount of those legacies upon the failure of the original objects, 
 will go to the heir-at-law by resulting trust, (y) 
 
 On the other hand, a series of decisions are to be met with in favor 
 of the title of the devisee to take an interest, which lapses or fails, to 
 the exclusion of the heir-at-law's claim by resulting trust. 
 
 Thus in Jackson v. Hurlock,(s) a testator devised lands to B. and 
 her heirs, charged with the payment of any sum, not exceeding 
 10,000?., to such persons as he by any writing should appoint. The 
 
 (r) Arnold v. Chapman, 1 Ves. Sen. {y) Hutcheson i>. Hammond, 3 Bro. 
 
 108. C.C. 128; Page ■«. Leapingwell, 18 Yes. 
 
 (s) Bland v. Wilkins, 1 Bro. C. C. 61, n. 463 ; Gibbs v. Rumsey, 2 V. & B. 294. 
 
 \t) Ambl. 643. (z) Jackson v. Hurlock, Ambl. 487 ; 
 
 (u) Wright V. Row, 1 Bro. C. C. 61. S. C. 2 Ed. 263. 
 
 \x) Cook V. Stationers' Comp., 3 M. 
 & K. 264, 
 
OR PRESUMPTIVE TRUST. 198 
 
 testator by writing charged on the estate inter alia sums amounting 
 to about 6,0001. to charitable uses. Lord Northington held that these 
 void legacies must sink into the estate for the benefit of the devisee. 
 It had been argued by counsel, he said, on a mistake, as if he in- 
 tended at all events to take 10,000^. out of the estate, whereas he 
 meant the reverse. A sum not exceeding 10,000Z. had put a charge 
 on the estate, which could not take place. (a) 
 
 In the case of Barrington v. Hereford,(a) and also in that of Baker 
 V. Hall,(6) there was a devise of real estate charged with a yearly 
 payment to charity, and in each case it was held, that the charge 
 sunk for the benefit of the specific devisee. However it will be ob- 
 served, that both those decisions were against the claim of the resi- 
 duary devisees, and as the title of the heir does not seem to have 
 come in question in either of those cases, they can neither of them 
 perhaps be considered as an authority on the general question of the 
 claim of the heir under such circumstances.(c) 
 
 But in King v. Denison,(cZ) as stated by Sir John Leach, M. R., 
 in his judgment in Cooke v. Stationers' Company,(e) the testator de- 
 vised her real estates subject to and chargeable with certain an- 
 nuities for life, but survived all the annuitants ; and Lord Eldon de- 
 cided against the claim of the heir-at-law, holding that the devisees 
 took the estate discharged of the annuities. 
 
 And in Cooke v. Stationers' Oompany,(e) where a testator devised 
 his freehold and leasehold estates to his executors in trust, desiring, 
 that they would sell so much as would purchase 10,700Z. 3 per cent, 
 consols; *and he then proceeded to give several legacies, 
 among which was one of 2,5001. consols to the Stationers' L J 
 Company, the interest thereof to be paid to his wife during her life, 
 and one of 8001. to the parish of Beckenham, for charitable pur- 
 poses ; and he gave and devised to his wife the rest and residue of 
 his estate, on condition that all the legacies were paid : the principal 
 question was, whether those legacies being void should go to the heir- 
 at-law or the devisee ; and Sir John Leach after reviewing all the 
 authorities, and stating the principle to be deduced from them, came 
 to the conclusion, that those legacies were a charge upon and not an 
 exception from the gift to the wife, and his Honor accordingly made 
 a decree in favor of the wife.(/) 
 
 The case of Henchman v. Attorney-Greneral,(^) and Lord Broug- 
 
 (2) Jackson v. Harlock, Ambl. 487 ; (d) 1 V. & B. 260. 
 
 S. C. 2 Ed. 263. (e) 3 M. &K. 266. 
 
 (a) 1 Bro. C. C. 61, n.; S. C. 3 Dow. (/) Cooke v. Stationers' Corap. 3 M. 
 
 212; and 4 Ves. 811. & K. 262. 
 
 (6) 12 Ves. 497. (g-) Henchman v. Attorney-General, 
 
 (c) See these cases considered in 2 2 S. & S. 498 ; and S. C. 3 M. & K. 485. 
 Jarm. Pow. Dev. 47, 9. 
 
 13 
 
194 TRUSTEES BY RESULTING 
 
 ham's decision of that' case on appeal have been already considered; 
 and we have seen, that the decision in that case in favor of the spe- 
 cific devisee against the claim of the crown or other lord by escheat, 
 is no authority against the heir-at-law. (^) 
 
 In Kennell v. Abbott, (A) where a legacy which was given out of 
 the produce of real estate directed to be sold, failed, — the decision 
 was, that the property was absolutely converted into personal estate, 
 and that the legacy therefore passed by the residuary gift. But 
 Lord Alvanley observed, that "it is now settled, that if an estate is 
 devised, charged with legacies, and the legacies fail, no matter how, 
 the devisee shall have the benefit of it, and take the estate."(A) 
 
 Amid these conflicting decisions, which all alike profess to be 
 governed by the same general rule, it becomes extremely difficult 
 to apply the general rule, so as to determine with accuracy, what 
 would be considered an exception out of a gift, so as to entitle the 
 heir in case of a lapse or failure, or what a mere charge upon the 
 gift, which would sink for the benefit of the devisee. 
 
 The general intention to be gathered from the terms of the devise 
 in each particular case will of course prevail. However the cases 
 seem at any rate to decide, that where there is an express gift of an 
 estate to a person charged with ; or subject to ; or on condition of ; 
 paying certain legacies, which lapse or are void ; there will be no 
 resulting trust in consequence of the failure, but the donee will be 
 entitled to the benefit.(«) — Unless indeed there is a sufficient indica- 
 tion of a contrary intention : as where it appears, that the payment 
 of the sum by the devisee at all events is the express condition on 
 which the estate is given to him. (A;) 
 
 But where the charges, ot legacies are in the first place expressly 
 and distinctly made or given with directions to trustees for their ap- 
 propriation, and payment, and the remainder of the estate is then 
 given to other devisees; it seems that those devisees will take only 
 what remains after the satisfaction of those charges, which must be 
 raised for the benefit of the *heir-at-law, if the original ob- 
 •- J jects contemplated by the testator cannot take.(Z)(l) 
 
 (g) Henchman v. Attorney-General, 108; the circumstances of Bland v. 
 
 2 S. & S. 498 ; and S. C. 3 M. & K. 485. Wilkins are not stated with sufficient 
 
 (fe) Kennell I). Abbott, 4 Ves. 811. minuteness, to enable any conclusion 
 
 (i) Jackson v. Hurlock, Ambl. 487, to be drawn from that case ; see 1 Bro. 
 
 and 2 Ed. 263; King v. Denison, 1 V. C. C. 61, n. 
 
 & B. 260; Cooke v. Stationers' Comp. (/) Gravenor u. Hallam, Ambl. 643; 
 
 3M.&K. 262; Henchman D.- Attorney- Jones v. Mitchell, 1 S. & St. 290; 
 
 General, ib. 493. [King v. Mitchell, 8 Hutcheson v. Hammond, 3 Bro. C. C. 
 
 Peters, 326.] 128; Gibbs v. Rumsey, 2 V. & B. 294. 
 
 (Jc) Arnold v. Chapman, 1 Ves. sen. 
 
 (1) The observations in the text are throughout based on the assumption that 
 no distinction is to be made between charges void ah initio, and those failing by 
 
OR PRESUMPTIVE TRUST. 195 
 
 Although the legacies be first expressly given, if there be a devise 
 of the residue charged with payment of the legacies, it has been de- 
 cided by Cooke v. Stationers' Company(m), that such a case comes 
 within the first class of decisions stated above, and the legacies will 
 sink for the benefit of the devisee.(m) 
 
 It is clear as a general rule, that where property real or personal 
 is directed to be converted for purposes, which fail, either from being 
 void ah initio, or by lapse, there will be ho conversion of the interest 
 thus becoming undisposed of, but that interest will result to the heir- 
 at-law, if the subject of the direction be real estate, or to the next of 
 kin, if it be personal estate. (n) 
 
 Thus where land is directed to be converted into money, and the 
 produce applied to purposes, which are either illegal and void;(o) or 
 which fail by lapse ;{p) the trust will result as real estate to the heir- 
 at-law, and not to the next of kin. And the same doctrine prevails 
 with respect to legacies, charged on real estate, or given out of the 
 produce of the sale, which fail from their illegality, or lapse. (g') 
 On the same principle money, given to be laid out in land for pur- 
 Cm) 3 M. & K. 262. V. Leslie, 3 Wheat. 583 ; Shaeffer's App. 
 
 (n) 2 Jarm. Pow. Dev. 75, 77. [See 8 Barr, 42.] 
 ante, 127 note.] (g) Arnold v. Chapman, 1 Ves. sen. 
 
 (o) Howse ■!). Chapman, 4 Ves. 542; 108; Gravenor ■«. Hallam, Arabl. 643; 
 Gibbs V. Rumsey, 2 V. & B. 294; Eyre Hutcheson v. Hammond, 3 Bro. C. C. 
 u. Marsden, 2 Keen, 564. 128; Page v. Leapingwell, 18 Ves. 
 
 (p) Cruse V. Barley, 3 P. Wms. 20; 463; Joaeav. Mitchell, 1 S. & S. 293. 
 Williams v. Coade, 10 Ves. 500. [Craig [Shaeffer's App. 8 Barr. 42.] 
 
 lapse. However the case of Noel v. Ld. Henley in the House of Lords would 
 seem to be founded on a distinction of this nature, anomalous as it may appear. 
 In that case Ld. Wentworth devised certain estates to trustees to sell, and out of 
 the produce to pay amongst other sums the sum of 5,000/. to his wife, who 
 afterwards died in the testator's lifetime ; and after those purposes he directed 
 the trustees to invest the residue upon certain trusts. One question was, whether 
 the 5,000Z. devolved upon the heir or next of kin, or belonged to the persons 
 entitled to the residue. At the original hearing, Richards, C. B., held, that by 
 the lapse the residuary devisees of the fund were entitled; and this decision was 
 affirmed on appeal by the House of Lords. This case has been commented 
 upon with great minuteness and ability by Mr. Jarman, who remarks, that 
 neither Hutcheson v. Hammond nor any other decision was cited by Ld. Eldon 
 or Ld. Redesdale in their judgments on this case in the House of Lords, although 
 the principle of the decision is at direct variance with that established by Hutche- 
 son V. Hammond, and the cases which follow it. However if the case of Noel 
 V. Ld. Henley can stand as an authority consistently with the other line of cases, 
 it has been remarked by Mr. Jarman, that it is introductive of this anomaly; 
 that the gift of a residue of a fund, arising from real estate devised to be sold, 
 includes specific sums out of that fund, void in event by the subsequent death of 
 the devisee in the testator's lifetime, but not those, which are void ab initio. 
 Noelu. Ld. Henley, 1 Dan. 322 and 211; S. C. 7 Pri. 240. And see 2 Jarm. 
 Pow. Dev. 89, et seq. 
 
196 
 
 TRUSTEES BY RESULTING TKUST. 
 
 poses which cannot take effect, will result to the next of kin, and not 
 to the heir-at-law. (r) For as we have already seen, the doctrine 
 established by Chapman v. Fletcher,(g) that money directed to be 
 r*1431 ^°^^^*^<1 i'l l^^*^) ^"^^ oiily paHially disposed of, will result 
 to the heir-at-law, will not be *extended to those cases, where 
 there is z, failure of the contemplated purpose. 
 
 So where real estate is directed to be sold, and the produce of the 
 sale blended with the general personal estate, and the mixed fund is 
 directed to be applied to purposes, which fail either wholly or in 
 part, whether from lapse or from being originally void ; the interest, 
 thus becoming undisposed of, will result to the heir-at-law, so far as 
 it is constituted by the real estate, and to the next of kin, so far as it 
 is composed of personal estate.(<) 
 
 However if it appear from the will to have been the testator's in- 
 tention, that the produce of his real estate directed to be sold, should 
 for all purposes be considered as personal estate, the next of kin will 
 be entitled to the whole benefit of the failure of a legacy given out of 
 a mixed fund of real and personal estate, to the exclusion of the heir- 
 at-law.(M)' 
 
 Where the terms of a bequest render it doubtful, whether the pur- 
 pose contemplated by the testator were illegal or not, evidence will 
 be admitted for the purpose of establishing the legality of the be- 
 quest. But in such cases, the nature of the bequest must be such as 
 of itself to create the presumption of its invalidity, as no evidence 
 could be received for the purpose of raising such a presumption in 
 
 (r) Darour v. Motteux, 1 Ves. 320 ; {t) Ackroyd v. Smithson, 1 Bro. C. 
 
 Mogg V. Hodges, 2 Ves. 52; Cogan v. C. 503; Amphlett v. Parke, 2 R. & M. 
 
 Stephens, 1 Beav. 482, n. ; Hereford v. 221 ; Johnson v. Woods, 2 Beav. 409; 
 
 Eavenhill, id. 481 ; Giblett v. Hobson, 5 Salt v. Chattaway, 3 Beav. 576. 
 
 Sim. 651 ; and 3 M. & K. 517. («) Durour v. Motteux, 1 Ves. sen. 
 
 (s) 3 Bro. P. C. 1. 108 ; Phillips v. Phillips, 1 M. & IC'. 649. 
 
 • See Craig v. Leslie, 3 Wheat. 383 ; Burr v. Sims, 1 Whart. 263. So where 
 the proceeds of realty are directed to be divided for the general purposes of the 
 will, as for instance, to form with the personalty a common fund, for all the pur- 
 poses of the will, though it should happen, that some of them fail, it will be con- 
 sidered an absolute conversion. Burr v. Sims. But an express provision that 
 the proceeds shall constitute a fund of personal property, and _a direction that 
 they should not in any case lapse, or will not exclude the heir as to an undis- 
 yoscd o/surplus. Fitch v. Weber, 6 Hare, 145; Attorney-General v. Henchman, 
 2 R. & M. 221 ; Gordon v. Atkinson, 1 De G. & Sm. 478. Phillips v. Phillips, 1 
 M. & K. 649, above cited, was disapproved in these cases, and expressly over- 
 ruled in Taylor v. Taylor, before the Lord Chancellor, 17 Jurist, 585. There the tes- 
 tator had directed his real estate to be sold, the proceeds to be joined to the per- 
 sonalty, and divided among certain nephews. One of these died after the date 
 of the will, but before the testator's death, and it was helS that his share went to 
 the heir-at-law and not the next of kin. See also Flint v. Warren, 16 Sim. 124; 
 12 Jur. 810. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 197 
 
 the first place. On this account the onus prohandi will always rest 
 on the parties, seeking to support the bequest, to rebut the presump- 
 tion, that exists against it. (a;) 
 
 ^CHAPTER II. C*144] 
 
 TRUSTEES BY VIETUB OE A CONSTRUCTIVE TRUST. 
 
 Wherever the circumstances of a transaction are such, that the 
 person, who takes the legal estate in property, cannot also enjoy the 
 beneficial interest, without necessarily violating some established 
 principle of equity ; the court will immediately raise a constructive 
 trust, and fasten it upon the conscience of the legal owner, so as to 
 convert him into a trustee for the parties, who in equity are entitled 
 to the beneficial enjoyment. 
 
 These constructive trusts may be separately considered under two 
 distinct classes of cases : one where the acquisition of the legal estate 
 is tainted with fraud either actual or equitable. And the other, 
 where the trust depends upon some general equitable rule, inde- 
 pendently of the existence of fraud. (1) 
 
 L— WHERE THE ACQUISITION OP THE LEGAL ESTATE IS AFFECTED 
 
 WITH FRAUD. 
 
 In cases of fraud, whether construQtive or actual, courts of equity 
 have adopted principles extremely broad and comprehensive in the 
 application of their remedial justice : and especially where there is 
 any fraud afi"ecting the acquisition of property, they will interfere 
 and administer a wholesome justice, and sometimes even a stern jus- 
 tice in favor of innocent persons, who are sufferers by it without any 
 
 (z) Giblett V. Hobson, 3 M. & K. 517. 
 
 (1) "There is one good, general, and infallible rule, that goes to both these 
 kinds of trusts. It is such a general rule, as never deceives ; a general rule, to 
 which there is no exception ; and that is this : the law never implies, the court 
 never presumes a trust, but in case of absolute necessity. The reason of this 
 rule is sacred; for, if the chancery do once take liberty to construe a trust by 
 implication of law, or to presume a trust unnecessarily, a way is opened to the 
 Lord Chancellor lo construe or presume any man in England out of his estate. 
 And so at last every case in court will become casus pro amico." Per Lord 
 Nottingham in Cook v. Fountain, 3 Swanston, 585.— T. 
 
198 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 fault on their own side. And this is readily done by converting the 
 offending party into a trustee' and making the property itself subser- 
 vient to the proper purposes of recompense by way of equitable 
 trust.(a)(l) 
 
 (a) 1 Story Eq. Jur. § 184, &o., [Robertson v. Robertson, 9 W. 32. See Peebles v. 
 Reading, 8 S. & R. 492.] 
 
 (1) AJeed maybe avoided at common law on the ground of its being obtained 
 by' fraud; and indeed the question of fraud or no fraud in obtaining a will of real 
 estate can be tried in a court of law only. The jurisdiction of courts of equity, 
 therefore, in cases of fraud is merely concurrent with that of the courts of law. 
 But the proceedings in courts of equity are much better adapted for the investiga- 
 tion and trial of such questions ; and there are many cases of fraud, wholly be- 
 yond the reach of courts of law, of which equhy will take cognizance. The con- 
 sideration of these questions therefore, with the exception of wills, is in practice 
 almost exclusively vested in the Court of Chancery. 3 Bl. Comm. 431; 1 Fonbl. 
 Eq.B. 1, Ch. 2, s. 3; 1 Mad. Ch. Pr. 341 ; 1 Stor. Eq. Jur. § 184. [See note,(i) 
 post, 150.] 
 
 A feme coverte is answerable for an act of fraud in a court of equity, as much as 
 if she were a. feme sole. Jones v. Kearney, 1 Dr. & W. 134, 167. [So where an 
 infant represented himself to another to be of full age, and executed a release on 
 which the latter acted ; it was held that he could not afterwards impeach the 
 release on the ground of his minority. Wright v Snowden, 2 DeG. & S. 321. 
 See Stoolfoos v. Jenkins, 12 S. & R. 399 accord. An infant may, it seems, be 
 bound by an equitable estoppel. Hall v. Timmons, 2 Rich. Eq. 120 ; so of a feme 
 coverte. Davis v. Tingle, 8 B. Monr. 539. But at law a contract entered into 
 through fraud of an infant cannot be enforced. Conroe v Birdsale, 1 John. Cas. 
 127; Burley !). Russell. 10 N. H. 184; Brown v, Dunham, 1 Root. 272. Though 
 the infant may perhaps be liable in an action of deceit. Fitts v. Hall, 9 N. H. 441.] 
 
 ' In Massachusetts, where there is no distinct equitable jurisdiction on the 
 ground of fraud, the court cannot, in order to give relief, convert a fraud into a 
 trust, and thus support a bill in equity. Mitchell v. Green, 10 Metcalf, 101 ; 
 Whitney 1). Steams, 11 Metcalf, 319. Where, however, the question of fraud 
 arises incidentally in a matter of which the court has cognizance, it may proceed 
 to inquire into and decide the same. Ibid. Goodrich v. Staples, 2 Cush. 258. 
 
 It may be here remarked, that the right to set aside a conveyance obtained by 
 fraud, is not a mere right of entry, but constitutes an equitable estate in the land, 
 and,is therefore devisable. Stump v. Gaby, 22 L. J. Ch. 352. In this case, which 
 was that of a conveyance obtained by an attorney, and a subsequent devise to 
 him by way of confirmation by the grantor, the Chancellor, Lord St. Leonards 
 says, " What then is the interest of a man in an estate which he has conveyed 
 to an attorney in a manner in which the attorney cannot maintain it? In the view 
 of this Court he is still owner of the estate, subject to the repayment to the 
 attorney of the money he has received ; and the consequence is that he may 
 devise the estate as an equitable estate." This question of course could not 
 arise in any state, where, as in Pennsylvania, (McKissick v. Pickle, 4 Harris, 
 140), rights of entry of all kinds are devisable. The principle of Stump v. Gaby, 
 is a fortiori, applicable to constructive trusts " in the absence of fraud" (see post, 
 page 170, &o.), such as the equitable interest of a purchaser under a contract of . 
 sale of land, which it is well settled may be assigned or devised. Malin -o. 
 Malin, 1 Wend. 625; Clapper v. House, 6 Paige, 149; Cogswell v. Cogswell, 2 
 Edw. Ch. 231. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 199 
 
 *The court has never ventured to lay dovrn as a general pro- r*i 45-1 
 position, what shall constitute fraud ;(6) nor can any invaria- 
 ble rule be established on this point. Fraud is infinite, and were the 
 court to lay down rules, how far it would go in extending relief 
 against it, the jurisdiction would be cramped, and perpetually ex- 
 cluded by new schemes, which the fertility of man's invention would 
 contrive. Therefore if a case of fraud, or presumption of fraud, 
 should arise, to which no case previously decided, or even no prin- 
 ciple already established, can be applied, a new principle would be 
 established to meet the fraud ; as the principles, on which former 
 cases have been decided, have been from time to time established, as 
 fraud contrived new devices, (c) 
 
 However, we will now proceed to consider some of the principal 
 cases, in which a constructive trust has been established on the 
 ground of fraud. 
 
 In Chesterfield v. Ja,nsen,{ol) Lord Hardwicke distinguished the 
 cases of fraud, against which the court will relieve, into four classes. 
 1st, Fraud, arising from facts and circumstances of imposition, which 
 is the plainest case. 2d, Fraud, apparent from the intrinsic value, 
 and subject of the bargain itself; such as no man in his senses, and 
 not under delusion would make on the one hand, and as no honest or 
 fair man would accept on the other. 3d, Fraud, which may be pre- 
 sumed from the circumstances, and condition of the parties contract- 
 ing : a rule which is wisely established by the court to prevent taking 
 surreptitious advantage of the weakness or necessity of another. 
 And 4th, Fraud, collected from the circumstances of the transaction, 
 as being an imposition or deceit upon other persons not parties to 
 the fraudulent agreement, (d) 
 
 We will now proceed cursorily to consider these several species of 
 fraud, .so far as they bear on the subject now under discussion. And 
 1st, Of fraud arising from facts or circumstances of imposition. 
 
 Wherever a person is entrapped into the execution of an instru- 
 ment through a conspiracy or combination for that purpose, or by 
 surprise, oppression, intimidation, or any other practice at variance 
 with fair dealing ; that clearly comes within the first and plainest 
 class of cases for equitable relief ; and the court will not suffer the 
 parties to avail themselves of the legal rights thus acquired, but will 
 interpose and give redress. (e) 
 
 (6) Per Lord Eldon in Mortlock v. (e) Earl of Bath and Montague's 
 
 BuUer, 10 Ves. 306; Lawley «. Hooper, case, 3 Ch. Ca. 56; Bennet v. Vade, 2 
 
 3 Atk. 279. Atk.'324; Neville v. Wilkinson, 1 Bro. 
 
 (c) 1 Mad. Ch. Pr. 341, 3d ed. C. C. 546; Evans v. Llewellyn, 1 Cox, 
 
 (d) Chesterfield v. Jansen, 2 Ves. 340; Willan v. Willan, 16 Ves. 82; 1 
 155. [Hinchman v. Emans, Saxt. Ch. Fonbl. Eq. B. 1, Ch. 2; 1 Mad. Ch.Pr. 
 100.] 342, &c.; Barnesly v. Powell, 1 Ves. 
 
200 TEUSTEBS BY CONSTRUCTIVE TRUST. 
 
 And so where a deed, or other instrument conveying an interest in 
 property, however formally and solemnly it may be executed, is ob- 
 tained by means of some misrepresentation, or concealment of facts, 
 or more strongly still, by both of those means together ; the party 
 r*14.fi1 *'^^^"g under such an instrument *will be treated as a 
 '- -J trustee for the person, whom he has thus fraudulently in- 
 duced to execute it ; and at the suit of the injured party the instru- 
 ment will be decreed to be delivered up, and a reconveyance exe- 
 cuted. (/) 
 
 It has been laid down, that this equitable relief will be equally ad- 
 ministered, whether the fraud consist of a positive misrepresentation, 
 or of a wilful concealment of fact, whether it be by suggestio falsi or 
 suppressio veri.[g) But first of those cases, where there has been 
 suggestio falsi. 
 
 Where the devisee under a will, which was defectively executed, 
 represented to the heir, that the will was duly executed, and thus in- 
 duced the heir to execute a deed of conveyance of the devised estates 
 to him for a small pecuniary consideration, the court relieved against 
 the effects of the conveyance on the ground of the fraud. (A) So 
 where an executor obtained a release from a legatee by means of a 
 false representation to the legatee, that she had no legacy, the release 
 was set aside.(z) 
 
 And on the same principle, the court will not recognise an interest 
 under a contract which has been acquired by means of a false state- 
 ment, that the party was acting for another person ; if it be proved 
 that the false statement induced the other party to enter into the con- 
 tract, or occasioned him any loss or inconvenience. (A:) 
 
 In like manner, where a party had obtained an agreement for an 
 exchange of estates by a false representation as to part of the pro- 
 perty, that the tenants consented to the exchange ; it was held by 
 
 289; Bridgman v. Green, 2 Ves. 627; [Smith ■«. Richards, 13 Pet. 26; Torrey 
 
 Matthew v. Hanbury, 2 Vera. 187 ; Say v. Buck, 1 Green, Ch. 366.] 
 
 V. Baiwick, 1 V. & B. 195; How v. {h) Broderiok v. Broderick, 1 P. 
 
 Weldon, 2 Ves. 517. Wms. 239. 
 
 (/) 1 Fonbl. Eq. B. 1, C. 2; 1 Mad. (i) Jarvis v. Duke, 1 Vem. 19; and 
 
 Ch. Pr. 348; Mitf. Eq. PI. 128, 4lh ed.; see Murray -o. Palmer, 2 Scho. & Lef. 
 
 1 Story Eq. Jur. §. 187, &o. [Boyce v. 474; James v. Greaves, 2 P. Wms. 
 
 Grundy, 3 Pet. U. S. 210; Lewis o. 270; Horseley i;. Chaloner, 2 Ves. 83. 
 
 McLemore, 10 Yerg. 206; Spenoe v. (fc) Phillips v. Duke of Bucks, 1 
 
 Daren, 2 Alab. 251; Pitts v. Getting- Vern. 227 ; Harduig ?>. Cox, ib. n. ; Scott 
 
 ham, 9 Porter, 671; Harris v. William- v. Langstaffe, Loffl, 797, 8, cited Fel- 
 
 son 4 Heyw. 124. See Tyler v. lows i'. Lord Gwydyr, 1 Sim. 63 ; S. C. 
 
 Black, 13 How. U. S. 231.] 1 R. &M. 83; see 1 Sugd. V. & P. 211, 
 
 (g-) Jarvis v. Duke, 1 Vernon, 19 ; 9th ed. 
 Broderick v. Broderick, 1 P. Wms. 239. 
 
TKXJSTEES BY CONSTRUCTIVE TEUST. 201 
 
 Sir Thomas Plumer, M. R., that the agreement was altogether 
 vitiated by this misrepresentation. (Q(l) 
 
 It was decided moreover by this last case, that where a fraudulent 
 misrepresentation applies to part only of the subject-matter of a 
 transaction ; the party affected with the fraud cannot support^ the 
 transaction as to the remaining parts, but the fraud will operate, if at 
 all, to vitiate and destroy the contract in toto.{m) 
 
 It seems to be immaterial whether the misrepresentation be made 
 with full knowledge of its being false, or in ignorance whether it be 
 true or false ; in either case, if it had the effect of deceiving the other 
 party, it will equally affect the conscience of the party, by whom it 
 is made ;(w) and it has even been decided to be immaterial, that the 
 false statement is made innocently' and by mistake, if the falsehood 
 has been the inducement to the other party to act.(o)^ 
 
 *The misrepresentation may be equally a matter of equi- r^-. ^^T 
 table cognizance, whether it be by deeds as by words ; by ^ 
 artifices to mislead, or by positive assertions. A court of equity, 
 said Lord Thurlow, would make itself ridiculous if it permitted a dis- 
 tinction between the two cases. (^) 
 
 However it is not every misrepresentation, even though wilful or 
 fraudulent, that will go to the extent of avoiding a conveyance or 
 agreement: nor is it fitting: as that would occasion great uncer- 
 
 [l) Clermont v. Tasburgh, 1 J. & W. {p) Neville v. Wilkinson, 1 Bro. C. 
 
 112. C. 546; see Chesterfield v. Jansen, 2 
 
 (m) S. C. 1 J. & W. 120; but see Ves. 155; 1 Story Eq. .Tur. § 192; Hu- 
 
 Lane v. Page, Ambl. 235. guenin v. Basely, 14 Ves. 273. [See 
 
 (n) Ainslie v. Meddlicott, 9 Ves. 21. State v. Holloway, 8 Blackf. 45.] 
 
 (0) Pearson v. Morgan, 2 Bro. C. C. 
 385; Burrowes v. Lock, 10 Ves. 470. 
 
 (1) In the case of Turner u. Harvey it was observed by Lord Eldon, that although 
 a purchaser is not bound to give to a vendor information as to the value of the 
 property, yet "if a word, if a single word be dropped, which tends to mislead 
 the vendor, that principle will not be allowed to operate." Turner v. Harvey, 
 Jac. 178. 
 
 'Hough V. Richardson, 3 Story, 659; Harding t). Randall, 15 Maine, 332; 
 Lewis V. MoLemore, 10 Yerg. 206 ; TurnbuU v. Gadsden, 2 Strob. Eq. 74 ; Roose- 
 velt V. Fulton, 2 Cow. 129; Smith v. Babcock, 2 Wood. & M. 246; Thompson v. 
 McCann, 4 B. Monr. 601; Lockridge v. Foster, 4 Scamm. 570; Hunt v. Moore, 
 2 Barr, 105; Joice «. Taylor, 6 G. & J. 54; Smith v. Richards, 13 Pet. 26; Cham- 
 plin V. Leighton, 6 Paige, 189. It is not material that the misrepresentation was 
 merely by an agent (Fitzsimmons v. Joslin, 21 Verm. 129 ; Brooke v. Berry, 2 
 Gill. 83) ; or by a partner. Blair ■«. Bromley, 2 Phillips, Ch. R. 354; 11 Jur. 617. 
 But if the agreement be fair between the parties, it is not invalid because 
 brought about by a third person with the intent of benefiting himself. Bellamy 
 V. Sabine, 2 Phill. Ch. 425. In the case of a written contract, parol representa- 
 tions, though erroneous, if made bona fide, must have been inserted in the instrti- 
 ment to be relieved against. Turner v. The Navigation Co., 2 Dev. Eq. 236. 
 
202 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 tainty. The fact misrepresented must be something material, and 
 such as goes to the essence of the contract.(j) Moreover the truth 
 or falsehood of the representation must lie exclusively within the 
 knowledge of the person, by whom it is made ; and it must have the 
 effect of deceiving the other party into the transaction. Thus where 
 the subject of the misrepresentation is merely a matter of opinion, 
 as for instance as to the value of the property ; or facts which lie 
 equally within the knowledge of both parties ; or statements, which 
 it is mere folly on the part of a vendor to give credence to ; for in- 
 stance the amount, which other parties would give for the property, 
 or other similar assertions ; the court will not interfere to relieve a 
 party from the consequences of his own folly or carelessness. (r)^ 
 
 It is to be observed, that the effect of misrepresentation in vitiating 
 a transactipn has been most frequently considered in suits hj the 
 fraudulent persons for the specific performance of agreements, which 
 had been obtained by the misrepresentations of the plaintiffs them- 
 selves. It is an universal rule, that a party coming into equity to 
 enforce a specific performance, must appear with clean hands ; and 
 very slight proof of improper conduct, in obtaining the agreement, 
 will be sufficient for the court to refuse to enforce its execution. 
 
 But where the court is required to interfere actively against the 
 legal or equitable rights of a party, claiming under a deed or agree- 
 ment, a much stronger case must be established ; and the subject and 
 extent of the false representation, as well as its other circumstances 
 and consequences, must be such, as according to the foregoing ob- 
 servations will clearly and unequivocally amount to a case of fraud. (s) 
 
 It is undoubtedly true that a concealment of facts, or suppressio 
 veri will not of itself constitute so strong a case of fraud as where 
 there has been suggestio falsi. Thus in the ordinary relation be- 
 tween a vendor and purchaser, it has been decided, that the mere 
 
 (g) 1 Fonbl. Eq. Ch. 2, s. 8; 1 Stor. Madd. Ch. Pr. 349; 1 Sjjgd. V. &P. 6; 
 
 Eq. Jur. n 91, 195. [Hough «. Richard- 1 Story Eq. Jur. § 197; Vernou i). Keys, 
 
 son, 3 Story R. 659 ; and see Morris 12 East, 632. [4 Kent, Comm. 484.] 
 
 Canal v. Emmett, 9 Paige, Ch. IBS'; (s) Willan v. Willan, 16 Ves. 83; 
 
 Turnbull v. Gadsden, 2 Strobh. Eq. 14.] Cgdman v. Homer, 18 Ves. 10; Mort- 
 
 (r) 1 Fonbl. Eq. Ch. 2, s. 8; 1 locke ■!). BuUer, 10 Ves. 292. 
 
 ' See 4 Kent. Comm. 483 : notes to WooUam v. Hearne, 2 Lead. Cas. Eq. 
 parti, 541; Warner v. Daniels, 1 W. & M. 90; Hough v. Richardson, 3 Story, 
 659; Eldridge ?). Jenkins, Id. 181; Belli). Henderson, 6 How. (Miss.) 311; Bestv. 
 Blackburne, 6 Litt. 51; Glasscock v. Minor, 11 Mis. 655; Jazin v. Toulmin, 9 
 Alab. 662; Smith v. Richards, 13 Pet. 26; Speiglemyer v. Crawford, 6 Paige, 
 254; Hutchinson v. Brown, 1 Clark, 408. Misrepresentations of value may 
 sometimes become material, at least in resisting specific performance ; (Best v. 
 Stow, 2 Sand. Ch. 298 ; and see Tyler v. Black, 13 How. U. S. 231 ; Spalding v. 
 Hedges, 2 Barr, 240 ;) or where there is a fiduciary relationship between the 
 parties. Spence v. Whittaker, 3 Port. 297. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 203 
 
 concealment by the purchaser of a fact, tending materially to en- 
 hance the value of the property, as for instance the existence of a 
 mine, will not of itself avoid the transaction as fraudulent ; although, 
 as has been observed by Lord Eldon, a word, a single word, tending 
 to mislead the vendor, will have that effect.(«) 
 
 But where the concealment amounts to a wilful suppression of 
 facts by a party for his own, benefit, and the consequent r+iAS"! 
 injury of another, under *circumstances, which render it his 
 duty to have disclosed those facts to the other party, and in respect 
 of which he could not innocently have remained silent, it is beyond 
 all question, that such undue concealment will amount to a case of 
 fraud, against the consequences of which the injured party will be 
 relieved by a court of equity.(M)^ 
 
 Thus where a party, in treating for a purchase of a reversion after 
 the determination of two estates for life ; carefully suppressed the 
 fact of the death of one of the tenants for life, and by that means 
 obtained a much better bargain. Lord Eldon set aside the pur- 
 chase, (a;) 
 
 (0 Fox V. Maoreth, 2 Bro. C. C. Gordon v. Gordon, 3 Swanst. 470, 7 ; 
 
 420; Turner v. Harvey, Jao. 178; 1 Bowles v. Stuart, 1 Sch. & Lef. 209; 
 
 Sugd. V. & P. 6. [Bowman v. Bute, 2 Turner v. Harvey, Jac. 169 ; Madde- 
 
 Bibb, 47; Bean v. Herrick, 3 Fairf. ford v. Austwiok, 1 Sim. 89; 1 Mad. 
 
 262.] Ch. Pr. 351; 1 Story Eq. Jur. § 204, 7. 
 
 (u) Fox V. Maoreth, 2 Bro. C. C. 420; {x) Turner v. Harvey, Jao. 169. 
 
 ' See Halls v. Thompson, 1 S. & M. 443 ; Young v. Bumpasa, 1 Freem. Ch. 241 ; 
 Torrey v. Buck, 1 Green, Ch. 366 ; White v. Cox, 3 Heyw. 79 ; Toplingt). Dooley, 
 1 Yerg. 290 ; Napier v. Elam, 6 Yerg. 108 ; Snelson v. Franklin, 6 Munf. 210. It 
 is difficult to define within what limits a concealment of material facts will be 
 fraiidulent. Mr. Justice Story, (Eq. Jurispr. ^ 207,) states it to be "the non-dis- 
 closure of those facts and circumstances, which one party is under some legal 
 or equitable obligation to communicate to the other: and which the latter has a 
 right not merely in _/bro conscientiee, hut juris et dejure, to know;" and see Laidlaw 
 V. Organ, 2 Wheat. 178. Chancellor Kent in an earlier edition of his Commen- 
 taries (2 Kent, 482) advanced the broader doctrine, " that each party is bound to 
 communicate to the other his knowledge of material facts, provided he knows 
 him to be ignorant of them, and they be not open or naked." This opinion he 
 however subsequently modified. See the remarks in Hall v. Thompson, 1 Sm. & 
 M. 482. In Bowman v. Bates, 2 Bibb, 47, 52, which was a bill to rescind a con- 
 tract of sale, it appeared that the purchaser had discovered on the land of the 
 vendor a salt spring, which greatly enhanced its value ; that he had prevented 
 the agent of the vendor (who was his brother) from giving information of the 
 fact to his principal, and had concealed the discovery by various artifices. The 
 Court of Appeals, Clarke, J., dissenting, held that the fraudulent concealment 
 avoided the contract. This case comes very near that put by Lord Thurlow in Fox 
 V. Macreth, of the mine discovered by the purchaser. 
 
 In order, however, to set aside a contract on the ground of fraudulent conceal- 
 ment, there must be direct personal fraud; no CEise of constructive notice, as 
 through an agent, of the fact alleged to be concealed, can be set up. Wilde v. 
 Gibson, 12 Jur. 527; 1 H. L. Cas. 605. 
 
204 
 
 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 And in another case where the younger of two brothers disputed 
 the legitimacy of the elder, an agreement between them for the divi- 
 sion of the family estates was rescinded by the same eminent judge : 
 the younger brother having been apprized at the time of the agree- 
 ment, that the parents had been married before the birth of the 
 elder brother, and not having communicated that fact to the elder 
 brother. («/) 
 
 And in a later case a purchase by a managing partner of his co- 
 partner's share for a sum, which he knew to be inadequate from 
 accounts which were in his possession, but which he did not commu- 
 nicate to his copartner, was set aside by the Vice-Chancellor (Sir 
 John Leach), on the ground of fraud, and the decision was affirmed 
 on appeal by Lord Brougham, G.{xx) 
 
 Where the parties to a transaction stand in a fiduciary relation the 
 one to the other, — for instance where, as in the last two cases, they 
 are members of the same family, or copartners, — the obligation to 
 disclose material facts becomes more imperative, and the fraud of 
 concealment proportionably more odious. (yy) 
 
 Imperfect information, given in a way calculated to produce a 
 false impression, is equivalent to concealment. "He," says Lord 
 Eldon, " who undertaking to give information, gives but half infor- 
 mation, in the doctrine of this court conceals. "(2) 
 
 The rules, which we have already seen to have been established 
 with respect to cases of misrepresentation ; viz., that the false state- 
 ments must be of ^uch facts as are material, and do not lie within 
 the knowledge of the other party, and must have the effect of de- 
 ceiving him into the transaction, apply a fortiori to cases of suppres- 
 sion or concealment. 
 
 Upon the same principle, where a party executes a conveyance or 
 release, which is founded on entire ignorance or mistake of his rights, 
 even though no fraudulent suggestion or practice be made use of to 
 induce him to act, a court of equity will consider it to be against con- 
 science to take advantage of the party's ignorance, and will relieve 
 against the effects of the instrument. Thus in the case put by the 
 Lord Chancellor in Pusey v. Desbouverie, if an heir-at-law through 
 ignorance of his right to a lapsed devise convey away for a trifling 
 consideration the estate, which is the *subject of the lapse, 
 L J the conveyance would not be suffered to stand good : and 
 
 (2/) Gordon v. Gordon, 3 Sw. 400. [Ogden v. Aster, 4 Sandf. S. C. 312; 
 
 Ixx) Maddeford v. Austwick, 1 Sim. Farnum v. Brooks, 9 Pick 234. So in 
 
 89; S. C. on appeal, 2 M. & K. 279; the case of solicitor and client; Hig- 
 
 and see Popham v. Brooke, 5 Russ. 8. gins v. Joyce, 2 Jones & Lat. 282.] 
 
 (1/3/) See Gordon v. Gordon, 3 Sw. (z) InWalkerti. Symonds,.3Sw.73. 
 470,7; Cooking v. Pratt, 1 Ves. 401. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 205 
 
 many other instances in -vvliich this relief has been administered might 
 be adduced.(a) 
 
 The equity in favor of the injured party will of course be stronger, 
 where the person in whose favor the instrument is made, is possessed 
 of more information as to the rights of the other party, than that 
 party himself ; for that would amount to a case of suppressio veri : (J) 
 but it has been decided, that the same relief will be administered 
 where both parties are in an equal state of ignorance. (c) 
 
 However it has been held in some cases, that where a transaction 
 is founded on mutual ignorance or mistake, not of fact but of law, 
 the court will not relieve the parties from the consequences: although 
 it is extremely difficult to define with accuracy, what will be a mis- 
 take of law, and what one of fact, so as to reconcile those cases with 
 the other decisions. (c?) Where the object of a mutual conveyance 
 under such circumstances is to arrange family quarrels, the court will 
 do its utmost to support it, and will be very reluctant to disturb the 
 arrangement solely on the ground of mere ignorance or mistake. (e)' 
 
 Where a person is in the situation of a bona fide purchaser with- 
 out notice, and has given the full value for the estate, it is clear, that 
 ignorance or mistake of their rights on the part of the vendors, will 
 not be suffered to turn to the prejudice of the purchaser, so as to 
 convert him into a trustee. (/) 
 
 (a) Turner v. Turner, 2 Ch. Rep. 81 ; M'Carthy v. Decaix, 2 R. & M. 6^2 ; 
 Pusey V. Desbouverie, 3 P. Wms. 316 : Goymour v. Pigge, 13 L. J. Ch. 322. 
 Bingham v. Bingham, 1 Ves. 126 ; (c) Willan v. Willan, 16 Ves. 72 ; 
 Ramsden v. Hylton, 2 Ves. 304; Dun- M'Carthy v. Decaix, ubi sup.; Lands- 
 nage v. White, 1 Sw. 137; Naylor v. downe v. Landsdowne, Mose. 364; S. 
 Winch, 1 S. & St. 564; M'Carthy v. C. 2 J. & W. 205. 
 Becaix, 2. R. & M. 614; Evans v. (d) PuUen «. Ready, 2 Atk. 587, 591 ; 
 Llewellyn, 2 Bro. C. C. 150; S. C. 1 Ingham v. Child, 1 Kro. C. C. 92; Mild- 
 Cox, 333; Huguenin v. Basely, 4 Ves. may i'. Hungerford, 2 Vern. 242. [Free- 
 273; Hore v. Becher, 12 Sim. 465; man i;. Cook, 6 Ired. Eq. 378.] 
 Goymour v. Pigge,. M. R., May, 1844, (e) Stockley v. Stockley, 1 V. B. 23 ; 
 8 Jur. 526. [See Tyler v. Black, 13 Gordon v. Gordon, 3 Sw. 400; Neale v. 
 How. U. S. 231; Beard v. Campbell, 2 Neale, 1 Keen, 672. [See Hoghton v. 
 A. K. Marsh, 125.] Hoghton, 12 Eng. L. & Eq. 139.] 
 
 (6) Cocking v. Pratt, 1 Ves. 400 ; (/) Molden v. Mennill, 2 Atk. 8. 
 
 'A court of equity does not in general relieve for mistake of law. Hunt v. 
 Rousmaniere, 1 Pet. S. C. 1 ; Lyon v. Rich, 2 J. C.R. 60; Story Eq. Jur. § 136, 
 where is a full discussion of the cases ; Brown v\ Armistead, 6 Rand. 594 ; Win- 
 termute's Exr. v. Snyder's A dministr. 2 Green, Ch. 498; Hinchman v. Eman's 
 Adm. Saxt. Ch. 100; Gunter v. Thomas, 1 Ired. Eq. 199; Ferguson v. Ferguson, 
 1 Geo. Dec. 135. Where, however, in a case in Kentucky the mistake was shown 
 to be that of the party's counsel, he was relieved. Fitzgerald v. Peck, 4 Littell, 127. 
 As to mistake in compromises, see Currie v. Steel, 2 Sandf. S. C. 542 ; Bradley v. 
 Chase, 22 Maine, 524 ; and notes to Stapilton v. Stapilton, 2 Lead. Cas. in Eq. 
 part ii. p. 265. 
 
206 
 
 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 It is almost unnecessary to state, that in all these cases the fraudu- 
 lent transaction will be binding on the guilty party himself; for no 
 person is allowed to take advantage of his own fraud. 
 
 And a court of equity in decreeing relief in these cases always 
 puts the party relieved upon the terms of returning any considera- 
 tion or other benefit, which he may have derived from the fraudulent 
 transaction, and this rule proceeds upon the most obvious principle 
 of equity. Upon this ground therefore, where a party, who seeks to 
 set aside a transaction on the ground of fraud, has so dealt with the 
 property, as to render it impossible to replace the other party in the 
 same condition, that he was in previously, the suit will be dis- 
 missed. (A)^ 
 
 Upon the same principle of constructive fraud, a court of equity 
 will interpose in cases, where a conveyance is so framed by mistake 
 as to include property, to which it was not intended to apply. The 
 court in such cases considers it unconscionable and fraudulent for the 
 purchaser to take advantage of the mistake, and will not suiFer him 
 r*1501 *° assert a claim to the ^possession of that, which he never 
 , bought, and which he was never intended to take.(i) 
 
 It is to be observed, that the Court of Chancery has no jurisdiction 
 to entertain a question of fraud in obtaining a will, which where it 
 relates to real estate, belongs to the consideration of a court of 
 law ;{k) and if to personal estate, is exclusively decided upon in the 
 
 (A) Anglesey v. Annesley, 1 Bro. P. K. Marsh, 343 (but see Hyne i). Camp- 
 
 C. 289: see King v. Hamlet, 2 M. & bell, 6 Monroe, 280); not however 
 
 K. 481. ^ against a iona^dc purchaser, Whitman 
 
 (i) Rarasden v. Hylton, 2 Ves. 304 ; v. Weston, 30 Maine, 285.] , 
 
 Beaumont v. Bramley, T. & R. 52; (k) James v. Greaves, 2 P. Wms. 
 
 Marquis of Exetar v. Marchioness of 270; Webb v. Claverden, 2 Atk. 424; 
 
 Exeter, 3 M. & Cr. 321 ; Lindo v. Lindo, Bates v. Graves, 2 Ves. jun. 287 ; Pem- 
 
 1 Beav. 496; see Underbill i). Horwood, berton v. Pemberton, 13 Ves. 297; but 
 
 10 Ves. 225. [Richardson v. Bleight, see Goss ■«. Tracy, 1 P. Wms. 28S;S. 
 
 8 B. Monr. 580; Whaley v. Elliot, 1 A. C. 2 Vem 700. 
 
 ' Daniell v. Mitchell, 1 Story, 173 ; Harding v. Handy, 11 Wheat. 103; Dower 
 V. Fortner, 5 Porter, 9; Jones v. Wing, Harringt. Ch. 301; Brogden v. Walker, 2 
 H. & J. 285; Martin v. Broadus, 1 Freem.Ch. 35; Waters i). Lemmon, 4 Hamm. 
 229 ; Lowry v. Cox, 2 Dana, 469 ; Gary v. Turner, 3 Bibb. 54 ; Pintard v. Martin, 
 1 S. & M. Ch. 126; White v. Trotter, 14 S. &M.'30; Keltner v. Keltner, 6 B. 
 Monr. 40; Brown v. Witter, 10 Ohio, 142; Bruen v. Hone, 2 Barb. S. C. 506; 
 Daggett V. Emerson, 1 W. & M. 195; Cunningham v. Fithian, 2 Gilm. 650; 
 ShaefFer v. Slade, 7 Black. 128. The party applying for the assistance of equity 
 on the ground of fraud, must have been prompt on the discovery of the fraud; 
 long delay will he sufficient, if unexplained, to occasion a refusal of that assist- 
 ance. Lawrence v. Dale, 3 J. C. R. 23 ; De Armand v. Phillips, Walk. Ch. 186; 
 Davis, iJ. James, 4 J. J. Marsh, 8; Barbour v. Morris, 6 B. Monloe, 208;Xacey 
 V. McMillan, 9 B. Monr. 523; Outlaw v. Morris, 7 Hump. 262; Cunningham «). 
 Fithian, 2 Gilm. 650; Ayres v. Mitchell, 3 S. & M. 603. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 207 
 
 spiritual court.(Z)^ But in some cases they appear to have interfered, 
 80 far as to declare the party, practising the fraud, a trustee for the 
 party prejudiced by it.(m) (1) 
 
 We shall see presently, that parol evidence is undoubtedly admis- 
 
 Q) Plume V. Beale, 1 P. Wms. 388 ; Devenish v. Baynes, Preo. Ch. 3 ; 
 
 Kerrick v. Barnsby, 7 Bro. P. C. 449; Barnesley v. Powell, 1 Ves. 287, 119; 
 
 Archer 1). Mosse, 2 Vern. 8; ex parte 1 Fonbl. Eq. B. 1, Ch. 2, s. 3, n. (u); 
 
 Fearon, 5 Ves. 647 ; Allen v. M'Pher- Marriott v. Marriott, 1 Str. 666 ; Segrave 
 
 son, 1 Phill. 133; 1 Mad. Ch. & Pr. v. Kirwan, 1 Beatty, 157; Buckley «. 
 
 344;Gingell'!). Home, 9Sim. 539. V^Telford, 2 CI. & Fin. 102; 8 Bligh, 
 
 (m) Herbert I). Lownes, 1 Ch. Rep. Ill; Podmore'u. Gunning, 7 Sim. 744; 
 
 13; Thynn v. Thynn, 1 Vern. 296; Kennell v. Abbott, 4 Ves. 802. 
 
 (1) The existence of this jurisdiction in equity has undergone much consideration 
 in the recent case of Allen v. Macpherson ; where a testator, having given some 
 considerable legacies and benefits to the plaintiff by his will [and codicils], and 
 made the defendant residuary legatee, by a subsequent codicil revoked the gifts 
 to the plaintiff and others [giving him a small weekly allowance for life instead] , 
 who thereupon filed his bill, alleging, that the testator was induced to make this 
 revocation by the fraudulent representations of the defendant, and seeking to have 
 him declared a trustee for him to extent of the legacies so revoked. The will 
 and codicils had been admitted to probate. The defendant put in a general 
 demurrer to this bill for want of equity, which was overruled upon argument by 
 Lord Langdale, M. R., thereby affirming the existence of this jurisdiction in the 
 court. But this decision was reversed on appeal by Lord Lyndhurst, C, who 
 allowed the demurrer. The plaintiff then appealed to the House of Lords against 
 this last decision, and that appeal is still pending. Allen v. Macpherson, 5 Beav. 
 469; 1 Phill. 133. [On the appeal the House of Lords affirmed the decision of 
 the Chancellor; Lord Lyndhurst. and Lords Brougham and Campbell, voting for 
 the affirmation ; Lords Cottenham and Langdale, forreversing. 2H. L. Cases, 191. 
 Lord Cottenham in a very able opinion endeavored to establish a distinction be- 
 tween fraud in obtaining particular provisions in a will, and fraud in obtaining 
 the will itself; but it was alleged that the ecclesiastical courts had jurisdiction in 
 either case, and the distinction was not sustained. Sir Edward Sugden', now 
 Lord St Leonards, " inclines to agree with the decision of the Lords," Law of 
 Prop. H. L. 195, note.] 
 
 ' The same doctrine has been held in the courts of equity in the United States, 
 with reference to wills which have been established in the courts of probate, 
 Colton V. Ross, 2 Paige, Ch. 396: Hamberlin v. Terry, 7 How. Miss. 143 ; Hunt 
 V. Hamilton, 9 Dana, 90 ; Blue v. Patterson, 1 Dev. & Bat. Eq. 459 ; Howell v. 
 Whitechurch, 4 Heyw. 49 ; Lyne v. Guardian, 1 Mis. 410 ; Muir v. Trustees, 3 
 Barb. Ch. 477 ; McDougell v. Peyton, 2 Desaus. 313 ; Burrows v. Ragland, 6 Hump. 
 489 ; Hunter's Will, 6 Ohio, 449; Gaines v. Chew, 2 How. U. S. 645 ; Tarver v. 
 Tarver, 9 Pet. U. S. 180 ; Gould v. Gould, 3 Story, 516 ; Watson v. Both well, 1 1 Alab. 
 653 ; see Johnston v. Glasscock, 2 Id. 233 ; Jones i). Adams, 22 Verm. 50. Where, 
 however, the party claiming against the will, is not in possession, and an impedi- 
 ment exists as to part, as, in the case of real estate, an outstanding trust terra, 
 which would prevent the contesting of the will by ejectment, he may come into 
 equity, on the ground of inadequate remedy at law; and the jurisdiction^ having 
 attached as to part, may be retained as to all. Brady v. MoCosker, 1 Comst. 
 214. The objection cannot be firstraised on appeal. Clarke v. Sawyer, 2 Com- 
 stock, 498. 
 
208 
 
 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 sible for the purpose of avoiding a written instrument on the ground 
 of fraud. In the case of Marquis of Townshend v. Stangroom it 
 was attempted to establish a distinction in this respect between cases 
 oi fraud, and of mistake or surprise; and the admission of parol 
 declarations in support of the plaintiff's case was objected to on the 
 part of the defendant; but Lord Eldon after reviewing all the 
 authorities, as well as the general principles of the court in dealing 
 with such cases, disallowed the objection and admitted the evidence.(w) 
 
 Where a person by means of his promises, or otherwise by his 
 general conduct, prevents the execution of a deed or will in favor of 
 a third party, with a view to his own benefit ; that is clearly within 
 the first head of frauds, as distinguished by Lord Hardwicke : viz., 
 that arising from facts or circumstances of imposition : and the person 
 so acting will be decreed to be a trustee for the injured party, to the 
 extent of the interest, of which he has been thus defrauded.' 
 
 Therefore where a husband of the tenant in tail in remainder by 
 force and management prevented the tenant in tail in esse, who was 
 on his deathbed, from suffering a recovery, for the purpose of pro- 
 viding for other parties out of the estate by his will : it was held by 
 Lord Thurlow, that the estate was to be considered exactly, 
 L J as if the recovery had been ^suffered, even as against the 
 tenant in tail, in whom the legal estate was vested, and who was not 
 a party to the fraud. (o) 
 
 And so where the issue in tail promised his father the tenant in 
 tail to provide for his younger children out of the estate, and thus 
 prevented his father from suffering a recovery for that purpose; 
 equity will compel the performance of the promise. (|?) 
 
 And in another case where the wife of a copyholder prevented her 
 husband from vesting the copyhold in his son after his death, by 
 promising herself to make it over to him, if he appointed her his 
 successor instead of the son, she was decreed to be a trustee for the 
 son, notwithstanding the Statute of Frauds, on the ground of the 
 fraud.(g') 
 
 (n) Marquis of Townshend v. Stan- {p) Per Cur. in Devenish v. Baines, 
 groom, 6 Ves. 328 ; see Mortimer v. Free. Ch. 5. 
 Shortall, 2 Dr. &. W. 363. (g) Devenish v. Baines, Free. Ch. 4. 
 
 (o) Luttrell v. Olmins, cited 1 1 Ves. 
 638; and 14 Ves. 290. 
 
 ' Miller v. Fearce, 6 W. & S. 97 ; Jones v. McKee, 3 Barr, 496 ; 6 Barr, 428; 
 Jenkins v. Eldridge, 3 Story, 181; Howell v. Baker, 4 J. C. R. 118; Hoge u. 
 Hoge, 1 Watts, 213; in which last case is a full discussion of the question on 
 principle and authority, by Chief Justice Gibson. In order to create the trust, 
 howevit, there must have been some fraud active or passive, in procuring the 
 deed or devise : the mere breach of a promise to convey is not sufficient. Hoge 
 V. Hoge, ut supra. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 209 
 
 And in like manner if an heir or devisee prevent a testator from 
 charging his estate with annuities or legacies, by promising them- 
 selves to make the payments, they will be trustees for the annuitants 
 or legatees notwithstanding the statute. (r) And the same principle 
 will be applied where an executor or residuary legatee prevents a gift 
 of a legacy by promising himself to pay it.(s) 
 
 Upon the same principle it is settled, that where an instrument is 
 destroyed or suppressed by the defendant, relief may be obtained in 
 equity.(«) 
 
 As if a will, by which a legacy is given, be destroyed or concealed 
 by the executor ; the legatee may obtain a decree for payment against 
 him.(M)^ 
 
 And so where a deed or will is suppressed by the heir, the party 
 claiming under the instrument has been decreed to enjoy the pro- 
 perty, and the guilty party to convey.(a;) 
 
 It was laid down as a principle by Lord Hardwicke in one case, 
 that where a deed is destroyed, and the contents of the deed are 
 proved, the party shall have the benefit of it :(«/) and this proof seems 
 to have been given in the majority of the cases. (z) 
 
 However, in one ease, where there was no evidence of a deed, 
 which a party confessed to have burned, he was ordered to be com- 
 mitted, until he admitted the deed, as stated in the bill.(a) 
 
 And in another case, where there was no exact evidence of a will, 
 
 (r) Chamberlaine «. Charaberlaine, (u) Tucker v. Phipps, 3 Atk. 360: 
 
 2 Freem. 34; Oldham v. Lichfield, 2 Hayne i;. Hayne, 1 Dick, 18. 
 
 Vera. 506 ; Mestaer v. Gillespie, 1 1 [x) Eyton v. Eyton, 2 Vera. 280, and 
 
 Ves. 638; Huguenin u Basely, 14 Ves. Preo. Ch. 116; Dalton v. Coatsworth, 
 
 290; and see Griffin 0). Nainson, 4 Ves. 1 P. Wms. 731; Woodroffe u. Burton, 
 
 344. stated 1 P. Wms. 734. 
 
 {s) Thynn v. Thynn, 1 Vern. 296 ; (y) Saltern v. Melhuish, Ambl. 249. 
 
 Reach u. Kennigate, Ambl. 67; Barrow (z) Cowper v. Cowper, 2 P. Wms. 
 
 ?). Greenhough, 3 Ves. 152; Chamber- 748; Garteside t). Radcliffe, 1 Ch. Ca. 
 
 lain V. Agar, 2 V. & B. 250 ; Podraore 292 ; Hunt v. Matthews, 1 Vera. 408 ; 
 
 V. Gunning, 7 Sim. 644. Wardour v. Beresford, ib. 452. 
 
 (/) Bates i;. Heard, Toth. 66, and 1 (a) Sanson d. Eumsey, 2 Vern. 561, 
 
 Dick. 4; 1 Madd. Ch. Pr. 424. cited 1 P. Wms. 733. 
 
 ' That equity has jurisdiction in case of a lost, suppressed, or spoliated will was 
 held in Allison v. Allison, 7 Dana, 90; Bailey v. Stiles, 1 Green. Ch. 220; Buchanan 
 V. Matlock. 8 Humph. 390; Meade v. Langdon's heirs, cited 22 Verm. 59. See • 
 Story's Equity, { 254 ; Legare v. Ash, 1 Bay (S. C), 464. In Gaines v. Chew, 2 
 How. U. S. 645, the question was raised but not decided ; the court holding that 
 the complainant was at least entitled to discovery. But in Morningstar v. Selby, 
 15 Ohio, 345, a different conclusion was arrived at after elaborate argument, and 
 the power to establish such a will held to be exclusively in the probate courts. 
 The correctness of the inference drawn from Gaines v. Chew, in this case, may, 
 however, well be doubted. As to the jurisdiction to establish suppressed deeds. 
 See Ward v. Webber, 1 Wash. Va. 274. 
 
 14 
 
210 TRUSTEES BY CONSTRUCTIVE TRUST, 
 
 that had been suppressed, the devisee was decreed to enter and enjoy 
 until the defendant produced the will, and until further order.(5) 
 r*1 '^21 *'^^^ recent case of Spencer v. Sniith(e) was a suit by de- 
 ■J visees against the heir-at-law, to obtain possession of the estate 
 on the ground of the suppression of the will by the heir ; it was 
 held by Sir K. Bruce, V. C, that proof of the existence of the will 
 was sufiScient to entitle the plaintiffs to an inquiry, and an issue 
 devastavit vel non, although no case of suppression was proved against 
 the defendant.(e) 
 
 The court in all these cases acts upon the principle, that the in- 
 struments, which would have been executed, or would have existed, 
 but for the fraud, are to be treated as if actually executed and ex- 
 isting, ((i) 
 
 With respect to the second head of fraud as distinguished by Lord 
 Hardwicke, viz., that apparent from the intrinsic value and subject 
 of the bargain itself: — It is to be observed, that mere inadequacy of 
 consideration of itself, and unaccompanied by other circumstances 
 raising a presumption of fraud, will not in general induce the court 
 to relieve from the consequences of an executed conveyance, (e)' 
 
 If a person, said Lord Hardwicke, will enter into a hard and un- 
 conscionable bargain with his eyes open, equity will not relieve him 
 upon that footing only.(/) ' 
 
 Where however the inadequacy of consideration is so gross and 
 manifest, that, as Lord Thurlow has observed, " it is impossible to 
 state it to a man of common sense, without producing an exclama- 
 
 (i) Hampden i). Hampden, cited 1 v. Bateman, 1 Bro. C. C. 22 ; Griffith v. 
 
 P. Wms. 733 ; S. C. 3 Bro. P. C. 550. Spratley, 2 Bro. C. C. 179, n.; Moth v. 
 
 (c) Spencer v. Smith, 1 N. C. C. 75. Atwood, 5 Ves. 845 ; White v. Damon, 
 
 (d) Middleton v. Middleton, 1 J. & 7 Ves. 35; Low v. Rarchard, 8 Ves. 
 W. 99 ; Saltern v. Melhuish, Ambl. 249. 133; Coles v. Trecothick, 9 Ves. 246. 
 
 (c) Wood V. Abrey, 3 Mad. 423; (/) In Willis u. Jernegan, 2 Atk. 
 Floyer u. Sherrard, Ambl. 18; Stephens 251. 
 
 ' That mere inadequacy of consideration is not in general of itself, a sufficient 
 ground of relief in equity, has been held in a number of cases in the United States. 
 Osgood V. Franklin, 2 J. C. R. 1 ; White v. Flora, 2 Overt. 426; Butler v. Haskell, 
 4 DesauB. 651 ; McCormick v. Malin, 5 Blackford, 509 ; Green v. Thompson, 2 
 Ired. Eq. 365; Dunn «. Chambers, 4 Barb. S. C. 371; Mann v. Betterly, 21 
 Verm. 326 ; Delafield v. Anderson, 7 Sm. & M. 630 ; see Farmer's Bank, v. 
 Douglass, 11 Sm. & M. 469; Holmes v. Nesh, 9 Mis. 201 ; Coster v. Griswold, 
 4 Edw. Ch. 364; Young v. Frost, 5 Gill. 287 ; Howard v. Edgell, 17 Verm. 9; 
 Westervelt v. Matheson, 1 Hoff. Ch. 37; Forde v. Herron, 4 Munf 316; 
 Erwin v. Parham, 12 How. U. S. 197. But where the inadequacy is very gross and 
 manifest, so, as has been said, as to " shock the conscience," the court will infer 
 fratld or imposition. Wright v. Wilson, 2 Yerg. 294 ; Butler v. Haskell, 4 Desaus. 
 652; desti). Frazier, 2 Litt. 118; Barnett ii. Pratt, 4 Ired. Eq. 171; Deaderich 
 V. Watkins, 8 Humph. 520; Juzan v. Toulmin, 9 Alab. 662; Seymour v. De- 
 lancy, 4 J. C. R. 222. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 211 
 
 tion at the inequality of it;"(^) the court ■will infer from that fact 
 alone, that there must have been such imposition or oppression in 
 the transaction, or such want of common understanding in the party, 
 as to amount to a case of fraud, from which it will not suffer any 
 benefit or advantage to be derived.(^) It has been remarked by 
 Lord Eldon, that " this principle is loose enough ; but it is one, by 
 which judges in equity have felt themselves bound, and to act upon 
 occasionally for the safety of mankind."(i) 
 
 But where there are other fraudulent circumstances, connected 
 with a transaction, in addition to that of inadequacy of price, as where 
 the parties stand in a fiduciary relation to one another ;(A;) or the 
 vendor is in distress or ignorance ;{l) or is not competent to protect 
 his own interests ;(m) the insufficiency of the consideration will ma- 
 terially assist the court to the conclusion, that such a case of fraud 
 is established, as to demand redress. 
 
 Those cases also, where the subject of the bargain is a reversion 
 or expectancy, seem to come directly under the head, which we are 
 now considering. 
 
 * The sale by an heir of his reversionary or expectant in- 
 terest is looked upon with peculiar jealousy and suspicion by ^ -■ 
 the courts of equity. They discountenance such transactions, as 
 opening a door to taking an undue advantage of the heir's necessi- 
 tous circumstances, and also tending to weaken the due authority of 
 a parent.(w) Such a sale therefore cannot be supported by the pur- 
 chaser against the heir, unless it be perfectly fair in every respect, 
 and untainted with actual or constructive fraud, and particularly, 
 
 ig) In Gwynne 11. Heaton, 1 Bro. C. (m) Clarkson u. Hamway, 2 P. Wms. 
 
 C. 8. 203; Gartside v. Isherwood, 1 Bro. C. 
 
 (fe) Heathcote v. Paignon, 2 Bro. C. C. 558; How v. Weldon, 2 Ves. 517; 
 
 C. 175 ; Underbill v. Horwood, 10 Ves. Addis v. Campbell, 4 Beav. 40 1. [Crane 
 
 219; Ware v. Horwood, 14 Ves. 28; v. Concklin, 2 Saxt. 346; Mann i;. Beit- 
 
 Stilwell V. Wilkins, Jao. 282. terly, 2 Verm. 326 ; Brooke v.. Gray, 2 
 
 (i) In Gibson v. Jeyes, 6 Ves. 273. Gill, 83 ; Holden v. Crawford, 1 Aik. 
 
 (k) Heme v. Meeres, 1 Vern. 465; 390; Ruraph «. Abercrombie, 12 Alab. 
 
 Gibson V. Jeyes, 6 Ves. 266. [Wright 64. It is not necessary that there 
 
 i;. Wilson, 2 Yerg. 294; Brooke u. Gray, should be actual lunacy in such case. 
 
 2 Gill, 83 ; Shaefferu. Slade, 7 Blaokf. Ibid.] 
 
 178.] (n) Call v. Gibbons, 3 P. Wma. 290 
 
 (J) Heme «. Meeres, ubi sup.; Pick- Barnadiston v. Lingood, 2 Atk. 133 
 
 ettu. Loggan, 14 Ves. 215; Murray ■;;. Gwynne v. Heaton, 1 Bro. C. C. 10 
 
 Palmer, 2 Sch. & Lef. 474; Gwynne u. Walmesly u. Booth, 2 Atk. 28. [See 
 
 Heaton, 1 Bro. C. C. 1; Wood «. Abrey, Jenkins «. Pye, 12 Pet. 241, 257; notes 
 
 3Madd. 417. [McKinneyiJ. Pinckard, to Chesterfield d. Jansen, 1 Lead. Cas. 
 
 2 Leigh, 149 ; Gasque v. Small, 2 Eq. 393.] 
 Strobh. Eq. 72; Esham v. Lamar, 10 
 B. Monroe, 43.] 
 
212 
 
 TRUSTEES BY CON-STKUCTIVB TRUST. 
 
 unless the consideration be adequate, (o) And it rests upon the pur- 
 chaser to prove the adequacy of the price, and the fairness of the 
 transaction, and not upon the heir to show its unreasonableness or 
 insufficiency.(p) And it seems that the heir having reached a mature 
 age is immaterial in this respect.(g') 
 
 These rules, however, will not be applied with the same stringency 
 to sales by auction, which carry in themselves prima facie proof of 
 sufficiency and fairness,(r) or to cases, where the sale is effected with 
 the sanction or knowledge of the parent of the heir, or the person 
 standing in loco parentis to him ;(s) or if the transaction has been 
 subsequently recognised, or acted upon by the heir,(<) 
 
 The authorities appear to warrant the application of the foregoing 
 observations to sales by those reversioners only, who combine the 
 character of heir.{l) Although an anxious protection is also ex- 
 tended by equity to persons selling reversionary interests, who are 
 not heirs ; and several cases are to be found, in which relief has 
 been afforded to such persons. On the examination of those cases, 
 however, it will be found, either that advantage had been taken 
 of the vendor's necessities to affect a favorable bargain, or that there 
 existed some other equity in favor of the vendor in addition to the 
 mere inadequacy of price. (m) 
 
 On the other hand the court has repeatedly refused to interpose 
 for the relief of a reversioner, not being an heir, from the sale of his 
 reversion, merely on the ground of the insufficiency of the conside- 
 ration. («) 
 
 (0) Knott i;. Hill, IVem. 167; Ches- Parham v. Erwin, 12 How. U. S. 
 terfield v. Jansen, 2 Ves. 125; Pea- 197.] 
 
 cock V. Evans, 16 Ves. 512; Earl of (s) King v. Hamlet, 2 M. & K. 456. 
 
 Portmore u. Taylor, 4 Sim; 182; King (t) Chesterfield v. Jansen, 2 Ves. 
 
 V. Hamlet, ib. 223; and S. C. 2 M. & 125; King v. Hamlet, 2 M.&K. 480. 
 
 K. 456; Newton v. Hunt, 5 Sim. 54; (u) Wiseman i;. Beake, 2 Vem. 121; 
 
 Bawtree v. Watson, 3 M. &K. 339. Cole v. Gibbons, 3 P. Wms. 290; 1 
 
 (p) Gowland v. De Faria, 17 Ves. Sugd. V. & P. 165; Barnadiston'u. Lin- 
 24; Davis v. Duke of Marlborough, 2 good, 2 Atk. 133: Bowers v. Heaps, 3 
 Sw. 141; Shelley v. Nash, 3 Mad. 236; V. & B. 117; Davis v. Duke of Marl- 
 Coles V. Treoothick, 9 Ves. 246 ; Earl borough, 2 Sw. 140, n. ; Addis v. Camp- 
 of Portmore v. Taylor, 4 Sim. 209. bell, 4 Beav. 401. 
 
 (g) Evans v. Cheshire, Belt's Supp. (.x) NichoUs v. Gould, 2 Ves. 422 ; 
 
 305, 6; Addis v. Campbell, 4 Beav. Henley ij. Axe, 2 Bro. C. C. 17; S. C. 
 
 401; Davis v. Duke of Marlborough, 2 2 Sw. 141, n. ; Griffith v. Spratley, 2 
 
 Wils. 146. Bro. C. C. 179,' n.; S. C. 1 Cox, 383; 
 
 (r) Shelley v. Nash, 3 Mad. 232; but Moth v. Atwood, 5 Ves. 845; Montes- 
 
 see Fox i;. Wright, 6 Mad. 111. [New- quieu v. Sandys, 18 Ves. 302; see 2 
 
 man v. Meek, 1 Freem. Ch. 441 ; see Swanst. 139, n. 
 
 (1) It was laid down by Sir Thomas Clarke, M. R., with regard to a sale by a 
 sailor of his share of prize-money at great under value, that it was reasonable to 
 regard the vendor at least in as favorable a light as a young heir. How v. Wei- 
 don, 2 Ves. 517. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 213 
 
 We now come to the third species of fraud as defined by Lord 
 Hardwicke; viz., that which is presumed from the circumstances and 
 condition *of the parties contracting. And this, added that p^ jg^-. 
 learned judge, goes farther than the rule of law, which is, L J 
 that fraud must be proved, not presumed.(y) 
 
 The deeds and other engagements of persons, who are non compo- 
 tes mentis, are in general absolutely void' at law, as well as in equity. 
 It seems, however, that if a person under such incapacity be suffered 
 to levy a fine, it will be good at law: but in such a case there is no 
 doubt, but that equity would relieve, by declaring the party taking 
 under such an assurance to be a trustee, and decreeing a recon^ 
 veyance.(3) 
 
 It has been held that mere weakness of mind alone, not amounting 
 to idiotcy or insanity, and unaccompanied with fraud, is not a suffi- 
 cient ground to invalidate an instrument.^ For, as was observed by 
 Sir Joseph Jekyl, " the court will not measure the size of people's 
 understandings or capacities ; there being no such thing as an equitable 
 capacity and a legal incapacity."(a) 
 
 This as an abstract and general proposition is undoubtedly true ; but 
 it is also equally certain, that imbecility, or weakness of under- 
 standing, must constitute an ingredient, and a most material ingre- 
 dient, in examining whether an instrument be invalid by reason of 
 fraud, or imposition, or undue influence. Therefore where the party 
 executing an instrument is a weak man, and liable to be imposed 
 upon, the court will look upon the circumstances and nature of the 
 transaction with a very jealous eye, and will very strictly examine 
 the conduct and behavior of the persons, in whose favor it is made. 
 
 {y) Chesterfield v. Jansen, 2 Ves. Ch. 2, s. 2, n. (i). [See Price t). Berring- 
 
 155. ton, 7 Hare, 394.] 
 
 (z) Rushloyt). Mansfield, Toth. Trans. (a) Osmond v. Fitzroy, 3 P. Wms. 
 
 42 ; Mansfield's case, 12 Co. 123 ; Ad- 130 ; vide et Willis v. Jernegan, 2 Atk. 
 
 dison V. Mascall, 2 Vern. 678; and 251; 1 Fonbl. Eq. B. 1, Ch. 2, s. 3, nn. 
 
 stated 3 Atk. 310; 1 Fonbl. Eq. B. 1, (p) & (r) ; 1 Madd. Ch. Pr. 373 ; 1 Story's 
 
 Eq. Jur. 5 235. 
 
 ' In the absence of fraud or notice, a lunatic's deed is only voidable. See ante, 
 note to page 46. 
 
 ^ Ex parte Allen, 1 5 Mass. 38 ; Reppy v. Gant, 4 Ired. Eq. 447 ; Mann v. Betterly, 
 21 Verm. 326; Mason v. Williams, 3 Munf. 126; Morrison v. McCord, 2 Dev. 
 & Batt. Eq. 221. It is enough if there be a legal capacity to contract, though the 
 parties .differ greatly in mental power. Hadley v. Latimer, 3 Yerg. 537; Thomas 
 V. Sheppard, 2 MoCord's Eq. 36. Mere improvidence is not enough. Green v. 
 Thompson, 2 Ired. Ch. 365. But if there are, besides weakness of intellect, 
 circumstances showing imposition or undue influence, equity will interfere. 
 Harding v. Handy, 11 Wheat. 103; Deatly v. Murphy, 3 A. K. Marsh, 472; 
 Whitehouse v. Hines, 1 Munf. 507 ; Brogden v. Walker, 2 H. & J. 285; Whelan 
 V. Whelan, 3 Cow. 537; Reppy v. Gant, 4 Ired. Eq. 447 ; Rumph v.Abercrombie, 
 12 Alab. 64. 
 
214 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 If it see that any arts, or stratagems, or any undue means, have been 
 used by them to procure such a gift ; if it see the least speck of im- 
 position at the bottom; or that the donor is in such a situation with 
 respect to the donee, as may naturally give an undue influence over' 
 Him; if there be the least scihtaia of fraud in such a case, the court 
 will and ought to interfere. (6) 
 
 Therefore wherever mental weakness exists, and there are in addition 
 other circumstances connected with the transaction, from which in- 
 gredients, as was said by Lord Thurlow, " there may be made out 
 and evidenced a collection of facts, that there was fraud or misre- 
 presentation used,"(e) the court will relieve. 
 
 Thus where the provisions of a deed executed by such a person are 
 unreasonable or extraordinary ;((^) or the consideration is nugatory 
 or insufficient ;(e) or where the instrument is stated, contrary to the 
 truth, to be made for a pecuniary consideration ;(/) or more strongly 
 [*155] ®'^^^'' ^^^'^^ *undue practising, or influence has been actually 
 used •,{g) or from the relations existing between the parties 
 will be presumed to have been used,(A)' to induce the execution of 
 the instrument, there will be no question about the exercise of this 
 jurisdiction. 
 
 The mental weakness in these cases may arise either from a 
 natural, and permanent imbecility, short only of what would support 
 a commission of lunacy ;(«) or it may be occasioned by some tempo- 
 rary illness or debility ; or by the infirmities of extreme old age.(A) 
 
 (6) Bridgman v. Green, Wilm. 61; Ch. 357; Rumph v. Abercrombie 12 
 
 S. C. 2 Ves. 627 ; and see Lord Thur- Alab. 64.] 
 
 low's remarks inGrifBn v. De VeuUe, 3 (/) Gibson v. Russell, 2 N. C. C. 104. 
 Wood. Lect. App. 16; Lord Dennegal's (g-) Portington v. Eglington, 2 Vem. 
 
 case, 2 Ves. 407; 1 Fonbl. Eq. B. 1, 189; Gartside v. Isherwood, 1 Bro. C. 
 
 Ch. 2, s.a. nn. (p)&(r); 1 Madd. Ch. C. 558; Bridgman «;. Green, 2 Ves. 627; 
 
 Pr. 375; 1 Story's Eq. Jur. ^ 236 ; Gartside Edmunds v. Bird, 1 V. & B. 542. 
 t). Isherwood, 1 Bro. C. C. 560; Black- (A) Osmond v. Fitzroy, 3 P. Wms. 
 
 ford V. Christian, 1 Knapp, 77. 130 ; Huguenin v. Baseley, 14 Ves. 273; 
 
 (c) In Griffin v. De VeuUe, 3 Wood. Griffiths v. Robins, 3 Mad. 191 ; Dentu. 
 Lect. App. 16. Bennett, 7 Sim. 539 ; and 4 M. & Cr. 269. 
 
 (d) Fane v. Duke of Devonshire, 2 (i) Lord Donegal's case, 2 Ves. 407 ; 
 Bro. P. C. 77; Bridgman v.Gieen, 2 Ves. see Osmond v. Fitzroy, 3 P. Wms. 130; 
 627 ; Dent v. Bennett, 7 Sim. 539 ; S. C. Portington v. Eglington, 2 Vern. 189. 
 4 M. & Cr. 269. [Reppy v. Gant, 4 Ired. Eq. 447.] 
 
 (e) Clarkson t). Hanway, 2 P. Wms. (4) Griffiths -u. Robins, 3 Mad. 191; 
 203; Bridgman «. Green, ubi supra; Dent «. Bennett, 7 Sim. 539. [Harding 
 Gartside v. Isherwood, 1 Bro. C. C. 558. v. Handy, 11 Wheat. 603; Whelan v. 
 [See Hutchinson v. Tindall, 2 Green's Whelan, 3 Cow. 537 ; Brice v. Brice, 5 
 
 Barb. S. C. 533.] 
 
 ' Kennedy v. Kennedy, 2 Alab. 7 ; McCraw v. Davis, 2 Ired. Eq. 618 ; Bnffalow 
 V. Buffalow, 2 Dev. & Batt. Eq. 241 ; Cruise v. Christopher, 5 Dana, 181; Whelan 
 V. Whelan, 3 Cow. 537; Whipple v. McClure, 2 Root, 216; Brice v. Brice, 5 
 Barb. Sup. C. 533; Brooke v. Gray, 2 Gill, 83. 
 
TRUSTEES BT CONSTRUCTIVE TRUST. 215 
 
 There is an insurmountable diflSoulty, said Lord Thurlow, in laying 
 down abstract propositions on such a subject, which depends upon 
 such a variety of circumstances.(Z) The efifect of the mental weak- 
 ness of a contracting party upon the judgment of the court will of 
 course depend upon the extent, to which it is supported by the evi- 
 dence in each particular case.(m) 
 
 Old age of itself is certainly no ground for relieving against the 
 execution of an instrument. (w) And even where the old age is ex- 
 treme, and attended with great infirmity, yet if there be the inter- 
 vention of a third and disinterested person, by whom the transaction 
 is explained, the instrument will not be set aside.(o) 
 
 Among the four classes of persons, who are deemed in law to be 
 non compotes mentis, Lord Coke has mentioned drunkards, as non 
 compotes by their own act.(p) But, he adds, this kind shall give no 
 privilege or benefit to them or their heirs. However even at law a party 
 may plead non est factum to a deed, which he had been made to 
 execute, when so drunk, as not to know what he was doing, (g') 
 
 Where an instrument has been executed by a person in a state of 
 intoxication, equity will not on that account alone interfere to set it 
 aside, as against the party taking under it, for that would be to 
 encourage drunkenness, (?•)' and more especially relief will be refused, 
 where the object of the instrument is, to carry into execution a 
 family arrangement, or it is fair and reasonable in its terms. (s) 
 
 But the case is very different, where there has been any contri- 
 vance or management to draw the party into drink, or some unfair 
 advantage taken of his intoxication ; for such conduct will amount 
 to a direct case of fraud, against which the court will relieve, by 
 Betting aside the deed, {t) 
 
 {I) In Att.-Gen. v. Parnther, 3 Bro. Cooke ■«. Clayworth, 18 Ves. 12; Nay- 
 
 C. C. 443. gle V. Baylor, 2 Dr. & W. 60. 
 
 (m) See Hunter v. Atkins, 3 M. & K. (s) Cory v. Cory, 1 Ves. 19 ; Cooke 
 
 146. V. Clayworth. 18 Ves. 12. 
 
 (n) Lewis v. Pead, 1 Ves. jun. 19. (<) Johnson v. Meddlicott, ubi supra; 
 
 [Gratz V. Cohen, 11 How. U. S. 1 .] Cory v. Cory, id. ; Cooke v. Clayworth, 
 
 (o) Pratt 1). Barker, 1 Sim. 1, and 4 id.; Say v. Barwick, 1 V. & B. 195; 1 
 
 Russ. 507; Hunter «. Atkins, 3 M. & K. Fonbl. Eq. B. 1, Ch. 2, s. 3, P. 67. 
 
 113. [Crane v.. Concklin, Saxt. 346; Hut- 
 
 (p) Co. Litt, 447, a. chinson v.. Tindall, 2 Green's Ch. 357 ; 
 
 (9) Cole V. Robbins, BuU.N. P. 172. Phillips v.. Moore, 11 Mis. 600; Cal- 
 
 (r) Johnson v. Meddlicott, 3 P. Wms. loway u Witherspoon, 5 Ired. Eq. 128.] 
 131, n. ; see Cory v. Cory, 1 Ves. 19; 
 
 'Morrison v. McLeod, 2 Dev. & Batt. Eq. 221 ; Hotchkiss v. Fortson, 7 Yerg. 
 67 ; Hutchinson v. Brown, 1 Clark's Ch. 408 ; Harrison v. Lemon, 3 Blackf. 51; 
 Belcheru. Belcher, 10 Yerg. 121 ; Maxwell v. Piltinger, 2 Green's Ch. 156 ; White- 
 sides V. Greenlee, 2 Dev. Eq. 152 ; see Moore v. Reed, 2 Ired. Eq. 580, and the 
 remarks in 9 Jur. p. ii. 75, 
 
216 
 
 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 It is laid down by the author of the Treatise on Equity, that 
 equity will relieve against a disposition of property, where the party 
 is so excessively drunk, that he is utterly deprived of the use of 
 r*1561 ^^^^°^ ^^^ *understanding. Because in such a case there 
 can by no means be a serious or a deliberate consent ; and 
 without this no contract can be binding by the law of nature.(M) 
 This doctrine is certainly in accordance with the maxims of the ju- 
 rists, and has been recognised with approbation by Mr. Maddock, 
 and other eminent writers on equity jurisprudence.(a;) 
 
 It has been decided, on the other hand, that equity will not at any 
 rate interfere in favor of the party who takes under an instrument 
 executed by a drunkard, to enforce its execution ; although no con- 
 trivance be used or advantage taken by him ; but the parties will be 
 left to their remedies at law.(y) 
 
 Upon the same principle of fraud, presumed from the circum- 
 stances of the parties, equity will relieve against a conveyance 
 obtained from persons in duress, or under terror, or apprehension.(s) 
 For in such cases they have no free will, but stand in vinculis. 
 
 And on this account the court looks with great jealousy upon all 
 transactions entered into by a person in a state af imprisonment ; 
 and if they are accompanied by any circumstances of imposition or 
 oppression, it will not suffer them to take effect.(a) 
 
 And so, where advantage is taken of a person's extreme necessity, 
 or distress, to obtain an advantageous bargain, the court, acting 
 upon the same principle, will give redress.(6) 
 
 However, it has been remarked by Sir John Leach, V. C, that 
 there was no head of equity more difficult of application, than the 
 avoidance of a contract on the ground of advantage taken of dis- 
 tress; and that there could be no title to such relief, unless the 
 advantage or disadvantage of the contract was within the view of 
 the parties at the time.(c) 
 
 In all these cases the title to equitable relief will of course be 
 much stronger, where several fraudulent ingredients, such as the 
 
 (tt) 1 Fonbl. Treat. Eq. 67. [Ware v. (2) Anon. 3 P. Wms. 294, n. e. ; Att.- 
 
 GibBon, 13 M. & W. 626; Clifton v. Gen. v. Sothen, 2 Vern. 497; Crowi). 
 
 Davis, 1 Pars. Eq. 31; French D.French, Ballard, 1 Ves. Jun. 220. [Gest v. 
 
 8 Hamm. 214 ; see Harrison v. Lemon, Frazier, 2 Litt. 778.] 
 
 3 Blaokf. 57; Wiggleworth v. Steers, 1 (a) Nicholls v. Nicholis, 1 Atk. 409; 
 
 Hen. & Munf. 70.] Hinton v. Hinton, 2 Ves. 634. 
 
 (a) Puffendorf, Law of Nat. B. 1, Ch. (6) Hawes v. Wyat, 3 Bro. C. C. 156; 
 
 4, s. 8; Pothier, Trait. Obligat. n. 49; Pickett v. Loggan, 14 Ves. 215; Wood 
 
 1 Mad. Ch. Pr. 398; 1 Stor. Eq. Jur. v. Abrey, 3 Mad. 417. [McCants v. 
 
 !j 231, &c. Bee, 1 McCord's Eq. 383.] 
 
 [y) Cragg V. Holme, 18 Ves. 14, n.; (c) Ramsbottom D. Parker, 6 Mad. 
 
 Shiers 0. Higgons, cited 1 Madd. Ch. 6. 
 Pr. 399 ; Nagle v. Baylor, 2 Dr. & W. 64. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 217 
 
 imbecility or distress of the parties, or inadequacy of price, &c., are 
 to be met with together in the same transaction. It is from the 
 collection of such facts, as was remarked by Lord Thurlow, that it is 
 to be made out and evidenced, that fraud or misrepresentation was 
 used.(c?) 
 
 Wherever, from the peculiar relations or connexion existing be- 
 tween the parties, considerable authority or influence necessarily 
 exists on the one side, and a corresponding reliance and confidence 
 is placed on the other, a party will not be sufi"ered to abuse this 
 authority or influence by extracting from it any advantage to him- 
 self.^ But the court will look into transactions between persons in 
 these relative situations with extreme jealousy ; and if it find the 
 slightest trace of undue influence used, or unfair advantage taken, 
 will interpose, and give redress. (e) Indeed, in some of these cases, 
 as, for instance, in dealings between guardian and ward, r*i 57-1 
 ^trustee and cestui que trust, or attorney and client, the 
 transaction is in itself considered so suspicious, owing to the near 
 connexion between the parties, as to throw the proof upon the person 
 who seeks to support it, to show that he has taken no advantage of 
 his influence or knowledge, but has put the other party on his guard, 
 bringing everything to his knowledge which he himself knew.(/) 
 
 Upon this principle, in transactions between a parent and child, 
 every contract or conveyance, whereby benefits are secured to parents 
 by their children, must be perfectly fair and reasonable in all its 
 
 (d) In Griffin v. De VeuUe, 3 Wood. Cow. 537 ; Brice v. Brioe, 5 Barb. S. C. 
 
 Lect. App. 16. 533 ; Taylor 1;. Taylor, 8 How. 183.] 
 
 (c) Filmer 1). Gott, 7 Bro. P. C. C. 70 ; (/) Gibson v. Jeyes, 6 Ves. 276; 
 
 Gartside D. Isherwood, 1 Bro. C. C.560; Hunter u. Atkins, 3 M. &K. 135. [See 
 
 Hunter v. Atkins, 3. M. & K. 135; 1 the remarks in Cooke v. Lamotte, 12 
 
 Mad. Ch. Pr. 172, 406; 1 Story's Eq. Eng. L. & Eq. 34.] 
 Jur. § 307, &c. [Whelan v. Whelan, 3 
 
 'For a statement of the principles on which equity acts in cases of this kind, 
 see Ahearne v. Hogan, 1 Dru. 310; Espey v. Lake, 16 Jur. 1106; Hoghton «. 
 Hoghton, 11 Eng. L. & Eq. E. 138; and Cooke v. Lamotte, Id. 26; where the 
 cases are fully commented on. In Cooke v. Lamotte, the Master of the Rolls 
 lays down the rule in the broadest terms, comprehending within its scope every 
 case where " a person takes a benefit from another to the prejudice of that per- 
 son, and to his own benefit;" and he considers, as a general proposition, that it 
 is requisite that the former " should be able to establish that the donor acted 
 voluntarily and deliberately, knowing what he did." The particular case was 
 that of a post obit bond executed by an aunt to a nephew residing with herj so as 
 to render irrevocable a will executed in his favor; the transaction being through 
 the medium of a solicitor employed by the nephew, and the circumstances 
 showing that she was not aware of the efl^ct of the instrument. The bond was 
 declared void. See, in the United States ; Buflaloe v. Buifaloe, 2 Dev. & Batt. 
 241; Taylor v. Taylor, 8 How. U. S. 183; Greenfield's Estate, 14 Penn. St. R. 
 504. 
 
218 
 
 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 terms and circumstances, or otherwise it will be liable to be set 
 aside.(^) 
 
 However, before this -will be done, it will be necessary to prove 
 the exercise of undue influence, or to establish some other case of 
 actual or constructive fraud against the parent.(A) 
 
 For it has been repeatedly decided that a transaction of this nature 
 between a parent and child will be supported as a family "arrange- 
 ment, notwithstanding the relationship between the parties, if it be 
 in other respects reasonable and proper,(i) and more especially if it 
 be such as will conduce to the benefit of the child.(/fc) And it is not 
 necessary that the parent and child, in dealing with a third person, 
 should act by separate solicitors.(Z)' 
 
 And even if there do exist circumstances connected with the trans- 
 action which might induce the court to relieve against it, the com- 
 plaint must be made at the time, and not after the father's death, or 
 when, by the act of the son, as his marriage, other persons have 
 
 (g-) Blunden v. Barker, 1 P. Wms. 2 Cox, 263. [Findlay v. Patterson, 2 
 
 639; Heron v. Heron, 2 Atk. 161; B. Monr. 76.] 
 
 Young i;. Peachy, ib. 258; Carpenters. (i) Blackborn v. Edgly, 1 P. Wms. 
 
 Heriot, 1 Ed. 328; Cocking ri. Pratt, 1 607; Cory u. Cory, 1 Ves. 19; Browne, 
 
 Ves. 401 ; 1 Mad. Ch. Pr. 406; Story's Eq. v. Carter, 5 Ves. 877 ; Tendrill v. Smith, 
 
 Jur. § 308 ; Wallace v. Wallace, 2 Dr. & 2 Atk. 85; Cooke v. Burtchaell, 2 Dr. & 
 
 W. 452, 470. W.165;Tweddellu.Tweddell,T.&E.14. 
 
 (A) Cocking v. Pratt, 1 Ves. 401; as (A) Kinchant v. Kinchant, 3 Bro. C. 
 
 in Heron v. Heron, 2 Atk. 161; Young C. 374. [But see the remarks on this 
 
 V. Peachy, ib. 558; Glisson v. Ogden, case in Hoghton «).Hoghton, 11 Eng.L. 
 
 citedib.;CarpenterD.Heriot, 4Ed. 328; & Eq. 141.] 
 
 Hawes V. Wyatt, 3 Bro. C. C. 156; S.C. (;)Cookeu.Burtchaell,2Dr.&W.165. 
 
 ' The principle to be deduced from the cases on this subject is thus stated in 
 Hoghton V. Hoghton, 11 Eng. L. & Eq. 142, by the Master' of the Rolls (Sir John 
 Romilly)": " If the settlement of the property be one in which the father acquires 
 no benefit not already possessed by him, and if the settlement be a reasonable 
 and proper one, the court will support it, even though it appear that some influ- 
 ence was exerted by him to induce the son to execute it. But it must also 
 appear that there was no suppression of what is true or suggestion of what is 
 false." But the presumption is, in the case of pecuniary transactions between 
 parent and child, just after the child attains the age of twenty-one, and before 
 " complete emancipation," without any benefit moving to the child, that an undue 
 influence has been used to procure that liability on the part of the child; and 
 it is the'TDusiness of the party who endeavors to maintain such a transaction to 
 show that this presumption is adequately rebutted. Hoghton v. Hoghton, Id. 139 ; 
 Archer 1). Hudson, 7 Beav. 551. Thus, the resettlement of family estates between 
 a father and a son, where the father obtains extensive advantages, will not be 
 supported in the absence of unequivocal proof that the whole of the facts were 
 known to the son, the purposes of the deed fully explained to him, and the opera- 
 tion of the respective provisions known to him. Ibid. As to the doctrine of courts 
 of equity in the United States with regard to conveyances from child to parent, see 
 Slocum V. Marshall, 2 W. C. C. R. 397; Taylor v. Taylor, 8 How. U. S. 183, where 
 the rule was very stringently enforced; and Jenkins v. Pye, 12 Peters, 249. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 219 
 
 acquired an interest in supporting the validity of the transaction in 
 question.(m) 
 
 In the case of gifts or conveyances to a guardian hy his ward on 
 coming of age, the ground for equitable relief is far stronger. The 
 court, acting in such cases on the broad principle of public utility, 
 will interpose and relieve against such transactions, although in the 
 particular instance there may not be any actual unfairness or impo- 
 sition.(n) If any improper advantage be taken, that will of course 
 constitute a yet stronger case for relief.(o) 
 
 And where a gift, purporting to be bounty for the performance of 
 antecedent duties, is made but recently after the ward has attained 
 his full age, " where the connexion is not dissolved,, the account not 
 settled, everything remaining pressing upon the mind of the party 
 under the care of the guardian," it has been observed by Lord 
 Eldon, that it is almost impossible that the transaction shall stand.(p) 
 
 *In one case indeed a voluntary conveyance by one lately r*! cgi 
 come of age to an agent, who had acted in the management ^ 
 of his estates during his infancy, was partially supported by Sir J. 
 Strange, M. R., as not being a case of fraud ; although some relief 
 was given, by modifying the instrument in respect of some objection- 
 able covenants : — But that case seems to have been decided on its 
 special circumstances, and the general tendency of the observations 
 of the Master of the Rolls in his judgment was in accordance with 
 the doctrine as stated above.(5') • 
 
 This doctrine depends upon the continuance of the connexion or 
 influence between guardian and ward, notwithstanding the latter may 
 have come of age : as where the estate remains in the guardian's pos- 
 session, or the accounts are unsettled, or where no sufficient time has 
 elapsed, to emancipate the mind of the ward from the bias, or preju- 
 dices of infancy. (»•) But undoubtedly if the ward, after coming of 
 age, and being actually put in possession of his estate, and after the 
 accounts are settled, thinks fit, when sui juris and at liberty, and 
 after taking it into his fair, serious, and well-informed consideration, 
 
 (m) Brown v. Carter, 5 Ves. 877. partition cannot purchase at the sale 
 
 (n) Pierce v. Waring, cited 1 Ves. (Gallatin ■«. Cunningham, 8 Cow. 361), 
 
 380, and 2 Ves. 548 ; Hylton v. Hylton, nor a testamentary guardian of a de- 
 
 2 Ves. 547; Hatch v. Hatch, 9 Ves. visee at a sale of the testator's land 
 
 297 ; Dawson v. Murray, 1 Ball & B. under a surrogate's order. Bostwiok v. 
 
 229; Aylward v. Kearney, 2 ib. 463; Atkins, 3 Corastock, 53.] 
 
 Wood V. Downes, 18 Ves. 126 ; Hunter (o) Mulhallen v. Marum, 3 Dr. & W. 
 
 V. Atkins, 3 M. & K. 135. [Johnson v. 317. 
 
 Johnson, 5 Alab. 90 ; Somes v. Skinner, (p) In Hatch v. Hatch, 9 Ves. 296. 
 
 16 Mass. 348 ; Scott v. Freeland, 7 Sm. (j) Gary v. Mansfield, 1 Ves. 379. 
 
 & M. 410; Williams v. Powell, 1 Ired. (r) Wright v. Proud, 13 Ves. 138; 
 
 £q. 460; Gaplinger v. Stokes, Meigs Dawson v. Murray, 1 B. & B. 232, 6. 
 
 (Tenu.), 175. Guardian ad litem in [Williams v. Powell, 1 Ired. Eq. 460.] 
 
220 TBUSTBES BY CONSTRUCTIVE TKUST. 
 
 to grant any reasonable reward to his guardian for having honestly; 
 and faithfully discharged his duty, the court will not set that aside. 
 But then it will be for the party, claiming under such a gift, to 
 satisfy the conscience of the court, that the act is of that nature, 
 which ought to be supported.(s) 
 
 The same principles will be applied to similar transactions in favor 
 of quasi guardians, such as confidential stewards or advisers ;(f) or a 
 keeper of an asylum, under whose care the party making the gift had 
 been placed.(M)' ^ 
 
 The same doctrine also holds good with respect to transactions be- 
 tween a trustee and his cestui que trust : indeed the cases are usually 
 treated as identical.(a;)(l)^ 
 
 (s) Hylton v. Hylton, 2 Ves. 549 ; Gray v. Mansfield, 1 Ves. 379 ; Revelt 
 
 Hatch V. Hatch, 9 Ves. 206, 7 ; 1 Mad. v. Harvey, 1 S. & S. 502 ; Huguenin 
 
 Ch. Pr, 172; 1 Story's Eq. Jur. ^ 320. v. Baseley, 14 Ves. 273. 
 
 [Caplingerw.Stokes,Meigs'sTenn. 175; (u) Wright u. Proud, 13 Ves. 136. 
 
 Scott V. Freeland, 7 Sra. & M. 420.] (a:) Hatch v. Hatch, 9 Ves . 296 ; 
 
 («) Trevelyan v. Charter, Rolls, 2d Hylton i;. Hylton, 2 Ves. 549 ; Hunter ii. 
 
 June, 1835 [affirmed 11 CI. & F. Atkins, 3 M. & K. 135. 
 714; 8 Jur. 1015. See 9 Beav. 140] ; 
 
 (1) The equitable doctrine, now under consideration, does not apply to a mere 
 dry trustee, such as a trustee to preserve contingent remainders. Parkes v. White, 
 11 Ves. 226. [Nor is a devisee of land subject to a legacy so far a trustee for 
 the legatee, as to prevent him from purchasing it at a profit. Powell v. Murray, 
 2 Edw. Ch. 636. So a purchase by a mortgagee is not within the rule. Knight 
 V. Majoribanks, 2 Mac. & G. 10 ; 2 Hall & Tw. 308 ; Murdock's case, 2 Bland, 
 461. Otherwise, if there be a power of sale. Waters v. Givens, 11 CI. & F. 684.] 
 
 And it applies only to transactions arising on contract inter vivos, for gifts by will 
 alwaiys imply bounty, and there is nothing to prevent a trustee from receiving 
 a benefit from his cestui que trust, when conferred by will. [And a conveyance 
 to a trustee by cestui que trust, otherwise voidable, may be confirmed by will; 
 when it will not be necessary for the trustee to show fair dealing in obtaining the 
 confirmation. Stump v. Gaby. 22 L. J. Ch. 353.] 
 
 ' So with regard to medical advisers. Ahearne v. Hogan, 1 Drury, 310; Bil- 
 ling V. Southee, 16 Jur. 188; 10 Eng. L. & Eq. 37. See Whitehorn t). Hines, 
 1 Munford, 559. The mere fact, however, of a grantee being the physician to 
 his grantor, who was suffering under a chronic disease, was held not to affect a 
 transaction otherwise valid. Daggett v. Lane, 12 Missouri, 215. 
 
 ' This has been decided in a great number of cases, among which are Davone 
 V. Fanning, 2 J. C. R. 252 ; Child v. Bruce, 4 Paige, 309; Campbell u. Johnston, 
 
 1 Sandf. Ch. 148; De Bevoise u. Sandford, 2 Hoff'. Ch. 192; Stuart v. Kissam, 
 
 2 Barb. S. C. 493 ; Michaud v. Girard, 4 How. U. S. 503 ; Matthews v. Drogaud, 
 
 3 Desaus. 25 ; Boyd v. Hawkins, 2 Ired. Eq. 304 ; Davis v. Simpson, 5 H. & J. 147 ; 
 Richardson v. Jones, 3 G. & J. 163 ; Armstrong 'd. Campbell, 3 Yerg. 201 ; Les- 
 see of Moody V. Vandyke, 4 Binn. 3 1 ; Bruch v. Lantz, 2 Rawle, 392 ; Painter v. 
 Henderson, 7 Barr, 48 ; Shelton v. Homer, 5 Mete. 462 ; Johnson v. Blackman, 
 11 Conn. 343; Brackenridge v. Holland, 2 Blaokf. 377; Thompsons Wheatly, 
 5 Sra. & M. 499 ; Soroggins v. McDougald, 8 Alab. 382; and see cases cited in 
 notes to Fox v. Maoreth, 1 Lead. Cas. Eq. 37, &c. The rule does not in general 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 221 
 
 The court does not say, that a trustee shall in no case take bene- 
 ficially by gift or purchase from his cestui que trust : but such is the 
 general rule ; and this rule depends on the same principles, and is 
 applicable to as great an extent, as that, which governs similar 
 transactions between guardian and ward.(y) And, as was observed 
 by Lord Bldon, it is a difficult case to make out, wherever it is con- 
 tended, that the exception to this rule prevails, (z) 
 
 In the same case the same learned judge laid it down, that " a 
 trustee *may buy from the cestui que trust, provided there is ^ 
 
 a distinct and clear contract, ascertained to be such after a, '- ^ 
 jealous and scrupulous examination of all the circumstances, that the 
 cestui que trust intended the trustee should buy ; and there is no 
 fraud, no concealment, no advantage taken, by the trustee of infor- 
 mation acquired by him, in the character of tru8tee."(a) 
 
 Upon similar principles where a purchase is made by a trustee, or 
 guardian, of the trust property, or any part of it, from himself ; 
 such a transaction is looked upon with even greater odium and suspi- 
 cion, than where the dealing is between the trustee and his cestui que 
 trust. It was laid down by Lord Erskine, that without any consi- 
 deration of fraud, or looking beyond the relation of the parties such 
 a contract is void, as interdicted by the policy of the law. (J) And 
 although the authorities seem scarcely to warrant that assertion in its 
 extreme sense ; yet it is indisputably established, that such a trans- 
 action will not be allowed to prevail under any circumstances, during 
 the continuance of the fiduciary character of the purchaser, unless it 
 be made under the sanction of the Court, or with the full concurrence 
 and consent of the persons beneficially entitled to the property, who 
 
 ({/) Heme v. Meeres, 1 Vern. 465; (z) In Coles v. Trecothick, 9 Ves. 
 
 Ayliffe v. Murray, 2 Atk. 59; Fox v. 247. 
 
 Macreth, 2 Bto. C. C. 400; Coles v, (a) Coles v. Trecothick, ubi supra; 
 
 Trecothick, 9 Ves. 234 ; exparte Lacey, see Morse v. Royal, 12 Ves. 372 ; Nay- 
 
 6 Ves. 625; Morse v. Royal, 12 Ves. lor v. Winch, 1 S. & St. 567; and this 
 
 372; Hunter 1). Atkins, 3'M. & K. 135; subject further considered, post [page 
 
 Whichcote v. Lawrence, 3 Ves. 740; 536, and notes]. 
 
 Scott V. Davis, 4 M. & Cr. 87; Kerr (i) In Morse v. Royal, 12 Ves. 372. 
 V. Lord Dungannon, 1 Dr. & W. 509, 
 541. 
 
 apply to the cestui que trust. Walker v. Brungard, 1 3 Sm. & M. 72 ; but see Ches- 
 ter V. Greer, 5 Humph. 26 ; and Wade v. Harper, 3 Yerg. 383, where it was held 
 that where a debt is secured by a deed of trust, the creditor having the power to 
 direct and control the sale, cannot purchase the trust property so as to make a 
 profit thereon; and that such sale is voidable as to other creditors and the 
 assignor. A sale by the trustee to his cestui que trust, is equally voidable by him 
 with a purchase by the former. McCanty v. Bee, 1 McCord's Ch. 383. See post, 
 535, and notes. 
 
222 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 of course in that case tnust be competent to consent ; and even then 
 it will regarded with great suspicion, (c) 
 
 In the absence of such corroborative circumstances a purchase of 
 this nature, however fair and honest in itself, is voidable at the option 
 of the cestui que trust : nor is it necessary to show, that the trustee 
 has made any profit, or obtained any advantage by this purchase ;(c?) 
 although it will be supported against the purchaser, if found to be 
 beneficial to the trust estate.(e) And it is immaterial in this respect, 
 that the purchase is made at a public sale by auction ; (/) or by an- 
 other person as agent for the trustee. (5^) / 
 
 This doctrine applies not only to trustees strictly so called, but 
 also to persons standing in a similar situation ; (h) such as executors 
 dealing with the estate of their testator ;(i)' or committees with the 
 
 (c) Campbell v. Walker, 5 Ves. 678 ; Walker, 3 Ves. 678. [Beeson v. Bee- 
 ex parte Lacey, 6 Ves. 625 ; Lister v. son, 9 Barr. 279 ; Bostwick v. Atkins, 
 Lister, ib. 631 ; Downes v. Grazebrook, 3 Comst. 53.] 
 
 3 Mer. 208 ; Fox v. Macreth, 2 Bro. {g) Campbell v. Walker, 5 Ves. 678. 
 C. C. 400; ex parte Bennett, 10 Ves. [Hawley v. Cramer, 4 Cow. 717; Da- 
 385. voue v. Fanning, 2J. C. R. 252; Hunt 
 
 (d) Ex parte Haines, 8 Ves. 348 ; ex v. Bass, 2 Dev. Eq. 292.] 
 
 parte Bennett, 10 Ves. 393. (A) Greenlaw v. King, 3 Beav. 49; 
 
 (e) Lister v. Lister, 6 Ves. 631; ex affirmed, S. C. 10 Law Journ. N. S., 
 parte Reynolds, 5 Ves. 707; Sanderson Chanc. 129. [Van Epps v. Van Epps, 
 «). Walker, 13 Ves. 603. [McClure ti. 9 Paige, 237 ; Beeson u. Beeson, 9 Barr. 
 Miller, 1 Barb. Ch, 107 ; Thorp v. Mo- 284.] 
 
 CuUum, 1 Gilm. 624.] (i) Ex parte Lacey, 6 Ves. 628 ; ex 
 
 (/) Whelpdale v. Cookson, 1 Ves. 9 ; parte James, 8 Ves. 346 ; Whatten v. 
 
 Lister v. Lister, 6 Ves. 631 ; Sanderson Toone, 5 Mad. 54; Watson v. Toone, 
 
 V. Walker, 13 Ves. 601; Downes u. 6 Mad. 153; Cooke «. Collinridge, Jac. 
 
 Grazebrook, 3 Mer. 200 ; Campbell v. 607. 
 
 ' Executors and administrators are in most of the United States considered so 
 far trustees as to be incapacitated from purchasing directly or indirectly their 
 testator's estate. Davoue v. Fanning, 2 J. C. R. 252 ; Michaud v. Girard, 4 How. 
 U. S. 504; Drysdale's Appeal, 14 Penna. St. R. 531 ; Beeson v. Beeson, 9 Barr. 
 279 ; Lessee of Moody v. Vandyke, 4 Binn. 31 ; Winter v. Green, 1 Halst. Ch 
 319; Ward v. Smith, 3 Sandf. Ch. 592; Amer v. Browning, 1 Bradf. (N. Y.) 321; 
 Rogers v. Rogers, 3 Wend. 503 ; Conway v. Green, 1 H. & J. 151; Hudson v. Hud- 
 son, 5 Munf. 180; Bailey ■«. Robinson, 1 Gratt. 4; Edmonds v. Crenshaw, 1 
 McCord'sCh. 252; Baines v. MoGee, 1 Sm. &M. 308 ; Brackenridge v. Holland, 2 
 Blackf. 377; and cases cited 1 Lead. Cas. Eq. (1st Am. Ed.) 139. A diiferent 
 rule has been applied in South Carolina and Alabama as to personalty. Stallings 
 V. Freeman, 2 Hill'sEq. 401 ; Julian ti. Reynolds, 8 Alab. 680; Saltmarshi). Beene, 
 
 4 Port. 283. That the purchase is made by the intervention of a third person is 
 not material. Beaubien t). Ponpard, Harr. Ch. 206; Woodruff d. Cook, 2 Edw. 
 Ch. 259; Hawley v. Cramer, 4 Cow. 717; Davoue v. Fanning, 2 J. C. R. 252; 
 Hunt V. Bass, 2 Dev. Eq. 292; Paull v. Squibb, 12 Penna. St. B. 296; Buckler i). 
 Lafferty, 2 Rob. Va. 394. But if the sale be bona fide to a stranger, an executor 
 is not incapacitated from repurchasing for himself; nor will the employment of 
 the first vendee's notes in payment be evidence of a rescission. Silverlhom v. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 223 
 
 estate of the lunatic •,{k) or commissioners, assignees, or solicitors 
 of a bankrupt or insolvent estate purchasing any portion of the as- 
 sets ;(Z)^ or the agent of the trustee who becomes the purchaser of 
 the trust property ;(m) or a governor of a charity taking a lease of 
 the lands of the charity •,{n) or an *agent for buying(o) or 
 selling(p) property, buying or selling, for or to himself.(o)^ L ^ 
 
 (i) Wright tJ. Proud, 13 Ves 136. Fawcett v. Whitehouse, ib. 132; Tay- 
 
 {l) Ex parte Hughes, 6 Ves. 617 ; ex lor v. Salmon, 4 M. & Cr. 134 ; Lawless 
 
 parte Lacey, ib. 625; ex parte Bennett, v. Mansfield, 1 Dr. &W. 557, 629; Mo- 
 
 10 Ves. 381 ; ex parte Morgan, 12 Ves. lony v. L'Estrange, Beat. 406 ; Charter 
 
 6; ex parte Reynold, 5Ves. 707; Morse v. Trevelyan, 8 Jur. 1015; 11 CI. & F. 
 
 V. Royal, 12 Ves. 372. 714. 
 
 (m) Downes v. Gravebrook, 3 Mer. (p) Lowther v. Lowther, 13 Ves. 95; 
 
 200. [Cram v. Mitchell, 1 Sandf. Ch. Trevelyan v. Charter, Rolls, 2d June, 
 
 251 ; Buckler v. LafTerty, 2 Rob. Va. 1835 [affirmed 11 Cl.&F. 714]; Wood- 
 
 294.] house V. Meredith, IJ. & W. 204 ; Whit- 
 
 , (n) Att.-Gen. v. Earl of Clarendon, combi;. Mincliin, 5Mad. 91. [Lewis i). 
 
 17 Ves. 500. Hillman, 3 H. L. Cas. 607.] 
 
 (o) Lees v. Nuttall, 1 R. & M. 53 ; 
 
 McKinster, 12 Penna. St. R. 67. The fact that the sale has been made by order 
 of the proper court, as for the payment of debts even though the order was not 
 procured by himself, will not protect the executor. Rham v. North, 2 Yeates, 1 17; 
 Beeson v. Beeson, 9 Barr. 279 : Wallington's Estate, 1 Ashm. 307. See Camp- 
 bell II. Johnson, 1 Sandf. Ch. 148 ; Torrey v. Bank of Orleans, 7 Hill, 260. A 
 purchase by an executor jointly with others, makes the whole sale voidable, 
 Paul i;. Squibb, 12 Penna. St. Rep. 296; Mitchum v. Mitchum, 3 Dana, 260. 
 Such a sale, however, is not absolutely void (unless there be actual fraud on the 
 part of the purchaser, see Hudson v. Hudson, 5Munf 180; Van Horn v. Fonda, 
 5 J. C. R. 388) ; but may be confirmed by the heirs or legatees directly, (Pen- 
 nock's Appeal, 14 Penna. St. R. 446; Bruch v. Lantz, 2 Rawle, 392; Dunlap v. 
 Mitchell, 10 Ohio, 117; Longworth ti. Goforth, Wright, 192; Harrington v. Brown, 
 5 Pick. 519; Moore v. Hilton, 12 Leigh,',2 ; Williams's Ex'rs. v. Marshall, 4 G. & 
 J. 377; Scott V. Freeland, 7 Sm. & M. 410), or by long acquiescence. Jenison 
 V. Hapgood, 7 Pick. 1 ; Musselman v. Eshelman, 10 Barr, 394; Todd v. Moore, 
 1 Leigh, 457 ; Hanley v. Cramer, 4 Cowen, 719; Ward v. Smith, 3 Sandf Ch. 
 592; Bell V.Webb, 2 Gill (Maryl.), 164. As to what constitutes such acquies- 
 cence, see page 168. A confirmation by legatees or heirs, however, will not 
 affect the rights of creditors. Bruch v. Lantz, 2 Rawle, 392. 
 
 A purchaser from an administrator who has bought at his own sale, is charged 
 with notice of the trust, it being apparent on the face of the deed. Ward v. Smith, 
 3 Sandf Ch. 592. 
 
 ' See Fisler v. Sorber, 6 W. & S. 18 ; Chapin v. Wood, 1 Clark, 464 ; Dorsey 
 V. Dorsey, 3 H. & J. 410; Saltmarsh v. Beene, 4 Porter, 28; Beeson v. Beeson, 
 9 Barr, 284; Wade v. Harper, 3 Yerg. 483 ; Harrison v. Mocks, 10 Alab. 185. 
 
 "Parkhurst t). Alexander, 1 J. C. R. 394; Sweet w. Jacocks, 6 Paige, 364; Piatt 
 V. Oliver, 2 McLean, 267; 3 How. U. S. 353; Myers's Appeal, 2 Barr, 463; 
 Bank of Orleans v. Torrey, 7 Hill, 260; S. C. 9 Paige, 653; Church v. Ins. 
 Co., 1 Mason, 341; Bank v. Judah, 8 Conn. 146; Copeland o. Marine Ins. Co., 6 
 Pick. 198; Rankin v. Porter, 7 W. 387 ; Teakle v. Bailey, 2 Brockenb. 44; so of 
 an agent to pay taxes, Oldham v. Johns, 5 B. Monr. 467 ; or a cashier of a bank; 
 Bank of Orleans v. Torrey, 7 Hill, 260. So evert though entitled to buy, if agent 
 buys secretly in the name of a stranger. Lewis v. Hillman, 3 House L. Cas. 
 629 ; per Lord St. Leonards. 
 
224 
 
 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 In none of these instances will the transaction be suffered to prevail 
 against the equitable rights of the injured parties. 
 
 And on the same principle where a person, standing in any of the 
 above-mentioned fiduciary relations, takes advantage of his situation 
 to obtain any personal advantage out of the trust property, by a re- 
 sale of any portion that he may have purchased, or by a renewal of 
 a beneficial lease in his own name, or by dealing otherwise with the 
 trust estate, he shall not retain the same for his own benefit, but 
 shall account for it, as a trustee of the parties entitled to the corpus 
 of the estate. (5) 
 
 The same doctrine and principles will be applied to transactions 
 between an attorney and his client, during the continuance of that 
 relation. A gift to an attorney, or a purchase by him from his client, 
 is not absolutely prohibited by the rules of the court (although the 
 dictum of Lord Erskine in Wright v. Proud,(r) would seem to carry 
 the doctrine even to that extent in case of a gift), but the court, b'e- 
 fore it will support the validity of such a transaction, requires to be 
 fully satisfied that it is unaffected by fraud of any description, either 
 actual or constructive ; and the burden of establishing its perfect 
 fairness, adequacy, and propriety, rests with the attorney. («) There- 
 fore if such proof cannot be given, the case will be treated as one of 
 constructive fraud, and the transaction will be set aside.(<) 
 
 And this will be more especially the case, where the gift or sale is 
 made to an attorney during the continuance of litigation, of which 
 
 (g) Ex parte Hughes, 6 Ves. 617; Edwards v. Meyrick, 2 Hare, 60,68. 
 Whichcote v. Lawrence, 3 Ves. 740; [Howellw.Ransoin,ll Paige, 538; Haw- 
 Griffin V. Griffin, 1 Sch. & Lef. 352; ley v. Cramer, 4 Cow. 717; Miles?). 
 Docker v. Somes, 2 M. & K. 655, and Irwin, 1 McCord's, Ch. 524; Evans v. 
 cases cited; Killick v. Flexney, 4 Bro. Ellis, 5 Denio, 640.] 
 C. C. 161 ; Whepdale v. Cookson, 1 (i) Newman v. Payne, 2 Ves. jun. 
 Ves. 9. [See notes, post, 537.] 199; Wells v. Middleton, 1 Cox, 112, 
 
 (r) Wright v. Proud, 13 Ves. 138; and 4 Bro. P. C. 245; Walmsley v. 
 
 and see Lord Eldon's observations in Booth, 2 Atk. 30 ; Gibson v. Jeyes, 6 
 
 HatchD.Hatch,9 Ves. 296, 7,andMon- Ves. 277; Wood v. Downes, 18 Ves. 
 
 tesquieuiJ. Sandys, 18 Ves. 313; Wood 120; Champion v. Rigby, 1 R. & M. 
 
 ■w. Downes, ib. 127. [Berrien ■!). McLane, 539; Uppington v. BuUer, 2 Dr. & W. 
 
 1 HofF. Ch. 421. But see notes (s) and 184. [Merritt v. Lambert, 10 Paige, 
 
 («).] 357 ; S. C. 2 Den. 607, suh mm. Wallis 
 
 (s) Harris u.Tremenhere, 15 Ves. 34; v. Lambert; Mott i). Harrington, 12 
 
 Cane v. Lord Allen, 2 Dow. 289 ; Mon- Verm. 199 ; Greenfield's Estate, 2 Harris 
 
 tesquieu v. Sandys, 18 Ves. 302; Bel- (Penn.), 489; Barry U.Whitney, 3 Sandf. 
 
 low V. Russell, 1 Ball. & B. 104, 7; S. C. 696; Howell ij. Ransom, 11 Paige 
 
 Champion v. Rigby, 1 R. & M. 539 ; 538. See Lewis v. Hillman, 3 House 
 
 Hunter v. Atkins, 3 M. & K. 135, 6 ; L. Cas. 607.] 
 
 ' Where a trustee or agent agrees to accept a benefit from an intended pur- 
 chaser, the sale cannot be sustained. Bailey v. Watkins, Sugden, Law of Pro- 
 perty, 726. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 225 
 
 he has the management ; particularly if it be connected with the 
 subject of the suit.(M) 
 
 The same rules will not apply, where the relation of attorney and 
 client, as well as the influence arising from that relation, has com- 
 pletely ceased •,{x) nor where the attorney is dealt with by the client 
 in the particular transaction not as his attorney, bub as a person 
 wholly independent of that character : for the reasons arising from 
 the danger of a breach of confidence, &c., do not apply to such 
 cases.{yY 
 
 The law on this subject has recently been laid down with great 
 force *and perspicuity by Lord Brougham in his judgment in 
 the case of Hunter v. Atkins,(z) " A client," said his lord- •- J 
 ship, " may naturally entertain a kindly feeling towards an attorney 
 or solicitor, by whose assistance he has long benefited ; and he may 
 fairly and wisely desire to benefit him by a gift, or, without such an 
 intention being the predominant motive, he may wish to give him the 
 advantage of a sale or a lease. No law can ever forbid such a trans- 
 action, provided the client be of mature age and a sound mind, and 
 there be nothing to show that deception was practised, or that the 
 attorney or solicitor availed himself of his situation to withhold any 
 knowledge, or to exercise any influence hurtful to others and advan- 
 tageous to himself. In a word standing in the relation, in which he 
 stands to the other party, the proof lies upon him (whereas in the 
 case of a stranger it would lie upon those who opposed him) to show, 
 that he has placed himself in the position of a stranger, that he has 
 cut ofi", as it were, the connexion, which bound him to the party giv- 
 ing or contracting, and that nothing has happened, which might not 
 have happened, had no such connexion subsisted. The authorities 
 
 (u) Oldham v. Hand, 2 Ves. 259; ley v. Norris, 8 W. 314; Dobbins t). 
 
 Halli), Hallett, 1 Cox, 134; Wood v. Stevens, 17 S. & R. 13.] 
 Downes, 18 Ves. 120. [See Leisenring (i) Wood v. Downes, 18 Ves. 127. 
 V. Black, 5 W. 303 ; Hockenbury v. (s/) Bellow v. Russell, 1 B. & Beat. 
 
 Carlisle, 5 W. & S. 350. This does not 104; Montesquieu v. Sandys, 18 Ves. 
 
 apply to the aUorney for the defendant 302; Edwards v. Meyrick, 2 Hare, 60. 
 buying at a sheriff's sale; Bank v. For- (z) Hunter v. Atkins, 3 M. &K. 135, 
 
 ster, 8 W. 305; nor to one merely in- 6. [See the remarks in Slump t>. Gaby, 
 
 cidentally consulted in a cause; Devin- 22 L. J. Ch. 354.] 
 
 ' The rule appjie.s, however, to the managing clerk in a solicitor's office, who 
 has in that capacity acquired the confidence of the client, and who deals with 
 him in a matter with which be became acquainted as clerk ; Poillon v. Martin, 
 1 Sandf. Ch. 569 ; and to one also who acts as confidential adviser before a ma- 
 gistrate where attorneys do not appear. Buffalow v. Buffalow, 2 Dev. & Batt. 
 Eq. 241. In Stockton v. Ford, 11 How. U. S. 232, it was held that the attorney 
 for the plaintiff on the recovery of a judgment which was a lien on land, could 
 not buy it in, on sale thereof on execution (in Louisiana) against his client. 
 
 15 
 
226 TRUSTEES BY CONSTBU CTIVB TRUST. 
 
 • 
 
 mean nothing else than this, when they say, as in Gihson v. Jeyes, 
 that attorney and client, trustee and cestui que trust, may deal, but 
 that it must be at arm's length, the parties putting themselves in the 
 , situation of purchasers and vendors, and performing all the duties of 
 those characters. Or when they say, as in Wright v. Proud, that an 
 attorney shall not take a gift from his client, while the relation sub- 
 sists, though the transaction may be not only free from fraud, but the 
 most moral in its nature : a dictum reduced in Hatch v. Hatch to 
 this, that it is almost impossible for a gift from client to attorney to 
 stand, because the difiSculty is extreme of showing, that everything 
 was voluntary and fair, and with full warning and perfect knowledge ; 
 for in Harris v. Tremenhere the court only held, that in such case a 
 suspicion attaches on the transaction, and calls for minute examina- 
 tion."{z) 
 
 The doctrine is the same with regard to gifts or sales by a prin- 
 cipal to his steward or agent. (a) 
 
 On this subject the law was thus stated by Sir John Leach, V. C, 
 jn the case of Lord Selsey v. Rhoades,(6) " There is no rule of 
 policy, which prevents a steward from being a lessee under his em- 
 ployer. There is no rule of policy, which prevents a steward from 
 receiving from the bounty of his employer a beneficial lease. But 
 where the transaction proceeds not upon motives of bounty, but upon 
 contract, there the steward is bound to make out, that he gives the 
 full consideration, which it would have been his duty as steward to 
 obtain from a stranger ; and where the transaction is mixed with mo- 
 tives of bounty, there the steward is bound to make out, that the 
 employer was fully informed of every circumstance respecting the pro- 
 perty, which either was within the knowledge of the steward, or ought 
 to have been within his knowledge, which could tend to demonstrate 
 the value of the property, and the precise measure and extent of the 
 bounty of the employer. These doctrines may be ^considered 
 L -I as comprised in the general maxim, that a steward dealing 
 with his employer shall derive no advantage from his situation as 
 steward. The employer may if he pleases treat with his steward pre- 
 ferably to any other person ; and this preference is a bounty. But the 
 steward cannot take advantage of this preference, unless he fully im- 
 parts to his employer all the circumstances of existing competition." 
 
 Besides the known and defined relations, which we have already 
 
 (2) Hunteii). Atkins, 3 M. &K. 135, 6. Earl of Winchelsea v. Garrety, 1 M. & 
 
 (a) Huguenin d. Basely, 14 Ves. K. 253 ; Ker t). Lord Dungannon, 1 Dr. 
 
 273; Harris D. Tremenhere, 15 Ves. & W. 509, 541. 
 
 40 ; Molony v. Kernan, 2 Dr. & W. 3 1 ; (i) Lord Selsey v. Rhoades, 2 S. & S. 
 
 Lord Selsey v. Rhoades, 2 S. & St. 41 ; 49, 50 : S. C. 1 Bligh. 1. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 227 
 
 considered of parent and child, guardian and ward, trustee and cestui 
 que trust, attorney and client, and principal and agent ; there may- 
 he a relation between parties created by friendly habits, or habitual 
 reliance on advice and assistance, accompanied with partial employ- 
 ment in doing some sort of husiness.(c) 
 
 In this case the court will take care that no undue advantage shall 
 be taken of the influence thus acquired \{6I) and in the language of 
 Sir S. Romilly as adopted by Lord Cottenham in the recent case of 
 Dent V. Bennett,(e) " this relief stands upon a general principle, 
 applying to all the variety of relations, in which dominion may be 
 exercised by one person over another." 
 
 It has been observed by Lord Brougham, that the limits of natural 
 and often unavoidable kindness with its efi"ect8, and of undue influence 
 exercised, or unfair advantage taken, cannot be rigorously defined. 
 And that it is not perhaps advisable that any strict rule should be 
 laid down, or any precise line drawn, by stating, that certain acts 
 should be the only tests of undue influence, or that certain things 
 should be required in order to rebut the presumption of it. The 
 circumstances of each case must be carefully examined and weighed, 
 and on the result of the inqiliry we are to say, has or has not an 
 undue influence beien exerted, an undue advantage taken. (/) 
 
 Therefore a gift or sale to a confidential friend or adviser ;(^) or 
 from a patient to his medical attendant ; (A) will not be set aside 
 merely on the ground of the relation existing between the parties ; 
 even though it be proved that the donor was very old and infirm, and 
 that the donee had acquired considerable infiuence over him. 
 
 If however there is proof of concealment, misrepresentation, or 
 contrivance in procuring the bargin or gift ; or the circumstances 
 and capacity of the donor, or the terms of the transaction itself, are 
 such as to create a presumption of the existence of fraud, the court 
 in such cases will undoubtedly interpose, and has frequently inter- 
 posed, to give relief. (?) 
 
 It is to be observed, that interests obtained through the medium of 
 the fraudulent conduct of third persons will be set aside by a court 
 of equity, though the party on whom the benefit is actually conferred, 
 be innocent of the frand. " Let the hand receiving the gift be ever 
 so chaste," said Lord Chief Justice Wilmot, "yet if it comes through 
 
 (c) Per Lord Brougham in Hunter v. (§■) Hunter v. Atkins. 3 M. & K. 113. 
 
 Atkins, 3 M. & K. 140. [Greenfield's (A) Piatt v. Barker, I'Sim. 1 ; S. C. 4 
 
 Est. 2 Harris, 489. See ante 161. n. z.] Russ. 507. See ante 158, note 1. 
 
 {d) Ibid. (i) Huguenin v. Baseley, 14 Ves. 
 
 (e)'4 M. &.Cr. 277. [Greenfield's 273; Popham v. Brooke, 5 Russ. 8; 
 
 Estate, 2 Harris (Penn.),492: Cookei). Griffiths v. Robins, 3 Mad. 191 ; Dent 
 
 Lamotte, 11 Engl. L. & Eq. 26.] v. Bennett, 7 Sim. 539; S. C. 4 M. & Cr. 
 
 (/) HunterD'.Atkins,3M.&K.140,l. 269; Gibson v. Russell, 2 N. C. C. 104. 
 
228 TRDSTBES BY -CONSTRUCTIVE TRUST. 
 
 r*1fi^1 ^ poll'it^d channel, *the obligation of re 
 L -' it."(k) This doctrine however will of 
 
 restitution will follow 
 '(k) This doctrine however will of course not prevail 
 against persons standing in the situation of bona fide purchasers for 
 valuable consideration without any notice of the fraudulent act. 
 
 The fourth and last head of fraud, distinguished by Lord Hardwicke, 
 is that, which may be collected from the circumstances of the trans- 
 action, as being fraudulent, upon other persons not parties to the 
 agreement. (Z) 
 
 A fraudulent conveyance, made with the view of defeating the 
 claims of creditors, is altogether void by the statute 13 Eliz. ; such 
 a deed therefore can confer no legal interest, on which a trust can 
 be fastened by a court of equity. 
 
 But where a composition, or arrangement, is effected by a debtor 
 with his creditors ; and one of them, who has agreed to that arange- 
 ment, secretly obtains from the debtor a conveyance of property, or 
 some other additional benefit for himself; that will be a fraud upon 
 the other creditors, which a court of equity will not suffer to take 
 effect.(«i) It seems indeed that such a transaction could not be sus- 
 tained even at law.(w) 
 
 Upon the same principle a conveyance by a woman, on the point 
 of marriage, of her estate to a stranger, if made> without the know- 
 ledge of the husband, is a fraud upon him, and the person taking 
 under such an instrument will hold in equity subject to the rights 
 which the husband would have had, if no such deed had been 
 made.(o) Although it will be otherwise if such a conveyance be made 
 for a valuable,(p) or even a good consideration ;{q) or with the con- 
 currence or knowledge of the intended husband ;(r) and the proof, 
 that the transaction amounts to a fraud on his marital rights, lies 
 
 (k) Bridgman d. Green, 2 Ves. 627, Andrews, 13 Maine, 124; Waller v. 
 
 and Wilm. 58, 64; Luttrell r. Olmins, Armislead, 2 Leigh, 11; Manes «. Du- 
 
 cited 11 Ves. 638, and 14 Ves. 290; rant, 2 Rich. Eq. 404; and note to 
 
 Huguenin v. Baseley, 14 Ves. 289. Strathmore v. Bowes, 1 Lead. Cases, Eq. 
 
 (/) Vide supra. 317, (1st Am. Ed.) ] 
 
 (m) Chesterfield v. Jansen, 2 Ves. {p) Blanchet v. Forster, 2 Ves. 264. 
 
 156; ex parte Saddler and Jackson, 15 (g) De Maneville d. Crorapton, 1 V. 
 
 Ves. 52. [See 15 Penn. St. R. 310.] & B. 354 ; England v. Downes, 2 Beav. 
 
 (n) Leicester v. Rose, 4 East, 372; 522. [See Tucker v. Andrews, 13 
 
 Stock V. Mawson, 1 Bos. & P. 286. Maine, 128; but contra, Manes v. Du- 
 
 (o) Hunt V. Mathews, 1 Vern.,408; rant, 2 Rich. Eq. 404; Terry v. Hop- 
 
 Strathmore 1). Bowes, 2.Bro. C. C. 345; kins, 1 Hill, Eq. 1.] 
 
 S. C. 2 Cox, 28, and 1 Ves. jun. 22; (r) St. George v. Wake, 1 M. & K. 
 
 Ball V. Montgomery, 2 Ves. jun. 191; 610. [McClure v. Miller, 1 Bail. Eq. 
 
 Goddard'U. Snow, 1 Russ. 485; England 108; though under age, Kottman «. 
 
 V. Downes, 2 Beav. 522. [Logan v. Peyton, 1 Speer's Eq. 46.] 
 
 Simmons, 3 Ired. Eq. 487; Tuckeri;. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 229 
 
 upon the husband, or other person claiming in opposition to the 
 deed.(s) 
 
 Upon the same ground equity -ffill not suffer a bond or other pre- 
 mium or benefit given for procuring a marriage ;(<) or a public oflSce 
 or situation ;(w) or for any other purpose, -which is forbidden either 
 by express law, or as being contrary to public policy, to be enforced 
 by the party, to ■whom it is given ; for such transactions are frauds 
 upon the rights of other persons, either as individuals, or as mem- 
 bers of society generally.(a;) 
 
 "And -where the transaction is against public policy, this 
 
 equity may be enforced by the party himself, who has created 
 
 [*164] 
 
 the interest, although he be in pari delicto -with the defendant : 
 but relief will only be given in these cases upon the terms of return- 
 ing any consideration, that may have been received. (?/) 
 
 In most of the cases indeed of this last description the instruments 
 will be equally void at law as in equity, and they therefore cannot 
 have the effect of creating a trust properly so called; except where 
 some benefit may have been already received under them, in which 
 case the court will usually fasten a trust on the conscience of the 
 party in respect of such past receipts, and direct an account and 
 repayment. (3) 
 
 In like manner where there is a devise, or conveyance, to trustees 
 upon a secret understanding, that the property is to be applied by 
 them to purposes, which the law expressly forbids, or will not allow 
 to take effect ; that is a fraud upon the legislature, as well as upon 
 the rights of the parties, who would become entitled upon the failure 
 of the illegal gift. Therefore where a bill is filed by the heir-at-law 
 against the devisees, alleging the existence of such a trust, it has 
 been repeatedly decided, that the defendants are bound to answer 
 the bill notwithstanding the Statute of Frauds.(a) And if the trust 
 
 (s) St. George v. Wake, 1 M. & K. Franco v. Bolton, 3 Ves. 370 ; Gray v. 
 
 210 ; England v. Downes, 2 Beav. 522. Mathias, 5 Ves. 286 ; 1 Fonbl. Eq. B. 
 
 (0 Drury v. Hook, 1 Vern. 412; 1, ch. 4, s. 4; 1 Mad. Ch. Pr. 377; 
 
 Smith V. Brnning, 2 Vern. 392 ; Ro- Story, Eq. Jur. i 260, &o. 
 
 bertsv. Roberts, 3 P. Wms. 76; Smyth (1/) St. John v. St. John, 11 Ves. 
 
 u. Aykwell, 3 Atk. 566; Cole v. Gib- 535,6. 
 
 son, 1 Ves. 507; Williamson v. Gihon, {z) Smith v. Bruning, 2 Vern. 392 ; 
 
 2 Sch. & Lef. 357; Debenham v. Ox, Morris v. M'Cullooh, Ambl. 432. 
 
 1 Ves. 277. (a) Muckleston v. Brown, 6 Ves. 52, 
 
 (u) Whitinghara v. Burgoyne, 3 Anst. 67; Strickland v. Aldridge, 9 Ves. 516 ; 
 
 900; Morris v. M'Culloch, Ambl. 432, see Chamberlain v. Agar, 2 V. & B. 
 
 and 2 Ed. 190; see Hanington «. Du 259; Podmore ^. Gunning, 7 Sim. 644; 
 
 Chatel, 1 Bro. C. C. 124 ; Hartwell v. Edwards v. Pike, 1 Ed. 267. [Robin- 
 
 Hartwell, 4 Ves. 811, 15. son v. King, 6 Geo. 550.] 
 (z) Robinson v. Gee, 1 Ves. 251 ; 
 
230 
 
 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 be admitted by the ansver,{b) or otherwise suflSciently proved,(c) the 
 devisees will be decreed to be trustees for the heir-at-law. But the 
 plaintiffs in such a case must clearly establish their title to the relief 
 prayed, or otherwise the bill will be dismissed. (ci) However in the 
 case of positive fraud, parol evidence is admissible even against the 
 answer of the defendant.(e) 
 
 The last class of constructive trusts of this description, is that of 
 purchases from a trustee made with notice of the trust. It may be 
 laid down as a general rule, that a purchaser from a trustee with 
 notice though for valuable consideration, and a fortiori, a volunteer 
 taking with notice, is in equity bound by the trust to the same ex- 
 tent, and in the same manner, as the person, from whom he pur- 
 chased.(/)' And this will be the case equally, whether it be an ex- 
 press trust, (as in the case of a conveyance from a trustee of a term 
 or of a settlement,(^) ) or a constructive trust, (such as one arising 
 from an agreement or contract respecting the estate.(A) ) And a fine 
 levied by a purchaser with notice will not strengthen his title, or bar 
 the cestui que trust, any more than a simple conveyance. (i) 
 r*1fi'i1 *Notice of the trust to a purchaser before actual payment 
 L -I of the money, although it be secured, and the conveyance 
 
 (b) Cottingham v. Fletcher, 2 Atk. Ves. 498 ; Taylor v. Stibbert, 2 Ves. 
 155; Bozon v. Statham, 1 Ed. 508; jun. 437; Crofton ■«. Ormsby, 2 Sch. & 
 Bishop V. Talbot, cited 6 Ves. 60. Lef. 583, 2 Sugd. V. & P. 269; Adair v. 
 
 (c) Edwards v. Pike, 1 Ed. 267 ; see Shaw, 1 Sch. & Lef. 262. [See Pooley 
 Podmore v. Gunning, 7 Sim. 665. v. Budd, 14 Beav. 34.] 
 
 {d) Adlington v. Cann, 3 Atk. 141; (g) Mansell ij. Mansell, 2 P. Wms. 
 
 Paine v. Hall, 18 Ves. 473 ; see 1 Ed. 681 ; Sanders v. Dehew, 2 Vern. 271; 
 
 515, n.(a) Pye v. Gorge, 1 P. Wms. 128. 
 
 (e) Pringi). Pring, 2Vern.99;Strick- (h) Earl Brook v. Bulkley, 2 Ves. 
 
 land V. Aldridge, 9 Ves. 520. [How 498 ; Molony v. Kernan, 2 Dr. & W. 
 
 v: Camp, Walk. Ch. 427 .] 31. 
 
 (/) Mead v. Ld. Orrery, 3 Atk. 238 ; (i) iJennedy v. Daly, 1 Sch. and Lef. 
 
 Winged V. Lefebury, 1 Eq. Cas. Abr. 379; seeBoneyu. Smith, 1 Vern. 145. 
 32, pi. 43;, Earl Brook v. Bulkley, 2 
 
 ' Wormley v. Wormley, 8 Wheat. 421 ; Oliver v. Piatt, 3 How. U. S. 333 ; Clarke 
 V. Haokethorne, 3 Yeates, 269; Peebles u. Reading, 8 S. & R. 495; Reade v. 
 Dickey, 2 Watts, 459 ; Hood v. Fahnestock, 1 Barr, 470 ; Wilkins v. Anderson, 
 1 Jones (Penn'a), 339; Murray v. Ballou, 1 John. C. R. 566; Den v. McKnight, 
 6 Halstead, 385; Pugh's heirs v. Bell's heirs, 1 J.J. Marsh. 403; Massay v. 
 Mcllwaine,' 2 Hill, Eq. 426 ; Truesdell v. Callaway, 6 Mis. 605 ; Suydara v. 
 .Martin, Wright (Ohio), 384; Benzien v. Lenoir, 1 Car. L. R. 504; Ligget. v. 
 Wall, 2 A. K. Marsh. 149 ; notes to LeNeve v. Le Neve, 2 Lead. Cases, Eq. p. 1: 
 p. 163; and post 510; Caldwell v. Carrington, 9 Peters, 86; Bailey v. Wilson, 
 1 Dev. & Batt. Eq. 182; Wright v. Dame, 22 Pick. 55. The identity of a sum 
 of money or debt affected by a trust, does not consist in the pieces of coin, but 
 in the fund, which may be followed so long as its identity can be traced. U. S. 
 V. Inhabitants of Waterborough, Daveis, 154 ; See Goepp's App. 15 Penn. St. K. 
 428. 
 
TRUSTEES BT CONSTRUCTIVE TRUST. 231 
 
 actually executed •,{k) or before the execution of the conveyance, not- 
 withstanding that the money be paid, {t) is equivalent to notice before 
 the contract.(m)^ 
 
 However although a person may have notice of a trust affecting a 
 property, if the person, from whom he purchases it, bought bona fide, 
 and for valuable consideration, the notice to the second purchaser 
 will not make him a trustee '.{nf although this circumstance may in- 
 fluence the court with respect to costs. (o) But if the second pur- 
 chaser,^ in such a case, be the original trustee, who reacquires the 
 estate, he will be fixed with the trust. (p) 
 
 (ft) Tourville v. Naish, 3 P. Wras. Bradling v. Ord, 1 Atk. 571; Lowther 
 
 307; Story u. Ld. Windsor, 2 Atk. 630; v. Charleton, 2 Atk. 242; Sweet v. 
 
 More V. Mayhew, 1 Ch. Ca. 34; Jones Southcote, 2 Bro. C. C. 66. 
 
 V. Stanley, 2 Eq. Ca. Abr. 685, pi. 9. (o) Andrew v. Wrigley, 4 Bro. C. C 
 
 (?) Wigg V. Wigg, 1 Atk. 384. 125 ; 2 Sugd. V. & P. 274. 
 
 (m) 2 Sugd. V. & P. 274. (p) Bovey v. Smith, 1 Vern. 149 ; 1 
 
 (n) Harrison v. Forth, Preo. Ch. 51; Cruis. Dig. Tit. 12, ch. 4, s. 14. 
 
 ' The decisions in the United States as to the period before which notice must 
 have been received in order to affect a purchaser, though not uniform, are in 
 general in accordance with the English rule as stated in the text. Wilcox «. Calla- 
 way, 1 Wash. Va. 38 ; Snelgrove v. Snelgrove, 4 Desaus. 274 ; Moore v. Clay, 7 
 Alab. 142; Blair i). Owles, 1 Munf. 40; Sims v. Richardson, 2 Litt. 229; Wil- 
 liams V. HoUingsworth, 1 Strob. Eq. 103; Bush v. Bush, 3 Strob. Eq. 131 ; Alex- 
 ander V. Pendleton, 8 Cranch, 462; Wormley v. W^ormley, 8 Wheat. 421 ; Boone 
 V. Chiles, 10 Pet. 77 ; Halstead v. Bank of Kentucky, 4 J. J. Marsh. 554 ; Pillow's 
 heir's v. Shannon's heirs, 3 Yerg. 308; notes to Bassett v. Nosworthy, 2 Lead. Ca. 
 Eq, p. 2, page 95, &c. (1st. ed.). But in Youst v. Martin, 3 S. & R. 430; Boggs v. 
 Warner, 6 W. & S. 469; Juvenal «. Jackson, 14 Penna. St. R. 519: and in Dos- 
 well V. Buchanan, 3 Leigh, 365 (by a majority of the court) ; it was held that a 
 purchaser would be protected by a payment of the purchase-money, though 
 before conveyance executed. And so again in Pennsylvania, contrary to the doc- 
 trine of the English cases, payment of a part of the money will be a pro- 
 lection yro tanto..Y^s\^y^M^\^ub supra; Bellas u. McCarty, 10 Walts, 13; Juve- 
 
 nal V. Patterson,^/ Penna. St.^^p. 519; "accord. Flagg v. Mann, 2 Sumn. 486; 
 Frost V. Beekmaif, 1 J. C. R. 288. Actual payment, i§, moreover, usually de- 
 cided to be necessary, Murray v. Ballou, I John. C. R. 566 ; Jackson v. Caswell, 
 1 Cow. 622; Christie v. Bishop, 1 Barb. Ch. 105; McBee v. Loftis, 1 Strobh. Eq. 
 90. But the notes of third persons,(Jewett v. Palmer, 7 Cow. 65); or those of 
 the vendee if actually negotiated, (Frost ■«. Beekman, 1 J. C. R. 288 ; Freeman 
 V. Deming, 3 Sandf. Ch. 327,) are equivalent to payment for this purpose. In 
 Pennsylvania valuable improvements before notice; (Boggs u. Warner, 6 W. & S. 
 469 ; or payment of part, the rest secured to be paid on a contingency (Bellas 
 V. McCarthy, 10 Watts, 131), have been held sufficient. This subject is very 
 fully and ably discussed in the American notes to Bassett v. Nosworthy, 2 Lead. 
 Cas. Eq. p. ii. [20], and to Le Neve v. Le Neve, 2 Lead. Cas. Eq. p. ii. [32]. 
 
 " Lacy V. Wilson, 4 Munf. 313 ; Truluck v. Peoples, 3 Kelly (Geo.), 446 ; 
 Bracken v. Miller, 4 W. & S. 102; Fletcher v. Peck, 6 Cranch, 36; Boone v. 
 Chiles, 10 Pet. 177; Boynton v. Reese, 8 Pick. 29; Griffith v. Griffith, 9 Paige, 
 315; Mott V. Clark, 9 Barr, 399; 2 Lead. Cas. Eq. part ii., page 83 (1st. Am. 
 Ed.) ; but see Schutt v. Large, 6 Barb. S. C. 373. 
 
232 
 
 TRUSTEES BY CONSXEUCTIYE TEUST, 
 
 The notice in these cases may be either to the purchaser himself 
 or to his counsel, attorney, or agent ;{qy though the counsel, attor- 
 ney, or agent be himself the vendor,(r) or be concerned for both ven- 
 dor and purchaser.(s) But the notice to the agent must as a general 
 rule be in the course of the same transaction ;(i) and it seems that 
 that will also be the rule even with regard to notice to the principal 
 himself.(M) Although this rule will not hold good in every case, for 
 if the two transactions follow close upon each other, notice in one 
 will be held to operate as notice in the other.(a;) 
 
 The notice also may be either actual or constructive. Actual no- 
 tice requires no definition : in that case knowledge of the existence 
 of the trust is brought positively home to the purchaser. Construc- 
 tive notice is in its nature no more than evidence of actual notice; 
 but it is difiicult as a general rule to lay down, what will constitute 
 constructive notice: each case must depend on its own circum- 
 stances.(y) This however is a subject^ which it will be necessary to 
 consider more at large hereafter.^ 
 
 It is upon this principle that a purchase from an executor or admi- 
 nistrator of his testator's estate will not be suiFered to prevail against 
 the beneficial title of the creditors or particular legatees(l) or next of 
 
 (5) Brotherton v. Hatt, 2 Vern. 574; Baillie, 2 Ves. 368; Mountford v. Scott, 
 
 Newstead v. Searles, 1 Atk. 265; Le 3 Mad. 34. [Brackeii «. Miller, 4 W. 
 
 Neve V. Le Neve, 3 Atk. 646, and 1 & S. Ill; Henry v. Morgan, 2 Binn. 
 
 Ves. 64 ; Ashley v. Bailley, 2 Ves. 368 ; 497.] 
 
 Maddox v. Maddox, 1 Ves. 61 ; Tun- (u) Hamilton v. Royse, 2 Sch. & Lef. 
 
 stall 1). Trappes, 3 Sim. 301 ; 2 Sugd. V. 327; 2 Sugd. V. & P. ' 277, 9lh ed. 
 
 & P. 278. [Boggs V. Varner, 6 W. & S. 469.] 
 
 (r) Sheldon v. Cox, Ambl. 624; Dry- {x) Mountford v. Scott, T. & R. 280; 
 
 den V. Frost, 3 M. & Cr. 670. Hargreaves v. Rothwell, 1 Keen, 154; 
 
 (s) Le Neve v. Le Neve, 3 Atk. 646 ; Perkins v. Bradley, 1 Hare, 230. 
 Kennedy v. Green, 3 M. &K. 699; Dry- (_y) Hine v. Dodd, 2 Atk. 275; Tol- 
 
 dea.v. Frost, 3 M. & Cr. 670. [Sergeant land v. Stainbridge, 3 Ves. 478; Eyre v 
 
 V. IngersoU, 15 Penna. St. R. 350.] Dolphin, 2 Ball. & B. 301; 2 Fonbl. Eq. 
 
 (<) Preston v. Tubbin, 1 Vern. 286; B. 3, Ch.3, s. 1, n. (6); 2 Sug. V. &Pd. 
 
 Warwick v. Warwick, 3 Atk. 291; 276; Pearce v. Newlyn, 3 Mad. 186. 
 
 Worsley v. Earl of Scarborough, id. [Post, page 510, and see the notes to 
 
 392; Hine v. Dodd, 2 Atk. 275; Low- Le Neve v. Le Neve, 2 Lead. Cas. Eq. 
 
 ther V. Carleton, id. 242; Ashley v. (p. ii. 12.] 
 
 (1) A distinction appears to have been established in this respect between for- 
 ticular and residuary legatees; for it has been said, that residuary or general lega- 
 tees are never permitted to question the disposition, vphich the executors have 
 
 ' Astor V. Wells, 4 Wheat. 466; Westervelt v. Huff, 2 Sandf. Ch. 98 ; Blair v. 
 Owles, 1 Munf. 40; Jackson v. Leek, 19 Wend. 339; Bracken v. Miller, 4 W. 
 & S. 108. But notice to a husband is not notice to his wife. Snyder ». Sponable, 
 1 Hill, 567 ; affirmed, 7 Hill, 427. 
 
 ' As to the efTeot of the recording acts in the various States upon the doctrines 
 as to notice, see post, 510. 
 
TBUSTEES BY CONSTRUCTIVE TRUST. 233 
 
 kin, if *the purchaser bought with notice or knowledge that p^-.p^-, 
 the transaction amounted to a devastavit or misapplication "- J 
 of the assets.(3) However the power of the executor or adminis- 
 trator over the estate is extremely ample both at law and in equity; 
 and necessarily so, in order to the due discharge of their duties ; and 
 the court will require a very strong case to be established, before it 
 will interfere to question a disposition of the assets by a person 
 filling either of those situations, (a)^ 
 
 (2) 1 Mad. Ch. Pr. 379; Story Eq. son v. Maire, 4 id. 270; and 2 Ves. jun. 
 
 Jur. H22. 95; Scott«.Tyler, 2 Dick.725; Bonney 
 
 (a) Ibid; Crane v. Drake, 2 Vern. v. Ridgard, 1 Cox, 143; Dickson v. 
 
 616; Ewer v. Corbe^ 2 P. Wms. 148 ; Lookyer, 4 Ves. 42, 3 ; Doran v. Simp- 
 
 Newland v. Champion, 1 Ves. 105; son, id. 665; Hill v. Simpson, 7 Ves. 
 
 Jacomb «. Harwood, 2 Ves. 268; Elms- 152; M'Leod «. Drummond, 14 Ves. 
 
 lie V. M'Aulay, 3 Bro. C. C. 626; Utter- 353, and 17 Ves. 172. 
 
 made of the assets. Mead v. Ld. Orrerj', 3 Atk. 235; McLepd v. Drummond, 
 14 Ves. 361. Although this distinction was doubted by Lord Eldon in the same 
 case of MdLeod v. Drummond, when it came before him on appeal, 17 Ves. 
 169, 170 ; and see 1 Mad. Ch. Pr. 382. [See Saxon v. Barksdale, 4 De.saus. 526. 
 The distinction between creditors and residuary legatees in this respect was as- 
 serted in McNair's App., 4 Rawle, 155, but denied in Johnson v. Johnson, 2 
 Hill, Eq. 277.] 
 
 ' In general, a purchaser of personal estate from an executor or administra- 
 tor, in good faith, and having no knowledge of any intended breach of trust, 
 is not responsible for a misapplication of the proceeds, Field v. SchiefTelin, 7 
 J. C. R. 155; Hertell v. Bogert, 9 Paige, 57; Tyrrell i^.^Morris, 1 Dev. & BaU. 
 Eq. 559; Rayner v: Pearsall, 3 J. C. R. 578; Bond v. Zeigler, 1 Kelly, 324; 
 see Mills v. Durnford, 13 Eng. L. & Eq. 120; though where an administrator is 
 required to sell at public sale, it has been held that a private sale passes no 
 title. Fambro v. Gantt, 12Alab. 305; Barnes ij. McGee, 1 Sm. & M. 208; Saxon 
 V. Barksdale, 4 Desaus. 526 ; but see Bond v. Zeigler, 1 Kelly, 324. Where, 
 however, the purchaser has notice that the transaction amounts to a devastavit, 
 he is liable to legatees or distributees, and the property may be pursued. ' Field 
 V. Schieffelin, ut sup.; Colt v. Lesnier, 9 Cow. 320 ; Williams v. Branch Bank, 7 
 Alab. 906: Parker v. Gilliam, 10 Yerg. 394; Garnett v. Macon, 6 Call. 361; 
 Petrie v. Clark, 11 S. & R. 388; Dodson v. Simpson, 2 Rand. 294 :' Graff v. Cas- 
 tleton, 3 Rand, 204, &o.; Lowry «. Farmer's Bank, 10 P. L. J. (3 Am. L.J. n. s.) 1 11, 
 per Taney, C. J. ; Williamson «. Morton, 2 John. Maryl. Ch. Dec. 94. In this last 
 case the distinction is said to be that at law actual collusion is necessary to 
 make a purchaser liable, while equity will consider the whole transaction. 
 Therefore, where the transfer is by way of pledge for or in extinguishment of 
 a private debt of the executor, this is sufficient notice. Petrie v. Clark ; Dod- 
 son V. Simpson ; Field v. Schieffelin ; Williams v. Branch Bank ; Williamson v. 
 Morton, vt supr. But in Tyrrel t). Morris, 1 Dev. & Bat. Eq. 559, a pledge for 
 a contemporaneous advance to one in good faith was held to be within the gene- 
 ral rule ; and see Petrie v. Clarke, ut supr. And where the original advance of the 
 money was made to the executor for the benefit of the estate, and on a representa- 
 tion that it was needed therefor, and the executor subsequently on being pressed for 
 
234 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 We have seen, that in some cases, such as in transactions with an 
 expectant heir, or between guardian and ward, trustee and cestui 
 que trust, or solicitor and client, the relation between the parties is 
 of itself sufficient to raise a presumptioii against the propriety of 
 the transaction, so as to throw upon the parties, who endeavor to 
 support it, the burden of establishing its validity.(5) 
 
 In other cases, however, where no such presumption exists, those 
 who seek to displace the claim of the persons, in whom the legal title 
 is vested, on the score of fraud, must establish by sufficient evidence, 
 the facts on which they rest their title to relief. 
 
 With regard to the mode of proving the fraud, it was laid down by 
 Lord Hardwicke, " that the court has adhered to this principle, 'that 
 the Statute of Frauds should never be understood to protect fraud ; 
 and therefore wherever a case is infected__with fraud, the court will not 
 suffer the statute to protect it, so as that any one should run away 
 with a benefit not intended.' "(c) 
 
 Therefore wherever a case of fraud is made by the bill, parol 
 evidence will be admitted for the purpose of establishing tkat case ; 
 even though the effect of such evidence be to alter or vary a written 
 instrument, and although the benefit of the statute be insisted upon 
 by the defendant.(d)' For as was said by Lord Thurlow, "The 
 moment you impeach a deed, for fraud, you must either deny the 
 effect of fraud on a deed, or you cannot but be under the necessity 
 
 (6) Davis V. D. of Marlborough, 2 Thyii «. Thyn, iVem. 296; Oldham «. 
 
 Svv. 141; Hunter v. Atkins, 3 M. & K. Lichford, 2 Vern. 506; Drak'eford v. 
 
 135, vide supra. Wilks, 3 Atk. 539; Reach v. Kenne- 
 
 (c) In Seech v. Kennegate, 1 Ves. gate, 1 Ves. 125, and Ambl. 67; Irnhara 
 
 125 ; and see Hutchins v. Lee, 1 Atk. v. Child, 1 Bro. C. C. 93;CrippsD.Jee,4 
 
 448 ; Montacute v. Maxwell, 1 P. Wms. Bro. C. C. 475; Filraer v. Gott,' 7 Bro. 
 
 620; Walker v. Walker, 2 Atk. 98; P. C. 70; Pember v. Mathers, 1 Bro. 
 
 Young V. Peachy, 2 Atk. 258. C. C. 52 ; Wilkinson v. Bradfield, 2 
 
 {d) Sellack v. Harris, 5 Vin. Ab. 52 1 ; Vern. 307 ; Young v. Peachy, 2 Atk. 257. 
 
 payment, gave a mortgage of real estate over which he had a power of sale for 
 the payment of debts, it was held good, and the mortgagee not liable; though 
 the fact that the mortgage was given for a previous advance was said to be 
 worthy of attention. Miles v. Durnford, 13 Eng. L. & Eq. 120. See on this sub- 
 ject generally, 11 Jurist, part ii. 124. 
 
 This doctrine, however, being founded in the general power of an executor 
 over personal assets, does not apply to sales of real estate, in which case, the 
 purchaser must look to the will for the power to sell: Brush v. Ware, 15 Peters, 
 93; Brock v. Phillips, 2 Wash. Va. 87 [68] ; and see post, 372, and notes. 
 
 ' Miller v. Gotten, 5 Geo. 346; ElUott v. Cornell, 5 Sm. & M. 91; Watkinsu. 
 Storkett, 6 H. & J. 435 ; Christ v. Diffenbach, 1 S. & R. 464 ; notes to WooUam v. 
 Hearn, 2 Lead. Cas. Eq. p. ii., page 558, (1st. ed.) 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 235 
 
 of admitting parol evidence to prove it."(e) But in all these cases 
 the bill must contain allegations of fraud. (/) ^ 
 
 *And the same rule prevails, where relief is sought on the r*i gir-n 
 ground, that through mistake, surprise, or accident the instru- 
 ment is framed contrary to the intention of the parties. In such 
 cases parol evidence will be received to establish the plaintiff's title 
 to the relief prayed. " How," observed Lord Hardwicke in Baker 
 V. Paine, " can a mistake in an agreement be proved but by parol 
 evidence V\g){^Y 
 
 However, even in the case of fraud, parol evidence is not regarded 
 with favor, and the court will not act upon it, if it be not strong 
 irrefragable evidence ;(/i) or if it be contradicted or controverted by 
 other testimony, (i) 
 
 And where an important provision in a deed was omitted inten- 
 
 (e) InShelburneu.Inchinqum, 1 Bro. vington, 5 Ves. 593; Taylor v. Eadd, 5 
 
 C. C. 350; and see Hare v. Sherewood, Ves. 595, cited Jenkins v. Quinchant, 5 
 
 I Ves. jun. 243; Townsliend v. Stan- Ves. 596, n. ; Hankie v. Royal Assur- 
 
 groom, 6 Ves. 333; Pym v. Blackburn, ance Company, 1 Ves. 318; Marquis of 
 
 3 Ves. 38, n. (a), where the cases are Townshend v. Stangroom, 6 Ves. 328 ; 
 
 collected ; [Miller v. Gotten, 6 Geo. Rogers v. Earl, 1 Dick. 294. 
 
 346;] but see contra, Conolly v. Lord (A) Shelburne v. Inchinquin, 1 Bro. 
 
 Howe, 5 Ves. 701. C. C. 341; Marquis of Townshend v. 
 
 (/) Imhara v. Child, 1 Bro. C. C 94 ; Stangroom, 6 Ves. 334. [Millers. Gotten, 
 
 Putmore v. Morris, 2 Id. 219. 5 Geo. 346.] 
 
 (g-) Baker v. Paine, 1 Ves. 457 ; (i) Barrow v. Greenhough, 3 Ves. 
 
 Towers jj» Moor, 2 Vern. 98; Langley 154. [lb.] 
 V. Brown, 2 Atk. 203 ; Barstow v. Kil- 
 
 (1) But relief will be refused on the ground of mistake, where the case of the 
 plaintiff depends entirely on parol evidence, and is contradicted by the defendant's 
 answer. Mortimer v. Shortall, 2 Dr. & Vl^. 363. See Alexander v. Grosbie, LI. & 
 G. 145. [Where the answer denies the mistake, the proof must be of the 
 clearest and most conclusive kind. Lyman ■«. United Ins. Co., 2 J. C. R. 630 ; S. G. 
 17 John. R. 373; Watkins v. Slockett, 6 H. & J. 435; Preston v. Whitcomb, 17 
 Verm. 183; U. S. v. Monroe, 5 Mason, 572; Gray v. Woods, 4 Blaokf. 432.] 
 
 ' Gouverneur v. Elmendorff, 5 J. G. R. 79; Forsyth v. Clark, 3 Wend. 637; 
 Thompson v. Jackson, 3 Rand. 504; Booth v. Booth, 3 Litt. 457 ; Fitzpatrick v. 
 Bent, 1 Gilm. 454 ; Miller v. Gotten, 5 Geo. 346. But where the facts are stated 
 with directness and precision, and constitute fraud in themselves, an allegation of 
 fraud, totidem verbis is not necessary. Kennedy v. Kennedy, 2 Alab. 571 ; McCal- 
 mont V. Rankin, 8 Hare, 15. 
 
 '^ Hunt V. Rousmanier, 8 Wheat. 174 ; Keisselbrock v. Livingston, 4 J. C. R. 
 144; Harrison «. Howard, 1 Ired. Eq. 407; Perry v. Pearson, 1 Humph. 431: 
 Newson v. BufTalow, 1 Dev. Eq. 379; Peterson v. Grover, 20 Maine, 263; 
 Goodell V. Freed, 15 Verm. 448; Blanchard v. Moore, 4 J.J. Marsh. 471 ; Gower 
 V. Steiner, 2 Whart. 75. 
 
236 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 tionally by the parties,(A;)' whether through a mistake of the law ;(^ 
 or through carelessness or inattention at the time of executing the 
 deed;(m) and no fraud is charged, or proved against the defendant, 
 who denies by his answer the existence of any such provision, parol 
 evidence will not be admitted to add to or vary the instrument. 
 
 It has been decided also that where a deed is sought to be im- 
 peached on the ground of fraud in obtaining it, declarations by the 
 party, who executed the deed, subsequently to its execution and after 
 it became a subject of dispute, cannot be received to prove the 
 fraud, (n) 
 
 We have seen that a plaintiff is entitled to an answer to allega- 
 tions of fraud contained in the bill ;(o) and that if the case be 
 admitted by the answer, the court will act on that admission without 
 other proof.(p) And though those allegations are positively denied 
 by the answer, parol evidence will be admitted to prove them ; and 
 if the case be thus sufEciently established relief will be decreed, (j) 
 and it has been decided that the court will act upon the parol testi- 
 mony of a single witness unless the denial in the answer be positive, 
 and goes to the whole case made by the bill.(r) 
 
 It may be observed, that where fraud is set up as a defence against 
 a suit, brought for the purpose of enforcing the execution of a deed 
 or agreement ; parol evidence will in all cases be admitted in support 
 of the defendant's case.(s) 
 
 r*1 fiSn *-A.nd according to the universal rule of evidence, where 
 parol proofs are admitted on the one side to establish a case 
 
 {k) Leman w. Whitley, 4 Russ. 423. (o) Vide Supra 61, Muokleston v. 
 
 (0 IrnhamD. Child, 1 Bro.C. C. 92, Brown, 6 Ves. 67. [Stoval i;. North 
 
 Potmore v. Morris, 2 Bro. C. C. 219. Bank Mississippi, 5 Sm. & M. 17; Ross 
 
 [London Railway Co. v. Winter, 1 Cr. v. Vertner, 1 Freem. Ch. 587.] 
 
 & Ph. 57 ; Wheaton v. Wheaton, 9 (p) Conlington v. Fletcher, 2 Atk. 
 
 Conn. 96; Hunt v. Rousmanier, 1 Pet. S. 155, vide supra, 61. 
 
 C. 1; Lyon D. Richardson, 1 J. CR. 60; (g) See Podmore ii. Gunning, 7 Sim. 
 
 Greenwood ■!;.Eldridge,lGreen,Ch. 146.] 654; but see Mortimer v. Shortall, 2 
 
 (m) Rich V. Jackson, 4 Bro. C. C. Dr. & W. 363. 
 
 614, and 6 Ves. 334, n.; Anon. Skin. (>•) Reech v. Kennegate, 1 Ves. 125. 
 
 159, and 1 Sugd. V. & P. 167, 8; Hare (s) Jerques v. Statham, 3 Atk. 388; 
 
 V. Shearwood, 1 Ves. jun. 241 ; Jackson Woolam v. Heame, 7 Ves. 211; Mar- 
 
 V. Cator, 5 Ves. 688. quis of Townshend v. Stangrooni, 6 
 
 (n) Conolly v. Lord Howe, 5 Ves. Ves. 328; 1 Sugd.V. &P. 137. 
 700. [Bradley v. Chase, 22 Maine, 511.] 
 
 ' Robeson v. Harwell, 6 Georgia, 589; Parkhurstt). Van Cortland, 1 J.C.R.282; 
 Mqvan v. Hays, Id. 339 ; Chauncey v. Crutchfield, 2 L-ed. Eq. 148 ; Westbrook 
 V. Harbeson, 2 McCord, Ch. 112 ; Dwight v. Pomeroy, 17 Mass. 303; Ratcliffe 
 V. Ellison, -3 Rand. 537; Richardson v. Thompson, 1 Hump. 151; American 
 Notes to Wbollam -a. Hearn, 2 Lead. Cases, Eq. p. L page 561, 1st ed. ; but see 
 Keisilbraoh v. Livingston, 4 J. C. R. 144 ; Christ u. Diffenbaoh, 1 S. & B. 464 ; 
 Clark t). Partridge, 2 Barr, 13; 4 Barr, 166; Oliver v. Bell, 4 Rawle, 171; Rearich 
 V. Swineheart, 1 Jones*(Pa.), 238. 
 
TRUSTEES BY C NSTRTJCT I VE , TRUST. 237 
 
 of fraud, they will also be received on the other for the purpose of 
 rebutting it.(i) 
 
 It is one of the first principles of courts of equity, that a party, who 
 seeks to establish a constructive trust in his favor, even on the ground 
 of fraud, must use due activity and diligence in the prosecution of his 
 claim ; for as Lord Camden said in his celebrated judgment in 
 Smith V. Clay,(M) " A court of equity, which is never active in relief 
 against conscience or public convenience, has always refused its aid 
 to stale demands, where the party has slept upon his right, and 
 acquiesced for a great length of time."(M) 
 
 Accordingly it was laid down by Sir William Grant, M. R., in the 
 case of Beckford v. Wade,(a;) that though no time bars a direct trust 
 as between cestui que trust and trustee, a constructive trust will be 
 barred by long acquiescence, although the ground of original relief 
 was clear and even arose out of fraud, (a;) 
 
 And both before and since that case bills for relief on the ground 
 of fraud, whether actual or constructive, have repeatedly been dis- 
 missed s6lely on account of long acquiescence on the part of the 
 plaintiffs ; and this, though the circumstances were such, as would 
 no doubt have originally entitled the parties to the relief prayed. (y) 
 However it has been decided, that a bill charging fraud in obtaining 
 an estate cannot be demurred to on the ground of long acquiescence ; 
 for the operation of delay as a bar to the relief is a conclusion from 
 facts, and is not a matter of law.(z)' 
 
 {t) Vide supra, p. 96, 125. , Ball. & B. 118; Gregory u. Gregory, 
 
 («) Smith V. Clay, 3 Bro. C. C. 639, Cowp. 201 ; S. C. Jac. 631 ; Selsey v. 
 
 n.; and see Marquis of Cholraondley Rhoades, 1 Bligh. N. S. 1; Champion 
 
 V. Lord Clinton, 2 J. & W. 141, 151; v. Rigby, 1 R. & M. 539: Ex parte 
 
 Chalmer v. Bradley, 1 J. & W. 59 ; et Granger, 2 Deac. & Ch. 459 ; CoUard 
 
 vide post, Application of Stat, of Limi- v. Hare, 2 R. & M. 675; Norris v. Neve, 
 
 tation [263]. 3 Atk. 38; Pryce v. Byrn, 5 Ves. 681, 
 
 (a:) In Beckford v. Wade, 17 Ves. cited Campbell v. Walker, 5 Ves. 678- 
 
 97 ; and see Portlock v. Gardner, 1 82 ; Morse v. Royal, 12 Ves. 355 ; 
 
 Hare, 594, 607. Medlicott v. O'Donnell, 1 Ball. &. B. 
 
 (y) Bonny u. Ridgard, cited 4 Bro. 156; Portlock I). Gardner, 1 Hare, 594. 
 
 C. C. 138; Andrew v. Wrigley, 4 Bro. (z) Earl of Deloraine v. Browne, 3 
 
 C. C. 124 ; Blennerhasset v. Day, 2 Bro. C. C. 633, 646. 
 
 ' Long acquiescence or laches in the case of fraud or mistake is a bar in equity, 
 to relief. Hawley ■«. Cramer, 4 Cowen, 707; Powell v. Murray, 2 Edw. Ch. 
 644 ; 10 Paige, 256 ; Dobson v. Racey, 3 S(indf. Ch. 61 ; Piatt v. Vatier, 9 Pet. 
 405; McKnight v. Taylor, 1 How. U. S. 189 ; Wagner u.Baird, 7 How.U. S.234; 
 Veazie v. Williams, 8 How. U. S. 134; Hallett v. Collins, 10 Hovf. U. S. 174; 
 Hough V. Richardson, 3 Story, 659 ; Gould v. Gould, Id. 516 ; Irwin v. Robertson, 
 3 Rand. 549; Coleman v. Lyman, 4 Rand. 454; Anderson ■». Barwell, 6 Gratt. 
 405; Peebles v. Reading, 8 S. & R. 484; Hatfield v. Montgomery, 2'Porter, 58 ; 
 Steele v. Kimble, 3 Alab. 352 ; Edwards v. Roberts, 7 Sm. & M. 544; Bond v. 
 Brown, 1 Harp. Eq. 270 ; Peacock v. Black, 1 Halst. Eq. 535; Story Eq. i 520, 
 
238 TRUSTEES BY CONSTBUCTIVE TRUST. 
 
 But mere length of time of itself will not be a bar to a relief on 
 a constructive trust originating in fraud. The party entitled to the 
 benefit of such a trust must also be aware of his rights, and ac- 
 quiesce in being deprived of them ; and time in order to bar the 
 remedy, will not begin to run until he acquires, or might have ac- 
 quired, the knowledge of the fact on which the trust is founded.(a) 
 
 (a) Ryder v. Bickerton, 3 Sw. 81, n.; Ill ; Michaud v. Gerod, 4 How. U. S. 
 
 Blennerhasset v. Day, 2 Ball. & B. 118 ; 561 ; Doggett v. Emerson, 3 Story, 700; 
 
 Trevelyan v. Charter, 11 CI. & F. 714, Phalen v. Clark, 19 Conn. 421; Halett 
 
 [Bowens v. Evans, 2 H. L. Cases, v. Collins, 10 How. U^S. 174.] 
 237; Warner v. Daniels, 1 W. &■ M. 
 
 in notes. This maybe eveuincasesunaifectedby the Statute of Limitation, on the 
 mere ground of staleness. Ingam v. Toulmin, 9 Alab. 662 ; Mason v. Crosby, 1 
 Wood. & M. 342; Piatt j). Vatier, 1 McLean, 146; 9 Peters, 405. In Massa- 
 chusetts the statute applies in equity to constructive trusts, and therefore, except 
 in cases of actual and undiscovered fraud, six years' delay precludes relief. 
 Farnum v. Brooks, 9 Pick. 212. New York, by the Code of Procedure adopted 
 in 1851, § 78, &c., in actions for the recovery of real property, &c., or for the 
 recovery of possession thereof, seisin within twenty years is made necessary. 
 By § 91 (6) an action for relief on the ground of fraud, in cases which theretofore 
 were solely cognizable by a Court of Chancery, is to be brought within six years; 
 but the cause of action in such cases is not to be deemed to have accrued until 
 the discovery by the aggrieved parly of the fact constituting the fraud; and 
 by ^ 97, other actions for relief not thereinbefore provided for, which would 
 seem, by reference to the Revised Statutes, part iii. ch. IV. Art. 6, ^ 50, &c., to 
 apply to other cases of trusts formerly not cognizable at law; are to be com- 
 menced within ten years after the cause of action shall have accrued. See 
 Williamson v. Field, 2 Sandf. Ch. 534. In Wisconsin, similar limitations exist. 
 It is now established in the United States, contrary to the doctrine stated in the 
 text, and to some earlier cases, that where it appears on the face of the bill that the 
 statute of limitations or lapse of time is a bar, the objection may be taken by a 
 demurrer. The complainant, if there be circumstances accounting for the delay, 
 or bringing the case under one of the exceptions of the act, must state them in 
 the first instance, that they may be put in issue by the answer. Wisner v. Bar- 
 net, 4 Wash. C. C. R. 631 ; Dunlap v. Gibbs, 4 Yerg. 94 ; Humber v. Rector of Tri- 
 nity Church, 7 Paige, 197; affirmed 24 Wend. 595; Van Hook v. Whitlock, 7 
 Paige, 373; Maxwell v. Kennedy, 8 How. U. S. 210; Field v. Wilson, 6 B. 
 Monroe, 479 ; Ingraham v. Regan, 23 Mississippi Rep. (1 Cush.) 214; Fetters 
 V. See, 2 Barb. S. C. 490 ; Ferris v. Henderson, 12 Penn. St. R. 74; {per Lowrie 
 J.) ; Bank U. S. v. Biddle, 2 Pars. Eq. 27 ; McLean v. Barton, ftarrington, Ch. 
 279; Pratt i;. Northam, 5 Mason, 95; Story Eq. Plead. §484; contra Bulkley v. 
 Bulkley, 2 Day, 363; Hickman v. Stout, 2 Leigh. 1; see Denston v. Morris, 2 
 Edw. Ch. 37. But the laches must appear distinctly by the bill itself. Muirti. 
 Trustees, 3 Barb. Ch. 477; Battle v. Durham, 11 Geo. R. 17. And a general 
 demurrer where all the grounds of relief stated in the bill are not barred by lapse 
 of time, will be overruled. Radcliffe v. Rowley, 2 Barb. Ch. 23. When the case 
 is one of a presumption of payment merely, the defendant must allege payment 
 in his answer. Fetters v. See, 2 Barb. Sup. Ct. 490. And generally, the objec- 
 tion of acquiescence is one which must be made in the first instance, and 
 cannot be taken on appeal. The State v. Holloway, 8 Blackf. 45; Wills v. Dunn, 
 5 Gratt. 384. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 239 
 
 However it seems, that the mere poverty of a party is not suffi- 
 cient to do away with the effect of laches in prosecuting his 
 claim. (6) 
 
 This doctrine was established previously to the recent statute 3 & 
 4 Will. IV. c. 27, and was acted upon in numerous decisions, where 
 relief was afforded notwithstanding very long intervals since the 
 accruer of the title. (c) And in this sense and to this extent the dicta, 
 which are to be *found in the books, are undoubtedly true, r^igQ-i 
 that " no length of time will sanctify or cover a fraud. "(cZ) 
 
 And now by the 26th section of the statute 3 & 4 Will. IV. c. 27, 
 it is expressly enacted, that in cases of concealed fraud time shall 
 not begin to run, until the fraud, shall, or with reasonable diligence 
 might, have been known or discovered saving the rights of bona fide 
 purchasers for valuable consideration. 
 
 Upon the same ground it has been decided, that lapse of time will 
 not be a bar to the relief, where from the obscurity of the transac- 
 tion the plaintiff was unable to obtain full information of his rights ;(e) 
 or where the party entitled, is of weak understanding, or he con- 
 tinues under the influence of the defendant.(/) 
 
 And in order to displace the title of a party to relief on the ground 
 of his delay and acquiescence, it lies upon the defendant by distinct 
 and explicit evidence, to bring home to the plaintiff the knowledge 
 of the fact, on which the acquiescence is founded, and to which it 
 refers. {^)* 
 
 However where a party comes to the court after a great distance 
 
 (6) Roberts v. Tunstall, 4 Hare, 257. (d) Mulcahy v. Kennedy, 1 Ridg. P. 
 
 [Perry v. Craig, 3 Mis. 516; Locke v. C. 337; Pickering v. Lord Stamford, 2 
 
 Armstrong, 2 Dev. & Batt. 147; nor Ves. jun. 280. [See Prevost ■!>. Gratz, 6 
 
 the supposed poverty of the defendant, Wheat. 481 ; Michaud v. Girod, 4 How. 
 
 see Maxwell v. Henderson, 8 How. U. U. S. 560 ; Marsh v. Pell, 1 J. C. R. 598.] 
 
 S. 210.] (e) Murray v. Palmer, 2 Sch. & Lef. 
 
 (c) Stackpole v. Devoren, 1 Bro. P. 487. / 
 
 C. 9; Vernon tj. Vaudry, 2 Atk. 119; (/) Aylward v. Kearney, 2 Ball. & 
 
 Alder d. Gregory, 2 Ed. 280; Randall B. 463; Pickett ^'.Loggan, 14 Ves. 215; 
 
 V. Errington, 10 Ves. 423; Purcell v. Pnrcell ■«. M'Naraara, id. 91. [Ferris 
 
 M'Namara, 14 Ves. 91 Watson v. ». Henderson, 12 Penn. St. R. 74.] 
 
 Toove, 6 Mad. 153; Gordon t). Gordon, (g-) Randall v. Errington, 10 Ves. 
 
 3 Swanst. 400 ; Malony v L'Estrange, 427, 8 : Downes v. Grazebrook, 3 Mer. 
 
 1 Beat. 406. In Trevelyan v. Charter, 208. [See Doggettw. Emerson, 3 Story, 
 
 Sir C. Pepys, M. R., set aside a pur- 700; Callender «. Colegrove, 17 Conn, 
 
 chase at an undervalue by a steward, 1; Phalen. v. Clark, 19 Conn. 421.] 
 after an interval of forty-seven years. 
 Rolls, 2d June, 1835. [Affirmed 11 CI. 
 & F. 714.] 
 
 ' In a case of confirmation by devise the rule is different; Stump v. Gaby, 22 
 L. J. Ch. 352. 
 
240 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 of time to impeach a transaction for fraud, very clear and strong 
 evidence will be required to establish the plaintiff's case.(A) 
 
 In some cases, although the court has granted the main relief 
 prayed by setting aside the transaction, yet on account of the length 
 of time, that had elapsed before the claim was preferred, the account 
 has been directed to be taken only from the time of filing the bill.(i) 
 And the decree has been made without costs,(^) and arrears of rents 
 received will be given for only six years. (Z) 
 
 It is difficult to lay down as a general proposition what length of 
 acquiescence will be a bar to relief on the ground of fraud.' This 
 
 (A) Chandos v. Brownlow, 2 Ridg. (i) Pickett v. Loggan, UVes. 215; 
 
 P. C. 397; Chalmers u. Bradley, 1 J. & Malony ■«. L'Estrange, 1 Bealt. 406; 
 
 W. 59. [Bowen v. Evans, 2 H. L. Mulhallen v. Marum, 3 Dr. & W. 317. 
 
 Cases, 257 ; Montgomery v. Hobson, (k) Attorney-General v. Ld. Dudley, 
 
 Meigs, 437; Westbrooke i). Harbeson, Coop. 146, 8; Pearce v. Newlyn, 3 
 
 2McCord, Eq. 112; Page v. Booth, 1 Mad. 189. 
 
 Rob. Va. 161; Phillips v. Belden, 2 (i) Pearoe u. Newlyn, 3 Mad. 189. 
 Edw.\ Ch. 1 ; Powell u. Murray, 10 
 Paige, 256] 
 
 ' In Michaud v. Girod, 4 How. U. S. 561, the Court say, " We believe no case 
 can be found in the books, in which a court of equity has refused to give relief 
 within the lifetime of either of the parties upon whom the fraud is proved, or 
 within thirty years after it has been discovered, or becomes known to the party, 
 whose rights are affected by it." In Ward u. Van Bokkelen (1 Paige 104'), it was 
 decided that by analogy to the statute of limitation, twenty years was the shortest 
 period which could bar a proceeding in equity, to set aside a conveyance obtain- 
 ed by fraud. This analogy to the statute was adopted as the rule, where the fraud 
 had or might have been discovered, in Thompson v. Blair, 3 Murphy, 593; 
 Farr v. Farr, 1 Hill, Eq. 391 ; Field v. Wilson, 6 B. Monroe, 479; (see Bruce v. 
 Child, 4 Hawks, 372,) Perry v. Craig, 3 Mis. 525; Miller v. Mclntyre,6 Peters, 
 61 ; Bank XJ. S. v. Biddle, 2 Pars. Eq. 3 ; Ferris v. Henderson, 12 Penn. St. R. 
 54; Walker u. Walker, 16 S. & R. 379; see McDowall i;. Goldsmith, 2 Johns. 
 Mary. Ch. 370 ; and 19 Am. Jur. 339. But where there is no adverse possession, 
 or there could be no bar at law by lapse of time, so, it is said, there is none in 
 equity. Varich «. Edwards, 1 Hoff. Ch. 417; Elmendorf u. Taylor, 10 Wheat. 
 176; Barbour D. Whitelock, 4 Monr. 197. Most cases lay down no certain period, 
 but leave it to rest very much on the facts. Acquiescence for 18 years; Bell 
 V. Webb,2Gill. 163; for 11 years, Rhinelanderu. Barrow, 17 John. R. 538; for 12 
 years, Butler v. Haskell, 4Desaus. 651 : has been held insufficient. On the other 
 hand, a delay unexplained of " nearly 30 years;" Harrod v. Fauntleroy, 3 J. J. 
 Marsh. 548 ; Phillips v. Belden, 2 Edw. Ch. 1 ; Page v. Booth, 1 Rob. Va. 161 ; 
 Bond V. Brown, Harp. Eq. 270 ; of 38 years; Powell v. Murray, 10 Paige, 256 : of 
 46 years ; Maxwell v. Kennedy, 8 How. U. S. 210 : of 50 years; Anderson v. Bur- 
 well, 6 Grattan, 405 : of 27 years, with a lapse of 26 years after bill filed ; Hayes 
 V. Good, 7 Leigh, 486; has been ruled to be laches. But where the delay has 
 been caused by the act of the defendant in any way, the lapse of time will not 
 be material, Richards v. Jones, 3 G. & J. 163 ; Doggett v. Emerson, 3 Story, 700 ; 
 Callenderw. Colegrove, 17 Conn. 1; Phalen v. Clarke, 19 Conn. 421: and the 
 complainant's absence from the country will account for an apparent laches. 
 Hallett V. Collins, 10 How. U. S. 174. (The reporter has neglected the dates of 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 241 
 
 must necessarily be a matter of equitable discretion, depending on 
 the nature of the transaction, and the circumstances of the parties 
 in each individual case. In many of the cases indeed, -where relief 
 was given after a long interval, the question of acquiescence does 
 not appear to have been raised ; so that they can scarcely be con- 
 sidered as authorities on the point. The legal bar of twenty years 
 appears to have been treated as the proper limit on several occa- 
 sions •,{m) and it^was distinctly decided in one case, that equity will 
 not relieve, where the facts constituting the fraud are in the know- 
 ledge of the party, and he lies by for twenty-five years,fw) and in 
 ^another case twenty-one years' acquiescence was held to be 
 a bar to the relief.(o) [*170] 
 
 In Gregory v. Gregory, Sir William Grant, M. R., dismissed a 
 bill, to set aside a purchase by a trustee after a lapse of eighteen 
 years, upon the length of time only, and the decision was affirmed on 
 appeal by Lord Eldon.(p) 
 
 And in the case of Champion v. Rigby,(g') Sir John Leach, M. 
 R., refused to set aside a purchase by a solicitor from his client after 
 an acquiescence on the part, of the plaintiff for eighteen years. (^) 
 And in a late case acquiescence for eighteen years in a purchase by 
 a trustee was held by Vice- Chancellor Wigram to bar the right to 
 relief.(r) 
 
 In such cases, however, unless the case of acquiescence is extremely 
 strong, the bill will usually be dismissed without costs.(s) 
 
 In Pryce v. Byrn, Lord Alvanley, M. R., dismissed a bill to set 
 aside a purchase by trustees made twenty years before.(i) But in 
 Molony v. L'Estrange,(M) relief was given against a purchase by an 
 agent after an acquiescence of thirty years.(M) And in a late case 
 in Ireland relief was given against a lease fraudulently obtained by 
 a person, who filled the character of guardian, and agent, and re- 
 Cm) Smith V. Clay, 3 Bro. C. C. 639, (g) Champion v. Rigby, 1 R. & M. 
 n. ; Hovenden v. Ld. Annesley, 2 Sch. 539. 
 
 & Lef. 636, 7 ; Stackhouse v. Bamston, (r) Roberts v. Tnnstall, V. C. Wigram, 
 10 Ves. 466. 27th Feb. 1845, MS. [4 Hare, 257.] 
 
 (n) Blennerhasset v. Day, 2 Ball. & (s) Gregory v. Gregory, Coop. 20 1 ; 
 B. 118. Champion v. Rigby, 1 R. & M. 539; 
 
 (o) Selsey t). Rhodes, 1 Bligh. N. S. 1. Portlock v. Gardner, 1 Hare, 594. 
 
 {p) Gregory v. Gregory, Coop. 201; (t) Pryce v. Byrn, oiled 5 Ves. 681. 
 S. C. Jac. 631. (m) Molony v. L'Estrange, Beat. 406. 
 
 this case, so that the length of time which elapsed between the fraud and the 
 filing of the bill, does not appear.) In cases of mistake more diligence would 
 seem necessary, especially where parol evidence is to be resorted to. See Hite 
 V. Hite, 1 B. Monr. 177, where 17 years; and Bruce v. Child, 4 Hawks. 372; 
 where 19 years, acquiescence were held to bar relief. 
 
 16 
 
242 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 ceiver, where there had been a delay of eleven years in instituting 
 the suit, (a;) 
 
 Where the right is vested in a large body of persons, such as cre- 
 ditors, it has been decided, that acquiescence is no argument against 
 decreeing the relief. (?/) Although in the instances, where this was 
 decided, the acquiescence does not seem to have been for a very long 
 period. 
 
 This exception will also prevail in favor of large societies of per- 
 sons, such as a society of dissenters, for whose benefit relief was de- 
 creed in one case by Sir William Grant after a delay of twenty-two 
 years, although without costs on account of the length of time.(g) 
 And the same rule has been established in favor of charities gene- 
 rally, (a) But this subject will be considered more at length in a 
 future chapter.(J) 
 
 II,— BY EQUITABLE CONSTRUCTION IN THE ABSENCE OF FRAUD. 
 
 It not unfrequently happens, that the principles, adopted by courts 
 of equity in administering justice, differ materially from those, that 
 have been established by courts of law. The former are often car- 
 ried to a greater extent, and occasionally indeed are at variance 
 with the latter. In such cases the courts of equity vindicate their 
 own principles by means of their peculiar jurisdiction in personam, 
 and convert the holder of the *legal estate, though unaffected 
 L -'by fraud either actual or constructive, into a trustee for the 
 party who is entitled by the rules of equity to the beneficial in- 
 terest. 
 
 For instance when a contract has been entered into for the sale of 
 an estate, the legal title to the property remains unaffected, and at 
 law the parties have only acquired a right of action for breach of the 
 contract, in case it is not performed. But one of the first principles 
 of equity is, that it looks upon things, agreed to be done, as actually 
 performed ;(e) and acting on this principle, when the contract is made, 
 it considers the vendor as a trustee for the purchaser of the estate 
 
 {x) Mulhallen v. Marum, 3 Dr. & W. (a) Attorney-General, v. Hungerford, 
 
 317. 8 Bl. N. C. 437 ; Attorney-General v. 
 
 {y) Whichcote v. Lawrence, 3 Ves. Flint, V. C. Wigrarn, Mich. Term, 
 
 745,52; Case in Exchequer, cited 6 1844. [4 Hare, 147.] 
 
 Ves. 632 ; York Buildings Company v. (b) Post, Pt. 2, Ch. 2, s. 5, 
 
 Mackenzie, 8 Bro. P. C. 42. (c) Francis's Maxims, 13; 1 Fonbl. 
 
 (a) Attornej'-General, i).JA. Dudley, Eq. Tr. B. 1, Ch. 6, s. 9. 
 Cowp. 146. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 243 
 
 sold;(c?)' and the purchaser as a trustee of the purchase-money for 
 the vendor.(e) 
 
 This equity attaches immediately on the making of the contract, 
 and will not therefore be affected by the subsequent death, or bank- 
 ruptcy, or any other act of either of the parties, before the contract 
 is carried into execution.(/) 
 
 Another rule of equity, which admits of no exception, is, that the 
 court will never allow a trust to fail for want of a trustee.(^) There- 
 fore where a trust is created, but the party creating it has appointed 
 no trustee ;(A) or the trustee by the rules of law is incapable of 
 taking •,(^') or the appointment of the trustee fails by his death, or 
 refusal, or otherwise ;{k) in all these cases the court will follow the 
 estate into the hands of the party, in whom it becomes vested at law, 
 and will treat him as the trustee for the execution of the trust.(Z)^ 
 
 This description of trust is clearly within the recent statute (4 & 5 
 Will. IV. c. 23) for the amendment of the law relative to the escheat, 
 
 (d) Atcherley v. Vernon, 10 Mod. Desaus. 109; Tiernan v. Roland, 15 
 518 ; Davie v. Beardsham, 1 Ch. Ca. 39; Penn. St. 429; ilutherford v. Green, 2 
 Green v. Smith, 1 Atk. 572; 1 Sugd. V. Ired. Eq. 121.] 
 
 & P. 171; Wall V. Bright, IJ. & W. (g-) Co. Litt. 290, b. ; Butl. note 1, 
 
 500. • VI. ; 1 Mad. Ch. Pr. 580. 
 
 (e) Green v. Smith, ubi supra ; Pol- (A) Co. Litt. Butl. not. ubi supra; 
 lexfen 1). Moore, 3 Atk. 273 ; 1 Sugd. V. White u. White, 1 Bro. C. C. 12. 
 
 & P. 171. (i) Sonley v. Clock Maker's Com- 
 
 (/) Paul V. Wilkins, Toth. 106 ; Bar- pany, 1 Bro. C. C. 81. [Stone v. Griffin, 
 
 ker V. Hill, 2 Ch. Rep. 113; Winged v. 3 Verm. 400; Vidal v. Guard, 2 How. 
 
 Lefebury, 2 Eq. Ca. Abr. 32, pi. 43; U. S. 128.] 
 
 Orlebar B. Fletcher, 1 P. Wms. 737; (S) Hewett «. Hewett, 2 Ed. 332; Co. 
 
 Bowles u. Rogers, 6 Ves. 95, n. ; Whit- Litt. 113 a, n. 2; Doiley u. Sharrat, 2 
 
 worth V. Davis, 1 V. & B. 545 ; 1 Sugd. Fonbl. Eq. 216 ; Lewis v. Lewis, 1 Cox, 
 
 V. &P. 171, 2. [Not by death, Newton 162. 
 
 V. Swazey, 8 N. H. 9 ; Jacobs v. Locke, (/) 1 Mad. Ch. Pr. 580 ; White v. 
 
 2 Ired. Eq. 286 ; Glaze v. Drayton, 1 White ante, 48 ; 5 Beav. 222. 
 
 ' See notes to Woollam v. Hearne. 2 Lead. Cas. Eq. p. i. [355] ; and to Mack- 
 leth II. Siranions, 1 Id. [195].; McKay «. Carrington, 1 McLean, 50; Crawford ii. 
 Bertholf, Saxt. Ch. 458; Ten Eyck v. Simpson, 1 Sandf. Ch. 244; Waddington v. 
 Banks, 1 Brock, 468; Malin ». Malin, 1 Wend. 625; Kerr v. Day, 14 Penn. St. 
 114. So where a vendor under articles, is only able to convey a part of the lands 
 at the time, and subsequently acquires the remainder, he will hold it as trustee 
 for his vendee. Tyson v. Passmore, 2 Barr, 122; see McCall v. Coover, 4 W. 
 & S. 151 ; Wilson's Estate, 2 Barr, 325. 
 
 ^ Equity never suffers a trust to fail for want of a trustee, but if necessary will 
 appoint one; ante, page 48 note; King v. Donnelly, 5 Paige, 46 ; Field v. Arrow- 
 smith, 3 Hump. 442 ; Dawson v. Dawson, Rice Eq. 243 ; Lee v. Randolph, 2 
 Henn. & Mun. 12; Dunscomb v. Dunscomb, Id. 11 ; or treat the holder of the 
 legal title as such, Cushney v. Henry, 4 Paige, 345; Mclntyre School v. Zan. 
 Canal & R. R., 9 Hamm. 203; McKennan v. Phillips, 6 Whart. 571 ; Boykin v. 
 Ciples, 2 Hill's Eq. 200 ; Griffith v. Griffith, 5 B. Monroe, 113. 
 
244 TRUSTEES BY CONSTEUOTIVB TRUST, 
 
 and forfeiture, of trust estates. The fourth section of that act, ex- 
 pressly extends its operation to trusts arising or resulting by impli- 
 cation of law or construction of equity. There is therefore no doubt, 
 but that this equity would be enforced against the crown, or any 
 lord by escheat, upon whom the legal title to an estate so circum- 
 stanced would devolve in default of an heir or next of kin of the 
 creator of the trust, (m) 
 
 Again, where a testator appoints a debtor to be his executor ; such 
 an appointment will operate at law as a release, or extinguishment, 
 of the debt. The principle being, that as an executor cannot main- 
 tain an action against himself for the debt, the right of action, which 
 has been thus once voluntarily suspended by the act of the party, is 
 for ever gone and discharged, (w) 
 
 *In equity, however, the executor will be accountable for 
 L J the amount of the debt, due from himself as general assets 
 for the payment of the testator's debts and legacies. (o) And this 
 equity will be enforced in favor of the residuary legatee or next of 
 kin of the testator, (p)' 
 
 Another instance of a constructive trust of this description is, the 
 case of a person taking property from a trustee without notice of the 
 trust, but without having given any valuable consideration for it. In 
 such a case the party, in whom the property thus becomes vested, 
 will'be bound by the trust to the same extent, as the trustee, from 
 whom he took.(g') However we have seen that it would be different 
 with regard to a hona fide purchaser for a valuable considera- 
 
 (m) 1 Mad. Ch. Pr. ubi supra. [In son v. Gutteridge, 13 Ves. 264; 2Wms. 
 
 Hughes V. Wells, 13 Eng. L. & Eq. 401, Exors. 815, 16. [Story's Eq. § 12G9.] 
 so decided.] (p) Brown v. Selwyn, Cas. temp. 
 
 (n) Nedham's case, 8 Co. 136, a; Talb. 203; S. C. 3 Bro. P. C. 607; 
 
 Wentw. Off. Ex. Ch. 2, p. 73, 14th ed.; Carey v. Goodinge, 3 Bro. C. C.vllO. 
 
 2 Wms. Exors. 811, and cases cited. [See Pusey v. Clemson, 9 S. &. R. 204.] 
 
 (o) Flud V. Rumsey, Y"elv. 160 ; Phil- (5) Pye v. George, 1 P. Wms. 128 ; 1 
 
 lips V. Phillips, Freem. 11, and 1 Ch. Cruis. Dig. Tit. 12, Ch. 4, s. 16; Man- 
 
 Ca. 292; Errington v. Evans, 2 Dick, sell v. Mansell,2 P. Wms. 681. [Ante. 
 
 456 ; Carey v. Goodinge, 3 Bro. C. C. 164, note.] 
 Ill ; Berry v. Usher, 11 Ves. 90; Simp- 
 
 1 In many of the United States the common law rule is abrogated, and the 
 debt of an executor is required to be included in the inventory and assets, 
 Pennsylvania, Act of 1834, § 6 (so, before the act, Pusey v. Clemson, 9 S. & R. 
 204: Griffiths Chew, 8 S. & R. 32); Delaware, Rev. Code (1852), No. 1811; 
 New Jersey, Rev. Stat. (1847), 358; Maryland, 1 Dorsey's Laws, 394; Virginia, 
 Code' of 1849, 543; North Carohna, 1 Rev. Stat. (1837), 278; South Carolina, 
 Grimke Pub. Laws, 494 ; Georgia, Cobb's Dig. 302 ; Alabama, Clay's Dig. 228 ; 
 Florida, Thonipson's Laws, 196; Texas, Dallam's Digest, 92; Missouri, Rev. 
 St. (1845), 77; Mississippi, How. & Hutch. 404; Arkansas, Rev. St. (1838), 78; 
 Kentucky, 1 Moo. & Br. 668 ; Ohio, Rev. Stat. (1S31), 349. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 245 
 
 tion.(r)(') But persons, who obtain possession of an estate by actual 
 ouster and disseisin, -without collusion with the trustee will not be 
 bound by the trust, although they may have had notice of it. For 
 the disseisor creates a title for himself paramount to the trust.(s)^ 
 
 (r) Ante, p. 164. (s) Finch's case, 4 Inst. 85; Sugd. 
 
 Gilb. Us. 429. 
 
 (') The stock and other property of corporations is constructively a trust 
 fund for tlae payment of their debts; so that their creditors have, in equity, a 
 lien or priority in payment on it, over the stockholders. Therefore if a cor- 
 poration is dissolved, the contracts survive the dissolution, and the creditors 
 may enforce their claims against any property belonging to the corporation 
 which has not passed into the hands of a bona fide purchaser ; for such pro- 
 perty will be held affected with a trust, primarily for the creditors of the com- 
 pany, and, subject to their right, secondarily for the stockholders, pro rata. 
 (Mumraa t). The Potomac Company, 8 Peters's Rep. 281.) This doctrine was 
 held as to a judgment obtained by the plaintiff against the company, the right 
 to revive which by scire facias was determined by the Supreme Court of the 
 United States, to have been lost to the plaintiff by the dissolution of the corpo- 
 ration. The counsel for the plaintiff appear to have entrapped themselves by 
 their case stated and agreement, and the decision, or rather the reasoning of the 
 court upon the excluded point (p. 286), seems founded on a conceit, not to say 
 a quibble. The court also refused costs, because there was no such corporation 
 in esse as the defendants ; yet, without viewing them as a corporation pro ilM 
 vice, there was no party defendant in court. 
 
 The capital stock of an incorporated bank is also, constructively, a trust fupd for 
 all the debts of the corporation ; and no stockholder can take any share of such 
 capital until all the debts are paid. And if the capital should be divided, 
 leaving any debts unpaid, every stockholder, receiving his share, would, in 
 equity, be held liable pro raid, to contribute to the discharge of such debts out 
 of the fund in his own hands. Vose v. Grant, 15 Mass. Rep. 505, 517 ; Spear v. 
 Grant, 16 Id. 9; Wood v. Dummar. 3 Mason, 308 a. 
 
 The remedy, however, is in equity alone; for a court of common law, is in- 
 capable of administering full relief; since it has no power of bringing all the 
 proper parties before the court, or of ascertaining the full amount of the debts, 
 the mode of contribution, the number of contributors, or the cross equities and 
 liabilities, which may be absolutely required for a proper adjustment of the 
 rights of all parties, as well as of the creditors. {Ibid. 2 Story's Eq. 499, 500.) 
 The cases last quoted though referred to the head of trusts by equitable construc- 
 tion in the absence of fraud, strike the editor as belonging appropriately to trusts 
 raised by the implication of fraud ; for what can involve grosser symptoms of bad 
 faith than the act of stockholders deliberately dividing their corporate property to 
 the exclusion of their creditors'? He should think that on this ground, there would 
 be no difficulty in the question suggested by Mr. Justice Jackson in the cases in 
 Massachusetts, in the event of the insolvency of any of the stockholders, whether 
 the loss of the amounts received by them should be borne by the creditors or 
 the other stockholders. — T. 
 
 2 The registration of a deed or mortgage is only notice to those claiming 
 hrough or under the grantor or mortgagor, Felton v. Hunter, 11 Shepley, 29; 
 Keller v. Nutz, 5 S. & R. 246 ; Woods v. Farmere, 7 Watts, 382 ; Bates v. Norcross, 
 14 Pick, 224; Stuyvesant v. Hall, 2 Barb. Ch. 151; Crochett o). Maguire, 10 
 Mis. 34. 
 
246 TRUSTEES BY C ONSTKUCTIVB TRUST. 
 
 And a term outstanding in a trustee will attend the inheritance for 
 the benefit of the disseisor.(f) 
 
 *Upon the death of a mortgagee in fee, who has not fore- 
 L 'J closed, the mortgage debt will constitute part of his personal 
 assets, but the legal fee in the lands will descend, if not otherwise 
 disposed of, to his heir-at-law. The heir however will hold, as a 
 trustee by construction of equity, for the benefit of the parties enti- 
 tled to the personal estate. (m)^ 
 
 So where the legal interest in real or personal estate, is vested in 
 a mortgagee, or other incumbrancer, to secure a debt; which is 
 afterwards paid : he becomes a trustee for the mortgagor immedi- 
 ately upon the satisfaction of the debt, until a reconveyance be exe- 
 cuted, (a;) 
 / Money deposited by a person with a banker creates a legal debt 
 between the parties, which may be recovered by an action at law. 
 But in the absence of special circumstances, the customer is not at 
 liberty to treat the banker as a trustee, and sue him in equity for an 
 account. (?/) 
 
 There is another class of trustees, which may be referred to a con- 
 structive trust of the description now under consideration. This is, 
 trustees de son tort, or those, who of their own authority enter into 
 the possession or assume the management of property which belongs 
 beneficially to others.^ Such persons will of course be always liable 
 
 («) Reynolds v. Jones, 2 S. & St. 206. 251, n. (A.) ; Poole v. Pass, 1 Beav, 
 
 (u) Ellis V. Guavas, 2 Ch. Ca. 60 ; 1 600. 
 Fonbl. Tr. Eq. B. 3, C. 1, s. 13; 2 Cruis. {y) Foley v. Hill, [1 Phill. 399, af- 
 Dig. 90, 1. ' firmed, 2 CI. & Finn. N. S. 28. See 
 
 (a:) Baldwin v. Banister, 3 P. Wms. Potts v. Clegg, 16 M. & W. 321, and 
 
 American notes.] 
 
 ' Chase v. Lockerman, 11 G. & J. 185. But in America generally a mortgage 
 is treated both at law and in equity as a mere chattel interest, (see 4 Kent's 
 Comm. 160, &c., McCall v. Lenox, 9 S. & R. 302 ;) and a reconveyance is not 
 deemed necessary to revest the fee in the mortgagor; see 4 Kent, 194, and 
 notes. 
 
 ^ An administrator who interferes with the real estate of his intestate, and as- 
 sumes to act as trustee, may be treated as such, and cannot demur to a bill ask- 
 ing for his removal and the appointment of a new trustee. Le Fort v. Delafield, 
 3 Edw. Ch. 32 ; see McCoy v. Scott, 2 Rawle, 222 ; Schwartz Est., 14 Penn. St. 
 R. 47. In Rackham v. Siddall, 1 Mac. & G. 607; 2 Hall & T. 44; affirming S. 
 C. 16 Sim. 297, it was held that a person assuming to act as heir or devisee 
 of a trustee, and committing an act which if done by the trustee would have 
 been a breach of trust, cannot relieve himself from liability, by asserting that 
 he was not in fact trustee. So, one who enters on an infant's land, and takes 
 the rents and profits, may be treated as guardian or trustee, and is liable to 
 account as such. Wyllie v. Ellice, 6 Hare, 505 ; Drury v. Conner, 1 H. & G. 220 ; 
 Chaney^. Smallwood, 1 Gill, 367; Goodhue ■«. Bambell, Rice's Eq. 190; Bloom- 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 247 
 
 to be deprived of the possession, which they have thus assumed, at 
 the will of the parties beneficially entitled. And as a general rule 
 they will doubtless be liable to the payment of any costs or expenses, 
 which their unauthorized intrusion may have occasioned. Although 
 cases may be easily imagined, where the interference of a stranger 
 has proceeded from necessity and from the sole desire of protecting 
 and benefiting the property, and where consequently a trustee of 
 this description would be decreed to have his costs and other expenses. 
 During the continuance of their possession or management, such 
 trustees are subject to the same rules and remedies as oijjier con- 
 structive trustees. (2)^ 
 
 It is to be observed, that the general doctrine of constructive 
 trusts will not be enforced against the Bank of England with regard 
 
 to sums of *stock in their books. And as a general rule ^,^„,-, 
 
 • r 1741 
 
 they will only be bound to recognise the person who has the "- -' 
 
 legal title to the stock, (a)^ 
 
 (2) See Wilson v. Moore, 1 M. & K. land, 3 Ves. 55 ; Bank of England v. 
 
 127, 146. [Boddy v. Lefevre, 1 Hare, Parsons, 5 Ves. 665; Austin v. Bank of 
 
 602, n. and cases cited.] England, 8 Ves. 522; Bank of England 
 
 (a) Pearson v. Bank of England, 2 v. Lunn, 15 Ves. 583; Bristed u. Wil- 
 
 Bro. C. C. 529 ; Hartgo v. Bank of Eng- kins, 3 Hare, 235. 
 
 field V. Eyre, 8 Beav. 250 ; and being thus a fiduciary he cannot set up the 
 statute of li«iitations ; Goodhue v. Bambell, ut supr. But in these cases the 
 party injured electing to pursue the equitable remedy, instead of treating the 
 other as a trespasser, must in his turn do equity, and must therefore join in his 
 bill all who concur in the tortious act ; and cannot single one out, as he could at 
 law, Wyllie v. EUice, ut supr. ; see also Phene v. Gillam, 5 Hare, 5. 
 
 ' Another instance of a constructive trust may be found in the case of a suit 
 in equity by a creditor of an estate, to recover his debt from legatees or distri- 
 butees, who have received payment of their claims from the executor (acting 
 by mistake, but bona fide and without fault) before a due discharge of all the 
 debts. In such a case, the executor who has so distributed the assets, may be 
 sued at law by the creditor. But the lega.tees and distributees, although there 
 ' was an original deficiency of assets, are not at law suable by the creditor. Yet, 
 he has a clear right in equity in such a case, to fallow the assets of the testator 
 into their hands as a trust fund for the payment of his debt. The legatees and 
 distributees are in equity treated as trustees for this purpose ; for they are not 
 entitled to anything, except the surplus of the assets, after all the debts are paid. 
 Besides, they, in the case put, being ultimately responsible to pay the debt to the 
 executor out of such assets, if the executor should be compelled to pay it to 
 the creditor, by a suit at law, may be made immediately liable to the creditor 
 in equity. (Riddle v. Mandeville, 5 Cranch, 329, 330.) But the other is the 
 more broad and general ground, as the creditor may sometimes have a remedy, 
 where the executor, if he has paid over the assets, might not have any against 
 the legatees or distributees. (Ibid. 2 Story's Eq. 498.) See Russell v. Clarke's 
 Executors, 7 Cranch, 69, 97 ; M'Call v. Harrison, 1 Brock. C. C. Rep. 126 ; for 
 other cases of implied trust. — ^T. 
 
 2 See as to the liabilities of purchasers of stock standing in the name of 
 trustees, Walsh v. Stille, 2 Pars. Eq, 17 ; Mechanics' Bank v. Seton, 1 Pet. Sup. Ct. 
 
248 THE CREATION OF TRUSTEES 
 
 [*i75] BIYISION III. 
 
 THE CONSTITUTION OF TRUSTEES BY WAY OF SUB- 
 STITUTION IN THE PLACE OF THOSE ALREADY 
 CREATED. 
 
 The machinery of trusts would be very imperfect, if means were 
 not provided for filling up the vacancies which may be occasioned 
 from tirde to time by the death, or resignation, or refusal to act, of the 
 original trustees. New trustees may be created, either 1st, in ex- 
 ercise of a power contained in the trust instrument ; or 2d, by the in- 
 terposition of the Court of Chancery. 
 
 CHAPTER I. 
 
 THE SUBSTITUTIONAKY CREATION OF TRUSTEES IN 
 EXERCISE OP A POWER. 
 
 The oiSce and duties of a trustee, being matters of confidence, 
 cannot be delegated by him to another, unless an express authority 
 for that purpose be conferred on him by the instrument creating the 
 trust. 
 
 Therefore upon the death, or refusal to act, of one or more of 
 several co-trustees, the office of trustee will devolve with the legal 
 estate upon the survivors, or upon those who accept the trust, and 
 ultimately upon the heii", or personal representatives of the last sur- 
 vivor. Nor will there be any means of continuing the original num- 
 ber and the proper succession of trustees by any fresh appointment, 
 except under a decree of the Court of Chancery. 
 
 299; Porter v. Bank of Rutland, 19 Verm. 410; Reader v. Barr, 4 Hamm. 
 (Ohio), 446; Christmas v. Mitchell, 3 Ired. Eq. 535; though see Albert v. 
 Savings Bank, 1 John. Maryl. Ch. Rep. 406, S. C. 1 Am. Law Reg. 282; Lowry 
 V. Coram. Bank, C. C. U. S., for Maryland, 3 Banker's Magazine, 201 ; 10 Penna. 
 Law Jour. (3 Am. L. J. N. S.) Ill; which last cases rule, that the risk is on the bank 
 or corporation making the transfer. In Lowry v Comm. Bank, ut supr., Chief 
 Justice Taney considers the decisions as to the Bank of England to be excep- 
 tions depending merely on the meaning" and policy of the act of Parliament, 
 of which the management of the public stocks was transferred to it; remark- 
 ing that " certainly none of the English cases convey the idea that upon general 
 principles of law, a bank is not bound to notice a trust of its own stocks, 
 and must look to the legal estate." In Bank of Virginia v Craig, 6 Leigh, 
 399, it was held that a guardian holding stock of his ward, could transfer the 
 same, and that the bank could not prevent the breach of trust. 
 
UNDER A POWER. 249 
 
 If a trustee convey away the trust estate to anotlier, though it be 
 to his co-trustee, without any such authority created by the trust 
 instrument, or the sanction of the court, the conveyance will doubt- 
 less operate to pass the legal estate in the property, but the office of 
 trustee with all its responsibilities will still remain unchanged in the 
 original trustee. He will therefore continue personally answerable 
 to the cestuis que trusts for any misconduct or breach of trust, com- 
 mitted^iy the party, in whose power he has thus placed the trust 
 estate, (a) And the person to whom the property is so conveyed, 
 will be unable to exercise any of the powers, annexed to the office 
 of trustee, in any dealings with third persons respecting the trust 
 estate. (6) 
 
 *A power to nominate new trustees can seldom exist, ex- ^^ _ .-. 
 cept where the trust has been expressly created by deed or L 
 will. In all other cases of trust the continuance of the trustee by 
 substitutionary appointment must be provided for by application to 
 the Court of Chancery, which will form the subject of consideration 
 in the next chapter.' 
 
 A power to appoint new trustees can only be created by the author 
 of the trust himself. The court cannot in general delegate to others 
 the authority, which it assumes in these cases ; and trustees, ap- 
 pointed or substituted by the court, will not usually be authorized to 
 appoint others in their 'stead, (c)(1) 
 
 However, there seems to be an exception to this rule in cases of 
 charity. For in charitable trusts equity will not only appoint new 
 trustees to fill the vacancies actually created, but it will also sanc- 
 
 (a) Chalmers v. Bradley, 1 J. & W. (i) Ibid, et vide Lord Braybroke v. 
 
 68; Wilkinson u. Parry, 4 Russ. 272; Inskip, 8 Ves. 417. 
 
 6 Jarm. Bythewood's Conveyancing, (c) Bayley ■«. Mansell, 4 Mad. 226; 
 
 506, 3d ed. ; Adams v. Paynler, 14 Southwell ■«. Ward, Taml. 314; but see 
 
 Law Journ. N. S., Chanc. 54; Collyer's Joyce v. Joyce, 2 Moll. 276; 2 Sugd. 
 
 Ch. 532. Pow. 533, 6th ed.; Brown v. Brown, 3 
 
 Y. & C. 395. 
 
 (1) However, in Joyce v. Joyce, 2 Molloy, 276, whicji was a suit for the ap- 
 pointment of new trustees, the decree directed a proviso to be inserted in the 
 deed, authorizing the parties from time to time thereafter- to appoint new trus- 
 tees; and see White v. White, 5 Beav. 221 : and Larapayo v. Gould, 12 Sim. 
 426, and post. Chap. IL, sect. 3. [These cases are now overruled. See Holden 
 V. Dublin, 18 L. J. Ch. 479, 11 Beav. 594 ; Bowles v. Weeks, 14 Sim. 591 ; Og- 
 lander v. Oglander, 2 De G. & Sm. 381; 12 Jur. 786 ; 17 L. J. Ch. 439 ] 
 
 ' It has been held that a power reserved to the assignor, in an assignment for 
 the benefit of creditors to appoint new trustees, on the resignation of the old, was 
 void as interfering with the rights of, the creditors. Plank u. Schermerhorn, 3 
 Barb. Ch. 641; but see Robins v. Embry, 1 Sm. &M. Ch. 207. 
 
250 THE CREATION OF TRUSTEES 
 
 tion the insertion of a direction in the scheme, that regular appoint- 
 ments may be made by proper parties from time to time, as often as 
 occasion may require. (cZ) 
 
 Every well drawn deed of settlement and will creating trusts, 
 which may by possibility endure beyond a very short period, con- 
 tains powers, enabling any of the trustees for the time being to re- 
 linquish the trust, as well as provisions for supplying by fresh nomi- 
 nations the vacancies to be occasioned by the resignation, or the 
 death or incapacity of any trustee. (e) A suit in Chancery will be 
 the almost certain consequence of the omission of these provisions. 
 
 Such a power will be inserted in a settlement under articles as a 
 "reasonable and proper power." ' Thus in Lindow f . Fleetwood,(/) 
 a strict settlement was directed by a will, and that there should be 
 inserted in it, powers of leasing, sale, partition, and exchange, and 
 that in such settlement should be inserted " all such other proper 
 and reasonable powers, as are usually inserted in settlements of like 
 nature." Sir J. Leach, M. R., held, that a power to appoint new 
 trustees was a proper and reasonable power to be inserted in the set' 
 tlement.(/) Some reliance indeed was placed by the court upon the 
 direction being in a separate and distinct sentence, but Sir E. Sug- 
 den in his work on Powers observes, that " appears to be too thin a 
 distinction. "(^) 
 
 In framing these powers the greatest care should be taken to pro- 
 vide for every possible contingency, in which a change or new ap- 
 pointment of trustees may become necessary, or desirable, so as to 
 obviate the expense and trouble of an application to the Court of 
 P^^„„-i Chancery.(l) And where an *appointment is made under 
 •- -I such a power, it is of the last importance both tp the retiring 
 
 (d) Attorney-General v. Shore, 1 M. (e) 6 Jarm. Bythew. Convey. 506, 
 
 & Cr. 394; 2 Sugd. Pow. 533, 6th ed. ; 3d ed. 
 
 Attorney-General v. Winchelsea, 3 Bro. (/) Lindow v. Fleetwood, 6 Sim. 
 
 C. C. 373; S. C. Seton, Deer. 131; case, 152; Lampayo v. Gould, 12 Sim. 426. 
 12 Sim. 262. (g-) 2 Sugd. Pow. 527. 
 
 (1) The following is suggested as a proper form for a power of appointing new 
 trustees of property settled upon the usual trusts in stiict settlement. 
 
 Provided always, and it is hereby further declared, that if the trustees hereby 
 appointed, or any of them or any future trustees or trustee hereof shall die 
 (either before or after their or his acceptance of the trusts thereof), go to reside 
 abroad, desire to be discharged from, renounce, decline or become incapable or 
 unfit to act in the trusts of these presents, while the same trusts or any of them 
 shall be subsisting. Then, and in every or any such case, and so often as the 
 same shall happen, it shall be lawful for the said (the cestuis que trusts [if any] 
 for life), or the survivor of them by any writing or writings under their, his, or her 
 hands or hand attested by two or more witnesses, and after the decease of such 
 survivor then for the surviving or continuing trustees or trustee hereof, or the 
 executors or administrators of the then last acting trustee (whether such surviv- 
 
UNDER A POWER. 251 
 
 and the newly appointed trustee, as well as to the cestuis que trusts 
 and other persons interested, to ascertain, that the appointment is 
 clearly sanctioned by the terms of the power. If the circumstances 
 do not warrant the making the new appointment, or there be any 
 irregularity in the mode of exercising the power, the appointment 
 will be bad, and the retiring trustee will not be exonerated from the 
 responsibilities of the trust, whilst the newly appointed trustee will 
 be unable to exercise the powers attached to the office. (A) 
 
 The power should express plainly the cases, in which new trustees 
 may be appointed, and when and by whom the appointment is to be 
 made, it should also embrace every event, that can render such an 
 appointment necessary, viz.; the death of all or any one or more of 
 the original or substituted trustees, their absence from the country, 
 their wish to retire from the office, or their origmal refusal to accept 
 it, or finally their future incapacity to discharge its duties ; and it is 
 seldom that any difficulty can arise either upon the construction or 
 effect of the power when so framed. 
 
 However the construction of these powers, when less accurately 
 framed, has not unfrequently been the subject of litigation. (1) 
 
 ik) See Adams v. Paynter, 14 L. J. N. S., Ch. 54; 1 Coll. Ch. 532. 
 
 ing trustees or trustee or executors or administrators respectively shall be willing 
 to act in other respects or not), by any vpriting or writings, under their or his 
 hands or hand attested by two or more witnesses, to nominate and substitute 
 any person or persons to be trustee or trustees hereof in the place of the trustee 
 or trustees so dying, going to reside abroad, desiring to be discharged, renounc- 
 ing, declining, or becoming incapable or unfit to act as aforesaid. And that so 
 often as any new trustee or trustees hereof shall be appointed as aforesaid, all 
 the hereditaments, &c., which shall for the time being be holden upon the trusts 
 hereof, shall be thereupon conveyed, assigned, and transferred respectively in such 
 manner, that the same may become legally and effectually vested in the acting 
 trustees hereof for the time being, to and for the same uses and upon the same 
 trusts and with and subject to the same powers and provisions as are herein 
 declared and contained of, and concpning the same hereditaments and premises 
 respectively, or such of the same uses, trusts, powers, and provisions as shall then 
 be subsisting or incapable of taking effect. And that every new trustee, to be 
 from time to time appointed as aforesaid, shall thenceforth be competent in all 
 things to act in the execution of the trusts hereof, as fully and effectually and 
 with all the same powers and authorities to all purposes whatsoever, as if he had 
 hereby been originally appointed a trustee in the place of the trustee, to whom 
 he shall, whether immediately or otherwise, succeed. 
 
 (1) Where there was a power in a deed of settlement of a dissenting chapel, 
 for the appointment of new trustees on the desertion or removal of any existing 
 trustee ; it was held by Lord Eldon, that the clause did not apply to the case of a 
 trustee, who had left the trust, on account of its having been converted by the 
 other trustees against his approbation to purposes distinct from the intention of 
 the founder. Attorney.sGenerai v. Pearson, 3 Mer. 412. 
 
252 THE CREATION OF TRUSTEES 
 
 In the case of Morris v. Preston,(i) powers of sale and exchange 
 were given in a settlement to the trustees to preserve contingent 
 remainders ; and there was a power, in case of the death of any or 
 either of the trustees, for the husband and wife, or the survivor, with 
 the consent of the surviving co-trustee or co-trustees, to appoint any 
 new trustee or trustees ; and upon such appointment the surviving 
 co-trustee should convey the estate, *so that the surviving 
 L -I trustee and trustees, and the new trustee or trustees, might • 
 be jointly concerned in the trusts, in the same manner, as such sur- 
 viving trustee and the person so dying would have been, in case he 
 were living. — The purchaser objected to the title of trustees under 
 the power of sale, because they were not appointed until the death 
 of both the trustees of the original settlement, which was not autho- 
 rized by the power : but the objection was waived without argument.(i') 
 With respect to this case Sir E. Sugden has observed, that the 
 power in terms clearly did not extend to the event which happened: 
 it contemplated only an appointment on the death of one trustee, and 
 not an appointment after the death of both : the ground on which the 
 plaintiff's counsel waived the objection must have been, that the in- 
 tention of the power was, that new trustees should be appointed, 
 whenever circumstances might require it. " Clear as this point ap- 
 pears to be," says the same learned writer, " it is to be regretted, that 
 the opinion of the court was not taken upon it. It has more than 
 once happened, that what counsel has given up in argument, the court 
 has enforced. "(^) However, the case of Morris v. Preston has since 
 been judicially recognised as an authority by the learned writer and 
 judge, whose observations have just been cited. 
 
 In a recent case in, Ireland two trustees were appointed by a settle- 
 ment, and there was a power for the tenant for life together with the 
 surviving or continuing or acting trustee for the time being to nomi- 
 nate new trustees, with a direction that the trust estate should there- 
 upon be vested in the new trustee jointly with the surviving or 
 continuing trustee. One of the original trustees died, and the 
 other became bankrupt, and it was objected that the power was con- 
 sequently gone ; but the Lord Chancellor (Sir E. Sugden) overruled 
 the objection, observing, that it happened in many cases without the 
 power being affected. (^) 
 
 In a very late case before the Vice-Chancellor of England, three 
 executors and trustees were appointed by a will, which contained the 
 ordinary power, in case all or any of the said trustees should die, &c., 
 that it should be lawful for the surviving, continuing, or acting, trus- 
 tees or trustee^to appoint new trustees. Two of the trustees 
 
 (i) Morris v. Preston, 7 Ves. 547. {I) Re Roche, 1 Conn. &Laws. 306; 
 
 Ik) 2 Sugd. Pow. 529, 30.' 2 Dr. & W. 287. 
 
UNDER A POWEK. 253 
 
 the testator's lifetime ; and although it was unnecessary to decide the 
 point, his Honor's opinion evidently was that the power did not apply 
 to the event that had happened. "It appears to me," ohserved his 
 Honor, "at least very questionable, whether Mr. John, Q-ladstone 
 {the surviving trustee) could in the events that have happened, have 
 appointed new trustees." I cannot but think, that it was at least a 
 question whether he had the power, which he certainly might have 
 exercised, if the two other trustees had died after the testator, (m)^ 
 
 The grounds of this opinion of the learned judge doubtless were, 
 that the persons dying in the testator's lifetime never filled the cha- 
 racter of trustees, so as to come within the terms of the power ; and 
 in framing the power in a will it may be advisable to guard against 
 this difficulty by expressing, that it is to take effect whether the trus- 
 tees *die before or after the testator, or before or after the r;^-|»Q-, 
 acceptance of the trust. '- •* 
 
 In Sharp v. Sharp,(w) the power in a will provided that, in case 
 either of the testator's two trustees should happen to die, or desire 
 to be discharged from, or neglect, or refuse, or become incapable, to 
 act in the trust thereby in them reposed, it should be lawful for the 
 survivors or survivor of the trustees so acting in the trust, wherein 
 such vacancy should happen, or the executors or administrators of 
 the last surviving trustee, to appoint any other trustee or trustees. 
 Both of the trustees refused to act, and conveyed the trust estate to 
 two new trustees of their own nomination. It was held by the Court of 
 K. B. that the power was given to the surviving or continuing trus- 
 tees only, who acted in the trust, and not to those who, in limine 
 refused to act ; and that the power did not apply to, and was not 
 well exercised in the case then before them.(w) 
 
 It will be observed that the form of the power, as already stated, 
 expressly provides for such a case as Sharp v. Sharp, by authorizing 
 the surviving or continuing trustees to appoint, whether they are 
 willing to act in other respects or not. 
 
 It was decided by this last case,'' that a power to appoint new 
 
 (jn) Walsh v. Gladstone, 8 Jur. 51 ; (n) Sharp v. Sharp, 2 B. & A. 405. 
 [14 Sim. 12.] 
 
 ' In Winter v. Rudge, 15 Sim. 596, the Vice-Chancellor, in accordance with 
 the opinion above expressed, held, that a power in a will to a cestuy que trust 
 during her life, and after Tier death to the then surviving or continuing trustee, to 
 appoint any new trustee or trustees, as often as any of the first or future trustees 
 should die, &c., did not authorize the appointment by \he cestuy que trust of anew 
 trustee in place of one who died in the testator's lifetime. But in the subse- 
 quent cases of Earl of Lonsdale v. Beckett, 19 L. J. Ch. 342; and Hadley's Trust, 
 21 L. J. Ch. 109; 16 Jur. 98; 9 Eng. L. & Eq. 67, this decision appears to be 
 overruled, and such a power will apply where the trustee dies during the testa- 
 tor's lifetime, as well as after. 
 
254 THE CREATION OF TRUSTEES 
 
 trustees, given to the survivor of several trustees, may be legally 
 exercised by the continuing trustee upon resignation or refusal to 
 act of the others, (o) 
 
 The same case has also determined, that where three distinct 
 classes of trustees are appointed by name for three distinct proper- 
 ties ; and the power to appoint new trustees is expressed to take 
 effect upon the death, &c., of any one of the first class of trustees 
 by name, so far as applied to the trusts reposed in them ; or upon 
 the death, &c., of any one of the second class of trustees, also naming 
 them, so far as applied to the trusts reposed in them ; and there was 
 no mention of the third class of trustees : the power will not apply 
 to the last class of trustees or the property vested in them as such, 
 but will be confined to those two classes, who are expressly men- 
 tioned, (p) 
 
 It was decided by Sir E. Sugden in the case of Re Roche, that 
 the "bankruptcy " of a trustee rendered him " unfit to act," so as 
 to bring him within the scope of the power, which was expressed to 
 take effect, in case of any trustee becoming " unfit."(qy 
 
 Where the survivor of two or more trustees is desirous of retiring, 
 it is improper for him to appoint two new trustees by the same deed 
 in the place of himself on his retirement and of the deceased trustee, 
 and such an appointment will be set aside.(r)^ The proper course in 
 such cases is, for the old trustee to appoint a new one in the place 
 of the one, who is dead, and the newly appointed trustee then by a 
 subsequent deed may appoint another in the place of the old trustee 
 who retires. 
 
 Where more trustees than one are originally appointed, the power 
 
 r*180n ^^ *usually worded, clearly does not authorize one of the 
 
 trustees to retire, and without appointing another person in 
 
 (o) See Eaton v. Smith, 2 Beav. 236, (5) Re Roche, 1 Conn.& Laws. 306; 
 
 9, and Hawkins v. Kemp, 3 East, 410 ; 2 Dr, & W. 287. 
 
 Cooke V. Crawford, 1 1 Law Journ. N. (r) White v. Parker, 1 Bing. N. C. 
 
 S., Chanc. 406; 13 Sim. 91. 582. [See post 183, note.] 
 
 ip) Sharp V. Sharp, 2 B. & A. 405. 
 
 ' But " incapable to act " contemplates personal incapacity ; and therefore, a 
 trustee Who had become bankrupt, and had been indicted for not surrendering 
 to the fiat, and had absconded, was held not within these words. In Re Watt's 
 Settlement, 9 Hare, 106; 15 Jur. 459 ; 20 L. J. Ch. 337; 4 Eng. R. 67, In re 
 Roche was, however, recognised. See Turner v. Maule'. 15 Jur. 761, 5 Eng. L. & 
 E. 222, accord. In Walker v. Brungard, 13 Sra. & M. 724, 758, a power of this 
 nature was held to be entirely in the cestui que trust's discretion. 
 
 " Under a power enabling a surviving or continuing trustee to appoint a new 
 trustee in the place of a trustee dying, going to reside abroad, or becoming in- 
 capable of acting, &c., the surviving trustee, although himself residing abroad, 
 may appoint another trustee in the place of one deceased. O'Reilly v. Alderson, 
 8 Hare, 101. 
 
UNDER A POWER. 255 
 
 his place, to vest the entire property in his colleagues as the sole 
 trustees.(s) As a general rule it can scarcely be desirable, that 
 such an authority should be conferred, as its obvious effect would be 
 in many cases, materially to diminish the security of the trust estate. 
 If, therefore, such a power should ever be considered desirable, it 
 should be provided for by an express clause. (f) 
 
 Upon this principle the original number of trustees cannot in 
 general be lessened ; and where two trustees were originally ap- 
 pointed, and the original trustees, being desirous of retiring, joined 
 in appointing a single trustee in their place, and transferred to him 
 the trust funds, it was held, that this act was not warranted by the 
 power,(l) and was therefore a breach of trust.(M)(2)^ 
 
 (s) Wilkinson v. Parry, 4 Russ. 274 ; (J.) See 6 Jarra. Bythew. Convey. 509, 
 Adams v. Paynter, 14 Law Journ. N. S. 3d edit. 
 Chanc. 154 ; [1 Coll. Ch. 532.] (u) Hulme v. Hulme, 2 M. & K. 682. 
 
 (1) Where the esxercise of the power of appointment is not imperative on every 
 vacancy, and the original number has been diminished by death, it is conceived, 
 that an appointment by the survivors of one trustee in the place of the one, who 
 made the last preceding vacancy in the trust, would be good, and that it is not 
 necessary to make up, the full original number of trustees. For instance, where 
 A., B., and C, are appointed trustees, and A. dies, and then B. dies, and C. 
 then appoints one trustee in the place of B., there seems to be no reason for 
 questioning the validity of that appointment. Although it might be otherwise, 
 if the appointment of the single trustee were expressed to be in the place both of 
 A. and B. 
 
 (2) Since the chapter on this subject went through the press, there has been a 
 later judicial decision on an important point, connected with the validity of the 
 appointment of new trustees under a power : and according to that decision, the 
 usual power of appointing new trustees authorizes the appointment of a fewer 
 number of trustees in the place of a larger number originally created. In Corrie 
 V. Byrom (the case alluded to), a testator devised all his real estate to five 
 trustees (whom he also appointed his executors), and the survivors and survivor 
 of them, and the heirs and assigns of such survivor, in trust to sell for the be- 
 nefit of his children and the issue of any deceased child in such manner, &o., 
 as his wife (who -was also one of the trustees) should appoint The will con- 
 tained a power framed in the ordinary way, for the trustees or trustee for the 
 time being to appoint any new trustees or trustee in case of the death or retire- 
 ment, &c., of the existing trustees or trustee. All the trustees survived the 
 testator, and they all proved the will, and acted in the trust ; three of them after- 
 wards died at different intervals, and upon the death of the third, A. and B., the two 
 surviving trustees executed a deed, appointing C. to be the new trustee jointly 
 with themselves in the place of the three deceased trustees, and at the same time a 
 conveyance of the trust estate was made to A., B., and C, upon the trusts of 
 the will. Shortly afterwards A. and B. (the two survivors of the original trus- 
 tees) both died, and C. then appointed D. to be the new trustee in the place of A. 
 who had died last, and by a deed dated the following day, which recited the desire 
 of C. to retire from the trust, D. appointed E., F., and G., to be new trustees 
 jointly with herself in the place of C. and the original trustees. These appointments 
 
 ' See Hospital v. Amory, 12 Pick. 445 ; but see Greene v. Borland, 4 Mete. 332. 
 
256 THE CREATION OP TRUSTEES 
 
 r*l «i 1 *^^^ SO with regard to the converse case, of appointing 
 *- -■ several trustees in the place of one. As a general rule the 
 
 were accompanied by conveyances of the legal estate to the newly appointed 
 trustees. D., E., F., and G.,, as the acting trustees of the will, contracted to sell 
 a part of the estate, which was of considerable value, but an objection was 
 taken by the purchaser to the title of the trustees to exercise the power of sale, 
 on the ground that the new appointments had been improperly made, as the 
 original number of five trustees ought to have been continued. In order to avoid 
 the expense of a hostile suit for specific performance, the parties determined to 
 take the opinion of the court upon the point by means of an amicable suit 
 between the cestuis que trusts and the trustees, and a bill was accordingly filed 
 by the cestuis que (i-«s?s praying alternately in the first instance, that the appoint- 
 ment of the new trustees might be declared valid, or if the court considered 
 it invalid, that new trustees might be appointed. The cause was brought before 
 Vice-Chancellor Wigram, who expressed a very decided opinion, that the ap- 
 pointment was good, and that there was no foundation whatever for the objection, 
 but his Honor refused to make a declaration to the effect, as it was against 
 a practice of the court to make a bare declaration, unaccompanied by the 
 grant of any relief. The plantiifs then amended their bill, by striking out the 
 first alternative in the prayer, and the bill, as amended, prayed a declaration 
 that the appointment [of new trustees was invalid, and that new trustees might 
 be appointed by the court. Upon the cause coming on again, his Honor acted 
 upon his previously expressed opinion, and dismissed the bill with costs, the 
 decree directing the dismissal being prefaced by a declaration that' the appoint- 
 ment of D., E., F., and G., as the new trustees was good. Corrie v. Byrom, 
 Vice Chancellor Wigram, 26th April, 1845, M. S. 
 
 As this decision was made in an amicable suit, and without being adversely 
 argued, it cannot be regarded as an authorative decision on the point in question, 
 and it is to be regretted, that the matter was not brought before the court in a 
 more conclusive manner by means of a suit against the purchaser for a specific 
 performance. However, as far as it goes it is an express decision, and by an 
 existing judge, not only that the appointment of one trustee expressly in the place 
 of three or more who have died is a good exercise of a power, but also, what is 
 still stronger, that the appointment of fewer trustees than the original number is 
 valid, where one of the existing trustees retires from the trust. It may be re- 
 marked, that the observations of Vice-Chancellor Knight Bruce, in Meinertzhagen 
 V. Davis, 1 Coll. Ch. R. 353, as to the propriety of adhering to the original 
 number of trustees, are somewhat at variance with Vice-Chancellor Wigram's 
 decision in Corrie v. Byrom ; moreover, the considerations attending the protec- 
 tion and security of the trust property, which might be materially lessened and 
 endangered by the diminution of the number of trustees, would suggest the 
 propriety of receiving that decision, and the principle which it involves, with 
 some degree of caution. [In a subsequent case, before the Vice-Chancellor of 
 England, the doctrine of Corrie v. Byrom was followed. There a settlement by 
 which three trustees were appointed contained a power for the cestui que trust, 
 in case the trustees therein named, or either of them, should die or be discharged 
 from the trust, to appoint any other person or persons to be trustee, or trustees in 
 the place of such trustee or trustees sg dying or being desirous to be discharged. 
 One trustee died and the other two were desirous to be discharged, when two 
 new trustees only were substituted. Held, that their appointment was good, and 
 ther etiring trustees, who refused to transfer the fund but paid it into court, 
 were ordered to pay the costs. In Re Fagg's Trust, 19 L. J. Ch. 175.] 
 
UNBBR A POWER. 257 
 
 original number of trustees ought to be adhered to ; it is a rule of 
 convenience, and generally settled, (x) The appointment of two or 
 more trustees in the place of one must therefore be regarded in 
 general as invalid, (y) And such an appointment unquestionably 
 should never be made, unless it be explicitly and distinctly autho- 
 rized by the terms of the power. 
 
 But, if the expressions contained in the power necessarily imply, 
 that the appointment of a greater number of trustees, must have 
 been in contemplation, such an appointment will be supported. For 
 instance, where only two trustees are originally appointed, and the 
 power provides for the appointment of a new trustee or trustees (in 
 the plural) on the death, &c., of the existing trustee or trustees, it 
 has been held, that the terms of the power necessarily contemplate 
 an increase in the number of trustees.(2) But this ground of con- 
 struction fails, where the number of trustees originally created is more 
 than two. (ay 
 
 However, the court has not in every case adhered strictly to this 
 rule, such as it is. And an increase in the original number of trus- 
 tees has been sanctioned on general grounds without reference to 
 the special terms of the power. In the late case of Sands v. Nugee,(6) 
 by a settlement in the Scotch form certain estates were vested in 
 two trustees, with power for the settlor to appoint any other persons 
 to be trustees ; and it was directed that two trustees should be a 
 quorum. Each of the trustees, who should accept the trusts, was 
 empowered to nominate any other person to succeed to himself in 
 the trust after his decease. One of the original trustees disclaimed, 
 the other by will appointed three persons to succeed him in the trusts, 
 and devised and bequeathed to them all the trust property. One of 
 those persons only accepted the trust, and he contracted with the 
 defendant for the sale of part of the real estate. The defendant ob- 
 jected to the title on the *ground, that the appointment 
 of three trustees was not authorized by the power in the set- •- J 
 tlement: but Sir L. Shadwell, V. C, considered, that there was 
 nothing in the objection, and overruled the exception, which had 
 
 (a;) Per V. C. K. Bruce in Meinertz- (o) Ex parte Davis, 2 N. C. C. 468. 
 hagen v. Davis, 8 Jur. 973; S. C. 1 (b) Sands d. Nugee, 8 Sim. 130; and 
 
 Coll. Ch. R. 335. see In re Welch, where, on a reference 
 
 (j/) Ex parte Davis, 2 N. C. C. 468 ; to the Master, four trustees were ap- 
 
 see Devy v. Peace, Taml. 77. pointed by him in the place of the sur- 
 
 (z) D'Almaine v. Anderson, Lewin, vivor of three original trustees ; 3 M. 
 
 Trust, 465 ; Meinertzhagen v. Davis, & Cr. 293. 
 ubi supra. 
 
 ' But it is not contrary to the practice of the court, to appoint three trustees in 
 the place of two nominated in a will containing no power to appoint new 
 trustees. Birch v. Cropper, 2 De Gex & Sm. 255. 
 
 17 
 
258 THE CKEATION OF TRUSTEES 
 
 been taken by the defendant to the Master's report in favor of the 
 title. 
 
 The opinion of the learned judge who decided this case, appears 
 to have been clear on the point. However it is to be observed, that 
 the terms of the power, being to nominate one person, did not war- 
 rant the appointment of three ; that appointment must therefore 
 have been supported only on the ground of the intention. Now the 
 direction in the settlement, that two trustees should form a quorum, 
 implied, that it was considered by the settlor, that some discretion and 
 management would be required in the administration of the trust. If 
 the appointment of three trustees in the place of one were good, by the 
 same reasoning the appointment of thirty or any other number would 
 be equally good ; and thus it would be in the power of any one trustee, 
 by filling the trust with a large number of nominees of his own, to 
 swamp and render nugatory the control and protection afifbrded 'to 
 the trust estate by the plurality of trustees. In addition to this the 
 incumbrance and complexity, which may thus be occasioned to the 
 title, is an obvious and not an insignificant objection to such an ex- 
 ercise of the power. In the case of D'Almaine v. Anderson,((;) 
 before the same learned judge, two trustees were appointed by the 
 testator ; and the will contained the usual power in case of the death, 
 &c., of the trustee, " for the surviving or continuing trustee or 
 trustees for the time being to appoint one or more person or persons 
 to be a trustee or triistees in the room of the trustee or trustees so 
 dying," &c. One of the trustees died, and the survivor appointed 
 two new trustees in his place. The Vice Chancellor expressed his 
 opinion, that such a case was immediately contemplated hy the pro- 
 viso.{a) The principle of this decision has been already considered. 
 The same point afterwards came before Sir K. Bruce, V. C, sitting 
 as chief judge of the Court of Review, and the case of Sands v. 
 Nugee, and that of D'Almaine v. Anderson were cited. But his 
 Honor declined to sanction the appointment of four trustees in the 
 place of the original number of three, who had all died. In the 
 case in question the power was contained in a settlement, and 
 authorized the tenants for life or the survivor " from time to time, 
 as often as there should be occasion, to appoint any other person or 
 persons to be a trustee or trustees in the place of the trustee or trus- 
 tees so dying, &c." The original number of trustees in this case 
 was three; consequently the plural number in the alternative of the 
 power did not necessarily refer to the appointment of several trus- 
 tees in the place of one, as in D'Almaine v. Anderson, and his Honor 
 distinguished that case from the one before him on that ground, and 
 from that of Sands v. Nugee, on the ground, that the settlement 
 there was in the Scotch form.(c?) 
 (c) Lewin, Trust. 465. (rf) Ex parte Davis, 2 N. C. C. 468. 
 
UNDER A POWER. 259 
 
 In a still later case also, before V. 0. K. Bruce, the original num- 
 ber *of trustees of a settlement was two; and the power of r^^-ioo-i 
 appointing new trustees, was expressed alternatively in the L J 
 plural number, as in D'Almaine v. Anderson. The appointment of 
 three trustees in the place of the two original trustees was, therefore, 
 supported for the reason already, stated ; viz., that those expressions 
 in the power showed that such an appointment must have been con- 
 templated by the settlement, (e) 
 
 In order to preclude any question on this point, it might be advi- 
 sable to insert a proviso, that the original number of trustees is to be 
 maintained in every appointment. And if that be not the intention 
 of the parties, an express direction authorizing the increase or dimi- 
 nution of the original number of trustees should always be inserted 
 in the power. 
 
 A question can seldom arise as to the parties by whom the power 
 is to be exercised. That must of course always depend on the terms 
 of the power itself. In the case of settlements and wills where im- 
 mediate beneficial interests are given to persons sui juris, the power 
 is usually and properly given to those parties during their lives, or at 
 all events its exercise is made subject to their consent. Where there 
 are no competent parties who have a direct and certain beneficial in- 
 terest in the trust property, it may sometimes be a question, whether 
 the power shall be vested in the surviving or continuing, or in the retir- 
 ing trustee or the representative of the deceased trustee. On this sub- 
 ject Mr. Jarman has the following observations : "On behalf of the sur- 
 viving or continuing trustee it may be reasonably urged, that he should 
 have some share in the nomination of one, who is to be his coadjutor in 
 the trust ; while on the other hand it does not seem quite right to enable 
 him to fill the trust with his own nominees, as by so doing one of the ob- 
 jects of having a plurality of persons in the trust, namely, that one 
 should be a check upon the other, may be defeated ; since the continuing 
 trustee, if he were dishonestly disposed, would select for his coadju- 
 tor one, who would further his designs. Perhaps the best mode of 
 meeting the difficulty is to give the power to both the retiring and 
 continuing trustees, or such of them as shall think proper to exercise 
 it ; but this is a less eligible plan, when the power relates to land, 
 than when it affects personalty only ; because in deducing the title 
 through the newly appointed trustees, it would be necessary to prove, 
 that all the non-concurring trustees, who had the option of joining in 
 the nomination, had declined to do so. These observations too are of 
 less force, where no principal sum is placed at the disposal of the trus- 
 tees ; and the consequence therefore of any malversation would be so 
 
 (e)"Meinertzhagen v. Davis, 1 Coll. Ch. R. 353; [and the remarks in Stones v. 
 Rowton, 17 Jur. 750. See 2 Strobh. Eq. 89.] 
 
260 THE CREATION OF TRUSTEES 
 
 inconsiderable, and so certain of detection, as to render any attempt 
 of the kind extremely improbable. In such cases the principal object 
 is to provide for every possible event which can create a vacancy.(r) 
 
 According to the general rules that govern the laws affecting pow- 
 ers, a power of appointing new trustees can be exercised only by 
 those persons to whom it is expressly given.' Therefore, if the power 
 be given to particular persons hy name, without adding any words of 
 survivorship, the power will be gone upon the death of one of the par- 
 ties named.(s) If, *however, it be given to three or more 
 L -1 generally, as a class of persons : as to " my trustees," "my 
 sons," &c., and not by their proper names, the authority will survive, 
 while the plural number remain8:(i) and where " executors" are the 
 donees of a power, it may be exercised by a single surviving 
 executor, (m) 
 
 In like manner the power cannot be exercised by the heirs, or per- 
 sonal representatives, or assigns, of any trustee, unless the authority 
 be thus limited by the terms of the original power.(a;) And in these 
 cases the power will be confined strictly to those persons who answer 
 
 (r) 6 Jarm. Bythew. Convey. 506, 7. (tt) 1 Sugd. Pow. 244, 6th edit. 
 
 Is) Co. Litt. 113, a.; 1 Sugd. Pow. (x) 1 Sugd. Pow. 145, &c.; Bradford 
 
 141, 6th ed.; Easier v. Hudson, 9, 11, v. Belfield, 2 Sim. 264; see Eaton v. 
 
 16. Smith, 2 Beav. 236. [Post, 283,] 
 
 (<) 1 Sugd. Pow. 144; Gartland v. 
 Mayott, 2 Vern. 105. 
 
 'A setdement contained a proviso that in case either of the trustees should die 
 or become unwilling to act, the acting trustees or trustee, or the executors or ad- 
 ministrators of any surviving trustee, might nominate a fit person or persons in his 
 or their places. On the death of one trustee, the survivor executed a deed by 
 which, after reciting that he was desirous of retiring from the trust, and that he had 
 appointed another person to be a trustee in his place, he conveyed the estate to a 
 new trustee on the trusts. It was held that the surviving trustee had power to no- 
 minate a new trustee to act in his place, and that the appointment by recital was 
 good. Miller v. Pridden, 1 1 Eng. L. & Eq. 74. But in Stones v. Rowton, 17 Jurist, 
 750, a different conclusion was arrived at. There- the settlement appointed two 
 trustees, and provided " that if the said trustees, or either of them, should die 
 or become desirous of being discharged, or refuse or become incapable to act, the 
 settlor during his life, and, after his decease, the surviving or continuing trustee or 
 trustees, or the executors or administrators of the last acting trustee, might ap- 
 point any other person or persons to be a trustee or trustees in the stead of the 
 trustee or trustees so dying or desiring to be discharged, or refusing or becoming 
 incapable to act; and upon every such appointment the trust premises should be 
 so transferred, that the same might become vested in the new trustee or trustees 
 jointly with the surviving or continuing trustee or trustees, or solely as the case 
 might require." The settlor died without appointing new trustees, and the two 
 original trustees (being desirous of being discharged from the trust) afterwards 
 appointed by the same deed two other persons to be trustees in their places. The 
 Master of the Rolls held' this not to be a valid appointment. The case of Mil- 
 ler V. Pridden was distinguished. 
 
UNDER A POWER. 261 
 
 the precise description. Therefore, a power given to a trustee, his 
 heirs, executors, or administrators, will not be well executed by a de- 
 visee,{y) or an assigneeiz) of the trustees.^ However, it has been 
 already stated that a power for a " surviving " trustee to appoint 
 will b^ well executed by a continuing or " sole acting" trustee. (a) 
 
 Upon the same principle it would seem to be clear, that where the 
 power is given to be exercised by the surviving trustees, when they 
 are reduced to a certain specified number, it cannot be exercised by any 
 less number of survivors, and is therefore gone, unless it be exercised 
 before the trustees are reduced to a fewer number than that required 
 for its exercise. (6) 
 
 However, on the other hand, it has been decided, that the power 
 may be well exercised in such a case, lefore the trustees are 
 reduced to the specified number. In one case, a deed of convey- 
 ance of a chapel to twenty-five trustees contained a clause directing 
 that when by death or otherwise the number should be reduced 
 to fifteen, then the remaining fifteen trustees or the majority 
 should proceed to make up the complement to twenty-five. When 
 the number was reduced to seventeen, twelve of that number (the 
 other five dissenting) elected eight new trustees, and this appoint- 
 ment was held to be within the scope of the power. Lord Chief 
 Baron Eyre observed, — that the period of the trustees being reduced 
 to fifteen was that at which they were compellable to fill up their 
 numbers, not but what they might do it sooner.{c) 
 
 A married woman may exercise the power of appointing new trus- 
 tees, as well as any other power, in the manner and to the extent, 
 prescribed by the instrument, by which the authority is created. (cZ) 
 
 (y) Cole V. Wade, 16 Ves. jun. 27 ; 1 (b) Jarm. Bylh. Conv. 512, 3d ed.; 
 
 Sugd. Pow. 148; and see Cafe v. Bent, sad vide Att.-Gen. v. Floyer, 2 Vern. 
 
 3 Hare, 245. [Ockleslon v. Heap, 1 748 ; Att.-Gen. v. Bishop of Litchfield, 
 
 De Gex & Sm. 640. See post, 283.] 5 Ves. 825; and this subject consi- 
 
 (z) Bradford v. Belfield, 2 Sim. 264. dered, post,, in ihia chapter. 
 
 (o) Sharp v. Sharpe, 2 B. & A. 405; (c) Doe d. Dupleix v. Roe, 1 Anstr. 
 
 Eaton V. Smith, 2 Beav. 236. [See 86. 
 
 ante, 184, note.] (d) 1 Sugd. Pow. 184. [Ante, 49, n. 2.] 
 
 ' A power contained in a settlement of real estate, enabled one of the parties, 
 his executors, administrators, and assigns, on a vacancy, to appoint a new 
 trustee. The party so empowered died, having by his will named three 
 executors, one of whom renounced probate ; and a vacancy in the trust occur- 
 ring, it was held that the two acting executors had power to appoint the new trus- 
 tee. Earl Glanville v. McNeile, 7 Hare, 156; 13 Jur. 252; 18 L. J. Ch. 164. 
 Where A. B. the survivor of a number of trustees, appointed C. D. his executor, 
 and bequeathed to him all property vested in him, A. B. as trustee ; it was held 
 that C. D. was not thereby created trustee, no intention to that effect being mani- 
 fested in the creation of the trust. Mortimer v. Ireland, 11 Jur. 721. 
 
262 THE CREATION OF TRUSTEES 
 
 An infant, however, cannot exercise such a power, except indeed it be 
 a simply collateral power, which is rarely, if ever, the case.(e) 
 
 The discretion of a trustee of a power to nominate new trustees 
 will not be restrained by equity, where he is acting bona fide.{fY 
 But where a suit is once instituted, and the court has assumed the 
 control or administration of the trust estate, the trustee will not in 
 general be permitted *to exercise his power by appointing 
 L -la new trustee, without the sanction of the court ; more espe- 
 cially where a considerable remuneration is attached to the office of 
 trustee. (^) 
 
 There is no doubt, said Lord Eldon, in Webb v. Lord Shaftesbury, (A) 
 of the control of the court over the discretion of the trustee upon a 
 bill filed. " It does not prevent the exercise of his discretion, but 
 takes care that it shall be duly exercised. In the ordinary case, 
 trustees, parties to the suit, will not be allowed to change the trus- 
 tees without the authority of the court." And in that case his 
 Lordship held, that if the defendant wanted to appoint a new trustee, 
 he must go before the Master, and propose a person, and therefore 
 he ought to be restrained from appointing without an application to 
 the court, (i) 
 
 In the recent case of Attorney-General v. Clack, (A) a charity was 
 to be administered by eight trustees, and when the number of trus- 
 tees was reduced to four, those four were to appoint eight others. 
 The number of trustees was reduced to four, and an information was 
 then filed to have four new trustees appointed, and to restrain the 
 four surviving trustees from appointing in the mean time. However, 
 pending that information, the' surviving trustees, without the sanction 
 of the court, appointed four new trustees. The case came before 
 Lord Langdale, M. R., who held that the appointment was neither a 
 
 (c) Hearle v. Greenbank, 1 Ves. 298 ; 1 J. & W. 251 ; vide post, Discretionary 
 
 1 Sugd. Pow. 213, 20. Powers, p. 485. 
 
 (/) 2Sugd.Pow.531,6tlied. [Hodg- (fe) Webb ■«. Lord Shaftesbury, 7 Ves. 
 
 son's Settlement, 4 Eng. L. & Eq. 182; 487, 8. 
 15 Jur. 552.] (i) Ibid. [But the master is not 
 
 (g) Millard v. Eyre, 2 Ves. jun. 94; bound to approve the persons so pro- 
 Webb V. Lord Shaftesbury, 7 Ves. 480 ; posed, though he is to have regard to 
 Att.-Gen. v. Clack, 1 Beav. 467 ; 2 Sugd. the power. Middleton v. Reay, 7 Hare, 
 
 Pow. 531, 2; and see v. Robarts, 106; 13 Jur. 116; 18 L.J. Ch. 133.] 
 
 (Jc) Att-Gen. v. Clack, 1 Beav. 467. 
 
 'It is the duty, however, of trustees to make the appointment with regard to 
 the interest of the cestuy que trusts, and generally on communication with 
 them, O'Reilly v. Alderson, 8 Hare, 101 ; Marshall v. Sladden, 7 Hare, 428, 
 14 Jur. 106; and they will not be permitted to appoint merely to continue the 
 trust property under the management of a particular solicitor, though the new 
 trustees be otherwise unobjectionable. ' Marshall v. Sladden. 
 
UNDBK A POWER. 263 
 
 contempt, nor an act altogether void, but that it imposed upon the 
 trustees the necessity of proving, by the strictest evidence, and at 
 their own expense, that what had been done was perfectly right and 
 proper ; and as this did not clearly appear to be the case, his Lord- 
 ship decreed the appointment to be set aside, and that the trustees 
 should pay personally all the extra costs occasioned by their act. 
 However, in a recent case, before V. C. Wigram, the court refused to 
 annul the appointment of new trustees made by the old ones after 
 the filing of the bill .(A) 
 
 "With regard to the manner in which powers to. appoint new trus- 
 tees must be exercised ; it need only be observed, that in the execu- 
 tion of this as well as of every other power, all the formalities prescribed 
 by the instrument creating the power, must be duly observed, both 
 with respect to the nature of the instrument, and also in its execu- 
 tion and attestation ;(Z) except, indeed, so far as the law on this, sub- 
 ject has been altered by the 10th section of the recent Will Act, 1 
 Vict. c. 26, which provides, that no appointment in exercise of a 
 power to be made by will shall be valid, unless executed as required 
 by the act ; viz. — signed by the party in the presence and attested 
 by two or more witnesses, — and that every will so executed shall be 
 a valid execution of any power, so far as respects its execution and 
 attestation.^ 
 
 Where the consent of one, or of several persons, who are named, 
 is ^required to the execution of the power, that, like every ^ 
 other condition, must be strictly complied with. And if the ^ -^ 
 person, whose consent is necessary, die without having given that 
 consent, and that event be not provided for, the power is gone.(m) 
 
 The instrument of appointment will not of itself vest the legal 
 estate in the trust property in the newly appointed trustee; for that 
 purpose it must be accompanied by a conveyance or assignment of 
 the property to the new trustee, or to him jointly with the surviving 
 
 (i) Cafe V. Bent, 3 Hare, 249 ; and will be bad, and vke versa. Ibid. Scott 
 
 see this subject considered, post, Effect v. Davis, 4 M. & Cr. 87. 
 
 of Suits. (m) 1 Sugd.Pow.334; Hallu. Dewes, 
 
 Q) See 1 Sugd. Pow. 265, &c. 6th ed. Jac. 192 ; but see Morris v. Preston, 7 
 
 Therefore, where it is required to be Ves. 547, and supra, 
 executed by wUl, an execution by deed 
 
 ' Where the trust property is personal estate, and it is not specially required, 
 the new appointment need not be in writing. Foster v. Goree, 4 Alab. 440. 
 Where the power to appoint is given to several, they must all join in the same 
 deed; a subsequent deed of confirmation by one not party to the first is not suffi- 
 cient. Crosby v. Huston, ] Texas, 203, An appointment by recital in the deed of 
 conveyance from the old to the new trustee, is sufficient, Miller v. Pridden, 11 
 Eng. L. & Eq. 74, stated ante, p. 183, ilote. 
 
264 THE CREATION OP TRUSTEES 
 
 or continuing trustees, if any.(w) Where/ the legal estate in fee 
 simple is vested in the surviving or continuing trustee, the convey- 
 ance may be by a simple deed limiting it to the use of himself and 
 the new trustees jointly.(l) 
 
 When the estate of the trustees is to preserve contingent remain- 
 ders in a settlement, it has been usually considered essential, that the 
 new trustees should have a seisin, to serve the uses, in the same man- 
 ner as the old trustees had. To raise this new seisin, two deeds are 
 necessary ; by the first, the uses of the settlement are revoked, and 
 ,the estate appointed to a stranger in fee, and the old trustees join in 
 conveying the estate to him : the stranger then reconveys (which he 
 may do by endorsement), to the uses of the settlement, in the same 
 manner as if the new trustee's name had been inserted therein.(o) 
 
 Sir E. Sugden, in his work on Powers, discountenances this cir- 
 cuitous proceeding, as creating unnecessary expense and trouble; 
 and he adds, that if it ever should become necessary to decide the 
 point, there is little doubt but that it will be determined ; — 1st, That 
 the power only meant, that the estates actually vested in the trustees 
 (to preserve contingent remainders) shall be transferred to the old 
 and new trustees, which may be done by one deed operating under 
 the Statute of Uses ; 2d, That they may then exercise the powers 
 created by the settlement ; and consequently, 3d, That there is no 
 seisin to transfer, and therefore the revocation and appointment is 
 nugatory and of no effect, (p) 
 
 Where, however, the trust property consists of leaseholds or terms 
 for years, upon which the Statute of Uses has been decided not to 
 operate, the legal estate cannot be vested jointly in the continuing 
 and newly appointed trustees by one deed, as may be done where the 
 estate is of freehold tenure ; and the usual and most convenient 
 method of effecting this object is by two deeds. By the first, the 
 existing trustees assign the property to a stranger, who by the second 
 deed, endorsed on the other, reassigns to the old and new trustees 
 jointly upon the original trusts. (g) 
 
 Where the trust property consists of money or stock, this circuitous 
 proceeding is wholly unnecessary, as the object may be equally 
 
 (n) FoUey v. Wontner, 2 Jao. & W. (p) 2 Sugd. Pow. 528, 6th ed. 
 248; see Owen v. Owen, 1 Alk. 496. (5) 6 Jarm. Byth. Conv. 524. 
 
 (0) 2 Sugd. Pow. 527, 8, 6th ed. 
 
 (1) A testator gave estates to four trustees, with powers and directions to 
 appoint a new trustee within two months after a vacancy. A deed of appoint- 
 ment of a person as a new trustee was executed, but the estate was not conveyed 
 to him : — Held, that the person was not appointed a trustee, but that the old trus- 
 tees could alone execute a power of sale. Warburton v. Sandys, 9 Jur. 441, 503 ; 
 14 Sim. 622. A power to appoint by any deed or writing is well executed by a 
 duplicate instrument. (Jhid.) 
 
UNDER A POWER. 265 
 
 secured by one deed, containing a covenant on the part of the old 
 trustees to *transfer into the joint names of themselves and 
 the new trustees, upon the trusts of the original settlement. (r) '- J 
 Or what is better, the transfer may be made first ; and a deed, de- 
 claring the trusts of the transfer, executed by the old and new 
 trustees. 
 
 If a single trustee only be required for the management of the 
 trust estate, upon the appointment of a new trustee, a simple con- 
 veyance or assignment from the old to the new trustee is all that is 
 requisite to vest the legal estate in the latter, whether the property 
 be freehold or leasehold. 
 
 It is not in general imperative upon the donees of a power of ap- 
 pointing new trustees to exercise it, upon the occurrence of every 
 vacancy, but the old trustees may continue to act notwithstanding 
 the diminution of their number by death : and even where all the 
 original trustees have died without exercising the power, the heir of 
 the survivor will not be restrained from acting.(s) 
 
 Where it had been enacted by an act of parliament, enabling five 
 trustees to dispose of certain houses by lottery, that if any of the 
 trustees should die before the drawing of the lotteries, and the con- 
 veyance of the prizes, the survivors or survivor should and were 
 thereby required to appoint a new trustee or trustees, it was ob- 
 jected to the validity of a conveyance by the four surviving trustees 
 after the death of the fifth, that it was imperative on the survivors to 
 fill up the vacancy in the trust, before they could execute a convey- 
 ance. But the court was of opinion that the clause was directory 
 only, and that the conveyance clearly operated to pass the legal 
 estate, and the objection was therefore overruled.(i) So in Attor- 
 ney-General V. Floyer,(M) the devise was to six trustees and their 
 heirs, and the testator directed that when the numher was reduced 
 to three they should choose others. All the trustees died but one ; 
 and the sole survivor appointed other trustees and conveyed the pro- 
 perty to them. And it was held, to be only directory on the trus- 
 tees to fill up the number, and that the appointment by the survivor 
 was valid. And the case of Attorney-General v. Litchfield, (a;) is to 
 the same efi'ect.(l) 
 
 (r) 6 Jarm. Byth. Conv. 527, n., 3d (t) Doe d. Read v. Godwin, 1 Dowl. 
 
 ed. & Ry. 259 ; and see Attorney-General 
 
 (s) Attorney-General v. Bishop of v. Cuming, 2 N. C. C. 139. 
 Litchfield, 5 Ves. 825; and see Attor- (u) 2 Vern. 748. 
 ney-General v. Floyer, 2 Vern. 749. {x) 5 Ves. 825. 
 [See Foster v. Goree, 4 Alab. 440.] 
 
 (1) Power to appoint new trustees reserved in a will "to the survivor of A., 
 B., and C, the trustees named in the will, and such new trustee or trustees to be 
 nominated in his or their stead" as thereinafter- mentioned; — Held, properly ex- 
 
266 THE CREATION OE TRUSTEES 
 
 However the terms of the power may unquestionably make it im- 
 perative on the trustees to appoint others either on every vacancy, 
 or when they are reduced to a certain number.(2/) 
 
 These questions have usually arisen on charitable trusts. 
 r*i8sn *There is no doubt, that where the donees of the power 
 '- -I neglect to exercise it on the occurrence of any vacancy, 
 equity under a proper application will interpose and itself make the 
 appointment.(2) Although this will only be done, where the number 
 of trustees is so reduced, as to render a new appointment actually 
 necessary,(a) as where the number is lessened to one-third. (6) 
 
 A trustee, who has been duly appointed under a power, and in 
 whom the legal estate in the trust property has been vested by a 
 proper conveyance or assignment, stands precisely in the same situa- 
 tion, and is invested with the same powers and privileges with re- 
 ference to the trust estate, as if he had been originally appointed a 
 trustee ;(c) with the exception indeed of discretionary powers per- 
 sonally given to the original trustees, (ci) 
 
 It is almost unnecessary to observe, that a conveyance or assign- 
 ment of trust property to a new trustee, duly executed by the trus- 
 tees or other persons, in whom the legal estate is vested, will ope- 
 rate to transfer the legal interest to the party taking under such an 
 instrument, although it may not be authorized by any power, (e) But, 
 as we have already seen, such a transaction will not have the effect 
 of discharging the original trustees from the responsibilities or duties 
 of the trust ; indeed so far from it, it will of itself amount to a breach 
 of trust. (/) 
 
 (3/) Doe V. Roe, 1 Anst. 86; Foley v. (c) Vide supra. 
 
 Wontner, 2 J. & W. 245. (d) Cole v. Wade, 16 Ves. 27; 1 
 
 (s) See next chapter, Att.-Gen. v. Sugd. Pow. 148; post, Pt. III. Div. I. 
 
 Bishop of Litchfield, 5 Ves. 83 1. [See Chap. II. s. 3, 
 
 Hodgson's Settlement, 4 Eng. L. & £q. (e) Doe v. Godwin, 1 D. & R. 259 ; 
 
 182.] White v. Parker, 1 Scott, 542; 6 Jam. 
 
 (a) Re Marlborough School, 13 Law. Byth. Conv. 508, n. 
 
 Jour. N. S. Chanc. 2 [7 Jur. 1047] ; Re (/) Vide supra. 
 Faversham Charities, stated supra. 
 
 (6) Re Warwick Charities, MS., 22 
 Nov. 1844, L. C. 
 
 ercised by C; B. having died, and A. having renounced the trusts of the will. 
 (Cafe V. Bent, 9 Jur. 653 ; 5 Hare, 34.) " The only question is, whether the 
 fact that the trustees are named in the introductory clause of the power makes 
 any difference, — whether, by naming them, the testator must be presumed to 
 have meant something different with regard to those named to what he meant 
 with regard to trustees to be appointed afterwards. I think that the cases which 
 have been referred to justify me in holding that the trustees are so named not 
 for the purpose of founding any distinction between them and after appointed 
 trustees, but only because they happened to be the trustees for the time." (The 
 Vice Ch. (Wigram) Ibid.) 
 
UNDER A POWER. 267 
 
 However where the whole beneficial interest in the trust estate ia 
 absolutely vested in an individual, or in several individuals who are 
 competent to dispose of it, the parties beneficially entitled are of 
 course able to appoint a new trustee without any express power for 
 that purpose ; and the old trustee in such a case upon the requisi- 
 tion of the cestui que trust is bound to transfer the legal estate to 
 the newly appointed trustee. (</) 
 
 It may be observed, that although a trustee may have declined, or 
 deserted the trust, or otherwise so acted, as to bring himself ex- 
 pressly within the terms of the power for appointing another in his 
 place, he is not discharged from the trust, until that appointment 
 has been duly made : until then therefore he still continues to be a 
 trustee, and may resume the discharge of his duties as such.(^) 
 
 Where the settlement is governed by the English law, and the 
 parties are English, it would be a very hazardous exercise of a power, 
 to appoint foreigners, or persons resident abroad, to be the new 
 trustees ; and though the point has never been actually decided, 
 there can be but little doubt, that such an appointment would be set 
 aside, (ly 
 
 But if the parties or either of them be foreigners, the appointment 
 of their countrymen to be new trustees, although also foreigners and 
 out of the jurisdiction, will be supported.(^) 
 
 It may be added, that the appointment of one of the cestuis que 
 
 [*189] 
 
 trusts as *a trustee is clearly improper, for a trustee ought 
 to be disinterested for the benefit of all parties. 
 
 The expense of an appointment of new trustees, where necessary 
 and proper, must unquestionably be borne out of the corpus of the 
 trust estate, in the absence of any direction to the contrary in the 
 trust instrument; and the interest of the cestui que trust for life is 
 not primarily chargeable with this expense ; although his misconduct, 
 in occasioning the necessity of the new appointment, may sometimes 
 be a reason for making him bear the costs. (Z) 
 
 It is to be observed, that where there has been an invalid appoint- 
 ment of a trustee under a power, it will be a very serious question 
 
 is) Angler v. Sfannard, 3 M. & K. the remarks in Ex parte Roberts, 2 
 
 566. Strob. Eq. 88.] 
 
 Qi) Attorney-General v. Pearson, 3 {k) Ibid. 
 Mer. 412. (;) gee Coventry!). Coventry, 1 Keen, 
 
 (i) Meinertzhagen v. Davis, 8 Jur. 758. 
 973; S. C. 1 Coll. N. C. C. 353. [See 
 
 ' A povi^er to appoint a new trustee, on an existing one becoming incapable to 
 act, was ruled, in Withington v. Withington, 16 Sim. 104, not to apply to the 
 case of a trustee going to reside abroad ; and in O'Reilly v. Alderson, 8 Hare, 
 101, it was said that permanent residence abroad, does not, ipso facto, deprive 
 the trustee of his office. 
 
268 THE SUBSTITUTION OF TRUSTEES 
 
 whether any subsequent appointment could, in any case, be sustained, 
 even though otherwise regular and proper. At all events it seems 
 clear, that if the title of the subsequently appointed trustee is impli- 
 cated in the validity of the previous vicious appointment, it cannot 
 be supported ; as, for instance, where the subsequent appointment is 
 in place of that trustee irregularly appointed, or still more strongly 
 if it be made by that trustee, or if the new trustee be expressed to be 
 appointed to act with the irregularly appointed trustee.(ra)^ 
 
 [*190] ^CHAPTER II. 
 
 THE SUBSTITUTION OE TKUSTEES BY THE COURT OF 
 CHANCERY. 
 
 I. — In what Cases the Court III. — Whom it will Appoint, and 
 WILL ACT [190]. theEpfectoftheAppoint- 
 
 II. — How THE Court acts [194]. ment [210]. 
 
 I.— IN WHAT CASES THE COURT WILL ACT. 
 
 Wherever circumstances render it necessary or desirable, to 
 appoint new trustees, the Court of Chancery in exercise of its inherent 
 jurisdiction will interpose upon a proper application, and make the 
 appoiptment.(a)^ 
 
 (m) See Adams j). Paynter. 14 Law (a)2Sugd. Pow. 532,6thed.; [Cham- 
 Journ. N. S., Chanc. 54' [I'CoU. Ch. bers v. Maudlin, 4 Alab. 477.] 
 532; Crosby v. Huston, ante, 185, n.] 
 
 ' A power to appoint new trustees is not exhausted by once being exercised; 
 and, therefore, if the new trustee fails to accept, the donee of the power may 
 appoint anew. Foster v. Goree, 4 Alab. 440. 
 
 ^ In Pennsylvania it has been held that where the lands lie there, a court of 
 another state cannot appoint a new trustee in place of one appointed in Penn- 
 sylvania. Williams v. Maus, 6 Watts, 473. See ante, 44, note. 
 
 Upon the subject of this chapter, special provisions will be found in the 
 legislation of the different states. The following summary is believed to furnish 
 the principal regulations with reference thereto. 
 
 Pennsylvania. — There having been at first no Court of Chancery in Pennsyl- 
 vania, the execution of trusts was left very much to the voluntary action of the par- 
 ties. See Shaw v. Cameron, 1 1 S. & R. 252 ; Moody v. Fulmer, stated in Wh. Dig., 
 Trustees, pi. 244; 6th ed. In 1825, an Act was passed (Dunlop, 392) by which 
 jurisdiction was given to the Supreme Court in all cases of trust, so far as regarded 
 the appointment and discharge of trustees; and the cases for the exercise of these 
 powers were specified. This Act, with some additions, by a subsequent statute 
 passed in 1828 (Dunlop, 420), was extended to the District Courts and Common 
 
BY THE COURT OF CHANCERY. 269 
 
 This jurisdiction exists, and will be equally enforced, whether the 
 instrument creating the trust does or does not contain a power to 
 
 Pleas of the state. By the general Act with regard to the organization of courts 
 of 1836, extensive chancery powers are given to the Supreme Court and Courts 
 of Common Pleas, especially in the county of Philadelphia ; and by the Assignees' 
 and Trustees' Act of the same year (Dunlop, 689), sect. 15, the Courts of Common 
 Pleas are given jurisdiction of cases of trusts express or implied, arising on deed 
 otwill: except as to trusts created by will and vested in executors or adminis- 
 trators, either by express words or operation of law, over whom the Orphans' 
 Court has jurisdiction : (and, indeed, as to all trusts given to executors nominatim 
 OT virtute officii, the Orphans' Court has concurrent jurisdiction. Browne's Appeal, 
 12 Penn. St. R. 333.) The powers of the District Courts, under the Act of 
 1828, were expressly reserved. By sect. 16, a trustee wasting, neglecting, or 
 mismanaging (what this is, see Chew's Estate, 2 Pars. 153), the trust estate or 
 fund, or in failing circumstances, may be cited to show cause why he should 
 not be dismissed, on application of any person interested (which does not com- 
 prehend the next of kin of a living cestui que trust, though the latter is of weak 
 intellect, Kuhler v. Hoover, 4 Barr, 331), and the court may thereupon order 
 security or dismiss. By sect. 18, in cases of infancy or temporary absence, a trustee 
 ad interim may be appointed, with the same powers as the one for whom he is 
 substituted. The foregoing sections are not applicable to assignments for the 
 benefit of creditors which are specially provided for by the same act. The 
 general provisions applicable to all assignees and trustees are as follows. Sect. 
 20. Where a trustee, &c., has been duly declared a lunatic or habitual drunkard 
 (an inquisition of lunacy, &c., is not, ipso facto, a removal. Sill v. McKnight, 7 
 W. & S. 244), or has removed from the state, or ceased to have a place of resi- 
 dence therein, for a year or more, the court may on due proof dismiss him, and 
 appoint another. Sect. 21. Where a trustee, &c., is dismissed or discharged, the 
 court may make an order for transfer of books and papers, &c. Sect. 22. A trustee, 
 &c., may be discharged on his own application by bill or petition, setting forth 
 , such facts as would entitle him to relief in equity ; — provided that his accounts 
 have been setded, that notice has been given as required by the Act, and that 
 he has surrendered trust estate to trustee appointed, and done all other things 
 necessary in equity. By sect. 23, the court may appoint new trustees where a 
 sole assignee or trustee shall renounce (that is, before acceptance, Read v. 
 Robinson, 6 W. & S. 329), or refuse to act under, or fully to execute the trust, 
 &c., or dies (this does not apply to trusts annexed to the office of executor, 4 W. 
 & S. 492; or to a passive trust, where the deceased trustee was merely the 
 depository of the legal title, Carlisle's Appeal, 9 Watts, 332), or is dismissed 
 or discharged, or where one of several trustees, &c., renounces, refuses, dies, 
 or is dismissed or discharged, and the duties of the trust require a joint act • 
 and also where no trustee is appointed by name or description. By the Act 
 of 1846 (Dunlop, 960), the Orphans' Court of proper county, in all cases 
 of trusts created by will, may appoint new trustees, upon the death, resigna- 
 tion, or removal, of the old trustees and may dismiss or discharge in cases 
 falling under the 23d section of Act of 1836; and by the Act of 1849 (Dunlop, 
 1053), in all cases of trusts cxeated by wills admitted to probate in the city and 
 county of Philadelphia, to be executed by any executor or executors, by virtue of 
 their office or otherwise, and any of the executors shall die, renounce, resign, be 
 dismissed, or refuse to act in the trust, leaving the others continuing therein, the 
 Orphans' Court, on the application of any party in interest, and with the consent of 
 the continuing executors, and on notice, may appoint a trustee or trustees in his 
 place. Sect. 24 (of Act of 1836). This powerof appointment, &c., may be exercised 
 
270 THE SUBSTITUTION OF TRUSTEES 
 
 appoint new trustees. (6) And we have seen in the last chapter, that 
 the court, when once put in possession of a case by the filing of a bill, 
 
 (6) Webb V. Earl of Shaftesbury, 7 re Foxhall, 2 Ph. 281 ; Suarez v. Pam- 
 Ves. 480; Re Fauntleroy, 10 Sim. 252; pelly, 2 Sandf. Ch. 336.] 
 Finlay D. Howard, 2 Dr. & W. 490. [In 
 
 on application by bill or petition of any person interested, &c., and not otherwise, 
 and on due notice. Sect. 25. The trustees thus appointed are to have the same 
 powers and authorities in relation to the trust, and be subject in the same manner 
 to the control of the court, as the old trustees; and (sect. 26), on the appoint- 
 ment, and on giving security when so required, all trust estate and effects shall 
 vest at once in the trustees, &c. When the trustee is appointed by the original 
 instrument, security is not a prerequisite to the vesting of the estate. Johnson's 
 Appeal, 9 Barr, 416; Dallam v. Fitler, 6 W. & S. 326. In the counties of Phila- 
 delphia and Lancaster, by Acts of 3d of March, 1847 (Dunlop, 971), and 1849, 
 § 9 (Dunlop, 1055, where the Act of 1847 is mis-cited), where a trust created 
 by will is to be executed by the executors, they may renounce, without affecting 
 their office or trust as executor generally, or any other trust in the will. In the 
 case of a married woman possessed of a separate estate under the Act of 1848, 
 by the Act of 1850 she may apply to the Common Pleas of the proper county, 
 for the appointment of a trustee, other than her husband. An Act of 1838 (Dun- 
 lop, 763) provides that, where trustees reside out of the state, and any part of the 
 trust property or fund is situate in Pennsylvania, the court may appoint one or 
 more resident trustees to act in conjunction with the foreign trustees. In the 
 Supreme Court, proceedings to compel a trustee to pay over money, or to remove 
 him, must be by bill. Ex parte Hussey, 2 Whart. 350. 
 
 With regard to the jurisdiction of the Orphans' Court in cases of testamentary 
 trusts, vested in executors virtute officii or otherwise, see the general Act of 1834. 
 and its supplements; the Acts of 1846 and 1849, above cited; and Brown's 
 Appeal, 12 Penn. St. R. 333; and Webb v. Dietrich, 7 W. & S. 401, where it 
 was held that a purchase by executor at his own sale, in the absence of actual 
 fraud, was no ground for removal. 
 
 New York.— By the Revised Statutes (3d ed.), part ii. ch. 1, art. ii. § 45, 
 passive trusts are abolished, the legal estate vesting at once in the cestui que trust, 
 and therefore in such case no question can arise on the appointment or removal 
 of trustees. See In matter of Craig, 1 Barb. S. C. 33. Prior active or future 
 express trusts still subsist ; the latter are to sell for creditors, to sell mortgage or 
 lease for legatees, or to satisfy charges on the land; to receive rents and profits 
 of land, and apply them to the use of any person during his life, or for a shorter 
 term ; or to accumulate rents and profits, within the limits prescribed. In other 
 cases of express trusts, no estate vests in trusts ; but if the trust can be exercised 
 as a power, it is valid as a power in trust ; and as to resulting trusts, see ante, p. 
 91. With reference to the appointment, &c., of trustees, the following provisions 
 are enacted: — Sect. 68. Where a sole surviving trustee dies (see 5 Paige, 559), 
 the trust estate (whether personal or real, Hawley v. Ross, 7 Paige, 103) does 
 not descend to the heirs or representatives, but vests in the court, to be executed 
 by some person to be appointed under its direction. See King v. Donnelly, 5 
 Paige, 46 ; Matter of Vonschoonhoven, 5 Paige, 559 ; Bulkley v. De Peyster, 26 
 Wend. 21; McCosker v. Brady, 1 Barb. Ch. 329; 1 Comst. 214. Where the 
 trust has thus devolved on the Court of Chancery, the parties interested may 
 apply for a receiver, to act until a new trustee is appointed. McCosker v. 
 Brady, 1 Barb. Ch. 329. Sect. 69. On the petition of any trustee, the court may 
 
BY THE COURT OF CHANCERY. 271 
 
 ■will not suffer any fresh appointment of trustees to be made except 
 under its sanction and control. (c) 
 
 (c) Millard v. Eyre, 2 Ves. jun. 94; v. Robarts, 1 J. & W. 251 ; Att.- 
 
 Webb V. Ld. Shaftesbury, 7 Ves. 480; Gen. v. Clack, 1 Beav. 467. 
 
 accept his resignation, and discharge him from the trust, under such regulations 
 as may be established by the court, and on such terms as the rights and interests 
 of the parties may require. See Matter of Vonsohoonhoven, 5 Paige, 559; 
 Cruger v. HoUiday, 11 Paige, 314; Craig v. Craig, 3 Barb. Ch. 76, sect. 70. 
 Upon petition or bill of any person interested, the court may remove any trustee 
 ■who shall have violated or threatened to violsite his trust, or who shall be insol- 
 vent, or whose insolvency shall be apprehended, or who -from any other cause 
 shall be deemed an unsuitable person to execute the trust. See Matter of The 
 Mech. Bank, 2 Barb. Ch. 446 ; and, as to lunatic trustee, Matter of Wadsworth, 2 
 Barb. Ch. 381, sect. 71. The court has full power to appoint a new trustee in 
 place of one resigned or removed; and where there is no acting trustee from 
 such cause, the court may appoint or cause the trust to be executed by one of its 
 officers under its direction. Sect. 72. These three last sections apply only to 
 express trusts. Independently of these statutory provisions, the court has no 
 power upon a mere petition to discharge a trustee, or to accept his resignation, 
 and appoint another in his place, without the consent of all persons who are, or 
 on a future contingency may be interested in the execution of the trust. The 
 usual course of proceeding is by bill. Matter of Van Wyck, 1 Barb. Ch. 565. 
 
 To these powers of appointment and removal under the Revised Statutes the 
 Supreme Court has now succeeded, under the new code. Vandervolgen v. Yates, 
 3 Barb. Ch. 242. 
 
 Massachusetts. — By the Revised Statutes of 1836, p. ii., tit. iv., ch. 69, § 1, 
 testamentary trustees are obliged to give bond before judge of probate (sect. 2), 
 unless testator otherwise directs, or parties consent ; and (sect. 4), if they neglect 
 to give bond when required, they are to be deemed to have declined the trust. 
 See Dorr v. Wainright, 13 Pick. 328. Every such trustee (sect. 5) may upon 
 his own request be allowed to resign his trust, when it shall appear to judge of 
 probate proper. Sect. 6. An executor or administrator of former trustee cannot 
 be required to accept the trust against his will. Sect. 7. The judge of probate 
 may, on notice to trustee and those interested, remove a trustee who has become 
 insane, or otherwise incapable of discharging his trust, or evidently unsuited 
 therefor. Sect. 8. Where a trustee declines or resigns trust, or dies, if no provision 
 be made for supplying the deficiency iu the will, the judge of probate shall, after 
 notice (4 Metcalf, 330), appoint a new trustee, to act alone, or jointly with the 
 others, asthe case may be. See 3 Mete. 332; 12 Pick. 445. Every new trustee 
 has and may exercise the same power, rights, and duties, whether as sole or 
 joint trustee, as if originally appointed by testator; trust estate vests in him as it 
 would have done in old trustee; and judge of probate may, moreover, order 
 such conveyances by former Iru.stee or representative as may be proper or con- 
 venient. Sect. 9. Every new trustee is to give bond as before. 
 
 New Jerset. — By Rev. Stat. 1847, tit. vii. ch. 5, ^ 13. Where a trustee, 
 appointed by last will or testament, other than executor, shall neglect or refuse 
 to act, or die before completion of the trust, the Orphans' Court is authorized to 
 appoint some suitable person or persons to execute the trust, with security, who 
 is or are to have and possess all the power of former trustee. 
 
 Vermont. — By Rev. Statutes 1839, tit. xii.ch. 55, § 1, &c., trustees appointed 
 by will to give bond, unless it is otherwise directed, and (sect. 4), on refusal to do so, 
 
272 THE SUBS'TITUTION OP TRUSTEES 
 
 No person interested could be advised to rest satisfied with the 
 appointment of a new trustee under a power, unless the terms of the 
 
 are to be regarded as declining. Sect. 5. Any trustee may decline or resign when 
 the Probate Court shall judge properto allowit. Sect. 6. When any trustee becomes 
 insane, or otherwise incapable of discharging his trust, or obviously unsuitable, 
 Probate Court may remove on notice. Sect. 7. Where trustee declines, or resigns 
 his trust, or dies, or is removed before the object for which he was appointed is 
 accomplished, and no adequate provision made by will to supply vacancy. Pro- 
 bate Court, after notice, may appoint new trustee to act alone or jointly. Sect. 8. 
 New trustee to have and exercise same powers, &c., as if originally appointed; 
 and trust estate vests, &c., in him, as it did, or would have done, in old trustee; 
 and court may order- such conveyances by old trustee or representatives as may 
 be necessary and proper. 
 
 Alabama. — By Act of 1829 (Clay's Dig. 588). Sect. 1. A trustee may be re- 
 moved by the Circuit Court of the county where such trustee resides, or of the 
 county where the estate shall be, on notice, to be directed by the court. Sect. 2. 
 Trustee may resign on rendering full account of estate and management thereof; on 
 notice, &c. Sect. 3. On resignation or removal, court may appoint another trustee. 
 Sect. 4. Remedy is given against trustee wasting, or about to waste. Sect. 5. Trus- 
 tees to render an account once a year, and on failure, may be removed. By Act 
 of 1843 (Clay's Dig. 350), where trustee dies, the Register in Chancery may, on 
 application of any person interested, and notice, appoint one or more trustees in 
 place of the deceased trustee. This power, given by statute, does not affect the 
 general powers of the' Court of Chancery over the removal of trustees, &c. 
 Drane v. Gunter, 19 Alab. 731. 
 
 Maine ; New Hampshire. — The provisions of the Rev. Statutes of Maine, 1846, 
 tit. V. oh. 70, sect. 28, H ; and Rev. Stat. N. H., 1842, tit. xix. ch. 168, are similar 
 to those of Vermont, so far as regards the appointment or removal of testamentary 
 trustees. An executor who is also trustee, remains such till on neglect to give 
 bond, he is declared by probate judge to have declined the trust. Groton v. 
 Ruggles, 17 Maine, 137. 
 
 Virginia. — By Rev. Code, 1849, p. 675, it is provided, thfit the personal repre- 
 sentative of a sole or surviving trustee shall execute the trust, or so much thereof 
 as remained unexecuted at the death of such trustee, whether the subject be real 
 or personal estate, unless the instrument creating the trust otherwise directs, or 
 another trustee is appointed for the purpose, by a Court of Chancery having juns- 
 diction. See Hughes v. Caldwell, 11 Leigh, 342. See other provisions as to 
 "Fiduciaries" in general, page 546. Where the cestuy que trusts of penonahy 
 are non-residents, the fund may be transferred on bill or petition to a trustee ap- 
 pointed by a court of record in the proper state, which when dojie will be a dis- 
 charge pro tanto to the resident trustee. Page, 539, 40. 
 
 South Carolina. — The Act of 7 Anne, ch. 19, enabling infant trustees and 
 mortgagees, to convey or assign, and giving power to the court to compel them 
 so to do, as though of age, is in force (2 Coop. Stat. 547) ; and by an Act passed 
 in 1796 (5 Coop. Stat. 277), in every case of a trust estate where the person 
 entitled to the use of any property or estate vested in trustees, being of age, or 
 his guardian, if under age, is willing to have other trustees substituted in the room 
 of those in whom the legal estate is vested, or to have any one or more trustees 
 substituted in the room of any one or more of the first or former trustees, the 
 Courtof Equity is authorized to permit such one or moreof the first or former trus- 
 tees to surrender his or their trust (by petition or consent endorsed in the petition 
 of another, 4 Strob. Eq. 80), and to appoint such one or more trustees in his or 
 their room (if a foreigner, security to be given, 2 Strob. Eq. 88), as may appear 
 
BY THE COURT OF CHANCERY. 273 
 
 power clearly and distinctly authorize the appointment in the par- 
 ticular event which may have occurred ; if there be the slightest 
 doubt as to the validity, or the application of the power to the case 
 in question, the appointment, for the security of all parties, should be 
 made only under the sanction of the court.(c^ 
 
 It seems, that the circumstances and nature of the trust property — 
 as where the administration of a charity is in question — will justify 
 an application to the court for the appointment of new trustees, in the 
 first instance, notwithstanding the existence of a power in the trust 
 instrument to make such an appointment ; and this, though no re- 
 quest may have been made to the existing trustees to exercise the 
 power, and no charge of misconduct is made against them by the 
 bill.(e) But in general it would be improper to burden the estate 
 with the expense of a suit, unless that course were rendered neces- 
 sary by the refusal of the donees of the power to make the appoint- 
 ment, or by some misconduct on the part of the existing trustees ;(/) 
 and although the court might grant the relief prayed, it would decree 
 the plaintiffs to pay the costs of the suit.(^) 
 
 *Where vacancies in the trust have been occasioned by the r^-iq-i-i 
 death of any existing trustee,(A) (1) ov by his having gone 
 
 (d)SeeMillard«. Eyre, 2Ves,jun. 94. (ft) Hibbard v. Lanjbe, Ambl. 309; 
 
 (e) Att.-Gen. v. Clack, 1 Beav. 470, 1. Hewitt v. Hewitt, Ambl. 508 ; Att.-Gen. 
 
 (/) Finlay v. Howard, 2 Dr. & W. v. Clack, 1 Beav. 467 : Drayson v. Po- 
 
 490. [See In re Lloyd, 3 J. & Lat. 255.] cock, 4 Sim. 283 ; Finlay v. Howard, 2 
 
 (g-) Finlay v. Howard, ubi supra. Dr. & W. 490; Devey u. Pace, Taml. 77. 
 [Matter of Jones, 4 Sandf. Ch. 616.] 
 
 (1) But where there were twelve trustees of a charity, and two of them died, 
 the court held that there was no sufficient reason for an application for the ap- 
 pointment of two new trustees in their place at the expense of the charity. Re 
 Marlborough School, 13 Law Journ. N. S., Chan. 2, 7 Jur. 1047. And in a very 
 recent case before Lord Lyndhurst, his Lordship expressed an opinion to the 
 same effect. Re Faversham Charities, L. C. 15th November, 1844, MS. 
 
 proper and advisable ; and the trustees so appointed and substituted shall then 
 be considered, to all intents and purposes, as vested completely and absolutely 
 with all the estate, &c., and liable to all the conditions, &c., as the old trustees: 
 provided, that a certificate of such appointment be endorsed on the original deed 
 or will, and also recorded therewith. In McNish v. Guerard, 4 Strob. Eq. 66, 
 it was decided, under this act, that a conveyance from the original trustees to 
 their successors was not necessary, the practice being to make the transfer by 
 order of the court. But the substituted trustee, nevertheless, cannot sue in his 
 own name at law on a judgment obtained by the old trustee. Davant v. Guerard, 
 1 Spear's Law, 242. See IngersoU v. Cooper, 5 Blackford, 439. All parties inte- 
 rested must be made parties; Ex parte Tunno, 1 Bail. Eq. 395. The act does 
 not apply to executors; Ex parte Galluchal, 1 Hill, Eq. 148; who cannot be dis- 
 charged from their office. Hargood v. Wells, Id. 59. 
 
 See further, Michigan.— Rev. Stat. 300, 301 ; Tennessee. — Act of 1831, Carr. 
 &Nich. 693; Ohio.— Rev. Stat. 1841, 1001; Wisconsin.— Rev. St. 1849, ch. 57, 
 the provisions of which are copied from the New York Act. 
 
274 THE SUBSTITUTION OP TRUSTEES 
 
 abroad and released,(i) or by no person being able to be found, an- 
 swering to the description of the trustee in the instrument creating 
 the trust,(A) the court acting on the principles above stated will on 
 a proper application appoint new trustees to supply those vacancies. 
 
 And in like manner where the circumstances or conduct of any 
 existing trustee render it inexpedient for him to continue in the office, 
 the court will adapt its relief to the exigencies of the case, and having 
 first decreed the removal of the trustee, will then proceed to supply 
 the vacancy by appointing another person to act in the trust, and by 
 directing the conveyance or transfer of the trust property to him. 
 
 Thus this relief has been decreed, where the original trustee or 
 trustees declined to act •,[l) or were desirous of being discharged ;(m) 
 or had absconded ;(w) or were incapable of acting through age and 
 infirmity ;(o) or could not discharge the trust through disagreement 
 amongst themselves ;(p) or had been guilty of breaches of trust ;(j) 
 or become bankrupt. (r)^ 
 
 (i) Buchanan v. Hamilton, 5 Ves. 722. (o) Bennett v. Honeywood, Ambl. 
 
 Ik) Att.-Gen. v. Stephens, 3 M. & K. 710. 
 
 347. (p) Bagot v. Bagot, 10 Law Journ. 
 
 (Z) Miles V. Neave, 1 Cox, 159; N. S. Chanc. 116; see Uvedale v. Pat- 
 
 V. Robarts, 1 J. & W. 251. [In re Rus- rick, 2 Ch. Cas. 20. 
 
 sell's Trust, 1 Engl. L. & Eq. 225, a (g) Mayor of Coventry «. Att.-Gen. 7 
 
 trustee may, however, decline except iov Bro. P. C. 235; Ex parte Greenhouse, 1 
 
 the purpose of appointing new trustees. Mad. 92 ; Att.-Gen. v. Shore, 7 Sim. 290, 
 
 Hadley's Trust, 9 Engl. L. & Eq. 67.] 309, n.; Att.-Gen. u. Drumraond, 1 Dr. 
 
 (m) Howard v. Rhodes, 1 Keen, 581 ; & W. 353; 3 id. 162. 
 
 Coventry v. Coventry, id. 758; Hamil- (r) Bainbrigge v. Blair, 1 Beav. 495; 
 
 ton V. Fry, 2 Moll. 458; Greenwood v. Re Roche, 1 Conn, & Laws. 306; 2 Dr. 
 
 Wakeford, 1 Beav. 576. [See Matter of & W. 287. [See Turner v. Maule, 5 
 
 Jones, 4 Sandf. Ch. 115.] Engl. L. & Eq. 222, under a power, and 
 
 (n) Millard v. Eyre, 2 Ves. jun. 94. ante 179, note.] 
 
 ' It has been decided in the United States, that courts of equity in general have 
 power to appoint new trustees where the original trustees refuse, decline, or 
 neglect to act, (King v. Donnelly, 5 Paige, 46 ; Peyster v. Clendinning, 8 Paige, 
 295; Matter of Mechanics' Bank, 2 Barb. S. C. 446; McCorkenw. Bond, 1 Barb. 
 Ch. 329; Potts' Petition, 1 Ashm. 340; Lee v. Randolph, 2 Hen. & Munf. 12; 
 Dawson I). Dawson, Rice's Eq. 243; Field i). Arrowsmith, 3 Hump. 442); or omit to 
 enter security where the act requires it (Johnson's Appeal, 9 Barr, 446); or die, 
 (State Bank v. Smith, 6 Alab. 75 ; Ex parte Conrad, 2 Ashm. 527 : Pate v. McClure, 
 4 Rand. 164: Dunscombe v. Dunscombe, 3 Hen. & M. 11); or are incapable of 
 acting (Suarez «. Pumpelly, 2 Sandf. Ch. 336); as by. long-continued habits of 
 intemperance (Bayles v. Staate, 1 Halst. Ch. 513); or by lunacy (Matter of 
 Wadsworth, 2 Barb- Ch. 381, see in re Smith, 17 Law Journ. Ch. 415); but great 
 age by itself is not enough (Hosack v. Rogers, 6 Paige, 415) ; or have been guilty 
 of breaches of trust (Parsons v. Winslow, 6 Mass. 361; Cooper i). Day, 1 Rich. 
 Eq. 26; Gibbes v. Smith, 2 Id. 131 ; Thompson v. Thompson, 2 B. Monr. 161; 
 see Matter of Mech. Bank, 2 Barb. S. C. 446) ; as in making improper invest- 
 ments of the trust money (Gibbes «. Smith, 2 Rich. Eq. 131; Johnson's Appeal, 
 9 Barr, 416). Constructive fraud alone, however, as buying in the trust property 
 
BY THE COURT OF CHANCERY. 275 
 
 And in like manner it has been considered a sufficient reason for 
 changing a trustee, where a corporation, which was originally ap- 
 pointed to act as trustee, had become subject to a foreign power ;(s) or 
 where a female trustee had married a foreigner, although by her answer 
 she denied any intention of quitting the kingdom, and stated her desire 
 of continuing in the trust.(t) And in the case of a charity, where two of 
 the original trustees were the holders for the time being of offices which 
 were changed annually, the inconvenience of so frequent a change 
 was held a sufficient reason for appointing other trustees.(M) In one 
 case a trustee, though desirous of acting, was removed by the court, 
 and a new one appointed, because his co-trustees declined to act with 
 him.(a;) But a failure by a trustee in discharging the duties of his 
 office from mistaking or misunderstanding his duty, will not of itself 
 be a sufficient ground for *removing him.(^) And the bona fide p^^ qq"! 
 refusal of a trustee to exercise a pure discretionary power for 
 the benefit of the trust estate (as a power of varying securities) is 
 also a wholly insufficient reason for a suit to have him discharged 
 from the trust. (2) 
 
 The fact of the original trustees having been appointed by an act 
 of parliament instead of any private instrument, will not prevent the 
 court from asserting and exercising its jurisdiction by appointing 
 other trustees in their room, where circumstances render it neces- 
 sary.(a) 
 , However, in addition to the general jurisdiction, inherent in the 
 court for this purpose, acts of parliament have been passed from time 
 to time, by which the power of appointing new trustees in certain 
 cases is expressly given to the court, to be exercised (as we shall 
 presently have occasion to consider) in a more concise and summary 
 way. 
 
 (s) Att.-Gen. v. Mayor of London, 3 (jj) Att.-Gen. v. Coopers' Comp., 19 
 
 Bro. C. C. 171. Ves. 192; Att.-Gen. v. Caius Coll., 2 
 
 («) Lake v. De Lambert, 4 Ves. 592. Keen, 150. 
 
 («) Ex parte Blackburne, 1 J. & W. (z) Lee v. Young, 2 N. C. C. 532. 
 
 297. (a) Buchanan 1;. Hamilton, 5 Ves. 722. 
 
 (x) Uvedale v. Patrick, 2 Ch. Ca. 20. [But see Callis v. Ridout, 7 G. & J. ].] 
 
 at his own sale, is not enough. Webb v. Deitrich, 7 W. & S. 401. A mere dis- 
 agreement between trustee and cestuy que trust will not be sufficient. Clemens 
 V. Caldwell, 7 B. Monr. 171. Where a cestuy que trust was prohibited from coming 
 into the State, the court, in a case in South Carolina, appointed inhabitants of 
 the same State with him; Ex parte Tunno, 1 Bail. Eq. 395. But a trustee re- 
 siding out of the jurisdiction will not be appointed, unless on security given. Ex 
 parte Roberts, 2 Strob. Eq. 86. It seems that it is only permanent absence, where 
 there are other trustees, which will authorize the substitution of a trustee. Gale's 
 petition, R. M. Charlton, 109 (and see Re Mais, 12 Engl. L. & Eq. 306). Where 
 the trusts under a will vested in the executor are distinguishable from those 
 attached to his ofRce, the court may dismiss him as to the former, and not as to 
 the latter. Craigi'. Craig,3 Barb. Ch. 76; Matter of Wadsworth, 2 Barb. Ch. 381. 
 
276 THE SUBSTITUTION OF TRUSTEES 
 
 Thus the general Bankrupt Act (6 Geo. IV. c. 16, s. 79), pror 
 vides, that if any bankrupt shall as trustee be seized or possessed of, 
 or entitled to, either alone or jointly, any real or personal estate, or 
 any interest secured thereon or arising out of the same, or shall have 
 standing in his name as trustee either alone or jointly any govern- , 
 ment or other stock in England, Scotland, or Ireland, it shall be law- 
 ful for the Lord Chancellor, or} the petition of the persons entitled 
 in possession to the receipt of the rents, &c., and on due notice to all 
 other persons interested, to order the assignees and all persons, whose 
 act or consent thereto is necessary, to convey, assign, or transfer the 
 said estate, interest, stock, &c., to such person or persons, as the Lord 
 Chancellor shall think fit, upon the same trusts as the said estate, 
 &c., was subject to before the bankruptcy, or such of them as shall 
 then be subsisting and capable of taking effect, and also to receive 
 and pay over the rents, &c., as the Lord Chancellor shall direct. 
 
 And now by the Bankruptcy Court Act (1 & 2 Will. IV. c. 66, s. 
 2), this, as well as the other jurisdiction of the Lord Chancellor in 
 matters of bankruptcy, is transferred to the Court of Review, sub- 
 ject to the right of appeal to the Lord Chancellor.(5)' 
 
 The statute 11 Geo. IV. & 1 Will. IV. c. 60, was introduced by 
 Sir E. Sugden, to obviate the inconvenience occasioned by the disa- 
 bilities, &c., of trustees, for which the previous acts, passed with the 
 same view,(c) had been found not to provide a sufficient remedy. 
 That act provides, that where trustees are persons non compotes men- 
 tis ;{S) or infants ;(e) or out of the jurisdiction ;(/) or where it is 
 unknown who is the survivor of several trustees ; or whether he be 
 living or dead; or who is his heir; (^)(1) or where any trustee, or 
 heir or executor of any last surviving trustee, refuses or neglects to 
 
 (5) Archb. Bkrupt. Law, 9th ed., (/) Sect. 8, 9, 10. [Trustee Act 
 
 248; see Williams «. Bird, 1 V. & B. 3. 1850, ^ 9,10,11. Watts' Settlement, 
 
 (c) 7 Ann. c. 19; 36 Geo. III. o. 90; 9 Hare, 106; 15 Jur. 459. See Flyer's 
 6 Geo. IV. c. 74. [Repealed and sup- Trust, 15 Jur. 766; Re Mais, 12 Eng. 
 plied by the "Trustee Act of 1850;" L. &Eq, 306.] 
 
 13 & 14 Vict. 0. 60; 14 Jur. part ii. (g) Sect. 8, 9, 10. [Trustee Act, 
 
 p. 360.] 1850, § 13, 14, 15, or there is a con- 
 
 (d) Sect. 3, 4, 5. [Trustee Act, 1850, tingent right of unborn trustees, &o., } 
 § 3, 4, 5, 6.] 16.] 
 
 (e) Sect. 6, 7. [Trustee Act, 1850, 
 ^ 7, 8.] 
 
 (1) By the recent act for the amendment of the Law of Escheat, 4 & 5 Will. 
 IV. c. 23, s. 2, this provision is extended to cases where a trustee dies without an 
 heir. [Trustee Act, 1850, H 5.] 
 
 ' The Bankruptcy Consolidation Act of 12 & 13 Vict. c. 106, has now trans- 
 ferred the jurisdiction of the Court of Bankruptcy in the appointment of trustees 
 to the Court of Chancery; see Ex parte Walker, 19 L. J. Bank. 37. 
 
BY THE COURT OF CHANCERY. 277 
 
 convey, assign, surrender, or transferthe*trustproperty, when rnci go-i 
 required to do so as directed by the act;(^)' it shall be law- 
 ful for the Lord Chancellor on 'petition to direct a conveyance, &c., 
 to be made by the trustee himself, or by any person whom the court 
 shall appoint in his place.^ And then by the 22d sect., after 
 reciting that cases may occur upon application by petition under the 
 act for a conveyance or transfer, where the recent creation or declara- 
 tion of the trust or other circumstances may render it safe and expe- 
 dient for the Lord Chancellor, &c., to direct by an order upon such 
 petition, a conveyance or transfer to be made to a new trustee or 
 trustees, without compelling the parties seeking such an appointment 
 to file a bill for that purpose, although there is no power in any deed 
 or instrument creating or declaring the trusts of such land or stock 
 to appoint new trustees ; it is enacted, that in any such case it shall 
 be lawful for the Lord Chancellor, &c., to appoint any person to be 
 a new trustee, by an order to be made on a petition for a conveyance 
 or transfer under the act after hearing all such parties as the court 
 shall think necessary :" and thereupon a conveyance or transfer shall 
 be executed so as to vest such land or stock in such new trustee 
 either alone or jointly with any surviving or continuing trustee, as 
 effectually and in the same manner, as if such new trustee had been 
 appointed under a power in any instrument creating or declaring the 
 trusts of such land or stock, or in a suit regularly instituted. 
 
 It has been decided, that the jurisdiction, conferred on the court 
 by the 22d sect, of this act, applies only to the cases pointed out by 
 the previous sections ; viz., the disability or refusal of the existing 
 trustees, or their being out of the jurisdiction, or their existence not 
 being known, and then only in recent and plain cases ; and that in 
 all other cases a bill must be regularly filed for the appointment of 
 trustees under the general jurisdiction of the court.(z') 
 
 Qi) Sect. 8, 9. Ex parte Boyne, Ca.Temp. Plunk. 134; 
 
 (i) Re NichoUs, Ca. Temp. Sugd. 17 ; Re Earl of Mayo, id. 124 ; Re Fairse- 
 
 Re Fitzgerald, id. 20; Re Pennefather, well, 2 Jur. 987; Re Clark, 1 Jur. 737; 
 
 2 Dr. & W. 292; Re Hartford, ib.; Hart Re Anderson, Ca. Temp. Sugd. 27. 
 V. Ld. Ffrench, ib. ; Re Whitley, id. 23 ; 
 
 ' Trustee Act, 1850, ^ 17, &c. And see on construction of these sections, 
 Rowley d. Adams, 14 Beav. 130; 15 Jur. 1002; In re Hodgson's Settlement, 
 4Eng. L. & Eq., 182; Ex parte Russell, 1 Sim.N. S. 404; 15 Jur. 100; 1 Eng. L. 
 & Eq. 225; In re Hartwell's Will, 8 Eng. L. & Eq. 172; Smyth's Settlement, 
 4 Eng, L. & Eq. 107. 
 
 ^ In all these cases, by the " Trustee Act, 1850," it is provided that it shall be 
 lawful for the Court of Chancery or the Lord Chancellor as guardian of lunatics, 
 to make an order vesting the lands, &c., in such person or persons as the court, 
 &c., shall direct, or in the acting trustees ; or to release the lands from any con- 
 tingent right, &o. ; which order shall have the same effect in the respective cases, 
 as a conveyance, assignment, or release by the old trustee. See 14 Jur. p. ii. p. 
 361, &c. 
 
278 THE SUBSTITUTION OF TRUSTEES 
 
 In cases of charity, we shall presently see, that a similar general 
 s\imniary jurisdiction is conferred on the court by 62 Geo. III. c. 101 
 (Sir Samuel Romilly's Act). And in consequence of the great ex- 
 pense to charities, where all the trustees were dead, in making out 
 the title of the heir to the surviving trustee, the Act 1 Will. IV. c. 
 60, s. 23, also provided, that where all the trustees of any estate for 
 any charity or charitable or public purpose should be dead, the court 
 might on a petition in a summary way require by advertisement the 
 representative of the last surviving trustee to appear or give notice 
 of his title within twenty-eight days and prove his pedigree or other 
 title as trustee, and in default the court is authorized to appoint new 
 trustees, and to order a conveyance to be made to them of the trust 
 property without the necessity of any decree. (A;) And this enact- 
 ment has since been embodied and extended by subsequent sta- 
 tutes. (Z)^ 
 
 Where no trustees of a charity had been appointed since 1634, 
 the court on an application made in 1844, presumed the death of all 
 r*1 Q41 ^^^ *trust^es, and directed a reference to the Master in the 
 terms of the 23d section of the above a,ct.{m) 
 
 The death of two out of twelve original trustees of a charity is 
 not a sufficient reason for an application to the court to appoint two 
 
 (A) 2 Sugd. Pow. 533, 4. Belke's Charity, 13 Jur. 317; and 
 
 (0 2 & 3 Will. IV. c. 57, s. 3, 4; 5 & "Trustee Act, 1850," s. 45.] 
 6 Will. IV. c. 71, s. 18, 20. [See In re (m) Re Nightingale's Charity, 3 Hare, 
 
 336. 
 
 > Now by the Trustee Act of 1850 (13 & 14 Vict. c. 60, sect. 32), whenever 
 it shall be expedient to appoint a new trustee or trustees, and it shall be found 
 inexpedient, difficult (and under the head of " difficulty" is comprehended the 
 case of a lunatic trustee, though there be a power of appointing in the instru- 
 ment; Matter of Davies, 7 Eng. L. & Eq. 8; 3 Mac. & G. 278), or impracticable 
 so to do without the assistance of a Court of Chancery; the Court of Chancery 
 may make an order appointing a new trustee or trustees, either in substitution 
 for or in addition to (thus the Court may appoint two new trustees in place of 
 one, Ex parte Turnstall, 15 Jur. 645; 5 Eng. L. & Eq. 116) any existing (which 
 includes disclaiming, Tyler's Trust, 8 Eng. L. & Eq. 96) trustee or trustees, who 
 (sect. 33) shall have the same right and powers as though appointed by regular 
 suit. The Court (sect. 35) at the same or at a subsequent time may make an 
 order, vesting the new trustee with the land, &c., as though conveyance, &c., 
 had been duly executed (see In re Davidson, 7 Eng. L. & Eq. 161), and they 
 are (sect. 35) to give power to sue at law in cases of choses in action, &c. Such 
 discharge (sect. 36) is not, however, to affect the old trustees further than would 
 an appointment exercised under a power in the original instrument. The ap- 
 plication (sect. 37) for such order may be made by any person beneficially in- 
 terested, though under disabilities, or by the old trustee. In order to the applica- 
 tion, the parties may (sect. 38) go before a master first and establish the fact (see 
 Re Farmer, 12 Eng. L. & Eq. 330); or (sect. 39) immediately to the Chancellor 
 or Court. See Robinson's Trust, 2 Eng. L. & Eq. 14; 15 Jur. 487. Sect. 40. 
 Costs to come out of estate in general. (See In re Fulham, 15 Jur. 69.) 
 
BY THE COURT OF CHANCERY. 279 
 
 new trustees at the expense of the cliarity.(n) But where the num- 
 ber of the original trustees is lessened by one-third, the court on 
 petition will proceed to the appointment of others.(o) 
 
 II.— HOW THE COURT ACTS IN APPOINTINQ NEW TRUSTEES. 
 
 1st. — The appointment may be made by a suit. 
 
 As a general rule, the jurisdiction of the court to appoint new 
 trustees can only be called into exercise by means of a bill filed by 
 and against all proper parties, and praying for the desired relief.' 
 In some instances, however, as we have already seen, the court has 
 been expressly empowered by the legislature to administer this relief 
 in a more summary way upon petition. 
 
 It is to be observed, that the summary proceedings authorized by 
 these acts, are not in any case rendered imperative on the court, 
 and the original jurisdiction of proceeding by bill or information still 
 exists, and may be exercised even in cases coming directly within 
 any of those statutes.(^) 
 
 Thus in a recent case, that occurred since the passing of the statute 
 6 Geo. IV. c. 16, a trustee, who had become bankrupt, was removed 
 on that ground, and another appointed in his place^ in a regular suit 
 instituted for that purpose, although the same object might have 
 been accomplished by means of a petition under the act.(g') And 
 in another late case an information was filed for the appointment of 
 new trustees of a charity in the place of some who were dead, (r) 
 
 And where a bill has been filed and the answer put in, the court 
 will not entertain a petition presented afterwards for the same object, 
 but the cause must proceed regularly to a hearing. 
 
 However, if the objection were taken by any of the parties in a 
 private trust, or even without any such objection being taken in the 
 case of a charity (whose interests the court is bound of itself to 
 protect), the additional expense incurred by the proceeding by suit 
 would probably be visited on the parties by whose conduct it was 
 unnecessarily occasioned. We shall presently have occasion to con- 
 
 (n) Re Marlborough School, 13' Law (;?) See ex parte Rees, 3 V. & B. 11; 
 
 Journ. N. S., Chanc. 2 ; Re Faversham Miller v. Knight, 1 Keen, 129. 
 
 Charities, L. C. 15th Nov. 1844, MS. (5) Bainbrigge v. Blair, 1 Beav. 495. 
 
 (0) Re Warwick Charities, cor. Ld. (r) Attorney-General v. Clack, 1 
 
 Lyndhnrst, Ch., 22d Nov. 1844, MS. Beav. 467. 
 
 ' See Ex parte Knust, 1 Bailey's Eq. 4S9; Ex parte Hussey, 2 Whart. 330; 
 Matter ofVan Wyck, 1 Barb. Ch. 565. A trustee will not be divested of his 
 trusts, and a receiver appointed, before answer, unless there be danger of 
 irreparable loss. Ogden v. Kip, 6 John. Ch. 160. 
 
280 THE SUBSTITUTION OP TRUSTEES 
 
 sider the cases in which a suit will be necessary notwithstanding 
 those statutes. («) 
 
 A bill for the appointment of new trustees may be filed, either by 
 the parties beneficially interested in the trust estate against the ex- 
 r^^qc-iisting *trustees, and this is the more usual course ;(m) or, if 
 circumstances require it, by the existing or continuing trustees, 
 against their cestui que trusts ;{x) or again, one or more of several 
 trustees may join as co-plaintifi's with the cestui que trusts in a suit 
 for the removal of one of the trustees and the appointment of 
 another in his place. («/) 
 
 Where the trust is for charity, and it is not considered possible or 
 advisable to proceed by petition under either Sir Samuel Komilly's,(2) 
 or Sir Edward Sugden's(a) Acts, the proceeding will be by informa- 
 tion filed by the Attorney-General on behalf of the charity ;(6) and 
 relators, though usual in such a case, are not indispensable. (c) 
 
 In all cases, the circumstances which render the new appointment 
 necessary or proper, must be stated ; and the removal of the old 
 trustee (where that forms part of the object of the suit), as well as 
 the new appointment, and the directions for the execution of the ne- 
 cessary conveyance, should be prayed by the bill. 
 
 However, the court has sometimes directed a reference to the 
 Master to approve of a new trustee, although that does not appear 
 to have been expressly included in the prayer for relief.(d) 
 
 All the persons beneficially interested must be made parties to a 
 suit for the appointment of a new trustee, (e)' 
 
 («) See Finlay v. Howard, 2 Dr. .& (b) Att.-Gen. ?;. Mayor of London, 3 
 
 W. 490. Bro. C. C. 171 ; Att.-Gen. v. Stephens, 
 
 («) Bennet v. Honywood, Ambl. 708, 3 M. & K. 347 ; Att.-Gen. v. Clack, 1 
 
 14; Millard v. Eyre, 2 Ves. jun. 94; Beav. 467. 
 
 Buchanan v. Hamilton, 5 Ves. 722 ; (c) Re Bedford Charity, 2 Sw. 520 ; 
 
 Earl of Portsmouth v. Fellows, 5 Mad. 1 Dan. Ch. Pr. 13. 
 
 450; Howard v. Rhodes, 1 Keen, 581; (d) Attorney-General v. Stephens, 3 
 
 Bainbrigge v. Blair, 1 Beav. 495. M. & K. 349, 52 ; see Wilson v. Wil- 
 
 (x) Coventry v. Coventry, 1 Keen, son, 2 Keen, 251. 
 
 758; Greenford v. Wakeford, 1 Beav. (e) Wardle v. Hargreaves, 11 Law 
 
 576. Journ. N. S., Chanc. 126. [See In re 
 
 {y) Lake u. De Lambert, 4 Ves. 592. Smith, 2 De G. & S. 781; Ex parte 
 
 (z) 52 Geo. IIL c. 101. Tunno, 1 Bail. Eq. 395.] 
 
 (a) 1 Will. IV. c. 60. 
 
 ' A cestui que trust who has a vested though future interest, may file a bill for 
 removal of a trustee. Cooper v. Day, 1 Rich. Eq. 24. But where a married 
 woman, cestui que trust, drew an order on the trustee of her separate estate in 
 favor of her children, it was held that this did not create a lien on the fund so as 
 to entitle the children to be heard in the appointment of a new trustee. Hawley 
 v, Ross, 7 Paige, 103. A new trustee may be appointed though some of the 
 cestuis are infants, and others out of the jurisdiction. Hunter v. Gibson, 16 Sim. 
 158. A trustee who had retired and allowed a new trustee to be appointed, 
 without communication to his cestui que trust, is not a necessary parly to a bill 
 
BY THE COURT OF CHANCERY. 281 
 
 Where the object of a suit is to have a trustee removed for mis- 
 conduct, no statement will be scandalous or impertinent, which goes 
 to impute to the defendant misconduct or corrupt or improper motives, 
 such as vindictiveness, or personal hostility, in the execution of the 
 trust ; although it is impertinent, and possibly scandalous, to state 
 circumstances of general malice or personal hostility.(/) 
 
 Where the court has already assumed the administration of a trust 
 estate through a suit, though instituted with a dififerent object, a dis- 
 tinct bill need not be filed for the appointment of new trustees, but 
 the court will entertain an application for that purj)ose made in the 
 form of a motion in the cause ; and upon the hearing of such a 
 motion it will in a proper case make an order, referring it to the 
 Master to approve of a proper person to act as trustee.(^) 
 
 The court will not by its decree in a suit in the first instance ap- 
 point any person who may be proposed as the new trustee ; but it 
 will be referred to the Master to approve of a proper person to be 
 trustee ;(A)(1) *or if the appointment of any particular person r*-i gg-i 
 may have been asked, the reference will be to inquire whe- 
 ther the party proposed be a proper person to be trustee :(i) and on 
 application, leave will be given to any particular persons to propose 
 themselves before the Master, if no objection exist to their appoint- 
 ment.(A;) 
 
 However, where all parties, being competent, consent to the ap- 
 pointment of a particular person to be the new trustee, the court will 
 at once direct the transfer of the trust estate to him without any 
 reference. (Z)^ 
 
 (/) Per Sir J. Leach, V. C, in Earl Seton's Decrees, 249, 50. [Matter of 
 
 of Portsmouth v. Fellows, 5 Mad. 450. Stuyvesant 3 Edw. Ch. 299 ; but see 
 
 (g-) V. Osborne, 6 Ves. 455; now under Trustee Act of 1850, Ro- 
 
 Webb V. E. of Shaftesbury, 7 Ves. 487; binson's Trust, 2 Eng. L. & Eq. 111.] 
 V. Roberts, IJ. & W. 251. (i) O'Keeffe v. Calthorpe, 1 Atk. 18 ; 
 
 Qi) Luther v. Chamberlen, Seton's v. Roberts, 1 J. & W. 251. 
 
 Dec. 249; Buchanan v. Hamilton, 5 (Jc) Attorney-General v. Clack, 1 
 
 Ves. 722; Millard v. Eyre, 2 Ves. jun. Beav. 474. 
 
 94; Att.-Gen. v. Stephens, 3 M. & K. (/) O'Keeffe v. Calthorpe, 1 Atk. 18. 
 352; Howard 1). Rhodes, 1 Keen, 581; 
 
 (1) Sometimes the reference will be to the Master at once to appoint the new 
 trustees, Att.-Gen. r>. Anan, 1 J. & W. 229 ; Millard v. Eyre, 2 Ves. jun. 94 ; 
 Seton's Decrees, 250. 
 
 complaining of such new appointment, and seeking to displace the new trustee, 
 all relief against the old being waived. " Marshall v. Sladden, 7 Hare, 428 ; 14 
 Jur. 106. So a trustee who has transferred the trust property to a trustee ap- 
 pointed by order of the court, will be bound by the substitution, although not a 
 party to the suit in which jt was made. Thomas v. Higham, 1 Bailey's Eq. 222. 
 ' In Young v. Young, 4 Cranch, C. C. R. 499, the trustee of a family settlement 
 was changed by consent on bill filed, though infants were interested ; but see 
 Cruger v. Halliday, 11 Paige, 314; Jones v. Stockett, 2 Bland, 409. 
 
282 THE SUBSTITUTION OF TRUSTEES 
 
 ^ The report of the Master, upon a reference in a suit to approve of 
 a new trustee, may be excepted to on the ground of the unfitness of 
 the person appointed : but there must be a direct complaint of his 
 actual unfitness ; and where the exception is taken on the ground, 
 that another person would have been more fit for the oflSce, than the 
 person approved of by the Master, the court will not enter into the 
 question of the comparative fitness of the parties.(TO) 
 
 The appointment of the new trustee by the court would not be 
 complete without a conveyance or transfer of the trust property to 
 him. The decree therefore usually goes on to direct a proper con- 
 veyance of the legal estate (to be settled if necessary by the Master) 
 either to the new trustee alone, or to him jointly with the surviving 
 or continuing trustees, if any ; and that the conveyance shall be 
 executed by all requisite parties, whether the surviving trustees, or 
 the representative of the last survivor, or a trustee who by the same 
 decree is removed from his office. (w) 
 
 As a general rule the costs of a suit for the appointment of a new 
 trustee to supply a vacancy in the trust, as well as the expenses con- 
 sequential on such a suit, will be borne by the general corpus of the 
 trust estate. And the same rule will also prevail where the bill is 
 filed by a trustee to be discharged from the trust, if he has suffi- 
 cient reason for making the application, and does not act from obsti- 
 nacy or caprice.(o) And where the costs of the trustee are directed 
 to be paid out of a fund under the control of the court, they will be 
 directed to be taxed as between solicitor and client. If there be no 
 such fund, the taxation will be only as between party and party.(p) 
 
 However, if a trustee have once accepted the trust, he must assign 
 a sufficient reason for seeking to be discharged :' and if no such 
 reason be given, he will not be allowed his costs of a suit, instituted 
 by the cestui que trusts for the appointment of a new trustee to act 
 in his place ; but in making a decree in such a suit the court will 
 give no directions as to the payment of costs, thereby leaving each 
 party to pay his own.(g') It has been laid down that in England 
 a trustee will never be removed on a bill filed hy him against the 
 cestui que trusts, and although that will be done in Ireland, it will 
 be only on the terms of the trustee paying the costs of the suit.(»') 
 
 (m) Att.-Gea. v. Dayton, 2 S. &S. 528. (p) 3 Dan. Ch. Pr. 77. 
 
 (>i) O'Keeffe v. Calthorpe, 1 Atk. 18; (5) Howard v. Rhodes, 1 Keen, 581. 
 
 Seton's Deer. 249, 50. [Courtenay v. Courtenay, 3 J . & Lat. 
 
 (0) Coventry^). Coventry, 1 Keen, 758 ; 529 ; Matter of Jones, 4 Sandf. 416.] 
 
 see Taylor v. Glanville, 3 Mad. 176; (r) Hamilton v. Fry, 2 Moll. 458. 
 CurteisD. Chandler, 6 Mad. 123 ; Green- 
 ford V. Wakeford, 1 Beav. 581. 
 
 ' See Cruger v. Halliday, 11 Paige, 314; Re Molony, 2 J. & Lat. 391. 
 
BY THE COUET OF CHANCERY. 283 
 
 However the practice affecting this question, as established by the 
 courts in England at the present day, does not fully bear out the 
 *dietum, thrown out by the judge, who decided the case of r#-i g>7-] 
 Hamilton v. Fry.(r) 
 
 In the recent case of Greenford v. Wakeford,(s) the law on this 
 subject was thus laid down by Lord Langdale, M. R., " If a trustee 
 undertakes the performance of a trust, he is not entitled, as against 
 the estate he has undertaken to protect, to exercise a mere caprice, 
 and without any assignable reason say, that he will no longer con- 
 tinue trustee. But on the other hand, if a trustee finds the trust 
 estate involved in intricate and complicated questions, which were not 
 and could not have been in contemplation at the time, when the trust 
 was undertaken, he ha^ in consequence of that change of circum- 
 stances, a right to come to the court to be relieved ; and the court , 
 will judge, whether the circumstances were such as to make it fair 
 for him to decline acting longer upon his own responsibility."(s) 
 
 There can be no question, but that the heir or personal representa- 
 tive of an original trustee, upon whom the law casts the legal estate 
 of the trust property, may apply to the court to be relieved from the 
 trust by having other trustees appointed, if they have never accepted 
 or acted in the trust.(^) 
 
 In a late case the conduct of the cestui que trusts for life, in 
 creating frequent incumbrances and embarrassing the trust estate, 
 and thereby fixing the trustees with responsibilities, which they, had 
 not originally contemplated, was held a suflicient reason, for the 
 trustees themselves to institute a suit against the cestui que trusts, 
 for the purpose of being discharged from the trust ; although under 
 the circumstances of that case the costs of the suit were ordered to 
 be paid out of the interest of the tenant for life.(M) 
 
 And so where the trust estate had been involved in complication 
 and difficulty, through an improper investment, which had been made 
 by a trustee for the benefit and accommodation of one of the cestui 
 que trusts for life ; it was held by the same learned judge, that the 
 trustee was not precluded from coming to the court to be relieved 
 from the trust, although the difficulties were occasioned by his own 
 act; and that he was entitled to his costs either against the trust fund, 
 or the tenant for life.(a;) 
 
 In that case the trustees, by whom the bill was filed, were the 
 executors of the original trustee, by whom the breach of trust had 
 been committed; and that was a material circumstance in their 
 
 (r) Hamiltoa v. Fry, 2 Moll. 458. (u) Coventry v. Coventry, 1 Keen, 
 
 (s) Greenford v. Wakeford, 1 Beav. 758. 
 
 581,2. (a;) Greenford u. Wakeford, 1 Beav. 
 
 («) Greenford v. Wakeford, ubi supra. 576, 582. 
 
284 THE SUBSTITUTION OP TRUSTEES 
 
 favor ; but from his Lordship's observations it may be concluded, that 
 the decree would have been the same, had the bill been filed by the 
 original trustee himself.(«/) 
 
 It is almost unnecessary to state, that if the trustees be guilty of 
 any improper conduct, they will be fixed personally with the costs 
 occasioned by their misbehavior, (s) 
 
 2d. The appointment may be made on petition : ^ 
 
 There has been already occasion to observe, that by particular 
 enactments of the legislature the court has been empowered in cer- 
 tain cases to dispense with the institution of a formal suit, and to 
 exercise its jurisdiction of appointing new trustees in a more sum- 
 mary way upon petition.^ 
 
 *Thus in the case of trusts for charitable purposes the sta- 
 t -"^^^J tute 52 Geo. III. c. 101 (usually called Sir Samuel Romilly's 
 Act), provides, That in every case of a breach of trust, or supposed 
 breach of trust, or whenever the direction or order of a court of 
 equity shall be deemed necessary for the administration of any trust 
 for charitable purposes, it shall be lawful for any two or more per- 
 sons to present a petition to the court, praying such relief as the 
 nature of the case may require, and the court is empowered, and 
 required, to hear and determine such petition in a summary way, 
 upon such aflSdavits or other evidence as may be produced, and to 
 make such order thereon and in respect of the costs, as it shall think 
 just. 
 
 It will be remarked, that this act does not in terms authorize the 
 appointment of new trustees by the court on petition : however there 
 never has been any question, but that this power comes within the 
 general scope and intention of the act ; and where a clear breach 
 of trust has been committed by the existing trustees of a charity, the 
 court on a petition presented under the act will not only remove the 
 old trustees, but also compel them to convey to new trustees at their 
 own expense. (a) 
 
 And even where no breach of trust is established, or suggested, 
 against the existing trustees ; yet, if their continuance in the office 
 be likely to occasion considerable inconvenience to the charity 
 (although from no personal default of theirs), the court will appoint 
 
 (y) 1 Beav. 582. (o) Ex parte Greenhouse, 1 Mad. 92, 
 
 (z) Att-Gen. v. Clack, 1 Beav. 474; 109; Ex parte Seggears, 1 V. & B. 
 see Ex parte Greenhouse, 1 Mad. 92, 497. 
 109; and see ihis subject further con- 
 sidered, post. Costs. 
 
 'In South Carolina, though the appointment is generally on bill filed, yet where 
 by the death of a former trustee the estate has devolved on his executor, he may 
 be removed on petition. Ex parte Knust, 1 Bail. Eq. 489 ; see note, ante, 1 90. 
 
 ''See the Act of 1850, stated ante, 193. 
 
BY THE COURT OF CHANCERY. 285 
 
 other trustees in their room on a petition, under the act presented 
 solely with that object.(6)(l) 
 
 It has been decided by Lord Eldon, that although the act autho- 
 rizes " any two or more persons" to present a petition, yet that 
 must be understood to mean persons having an interest ; and there- 
 fore that no person can petition under the act, who has not a direct 
 interest in the charity.(c) And the petitioners must show, that their 
 interest is such as is alleged in the petition. ((^) 
 
 The petition moreover must be signed by the Attorney-General, 
 or by the Solicitor-General, if there be no Attorney-General at the 
 time ; and the court will require such signature to be affixed with 
 as much deliberation as to be a regular information.(e) An order 
 made upon a petition, which had not been signed by the Attorney 
 or Solicitor-General will be a mere nullity,(/) and the petition may 
 be taken off the file.(^) 
 
 We have already had occasion to remark that the act does not 
 make it imperative on the parties to proceed by petition. (A) If how- 
 ever an information be filed, and a petition under the act presented, 
 having all or some of the same objects in view, the court will not 
 proceed on both, but will refer it to the Attorney-General to con- 
 sider which should proceed.(i) 
 
 *The act does not authorize the court to decide on peti- [-^-.qq-, 
 tion any adverse iclaims affecting the charity, whether such ^ J 
 claims arise between the trustees themselves, or the parties claiming 
 a benefit.(A) And where a petition presented under the act, em- 
 braces in its prayer relief, which partly can and partly cannot be 
 granted in that form of proceeding, the court will have great diffi- 
 culty in separating the proper from the improper objects of the peti- 
 tion. (Z) It has been held also, that constructive trusts are not within 
 the operation of this act.{q) 
 
 The substance and object of the provision, contained in the 23d 
 
 (6) Ex parte Blackburne, IJ. & W. (g) Re Dovenby Hospital, 1 M. & 
 
 297. Cr. 279. 
 
 (c) Re Bedford Charity. 2 Swanst. (fe) Ex parte Rees, 3 V. & B. 11 ; and 
 518. see ante, p. 194. 
 
 (d) Corporation of Ludlow v. Green- (i) Attorney-General v. Green, 1 J. & 
 house, 1 Bl. N. S. 17, 91. W. 303. 
 
 (e) Ex parte Skinner, re Lawford Cha- (k) Corporation of Ludlow v. Green- 
 rity, 2 Mer. 453, 6. house, 1 Bligh. N. S. 17 ; re West Ret- 
 
 (/) Attorney-General v. Green, 1 J. ford, 10 Sim. 101, 8. 
 & W. 303. (l) Ex parte Skinner, 2 Mer. 457. 
 
 (9) Ex parte Brown, Coop. 295. 
 
 (1) But see Ex parte Skinner in re Lawford Charity, 2 Mer. 456, where Lord 
 Eldon is reported to have said, that the result of a conversation he had had with 
 the then Master of the Rolls and the Vice-Chancellor on the scope of this act 
 was, that they all considered the act as meant to extend only to cases of plain 
 breach of trust. 
 
286 THE SUBSTITUTION OP TRUSTEES 
 
 section of Sir E. Sugden's Act (1 Will. IV. c. 60), has been already 
 stated, and it has been seen, that the provision has been embodied 
 in the subsequent statute (2 & 3 Will. IV. c. 57, s. 3).(r) The ob- 
 ject of those enactments being, to facilitate the relief, in case of the 
 death of all the trustees of a charity. 
 
 By those acts, where all the trustees of real estate, held in trust 
 for a charity are dead, the court is empowered on the petition of the 
 Attorney-General, or of the persons or body administering the 
 charity, or of any person on behalf thereof, to direct advertisements 
 to be made for the representatives of the last surviving trustee to 
 appear, or give notice of his title within twenty-eight days, and in 
 default of such appearance or notice, or if such title shall not be 
 proved within thirty-one days afterwards, then to appoint any new 
 trustees, and to direct the conveyance to them of the charity estate 
 by any person to be appointed for that purpose, without the necessity 
 of any decree. It has recently been decided by Lord Langdale, M. 
 R., that the court has power to make an order, referring it to the 
 Master to approve of new trustees of a charity, upon a petition pre- 
 sented under the act of 2 & 3 Will. IV. c. 57 only, and that the 
 petition for that purpose need not be under the 52 Geo. III. c. 101 
 (Sir S. Romilly's Act).(s) 
 
 There can be no doubt, but that Lord Eldon's decision in the case 
 of The Bedford Charity, (^) as to the persons who may present a 
 petition under Sir S. Romilly's Act, will apply equally to the acts 
 now under consideration ; and that the parties presenting the peti- 
 tion, must therefore have a direct interest in the charity. It has been 
 decided, that the person having the administration of a charity may 
 present a petition under the act.(M) The petition may of course be 
 presented by the Attorney-General himself.(a;) 
 
 It may be observed in this place, that the provisions of Sir. E. 
 Sugden's Act (1 Will. IV. c. 60), with reference to the powers 
 thereby given to the court, in case of the disability, &c., of trustees, 
 are by the 21st section expressly extended to trusts for charity or 
 friendly societies. 
 
 The bankruptcy of a trustee, as we have already seen, is another 
 instance in which the court has been expressly authorized by the 
 legislature to appoint a new trustee in room of the bankrupt sum- 
 marily upon petition ; and the substance of the seventy-ninth section 
 of the General Bankrupt *Act (6 Geo. IV. c. 16), by which 
 L -■ this power was given to the court, has been already stated.(«/) 
 
 (r) Vide supra, p. 193. (it) Re Nightingale's Charity, 3 Hare, 
 
 («) Re Fowey's Charities, 4 Beav. 336. 
 225. (a) Re Fowey's Charities, 4 Beav. 
 
 (0 2 Swanst. 518. 225. 
 
 (y) Preceding section, p. 192. 
 
BY THE COURT OF CHANOERT. 287 
 
 It has also been stated, that this power is now vested by the Bank- 
 ruptcy Court Act (1 & 2 Will. IV. c. 66), in the Court of Review, 
 subject to the appellant jurisdiction of the Lord Chancellor. (z) 
 
 A new trustee will be appointed in the place of a trustee, who had 
 become bankrupt, though the latter had obtained his certificate.(a) 
 The Court of Review has no jurisdiction to appoint new trustees of a 
 fund on the bankruptcy of the existing trustees, unless the persons 
 beneficially interested are before the court. Therefore no new trus- 
 tee can be appointed, where the cestui que trust is out of the jurisdic- 
 tion. (6) 
 
 The remaining cases in which the court has the power of appointing 
 new trustees on petition, are those provided for by Sir Edward Sugden's 
 Act (1 Will IV. c. 60), as extended by the subsequent statute 4 & 5 
 Will. rV. c. 23, s. 2. These are the disability of the existing' trus- 
 tees from lunacy or infancy : their absence from the jurisdiction : or 
 refusal to convey or assign : or where it is unknown who was the sur- 
 vivor of several trustees : or whether a sole or last surviving trus- 
 tee be living or dead : or where the sole or last surviving trustee is 
 dead, without leaving an heir : or it is not known who is his heir. 
 
 The provisions of this act have been already in part considered ; 
 and it has been seen, that the 22d sect., which is the one that ex- 
 pressly empowers the court to appoint new trustees on petition, has 
 been held to apply only to these cases of disability, &c., in the exist- 
 ing trustees, which are provided for in the previous sections of the 
 act.(e) Orders obtained under this section in other cases, said Sir 
 E. Sudgen, Lord Chancellor of Ireland, " are absolutely waste paper, 
 and have no legal validity under the act."(d) We will now proceed 
 to consider some of the principal decisions, on applications for the ap- 
 pointment of new trustees by petition under this act, taking the 
 several cases in which such an application is authorized, in their or- 
 der as stated above. That is, 1st, The lunacy of the existing trustee ; 
 2d, His infancy ; and lastly, his being out of the jurisdiction, or un- 
 known, and other cases of that description. (e) 
 
 And 1st, In case of the lunacy of the existing trustee. 
 
 Before the court will act upon a petition for the appointment of a 
 new trustee presented under the 22d sect., it must be shown in the 
 first place, that the case is one that comes within the previous sec- 
 tions of the act. 
 
 By the interpretation clause (sect. 2), it is declared that the pro- 
 
 (z) Ante, preceding section, 192. 22; re Pennefather, 2 Dr. & W. 292; 
 
 (o) Ex parte Smith, re Dry, 3 Jur. Harte v. Lord Ffrench, ibid. 
 
 1 129. (e) The jurisdiction of the court under 
 
 (6) Re Moline'ux, 8 Jur. 132, this act to direct a conveyance by a trus- 
 
 (c) Ante, preceding section. tee under disability, is considered in a 
 
 (d) In re Fitzgerald, Ca. Temp. Sugd. future chapter on that subject. 
 
288 THE SUBSTITUTION OF TRUSTEES 
 
 visions relating to a "lunatic," are to extend to any "idiot," or "per- 
 son of unsound mind," or incapable of managing his affairs. 
 
 Where a petition is presented under the act on the lunacy of the 
 existing trustee, it was held on one occasion, by Sir L. Shadwell, 
 V. C, that the Vice-Chancellor had jurisdiction to make an order, 
 directing the ^reference to the Master in the first instance to 
 L -' inquire, whether the person named in the petition was a luna- 
 tic trustee within the act, although his jurisdiction ceased at that 
 point.(/)(l) 
 
 In a subsequent case, however, before the Lords Commissioners, it 
 was held, that the Vice-Chancellor had no jurisdiction to make even 
 such a preliminary reference, and that every order in the case of lu- 
 natic trustees must be made by the person entrusted with the juris- 
 diction over lunatics by the royal sign manual. (^) This decision 
 excludes also the jurisdiction of the Master of the Rolls in such cases. 
 Therefore where there had been some proceedings in a suit in the Ex- 
 chequer, relative to the estate of a lunatic trustee, the Lord Chancelr 
 lor (Lord Cottenham) held that he was not at liberty to adopt those 
 proceedings, and directed a fresh reference in the usual manner. (A) 
 
 It has been decided by Lord Cottenham, that the act authorizes the 
 appointment of a new trustee in the place of one, whom the Master 
 on a reference has reported to be of unsound mind, although he may 
 not have been found a lunatic by inquisition, (z) (2) But no order will 
 be made on a petition under the act, where the fact of the lunacy is 
 contested.(A) And mere infirmity or incapacity of a trustee is not 
 suflScient to give the court jurisdiction to appoint a new one on peti- 
 tion. (Z) 
 
 Where the existing trustee has not been found lunatic on inquisi- 
 tion, it was stated by Lord Brougham, C, that the reference to the 
 Master on a petition for the appointment of a new trustee ought in 
 future to embrace the following points : — First, An inquiry as to the 
 lunacy, &c., of the trustee; — Secondly, Whether he was seized or pos- 
 sessed of the property mentioned in the petition, either alone or 
 jointly, as a trustee upon any and what trusts ; — Thirdly, Whether he 
 took any beneficial interest therein ; — Fourthly, Whether there was 
 
 (/) Anon, 5 Sim. 322. (i) Re Welch, .S M. & Cr. 292. 
 
 (g-) Re Shorrocks, 1 M. & Cr. 31 ; re (A) Re Walker, 1 Cr. & Ph. 147. 
 
 Mount, 12 Law Journ. N. S. Chanc. 95. {V) Re Wakeford, 1 Jones & La- 
 
 [h) Re Prideux, 2 M. & Cr. 640. louche, 2. 
 
 ( 1) A petition under the act, praying that the committee of a lunatic trustee might 
 be ordered to convey, should be entitled in the lunacy, and need not be entitled 
 in the matter of the act of parliament. Re Fowler, 2 Russ. 449. 
 
 (2) It has been decided, that such a case was within the stat. 36 Geo. III. c. 90. 
 Simms v. Naylor, 4 Ves 360 ; West v. Ayles, T. & R. 330. 
 
BY THE COUBT OB CHANCERY. 289 
 
 any power ini the instrument to appoint new trustees ; Fifthly, A di- 
 rection to inquire and certify, who was a proper person or persons to 
 be appointed such new trustee or trustees in his place ; — and Sixthly, 
 To appoint a proper person to convey to such new trustee or trus- 
 tees, (wi) 
 
 Where a trustee has been found a lunatic on inquisition in England, 
 but the trust property is situated in Ireland, and the committee of 
 the estate is appointed by the Lord Chancellor there, the Lord Chan- 
 cellor of England has no power under the act to order the committee 
 of the estate to convey or transfer to a new trustee. (w) 
 2d. In case of the infancy of the existing trustee. 
 Where the infancy of the existing trustees is the ground for the 
 application for the appointment of a new one under the act, the court 
 will refer it *to the Master to inquire, whether the party is [-^of^p-l 
 an infant trustee within the meaning of the act ;(o) and if so, ■- -■ 
 to approve of a proper trustee in his place ; and then acting upon 
 the Master's report it will order the infant himself to convey the 
 trust estate to the new trustee. 
 
 The several statutes, which were passed from time to time, for 
 enabling trustees under disability, to convey, (p) (1) were all re- 
 pealed and their provisions adopted and extended by the act of 6 Geo. 
 IV. c. 74, which last act itself was also repealed by the 1 Will. IV. 
 c. 60, though the substance of its provisions were also adopted by 
 that statute. 
 
 The earlier decisions, therefore, on such of the provisions of the 
 previous acts as are still in force from having been re-enacted, 
 must be regarded as valid authorities at the present day. 
 
 It is to be observed, that the act of 1 Will. IV. applies only to the 
 infancy of trustees of real estate. In case of the infancy of the per- 
 sonal representiative of a trustee of personalty, the inconvenience 
 might be remedied according to the existing law, by taking out letters 
 of administration durante minore cetate. 
 
 If an infant trustee refuse to comply with an order to convey to 
 
 (m) Ee Pigott, 2 R. & M. 683. (p) 7 Ann. c. 19. [In force in South 
 
 (n) Re Tottenham, 2 M. & Cr. 39; Carolina, 2 Cooper's Stat. 547.] 2 Geo. 
 
 S. C. 1 Jur. 653. II. o. 10 ; 36 Geo. III. c. 90 ; 6 Geo. IV. 
 
 (0) Ex parte Marshall, 17 Ves. 383, c. 74. 
 n. ; Ex parte Anderson, 5 Ves. 240. 
 
 (1) It was expressly decided by the Master of the Rolls, in Ex parte Anderson, 
 5 Ves. 240, that the statute 7 Ann. c. 19, did not authorize an order upon petition 
 for an infant trustee to convey to another trustee, which could only be obtained 
 by a bill. However, an order of that de.scription was made under that statute on 
 petition in another case where the trust was for a charity, and a mere naked 
 conveyance of the legal estate was all that was required. Attorney-General v. 
 Pomfrel, 2 Cox, 221. See Rigg v. Sykes, 1 Dick. 400. 
 
 19 
 
290 THE SUBSTITUTION OF TRUSTEES 
 
 the new trustee, the course ■will be to move for an order, that the 
 infant should convey within a week after service of the order, and 
 then if he continue to refuse, to move that he may be committed.(j) 
 
 The fifteenth section of 1 Will. IV. c. 60, expressly extends its 
 provisions to trustees (otherwise within the meaning of the act), who 
 have a beneficial interest in the trust property, but by the same 
 section a discretionary power is given to the court to direct a bill to 
 be filed in such cases. We have seen that in the case of a lunatic 
 trustee, part of the reference to the Master is to inquire whether the 
 trustee has any beneficial interest :{r) and the court would unques- 
 tionably extend the same protection to an infant trustee. 
 
 The order for the infant trustee to convey to the new one operates 
 in personam ; and it is therefore no objection to the jurisdiction, that 
 the trust estate is situated out of the limits of the jurisdiction, as in 
 Ireland, (s) or Calcutta,(i) or the Island of Nevis. (m) However we 
 shall see presently, that these acts apply only in plain cases, (») and 
 in other cases the court will not act without a bill filed. 
 
 3d. The next cases for applications by petition under the 1 Will. 
 IV. c. 60, for the appointment of a new trustee, are those coming 
 within the 8th section. The first being, where the existing trustee is 
 r*9n^n °^^ °^ ^^^ *jurisdictioii. The eighth section,(l) by which such 
 L J an emergency is provided for, has been held by Lord Cotten- 
 ham, when Master of the Rolls, to relate only to positive or naked 
 trustees, and not to trustees by construction or operation of law.(y) 
 The reason appears to be, that in cases of constructive trust, the 
 alleged trustee may claim a beneficial interest adversely to the cestui 
 que trust ; and in that case by the 18th section no order can be made 
 under the act, until the party has been declared a trustee by the 
 court in a suit regularly instituted. 
 
 With regard to the question of who are to be considered out of 
 the jurisdiction, it is very seldom that any doubt can arise. On one 
 occasion Sir L. Shadwell, V. C, decided, that a trustee who was a 
 captain of a merchant vessel on a voyage to the West Indies, was not 
 out of the jurisdiction within the meaning of the act.(g) 
 
 The affidavit in support of the petition should state the country 
 
 (g) Re Beech, 4 Mad. 128; see 1 {y) Re Dearden, 3 M. &K. 508, 12. 
 
 Will. IV. c. 60, 6. 13. The same construction was applied to 
 
 (r) Re Pigott, 2 R. & M. 684. the 6 Geo. IV. c. 74; Dew v. Clark, 4 
 
 (s) Evelyn v. Forster, 8 Ves. 96. Russ. 511 ; King v. Turner, 2 Sim. 550; 
 
 It) Ex parte Anderson, 5 Ves. 240. Re Moody, Taml. 4. 
 
 («) Ex parte Prosser, 2 Bro. C. C. 325. {z) Hutchinson v. Stevens, 5 Sim. 498. 
 {x) Vide post. 
 
 (1) The 8th section provides for the trustees of land being out of the jurisdic- 
 tion, &c.: the 9lh section for trustees of leaseholds or terms for years: and the 
 10th section for trustees of stock. 
 
Bf THE COUET OF CHANCERY. 291 
 
 ■where the existing trustee is resident.(a) And in Ireland no order 
 will be made for the appointment of a new trustee in the place of one 
 residing in England, except upon an affidavit of service of notice of 
 the application on him. (6) But it does not appear that this practice 
 has been conversely adopted in England with regard to persons resi- 
 dent in Ireland. 
 
 The other grounds for the application to the court under the 8th 
 section are, — the uncertainty as to who was the survivor of several 
 trustees ;(e) or whether the last known trustee be living or dead ;((i) 
 or (in case of real estate) its not being known, who is the heir of the 
 last known trustee : or the refusal of the trustee, or his heir or execu- 
 tor (as the case may be), to convey, assign, or transfer, when properly 
 required.(e) In all these cases the jurisdiction of the court is con- 
 ferred by the same sections, and in the same words that apply to the 
 case of a trustee being out of the jurisdiction ; and the decisions and 
 observations, that have been just considered with reference to this 
 last case, will apply with equal force and authority to all the others. (1) 
 
 *By the act for the amendment of the Law of Escheat of pj.^^.-, 
 Property held in trust (4 & 5 Will. IV. c. 23), the provisions L J 
 of the 1 Will. IV. c. 60 are extended to cases where a trustee dies 
 without having an heir, an event, which had been purposely left un- 
 
 (a) Ex parte Hughes, 1 Jones & Lat. (e) Ex parte Winter, S Russ. 294 ; Ex 
 
 32. parte Hoggen, 1 Beav. 98 ; Ex parte Fo- 
 
 (6) Ibid. ley, 8 Sim. 335 ; Warburton v. Vaughan, 
 
 (c) Re Nightingale's Charity, 3 Hare, 4 Y. & C. 247; Prendergast v. Eyre, 1 
 
 336. LI. & G. 11; Robinson v. Wood, 5 Beav. 
 
 (rf) Ex parte Dover, 5 Sim. 501. .246; Cockell v. Pugh, 6 Beav. 293. 
 
 (1) The 8th section, which applies to trustees of real estate, is as follows: — 
 " Where any person, seized of any land upon any trust, shall be out of the juris- 
 diction of, or not amenable to the process of the Court of Chancery; or it shall be 
 uncertain (where there were several trustees) which of them was the survivor ; 
 or it shall be uncertain, whether the trustee, last known to be seized as aforesaid, 
 be living or dead; or (if known to be dead) it shall not be knovrn who is his 
 heir; or if any trustee seized as aforesaid, or the heir of any such trustee, shall 
 neglect or refuse to convey such land for the space of twenty-eight days, next 
 after a proper deed /or making such conveyance shall have been tendered for 
 his execution by, or by an agent duly authorized by any person entitled to re- 
 quire the same ; then and in every such case, it shall be lawful for the said Court 
 of Chancery to direct any person, whom such court may think proper to appoint 
 for that purpose in the place of the trustee or heir, to convey such land to such 
 person, and in such manner as the said court shall think proper, and every such 
 conveyance shall be as effectual as if the trustee seized as aforesaid, or his heir, 
 had made and executed the same." The 9th section contains the same pro- 
 visions mutatis mutandis respecting trustees of terms for years: and the 10th 
 section respecting trustees of stock : both these two last sections omitting the 
 provision, as to the heir not being known; and the 10th section containing an 
 additional provision giving the court jurisdiction on the refusal or neglect of a 
 trustee of " stock to receive and pay over the dividends." 
 
292 THE SUBSTITUTION OF TRUSTEES 
 
 provided for by the latter act, ia order not to deprive the crown or 
 other lords of their escheat. 
 
 It will be observed, that the act makes no provision for the want 
 of a personal representative to a single, or sole surviving, trustee of 
 personal estate. This omission can occasion no practical inconve- 
 nience ; as administration may at any time be taken out, limited to 
 the trust property ; and indeed it was stated judicially by Sir E. 
 Sugden, that the distinction between the 8th and the 9th and 10th 
 sections was made purposely, as it was not intended to render ad- 
 ministration unnecessary, by supplying a personal representative, 
 but to provide only for the want of a real representative, because 
 there was no other way of supplying such a representative. (/) 
 
 Therefore, in a case where the surviving trustee of a property, 
 consisting partly of real and partly of personal estate, died intestate ; 
 and no administration had been taken out to him, and his heir was 
 out of the jurisdiction, a petition was presented under the act for the 
 appointment of new trustees ; but Sir E. Sugden, Lord Chancellor 
 of Ireland, held, that the act did not authorize the court to appoint 
 a new trustee of the personalty, but that the parties must go to the 
 Ecclesiastical Court to obtain a personal representative ; and that 
 when a personal representative was obtained, they could not apply 
 under the act to have a new trustee of the personalty appointed, as 
 the administrator would be under no disability ; and they must there- 
 fore file a bill for the purpose. And as the same person must of 
 course be trustee of both properties, his Lordship refused to make 
 any order on the petition for the appointment of a new trustee of the 
 realty. (5-) 
 
 It is to be observed, that the 18th section provides for the case of 
 a trustee of stock refusing to receive and pay over the dividends ; 
 and therefore in suck a case, a new trustee may be appointed under 
 the 22d section ; but there is no such provision in the 8th or 9th 
 sections for the case of a trustee of land refusing to pay over the 
 rents, &c.(7i) 
 
 An application for a conveyance or transfer to a new trustee under 
 the act, on the ground that the existing trustee refuses to convey, 
 may be made either where there has been an order of the court for 
 the old trustee to convey ;(«') or where the instrument creating the 
 trust contains a valid power to appoint new trustees, which has been 
 properly exercised by appointing the new trustee. (A) 
 
 (/) In re Anderson, Cas. Temp. Sugd. Coll. 247 ; Prendergast v. Eyre, 1 LI. & 
 
 27. G. 1 1 ; Robinson v. Wood, 8 Beav. 246. 
 
 (g-) Re Anderson, Cas. T. Sugd. 27. (i) See Williams v. Bird, 1 V. & B. 
 
 (A) 6 Jarm. Byth. Conv. 432, n., 3d 3, see Ex parte Foley, 8 Sim. 395; 2 
 
 ed. Sugd. Row. 532, 6th ed. 
 
 (i) Warburton v. Vaughan, 4 Y. & 
 
BY THE COURT OF CHANOEKY. 293 
 
 And in such cases the person, -whom the court appoints to convey 
 to *the new trustee, may at once execute the deed, which p^o^--, 
 had heen tendered to the refusing trustee, the attestation L J 
 clause expressing, that it was executed by him in place of the 
 refusing trustee, in pursuance of the order of the court made on the 
 petition. (Z) 
 
 It has been expressly decided in a recent case by Sir. L. Shad- 
 well, V. C, that the court has power to appoint new trustees under 
 the act, in proper cases of disability, &c., although the instrument 
 creating the trust itself contains a power for that purpose, (m) In 
 the absence of this judicial decision, there might have been conside- 
 rable doubt from the wording of the 22d section, whether the juris- 
 diction existed in such a case.(n) However, it seems that it will be 
 part of the reference to the Master in these cases to inquire, whether 
 the instrument contains any power for the appointment of new trus- 
 tees, (o) 
 
 The same learned judge has also held, that the act applies only to 
 cases where conveyances are to be made ; and therefore, where one 
 of three trustees for sale was out of the jurisdiction, his Honor re- 
 fused to appoint a person in his place, to sell, observing that the 
 course would have been to have sold, and then for the purchaser to 
 have come to the court for a trustee to convey, (p) However, it is 
 difficult to understand clearly the foundation of this distinction. 
 
 Where it is suggested, that the trustee named in the deed or will 
 has not accepted the trusts, the court will not appoint new trustees, 
 without proof that the trusts have acquired existence by being ac- 
 cepted.(g') The case of a sole trustee, or all the trustees, renounc- 
 ing, or refusing to act ab initio, is clearly not provided for by the 
 act: and the court will not appoint new trustees on petition on that 
 ground, (r) 
 
 An executor, who has assumed the character of a trustee of stock 
 or other securities, which had formed part of the assets, by setting 
 them apart for the purposes of the trust, is a trustee within the 
 operation of the act.(s) So executors, who refuse to prove the will, 
 are trustees within the act.(i) And a person who is named executor 
 in the will of a last surviving trustee, but who refuses to state whether 
 he will prove the will or not, is a trustee within the meaning of 
 
 {I) Ibid. (g) Re Clark, 1 Jur. 737. 
 
 (m) Re Fauntleroy, 10 Sim. 252; re ()-) Re Hartford, 2 Dr. & W. 292. 
 
 Roche, 1 Conn. & Laws. 306. {$) Ex parte Dover, 5 Sim. 500. 
 
 (n) See 6 Jarm. Byth. Conv. 433, n. (() Ex parte Winter, 5 Russ, 284; 
 
 (o) Re Ryley, 3 Hare, 619. Ex parte Hagger, 1 Beav. 98; re Need- 
 
 (p) Re Down, 2 Jur. 886 ; and see ham, 1 Jones & Lat. 34. 
 re Chasteney, Jao. 56. 
 
294 THE SUBSTITUTION OF TKUSTEBS 
 
 the act, and will be ordered to transfer the trust stock to new trus- 
 tees.(M) 
 
 The husband of a feme trustee for the sale of an estate, is a trus- 
 tee within the meaning of the act.(a;) 
 
 In a late case two trustees were appointed by a settlement, but 
 one of them never executed the deed, or acted in the trust ; and on the 
 death of the sole acting trustee, twenty-three years after the making 
 of the settlement, the other trustee expressly declined to act. A 
 petition was then presented under 1 Will. IV. c. 60, for the appoint- 
 ment of new trustees, but Sir E. Sugden, Lord Chancellor of Ireland, 
 refused to make the *order, on the ground that the surviving 
 L -■ trustee must be considered to have accepted the trust after 
 such a lapse of time.(?/) 
 
 Where one of several trustees is out of the jurisdiction, the court 
 will appoint a new one in his place on petition, although he has a 
 direct beneficial interest in the subject of the trust.(z) 
 
 We have already seen, that the 22d section empowers the court to 
 appoint new trustees on petition only in cases " where the recent 
 creation or declaration of the trust or other circumstances may ren- 
 der it safe and expedient" for the court to direct a conveyance or 
 transfer.(a) Therefore, even where the disability, &c., of the exist- 
 ing trustee brings the case within the preceding sections, the court 
 will not make any order upon a petition under the 22d section, for 
 the appointment of new trustees, unless the case be a plain one, and 
 the title of the parties by the recent creation of the trust, or other- 
 wise, be clearly established. (6) 
 
 And the insecure nature of the trust property is of itself no ground 
 for the interference of the court, (c) 
 
 It is of course very difficult to lay down any general rule, as to 
 what will or will not amount to a sufficiently clear case for the court 
 to act upon petition under the act : this obviously must depend upon 
 the discretion of the court, which will be controlled and governed by 
 the nature and circumstances of each individual case.(cZ) There are 
 but few decisions on the point, but on one occasion Sir E. Sugden, 
 L. C, instanced a trust created within ten years, or a simple trust 
 
 (u) Cookell V. Pugh, 6 Beav. 293. (c) Re Whitley, Cas. T. Sugd. 23. 
 
 \x) Re Ryley, 3 Hare, 614. (d) See le Merry, 1 M. & K. 677, and 
 
 (i/) Re Uniacke, 1 Jones & La- le De Clifford Estates, 2 M. & K, 624, 
 
 louche, 1. stated supra; and see also Ex parte 
 
 (2) Moore v. Winter, 12 Sim. ]61. Dover, 5 Sim. 500; re Fareswell, 2 Tur. 
 
 (a) See the 22d section, stated ante. 987. 
 
 (6) Re NichoUs, Cas. T. Sugd. 17 ; 
 re Whitley, id. 23. 
 
BY THE COUBT OF CHANCERY. 295 
 
 for A. for life, with remainder to B. in fee, as cases in which the 
 court would act.(e) 
 
 By the eleventh section of the act, it is provided that a petition, 
 whose object is to vest trust property in new trustees duly appointed 
 under a power or by the court, is to be presented either by the trus- 
 tee or one of the trustees, in whom the property is proposed to be 
 vested,(/) or by some person having an interest therein. A person 
 having an interest in part only of a trust fund, may present a petition 
 under this section. (^) 
 
 The new trustees, in order to have a sufficient interest to enable 
 them to present a petition under the act, must have been duly ap- 
 pointed either by virtue of a power created by the trust instrument, (A) 
 or by the court. Therefore a person, who is merely proposed as the 
 new trustee, has no interest to enable him to be a petitioner.(i) 
 
 The petition must be headed in the matter of the trust, and also 
 in the matter of the act of parliament :(^) although this is not essen- 
 tial to its validity. (Z) 
 
 Where the application to the court is made on the ground of the 
 existing trustee being out of the jurisdiction, and not to be found, 
 affidavits of his absence and the inquiry for him may be read at the 
 hearing, *under the 24th section of Sir E. Sugden's Act, as r*0A7-| 
 evidence of those facts. (»j) 
 
 And in all these cases of application to the court by petition, the 
 statement of the facts of the case must be corroborated by affida- 
 vit.(n) 
 
 In every case of an application to the court for the appointment 
 X)f new trustees, by petition as well as by s"\iit, the general rule of 
 practice is, that the court will not in the first instance make an order 
 for the conveyance of the property to the person proposed as the 
 new trustee ; but will refer it to the Master,(l) in the first place to 
 ascertain whether the case comes within the summary jurisdiction of 
 the court,(o) and then to approve of a proper person to be the new 
 trustee, and also (if necessary) of a proper person to convey to the 
 
 (e) ReNicholls, Cas.T. Sugd. 18, 19. (/) Ibid.; and see re Fowler, 2 Russ. 
 
 (/) Ex parte Swan, 2 Dick. 749; Se- 449. 
 
 ton Decrees, 252, 3; re Law,, 11 Law (m) Moore v. Penten, 10 Law Journ. 
 
 Journ. N. S., Chanc. 112 ; 4 Beav. 509. N.S., Chanc. 345; De Crespigny ■«. Kit- 
 
 (g) Re King, 10 Sim. 605, 607. son, id. 346, n.; S. C. 12 Sim. 161. 
 
 (h) Re Law, 4 Beav. 509. (n) See Ex parte Winter, 5 Russ. 284. 
 
 (i) Re Odell, jr., Exch. Rep. 257. (o) Re Law, 4 Beav. 509. 
 
 {k) Re Law, 11 Law Journ. N. S., 
 Chanc. 118; 4 Beav. 509. 
 
 (1) By the practice of the Court of Review, the reference is made to the re- 
 gistrar. ' 
 
296 THE SUBSTITUTION OF TRUSTEES 
 
 newly appointed trustee.(p)(l) There must then be a second petition 
 to confirm the Master's report. 
 
 In cases of charity indeed it has been said, that the court ■will 
 never appoint new trustees without a reference, although the amount 
 of the property may be very small. But in the case alluded to. Sir 
 Thomas Plumer, M. R., on account of the smallness of the property, 
 ordered that the Master should appoint the new trustees at once, 
 without coming back to the court.(g') And this was done in a recent 
 case by Vice-Chancellor K. Bruce in a private trust.(r) 
 
 In cases of bankruptcy of the existing trustee, however, the rule of 
 the court is by no means so strictly adhered to : in such cases there 
 is no necessity for a reference to ascertain the jurisdiction, which is 
 evidenced by the application itself: and it is the frequent practice of 
 the court to appoint a new trustee in the place of the bankrupt with- 
 out a reference, on affidavit of the solvency and fitness of the pro- 
 posed trustee.(s) And the smallness of the property will always be 
 a reason for dispensing with the reference. (<) And so if all parties 
 (being competent) appear, and consent to the appointment of the 
 person proposed, the court will act at once upon such an assurance.(M) 
 
 Where the application is made under the 1 Will. IV. c. 60, it is 
 the invariable practice to direct a reference in the first instance; 
 unless the case be clearly within the jurisdiction, and all the parties 
 interested consent to the proposed appointment. («) In one instance, 
 however, Sir L. Shadwell, V. C, appointed a new trustee without a 
 reference on the petition of a married woman, where the trustee had 
 r*9ft81 go'^^ *° settle in America, *on the ground that the peti- 
 *- tioner was the only person interested in the property, (y) 
 
 And where there was a power in the instrument for appointing new 
 trustees, and the power had been exercised, and a new trustee nomi- 
 nated under it, but the survivor of the old trustees refused to convey 
 to the newly appointed trustees, and the parties therefore came to 
 
 (p) Att-Gen. v. Arran, IJ. & W. 229 ; parte Beveridge, 4 D. & Ch. 455 ; Ex 
 
 re Roche, 2 Dr. & W. 287; Ex parte parte Walton, 2 M. &A. 242; Ex parte 
 
 Wish, 2M. & A. 214; re Sharrocks, 1 Inkersole, 2 Gl. & J. 230; Ex parte 
 
 M. & Cr. 31 ; re Welsh, 3 M. & Cr. Palmer, 4 Deac. 177. 
 
 292 ; re Pigott, 2 R. & M. 683 ; Ex parte it) Ex parte Wish, 2 M. & A. 214. 
 
 Anderson, 5 Ves. 240 ; Ex parte Dover, (u) Ex parte Wish, ubi supra. 
 
 5 Sim. 500; re De Clifford Estates, 2 (x) See O'Keefe d. Calthorpe, 1 Atk. 
 
 M. & K. 624, 6. 18. 
 
 (g) Att-Gen. v. Arran, IJ. & W. 229. (j/) Ex parte Shick, 5 Sim. 281 ; and 
 
 (r) Neale «. Dell, 9 Jur. 99. see re Trapp, 13 Law Journ. N. S., 
 
 («) Ex parte Page, 1 D. & Ch. 321; Chanc. 168. [8 Jur. 437.] 
 Ex parte Buffery, 2 D. & Ch. 576 ; Ex 
 
 ( 1) In the Master's report on such a reference it is not sufficient to state, that the 
 party is a trustee within the act, but the documents, which establish the trust, 
 should be stated on the face of the report. Re Purdon, 1 Dr. & W. 500. 
 
BY THE COURT OF CHANCERY. 297^ 
 
 the court under the act for the appointment of a person to convey, 
 the court adopted the appointment of the new trustees, which had 
 been made by the deed, without any reference, and directed a person 
 to be appointed to execute a conveyance to them.(2) 
 
 Where the trustee, whom it is sought to change, is an infant, the 
 order will be made upon him, to execute the conveyance or transfer 
 to the newly appointed trustee. (a) And where the trustee is a 
 lunatic, found so by inquisition, the 22d section directs that the 
 committee of his estate shall be the party to transfer the trust stock 
 to the new trustee. 
 
 Where there is a co-trustee or co-executor of the old trustee, the 
 same section provides that the transfer shall be made by such co- 
 trustee or co-executor, or by some officer'of the company whose stock 
 is the subject of the trust ; and in case of the public funds that officer 
 is to be the secretary, or deputy-secretary, or accountant-general, of 
 the Bank of England. 
 
 In other cases, under the act 1 Will. IV. c. 60, it will.be part of 
 the reference to the Master to approve of a person to convey or 
 transfer to the new trustee. (5) 
 
 Where it is part of the order that arrears of dividends shall be 
 received and paid over by the officer of the Bank, he will be directed 
 to pay them over to the new trustee, and not to the parties bene-' 
 ficially entitled.(c) . 
 
 When the Master has made his report upon the order of reference, 
 the proper course is to apply by petition(^) to have the report con- 
 firmed, (1) and that the person approved of by the Master may be 
 appointed ' the new trustee, and also that the person approved of by 
 him for that purpose may be directed to convey or assign to the new 
 trustees.(e)(2) 
 
 It seems that the Master will not exceed his powers by approving 
 of four persons to be the new trustees in the place of one surviving 
 
 (2) Ex parte Foley, 8 Sim. 395. (rf) Re Welch, 3 M. & Cr. 293; and 
 
 (a) Vide supra, re Beech, 4 Mad. 128. it must not be on motion, see Evelyn v. 
 
 (6) See re Pigott, 2 R. & M. 684; re Forster, 8 Ves. 96; Anon. 1 Y. & Coll. 
 
 Welch, 3 M. & Cr. 293. 75 ; Baynes v. Baynes, 9 Ves. 462. 
 
 (c) Re King, 10 Sim. 605. (e) See re Welch, 3 M. & Cr. 293. 
 
 (1) According to the practice of the Court of Review, where the reference is 
 to appoint a new trustee, the report does not require confirmation ; otherwise, if 
 the reference be to consider and report, who will be a proper person to be 
 appointed. Anon. 3 Deac. 223; Ex parte Mansfield, 3 M. & A. 487. 
 
 (2) Exceptions do not lie to reports on references under these statutes, but any 
 party, who is dissatisfied, may bring the report before the court by petition, when 
 it will either be confirmed, or referred back to the Master to be reviewed. Price 
 V. Shaw, 2 Dick. 732; Ex parte Swann, 2 Dick. 749; Ex parte Burton, 1 Dick. 
 395; Seton l)ecrees, 253. 
 
298 THE SUBSTITUTION OP TRUSTEES 
 
 trustee who was of unsound mind, although the original number of 
 trustees was not more than three.(/) And where the survivor of 
 J. - two original trustees ^becomes bankrupt, the court may ap- 
 
 ^ -■ point two new trustees, one in the place of the deceased one, 
 and the other of the bankrupt. (^) 
 
 The assignees of a bankrupt trustee, in whose place a new one is 
 appointed, need not join in the conveyance to the new trustee, where 
 they disclaim all interest in the property ; (A) but the bankrupt him- 
 self will be ordered to convey. (^) Where a mortgage is made to a 
 trustee who becomes bankrupt, the mortgagor must be a party to the 
 conveyance to a new trustee. (/c) 
 
 The court has jurisdiction to compel the surrender of copyholds by 
 the person it appoints to convey, and the lord must accept such sur- 
 render. (Z) 
 
 According to the general rule, the costs of trustees, occasioned by 
 an application for them to convey under any statute, will be borne 
 by the tru^t estate, in the absence of any misconduct on the part of 
 the trustees. (»j) And the 25th section expressly confers on the 
 court the power of directing such costs to be raised and paid out of 
 the estate. 
 
 Thus the necessary costs of an infant trustee, ordered to convey 
 under the statute of Queen Anne (7 Ann. c. 19), were allowed 
 him :(n) and this case is doubtless an authority on an application 
 under 1 Will. IV. c. 60. 
 
 In the case of Ex parte Brydges,(o) as reported in Cooper, Lord 
 Eldon is stated to have established a different rule with regard to 
 the costs of lunatic trustees in similar applications. His Lordship 
 is there reported to have determined, that the estate of the cestui 
 que trust must not bear the expense, but that it must be paid out of 
 the lunatic's estate, and that the rule was so. 
 
 However, if his Lordship ever in fact entertained such an opinion 
 as to the rule of practice in such cases, he certainly did not adhere 
 to it ; for in a subsequent case the same eminent judge directed the 
 whole costs of the committee of a lunatic trustee, both those of the 
 original petition and the reference and consequent and incidental 
 proceedings, to be paid by the cestui que trusts; and declared the 
 general rule to be, that the costs of the committee of a lunatic trustee 
 conveying under the statute must be paid by the cestui que trusts. 
 
 (/) Re Welch, ubi supra. (i) Ex parte Ocgill, 2 D. & Ch. 413. 
 
 (g-) Ex parte Wilkinson, 3 M. & A. Q.) Reg. v. Pitt, 3 Jur. 1028. 
 145. (m) See Ex parte Cant, 10 Ves. 554; 
 
 {h) Ex parte Walton, 2 M. & A. 242; re King, 10 Sim. 605; re Bedford Cha- 
 
 Ex parte Painter, 2 D. & Ch. 584; but rity, 2 Sw. 532. 
 see in re Remington, 3 D. & Ch. 24. (n) Ex parte Cant, 10 Vf s. 554. 
 
 (i) Ex parte Painter, 2 D. & Ch. 584. (o) Coop. 290. 
 
BY THE COURT OF CHANCERY. 299 
 
 Ex parte Brydges, therefore, ia unquestionably overruled by this 
 last decision.(p) However, it seems that the estate of a lunatic 
 mortgagee is still liable to these costs, (g') 
 
 It has been decided that a bankrupt trustee is entitled to his costs 
 of appearance on a petition, presented under the 79th section of the 
 act, for the appointment of a new trustee in his place. (r) 
 
 If an improper order be made on a petition under the act, the 
 court has jurisdiction to give the party resisting it the costs of the 
 application for that purpose. (s)' 
 
 *III.— WHOM THE COURT WILL APPOINT TO BE NEW TRUSTEE, p^gi m 
 AND THE EFEECT OF THE APPOINTMENT." L J 
 
 It has been already seen that the court will not generally in the 
 first instance appoint any particular person to be the new trustee, 
 but will refer it to the Master to inquire whether the party proposed 
 for the office is a proper person ;{£) although an immediate appoint- 
 ment may be made, where all the parties interested consent to the 
 appointment in the first instance, (m) Where the reference is in gene- 
 ral terms to approve of some proper person to be trustee, the court 
 upon application for that purpose will give leave to any individuals, 
 to whose appointment there is no apparent objection, to propose 
 themselves before the Master ;(a;) and such a direction will of course 
 have its due weight with the Master in the exercise of his discretion 
 upon the matter referred to him. 
 
 However, an unmarried woman will not be allowed to offer herself 
 as the new trustee, on the ground of the inconvenience which might 
 possibly be occasioned in the administration of the trust in the event 
 of her marriage.(2/) Neither will the old trustee, who had become 
 bankrupt, and been removed, be allowed to propose himself as the 
 new trustee, though he had obtained his certificate.(3y 
 
 (;)) Ex parte Pearse, T. &E,. 325, 7 ; [The court pays great attention to the 
 
 and see Ex parte Tutin, 3 V. & B. 149. recommendation of majority of cestui 
 
 (5) Ex parte Richards, IJ. & W. 264. que trusts. Thornburg v. Macauley, 2 
 
 (r) Ex parte Whitley, 3 M. & A. 696; Johnson, Maryl. Ch. Dec. 427.] 
 
 S. C. 1 Deac. 478. (3/^ Brook v. Brook, 1 Beav. 531. 
 
 («) Re King, 10 Sim. 605. [Though see Gibson's Case, 1 Bland, 
 
 (<) Vide supra, 196, and Seton'sDec. 138. It seems that a nun may be ap- 
 
 249. pointed. Smith v. Young, 5 Gill. 197.] 
 
 (u) O'Keeffe v. Calthorpe, 1 Atk. 18. (z) Ex parte Smith, re Dry, 3 Jur. 
 
 (x) Att.-Gen. v. Shore, 1 M. & Cr. 1129. 
 394; Att.-Gen. v. Clack, 1 Beav. 474. 
 
 1 The retiring trustee is entitled to have the accounts taken. Nott v. Foster, 
 1 Eng. L. 8i Eq. 125. 
 ^ See note ante p. 190. 
 ' Where one of several trustees refused the trust by a formal instrument, it was 
 
300 THE SUBSTITUTION OF TRUSTEES 
 
 But it will be no objection to allowing parties to propose them- 
 selves before the Master, that the same parties were previously nomi- 
 nated trustees in an illegal appointment, which was set aside by the 
 same decree that directed the reference. (a) 
 
 In a charity case, where there had been a.reference to the Master 
 to settle a scheme, and to approve of new trustees, two distinct sets 
 of petitioners having each a prima facie claim, applied to the court 
 to be allowed to attend before the Master, and propose trustees of 
 their own : Lord Cottenham, C, gave permission to both of them to 
 attend, on the understanding that only one bill of costs should be 
 allowed against the charity estate.(6) 
 
 In one case where four executors and trustees were appointed by 
 a testator, and a suit had been instituted for the administration of 
 the trust : one of the trustees was alleged, and admitted, to be inca- 
 pable of joining in the execution of the trust, and to be desirous of 
 being discharged : and Lord Camden, C, without directing the ap- 
 pointment of a new trustee, ordered the trust to be carried on by the 
 other three. (c) 
 
 Where a trustee, who had been originally appointed, by his answer 
 declined to act, and on hearing it was referred to the Master to ap- 
 point new trustees ; the original trustee afterwards agreed to act, but 
 the court refused to vary that part of the decree, although it thought 
 the master was at liberty, on statement of the circumstances, to de- 
 cline the appointment of new trustees. (ci) 
 
 If the devisees in trust for a charity die in the lifetime of the tes- 
 tator, it *has been decided that the conduct of the charity will 
 ■- -J devolve upon his heirs-at-law as trustees for that purpose. («) 
 
 Indeed in all such cases, where the legal estate devolves upon the 
 heir or other party as a constructive trustee, and the heir is willing 
 to act, and no improper conduct is suggested, there can be no ground 
 for the court to interfere, for the purpose of appointing a new trustee 
 in his place. 
 
 We have already seen that there are instances, in which the court 
 has sanctioned the appointment of two or more trustees in the place 
 of one : although there is some doubt of the propriety of this exercise 
 
 (a) Att.-Gen. v. Clack, 1 Beav. 474. (d) Miles v. Neave, 2 Cox, 159. 
 
 (6) Att.-Gen. v. Shore, 1 M. & Cr. 394. (e) Att.-Gen. v. Downing, Ambl. 571 ; 
 (c) Bennetu Honey wood, Ambl. 7 10. Att.-Gen. v. Bowyer, 3 Ves. 714. 
 
 held that he could not be reinstated while any of his co-trustees continued to act. 
 Matter of Schoenhoven, 5 Paige, 559. But that in the case of an executor; a 
 formal renunciation will not in general preclude his subsequently entering on 
 the administration, see Harrison v. Harrison, 2 Rob. Ecc. 406; Venablesij; East 
 India Co., 2 Exch. 648 ; Wood v. Sparks, 1 Dev. & Batt. 396 ; Judson v. Gibbons, 
 5 Wend. 224; Robertson v. McGeoch, 11 Paige, 640. 
 
BY THE COURT OF CHANCERY. 301 
 
 of jurisdiction, as of one of universal application. (/) And in one 
 case such an authority was expressly repudiated by the court. (^) 
 
 When a person has been appointed a trustee by the order or de- 
 cree of the court, and a conveyance or assignment of the trust estate 
 to him has been duly executed, he sustains the character of trustee 
 as completely as if he had been at first invested with it.(hy As a 
 general rule he will be considered to have taken upon himself all the 
 duties and liabilities incident to the olEce, and therefore will be in- 
 vested with all the powers and authorities requisite for its due dis-' 
 charge ; such, for instance, as the power of giving receipts ;(i) for the 
 conveyance to the new trustee binds the legal estate ; and the decree 
 of the court binds the equity. 
 
 Where, however, a power given to the original trustee is of a kind 
 that indicates a personal confidence, it will prima facie be confined 
 to the individual to whom it is given, and will not without express 
 words pass to others, to whom by legal transmission the character of 
 trustee may happen to belong : and though the estate with the trust 
 attached to it will be in the trustee appointed by the court, yet the 
 power (being one of that description) will be extinct.(A) 
 
 Therefore, where a discretionary power of selection, and the appor- 
 tionment of the trust estate among several objects, or of distribution 
 in charity, is given to the original trustees, such a power cannot be 
 exercised by the trustee in whom the estate becomes vested under 
 the direction of the c6urt.(Z) It seems indeed that a power of that 
 nature cannot be exercised even by the legal representatives of the 
 original donees, unless it be given to them in express terms by the 
 creator of the trust.(m) (1) 
 
 (/) Ante, Ch. 1 of this division ; re (/) Att.-Gen. v. Coyley, 2 Eq. Ca. 
 
 Welch, 3 M. & Cr. 293. Abr. 194; S. C. 7 Ves. 58, n., and cited 
 
 (g) Devey v. Peace, Taml. 77. 16 Ves. 47; 1 Sugd. Pow. 151, 6th edit. 
 
 (A) Cole V. Wade, 16 Ves. 44. Hibbard v. Lambe, Ambl. 309. 
 
 (i) Drayson v. Pocock, 4 Sim. 283; (m) Att.-Gen. v. Doyley, cit. 16 Ves. 
 
 2 Sugd. V. & P. 51. 47 ; Cole v. Wade, 16 Ves. 45, 6; see 
 
 (k) Per Sir Wm. Grant, M. R., in Cole Eaton v. Smith, 2 Beav. 236 ; [post, 485, 
 
 V. Wade, 16 Ves. 44. [Newman v. &c.] 
 Warner, 1 Sim. N. S. 457. See post, 
 notes to pps. 226 and 485, &o.] 
 
 (1) In a late case a testator appointed three executors and trustees with the 
 usual power of appointing new ones in case of death, &c., and he gave 300/. to 
 each of the trustees, with a declaration, that if any of them should die without 
 having acted, their legacies should go to the trustees, " who under the power in 
 his will should be appointed in their stead." Two of the trustees died in the 
 
 ' The mere appointment of a new trustee does not amount to a substitution of 
 him in prior suits pending, brought by or against old trustees. Davant v. Guerard, 
 1 Spear's Law, 242; Greenleaf v. Queen, 1 Peters' S. C. 148. See, however, in 
 Virginia, Revised Code of 1849, page 675. 
 
302 THE SUBSTITUTION OF TRUSTEES, ETC. 
 
 But where the discretionary power is of that nature, that any one 
 is capable of exercising it, as where tenants for life under a will were 
 *empowered to cut timber with the consent of four trustees, 
 '- -' the court will take upon itself the exercise of such a discretion ; 
 and in that case Lord Northington, after taking two years' time for 
 consideration, directed, that the tenant for life should be at liberty 
 to cut timber from time to time with the approbation of the Master.(M) 
 
 It has been previously observed, that where there is no power of 
 appointing new trustees in the instrument creating the trust, the 
 court cannot delegate to others its power of supplying vacancies in 
 the trust ; and therefore the trustee appointed by the court will not 
 in general be empowered to nominate others to act in his place,(o) (1) 
 although this may be done in settling a scheme for the administra- 
 tion of a charity .i^p) 
 
 Where circumstances render such a course desirable, the court, on 
 a motion in the cause, supported by an affidavit verifying the circum- 
 stances, will sometimes appoint a receiver of the trust estate, until a 
 new trustee is appointed ; — and an affidavit, that the property has 
 been misapplied, and is in danger in the hands of the existing trus- 
 tee, will be sufficient to induce the court to accede to such an appli- 
 cation.(^) And a receiver has been appointed, where the trustee is 
 guilty of laches or other misconduct in administering the trust ;(/•) or 
 becomes bankrupt ;(s) or dies or goes abroad ;(i) or declines or is 
 unable to act.(M) 
 
 (n) Hewitt v. Hewitt, Ambl. 508. (5) Middleton v. Dodswell, 13 Ves. 
 
 (0) Ante, p. 176; Bayley v. Mansell, 266; Havers v. Havers, Barn. 23. 
 
 4 Mad. 226 ; Southwell v. Ward, Taml. (r) Att.-Gen. v. Beyer, 3 Ves. 714; 
 
 314 ; Brown v. Brown, 2 Y. & Coll. 395; Bainbrigge, v. Blair, 10 Law Journ. N. 
 
 2 Sugd. Pow. 533; but see Joyce v. S. Chanc. 193. 
 
 Joyce, 2 Moll. 276. (s) Langley v. Hawk, 5 Mad. 46. 
 
 (p) Att.-Gen. v. Winohelsea, 3 Bro. (<) Tidd v. Lister, 5 Mod. 433. 
 
 C. C. 373; S. C.Seton Decrees, 131; re (u) Brodie v. Barry, 3 Mar. 695; 
 
 52 Geo. m. c. 101; 12 Sim. 262; 2 Bainbrigge v. Blair, 10 Law Journ. N. 
 
 Sugd. Pow. 533. ' S. Chanc. 103. 
 
 testator's lifetime, and, two other persons were appointed hy the court in their 
 place, in a suit for the administration of the estate. It was held by the Vice- 
 Chancellor of England, that the new trustees appointed by the court were not 
 entitled to the legacies of 300Z. Walsh v. Gladstone, 8 Jur. 51 ; 14 Sim. 2. 
 
 (1) But in a recent case, where both the trustees of a will had died in the testa- 
 tor's lifetime, and there was a suit for the appointment of new trustees. Lord Lang- 
 dale, M. R., directed, that the Master should be at liberty to insert in the 
 conveyance to the new trustees a power for them to appoint other trustees in the 
 manner and under the circumstances mentioned in the will. The will in this 
 case contained the ordinary power for the appointment of new trustees. White v. 
 White, 5 Beav. 221. And see Lampay v. Gould, 12 Sim. 426. [These cases are 
 now overruled; Holder v. Durbin, 11 Beav. 594, 18 L. J. Ch. 479; Oglander «. 
 Oglander, 2 De G. & Sm. 381; 12 Jur. 786; 17 L. J. Ch. 439; Bowles 1;., Weeks, 
 14 Sim. 591.] 
 
ACCEPTANCE OF THE OFFICE OF TRUSTEE. 303 
 
 But the court will not thus interfere -with the management of the 
 estate hy a trustee unless a sufficient reason be assigned. (a;) 
 
 Where there are two or more trustees, the court will not appoint a 
 receiver upon the death, absence, disclaimer, or misconduct, &c., of 
 some or one of them, nor as long as there remains any trustee to act 
 in the trust ; this, however, will be done by the desire or with the con- 
 sent of the remaining trustees.(2/) But a receiver will necessarily be 
 appointed, where the co-trustees cannot act through disagreement 
 amongst themselves.(s) The fact of a trustee and executor being 
 poor, or not of affluent fortune, will not be a sufficient reason for the 
 court to appoint a receiv,er.(22) But a receiver has been appointed 
 upon an affidavit, that the trustee is insolvent. (a) 
 
 *Upon the appointment of new trustees the receiver will j-^ -^ „, 
 be discharged on the application of any party interested in the L J 
 cause, although the discharge be opposed by some of the cestui que 
 trusts.{b) 
 
 DIYISION lY. [*214] 
 
 OF THE ACCEPTANCE OR REFUSAL OF THE OFFICE 
 
 OF TRUSTEE. 
 
 The mere gift of property by any mode of assurance to a person 
 upon trusts, or the nomination or appointment of a party to be 
 trustee, will not of itself invest him with the character of a trus- 
 tee: — for this purpose there must also be an acceptance of the 
 office on the part of the donee. 
 
 The law will not compel any person to accept an estate, either as 
 trustee or otherwise, against his will ; and he is consequently at 
 liberty at any time to disclaim or refuse the office, and the estate 
 to which it is annexed, provided that he has never done any act to 
 show his assent to it.^ 
 
 (a:) Barkley v. Lord Reay, 2 Hare, (2) Bagot u. Bagot, 10 LawJourn. N. 
 
 308. S., Chanc. 116. 
 
 (y) Middleton v. Dodswell, 13 Ves. (««) Hawthornethwaite v. Russellj 2 
 
 266; but see Tait v. Jenkins, 1 N. C. C. Atk. 126; Howard v. Papera, 1 Mad. 
 
 492 ; Brodie v. Barry, 3 Mer. 695; Tidd 142. 
 
 V. Lister, 5 Mad. 433; Browell v. Read, (o) Scott v. Beecher, 4 Price, 346. 
 
 1 Hare, 434. (6) Bainbrigge ii. Blair, 10 LawJourn. 
 
 N. S., Chano. 103. 
 
 ' See McCubbin v. Cromwell, 7 Gill & Johnson, 157; Trask v. Donoghue, 1 
 Aik. 370; and statutes of different states, stated ante, p. 190. 
 
304 ACCEPTANCE OF THE OFFICE OP TRUSTEE. 
 
 We will now proceed to consider, what acts of conduct of an in- 
 tended trustee will amount to an acceptance of the office : and when 
 and how he may refuse or disclaim. 
 
 CHAPTER I. 
 
 WHAT WILL BE AN ACCEPTANCE OF THE OFFICE OF 
 
 TRUSTEE. 
 
 Every gift, by deed, or will, or otherwise, is supposed prima facie 
 to be beneficial to the donee ; consequently the law presumes, until 
 there is proof to the contrary, that every estate is accepted by the 
 person to whom it is expressed to be given. (a) 
 
 Where the creation of the trust is by deed, the most obvious and 
 effectual mode of testifying the acceptance of the trust by the trus- 
 tees is their execution of the deed.' All the provisions of the in- 
 strument will then be binding on those parties, by whom it is exe- 
 cuted. Where the trust property consists of money or stock, which 
 is placed under the exclusive control of the trustees, and more espe- 
 cially if there be only a single trustee, it is peculiarly desirable 
 that he should testify his acceptance of the trusts by executing the 
 deed.(6) 
 
 Where the trust is created by will, and the same person is ap- 
 pointed executor and trustee, the probate of the will by him will be 
 an acceptance of the trusts. (c)'' 
 
 (a) Per Ventris, J., in Thompson v. rejection, or tacit refusal to act," 6 W.& 
 
 Leech, 2 Ventr. 198 ; Per Bayley, J., in S. 333.] 
 
 Townson v. Tickell, 3 B. & Al. 36 ; 5 (6) Lord Montfort v. Lord Cadogan, 
 
 Mart. Conv. 607 ; 3 Jarm. Byth. Conv. 17 Ves. 488, 9; S. C. 19 Ves. 638; 
 
 698 : 4 Cruis. Dig. 404, 6. [Wilt v. Small v. Marwood, 9 B. & Cr. 300. 
 Franklin, 1 Binn. 502; Eyrick ij. Het- (c) Mucklow v. Fuller, Jao. 198; 
 
 rick, 13 Penn. St. 494; Read «. Robin- Booth v. Booth, 1 Beav. 128 ;' Williams 
 
 son, 6 W. & S. 331; Wise v. Wise, 2 J. v. Nixon, 2 Beav. 472; See Clarke d. 
 
 &Lat. 412; King v. Phillips, 15 Ehg. Parker, 19 Ves. 1; Ward v. Butler, 2 
 
 L.&Eq.7;4KentComm.500,andnotes. Moll. 533. [Worth i). M' Aden, 1 Dev. 
 
 The rennnciation must be by "express & Batt. Eq. 209.] 
 
 ' But the signature of the deed by the trustee, is not necessary unless there be 
 some covenant, &c., on his part. Flint ij. Clinton Co., 12 N. H. 432. 
 
 ^ See Peebles iJ. Reading, 15 S. & R. 39; Worth v. McAden, 1 Dev. & Batt. 
 Eq. 209 ; Venables^. East Ind. Co., 2 Exch. 633 ; Easton v. Carter, 5 Exch. 8 ; Cum- 
 mins V. Cummins, 3 J. & Lat.64. Giving bond it would seem is sufficient, Sears 
 V. Dillingham, 12 Miss. 80. In Vanhorne v. Fonda, 5 J. C. R. 403, it was held that 
 where an executor who had never qualified, took possession of a part of the 
 personal properly and paid some of the debts he had elected to act as executor. 
 At the common law, indeed, most acts before probate are valid. See Easton v. 
 
ACCEPTANCE OF THE OFFICE OF TRUSTEE. 305 
 
 *Where the same person is appointed both executor and 
 trustee, it is difficult, though sometimes of importance, to L '^ -■ 
 determine when the office of executor has ceased, and that of trustee 
 has commenced. The rule appears to be, that if a part of the 
 assets has been clearly set apart and appropriated by the executor 
 to answer a particular trust, he will be considered to hold the fund 
 as trustee for those trusts, and no longer as a mere executor.(ci) 
 
 In the absence of any such conclusive evidence, as the execution 
 of the trust deed, or the probate of the will, the actions and conduct 
 of the person who is appointed trustee, may constitute equally bind- 
 ing proof of his acceptance of the office. 
 
 Therefore, if the persons who are nominated trustees in a deed, 
 in any way act in the management of the trust estate, they will be 
 considered to have undertaken the trust, exactly as if they had exe- 
 cuted the instrument ;(e) and the same rule obtains where the trust 
 is created by will.(/)' 
 
 (rf) Ex parte Dover, 5 Sim. 500 ; (e) Lord Montfort v. Cadogan, 17 
 
 vide post, Part II. Ch. 1, sect. 2; Phil- Ves. 488, 9; S. C. 19 Ves. 638. 
 
 lipo V. Munnings, 2 M. & Cr. 309. (/) Conyngham v. Conyngham, 1 
 
 [See Knight I). Loomis, 30 Maine, 204; Ves. 522; Doyle ■«. Blake, 2 Sch. & 
 
 Wheatley v. Badger, 7 Barr, 461 ; Wil- Lef. 231; James v. Frearson, 1 N. C. 
 
 son Estate, 2 Barr, 325.] C. 370. 
 
 Carter, 5 Exch. 8; Venables v. East Ind. Co., 2 Exch. 633; Mitchell v. Price, 6 
 J. J. Marsh. 625. It has been ruled, however, in states where an executor, in ad- 
 dition to oath and letters, is obliged to give security, that a different rule obtained, 
 and that until qualification he-has no power to act. Monroe v. James, 4 Munf. 195; 
 Mitchell V. Price, 6 J. J. Marsh. 625 ; Carter •;;. Carter, 10 B. Monr. 327; Robert- 
 son V. Gaines, 2 Hump. 381 ; Trask v. Donoghue, 1 Aik. (Verm.) 373. There- 
 fore where one of several executors had been qualified, had delivered up, before 
 probate, a note to be cancelled, believing herself to be acting in accordance with 
 the testator's desire, it was ruled that it was not binding on the others, and did 
 not amount to an acceptance. Carter v. Carter, ut supra. In Monroe v. James, 
 ut supra, a neglect to qualify by one of several executors, was held to be a con- 
 clusive renunciation ; while in Robertson v. Gaines, it was considered only prima 
 facie evidence. See also Carter v. Carter, ut supra, page 330 ; and Wood v. 
 Sparks, 1 Dev. & Batt. 396. In Miller v. Meetch, 8 Barr, 417, where nothing 
 appeared in the register's office, odier than an endorsement on the will that an 
 executor had been duly sworn, there being, however, no affidavit on record 
 thereof, nor letters testamentary, it was held insufficient proof of acceptance. 
 Where two executors, who were directed by will to sell a particular piece of land 
 to a person named, and also other land for the payment of debts, joined in the 
 conveyance of the first parcel, it was held that a purchaser from only one execu- 
 tor, of the last-mentioned land, was not precluded from showing that the other 
 executor had refused and neglected to act. Roseboom v. Mosher, 2 Denio, 61. 
 
 ' Flint u. The Clinton Comp., 12 N. H. 432; McCubbin v. Cromwell, 7 G. & J. 
 157 ; Chaplin v. Givens, Rice, Eq. 133 ; Latimer v. Hanson, 1 Bland. 51. 
 
 Where one of two executors obtains probate, the right of the other being re- 
 «served, it enures to the benefit of both; and on the death of the one proving the 
 
 20 
 
306 ACCEPTANCE OP THE OFFICE OF TRUSTEE. 
 
 And in"%uch a case a trustee cannot limit his acceptance and 
 consequent liability to any particular portion of the trust. But if 
 he act at all (though it be only as to part, and though he expressly 
 disclaim the intention of interfering generally), he will be fixed with 
 the acceptance of the entire trust, and with all the responsibilities 
 attending it.{g) 
 
 And if one of several trustees, with notice of his appointment, 
 interfere in the management of the trust property, so as to render it 
 ambiguous whether he had accepted the trust or not ; he cannot 
 afterwards get rid of his liability to account as a trustee, by alleg- 
 ing that he acted merely as the factor or agent of the cestui que 
 trust. (h) 
 
 If however one of several trustees and executors, who had never 
 proved the will, or otherwise accepted the trust, should interfere in 
 the disposition of part of the trust property, not from any intention of 
 acting in the trust, but only as agent and under the immediate direc- 
 tions of the acting trustee, he will not be considered to have accepted 
 the trust, although he may not have executed any formal renuncia- 
 tion or disclaimer.(i) 
 
 In a case, where one of two trustees and executors named in a 
 will formally disclaimed and renounced, but afterwards acted in the 
 disposition of the trust estate, as the agent of the other trustee, who 
 had accepted the trust, but who was not so competent to the ma- 
 nagement of the property ; and the renouncing party accounted with 
 the other trustee for all his receipts and proceedings in the course of 
 his dealing with the trust estate : it was held by Sir John Leach, 
 M. R., that the party who had renounced, *had not by his 
 L -^ subsequent conduct become accountable as trustee and exe- 
 cutor, and his Honor dismissed a bill as against him with costs.(i) 
 
 With regard to what acts or conduct of a trustee will be held an 
 acceptance of the trust ; it is a question of considerable nicety, and 
 one which may still be considered as not altogether settled, whether 
 the execution of a release or conveyance of the trust estate by a 
 
 (g) Doyle i). Blake, 2 Sch. & Lef. Wms. Exors. 151. [Chaplaini). Givens, 
 
 231; see Kead v. Traelove, Ambl. 417 ; 1 Rice, Eq. 154.] 
 
 and Urch t). Walker, 3 M. & Cr. 702. (i) Stacy v. Elph, 1 M. & K. 195; 
 
 [Post 221, ante 196; Vanhorn v. Fonda, Lowry v. Fulton, 9 Sim. 115; and see 
 
 5 J. C. R. 403.] Orr v. Newton, 2 Cox, 274; Balchen v. 
 
 (h) Conyngham v. Conyngham, 1 Scott, 2 Ves. jun. 678. [Carter v. Car- 
 
 Ves. 522; see Harrison v. Harrison, 1 ter, 10 B. Monr. 327; Judson v. Gib- 
 
 P. Wms. 241, n. (y), 6th ed.; S. C. 1 bons, 5 Wend. 224.] 
 
 (k) Dove V. Everard, 1 R. & M. 231. 
 
 will, a slight act of intermeddling in the surviving executor will amount to an 
 acceptance. Cummins v. Cummins, 3 J. & Lat. 64. But see Carter v. Carter, 10 
 B. Monr. 327; Mitchell v. Price, 6 J. J. Marsh. 625, contra; and note top. 214. 
 
ACCEPTANCE OF THE OFFICE OF TRUSTEE. 307 
 
 trustee, made -with the intention of disclaiming or refusing the trust, 
 will or will not amount to an acceptance of the trust hy him.* 
 
 This doctrine, which at first sight may appear somewhat paradoxi- 
 cal, was established by Lord Kosslyn in the case of Crewe v. Dicken.(?) 
 In that case, one of two surviving trustees for sale, being unwil- 
 ling to act, by deed conveyed and released the estate and all his in- 
 terest therein to the other trustee and his heirs ; and it was held by 
 Lord Rosslyn, that if the retiring trustee had merely renounced, the 
 whole estate would have been in the remaining one ; he would have 
 been the only person : but that, according to the way they had 
 managed it, he had accepted the trust, and conveyed away^ the estate : 
 and he was therefore bound to join in the receipt for the purchase- 
 money, (i) 
 
 The point came again before the court in the case of Nicloson v. 
 ■Wordsworth.(m) There one of three trustees being desirous of dis- 
 claiming the trust, executed a conveyance and release of the estate 
 to the other two trustees. The two acting trustees alone then entered 
 into a contract for the sale of part of the estate to the plaintifip, who, 
 being advised that the concurrence of the trustee, who had released, 
 was necessary to perfect his title, filed his bill against all the three 
 original trustees for a specific performance of the contract by them, 
 and to restrain an ejectment, which had been commenced in the mean 
 time.(m) 
 
 Lord Eldon in his judgment commented upon the decision of Lord 
 Rosslyn in Crewe v. Dicken, and questioned the soundness of the 
 distinction established by that case, "if," said his Lordship, "the 
 essence of the act is disclaimer, and- if the point were res integra, I 
 should be inclined to say, that if the mere fact of disclaimer is to 
 remove all difficulties, and vest the estate in the other trustees, a 
 party who releases, and thereby declares that he will not take as 
 trustee, gives the best evidence that he will not take as trustee. 
 The answer, that the release amounts to more than a disclaimer, 
 is much more technical than any reasoning that deserves to prevail 
 in a court of equity." And his Lordship subsequently observed, 
 
 (Z) Crewe «. Dicken, 4 Ves. 101. (m) Nicloson v. Wordsworth, 2 
 
 Swanst. 365. , 
 
 ? Where a testator by his will appointed A. and B. his trustees, and directed 
 that if his trustees thereby appointed, should die, or desire to be discharged from, 
 or refuse, or decline to act, it should be lawful for the surviving or continuing 
 trustee or trustees, or if there should be none such, then for the trustee so de- 
 siring to be discharged, or refusing, or declining to act, to appoint new trustees, it 
 was held that B. having declined to act except for the purpose of appointing new 
 trustees, had the power of appointing new trustees in the place of A. and B. 
 Hadley's Trust, 16 Jur. 98 ; 21 L. J. Ch. 109 ; 9 Eng. L. & Eq. 67. 
 
308 ACCEPTANCE OF THE OFFICE OF TRUSTEE, 
 
 " My opinion is, that if a person, -who is appointed co-trustee by any 
 instrument, executes no other act than a conveyance to his co-trus- 
 tees, when the meaning and intent of that conveyance is disclaimer, 
 the distinction is not sufficiently broad for the court to act upon. I 
 can find no case which has decided, nor can I see any reasons for 
 deciding, that where the intent of the release is disclaimer, the in- 
 ference that the releasor has accepted the estate shall prevent the 
 effect of it."(w) 
 
 It will be perceived on examination, that in Nicloson v. Words- 
 worth there was no direct adjudication on the point in question. 
 Lord Eldon said, that the form of the record was such, that no judg- 
 ment could then *be pronounced :(o) and it appears from the 
 L -I report, that the declaration that the trustee, who had re- 
 leased, was not a necessary party to the conveyance, was taken by 
 consent : it cannot therefore be considered as the judicial decision of 
 the court, (p) 
 
 In this state of the authorities upon this question, the point was 
 again raised in the recent case of Urch v. Walker, which came 
 before Lord Cottenham, C, on appeal from the decree of the Vice- 
 Chancellor (Sir L. Shadwell). There a testator gave a legacy of 
 1,100Z. to the defendant and another person upon trust for the 
 plaintiffs ; and then, -after making other devises and bequests, gave 
 a leasehold messuage to the same trustees, upon trusts ultimately 
 to convey to his grandson at twenty-one. The grandson became 
 absolutely entitled to this property under the trust, and the two 
 devisees in trust then executed an indenture made between them 
 and the grandson, which recited the facts, and that thereby " it be- 
 came unnecessary for (the devisees) to act in the trust declared by 
 the will, and in fact they never intermeddled therein ; but inasmuch 
 as the legal estate in the said messuage and lands was still outstand- 
 ing in them, by virtue of the will, they had consented, at the request 
 of the grandson, to convey such estate to him in manner thereinafter 
 mentioned." And the two devisees then, "in pursuance and per- 
 formance of the agreement, and of the trusts so reposed in them, 
 granted and released the messuage, &c., to the grandson in fee." 
 There was no proof that the trustees had in any other manner acted 
 in or accepted the trust. The bill was filed by the persons interested 
 in the legacy of 1,100Z., praying that the defendant, who was the 
 survivor of the two trustees named in the will, might be declared per- 
 sonally liable to make good that legacy with interest, on the ground 
 that he had accepted and acted in the trusts. The decree of the 
 Vice-Chancellor declared, that he had accepted the trusts of the will, 
 
 (n) Nicloson v. Wordsworth, 2 (p) See Lord Cotlenhara's observa- 
 Swanst. 370, 1. lions in Urch «. Walker, 3 M. & Cr. 
 
 (o) 2 Swanst. 369. 710. 
 
ACCEPTANCE OF THE OFFICE OF TRUSTEE. 309 
 
 and directed an inquiry, whether, but for his wilful default, he might 
 have received the 1,100Z. legacy ; and that decree was affirmed on 
 the appeal by the Lord Chancellor.(g') His Lordship said, " The 
 question is, whether execution of this deed was not of itself an ac- 
 ceptance of the trusts of the will. I think it would be sanctioning 
 a gross deceit on the part of the appellant, if it were to be construed 
 otherwise, because it was for the purpose of giving effect to the de- 
 vise of the property. If the trustees never did accept the property, 
 then they had no means of doing that which they professed to do, and 
 which by this deed they held out that they were doing."{r) (1) 
 
 It is not easy upon any principle to reconcile these conflicting au- 
 thorities. According to Lord Eldon's observations in Nicloson v. 
 Wordsworth, a conveyance executed by a person who is appointed 
 trustee, only with the meaning and intent of disclaiming, will not in 
 equity differ in its effects from an ordinary disclaimer : and ^ 
 his Lordship endeavored to reconcile* his opinion with Lord ■- J 
 Rosslyn's decision in Crewe v. Dicken, on the ground that in that case 
 the individuals were particularly described, and that the directions for 
 the form of the receipt were such as made it impossible that a proper 
 receipt could be given, unless the trustee who had disclaimed joined. (s) 
 
 It is to be remarked, however, that, according to the report of 
 Crewe v. Dicken in Vesey, Lord Rosslyn does not seem to have 
 founded his decision on those particular circumstances, but rather to 
 have rested it on the general principle, that the execution of the con- 
 veyance of itself amounted to an acceptance of the trust ;(<) a principle 
 which appears to have been expressly recognised and adopted by 
 Lord Cottenham in Urch v. Walker.(M) 
 
 Moreover, the dicta of Lord Eldon in Nicloson v^ Wordsworth, 
 although entitled to the greatest possible weight jas proceeding from 
 such a quarter, were certainly extra-judicial ; and their authority has 
 been much shaken, if not altogether overruled, by what fell from 
 Lord Cottenham in the case of Urch v. Walker.(a;) 
 
 On the whole, therefore, a trustee, whose object is to disclaim, can- 
 not be advised to execute any deed, purporting to be a conveyance or 
 release of the trust property, lest by so doing he should be held to 
 have fixed himself with the acceptance of the trust, which he attempts 
 to repudiate. Although where such a deed may have been executed 
 solely with the purpose of disclaiming, it might possibly be still open 
 
 (9) Urch V. Walker, 3 M. & Cr. 702. (t) 4 Ves. 100. 
 
 (r) 3 M. & Cr. 708. (u) 3 M. & Cr. 708. 
 
 («) See 2 Swanst. 370; sad vide, con- {x) See 3 M. & Cr. 710. 
 tra Adams v. Taunton, 5 Mad. 435. 
 
 (1) A similar distinction as to the effect of a disclaimer or a surienderof a copy- 
 hold was recognised by the Court of Common Pleas, in the recent case of Doe 
 d. Wyatt V. Hogg, 5 Bing. N. C. 564. 
 
310 ACCEPTANCE OF THE OFFICE OF TRUSTEE. 
 
 to contend (although at considerable disadvantage) that such an act 
 would not amount to an acceptance of the trust. 
 
 It is scarcely necessary to advert with any particularity to the va- 
 rious other acts on the part of a person appointed trustee, -which have 
 been held to amount to an assumption of the office. If such a per- 
 son with notice of his appointment continue to receive the income 
 arising from the trust estate ;(?/) or execute a power of attorney;(2) 
 or sign a joint draft or order,(a) to enable another person, who was 
 also named a trustee, to receive the assets ;[z) or raise and invest a 
 legacy ■,{b) or give notice to the occupying tenant of the trust estate 
 to pay the rent to him ;(e) or bring an action respecting the trust 
 property ;(d) or interfere generally in the management of the trust 
 property, by ordering it to be sold, and being present at the sale in 
 the capacity of trustee, or giving directions implying authority or 
 ownership, or by frequently making inquiries of the acting trustee as 
 to the affairs of the trust ;(e) any one of these facts, if established in 
 evidence, will doubtless fix the party with the acceptance of the trust 
 and all its responsibilities ; unless, indeed, as has been already stated, 
 those acts be done not in the character of a principal, but solely as 
 the agent and on behalf of the acting trustee. (/) 
 r*21Q1 *^° where a person is present when the instrument is read 
 by which he is made a trustee, and makes no objection to the 
 appointment ; that, though scarcely conclusive, will form a material 
 item of evidence to prove his assent to the trust. (^) But the mere fact 
 of a person named trustee taking possession of the deed for the purpose 
 of keeping it in safe custody until another trustee can be appointed, 
 is not enough to fix the party with the acceptance of the trust. (^) It 
 is, perhaps, unnecessary to remark, that where a party has once fixed 
 himself by any means with the acceptance of a trust, he cannot after- 
 wards by disclaimer renounce or repudiate the duties and responsi- 
 bilities of the office, (zy 
 
 (2/) Conyngham v. Conynghara, 1 375,7. [Sheppard w. McEver, 4J. C.R. 
 
 Ves. 522. 136; see 3 McLean, 67.] 
 
 (z) Harrison v. Graham, 1 P. Wms. (/) Dove v. Everard, 1 R. & M. 231; 
 
 241, n., 6th edit.; S. C. 1 Wms. Exors. Orr v. Newton, 2 Cox, 274; Stacy «. 
 
 151 ; Hanbury v. Kirkland, 3 Sim. 265. Elph, 1 M. & K. 195; Lowry r. Fulton, 
 
 (a) Saddles;. Hobbs, 2 Bro.C.C.114; 9 Sim. 115; Balchen v. Scott, 2 Ves. 
 Broadhurst v. Balguy, 1 N. C. C. 16. jun. 678. [Ante, 215]. 
 
 (b) Doyle D.Blake, 2 Sch.&Lef. 231. (g-) James v. Frearson, 1 N. C. C. 
 
 (c) Lord Montfort v. Lord Cadogan, 375. 
 
 17 Ves. 487. (h) Evans v. John, 4 Beav. 35. 
 
 (d) Lord Montfort v. Lord Cadogan, (i) Conyngham v. Conyngham, 1 
 17 Ves. 489. [Penny v. Davis, 3 B. Ves. 522 ; Read v. Truelove, Ambl. 417 ; 
 Monroe, 314.] Doyle v. Blake, 2 Sch. & Lef. 231; 
 
 {e) James v. Frearson, 1 N. C. C. Stacy v. Elph, 1 M. & K. 195. 
 
 ■ Sheppard v. McEver, 4 J. C. R. 136 ; Cruger v. Halliday, 11 Paige, 319; Per- 
 
AOOBPTANCE OF THE OFFICE OF TRUSTEE. 311 
 
 Parol evidence of admissions and conversations are admissible 
 against a party for the purpose of proving his acceptance of a trust ;(4) 
 but where persons are appointed general trustees and executors by 
 will, parol evidence of the testator's conversations cannot be received 
 on their behalf,, in order to show, that it was his intention that they 
 should only act as to part of the property. (Z) 
 
 Where the defendant by his answer denies the truth of the facts 
 alleged by the bill as evidence of his having accepted the trust, the 
 court will not at the hearing decide that point, although the facts as 
 alleged by the bill are borne out by the evidence of two witnesses ; 
 but it will direct an inquiry before the Master as to the fact of the 
 defendant having accepted the trust.(TO) 
 
 The rule is otherwise, where the fact, from which the acceptance 
 of the trust is drawn as a legal consequence, is admitted, but the legal 
 conclusion denied, as in the case of the execution of a release for the 
 purpose of disclaiming. In that case no reference is requisite, but 
 the court will itself decide on the point at onee.(w) 
 
 The court will presume the acceptance of a trust by the trustee 
 named in the instrument after the lapse of many years without any 
 express disclaimer or refusal by him ; although he may never have 
 executed the trust deed, or otherwise by any positive act accepted or 
 interfered in the trust. And this presumption has been made after 
 an interval of twenty-three or even thirty-four years.(o)(l)^ 
 
 (4) Urch V. Walker, 3 M. & Cr. 703; 377; see Urch v. Walker, 3 M. & Cr. 
 James v. Frearson, 1 N. C. C. 375. 707. 
 
 (/) Doyle V. Blake, 2 Sch. & Lef. 240. (n) Urch v. Walker, 3 M. & Cr. 702. 
 (m) James v. Frearson, 1 N. C. C. (o) Re Uniacke, 1 Jones & Lat. 1; re 
 
 Needham, ibid. 32. [See post, 221, n.] 
 
 (1) The London Jurist, of the 2d of August, 1845 (No. 447, vol. 9), thus com- 
 ments on these two decisions of Lord Chancellor Sugden: — "It is clear, that in 
 this case (Re Needham), the legal estate was in the trustee until disclaimer. 
 And if the Lord Chancellor had merely considered him as having the dry legal 
 estate, it is submitted, that he would have ordered him to assign or disclaim an 
 order which would not have necessarily implied that he was clothed with the 
 trusts; but the order, that he should assign, without more, is consistent with the 
 expression, that the court 'must presume that he accepted the trust,' and shows 
 that the court actually fastened the trust upon the trustee by force of the pre- 
 
 kins V. McGavish, 3 Hey. 265; Jones v. Stockett, 2 Bland, 409; Strong v. Willis, 
 3 Florida, 124; Chaplin -u. Givens, 1 Rice, Eq. 133; Latimer i). Hanson, 1 Bland, 51. 
 ' Where a conveyance had been of record more than twenty-five years, and 
 there had been a possession by the cestui que trust in accordance with the deed, 
 it was held, that an acceptance by the trustee, though a lunatic, might be pre- 
 sumed. Eyrich v. Hetrioi, 13 Penn. St. R. 493. See Penny v. Davis, 3 B. Monroe, 
 314. So it seems where a recorded conveyance had been signed by the trustees, 
 after twenty-five years. Lewis?;. Baird, 3 McLean, 65. Qtter^/ as to this presumption, 
 where the trustee is ignorant of the trust. See Read v. Robinson, 6 W. & S. 333. 
 
312 THE REFUSAL OE THE OFFICE OF TKUSTEB. 
 
 [*221] *CHAPTEE II. 
 
 OF THE EEFUSAL OK DISCLAIMER OF THE OFFICE OF 
 
 TRUSTEE. 
 
 I. When a Trustee mat Dis- III. The Effect of a Disclaim- 
 
 CLAIM [221]. ER [225]. 
 
 II. How HE MAT Disclaim [223]. 
 
 I.— WHEN A TRUSTEE MAY DISCLAIM. 
 
 There has been already occasion to remark, that the law does not 
 force any one to accept a gift of an estate, whether made in trust or 
 otherwise ; and that it is therefore competent for a person appointed 
 trustee to refuse both the estate and the office attached to it, pro- 
 vided he has done nothing to deprive himself of that right.(a) 
 
 It has been seen, moreover, that if a party have once by any means 
 accepted the trust, the effect of such an acceptance is conclusive; 
 
 (a) Ante, p. 214; Sheph. Touchst. Hawkins v. Kemp, 3 East, 410; Denn 
 285, 318; Smith v. Wheeler, 1 Ventr. i;. Judge, 11 East, 288; Townson v. 
 128 ; Thomson v. Leech, 2 Ventr. 198 ; Tickell, 3 B. & Aid. 31. 
 
 sumption afforded by lapse of time, and neglect to disclaim. Assuming the de- 
 cision to be good law, the question is, to what, if any, extent, the doctrine is 
 applicable to cases of trust generally, as distinguished from the case of a trust 
 presumed merely for the purpose of a petition, under the 1 Will. IV. c. 60. 
 
 In the first case, the court did not necessarily decide, that the trustee must be 
 presumed to have accepted the trusts, but only that it would not, on petition, 
 decide that he had not. But, in the second, it seems, as we have shown, 
 to have actually clothed him with the trusts by making a substantive order 
 upon him, incompatible with his being anything else than actual trustee. It 
 seems difficult, therefore, to distinguish this from the general case. On the 
 other hand, it must be observed, that presumption of law being an inference 
 founded on a specific state of circumstances, there may be a difference between 
 presuming acceptance of a trust, on the ground of lapse of time, without 
 disclaimer, where the object of the presumption is merely to detemine whether 
 a new trustee is, or is not, requisite ; and, if he be requisite, to vest in him, 
 beyond the possibility of doubt, the trust estate: and presuming such acceptance 
 generally, where the object is, or may be, to fasten upon alleged trustees 
 the liabilities of implied breaches of trust. The court would be, in the one 
 sort of case, astute to raise the presumption for the benefit of all parties ; 
 and in the other, it might be, on the contrary, astute to avoid raising a presump- 
 tion merely for the purpose of fastening a legal liability on a person morally inno- 
 cent. We leave the difficulty, however, to our learned readers; regretting only, 
 that a doctrine of so new a kind, and the consequences of which it may not be 
 easy to foresee, should have been laid down." T. 
 
THE REFUSAL OF THE OFFICE OF TRUSTEE. 313 
 
 and he cannot afterwards "by renunciation or disclaimer throw off, or 
 repudiate, the duties and responsibilities of the office.(S)* 
 
 A disclaimer in writing has in itself "no operation ; it is merely 
 useful, as being the. most perfect and convenient evidence of the re- 
 fusal of the donee. Therefore it is immaterial at what time the 
 formal instrument of disclaimer is executed, — the actual disclaimer 
 or refusal of the estate will be held to have been made at the time of 
 the gift, if the disclaiming party have never done any act, inconsis- 
 tent with a refusal of the estate.(c) However, it is unquestionably 
 advisable, that the disclaimer should be made at the earliest period 
 after the creation of the trust. 
 
 One of two persons named executors and trustees who had never 
 acted, may renounce and disclaim after the death of the acting trus- 
 tee ; and it is immaterial that the party so disclaiming is the last 
 surviving trustee, (d) 
 
 It does not appear to have been ever directly decided, whether the 
 heir or personal representative of a trustee, who during his life had 
 never acted or assented to the trust, can disclaim the trust after his 
 death. The question was raised in the case of Goodson v. Ellison.(e) 
 There, by indenture, made in the year 1767, a fine was covenanted 
 to be levied of certain lands to the use of Richard Ellison and Ms 
 heirs on certain trusts. The fine was levied ; and Richard Ellison 
 died intestate in 1774, leaving *his brother his heir-at-law : r*2221 
 the brother afterwards died intestate, leaving his two daugh- 
 ters the defendants his co-heiresses at law. In the year 1822, the 
 bill was filed against them as the co-heiresses of Richard Ellison, by a 
 person who had purchased a portion (consisting of two-thirds) of the 
 trust estate from the parties in whom the beneficial interest had 
 become vested, and it prayed, that the defendants might be decreed 
 to execute a conveyance to him of those two-thirds. The defendants 
 by their answer stated, that their ancestor Richard Ellison never 
 
 (6) Ante, p. 219; Conyngham v. Co- (c) 5 Mart. Conv. 607, 8 ; see Stacey 
 
 nyngham, 1 Ves. 522; Reed v. True- v. Elph, 1 M. & K. 199. 
 
 love, Ambl. 417 ; Doyle v. Blake, 2 Sch. (d) Stacey v. Elph, 1 M. & K. 195, 9. 
 
 & Lef. 231 ; Stacey v. Elph, 1 M. & K. ' (c) Goodson v. Ellison, 3 Russ. 583, 7. 
 195. 
 
 ' Drane v. Gunter, 19 Alab. 731 ; Sheppard v. McEver, 4 J. C. R. 136 ; Cruger 
 V. Halliday, 11 Paige, 314; Perkins v. McGavork, 3 Heyw. 265; Jones i). Strebett, 
 2 Bland. 409; Strong v. Willis, 3 Florida, 124; Latimer v. Hanson, 1 Bland. 51 ; 
 Chaplin v. Givens, 1 Rice, Eq. 133. Even a provision in a will for the appoint- 
 ment of new trustees, in case the number should be reduced by death, removal 
 from the United States, or otherwise, does not authorize a trustee to resign. Cruger 
 V. Halliday, ut supr. There are various statute provisions, in most of the States, 
 enabling trustees who have accepted or acted as such, to resign, which will be 
 found stated ante, p. 190. 
 
314 THE REFUSAL OP THE OFFICE OF TKUSTEE. 
 
 accepted the trust, and referred to several transactions of importance 
 ■with respect to the property since the execution of the deed of 1767, 
 in which the concurrence of any person as trustee had not been re- 
 quired ; but they concluded with an intimation (wholly unsupported 
 by evidence), that they themselves had a beneficial interest in the 
 estate. The title of the parties of whom the plaintiff' had purchased 
 to the beneficial interest was clearly established : there does not 
 appear to have been any evidence as to the acceptance or refusal of 
 the trust by Richard Ellison or his representatives. The point, that 
 the trust had never been accepted by the ancestor of the defendants, 
 though raised by the answer, does not appear to have been pressed 
 in argument by the defendant's counsel; and Lord Gifford, M. R., 
 in his judgment did not even allude to that part of the defence, but 
 treated the case as one of a capricious refusal on the part of trustees 
 to convey, and decreed against them with costs. (e) This decree was 
 reversed on appeal by Lord Eldon, on the ground that a trustee could 
 not be required to convey the trust estate in difierent parcels. His 
 Lordship alluded in his judgment to the question, raised by the an- 
 swer, as to the non-acceptance of the trust, but gave no opinion on 
 the point. The case therefore cannot be considered an authority 
 upon the present question. 
 
 However, in the absence of any express decision on the subject, it 
 is submitted, that upon principle a disclaimer by the heir or personal 
 representative of a donee in trust may well be supported, where the 
 original donee has done no act in his lifetime to testify his accept- , 
 ance of the trust. Wherever such a question could arise, it would 
 almost invariably be found, that the trust estate is expressly limited 
 to the heir or representative of the original nominee (as indeed was 
 the case in Goodson v. Ellison) ; and where the persons to take the 
 estate by representation to the original trustees are so designated, 
 there does not seem to be any valid reason why they should not also 
 take the power to repudiate the gift, equally with their original 
 trustee, provided that that power has not been defeated by any pre- 
 vious act of the latter. And even where there are no such words of 
 limitation of the trust estate, the estate of the heir or personal re- 
 presentative is merely a continuation of the previous estate ; and as 
 part of that estate consisted of the power or right to call the office 
 of trustee into existence by any act of acceptance, or to repudiate it 
 by a proper act of dissent, the continuation of the estate in the heir 
 or representative would not be perfect if it came to them shorn of 
 that power or right. The argument derived from the absurdity and 
 injustice of forcing a person to accept an estate against his will ap- 
 
 (e) Goodson v. Ellison, 3 Russ. 583, 7. 
 
THE REFUSAL OE THE OEEIOB OF TRUSTEE. 315 
 
 plies with equal force to an heir or personal representative, as to the 
 original donee.^ 
 
 *It is well known to have been long established, that an i-^ooon 
 executor may accept the executorship of his own testator, but L J 
 at the same time decline that of another person, to whom his tes- 
 tator was executor ;(/) and though not altogether an analogous case, 
 that rule would seem to be strongly in favor of the power of an heir 
 or representative to disclaim a trust, which had never been accepted 
 by the principal. 
 
 Where the legal fee has once become vested in the original trustee 
 by his act or assent during his life, the law casts the estate upon the 
 heir immediately upon the death of the ancestor. (^) It is, there- 
 fore, no longer competent for the heir to repudiate by a simple dis- 
 claimer the estate, which is already vested in him ; although he would 
 unquestionably have the right to come to the Court of Chancery, in 
 order to be relieved from the trust thus cast upon him.^ 
 
 Where the subject-matter of the trust is personal estate, the probate 
 of the will of the trustee immediately vests in the executor all his tes- 
 tator's trust estates : and there does not appear to be any power for 
 an executor on taking probate to disclaim the acceptance of any 
 estate vested in his testator as trustee ; although the analogous case of 
 his power to refuse an executorship vested in his testator, might pos- 
 sibly seem to sanction the existence of such a power. Where the 
 trustee dies intestate, administration if granted generally of all the 
 testator's effects will have the same effect as the probate of his will. 
 But in these cases the executor or administrator will doubtless be en- 
 titled to come to the court to be relieved from the trust, and to have 
 other trustees appointed in his place. 
 
 If the heir or personal representative of the original trustee be so 
 named in the trust instrument, as to take by purchase at his death, 
 he may doubtless disclaim in the same manner as the trustee origi- 
 nally appointed might have done ; and whether the original trustee 
 has accepted the trust or not. 
 
 </) Hayton v. Wolfe, Cro. Jac. 6 
 Wangford v. Wangford, Freem. 52) 
 Wms. Exors. 153. [Worth i;. MoAden, (g) Co. Litt. 9, a; 3 Cruis. Dig. 318. 
 
 ' But in King v. Phillips, 15 Eng. L. & Eq. 7, the survivor of several trustees, 
 who was not shown himself to have accepted or proved the will, but who, on 
 the other hand, had never disclaimed, after the lapse of seventeen years, de- 
 vised in general terms all his mortgage and trust estates to two persons, who 
 proved his will and acted under some of its trusts, but who denied all knowledge 
 of the former trust and disclaimed, it was held that the legal estate was in them, 
 and that they were necessary parties to a suit with reference thereto. 
 
 2 See Rev. Stat. Maine, tit. " Testamentary Trustees," Ch. III., § 5 ; and of New 
 York and Virginia, &c., ante. p. 190. 
 
 </) Hayton v. Wolfe, Cro. Jac. 614; 1 Dev. & Batt. Eq. 199; Mitchell v. 
 Wangford v. Wangford, Freem. 521 ; 1 Adams, 1 Ired. Eq. 298.] 
 
316 THE REFUSAL OF THE OFFICE OF TRUSTEE, 
 
 Some doubt appears to have arisen in practice, as to whether the 
 77th sect, of the Fines and Recoveries Act (3 & 4 Will. IV. c. 74), 
 authorizes a feme, coverte trustee to disclaim by a deed acknowledged 
 according to the act : although it seems to be the better opinion that 
 she may so disclaim ; for before the 'act a feme coverte trustee might 
 have disclaimed by fine. In the Irish Fines and Recoveries Act 
 (4 & 5 Will. IV. c. 92), this doubt has been removed by the express 
 introduction of the word "disclaim" into the 68th sect., which cor- 
 responds with the 77th sect, of the English Act.(A) 
 
 II.— HOW A TRUSTEE MAY DISCLAIM. 
 
 As a gift is not perfect at law until ratified by the assent of the donee, 
 and a disclaimer operates merely as evidence, that such assent was 
 never given, and that the estate consequently never vested in the 
 donee ;(i) it would seem to follow, that a simple expression of dissent 
 by the donee, though it were only by a parol declaration, would be 
 sufficient to avoid the gift. 
 
 *Accordingly it has been long established, that a parol dis- 
 L -' claimer of a gift, either by deed or will, of copyholds, or 
 leaseholds, or chattels personal, would be sufficient ;(^) and authorities 
 are also to be found in favor of the validity of a parol disclaimer of a 
 similar gift of freeholds.^) 
 
 But the expression of refusal must be unequivocal ; and must ex- 
 tend to a renunciation of all interest in the property : and if they are 
 coupled with a claim to the estate, although made in a totally distinct 
 character, they will not amount to a disclaimer, (tw) 
 
 Again, the conduct of a party may amount to a disclaimer, although 
 there may not be any formal declaration of dissent either in writing, 
 or by parol. As, for instance, where one of several devisees in trust 
 purchased part of the trust estate, and took a conveyance from the 
 
 {h) See 4 Cruis. Dig., by White, cited in note. [See as to parol renun- 
 
 19, n.; 7 id. App. 12, 13. elation by an executor, Thompson v. 
 
 (i) Townson t). Tickell, 3 B. & Al. Meek, 7 Leigh, 419; Eoseboom v. 
 
 31; Stacey v. Elph, 1 M. & K. 198. Mosher, 2 Denio,61; Coram.iJ.Mateer, 
 
 [Peppercorn v. Wayman, 13 Eng. L. 16 S. & R. 416.] 
 
 & Eq. 199.] Q) Thomson v. Tickell, 3 B. & Al. 
 
 (k) Bonifant v. Greenfield, Cro. Eliz. 39 ; Per Holroyd, J., Doe d. Smith v. 
 
 80; Smith v. Wheeler, 1 Ventr. 128; Smith, 6 B. & Cr. 112; Shep. Touch. 
 
 Thomson v. Leech, 2 Ventr. 198 ; Rex 452 ; Bingham v. Clanmorris, 2 Moll. 
 
 V. Wilson, 5 Man. & K. 140; Shep. 253. 
 
 Touch. 285 & 452; and see Small v. (m) Doe v. Smith, 6 B. & C. 112. 
 
 Marwood, 4 Man. & R. 190, and cases [See Judson v. Gibbons, 5 Wend. 224.] 
 
THE BEFUSAL OF THE OFFICE OF TRUSTEE. 317 
 
 devisee for life, and the heir of the testator, in T^hom the estate 
 could have vested only by the disclaimer of the trustees.(n) 
 
 However, as was observed by Sir John Leach, M. R., in the case 
 of Stacey v. Elph,(o) " it is most prudent that a deed of disclaimer 
 should be executed by a person named trustee, who refuses to accept 
 the trust ; because such deed is clear evidence of the disclaimer, and 
 admits of no ambiguity. "(o)' 
 
 In the case of Townson v. Tickell,(^) it was contended that where 
 the freehold was in question a dissent or disclaimer could be made 
 only in court by matter of record; however, the Court of King's 
 Bench decided in that case, that a renunciation by deed under the 
 hand and seal of the donee was a sufficient disclaimer ; and the law is 
 now clearly so established. (p) 
 
 In the same case Holroyd, J., said, that the disclaimer need not be 
 even by deed •,{q) and that opinion, though certainly extrajudicial in 
 the particular case, seems to be well founded on principle, and is also 
 supported by other authorities, implying that a refusal of a gift, tes- 
 tified by any written instrument, or an answer in Chancery, will be 
 sufficient, although probably not so convenient for title, (r) 
 
 However, it is obviously of the last importance for a trustee, who 
 is desirous of disclaiming, as well as for the other parties interested, 
 to avoid the possibility of any future question as to the sufficiency or 
 effect of the disclaimer. With this view a trustee can never be ad- 
 vised to trust to the sufficiency of a verbal refusal, or even to one con- 
 tained in a simple writing ; but the dsiclaimer should be made by 
 deed under his hand and seal, and as soon as possible after the ap- 
 pointment is made known to him ; and the most advisable form of 
 such an instrument is a deed poll, and not an *indenture be- r:K99ri 
 tween the disclaiming party and his co-trustees or cestui que 
 trusts, to preclude any question as to the instruments operating as a 
 conveyance.[s) 
 
 (n) Stacey v. Elph, 1 M. & K. 195, Sw. 369; Adams v. Taunton, 5 Mad. 
 
 8. [Ayres v. Weed, 16 Conn. 291; 435; Bingham v. Clanmorris, 2 Moll. 
 
 Thornton v. Winston, 4 Leigh, 152; 253. 
 
 ante, note to p. 214. May be presumed (5) Townson d. Tickell, ubi supra. 
 
 after 20 years' neglect to qualify or (r) 5 Mart. Conv. 608; Stacey v. 
 
 act. Man v. Peay, 2 Murph. 85.] Elph, 1 M. & K. 198; Miles v. Neaves, 
 
 (0) Stacey v. Elph, 1 M. & K. 199. 1 Cox, 159; Sherratt v. Bentley, 1 R. & 
 
 (p) Townson v. Tickell, 3 B. &. Aid. M. 655 ; Norway v. Norway, 2 M. & K. 
 
 31 ; Begbie v. Crook, 2 Bing. N. C. 70 ; 278 ; Bray v. West, 9 Sim. 429. 
 
 and see Nicloson v. Wordsworth, 2 (s) 3 Jarm. Byth. Conv. 704, 3d. edit. 
 
 ' In Judson v. Gibbons, 3 Wend. 224, it was held, that a trustee might execute 
 at any time, though there had been a previous refusal ; it was necessary that he 
 should have released or executed a deed of disclaimer. And see McCubbin v. 
 Cromwell, 7 G. & J. 165. 
 
318 THE REFUSAL OF THE OFFICE OF TEUSTBB. 
 
 The greatest care, moreover, should be taken in the framing and 
 ■wording of the deed of disclaimer, lest its execution should produce 
 a directly contrary effect to that intended by the party, and (as in 
 the cases of Urch v. Walker, and Crewe v. Dicken) should fix him 
 ■ffith the acceptance of the trust, which it was his object to renounce. 
 
 For this purpose the deed should merely recite the deed or will, 
 by which the disclaiming party was appointed trustee; and after 
 stating that the disclaiming party had never executed the instrument 
 (if a deed), and had never assented to or accepted or acted in the 
 trust, and never intended to do so ;(<) it should witness, that he had 
 and thereby did absolutely renounce and disclaim the estate and trust 
 expressed to be given or reposed in him by the deed or will. The 
 introduction or addition of any release or conveyance of the trust 
 estate to the co-trustees or any other party, or the addition of any 
 expressions, which could be construed to have that operation, should 
 be carefully avoided. For this reason also the disclaimer should be 
 made simply and absolutely, and should not be expressed to be made 
 unto the co-trustees or cestui que trusts, as is sometimes done. 
 
 In the case of Nicloson v. Wordsworth, Lord Eldon intimated an 
 opinion, that where there was a conveyance to uses, a disclaimer 
 could only be made by release with intent to disclaim.(M) This, 
 however, is a distinction which does not appear to have been attended 
 to in practice ; and it is certainly difficult to discover any solid foun- 
 dation on which it rests. 
 
 Where a trustee has never accepted or acted in the trust, he will 
 not be precluded by mere lapse of time from executing a valid dis- 
 claimer, (a;) But where no disclaimer is executed, the acceptance of 
 the trust will be presumed after the lapse of time, as after thirty-four 
 years,(«/) or even twenty-three years.(s) This presumption, like 
 other presumptions, may of course be rebutted by the execution of a 
 deed of disclaimer, or other sufficient evidence of the refusal of the 
 trust. 
 
 III.— THE EFFECT OF A DISCLAIMER BY A TRUSTEE. 
 
 Where the person who is appointed trustee makes a proper refusal 
 or disclaimer, the effect is that all parties are placed precisely in the 
 same situation relatively to the trust property, as if the disclaiming 
 
 (0 See Urch v. Walker, 3 M. & Cr. (a:) Stacey p. Elph, 1 M. & K. 195; 
 709. see 5 Mart. Conv. 608. 
 
 (u) Nicloson i;. Wordsworth, 2 Swanst. (y) Re Needham, 1 Jones & Lat. 34. 
 372. (2) Re Uniacke, 1 Jones & Lat. 1. 
 
 [See ante, p. 219.] 
 
THE REFUSAL OF THE OFFICE OF TRUSTEE. 319 
 
 party had not been named in the trust instrument, whether it be a 
 deed or will. (a) 
 
 Therefore, where a sole trustee, or all the trustees, disclaim a 
 devise in trust, the legal estate will vest in the heir of the devisor ;(J) 
 and if the *person disclaiming be one of two or more trustees, p^noo-i 
 the entire estate is vested in the other trustee or trustees.(c)^ L -' 
 
 Whenever the disclaimer may be made, if it be valid at all, it will 
 have relation back to the time of the gift ; therefore, although no dis- 
 claimer is executed until after the death of one or more of the co- 
 trustees, yet the estate will vest in the representative of the deceased 
 trustee, or of the survivor of the deceased trustees, exactly as though 
 the person disclaiming had never been named as a trustee.(ci) But 
 we have seen, that in the absence of any disclaimer, the acceptance 
 of the trust will be presumed after lapse of a considerable time. 
 
 Where one of two or more trustees disclaims, the remaining 
 trustees or trustee will take not only the entire legal estate, but 
 also all the powers and authorities vested in the trustees as such, 
 and which are requisite for the administration of the trust. There- 
 fore, they will be able of themselves to grant leases of the trust 
 estate,(e) to sell and convey to the purchaser,(/) and to give valid 
 receipts for the purchase-money.(^) And the concurrence of the 
 disclaiming party in any of these acts is not necessary, and cannot 
 therefore be enforced ; and it is immaterial that he is expressly 
 named in the trust instrument as one of the parties by whom the 
 power is to be exercised. (A) 
 
 It has been seen, also, in a former chapter, that a power given to 
 the trustee or the "survivor," may be well exercised by the "acting" 
 trustee on the refusal of the others.(i) 
 
 (a) Smith v. Wheeler, 1 Ventr. 128; (e) Small d. Marwood, 9 B. & Cr. 307. 
 
 Townson v. Tiokell, 3 B. & Aid. 31; (/) Cooke U.Crawford, 11 Law Journ. 
 
 Hawkins v. Kemp, 3 East, 410; Begbie N. S. Chanc. 406; [13 Sim. 71;] Crewe 
 
 V. Crook, 2 Bingh. N. C. 70. v. Dicken, 4 Ves. 97, 100; Nioloson v. 
 
 (6) Stacey v. Elph, 1 M. & K. 195, 9. Wordsworth, 2 Sw. 375; Acjaras v. 
 
 (c) Bonifant v. Greenfield, Cro. Eliz. Tailnton, 5 Mad. 435. 
 
 80; Smith v. Wheeler, 1 Ventr. 128; (g-) Smiths. Wheeler, 1 Ventr. 128; 
 
 Thomson v. Leach, 2 Ventr. 198 ; Haw- Hawkins v. Kemp, 3 East, 410 ; 2 Sugd. 
 
 kins V. Kemp, 3 East, 410; Denn v. V. & P. 51. 
 
 Judge, 1 1 East, 288 ; Thomson D. Tick- {h) Crewe v. Dicken, 4 Ves. 100; 
 
 ell, 3 B. & Aid. 31 ; Begbie v. Crook, 2 Adams v. Taunton, 5 Mad. 435. 
 
 Bingh. N. C. 70. (i) Sharp v. Sharp, 2 B. & A. 405. 
 
 (d) Stacey v. Elph, 1 M. & K. 195; 5 [Peppercorn v. Wayman, 13 Eng. L. & 
 Mart. Conv. 608. [Even after sale by Eq. 199.] 
 
 acting trustees. Peppercorn v. Way- 
 man, 13 Eng. L. & Eq. 199.] 
 
 ' King V. Donnelly, 5 Paige, 46; Trask v. Donoghue, 1 Aik. 370 ; Putnam Free 
 School V. Fisher, 30 Maine, 520 ; Jones v. MofTet, 5 S. & R. 523 ; Taylor v. Gal- 
 loway, 1 Hamm. 232; Corliesu Little, 2 Green, 373; Bruiier i). Sterm, 1 Sandf. 
 Ch. 357 ; see Smith v. Shackelford, 9 Dana, 452 ; Leavans v. Butler, 8 Porter, 380. 
 
320 THE REFUSAL OF THE OFFICE OF TRUSTEE. 
 
 It is scarcely necessary to add, that if the trustee has once accepted 
 the trust in any manner, a purchaser cannot safely dispense with his 
 concurrence in the sale, and in the receipt for the purchase-money, 
 although he may have attempted to disclaim, and has released his 
 estate to his co-trustees. (^) 
 
 It is no objection to a disclaimer in the case of copyholds, that it 
 was made to defeat the lord's right to fines.(Z) 
 
 Powers, however, that imply a personal confidence in the donees, 
 can only be exercised by the persons to whom they are expressly 
 given, (m) Such powers, therefore, if given only to the particular 
 persons named, will not be transferred on the disclaimer of one of 
 them to his co-trustees, but will be absolutely gone.^ 
 
 But where the expressions used by the donor import an intention 
 that the power shall be exercised by the acting trustees or trustee, 
 a power even of this description will be well exercised by those who 
 accept the trust upon the disclaimer of the others. Thus, in a recent 
 case, a testator stated in his will that he had purposely omitted the 
 name of his son John ; *but in the hope that his conduct 
 L -I might change, and that he would behave and demean himself 
 with affection to his brothers and sisters, and with respect towards 
 his (the testator's) executors and trustees thereinbefore named, he 
 thereby gave unto his said trustees and the survivors of them, and 
 the executors and administrators of the survivor, full power and autho- 
 rity to permit his son John to have an equal share of his estate with 
 his brothers and sisters. One of the three executors and trustees 
 alone proved the will and acted as trustee : of the two others, one re- 
 nounced, and the other declined proving. The only acting trustee 
 made a statement in a state of facts laid before the Master to the 
 effect, that the testator's son John had conducted himself well and 
 properly, and to his (the trustee's) entire satisfaction : and it was 
 held by Lord Langdale, M. E,., that the acting trustee had executed 
 
 (A) Crewe v. Dicken, 4 Ves. 97; 2 (m) Vide supra, 211; et post, Part 
 Sugd. V. & P. 50, 1. III. Div. I. Ch. II. sect. 3. 
 
 (/) Rex V. Wilson, 10 B. & Cr. 80. 
 
 ' Upon this subjectsee notes, post, 486, 473 ; 4 Kent, Comm. 326. In Lancashire 
 i). Lancashire, 2 Phill. 657, a trustee of a will, who had formally renounced by a 
 deed, which purported, but ineffectually, to appoint a successor, being applied 
 to, eleven years after, to join with his original co-trustee in a deed purporting to 
 be an exercise of a discretionary power, which could only be exercised by the 
 two trustees of the will for the time being, refused to do so without an indemnity, 
 but ultimately, on being indemnified, executed the deed. And it is held that he 
 could not resume his position as trustee for such a purpose; and that, even if he 
 could, his execution of the deed, under the circumstances stated, could be re- 
 garded only as a mere formal act, and not as an exercise of that discretion which 
 was essential to a due execution of such a power. 
 
THE REFUSAL OF THE OFFICE OF TRUSTEE. 321 
 
 the power, which was vested in him, and that John's representatives 
 were therefore entitled to an equal share in the testator's estate with 
 his other children.(w) This decision must have proceeded upon the 
 principle established (as we have already seen) in the case of Sharp 
 V. Sharp, that by the term " survivor" the " acting trustee was 
 intended. "(o) 
 
 Where a power is given to persons expressly by name in their 
 individual character and not as trustees, it can only be exercised by 
 the persons to whom it is given, and will therefore fail on the dis- 
 claimer of any one of them ; unless that event be provided for by the 
 terms of the power.(jp) 
 
 Where a trustee has disclaimed by deed no case has ever occurred 
 in which he has been allowed to revoke the disclaimer, and assume 
 the office of trustee. A disclaimer, moreover to be valid, must be 
 absolute ■,{q) it is conceived, therefore, that a power of revocation 
 attached to a deed of disclaimer would invalidate it ; and if there be 
 no power to revoke the deed, the party who executes it would be 
 estopped from claiming the estate. 
 
 In one case, however, where a trustee had disclaimed by his ansiver 
 to a bill (which answer, however, was not put in on oath), the court 
 appears to have permitted him to revoke the disclaimer, and accept 
 the trust, (r) 
 
 It is for the benefit of the cestui que trust, that the disclaimer of 
 a trustee should be testified by a deed executed by him for that pur- 
 pose. Therefore the expense of such a deed must doubtless be borne 
 by the trust estate. 
 
 A trustee who has never acted, and who has already disclaimed, 
 ought not to be joined as a party to a suit respecting the trust pro- 
 perty.(s) 
 
 But a person who has been named in an instrument, as a trustee, 
 and has not actually disclaimed, will be properly made a defen- 
 dant to such a suit.(i) And if he then disclaim by his answer, and 
 the bill is dismissed as against him, he will be entitled to his costs 
 only as between party and party , and not as between solicitor and client. 
 In the case of Sherrat v. BentIey,(M) indeed. Sir J. Leach, M. R., 
 gave a defendant under *such circumstances his costs, -as be- r-^ncyin 
 tween solicitor and client. But in a subsequent case, where L "^ J 
 Sherrat v. Bentley was cited, the same learned Judge laid it down 
 as the general rule, that a person named trustee, who declines to 
 
 (n) Eaton v. Smith, 2 Beav. 236; vide (r) Miles v. Neaves, 1 Cox, 159. 
 
 post (Discretionary Powers), 481, &o. (i) Richardson v. Hulbert, 3 Anstr. 
 
 (o) 2 B. & A. 405. 68. 
 
 (p) 1 Sugd. Pow. 139, &c. (<) See Norway i>. Norway, wfti supra ; 
 
 Iq) Ante, p. 224. [Judson v. Gib- Bray -y. West, 9 Sim. 429. 
 
 bons, 5 Wend. 224.] (u) 1 R. & M. 655. 
 
 21 
 
322 THE REFUSAL OF THE OFFICE OP TRUSTEE. 
 
 accept the office, is in the situation of any other defendant, against 
 ■ffhom a bill is dismissed, and therefore could only have the ordinary 
 costs as between party and party. (a;) And this last decision was 
 afterwards acted upon by Sir L. Shadwell, V. C, where the plain- 
 tiffs, instead of dismissing the bill, at once against the trustee or his 
 disclaimer, continued him as a party up to the hearing, and thereby 
 occasioned him additional costs. («/) The decision in Sherrat v. 
 Bentley, must therefore be considered as overruled. However, if 
 there be any vexation in the conduct of the plaintiff towards the de- 
 fendant who has disclaimed, as where he replies to the answer, and 
 serves a subpoena to rejoin, that might make a difference in the mode 
 of taxing the costs in favor of the defendant.(3) 
 
 (a) Norway v. Norway, 2 M. & K. (2) See Williams v. Longfellow, 3 
 278. Atk. 582. 
 
 ({/) Bray v. West, 9 Sim. 429 ; see 
 3 Dan. Ch. Pr. 77. 
 
*PAET II. [*229] 
 
 OF THE ESTATE OF TRUSTEES. 
 
 OF THE NATURE, EXTENT, AND LEGAL PROPERTIES, 
 OF THE ESTATE OE TRUSTEES ; AND OF ITS DISPO- 
 SITION, AND LEGAL REVOLUTION. 
 
 CHAPTER I. 
 
 OF THE NATUEE OR QUALITY OF THE ESTATE OF TRUS- 
 TEES; AND THEREIN WHERE THEY TAKE THE LEGAL 
 ESTATE. 
 
 I. Where the Trust Property II. Where it consists of Per- 
 CONSISTS or Real Estate sonal Estate [236]. 
 
 [229]. 
 
 I.— "WHERE THE TRUST PROPERTY CONSISTS OF REAL ESTATE. 
 
 At law the trustee is regarded as the real owner of the estate 
 vested in him, whether it he real or personal ; and the nature and 
 quality of that estate will, in general, depend upon the liniitations 
 contained in the instrument under which he takes. However, not- 
 withstanding the apparent simplicity of this general rule, very many 
 cases have arisen in practice, which depend solely upon whether the 
 legal estate is or is not vested in the trustee. The question to which 
 we are now addressing ourselves, is — not whether the person named 
 in the instrument shall hold beneficially, or as a trustee (for we are 
 now supposing, that the expressions are such as to preclude any bene- 
 ficial claim) ; but the point to be considered is — whether any legal 
 interest at all passes to him under the limitations. , 
 
 It has been already stated, that, according to the construction put 
 upon the Statute of Uses, the legal estate in many cases will not be 
 executed by the statute in the cestui que use on a conveyance or 
 devise to uses, but will vest in the donee to uses, as a trustee for the 
 
324 OF THE LEGAL ESTATE IN TRUSTEES. 
 
 cestui que use, or cestui que trust, as it would have done before the 
 statute.(a)' 
 
 We have seen, moreover, that three direct modes of creating a 
 trust of real estate arise from this construction — 1st, Where a use is 
 limited upon a use ; 2d, Where a copyhold or leasehold estate is 
 limited to uses; and 3d, Where the donee to uses is intrusted with 
 duties or powers, for the *due discharge of which it is requi- 
 L -I site that he should take the legal estate.(6)^ 
 
 (a) Ante, Part I. Div. I. Chap. II. 12, Ch. 1, s. 4. [Ramsay v. Marsh, 2 
 
 Sect. ], page 63. McCord, 252; Norton v. Leonard, 12 
 
 (6) Ibid. Co. Litt. 272, a, Butl. note Pick. 157; McNish ti. Guerard, 4 Strob. 
 
 VIII. ; Ibid. 290, b. n. II. ; Cruis. Dig. tit. £q. 74.] 
 
 ' The intent of the statute, it was said in Vandervolger i). Yates, 3 Barb. Ch. 
 243, was not to defeat the beneficial interest of the cestui que use, but only to 
 change his mere equitable interest into a legal estate of the same quality or du- 
 ration ; and therefore, if for any reason, it could not take effect otherwise, as in 
 the case of a trust for an unincorporated society, the trustees will take the 
 legal estate; and see Reformed Dutch Ch. v. Veeder, 4 Wend. 494. 
 
 "The Statute of Uses is in force in most of the United States. See 4 Kent's Comm. 
 299; French v. French, 3 N. H. 239; Marshall v. Fish, 16 Mass. 31; Norton v. 
 Leonard, 12 Pick. 156; Bryan v. Bradley, 12 Conn. 474; 3 Binn. App. 619. 
 Ramsay v. Marsh, 2 McCord, 252 ; West v. Biscoe, 6 H. & J. 465. In Virginia, 
 however, though at first a part of the colonial law of the State, the statute has 
 been repealed (in 1792), and supplied by the Revised Code (ed. 1849. p. 502); 
 which in deeds of bargain and sale, covenants to stand seised, and of lease and 
 release provides that the possession of the bargainor, &c., shall be transferred to 
 the bargainee, &c., for the interest that the party has in the use, as perfectly as 
 if the latter had been enfeoffed with livery. This is understood not to apply to 
 any other assurances than those enumerated; (1 Loma.Y Dig. 188); and conse- 
 quently not to a devise ; Bass v. Scott, 2 Leigh, 359. The Acts of North Carolina, 
 Rev. Stat. (1836) 259, and of Kentucky (Morehead & Brown, 443,) are substan- 
 tially the same words. The Revised Code of Delaware (1852) 266, provides 
 generally that lands may be transferred by deed without livery, and that the legal 
 estate shall accompany the use and pass with it. In Ohio, the Statute of Uses is 
 said never to have been in force. Helferistrine v. Garrard, 7 Hamm. (Ohio) 276, 
 In Massachusetts, it was said in Norton v. Leonard, 12 Pick. 157, that owing to 
 the absence of a Court of Chancery there, the general rule was to treat the use 
 as executed, except where repugnant to the manifest intention of the instrument. 
 
 There is a very marked difference in this country as regards the effect of con- 
 veyances nominally operating under the Statute of Uses, from that stated in the 
 text. In most of the States, as Maine, New Hampshire, Vermont, Massachusetts, 
 and others (see 1 Greenleaf, Cruise Dig. 340, note), there are statutory regu- 
 lations, which provide in substance that deeds executed in the prescribed manner 
 shall be valid to pass the estate to the grantee without any other formality; and 
 in many, livery of seisin is expressly abolished : Wisconsin, Delaware, Te.ias, 
 Ohio, North Carolina, and other States. See Thornton on Conveyancing, sub. 
 cap. In Pennsylvania, by the Act of 17 1 5 (Dunlop, Dig. 72), all deeds and convey- 
 ances, proved or acknowledged according to the Act, are to have the same force and 
 effect for the giving possession and seisin, &c., as deeds of feoffment with livery 
 of seisin. In Delaware, the legal estate is to accompany the use and pass with it. 
 
OF THE LEGAL ESTATE IN TKUSTEES. 325 
 
 The first two of these rules originated in a strict and technical 
 construction of the words of the statute, which is expressed to apply 
 to cases, " where any person is seised of any lands or tenements to 
 the use of any other person." It was decided, therefore, that a use 
 limited upon a preceding use, did not come within the provisions of 
 the statute ; as the second cestui que use could not he said to be seised 
 to the use. And it was held, that the legal estate was executed in 
 the first cestui que use, who was thereupon treated in equity as 
 a trustee for the person to whom the ultimate use or trust was 
 limited. (c) 
 
 Thus if land were conveyed by feoffment' or other mode of as- 
 surance to A. and his heirs to the use of B. and his heirs to the use 
 of C. and his heirs(<2) — or to B. and his heirs to the use of B. and 
 his heirs to the use of C. in fee or for life with remainders over(e) — 
 or to B. and his heirs to the use of B. and his heirs, in trust to 
 permit 0. and B. to receive the rents (/); — in all these cases it has 
 been held, that the statute executes the first use in B. and his heirs, 
 
 (c) Tyrrell's Case, Dyer, 155, a; 1 146; Wagstaffu.Wagstaff, id. 258; Doe 
 
 Cruis. Dig. tit. 12, Ch. 1, s. 4 to 14; 1 v. Passingham, 6 B. & Cr. 305. 
 
 Pow. Dev. 220. (/) Att.-Gen. v. Scott, Forrest, 138. 
 
 (rf) 2 Bl. Cora. 336. [See Jones v. Ball, 4 Harr. (Del.) 1.] 
 
 (e) Whetstone v. Bury, 2 P. Wms. 
 
 In all these cases it is believed the Statute operates a transmutation of the seisin, 
 as in common law conveyances, to the first use. See 19 Am. Jurist, 1 ; Durant 
 V. Ritchie, 4 Mason, 68. In Pennsylvania, it is said that a deed not recorded in 
 pursuance of the Act, does not execute the possession to any use therein limited. 
 (Sprague v. Woods, 4 W. & S. 195, Sergeant, J.); but that it merely operates as 
 a bargain and sale if there were a valuable cou.sideration, or as a covenant to 
 stand seised, if that of blood alone. As to the doctrine of Tyrrell's Case, that a 
 use upon a use is void at law, it was disapproved in Thatcher i). Omans, 3 Pick. 
 528 ; and it is indeed doubted by Mr, Greenleaf, in his edition of Cruise's Digest, 
 vol. 1, page 340 (see also 12 Pick. 157), whether it can be regarded as a rule 
 of construction in the United States generally. But, though in some of the States, 
 as New York (since the Revised Statutes), Rhode Island, and Indiana,' from the 
 language of their Acts, it cannot be considered as any longer applicable, it was 
 referred to in Ramsay v. Marsh, 2 McCord, 252 ; Calvert's Lessee v. Eden, 2 
 Harris & MoHenry, 331 ; Jackson v. Myers, 3 John. R. 396; Jackson v. Gary, 16 
 Id. 304; and many other cases; as existing. (See 4 Kent's Comm. 301.) And as 
 the statutes of the majority of those States, where the 27 Hen. VIII. is not actually 
 in force, as it is in some, appear merely to be intended to supply the want of 
 livery of seisin, and to make all deeds, executed, &c., with the required formali- 
 ties, equivalent to feoffments, it is conceived that so deeply-rooted a rule of 
 conveyancing as the one stated ought not to be deemed abolished in the 
 absence of any more express provision. Indeed, to do so, would be to destroy 
 all passive trusts created in the conveyance of land; and this can be hardly sup- 
 posed to have been in the intention of the 'various legislatures. 
 
 ' So of a lease and release. Hurst's Lessee v. McNeil, 1 Wash. C. C. R. 70; 
 Durante. Ritchie, 4 Mason, 65; Williams v. Waters, 14 M. & W. 166. 
 
326 OF THE LEGAL ESTATE IN TRUSTEES. 
 
 and that the legal estate is vested in him as a trustee for the parties, 
 to whom the beneficial interest is given.' And in the case of a 
 devise the rule of construction is the same ;(^) for it is settled, on 
 principle and authority, that the Statute of Uses applies to uses cre- 
 ated by will. (A) 
 
 So, "where lands are conveyed by covenant to stand seised, bargain 
 and sale, or by appointment under a power, to A. and his heirs to 
 the use' of 5. and his heirs ; the legal estate will vest in A., and B. 
 will take only a trust or equitable estate ; for in each of these in- 
 stances the conveyance does not operate by transmutation of the 
 seisin to A., but merely passes the use to him, while the seisin to 
 serve the use remains undisturbed in the original owner, (i) 
 
 The second case in which the legal estate will be vested in the 
 trustee, is — where copyhold or leasehold estates are limited to uses. It 
 was resolved by all the Judges in the 22d of Elizabeth, that the word 
 ^'■seised" was only applicable to freeholds; consequently the statute 
 was held not to apply to copyholds or terms for years ; of which no 
 seisin can be had ; and where lands of either of those tenures are 
 limited by deed or will to one person to the use of another, the first 
 taker will have the legal estate, which he will hold as a trustee for 
 the other.(A)^ 
 
 These two principles of construction, however narrow and techni- 
 cal, are now so well established, and so universally recognised and 
 understood, that *at the present day a question can rarely 
 L -I arise, as to whether a trustee in any of those cases does or 
 does not take the legal estate in land under a conveyance or devise. 
 
 (g) Jones V. Lord Saye and Sele, 1 (i) Gilb. Uses, 67, 347, n.; 1 Cruis. 
 
 Eq. Ca.Abr. 383; Hopkins ij. Hopkins, Dig. tit. 12, Ch. 1, s. 9; 1 Sugd. Pow. 
 
 1 Aik. 581'; Marwood v. Darell, Ca. 10, 240, 6th edit. [See Jackson t). Fish, 
 
 Temp. Hard. 91; 1 Pow. Dev. 220. 16 John. 304.] 
 
 Qi) 1 Sugd. Pow. 172, 7th edit. ; see (Jk) Gilb. Ten. 182 ; Gilb. Us. 67, n. ; 
 
 Co. Litt. 271, b. Butl. note ; 1 Sand. Us. Cowp. R. 709 ; Dyer, 369, a; Bac. Read. 
 
 195; 2Fonbl. Tr. Eq. 24, n. c; 1 Pow. 42; 1 Cruis. Dig. tit. 11, Ch. 3, s. 22, and 
 
 Dev. 209. [Ramsay v. Marsh, 2 Mc- tit. 12, Ch. 1; Pow. Dev. 232; 1 Sugd. 
 
 Cord, 252.] Pow. 10. 
 
 ' In a conveyance to A. and his heirs, " in trust for the use of B. (a married 
 woman) and her heirs, with power to the said B. to dispose of the same, by an 
 instrument in writing duly executed in the nature of a last will and testament," 
 the legal estate is vested at once in B. and her heirs. Moore v. Shultz, 13 Penn. 
 St. R. 98. The mere addition of the words " for her sole and separate use," in a 
 trust for a married woman, will not by itself convert a use executed into a trust. 
 Williams v. Waters, 14 M. & W. 166. 
 
 2 Rice D. Burnett, 1 Spear's Eq. 579;^Pyrom ■u.Mood, 2 McMullan, 293. But in 
 Virginia the Revised Code, using the word " possessed " instead of " seised" (see 
 note to page 229), is understood to apply to both personal and real estate. Tabb 
 V. Baird, 3 Call, 482; but see the remarks of Judge Lomax in 1 Lom. Dig. 196- 
 
 / 
 
OE THE LEGAL ESTATE IN TRUSTEES. 327 
 
 We shall see presently, however, that there may be considerable dif- 
 ficulty in defining the extent and duration of the estate thus vested 
 in him. 
 
 The third and last rule of construction, as it is less technical, and 
 founded more on general principles, so it may be sometimes found 
 more difficult of application. This rule is — that the legal estate will 
 be held to vest in the donee to uses, in order to enable him to per- 
 form the duties with which he is intrusted ; and it was established at 
 a very early period, and has since been generally acted upon.(Z)^ 
 
 Thus where there is a conveyance,(m) or devise,(w) of real estate 
 to trustees and their heirs, to sell or mortgage for the payment of 
 debts ; or with the money to purchase other lands to be settled to 
 certain uses ; the legal estate will be vested in the trustees, and not 
 in the persons to whom the use is subsequently limited.(o) (1) And 
 
 {l) Feame's Op. 422; 1 Cruis. Dig. (o) Bagshawew. Spencer, 1 Ves. 142; 
 
 tit. 12, ch. 1, s. 14, 25. Keenei;.Deardon, 8 East,248; Feame's 
 
 (m) Keene v. Deardon, 8 East, 248. Op. 422; Sanford v. Irby, 3 B. & Al. 
 
 [Chamberlain v. Thompson, 10 Conn. 654: 1 Cruis. Dig. tit. 12, Ch. 1, s. 21; 
 
 244.] 1 Pow. Dev. 221, n. 7 ; but see Popham 
 
 (n) Bagshawe v. Spencer. 1 Ves. 142. v. Bampfield, 1 Vern. 79. 
 
 (1) In an early case, where a testator devised lands to trustees for the payment 
 of his debts, and after his debts paid, then in trust for the use and benefit of A. and 
 his heirs male ; it was held, that the legal estate was executed by the Statute of 
 Uses in A. This decision might well be consistent with the fact of the trustees 
 taking a chattel interest for a term of years for the payment of the debts: but from 
 the report of the case in Vernon, the court seems to have considered that they 
 did not take any legal interest. However, no claim was raised by the trustees, 
 who on the contrary seem expressly to have admitted the legal title of A. The 
 decision therefore cannot be regarded as a. binding authority on that point. 
 Popham V. Bampfield, 1 Vern. 79. 
 
 ■This rule has been generally adopted in America. Brewster v. Striker, 2 
 Comst. 19; Norton ■«. Leonard, 12 Pick. 157; Morton v. Barrett, 22 Maine, 261 ; 
 Porter v. Doly, 2 Rich. Eq. 52; McNish v. Guerard, 4 Strobh. Eq. 74; Striker v. 
 Mott, 2 Paige, 387; Vail v. Vail, 4 Paige, 317; McCosker v. Brady, 1 Barb. Ch. 
 329 ; Ashhurst v. Given, 5 W. & S. 323 ; Vaux v. Parke, 7 W. & S. 19 : Posey v. 
 Cook, 1 Hill, S. C. 413; Wood v. Wood, 5 Paige, 596. In Massachusetts, how- 
 ever, it was said to be the general rule to treat the use as executed, except where 
 it would be manifestly repugnant to the intention. Norton v. Leonard, 12 Pick. 
 157. See Leggett v. Perkins, 2 Comst. 297. But where a tract of landwas conveyed 
 to a father in fee to have and to hold in trust for his children then alive and 
 named in the deed, and such other children as might be born of the body of his 
 wife, " to be divided among them equally, share and share alike ; and until such 
 division shall take place, to be occupied and used entirely and specially for the 
 maintenance and support of the aforesaid children," it was held, that the legal 
 estate vested in the children named in the deed, subject to open and let in after- 
 born children. McNish v. Guerard, 4 Strobh. Eq. 66. 
 
328 OF THE LEGAL ESTATE IN TRUSTEES. 
 
 this construction will not be affected by the existence of a power 
 given to one of the beneficial tenants for life to control the sale of 
 part of the estate by the trustees. (p) 
 
 And although the direction for the payment of debts or legacies 
 out of the proceeds of the land is only in aid of the personal estate, 
 the trustees will notwithstanding take the legal estate instanter, in- 
 dependently of the fact of its eventual applicability. (5') 
 
 However, it is otherwise where the charge of debts, &c., on the 
 real estate is expressly contingent upon the insufficiency of the per- 
 sonalty, or on the deficiency of any particular fund, which is desig- 
 nated for the payment in the first instance ; for in that case the trus- 
 tees will not take an immediate vested legal estate. (r) 
 
 And a mere charge of debts or legacies on real estate will not of 
 itself vest the legal estate in the trustees, unless they are also ex- 
 pressly directed to pay them, or the will contains some other indi- 
 cation of an intention to create a positive trust for the purpose.(s) 
 
 For instance, where a testator, as to his real and personal estate, 
 subject to his debts, legacies and funeral expenses, devised the same 
 unto M. and W. and their heirs, upon trust, and to and for the seve- 
 r^nqoT "^^ yises, &o., ^following, that is to say, to the intent that 
 L "^ they (the trustees) should in the first place apply his personal 
 estate in discharge of his debts, &c. ; and as to his real estate, subject 
 to his debts and such charges as he might then or thereafter think 
 proper to make, he gave and devised the same unto R. P. for life 
 with remainders over. The court held that the legal estate was exe- 
 cuted in R. P. for his life. Lord Alvanley said, unless it appeared 
 manifestly that the testator intended that the trustees should he active 
 in paying the debts, the legal estate would not vest in them ; and 
 although his Lordship admitted that it would be much more conve- 
 nient that the trustees should take the legal estate, yet he hem, that 
 as there was no such apparent intention on the face of the will, the 
 court could not from an argument ah inconvenienti construe the tes- 
 tator to have said, what he in fact had not said.(i) 
 
 Again, where there is a direction for the trustees to demise the 
 estate for a term of years, though at rack rent, the term must take 
 effect out of their interest, and for that purpose it is essential, that 
 
 (p) Wykham v. Wykham, 18Ves. 1 Jarra. Pow. Dev. 224, n. ; but see Gib- 
 
 395, 413. son v. Lord Montfort, 1 Ves. 485. 
 
 (g) Murthwaite v. Jenkinson, 2 B. & (s) 1 Jarm. Pow. Dev. 224, n. [Doe 
 
 Cr. 357; 1 Jarm. Pow. Dev. 224, n.; v. Claridge, 6 C. B. 659.] 
 
 see Wykham 1). Wykham, 18 Ves. 395; {t) Kenrick v. Lord Beauclerk, 3 B. 
 
 see 413, 14. & P. 178 ; Doe d. Cadogan v. Ewart, 7 
 
 (r) Goodtitle v. Knott, Coop. 43 ; Ad. & Ell. 636, 668. 
 Hawker v. Hawker, 3 B. & Aid. 537 ; 
 
OF THE LEGAL ESTATE IN TRUSTEES. 329 
 
 \, they should take the legal estate.(M) And, as we shall see 
 presently, the legal fee will vest iu the trustees by virtue of such a 
 ^rust.(a;) 
 
 However, if a mere power of leasing be given to the trustees, a 
 g3od legal term may be created by the exercise of that power, and 
 thg legal estate will not vest in them unless the general construction 
 in l(ther respects require it.(y)' 
 
 S9 where there is a gift of real estate to trustees, with a direc- 
 tion , to conYey,(z) or to pay the rents and profits to certain per- 
 sons -/a) or to receive the rents, and apply them for the maintenance 
 of an individual during his life ;(6) or to pay an annuity out of the 
 rents to a person for life ;(c) or after deducting rates, taxes, repairs 
 and expenses, to pay every year such clear sum as should remain to 
 
 A. B. •,[d) in all these cases it has been held, that the seisin or pos- 
 session of the legal estate is requisite for the due performance of the 
 duty imposed on the trustees, and consequently, that the persons to 
 whom the use is subsequently given, take only a trust or equitable 
 estate. In many cases, however, as we shall shortly have occasion 
 to consider, the duration of the legal estate vested in the trustees 
 
 (ij) Doe d. Tompkins i;. Willan, 2 B. Leicester d. Biggs, 2 Taunt. 109; Bro. 
 
 & Aid. 84 ; Doe d. Keen v. Walbank, 2 Abr. til. Feoffment al Use, 52. [Ramsay 
 
 B. & Aid. 554. [Osgood v. Franklin, 2 v. Marsh, 2 McCord, 252; Wood v. 
 J. C. R. 20; Brewster v. Striker, 2 Comst Wood, 5 Paige, 596 ; Vail v. Vail, 4 Id. 
 19, so where the power to lease is only 317; 2 Comst. 33; Barker'!). Greenwood, 
 implied from an absolute direction to 4 M. & W. 749.] 
 
 sell; Burr v. Sim, 1 Whart. 266.] (6) Sylvester v. Wilson, 2T. R. 444 ; 
 
 (2:) See next chapter. See Doe d. Hallen v. Ironmonger, 3 
 
 (3/) Doe d. White v. Simpson, 5 East, East, 533. 
 162 ; Doe d. Tompkins v. Willan, 2 B. (c) Chapman v. Blisset, Forr. 145 ; S. 
 
 & Aid. 84. C, Ca. Temp. Talbot, 145; Jones v. Lord 
 
 (z) Garth d. Baldwin, 2 Ves. 645; 1 Saye and Sele, 1 Eq. Ca. Abr. 383; 
 
 Pow. Dev, 222; Mott v. Buxton, 7 Ves. Naylor v. Arnitt, 1 R. & M. 501 ; Curtis 
 
 201; Doe d. Shelley d. Edlin, 4 Ad. & v. Price, 12 Ves. 89; Doe d. Cadogan 
 
 Ell. 582. V. Ewart, 7 Ad. & Ell. 636, 668. 
 
 (o) Symson v. Turner, 1 Eq. Ca. Abr. (d) Shepland v. Smith, 1 Bro. C. C. 
 
 383, n. ; Garth v. Baldwin, 2 Ves. 645; 74; see Brown v. Ramsden, 3 Moore, 
 
 Robinson v. Grey, 9 East, 1; Doe d. 612;Tiernyd.Gibbst).Moody,3Bing. 3. 
 
 ' In Brewster u. Striker, 2 Comstock, 19, however, a testator had devised his 
 estate to his three grandchildren and their heirs for ever. He then directed it to 
 be ''disposed of" by his executors and the survivors of them, &c., thus, "The 
 said real estate shall not at anytime hereafter be sold or alienated, but my said 
 executors, or the survivors, &c., shall from time to time lease or rent the same on 
 such terms as they shall deem most advantageous to my said heirs, and the rents, is- 
 sues and profits of the same shall be annually paid to my said heirs in equal pro- 
 portions, and if either of ray children should choose to occupy any part of my 
 said estate, he, she, or they shall have a preference over any other applicant, on 
 paying a reasonable rent for the same." The Court of Appeals (Judge Johnsoa 
 dissenting) held that the executors took the legal estate by implication. But see 
 Doe V. Cafe, stated post, 242. 
 
330 OF THE LEGAL ESTATE IN TRUSTEES. 
 
 will be limited to the continuance of the duties, which they are re- 
 quired to perform.(e) 
 
 Where the rents, &c., are directed to be paid by the trustees to a 
 feme covert for her separate use, that will be an additional reason for 
 inducing the court to hold, that the trustees will take the leg*! 
 estate.(/) 
 
 *The cases, however, have established a very material iis- 
 L -I tinction, where the direction to the trustees is, not to fay 
 over the rents and profits to another person, but to permit and s'jffer 
 him to receive them. In the former case the trustees must neces- 
 sarily receive the rents, and they will take the legal estate for that 
 purpose ; but- in the latter case no such receipt by the tru&tees is 
 requisite ; and the legal estate will be vested by the statute in the 
 person who is to receive the rents. (^y 
 
 In the early case of Burchett v. Durdand,(A) this distinction was 
 denied ; but the decision in that case was afterwards expressly over- 
 ruled, and the rule of construction as stated above has ever since 
 been recognised and acted upon as law, although on one occasion, 
 Sir James Mansfield, while yielding to the weight and current of the 
 authorities, strongly questioned the soundness and propriety of the 
 distinction. (?) 
 
 Where both expressions are used, and the direction to the trustees 
 is in the alternative "to pay unto" or "to permit and suffer" the 
 person to receive the rents, it seems that the construction will be 
 governed by the expression which is posterior in the local order of 
 the sentence. Thus where the direction, to "permit and suffer" A. 
 to receive the rents, comes after the trust " to pay to him," it has 
 been held, that the last expression controlled the effect of the pre- 
 vious direction " to pay," and carried the legal estate to A., to the ex- 
 
 (e) See next chapter. the legal estate in the wife. Williams v. 
 
 If) Nevill V. Saunders, 1 Vern. 415; Waters, 14 M. & W. 166.] 
 
 Southri.AUeyne, 5 Mod. 63, 101; Lord (g-) Broughton v. Langley, 2 Ld. 
 
 Saye and Sele v. Jones, 1 Eq. Ca. Abr. Raym. 873 ; S. C. Salk. 679 ; Doe d. 
 
 383 ; S. C. 3 Bro. P. C. 1 13 ; Bush v. Al- Leicester v. Biggs, 2 Taunt. 109; Eight 
 
 len, 5 Mod. 63; Robinson v. Grey, 9 d. Phillips o). Smith, 12 East, 455; Gre- 
 
 East, 1; Hawkins v. Luscombe, 2 Sw. gory v. Henderson, 4 Taunt. 772. [See 
 
 375, 91. [McNishw. Guerard, 4 Strob. Parks v. Parks, 9 Paige, 107; Ramsay 
 
 Eq. 75; Barr v. Scott, 2 Leigh, 256; v. Marsh, 2 McCord, 252; Barker «. 
 
 Rogers v. Ludlow, 3 Sandf. Ch. 104. Greenwood, 4 M. & W. 429. 
 
 But a conveyance by a woman by way (A) 2 Ventr. 312. 
 
 of marriage settlement, to a truislee after (i) In Doe d. Leicester v. Biggs, 2 
 
 marriage, in trust for herself for life,^r Taunt. 109. 
 her own sole and separate use, &c., vests 
 
 ' A trust to have and hold the estate to the use and benefit, and to apply the 
 rents, issues, and profits, to and for each of the children of A., is executed in the 
 children, notwithstanding the word " apply.'- Laurens v. Jenney, 1 Spears, 356. 
 
OF THE LEGAL ESa;ATE IN TRUSTEES. 331 
 
 elusion of the trustees.(A;) It has been observed by Mr. Jarman, 
 that the repugnancy in such a case might be avoided by construing 
 the devise to give the trustees an option. (Z) 
 
 However' notwithstanding a direction in a will for the trustees to 
 permit and suffer another person to receive the rents, yet if any ad- 
 ditional duty be imposed upon the trustees, either expressly or by 
 implication, which requires that they should have the legal estate, 
 this distinction will not be suffered to prevail ; but the legal estate 
 will vest in the trustees, to enable them to perform the trust.(m)' 
 
 Therefore, where a testator devised his freehold and copyhold 
 estate to his executors thereinafter named and their heirs, executors, 
 and administrators, for and during the life of his son to the intent to 
 support the contingent remainders after limited, but in trust never- 
 theless to permit and suffer the son to receive the rents and profits 
 for his own use during his natural life ; and from and after his son's 
 decease, the testator devised the same estate to his son's first and 
 other sons in tail ; Lord Eldon held, that the son did not take the 
 legal estate, which was necessarily vested in the trustees for the pur- 
 pose of preserving the contingent remainders. (w) 
 
 And so where a controlling power is given to the trustees ; as 
 where *there was a trust to permit and suffer a woman to 
 receive the rents, but a direction was added, that her re- ■- ^ 
 ceipts, with the approbation of one of the trustees, should be good ; 
 the court thought, that the legal estate was vested in the trustees, 
 it being clearly intended, that they should exercise a control. (o) 
 
 Upon the same principle, where the trust is for the trustees to per- 
 mit and suffer a feme coverte to receive the rents for her separate 
 use, the legal estate will be held to vest in the trustees, in order to 
 effectuate the testator's intention to give the feme coverte the exclu- 
 sive beneficial interest. For, as was said by Lord Kenyon, if the 
 
 (A) Doe d. Leicester v. Biggs, 2 Taunt. 2 Denio, 9 ; Barker v. Greenwood, 4 M. 
 
 109; 1 Jarm. Pow. Dev. 222, n.; and & W. 431.] 
 
 see Pybus v. Smith, 3 Bro. C. C. 340. (o) Gregory v. Henderson, 4 Taunt. 
 
 (J) 1 Jarm. Pow. Dev. 222, n. 772 ; [cited with approbation in Barker 
 
 (m) Fearne's Op. 422; 1 Cruis. Dig. v. Greenwood, 4 M. & W. 430, and see 
 
 tit. 12, ch. 1, s. 25; iJarm. Pow. Dev. New Parish v. Odiorne, 1 N. H. 232;] 
 
 222, n.; Keene -u. Deardon, 8 East, 248. but see Broughton v. Langley, 2 Ld. 
 
 (m) Biscoe V. Perkins, 1 V. & B. Raym. 873 ; Salk. 679 ; 1 Pow. Dev. 
 
 485, 9; [SeeVanderheyden «. Crandall, 216, 7. 
 
 ■In Barker v. Greenwood, 4 M. & W. 421, where there was a devise in trust 
 to permit and suffer the testator's widow to receive the net rents and profits, it 
 was held that the legal estate must remain in the trustees ; inasmuch as " the 
 trustees were to receive the gross rents, and after paying out of them the land 
 tax and any other charges on the estate, to hand over the net rents to the tenant 
 for life." See White v. Parker, 1 Bingh. N. C. 673, where the same effect was 
 given to the word " clear." 
 
332 OP THE LEGAL ESTATE IN TRUSTEES. 
 
 legal estate vested in the married woman, the husband would be en- 
 titled to receive the profits, and so defeat the object of the devisor.(j9y 
 
 So where the devise was to trustees and their heirs, in trust out of 
 the rents to pay certain life annuities, and subject to those annui- 
 ties, to permit and suffer certain persons to receive and' take the 
 rents and profits during their lives, the legal estate was held to vest 
 in the trustees and not in the beneficial tenant for life. In that case 
 there was also a power for the trustees, with the consent of the be- 
 neficial tenant for life, and after his death of their own discretion, to 
 sell any part of the estate for the purpose of raising money for the 
 advancement of the children, (g') 
 
 It has been laid down, that in all these cases the question, whether 
 the use with the legal estate is executed in the trustees or not, must 
 depend upon the intention of the devisor, as collected from the will.fr) 
 This dictum, however, as has been explained by Mr. Jarman, means 
 only, that the intention of the testator may control the operation of 
 the Statute of Uses by fixing the legal estate in the first devisee; for 
 it clearly will not be sufiiered to extend that operation in contraven- 
 tion of the established rules of law, so as to execute a use limited 
 upon a previous use, or upon a devise of a copyhold or leasehold 
 estate. (s) 
 
 In the cases just considered, the intention, that the trustees should 
 take the legal estate, was collected and acted upon by the court from 
 the circumstances and nature of the duties imposed upon them by 
 the testator. Any particular expressions attached by a testator to a 
 devise to trustees, will also be taken into consideration as evidence, 
 from which such an intention may be collected. 
 
 Thus, where a testator gave to his wife 200Z. per annum in addi- 
 tion to her jointure, and, his just debts being previously paid, he 
 gave unto his younger chilren 6000Z. each to be paid when they seve- 
 rally reached twenty-one, and he appointed three persons by name 
 
 (p) Harton v. Harton, 7 T. R. 652 75; Barr u. Scott, 2;Leigh, 256 ; Rogers 
 
 [see the remarks on this case in 14 M. u. Ludlow, 3 Sandf. Ch. 104.] 
 
 & W. 172] ; and see Hawkins v. Lus- (5) Naylor v, Arnitt, 1 R. & M. 501. 
 
 combe, 2 Sw. 391; Bush v. Allen, 5 (r) Per Lord Kenyon in Harton 1). 
 
 Mod. 63 ; Neville v. Saunders, 1 Vern. Harton, 7 T. R. 653, 4; see 1 Cruis.Dig. 
 
 415. [McNish V. Guerard, 4 Strob. Eq. tit. 12, ch. 1, s. 25. 
 
 (s) 1 Jarm. Row. Dev. 217, n. 3. 
 
 ' So, when'.in a marriage settlement, the real and personal estate of the intended 
 wife was vested in a trustee, till marriage, and then '■ in trust to permit" 
 the husband and wife "to have, use and possess" the same during their joint lives, 
 &c. ; and it was provided that the real and personal estate might be altered, 
 sold, and exchanged, with the joint consent in writing of the trustee and cestui que 
 trust, provided the proceeds were vested in other property, to be held subject to 
 the same trusts. Rice v. Burnett, 1 Spear's Eq. 580. See, as to Marriage Set- 
 tlements generally, Magniac v. Thompson, 1 Baldwin, 344. 
 
OF THE LEGAL ESTATE IN TRUSTEES. 333 
 
 as trustees of inheritance for the execution thereof; or a case sent 
 to the Court of King's Bench by the Lord Chancellor (Lord Eldon), 
 the majority of the judges, in consideration of those expressions, cer- 
 tified that the trustees took the legal estate in fee. A previous cer- 
 tificate by the Court of Common Pleas,* that the trustees 
 took no estate, was not considered satisfactory by the Lord L J 
 Chancellor, -who in consequence sent a second case for the opinion of 
 the court.(i) 
 
 Where several different trusts are created indiscriminately by the 
 same -will, some of which require the legal estate to be vested in the 
 trustees, while the same necessity does not exist as regards the 
 others, the legal estate will vest and remain in the trustees through- 
 out ; and will not be devested and revested again from time to time, 
 as the different trusts take effect. And this will be the case, al- 
 though the trusts, which requires the existence of the legal estate in 
 the trustees (as for instance trusts for the separate use of feme 
 eovertes), are not limited to arise until the determination of previous 
 interests, which would otherwise clearly carry with them the legal 
 estate, (m) 
 
 The Statute of Uses in terms expressly applies to persons seised 
 to the use, trust, or confidence of any other person. Therefore, if lands 
 are conveyed, or devised, to A. and his heirs in trust for B. and his 
 heirs ; or to the intent and purpose, that B. should receive the rents 
 and profits for life ; in either case the use or legal estate will be 
 vested in B., in the same manner as if the estate had been limited to 
 his use. The words "use" and "trust," said Lord Ellenborough, 
 are both equally within the operation of the statute. (a;)^ 
 
 And where a testator in the course of a series of limitations, some- 
 times uses the word "use," and sometimes "trust;" that will not 
 prevent the statute from executing the legal estate in the^ latter case, 
 if it appear, that the two expressions were used indifferently by the 
 testator, (t/) 
 
 So if a gift were made to trustees and their heirs for the henefi,t 
 of B., or any other expression of similar import were used, there can 
 be little doubt but that the legal estate would be executed by the sta- 
 
 (J.) Trent v. Banning, 10 Ves. 495; Right w. Smith, 12 East, 454; Hummer- 
 
 S. C. IB.&P. N. C. 116; 7 East, 95. ston's case, Dyer, 166 a, n. (9); Bacon, 
 
 (m) Hawkins v. Luscombe, 2 Sw. Uses, 47; 1 Cruis. Dig. tit. 11, ch. 3, s. 
 
 375, 391. [See post, 242, note.] 33; Co. Litt. 290, b, Butl. note. [See 
 
 {x) Doe d. Terry ». Collier, 11 East, Jackson v. Fish, 10 Johns. R. 455.] 
 
 377 ; Eure v. Howard, Free. Ch. 338, (?/) Doe d. Terry v. Collier, 1 1 East, 
 
 345 ; Broughton v. Langley, 2 Salk. 679 ; 377. [See Parks v. Park, 9 Paige, 107 .] 
 
 ■ A devise of real estate to trustees, to hold the same to them and their heirs 
 in trust, to and for the use and behoof of A., &o., vests the legal estate in the 
 cestui que use. Ramsay v. Marsh, 2 McCord, 252. See Moore v. Shultz, 13 Penn. 
 St. R. 98. 
 
334 OF THE LEGAL ESTATE IN TRUSTEES. 
 
 « 
 
 tute in B., unless the general intention of the donor required, that it 
 should be vested in the trustees. (3) - 
 
 It is almost needless to add, that, where the conveyance or devise 
 is to and to the use of the trustees, they will take the legal estate by 
 virtue of the limitation, without the aid of any reasoning derived 
 from the nature of the trust.(a) 
 
 It not unfrequently happens, that a testator merely gives his trus- 
 tees a power of disposing of the estate, without making an express 
 devise to them. In this case it is clear, that the trustees will not take 
 the legal estate, although the exercise of the powers may be impera- 
 tive ; but the legal estate will descend to and remain vested in the 
 heir of the testator, until devested by the execution of the power. 
 For instance, where a testator devises that his executors or other per- 
 sons shall sell, or let, or mortgage, or otherwise dispose of his estate 
 for payment of his debts, &c. ; or directs, *that his executors 
 L -I shall raise his debts out of his estate ; it has been decided, that 
 no estate vests in the devisees, but simply a power of disposition.(})' 
 
 It may be observed here, that the usual estate given t,o trustees in 
 settlements to preserve contingent remainders is a vested estate.(c) 
 
 (2) See Fearne's Op. 422 j 1 Cruis. Fowler u. Jones, 1 Cha. Ca. 262; Yates 
 
 Dig. tit. 12, ch. 1, s. 25. v. Compton, 2 P. Wms. 308; Bateman 
 
 (a) Whelslone'V. St. Bury, 2 P. Wms. v. Bateman, 1 Atk. 421; Lancaster ». 
 146; S. C. Preo. Ch. 591; Syrason v. Thornton, 2 Burr. 1027; Hilton 1;. Ken- 
 Turner, 1 Eq. Ca. Abr. 383, pi. 1; Hop- worthy, 3 East, 553; Co. Litt. 113 & 
 kins u Hopkins, 1 Atk. 581 ; Hawkins 290, b, n. IX.; 1 Pow. Dev. 233; 2 
 V. Luscombe, 3 Sw. 376, 388; 1 Jarm. Sugd. Pow. 174, 6th edit. 
 Pow. Dev. 224 n.; Keene v. Deardon, 8 (c) Co. Litt. 265, a, n. 2 ; 337, b, n. 2. 
 East, 248. [Laurens v. Jenney, 1 Spears, 365.] 
 
 (6) Reeve v. Att.-Gen. 2 Atk. 223; 
 
 ' It is the general rule in the United States, that a devise or direction that exe- 
 cutors shall sell or charge for payment of debts, gives no estate in the land, 
 but simply a power. Peter v. Beverly, 1 How. U. S. 134: 16 Pet. 532;Buir«. 
 Sim, 1 Whart. 266 ; Guyer v. Maynard, 6 Gill & Johns. 420 ; Shellin v. Homer, 
 5 Mete. 462; Bradshaw v. Ellis, 2 Dev. & Batt. Eq. 20; Hope v. Johnson,- 2 Yerg. 
 123; Jameson v. Smith, 4 Bibb, 349; 4 Kent's Comm. 320. See Dabneyi). Man- 
 ning, 3 Ohio R. 221. But in Pennsylvania, by the act of 1834, J 13 (Dunlop, 
 page 518), where executors have merely a naked authority to sell real estate, 
 they are nevertheless to take and hold the same interest therein, and have the 
 same powers and authorities over such estate, for all purposes of sale and convey- 
 ance, and also of remedy by entry, action, or otherwise, as if the same had 
 been devised to them to be sold, except where otherwise directed; and see, as to 
 New York, 4 Kent's Com. 321. In Fay v. Fay, 1 Cush. 94, trustees by will were 
 authorized and empowered " to grant and sell the whole or any part of the testa- 
 tor's estate, real or personal, with full power to execute deed or deeds effeotaa 
 in law to pass a complete title," and it was held that they had not the legal estate 
 See post, 471, &o. 
 
OF THE LEGAL ESTATE IN TEUSTEES. 335 
 
 II.— WHERE THE TRUST PROPERTY CONSISTS OF PERSONAL ESTATE. 
 
 The refinements and complication attending conveyances or de- 
 vises to uses, are confined to assurances of real estate ; and the more 
 simple mode of disposition of chattels personal seldom admits of any 
 question, as to the nature or quality of the estate given to the trus- 
 tees of such property. 
 
 As a general rule, the legal interest in a chattel will pass by an 
 assignment or bequest to the donee in trust.' 
 
 There is an exception to this rule in the case of ohoses in action, 
 which are not assignable at law; although it has been long settled, 
 that an assignment of an interest of that description for valuable con- 
 sideration will be recognised and enforced in equity.{l) It is there 
 regarded as in the nature of a declaration of trust on the part of the 
 assignor, and an agreement by him to permit the assignee to make 
 use of his name at law in order to recover the possession.(d) 
 
 Therefore if a bond, or other debt, or policy of insurance, the bene- 
 fit of a decree or judgment, or any other chose in action, be assigned 
 or bequeathed to a person in trust, the donee in trust will take only 
 an equitable interest, and the legal title will remain in the assignor, 
 or will devolve on his personal representative upon his death, as a 
 trustee for the person beneficially interested. (e) 
 
 Where the property may be made the subject of a legal transfer, — 
 as is the case with bills, or promissory- notes, shares, or stock in the 
 public or other funds, — an assignment, when completed and perfected 
 in the manner prescribed by the law, will of course operate to vest 
 the legal ownership in the trustee. But where the gift is by will, the 
 assent of the executor to the bequest will be necessary to complete 
 the legal title of the trustee. (/) 
 
 (d) Co. Litt. 232 (6), n. 1 ; 1 Mad. Exors. 547. [See the notes to Ryall 
 Ch. Pr. 686, 3d edit. v. Rowles 2 Lead. Cas. Eq. p. ii, 201.] 
 
 (e) 1 Mad. Ch. Pr. 686; 1 Wms. (/) 1 Wms. Exors. 526; 2 id. 843. 
 
 (I) The effect of a voluntary disposition or attempted disposition of a chose in ac- 
 tion in trust, and how far such a trust can be enforced, has been considered in a 
 previous chapter. 
 
 ' In the case of personal estate, it not being within the Statute of Uses, the legal 
 title remains in the trustee till the purposes of the trust are accomplished. Rice 
 V. Burnett, 1 Spear's Eq. 590 ; Schley v. Jones, 6 Georgia, 530. The equitable 
 interest of a husband in personalty under a marriage settlement, therefore, cannot 
 be taken in execution by his creditors. Rice v, Burnett ut supr., low v. Hodges, 
 1 Spear's Eq. 593. But where all the objects of the trust are at an end, the abso- 
 lute estate is in the person entitled to the last use. Possession in such case is 
 sufficient, without a formal conveyance. Rice «. Burnett, 1 Spear's Eq. 587; 
 Dunkin Ch. See Bringhurst v. Cuthburt, 6 Binn. 398. 
 
336 OF THE LEGAL ESTATE IN TRUSTEES. 
 
 • 
 
 It has been already seen that, -where the same person is ap- 
 pointed executor of a will as well as trustee, the probate of the will 
 by him will be an acceptance of the trust. (^) It sometimes becomes 
 material to ascertain the period at which the party has assumed the 
 latter character, and devested himself of the former ; for the powers 
 and liabilities of trustees and executors with regard to the adminis- 
 tration of the estate are not in *all respects identical •,{h) and 
 L -■ questions not unfrequently arise on acts of parliament, the 
 provisions of which apply to persons filling the one situation, but do 
 not apply to those in the other, (i) 
 
 It is frequently difficult to ascertain the precise time when the 
 possession in the character of executor or administrator ceases, and 
 that in the character of trustee commences. Every case must depend 
 upon its own circumstances. (A)^ In one case, a testator gave all his 
 real and personal estate to two persons (whom he afterwards ap- 
 pointed executors) in trust to sell for the benefit of his children ; and 
 he gave his wife an annuity of 2501. for her life, and all the residue 
 of his estate to his children absolutely ; the testator died in the year 
 1816. The executors had long since passed their accounts at the 
 stamp-office, and paid the testator's debts and legacies, and they had 
 purchased in their joint names a sum of stock sufficient to answer the 
 wife's annuity, the dividends on which were duly paid to her down 
 
 [Story's Eq. § 591; but in Pennsylvania Exors. 620. [Myers ». Davies, 10 B. 
 
 it is different; Holioback v. Vanbus- Monroe, 396.] 
 
 kirk, 4 Dall. 147.] (i) See Ex parte Dover, 5 Sim. 500; 
 
 (g-) Ante, p. [214 and notes]; 2Wms. Philippo v. Mannings, 2 M. & Cr. 309; 
 
 Exors. 1105; Mucklow v. Fuller, Jac. Denne -u. Judge, 11 East, 288. 
 198; Booth v. Booth, 1 Beav. 125. (4) See 1 Wms. Exors. 405,6 ;Byrch- 
 
 (fe) See Right v. Cathell, 5 East, 491 ; all v. Bradford, 6 Mad. 235. [De'Pey- 
 
 Denne v. Judge, 11 East, 288; 2 Wms. ster v. Clendinning, 8 Paige, 310; Py- 
 
 rum V. Mood, 2 McMull. 288.] 
 
 'A will contained the following clause: "For the purpose of having my 
 estate properly settled and administered during the minority of my children, I do 
 appoint my dear wife A. my sole executrix, and I do bequeath and devise the 
 same, both real and personal, to her, in trust, with full powers to sell, either at 
 public or private sale, all or any part thereof, and the proceeds to invest and 
 resell at her discretion, for the purpose of paying my debts and legacies, or for a 
 more advantageous investment, and good and sufficient deeds, &c., to make 
 therefor; it being my intention and will that my estate shall be kept together, 
 and held in common for her benefit and that of my children, until they shall 
 come of age respectively, at which time, and as soon after as any one of them 
 comes of age, he or she is to receive their proportion, it being always understood 
 that my wife is to receive an equal proportion of my estate, she and they having 
 share and share alike." It was held that this was a devise in trust to the wife 
 of all the estate, in her individually, and not as executrix, and that her refusal to 
 qualify as executrix did not affect the trust'. Hitchcock v. Bank of U. S., ^ 
 Alab. 386. 
 
OF THE LEGAL ESTATE IN TRUSTEES. 337 
 
 to January, 1834. The residue had been divided amongst the testa- 
 tor's children. In June, 1834, one of the trustees and executors 
 died ; and the other having gone abroad, the widow and children pre- 
 sented a petition, under Sir Edward Sugden's Act (1 "Will. IV. c. 60), 
 for the appointment of a new trustee ; on the ground that the original 
 executors and trustees had relinquished all control over the stock as 
 executors, and assumed the character of trustees, so as to bring them- 
 selves within the operation of the act. The Vice-Chancellor (Sir L. 
 Shadwell), in making the usual reference to the Master, directed an 
 inquiry as to the circumstances under which the stock was originally 
 invested and then remained in the names of the two executors ; and 
 upon the Master's report, finding that the surviving executor was a 
 trustee within the meaning of the act, his Honor subsequently made 
 the order as prayed by the petition.(Z) 
 
 In another case a testator amongst other bequests gave the sum of 
 400Z. to Buscall (whom he afterwards appointed executor) in trust to 
 invest, and pay the dividends to a party for life, and finally to pay 
 over the principal as directed by the will. The testator died in 1787. 
 The executor paid all the testator's debts and other legacies, and set 
 apart the sum of 400?. to answer the legacy in trust ; and he died in 
 the year 1799, having appointed the defendant Munnings his execu- 
 tor. The bill was filed in the year 1884 by the parties beneficially 
 entitled to the 400Z. legacy against Munnings for the payment of 
 that sum. The defendant by his answer admitted, that the sum of 
 400Z. had been set apart, and invested by Buscall on the trusts of the 
 will, and also that the same fund had been invested, and the income 
 received by himself ; but he insisted, that the suit, being to recover 
 a legacy, was barred by the 40th section of the recent Statute of 
 Limitations (3 & 4 Will. IV. c. 27). The Lord Chancellor (Lord 
 Cottenham), in deciding in favor of the plaintifis, observed, " The 
 whole fallacy of the defendant's argument consists in treating this 
 suit as a suit for a legacy. Now the fund ceased to bear the character 
 of a legacy, as soon *as it assumed the character of a trust i-^oqqt 
 fund. Suppose the fund had been given by the will to any- '- -' 
 body else, as a trustee, and not to the executor, it would then b,e 
 clearly the case of a breach of trust. What he would have done hy 
 •paying it to a trustee, he has done hy severing it from the testator's 
 property, and appropriating it to the particular purpose pointed out 
 by the will. It is impossible to consider that the executor, so acting, 
 is acting as an executor : he has all this while been acting as trus- 
 tee."(m)' 
 
 (/) Ex parte Dover, 5 Sim. 500. (m) Phillippo v. Munnings, 2 M. & 
 
 Cr. 309, 315. 
 
 ' Where one is both executor and trustee, the presumption after twenty years is 
 
 22 
 
338 OP THE EXTENT AND DURATION OF THE 
 
 This question can only arise respecting personal estate ; for when 
 real estate is given to persons in trust by a will, and the same per- 
 sons are also appointed executors, they will take the land as devisees 
 from the first, although the trust is to sell ; and will have nothing to 
 do with the real estate as executor s.{n) 
 
 C*239] ^CHAPTER 11. 
 
 OF THE EXTENT AND DUKATION OF THE ESTATE OF 
 
 TEUSTEES. 
 
 I. Where their Estate is ance, or stirrender, will 
 
 CREATED BY WlLL [239]. BE PRESUMED [253]. 
 
 II. Where their Estate is V. Of the Application of the 
 
 CREATED BY DeED [248]. STATUTES OP LIMITATION 
 
 III. Of THE Merger op their between Trustees and 
 
 Estate [252]. Cestui que Trusts [263]. 
 
 IV. In what Cases a Eeconvey- 
 
 I.— WHERE THEIR ESTATE IS CREATED BY WILL. 
 
 With regard to the extent and duration of the estate vested by 
 will in a trustee, previously to the recent Will Act (1 Vict. c. 26), 
 the general rule was, that the trustee took exactly that quantity of 
 interest which the purposes of the trust required ; and the question 
 was, — not whether the testator had used words of limitation, or ex- 
 pressions adequate to carry an estate of inheritance ; but whether 
 the exigencies of the trust demanded a fee, or could be satisfied by 
 any and what less estate. (a)' Therefore the estate devised to trus- 
 
 (n) Denne v. Judge, 11 East, 288. case cited; Co. Litt. 290, b, Butl. note 
 (a) 1 Jarra. Pow. Dev. 225, n. and VIII. 
 
 that the estate is fully administered, and that the funds are held in the capacity of 
 trustee. Jennings v. Davis, 5 Dana, 127. So, after the actual settlement of the 
 estate. State v. Hearst, 12 Mis. 365. In Graham v. Graham, 17 Jurist, 569, a 
 testator, by his will, devised and bequeathed the residue of his real and personal 
 estate to his wife J. G. and another person upon trust to sell and convert, as 
 therein mentioned, and appointed J. G. sole executrix. By a codicil he revoked 
 the appointment of his wife as executrix, " as the duties were too arduous for a 
 lady to perform," and appointed three other persons " executors in trust" of his 
 will. It was held by the Master of the Rolls that the testator did not revoke the 
 appointment of his wife as trustee. 
 
 As to when an executor may renounce as such, without affecting his character 
 as trustee, see ante, note to p. 190. 
 
 ■ See Payne v. Sayle, 2 Dev. & Batt Eq. 460 j Norton v. Norton, 2 Sandf. Sup. 
 Ct. 297; NiooU v. Walworth, 4 Denio, 385; Hawley v. James, 5 Paige, 318; 
 
ESTATE OF TRUSTEES OP A WILL. 339 
 
 tees would be either restricted, or extended, as the exigencies of the 
 trust required. And 
 
 1st. The estate of the trustees would be confined and restricted 
 to such a partial or less extensive interest, as would be sufficient to 
 carry out the purposes of the trust. 
 
 Thus, although the devise were expressly to the trustees and their 
 heirs, it has frequently been decided, that if the duties imposed on 
 the trustees required only an estate pur autre vie to be vested in 
 them, their legal interest would be cut down to that extent, notwith- 
 standing the express limitation to them in fee.(6)' 
 
 In the case of I^ord Saye and Sole v. Jones,(c) lands were devised 
 to trustees and their heirs in trust to pay several legacies and annui- 
 
 (6) Lord Saye and Sele v. Jones, 1 (c) Lord Saye and Sele v. Jones, 1 Eq. 
 
 Eq. Ca. Abr. 383; S. C. 3 Bro. P. C. Ca. Abr. 383 ; S. C. 3 Bro. P. C. 113. 
 
 113; Doe d. Player v. NichoUs, 1 B. [This case was commented on and 
 
 &Cr. 342; Chapman u. Blissett, Forr. questioned in Ex parte Gadsden, 3 Rich- 
 
 145; Shapland v. Smith, 1 Bro. C. C. ardson's Rep. App. 468] And see Doe 
 
 75; Doe v. Hicks, 7 T. R. 433 ; Nash d. Allen v. Ironmonger, 3 East, 533 ; 
 
 V. Coates, 3 B. & Aid. 839; Warter v. Robinson v. Grey, 9 East, 1, to the 
 
 Hutchinson, 5 Moore, 153, and 1 B. & same effect. [Doe v. Claridge, 6 C. 
 
 Cr. 721; 1 Jarm. Pow. Dev. 225, n.; B. 641.] 
 Co. Litt. 290, b, Buti. note; Heardson 
 V. Williamson, 1 Keen, 33. 
 
 Combry v. McMichael, 19 Alab. 751 ; Mr. Grifenleaf s note to Cruis. Dig. vol. 
 1, page 344. Under a statute making the use of the word " heirs," unnecessary 
 to carry a fee in a will, a devise to A., in trust for B. and her children, gives a 
 fee to the trustee, and on the death of the cestrM que trusts named, the trust does 
 not result, but descends to their heirs. Gill v. Logan, 11 B. Monroe, 233. 
 
 ' In Watson v. Pearson, 2 Exch. 593, the rule is laid down by Baron Parke, in 
 these words: "It is certainly true that where \he purposes of the trust on which 
 an estate is devised to trustees are such as not to require a fee in them, as for 
 
 to pay over rents and profits to a 
 trusts, the estate is given over, the 
 been held to take legal estates; 
 
 instance where the trust is to pay annuities, or 
 party for life, there, if, subject to the specified 
 parties taking under such devise over have 
 the estate given t^ the trustees (even when ifeiven with words of inheritance) 
 having been in such cases taken to have beeia meant to be co-extensive only 
 with the trust 1o be performed. This rule of construction has probably created 
 much more difficulty than it has obviated. It is, however, too well settled to be 
 now called in question." (See also Blagrave v. Blagrave, 4 Exch. 569.) He 
 proceeded; however, to say, " The general rulfe is that, that where an estate is 
 given to trustees, all the trusts which they are to perform must, prima facie at 
 least, be performed by them by virtue and in resifeot of the estate vested in them." 
 It was accordingly decided, that where a fee was expressly given to trustees, and 
 als6 a general power of sale, that the legal e.state in fee remained in them, 
 though the other trusts did not require so extensive an estate* So, in Blagrave v. 
 Blagrave, 4 Exch. 550, a similar conclusion was arrived at from the existence of 
 trusts to rdise annuities, and to mortgage for debts, &c. ; though in addition to 
 the circumstances of Watson v. Pearson, the ujterior 1 imitations were, in terms, 
 legal estates. See Brown v. Whiteway', 8 Hans, 156. 
 
340 OF THE EXTENT AND DURATION OF THE 
 
 ties, and then to pay the surplus rents into the proper hands of a 
 feme coverte ; and after her death to stand seised to the use of the heirs 
 of her body. It was decreed that the trustees took the legal estate 
 during the life of the married woman ; but that after her death it 
 vested in the heirs of her body : and the decree was affirmed by the 
 House of Lords after consulting with the Judges. 
 
 *So, in Chapman v. Blissett,(d) a testator devised all hia 
 L J real and personal estate to three trustees, their heirs and as- 
 signs, in trust to pay his son an annuity quarterly ; and he gave the 
 residue of the rents, to be applied during his son's life for the edu- 
 cation of his son's children ; and he then gave one moiety of the 
 estate to his son's children, and the other moiety to the children of 
 his grandson. Lord Talbot said, the whole depended on the testa- 
 tor's intent as to the continuance of the estate devised to the trus- 
 tees ; whether he intended the whole legal estate to continue in 
 them, or whether only for a particular time or purpose. Where par- 
 ticular things are to be done by the trustees, it was necessary that 
 the estate should remain in them ; so long at least as those particular 
 purposes required it.{d) 
 
 In like manner, where there were limitations in a will to trustees 
 and their heirs generally to preserve contingent remainders ; and the 
 estate, so given to the trustees, was not in terms confined to the life 
 of the person taking the immediately preceding freehold estate ; yet 
 it would be so confined in construction, if the will disclosed no other 
 intention or purpose, inconsistent with that construction. (e) How- 
 ever, as we shall presently see, great caution must be used in apply- 
 ing this rule of construction to a limitation contained in a deed.{f) 
 
 So, where there is a devise to trustees and their heirs until A. 
 attains twenty-one or any other age, and then in trust for A. ; it has 
 been long settled, that the trustees will take only a chattel interest 
 until A. reaches the specified age, not-withstanding the limitation of 
 the fee to them.{g) And the estate of the trustees has been so 
 restricted although there hrive been express trusts for the payment 
 of annuities and debts and legacies ;{h) or even a direction to them 
 
 (d) Chapman v. Blissett, Forr. 145; Doe d. Wheedon v. Lea, 3 T. R. 41; 
 S. C. Cas. Temp. Talb. 145, 150.. Stanley ij.Stanley, 16 Ves. 491; Waiter 
 
 (e) Doe V. Hicks, 7 T. R. 433 ; Nash v. Hutchinson. 1 B. & Cr. 721; Doe d. 
 r.Coates, 3 B. & Aid. 839. The counter Badder v. Harris, 2 Dowl. & Ry. 76; 
 decision in Boteler v. Allington, 1 Bro. Doe d.- Pratt v. Timins, 1 B. & Aid. 
 C. C. 72, cannot now be considered of 530 ; Doe d. Brune v. Martin, 8 B. & 
 any authority ; see Lord .Kenyon's re- Cr. 497. [Tucker v. Johnston, 16 Sim. 
 marks in Doe v. Hicks, 7 T. R. 437. 341.] 
 
 (/) Vide post, 248, &o. (ft) Warter v. Hutchinson, 1 B. & 
 
 (g) Goodlitle v. Whitby,, 1 Burr. 228 ; Cr. 72 1 . 
 
ESTATE OF TRUSTEES OF A WILL. 341 
 
 to convey to the cestui que trust on his attaining the required age.(«) 
 The same construction, restricting the estate of the trustees to a 
 chattel interest in such cases, will be adopted a fortiori, where there 
 is no express limitation to them in fee.{h) 
 
 Upon the same principle, a devise to trustees in fee, in trust for 
 a particular purpose only, — as to raise a sum of money, — has been 
 restricted to a base fee, determinable upon the satisfaction of the trust 
 by the raising of the sum.(Z) 
 
 In all these cases the construction is governed mainly by the 
 intention of the testator as gathered from the general scope of the 
 will. Therefore, where estates in remainder were given to trustees 
 subsequently to a limitation to them in fee, the court would con- 
 sider that to be sufficient evidence of the testator's intention that 
 the trustees should not take the *entire fee, under the first r^^n.-,-, 
 limitation,(m) for otherwise the subsequent limitations would •- -■ 
 be merely nugatory. Indeed, a term of years, limited to the trus- 
 tees subsequently to a limitation to them and their heirs, has been 
 held a sufficient reason to cut down the estate of the trustees into 
 one for life, even where the limitation was by deed.[n) 
 
 It will be doubtless observed, that in all the' cases which have been 
 hitherto cited, the devise has been only to the trustees and their 
 heirs, without expressly limiting the use to them ; consequently, they 
 took the legal estate only by construction, in order to enable them to 
 perform the trust, according to the principle which has been con- 
 sidered in the preceding chapter. 
 
 However, it seems that where the estate is limited expressly to 
 the use of the trustees and their heirs, their interest might notwith- 
 standing be restricted to an estate pur autre vie, if the trust required 
 that they should take only an estate so limited; — as where'the trust 
 was to preserve contingent remainders, or for any other purpose 
 confined to the duration of 3, particular life.(o) And it has been 
 decided, that this construction may prevail even in the case of a 
 deed.(p) But in these cases the court would require a very distinct 
 manifestation of intent, in order to control the effect of the legal 
 limitation. And it is observable, that in the several instances where 
 a limitation of that nature has been so restricted, the subsequent 
 
 (i) Stanley v. Stanley, 16 Ves. 491. also occurred in Hawkins v. Luscorabe, 
 
 (k) Boraston's case, 3 Co. 19; Doe 2 Svv. 375. [See Doe v. Claridge, 6 C. 
 
 d. Player v. NichoUs, 1 B. & Cr. 336. 660.] 
 
 (I) Glover v. Monckton, 3 Bingh. 13. (n) Curtis v. Price, 12 Ves. 89, 101. 
 
 (m) Doe V. Hicks, 7 T. R. 437 ; Nash (o) Hawkins v. Luscombe, 2 Swanst. 
 
 V. Coates, 3 B. & Aid. 839: and see 375, 391. 
 
 Warter ■;;. Hutchinson, 5 Moore, 153; {p) Curtis v. Price, 12 Ves. 89; and 
 
 S. C. 1 B. & Cr. 721 ; this circumstance see Venables v. Morris, 7 T. R. 342. 
 
342 OF THE EXTENT AND DURATION OF THE 
 
 limitations were expressly to the use of the persons taking the bene- 
 ficial interest, (gf)' 
 
 Where the limitation is to the trustees in fee, — whether they take 
 the legal estate by construction, from the nature of the trusts, or d 
 fortiori by the express limitation of the use to them(?') — their estate 
 would not be cut down into one pur autre vie, or any other partial 
 interest, unless the smaller estate were clearly suflBcient to carry out 
 the purposes of the trust. / 
 
 Thus in Harton v. Harton there was a devise to trustees and their 
 Tieirs, in trust to permit and suffer a feme coverte to receive the rents 
 for her separate use during her life, and after her decease then to the 
 use of her first and other sons in tail, with remainder to the use of 
 her daughters in tail ; with similar devises in remainder (but without 
 repeating the limitation to the trustees) in trust for other femes 
 eovertes and to the use of their respective children, and with an ulti- 
 mate devise to the testator's right heirs. It was held by the Court 
 of K. B., that the testator's object was to secure the beneficial enjoy- 
 ment of the estate to the several femes eovertes, which could only be 
 accomplished by the legal fee being vested in the trustees ; and the 
 Judges returned a certificate to that effect to the Lord Chancellor.(s) 
 Lord Eldon has assigned as a reason for this decision, that there were 
 various trusts for the separate use of married women, after various 
 r*9J.9n ^^^^^^ ^^^ ^°'' carried women, so that those trusts could not 
 ■- -I subsist, unless *the legal estate was in the trustees from the 
 
 (9) 1 Jam. Pow. Dev. 225, n. («) Harton v. Harton, 7 T. R. 652; 
 
 (r) See Venables v. Morris, 7 T. R. see Hawkins v. Luscombe, 2 Sw. 391 ; 
 
 342, 438. [and the remarks in 14 M. & W. 172.] 
 
 ' In Ex parte Gadsden, 3 Rich. R. 467, it was said by Chancellor Harper that 
 the rule appeared to be, so far as he could deduce any from the cases, "that if 
 the gift lo the trustee be general, without wiords of inheritance or limitation, he 
 will be construed to take a chattel interest, a life estate, or a fee, as the purposes of 
 the trust appear to require. But if it be to him and his heirs (provided any estate 
 at all is executed in the trustee), this imports a fee; though these words may be 
 restrained by other circumstances in the deed or will, which show that the donor 
 or devisor contemplated that the estate should be executed in some subsequent 
 taker, or after some event; or which are inconsistent with the notion of the fee's 
 continuing in the trustee." In that case, which was that of a deed, the limitation 
 was to the trustee, his heirs and assigns, in trust, first to raise annually the sum 
 of $800, to be paid to the grantor during his life, and after his death to permit 
 E. P., the wife of J. P., to hold and enjoy the premises to their sole use and 
 behoof; or in trust to sell the same or any part thereof, and to apply the proceeds 
 to the use of the said E. P. and her children, and have and share alike, to them, 
 their heirs and assigns for ever, freed from the debts and control of the husband. 
 Held, that the legal estate in fee remained in the trustee after the death of the 
 grantor and of the husband. 
 
ESTATE OF TKUSTEBS OF A WILL. 343 
 
 beginning to the end ; and he adds, that the court also relied on the 
 non-repetition of the legal estate. (*)* 
 
 And upon the same principle, where there was a devise to trustees 
 and their heirs, in trust by sale or mortgage to raise money for the 
 payment of debts and legacies, the whole legal fee will be vested in 
 the trustees ; for no less estate would enable them to perform the 
 trust.(M)^ Indeed, as we shall see presently, in such a case the trus- 
 tees would take the fee by construction without any words of limi- 
 tation.{x) And so where the trust was to demise at their discretion, 
 the trustees have been held to take the entire fee, the gift being to 
 them and their heirs.{y) 
 
 In like manner, where the devise was to trustees and their heirs to 
 pay the rents to certain persons, and then to convey to T. G^. in fee : 
 it has been held that the legal inheritance vested in the trustees, to 
 enable them to make such a conveyance.(s) And a direction, that 
 the real property shall be equally divided between the cestui que 
 trusts by the trustees, has also been held to give them the legal fee, 
 for that is equivalent to a direction to convey, (a) \ 
 
 2d. In the absence of any express words of limitation, suflScient to 
 carry the legal inheritance, the estate of the trustees would be en- 
 
 (t) Hawkins 1). Luscorabe, 2 Sw. 391. 354. [See Doe v. Cafe, 11 Eng. L. & 
 
 (u) Bagshaw v. Spencer, 1 Ves. 142; Eq. 579.] 
 Keene v. Deardon, 8 East, 248; Doe d. (z) Garth v. Baldwin, 2 Ves. 646; Doe 
 
 Cadogan v. Ewart, 7 Ad, & E. 636, 648. d. Shelley v. Ediin, 4 Ad. & Ell. 582 ; 
 
 (a:) 1 Ves. 144; and vide post. Doe d. Booth v. Field, 2 B. & Ad. 564. 
 
 ly) Doe d. Tomkins v. Willan, 2 B. (o) Doe d. Eees v. Williams, 2 M. & 
 
 & Aid. 84; Doe d. Keen v. Walbank, id. W. 749. 
 
 1 : 
 
 • Harton v. Harton was recognised in Blagrave v. Blagrave, 4 Excheq. 570 ; 
 and in a very similar case, Brown v. White way, 8 Hare, 156, was followed by 
 Vice-Chancellor Wigram, as binding on him until reviewed by a court of law. 
 But he remarked, at the same time, " I do not see why in that case (Harton v. 
 Harton) it was necessary to hold that the intermediate estates should not be good 
 legal estates;" though he added, "I must not be understood to say anything 
 against that case. It is a decision unshaken." In Tucker v. Johnson (16 Sim. 
 341), however, where there was a devise to A. and B. and their heirs to the use 
 of the testator's son for life ; remainder in trust that the trustees or the survivor 
 should pay and apply the rents and profits, or so much thereof as they or he 
 should think proper, for the maintenance of his son's younger children, during 
 their minority; and after all the children should have attained the age of twenty- 
 one, to the use of them, their heirs and assigns; it was held, that the son took 
 the legal estate for life, remainder to A. and B. for a chattel interest, remainder 
 to the son's younger children in fee. 
 
 2 Watson V. Pearson, 2 Exch. 594; even though there be subsequent limitations, 
 giving the legal estate in express terms. Blagrave v. Blagrave, 4 Exch. 570. But 
 a mere direction to the trustees to pay debts and funeral expenses, and a devise 
 (without words of inheritance) of the estate to them, subject thereto, will not give 
 a fee. Doe v. Claridge, 6 C. B. 641. 
 
344 OF THE EXTENT AND DURATION OF THE 
 
 larged and extended into such an estate as the nature and purpose 
 of the trust required.' 
 
 Thus, where there was a devise of real estate to trustees simply 
 (without adding any words of limitation) in trust to sell; it has been 
 decided, that the trustees would take the fee by construction. (a) And 
 so where the trust was to sell the whole, or a suflScient part, the con- 
 struction would be the same ; for, said Lord Hardwicke, as it is un- 
 certain what they may sell, no purchaser would otherwise be safe.(i) 
 And it seems that a trust to convet/,{c) or lease at discretion, (df would 
 have the effect ; for a less estate would not suffice for those purposes. 
 
 And where the devise is to the trustees, their executors, adminis- 
 trators, and assigns, in trust expressly to sell, it is settled that the 
 trustees would take the fee, and not a mere chattel interest, as the 
 nature of the trust would not be satisfied by a less estate. (e) And , 
 this construction would be more readily adopted where personal 
 estate jvas included in the devise to the trustees ; for the limitation 
 to the executors could then operate upon the personalty.(/) 
 
 Where there was a devise of real estate to persons without words 
 
 of limitation, in trust to pay debts, annuities, or legacies, and no sale 
 
 was *expressly directed, it does not appear to have been settled 
 
 ■- -J whether the trustees would take the inheritance, or a chattel 
 
 interest for a term of years. 
 
 (o) Shaw V. Weigh, 1 Eq. Ca. Abr. (d) Doe d. Keen v. Walbank, 2 B. & 
 
 184; Gibson v. Lord Montfort, 1 Ves. Ad. 554. 
 
 491; S. C. Ambl. 95. [See Chamber- (e) Gibson v. Lord Montfort, 1 Ves. 
 
 lain V. Thompson, 10 Conn. 244; Wat- 491, and Ambl. 95; 1 Jarm. Pow. Der. 
 
 son 1J. Pearson, 2 Exch. 594.] 226, n.; Heardson v. Williamson, 1 
 
 (6) Bagshaw v. Spencer, 1 Ves. 144. Keen, 33, 41. 
 
 (c) Doe d. Booth v. Field, 2 B. & Ad. (/) 1 Ves. 491 : [Ex parte Gadsden, 3 
 
 556. Rich. R. 468] : but see Doe d. White v. 
 
 Simpson, 5 East, 162. 
 
 ' Fisher v. Fields, 10 Johns. R. 505; Raekham v. Siddall, 1 MacN. and Gordon, 
 607; 2 H. & Twells, 44; Blagrave v. Blagrave, 4 Exch. 569. 
 
 ''See Brewster v. Striker, 2 Comstock, 19. But in Doe v. Cafe, 11 Engl. L. & 
 Eq. 576, it was said "that a power to lease affords an argument of weight in favor 
 of the legal estate being intended to be given to trustees; but it isnot conclusive." 
 In that case a testator devised to trustees a house and premises upon trust to receive 
 the rents and pay the same to his daughter, and after her decease to apply them to- 
 wardsthe maintenance and education of his daughter's children then living, during 
 their minority ; and upon the youngest living of his daughter's children attaining 
 the age of twenty-one years he devised as follows : — " I give and devise the said 
 house and premises unto all the children of my said daughter, who shall be then 
 living, in equal shares and proportions, share and share alike." Other houses were 
 also devised to trustees, who had a limited authority to lease the whole; and an 
 estate in fee was devised to one of the daughter's children on his attaining 
 twenty-one years. It was held, that the estate given to the trustee was restricted 
 to the life of the daughter, and the minority of all her children ; that the devise 
 over was a direct devise to the children, and not in trust for them ; and that they 
 took life estates as tenants in common in the houses and premises. 
 
ESTATE OF TllUSTEBS OF A WILL. 345 
 
 In Cordall's case (the earliest in which this question arose), there 
 was a devise to two persons, to hold for payment of debts and lega- 
 cies, and afterwards to A. for life, with remijinders over ; and it was 
 resolved, that this was no freehold in the devisees, hut only a term 
 of years, " though it could not be said for any certain number of 
 
 years.'X^') 
 
 So, in Carter v. Barnadiston, a testator directed, that in case of 
 the deficiency of his personal estate, his executors should receive the 
 profits of his whole real estate for the payment of his debts and lega- 
 cies ; and after those should be paid, he devised the real estate to 
 different persons for life and in fee ; and it was decided by the House 
 of Lords, that the executors took only a chattel interest for the pay- 
 ment of debts.(A) 
 
 In Kitchens v. Kitchens the devise was, that if the testator's 
 stock, &c., should not be sufficient for the payment of his debts and 
 legacies, his executors should pay the same out of the rents and pro- 
 fits of h\s real estate; and when debts and legacies were paid, he de- 
 vised his real estate to his son in tail with remainder over ; the court 
 held, that the estate in the executors was but a> chattel interest.{i) 
 
 The decision in Popham v. Bampfield, that the devise of an estate 
 tail to the use of A. in remainder after a devise to trustees for the 
 pa.yment of debts, vested the use and legal estate in A., may, as we 
 have already seen, be reconciled with the other authorities, if the 
 trustees were held to take a chattel interest in the devised estate. (A) 
 
 However, in Gibson v. Lord Montfort, a testator gave all his free- 
 hold, leasehold, and personal estate, to trustees, their executors, ad- 
 ministrators, and assigns, in trust to pay several annuities, sums, and 
 legacies, on the deficiency of the personal estate, out of the rents, 
 issues, and profits arising by the real estate, and gave the residue of 
 his real and personal estate, after provision being made for the 
 payment of the legacies, &c., over : Lord Hardwicke held, that the 
 purposes of the trust could not be satisfied by the annual perception 
 of the rents and profits by the trustees, in which case only could 
 they tahe a chattel interest : but that the legacies must be raised by 
 the sale of the real estate, for which purpose the trustees must take 
 the legal inheritance.(Z) His Lordship seems to have attached con- 
 siderable importance to the expression " arising," as showing that the 
 trustees were not to be confined to the annual profits only. 
 
 It will doubtless be remarked, that in this case the estate was 
 
 (g) Cordall's case, Cro. Ell. 315; see- (k) Popham v. Bampfield, 1 Vern. 79; 
 
 Manning's case, 8 Rep. 96. ante, p. 21], n. (1) 
 
 (h) Carter v. Barnadiston, 1 P. Wms. {I) Gibson v. Lord Montfort, 1 Ves. 
 
 506, 9. 485, 491 ; S. C. Ambl. 93, 5. 
 
 (i) Kitchens v. Kitchens, 2 Vern. 404. 
 
346 OP THE EXTENT AND DUKATION OE THE 
 
 limited to the trustees, their executors, administrators, and assigns : 
 at first sight, therefore it would seem not to apply to the question 
 now under discussion, viz., the case of a devise to trustees for pay- 
 ment of debts without any words of limitation. But Lord Hard- 
 wicke in his judgment observed, that the devise included both free- 
 holds and leaseholds, and on that ground he restricted the operation 
 of the term " executors" to the leaseholds, and ^treated the de- 
 L -^ vise of the freeholds as if it had been made to the trustees and 
 their assigns without any terms of limitation. (»i) The case is therefore 
 a direct and very strong authority on the point in question, deciding 
 that a devise to trustees to pay debts and legacies without any words 
 of limitation may in certain cases give them an estate in fee simple. 
 
 In Wykham v. Wykham, a tenant for life under a will was empow- 
 ered to limit or appoint all or any part of the estate to trustees, 
 upon trust hy the rents and profits thereof to raise and pay a yearly 
 rent-charge as a jointure for his wife. The tenant for life exercised 
 this power by deed, appointing the estate of trustees and their heirs, 
 in trust by the rents and profits to raise and pay a jointure rent- 
 charge of 500Z. On a case sent to the Court of King's Bench the Judges 
 certified, that the trustees took an estate infee;{n) the same question 
 was then sent for the opinion of the Court of Common Pleas, and 
 the Judges there held that the trustees took no legal estate. (o) But on 
 the hearing of the cause before Lord Eldon, his Lordship stated the 
 strong inclination of his mind to be, that the proper mode of securing 
 the rent-charge would have been by vesting in the trustees a term of 
 ninety-nine years, if the jointress should so long live.(p) It there- 
 fore seems to follow, that if the devise had been directly to the trus- 
 tees, upon trust, to raise and pay or secure the annuity without any 
 words of limitation. Lord Eldon would have held, that they took a 
 chattel interest for a term of years determinable on the death of the 
 annuitant. 
 
 The court will be reluctant to extend the estate of the trustees be- 
 yond the interest expressly given them by the terms of the limita- 
 tions. (g') If therefore the estate be limited in express terms to the 
 trustees, their executors, administrators, and assigns for the payment 
 of annuities, or debts, or legacies ; it is clear that they would have 
 only a chattel interest, unless the general nature and object of the 
 trust (as in Gibson v. Lord Montfort) required that the inheritance 
 should be vested in them.(r) 
 
 In Doe d. White v. Simpson a testator devised to two trustees and 
 
 (m) 1 Yes. 491, Ambl. 95. (p) Wykham v Wykham, 18 Ves. 
 
 (Ji) Wykham t). Wykham, 11 East, 395, 416. 
 458. (g) 1 Jarm. Pow. Dev. 231, n. 
 
 (o) Wykham v. Wykham, 3 Taunt. (r) Heardson v. Williamson, 1 Keen, 
 316. 33, 41. 
 
ESTATE OF TRUSTEES OP A WILL. 347 
 
 the survivor, and the executors and administrators of the survivor, 
 certain lands, together with the arrears of rent, and a bond and 
 judgment given by a tenant for rents then due, in trust out of the 
 rents, and profits, and arrears to pay two life annuities, and then in 
 trust out of the residue of the rents and profits to pay 8001. to cer- 
 tain persons, and after payment of the annuities, and 8001. he de- 
 vised the estate to a person for life with remainders over. There 
 was a power for the trustees and the survivor, his executors, &c., to 
 grant building-leases, as often as there should be occasion, for any 
 number of years. It was held that the trustees took an estate for 
 the lives of the annuitants, together with a term of years suflScient 
 for raising the 800?., and not the fee.{s) 
 
 In Gibson v. Lord Montfort, Lord Hardwicke recognised the vali- 
 dity of the objection, that the gift of real estate to trustees, their ex- 
 ecutors, &c., was descriptive of a chattel not passing the inheritance 
 to them; but his *Lordship considered, that the objection r^oAc-i 
 had no weight in the case before him by reason of the per- 
 sonal estate, which was included in the devise to the trustees. («) 
 However, it is to be remarked, that in Doe d. White v. Simpson, the 
 devise was of real and personal estate combined ; and the Court of 
 King's Bench not only did not consider that circumstance a reason 
 for holding that the trustees should take the fee ; but on the contrary 
 relied much on that fact in coming to the decision, that they took 
 only for a term of years.iu) 
 
 The latest case on this subject is that of Heardson v. Williamson. 
 There a testator, after his wife's decease, in case certain mortgage 
 debts were not then paid off, gave and devised his real estate to two 
 trustees and the survivor, and the executors and administrators of the 
 survivor, in trust to let the same, and apply the rents for payment of 
 the mortgage debts, until the whole should be fully paid off and dis- 
 charged by the gradual receipt of the rents and profits ; and from and 
 after the payment of his mortgage debts, as aforesaid, he gave and 
 devised the estate to his son and his assigns for life ; and after his 
 son's decease, to such child or children as his said son should have 
 lawful issue of his body as tenants in common in fee, with remainder 
 in default of such issue to his three other sons in common in fee. The 
 mortgage debts were paid off by the trustees after the death of the 
 wife ; and the testator's son, having no child, executed a deed under 
 the Fines and Recoveries Act, with the view of barring the subse- 
 quent contingent remainders, and vesting the entire fee in himself. 
 The efficacy of this deed depended upon whether the legal fee was or 
 
 (5) Doe d. White v. Simpson, 5 East, 491 ; S. C. Gibson v. Rogers, Ambl. 95. 
 162. (it) Doe d. White v. Simpson, 5 East, 
 
 (J) Gibson v. Lord Montfort, 1 Ves. 172. 
 
348 OF THE EXTENT AND DURATION OF THE 
 
 was not vested in the trustees of the will, for if it were, that estate 
 would have supported the contingent remainders ; and this was the 
 question which called for decision in the case. It was held by the 
 Master of the Rolls (Lord Langdale), that the trustees took only an 
 estate until the mortgage debts were paid ; and the debts having been 
 paid oiF, the trust ceased, and the legal estate vested in the plaintiff, 
 the testator's son.(a;)^ 
 
 It may be observed here, that a limitation of real estate to trus- 
 tees, their executors, administrators, and assigns, will clearly give 
 them an estate in fee simple, if the purposes of the trust require it.{y) 
 
 A devise to trustees in the first instance simply, without any words 
 of limitation, followed by a direction, that they and their heirs shall 
 raise and pay debts and legacies, is not tantamount to a direct devise 
 to them in fee, and they will take only such an estate as is sufficient 
 to enable them to discharge the trust by paying the debts and lega- 
 cies, (z) 
 
 On examination of the cases in which the estate of devises in trust 
 for the payment of debts, &c., has been confined to a chattel interest, 
 it will be found, that in all of them the payment was directed to be 
 made out of the rents and profits : and it was admitted by Lord Hard- 
 
 (x) Heardson v. Williamson, 1 Keen, 33, 41. [See Ex parte Gadsden, 3 Rich. 
 
 33. 468.] 
 
 (?/) Gibson v. Lord Montfort, 1 Ves. (z) Aokland v. Lutley, 9 Ad. & EIL 
 
 491 ; Heardson v. Williamson, 1 Keen, 879. 
 
 'By a will made before 1837, A. directed E. and F. to pay and discharge all 
 his debts and funeral expenses, and subject thereto, he devised a freehold mes- 
 suage to E. and F., in trust to permit and suffer B., his widow, to reside therein 
 for life, free and clear of rent or taxes ; and after her decease, he devised the 
 same messuage to E. and F., and the survivor of thera, his executors, and adminis- 
 trators, in trust to permit and suffer his daughter C. to receive and take the rent 
 thereof for her life, free from the control ofjier husband : and after his daughter's 
 decease, he devised the same messuage to E. and F., their executors and adminis- 
 trators, upon trust to pay and apply the rent thereof for the use and benefit of his 
 grandson D., in the event of his not having attained the age of twenty-one at the 
 time of the decease of the testator's wife and daughter ; and upon D.'s attaining 
 twenty-one, the testator devised the same messuage to him for life. Then, after 
 a certain contingent devise, which never took effect, and after giving certain lega- 
 cies, the testator gave, devised, and bequeathed all the rest, residue, and remain- 
 der of his estate and effects unto and between his said wife and daughter, share 
 and share alike, — " the share of his said daughter independent of the debts, con- 
 trol, or engagements of her present or any future husband, in manner e^oresaid;" 
 and he named the said E. and F. executors and trustees of his said will : — C. 
 having survived B., and D. leaving daughters only, it was held, that the legal 
 estate in a moiety of the remainder in fee vested in those daughters, as co-heirs 
 of C, and not in E. and F., the executors and trustees. Doe v. Claridge, 6 C. B. 
 641. 
 
ESTATE OF TRUSTEES OF A WILL. 349 
 
 ■wicke, in Gibson u. Lord Montfort, that a chattel interest in the trus- 
 tees would sufiBce for that purpose, but for that purpose alone.(a) 
 
 *Therefore, if there be a devise to trustees without any r-^n.r,-, 
 words of limitation, or a fortiori to trustees, their executors, ^ J 
 administrators, and assigns in trust, out of the rents and profits to 
 pay debts or legacies ; and if from the amount or nature of the pay- 
 ments to be made, as well as the general scope of the trust, the pay- 
 ments may well be discharged by an annual perception of the profits, 
 and no sale or other anticipation of the income is necessary for that 
 purpose ; the authorities, without exception, establish that the trustees 
 will take only a term of years sufficient for raising the required 
 moneys, and no estate of inheritance will vest in them. (6) And the 
 fact of the devise being to the persons who are appointed executors, 
 would seem to be in favor of this construction, (c) 
 
 But if from the terms of the devise, or the nature of the payments 
 to be made, it appears that the devisees in trust are not to be re- 
 stricted to the perception of the annual income of the estate, but are 
 at liberty to raise the required sums by sale of all or any part of the 
 estate, then, according to Lord Hardwicke's decision in Gibson v. 
 Lord Montfort, the legal inheritance will necessarily be vested in 
 the trustees ;((^) and this although the devise be to the trustees, their 
 executors and administrators.{e) 
 
 If the case of Doe d. White v. Simpson cannot stand as an au- 
 thority with that of Gibson v. Lord Montfort (and it is certainly dif- 
 ficult to reconcile the two decisions), the former case appears to be 
 at once more consistent with the stream of authorities than the latter, 
 as well as more in accordance with the general principles of con- 
 struction which prevail in these cases: for the tendency of the- de- 
 cisions is to confine and restrict, rather than enlarge, the estate of 
 trustees. Even if a sale were necessary for the purpose of raising 
 the required sums, it by no means follows that the entire inheritance 
 must be disposed of for that purpose ; for this might obviously be 
 accomplished with equal facility by a sale or mortgage for a term of 
 years only. 
 
 However, assuming that in such a case the trustees would take 
 merely a chattel interest, a difficulty still remains to be disposed of, 
 which is left almost untouched by the authorities, viz., the length or 
 duration of the term of years which would be vested in the trustees. 
 
 In Cordall's case the court expressly refused to decide that 
 
 (a) 1 Ves. 491. 589; Kitchens ij. Hitchens, 2 Vern. 404-; 
 
 (6) Cordall's case, Cro. Eliz. 315; Co. Lilt. 42, a. 
 Wykham o. Wykhara, 18 Ves. 416; (d) Gibson v. Lord Montfort, 1 Ves. 
 Heardson v. Williamson, 1 Keen, 33. 485; S. C. Ambl. 93. 
 
 (c) Carter v. Barnadiston, 1 P. Wms. (e) Heardson v. Williamson, 1 Keen, 
 
 41. 
 
350 OF THE EXTENT AND DURATION OP THE 
 
 point.(/) According to the reports of Carter v. Barnadiston,(^) and 
 Hitchins v. Hitchins,(A) it was left undetermined in each of those 
 cases; and in Doe d. "White v. Simpson it was merely held, that the 
 trustees took a term of years sufficient for the purpose of raising the 
 S00l.,(i) certainly a most vague and unsatisfactory limit, whereby to 
 ascertain the determination or continuance of the legal interest in 
 real estate. The circumstances of Heardson v. Williamson, (A) ren- 
 dered it unnecessary to decide the point in that case. The difficulty, 
 therefore, is one for which it is *very difficult to lay down any 
 L J satisfactory solution ; and it doubtless forms a very serious 
 practical objection to the construction, which gives to the trustees in 
 such cases only a chattel interest, and an equally strong argument 
 in favor of their taking the fee. 
 
 A devise to trustees, without the addition of any words of limita- 
 tion, in trust, to pay the rents and profits to a person or persons /or 
 life, followed by a gift of the estate over, will give the trustees an 
 estate, during the life of the cestui que trust, for life;(Z)' as we 
 have already seen, that a devise to the trustees and their heirs on a 
 similar trust will be cut down into a life estate, (m) 
 
 And a similar devise to trustees in trust for an individual until 21, 
 or any other specified age, will give them a chattel interest only, de- 
 terminable upon the cestui que trust's attaining that age, or dying 
 before.(n) 
 
 Where the trust is to pay an annuity out of the rents to a person 
 during life, the estate of the trustee might in like manner be limited 
 to the continuance of the life of the annuitant ; and the difficulty 
 attending the raising and paying of debts, or any gross sum, would 
 not therefore arise. 
 
 However, there appears to be some discrepancy in the authorities, 
 as to whether the trustees in such a case would take a freehold in- 
 terest for the life of the annuitant, or a chattel interest for a term of 
 years determinable on his death. In Doe d. White v. Simpson,(o) it 
 was held that the trustees took a freehold estate ;(o) but in Wykham 
 
 (/) Cordall's case, Cro. El. 315. (m) Vide supra. 
 
 Ig) 1 P. Wms. 509. (n) Doe d. Player v. Nicholls, 1 B. 
 
 Qi) 2 Vern. 404. & Cr. 336; Doe d. Cadogan v. Ewart, 
 
 (i) 5 East, 162; and see Ackland t). 7 Ad. & Ell. 636, 667. [See Doe v. 
 
 Lutley, 9 Ad. & EU. 879. Davies, 1 Q. B. 43.] 
 
 {k) 1 Keen, 33. (o) 5 East, 162; and see Jenkins u- 
 
 (0 Shapland v. Smith, 1 Bro. C. C. Jenkins, Willes, 650. 
 
 75; Doe d. Cadogan v. Ewart, 7 Ad. '& 
 
 Ell. 636, 667. 
 
 ' See Payne v. Sale, 2 Dev. & Batt. Eq. 455, where the use of the inartificial 
 word " lend" by a testator was considered to control other expressions, and to 
 give only a life estate to trustees. 
 
ESTATE OF TRUSTEES OF A WILL. 351 
 
 V. Wykham,(p) it appears to have been Lord Eldon's opinion, that 
 the proper interest to be given them would be a term for ninety-nine 
 years, determinable on the death of the annuitant.(p) 
 
 The object of the trust would be equally answered in either case ; 
 but the question may sometimes become one of practical importance, 
 as determining in whom the first legal freehold estate is vested. 
 
 Where a series of limitations are contained in a will, the mere alte- 
 ration of the language in any of the subsequent limitations, by the 
 use of words of direct gift to the person taking the beneficial interest, 
 instead of the expression "m trust for," which had been previously 
 employed, would not have the eff'ect of determining the legal estate 
 in the trustees, and vesting it in the beneficial takers, if the purposes 
 of the will required that the legal interest should continue in the 
 trustees for a longer period.(5') However, such a mode of wording 
 would doubtless have its effect in determining the construction in a 
 doubtful case. 
 
 A devise to trustees to preserve contingent reniainders, without 
 any words of limitation, would give them an estate fur autre vie ; 
 and this estate would not be enlarged into a fee by a power given to 
 the same trustees " generally, to do all necessary acts to effectuate 
 his intentions as to the disposition of the estate." For such a direc- 
 tion only means, that they should have such powers as are incident to 
 their character of trustees to preserve contingent remainders. (r) 
 
 *And an estate to preserve contingent remainders would 
 not in any case be so enlarged, if the effect of such a con- L ■^^''J 
 struction would be to contradict, or disappoint, other dispositions in 
 the will.(s) ■ 
 
 The question as to the duration of the estate of the trustees can 
 rarely arise where the subject is personal estate ; for in that case the 
 whole legal interest is in general vested in the trustees by a gift, with- 
 out any words of limitation, and will continue in them until devested 
 by a legal transfer or assignment.(i) 
 
 Such was the very unsatisfactory state of the law on this subject 
 previously to the recent Will Act (1 Vict. c. 26). The uncertainty 
 and inconvenience of the existing doctrine called imperatively for the 
 legislative remedy, which is provided by that statute. By the 30th 
 section of that act it is enacted, that any devise of real estate (not 
 being a presentation to a church) to a trustee or executor shall be 
 
 ip) 18Ves.416. 314; see Co. Litt. 290, b, Butl. nole 
 
 (5) Doe d. Tomkyns v. WilJan, 2 B. VIII. 
 
 & A1.84;Murthwaitev.Jenkinson,2B. (s) Thong v. Bedford, 1 Bro. C. C. 
 
 & Cr. 357; see Sanford v. Irby, 3 B. & 315. 
 
 Al. 654; 1 Jarm. Pow. Dev. 230, n. (<) See Elton v. Shephard, 1 Bro. C. 
 
 (r) Thong 1). Bedford, 1 Bro. C. C. C. 531; 2 Jarm. Pow. Dev. 631. 
 
352 OF THE EXTENT AND DURATION OF THE 
 
 construed to pass the fee simple, or other the whole estate or interest 
 of the testator, unless a definite term of years or an estate of free- 
 hold shall be given him expressly by implication. And by the 31st 
 section where real estate shall be devised to a trustee without any ex- 
 press limitation of the estate, and the beneficial interest shall not be 
 given to any person for life, or if given for life, the purposes of the 
 trust may continue beyond the life of the first cestui que trust, the 
 trustee will take the fee simple and not an estate determinable on 
 the satisfaction of the trust. 
 
 The provisions of the act of course do not at all affect trusts created 
 by deed, which are still governed by the old doctrine. And they 
 apply only to wills made after the 1st of January, 1838. 
 
 The effect of these enactments is, that all devises to trustees, con- 
 tained in wills made since the 1st of January, 1838, will give them an 
 estate in fee simple without any words of limitation, unless the interest 
 of the cestui que trust is limited to him expressly for life, and the 
 trusts are such, that they cannot by any possibility continue beyond 
 the life of the beneficial tenant for life. This, construction, however, 
 is excluded, where a term of years or a partial freehold estate is ex- 
 pressly limited to the trustees. 
 
 II.— WHERE THE ESTATE OF THE TRUSTEES IS CREATED BY DEED. 
 
 In wills the intention of the testator is allowed much greater lati- 
 tude in controlling and modifying the words, than is admitted in the 
 construction of deeds; consequently, the decisions in the. former case 
 must be very cautiously received as authorities in the latter.(M)' 
 
 However, it has been decided that even in a deed a limitation to the 
 use of trustees and their heirs may be restricted to an estate pur 
 autre vie, by a necessary implication arising from the object of the 
 trust, coupled with the nature of the subsequent limitations. The 
 case alluded to is that of Curtis v. Price •,{x) there, by a post-nuptial 
 settlement made after the marriage of Martin and Eleanor Barry, 
 certain lands were conveyed by *the husband to Powell and 
 '- -J James, their heirs and assigns, to the use of the husband for 
 life, with remainder to the use of the wife during her life, if she 
 should continue unmarried ; but if she should marry, then to the use 
 
 (u) Co. Litt. 290, b, Bull, note VIII.; But see Chamberlain v. Thompson, 10 
 
 see Colmore v. Tyndal, 2 Y. & J. 605. Conn.244; Nicolli). Walworth, 2 Denio, 
 
 [Dinsraore v. Biggert, 9 Barr, 135; 385.] 
 
 Combry D. McMichael, 19 Alab. 751. {x) Curtis i;. Price, 12 Ves. 89. 
 
 'In Welch v. Allen, 21 Wend. 147, it was held, that a patent to a trustee 
 without words of perpetuity, gave him nevertheless a fee. 
 
ESTATE OP TRUSTEES OF A WILL. 353 
 
 and behoof of Powell and James and their heirs, upon trust out of 
 the rents and profits to pay an annuity of 50Z. to the wife during her 
 life, and with the rest of the rents, &c., to maintain the children of 
 the marriage ; and after the death of both the husband and wife to 
 the use of the same trustees, their executors, ^e., for the term of 100 
 years, with remainder to the use of the heirs of the body of the wife 
 by the husband, with remainder to the right heirs of the husband. The 
 husband died in the lifetime of the wife, who married again ; and one 
 of the questions was whether the limitation to the use of the heirs of 
 the body of the wife was a legal remainder : for the remainder in that 
 case would have coalesced with her prior estate for life according to 
 the rule in Shelly's case, so as to give her an estate tail. And this 
 depended upon whether the legal estate in fee simple was vested in 
 the trustees by virtue of the limitation to the use of them and their 
 heirs ; for if they took the entire legal fee, the subsequent limitations 
 were of course mere equitable estates, which could not coalesce with 
 the wife's prior legal estate for life. It was held by Sir William 
 Grant, M. R., that the trustees took only an estate during the life 
 of the wife, although, as we have seen, the limitation in the deed was 
 expressly to the use of them and their heirs, without any such restric- 
 tion, (a;) 
 
 His Honor rested his decision in this case, partly on the circum- 
 stance of the trust requiring only an estate for life in the trustees, as 
 in Doe v. Hicks •,{y) but principally on the subsequent limitation of 
 the term of 100 years to the same trustees. A limitation, which could 
 only be made to take effect by restricting the interest of the trus- 
 tees to an estate for the life of the wife.(2) 
 
 It will be observed, that the limitation in Curtis v. Price was ex- 
 pressly to the use of the trustees and their heirs : its authority there- 
 fore applies a fortiori to cases where the estate is limited simply to 
 them and their heirs, without any declaration of the use, and where 
 they consequently take the use and legal estate by construction from 
 the nature of the trust. 
 
 In Venables v. Morris,(a) after some previous limitations contained 
 in a deed, there was a limitation to the use of a feme coverte for life, 
 with remainder to the use of two trustees and their heirs, in trust to 
 support the contingent uses and estates thereinafter limited (but 
 without confining the estate of the trustees to the continuance of the 
 preceding life estate), with remainder after certain estates limited in 
 use to the sons and daughters of the marriage, to the use of such per- 
 sons for such estates, &c., as the wife should appoint, (a) 
 
 (i) Curtis V. Price, 12 Ves. 89. (o) Venables v. Morris, 7 T. R. 342 
 
 (y) 7 T. R. 433. ,& 438. 
 
 {z) Curtis V. Price, 12 Ves. 100, 1. 
 
 28 
 
354 OF THE EXTENT AND DURATION OP THE 
 
 On a case sent by the Lord Chancellor for the opinion of the Court 
 ' of King's Bench, the judges certified, that the trustees took the legal 
 fee under the limitation to them in the deed ; on the ground, as was 
 observed by Lord Kenyon on another occasion, that if the wife, in 
 r-^nrf^-i exercising her *power of appointment, had introduced any 
 L J contingent remainders, they might all have been defeated if 
 the uses were not executed in the trustees.(6) 
 
 It is observable, that the court in deciding Venables v. Morris, did 
 not rest their judgment upon any difference between the effect of a 
 limitation by deed and one by will. So far therefore it is certainly 
 a negative authority in favor of the non-existence of any such dis- 
 tinction ; and was alluded to as such by Sir William Grant in Curtis 
 V. Price, (c) 
 
 With the exception however of that negative authority, such as it 
 is, the case of Curtis v. Price is the only one in which it has been de- 
 cided, that an estate in fee simple, expressly limited by deed to trus- 
 tees, can be cut down by mere implication into any less exensive 
 interest. And that case might be regarded as rather a strong deci- 
 sion, even if it had arisen on a will; for there were some trusts rela- 
 tive to an advowson, and to the advancement and preferment of the 
 children, which rendered it open to argument that an estate in fee 
 simple was requisite for the due performance of the trusts, though 
 the limitations had been contained in a will. 
 
 However, it is very remarkable, that the decision in Curtis v. Price, 
 as far as it affects the present question, was clearly extra-judicial. 
 The Master of the Rolls himself said that the judgment he had 
 formed upon the other branch of the case, rendered it of very little 
 consequence whether his opinion on the first question was well 
 founded or not. That was a question very fit to be submitted to a 
 court of law, which he should otherwise have felt considerable reluc- 
 tance in deciding by his own opinion. (e) The case of Doe d. Brune 
 V. Martyn,(/) also arose on a deed, but in that case the estate given 
 to the trustees and their heirs was expressly confined by the terms of 
 the instrument to the infancy of the cestui que trust. 
 
 On the other hand, authorities are to be met with, which are 
 strongly opposed to the doctrine, that an estate expressly limited in 
 a deed to trustees and their heirs may be restricted by implication to 
 any smaller interest. It is laid down broadly by Mr. Butler, that 
 where there is a limitation to one for life, with remainder to trustees 
 and their heirs for preserving contingent remainders, and the estate 
 of the trustees is not restrained to the life of the tenant for life ; in a 
 
 (6) In Doe v. Hicks, 7 T. R. 437. (e) Curtis v. Price, 12 Ves. 101. 
 
 (c) 12 Ves. 100. (/) 8 B. & Cr. 497. 
 
ESTATE OE TRUSTEES OF A WILL. 355 
 
 deed the trustees would certainly be considered as taking the whole 
 fee, though it might be otherwise in a will.{gY 
 
 In Wykham v. Wykham,(A) a case subsequent to that of Curtis v. 
 Price, the question was much considered by Lord Eldon, who observed 
 that it appeared to him very difficult to maintain the point, that in a 
 deed this doctrine was to be so applied : and his Lordship accordingly 
 refused to cut down the legal effect of the grant in that case to the 
 trustees and their heirs. 
 
 So in the modern case of Colmore v. Tyndall, by a deed of settle- 
 ment, after some preceding limitations, an estate was limited to the 
 use of M. for life, with remainder to the use of a trustee and Ms 
 heirs in trust to preserve contingent remainders; remainders to ikf.'s 
 first and to her sons in tail male ; and then to 0. for life, with remain- 
 der to the same trustee and Ms heirs, to preserve, without confining 
 the estate of the trustees in either case *to the lives of M. p^n-^-. 
 and 0. ; with remainder to C.'s first and other sons in tail •- -■ 
 mail, with remainder over in fee. It will be seen that these limita- 
 tions closely resembled those in the case of Doe v. Hicks,(i) which has 
 been mentioned in the last section. However, it was held by the 
 Court of Exchequer Chamber, that the legal estate in fee simple after 
 O.'s life estate was vested in the trustee. And the decision appears 
 to have been founded mainly on the limitation being contained in a 
 deed and not in a will.[l) 
 
 If, therefore, the case of Curtis v. Price can still be considered as 
 an authority, notwithstanding the decisions and dicta by which it is 
 opposed, it is clear that the doctrine which it establishes will be con- 
 fined strictly within the limits marked out by the circumstances of 
 that case. Therefore the legal operation of a limitation in fee to 
 trustees contained in a deed will not be restrained by implication to 
 a smaller estate, unless the intention of the instrument will not only 
 not be answered, but will be defeated and contradicted by giving to 
 such a limitation its full effect. As where a subsequent estate for 
 life or years is given to the same trustees after the limitation to them 
 in fee.(9n) 
 
 (g-) Co. Litt. 290, b. Bull, note VIII. {I) Colmore v. Tindall, 2 Y. & J. 605. 
 
 {h) 18 Ves. 395,^ stated in the pre- (m) Curtis i). Price, 12 Ves. 101; Wyk- 
 
 oeding section. ham v. Wykham, 18 Ves. 422, 3 ; Col- 
 
 (i) 7 T. R. 433, stated preceding more v. Tyndall, 2 Y. & J. 605. 
 section. 
 
 ' Where a conveyance is made by deed to a trustee in fee, in trust to apply 
 the rents and profits to the sole and separate use of a, feme coverte, or to such per- 
 son as she or her trustee should appoint, and to make sale of the land as conve- 
 nient, and to apply the proceeds to repay advances, &c., and the balance to her 
 use, or to her, or as she or her trustee, to be named by her, should direct, and 
 to indemnify a third person, it was held that the legal estate continued in the 
 trustees after the death of the^me. Dinsmore v. Biggert, 9 Barr, 133v 
 
356 OF THE EXTENT AND DUKATION, ETC. 
 
 And a subsequent limitation in fee in the same deed to the same 
 trustees, will not be considered so contradictory, as to confine the 
 previous limitation to them in fee to an estate for life.(m) Nor -will 
 such a construction be adopted, because an estate in fee simple ap- 
 pointed to trustees by a deed made in execution of a power, is incon- 
 sistent with the estate limited by the instrument by which that 
 power was created. (o) 
 
 So it is quite clear, that an express limitation of an estate in fee 
 contained in a deed will not be cut down, merely because a fee in the 
 trustees is not necessary for the purposes of the instrument. In 
 Wykham v. Wykham, Lord Eldon, after remarking that the instru- 
 ment purported to be a grant in fee, and was a deed, adds, " It pur- 
 ports to be a grant in fee for purposes clearly not requiring a fee ; 
 but still it purports to be a fee ; and it is, I think, di^cult to main- 
 tain, that if a man does more by using words, which have a legal 
 effect, than is necessary to execute the purpose he professes to exe- 
 cute, the circumstance that he uses those words of larger legal effect 
 than is required, and his purpose, shall cut down the legal effect of 
 words in a deed."(^) 
 
 And so, any circumstance which is merely corroborative of an 
 intention that the trustees should take an estate orAj pur autre vie— 
 as a covenant for quiet enjoyment by the trustees during the life of 
 the tenant for life, — will not authorize the court to restrain the legal 
 operation of a limitation in fee to them.(g') 
 
 There does not appear to be any decided case in which an estate, 
 given by deed to trustees without any words of limitation, has been 
 constructively enlarged into a fee (as in the case of a devise by wilt) 
 in consequence of the nature and purposes of the trust — as from a 
 direction for them to sell or convey ; although there is a dictum of 
 Lord Hardwicke directly in favor of this construction. (r)^ 
 
 There is certainly no authority for so enlarging a partial or par- 
 ticular *estate expressly limited to them by the deed, — as where 
 
 [*252] 
 
 the gift is to the trustees, their executors, administrators and 
 
 assigns, or the estate is limited to them during a certain period, or 
 until a particular event takes place. 
 
 In such cases, for the reasons already given, the decisions upon 
 wills in favor of a constructive enlargement of the estate, cannot be 
 
 (n) Colraorei^.Tyndall, 2Y.&J.605. (g) Wykham v. Wykham, 18 Ves. 
 
 (o) Wykham v. Wykham, 18 Ves. 422. 
 
 423. (r) Villiers v. ViUiers, 2 Atk. 72. 
 (p) 18 Ves. 420, see 423. 
 
 ' See Liptrot v. Holmes, 1 Kelley, Geo. 390, where on a trust for a ferae covert, 
 there were no words of limitation to heirs, it was held the trust ended witn 
 her life. 
 
OF MERGER OF THE ESTATE OF TRUSTEES. 357 
 
 regarded as authorities. Although where the circumstances have 
 prevented the enlargement of the estate in a will, d fortiori it fol- 
 lows, that the same circumstances would have a similar effect in a 
 question arising upon a deed. 
 
 in.— OF MERGER OF THE ESTATE OF TRUSTEES. 
 
 Where the legal and equitable estates become vested in the same 
 person, the latter will be absorbed and merge in the former ; for a 
 man cannot be trustee for himself. (s)^ For this purpose, however, 
 the two estates must be co-extensive and commensurate ; or (more 
 accurately) the legal estate must be equally extensive with or more 
 extensive than the equitable estate. For the equitable fee will not 
 merge in a partial or particular legal interest.(i) 
 
 Where a partial legal interest (as an estate for life or pur autre 
 vie, or for a term of years) is vested in a person upon trusts, and 
 the legal inheritance, or any legal estate in immediate remainder of 
 equal or greater extent than the estate held in trust, is subsequently 
 acquired by the trustee, either through his own act or through the 
 operation of law, there will be a merger of the trust estate at law. 
 And the same legal consequence ensues, where a term of years or 
 other partial estate devolves upon or is transferred to a person upon 
 trust, and the legal inheritance is then previously vested in the trus- 
 tee. In such cases, however, equity will interpose, and will preserve 
 the equitable interests from destruction ; either by decreeing posses- 
 sion to the cestui que trusts during the period of the estate so 
 merged, or by directing a conveyance to revive the legal estate. (m) 
 
 Thus, where a person having a term of 1000 years, assigned it to 
 the owner of the inheritance, in trust for his wife and children, and 
 
 (s) Wade v. Paget, 1 Bro. C. C. 364. Thorn v. Newman, id. 603 ; Saunders v. 
 
 (J.) Phillips V. Brydges, 3 Ves. 126. Bournford, Finch, 424; 1 Cruis. Dig. 
 
 [Donaldsu. Plum, 8 Conn. 453; butsee Tit. 8, ch. 2, s. 47, 50; 6 id. tit. 39, s. 
 
 James w. Morey, 2 Cow. 284.] 72, 113, 4. 
 
 (m) Nurse v. Yerworth, 3 Sw. 608 ; 
 
 ' Cooper V. Cooper, 1 Halst. Ch. 9 ; Lewis v. Starke, 10 Sm. & M. 128 ; Brown 
 V. Bartee, 10 Sm. & M. 268 ; Mason v. Mason, 2 Sandf. Ch. 433 ; James i;. Morey, 
 2 Cow. 246 ; James v. Johnson, 6 J. C. R. 417. Merger is not favored in equity, 
 James v. Morey, 2 Cow. 246; Donalds v. Plumb, 8 Conn. 453; Mechanics' Bank 
 V. Edwards, 1 Barb. S. C. 272; and therefore never allowed against the intention 
 of the parties. Ibid., Gardner v. Astor, 3 J. C. R. 53; Starr v. Ellis, 6 Id. 393; 
 Denn v. Van Ness, 5 Halst. (N.'J.) 102. It will not be permitted to affect interme- 
 diate liens. Lewis v. Starke, 10 Sm. & M. 128. In Elliott v. Armstrong, 2 Blackf. 
 208, it was held, that where a cestui que trust (by resulting trust) purchased the 
 legal estate under an execution on a judgment by him against the trustee, there 
 was no merger, for the execution was void. 
 
358 OF THE PRESUMPTION OP A 
 
 the beneficial interest in the term was afterwards assigned to the 
 plaintiff, Lord Nottingham decreed that the plaintiff should hold the 
 premises notwithstanding the legal merger, and that the heir-at-law 
 of the creator of the term should make a further assurance to him for 
 the residue of the term. (a;) 
 
 So, in another case, a trustee of a term married a woman who had 
 an estate of freehold in the same land; and Lord Nottingham held 
 that, whatever the law might be, there ought to be no merger in 
 e(]uitj.{if) And in Nurse v. Yerworth,(z) where a devisee in trust of 
 a beneficial term of years afterwards became entitled to the remain- 
 der in fee, the same learned judge decided, that the term was not 
 merged in equity, *and decreed an assignment of it to a 
 •- -' person claiming under a devise from the cestui que trugt.[z) 
 
 IV.— OF THE PRESUMPTION OP THE KECONVEYANCE, OR SURRENDER, 
 OF THE LEGAL ESTATE BY A TRUSTEE. 
 
 In some cases, where the legal interest has been clearly vested in 
 trustees, either in fee simple,(a) or for a term of years, which has 
 not determined by effluxion of time,(5) it will be presumed that that 
 interest has been reconveyed or reassigned by the trustee to the 
 party beneficially entitled. And this presumption will be made 
 equally in the case of a deed or will.^ 
 
 (x) Saundersv.Bournford, Finch, 424. 2 S. & St. 154 ; Noel v. Bewley, 3 Sim. 
 
 ly) Thorn v. Newman, 3 Sw. 603, and 103. 
 
 see 618; see Mole v. Smith, Jac. 490. (6) Lade v. Holford, Bull. N. P. 110; 
 
 (z) Nurse v. Yerworth, 3 Sw. 608. Doe v. Syborn, 7 T. R. 2; Goodlillei). 
 
 • (a) England v. Slade, 4 T. R. 682; Jones, 7 T. R. 47; Emery d. Grocock, 
 
 Wilson U.Allen, IJ. & W. 611; Hillary 6 Mad. 54; Doe v. Hilder, 2 B. & Aid. 
 
 I). Waller, 12Ves. 239; Cooke t). Soltah, 782; Townshend.ti. Champemown, lY. 
 
 & J. 538. 
 
 ' See Matthews v. Ward, 10 Gill & J. 443 ; Jackson v. Pierce, 2 John. 226 ; Sin- 
 clair V. Jackson, 8 Cowen, 543. After the lapse of thirty-two years, a release to 
 the cestui que trust will be presumed against the heirs-at-law of a trustee, Moore 
 V. Jackson, ex dera. Erwin, 4 Wend. 19. -In the Dutch Ch. v. Mott, 7 Paige, 
 77, it was held that where real estate was conveyed to trustees in trust for a 
 church or congregation, as a place of worship, which church or congregation 
 was afterwards incorporated, the court might, after a great lapse of time (142 
 years), presume a conveyance. Where several persons, being possessed of 
 an undivided tract of land in 1765, made partition, and conveyed the entire 
 tract to A. in trust, to convey to each of the grantees his proportion in severalty, 
 and the land had been since generally held according to that partition, it was 
 held in an ejectment brought in 1807, by persons claiming under the original 
 grantor, that the conveyances might be presumed to have been duly made. Jack- 
 son V. Moore, 13 John. R. 513. But in Flouray oj. Johnson, 7 B. Monr. 694, it 
 was ruled that trustees who had the power to relinquish the entire estate m 
 property (slaves) to the cestui que trust at their discretion, were not to be presumed 
 
RECONVEYANCE OR SURRENDER. 359 
 
 In Hillary v. "Waller, Sir Wm. Grant, M. R., said that " presump- 
 tions do not always proceed on a belief that the thing presumed has 
 actually taken place. Grants are frequently presumed merely for 
 the purpose and from a principle of quieting the possession. There 
 is as much occasion for presuming conveyances of legal estates, as 
 otherwise titles must for ever remain imperfect, and in many respects 
 unavailable ; when from length of time it has become impossible to 
 discover in whom the legal estate (if outstanding) is actually vested. "(e) 
 
 However, in general, as between trustee and cestui que trust, mere 
 length of time will not be sufficient of itself to raise or support this 
 presumption : for the possession of the cestui que trust is usually 
 consistent with the title of the trustee, and undisturbed enjoyment 
 for any period however long does not show whether the title be legal 
 or equitable.((£) 
 
 The nature and extent of this doctrine of presumption, as laid 
 down by Lord Mansfield in Lade v. Holford,(e) were afterwards thus 
 recognised and explained by Lord Kenyon, in the case of Doe v. Sy- 
 bourn.(/) " In all cases," said that learned judge, " where trustees 
 ought to convey to the beneficial owner, he would leave it to the jury 
 
 (c) Hillary v. Waller, 12 Ves. 252. V. & P. 350, 470 to 510, 9th edit. [See 
 
 (d) Keene v. Deardon, 8 East, 263 ; Doe v. Langdon, 12 Q. B. 719.] 
 Hillary ». Waller, 12 Ves. 251; Good- (e) Bull. N. P. 110. 
 
 son V. Ellison, 3 Russ. 588; 1 Sugd. (/) 7 T. R. 2. 
 
 to have done so from the fact that they had permitted it to remain in the posses- 
 sion of the latter, who had paid taxes and sold one slave, but without their 
 knowledge. See Mr. Greenleaf's Ed. of Cruise, vol. 1, page 412. 
 
 The doctrine of the implied surrenderof trust terms is of little importance in Penn- 
 sylvania, and those States where an equitable title may be recovered on in eject- 
 ment. The Court of Queen's Bench, in a recent case (Doe d. Jacobs u. Phillips, 10 
 A. & E. (N. S.) 130), held that the statute of limitations of 2 & 3 William IV. was 
 applicable as between cestui que trust and trustee, and, therefore, that where the 
 trustee had never been in possession during the period fixed by the statute, the latter 
 barred his right, so that a trust term could not be setup under such circumstances. 
 This case appears to have been met with considerable disapprobation by the 
 profession, and subsequently the same point arose in Garrard v. Tuck, 8 M. G. & 
 S. 238, when the Court of Common Pleas, dissenting from the decision in Doe 
 d. Jacobs V. Phillips, held that the statute did not apply. The intricate learning 
 of attendant terms has become pretty much obsolete in England since the statute 
 of 8 & 9 Vict. o. 112, which declares (U) that on the 31st Dec, 1845, all satis- 
 fied terms for years attendant on the inheritance, &c., either by express declara- 
 tion, or construction of law, are to cease and determine, except those by express 
 declaration, which though made to cease and determine thereby, are to continue 
 to afford the same protection against incumbrances, &o., as if subsisting ; and ( § 2), 
 satisfied terms subsisting or thereafter to be created, attendant on inheritance, &c., 
 as above, shall immediately on their becoming attendant, cease and determine. 
 In Virginia, by the Revised Code (Ed. 1849, p. 560), where purposes of trust 
 are accomplished, and cestui que trust would be entitled to a decree for reconvey- 
 ance, trustee cannot recover at law. 
 
360 OF THE PRESUMPTION OF A 
 
 to presume, where such a conveyance might reasonably be made, that 
 they had conveyed accordingly, in order to prevent a just title from 
 being defeated by a matter of form."(^) 
 
 Hence it appears, that in every case, three circumstances are requi- 
 site in order to raise the presumption of a reconveyance by a trus- 
 tee. 1st, It must have been the duty of the trustee to convey ; 2d, 
 There must be sufficient reason for the presumption, and 3d, The 
 object of the presumption must be the support of a just title. 
 
 And 1st. It must be the duty of the trustee to reconvey.' 
 
 Where a cestui que trust becomes absolutely entitled to the whole 
 beneficial interest in the trust estate, it is clearly the duty of the 
 trustee, when *so required by the beneficial owner,(A) to 
 L -I convey the legal estate to him, or according to his direction. (i) 
 And, therefore, where the beneficial owner has for a long period con- 
 tinued to deal with the property, as if he were possessed of the legal 
 fee, it will be presumed that this requisition has been made, and the 
 consequent conveyance executed. Thus a mortgage in fee simple 
 was made in the year 1712 to a person, as a mere dry trustee for the 
 real mortgagee, and the cestui que trust in the following year took 
 a conveyance of the equity of redemption to himself in fee, and sub- 
 sequently dealt with the estate, as if the legal fee were vested in 
 him ; and no further notice was ever taken of the legal estate con- 
 veyed to the trustee by the deed of 1712. The reconveyance of the 
 legal fee was presumed on a bill being filed in 1822. (A) 
 
 And where there is an express direction or provision in the trust 
 instrument for a conveyance of the legal estate by the trustee at a 
 certain specified period, the duty of the trustee to make such a con- 
 veyance becomes yet more cogent, and the presumption of its having 
 been made will consequently more readily arise.(?) 
 
 Thus in England v. Slade, there was a devise of real estate to the 
 use of trustees, in trust for the testator's son, and to convey the same 
 to Mm immediately on his attaining twenty-one. The son reached 
 twenty-one in September, 1788, and in October in the following year, 
 
 (g-) Doe V. Sybourn, 7 T. E. 3 ; see 134; Goodson ■?;. Ellison, 3 Russ. 583; 
 
 Goodtitle v. Jones, id. 49 ; Doe v. Read, England v. Slade, 4 T. R. 682 ; Angier 
 
 8 T. R. 118 ; 1 Sugd. V. & P. 470, 9tli v. Stannard, 3 M. & K. 571. 
 edit. (4) Noel v. Bewley, 3 Sim. 103. 
 
 Qi) Langley i;. Sneyd, 1 S. & St. 45, Q) Hillary v. Waller, 12 Yes. 239, 
 
 55. [See post, 278, &c.] 252; England v. Slade, 4 T. R. 682; 
 
 (i) Carteret v. Carteret, 2 P. Wms. Wilson «. Allen, 1 J.& W. 611, 620. 
 
 ' A jury will not be instructed to presume a reconveyance where the trustee 
 would not be authorized to convey, or it was intended that the legal estate should 
 remain outstanding. Black v. Black, 14 Verm, 28. 
 
RECONVEYANCE OR SURRENDER. 361 
 
 granted a lease of the property for 88 years. There was no proof 
 of any conveyance from the trustees, but on an ejectment brought in 
 the year 1792 by the lessee, claiming under the lease of October, 
 1789, Lord Kenyon, with the concurrence of the other Judges of 
 the Court of K. B., held, that the conveyance was to be presumed. 
 His Lordship said, " There is no reason why the jury should not 
 have presumed a conveyance from the trustees to him (the son) upon 
 his attaining the age of twenty-one, in pursuance of their trust. It 
 was what they were hound to do, and what a court of equity would 
 have compelled them to have done, if they had refused. But it is 
 rather to he presumed that they did their duty. And as to the time, 
 the jury may be directed to presume a surrender or conveyance in 
 much less time than twenty years. "(m) 
 
 In another case a copyhold, in the year 1746, was devised to two 
 trustees in fee, upon trust to pay debts, &c., as well as two annuities 
 and a legacy, and then to convey and surrender the premises to Tho- 
 mas Allen, Ms heirs and assigns. The trustees were admitted in 
 1747. There was no entry on the rolls of a surrender by them, but 
 in 1771 Thomas Allen the devisee was admitted, and in the same 
 year devised the estate to other trustees to sell. The sale took place 
 in 1772, and the deed contained a recital that the debts and lega- 
 cies of the original testator had been paid, and that the annuities 
 had ceased. Sir Thomas Plumer, M. R., held that as it was the 
 duty of the trustees to convey on the accomplishment of the primary 
 purposes of their trust, the court under the circumstances ought to 
 presume a surrender to have been made.(ji) 
 
 *And even where the direction for a conveyance by the |-j,grrT 
 trustees applies to part only of the trust estate, the court will '- ^ 
 notwithstanding presume a conveyance of the whole, if the general 
 circumstances of the case warrant the presumption. (o) 
 
 So where the estate has been originally conveyed to the trustee 
 for some particular purpose or trust — as by way of indemnity ;{p) or 
 to secure the payment of a mortgage debt ;{q) or to raise and pay an 
 annuity or a sum of money for a portion or other purpose ;(>•) as soon 
 as the particular purpose has been satisfied, it becomes the duty of 
 the trustee to dispose of the legal estate, when required to do so by 
 the cestui que trust, exactly as if he had been from the first a mere 
 
 (m) England v. Slade, 4 T. R. 682; v. Soltau, 2 S. & S. 154; Ex parte Rol- 
 and see Doe v. Sybourn, 7 T. R. 2. man, 1 Sugd. V. & P. 509, 9th edit.; 
 (n)Wilsonu.Allen, 1J.&W.611, 13. Doe •!;. Hilder, 2 B. & Aid. 782. 
 (o) Hillary t). Waller, 12 Ves. 239, 252. (r) Emery v. Grocock, 6 Mad. 54; 
 (p) Hillary D.Waller, 12Ves. 239,254. Doe v. Wright, 2 B. & Aid. 710; Wil- 
 (o) Doe V. Sybourn, 7 T. R. 2; Cooke son v. Allen, IJ. & W. 611, 619. 
 
362 OF THE PRESUMPTION OF A 
 
 dry trustee; and it is immaterial whether the estate vested in the 
 trustee be one in fee simple,(s) or for a term of years. (t) 
 
 And where from the lapse of time, joined with other circumstances, 
 there is a moral certainty that the original purpose for which the 
 estate was limited to the trustees must have been long since satisfied, 
 the court will act upon that certainty, and presume that satisfaction, 
 as well as the requisition to convey and the consequent reconvey- 
 ance, although there maybe no direct proof of these facts, (m) Thus, 
 in a case where a term had been created in the year 1711 for raising 
 portions, of the satisfaction of which there was no direct evidence; 
 but in 1744 a settlement had been made, and a recovery suffered, 
 and there was a covenant that the estate was free from incum- 
 brances ; and the term did not appear to have been dealt with at any 
 time, and the parties entitled to the portions had attained 21, and 
 died 60 years before ; the Vice-Chancellor (Sir J. Leach) held, that 
 both the satisfaction of the portions, and the surrender of the term 
 for securing them, must be presumed, (a;) 
 
 However, where an estate is vested in trustees upon trusts which 
 are expressly declared, it is their duty to retain possession of the 
 legal estate until those trusts are fully performed: and consequently 
 as long as any of the trusts are subsisting, the law will never presume 
 a conveyance by the trustees ; for such a presumption could only be 
 founded on the supposition of a direct breach of trust, which is never 
 presumed. (y) 
 
 For this reason it would seem to follow, that where a term of years 
 has been assigned to a trustee expressly to attend the inheritance, itg 
 surrender ought never to be presumed, from mere negative circum- 
 stances, such as lapse of time, or the continued omission to deal with 
 it, or to notice its existence; for Sir Edward Sugden observes, "In 
 this case the trustees ought not to surrender the term ; to do so would 
 be to commit a breach of trust. "(2) 
 
 However, it was held on two occasions by the Court of K. B.' that 
 |.^- a *surrender of a term might be presumed, although it had 
 L J been expressly assigned to attend the inheritance :(«) and 
 those decisions were followed in a subsequent case in the Court of 
 Exchequer .(6) 
 
 (s) Cooke V. Soltau, 2 S. & S. 154; (j/) Keene v. Deardon, 8 East, 248, 
 
 Hillary v. Waller, 12 Ves. 239, 252. 264; Doe v. Staple. 2 T. R. 684. 
 
 (J.) Doe V. Sybourn, 7 T. R. 2; Doe v. (z) 1 Sugd. V. &'p. 487, 9th ed., and 
 
 Wright, 2 B. & Aid. 710; Ex parte Hoi- see p. 472. 
 
 man, 1 Sugd. V.' & P. 509, 9th ed.; (a) Doe v. Wright, 2 B. & Aid. 710; 
 
 Bartlett v. Dowries, 3 B. & Cr. 616. Doe v. Hilder, id. 782; see Bartlettv. 
 
 («) 12 Ves. 252. Downes, 3 B. & Cr. 616. 
 
 (a;) Emery v. Grooook, ubi supra; (6) Townshend v. Champernown, 1 
 
 and see Hillary v. Waller, 12 Ves. 252. Y. & J. 538. 
 
RECONVEYANCE OR SURRENDER. 363 
 
 There will be occasion presently to consider this point somewhat 
 more at large : but it is to be observed that the doctrine of Doe v. 
 Hilder has been much questioned, and the propriety of the decision 
 in that case denied by Lord Eldon,(c) as well as by Richards, 
 L. C. B.{d) Sir B. Sugden, also, in his Treatise on Vendors and 
 Purchasers, has entered minutely into the discussion of the question, 
 and has exposed with his usual ability and success, the unsoundness 
 of the doctrine of that case.(e) The case of Townshend v. Ohamper- 
 nown appears to be the only one in which the authority of Doe v. 
 Hilder has been judicially recognised, and in practice it does not 
 seem to have been acted on. Accordingly, Sir E. Sugden, after a 
 careful review of all the authorities, has stated himself to be justified 
 in considering the law to stand as it did before the decision in Doe v. 
 Hilder.(/) 
 
 2d. There must be sufficient reason for presuming a conveyance 
 by a trustee.' 
 
 The execution of a conveyance by a trustee will not be presumed 
 merely because such an act is sanctioned, or even peremptorily re- 
 quired by the trust. But circumstances must also exist, from which 
 the execution of the conveyance may reasonably be supposed to have 
 taken place. 
 
 Length of time is an important circumstance whereon to found this 
 presumption, although it has been already mentioned that continued 
 possession by the cestui que trust, without dealing with or noticing 
 the estate vested in the trustee (however long the period), will not in 
 general be a*sufficient reason of itself for presuming a conveyance by 
 the trustee, inasmuch as such a possession is not inconsistent with 
 the trustee's title. (^) 
 
 However, very slight additional circumstances, when coupled with 
 great length of time, have been held sufficient to support the pjre- 
 sumption. Therefore, where a conveyance of an estate in fee simple 
 was originally made to a trustee for a particular purpose, viz., as a" 
 security against a defect of title, — which was intended to last only 
 
 (c) Aspinall v. Kempson, 1 Sugd. V. [Doe v. Langdon, 12 Q. B. 719 ; Garrard 
 & P. 508. V. Tuck, 8 C. B. 248.] 
 
 (d) Doe V. Putland, 1 Sugd. V. &P. (g) Ante, p. 253; Keene v. Deardon, 
 502, 4; Deardon^. Lord Byron, id. 506. 8 East, 363; Hillary v. Waller, 12 Ves. 
 
 (e) Vide post, 260. 250 ; Goodson v. Ellison, 3 Russ. 588. 
 (/) 1 Sugd. V. & P. 470 to 510; and [Doe v. Langdon, 12 Q. B. 719.] 
 
 see Doe v. Plowman, 3 B. & Ad. 573. 
 
 ' '-The current of later authorities shows that where a term has been assigned 
 to attend the inheritance, a surrender ought not to be presumed, unless there has 
 been a dealing with the estate in a way in which reasonable men and men of 
 business would not have dealt with it, unless the term had been put an end to." 
 Wilde, C. J., in Garrard v. Tuck, 8 C. B. 248. 
 
364 OF THE PRESUMPTION OF A 
 
 eleven years, Sir Wm. Grant, M. R., held that a reconveyance 
 might be presumed after the lapse of 140 years, without any notice 
 of the estate being outstanding, on the general principle of law ; and 
 even for the purpose of compelling a purchaser to accept the title ; 
 and the decision was affirmed on appeal by Lord Erskine.(A) 
 
 Indeed where the legal estate in fee simple has been vested in 
 trustees for a particular purpose, which has been long since satisfied, 
 or which from the length of time must be presumed to have been 
 satisfied, there seems to be reason for contending as a general 
 rule, that a reconveyance *might be presumed soleli/ from 
 L -■ the lapse of time ;(i) for in this case no advantage can result 
 to the beneficial owner from the legal estate remaining vested in the 
 trustee, as is the case where the outstanding estate consists of a satis- 
 fied term of years ; moreover, upon the satisfaction of the purpose 
 for which the estate was created, it becomes the trustee's duty to 
 execute a reconveyance. And this reasoning operates yet more 
 powerfully in cases where there is an express and positive direction 
 to the trustees to reconvey upon the satisfaction of the trusts :(A) for 
 then their retaining the legal estate after the specified period almost 
 amounts to a continuing breach of trust. 
 
 However, this argument does not apply to cases where the legal 
 fee is vested in a person as a mere dry trustee, and as a convenient 
 mode of effecting the conveyance ; and where there is no particular 
 purpose to be answered, which requires the separation of the legal 
 and equitable estates. And in such a case the court has refused to 
 presume a reconveyance by the trustee solely on account of the lapse 
 of time, even after an interval of 120 years, where there have been 
 no mesne transactions or other circumstances to assist the presump- 
 tion. (?) 
 
 And where a term of years is vested in a trustee for a particular 
 purpose, upon the satisfaction of that purpose it will in general 
 become attendant upon the inheritance by the construction of law, 
 whether the instrument by which it is created' does or does not so 
 direct ; and therefore, although no notice be taken of the existence 
 of the term for a period, however long in its duration, the surrender 
 of the term cannot be presumed from the lapse of time alone, unac- 
 companied by other corroborative circumstances. (m) 
 
 {h) Hillary v. Waller, 12 Ves. 239. {I) GoodrightD.Swymmer, iKenyon, 
 
 (i) See Cooke v. Soltau, 2 S. & S. 385; and see Goodson v. Ellison, 3 
 
 154 ; Noel v. Bewley, 3 Sim. 103 : Hil- Russ. 583, 8 ; sed vide, Doe v. Lloyd, 
 
 lary v. Waller, 12 Ves. 252, 270. cited in Matthews on Presumption, 215; 
 
 [k) Wilson V. Men, 1 J. & W. 611 ; see Langley v. Sneyd, 1 S. & St. 45. 
 
 see England v. Slade, 4 T. R. 682 ; Hil- (m) Cholmondeley i;. Clinton, 1 Sugd. 
 
 lary v. Waller, 12 Ves. 239; Doe v. Sy- V. & P. 506, 7, 9th ed. 
 
 bourn, 7 T. R. 2. 
 
BBCONVETANCB OR SURRENDER. 365 
 
 But any circumstances tending to show that the equitable owner 
 has acted or dealt with the property as if the legal estate were vested 
 in him, will be material as evidence, when joined with length of time, 
 to raise the presumption of a conveyance by the trustee. Therefore, 
 if the deeds, by which the legal estate was originally vested in the 
 trustee, are in the possession of the beneficial owner, and not of the 
 trustee or his representatives ;(«) or if the beneficial owner grant or 
 confirm leases of the property for long terms of years, in such a way 
 that they could only take efi"ect out of the legal estate ;(o) or if his 
 title to, and possession of, the legal fee, be stated by him in a recital 
 "in a deed •,{p) or if he suffer a recovery, and make a settlement, which 
 can only operate on the supposition that the legal estate was not out- 
 standing in the trustee •,{q) or if he make a conveyance of the pro- 
 perty, and the conveyance deed contain a covenant for quiet enjoy- 
 ment, free from incumbrances ;(r) all these ^circumstances, p^ncj,-, 
 when joined with considerable lapse of time, have been held L -' 
 sufficient to support the presumption in question. 
 
 And so, if on mesne dispositions of the estate, the title has been 
 examined and accepted by conveyancers ;(s) or in the case of a 
 copyhold, if the equitable owner have been admitted and accepted by 
 the lord as the legal tenant,(i) a similar result will follow. 
 
 In these cases it is impossible to lay down any general rule as to 
 the number of years, or the precise circumstances, which will or will 
 not be considered sufficient to support the presumption. This is a 
 conclusion to be drawn from the general consideration of the circum- 
 stances, which must necessarily vary in every individual case ; and 
 the decision in one case can rarely be considered as an authority in 
 any other. 
 
 It has been already seen, that where there is an express direction 
 for the trustee to convey to a particular person at a certain time, the 
 presumption that the trustee has performed his duty by executing 
 the conveyance, will be more readily raised than if there were no 
 such direction. Therefore, if the person who is entitled to require 
 the conveyance, have done any act which assumes that the legal 
 estate is vested in him, — the court will presume the execution of the 
 reconveyance by the trustees after a very short interval of time, even 
 though it be less than 20 years. 
 
 Thus in England v. Slade, a testator in December, 1777, devised 
 lands to trustees, in trust to convey to his son immediately on Ms 
 
 (n) Hillary v. Waller, 12 Ves. 239; (r) Emery v. Grocock, ubi supra. 
 
 Cooke V. Soltau, 2 S. & St. 154; Tenny (s) Stafford v. Llewellyn, Skinn. 77; 
 
 V. Jones, 10 Bing. 75. Doe v. Hilder, 2 B. & Aid. 782; Emery 
 
 (o) Noel V. Bewley, 3 Sim. 103 ; Eng- v. Grocock, 6 Mad. 55 ; Ex parte Hol- 
 land V. Slade, 4 T. R. 682. man, 1 Sugd. V. & P. 509. 
 
 ip) Noel V. Bewley, 3 Sim. 114, 115. (<) Wilson v. Allen, 1 J. & W. 611. 
 
 (9) Emery v. Grocock, 6 Mad. 54. 
 
366 OP THE PRESUMPTION OF A 
 
 attaining 21. The son attained that age in 1788. No conveyance 
 by the trustees was proved, but in 1789 the son granted a lease of 
 the property for 88 years. And on an ejectment, brought by the 
 lessee in 1792, it was held by Lord Kenyon, with the concurrence 
 of the other judges of the Court of King's Bench,- that the plaintiff 
 took the legal estate under that lease, " and as to the time, a jury 
 might be directed to presume a surrender or conveyance in much lem 
 time than twenty years. (u) 
 
 Where the estate outstanding in a trustee consists of an old satis- 
 fied term of years, it is doubtful whether the continued omission to 
 deal with or notice it on conveyances of the inheritance, will or will 
 not of itself be a sufficient reason for presuming its surrender. 
 
 This doubt exists equally, whether the term by the termination of 
 the trust has become attendant through the operation of law, or 
 whether it has been expressly assigned to a trustee to attend the in- 
 heritance. The language of Lord Eldon in the House of Lords, on 
 the appeal in Cholmondeley v. Clinton, (a;) treats the question of pre- 
 suming the surrender of a term as on precisely the same footing in 
 either case. (a;) However, where there has once been an express di- 
 rection, that a term shall be held in trust to attend the inheritance, 
 there certainly appears to be ground for contending strongly in 
 argument, that mere negative circumstances shall not have the effect 
 of raising the presumption of a surrender in direct contradiction to 
 such an express trust, whatever might be their effect, where the trust 
 to attend is created only by the implication or construction of law. 
 P^- *Sir Edward Sugden, in his work on Vendors and Purchasers, 
 ■- -I has entered minutely into the consideration of this subject, 
 and has entirely exhausted the learning connected with it; and that 
 learned writer supports, with his usual ability and force, the position 
 that an express assignment to attend the inheritance will prevent the 
 presumption" of its surrender. In such a case he observes, "it were 
 clearly too much to presume a surrender of a term, which the owner 
 has so anxiously kept distinct from the inheritance. "(^) 
 
 In Doe V. Staple,(s) Lord Kenyon, C. J., said that he extremely 
 approved of what was said by Lord Mansfield in Lade v. Holford, 
 that he would not suffer a plaintiff in ejectment to be nonsuited by a 
 term standing out in his own trustee, or a satisfied term set up by a 
 mortgagor against a mortgagee, but would direct a jury to presume a 
 surrender.(z) . However, this and other similar dicta (although doubtless 
 
 (u) England v. Slade, 4 T. R. 682; (z) Doe v. Staple, 2 T. R. 696; and 
 
 and see Doe v. Sybourn, 7 T. R. 2. see Doe v. Sybourn, 7 T. R. 2 : Goodtitle 
 
 {x) Cholmondeley v. Clinton, 1 Sugd. v. Jones, 7 T. R. 47 ; Doe v. Read, 8 T. 
 
 V. &P. 506,7, 9th edit. R. 118. 
 
 (j) 1 Sugd. V. & P. 470, 9th ed.; and 
 see p. 472. 
 
RECONVEYANCE OR SURRENDER. 367 
 
 favorable to the presumption of a surrender), cannot be considered to 
 have established judicially a doctrine of so much importance. 
 
 The first decided case, in -which the presumption of the surrender 
 of an attendant term was made in the absence of any positive corro- 
 borative evidence to support it, was that of Doe d. Biirdett v. 
 Wright.(a) There a term was assigned in 1735 to raise an an- 
 nuity, which ceased in 1741, and then to attend the inheritance. 
 There had been no sale or other transaction, in which the term could 
 have been dealt with, except a sale in 1801 of a small part of the 
 estate for redeeming the land tax, whereupon the seller covenanted 
 with the purchaser to produce the deeds creating and assigning the 
 term. The surrender of the term was presumed by the Court of 
 King's Bench in 1819. It is to be observed, however, that in this 
 case the question was raised between two persons, each of whom 
 claimed the property by descent. (a) 
 
 This case was followed in the same term by that of Doe v. Hilder,(6) 
 where a term, which had been assigned to attend the inheritance in 
 1779, was presumed by the same court to have been surrendered in 
 1819. And this presumption was made on behalf of a judgment 
 creditor against a purchaser, although the only circumstance in favor 
 of it was the omission to assign or take any notice of the term in a 
 settlement made on the marriage of the owner of the estate in 1814, 
 and again in a conveyance on the sale of his life estate in 1816.(J) 
 In the case of Ex parte Holman,(c) a term of 500 years was created in 
 1735, and was noticed in an intermediate deed dated in July, 1749. 
 There had been three conveyances of the fee upon sales in 1784, 
 in 1791, and 1792; but no notice had been taken of the term in 
 those conveyances or on any other occasion. It was held by Sir 
 John Leach, in 1820, that a surrender of the term must be presumed, 
 and that an assignment of it was not necessary to perfect the title of 
 a purchaser.(c) 
 
 In Bartlett v. Downes, a satisfied term had been set up by a devi- 
 see of the grantor to defeat a grant of the stewardship of a manor to 
 a person *for life. The term had been created in 1712, r-^^r-r.-, 
 and had been assigned to attend in 1786 ; and in 1793 there l '^ -I 
 was a general declaration as to all outstanding terms. The Court of 
 King's Bench held, that the surrender of this term was properly pre- 
 sumed in favor of the grantee in 1825.(c?) 
 
 The case of Townsend v. Champernown,(e) in the Exchequer, car- 
 ried this doctrine to a still greater extent. In a deed made in the 
 
 (a) Doe V. Wright, 2 B. & Aid. 710. (d) Bartlett v. Downes, 3 B. & Cr. 
 
 (6) Doe V. Hilder, 2 B. & Aid. 782. 616. 
 
 (c) Ex parte Holman, 1 Sugd. V. & (e) Townsend u. Champernown, 1 Y. 
 
 P. 509, 9th ed. & J. 538. 
 
368 OF THE PRESUMPTION OF A 
 
 year 1758, a term of 1000 years had been recited to have been as- 
 signed to attend. The Master reported in favor of the title of a 
 vendor, on the ground that the surrender of this term must be pre- 
 sumed after an interval of 70 years ; and Alexander, L. C. B., on 
 overruling an exception to this report, observed, " until a different 
 decision be pronounced I shall, on the authority of Doe v. Hilder, 
 after the expiration of 70 years — without payment of interest — pre- 
 sume the term to be surrendered. "(e) It is difficult to comprehend the 
 meaning of the Lord Chief Baron's observation as to the non-pay- 
 ment of interest ; but the effect of the decision, if supported, is, that a 
 term expressly assigned to attend, if not dealt with or noticed for 70 
 years, must be presumed to have been surrendered, even to the extent 
 of compelling a purchaser to accept the title without an assignment 
 of the term. 
 
 But on the other hand, there are several dicta and decisions by 
 which the foundation of the doctrine of Doe v. Hilder and the cases 
 following it has been very much shaken, if not expressly overturned. 
 
 The decision of Doe v. Hilder was strongly disapproved of by Rich- 
 ards, L. C. B., and the other barons of the Court of Exchequer, when 
 the circumstances of that case were subsequently brought before them 
 on another ejectment.(/) Lord Eldon on several occasions ques- 
 tioned the soundness of the same decision in the most pointed 
 terms ;(^) and finally, in Aspinall v. Kempson, upon the case of Doe v. 
 Hilder being cited, his Lordship observed, that having paid conside- 
 rable attention to that case, he had no hesitation in declaring that he 
 would not have directed a jury to presume a surrender of the term 
 in that case, and for the safety of titles, he thought it right to declare 
 that he did not concur in the doctrine laid down in that case.(/i) 
 
 Again, Sir Edward Sugden, after an elaborate investigation of the 
 law on this subject, as founded both on principle and authority, has 
 laid it down, that a term of years assigned to attend the inheritance, 
 ought not to be presumed to be surrendered, unless there has been 
 an enjoyment inconsistent with the existence of the term, or some act 
 done in order to disavow the tenure under the termor, and to bar it 
 as a continuing interest, (j) 
 
 In this state of the authorities it was impossible to maintain, in its 
 
 full extent, the principle of Doe v. Wright and Doe v. Hilder, much 
 
 less that of Townsend v. Champernown ; and it may be confidently 
 
 stated, that at *the present day the mere omission to notice 
 
 L J the existence of an outstanding term will be held a sufficient 
 
 (e) Townsend v. Champernown, 1 Y. 1 Sugd. V. & P. 505; Hayes v. Bay- 
 
 & J. 538. ley, id. 506 ; Cholmondeley v. Clinton, 
 
 (/) Doe V. Putland, 1 Sugd. V. & P. id. 506, 7. 
 
 502 ; and see Deardon v. Lord Byron, (/s) Aspinall v. Kempson, 1 Sugd. V. 
 
 cited id. 506. & P. 508. 
 
 {g) Townsend u. Bishop of Norwich, (t) 1 Sugd. V. &. P. 472, 9th ed. 
 
KECONVETANOB OR SURRENDER. 369 
 
 reason for presuming its surrender only where there have been inter- 
 mediate sales or other transactions, in which it is necessary or usual 
 to deal with or notice all existing terms. The decided cases, and to 
 a certain extent the principles on which the doctrine of presumption 
 proceeds, seem to support its application to that extent, (i) 
 
 But this foundation for the presumption wholly fails, where no 
 intermediate transactions have taken place affecting the property, 
 except those in which it is neither requisite nor customary to notice 
 any existing terms, as in the case in marriage settlements or devises 
 by will. -In such cases, therefore, it has been decided that the mere 
 omission to notice a term is no reason for presuming its surrender as 
 between a^urchaser of the inheritance and a person claiming under 
 a. prior title ; or on a question of title between a vendor and pur- 
 chaser.(Z) And the same reasoning applies, d fortiori, to cases where 
 the estate has not been dealt with or disposed of at all since the 
 assignment of the term.(m) 
 
 However, the presumption of the surrender, even where there have 
 been intermediate sales without any notice of the term, is opposed to 
 the authority both of Lord El don and Sir Edward Sugden, who have 
 both strongly denied the necessity of taking an assignment of a term, 
 which has been once assigned to attend, even upon a purchase of the 
 inheritance, (w) 
 
 The same rules do not apply where the term is made use of by the 
 trustee himself, to defeat or oppose the title of the cestui que trust. 
 For in such a case a court of law, in order to prevent the gross in- 
 justice attending the enforcing of such a claim, will take advantage 
 of any circumstances, however inconclusive, in order to presume the 
 surrender of the term.(o) 
 
 And the same principle has been acted upon in a contest between 
 two persons, who each claimed an estate as the heir-at-law of a 
 former owner, lest the consideration of the merits of the case should 
 be prevented or delayed by a purely technical objection.(p) How- 
 ever, the application of the doctrine even to this extent has been 
 much questioned, and the case in which the court arrived at that 
 decision must be regarded at best as but of very doubtful authority. (j) 
 
 Qc) Doe V. Hilder, 2 B. & Aid. 782; other case cited, Ibid.; Hayes i;. Bailey, 
 
 Emer^ v. Grocock, 6 Mad. 54 ; Ex parte id. 506 ; Cholmondeley v. Clinton, id. 
 
 Holman, 1 Sugd. V. & P. 509; Doe v. 507; 1 Sugd.V.&P. 477 to 482; Maun- 
 
 Plowman, 2 B. & Ad. 573. [Doe v. drell v. Maundrell, 10 Ves. 246. 
 
 Langdon; 12 Q. B. 719 ; Garrard v. Tuck, (o) Lade'W.Holford, BuU.N. P. 1 lOjDoe 
 
 8 C. B. 247.] v. Staple, 2 T. R. 696; Doe v. Sybourn, 7 
 
 (/) Doe 1J. Plowman, 2 B.& Ad. 573; T.R. 2;Goodtitle^.Jones,id.47; andsee 
 
 1 Sugd. V. & P. 475, 6. ■ Bartlettu. Downes, 3 B. &Cr. 616. 
 
 (ff!) 1 Sugd. V. & P. 473, 4. (p) Doe v. Wright, 2 B. 8: Aid. 710, 
 
 (n) Marquis of Townsend v. Bishop vide post 
 
 of Norwich, 1 Sugd. V. & P. 505; an- (g) Doe v. Plowman, 2 B. & Ad. 573, 
 
 24 
 
370 OF THE PRESUMPTION OF A 
 
 Where an old satisfied term, though not expressly assigned to 
 attend, has been recently recognised and dealt with as a subsisting 
 r*9fi9n i'l*'^'^^^** ^* ^^ *clear that no previous lapse of time, however 
 *- -■ great, will be a sufiicient reason for presuming its surren- 
 der.(r) (1) 
 
 If a term of years, created to secure certain chal-ges, be mortgaged 
 to the tenant for life, who pays off the charges, no lapse, of time will 
 raise a presumption of its surrender as against the tenant for life, or 
 his representatives. (s) For in that case the term would still remain 
 in gross and on foot for the benefit of the tenant for lifei, , 
 
 3d. — The object of the presumption must be tQ; gre^^^nt a just title 
 from being defeated by mere matter of form. 
 
 According to the doctrine laid dOTfi. by Lord. Mansfield and Lord 
 Kenyon, this is the third requisite for raising the presumption of a 
 conveyance or surrender of a legal estate outstanding in a trustee.(t) 
 Its reasonableness and justice is obvious ; for otherwise one of the 
 great protections afforded by the law to innocent purchasers would 
 be done away with, and a doctrine, which was introduced for the 
 security and quieting of just titles, would be continually liable to be 
 perverted to the purposes of injustice and oppression, (m) 
 
 Accordingly, as a general rule, this presumption will be made in 
 favor only of the person in whom the beneficial title is for the time 
 being clearly vested, although for this purpose it is immaterial 
 whether the person claiming the benefit of the presumption be entitled 
 to the equitable estate in fee simple ;(») or as grantee for life;(«/) or 
 as a lessee for a term of years. (^) 
 
 In the recent case of Doe v. Cook, (2) the Court of C. P. refused to 
 presume the surrender of an outstanding term in favor of a defen- 
 dant, who showed no other title to the premises which were sought 
 to be recovered, than that of a mere naked possessiou.(a) 
 
 In Doe V. Wright, neither of the parties to the action had esta- 
 
 (r) Doe V. Scott, 11 East, 478. (a;) Wilson v. Allen, IJ. & W. 611, 
 
 (s) Redington v. Redington, 1 Ball. & Noel v. Bewley, 3 Sim. 103; Tenny v. 
 
 Beat. 131. Jones, 10 Bingh. 75. 
 
 (() Lade v. Holford, Bull. N. P. 110; (y) Bartlett v. Downes, 8 B. & Cr. 
 
 Doe V. Sybourn, 7 T. R. 2; Goodtitle v. 616. 
 
 Jones, id. 47. (2:) Doe v. Cook, 6 Bingh. 174. 
 
 (tt) See Doe v. Cook, 6 Bingh. 179; (a) England v. Slade, 4 T. R. 682; 
 
 and Tenny v. Jones, 10 Bingh. 75. Doe v. Sybourn, 7 T. R. 2. 
 
 (1) It nowhere appears to have been decided, what would be the effect of a 
 general declaration, which is not unfrequently inserted in deeds of conveyance, 
 that all terms not then assigned to attend shall be presumed to have been surren- 
 dered. However, it is conceived that such a declaration would be conclusive as 
 to the presumption at least against all the parties to such a declaration, who at 
 the time were entitled to the benefit of any terras, as well as per-sons claiming 
 under them, whatever might be its operation as affecting other persons. 
 
RECONVEYANCE OR SURRENDER. 371 
 
 Wished an exclusive title to the beneficial ownership, for they both 
 claimed in the same character, viz., as heir. An outstanding term 
 was notwithstanding presumed to be surrendered ; for if either claim- 
 ant had been suffered to set it up against the other, the party who 
 availed himself of the advantage might have turned out not to be the 
 real heir, and thus a just title might have been defeated by the mere 
 formal defect.(6) 
 
 All the decisions, therefore, that have hitherto been mentioned, 
 support the position, that the presumption will only be made in favor 
 of a just title, and also to prevent that title from being defeated. 
 However, the case *of Doe v. Hilder(c) is directly at variance p^o(;n-i 
 with the latter branch of this proposition. In that case both L J 
 the parties had an equitable interest in the property ; one represent- 
 ing a purchaser for valuable consideration, and the other being a 
 judgment creditor of the vendor, who had issued an elegit previously 
 to the sale. The equitable rights of the parties were therefore tole- 
 rably equal, or rather, as Sir Edward Sugden has shown, the equity 
 of the purchaser was the stronger of the two,((i) and the purchaser 
 then fortified his equitable title by getting in the legal estate, which 
 was outstanding in an old term of years. It was notwithstanding 
 held by the Court of K. B., that the surrender of the term was to be 
 presumed in favor of the judgment creditor, so as to defeat the pur- 
 chaser's title. However, it has been already observed, that this case 
 cannot now be considered a binding authority, (e) 
 
 But there is a series of other cases, in which the latter branch of 
 this proposition, viz., that the presumption is to be made, only in 
 order to prevent a just title from being defeated by a matter of 
 form — appears to have been lost sight of. These are those cases, in 
 which a purchaser has been compelled to accept a title, the validity of 
 which is founded on the presumption of a conveyance or surrender of 
 an outstanding legal estate. (/) 
 
 The first case in which this doctrine was applied in practice, was 
 that of Hillary v. Waller ;(^) where a purchaser objected to the title 
 on the ground, that there was no evidence of the reconveyance of the 
 legal fee, which had been vested in a trustee by a conveyance dated 
 140 years previously ; Sir Wm. Grant, M. R., overruled the ob- 
 jection, and decreed a specific performance of the agreement against 
 the purchaser ; and this decision was affirmed on appeal by Lord 
 Erskine.(^) 
 
 Sir E. Sugden has observed, that this case has not met with the 
 
 (6) Doe V. Wright, 2 B. & Aid. 710. Emery v. Grocock, 6 Mad. 54 ; Ex parte 
 
 (c) 2 B. & Aid. 782. Holman, 1 Sugd, V. & P. 509, 10; Cooke 
 
 Id) 1 Sugd. V. & P. 501, 2. V. Soltau, 2 S. &St. 154; Townsend v. 
 
 (e) Vide supra. Champernown, 1 Y. & J. 543. 
 (/) Hillary v. Waller, ]2Ves. 239; (g-) Hillary u. Waller, 12 Ves. 239. 
 
372 OF THE EFFECT OF THE 
 
 approbation of the profession ; and that it has occasioned conside- 
 rable diflGiculties in practice. (A) But the doctrine, which it esta- 
 blished, has since been recognised and acted upon in a series of cases, 
 in which reconveyances and surrenders of outstanding legal estates, 
 as well in fee(i) as for terms of years,(A) have been presumed against 
 purchasers, by whom a specific performance has been resisted on 
 account of that defect in the title. It is now too late, therefore, to 
 question the soundness or propiriety of the principle on which those 
 decisions have proceeded. 
 
 v.— OF THE APPLICATION OF THE STATUTES OF LIMITATION AS 
 EEGAKDS THE ESTATE OF TRUSTEES. 
 
 » 
 
 It has been laid down in general terms in some of the older cases, 
 that the Statutes of Limitation do not run against a trust. (Z)' How- 
 ever, this position, though generally true, must not be admitted with- 
 out some qualification. 
 
 As between trustees and cestui que trust, an express trust, con- 
 
 stituted *by the act of the parties themselves, will not be 
 
 •- J barred by any length of time, for in such cases there is no 
 
 adverse possession, the possession of the trustee being the possession 
 
 of the cestui que trust.(m)[Vf And the law on this point is not 
 
 (A) 1 Sugd. V. & P. 350, 1. (i) Sheldon v. Wildman, 2 Ch. Ca. 
 
 (i) Cooke V. Soltau, 2 S. & St. 154. 26 ; Hollis's case, 2 Veatr. 345. 
 
 Ik) Emery v. Grocock, 6 Mad. 54 ; (ni) Beckford v. Wade, 17 Yes. 97 ; 
 
 Ex parte Holman, 1 Sugd. V. & P. Hovenden ti. Lord Annesley, 2 Sch. & 
 
 509 ; Townsend v. Champernown, 1 Y. Lef. 633 ; YV^edderburn v. Wedderbum, 
 
 & J. 538. 4 M. & Cr. 52. 
 
 (1) And where there are several trustees, the Statutes of Limitation will not 
 run against the cestui que trust, as long as any one of the trustees is in possession. 
 Attorney-General v. Flint, 4 Hare, 147. 
 
 ' See the Statute of New York, stated ante, note to page 168. By the Ohio 
 civil code of 1853, tit. ii. ch. 1, § 6, continuing and subsisting trusts are ex- 
 pressly excepted from the operation of the provisions of that title, with regard to 
 the " limitation of civil actions." 
 
 2 It has been uniformly ruled in the United States, that in the case of an express 
 continuing trust, the Statute of Limitations does not begin to run as against the 
 cestui que trust, and in favor of the trustee, until there has been some open ex- 
 press denial of the right of the former, and what amounts to an adverse posses- 
 sion on the part of the latter. Decouche v. Savetier, 3 J. C. R. 190; Anstice v. 
 Brown, 6 Paige, 448; Kane v. Bloodgood, 7 J. C. R. 90; Bohannon's heirs v. 
 Sthresley's adm., 2 B. Monr. 438; Foscue v. Foscue, 2 Ired. Eq. 321 ; White v. 
 White, 1 Johns. Maryl. Ch. 56; Pinson v. Grey, 1 Yerg. 296; Cooki>. Williams, 
 1 Green, Ch. 209 ; Boone v. Chiles, 10 Pet. 177 ; Prevost v. Gratz, 6 Wheat. 481; 
 Oliver V. Piatt, 2 How. U. S. 333 ; teller's lessee v. Eckart, 4 Id. 289; Johnson 
 V. Humphreys, 14 S. & R. 394; Finney ii. Cochran, 1 W. & S. 118; Murdochs. 
 
STATUTES OF LIMITATION. 373 
 
 affected by the late Limitations Act (3 & 4 Will. IV. c. 27) ; for the 
 25th section of that statute expressly provides, that time shall not 
 run against an express trust, until the land or rent vested in the 
 trustee shall have been conveyed by him to a purchaser for a valu- 
 able consideration ; and that it shall then run only in favor of the 
 purchaser and the parties claiming under him.' 
 
 Therefore in case of express trust, accounts have been decreed 
 against trustees, extending over periods of thirty, forty, and even 
 forty-five years, (w) And the rights of the cestui que trust will not 
 
 (n) Beaumont v. Boultbee, 5 Ves. Atty.-Gen.u. Brewers' Company, iMer. 
 485; Townsend v. Townsend, 1 Cox, 495. 
 28 ; Chalmer v. Bradley, IJ. & W. 51 ; 
 
 Hughes, 7 Sm. & M. 219 ; Starke v. Starke, 3 Rich. 438; Perkins v. Cartwell, 4 
 Harring. 270; Varich D. Edwards, 11 Paige, 259; Farnum v. Brooks, 9 Pick. 
 212; Smith v. Calloway, 7 Blackf. 86; McDonald v. Sims, 3 Kelly, 383; see 
 Wicklifle v. City of Lexington, 1 1 B. Monroe, 161. And even in cases of adverse 
 possession the knowledge of, or notice to, the cestui que trust is necessary. Fox v. 
 Cash, n Penn. St. R. 207; Starke v. Starke, 3 Rich. 438. Where a trustee for 
 the sale of stock actually sells, and incurs a liability for the proceeds, the statute 
 begins to run from that time. White v. White, 1 John. Mary. Ch. 56. So, in 
 general, where the relation is terminated by a breach of trust. Wickliffe v. City 
 of Lexington, 11 B.Monroe. 161. Where the trust, however, is merely impHed 
 or constructive, there has been some disagreement among the cases, but the 
 better opinion appears to be that, as in general the facts out of virhich such trust 
 arises, from their very nature presuppose an adverse claim of right on the part 
 of the trustee by implication, from the beginning, the .statute will commence to run 
 against the cestui que trust, from the period from which he could have vindicated 
 his right by action or otherwise ; which, however it may be at law, where there 
 has been a difference among the cases, (see Angell on Limit., ch. 18), in 
 equity is considered to be when he has, or, with reasonable diligence, could have 
 made himself acquainted with that right. Angellon Limitation, ch. 16, 35 ; and 
 cases there cited ; 19 Am. Jurist, 389 ; Sheppard v. Turpin, 3 Gratt. 373 ; Murdock 
 V. Hughes, 7 Sm. & M. 219; Gratz v. Prevost, 6 Wheat. 481; Cuyler v. Brant, 
 2 Caines Cas. 326 ; and note ante, p. 168, on the effect of lapse of time in equity, 
 A resulting trust from the payment of purchase-money is barred by the statute, 
 Strimpfler v. Roberts, 18 Penn. St. R. 300. As an executor or administrator is a 
 trustee for legatees, next of kin, or creditors, the general rule applies, Lindsay v. 
 Lindsay, 1 Desaus. 150; Carr v. Bob, 7 Dana, 417; Blue v. Patterson, 1 Dev. 
 &Batt. Eq. 457; Bird v. Graham, 1 Ired. Eq. 196 (except where there is some 
 statutory limitations, as there is indeed, in most of the States, see post, 341 n.) ; 
 though there will be a presumption of payment after a great lapse of time. Bird v. 
 Graham, ut supr. ; Graham v. Torrance, 1 Ired. Eq. 210; Shearin v. Eaton, Id. 
 282 ; Graham v. Davidson, 2 Dev. & Batt. 155; Tate v. Connor, 2 Dev. Eq. 224 ; 
 Hudson V. Hudson, 3 Rand. 1 17 ; Hayes v. Good, 7 Leigh, 452 ; Skinner v. Skin- 
 ner, ] J. J. Marsh. 594; see Angell on Limitations, eh. 16. 
 
 These questions with regard to the statute, only apply as between trustee 
 and cestui que trust. Lyon v. Marclay, 1 Watts, 275. Among several cestui que 
 trusts none can take advantage of possession against the rest. Foscue v. 
 Foscue, 2 Ired. Eq. 321. 
 
 ' See Voung v. Lord Waterpark, 10 Jur. 1; 15 L. J. (Ch.) 63; 13 Sim. 204 
 Garrard v Tuck, 8 C. B. 247. 
 
374 OF THE EFFECT OF THE 
 
 be affected by a fine levied by the trustees, or a purchaser from 
 him.(o) The law on this subject has recently been fully considered, 
 and the principle, as stated above, adopted in the case of Wedderburn 
 V. Wedderburn, which came before Lord Langdale, M. R., and was 
 subsequently brought by appeal before Lord Cottenham.(p) So in a 
 very recent case a testator, who died in 1795, devised his real estates 
 to trustees to sell and pay certain annuities. The trustees entered 
 into possession, and the survivor remained in possession, until 11 
 years before the filing of the bill, but no payment had been made in 
 respect of the annuities for more than twenty years before the bill 
 was filed. It was contended, that the annuitants were barred by 
 the Statute of Limitation ; but the Vice-Chancellor (Sir L. Shadwell) 
 held, that there was no adverse possession during the time that the 
 trustees continued in possession, and his Honor granted the relief 
 prayed by the bill.(g') And in another case, where the heir-at-law 
 of a testator, who was also devisee in trust under his will, entered 
 into possession of the estate as trustee, and received the rents from 
 1811 down to 1835 ; it was held by Lord Langdale, M. R., that he 
 could not plead the Statute of Limitation in answer to a bill for an 
 account filed in 1836.(r) 
 
 However, these observations apply only to cases, where the rela- 
 tion of trustee and cestui que trust is still subsisting. For although 
 an express trust may once have been created, yet if the trustee, with 
 the full knowledge and consent of the cestui que trust, have devested 
 himself of that character, by parting with the legal estate, and set- 
 tling his accounts, and obtaining a release from the person benefi- 
 cially interested, the court in the absence of fraud will be very re- 
 luctant to entertain a claim, arising out of the trust transactions, 
 where there has been such a lapse of time, as in ordinary cases would 
 constitute a bar under the Statute of Limitations. And this distinc- 
 tion was clearly recognised, and maintained, both by the 
 L J *Master of the Rolls and the Lord Chancellor, in deciding 
 the case of Wedderburn v. Wedderburn. (s) 
 
 Where the trust is created merely by implication or construction 
 of law, the plea of lapse of time will be more readily admitted, as a 
 bar to any claim by the cestui que trust against the trustee.(t) In 
 such cases, the possession of the trustee is usually to a certain extent 
 adverse to the cestui que trust; for it rarely happens that such a 
 
 (o) Thompson v. Simpson, 1 Dr. & (s) Wedderburn v. Wedderburn, 2 
 
 W. 459. Keen, 749; S. C. 4 M. & Cr. 52; see 
 
 (p) Wedderburn v. Wedderburn, 2 Portlock v. Gardner, 1 Hare, 594. [See 
 
 Keen, 722; S. C. 4 M. & Cr; 41. Wycliffei). Lexington, 11 B.Monr.l61.] 
 
 (5) Wood V. Arch, 12 Sim. 472. (t) Breclcford v. Wade, 17 Ves. 97; 
 
 (r) Man v. Rickets, 13 Law Journ. Hovenden v. Lord Annesley, 2 Sch. & 
 
 N. S., Chanc. 194. Lef. 633. [See ante, note, page 264.] 
 
STATUTES OF LIMITATION. 375 
 
 trust is expressly recognised, or admitted by the parties.(M) There- 
 fore, though in strictness the Statutes of Limitation can scarcely be 
 said to apply to these equitable cases, courts of equity have always 
 admitted the validity of a defence founded on the analogy of those 
 statutes, and have refused relief, ■where the party, with full know- 
 ledge or being in a situation to have full knowledge of his rights, 
 has delayed for twenty years to prosecute his claim. (a;) On more 
 than one occasion, a delay of eighteen years in enforcing a claim 
 founded on a constructive trust has been held a sufficient reason for 
 dismissing the bill.(^) Where the period of acquiescence has been 
 longer than twenty years, the ground of defence will of course be 
 proportionably stronger, and more difficult to overcome. (a) 
 
 However, even in cases of constructive trusts, mere lapse of time 
 will not of itself be always a bar to the relief. The party entitled 
 to the benefit of the trust must also have been aware of his rights, 
 and must have acquiesced in being deprived of them by the trustee ; 
 and time as a bar to the remedy runs only from the commencement 
 of such acquiescence. (a) Therefore, where the parties equitably en- 
 titled have not been in a situation to become acquainted with their 
 rights, the court in numerous instances has enforced the performance 
 of a constructive trust, notwithstanding the long interval that had 
 elapsed since the title had accrued. Thus in Stackpole v. Da- 
 voren,(6) an account of rents and profits of an estate was decreed, 
 under peculiar circumstances of fraud and imposition, after an ad- 
 verse possession of fifty years. (S) And in a recent case, Sir C. 
 Pepys, M. E.., set aside a purchase by a steward at an undervalue 
 after an interval of forty-seven years :(c) and many other decisions 
 of a similar tendency are to be met with in the book3.(d) 
 
 (u) CoUard v. Hare, 2 R. & M. 683. (a) Blennerhasset v. Day, 2 Ball. & 
 
 (a:) Smith v. Clay, 3 Bro. C. C. 639, B. 118; Trevelyan v. Charter, Rolls, 
 
 n. ; Bond v. Hopkins, 1 Sch. & Lef. 429 ; June 2, 1835. [Ante, note, p. 168, and 
 
 Horenden u. Lord Annesley, 2 Sch. & see this subject further considered, post, 
 
 Lef. 636, 7; Medlicott ii. O'Donnell, 1 Remedies for Breach of Trust, p. 518.] 
 
 Ball. & Beat. 164; Cholmondeleyu. Clin- (i) Stackpole v. Davoren, 1 Bro. P. 
 
 ton, 2 J. & W. 141, 151 ; Pryce v. Byrn, C. 9. 
 
 cited 5 Ves. 681. (c) Trevelyan v. Charter, Rolls, 2 Junej 
 
 (i/) Gregory v. Gregory, Coop. 201; 1835; [affirmed 11 CI. & F. 714.] 
 
 Champion v. Rigby, 1 R. & M. 539; {d) Vernon v. Vaudry, 2 Atk. 119; 
 
 see Selsea v. Rhoads, 1 Bl. N. S. 1. Alder v. Gregory, 2. Ed. 280 ; Malony 
 
 (z) Norris v. Neve, 3 Atk. 38 ; An- v. L'Estrange, 1 Beat. 406 ; Randall v. 
 
 drew V. Wrigley, 4 Bro. C. C. 124; Errington, 10 Ves. 423; Purcell v. 
 
 Bonny v. Ridgard, cited id. 138 ; Pryce M'Namara, 14 Ves. 91 ; Pickett v. Log- 
 
 V. Byrn, 5 Ves. 681 ; cited Campbell v. gan, id. 215; Murray v. Palmer, 2 Sch. 
 
 Walker, 5 Ves. 678, 82 ; Morse v. Royal, & Lef. 487 ; Aylward v. Kearney, 2 Ball. 
 
 12 Ves. 355; Ex parte Grainger, 2 Deac. &B. 463 ; Gordon v. Gordon, 3 Sw. 400 ; 
 
 & Ch. 459; Bonny v. Ridgard, 1 Cox, Watson v. Toone, 6 Mad. 153. 
 146 ; see this subject further considered, 
 
376 OF THE EFFECT OP THE 
 
 r*9fifi1 *Moreover, a cestui que trust will not be barred from his 
 ■- -^ right to relief by any length of acquiescence, unless he have 
 an immediate possessory title to the beneficial interest. For instance, 
 where a person was entitled to the trust of a beneficial lease in re- 
 mainder after the determination of a previous life estate, and the 
 trustees suiFered the lease to expire in 1798 ; but the tenant for life 
 did not die until 1830, the cestui que trust in remainder was held en- 
 titled to relief against the trustees upon a bill filed by him in 1831, 
 although he had been of full age since 1800.(e) 
 
 It is almost needless to add, that a cestui que trust being an infant or 
 otherwise non sui juris cannot be prejudiced by any acquiescence.(/) 
 
 Where the conduct of the trustee is tainted with fraud, the same 
 doctrine will be applied with even greater stringency ; and the time 
 will commence running only from the discovery of the fraud. And 
 the 26th section of the act- 3 & 4 Will. IV. c. 27 expressly enacts, 
 that in cases of concealed fraud, time shall not begin to run until the 
 fraud shall, or with reasonable diligence might, have been known or 
 discovered, with a saving, however, of the rights of bona fide pur- 
 chasers for valuable consideration without knowledge of the fraud. 
 
 Acquiescence has not the same effect in barring an equitable right 
 where the parties interested consist of a numerous body of persons, 
 such as creditors, or a society or congregation of dissenters ; for re- 
 lief will be decreed in favor of such objects after very considerable 
 delay.(5') And on the same principle, it has been determined that 
 trusts for charities are not afi"ected by the Statutes of Limitation.(A) 
 And the first section of the new statute 3 & 4 Will. IV. c. 27, has 
 not altered this rule.(i)(l) 
 
 For the same reason that the possession of the trustee is not usu- 
 ally a bar to the cestui que trust, the possession of the cestui que 
 trust, for however long a period, will not in general displace the legal 
 title of the trustee. For the holding in either case is not adverse.' 
 
 (e) Bennet v. CoUey, 5 Sim. 181 ; 2 Mackenzie, 3 Bro. P. C. 42; Atty.-Gen. 
 
 M. & K. 225; and see Thompson v. v. Lord Dudley, Coop. 146. 
 Simpson, 1 Dr. & W. 459, 489. (A) Atty.-Gen. v. Mayor of Coventry, 
 
 (/) March v. Russell, 3 M.SfCr. 31, 2 Vern. 399; Atty.-Gen. v. Mayor of 
 
 42; [but as regards strangers claiming Bristol, 2 J. & W. 321; Atty.-Gen. v. 
 
 against legalestate, it is different; Wil- Mayor of Exeter, Jac. 448. 
 Hams V. Otey, 8 Humph. 563 ; see Smi- (i) Irish Incorporation Society v: 
 
 lie V. Biffle, 2 Barr, 52.] Richards, 1 Dr. & W. 258 ; Atty.-Gen. 
 
 (g-) Whichcote v. Lawrence, 3 Ves. v. Perse, 2 Dr. & W. 67 ; Atty.-Gen. v. 
 
 740, 52; Case in Exchequer, cited 6 Flint [4 if are, 147]. 
 Ves. 632; York Buildings Company v. 
 
 (1) The first section of 3 & 4 Will. 4, c. 27, declares that the vcord " person" shaU 
 extend to a body politic, corporate, or collegiate, and to a class of creditors or 
 other persons, as well as an individual. 
 
 ' In Doe d. Jacobs v. Phillips, 10 Q. B. 130, it was held under the statute 
 of 3 & 4 William IV., that the possession of the cestui que trust was ad- 
 
STATUTES OF LIMITATION. 377 
 
 At law the cestui que trust is regarded as tenant at will to the 
 trustee, <ind he cannot be ejected without a previous demand of pos- 
 session. Therefore, until this tenancy is determined, there can be no 
 adverse possession between the parties. (A) 
 
 In a late case a cestui que trust for life, under the trusts of a set- 
 tlement, acting as the agent of the trustees, who had a power of sale, 
 sold the trust estate for 8,440Z., and at the same time purchased an- 
 other estate for 17,400Z., which was conveyed to the tenant for life 
 absolutely in his own name, and he remained in possession for thirty- 
 one years, and then became *bankrupt, but the whole of the r-^g^wn 
 8,440Z. (the purchase-money of the first estate) was applied ^ ^ 
 in part payment of the purchase-money for the second estate, so that 
 the second estate was in fact subject to the trusts of the settlement 
 to the extent of the 8,440Z. It was held that the possession of the 
 cestui que trust for life, being consistent with the settlement, created 
 no adverse title as against the trustees, who were therefore entitled 
 to enforce their lien on the estate for the 8,440Z., notwithstanding 
 the lapse of time.(^) 
 
 However, if there be a formal denial or disclaimer of the tenancy 
 by the cestui que trust, or he continue to deal with the estate in a 
 manner inconsistent with its subsistence, he may doubtless disseise 
 the trustee, and thus acquire an adverse possession, upon which the 
 Statutes of Limitation will then operate, so as to vest in him an inde- 
 feasible legal title. However, it must always be a very nice and 
 difficult question to determine, whether and at what time such an 
 adverse possession on the part of the cestui que trust has been actually 
 acquired •,{m) and a title based on such a transaction could never 
 safely be accepted. 
 
 But it is clear that the legal estate vested in a trustee, together 
 with the equitable interest dependant on it, may be defeated and de- 
 vested by the disseisin of a stranger who has no notice of the trust.' 
 
 (A) Right V. Beard, 13 East, 2 10; Doe {I) Price v. Blakemore, 6 Beav. 507, 
 
 V. Jackson, 1 B. & Cr. 448; Doe v. Jones, 514. 
 
 10 B. & Cr. 718; Roe v. Street, 4 Nev. (m) Keene v. Deardon, 8 East, 247; 
 
 & M. 42 ; 4 Bac. Abr. 198 ; Co. Litt. 54, Earl of Portsmouth v. Lord Effingham, 
 
 b. [Young D. Lord Waterpark, 10 Jur. 1 Ves. 435: Harwood v. Oglender, 3 
 
 1; Garrard «. Tuck, 8 C. B.248; An- Ves. 131; Cholmondeley u. Clinton, 2 
 
 gell, Liraitat. Ch. 35]. Mer. 360. 
 
 verse against the trustee from the moment he was entitled to possession, and 
 therefore that the statute applie'd to the case of a terra attending the inheritance. 
 But in Young v. Lord Waterpark, 13 Sim. 204, 10 Jur. l,and in Garrard t). Tuck, 
 8 C. B. 248, the opposite conclusion was arrived at; and this appears to be the 
 better opinion in England. See Sugden's Concise View, &c., 356. 
 
 'Elraendorf v. Taylor, 10 Wheat. 152; Williams v. Otey, 8 Humph. 563; 
 Smilie v. BifHe, 2 Barr, 52. In the case of a separate use of a feme covert, the 
 possession of the husband, consistent with the trusts of the deed, is not adverse 
 to the trustee. Henson v. Kinnaird, 3 Strobh. Eq. 371. 
 
378 EFFECT OF STATUTES OF LIMITATION. 
 
 And the Statutes of Limitation will in such a case constitute as 
 eflFectual a bar as if no trust estate had been interposed. However, 
 this doctrine was once not entirely free from doubt. For in an early 
 case Lord Macclesfield is reported to have overruled a plea of the 
 Statute of Limitations, on the ground that the legal estate was in , 
 trustees, (w) And on another occasion, Sir J. Jekyll, M. R., laid it 
 down as a rule, that the forbearance of the trustees, in not doing 
 what it was their oflSce to have done, should in no sort prejudice the 
 cestui que trust.{o) 
 
 But it was said by Lord Hardwicke, in the case of Lewellen v. 
 Mackworth,(p) that the rule, that the Statute of Limitations does 
 not bar a trust estate, holds only as between cestui que trust and 
 trustee, not between cestui que trust and trustee on the one side and 
 strangers on the other ; for that would make the statute of no force 
 at all, because there is hardly any estate of consequence without a 
 trust. Therefore, where a cestui que trust and his trustee are both 
 out of possession for the time limited, the party in possession has a 
 good bar against them both. And the application of the Statute of 
 Limitations, in favor of strangers to the trust, has been affirmed in 
 equally positive language by other judges. (y) In Cholmondeley v. 
 Clinton, Sir Wm. Grant, M. R., alluded to the decision in Lawleyw. 
 Lawley without any disapprobation. (r) But when that case subse- 
 quently came before Sir Thomas Plumer, M. R., on further direc- 
 tions, that learned Judge decided, that the existence of the legal 
 estate in trustees did not prevent the operation of time as a bar as 
 between parties claiming adversely the equitable interest, and in the 
 r*o«aT °°'^''^® "f ^'s *judgment his Honor commented upon and ex- 
 '- -^ plained the case of Lawley v. Lawley, which he showed to 
 have been very incorrectly stated in the printed report.(s) The de- 
 cision of Sir Thomas Plumer was affirmed on appeal by the House of 
 Lords, and the doctrine as laid down above must therefore be con- 
 sidered as finally established.(() 
 
 It seems still somewhat doubtful, how far the infancy of the, cestoi 
 que trusts will prevent the adverse possession of a stranger from ope- 
 rating as a bar to their claims. In one instance, where the cestui que 
 trust was under the disability of infancy at the time of the disseisin, 
 the court interfered, and relieved against the effect of a fine by a 
 stranger, and five years non-claim, by which the legal title of the 
 
 (n) Lawley ■■«. Lawley, 9 Mod. 32. Pentland v. Stokes, 2 Ball. & B. 75, per 
 
 (o) Lechmere v. Earl of Carlisle, 3 P. Lord Manners. 
 
 Wms. 215. [Cowling v. Douglass^ 4 (r) 2 Mer. 360. 
 
 Alab. 206.] (s) Cholmondeley v. Clinton, 2 J. & 
 
 ip) 2 Eq. Ca. Abr. 579. W. 171, 5. [See Elmendorffw. Taylor, 
 
 (g) Hovenden v. Lord Annesley, 2 10 Wheat. 174.] 
 
 Sch. & Lef. 629, per Lord Redesdale; («) 2 J. & W. 191. 
 
INCIDENTS TO THE ESTATE OF TRUSTEES. 879 
 
 trustee had been barred.(M) However, Lord Chancellor Parker is 
 reported to have said, that in favor of & purchaser, a fine and non- 
 claim should bar the cestui que trust, though an infant.{x) And this 
 appears to be the true doctrine of the court, although the point might 
 perhaps still be open to argument.' 
 
 "Where the trustee who has the legal right of enforcing a claipi, is 
 under any disability, it would follow conversely from this doctrine, that 
 the Statutes of Limitation would not begin to run, until that disa- 
 bility ceased. However, the point does not appear to have been ever 
 expressly decided.(2/) 
 
 On the whole it must be admitted, that the effect of the Statutes 
 of Limitation, as applied to the estate of trustees, is left in a very 
 unsatisfactory state by the authorities, and it is extremely difficult to 
 gather from them any very definite rules of general application on 
 the point. 
 
 *CHAPTER III. C*269] 
 
 OF THE INCIDENTS TO, AND LEGAL PEOPEKTIES OF THE 
 ESTATE OF TEUSTEES. 
 
 Conveyances to uses before the statute of Henry VIII. were at- 
 tended with this inconvenience — viz., that the estates of the feoffees 
 to uses, were subject to all their legal incumbrances.(a) But upon 
 the establishment of trusts, it was settled that trustees held only for 
 the benefit of the cestui que trust, and that the legal estate should 
 not be subjected to any of their incumbrances. (J) 
 
 Therefore the legal inheritance, vested in trustees, is not in equity 
 subject to the dower or freebench of their widows, or to the estate by 
 curtesy of their husbands, although those rights will attach on the 
 trustee's estate at law.{c) Nor will that, or any other interest, held 
 only in trust, be affected in equity by the judgment, or other debts 
 or engagements, or by the bankruptcy or insolvency of the trustee.(ci)^ 
 
 (u) Allen V. Sayer, 2 Vern. 368. Abr. 728 ; Noel v. Jevon, 2 Freem. 43 ; 
 
 (a;) Earl v. Countess of Huntingdon, Hinton v. Hinton, 2 Ves. 631; 1 Sugd, 
 
 3 P. Wms. 310, n.; see Wych v. East V. & P. 358, 9, 9th ed. 
 
 India Company, id. 309; and see also {d) Copeman v. Gallant, 1 P. Wms. 
 
 Pentland v. Stokes, 2 Ball. & B. 75. 314 ; Finch v. Earl of Winchelsea, 1 P. 
 
 {y) Vide post, Part III. Div. I. Ch. III. Wms. 278 ; Bennett v. Davis, 2 P. Wms. 
 
 (o) 1 Cruis. Dig. Tit. XL c. 2, p. 7. 318.; Scott v. Surman, Willes, 402 ; Car- 
 
 (6) 1 Cruis. Dig. Tit. XII. c. 4, s. 1. penter v. Marnell, 3 B. & P. 40, vide 
 
 (c) Casborn v. Enghsh, 2 Eq. Ca. post, p. 530 (Bankruptcy.) 
 
 ' It was so ruled in Williams v. Otey, 8 Humph. 563. See Smilie v. Biffle, 2 
 Barr, 52. 
 ' Lounsburry v. Purdy, 1 1 Barb. S. C. 490 ; Beaver v. Filson, 8 Barr, 327 ; Bush 
 
380 OF THE INCIDENTS TQ AND LEGAL 
 
 Previously to the recent statute 4 & 5 Will. IV. c. 23, if a trustee 
 of real property died without leaving an heir, the legal estate 
 escheated to the crown or other superior lord. And in like manner 
 the real or personal est3.te vested in a trustee was forfeited to the 
 crown or other superior lord, upon attainder or conviction for treason 
 or felony. And we have seen, that it was then a very doubtful ques- 
 tion, whether the trust could be enforced against the crown, or other, 
 lord, taking by forfeiture or escheat, (e) However, as has been al- 
 ready stated, a partial remedy for this inconvenience and injustice 
 was pro^'ided by the statute 39 & 40 Geo. III. c. 88, which enabled 
 the sovereign to direct the execution of any trusts, to' which any 
 escheated lands were liable. And the recent act (4 & 5 Will. IV. c. 
 23) effectually does away with the mischief, by providing, that real 
 or personal property held in trust shall not be the subject of forfei- 
 ture or escheat. The sixth section also declares, that the provisions 
 of the act shall have a retrospective operation, where the escheat or 
 forfeiture had taken effect within twenty years, and no grant had 
 been made.(/) 
 
 r*o'7rn *The trustee, who has the legal interest in a copyhold, is 
 ■- J regarded by the lord as the real tenant, for the performance of 
 
 (c) Powlett V. Att.-Gen. Hard. 467; supra (Preliminary Chapter), p. 49, Att.- 
 
 Reeve v. Att.-Gen. 2 Atk. 223 ; Penn v. Gen. v. Duke of Leeds, 2 M. & K. 243. 
 
 Baltimore, 1 Ves. 453 ; Eales v. England, (/) Vide supra, p. 49, and note. [And 
 
 Prec. Chan. 200; Burgess v. Wheate, 1 see Hughes v. Wells, 13 Eng. L. & Eq. 
 
 Ed. 177 ; S. C. 1 B. C. 123 ; Williams v. 401, where it was held under these acts 
 
 Lonsdale, 3 Ves. Jun. 752 ; Hovenden v. that trust moneys misapplied, could be 
 
 Lord Annesley, 2 Sch. &Lef. 617; vide traced into land, as against the lord 
 
 claiming by escheat.] 
 
 V. Bush, 1 Strob. Eq. 379; Elliott v. Armstrong, 2 Blackf. 208; Williams v. Ful- 
 lerton, 20 Verm. 346 ; Bostick v. Keizer, 4 J. J. Marsh. 599 ; Wilhelm v. Folraer, 
 6 Barr, 296; Manly v. Hunt, 1 Ham. (Ohio) 257; Porter v. Bank of Rutland, 19 
 Verm. 410. A trustee has not power to confess judgment, even for the purchase- 
 money; Wilhelm v. Folmer, 6 Barr, 296; or for contemporaneous advances; Gor- 
 don's Appeal, 19 Penn. St. R. But where the land is already subject to the lien, 
 the trustee may confess judgment on a sci. fa. to revive. Dickerson!s Appeal, 7 
 Barr, 255. In Bostick v. Keizer, and Elliott v. Armstrong, ut supra, an execu- 
 tion on a judgment against a trustee, was ruled to be void, even so far as to pre- 
 vent a merger on a purchase by the cestui que trust, at the sale. It is, how- 
 ever, generally held in the United States, that* though a judgment creditor, is 
 not protected against secret trusts, yet that a purchaser at sheriff's sale, under 
 such judgment, is. See note to Bassett v. Nosworlhy, 2 Lead. Cas. Eq. p. i, page 
 108 ; Heistner v. Fortner, 2 Binn. 410 ; Jackson v. Post, 15 Wend. 488 ; Orth v. Jen- 
 ning, 8 Black. 420, and other cases; contra, Freeman v. Hill, 1 Dev. & Batt. Eq. 
 389 ; Bank v. Campbell, 2 Rich. Eq. 191. In Pennsylvania, accordingly, it is held 
 as to real estate ; Peebles v. Reading, 8 S. & R. 484 ; and it seems, as to personally. 
 Smith V. Stern, 17 Penn. St. 360 ; that a bona fide purchaser without notice at an 
 execution, takes discharged of secret trusts. A mortgagee without notice is also 
 protected ; Cadbury v. Duval, 10 Barr, 265. See as to mortgages, Coutant v. 
 Servoss, 3 Barb. 128. 
 
PROPERTIES OF THE ESTATE OF TRUSTEES. 381 
 
 the feudal services. And accordingly the customary fines and 
 heriots will become due upon the alienation or death of the trustee, 
 and not upon that of the equitable owner.(9') 
 
 Before the Statute of Uses, if a cestui que use were attainted, or 
 died without heirs, the land did not escheat to the • lord, but the 
 feoffee retained it for his own use.(J^) And the same rule has since 
 been adopted with respect to trusts.^ 
 
 However, the statute 33 Hen. VIII. c. 20, enacted, that if any 
 person should be attainted or convicted of high treason, the king 
 should have the benefit of any uses, &c., to which the attainted party 
 was entitled. And it has been observed by Lord Hale, that this sta- 
 tute applies to cases of trusts since the Statute of Uses, and therefore, 
 upon an attainder for high treason of the cestui que trust of an in- 
 heritance, the equity or trust was forfeited, though possibly the land 
 itself was not forfeited.(i) 
 
 But whatever may be the case in an attainder for high treason, it 
 has been determined by analogy to the case of uses before the statute, 
 that on the attainder of a cestui que trust of real estate for felony, 
 neither the trust nor the land will be forfeited to the crown, but the 
 trustee will hold for his own benefit. This was decided in the case of 
 Attorney-General v. Sands,(A) where the legal estate in lands held of 
 the crown was vested in Sir George Sands, as a trustee for a person 
 who was attainted for murder. On an information preferred against 
 Sir George Sands to obtain a conveyance of the legal estate to the 
 crown, it was held by the Court of Exchequer, that Sir George Sands 
 continued to be seised of the lands, to be the king's tenant, and should 
 therefore hold for his own benefit, discharged of the trust.(A;) 
 
 Upon the same principle, in the case of Burgess v. Wheate, which 
 was elaborately argued before Lord Keeper Henley, assisted by Lord 
 Mansfield and Sir Thomas Clarke, M. R., it was held, both by the 
 Lord Keeper and the Master of the Rolls, that a trust estate of in- 
 heritance did not escheat to the crown by the death of the cestui que 
 trust without heirs, but that the trustee should hold the land for his 
 own benefit discharged from the trust. (Z) This decision was made in 
 
 (g-) Trin. Coll. u. Brown, 1 Vern. 441; 34; per Sir Thomas Clarke, M. R., in 
 
 2 Lord Raym. 994; 1 Cruis. Dig. 305; Burgess v. Wheate, 1 Ed. 177, 199. 
 
 Earl of Bath v. Abney, 1 Dick. 260 ; (i) 1 Hale, P. C. 248. 
 
 Carrt). Ellison, 3 Alk. 73, 77; Wilsons. {k) Att.-Gen. v. Sands, 1 Hale, P. C. 
 
 Hoare, 2 B. & Ad. 350. 249. 
 
 Qi) Brook. Abr. Tit. Feoff, al Use. pi. (?) Burgessu. Wheate, 1 Black. 123; 
 
 S. C. 1 Ed. 177. 
 
 ' This proposition can hardly be considered as applicable under the Statutes 
 of Distribution generally adopted in the United States. It is presumed that 
 trusts would escheat here as well as the legal estate. See Matthews v. Ward, 
 10 G. & J. 443; Darrah v. McNair, 1 Ashm. 236; 4 Kent's Coram. 425; 1 
 Greenl. Cruis. Dig. 448. 
 
882 OF THE INCIDENTS TO AND LEGAL 
 
 opposition to the expressed opinion of Lord Mansfield, who came to 
 the conclusion that the crown was entitled to a decree ; and it was 
 also remarked upon with disapprobation by Lord Thurlow, in the sub- 
 sequent case of Middleton v. Spicer.(wi) But it has been recently 
 recognised and acted upon by the Vice-Chancellor of England, in the 
 late case of Taylor v. Haygarth,(n) which must be considered ashav- 
 P^2„-,-,ing finally established the law on this subject.(o)(l) *How- 
 ever, in such a case, if the trustee has not already the legal 
 possession, he has no equity to compel the lord by escheat to invest 
 him with it — as for instance, by granting admission to a copyhold 
 upon the cestui que trust dying without heirs, (p)* 
 
 The principle of the decision in Burgess v. Wheate was, that the 
 legal estate being vested in the trustee, the land c^nld not escheat 
 for want of a tenant. But this principle clearly does not apply to 
 personal estate. 
 
 And in the case of Middleton v. Spicer,(g') Lord Thurlow refused 
 to extend the doctrine of Burgess v. Wheate to a trustee of a lease- 
 hold estate, who claimed ' to hold beneficially for want of any next 
 of kin of the testator ; and his Lordship decreed in favor of the 
 title of the crown to take the estate by its prerogative as bona 
 vacantia. 
 
 In that case a testator directed his leasehold estates to be sold, 
 
 (m) 1 Bro. C. C. 204; seeFawceti). (p) Williams v. Lord Lonsdale, 3 
 Lowther, 2 Ves. 300. Ves. 752; but see King v. Coggan, 6 
 
 (n) 8 Jurist, 135; 14 Sim. 8. East, 431 ; and. 1 Schriv. Cop. 462. 
 
 (o) See Henchman u. Att.-Gen., 3 M. (g) 1 Bro. C. C. 201; and see 
 & K. 485; Taylor v. Haygatth, 14 Sim. Walker v. Deane, 2 Ves. jun. 170. 
 8; 8 Jurist, 135. 
 
 (l)The same doctrine does not apply to an equity of redemption, which 
 escheats to the lord in default of heirs of the mortgagor, for in that case the mort- 
 gagee will not hold discharged from the equity of redemption, but the lord will 
 be entitled to redeem him to the same extent as the original mortgagor. Down 
 V. Morris, 3 Hare, 394, 404. 
 
 ' In a recent case in England, Onsloww. Wallis, 1 Mac. & Gor. 506; 1 Hall &T. 
 513; 13 Jur. 1085; though not directly decided, the question was very much 
 discussed. There, it appeared, that a trustee, under a deed, held freehold 
 premisesin trust for L. S., her heirs and assigns, for her and their own use andbenefit 
 L .S., who was illegitimate, and died without issue, by her will devised these pre- 
 mises among others to trustees in trust to sell, and out of the proceeds to pay 
 debts and legacies, the legacies being specified in a certain paper marked A. 
 This paper not being forthcoming, the trustee of the deed oflfering to pay the 
 debts, claimed to be entitled to retain the trust premises as for his own benefit. 
 On bill filed, however, by the trustees of the will, a conveyance to them was di- 
 rected, the Lord Chancellor holding that the will gave them a title as against the 
 trustee of the deed, who had nothing to do with the question how the premises 
 would be disposed of, in consequence of their being unable to carry the trusts 
 into effect. 
 
PROPERTIES OF THE ESTATE OF TRUSTEES. 383 
 
 and he bequeathed the money arising from the sale to his executors 
 in trust, after payment of debts and legacies, to pay the residue to a 
 charitable purpose, -which could not take effect ; and he gave legacies 
 to his executors. There being no next of kin, the executors filed a 
 bill, claiming the residue for their own benefit. But Lord Thurlow 
 observed, that the executors, having legacies bequeathed, and being 
 clearly trustees, could not by any possibility take any beneficial in- 
 terest, and he therefore decreed in favor of the crown. (r) And the 
 principle of this decision was subsequently recognised by Lord Lough- 
 borough, C, in the case of Barclay v. Russell,(s) and has since been 
 followed in Taylor v. Haygarth.(t) 
 
 But where the will directs, that the real estate shall be converted, 
 and the proceeds applied by the trustees upon certain trusts, which 
 fail, or are not declared, or do not extend to the whole ; the crown 
 has no equity to compel the trustees to make the conversion, in order 
 to entitle itself to the proceeds as lona vacantia.iu) And though 
 the conversion has been actually made by the trustees in such a case, 
 the crown will not be benefited ; but the trustees will take as if the 
 property had remained unconverted.(a;) 
 
 Upon the same principle it follows, that where a cestui que trust 
 of personal estate is convicted of treason or felony, the beneficial 
 interest will escheat to the crown; and the trustee will not be suffered 
 to hold for his own benefit, as we have seen he would be entitled to 
 do in the case of real estate. 
 
 In general the right to the possession of the title-deeds of pro- 
 perty belongs to the person, in whom the legal estate is vested, (y) 
 although he may only have an estate for life. (2) Therefore, where 
 the legal interest in a ^settled estate is given to trustees p^g^n-, 
 either by deed or will, the right to the possession of the title- L ' J 
 deeds during the continuance of that interest follows as a necessary 
 consequence, and they may maintain an action at law for the pur- 
 pose of recovering them. (a) Or if the deeds have been deposited 
 with the Master under an order in a suit, the court will direct them 
 
 (r) Middleton v. Spioer, 1 Uro. C. C. {y) Strode v. Blackburne, 3 Ves. 
 
 201; see Walker u. Deane, 2 Ves. jun. 225; Harrington v. Price, 3 B. & Ad. 
 
 170. 170. 
 
 («) 3 Ves. 424, 430; and see Hench- (2) Ivie v. Ivie, 1 Atk. 431 ; Ford v. 
 
 man v. Att.-Gen., 3 M. & K. 485. Peering, 1 Ves. Jun. 76; Webb v. Lord 
 
 (0 8 Jurist, 132; [14 Sim. 8; and in Lymington, 8 Ves. 322, n. 
 
 Powell V. Marett, 22 L. J. Ch. 408.] (a) Doe v. Passingham, 6 B. & C. 
 
 (it) TayloriJ.Haygarth, 8 Jurist, 332; 305; Barclay v. CoUett, 4 Bing. N. C. 
 
 14 Sim. 8. [See note to page 53.] 650; see Denton v. Denton, 8 Jurist, 
 
 {x) Taylor sj.Haygarth, 8 Jurist, 132; 388; 7 Beav. 388. 
 14 Sim. 8. 
 
384 01 THE INCIDENTS TO AND LEGAL 
 
 to be delivered to the trustees on a petition for that purpose, when 
 the object, for which they were deposited, has been satisfied.(S)' 
 
 However, in a late case in the Rolls, trustees, who had acquiesced 
 for four years in the possession of the title-deeds and estate by the 
 equitable tenant for life, were restrained from proceeding with an 
 action against him for the recovery of the deeds, on the tenant for 
 life bringing therri into court.{c) 
 
 It is the duty of the trustees to retain the deeds in their custody 
 for the protection of the persons, to whom future equitable estates 
 are limited. And if a trustee of a settlement suffer an equitable 
 tenant for life to obtain possession of the title-deed, and thus become 
 instrumental in defrauding a third person, who advances money to 
 the tenant for life on the faith of the deeds ; the trustee himself may 
 be held liable to the injured party for the consequences of the 
 fraud. (d) However, this liability will not be enforced, unless the 
 trustee acted with a knowledge of the intended fraud, or behaved 
 with such gross negligence, as of itself amounts to equitable fraud.(e) 
 
 But where the legal, as well as the equitable, interest is vested in 
 a person as tenant for life under a settlement, he is entitled to the 
 possession of the title deeds ; and the remainder-man, whether claim- 
 ing as trustee, or for his own benefit, has no right either by action 
 at law, or suit in equity, to take them out of his hands.(/) And 
 although the tenant for life, by means of his possession of the deeds, 
 is enabled to dispose of or incumber the estate to the prejudice of 
 the person entitled in remainder, that is not considered an objection 
 of sufficient importance, to deprive him of his right to the possession 
 of the deeds ;{g) although it would be otherwise, if there were shown 
 to be any reasonable grounds of suspicion, that he actually intended 
 to make an improper use of the deeds. (A) 
 
 In like manner, where the trust property consists of personal 
 
 (6) Buncombe v. Mayer, 8 Ves. 320. v. Lymington, ib. 522, n.; Churchill «). 
 
 (c) Denton v. Denton, 8 Jurist, 388; Small, ib.; Bowles v. Stewart, 1 Sch. & 
 7 Beav. 388; vide post, Trustees of Lef. 223; Knott v. Wise, id., cited 
 Freeholds. Webb v. Webb, 1 Dick. 298. 
 
 (d) Evans v. Bicknell, 6 Ves. 174; (g) Strode t). Blackburne, 3 Ves. 222; 
 Meux V. Bell, 1 Hare, 82, 98. Walwyn v. Lee, 9 Ves. 24 ; post, 513. 
 
 (e) 6 Ves. 190; see Knye •;;. Moore, (fe) See Strode v. Blackburne, 3 Ves. 
 1 S. & St. 65. 223 ; sed vide Hicks v. Hicks, 2 Dick, 
 
 (/) Ford V. Peering, 1 Ves. jun. 76 ; 650. 
 Buncombe v. Mayer, 8 Ves. 320; Webb 
 
 ■ Foster v. Crabb, 16 Jur. 835; 21 L. J. (C. P.) 109; 11 Eng.L. &Eq. 521, 
 was an action of detinue for deeds by a cestui que trust, against a bailee of his 
 trustee, but the question as to the respective rights of the parties did not arise, 
 as the plaintiff admitted an equal title to the possession of the deeds in the trus- 
 tee ; and in that case, the court held, that the possession was ambulatory, and 
 that either party obtaining the deeds, might retain them against the other. 
 
PROPERTIES OF THE ESTATE OF TRUSTEES. 385 
 
 estate, such as bonds, policies, or other securities for money, the 
 trustee by whom the securities are to be realized, is entitled to the 
 possession of the instruments, and may enforce their delivery as 
 against the cestui que trust, who has possessed himself of them.(i) 
 
 Where the legal estate is vested in a person merely as a dry 
 trustee for the person, who is entitled to the absolute beneficial in- 
 terest, we have already seen that it is the duty of the trustee to 
 dispose of and convey *the estate according to the direction (-^n7qn 
 of the cestui que trust. In such cases therefore it is obvious, ■- -■ 
 that the trustee has no right to retain possession of the title-deeds in 
 opposition to the equitable owner. 
 
 The right of a trustee to retain the possession and management of 
 the trust estate as against the equitable tenant for life, has occasion- 
 ally been the subject of controversy. The decision of this question 
 will be governed mainly by the general scope and object of the trust, 
 and the nature of the duties, which the trustee is required to dis- 
 charge. 
 
 Where the entire interest in the estate is vested in the trustees, 
 with directions for their continued management of the property, by 
 keeping the buildings insured from fire, and by paying premiums and 
 annuities, or other periodical payments, out of the annual income, 
 the court will be very reluctant to take the direction and disposition 
 of the estate out of their hands, and to deliver it over unprotected to 
 the equitable tenant for life ; even though the tenant for life ofi"er to 
 bring into court a sufficient sum to secure the payment of the annual 
 charges. (^) 
 
 And where the equitable tenant for life is a female, that will be 
 an additional reason for the court to continue the trustees in the pos- 
 session and control of the estate, with a view to her personal pro- 
 tection in case of her marriage.(Z) And if the trustees are themselves 
 the parties beneficially entitled in remainder after the death of the 
 tenant for life, that circumstance will also have weight with the .court 
 in refusing to invest the tenant for life with the uncontrolled manage- 
 ment of the estate.(m) 
 
 However, it will be otherwise, where it is plain from the expres- 
 sions in the will, that the testator did not intend that the property 
 should remain under the personal management of the trustees ;{n) or 
 (in the absence of any such indication of the intention), if the per- 
 sonal possession or occupation of the property by the tenant for life 
 
 (i) Jones v. Jones, 3 Bro. C. C. 80; (0 Per Sir J. Leach, V. C, 5 Mad. 
 see Poole v. Pass, I Beav. 600. 432. [Post p. 384, &o., and notes.] 
 
 (fc) Tidd V. Lister, 5 Mad. 429; see (m) Tidd v. Lister, 5 Mad. 432. 
 Naylor v. Amitt, 1 R. & M. 501. [Post (n) 5 Mad. 433. 
 p. 384.] 
 
 25 
 
386 OF THE INCIDENTS AND LEGAL 
 
 be beneficial or requisite for its due enjoyment — as in the case of a 
 family residence. (o) 
 
 And where the tenant for life takes a legal estate of freehold, sub- 
 ject to a term vested in trustees for raising a charge, he will be let 
 into possession on the terms of securing the payment of the charge, 
 if, on taking the accounts of the estate, it shall appear that the 
 annual income is amply sufficient to satisfy the incumbrance imposed 
 on it.(p) In a late case in the Rolls, trustees of an estate subject 
 to annuities, were restrained from taking proceedings to compel the 
 payment of the rents to them, although the tenant for life had only 
 an equitable estate, upon the cestui que trust for life undertaking to 
 keep down the annuities. In that case, however, there was no pre- 
 tence of any arrears, or irregularity in payment of the annuities by 
 the tenant for life, which had been done, and possession of the estate 
 kept by him for four years with the acquiescence of the tru8tees.(5) 
 
 Where the annuities, which it is the object of the trust to secure, 
 are in arrears, it will be the duty of the trustees to enter inio posses- 
 sion of the estate, and to give notice to the tenants to pay the rents 
 r*o'7j.n *° them.(r') *And though the arrears may afterwards be paid, 
 "- " the trustees can only be compelled to give up their possession 
 upon such terms as will enable them to resume it again, the moment 
 the purpose of the trust requires it.(s) 
 
 If a sum of money be given by will to trustees, to be applied to 
 charitable purposes, but those purposes are not clearly defined or 
 ascertained, the court will not suffer the fund to be paid over into the 
 hands of the trustees, although there may not be the slightest impu- 
 tation against their characters, but it will direct a scheme for its 
 application. (<) 
 
 A court of law in general recognises only the legal owner of pro- 
 perty ; and every action that is founded on the legal title must be 
 brought by or in the name of the trustee, in whom that title is vested.' 
 
 (o) 5 Mad, 432, 3. (5) Denton v. Denton, 8 Jurist, 388; 
 
 (p) Blake i;.Bunbury,lVes.jun. 194, 7 Beav. 388. 
 514; Bee Tidd v. Lister, 5 Mad. 432; (r) Jenkins t). Milford, 1 J. &W.629. 
 Denton v. Denton, 8 Jurist, 388; 7 Beav. (s) Ibid. 
 
 388. (0 Wellbeloved v. Jones, 1 S. & St. 
 
 40. 
 
 ' In general, actions with regard to the legal estate are to be brought in the 
 name of the trustee. Mordecai v. Parker, 3 Dev. 425. Thus, he must sue in 
 ejectment, (Cox v. Walker, 26 Maine, 504;] Matthews v. Ward, 10 G. & J. 
 443 ; Beach v. Beach, 14Verm. 28 ; Wright «. Douglass, 3 Barb. S. C. 559; Moore 
 V. Burnett, 11 Ohio, 334); except where the trust is terminated by operation of 
 law (NiooU V. Walworth, 4 Denio, 385) ; or there is a presumption of a recon- 
 veyance or surrender (Obert v. Bordine, 1 Spencer, 394; see ante, p. 253.) See 
 further. Revised Code of Virginia, 1849, p. 560; Hopkins v. Ward, 6 Munf 38. 
 And the grantee of a trustee may also bring ejectment, though the transfer to him 
 
PKOPEKTIES OF THE ESTATE OF TRUSTEES. 387 
 
 Therefore, in an ejectment for the recovery of land, a demise must 
 be laid in the name of the trustee, in whom the legal estate is out- 
 standing, or the plaintiff will fail in the action. (m) And so in the 
 case of a bond, or covenant, or other contract, the obligee, or cove- 
 nantee, or other person with whom the engagement was originally- 
 made, is in general the only person who can sue and recover upon 
 
 (u) Goodtitle V. Jones. 7 T. R. 47. 
 
 was in breach of trust. Canoy v. Troutman, 7 Ired. 155; Taylor v. King, 6 Munf. 
 358; Reese v. Allen, 5 Gilm. 241. In Pennsylvania, however, ejectment is an 
 equitable action, and may, therefore, be maintained either by the cestui que trust, 
 when entitled to possession, Kennedy v. Fury, 1 Dall. 72 ; Presbyt. Congr. v. 
 Johnston, 1 W. & S. 56; School Dir. v. Dunkelsburger, 6 Barr, 29, or by the 
 trustee, Hunt v. Crawford, 3 Pa. R. 426. The trustee may bring trespass qu. d.fr., 
 Walker v. Fawcett, 7 Ired. 44, as may the cestui que trust, if in actual posses- 
 sion. Cox V. Walker, 26 Maine, 504; but it has been held that merely nomi- 
 nal trustees, as those of an incorporated town, cannot sue for a trespass on the 
 streets thereof. Conner v. New Albany, 1 Blackf. 88. A trustee must sue also 
 in trespass for injuries to personal property. McRaeny v. Johnson, 2 Florid. 
 Rep. 520. So of trover, Hower v. Geesaman, 17 S. & R. 251; Guphill v. Isbell, 
 1 Bail. 230; Cobson v. Blenton, 3 Hayw. 152; Thompson v. Ford, 7 Ired. 418; 
 Poage V. Bell, 8 Leigh, 604; Schley «. Lyons, 6 Geo. 530; though in the posses- 
 sion of the cestui que trust, Wynn v. Lee, 5 Geo. 236; see Jones v. Cole, 2 Bail. 33 ; 
 of detinue. Chambers d. Maudlin, 4 Alab. 477; Baker v. Washington, 5 Stew. & 
 Port. 142; Parsons iJ. Boyd, 20 Alab. 112; Stoner u. Yealy, 11 Alab. 327; Jones 
 V. Strong, 6 Ired. 369; Murphy v. Moore, 4 Ired. Eq. 118; Newman v. Montgo- 
 mery, 5 How. Miss. 742; and of replevin. Daniel v. Daniel, 6"p. Monr. 230. 
 The action in all these cases would lie equally against the cestui que trust (Beach 
 V. Beach, 14 'Verm. 28), who is not permitted at law to deny the title of the 
 trustee. White v. Albertson, 3 Dev. 241 ; as against a stranger. Though it is a 
 general rule, the action of assumpsit being equitable in its nature, that on a pro- 
 mise made to one for the benefit of another, the latter must sue ; yet this is only 
 where the sole and exclusive interest is in him; in other cases the trustee must 
 bring the action. Treat v. Stanton, 14 Conn. 445. As only the original parties 
 to a contract can sue, substituted trustees must use the names of their prede- 
 cessors. Davant v. Guerard, 1 Spear, 242; Ingersolli;. Cooper, 5 Blackf. 426; see 
 Binney v. Plumly, 5 Verm. 500. A tender must be made to the trustee. Cha- 
 hoon V. Hollaback, 16 S. & R. 425. But notice to a trustee before his appoint- 
 ment will not affect his cestui que trust. Lessee of Henry v. Morgan, 2 Binn. 497. 
 A cestui que trust of personalty cannot interpose a claim, under the Alabama sta- 
 tute, to try the right of property. King v. Hill, 20 Alab. 133. Trustees must sue 
 jointly at law. BrinckerhofFu. Wemple, 1 Wend. 470; see post, 309, and notes. 
 On an appeal from a decision in favor of the cestui que trust, it is the duty of the 
 trustee to sustain the decision in the appellate court Wood v. Burnham, 6 Paige, 
 513. 
 
 In New York, notwithstanding the alteration introduced in that State by the 
 new Code of Procedure, it is nevertheless expressly provided, that an executor 
 or administrator, a trustee of an express trust, or person expressly authorized by 
 statute, may sue without joining with him the person for whose benefit the action 
 is prosecuted. Code of 1851, } 113. But in general, all actions must be now 
 commenced in the name of the party really interested. Id. J 111. The Civil Code 
 of Ohio of 1853, § 25, 27, contains similar provisions. 
 
388 or TUE INCIDENTS AND LEGAL 
 
 the contract at law.(a:) Moreover, in an action by a trustee, the de- 
 fendant cannot set-off an equal or greater debt due to him from the 
 cestui que trust, although at one time a contrary doctrine seems to 
 have prevailed.(t/) (1) Where the cestui que trust brings an action 
 at law in the name of his trustee, the trustee may apply to a court 
 of equity to compel him to give security for costs.(2) 
 
 The legal act of presentation to a benefice must be exercised by 
 the trustee, in whom the legal interest in an advowson is vested. But 
 unless by the express terms of the trust the trustee is empowered 
 to nominate, as well as present, he will be bound to present the no- 
 minee of the beneficial owner, (a) even though the latter be an infant 
 only six months old. (J) 
 
 And so the trustee of a manor has the legal right of appointing 
 the steward ; and if the cestui que trust, by reason of infancy, or other 
 legal incapacity, be incompetent to nominate, and the trustee has 
 exercised his own discretion in making the appointment, the court 
 will not set aside this appointment in favor of a steward appointed 
 by the testamentary guardian of the infant cestui que trust, unless 
 there has been some improper conduct on the part of the trustee, or 
 unless some advantage is to be derived from the change. However, 
 P^_ j,-,it seems that in such a case the trustee ought to *attend to 
 *■ the wishes of the guardian, or even of the infant cestui que 
 
 trust, in making the appointment, (c) 
 
 (a;) Wake v. Tinkler, 16 East, 36. Insurance Co. v. Smith, 11 Penn. St. R. 
 
 {y) Tucker v. Tucker, 4 B. & Ad. 120.] 
 745; overruling Bottomley v. Brooke, (a) Barrett ■!>. Glubb, 2 Bl. 1052: Ar- 
 and Rudge v. Birch, cited 1 T. R. 621, thington v. Coverley, 2 Eq. Abr. 518; 
 2. [Campbell v. Hamilton, 3 Wash. Boteler v. Allington, 2 Atk. 458 ; Earl 
 C. C. R. 93 ; Beale v. Coon, 2 Watts, of Albemarle v. Rogers, 2 Ves. Jun. 
 183; Porter v. Morris, 2 Harr. 509; 477; 3 Cruis. Dig. Tit. 21, ch. 1, s. 6; 
 Woolf -u. Bate, 9 B. Monr. 211; see Att.-Gen. v. Forster, 10 Ves. 335, 8; 
 Wells V. Chapman, 4 Sandf. Ch. 312.] Att.-Gen. v. Newcombe, 14 Ves. 1, 7. 
 
 (z) Annesley v. Simeon, 4 Mad. 390. (b) Arthington v. Coverley, 2 Eq. Ab. 
 [See Roden v. Murphy, 10 Alab. 804; 518. 
 
 (c) Mott V. Buxton, 7 Ves. 201. 
 
 (1) If a trustee, being the nominal plaintiflF, fraudulently relesise an action at 
 law without the consent of the party beneficially interested, the court will, on 
 motion, set aside a plea of the release, and will order the release to be cancelled. 
 Leagb v. Leagh, 1 B. & P. 447 ; Baberman v. Radenius, 7 T. R. 670, 6; Payne u. 
 Rogers, Dougl. 407 ; Hickey v. Burt, 7 Taunt. 48; Anon., 1 Salk. 260; Manning 
 V. Cox, 7 Moore, 617; Barker v. Richardson, 1 Y. & J. 362, Chitt. Contr. 605. 
 [Kirkpatrick v. McDonald, 11 Penn. St. R. 387; Green v. Beatty, Coxe, 142; 
 Roden v. Murphy, 10 Alab. 804. So a trustee, in case of a mortgage, cannot 
 release the property before the debt is paid. Woolf v. Bate, 9 B. Monr. 210. 
 Where trustee refuses to become party to a suit at law, equity will interfere. 
 Robinson v. Maudlin, 11 Alab. 978. See also Chisleden v. Newton, 1 Alab. 371; 
 11 Johns. R. 47; Welch v. Mandeville, 1 Wheat. 233; McCuUum d. Coxe, 1 
 Dall. 139; Parker v. Kelly, 10 Sm. & M. 184; Blin v. Pierce, 20 Vermont, 25.] 
 
PEOPERTIES OP THE ESTATE OF TRUSTEES. 389 
 
 A person claiming as heir-at-law of a bare trustee, who had been 
 found by inquisition to have died without heirs, has not sufficient 
 interest to enable him to traverse the inquisition. ((i) 
 
 In case of the bankruptcy of any person indebted to the trust 
 estate, the trustee must prove the debt, for he is in general the party 
 to receive the dividends. However, the aestui que trust, if not under 
 disability, should join in the proof.(e) And so in the case of an as- 
 signment of a bond or other chose in action, although the court of 
 bankruptcy recognises the equitable title of the assignee, and admits 
 him to prove for the amount, it requires that the original obligee or 
 creditor, in whom the legal title is vested, should join with him in 
 the proof.(/) However, this subject will be further considered in a 
 future chapter. ((z) 
 
 The right to sign a bankrupt's certificate follows the right to 
 prove ;(A) and therefore a trustee may sign the certificate of a 
 bankrupt debtor to the estate : although one of several trustees can- 
 not do so, unless authorized by his colleagues. («') 
 
 It was said by Lord Northington, in the case of Burgess v. Wheate, 
 that the right of voting for coroners, sherifis, and members of parlia- 
 ment was annexed by the common law to the possession of the land ; 
 and where there was a transmutation of the possession to a trustee, 
 those rights could not be separated, retained, or suspended by the 
 creator of the trust ; but the legislature was obliged to interpose for 
 that purpose.(A;)' 
 
 (fZ) Re Saddler, 1 Mad, 581. (g) Vide post, Bankruptcy of Trus- 
 
 (e) Ex parte Green, 2 D. & Ch. 116; tees, p. 530. 
 Ex parte Dubis, 1 Cox, 310; Archb. (A) Re Lawrence, 1 M. & A. 453. 
 Bkrpl. Law, 155, 6. (i) Ex parte Rigby, 2 Rose, 224; 
 
 (/) Ex parte Dickenson, 2 D. & Ch. and S. C. 19 Ves. 463. 
 520; Archbold, Bkrpt. Law, 303, 308, (Jc) In Burgess ii. Wheate, 1 Ed. 251. 
 156. [See Lee v. Hutchinson, 1 Eng. L. & 
 
 Eq. 329.] 
 
 ' See the Contested Election Case in the appendix to 5 Ired. Equity Reports. 
 The 1st article of the amendments to the constitution of North Carolina, pro- 
 vided, that " all freemen (except free negroes, &o.) who have been inhabitants 
 of any one district within the state, twelve months immediately preceding the 
 day of election, and possessed of a freehold within the same district of fifty acres 
 of land, for six months next before and at the day of election, shall be entitled to 
 vote for a senator." In the case above mentioned, one entitled to at least fifty 
 acres of land in freehold, conveyed it by deed of bargain and sale to a trustee, to 
 secure debts to other persons, with a power to the trustee to sell the estate and 
 out of the proceeds to pay the debt. The Senate of the State subniitted to the 
 Supreme Court, questions as to the respective rights of the parties to vote at an 
 election. The court was of opinion, that under the circumstances neither grantor 
 trustee, nor cestui que trusts, had the right of voting. They held, however, that 
 when the trustee, or mortgagee, had been in possession, and taken the profits 
 for the requisite period, he would thereupon be entitled to exercise the franchise. 
 In the matter of Barber, 6 Wend. 509, it was held that a trustee of stock in ati 
 Insurance Company, was entitled to vote at an election for directors. 
 
390 OF THE INCIDENTS AND LEGAL 
 
 The first statute made with this view appears to be that of 8 Hen. 
 VI., which after fixing a freehold of the value of 40s. at the least 
 as the qualification of a voter for a member of parliament, concludes 
 by providing that he should be able to expend 40s. per annum. 
 
 But the statute 7 & 8 Will. III. c. 25, s. 7, expressly provides, 
 that no trustee or mortgagee shall be entitled to vote in an election 
 for a member of parliament by reason of the trust estate or mort- 
 gage, unless he be in actual possession or receipt of the rents and 
 profits; but that the mortgagor or cestui que trust in possession 
 shall vote for the same estate. 
 
 It is observable, that this enactment, by expressly doing away 
 with the claim of trustees to vote when out of possession, seems by 
 implication to give them the right of voting, when in possession of 
 the estate or of the income arising from it.(T) 
 
 However, the subsequent act of 10 Ann. c. 23, effectually obviated 
 any doubt on this point. For the 2d section of that statute enacts, 
 that no person shall vote in respect or in right of any lands, &c., for 
 which he shall not have received, or be entitled to have received, the 
 rents and profits to Ms own use. And the 18 Geo. II. c. 18, s. 5, 
 also required as the qualification for a voter the possession of the 
 r*o'7fii P^'op^rty to his own use. *And the words " to your own 
 L -• use," were inserted in the form of the oath to be taken by 
 the freeholders. 
 
 These enactments appear to have entirely excluded the claim of 
 trustees to vote in respect of the trust estate in any case. But the 
 late Keform Act (2 Will. IV. c. 45, s. 23) re-enacts the provisions 
 of the 7th section of 7 & 8 Will. III. c. 25, declaring that trustees 
 or mortgagees shall not be allowed to have any vote for the trust 
 estate, or mortgage, unless they be in actual possession ot receipt of 
 the rents and profits ; without adding the words " to their own use," 
 which were introduced into the acts of 10 Ann. and 1& Geo. 11. ; 
 and this, if it had not subsequently been explained and qualified, 
 might probably have restored the implication, that trustees in actual 
 possession were to be entitled to vote. However, the 26th section of 
 the same act provides, that notwithstanding anything thereinbefore 
 contained, no person shall be entitled to vote unless duly registered, 
 as thereinafter provided ; and that no person shall be registered in 
 respect of his estate or interest in any lands, &c., unless he shall 
 have been in the actual possession thereof, or in the receipt of the 
 rents and profits thereof, "for his own use" for the period specified 
 jn the act. 
 
 Therefore the provisions of the 26th section appear completely to 
 negative the right of a trustee to ■ exercise the elective franchise, 
 
 (?) Roger's Law of Elections, 126. 
 
PROPERTIES OF THE ESTATE OP TRUSTEES. 391 
 
 although he may be in actual possession of the trust estate, and not- 
 withstanding any implication arising from the 23d section. And 
 this opinion seems to be supported not only by the sound principles 
 of construction, as applicable to the act, but also by considerations 
 of the general object and nature of the elective franchise. It is to 
 be remarked, however, that the construction contended for has not 
 been universally adopted, and the point in question has repeatedly 
 been agitated with conflicting results before the several revising 
 barristers. 
 
 The rule is of course different, where the trustee has a beneficial 
 interest in the trust estate to the amount in value fixed by the act 
 as the minimum of qualification according to the nature of the pro- 
 perty : for in that case his right of voting would be unquestionable. 
 
 In like manner the privilege of voting on the election of a coroner, 
 which at common law was attached to the possession of the legal 
 freehold, (m) has been transferred by the statute 58 Geo. III. c. 95, 
 s. 2, to the beneficial owner. 
 
 And wherever a certain property qualification has been fixed by 
 the legislature" as necessary to the holding of an office, or the enjoy- 
 ment of certain privileges; as in the case of members of parliament ;(w) 
 or justices of the peace ;(o) or other similar offices ; or (previously to 
 the alteration of the game laws by the 'recent statute), (^) with re- 
 spect to the right of shooting game ;(§') in all these cases though a 
 beneficial enjoyment of the property, on. which the qualification is 
 rested, may not in terms be expressly required, yet there can be no 
 doubt, but that the equitable ^construction of the statute 
 would exclude the claim of the trustee, and support that of ^ -' 
 the party beneficially entitled. 
 
 A mere trustee, in whom the equity of redemption of a mortgaged 
 estate had been vested for a particular purpose, which has been satis- 
 fied (as for the payment of debts, which had long since been dis- 
 charged), has not a sufficient interest in the estate to entitle him to 
 redeem the mortgage.(»')' 
 
 A mere dry trustee, who is made a party defendant to a suit in 
 
 (m) Burgess D. Wheate, 1 Ed. 251. (o) 5 Geo. II. c. 18; 18 Geo. II. o. 
 
 (n) 1 & 2 Vict. c. 48, s. 2, which ex- 20. 
 
 pressly requires that the property giv- (p) 1 & 2 Will. IV. c. 32, s. 6. 
 
 ing the qualification, shall belong to (g) 22 & 23 Car. II. o. 25; 5 Ann. c. 
 
 the party "for his own use and 14; 9 Ann. c. 25; 13 Geo. III. c. 80; 
 
 benefit." 58 Geo. III. c. 75. 
 
 (r) James v. Biou, 2 S. & St. 600. 
 
 ' The general rule, however, is otherwise ; Upham v. Brooke, 2 Story, 629 ; 
 Dexter 1^. Arnold^ 1 Sumn. Ill; Grant «. Duane, 9 Johns. R. 591. See Kellogg w. 
 Conner, 10 Paige, 311. 
 
392 INCIDENTS TO THE ESTATE OF TRUSTEES. 
 
 respect of the legal estate vested in him, is in equity a competent 
 witness for the cestui que trust.{s) And a trustee differs in that re- 
 spect from an executor or administrator, whose evidence cannot be 
 received in a suit respecting the estate. (^). Indeed at law the testi- 
 mony of a mere trustee is inadmissible.(M)' 
 
 But if there be any charge against the trustee, which he has an 
 interest in rebutting, or any pecuniary liability (however small), 
 which depends upon the result of the suit, the evidence of the 
 trustee cannot be received even in equity, and for the same reason 
 that of his wife will be equally inadmissible. (a;) 
 
 As a general rule a trustee, whether he be sole trustee or jointly 
 with others, cannot be the receiver of the trust estate with a salary : 
 and a special case must be made to warrant such an appointment in 
 opposition to the general rule.(y) 
 
 A trustee of a ship has an insurable interest in it, in respect of 
 the legal property vested in him ; although it seems that the title of 
 the cestui que trust will also be recognised at law, for the purpose of 
 supporting an insurance effected by him.(s) 
 
 («) Croft V. Pike, 3 P. Wms. 182; 126. See Smith v. Duke of Chandos, 
 
 Mann v. Ward, 2 Atk. 229; Fotherby Barn. 416. [Wilson v. Wilson, 1 Des- 
 
 V. Pate, 3 Alk. 604. But it seems that saus. 230. 
 
 a trustee plaiutifT cannot be a witness, (y) Anon. 3Ves. 515; ■y.Tollandy 
 
 V. Fitzgerald, 9 Mod. 330; Phillips 8 Ves. 72 ; Sykes v. Hastings, 11 Ves. 
 
 V. Duke of Bucks, 1 Vern. 230. 363; Sutton v. Jones, 15 Ves. 584; bat 
 
 (<) Goss V. Tracy, 1 P. Wms. 290; see Tait d. Jenkins, 1 N. C.C. 492; vide 
 
 Croft V. Pike, 3 P. Wms. 182; Fotherby post, Disabilities of Trustees, p. 535. 
 
 V. Pate, 3 Atk. 604. (z) Ex parte Yallop, 15 Ves. 67. [1 
 
 (u) Mann v. Ward, 2 Atk. 229. Phillips Ins. 107. See Swift v. Mu- 
 
 (a:) Frank v. Mainwaring, 2 Beav. tual Ins. Co., 18 Verm. 305, and note.] 
 
 'In equity, a trustee may in general be a witness; Newtpn i). Demarritt, 1 
 Green, Ch. 321; Harvey v. Alexander, 1 Band. 219; Taylor v. Moore, 2 Rand. 
 563; Trustees of Watertown i/. Cowen, 4 Paige, 510; Hawkins v. Hawkins, 2 
 Car. Law Rep. 627. See Hodges v. Mullikin, 1 Bland, 503. This rule has been 
 adopted at law in Pennsylvania. Drum v. Simpson, 6 Binn. 481 ; King v. Cloud, 
 7 Barr, 467 ; Keim v. Taylor, 11 Penn. St. R. 163. See in other states in suits 
 at law, 4 Phillipps' Ev. by Cowen & Hill, 1529 ; Johnson v. Cunningham, 1 Alab. 
 249 ; Brumby v. Langdon, 10 Alab. 747. 
 
DISPOSITION OF THE ESTATE OF TRUSTEES. 393 
 
 *CHAPTERIV. [*278] 
 
 OF THE DISPOSITION OF THEIR ESTATE BY TRUSTEES. 
 
 I.-Where the Disposition is II.-Where it is made by Will 
 MADE BY Deed, or Act [283]. 
 
 INTER VIVOS [278]. III.-Where by Trustees under 
 
 Disability [287]. 
 
 I.— OF THE DISPOSITION BY TRUSTEES OF THEIR ESTATE BY DEED, OR 
 
 ACT INTER VIVOS. 
 
 Where the legal interest in real or personal estate is vested in 
 trustees, they are entitled at law to the exercise of all the powers of 
 disposition incident to the legal ownership.' In equity their legal 
 powers are regarded as under the control and subservient to the in- 
 terest of the cestui que trust, according to whose direction only it is 
 in general their duty to convey or dispose of the trust estate. The 
 present question is altogether distinct from a conveyance or disposi- 
 tion by a trustee made under a power conferred upon him by the in- 
 strument creating the trust. The consideration of this last question 
 will be reserved more conveniently for a future chapter.(a) 
 
 Where the persons entitled to the whole beneficial interest are in esse 
 and sui juris, it is one of the first duties of a trustee to execute such 
 conveyances of the legal estate, as the cestui que trusts shall direct.(&) 
 Therefore, if a mere dry trustee without reason refuse to convey, 
 when required by the person who is clearly entitled to the equitable 
 interest, and a bill is filed to compel a conveyance, the decree will be 
 made against the trustee, with costs, (c) And where the refusal pro- 
 ceeds from any improper motive — as, for the purpose of extorting a 
 sum of money as the price of compliance — that will be an additional 
 inducement for the court to visit the trustee with the costs of the 
 suit, as a penalty for his misconduct.((i) 
 
 However, although the title of the cestui que trust to require a 
 conveyance from the trustee be quite clear in the opinion of the 
 
 (o) Post, Powers of Sale, p. 471. Kingdom, 1 Coll. 184; Penfold i). Bouch, 
 
 (6) 1 Cruis. Dig. Tit. 12 ch. 4, s. 6; [4 Hare, 271.] Vide post, Costs. 
 
 Boteier v. AUington, 1 Bro. C. C. 73. (d) Watts v. Turner, 1 R. & M. 634; 
 
 (c) Willis V. Hiscox, 4 M. & Cr. 197 ; vide post, Costs, p. 551. 
 
 Jones u. Lewis, 1 Cox, 199; Lyse v. 
 
 ' The trustees may convey the mere legal estate, without the consent of the 
 cestui que trust, or in breach of trust. Canoy v. Troutman, 7 Ired. 155; Short v. 
 Unangst, 3 W. & S, 55. 
 
394 OF THE DISPOSITION OF THE 
 
 court, yet if the trustee in refusing, act bona fide, and under the ad- 
 vice of his counsel, he -vvill not be charged with the costs of the suit; 
 but neither on the other hand will his costs be given him, but no order 
 will be made respecting the costs. («) 
 
 In a late case before Lord Langdale, M. R., where a trustee of a 
 *term, acting under the advice of counsel, refused to assign 
 •- -• the term without the concurrence of certain parties; the 
 trustee was allowed his costs as between solicitor and client, which 
 were decreed to be paid to him by the plaintiff, although the court 
 disallowed the objection, and decreed an assignment of the term ac- 
 cording to the prayer of the bill.(/) 
 
 If the title of the cestui que trust be at all doubtful, and the trustee 
 under the advice of counsel refuses to sign, although at the hearing 
 the court decides in favor of the title and decrees an assignment, yet 
 it will give the trustee his costs of the suit, to be taxed as usual as 
 between solicitor and client. (^) However, where the plaintiff 's title, 
 though not capable of absolute proof, is clear beyond all reasonable 
 doubt, the decree will be made against the recusant trustee, with 
 costs. (A) 
 
 The cestui que trust must have an immediate and absolute equi- 
 table interest in the trust estate ; otherwise he will not be entitled to 
 require a conveyance of the legal estate from the trustee." Thus, if 
 an estate is vested in trustees, in the first place to pay several annui- 
 ties, the party beneficially entitled subject to those annuities, cannot 
 during their continuance compel the trustees to convey to him, unless 
 the annuitants give their consent.(«) 
 
 Where the beneficial interest in an estate is limited to a party for 
 life with remainders over, it is doubtful whether the tenant for life 
 could in any cage compel the trustee to convey the legal estate to 
 himself or his assignee. If there be any contingent remainders to 
 be supported, or any duty or trust remain to be performed for the 
 benefit of the remainder-men, and the continuance of the legal estate 
 
 (e) Knight iJ. Martin, 1 R. & M. 70; son v. Ellison, 3 Russ. 593, 6; Whit- 
 
 Angier v. Stannard, 3 M. & K. 566; marsh v. Robertson, 1 N. C. C. 715; 
 
 vide, post, Costs, p. 551. and see post, Chapter " Costs,'' p. 551. 
 
 (/) Poole V. Pass, 1 Beav. 600. See Qi) Lyse v. Kingdom, 1 Coll. 184. 
 
 Campbell v. Home, 1 N. C. C. 664. (i) Carteret v. Carteret, 2 P. Wms. 
 
 {g) Poole V. Pass, 1 Beav. 600; see 134. 
 Holford V. Phipps, 3 Beav. 434 ; Good- 
 
 ' As to femes covertes, see Thompson v. McDonald, 2 Dev. & Batt. Eq. 477 ; 
 Martin v. Poague, 4 B. Monr. 524. In Battle v. Petway, 5 Ired. R. 576, where 
 by will property was conveyed to A. in trust for the use of B., and that he should 
 pay over to him annually the net income accruing therefrom ; but if B. should 
 die without lawful issue, then to be held for others : held, that B. could not 
 compel A. to convey to him the legal estate. 
 
ESTATE OF TRUSTEES BY DEED. 395 
 
 in the trustees be requisite for these purposes, it would clearly be a 
 breach of trust in them to devest themselves of it at the request of 
 the tftiant for life:(i) and an equitable tenant for life of settled pro- 
 perty, can rarely take such an unqualified beneficial interest, as will 
 not be obnoxious to some objection of this nature. If the trust pro- 
 perty consist of money or stock in the funds, the security and pro- 
 tection of the estates in remainder, obviously requires^ the trustees 
 not to part with the possession to the tenant for life. 
 
 However, where the cestui que trust has an estate tail, he may call 
 on the trustee to convey the legal estate to him ; and no one can 
 afterwards prevent him from barring the entail. But the trustee 
 ought not to convey to him the fee simple, where he is entitled only 
 in tail.(Z) 
 
 Where the parties in whom the absolute beneficial interest in the 
 property was vested have disposed of the whole of their equitable 
 estate to a purchaser, the purchaser is entitled to require a convey- 
 ance of the legal estate from the trustees, without the concurrence 
 of the vendors (the previous cestui que trusts).{m) Although it is 
 otherwise where a^artonly of the equitable estate has been disposed 
 of by the cestui que trusts.(n) 
 
 *Where the equitable estate has been resettled by the cestui 
 que trusts, the trustees of the new settlement are entitled to ' 
 have a conveyance from the old trustees, (o) And if the purposes of 
 the new settlement require that the dominion over the entire legal 
 fee should be vested in the new trustees, as where the trust is for 
 sale,(p) or to pay annuities, and make an allotment or division of the 
 estate among the testator's children, (g') it has been decided, that the 
 trustee of the resettlement is entitled to require a conveyance of the 
 legal estate from the old trustee, without the concurrence of the 
 parties beneficially interested, (r) 
 
 But if the old trustee be required to do any act beyond the exe- 
 cution of a simple conveyance ; or if the nature of the trusts reposed 
 in the new trustee do not require that he should be clothed with the 
 legal estate, it seems, that the old trustee would be justified in de- 
 clining to devest himself of the legal estate, unless the persons bene- 
 ficially interested be joined as parties to the deed, in order to testify 
 
 (k) See Tidd v. Lister, 5 Mad. 429. (m) Goodson v. Ellison, 3 Rnss. 583 ; 
 
 [Battle V. Petway, 5 Ired. 676 ; Thomp- see Holford v. Phipps, 3 Beav. 434. 
 
 son V. McDonald, 2 Dev. & Batt. Eq. (n) 3 Rass. 593, 4. 
 
 478.] (o) Penfold v. Bouch, [4 Hare, 271.] 
 
 (l) Carteret v. Carteret, 2 P. Wms. (p) Angier v. Stannard, 3 M. & K. 
 
 134; Boteler 1J. AUinglon, 1 Bro. C. C. 566. 
 
 73; 1 Cruis. Dig. Tit. 12, ch. 4, s. 9; (g) Poole v. Pass, 1 Beav. 600. 
 
 see Pearson v. Lane, 17 Ves. 105, 6. (r) Angier v. Stannard, 3 M. & K. 
 
 566; Poole v. Pass, 1 Beav. 600. 
 
 [*280] 
 
396 OP THE DISPOSITION OF THE 
 
 their concurrence in the transaction ; and for this purpose it is of 
 course requisite, that they should he sui juris.{s) 
 
 The title of the purchaser or assignee of the equitable estate must 
 be established beyond doubt, or the trustees will be justified in re- 
 fusing to transfer the legal estate without the concurrence of the ori- 
 ginal cestui que trusts, or the sanction of the court.. Therefore, in 
 a case in which the legal fee had been vested in trustees in the year 
 1767, and there had been since a frequent and intricate devolution 
 of the title to the equitable estate. Lord Eldon observed that it 
 would be a matter of consideration, whether the trustees, on being 
 required to convey the legal estate to a purchaser of the equitable 
 interest, would not have a right to have the title examined by the 
 court, instead of being required to acquiesce in an opinion which was 
 not clothed with the sanction of judicial authority. And his Lord- 
 ship subsequently decided that the trustees in that case had a right 
 to have the conveyance settled in the Master's office.(() 
 
 It was also laid down by the same eminent Judge in the same case, 
 that a trustee cannot be compelled to convey the legal estate in part 
 of the trust property to a person, who has purchased that portion 
 from the cestui que trust. His Lordship there said, that " it was 
 quite new to him to be informed, that you can call on a trustee from 
 time to time to devest himself of different parcels of the trust estate, 
 so as to involve himself as a party to conveyances to twenty different 
 persons. Has not a trustee a right to say, If you mean to devest me 
 of my trust, devest me of it altogether, and then make your convey- 
 ances as you think proper V'(u) 
 
 So, it is settled, that a trustee can be called upon to convey only 
 by the words and descriptions by which the conveyance was made 
 to him. In this respect he is like a mortgagee. (a;) 
 
 As long as any of the original trusts remain to be performed, it is 
 *clear that the trustee cannot be required to devest himself of 
 '- -^ the legal estate ; for by so doing, he would unquestionably be 
 guilty of a breach of trust.(«/) Therefore, where the parties entitled 
 to the equitable estate call upon trustees to part with the legal estate 
 on the ground that the trusts have terminated, they are bound clearly 
 and satisfactorily to prove that fact to the trustees; and if that be 
 not done, the trustees will be justified in refusing to convey, except 
 under the direction of the court, (a) In case of the refusal by a 
 trustee to convey when duly required, the parties may apply to the 
 Court of Chancery, by petition under Sir B. Sugden's Act (1 Will. 
 
 (s) 3 M. & K. 571 ; 1 Beav. 604. {x) Per Lord Eldon, 3 Russ. 594. 
 
 0) Goodson V. Ellison, 3 Russ. 593, (y) Carteret v. Carleret, 2 P. WmB. 
 
 6; sed vide Lyse v. Kingdom, 1 Coll. 134. 
 
 184. (z) Holford v. Phipps; 3 Beav. 434; 
 
 («) 3 Russ. 594. S. C. 4 Beav. 475. 
 
ESTATE OF TRUSTEES BY DEED. 397 
 
 IV. c. 60), for the appointment of a person to convey in place of the 
 trustee.(a) But where the application is made by a purchaser of the 
 equitable estate, the trustee who refuses will not necessarily be fixed 
 with the costs of the petition.(6) 
 
 Where the conveyance by the trustees is made under the direction 
 of the court, it will be referred to the Master to settle the form of 
 the instrument ; and the certificate of the Master's having settled a 
 conveyance under such a reference may be excepted to by any party 
 who is dissatisfied with it.(c) 
 
 If trustees receive notice of any disposition or incumbrance of the 
 equitable interest by the cestui que trust, they cannot afterwards 
 safely convey or transfer the legal estate to the cestui que trust him- 
 self, or any subsequent purchaser from him ; for in that case they 
 would be held personally responsible to the purchaser or incumbran- 
 cer, of whose title they had been made cognizant.(cZ) 
 
 A person, who conveys merely as trustee, can be required to enter 
 into no covenants for title, beyond the usual covenant that he has 
 done no act to incumber, (e)(1)' However, in a case where trustees of 
 
 (a) Warburton v. Vaughan, 4 Y. & C. C. 391 ; Dearie v. Hall, 3 Russ. 1, sec. 
 
 247; Prendergast D. Eyre, 1 LI. &G. 11; 12; For.steri;. Blackbume, 1 M. & K. 
 
 Robinson u. Wood, 5 Beav. 246. 297; Hodgson v. Hodgson, 2 Keen, 
 
 (6) Robinson v. Wood, 5 Beav. 246. 704; 1 Sugd. V. & P. 12, 520, 9th ed. ; 
 
 (c) Wakeman'u. Duchess of Rutland, Ex parte Knott, 11 Ves. 613. 
 
 3 Ves. 504 ; 2 Dan. Ch. Pr. 900. (c) 4 Cruis. Dig. Tit. 32, ch. 26, s. 
 
 (d) Baldwin v. Billingsley, 2 Vern. 87. 
 539; Cothay v. Sydenham, 2 Bro. C. 
 
 (1) It is now settled, that trustees need be under no scruples as to the pro- 
 priety of conveying by the word "grant." This term was at one time frequently 
 objected to, as implying a warranty of the title ; and it is omitted in many oT the 
 forms used by conveyancers. However, this apprehension is altogether un- 
 founded, and there is no doubt but that this word would have no such effect, 
 and even if it had, any express covenant on the part of the grantor would restrain 
 its general effect. On the other hand, Mr. Butler in an elaborate note in his 
 edition of Coke upon Lyttleton, has endeavored to show, that in some cases a 
 purchaser ought not to dispense with the use of the term "grant" in a convey- 
 ance from a trustee. Co. Litt. 384 a, n. 1 ; 4 Cruis. Dig, tit. 32, ch. 25, s. 19. 
 The recent act, 7 & 8 Vict. c. 76, s. 6, does away with any peculiar effect of the 
 word "grant" in a conveyance, by enacting, that that word shall not have the 
 effect of creating any warranty or right of re-entry, or of creating any covenant 
 by implication. [See Rawle on Covenants for Title, 403, n.] 
 
 ' Ennis v. Leach, 1 Ired. Eq. 416; Hoare d. Harris, 11 Illinois, 24; Grantland 
 
 V. Wright, 5 Munford, 295; see Sumner v. Williams, 8 Mass. 162. But where 
 the trustee has declared at the sale, that a good title could be made, he 
 must procure such title, before he can enforce payment of the purchase- 
 money. Ennis v. Leech, ut sup. And if the trustee enters into covenants of 
 greater scope than the law requires, he is nevertheless personally bound, 
 Sumner v. Williams, ut supr. ; Duval v. Craig, 2 Wheat. 56. Thus executors 
 with a power of sale are personally liable on a covenant that " they, ex- 
 
398 OF THE DISPOSITION OF THE 
 
 a charity estate had granted a lease for ninety-nine years, which was 
 set aside as improper, and the trustees had entered into personal 
 covenants with the lessee for quiet enjoyment ; the court decreed 
 the instrument to be cancelled in toto, and would not suflfer the per- 
 sonal covenants of the trustees to remain in force for the benefit of 
 the lessee. (/) 
 
 In a late case, the trustees of real estate joined with their cestui 
 r*2821 ^'"'^ trust *in a contract of sale, and personally agreed to 
 exonerate the estate sold from any incumbrances. There 
 turned out to be considerable incumbrances, and it did not appear, 
 whether the purchase-money would be sufiScient to discharge them. 
 The court refused to enforce a specific performance of the agreement 
 against the trustees, so as to compel them to exonerate the estate, 
 but left the purchaser to his remedy by action for damages. (^) 
 
 Although trustees have the same power of disposing of the trust 
 estate at law, as if they were the beneficial owners, yet, as has been 
 already stated, a conveyance by a trustee without consideration, will 
 not prejudice the title of the cestui que trust ; but the volunteer will 
 in equity be treated as a trustee for his benefit. (A) And so if the 
 person taking from the trustee be a purchaser for valuable considera- 
 tion, yet if he purchased with notice of the trust, his conscience will 
 be afi'ected with the same equity as the trustee, from whom he pur- 
 chased. («) 
 
 (/) Atty.-Gen. v. Morgan, 2 Euss. (t) Mead d. Lord Orrery, 3 Atk. 238; 
 
 306. Earl Brook v. Bulkely, 2 Ves. 498; 
 
 (§■) Wedgewood v. Adams, 6 Beav. Taylor v. Stibbert, 2 Ves. jun. 437; 
 
 600. Adair v. Shaw, 1 Sch. & Lef. 262; 
 
 {h) 1 Cruis. Dig. Tit. 12, ch. 4, s. Croften d. Ormsby, 2 Sch. & Lef. 583; 
 
 16; ante, p. 172. ante, p. 164. 
 
 ecutors, &c., do for ever warrant and defend, &c." Godley v. Taylor, 3 Deve- 
 reux, 178. In Worley v. Frampton, 5 Hare, 560, a copyholder had agreed to 
 demise a tenement within the manor for sixty-three years, on a building lease, 
 and as the custom did not allow a lease to be made for more than twenty-one 
 years, the copyholder agreed to execute a lease for twenty-one years with a 
 covenant for himself, his heirs, and assigns,to renew the lease for a further term 
 of twenty-one years, at the expiration of the first, and for a further term of 
 twenty-one years at the expiration of the second term. The copyholders died 
 before execution of the lease, having devised the premises to a trustee. It was 
 held, by Sir J. Wigrara, V. Ch., in a bill for specific performance on the part of 
 the lessee, that the trustee having no beneficial interest in the estate, was not 
 bound in the lease for twenty-one years, to enter into any covenant for the re- 
 newal of the lease at the expiration of that term, and that he could only be re- 
 quired to covenant against his own acts. Whether, if it had been the trustee 
 who had applied for specific performance, he would not then have been obliged 
 to have entered into the covenant, was not decided. See Page v. Brown, 3 Beav. 
 36; and see the cases on this subject, collected and discussed in Mr. Eawles 
 valuable treatise on Covenants for Title, page 419. 
 
ESTATE 01' TRUSTEES BY DEED. 399 
 
 But if the trustee convey the legal estate to a purchaser for valu- 
 able consideration without notice of the trust, the title of the pur- 
 chaser will be good both at law and in equity ; for he has eo[ual 
 equity with the cestui que trust; and the legal estate, which was 
 vested in him by the conveyance from the trustee, of course will 
 prevail at law.(A;) This, however, is a subject which will be reserved 
 more conveniently for future consideration. (Z) 
 
 Where the disposition of the trust estate by the trustee to a third 
 party still remains in contract, the court will not enforce a specific 
 performance of the engagement, if it amount to a breach of trust, 
 or be made by mistake or for inadequate consideration ; nor will 
 any difference be made in this respect in favor of a hona fide pur- 
 chaser, (m) 
 
 It has already been seen, that an unauthorized disposition of the 
 trust estate to another person will not exonerate the trustee from 
 the responsibilities of the trust ;{n) but if the cestui que trust com- 
 mence any proceedings against the trustee, who has made such a 
 disposition, he must also make the person in whom the legal estate 
 has thus become vested, a party to those proceedings ; for the decree 
 in the first place will be against the party.(o) 
 
 By the usual railroad and canal acts, and other acts of that nature, 
 in case of the disability of the persona beneficially entitled, their 
 trustees are empowered to contract for, and sell, and convey, the 
 land, as effectually as the cestui que trusts could do. But in case of 
 their being called upon to exercise this power, the trustees are of 
 course bound to re-invest the money received in the repurchase of 
 land to be held upon the same trust. As such statutory authorities 
 are governed in every case by the provisions of the particular 
 enactment by which they are created, it is impossible to consider their 
 effect with reference to any general principle of law. 
 
 *II.— OP THE DISPbsiTION OF THE ESTATE OF TRUSTEES BY r*oQQn 
 
 WILL. L^^^^^J 
 
 As trustees have the power of disposing of the legal estate by deed 
 or act inter vivos, so they may also dispose of it by will, subject to the 
 rules and restrictions imposed by the law upon testamentary dis- 
 positions of real or personal estate. 
 
 (i) Millard's case, 2 Freem. 43; Richardson, 4 Beav. 174; Adams «. 
 
 Finch V. Earl of Winchelsea, 1 P. Wms. Broke, 1 N. C. C. 617; Thompson v. 
 
 278, 9; 1 Cruis. Digr Tit; 12, eh. 4, s. Blackstone, 6 Beav. 470; et vide post, 
 
 12. p. 509, and p. 477. 
 
 {t) Post, Pt. III. Div. I. Ch. Ill, p. 510. (n) Ante, p. 175; [Drane v. Gunter, 
 
 (m) Bridger v. Reid, 1 J. & W. 74; 19 Alab. 731.] 
 
 Ord V. Noel, 5 Mad: 438; Wood v. (o) Burt v. Dennett, 2 Bro. C. C. 225. 
 
400 OF THE DISPOSITION OF THE 
 
 It is now settled, though after some fluctuation of opinion, that a 
 general devise of real estate will pass estates vested in the testator 
 as trustee or mortgagee, unless a contrary intention can be collected 
 from the expressions of the ■will, or from the purposes or limitations 
 to Ivhich the devised lands are subjected. (p)(l)' 
 
 [p) Lord Braybroke v- Inskip, 8 Ves. Thacker, 12 Sim. 178; Doe d. Read v.. 
 
 417,432; 2 Jarm. Pow. Dev. 146 lo 157; Eeade, 8 T. R. 118; Hawkins t). Obeen, 
 
 « Cruis. Dig. Tit. 38, ch. 10, s. 140, 2; 2 Ves. 559; Ex parte Shaw, 8 Sim, 
 
 Co. Litt. 205, a. n. 1 (6th); Lindsell v. 159. 
 
 (1) From the observations of the Vice-Chancellor of England in the case of 
 Cooke V. Crawford, 13 Sim. 91, whichhasbeen very recently reported, the gene- 
 ral statement, as to the powers of trustees to dispose of the trust estate by will, 
 must be received with some qualification. Where a mere dry legal estate is vested 
 in the trustee, there can be no question as to his power to devise that estate. 
 Indeed it seems to be the duty of the trustee in some oases to make that devise, 
 and it might be considered an improper neglect in him to suffer the estate to de- 
 scend to an infant heir, and thus to occasion embarrassment and expense to the 
 cestui que trust in dealing with the property. See Midland Counties Railway 
 Company v. Westcombe, 1 1 Sim. 57. But where there is a subsisting active trust, 
 accompanied by discretionary powers and duties of management, it seems, that 
 a trustee will have no power to delegate the trust by will to a devisee ; and al- 
 though the devise, if sufficiently express, would unquestionably pass the legal 
 estate, yet the devisee would be incapable of exercising the powers conferred on 
 the trustee. In the case referred to, which has been already stated in a previous 
 page, his Honor expressed a strong opinion against the propriety of a trustee's 
 devising his estate, upon general principles, and added, that he saw no substan- 
 tial distinction between a delegation of the trust by act inter vivos and by a de- 
 vise. It has been already observed, in commenting upon this case, that his 
 Honor's observations were not required for the purposes of the decision, and the 
 question may therefore be still open to argument; but until the power of a trus- 
 tee to devise the trust has been actuall)' affirmed by a judicial determination, 
 no trustee could be advised to make such a disposition of the estate, nor could 
 the parties act under it with any security. Wherever the devise of a trust is im- 
 proper, within the principle above stated, a general devise would certainly not be 
 held to include the trust estate, for a breach of trust is never presumed. 
 
 [The case of Cooke v. Crawford, where there was a lirriitation to the surviving 
 trustee and his heirs, omitting the word assigns, and it was held not to authorize 
 a devise of the trust estate, has been recently very much discussed in England. 
 See 9 Jur. p. ii. 129, 181. In Titley v. Wolstenholme. 7 Beav. 425, Lord Langdale 
 considered the subject very carefully, and, though the question did not directly 
 arise in the case, as the word '' assigns" was added, he took occasion to ex- 
 
 ' Jackson v. Delancy, 13 John. R. 537; Heath v. Knapp, 4 Barr, 228; Hughes 
 V. Caldwell, 11 Leigh, 342; Ballard v. Cater, 5 Pick. 112; Taylor v. Benham, 5 
 How. U. S. 270. But where the purposes of the devise are inconsistent with the 
 trust, as where it is to sell and distribute the proceeds, it is otherwise, in the 
 case of a naked trustee. Merritt v. Farmers' Fire Ins. & Loan Co., 2 Edw. Ch. 
 547. A general power of disposal, however, given to the devisee, is not suf- 
 ficient to prevent trust estate passing; Heath v. Knapp, ut supra. In Pennsylva- 
 nia, a mortgage will pass by a bequest of " personal estate." Asay v. Hoover, 
 5 Barr. 35. 
 
ESTATE OF TRUSTEES BY WILL. 401 
 
 Thus, in an early case it was laid down, that if a man had but a 
 trust of lands in J)., it would pass by a devise of all his lands in D.{q) 
 And in another case Sir J. Jekyll, M. R., was of opinion, that the 
 estate of a surviving trustee for preserving contingent remainders, 
 passed by a devise of " all the rest of his real estate," to his wife and 
 
 (5) Sir Thomas Lyttleton's case, 2 Ventr. 351. 
 
 press a marked disapprobation ' of the doctrine of the foregoing cases, and 
 indicated very clearly the inconveniences which would ensue on its adoption. 
 He was also distinctly of opinion that there was no breach of trust in not per- 
 mitting the trust estate to descend. In Mortimer v. Ireland, 6 Hare, 196, a testa- 
 tor gave certain legacies, and appointed two persons his " executors and trustees," 
 without more. The survivor of these bequeathed the trust property to A., on the 
 trusts declared by the original testator, expressing at the same time his v^ish, 
 that A. would execute the trust with fidelity. There was no power of appoint- 
 ment of new trustees in the original will. On a bill filed by the cestui que trusts 
 for that purpose, it was held by the Vice-Chancellor, and his decree was affirmed 
 on appeal, that though A. was legally in possession of the trust property, yet he 
 could not claim to hold it as the trustee of the parties beneficially interested, 
 against their will ; and new trustees were accordingly appointed. So where a 
 testator devised estates to trustees, their heirs and assigns, on certain trusts, and 
 the surviving trustee devised the trust estates in the same trusts on which he held 
 the same, it was held, that the cestui que trusts of the original will, were entitled 
 to have new trustees appointed. Ockleston v. Heap, 1 De G. & Sm. 640. In 
 Beasley v. Wilkinson, 13 Jur. 649, the question presented itself broadly. That 
 was a devise, by a sole surviving trustee, of all estates which might be vested in 
 him at his decease, as trustee, and which he could devise without breach of trust, to 
 A. W., her heirs and assigns, upon the trusts affecting the same respectively, and 
 it was held, that the legal estate vested in the devisee. In Wilson v. Bennett, 
 20 L. J. (Ch.) 279 ; 5 Eng. L. & Eq. 45 ; and in Macdonald v. Walker, 14 Beav. 
 558 ; 1 1 Eng. L. & Eq. 324. the same point arose, as to the effect of a devise by 
 the survivors of trustees, to whom and " the survivor, his heirs, executors, or ad- 
 ministrators," a power of sale was given; and it was held, in each case, 
 that the title derived on a sale by the devisee, was too doubtful to force on a 
 purchaser. In the latter case, however, the Master of the Rolls seems very dis- 
 tinctly to disagree from the ruling in Cooke u. Crawford. This last case is also 
 reviewed and strongly disapproved in 2 Jarm. on Wills, 710. See also 1 Greenl. 
 Cruise, 376, note. On the whole, it may be doubted, whether the case would be 
 now followed as an authority in England. In a very recent case in England, 
 however, re Burtt's estate, 1 Drewry, 319, before V. Ch. Knight Bruce, there 
 was a bequest to A. and B., their executors and administrators, upon trust. B., 
 the surviving trustee, by his will, bequeathed his trust estates to C. and D., their 
 heirs, executors, administrators, and assigns, on the trusts ; and he appointed C. D. 
 and E., executors of his will. It was held, that C. and D. took only the legal 
 estate ; and that neither C. and D. themselves, nor C, D., and E., were capable of 
 executing the trusts. 
 
 In New York and Michigan, on the death of a trustee, the trust does not vest 
 in his representatives, but is to be exercised by the court. In Virginia, on the 
 contrary, the personal representative of a sole or surviving trustee, is to execute 
 the trust, unless the instrument otherwise directs, or another is appointed by the 
 court. See note, ante, page 190.] 
 
 26 
 
402 OP THE DISPOSITION OF THE 
 
 her heirs. (r) The subsequent case of Ex parte Sergison,(8) arose on 
 the will of a mortgagee in fee, and both Lord Alvanley and Lord 
 Rosslyn were of opinion that the legal estate passed to the devisee by 
 a general residuary gift of the testator's estate, " both real and per- 
 sonal and of what nature or kind soever, or wheresoever, not there- 
 inbefore specifically devised." However, from the circumstances of 
 the case this opinion was not there acted upon.(s) 
 
 So far the cases have been in favor of the trust estate passing by a 
 general devise, but in Strode v. Russell, (t) the Lord Chancellor, 
 together with the Master of the Rolls, and Trevor, L. C. J., and 
 Tracy, J., gave it as their unanimous opinion, that mortgages in fee, 
 though forfeited when *the will was made, did not pass by a 
 L -I general devise of "all lands, tenements, and hereditaments."(t) 
 And in Casborne v. Scarfe,(M) the same doctrine was laid down by 
 Lord Hardwicke.(M) 
 
 In these two cases the question was respecting estates vested in the 
 testator as mortgagee, and not as a mere trustee. But in Pickering v. 
 A'^owles,(a;) it was said by Lord Thurlow, that " if a man has estates 
 of his own, and also has pure trusts, and gives the residue by his will, 
 only his own estates will pass by the residuary clause. "(«) 
 
 This opinion of Lord Thurlow not being required for the decision 
 of the case was clearly extra-judicial ; but in Attorney-General v. 
 Buller,(«/) it was expressly decided by Lord Rosslyn, C, that a gene- 
 ral residuary gift of real and personal estate did not pass trust estates 
 vested in the testator, although the general words in the devise 
 were particularly ample, extending to every species of right and in- 
 terest belonging to the testator. And his Lordship, in the case under 
 consideration, appears to have assented to the general rule, as stated 
 at the bar, " that general words would not pass trust estates, unless 
 there appears to be an intention that they should pass." This rule, 
 it will be observed, is directly the converse of that which has been 
 stated as at present governing the construction on this subject. 
 
 The authority of this last case appears also to be supported by the 
 subsequent decision of Lord Eldon, in Ex parte Brettell,(z) where 
 a general and very ample residuary gift, of the testator's "estate 
 and effects whatsoever and wheresoever, and of what nature or kind 
 soever," to his natural son, Cr. S., his heirs, executors, &c., for his 
 and their own proper use and behoof, was held by that learned judge 
 not to pass an estate vested in the testator as trustee for a mort- 
 gagee in fee. 
 
 (r) Marlow v. Smith, 2 P. Wms. 198. (x) Pickering v. Vowles, 1 Bro. C. C. 
 
 (s) Ex parte Sergison, 4 Ves. 147. 198. 
 
 It) Strode v. Russell, 2 Vern. 625. {y) 5 Ves. 339. 
 
 (u) Casborne v. Scarfe, 1 Atk. 605. (z) 6 Ves. 577. 
 
ESTATE OF TRUSTEES BY WILL. 403 
 
 In this conflicting state of the authorities, the case of Lord Bray- 
 broke V. Inskip(a) arose, in which the doctrine, as stated at the be- 
 ginning of this section, was finally established by Lord Eldon, after a 
 careful review of all the cases on the subject, and the principles on 
 which they severally proceeded. In that case, the heir of a surviving 
 trustee devised all his real estates whatsoever and wheresoever unto 
 his wife, Gr. A., her heirs and assigns for ever. An objection was 
 taken to the title to the property on the ground, that the legal estate 
 did not pass by the devise to the wife, but descended to the co-heirs 
 at law of the trustee, two of whom were infants and the other a feme 
 coverte. The question came first before Sir William Grant, M. R., 
 who held that the legal estate did pass by the will to the devisee ; and 
 this decision was afterwards supported by Lord Eldon, who overruled 
 the objection to the title, and decreed a specific performance of the 
 contract by the defendant. 
 
 His Lordship in the course of his judgment remarked of the case 
 of Attorney- General v. Buller, that he did not know in experience 
 any case in which the proposition was laid down so strong ; and he 
 stated on a subsequent occasion, that Lord Rosslyn himself had al- 
 tered his opinion with respect to that case. (J) His Lordship also 
 observed, with reference to his own previous decision in Ex parte 
 Brettell, that, having been brought *on upon a petition, it p^oQr-i 
 had not perhaps been so attentively considered, as the impor- L J 
 tance of the point required ; although that decision was not intended 
 to infringe upon the general rule as stated above, inasmuch as it pro- 
 ceeded upon the circumstance of there being sufiicient on the face of 
 the will to show, that the testator's beneficial estate only was intended 
 to pass.(c) 
 
 Where there is a general devise of all the the testator's real estate, 
 it is clear that the circumstance of his being beneficially entitled to 
 other lands, on which the devise might operate, will not of itself pre- 
 vent his trust estates from passing, (ci) 
 
 But the operation of a general devise in passing trust estates may 
 be controlled by the intention of the testator. If there be no indi- 
 cation of a contrary intention the words will be sufi'ered to have their 
 legal operation, and the trust estates will pass. But if, either from 
 the expressions used by the testator, or from the way in which the 
 property is disposed of, it appears to have been his intention to dis- 
 pose only of the estates to which he was beneficially entitled, the 
 devise will not be suiFered to have any more extensive operation.(e) 
 
 (a) 8 Ves. 417. (e) Lord Braybroke v. Inskip, 8 Ves. 
 
 (6) Lord Braybroke v. Inskip, 8 "Ves. 436 ; Doe d. Reade v. Reade, 8 T. R. 
 435, 7. 118; Wall v. Bright, 1 J. & W. 498; 2 
 
 (c) 8 Ves. 437. Jarm. Pow. Dev. 146, et seq. 
 
 (d) Sir Thomas Lyttleton's case, 2 
 Ventr. 351 ; 2 Jarm. Pow. Dev. 147. 
 
404 OF THE DISPOSITION OP THE 
 
 Thus where the expressions of a gift, coupled with the relative 
 situation of the parties, show that the testator intended to give only 
 what the donee could enjoy beneficially — as in the case of a general 
 residuary gift to a natural son, his heirs, executors, &c., " to and 
 for his and their own proper use and behoof" — it has been decided, 
 that a mere trust estate will not pass.(/) 
 
 It is to be remarked, however, that Lord Eldon in Lord Braybroke 
 V. Inskip stated, that he did not mean in Ex parte Brettell to put 
 anything upon the expression, that it was given " to the use and 
 behoof" of the party.(^) And in a very recent case it was held by 
 Sir L. Shadwell, V. C, that a general gift by a testator, of all his 
 property whatsoever and wheresoever, to his wife, for her absolute me 
 for ever, passed an estate vested in the testator as a truBtee.(A) 
 
 On the same principle, where a general devise of real estates is for 
 purposes applicable only to the testator's absolute property, and in- 
 consistent with the beneficial title of another person, it will be held 
 not to operate upon mere trust estates.^ 
 
 This doctrine was established in an early case, where a general 
 devise by a testator of all his lands in M. and D., charged with a 
 rent-charge for life, was held not to pass lands vested in him as 
 mortgagee, (i) 
 
 And a general charge for the payment of debts has been repeatedly 
 held to have the same effect, in restricting the operation of a residu- 
 ary devise to the beneficial estate of the testator.(A) 
 
 So a devise of real estate, in trust to sell or release the same, has 
 been held to be inconsistent with the intention to dispose of any pro- 
 perty, *which was not vested in the testator for his own bene- 
 L -J fit.(Z) But on this point a material distinction has been 
 established between a mere dry trustee, and a trustee by construction 
 of equity. Thus where a testator had contracted to sell an estate, 
 and died before the conveyance was executed, having devised all his 
 real and personal estate to trustees, in trust to sell. Sir Thomas Plu- 
 mer, M. R., decided, that the devise passed the estate, which had 
 been contracted to be sold : on the ground that the beneficial in- 
 terest was not so entirely out of the testator, as to preclude the pos- 
 
 (/) Ex parte Brettell, 6 Ves. 577. Ves. 348; Doe d. Reade v. Eeade, 8 
 
 (g) 8 Ves. 434, 5. T. R. 1 18 ; Silvester v. Jarman, 10 Price, 
 
 (&) Lindsell v. Thacker, 12 Sim. 178. 78. 
 
 (i) Winn v. Lyttleton, 1 Vern. 4; (/) Ex parte Morgan, 10 Ves. 101; 
 
 Duke of Leeds v. Munday, 3 Ves. 348. Ex parte Marshall, 9 Sim. 555; Wall 
 
 [Rackham v. Siddall, 16 Sim. 297; 12 «. Bright, IJ. & W. 493. [Merritt v. 
 
 Jur. 640.] Loan Co. 2 Edw. Ch. 547.] 
 
 (i) Duke of Leeds v. Munday, 3 
 
 ' But a general power of disposal given to the devisee will not alter the rule. 
 Heath v. Knapp, 4 Barr, 228. 
 
ESTATE OF TRUSTEES BY WILL. 405 
 
 sibility of its becoming the subject of a sale by his trustees in any 
 event. (»w) 
 
 On the same principle, where the devised estates are limited by the 
 testator in strict settlement, or otherwise tied up by limitations, which 
 would be nugatory or improper, if applied to mere trust property, 
 the devise will not operate upon the testator's trust estates.(w) The 
 contrary decision of Lord Hardwicke in Ex parte Bowes(o) has 
 clearly been overruled by the subsequent cases.(p) 
 
 It has been decided, that a general devise to several persons as 
 tenants in common in fee, is not inconsistent with an intention to 
 dispose of the mortgage estates of the testator. (g') It might proba- 
 bly be a question, whether a similar disposition would pass trust 
 estates ; the argumentum ah inoonvenienti is certainly strongly 
 against suffering the number of trustees to be thus needlessly multi- 
 plied, even if a trustee possessed the power so to increase them.(r) 
 
 It seems, that a general devise conferring a less estate than a fee, 
 would not, on principle, be held to operate on a trust estate ; and Mr. 
 Jarman has suggested that it is thus possible to support the dictum 
 of Lord Hardwicke in Casborne v. Scarfe ;(s) for in that case the 
 devise would only have carried a life estate. (<) 
 
 It was held in a recent case by Lord Langdale, M. E.., that a 
 devise by a testator, of all the lands and hereditaments vested in him 
 as trustee or mortgagee in fee, passed the trust estates vested in him 
 for an estate pur autre vie as a trustee for preserving contingent re- 
 mainders, (m) 
 
 Previously to the recent Will Act, 1 Vict. c. 26, a general devise 
 of real estate would pass copyhold property vested in the testator as 
 trustee :(») but according to the principle established by Rose v. 
 Bartlett,(«/) a similar devise would not have operated upon lease- 
 holds for years, unless there were no other estate for the devise to 
 take effect upon ; or there were otherwise a clear intention on the 
 part of the testator, that they should pass.(2) But the 26th 
 sect, of that act provides for the point *in question with re- L -^ ' J 
 
 (m) Wall V. Bright, IJ. & W. 494. (t) 2 Jam. Power. Dev. 153, n. 
 
 (n) Atty.-Gen. v. Vigor, 8 Ves. 373 ; (u) Greenwood v. Wakeford, 1 Beav. 
 
 Thompson v. Grant, 4 Mad. 438 ; Gal- 576. 
 
 liers V. Moss, 9 B. & Cr. 267 ; re Hers- (z) 2 Jarra. Pow. Dev. 122, 4 ; see 
 
 fall, 1 M'Clel. & Y. 292 ; but see Mather Weigall v. Brome, 6 Sim. 99. 
 
 V. Thomas, 10 Bing. 44. {y) Cro. Car. 293. 
 
 (o) Cited 1 Atk. 605, Sand. n. (z) 2 Jarm. Pow. Dev. 127, et seq. 
 
 {p) 2 Jarm. Pow. Dev. 153. and sec. 154. The later cases on this 
 
 (5) Ex parte Whiteacre, Rolls. July, point, are Hobson v. Blackbume, 1 M. 
 
 1807; 1 Sand. Us. 285; 2 Jarm. Pow. & K. 511; Goodman 1;. Edwards, 2 M. 
 
 Dev. 152. & K. 759; Weigall v.- Brome, 6 Sim. 
 
 (r) Vide supra, p. 181. 99; Arkell v. Fletcher, 10 Sim. 299. 
 
 (s) 1 Atk. 605. 
 
406 • OF THE DISPOSITION OF THE 
 
 gard to wills made since the 1st of January, 1838, by enacting, that 
 a devise of the testator's land, or any other general devise which 
 would describe a customary copyhold or leasehold estate, shall be 
 construed to include such estates, as well as the freehold estates of 
 the testator, unless a contrary intention shall appear by the will. 
 
 Where there is a general or residuary devise of bequest of lease- 
 holds for years, or other personal estate held in trust, it is improbable 
 that any question would often be raised as to the title of the devisee 
 or legatee to the mere legal estate. This would vest primarily in the 
 executor or administrator cum testamento annexo, by virtue of his 
 appointment ; and it is not likely that the legatee would claim his 
 assent to the bequest, unless there were reason to contend that it 
 passed some beneficial interest, (a) 
 
 If the claim were made, there seems no reason to doubt, but that 
 the effect of a residuary or general bequest of personal estate would 
 be held to extend to trust property of that description, subject to the 
 same rules, mutatis mutandis, for restricting its operation, as have 
 been established respecting similar dispositions of real estate. 
 
 The devisee of a trust estate, together with the legal interest, will 
 in general take all the legal powers of disposition, as fully and ef- 
 fectually as the testator himself. But powers vested personally in 
 the original trustee, will not pass to his devisee, unless they be ex- 
 pressly limited to the trustee and his assigns by the instrument cre- 
 ating the trust. Therefore, where a discretionary power of dispo- 
 sition was given by will to two trustees, and the survivor of them, 
 and the heirs, executors, and administrators of the survivor, it was 
 held by Sir William Grant, M. R., and that opinion was approved of 
 by Lord Eldon,(6) that the devisees of the surviving trustee were not 
 authorized to exercise the power given by the first will.(c) And 
 persons claiming by assignment from the original trustee or his 
 heirs in a similar case, will be equally incapable of exercising the 
 power, (d) 
 
 The devisee of a trust estate may doubtless dissent from and dis- 
 claim the devise, in the same manner as if it were a beneficial gift to 
 him, and in that case no estate passes to him by the will.(e) 
 
 (a) 2 Jarm. Pow. Dev. 154. 11 Leigh, 342 ; but see ante, p. 283, in 
 
 lb) Walter v. Maunde, 19 Ves. 424. note.] 
 
 (c) Cole V. Wade, 16 Ves. 27; see {d) Bradford v. Belfield, 2 Sim. 264; 
 
 Bradford v. Belfield, 2 Sim. 264; 1 Cooke v. Cravpford, ubi supra. [See 
 
 Sugd. Pow. 148, 6th ed. ; Cooke v. remarks in 2 Sugd. Powers, 466.7th ed.] 
 
 Crawford, 11 Law Journ. N. S., Chanc. (c) 1 Jarm. Pow. Dev. 429; ante, Ft. 
 
 406; 13 Sim. 91. [Hughes v. Caldwell, L Div. IV. Chap. II. Sect. 1. 
 
ESTATE OP TRUSTEES UNBER DISABILITY, 407 
 
 III.— OF THE DISPOSITION OF THE ESTATE OP TRUSTEES WHO ARE 
 UNDER ANY LEGAL DISABILITY. 
 
 At common law, trustees who labor under any legal disability, can 
 dispose of the trust estate only in the same manner and to the same 
 extent as other persons in the same situation. Thus, a married 
 woman being a trustee of real estate, could convey only by fine or 
 recovery, or (since the act (3 & 4 Will. IV. c. 74), for the abolition 
 of fines and recoveries) by a deed duly acknowledged by her accord- 
 ing to the provisions of that act.(/)' 
 
 So an infant trustee, or one non compos mentis, was unable to make 
 *any valid disposition of the trust estate at all: nor could a p^gjjn-, 
 conveyance be obtained from such trustees, even by the assis- •- -* 
 tance of the Court of Chancery, until this inconvenience was remedied 
 by statute. 
 
 The first act passed with this object was that of 7 Ann. c. 19, 
 which enabled infant trustees, or mortgagees of lands to convey by 
 the direction of the Court of Chancery, to be made on petition.^ The 
 act of 4 Geo. II. c. 10, was then passed, empowering lunatic trustees 
 or mortgagees of lands, or their committees, to convey under the 
 direction of the Lord Chancellor, also to be obtained on petition. 
 The act 36 Geo. III. c. 90, provided a similar remedy for the inca- 
 pacity of trustees of stock. And these several statutes were finally 
 repeated, and their provisions re-enacted and extended by the act 
 6 Geo. IV. c. 74. 
 
 It was held, that none of these enactments prior to the 6 Geo. IV. 
 c. 74, applied to infant or lunatic trustees, who had any beneficial 
 interest or claim, (6) or any duties to perform. (c) They extended 
 only to mere dry trustees. (c^) 
 
 It was also held, that the act 4 Geo. II. c. 10, did not apply to 
 lunatic trustees, who had not been so found by inquisition. (e) Al- 
 
 (/) See Ex parte Maire, 3 Atk. 479; (d) v. Handcock, 17 Ves. 384. 
 
 Eadcliffe v. Eccles, 1 Keen, 130. (e) Ex parte Lewis, 1 Ves. 298; Ex 
 
 (6) Hawkins v. Obeen. 2 Ves. 559; parte Gillam, 2Ves. jun. 587. But the 
 
 Ex parte Sergison, 4 Ves. 147. act 1 Geo. IV. c. 114, extended that of 
 
 (c) Ex parte Tutin, 3 V. & B. 149; 4 Geo. IL to lunatics, who were not so 
 
 Ex parte Chasteney, Jac. 56; Ex parte found by inquisition. 
 Anderson, 5 Ves. 243. 
 
 ' So her husband must join in the deed, as in other cases. Palmer v. Oakley, 
 2 Dougl. 354. See, however, Insurance Co. v. Bay, 4 Comst. 9. In Pennsyl- 
 vania, the court will compel a feme coverte trustee by descent, conveying under 
 decree, to. acknowledge that she executed the deed voluntarily, in order to give 
 validity to the conveyance. Dundas v. Biddle, 2 Barr, 160. With regard to the 
 statutory provisions on the subject in the United States, see ante, 190, note. 
 
 2 This act is in force in South Carolina, 2 Coop. Stat. 546; and was formerly so 
 in New York. Livingston u. Livingston, 2 J. C. R. 541. 
 
408 o'f the disposition of the 
 
 though such persons were held to be -within that of 36 Geo. Ill c 
 90.(/) 
 
 The act 6 Geo. IV. c. 74, extended the jurisdiction of the court to 
 trustees having an interest or duty to perform ; but neither that nor 
 any of the preceding statutes applied to trustees by constructive 
 trust,(^) unless indeed the existence of the trust had been determined 
 by a decree. (A) 
 
 The jurisdiction of the court in cases of the disability of trustees 
 is now governed by the act 1 Will. IV. c. 60, usually known as Sir 
 Edward Sugden's Act. This act, the provisions of which will pre- 
 sently be considered in detail, enables the court to direct a convey- 
 ance of trust property to be made by infant trustees, or by the com- 
 mittees of lunatic trustees, or (if the lunatic has not been so found 
 by inquisition), by any person to be appointed by the Lord Chancel- 
 lor for that purpose. 
 
 Again, there are many eases in which it is extremely difficult, if 
 not absolutely impossible, to obtain a conveyance of the legal interest 
 by any of the ordinary modes of proceeding : although there may be 
 no actual personal incapacity in the trustee. For instance, where 
 the trustee is resident in a foreign country ; or where from frequent 
 deaths or lapse of time, or failure in representation, or some other 
 similar reason, it cannot be accurately ascertained who is the person 
 actually possessed of the legal estate at the particular moment. 
 
 These cases, which were partially remedied by previous statutes,(«) 
 are now also provided for by 1 Will. IV. c. 60, as explained and ex- 
 tended by the 2d section of 4 & 5 Will. IV. c 23. The former act 
 empowers the court to appoint a person to convey the trust estate 
 
 .-. ^or,-. ii place *of the actual trustee, in the same manner as in the 
 r 2891 . 
 
 L -J case of an infant or lunatic trustee. — 1st, Where the exist- 
 ing trustee is out of the jurisdiction. — 2d, Where it is not known 
 who was the survivor of several trustees. — 3d, Where it is uncertain 
 whether the trustee last known is alive or dead. — 4th, Where it is 
 not known who is his heir (in the ease of real estate) — and 5th, 
 Where the existing trustee refuses to convey or transfer when duly 
 required. — Lastly, The subsequent act 4 & 6 Will. IV. c. 23, extends 
 the provisions of 1 Will. IV. e. 60, to the case of a trustee of real 
 estate dying without an heir. 
 
 We will now proceed to consider seriatim the several provisions 
 of the act of 1 Will. IV. c. 60, and the decisions upon the construc- 
 tion of those provisions. 
 
 (/) Sirams v. Naylor, 4 Ves. 360; Vernon, 2 P. Wms. 549; Dew u Clarke, 
 
 West V. Ayles, T. & R. 330. 4 Russ. 51 1 ; Re Moody, Taml. 4. 
 
 (g) Goodwin v. Lister, 3 P. Wms. Qi) See Hawkins v. Obeen, 2 Ves. 
 
 387 ; Ex parte Currie, 1 J. & W. 642 ; 559. 
 
 King V. Turner, 2 Sim. 549; Ex parte (i) 36 Geo. III. c. 90; 6 Geo. IV. c. 74. 
 
ESTATE OF TRUSTEES UNDER DISABILITY. 409 
 
 It is to be premised that the act applies only to legal interests, and 
 therefore an assignment of a chose in action is not within its pro- 
 visions. (A) 
 
 The 3d, 4th, and 5th sections of the act provide for the knacy 
 of trustees, or mortgagees of land or stock, and empower the Lord 
 Chancellor to direct the conveyance of the land, or the transfer of 
 the stock, by the committee of the lunatic, or, if he has not been 
 found a lunatic by inquisition, by any person whom the Lord Chan- 
 cellor may think proper to appoint for that purpose.' 
 
 By the interpretation clause contained in the 2d section, the pro- 
 visions relating to a lunatic are declared to extend to any idiot or 
 person of unsound mind or incapable of managing his aifairs. And 
 by the express terms of the act, it applies to a trustee who is of un- 
 sound mind, although not actually found a lunatic on inquisition. (Z) 
 But mere infirmity or weakness of intellect will not be sufficient to 
 bring a trustee within the act.(»i) 
 
 It was held on one occasion by the present Vice-Chancellor of Eng- 
 land, that the Vice-Chancellor had jurisdiction to direct the prelimi- 
 nary reference to the Master to inquire, whether a lunatic-trustee 
 was a trustee within the act, although his jurisdiction ceased at that 
 point.(w) However, it was afterwards decided by the Lords Com- 
 missioners, that the V. C. had no power to make even that prelimi- 
 nary order, but that every order in the matter of a lunatic must pro- 
 ceed from the Lord Chancellor, or other person to whom the juris- 
 diction over lunatics is committed by the crown.(o) The Master of 
 the Rolls therefore is equally excluded. For this reason the Lord 
 Chancellor cannot adopt the facts relating to the lunacy of a trustee 
 which have been found in a suit in another court, but he will require 
 them to be ascertained by the usual reference. (p) 
 
 The court cannot make any order on a petition under the act, 
 where the fact of the lunacy is contested.(g') 
 
 The 6th and 7th sections of the act provide for the infancy of 
 trustees of land.{Vf The 6th section enables infant trustees to con- 
 
 (A) Price V. Dewhurst, 8 Sim. 617. (o) Re Shorrocks, 1 M. & Cr. 31. 
 
 (Z) See re Welch, 3 M. & Cr. 292. (p) Re Prideux, 2 M. & Cr. 640. 
 
 (m) Re Wakeford, 1 Jones & Lat. 2. (g) Re Walker, Cr. & Ph. 147. 
 (n) Anon. 5 Sim. 322. 
 
 (1) By the interpretation clause contained in the 2d section, the provisions rela- 
 ting to land are declared to extend to any manor, messuage, tenement, heredita- 
 
 ' On a petition under these sections, the court never interferes in the adminis- 
 tration of the trusts, but merely substitutes a trustee in place of the lunatic. In re 
 Ward, 2 Mac. &G. 73. 
 
 2 See on these sections, In re Barry, 2 Jones & Lat. 1 ; In re Halliday, 1 
 Drury 3; Galium v Upton, 14 Jur. 187; 19 L. J. Ch. 276. 
 
410 OF THE DISPOSITION OF THE 
 
 r*2Q01 ^^^ ^^^ ^^^^ ^^ *^^^ direction of the Court of Ohancery.i 
 L -^ And the 7th section enacts, that where the lands are within 
 the jurisdiction of the Courts of Lancaster, Chester, Durham, and 
 Wales, the conveyance is to be made under the direction of those 
 courts, (r) 
 
 It will be observed that the act provides for the infancy of trustees 
 of real estate only. It was unnecessary to extend this provision to 
 personal estate, for in the case of the personal representative of a 
 trustee being an infant, a remedy might be obtained under the ex- 
 isting law by taking out letters of administration durante minoxe 
 cetate. 
 
 It has been decided that the infant heir of a mortgagee is a trustee 
 within the meaning of the act.(s) 
 
 And the infant heir of a devisee of an estate charged with legacies 
 after a decree in a suit for raising the legacies by a sale, is also a 
 trustee for the legatees within the a.ct.(t) 
 
 The court has no jurisdiction to direct the sale of the real estate 
 of an infant on the ground of its being for his benefit ; and a decree 
 directing such a sale, and declaring that the infant should be a trus- 
 tee for the purchaser within the act, 1 Will. IV. c. 60, was held to 
 be erroneous ; and the purchaser was discharged on petition with his 
 costs. (m) 
 
 But where the decree for sale has been obtained by the ancestor of 
 the infant, in his lifetime, the heir will be a trustee within the act.(2;) 
 
 The infant heir of a trustee of a dry legal estate, from whom 
 a conveyance is required, need not be served with the order of 
 reference to the master, or the other orders in the matter of the 
 petition ; and if he oppose the order for a conveyance without suffi- 
 cient grounds he will be deprived of his costs. (z/) 
 
 The 8th, 9th, and 10th sections of the act provide for the cases of 
 
 (r) The Court of Great Sessions in maney, 10 Sim. 298. [See the form of the 
 
 Wales, and of the County Palatine of order, in In re Halliday, 1 Drury, 3.] 
 
 Chester, have since been abolished. (t) Walters v. Jackson, 12 Sim. 278. 
 
 (i) Re Gathorne, 8 Sim. 342 ; see (u) Calvert v. Godfrey, 6 Beav. 97. 
 
 Prendergast v. Eyre, Ca. Temp. Sugd. {x) Prendergast v. Eyre, Ca. Temp. 
 
 11. Ex parte Griffin, V. C. 13th April, Sugd. 11. 
 
 1837 ; re Kent, 9 Sim. 501 ; S. C. Cook's (t/) Ee Bradbournej 12 Law Joura. N. 
 
 Ch. Orders, 2d ed. 133; Ex parte Ora- S., Chanc. 353. 
 
 ment, or real property, of whatever tenure, and to property of every description 
 transferable otherwise than in books kept by any company or society, or any 
 share thereof or interest therein. 
 
 ' A conveyance by an infant trustee passes only such estate as the infant if of 
 ^11 age might pass; Oldfield v. Cobbett, 8 Beavan, 294. 
 
ESTATE OP TRUSTEES UNDER DISABILITY. 411 
 
 trustees being out of jurisdiction, or not being known, or their re- 
 fusal to convey or transfer. 
 
 By the 8th section it is enacted, that where any person seised of 
 any land upon any trust shall be out of the jurisdiction of or not 
 amenable to the process of the Court of Chancery, or it shall be un- 
 certain (where there were several trustees) which of them was the 
 survivor, or it shall be uncertain, whether the trustee last known to be 
 seised be living or dead, or if known to be dead, it shall not be known 
 who is his heir ; or if any such trustee, or the heir of any trustee, 
 shall neglect or refuse to convey for twenty-eight days after a proper 
 deed shall be tendered for his execution by any person entitled to re- 
 quire it, in every such case it shall be lawful for the Court of Chan- 
 cery to direct any person, whom the court may think proper to ap- 
 point for that purpose, to convey the land. 
 
 The 9th section contains similar provisions respecting trustees of 
 leaseholds, except that the provision contained in the 8th section for 
 the cases of the survivor of several trustees, or the heir of the last 
 trustee, not being *known, is omitted in the 9th section, p^nq-i-i 
 The reason of this omission being, that it is open to the par- ^ 
 ties to continue the legal representation in competent persons, by 
 taking out administration to the old trustees, (s) 
 
 The 10th section also contains similar provisions respecting trus- 
 tees of stock,{Vj with the same omission as the 9th section, and with 
 the exception, that the refusal of the trustee to transfer must be for 
 thirty-one days after a request in writing from the party entitled^ 
 There is also an additional provision for the case of the trustee's 
 refusing to receive and pay over the dividends. 
 
 It will be observed, that the case of a trustee of real estate dying 
 without an heir is not provided for by the 8th section; and the omis- 
 sion was intentional, in order not to deprive the lord of any right by 
 escheat. However, the subsequent act (4 & 5 Will. IV. c. 23) for the 
 alteration of the law of escheat, has supplied that omission, and has 
 extended the provisions of . 1 Will. IV. c. 60 "to the case of a trustee 
 or mortgagee dying without an heir. 
 
 The provisions of the 8th section of the act of 1st Will. IV. are 
 not expressly extended to mortgagees, as is the case in the previous 
 sections, which provide for lunacy and infancy. Hence, it was held 
 at first, that the heir of a mortgagee, who was not known, («) or was 
 
 (z) See re Anderson, LI. & G. 27. (a) Re Goddard, 1 M. & K. 25 ; Re 
 
 Stanley, 5 Sim. 320. 
 
 (1) The interpretation clause declares, that the provisions respecting sioci shall 
 extend to any fund, annuity, or security, transferable in any books kept by any 
 company or society established or to be established, or to any money payable 
 for the discharge or redemption thereof, or any share or interest therein. 
 
412 OP THE DISPOSITION OF THE 
 
 out of the jurisdiction, (5) or the devisee of a mortgagee, (c) was not a 
 trustee within the meaning of the act. Although, where a mortgagee 
 had obtained a decree for sale, his heir, being out of the jurisdiction, 
 was held by Sir Edward Sugden to be a trustee within the a.ct.{d) 
 
 However, the 2d section of 4 & 5 Will. IV. c. 23, which extends 
 the provisions of 1 Will. IV. c. 60 to the case of a trustee or mort- 
 gagee dying without an heir, refers to the latter act, as if it applied 
 equally to trustees and mortgagees. Consequently, it was held by , 
 Lord Langdale, M. B,., in Ex parte Whitton,(e) that mortgagees and 
 the heirs of mortgagees were within the act of 1 Will. IV. as ex- 
 plained by the 2d section o/ 4 ^ 5 Will. IV. c. 23. And this de- 
 cision was followed by Sir L. Shadwell, V. C, in several subsequent 
 cases, (/) 
 
 In this state of the authorities the act 1 & 2 Vict. c. 69 was 
 passed, which gives the court jurisdiction to direct a conveyance in 
 the place of the heir or devisee of a mortgagee, under the same cir- 
 cumstances which are provided for by the 8th section of 1 Will. IV. 
 c. 60, and the 2d section of 4 & 5 Will. IV. c. 23, in cases where the 
 mortgagee shall have died without having been in possession or in 
 receipt of the rents of the mortgaged estate, and the mortgage money 
 shall he paid to his executor or administrator. And it then enacts, 
 that neither of the acts, 1 Will. IV. c. 60, or 4 & 5 Will. IV. c. 23, 
 _ -- - shall extend to mortgagees *in any other case than those "pro- 
 L "'-' vided for by that act. Hence the jurisdiction of the court, 
 under the 8th section of 1 Will. IV. c. 60, will in future be confined 
 to the heir or devisee of a mortgagee, who has died without having 
 been in possession, and where the money has been paid off. 
 
 However, it has been decided, that the act of 1 & 2 Vict, was not 
 intended to repeal the previous acts, and, therefore, that the juris- 
 diction of the court still remains with regard to infant and lunatie 
 mortgagees, who are expressly included in the third and sixth sections 
 of 1 Will. IV. c. 60, although the words of the final clause in the act 
 of Victoria, if strictly followed out, would unquestionably have de- 
 prived the court of the jurisdiction in those cases. (^) 
 
 A trustee, who was captain of a merchant ship on its voyage to 
 India, has been held not to be out of the jurisdiction within the mean- 
 ing of the act.(A) 
 
 Where two or more persons are Jointly seised of an estate as trus- 
 tees, and one of them^ absconds, or cannot be found, the case does 
 
 (6) Re Dearden, 3 M. & K. 508. (/) Re Stanley, 7 Sim. 170; Re Wil- 
 
 (c) Ex parte Payne, 6 Sim. 645. son, 8 Sim. 393; Re Williams, 9 Sim. 
 
 Id) Prendergast v. Eyre, Ca. Temp. 426 ; Re Thompson, 12 Sim. 392. 
 
 Sugd. U. (g) Re Gathome, 8 Sim. 392. 
 
 (e) 1 Keen. 278; sed vide Green v. {h) Hutchinson v. Stephens, 5 Sim. 
 
 Holden, 1 Beav. 207. 498. 
 
ESTATE OF TRUSTEES UNDER DISABILITY. 413 
 
 not come within the 8th section of the act, for the trustee who cannot 
 be found, is not the trustee "last known to be seised." This decision 
 was recently made with respect to the husband of a feme trustee of 
 real estate, who had absconded.(«) But the same principle applies 
 with equal force to one of several co-trustees. 
 
 The court will receive proof by affidavit at the hearing, that the 
 trustee after every exertion cannot be found, where the inability to 
 discover him is the foundation of the application. (A) 
 
 In order to found an application to the court to direct a convey- 
 ance on the ground of the refusal of the trustee to convey, the 8th 
 and 9th sections require a conveyance or assignment to have been 
 tendered to the trustee by the persons entitled to require it. The 
 tender must therefore be made by the cestui que trusts, being sui 
 juris, or (where the conveyance is to new trustees) by the new trus- 
 tees, who have been duly appointed, either under a power, or by the 
 decree of the court.(Z) 
 
 An order of the court to a trustee to transfer stock, cannot be 
 treated as the request of the persons entitled, so as to bring the 
 trustee within the 10th section. (m) 
 
 The 11th section of the act prescribes the mode of obtaining the 
 order for a conveyance, and by whom the application for that pur- 
 pose may be made. 
 
 It directs that the order may be made in any cause depending in 
 the court, or upon petition, in the lunacy or matter. 
 
 Although it may be optional for the parties to proceed either by 
 suit or petition, yet if a hill have been once filed to obtain the con- 
 veyance or transfer from a trustee, and the answer have been put in, 
 the court will not then entertain a petition presented under the act 
 with the same object, but the cause must proceed regularly to a 
 hearing.(w) 
 
 *In some cases, — as in cases of constructive trusts coming 
 within the 16th and 17th sections of the act, which will be L -^ 
 presently considered, — the court has no jurisdiction to direct a con- 
 veyance under the act, until the right of the parties to require the 
 conveyance shall have been established by a decree. In such cases 
 therefore the parties must necessarily proceed by suit ; and an ap- 
 plication by petition in the first instance will be improper. And it 
 is the same with regard to doubtful cases, coming within the 12th 
 section. 
 
 Where a decree is made in a suit declaring the defendant a trustee 
 
 {%) Moore v. Vinter, 12 Sim. 161. binson v. Wood, 5 Beav. 246j Ex parte 
 
 (&) Moore v. Vinter, ubi supra; De Foley, 8 Sim. 395. 
 
 Crespigny v. Kitson, 12 Sim. 163, cited. (m) Madge v. Riley, 3 Y. & Coll. 425. 
 
 {I) See Rider v. Kidder, 13 Ves. 123 ; (n) Burr v. Mason, 2 S. & St. 11. 
 Mansfield v. Magnay, 2 Moll. 153; Ro- 
 
414 OP THE DISPOSITION OP THE 
 
 within the act, and the conveyance or transfer is to be made by the 
 defendant himself, as where he is an infant, he will at once be 
 directed to make the conveyance or transfer by the same decree, 
 which declares him to be a trustee, and it is now settled, that a sub- 
 sequent petition to obtain the order for a . conveyance is unneces- 
 sary,(o) although the practice in that respect was formerly dif- 
 ferent. (p) 
 
 And so where the person to mate the conveyance or transfer in 
 place of the trustee is pointed out by the S2d section of the act, the 
 court will in like manner by its decree at once direct the conveyance 
 or transfer to be made by that person in place of the party, whom 
 by the same decree it declares to be a trustee. Thus where one of 
 two co-executors and trustees was proved to be out of the jurisdic- 
 tion, his co-executor was at once ordered to transfer the trust stock 
 without any reference to the Master. (§') And so the secretary or 
 officer of the bank will be ordered to make the transfer at once under 
 similar circumstances, (r) And the same reasons would of course 
 authorize a similar direction to the committee of a lunatic trustee. 
 
 But where the person to make the conveyance or transfer in the 
 place of the trustee is not pointed out by the act, as a general rule 
 the order for a conveyance will not be immediate, but there must be 
 a reference to the Master to appoint a person to execute a convey- 
 ance in the place of the trustee. (s) 
 
 An order for a conveyance has been made on motion after a de- 
 cree. But such a motion must be on notice ; or made with the con- 
 sent of all parties.(i) 
 
 Again if the defendant in a suit be not actually declared a trustee 
 within the act by the decree, but the fact of his being such a trustee 
 is only a result, which arises from the decree itself (as where there 
 is a decree for the sale of the estate in which he has the legal in- 
 terest), a petition must be presented in the usual manner under the 
 act to obtain an order for a conveyance, and the proceedings upon 
 the petition will be regularly carried out according to the usual prac- 
 tice, which will presently be considered.(M) 
 
 By the 11th section the court is also enabled to act upon petition 
 
 (o) Walton I). Merry, 6 Sim. 328: (s) See Fellowes jj.Till, 5 Sim. 319; 
 
 Miller v. Knight, 1 Keen, 129; Broom Beale v. Ridge, 4 Y. & C. 248, cited. 
 «. Broom, 3 M.& K. 433; Neve w. Bine, («) Callaghan v. Egan, 1 Dr. & 
 
 1 Keen, 129, n.; Hanson u. Lake, 2 N. Walsh, 187. 
 C. C. 328. (u) Parker v. Burney, 1 Beav. 492; 
 
 {p) Fellowes v. Till, 5 Sim. 319; Robinson'u. Wood, 5Beav.246;Cockell 
 
 Prytharch v. Havard, 6 Sim. 9. v. Pugh, 6 Beav. 293 ; King v. Leach, 
 
 iq) Parker 1). Burney, 1 Beav. 492. 2 Hare, 57; Walters v. Jackson, 12 
 
 (r) See Cockell v. Pugh, 6 Beav. Sim. 278. 
 293, sec. 294; re Law, 4 Beav. 509, 
 512. 
 
ESTATE OP TRUSTEES UNDER DISABILITY. 415 
 
 in *the lunacy or matter. And that section directs, that the r-^g^A-, 
 petitioner shall he the person or some or one of the persons L ^ 
 heneficially entitled to the land, stock, or dividends, to be conveyed, 
 transferred, or received ; except where a conveyance to a new trus- 
 tee is required, when the petition may he presented by the new trus- 
 tee, or any of the trustees, being duly appointed under a power, or 
 by the Court of Chancery.(l) 
 
 Where there is no suit, the court can act upon petition only, and 
 not on motion ; for a petition is required by the statute, and the 
 court has no jurisdiction except in the mode prescribed.(a;) 
 
 It has been seen, that the act requires the petition to be in 
 the lunacy, or the matter. It is therefore essential, that a petition 
 under the act should be so entitled, in order to give the court juris- 
 diction. It is also now the settled practice, to require the petition to 
 be likewise entitled in the matter of the act of parliament, under 
 which the application is made.(?/) Although this is not essential to 
 the validity of the petition. (2) 
 
 In cases, where the appointment of a new trustee is not required, 
 the petitioner must be. the person or one of the persons beneficially 
 entitled to the land, stock, or dividends, to be conveyed, transferred, 
 or received. , 
 
 It has been decided, that a person having a partial interest in the 
 trust property, — as for instance an annuitant, to whom an equitable 
 interest in a sum of stock had been assigned, as a farther security 
 for the annuity — may present a petition under the act.(a) 
 
 Where there has been a decree in a suit for the sale of an estate, 
 we shall see presently, that the effect of that decree will be to con- 
 vert the defendant, in whom the legal estate is vested, into a trustee 
 within the meaning of the act, and that an order for the conveyance 
 of the property may be obtained upon petition, upon the refusal of 
 the defendant to execute the conveyance, or his being out of the 
 jurisdiction, &c.(J) 
 
 However, it is doubtful from the authorities, whether the purchaser 
 under the decree, or the persons beneficially interested in the pur- 
 chase-money, are the proper parties to present this petition. In 
 Eobinson v. Wood,(c) the petition was presented by the purchaser, 
 
 {x) Eveline v. Foster, 8 Ves. 96 ; (6) Prendergast v. Eyre, Ca. Temp. 
 
 Baynes v. Baynes, 9 Ves. 462; Vide Sugd. 11; Robinson v. Wood, 5 Beav. 
 
 anon. 1 Y. & Coll. 75. 246; King v. Leach, 2 Hare, 57; see 
 
 {y) Re Law, 4 Beav. 509. Beale v. Ridge, 4 Y. & C. 248, cited; 
 
 (z) Re Fowler, 2 Russ. 449 ; and see et vide post. 
 
 4 Beav. 510, 511. (c) 5 Beav. 246; et vide Calvert v. 
 
 ifl) Re King, 10 Sim. 605, 607. Godfrey, 6 Beav. 97, 102. 
 
 (1) A mere proposed trustee cannot present the petition for a conveyance to 
 himself under this section. Re Odell, Hayes' Ir. Excheq. Rep. 257. 
 
416 OP THE DISPOSITION OF THE 
 
 and the order was made by the Master of the Rolls (Lord Langdale), 
 without raising any question as to the propriety of the proceeding. 
 But in a subsequent case before V. C. Wigram, which occurred in the 
 same year, and but shortly after Robinson v. Wood, the petition was 
 presented by the plaintiffs in a cause, who were equitable mortgagees 
 of the estate, which had been decreed to be sold. His Honor said, 
 that it was impossible the defendant could be treated as a trustee 
 for the purchaser within the act. The act provided, that it should 
 P^onr-i not extend to the case of a vendor except *in the particular 
 circumstances provided for,(d) and those circumstances did 
 not occur in that case. However, his Honor added, that he thought 
 the effect of the decree was, to make the defendant a trustee not for 
 the purchaser, but for the plaintiffs in the cause, and that the de- 
 fendant being out of the jurisdiction, the plaintiffs were entitled, under 
 the act, to an order for the appointment of a person in the place of 
 their trustee to assign the premises to the purchaser.(e) 
 
 Lord Langdale's decision in Robinson v. Wood, was not brought 
 to the notice of the court in this last case, but as the point in ques- 
 tion was expressly decided after consideration in King v. Leach, it 
 may probably be considered entitled to more weight than the case at 
 the Rolls, in which the attention of the Master of the Rolls does not 
 appear to have been directed to this particular point. However, a 
 further judicial decision is undoubtedly requisite to settle the practice. 
 
 A petition for a conveyance under the act must state all the facts 
 necessary to show the petitioner's title to the relief, and to bring the 
 case within the summary jurisdiction of the court. 
 
 And the statement must be verified by afl5davit.(/) And where 
 a petition for the transfer of stock is presented on the refusal of the 
 executors of the surviving trustee to take out probate, the affidavit 
 should state, that the executors refuse to take the steps necessary 
 for enabling them to transfer ; and an affidavit, that they refused to 
 take out probate is not sufficient. (^) Where a trustee's absence 
 from the country is the ground of the application, the affidavit should 
 state the country where he is resident.(^) 
 
 As a general rule, the court will not make any order for convey- 
 ance or transfer on petition in the first instance : but the first order 
 will be, for a reference to the Master to inquire, whether the person 
 from, or in place of, whom a conveyance is sought is a trustee' 
 within the act.(«) There must then be a second petition upon the 
 Master's report on this reference. 
 
 (d) Sect. 18, vide post. (g) Ex parte Winter, ubi supra. 
 
 (e) King v. Leach, 2 Hare, 57. (k) Ex parte Hughes, 1 Jones & Lat. 
 (/) Ex parte Winter, 5 Russ. 284; 32. 
 
 Moored. Vinter, 12 Sim. 161; DeCres- (i) 3 Newl. Prac. 242, 3d ed.; 1 
 pigny r. Kitson, id. 163, cited. Turn. Prac. 405; Seton on Decrees, 
 
 252. 
 
ESTATE OP TRUSTEES UNDER DISABILITY. 417 
 
 However, this reference is only made for the satisfaction of the 
 court, nor is it essential in every case. But if the court be perfectly 
 satisfied of the facts, the order may be made -without any reference, 
 or the reference will be confined to those facts only, as to which the 
 court cannot feel satisfied without a reference.(fc) 
 
 Therefore where the party has been declared a trustee within the 
 act by a decree in a cause ; or the fact of his being such a trustee 
 appears from the decree (as where there is a decree for sale) ; or it 
 is evident from the proceedings in the cause ; the reference is not 
 required for the satisfaction of the court, which will pay attention 
 to the previous proceedings ; and the order for the conveyance or 
 transfer will, consequently, be made at once, without any previous 
 reference. (Z) 
 
 And in very clear cases, even on a simple petition without any 
 previous *suit, the court has dispensed with the usual preli- 
 minary reference ; and where a conveyance is sought from L ^ 
 an infant, it will itself examine the proposed conveyance for the pur- 
 pose of making an immediate order for him to execute it.(»i) In a 
 late case, where the surviving trustee of a settlement refused to exe- 
 cute a conveyance to new trustees ; the V. C. on petition appointed a 
 person named in the petition to execute the deed in place of the 
 trustee without a reference.(w) And a conveyance to a new trustee 
 has been ordered on petition without a reference, where the petitioner 
 was the only person interested in the property.(o) 
 
 Where the property is Very small, it seems that the order, refer- 
 ring it to the Master to inquire whether the party is a trustee within 
 the act, may go on to direct a conveyance at once if the Master 
 should so find ; so as to do away with the necessity of coming back 
 to the court for the final order upon the Master making his report. (p) 
 It was said by the Master of the Kolls in the case referred to, that 
 in cases of charity the court will never dispense with a reference. 
 
 The order of reference to the Master, or the other orders in the 
 matter of a petition for a conveyance under the act, need not be 
 served on the infant heir of a trustee of a dry legal estate; and if 
 the infant oppose the petition without suflScient grounds, he will be 
 deprived of his costs, (g-) 
 
 (fc) Per Lord Langdale, M. R., in Chanc. 168; 8Jur. 347; re Piatt, Ibid. 
 Cockell V. Pugh, 6 Benv. 294. cited. 
 
 (?) Parker v. Burney, 1 Beav. 492 ; (n) Ex parte Foley, 8 Sim. 395. 
 Robinson v. Wood, 5 Beav. 246; King (o) Ex parte Shick, 5 Sim. 281 ; et 
 V. Leach, 2 Hare, 57 ; and see Fellowes vide re Trapp, ubi supra. 
 V. Till, 5 Sim. 319; Prytharch v. Ha- (p) Att.-Gen. v. Arran, 1 J. & W. 
 vard, 6Sim. 9; Walters 1;. Jackson, 12 229; Neal v. Dell, Vice-Chancellor 
 Sim. 278. Bruce, 9 Jurist, 99. 
 
 (m) Re Trapp, 13 Law. Joum. N. S. (9) Re Bradbourne, 12 Law Journ. 
 
 N. S., Chanc. 353. 
 27 
 
418 OP TUB DISPOSITION OP THE 
 
 When the Master has made his report upon the reference, a second 
 petition must be presented, praying the confirmation of the report, 
 and that the person approved of by the Master may be ordered to 
 execute the conveyance or assignment. 
 
 The Master's report on a reference under the act cannot be ea;- 
 eepted to, but if the parties are dissatisfied with it, they must bring 
 it before the court by petition, when it will either be confirmed, or 
 referred back to the Master to be reviewed, (r) 
 
 It is not sufficient for the Master's report to state simply that the 
 party is a trustee within the act, but the documents and facts which 
 establish the trust should be stated on the face of the report. (s) 
 
 The act declares, that every conveyance executed under an order 
 made within the act shall be as efiectual as if executed by the trus- 
 tee. Hence it will not have any greater efi'ect, and all the same 
 formalities must be observed, that would have been requisite to give 
 it legal validity, in case it were executed by the trustee himself. 
 Therefore if the estate vested in the trustee be an estate tail, or if 
 the trustee be a married woman, the conveyance must be enrolled, 
 or acknowledged, according to the provisions of the Fines and Ee- 
 coveries Act.(f) 
 
 Where a person has been ordered to execute a conveyance in the 
 place of a recusant trustee, it is not necessary that he should be 
 made a party to the deed, or that there should be a recital in the 
 deed of the order on *the petttion ; but the conveyance may 
 '- -"be prepared, as if it were to be executed by the trustee him- 
 self, and the person appointed by the court may then execute it, 
 and it should be expressed in the attestation clause that he had exe- 
 cuted it in place of the trustee, in pursuance of the order made on 
 the petition. (m) 
 
 In the case in which this decision was made, the conveyance had 
 actually been prepared and tendered to the recusant trustee for exe- 
 cution by him, and its subsequent execution by the person substituted 
 by the court in the manner suggested by the V. C. obviated the ex- 
 pense of preparing a new deed. Where there is no such reason for 
 adopting the course sanctioned by the decision in Ex parte Foley, it 
 would doubtless be more regular and advisable to make the person 
 who is to convey, a party to the deed, and to recite the petition and 
 order in explanation of the transaction. 
 
 By the 12th section of the act, where frpm the length of time since 
 the creation of the trust the title of the person requiring the con- 
 
 (r) Ex parte Burton, 1 Dick. 395; Ex parte Johnson, lb. 559; and see 
 
 Price V. Shaw, 2 Dick. 732 ; Ex parte Radoliffe v. Eccles, 1 Keen, 130; Penny 
 
 Swann, ib. 749; Seton, Decrees, 253. v. Prater, 9 Sim. 135. 
 
 (s) Re Purdon, 1 Dr. & War. 500. (u) Ex parte Foley, 3 Sim. 395. 
 
 (0 See Ex parte Maire, 3 Atk. 749 ; 
 
ESTATE OF TRUSTEES UNDER DISABILITY. 419 
 
 veyance may appear to require investigation, or where the court 
 under any other circumstances may not choose to make an order upon 
 petition, it may direct a bill to be filed to establish the right. 
 
 It was held on one occasion by Sir J. Leach, M. R., that the 
 statute was intended to apply only where the cestui que trusts were 
 named in the instrument creating the trust, or where the^/ claimed 
 directly hy assignment or representation through the persons so 
 named. And where a petition for a conveyance under the act was 
 presented by persons, whose title as cestui que trusts depended on 
 whether the testator's debts and legacies had been paid, and whether 
 a third person had died without issue, his Honor refused to make any 
 order on the petition, observing, " that it could not have been the in- 
 tention of the legislature to give authority to determine facts of that 
 important nature upon an ex parte proceeding; and that he could 
 not act upon the Master's report in such a case."(a;) And this deci- 
 sion was approved of on a rehearing by Lord Brougham, Chan- 
 cellor. («/) 
 
 However, this decision did not meet with the approbation of Lord 
 Lyndhurst,(2) and in a subsequent case, where a petition for a con- 
 veyance had been presented by persons who were entitled to equi- 
 table interests in remainder after the determination of an estate tail, 
 his Lordship considered that the case before him came within the dis- 
 cretionary power given to the court by the 12th section, and he di- 
 rected the usual reference to the Master. (a) 
 
 It is clear, however, that the act does not enable the court to enter- 
 tain, or decide upon, any doubtful or adverse questions of title upon 
 a petition for a conveyance under the act ; and where any such ques- 
 tions arise, or the title of the parties requiring the conveyance is not 
 reasonably certain and clear, the court can act only in a suit regu- 
 larly instituted. (J) 
 
 However, an executor who has assumed the character of a trustee 
 of stock and other securities, which had formed part of the assets, 
 by setting *theni apart for the purposes of the trust, is p^oQg-, 
 clearly a trustee within the meaning of the act ; and where ^ ^ 
 such a person is under disability, or out of the jurisdiction, &c., an 
 order for a transfer may be obtained on petition.(e) 
 
 And so, executors, who refuse to prove, are trustees within the 
 act,(cZ) if they have not renounced.(e) And a person who is named 
 
 (z) Ex parte Merry, 1 M. & K. 677. (6) See re NichoUs, Ca. Temp. Sugd. 
 
 {y) 1 M. & K. 679. 17; re Walker, Cr. & Ph. 147. 
 
 (z) 2 M. & K. 626. (c) Ex parte Dover, 5 Sim. 500. 
 
 (o) Re De Clifford Estates, 2 M. & (d) Ex parte Winter, 5Russ. 284; Ex 
 
 K. 624 ; and see Ex parte Dover, 5 Sim. parte Hagger, 1 Beav. 98 ; re Need- 
 
 500. ham, 1 Jones & Lat. 34. 
 
 (e) 5 Russ. 286. 
 
420 OF THE DISPOSITION OP THE 
 
 executor in a -will, but who declines to state whether he will prove or 
 not, is also a trustee within the act ; (/) so as to enable the court to 
 make an order for an assignment or transfer in such cases on petition. 
 The 13th section of the act declares, that any committee, infant, 
 or other person, directed to convey or transfer under the act, may be 
 compelled to make the conveyance or transfer in the same manner 
 as trustees who are not under disability, &c. 
 
 If an infant trustee refuse to comply with an order to convey, he 
 may be committed on a motion by the petitioner for that purpose. 
 And if the order were obtained in a suit to which the infant was a 
 party, an attachment may be obtained against him.(^) 
 
 The 14th section contains a provision for the payment of mort- 
 gage-money belonging to infants into court. 
 
 The 15th section extends the operation of the act to trustees 
 having a beneficial interest,(A) or having any duty as trustee to per- 
 form ; adding a discretionary power for the court in any case to direct 
 a bill to be filed, and not to make the order for a conveyance or trans- 
 fer unless by the decree in such a suit, or after a decree. 
 
 The 16th, 17th, and 18th sections of the act apply to cases of 
 constructive trust. 
 
 The 16th section provides, that the heir of a vendor who dies after 
 the contract, but before making a conveyance, when a decree is made 
 in a suit for specific performance of the contract, shall be a trustee 
 within the act for the purchaser. And also that a nominal purchaser, 
 in whose name a conveyance is taken, without any declaration of 
 trust for the real purchaser, or the heir of such a nominal purchaser, 
 shall be a similar trustee for the real purchaser, after a decree shall 
 be obtained declaring him a trustee. 
 
 The 17th section extends the operation of the act to the devisee 
 for life of an estate, which had been contracted to be sold by the 
 testator, where a specific performance of the contract shall have been 
 decreed. 
 
 The 18th section extends the previous provisions to every other 
 case of constructive or resulting trust. But it is added, that where 
 the alleged trustee has or claims a beneficial interest, adverse to the 
 party seeking a conveyance or transfer, no order for a conveyance 
 or transfer shall be made, until the person be declared a trustee by 
 the court in a suit regularly instituted. And it is declared that the 
 act shall not extend to cases upon partition, or election, or to a ven- 
 dor, except where thereinbefore expressly provided. 
 
 It will be seen that the cases of constructive trust, which are ex- 
 
 pressly *provided for by the 16th and 17th sections, are those 
 
 ■- J arising upon an incomplete contract for the sale of an estate, 
 
 (./) Cockell V. Pugh, 6 Beav. 293. (A) See Ex parte Ryley, 3 Hare, 614. 
 
 ig) Re Beech, 4 Mad. 128. 
 
ESTATE OF TRUSTEES UNDER DISABILITY. 421 
 
 and upon a purchase by one person in the name of another. Such 
 cases are therefore unquestionably within the operation of the act. 
 But although the 18th section extends the act to all other cases of 
 constructive trust, this provision is so qualified and restricted by the 
 subsequent clause, that it is of very little practical effect for the pur- 
 pose of giving the court any summary jurisdiction to act upon peti- 
 tion. For it can very rarely happen that a mere constructive trus- 
 tee, against whom a conveyance is sought, does not claim some bene- 
 ficial interest in the estate. And in that case, the court is expressly 
 disofbled from making any order without a suit.[i) 
 
 Hence a petition under the act for a conveyance from a trustee 
 by virtue of any resulting or constructive trust, which is not expressly 
 provided for by the 16th or 17th sections, would be very doubtful in 
 its result, and the adoption of such a course could rarely, if ever, be 
 advised. 
 
 As constructive trusts are expressly provided for by these sections, 
 the 8th and other preceding sections cannot be considered to include 
 trusts of that description.(A) 
 
 It has been held, that an agreement for the exchange of lands is 
 not within the 16th section of the act, although a sum of money forms 
 part of the consideration by way of equality of exchange. There- 
 fore, where one of the parties to such an agreement for an exchange 
 died before the execution of the conveyance, leaving an infant heir, 
 the court refused to make an order under the act for the infant to 
 convey. (Z) 
 
 However, where a decree has been properly made for the sale of 
 an estate in mortgage, or subject to a charge, and the sale has been 
 made accordingly, but the mortgagor or his heir, or the owner of the 
 estate subject to the charge, is out of the jurisdiction, or under any 
 disability, or he refuses to convey, it has been held, that the person 
 who has been so decreed to convey, is a trustee within the act, and a 
 conveyance will be directed on petition, (m) Whether he will be a 
 trustee for the purchaser under the decree, or for the persons bene- 
 ficially interested in the purchase-money, is, as has been already 
 stated, a matter of doubt. And the conflicting decisions of Lord 
 Langdale, M. R., in Robinson v. 'Wood,(M) and of Sir James Wi- 
 gram, V. C, in King v. Leach,(o) have been also already considered. 
 
 (i) See the observations of Sir Chris- 246 ; King v. Leach, 2 Hare, 57 ; see 
 
 topher Pepys, M. R., in re Dearden, 3 Beale v. Ridge, 4 Y. & Coll. 248, cited; 
 
 M. & K. 508, 512; and see Turner v. Warburton v. Vaughan, 4 Y. & Coll. 
 
 Edgell, 1 Keen, 502, 505. 247. 
 
 (A) Ibid. (n) 5 Beav. 246 ; and see Calvert v. 
 
 (J.) Turner v. Edgell, 1 Keen, 502. Godfrey, 6 Beav. 97, 102. 
 
 (m) Prendergast v. Eyre, Ca. Temp. (o) 2 Hare, 57. 
 Sugd. 1 1 ; Robinson v. Wood, 5 Beav. 
 
422 OP THE DISPOSITION OF THE 
 
 If the decree for sale be improper or irregular, the person thereby 
 directed to convey will not be a trustee within the act.(_p) 
 
 The 19th section of the act extends its provisions to the husband 
 of any feme, coverte trustee, or mortgagee, where his concurrence is 
 necessary in any conveyance or transfer, &c., by his wife, and 
 whether the husband be under any disability or not. 
 
 In a recent case, where the husband of a woman, who was the sole 
 ^trustee for sale of real estate, had absconded, and had not 
 ■- -■ been heard of up to the hearing of the cause, the Vice-Chan'* 
 cellor of England decreed a sale, and that the husband should be de- 
 clared a trustee within the act 1 Will. IV. c. 60 ; but his Honor 
 declined to appoint a person to convey in place of the husband, on 
 the ground that he was not the person " last known to be seised," 
 within the 8th section, inasmuch as there was a joint seisin in the 
 husband and the wife.(9') 
 
 By the 21st section, the provisions of the act are extended to pe- 
 titions in cases of charity and friendly societies. 
 
 The 22d section, which confers on the court the power of appoint- 
 ing new trustees on petition in certain cases, has been considered at 
 large in a previous chapter, (r) 
 
 The 23d section, which extends the power of appointing new trus- 
 tees to cases of charities, has also been already considered. (s) 
 
 The 24th section facilitates the proceedings of the court in suits 
 where a trustee cannot be found ; the effect of this enactment will be 
 considered in a future chapter, (i) 
 
 The 25th section empowers the court to direct the costs and ex- 
 penses of petitions, and conveyances, and transfers under the act, to 
 be raised and paid out of the land, or stock, or rents, or dividends. 
 
 Under the earlier acts the court had jurisdiction to give an infant 
 trustee his necessary costs of the petition and conveyance.(M) And 
 according to the present practice, an infant trustee or heir of a 
 mortgagee, who is ordered to convey under the act, either on suit or 
 petition, is unquestionably entitled to his costs and expenses occa- 
 sioned by the proceedings. (a;) 
 
 However, the costs must have been reasonably incurred, and no- 
 thing will be allowed which is not necessary. For instance, a brief 
 to counsel to consent for the infant, will be disallowed ; for no at- 
 tention can be paid by the court to such a consent.(j/) 
 
 (p) Calvert v. Godfrey, 6 Beav. 97. Prytharch v. Havard, 6 Sim. 9 ; Midland 
 
 (9) Moore v. Vinten, 12 Sim. 161. Counties Railway Company d. West- 
 
 (r) Ante, Pt. I. Div. III. Ch. II. comb, 11 Sim. 57 ; Hanson v. Lake, 2 
 
 {s) Ibid. N. C. C. 328 ; see re Marrow, Cr. & Ph. 
 
 (<) Post, 545. [Suits against Trustees.] 142, 145. 
 
 (u) Ex parte Cant, 10 Ves. 554. (y) Ex parte Cant, 10 Ves. 554. 
 (z) Ex parte Oramaney, 10 Sim. 298; 
 
ESTATE OF TRUSTEES UNDEB DISABILITY. 423 
 
 The rule is the same with regard to lunatic trustees -.{z) and ac- 
 cording to the present practice, there can be little doubt but that the 
 same rule also applies to lunatic mortgagees. [a) Although a dis- 
 tinction has been held to exist between lunatic trustees and mort- 
 gagees, the latter having been held not to be entitled to their costs of 
 a petition to obtain a conveyance.(J) 
 
 So in other applications for a conveyance under the act, which are 
 not occasioned by the fault of the trustee, as where the trustee is out 
 of the jurisdiction, or cannot be found, &c., there can be no question 
 but that the costs must be borne by the party for whose benefit the 
 order is made.(c) 
 
 However, if the application be rendered necessary by the unreason- 
 able refusal on the part of the trustee to execute a conveyance, he 
 will not be *allowed his costs. (ci) Although even in that case r^onn 
 he will not be made to pay costs, even where there had been ^ ^ 
 a decree in the suit, directing him to convey to the petitioner.(e) 
 
 And so if a trustee, though being an infant, oppose an application 
 for a conveyance under the act without sufficient reason, as, for in- 
 stance, because he had not been served with the order of reference 
 or other orders in the petition — he will be liable to be deprived of 
 his costs. (/) 
 
 In cases within the 16th section, where a vendor has died, after 
 the contract, but before the execution of the conveyance, leaving an 
 infant heir, and a decree has been made in a suit for specific per- 
 formance of the contract, whereby the heir is ordered to convey, the 
 costs of the suit have been ordered to be paid out of the purchase- 
 money.((/) And the reason assigned by Sir L. Shadwell, V. 0. E., 
 in making this order was, that the suit was occasioned by the laches 
 of the vendor in suffering the legal estate in the land sold to descend 
 to his heir-at-law, instead of devising it to a trustee to convey to the 
 purchaser. (7i) (1) However, this reasoning will not apply where only 
 a very short interval has elapsed between the contract of sale and 
 
 (2) Ex parte Tutin, 3 V. & B. 149; (e) Robinson v. Wood, ubi supra. 
 
 Ex parte Pearse, T. & E. 325, 7; over- (/) Re Bradbourne, 12 Law Journ. 
 
 ruling Ex parte Bridges, Coop. 290. N. S. Chanc. 353. 
 
 (a) Re Marrow, Cr. & Ph. 142. (g-) Prytharch v. Havard, 6 Sim. 9; 
 
 (6) Ex parte Richards, 2 J. &W. 264; Midland Counties Railway Company 
 
 and 2 CoUinson on Lunacy, 761. v. Westcomb, 11 Sim. 57. 
 
 (c) Kingt!. Leach, 2 Hare, 57, 59. Qi) 11 Sim. 58. 
 
 [d) Robinson v. Wood, 5 Beav. 246 ; 
 vide supra, p. 278, et post, p. 551. 
 
 (1) It is only the costs of the proceedings requisite to enable the infant heir to convey, 
 that will be borne by the vendor's estate in these cases, the expenses of the con- 
 veyance itself ■will fall upon the purchaser according to the general rule. 1 1 Sim. 57. 
 [See as to this, Lewis v. Baird, 3 McLean, 67; Tiernan v. Roland, 15 Penn. St. 
 R. 440.] 
 
424 OF THE DISPOSITION OF THE 
 
 the death of the vendor. In that case, therefore, if there have been 
 no other default on the part of the vendor, the purchaser will have 
 to bear his own costs, and the costs of the infant will be paid out of 
 the personal estate of the intestate vendor.(i) For that purpose, 
 the administrator of the intestate must appear and consent to be 
 bound by the decree. (A) 
 
 Where an estate has been sold under a decree of the court, and an 
 application under the act becomes necessary in order to obtain a 
 conveyance of the legal estate, we have seen that it is an unsettled 
 point, whether the petition should be presented by the purchaser, or 
 the persons having an interest in the application of the purchase- 
 money. {J) The liability to the costs of the petition is equally un- 
 settled. In Robinson v. Wood, where the purchaser presented the 
 petition, the Master of the Rolls refused to order the trustee to pay 
 costs, and therefore the petitioner must have borne his own costs at 
 all events.(m) In King v. Leach, the equitable mortgagees of the 
 estate, who were the petitioners, were ordered to pay the purchaser 
 his taxed costs. (?i) In that case it appears that the purchase-money 
 was insufficient to pay the petitioner's mortgage debt and the costs 
 of the suit in full. 
 
 Where an improper or irregular order has been upon an appli- 
 cation under 1 Will. IV. c. 60, the court has jurisdiction to order 
 payment of his costs to the party resisting the order.(o) And it has 
 been decided, *that the court may dismiss a petition, which it 
 L -I has no jurisdiction to entertain, with costs.(p) 
 
 By the 26th section of the act, the powers given to the Lord 
 Chancellor of Gfreat Britain sitting in lunacy are extended to all 
 lands and stock in the British dominions, except Scotland and Ire- 
 land. And by the 29th section, the powers given to the Court of 
 Chancery in England are extended to all land and stock in the British 
 dominions, except Scotland. The effect of the 27th, 28th, 30th and 
 31st sections, is to extend the powers of the act to the Court of Ex- 
 chequer, and to the Lords Commissioners or Lord Keeper of the 
 Great Seal, in England, and as to land and stock in Ireland, to the 
 Lord Chancellor, Keeper, and Commissioners, and Courts of Chan- 
 cery and Exchequer in that country. 
 
 The previous acts had been held to extend to lands situated out of 
 the jurisdiction of the court, but within the British dominions, as in 
 the East and West Indies, and Ireland.(g') This construction is ex- 
 
 (0 Hanson u Lake, 2 N. C. C. 328. {p) Re Isaac, 4 M. & Cr. 11. 
 
 (i) Ibid. iq) Evelyn v. Forster, 8 Ves. 96; Ex 
 
 (?) Vide supra. parte Prosser, 2 Bro. C. C. 325; Ex 
 
 (m) 5 Beav. 246. parte Anderson, 5 Ves. 240; Ex parte 
 
 (n) 2 Hare, 57, 59. Bosanquet, id. 242, cited; Ex parte Fe- 
 (o) Re King, 10 Sim. 605; see Calvert nelito, id.; Ex parte Osborn, id. 
 V. Godfrey, 6 Beav. 97. 
 
ESTATE OE TRUSTEES UNDER DISABILITY. 425 
 
 pressly adopted by the present act, except that Scotland is excluded 
 from its operation. 
 
 However, the act does not extend to lands in foreign countries 
 which are not part of the British dominions. (r) 
 
 The 32d section points out the persons who in certain cases are to 
 he named in the order, as the persons to make the conveyance or 
 transfer in place of the trustee. These are — the committee of the 
 estate of a lunatic trustee ; or a co-trustee or co-executor (where 
 there is one) ; or some officer of the company or society, in whose 
 books the transfer was to be made ; and (where the transfer is to be 
 in the books of the Bank of England) the secretary, or deputy secre- 
 tary, or accountant-general, of the bank, or his deputy. 
 
 In other cases, where the appointment of a person to convey is part 
 of the relief required, it will be part of the reference to the Master to 
 appoint a proper person for that purpose. And it seems that the 
 order may be for the Master himself to be at liberty to execute the 
 conveyance. (s) 
 
 The 33d section provides for the indemnity of the bank and other 
 companies and their officers in acting under the act. 
 
 CHAPTER Y. [*303] 
 
 OF THE LEGAL DEVOLUTION OF THE ESTATE OF TKUSTEES. 
 
 Where more trustees than one are appointed, the trust property 
 is almost invariably limited to them as joint-tenants ; and even if the 
 terms of the gift rendered this at all doubtful, the court for the sake 
 of convenience would doubtless endeavor, if possible, to affix this con- 
 struction to it. 
 
 Therefore upon the death of one of the original trustees the whole 
 estate, whether real or pe^rsonal, devolves upon the survivors, and so 
 on continually to the last survivor.* 
 
 Upon the death of a sole or last surviving trustee, who has not made 
 any disposition of the trust estate, it devolves according to its legal 
 quality upon his heir-at-law or personal representative. (a)* 
 
 (r) Price v. Dewhurst, 8 Sim. 617. to take by escheat on the death of a 
 
 {s) See King v. Leach, 2 Hare, 59. trustee without heirs, is now excluded, 
 
 (a) It has been already seen, that the ante p. 50, and Ch. III. p. 269 of this 
 
 title of the crown, or other superior lord, Division. 
 
 'Sheetz v. Unangst, 3 W. & S. 45; Stewart v. Fetters, 10 Missouri, 755; 
 Moses V. Murgatroyd, 1 John. Ch. R. 119; De Peyster v. Ferrers, 11 Paige, 13. 
 Even though survivorship be abolished by statute ; Parsons v. Boyd, 20 Alab. 
 
426 OF THE LEGAL DEVOLUTION OF 
 
 As a general rule the surviving trustees or trustee, or the heir or 
 personal representatives of the sole or^last surviving trustee, are as 
 fully competent to act in the administration and management of the 
 trust estate, as the trustees originally appointed. But, -where discre- 
 tionary powers are given personally to the original trustees, the same 
 rule applies as in the case of devisees ; and the surviving trustee, or 
 heir, or administrator, as the case may be, Tvill not be competent to 
 execute such powers, unless authorized to do so by the trust instru- 
 ment. (6) 
 
 A surviving trustee, who has never accepted or acted in the trust, 
 may execute a disclaimer, and thus dissent from the estate, which the 
 law casts upon him ; and in that case, if the disclaiming party be the 
 last surviving trustee, the legal estate, according to its quality, will 
 devolve upon the heir or the personal representative of the deceased 
 trustee.(c)' 
 
 If the original trustee have accepted the trust in his lifetime, it is 
 conceived that it is no longer competent for his heir or personal re- 
 presentative to make a valid disclaimer after his death ; although the 
 heir or representative might unquestionably apply to the court to 
 have other trustees appointed in his place, without rendering himself 
 liable to the costs of that proceeding.(cZ) But where the trust has 
 not been accepted by the original trustee, there seems to be no rear 
 son, why a disclaimer may not properly be made by his heir or repre- 
 sentative ; although the point does not appear to have been ever 
 expressly decided.(e) 
 
 r*R04n *Upon the marriage of a female trustee the legal interest 
 '- in the trust property will become vested in the husband, 
 
 either wholly or partially, according to the nature of the estate. If 
 it consist of chattels personal in possession, they will devolve upon 
 
 (6) Mansell v. Mansell, Wilm. 36; 406; 13 Sim. 91, and post, 489. [Pow- 
 
 Peyton v. Beang, 2 P. Wms. 626 ; Town- ers.] 
 
 send V. Wilson, 1 B. & Aid. 608; Dyer, (c) Stacey v. Elph, 1 M. & K. 199; 
 
 177, PI. 32 ; see Sharp v. Sharp,'^2 B. & ante, Pt. I. Div. IV. Ch. I. Sect. I. 
 
 Aid. 405; Cole v. Wade, 16 Ves. 27; {d) Ante, Pt. I. Div. IV. Ch. II. 
 
 Hall V. Dewes, Jac. 189; Bradford v. Sect. I. 
 
 Belfield, 2 Sim. 264; 1 Sugd. Power, (c) Goodson u. Ellisson, 3 Euss. 583, 
 
 148, 152, 6th ed.; and see Cooke v. 7; ante, Pt. I. Div. IV. Ch. II. Sect. I- 
 
 Crawford, 11 Law Joum. N. S., Chanc. [p. 219, 222, and notes.] 
 
 112; Sheetz v. Unangst, ut supra. In New York, Michigan, and Wisoonein, 
 trusts do not pass to the heirs of the trustee, but vest in and are exercised by the 
 court. See ante, 190. In Pennsylvania, the trust estate descends to the heir at com- 
 mon law, and not to the statutory heirs. Jenks' lessee v. Backhouse, 1 Binn. 91. 
 With regard to executors, the old rule is abolished in several of the States, 
 the trust devolving there on the administrator cum testamenio annexo. See post, 
 472, note. 
 
 ' The heir of a trustee becomes liable only prospectively, and is accountable 
 merely for his own management of the estate. Baird's Appeal, 3 W. & S. 459. 
 
THE ESTATE OF TRUSTEES. 427 
 
 him absolutely by the fact of marriage, unless it be otherwise ex- 
 pressly provided ; and if it consist of chattels real, the husband's 
 legal interest in them will be subject to the title of the wife by survi- 
 vorship. Where the trust property is real estate of inheritance, the 
 husband will take either an estate by curtesy, if he have had inheri- 
 table issue, or otherwise a bare estate during the life of his wife 
 jointly with her.' It has been already stated, that the husband of a 
 feme trustee is a trustee within Sir E. Sugden's act, 1 Will. IV. 
 c. 60.(/) 
 
 As the husband will be liable personally for any breach of trust 
 committed by his wife,(^) it must follow as a necessary consequence 
 that she cannot act in the administration of the trust without his con- 
 currence or consent.^ 
 
 The same principle, which prevents a surviving trustee or the de- 
 visee or heir of a sole trustee from exercising discretionary powers, 
 which are given only to the original ixustQQ personally, will also apply 
 a fortiori to restrain the husband of a feme trustee from exercising 
 any such power, where he is not expressly authorized to do so. 
 
 Where the/eme trustee has once accepted the trust, it would also 
 seem that the husband cannot by means of a disclaimer avoid the 
 estate cast upon him by the law : and this doctrine depends on the 
 same reasoning which prevents the heir of a trustee from making a 
 valid disclaimer, if his ancestor had accepted the trust in his lifetime. 
 
 If the feme have not accepted the trust, there can be no reason 
 why she and her husband may not execute a valid deed of disclaimer 
 of real estate duly acknowledged by her. Where the trust is of per- 
 sonal estate a disclaimer by the husband would of course operate upon 
 the whole legal interest. 
 
 There has been already occasion to observe, that the property, 
 vested in a trader as trustee, does not devolve to his assignees upon his 
 bankruptcy, and the bankrupt will therefore retain his character of 
 trustee, until another be appointed on application in his place. (A) 
 
 We have also seen, that upon the refusal or renunciation of one of 
 several trustees, his estate, and whole interest, with the powers an- 
 nexed to it, will devolve upon those who accept the office.(t) 
 
 (/) Moore D.Vinten, 10 Law Joum. 459. See Redwood v. Reddick, 4 
 
 N. S., Ghano. 345; 12 Sim. 161; S. C. Munf. 222.] 
 
 p. 300, preceding chapter. (Ji) Ante, Ch. Ill, and post, p. 530, 
 
 (g-) See Palmer v. Wakefield, 3 Beav. Bankruptcy. [Bunce v. Vandergrift, 8 
 
 227. [Even before marriage, so far as Paige, 37.] 
 
 assets; Moon ». Henderson, 4 Desaus. (i) Ante, Pt. I. Dir. IV. Ch. II. 
 
 Sect. 3, p. 225. 
 
 ' In Chew v. Comm. of Sonthwark, 5 Rawle, 160, it was held, that a mere 
 naked seisin of the freehold by the wife, as trustee, would not support a tenancy 
 by the curtesy, though she had also a beneficial interest in the reversion. 
 
 ^Carrol v. Connett, 2 J. J. Marsh. 195; Elliott v. Lewis, 3 Edw. Ch. 40. 
 
[*305] *PAET III. 
 
 OF THE DISCHARGE OP THE OFFICE OF 
 TRUSTEE. 
 
 DIYISION I. 
 
 OF THE POWERS AND DUTIES OF TRUSTEES. 
 
 CHAPTER I. 
 
 OF THE POWERS AND DUTIES OP CO-TRUSTEES, AS 
 BETWEEN EACH OTHER. 
 
 Of the necessity for the Con- II. Of the Liability op one 
 
 CURRENCE OF ALL THE TrTJS- TRUSTEE FOR THE ACTS OF THE 
 
 TEES [305]. OTHERS [309]. 
 
 I.— WHERE THE CONCURRENCE OF ALL THE TRUSTEES IS REQUISITE 
 IN ACTS FOR THE ADMINISTRATION OF THE TRUST. 
 
 Trustees have all equal power, interest, and authority, with re- 
 spect to the trust estate. — As a general rule, therefore, they cannot 
 act separately, but they must all join in any sale, lease, or other dis- 
 position, of the trust property, and also in receipts for money, pay- 
 able to them in respect of their office, (a)* And in this respect they 
 
 (a) Crewe v. Dicken, 4 Ves. 97 ; Chambers v. Minchin, 7 Ves. 198 ; Ex 
 
 Fellows V. Mitchell, 1 P. Wms. 83 ; S. parte Rigby, 19 Ves. 463 ; 2 Fonbl. Eq. 
 
 C. 2 Vern. 516 ; Churchill t). Lady Hob- B. 2, ch. 7, sec. 5; 1 Cruis. Dig. Tit. 12, 
 
 son, id. 241; Leigh v. Barry, 3 Atk. ch. 4. sec. 39. 
 584; Belchier v. Parsons, Ambl. 219; 
 
 ' Vandever's Appeal, 8 W. & S. 405 ; Latrobe v. Tieman, 2 Mary. Ch. Deo. 
 480; Ridgely v. Johnson, 11 Barb. S. C. 527; Sinclair t). Jackson,^8 Cow. 544; 
 Franklin v. Osgood, 14 John. 560 ; Hill v. Josselyn, 13 Sm. & M. 597 ; Cox v. 
 Walker, 26 Maine 504. It was said, in Vandever's Appeal, however, that there 
 might be a case of necessity, in which the concurrence of a co-trustee would be 
 
WHERE CONCUREENCE IS REQUISITE. 429 
 
 differ materially from executors, vrho have a joint and entire autho- 
 rity, and any one of whom may effectually bind, or dispose of, the 
 assets by his own individual act.(6) 
 
 The principle of law, as applied to the case of trustees, as well as 
 other persons, holding as joint-tenants, is, that every act done by 
 one of them for the benefit of the whole, shall bind the others, but 
 not those acts, which might tend to their prejudice.{c) On this prin- 
 ciple one trustee alone could not have signed the certificate of a 
 bankrupt in respect of debt due to him and his co-trustee, (cZ) accord- 
 ing to the Bankrupt *Law previously to the recent act.(e) p^q/^f^-I 
 And so where there are three joint trustees of an estate, a, '- -^ 
 notice to quit, given to a tenant by two of them only, is bad, even 
 though the name of the third be joined in the notice, and he afterwards 
 adopt it, and join in the demise in ejectment.(/) The reason is, 
 that these acts need not necessarily have been for the benefit of the 
 others. 
 
 If, however, one of several trustees be duly authorized by the others 
 to act as their agent, the legal maxim of " quifacitper alium facit 
 per se" applies ; and any act of the agent alone, which does not 
 exceed his authority, will be binding on the others.(^) 
 
 But where the act is for the benefit of the estate, the act of one 
 will be binding on all. — And on this ground the entry or re-entry 
 of one of several joint trustees of an estate, — or the grant of livery 
 of seisin, — or a surrender by a lessee, — to one of them, will enure 
 for the benefit of all. (7i) 
 
 And so the possession or seisin of one or more of several joint 
 trustees operates as the possession of the others. And the Statutes 
 of Limitation will not begin to run against the cestui que trusts as 
 
 (6) Touchst. 484;Bac.Abr. (Exors.) (/) Right d. Fisher v. CutheU, 5 
 
 C. 1; Wentw. Off. Ex. 206, 14th ed.; East, 491. 
 
 2 Wms. Exors. 620. [See post, 309, (g) Ex parte Rigby, 19 Ves. 343 ; 
 
 note.] and see Goodlitle d. King v. Woodward, 
 
 (e) Rudd V. Tucker, Cro. Eliz. 803. 3 B. & Aid. 689 ; Handbury v. Kirkland, 
 
 (c() Ex parte Rigby, 19 Ves. 463. 3 Sira. 265; 1 East, 568; 1 B. & Aid. 
 
 [See Vandever's Appeal, 8 W. & S. 85. [See Sinclair u. Jackson, 8 Cow. 
 
 405.] 543.] 
 
 (e) 5& 6 Vict. c. 122, see s. 39. (A) 1 Inst. 49, b.; id. 192, a.; 6 Mod. 
 
 44; 2 Cruis. Dig. Tit. 18, ch. 1, s. 60, 1. 
 
 presumed. In Ridgely v. Johnson, 11 Barb. S. C. 527, it was held that where 
 there is one deed in the name of three trustees, but executed by only two, 
 the burden of proof is on the purchaser to show that the third was dead at the 
 time of execution. But a payment by a mortgagor to one of two trustees, as- 
 signees of the original mortgagee is good. Bower v. Seeger, 8 W. & S. 222. Where 
 a lease is granted by one only of several trustees it will not, as in the ordinary 
 case of joint tenants, be' operative to convey his own moiety. Sinclair v. Jackson, 
 8 Cowen, 544. 
 
430 ■WHERE THE CONCUERBNCE OF ALL 
 
 long as one of the trustees is in possession, (i) The alteration of the 
 law on this point by the statute 3 & 4 Will. IV. c. 27, affects those 
 joint-tenants only, who have the beneficial as well as the legal own- 
 ership.— rThe 12th section of that act provides, that where one or 
 more of several joint-tenants shall have been in possession of the 
 entirety, or more than his proper share of an estate, for his own 
 benefit, or for the benefit of any person other than the persons enti- 
 tled to the other shares, such possession shall not be the possession of 
 the other joint-tenants. This enactment, therefore, cannot apply to 
 the possession of one of several co-trustees, who, if they hold as 
 joint-tenants, must all hold for the joint benefit of the same cestui 
 que trusts. 
 
 An acknowledgment of a debt by one of several joint trustees will 
 not take it out of the Statute of Limitations, as regards the others ;(A) 
 but part payment made by one will revive the remedy against them 
 all.(0 
 
 It has been decided, that notice of a charge or incumbrance on 
 the trust estate, given to one of several co-trustees, is sufiBcient to 
 perfect the equitable title of the incumbrancer. (m) And it is imma- 
 terial, that the incumbrancer is himself the trustee, who thus re- 
 ceives the notice for his own benefit.(w) However, the effect of such 
 a notice only continues as long as the party to whom it is given 
 continues to hold the ofiice of trustee ; and after his death, or retire- 
 r^QftTi '^^°*» ^ subsequent incumbrancer *may gaina preference, by 
 L -■ giving notice to the then existing trustees ; if in the mean 
 time they have received no notice of the first charge.(o) 
 
 No case has arisen in which a notice to one of several trustees has 
 been held to bind the others, so as to render those who have not re- 
 ceived notice personally liable to the incumbrancer for any subse- 
 quent disposition of the trust estate by them ; and it appears diffi- 
 cult to contend successfully, that a notice so limited should have such 
 an operation. It is, therefore, for many reasons, advisable that no- 
 tice of an equitable incumbrance, &c., should in every case be given 
 to all the trustees. 
 
 A trustee who has disclaimed or renounced — or upon the same 
 
 (i) Att.-Gen. v. Flint, Vice-Chancel- see re Raikes, 4 D. & Ch. 412; Ex 
 
 lor Wigram, [4 Hare, 147.] parte Vauxhall Bridge Company, 1 Gl- 
 
 (k) See 9 Geo. IV. c. 14, s. 1 ; Chitty, & J. 106 ; Duncan v. Chamberlaine, 11 
 
 Contr. 640, 50. Sim. 123. [ But see Martin u Sedgwick, 
 
 [I) Whitecomb v. Whiting, Dougl. 9Beav.333;HoltiJ.DeweIl,4Haie,446.] 
 
 652; Burleigh v. Stott, 8 B. & Cr. 36; (n) Smith v. Smith, 2 Cr. & Mees. 
 
 Pease v. Hurst, 10 B. & Cr. 122; Per- 232]; see re Raikes, 4 D. & Ch. 412; 
 
 ham V. Raynall, 2 Bingh. 306. Duncan v. Chamberlaine, 11 Sim. 123. 
 
 (m) Smith v. Smith, 2 Cr. & Mees. (o) Timson v. Ramsbottom, 2 Keen, 
 
 232; Meux v. Bell, 1 Hate, 73; and 35; Meux i;. Bell, 1 Hare, 97. 
 
THE TEUSTEES IS REQUISITE. 431 
 
 principle, one who has been duly discharged under the power con- 
 tained in the trust instrument, or by a decree of the court — need 
 not join in any sale or other disposition of the estate, or in receipts 
 for the trust moneys. (p) And it is immaterial that those acts are 
 directed to be performed by the particular trustees by name ; for a 
 gift to several individuals nominatim upon trusts is a gift to those 
 only who accept the trust ; and they consequently take full power to 
 perform all ministerial acts consequent upon the ofl5ce.(5') 
 
 But a trustee, who has once acted or accepted the trust, and has 
 not been properly discharged from it, must join with the other trus- 
 tees in the receipts to purchasers or other persons, requiring a dis- 
 charge for the payment of trust money ; and it is immaterial that he 
 has parted with the possession of the legal estate, (r) And it is on 
 this principle, that a person, who executed a release of the estate, 
 devised to him as a trustee, instead of making a simple disclaimer, 
 has been held to be a necessary party to a receipt to a purchaser.(8) 
 Where, however, a mere discretionary power, or one simply col- 
 lateral, has been given to several persons expressly hy name, and to 
 them only ; all the individuals named must join in exercising it ; and 
 any act by those only, who have accepted the trust, will not be a 
 valid execution of the power.(<) But it is otherwise where the power 
 is not strictly personal, but is annexed to the office of trustee.(M) 
 
 In ordinary cases of private trust there does not appear to be any 
 established rule, according to which the decision or opinion of the 
 majority in number of the trustees would be binding on the dissen- 
 tient minority. The principle that all co-trustees have equal power 
 and authority would seem to be directly at variance with the existence 
 of any such rule. 
 
 All the trustees are of course bound to concur in every ministerial 
 act requisite for the discharge of the trust ; and those who should 
 refuse to do so without sujBScient reason, would be compelled to act 
 by the court, whose decree would also visit the offending trustees with 
 the costs occasioned by their conduct.(a;) But where the act is a 
 matter of pure personal *discretion, we shall see presently, r-^nr^r.-. 
 that the court cannot in general interfere to control a trustee L ^ 
 
 (p) Flanders ». Clark, 1 Ves. 9; Smith quaere? and see Lord Braybroke v. In- 
 
 V. Wheeler, 1 Ventr. 128: Hawkins v. skip, 8 Ves. 417. 
 
 Kemp. 3 East, 410; Adams u. Taunton, («)Crewev.Dicken, 4Ves. 97; Small 
 
 5 Mad. 435; Worthington v. Evans, 1 v. Marwood, 9 B. & Cr. 307. 
 
 S. & St. 165. [See ante, 226, post, 473. (t) See 1 Sugd. Pow. 138; et post, 
 
 In Worthington v. Evans, the trustee Chap. [Powers, p. 471,485.] 
 
 had never acted:] („) Worthington v. Evans, 1 S. & St. 
 
 (5) Adams v. Taunton, 5 Mad. 435, 8. 165; Clarke v. Parker, 19 Ves. 19. 
 
 (r) 2 Sugd. V. & P. 50, 9th ed. ; the (x) Vide post, p. 545, [Suits against 
 
 case of Hardwick v. Mynd, 1 Anstr. Trustees] and [Costs,] p. 551. 
 109, is of a contrary tendency, sed 
 
432 WHERE CONCUEEBNCE IS REQUISITE. 
 
 in the bona fide exercise of his discretion ; and there seems to be no 
 remedy against one or more of several co-trustees, who without any 
 corrupt motive refuse to concur with their co-trustees in any discre- 
 tionary act.(«/) The proof of fraudulent or improper conduct would 
 of course give the court jurisdiction. (s) 
 
 However, in cases of charitable and public trusts, where the num- 
 ber of trustees is usually greater, the decisions of the majority will 
 be binding on the rest ; for otherwise, it would be in the power of one 
 dissenting trustee to embarrass and possibly disappoint the working 
 and object of the trust. (a) 
 
 It is almost needless to add, that if the trust instrument contain 
 express directions for the administration of the trust according to 
 the decision of the majority of the trustees, the dissentient minority 
 will be compelled to give effect to the decision of the majority. For 
 instance, where an advowson is vested in trustees, in trust to prevent 
 the person whom the majority approve of, those trustees, who voted 
 for an unsuccessful candidate, must join in the presentation of the 
 one' chosen by the majority.(J) 
 
 One of several trustees cannot prove a debt, due from a bankrupt 
 to the trust estate, without an order of the court ; although one of 
 several executors may so prove without any order.(c) 
 
 One of two or more executors, or trustees, may apply for the tax- 
 ation of a bill of costs, which had been paid by the other.(d) 
 
 At law, any one of several joint-tenants has the power to receive 
 and give discharges for the whole of the rents and income arising 
 from the property.' Therefore, one of several co-trustees of stock in 
 the public funds may receive the dividends on the whole sum ;(e) for 
 the bank looks only to the legal title.(/) And the rule is the same 
 as to the dividends on shares and other similar payments. And so 
 the rents of a trust estate may be paid to, and received by, one or 
 more of several trustees.((7) Although it would be different, if the 
 tenants had received notice not to pay their rents except upon the 
 receipt of all the trustees. 
 
 (t/) Clark V. Parker, 19 Ves. 1 ; over- (6) Att.-Gen. v. Cuming, 2 N. C. C. 
 
 ruling Harvey ■». Hasten, 1 Atk. 375; 139. 
 
 vide post, 485, [Discretionary Powers] ; (c) Ex parte Smith, 1 Deao. 385, and 
 
 the court will eometimes act in such a M. & A. 586 ; Ex parte Phillips, 2 Deao. 
 
 case, seeTomliut). Hatfield, 12 Sim. 167. 334. 
 
 (z) Ibid. (d) Hazard v. Lane, 3 Mer. 285; see 
 
 (a) Att.-Gen. ■«. Scott, 1 Ves. 413; Lockhart t). Hardy, 4 Beav. 224. 
 
 Wilson V. Dennisoh, Arabl. 82 ; Wil- (e) Williams v. Nixon, 2 Beav. 472. 
 
 kinson v. Malin, 2 Tyr. 544 ; Att.-Gen. (/) See Williams v. Nixon, 2 Beav. 
 
 V. Shearman, 2 Beav. 104; Att.-Gen. v. 472. [But see note ante, p. 174.] 
 
 Cuming, 2 N. C. C. 139. (g-) Townley v. Sherborne, Bridg. 35. 
 
 ' See Husband v. Davis, 4 Engl. L. & Eq. 342 ; 10 C. B. 645. 
 
OF THE LIABILITY OF ONE TRUSTEE, ETC. 433 
 
 Where an account at a banker's is opened in the name of two or 
 more trustees, it is in their power to require that the cheques should 
 be signed by all or any one or more of their number. However, we 
 shall presently see that a trustee would be held personally liable for 
 any loss, if he diminished the security of the trust fund by placing 
 it in the exclusive power of any one or more of his colleagues.(A) In 
 strictness, therefore, it is the duty of trustees to require, that the 
 cheque should bear the joint signature of all the trustees. Where 
 there are several trustees, however, this *might be regarded r^qrvq-i 
 as a matter of extreme and over caution, which would more- ^ -^ 
 over be productive of much inconvenience in the working of the 
 trust. And most trustees would probably be satisfied with requiring 
 the signature of two or three of their number only. 
 
 11.— OF THE LIABILITr OP A TRUSTEE FOR THE ACTS OP HIS 
 CO-TRUSTEES. 
 
 Where more than one trustee is appointed, and all have accepted 
 the trust, it is the duty of each one to protect the trust property 
 from the acts of his colleagues. And if through the neglect of this 
 duty, any one or more of 'the trustees have been enabled to misap- 
 propriate, or otherwise occasion any loss to, . the trust estate, the 
 others, as a general rule, will be personally answerable to the cestui 
 que trusts for the amount of the loss ; although they had not been 
 actively engaged in, or benefited by, the breach of trust.* 
 
 (h) See next sect, and Walker -y. Symonds, 3 Sw. 1, 58; Clough v. Bond, 3 M. 
 & Cr. 490. 
 
 ' The liability of co-trustees and executors for each other's acts, does not 
 appear to have been always as rigorously enforced in the United States, as the 
 later English authorities stated in the text would justify. Judge Story, in his 
 Commentaries on Equity Jurisprudence (§ 1280), uses the following language: 
 " The general rule is, that they are responsible only for their own acts, and not 
 for the acts of each other, unless they have made some agreement, by which 
 they have expressly agreed to be bound for each other, or they have by their 
 voluntary co-operation or connivance, enabled one or more to accomplish some 
 known object in violation of the trust." The rule in these words was adopted 
 and acted on in Taylor v. Roberts, 3 Alab. 86; State v. Gutlford, 18 Ohio, 509; 
 Latrobe v. Tiernan, 2 Maryl. Ch. 480. And; to the same effect, see Taylor v. 
 Bonham, 5 How. U. S. 233; Worth v. McAden, 1 Dev. & Batt. Eq. 199; Boyd v. 
 Boyd, 3 Grattan, 114; Glenn v. McKim, 3 Gill. 366; Stell's Appeal, 10 Barr, 149; 
 Banks V. Wilkes, 3 Sandf. Ch. 99. As, in the case of trustees and guardians, a 
 joinder in receipts and discharges, in the course of the execution of the trust, is 
 a necessary act, such joinder, though prima fade evidence of the receipt of the 
 money by all, is open to explanation; and those only into whose actual posses- 
 sion or control the money has come, will be held re.sponsible for its subsequent 
 misapplication. Jones' Appeal, 8 W. & S. 147 ; Wallis v. Thornton, 2 Brock, 434 ; 
 Monell V. Monell, 5 Johns. Ch. 283; Sterrett's Appeal, 2 Penn.Kep.419; Deade- 
 
 28 
 
434 OP THE LIABILITY OF ONE TRUSTEE 
 
 For instance, if a trustee stand by and suffer his co-trustee to 
 retain the exclusive possession of the trust funds, and they are lost 
 
 rich V. Cantrell, 10 Yerg. 264; Kip v. Denniston, 4 Johns. Rep. 23. In Monelb, 
 Monell, 5 J. C. R. 263, it was ruled, however, that this presumption from joinder 
 in receipts could not be rebutted by the defendant's answer alone {accord 
 MoCubbin v. Cromwell, 7 G. & J. 157), and its effect was treated as more con- 
 clusive than other cases and the subsequent decision of Manahati v. Gibbons, 
 19 Johns. 427, seem to warrant. (See American Note to Townley v. Sherburne, 
 
 2 Lead. Ca. Eq. pt. ii. p. 307, 1st ed.) With regard to executors whose concur- 
 rence in acts relating to the estate is not necessary, a different rule exists; audit 
 has been said to amount to an agreement on the part of each to be answerable 
 for the credit of the others. Johnson v. Johnson, 2 Hill's Eq. 290; Jones' Ap- 
 peal, 8 W. & S. 147 ; Monell v. Monell, 5 J. C. R. 288; see Manahan v. Gibbons, 
 19 Johns. 427. But in Stell's Appeal, 10 Barr, 152, it was considered that this 
 distinction between executors and other trustees has been broken down, andthat 
 no intent to be jointly chargeable is deducible from the mere fact of joining in a 
 receipt. Ochiltree v. Wright, 1 Dev. & Batt. Eq. 336; McNair's App., 4 Rawle, 
 155; accord. Wherever it is necessary and convenient for the purposes of the 
 trust, that a part or all of the business thereof should be committed to the charge 
 of one or more of the co-trustees, the others, not cognizant of or concurring in 
 any way, in a misapplication of the funds, will not be held liable. Jones' App., 
 8 W. & S. 147; State v. Guilford, 18 Ohio, 593; Deaderich v. Cantrell, 10 Yerg. 
 264; but see contra. McCubbin v. Cromwell, 7 G. & J. 168. But if the acting 
 trustee is known to be a person unfitted for the management of the trust, or is 
 suffering under pecuniary embarrassment, the co-trustees will be responsible, if 
 they permit money to be received by him, or to remain in his hands. Evans', 
 Estate, 2 Ashm. 470 ; Ringgold v. Ringgold, 1H.& G. 11; State t).Guilford,150hio, 
 593; 11 S.&R.71. Mereslightsuspicions, however, are not sufficient to require the 
 non-acting trustees to interfere. Jones' App., 8 W. & S. 147. A trustee who has 
 actually received money or securities, and pays or assigns them to his colleague 
 without necessity, becomes thereby responsible. Mumfordi;. Murray, 6 J. C. E. 1; 
 Monell V. Monell, 5 J. C. R. 283 ; Clark v. Clark, 8 Paige, 153; Glenn v. McKim, 
 
 3 Gill, 366; Evans' Estate, 2 Ashm. 470; Graham v. Davidson, 2 Dev. & Batt, 
 Eq. 1 55 ; Ringgold v. Ringgold, 1 Harr. & Gill, 1 1 ; Graham u. Austin, 2 Gratt. 273, 
 So even in the case of executors who are, as has been observed, prima facie re- 
 sponsible only for their own acts. Mesick v. Mesick, 7 Barb. S. C. 120; Edmonds 
 V. Cranshaw, 14 Pet. 166; Worth v. McAden, 1 Dev. & Batt. Eq. 199 ; Johnson!). 
 Johnson, 2 Hill's Eq. 277 ; Sterrett's App,, 2 Penn. R. 419. With regard to the 
 effect of a .joinder in sales, &c., of the trust property, the authorities are not per- 
 fectly agreed. From Spencer v. Spencer, 11 Paige, 299; McCubbin «. Cromwell, 
 7 Gill & Johns, 157 y Ringgold v. Ringgold, 1 Harr. & Gill, 1 1 ; Deaderich v. Can- 
 trell, 10 Yerg, 263; Wallis v. Thornton, 2 Brockenb, 434; Hauser «, Lehman, 2 
 Ired, Eq, 594, it appears that all are responsible for the collection and investment 
 of the proceeds, though but one actually receives; but in Kip i), Denniston, 4 
 Johns. R, 23, it was held that the receipt in a deed by two trustees for the pur- 
 chase-money, would not make the one who did not receive liable ; and see Jones' 
 App., 8 W. & S, 347; Am, Notes to Townley v. Sherburne, 2 Lead, Ca, Eq. 306, 
 So in Boyd v. Boyd, 3 Gratt, 114, it was held that where several executors and 
 trustees joined in a sale necessary to the purposes of the trust, but the proceeds 
 of the sale were received by one who was a man of fair character and apparently 
 ample fortune, but who subsequently turned out insolvent, the others would only 
 be liable in case of fraud, which must be distinctly and conclusively proved. 
 Where a proper investment has been once made, however, the responsibility of 
 
FOR THE ACTS OP THE OTHERS. 435 
 
 or wasted by the co-trustee, the non-acting trustee will be decreed 
 personally to make good the loss ; for it was his duty to have inter- 
 fered and protected the fund from the misapplication ; and by his 
 acquiescence he was directly accessory to the loss.(i) However, this 
 knowledge and acquiescence must be proved against the trustee.(^) 
 
 In Booth V. Booth, (?) a testator bequeathed his personal estate to 
 his partner and to B. in trust, to invest for the benefit of his wife and 
 children. B., together with his co-trustee, the surviving partner, 
 proved the will, and thus accepted the trust, but he did not actively 
 interfere ; the other and sole acting trustee, with B.'s hnc^ledge and 
 acquiescence, retained the testator's money in the trade for several 
 years, instead of investing it, as directed by the will. Upon the 
 failure of the business, the trust fund was lost, and it was held by 
 Lord Langdale, M. R., that both the trustees were equally respon- 
 sible for the loss.(?) 
 
 In Lincoln v. Wright, (m) the testator gave the residue of his 
 estate to trustees, to be invested for the benefit of his daughter and 
 her children. Two of the executors and trustees suffered the ascer- 
 tained residue to remain in the hands of their co-trustee, and they 
 were decreed to make good the loss, which was occasioned by his 
 bankruptcy.(wi) 
 
 It is still more evident, that if a trustee connive at a breach of 
 trust committed by his co-trustee, or use any artifice to conceal it from 
 
 (i) Williams v. Nixon, 2 Beav. 475. 370 ; Fulton v. Gilmour, RoUsj 15th Fe- 
 
 (A) Williams v. Nixon, ib. bruary, 1845, MS. [On another point, 
 
 {l) Booth t). Booth, 1 Beav. 125. 8 Beav. 159; see Estate of Evans, 2 
 
 (m) Lincoln v. Wright, 4 Beav. 427; Ashm. 470; Pirn v. Downing, 11 S. & 
 
 and see James v. Frearson, 1 N. C. C. R. 71.] 
 
 the non-acting trustees ceases. Glenn v. McKim, 3 Gill, 366. Where a trustee 
 has renounced, it is <i fortiori necessary to show that the fund has ever been in 
 his hands. Clagett v. Hall, 9 Gill & Johns. 80. In Deaderich v. Cantrell, 10 Yerg. 
 264 ; followed in Thomas v. Scruggs, Id. 400, a distinction is taken between dis- 
 cretionary and directory trusts, as to the nature of the joint liability above con- 
 sidered. In the former, which comprehend cases where no direction is given 
 as to the manner in which the trust fund is to be invested, it was said to be neces- 
 sary, to charge a co-trustee, to show some act by which it was obtained by him, or 
 some act of commission, amounting to gross neglect, in permitting the fund to 
 be wasted by his colleague. In the latter class, however, which are those where 
 by the terms of the trust the fund is to be invested in a particular manner, till 
 the period arrives at which it is to be appropriated, if the fund be not invested, 
 or be invested in a different manner from that pointed out, it is an abuse of trust. 
 for which all the trustees are responsible. In all these cases, however, there is 
 no liability of one joint trustee for the mere misfeasance or nonfeasance of an- 
 other, unless it be shown that that other, from insolvency, is unable to answer 
 for himself. Stell's Appeal, 10 Barr, 153. See this subject fully discussed in the 
 notes to Townley v. Sherburne, 2 Lead. Ca Eq., pt. ii. page 306; Story's Eq. 
 § 1280, &c. 
 
436 OP THE LIABILITY OP ONE TRUSTEE 
 
 the cestui que trust, he will himself be involved in the same liability. 
 Thus, where one of two trustees had sold out a sum of trust stock, 
 and the other knew of it and concealed it from the cestui que trust, 
 they were both held equally liable upon the loss of the fund.(?i) And 
 in another case, where one of two trustees retained a sum of trust 
 P ^ . money in his *possession, Swi the other joined in a fake repre- 
 L J sentation to the cestui que trust, that it was invested in stock 
 in their joint names, both trustees were declared responsible.(o) 
 
 And it is the duty of trustees to obtain every information from 
 their co-trustee as to the situation and disposition of the trust pro- 
 perty ; and if they neglect this precaution, they will become answer- 
 able for any misfeasance on the part of the acting trustee.(p) 
 
 Again, if a trustee join in doing any act, or in carrying into effect 
 any arrangement, by which the trust property is taken out of the 
 joint protection and control of all the trustees, and is placed within 
 the sole power and at the mercy of one or more of their number, by 
 whom it is lost, it is clear that the trustee so acting, will, as a gene- 
 ral rule, be held responsible for all the consequences ; for by his con- 
 duct he diminished the security of the property, and was thus directly 
 accessory to the loss that ensued. The exceptions to this rule will 
 be considered presently. 
 
 Thus, if two or more trustees join in the sale of the trust estate, 
 or the conversion of the existing investments, and suffer the proceeds 
 to be received and retained by one or more of their number exclu- 
 sively ;{q) or if they pay, or make over, the trust funds or property 
 in a similar manner ;(»•) or execute a joint power of attorney ;(«) or 
 join in signing a draft or order ;(i) enabling one or more of their co- 
 trustees exclusively to receive and deal with the property ; or suffer 
 the trust fund to be invested in bills payable to one or more of their 
 number ;(m) or to be paid into a bank to the account of two of them, 
 
 (n) Boardman v. Mosman, 1 Bro. C. C. C. 16; Curtis v. Mason, 12 Law 
 
 C. 68. Journ. N. S. Chanc. 442. 
 
 (o) Bate V. Scales, 12 Ves. 402. (r) Keble v. Thompson, 3 Bro. C. C. 
 
 (p) Walker «. Symonds, 3 Sw. 58. Ill; French i;. Hobson, 9 Ves. 103; 
 
 (g) Sadler D.Hobbs, 2 Bro. C.C. 114; Shipbrook •«. Hinchinbrook, 11 Ves. 
 
 Scurfield v. Hawes, 3 Bro. C. C. 90; 252; Joy v. Campbell, 1 Sch. & Lef. 
 
 Chambers v. Minchin, 7 Ves. 198 ; Ship- 341 ; Moses «. Levi, 3 Y. & Coll. 359, 
 
 brook V. Hinchinbrook, 11 Ves. 252; 367; Clough «. Bond, 3 M. &Cr. 497; 
 
 Brioe v. Stokes, id. 319; Underwood Langford «. Gascoyne, 11 Ves. 333. 
 V. Stevens, 1 Mer. 713: Hanbury v. (s) Harrison v. Giaham, 1 P. Wms. 
 
 Kirkland,3Sim.265;BradweU'«.Catch- 241, n.; Hanbury v. Kirkland, 3 Sim. 
 
 pole, 3 Sw. 78, n.; Clough v. Bond, 3 265; Hewett v. Foster, 6 Beav. 259. 
 M. & Cr. 496; Williams v. Ni.xon, 2 {t) Sadler u. Hobbs, 2Bro. C.C.114; 
 
 Beav. 472 ; Broadhurst v. Balguy, 1 N. Broadhurst v. Balguy, 1 N. C. C. 16. 
 
 (tt) Walker v. Symonds, 3 Sw. 1, 58. 
 
FOR THE ACTS OF THE OTHERS. 437 
 
 to the exclusion of a third •,{x) in all these cases, the trustees so acting 
 will be personally responsible for any loss occasioned by the acts of 
 those into whose power they have thus committed the trust property. 
 
 If, however, it be necessary or proper for the due discharge of the 
 trust, that the trust property should be committed exclusively to the 
 charge of one or more of the co-trustees, the others will not be held 
 liable for the subsequent acts of those to whom it has been so com- 
 mitted. In Clough V. Bond,(2/) it was observed by Lord Cottenham, 
 " When the loss arises from the dishonesty or failure of any one to 
 whom the possession of part of the estate has been intrusted, neces- 
 sity, wMch includes the regular course of business in administering 
 the property, will in equity exonerate the personal representative. 
 But if without such necessity he be instrumental in giving to the 
 person failing possession of any part of the property, he will be 
 liable, although the person possessing it be a co-executor or co- 
 administrator." 
 
 *Thus in an early case,(2!) a legacy of 6001. was given to 
 three trustees, in trust to build an almshouse. R., one of ■- ^ 
 the trustees resided in London, the other two lived in Cornwall. R. 
 alone received payment of the legacy, although, to satisfy the tes- 
 tator's executors, the other two trustees joined in the receipt. 400?. 
 was paid at different times by R., by the direction of the other trus- 
 tees for building, &c. ; but four years after the receipt of the money 
 he became insolvent. On a bill being filed to charge the other two 
 trustees with the loss of the 200Z., the Lord Chancellor held, that 
 R. alone was chargeable, and in the course of his judgment he 
 observed, that the payment to R. only was a reasonable thing, R. 
 being the only trustee who lived in London, where the money was 
 paid.(a) 
 
 And in Townley v. Sherborne,(a) it was laid down by the Lord 
 Keeper, after much deliberation and with the advice of the assistant 
 judges, that where lands or leases are conveyed to two or more trus- 
 tees, and one of them receives all or the most part of the profits, his 
 co-trustees shall not be charged for the receipts of the other. And 
 in the same case it was said to be no breach of trust to permit one 
 of the trustees to receive all or most part of the profits, it falling out 
 many times that some of the trustees live far from the lands, and are 
 put into the trust out of other respects, than to be troubled with the 
 receipt of the profits. 
 
 So, in Ex parte Griffin,(6) A. one of the assignees of a bankrupt 
 
 (a:) Clough v. Bond, 3 M. & Cr. 490. (a) Bridgman, 35. 
 (y) 3 M. & Cr. 497. (6) 2 Gl. & J. 114. 
 
 («) Att.-Gen. v. Randell, 2 Eq. Cas. 
 Abr. 742; 7 Bao. Abr. 184, 6th ed. 
 
438 OE THE LIABILITY OF ONE TEUSTBE 
 
 signed the cheques upon the banker for a dividend, and delivered 
 them to B. his co-assignee, for him to sign them, and deliver them 
 to the creditors. B. signed the cheques, -which were then stolen out 
 of his desk and payment received from the bankers. It was held by 
 Sir J. Leach, that the signature of the cheques by A. and his deli- 
 very of them to his co-assignee, was required for the purposes of 
 convenience, and was done in the proper execution of his duty of a 
 trustee, and consequently that he was not responsible for the subse- 
 quent loss. Although this was a case affecting assignees and not 
 trustees strictly so called, the principle of the decision is precisely 
 the same, and was treated as such by the learned judge. 
 
 Upon the same principle, where one of two executors had paid a 
 sum of 1,200Z. to his co-executor, who resided in the country, for the 
 purpose of discharging the testator's debts, which were owing to per- 
 sons in his immediate neighborhood ; and the co-executor died insol- 
 vent, having only applied 787Z. in payment of the debts ; the whole 
 sum of 1,200?. was allowed to the other executor in his accounts, as 
 the payment was requisite in the ordinary management of execu- 
 tors. (c) 
 
 So in a recent case before Lord Langdale, M. R., two executors 
 and trustees were directed to pay certain annuities out of the divi- 
 dends of the trust estate, which consisted principally of stock, and to 
 invest and accumulate the surplus. Both executors proved the will, 
 but one only acted in the trust, and for several years continued to 
 receive and misapply the dividends, though this was unknown to his 
 co-trustee. The acting trustee became bankrupt, being largely in- 
 debted to the trust estate for the dividends misapplied by him. And 
 it was held the non-acting trustee *was not answerable for 
 •- -■ the breach of trust committed by his colleague. ((i) The 
 question appears to have been treated as one affecting executors, 
 although the duties of paying the annuities and investing the surplus 
 would seem to have clothed the parties with the character of trustees. 
 From the report of the judgment, his Lordship seems to have rested 
 his decision mainly on the fact of the want of knowledge or acquies- 
 cence on the part of the non-acting executor. But it is conceived, 
 that the necessity, or at any rate the convenience of the arrangement, 
 according to which the dividends were suffered to be received by the 
 trustee, who acted and was on the spot, would be quite suflScient to 
 support the decision, upon the principle now under discussion. In the 
 same case the non-acting trustee had joined in the sale of a sum of 
 450?. stock, the proceeds of which were received by the acting trus- 
 
 (c) Bacon v. Bacon, 5Ves. 331; and {d) Williams i;. Nixon, 2Beav. 472. 
 see Hovey v. Blakeman, 4 Ves. 596. 
 
EOR THE ACTS OF THE OTHERS. 439 
 
 tee alone, and the one who did not act was held clearly responsible 
 for the misapplication of that fund.(e) 
 
 In a very late case before Lord Lyndhurst,(/) two co-executors 
 and trustees had concurred in the sale of the testator's stock and 
 also of his real estate, and had both signed the receipts for the pur- 
 chase-money, but one of them only received the money, and after- 
 wards became bankrupt, being largely indebted to the trust estate. 
 His Lordship held, that the joint acts were necessary for the due 
 administration of the estate, and that the trustee who had not re- 
 ceived the money, was not answerable for the devastavit committed 
 by his co-trustee. (/) The facts in this case, however, are not stated 
 with sufficient precision in the only report of it hitherto published, 
 to admit of the extraction of the particular grounds on which his 
 Lordship's decision proceeded. 
 
 Upon the same ground of the necessity or convenience of the act, 
 there can be no question but that a trustee will be justified in autho- 
 rizing one or more of their number to receive or possess himself of 
 the trust fund, for the purpose of making an immediate payment to 
 the cestui que trusts, in discharge of the trust •,{g) or preparatory 
 to the completion of a purchase, or mortgage, or other new invest- 
 ment, which is in immediate contemplation. (A) 
 
 Where the trust funds are received by one trustee only, and that 
 receipt is justified by the circumstances, the other trustees will not 
 be held responsible for the loss of the fund, merely because they join 
 in the receipt for the money : for in transactions with trustees it is 
 usually essential for the security of the persons dealing with them, 
 that all the trustees should join in signing the receipts. (2)(1) 
 
 And in this respect there is a material distinction between trus- 
 tees and executors : for it is not in general necessary for all the 
 executors to join in *the receipts, and if they do so, they will p^„ „ 
 be chargeable for the money, although they did not receive "- ^ 
 
 (e) Williams v. Nixon, 2 Beav. 472, (i) Aply v.. Brewer, Free. Ch. 173 ; 
 
 477. Harden v. Parsons, 1 Ed. 147; Fellows 
 
 (/) Terrell v. Mathews, 11 Law ?;. Mitchell, 1 P. Wms. 81; ChurchilU. 
 
 Journ. N. S., Chanc. 31. Hodson, id. 241; Att.-Gen. v. Randell, 
 
 (g-) Curtis ■«. Mason, 12 Law Journ. 7 Bac. Abr. 184; Murrell v. Cox, 2 
 
 N. S. Chanc. 442; see Ex parte Griffin, Vern. 570; Leigh v. Barry, 3 Atk. 584; 
 
 2 Gl. & J. 114. Ex parte Belchier, Ambl. 219; Sadler 
 
 (A) Broadhurst v. Balguy, N. C. C. v. Hobbs, 2 Bro. C. C. 117; Terrell v. 
 
 16, 28; Hanbury v. Kirkland, 3 Sim. Mathews, 11 Law Journ. N. S., Chanc. 
 
 265. 31. 
 
 (1) In most of the early cases referred to in the text, the liability of a non- 
 acting trustee for the misfeasances of his co-trustee, appears to have been nar- 
 rowed to a very small compass, but those decisions could not safely be depended 
 upon as authorities at the present day. 
 
440 OP THE LIABILITY OF ONE TRUSTEE 
 
 it.{ky And hence it may occasionally be important to determine 
 where an executor has assumed the character of a trustee.(Z) The 
 reason of this distinction is, that executors are not bound to join in 
 the act. Therefore the distinction does not apply, where the concur- 
 rence of all the executors to an act is indispensable, as in the case 
 of the sale or transfer of any part of the property.(m) 
 
 It is to be observed, however, that where all the trustees have joined 
 in signing a receipt for a sum of trust money, there will arise a 
 prima facie inference that the money was received by all; and it is 
 for those who seek to discharge themselves, to rebut that inference, 
 by proving that they joined only for the sake of conformity. (n) 
 
 If a trustee, who joins in the receipt, have received any part of the 
 money, but it does not appear how much, he will be liable for the 
 whole ; for he is to blame for not keef)ing a distinct account, and the 
 case has been likened to a person throwing his corn or money into 
 another's heap, where the party who occasions the difficulty must bear 
 the loss.(o) 
 
 A trustee, who had been induced to place the trust property in the 
 hands of his colleague by his representations as to the necessity of 
 that act, will not be exonerated from his liability for the acts of his 
 co-trustee, if those representations turn out to have been unfounded, 
 and there was in fact no necessity for the act. For it is a trustee's 
 duty to inquire into and ascertain the truth. Thus a trustee, who 
 paid the trust funds to his co-trustee on his erroneous representation 
 that the money was wanted for the payment of debts ;(p) or for the 
 purpose of investment •,{q) or of being paid over to the party beneficially 
 interested ;(r) has been held liable for the loss occasioned by the sub- 
 sequent failure of the co-trustee without applying the money to those 
 purposes. 
 
 And although the circumstances may be such as at the time to jus- 
 
 (i) Sadler v. Hobbs, 2 Bro. C. C. (n) Chambers v. Minchin, 7 Ves. 
 
 114; Scurfield v. Hawes, 3 Bro. C. C. 186; Brice v. Stokes, 11 Ves. 324; sed 
 
 90; Chambers v. Minchin, 7 Ves. 198; vide Scurfield v. Hawes, 3 Bro. C. C. 
 
 Brice «. Stokes, 11 Ves. 324; Joy v. 90; Harden v. Parsons, 1 Ed. 147. 
 
 Campbell, 1 Sch. & Lei. 341 ; Doyle v. [Monell v. Monell, 5 J. C. R. 294.] 
 
 Blake, 2 Sch. & Lef. 242; Moses -u. (o) Fellows D.Mitchell, 1 P. Wins. 90. 
 
 Levi, 2 Y. & CoU. 359, 367; Terrell u. (p) Shipbrook v. Hinchinbrook, 11 
 
 Mathews, 11 Law Jour. N. S., Chanc. Ves. 252; Underwood v. Stevens, 1 
 
 31. Mer. 713; Hawett v. Forster, 6 Beav. 
 
 (/) See Chambers v. Minchin, 7 Ves. 259. 
 
 199. (5) Hanbury v. Kirkland, 3 Sim. 265; 
 
 (m) Terrell v. Mathews, ubi supra; Broadhurst v. Balguy, 1 N. C. C. 16. 
 
 Hovey u. Blakeman, 4 Ves. 608; Cham- (r) Curtis v. Mason, 12 Law Joum. 
 
 bers V. Minchin, 7 Ves. 197. N. S., Chanc. 442. 
 
 ' Ante, note to page 305. 
 
FOR THE ACTS OF THE OTHBES. 441 
 
 tify a trustee in making over the trust funds to his colleague, yet he 
 will be wholly wanting in his duty if he do not take due precautions 
 to ascertain, that they are duly applied by the co-trustee to the re- 
 quired purpose : and he will undoubtedly be responsible for any loss, 
 if he leave the property unprotected in the hands of his co-trustee for 
 a longer time than the necessity of the case actually requires.(s) 
 
 So a trustee will be liable for the loss of a trust fund, which he 
 may have suffered his co-trustee to receive for the purpose of invest- 
 ment, unless an immediate beneficial investment was in actual con- 
 templation at the *time. For if no such investment was p^qi/n 
 contemplated, the payment to the co-trustee was unnecessary, *- -' 
 and therefore a breach of trust.(i) 
 
 If by any private arrangement between the trustees one of them is 
 to have the exclusive management of one part of the trust property, 
 and the other of the remaining part, each will notwithstanding be 
 responsible for the whole.(M) 
 
 But where the author of the trust himself has invested one of his 
 trustees with a particular authority to the exclusion of the others, as 
 where a testator directed, that one of his trustees by name should 
 sell an estate, the others will not be answerable for any act done by 
 the party so entrusted in exercise of that power, (a;) 
 
 And so if it be part of the arrangement between the parties on the 
 creation of the trust, that each of the two trustees shall be answera- 
 ble for only a. moiety of the trust fund, the court will consider the di- 
 vision of the property, and of the consequent liability, to have been a 
 term in the creation of the trust, and will hold each trustee to be 
 liable only in respect of the share committed to him.(2/) 
 
 If co-trustees expressly bind themselves to be answerable for the 
 acts of each other, the court will not relieve them from the conse- 
 quences of such an arrangement, (z) 
 
 It is the duty of one trustee to protect the trust estate from any 
 misfeasance by his co-trustee, upon being made aware of the in- 
 tended act, by obtaining an injunction against him,(a) and if the 
 wrongful act has been already committed, to take measures by suit or 
 otherwise, to compel the restitution of the property and its applica- 
 tion in the manner required by the trust. (J) 
 
 (s) Curtis V. Mason, ubi supra; and (a:) Davis v. Spurling, 1 R. & M. 64. 
 
 see Bone v. Cooke, 1 M'Clel. 168 ; {y) Birls v. Betty, 6 Mad. 90. 
 
 Gregory v. Gregory, 2 Y. & C. 313; («) Leigh •!). Barry, 3 Atk. 583. 
 
 Sourfield v. Hawe.s, 3 Bro. C. C. 91. (a) In re Chertsey Market, 6 Price, 
 
 (0 Brice V, Stokes, 11 Ves. 319; 279. 
 
 Broadhurst v. Balguy, 1 N. C. C. 16. (J) E. Powlet v. Herbert, 1 Ves. Jun. 
 
 (u) Gill V. Att.-Gen. Hard. 314; see 297; Franco «. Franco, 3 Ves. 75; see 
 
 Fulton V. Gilraour, Rolls, 15 February, Walker v. Syraonds, 3 Sw. 71. 
 1845, MS. 
 
442 OE THE LIABILITY OF ONE TRUSTEE, ETC. 
 
 The ordinary clause for the indemnity of trustees, which limits 
 their liability to their own acts, does not apply to breaches of trust 
 of the nature discussed in this section. (c) Indeed such a clause ap- 
 pears to be of little or no practical use ; for if the conduct of the 
 trustee be such as not to amount to a breach of trust, he will not be 
 liable for the acts of his colleagues, though there be no such clause in 
 the trust instrument ;(cZ) and if there be a breach of trust on his part, 
 the clause in question will not apply, (e) 
 
 The right of the cestui que trust to charge one trustee for the acts 
 of his colleague may be waived by acquiescence ; but this defence 
 should be raised by the trustee's answer, and the fact of acquiescence 
 must be established by sufficient evidence. (/) 
 
 And where the cestui que trust has entered into any compromise or 
 arrangement with the trustee, by whom the trust fund has been lost, 
 and the rights of the other trustees to be indemnified out of the as- 
 sets of the *defaulting trustee are varied or affected by that 
 L -I arrangement, the cestui que trust will be held to have waived 
 the remedy, to which he was previously entitled against the other 
 trustees. For instance, where the cestui que trust executes, or au- 
 thorizes the other trustees to execute, a deed of compromise, as one 
 of the creditors of the defaulting trustee ; and by that deed the other 
 trustees are precluded from putting in force a bond, given by the de- 
 faulting trustee for the amount of the trust fund, the cestui que trust 
 could not afterwards proceed against the other trustees for the breach 
 of trust. (^) 
 
 But to produce this result, the cestui que trust must act with full 
 knowledge of all the circumstances, and of his own rights as against 
 the other trustees. (A) 
 
 It is almost unnecessary to add, that where a trustee is so far im- 
 plicated in a breach of trust committed by his co-trustee, that he is 
 compelled to make good to the cestui que trust the loss thus occa- 
 sioned, although he has not benefited by, or been directly concerned 
 in, the misappropriation of the property, he will be entitled to stand 
 in the place of the cestui que trust as against his co-trustee, and to 
 claim from him, or his estate, the amount which he has thus been 
 compelled to pay.(i) 
 
 The cases in which one of several trustees, who are all liable for a 
 
 (c) Mucklow V. Fuller, Jac. 198; (/) Lincoln «. Wright, 4 Bear. 427 ; 
 Williams v. Nixon, 2 Beav. 472. Brice v. Stokes, 11 Ves. 319. 
 
 (d) Leigh v. Barry, 3 Atk. 584; see (g-) Walker v. Symonds, 1 Sw. 1. 
 Dawson v. Clark, 18 Ves. 254. \h) Walker v. Symonds, 1 Sw. 1, 73. 
 
 (e) Underwood v. Stevens, 1 Mer. (i) 1 Sw. 1, 77 ; Lincoln v. Wright, 4 
 712 ; Hanbury v. Kirkland, 3 Sim. 265 ; Beav. 427. 
 
 Williams v. Nixon, 2 Beav. 472 ; Muck- 
 low V. Fuller, Jac. 198. 
 
OF TRUSTEES OF A DRY LEGAL ESTATE. 443 
 
 breach of trust, may be sued alone by the cestui que trust, will be 
 the subject of consideration in a future chapter.(A) 
 
 Where co-trustees are implicated in a joint breach of trust, and 
 the whole amount of the loss is recovered by the cestui que trust from 
 one or more of their number, those trustees who have been compelled 
 to pay may unquestionably enforce an apportionment or contribution 
 from the others by means of a bill filed for that purpose.(Z) 
 
 *CHAPTER 11. C*316] 
 
 OF THE POWERS AND DUTIES OF TRUSTEES AS BETWEEN 
 THEM AND THE CESTUI QUE TRUSTS. 
 
 I. Op Trustees of a Dormant Clothed with Active Du- 
 
 ESTATE [316]. TIES [328]. 
 
 II. Ojf Trustees of an Estate III. Off Trustees op Powers [471]. 
 
 I.— OF TRUSTEES OF A DORMANT ESTATE. 
 
 Under this head it is proposed to consider that class of trustees, 
 who have no express active duties to discharge with relation to the 
 trust estate. Such as, — 1st, Trustees, in whom a mere dry legal 
 estate is vested. — 2d, Trustees to preserve contingent remainders.^ — 
 And 3d, Trustees of terms of years, attendant on the inheritance.^ 
 
 I. — OP TRUSTEES OF A MERE DRY LEGAL ESTATE. 
 
 Wherever the person who is equitably entitled to any property, 
 takes absolutely the entire beneficial interest, the person in whom 
 the legal estate is vested for his benefit, may be said to be a mere 
 dry trustee. As, for instance, where the legal estate is vested in A. 
 his heirs and assigns, in trust for B. his heirs and assigns. And an 
 estate, not originally a mere dry trust, may become so in the event ; 
 as where a mortgagee in fee is paid off by the mortgagor, but no re- 
 conveyance is executed ; or where an equitable estate in fee simple is 
 limited in remainder to B., expectantly, upon the determination of 
 some particular or partial beneficial estate, or interest, which is af- 
 terwards determined or satisfied. It was at one time not unusual for 
 
 (4) Post, p. 543. 198; Knatchbul v. Feamhead, 3 M. & 
 
 {I) Wilson V. Goodman, [4 Hare, 54] ; Cr. 124. 
 see Ex parte Shakeshaft, 3 Bro. C. C. 
 
 ' Post, 317. 2 Post, 324. 
 
444 OF TRUSTEES OF A DET LEGAL ESTATE. 
 
 purchasers to take a conveyance of the legal fee to a dry trustee, as 
 a mode of barring the dowers of their widows. For according to the 
 law previously to the statute 3 & 4 Will. IV. c. 106, no dower at- 
 tached upon a mere equitable estate of inheritance. The law in this 
 respect has been altered by that act, which makes widows dowable 
 out of trust estates. Therefore, no such advantage can in future be 
 gained by taking a conveyance in that manner. 
 
 The powers of a mere dry trustee over the trust estate are very 
 limited, and his duties simple and obvious. At law he is regarded 
 as the real owner, and his name must be used in any action, or other 
 proceeding, affecting the title to the property.(a) But in equity the 
 cestui que trust is looked upon as the person really entitled, and the 
 trustee will be restrained by injunction from using his legal powers 
 otherwise than for the benefit of the cestui que trust.{h) It has been 
 seen, that the duties of the *trustee are principally threefold, 
 L -J in conformity to those of the ancient feoffees to uses. — 1st, 
 To permit the cestui que trust to have the beneficial enjoyment of the 
 estate, by receiving the income and other profits arising from it. — 2d, 
 To execute such conveyances and dispositions as the cestui que trust 
 may direct. — 3d, To defend the title of his cestui que trust in any 
 court of law or equity, or at any rate to suffer his name to be made 
 use of for that purpose. (c) 
 
 The right of the cestui que trust to require a conveyance or transfer 
 of the legal interest from his trustee, and the duty of the latter to 
 comply with such a requisition, have been already discussed at large in 
 a previous chapter, as well as the extent and nature of the liability 
 of the trustee for any expense occasioned by his refusal.(d) 
 
 The interest of cestui que trusts is to some extent recognised by 
 courts of law in actions by a trustee as the nominal plaintiff ; and if 
 the trustee fraudulently release the action without the consent of the 
 party beneficially interested, a plea of such a release will be set 
 aside, (e) 
 
 But the defendant, in an action at law brought by a trustee, can- 
 not in that action set off a debt due to him from the cestui que trust.{f) 
 
 A trustee, whose name is used by the cestui que trust as plaintiff 
 in an action at law, may apply to a court of equity in a suit then 
 pending to restrain the cestui que trust from proceeding with the ac- 
 tion, until he had given him security for costs.(^) 
 
 (o) Goodtitle v. Jones, 7 T. R. 47; Barker v. Richardson, 1 Y. & J. 362; 
 
 Wake V. Tinkler, 16 East, 36. [See Chit. Contr. 605. [Ante, 274, note (1).] 
 
 ante, p. 274, note.] (/) Tucker v. Tucker, 4 B. & Ad; 
 
 (6) Balls V. Strutt, 1 Hare, 146. 745. [Ante, p. 274, note !/•] 
 
 (c) 1 Cruis. Dig. Tit. 12, ch. 4, sect. 6. (g) Annesley v. Simeon, 4 Mad. 390. 
 
 id) Ante, Pt. II. Ch. IV. Sect. 1. [See Ins. Co. v. Smith, 11 Penn. St. 
 
 (e) Manning v. Cox, 7 Moore, 617; R. 12.] 
 
OF TRUSTEES TO PRESERVE, ETC. 445 
 
 In case of the disability of the cestui que trust by reason of in- 
 fancy, or mental incapacity, a dry trustee does not acquire any fur- 
 ther powers of management, or disposition over the trust estate ; nor 
 can he by any act of his, alter the nature of the trust property, by 
 changing real estate into personal, or vice versa.Qi) 
 
 It is a general rule in equity, that no act of the trustee shall pre- 
 judice the cestui que trust.{i) To this, however, there is one excep- 
 tion ; for if a mere trustee be in actual possession of the estate, and 
 convey it for valuable consideration to a purchaser, who has no 
 notice of the trust, the title of the purchaser will prevail. (^) 
 
 A mere dry trustee, such as one to preserve contingent remain- 
 ders, is not incapacitated from dealing with the cestui que trust for 
 the purchase of the trust estate.(Z) 
 
 II. — OP TRUSTEES TO PRESERVE CONTINGENT REMAINDERS.' 
 
 Where an estate was limited by deed or will to a person for life, 
 with an immediate remainder to his children, or other persons, upon 
 their coming into esse, or upon any other contingency, the contin- 
 gent remainders previously to the recent act, 7 & 8 Vict. c. 76, might 
 have been defeated, *before coming into existence, by the p^„^ „^ 
 forfeiture or alienation of the tenant for life.(wj) L J 
 
 The inconvenience and injustice, which was thus occasioned, led to 
 the invention of the estate of trustees to preserve contingent re- 
 mainders. An estate was limited to trustees and their heirs during 
 the life of the tenant for life, in trust to support the contingent re- 
 mainders after limited from being defeated or destroyed. If, there- 
 fore, the estate of the tenant for life were determined otherwise than 
 by his death, the estate of the trustees would then take eifect in pos- 
 session, so as to support and preserve the remainders depending in 
 contingency, (ji)^ 
 
 (A) Furiam v. Sanders, 7 Bac. Abr. leigh's case, id. 120; Fearne, Cont. 
 
 [Uses and Trusts, E.]; Witter v. Wit- Rem. 290, 7th edit.; 2 Bl. Comm. 171, 
 
 ter, 3 P. Wras. lOO. 2; 1 Mad. CV Pi. 618, 3d ed.; Story 
 
 (t) 7 Bac. Abr. [Uses and Trusts, E.] Eq. Jur. ^991. 
 
 1 Cruis. Dig. Tit. 12, Ch. 4, Sect. 11. (n) Garth v. Cotton, 3 Atk. 753 ; S. 
 
 (4) Millard's case, 2 Freera. 43; see C. 1 Dick. 183; Smith d. Dormer v. 
 
 Bovey i). Smith, 1 Vern. 149; and see Parkhurst, 3 Atk. 135; S. C. Willes, 
 
 ante, p. 164; post, 510 [and notes]. 327; 2 Bl. Comm. 171, 2; 2 Cruis. Dig. 
 
 (i) Parkes v. White, 11 Ves. 226. Tit. 16, Ch. 7, Sect. 1; Co. Lilt. 290, b. 
 
 [See ante, note (1), to page 158.] Butl. notes, IV. V. 4; 1 Mad. Ch. Pr. 
 
 (m) Archer's case, 1 Rep. 66 ; Chud- 619. 
 
 ' See Vanderheydent;. Crandall, 2Denio, 9. 
 
 'In some of the United States, as Georgia, South Carolina, Delaware, New 
 York, Illinois, Kentucky, the necessity of trustees to support contingent remain- 
 
446 OF TRUSTEES TO PRESERVE 
 
 The estate in remainder thus limited to trustees during the life of 
 the tenant for life, is a vested and not a contingent remainder. This 
 was once doubted, but it was so resolved by the Court of K. B. in the 
 case of Smith on the demise of Dormer v. Parkhurst, and that decision 
 was afiSrmed on appeal by the House of Lords with the unanimous 
 concurrence of all the judges. (o) The extent and duration of this 
 estate, and in what cases it will be restricted or extended to meet the 
 purposes of the trust, have been already considered in a previous 
 chapter. (p) 
 
 The primary duty of trustees of this description is to preserve the 
 contingent remainders, created by the will or settlement, from being 
 defeated or destroyed by the tenant for life. Therefore, where trus- 
 tees are appointed to preserve contingent remainders limited to un- 
 born sons, and before the birth of a son they join in a conveyance 
 to destroy those remainders, that is a clear breach of trust, for which 
 they will be held responsible to any son afterwards coming into ex- 
 istence to the extent of the full value of the estate ;{q) and a volun- 
 teer taking under such a conveyance, or a purchaser with notice, will 
 be bound by the trust, and will be decreed to execute a reconvey- 
 ance, (r) And it is immaterial whether the trust was created by 
 voluntary settlement, or by a settlement for valuable consideration, 
 or by will.(s) 
 
 But the court has refused to enforce this equity against the trus- 
 tees in favor of persons claiming under an ultimate contingent hrai- 
 tation, in a settlement to the right heirs of the settlor, who were not 
 within the consideration of the settlement. The case alluded to is 
 that of Tipping v. Piggott.(^) There by a marriage settlement lands 
 were limited to trustees in trust for the husband for ninety-nine years, 
 if he should so long live, remainder to trustees during his life to pre- 
 serve contingent remainders, remainder to the first and other sons of 
 
 (o) 3 Atk. 135; S. C. Willes, 327 ; kins, 1 V. & B. 491; Garth v. Cotton, 3 
 
 see 3 Atk. 537 ; Fearne; Cont. Rem. Atk. 754. 
 
 217; Co. Litt. 265 a, n. 2, and 337, b, (r) 1 P. Wins. 128; 2 P. Wms. 681; 
 
 n. 2. 3 Atk. 754, 5. 
 
 (p) Ante, Pt. II. Ch. II. Sect. 1. (s) Pye v. Gorge, 1 P. Wms. 128; 
 
 (g) Pye v. Gorge, 1 P. Wms. 128; Mansell v. Mansell, 2 P. Wms. 681; 
 
 Mansell v. Mansell, 2 P. Wms 678 ; 7 Symance v. Tatham, 1 Atk. 614. 
 Bac. Abr, [Uses and Trusts, F.]; Moody (t) I Eq. Ca. Abr. 385. 
 V. Wallers, 16 Ves. 302 : Biscoe v. Per- 
 
 ders in the case of posthumous children, is done away with by statute, 2 Green- 
 leaf's Cruise, note to p. 315. In Indiana, Mississippi, and (except as to estates 
 tail) in Maine, Massachusetts, and New York, no alienation by tenant for life 
 in general will affect dependent estates. Id. 299, note. In Pennsylvania, how- 
 ever, a contingent remainder will be destroyed by a common recovery suffered 
 by the tenant for life. Dunwoodie v. Reed, 3 S. & R. 435 ; Toman v. Dunlop, 18 
 Penn. St. R. 72. See, in New York, before the Revised Statutes, Vanderheyden v. 
 Crandall, 2 Denio, 9. 
 
CONTINGENT REMAINDERS. 447 
 
 the marriage in tail, with an ultimate remainder to the right heirs of 
 the husband; there was no issue of the marriage, and *the r^gig-i 
 hushand and wife, and the trustees to preserve, joined in re- ^ J 
 settling the estate hy fine and conveyance to other uses. The hus- 
 band and wife died without issue, and a bill was filed hy the heir-at- 
 law of the husband to enforce his claim under the limitation in the 
 first settlement, and to set aside the subsequent conveyance, as 
 having been made in breach of trust. But Lord Harcourt held, that 
 although the second settlement would most certainly have been a 
 breach of trust as against the first and other sons, who took as pur- 
 chasers under the first settlement, yet the remainder over to the 
 right heirs of the husband was merely voluntary, and not to be aided 
 in equity, and he accordingly dismissed the bill.(w) 
 
 Under a limitation to A. for ninety-nine years, if he should so 
 long live, with remainder to trustees to preserve (giving them the 
 first estate oi freehold), with a contingent remainder to the first and 
 other sons of A. in tail ; the first legal estate of freehold would be 
 vested in the trustees, and their concurrence would consequently be 
 requisite to give validity to any fine or recovery for barring the sub- 
 sequent remainders. It is at present by no means settled how far 
 it would be a breach of trust on the part of the trustees to join with 
 the tenant for life, and tenant in tail in remainder upon his reaching 
 twenty-one, in barring the subsequent remainders over in order to 
 effect a re-settlement of the estate, (a;) We shall presently see that 
 the court will not in general decree the trustees to join in such a 
 transaction, if they refuse to do so.(?/) 
 
 If the new settlement of the estate be beneficial to the family 
 generally, and it do not confer any unreasonable benefit on the 
 tenant for life, for instance, where it gives an immediate beneficial 
 interest to the son, who would otherwise take nothing until his father, 
 the tenant for life's death ; and where portions are directed to be 
 raised for the daughters, who were omitted in the original settlement; 
 such circumstances will materially assist the court in coming to the 
 decision, that no breach of trust has been committed by the trustees 
 in giving effect to the fresh arrangement. (2) Indeed, these conside- 
 rations have on more than one occasion induced the court to decree 
 the trustees to join in executing a re-settlement, (a) 
 
 (m) Tipping- r. Piggott, lEq.Ca.Abr. Woodhouse v. Hoskins, 3 Atk. 22; 
 
 385; S. C. 2 Cruis. Dig. Tit. 16, Ch. 6, Barnard v. Large, 1 Bro. C. G. 534; 
 
 Sect. 9; and see Moody v. Walters, 16 Ambl. 773. 
 
 Ves. 312, 13. (2) Moody u Walters, 16 Ves. 283, 
 
 (x) Else V. Osborn, 1 P. Wms. 387 ; 311 ; Bisooe v. Perkins, 1 V. & B. 485, 
 
 Moody V. Walters, 16 Ves. 283; Biscoe 492. 
 
 V. Perkins, 1 V. & B. 485. (a) Platt v. Spring, 2 Vern. 303 ; 
 
 (y) Townsend v. Lawton, 2 P. Wms. Frewin v. Charlton, 1 Eq. Ca. Abr. 386 ; 
 
 379; Symance v. Tatham, 1 Atk. 613; Winnington v. Foley, 1 P. Wms. 536. 
 
448 OF TRUSTEES TO PEESERVE 
 
 In the case of Else v. Osborne,(5) it was laid down without any 
 qualification, by Lord Cowper, that " if the eldest son joins in a 
 feofi"ment, where the remainder in tail is limited to the eldest son, it 
 prevents any breach of trust in the trustees." In that case the re- 
 mainder was limited to the heirs of the hody of the tenant for life, 
 and not to his first and other sons. The tenant for life, who 
 did not take a freehold interest, and the trustees to preserve, and 
 the eldest son, being of age, joined in a feoffment and fine to B. in 
 fee, by way of mortgage to secure a sum of money. The case was 
 decided on another point, but as we have already *seen, it 
 L "■ J was distinctly stated by Lord Cowper, that this would not 
 have been a breach of trust in the trustees, if the limitation in tail 
 had been to the eldest son. In this case there was not the slightest 
 ground for supporting the transaction as a beneficial family ar- 
 rangement ; indeed it appears from a statement in the note to the 
 report, that the equity of redemption in fee was reserved solely to 
 the father, the tenant for life, to the exclusion of the son.(c) 
 
 This decision does not seem to have been approved of by Lord 
 Eldon, when it came to be considered by him in the course of his 
 judgment in Moody v. Walters.(ci) Although, in the subsequent 
 case of Biscoe v. Perkins, (e) the observations of that eminent judge 
 seem to be decidedly in favor of the doctrine, that a conveyance 
 made by trustees jointly with the tenant for life and first tenant in 
 tail, will not be treated as a breach of trust, though they would not 
 he decreed to execute such a conveyance, (e) 
 
 In the present state of the authorities, and until the question be 
 set at rest by judicial determination, it must be laid down in the 
 words of Lord Eldon, " as the safest rule for trustees, but certainly 
 most inconvenient for the general interests of mankind, that it is 
 better for trustees never to destroy the remainders, even if the tenant 
 in tail of age concurs, without the direction of.the court."(/) 
 
 Where the limitation in remainder is not to the first and other 
 sons of the tenant for life in tail, but to the heirs of his hody, it 
 was decided by Lord .Cowper, that it was a breach of trust on the 
 part of the trustees to join with the tenant for life in a feoffment to 
 a stranger, although the eldest son, who was of age, and the apparent 
 heir in tail, also joined ; for nemo est hceres viventis, and wow constat, 
 that the eldest son would ever take as heir of the father, and unless 
 he did so his concurrence in the transaction was immaterial : in fact, 
 the eldest son had there died without issue in the lifetime of the 
 
 (6) 1 P. Wms. 387 ; and see Wood- 2 ; and see Lord Hardwicke's obseiva- 
 
 house V. Hoskins, 3 Atk. 24. tions in Woodhouse v. Hoskins, 3 Atk, 
 
 (c) Else V. Osborn, 1 P. Wms. 387. 24. 
 
 id) 16 Ves. 305. (/) 1 V. & B. 491. 
 (c) Biscoe V. Perkins, 1 V. & B. 491, 
 
CONTINGENT REMAINDERS. 449 
 
 father, and the bill was filed by the second son to set aside the feofi"-. 
 ment as a breach of trust ; but Lord Cowper, though he admitted 
 that there had been a breach of trust, refused to entertain the suit, 
 on the ground that the son had no title to sue in his father's lifetime, 
 and dismissed the bill.(^) 
 
 Until the eldest son, or other first tenant in tail in remainder, 
 attain the age of twenty-one, he is of course incompetent to give any 
 effectual concurrence ; and the destruction of the contingent remain- 
 ders by the trustees before that time, will in any case be as much a 
 breach of trust, as if no tenant in tail had then come into esse.{h) 
 And the case would be the same, where the tenant in tail in remain- 
 der is laboring under any other legal incapacity to convey. 
 
 If the tenant for life under a will with remainder to another per- 
 son in tail be also made trustee to preserve the contingent remain- 
 ders over, his joining with the tenant in tail to bar the contingent 
 remainders will not be a breach of trust. (i)(l) 
 
 *Although in the cases and under the circumstances al- 
 ready considered, a conveyance, actually executed by the '- -■ 
 trustees, destroying the contingent remainders, will not be a breach 
 of trust, it by no means follows that the trustees would be compelled 
 by the decree of the court to execute such a conveyance in a similar 
 case, and under the same circumstances. 
 
 However, in a proper case, the court will, and frequently has com- 
 pelled the trustees to join in destroying the contingent remainders, 
 although an indemnity is usually directed to be given in such cases. 
 
 Thus, where the parties who require tha trustees to join in defeat- 
 ing the contingent remainders, claim by a title paramount to that of 
 the persons entitled under the settlement, the court has decreed the 
 trustees to perfect the superior title by joining in the conveyance. 
 Thus in Bassett v. Clapham,(A) A., by a voluntary conveyance, 
 settled lands to the use of himself for life, remainder to trustees to 
 preserve, remainder to his first and other sons in tail, remainder to 
 himself in fee. He afterwards made a conveyance of the same lands 
 to other trustees for the payment of his debts. The creditors filed 
 
 ig) Else V. Osborn, 1 P. Wras. 387. (i) Osbrey v. Bury, 1 Ball. & B. 53. 
 {h) Moody v. Walters, 16 Ves. 302; (4) 1 P. Wms. 358. 
 Biscoe 1). Perkins, 1 V. & B. 491. 
 
 (1) In such a case the tenant for life would be enabled at law to defeat the 
 contingent remainders by a simple conveyance of the estate before they came 
 into ewe; and if he were not expressly made the trustee to preserve those remain- 
 ders, he would not be restrained by a court of equity from exercising his legal 
 powers though to the disappointment of the settlement. But there can be little 
 doubt, but that he would be prevented by the court from availing himself of his 
 legal powers for his own benefit in direct contravention of the express trust. 
 » 29 
 
450 OF TRUSTEES TO PRESERVE 
 
 their bill, insisting that the trustees should join in a sale to destroy 
 the contingent remainders, none of which appear to have become 
 vested : and Sir Joseph Jekyll, after considerable hesitation, upon 
 the authority of a precedent which was produced, decreed the trus- 
 tees to join in the conveyance, on being indemnified. In this case it 
 will be seen that the title of the creditors was paramount to that of 
 the parties claiming under the settlement. 
 
 So, where it is essentially for the benefit of the estate, that a sale 
 should be effected, the trustees, on being indemnified, have been di- 
 rected to join in a conveyance which destroyed the contingent 
 remainders, although they had not then come into existence. For 
 instance, where the settled estate was in mortgage, and the mort- 
 gagee threatened to foreclose, unless his debt was paid off by means 
 of a sale.(Z) 
 
 And upon the same ground of benefiting the estate, where the first 
 tenant in tail has come of age, and is desirous of resettling the pro- 
 perty, so as to continue it in the family, or so as to rectify an omis- 
 sion in the original^ settlement, by giving portions to female members 
 of the family, the court has decreed the trustees to join with the 
 tenant for life, and tenant in tail, in executing such a conveyance, 
 although its effect was to defeat the contingent remainders over.(»j) 
 
 It was stated by Mr. Vernon in Winnington v. Foley,(>i) that there 
 was a later case, where the trustee had joined with the first remain- 
 derman in tail in suffering a recovery against the consent of the father, 
 the tenant for life, and it had been held to be no breach of trust; 
 but Lord Eldon observed in Moody v. Walters, that he had not been 
 able to find the case alluded to.(o) 
 
 *Where there are no circumstances rendering the exe- 
 r*3221 ■ 
 
 l " -^ cution of the new conveyance by the trustees either necessary' 
 
 or advantageous to the estate, the court has repeatedly refused to 
 compel them to join in destroying the remainders over. It has been 
 said, that trustees of this description are honorary trustees; and 
 where there is no violation of trust, the court will be reluctant to 
 interfere, so as to take away their discretion, (p) 
 
 Thus, in a case where an estate was limited by a marriage settle- 
 ment to the husband and wife for their lives, with remainder to trus- 
 tees to preserve, with remainder to their first and other sons in tail; 
 and there was no issue of the marriage after twelve years ; the hus- 
 band and wife filed a bill to compel the trustees to join in a sale for 
 
 Q) Piatt V. Sprigg, 2 Vern. 303. (o) 16 Ves. 305, 6. 
 
 (to) Frewia v. Charlton, 1 Eq. Ca. ( p) Woodhouse v. Hoskins, 1 Atk. 
 Abr. 386; Winnington v. Foley, IP. 24; Barnard v. Large, 1 Bro.C. C. 535: 
 Wms. 636. ' S. C. Ambl. 775; Biscoe v. Perkins, 1 
 
 (n) 1 P. Wms. 537, V. & B. 492. 
 
 / 
 
CONTINGENT EEMAINDERS. 451 
 
 the payment of the debts, but the Lord Keeper refused to make the 
 decree, (g-) 
 
 In this case it will be observed that no person entitled in remain- 
 der had come into esse ; but even where the first remainderman in 
 tail has come of age, the court has refused to direct the trustees to 
 join with him and the tenant for life in executing a conveyance bar- 
 ring the remainders over ; though the object of the new conveyance 
 was to resettle the estate in a different manner.(r) Still less will it 
 compel the trustees to join in such a conveyance, for the purpose of 
 giving effect to a sale or other disposition by the tenant for life and 
 the remainderman in tail, where that sale or disposition is totally at 
 variance with, and destructive of, the purposes contemplated by the 
 orginal settlement, (s) 
 
 Upon the whole, the authorities leave the question, as to the pro- 
 priety or impropriety of trustees joining in the destruction of the 
 contingent remainders, in a very unsatisfactory state. It is clear, 
 that wherever the court would compel the trustees so to join, it will 
 be no breach of trust on their part to act, without waiting for the 
 sanction of the court : this, however, as a practical rule for the 
 guidance of trustees, is of very little use; for the difficulty remains 
 to determine in what cases trustees will or will not be directed to 
 join, a question, which Lord Eldon admitted, it was beyond his abili- 
 ties to determine from the different cases on the subject.(*) 
 
 However, it is equally clear from the decisions, that there may be 
 cases where the trustees may join without any breach of trust, al- 
 though the court will not compel them to do so : and wherever the 
 arrangement, to which their concurrence is required, is, from the 
 circumstances of the family, fair and reasonable, and one, to which 
 in the proper exercise of their discretion they ought to accede, the 
 trustees may safely be advised to join in giving effect to it.(M) 
 
 But the trustees, even in such a case, will be perfectly justified in 
 refusing to join, except under the direction of the court; and unless 
 in the clearest cases, this is certainly the most prudent course for 
 them to adopt, remembering the words of Lord Harcourt in Pye v. 
 Gorge,(a;) *" That it would be a dangerous experiment for 
 trustees in any case to destroy remainders, which they were •- J 
 appointed by the settlement to preserve."(z/) 
 
 It may be observed, that previously to the Fines and Recoveries 
 
 (9) Daviesu. Weld, 1 Vera. 181; S. («) In Biscoe v. Perkins, 1 V. & B. 
 
 C, 1 Eq. Ca. Abr. 386. 491, 2. 
 
 (r) Barnard v. Large, 1 Bro. C. C. (m) Lord Lausdown's case, cited by 
 
 534: S. C. Ambl. 773. • Lord Eldon, 16 Ves. 310. 
 
 (s) Townsend v. Lawton, 2 P. Wms. {x) 1 P. Wms. 128. 
 
 379; Symance v. Tatham, 1 Atk. 613; \y) Moody v. Walters, 16 Ves. 310, 
 
 Woodhouse v. Hoskins, 3 Atk. 22. 11 ; Biscoe v. Perkins, 1 V. & B. 491. 
 
452 OF TEUSTEES TO PRESERVE, ETC. 
 
 Aot{z) the concurrence of the trustees in a recovery for barring the 
 subsequent contingent and other remainders, and since that act their 
 consent to a conveyance as protectors of a settlement, is necessary, 
 only where they take the first estate of freehold ; and this is usually 
 the case, where a, chattel interest for a term of years determinable on 
 his life is limited to the beneficial tenant for life. Where the tenant 
 for life has an estate of freehold, he and the first remainderman in 
 tail, on coming of age, may effectually bar all the subsequent remain- 
 ders over without any co-operation on the part of the trustees. And 
 so, when the estate tail takes effect in possession by the death of the 
 tenant for life, the tenant in tail alone will be competent to defeat 
 the subsequent remainders, and acquire the fee. 
 
 It is not probable, that any question, as to the necessity of the 
 concurrence of the trustees in these cases, will often arise in future : 
 for the 22d section of the Fines and Recoveries Act(a) provides that 
 the owner of the first existing estate under a settlement (though only 
 an estate for years determinable on lives), shall be the protector of 
 the settlement : and by the 34th section the consent of the protector 
 only is required to give validity to an absolute disposition by the 
 remainderman in tail. The 27th and 29th sections together provide 
 that no bare trustee shall be protector of any settlement, except where 
 the settlement was made on or before the 31st of December, 1833. 
 
 The destruction of the remainders, before any persons entitled in 
 remainder have come into existence, is clearly a breach of trust: 
 and such a course cannot safely be adopted by the trustees in any 
 case, except under the direction of the court. (6) 
 
 It is the duty of trustees to preserve contingent remainders to 
 protect the estate from injury committed by the tenant for life.(fi) 
 And they will be guilty of a neglect of duty, if they permit a tenant , 
 for life, liable to impeachment for waste, or a tenant pur autre vie, 
 who by the nature of his estate is liable for waste, to destroy tim- 
 ber.(c?) Neither ought such trustees to permit the tenant for life 
 or years to destroy his estate for the purpose of bringing forward a 
 remainder to himself or another for the purpose of cutting tim- 
 ber.(e) And, to enable them to discharge this duty, the trustees 
 may have an injunction against the tenant for life, to restrain the 
 commission of the waste before the contingent remainderman comes 
 into 'esse.{f) 
 
 {z) 3 & 4 Will. IV. c. 74. (d) Stansfield v. Habergham, 10 Ves. 
 
 (a) Ibid. 282; Garth v. Cotton, 1 Dick. 183; 1 
 
 (6) Davies v. Weld, 1 Vern. 181; Ves. 524, 46; 3 Atk. 751 ; 1 Mad. Ch. 
 
 Pye V. Gorge, 1 P. Wms. 128; Mansell Pr. 622. 
 
 V. Mansell, 2 P. Wms. 678; Moody v. (e) 10 Ves. 278. 
 
 Waller, 16 Ves. 302. (/) Garth v. Cotton, 3 Atk. 754. 
 
 (c) Barnard v. Large, 1 Bro. C. C. 
 535; Ambl.774. 
 
OF TRUSTEES OF ATTENDANT TERMS OF YEARS. 453 
 
 If the trustees consent to the commission of the waste, and bind 
 themselves not to sue for an injunction, they will be personally liable 
 for the value. (^) But this liability will not exist, if they have not 
 acted in the trust, or have no notice of the waste. (A) 
 
 *In the case of copyholds, the lord's estate will suffice to 1-^094.1 
 support the contingent remainders, without any express ap- '- -' 
 pointment of trustees for that purpose. But it does not appear to 
 be the duty of the lord (though a trustee by legal construction), to 
 interpose actively to prevent waste.(i) 
 
 The recent act of 7 & 8 Vict. c. 76, has made a very important 
 alteration in the law affecting contingent remainders. The 8th sec- 
 tion enacts, that after that act comes into operation (from the 31st of 
 December, 1844), no estate in land shall be created by way of con- 
 tingent remainder, but every estate, which before that time would 
 have taken effect as a contingent remainder, shall take effect (if in a 
 will or codicil) as an executory devise, and (if in a deed) as an exe- 
 cutory estate of the same nature and having the same properties as 
 an executory devise: and contingent remainders existing under 
 deeds, wills, or instruments, executed or made before the time when 
 that act comes into operation, shall not fail or be destroyed or barred 
 merely by reason of the destruction or merger of any preceding 
 estate, or its determination by any other means than the natural 
 effluxion of time, or some event on which it was in its creation limited 
 to determine.' 
 
 The effect of this enactment is to do away with the necessity of 
 creating trustees for the preservation of contingent remainders for 
 the future ; as well as to remove the probability of any question 
 arising hereafter, as to the duties or powers of the trustees already 
 created for that purpose. It is to be observed, that the 13th sec- 
 tion declares, that the act shall not extend to any estate, right, or 
 interest created before the 1st of January, 1845, except so far as 
 regards the provisions as to existing contingent remainders. 
 
 III. — OF TRUSTEES OF ATTENDANT TERMS OF TEARS. 
 
 Where a term of years is created by deed or will, either by way 
 of mortgage, or for securing jointures, or portions, or any other par- 
 ticular purpose, and there is no proviso for its cesser or determina- 
 tion, upon the satisfaction of the trusts, the term, upon the accom- 
 
 (g-) 3 Atk. 754. (i) Stansfield v. Habergham, 10 Ves. 
 
 (A; Ibid. 282. 
 
 ' This act is repealed by the 8 & 9 Vict. c. 106, sect. 1, so far as it destroyed 
 contingent remainders. 
 
454 OF TKTJSTEES OF ATTENDANT TEEMS OF TEARS. 
 
 plishment of the particular purpose, will in general remain vested in 
 the termor as a trustee for the owner of the inheritance : and it is 
 then technically known as an attendant term, in contradistinction to 
 a term in gross. (A)' 
 
 A term may become attendant, either by an express declaration, 
 or by the construction of law ; the powers and duties of the trustee 
 of the term are the same in either case.(Z) 
 
 It has been long established, that wherever the title to the in- 
 heritance, and the term of years, is so situated, that the whole legal 
 interest in the one, and the whole equitable interest in the other, are 
 vested in the same person, so that if they were both legal estates the 
 term would merge, *then the term will in equity become at- 
 L J tendant on the inheritance, although there may be no express 
 declaration to that effect, (m) 
 
 Therefore, where a purchaser of land took a conveyance of the fee 
 to himself, and an assignment of an outstanding term of years to two 
 persons in trust for him, but without declaring that the term was to 
 attend, Lord Nottingham decided, that the trustees held the term for 
 the benefit of the heir of the purchaser as the owner of the inheri- 
 tance, and that his executrix, who laid claim to it as a chattel or 
 term in gross, had no interest ;(n) and it is immaterial whether the 
 term, or the legal fee, be vested in the trustee for the purchaser.(o) 
 
 So, where a person entitled as mortgagee to a long term of years, 
 which was vested in a trustee for him, purchased the inheritance, and 
 devised the fee by a will not attested by three witnesses ; it was held, 
 that the devisee should not take the trust of the term under the will, 
 but that it went to the heir-at-law as attendant on and part of the 
 inheritance.(^) 
 
 And the law is the same, where the termor for years, subsequently 
 to his will, contracts to purchase the inheritance, and dies before 
 conveyance. The residuary legatees in that case will have no claim 
 
 (i) Willoughby v. Willoughby, 1 T. Tit. 12, ch. 3, sect. 9 ; 1 Sugd. V. & P. 
 
 R. 765 ; S. C. Ambl. 282 ; Besti;. Stam- 521, &c., 9th ed. 
 
 fold, 1 Salk. 154; S. C. 1 P. Wms. 374; (m) Capel v. Girdler, 9 Ves. 510; 
 
 Prec. Chan. 252 ; 2 Vein. 520; Wynch Kelly v. Power, 2 Ball. & B. 253. 
 
 V. Packington, 2 Eq. Ca. Abr. 507 ; S. (n) Tiffin v. Tiffin, 1 Vera. 1; S. C. 2 
 
 C. 1 Bro. C. C. 90, cited; Hayter t). Eq. Ca. Abr. 241; 2 Chan. Ca. 55. 
 
 Rod, 1 P. Wms. 373; Maundrell v. (o) Langton'sCase, 2 Chan.Ca. 156; 
 
 Maundrell, 10 Ves. 259; 2 Fonbl. Eq. Dowse v. Percival, I Vera. 104. 
 
 B. 2, Ch. 4, Sect. 4, 5; Co. Litt. 290, b. (p) Witchurch v. Witchuroh, 2 P. 
 
 Butl. note, XV. Wms. 236 ; Goodright v. Shales, 2 Wils. 
 
 {I) Cholmondeley v. Clinton, 1 Sugd. 239. 
 V. & P. 506, 7, 9th ed. ; 1 Cruis. Dig. 
 
 ' These terms are now abolished in England ; see ante, p. 253, and notes. 
 
OF TRUSTEES OF ATTENDANT TEBMS OF YEARS. 455 
 
 to the legal term, which will in equity belong to the heir, as atten- 
 dant upon his equitable title to the inheritance. (§') 
 
 And where a testator devised an estate to trustees for a term of 
 ninety-nine years, but declared no trust of the term, and went on to 
 devise the estate to persons for life with remainders over ; it was 
 held, that there wis no resulting trust of the term, but that it at- 
 tended the inheritance, (r) 
 
 So, where a term is carved out of the inheritance for any particu- 
 lar purpose, when that purpose is satisfied, the term becomes atten- 
 dant on the inheritance without any express declaration : and this is 
 in accordance with the maxim of equity, that '• that should have the 
 satisfaction which has sustained the loss."(s) And this doctrine will 
 hold good, whatever may have been the purpose which the term was 
 destined to answer ; whether to secure a mortgage debt — or any pe- 
 cuniary charge for a wife or children — or to carry out any other 
 temporary arrangement. (i) 
 
 Therefore, where the owner of the inheritance, though only tenant 
 in tail,(M) pays off a charge, secured by a term of years, it will be 
 presumed, in the absence of a declaration to the contrary, that he 
 acted for the benefit of the inheritance, and the term will become 
 attendant, (a;) But it is otherwise where the incumbrance is dis- 
 charged by a tenant for life,(5f) *or tenant in tail in remain- 
 der.(2) Although if the tenant for life, or a tenant for any L ^^°] 
 other partial estate, pay off the charge, and afterwards acquire the 
 inheritance, the charge, although kept on foot up to that time, will 
 then merge, and the term will become attendant, (a) 
 
 If there be any intermediate legal estate and beneficial interest 
 between the term and the inheritance, the term will not be attendant, 
 but will remain in gross ; for in that case it would not merge, if 
 vested in the owner of the legal inheritance. For instance, where 
 the trustee of an outstanding term granted a derivative lease of it to 
 a trustee for the purchaser, reserving a nominal reversion of eleven 
 
 (q) Capel v. Girdler, 9 Ves. 509; and 252; S. C. 2 Vern. 520; Maundrell v. 
 
 see Cooke v. Cooke, 2 Atk. 67. Maundrell, 10 Ves. 270. 
 
 (r) Sidney v. Miller, Coop. 206, and (u) Jones v. Morgan, 1 Bro. C. C. 206 ; 
 
 19 Ves. 352; Anon. 2 Ventr. 359; see St. Paul v. Lord Dudley and Ward, 15 
 
 Brown v. Jones, 1 Atk. 191. Ves. 173; Astley v. Milles, 1 Sim. 298 ; 
 
 («) Francis Max., p. 21, 22 ; 2 Fonbl. Lord Selsea v. Lord Lake, 1 Beav. 146. 
 
 Eq. B. 2, Ch. 4, Sect. 4, 5; 1 Cruis. Dig. {x) Ibid. 
 
 Tit. 12, Ch. 3, Sect. 10; Co. Litt. 290, ^y) Wyndham v. Earl of Egermont, 
 
 b. Butl. note, XV. Ambl. 753 ; Countess v. Earl of Shrews- 
 
 (0 Bodmin v. Vandebendy, 2 Chan, bury, 1 Ves. jun. 227. 
 
 Ca. 172; Gore v. Black, 2 Vern. 139, (») Wigsell v. Wigsell, 2 S. & St. 364. 
 
 cited; Best v. Starapford. Preo. Chan. (o) Astley «. Milles, 1 Sim. 298; Lord 
 
 Selsea v. Lord Lake, 1 Beav. 146. 
 
466 OP TRUSTEES OF ATTENDANT TERMS OF TEARS. 
 
 days, instead of assigning over the entire interest, the derivative 
 term was held not to be attendant.(6) 
 
 A term may be prevented from becoming attendant, although the 
 beneficial title to it becomes vested in the owner of the inheritance, 
 if in creating it there was an obvious intention that it should be sepa- 
 rated from the inheritance, and held in gross.(c) And so a term, 
 having become attendant, may be disannexed, and turned into a term 
 in gross, by the act of the owner of the inheritance.(ci) 
 
 Terms attendant on the inheritance are considered as absolutely 
 annexed to it ; and the beneficial title to them follows all alienations 
 of the inheritance, or any partial estate created out of it by deed, or 
 will, or act of law.(e) 
 
 The legal ownership of the term devolves, upon the death of the 
 original trustee, in the usual course of representation, where it has 
 not been previously assigned to a new trustee. But in all cases, the 
 legal holder of the term will hold in trust for the person entitled for 
 the time being to the inheritance, and will be bound to exercise his 
 legal powers only according to his direction, or for his benefit.(/) 
 
 It has been already seen, that as the legal estate is vested in the 
 trustee of the term, any action at law respecting the title to the pro- 
 perty can be tried only in his name.(^) And hence arises the se- 
 curity to a purchaser by having an outstanding term vested in a 
 trustee for him ; for if an ejectment be brought against him by any 
 incumbrancer or other adverse claimant, and the origin of the adverse 
 title be subsequent to the creation of the term, the plaintiff in such 
 an action cannot recover during the continuance of the prior legal 
 estate. (A) 
 
 The duties of the trustee of an attendant term, therefore, are 
 mainly to suffer his name to be used by the owner of the inheritance 
 in any action at law respecting the title, and to assign or dispose of 
 the term according to the requisitions of the same party. 
 
 Where a person who lays claim to the inheritance, requires an 
 assignment of an attendant term, which has not been expressly as- 
 signed to a trustee for himself, the trustee of the term is of course 
 entitled to clear *proof of the right of the party to have the 
 L -J required assignment, and for that purpose to require the de- 
 
 (6) Scottu.Fenhouillet, lBro.C.C.69. Litt. 290, b. Bull, note, XV.; 2 Fonbl. 
 
 (c) Hayter v. Rodd, 1 P. Wms. 362; Eq. B. 2, Ch. 4, Sect. 4, 5; 1 Mad. 
 see Nourse v. Yerworth, 3 Sw. 612. Chan. Prac. 636, 3d ed.; Earl of Buck- 
 
 (d) Per Lord Hardwicke in Willough- inghamshire v. Hobart, 3 Sw. 201. 
 
 by V. Willoughby, 1 T. R. 763; S. C. (/) 1 Sugd, V. & P. 519, 520, 9tli ed. 
 
 Ambl. 283: Duke of Norfolk's case, 3 (g-) Ante, p. 274, and note. 
 
 Chan. Ca. 46. [h) Co. Litt. 290, h. Bull, note, XV.; 
 
 (e) Willoughby v. Willoughby, 1 T. 2 Fonbl. Eq. B. 2, Ch. 4, Sect. 4 ; 1 
 R. 763; Ambl. 282; Maundrell«. Maun- Mad. Chan. Prac. 636. 
 
 drell, 7 Yes. 567, and 10 Ves. 246; Co. 
 
OF TRUSTEES OP ATTENDANT TERMS OP YEARS. 457 
 
 duction of his title from the person for whose benefit the term was 
 last assigned to attend. And in the absence of such proof, the trus- 
 tee would unquestionably be justified in refusing to make the assign- 
 ment, except under the sanction of the court. («') 
 
 This leads to the observation, that if the trustee of the term have 
 notice of any disposition, or incumbrance, created by the owner of 
 the inheritance, he cannot safely make any assignment of the term, 
 or suifer any proceeding to be carried on in his name, to the prejudice 
 of the party taking an interest under that disposition or incumbrance ; 
 and Lord Eldon has intimated, that the trustee in such a case might 
 be restrained by injunction from permitting his name to be used for 
 such a purpose, (fc) 
 
 If a trustee of a term refuse to assign it, when required by the 
 party who is clearly entitled to the inheritance, he will be compelled 
 to do so by the decree of the court -.{T) and if the refusal be unrea- 
 sonable or proceed from any improper motive, the decree would be 
 made against the trustee with costs. (m) 
 
 A court of equity will not sufi'er the trustee of an attendant term 
 to use his legal powers for the purpose of defeating or opposing the 
 title of the owner of the inheritance ; and even the courts of law will 
 lay hold of any circumstance in order to prevent so gross an injus- 
 tice, and will presume the surrender of the term.[n) 
 
 The other cases, in which the surrender of an attendant term may, 
 or may not, be presumed, have already been considered at large in a 
 previous chapter.(o) 
 
 Where the trustee of a term marries a woman who has an estate 
 of freehold in the property, the term will not by this means become 
 merged in equity, whatever may be the case at law.(^) And in like 
 manner, if an attendant term become vested in the wife of the owner 
 of the inheritance, as administratrix of the previous trustee, there 
 will be no merger ; nor will the wife thus acquire any right, which she 
 would have had if the term had been vested, in a third person as 
 trustee. (g) 
 
 A trustee of a term, who is required to assign it, is unquestionably 
 entitled to satisfy himself as to the right of the party requiring the 
 assignment, by taking legal advice, and the costs and expenses thus 
 incurred must be defrayed by the persons by whom the assignment 
 is required. 
 
 (j) Ante, Pt. II. Ch. IV. Sect. 1 ; and (n) Lade v. Holford, Bull. N. P. 110 ; 
 
 see Goodson v. Ellison, 3 Russ. 583. Doe v. Staple, 2 T. R. 696 ; Doe v. 
 
 (_k) Ex parte Knott, 11 Ves. 613; 1 Syborn, 7 T. R. 2; Goodtitle v. Jones, 
 
 Sugd. V. & P. 520, 9th ed. id. 47 ; Bartlett v. Downes, 3 B. & Cr. 
 
 (/) Mole V. Smith, Jac. 490. 616. 
 
 (m) Willis «. Hiscox, 4 M. & Cr. 197; (o) Ante, p. 253, and notes, 
 
 vide ante, page 271, &c., and post, (p) Thorn u. Newman, 3 Sw. 603. 
 
 [Co.sts.] p. 551. (g) Mole V. Smith, Jac. 490. 
 
458 
 
 OF TRUSTEES OF EXECUTOET TRUSTS. 
 
 It may be observed, that where the trust term is in a different 
 diocese from that in which the trustee is domiciled, a prerogative 
 probate or administration will be requisite to enable his representa- 
 tive to transfer the term.(r) 
 
 [*328] 
 
 *II.— OF TRUSTEES OF AN ESTATE CLOTHED WITH ACTIVE 
 DUTIES. 
 
 I. Of Trustees of Exeoutokt 
 
 Trusts [328]. 
 II. Op Trustees for the Payment of 
 Debts [336]. 
 III. Of Trustees for the Payment op 
 
 Legacies [359]. 
 IV. Of Trustees for Raising Por- 
 tions [364]. 
 V. Of Investment by Trustees 
 [368]. 
 
 VI. Op Trustees fob Tenant for"' 
 
 Life [384]. 
 
 VII. Of Trustees fob Infants [395.] 
 VIII. Of Tbustees fob Mabried 
 
 Women [405]. 
 
 IX. Op Trustees op Freeholds 
 
 [428]. 
 X. Of Trustees of Copyholds 
 
 [429]. 
 XI. Of Trustees op Leaseholds 
 
 [432]. 
 XII. Op Trustees of Advowsons and 
 Presentations to Benefices 
 [439]. 
 
 XIII. Op Trustees OP Stock oe Shares 
 
 [445]. 
 
 XIV. Of Trustees op Choses in Ac- 
 
 tion [446]. 
 XV. Op Trustees for Charitable or 
 Public Purposes [449]. 
 
 I. — OF TRUSTEES OF EXECUTORY TRUSTS. 
 
 Where directions are given, for the execution of some future con- 
 veyance or settlement of trust property, but the particular limita- 
 tions are not fully or accurately specified, this is an executory trust, 
 and in carrying such a trust into execution regard must be had to the 
 general intention, rather than to the technical import of any particu- 
 lar expressions used. (a) 
 
 The distinction between trusts executed and executory, though 
 questioned by Lord Hardwicke in an early case,(6) has been long 
 firmly established as one of the settled doctrines of the court.' And 
 
 (r) 3 Sugd. V. & P. 14, 10th ed.; Fonbl. Eq. Tr. B. 1, Ch. 6, Sect. 8, n. 
 
 Crossley 1). Archdeacon of Salisbury, 3 (s) ; 2 Jarni. Pow. Bev. 441 to 445. 
 
 Hag. 201. (&) 2 Atk. 142;S. C. iVes. 142, 152; 
 
 (o) 7 Bac. Abr. [Uses and Trusts, Bagshaw v. Spencer. 
 K.]; Fearne, Cont. Rem. 124, et seq. ; 1 
 
 ' Dennison v. Goehring, 7 Barr, 177 ; 4 Kent. Comm. 218, &c. ; notes to Lord 
 Glenorchy v. Bosville, 1 Lead. Cas. Eq. 1 ; Wood'U. Burnham, 6 Paige, 518 ; 26 Weod. 
 19; Home v. Lyeth, 4 H. & J. 434; Garner v. Garner, 1 Desaus. 444; Porter v. 
 Doby, 2Rich. Eq. 49; Loving v. Hunter, 8 Yerg. 31; Edmohson v. Dyson, 2 
 Kelly, 307 ; Wiley v. Smith, 3 Id. 559 : Lessee of Findlay v. Riddle, 3 Binn. 152 ; 
 See Imlay v. Huntington, 20 Conn. 162; Neves v. Scott, 9 How. U. S. 211; U B. 
 Monr. 251. Land was conveyed to a trustee, to be by him laid off in lots, 
 
OF TRUSTEES OF EXECUTORY TRUSTS. 459 
 
 this doctrine applies equally, -whether the executory trust be created 
 by marriage articles, or by will or voluntary settleraent.(c) 
 
 But a material distinction has been recognised in equity between 
 an executory trust, founded on marriage articles, and one voluntarily 
 created, as by will. In the former case the object of the settlement 
 is usually to provide for the issue.(ci) ■ Therefore, unless the contrary 
 clearly appear, equity presumes, that it could not have been the in- 
 tention of the parties to put it in the power of the parent to defeat 
 the object of the settlement, by appropriating the whole estate ; and 
 on this presumption the articles will usually be decreed to be exe- 
 cuted by limitations in strict settlement. — And it is immaterial, that 
 the words of the articles, if strictly followed, would entitle the parent 
 to a more extensive interest : as for instance, where the covenant or 
 agreement is, to settle the estate on the parent for *life with 
 remainder to tJie heirs of his body, which according to the "- -" 
 rule in Shelly's case would give him an estate in tail. (e)(1)' 
 
 Although a settlement may have actually been executed in pursu- 
 ance of, and following verbatim, the terms of the articles, and the 
 instrument as framed limits to the husband an estate tail ; yet the 
 court will rectify such a settlement on behalf of the issue of the mar- 
 
 (c) Earl of Stamford v. Hobart, 1 Bro. {d) Blackburn v. Stables, 2 V. & B. 
 
 P. C. 288; Papillon «. Voice, 2 P.Wms. 369; Jervoice v. Duke of Northumber- 
 
 474; Leonard v. Earl of Sussex, 2 Vera, land, 1 J. & W. 574. 
 
 527 ; Countess of Lincoln v. Duke of (e) Trevor v. Trevor, 1 Eq. Ca. Abr. 
 
 Newcastle, 12 Ves. 227; Blackburn v. 387; S. C. 1 P. Wms.622; 1 Bro. P. C. 
 
 Stables, 2 V. & B. 269; Jervoice v. 122; Jones ■«. Laughton, 1 Eq. Ca. Abr. 
 
 Duke of Northumberland, 1 J. & W. 392 ; Nandick v. Wilkes, id. 393 ; Ca- 
 
 571-4; Rochfort v. Fitzmaurice, 2 Dr. sack«. Casack, 1 Bro. P. C. 470; Dodd 
 
 & W. 1, 20, 1. V. Dodd, Ambl. 274. , 
 
 (1) In the late case of Rochfort i). Fitzmaurice, it was laid down by Sir E. 
 Sugden, Lord Chancellor of Ireland, that there is no difference between execu- 
 tory trusts created by will, and those created by voluntary settlements. Indeed 
 his Lordship in that case denied the distinction between a will and marriage ar- 
 ticles in this respect. See Rochfort v. Fitzmaurice, 2 Dr. & W. 19, 20. 
 
 and sold, and the proceeds to be vested in other lands, to be selected by the 
 cestui que trusts, to be held by them respectively during their lives, with the re- 
 mainder to their heirs, and the trust was held executory. Berry v. Williamson, 
 11 B. Monroe, 251. 
 
 'Garner v. Garner, 1 Desaus. 444; Berry v. Williamson, 11 B. Monroe, 251. 
 See Imlay v. Huntington, 20 Conn. 146. But, where by marriage contract, exe- 
 cuted before marriage, personal property had been conveyed to a trustee, in 
 trust, " from and after the solemnization of said marriage, to the use and behoof of 
 (the intended wife) for and during the term of her natural life, and at her death, 
 to the heirs of her body, and their heirs for ever ; and if she should die without 
 such heirs, or having such heirs, they should die before they arrived at mature 
 age, then to her brothers by her mother's side, their heirs and assigns, for ever;" 
 it was held that the settlement was executed, not executory, and that the rule in 
 Shelley's case applied/ Carroll v. Renick, 7Sm. & M. 799. And see also Neve 
 V. Scott, 9 How. U. S. 196; and, generally, the notes to 1 Lead. Cas. Eq. 1. 
 
460 OP TRUSTEES OF EXECUTORY TRUSTS. 
 
 riage, by directing a limitation in strict settlement.(/) However in 
 one case, Lord Cowper refused to alter a settlement of this descrip- 
 tion, on the ground apparently, that it had been accepted by the par- 
 ties. (^) And if the settlement itself, as well as the articles, be 
 1^3.^^ previously to the marriage, and the settlement does not refer to 
 the articles, the court will not make any alteration in the settlement; 
 for it will be presumed to have been made in consequence of a new 
 agreement ; though it will be otherwise if the settlement be made 
 after the marriage. iji) 
 
 Where a partial provision is made by the articles for the issue of 
 the marriage, although that provision does not affect the whole of 
 the estate, which is intended to be settled, equity in decreeing the 
 execution of the trust will not extend that provision in favor of the 
 children, by directing a strict settlement of the whole, estate, for it is 
 not unreasonable for the parents to reserve some power to them- 
 selves.(«) And if by the articles the wife is to take an estate tail, 
 ex provisione viri, or a power of alienation is given to the husband 
 and wife jointly ; such limitations, being consistent with the probable 
 intention of the parties, will not be varied by the court in directing 
 the execution of the settlement. (^) 
 
 However, in executory trusts created by will, all parties claim 
 equally as volunteers under the bounty of the testator. In these 
 cases, therefore, the words of the will receive their full legal effect, 
 unless it appear from the will itself, that the testator's real meaning 
 would be frustrated by a strict execution of his directions. (Q 
 
 Thus in a case where a testator bequeathed money to be laid out 
 in the purchase of lands, and settled on A. and the heirs of his body, 
 Lord Cowper refused to direct the execution of the trust by a strict 
 settlement, and drew the distinction between a covenant to settle in 
 marriage articles, and a trust hy will, in which last case, he said that 
 r*^^m ^'^^^^ *^^ testator expresses *his intent to give an estate tail, 
 L -"a court of equity ought not to abridge his bounty.(»w) 
 
 (/) West V. Erissey, 2 P. Wms. 349; Tabl. 176 : Honor v. Honor, 1 P. Wms. 
 
 Roberts v. Kingsley, 1 Ves. 238; Honor 123. 
 
 V. Honor, 1 P. Wms. 128 ; 2 Vern. 658 ; {I) 2 Jarm. Pow. Dev. 442, etseq. : 1 
 
 see Powell v. Price, 2 P. Wms. 535. Fonbl. Tr.Eq. B. 1, Ch. 6, Sect.8, n.(s); 
 
 [See Neve v. Scott, 9 How. U. S 196.] 2 Story, Eq. Jur. J 974, &c.; Blackburn 
 
 (g) Burton v. Hastings, 1 Eq. Cas. v. Stables, 2 V. & B. 370. 
 
 Abr. 393; S. C. Gilb. Eq. Rep. 113. (m) Seale v. Seale, Preo. Chan. 421; 
 
 Qi) Legg V. Goldwire, Cas. Temp. S. C. 1 P. Wras. 290; and see Legatt d. 
 
 Talb. 20. Sewell, 1 Eq. Ca. Abr. 395; Sweetapple 
 
 (i) Chambers u Chambers, Fitzgibb. v. Bindon, 2 Vern. 536; Blackburn v. 
 
 127 ; S. C. 2 Eq. Ca. Abr. 35 ; Howell Stables, 2 V. & B. 367 ; Synge v. Hales, 
 
 V. Howell, 2 Ves. 358. 2 Ball & B. 499, 508; Britton i). Twi- 
 
 (Ji) Whately v. Kemp, cited 2 Ves. ning, 3 Mer. 176; Marshall v. Boase- 
 
 358; Green v. Ekins, 2 Atk. 473, 477; field, 2 Mad. 166; Lord Deerhurst v. 
 
 Highway v. Banner, 1 Bro. C. C. 584; Duke of St. Albans, 5 Mad. 260 
 see Streatfield v. Streatfield, Cas. Temp. 
 
OF TRUSTEES OF EXECUTORY TRUSTS. 461 
 
 In Blackburn v. Stablea, (n) a testator devised the residue of his 
 real and personal estate to trustees, in trust for the sole use of a son 
 of J. B. at the age of twenty-four, with a direction that the trustees 
 should not give up their trusts, till a proper entail was made to the 
 male heir by him (the son of J. B.) Sir Wm. Grant, M. R., after 
 observing that it was settled that the words of the will would make 
 an estate tail in the plaintiff (the son of J. B.), added, that there 
 was nothing in the context of the will in that case, to show that the 
 testator did not mean to use the words in their technical sense ; and 
 his Honor therefore declared, that the plaintiff was entitled to a con- 
 veyance in tail male.(m) 
 
 So in Britton v. Twining, (o) a testator, after directing 20,000Z. 
 in the three per cents "to be firmly fixed, and there to remain" du- 
 ring the life of his wife, for her to receive the interest, desired, that 
 after the death of his wife the same sum should be in the same man- 
 ner firmly fixed upon W. Cobb, and then continued as follows, — " I 
 say I would have it so secured that he may only receive the interest 
 of the same during his life, and after his decease to heir male of his 
 hody, and so on in succession to the heir-at-law, male or female. But 
 let it be noticed, that the principal 20,000?. stock is never to be 
 broken into, but only the interest to be received as aforesaid ; my 
 intent being, that there should always be the interest aforesaid to 
 support the name of Cobb as a private gentleman." Sir Wm. Grant, 
 M. R., said, he did not conceive that the testator in using the word 
 "secured" had any reference to a further or future settlement to be 
 made of the money ; and if he^ had, he did not see that there was 
 anything that would authorize the court to make the settlement in any 
 manner different from that, which the testator had himself directed. 
 And as the limitation to the heir male of W. Cobb would have given 
 him an estate tail in freehold property, notwithstanding the express 
 limitation to him for life, his Honor held that he took the absolute 
 interest in the fund in question.(p) 
 
 In Marshall v. Bousfield,(g') the testator devised real and personal 
 estate to his wife, upon trust, that she should enjoy the same during 
 her life, and after her decease that the same should be settled hy able 
 counsel, and go to and amongst his grandchildren of the male kind, 
 and their issue in tail male, and for want of such issue upon his 
 female grandchildren living at his decease, and he declared, that the' 
 shares and proportions of the male and female grandchildren and 
 their respective issues, should be in such proportions as his wife should 
 
 (n) Blackburn v. Stables, 2 V. & B. and see Countess of Lincoln v. Duke 
 
 367. of Newcastle, 12 Ves. 218. 
 
 (o) 3 Mer. 176. (g) Marshall v. Bousfield, 2 Mad. 
 
 (p) Britton v. Twining, 3 Mer. 176; 166. 
 
462 OF TRUSTEES OF EXBCUTOKT TKUSTS. 
 
 appoint. The ■wife appointed in favor of the testator's grandson 
 W., who was not born until after the testator's death, and the heirs 
 male of his body. It was objected, that this was an executory trust, 
 under which W. ought to have been made tenant for life with remain- 
 r*Dq-(-| der to his issue in strict settlement. But Sir Thomas Plu- 
 mer, *V. C, though he admitted that the trust was execu- 
 tory, held, that there was no sufficient indication of the testator's 
 intention in the will to enable the court to control the limitation to 
 the grandson in tail, and overruled the objection; thereby compel- 
 ling a purchaser to take a title founded on a recovery suffered by the 
 grandson W.(5') His Honor observed, that unless the grandchildren 
 took an estate tail, the limitation as far as regarded those born after 
 the testator's death was too remote. But devested of that circum- 
 stance, which appears to have been the peculiarity of the case, it has 
 been remarked by Mr^ Jarman that Marshall v. Bousfield is a very 
 strong case.(r) The estate was to be settled hy able counsel,{s) and 
 the word used was "issue" and not "heirs" or "heir" of the body,(i) 
 both which circumstances have been relied upon in other cases as fa- 
 vorable to the introduction of uses in strict settlement. Lord El- 
 don's judgment in the subsequent case of Jervoise v. The Duke of 
 Northumberland, (w) appears to be considerably at variance with the 
 decision in Marshall v. Bousfield, and has also much weakened the 
 authority of that decision. (a;) 
 
 If the directions of the testator as to the disposition of the trust 
 estate show, that he could not have intended the expressions to have 
 their strict technical operation ; the court in decreeing a settlement 
 will depart from the words in order to execute the intent.(«/) 
 
 However, a simple direction by a testator, to settle an estate on 
 A. for life and after A.'s death to the heirs of his body, will not 
 enable the court to restrict the estate tail, created by those words in 
 favor of A., to an estate for \iie.(z) There must be some stronger 
 and less equivocal expressions in addition to the mere limitation for 
 life, as for instance a direction, that the estate for life shall be with- 
 out impeachment of waste ;(a) or a limitation to trustees to preserve 
 contingent remainders ;[b) or a direction, that the estate, shall be 
 
 (5) Marshall v. Bousfield, 2 Mad. 166. (3/) 2 Jarm. Pow. Dev. 442, et seq.; 
 
 (r) 2 Jarm. Pow. Dev. 450. 2 Story, Eq. Jur. § 974, &o. 
 
 (s) White V. Carter, 2 Ed. 366; S. C. (2) Meure v. Meure, 2 Atk. 266; 
 
 Ambl. 670 ; Bastard v. Proby, 2 Cox, 6. Blackburn v. Stables, 2 V. & B. 370. 
 
 (<) Meure v. Meure, 2 Atk. 266 ; (a) Papillon v. Voice, 2 P. Wms. 
 
 Blackburn v. Stables, 2 V. & B. 371; 471; Lord Glenorchy v. Bosville, Cas. 
 
 see Slonor v. Curwen, 5 Sim. 264, 272 ; Temp. Taib. 3 ; Bagshaw v. Spencer, 1 
 
 Knight V. Ellis, 2 Brc' C. C. 570. Ves. 153. 
 
 («) IJ. & W. 559. (6) Papillon v. Voice, 2 ,P. Wms. 
 
 Iz) See 2 Jarm. Pow. Dev. 450. 471 ; Bagshaw v. Spencer, 1 Ves. 153. 
 
OF TRUSTEES OF EXECUTORY TRUSTS, 463 
 
 settled by legal advice ;(c) or that the tenant shall not have absolute 
 power over the estate.{d) However, it seems, that where the words of 
 limitation are to A.'s issue after his life estate, and not his heirs, the 
 court will execute the trust by giving A. an estate for life, and not 
 an estate tail ; on the ground of the different legal oper&tion of the 
 words "heirs" and "issue."(e) 
 
 On the same principle, where a testator has directed a settlement 
 of the devised estate, in a particular manner, the court, in order to 
 carry out his intentions, has ordered the insertion of a limitation to 
 trustees to preserve *contingent remainders,(/) and also 
 
 limitations in. cross remainder between two families. (gr) 
 
 [*332] 
 
 If there be any doubt aS to the technical operation of the words, 
 by which the testator has declared an executory trust, the court in 
 directing its execution will follow that construction, which it con- 
 ceives to be most agreeable to the intention ; for although the same con- 
 struction must be put upon the words whether the ti'ust be executed or 
 executory, yet that is only, where the words, which declare the exe- 
 cutory trust, are so clear in themselves as to point out what the trust 
 is to be. Thus in Stonor v. Curwen(A) a testator gave one-third -of 
 his residue to his niece, which he desired might be settled by his 
 executors on her /or her separate use during her life, but to devolve 
 to her issue at her death, and failing issue then to revert to his 
 nephew. Sir. L. Shadwell, V. C, said, that this was an executory 
 trust, as to which nobody could say, that the words used were so 
 clear, as at once to show what was the sort of conveyance meant, 
 and his Honor directed a settlement on the niece for life for her 
 separate use, with remainder to her issue living at her death, remain- 
 der in default of such issue to the nephew. (A) 
 
 In all the cases that have been hitherto considered, there was 
 a direction to the trustees in the will to settle or convey the estate; 
 but a distinction has been taken, where the testator merely directs 
 the purchase of the estate by the trustees, and himself declares the 
 uses of the estate when purchased : for in that case the court has no 
 power to alter or modify the testator's words. In Austen v. Tay- 
 lor the testator devised lands to A. for life without impeachment 
 of waste, remainder to trustees to preserve, remainder to the heirs of 
 the body of A., and bequeathed personal estate to be laid out in land, 
 
 (c) White V. Carter, 2 Ed. 366; Blackburn v. Stables, 2 V. & B. 371 ; 
 Ambl. 670; Bastard v. Pi'oby, 2 Cox, Stonor v. Curwen, 5 Sim. 272. 
 
 6; Eochfort v. Fitzmaurice, 2 Dr. & (/) Baskerville u. Baskerville, 2 Atk. 
 W. 1. 279; see Harrison v. Naylor, 2 Cox, 
 
 (d) Leonard v. Earl of Sussex, 2 248; 3 Bro. C. C. 108. 
 
 Vem. 525. (g-) Home i). Burton, Coop. 257. 
 
 (e) Meure v. Meure, 2 Atk. 266 ; (A) Stonor v. Curwen, 5 Sim. 264, 
 
 268. 
 
464 OF TRUSTEES OF EXECUTORT TRUSTS. 
 
 which should remain, continue, and he, to the same uses as the land 
 before devised. Lord Nor4;hington observed, that the testator had 
 referred no settlement to the trustees, but had declared his own uses 
 and trusts, which the court could not alter or change, and he ac- 
 cordingly held, that A. was tenant in tail of the lands to be pur- 
 chased. («) But some doubt has been entertained in the profession 
 as to the soundness of this last decision -.[k) and the distinction, on 
 which it was founded, has not been invariably adopted. In Meure 
 V. Meure(Z) trustees were directed to purchase lands, and to permit 
 the plaintiff and his assigns to receive the rents and profits during 
 his natural life, and after his decease then in trust for the use of the 
 issue of his body lawfully begotten: and Sir J. Jekyll, M. R., held, 
 that the plaintiff should be made only tenant for life of the lands to 
 be purchased. (Z) In this case it will be observed, that the lands to 
 be purchased were devised immediately to the limitations declared 
 by the will, without any direction to the trustees to settle, and the 
 estate tail clearly given to the plaintiff by those limitations was not- 
 withstanding modified by the court, to an estate for life. 
 - This at once leads to the observation, that it is only where some- 
 _.„„__ thing *is left incomplete and executory by the creator of the 
 L -' trust, that equity would mould or modify the words in order 
 to give effect to the intentions of the party. For if the limitations 
 of the trust estate are definitely and finally declared by the instru- 
 ment itself, that will be an executed trust ; and it must he carried 
 into execution as strictly and literally, as if it were a limitation of 
 the legal interest. (wi) 
 
 For instance, in Bale v. Coleman,(M) a testator devised lands to 
 trustees to pay debts and legacies, and then in trust for A. for life, 
 with power of leasing, and after his decease, in trust for the hein 
 male of his body. It was held by Lord Harcourt, Lord Keeper, re- 
 versing Lord Cowper's decision, that this was an executed trust for 
 A. in tail male, and the trustees were decreed to make a conveyance 
 to him accordingly. And this distinction was strikingly exemplified 
 in the case of Papillon v. Voice, (o) where there was a direct devise of 
 certain specified lands to A., with the same limitations as those de- 
 clared of the lands which the trustees were directed to purchase and 
 settle ; and A. was held to take an estate tail in the lands directly 
 
 (i) Austin V. Taylor, Ambl. 376; S. (0 Meure v. Meure, 2 Atk. 265. 
 
 C. 1 Ed. 361. (m) Jervoise «. Duke of Northumber- 
 
 (4) Ambl. 378; see Lord Eldon's land, IJ. &. W. 570, 1; ] Fonbl. Eq. 
 
 remarks in Green v. Stephens, 17 Ves. B. 1, Ch. 6, sect. 7; Fearne, Cont. Rem. 
 
 76; and in Jervoise v. Duke of Nor- 7th ed. 133 to 148. 
 
 thumberland, IJ. & W. 572; 2 Jarm. (n) 1 P. Wms. 142; S. C. 2 Vern. 670. 
 
 Pow. Dev. 445, 6; but see note 1, Ed. (o) 2 P. Wms. 477. 
 369. 
 
OF TRUSTEES OF EXECUTORY TRUSTS. 465 
 
 devised, although his estate in the lands to be purchased and settled 
 was restricted to one for life.(p) (1) 
 
 A direction, that property invested in the funds shall be ^'secured " 
 for the benefit of the legatee, will not be construed into an executory 
 direction, so as to enable the court to modify the bequest, which in 
 its terms gives the legatee the absolute interest, (g') And where there 
 are words of direct gift, as, for instance, a devise upon trust for such 
 person as shall from time to time be Lord V., the subsequent ad- 
 dition of the testator's motive or intention, — as, for example, a de- 
 claration that the property should go and be held with the title, as 
 far as the rules of law and equity would permit, — will not convert 
 the executed gift into an executory trust.(r) Where, however, the 
 estate is directed to be " purchased, "(s) or "settled, "(() or " con- 
 veyedj"(M) by the trustees, that is clearly an executory trust: and 
 so, it seems, is a devise to a person " to be entailed upon his male 
 heirs."(a;) 
 
 If a testator create an executory trust, which cannot be carried 
 strictly into execution, from its illegality, — as where it violates the 
 rules against perpetuity, — the court will endeavor to give effect to 
 the testator's intentions as far as possible, and the duty of the trus- 
 tees in such a case is to make as strict a settlement as the law will 
 allow. Therefore, where there *was a devise to a corpo- 
 ration, in trust to convey to A. for life, and afterwards to his ^ -• 
 first son for life, and so to the first son of that son for life, with 
 remainder in default of such issue to B. for life, and his sons and 
 their sons for their lives in the same manner. Lord Cowper said, 
 that though the attempt to create a perpetuity was vain, yet so far 
 as consistent with the rules of law, it ought to be complied with ; and 
 
 {p) And see Jones v. Morgan, 1 Bro. («) Papillon v. Voice, 2 P. Wms. 
 
 C. C. 206; Wright v. Pearson, Ambl. 471; Meure v. Meure, 2 Atii. 265; 
 
 358; Garth v. Baldwin, 2 Ves. 646; White t). Carter, 2 Ed. 366. 
 
 DeerhurstiJ. Duke of St. Albans, 5 Mod. (i) Leonard v. Earl of Sussex, 2 Vern. 
 
 232, 277; Douglass v. Congreve, 1 525; Stonor v. Curwen, 5 Sim. 264; 
 
 Beav. 59, 71. Burrell v. Crutchley, 15 Ves. 552. 
 
 (5) Brilton v. Twining, 3 Mer. 176, (11) Lord Glenorchy v. Bosville, Ca. 
 
 182. Tern. Talb. 3; Humberston v. Humber- 
 
 (r) Lord Deerhurst v. Duke of St. ston, 2 Vern. 737. [Edmondson v. Dy- 
 
 Albans, 5 Mad. 232, 277; S. C. on ap- son, 2 Kelly, 307; Tallman v. Wood, 
 
 peal, sub nom.; Tollemache v. Earl of 26 Wend. 9; 6 Paige, 513.] 
 
 Coventry, 2 CI. & Fin. 611, and 8 (a;) Jervoise u Duke of Notlhumber- 
 
 Bligh, N. S. 547. land, IJ. & W. 559, 72. 
 
 (1) It is extremely difficult to reconcile Lord Hardwicke's decision in Bagshaw 
 V. Spencer. 1 Ves. 142, with the principle of these cases. See Fearne, Cont. 
 Rem. 133 to 148; Jervoise v. Duke of Northumberland, 1 J. & W. 572, 
 
 30 
 
466 OF TRUSTEES OF EXECUTORY TRUSTS. 
 
 he directed that all sons already born should take estates for life 
 with limitation to the unborn sons in tail.(^) 
 
 So it frequently happens that a testator, in creating an executory 
 trust, makes use of expressions, which of themselves have no strict 
 technical operation, and which must therefore receive some definite 
 construction, in order to the execution of the trust. In these, as in 
 other cases depending on the construction of wills, the rule is, to 
 carry out as far as possible the intentions of the testator. 
 
 Thus, where a trust was created by will to purchase land, to be 
 added and closely entailed to the testator's family estate in the pos- 
 session of T. B., and the testator declared by a codicil, that his 
 object was to have a head to the family, and that if T. B. should die 
 without male issue, or dispose of the family estate, the residue of his 
 fortune should go to A. B., or his nearest relative in the male line, — 
 the court directed such limitations to be inserted in the settlement, 
 as would best effectuate the obvious intentions of the testator, by , 
 tying up both the estates in his family as far as possible, (g) 
 
 So in the case of Lord Dorchester v. Earl of Effingham, (a) Guy 
 Lord Dorchester was tenant for life of settled estates with remainder 
 to his sons and their issue, so that his sons were tenants for life, and 
 their sons tenants in tail, and he had a general power of revocation 
 and new appointment by deed or will. He made his will, in which 
 there was the following expression : " all my landed estate to he at- , 
 tached to my title as closely as possible;" and he left his timber and 
 residuary personal estate to his executors, in trust " to increase his 
 landed property." On the death of Guy, the next, Lord Dorchester, 
 who was his grandson and tenant in tail under the original settle- , 
 ment, came into possession, and filed a bill, praying to be declared, 
 tenant in tail. But it was held by Sir Wm. Grant, M. R., that the 
 effect of the will was to reduce the estates tail of the plaintiff Lord 
 Dorchester, and of all the other issue male, to estates for life, and his 
 Honor directed the estates to be purchased with the timber money 
 and personal estate, to be settled accordingly. 
 
 In the recent case of Bankes v. Le Despencer,(6) the same prin- 
 ciples of construction were applied to an executory trust created by 
 deed. There, Thomas Lord Le Despencer, by deed conveyed real 
 estates to trustees, in trust, after the death of himself and his eldest 
 
 {y) Humberston v. Humberston, 2 (6) Bankes v. Le Despencer, 10 Sim. 
 Vera. 737; S. C. 1 P. Wms. 332; Prec. 576; [11 Sim. 508;] see Countess of 
 Ch. 455. Lincohi v. Duke of Newcastle, 12 Ves. 
 {z) Woolmore I). Burrows, 1 Sim. 512. 218; Deerhurst v. Duke of St. Albans, 
 (a) 3 Beav. 180, n.; S. C. stated, 10 5 Mad. 232; Jervoise v. Duke of North- 
 Sim. 592 ; [and see Rowland v. Morgan, umberland, 1 J. & W. 559 ; Blackburn 
 13 Jut. 23.] v. Stables, 2 V. & B. 367. [Rowland v. 
 
 Morgan, 13 Jur. 23.] 
 
OF TRUSTEES OF EXBOCTORY TRUSTS. 467 
 
 son to settle the estates to the use of such persons for such estates 
 and in such manner that the same should, so far as the law would 
 permit, be strictly settled, so as to go along with the dignity of Le De- 
 spencer, so long as the person *possessed of the same dignity- 
 should be a lineal descendant of the settlor. It was held by ^ -• 
 Sir L. Shadwell, V. C, that this was a case in which it was the dutj 
 of the court to try to give effect to the intention of the parties, by 
 making a settlement', and his Honor accordingly referred it to the 
 Master, to approve of a proper settlement according to the language 
 of the trust. (6) 
 
 It seems, however, that the court will not enforce the execution of 
 an executory trust of this loose and uncertain description, if it be 
 founded upon mere precatory expressions, or words of recommenda- 
 tion. Thus in Knight v. Knight(c) a testator made an absolute gift 
 of all his real and personal estate to his next male descendant, who 
 should survive him ; adding, that he trusted to the justice of Ms suc- 
 cessors in continuing the estates in the male succession according to 
 the will of the founder of the family, and Lord Langdale, M. R., 
 held, that the directions were not sufficiently imperative, to be en- 
 forced as a trust against the devisee, (c) 
 
 There is no doubt, but that personal estate may be made the sub- 
 ject of an executory trust, which will be carried into execution in the 
 same manner and to the same extent as that of real estate, (c^) But 
 it is to be observed, that, in accordance with the rules of law on this 
 point, where such words are used as would be executed by the crea- 
 tion of an estate tail in real estate, the party will be entitled to the 
 absolute interest in the personalty ; and it has been seen that a di- 
 rection that the property is to be " settled" or " secured" will not 
 prevent the application of this doctrine. (e)' 
 
 (6) Bankes w. Le Despencer, 10 Sim. (c) Knight v. Knight, 3 Beav. 148 
 
 576; [see the form of settlement finally 177. [Aff'd. 11 CI. & F. 513.] 
 approved in this case, 11 Sim. 508;] (d) Stonor tj. Curwen, 5 Sim. 264. 
 see Countess of Lincoln v. Duke of (e) Lord Chatham v. Tothill, 7 Bro. 
 
 Newcastle, 12 Ves. 218; Deerhurst v. P. C. 453; Countess of Lincoln r. Duke 
 
 Duke of St. Albans, 5 Mad. 232; Jer- of Newcastle, 12 Ves. 218; Britton v. 
 
 voise V. Duke of Northumberland, 1 J. Twining, 3 Mer. 176; Deerhurst v. Duke 
 
 & W. 559 ; Blackburn v. Stables, 2 V. of St. Albans, 5 Mad 232. [Rowland 
 
 & B. 367. V. Morgan, 13 Jur. 23.] 
 
 ' In the recent case of Rowland v. Morgan, 13 Jur. 23, the Earl of Aberga- 
 venny had bequeathed to his son Viscount Neville, and his heirs, Earls of Aber- 
 gavenny, certain chattels, consisting of plate, jewels, and other ornamental arti- 
 cles, to be held as heir-looms, and directed his executors to make an inventory of 
 such chattels. By a codicil to the will, the testator declared it to be his will, that 
 in addition to the articles which he had made heir-looms in his will, certain other 
 articles of the same description, deposited in apartioular locality, should be con- 
 
468 OF TRUSTEES FOR THE PAYMENT OF 
 
 In conclusion of this subject, it may be stated generally for the 
 •guidance of trustees, that where an executory trust arises on mar- 
 riage articles, whose object is to provide for the husband and wife and 
 their issue, the trustees will be justified in executing the trust by 
 limiting the estate in strict settlement, although it would certainly 
 be the more prudent course for them to obtain a declaration of the 
 court for their guidance even in these cases. 
 
 But where the trust is created by will, and the testator has not 
 himself distinctly and accurately specified the limitations which are to 
 be inserted, trustees could seldom or ever be advised to take upon 
 themselves the responsibility of putting a construction on the direc- 
 tions of the testator, by the execution of any particular settlement; 
 this can be done with safety only under the sanction of the court. 
 And the same remark applies to executory trusts, created by any 
 voluntary deed or instrument operating inter vivos. 
 
 If a husband have entered into articles on his marriage, binding 
 himself to make a particular provision for his wife and children, it 
 will not be competent for the trustees of their own authority to ac- 
 cept any other provision in lieu of that contemplated by the articles ; 
 although they will be *justified in instituting a suit, for the 
 L -I purpose of bringing the propriety of such a substitution before 
 the court.(/) 
 
 II. — OF TRUSTEES FOR THE PAYMENT OF DEBTS. 
 1st. Where the Trust is cheated by Deed. — 2d. Where by a Devise 
 
 FOR PAYMENT OF DeBTS. 
 
 \st. Of Trustees for the payment of Dehts, where the Trust is created by Deed. 
 
 A conveyance or assignment of real or personal estate to trustees, 
 (/) Cooke V. Fryer; Vice-Chancellor Wigram, 19th November, 1844, MS. 
 
 sidered as heir-looms, and he gave the same to his executors as heir-looms in 
 his family, and directed an inventory to be made of them at the death of the 
 testator. His son succeeded to the title, and also to certain estates annexed to the 
 title, and strictly and inalienably settled in tail male. It was held, in accordauce 
 with the text, that the chattels had become the absolute property of Viscount 
 Neville at the death of his father. It is to be remarked, however, on this case, 
 and those above cited, that a different doctrine had been held by Lord Hard- 
 vrioke, in Gower'V. Grosvenor, 3 Barn. 54; 5 Madd. 337; and TrafFord v. Traf- 
 ford, 3Atk. 347; and that, though these last decisions were overruled in Foley 
 V. Burnell, 1 Bro.C. C.274; 4 Br. P.O. 319(A.D. 1783, 1785); it was regretted by 
 Lord Eldon in Countess of Lincoln v. Duke of Newcastle, 12 Ves. 218, and 
 Lord Cottenham in Rowland v. Morgan, that they had been departed from, as 
 they " were not obnoxious to any principle, and enabled the court to carry into 
 effect the very obvious intentions of the testator." Should the question, there- 
 fore, ever arise in the United States, it may perhaps be still considered an open 
 one. See 2 Kent's Comm. 253, &c. ; 4 Id. 279. 
 
DEBTS UNDER A DEED. 469 
 
 in trust, for the payment of the debts of the grantor, is of very fre- 
 quent occurrence, and such a trust may either be limited to the pay- 
 ment of one particular debt,(a) as in the case of a mortgage, which 
 is frequently taken in this form, or of several debts, specified in the 
 deed or in a schedule annexed to it.(J)' Or the trust may be ex- 
 tended generally for the benefit of all the grantor's creditors,(c) or 
 all such of them as may execute or otherwise assent to the deed •,{d) 
 and this either equally and without distinction,(e) or with certain 
 priorities and preferences amongst them.(/) And the debts may 
 be directed to be paid either in full,(5^) or according to a certain 
 composition or proportion fixed by the deed. (A)'' 
 
 (a) Page v. Broom, 4 Russ. 6. [See Garrard v. Lord Lauderdale, 3 Sim. 1 ; 
 
 Cooper 1). Whitney, 3 Hill, 95.] Ex parte Richardson, 14 Ves. 184. 
 
 (6) Walwyn v. Coutls, 3 Mar. 707 ; (e) Carr v. Countess of Burlington, 1 
 
 S. C. 3 Sim, 14; Garrard v. Lord Lau- P. Wms. 228; Acton v. Woodgate, 2 
 
 derdale, 3 Sim. 1 ; Purefoy v. Purefoy, M. & K. 492 ; Hamilton v. Houghton, 
 
 1 Vern. 28; Shirley v. Earl Ferrers, 1 2 Bligh, 169. 
 
 Bro. C. C 41 ; Hamilton v. Houghton, (/) Purefoy v. Purefoy, 1 Vern. 28 ; 
 
 2 Bligh, 169; Boazman v. Johnston, 3 Walwyn v. Coutts.. 3 Mer. 707 ; 3 Sim. 
 Sim. 377. 14; Garrard v. Lauderdale, 3 Sim. 1. 
 
 (c) Barwell ii. Parker, 2 Ves. 364; (g-) Carr «. Countess of Burlington, 1 
 
 Acton V. Woodgate, 2 M. & K. 492 ; P. Wms. 228 ; Acton v. Woodgate, 2 
 
 Hinde v. Blake, 3 Beav. 234; Carr v. M. & K. 492; Hamilton v. Houghton, 
 
 Countess of Burlington, 1 P. Wms. 228. 2 Bligh, 169. 
 
 (tZ) Dunch V. Kent, 1 Vern. 260; (A) Stephenson v. Hayward, Prec. 
 
 Spottiswoode v. Stockdale, Coop. 102; Ch.310; Constantein u. Bleache, 1 Cox, 
 
 287 ; Tatlock v. Smith,'6 Bingh. 339. 
 
 ' But in Manufacturers and Mechanics' Bank v. Bank of Pennsylvania, 7 W. & 
 S. 335, it was held that a mortgage, limited to a trustee, with power to sell for 
 the payment of a debt secured by it, was not a voluntary assignment within the 
 Pennsylvania Act; and see Barker v. Hall, 13 N. H. 298; Davis v. Anderson, 1 
 Kelly(Geo.), 176, accord. But see cases cited in Burrill on Assignments, 32, from 
 other States. In Watson v. Bagaley, 12 Penn'a. St. 164, a power of attorney to 
 collect certain moneys and to pay them to certain creditors in prescribed order 
 of preference, was held an assignment. 
 
 ' Assignments for the benefit of creditors, though containing preferences, are 
 in general held valid in the United Slates, where not interfering with the policy 
 of a bankrupt law, or other statutory regulation. Brashear i). West, 7 Pet. 609; 
 Lippincott 1). Barker, 2 Binn. 174; Walker ij. Ferris, 5 John. R. 3'35; and other 
 cases cited in the note to Thomas v. Jenks, 1 Am. Lead. Cas. 89, (2d ed.) In 
 some of the States, however, as Ohio, Pennsylvania, New Jersey, Maine, New 
 Hampshire, and Connecticut, preferences are abolished, and the trust enures to 
 the benefit of all the creditors (Am. Lead. Cases, 85). In many of the States it 
 has been held by the courts, or declared by statute, that a stipulation for releases 
 renders an assignment void as to non-assenting creditors, where there is a re- 
 sulting trust for the grantor, Wakeman v. Grover, 11 Wend. 187; Goodrich «. 
 Downs, 6 Hill's N. Y. 438; Robins i;. Embry, 1 Sm. & M. Ch. 208; Atkinson v. 
 Jordan, 5 Ohio, 293 ; Hafnert;. Irwin, 1 Ired. Law, 490; Brown v. Knox, 6 Mis. 
 302; Pearson t). Crosby, 23 Maine, 261; 1 Am. Lead. Cases, 95; Ingraham v. 
 Wheeler, 6 Conn. 277; Howell v. Edgar, 3 Scamm. 417; Swearingen v. Slicer, 
 
470 OP TRUSTEES FOR THE PAYMENT OF 
 
 An arrangement of this description, if made under a contract with 
 the creditors, or when accepted or acted upon by them, is valid(l) 
 
 (1) A conveyance by deed for the payment of debts generally was not within 
 the Statute of Fraudulent Devises (3 W. & M. c. 14), altliough the jights of spe- 
 cialty creditors might thus be prejudiced in favor of those by simple contract. 
 Parslow V. Weedon, 1 Eq. Cas. Abr. 149; see Prec. Ch. 521 ; 1 Fonbl. Eq. Tr. 
 B. 1, ch. 4, s. 14. And this is equally an authority against the appliyation of 
 the recent statute, 1 Will. IV. c. 47 (by which that of William and Mary was 
 repealed), to conveyances of this description. 
 
 So, a conveyance in trust for creditors is not v;ithin the statute 13 Eliz. c. 5, for 
 avoiding alienations of property made in fraud of creditors. Estwich v. Cailland, 
 5 T. R. 424; Mense v. Howell, 4 East, 9. [Wilti;. Franklin, 1 Binn.514; and 
 cases cited in note to Thomas v. Jenks, 1 Am. Lead. Cases. 78.] 
 
 Although such a conveyance will be void under that statute, if it be attended 
 by fraudulent circumstances, as where the conveying party remainsin possession 
 of the property ; Twyne's case, 3 Rep. 80, b. [1 Smith Lead. Cases, 1; Am. 
 notes] ; Edwards v. Harben, 2 T. R. 587 ; Worsely v. Demattos. 1 Burr. 467. 
 However, possession retained by the assignor, though a strong circumstance of 
 evidence of fraud, may be rebutted, and the assignment supported. ' Eastwood 
 ■u. Brown, 1 R. & M. 312 ; Hoffman v. Pitt, 5 Esp. 25; Benton v. Thornhill, 7 
 Taunt. 149 ; Manton v. Moore, 7 T. R. 70. [In New York, retention of posses- 
 sion by the assignor, of property assigned for the benefit of creditors, make? the 
 assignment void. Dewey v. Adams, 4 Edw. Ch. 21 ; Connah v. Sedgwick, 1 
 Barb. 210. So, in Vermont, such retention is fraudulent as to attaching creditors. 
 Rogers v. Vail, 16 Verm. 329. So, in Indiana, Caldwell v. Williams, 1 Carter, 
 405. In other States, however, it is not in itself fraudulent, where before the lime 
 of sale, but may be evidence of fraud. Brooks v. Marbury, 11 Wheat. 82; 
 Vernon v. Morton, 8 Dana, 247; Pike v. Bacon, 8 Shepley, 280; Christopher v. 
 Carrington, 2 B. Monr. 357; Ravisies v. Alston, 5 Alab. 277; Barker u. Hall, 13 
 N. H. 298; Darwin v. Hanley, 3 Humph. 502 ; Dewey v. Littlejohn, 2 Ired. Eq. 
 495; Hardy v. Skinner, 9 Ired. Law, 191 ; see Lockharl v. Wyatt, 10 Alab. 231. 
 In Connecticut, under the statute of 1828, where its requisitions have been com- 
 plied with, retention of possession is not fraudulent, unless the trustee permits the 
 assignor to hold himself forth to the world as the owner of the property. Osborne 
 V. Fuller, 14 Conn. 5;i0; Strong d. Carrier, 17 Conn. 329. So, in Pennsylvania, 
 
 5 Miss. 241; The Watchman, Ware, 232; 1 Am. Lead. Cases, 95; so, where 
 preferences are given, Wakeman v. Grover, Robins "u. Erabry, ut supra;' Barrett 
 V. Reads, Wright, 701. But in other States it has been held, that assignments 
 for the benefit of releasing creditors are valid. Lippincott v. Barker, 2 Binn. 174; 
 Skipwith'sExr.t). Cunningham, 8 Leigh, 272; Le Prince u.Guillemott, 1 Eich.Eq. 
 187 ; Brashears v. West, 7 Pet. 609; Halsey v. Whitney, 4 Mason, 207; Borden 
 V. Sumner, 4 Pick. 265; 1 Am. Lead. Cases, 84. In Pennsylvania, now. by 
 Act of 1849, a condition for a release is declared void. In all cases, however, a 
 stipulation for a release in an assignment, which does not in its terras pass all 
 the debtor's property, or by which any benefit is stipulated to him, renders the 
 whole fraudulent and void. Seaving ■«. Brinkerhoff',5 J. C. R. 329: Skipwithu 
 Cunningham, 8 Leigh, 272; Thomas i;. Jenks, 5 Rawle, 221; Hennessey «. Wes- 
 tern Bank, 6 Watts. & Serg. 301. See this subject very fully and ably discussed, 
 and the various cases with regard to the validity of assignments collected in the 
 note to Thomas v. Jenks, 1 Am. Lead. Cases, 89. Most of the States have ex- 
 press statutes regulating the subject, which it would be inconvenient to detail 
 here. 
 
DEBTS UNDER A DEED. 471 
 
 and binding *on all the parties ;(i) and the court will inter- p^gg,^-, 
 fere by injunction to restrain the commission of any act by L 
 which the arrangement would be violated.(/(;) And in equity, a 
 judgment obtained by a creditor subsequently to his execution of 
 the deed of trust will not bind the property which passed by the 
 
 deed.(Z)' 
 
 However, it has been decided, that where there is a voluntary con- 
 veyance or assignment of property to trustees, upon trust for the 
 benefit of creditors, but the transaction is not communicated to the 
 creditors, and they are not made parties to the deed, and are not 
 privy to its execution, this merely confers a power on the trustees, 
 which may be revoked or altered at the will of the grantor : and the 
 creditors, though named in the schedule to the deed, cannot enforce 
 the execution of the trust either as against the grantor, or the trus- 
 tees, (m)^ 
 
 But it seems to have been the opinion of Sir J. Leach, in Acton 
 V. Woodgate,(w) in opposition to that expressed by Sir L. Shadwell, 
 V. C, in Garrard v. Lord Lauderdale,(o) that the communication by 
 the trustees to the creditors, of the creation of such a trust, would de- 
 feat the power of the grantor to revoke it. And it has been decided 
 in a recent case, that the trustees of such a deed, who had acted upon 
 it by making payments in advance, were at any rate entitled to an 
 
 (i) Small 0. Marwood, 9 B. & Cr. (m) Walwyn v. Coutts, 3 Mer. 707 ; 
 
 300. 3 Sim. 14; Page v. Broom, 4 Russ. 6; 
 
 (A) Ex parte Sadler, 15 Ves. 52; Garrard v. Lauderdale, 3 Sim. 1; S. C. 
 
 Mackenzie v. Mackenzie, 16 Ves. 372; 2 R. & M. 451 ; Acton v. Woodgate, 2 
 
 Spotliswoode v. Stockdale, Coop. 102. M. & K. 492; see Bill v. Cureton, 2 M. 
 
 (/) Stephenson v. Hayward, Free. & K. 511. 
 
 Chan. 310. in) 2 M. & K. 495. 
 
 (o) 3 Sim. 13. 
 
 under the Act of 1836. Filler v. Maidand, 5 W. & S. 307 ; Dallam v. Filler, 6 
 W. & S. 323 ; Klapp v. Shirk, 13 Penn. St. R. 589.] 
 
 But a conveyance by a trader of all his property in trust for creditors is void 
 within the policy of the Bankrupt Laws, if a commission issue within six months 
 from its execution, according to the 4th section of 6 Geo. IV. c. 16. 
 
 Although a similar disposition of part of the trader's property is good, unless 
 made in contemplation of bankruptcy, and with a view to a fraudulent prefe- . 
 rence; when it will be void. Bevan v. Nunn, 9 Bingh. 107. 
 
 By the Insolvent Act, 7 Geo IV. c. 57, s. 32, a similar disposition of any pro- 
 perty by an insolvent is made void, if made with a view to his taking the benefit 
 of the act, or within three months before his imprisonment under the act. 
 
 ' But neither in law or in equity will an assignment preclude an assenting 
 creditor from obtaining a formal judgment for his debt. Le Prince v. Guil- 
 lemott, 1 Rich. Eq. 220; Bank of U. S. u. Comm. 17 Penn. St. R. 400; Trot- 
 ter V. Williamson, 6 Monr. 39; see Rice v. Catlin, 14 Pick. 231 ; New England 
 Bank v. Lewis, 8 Pick. 113. 
 
 * See note, ante, to page 83. 
 
472 OF TRUSTEES FOE THE PAYMENT OP 
 
 answer to a bill filed by them against the author of the deed, and the 
 person in whom the legal interest in the assigned property was vested, 
 to obtain possession of the property ; and Lord Langdale, M. R., in 
 overruling the demurrer in that case, appears to have been strongly 
 inclined to support the validity of the deed on general grounds.(p) 
 
 Where a deed of assignment and composition for the benefit of cre- 
 ditors generally declared, that if all the creditors to a certain amount 
 did not execute the deed, or accede to its terms by a certain day, the 
 assignment should be void ; and the deed was not executed or acceded 
 to by two of the creditors within the prescribed time, but they had 
 notwithstanding acted under it; it was held by Lord Eldon, that the 
 deed, though void at law, was under the circumstances valid and bind- 
 ing in equity. (g) 
 
 And even at law a composition deed will not be held void, because 
 one of the two trustees refuses to execute it ; although there is a pro- 
 viso, that both should execute by a specified time.(r) 
 
 But where the deed is expressly stated to be made with, and the 
 trusts are declared for, the benefit of those creditors who should he- 
 come parties to it, it seems that even in equity no creditor who hag 
 i-^ooQ-i not executed the *deed, will have any right to enforce its pro- 
 visions. (s)> However, in a late case in Ireland it was held, 
 by Sir E. Sugden, L. C, that it is not absolutely necessary, that 
 
 (p) Hinde v. Blake, 3 Beav. 234. 360 ; see Good v. Cheesman, 2 B. & 
 
 (5) Spottiswoode v. Stockdale, Coop. Ad. 328. 
 
 102; and see Dunch v. Kent, 1 Vern. (s) Garrard v. Lord Lauderdale, 3 
 
 260. Sim. 13;^ see Balfour v. Welland, 16 
 
 (r) Small v. Marwood, 9 B. & Cr. Ves. 151, 'l57. 
 
 ' The doctrine of the American cases on this subject appears to be that where 
 a trust is created for the benefit ol third persons without their knowledge, 
 they may, as soon as they have notice 'of it, afRrm the trust, and call upon a 
 court of equity to enforce the performance of it. Moses v. Murgatroyd, 1 Johns. 
 Ch. Rep. 129; Neilson v. Blight, 1 Johns. 205; Weston v. Barker, 12 Johns. Rep. 
 281. And Chancellor Kent observes, 4 Com. 307, 3d ed., that this doctrine is 
 much and quite unreasonably restricted in the case of Garrard v. Lord Lauder- 
 dale, cited in the text; that in Marigny v. Remy, 15 Martin's Louis. Rep. 607, 
 it was decided, that one might have an action on a stipulation in his favor in a 
 deed to which he was not a party, and that the doctrine was conformable to the 
 French law. TouUier, Droit Civil; liv. 3, c. 2, n. 150. In the case of an assign- 
 ment to trustees for the benefit of creditors, in this country, the legal estate passes 
 to, and vests in the trustees; and a court of equity will compel the execution of 
 the trust for the benefit of the creditors, though they be not, at the time, assenting, 
 and parties to the conveyance. Nicoll v. Mumford, 4 Johns. Ch. Rep. 529; 
 Brooks V. Marbury, 11 Wheaton, 97; Gray v. Hill, 10 Serg. & Rawle, 436; Hal- 
 sey V. Whitney, 4 Mason, 206. The assent of absent persons to an assign- 
 ment will be presumed, unless their dissent be expressed, if it be made for a 
 valuable consideration, and be beneficial to them. North v. Turner, 9 Serg. & 
 Rawle, 224; De Forest v. Bacon, 2 Conn. Rep. 633.— T. [See ante, p. 83, and 
 note; and Burrill on Assignments, p. 280, 306.] 
 
DEBTS UNDER A DEED. 473 
 
 every creditor seeking the benefit of a trust deed made by the debtor, 
 should actually subscribe the deed ; although the court will see, that 
 he has performed all the fair conditions of the deed, before it suffers 
 him to take any benefit under it ; and if he has taken any step in- 
 consistent with its provisions, it will deprive him of all advantage 
 under it.(<:) 
 
 Where some of the creditors have executed a composition deed, by 
 which an estate is conveyed for the payment of debts generally, but 
 others refuse to execute, it has been held that a suit by those who 
 have executed, to have the trust performed by the sale of the estate, 
 cannot be maintained. (w) 
 
 If a trust be created by deed for the payment of debts, generally, 
 or of the debts specified in a schedule, and a bill be filed by one of 
 the creditors to enforce payment of his debt ; that purpose can only 
 be effected by the general execution of the trust; and the decree 
 ought to direct an account and payment of all the debts, and a de- 
 cree for the payment of the plaintiff's debt only is erroneous. (a;)' 
 
 In a suit by a creditor to enforce the execution of such a trust 
 deed, the then existing trustees must be before the court, and a de- 
 
 (i) Field v. Lord Donoughmore, 1 Dr. (x) Hamilton v. Houghton, 2 Bligh, 
 & Warren, 227. 169, 187. 
 
 (u) Atherton v. Worth, 1 Dick, 375. 
 
 'Wakeman v. Grover, 4 Paige, 24; Russell v. Lacker, 4 Barb. S. C. 233; 
 Br>-ant v. Russell, 23 Pick. 523; Reynolds v. Bank of Virginia, 6 Gratt. 174; 
 Haughton v. Davis, 23 Maine, 28 ; Fisher v. Worth, 1 Busbee, Eq. (N. C.) 63 ; 
 see Weir v. Tannehill, 2 Yerg. 56. So where the bill is for impeaching the trust 
 deed. Stout v. Higbee, 4 J. J. Marsh. 632. But in Ohio it has been held, that the 
 creditor first filing a bill for that purpose, is entitled to priority. Atkinson v. Jordan, 
 Wright, 247. So in New York, under the Revised Statutes. Corning v. White, 
 2 Paige, 567; Burrell v. Leslie, 6 Paige, 445; see, also, Lucas v. Atwood, 2 
 Stewart. 378. The effect of setting aside such deed, is to leave the creditors 
 to enforce their claims and obtain satisfaction according to their legal priorities; 
 or, if the court takes charge of the fund, it will direct them to be paid accord- 
 ing to their legal rank. Gracey v. Davis, 3 Strobh. Eq. 58 ; Austen v. Bell, 20 
 John. 442; McDermott v. Strong, 4 J. C. R. 687; McMeekin v. Edmonds, 1 
 Hill's Eq. 293. But this depends upon diligence at law; equity will, otherwise, 
 distribute the assets pari passu ; Codwise ^.Gejston, 10 Johns. R. 519; and, there- 
 fore, a creditor obtaining judgment after the assigned property has been sold, has 
 no priority on the fund. Le Prince v. Guilleraott, 1 Richardson's Eq. 220; 
 Gracey v. Davis, ut supr. Where a bill had been filed by the representatives of 
 one creditor only, and it appeared that no claim had been made by the others 
 for twenty years, during which the trust fund had been constantly in controversy, 
 and the trustee had repeatedly stated to the plaintiif that the creditor had been 
 satisfied, it was held that the trustee could not set up the defence of want of 
 proper parties. Muraford v. Murray, 6 J. C. R. 1. Where the assignment e.x- 
 pressly stipulates that the surplus shall be paid over to the assignor, he must also 
 be made a party, Haughton v. Davis, 23 Maine, 28; otherwise if the assignment 
 be unconditional. Hobart v. Andrews, 21 Pickering, 532. 
 
474 OF TRUSTEES FOR THE PAYMENT OF 
 
 cree taken in their absence cannot be sustained. («/) But tbe heir of 
 the grantor need not be made a party to the suit, unless he be en- 
 titled to the surplus ; though it is otherwise with regard to a trust 
 created by will. (2) 
 
 It is in the power of the party who by deed vests property in 
 trustees for the payment of his debts, to prescribe the manner in 
 which the trust shall be carried into execution ;(a) and in paying the 
 debts the trustees are bound to follow the directions of the deed ; and 
 if by the terms of the trust any particular debts are to have pre- 
 P^„nQ-. ference or priority, they must *first be discharged.(J) 
 '- -' Thus where two persons made an assignment of their joint 
 property to trustees in trust, in the first place to pay their joint debts, 
 and then as to a moiety to pay the separate debts of one of them, 
 the joint creditors were held to be entitled to receive their debts with 
 interest, before the separate creditors took anything.(c)' However, if 
 no preference be given by the deed to any one debt, and a fortiori 
 if there be an express direction, that all the debts are to be paid 
 
 (»/) Hamilton v. Houghton, ubi su- (6) See Garrard ti. Lauderdale 3 Sim. 
 
 pra; but see Eouth v. Kinder, 3 Sw. 1; Douglas v. Allen, 2 Dr. & W. ^13. 
 
 144, ij. [As to preferences in assignments, see 
 
 (2) Harris v. Ingledew, 3 P. Wms. 93. Notes to Thomas v. Jenks, 1 Am. Lead. 
 
 (a) Carr v. Countess of Burlington, 1 Cas. Eq: 89.] 
 
 P. Wms. 229; Boazman v. Johnston, 3 (c) PearcetJ. Slocombe, 3 Y. & C.84. 
 Sim. 381, 2. 
 
 'The general rule with regard to assignments by partner,'! is, as in other cases 
 of their insolvency, that the trustee is bound to apply the partnership effects first 
 to the joint creditors, and separate estate, to the separate creditors. Murrill v. 
 Neill, 8 How. U. S. 414. Iti Jackson v. Cornell, 1 Sandf. Ch. 348, it was held 
 that a general assignment of his separate properly made by an insolvent partner, 
 which preferred firm" creditors to the exclusion of his own, was void as to the 
 latter; and it was said that a firm assignment preferring separate creditors to firm 
 creditors, would be also invalid.' But in the subsequent case of Kirby 1;. Schoon- 
 maker, 3 Barb. Ch. 46, this decision appears to be overruled, and it was there 
 held that in a partnership assignment, preferences might be given either to sepa- 
 rate or joint creditors, at the pleasure of the partners, except where the separate 
 estate of one wasapplied to pay the separate debts of the other. In the case of 
 a lirnited partnership, it is provided by the statute, that any preference what- 
 ever, will avoid the assignment. See Mills v. Argall, 6 Paige, 577. ■ But an ex- 
 press provision in an assignmejitby an ordinary partnership, which does not in sub- 
 stance go beyond what is implied by law, will not avoid it, though there be a 
 release stipulated. Andress v. Miller, 15 Penn. St. Rep. 318. A firm assign- 
 ment, however, requiring releases, must be so executed as to pass all property, 
 joint and separate, of the firm ; and if the deed be not sealed by one, it is void, 
 though it does not appear that hehad real estate. Hennessey w. Western Bank, 
 6 W. & S. 300. A general assignment by one partner will not pafes any control 
 over the partnership effects. Moddewell v. Keever, 8 W. & S. 63. So an assign- 
 ment in general terms by the only general partner in a limited partnership, of all Ins 
 property, will not pass the firm assets. Merritt v. Wilson, 29 Mkine-, 58. 
 
DEBTS UNDER A DEED. 475 
 
 equally, the trust fund must be applied panpassw, in or towards the 
 discharge of all the debts without distinction, as well those by sim- 
 ple contract, as by specialty.(c^) But it need scarcely be observed, 
 that the rights of mortgagees, or judgment creditors, or others, who 
 take'an interest in the trust property by a title paramount to that 
 created by the deed, cannot be affected byuts provisions.^ • 
 
 A trust of this description extends only to the payment of such 
 debts, as are at the time contemplated by the deed. Therefore, 
 where A. conveyed lands to trustees in trust after his death, to pay 
 the debts mentioned in the schedule to the deed annexed, amounting 
 in all to 6,400Z., and A. contracted "debts subsequently to the execu- 
 tion of the deed, it was urged, that the land ought to be charged with 
 the subsequent debts, at any rate to an amount not exceeding the 
 sum mentioned in the schedule ; but the Lord Chancellor held, that 
 the trust extended to those debts only, which were owing at the time 
 of the execution of the deed.(e) 
 
 It has been decided, that the court in executing the trusts of a 
 deed for the payment of debts, will not after the death of the 
 grantor, marshall his assets as between the creditors; although some 
 of them may have another fund to resort to, in addition to that cre- 
 ated by the trust deed. Thus in Carr v. Countess of Burlington, (/) 
 the Earl of Burlington by deed vested lands in trustees for a term, 
 in trust to pay all the debts, which he should owe at his decease in a 
 just proportion, without preference of one debt before another. 
 After the Earl's death his bond creditors were paid a great part of 
 their debts by his executors out of his personal estate, and it was 
 thereupon objected on the part of the simple contract creditors, that 
 the bond creditors ought not to have any benefit of the trust term, 
 until they had waived their preference out of the personal estate. 
 But it was held by Lord Harcourt, that the bond creditors might 
 still come in to be paid the remainder of their debts, in proportion 
 with the simple contract creditors, — for the law gave them the fund 
 of the personal estate, and the party gave them the fund of the trust 
 term, — and the clause, that no debts should have preference, applied 
 only to their satisfaction out of the trust term.(/) 
 
 {d.) Carr v. Burlington, 1 P. Wms. (e) Pnrefoy ?;. Purefoy, 1 Vern. 28; 
 228 ; Boazman v. Johnston, 3 Sim. 377, and see Loddington v. Kime, 3 Lev. 433 ; 
 382; see Anon. 3 Ch. Ca. 54; Child ■«. [Pratt v. Adams, 7 Paige, 615; see 
 Stephens, 1 Vern. 102; Wolestoncroft Stoddard u. Allen, 1 Rawle, 250.] 
 V. Long, 1 Ch. Ca. 32; Hamilton v. (/) Carr i). Countesss of Burlington, 1 
 Houghton, i(6t««pra. ' P. Wms. 228. 
 
 ' Codwise v. Gelston, 10 John. 517 ; Hays v. Heidleberg, 9 Barr, 203. But in 
 general, a creditor who has received a benefit under an assignment, cannot af- 
 terwards irapeaoh it, but must comply with its provisions. ■ Adlum v. Yard, 1 
 Rawle, 163: Pratt v. Adams, 7 Paige, 615; 'Burrows «. Jennings, 7 Mis. 424; 
 Jewett V. Woodward, 1 Edw. Ch. 195. 
 
476 OF TRUSTEES FOR THE PAYMENT OF 
 
 This decision was questioned by Lord Hardwicke on two occa- 
 sions ;{g) but the modern case of Boazman v. Johnston,(^) before Sir 
 L. Shadwell, V. C, is to the same effect as that of Carr v. Countess 
 of Burlington, *although it does not appear to have beeh 
 L -I decided on the authority of that case. There a husband and 
 wife assigned a beneficial lease, their joint property, to trustees, to 
 sell and pay certain debts of the husband, some of which were se- 
 cured by his bonds, and others by mortgages of his estates, and at 
 the same time the husband by another deed conveyed those mort- 
 gaged estates, in trust after the death of himself and his wife, to be 
 sold for the benefit of their children. Upon the death of their pa- 
 rents the children instituted a suit to have the trusts of these deeds 
 carried into execution. By the decree the beneficial lease was or- 
 dered to be sold, but the proceeds of the sale proved to be insufficient 
 to pay off in full the bond debts and also the debts secured by the 
 mortgages ; and a question arose at the hearing on further directions, 
 whether the bond creditors had not a right to throw the mortgagees 
 upon the estates comprised in the mortgages, at any rate to the ex- 
 tent of the deficiency of the proceeds of the leasehold to pay the 
 bond debts in full; but it was held by the Yice-Chancellor, that the 
 bond creditors were not entitled to more than was given by the trust 
 deed, and consequently that they could only share the produce of the 
 leasehold, pro rata with the mortgagees. His Honor appears to 
 have rested his decision mainly on the fact of the creditors taking 
 under the deed merely as volunteers. (i) 
 
 Although the deed of trust is for the payment of such creditors, 
 as shall come in and accept its provisions within a certain time, as 
 within a twelvemonth, a creditor will not necessarily be excluded, 
 although he does not come in within the prescribed time ;' but after 
 that time is elapsed, a bill may be exhibited to compel the creditors 
 who stand out to come in, or renounce the benefit of the trust.(fc) 
 
 Where by the terms of the trust deed, no creditors are to be paid 
 under its provisions, until their claims have been investigated and 
 allowed by the trustees, a creditor can claim no benefit -under the 
 deed, and cannot apply to the court to enforce its performance, until 
 he has submitted his debt to the trustees for their investigation, or 
 
 (g-) Barwell v. Parker, 2 Ves. 364; (A) Dunch v. Kent. 1 Vem. 260; and 
 
 Lloyd ■». Williams, 2 Atk. 110. see Spottiswoode d. Stockdale, Coop. 
 
 (A) 3 Sim. 377. 102. 
 (i) Boazman v. Johnston, 3 Sim. 382. 
 
 'Tennant v. Stoney, 1 Rich. Eq. 222 ; Hosack v. Rogers, 6 Paige, 415; See De 
 Caters v. Le Roy de Chamont, 2 Paige, 490; but contra, PhcBnix Bank i). Sul- 
 livan, 9 Pick. 416; Pierpont v. Graham, 4 Wash. C. C. 232 ; Stoddard v. Allen, 
 1 Eawle, 250; Dedham Bankt). Richards, 2 Metcalf, 105. 
 
DEBTS UNDER A DEED. 477 
 
 until the trustees having been applied to, have refused to enter upon 
 that investigation.(Z) 
 
 And if the trustees are invested with an absolute discretion to re- 
 ject or allow the claims of all lawful creditors, the court cannot on 
 the application of any creditor interfere with them in the exercise of 
 that discretion. (m) However, the court will be relucta'nt to concede 
 to the trustees the exercise of so unreasonable an authority, and if 
 possible it will adopt such an interpretation of the trust as will nega- 
 tive the existence of such a power.(wy 
 
 A trust created by deed for the payment of simple contract or 
 other debts, which do not bear interest, will not of itself change their 
 nature, so as to make them carry interest in future. This, however, 
 at one time appears to have been not altogether free from doubt. 
 For in the report of the case of Carr v. Countess of Burlington,(o) 
 Lord Harcourt is represented to have declared, that by the creation 
 of the trust term for the ^payment of debts the simple con- r^^ 04.-1-1 
 tract debts became as debts due by mortgage, and conse- ^ J 
 quently should carry interest, although Mr. Cox in his note observes, 
 that no such declaration as this appears in the registrar's book. 
 Again, in Bardwell v. Parker,(p) Lord Hardwicke, although dissent- 
 ing from the doctrine laid down as above in Carr v. Countess of 
 Burlington, said, " that if a man in his life creates a trust for pay- 
 ment of debts, annexes a schedule of some debts, and creates a trust 
 term for the payment, as that is in the nature of a specialty, that 
 
 (0 Wain V. E. of Egmont, 3 M. & (0) 1 P. Wms. 229; and see Bottom- 
 K. 445. ley 0. Fairfax, 1 P. Wms. 334; Max- 
 Cm) 3 M. & K. 448. well v. Weltenhall, 2 P. Wms. 27; Loyd 
 (n) See 3 M. & K. 448 ; and Nunn v. v. Williams, 2 Atk. 111. 
 Wilsmore, 8 T. R. 521. (p) 2 Ves. 364. 
 
 ■ The preference of a ficlitious debt renders an assignment void. Irwin v. Keen 
 3 Whart. 347 ; Webb v. Daggett, 2 Barb. S. C. 10. A general provision for the pay- 
 ment of debts in an assignment, will not include debts founded on an usurious 
 consideration. Pratt v. Adams, 7 Page, 617; Beach u. Fulton Bank, 3 Wend. 
 584. Where, however, such debts are specifically provided for, it was held in 
 Green 1;. Morse, 4 Barb. S. C. 332; and Pratt v. Adams, 7 Paige, 641, that the as- 
 signee cannot refuse to pay them. But in Morse u. Crofoot, 4 Comstock, 114, it was 
 said that where, subsequently to an assignment, a bill had been sustained to avoid 
 a note specially preferred in the assignment, it would be the duty of the trustees 
 to refuse payment thereof. Though there be such specific provision for a debt, the 
 usurious excess cannot be recovered from the trustees ; Pratt v. Adams, see Green 
 V. Morse, «/ siipr; though this was doubted in the latter case. In an opinion of Chan- 
 cellor Kent, printed in 6 Humph. 532, itwas said bythat distinguished Jurist, that 
 a preference in an assignment by a corporation for notes illegally issued by it for 
 moneys borrowed, was valid. A general direction to pay debts in a will doesnot 
 apply to a debt which is nudum pactum, or not a legal debt, at the testator's death. 
 Rogers v. Rogers, 3 Wend. 503 ; Chandler v. Hill, 2 Henn. & M. 124. 
 
478 OF TRUSTEES FOR THE PAYMENT OF 
 
 will make these, though simple contract debts, carry interest.'Yo) 
 But the distinction, as to the effect of scheduling the debts, does not 
 appear to have been attended to ; and it is now settled, that a triist 
 by deed for the payment of debts, though scheduled, will not make 
 them bear interest, which they would not otherwise carry.(r) And 
 it is immaterial, that the direction is for the payment of debts with 
 interest if there are any specialty debts, to which that direction can 
 be held to apply.(s) It will of course be otherwise, where there is 
 an express direction for the payment of interest, or where it is part 
 of the contract, that the debts should be payable with interest.(t) 
 
 Debts which from their nature carry interest, must of course be 
 paid wiljh all arrears of interest up to the time of payment.' But in 
 the case of bond debts, the creditors will not be entitled to receive 
 more for principal and interest, than the amount of the penalty 
 secured. (m) 
 
 If any fund has been actually realized under the trusts of the deed 
 for the payment of debts, but instead of being applied immediately 
 in discharge of the debts, it is invested by the trustees on securities 
 bearing interest, and the interest is accumulated, the creditors, 
 though by simple contract, will be entitled to interest on their re- 
 spective debts at four per cent., as interest was actually made from 
 their fund, (a;) 
 
 It is settled, that a general devise or charge hi/ will for the pay- 
 ment of debts out of real estate, will prevent the Statute of Limita- 
 tions from running against such debts, as are not barred at the time 
 when the will comes into operation, viz., the death of the testa- 
 tor ;(!/'f although a debt, upon which the Statute of Limitations has 
 
 (5) Stewart v. Noble, Vern. & Scriv. 588 ; Stewart v. Noble, Vern. & Scriv. 
 
 528 ; and see Creuze v. Hunter, 2 Ves. 536. 
 
 ]un. 157; 4 Bro. C. C. 316; Tait v. («) Anon. 1 Salk. 154; Burke v. 
 
 Norlhwick:, 4 Ves. 618. Jones, 2 V. & B. 284; Hughes ?;. 
 
 (r) Shirley v. E. Ferrers, 1 Bro. C. G. Wynne, 1 M. & K. 20. 
 
 41; Hamilton?). Houghton, 2 Bligh, 169. {x) Pearoe v. Slocombe, 3 Y.& Coll. 
 
 (s) Hamilton v. Houghton, ,2 Bligh, 84. 
 
 187; and see Tait i). Lord North wick, (?/) Fergus v. Gore, 1 Sch. & Lef. 
 
 4 "Ves. 618. 107; Hargreaves v. Mitchell, 6 Mad, 
 
 (() See Hamilton v. Houghton. 2 3a6 ; Hughss «. Wynne, T. & R. 307; 
 
 Bligh; 184; Bath v. Bradford, 2 Ves. Cral'lan v. Oughton, 3 Beav. 1. [But 
 
 see Story, Eq. § 154, n.] 
 
 ' In Bryant v. Russell, 23 Pick. 508, it was held that in an assignraent.for the 
 benefit of scheduled creditors, holding notes and drafts, the latter were to be paid 
 with interest from the time of maturity. But in Mann's Appeal,, in Re Pieschs 
 Estate, March, 1853, the Supreme Court of Pennsylvania ruled, that where cer- 
 tain notes were preferred in an assignment, the preference extended to principal 1 
 only, and not to interest. But see Winslow r. Ancrura, 1, McCordCh, 100. As to 
 insolvent assignments, see Matter of Murray. 6 Paige, 204; PritchelU. Mur- 
 ray, Saxton, 571. 
 
 ' With regard to personal estate, the statutes of various of the States have 
 
DEBTS UNDER A DEED. 479 
 
 already taken effect at the time of the testator's death, will not be 
 revived by such a direction. (z)' 
 
 The principle of these decisions is, that the Statute of Limitations 
 does not run against a trust, and it, applies equally to a trust created 
 hy deed for the payment of debts, and whether the property subjected 
 to the trust consist of real or personal estate. Upon principle, there- 
 fore, it may unquestionably be laid down (although the point does 
 not appear to have been directly decided), that a trust, created hy 
 deed for the payment of debts generally, will prevent the operation 
 of the Statute of Limitations upon all debts, which are not barred 
 at the time of the execution of the *deed; although such a r^.q^o-| 
 trust will not revive any debt, the right to recover which ^ ^ 
 may have been previously lost by the effluxion of time.(a)^ 
 
 An assignment or conveyance in trust for the payment of debts 
 usually specifies the mode of raising the money for the purposes of 
 
 (z) Burke v. Jones, 2 V. & B. 275. (o) See Burke v. Jones, 2 V. & B. 
 
 281, 2. 
 
 fixed A certain period within which claim must be made by creditors, after which 
 the debts are barred, without reference to the principle that the executor is 
 a trustee by implication. Agnew v. Fetterman, 4 Barr, 56; Man v. Warner, 4 
 Whart. 455; Carrington v. Manning, 13 Alab. 611 ; Mills v. Bunstead, 20 Pick- 
 ering, 2. Real estate, moreover, being equally a fund for the payment of debts 
 with personalty, and the distinction between specialty and other creditors being 
 generally obsolete, the rule as to real estate stated in the te.\t is not regarded with 
 favor. Ibid;Sraithu Porter, 1 BJnn. 209; Hinesu. Spruill, 2 DeV. & Batt. Eq.93. But 
 the general principle was recognised in Lewis v. Bacon,' 3 Henn. & M. 89; Man 
 V. Warren, 4 Wharton, 477 ; Agnew D. Fetterman, 4 Barr, 56; Roosevelt t). Mark, 
 6 John. C. R. 264; Rogers v. Rogers, 3 Wend. 503. A devise in trust for the 
 payment of debts will prevent the lien of a judgment from expiring by lapse of 
 time. Baldy «. Brady, 15 Penn. St. R. Ill; Alexander v. McMurry, 8 Watts, 
 513. So in Bank U. S. v. Beverly, 1 How. U. S. 134, it was held, that where there 
 was an unexecuted trust to pay debts which had by a. previous decision of 
 the court, been decided to be unpaid in point of fact,-lapse of time was no bar. 
 But there must be a clear express trust for the payment of the debts, in such 
 case, Agnew v. Fetterman, 4 Barr, 56; Carrington v. .Manning, 13 Alab. 611. 
 Therefore, where a testator directed his debts to be paid) and devised his wife 
 all his estate, and appointed her executrix, no trust was created which took debts 
 out of the statute. Agnew t).- Fetterman. 
 
 ' PraU V, Northam, 5 Mass. 113; Agnew v, Fetterman, 4 Barr, 56; Roosevelt 
 V. Mark, 6 John. C. R. 264 ; Walker v. Campbell, 1 Hawks, 304 ; Smith v. Por- 
 ter, 1 Binn. 209; Carrington v. Manning,- 13 Alab. 611; Murray i;. Mechanics' 
 Bank, 4 Edw. Ch. 567 ; Rogers v. Rogers, 3 Wend. 503; but see Lewis i;. Bacon, 
 3 Henn. & M. 89. 
 
 ^ It has been held, however, in the United States, that an assignment for the 
 benefit of creditors (Reed v. Johnson, 1 Rhode Island, 81), or an insolvent as- 
 signment (Christy v. Flemington, 10 Barr, 128), will not prevent the running of 
 the statute as against the assignor, though the debts be expressly named therein. 
 But though the debtmay be barred at law, the creditors may nevertheless enforce 
 the trust deed in equity. Gary w. May, 16 Ohio, 66. 
 
480 OP TRUSTEES FOR THE PAYMENT OP 
 
 the trust, by directing the sale or mortgage of the property by the 
 trustees for that purpose. However, in the absence of any 'such ex- 
 press direction, if the amount of the sum to be raised, and the whole 
 scope of the deed, show that the parties must have intended a sale 
 a sale will be properly made ; for in expounding trusts, though 
 created by deed, the intention of the parties is to be pursued as 
 much as in cases of wills. (6)^ Thus on one occasion it was held, that 
 a conveyance of lands to the use of trustees and their heirs, until 
 they had raised hy sales and profits sufficient to pay the scheduled 
 debts, authorized a mortgage by the trustees.(c) 
 
 Where property is conveyed to trustees for the payment of debts 
 generally, they are enabled to make a good title to a purchaser, or 
 mortgagee, who is not bound to ascertain the necessity of the sale, 
 or to inquire as to the existence of any unpaid debts,(d) or to see to 
 the application of the purchase-money ; and in case of any misap- 
 
 (b) Sheldon I). Dormer, 2 Vern. 310; Slroughill v. Anstey, 12 Eng. Law & 
 and see Ivy v. Gilbert, 2 P. Wms. 13 ; Eq. 337.] 
 
 Mills V. Banks, 3 P. Wms. 1 ; Shrews- (d) Johnson v. Kennett, 3 M. & K. 
 
 bury I). Shrewsbury, 1 Ves. jun. 234; 631; Shaw v. Borrer, 1 Keen, 559; 
 
 see Allan v. Backhouse, 2 V. & B. 65 ; Eland v. Eland, 4 M. & Cr. 428 ; Forbes 
 
 Wilson V. Halliley, 1 R. & M. 590; 1 v. Peacock, 11 Sim. 152, 160. [See 
 
 Sugd. Pow. 116, etseq. 6lh ed. ; et vide Doe o. Hughes, 3 Eng. Law & Eq. 
 
 post, next section. 354.] Page ti. Adam, 4 Beav. 269; vide 
 
 (c) Spalding v. Shalmer, 1 Vern. 301 ; post, [p. 342, 363, 506,and note.] 
 and see Ballt). Harris, 8 Sim. 485. [See 
 
 ' A power to sell and convey is necessarily implied on a conveyance for the 
 payment of debts, Williams v. Otey, 8 Humph. 563. In a deed of trust for pa)'- 
 raent of debts, a power to sell can only be exercised under the circumstances 
 pointed out by the deed. Walker v. Brungard, 13 Sm. & M. 723. Lands were 
 conveyed in trust, first, that the debts of the grantor should be paid out of the 
 rents and profits; second, for the support of the grantor, his wife and children; 
 and third, at his death, to be divided among his children: it was held that the 
 trustee had no power to sell for the payment of debts or for any other purpose. 
 Mundyti. Vattier, 3 Grattan, 518. In Linton u. Boly, 12 Missouri, 567, it was 
 ruled that an unsealed instrument of writing conveying land in trust, to secure 
 the payment of a debt, was not sufficient of itself to authorize a sale by the 
 trustee, but created only an equitable lien, to be enforced by a court of equity. 
 Where, however, a trustee for the payment of debts sells without authority, but 
 in his capacity of trustee, and in the presence and with the acquiescence of the 
 cestui que trust, the purchaser will take a good title in equity. Spencer v. Haw- 
 kins, 4 Ired. Eq. 288. It seems that a general assignment for creditors of " goods, 
 chattels, book accounts, stock, and all other estate and effects," does not give 
 the assignee a power of sale over real estate, without express words. Baker ii. 
 Crookshank, 1 Whart. Dig., 6th ed.. Debtor and Creditor, pi. 370 ; see post, 355, 
 and 371, and notes. 
 
 In Plank v. Schermerhorn, 3 Barb. Ch. 644; it was held that a clause in an 
 assignment empowering the assignee to mortgage or lease the assigned estate, is 
 void as to creditors. 
 
DEBTS UNDER A DEED. 481 
 
 propriation of the trust fund, the creditors must seek their remedy 
 against the trustees. (e)(1)' 
 
 But the law was otherwise prior to the late act 7 & 8 Vict. c. 76, 
 where the trust was for the payment of some particular debt men- 
 tioned in the deed,(/) or of the debts specified in a sehedule.[g) 
 Although, if the nature of the trust rendered it necessary that the 
 trustees should retain the purchase-money under their management 
 for any time, after the sale was effected, or if the deed gave them 
 
 (e) Shaw v. Borrer, 1 Keen, 559; ed.; Jones i;. Price, 11 Sim. 558; Glyn 
 
 Culpepper v. Aston, 2 Ch. Ca. 115; ■«. Locke, 3 Dr. & W. 11. 
 
 Anon. Salk. 153; Dunch v. Kent, 1 (/) Doran v. Wiltshire, 3 Sw. 701 ; 
 
 Vern. 260; Jenkins v. Hiles, 6 Ves. Elliot v. Merriman, Barn. 78; and 1 
 
 654, n.; Williamson v. Curtis, 3 Bro. C. Keen, 573, stated; S. C. 2 Atk. 41. 
 
 C. 96; Doran u. Wiltshire, 3 Sw. 699, (g) Spalding v. Shalmer, 1 Vern. 
 
 701 ; 2 Sugd. V. & P. 32, at seq. 9th 301 ; Lloyd v. Baldwin, 1 Ves. 173. 
 
 (1) It was laid down on one occasion by Lord Hardwicke, that where there 
 had been a decree in a creditor's suit for the payment of debts, which were charged 
 generally on the estate, the purchaser could not safely pay over the money 
 to the trustees ; for the decree reduced it to as much certainty as a schedule of 
 the debts, Lloyd u Baldwin, 1 Ves. 173; and see Walker v. Small wood, Ambl. 
 677. However, it is stated by Sir Edward Sugden to be now the prevailing 
 opinion, that the purchaser is not in such a case bound to see to the application of 
 the money. The course is for him to apply to have the purchase-money paid 
 into court, and then the court takes upon itself the application of the money. 
 2 Sugd. V. & P. 34, 9th ed. [Wilson v. Davisson, 2 Rob. Va. 385; Coombs v. 
 Jordan, 3 Bland. 284.] 
 
 ' Williams v. Otey, 8 Humph. 568; Garrett v. Macon, 2 Brocken. 185; 6 Call. 
 388; Grant v. Hook, 13 S. & R. 259 ; Bruchi). Lantz, 2 Rawle, 392; Hannum v. 
 Spear, 1 Yeates, 553; 2 Dall. 291; Cadbury •«. Duval, 10 Barr, 267; Dalzell v. 
 Crawford, 1 Pars. Eq. 57 ; Hauser v. Shore, 5 Ired. Eq. 357 ; Gardner v. Gardner, 
 13 Pick. 393; see Lining u. Peyton, 2 Desaus. 378; Redheimer v. Pyron, 1 
 Spear's Eq. 141; Lock v. Loraas, 11 Eng. L. & Eq. 154. When, however, the 
 trust is for the payment of scheduled or specified debts, it seems the purchaser is 
 bound to see to the application of the purchase-money. Gardner v. Gardner ; 
 Cadbury v. Duval ; Dalzell v. Crawford, ut supr. ; Wormley v. Worraley, 8 Wheat. 
 422 ; though see the remarks of the American editor in notes to Elliott v. Merry- 
 man, 1 Lead. Cas. Eq. 75, as to devises for payment of debts. If there be collu- 
 sion, or the purchaser has notice that the sale is unnecessary, or out of the line 
 of the trust, he is liable in all cases. Potter v. Gardner,. 12 Wheat. 498 ; Garrett 
 V. Macon, ut supr.; see Redheimer «. Pyron, ut supr. As to the effect of the 
 knowledge of a purchaser from trustees for payment of debts under'a devise, 
 that the debts are satisfied, see post, 506,note. But failure to see to the appli- 
 cation of the purchase-money, where the power to sell has been properly exer- 
 cised, will not affect the purchaser's title at law, D'Oyley v. Loveland, 1 Strobh. 
 Eq. 46; it would only make him a constructive trustee. The English doctrine 
 on this subject is not favored in this country. See Dalzell v. Crawford, 1 Pars. 
 Eq. .57; Redheimer "u. Pyron, 1 Spear's Eq. 141; notes to Elliott v. Merryman, 
 ut supr.; and see Stroughill «. Anstey, 12 Eng. L. &Eq. 357; see also post, 363, 
 and note; and as to purchasers from executors, of personalty, ante, 166, and note. 
 
 31 
 
482 OP TRUSTEES FOR THE PAYMENT OF 
 
 the power of giving discharges for the purchase-money, the purchaser 
 would not have been bound to see to its application in payment of 
 the debts, though they were scheduled, [h) And in the case alluded 
 to. Sir Wm. Grant on general grounds expressed *his strong 
 L -I disapprobation of the doctrine, that a purchaser was bound 
 to see to the application of the money, because the debts were 
 scheduled. («') 
 
 So an express clause, giving the trustees power to give receipts, 
 and declaring that the purchaser shall not be bound to see to the ap- 
 plication of the money, would clearly exonerate him from that lia- 
 bility even with regard to scheduled debts. (A;)(l) 
 
 Whether the trust be for the payment of debts generally, or of 
 such as are scheduled, a purchaser from the trustees will not be 
 affected by the circumstance that more of the estate was sold than 
 was required for the purposes of the trust. (Z) 
 
 It was laid down on one occasion by Lord Eldon, that if the pur- 
 chase were not from the original trustees, but from others, to whom 
 they had conveyed the estate, the purchaser would be bound to see 
 to the application of the money, though the trust were for the pay- 
 ment of debts generally. («i) And this follows from the principle dis- 
 cussed in a preceding chapter, as to the effect of a unauthorized con- 
 veyance of the trust estate by a trustee. (w) 
 
 It is no objection to a deed of trust for the payment of debts, that 
 the trustees are themselves creditors, who are to benefit by the exe- 
 cution of the trust, (o) However, in such a case the trustees have no 
 power, analogous to that of executors, of preferring their own debts, 
 but they must apply the trust fund in discharge pf all the debts 
 
 Qi) Balfour ■«. Welland, 17,Ves. 151; {I) Culpepper v. Aston, 2 CL Ca. 
 
 and see Doran v. WiRshire, 3 Sw. 699. 115 ; Spalding v. Shalmer, 1 Vera. 301. 
 
 [SeeDalzellu. Crawford, 1 Pars. Eq. 57.] [See post, 480, and note.] 
 
 (i) 16 Ves. 156. (m) Braybroke i;. Inskip, 1 Ves. 417. 
 
 (4) Binks V. Lord Rokeby, 2 Mad. (n) Ante, p. 175. 
 
 227, 339 ; and see Uoper v. Halifax, 2 (o) See Balfour v. Welland, 16 Ves. 
 
 Sugd. Pow. 501, App. 3 ; Jones v. Price, 151 ; Boazman v. Johnston, 3 Sim. 377; 
 
 1 1 Sim. 557. Acton v. Woodgate, 2 M & K. 492. 
 
 (1) The recent act (7 & 8 Vict. c. 76) has made a material alteration ia the 
 law respecting the liability of purchasers paying money to trustees. The 10th 
 section of that act provides, " That the boni, fide payment to, and the receipt of, 
 any person, to whom any money shall be payable upon any express or implied 
 trust, or for any limited purpose, shall effectually discharge the person paying 
 the same from seeing to the application or being answerable for the misapplica- 
 tion thereof, unless the contrary shall be expressly declared by the instrument 
 creating the trust." However, the 13th section declares, that the act shall not 
 extend to any deed, act, or thing executed or done, or (except as to contingent re- 
 mainders) to any estate, right, or interest created before the 1st of January, 1845. 
 But see this subject further considered, post, Ch. HI. of this Division. 
 
DEBTS UNDER A DEED. .483 
 
 equally without distinction,(p) unless indeed by the terms of the 
 deed itself a priority is given to their own or any other debt.(5')' 
 
 A trust deed for the payment of debts is favorably regarded in 
 equity, and it will be supported, if possible, notwithstanding any 
 technical informality which may invalidate it at law.(r) For in- 
 stance, where a party, with power of leasing in possession, granted 
 a lease to commence in futuro, in trust for the payment of his debts, 
 the lease was supported by the court, owing to the nature of the 
 trust. (s) And so a covenant to stand seised of lands to the use of a 
 person, in consideration of his paying the debts of the covenantor 
 out of the profits of the lands, does not import such a consideration, 
 as will be sufficient at law to raise a use in the ^trustee ;(t) r-^^nAA-, 
 but, on the principle that has just been stated, this doubtless *- -■ 
 would be established in equity as a good equitable conveyance. 
 
 It may also be observed here, that a trust for the payment of debts 
 is expressly exempted from the operation of the Thellusson Act (39 
 & 40 Geo. III. c. 98), which restricts the period for which the income 
 of property may be accumulated. 
 
 If there be any residue of the trust estate after payment of the 
 debts, the surplus will remain vested in the trustees for the benefit of 
 the grantor.(M)^ 
 
 Trustees of a creditor's deed have no power to compromise suits 
 respecting the estate without an express authority, which must be 
 
 (_p) Boazman v. Johnston, 3 Sim. [But see in the United States, notes to 
 
 382; Anon. 2 Ch. Ca. 54; Child ■!). Ste- Thomas v. Jenks, 1 Am. Lead. Cases, 
 
 phens, 1 Eq. Ca. Abr. 141; S. C. 1 78, &c.] 
 
 Vern. 102 ; see 65, n. (2) [post, 359]. (s) Pollard i). Greenville, 1 Ch. Ca. 10. 
 
 (g) Garrard v. Lord Lauderdale, 3 (t) Lord Pagel's Case, 1 Leon. 194 ; 
 
 Sim. 1. 4 Cruis. Dig. Tit. 32, ch. 9, s. 25, 6. 
 
 (r) See Dunch v. Kent, 1 Vern. 260 ; (tt) 3 P. Wms. 251. n. (A.) ; Poole v. 
 
 Spottiswoode v. Stockdale, Coop. 102. Pass, 1 Beav. 600. 
 
 'Harrison v. Mock, 10 Alab. 185; Miles v. Bacon, 4 J. J. Marsh. 468. By 
 accepting the trust, a creditor trustee waives a specific lien by execution. 10 
 Alab. 185. But in Prevost v. Gratz, Peters' C. C. R. 373, it was held that the 
 rule which prohibits a trustee from acquiring an interest opposed to his cestui que 
 trust, or principal, did not apply to the case of a bona fide creditor who became 
 so prior lo the assumption of his fiduciary character ; and, therefore, that such a 
 trustee might purchase a judgment against his cestui que trust. 
 
 2 Dubose V. Dubose, 7 Alab. 23 5 ; Hall v. Denison, 1 7 Vern. 311; Rahn v. Mc- 
 Elrath, 6 Watts, 151. As to whether an express reservation of the surplus will 
 avoid an assignment, the cases in the United States are at variance. See ante, 
 note to page 336, and notes to Thomas v. Jenks, 1 Am. Lead. Cases, 2d ed. 93. 
 The surplus in the hands of the trustee, after payment of debts, may be reached 
 by non-assenting creditors, by attachment ; Hearn v. Crutcher, 4 Yerg. 461 ; Todd 
 V. Buckman, 2 Fairf. Maine, 41; Dubose v. Dubose, 7 Alab. 235; by the. trustee 
 process ; Hastings v. Baldwin, 17 Mass. 558 ; or by bill in equity, Vernon v. Mor- 
 ton, 8 Dana, 247 j Wright v. Henderson, 7 How. Miss. 539. 
 
484 OF TRUSTEES FOE THE PAYMENT OF 
 
 either contained in the deed, or conferred upon them at a meeting of 
 the creditors. And if they enter into any compromise without that 
 authority, they will be held responsible to the creditors, if it should 
 be found to have been an improper arrangement, (a;)' 
 
 And the trustees will not be justified in committing the entire 
 management of the property to an agent, although they are empow- 
 ered by the deed to employ a person to make out the accounts and 
 collect the debts.^ And it will not be a sufficient answer to a suit 
 against them by the creditors for an account, to say, that the ac- 
 counts and vouchers are in the possession of the agent, who had gone 
 abroad. («/) 
 
 2d. 0/ Trustees for the Payment of Debts under a Devise. 
 
 Upon the death of an individual the law vests his personal estate 
 in his personal representatives, as a fund for the payment of his 
 debts ; and it is not in the power of a testator to create a special 
 trust of his personal estate for that purpose, so as to withdraw it 
 from the administration of his executors. (s) This doctrine was de- 
 nied by Lord Brougham, Ch., in the case of Jones v. Scott, when it 
 came before him on appeal;(a) but his Lordship's decision in that 
 case was afterwards reversed by the House of Lords ;(J) and the doc- 
 trine, as thus finally decided, has been recognised and acted upon in 
 
 {x) Shepherd v. Towgood, 1 T. & R. (z) Jones v. Scott, 1 R. & M. 255, 261. 
 379, 390. (a) Ibid. 267. 
 
 (i/) Turner v. Corney, 5 Beav. 515. (6) Jones v. Scott, 4 CI. & Fin. 398. 
 
 ' A power given to the assignees to compound with creditors makes an assign- 
 ment void. Wakeraan v. Grover, 4 Paige, 24 ; 11 Wend. 187; Hudson v. Maze, 
 3 Scamm. 579. Otherwise, of a power to compromise with debtors. Robins v. 
 Embry, 1 Sm. & M. Ch. 207 ; see Meacham v. Sterns, 9 Paige, 398. Trustees 
 in general have no power to sell on credit, Swoyer's Appeal, 5 Barr, 379 ; Nichol- 
 son V. Leavitt, Court of Appeals, New York, 1 Am. Law Reg. 181; Estate of 
 Davis, 5 Wharton, 530; and a provision in an assignment authorizing them to do 
 so would invalidate it. Nicholsons. Leavitt; contra in Massachusetts, Hopkins 
 V. Ray, 1 Metcalf, 79. So of any other provision tending to delay creditors. 
 Notes 10 Thomas v. Jenks, 1 Am. Lead. Cas. 89. Thus a clause empowering 
 the trustees to mortgage or lease the assigned estate, Plank v. Schermerhorn, 3 
 Barb. Ch. 644 ; or to sell or encumber, Barnum v. Hempstead, 7 Paige, 568, is 
 void. 
 
 ^But the employment of agents in the management of the trust estate is not 
 objectionable, whether expressly stipulated or not; Hennessey «. Western Bank, 
 6 W. & S. 300; Pearson v. Rockhill, 4 B. Monr. 296 ; Kelly v. Lank, 7 B. IWonr. 
 220; and though such agent be the assignor of the estate. Filler u. Maitland, 5 
 W. & S. 307; Pearson v. Rockhill, 4 B. Monr. 296 ; Shattuck v. Hexman, 1 Met- 
 calf, 10; Planters' Bank v. Clarke, 7 Alab. 765; Jones v. Whitbread, 5 Engl. L& 
 Eq. 431. The assignees may, it seems, convey by attorney. Blight i). Schenck, 
 10 Barr, 285. 
 
DEBTS UNDEE A WILL. 485 
 
 subsequent cases.(c) It is therefore now conclusively established, that 
 a trust by will for the payment of the testator's debts out of his per- 
 sonal estate has no legal operation.' 
 
 A trust, therefore, for the payment of debts (so far as it forms the 
 subject of discussion in the present work) can be created by will only 
 with regard to the real estate of the testator. And a trust of this 
 description is unaffected by the statute 3 & 4 Will. IV-. c. 104, which 
 makes freehold and copyhold estates assets for the payment of simple 
 contract and other debts. For the operation of that act is expressly 
 confined to those estates, which the person dying " shall not by his 
 last will have charged with, or devised subject to the payment of his 
 debts, "(ti) 
 
 At common law the real estates of a deceased person were not liable 
 to the payment of his simple contract debts, unless made so liable 
 by his *will. This rule of law was partially altered in the r;^q4.c-i 
 case of traders by the statute of 47 Geo. III. c. 74, which L -i 
 was repealed and amended by 1 Will. IV. c. 47. And as has been 
 already seen, it is now wholly done away with by the recent act of 
 3 & 4 Will. IV. c. 104. 
 
 However, the courts from an early period endeavored to give ef- 
 fect to a general direction by a testator for the payment of all his 
 debts, by construing it into a trust for their discharge out of his real 
 estate, in case of the deficiency of the personalty for that purpose. (e)^ 
 
 (c) Freake v. Cranefeldtj 4 M. & Cr. (e) 2 Jarm. Pow. Dev. 644, et seq.; 
 499; Evans •!). Tweedy, 1 Beav. 55. [2 Jarm. Wills, Perkins' Ed., k 512, 
 
 (d) See Charlton •<;. Wright, 12 Sim. &c.;] 1 Hop. Legs. 573, et seq.; 6 
 274, [and Collins v. Robhins, ll'Jur. Cruis. Dig. Tit. 31, ch. 16, s. 7, et seq. 
 364, 1 De Gex & Sm. 139]. [See Moore's v. Whittle, 15 Eng. L. & 
 
 Eq. 434.] 
 
 ' See Carrington v. Manning, 13 Alab. 628 ; Lewis v. Bacon, 3 Henn. & M. 106 ; 
 Hines v. Spruill, 2 Dev. & Batt. Eq. 93 ; Agnew v. Fetterman, 4 Barr, 62. As 
 in most of the United States, real estate is assets for t^ie .payment of debts, many 
 of the principles stated in the text are less applicable than in England. Ibid. 
 Hoover v. Hoover, 5 Barr, 357 ; Walker, Est., 3 Rawle, 241 ; Mr. Sumner's note 
 to Kidney v. Cousmaker, 1 Ves. Jur. 436 ; and see the remarks on the act of Will. 
 
 IV. in Collins i;. Robins, 11 Jur. 364, 1 De G. & S. 139. But trusts for the pay- 
 ment of debts created by will, have been recognised in various cases (see Gard- 
 ner «. Gardner, 3 Mass. 178), and given a special effect. Thus, a sale by thle 
 trustee under such circumstances, will discharge the land in Pennsylvania from 
 the statutory lien of the testator's debts. Cadbury ■«. Duval, 10 Barr, 267. So, such 
 a trust will prevent the lien of judgments from expiring for want of revival. Baldy 
 i;. Brady, 15 Penn. St. Rep. Ill; Alexander v. MoMurrey, 8 Watts, 504; see ante, 
 nofe2topage 341. But in Bull ■«. Bull, 8 B.Monr. 332, it was held that, under the 
 act of 1839, of Kentucky, providing for the rateable paymentof debts out of the real 
 
 ^ estate, on the deficiency of the personalty, a testator could not, by a trust in his 
 will, prefer one set of creditors to another ; and see Sperry's Est, 1 Ashm. 347. 
 2 Story's Eq., J 1245, &c. But see Carrington v. Manning, 13 Alab. 628; Hines 
 
 V. Spruill, 2 Dev. & Batt. Eq. 93; Sears v. Lewis, 14 Mass. 83. 
 
486 
 
 OP TRUSTEES I"OB THE PAYMENT OF 
 
 And as the statute 3 & 4 "Will. IV. c. 104, does not alter the opera- 
 tion of a devise or charge for the payment of debts, the decisions 
 upon the effect of expressions in creating such a charge, continue 
 binding authorities at the present day.(/) It has been settled by a 
 series of cases, commencing from a very early period, and continu- 
 ing down to the present time, that a general introductory or prefa- 
 tory direction by a testator for the payment of debts, followed by a 
 - disposition of the real and personal estate, will amount to a trust for 
 
 the discharge of the debts, if necessary, out of the real estate. For 
 
 instance, if the testator direct — " that all his debts shall, first, or in 
 the first place, be paid and satisfied," or uses words to that effect ;(o) 
 or if a similar payment be directed, (without expressing, that it is to 
 be made in the first place ;{h) ) and these directions are followed by a 
 general devise of real and personal estate ; or if he make a general 
 devise of his estate ^^his debts and legacies leing first deducted ;"[i) 
 or " being first satisfied ;" {h) or " after payment of his debts," kc.;(l) 
 in all these cases it has been held, that a trust was created for the 
 payment of the debts out of the real estate in aid of the personalty. 
 And if the will be confined exclusively to the disposition of real 
 estate, it has been held that a simple direction by the testator, that 
 his debts should be paid, will operate as a charge on the realty.(m)^ 
 (/) See Lord Cottenham's observa- v. Graves, 8 Sim. 43, 55, 6 ; overruling 
 
 tions in Mirehouse v. Scaife, 2 M. & 
 Cr. 708, as corrected in Bali v. Harris, 
 4 M. & Cr. 269. 
 
 (g) Bowdler v. Smith, Prec. Ch. 264 ; 
 Tonh V. Vernon, Prec. Ch. 430; S. C. 1 
 Vern. 708 ; Beachoroft v. Beachcroft, 2 
 Vern. 690 ; Hatton v. Nicholl, Ca. Temp. 
 Talb. 110; Stranger v. Tryon, 2 Vern. 
 709, n.; Leigh ■«. Earl of Warrington, 1 
 Bro. P. C. 511; Earl of Godolphin v. 
 Penneck; 2 Ves. 271 ; Coombes v. Gib- 
 son, 1 Bro. C. C. 273; Kentish v. Kent- 
 ish, 3 Bro. C. C. 157; Knightley v. 
 Knightley, 2 Ves. jun. 328 ; Williams v. 
 Chitty, 3 Ves. jun. 545 ; Clifford v. Lewis, 
 6 Mad. 33 ; Ronalds v. Feltham, T. & 
 R. 418 ; Mirehouse v. Scaife, 2 M. & Cr. 
 695; Price ■«. North, iPhill. 85; ShawiJ. 
 Borrer, 1 Keen, 559, 573; Ballt). Harris, 
 8 Sim. 485, and 4 m'. & Cr. 266. [Point- 
 dexter t). Green, 6 Leigh, 504 ; see 
 Story's Eq., § 1245, &o.] 
 
 (A) Jones v. Williams, 1 Coll. 156; 
 Clifford V. Lewis, 6 Mad. 33, 38 ; Finch 
 V. Hattersley, 3 Russ. 345, n.; Walker v. 
 Hardwick, 1 M. & K. 396, 402 ; Graves 
 
 a dictum of Sir J. Leach, M. R., to the 
 contrary in Douce v. Torrington, 2 M. 
 & K. 606 ; [see Gardner v. Gardner, 3 
 Mason, 178; Trent D.Trent, Gilm. 174; 
 Sands v. Champlin, 1 Story R. 376.] 
 
 (j) Newman v. Johnson, 1 Vern. 45. 
 [Story's Equity, ^ 1245, &c.] 
 
 (Jc) Harris v. Ingledew, 3 P. Wms. 91. 
 [Darrington v. Borland, 3 Port. 9.] 
 
 (Z) Tompkins v. Tompkins, Prec. Ch. 
 397; Smalloross v. Finden, 3 Ves. 739; 
 Withers v. Kennedy, 2 M. & K, 607; 
 see Batson v. Lindegreen, 2 Bro. C. C. 
 94; Clark v. Sewell, 3 Atk. 100; Kidney 
 V. Coussmaker, 1 Ves. jun. 440 ; Bridg- 
 man v. Dove, 3 Atk. 201 ; King?). King, 
 3 P. Wms. 359. [Lupton v, Lupton, 2 
 J. C. R. 614; Lewis v. Bacon, 3 Henn. 
 & M. 89 ; White v. Olden, 3 Green Ch. 
 343; Fenwick v. Chapman, 9 Peters, 
 461; Peter u. Beverly, 10 Peters, 562; 
 Hudgen v. Hudgen, 6 Gratt. 320; Dunn 
 V. Keeling, 2 Dev. 285; Moores v. 
 Whittle, 15 Eng. L. & Eq. 433.] 
 
 (m) Harding v. Grady, 1 Dr. & W. 
 430. 
 
 ' Where real and personal estates are blended, the former is equally charge- 
 
DEBTS UNDEE A WILL. 487 
 
 In these cases, however, the trust for the payment of debts arises 
 only by implication, as being necessarily intended by the testator; it 
 may therefore be rebutted, provided anything can be found in other 
 parts of the will inconsistent with the intention to create such a 
 trust. (m) 
 
 Thus in Thomas v. Britnell,(o) a testator first ordered all his debts 
 *and funeral charges to be honorably paid immediately after p^q^p-, 
 his decease. In a subsequent clause he devised particular L -' 
 premises, enumerating them, and excepting H. and H., to trustees 
 in the first place to pay and discharge his debts, funeral expenses, and 
 legacies ; he then directed, that M. and R. should in the first place 
 be for payment of the legacies mentioned in his will. Sir John 
 Strange, M. R., said, that though on the first part the court might 
 take the whole real estate to be charged with debts, yet as the testa- 
 tor afterwards distributed part of his real estate for debts, and part 
 for legacies, it was too much to lay hold on the general words to say, 
 the whole should be charged with payment of debts : and he accord- 
 ingly held that the creditors were entitled to an account only of the 
 personal estate, and the other parts of the real estate except H. and R. 
 
 So in Douce v. Lady Torrington,(p) the testator began his will by 
 directing that all his just debts, &c., should be paid with all conve- 
 nient speed after his decease. By a codicil he devised a particular 
 property called " The Lotes" estate, upon trust in the first place to 
 pay an annuity and make other payments, and to apply the surplus in 
 discharge of his simple contract debts. Sir John Leach, M. R., 
 held it to be clear from the codicil, that the testator did not intend 
 a general charge of debts upon the whole real estate, and that the 
 charge was therefore limited to the particular estate devised by the 
 codicil.(^) 
 
 Again, in Palmer v. Graves,(r) the testator, after commencing his 
 will by directing his just debts, &c., in the first place to be duly paid, 
 subsequently charged a particular portion of the rents and profits 
 with a similar payment, and Lord Langdale, M. R., considered, that 
 the general charge by implication was controlled by the specific 
 charge made in the subsequent part of the will.(r) And the decision 
 of the same learned Judge in the case of Braithwaite v. Brittain,(s) 
 
 (n) Palmer v. Graves, 1 Keen, 550; Brackett, 5 Metcalf, 280; but see Trent 
 
 Price V. North, 1 Phill. 86, 7. v. Trent, Gilmer Va. Cas. 174.] 
 
 (o) Thomas f. Brilnell, 2 Ves. 313. (5) Douce v. Torrington, 2 M. & K. 
 
 [See Bank U. S. v. Beverly, 1 How. 600. 
 
 U. S. 134.] (r) Palmer v. Graves, 1 Keen, 545; 
 
 {p) 2 M. & K. 600. [See Lewis v. sed vide, 1 Phill. 87. 
 
 Bacon, 3 Henn. & M. 89 ; Adams v. {s) 1 Keen, 206. 
 
 able with the latter. Adams v. Brackett, 5 Metcalf, 280; Hassanclever v. Tucker, 
 2 Binn. 525; Ford v. Garthen, 2 Rich. Eq. 270. 
 
488 OF TRUSTEES FOR THE PAYMENT OF 
 
 is in one of its points to a similar effect. But in the later case of 
 Graves v. Graves,(f) a testator began his will by directing that all 
 his debts, &c., should be paid as soon as conveniently might be after 
 his decease. He afterwards devised a particular landed estate to 
 trustees, in trust to sell and apply the proceeds in payment of his 
 debts, &c., so far as his personal estate should be insufficient for that 
 purpose ; and there was a residuary devise of the rest of his real 
 estates upon certain trust. It was held, nevertheless, by Sir L. 
 Shadwell, V. C, upon the construction of the whole will, that the 
 charge of the debts was not confined to the particular estate devised to 
 be sold, but extended to all the testator's real estates.(<) In this 
 case the Vice-Chancellor appears to have founded his judgment prin- 
 cipally upon the anxious desire of the testator, appearing upon the 
 whole will, that all his debts should be paid : although it seems some- 
 what difficult to reconcile the principle of the decision with that of 
 Thomas v. Britnell, and the other cases of that class. 
 
 Again, in the still more recent case of Jones v. Wiliiams,(M) before 
 V. C. Knight Bruce, a testator began his will by a general direction 
 for the payment of his debts, in words which, according to the gene- 
 ral rule, amounted to a charge of the debts on the realty ; there was 
 „ a subsequent devise of a *particular estate to his wife, in trust 
 L -'to sell and apply the proceeds in further aid and discharge of 
 his debts. His Honor held that there was not a sufficient expression 
 of an intention to do away with the preliminary general charge of debts, 
 and that the whole real estate consequently remained so charged.(M) 
 
 However, it is clear, that where a general direction in a will for 
 the payment of debts is followed by a particular direction for their 
 payment out of the personal estate, the subsequent direction is not 
 inconsistent with an intention to charge the real estate also as an 
 auxiliary fund ; and therefore such a direction will not control the 
 operation of the general charge. (a;) 
 
 Upon the same principle, where the general direction for the pay- 
 ment of debts is, that they shall be paid hy the testator's executors, 
 or by his executors thereinafter named; that will not usually amount 
 to a charge of the debts upon the real estate, unless there is also a 
 devise of real estate to the persons who are appointed executors. 
 For it will be presumed, that the payment is to be made exclusively 
 out of the fund, which by law devolves upon the executors by virtue 
 of their appointment. (?/) 
 
 (0 Graves v. Graves, 8 Sim. 43. Powell v. Robins, 7 Ves. 209; Willan 
 
 (u) Jones V. Williams, 8 Jur. 373; 1 v. Lancaster, 3 Russ. 108; Warren v. 
 
 Coll. 156. Davies, 2 M. & K. 49 ; Wasse v. Hess- 
 
 (x) Price -u. North, 1 Phill. 35. lington, 3 M. & K. 499, 500; 2 Jarm. 
 
 (y) Brjgden v. Lander, 3 Russ. 343, Pow. Dev. 654. [See Ford v. Garthen, 
 
 n.; Keeling v. Brown, 5 Ves. 359; 2 Rich. Eq. 270.] 
 
DEBTS UNDER A WILL. 489 
 
 Where, however, the executors are also devisees of the real estate, a 
 general direction that all debts shall be paid by them, though de- 
 scribing them as executors, will create a charge upon the realty.(s)' 
 And it is immaterial that the real estate is first devised hy name to 
 the individuals who afterwards are appointed executors, and are di- 
 rected to pay the debts ; for that direction will be held to override the 
 whole interest which the persons, who are named executors, take 
 under the will. (a) 
 
 But this last rule of construction depends entirely upon the in- 
 tention of the testator to be gathered from the will ;{b) and it will 
 not be applied unless all of the executors take an immediate equal 
 and certain interest under the devise of the real estate. Therefore, 
 in Keeling v. Brown,(c) where the testator directed his debts, &c., 
 to he paid hy his executrix and executors thereinafter named, and 
 then amongst other devises gave to his wife an estate for life in part 
 of his real estate, and appointed her and two other persons, who took 
 no interest in the realty, executrix and executors; Lord Alvanley, M. 
 R., held that there was no charge of the debts on the real estate. (c) 
 And so in Warren v. 'Davies,{d) a testator after directing payment of 
 all his debts and legacies, &c., by his executors thereinafter named, 
 devised part of his real estate to his son in fee, to whom he also gave 
 his residuary real and personal estate, and he appointed his son and 
 another person his executors : Sir John Leach, M. R., held, that the 
 estate devised to the son, who happened to be one of the executors, 
 was not for that reason to be considered as given to the executors, 
 and charged with the payment of the debts and legacies within the 
 intention of the testator.(ci) 
 
 *And in Wasse v. Hesslington(e) there was a similar general 
 direction for the payment of debts, &c., hy the executors after L -• 
 named, and the testator then proceeded to make some specific devises 
 of his real estates, under which G. P., one of the two persons after- 
 wards named to be executors, took an estate in fee simple in part of 
 the real estates in remainder after the death of the testator's wife, 
 and charged with the payment of a gross sum to T. S. the other ex- 
 
 (z) Aubrey v. Middleton, 2 Eq. Ca. (i) Symons v. James, 2 N. C. C. 31 1. 
 
 Abr. 497 ; Finch v. Hattersley, 3 Russ. (c) Keeling v. Brown,' 5 Ves. 359. 
 
 345, note ; Henvell v. Whitaker, 3 (d) Warren v. Davies, 2 M. & K. 49. 
 
 Euss. 343; Dover ■;;. Gregory, 10 Sim. (e) Wasse v. Hesslington, 3 M. & 
 
 393. K. 495; and see Symons v. James, 2 
 
 (a) Cloudsley u. Pelham, 1 Vern. N. C. C. 301, 310. 
 411; Barker v. Duke of Devonshire, 3 
 Mer. 310. 
 
 ' But in Agnew«. Fetterraan, 4 Barr, 56, where a testator directed his debts to 
 be paid, and then devised all his estate to his wife, and appointed her e.xecutrix, 
 it was held that no trust for debts was created which would take them out of the 
 Statute of Limitations. 
 
490 OF TRUSTEES FOE THE PAYMENT OF 
 
 ecutor, and the residuary real and personal estate was given abso- 
 lutely to T. H., subject to the several annuities and legacies charged 
 thereon : upon this will the same learned Judge held it to be manifest, 
 that the testator did not intend to subject the real estate given to his 
 executors with the payment of his debts. (e) 
 
 And where the real estate or any part of it is devised to the ex- 
 ecutors, merely as trustees for other persons, a similar direction for 
 the payment of debts by the executors will not charge the devised 
 estate as against the parties beneficially entitled under the trusts. (/) 
 Although if the trust so declared, of the devised estate, be consis- 
 tent with the intentioa that the debts should be paid thereout, it 
 will be liable to the debts: as where the trust was " by sale or mort- 
 gage to pay whatsoever the testator should thereafter by will or 
 codicil direct. "(</) 
 
 Where a testator directs his real estates to be sold in such terms 
 as to convert it absolutely into personal estate, and then bequeaths 
 his personal estate after payment of his debts, "the produce of the 
 sale of the real estates will be liable to the payment of the debts. (A) 
 
 It is to be observed, that although the trust for the payment of 
 debts out of real estate has thus frequently been controlled and re- 
 butted, in accordance with the apparent intention of the testator, 
 where the trust has been implied from a mere general direction for 
 the payment of debts ; yet the same circumstances will not be allowed 
 to have that operation, where there is a devise expressly in trust to 
 pay debts, or (what in equity amounts to the same thing)(i) an ex- 
 press charge of the debts upon ,the real estate ;(1) for the terms of 
 the will itself must then be followed out, and they cannot be modified 
 or altered to suit the supposed intention. 
 
 In Ellison v. Airey a testator expressly charged his whole real estate 
 in aid of the personalty Avith the payment of debts and legacies, and 
 by a subsequent clause gave a particular farm to be sold for the 
 payment of his debts and legacies, and then by another clause de- 
 vised all his real estate to trustees to receive the two first years' profits 
 
 (e) Wasse v. Hesslington, 3 M. & K. 0i) Kidney v. Coussmaker, 1 Ves, 
 
 495; and see Symons u. James, 2 N. C. jun. 436; S. C. 7 Bro.P.C. 573; 2 Ves. 
 
 , C, 301, 310. ' jun. 267; 12 Ves. 136. [See Robards 
 
 (/) Powell V. Robins, 7 Ves. 209 ; v. Wortham, 2 Dev. Eq. 173.] 
 Wasse V. Hesslington, 3 M. & K. 496. (i) Bailey v. Ekins, 7 Ves. 323. 
 
 (g-) Barker v. Duke of Devonshire 
 3Mer. 310. 
 
 (1) Under a charge of debts upon real estate, not passing the legal interest to 
 a devisee, or otherwise breaking the descent, the heir will take as a trustee for 
 the payment of the debts. Bailey v. Ekins, 7 Ves. 323. [So, where there is a 
 refusal of a devise, Owens v. Cowan, 7 B. Monr. 152. But in Pennsylvania, 
 since the acts of 1792, and 1834, a naked direction to sell for the payment of 
 debts, breaks the descent, and vests the legal estate in the executors. Miller v. 
 Meetch, 8 Barr, 425.] 
 
DEBTS UNDER A WILL. 491 
 
 for the payment of his debts and legacies. It was insisted, that only 
 the particular farm, and the two years' profits were charged, and 
 that the generality of the first charge was controlled and restrained 
 hy the subsequent directions, but it was *heldby Lord Hard- p^ 040-1 
 wicke, that the general charge still subsisted, and that he L ^ 
 could not make any other construction. (ifc) And the decision of the 
 Master of the Rolls, in Goxe v. Bassett,(Z) is to the same effect. 
 However, in these cases the particular estate pointed out by the tes- 
 tator, must be resorted to for the payment of the debts in the first 
 place before the rest of the real estate, (m) 
 
 The doctrine of election does not apply to creditors, and although 
 a particular fund be expressly provided by the will for their payment, 
 they may notwithstanding have recourse likewise to the testator's 
 general estate to the disappointment of other parties, for whom pro- 
 vision is made by the will.(n)' 
 
 A devise for the payment of debts is favored in equity ; and a 
 general devise or charge for that purpose will be held to include 
 copyholds if required, although they may not have been surrendered 
 to the use of the testator's will:(o) though this was doubted by the 
 Lord Chancellor in an early case.(p) And equity in favor of the 
 creditors will supply the want of such a surrender. (5) And the 
 same construction will obtain, though the charge of debts upon the 
 real estate be only implied from a general preliminary direction for 
 the payment of the debts, (r) 
 
 {k) Ellison V. Airey, 2 Ves. 568. (p) ChallisD. Casborn, Free. Ch, 408; 
 
 Q) 3 Ves. jun. 155. and see Haslevvood i). Pope, 3 P. Wms. 
 
 (m) Coxe V. Basset, 3 Ves. 161. 322. 
 
 (n) Kidney v. Coussniaker, 12 Ves. (5) Drake v. Robinson, 1 P. Wms. 
 
 136, 154. 443; Kidney v. Coussmaker, 12 Ves. 
 
 (0) Drake v. Robinson, 1 P. Wms. 156; Holmes w. Coghill, id. 216. 
 
 443 ; Harris v. Ingledew, 3 P. Wms. (r) Godolphin v. Penneck, 2 Ves. 
 
 96 ; Haslewood v. Pope, Id. 323; Ithell 271 ; Coombes v. Gibson, 1 Bro. C. C. 
 
 V. Beane, 1 Ves. sen. 265; Lindropp v. 273; Kentish v. Kentish, 3 Bro. C. C. 
 
 Eborall, 3 Bro. C. C. 189 ; Kidney v. 257 ; Ronalds v. Feltham, T. & R. 
 
 Coussmaker, 12 Ves. 136, 156 ; Noel v. 418. 
 Weston, 2 V. & B. 269. 
 
 ' The actual decision in Kidney d. Coussmaker, 12 Ves. 136, was approved by 
 Gibson, C. J., in Adlura v. Yard, 1 Rawle, 163. But the principle, in the broad 
 terras as there stated, that " the doctrine of election does not apply to creditors,"' 
 was denied by him. It was accordingly held that a creditor who had accepted 
 a dividend under an assignment void in law, v^as thereby estopped from after- 
 wards impeaching it. But in the subsequent case of Hayes v. Heidleberg, 9 
 Barr, 207, it was said that Judge Gibson concurred with the majority of the 
 court, in saying that Adlum v. Yard, pushed " the doctrine of election by credi- 
 tors as far as it can be safely carried," and the court refused to apply it to the 
 case of a judgment creditor, who had accepted a dividend under an assignment 
 void (or fraud in fact. See also Cod wise v. Golslen, 10 John. 507 and the able note 
 to Aldrich v. Cooper, 2 Lead. Cas. Eq. pt. i. 230, &c., 1st edition. 
 
492 OP TKUSTEBS FOR THE PAYMENT OF 
 
 So we have already seen, that a devise to trustees for the pay- 
 ment of debts will give" them an estate in fee simple without any 
 ■words of limitation, as being necessary for the discbarge of their 
 trust, (s) Although where the devise is to the executors, they have 
 been held to take only a chattel interest for the satisfaction of the 
 debts, (f) 
 
 Where it is doubtful from the terms of the will, whether a trust 
 has been created for the payment of debts, equity, without doing 
 violence to the words, will endeavor to put such a construction on 
 them as is most favorable to the creditors, (m) 
 
 Devises for the payment of debts were expressly exempted from 
 the operation of the Statute of Fraudulent Devises (3 W. & M. c. 
 14) :{x) and the 4th section of the recent act 1 Will. IV. c. 47, by 
 which the former act was repealed, contains a similar provision. It 
 has been observed in consequence by Mr. Fonblanque, that bond 
 and other specialty creditors, whose demands in their nature affect 
 the land, are still liable to be prejudiced by the right of their debtor 
 to devise his land subject to the payment of his debts, as the simple 
 contract creditors will in that case be entitled to be paid^an passu 
 with the bond and other specialty creditors. («/) *And for 
 ■- -^ the same reason, notwithstanding the act 3 & 4 Will. IV. c. 
 104, it may still be frequently of importance to determine whether 
 a will operates as a devise or charge for the payment of debts.(2) 
 For that act, as has been already seen, does not affect lands devised 
 or charged for the payment of debts ; consequently, lands so devised 
 will, as heretofore, be administered as equitable assets, and will be 
 applicable in discharge of all debts equally without distinction. 
 Although the act expressly provides, that, in the administration of 
 assets under that act, all creditors by specialty shall be paid in 
 full, before any of the simple contract creditors shall receive any- 
 thing. 
 
 Although a trust is clearly created for the payment of debts out 
 of real estate, it may not be the duty of the trustees at once to have 
 recourse to the realty for that purpose. The personal estate is by 
 the law the primary fund for the payment of debts, and must be 
 first wholly applied by the executors for that purpose ; unless it be 
 
 (s) Dover v. Gregory, 10 Sim. 393; 4 Ves. 550; Miller'u. Horton, Coop. 45; 
 
 ante, p. 243, et seq. Bailey u. Ekins, 7 Ves. 323 ; Marshall 
 
 («) Ante, ubi supra. v. M'Avary, 3 Dr. & W. 235. 
 
 (m) Noel V. Weston, 2 V. & B. 273, 4. (i/) 1 Fonbl. Eq. Tr. B. 1, Ch. 4, s. 
 
 (a;) Earl of Bath v. Earl of Bradford, 14, n. (i). [See Cummins v. Cummins, 
 
 2 Ves. 590 ; Lingard v. Earl of Derby, 3 J. & Lat. 90.] 
 1 Bro. C. C. 312; Howse v. Chapman, {z) See Price v. North, 1 Phill. 58. 
 
DEBTS UNDER A WILL. 493 
 
 clearly the intention of the testator, not only to onerate the realty, 
 but also to exonerate the personalty irom its legal liability, (a) ^ 
 
 Thus it is settled, that a charge of debts upon the real estate 
 generally, ivhether created by a general preliminary direction for 
 their payment,(6) as by an express charge,(c) is prima facie merely 
 auxiliary to the personal estate. And a general devise of real estate, 
 in trust to make a similar payment, will not be held to have any 
 other operation •,{d) though there be a specific direction for raising 
 the debts by sale or mortgage ;(e) or a term be created for that pur- 
 pose ;(/) or though the proportions and mode in which the charge 
 is to be'distributed over and borne by the real estate, be otherwise 
 anxiously prescribed by the testator.((/) And it is immaterial, that 
 a specific part of the real estate is subjected to and set apart for the 
 payment of the debts •,{h) or that the trust is expressed in the form 
 of a condition for the payment by the devisee. («') And although 
 the particular portion of the real estate, which is expressly charged 
 with the payment of debts, be made primarily applicable for that 
 purpose, yet if it prove insufficient, the personal estate, and not the 
 
 (a) 2 Jarm. Vow. Dev. 681, et seq.; wick, 4 Ves. 816; Brydges v. Phillips, 
 
 1 Rob. Legs. 3d ed. 595, et seq. [As 6 Ves. 570 ; Hancox v. Abbey, 1 1 Ves. 
 to the effect of the act of Will. IV., on 186; Noke v. Darby, 1 Bro. P. C. 506. 
 this rule, see Collins v. Robins, 11 [See Hoes w. Van Hoesen, 1 Comstock, 
 Jur. 364; 1 DeG. &Sm. 139.] 120.] 
 
 (Jb) Hartley v. Hurle, 5 Ves. 540; (/) Duke of Ancaster v. Mayer, 1 
 Walker u. Hard wick, 1 M. & K. 396. Bro. C. C. 454; Tower v. Lord Rous, 
 
 (c) Dolman v. Smith, Free. Ch. 456 ; 18 Ves. 132. 
 
 Samwell v. Wake, 1 Bro. C. C. 144; (g) Watson v. Brickwood, 9 Ves. 
 
 Tower v. Lord Rous, 18 Ves. 132; Aid- 447 ; See Rhodes v. Rudge, 1 Sim. 79. 
 
 ridge D. Lord Wallscourt, 1 Ball & B. (A) Gray w. Miimethorpe, 3 Ves. 103; 
 
 312. [Keysey's case, 9 S. & R. 72; Coxe u. Bassett, 3 Ves. 155; M'Leland 
 
 Stevens v. Grigg, 10 G. & J. 143 ; Garnett v. Shaw, 2 Sch. & Lef. 538 ; French v. 
 
 V. Macon, 6 Call. 308; Robards v. Chichester, 2 Vern. 568; Colville v. 
 
 Wortham, 2 Dev. Eq. 173 ; Palmer v. Middleton, 3 Beav. 570. [But see 
 
 Armstrong, Id. 268 ; Hoes v. Van Hoe- Pinckney v. Pinckney. 2 Rich. Eq. 
 
 sen, 1 Comst. 123.] 218.] 
 
 (d) Brummelt). Prothero, 3Ves. 111. (i) Bridgman v. Dove, 3 Atk. 201; 
 
 (e) Haslewood i;. Pope, 3 P. Wms. Mead ?;. Hide, 2 Vern. 120; Watson t). 
 324; Lord Inchiquin i;. French, Ambl. Brickwood, 9 Ves. 447. [But see 
 33; S. C. 1 Cox, 2; Tait v. Lord North- M'Fait's Appeal, 8 Barr, 290.] 
 
 ' Lupton V. Lupton, 2 J. C. R. 614; Ruston v. Ruston, 2 Yeates, 54; 2 Dall. 
 245 ; Helsey v. Western, 2 Comstock, 500 ; Hancock v. Minot, 8 Pick. 29 ; 
 Walker's Est., 3 Rawle, 229; Martini). Fry, 17 S. &R. 453; Waring ■«. Waring, 
 
 2 Bland, 673; Wyse v. Smith, 4 G. & J. 296; Hayes v. Jackson, 6 Mass. 249; 
 Marsh v. Marsh, 10 B. Monr. 360; Foster v. Crenshaw, 3 Munf. 514 ; and cases 
 collected in Mr. Perkins' notes to 2 Jarrayn on Wills, 545, and in the notes to 
 Ancaster ■«. Mayer, 1 Lead. Cas. Eq. 450; Aldrick v. Cooper, 2 Lead. Cas. Eq. 
 pt.i,215; and Silki). Prime, Id. 252, where the subjects of this section are fully 
 discussed. 
 
494 OF TRUSTEES FOR THE PAYMENT OF 
 
 other parts of the realty, must first be resorted to for the discharge 
 of the deficiency. (A) 
 
 , So it is settled, that the personalty will not necessarily be exone- 
 rated, though the land be charged with funeral and testamentary ex- 
 penses, as well as with debts, notwithstanding the apparent impro- 
 bability, that the testator should mean to create an auxiliary fund 
 for the payment of expenses *which must be satisfied before 
 L -^ any other claims. It was said indeed by Lord Alvanley, in 
 Burton v. Knowlton,(Z) that a direction for the payment of funeral 
 expenses out of the realty afi"orded a considerable argument for the 
 exemption of the personal estate, where the trust fund is given to 
 trustees who are not the executors. But this decision appears to have 
 been questioned both by Lord Rosslyn in the case of Tait v. Lord 
 Hardwicke,(m) and by Lord Eldon in that of Bootle v. Blundell.(M) 
 And in several cases both before and since that of Burton v. Knowl- 
 ton, the personal estate has been held to be primarily liable notwith- 
 standing a charge of funeral and testamentary expenses on the realty, 
 not only where the trustees have been also executors,(o) but where 
 the executors and trustees have been difierent persons.(p) And 
 although a charge of funeral or testamentary expenses, when sup- 
 ported by additional circumstances, will materially assist the court 
 to the conclusion that the testator meant to exempt his personal 
 estate,(g') yet it must now be considered as settled that such a direc- 
 tion will not of itself be sufiicient to support that inference. (r) 
 
 And so a direction for the payment of all the testator's debts out 
 of his real estate,(s) or that they may he fully paid,(i) will not be suf- 
 ficient to exempt the personalty. 
 
 And although the personal estate may be expressly subject to cer- 
 
 (A) Colville V. Middleton, 3 Beav. C. C. 457, n.; Williams v. Bishop of 
 
 570. LandafF, 1 Cox, 254; Gaskell v. Gough, 
 
 Q) 3 Ves. 108. 3 Ves. Ill, cited ; Tower v. Lord Rous, 
 
 (m) 4 Ves. 823. 18 Ves. 159; Bootle t). Blundell, 1 Mer. 
 
 (n) 1 Mer. 229. 239; Greene v. Greene, 4 Mad. 148; 
 
 (o) Duke of Anoaster v. Mayer, 1 Mitchell ?;. Mitchell, 5 Mad. 69 ; Driver 
 
 Bro. C. C. 454 ; Dolman v. Smith, Prec. v. Ferrand, 1 R. & M. 681, 685; Blount 
 
 Ch. 456; Stephenson D. Heathcote, 1 ■«. Hipkins, 7 Sim. 43. 
 
 Ed. 37; M'Lelandt). Shaw, 12 Sch. & (r) See 2 Jarm. Pow. Dev. 688. 
 
 Lef. 538; Walker v. Hardwick, 1 M. & [Paterson v. Scott, 9 Eng. L. & Eq. 261 ; 
 
 K. 396. Ouseley v. Anstruther, 10 Beav. 413.] 
 
 (p) French v. Chichester, 2 Vern. (s) Bruramel ij. Prothero, 3 Ves. Ill; 
 
 568 ; 3 Bro. P. C. 16 ; Lovel v. Lancas- Gray v. Mianethorpe, 3 Ves. 103 ; Hart- 
 
 ter, Id. 183; Gray ■!>. Minnethorpe, 3 ley v. Hurle, 5 Ves. 540; Walker v. 
 
 Ves. 103 ; Aldridge v. Lord Wallscourt, Hardwick, 1 M. & K. 396. 
 
 1 Ball & B. 312; Stapleton v. Stapleton, (<) Hartley v. Hurle, 5 Ves. 640; Ste- 
 
 2 Ball & B. 523; Hartley v. Hurle, 5 phenson v. Heathcote, 1 Ed. 37; see 1 
 Ves. 540. Mer. 224. 
 
 (g) See Kynaston-u. Kynaston, 1 Bro. 
 
DEBTS UNDER A WILL. 495 
 
 tain particular charges, as to the payment of " legacies,"(M) or of 
 " funeral expenses and simple contract debts",(a;) yet the principle, 
 that expressio unius est exclusio alterius, will not apply in that case, 
 so as to throw on the real estate those charges, to Ayhich the per- 
 sonalty is not expressly subjected. 
 
 So, although the testator direct that the real estate shall he charge- 
 able with a particular specified debt, the personalty will notwithstand- 
 ing be liable in the first place to the payment. The mere- circum- 
 stance of the testator having provided an additional fund for the 
 payment of that debt, will not of itself exempt the personalty from 
 its liability. («/) Sir Wm. Grant, indeed, in his judgment in Hancox 
 V. Abbey,(2!) makes a distinction between the eifect of a general and 
 a particular charge in this respect, but those observations, so far as 
 regards the general principle, have been *overruled by the 
 subsequent decisions, and especially by that of Lord Gotten- ■- J 
 ham in the recent case of Bickham v. Cruttwell.(a) 
 
 Where there is an express bequest of all the testator's personal 
 estate (with or without an enumeration of particular articles), and 
 the will also contains a charge of debts upon the real estate, it is 
 doubtful, from the authorities, whether or not this will of itself ope- 
 rate as a specific bequest of the whole personal estate, so as to throw 
 the debts exclusively upon the realty. There are not wanting cases, 
 in which a gift of this nature has been decided to have that efi"ect, 
 not only where the trustees of the real fund and the executors have 
 been diiFerent persons,(6) (which is doubtless a strong circumstance in 
 favor of the exemption of the personalty),(c) but also where the 
 same persons have been trustees and executors ;{d) and there are 
 dicta both of Sir Wm. Grant(e) and Lord Eldon(/) in favor of the 
 affirmative of this position. 
 
 But on the other hand, a series of authorities are to be cited, in 
 
 (u) Brydges D.Phillips, 6 Ves. 567. 145, cited; Bamfield v. Wyndham 
 
 (a:) Walsoni;.Brickwood,9Ves.447. Preo. Ch. 101; Greene v. Greene, 4 
 
 [See Palerson u. Scott, 9 Engl. L. & Eq. Mad. 148, 156; Blount i;. Hipkins, 7 
 
 261.] Sim. 43. 
 
 (y) Noel V. Lord Henly, 7 Pri. 241 ; (c) See Stephenson v. Heathcote, 1 
 
 S. C. iDan. 211;Bickharat). Cruttwell, Ed. 38; Button ij.Knowlton, 3 Ves. 108; 
 
 3 M. & Cr. 763. [Collins v. Robins, 1 Duke of Ancaster v. Mayer, as staled 
 
 De Gex & Sm. 131 ; Paterson v. Scott, by Lord Eldon, I Mer. 223,' 4; M'Le- 
 
 9 Engl. L. & Eq. 261.] land v. Shaw, 2 Sch. & Lef. 546, 7. 
 
 (z) 1 1 Ves. 179, 186. (d) Stapleton v. ColviUe, Forrest, 202; 
 
 (a) 3 M. & Cr. 770. [See also Col- Mitchell v. Mitchell, 5 Mad. 69 ; 
 
 lins V. Robins, 1 De G. & Sm. 131 ; Quen- Walker v. Jackson, 2 Atk. 624; Driver 
 
 nell V. Turner, 4 Engl. L. & Eq. 90; v. Ferrand, 1 R. & M. 671, 685. 
 Paterson v. Scott, 9 Engl. L. &Eq. 262.] (e) In Tower v. Lord Rous, 18 Ves. 
 
 (i) Kynaston v. Kynaston, 1 Bro. C. 138, 9. [See 15 Eng. L. & Eq. 291.] 
 C. 457, n.; HoUiday v. Bowman, Id. (/) In Bootle u. Blundell, 1 Mer, 228. 
 
496 OF TRUSTEES FOR THE PAYMENT OP 
 
 which it has been held, that such a bequest will not exonerate the per- 
 sonal estate, even though the trustees and the executors were diffe- 
 rent persons •,{g) and those decisions are a fortiori authorities against 
 the exoneration of the personalty, where the trustees and executors 
 are^Ae same per sons. [h) It certainly appears to be scarcely consis- 
 tent with the usual principles of equitable construction to hold, that, 
 the mere addition of the word "all," or "the whole," or any similar 
 expression, to a gift of the personalty, should of itself give an opera- 
 tion to the bequest which it would not otherwise have : although it 
 may be admitted that such expressions, when supported by other cir- 
 cumstances, would doubtless have weight with the court as evidence 
 of the testator's intention. 
 
 However, it is clear, that the mere nomination of a person to be 
 executor (which is at law a gift to him of the whole of the personal 
 estate), followed by a charge of debts on the real estate, will not ex- 
 onerate the personalty, whatever might be the effect of a specific gift 
 of the personalty to an individual. («') And where there was a gene- 
 ral gift of all the testator's real and personal estate to trustees {who 
 were afterwards appointed executors), upon trust to raise and pay 
 debts and legacies first out of a particular part of the real estate, and 
 then if necessary out of the rest, hut no trust was declared of the 
 personal estate, the personalty was held to be primarily liable to the 
 payment of the debts. (A) 
 
 *So it is also settled, that a general residuary bequest of 
 '- -I the personal estate,(Z) or of all the personal estate not other- 
 wise disposed oi,{m) will not exempt the personalty from its primary 
 liability to the payment of debts ; for such a gift will be construed to 
 apply only to so much of the personal estate as may remain after 
 satisfying the charges thrown upon it by the law. 
 
 And though there is a preceding gift of several specific chattels, 
 to which the residuary bequest of the personalty might reasonably 
 be held to apply, yet that will not of itself vary the general rule as 
 
 (g-) Harevfood v. Child, Forr. 204, Meade t). Hide, 2 Vern. 120 ; S. C. Free, 
 
 stated ; Haslewood v. Pope, 3 P. Wms. Ch. 2. 
 
 324 ; French v. Chichester, 2 Vern. 568, (k) Rhodes v. Rudge, 1 Sim. 79 ; and 
 
 and 1 Bro. P. C. 16 ; Watson v. Brick- see Dolman v^ Weston, 1 Dick. 26. 
 
 wood, 9 Ves. 447; Brummeli;. Prothe- {I) Samwell v. Wake, 1 Bro. C. C. 
 
 ro, 3 Ves. Ill; Aldridge v. Lord Walls- 144; Walker v. Hardwick, 1 M. & K. 
 
 court, '1 Ball & B. 312; Lovell v. Lan- 397,8; see Duke of Ancasten;. Mayer, 
 
 caster, 2 Vern. 183; Cutler v. Coxeter, 1 Bro. C. C. 466; White v. White, 2 
 
 Id. 302; Bromhall v. Wilbraham, Forr. Vern. 43. 
 
 274 ; Lucy v. Bromley, Fitzgibb. 41. (m) Dolman v. Smith, Free. Ch.456; 
 
 (A) See Duke of Ancaster t;. Mayer, French v. Chichester, 2 Vern. 568; 
 
 1 Bro. C. C. 454. Hartley v. Hurle, 5 Ves. 540 : Watson v. 
 
 (i) Gray v. Minnethorpe, 3 Ves. 106 ; Brickwood, 9 Ves. 447 ; Noke «. Darby, 
 
 Stapleton v. Stapleton, 2 Ball & B. 523 ; 1 Bro. P. C. 506. 
 Lord Grey v. Lady Grey, 1 Ch. Ca. 296; 
 
DEBTS UNDER A WILL. 497 
 
 to the liability of the personal estate ;(w) although it might have that 
 effect, when assisted by the context of the will.(o) There are several 
 earlier cases, in which the personal estate has been held to have been 
 exempted on this ground,(p) but they cannot now be considered as 
 valid authorities. 
 
 However, it is undoubtedly in the power of every testator to change 
 the legal order of administration, and to render his real estate pri- 
 marily applicable to the discharge of his debts. The question to be 
 considered by the trustee before he makes the application of the 
 realty for this purpose is, whether this intention of the testator is 
 sufficiently apparent upon the face of the will. 
 
 Originally it was the rule, that the personal estate could not be 
 exempted from the payment of debts and legacies, without express 
 words.iq) And it has been a subject of regret to several great 
 judges, that this original rule was ever departed from.(?-) 
 
 However, it has been long settled that express words are not ne- 
 cessary, but that the personal estate will be exonerated, if the inten- 
 tion of the testator to that effect appear by necessary implication 
 upon the face of the will :(s) and for the purpose of collecting this 
 intention, every part of the will must be considered.(«)' 
 
 For any practical purpose, this principle of construction does little 
 more than change the terms of the question ; for, as was observed by 
 Lord Eldon, "in any particular case, no man knows how it will 
 apply."(M) Upon this point, little more can be done than to call the 
 attention of the reader to the several cases, in which the testator's 
 intention to exempt the personalty has been held sufficiently manifest. 
 In many of the earlier cases that occurred shortly after the relaxa- 
 tion of the original rule, according to which express words were 
 
 (w) Tait V. Lord Northwick, 4 Ves. Popham'U.Bamfield, 9 Ves. 453, stated ; 
 
 816 ; Brydges v. Phillips, 6 Ves. 567 ; Howell v. Price, Prec. Ch. 477 ; and see 
 
 Tower ■!). Lord Rous, 18Ves. 132; Ste- Haslewood v. Pope,'3 P. Wms. 325; 
 
 phenson v. Healhcote, 1 Ed. 38. Phipps v. Aniaesley, 2 Atk. 58. 
 
 (o) See Bootle v. Blundell, 1 Mer. (r) See Duke of Ancaster o. Mayer, 
 
 236, 7. 1 Bro. C. C. 462; Watson v. Brickwood, 
 
 (;;) Adams v. Meyriok, 1 Eq. Ca. 9 Ves. 453; Gittins v. Steele, 1 Sw. 28. 
 Abr. 27l;.2 Atk. 626,n.;Wainwrighti). (s) Bootle v. Blundell, 1 Mer. 193, 
 
 Bendlowes, 2 Vern. 718; Prec. Ch. 451 ; and cases cited ; Lamphier v. Despaid, 
 
 BickneJl v. Page, 2 Atk. 79 ■ Anderton 2 Dr.' & W. 63. 
 
 V. Cook, 1 Bro. C. C. 457, cited ; Walker {t) Ibid ; and see Gittins v. Steele, 1 
 
 V. Jackson, 2 Atk. 624 ; Havford v. Ben- Sw. 28. 
 Ions, Prec. Ch. 451 ; S. C. Ambl. 581. (u) 1 Swanst. 28. 
 
 (g) Fereges v. Robinson, Bunb. 301 ; 
 
 ' See Walker's Case, 3 Rawle, 229 ; Marsh v. Marsh, 10 B. Monr. 363 ; Ruston 
 V. Ruston, 2 Dall. 243; Roberts v. Wortbara, 2 Dev. Eq. 173 ; McFait's Appeal, 
 8 Barr, 290; Hoes ti. Van Hoesen, 1 Comstock, 122; Notes to Ancasterr. Mayer, 
 1 Lead. Cas Eq. 450 ; and see Plenty v. West, 15 Eng. L. & Eq. 291. 
 
 32 
 
498 OP TRUSTEES POK THE PAYMENT OP 
 
 requisite, the *implication was raised upon very slight and 
 '- -' equivocal expressions, such as a mere residuary disposition of 
 the personal estate. (a;) These decisions, however, have been clearly 
 overruled by the later authorities, which, without returning to the 
 original rule, have settled. that the implication must be such, as clearly 
 and necessarily arises from the several provisions of the m\l.{y) . 
 
 The circumstance that the trustees for the payment of debts out 
 of the real estate, and the executors are different persons, has always 
 been considered as favorable to the exemption of the personalty 5(2) 
 although it is very far from being conclusive evidence for that pur- 
 pose, (a) But with this single exception it seems scarcely possible to 
 extract any general rule of construction from the cases that have 
 been decided in favor of the exemption of the personal estate, and of 
 which a list will be found in the note below.(J) It will be sufficient 
 for our present purpose to remark, that the perusal of those cases, 
 with the long series of counter-decisions, renders it sufficiently appa- 
 rent, that no trustee of real estate devised for the payment of debts 
 could be advised to apply the real fund in exoneration of the person- 
 alty, where there is no express direction for that purpose in the will, 
 except under the immediate direction of tke court. 
 
 It may be observed, that where the expressions used warrant such 
 a construction, the debts maybe payable rateahlyont of the real and 
 personal estate. ((i)' 
 
 It is now settled (although at one time the practice seems to have 
 been otherwise),(e) that parol or extrinsic evidence is inadmissible for 
 
 (x) Waise 1;. Whitfield, 8 Vin. Abr. Att.-Gen. v. Barkham, Id. 206, cited; 
 
 437, pi. 19; Adams v. Meyrick, 1 Eq. Kynaston v. Kynaston, 1 Bro. C. C. 
 
 Cas. Abr. 27 1 ; Wainwright v. Bend- 457, n. ; HoUiday v. Bowman, Id. 145, 
 
 lowes, 2 Vem. 718; Bicknell v. Page, 2 cited; Williams v. Bp. of LlandafF, 1 
 
 Atk. 79; Walker v. Jackson, 2 Atk. Cox, 254: Webb 1;. Jones, 2 Cox, 245; 
 
 624; Anderton v. Cooke, 1 Bro. C. C. S. C. 2 Bro; C. C. 60- Hancox'iJ.Abbey, 
 
 457, cited; Kynaston v. Kynaston, lb. 11 Ves. 179; Burton 1;. Knowlton, 3Ves. 
 
 note; Gaskill v. Hough, 3 Ves. 110, 107; Bootleg. Blundell, 1 Mer. 193; 
 
 cited. Greene v. Greene, 4 Mad. 148; Mitch- 
 
 (y) Brummel u. Prothero, 3 Ves. 110; ell v. Mitchell, 5 Mad. 69; Driver v. 
 
 Hardey v. Hurle, 5 Ves. 540 ; Milnes v. Ferrand, 1 R. & M. 681 ; Clutterbuck v. 
 
 Slater, 8 Ves. 305; Stapleton v. Sta- Clutterbuok, 1 M. &. K. 15; Blount 1). 
 
 pleton, 2 Ball & B. 523. Hipkins, 7 Sim. 43 ; Lamphier v. Ties- 
 
 (z) Stephenson v. Heathcote, 1 Ed. pard, 2 Dr. & W. 59. [See 15Eng.L.& 
 
 38; D. of Ancaster v. Mayer, 1 Bro. C. Eq. 291.] 
 
 C. 454; Burton v. Knowlton, 3 Ves. (d) Boughton ti. James, [1 Coll. 26]; 
 
 108 ; Gray v. Minnethorpe, 3 Ves. 103; see Stocker v. Harbin, 3 Beav. 479. 
 
 Bootle V. Blundell, 1 Mer. 227 ; Brydges (e) Bamfield v. Wyndham, Free. Ch. 
 
 V. Phillips, 6 Ves. 572. [15 Eng. L. & 101; Gainsborough i). Gainsborough, 2 
 
 Eq. 291.] Vem. 252; Stapleton v. Colville, Forr. 
 
 (o) See Bootle 1;. Blundell, 1 Mer. 227. 202, see 208; Kynaston v. Kynaston, 1 
 
 lb) Stapleton v. Colville, Forr. 202 ; Bro. C. C. 457, n. 
 
 ' See Cryder's Appeal, 11 Peun. St. R. 72; Loomis' Appeal, 10 Barr, 387. 
 
DEBTS UNDER A WILL. 499 
 
 the purpose of showing the testator's intention to exonerate his per- 
 sonal estate ; and the court is at liberty to look only to the terms of 
 the will itself in deciding that question. (/) 
 
 Where a trust for the payment of debts out of the real estate is 
 clearly established, and there is no question as to the propriety of 
 the immediate application of the trust estate for that purpose, it re- 
 mains to consider the powers and duties of the trustee as to the 
 raising of the requisite funds, and the application of those funds in 
 payment of the debts. 
 
 Where the trustees are expressly authorized by the will to raise the 
 *amount of the debts by sale or mortgage, no question can 
 arise as to their power of making an effectual disposition of ^ J 
 the estate, either by way of absolute sale or mortgage, for the pur- 
 poses of the trust. And it seems that a trust to sell lands for the 
 payment of debts, will authorize a mortgage for that purpose, which 
 is a conditional sale,(^y unless indeed it be the clear intention of 
 
 (/) Inchiquin v. French, Arnbl. 40, Ball & B. 312, 15; Parker i;. Fearnley, 
 
 and 1 Cox, 9 ; Stephenson v. Heathcote, 2 S. & St. 593. 
 
 i Ed. 39, 43; Brummel v. Prothero, 3 (§■) Mills v. Banks, 3 P. Wms. 9; 
 
 Ves. 113 : Bootle v. Blundell, 1 Mer. Ball v. Harris, 8 Sim. 485; S. C. 4 M. 
 
 220; Aldridge v. Lord Wallscourt, 1 & Cr. 264, 268. 
 
 ' It has been said that a power of sale implies a power to mortgage. Lancas- 
 ter V. Dolan, 1 Rawle, 231 ; Gordon v. Preston, 1 Watts, 385; Williams v. Wood- 
 ward, 2 Wend. 492. But in Bloomer v. Waldron, 3 Hill, 368, this was denied as 
 a general proposition ; and even the more qualified statement of the text was 
 dissented from. "The mere raising of money for" the payment of, portions, 
 debts, &c., " is not enough. There must, I apprehend, as under a power to col- 
 lect a sum from issues and profits, be some pressing exigency apparent on the 
 face of the will or power." Cowen, J. Accord, Fire Ins. Co. v. Bay, 4 Comst. 69 • 
 Gumming v. Williamson, 1 Sandf. Ch. 17. In Stroughill v. Anstey, 12 Eng. L.& 
 Eq. 356; 1 De Gex, Mac. & G. 635, this subject was very fully discussed by 
 the Chancellor, Lord St. Leonards, and the distinction was taken between a devise 
 to trustees upon trusts for certain persons, subject to debts, &c., and a devise to 
 trustees, charged with debts, &c., with a direction for, or trusts which require, further, 
 an out and out conversion. In the former case it was said that a mortgage 
 might be a proper mode of raising the particular charges ; in the latter it was 
 held that it would not be. See, also, Taylor v. Galloway, 1 Hamm. 234; Floyd 
 V. Johnson, 2 Litt. 115; and Earl of Orfoid v. Earl of Albemarle, 12 Jur. 811. 
 The case of Stroughill v. Anstey, above cited, does not appear to have met with 
 entire approbation in England. A writer in a recent number of the Jurist (vol. 
 17, part ii. page 243), considers the true ground of the decision there, to have 
 been, " first, that the property was leasehold, and, therefore, the trust for con- 
 version, &c., . . . was more material than it would have been if the property 
 had been permanent. . . . And, secondly, that the transaction did not appear on 
 the face of it, or to the mortgagees, as a transaction which could possibly be neces- 
 sary or proper for a due administration of the trusts ;" and he argues, that, notwith- 
 standing Stroughill V. Anstey, in the case oi freeholds of inheritance charged with 
 debts and legacies, and subjected to an imperative trust for conversion, the trus- 
 tees would be authorized to mortgage, if the money were needed at once, and 
 a sale at the particular time would be disadvantageous and inexpedient. 
 
500 OF TRUSTEES FOR THE PAYMENT OF 
 
 the testator in directing the sale, that his real estate should he abso- 
 lutely converted ; for in that case a mortgage will not be a proper 
 execution of the trust, as the testator's intention would thus be frus- 
 trated.(A) 
 
 But although there maybe no specific direction for the sale of the 
 estate, but only a trust to raise,(i) or to pay the debts ;(A) or a devise 
 subject to or charged with debts ;(Z),(1) or the debts and legacies 
 being first deducted ;(m) — in all these cases the trustees may properly 
 raise the required amount by sale or mortgage, without waiting for a 
 decree.^ For such a disposition of the estate is necessary to the due 
 
 (fe) Haldenby v. Spofforth, 1 Beav. & Eq. 557; 6 Exch. 222; Stroughill v. 
 
 390; 1 Sugd. Pow. 538, 6th edition. Anstey, 12 Engl. L. & Eq. 356.] 
 
 (i) Wareham v. Brown, 2 Vera. 154; {I) Elliot v. Meryman, 2 Atk. 41, and 
 
 Bateman v. Bateman, 1 Atk. 421. Barn. 78, stated; 1 Keen, 573; Walkei 
 
 (4) E. of Bath v. E. of Bradford, 2 v. Smallwood, Ambl. 676 ; Bailey v. 
 
 Ves. 590 ; Ball v. Harris, 8 Sim. 485 ; 4 Ekins, 7 Ves. 323 ; Dalton v. Hewen, 6 
 
 M. & Cr. 266; Barker u D. of Devon- Mad. 9: Inchiquin«. French, Ambl. 38; 
 
 shire, 3 Mer. 310; Shaw v. Borrer, 1 1 Cox, 1. [Doe i;. Hughes, 6 Exch. 231; 
 
 Keen, 559 ; Forbes v. Peacock, 11 Sira. 3 Engl. L. & Eq. 356.] 
 
 152. [See the remarks on Forbes v. (m) Lewman d. Johnson, 1 Vera. 45. 
 Peacock, in Doe v. Hughes, 3 Engl. L. 
 
 (1) A distinction appears to have been taken at one time between the eifect 
 of a devise in trust to pay debts, and a, mere charge of the debts on the estate, 
 with regard to the powers of the trustee to sell the properly for the discharge of 
 the debts. Anon. Mosely, 96; and see Newell v. Ward, Nels. 38, and Freemoult 
 V. Dedire, 1 P. Wms. 430. This distinction, however, has been long since over- 
 turned. Elliot V. Meryman, 2 Atk. 41 ; Walker v. Smallwood, Ambl. 676; Bailey 
 V. Ekins, 7 Ves. 323 ; see 2 Sugd. V. & P. 38, 9th edit. [Mather v. Norton, 8 Engl. 
 L. & Eq. 255 ; but see Doe v. Hughes, 3 Engl. L. & Eq. 557 ] 6 Exch. 222.] 
 
 'As to when a power of sale will be implied on a trust^for the payment of 
 debts by deed, see ante, page 342. Where the purposes of the will cannot be ac- 
 complished without turning the estate into money, such power will be authorized. 
 Going V. Emory, 16 Pick. 257; Putnam Free School v. Fisher, 30 Maine, 527. 
 In Conrad v. Conrad, 6 Ohio, 1 14, a power of sale was implied on a devise of 
 all the estate subject to legacies. So in Schermerhorne v. Schermerhorne, 6 J, 
 C. R. 70, it was held that where executors were empowered to take possession 
 of land devised, subject to a charge for maintenance, on failure of the devisee, 
 &c., and to lease, or by any other means oul of the profits therefrom arising, to sup- 
 port and maintain, &c., a sale to raise the sum was authorized. In Mather v, Nor- 
 ton, 16 Jurist, 309 ; 8 Engl. L. & Eq. 255, a testator, by his will, appointed. A., B. 
 and C. to be his executors in trust to disposeof his property in the following way: 
 He directed that all his just debts and funeral expenses be discharged by his 
 executors, and the residue of his property, both real and personal, to be held for 
 the sole benefit and use of maintaining and educating his children, until his 
 youngest child arrived at the age of 21, when it was to be disposed of by his 
 executors, and divided among his children, except his estate at M., which he 
 gave to A. for life, and at A.'s death to be disposed of among his children. It 
 was held that the executors had a power of sale over the whole estate, including 
 M., and that it was not necessary to show that the debts were unpaid. The Vice- 
 
DEBTS UNDER A WILL. 501 
 
 execution of the trust. And in the case of a will, a sale, if intended, 
 will be supported, however obscurely the intention may be ex- 
 pressed. (w) 
 
 But it seems, that if the testator expressly direct that the debts 
 shall be raised by the perception of the rents and profits, this will re- 
 strain it to a payment out of the rents and profits only, and the court 
 cannot decree a sale.(o) Although in an early case this distinction 
 appears to have been disregarded, and a sale was directed, notwith- 
 standing a very similar direction.(p) And a distinction has been 
 tjiken where the trust is to raise by annual rents and profits, in 
 which case alone it has been held that a sale is not authorized. (g-) 
 
 The heir-at-law of the testator will be compelled to join in a sale 
 by a devisee in trust for the payment of debts, if the trustee cannot 
 pass the legal estate.(»-) And we have seen that in the case of a 
 devise, the heir ought to be made a party to a suit for the payment 
 of the debts, though it is otherwise where the trust is created by 
 deed.{sf 
 
 Where the real estate is devised to trustees for the payment of 
 debts, upon the insufficiency of the personal estate, it is the established 
 opinion of the profession, that a purchaser or mortgagee is not bound 
 to inquire *whether the real estate is wanted or not,(i) al- _ . _ ._ 
 though it may be otherwise where the estate is not devised to'- ^ 
 the trustees, but a mere power of sale is given to them upon the de- 
 ficiency of the personalty.(M) If, however, the real estate be devised 
 
 (n) Warnford v. Thompson, 3 Ves. (r) Fowle v. Green, 1 Ch. Ca. 262. 
 
 513; 1 Sugd. Pow. 538. [Williams v. [See the remarks on this case in 2 
 
 Otey, 8 Humph. 563.] Spence's Eq. Jur. 368, note (b), and 
 
 (o) Ridout V. E. of Plymouth, 2 Atk. see Gosling v. Carter, 1 Coll. 651.] 
 
 105; Carter D. Barnadiston, 1 P. Wms. (s) Haslewood v. Pope, 3 P. Wms. 
 
 518 ; Lingard v. E. of Derby, 1 Bro. C. 323. 
 
 C. 311. [Munday u Vawtier, 3 Gratt. (t) Langley v. E. of Oxford, Arabl. 
 
 578; but see Schermerhorne v. Scher- 797; Co. Litt. 290, b. Butl. note XIV.; 
 
 merhorne, 6 J. C. R. 73; Conkling v. 2 Sugd. V. & P. 47. [See, however, 14 
 
 Washington University, 2 Maryl. Ch. Mass. 496 ; and post, 478, note.] 
 
 Dec. 505.] («) Dike v. Ricks, Cro. Car. 335; 
 
 (p) Berry «).Askham, 2 Vern. 26. Culpepper v. Aston, 2 Ch. Ca. 221; 2 
 
 (5) Anon. 1 Vern. 104; and see this Sugd. Pow. 497, 6th edition; 2 Sugd. 
 
 subject further considered, post [Trus- V. & P. 48, 9th edition. [See Minott v. 
 
 tees for Raising Portions, p. 364.] Prescott, 14 Mass. 496.] 
 
 Chancellor (Parker) remarked: " There was a charge of debts on the whole real 
 estate, with a devise to them of the whole real estate, and the trustees had the 
 power to dispose of it for the payment of debts." A mere implied charge of debts, 
 &c., on land devised av^ay or descended, will not authorize a sale by the execu- 
 tor. Dunn V. Keeling, 2 Dev. 284; Clark v. Riddle, 11 S. & R. 312; Den v. Allen, 
 1 Pennington, 45 ; Doe v. Hughes, 6 Exch. 222 ; 3 Engl. L. & Eq. 557 ; see the 
 remarks in this case, on the dictum in Forbes v. Peacock, 12 Sim. 541. 
 
 ■ Story, Eq. PI. H 163, 172, 176, 205. But see, now, the Rules in Equity of 
 the Supreme Court of U. S. (XLIX., L.), and Pennsylvania (XLVIL, VIII.) 
 
502 OP TRUSTEES FOR THE PAYMENT OE 
 
 to an infant, subject to the payment of debts in case of the deficiency 
 of the personal estate, the court will not direct a sale of the devised 
 estate without the Master's report, stating the existence of such a 
 deficiency, although the deficiency may be admitted at the hearing 
 of the cause.(a;) The general liability of a purchaser to see to the 
 application of the money in discharge of the debts, has been already 
 considered, and for this purpose it is immaterial whether the trust be 
 created by deed or will.(t/) (1)' 
 
 Where an express power of sale is conferred on the trustees for 
 the purpose of raising the funds requisite for paying the debts, they 
 are usually authorized to sell either by public auction or private con- 
 tract. But in the absence of any such express authority, it is not 
 essential that the sale should be made by public auction (although 
 such will be the more advisable, as well as the more usual course), 
 but a bona fide disposition by private contract will be equally 
 proper.(3)^ The decisions already alluded to, which establish the 
 validity of a mortgage in lieu of an absolute sale, are impliedly au- 
 thorities for this position. However, trustees who sell by private 
 contract, will not be justified in insisting on any special or unusual 
 conditions, which would be calculated to reduce the selling value of 
 the estate, (a) 
 
 A will ordinarily speaks from the death of the testator ; therefore, 
 all the creditors of the testator at the time of his decease, will be 
 entitled under a general devise in trust for payment of debts.(J) 
 Although, if the testator have shown a clear intention to confine the 
 trust to his creditors at the time of making the will, that intention 
 will prevail, and no subsequent creditors will be sufi'ered to take any 
 benefit under the trust. For instance, where a testator devised his 
 lands after debts paid, adding, " my debts are only those contained 
 
 (a:) Birch v. Glover, 4 Mad. 376. (a) Wilkins v. Fry, 1 Mer. 244, 268. 
 
 (y) Ante, PI. I. of this Section ; see (b) Brudenell v. Boughton, 2 Atk. 
 
 Shaw V. Borrer, 1 Keen, 559; and post, 274; Sheddon v. Goodrich, 8 Ves. 481; 
 
 Chap. III. of this Division, p. 363. Bridgman v. Dove, 2 Atk. 201. 
 
 (z) Vide post [Powers of Sale], 480. 
 
 (1) It may be remarked, that after a bill filed by creditors for the administra- 
 tion of a testator's estate, a devisee in trust for the payment of debts cannot sell, 
 except under the direction of the court. Walker v. Sraallwood, Ambl. 676 ; vide 
 post, p. 548 [Effect of Snits by or against Trustees.] 
 
 ' See ante, page 342, note; and post, 363, note. As to the liability of pur- 
 chasers from executors of personalty, see ante, 166, note; and 11 Jur. pt. ii. 110, 
 124. 
 
 ^ See post, 480, and notes. In the case of a devise for the payment of debts, 
 the trustee may, by his acknowledgment, extend the period of limitation of a 
 debt, Lord St. John «. Boughton, 9 Sim. 219; Toft u Stephenson, 9 Engl. L. & 
 Eq. 86 ; and this applies as well to a substituted trustee, as to those named in the 
 will. Toft V. Stephenson, ut supra. 
 
DEBTS UNDER A WILL. 503 
 
 in the schedule," and he afterwards contracted /resA debts; the lands 
 were held to be liable only to the debts mentioned in the win.(e) 
 
 It has been already stated, that a devise or charge by will for the 
 payment of debts out of real estate, will prevent the Statute of Limi- 
 tations from running against such debts as are not barred by ef- 
 fluxion of time at the death of the testator.(d) It appears to have 
 been once considered that a debt which had been actually barred by 
 the statute, would be revived by a general devise or charge for pay- 
 ment of debts.(e) But this *doctrine has been long since _ 
 exploded; and it is now settled that such a trust will only'- -■ 
 have the limited operation already stated. (/) It has been seen, that 
 a trust by will for the payment of debts out of personal estate, has 
 no legal operation. Such a trust, therefore, cannot prevent the ope- 
 ration of the statute on any debt.(^) 
 
 If an infant borrow money, and apply it in the purchase of neces- 
 saries, and die after attaining his full age, having devised his real 
 estate in trust for the payment of his debts, this is a debt which 
 will be recognised, in equity, so as to come within the operation of 
 the trust. (A) 
 
 But where an estate is devised or descends to a testator, charged 
 with an existing mortgage or other incumbrance, and by his will he 
 charges his estate with the payment of his debts generally, the charge 
 or incumbrance on the devised or descended estate is not the testator's 
 debt in the contemplation of law, unless it has been expressly and per- 
 sonally adopted by him ; and therefore it will not come within the 
 operation of the trust. («') The same rule also applies to a certain ex- 
 tent, where the testator has purchased an estate, subject to a mort- 
 gage or other incumbrance ;(A;) unless indeed an express personal 
 contract was entered into by the testator, by which he rendered him- 
 
 (c) Loddington v. Kime, 3 Lev. 433. (Ji) Marlow v. Pitfield, 1 P. Wm^. 
 
 (d) Ante, PI. I. of this Section [341, 559. 
 
 and notes] ; Fergus v. Gore, ] Sch. & (i) Lawson v. Lawson, 3 Bro. P. C. 
 
 Let'. 107; Hargreaves v. Mitchell, 6 424; Lawson v. Hudson, 1 Bro. C. C. 
 
 Mad. 326 ; Hughes v. Wynne, T. & R. 58 ; Hamilton v. Woley, 2 Ves. Jun. 62 ; 
 
 307; Crallan v. Oughton, 3 Beav. 1. Earl of Tankerville v. Fawcett, 2 Bro. 
 
 (?) Anon. 1 Salk. 154; Andrews?). C. C. 57. [See notes to Ancaster u. May- 
 Brown, Prec. Ch. 385; Gofton v. Mill, er, 1 Lead. Gas. Eq. 453, and cases 
 2 Vern. 141 ; Vaughanw.Guy, Mose. 245. cited; contra in New York, Rev. St. 749.] 
 
 (/) Burke v. Jones, 2 V. & B. 275 ; (i) Woods v. Hunlingford, 3 Ves. 128 ; 
 
 Piggott V. Jefferson, 12 Sim. 26 [p 341, Cornish v. Shaw, 1 Ch. Ca. 271 ; Pock- 
 
 andnote; see 366, note 2.] ley v. Pockley, 1 Vern. 36; Duke of 
 
 (g) Jones V. Scott, 4 CI. & Fin. 398; Ancaster v. Mayer, 1 Bro. C. C. 454; [1 
 
 Freake v. Cranefeldt, 3 M. & Cr. 499 ; Lead. Cas. Eq. 455, and American 
 
 Evahs V. Tweedie, 1 Beav. 55 [ante, notes; and see Mansell's Est., 1 Pars, 
 
 p. 344, note]. Eq. 367.] 
 
504 OP TRUSTEES FOR THE PAYMENT OF 
 
 self personally liable for the debt.(Z) Again, the trust for payment 
 of debts will extend only to such debts as are actually due and pay- 
 able at the time of the testator's death. For instance, •where a tes- 
 tator had covenanted to pay a sum six months after his death, it was 
 held by Sir J. Leach, that as no debt was actually incurred until the 
 breach of the covenant, it did not actually come within a general 
 trust for the payment of debts.(»w) 
 
 And it seems, that debts not arising by contract, but by a misfea- 
 sance — as for an escape or breach of trustj_or such as are contracted 
 mala fide — do not come within a general provision for the payment 
 of debts. (w) 
 
 A general charge of debts is the primary charge on the estate, in 
 preference to other voluntary charges, unless there is something to 
 indicate a contrary intention. (o) 
 
 With regard to the order of payment of debts under a trust cre- 
 ated by will — it was never disputed, but that under a devise of lands 
 to trustees for the payment of debts, the fund so raised was equita- 
 ble assets,^ consequently it is applicable in discharge of all the debts 
 equally without priority, as well those by simple contract, as those 
 by bond, or other specialty.(|)) On this point, however, a distinc- 
 tion appears once to have obtained, between the effect of a devise, 
 and a mere charge not breaking the descent ; in which last case it 
 was held, that the estate was applicable as legal assets in the hands 
 of the heir, and that the specialty ^creditors were therefore 
 L -■ entitled to a preference. (g') But this doctrine has been long 
 since overruled, and it is now clearly settled that there is no diffe- 
 rence between the operation of a devise and a charge ; and in either 
 case the fund so created will be equitable assets.(r) It has been al- 
 ready stated, that the recent statute (3 & 4 Will. IV. c. 104) does not 
 affect the law on this subject. (s) 
 
 The earlier cases likewise established another distinction. For if 
 the devisee in trust for the payment of debts were also made exe- 
 
 (l) Earl of Oxford v. Rodney, 14 Ves. ( g) Freemoult v. Dedire, 1 P. Wms. 
 
 417 ; 2 Jarm. Pow. Dev. 675, 6. 430 ; see Plunket v. Peuson, 2 Atk.293. 
 
 (m) Wathea v. Smith, 4 Mad. 325. (r) Hargrave v. Tindal, 1 Bro. C. C. 
 
 [ Contra, MoFait's Appeal, 8 Barr, 290.] 136, n.; Batson v. Lindegreen, 2 Bro. C. 
 
 (n) Lord Hollis t). LadyCarr, 1 Vem. C. 94 ; Bailey v. Ekins, 7 Ves. 322; 
 
 43 1 . Shepherd v. Lutwidge, 8 Ves. 26 ; Inohi- 
 
 (o) Harding «. Gray, 1 Dr. & W. 430. quin v. French, 1 Cox, 1; Prices. 
 
 Ip) Woolestoncroft v. Long, 1 Ch. Ca. North, 1 Phill. 85. 
 
 32; Haslewood v. Pope, 3 P. Wms. (s) Supra, 344, and see Charlton v. 
 
 323. Wright, 12'Sim. 274. 
 
 ' As to doctrine of Equitable Assets in the United States, see the able notes to 
 Silk V. Prime, 2 Lead. Cases Eq. p. i, 252 ; Sperry's Estate, 1 Ashm. 347 ; Benson 
 V. Le Roy, 4 J. C. R. 651 ; and other cases there cited. 
 
DEBTS UNDER A WILL. 505 
 
 eutor, it was considered that the lands so devised then became legal 
 assets in the hands of the executor, and that the debts were there- 
 fore to be paid according to their legal priori ties. («) However, this 
 distinction also was very soon exploded as untenable, and has been 
 expressly overruled by several of the more modern cases.(M) 
 
 In order to give full effect to this equitable doctrine the assets will 
 be marshalled, if necessary, as between the different classes of credi- 
 tors, in favor of those by simple contract.* And if the specialty 
 creditors, availing themselves of their legal rights, have obtained 
 partial satisfaction of their debts out of the personal estate, to the 
 exclusion of the simple contract creditors, the former class of credi- 
 tors will not be suffered to come upon the equitable fund, and receive 
 further payment out of the real estate, until the simple contract 
 creditors have been paid a similar proportion of their debts out of 
 that fund, (a;) 
 
 With regard to the order, in which the real estate is applicable in 
 discharge of the debts — where any specific portion of the estate is 
 expressly subjected to the payment of debts by the will, that part 
 must first bear the burden, thrown upon it by the testator. («/) And 
 where the debts are charged generally on the real estate, and a cer- 
 tain part of the estate is then specifically devised by the will, while 
 the residue is unnoticed, and is suffered to descend to the heir, the 
 debts must be raised first out of that portion, which is so suffered to 
 descend,(a) whether it was acquired before or after the date of the 
 will, (a) For the specific gift showed it to be the intention of the 
 testator, that the devised estate should go undiminished to the de- 
 visee. Where lands are devised subject to debts, the whole of the 
 devised estates will be liable to contribute equally towards their pay- 
 ment ; and it is immaterial, whether the devise be specific, or con- 
 
 (0 Walker v. Meager, 2 P. Wms. (j) Powis v. Corbet, 3 Atk. 556 ; 3 Ves 
 
 550; Girling -u. Lee, 1 Vern. 63; Haw- 116, n.; Tweedale v. Coventry, 1 Bro 
 
 ker V. Buckland, 2 "Vern. 106; Greaves C. C. 260; Donne v. Lewis, 2 Bro. C 
 
 i;. Powell, Id. 248 ; Clulterback ij. Smith, C. 257; Coxe v. Basset, 3 Ves. 155: 
 
 Prec. Ch. 127; Bickham v. Freeman, ColviUe v. Middleton, 3 Beav. 570 
 
 Id. 136; Hixton v. Witham, 1 Ch. Ca. Milnes v. Slater, 8 Ves. 295. 
 
 248. (2) Davies v. Topp, 2 Bro. C. C. 259, 
 
 (u) Lewin v. Oakley, 2 Atk. 50 ; Silk n.; Wride v. Clark. Id. 261, n.; Manning 
 
 V. Prime, 1 Bro. C. C. 138, n.; Newton v. Spooner, 3 Ves. 117; Barnwell v. 
 
 V. Bennet, Id. 134. ' Cawdor, 3 Mad. 457. 
 
 (x) Haslewood v. Pope, 3 P. Wms. (a) Milnes v. Slater, 8 Ves. 295. 
 323. 
 
 ' On the subject of the Marshalling of Assets, and of Contribution, see notes 
 to Duke of Ancaster v. Mayer, 1 Lead. Cas. Eq. 455 ; to Aldrich v. Cooper, 2 
 Lead. Cases Eq. p. i. 193; and to Silk v. Prime, Id. 252, where the authorities 
 are collected. 
 
506 OE TRUSTEES FOR THE PAYMENT OP DEBTS. 
 
 tained in a general and residuary clause ; for every devise of land is 
 in its nature specific. (6) 
 
 P^n-p-. *A devisee in trust to pay debts, though himself a creditor 
 '- -I of the testator, cannot give any preference to his own claim 
 but must come in pari passu with the other creditors. (c)^ 
 
 A trust by will for the payment of debts will not make simple 
 contract debts bear interest.(c?) Indeed it has been already seen 
 that a similar trust, though by deed, will not have that effect.(e) 
 Although at one time a contrary doctrine seems to have prevailed.(/) 
 And though the direction be for the payment of the debts generally 
 and all interest thereof, yet if there are debts bearing interest, to 
 which that direction may be held to apply, it will be held to be con- 
 fined to them.(5f) The effect of such a direction, however, might be 
 doubtful, if there were no debts, to which the direction as to interest 
 could properly apply. 
 
 Where real estate is devised to trustees in trust to pay debts, any 
 surplus of the estate, which may not be required for the purposes of 
 the trust, will belong to the heir-at-law, if not otherwise specifically 
 disposed of. (A) And an express direction for the sale of the lands 
 for the payment of the debts will not operate as a conversion, so as 
 to entitle the residuary legatee or next of kin to the exclusion of the 
 heir.(i) 
 
 In this respect, however, an important distinction has been esta- 
 blished between a devise in trust to pay debts, and a devise charged 
 with debts. In the former case the devise is for a particular pur- 
 pose, and nothing more, and as we have seen, a resulting trust arises 
 
 (i) Manning v. Spooner, 3 Ves. 1 17 ; see Hamilton v. Houghton, 2 Bligh, 
 
 Harmood ri. Oglander, 8 Ves. 125; Mil- 169. 
 
 nasi). Slater, 8 Ves. 303; see Spong v. (/) Carr v. Burlington, 1 P. Wms. 
 
 Spong, 1 Y. & J. 300. 228. 
 
 (c) Child V. Stephens, 1 Eq. Ca. Abr. (g-) Tait v. Lord Northwiok, 4 Ves. 
 
 141; S. C. 1 Vern. 102; Anon. 2 Ch. 816; and see Hamilton v. Houghton, 2 
 
 Ca. 54. Bligh, 187. 
 
 {d) Lloyd V. Williams, 2 Atk. 110; {h) Culpepper v. Aston, 3 Ch. Ca. 
 
 Barwell v. Parker, 2 Ves. 343 ; Earl of 115; Maugham v.' Mason, 1 V. & B. 
 
 BathtJ. Earl of Bradford, Id. 587; Shir- 410; King v. Denison, Id. 272; Halli- 
 
 ley V. Earl Ferrers, 1 Bro. C. C. 41; dayi).Hudson,3 Ves.210. [Ante,p.n9.] 
 
 Stewart •«. Noble, Vern. & Soriv. 528; (i) Culpepper v. Aston, 2 Ch. Ca. 
 
 Tait V. Lord Northwick, 4 Ves. 816. 115; Maugham v. Mason, 1 V. & B. 
 
 (e) Ante, PI. I. of this section; and 410. 
 
 ' See ante, note 1 to page 343. But in Hosack v. Rogers, 6 Paige, 415, it was 
 held that where a trustee for payment of debts was also executor, he was enti- 
 tled, before the Revised Statutes, to retain for his own debt ; and so in Hall «. 
 Macdonald, 14 Sim. 1, the Vice Chancellor ruled in a similar case, that the 
 trustee was entitled to retain out of the proceeds, and that his right was not 
 prejudiced by the proceeds having been paid into court. 
 
OF TRUSTEES FOE THE PAYMENT OF LEGACIES. 507 
 
 for the heir upon the satisfaction of that purpose. But the latter 
 devise is held to pass the beneficial interest to the donee, subject to 
 the particular purpose ; and upon the satisfaction of that purpose 
 the devisee will hold for his own benefit.(^) This subject, however, 
 has been already fully discussed in a previous part of this treatise.(Z) 
 
 III. — OF TKUSTEES FOR THE PAYMENT OF LEGACIES. 
 
 Where a testator has subjected his real estate to the payment of 
 the legacies given by his will, the devisee or heir becomes a trustee 
 for the payment of those charges. (1) And if the trust be created by 
 express words, no question as to the liability of the real estate can 
 arise. But where the trust depends upon an implication, arising 
 from introductory or other general expressions, it is still to a certain 
 extent an unsettled question, whether the same expressions, which 
 we have seen to be sufficient *to charge the real estate with 
 debts, will also be adequate to charge it with legacies. The L J 
 distinction between debts and legacies appears to have been first 
 taken by Lord Macclesfield in the case of Davis v. Gardiner.(m) In 
 that case a testator commenced his will thus, " as to all my worldly 
 estate, I dispose of the same as follows, after my debts and legacies 
 paid," and having given several legacies, he gave the residue of his 
 personal estate to his son after all his legacies paid, and then devised 
 his real estate : and his Lordship held that the legacies were not 
 charged on the real estate, although it seems, that debts would have 
 been so charged, if the personalty had proved deficient.(w) So, in 
 Kightley v. Kightley,(o) Lord Alvanley, M. R., considered that lega- 
 cies were not charged on the real estate by a will, in which the tes- 
 tator commenced by directing all his legal debts, legacies, and funeral 
 expenses to be fully paid ; and after giving several legacies con- 
 cluded with a general residuary gift of real and personal estate ; 
 although his Lordship had no doubt as to the debts being so charged. 
 And the same learned judge on a subsequent occasion(^) stated, that 
 he still adhered to the opinion expressed in Kightley v. Kightley, 
 notwithstanding the doubt as to its correctness, which had been 
 thrown out by Lord Rosslyn in the case of "Williams v. Chitty.(^) 
 
 {k) King'W. Dennison, 1 V.&B. 272. (o) 2 Ves.jun. 328. ' 
 
 (0 Ante, p. 118, at seq. (p) Kneeling v. Brown, 5 Yes. 362. 
 
 (m) 2 P. Wms. 187. (j) 3 Ves. 551. 
 
 (n) See 2 P. Wms. 190. 
 
 (t) It is to be observed, that the payment of legacies out of pmonal estate is 
 a duty cast by the law upon the executor, as we have already *sien to be the 
 case with regard to debts. Therefore a trust for the payrtient of legacies as of 
 debts, within the scope of the present work, can only exist, where the payment 
 is to be made out of real estate. See PI. II. (2) of this Section. 
 
508 OF TRUSTEES FOR THE PAYMENT OP LEGACIES. 
 
 The grounds of Lord Alvanley's opinion were, that the payment of 
 debts is a duty morally obligatory on a testator, and that the court 
 will consequently strive to give the fullest effect to any expressed 
 intention of discharging that obligation ; while the same principle 
 does not apply to legacies, which are purely voluntary.(r) How- 
 ever, the soundness of this distinction was expressly denied by Lord 
 Rosslyn in the case of Williams v. Chitty ;(s) and in Trot v. Ver- 
 non,{t) and in several other cases, (m) no such distinction was observed. 
 Moreover, the tendency of the observations of Lord Cottenham, C, 
 in the recent case of Mirehouse v. Scaife,(a:) appears to be strongly 
 against its validity.^ 
 
 But be this as it may, it is clearly settled that where a testator 
 gives several legacies, and then without creating any express trust 
 for their payment makes a general residuary disposition of the whole 
 estate. Mending the realty and personalty together in one fund, the 
 real estate will be charged with the legacies ; for in such a case the 
 " residue" can only mean, what remains after satisfying the pre- 
 vious gifts, (y)^ 
 
 In some cases the use of the term " devise" in the gift of the 
 legacies has been relied upon as evidence of the testator's intention, 
 that they should be a charge on the real estate. (2) And some stress 
 has also been laid upon the fact of the heir-at-law being appointed 
 
 (r) See Kightley v. Kightley, 2 Ves. (_y) Ambrey v. Middleton, 2 Eq. C. 
 
 jun. 331. Abr. 479; Hassel -u. Hassel, 2 Dick. 
 
 (s) 3 Ves. 551^ 526; Brudenell v. Boughton, 2 Atk. 
 
 (0 Preo. Ch. 430; S. C. 1 Vern. 708. 268; Bench v. Belis, 4 Mad. 187; Cole 
 
 (u) Tompkins v. Tompkins, Prec. v. Turner, 4 Russ. 376; Mirehouse ti. 
 Ch. 397; Elliot v. Hancock, 2 Vern. Scaife, 2 M. & Cr. 695, 707, 8; see 
 143 ; Lypet v. Carter, 1 Ves. 499; EUi- Edgell v. Haywood, 3 Atk. 358; Kid- 
 son V. Airey, 2 Ves. 568. ney v. Coussmaker, 1 Ves. jun. 436. 
 
 {x) 2M. &Cr. 708. [See Patersoii (z) Trott v. Vernon, 1 Vern. 708; 
 
 V. Scott, 9 Eng. L. & Eq. 264.] Hassel v. Hassel, 2 Dick. 526. 
 
 ■ Whether legacies are charged on lands, depends on the intention of the tes- 
 tator, to be gathered from the will. Lupton v. Lupton, 2 J. C. R. 618 ; Paxtoti v. 
 Potts, 2 Green's Ch. 313 ;;Harris v. Fly, 7 Paige, 421 ; Logan v. Deshay, 1 Clark, 
 209 ; Gridley v. Andrews, 8 Conn. 1 ; Brandt's Appeal, 8 Watts. 198 ; Montgomery 
 V. McElroy, 3 W. & S. 378; Wright's Appeal, 14Penn. St. R. 258 ; Simmons «. 
 Drury, 2 G. & J. 32 ; Stevens v. Gregg, 10 G. & J. 143 ; Hoes v. Van Hoesen, 
 1 Comst. 122 ; see the notes to Djike of Ancaster v. Mayer, 1 Lead. Cas. Eq. 452 ; 
 Ripple V. Ripple, 1 Rawle, 386. 
 
 ^ Nichols V. Postlethwaite, 2 Dall. 131 ; Hasenclever v. Tucker, 2 Binn. 525; 
 Whitman v. Norton, 6 Binn. 395 ; MoLanahan v. Wyant, 1 Penn. R. Ill ; Adams 
 V. Brackett, 5 JMeto. 280 ; Van Winkle v. Van Houten, 2 Green Ch. 172 ; Down- 
 man V. Rust,© Rand. 587; but see contra, Lupton v. Lupton, 2 J. C. B. 618; 
 Stevens v. Gregg, 10 G. & J. 143 ; Gridley v. Andrews, 8 Conn. 1. In Paxson i). 
 Potts' Admin'rs, 2 Green. Ch. 320, it was said that this rule only applied where 
 there was no previous speoifio devise of the real estate. 
 
OP TRUSTEES FOR THE PAYMENT OF LEGACIES. 509 
 
 residuary . legatee and *devisee and executor, (a) and the p^-Q^-,-, 
 legacy being a provision for a child of the testator has also '- J 
 been taken into consideration. (J) 
 
 Indeed, the question whether the legacies are or are not charged 
 on the real estate, is always one of- intention, to be gathered from 
 the whole will.(c) But the intention of the testator must be collected 
 solely from the will itself; and although extrinsic evidence appears 
 to have been formerly admitted for this purpose,((i) that practice is 
 now altered.(e) 
 
 Where a testator has charged his real estate generally with lega- 
 cies, it has been held that legacies given by an unattested codicil, 
 will be included in the charge ;(/) and the legacies so charged may 
 also be altered or revoked by an unattested codicil.(^) However, 
 this doctrine, though clearly established to this extent, has not been 
 regarded with favor by the courts, which have evinced a disposition 
 not to extend it any farther ;(A) and in endeavoring to escape from its 
 application, they appear- to have drawn some very nice and refined 
 distinctions. 
 
 Thus it is settled that a testator cannot by his will reserve a 
 power to charge his real estates with legacies by an unattested co- 
 dicil, although, if the charge be well created by the will itself, the 
 gift of the legacies by such a codicil will be supported.(«) And where 
 the charge is not general, but only of some particular legacies, as of 
 such legacies as are '■'■hereby" or ^' hereinafter" given or "above 
 mentioned;" those given by an unattested codicil will not be in- 
 cluded.(A) And if the land form the primary fund for the payment 
 of the legacies, they cannot be altered or revoked, except by a tes- 
 
 (o) Awbrey v. Middleton, 2 Eq. Ca. (/) Hide v. Hide, 1 Eq. Cas. Abr. 
 
 Abr. 497 ; Alcock ■!). Sparhawk, 2 Vera. 409; Masters v. Masters, 1 P. Wms. 
 
 228. [See Downman v. Rees, 6 Rand. 421; Harris v. Packer, Ambl. 556; Ha- 
 
 587; Van Winkle v. Van Houten, 2 bergham v. Vincent, 4 Bro. C. C. 353; 
 
 Green, Ch. 191; but see Paxson v. S. C. 2 Ves. jmi. 204: Swift i;. Nash, 2 
 
 Potts'Adm. Id. 322.] Keen, 20. 
 
 (6) Lypetti.Carter, IVes. 499. [See (g-) Brudenell v. Boughton, 2 Atk. 
 
 Van Winkle v. Van Houten, 2 Green, 168 ; Att.-Gen. v. Ward, 3 Ves. 227 ; but 
 
 ^^- ^"2-] see Mortimer v. West, 2 Sim. 274. 
 
 (c) Jones V. Selby, Prec. Ch. 288; (A) See Wilkinson v. Adam, 1 V. & 
 
 Miles V. Leigh, 1 Atk. 574; see Webb B. 446; Hooper v. Goodwin, 13 Ves. 
 
 V. Webb, Barn. 86; Austen v. Halsey, 167 ; Whytall v. Kay, 2 M. & K. 769 ; 
 
 6 Ves. 475 ; Minor v. Wicksteed, 8 Bro. [ante, 64, and note.] 
 
 C. C. 627; Trent r. Trent, 1 Dow. 102; (i) Rose v. Cunningharae, 12 Ves. 
 
 [ante, 360, note 1.] 29 ; Whytall v. Kay, 2 M. & K. 765. 
 
 {d) Pawlet V. Parry, Prec. Ch. 450, (fc) Masters v. Masters, 1 P. Wms. 
 
 1; Mmori;. Wicksteed, 3 Bro. C. C. 627. 421; Bonner v. Bonner, 13 Ves. 379; 
 
 (e) See 1 Rop. Legs. 579, 3d edition. Hooper v. Goodwin, 18 Ves. 156; Strong 
 
 [See, however. Van Winkle v. Van i). Ingram, 6 Sim. 197; Radburn «. Jer- 
 
 Houlen, 2 Green, Ch. 191.] vis, 3 Beav. 450. 
 
510 OF TRUSTEES FOR THE PAYMENT OF LEGACIES. 
 
 tamentary instrument duly executed according to the statute ;(Z) still 
 less can any new charges be created by any other means.(m) And it 
 was held in a recent case(w) by Lord Langdale, M. R., that where a 
 testator had given a legacy out of a mixed fund, constituted of both 
 real and personal estate, so that the personalty would not have been 
 primarily applicable to its payment, but each fund would have borne 
 its proportion of the amount, a revocation of the legacy by an unat- 
 tested codicil, though good as to the proportion payable out of the 
 personal estate, was invalid as to so much as was payable out of the 
 produce of the realty.(w) 
 
 Even where the legacies are charged on the land only in aid of 
 the ^personal estate, it has been decided, that a subsequent testamen- 
 tary paper, insufficiently attested, will not operate as an implied 
 revocation of the *charge on the real estate.[o) And it will 
 L "'-' be immaterial that the paper contains an express clause re- 
 voking the previous disposition, if the legacy itself be not specifically 
 revoked.(p) It is to be observed, that the present question is wholly 
 independent of those cases, in which a testator, by referring in his 
 will to an unattested paper, has been held to have incorporated the 
 informal instrument into his will.(g') The provisions of the recent 
 Will Act (1 Vict. c. 26), have not aflfected the law on this question. 
 
 A codicil, duly attested, is considered as part of the will ; and 
 where legacies are. charged generally by the will on the real estate, 
 legacies given by such a codicil will be included in the charge, unless 
 a contrary intention appear by the will.(r) 
 
 Where there is a general direction for the payment of legacies, by 
 the executor, the same rule of construction obtains, as in the case of 
 a similar charge of debts :(s) and the presumption is, that the payment 
 was intended to be made by the executor out of the personal assets 
 only.{t) But where the executor is also made devisee of the real 
 estate, the same reasoning, which has been held to support a charge 
 of debts upon the devised estate, would apply with equal force in 
 favor of the charge of legacies ;(u) although this distinction appears 
 
 (/) Brudenell v. Boughton, 2 Atk. Ves. jun. 228, 232; Smart i). Prujean, 6 
 
 272; Att.-Gen. v. Ward, 3 Ves. 331; Ves. 560; Wilkinson «. Adam, 1 V. & 
 
 Hooper v. Goodwin, 18 Ves. 167. B. 460. 
 
 (m) 1 Rop. Legs. 590, 3d ed. (r) Rooke v. Worrall, 11 Sim. 216; 
 
 (n) Stooker v. Harbin, 3 Beav. 479. see Strong v. Ingram, 6 Sim. 197. 
 
 (o) Buckeridge v. Ingram, 2 Ves. jun. (s) Ante, PI. II. (2) of this Section. 
 
 652; Hooper?). Goodwin, 18 Ves. 156. {t) Parker v. Fearnley, 2 S. & St. 
 
 (p; Sheddon V. Goodrich, 8 Ves. 500; 592; Warren v. Davies, 2 M. & K. 
 
 Gallini v. Noble, 3 Mer. 691 ; Francis v. 49. 
 
 Collier, 4 Russ. 331 ; and see Mortimer (u) Elliot v. Hancock, 2 Vern. 143; 
 
 V. West, 2 Sim. 264, where an express Alcock v. Sparhawk, 2 Vern. 228. [See 
 
 revocation of the legacy was held to be Downman v. Rust, 6 Rand. 587 ; Van 
 
 inoperative as to the real estate. Winkle v. Van Houten, 2 Green Cn. 
 
 (9) See Habergham v. Vincent, 2 172; but see Paxson v. Potts, Id. 313. 
 
OF TRUSTEES FOR THE PAYMENT OF LEGACIES. 511 
 
 to have been disregarded by Sir John Leach, V. C, in a modern 
 case, (a;) 
 
 It may be observed, that legacies and annuities given by a will, 
 have been universally treated as on the same iooi\ag.{y) 
 
 The legal effect of a general charge of legacies on the real estate 
 is merely to create a fund in aid of the personalty •.{z) therefore, as 
 in the case of debts, the personal estate must first be applied, unless 
 a contrary intention be declared, or sufficiently appear upon the face 
 of the will ; and the authorities that have been already cited and dis- 
 cussed on this subject with regard to the payment of debts, apply 
 ■with equal force to legacies, and to them the reader is referred, (a) 
 
 However, a general charge of legacies, as such must be carefully 
 distinguished from a devise of land subjected to the payment of a 
 specific sum of money : for in this last case, the only gift of the sum 
 is contained in the direction that it should come out of the land. 
 
 Consequently the produce of the real estate will be the fund, to 
 which recourse must be had exclusively for its payment. (6) And in 
 this respect, *debts and legacies are on a very different foot- 
 ing, for, as has been already seen, a trust to pay a particular ■- -■ 
 specified debt out of the real estate, will not of itself exonerate the 
 personalty from its liability.(e) The difference between them is, 
 that the liability to the legacy is created only by the will, while the 
 debt is a charge on the personal estate, independently of any direction 
 in the will.(d) 
 
 It occasionally happens, that some legacies are charged on the 
 land to the exclusion of the others. Thus in Home v. Medcraft,(e) 
 the testator devised lands subject to debts, and all legacies thereafter 
 mentioned; and he then proceeded to give several legacies, all of 
 which he directed to be paid by the devisee. He then devised the 
 
 {x) Parker v. Fearnley, 2 S. & St. Lichfield, 3 Ves. 479 ; Spurway v. Glyn, 
 
 592. 9 Ves. 483; Noel v. Lord Henley, 7 
 
 (i/) Aloock V. Sparhawk, 2 Vera. 228 ; Price, 241 ; sed vide Holford v. Wood, 
 
 Buckeridge v. Ingram, 2 Ves. jun. 351 ; 4 Ves. 89, and Fowler v. Willonghby, 
 
 Nannock v. Horton,7 Ves. 391; Swifts. 2 S. & St. 354; see Gittins v. Sleel, 1 
 
 Nash, 2 Keen, 20; Page v. Adam, 4 Swanst. 24. [See Hoover v. Hoover, 5 
 
 Beav. 269; Creed v. Creed, 1 Dr. & W. Barr, 351 ; Holliday v. Sommerville, 3 
 
 416, 424. [Paterson v. Scott, 9 Engl.L. Penna. R. 533.] 
 
 & Eq. 261 ; Hawley v. James, 5 Paige, (c) Ante, PL H. (2) of this Section j 
 
 618 ; Trent v. Trent, Gilmer, 174.] Biokham v. Cruttwell, 3 M. & Cr. 763. 
 
 (z) Amesbury v. Brown, 1 Ves. 482; (d) See Noel v. Lord Henley, 7 Pri. 
 
 Holford V. Wood, 4 Ves. 76, 89. 241 ; 2 Jarm. Pow. Dev. 708. 
 
 (n) Ante, PL H. (2) of this Section; (e) Home o. Medcraft, 1 Bro. C. C. 
 
 [notes to Ancaster ». Mayer, ut supra.] 261 ; and see Masters v. Masters, 1 P. 
 
 (6) Whaley v. Cox, 2 Eq. Ca. Abr. Wms. 421 ; Strong v. Ingram, 6 Sim. 
 
 549; Phipps v. Annesley, 2 Atk. 57; 197; Radburn v. Jervis, 3 Beav. 450; 
 
 Amesbury i;. Brown, 1 Ves. 482; Wood but see Rooke v. Worrall, 11 Sim. 216. 
 V. Dudley, 2 Bro. C. C. 316; Read v. 
 
512 OF TRUSTEES FOR THE PAYMENT OF LESACIES. 
 
 same lands to another person, subject to all the legacies before men- 
 tioned ; and finally disposed of the residue of hjs real estate, and he 
 then gave some other legacies. It was held by Lord Thurlow, that 
 these last legacies were not payable out of the real estate.(e) 
 
 Where legacies are charged on the land, the trustees will take the 
 same powers of raising the required amount by sale or mortgage, as 
 where the trust is for the payment of debts ; and it is unnecessary 
 to add anything here, to what has been already said on that sub- 
 ject.(/) It is to be observed, however, that a charge of legacies 
 being certain in its amount, a purchaser from a trustee for their pay- 
 ment prior to the late act 7 & 8 Vict. c. 76,(^) would have been 
 bound to see to the due application of the purchase-money to the 
 purposes of the trust; (A) unless he were expressly exempted from 
 that liability by the terms of the will.(«) But if the estate were 
 charged generally with delts, as well as with legacies, then he would 
 not have been bound to see to the application ; for that would involve 
 him in the account of the debts, which must be first paid.(A) And 
 the same rule prevailed where the land was subjected to annuities, 
 after a general charge of debts. (Z)(l)' 
 
 (e) Home v. Medcraft, 1 Bro. C. C. & P. 32, 9th ed.; Johnson v. Kennett, 3 
 
 261 ; and see Masters v. Masters, IP. M. & K. 630. 
 
 Wms. 421; Strong v. Ingram, 6 Sim. (i) See Bmksw.LordRokeby,2Mad. 
 
 197; Radbum v. Jervis, 3 Beav. 450; 239. 
 but see Rooke v. Worrall, 11 Sim. 216. (4) Rogers v. Skillicome, Ami.. 188; 
 
 (/) Ante; PI. II. (2) of this Section. Williamson v. Curtis, 3 Bro. C. C. 96; 
 
 (g-) The 10th section of that act, and Barker v. Duke of Devonshire, 3 Mer. 
 
 the extent to which it has altered the 310; Johnson v. Kennett, 3 M. & K. 
 
 law on this subject, has been already 630 ; Eland v. Eland, 1 Beav. 235, and 
 
 stated, ante, PI. II. (1) of this Section; 4 M. & Cr. 421. [Andrews v. Spar- 
 
 and see post, Ch. III. of this Division. hawk, 13 Pick. 393; Strowghill u. An- 
 
 (A) Smith V. Gwyon, 1 Bro. C. C. 186 ; stey, 12 Eng. L. & Eq. 365.] 
 Horn V. Horn, 2 S. & St. 448 ; 2 Sugd.V. \l) Page v. Adam, 4 Beav. 269 ; [see 
 
 12 Eng. L. & Eq. 367.] 
 
 (1) But where the nature of the transaction between the trustee for the pay- 
 ment of debts and legacies and the purchaser, afforded in itself sulRcient evi- 
 dence that the purchaser was aware that the sale was not made for the payment 
 of the debts, it has been held, that he would take subject to the charge of lega- 
 cies. Watkin v. Cheek, 2 S. & St. 199 ; Johnson v. Kennett, 6 Sim. 384; S. C. 3 
 M. & K. 631 ; and see Eland v. Eland, 4 M. & Cr. 427; Forbes v. Peacock, 12 
 Sim. 528 [overruled in 1 Phill. 721] ; sed vide Page v. Adam, 4 Beav. 269; 
 vide post, Ch. III. of this Division. [See Stroughill v. Anstey, 12 Eng. L. & Eq. 
 365, upon these cases, and that it is immaterial whether there were debts in fact 
 or not; and Mather t). Norton, 8 Eng. L. & Eq. 255. See post, 506, and note.] 
 
 ' See ante, note to page 342. In Downman v. Rust, 6 Rand. 587, it was held, 
 that a purchaser from assignees for creditors of a devisee of land charged with 
 legacies, was bound to see to the application of the money. It has been doubted 
 whether, under a devise for the payment of legacies simply, in this country, 
 where debts are always on a lien on the land, the purchaser would be held 
 liable. Note to Elliott v. Merryihan, 1 Lead. Cas. Eq. 75. But on a devise charged 
 
OP TKUSTEBS FOR THE PAYMENT OF LEGACIES. 513 
 
 As the legatees all take as volunteers by the bounty of the testa- 
 tor, it is of course competent for him to direct, that any one or more 
 of them shall have a priority in payment over the others. In the 
 absence of any such *direction, the real fund must be applied r^ogi-i 
 equally and proportionably in or towards the satisfaction of 
 all the legacies charged on it. 
 
 If, however, the testator have expressly exempted any part of his 
 estate from the effect of a general charge of legacies, that direction 
 must be observed, and the donee of that part of the estate :will take 
 it relieved from the charge, (m) 
 
 (m) Birmingham v. Kirwin, 2 Sch. & Lef. 448. 
 
 with a specific sum, the purchaser undoubtedly takes subject to the legacy ; 
 Bugbee v. Sargent, 23 Maine, 269 ; Kemp v. MoPherson, 7 H. & J. 320 ; Leavitt 
 V. Wooster, 14 N. H. 550; Long v. Long. 1 Watts, 267; Mohler's Appeal, 8 Barr, 
 28; see Swazey v. Little, 7 Pick. 296; and yet lands so devised are subject to 
 the general lien of the testator's debts. Hoover v. Hoover, 5 Barr, 351. Where 
 the purchase-money is expressly to remain in the hands of the trustees, as for 
 the purpose of applying the income for the benefit of legatees, or the like, the 
 purchaser is plainly not liable; for othervpise, he would be compelled to gua- 
 rantee the trustees' solvency. Hauser v. Shore, 5 Ired. Eq. 357. In Stroughill 
 V. Anstey, 12 Eng. L. & Eq. 357, it was said by the Chancellor, that the rule that 
 a purchaser was not liable to see to the application of the purchase-money vehere 
 a trustee is selling an estate charged by will with debts and legacies, does not 
 depend on the existence of debts, but upon an implied declaration of the testator, 
 that he means to intrust his trustees with the exclusive power of receiving the 
 money, and of absolving the purchaser or mortgagee from seeing to the appli- 
 cation of it; and this power does not cease from there being no debts. It was also 
 held in this case, in which the authorities were fully discussed, that persons 
 dealing with trustees, at a considerable distance of time, without an apparent 
 reason for raising money, are under some obligation to inquire into the bonajides 
 of the trustees, where the latter are merely trustees, and not entitled to the estate. 
 See, also, Mather v. Norton, 8 Eng. L. & Eq. 255. 
 
 In a recent number of the Jurist (17 Jur. pt. ii. 251), however, the positions of 
 Lord St. Leonards in Stroughill v. Anstey, were disapproved of by an able 
 writer, who asserts, that prior to that case, and Forbes v. Peacock, 1 Phill. 717, 
 the rule that where there is a charge of debts the purchaser is absolved from 
 seeing to the application of the money, was considered to be founded, not on 
 the supposed intention of the testator, but on the necessity of the case, "be- 
 cause it would be impossible to satisfy a purchaser, if he had the right to be 
 satisfied; on that point." 
 
 A purchaser is not liable, also, where there is a trust for reinvestment, or the 
 application is to be at a distant time. Coonrod v. Coonrod, 6 Hamm. 114; Worm- 
 ley V. Wormley, 8 Wheat. 421. See upon this subject the articles in 11 Jurist, 
 pt. ii. pages 1 10, 124 ; and as to the liability of purchasers of personalty from exe- 
 cutors, ante, p. 166, and note. 
 
 In Pennsylvania, under the Act of 1834, on sale by an executor or adminis- 
 trator under a power in the will, for any purpose, the purchaser may pay 
 the money into the Orphans' Court, &c., and be thereby discharged from re- 
 sponsibility fpr its application. (Dunlop, Dig. 520.) See Cadbury i;. Duval, 10 
 Barr, 265. 
 
 33 
 
514 OP TRUSTEES FOR THE PAYMENT OP LEGACIES. 
 
 Where some legacies are charged on the land, and others are not 
 the legatees, who have the two funds to resort to, will not he suffered 
 to exhaust the personal estate to the disappointment of those who 
 have only that fund ; but equity will marshal the assets in favor of 
 the last class of legatees.(w)' There is an exception to this rule, 
 indeed, in the case of legacies to charities, in whose favor the assets 
 cannot be marshalled ; as that would, in effect, be creating an in- 
 terest in land in violation of the Statute of Mortmain.(o)(l) 
 
 Where an executor, who is also appointed the trustee for the in- 
 vestment and application of legacies, has set apart and invested the 
 legacies, he will be considered to have devested himself of the cha- 
 racter of executor quoad those legacies, and to have assumed that of 
 trustee. Consequently, if the trust fund be afterwards lost, the 
 legatees will have no further claim on the testator's estate ; and as 
 between themselves the loss must be borne in equal proportions 
 by all the legatees, whether they take by particular or residuary 
 gift.(^) 
 
 (n) Hanby v. Roberts, Arabl. 127; [see Wright t). Trustees, &c. 1 Hoffm. 
 
 Masters v. Masters, 1 P. Wms. 421; Ch. 202]. 
 
 Bligh V. Earl of Darnley, 2 P. Wms. 6 19; (p) Page v. Leapiiigwell, 18 Ves. 463; 
 
 Bonner v. Bonner, 13 Ves. 379. Ex parte Chadwin, 3 Sw. 380 ; Byrchall 
 
 (0) Mogg V. Hodges, 2 Ves. 52; Hob- v. Bradford, 6 Mad. 13, 235; Philippo 
 son V. Blackburn, 1 Keen, 273; Wil- v. Munnings, 2 M. & Cr. 309; Wilmot 
 liaras V. Kershaw, Id. 274, n.: Philan- v. Jenkins, 1 Beav. 401; Newman v. 
 thropic Society d. Kemp, 4 Beav. 581 Williams, 10 Law Journ. N. S., Chanc. 
 
 106; [ante, 237.] 
 
 (1) It has been decided, that where a testator creates a general mixed fund of 
 real and personal estate, and then gives several legacies, some of which are for 
 charitable purposes, but adds a declaration, that the charity legacies are to be 
 charged exclusively on the personal estate, this direction will not of itself operate 
 to throw the charity legacies exclusively on the personal assets, but the real 
 fund will still remain liable to its proportion of those legacies, and there will 
 consequently be a lapse to that extent. Sturge v. Dimsdale, 6 Beav. 462 ; see 
 Philanthropic Society v. Kemp, 4 Beav. 581. 
 
 ' Though in general there is no marshalling in favor of legatees and annuitants, 
 as against devisees, yet where the lands devised are expressly made subject to 
 all debts, or are devised to be sold therefor, the former are entitled to stand iuthe 
 place of the creditors as against the devisee. Paterson v. Scott, 9 Eng. L. &Eq. 
 261, before Lord Justices of Appeal, overruling Morehouse v. Scaife, 2 Myl. 
 & Cr. 695: see Smith v. Wyckoff, 1 1 Paige, 39 ; Mollan v. Griffith, 3 Paige, 402; 
 Loomis's Ajipeal, 10 Barr, 390; Bardwall v. Bardwall, 10 Pick. 19-; but see Mil- 
 ler V. Haswell, 3 Murph. 194; and vide on this subject notes to Aldrich w. Cooper, 
 2 Lead. Cas. Eq. 222, &c., and the cases there cited; and 14 Jur. pt. ii. 234. But 
 the general charge of debts implied by law in this country, will not entitle lega- 
 tees to contribution from devisees. Hoover v. Hoover, 5 Barr, 351. The doc- 
 trine in England now is, that legatees, and devisees, being equally objects of the 
 testator's bounty, are entitled to equal consideration. See Tombs v. Koch, 2 
 Coll. 494. 
 
OF TRUSTEES FOK RAISING PORTIONS. 515 
 
 As a general rule, legacies charged on land will bear interest from 
 the time of payment fixed by the testator. And if no time of pay- 
 ment be fixed, then the interest will commence from the expiration 
 of a twelvemonth after the testator's death.' The interest allowed 
 by the court is usually at the rate of four per cent. It is almost 
 needless to add, however, that the general rules on these points may 
 be varied or controlled by the intention of the testator, expressed or 
 necessarily implied from the will. (5') 
 
 IV. — OF TRUSTEES FOR RAISING PORTIONS. 
 
 In settlements of property, whether by deed or will, provisions 
 are very generally contained for raising portions for the children ; 
 and a term of years is usually carved out of the estate, and limited 
 to trustees to secure the payment of these charges.^ 
 
 Charges of this description are in their nature real, and although 
 there *be a covenant in the settlement on the part of the r^ogc-i 
 settlor to pay the amount, yet that will usually be considered 
 as auxiliary only, and the land will, notwithstanding, be primarily 
 liable.(r) It follows, therefore, that where the trust is created by 
 will, or where there is no covenant in the settlement for the payment 
 of the portion, no debt will be created which can be enforced against 
 the settlor or his personal assets. («) 
 
 In these cases the term for securing the portions is usually limited 
 to the trustees, in remainder expectant upon the determination of 
 the parent's life estate, while the period fixed for the payment of the 
 portions may, and frequently does, happen in the lifetime of the pa- 
 rent. Under those circumstances a doubt has very frequently arisen 
 in practice (where the event is not expressly provided for in de- 
 claring the trust), whether the portions are to be raised immediately 
 on the arrival of the period of payment by the sale or mortgage of 
 the expectant term, or whether the raising of the money should be 
 postponed until the term takes eflect in possession by the determina- 
 tion of the previous life-estate. The decisions on this subject are by 
 no means uniform. In some of them the portions have been held to 
 
 (5) See 2 Rop. Legs. 222, et seq. (s) Edwards v. Freeman, 2 P. Wms. 
 3d ed. 437 ; Burgoyne v. Fox, 1 Atk. 576. 
 
 (r) Lanoy v. Duke of Athol, 2 Atk. 
 444; Leohmeret). Charlton, 15Ves. 193. 
 
 ' See as to the United States, 2 Kent Comm. 417, note (a); Glen v. Fisher, 6 
 J. C. R: 33; Birdsale v. Hewitt, 1 Paige, 32; Trippe v. Frazier, 4 H. & J. 446; 
 Hite V. Hite, 2 Rand. 409 ; and post p. 376. 
 
 " See Hawley v. James, 5 Paige, 318; Morehouse v. Colvin, 9 Eng. L. & Eq. 
 136 ; S. C. 13 Id. 167 ; De Beil v. Thompson, 3 Beav. 469 ; 12 CI. & F. 45 ; Sugd. 
 Law of Prop. 53; Jones v. Maggs, 10 Eng. L. & Eq. 161 ; 2 Spence Eq. Jur. 390. 
 
516 OF TRUSTEES FOR RAISING PORTIONS. 
 
 be raiseable in the parent's lifetime ;(«) whilst in others it has been 
 decided, that the children are not entitled until the parent's death. (m) 
 It was said by Lord Talbot, and the words were adopted by Lord 
 Eldon, that " the raising or not raising must depend upon the particu- 
 lar penning of the trust, and the intention of the instrument. "(a;) 
 And the court in construing the instrument will not be eager to lay 
 hold of circumstances, but will hold an equal mind.(?/) Although it 
 was laid down in some earlier cases, that very small grounds would 
 be sufficient to induce the court to decide agaipst the raising of the 
 money before the term vested in possession. (z) 
 
 As a general rule, where portions secured by a term of years are 
 made payable at a particular time, or on a particular event, as at 
 twenty-one, or marriage, and the contingencies have happened, and 
 there is nothing in the instrument to indicate a contrary intention, 
 the portions must be raised by the immediate mortgage or sale of the 
 term, though it be reversionary.(a) 
 
 But it is scarcely necessary to add, that if there be any expres- 
 sions tantamount to a direction, that the portions shall be raised only 
 when the term takes effect in possession, such an expression of the 
 intention will prevail ; and where the trust was to raise the portions 
 from and after the commencement of the term, that has been held 
 r*QfifiT ^^ffic^^'i* f°'' *^is purpose. (5) *And so if the parents have a 
 ■- J general power of appointing the portions amongst the chil- 
 dren by deed or will in such portions and manner and at such times 
 as they may choose ; that will be considered plain evidence of an in- 
 tention, that the money should not be raised in the lifetime of the 
 parents, (c) 
 
 The intention must be collected solely from the context of the in- 
 strument itself, and any extraneous evidence is inadmissible. (d) 
 
 To prevent any question on this point, a direction is now usually 
 
 IS) Hillier v. Jones, 1 Eq. Ca. Abr. mour, 4 Ves. 440 ; Wynter v. Bold, ] S. 
 
 337; Gerrard v. Gerrard, 2 Vern. 458; & St. 507; Verneyv. Veruey, 2 Ed. 25. 
 
 Staniforth v. Staniforth, Id. 460 : Sandys {x) Hebblethwaite v. Cartwright, Forr. 
 
 V. Sandys, 1 P. Wms. 707 ; Hall v. Car- 32 ; Codrington %. Foley, 6 Ves. 379. 
 
 ter, 2 Atk. 354: Hebblethwaite v. Cart- {y) 6 Ves. 380. 
 
 wright, Forr. 30; Smiths). Evans, A tnbl. («) Stanley -u. Stanley, 1 Atk. 549; 
 
 533 ; Codrington v. Foley, 6 Ves. 364; Clinton v. Seymour, 4 Ves. 460. 
 
 Smith V. Foley, 3 Y.& C. 142; Miohell (o) Codrington v. Foley, 6 Ves. 380. 
 
 V. Michell, 4 Beav. 549. (6) Butler v. Duncomb, 1 P. Wms. 
 
 («) Reresby v. Newland, 2 P. M^ms. 448. 
 
 94; S. C. 6 Bro. P. C. 75; Brome v. (c) Wynter i;. Bold, 1 S. & St. 507; 
 
 Berkely, Id. 484; Stanley v. Stanley, 1 but see Gough v. Andrews, 1 Coll. 69, 
 
 Atk. 549 ; Corbet ti. Maydwell, 2 Vern. where the existence of such a power 
 
 640; sed vide S. C. P. 656; Stevens v. in the parents was held by V. C. K. 
 
 Dethick, 3 Atk. 39 ; Conway v. Conway, Bruce not to have the effect stated in 
 
 3 Bro. C. C. 267 ; sed vide Lord Eldon's the text, 
 
 observations, 6 Ves. 379; Clinton u. Sey- (d) Corbet «. Maydwell, 2Vern. 641. 
 
OP TRUSTEES FOR RAISING PORTIONS. 517 
 
 inserted, that the portions shall not be raised in the lifetime of the 
 parents :(e) and in all well-drawn instruments, this direction should 
 go on to specify, whether the portions shall be raised in case any of 
 the children should die after the happening of the contingency on 
 which the portion is given, but before the time when it is made pay- 
 able : as, for instance, where the trust of portions is for younger chil- 
 dren at twenty-one or marriage, but not to be raised or paid until 
 after the death of the parents ; and a child attains twenty-one or 
 marries, but dies afterwards in the parents' lifetime. Unless this 
 event is provided for, when the time arrives for the payment of the 
 portions, a question will undoubtedly arise, whether the representa- 
 tives of the deceased child are entitled, and this question has been a 
 very fruitful source of litigation from an early period. In such cases, 
 however, the usual construction, and the one which the court will 
 strive to adopt(/) is, that the child took a vested interest in the por- 
 tion, and that the period of payment only was postponed ; and the 
 personal representatives of the child will therefore be entitled when 
 the time for raising the money has arrived. (^) 
 
 But the court, in favor of such a construction will not go the length 
 of doing violence to the express words of the instrument ; and if it 
 be manifest on the face of the settlement, that no child was intended 
 to take except in the event of its surviving the parents, the intention 
 so expressed will prevail, (A) 
 
 Where portions are effectually charged on the land, the trustees 
 will usually take a power of selling or mortgaging for the purpose of 
 raising them ; although that power is not expressly given them by 
 the terms of the instrument. For this is the most convenient mode 
 of carrying out the intentions of the parties, to which the court will 
 always strive to give effect.(i) 
 
 And though the trust is to raise the portions by means of the rents 
 and profits ; yet, if a particular time be fixed for the payment of the 
 whole amount, that will be considered inconsistent with the intention 
 
 (f) See Hall v. Carter, 2 Atk. 356. v. Earl of Glengall, 1 Dr. & W. 15. [See 
 (/) Howgrave v. Cartier, 3 V. & B. Evans ^. Scott, 11 Jur. 292; 1 CI. & F. 
 
 86; Whatfordi;. Moore, 2 M. & Cr. 291; (N.S.) 57; Jones v. Jones, 13 Sim. 568; 
 
 Clayton v. Earl of Glengall, 1 Dr. & W. Henderson v. Kennicott, 12 Jur. 848.] 
 
 1,15- {h) Hotchkin v. Humfrey, 2 Mad. 65 ; 
 
 (g) Emperor v. Eolfe, 1 Ves. 208; Fitzgerald u. Field, 1 Russ. 430; What- 
 Woodcock V. Duke of Dorset, 3 Bro.C. ford u, Moore, 7 Sim. 574 ; S. C. 3 M. 
 C. 569 ; Hope v. Lord Clifden, 6 Ves. & Cr. 274. 
 
 499; Powis v. Burdett, 9 Ves. 428; (i) Backhouse v. Middleton, 1 Ch. 
 
 King V. Hake, 9 Ves. 438 ; Howgrave Ca. 175; Meynel v. Massey, 2 Vern. 1 ; 
 
 V. Cartier, 3 V. & B. 79 ; S. C. Coop. 66 ; Sheldon v. Dormer, Id. 3 10 ; Ashton v. 
 
 Fry V. Lord Shelbourne, 3 Sim. 243; , 10 Mod. 401. 
 
 Combe v. Combe, 2 Atk. 185 : Clayton 
 
518 OP TKUSTBES POK RAISING POETIONS. 
 
 r*3671 *^^* ^^^ *^"™ should be raised only by the gradual perception 
 L -"of the annual income, and a sale Tvill be directed. (it) And 
 the same doctrine will prevail, where the trust is, to raise the por- 
 tions " as soon as conveniently may be," or, "as soon a-s possible.'YZ) 
 Indeed, in several cases, a trust, to raise a gross sum by " rents and 
 profits," without anything more, has been held to authorize a sale or 
 mortgage by the trustees •,{m) if there be no further indication of an 
 intention to restrict the meaning of the term to the "annual" rents 
 and profits.(n) 
 
 However, it is clearly competent for the settlor to prescribe that 
 the portions shall be raised out of the yearly income only, and not 
 out of the corpus of the estate. And therefore, if the direction be 
 to raise the sum out of the "annual" rents and profits,(o) or if the 
 intention, so to confine the trust, be otherwise sufficiently manifest, 
 a sale or mortgage by the trustees cannot be supported.(p)' 
 
 Where the rents and profits are expressly subjected to the payment 
 of the portions, although the trust might authorize a sale or mortgage 
 if required, it is notwithstanding the duty of the trustees, in the first 
 place, to apply any of the rents which may have accrued towards the 
 satisfaction of the portions •,{q) and it is immaterial that an alterna- 
 tive is given them to raise the amount by the rents or profits, o?* by 
 sale or mortgage. (r) 
 
 If the term limited for securing the portions be insufficient for 
 raising them by ordinary means, recourse may be had to the timber, 
 
 (A) Sheldon v. Dormer, 2 Vera. 310; (n) See Ivy v. Gilbert, 2 P. Wms. 19 ; 
 
 Backhouse I). Middleton, 1 Ch.Ca. 175; Evelyn v. Evelyn, Id. 669; Mills v. 
 
 Okeden v. Okeden, 1 Atk. 551 ; see Al- Banks, 3 P. Wms. 7, 8. 
 
 Ian ■!). Backhouse, 2 V. & B. 65, 75. (o) Anon. 1 Vern. 104; and see 
 
 (/) Trafford v. Ashton, I P. Wms. Garmstone v. Gaunt, 9 Jurist, 78. 
 
 416 ; Ashton v. , 10 Mod. 401. (p) Elvers v. Derby, 2 Vern. 72; Ivy 
 
 (m) Anon. 1 Vern. 104; Warburton v. Gilbert, 2 P. Wms. 13; Prec. Ck 
 
 V. Warburton, 2 Vern. 420; Green v. 583; Evelyn i;. Evelyn, 2 P. Wms. 669; 
 
 Belcher, 1 Atk. 505 ; Hall v. Carter, 2 Atk. Mills v. Banks, 3 P. Wms. 1 ; Okeden v. 
 
 858 ; Baines v. Dixon, 1 Ves. 42 ; Lord Okeden, 1 Atk. 550 ; see Shaftesbury v. 
 
 Shrewsbury v. Shrev^sbury, 1 Ves. jun. Duke of Marlborough, 2 M. & K. 121. 
 
 234. [See Schermerhorne v. Schermer- (g) Okeden v. Okeden, 1 Atk. 552. 
 
 home, 6 J. C. R.70; Story's Eq. § 1063, (j-) Warter v. Hutchinson, 1 S. &St. 
 
 &c. Ante, p. 342, n. (c.)] 276 ; see Hall v. Carter, 2 Atk. 358. 
 
 ' Where a testator directs the rents and profits of an estate to be applied for a 
 limited period to the maintenance and education of certain individuals, this is a 
 charge on the land in the hands of the devisees. Fox v. Phelps, 17 Wend. 393; 
 20 Wend. 437, in error: see Robinson v. Townshend, 3 G. & J. 413. In Hawley^). 
 James, 5 Paige, 318, it was held that where trustees were directed by a will to 
 raise portions out of the rents and profits of an estate, and they suffered the trust 
 to expire without raising the portion, the court might direct the portion to be raised 
 out of the rents and profits on hand; and if they had been distributed, the dis- 
 tributees to refund. 
 
OF TRUSTEES FOR RAISING PORTIONS. 519 
 
 ■which may be sold, or to mines, which may be worked for that pur- 
 pose.(s) 
 
 Where one gross sum is directed to be raised for the portions of 
 several younger children, to be paid to them at twenty-one, or any 
 other specific period, in such a way that the whole of the shares are 
 vested, and some of them have become payable, the whole sum 
 should be raised at once by the trustees, and the shares not then 
 payable, invested in the three per cents. For it will not be proper to 
 incumber the estate with as many different sales or mortgages as 
 there are shares to be paid.(«) But it is otherwise where several dis- 
 tinct sums are directed to be raised and paid to the children at par- 
 ticular times ; for there, the land will not be discharged by the raising 
 and investment of any of those sums before the actual time of their 
 respective payment has arrived : and it is immaterial that some of the 
 sums so charged may have become payable.(M) 
 
 Where a sum of money is charged on land, it will carry interest 
 from the time when it is declared to be payable, although nothing be 
 expressly *said respecting interest,(a;) and the interest allowed r^^qco-i 
 by the court is usually four per cent.( «/) If there be an in- ^ -^ 
 tention expressed or implied in the instrument to give interest or any 
 payment in lieu of interest from a particular period, that direction 
 will of course be followed in place of the general rule.(s) 
 
 A trust for raising portions for children is expressly exempted 
 from the operation of the Thellusson Act (39 & 40 Geo. III. c. 98), 
 by which the period for accumulation of the income of property is 
 restrained within certain limits.' 
 
 The expenses of raising portions must, as a general rule, be borne 
 by the trust estate, and not by the portions themselves.(a) Although 
 
 (s) Offley V. Offley, Prec. Ch. 27. ter, 2 Atk. 358 ; Leech v. Leech, 2 Dr. 
 
 {t) Gillbrand v. Goold, 5 Sim. 149. & W. 568, overruling Hays v. Bay ley, 
 
 («) Dickenson v. Dickenson, 3 Bro. 3 Sugd. V. & P. 10th edition. 
 C. C. 19. (i/) Gullam v. Holland, 2 Atk. 343 ; 
 
 {x) Beal V. Beal, Prec. Ch. 405 ; Lord Trimlestown v. Colt, 1 Ves. 277. 
 Roseberryu. Taylor, 6 Bro. P. C. 43; (2) Boycot v. Cotton, 1 Atk. 553; 
 
 Bagenal v. Bagenal, Id. 81; Boycot v. Mitchell v. Bower, 3 Ves. 286; Clayton 
 
 Cotton, 1 Atk. 552; Earl of Pomfret v. v. Earl of Glengall, 1 Dr. & W. 1. 
 Lord Windsor, 2 Ves. 472; Hall v. Car- (a) Michell v. Michell, 4 Beav. 549. 
 
 ' As to what are portions within this Act, see Jones v. Maggs, 1 1 Engl. L. & 
 Eq. 159; Morgan v. Morgan, 2 Id. 35: Halford v. Staives, 16 Sim. 488; 13 Jur. 
 70; Beech v. Lord St. Vincent, 14 Jur! 731 ; 19 L. J. Ch. 131 ; Evans v. Hellier, 
 5 CI. & F. 114, and particularly Lord Barrington v. Siddell, 17 Jurist, 241, and 
 Burt V. Sturt, Id. 729, where the authorities are fully discussed. The 9th section 
 of the Act of April 18th, 1853, of Pennsylvania, (P. L. 507), copied from the Thel- 
 lusson Act, omits the proviso with regard to portions ; so with the Revised Sta- 
 tutes of New York, Part II. Tit. 2, Chap. I. Art. I. § 37. 
 
520 OF INVESTMENT BY TRUSTEES. 
 
 this rule will be subject to any direction to the contrary by the cre- 
 ator of the trusts. 
 
 V. — OF INVESTMENT BY TRUSTEES." 
 
 The investment of the trust funds is one of the most important 
 duties of a trustee, both as respects the interests of the cestui que 
 trusts, and his own security. Any direction in the trust instrument 
 as to the particular mode and nature of the investment, must be car- 
 ried out as far as possible, and the trustees will not be answerable 
 for any loss arising from that course. 
 
 But where the direction for investing is in the usual general terms, 
 
 ' In many of the United States there are statutes which authorize the invest- 
 ment, by fiduciaries, in particular stocks, so as to discharge themselves from further 
 liability. Thus, in Pennsylvania, by the act relating to Orphans' Courts (29 
 March, 1832, Dunlop, 471), Sect. 14, it is provided in substance, that where an 
 executor, guardian, or trustee, shall have in his hands trust-moneys in any way 
 needing investment, as therein specified, he may present a petition to the Or- 
 phans' Court of the proper county, stating the circumstances of the case, &c.; 
 when it shall be lawful for the court, on due proof, to make an order directing 
 the investment of such moneys in the stocks or public debt of the United 
 States, in the public debt of the Commonwealth, or of the city of Phila- 
 delphia, or on real securities, at such prices or on such rates of interest 
 and terms of payment, respectively, as the court shall think fit : and on such 
 investment, the executor, guardian, or trustee, shall be fully exempted from lia- 
 bility. It is provided, however, that the court shall not make any order coii- 
 trary to the direction of the vrill or other instrument, in regard to the investment 
 of the moneys. By the subsequent Acts of 13 April, 1838, 15 April, 1850, and 
 8 April, 1851, the provisions of the Act of 1832 are extended to the stock of the 
 incorporated townships and districts of Philadelphia County, of Pittsburg and 
 Alleghany, and of the water-works of Kensington, Philadelphia County. It has been 
 held, however, that these acts were intended for the benefit of the trustee, and that 
 he might, if he choose, invest as before; Twaddell's App., 5 Barr, 15; Worrell's 
 App., 9 Barr, 508; Barton's Estate, 1 Pars. Eq. 24; the expense and delay of a 
 petition being a useless burden in the case of small sums, as accruing interest. 
 See Twaddell's App., ut supr. In Maine, Rev. St.^ lit. Testamentary Trustees, ch. 
 III. Ml; the Court of Probate and Supreme Court may authorize the investment 
 of trust-moneys in real estate, or in any manner most for the interest of all concerned. 
 The provisions of New Hampshire, Rev. St. 1842, page 335, and Vermont, Rev. 
 St. 1839, tit. xii. ch. 55, are similar. In Georgia, Cobb's New Dig. 333. trustees 
 are authorized to invest in stocks, bonds, or other securities, issued by the State, 
 which will relieve them from liability. And see Rev. Code Va. 552, 624 ; Rev. 
 Code New Jersey, 209, &c.; Rev. St. Missouri, 551 ; Rev. St. Michigan, 301. 
 
 In New York, it was said in Ackerman v. Eraott, 4 Barb. S. C. 626, that by 
 analogy to the English rule, trustees would be authorized to invest in real securi- 
 ties, in the public stocks of the United States, or of the Slate of New York, or in 
 the N. Y. Life Insurance and Trust Company. It seems that in Maryland, how- 
 ever, there is no favored stock. Murray v. Feinour, 2 Maryl. Ch. 419 ; Evans v. 
 Inglehart, 6 Gill & J. 192. So in Massachusetts, it was said in Lovell v. Minott, 
 20 Pick. 119, that the English rule "is inapplicable in this country, and unte- 
 nable. In fact, there are no public securities in this country which would 
 answer the requisitions of an English Court of Equity." 
 
OF INVESTMENT BY TRUSTEES. 521 
 
 as, " to invest in government or real securities," the trustees must 
 be governed by the construction which the court has put upon a trust 
 so expressed. Therefore, a trust to invest on real securities will be 
 properly executed by lending the trust-money on mortgage of free- 
 hold lands or copyholds of inheritance to the extent of two-thirds of 
 the then value. (6) But an advance to that extent will be improper 
 upon the security of houses or buildings, or leasehold hereditaments, 
 which are necessarily of a perishable nature ; or, still more, if the 
 value depend on the occupation of the premises for any purpose of 
 trade. And the trustees would be held personally responsible for 
 any loss occasioned by such an investment. (c) So it has been held, 
 that a power to lend trust-money on real or personal security, does 
 not enable the trustees to accommodate a trader with a loan upon his 
 bond.((;?) However, where there is a discretionary power for execu- 
 tors and trustees to invest in the alternative on real or personal 
 security, they will be justified as against legatees or other volunteers, 
 where, in the exercise of a sound discretion, they lend the trust-money 
 to an apparently responsible person at a reasonable interest, (e) But 
 it seems that this rule would be difi"erent as against creditors.{fy 
 
 (6) Stickney v. Sewell, 1 M. & Cr. Phillipsonv.Gatty, 7Hare, 516; but see 
 15; and see Wyalt v. Sharratt, 3 Beav. Jones v. Lewis, ut supra.] 
 498. [See Jones v. Lewis, 13 Jur. 877.] (rf) Langston v. Olivant, Coop. 33. 
 
 (c) Stickney v. Sewell, 1 M. & Cr. 8; (e) Forbes v. Ross, 2 Cox, 1 16. 
 see Wyatt V. Sharratt, 3 Beav. 498. [See (/) Doyle v. Blake, 2 Sch. & Lef. 
 
 239, 40. 
 
 ' See Ackerman v. Emott, 4 Barb. S. C. 626; Murray v. Feinour. 2 Maryl. Ch. 
 419. The general rule is also in the United States, that either public securities 
 or real securities are to be preferred. Ibid., Gray v. Fox, Saxt, 259 ; Worrell's 
 App., 9 Barr, 508. What are real securities, has been a matter of question. It 
 is clear that trustees cannot convert by purchasing land with the trust-moneys; the 
 cestui que trusts having in such case the right to elect between the land, the 
 principal money, and interest. Ousely v. Anstruther, 10 Beav. 456; Bonsall's 
 App., 1 Rawle,273; Billington's App., 3 Rawle, 55; Kaufman v. Crawford, 9 W. 
 & S. 131 ; Royers' App., 11 Penn. St. 36. Though a direction to invest in stocks or 
 productive real estate, was held in Parsons v. Winslow, 16 Mass. 368, to authorize 
 the purchase of land or dwelling-houses; or the purchase of the widow's right 
 of dower on " such terms as to make the estate, when disencumbered, pro- 
 ductive in proportion to its cost." In Phillipson v. Gatty, 7 Hare, 516. on the 
 usual trust for government or real securities, it was held that a mortgage on town 
 houses, whose value depended on their situation, and which was effected by 
 covenants with neighboring houses, which mortgage was nearly to the value, 
 was a breach of trust. But in Jones v. Lewis, 13 Jur. 877 ; 3 De Gex & Sm. 471, 
 where trustees were directed by will to place the trust-moneys in the public funds, 
 or in some good and approved freehold or leasehold securities at interest, the 
 trustees, acting honestly and in good faith, upon the report of a surveyor (who 
 had valued the property at £3500, and the annual rental at £175), lent £2600, on 
 a mortgage, with powers of sale, of the valued property, which consisted of four 
 freehold messuages, at the time in an unfinished state, the actual yearly rent of 
 
522 OF INVESTMENT BY TRUSTEES. 
 
 Where the trust is in the alternative to invest in land or any other 
 r*QRQn *s^curity, the investment in land will be taken as the one pri- 
 L -I marily contemplated by the settlor ; unless the nature of the 
 
 which being only £105. The mortgagor having become insolvent, the trustees 
 sold the property in 1836, for less than the amount lent by about £350, which 
 sum was lost to the estate. In a suit by the cestui que trust, the court declined to 
 charge the trustees, and allowed them their costs of suit, expenses, &o. Under 
 a power in a settlement to trustees to invest on real securities, in Ireland, it was 
 held in a recent case by the Master of the Rolls, that the trustees were authorized 
 in lending money upon leaseholds for lives, with a covenant for perpetual re- 
 newal, subject to a head rent ; but that they ought not to lend more than one- 
 half of the net value of the property. Macleod v. Aniiesley, 17 Jur. 608. 
 In Morris v. Wright, 14 Beav. 291, it was questioned whether a trustee would be 
 justified in lending on a second mortgage, without obtaining the legal estate. 
 That the security is greater than is necessary, is not, however, objectionable, 
 and, therefore, where, according to the terms of the trust, the fund provided to 
 secure an annuity may be invested on real security, the security chosen will not 
 be an improper one, because it produces annually somewhat more than the an- 
 nuity requires. Barnett v. Sheffield, 1 De G., Mac. & G. 371 ; 12 Engl. L. k Eq. 
 150. In Mant v. Leith, 16 Jur. 302; 10 Engl. L. & Eq. 302, railway debentures, 
 though nominally real security, were held not a proper investment under the general 
 power above stated, as they " could not be enforced in the ordinary way in which 
 real security ought to be enforced, and the repayment could not be enforced for 
 eight years." The Master of the Rolls remarked, " It is not sufficient for a trus- 
 tee to say in defence of an investment, that it is on real security. There are 
 other things to be considered — the nature of the property, and other matters. It 
 may be that the property, though sufficient, is involved in litigation." London 
 Dock stock, sewer bonds, and turnpike bonds, secured by a mortgage on the 
 tolls and toll house of a company, were held not to be real securities, in Robin- 
 son V. Robinson, 11 Beav. 371 ; 12 Jur. 967; but in the case on appeal, where 
 the decision of the Master of the Rolls was reversed, the turnpike bonds were 
 declared to be real security, and it was decided to be no breach of trust to have 
 left funds remaining invested in them, as they had been by the testator; but at 
 the same time, no opinion was expressed on the question as to whether the exe- 
 cutors would have been authorized to have invested in them in the first instance; 
 and a reference was directed to determine whether it would not be expedient to 
 have them sold. In Barry v. Marriott, 12 Jur. 1043 ; 2 DeG. & Sm. 491, the public 
 funds were treated as preferable to mortgages, where the question of a change was 
 submitted to the court. In McCall v. Peachy, 3 Munf. 288, under a direction to 
 invest in '■'good and sufficient securities " in Virginia or Maryland, as the execu- 
 tors thought proper, it was held that they were authorized to invest in "town-office 
 certificates," and other public securities. In Twaddell's App,, 5 Barr, 15, an in- 
 vestment in the loans of the Lehigh Navigation, a company owning coal lands, 
 and a canal to a much greater value than its debts, the interest on the loan being 
 a preferred claim on the income, was held to be substantially on real estate. Sub- 
 sequently, however, in Worrell's App., 9 Barr, 508, an investment in the stoch of 
 the Schuylkill Navigation Company, which was not preferred, was held a breach 
 of trust, though the company at the time was in good standing, and frequently 
 selected for investments by trustees. See, also, the remarks of Gibson, C. J., in 
 Twaddell's Appeal, on investment in the stock of companies where there is a 
 preferred loan. In Worrell's Appeal, Twaddell's case was thought to have 
 gone to the limits of the doctrine ; and the practice of investing in navigation and 
 
OF INVESTMENT BY TRUSTEES. 523 
 
 trusts forbids the adoption of that construction. (^) If the trust be 
 to invest on some "good and sufficient security," the court will put 
 its own interpretation on those terms, and will sanction no invest- 
 ment which its own rules do not authorize. (A) And a trust to invest 
 at the trustee's " discretion," will not authorize a loan of trust-money 
 on personal security. («) 
 
 A power to invest on personal, or any other unusual security, will 
 be construed strictly, and the trustee will not be justified in Exceed- 
 ing the terms of the authority. Thus, where the trustees of a set- 
 tlement were empowered to lend 3,000?. on personal security, and 
 they lent 5,000Z., being nearly the whole of the fund, they were held 
 liable for a breach of trust, as having exceeded their authority. (^) 
 And so a power in a settlement to lend trust-money to the husband 
 on the security of his bond, will not authorize a loan to him on his 
 promissory note.iV) In a recent case, a trustee by the terms of the 
 settlement, was "empowered and required" to lend the trust-money 
 to the husband on his personal security upon the requisition of the 
 wife. The husband became insolvent, and took the benefit of the 
 
 (g-) Earlom ?). Saunders, Ambl. 340 ; Steward, Coop 6; De Manneville v. 
 
 Cowley V. Hartsonge, 1 Dow. 361; Crompton, 1 V. & B. 359. 
 
 Cookson V. Reay, 5 Beav. 22; see (i) Pocock v. Reddington, 5 Ves. 
 
 Hereford v. Eavenhill, 5 Beav. 5). 794. [Wormeley d. Wormeley, 1 Broc- 
 
 (A) Booth V. Booth, 1 Beav. 125; see kenb. 339, 8 Wheat. 421.] 
 
 Trafford v. Boehm, 3 Alk. 440 : Ryder {k) Payne v. Collier, 1 Ves. jun. 170. 
 
 V. Bickerton, 3 Sw. 80, n.; Wilkes v. (I) Greenwood v. Wakeford, 1 Beav. 
 
 576. 
 
 other companies, whose stability was uncertain, was strongly reprobated. In a 
 subsequent case, however, Rush's Estate, 12 Penn. St. R. 375, where there was 
 an express direction to invest in any loans of the United States, or of the State 
 of Pennsylvania, or in any of the incorporated districts of the County of Phila- 
 delphia, " or in any ■public stocks or securities, bearing an interest," it was held that 
 executors were authorized to invest in the same Lehigh Loan ; it being in the 
 popular sense in which the testator used the phrase, "a public stock." Whether, 
 however, Hemphill's Appeal, 18 Penn. St. R. 303, does not interfere with the 
 reasoning of the Chief Justice in the last case, may, perhaps, be doubted. In 
 Ex parte Huff, 2 Barr, 227, under a power to invest in ground-rents, it was held 
 that an investment in a redeemable ground-rent was authorized"; such being a 
 usual mode of creating ground-rents in Pennsylvania, and, indeed, the only one 
 now allowed under the Act of 1850. "City stock," at the time depreciated, was 
 held an improper investment, in Trustees of Trans. Univ.i). Clay, 2 B. Monr. 386. 
 From Rush's Appeal, 12 Penn. St. R., it would appear that, under general terms, 
 the court would not authorize an investment on real security in another state; 
 but if the testator expressly directs such investment, the court will not change it. 
 Burrell v. Sheill, 2 Barb. S. C. 457. 
 
 A direction to invest in " bank stocks, or freehold lands or lots," will not au- 
 thorize investment in the United States loan. Bannister v. McKensie, 6 Munf. 447. 
 
524 0]? INVESTMENT BY TRUSTEES. 
 
 act, and the trustee then refused to lend him the money, though re- 
 quired to do so by the wife ; and it was held by Sir K. Bruce, V. C, 
 that the insolvency of the husband had created such an alteration of 
 the circumstances as to justify that refusal. (m) However, it does 
 not follow that it would have been a breach of trust in this case, if 
 the trustee had complied with the wife's requisition, and lent the 
 money to the husband, notwithstanding his insolvency.(n) 
 
 If the power, authorizing an investment of the trust funds on per- 
 sonal security, require the observance of any formalities, those for- 
 malities must be duly observed. Thus, where the consent in writing 
 of the wife is made requisite previously to such an investment, the 
 trustees will be liable for investing with only her verbal consent ;(o) 
 and so where attestation is required to the written consent, that for- 
 mality cannot be dispensed with,(p) and a subsequent consent to the 
 investment will not be sufficient where a previous consent was made 
 necessary, (g') 
 
 A power for the trustees to invest " on good private security" does 
 not warrant their retaining the fund in their own possession, and using 
 it for the purposes of their business ; and under such circumstances 
 they would be charged with interest at five per cent.(r) 
 
 A trust to invest on "good freehold security" can only be exe- 
 cuted by an investment of that description. (s) But if the existing 
 securities be unsafe and improper, and an immediate conversion be 
 _. required, it *seems to be the duty of the trustees to make an 
 L -J interim investment in the funds, until a proper purchase of 
 freeholds can be found. (<) 
 
 Where stock is settled in trust for a husband and wife for life with 
 remainder to their children, with power for the trustees "to call in 
 and lay out the money at greater interest, if they could," an in- 
 vestment in the purchase of an annuity for the life of one of the 
 tenants for life is improper.(M) 
 
 A trust to invest on "government securities" has been held not to 
 authorize an investment in Exchequer bills.{x) 
 
 Where trustees are directed by will to invest a sum of money 
 "with all convenient speed" in the purchase of land, it has been 
 
 (m) Boss V. Godsall, 1 N. C. C. 617. (r) Westoveni. Chapman, 1 Coll. 177. 
 
 [See Fowler v. Reynal, 13 Jur. 654.] («) Wyatt v. Willis, 8 Jurist, 117. [1 
 
 (n) See Burt v. Ingram, Lewin, Trust, Cooper, 154 (n.)] 
 
 277. (0 Sowerby v. Clayton, 8 Jurist, 597; 
 
 (o) Cocker v. Quayle, 1 R. & M. 535; 3 Hare, 430. 
 
 see Kellaway u. Johnson, 5 Beav. 319. (u) Fitzgeneral v. Pringle, 2 Moll. 
 
 (p) Hopkins v. Miall, 2 R. & M. 86. 534. 
 
 (g) Bateman v. Davis, 3 Mad. 98; {x) Ex parte Chaplin, 3 Y.&C. 396. 
 
 see Adams D. Broke, IN.C. C.627. [Knott v. Cottee, 13 Eng. L. & Eq. 
 
 311.] 
 
/ / 
 
 OF INVESTMENT BY TRUSTEES. 525 
 
 held, that twelve months from the testator's death is to be considered 
 a reasonable time for making the purchase, (y) 
 
 By the act 4 & 5 Will. IV. c. 29, which is also retrospective in its 
 operation, where any will or settlement contains a power to invest on 
 real securities in England, or Wales, or Great Britain, or on real se- 
 curities generally, the power may be exercised by investing on real 
 security in Ireland. But the 2d section provides, that where the 
 interest of any infant, or person of unsound mind, is concerned, all 
 investments under the act are to be made by the direction of the 
 Court of Chancery in England. It has been decided, that the ap- 
 plication to the court for this purpose may be made either in a cause, 
 or by petition without suit in a summary way.(2) But where a trust 
 fund, which is settled on a party for life, with remainders over, is 
 already in court and invested in the three per cents., the court will 
 not, on the petition of the equitable tenant for life presented under 
 this act, order it to be sold out, and invested on Irish real securities, 
 producing a larger income. For such a course, though for the ad- 
 vantage of the tenant for life, is not necessarily for the benefit of the 
 parties entitled in remainder. And the court will not even direct 
 a reference to the Master to- inquire into the expediency of such a 
 proceeding. (a) This case is therefore an authority for laying it down, 
 that under similar circumstances a trustee, notwithstanding the act, 
 would not be justified in disposing of the securities on which the 
 trust funds may be properly invested, in order to lay out the money 
 on Irish real securities, although a larger income might thus be 
 realized. 
 
 A neglect to make proper investments is a breach of trust, the 
 consequences of which will be visited on the trustees. And if they 
 unnecessarily retain cash balances in their hands, or otherwise, with- 
 out sufficient reason, allow any part of the trust funds to remain un- 
 productive, they will be personally answerable to their cestuis que 
 trusts for any loss of income or capital that may be traced to that 
 source.' 
 
 Thus, if a trustee, who is directed to invest a legacy immediately 
 in stock, retain it for a considerable period in his own hands, and 
 there is a subsequent rise in the price of the stock, the loss will fall 
 upon him, and he will be decreed to purchase as much stock as might 
 
 {y) Parry v. Warrington, 6 Mad. 155. this Act, Kirkpatrick's Trust, 6 Eng. L. 
 {z) Ex parte French, 7 Sim. 510; see & Eq. 152.] 
 Stuart V. Stuart, 3 Beav. 430. [See on (a) Stuart v. Stuart, 3 Beav. 430. 
 
 I See post, 3J4, n. 1, where the American cases cited on the question of in- 
 terest, are in general equal authorities for holding the trustee liable in case of a 
 loss under the same circumstances. See also Harrison v. Mock, 10 Alab. 193. 
 
526 OF INVESTMENT BY TRUSTEES. 
 
 r^oTi-i have been bought *mth the trust fund, at the time when 
 it ought have been invested.(e) And the same riile applies 
 to an executor, who by his conduct has become a trustee for the in- 
 vestment of a legacy, (ci) 
 
 It was decided on one occasion by Sir J. Leach, V. C, that where 
 the trustees are directed to invest in the alternative, either in stock 
 or on real security, and the fund is lost through their neglect in mak- 
 ing a proper investment, the trustees shall be answerable for the prin- 
 cipal money only, and not for the value of the stock, that might have 
 been purchased : for if real security had been taken, as it might have 
 been, the principal money only would have been forthcoming to the 
 trust.(e) But in a subsequent case where there was a similar trust, 
 Lord Gilford, M. R., after some hesitation held the trustees liable for 
 the amount of stock, which might have been purchased, notwithstand- 
 ing the alternative discretion given to the trustees. (/) And this last 
 decision was followed by Lord Langdale, M. R., in a very recent 
 case.(^) So that the distinction taken by Sir J. Leach, in Marsh v. 
 Hunter, must now be considered as overruled.(l) 
 
 (c) Byrchall v. Bradford, 6 Mad. 235, (e) Marsh v. Hunter, 6 Mad. 295. 
 240; and see Pride v. Fooks, 2 Beav. [Affirmed Robinson v. Robinson, 9 
 430 ; Walts v. Girdlestone, 6 Beav. 188 ; Engl. L. & Eq. 67.] 
 Clough V. Bond, 3 M. & Cr. 496. [Phil- (/) Hockley v. Bantock, 1 Russ. 141. 
 lipson V. Gatty, 7 Hare, 516; see Bank of (g-) Watts «. Girdlestone, 6 Beav. 188. 
 Virginia v. Craig, 6 Leigh, 399 ; Robin- [These cases, hovpever, are now over- 
 son V. Robinson, 9 Eng. L. &Eq. 69.] ruled, 9 Engl. L. & Eq. 69, see post] 
 
 ((/) Ibid. 
 
 (1) But the doctrine of this case (Marsh v. Hunter) has been revived in Eng- 
 land, in a case still more recent than any cited in the text. For, vrhere trustees 
 were directed to invest trust-money in such stocks, funds, or securities, as to 
 them should seem reasonable, and they did not invest the money, but allowed 
 it to remain in the hands, and upon the personal security, of one of themselves, 
 who afterwards became bankrupt, it was held, that they were answerable for the 
 money only, and not for the stock which might have been purchased therevrith. 
 (Shepherd v. Mouls, June 7, 1845, Jurist, No. 441, p. 506), [4 Hare, 580], before 
 Vice Chancellor Wigrara, whose opinion was delivered as follows: — Sir James 
 WiGRAM, V. C. — "In this case, certain property was given to trustees, upon trust 
 to lay it out in the purchase of government or real securities. The trustees did 
 not lay out the property in either, but kept the money in their hands; and the 
 only question I have to consider is, whether the trustees are to be charged vrith 
 the amount of money and interest, or whether the parties interested in the fund 
 have a right to charge them with the amount of slock which might have been 
 purchased at the time, when the money was in their hands for that purpose. 
 Where trustees are bound by the terms of their trust to invest the money in the 
 funds, and instead of doing so, retain the money in their hands, the cestui qus 
 trusts may elect to charge them either with the amount of money, or with the 
 amount of stock which they might have purchased. If the trustees are not bound 
 to invest in the funds or in any specific security, but, by the terras of the trust, 
 have a discretion to invest it in various ways, and, instead of doing so, they re- 
 
OF INVESTMENT BY TRUSTEES. 527 
 
 *In like manner if the principal be lost by the failure of r*3y2-] 
 the banker, or ,other person, in whose hands the trustees have 
 
 tain the money in their hands, if the'cestui que trusts are desirous not to take the 
 money, but to charge the trustees with the value of the security that might have 
 been obtained, the court is placed in a difficulty. The discretion given to the 
 trustees to elect between several securities makes it impossible to ascertain the 
 amount of loss occasioned by the omission to invest, except in the possible case, 
 which has not occurred here, of some one offering a security in conformity with 
 the terms of the trust. Suppose the trust to have been to invest in the funds or 
 in the purchase of lands, there would then be no belter reason for saying that the 
 trustees ought to have made the investment in the funds, than for saying that 
 they ought to have invested in the purchase of lands. In the case before me, I 
 see no more reason for saying that the trustees were bound to invest in the fundsj 
 unless a real security had presented itself, than for saying that they vrere bound 
 to invest in real estate, unless a security in stock had offered itself The breach 
 of trust is not in having omitted to choose the one rather than the other, but in 
 not having made an investment at all, either in the one or the other of those se- 
 curities. ' That was the opinion of Sir John Leach, in the case of Marsh v. Hun- 
 ter, 6 Madd. 295. Lord Gifford, however, in the case of Hockley v. Bantock, 
 1 Russ. 141, decided otherwise. In the latter of these cases, the former was 
 not cited; and, judging from the great hesitation with which the court made the 
 order, it appears probable, that, had the case of Marsh v. Hunter been cited, the 
 decision would have been different. In Watts v. Girdlestone, 6 Beav. 188, the 
 same question came before Lord Langdale, whose decision was in accordance 
 with that in Hockley v. Bantock. My own strong impression is in favor of the 
 view taken in Marsh v. Hunter. The trustee is to invest in a fair security only, 
 and on what principle can the court charge the trustee with the accidental im- 
 provement in value of one of several securities, where he is not bound, in the 
 execution of his trust to select that particular security rather than another 1 It is 
 extremely to be regretted, that there should be a difference of opinion in the de- 
 cisions upon a point like this, and I desired that the case might stand over, in 
 order to see whether I could find a judge decidedly of opinion one way or the 
 other upon the point. Having failed in doing so, I am compelled to exercise my 
 own judgment, which is, that I cannot do otherwise than think, that the case of 
 Marsh v. Hunter is right." 
 
 A writer in a subsequent number of the Jurist (No. 443, p. 227), in a review 
 of the conflicting decisions existing upon the question discussed in the foregoing 
 judgment, after stating the question at length, thus remarks ; — Upon this the au- 
 thority now stands thus : — 
 
 "That the trustees are liable at ( Hockley v. Bantock, 1 Russ. 141. 
 the option of the cestui que ImeSt, \ Watts v. Girdlestone, 6 Beav. 188. 
 
 " That they are not so liable, but \ ^^'''^ "" H^^'^""' ^ ^^^'^- 2^^- 
 only to pay principal and interest, ) Shepherd v. Mouls, Jurist, No. 441, 
 ■' ^ ■' '^ ' ' ( p. 506. [4 Hare, 580.]" 
 
 The point is, as nearly as possible, the same in all these cases, so that it is as 
 fair and decided a conflict of authority as could well be imagined, and a much 
 more complete one than is to be desired. We are, therefore, in considering this 
 question, thrown back upon principle. 
 
 Now, let us see what is the principle to be collected from the general stream 
 of authorities bearing upon the liabilities of trustees. There is not, we submit, 
 any such priticiple, as that trustees having done wrong, either by doing that 
 
528 OF INVESTMENT BY TRUSTEES, 
 
 unnecessarily allowed it to remain, they will be liable to make good 
 the amount. (A) 
 
 (h) Anon. Lofft. 492; Challen v. Ship- v. ,CockerelI, ib. 339 ; Mathews v. Brise 
 
 pam, 4 Hare, 555 ; Fletcher v. Walker, 6 Beav. 239 ; Macdonnell v. Hardino- 7 
 
 3 Mad. 73 ; Massey. ?J. Banner, 4 Mad. Sim. 178. [Drever v. Mawdesley, 13 
 
 419; Moyle v. Moyle, 2 R. &M. 701 ; Jur. 331. But see Johnston v. Newton 
 
 Lowry ^.Fulton, 9 Sim. 115; Munch 17 Jurist, 825.] 
 
 which they ought not to have done, or omitting to do that which they ought to 
 have done, are to be punished by the court, except by costs. The principle is', 
 that trustees are to hold the trust fund for the benefit of the cestui que trust, deal- 
 ing with it only as they are directed or permitted to deal with it by the instru- 
 ment of trust; or, if there be no directions contained in such instrument, then 
 according to certain known rules prescribed by the court. It follows as one con- 
 sequence of this principle, that, if they waste the fund, they are to account to the 
 cestui que trust, as if they had done with it what they ought to have done, or. if 
 the result of such an account cannot be ascertained, then they are to account for 
 the principal and interest, which is what, in the absence of information to the 
 contrary, is the produce of the fund. It follows, as a second consequence of the 
 principle above stated, that whatever trustees have actually made with the trust 
 fund, ihey shall account for so much to the cestui que trust; for, as they hold 
 the fund for him, they must also hold for him all its accretions, which are, in 
 fact, part of itself. And it is their own folly, if they choose to employ their owa 
 labor in making the trust fund grow beyond the extent to which it was their 
 mere duty to extend it. 
 
 There are cases upon cases which, show that the court has not generally en- 
 tertained any notion of punishing trustees for breach of trust, by exacting from 
 them more than a full account of the trust fund, subject to, and consistent with, 
 the powers and discretion confided to them. But we select one only as peculiarly 
 supporting our proposition, because, in that case, it is quite obvious, from the 
 strong language used by the judge, that he would have treated the trustees as fit 
 subjects for punishment, if he had felt that, judicially, he was at liberty to pun- 
 ish them. The case to which we refer is Pocock v. Eeddington, 5 Ves. 794, 
 one of the early cases upon the question of what interest a trustee shall be charged 
 with. The trustee in that case had most improperly lent the trust money upon 
 personal security, and the Master of the Rolls disapproving in very strong lan- 
 guage of his conduct, still in decreeing against him, did not put the decree on 
 any ground of punishing the trustees, but simply treated him as liable to answer 
 for what he might reasonably be supposed to have inade; and if he had made more, 
 for that also.' 
 
 The innumerable cases, indeed, upon breaches of trust by executors and trus- 
 tees, all appear to proceed upon the ground of the trustee's tide being purely 
 representative, so that he must, when called upon, produce the fund, with such 
 accretions as it has actually acquired in his hands, or such accretions as it may 
 reasonably be presumed to have acquired. And until Hockley v. Bantock, there 
 is, we believe, no case in which an attempt has been made to punish a trustee, 
 by depriving him of the discretionary powers reposed in him by the settlor, and 
 holding him liable to account as if he had been specifically directed to do that 
 
 (1) This case may, perhaps, be referred to, as in some measure supporting Shepherd «. Mouls. The 
 trust for investment was to place the funds out at interest at their (the trustees') discretum. The 
 Master of the Rolls of course did not hold this language as justifying an investment on mere personal 
 security. But he appears to have thought (dubitando it is true), that it might have justified an invest- 
 metit on real security; and, if so, the case was of the same class as those we are considering, as the 
 power was, in that Tiew of the case, in effect, to invest in the funds or on real security. 
 
OF INVESTMENT BY TRUSTEES. 529 
 
 And it is no answer to a charge of this description to say, that the 
 fund *has been retained or misapplied by one or more of r*373-| 
 the co-trustees, if the others have been cognizant of or in any 
 
 which, in the result, turns out most to the advantage of the cestui que trust; in 
 fact, to vary the trusts of the instrument of trust, for the purpose of punishing the 
 trustee. For that is the effect of the rule adopted in Hockley v. Bantock and 
 Watts V. Girdlestone. The testator in the first case, and the settlor in the second, 
 had given to the trustees a power of selection between two funds; the result of 
 the decision in each of those cases is to determine that the trustee, by reason of 
 his misconduct, should be held accountable not as if he had had a power of se- 
 lection, but as if he had been specifically confined to a particular investment ; 
 it charged him not pursuant to the instrument, but in derogation of it. The cases 
 of breach of trust by embarking the fund in unauthorized speculations, whether 
 intended dishonestly for the personal advantage of the trustee, or honestly for the 
 benefit of the cestui que trust, obviously afford no support to Hockley v. Ban- 
 tock; those being invariably cases in which the question has not been, which 
 of two modes of investment originally open to the trustee shall be taken as the 
 groundwork on which to found the calculations of his accounts, the fund being 
 in fact wasted; but, whether the trustee, having improperly employed, but for- 
 tunately increased, the fund, shall be caused to deliver up what the fund has ac- 
 tually produced, or to pay what it would have produced if treated according to 
 the only course which was originally regular. The two classes of cases are to- 
 tally and visibly distinct. The decisions in Hockley v. Bantock and Watts v. 
 Girdlestone assert, in fact, not the old jurisdiction, of holding a trustee to produce 
 the fund, such as it is, or such as if he had acted regularly, it would have been, 
 but the much stronger one, of deciding for him, because of, and in punishment 
 of, his misconduct, how he ought to have exercised that discretion, which it is 
 clear, but for the misconduct, the court could not have interfered with. They do 
 not pursue the rule of equity, of holding a man to have done that which he ought 
 to have done, but determine for him what, in the exercise of a discretion unfet- 
 tered by the terms of the instrument, he ought to have done. We confess, this 
 does appear to us to be carrying the equitable control of the court a great way; 
 it goes, in truth, the length of altering the trusts declared by the founder of the 
 trust. And with this impression we certainly are glad to see the case of Shep- 
 herd V. Mouls bringing back the rule (so far as in the conflicting state of the 
 specific authorities there can be said now to be a rule), to the doctrine of Marsh 
 V. Hunter; a doctrine, consistent, as we humbly contend, with general princi- 
 ples, and not inconsistent with the reasonable protection oicestuis que trustent." — T. 
 [The conflict of authorities on this subject has been recently terminated in Eng- 
 land by the case of Robinson v. Robinson, 9 Engl. L. & Eq. 69, before the Lords 
 Justices of Appeal, where it was held, overruling S. C. 12 Jur. 969; II Beav. 
 374; Ousley v. Anstruther, 10 Beav. 456; Watts v. Girdlestone, and the other 
 cases cited above, and on full consideration of the authorities, that, where trus- 
 tees had an option to invest either in the three per cents, or on real security, which 
 they neglected to do, the cestui que trust could only charge them with the princi- 
 pal and interest, and could not claim the amount of the three per cents. ; and see 
 Phillipson ^.Gattey, 13 Jur. 318; Rees'U. Williams, 1 DeG. &Sm.314. However, 
 ^writer in the English Jurist (17 Jur. p. ii. 199) argues very strenuously against 
 the decision in this case. He insists that the reasoning on which it is founded 
 is fallacious; and submits that "the doctrine of Robinson v. Robinson, cannot be 
 safely relied upon, until it is affirmed in the House of Lords. It is contrary to 
 the severe, but salutary rules by which the Court of Chancery determines the 
 
 34 
 
530 OP INVESTMENT BY TRUSTEES. 
 
 way accessory to the exclusive possession of the trust fund by the 
 trustees who have occasioned the loss.(i) 
 
 And where the money is paid by the trustee to a banker or broker 
 
 for the purpose of being invested, it is the trustee's duty to ascertain 
 
 „ that the *investment is duly made, and he will be answer- 
 
 ■- J able to the cestui que trusts, if the fund be lost through his 
 
 neglect of that duty.(A;)^ 
 
 And in these cases the trustees will in general be decreed fcq 
 account for the principal, which has been retained unproductive, or 
 lost, with interest. (Z) And interest in these cases is generally given 
 at four per cent. ;(m) but if there be also crassa negligentia on the 
 part of the trustees, or they be guilty of an active breach of trust, 
 as by employing the trust-moneys for their own benefit, or by other 
 acts of misfeasance, interest at five per cent, will be charged.(?i) But 
 mere ordinary negligence will not be a sufiicient reason for charging 
 a trustee with the interest at five per cent.(o)^ 
 
 (i) Lincoln v. Wright, 4 Beav. 427 ; Firth, Id. 433 ; Younge v. Combe, 4 
 Meyer v. Montriou, 5 Beav. 146; Over- Ves. 101 ; Longmore v. Broom, 7 Ves. 
 ton V. Banister, V. C. Wigram, [3 Hare, 124 ; Roche v. Hart, 1 1 Ves. 58 ; Daw- 
 503] ; Hewett v. Foster, 6 Beav. 259 ; son v. Massey, 1 Ball & B. 231; Trim- 
 Chambers ■«. Minchin, 7 Ves. 186 ; Lord mleston v. Hammil, Id. 385; TebbsD. 
 Shipbrook v. Lord Hinchinbrook, 1 1 Carpenter, 1 Mad. 290 : Mousley v. 
 Ves. 252; Brice ■!). Stokes, Id. 319; Carr, 4 Beav. 49 ; Hosking v. Nicholls, 
 Walker v. Symonds, 3 Sw. 1 ; Langford 1 N. C. C. 478. 
 V. Gascoigne, Id. 333; Underwood v. (n) Treves v. Townshend, 1 Bro. C. 
 Stephens, 1 Mer. 712; Booth v. Booth, C. 384; Forbes ti. Ross, 2 Bro. C.C.430; 
 1 Beav. 125; Williams v. Nixon, 2 Piety v. Stace, 4 Ves. 620; Pocook ». 
 Beav. 472 ; Broadhurst v. Balguy, 1 N. Reddington, 5 Ves. 794 ; Roche v. Hatt, 
 C. C. 16; Ante, Ch. I. Sect. 2 of this 11 Ves. 60; Dornford v. Dornford, 12 
 Division, page 309 and notes. Ves. 127; Ashburnham v. Thompson, 
 
 (i) Challen v. Shipham [4 Hare, 13 Ves. 402; Bate v. Scales, 12 Ves. 
 
 555.] 402 ; Crockelt v. Bethune, 1 J. & W. 
 
 Q) Fletcher ti. Walker, 3 Mad. 73; 586; Heathcote ?;.Hulme, Id. 122; Alt- 
 Underwood V. Stevens, 1 Mer. 712; Gen. v. Solly, 2 Sim. 518; Brown t). 
 Munch V. Cockerel!, 9 Sim. 339, 351. Sansome, 1 M'Clel. & Y. 427 ; Sutton ». 
 
 (m) Lincoln v. AUeg, 4 Bro. P. C.' Sharp, 1 Russ. 146; Mousley u. Carr, 4 
 
 553; Hicks w. Hicks, 3 Alk. 274; Per- Beav. 49; Westover v. Chapman, 1 
 
 kins V. Baynton, 1 Bro. C. C. 375; New- Coll. 177. 
 
 ton V. Benett, Id. 359 ; Littletales v. Gas- (o) Roche v. Hart, 1 1 Ves. 58. 
 cbigne, 3 Bro. C. C. 73; Franklin v. 
 
 responsibility of trustees ; and it is contrary, we submit, also, to the established 
 principles of Equity."] 
 
 ' So where trustees sold out stock, and handed over the proceeds to their 
 solicitor for reinvestment, who misapplied the money, they were held liable. 
 Rowland v. Witherden, 11 Engl. L. & Eq. 131; see, also, to the same effect. 
 Ghost V. Waller, 9 Beav. 497. 
 
 2 In Robinson v. Robinson, 9 Engl. L. & Eq. 70, where this subject was fully 
 discussed, the following propositions were laid down, on a review of the authori" 
 
OF INVESTMENT BY TRUSTEES. 531 
 
 Where a very strong case of corruption or improper conduct is 
 established against the trustees, and there is an express direction in 
 
 ties: "First, where trustees improperly retain balances, or cause or permit trust- 
 money to be lost, they are chargeable with the same, with interest at four per 
 cent. (See, also, Jones v. Foxhall, 13 Engl. L, & Eq. 144 ; Knott v. Cottee, Id. 
 311.) Secondly, where trustees have money in their hands which they are bound 
 permanently to invest for the benefit of their cestui que trust, the rule of the court 
 is generally, that they shall invest in three per cents.; therefore, if they neglect 
 to do so, and there is no express direction not to do so, or there is an express 
 trust that they shall do so, in the latter case, and it seems in the two former, it 
 is in the option of the cestui que trust to charge them either with the principal sum 
 retained, and interest, or with the amount of three per cents., which would have 
 been purchased, had the investment been made. Thirdly, where trustees lend 
 or use trust-money on trade, they are chargeable not only with the money and 
 interest, but with the profits made in the trade, the interest generally being at 
 five per cent." (See Williams v. Powell, 10 Engl. L. & Eq. 233 : Jones u. Foxhall, 
 13 Id. 144.) This case is understood to have settled the law of the Court of 
 Chancery on the subject, see Knott v. Cottee, 13 Engl. L. & Eq. 311. See, also, 
 with regard to interest on balances, Jones v. Morrall. 2 Sim. N. S. 241. 
 
 On the subject of compound interest, or annual rests, nothing is said in Robin- 
 son V. Robinson, but it is to be presumed that the usual rule was not intended to 
 be afiected. In Jones v. Foxhall, 13 Engl. L. & Eq. 142, the Master of the Rolls 
 uses the following language : "Generally, it may be stated, that if an executor 
 has retained balances in his hands which he ought to have invested, the court 
 will charge him with simple interest at four per cent, on these balances. If, in 
 addition to this, he has committed .a direct breach of trust, or if the fund has 
 been taken by him from a proper state of investment, in which it was producing 
 five per cent., he will be charged with interest after the rate of five per cent, per 
 annum. If, in addition to this, he has employed the money so obtained by him 
 in trade or speculation, for his own benefit and advantage, he will be charged 
 either with the profits actually obtained by him from the use of the money, or 
 with interest at five per cent, per annum, and also with yearly rests, that is, with 
 compound interest." . . : . "The principle upon which executors and trnstees, 
 when charged with interest on balances, are made to account with yearly or 
 half-yearly rests, is not so clearly defined, nor are the decided cases by any 
 means free from obscurity or contradiction. In some cases the court has charged 
 the trustee with annual rests, because the trusts under which he acted, in distinct 
 terms required him to accumulate the fund with compound interest. In other 
 cases the principle seems to have been, that the court visits the trustee or the exe- 
 cutor with an account in the natureof a penalty for his misconduct, where he has 
 not merely committed a breach of trust, but where he has himself actually en- 
 deavored to derive, or has, in fact, derived some pecuniary advantage from the 
 use of the money of which he has thus obtained possession. In all these cases, 
 however, a large discretion seems to have been exercised by the court, which 
 has regarded the facts and circumstances attending each particular case; and 'it 
 is to the exercise of this discretion, that the difficulty of discovering the principle 
 in some of the reported cases is to be attributed, and it is only upon this principle 
 that the latter cases, in which the rule has been drawn more stringently against 
 the trustee, can be reconciled with some of the earlier cases." Accordingly, in 
 that case a trustee of a marriage settlement, whose duty it was to have got in a 
 sum of £350 trust-money, invested in a, trading firm of which he was a partner, 
 and to reinvest it in consols on the death of the tenant for life, hut which he 
 
532 OF INVESTMENT BY TRUSTEES. 
 
 the trust instrument to accumulate the income, the account will be 
 directed to be taken with annual or half-yearly rests, so as to charge 
 
 suffered to remain in tiie firm for a period exceeding fifteen years after that time 
 though he eventually paid the principal with five per cent, interest, was held 
 liable to account with annual rests. It is to be remarked, that had the money 
 been properly invested, it would have probably produced compound interest, as 
 the dividends would have been reinvested. In Williams v. Powell, 10 Engl. L. 
 & Eq. 225, it was held that where an executor having ample funds in his hands, 
 and there being no excuse for retaining the money, instead of paying legacies 
 (the time for distribution having arrived), and dividing the residue amoiig the 
 residuary legatees, retains the money in his own hands, he is guiKy of a breach 
 of trust, and will be charged five percent, on the money retained; and if he pays 
 the money into his banker's, and mixes it with his own money, he will be con- 
 sidered to have had the same benefit in respect of if, as if he had embarked it 
 in trade, and will be charged with annual rests on the balance in his hands; 
 and the burden lies on him to show that he has derived no benefit from the 
 balance thus in his hands. But in Knott v. Cottee, 13 Engl. L. & Eq. 311, where 
 it did not appear that a trustee, who had made improper investments, bad bene- 
 fited himself thereby, or used the money in trade, only four per cent, was given; 
 but as there had been there an express direction to accumulate surplus income, 
 which the trustee had neglected to do, annual rests were allowed. 
 
 It is well settled in the United States, that where an executor, guardian, or other 
 trustee, mingles the trust fund with his own, (Mumford v. Murray, 6 J. C. R. 1; 
 Beverly v. Miller, 6 Mumford, 99; Diffenderfer v. Winder, 3 G. & J. 341 ; Jacottu. 
 Emmett, 11 Paige, 142; Kellet v. Rathbun,4 Paige, 102; De Peystera Clarkson, 
 2 Wend. 77; Garniss v. Gardner, 1 Edw. Ch. 128; Spear v. Tinkham, 2 Barb. 
 Ch. 211 ; Peyton v. Smith, 2 Dev. & Batt. Eq. 325; Jameson v. Shelly, 2 Humph. 
 198; Dyott's Est., 2 W. & S. 565; Merrick's Est., 2 Ashm. 305; In re Thorp, 
 Daveis' fiep. 290) ; or uses it in his private business (Ibid. ; Miller v. Beverly, 4 
 Henn. & M. 415; Manning v. Manning, 1 J. C. R. 555: Brown i;. Kicketts, 4 J. 
 C. R. 303; In re Thorp, Daveis, 290) ; or neglects to invest, where it is his duty 
 to do so (Lomax v. Pendleton, 3 Call, 538; Schieffelin v. Stewart, 1 J. C. K. 620; 
 Garniss v. Gardner, 1 Edw. Ch. 128; Williamson v. Williamson, 6 Paige, 298; 
 Dunscombe v. Dunscombe, 1 J. C. R. 588; Chase v. Lockerman, 11 G.& J. 185; 
 Armstrong v. Miller, 6 Hammond, 118; Aston's Est., 5 Wh. 228; Handly v'. 
 Snodgrass, 9 Leigh, 184; In re Thorp, Daveis, 290), though he is entitled to a 
 reasonable time, at first, to seek investments (Dillard v. Tomlinson, 1 Munf 
 183 ; Minuse v. Cox, 5 J. C. R. 448 ; Carter v. Cutting, 5 Munf 223 ; Ringgold v. 
 Ringgold, 1 H. & G. 11), for which purpose six months have been considered 
 proper (Dunscombe v. Dunscombe, 1 J. C. R. 588 ; Ringgold v. Ringgold, 1 H. & 
 G. 1 1 ; Merrick'sEst., 2 Ashm. 305 ; see Arthur v. Master in Eq., 1 Harp. Eq. 471 ; 
 iu Cogswell V. Cogswell, 2 Edw. Ch. 231, however, a year from testator's death 
 was given to make an investment directed in U. S. Bank stock)'; or the trustee 
 invests in unproductive property (Ringgold v. Wilmer, ut supra) ; or neglects to 
 settle his account for a long period (Lyle v. Hatton, 6 G. & J. 122; Tumey v. 
 Williams, 7 Yerg. 172), or to distribute where necessary (Gray v. Thompson, 1 
 J. C. R. 82; Williams v. Powell, 10 Engl. L. & Eq. 224) : he is liable to interest. 
 In Rapalje v. Nosworthy, 1 Sandf Ch. 399, however, it was held that the trostee 
 is not thus liable, merely because he deposits trust-money in his own name, or 
 uses it; there must be a breach of trust, or neglect to invest when required. 
 In settling the account against a trustee, the general rule is to give interest on the 
 annual balances in his hands, though not so as to compound it. Rowland v. 
 
OF INVESTMENT BY TRUSTEES. 533 
 
 them with compound interest,(^) or an inquiry will be directed as to 
 what would have been the amount of the accumulation, so as to 
 charge them with that amount.(g') 
 
 It has been held, that if a trustee, being a trader, keep trust- 
 moneys in his own name idle at his banker's, that is tantamount to 
 
 (;)) Stacpoole v. Stacpoole, 4 Dow. Russ. 107; Doinford v. Domford, 12 
 
 209. [See the remarks on this case of Ves. 127 ; Brown v. Sansome, 1 M'Clel. 
 
 the M. R. in 13 Engl. L. & Eq. 310.] &Y. 427. 
 
 Brown v. Southouse, 3 Bro. C. C. 107; (g) Brown v. Sansome, 1 M'Clel. & 
 
 Raphael v. Boehra, 11 Ves. 92, 13 Ves. Y. 427. 
 407, 590; Walker v. Woodward, 1 
 
 Best, 2 McCord's Ch. 317; Jordan v. Hunt, 2 Hill's Eq. 145; Walker i). Byrnam, 
 4 Desaus. 555; Campbell v. Williamson, 3 Monr. 122; Jones v. Ward, 10 Yerg. 
 160: Sheppard v. Stark, 3 Munf. 29; Harwell v. Anderson, 3 Leigh, 348; Garrett 
 V. Carr, Id. 407 ; though see Powell v. Powell, 10 Alab. 900. But there may be 
 circumstances where interest will only be allowed on accumulated balances, as 
 ■where the annual balances are too small to have been set at interest. Rapalje v. 
 Nosworthy, 1 Sandf. Ch. 399 ; Woods v. Garnett, 6 Leigh, 271. Where the money 
 is paid into court by the trustee, there interest ceases of course. January v. 
 Poyntz, 2 B. Monr. 404. But during exceptions to an auditor's report on an exe- 
 cutor's account, the latter is bound to keep the fund at interest, and is liable 
 therefor. Yundt's Appeal, 15 Penn. St. R. 575. 
 
 In cases of gross misconduct, as the employment of the funds by the trustee 
 in his own business, and a refusal to account for the profits, or of wilful omission 
 to accumulate, according to several cases, or dicta, in this country, compound 
 interest may be allowed. Schieffelin v. Stewart, 1 J. C. R. 620; Garniss v. 
 Gardner, 1 Edw. Ch. 128; Vanderheyden ?;. Vanderheyden, 2 Paige, 287; Acker- 
 man V. Emott, 4 Barb. S. C. 626 ; Utica Ins. Co. v. Lynch, 11 Paige, 520; Latimer 
 V. Harrison, I Bland, 58 ; DifFenderfer v. Winder, 3 G. & J. 341 ; Wright v. Wright, 
 2 McCord's Ch. 185; Robbins v. Robbins, 1 Pick. 528, note; Hodge u. Hawkins, 
 2 Dev. & Batt. 566; Greening ij. Fox, 12 B. Monr. 190; Karr v. Karr, 6 Dana,,3, 
 (where biennial rests were thought proper)'; Clemens v. Caldwell, 7 B. Moiir. 
 171 ; Harland's Accounts, 5 Rawle, 329; Lukens' App., 7 W. & S. 48 ; 2 Kent 
 231, n. In Utica Ins. Co. v. Lynch, 11 Paige, 524, it was said that the principle 
 was to allow the cestui que trust to elect between simple interest and the profits • 
 and that rests in compound interest was only a convenient mode adopted by the 
 court to charge the trustee with the profits supposed to have been made by him 
 in the use of the money. In Garrelt v. Carr, 1 Rob. Va. 196, it was held, that 
 under the Virginia statute with regard to guardians, they were liable to compound 
 interest; but as to executors, it is different. Burrell v. Anderson, 3 Leigh, 348. In 
 Ker's Adm. v. Snead, 11 Bost.L. Rep. 217 (in the Circuit Superior Court of Ac- 
 comao County, Virginia), this subject was very learnedly discussed, and the con- 
 clusion arrived at is, that except in cases of a provision for accumulation, a 
 trustee will not be charged with compound interest, though he has mingled the 
 trust fund with his own. The doctrine as laid down by Chancellor Kent, ut 
 supra, and Judge Story, Eq. Jurisp. § 1277, was considered too broad. There are 
 certainly strong reasons for hesitating in the application of a principle so stringent 
 and dangerous; and even in Pennsylvania, notwithstanding its powerful vindica- 
 tion in the case of Harland's Accounts, the question was treated as a still open 
 one in Dietterich v. Heft, 5 Barr, 91. See McCall's Est., 1 Ashm. 357 ; and Bryant 
 V. Craig, 12 Alab. 354. 
 
534 OF INVESTMENT BY TRUSTEES. 
 
 employing it for his own benefit, as he must generally keep a balance 
 to answer the purpose of his credit. Under such circumstances, 
 therefore, he would be charged with five per cent. interest.(r) 
 
 Where the trust funds have been embarked by the trustees in any 
 trade or speculation, it will be at the option of the cestui que trmtto 
 have them charged with interest at five per cent., or to take the 
 profits actually made, to ascertain which an inquiry will be di- 
 rected. (s) But in such case the cestui que trust must elect to take 
 either the profits for the whole period, or interest for the whole period; 
 and without special circumstances he cannot have the interest for 
 one part of the time, and the profits for the other.(i) ^ 
 
 However, trustees will not always be charged with interest on the 
 amount of a trust fund, which has been lost through their neglect of 
 investment. And interest has been refused, where the error has 
 been through *ignorance and without any improper mo- 
 L -■ tive ;(m) or where the amount of the principal sums has been 
 comparatively small; (a;) and the staleness of the demand is another 
 reason for refusing interest. ( y) 
 
 And so if a trustee retain a money balance in his hands, having 
 reasonable grounds for supposing that he was entitled to do so, and 
 if he fairly state that claim in bringing in his accounts, he will not 
 be decreed to pay interest, although the court decide against his 
 claim, and order the principal into court, (a) But the question of in- 
 terest will be further considered in a future place.(a) 
 
 It is diflSeult to lay down any general rule as to the amount of the 
 balances which a trustee cannot allow to remain unproductive with- 
 out incurring the consequences of a breach of trust. Where any 
 payments are to be made, or liabilities to be provided for, the trus- 
 tees will unquestionably be justified in retaining a sufiicient fund to 
 answer those purposes. But otherwise the whole of the ready money 
 ought doubtless to be invested. 
 
 In Moyle v. Moyle, the sum of 2601. was not considered too much 
 for executors to retain within a year after the testator's death. But 
 when it was urged, in argument, that such a sum was not too much to 
 
 (r) Ex parte Hilliard, 1 Ves. jun. 89; (u) Bruere v. Pemberton, 12 Ves. 
 
 Roche V. Hart, 11 Ves. 61; and see 386 ; Massey i). Banner, 4 Mad. 419. 
 this subject further considered, post, (a;) Bone v. Cooke, 13 Price, 343; 
 
 p. 518 [Remedies for Breach of Trust.] S. C. 1 M'Clel. 168. 
 
 (s) See Docker v. Somes, 2 M. & K. {y) Merry v. Ryves, 1 Ed. 1. 
 655, where the authorities are collected (2) Bruere v. Pemberton, 12 Ves. 386 
 
 and examined by Lord Brougham in see Parrott v. Treby, Free. Ch. 254 
 
 his judgment; Palmer D.Mitchell, 2 M. Boddam v. Ryley, 4 Bro. P. C. 561 
 
 & K. 672, n. Hooker v. Goodwin. 1 Swanst. 485. 
 
 (0 Heathcote v. Hulme, 1 J. & W. (a) See post, p. 522, Div. II. Ch. 1: 
 
 122. Sect. 2. 
 
OP INVESTMENT BY TRUSTEES. 535 
 
 be retained in any event, the court refused to sanction that propo- 
 sition, and held the executors responsible for the loss.(5) 
 
 The consequence of a breach of trust do not apply to such tem- 
 porary deposits of sums in cash, as are necessarily required for the 
 purposes of the trust, such as rents and dividends, or other periodical 
 payments, which are made with reasonable prudence and precaution. 
 Thus where money is deposited with a banker in good credit for re- 
 mittance to the party entitled to receive it ; or such a deposit is made 
 for the purpose of temporary convenience, as pending a negotiation 
 for the change of the trustee :(c) in such cases the trustee will not be 
 liable for the failure of the , party to whom the money has been thus 
 committed.(d) And so where trustees, in performance of their trust, 
 bad contracted to purchase land, and they thereupon sold out stock, 
 and deposited the proceeds at a banker's, the purchase appearing near 
 completion, they were held not to be liable to make good the money 
 in case of the banker's failure. (e) And if the trustees have no dis- 
 cretion as to the mode of investment, but are bound by the trust to 
 lay it out on freehold security, they will not be charged with interest 
 on sums retained and kept idle at a banker's, unless it can be shown 
 that they might have invested it according to the trust. For it is 
 not always possible to find a secure investment of that nature. (/) 
 It was said by Lord Cottenham, in a recent case,(^) that when the 
 loss arises from the dishonesty or failure of any one, to whom the 
 possession of part of the estate has been intrusted, necessity, which 
 includes the ^regular course of business in administering the r*qiTi>-| 
 property, will in equity exonerate the trustee. 
 
 But where a trustee places money in the hands of a banker, he 
 must take care to keep it separate, and not to mix it with his own 
 money in one general account. For in that case, he would be con- 
 sidered to have treated the whole as his own, and would be held liable 
 for interest ;(A) as well as for any loss of the principal occasioned by 
 the banker's insolvency, (i)' 
 
 And if the deposit of the trust fund under such circumstances be 
 
 (6) Moyle v. Moyle, 2 R. & M. 715, (/) Wyatt v. Wallis, 8 Jurist, 117; 
 
 16. [See 17 Jur. 826.] [1 Cooper, 154, n.] 
 
 (c) Addams v. Claxton, 6 Ves. 226. (g-) Clough v. Bond, 3 M. & Cr. 496. 
 
 (i) Knight v. Lord Plymouth, 3 Atk. (A) Ex parte Hilliard, 1 Ves. jun. 89; 
 480; Jones ti. Lewis, 2 Ves. 240; Routh Roche v. Hart, 11 Ves. 61. 
 V. Howell, 3 Ves. 564 ; Belchier v. Par- (i) Wren v. Kirton, 1 1 Ves. 377 ; Mas- 
 sons, Ambl. 219. [See Johnston v. sey v. Banner, 4 Mad. 413; Freeman 
 Newton, 17 Jur. 826.] v. Fairlee, 3 Mer. 39 ; 2 Story, Eq. Jur. 
 
 (e) Freme v. Woods, 1 Taml. 172; } 1270; Maodonnell u. Harding, 7 Sim. 
 
 see Matthews v. Brise, 6 Beav. 239. 178; Fletcher v. Walker, 3 Mad. 73. 
 
 ' Stanley's App. 8 Barr, 431; Royer's App. 11 Penn. St. R. 36; Lukens' App. 
 7 W. & S. 48; Jenkins v. Walter, 8 G. & J. 218. 
 
536 OF INVESTMENT BY TRUSTEES, 
 
 continued for a longer time than is absolutely necessary ; or if it be 
 left under the absolute power and control of the party with whom it 
 is deposited, when the trustee with proper caution might have ren- 
 dered it more secure, he will be held responsible for any loss.^ As 
 where a trustee with power to invest on real security, sold out a sum 
 of trust stock, and, pending the preparation of a mortgage, purchased 
 Exchequer bills, which he left for a twelvemonth in the bands of his 
 broker, who made away with a part of them, and became bankrupt ; 
 it was held by Lord Langdale, M. E., that the trustee had omitted 
 to take due and proper precaution for the protection of the fund, and 
 was, therefore, personally answerable to the cestui que trusts for the 
 loss. And he was accordingly charged with the value of the Ex- 
 chequer bills at the time of the broker's bankruptcy, with interest at 
 four per cent. (A) 
 
 So in a very late case, a mortgage security, on which trust-money 
 had been invested, was paid off by the mortgagee, and the money 
 was paid by the trustee into his bankers in a country town for the 
 purpose of being invested in stock. The trustee took a note from 
 the bankers' clerk, stating the receipt of the money and the purpose 
 to which it was to be applied. The bankers at the time were in un- 
 doubted credit, but about five months afterwards they failed, and it 
 was then discovered that the money had not been invested. The 
 trustee was decreed to replace the amount of the money with in- 
 terest at four per cent, (the cestui que trusts consented to waive 
 their right to have -so much stock as might have been purchased, if 
 the money had been properly invested), and he was also charged with 
 the costs of the suit ; the Vice-Chancellor resting his decision mainly 
 upon the neglect of the trustee in letting so long a period elapse 
 after the payment without ascertaining that the fund had been pro- 
 perly invested. (Z) 
 
 Questions of this nature have more usually occurred upon wills ; 
 however, the same equitable principles apply with equal force to 
 trusts created by deed.(TO) Although there are no directions in the 
 instrument as to the investment of the fund by the trustees, it is 
 equally their duty to invest it ; and they will be personally liable for 
 the neglect of that duty.(w) And the three per cents, are the only 
 security which they can adopt with perfect safety to themselves. 
 
 (i) Matthews v. Brise, 6 Beav. 239. (m) See Trafford v. Boehm, 3 Atk. 
 
 Q) Challen v. Shipham, V. C. Wig- 440; Ryder v. Bickerton, 3 Swanst. 80; 
 
 ram, 20th Jan. 1845, MS. [4 Hare, 555. Bate ij.'Scales, 12 Ves. 402. ' 
 
 See remarks, 17 Jur. 826.] (»i) Lyse v. Kingdom, 1 Coll. 184, 188. 
 
 • Aston's Est., 5 Wharton, 228 ; Drever v. Mawdesley, 13 Jur. 330. In this last 
 case the trustees were held liable, as regards infant cesiuis que trust, even thouga 
 a receiver had been appointed, in a suit for an account. 
 
OF INVESTMENT BY TRUSTEES. 537 
 
 The court itself invariably directs any *fun'ds under its con- r*3Yir"| 
 trol to be invested in the three per cents., and what it would 
 order with a suit, it will equally sanction if done without suit.(o) 
 Therefore, a trustee who has invested in the three per cents., is not 
 liable for loss occasioned by the fluctuations of that fund ;(^) but he 
 is liable for the fluctuations of any unauthorized fund.(g') However, 
 it may be observed, that an investment of trust funds by a trustee in 
 Exchequer bills, pending the preparation of a mortgage, is a justi- 
 fiable and proper step,(r) but not as a proper investment.(s) 
 
 In an early case, Lord Harcourt stated his opinion, that if an ex- 
 ecutor put out money on a real security, where there was no ground 
 at the time to suspect, he was not liable to answer for the loss, though 
 he acted without the indemnity of a decree. (i) However, his Lord- 
 ship admitted, that the point had not been settled ; nor does it ap- 
 pear, that the opinion then expressed has ever been judicially 
 adopted.(l) A trustee, therefore, could not be advised to undertak-e 
 the responsibility of laying out trust-money on real security, where 
 such an investment is not expressly authorized "by the instrument 
 creating the trust.(M) It is clear that where there is an express di- 
 rection to invest in the funds an investment on a mortgage security 
 is improper.(a;) And it is equally certain, that where trust pro- 
 perty is properly invested in the three pel* cents., a trustee cannot 
 without especial authority sell out the stock, and invest the proceeds 
 in land ; and if he do so, he will be decreed to replace the stock with 
 costs. (^) 
 
 So it is also unquestionably clear, that trustees have no power per- 
 manently to convert the nature of the trust property, by laying out 
 
 (0) TraflFord u. Boehm, 3 Atk. 444; (<) Brown v. Litton, 1 P. Wms. 141 ; 
 Holland «. Hughes, 16Ves. 114; Howe see Lord Eldon's observations on the 
 V. E. of Dartmouth, 7 Ves. 150. propriety of calling in trust money laid 
 
 (p) Peat V. Crane, 2 Dick. 499, n.; out on real securities, in Howe v. Earl 
 
 Clough «. Bond, 3 M. & Cr. 496 ; Jack- of Dartmouth, 7 Ves. 150; and see 
 
 son V. Jackson, 1 Atk. 513; Ex parte Norbury v. Norbury, 4 Mad. 191 ; Wid- 
 
 Champion, 3 Bro. C. C. 434; cited dowson d. Buck, 2 Mer. 498. 9 ; Calde- 
 
 Franklin v. Frith, 3 Bro. C. C. 434. cott v. Caldecott, 1 N. C. C. 322. 
 
 (9) Hancom v. Allen, 2 Dick. 498 ; . (u) See Wyatt v. Sherratt, 3 Beav. 
 
 Howe V. Earl of Dartmouth, 7 Ves. 1 50 ; 498. 
 
 Clough V. Bond, 3 M. & Cr. 496, 7. (a;) Pride v. Fooks, 2 Beav. 430. 
 
 (r) Matthews v. Brise, 6 Beav. 239. {y) E. Powlett v. Herbert, 1 Ves. jun. 
 
 (s) Ex parte Chaplin, 3 Y. & C. 397. 297. 
 [Knott V. Cattee, 13 Eng. L.&Eq. 311.] 
 
 (1) However, in Pocock v. Reddington, 5 Ves. 800, the Master of the Rolls 
 seems to admit the general power of a trustee to invest on real security, if he 
 thinks proper; and Sir K. Bruce, V. C, appears to have beenof the same opinion 
 in the late case of Lyse v. Kingdom, 1 Coll. 188; but see Norbury v. Norbury, 4 
 Mad. 191. 
 
638 OF INVESTMENT BY TRUSTEES. 
 
 money in the purchase of real estate, unless a special authority for 
 so doing is, conferred upon them by the trust instrument.(a)^ And 
 the exercise of a mere discretionary power to make such a conver- 
 sion, cannot be enforced against the trustees. (a) Although it will 
 be otherwise if the power be made imperative by the terms of the 
 trust instrument. (J) 
 
 In one case, where the trust was to lay out the surplus rents upon 
 
 mortgage or government securities with a view to accumulation, the 
 
 court on petition ordered an accumulated sum to be laid out in the 
 
 purchase of *real estate, but with a declalration, that it was 
 
 •- -^ to be considered as personal estate, (c) 
 
 So the lending trust-money on leaseholds without a special power 
 in the trust instrument is a breach of trust, for the consequences of 
 ■which the trustee will be held responsible. (d) 
 
 And an investment in South Sea Stock,(e) or Bank,(/) or India 
 Stock,(</) though practically as safe as any government security, is 
 not regarded by the court as a proper disposition of. trust funds; and 
 upon acquiring judicial cognizance of the existence of such securi- 
 ties the court will order them to be sold and invested in the three per 
 cents. Consequently, should any loss be occasioned to the trust 
 estate by the fluctuation or depreciation in value of those securities, 
 it would have to be made good by the trustees. (A)^ These remarks 
 apply with equal or even greater force to canal and railway shares 
 and other similar securities ; as also to the public funds of any foreign 
 state. And if a trustee upon his own responsibility adopt any such 
 investments, he must be prepared to take the consequences of any 
 
 (2) See E. of Winchelsea u. Norcliffe, Mad. 100. [See Ex parte Calmer, 1 
 
 1 Vera. 434; as to effect of power of Hill's Eq. 112.] 
 
 varying the securities, vide post, p. 482, (d) Fyler v. Fyler, 3 Beav. 550; Ful- 
 
 Sect., 3, PI. III. of this chapter. ler v. Knight, 6 Beav. 205. 
 
 (o) Lee V. Young, 2 N. C. C. 532. (e) TrafFord v. Boehm, 3 Atk. 444. 
 
 (5) Beaucleik v. Ashburnham, Rolls, (/) Trafford v. Boehm, 3 Atk. 444; 
 
 26th February, 1845, MS.; [8 Beav. Howe «. Earl of Dartmouth,? Ves. 150. 
 
 322;] vide post, ubi supra. (g) Powell v. Cleaver, 7 Ves. 142, n. 
 
 (c) Webb V. Lord Shaftesbury, 6 {h) Hancom v. Allen, 2 Dick. 498; 
 
 Clough u. Bond, 3 M. & Cr. 496. 
 
 ! Bonsall's App., 1 Eawle, 273; Billington's App., 3 Rawle, 55; Kaufman i). 
 Crawford, 9 W. & S. 13 1 ; Royer's App., 1 1 Penn. St. 36 ; Ringgold v. Ringgold, I 
 H. & G. 11 ; Eckford v. De Kay, 8 Paige, 89 ; Heth v. Richmond, &o., R. B. Co. - 
 4 Gratt. 482 ; Morton's Ex'rs. v. Adam, 1 Strob. Eq. 72. In Pennsylvania, however, 
 where the powers of guardians are extensive, it has been held that a guardian 
 might, in a case of imminent necessity, buy in real estate. Bonsall's App.; 
 Royer's App. ut supra. So, in Billington's Appeal, 3 Rawle, 55, it was held that 
 an administrator might purchase his debtor's land under a judgment against him, to 
 prevent a sacrifice, and the debt being lost. 
 
 ^ See ante, note to p. 368. Whether investments in banking and other corpo- 
 rations, are within the general powers of trustees, is not quite settled in this 
 
OF INVESTMENT BY TRUSTEES. 539 
 
 loss. If, therefore, such investments are considered desirable, they 
 should always be expressly authorized by the trust instrument. 
 
 It is still more obvious, that a trustee cannot be justified in risking 
 the funds intrusted to his management upon mere personal security, 
 whether the fund belongs to infant or adult cestui que trusts,{i) and 
 although it was stated on one occasion by Lord Northington, that 
 the lending trust-money on personal security, as on a promissory 
 note, would not of itself amount to a breach of trust without any cir- 
 cumstances of gross negligence,(^) and that dictum is also counte- 
 nanced by some very early decisions,(Z) yet this doctrine has been 
 long since clearly overruled, and it is settled that an investment on 
 personal security, whether created by a promissory note,(jn) or a 
 bond,(w) constitutes a breach of trust, for which the trustee will be 
 personally liable.(o)^ It is immaterial, moreover, that the person to 
 ■whom the money is lent, and by whom the security is entered into, is 
 a co-trustee of the fund.(|7) 
 
 (i) See Adye v. Feuillelon, 3 Sw. 87, u. Free. Ch. 273 ; Walker v. Symonds, 3 
 
 (k) Harden v. Parsons, 1 Ed. 145. Sw. 1. 
 
 (/) Sir Edward Hale's and Lady (o) Holmes t). Bring, 2 Cox, 1 ; Walk- 
 
 Carr's case, 3 Sw. 63, n.; see Emelie er v. Syraonds, 3 Sw. 63; Clough v. 
 
 V. Emelie, 7 Bro. P. C. 259. Bond, 3 M. & Cr. 496 ; Watts v. Girdle- 
 Cm) Ryder i;.Biokerton, 3 Sw. 80, n. ; stone, 6 Beav. 188, 191. 
 
 Darke v. Marlyn, 3 Beav. 525; Vigrass (p) Ex parte Shakesliaft, 3 Bro. C. C. 
 
 V. Binfield, 3 Mad. 62. 197; Kebble i). Thompson, 3 Bro. C. C. 
 
 (n) Adye v. Feuilleton, 2 Cox, 24; 112; March v. Russell, 3 M. & Cr. 31 ; 
 
 3 Sw. 84, n.; Wilkes v. Steward, Coop. Walker v. Syraonds, 3 Swanst. 1 ; Hew- 
 
 6 ; Langston v. Ollivant, Id. 33 ; CoUis ett v. Foster, 6 Beav. 259. [See ante 
 
 V. CoUis, 2 Sim. 365; Terry «. Terry, 309, note.] 
 
 L 
 
 country. In Harvard College v. Amory, 9 Pick. 447, where there was a bequest 
 of $50,000 " in trust to loan the same upon ample and sufficient security, or to 
 invest the same in productive stock, either in bank shares or other stock, ac- 
 cording to their best judgment," the trustees were held to be authorized to invest 
 in the stock of an incorporated manufacturing company. The'court appear to con- 
 sider bank stock, indeed, as a safer investment than land. See also Lovell ■«. 
 Minott, 20 Pick. 116. But such investments are never considered secure in Eng- 
 land ; and indeed are only a form of personal security. Therefore, in Pennsyl- 
 vania, after some little uncertainly, it is now settled that an investment in stock 
 of a banking, manufacturing, or trading corporation, is a breach of trust. Hemp- 
 hill's App. 18 Penn.St. R.303;seeNyce'sEst., 5 W. &S. 254; Morris u. Wallace, 
 3 Barr, 319. In Hemphill's Appeal, the trustees of Mr. Girard's will had in- 
 vested in the stock of the United States Bank, in 1837, and continued the funds 
 therein, till the stock had depreciated to a mere nominal value. Though Mr. 
 Girardhad invested in the same stock in 1831, it was held that the trustees were 
 liable. The same conclusion was also arrived at in New York in Ackerman v. 
 Emott, 4 Barb. S. C. 626, with regard to bank stock, and the English rule was 
 adopted in its broadest terms. It was said there, that if the trustees go beyond 
 the prescribed limits, "neither good faith, nor care, nor diligence, if they can ac- 
 company such departure, will protect them where there is an actual loss." 
 ' The investment of trust funds in merely personal security, is, of course, a 
 
540 OF INVESTMENT BY TRUSTEES. 
 
 It is to be obsen'ed, that if a trustee invest on securities, not ex- 
 pressly authjorized by the trust, and not sanctioned by the practice 
 of the court, it will be done at his own risk ; and he will have to 
 make good any loss occasioned by such an investment. But at the 
 same time he must account to the cestui que trusts for any profits 
 arising from the same source. (5') 
 
 *So the employment of the trust funds in trade, or any 
 L -I speculative undertaking, without any express authority, will 
 d fortiori, be treated as a breach of trust.' And whatever may be 
 the apparent advantages of such a course, and however well inten- 
 tioned the conduct of the trustee, there is no question but that the 
 court will visit upon him any loss resulting from such a step :(r) 
 while he will have to account for any profit thus made.(s) And if a 
 trustee stand by and suffer his co-trustee so to deal with the trust 
 funds ; or, still more, if he be in any way accessory to the breach of 
 trust,.'he will be equally liable, although he may not have otherwise 
 actively interfered, (i) And the same rule applies, although the trust 
 property be merely continued in the trade or business of the tes- 
 tator.(M) And it is immaterial that the trustees were the partners 
 of the testator.(2;) 
 
 (9) Ex parte Shakeshaft, 3 Bro. C. C. Ves. 298 ; Docker v. Somes, 2 M. & K. 
 
 197; Wilkinson u. Stafford, 1 Ves. jun. 655; Wedderburn v. Wedderburn, 2 
 
 32 ; Piety v. Stace, 4 Ves. 622 ; Bate v. Keen, 722 ; 4 M. & Cr. 41. 
 
 Scales, 12 Ves. 402; Crawshay «. Col- {t) Ex parte Heaton, Buck. 386; 
 
 lins, 15 Ves. 226; Docker u. Somes, 2 Booth v. Booth, 1 Beav. 125. [See 
 
 M. & K. 655. ante, p. 309.] 
 
 (r) French v. Hobson, 9 Ves. 103. (u) Booth v. Booth, 1 Beav. 125. 
 
 (s) Brown v. De Tastet, Jac. 284; (2) Wedderburn v. Wedderburn, 2 
 
 Cook V. CoUingridge, Jao. 607; Craw- Keen, 722 ; 4 M. & Cr. 41. [See Cum- 
 
 shay t). Collins, 15 Ves. 218; 2 Russ. mins i). Cummins, 3 J. & Lat. 64.] 
 325; Featherstonhaw v. Fenwick, 17 
 
 breach of trust. Nyce's Est., 5 W. & S. 254; Swoyer's App., 5 Barr, 377; Smith i). 
 Smith, 4 J. C. R. 28 1 ; Gray v. Fox, Saxton, 259 ; Fowler v. Reynall, 7 Eng L. & Eq. 
 270, and many other cases. But in Massachusetts, where, as has been remarked, 
 a looser rule appears to obtain, it was held in Lowell v. Miuott, 20 Pick. 119, that 
 a loan by a guardian on the promissory note of the borrower, payable in one year 
 with interest, secured by a pledge of shares in a manufacturing corporation, then 
 above par, the amount of the loan being about three-fourths of the par value, 
 did not make the guardian responsible for a subsequent loss; and so, where the 
 shares were sold of a note of the purchaser, with note of a third person, secured 
 by mortgage. 
 
 ' Munch V. Cockerell, 5 Myl. & Cr. 178. In Cummins v. Cummins, 3 J. & 
 Lat. 64, it was ruled that, though a settlor should authorize the trustees to con- 
 tinue the trust funds of a trading firm, in which he had invested them, if upon a 
 change taking place in the firm, as by the vpithdrawal of one of the partners, 
 they permit the fund to remain upon the personal security of the new firm, they 
 will be guilty of a breach of trust. 
 
OF INVESTMENT BY TRUSTEES, 541 
 
 Where the trust property is already invested on personal or other 
 securities which would not be sanctioned by the court, it frequently 
 becomes a question of no little difficulty to determine, how far it is 
 the duty of trustees to call in such securities, and lay out the pro- 
 ceeds on some proper investment. 
 
 If there be an express trust declared for the conversion of the 
 existing securities, then, of course, there can be no doubt as to its 
 being the duty of the trustees to act upon that direction, and the 
 neglect to do so will be a breach of trust. (z/) 'And although there 
 may be no positive trust to convert, yet if an order of the court in a 
 suit for the administration of the trust has been made, directing the 
 trustees to convert and invest in the three per cents., they will be 
 liable for neglecting to comply with such an order, and this though 
 the order has been obtained by the trustees themselves.(2) 
 
 Where the trust for conversion is created by will, and applies to 
 the residuary estate of the testator, a twelvemonth from the testator's 
 decease appears to have been fixed upon as usually the proper time 
 for efi^ecting the conversion. (a) 
 
 Thus, in a late case, where a testator directed that his outstanding 
 personal estate should be got in as soon as conveniently might be 
 after his decease ; and the executors and trustees suffered a bond 
 debt to remain outstanding for five years after the testator's death, 
 and the sum was lost by the failure of the debtor, the trustees were 
 held liable to make good the amount. (6) And from the observations 
 of the Vice-Chancellor in the course of his judgment in that case, it 
 seems that it would have been a breach of trust, on the part of the 
 trustees, to have suffered the debt to *remain outstanding after 
 three years had elapsed from the testator's death.(c) And in L J 
 these cases it is not a sufficient excuse for the neglect of the trustees, 
 that the testator had himself created the objectionable security, and 
 reposed great confidence in the debtor, who was supposed to be in 
 affluent circumstances.(ci) 
 
 But in these cases much must necessarily be left to the discretion 
 of the trustees : and if in the honest and proper exercise of that dis- 
 cretion, they delay the realization, they may not be held liable for 
 any loss occasioned by that delay. As where executors, who were 
 directed by the will to call in the testator's personal estate with all 
 convenient speed, continued his trade for some years after his death, 
 and thus occasioned a considerable loss, the court refused to charge 
 
 (2/) Dimesi;. Scott, 4Russ. 201, 207; \ox v. Clarke, 1 Hare, 161, 168; see 
 
 Muoklowt;. Fuller, Jao. 198; Bullock i). Walker v. Shore, 19 Ves. 387: Gibson 
 
 Wheatley, 1 Coll. 130; vide post, u. Bott, 7 Ves. 94, 5. [17 Jur. 826.] 
 
 [Choses in Action], p. 446. (6) Bullock v. Wheatley, 1 Coll. 136. 
 
 (2) Sowerby v. Clayton, 8 Jur. 597. (c) 1 Coll. 136. 
 
 (a) Dimes v. Scott, 4 Russ. 195 ; Tay- {d) Bullock u. Wheatley, 1 Coll. 130. 
 
542 OF INVESTMENT BY TRUSTEES. 
 
 them with the loss, as they had acted bona fide, and according to the 
 best of their judgment.(e) And again, where one of two executors 
 and trustees delayed the sale of some Mexican bonds for a year and 
 seven months after the testator's death, in the hope that the price, 
 which had greatly 'fallen, might rise in the interim; Sir R. Pepys, 
 M. R., refused to fix him with the loss.(/) And the trustee so 
 acting will not be the more liable, because he acted against the 
 wishes and conduct of his co-trustee, if his conduct be bona fide.{g) 
 And it is immaterial that the direction is to convert with all conve- 
 nient speed, for that is no more than the ordinary duty implied in 
 the office of trustee. (A) 
 
 But where there is no actual direction for the conversion of the 
 existing securities, which, on the contrary, are specifically given to 
 the trustees, to be held and applied by them upon the trusts declared; 
 the continuation of the property in its existing state must necessarily 
 have been contemplated by the author of the trust, and may there- 
 fore be properly permitted by the trustees ; unless some reason arise 
 for calling it in, which did not exist when the trust was created. (i) 
 And if in such a case the relative interests of the cestui que trusts 
 would be affected or altered by the disposition of the existing securi- 
 ties, and their investment in the three per cents., the trustees would 
 not be justified in taking that step, although a power is given them 
 to vary the securities. (^) 
 
 If, however, the author of the trust in general terms vest his vihoh 
 estate iji trustees, either by deed or will, without any specific mention 
 of the securities, of which it then consists, and there be nothing from 
 which it may be inferred that the trusts were intended to apply to 
 the property in its actual state ; it would be a very hazardous course 
 for the trustees to suffer any part of the estate unnecessarily to 
 remain outstanding on improper security. It certainly would be no 
 valid reason for their so doing, that the creator of the trust himself 
 considered the existing securities to be a sufficient investment.(Z)' 
 
 Thus it is settled to be the duty of executors and trustees to call 
 in any part of the trust funds which they may find outstanding on 
 
 (e) Garret v. Noble, 6 Sim. 504. (A) 4 Mad. 455. 
 
 (/) Buxton V. Buxton, 1 M. & Cr. 80 [l) Powell v. Evans, 5 Ves. 844; De 
 
 (g) 1 M. & Cr. 96. Manneville v. Crompton, 1 V. & B. 
 
 (fe) 1 M. & Cr. 93. 359 ; Bullock v. Wheatiey, 1 Coll. 130. 
 
 (i) Lord V. Godfrey, 4 Mad. 455. [See Hemphill's App., 18 Penn. St. 
 
 303.] 
 
 ' In Barton's Estate, 1 'Pars. Eq. 24, the trustee suffered bank stock of the tes- 
 tator to remain outstanding, by which a loss occurred, and was held not liable 
 therefor; this was, however, before Hemphill's App., 18 Penn. St. R. 303, where 
 another decision of the same court, on a somewhat similar point, was reversed. 
 
OF INVESTMENT BY TRUSTEES. 543 
 
 mere personal security, although no specific direction for that pur- 
 pose is contained in the will.(m) 
 
 *It has also been laid down to be incumbent on executors rMjoo-i-i 
 to transfer into the three per cents., any funds which they 
 may find invested in other than government stock ;(«) and it seems 
 that this rule will apply to stock of so undoubted a character as Bank 
 of England stock ;(o) it will prevail therefore d fortiori with regard 
 to foreign stock, or shares in speculative companies. 
 
 However, it is not the duty of trustees to call in money invested 
 on good real security, where no risk is apparent.(^) Although it is 
 otherwise where from change of circumstances the security of the in- 
 vestment is diminished, and the capital endangered, as where the in- 
 terest is not regularly paid, and becomes greatly in arrear.(5') It is 
 difficult to lay down any definite rule for the guidance of trustees in 
 such cases, in each of which they must necessarily be governed by 
 their own discretion adapted to the particular circumstances ; bearing 
 in mind the general rule, that in all cases a trustee is bound to take 
 the same precautions, and act with the same prudence with regard 
 to the trust estate, as if he were dealing with his own. Where a 
 mortgage security is paid ofi^ voluntarily by the mortgagee, it will be 
 the trustee's duty to invest the money in the absence of special direc- 
 tions in the three per cents.(»') 
 
 In some cases the trustee will be charged with interest as well as 
 the capital which has been lost by not calling in the improper secu- 
 rities.(s) However, the distinction between trustees putting out 
 money themselves on improper security and permitting it to remain 
 upon the security which the testator had chosen is fully admitted, and 
 will have due weight with the court in determining the extent of their 
 liability.(«) Interest, therefore, will not be given in these cases, un- 
 less there has been great negligence on the part of the trustees.(i() 
 
 Where the trust-moneys are once properly invested in stock, the 
 trustees cannot without an express authority dispose of the stock, and 
 
 (m) Lowson v. Copeland, 2 Bro. C. (o) Howe v. E. of Dartmouth. 7 Ves. 
 
 C. 157; Powell i). Evans, 5 Ves. 839; 149, 150. 
 
 Caffrey v. Darby, 6 Ves. 488 ; Maitland {p) Howe v. E. of Dartmouth, 7 Ves. 
 
 V. Bateman, 13 Law Journ. N. S., 150; see Saddler u. Turner, 8 Ves. 621 ; 
 
 Chano. 272; Carrey v. Bond, 12 Id. Orr «. Newton, 2 Cox, 274. 
 
 484; Mucklow>«. Fuller, Jac. 198; (5) Tench v. Cheese, M. R., 19th 
 
 Tebbs V. Carpenter, 1 Mad. 297, 8; Nov. 1844, MS. 
 
 Bailey v. Gould, 4 Y. & C. 221 ; Clough (r) Challen «. Shipham [4 Hare, 556] . 
 
 V. Bond, 3 M. & Cr. 496; Rogers v. («) Powell v. Evans, 5 Ves. 839; 
 
 Vasey, V. C. K. Bruce, 27th Jan., 1845, Mucklow v. Fuller, Jac. 200. 
 
 MS.; Att.-Gen. v. Higham, 2 N. C. C. («) Powell v. Evan.s, 5 Ves. 841; 
 
 ^3*- Clough V. Bond, 3 M. & Cr. 496. 
 
 (n) Holland v. Hughes, 16 Ves. («) Lowson v. Copeland, 2 Bro. C. C. 
 
 *'■*• 157; Tebbs v. Carpenter, 1 Mad. 298. 
 
544 OP INVESTMENT BY TRUSTEES. 
 
 invest in other securities ; and if they should venture to do so, they 
 will be decreed immediately to replace the stock, and if the stock be 
 replaced for a sum less than that, at which it was sold, to invest the 
 surplus in the same stock to the same uses. (a;)* And in such cases 
 the cestui que trusts will have the option either to have the stock 
 replaced, or to take the money produced by the sale with interest ;(y) 
 and if there have been any *improper conduct on the part of 
 L -I the trustees, they will be charged with interest at five per 
 cent.(2) 
 
 It has been decided, that even an express power for the trustees to 
 vary the securities does tiot authorize changes made without any ap- 
 parent object, or any prospect of benefiting the trust estate.(a) And 
 if the trustees dispose of the existing securities without having in 
 contemplation any immediate re-investment, they will be liable for 
 any loss that may ensue. (6) The exercise of a power of changing 
 the securities will not be imperative on the trustees, unless it be ex- 
 pressly made so by the terms of the instrument. (c)^ 
 
 However, a cestui que trust, being sui juris, who consents to or ac- 
 quiesces in an investment by a trustee, cannot afterwards question 
 its propriety ;{d) indeed if the investment should amount to a breach 
 
 {x) Adams v. C:ifton, 1 Russ. 297 ; (a) Brice u. Stokes, 11 Ves. 324,5) 6; 
 
 Earl Powlelt ■W.Herbert, 1 Ves.jun. 297; see De Manneville u. Crompton, 1 V. 
 
 see Witter v. Witter, ?. P. Wras. 100 ; & B. 359. [See 7 Eng. L. & Eq. 270.] 
 
 Fyler v. Fyler, 3 Beav. 550; Hanbnry (6) Hanbury-u. Kirkland, 3 Sim. 265; 
 
 V. Kirkland, 3 Sim. 265; Crackel v. Be- Broadhurst v. Balguy, 1 N. C. C. 16; 
 
 thune, 1 J. & W. 586; Underwood v. Watts v. Girdlestone, 6 Beav. 190. 
 
 Stevens, 1 Mer. 712 ; Williams u. Nixon, "(c) Vide supra, and post, p. 482, Sec- 
 
 2 Beav. 472. [Murray u Feinour, 2 tion 3, PI. III. of this Chapter. 
 
 Maryl. Ch. Dec. 421.] (d) Brice v. Stokes, 11 Ves. 319; 
 
 ' (jj) Forrest v. Elwes, 4 Ves. 497. [See Langford v. Gascoigne, Id. 333 ; Booth 
 
 Fowler ti. Reynal, 13 Jur. 680.] v. Booth, 1 Beav. 125; Broadhurstii. 
 
 (z) Pocock V. Reddington, 5 Ves. Balguy, 1 N. C. C. 16; Nail v. Punter, 
 
 794; Mosley u. Ward, 11 Ves. 581; 5 Sim. 555 ; Walker i). Symonds, 3 Sw. 
 
 Bate v. Scales, 12 Ves. 402. 64. 
 
 ' Where, as in Maryland, there is no stock specially favored by the court, there 
 is even more reluctance in changing an investment made by the author of the 
 trust. Murray ■;;. Feinour, 2 Maryl. Ch. 418. 
 
 ^ In general, an investment directed by the testator cannot be changed without 
 the consent of all ; if there are cestui que trusts not in being, the court will not di- 
 rect it, Wood V. Wood, 5 Paige, 596 ; Deadrich v. Cantrell, 10 Verg. 263; Con- 
 tee V. Dawson, 2 Bland, 264 ; Burrill v. Sheill, 2 Barb. S. C. 457 ; see Trustees 
 Trans. Univers. v. Clay, 2 B. Monroe, 386; even though to be made in a foreign 
 country. Burrill v. Sheill, ul. supr. But in Perroneau v. Perroneau, 1 Desaus. 
 521, where a testator dying shortly after the Revolutionary War, and distrusting 
 the stability of the government, for better security of his estate directed his ex- 
 ecutors to invest in the funds in England; the court subsequently, on the restora- 
 tion of confidence, under the Constitution, ordered the funds to be invested in this 
 country. 
 
OF INVESTMENT BY TRUSTEES. 545 
 
 of trust, the interest of the cestui que trust, with whose concurrence 
 it was made, is primarily liable to make good to the general trust 
 estate any loss, which may thus be occasioned ;(e) and if the cestui 
 que trust, who so concurs, have derived any actual benefit from the 
 commission of the breach of trust,. he will be bound to make compen- 
 sation to the trustee to the extent of that benefit.(f) 
 
 But this consent or acquiescence on the part of the cestui que trusts 
 must be with full knowledge of the circumstances ;{g) for if there be 
 any misrepresentation or concealment by the trustees, the transaction 
 may be questioned by the cestui que trusts, even though a formal 
 deed of compromise has been entered into by them with the trustees. (^) 
 And it is almost unnecessary to add, that the party whose concur- 
 rence or acquiescence is relied upon as a bar to the remedy against the 
 trustee, must be competent to consent ; for the acts of a person not 
 sui juris, as an infant, or a married woman,(i)' are of course not 
 binding ; and a cestui que trust under such disability may recover 
 against a trustee for any loss occasioned by the improper investment, 
 though it were made with the consent or even at the urgent request 
 of the party by whom it is subsequently questioned. (A) 
 
 So the acquiescence of a cestui que trust entitled in remainder after 
 the death of a tenant for life will not be binding on him during the 
 continuance of the preceding life estate ; for until his own title ac- 
 crues in possession, he has no immediate right to interfere in the or- 
 dinary administration of the trust estate. (Z) 
 
 *If a trustee have lent the trust-moneys upon the personal r^ooq-i 
 security of one of the cestui que trusts in a manner not au- 
 
 (e) Bototh V. Booth, 1 Beav. 125, 130; Hopkins v. Myall, 2 R. & M. 86; Kel- 
 
 Puller •». Knight, 6 Beav. 205. laway v. Johnson, 5 Beav. 319; see 
 
 (/) Ibid. 130. Rj'der v. Byckerton, 3 Sw. 80, n. 
 
 (g-) Mountfort v. Lord Cadogan, 17 (A) Walker v. Symonds, 3 Sw. 69; 
 
 Ves. 489. [See on this subject Munch Bateman v. Davis, 3 Mad. 98; Nail v. 
 
 V. Cockerell, 5 Myl. & Cr. 178.] Punter, 5 Sim. 555; see Marsh v. Rus- 
 
 (A) Walker v. Symonds, 3 Sw. 1 ; sell, 3 M. & Cr. 31, 42. 
 
 Underwood t). Stevens, 1 Mer. 712. (l) Bennet v. Coley, 5 Sim. 181; S. 
 
 (t) Cocker v. Quaile, 1 R. & M. 535; C. 2 M. & K. 225. 
 
 ' Murray «. Feinour, 2 Maryl. Ch. 422; Barton's Est., 1 Pars. Eq. 27. In Wood 
 V. Wood, 5 Paige, 598, it was held that the Chancellor as general guardian of in- 
 fants, could give consent for them, on bill filed, to a proper change of invest- 
 ment. In Mant v. Leith, 10 Engl. L.& E..723, where a trustee at the instance of a 
 cestui que trust, a married woman, sold out stock, and placed the trust fund in an 
 improper state of investment, he was charged only with the amount of the divi- 
 dends which would have accrued on the trust fund, had it remained in its origi- 
 nal slate of investment. See also as to the approval of an investment by a feme 
 coverte, Barton's Est, ut. supr. In Nyce's App., 5 W. & S. 254, it was held that 
 merely saying, by a guardian, that a particular fund was a safe investment, did 
 not authorize an investment therein by an executor. 
 
 85 
 
546 OF INVESTMENT BY TRUSTEES. 
 
 thorized by the trust instrument, he has a right to institute a suit 
 against the party to have the money replaced ; and in such a case he 
 will be entitled to his costs. (»j) This may also be done by the re- 
 presentatives of the trustee, by whom the improper investment was 
 originally made.(w) 
 
 And in like manner, if the trust fund have been transferred bv two 
 trustees from their joint names into the name of one of them only, 
 the trustee, who has concurred in the transfer, may institute a suit 
 against the other to have the fund replaced, (o) And in such a case 
 the cestui que trust need not be made parties to the suit.(p)(l) 
 
 An authority given to a trustee to lay out and invest the trust- 
 money, empowers him to do all acts essential to such a trust ; and it 
 therefore necessarily enables him to give sufficient discharges to the 
 borrowers of the money upon calling it in.(g') 
 
 Where a trustee, for investment in real estate, has possessed him- 
 self of the trust-money, and afterwards purchases real estate in his 
 own name, without any allusion to the trust, the purchased estate 
 will not be held liable to the trust, unless some positive or presump- 
 tive evidence be adduced, that the purchase was made in execution 
 of the trust, (r) 
 
 A trust to invest in the purchase of land does not authorize the 
 trustees to lay out money in repairs and improvements of the 
 estate. (s) 
 
 Trustees for investment in the purchase of lands which are settled 
 in strict settlement, are bound to watch the proceedings for the be- 
 nefit of the persons beneficially entitled in remainder, and they are 
 therefore entitled to be present in the Master's ofiice at the investi- 
 gation of the title to the lands, which are proposed to be purchased, 
 although it would be otherwise where all the persons beneficially in- 
 terested are before the court. (t) 
 
 The usual indemnity clause will not exonerate a trustee from the 
 
 (m) Payne u. Collier, 1 Ves. jun. 170; [Locke i;. Lomax, 11 Eng.L.&Eq. 156; 
 
 Greenwood v. Wakeford, 1 Beav. 576; Coonrod v. Coonrod, 6 Hamm. 114; 
 
 Fuller V. Knight, 6 Beav. 205. Wormley v. Wormley, 8 Wheat. 421.] 
 
 (n) Greenwood v. Wakeford, 1 Beav. (r) Perry v. Phillips, 4 Ves. 108; vide 
 
 576. post, p. 522 (Remedies for Breach of 
 
 (0) Franco v. Franco, 3 Ves. 75; May Trust). [Ante, 91, note.] 
 
 V. Selbey, 1 N. C. C. 235. (s) Bostock v. Blakeney, 2 Bro. C. C. 
 
 (^) Franco v. Franco, 3 Ves. 75; May 653. 
 
 V. Selby, 1 N. C. C. 235. («) Davis v. Combermere, 9 Jur. 76. 
 
 (g) Wood V. Harman, 5 Mad. 368. 
 
 (1) If a trustee be compelled to make good to the cestui que trusts a loss oc- 
 casioned by the default of a oo-trustee, who has become bankrupt, he may prove 
 for the amount so paid by him as a debt against the bankrupt's estate. Lincoln 
 V. Wright, 4 Beav. 427. 
 
OF TRUSTEES FOR TENANT FOR LIFE. 547 
 
 consequences of a breach of trust, in neglecting to convert and in- 
 vest as directed by the trust instrument, (m) 
 
 Where a specific sum (as 2,0001.) is given by will to trustees to be 
 invested, the costs of the investment in the absence of any express 
 directions, must be defrayed out of the particular sum, and will not 
 fall upon the testator's general estate.(a;) 
 
 It is the duty of trustees to give their cestui que trusts full in- 
 formation as to the disposition and investment of the trust pro- 
 perty.(2/) 
 
 *VI. — OF TRUSTEES OF PROPERTY SETTLED FOR LIFE, WITH pgg^-i 
 REMAINDER OVER. 
 
 Trustees of settled property hold as much for the protection and 
 benefit of those entitled in remainder, as of those to whom the im- 
 mediate beneficial enjoyment is given. In administering the trust, 
 therefore, the interests of both must be equally consulted, nor must 
 any advantage be given to either of them at the expense of the 
 other. 
 
 It has been already seen, (2) that in the case of real estate, the 
 trustees, and not the equitable tenant for life, are entitled to the cus- 
 tody of the title deeds: although it is. otherwise if the tenant for 
 life have the legal estate, (a) And if the trustees be guilty of great 
 negligence by suiFering the tenant for life to possess himself of the 
 deeds ; or a fortiori if they deliver them over to him with cogni- 
 zance of the intention to make an improper use of them, they will be 
 responsible to the remainderman for any loss that may ensue. (6) In 
 the recent case of Denton v. Denton, (e) in the Rolls, a testator, by 
 his will, charged certain annuities on his residuary real estate, which 
 he devised to two trustees, in trust, to pay or permit the rents to be 
 received by A. for life with remainder over. Upon the testator's 
 death, A. entered into possession of the estate, and acquired pos- 
 session of the title deeds, which he kept with the acquiescence of the 
 trustees for four years ; the annuities were also regularly paid by 
 him. The trustees then insisted upon having possession of the title 
 deeds, and gave notice to the tenants to pay the rents to them, and 
 commenced an action against A. for the recovery of the deeds. A. 
 filed his bill, to restrain the trustees from continuing these proceed- 
 ings ; and the Master of the Rolls granted the injunction on terms, 
 one of which was, that A. was to bring the deeds into court. His 
 
 (m) Mucklow V. Fuller, Jac. 198 ; see («) Ante, Pt. II. Ch. III. page 272. 
 
 Langston w. Olivant, Coop. 33. [Fen- (a) Ante,Pt.II.Ch.III. 
 
 wick V. Greenwall, 10 Beav. 412.] (6) Evans v. Bicknell, 6 Ves. 174. 
 
 (a;) Gwitter v. Allen, 1 Hare, 505. (c) Denton v. Denton, 8 Jur. 388 ; [7 
 
 (y) Walker v. Symonds, 3 Sw. 58. Beav. 388.] 
 
548 OP TKUSTEES FOR TENANT FOR LIFE, 
 
 lordship appears to have attached much weight to the long acqnies* 
 cence of the trustees in the possession of the tenant for life.(e) 
 
 So it has been also stated, that in the absence of any express di- 
 rections in the instrument creating the trust, the trustees will be en- 
 titled to the possession and management of the estate, if the nature 
 of their duties require that they •should have a controlling power.' 
 For instance, where the trust is to keep up insurances, or pay an- 
 nuities, or other periodical sums, out of the rents, the cestui que trust, 
 who is entitled for life subject to those charges, cannot assert a claim 
 to the possession and management of the estate to the exclusion of 
 the trustees.((^) In Naylor v. Arnitt, a testator devised all his real 
 estates to two trustees, their heirs and assigns, in trust out of the 
 rents and profits to pay two life annuities, and subject thereto to per- 
 mit and suffer A. to receive and take the rents, &c., during his life, 
 with a similar trust in favor of the wife of A., and subsequent limita- 
 tions over to their children. It was held by Sir J. Leach, M. R., 
 that the trustees had power to lease the land for ten years.(e) How- 
 ever, where the income of the estate is amply suflScient to defray the 
 prior charges upon it, the tenant for life will be let into possession 
 P^oQ--, upon giving *proper security for payment of the annuities 
 '- or other charges. (/) Although possession will not be given 
 
 him until the sufficiency of the estate for that purpose has been as- 
 certained by taking the accounts. (^) In the case of Denton v. Den- 
 ton, (A) which is stated above, the trustees of an estate, charged with 
 the payment of annuities, were restrained from taking proceedings 
 to compel the payment of the rents into their hands, rather than 
 into those of the cestui que trust for life, upon the latter's under- 
 taking to keep down the annuities. (A) Where the cestui que trust 
 for life is a female, that is an additional reason for excluding her 
 from the control or management of the estate. (i) But we have also 
 seen, that where it appears, that the trustees were not intended to 
 have the exclusive management of the property, that intention will 
 prevail. (i) And if the personal possession or occupation of the pro- 
 
 (c) Denton v. Denton, 8 Jur. 388. (g-) Ibid. 
 
 Id) Tidd V. Lister, 5 Mad. 429 ; and (Ji) Denton v. Denton, 8 Jur. 383; [7 
 
 see Jenkins v. Milford, 1 J. & W. 629 ; Beav. 388.] 
 
 ante,Pt.II. Ch.III. (i) 5 Mad. 432. [Young v. Miles' 
 
 (c) Naylor u. Arnitt, 1 R.&M. 501. Exr's., 10 B. Mom. 290.] 
 
 (/) Blake v. Bunbury, 1 Ves. jun. 194, (4) Ibid. 
 514; S.C.,4Bro.C.C.21. 
 
 ' Thus in Young v. Miles' Exr's., 10 B. Monroe, 290, on a trust for separate 
 use, it was held, that as to such of the trust property as could be used by thecestm 
 qiie trust, and her husband without conversion, they had the right to the posses- 
 sion, the right to control being in the trustees; but that the money and stocks 
 sliould remain in the possession of the latter. 
 
OF TRUSTEES FOR TENANT FOR LIFE. 549 
 
 perty be essential to its beneficial enjoyment, as in the case of a 
 family residence, there the court will, in any case, deliver the pos- 
 session to the cestui que trust for life, taking means to secure due 
 protection of the property. for the benefit of those in remainder.(Z) 
 
 Where the tenant for life takes the legal estate as -well as the equi- 
 table interest, the right of possession usually follows, and is com- 
 mensurate with, the title. (m)' 
 
 It is the duty of the trustees to protect the estate for the benefit 
 of the remaindermen against the acts of the equitable tenant for life. 
 Therefore, they must not permit him to cut timber, or open mines, 
 or commit other waste, (w)^ 
 
 But where the cestui que trusts for life are without impeachment 
 of waste, the trustees, with the concurrence of the tenants for life, 
 will be justified in cutting such timber as show symptoms of decay ;(o) 
 but not ornamental timber,(p) nor to such an extent as will materi- 
 ally lessen the value of the estate.(g') 
 
 Where the beneficial enjoyment of movable articles, such as heir- 
 looms, or furniture, plate, &c., is given to the tenunt for life, it will 
 be a sufficient precaution on the part of the trustees to take a sche- 
 dule of the articles, signed by the cestui que trust for life. And as 
 a general rule, and in the absence of special circumstances of danger 
 or suspicion, it is not requisite to take any security from the tenant 
 for life for the safe keeping of such articles, and their redelivery to 
 the trustees upon the determination of the life estate. (r)^ 
 
 (0 5 Mad. 432, 3; ante, Pt. II. Ch. III. 131; Daviesi;. Leo, 6Ves.786; Cham- 
 
 (m) See Tidd v. Lister. 5 Mad. 432; berlain v. Dummer, 3 Bro. C. C. 549. 
 
 supra, Pt. IL Ch. Ill, [p. 269} [See on this subject Marker d. Marker, 
 
 (n) Whitfield v. Benett, 2 P. Wins. 4 Engl. L. & Eq. 95; Morris v. Morris, 
 
 242 ; Denton «. Denton, 8 Jur. 388. 15 Sim. 510; H Jur. 196; Duke of 
 
 (o) Waldo V. Waldo, 7 Sim. 261 ; see Leeds v. Lord Amherst, 14 Sim. 357; 2 
 
 Smythe v. Smythe, 2 Sw. 251 ; Brydges Phill. 117.] 
 
 V. Brydges, Id. 150 : Wykham v. Wyk- (g) Bu-rge v. Lamb. 16 Ves. 174. 
 
 ham, 19 Ves. 419. (r) Bill v. Kynaston, 2 Atk. 82; Leeke 
 
 (y) Newdigate v. Newdigate, 1 Sim. v. Bennett, 1 Atk. 471. 
 
 ' But the tenant for life is in such case trustee for the remaindermen, and may 
 be called on for an account. Clarke v. Saxon, 1 Hill's Eq. 69 ; Horry v. Glover, 
 2 Hill's Eq. 515. The trust is, however, an implied, and not an express one. 
 Joyce V. Gunnels, 2 Rich. Eq. 259. 
 
 2 Freeman v. Cook, 6 Ired. Eq. 376; Woodman v. Good, 6 W. & S. 169. In 
 the latter ease it was held that the trustee might bring an action of waste against 
 the equitable tenant for life. 
 
 * It is now established, that the first taker of articles specifically bequeathed 
 to several persons in succession, is not to be required in the first instance to do 
 more than give an inventory or schedule, signed by himself; but that vphere there 
 is any danger that the property will be wasted, secreted, or carried off, then the 
 parties in remainder may, through a court of equity, require security to be given, 
 or an account to be taken, and also, if necessary, obtain an injunction against their 
 
550 OP TRUSTEES FOR TENANT FOR LIFE. 
 
 Where the trust property consists of stock or other personal estate, 
 which is necessarily much more within the power of the immediate 
 possessor than real estate, it is unquestionably the duty of the trus- 
 tees to retain the possession for the benefit of those entitled in re- 
 mainder ; and if they *deliver over the fund unprotected into 
 L -I the possession or power of the tenant for life, who disposes of 
 it for his own benefit, they would unquestionably be answerable to 
 the remaindermen for the loss. 
 
 However, although the trustee would not be justified in putting the 
 corpus of the fund within the exclusive control or possession of the 
 cestui que trust for life, the annual income as it arises is his sole pro- 
 perty; and, therefore, a power of attorney for him to receive the 
 dividends (which is the readiest method of putting him in possession 
 of what the author of the trust intended him to have), cannot entail 
 any responsibility upon the trustees, as long as no circumstance 
 occurs to alter or defeat the right of the tenant for life to the enjoy- 
 ment of the income. However, it may be added, that if the trustee, 
 or one of several trustees, by whom a power of attorney is given, 
 himself once receive the dividends, that will operate as a revocation 
 of the power, and a new one must consequently be executed for the 
 receipt of future dividends. It is almost needless to add, that the 
 death of the trustee, or all the co-trustees, who have executed sucha 
 power, will have the same effect. 
 
 removal. Long v. Chadwick, 13 Conn. 42; Hudson v. Wadsworth, 8 Id. 363; 
 Holliday v. Coleman. 2 Munf. 162; Mortimer v. Moffat, 4 Henn. & Munf. 503; 
 Chishholra v. Starke, 3 Call, 25 ; McLemore v. Good, 1 Harp. Eq. 272 ; Swann v. 
 Ligan, 1 McCord Ch. 227; Cheshire v. Cheshire, 2 Ired. Eq. 569; Sutton v. 
 Cradock, 1 Id. 134; Howell v. Howell, 3 Id. 522; Swann v. Ligan, 1 McC. Ch. 
 227 ; Henderson v. Vaulx, 10 Yerg. 30 ; Clarke v. Saxon, 1 Hill's Eq. 75 ; Spears. 
 Tucker, 2 Barb. Eq. 211; see Kinnard v. Kinnard, 5 Watts, 109; though the 
 tenant for life be a ferae covert, Clarke v. Saxon, 1 Hill's Eq. 75. And a pur- 
 chaser from tenant for life may also be compelled to give security, Condy ii. 
 Adrian, 1 Hill's Eq. 154 ; Walcott v. Cady, 5 J. C. R. 51 ; or (in South Carolina) 
 a purchaser at an execution against the life tenant. Pringle v. Allen, 1 Hill's Eq. 
 135. In Pennsylvania, before the Act of 1834 (Dunlop, 528), it was thought that 
 the courts had no power to require security for a legacy for life in the first in- 
 stance, though they might stay execution till it was given; see Lippincottu. 
 Warder, 14 S. & R. 118; Kinnard v. Kinnard, 5 Watts, 108; but now by the 49th 
 section of that act, it is provided, that whenever personal property is bequeathed 
 to any person for life, or for a term of years, or for any other limited period, or 
 upon a condition or contingency, the executor of such will shall not be com- 
 pelled to pay or deliver the property so bequeathed, until security be given in 
 the Orphans' Court having jurisdiction of his accounts, in such sum and form, as 
 in the judgment of such court, shall sufRciently secure the interest of the person 
 entitled in remainder. As to the collateral inheritance tax,, see § 63 of the same 
 act; and on the construction of the clause, see Rodgers v. Rodgers, 7 Watts, 19. 
 See also a discussion of this subject in the American notes to Howe i). Earl of 
 Dartmouth, 2 Lead. Cas. Eq., part i. 425, 1st Am. Ed. 
 
OF TRUSTEES EOK TENANT EOE LIFE. 551 
 
 It is settled, that any extraordinary bonus or addition to the usual 
 annual income of stock or other property, which is settled in trust 
 for one for life with remainder over, must be treated as capital and 
 added to the principal fund. The trustees, therefore, will not be 
 justified in paying over these unusual additions to the beneficial 
 tenant for life, but they must invest them for the benefit of all par- 
 ties, (s)' • 
 
 This brings us to the consideration of a very important rule, which 
 has been established, as to the duty of trustees of property settled 
 for life with remainder over, where the property is of a perishable 
 nature, such as leaseholds, or annuities for some limited period. As 
 such interests become exhausted by the effluxion of time, if the whole 
 amount of the annual income were paid to the tenant for life, he 
 would in reality be in receipt not only of the interest, but also to a 
 certain extent of the capital of the trust fund, to the prejudice of the 
 remaindermen; and if the life estate lasted sufficiently long, there 
 might be nothing left at its expiration. 
 
 It has therefore been long established as a general rule, that where 
 a testator makes a general gift of his estate, or the residue of his 
 estate, generally to, or in trust for, a person for life with remainder 
 over, so much of the property as consists of leaseholds, or terminable 
 annuities, or other interests of a perishable nature, must be converted 
 and invested in permanent securities for the benefit of the remainder- 
 man. (^)^ And the same rule applies to articles, which ipso usu con- 
 sumuntur, such as wines, live stock, and other property of that 
 nature, (m) And if in contravention of this rule, the trustees suffer 
 the tenant for life to receive the whole income arising from the 
 perishable securities, he will be decreed to refund what he may have 
 
 (s) Brander v. Brander, 4 Ves. 800 ; Sloper, 2 M. & K. 701, 2 ; Mills v. Mills, 
 
 Paris 1). Paris, 10 Ves. 185; see Hooper 7 Sim. 501; Pickering v. Pickering, 2 
 
 «).Rossifer, 13 Price, 774; S.C. iM'Clel. Beav. 57; S. C. 4 M. & Cr. 298; Lich- 
 
 527. field V. Baker, 2 Beav. 481; Benn v. 
 
 {t) Howe V. Earl of Dartmouth, 7 Dixon, 10 Sim. 636. 
 
 Ves. 137; Fearns«. Young, 9 Ves. 552; (u) Randall v. Russell, 3 Mer. 194, 
 
 Dimes v. Scott, 4 Russ. 200 ; Alcock v. 195. 
 
 ' In Price v. Anderson, 15 Sim. 473, however, where an insurance company had 
 declared for several years yearly dividends of 2J per cent., but in 1846 declared a 
 dividend of 12^ per cent., it was held that a tenant for life of the stock was en- 
 titled to the whole amount. So in Johnson v. Johnson, 15 Jur. 714; 5 Engl. L. & 
 Eq. 164, a "bonus or increased dividend of £10 per share, to be added to the 
 usual dividend of £3 per share, making altogelher £13 per share," declared by 
 an Insurance Company two years after a testator's death, was held to be income, 
 and the tenant for life of the shares entitled thereto. See, also, Cogswell v. Cogs- 
 well, 2 Edw. Ch. 231 ; and Ware v. McCandlish, 11 Leigh, 395; the general rule 
 being, that the tenant for life is entitled to increase and profit. 
 2 See post, note to page 390. 
 
552 OF TRUSTEES FOR TENANT FOR LIFE. 
 
 received over and above what he would have received, if the con- 
 P^„j,^-. version had been duly made, and the proceeds ^invested in 
 L -■ the three per cents. ■,{x) and this difference will be treated as 
 capital to be invested for the benefit of all parties entitled.(y) The 
 tenant for life is in the first place bound to make good this difference ■ 
 but on his failure or inability, the parties entitled in remainder may 
 claim against the trustees the full amount, which has so been paid 
 by them in breach of their trust.(3)^ 
 
 If, however, the remaindermen have acquiesced for a considerable 
 period in the receipt of the whole actual income by the tenant for 
 life, and do not claim any relief by their bill as to the prior pay- 
 ments, the court will confine its decree to the conversion, without 
 directing any account of the previous receipts. (a) And where it ap- 
 peared to be beneficial to all parties, that annuities and policies set- 
 tled on a party for life should not be sold, the court on application 
 has sanctioned their retention in specie by the trustees.(J) 
 
 It is settled that bank stock, when settled for life, though a per- 
 manent security, must also be converted and invested in the three per 
 cents. : because it depends on the will of the directors, whether the 
 casual profits (which are full as valuable as the ordinary profits) shall 
 go to the tenant for life, or form part of the capital ; and the court 
 will not allow the interests of tenants for life and of remaindermen 
 to depend on such an uncertainty, (c) The same rule, therefore, ap- 
 
 (a:) Howe v. Earl of Dartmouth, 7 (6) Glengall v. Barnard, 5 Beav. 245. 
 
 Ves. 151; Mills v. MilLs, 7 Sim. 509. (c) Mills v. Mills, 7 Sim. 609; see 
 
 (j/) Ibid. Howe v. Earl of Dartmouth, 7 Ves. 150. 
 
 (z) Howe V. Earl of Dartmouth, 7 [See Price u. Anderson, 15 Sim. 479.] 
 
 Ves. 151; Dimes v. Scott, 4 Russ. 195, It has been already slated that where 
 
 206. property of this description is made the 
 
 (o) Lichfield v\ Pickering, 2 Beav. subject of a trust, the bonuses must be 
 
 481, 8; see Pickering v. Pickering, 4 treated as capital and invested. [Ante, 
 
 M. & Cr. 298, 304. p. 386.] 
 
 ' In Meyer v. Simonson, 13 Engl. L. & Eq. 133, the principles which govern 
 the Court of Chancery on this subject, are thus stated by Parker, V. Ch.: "The 
 personal estate of a testator may be considered as divided into three different 
 classes. First, property which is found at the testator's death invested in such 
 securities as the court can adopt; as money in the funds, or on real securities. 
 The tenant for life is entitled to the whole income of this. Secondly, property 
 which can be converted into money without saorifioing anything by a forced sale. 
 As to this the rule is clear ; it must be converted, and the produce must be in- 
 vested in securities which the court allows, and the tenant for life is entitled to 
 the income of such investment. Thirdly, property which, according to a reason- 
 able administration, is not capable of an immediate conversion, and which cannot 
 be sold immediately without involving a sacrifice of both principal and interest. 
 Ill this case, the rule is to take the value of the testator's interest, and to give the 
 tenant for life the income of that present value." 
 
OF TKUSTEBS FOE TENANT FOR LIFE. 553 
 
 plies -with equal force to other securities, on which there are frequent 
 bonuses, or other casual profits, which are subject to the arbitrary 
 disposition of the parties, by whom such additions are declared. 
 
 So where there is a positive direction in a will for the trustees to 
 convert the personal estate into money, and to invest in government 
 or real securities, and the trusts of the investments are declared for 
 the benefit of one for life with remainder over, the cestui que trust 
 for life is entitled to receive the amount only of so much income, as 
 would have arisen from the personal estate if converted and invested 
 according to the trust within a year after the testator's death ; and 
 the trustees will not be allowed any greater payment to him in pass- 
 ing their accounts. If, therefore, they suffer a security producing 
 a much higher rate of interest, — as for instance an Indian security 
 producing ten per cent. — to remain undisposed of, and pay the whole 
 of the income arising from that security to the tenant for life, they 
 will be liable to make good to the remainderman the difference be- 
 tween the annual amount actually paid, and that which, according to 
 the foregoing rule, ought to have been paid by them to the tenant 
 for me.{d) 
 
 And although the security bearing the higher interest is subse- 
 quently disposed of and invested in the three per cents, at a much 
 more advantageous rate than if the investment had been made at the 
 proper time, the trustees will not be entitled to indemnify themselves 
 for their liability in *respect of the over-payment to the 
 tenant for life^ by setting off against it the increase to the ^ J 
 trust estate, which had proceeded from the delay in making the re- 
 quired investment ; but they will be charged with the whole of the 
 stock actually purchased, as well as the whole interest actually re- 
 ceived, while their allowances in discharge for payments to the tenant 
 for life will be confined to the amount that would have been payable 
 to him, if the improper security had been converted, and the invest- 
 ment in consols made at the proper time.(e) 
 
 However, in deciding on the liability of the trustee in Dimes v. 
 Scott, both the Master of the Rolls,(/) and the Lord Chancellor,(^) 
 appear to have laid considerable stress upon the positive direction in 
 the will for the executors to convert and invest. And where no ex- 
 press trust for conversion and investment is contained in the instru- 
 ment, it has never been decided, that the trustees would not be justi- 
 fied in paying over to the tenant for life the whole of the income 
 arising from a permanent security, which produces more than the or- 
 
 {d) Dimes v. Scott, 4 Rubs. 195. [So (e) Dimes v. Scott, ubi supra, 
 
 of a discretionary direction to convert, (/) 4 Russ. 201. 
 
 Prendergrast v. Prendergrast, 3 Eng. L. (g-) 4 Russ. 207. 
 & Eq. 1.] 
 
554 OF TRUSTEES FOR TENANT FOR LIFE. 
 
 dinary interest, as long as the trust funds or any part of them are 
 suffered to remain on that security.(/i) 
 
 Where a testator directs his residuary estate to be converted and 
 invested in a particular manner, we have seen that the tenant for life 
 is entitled from the first year after the testator's death to receive the 
 amount of income, which those investments would have produced, if 
 made at that time.(^■) The interest which the tenant for life will 
 take during the first year after the testator s death, is yet an unsettled 
 question. This question admits of four possible solutions, and the 
 decisions of very eminent judges may be urged in support of each. 
 
 1st. The tenant for life may be entitled to nothing until the expi- 
 ration of a twelvemonth from the testator's death, according to the 
 opinion of Sir John Leach in Scott v. Hollingworth,(y!;) and of Sir 
 Thomas Plumer in Taylor v. Hibbert -,{1) and the income in the mean 
 time is to be added to, and form part of the capital of the residue. 
 Both those two learned judges appear to have assumed, that this opi- 
 nion was in accordance with the established rule of the court, and Sir 
 Thomas Plumer(»i) treats this general rule as having been so settled 
 by Lord Eldon in the case of Sitwell v. Bernard.(»i) However, in 
 the subsequent case of Angerstein v. Martin,(o) that great judge 
 himself disclaimed any intention of establishing any such general rule 
 by his decision in Sitwell v. Bernard, (n) a decision which he stated 
 to have been founded on the direction to accumulate, which formed 
 an ingredient in that case ; and his lordship's further observations on 
 the decisions in Sitwell v. Bernard(w) and Scott v. Hollingworth, have 
 materially weakened the authority of those cases, if indeed they do 
 not expressly overrule them.(p) The case of Vickers v, Scott(j) 
 arose upon real estate, which was directed to be sold, and the point 
 in question does not seem to have been much argued in that case. 
 r*S891 *^^' -^<'<'°'^*ii'ig to t^6 decision of Sir A. Hart, V. C, in 
 La Terriere v. Bulmer,(r) the cestui que trust for life, during 
 the first year after the testator's death, will take the income of such 
 farts of the estate as are properly invested at the testator's death, or 
 may become so invested during that year. Lord Eldon's decisions in 
 Gibson v. Bott,(s) and Hewitt v, Moris,(*) are also in'favor of this 
 
 (h) See Howe v. Earl of Dartmouth, (m) IJ. & W. 313. 
 
 7 Ves. 150 ; [and Meyer v. Simonson, (n) 6 Ves. 522. 
 
 13 Engl. L. & Eq. 133; Williamson v. (o) T. & R. 238; and see Hewitt «. 
 Williamson, 6 Paige, 503.] Morris, T. & R. 244. 
 
 (i) Dimes V. Scott, 4 Russ. 195; see (p) T. & R. 239. 
 
 preceding page. (g) 3 M. & K. 500. 
 
 (A) 3 Mad. 161; and see Vickers v. (r) 2 Sim. 18. 
 
 Scott, 3 M. & K. 500. (s) 7 Ves. 95. 
 
 (0 IJ. & W. 308; and see Tucker?;. (t) T. & R. 241. 
 Boswell, 5 Beav. 607. 
 
OF TRUSTEES FOE TENANT FOR LIFE. 555 
 
 doctrine, which is also strongly supported by the observations of Sir 
 J. Wigram, Y. C, in the recent case of Taylor v. Clark. (m) 
 
 3d. The tenant for life may be entitled to the income arising from 
 the property in its existing state during the first year from the tes- 
 tator's death. And this view of the law is supported by Lord El- 
 don's decision in the case of Angerstein v. Martin,(a;) and by that of 
 Lord Langdale, M. R., in Douglas v. Congreve.(2/) It has been ob- 
 served by Vice-Chancellor Wigram,(3) that it might be a question, 
 whether Lord Eldon's decree in Angerstein v. Martin was intended 
 to impeach the law as laid down in La Terriere v. Bulmer;(a) and 
 even if such were Lord Eldon's intention, it must must have been 
 considered as overruled by Lord Lyndhurst's decision in Dimes v. 
 Scott.(J) The latter case of Douglas v. Congreve,(c) which is clearly 
 inconsistent with Dimes v. Scott, was also strongly questioned by 
 Vice-Chancellor Wigram in the recent case of Taylor v. Clark, (ci) in 
 which all the authorities on this subject are collected and reviewed, 
 and his Honor's decision, in which he followed Dimes v. Scott in 
 preference to Douglas v, Congreve, is directly at variance with the 
 latter case.(e) 
 
 4th. According to the determination of Lord Lyndhurst in Dimes 
 V. Scott,(5) the tenant for life will take, not the interest actually 
 arising from the property during the first year after the testator's 
 death, but the amount of the dividends on so much three-per-cent. 
 stock, as would have been produced hy the conversion of the property 
 at the end of that year. And this solution of the question has re- 
 cently been adopted by Vice-Chancellor Wigram in the case of Tay- 
 lor V. Clark.(/) 
 
 In this conflicting state of the authorities on the subject, nothing 
 but the decisions of the highest judicial authority can set the ques- 
 tion completely at rest. But, in the mean time, it is conceived, that 
 the fourth alternative, as established by the present Lord Chancellor 
 in Dimes v. Scott, and adopted in Taylor v. Clark, the latest case on 
 the subject, must be considered as carrying with it the greatest au- 
 thority in its favor.^ However, should any adverse claim be origi- 
 
 (w) 1 Hare, 173, 4 ; see also Calde- (6) 4 Euss. 209. 
 
 cott V. Caldecott, 1 N. C. C. 312. (c) i Keen, 410. 
 
 (i) T. & R. 232. (d) 1 Hare. 172,' 3. 
 
 (2/) 1 Keen, 410. (e) See Caldecott v. Caldecott, 1 N. 
 
 (2) 1 Hare, 172; and see Caldecott C. C.320. 
 
 ». Caldecott, IN. C.C. 318. (/) 1 Hare 161. 
 
 (a) 2 Sim. 22. ' 
 
 ' The determination of the Chancellor in Dimes v. Scott, is also approved by- 
 Mr. Spence, after a full discussion of the authorities ; 2 Spenc'e, Eq. Juris. 564, &c. ; 
 and was followed by the Master of the Rolls in Morgan ti. Morgan, 14 Beav.72; 
 overruling Douglass v. Congreve, &c. In Robinson v. Robinson, 9 Eng. L. & Eq. 
 
556 OF TKUSTEES FOR TENANT FOR LIFE. 
 
 Dated on this point, no trustee could be advised to take upon himself 
 the responsibility of putting his own construction on the relatiye 
 rights of the tenant for life and remainderman, which could only be 
 determined with perfect safety to all parties by the decision of the 
 court. 
 
 It may be observed here, that although the testator may not in 
 r*3901 *^^™^ *have given the tenant for life any interest until certain 
 investments are made, the court (in the absence of any pro- 
 visions indicating a contrary intention) considers, that the testator 
 meant the cestui que trust for life to take an immediate and certain 
 benefit, which he will not be deprived of by any neglect or delay on 
 the part of the trustee in making the required investments. The 
 property will, therefore, be treated as if it had been duly converted 
 at the end of the first year after the testator's death, and from that 
 time, at least, the tenant for life will be entitled to the amount of the 
 income which the property would produce if actually in a proper 
 state of investment.(A) 
 
 Qi) Sitwell V. Bernard, 6 Ves. 520; v. Bruere, lb. 529, n.; Walker ti. Shorej 
 Tucker v. Boswell, 5 Beav. 607 ; En- 19 Ves. 387 ; Taylor v. Clark, 1 Hare, 
 twistle V. Markland, lb. 528, n.: Stuart 167, 8. 
 
 70, the Lord Justices held, overruling, S. C, 12 Jur. 969, that where trustees had 
 an option to invest in the three per cents., or real security, which they neglected 
 to do, the tenant for life was entitled to interest from the end of one year after 
 the death of the testator, at four per cent, on the money the property would have 
 produced, at the end of that year up to the time of the investment in the three 
 per cents. 
 
 In Meyer v. Simonson, 13 Eng. L. & Eq. 135, where the money consisted of 
 personal estate invested on personal security, payable by instalments, V. Ch. Par- 
 ker held that the tenant for life (the widow), was only entitled to four percent, 
 on the principal sum secured from the death of the testator; the additional^one 
 per cent, to be invested from time to time, and the income of that investment to 
 be paid to her ; and that the principal sum, as it came in, was also to be invested, 
 and the income thereof paid to her. This subject was also discussed in Wil- 
 liamson V. Williamson, 6 Paige, 304; and the result of the English authorities 
 said to be, and it was so decided, that in the bequest of a life estate in a re- 
 siduary fund, where no time is prescribed in the will for the commencement of 
 the interest or the enjoyment of the use or income of such residue, the legatee 
 for life is entitled to the interest or income of the clear residue, as afterward? 
 ascertained, to be computed from the death of the testator. The conflicting de- 
 cisions were, it was said, cases where there was a direction for a conversion, 
 for which the usual year was allowed. In this case, five pet cent, stock was 
 considered, in New York, as equivalent to the three per cent, consols in England, 
 in estimating the value of legacies at the end of the year. 
 
 From Evans v. Inglehart, 5 G. & J. 1 9 1 , ho we ver, the English rule appears to be 
 inapplicable in Maryland, as the ten ant for life there is entitled to specific articles of 
 the residue without conversion. In both this case, however, and Williamson v. 
 Williamson, the law was supposed to have been settled in England by Angerslein 
 V. Martin, cited in the text. 
 
OF TRUSTEES FOR TENANT FOR LIFE. 557 
 
 The general rule, which requires the conversion of property of a 
 wasting or perishable nature, proceeds upon the supposed intention 
 of the testator, that the property given to the tenant for life should 
 go undiminished to those entitled in remainder. If, therefore, the 
 will shows an intention on the part of the testator to give the property 
 in its existing state to the tenant for life, the general rule in favor of 
 conversion can have no place ; but the intention expressed or implied 
 in the particular case will be carried into effect.(i) 
 
 Thus, if a leasehold estate, or a certain sum of terminable annui- 
 ties, or other property, which is wasting (no matter how rapidly), be 
 bequeathed specifically to, or in trust for, A. for life with remainder 
 over : although the tenant for life may very possibly exhaust the 
 entire property to the total exclusion of the remainderman,' the tes- 
 tator is himself the best judge of what he intended the parties to 
 take, and the general rule for conversion will not apply.(A;) 
 
 And where there is a specific gift of articles quoe ipso usu consu- 
 muntur, such as wines, stock, &c., in trust for an individual for life, 
 the cestui que trust for life will be entitled absolutely to the whole 
 property, and the limitation over of such articles after the life in- 
 terest is inoperative.(Z) 
 
 There is little diflSculty, therefore, in those cases, where the bequest 
 is clearly specific. But it has been observed by Lord Cottenham,(wi) 
 that there are other cases of very great diflBculty, in which it may be 
 very doubtful, whether the testator has left the property specifically, 
 but in which there are expressions which raise the question, whether 
 the property is not to be enjoyed specifically. In these cases, the 
 construction will, of course, be governed by the particular expres- 
 sions used, coupled with the general object and scope of the will ; 
 but it may be remarked, that the courts in modern times appear to 
 have laid hold of very slight circumstances in order to construe a 
 gift as specific, and to take a case out of the principle requiring a 
 conversion, a principle, which was said by Lord Cottenham(w) to be 
 often very diflScult to carry out.(o)^ 
 
 (i) Alcock V. Sloper, 2 M. & K. 702 ; Morgan, 14 Beav. 721 : Howe v. Howe, 
 
 Pickerings. Pickering, 2 Beav. 57. 14 Jur. 369 ; Cotton v. Cotton, U Jur. 
 
 {k) Howe V. Earl of Dartmouth, 7 950 ; Pickup v. Atkinson, 4 Hare, 628,] 
 
 Ves. 149; Bethune v. Kennedy, 1 M. & (/) Eandal v. Russell, 3 Mer. 194, 5. 
 
 Cr. 116; Pickering t). Pickering, 4M.& (m) 4 M. & Cr. 299. 
 
 Cr. 299 ; Vaughan v. Buck, Phill. 80 ; (n) In Pickering v. Pickering, 4 M. 
 
 Lord V. Godfrey, 4 JMad. 455. [Preii- & Cr. 303. 
 
 dergrast v. Prendergrast, 3 Eng. L. & Eq. (o) See Hinves v. Hinves, 3 Hare, 
 
 14 (in the Doraus Proc); Morgan v. 611, 12. 
 
 ' Therefore, where leasehold property specifically bequeathed for life, is wrong- 
 fully converted by the trustees, the tenant for life surviving the terra is entitled 
 to the whole fund, to the exclusion of the remainderman. Phillips v. Sargent, 7 
 Hare, 33. 
 
 ' Cafe V. Bent, 5 Hare, 35,'where it was said, that the general rule as to the 
 
558 OF TRUSTEES FOR TENANT FOR LIFE. 
 
 Thus, it seems to be now clearly settled, that a general residuary 
 gift, in trust for a person for life, followed by a direction to sell after 
 
 conversion of wasting property, " does not proceed on the assumption that the 
 testator intended his property to be sold : but upon this, that the testator has in- 
 tended the enjoyment of perishable property by different persons in. succes- 
 sion ; and this the court can accomplish only by a sale." To the same effect are 
 the observations of Lord Brougham in the case of,Prendergrasti). PrendergraSt 9 
 Eng. L. & Eq. 14, in the House of Lords. The rule above stated, and established 
 in Howe v. Lord Dartmouth, is not very favorably regarded in the modern case- 
 Sir Knight Bruce, indeed, remarks of it, in Cotton v. Cotton, 14 Jur. 950 "that 
 though not to be questioned as a general rule, it had, in his opinion, quite as 
 often defeated as carried out the intention of the testator." The leaning of the 
 courts is, therefore, at present, to treat gifts of this nature, as far as possible 
 specific; and very slight circumstances of intention will be deemed sufficient to 
 take a case out of the general rule. Morgan v. Morgan, 14 Beavan, 72 ; Mackie 
 V. Mackie, 5 Hare, 77; Cotton v. Cotton, 14 Jur. 950; Blann v. Bell, 13 Eng. L 
 & Eq. 191 ; (see, however, the remarks of L. J. Knight Bruce in this case on ap- 
 peal, 22 L. J. Ch. 238 ;) Burton v. Mount, 2 De G. & Sm. 383 ; 12 Jur. 934 ; Howe 
 V. Howe, 14 Jur. 359 ; and see 2 Spence Eq. Jur. 42, 554, and the authorities 
 there cited. "The court," it was said in Prendergrast v. Prendergrast, ub. supr., 
 "attentively and anxiously looks to all indications of such an intention; and 
 before it orders a conversion, must be satisfied that such a course is not excluded 
 by the whole instrument taken together." "The result of the authorities is," 
 remarks Vice Ch. Parker in Blann v. Bell, 13 Eng. L. & Eq. 191, "that the ap- 
 plicability of the rule, in a particular case, is to be ascertained by construing the 
 whole will according to the directions given by the testator." It is still incum- 
 bent, however, on those contesting the applicability of the rule, to point out the 
 expressions of intention which are relied on to prevent its operation. Morgan 
 V. Morgan, 14 Beavan, 72; Sutherland v. Cooke, 1 Coll. 498; Blann v. Bell, 22 
 L. J. Ch. 238. See, also, an able and thorough discussion of the subject in the 
 London Law Magazine for August, 18^, vol. 50, p. 171. 
 
 The difference between a specific and a residuary gift of chattels is fully re- 
 cognised in the United States. Where there is spcci/Sc gift of articles jmie ransu- 
 mtmtur usu, as hay, corn, wine, provisions, &c., for life, a remainder over is void, 
 and the first legatee takes absolutely ; where such gift is of articles which aie 
 not consumed by use, but are only deteriorated, or wear out, as furniture, plate, 
 farming utensils, &c., the remainder is good, but the tenant for life is entitled 
 to the use of the articles. If, however, the gift is residuary, the properly, of 
 whatever kind, must be sold, and the interest, only, of the proceeds, given to 
 the tenant for life. Covenhoven v. Schuler, 2 Paige, 132 ; Patterson v. Devling, 
 1 McMuU. Eq. 459; Woods v. Sullivan, 1 Swann, 507; Robertson v. Collier, 1 
 Hill. Eq. 373 ; Horrey v. Glover, 2 Id. 515 ; De Peyster v. Clendenning, T Paige, 
 403 ; Williamson v. Vaulx, 10 Yerg. 30; Homer v. Shelton, 2 Metcalf, 194; Kin- 
 nard v. Kinnard, 5 Watts, 108. In Evans v. Inglehart, 6 Gill & Johns. 192, 
 however, it was held that the English rule, which requires an executor to convert 
 the personal assets, was inconsistent with the Maryland Act of 1798, ch. 101 ; and, 
 therefore, that a tenant for life of a residue was entitled to enjoy specific articles 
 forming part thereof in specie. But if the residue consists of money, or property 
 whose use is the conversion into money, and which it could not be intended 
 should be specifically enjoyed, then the executor must convert. Ibid; Wootten 
 V. Burch, 2 Maryl. Ch. Dec. 199. In the case of a pecuniary legacy, or stocks, 
 
OF TRUSTEES FOR TENANT FOR LIFE. / 559 
 
 *the death of the tenant for life, will entitle the tenant for r*39ii 
 life to the specific enjoyment of such parts of the trust estate 
 as consist of leaseholds, or other perishable securities, (;p) and the 
 contrary decisions of the Vice-Chancellor of England in Mills v. 
 Mills,(j) and Benn v. Dixon,(j') would scarcely be suffered to prevail 
 against the other authorities, (s) A direction, that the trust estate 
 shall be divided after the death of the tenant for life, has also been 
 held to have the same effect.(i) 
 
 In Alcock V. Sloper(M) the testator gave the residue of his estate, 
 real and personal, to his executors upon trust to permit his wife to 
 receive the rents, profits, and annual proceeds thereof during her life, 
 and after her decease to sell his freehold house in Oxford Street, and 
 also his leasehold houses by auction ; and he desired that A. should 
 be employed as auctioneer to convert the whole of his estate and ef- 
 fects into money for the purposes therein mentioned. Sir John 
 Leach, M. R., considered that the express direction, to convert his 
 leasehold houses and the whole of his estate after the death of his wife, 
 excluded the supposition, that he intended any part of it to be con- 
 verted during her life, and that she was therefore held entitled to 
 
 {p) Alcock t;. Sloper, 2 M. & K. 699 ; (s) See Hinves v. Hinves, 3 Hare, 
 Daniel v. Warren, 2 N. C. C. 290. 61 1. 
 
 (5) 7 Sim. 501. (J.) Collins v. Collins, 2 M. & K. 703 ; 
 
 (r) 10 Sim. 636. [See, also, Cham- Bethune v. Kennedy, 1 M. & Or. 114. 
 bers iJ. Chambers, 15 Sim. 189.] («) AJcodk v. Sloper, 2 M. & K. 
 
 699. 
 
 the tenant for life is only entitled to the interest, unless he gives security. Pat- 
 terson V. Devlin, ut supr.; Eichelberger v. Barnitz, 17 S. & R. 293; Kinnardt). 
 Kinnard, ut supr.; Rodgers v. Rodgers, 7 Watts, 19; Freeman v. Cook, 6 Ired. 
 Eq. 379. With regard to the increase of stock, &o., it will in general go to the 
 tenant for life, he keeping up the original amount. Robertson v. Collier, 1 Hill's 
 Eq. 370; Horry v. Glover, 2 Id. 515; Patterson v. Devling, McMuU. Eq. 459; 
 Pointdexter v. Blackburn, 1 Ired. Eq. 286 ; Evans v. Inglehart, 6 Gill & John. 
 172 ; Woods v. Sullivan, 1 Swann, 507 ; Hunt v. Watkins, 1 Humph. 498 ; 2 
 Kent's Comm. 353, note (a). But where a life estate is given in slaves, it has 
 been held, in Virginia and North and South Carolina, that the remainderman was 
 entitled to the issue. Ellison v. Woods, 6 Munf. 368 : Covington v. Mclntire, 2 
 Ired. Eq. 316; Milledge v. Lamaz, 4 Desaus. 607; Robertson v. Collier; Horry 
 V. Glover; Devling v. Patterson ut. supr. But in Maryland, the general rule ap- 
 pears to apply. Dobson v. Scott, 1 H. & McH. 160; Evans v. Inglehart, 6 G. & 
 John. 172; Wootten v. Burch, 2 Maryl. Ch. Dec. 191. In Flowers v. Franklin, 5 
 Watts, 265, under the particular expressions in the will, the remaindermen were 
 held entitled to stock and implements purchased to replace the deteriorations by 
 death, accident, and wear and tear. But see Devling v. Patterson, 1 McMuU. 
 Eq. 459; Covenhoven v. Sohuler, 2 Paige, 131; Black v. Ray, 1 Dev. & Batt. 
 Eq. 443. 
 
560 » OF TRUSTEES FOR TENANT FOR LIFE. 
 
 receive the income of some long annuities which formed part of the 
 residuary estate.(M)(l) 
 
 So in Collins v. Collins(3;) the devise was as follows, — " I give to 
 my wife Sarah Collins all and every part of my property in every 
 shape and without any reserve, and in whatever manner it is situated 
 for her natural life ; and at her death the property so left to he di- 
 vided in the following manner — one-half in equal proportions to my 
 father," and so on, and Sir J. Leach was of opinion, that the re- 
 maindermen were not entitled to have a leasehold estate of the tes- 
 tator sold, there being a sufficient indication of the testator's inten- 
 tion, that the widow should enjoy the property in specie : and this 
 decision was afterwards approved of and acted upon by Lord Cotten- 
 ham in Pickering v. Pickering.(^) 
 
 In Bethune v. Kennedy(g) the testatrix, after making two specific 
 bequests of sums in the long annuities, gave the residue of her pro- 
 perty, all she did or might possess in the fundsj copy or leasehold 
 estates, to her two sisters during their lives ; at the decease of both of 
 them to be equally divided, share and share alike, between her three 
 cousins or their heirs. The residuary estate, after satisfying the two 
 specific bequests, consisted in part of 150/. per annum in the long 
 annuities. The bill was filed by two of the legatees in remainder to 
 have the long annuities converted into a permanent fund, but Sir C. 
 Pepys, M. R., was of opinion, that the long annuities in question 
 were to be enjoyed by the tenant for life as a specific bequest, and 
 dismissed the bill.(z) 
 
 *The next case is Pickering v. Pickering,(a) where the 
 L -I testator gave and bequeathed to his wife all the interest, 
 rents, dividends, annual produce and profits, use and enjoyment, of 
 all his estate and efi"ect8 whatsoever, real and personal, for and dur- 
 ing the term of her natural life, and (after giving her certain specified 
 articles) at the decease of his said wife,' he gave, devised, and be- 
 queathed to his son-in-law, E. R. P., all the rest and residue of Ms 
 estate and effects whatsoever, both real and personal ; it was held by 
 Lord Langdale, M. R., on the general construction of the will, that 
 the widow was entitled to the enjoyment in specie of the perishable 
 
 (u) Alcock V. Sloper, 2 M. & K. 699. (o) Pickering v. Pickering, 2 Beav, 
 
 (x) 2 M. & K. 703. [See Hunt v. Scott, 31; S. C. on Appeal, 4 M. & Ci. 289. 
 
 1 De G. & Sm. 219.] [See Prendergrast v. Prendergrast, 3 
 
 (2/) 4 M. & Cr. 300. Engl. L. & Eq. 15; see further Burton 
 
 (z) Bethune v. Kennedy, 1 M. & Cr. v. Mount, 2 De G. & Sm. 383; 12 Sm. 
 
 114. 934.] ^I^ 
 
 (1) However, in Mills v. Mills, 7 Sim. 501, a direction by a testator for the jafe 
 of his freehold and leasehold estates, of which there had been a previous gift for 
 life, was held by Sir L. Shadwell, V. C, not to prevent the application of the 
 general rule requiring the conversion of the leasehold property. 
 
OF TBUSTEES FOR TENANT FOR LIFE. 561 
 
 property of the testator during her life without any conversion for 
 the benefit of the remainderman. And this decision was affirmed on 
 appeal by Lord Cottenham.(a) 
 
 In Goodenough v. Tremamondo,(6) the testator gave his residue to 
 his trustees in trust, to permit the rents, issues, profits, interest and 
 annual proceeds thereof, to be received by his son Richard during 
 his life, and after his decease upon trust for the two daughters of his 
 son, when they should attain twenty-one ; with power for the trus- 
 tees after the death of the son to apply the rents, &c., towards the 
 maintenance of the daughters until the vesting of their shares. Part 
 of the residue consisted of a leasehold house, and at the hearing on 
 further directions it was contended, that this leasehold ought to have 
 been converted ; but the Master of the Rolls (Lord Langdale), with- 
 out calling upon the counsel for the other side, said, that he could 
 not declare this to be a case of conversion without striking out of the 
 will the word "rent," which was twice repeated ; there being no other 
 property except the leasehold to which the term was applicaMe.{b) It 
 may be remarked, that the term " rents" was also made use of by the 
 testator in Pickering v. Pickering, although neither of the learned 
 judges, who decided that case, appears to have attached any particu- 
 lar importance to that circumstance. There indeed the testator ap- 
 pears to have been possessed of an estate in land pur autre vie, to 
 which the term "rents" might have applied. (c)(l)^ 
 
 (a) Pickering v. Pickering, 2 Beav. by the same learned judge, that a direc- 
 
 31 ; S. C. on Appeal, 4 M. & Cr. 289. tion that the tenant for life should have 
 
 [See Prendergrast v. Prendergrast, 3 " the full and entire enjoyment of real 
 
 Engl. L. & Eq. 15; see further, Burton and personal estate" operated as a spe- 
 
 V. Mount, 2 De 6. & Sm. 383, 12 Jur. cific gift of leaseholds. Harvey v. Har- 
 
 934.] vey, 5 Beav. 134; see Att.-Gen. v. Pet- 
 
 (6) Goodenough v. Tremamondo, 2 ter, 5 Beav. 164. 
 
 Beav. 512. In a late case it was held (c) 4 M. & Cr. 292. 
 
 (1) In Mills u. Mills, 7 Sim. 501, the same expression occurred, but Sir L. Shad- 
 well, V. C, notwithstanding, held, that the property ought to have been converted 
 in favor of the remainderman. 
 
 ' In Harris v. Poyning, 13 Engl. L. & Eq. 268, 1 Drewry, 174, a testator gave 
 all his residuary real estate, and all his slock, mortgages, and other securities for 
 money, and other his personal estate and effects, to his wife and his son, upon 
 trust for his wife for life, subject to an annuity for his son ; and after her death, as 
 to all the devised and bequeathed real and personal estate, of which his wife was 
 to have the yearly interest, upon trust for his son absolutely. The testator having 
 inter alia, left leaseholds, it was held that these were to be enjoyed by the widow 
 in specie. See also Neville v. Fortescue, 16 Sim. 333; Howe v. Howe, 14 Jur. 
 359. In Thornton v. Ellis, (10 Engl. L. & Eq. 65) however, where the tes- 
 tator bequeathed the interest and proceeds of the residue of his property '•' o. 
 every description it might be at his death," to certain persons for life, and after 
 
 36 
 
562 OP TRUSTEES FOR TENAKT FOE LIFE. 
 
 The recent decision of the Lord Chancellor in Vaughan ». Buck((?) 
 is also in favor of the enjoyment of the residue in specie by the lega- 
 tee for life. 
 
 But in the late case of Benn v. Dixon, (e) the testator gave to his 
 ■wife the whole of the interest arising from his property both real and 
 personal during her life, and at her decease to be disposed of as there- 
 after named, and should he die without leaving issue, he gave the 
 whole of his property, both real and personal, to his brothers and 
 sister in equal proportions. Part of the testator's estate consisted 
 of a leasehold house, in which he resided, and which his widow con- 
 P^nqq-. tinned jto occupy after his *death. It was contended on be- 
 ^ half of the widow, on the authority of Alcock v. Sloper, Col- 
 
 lins V. Collins, and Pickering v. Pickering, that she was entitled to 
 the specific enjoyment of this property ; but Sir L. Shadwell, V. C. 
 E., held that there was nothing on the face of the will to take the 
 case out of the operation of the general rule, according to which the 
 property was to be converted and invested in the funds, in order to 
 produce the same interest to the remainderman as was enjoyed by 
 the tenant for life.(/) However, in the subsequent case of Daniel 
 V. Warren,(^) before Sir K. Bruce, V. C, there was a residuary gift 
 of all the testator's property in trust for S. M. W. for life, and after 
 her death unto her children in equal proportions, and in the event of 
 her death without leaving issue to attain twenty-one, the whole of th 
 proferty to he sold by public auction. The Vice-Chancellor held, that 
 S. M. W. was entitled to the enjoyment in specie of leaseholds, which 
 formed part of the testator's estate.' 
 
 (d) 1 Phill. 76. see Mills v. Mills, 7 Sim. 501, slated 
 
 (e) 10 Sim. 636. supra, 391, n. 
 
 (/) Benn v. Dixon, 10 Sim. 639 ; and (g) 2 N. C. C. 290. 
 
 wards over, it was held that railway shares ought to be converted ; and see Mor- 
 gan V. Morgan, 14 Beav. 92. So in Blann v. Bell, 22 L. J. Ch. 236, where a 
 testator gave the residue of his estate to trustees to pay the dividends of 1500/. 
 stock to A. for life, and after to divide the dividends between F. B. and F. R., 
 and the survivor of them. He gave the residue of his freehold, copyhold, and 
 leasehold estate, and all other his estates and effects upon trust to pay the divi- 
 dends, interest, rents, and annual produce to his wife E. B. for life, with remainder 
 to F. R. for life, with other remainders. The testator had leasehold property, canal, 
 and insurance shares, and Dutch bonds. It was held by the Lords Justices, af- 
 firming, S. C. 13 Engl. L. & Eq. 191, that she was not entitled to enjoy the shares 
 and Dutch bonds in specie, though she was the leaseholds. 
 
 > A testator possessed of sums in various stocks, and of long annuities, gave 
 certain specific and general stock legacies, " and as to all the rest, residue, and 
 remainder of his estate," he gave it to his widow for life ; and after her decease 
 he bequeathed " it as follows" : — He then gave various general stock legacies, 
 and whatever there might be then remaining, after the above-mentioned direc- 
 tions had been made, he gave to the plaintiffs. It was held by Lord Cottenham 
 that the widow was not entitled to enjoy the long annuities in specie. Lechneld 
 V. Baker, 13 Beav. 447. 
 
OF TRUSTEES FOR TENANT FOR LIFE. 563 
 
 And in the still later case of Hinves v. Hinves,(A) a testator be- 
 queathed to his executors to dispose of his property in the manner 
 after mentioned, all debts and funeral expenses paid, viz. to his wife 
 S. H. the whole income of his property of all descriptions whatso- 
 ever for her life at her own disposal, hut not to sell without the con- 
 sent of all parties. He then gave certain particular legacies to his 
 wife, and the residue of his estates or property whatsoever equally 
 to his five brothers. It was held by Vice-Chancellor Wigram, that 
 the testator's wife was erftitled to the income of leaseholds and long 
 annuities in specie. And his Honor in the course of his judgment, 
 remarked upon the cases of Mills v. Mills, and Benn v. Dixon, as 
 differing in principle from the current of the modern authorities. 
 
 If any part of the property, given for life with remainder over, 
 consist of a reversionary interest, which produces no immediate avail- 
 able income, but which admits of being valued, and converted into 
 money, the same rule which in the cases hitherto considfered works 
 for the benefit of the persons entitled in remainder, will also hold 
 good (to the same extent and subject to the same exception) for the 
 benefit of the tenant for life : and according to that rule it is primd 
 facie the duty of the trustees at once to dispose of such an interest, 
 and invest the proceeds in stock, which will produce an immediate in- 
 come available for the benefit of the tenant for life.(i) 
 
 If the trustees of a settled estate join with the remainderman to 
 evict the tenant for life from the possession of the property, they will 
 be personally liable to make good the whole rent for the time of such 
 eviction, without any allowance for any accidental deficiencies in the 
 amount actually received. (A) 
 
 A trust for the accumulation of the income of property settled for 
 life, is one of very frequent occurrence, more especially where the 
 settlement is made by will. Previously to the statute 39 k 40 Geo. 
 III. c. 98 (usually called the Thellusson Act),' the enjoyment of the 
 
 (A) 3 Hare, 609. {k) Kaye v. Powell, 1 Ves. jun. 408. 
 
 (i) Feanis v. Young, 9 Ves. 549, 552j 
 Dimes v. Scolt, 4 Russ. 200. 
 
 ' Upon the construction of this Act, the following decisions, since the publi- 
 cation of the text, may be referred to as involving important and interesting 
 questions; Browne v. Stoughton, 14 Sim. 369 (see the remarks of Mr. Lewis 
 on this case : supp. to Lewis on Perp. 174) ; Marquis of Bute v. Harnum, 9 Beav. 
 320; Bateman v. Hotchkin, 10 Beav. 426; Routh u. Hutchinson, 8 Beav. 581 ; 
 Boughton V. Boiighton, 1 H. L. Ca. 406 ; Lady Hosslyn's trust, 16 Sim. 391; 
 Halford v. Stains, Id. 488; Ellis W.Maxwell, 12 Beav. 104; Wilson v. Wilson, 
 ( ( 3 Engl. L.& Eq. 138; Basset v. Lister, 9 Hare, 177; 7 Engl. L. &Eq. 158; Mor- 
 gan V. Morgan, 2 Engl. L. & Eq. 35; S. C. 6 Id. 130 ; Bourne v. Bnckton, 2 Sim. 
 N. S. 91; 9 Engl. L. & Eq. 144; Corporation of Bridgenorth v. Collins, 15 Sim. 
 528. See as to proviso with regard to portions, ante, 368, and note. In Penn- 
 
564 OF TRUSTEES FOR TENANT FOR LIFE. 
 
 r*Sq4n ^'^°°™® °^ *property might have been suspended for so long 
 L -la period as the vesting of the estate itself; viz. for a life in 
 being, and a subsequent period of twenty-one years. (Z) The abuse 
 of this legal riglit in the case of the will of the late Mr. Thellusson 
 induced the legislature to interfere for the purpose of curtailing the 
 period for accumulation, and that period is now restricted by that 
 act to four alternate terms, viz. 1st, The life of the settlor ; 2d, 
 Twenty-one years from the death of the settlor ; 3d, The minority 
 or minorities of any person or persons living at the death of the set- 
 tlor, or 4th, During the minority or minorities of any person or per- 
 sons, who, if of full age, would be entitled under the limitations to 
 the income, which is directed to be accumulated. But the act con- 
 tains an exception in favor of any accumulation directed for the pay- 
 ment of debts, or for raising portions for children. 
 
 It has-been determined that these four periods are alternative and 
 not cumulative, that is to say, a testator may direct the income of 
 trust property to be accumulated for twenty-one years after his death, 
 or for the minority of A., but not for twenty-one years from his 
 death, and during that minority. (?h) 
 
 The act goes on to direct, that any' accumulations directed con- 
 trary to its provisions shall be void, and that the income directed to 
 be accumulated shall go to the person who would have been entitled 
 to it, if there had been no such direction. Upon the construction 
 of this provision, it was held that any accumulation directed for too 
 long a period is void only for the excess, and not in toto.{n) And 
 
 Q) Lord Southampton v. Marquis of peal, 4 M. & Cr. 231, and cases cited; 
 
 Hertford, 2 V. & B. 61. [Hillyard v. Marshall ■«. HoUoway, 3 Swanst. 432; 
 
 Miller, 10 Barr, 333.] Griffiths v. Vere, 9 Ves. 129; Longdon 
 
 (m) Griffiths v. Vera, 9 Ves. 136; 1 v. Simpson, 12 Ves. 295; Lord South- 
 
 Jarm. Pow. Dev. 418,9; Ellis v. Max- ampton v. Hertford, 2 V. & B. 61 ; Ha- 
 
 well, 3 Beav. 587. [Wilson v. Wilson, ley v. Banister, 4 Mad. 277. [Neltleton 
 
 3 Engl. L. & Eq. 138.] v. Stevenson, 3 De G. & Sm. 366 ; see 
 
 (n) Lade v. Holford, Ambl. 479 ; Eyre the remarks of Gibson, C. J., in 10 Barr, 
 
 V. Marsden, 2 Keen, 564 ; S. C. on ap- 335; but see note below.] 
 
 sylvania, there was formerly no legislative provision especially directed against 
 accumulations, but they have been rigidly restricted within the common law rule 
 as to perpetuities ; even where the fund to be thus created was directed to 
 be ultimately applied to the foundation and support of a charity. Hillyard ». 
 Miller, 10 Barr, 326. Now, however, the Legislature, by the act of 1853 (P. L 
 507), § 9, has substantially adopted the Thellusson Act, omitting, however, 
 the proviso with regard to trusts for debts and portions. On the other hand, m 
 addition, donations, bequests and devises, for any literary, scientific, chari- 
 table or religious purpose, are excepted out of the act; accumulations are 
 also made void only as to the excess above the period prescribed. In New York, 
 by the Revised Statutes, part U. ch. 1, tit. 2, § 15, 37 ; tit. 4, § 1, &o., there are 
 restrictions against the accumulations, even more stringent than the Thellusson 
 Act. 
 
OF TRUSTEES FOR TENANT FOR LIFE. 565 
 
 when the period allowed by the act for accumulation has expired, 
 the income during the residue of the time appointed for its accumu- 
 lation by the testator, will be held in trust for his heir-at-law or next 
 of kin, according to the nature of the estate,(o) or for his residuary 
 legatees, if the residuary clause be so framed as to pass the interest, 
 thus becoming undisposed of.(p) 
 
 Where real estate is settled in trust for a tenant for life with re- 
 mainder over, the trustees will not be justified in raising out of the 
 corpus of the estate any sums, which may be requisite for the sub- 
 stantial repairs of the mansion house or estate (although occasioned 
 by the existence of dry rot) ; but such expenses must be defrayed 
 out of the interest of the tenant for life in possession.(g')' 
 
 Previously to the act 4 & 5 Will. IV. c. 22, the representatives or 
 assigns of tenants for life of rents, annuities, or stock, &c., were not 
 entitled to any apportionment in case of the death of the tenant for' 
 life, in the interval between the regular days of payment ; unless in- 
 deed there were an express provision for that purpose.^ But by that 
 
 (o) Eyre v. Marsden, 2 Keen, 564 ; 4 (p) O'Niel v. Lucas, 2 Keen, 313; 
 
 M. & Cr. 231; M'Donald v. Bryce, 2 Ellis v. Maxwell, 3 Bear. 587; Att. 
 
 Keen, 271. [Sewellii. Dewny, lOBeav. Gen. v. Poulden, 3 Hare, 555. 
 
 315; Barrett v. Buck, 12 Jur. 771; (?) Bostock «. Blackeney, 2 Bro. C. 
 
 Boughton w. Boughton, 1 H.L. Cas. 406; C. 653; Hibbert iJ. Cooke, I S. & St. 
 
 Nettleton v. Stevenson, 3 De G. & Sm. 552 ; Nairn v. Majoribanks, 3 Russ. 582 ; 
 
 366,] Caldecott v. Brown, 2 Hare, 144. 
 
 ' See Thurston v. Dickenson, 2 Richard. Eq. 317; Cogswell v. Cogswell, 2 
 Edw. Ch. 231 ; Jones v. Dawson, 19 Alab. 692. But in Parsons v. Winslow, 10 
 Mass. 361, it was said that where trustees are directed to invest in real estate, 
 and purchase a house, the e.>:penses of putting it in tenantable repair, come out 
 of the capital. And in Harris v. Poyner, 13 Engl. L. & Eq. 268, where leaseholds 
 were specifically bequeathed for life, and the tenant for life was compelled to 
 make good dilapidations incurred by the testator, under a covenant in the lease, 
 it was held that the expenses were to be charged on the corpus of the estate; 
 though the rule is as different between a specific and a residuary legatee. Hick- 
 ling V. Boyer, 9 Engl. L. & Eq. 209. In the case of a total destruction of an in- 
 sured building by fire, the properly is so far converted into personalty, and 
 where there is a life estate with remainders, the parties are entitled to the use of 
 it according to their respective interests ; and the money is not to' be applied to 
 the rebuilding of the house, Haxall's Ex'rs TJ.fShippen, 10 Leigh, 536 ; but the 
 case of a partial injury is different, and the amount of the insurance is to be ap- 
 plied to the repair of the building. Brough v. Higgins, 2 Graft. 408. 
 
 " In most of the States there are now statutory provisions authorizing the ap- 
 portionment of rent on the death of the tenant for life ; following the 1 1 Geo. I. 
 ch. 19, &c. See 3 Kent Comm. 471 ; Pennsylvania Act of 1834, § 7 (Dunlop 518) ; 
 3 Greenleaf Cruise, 117 (306), note; Code of Virginia, 1849, p. 574. With regard to 
 annmiies, the general rule is thatthey are not apportirfriable. Wigginw.Swett, 6 Mef- 
 calf, 194; Mannings v. Randolph, 1 Southard, 144; Tracy i;. Strong, 2 Conn. 659; 
 Earp's Will, 1 Pars. Eq. 168 ; see Gheen v. Osborne, 17 S. & R. 171 ; McLemore v. 
 Goode, Harp. Eq. 275; Waring v. Pureell, 1 Hill's Eq. 199. Where, however, a 
 testator, gave an annuity to his wife " in lieu of dower," it was held apportion- 
 
566 OP TRUSTEES FOR TENANT FOR LIFE. 
 
 statute the right to such an apportionment is given in all cases where 
 P^ g the right to the payment *is created by any instrument or 
 L J will executed or coming into operation after the passing of 
 the act.(y) 
 
 The tenant for life, who is in the possession of the estate, is liable 
 to all rates and taxes, and the trustees will not be justified in de- 
 fraying those charges out of the general trust fund.(s)" 
 
 It not unfrequently happens that the interest given to a cestui que 
 trust for life, is directed to go over for the benefit of other parties on 
 his bankruptcy or insolvency, or any attempt at alienation. And it 
 has repeatedly been decided, that such a direction is valid, and that 
 the assignees of the cestui que trust for life will take no interest in 
 the trust property so limited.(^) But if any beneficial interest re- 
 mains in the tenant for life ; as, for instance, where the property in 
 the event contemplated is to be in trust for the benefit of Mm and 
 his wife and family ; in that case, whatever benefit he is entitled to, 
 
 (r) See re Markby, 4 M. & Cr. 484 ; Cooper v. Wyatt, 5 Mad. 482; Shee v. 
 
 Michell V. Michell, 4 Beav. 549. Hale, 13 Ves. 404; Lewes v. Lewes, 6 
 
 (s) Fountaine o. Pellet, 1 Ves. jun. Sim. 304; Twopenny i;. Peyton, 10 Sira. 
 
 342. 487 ; Page v. Way, 2 Beav. 20 ; Btan- 
 
 (0 Dommet v. Bedford, 3 Ves. 149 ; don v. Aston, 2 N. C. C. 24. 
 
 able. Gheen v. Osborne, 17 S. & R. 171; though the contrary was ruled in Tracy 
 V. Strong, 2 Conn. 659. And in Fisher v. Fisher (Dist. Ct. Philadelphia), 4 Am. 
 Law Journ. N. S. 539, it was laid down as a general proposition, that where, as 
 in the case of a bequest to a wife or child, it is not dependent on the mere gene- 
 rosity of the donor, an annuity is apportion able. Dividends from money in the 
 fands, and bank stock, are also not apportionable ; Earp's Will, 1 Pars. 468; 
 Wilson V. Hosmer, 2 Ves. Sr. 672 ; though see contra. Ex parte Rutledge, Harp. 
 Eq. 65: but interest on money out on bond or mortgage is. Earp's Will; Swei- 
 gart V. Berks, 8 S. & R. 299. 
 
 > Cairns v. Chabert, 3 Edw. Ch. 362. In Cochran v. Cochran, 2 Desaus. 521, 
 however, only one-third of the taxes and repairs were charged on the tenant for 
 life (a widow), probably on the ground of that being supposed then to be the 
 proportionate value of a life estate. So the charge of keeping down incum- 
 brances on the estate, falls on the tenant for life. 4 Kent's Comm. 74; Jones t). 
 Sherrard, 2 Dev. & Batt. Eq. 187; Cogswell v. Cogswell, 2 Edw. Ch. 231; see 
 Caulfield v. McGuire, 2 J. & Lat. 141 ; Hinves v. Hinves, 3 Hare, 609. In North 
 Am. Coal C,o. v. Dyott, 7 Paige, 1, where a manufacturing establishment was 
 held in trust, it was ruled that the one entitled to the present income was exclu- 
 sively responsible for the debts incurred in carrying on the establishment. Where 
 land is sold under an incumbrance, the tenant for life and remainderman are 
 entitled to share according to their relative proportions. Williams's Case, 3 Bland, 
 106. What the proportion is, see 4 Kents' Comm. 74, and Williams's Case, ub. 
 supra. Formerly it was estimated at a third, but it is now usually referred to a 
 Master, to inquire what the value of the estate is according to the life annuity 
 tables. Niemcewicz v. Gahn, 3 Paige, 652; Jones v. Sherrard, 2 Dev. & Batt. 
 Eq. 189. 
 
OF TRUSTEES FOE TENANT FOR LIFE. 567 
 
 will unquestionably go to his assignees.(M) However, where it is 
 left entirely in the discretion of the trustees to continue or withhold 
 any benefit to the bankrupt or insolvent, his assignees will not be 
 entitled to anything, as long as nothing is given to him by the trus- 
 tee^.{x) But whatever interest they should actually give him in the 
 exercise of that discretion, will unquestionably go to the assignees.(«/) 
 And in these cases, the intention to exclude the assignees, on the 
 bankruptcy or insolvency of the cestui que trust for life, must be 
 clearly expressed ; and where the forfeiture seems only to contem- 
 plate a particular and voluntary alienation, it will not be extended 
 to an alienation by act of law.(z)' 
 
 {u) Rippon V. Norton, 2 Beav. 63; and that of Twopenny v. Peyton, 10 
 
 Lord 0. Bunn, 2 N. C. C. 98,; Green v. Sim. 487, in 1 Coll. Ch. 400, and in 10 
 
 Spicer, 1 Ross & Milne, 395 ; Piercy v. Jur. 419.] Lord v. Bunn, 2 N. C. C. 98 ; 
 
 Roberts, 1 M. & K. 4 ; Snowdon v. Kearsley -u. Woodcock, 3 Hare, 185. 
 
 Dales, 6 Sim. 524; Younghusband v. {y) Lord v. Bunn, 2 N. C. C. 98; 
 
 Gisborne, 3 Jur. 750; S. C. 1 Coll. N. Kearsley v. Woodcock, 3 Hare, 185. 
 
 C.C. 400; [affirmed 10 Jur.419 ; Roch- {z) Lear v. Leggett, 2 Sim. 479; 1 
 
 ford V. Hackraan, 9 Hare, 475; 10 Engl. R. & M. 690; Whitfield v. Prickett, 2 
 
 L. & Eq. 64.] Keen, 608. [Rochford v. Hackman, 9 
 
 {x) Godden v. Crowhiirst, 10 Sim. Hare, 475, 482; 10 Engl. L. & Eq. 
 
 642. [But see the remarks on this case, 68.] 
 
 ' In Rochford v. Hackman, 10 Engl. L. & Eq. 64; 9 Hare, 475, it was held, 
 that though a proviso restraining alienation was as much void in the case of a 
 life estate as of a fee, a limitation over on such alienation was good; and that 
 the limitation need not necessarily be connected with the gift, but the intention 
 to create it might be gathered from a subsequent part of the will. Under such a 
 limitation, taking the benefit of the insolvent law was included. In Dickson's 
 Trust, 1 Engl. L. & Eq. 149, a condition that a legacy to a daughter should be 
 forfeited, on her becoming a nun, was held good, though there was no limitation 
 over; and the distinction was taken between conditiones rei lidta, which that was 
 held to be, and conditiones rei non licitie, as those in restraint of marriage, in which 
 case a limitation over, or direction that the forfeited share shall form part of the 
 residue, the residue being given over, is necessary. In Rochford v. Hackman, 
 however, Vice-Ch. Turner remarking on this case, says : " It was said at the bar 
 that a limitation over is unnecessary ; and the case of Dickson's trust was relied 
 on. I do not think it necesisary to decide the point at present, but I do not un- 
 derstand the case of Dickson's trust as deciding that a life interest may be well 
 determined merely by a proviso that it should cease in a certain time, without 
 anygift over being made. The true rule is, that the court must collect the tes- 
 tator's intention,— whether the life estate should continue or not, — fAm the whole 
 will." But he remarks subsequently, " it would be difficult to argue that more 
 force was due to a gift over, than to a proviso for cesser." 
 
 In Grace !■. Webb, 12 Jur. 987; 2 Phillips, 701, a covenant to pay to a single 
 woman for a life, subject to a proviso thereinafter contained, an annuity of £40, 
 the proviso being, that if she should afterwards marry, the annuity should be 
 reduced to £20, it was held that the gift in the first instance was a qualified 
 one, and the proviso was good. The Chancellor (Lord Cottenham) was also of 
 opinion that the condition, if one, was precedent to the accruing of each annual 
 Bum, not subsequent, and therefore, also, good. This principle was again reoog- 
 
568 OF TRUSTEES FOK INFANTS. 
 
 VII. — OF TRUSTEES FOR INFANTS. 
 
 Infants and their property are in an especial manner under the 
 protection of the Court of Chancery, which regards with peculiar 
 jealousy anything approaching to a dereliction of duty by their trus- 
 tees. 
 
 It is the settled rule of the court, and one that is never varied 
 ■without special circumstances, that trust-money belonging to an 
 infant must be laid out by the trustee in the three per cents. : and 
 the court will not even direct a reference to the Master, to inquire 
 whether it would be for the infant's benefit, that the fund should be 
 laid out on real security, unless there is something very special in 
 the case to induce it to relax the general rule. (a) 
 
 So trustees or guardians will not ordinarily be permitted to change 
 the nature of the infant's property, by converting personalty into 
 real estate, or vice versa.{by And where the trustees of an infant, 
 
 (a) Norbury v. Norbury, 4 Mad. l91. 122) Witter v. Witter, 3 P. Wms. 101; 
 
 lb) 1 Mad. Ch. Pr. 269, 270; 1 Fonbl. Rook v. Worth, 1 Ves. 461 ; Tullitt v. 
 
 Eq. B. 1, ch. 2, s. 5, n. (6) ; 2 Story Eq. Tullitt, Arabl. 370. 
 Jur. H357; Ex parte Phillips, 19 Ves. 
 
 riised in Lloyd v. Lloyd, 10 Engl. L. & Eq. 431. The case of Grace v. Webb, 
 was, however, pointedly disapproved in Hoopes v. Dundas, 10 Barr, 75. The 
 general rule as to conditions in restraint of marriage, is, that they are vaUd when 
 annexed to real estate, Comm. v. SchaefTer, 10 Barr, 350; but void (without a 
 limitation over) in bequests of personalty and annuities. Hoopes v. Dundas, 10 
 Barr. 75. Whether a proviso in the creation of a trust, that the trust property 
 shall not be liable to the cestui quetrusVs debts, is valid, is not settled in this coun- 
 try. It was held not to be so in Hallett v. Thompson, 5 Paige, 383 ; (see Rideri). 
 Mason, 4 Sandf. Ch. 352;) and Dick v. Pilchford, 1 Dev. & BaU. Eq. 480. In 
 Stagg V. Beekman, 2 Edw. Ch. 89, however, it was held that a direction in a 
 vrill for the investment, under the direction of the court, of a certain sum, for the 
 sole benefit of a person, discharged from all claim of his creditors, or if not pos- 
 sible, the fund to sink into the residue, could be carried into effect. In Pennsyl- . 
 vania, it is considered that there is nothing unlawful in a parent's making such a 
 provision for his child ; and it will be sustained', where the cestui que trust is him- 
 self excluded from the control of the property, though with no limitations over. 
 Ashhurst v. Given, 5 W. & S. 323 ; Vaux v. Parke, 7 W. & S. 19 ; Fisher v. Tay- 
 lor, 2 Rawie, 33 ; Norris v. Johnston, 5 Barr, 289; Eyrich v. Hetrich, 13 Penn. St. 
 R. 491. So in Kentucky. Pope v. Elliott, 8 B, Monr. 56. See, in Massachusetts, 
 Braraan v. Stiles, 2 Pick. 463. 
 
 "Eoyer's App., 11 Penn. St. R. 36; Bonsall's App., 1 RawIe, 273; Kauffiran 
 V. Crawford, 9 Watts & Serg. 131 ; Wolf v. Eichelberger, 2 Penn. R. 346; Eck- 
 ford V. De Kay. 8 Paige, 80 ; Rogers v. Patterson, 4 Paige, 409 ; Ex parte Crutch- 
 field, 3 Yerg. 335. But in a case of imminent necessity, a guardian may pur- 
 chase land with his ward's money. Bonsall's App., ub. supra; see Billingtons 
 App., 3 Rawle, 55; Royer's App., 11 Penn. St. R. 36; though see'Moore v. 
 Moore, 12 B. Monr. 190, contra. So in a proceeding in the Orphans' Court in par- 
 tition, where the heirs refuse to take the real estate at the valuation, and it is 
 ordered to be sold, the guardian of one of the minor heirs may purchase it for 
 
OF TRUSTEES FOR INFANTS. 569 
 
 having saved *3000?. out of the profits of his real estate, laid r-^oQ„-| 
 it out in the purchase of lands contiguous to the infant's L -^ 
 estate, with the consent of his guardian, and the infant died under 
 age, it was held by the Lord Chancellor, with Lord Chief Baron 
 Atkins and Lutwich, J., against the opinion of the Master of the 
 Rolls, that the trustees were not justified in making such an invest- 
 ment of their own authority, and that they should therefore account 
 to the infant's executors for the 3000Z.(c) 
 
 However, it has been laid down that trustees may change the 
 nature of the infant's estate under particular circumstances, where it 
 is manifestly for his advantage or convenience to do so ; and the 
 transaction will be supported, if the court would act so itself under 
 the same circumstances. (d) (1) But it is obviously very difficult to 
 
 (c) Earl of Winchelsea u. Norcliffe, 1 (rf) Inwood v. Twinne, Ambl. 419; 
 Vern. 434; see Gibson v. Scudamore, 1 S. C. 2 Ed. 147, 152: see Terry v. Terry, 
 Dick. 45. Free. Ch. 273. [Ante, note to page 375.] 
 
 (1) However, there are several cases which tend to establish the position, that 
 the court itself has no power to direct the sale or conversion of an infant's estate, 
 merely on the ground of its being for the infant's benefit. Thus in Taylor v. 
 Phillips, 2 Ves. 23, it was held that an infant's inheritance is never bound by 
 the act of the court. And in Simpson v. Jones, 2 R. & M. 365, where the court 
 had sanctioned a settlement of the leasehold estate of an infant ward on her mar- 
 riage, giving the trustees a power of sale, it was held by Sir J. Leach, M. R., that 
 the court had no authority to give such a power, and, consequently, that the 
 trustees could not make a good title. And in the very recent case of Calvert v. 
 Godfrey, 6 Beav. 97, a purchaser of an infant's estate under a decree of the 
 
 his ward, if it seems, it is necessary to prevent its being sacrificed. Bowman's 
 App., 3 Watts, 369. This, however, the court says, would be no conversion, as it 
 would merely be preserving to the ward, real estate descended. Id. 373. See, 
 also, as to the power to bind the ward's land by elegit, &c., in cases of necessity, 
 Ronald v. Buckley, 1 Brock. 356. At common law, the guardian can lease 
 during the period of his guardianship ; Field v. Schieffelin, 7 J. C. R. 150 ; Byrne 
 V. Van Hoesen, 5 John. 66^ Ross v. Gill, 4, Call. Va. 250; and, indeed, it is his 
 duty to do so for the benefit of the ward. Genet v. Talmadge, 1 J. C. R. 561. 
 -Permanent improvements are equivalent to a conversion, and are, therefore, not 
 within the guardian or trustee's power. Bellinger v. Shafer, 2 Sandf. Ch. 297 ; 
 see Alexander v. Alexander, 8 Alab. 796. Thus it has been held, that a guar- 
 dian cannot add a new part to the ward's mansion, to fit it for a tavern ; though 
 in the particular case, he was allowed in his accounts, a credit for the improved 
 rent. Miller's Est., 1 Barr, 326. But in Hood v. Bridport, 11 Engl. L. & Eq. 271, 
 the court ordered a reference to inquire whether it would be for the interest of 
 an infant petitioner to expend money in repairs of real estate, of which he was 
 tenant in tail in expectancy. And an allowance for permanent improvements 
 may be made, where obviously for the infant's benefit. Jackson v. Jackson, 1 
 Gratt. 143. For purposes of sale and disposition, the power of a guardian 
 over his ward's personal estate, however, is as full as that of an executor ; and 
 the purchaser is in no greater degree liable for the application of the money. 
 Field V. Schieffelin, 7 J. C. R. 150; Bank ofVa. v. Clegg, 6 Leigh, 399; see 
 ante, page 166, atid note. 
 
570 OF TRUSTEES, FOR INFANTS. 
 
 apply this rule with any degree of safety to any particular case ; and 
 no trustee could be advised to take upon himself the responsibility 
 of thus dealing with the infant's estate, but the express sanction of 
 the court for that purpose should always be obtained. 
 
 One reason appears to have principally influenced the court in 
 discountenancing the absolute conversion of the personal estate of an 
 infant into real estate. According to the old law, an infant at seven- 
 teen years might have disposed of his personal property, while he 
 had no such power over his real estate. Consequently the conversion 
 would have been prejudicial to him, by depriving him of the absolute 
 dominion over his property, which he would otherwise have enjoyed 
 at an earlier period ■,(«) and on this ground the court, even where it 
 has changed the nature of the infant's estate, has done it not to all 
 intents and purposes, but with this qualification, viz., that if the 
 infant lived he might take it as real estate, but without prejudice to 
 his right over it during infancy as personal property.(/) This reason, 
 
 (c) Earl of Wiiichelsea v. NorolifFe, (/) Sergesou v. Sealey, 2 Atk. 413, 
 
 1 Vera. 436; Pierson i;. Shore, 1 Atk. 4; Ashburton v. Ashburton, 6 Yes. 6: 
 480 ; Witter v. Witter, 3 P. Wms. 101; Ware v. Polhill, 1 1 Ves. 278 ; Ex parte 
 Ex parte Grimstone, Ambl. 708; Ex Phillips, 19 Ves. 123; Webb v. Lord 
 parte PhilMps, 19 Ves. 123. Shaftesbury, 6 Mad. 100. 
 
 court,' vpas discharged from his purchase, on the ground that the court had no 
 jurisdiction to sell or convert an infant's real estate upon the notion that it would 
 be beneficial. And again, in Peto v. Gardner, reported in 12th Law Journ. N. S., 
 Chanc. 371, 2 Y. & Coll., Ch. 312, it was held by Vice-Chancellor K. Bruce, 
 that the court had no jurisdiction to exchange personal properly belonging to 
 infants for other property to be settled on them, though the arrangement should 
 appear to be beneficial for the infants. And in the still later case of Garmstone 
 V. Gaunt, before the same learned Judge, it was held, that the court could not 
 order the sale of an infant's leasehold estate, on the notion of its being for his 
 benefit. [Reported, 1 Coll. 577. The jurisdiction of a court of equity in general 
 to direct Ihe conversion of an infant's estate, was asserted in the Matter of Salis- 
 bury, 3 John. Ch. 347 ; Huger v. Huger, 3 Desaus. 18 ; Stapleton v. Langstaff, Id. 
 22; but denied in Rogers v. Dill, 6 Hill, 415; see Williams's Case, 3 Bland, 186, 
 for a full discussion of this matter ; and the last note. In this country, however, 
 in most, if not all of the States, there are statutes authorizing the sale of an 
 infant's real estate, on application of the guardian, &c., where it is necessary, or 
 for the former's benefit. See in Pennsylvajiia, Acts of 1834, § 33 (3); (Dunlop, 
 476) ; of 1836, { 1 (Dunlop, 695) ; of 1851, 1. H (Dunlop, 1 133) ; and the recent act 
 of April 18, 1853. See, also, Garland v. Loring, 6 Rand. 396 ; Matter of Wilson, 
 
 2 Paige, 412; Pope v. Jackson, 11 Pick. 113; Talley t). Starke, 6 Gratt. 339; 
 DucketttJ. Skinner, 11 Ired. 431 ; Brown's Case, 8 Humph. 200; Peyton «. Alcorn, 
 7 J. J. Marsh. 500; Dow's Petition, Walkers Ch. 145; Young v. Keogh, 11 Illi- 
 nois, 642. There is no question but that a Slate Legislature may constitutionally 
 direct such a conversion. Snowhill v. Snowhill, 2 Green's Ch. 20; Norris i). 
 Clymer, 2 Barr, 277 ; Davis v. Johannot, 7 Mete. 388 ; Spotswood v. Pendleton, 4 
 Call, 514; Dorsey v. Gilbert, 1 1 G. & J. 87. But where land is so sold by the act 
 of the legislature, though the proceeds go to the personal representatives, (Snow- 
 hill V. Snowhill, ut supra,) they remain real estate as regards the guardian. Genet 
 V. Tallmadge, 1 J. C. R. 564.] 
 
OF TRUSTEES FOR INFANTS. 571 
 
 however, now no longer exists ; for the late "Will Act (1 Vict. c. 26, 
 s. 7), expressly does away with the power of an infant to make any 
 valid disposition of property by will. *And hence it may be r^ggrj--, 
 matter of doubt, whether the court would in future adhere L -• 
 with the same strictness to the old rule for the benefit of the infant's 
 heir. The observations which fell from Lord Bldon in Ware v. Pol- 
 hill,(^) seem to favor the inference, that the rule in question was 
 established for the protection of the relative interests of the real and 
 personal representatives of the infant ; but in Pierson v. Shore,(A) 
 Lord Hardwicke said, that the reason was, its being for the benefit 
 of the infant, " and not out of favor to any one representative more 
 than another." And in Oxenden v. Lord Compton(,i) it was laid 
 down, that there was no equity for the court to interfere as between 
 real and personal representatives, they being both equally volunteers. 
 In Ex parte Grimstone,(A;) the court refused to interfere as between 
 the two classes of representatives of a lunatic, on the ground that a 
 lunatic has precisely the same power of disposition over real as over 
 personal estate, which was not the case with an infant : and this dis- 
 tinction between infants and lunatics was admitted by Lord Lough- 
 borough in Oxenden v. Lord Compton,(Z) and was also recognised by 
 Lord Eldon, and followed as the principle of his decision in the case 
 of Ex parte Phillips.(m) This distinction has now ceased to exist in 
 consequence of the late alteration in the law, and these last cases are 
 therefore authorities for holding, that if an infant's real estate have 
 been actually converted, the court will not interpose on behalf either 
 of his real or personal representatives to restore it to its original 
 state; although, in directing the conversion to be made, it might still 
 be considered an open question, whether the court would so far re- 
 cognise the rights of the two classes of representatives, as to modify 
 the conversion according to the rule, which we have seen to have 
 been established and acted upon for the benefit of the infant him- 
 self. (1) 
 
 It is almost superfluous to add, that if the instrument, creating the 
 trust for the infant, contain any express direction as to the disposi- 
 tion of the estate, the express trust will override any general rule of 
 
 (g-) 11 Ves. 278; and see Rook v. 3 J. C. R. 347 ; Lloyd v. Hart, 2 Barr, 
 Worth, 1 Ves. 461. 477.] 
 
 (h) 1 Atk. 480. (i) Ambl. 706; S. C. 4 Bro. Q. C. 
 
 (i) 2 Ves. jun. 69, 70; S. C. 4 Bro. 235, n. 
 C. C. 201. [See Matter of Salisbury, (i) 2 Ves. jun. 75. 
 
 (m) 19 Ves. 122, 3. 
 
 (1) From the cases referred to in a note to the preceding page, it seems that 
 the jurisdiction of the court to direct the conversion of an infant's estate at all 
 cannot be maintained [in England] . 
 
572 OF TRUSTEES FOR INFANTS. 
 
 construction, which will prevail only in the absence of any positive 
 declaration on the point in question. (w) 
 
 In some instances the infancy of the cestui que trust necessarily 
 invests the trustees with a more extensive and absolute power over 
 the trust estate than they would take under ordinary circumstances. 
 Thus where an estate is vested in trustees in trust to sell, and 
 apply the money for the benefit of particular persons, the trustees in 
 ordinary cases, prior to the late act 7 & 8 Vict. c. 76, could not give 
 a valid discharge for the purchase-money without the concurrence of 
 the parties beneficially interested, (o) If, however, the cestui que 
 trusts were infants, or otherwise incapacitated, the trustees would 
 |-^oQo-i necessarily take by implication the power *of giving a dis- 
 charge to the purchaser ; for the power of sale would otherwise 
 be nugatory. (^) 
 
 Where an infant is absolutely entitled to a legacy or other sum of 
 trust-money, the trustee in whose hands it is vested, cannot safely 
 pay it over either to the infant himself, or to his father or any other 
 person on his behalf, without the sanction of the court ;^ and should 
 he do so, he will be liable to pay it over again on the infant coming 
 of age.(g') And a release taken from the infant will be wholly in- 
 operative, (r) If, however, the infant on coming of age do any act 
 clearly confirmatory of the payment made during his minority, he 
 will be estopped from afterwards claiming a repayment.(«) But the 
 intention to confirm the payment must be clear, and it will not ne- 
 cessarily be inferred merely from the acquiescence of the party after 
 attaining his full age, though continued for as long a period as four- 
 teen or fifteen years, (i) However, if an infant by means of /fraudu- 
 lent misrepresentations induce a trustee to pay over to him the trust 
 fund, he cannot take advantage of his own fraud and compel a repay- 
 ment on coming of age.(M) 
 
 By the statute 36 Geo. III. c. 52, s. 32, an executor is enabled 
 
 ^n) See Asliburton v. Ashbiirton, 6 (r) Overton v. Banister, 8 Jur. 996; 
 
 Ves. 6; Terry v. Terry, Free. Ch. 273. S. C. 3 Hare, 503. 
 [Rogers v. Dill, 6 Hill, N. Y. 415.] (s) Cooper v. Thornton, 3 Bro. C. C. 
 
 (o) 2 Sugd. V. & P. 45, 9tli ed. 97 ; Lee v. Brown, 4 Ves. 368; 1 Rop. 
 
 (p) Lavender v. Stanton, 2 Mad. 46; Legs. 771, 3d ed.; 2 Wms. Executors, 
 
 Sowarshy v. Lacy, 4 Mad. 142; Bree- 869 ; 1 Rop. Legs. 771 ; Cory v. Gertch- 
 
 don V. Breedqn, 1 R. & M. 413. ken, 2 Mad. 40. [See post, 526, note.] 
 
 (g) Dagley v. Tolferry, 1 P. Wms. (t) Dagley v. Tolferry, 1 P. Wms. 
 
 285; Phillips v. Paget, 2 Atk. 80; Da- 285; see Lee v. Brown, 4 Ves. 362. 
 vies V. Austen, 3 Bro. C. C. 178; Lee (u) Cory v. Gertchken, 2 Mad. 40; 
 
 V. Brown, 1 Ves. 369 ; Overton v. Ba- Overton v. Banister, 8 Jur. 996 ; S. C. 3 
 
 nister, 8 Jur. 996; S. C. 3 Hare, 503. Hare, 503. [See ante, 144, note 2.] 
 
 ' Furman v. Coe, 1 Caines' Cas. 96; Sparhawk v. Buck, 9 Verm. 41. Not even 
 to guardian, without security. Hoyt v. Hilson, 2 Edw. Ch. 202. 
 
OF TKUSTEES FOE INFANTS. 573 
 
 to discharge himself from all responsibility with respect to the pay- 
 ment of legacies due to infants, by payingthe amount, after deducting 
 the legacy duty, into the Bank with the privity of the Accountant- 
 Gen eral of the Court of Chancery to the account of the party en- 
 titled to it ; and it is directed, that the money shall be invested by 
 the Accountant-General in the three per cents., a transfer of which 
 may be obtained by the party entitled, on application to the court by 
 petition, or motion, in a summary way.(i;)' 
 
 Where the trust is for the payment of the money not to the infant 
 himself, hut to a guardian or trustee for him, the executor or trustee, 
 by whom the payment is to be made, will be justified in making over 
 the money to the infant's guardian or trustee, whose receipt, accord- 
 ing to the principle already considered, will be a good discharge for 
 the money so paid. (a;) And on this principle, where there is a be- 
 quest of lOOZ. to A. to be equally divided between himself and his 
 family, or for his and his children's use, A. is a trustee for the benefit 
 of his children, and a payment to him by the executors will be good 
 against the claims of the infant children. (?/) 
 
 It is the settled rule of the court, that trustees for infants ought 
 never of their own authority to break in upon the capital of the trust 
 fund *even for the advancement of the infant, and still less r=itqqQ-| 
 merely for bis maintenance.(2) 
 
 Therefore if the instrument creating the trust do not authorize an 
 application of the corpus of the fund in advancement and mainte- 
 nance, however advantageous it may be for the infant to make such 
 payments, this can be done with safety only under the sanction of 
 the court.^ In Walker v. Wetherell(a) a doubt was expressed by Sir 
 
 (u) 2 Wms. Executors, 867, 8; 1 96, & 186; Robinson «. Tickell, 8 Ves. 
 Hop. Legs. 767. 142. 
 
 (x) 2 Wms. Executors, 866 ; 1 Hop. {z) Walker v. Wetherell, 6 Ves. 474. 
 Legs. 771. Anon. Mosley, 41. 
 
 (2/) Cooper t). Thornton, 3 Bro. C. C. (a) 6 Ves. 474. [See Williams's case, 
 
 3 Bland. 186.] 
 \ ' — — • 
 
 ' In Farrance v. Viley, 9 Engl. L. & Eq. 219, the shares of infants in an estate, 
 under 20^ each, were directed to be paid at once to the parties maintaining them, 
 to save the expense of the above proceeding. So in How v. Ruxton, 1 1 Engl. L. 
 & Eq. 223, legacies of lOl. given to two infants for mourning, were directed to be 
 paid to the father, who had always maintained them, he undertaking to apply it 
 for the purpose. 
 
 ^ In general, the trustees or guardian can only apply the income of the infant's 
 estate to his maintenance and support. Davis v. Harkness, 1 Gilm. 173; Prince 
 V. Logan, Spear's Eq. 29; McDowall v. Caldwell, 2 McCord, Ch. 43; Davis v. 
 Roberts, 1 Sm. & M. Ch. W3 ; Hester v. Wilkinson, 6 Hump. 219; Villard v. 
 Chovin, 2 Strob. Eq. 40; Bybee v. Thorp, 4 B. Monr. 313; Carter v. RoUand, 11 
 Humph. 339;Cornwiset).Bourgum,2Geo. Dec. 15; Hargood i). Wells, iHill'sEq. 
 59. But in cases of necessity, payments out of the capital have been allowed 
 
574 OP TRUSTEES FOR INFANTS. 
 
 Wm. Grant, M. R., whetlier even the court upon petition could order 
 the capital of an infant's fund to be broken in upon for mere mainte- 
 nance, although it had frequently been done for the purpose of ad- 
 vancement. However, such an order was made in the earlier case of 
 Barlow v. Grant,(6) on the ground of the small amount of the fund. 
 And Sir Thomas Plumer, M. E., for the same reason made a similar 
 order on petition in Ex parte Green. (c) And Ex parte Chamber8,((i) 
 which was decided by Lord Lyndhurst, C, is an authority to the 
 same effect. (e) So that there appears to be no doubt as to the juris- 
 diction of the court to make such an order merely for the mainte- 
 nance of an infant upon a proper case being shown for its exercise. 
 And where the object is the advancement of the infant, there are 
 frequent instances, in which the court has directed the application of 
 the capital of his fortune for that purpose.(/) Indeed, payments for 
 such a purpose out of the capital have been allowed to trustees in pass- 
 ing their accounts, though made of their own authority, and without 
 the sanction of the court.{g) These, however, were earlier decisions, 
 which scarcely admit of being reconciled with the later authorities. 
 If trustees transgress the strict line of their duty by applying the 
 capital of the fund or any part of it to the maintenance or advance- 
 ment of the infant of their own authority, they will be decreed to pay 
 the whole amount of the fund without any deduction to the infant or 
 his assignee, upon his coming of age, notwithstanding they may have 
 acted bonafide and for the infant's benefit : for such payments ought 
 to be discouraged upon principles of general convenience.(/t) But 
 the court will not in every case fix the trustees with interest or the 
 costs of the suit although the decree be against them.(i) And there 
 seems to be authority for stating that a payment out of the capital 
 of an infant's fortune might be allowed to trustees ; though made by 
 
 (b) I Vera. 255. [See Ex parte Hays, Franklin v. Green, 2 Vera. 137; In re 
 13 Jur. 762; 3 De G. & Sm. 405; Ex England, 1 R. & M. 499; Ex parte 
 parte Allen, 14 Jur. 324; Matter of Best- Chambers, lb. 577. 
 
 wick, 4 J. C. R. 100.] (g) Barlow v. Grant, 1 Vein. 255; 
 
 (c) IJ. & W. 253. Franklin v. Green, 2 Vern. 137. 
 
 (d) 1 R. & M. 577. (A) Davies v. Austen, 3 Bro. C. C. 
 
 (e) And see Ex parte Knott, 1 R. & 178; Lee v. Brown, 4 Yes. 362; Wal- 
 M. 499 ; Ex parte Swift, lb. 575 ; Evans keri). Wetherell, 6 Ves. 473. [See ante, 
 V. Massey, 1 Y. & J. 196; Bridge v. note to page 395.] 
 
 Brown, 2 N. C. C. 181. (i) Lee v. Brown, 4 Ves. 369; vide 
 
 (/) Barlow v. Grant, 1 Vern. 255; post, Remedies for Breach of Trust. 
 
 Ex parte Potts, 1 Ash. 340 ; Ex parte Bostwick, 4 J. C. R. 100 ; Long v. Noroom, 
 2 Ired.Eq. 354 ; see Haygood ,v. Wells, Hill's Eq. 79 ; Maupin v. Dulany, 5 Dana, 
 593. Where the expenditm-e is for the purpose of education or advancement, it 
 will be more readily allowed. Maclin v. Smith, 2 Ired. Eq. 371 ; Carter v. Hol- 
 land, 11 Humph. 339. See this subject ably discussed in the notes to Eyre«. 
 Countess of Shaftesbury, 2 Lead. Cas. Eq. pt. ii. 267, &o. 
 
OF TRUSTEES FOR INFANTS. 575 
 
 them of their own authority ; if made for actual necessaries for the 
 infant's use.(fc) 
 
 It is almost unnecessary to remark, that where there is a discre- 
 tionary power in the settlement for the trustees to make advancements 
 to the children out of the capital, such an application of the trust 
 fund may he properly made. But the terms and restrictions an- 
 nexed to the power must be strictly observed ; and where the author 
 of the trust intended that the power *should be exercised only p^QQ-i 
 with the concurrence of the two trustees, an advancement made 
 by one of them only was not allowed in passing the accounts, although 
 that one had alone acted in the trust.(Z) 
 
 Where the trust fund is given over for the benefit of another per- 
 son in case of the death of the infant under twenty-one, no part of 
 the capital can be applied for the infant's advancement even by the 
 court, in the absence of an express power created by the trust instru- 
 ment, still less can the trustees so apply the fund of their own au- 
 thority.(?n) However, an advancement may be made in such cases, 
 if the parties entitled in remainder being competent, appear and give 
 their consent, (n) 
 
 Trustees cannot safely apply even the income of an infant's fortune 
 for his maintenance or benefit without the sanction of the court, un- 
 less they are expressly authorized to do so by the trust instrument. (o)^ 
 And even if the instrment contain a power or trust for maintenance, 
 yet if the direction be general, without specifying how much is to be so 
 applied, the uncertainty of amount will render an application to the 
 court requisite for the security of the trustees. (p) And the court in 
 such cases will fix the amount of maintenance with regard to the for- 
 tune and circumstances of the infant. (g') 
 
 These observations apply to those cases, where the property in 
 question is held simply for the absolute benefit of the infant. Where, 
 however, the infant does not take an absolute vested interest, or there 
 are other parties contingently or otherwise entitled in remainder, or 
 there is a direction for the accumulation of the income during the 
 
 (4) See Davies v. Austen, 3 Bro. C. (o) 1 Rop.Legs. 768, 3d ed. ; 2 Wras. 
 
 C- 178. Executors, 868. 
 
 (I) Palmeri;. Wakefield, 3 Beav. 227. (p) i Rop. Legs. 768. 
 
 (m) Lee v. Brown, 4 Ves. 362. [Van (g) 2 Rop. Legs. 241, and cases cited. 
 
 Vechten^. VanVeghten, SPaige, 104.] [Owens d. Walker, 2 Strob. Eq. 289; 
 
 (n) Evans v. Massey, 1 Y. & Jerv. 196. Ex parte Williams, 2 Coll. Ch. 740.] 
 
 ' See Van Vechten v. Van Veghten, 8 Paige, 104, that the trustee may either 
 apply it themselves, or pay it to guardian or parent. But the trustee must exer- 
 cise a discretion, and is not to place the funds directly in the hands of a benefi- 
 ciary who from his mental or moral condition is incapable of using it beneficially 
 himself. Mason v. Jones, 2 Barb. S. C. 248 ; Gott v. Cook, 7 Paige, 538. 
 
576 OF TRUSTEES FOR INFANTS. 
 
 minority of the infant, the existence of such circumstances affords 
 an additional reason why a trustee should refuse to apply the income or 
 any part of it in maintenance except under the direction of the court.' 
 However, where the gift has proceeded from the parent of the in- 
 fant,' ov a person in loco parentis,{r) and the subject of the trust is a 
 residuary personal estate, the court upon application has frequently 
 directed an allowance for maintenance in the absence of any power in 
 the will, although the infant had a contingent interest only in the 
 property in question ;(s) and notwithstanding an express direction for 
 accumulation. (<) And this has also been done even where the pro- 
 perty is given over to the other children on the death of the infant 
 under twenty-one, if the chance of survivorship be equal ;(m) although 
 if that be not the case, maintenance will not be given without the con- 
 sent of the parties entitled in remainder.(a;) 
 
 r*4.fl1 T *But maintenance in such cases will only be given where the 
 subject of the trust is a rmcZwari/persowaZ estate. For where 
 the infant's interest in real estate,{y) or in a particular trust fund{z) 
 is contingent, the intermediate income, until the happening of the 
 contingency, will belong to the testator's heir, in the one case, and 
 to his residuary legatee in the other. And it cannot be applied for 
 the infant's benefit, unless that application is directed or sanctioned 
 by the will. (a) 
 
 (r) Archerly v. Vernon, 1 P. Wms. 3 Russ. 264, n. ; Stretch v. Watkins, 1 
 
 783; Rogers v. Southen, 2 Keen, 598. Mad. 253. [Corbin w. Wilson, 2 Ashm. 
 
 [Corbin v. Wilson, 2 Ashm. 208.] 208; Newport^. Cook, Id. 342.] 
 
 (s) Incledon «. Northcote, 3 Atk. 433, (u) Fairman v. Green, 10 Ves. 48; 
 
 438; Harvey v. Harvey, 2 P. Wms. 22 ; Ex parte Kebble, 11 Ves. 604; Turner 
 
 Lambert v. Parker, Coop. 143; Brown v. Turner, 4 Sim. 434. [Newport v. 
 
 V. Temperley, 3 Russ. 263: Mills v. Cook, 2 Ashm. 332; see Matter of 
 
 Robarts, 1 Russ. & M. 555; Ex parte Ryder, 11 Paige, 125.] 
 
 Chambers, 1 Russ. & M. 577; Boddy v. (a;) Erratt v. Barlow, 14 Ves. 202; 
 
 Dawes, 1 Keen, 362 ; Fairman v. Green, Kime v. Welpitt, 3 Sim. 533 ; Turner v. 
 
 lO.Ves. 45; but see Lomox v. Lomox, Turner, 4 Sim. 430; Cannings u. Flower, 
 
 11 Ves. 48. 7 Sim. 523. 
 
 (/) Mole V. Mole, 1 Dick. 310; Green- {y) Green v. Ekins, 2 Atk. 476 ; Bul- 
 
 well V. Greenwell, 5 Ves. 194; Caven- lock v. Stones, 2 Ves. 521. 
 
 dish V. Mercer, lb. 195, n.; CoUis v. (z) Leake u. Robinson, 2 Mer. 384. 
 
 Blackburn, 9 Ves. 470; Fairman v. (o) See Bullock v. Stones, 2 Ves. 
 
 Greene, 10 Ves. 45 ; M'Dermotc. Kealy. 521. 
 
 ' Now, however, in Pennsylvania, by the Act of April 18, 1853, notwithstand- 
 ing any direction to accumulate rents, issues and profits for the benefit of any 
 minor or minors, the court may on the application of their guardian, where there 
 shall be no other means for maintenance and education, decree an adequate 
 allowance for such purpose, making an equal distribution amongst those who 
 have equal interests. A similar provision exists in New York, Rev. St. part II. Ch. 
 1, tit. 2, i 38; Id. tit. 4. { 5. 
 
OF TRUSTEES FOR INFANTS. 577 
 
 And the gift for the infant's benefit must proceed fromits parent, 
 or a person who has placed himself in the place of a parent. And 
 maintenance will be refused out of a contingent interest, or where 
 the fund is given over, if the gift proceeds from a stranger, or even 
 from a grandfather to his grandchild,(6) or where the infant is a 
 natural child, if not recognised and adopted by the father.(c) 
 
 Where an infant has an interest in two or more funds, but his in- 
 terest in one of them is more certain and indefeasible than that in 
 the other, it is the settled rule of the court to give the maintenance 
 in such manner as is most for the infant's advantage. And with this 
 view it will direct the income of that fund to be first applied, in 
 which the infant has the least certain interest. For instance, if the 
 infant be entitled to one fund absolutely, and to another fund con- 
 tingently on reaching twenty-one, or on any other Contingency, the 
 maintenance will be given first out of the income of the contingent 
 fund where it can be done consistently with the rules of the court. 
 Or, if he be entitled to one fund at twenty-five, and to another at 
 twenty-one, the income of the first-mentioned fund will first be ap- 
 plied for his maintenance, (ci)' 
 
 If the infant be absolutely entitled to the fund, and no adverse 
 question can arise for decision, the order for maintenance will be 
 made on petition without suit.(e)^ But if the interest of other par- 
 ties be implicated, the court will not act, except in a suit regularly 
 instituted. (/) 
 
 If the father of the infant be alive, and able to support his child, 
 trustees will not be justified in applying the income of the infant's 
 fortune for his maintenance, though a general power for maintenance 
 be given them by the trust instrument. For the father is by law 
 bound to support his children, and if their income were applied in 
 exoneration of his legal liability to maintain them, it would, in efi'ect, 
 
 (i) Errington«. Chapman, 12Ves. 20. Parte Salter, 3 Bro. C. C. 500; Ex parte 
 [SeeCorbin'y.Wilson,2Ashraead,208.] Mountfort, 15Ves. 445; Ex parte Star- 
 But see Greenwell v. Greenwell, 5 Ves. kie, 3 Sim. 339 ; Ex parte Chambers, 1 
 194. R.&M. 577; Ex parte Green, 1 J. & 
 
 (c) Lowndes D.Lowndes, 15Ves.301. W. 253 ; Ex parte Myerscoiigh, lb. 151. 
 
 (rf) Rawlins t). Goldfrap, 5 Ves. 440; [SeeExparteHays, 13 Jur.762; 3DeG. 
 
 Foljambe v. Willoughby, 2 S. & St. 165; & Sm. 4a5 ; Matter of Bostwiok, 4 J. C. 
 
 see re Ash}ey, 1 E. & M. 371 ; but see R. 105; Rice v. Tonnele, 4 Sandf. Ch. 
 
 Wynch v. Wynch, 1 Cox, 433. 571.] 
 
 (e) Ex parte Whitfield, 3 Atk. 315; (/) Fairman v. Green, 10 Ves. 45. 
 Ex parte Kent, 3 Bro. C. C. 88; Ex 
 
 ■ See Methold v. Turner, 3 Eng. L. & Eq. 168. 
 
 ' In Crop V. Brown, 7 Eng. L. & Eq. 58, an order for maintenance was made 
 on the appointment of a guardian, without petition. 
 
 37 
 
578 OF TRUSTEES FOR INFANTS. 
 
 amount to a gift to the father of so much as is necessary for their 
 maintenance. (^)^ 
 
 Therefore, wherever it is intended that the power of maintenance 
 should be exercisable in the lifetime of the father, and without re- 
 ference to his capability of supporting his children, this should be 
 expressly stated by the power.(A) However, this doctrine will not be 
 r*4021 ^PP^''^'^ *° **■ *positive trust for the application of the children's 
 income for their maintenance, where the trust is created by 
 the marriage settlement of the parents. For this will be treated as 
 a benefit, of which the father became the purchaser on his marriage ; 
 in such cases, therefore, the father will be entitled to have the in- 
 come arising from his children's fortune applied according to the 
 trust for their maintenance, without regard to his own ability.(i) 
 However, if the settlement contain no positive trust, but only a dis- 
 cretionary power for the trustees to apply the children's income for 
 their maintenance, the father cannot compel the trustees to exercise 
 this power in exoneration of his own liability.(A) 
 
 Where the interest of the children's fund is expressly given to the 
 father for their maintenance, the application of the general doctrine 
 is excluded by the terms of the trust ; and in that case the income 
 will be properly paid to the father by the trustees for the purpose 
 expressed ; such a gift is, in fact, one pro tanto for the benefit of the 
 father.(0' 
 
 {g) Andrews v. Partington. 3 Bro. C. C. 223 ; Meacher v. Young, 2 M. & K. 
 C. 60^ S. C, 2 Cox, 223 ; Thompson v. 490; Stocken v. Stoeken, 4 Sim. 152; 4 
 Griffin, Cr. & Phill. 317 ; but see Hoste M. & Cr. 95. 
 V. Pratt, 3 Ves. 730. (Jc) Thompson v. Griffin, Cr. & Ph. 
 
 (A) See Stephens v. Lawry, 2 N. C. 322. 
 C. 87. (/) Brown v. Casamajor, 4 Ves. 498 ; 
 
 (i) Mundy v. Lord Howe, 4 Bro. C. Hammond v. Neame, 1 Swanst. 35. 
 
 • Cruger v. Hey ward, 2 Desaus. 94; Matter of Kane, 2 Barb. Ch. 375; Bethea 
 V. McCoU. 5 Alab. 312; Sparhawk v. Buell, 9 Verm. 41; Walker v. Crowder, 2 
 Ired. Eq. 478 ; Chaplin v. Moore, 7 Monr. 173 ; Dupont v. Johnson, 1 Bail. £q. 
 279. This does not apply, it would seem, to a step-father; Gay i). Ballou, 4 Wend. 
 403 ; Freto v. Brown, 4 Mass. 675; but in Booth v. Sineath, 2 Strob. Eq. 31, an 
 allowance for maintenance and education of his ward, was refused to a step- 
 father, though she had lived with him, it appearing that he had expended nothing 
 therein. 
 
 2 Where the interest of legacies given to the parent, or the rents and proceeds 
 of shares of minor children are directed to be paid to the parent ''for" or "to- 
 wards" their respective maintenance and education; though with a directioa 
 that, in case of death under twenty-one, the share of each, with accumulations, 
 if any, shall go over to the survivors; the parent, having maintained the children, 
 is entitled to the proceeds without an account. Brown v. PauU, 1 Eng. L. & Eq. 
 130, 15 Jur. 5; Hadow v. Hadow, 9 Sim. 438 ; RainsfordiJ. Rainsford, Rice's Eq 
 343. But where a life estate was given to parents under a marriage settlement for 
 the maintenance of their children, and they became bankrupt, on petition, the 
 court directed the whole of the income of the trust estate to be applied to the 
 maintenance and support of children. Dalton's Settlement. 10 Eng. L. & Eq. 97. 
 
OF TRUSTEES FOR INFANTS. 579 
 
 It seems, that the doctrine in question does not apply to the mother 
 of the infants, for the mother is under no legal obligation to main- 
 tain the children ; therefore, if the father be dead, or be unable to 
 support the children, their income will be properly applicable for that 
 purpose, although the mother be living and has a competent separate 
 estate.* However, the point is not altogether free from doubt.(m) 
 
 Upon an application for an allowance for maintenance out of chil- 
 dren's fortunes in the father's lifetime, the court usually, in the first 
 place, refers it to the Master to ascertain the father's ability.(M) 
 And in determining that question, the circumstances of the parties 
 must, of course, be taken into consideration.(o) However, the order 
 for maintenance has occasionally been made at once without any re- 
 ference, in consideration of the poverty of the parties.(p) Where the 
 father is unable to maintain the children, an order may be made for pay- 
 ment of the children's income to him, though he be resident abroad.(9)^ 
 A trustee, who makes payments out of the income of the infants' 
 property for their maintenance upon his own responsibility, will be 
 liable to have such payments disallowed, if the court should be of 
 opinion that they were improperly made.(r) If, however, the cir- 
 cumstances are such that the court, upon application, would have di- 
 rected a similar payment, the act of the trustee will be supported, 
 although made without authority, and he will not be called upon to 
 account, and undo what had been done, merely because it was done 
 without application, (s) 
 
 (m) Billingsby v. Critchett, 1 Bro. C. (r) Andrews v. Partington, 3 Bro.C. 
 
 C.268; Haley u. Bannister, 4 Mad. 275, C.60; Gotham ti. West, 1 Beav. 381; 
 
 280; but see Smee v. Martin, Bunb. Bridge v. Brown, 2 N. C. C. 187. 
 
 j31_ (s) Lee v. Brown, 4 Ves. 369 ; see 
 
 (n) Hughes v. Hughes, 1 Bro. C. C. Barlow v. Grant, 1 Vern. 255; Franklin 
 
 386. [LucknowtJ.Brown, 12 Jur. 1017.] v. Green, 2 Vern. 137; 1 Rop. Legs. 
 
 (o) Jervoise v. Silk, Coop. 52. 768 ; 2 Wms. Executors, 869 ; Sisson v. 
 
 Ip) Payne v. Low, 1 R. & M. 223. Shaw, 9 Ves. 288 ; Maberly v. Turton, 
 
 (9) De Weever I). Rochfort, 6 Beav. 14, Ves. 499; Ex parte Darlington, 1 
 
 391,and cases cited. [See Carmichael Ball & B. 241. 
 V. Hughes, 6 Eng. L. & Eq. 71.] 
 
 ' Heyward v. Cuthbert, 4 Desaus. 445; Matter of Bostwick, 4 J. C. R. 100 ; 
 Whipple V. Dow, 2 Mass. 415 ; Dawes v. Howard, 4 Mass. 97 ; Douglass v. An- 
 drews, 12 Beav. 310, 14 Jur. 73; Bruin i). Knott, 1 Phill. 573, accord. 
 
 " Where the father is unable to support his child, the trustees are authorized 
 to apply the income without e.xpress power. Rice v. Tonnele, 4 Sandf. Ch. 57 1 ; 
 Bethea v. McColl, 5 Alab. 312; Corbin v. Wilson, 2 Ash. 178; Newport 1;. Cook, 
 Id. 337; Matter of Burke, 4 Sandf. Ch. 617. In some cases, allowances to the 
 father for past maintenance have been made. Corbin v. Wilson ; Newport v. 
 Cook; Carmichael v. Hughes, 6 Eng. L. & Eq. 71. So of the mother. Matter 
 of Bostwick, 4 J. C. R. 100; Bruin v. Knott, 1 Phill. 573. But, in England, it is 
 considered, that the father cannot have past maintenance, except there are spe- 
 cial circumstances; Reeves v. Brymer, 6 Ves. 454; and Sherwood v. Smith, Id. 
 454, were doubted Lord Cranworth in Carmichael v. Hughes, ut supr. 
 
580 OF TRUSTEES FOE INFANTS. 
 
 Where the annual amount to be paid for the infant's maintenance 
 is fixed by the trust instrument, that amount cannot be exceeded by 
 r*40S1 *^® *trustees,(f) unless they are invested wjth a power for 
 that purpose, (m) But if the infant be absolutely entitled to 
 the fund, and the circumstances of the case require it, as where the 
 prescribed amount is insufficient, the court, on a proper application 
 will increase the allowance, (a;) And this, though the infant's in- 
 terest is contingent, and there is an express direction for accuraula- 
 tion.(y) 
 
 A power for the maintenance of a daughter until twenty-one, is 
 not determined by her marriage during her infancy.(2) 
 
 Where there was a devise of lands to trustees to apply the rents, 
 &c., for the "maintenance, education and bringing up" of the chil- 
 dren of A. during A.'s life, the interest of the children is not con- 
 fined to their minority, but continues during A.'s life.(a) However, 
 it would be otherwise, if the trust were merely for the maintenance, 
 &c., of the children, without limiting the period during which the 
 payment was to continue ; for in that case it would be held to have 
 reference only to their minority. (6) 
 
 An infant will be entitled to the same remedies against the trustee 
 for a breach of trust, as if he were of full age. Therefore, where a 
 trustee employs the infant's money in his own business, the infant 
 will have the option of taking the profits made, or the interest :(c) or 
 in case of an investment on any improper security, the trustee will 
 be liable to make good to the infant any loss which may ensue -.[d) 
 and so in case of any other neglect or violation of duty on the part 
 of the trustee. 
 
 It appears to have been considered at one time that, as between 
 infants and third parties, the infant should not be prejudiced by the 
 laches of his trustee. For instance, where a stranger had entered 
 upon an infant's trust estate, and levied a fine, and the trustees suf- 
 fered five years to pass without claim, and the right of bringing an 
 ejectment was thus barred at law; on a bill filed by the infant on 
 coming of age against the disseisor, the court decreed the possession 
 and an account of profits, declaring that the fine and non-claim should 
 not run upon the trust in the infant's minority, nor he suffer for the 
 
 {t) See Hearle v. Greenbank, 2 Atk. (i/) Aynsworth v. Pratchett, 13 Ves. 
 
 697,716; Long i). Long, 3 Ves. 286, n. 321; Stretch v. Walkins, 1 Mad. 253; 
 
 (u) See Rawlins v. Goldfrap, 5 Ves. Josselyn v. Josselyn, 9 Sim. 63. 
 
 440. (z) Chambers v. Goldwin, 11 Ves. 1. 
 
 {x) Aynsworth v. Pratchett, 13 Ves. (a) Badham v. Mee, 1 R. & M. 631. 
 
 321 ; Allen v. Coster, 1 Beav. 202 ; Jos- (6) 1 R. & M. 632. 
 
 selyn v. Josselyn, 9 Sim. 63 ; Stretch v. (c) Anon. 2 Ves. 630. 
 
 Walkins, 1 Mad. 253. [Newport v. \d) Homes v. Bring, 2 Cox, 1 ; Terry 
 
 Cook, 2 Ashm. 373 ; Corbin v. Wilson, v. Terry, Free. Ch. 273. 
 Id. 178.] 
 
OF TRUSTEES FOE INFANTS. 581 
 
 laches of his trustee.(e) This, however, is now no longer law, and 
 there can he little question but that the acts of the trustee would 
 now bind the infant cestui que trust's rights against any third party 
 claiming bona fide ; although this of course would be without preju- 
 dice to the infant's remedy against his trustee on coming of age.^ 
 Thus in Wych v. East India Company,(/) it was held by Lord 
 Talbot, that an infant was bound by the neglect of his trustee to sue 
 for a debt within the time fixed by the Statute of Limitations, and 
 that he had no equity to sue the debtor when he came of age. And 
 in Earl of Huntingdon v. Countess of Huntingdon, (^) Lord Parker 
 was of opinion, that a fine and five years' non-claim, should, in favor 
 of a purchaser, bar *the cestui que trust, though an infant ; rj), ^ q^-i 
 an opinion, which, it will be observed, is in direct contradic- ^ 
 tion of the decision in Allen v. Sayer.(A) 
 
 Trustees for infants, as well as other trustees, are entitled to be 
 paid all reasonable expenses incurred in the conduct of the trust, 
 without any order of the court for that purpose ;(i) although they 
 cannot claim any compensation for personal trouble or loss of time.(fc) 
 
 Trustees for infants will not be liable for any accidental loss of the 
 trust property, which happens through no default of theirs ; for they 
 are bound but to keep it as their own. Thus where a trustee for an 
 infant plaintifi" was robbed of iOl. in money, which he had received 
 for the infant, and also at fhe same time of a larger sum of his own, 
 the iOl. was allowed to him in his accounts upon his own affidavit. (Z) 
 
 A trustee of an infant's real estate, who is invested with general 
 powers of superintendence and management, will be allowed all ex- 
 penses of repairs and other improvements of the property.(m) And 
 this though the payments be made out of the surplus rents which are 
 directed to be accumulated :(n) and although the allowance be op- 
 posed by the first tenant in tail in esse.{o) But there might be a 
 serious question, whether such payments could be allowed to a trus- 
 tee, who is not invested with any authority, either general or special, 
 for so applying the fund.(p) 
 
 Every carefully drawn trust instrument contains an express di- 
 rection to accumulate the income of the infant's trust fund, which 
 may not be required for maintenance. But in the absence of such a 
 
 (e) Allen v. Sayer, 2 Vern. 368. (I) Motley v. Morley, 2 Ch. Ca. 2. 
 
 (/) 3 P. Wms. 309. (m) Bowes v. Earl of Strathmore, 8 
 
 (g-) 3 P. Wms. 310, n. Jur. 92. 
 
 (A) Vide supra, p. 253. (n) Ibid. 
 
 (i) Brocksopp v. Barnes, 5 Mad. 90 ; (o) Ibid, 
 
 see Fearns v. Young, 10 Ves. 184. (p) Vide post, Div. IL, Ch. V. p. 570, 
 
 (A;) Brocksopp w. Barnes, 5 Mad. 90; [ante, note to page 395.] 
 re Ormsby, 1 Ball & B. 189. 
 
 » Williams v. Otey, 8 Humph. 563 ; Smilie v. BifHe, 2 Barr, 52. 
 
582 OP TRUSTEES FOE MARRIED WOMEN. 
 
 positive direction, it will be equally the duty of the trustees to make 
 this accumulation. And where the subject of the trust is a residue 
 of a testator's personal estate, the intermediate income, until the 
 period of payment, must be accumulated for the infant's benefit, 
 although the infant has only a contingent interest in the fund in the 
 event of his attaining twenty-one. As where the trust is for a child, 
 if or when it should reach twenty-one.(g') But this rule will not be 
 extended to a particular contingent interest, such as a specified sum 
 of money. But the intermediate income will in that case fall into 
 and make part of the residue. (r) Nor will the rule apply to the 
 income of real estate, which will belong to the testator's heir-at-law, 
 until the happening of the contingency, on which the infant becomes 
 entitled ;(s) unless indeed there is a direction for the application of 
 the intermediate income for the infant's benefit.(i) 
 
 Where an infant takes an immediate vested interest in the subject 
 of the trust, and the period of payment only is postponed, with a 
 direction for accumulation until that time arrives, the infant will be 
 absolutely entitled to the fund upon reaching twenty-one, and the 
 trust for accumulation will then cease ; although the testator has 
 fixed any later period — as, for instance, *the age of twenty- 
 L -* five, for the time of payment, and has directed the income to 
 be accumulated until that time.(M) 
 
 It has been already stated, that trustee's will be liable to be charged 
 with compound interest, where they misapply the trust fund in con- 
 travention of an express trust to accumulate.(a:) 
 
 VIII. — OF TRUSTEES FOR MARRIED WOMEN. 
 
 1st. Of Real Estate held in Trust for a Married Woman [405]. — 2d, As to 
 Peesokal Estate held in Trust for a Married Woman [407]. ' 
 
 1st, Of Seal Estate held in Trust for a Married Woman. 
 
 At law, husbands take a qualified interest in the real estate of 
 their wives, and wives have also a qualified power of disposing of 
 their real property, notwithstanding the ordinary disability of cover- 
 ture. Equity has adopted the same rules with regard to the equi- 
 table interests of married women in real estate ; and the husband 
 
 (g) Green v. Ekins, 2 Atk. 473 ; Stud- holme u. Hodgson, 3 P. Wms. 299 ; see 
 
 holme V. Hodgson, 3 P. Wms. 299; 305. 
 
 Trevanion v. Vivian, 2 Ves. 430 ; Bui- («) Bullock v. Stones, 2 Ves. 521. 
 lock V. Stone, Id. 521. [See Ware v. («) Saunders ti.Vautier, 4 Beav. 115; 
 
 • McCandlish, 1 1 Leigh, 595.] S. C. Cr. & Ph. 240. 
 
 (r) Leake v. Robinson, 2 Mer. 384. {x) Ante, PI. V. [Of Investment, p. 
 
 (s) Green v. Ekins, 2 Atk. 476: Bui- 374, and note] ; vide post [Remedies 
 
 look V. Stones, 2 Ves. 521; see Stud- for Breach of Trust, p. 523.] 
 
OF TRUSTEES FOK MAREIEB WOMEN. 583 
 
 will take the same amount of interest, and the wife the same power 
 of disposition, as in the case of legal interests. 
 
 Thus a husband, having had inheritable issue by his wife, will take 
 an estate by curtesy in her equitable estates of inheritance ;(«/)* and 
 the act of marriage gives him an estate for the joint lives of himself 
 and his wife in all the freehold estate, whether legal or equitable, to 
 which she is entitled, or may become entitled, during the coverture, 
 provided his interest be not bound by any settlement.(3) Therefore, 
 as incident to this estate, he or the parties claiming by conveyance from 
 him, will be entitled to receive the rents and profits during its continu- 
 ance without making any previous settlement on the wife : and the 
 wife in general has no equity for a provision out of her equitable inte- 
 rest in real estate, not consisting of terms for years, although, as we shall 
 presently see, that equity will attach on such parts of her personalty, 
 as can be reached only through the medium of a court of equity.(af 
 
 {y) Watts V. Ball, 1 P. Wras. 108; (z) 1 Rop. Husb. &Wife,3. [2 Kent's 
 
 Casborne v. Scarfe, 1 Atk. 603 ; Morgan Comm. 134.] 
 
 V. Morgan, 5 Mad. 408. And it is im- (a) Fitzer v. Fitzer, ? Atk. 514 ; Lup- 
 
 material that the wife takes an estate ton v. Tempest, 2 Vera. 626. 
 for her separate use for life, Ibid. 
 
 ' 4 Kent's Comm. 30; Cochran v. O'Hern, 4 W. & S. 95; Robinson v. Codraan, 
 1 Sumner, 121 ; Shoemaker v. Walker, 2 S. & R. 554; Norman v. Cunningham, 
 5Gratt. 67; Mullany ■«. Mullany, 3 Green, Ch. 16; Norton v. Norton, 2 Sandf. 
 Sup. Ct. 298; Davis v. Mason, 1 Pet. S. C. 508. So, though the vrife takes an 
 estate for her separate use during her life. Cochran v. O'Hern, 4 W. & S. 95 ; 
 Payne D. Payne, 11 B. Monr. 139; Mullanyw. Mullany, SGreen, Ch. 26;Rochon 
 V. Lecatt, 2 Stew. Alab. 429. But where, in addition to the separate use, there is 
 a distinct expression of intention to exclude the husband in the trust, it is other- 
 wise. McChord's trustees V. Booker, 6 Dana, 260; Cochran v. O'Hern, 4 W.& S. 
 95; Rigler v. Cloud, 14 Penn. St. R. 361 ; Stokes v. McKibbin, 13 Id. 267. See 
 the remarks of Gibson, C. J., in this latter case. In Mullany v. MuUany, 2 
 Green, Ch. 16, however, a different doctrine was held, though that was a case 
 where thpre was a direct devise of the legal estate to the wife. The statutory 
 provisions, in various States, by which the property of married women has been 
 removed from the control of their husband, have, however, very materially al- 
 tered the law on this and many of the other doctrines contained in the following 
 pages. 
 
 ^ This distinction seems now overruled in England, and the wife's equity to a 
 settlement sustained, as well against real as personal estate. Sturgis v. Champ- 
 neys, 5 Myl. & Cr. 97. In that case, the assignee of an insolvent' debtor, whose 
 wife was entitled to a life interest in real estate, was obliged, on account of the 
 legal estate being in a mortgagee, to come into equity to enforce his title to the 
 rents, and it was held by the Lord Chancellor, that he was bound to make a set- 
 tlement on the wife. This case was followed reluctantly by V. Ch. Wigram in 
 Hanson v. Keating, 4 Hare, 1 ; but was highly approved by Sir Knight Bruce, V. 
 Ch., in Newenham v. Pemberton, 11 Jur. 1071; 1 De G. & Sm. 644, where the 
 interest of a wife, tenant in tail in possession, but with a jointure term outstand- 
 ing, was held to be so far equitable as to entitle the wife to a settlement; see also 
 Freeman v. Fairlee, 1 1 Jur. 447. Where, however, a husband and wife mort- 
 
584 OF TRUSTEES FOR MARRIED WOMEN. 
 
 However, the assignees of a bankrupt husband do not stand in so 
 favorable a situation in this respect as a particular assignee from 
 him ; for it has been decided, that as against the assignees in bank- 
 ruptcy, the wife's equity for a provision attaches upon all her equi- 
 table estate, whether real or personal. (S) 
 
 A fine, levied by a husband and wife of her trust real estate, will 
 bind the wife's interest, though she afterwards dissent from the act 
 (unless, indeed, a case of fraud be established), and the trustees will 
 be compelled to convey to the party taking under the fine.(c) And 
 now by the Fines and Recoveries Act (3 & 4 Will. IV. c. 74, s. 77), 
 a disposition by a married woman of her equitable interest in real 
 estate, when acknowledged by her according to the provisions of the 
 statute, will have the same effect as a fine under the old law.^ 
 
 *It was at one time settled, that a husband might dispose 
 L -I of the trust of a term of years belonging to his wife to the 
 same extent as if she had the legal estate ; and equity would compel 
 the Irustees to assign to the assignee of the husband, although it was 
 
 (6) Burden v. Dean, 2 Ves. jun. 607; (c) Penne v. Peacock, Forr. 41. 
 Oswell V. Probeit, Id. 680 ; Freeman u. 
 Parsley, 3 Ves. 421 ; [post, 410.] 
 
 gaged the freehold estates of the wife in trust, and the husband subsequently 
 took the benefit of the Insolvent Act, his assignees were held entitled to recover 
 the amount beyond what was due to the mortgagee without any settlement; 
 Sturgis v. Charaptleys not applying to the case. Clark v. Cook, 3 De G. & 
 Sm. 333. 
 
 In the United States, the equity of the wife has been, in general, spoken of as 
 referring to personal property. In Haviland v. Myers, 6 J. C. R. 25, 136, how- 
 ever, it was held to apply equally to real and personal estate ; and this was ap- 
 proved in Rees v. Waters, 9 Watts, 90; Rorer v. O'Brien, 10 Barr, 212, and 
 seems implied from Thomas v. Sheppard, 2 McCord's Eq. 36. But in Van Duzer 
 V. Van Duzer, 6 Paige, 368; and Wickes v. Clarke, 8 Id. 172, the distinction ap- 
 pears to be asserted, so far, at least, as to deny the wife any equity against the 
 husband's life estate in her land. In the latter case, indeed, where an insolvent 
 husband had made a settlement of his wife's real and personal estate in trust for her, 
 and her children, the Chancellor, on a bill, by creditors, to set aside the settlement, 
 upheld it, as regards the personalty, as being only such as the court would have 
 made ; but set it aside so far as regarded the husband's curtesy, without any pro- 
 vision for her. In Hill v. Hill, 1 Strob. Eq. 2, it was held, that where the pro- 
 ceeds of a married woman's real estate remained in court, the equity to a settle- 
 ment attached. See also the remarks in Carleton ■«. Banks, 7 Alab.35; and Story 
 on Equity, ^ 1409, &c. 
 
 ' This statute has not narrowed the previous rights of married women. They 
 may bar, or convey in all cases in which they could bar or convey, before the 
 Act. But a deed, duly acknowledged and recorded under that act, will not pass 
 a married woman's interest in a fund to be raised out of real estate on the death 
 of a tenant for life. Hobby v. Allen, 15 Jur. 835; 3 Engl. L. & Eq. 166. For 
 the mode of conveyance by deed, separately acknowledged, in use in the 
 United States, see 2 Kent's Comment. 115, &c. ; 1 Greenl. Cruise. 171. 
 
OF TRUSTEES FOR MARRIED WOMEN. 685 
 
 objected that he had made no settlement or provision for his v/ife.{d) 
 And the rule was the same, though the wife had but a contingent 
 reversionary interest in the trust term.(e) However, this rule is now 
 altered, and it has been settled, by recent decisions, that the wife's 
 equity for a settlement attaches on her chattels real as well as on her 
 other personal estate. (/) 
 
 Where a judgment is given to a trustee for a woman, who marries, 
 and enters into possession of the land extended upon the judgment, the 
 husband may alone make a valid assignment of the extended interest.(^) 
 
 But in equity, the right of the husband to his wife's real estate, 
 whether legal or equitable, may be efifectually excluded by a limita- 
 tion to her separate use : and according to the terms of the limitation, 
 this exclusion may either extend to the whole of the husband's inte- 
 rest, whether in the lifetime of the wife, or after her death ;(A) or it 
 may be confined to the life of the wife, in which last case he may, not- 
 withstanding, be entitled to an estate by curtesy after her death. (i) 
 
 However, the intention to exclude the husband must appear dis- 
 tinctly from the terms of the limitation, and a simple gift or settlement 
 upon her, or trustees for her, will not have that eflFect. (7c) The suffi- 
 ciency of particular expressions to create such a separate interest in the 
 wife will be discussed presently in treating of the wife's personal estate. (Z) 
 
 Keal estate, limited to separate use of a married woman, is more 
 usually and properly secured to her by vesting it in trustees. This, 
 however, is not absolutely necessary ; and if there be a clear trust 
 for the separate use of a feme, although the property be given to her 
 directly without the interposition of trustees, and the husband thus 
 becomes entitled at law, equity will consider his conscience affected 
 by the direction, and will treat him as a trustee for his wife.(my And 
 
 (d) Sir Ed. Tamer's Case, 1 Vera. 7 ; (g-) Lord Carteret v. Wyndham, 3 P. 
 Phtv. Hunt, Id. 18; Tudor i). Samyre, Wms. 200. 
 
 2 Vera. 207; Parkert). Wyndham,Prec. (h) Bennet ti. Davis, 2 P. Wmp. 316; 
 
 Ch. 419; Sanders v. Page, 3 Ch. Rep. ante. 405 n. 
 
 223; Bates w. Dandy, 2 Atk. 208; Jew- (ij Roberts v. Dixwell, 1 Alk. 606; 
 
 son V. Moulson, Id. 421; Lord Carteret Morgan v. Morgan, 5 Mad. 408, over- 
 
 V. Wyndham, 3 P. Wms. 200 ; Macau- ruling Hearle v. Greenbank, 3 Atk. 715. 
 
 ley V. Phillips, 4 Ves. Jr. 19. (4) Lamb v. Millies, 5 Ves. 517 ; Tyler 
 
 (e) Donue I). Hart, 2 R. & M. 360. u. Lake, 4 Sim. 144; S.C.2R.&M. 183. 
 (/) Sturgis V. Champn'eys, 5 M. & Cr. {I) Post, p. 420, and note. 
 
 97; Hanson v. Keating, 14 Law Journ. (m) Bennet v. Davis, 2 P. Wms. 316; 
 N. S. Chanc. 14; [4 Hare, 1; Carleton Lee v. Prieaux, 3 Bro. C. C. 383; Par- 
 ti. Banks, 7 Alab. 35 ; Story, Eq. Jur. § ker o. Brooke, 9 Ves. 583 ; Rich v. 
 1410. Where, however, the husband Cockell, Id. 375; Darley v. Darley, 3 
 mortgages the legal interest in the term, Atk. 399; Baggett v. Meux, 13 Law 
 on foreclosure, the wife has no equity; Journ. N. S. Chanc. 228. [1 Phillips, 
 Hill V. Edmonds, 16 Jurist, 1133.] Vide 627.] 
 post, p. 410. 
 
 ' Shirley v. Shirley, 9 Paige, 364 ; Jamison v. Brady, 6 S. & R. 466 ; Trenton 
 
586 OF TRUSTEES FOR MARRIED WOMEN. 
 
 it is no objection to a trust for the wife's separate use, that the hus- 
 band is himself appointed one of the trustees for her.(?i) However 
 it may be remarked that in the first case that occurred on this sub- 
 ject, Lord Cowper expressed some doubt, -whether a devise of real 
 estate directly to a feme coverte for her separate use would raise an 
 equity against the husband to deprive him of his legal right to the 
 enjoyment of the property.(o) The husband himself may, by a clear 
 _. . .„ act or *declaration constitute himself a trustee for his wife's 
 •- J separate use,(p) and it is also unquestionably competent for 
 him to make a valid gift of property to trustees for the same purpose.(o) 
 
 However, itis undoubtedly the more proper, as well as the more 
 usual course, to vest the property in trustees, instead of making a 
 direct gift to the wife herself. And where there is a limitation to 
 trustees to the separate use of a married woman, the courts will strive 
 to adopt the construction which is most for her advantage, by hold- 
 ing it a trust vesting the legal estate in them, and not a use executed 
 by the statute in her.(r) 
 
 Where the legal estate is vested in trustees for a married woman 
 for life, with limitations over in remainder after her death, the trust 
 for the benefit of the wife constitutes an additional reason why the 
 trustees should retain the possession and management of the estate, 
 rather than deliver it over unprotected to the control of the hus- 
 band.(s) 
 
 The powers and duties of trustees with regard to the management 
 and disposition of real estate, held in trust for a married woman, 
 will be considered more conveniently in discussing their powers and 
 duties as to her personal estate. 
 
 (n) Kensington v. Dollond, 2 M. & K. (5) Ibid. [See Rigler v. Cloud, 14 
 
 184. Penn. St. R. 361.] 
 
 (0) Harvey v. Harvey, 1 P. Wms. (r) Harton v. Harton, 7 T. E. 652 ; 
 
 125; S. C. 2 Vern. 659 ; and see Bur- see Nevill v. Saunders, 1 Vern. 415; 
 
 ton V. Pierpont, 2 P. Wms. 79. Bush v. Allen, 5 Mod. .63 ; Oswell v. 
 
 (p) Maclean v. Longlands, 5Ves. 71; Probert, 2 Ves. jun. 680; Hawkins v. 
 
 Walter v. Hodge, 2 Sw. 104. [Sledge's Luscombe, 2 Sw. 391 ; vide supra, Pt. 
 
 Adm'rs. v. Clopton, 6 Alab. 599 ; Shep- H. Ch. I. 
 
 pard V. Sheppard, 7 J. C. R. 57.] (s) Tidd v. Lister, 5 Mad. 432, 3; 
 
 ante, Pt. H. Ch. HI. 
 
 Banking Co. v. Woodruff, 1 Green, Ch. 118 ; Steel v. Steel, 1 Ired. Eq. 452; Boy- 
 kin V. Ciples, 2 Hill's Eq. 200 ; Hamilton v. Bishop, 8 Yerg. 33 ; Franklin v. Crayon, 
 1 Harp. Eq. 243; McKennan v. Phillips, 6 Wharton, 571; Porter v. Bank of 
 Rutland, 14 Verm. 410 ; notes to Hulme v. Tenant, 1 Lead Cas. Eq., 1st Am. Ed. 
 378 ; 2 Kent's Comm. 152. See Blanchard v. Blood, 2 Barb. S. C. 352. 
 
 A husband, who has charge of his wife's separate estate, comes within the or- 
 dinary rule which prevents a trustee from obtaining any advantage from his 
 management of the trust property, and he, therefore, cannot traffic therewith, 
 buy in incumbrances, or the like, e.xeept for her benefit. Methodist Church v. 
 Jaques, 3 J. C. R. 77; Dickinson «. Codwise, 1 Sandf. Ch. R. 214. 
 
OF TRUSTEES FOR MARRIED WOMEN. 587 
 
 2d. As to Personal Estate held in Trust for a Married Woman. 
 
 The act of marriage operates at law as an absolute gift to the hus- 
 band of all chattels personal belonging to the wife : and also of her 
 chattels real and choses in action, if reduced into possession in his 
 lifetime :(t) and where he can recover the possession of the property 
 at law, equity will not in general control him in the exercise of his 
 legal rights, (m) And if the husband have once acquired actual pos- 
 session of the personal property to which his wife was entitled in 
 equity, the court will not afterwards undo what has been done, or 
 compel the husband to refund any part of the property, or to make 
 a settlement out of it in favor of his wife. (a;) 
 
 Therefore, if a sum of stock or money be vested in trustees for a 
 married woman, or a bond or other debt be assigned to her, the trus- 
 tees, or the obligee, or debtor, may safely pay or transfer the fund 
 to the husband alone, if no suit has been instituted for the adminis- 
 tration of the trust. And such a payment or transfer cannot after- 
 wards be questioned by the wife, though she survive her,husband.(?/) 
 
 But it has long been an established doctrine of equity, that where 
 a husband is obliged to come to the court to obtain possession of the 
 personal property of his wife, he will not in general receive the as- 
 sistance of the court for that purpose, except on the terms of ^^ . „„., 
 making an adequate *provision for her,(zy and for this purpose ^ J 
 
 (0 Co. Litt. 300; 1 Rop. Husb. & u. Whorwood, 1 Ves. 539; 1 Rop. Husb. 
 
 Wife, 166, 201 ; Laiigham v. Nenny, 3 & Wife, 271, 2. 
 
 Ves. 469. [4 Kent's Comm. 1341, 43; see (x) 1 Rop. Husb. & Wife, 270. 
 
 Murphy v. Grice, 2 Dev. & Batt. Eq. (j/) Murray v. Lord Elibank, 10 Ves. 
 
 199.] 90; Glaister v. Hewer, 8 Ves. 206. 
 
 (u) Burden u. Dean, 2Ves. Junr. 608, (z) Langham v. Nenny, 3 Ves. 469; 
 
 9; Oswell v. Probert, Id. 682; Murray Franco v. Franco, 4Ves. 515; Blountu. 
 
 V. Lord Elibank, 10 Ves. 90 ; Au.-Gen. Bestland, 5 Ves. 515; Elibank v. Monto- 
 
 lieu, Id. 737. 
 
 ' Carters. Carter, 14 Sm. & M. 59; Carleton v. Banks, 7 Alab. 34; Van Duzer 
 V. Van Duzer, 6 Paige, 368 ; Rees v. Waters, 9 Watts, 90 : Thomas v. Sheppard, 
 2 McCord's Ch. 36; Whitesides v. Dorris, 7 Dana, 107. But where a fund 
 arising from a decedent's estate is in court, a payment by a commissioner or 
 master to the husband of one of the distributees of his wife's share, is wrongful, 
 and will not defeat her equity. Wardlaw v. Gray's Heirs, 2 Hill's Ch. 651. So of 
 a payment by the trustee or executor in whose hands the property is, pending a 
 litigation for the purpose of obtaining a settlement. Crook v. Turpin, 10 B. Monr. 
 243. And where a husband has actually reduced his wife's property to posses- 
 sion, but suffered it, under an invalid deed of separation, to go into the hands of 
 a third person, to be kept for her, and then afterwards instituted a suit to recover 
 it, it was held that her equity attached. Carter w. Carter, 14 Sm. & M. 59. So in 
 general where the husband obtains possession of the property by fraud. 2 Spence, 
 Eq. Jur. 488, citing Colmer v. Colmer, 2 Atk. 98; Moseley, 113; Watkyns ij. 
 Watkyns, 2 Atk. 96. 
 'The equity of a wife to a settlement out of her personal property (as to real 
 
588 OP TRUSTEES FOR MARRIED WOMEN. 
 
 it is immaterial that she is separated from her husband. (aV And 
 the same equity will be enforced agajnst all persons claiming under 
 the husband — whether assignees claiming by operation of law on his 
 bankruptey,(5) or taking under some particular disposition or assign- 
 ment, either made voluntarily, (c) or for valuable consideration :((i) 
 although the doctrine of the court appears at one time to have been 
 somewhat unsettled as to the effect of an assignment for valuable 
 consideration. (e) 
 
 The trustees may therefore refuse to make over the wife's fund to 
 the husband, until he has made some settlement upon her ; for by 
 insisting on such a condition, they would be doing only what the 
 
 (a) Eedes v. Eedes, 10 Law Journ. v. Jolinson, 1 J. & W. 487; Jewson v. 
 
 N. S. Chanc. 199; [11 Sim. 569.] Moulson, 2 Atk. 420. 
 
 (6) Oswell V. Probert, 2 Ves. jun. (d) Earl of Salisbury v. Newton, 1 
 
 680; Mitford v. Mitford, 9 Yes. 87; Ed. 370; Like u. Beresford, 3 Ves. 506; 
 
 Wright V. Morley, 11 Ves. 101. [Dunk- Macauley w. Phillipps, 4 Ves. 19; Pryor 
 
 ley B. Dunkley, 13 Engl. L. & Eq. 318; v. Hill, 4 Bro. C. C. 139; Johnson v. 
 
 Napier v. Napier, 1 Dr. & Warr. 410; Johnson, 1 J. & W. 476, 7. [This is 
 
 Mumford v. Murray, 1 Paige, 620 ; Shaw clear in the United States ; Kenny v. 
 
 V. Mitchell, Davies,'216; Crook's Ex'rs. Udall, 5 J. C. R. 464; 3 Cowen, 591, and 
 
 ■u. Turpin, 10 B. Monr. 244; see notes see the cases collected in ihe note to 
 
 to Murray v. Lord Elibank, ut supra.] Murray v. Lord Elibank, ut supra, 352.] 
 
 (c) Burnet u. Kynaston, 2 Vern. 401 ; (c) See Worrall v. Marlar, and 
 
 Mitford ?;. Mitford, 9 Ves. 99; Johnson Bushnan v. Pell, 1 P. Wms. 459, n.; 
 
 et vide post. 
 
 estate, see ante, 405), is recognised in most of the United States; as New York, 
 Maryland, South Carolina, Georgia, Kentucky, Maine, Vermont, Tennessee, Ala- 
 bama (see cases collected in the note of Mr. Wallace to Murray d. Lord Elibank, 
 1 Lead. Cas. Eq. 348, 1st Am. Ed.), Mississippi, Carter v. Carter, 14 Sm. & M. 
 59; New Jersey, Stevenson v. Brown, 3 Green's Ch. 503; Pennsylvania (though 
 formerly thought not to exist, for want of a Court of Chancery, Yohe v. Barnelt, 
 1 Binn. 358) ; Eees v. Waters, 9 Watts, 90; Rorer v. O'Brien, 10 Barr, 262; Tyson's 
 App., 10 Barr, 224; the mode there being in the common law courts, to impose 
 terms on the recovery by the husband or his assignee; Ibid, (and see as to share of 
 wife on proceedings in partition, Act of 1832, ^ iS , of 1847, § 1 ; Dunlop, 483, 982 ; 
 where security is to be given ; though this does not apply to legacies ; Lowman's 
 Appeal, 3 W. & S. 350); Massachusetts, as far as the equity powers of the court 
 will admit, Davis v. Newton, 6 Metcalf, 537; Gassett v. Grout, 4 Id. 486; and 
 Virginia, see notes to Murray v. Lord Elibank, ut supra. In New Hampshire 
 and North Carolina, this equity is not recognised. Parsons v. Parsons, 9 N. H. 
 309; Bryan v. Bryan, 1 Dev. Eq. 47; Lassiter v. Dawson, 2 Id. 383, reconsidered 
 and affirmed in Allen v. Allen, 6 Ired, Eq. 293. Upon this subject of the origin 
 and extent of the wife's equity generally, see notes to Murray v. Lord Elibank, 
 ut supra; Story's Eq. ^ 1403. It is to be remembered, that in those States where 
 there is a "Married Woman's Act," the husband not being in general entitled to 
 any interest in, or control over, his wife's estate, her equity to a settlement is no 
 longer of importance. 
 
 ■ Greedy v. Lavender, 13 Beavan, 62, where both the parties were separated, 
 and living in adultery. So in Carter v. Carter, 14 Sm. & Marsh. 59, where the 
 wife was living in adultery. 
 
OF TRUSTEES FOB MARRIED WOMEN. 589 
 
 court itself would do, if a suit were instituted. And if a bill be once 
 filed, the trustees have no longer any discretionary power to pay 
 over the fund to the husband unconditionally; and such a payment, 
 if made, would be disallowed by the court.(/) 
 
 However, this equitable doctrine is not withoi^t its exceptions : for 
 if the husband be the purchaser of all his wife's fortune by a previous 
 settlement upon her, he will not be required to make an additional 
 settlement upon coming to the court to recover possession of her 
 equitable property. (^) 
 
 But the consideration of a settlement will apply prima facie only 
 to the purchase of the wife's then present fortune ; and if she subse- 
 quently become entitled to any additional property, the husband will 
 not be held to have become a purchaser by settlement of the ad- 
 ditional interest, unless the instrument expresses, or clearly imports, 
 such an intention. (A) Thus, where the settlement was expressed to 
 be in consideration of such fortune, as the wife "is or may he" en- 
 titled to, it has been held, that if anything come afterwards during 
 the coverture to the wife, the husband is to be considered a purchaser, 
 and will take it.(i) But if the instrument did not in terms extend to 
 the wife's future interests, but, on the contrary, it appeared that her 
 existing fortune only was in contemplation at the time, it has been 
 decided that the husband will have purchased nothing more than her 
 present property, and according to the general rule, the wife will be 
 entitled to an additional provision out of any future fortune. (^) And 
 where the provision for the wife by the settlement *is very in- 
 adequate in consequence of her subsequent accession of fortune, L -■ 
 that will be an additional reason for the court to hold, that the future 
 property was not within the contemplation of the settlement, and on 
 that ground to compel him to make a further provision for her.(Z) 
 However, it is settled, that a settlement, or even an agreement for a 
 settlement,(w2) made by the husband previously to the marriage, and 
 expressed to be in consideration of his wife> fortune, will entitle him 
 
 (/) Macauley v. Phillips, 4 Ves. 18; 10 Ves. 579. [See Matter of Beresford, 
 
 Murray v. Lord Elibank, 10 Ves. 90; 1 Desaus. 263.] 
 
 De la Garde v. Lempriere, 6 Beav. 344, (i) Garforth v. Bradley, 2 Ves. 677.; 
 
 347. [Crook v. Turpin, 10 B, Monr. Mitford v. Mitford, 9 Ves. 96; Carr ^. 
 
 243.] Taylor, 10 Ves. 579. , 
 
 (g-) Druce v. Denison, 6 Ves. 395; (4) Dnice v. Denison, 6 Ves. 385; 
 
 Carr v. Taylor, 10 Ves. 579 ; Garforth ti. Mitford v. Mitford, 9 Ves. 87; Carr v. 
 
 Bradley, 2 Ves. 677 ; Mitford v. Mitford, Taylor, 1 Ves. 578 , 
 
 9, Ves. 96. [See Martin v. Martin, 1 {I) March v. Head, 3 Atk.720; Tom- 
 
 Comst. 473.] kyng v. Ladbroke, 2 Ves. 595; Stack- 
 
 (A) Garforth v. Bradley, 2 Ves. 677; pole v. Beaumont, 3 Ves. 98; Elibank 
 
 Druce v. Denison, 6 Ves. 395; Mitford v. Montolleu, 5 Ves. 737. 
 
 V. Mitford, 9 Ves. 95, 6 ; Carr v. Taylor, (m) Adams v. Cole, 2 Atk. 449, n.; 
 
 Forr. 168; Brett v. Forcer, 3 Atk. 405. 
 
590 OF TRUSTEES FOR MARRIED WOMEN. 
 
 as a purchaser to the unconditional possession of all the property to 
 which the wife was then equitably entitled, without reference to the 
 sufficiency or insufficiency of the provision so made for her.(re) And 
 this would doubtless be also the case with respect to the future pro- 
 perty of the wife, if expressly referred to in the settlement. How- 
 ever, it may be remarked that the wife's equity will not be bound 
 by an adequate provision made by a uoZtfwtary, settlement after mar- 
 riage. (o)' 
 
 It is not essential, that the settlement made by the husband on 
 marriage should be expressed to be^made in consideration of, or even 
 that it should refer to, the wife's fortune. Although the settlement 
 may be silent on that point, the husband will, notwithstanding, be 
 held to have become the purchaser of the whole of the equitable 
 property of the wife, if the settlement be equivalent ; for the wife 
 shall not have her jointure and fortune both.(/7) 
 
 Where a settlement is made in consideration of part only of the 
 wife's fortune, its effect will not be extended beyond the express 
 terms, and her equity for a further provision will attach upon the 
 remainder of her property, as if no settlement had been made. (9) 
 
 The title of a husband, as the purchaser by settlement of his wife's 
 equitable property, is not complete of itself, so as to bar her right 
 by survivorship. Such a purchase operates merely as a power for 
 him to acquire possession of the fund by taking a transfer from the 
 trustee, and if he neglect to reduce it into his actual possession, it 
 will survive to the wife on his death in her lifetime.(r) 
 
 Equity will not interpose in favor of the wife, and compel a set- 
 tlement out of her equitable property, unless the amount of the pro- 
 perty in question is of sufficient magnitude. (s) And it was the rule 
 of the court, at one time, not to interfere where the amount did not 
 exceed lOOZ. ;[() and that sum has since been increased to 200Z., or 
 lOZ. per annum, (m)^ And where the property does not exceed that 
 
 (n) Lanoy v. Duke of Athol, 2 Atk. ford v. Mitford, 9 Ves. 96 ; Salwey v. 
 
 448; see 3 P. Wms. 199, n. (d) Salwey, Ambl. 692; Heatonw. Hassell, 
 
 (0) 2 Atk. 448. 4 Yin. Abr. 40, PI. II. 
 
 ip) Blois V. Hereford, 2 Vera. 502 ; (s) March v. Head, 3 Atk. 721. 
 
 sed vide Salwey v. Salwey, Ambl 692. (f) Bourdilloii v. Adair, 3 Bro. C. C. 
 
 (g) Cleland v. Cleland, Prec. Ch. 63; 237. 
 
 BurdoniJ. Dean, 2 Ves.jun. 607. (u) 5 Ves.742,n. (c); 8Ves.201,512, 
 
 (r) Rudyard v. Neirim, Prec. Ch. 524; 1 Mad. Ch. Pr. 609. 
 209 ; Lister v. Lister, 2 Vem. 68 ; Mit- 
 
 ' In Dunkley v. Dunkley, 13 Engl. L. & Eq. 350, before Lord St. Leonards, the 
 vyhole residue of the wife's fortune was settled on her by the court, under the 
 circumstances; though the husband had settled after marriage a considerable 
 portion of his property on her; and see Matter of Beresford, 1 Desaus. 263. 
 
 " This is now overruled, and a settlement will be compelled, though the amount 
 
OF TRUSTEES FOR MARRIED WOMEN. 591 
 
 value, the court will order the trustees to pay it over to the husband, 
 or his assignee, without any settlement or condition ; although it is 
 alleged, that such a payment is without *the wife's concur- r*4i at 
 rence, or consent •,{x) and though she had been deserted by 
 him and opposed the application. (^) But if the amount at all ex- 
 ceeds 2001., the court will not make an order for its payment to the 
 husband without the wife's consent in court, although the payment of 
 the necessary costs will reduce the amount of the fund below 200Z.(s) 
 
 The equitable interest of a wife in chattels real was, at one time, 
 an exception to the general right of a wife to a settlement out of all 
 her equitable personal property? For it has been already stated, 
 that according to the old law the husband might have disposed abso- 
 lutely of such interests in right of his wife. (a) But this distinction 
 was disapproved of on more than one occasion, (6) and was at length 
 overruled by Lord Cottenham in the late case of Sturgis v. Champ- 
 neys,(c) in which his Lordship decided, that the wife was entitled to 
 the same provision out of her equitable interest in chattels real, as 
 in other personal property. This decision has since been followed, 
 though reluctantly, by Vice-Chancellor Wigram, in the case of Han- 
 son V. Keating,(c?) where the same question called for decision. The 
 law, therefore, must now be considered as finally settled in the man- 
 ner stated above. 
 
 Where the wife's equitable interest is for life only, her equity for 
 a settlement will not attach as against a purchaser for valuable con- 
 sideration from the husband, if the purchase were made when the 
 husband was maintaining the wife, and before circumstances had 
 raised any present equity for an actual settlement out of the property 
 for her benefit.(e)* Although as against the husband's general as- 
 
 {x) Elworthy v. Wickstead, 1 J. & (6) Pitt v. Hunt, 1 Vern. 18 ; Jewson 
 
 W. 69. V. Moulson, 2 Atk. 417. 
 
 (j) Foden v. Finney, 4 Russ. 428. (c) 5 M. & Cr. 97. 
 
 [Overruled, see ante, note to 409.] (d) 8 Jur.,949; S. C, 14 Law Journ. 
 
 («) Beaman v. D'odd, 13 Law Journ. N. S., Chanc. 14. [4 Hare, 1; see ante, 
 
 N. S., Chanc. 141. 406.] 
 
 (o) Sir E. Turner's case, 1 Vern. 7 ; (e) Elliott v. Cordell, 5 Mad. 156; 
 
 and cases cited in note supra, p. 407. Stanton v. Hall, 2 R. & M. 175, 182; 
 
 Burdon v. Dean, 2 Ves. jun. 608. 
 
 be under 2001. Cutler's Trust, 6 Eng. L. & Eq. 96 ; Kincaid's Trust, 22 Law 
 Journ. Ch.- 375, where, it is said, the rule as to the 2001. applies only as to taking 
 the wife's consent. 
 
 » Vaughan v. Buck, 7 Jur. 338; 13 Sim. 404; and this was also approved by 
 Lord Cranworth,V. Ch., in S. C, 3 Eng. L. & Eq. 137. But in Wilkinson v. Charles- 
 worth, 10 Beavan, 327, Lord Langdale held, notwithstanding that decision, that 
 the wife was entitled as against her husband, as a purchaser for value, to a set- 
 tlement out of her life estate, and repudiated the distinction. See 2 Spence, Eq. 
 Jur. 482; and see Udall v. Kenney, 3 Cowen, 607. 
 
592 OF TRUSTEES FOR MARRIED WOMEN. 
 
 signee claiming by act' of law — as by his bankruptcy or insolvency 
 
 the wife will, in all cases, be entitled to a provision out of her equi- 
 table life interests.(/) 
 
 The ground of this distinction is, that a husband, in equity as well 
 as at law, is entitled to the receipt of the income of his wife's pro- 
 perty, as a compensation for his liability to maintain her.(^) Conse- 
 quently, he will be entitled to the uncontrolled beneficial enjoyment 
 of her life interests, unless he desert her, or otherwise fail to dis- 
 charge the obligation of maintaining her. In case of the husband's 
 bankruptcy or insolvency, his incapacity to maintain his wife will 
 have already raised an equity in her favor at the time, when the title 
 of his assignees vests ; but the case of a particular assignee is not 
 open to the same objection where the assignment to him is made be- 
 fore the husband had deserted, or ceased to maintain, his wife.(A) 
 
 Where the wife has already an adequate provision made for her by 
 settlement, she will not be entitled to any further provision out of a 
 mere life interest, either against the husband upon his desertion or 
 r*41 n refusal to support *her, or against his general assignees upon 
 his bankruptcy, or insolvency.(i)(l) It is to be observed, that 
 the husband's assignment of his wife's life interest will be good only 
 during the continuance of the coverture, and will not bind her, if she 
 survive.(^) 
 
 The wife's equitable right to a settlement may be waived by her 
 on examination in court at any time before the settlement is actually 
 executed. (Z) Unless indeed the children have acquired an actual in- 
 terest by contract or agreement, in which case they would be entitled 
 to enforce the execution of the settlement. (m) 
 
 Again, this right may be forfeited by the improper conduct of the 
 wife ; as where she lives in adultery and apart from her husband. In 
 
 (/) 5 Mad. 156; see Brown U.Clark, 3 (?) Rowe v. Jackson, 2 Dick. 604; 
 
 Ves.l66;Pryorv.Hill,4Bro.C.C.139; Murray v. Lord Elibank, 10 Ves. 84; 
 
 Lumb V. Milnes, 5 Ves. 517 ; Brov^n v. Martin v. Mitchell, 10 Ves. 89, cited; 
 
 Amyatt, 1 Mad. 376, n.; Wright uMor- Steinmetz v. Halthin, 1 Gl. & J. 64; 
 
 ley, 1 1 Ves. 12,21. [Sturgis v. Champ- Hodgens v. Hodgens, 1 1 Bligh, 103, 4, 5. 
 
 neys, 5 My. & Cr. 97.] [Ferris u. Brush, 1 Edw.Ch.572; Pastellr. 
 
 \g) Carter^). Anderson, 3 Sim. 370; Skirving,lDesaus.l58;Tevis«.Eichaid- 
 
 1 Rop. Husb. and Wife. 273. son, 7 Monr. 644 ; Ex parte Warfield, 11 
 
 (fe) Elliott V. Cordell, 5 Mad. 156j & J. 23; see Sawyer v. Baldwin, 20 
 
 Stanton ■u.Hall,2R.&M. 182. [Vaughan Pick. 378; Taylor v. Anderson, 7 B. 
 
 V. Buck, 3 Eng. L. & Eq. 136.] Monr. 552.] 
 
 (i) Aguilar v. Aguilar, 5 Mad. 414. (m) Ex parte Gardiner, 2 Ves. 671; 
 
 \k) Stiffe v. Everett, 1 M. & Cr. 37, see Fenner v. Taylor, 1 Sim. 169; S.C. 
 
 41 ; see Purdew v. Jackson, 1 Ross. 71, 2 R. & M. 190. 
 n.; Com. Dig. [Baron and Feme, K.] 
 
 (1) There is no distinction in this respect between the rights of the assignees 
 of a " bankrupt" or an " insoivent" husband. Napier «. Napier, 1 Dr. & W. 410. 
 
OF TRUSTEES lOR MARRIED WOMEN. 593 
 
 such cases the court will not interpose in her favor, for she is unwor- 
 thy of its protection ; neither on the other hand will it direct the 
 fund to he delivered over to the husband without his making any set- 
 tlement ; but it will leave the parties in statu quo.{n) However, there 
 is an exception to this rule, where the wife is a ward of court, and 
 enters into a clandestine marriage ; for in that case whatever may be 
 the irregularity of the wife's conduct, the court will compel the hus- 
 band to make a settlement out of her property in consequence of his 
 contempt in procuring such a marriage.(o) 
 
 But where there is no imputation against the moral conduct of the 
 wife, her equity for a settlement will be enforced in her favor, al- 
 though she may be living apart from her husband. (p) 
 
 And where the husband's cruelty or improper conduct is the cause 
 of the wife's separating from him, she will d fortiori be entitled to a 
 provision out of her equitable property. (g') Indeed we shall see pre- 
 sently that this may be a reason for inducing the court to settle the 
 whole of the property on the wife.(r') 
 
 The court rarely requires the husband, or the parties claiming 
 under him, to settle the whole of the wife's equitable property on her 
 and her children ; it is suflScient, that a reasonable part is secured. (s)' 
 And where it has been referred to the Master to approve of a proper 
 settlement, it will be a good ground for exception to his report, that 
 the settlement includes the whole of the fund.(t) The question in 
 most cases has been, how much the wife shall have ; and in deter- 
 
 (n) Ball V. Montgomery, 2 Ves. jun. (g) Oxenden v. Odenden, 2 Vern. 463 ; 
 
 191 ; Carr v. Eastabrooke, 4 Ves. 146. Ball v. Montgomery, 4 Bro. C. C. 339. 
 
 (o) Ball V. Coutts, 1 V. & B. 302, 4; (r) Vide post, 
 
 see Like ». Beresford, 3 Ves. 506. [Mar- (s) Wright «. Morley, 11 Ves. 21,22; 
 
 tin V. Martin, 1 Comst. 473; but see see Burdon v. Dean, 2 Ves. jun. 607; 
 
 ante, 408, note.] Green v. Otte, 1 S. & St. 250. 
 
 (p) Eedes v. Eedes, 10 Law Journ. («) Beresford v. Hobson, 1 Mad. 362; 
 
 N. S. Chano. 199. [11 Sira. 569; see Goose i). Davis, lb. 375, cited. [But see 
 
 ante, p. 408.] Barrett v. Oliver, 11 Gill & J. 191.] 
 
 ' In Dunkley v. Dunkley, 13 Eng. L. & Eq. 318, before Lord St. Leonards, it 
 was held that there was no rule or practice which prevents the wife from having 
 the whole of the fund ; but that it was a matter purely in the discretion of the 
 court. In that case, the husband had received a large portion of the wife's es- 
 tate, and subsequently deserted her, and the whole of the residue was directed 
 ' to be settled on her and her children, as against his assignees in bankruptcy. 
 See also Ex parte Pugh, 12 Engl. L. & Eq. 350; Kincaid's trust, 22 L. J.Ch.395; 
 Gardner v. Marshall, 14 Sim. 587 ; Scott v. Pashett, 9 Engl. L. & Eq. 268, in 
 which case, where two-thirds had previously been transferred to the husband, the 
 wife was allowed to retain the residue against an assignee for value. In the 
 United States, also, it is said that under proper circumstances, the whole would 
 be given. Helms v. Franciscus, 2 Bland, Ch. 545: Kenny v. Udall, 5 John. Qh. 
 464; 3 Cow. 591; Napier v. Howard, 3 Kelly (Geo.), 205 ; Bowling i;. Winslow's 
 Adm., 5 B. Monr. 31 ; Browning «: HeadJey, 2 Robin. Va. 340. 
 
 88 
 
594 OF TRUSTEES FOR MARRIED WOMEN. 
 
 mining that, the court has exercised a discretion, and has nctt tied 
 itself down to any precise rule.(M) However, in several instances 
 r*41 21 ^^^^ °^ ^^^ ^"°*^ ^^^ ^^®° considered a fair proportion *as be- 
 tween the wife, and the assignees of a bankrupt husband.far) 
 The husband, or those claiming in his place, after making the re- 
 quired settlement, will be absolutely entitled to the remainder of the 
 property, as far as it can be reduced into possession in the husband's 
 lifetime, and subject to the wife's title by survivorship in case it is 
 not so reduced into possession. 
 
 However, the general rule against settling the whole of the wife's 
 fund admits of exceptions. For if the husband have been guilty of 
 acts of gross misconduct, as where he has received and squandered 
 great part of his wife's fortune, and has been guilty of cruelty and 
 ill-treatment, and left her totally unprovided for ; the court will se- 
 cure for the wife's benefit the whole of her equitable property, which 
 it can find still remaining and available for that purpose. (?/) And if 
 the husband have committed a contempt by running away with and 
 marrying a ward of the court ;(g) or by contumacious disobedience to 
 the orders of the court,(a) the court has refused to give him any part 
 of the wife's fortune, and has directed the whole to be settled on her. 
 A distinction has also been taken in this respect between a bankrupt 
 and an insolvent husband, on the ground that all the future property 
 of an insolvent ^is liable to the claims of his creditors, while the bank- 
 rupt, after he has obtained his certificate, is a free man. And in 
 consequence of this distinction in a late case in the Court of Ex- 
 chequer, Alderson, B. directed the whole of an equitable fund, be- 
 longing to the wife of an insolvent, to be settled on her and her 
 children to the entire exclusion of the assignees of the husband. (6) 
 
 It is to be observed that this equitable right of a wife to a settle- 
 ment, applies only to married persons, who are subject to the law of 
 England. If the parties are foreigners, and according to the law of 
 their country the husband is entitled to receive his wife's fortune 
 without making any settlement on her, the court will give effect to 
 his legal right by ordering the property to be made over to him with- 
 
 («) 1 Mad. 379, 380; Napier v. Na- Dan vers, lb. 691; Coster v. Coster, 9 
 
 pier, 1 Dr. & W. 409. Sim. 597, where three-fourths of the 
 
 (i) Worrall v. Marlar, 1 P. Wms. 459, fund were settled on the wife. [Vaughan 
 
 n.; S. C. 1 Cox, 158 ; Brown v. Clark, v. Buck, 1 Sim. N. S. 204, 3 Engl. L. & 
 
 3 Ves. 166 ; Carr if. Taylor, 10 Ves. 578 ; Eq. 135 ; and Ex parte Pugh, 12 Engl. 
 
 Beresford «. Hobson, 1 Mad. 362. [Bag- L. & Eq. 350, where two-thirds were 
 
 shaw V. Winter, 1 1 Engl. L. & Eq. 274, settled.] 
 
 where the costs were thrown on the as- (s) Like v. Beresford, 3 Ves. 506. 
 
 signees' half.] [See Helm v. Francisous, 2 Bland, 546.] 
 
 iy) See Elliott u. Cordell, 5 Mad. 156; (a) Kent v. Burgess, 10 Law Joum, 
 
 Bond V. Simmons, 3 Atk. 21 ; Oxenden N. S. Chanc. 100. [11 Sim. 361.] 
 
 V. Oxenden, 2 Vern. 493; Nichols «. (6) Brett-u.Greenwell,3Y.&Coll.230. 
 
OP TRUSTEES FOR MARRIED WOMEN. 595 
 
 out any condition.(c)» And in such a case if the trustee decline to 
 transfer the fund to the husband, and thus drive him to file a bill, 
 where his right is perfectly clear, the court might have some difiSculty 
 in allowing the trustee his costs of the suit.(d) 
 
 The court has no power to compel a husband to make any settle- 
 ment on his wife and children out of her equitable property ; but if 
 he refuse to do so, he will not be suffered to possess himself of the 
 corpus of the fund, which will be preserved for her, together with the 
 full benefit of her title to it by survivorship in case she outlive him. 
 However, the court will not take from the husband the income of his 
 wife's fortune, on account of his refusal to make a settlement on her. 
 The law gives him that income in consideration of his liability to 
 maintain his wife ; and as *long as he is willing to live with r^^jgn 
 her, and maintain her, he will be entitled to the receipt of the 
 income ;(e) and this although she refuse to live with him, if her re- 
 fusal be without sufiicient reason.(/) And the same doctrine applies 
 also to the husband's assignees, who will be entitled to the annual 
 income of the wife's property subject to an allowance out of it for her 
 support. (^)^ 
 
 But where the husband deserts his wife without having made any 
 provision for her, or refuses to maintain her, the reason for giving 
 him the income of her property wholly fails, and the court will itself 
 direct its application for her maintenance to the exclusion of the 
 husband. (A) 
 
 It has been already stated, that the trustees would be justified in 
 transferring to the husband without reserve the capital of the wife's 
 trust fund, where no suit had been instituted respecting it ; there- 
 fore a fortiori a payment of the income to him, will in general be a 
 proper payment. But if a bill be once filed, the discretionary power 
 of the trustees is gone, and they could not afterwards be advised to 
 
 (c) Sawyer v. Shute, 1 Anstr. 63; (g-) Burdon «. Dean, 2 Ves. Jan. 607; 
 Campbell t). French, 3 Ves. 321 ; Dues Oswell v. Probert, lb. 680; Lumb v. 
 V. Smith, Jac. 544 : Anstruther v. Adair, Milnes, 5 Ves. 517 ; Wright v. Morley, 
 2M. &K. 513. llVes. 20, 21. 
 
 (d) Anstruther iJ. Adair, 2 M.&K. 516. (A) Ball u. Montgomery, 2 Ves. jun. 
 
 (e) Sleech v. Thoringlon, 2 Ves. 562; 191 ; S. C. 4 Bro. C' C. 339 ; Sleech v. 
 (J Rop. Husb. and Wife, 274. Thorington, 2 Ves. 562; Wright v. 
 
 (/) Bullock V. Menzies, 4 Ves. 798. Morley, 11 Ves. 12. 
 
 ' In Hitchcock v. Clendennin, 12 Beav. 534, .it was held that where the wife 
 by the law of her domicil can claim no equity, her husband is entitled to the 
 proceeds of her real estate in England, absolutely; and if the estate be yet un- 
 sold, may take a conveyance to himself in fee. 
 
 " Duraond v. Magee, 4 J. C. R. 318; Kenny v. Udall, 5 Id. 464, 3 Cow. 591 ; 
 Helms V. Pranciscus, 2 Bland, 545; Note to Murray v. Lord Elibank, ut supra. 
 
596 OF TRUSTEES FOR MARRIED WOMEN. 
 
 make any payment to the husband, even out of the income of the 
 fund, except under the direction of the court.(i) 
 
 It has been already stated, that the wife has the power of waiving 
 her right to a settlement out of her equitable fund.(A;) If, therefore, 
 upon a proper examination she consent to have the property made 
 over absolutely to her husband, the court cannot refuse to make an 
 order to that effect. (Z) So if the property have been assigned by the 
 husband, the wife's consent may be given in favor of the assignee, 
 who will then take the property discharged from her equity.(m) 
 
 But the court will not direct the transfer of the fund, unless it be 
 satisfied, that the consent is the free and voluntary act of the wife ; 
 and for this purpose she must either appear personally in court, when 
 the judge himself will examine her ;(w) or if she cannot appear per- 
 sonally, a commission will be issued to take her examination apart 
 from her husband, (o) 
 
 An application for the transfer of a fund belonging to a married 
 woman, must be made by petition in a cause,' and the court requires 
 an afiidavit of the parties that there was no settlement on their mar- 
 riage. (p) Or if there was a settlement it must be produced, in order 
 that the court may see whether it affected the fund in question.(5') 
 
 A woman cannot divest herself of her right to a settlement out of 
 her equitable property, otherwise than by her consent upon a proper 
 examination, taken either in court or by commission ; and any agree- 
 ment or disposition made by her in any other manner is altogether 
 r*4.l 4.T inoperative, and *will be totally disregarded by the court, if 
 she afterwards insist upon her claim. (r) 
 
 The court will not take the consent of a married woman to the 
 transfer of her fund, until the amount has been ascertained; for 
 though she may not think 500Z. a proper subject of a settlement, 
 she may think differently of 600l.{s) And for this reason a residue, 
 or share of a residue, will not be transferred upon the wife's separate 
 examination and consent,(<) and the produce of a wife's reversionary 
 
 (i) 4 Yes. 18; 10 Yes. 90. [See ante, Campbell v. French, 3 Yes. 322; Ee 
 
 405, note.] Tasburgh, 1 V. & B. 507. 
 
 (i) Ante ; and see Hodgens v. Hodg- (p) Minet v. Hyde, 2 Bro. C. C. 663; 
 
 ens, 1 1 Bligh, 103, 5. Binford v. Bawden, 2 Yes. jun. 38 ; El- 
 
 (l) Dimmock v. Atkinson, 3 Bro. C. liott«. Remington, 9 Sim. 502. Theaffi- 
 
 C. 195; Willatts v. Cay, 2 Atk. 67. davit may be made by the wife only if 
 
 [Ante, 411.] the husband be abroad, lb. 
 
 (m) Johnsoni;. Johnson, IJ.&W. 472. (g) Rcse v. Rolls, 1 Beav. 270. 
 
 (n) Macaulay v, Phillips, 4 Yes. 18. (r) Macaulay v. Phillips, 4 Ves. 18; 
 
 [Ante,411.] see Maitland v. Bateman, 1 3 Law Journ. 
 
 (o) Parsons v. Dunne, 2 Ves. 60; N. S., Chanc. 274, 5; and post. 
 Bourdillon v. Adair, 3 Bro. C. C. 237; {s) Jarnegan v. Baxter, 6 Mad. 32. 
 
 (0 Sperling v. Rochfort, 8 Ves. I78. 
 
 ' Mumford v. Murray, 1 Paige, 620 ; Du vail v. Farmers' Bank, 4 Gill & John. 283. 
 
OF TRUSTEES FOB MARRIED WOMEN. 597 
 
 interest in stock, which has been contracted to be sold, is open to the 
 same objection.(M) However, in a late case, where the residuary 
 fund, to which a married woman was entitled, had been ascertained 
 to consist of the sum of lUl lis., and there had been a decree for 
 the taxation of costs and for their payment out of this sum,^ Sir K. 
 Bruce, V. C, after some hesitation, and after communication with 
 the registrar, took the wife's consent to the payment of the fund out 
 of court, minus the costs ; although the costs had not been taxed, 
 and consequently the sum eventually payable under the decree was 
 still unascertained. (*) 
 
 The wife by her consent can only depart with that interest which 
 is the creature of the court of equity, viz., her equitable right to the 
 provision out of that property, of which, if it were a legal interest, 
 the husband could take actual and immediate possession in her right. 
 Therefore, she has no power to consent to the transfer of an interest 
 in remainder or reversion, either in favor of her husband or any other 
 person. (!/)^ For such an interest cannot be reduced into immediate 
 possession. And although some decisions of a contrary tendency are 
 to be met with,(3) they cannot now be considered of any authority.(a) 
 Where a female ward of court has married without the consent of 
 the court, she will not be suffered by her consent to transfer her pro- 
 perty absolutely to her husband, but a settlement will be directed.(6) 
 Until recently it was doubtful from the authorities, whether the 
 court could take the consent of a married woman, being an infant, 
 to the transfer of her equitable fund. In GuUin v. Gullin,(c) a mar- 
 ried woman under twenty-one presented a petition, praying that a 
 sum in court, to which she was entitled, might be paid to her hus- 
 
 (u) WooUands v. Croucher, 12 Ves. {z) Macarmick «. BuUer, 1 Cox, 357; 
 
 174; Godber v. Laurie, 10 Price, 152. Howard v. Damiani, 2 J. & W. 458, n. 
 
 (a:) Packer v. Packer, 1 Coll. 92. (a) See Honnor v. Morton, 3 Russ. 
 
 ly) Socket v. Wray, 2 Atk. 6, n.; 63; Pickard v. Roberts, 3 Mad. 384; 
 
 Frazer v. Bailie, 1 Bro. C. C. 518 ; Rich- Purdew v. Jacksou, 1 Russ. 48. 
 
 ards V. Chambers, 10 Ves. 508 ; Wool- (6) Staokpole v. Beaumont, 3 Ves. 89. 
 
 lands V. Croucher, 12yes. 175; Ritchie (c) GuUin v. Gullin, 7 Sim. 236. 
 V. Broadbent, 2 J. & W. 456 ; Packard 
 V. Roberts, 3 Mad. 384. 
 
 ' Whittle V. Henning, 2 Phill. 731 ; 12 Jur. 1079 ; Greedy v. Lavender, 13 Beav. 
 612; Cunningham v. Antrobus, 16 Sim. 436; Hobby v. Allen, 3 Engl. L. & Eq. 
 166; Brandon v. Woodthorpe, 10 Beav. 463; Rogers v. Acaster, 11 Engl. L. & 
 Eq. 300 ; overruling Hall v. Hugoliin, 14 Sim. 595. But as to chattels real, see 
 Duberly v. Day, 12 Eng. L. & Eq. 277. See full discussions on this subject in 
 10 Jurist, pt. ii. 474, 482; 7 Engl. Law Magazine, 234; 8 Id. 215; and, for Ame- 
 rican cases, post, 416. However, where a reversionary interest is transferred, 
 the wife's equity attaches only when the interest falls into possession, and cannot 
 be claimed before. Osborn v. Morgan, 8 Engl. L. & Eq. 192. 
 
598 OF TKUSTBES FOE MARRIED WOMEN. 
 
 band ; Sir L. Shadwell, V. C, said, he thought that the consent of a 
 married woman, though a minor, had been taken on a former occasion, 
 and on the lady appearing and consenting, his Honor made the 
 order. (c) However, in a subsequent case at the Eolls, in which a 
 similar application was made on the authority of Gullin v. Gullin, 
 Lord Langdale, M. R., said he felt considerable difficulty in acting 
 on that authority, and refused to make the order, (d) Indeed it does 
 not seem easy to reconcile the order of the Vice-Chancellor in Gullin 
 V. *Gullin with the general principles which govern the court 
 L -^ in dealing with the property of infants under its protection. 
 And in a subsequent case, upon the point being again submitted to 
 the Vice-Chancellor, his Honor decided that the infant's consent 
 could not be taken, (e) 
 
 If the husband fail to reduce into possession his wife's equitable 
 property in his lifetime, she will take the whole by survivorship at 
 his death. (/) And in this respect, any distinction between equitable 
 interests and legal choses in action is entirely exploded.(^)' 
 
 (c) Gullin V. Gullin, 7 Sim. 36. (/) Twisden v. Wise, 1 Vera. 161; 
 
 Id) Stubbs V. Sargon, 2 Beav. 496. Mulchings i;. Smith, 9 Sim. 137; Mitford 
 
 (c) Abraham v. Newcombe, 12 Sim. v. Mitford, 9 Ves. 98. 
 
 566. [See accord, Ex parte Warfield, 1 1 (g) Twisden w. Wise, 1 Vern. 161; 
 
 Gill & J. 23; Udall v.Kenney, 3 Cow. Hornsby v. Lee, 2 Mad. 16; PurdewD, 
 
 590.] Jackson, 1 Russ. 1 ; Honnor v. JMorton, 
 
 3 Russ. 65. 
 
 ' It is now well settled, that the choses in, action, including legacies and distribu- 
 tive shares of the wife, survive to her on her husband's decease, unless they have 
 been in some manner, constructive or actual, reduced to possession in his lifetime. 
 Krumbhaaru. Burt, 2 Wash. C. C. 406; Schuyler v. Hoyle, 5 J. C.R. 196; Searing 
 V. Searing, 9 Paige, 283 ; Snowhill^. SnoWhill, 1 Green Ch. 30; Dane v. Allen, 
 Id. 419; Pike v. Collins, 33 Maine, 43 ; Poor v. Hazleton, 15 Verm. 568; Leggs. 
 Legg, 8 Mass. 99 ; Stanwood v. Stailwood, 17 Mass. 57 ; Hayward v. Hayward, 
 20 Pick. 517; Parsons v. Parsons, 9 N. Harap. 309; Lodge t). Hamilton, 2 S.&R. 
 49; Bohn v. Headley, 7 H. & J. 257; Browning v. Headley, 2 Rob. Va. 340; 
 Revel V. Revel, 2 Dev. & Batt. 272; Whitehurst v. Hacker, 2 Ired. Eq. 292; 
 Pointdexter v. Blackstone, 1 Id. 452 ; Terry v. Branson, 1 Rich. Eq. 178 ; Bibb v. 
 McKinley, 9 Port. 636; Sayre v. Flournoy, 3 Kelly, 541 ; Kelleru. Keller,5Monr. 
 573 ; Clarke v. McCreary, 12 Sm. & M. 347 ; Pickett v. Everett, 11 Missouri, 568; 
 though the conlrary was held in Griswold v. Penniman, 2 Conn. 564. 
 
 It seems generally admitted in the United States, that a transfer for value, or 
 release of a chose, in which the wife has a present interest, will bar her survivor- 
 ship. Schuyler v. Hoyle, 5 J. C. R. 190; Lowry v. Houston, 3 How. Miss. 396; 
 Thomas v. Kelsoe, 7 Monr. 521 ; Snowhill v. Snowhill, 1 Green Ch. 30; Parsons 
 V. Parsons, 9 N. Hanip. 309; Forrest v. Warrington, 2 Desaus. 254; Weeks?. 
 Weeks, 5 Ired. Eq. Ill; Siter's Est., 4 Eawle, 468 ; Tucker v. Gordon, 5 New H. 
 564. In Pennsylvania, it is held that though a wife's chose in action will not pass 
 by general words in the assignment of an insolvent debtor, so as to bar survivor- 
 ship (Eshelmanu. Shuman's Adm , 13 Penn. St.R. 561), yet it will, if specifically 
 included : Richwine v. Keim, 1 Pa. R. 373 ; Shuman v. Reigart, 7 W. & S. 168, 
 
OF TRUSTEES FOR MARRIEB WOMEN. 599 
 
 An actual payment or transfer by the legal holder to the husband 
 himself,(A) or in general to his assignee or other person authorized by 
 
 (A) Doswell V. Earle, 12 Ves. 473; Ryland v. Smith, 1 M. & Cr. 53. 
 
 explained in 13 Penn. St. R. 563; the latter being considered the voluntary act 
 of the husband, and for the consideration of his recovery of liberty. Sifer's Cas^, 
 4 Rawle, 481. But in Van Epps v. Van Deusen, 4 Paige, 64; Outcalt v. Van 
 Winkle, 1 Green Ch. 513; and Poor t). Hazleton, 15 Verm. 568, it was held, on 
 the other hand, that insolvent assignees take the chose, subject to survivorship, 
 though it be specified in the schedule: Poor «. Hazleton, 15 Verm. 568; and 
 indeed in this last case, it was doubted whether it would pass at all. However, 
 even in Pennsylvania, it is held that the proceedings in bankruptcy being in invi- 
 tum, the assignees there will not take absolutely. Shaw v. Sessaman, 10 Barr, 
 434 ; Krumbhaar v. Burt, 2 Wash. C. C. 405 ; see Shaw v. Mitchell, Daveis, 261. 
 So, under general words in a voluntary assignment for creditors, the chose will not 
 pass. Skinner's App., 5 Barr, 263; Slayraaker v. The Bank, 10 Barr, 373. The 
 husband may, however, assign it. by express words in payment of his debts, 
 Barnes t). Pearson, 6 Ired. £q. 482; but a transfer as collateral security alone, 
 will not be enough: Harlman v. Bowdal, 1 Rawle, 279; Latourelle i'. Williams, 
 1 Barb. Ch. 9; that not being a transfer for value. See SitersCase, 4 Rawle, 468. 
 In some of the States, the wife's present interest in her choses may be reached 
 by her husband's creditors, and legacies and distributive sharesmay therefore be 
 attached: Wheeler v. Bowen, 20 Pick. 563; Holbrook i>. Waters, 19 Id. 354; 
 Vance v. McLaughlin, 8 Gratt. 289; see Dold v. Geiger, 2 Gratt. 98; though if the 
 husband die before judgment, the wife's survivorship will nevertheless arise: 
 Strong V. Smith, 1 Metcalf, 476. But in others, it is held that the husband is not 
 bound to exercise his power for the benefit of creditors : Skinner's Appeal, 5 Barr, 
 263; Sayre v. Flournoy, 3 Kelly, 541 ; and hence that the wife's legacy carnot be 
 attached : Dennison v. High, 2 Watts, 90 ; Robinson v. Woelpper, 1 Wharton, 
 179; Wheeler I). Moore, 13 N. Hamp. 478; or reached in equity by creditors: 
 Andrews u. Jones, 10 Alab. 400. A debt due to the estate by the husband may, 
 however, be set off by the executor against the wife's legacy; Yohe v. Barnet, 1 
 Binn. 358 ; Flory v. Becker, 2 Barr, 471 ; though not after his death, without the 
 wife's assent: Kreider v. Boyer, 10 Watts, 58; Stout v. Levan, 3 Barr, 235; Flory 
 V. Becker. Nor can the executor apply the legacy to a debt of the husband to a 
 third person, without authority: Frauenfeldt's Est., 3 Whart. 415. However, 
 notwithstanding this power of the husband to transfer his wife's choses, a fraudu- 
 lent assignment of them, as after desertion, and pending proceedings for a di- 
 vorce, will not be supported: Krupp v. SchoU, 10 Barr, 174. 
 
 Upon the question of the assignment of a wife's choses, the modern authorities 
 in England are at variance with those just stated. It is clear, in the first place, 
 that an assignment in bankruptcy, in insolvency, or one merely voluntary, will 
 not have the effect of barring the wife's survivorship, unless they are actually 
 reduced to possession by the assignee: see post, page 416. Then as to an assign- 
 ment for value, it also appears established, that the purchaser acquires no greater 
 power. This was the doctrine of Purdew v. Jackson, 1 Russ. 1 ; and (though in 
 Honnor v. Morton, 3 Russ. 86, there is a dictum to the contrary), it was approved 
 and followed in Hutchings v. Smhh, 9 Sim. 137; Elvvin v. Williams, 7 Jur. 338; 
 12 L. J. Ch. 440; S. C. under name Ellison v. Elwin, 13 Sim. 309 (see post, 
 417); Ashby a. Ashby, 1 Coll. 654; Wilkinson v. Charlesworth, 10 Beav. 328; 
 Le Vasseur v. Scratton, 14 Sim. 1 18 : Borton v. Borton, 13 Jur. 247 ; 16 Sim. 552. 
 This conclusion is approved in Macqueen, Husband & Wife, 54; 2 Spence's 
 
600 OF TRUSTEES FOR MARRIED WOMBIT. 
 
 him to receive the fui)d,(i) will be a reduction into possession, and will 
 defeat the -wife's title by survivorship ; and this though she be an 
 infant.(A;) 
 
 (i) Glaister v. Hewer, 8 Ves. 207 ; (.k) Hansen v. Miller, 8 Jur. 209. 
 Johnson v. Johnson, 1 J. & W. 472; 
 Hansen v. Miller, 8 Jur. 209. 
 
 Eq. Jur. 476; 4 Law Review, 249; but see the remarks of Mr. Bell, Properly of Hus- 
 band and Wife, 73. Conira, it seems, as to terms for years: Duberly k. Day, 12Eng. 
 L. & E.277 ; but see ante 406. In Siter's Case, 4 Rawle, 461, this subject was dis- 
 cussed, and Purdew v. Jackson strongly disapproved. The doctrine of Siter's Case, 
 and of the American decisions, generally, is that an assignment forvalue bythe hus- 
 band amounts to a contract which equity would execute against him , by compelling 
 a reduction, and therefore will treat as executed, after his death. But this reason- 
 ing appears open to several objections. In the first place, as was indeed shown in 
 Siter's Case, the husband has not a property in, but only a naked power over, his 
 ■wife's choses, which power arises from the blending of persons in the marriage 
 state ; and he cannot transfer to his assignee more than he himself possesses, 
 ■which is only the right of reduction during coverture. Hence, to apply to this 
 case the usual rule in equity with regard to specific performance, would be to 
 convert a limited into an absolute power. Next, the equitable principle referred 
 to is admissible only as between the purchaser, and the assignor and his repre- 
 sentatives. But the wife does not claim through her husband, but on a distinct 
 title. Finally, the legal title in the wife must prevail, if the equities are equal, 
 and undoubtedly the wife has, as owner, an equal equity with the purchaser. 
 Indeed, considering the peculiar favor with which femes covertes are regarded in a 
 court of Chancery, and its strongly marked doctrines with regard to their separate 
 estate, it might well be doubted whether her equity should not be considered to 
 be the superior one. 
 
 What will constitute an actual reduction into possession, is not susceptible of 
 exact definition, but depends on intention. There must be in the first place some 
 distinct act, evincing a determination to take as husband. Thus a mere possession 
 by him as executor or administrator, will not bar the wife's survivorship. Elms 
 V. Hughes, 3 Desaus. 155; Ross v. Wharton, 10 Yerg. 190; Wallace ti. Talia- 
 ferro, 2 Call, 376; Mayfield v. Clifton, 3 Stew. 375; Kintzinger's Estate, 2 Ashm. 
 45; see Miller's Estate, 1 Id. 323. But if the husband in such case charges his 
 ■wife's legacy in his account as paid, and the charge is allowed, it is a reduction. 
 Pierce v. Thompson, 17 Pick. 391. So where he dies without settling an account, 
 having previously appropriated the property of the estate to his own use: Ellisft 
 Baldvpin, 1 W. & S. 253 ; or where he sells it, taking notes therefor, which he 
 converts to his ownu.se. Wardlawi). Gray, 2 Hill's Eq. 644. On the same ground, 
 the mere joining in a suit with his wife, ■with regard to her property, is insuf- 
 ficient. Pike V. Collins, 33 Maine, 43 ; Thompson v. Ellsworth, 1 Barb. Ch. 624; 
 Arnold v. Ruggles, 1 Rhode Isl. 165; Bell v. Bell, 1 Kelly, 637. Thus, where on 
 a bill in equity for a division of the wife's property, commissioners were ap- 
 pointed, who acted, but did not report, it was held that the wife took by survivor- 
 ship. Gregory v. Marks, 1 Rand. 353. So in Bennett v. Dillingham, 2 Dana, 
 436, where in a suit for distribution, the commissioners made sale, and then the 
 husband died. A judgment in a joint suit is not enough; there must be also 
 execution. Pike v. Collins, 33 Maine, 43. So, even, a receipt of the money in 
 such suit is not, it seems, enough. McDowell v. Potter, 8 Barr, 191. The same 
 principle applies to a joint recognisance in the Orphans' Court, for the wife s 
 
OP TRUSTEES FOR MARRIED WOMEN. 601 
 
 And SO in the case of mortgages belonging to, or held in trust for, 
 a feme coverte; if the husband have received the money in his lifetime, 
 
 legacy. Lodge v. Hamilton, 2 S. & R. 49 ; Hake v. Fink, 9 Watts, 336. So a 
 mere receipt in the name of husband and wife, on the wife's bond, without proof 
 of payment of the money to the husband, is insufficient. Timbers v. Katz, 6 W. 
 & S. 290. Merely taking possession of a bond or mortgage, will not bar the wife. 
 Hnnter v. Hallett, 1 Edw. Ch. 388 ; Pickett v. Everett, 1 1 Missouri R. 568. So, 
 even where the husband of one of two mortgagees had purchased the equity of 
 redemption at sheriff's sale, and had paid oflF a part of the incumbrance to the 
 co-mortgagee, the wife's survivorship was held not to have been barred. Miller's 
 Est.. 1 Ashm. 332. So in Durant v. Salley, 3 Strobh. Eq. 159, where a mother 
 and daughter were entitled to certain slaves as co-distributees, but the slaves 
 were never divided, and the husband of the daughter, residing on the mother's 
 plantation, worked the slaves together, it was held that the marital rights of the 
 husband had not attached. See, also, Rogers v. Bumpay, 4 Ired. Eq. 384. 
 
 As, moreover, the question thus depends on the husband's intention, an act 
 prima facie a reduction, may be shown by other circumstances, or by his decla- 
 rations at the time, or subsequently, to have been intended for the benefit or in 
 trust for the wife. Hind's Estate, 5 Wharton, 1 38 ; Gray's Est., 1 Barr, 327 ; 
 McDowell V. Potter, 8 Barr, 191. But to create a disclaimer, subsequent admis- 
 sions must be " deliberate, positive, precise, clear, and consistent." Gray's Est., 
 ut supra. 
 
 Not only must the intention to appropriate appear distinctly, but the act of 
 reduction must be complete at the husband's death. Thus, where a husband 
 gave an order in favor of a creditor on a solicitor, who had recovered for the 
 wife in a separate suit, this was held an insufficient reduction. Riley's Eq. 47. 
 So where the land on which a legacy to a married woman was charged, had 
 been sold on e.xecution, and the proceeds paid into court, and her husband had 
 so far made the legacy his own as to let in a set-off for his proper debt, but died 
 before distribution, it was held that the widow was not disappointed of her sur- 
 vivorship. Donaldson v. West Branch Bank, 1 Barr, 286. And where a husband 
 attempts to reduce the chose, and but part is actually received, the remainder will 
 survive. Schuyler v. Hoyle, 5 J. C. R. 190. 
 
 Where, however, the requisites enumerated cqncur, the survivorship is ex- 
 cluded. Thus, taking bond from an executor for a legacy, and judgment thereon, 
 is a reduction : Stewart's App., 3 W. & S. 476 ; see Yerby v. Lynch, 3 Gratt. 460 ; 
 or taking a new security for the old debt: Searing v. Searing, 9 Paige, 283; so 
 taking a bond from the devisee of land, subject to a legacy. Dewitt v. Eldred, 4 
 W. & S. 422. So in Siter's Case, 4 Rawle, 461, a deed of wife's choses by hus- 
 band to a trustee for the benefit of the wife and child, excludes the wife's sur- 
 vivorship. Where the money is received by the husband, it is of course sufficient : 
 see Latourette v. Williams, 1 Barb. 9; and a receipt given for the amount of his 
 wife's choses, though she be an infant, is good, and will discharge the debtor. 
 Starke v. Starke, 3 Richard. R. 438. 
 
 _ With regard to the husband's power over reversionary interests and possibili- 
 ties, the authorities are at variance. In England, it is now finally established, that 
 the husband can neither assign, release, or transfer them in any way, nor can she 
 consent to such appropriation, either under a separate examination, or the Fines 
 and Recoveries Act; not even where all the other parties surrender their interest 
 to her, so that there would otherwise be a merger. See the authorities cited in 
 the note to page 414. This doctrine has been followed in the United States, in 
 Browning v. Headley, 2 Rob. Va. 340; Moore v. Thornton, 7 Gratt. 99; Terry v. 
 
602 OF TRUSTEES FOR MARRIED WOMEN. 
 
 but die before the security with the legal estate is released or trans- 
 ferred, the receipt of the debt by the husband will be treated as a 
 sufficient reduction into possession, and the wife or her trustee will 
 be bound to release or assign the legal estate to the party by whom 
 the money has been so "paid. For in equity a mortgage is regarded 
 only as a debt.(Z) So a settlement of the wife's equitable fund made 
 by the husband, and perfected by an actual transfer to the trustees 
 of that settlement, will be binding on the wife surviving ; for the 
 transfer to the trustees hy the direction of the Jiusband, was a re- 
 duction into possession by him.(m) 
 
 But a payment or transfer to the husband as a trustee for the 
 benefit of his wife, will not be considered a reduction into possession 
 by him.(m) 
 
 Nor in general will any dealing with the fund amount to such a 
 reduction, which does not vest the legal title to it in the husband, or 
 the person claiming under him. For instance, where an executor 
 has set apart a sum for the payment of a legacy given to a married 
 woman :(o) or the>fund has been paid into court by the trustee ;{p) (1) 
 or has been transferred by the existing ^trustees to other persons as 
 trustees for the wife's benefit ;(g') in none of these cases will the wife's 
 title by survivorship be defeated : for in all of them the husband's 
 interest is still such as could only be enforced by a suit in equity; or 
 
 (I) Rees V. Keith, 10 Law Journ. N. (o) Blount v. Bestland, 5 Ves. 515., 
 
 S. Chanc. 46. [Siter v. McLanahan, 2 (p) Macaulay v. Phillips, 4 Ves. 17, 
 
 Grattan, 280.] 18. 
 
 (m) Hansen v. Miller, 8 Jur. 209. (g) Wall v. Toralinson, 16 Ves. 413; 
 
 (n) Wall V. Tomlinson, 16 Ves. 413; Fort v. Fort, Forrest, 171; Ryland v. 
 
 see Baker v. Hall, 12 Ves. 497. Smith, 1 M. & Cr. 53. 
 
 (1) Unle,ss indeed it be paid in to the account of the tasiand atone; Re Jenkins, 
 5 Russ. 183. 
 
 Brunson, 1 Rich. Eq. 78; Goodwin v. Moore, 4 Humph. 221 ; Caplinger v. Sul- 
 livan, 2 Id. 548. But in Pennsylvania the rule is different. Siter's Case, 4 
 Rawle, 461; Woelpper's App., 2 Barr, 71. So in Kentucky; Merriwether «. 
 Booker, 5 Litt. 254 ; see Turner v. Davis, 1 B. Monr. 157; Davenport v. Prewett's 
 Adm., 9 Id. 95; Jackson v. Sublett, 10 Id. 467; see, also, Scott v. James, 2 How. 
 Miss. 307. In North Carolina, it is held that the husband may transfer a vested 
 remainder in a chattel, as slaves; but not an equitable interest. Knight D.Leake, 
 2 Dev. & Batt. U. 123; Howell v. Howell, 3 Ired. Eq. 528 ; Weeks v. Weeks, 5 
 Ired. Eq. 81. 
 
 The same general rules as have been stated as to the separate interest of the 
 wife in her choses, apply to a bond or legacy given to husband and wife jointly, 
 which will also survive to the wife. Pike v. Collins, 33 Maine, 43; Hay ward v. 
 Hayward, 20 Pick. 517; Atcheson v. Atcheson, 11 Beav. 485; Laprimaudaye t). 
 Teissier, 12 'Beav. 206. A payment in such case to the husband would be good; 
 but if the fund be before the court, it will be retained, with a direction to pay 
 dividends to the husband during the joint lives; with liberty to the survivor to 
 apply. Atcheson v. Atcheson, ut supra. 
 
OF TRUSTEES FOR MARRIED WOMEN. 603 
 
 in other words, it still remains an equitable chose in action. So the 
 mere filing of a bill by the husband or his assignees against the legal 
 holder of the property, to obtain a transfer or payment ;(r) or a 
 decree in a joint suit for the joint benefit of the husband and wife, 
 *will not affect her rights by survivorship.(s) Although it 
 will be otherwise, where the fund is ordered to be paid, or L J 
 declared to belong to the husband alone; and in that case, his execu- 
 tors will be entitled, although he die in her lifetime. (() And an 
 award, directing the payment of money to the husband alone, will 
 have the same effect.(M) 
 
 It is clear, that receipt by the husband of the interest or divi- 
 dends of the fund, is no reduction into possession by him. (a;) And 
 even the receipt by him of part of the capital will not have that 
 effect as to the whole fund, so as to bar the wife's title to the 
 remainder, if she survive. (3/) 
 
 So it has long been settled, that the general assignment by ope- 
 ration of law upon the bankruptcy or insolvency of the husband, 
 will not operate to defeat the wife's title to her equitable property, 
 or choses in action, whether they are reversionary or not, if the 
 assignees shall not have acquired actual possession in the husband's 
 lifetime. (») And still less will a mere voluntary assignment by 
 the husband have that effect, (a) So where the wife's equitable inte- 
 rest or chose in action is reversionary, and is therefore incapable of 
 being reduced into actual possession, it is clearly settled, that the 
 assignment by the husband, although for valuable consideration, will 
 not have the effect of a reduction into possession, so as to defeat the 
 wife's title by survivorship, if the interest remain in reversion until 
 the husband's death.[b) 
 
 Whether an assignment by the husband for valuable consideration 
 will have that effect, where the property is capable of being reduced 
 into possession by the husband, either at the time of the assignment, 
 or at any time before his death, is not so free from doubt., There 
 is a series of cases, which have decided that such an assignment will 
 
 (r) Pierce v. Thomely, 2 Sim. 167, (2:) Gayner v. Wilkinson, 2 Dick. 
 
 180. 491; 1 Bro. C. C. 50, n. ; Mitford v. 
 
 («) Nanney v. Martin, 1 Eq. Ca. Abr. Mitford, 9 Ves. 87, 97 ; Hornsby v. Lee, 
 
 68; 3 Atk. 726 ; Forbes v. Phipps, 1 Ed. 2 Mad. 16; Pierce v. Thomely, 2 Sim. 
 
 502; Nightingale ?). Lockman, Fitzgibb. 167, 177. 
 
 148; Hore D. Woulfe, 2 Ball & B. 424; (a) Lord Carteret v. Pascal, 3 P. 
 
 Adams u. Lavender, 1 McClel.&Y.41; Wms. 199; Burnet i).Kynaston, 2 Vern. 
 
 Ee Jenkins, 5 Russ. 183. 401 ; Mitford v. Mitford, 9 Ves. 99 ; 
 
 (0 Packer v. Wyndham, Preo. Ch. Johnson v. Johnson, 1 J. & W. 472. 
 
 412; Heygate v. Annesley, 3 Bro. C C. (6) Hornsby v. Lee, 2 Mad. 16 ; Pur- 
 
 362; see Re Jenkins, 5 Russ. 183. dew v. Jackson, 1 Russ. 1 ; Honnor v. 
 
 (u) Oglarider v. Baston, 1 Vern. 396. Morton, 3 Russ. 65; Dalbiac u.Dalbiac, 
 
 (a) Nash i;.iNash, 3 Mad. 133. 16 Ves. 122. [See Duberly u. Day, 12 
 
 W Ibid. Eng. L. & Eq. 268, and ante, 4 14, note.] 
 
604 OF TRUSTEES FOR MARRIED WOMEN, 
 
 have the effect of reduction into possession, on the ground, that the 
 transaction amounts to an agreement by the husband to reduce the 
 property into possession, which agreement being for valuable conside- 
 ration ought to be performed. (c). And although the principle of 
 those decisions was disapproved of by several eminent judges, who 
 considered it as somewhat unintelligible, how the husband's assignee 
 could be in a better situation than the husband himself, (ci) the doc- 
 trine which they established, appears notwithstanding to have been 
 recognised and admitted, (e) until the Vice-Chancellor's observa- 
 tions* in the recent case of Hutchings v. Smith(/) raised 
 L J considerable doubt as to its authority. 
 
 In that case a husband and wife (pending a suit for the administra- 
 tion of an estate, to a residuary share of which the wife was entitled), 
 joined in an assignment of her share as a security for a debt of the 
 husband. The husband died, and subsequently to his death a 
 decree was made in the suit for the payment of the residuary share 
 of the estate to the wife. The widow claimed to take the whole share 
 by survivorship to the exclusion of the particular assignee, and the 
 Vice-Chancellor decreed in her favor, but on the ground, that the 
 decree was for payment to her alone. In the view of the case taken 
 by his Honor, it became unnecessary to enter into the general ques- 
 tion as to the effect of the assignment for valuable consideration by 
 the husband. "But," said his Honor, "when it becomes necessary 
 to decide that question, the Court will have to consider whether the 
 cases of Bates v. Dandy, and Lord Salisbury v. Newton, can be con- 
 sidered as authorities, which absolutely and conclusively establish the 
 position, that where the wife has survived her husband, the assignee for 
 value of the wife's choses in action can be entitled to any portion of 
 it."(^) This case has since been followed by that of Blwin v. Wil- 
 liams,(A) before the same learned judge. There, A. was entitled 
 under a will to part of the testator's residuary estate, which was given 
 to trustees for her benefit. Upon A.'s marriage, she and her hus- 
 band covenanted to settle this interest upon certain trusts ; and after 
 the marriage, and after a great part of A.'s. interest under the will, 
 had become capable of being reduced into possession hy the husband, 
 
 (c) Duke of Chandos v. Talbot, 2 P. Honnor v. Morton, 3 Russ 65; Purdew 
 W. 608 ; Lord Carteret v. Paschall, 3 P. v. Jackson, 1 Russ. 60. 
 
 Wms, 197; Bates •«. Dandy, 2 Atk. 207; (e) Johnson v. Johnson, 1 J. & W. 
 
 S. C. 1 Russ. 33, n,, and 3 Russ. 72 n. ; 476 ; Honnor v. Morton, 3 Rnss 68. 
 
 Wright ^.Morle'y, 11 Ves. 20, 21 ; Grey (/) 9 Sim. 137, 146, 7. 
 
 V. Kentish, 1 Atk. 280; Hawkins v. (g-) Hutchings -u Smith, 9 Sim. 137, 
 
 Obyn, 2 Atk. 549; Pascall v. Thurston, 146. 
 
 2 Bro. P. C. 19; Honnor t). Morton, 3 (A)Eiwinu. Williams. 12 LawJourn. 
 
 Russ. 68, 9. N. S., Chano. 440. [7 Jur. 335; S. C 
 
 (d) See Mitford«. Mhford, 9 Ves. 99 ; suh mm. Ellison v. Elwin, 13 Sim. 309 i 
 Johnson v. Johnson, 1 J. & W. 476; see ante, p. 415, note.] 
 
OF TRUSTEES FOE MARRIED WOMEN. 605 
 
 an assignment was made of her interest to trustees 'upon the trusts 
 declared previously to the marriage. The husband died before the 
 whole of the wife's equitable property which had been settled had, 
 been reduced into possession by the trustees of the settlement ; and 
 a bill was then filed by the trustees to have their rights under the 
 settlement declared. The Vice-Chancellor held that the husband's 
 assignment in this case did not afi'ect any part of the wife's interest, 
 which was not reduced into possession in his lifetime.(i) It is there- 
 fore settled by this decision, that an assignment for valuable consi- 
 deration by the husband of his wife's equitable property, which is not 
 accompanied or followed by any act reducing it into possession in his 
 lifetime is inoperative as against her title by survivorship. 
 
 But although the wife's title by survivorship should be held to be 
 defeated by the husband's assignment for valuable consideration, it 
 is clear, at all events, that her equitable right to a settlement out of 
 the property would still remain, and would be enforced against the 
 persons claiming under the assignment, whenever they came to the 
 court to obtain possession of the fund.(A) 
 
 It is immaterial, that the wife herself joins with her husband in 
 executing any assignment of her equitable interests, which is in- 
 operative to bind her title by survivorship. For any deed executed 
 by her during the coverture is merely inoperative, and it will be com- 
 petent for her or for her representatives *after his death, to po,.-,g-, 
 dissent from it, and to enforce her claim to the property, as if '- -^ 
 she had made no such deed.(Z) 
 
 If the husband survive his wife, then he, as her administrator, will 
 be absolutely entitled to all her personal estate, though it continued 
 in action or unrecovered at his death. (m)' And although he die be- 
 fore the property is got in, his representatives, and not the wife's 
 
 (i) Lord Salisbury 1). Newton, 1 Ed. son, 1 Russ. 1; Honnor ■«. Morton, 3 
 
 370. Russ. 65; Hutchings v. Smith, 9 Sim. 
 
 (i) Vide supra. 137. [Ante, 415, note.] 
 
 (0 Wright V. Hutter, 2 Ves. jun. 673 ; (m) Squib v. Wyn, 1 P. Wms. 378 ; 
 
 Macaulayt). Phillips, 4 Ves. 16; Horns- 1 Rop. Hus. & Wife, 203. 
 by ^. Lee, 2 Mad. 18; Purdew v. Jack- 
 
 ^ Accord, Whitaker v. Whilaker, 6 John. R. 112 ; Hunter v. Hallelt, 1 Edw. Ch. 
 388; Hoskins v. Miller, 2 Dev. R. 360; Lockwood v. Stockholm, 11 Paige, 87 
 Biggert v. Biggert, 7 V/atts, 563; Clay v. Irvine, 4 Watts & Serg. 232; Hatton v 
 Weems, 12 G. & J. 83; Glasgow^. Sands, 3 G. & J. 96; Donnington v. Mitchell 
 1 Green, Ch. 243; Dawson v. Dawson, 2 Strob. Eq. 34; Lea v. Wheeler, 4 Geo 
 541; Wilkinson v. Perrin, 7 Monr. 214; Jackson v. Sublitt, 10 B. Monr. 469 
 Lowry v. Houston, 4 How. Miss. 224. Contra, Curry v. Falkington, 14 Ohio, 100 
 Baldwin v. Carter, 17 Conn. 201 ; Byrne v. Stewart, 2 Desaus. 135. See 2 Kent's 
 Comm. 135. 
 
 The husband is also entitled to personal property settled to her separate use 
 for life, unless there be limitations over. See post, note to page 425. 
 
606 OP TBCSTEKS FOR MARKIBD WOMEN. 
 
 next of kin, will be entitled. («) Hence, an assignment by the hus- 
 band of his wife's cTioses in action or equitable interest in personalty, 
 is good against every one except her, surviving ; for it will, of course, 
 be binding on himself, and all parties claiming under him.(o) 
 
 In enforcing the equity of the wife for a settlement, the interests 
 of her children will always be considered and protected by the 
 court, (p)' But the equity, notwithstanding, belongs personally to 
 the wife, and it cannot be enforced by her children after her death 
 in opposition to the husband's title by survivorship. (§') And we have 
 already seen, that the wife herself will be at liberty to waive her 
 right to a settlement, and so to defeat her children's interest at any 
 time before the instrument is aqtually executed, and this though the 
 Master have actually approved of a settlement under a decree.fr) 
 However, the title of the husband by survivorship is not favored in 
 equity to the same extent as that of the wife ; and it is settled, that 
 where there has been a decree or order in a suit, referring it to the 
 Master to approve of a proper settlement out of the wife's equitable 
 property, the equity of the children for a settlement will prevail 
 against the husband's right by survivorship, though the wife died 
 before the settlement is made, or any further proceedings are taken. («) 
 
 (ra) Cart v. Eees, 1 P. Wms. 381, (5) Scriveti u. Tapley, 2 Ed. 337 ; S. 
 
 cited; Humphrey «. Bullen, 1 Atk. 458; C. Arabl. 509; Lloyd v. Williams, 1 
 
 Elliott V. Collier, 3 Atk. 526. Mad. 450. [Martin v. Sherman, 3 Sandf. 
 
 (0) White V. St. Barb, 1 Ves. & B. Ch. 341 ; Bell v. Bell, 1 Kelly, 637 ; 
 
 405; see Ranking v. Bernard, 5 Mad. Barker v. Woods, 1 Sandf. Ch. 129.] 
 32. (r) Ante, and see Rowe 0. Jackson, 
 
 (p) Murray v. Ld. Elibank, 10 Ves. 12 Dick. 604; Murray v. Ld. Elihank, 
 
 84; Lloyd v. Williams, 1 Mad. 450; 10 Ves. 84; Martin u. Mitchell, 10 Ves. 
 
 Groves v. Clark, 1 Keen, 132. [Howard 89, cited ; Steinraetz v. Halthin, 1 G1.& 
 
 V. Moffatt, 2 J. C. R. 206 ; Udall v. Ken- J. 64. 
 
 iiey, 3 Cow. 609 ; Groverman v. Diffen- {s) Murray v. Ld. Elibank, 10 Ves. 
 
 derfer, 11 Gill & John. 22; Napier t). 84; Lloyd v. Williams, 1 Mad. 450; 
 
 Howard, 3 Kelly, 193; Andrews?;. Jones, Groves v. Clarke, 1 Keen, 132. [Mum- 
 
 10 Alab. 401 ; notes to Murray v. Lord ford v. Murray, 1 Paige, 621 ; Helms?;. 
 
 Elibank, ut supr.] Franciscus, 2 Bland. Ch. 581.] 
 
 ' Where there are no children, the husband's next of kin are entitled to the 
 fund. The proper form of settlement, therefore, is to the wife for life, remain- 
 der to her children as she should appoint, remainder to the children in default 
 of appointment, and in default of children, if the wife survive, to her absolutely, 
 or if the husband survive, to him or those claiming under him. Carter v. Tag- 
 gart, 9 Eng. L. & Eq. 167; 1 DeG. Mac. & Gord. 286; Bagshaw v. Winter, 11 
 Eng. L. & Eq. 274. Circumstances may exist, however, in a particular case, 
 which would make a power of disposal by will in the wife, with a limitation in 
 default of appointment to her next of kin, a proper limitation, instead of the 
 ultimate one to the husband ; but a special case must be made out. That the 
 wife's relatives are in needy circumstances is not enough. Carter v. Taggart, 
 ut supr. 
 
OF TRUSTEES FOR MARRIED WOMEN. 607 
 
 And it is immaterial, that the decree or order is for a settlement on 
 the wife alone, without mentioning the children. (<) 
 
 It was decided by Sir J. Leech, in Steinmetz v. Halthin,(M) that 
 this equity attaches in favor of the children immediately upon the 
 filing of the hill, and that although the wife dies before any further 
 proceedings are taken, the husband will be precluded from taking the 
 whole as her administrator ; and this view of the law appears to 
 have been supported by the observations of Lord Langdale, M. R., 
 in the recent case of Groves v. Clarke, (a;) Ho'frever, in the subse- 
 quent case of De la Garde v. Lempriere,(t/) the same learned judge 
 refused to follow the decision in Steinmetz v. Halthin, and after 
 examining the principles on which the wife's equity for a settlement 
 depended, and was dealt with by the court, his Lordship held, in 
 opposition to that case, that the wife's equity did not attach merely 
 upon Hhe filing of the hill, and that upon her death, hefore rHc4-|Q-i 
 decree, her husband became absolutely enljitled to her equitable 
 property as her personal representative.(«/) And this, as the latest 
 decision, must be treated as now governing the law on the point in 
 question. 
 
 Where there are no children, the right of survivorship, as between 
 the husband and wife, will not be affected by a decree or order of 
 reference to approve of a settlement, even though the husband may 
 have carried in proposals for a settlement under the order.(2) But if 
 the proposal had been approved of by the court, and a settlement 
 ordered to be made in accordance with it, and the wife then died, 
 this would, in all probability, be considered to^bind the husband as 
 much as if the settlement were actually executed. (a) 
 
 It has been hitherto assumed, that the interest of the husband in 
 his wife's property has not been modified or excluded by any trust or 
 limitation, giving her the sole and exclusive enjoyment of it. At 
 law a married woman, during the coverture, is in general incapaci- 
 tated from acquiring or holding property separately from her hus- 
 band.(6) But in equity it has been long settled, that a trust by deed 
 or will of real or personal property, for the separate enjoyment of a 
 feme coverte, is valid, and will be enforced in her favor, to the exclu- 
 sion of the husband's title in his marital right.(c) 
 
 It is now settled, that a trust for a woman's separate use may be 
 effectually created, although she be unmarried at the time, and no 
 
 (0 Groves v. Clarke, 1 Keen, 132; (z) Macaulayu. Phillips, 4 Ves. 19. 
 Groves u. Perkins, 6 Sim. 584. [See Hill (a) Ibid. 
 V. Hill, 3 Strobh. Eq. 94.] (6) i Rop. Husb. & Wife, 3, 53; and 2 
 
 (k) 1 Gl. &J. 64. lb. 151. 
 
 (x) iKeen, 132. (c) 2 Rop. Husb. & Wife, 151. [2 
 
 (i/) De la Gajde v. Lempriere, 6 Kent's Comm. 162 ; note to Hulme v. 
 
 Beav. 344. Tennant, 1 Lead. Cas. Eq. 370.] 
 
608 OP TRUSTEES FOR MARRIED WOMEN. 
 
 particular marriage is in contemplation ; and if she marry at any- 
 time afterwards, the trust will immediately attach upon the property 
 so as to exclude the husband's title, although no further settlement 
 be executed.(<i) This doctrine was shaken to the foundation by 
 Lord Cottenham, when Master of the Rolls.- It was laid down by 
 that learned judge in the case of Massey v. Parker,(e) that where 
 property is given, or settled to the separate use of a woman who 
 zvas unmarried at the time, it vests, on her marriage, in her hus- 
 band absolutely in his marital right.^ But in the subsequent cases 
 of Tollett V. Armstrong,(/) and Scarborough v. Bowman,(^) in which 
 it became necessary to adjudicate on the point, Lord Langdale, M. R., 
 decided in favor of the validity of the trust for the separate use; 
 and in affirming those decisions on appeal, Lord Cottenham, when 
 Chancellor, formally overruled his own dictum in Massey v. Parker, 
 and finally established the doctrine as stated above. (A) 
 
 And it is settled, that the trust for the separate use, though sus- 
 pended by the cessation of coverture,^ will re-attach on a subsequent 
 marriage,^ if a future marriage be contemplated by the terms of the 
 r*4.901 *'''"S*'(*) -^'^*') *if ^^^ trust be confined in its terms to the 
 *- first coverture, it will not be extended to a subsequent msx- 
 
 riage.(A:)'' 
 
 (d) Anderson u Anderson, 2 M. & R. (i) Clark v. Jacques, 1 Beav. 36; 
 427 ; Davies v. Thornycroft, 6 Sim. 420 ; Dixon v. Dixon, lb. 40. And although 
 Tullett V. Armstrong, 1 Beav. 1 ; 4 M. & ihe wife was an infant at the period of 
 Cr. 390; Scarborough t). Borman, 1 Beav. the first settlement. Ashton v. M'Dou- 
 34; and 4M. &Cr. 377. gall, 5 Beav. 56. 
 
 (e) 2 M. & K. 174. {k) Knight v. Knight, 6 Sim. 121; 
 (/) 1 Beav. 1. Benson i;. Benson, lb. 126. [Overruled, 
 (g-) 1 Beav. 34. see below.] 
 
 \h) 4 M. & Cr. 377. [Gaffee's Trust, 
 14 Jur. 277; 1 McN. &Gord. 541.] 
 
 > Accord, Haraersley v. Smith, 4 Whart. 126 ; Lindsay v. Harrison, 3 Eng. 
 Arkan. R. 311 ; see Dick v. Pitchford, 1 Dev. & Batt. Eq. 480. But in Beaufort 
 V. Collier, 6 Hump. 487; Shirley v. Shirley, 9 Paige, 363; Fellows v. Tann, 9 
 Alab. 1003; Fears d Brooks, 12 Geo. 197, the later English doctrine in Tollett 
 V. Armstrong was followed. 
 
 ^Hamersley v. Smith, 4 Whart. 126; Smith v. Starr, 3 Id. 62; see Clarke u. 
 Wyndham, 12 Alab. 800. 
 
 " Contra, Hamersley v. Smith, ut supr. 
 
 * But irt the case of Gaffee's Trust, 14 Jur. 277; 1 Mac. & Gord. 541 (over- 
 ruling S. C. 13 Jur. 74; 6 Hare, 101), the wife's property, by a post-nuptial pet- 
 tleraent, was vested in trustees in trust to pay the income " to such persons, and 
 for such purposes, as she should appoint; but not so as to dispose of the same 
 by way of anticipation ; and, in default of appointment, into her own hands, for 
 her separate use, notwithstanding her coverture, independent of the saidG." (her 
 then husband), " who is not to intermeddle therewith ; neither is the same to be 
 subject or liable for his debts, contracts, or engagements." No express estate 
 
OF TRUSTEES FOR MARRIED WOMEN. 609 
 
 As this separate ' interest of a married -woman is the subject only 
 of equitable cognizance, the interposition of trustees was at first 
 deemed essential for its creation.(Z) And where property is intended 
 to be settled to the separate use of married women, it. is doubtless the 
 more proper and more convenient course to vest it in trustees, (m) 
 However, it has been long settled, that a separate estate may exist 
 without the intervention of trustees, and although the husband will 
 in that case take the legal interest, yet he will be treated in equity 
 as a trustee for the separate benefit of his wife.(n) 
 
 It is clear that no particular form of words is necessary to create 
 a trust for a femes separate use.^ Such a trust may either be de- 
 
 (0 Harvey v. Harvey, 1 P. Wins. 125; Prideaux, 3 Bro. C. C. 383; Parker v. 
 
 S. C. 2 Vern. 659; Barton v. Pierpoint, Brooke, 9 Ves. 283; Baggett v. Meux, 
 
 2P. Wms. 79. 13 Law Journ. N. S., Chanc. 228; [1 
 
 (m) 2 Rop. Husb. & Wife, 152. Phill. 627] ; Rich v. Cockell, Id. 375; 
 
 \n) Bennet v. Davis, 2 P. Wms. 316; Major v. Lansley, 2 R. & M. 355. [See 
 
 Darley v. Darley, 3 Atk. 399; Lee v. ante, p. 406, and note.] 
 
 for life was limited to the vpife ; but an estate for life was given to the husband 
 after the decease of the wife; and, after the decease of the survivor, the trust 
 property was limited to the children of the marriage. It was held by Lord Ch. 
 Cottenham, that the clause against anticipation was not confined to the then 
 existing coverture ; but extended to a subsequent marriage. The cases of Knight 
 V. Knight, Benson v. Benson, cited above, and Bradley v. Hughes, 8 Sim. 149, 
 were said to proceed on " a supposed rule of equity which does not now exist ;" 
 and it was remarked, " It being now settled, that a gift to the separate use, with- 
 out power of anticipation, will operate on all the covertures of a woman, unless 
 these provisions are destroyed while she is discovert, these cases cannot be con- 
 sidered as applicable to this case, which must therefore depend on the construc- 
 tion to be put on the words used, namely, whether the provisions for the separate 
 use, and against anticipation, are applicable to the whole of the life estate given, 
 or only during the then existing coverture ;" and the rule was laid down, " that if 
 the restriction against anticipation forms part of the only sentence, which gives 
 any estate, and is made part of such gift, then the estate and the restriction must 
 be commensurate." 14 Jur. 279. 
 
 ' Perry v. Boileau, 10 S. & R. 208; Lewis v. Adams, 6 Leigh, 320; Ballard v. 
 Taylor, 4 Desaus. 550 ; Stewart v. Kissam, 2 Barb. S. C. 494 ; Heathman v. Hall, 
 3 Ired. Eq.414; Fearn -u. Brooks, 12 Geo. 197 ; Beaufort «. Collier, 6 Humph. 487; 
 note to Hulme v. Tenant, 1 Lead. Cas. Eq. 1st Am. Ed. 376 ; but the intention to 
 exclude the husband must be manifest, Evans «. Knorr, 4 Rawle, 66; Ashcraft v. 
 Little, 4 Ired. Eq. 236 ; Williams v. Clairborne, 7 Sm. & M. 488 ; Carroll v. Lee, 
 3 G. & John , 505 ; Cook v. Kennedy, 1 2 Alab. 42 ; Fearn v. Brooks, ut supra ; note 
 to Hulme v. Tenant, ut supra. It is impossible, however, to reconcile all the de- 
 cisions, under this principle. The following expressions have been held to be 
 sufficient to create a separate use. A conveyance to a married woman " and 
 her heirs, to have and to hold the same to and for her use, benefit, and right, and 
 of the heirs aforesaid, without let, hindrance, or molestation whatever," New- 
 man V. James, 12 Alab. 29 ; or "in trust for the proper use and benefit of ihefeme 
 coverte, and her heirs for ever;" Warren v. Haley, 1 Sm. & Marsh. 647; "for the 
 use and benefit for the wife and her heirs," Good v. Harris, 2 Ired. Eq. 63 ; " for 
 
 39 
 
610 OP TRUSTEES FOR MARRIED WOMEN. 
 
 clared in express terms, or it may be inferred from the provisions or 
 directions as to the mode of enjoyment or management of the pro- 
 
 the entire use, benefit, profit, and advantage'' of the wife, Heathman v. West 3 
 Ired. Eq. 44 ; "for her own proper use and benefit," Griffith v. Griffith, 5 B. Mon- 
 roe, 103 ; " to the use and benefit of A. and children, to remain in possession of 
 A.," Hamilton v. Bishop, 8 Yerg. 33; "for her use and benefit, as the trustee may 
 think proper and best; without being subject to her debts and contracts in any 
 way whatsoever, or her husband, or any future husband, only for her support and 
 maintenance," Clarke v. Windham, 12 Alab. 798 ; "for her only use and benefit," 
 Collins V. Rudolph, 19 Alab. 616; "for her use and benefit during her life," 
 Strong V. Gregory, Id. 146; "as her separate and distinct property," Petty u. 
 Boothe, Id. 633; bequest to a married woman, for "her own use:" Jamison v.- 
 Brady, 6 S. & R. 468; "for her own use during her natural life," Heck v. Clip- 
 pinger, 5 Barr, 385 ;" to be at her own disposal in true faith," Bridges v. Wood, 4 
 Dana, 610; "for her own and sole use for ever," Fisher u. Filbert, 6 Barr, 61; "for 
 her own proper use during her lifetime," Snyder i;. Snyder, 10 Barr, 424; so a 
 declaration of trust for Mrs. S. ; and that the trustee would account for, and pay over 
 to her individually all the moneys that might be received thereon ; Stuart v. Kis- 
 sam, 2 Barb. S. C. 494. So in Tyson's App., 10 Barr, 224, where a direction to 
 pay the interest of a fund half yearly, to a. feme coverte, seems to have been held to 
 create a separate use, sed qu. So in Williams v. MauU, 20 Alab. 721, where slaves 
 were given in trust for a married woman, with a provision that " the labor and 
 increase of the negroes should in no manner he liable for the debts of her present 
 or any future husband," it was held that, as against the personal representatives 
 of the husband, it constituted a separate estate. And in the recent case of Fears 
 ■u.-Brooks, 12 Geo. 195, where a testator, after providing that the shares of his 
 daughters in the residuum of his estate should be paid over to a trustee for their 
 use, directed the trustee to receive from, and receipt to, his executors, for the 
 shares, " to be vested by him in such property as in his judgment may be most 
 conducive to their (his daughters) comfort and interest, and to have the title to 
 such investment made to him as trustee for their use and benefit," it was held 
 that a separate estate was created in the daughters; and that their power of 
 alienation was restrained. A conveyance by a husband, in trust for his wife, will 
 also be necessarily for her separate use, otherwise the disposition would be futile, 
 Steel V. Steel, 1 Ired. Eq. 452. It has been held, that where there is a gift to 
 a separate use in a will, and "in addition to the legacy," another sum is given 
 to the same trustee, the latter is also separate estate. Warwick v. Hawkins, 13 
 Eng. L. & Eq. 174; Davis u. Cain, 1 Ired. Eq. 304, accord; but see Evans i). 
 Knorr, 4 Kawle, 66. 
 
 Gifts, or conveyances, in the following terms, have been held not to create a 
 separate use : " For the joint use" of husband and wife, Bender v. Reynolds, 12 
 Alab. 441 ; Geyer v. Branch Bank, 21 Alab. 414; " the gift not to extend to any 
 other person," Ashcraft v. Little, 4 Ired. Eq. 236; "all to be for her and her heirs' 
 proper use," Rudisell v. Watson, 2 Devereux Eq. 430 ; " for her use, benefit, and 
 behoof," Torbert v. Twining, 1 Yeates, 432; or in "trust for the use" of the 
 feme, Tenant «.Stoney, 1 Rich. Eq. 222. And in Fears v. Brooks, 12 Geo. 198, it 
 was conceded that the words " to her use and benefit" would not create a sepa- 
 rate estate. So in Clevenstine's App., 15 Penn. St. R. 499, of a legacy to a fern, 
 "she to have the use of the same during her life," and after her death, to her chil- 
 dren. It is clear, too, that the mere intervention of a trustee, will not create a 
 separate use WiUiams v. Manll 20 Alab. 727 ; Hunt v. Booth, 1 Freera. Ch. 215; 
 Mayberry i;. Neely, 5 Hump. 339 and a fortiori, a direct gift to a married woman 
 
OF TRUSTEES TOR MARRIED WOMEN. 611 
 
 perty.(o) Thus a limitation to the " separate" use of the mie,{p) or 
 ■what has been decided to be the same thing, to her " sole" use,(5) 
 •will be clearly sufficient. And so will any direction or limitation, 
 ■which is incompatible ■with the existence of the husband's title, as if 
 the property be given to be at the wife's " own disposal,"(r) or to be 
 enjoyed "independent of the husband,"(s) or for her own use and 
 benefit " independent of any other per8on,"{t) or if it be declared, 
 that " her receipts shall be a good discharge,"(w) or that " the hus- 
 band should not dispose of it without her consent."(a;) So a declara- 
 tion, that the estate is for the " livelihood" of the wife,(«/) or that 
 she shall " enjoy and receive" the rents and profits,(2) has been held 
 sufficient to create a trust for her separate use ; although from the 
 tone of the modern cases, it might possibly be a question whether 
 these last decisions would be recognised as authorities at the present 
 day. 
 
 However, the intention to create a separate estate, must be clearly 
 and unequivocally expressed, in order to deprive the husband of his 
 marital rights. And in modern times the judges have required much 
 more stringent expressions for this purpose, than were once con- 
 sidered sufficient. It was said in a late case by Lord Brougham, that 
 the expressions must be such as "leave no doubt of the intention, and 
 which forbid the court to speculate on what the probable object of 
 the donor might have *been."(a) Thus it has been held, r-^^n-,-. 
 that a simple trust to pay an annuity or interest to a married ^ -I 
 woman,(6) or "for her own use and benefit,"(c) or "into her own 
 
 (o) Stanton v. Hall, 2 R. & M. 180 ; Stanton v. Hall, 2 R. & M. 180 ; Tylpr 
 
 Tyler v. Lake, Id. 188. v. Lake, Id. 188. 
 
 (p) Scarborough v. Borman, 1 Beav. (a;) Johnes v. Lockhart, 3 Bro. C. C. 
 
 34 ; 4 M. & Cr. 377. 383, n. 
 
 (g)Adamsoni).Armitage, Coop. 283 ; (y) Darley v. Darley, 3 Atk. 399. 
 
 S. C. 19 Ves. 416; Ex parte Ray, 1 [See, however, Hawkins u. Coulter, 2 
 
 Mad. 199; Wills^. Sayers,4Mad. 409; Port. Alab. 476; 2 Spence's Eq. Jur. 
 
 Ex parte KiUick, 8 Jurist, 67 ; [3 Mont. 508, n. (d).] 
 
 Deao. & De G. Bank. Cas. 480.] (r) Tyrrell r. Hope, 2 Atk. 561; and 
 
 (r) Pritohard v. Ames, T. & R. 222 ; see Atoherley v. Vernon, 10 Mod. 531. 
 
 Stanton d. Hall, 2 R. & M. 180; Tyler (o) Tyler v. Lake, 2 R. & M. 189. 
 
 V. Lake, Id. 188. [Fears ?;. Brooks, 12 Geo. 196.] 
 
 (s) Wagstaff V. Smith, 9 Ves. 420; (6) Dakins v. Beresford, 1 Ch. Ca. 
 
 Dixon t). Olmius, 2 Cox, 414 ; Simmons 194 ; Lumb v. Milnes, 5 Ves. 520 ; see 
 
 V. Horwood, 1 Keen, 7; Newlands v. Brown v. Clark, 3 Ves. 166; Stanton 
 
 Paynter, 4 M. & Cr. 408 ; TuUett v. v. Hall, 2 R. & M. 175. 
 
 Armstrong, 1 Beav. 1 ; 4 M. & Cr. 377. (c) Wills v. Sayers, 4 Mad. 409 ; 
 
 («) Margetts t). Barringer, 7 Sim. 482. Roberts v. Spicer, 5 Mad. 491 ; [See 2 
 
 [See Ashcraft v. Little, 4 Ired. Eq. Port. Alab. 475] ; Kensington v. Dol- 
 
 236.] lond, 2 M. &K. 184 ; Beales v. Spencer, 
 
 (u) Lee V. Prideaux, 3 Bro. C. C. 381 ; 2 N. C. C. 651. 
 
 is not. Fitch «. Ayer, 2 Conn. 143; Moore d. Jones, 13 Alab. 296; Halli;. Sayre, 
 10 B. Monr. 46. See, further, note to Hulme v. Tennant. And for the separate 
 use now in New York, see Noyes v. Blakeman, 3 Sandf. S. C. 538, and post. 
 
612 OF TRUSTEES FOE MARRIED WOMEN. 
 
 proper hands for her own use and benefit,"(cZ) will not create a trust 
 for her separate use. Although it was held on one occasion by Lord 
 Alvanley, that the use of the word "proper" would be sufficient.(e) 
 In a very recent case5(/) Sir J. Wigram, V. C, decided that the 
 same word would not create a trust for a separate use, although his 
 Honor appears to have come to that determination with considerable 
 reluctance, and solely on the authority of the decision in Tyler v. Lake. 
 
 The trust must be for the benefit of the wife exclusively of any 
 other person : and a gift for the benefit of the children as well as the 
 wife, has been held not to create a trust for her separate use ; al- 
 though the terms of the gift would otherwise have had that opera- 
 tion.(^) 
 
 In equity a married woman is considered as a feme sole in respect 
 of her separate property. (A) Therefore, where personal estate is 
 given simply to her separate use, without restricting her power of 
 disposing of it, or prescribing the mode in which that power is to be 
 exercised, she will take the property with all its incidents, and 
 amongst others with an absolute power of alienation. («')' However, 
 
 (d) Tyler v. Lake, 4 Sim. 144 ; S. C. (h) Hulme v. Tennant, 1 Bro. C. C.21 
 2 R. & M. 183; and see Massey 1;. [1 Lead. Cas.Eq. 355, and notes]; Sock- 
 Parker, 2 M. & K. 181 ; Blacklow v. ett v. Wray, 4 Bro. C. C. 486; Peacock 
 Laws, 2 Hare, 49. v. Monk, 2 Yes. 190 ; Pybus v. Smith, 
 
 (e) Hartley v. Hurle, 5 Ves. 545. 4 Bro. C. C 346 ; Lillia v. Ayre, 1 Yes'. 
 (/)Blacklowi;.Laws, 2Hare,49, 53. jun. 278; WagstafF u. Smith, 9 Ves. 
 (g-) Wardle v. Claxton, 9 Sim. 524. 524; Wills v. Dawkins, 12 Yes. 501. 
 
 [Ashcraft v. Little, 4 Ired. Eq. 236; Sturgis i). Corp, 13 Yes. 190. [2 Kent's 
 
 Iiigev. Forrester, 6 Alab. 418 ; but see Comm. 162.] 
 
 Jasper v. Howard, 12 Alab. 652 ; Good (i) Fettiplace v. Gorges, 3 Bro. C. 
 
 V. Harris, 2 Ired. Eq. 630 ; Hamilton v. C. 10. 
 
 Bishop, 8 Yerger, 33.] 
 
 ' The authorities in the United States are divided on this point. On the one 
 hand, a feme coverte is held to possess only such power over her separate estate 
 as is expressly given to her. This is the rule in Pennsylvania (Lancaster v. Do- 
 lan, 1 Eawle, 231), South Carolina (Ewing v. Smith, 3 Desaus. 417; Eeedti. 
 Lamar, 1 Strobh. Eq. 27; Calhoun v. Calhoun, 2 Id. 231); Mississippi (Dotyi). 
 Mitchell, 9 Sm. & M. 435) ; Tennessee (Marshall v. Stephens, 8 Hump. 159; Sut- 
 ton V. Baldwin, 8 Hump. 209). In New York, a similar doctrine was held by 
 Ch. Kent in Jaques v. The Meth. Epis. Church, 3 J. C. R. 78 ; but this was over- 
 ruled by the Court of Appeals in 17 John. 548 ; and Dyott v. N. A. Coal Co., 20 
 Wend. 570; and the English rule established. Some, recent decisions in that 
 State, however, have placed a construction on the Revised Statutes, which limits 
 the power of a wife over her separate estate (where the trust is to pay over the 
 rents and profits to her for life) in the most stringent manner. Her interest is 
 declared to be, inalienable, and she cannot, in any way, charge the estate, with- 
 out the assent of the trustee ; and that assent must be expressly authorized by 
 the trust. L'Amoureux v. Yan Rensselaer, 1 Barb. Ch. 34; .Rogers v. Ludlow, 3 
 Sandf.Ch. 538 ; Leggett v. Perkins, 2 Comst. 297; Noyes v. Blakeraan, 3 Sandf. 
 
OF TRUSTEES FOR MARRIED WOMEN. 613 
 
 where real estate is limited absolutely to the separate use of a mar- 
 ried woman, she can only dispose of it in the manner prescribed by 
 law, viz., by a conveyance duly aclcnowledged,(A)(l) unless indeed a 
 power of disposition be expressly reserved to her by settlement, or 
 ante-nuptial agreement, or by the instrument of gift, in which case 
 she may unquestionably pass her interest by a due exercise of that 
 power.(Z) And an agreement for valuable consideration to exercise 
 such a power will be binding on her in equity, (m) 
 
 So even with regard to her separate personal estate, if a particu- 
 lar mode of disposition be prescribed by the settlempnt or instrument 
 of gift, she cannot dispose of it in any other manner,(n) not even by 
 means of her examination in court.(o) Unless, indeed, she take the 
 absolute interest *in default of exercising the power so given p^ . ^o-, 
 her, in which case she may of course dispose of that interest in L "J 
 accordance with the general rule, and irrespectively of the particular 
 
 {k) Peacock v. Monk, H Ves. 192, (m) Dowell v. Dew, 12 Law Journ. 
 
 cases cited; Dillon v. Grace, 2 Sch. & N. S., Clianc. 158. [1 Younge &Coll. C. 
 
 Lef. 462, 4 ; Wright o. Cadogan, 2 Ed. C. 345, 355 ; affirmed 12 L. J. Ch. 164 ; 
 
 257; Ambl, 468; 2 Eop. Husb. and 7 Jur. 117.] 
 
 Wife, 185; 2 Story Eq.Jur. } 1391; sed (n) Ross v. Ewer, 2 Atk. 156; Croft 
 
 vide Major 1). Lansley, 2 R. & M. 355; v. Slee, 4 Ves. 60, 64; Anderson v. 
 
 [and, Albany Fire Ins. Co. v. Bay, 4 Dawson, 15 Ves. 532; Hopkins ?;. My- 
 
 Comst. 9. See Shipp v. Bowman, 5 B. all, 2 R. & M. 86. [Ins. Co. v. Bay, 4 
 
 Monr. 163.] Comst. 9 ; Fears v. Brooks, 12 Geo. 200 ; 
 
 (l) Rippon V. Dawding, Ambl. 565; Leaycraft v. Hedden, 3 Green's Ch. 
 
 Rich V. Beaumont, 3 Bro. P. C. 308; 512; Williamson ■«. Beckham, 8 Leigh, 
 
 Tomlinson v. Dighton, 1 P. Wms. 149; 20.] 
 
 Peacock i;. Monk, 2 Ves. 191; Downes (o) Richards v. Chambers, 10 Ves. 
 
 V. Timperon, 4 Russ. 334; Wright v. 580. 
 Cadogan, 2 Ed. 239. 
 
 (1) However, this rule does not apply to the income of real estate, limited to the 
 separate use of a married woman: for the rents and profits of such real estate 
 may be disposed of by her without any express power for that purpose, in the 
 same manner as her separate personal estate. 2 Rop. Husb. and W. 184; 2 
 Story's Eq. Jur. § 1393 [Vizonneau v. Pegram, 2 Leigh, 183] : and a similar de- 
 cision has been made in a late case with respect to an annuity charged on land, 
 and given to the separate use of a feme coverte. Major v. Lansley, 2 R. & 
 M. 355. 
 
 S. C. 538. On the other hand, in New Jersey (Leaycraft v. Hedden, 3 Green's Ch. 
 551); Connecticut (Imlay v. Huntington, 20 Conn. 175); Kentucky (Coleman v. 
 WooUey, 10 B. Monr. 320) ; Shipp v. Bowman, 5 Id. 163) ; Virginia (Vizonneau 
 V. Pegram, 2 Leigh, 183); North Carolina (Newlin v. Freeman, 4 Ired. Eq. 312) ; 
 Alabama (Bradford t). Greenway, 17 Alab. 805; Collins v. Lavenburg, 19 Alab. 
 685) ; Georgia (Fears v. Brooks, 12 Geo. 200 ; Wyly v. Collins, 9 Geo. 223) ; and 
 Missouri (Coats v. Robinson, 10 Mis. 757), the English rule, as is stated in 
 the text, has been adopted. See further, the note to Hulme v. Tenant, ut 
 supra. 
 
614 OF TRUSTEES FOR MARRIED WOMEN. 
 
 power.(p) If a trustee act upon a disposition by a married woman 
 of her separate estate, -which is not executed according to her po-wer, 
 he will be liable to replace the fund.(g') 
 
 But a married woman may be restrained by the terms of the trust 
 from alienating or anticipating the income of her separate estate 
 during the existing or any future coverture ; and although the court 
 appears at one time to have declined to sanction a practice so directly 
 opposed to the general principle of law,(r) its validity has now long 
 been established. (s)* The prohibition against alienation in these 
 cases becomes an essential part of the separate estate, with which it 
 must stand and fall.(t) It will therefore operate only during the 
 continuance of the coverture, and a single woman until marriage, or 
 a married woman after the death of her husband, and until she marry 
 again, will be fully competent to dispose of the property notwith- 
 standing the existence of such a clause, (m) And it is no objection 
 to the validity of the restriction, that the woman is unmarried at the 
 time of the creation of the trust.(a;) Nor is the restriction extin- 
 guished by the cessation of her coverture on the death of her first 
 husband, but it will be merely suspended during her widowhood, and 
 will re-attach on her second marriage, without any resettlement.(y)(l) 
 
 It is settled that an express negative declaration is requisite to 
 deprive a feme coverte of her prima facie right of disposing of her 
 
 (p) Elton V. Shepherd, 1 Bro. C. C. Tullett v. Armstrong, 1 Beav. 23 ; 4 M. 
 
 532 ; Anderson v. Dawson, 1 5 Ves. 532 ; & Cr. 393. 
 
 Baiford v. Street, 16 Ves. 135; Barry- («) Tullett i). Armstrong, 4 M. & Cr. 
 
 more v. Ellis, 8 Sim. 1 ; 2 Rob. Husb. 394. 
 and Wife, 230. («) Brown v. Pocock,2 R. &M. 210: 
 
 (g) Hopkins v. Myall, 2 R. & M. 86. 2 M. & K. 189 ; Knight v. Knight, 6 
 
 [But as to the costs, see Mant v. Leith, Sim. 121; Tullett v. Armstrong, 4 M.& 
 
 10 Engl. L. & Eq. 123.] Cr. 406. 
 
 (r) Hulme v. Tennant, 1 Bro. C. C. (a:) Tullett u. Armstrong, iBeav. 1;4 
 
 16; Pybus V. Smith, 3 Bro. C. C. 340; M. & Cr. 290; Scarborough v. Borman, 
 
 1 Ves. jun. 189; see Jackson v. Hob- 1 Beav. 34; 4 M. & Cr. 377, 390. 
 house, 2 Mer. 487. (y) Clark •;;. Jacques, 1 Beav. 36; see 
 
 («) Jackson v. Hobhouse, 2 Mer. 488 ; 4 M. & Cr. 406. [Gaffee's Trust, ante, 
 
 p. 420, note.] 
 
 (1) It is clear that a widow during her discoverture would have the power of 
 absolutely alienating her trust property, notwithstanding a restriction against anti- 
 cipation during coverture. But it might be a question whether a settlement by 
 her on her second marriage, limiting the property to herself absolutely for her 
 separate use, would remove the previous restriction. The point does not seem 
 to have been decided in practice. 
 
 ' A trust for a, feme coverte for her separate use, declared not to be assignable, 
 is valid ; and an assignment by her thereof will be void, Rennie v. Ritchie, 12 
 CI. & Fin. 204. 
 
OF TRUSTEES FOE MARRIED 'WOMEN. 615 
 
 separate estate ;{z) and the case of Hovey v. Blakeman,(a) whicli 
 imports a contrary doctrine, cannot now be considered of any 
 authority. Thus it has frequently been determined, that a direction 
 to pay the income from time to time into the proper hands of the 
 wife, is sufficient of itself to deprive her of the absolute disposing 
 power over her whole interest.(6)' 
 
 But in a very recent case, where the trust was to pay the income 
 to such persons and for such purposes as the wife should by any wri- 
 ting under her hand, except in any mode of anticipation, appoint, and 
 in default of *such appointment, into her hands, it was held by p^ij^oq-] 
 Sir K. Bruce, V. C, that the words were sufficient to restrict ^ -^ 
 the wife from anticipation.(e) And if the intention to restrain the 
 power of alienation be clearly collected from the several clauses of 
 the will, they will all be construed together, and effect will be given 
 to the general intention. (ci)^ 
 
 In the ordinary form of limitation in these cases, the trustees are 
 directed to pay the income to such persons, &c., as the wife, notwith- 
 standing her coverture, hut not hy way of anticipation, ^c, may 
 appoint, and in default of appointment, into her own hands. But it 
 appears from recent decisions, that this form cannot be relied upon 
 as an effectual prohibition of anticipation by the wife. It has been 
 held in two late cases(e)^ by the Vice-Chancellor of England, that 
 under a trust so framed, the restraint against alienation applies only 
 to the power of appointment, and that the interest given to the wife 
 
 (2) 2Rop.Husb. and Wife, 236, 240 ; Brown r. Bamford, 11 Sim. 127; Med- 
 
 Bee Btown v. Bamford, 11 Sim. 131. ley v. Horton, 8 Jurist, 853 ; [14 Sim. 
 
 (a) Stated 9 Ves. 524;and see Mores 422 ; Ross's Trust, 2 Eng. L. &Eq. 148.] 
 
 V. Huish, 5 Ves. 692. (c) Moore v. Moore, Coll. 54. 
 
 (6) Clarke 1). Pistor, stated, 3 Bro. C. (d) Baggett v. Meux, 1 Coll. 138, 
 
 C. 568; Pybusj). Smith, 1 Ves. jun. 189; [affirmed 1 Phill. 627 ; Fears ■!). Brooks, 
 
 3 Bro. C. C. 340; Barkes v. White, 11 12 Geo. 200.] 
 
 Ves. 222; Witts v. Dawkins, 12 Ves. (c) Barrymore v. Ellis, 8 Sim. 1; 
 
 501; Browne v. Like, 14 Ves. 302; Brown ■«. Bamford, 11 Sim. 127. 
 
 ' In Ross's Trust, 2 Eng. L. & Eq. 148, a gift on trust to pay the interest to 
 the separate use of R., and that the same should remain during her life, under the 
 direction of the said trustees, as a provision for her, and the interest of it given 
 toher, on her personal appearance and receipt, at any bankers, was held byV. Ch. 
 Cranworth not to be in restraint of anticipation, and that Mrs. R. could alien her 
 life interest. 
 
 " In Baggett v. Meux, 1 Phill. 627, it was held that a court of equity would 
 give effect to the clause against anticipation, whether the subject of the gift were 
 real or personal estate, and whether in fee or for life only ; and see Gaffee's Trust, 
 14 Jur. 277 ; but see Ins. Co.u. Bay, 4Comst. 11. 
 
 ' These decisions of the Vice-Chancellor of England (Brown v. Bamford; 
 Barrymore v. Ellis), are now overruled ; Brown v. Bamford, 1 Phill. 620, (on 
 appeal) Harnett v. MoDougal,8 Beav. 188 ; Moore 1;. Moore, 1 Coll. 54; Gaffee's 
 Trust, 14 Jur. 277 ; 1 Mac. & Gord. 541. 
 
616 OP TEUSTEES FOR MARRIED 'WOMEN. 
 
 in default of appointment, may be effectually disposed of by her, 
 unless the restriction be also expressly extended to that interest.(e) 
 
 The proviso, usually added in the declaration of trusts of this nature, 
 that the receipts of the wife alone shall be good discharges to the 
 trustees, may, if sufficiently worded, operate to extend the restriction 
 against alienation to the whole of the wife's interest. But in the case 
 of Brown v. Bamford,(/) it was laid down by the same learned judge, 
 that in order to deprive the wife of her power of alienation, this pro- 
 viso should express, " that the receipts of the lady under her own hand, 
 to be given from time to time after the rent or dividends should have 
 actually accrued due, should be, and that no other receipts should he, 
 sufficient discharges to the trustees." In that case the trust was, 
 according to the usual form, to pay the dividends, &c., unto such 
 persons, &c., as the wife by any writing under her hand, when and 
 as the same should become due, but not by way of assignment, charge, 
 or other anticipation thereof, should notwithstanding coverture direct 
 or appoint, and in default of appointment, into her proper hands for 
 her sole and separate use ; for which purpose it was declared, that 
 her receipts should be good and sufficient discharges. ' And his 
 Honor determined, according to the foregoing doctrine, that the 
 restraint against anticipation applied to the power of appointment 
 only, and as there were no negative words in the receipt clause, the 
 wife's power of disposition was not curtailed, and a charge created 
 by her on her separate interest was consequently valid. (^) 
 
 Again, as the converse of the last proposition, it has been decided 
 by the same learned judge, that if the power of appointment be given 
 generally to the wife without any express restriction against aliena- 
 tion, but that restriction is attached in terms only to the interest 
 given her in default of appointment, she will be competent to alien- 
 ate by the exercise of her power.(A) 
 
 It has been also held, that the construction now under discussion, 
 will be adopted equally whether the trust be created by deed or will.(i) 
 
 This construction, which was introduced by the decision in Brown 
 V. Bamford, *has not met with the universal approbation of the 
 L ■^ J profession ; and the decision of the Vice-Chancellor K. Bruce, 
 in Moore v. Moore,(A) cannot easily be reconciled with those of 
 the Vice-Chancellor of England in Barrymore v. Ellis, and Brown v. 
 Bamford. 
 
 In the late case of Harrop v. Heaward,(Z) before Vice-Chancellor 
 Wigram, there was a trust for the separate use of a married woman, 
 
 (e) Barrymore v. Ellis, 8 Sim. 1 ; (Ji) Medley v. Horton, 8 Jur. 853, 14 
 Brown v. Bamford, 11 Sim. 127. Sim. 422. 
 
 (/) 11 Sim. 127, 131. (i) Brown v. Bamford, 11 Sim. 127. 
 
 Ig) Brown v. Bamford, 1 1 Sim. 127. (i) 1 Coll. 54. 
 
 Q) 3 Hare, 624. 
 
OF TRUSTEES FOE MARRIED WOMEN. 617 
 
 with a clause prohibiting anticipation ; the prohibitory clause seems 
 to have applied to the interest, in default of exercising the power, as 
 well as to the power itself. But there were no such negative words 
 in the subsequent receipt clause, as the Vice-Chancellor of England 
 stated in Brown v. Bamford to be requisite. However, his Honor 
 supported the validity of the restraint against alienation upon tlie 
 trust so framed, and held, that the absence of the negative words in 
 the receipt clause would not control or negative the prohibition pre- 
 viously imposed. In this state of the authorities, the decision of a 
 superior tribunal is requisite to reconcile the conflicting decisions of 
 the several branches of the court.' 
 
 It is almost needless to remark, that a married woman, who is 
 restrained from anticipation, cannot effectually charge her separate 
 estate with the payment of hec debts. (»i) 
 
 Where a married woman is not restrained from alienating her 
 separate estate, it has been already stated that she will have the 
 power of absolutely disposing of it. She will also have, the same 
 power to make a partial disposition by charging or incumbering it.(M) 
 And it has been determined that even a mere general personal se- 
 curity — such as a bond, or promissory note, or bill of exchange — 
 executed by a married woman, will operate prima facie as an appoint- 
 ment or charge on her separate estate. For she must have meant 
 such a security to operate in some way, and it could have no opera- 
 tion, unless it charged her separate property.(o)^ 
 
 (ot) Barnet v. M'Dowall, Rolls, 27th (o) Standford v. Marshall, 2 Atk. 69; 
 Feb. 1845, [sub. nom., Harnett v. Mc- Norton v. Turville, 2 P. Wras. 144 ; 
 Dongall, 8 Beav. 188 ; but see the re- Hulme v. Tenant, 1 Bro. C. C. 20 ; Heat- 
 marks in Clarke v. Windham, 12 Alab. ley v. Thomas, 15 Ves. 596; Bulpin v. 
 800.] ' Clarke, 17 Ves. 365; Stuart v. Lord 
 
 (n) Hulme «. Tenant, 1 Bro. C. C. 16, Kirkwall, 3 Mad. 387; Murray v. Bar- 
 
 20; WagstafF v. Smith, 9 Ves. 521; lee, 4 Sim. 82; S. C. 3 M. & K. 209. 
 Power V. Bailey, 1 Ball & B. 49 ; Essex 
 V. Atkins, 14 Ves. 542. 
 
 ' See ante, 423, note. 
 
 " See ante, 421, as to the general rule in the United States, with regard to the 
 power of a feme coverte over her separate estate. In those States where such power 
 exists, charges of debts, being in the nature of an appointment, are upheld. In 
 New York, however (before the construction of the Bev. Statutes referred to), the 
 English cases cited in the text, have not been so closely foUovred. The doctrine 
 there was, that a general personal debt of a married woman was not a charge ; 
 but that there must be some reference to the separate estate, or the debt be con- 
 tracted for the benefit of, or on the credit thereof. N. A. Coal Co. v. Dyott, 7 
 Paige, 14; Gardner «. Gardner, Id. 112; Gumming «.[ Pollock, 1 Sandf. Ch. 17; 
 Curtis V. Engel, 2 Sandf. Ch. 287 ; though see Vanderheyden v. Mallory, 1 Comst. 
 462. In Vanderheyden v. Mallory, p. 453, it was held that a married woman's 
 debt, contracted when sole, did not become a charge on her separate estate by her 
 husband's bankruptcy. So also in Mississippi and Kentucky. Coleman v. Woolley, 
 
618 OF TRUSTEES FOR MARRIED W^OMEN. 
 
 Where the absolute beneficial interest in a trust fund is given to 
 the separate use of a feme, without any restriction as to the mode of 
 possession or enjoyment, she is entitled to require an immediate trans- 
 fer of the legal interest to herself from the trustees. And if the trus- 
 tees drive her to file a bill by their refusal to make the transfer, the 
 decree will be made against them with costs.(p) And it is immaterial 
 that the feme was single when the trust was created, and had mar- 
 ried subsequently, and that the refusal of the trustees was bona fide, 
 and proceeded from their unwillingness to put the fund in the power 
 of the husband. (g) 
 
 In a suit by a married woman against her trustees to obtain a con 
 veyance or transfer of her separate estate, it is not necessary to prove 
 the marriage, (r) 
 
 r*4.os-| *The husband must be joined as a defendant to any suit, 
 instituted by the wife respecting her separate estate.(«) 
 
 The concurrence of the trustees is not necessary to give validity to 
 any disposition by a married woman of her separate estate, unless it 
 be made requisite by the terms of the settlement.(i) 
 
 And the trustees will be compelled to give legal eifect to any such 
 disposition, upon a bill filed for that purpose, although they mdy 
 have given notice to the party taking under it, that they would not 
 act upon it.(M) Nor is it any objection to the transaction, that it 
 is entirely for the benefit of the husband.(a;)^ And a direct gift from 
 
 (j)) Thorby v. Yates, 1 N. C. C. 438. Sherman v. Burnham, 6 Barb. S. C. 453; 
 
 (g) Ibid, sed vide Taylor v. Glanville, Wilson v. Wilson, 6 Ired. Eq. 236.] 
 
 3 Madi: 179. (t) Grigby v. Cox, 1 Ves. 518; Essex 
 
 (r) Thorby v. Yates, 1 N. C. C. 438. v. Atkins, 14 Ves. 552, 7. [Coryell v. 
 
 Is) Thorby v. Yates, 1 N. C. C. 438. Dunton, 7 Barr, 532.] 
 
 [Bradley v. Emerson, 7 Verm. 369 ; (u) Essex v. Atkins, 14 Ves. 542. 
 
 Clarkson v. Be Peyster, 3 Paige, 336 ; (x) Standford v. Marshall, 2 Atk. 69; 
 
 Dewalt V. Covenhoven, 5 Paige, 507; Parkes v. White, 11 Ves. 209; Essex »;. 
 
 Grant'W. Van Covenhoven, 9 Paige, 255; Atkins, 14 Ves. 542. [See Hughes «. 
 
 Stuart V. Kissara, 2 Barb. S. C. 493; Wells, 13 Engl. L. & Eq. 400.] 
 
 10 B. Monr. 320; Dickson v. Miller, 11 Sm. & M. 594. And in North Carolina. 
 Frazier v. Brownlow, 3 Ired. Eq. 237'. But in Alabama, the English cases in te.\t 
 are followed. Bradford v. Greenway, 17 Alab. 685; Collins v. Ladenberg, 19 Id. 
 685. So in Missouri. Coatsu. Robinson, 10 Missouri, 757. In New York, it appears 
 that the feme cannot any longer charge her estate by way of anticipation, but 
 there, and in South Carolina, where the strict doctrine is in general held, the 
 trust estate is liable for debts contracted on its account and for its use. Noyes v. 
 Blakeman, 3 Sandf. S. C. 531 ; Montgomery v. Everleigh, 1 McCord, Ch. 267; 
 Maywood v. Patterson, 1 Hill's Eq. 225. See, in Pennsylvania, Wallace v. Costen, 
 9 Watts, 137. And see note to Hulme v. Tennant, ut supr.; Story's Eq. § HOO. 
 ' Though a court of equity looks with jealousy and suspicion at gifts from wife 
 to husband, yet they will be supported if done freely and voluntarily. Dallam v. 
 Wampole, 1 Pet. Cir. Ct. 1 1 4 : Nedby v. Nedby, 1 1 Engl. L. & Eq. 106 ; Jaques v. 
 Methodist Church, 17 John. R. 548; Whitall v. Clark, 2 Edw. Ch. 149; Crugerti. 
 
OF TI/nSTEES FOR MARRIED 'WOMEN. 619 
 
 the Yrife to the hushand himself will be supported ;(jr) although the 
 court looks with some jealousy on such a transaction, and if there be 
 any improper influence exercised by the husband, it will refuse to 
 give effect to it ;(z) and if necessary an inquiry will be directed as to 
 the circumstances under which the instrument was executed by the 
 wife.(a) 
 
 Where a married woman is resident with her husband, and suffers 
 him without objection to receive the income of her separate estate, 
 or to appropriate any annual payments, such as pin-money, directed 
 to be made to her, it will be intended, that these payments were 
 made to, or appropriated by, the husband with her consent. Conse- 
 quently, even as against the husband, the wife or her representatives will 
 not be entitled to an account for any more than one year's arrears. (6) 
 Indeed, in the case of pin-money it has been decided, that the wife's 
 representatives can have no account of arrears at all against the hus- 
 band, even for a year.(c) And it is immaterial that the wife is non 
 compos mentis, and therefore incapable of assenting or dissenting 
 from the payments in question. (c^) It is clear, therefore, that the 
 trustees, by whom these payments were made or sanctioned, would 
 not be liable to account to the wife or her representatives for any 
 arrears of her income received by the husband, at any rate farther 
 back than the last year ; and there is no instance of the relief even 
 to this extent being granted as against trustees, whatever might be 
 the equity as against the husband, by whom the money was received. 
 However, in every case it would doubtless be advisable for the trus- 
 tees to obtain from the wife an express direction, authorizing the 
 payment of her separate income to her husband. 
 
 Where a wife has allowed her husband to receive the income of 
 her separate estate during his life without objection or interference, 
 
 (j) Freeman v. More, 1 Bro. P. C. Peacock v. Monk, 2 Ves. 190; Brodie 
 
 237 ; Frederick v. Hatwell, 1 Cox, 193; v. Barry, 2 Ves. & B. 36; Thrupp v. 
 
 Parkes v. White, 11 Ves. 209. Harman, 3 M. & K. 513. [See Metho- 
 
 (z) Milnes v. Busk, 2 Ves. jun. 488. dist Ch. v. Jaques, 3 J. C. R. 77 ; Mc- 
 
 (a) Pybus v. Smith, 1 Ves. jun. 189. Glensey's App., 14 S. &R. 64; Moore v. 
 
 [Nedby v. Nedby, 11 Engl. L. & Eq. Ferguson, 2 Munf. 421.] 
 106.] (c) Howard v. Digby, 8 Bligh. N. P. 
 
 (6) Powell It. Hankey, 2 P. Wms. 82 ; 224, 246 ; S. C. 4 Sim. 588 ; 2 CI. & Fin. 
 
 Square v Dean, 4 Bro. C. C. 326 ; Fow- 665. 
 
 ler V. Fowler, 3 P. Wms. 355; Ex parte (d) Howard v. Digby, ubi supra; sed 
 
 Elder, 2 Mad. 286, n.; Smith v. Camel- vide Nettleship v. Nettleship, 10 Sim. 
 
 ford, 2 Ves. jun. 698 ; Aston v. Aston, 1 236. [See, however, the remarks on this 
 
 Ves. 167; Parkes ti. White, 11 Ves. 225; case in Sugden's Law of Prop. 165, &c.] 
 
 Cruger, 5 Barb. S. C. 225; Hoover v. Samaritan Sec, 4 Wh. 445; Meriam v. 
 Harson, 2 Barb. Ch. 232. But the mere concurrence of a wife in her husband's 
 receipt of a legacy is not a gift to him. Rowe v. Rowe, 2 De G. & Sm. 294; 12 
 Jur. 909. 
 
620 OF TRUSTEES FOR MARRIED WOMBIT. 
 
 it will be presumed, that the fund was placed by her at his absolute 
 disposal ; and all past accumulations from that source will belong 
 to him absolutely, and go to his personal representatives at his 
 death. (e)^ 
 
 r*4.9fiT *'^^ *^® right of the husband to receive his wife's separate 
 income rests solely on her implied assent, it follows, that the 
 trustees would not be justified in making any payment to the hus- 
 band, where he lives apart from his wife.(/) Still less where they 
 
 (c)Ld.Beresforclt;.Archb. of Armagh, Ridout, 1 Mac. & G. 519; 2 H.&Tw. 
 13 Law Journ. N. S., Chanc. 235; S. C. 55.] 
 8 Jur. 262; [13 Sim. 643; Caton v. (/) Aston i). Aston, 1 Ves. 267. 
 
 ' It is well settled thatwhere a wife living with her husband permits him to 
 receive the rents and profits of her separate estate, the presumption is that it is 
 with her assent, and by way of gift. McGlensey's App., 14 S. & R. 64; Tower t). 
 Hagner, 3 Wharton, 48 ; Naglee v. IngersoU, 7 Barr, 204 ; Yardley v. Raab, 5 
 Whart. 123; Methodist Ch. v. Jaques, 3 J. C. R. 77. So where the income is 
 laid out in goods, which are placed in a store managed by the husband, McGlen- 
 sey's App., 14 S. & R. 64; or in furniture, which is mixed with his, Shirley ti. 
 Shirley, 9 Paige, 363. But if there be an express understanding that the furni- 
 ture is to be kept separate and held for the wife (Taggard v. Taloott, 2 Edw. Ch. 
 628 ; see Shirley v. Shirley, ut supr.), or the goods or furniture be taken in the 
 name of the wife's trustees (Yardley v. Raub, 5 Wharton, 117), it is otherwise, 
 and such property cannot be levied on by the husband's creditors. Where there 
 has been no gift, actual or constructive, to the husband, it is held at law, in Eng- 
 land, that the income when paid over to the wife, becomes the absolute property 
 of the husband, Tugman v. Hopkins, 4 Man. & Gr. 389; Came v. Brice, 7 M. & 
 W. 183 ; Messenger v. Clarke, 5 Excheq. R. 388 ; Bird v. .Pegrum, 22 L. J., C. P. 
 166; 17 Jur. 577; and where lent' by her, may be recovered by the husband, 
 jure mariti. Bird v. Pegrum ; Messenger v. Clarke, ut supr. But in a court of 
 equity it would unquestionably be different, see Macqueen Husb. & Wife, 289. 
 The accumulations or savings of the separate estate, or purchases with them, be- 
 long to the wife, and are subject to the same rules as the principal. Gore v. Knight, 
 2 Vern. 535 ; Churchill v. Dibbin, 9 Sim. 457, note ; 3 Keny. Cas. 85 ; Moloney i;. 
 Kennedy. 10 Sim. 254 ; Messenger v. Clarke, 5 Exch. 392, 393 ; Bird v. Pegrum, 
 ut supr.; though in Churchill v. Dibbin, ut supr., it was held that she had no 
 power of disposition over real estate purchased with her separate property. The 
 rule is the same in the United States. Merrit v. Lyon, 3 Barb. S. C. 110 ; Hort v. 
 Sorrell, 11 Alab. 386; Kee v. Vosser, 2 Ired. Eq. 553; Rogers v. Fales, 5 Barr, 
 154; Yardley v. Raub, 5 Whart. 123; Towers v. Hagner, 3 Whart. 57; Young «. 
 Jones, 9 Hump. 551. 
 
 Where the separate use is given for life, and the wife dies without disposing 
 of her property, there being no limitation in default of appointment, the husband, 
 if it be personal estate, will be entitled to it absolutely, and the trust falls to the 
 ground. Molony v. Kennedy, 10 Sim. 254 ; Johnston v. Lumb, 15 Id. 308 ; Proud- 
 ley V. Fielden, 2 Myl. & K. 57; Stead v. Clay, 1 Sim. 294; Drury v. Scott, 4 Y 
 & Coll. Ex. 264 ; Bird v. Pegrum, ut supr. ; Stewart v. Stewart, 7 John. Ch. 229 ; 
 McKennan v. Phillips, 6 Whart. 576 ; Brown v. Brown, 6 Humph. 197. The same 
 principle has been applied, in New York, to the separate estate created by the 
 Married Woman's Acts of 1848, 1849. McClosker «. Golden, 1 Bradf. Surr.R.64. 
 
OP TRUSTEES FOR MARRIED WOMEN. 621 
 
 have received any notice from the wife, interdicting such an appli- 
 cation of her funds.(5') 
 
 Deeds of separation between husband and wife, providing a sepa- 
 rate maintenance for her, are, to a certain extent, valid at law.(A) 
 And although the agreement to live separate will not be specifically 
 enforced in equity, as being contrary to the policy of the law,(i)' yet 
 
 (g-) See Ridout i). Lewis, 1 Atk. 269 ; 341. [Affirmed, 1 CI. & Fin. 101; 4 
 
 Thrupp ■!;. Hannan, 3 M. & K. 516 ; Ba- Mann. & Gr. 1104.] 
 
 got V. Bagot, lOLaw Journ.N.S.Chanc. (i) Headi;. Head, 3 Atk.oSO; Wilkes 
 
 116. u. Wilkes, 2 Dick. 791 ; WorralliJ.Wor- 
 
 (/i) Jones V. Waite, 5 Bing. N. C. rail. 3 Mer. 268. 
 
 ' The law on this subject has been considerably modified in England, by the 
 case ofWilson D.Wilson, 1 House of Lords Cases, 538; affirming S.C. 14 Sim. 405, 
 where it was held, that the Court of Chancery, in the exercise of its ordinary 
 jurisdiction, can decree specific performance of articles of separation between 
 husband and wife, so far as they Regard an arrangement of property agreed upon. 
 In this case, the husband, in order to stop proceedings in the ecclesiastical court 
 for nullity of marriage on the ground of his impotency, entered into articles of 
 separation. The wife subsequently applied by bill for execution of a deed car- 
 rying the articles into effect, which was decreed, and the husband restrained by 
 injunction from further proceeding in the ecclesiastical court to compel his wife 
 to continue the suit. It seems, that the wife would also have been restrained, 
 had it been necessary. This case appears to cover the whole ground, and to 
 authorize the interference of equity in all cases, and not merely in the enforce- 
 ment of the separate provision. Accordingly, in Sanders v. Rodvvay, 13 Eng. 
 L. &Eq. 463, where a husband entered into a deed of separation, in which he 
 covenanted, that he would permit his wife to live separate from him, and would 
 not molest her, nor visit her without her consent, an injunction was granted, 
 to restrain him from breaking the covenant; see the terms of the injunction in 
 this case, which are very stringent. And in Green v. Green, 5 Hare, 400, note, a 
 similar injunction was granted. 
 
 In the United States, it appears to be still held, that equity will not decree spe- 
 cific performance of such articles ; though, when executed, it will enforce the 
 collateral engagements with the trustees. Charaplin v. Champlin, 1 Hoff. Ch. 
 55; Mansfield v. Mansfield, Wright, Ohio, 284; Button v. Duey, 3 Barr, 100; 
 Simpson v. Simpson, 4 Dana, 140; Rogers v. Rogers, 4 Paige, 518; Carter v. 
 Carter, 14 Sm. & M. 59; M'Kennan v. Phillips, 6 Wharton, 571 ; McCrocklin v. 
 McCrocklin, 2 B. Monr. 370; Read v. Beazley, 1 Blaokf. 77; 2 Kent's Comm. 
 176 ; see Mercein v. People, 25 Wend. 77. Such a deed is no bar to a divorce ; 
 Anderson v. Anderson, 1 Edw. Ch. 380; nor to a claim for alimony. Miller v. 
 Miller, Saxton, 386. 
 
 It has been generally ruled, that the intervention of a trustee was necessary to 
 validate deeds of separation. Settle v. Wilson, 14 Ohio, 257 ; Carson v. Murray, 
 3 Paige, 483 ; Tonney v. Sinclair, 3 How. Miss. 324 ; Watkins v. Watkins, 7 
 Yerg. 283; Simpson v. Simpson, 4 Dana, 140; Carter v. Carter, 14 Sm. & M. 59 ; 
 see 2 Kent's Coram. 176. But in Hutton t). Duey, 2 Barr, 100, an agreement for 
 immediate separation, without the intervention of a trustee, having been acted 
 on, was supported; so (apparently) in Pickett v. Johns, 1 Dev. Eq. 123. 
 
 As to the subsequent discharge of the articles, see Heyer v. Burger, 1 HofF. Ch. 
 1; RatoliiT v. Huntley, 4 Ired. R. 545; Huntley v. Huntley, 6 Ired. Eq. 514. 
 
622 OP TRUSTEES FOR MARRIED WOMEN. 
 
 it has been settled, not without some seeming anomaly of principle, 
 that the court will decree a specific execution of the separate pro- 
 vision made for the wife in the event of separation.(i) 
 
 It seems to have been considered by Lord Eldon in the case of 
 St. John V. St. John,(Z) that the intervention of a trustee for the 
 wife was essential, in order to give validity to any provisions for her 
 separate maintenance ; and this appears, also, to have been the 
 opinion of Lord Loughborough in the previous case of Legard v. 
 Johnson.(ra) But decisions are not wanting, in which the court has 
 enforced the provisions of a deed of separation, which was made between 
 the husband and wife, only without the interposition of a trustee.(n) 
 And in the recent case of Frampton v. Frampton,(o) the Master of 
 the Rolls (Lord Langdale), appears to have been disposed to recog- 
 nise the validity of a trust for the wife in such a deed without any 
 trustee, (p) 
 
 However, it is unquestionably more convenient and proper, in cases 
 of separation, that trustees should be appointed, by whom the pro- 
 visions for the wife's separate maintenance may be enforced. And 
 where, as is usually the case, the trustees, in consideration of the 
 separate provision covenant to indemnify the husband against the 
 wife's debts, or her other claims on his property, that will create a 
 valuable consideration, and will support the transaction even against 
 the husband's creditors.(5') 
 
 But the absence of such a covenant on the part of the trustees, 
 will not invalidate the deed, which, notwithstanding such an omis- 
 sion, will be binding on the husband himself ;(r) although, for want 
 of a proper consideration, it would not hold good against his cre- 
 ditors, (s) 
 
 It is to be observed, however, that if the provision for the wife 
 
 (k) Guth V. Guth, 3 Bro. C. C. 614; Barr,100; Read«.Beazley, lBIackf.97; 
 
 Lord St. John v. Lady St. John, 1 1 Yes. Pickett v. Johns, 1 Dev. Eq. 123.] 
 
 526; Worrall v. Jacob, 3 Mer. 256; Q) 11 Ves. 526. 
 
 Westmeath v. Westmeath, Jac. 126; (m) 3 Ves. 359; and see Worrall ti. 
 
 Westmeath v. Salisbury, 5 Bligh, 375; Jacob, 3 Mer. 268. 
 
 Hoare v. Hoare, 2 Ridg. P. C. 268 ; Wil- (n) More v. Ellis, Bunb. 205; Guth 
 
 son V. Wilson, V. C. E. 12 Feb. 1845. v. Guth, 3 Bro.C. C. 614. 
 
 [14Sim. 405, aff. Dom. Proo.jSeeSugd. (o) 4 Beav. 294. 
 
 Law of Prop. 179, '80.] Elworthy v. Ip) Sea 2 Rop. Husb. and Wife, 292. 
 
 Bird, 2 S.& St. 372; Fraraptont). Framp- (g) Stephens v. Olive, 2 Bro. C. C. 
 
 ton, 4 Beav. 287 ; see Jones v. Waits, 90 ; Compton v. CoUinson, Ibid. 38 ; 
 
 5 N. C. 341 [affirmed, 1 CI. &Fin. 101; W^orrall v. Jacob, 3 Mer. 256; Elwor- 
 
 4 Mann. & Gr. 1104]; Cooke v. Wig- thy v. Bird, 2 S. & St. 381. 
 
 gins, 10 Ves. 191; Seeling v. Crawley, (r) Fitzert). Fitzer, 2 Atk. 5 11; West- 
 
 2 Vern. 386 ; Angier v. Angier, Gilb. Eq. meath v. Westmeath, Jac. 126 ; Framp- 
 
 Rep. 142; Free. Ch. 496; Fletcher v. ton v. Frampton, 4 Beav. 287. 
 
 Fletcher, 2 Cox, 109. [Battle v. Wil- v. Beazley, 1 Blackf. 98.] 
 
 son, 14 Ohio, 257; Hutton v. Duey, 3, (s) Ibid. 
 
OF TEUSTEES FOR MAKKIBD WOMEN. 623 
 
 still rested in agreement on the part of the husband, and there were 
 no covenant by *the trustees, or other valuable consideration, r>ic4oi7-i 
 to support the agreement, it would be a mere WMc^MOT^aciMm, 
 which could not be enforced in equity.(<) But if the trust for the 
 wife be actually created, it is by no means essential that the instru- 
 ment should be formally executed as a deed.(M) 
 
 It was at one time considered, that provisions for the separate 
 maintenance of a married woman in case of any future separation, 
 might be enforced.(a;) This doctrine, however, is now clearly over- 
 ruled, and it is settled, that the agreement must be for an immediate 
 separation. (y) 
 
 A covenant by the husband for the payment of an annuity to the 
 wife in case of any separation between them, is within this principle, 
 and cannot be enforced.(3)' 
 
 In these cases, if a bond or covenant be entered into by the hus- 
 band, with a trustee for the wife to secure her separate provision, the 
 trustee is, of course, the party to sue on the instrument at law for 
 the wife's benefit. But, if he refuse to act without an indemnity, a 
 bill may be filed by the wife by her next friend against the husband 
 and the trustee for the payment of the amount secured. And in 
 such a case, though there is a decree for the plaintiff, the trustee will 
 be entitled to his costs, to be paid by the husband.(a) 
 
 Where property is vested by a separation deed in trustees for the 
 benefit of the wife, she will not have the same equitable power of 
 disposing of this interest, as in the case of property secured to her 
 separate use, but she will take it with all the disabilities of coverture : 
 consequently, any assignment, or charge, or other disposition execu- 
 ted by her, will be merely void, and must be wholly disregarded by 
 the trustees.(6) 
 
 It is the duty of trustees for a feme coverte, to protect her inte- 
 rests against her husband ; and if, in neglect of that duty, they 
 
 (0 Elworthy v. Bird, 2 S. & St. 372. (y) Tidey v. Durant, 7 Price, 577 ; 
 
 [See, however, Wilson v. Wilson, 14 Hobbs j). Hull, 1 Cox, 445; Westmeath 
 
 Sim. 405, afF. 1 H. Lds. Cases, 538 ; «.Westmeath, Jao.142. [Aff.Dora.Proc., 
 
 Sugd. Law of Pr. 179.] Sugd. L. of Pr. 178.] 
 
 (m) Elworthy v. Bird, ubi supra ; An- (z) Cocksedge v. Cocksedge, 8 Jur. 
 
 gier V. Angler, Prec. Chan. 496; Head 659, [5 Hare, 397.] 
 
 V. Head, 3 Atk. 54. (a) Cooke v. Wiggins, 10 Ves. 191; 
 
 (z) Rodney v. Chambers, 2 East, 297; see Seagrave v. Seagrave, 13 Ves. 439. 
 
 Hoare v. Hoare, 2 Ridg. P. C. 268; (6) Hyde r. Price, 3 Ves. 437. 
 Chambers v. Caulfield, 6 East, 244. 
 
 ' But in Waring v. Waring, 10 B. Monr. 331, it was held, that a deed poll in 
 these words, " If my wife M. and myself should ever part, or be separated, or 
 divorced, I will account to her and her heirs for all such advances as may be 
 made to her by her father, F. H.; and in the mean time they are to be kept to her 
 separate use and control," was good. 
 
624 OP TRUSTEES OF FKBEHOLDS. 
 
 assist the husband in excluding her from the receipt of her property, 
 and refuse to pay and dispose of her income according to her direc- 
 tions, they -will be decreed to pay the costs of a suit, instituted by 
 her to obtain redress, (c) 
 
 Where property, belonging to the husband, or of which he is the 
 purchase?; by settlement, is vested in trustees, in trust to pay the 
 income to the husband and wife jointly, during their joint lives, the 
 husband alone will be entitled to receive the whole income.((£) And 
 he will be equally so entitled, although he has obtained a separation 
 and divorce, a mensa et thoro, from his wife for adultery, and although 
 the wife has no other means of subsistence. (e) But it would be 
 otherwise where the separation is occasioned by the misconduct of 
 the husband. (/) 
 
 But if the property of the wife were subject to a similar trust, the 
 r*49Sn husband *would not be entitled to the whole, although the 
 wife were guilty of adultery, and separated from him.(^) 
 
 And where the wife is entitled to a provision by virtue of a con- 
 tract, whether contained in marriage articles, or in a covenant or 
 deed of settlement, it is clearly settled, that the trust may be en- 
 forced in her favor, notwithstanding her adultery, and although she 
 may be living apart from her husband. (A) And a suit by the trus- 
 tees against the husband for that purpose may be Bustained.({) 
 
 IX. — OF TRUSTEES OF FREEHOLDS. 
 
 The powers and duties of trustees of freehold estates have neces- 
 sarily been in a great measure discussed by anticipation in some of 
 the previous chapters of this work ; but it will be convenient here to 
 throw together a few of the most obvious remarks on this subject. 
 
 As the owner of the legal estate alone can be recognised in a 
 court of law, it is one of the primary duties of the trustee of free- 
 hold estates, to maintain and defend all such actions at law, as are 
 requisite for the assertion or protection of the title.(^) 
 
 There has been already occasion to consider the right of trustees 
 to the custody of the title-deeds ;(Z) and we have seen, that the trus- 
 tees, having the legal estate, are entitled in general to the custody 
 of the deed of settled property, for the benefit of all the parties benefi- 
 ce) Bagot u Bagot, lO Law Joura. N. 270; Blount v. Winter, lb. 277, n.; 
 S., Chanc. 116. Moore v. Moore, 1 Atk. 276; Seagrave 
 
 (rf) Duncan'u. Campbell, 12 Sim. 616. v. Seagreave, 13 Ves. 439. 
 
 (e) Duncan v. Campbell, ubi supra. (i) Blonnt v. Winter, 3 P. Wma. 
 
 (/) See Duncan v. Campbell, 12 Sim. 277, n. ; Moore v. Moore, 1 Atk. 276. 
 636. _ (/t) 1 Cruise. Dig. 448, 4th ed. ; ante, 
 
 (g-) Ball V. Montgomery, 4 Bro. C. C. Pt. II. Ch. III., page 272, and note. 
 339; S. C. 1 Ves. jun. 191. (/) Ante, Pt. II. Ch. III., and PI. VI. 
 
 (Ji) Sidney v. Sidney, 3 P. Wras. of this Section, page 272, 284, and note. 
 
OF TRUSTEES OF FREEHOLDS. 625 
 
 cially interested. (to) And that it will even be a breach of their 
 duty to suffer the equitable tenant for life to obtain possession of 
 the deeds.(n) Although the court will not suffer this right to be 
 abused by the trustees for the mere purpose'of annoying or control- 
 ling the tenant for life, but will order the deeds into court, where 
 such a spirit is shown.(o) A mere dry trustee of course cannot rfe- 
 tain the title-deeds against the beneficial owner. 
 
 The rights of the trustees to the possession and management of 
 the settled estate, have also been discussed, and we have seen, that 
 that question will be governed materially by the nature of the pro- 
 perty, and of the powers and duties which the trustees are called 
 upon to exercise.(p) 
 
 Where the trustees are directed to pay annuities or make any 
 other periodical payments out of the estate, it is essential to the due 
 discharge of the trust, that they should have the power of rendering 
 the property productive by leasing it ; and in the absence of any 
 express power, there can be little question but that the trustees with 
 such duties to perform would take an implied power to grant leases at 
 rack rent under the ordinary terms and provisions, regard being had 
 to the nature of the property and the custom of the country. Thus 
 in a case, where real estate was devised to trustees to pay certain 
 life annuities, and subject thereto in trust for certain *indi- |-^ .nn-, 
 viduals for life with remainder over, it was held by Sir J. L -^ 
 Leach, M. R., that the trustees were able to grant valid leases for 
 ten years, (g) However, there can be no question, but that the trus- 
 tees would not be justified in leasing for any term of unusual length, 
 as on building leases, or at any other than rack rent, unless they 
 are expressly authorized to do so by the trust instrument. Where 
 no such payments are to be made by the trustees, their power ,to 
 grant leases is at least very questionable, and could rarely be exer- 
 cised with any safety. 
 
 If the annuities or other payments, which it is the object of the trust 
 to secure, are not duly paid by the person, who is for the time being 
 beneficially entitled subject to those payments, it will be the duty of 
 the trustees to enter into possession of the profits of the estate, by 
 giving notice to the tenants to pay their rents to them.(r) And 
 where the general duties imposed on the trustees require them to be 
 in the actual possession and management of the property, as where 
 
 (m) Doe V. Passingham, 6 B. & Cr. (p) Ante, Pt. II. Ch. III. ; and PI. 
 ■ 305; Barclay v. Collett, 4 N. C. 650; VI. of this section. 
 Dunoombe v. Mayer, 8 Ves. 320. (5) Naylor v. Arnitt, 1 R. & M. 501. 
 
 (n) Evan v. Bicknell, 6 Ves. 174; (r) Jenkins v. Milford, 1 J. & W. 
 see Meaux v. Bell, 1 Hare, 82, 98. 629. 
 
 (0) See Denton v. Denton, 8 Jur. 388. 
 [7 Beav. 388.] 
 
 40 
 
626 OF TRUSTEES OF FREEHOLDS. 
 
 they are required to exercise a general supervision, and to insure 
 &c., they will be entitled to retain the possession and management 
 to the exclusion of the equitable tenant for life.(«) But if there are 
 no such duties, and the annuities, &c., are regularly paid by the 
 tenant for life, the trustees will not be allowed to disturb him in the 
 receipt of the rents and the management of the estate ; especially 
 where they have acquiesced in his having the management and pos- 
 session for several years.(i) 
 
 Trustees, wTio are invested with general powers of management, 
 will be justified in laying out money in the repairs and improvement 
 of the property, such as draining, building farm-houses, &c., manur- 
 ing, and other similar works. (m) But without any general authority, 
 or a special power, they would run the risk of having the payments 
 disallowed, if they ventured to make such an application of trust 
 funds.(a!)^ 
 
 And the position and capacity of the cestui que trusts will con- 
 stitute another ingredient for consideration, in determining the nature 
 and extent of the authority of the trustees. For instance, where 
 the estate is held in trust for a feme coverte or for infants, who are 
 incapable of acting for themselves, the power of management and 
 
 (s) Tidd V. Lister, 5 Mad. 433. 337; Bowes v. Earl of Strathmoie, 8 
 
 (() Denton v. Denton, Rolls. 8 Jurist, Jurist, 92. 
 388. [7 Beav. 388.] (a;) Bowes u Earl of Strathmore, ubi 
 
 (u) Fountaine v. Pellet, 1 Ves. jun. supra. [Wykoff d. Wykoff, 3 W. 8e S. 
 
 481 ; Green v. Winter, 1 J. C. R. 26.] 
 
 ' Trustees are authorized to insure, and bound to pay taxes. Burr v. McEwen, 
 1 Baldw. C. C. 154. Where the trust was to sell the land and pay offincumbrances, 
 &c., and to restore the residue, it was held that the trustee could not be allowed for 
 improvements of the estate, though made bonafide, as in building houses, and mills, 
 clearing lands, making roads, &c. ; but that he was entitled only for necessary 
 expenditures as repairs and the like. The purchase and sale of stock, hay, 
 grain, and farming utensils will not be taken in account of such trust estate. 
 Green v. Winter, 1 Johns. Ch. 26. In Cogswell v. Cogswell, 2 Edw. Ch. 231, 
 where executors held the residuary real and personal property in trust for a 
 contingent remainderman in fee, with remainder over on failure of the contin- 
 gency, and two parcels of the land in trust for A. for life, it was held that they 
 could not in the absence of any express power apply the residuary personal 
 estate to the improvement of the one parcel, which remained in the same con- 
 dition as when devised. But the other parcel in consequence of a municipal 
 improvement had become capable of being leased for a permanent term at a 
 high rent, if warehouses were erected thereon, and the court directed or permit- 
 ted the executors to apply the residuary personal property to the erection of 
 warehouses on the land, charging the tenant for life with 6 percent, interest on 
 the investment, a reasonable allowance for the depreciation of the buildings, and 
 taxes and insurances, by way of deduction from the rents. See also L'Amoureux 
 V. Van Rensselaer, 1 Barb. Ch. 34; Ameri). Downing, 1 Bradf Surr. R.321 ; Wykoff 
 V. Wykoff, 3 W. & S. 481; and as to improvements by guardians, ante 395,note. 
 
OF TRUSTEES OF COPYHOLDS. 627 
 
 control will necessarily devolve on the trustees for their protection 
 and benefit. (2^) 
 
 Where it is incumbent on the trustees to receive the rents either 
 for the purpose of accumulation, or for any other purpose directed 
 by the trust, they will be personally liable, if they suffer the tenants 
 to fall into arrear, and a loss be thus occasioned to the estate.(3)^ 
 
 Where the tenant of an estate became insolvent, and the rent was 
 considerably in arrear, a trustee has been held justified in releasing 
 the debt, and even in giving a bonus in addition to get the tenant 
 out, as it was for the benefit of the estate.(a) 
 
 X. — OF TRUSTEES OF COPYHOLDS.^ 
 
 Prior to the passing of the late act for amendment of the Law of 
 Forfeiture *and Escheat (4 & 5 Will. IV. c. 23), there ap- r^^. oa-. 
 pears to have been some risk in vesting copyhold property L -■ 
 in a single trustee, or a small number of trustees. The lord of the 
 manor was not bound by any trust, which he had not consented to, 
 or recognised by entry on the rolls of the manor ;(6) and stewards 
 of manors would very rarely accept any surrender, in which the 
 trusts were noticed. The consequence was, that in case of the death 
 of the sole or last surviving trustee without heirs, or of his attainder 
 or conviction for felony, the estate would have escheated to the lord 
 discharged of the trust.(c) However, that risk is obviated by the act 
 above mentioned, which expressly applies to copyhold as well as 
 freehold property, and does away with the escheat or forfeiture in 
 these cases. And it is also retrospective in its operation. 
 
 (1/) Tidd tJ. Leister, 5 Mad. 433. Leeds, 2 M. & K. 342; Weaver ?;. 
 
 (3) Tebbs V. Carpenter, 1 Mad. 290. Maule, 2 R. & M. 97 ; ante, p. 50. 
 
 (a) Blue V. Marshall, 3 P. Wms. (c) Peachy v. Duke of Somerset, 1 
 
 381. Stra. 454 ; Burgess v. Wheat, ubi supra ; 
 
 (6) Chudleigh's case, 1 Co. 122, a; 1 Scriven, Cop. 483, 3d ed.; Att.-Gen. 
 
 Burgess v. Wheate, 1 Sir W. Bl. 167; uDuke of Leeds, 2 M. & K. 342; ante, 
 
 S. C. 1 Ed. 177 ; Att.-Gen. v. Duke of p. 50. 
 
 1 A trustee letting a farm originally at a proper rent will not be held personally 
 liable for the difference between that rent, and the rent which at a subsequent 
 period of the tenancy might have been obtained, pierely because he neglected 
 to give notice to quit, a few months after there appeared to be a probability that 
 the price of agricultural produce would enable him with propriety as between 
 landlord and tenant to obtain a higher rent. Ferraby v. Hobson, 2 Phill. Ch. 255. 
 The neglect must be very gross, and approximating to fraud to constitute such 
 omission a breach of trust. Ibid. A trustee is not chargeable for not renting 
 real estate, which was unproductive and unenclosed when it came into his hands, 
 and when the object of the trust was sale and not renting. Burr v. McEwen, 1 
 Bald. C. C. 154 ; see Griffin v. Macaulay, 7 Gratt. 476. 
 
 '■^ See the Act for the gradual Emancipation of Copyholds, of 1853. 
 
628 OF TRUSTEES OF COPYHOLDS. 
 
 On the other hand, in case of the death without heirs, or the at- 
 tainder of the cestui que trust, there will be no equitable escheat in 
 favor of the lord, but the trustees will hold for their own benefit dis- 
 charged from the trust.(d) And although in such a case a court of 
 equity will not interpose against the lord in favor of the heir of the 
 trustee, who claims to be admitted,(e) yet a court of law will compel 
 the lord to admit the heir, in order that he may try his title.(/) ' 
 However, where the trusts have been actually consented to ly the lord, 
 and are entered on the rolls of the manor, it might possibly be a 
 question, whether the lord might not have an equity to treat the 
 trustee as holding for his benefit upon the failure of the cestui que 
 trusts.{g) 
 
 The trustees in whom the legal estate is vested, are regarded by 
 the lord as the real tenants for the performance of the feudal services. 
 It follows, therefore, that the customary fines and heriots will. become 
 due on the alienation or death of trustees, and not of the cestui que 
 trusts.ih) In case of there being several co-trustees, who are joint 
 tenants, no heriot is due until the death of the last survivor.(i) 
 
 Where there is a large number of trustees, as frequently happens 
 in charity cases, the following rule has been laid down for estimating 
 the amount of the fine on admission, viz., to take for the second life 
 half the sum taken for the first, and for the third, half of what was 
 taken for the second, and so on.(^) 
 
 The amount of the fines and other expenses necessary for the pre- 
 servation and continuance of the estate, must unquestionably be 
 raised out of the corpus of the trust property. And this may be ef- 
 fected by sale or mortgage, if necessary, unless it appears from the 
 trust instrument that such a mode of raising the requisite funds was 
 not intended. This subject, and also the relative liabilities of the 
 cestui que trusts for life and in remainder, *will be con- 
 L J sidered at length in discussing the analogous case of the re- 
 newal of leasehold interests. (^) 
 
 And so where the copyholds are for lives, the duty of the trustees 
 to preserve the estate by continued renewals on the expiration of any 
 of the lives, is precisely similar to that of trustees of leaseholds for 
 lives, which will also be presently considered.(m) 
 
 Again, where the copyholder for the time being has the preference 
 
 (d) Ante, p. 269. (i) Cora. Dig. Copyhold, K. 24; \ 
 
 (e) Williams D. Lord Lonsdale, 3 Ves. Scriven, Cop. 447, 3d ed. 
 
 756. (i) Wilson v. Hoare, 2 B. & Ad. 350; 
 
 C/) Rex V. Coggan, 6 East, 431. 1 Scriven, Cop. 389, 3d ed. 
 
 \g) See 1 Scriven, Cop. 485, 3d. ed. {I) Vide post [Trustees of Lease- 
 
 Ih) Trin. CoU. u. Brown, 1 Vern. 441 ; holds]. And Playters v. Abbott, 2 M. & 
 
 Carr v. Ellison, 3 Atk. 73, 77; Earl of K. 97. 
 
 Bath V. Abney, 1 Dick. 260; 1 Scriv. (;n) Ibid. 
 
 Cop. 416, 3d ed.; ante, p. 269. 
 
OF TRUSTEES OF COPYHOLDS. 629 
 
 of renewing a copyhold held on lives, and a trustee of the copyhold 
 puts in a new life for his own benefit, he will be held to take the 
 renewed estate upon the original trusts, in the same manner as a 
 trustee of leaseholds, who effects a renewal under similar circum- 
 stances. (n) 
 
 The court rolls are the title-deeds of copyholds, and a purchaser is 
 only bound to look at them in his examination of the title. (o) Con- 
 sequently, where the admission of trustees is absolute, without refe- 
 rence to any trust, it would be very miich in their power to dispose 
 of the property to a purchaser for valuable consideration, without the 
 latter's receiving any notice of the trust. And in that case the title 
 of the purchaser would prevail against that of the cestui que trusts. 
 And this risk would be proportionably increased where there is only 
 a single trustee. To obviate this danger, the admission should 
 always notice, that the trustee is admitted on the trusts of the deed 
 (stating the date and parties), or of the will, by which the trusts are 
 created. Such a notice of the trust instrument will be quite suf- 
 ficient, without stating the trusts at length ; and a purchaser taking 
 from the trustee, will in that case be affected with constructive notice 
 of all the trusts contained in the instrument referred to.(p) Such a 
 notice is also binding on any claim by the lord by escheat, (g') The 
 stewards of manors very generally object to entering the particular 
 trusts of an instrument on the rolls, upon the somewhat absurd 
 ground that the lord would in that case be involved in any breach of 
 trust committed by the trustee. But no such objection could possi- 
 bly be made to admitting the notice of the trust instrument in the 
 manner suggested above. 
 
 Where the trustees of copyhold property are not put into posses- 
 sion of the legal estate by admission, they should cause the instru- 
 ment creating the trusts to be entered or noticed on the rolls of the 
 manor, in order to protect their cestui que trusts from any improper 
 disposition which the owner of the legal estate might otherwise have 
 it in his power to make. Any loss occasioned by the neglect of this 
 precaution, would in all probability be visited personally on the 
 trustees. 
 
 Trustees ordinarily have no authority to effect an enfranchisement 
 of copyholds, unless an express power for that purpose be conferred 
 upon them by the trust instrument. For such an act would operate 
 to change the nature of the estate, and would interfere with the rela- 
 tive interests of the persons beneficially entitled. However, by the 
 recent act for facilitating the enfranchisement of copyholds,(r) in 
 
 (n) Ibid. (5) Weaver v. Made, 2 R. & M. 97. 
 
 (0) Pearce v. Newlyn, 3 Mad. 188. (r) 4 & 5 Vict. c. 35. 
 Ip) Pearce v. Newlyn, 3 Mad. 186. 
 
630 OP TRUSTEES OF LEASEHOLD'S. 
 
 case of the disability of any person beneficially interested in a copy- 
 hold, the trustees are empowered to proceed in enfranchising the 
 property instead of the cestui que trust. 
 
 [*432] *XI. — OF TRUSTEES OF LEASEHOLDS. 
 
 In discussing the duties of trustees for tenant for life, we have seen 
 that where part of the settled property consists of leaseholds or other 
 wasting securities, it is in general the duty of trustees to dispose of 
 those perishable interests, and invest the proceeds in the three per- 
 cents. for the benefit of all the cestui que trusts equally.(s) 
 
 However, it has been also stated, that the rule does not apply, 
 where there is a specific gift of the leasehold or other perishable 
 property ; for then the tenant for life would be entitled to enjoy the 
 income in specie, as long as it lasts ;[t) the same rule applies to settle- 
 ments hy deed of similar property. 
 
 A trustee, in whom a leasehold interest becomes vested by devise 
 or assignment, is liable as assignee to the performance of the cove- 
 nants during the continuance of his interest. But unless he is also 
 the executor of the lessee, or has bound himself by a personal cove- 
 nant to the observance of the covenants in the lease, his liability will 
 continue only as long as he retains possession ; and upon the assign- 
 ment of his interest, he will be exonerated from all responsibility,(M) 
 excepting such as may have been already incurred by a breach of 
 covenant committed during the continuance of his possession. (a;) And 
 in this respect a trustee differs materially from the executor of a les- 
 see, who in respect of the privity of estate will continue liable to the 
 lessor on the covenants in the lease notwithstanding his having 
 assigned the lease.(2/)(l) 
 
 A person, therefore, who is both executor and trustee, or a trustee 
 only, who has bound himself personally to the performance of the 
 covenants in a lease, will be entitled to an indemnity from the cestui 
 que trusts of the rent and covenants, before he can be required to 
 
 (s) Ante, PI. VI. of this section. 2 Ventr. 228 ; Taylor v. Shum, 1 Bos, 
 
 [page 386, and notes.] & Pull. 21 ; Rowley v. Adams, 4 M. 
 
 (t) Ibid. & Cr. 534 ; 1 Fonbl. Eq. 361, 2. 
 
 (w) Onslow V. Corrie, 2 Mad. 330, {x) Treveleu. Coke, 1 Vern. 165. 
 
 340 ; see Valiiant v. Diomede, 2 Afk. {y) Brett v. Cumberland, Cro. Jac. 
 
 546 ; Pitcher v. Toovey, 1 Salk. 81, and 521, 522 ; 2 Wms. Exors. 1074, et. seq. 
 
 (1) Where the leasehold interest is the source of loss to the trust estate, the 
 rent being greater than the value, it is the duty of the trustees to get rid of the 
 liability to pay the rent by assigning the lease, and they have been held per- 
 sonally responsible to the cestui que trusts for omitting to do so. Rowley «. 
 Adams, 4 M. & Cr. 534. 
 
OP TRUSTEES OF LEASEHOLDS. 631 
 
 assign over the legal estate.(e) And it is immaterial that the trus- 
 tees may never have been in actual possession of the estate, (a) 
 
 It is still somewhat unsettled, how far it is incumbent on trustees 
 of beneficial leases to renew them at the usual periods, where no posi- 
 tive trust to renew is contained in the trust instrument.(6)(l) 
 
 However, where a leasehold estate is settled in trust for life with 
 remainders over, it will, in general, be intended, that the settlor 
 must have regarded this as a continuing interest, which was to be 
 preserved for the benefit *of all the objects of the trust includ- p^^qq-i 
 ing the remaindermen ; and though there may be no express ■- -^ 
 direction to renew, it will be the duty of the trustees to preserve the 
 estate for the benefit of the parties in remainder by renewing at the 
 usual periods.(c) 
 
 On the same principle where the trustees are invested with a dis- 
 cretionary power of renewing, they will not in the exercise of that 
 discretion be permitted to destroy the estate confided to them by 
 neglecting to renew. Thus in Lord Milsington v. Mulgrave,(ci) it 
 was provided by a settlement of leasehold estates held of the dean 
 and canons of Windsor, that it should be lawful for the trustees from 
 time to time, as occasion should require^, and as they should thinh 
 ^proper," during the continuance of the trusts, to apply for renewal, 
 and to do their endeavors to renew the leases. Part of the trust 
 estate consisted of a renewable leasehold for an original term of 
 twenty-one years. The' trustees neglected to renew this lease at the 
 usual period for renewal, and there were only six years of the term 
 to run. The bill was filed by the parties entitled in remainder after 
 an estate for life, praying that the trustees might be directed to 
 renew, and to pay the fines. A general demurrer to this bill was 
 overruled by the Vice-Chancellor (Sir J. Leach). And upon the 
 hearing on the merits, his Honor declared, that the tenant for life 
 and the trustees must procure an immediate renewal to make up such 
 a term as would have been then subsisting, if the renewal had been 
 regularly made. " It could not be intended," said his Honor, " that 
 
 (2) Simmons v. BoUand, 3 Mer. Ves. 428; White?;. White, 4 Ves. 33; 
 
 547 ; see Marsh v. Wells, 2 S. & St. 90. Milsington v. Mulgrave, 3 Mad. 491 ; 
 
 (a) Cochrane v. Robinson, 11 Sim. 5 Mad. 471; Hulkes v. Barrow, Taml. 
 
 378. 264; Lock v. Lock, 2 Vera. 666; Lord 
 
 (6) See O'Ferrall v. O'Ferrall, Eep. Montfort i). Lord Cadogan, 17 Ves. 448; 
 
 temp. Plunk. 79; Lawrence v. Maggs, 19 Ves. 638. 
 
 1 Ed. 353. {d) Milsington v. Mulgrave, 3 Mad. 
 
 (c) Verney v. Verney, Ambl. 88, 1 491 ; S. C. 5 Mad. 471. 
 
 (1) Where an executory trust is created by marriage articles for the settletnetit 
 of renewable leaseholds in strict settlement, the court in executing the articles 
 will cause directions for renewal to be inserted. Graham v. Lord Londonderry, 
 3 Bro. C. C. 246, cited ; Pickering v. Vowels, 1 Bro. C. C. 197. 
 
632 OF TRUSTEES OF LEASEHOLDS. 
 
 the trustees should have a discretion, whether they would or would 
 not renew. They were appointed for the purpose of protecting 
 future interests, and could not abandon them. The expression ' it 
 should be lawful for them,' meant only that it should be lawful as 
 against the party in possession, and out of his rents and profits to 
 pay the expenses of the renewal. "(e)' 
 
 A fortiori the duty of renewal at the regular periods will be bind- 
 ing on trustees, where an express trust is created for that purpose.(/) 
 
 But the trustees will not be liable for their neglect of an express 
 trust to renew, where the trust cannot be carried into effect owing 
 to its illegality : — as for instance, where certain rents of other pro- 
 perty were directed to be accumulated by the trustees until the lease- 
 holds to be renewed were nearly expired, and the trust was thus 
 extended beyond the period allowed by the rules of law against per- 
 petuity — it was held that the trustees could not renew in the manner 
 directed by the trust, and therefore that they were not responsible 
 for their neglect to make the renewal.(^) 
 
 In the absence of any express trust to renew, this duty may be 
 implied from any expressions used by the settlor, or from the general 
 scope of the trust instrument. For instance where a testator devised 
 a college lease to his wife for life with remainder to her son, and 
 directed her to pay an annuity to the son during her life, it was con- 
 sidered that the testator *necessarily contemplated the con- 
 L J tinuance of the lease during the wife's life, and that she was 
 therefore bound to renew.(^/ 
 
 (e) 5 Mad. 472. 238; Bennett v. CoUey, 5 Sim. 181 ; 2 
 
 (/) Montfort v. Cadogan, 17 Ves. M. & K. 225. 
 
 485 ; 19 Ves. 635, and 2 Mer. 3 ; Cole- (g-) Curtis v. Lukin, 5 Beav. 147. 
 
 grave v. Manby, 6 Mad. 72 ; 2 Russ, {h) Lock v. Lock, 2 Vern. 666. 
 
 ' So in Mortimer v. Watts, 9 Eng.'L. & Eq. 126, where leasehold premises, held 
 for lives, were bequeathed to trustees on trust, out of the rents and profits to pay 
 and perform the rent and covenants; and if they thought it advantageous, that they 
 should endeavor to effect renewals of the subsisting leases, or any of them, as 
 they should think proper; and if they in their discretion should think ft or expedient, 
 but not necessarily or peremptorily, effect and keep on foot insurances on the 
 lives of the cestuisque vie, or any of them, and should effect such insurances in 
 such sums as in the opinion of the trustees should be sufficient to enable them 
 ■whenever a life dropped to effect a renewal, and should set off the rents and 
 profits, or by mortgage thereof, or of any part thereof, raise money to effect the 
 renewal of the leases so often as advisable ; it was held that it was the impera- 
 tive duty of the trustees to renew if reasonable terms could be obtained; that 
 they were not to sacrifice the tenants for life to those in reversion ; that they had a 
 discretion to exercise in order to keep the estate in its present condition ; that the 
 trustees had a discretion to raise money by insuring lives out of the rents and 
 profits or by mortgage, and were bound to exercise that discretion. 
 
 ^ On a devise of successive interests in leases for lives or years, where the 
 testator directs that the leases are from time to time to be renewed, without more, 
 
OE TRUSTEES OF LEASEHOLDS. 633 
 
 And in a recent case, where leaseholds were devised to trustees in 
 trust for A. for life, subject to the rents, &c., reserved and contained 
 or to he reserved and contained in the present or future leases, and 
 to all taxes, fines, and expenses attending the premises ; the duty of 
 renewing the leases was held to be necessarily implied by those di- 
 rections.(i) 
 
 Where a trust for renewal is clearly created, the trustees will be 
 personally responsible to the cestui que trusts for any loss occasioned 
 by their neglect to renew at the proper time. Thus if the lease be 
 afterwards renewed by the remainderman at an increased fine, the 
 trustees will be decreed to repay to the remainderman the amount of 
 what he may have laid out in procuring the renewal,(^) or if neces- 
 sary they will be decreed to renew at their own expense for his 
 benefit.(Z) 
 
 But if the tenant for life have enjoyed the benefit of the non-re- 
 newal by receiving the full amount of the rents and profits, during 
 his life, the trustees in their turn will be entitled to recover from his 
 personal estate the amount that they had been compelled to pay.(m) 
 And if there are two successive tenants for life, the proportions in 
 which their respective estates will be liable to contribute to this re- 
 
 (i) Hulkes v. Barrow, Taml. 264. ferred to the Master to settle a proper 
 
 (A) Montfort'u. Cadogan, 17 Ves. 485; amount. Colegrave i). Manby, post. 
 
 19 Ves. 635; 2 Mer. 3. But if the fine (0 Milsington v. Mulgrave, 3 Mad. 
 
 so paid be unreasonable, it will be re- 491 ; 5 Mad. 472. 
 
 (m) 2 Mer. 3; 19 Ves. 635. 
 
 the fines and expenses of renewal are to be borne by the tenant for life 
 and remainderman, or parties successively entitled, in proportioii to their actual 
 enjoyment of the estate, and not in proportion to an extent of enjoyment to be 
 determined speculatively, or by a calculation of probabilities. 
 
 There is no difference in the rule as to the apportionment of fines for renewal, 
 between the devisees of successive interests in the estate, whether the leases 
 are for lives or for years. 
 
 If the testator provides a specific fund for the renewal, or directs that the 
 renewals shall be raised or borne by the parties in a certain manner, or in cer- 
 tain proportions, such direction supersedes the general rule ; but if trustees, hav- 
 ing power to direct the manner in which the fines shall be raised, do notexercise 
 the power, the court will pursue the general rule which would be adopted in the 
 absence of any direction as to the manner of proceeding for fines. 
 
 Where the tenant for life pays the whole fine on renewal, he will have a lien 
 on the estate for the proportion which shall ultimately appear to be chargeable 
 on the remainderman, or parties entitled in succession, and where the remainder- 
 man renews, or the renewal is effected by means of a mortgage of the estate, 
 the tenant for life may be required to give security to the remainderman 
 for a proportionate part of the fine, calculated upon the assumed duration 
 of the life interest ; and if that interest should endure longer than such assumed 
 period, he may be required to give further security, without prejudice, in either 
 case to the actual amount, which, at the determination of his interest, shall appear 
 to be his due proportion of the fine. Jones v. Jones, 5 Hare, 440; 10 Jur. 516; 
 see Stone v. Theed, 5 Hare, 451, note (a). 
 
634 OF TRUSTEES OP LEASEHOLDS. 
 
 payment to the trustees will depend, not on the duration of their re- 
 spective possession, but on the proportions in which they would 
 actually have suffered a diminution of income, in case the rents had 
 been properly applied towards the renewal. (n) 
 
 However, a purchaser from the tenant for life is not liable to ex- 
 onerate the trustees in such a case, though he purchased with notice 
 of the settlement, unless the deed of assignment to him expressly 
 noticed, that the interest of the tenant for life was subject to the 
 trust for renewal, (o) 
 
 The same principle will be also applied, where a tenant for life of 
 a beneficial lease is expressly directed to renew ; and in such a case, 
 if the tenant for life omit to renew at the regular period, and the ex- 
 penses of the renewal be consequently borne by the remainderman ; 
 or a fortiori if the lease be lost by the neglect to renew, the party 
 entitled in remainder will be entitled to compensation out of the 
 estate of the tenant for life.(p) 
 
 But if the remainderman effect a renewal of the lease after the 
 death of the tenant for life at an exorbitant and. unreasonable fine, 
 the estate of the tenant for life will not be bound by the amount 
 which the remainderman may have chosen to pay, but it will he re- 
 ferred to the Master to determine on the reasonable amount which 
 ought to have been paid for the renewal. (§') The same principle ap- 
 plies equally to trustees for renewal. 
 
 The lessor, however, is not compellable to renew, unless there is a 
 covenant or undertaking on his part to that effect ; although the 
 r*4S'il t^'^^'^^'s *right of renewal is so generally acted upon by eccle- 
 siastical and other'corporations, that it has become an interest 
 recognised by the court.' If, therefore, a renewal become imprac- 
 ticable, either from the direct refusal of the lessor, or from his de- 
 manding such terms as could not be conceded with benefit to the 
 trust estate, the obligation to renew will no longer be incumbent on 
 the trustees, (r) 
 
 However, in such a case, if there be an express trust for the re- 
 newal of the lease, the tenant for life will not be suffered to reap the 
 exclusive benefit of the non-renewal : for the interest minus the ex- 
 penses of renewal is all that is given him, and the remainderman will 
 not be deprived of the benefit of this exception, which was expressly 
 
 (fi) 2 Mer. 3. (g) Colegrave v. Manby, 6 Mad. 87; 
 
 (o) 19 Ves. 641. S. C. 2 Russ. 238. 
 
 Ip) Colegrave v. Manby, 6 Mad. 72 ; (r) Colegrave v. Manby, 6 Mad. 82, 
 
 2 Russ. 238; Bennett v. CoUey, 5 Sim. 83 ; Tardiff i;. Robinson, lb. 83, note. 
 181; and 2 M. & K. 225. 
 
 ' Phyfe V. Warden, 5 Paige, 268, where such an interest was held to be the 
 subject of a contract of sale. See Monro v. Taylor, 1 1 Engl. L. & Eq. 181. 
 
OP TRUSTEES OP LEASEHOLDS. 635 
 
 reserved for his advantage out of the previous particular estate, (s) 
 In those cases, therefore, where It Is impracticable to renew, a sum 
 equal to that usually paid on renewal should be raised by the trus- 
 tees from the estate, and invested for the benefit of the cestui que 
 trusts generally, including those entitled in remainder.(if)(l) 
 
 Where the trust is simply to renew the leases, when requisite, and 
 no direction is given as to the mode in which the fine and other ex- 
 penses of renewal are to be raised, it seems, that the trustees will 
 take the power of selling or mortgaging the estate for that purpose.(M) 
 And it has been decided, that a direction to raise the fine, &c., out 
 of the rents and profits, will authorize a sale or mortgage by the trus- 
 tees ; for it will not be intended, that the testator meant to confine 
 the fund for renewal to the annual rents and profits, unless that be 
 expressly declared or necessarily implied by the will. (a;) 
 
 And it is immaterial that the trust is expressed in the alternative 
 to raise the requisite sum out of the rents and profits, or by sale or 
 mortgage. («/) 
 
 But if the testator have expressly declared, that the expenses of 
 renewal shall be raised out of the annual rents and profits, or if the 
 intention so to confine the trust be otherwise sufficiently manifest, 
 the trustees will be restricted to that fund only. (2) 
 
 In Milles v. Milles(a) the term "rents and profits" was considered 
 to mean annual rents, from the circumstances of the estate, which was 
 *usually renewed every year. So in Stone v. Theed,(6) a tes- r^^ofj-i 
 tator, after directing his trustees to ' renew the leases from 
 
 (s) Colegrave v. Manby, 6 Mad. 87 : 1 Atk. 505 ; but see Shaftesbury v. Marl- 
 Bennett V. CoUey, 2 M. & K. 231. borough, 2 M. & K. 121. 
 
 {t) Colegrave v. Manby, 6 Mad. 72 ; (y) Playters v. Abbott, 2 M. & K. 97, 
 
 2 Russ. 238 ; Bennett v. CoUey, 5 Sim. 103; Greenwood v. Evans, 4 Beav. 44; 
 
 181; 2 M. & K. 225. sed vide Garmstone v. Gaunt, 9 Jurist, 
 
 («) See Meynell v. Massey, 2 Vern. 78. [See Mortimer v. Watts, 9 Engl. L. 
 
 1 ; ante, PI. IV. of this section. In Allan & Eq. 126.] 
 
 V. Backhouse, Sir Thos. Plumer puts (2) Stone ■y.Theed, 2 Bro. C. C. 243; 
 
 trusts to raise portions, and renewal Milles v. Milles, 6 Ves. 761; Earl of 
 
 fines on the same footing. 2 Ves. & B. Shaftesbury v. Duke of Marlborough, 2 
 
 75; see Buckeridge v. Ingram, 2 Ves. M. & K. 122; see Anon. 1 Vern. 104; 
 
 jun. 666; Earl of Shaftesbury v. Marl- Allan v. Backhouse, 2 V. & B. 77; vide 
 
 borough, 2 M. & K. 121. supra, PI. IV. of this Section, page 367, 
 
 (a:) Ivy v. Gilbert, 2 P. Wms. 13; and p. 355. 
 
 Free. Ch. 583; Allan v. Backhouse, 2 (o) 6 Ves. 761. 
 
 V. & B. 65; Jac. 631 ; Green v. Belcher, (6) 2 Bro. C. C. 243. 
 
 (1) In Tardiffu. Robinson, which is stated in the note to 6 Mad. 83, a crown 
 lease was settled in trust for one for life, and there was a trust to reserve a fund 
 out of the rents for the purpose of renewal. The renewal of the lease became 
 impracticable, and it was decided, that the trust of the reserved fund ceased for 
 the sole benefit of the tenant for life. But this decision must be considered as 
 overruled by the authorities cited in the text. 
 
636 OP TRUSTEES OP LEASEHOLDS. 
 
 time to time, empowered them to invest the overplus of the rents, and 
 it was held by Lord Thurlow, that the renewal expenses were^to be 
 raised out of the annual rents, on the ground that the direction as to 
 the investment of the surplus rents showed that such was the testa- 
 tor's intention. In the late case of Shaftesbury v. Duke of Marl- 
 borough,(e) a trust to renew out of the " rents, issues, and profits," 
 was held by Sir J. Leach, M. E., to be confined to the " annual 
 rents," on the authority of Stone v. Theed in opposition to Allan v. 
 Backhouse. 
 
 In the recent case of Garmstone v. Gaunt, there was a devise of 
 leaseholds for lives to trustees in trust to renew ly and out of tJie 
 rents and profits, or otherwise ; and Vice-Ohancellor Bruce was of 
 opinion, that this trust authorized a mortgage, hut not a sale, of the 
 leaseholds, although the mortgagee might afterwards procure a sale.(cZ) 
 
 On the whole, the effect of a trust to renew out of " rents and 
 profits," generally is left in a very unsatisfactory state by the autho- 
 rities, and can only be finally determined by future judicial decision. 
 
 Where the leases are for lives, and the settlor has created no 
 express fund for their renewal, the court has sanctioned the plan of 
 insuring the lives of the cestui que vie to an amount sufficient to cover 
 ,the usual expense of renewing on the dropping of a life. And in 
 such cases the annual premiums on the policy of insurance must be 
 paid out of the income of the estate ;(e) (1) the trustees, therefore, 
 would doubtless be justified in having recourse to this mode of effect- 
 ing the renewal of their own authority ; and it may be remarked, that 
 it has one peculiar recommendation, viz7, that of obviating the diffi- 
 culty of adjusting the relative liabilities of the tenant for life, and 
 remainderman to contribute to the expenses of the renewal. (/) 
 
 The periods of renewal of leaseholds and copyholds held on lives, 
 are necessarily uncertain: consequently the power of the trustees to 
 raise the fines, &c., by sale or mortgage, will be more readily implied 
 than where the trust estate consists of leaseholds for years. For, with 
 respect to the latter, the times of renewal are known and certain, 
 and the trustees may retain annually a portion of the rents from the 
 tenant for life, in order to form a fund for renewal.(^) 
 
 (c) 2 M. & K. Ill, 121. wood V. Evans, 4 Beav. 44; sed.vide 
 
 {d) Garmstone v. Gaunt, 9 Jurist, 78. Grantley v. Garthwaite, 6 Mad. 96. 
 
 [1 Coll. 581.] (/) See Greenwood v. Evans,4Beav. 
 
 (e) Earl of Shaftesbury v. Duke of 46. 
 
 Marlborough, 2 M. &K. 124; Green- {g) Earl of Shaftesbury v. Duke of 
 
 Marlborough, 2 M. & K. 121. 
 
 (1) However, in one case, where the amount of the renewal fine was directed 
 to be raised by sale or mortgage. Sir J. Leach, V. C, held that he had no au- 
 thority (o decree an insurance of the life of the cestui que vie, and a mortgage 
 being impracticable, his Honor directed an absolute sale. Grantley v. Garth- 
 waite, 6 Mad. 96. 
 
OF TRUSTEES OF LEASEHOLDS. 637 
 
 It has also been held, that a mortgage for raising the required 
 amount will be more proper than an absolute sale.Qi) 
 
 Where the amount of the renewal fine is raised out of the corpus 
 of the estate, it frequently becomes a matter of considerable diflSculty 
 to *arrange the relative liabilities of the tenant for life, and 
 
 in remainder to contribute to' its discharge. («') The tenant 
 
 [*437] 
 
 for life is clearly bound to keep down the interest of this as of other 
 charges,(7(;) but the difficulty is to determine whether he is also bound 
 to pay any, and if any, what proportion of the capital. 
 
 The old rule was, that the tenant for life should contribute one- 
 third of the principal in addition to keeping down the interest. (Z) 
 But this being considered unreasonable, was soon altered, and the 
 doctrine of the court, both as to leaseholds for lives and for years, 
 unless it be controlled by any direction of the settlor, now is, that 
 the contribution of the tenant for life shall be in proportion to the 
 benefit derived by him from the renewal ; and it will be referred to 
 the Master to ascertain and settle this proportion. (wi)' 
 
 However, an exception to this rule has been established, where the 
 lease is on lives, and the tenant for life is himself one of the lives, on 
 which the lease depends. Por in that case, it is obvious, that the 
 tenant for life would derive no benefit from the renewal, and there- 
 fore he will not be liable to contribute to the expense of efi'ecting 
 it.(w) Lord Hardwicke was of opinion that this exception would 
 apply, whether the legal estate in the lease was vested directly in the 
 tenant for life, or in trustees for him ;(o) although Lord Alvanley 
 seems to have entertained some doubt on this latter point. (^) But 
 where there is an express direction by the settlor, that the- leases 
 should be constantly renewed by the trustees, it is conceived that the 
 tenant for life, who was so situated, could not successfully urge the 
 exception in question in opposition to his liability to a proportion of 
 the renewal expenses. 
 
 (A) Garmstone v. Gaunt. 9 Jurist, 78 C. 440 : White v. White, 4 Ves. 33; 9 
 
 [1 Coll. 581] ; see Playters v. Abbott, Ves. 554; Allen v. Backhouse, 2 V. & 
 
 2 M. & K. 104. B. 79 ; Playters v. Abbott, 2 M. & K. 
 
 (i) Greenwood v. Evans, 4 Beav. 46. 108, 9 ; Randall v. Russell, 3 Mer. 190 ; 
 
 Ik) White V. White, 4 Ves. 33; 9 Earl of Shaftesbury v. Duke of Marl- 
 
 Ves. 562 ; Allan v. Backhouse, 2 V. & borough, 2 M. & K. 121 ; Greenwood ■;;. 
 
 B. 79; Playters v. Abbott, 2 M. & K. Evans, 4 Beav. 44, 48. 
 
 110. . (n) Verney u. Verney, Ambl. 88; 1 
 
 (/) Verney v. Verney, Ambl. 88; S. Ves. 428; White u. White, 4 Ves. 33; 9 
 
 C. 1 Ves. 428; White v. White, 4 Ves. Ves. 561. 
 
 33; 9 Ves. 554; Graham v. Lord Lon- (o) 1 Ves. 429. 
 donderry, 2 Bro. C. C. 246, cited. (p) 4 Ves. 33. 
 
 (to) Nightingale v. Lawson, 1 Bro. C. 
 
 ' See ante, p. 395, note. 
 
638 OF TRUSTEES OF LEASEHOLD^. 
 
 It is almost unnecessary to state, that the general rule of the 
 court, as to the mode of raising the renewal fines, and the contri- 
 bution of the tenant for life, -vvill be controlled by the intention of the 
 settlor, as it is to be collected from the trust instrument. (g') And 
 upon this principle, -where a testator had expressly created a particu- 
 lar fund for the renewal of a lease, it was held that the tenant for 
 life could not be called upon to contribute to the expenses of re- 
 newals ultra the reserved fund.(r) And in another case, where a tes- 
 tator authorized a sale or mortgage to raise the renewal expenses, 
 and then added a direction for the trustees to pay the clear rents of 
 the premises to A., subject to the annual interest or deduction to be 
 occasioned by the sale or mortgage, the tenant for life was held not 
 liable to contribute to the discharge of any part of the principal of 
 the debt.(s) 
 
 r*4^81 *^° ^^ *^® other hand, if the testator have clearly shown 
 a,n mtention, that the interest of the particular tenant for the 
 time being should be solely liable to the expenses of renewals, that 
 intention will be enforced in favor of the remainderman against the 
 tenant for life. For instance, where the first trust declared is, that 
 the trustees out of the rents and profits shall from time to time 
 renew as occasion may require, and the estate is limited in strict set- 
 tlement, subject to that trust. The trust for renewal overrides all 
 the subsequent beneficial interests, which cannot take effect until it is 
 performed, and the expense of renewing will, therefore, be considered 
 an incident to the estate, which is, from time to time, to fall upon 
 the party in possession under the will ; and the tenant for life will 
 have no claim for contribution against the parties entitled in remain- 
 der, (t) However, it has been already stated, that a direction to raise 
 the requisite amount out of the rents and profitSj'yfiW not of itself be 
 sufficient to throw the charge exclusively on the tenant for life ; 
 although such will be the result where the charge is confined ex- 
 pressly or by implication to the annual income of the property.(M) 
 Upon the whole it will be seen, that the authorities are so doubtful 
 both as to the mode of raising the expenses of renewal, and the re- 
 lative liabilities of the tenants for life and in remainder to bear or 
 contribute to those expenses, that a trustee could rarely be advised 
 to take upon himself the responsibility of deciding those questions. 
 And if any such should arise in practice, and they are not clearly 
 
 (g) Playters v. Abbott, 2 M. & K. (s) Playters ij. Abbott, 2M.&K. 110. 
 109; Earl of Shaftesbury v. Duke of («) Earl of Shaftesbury v. Duke of 
 
 Marlborough, Id. 119. Marlborough, 2 M. & K. Ill, 122, 
 
 (r) White v. White, 4 Ves. 24; 9 (u) Milles u. Milles, 6 Ves. 761; see 
 
 Ves. 554; and see Stone v. Theed, 2 Anon. 1 Vern. 104; Stone ii. Theed, 2 
 
 Bro. C. C. 243. Bro. C. C. 246, vide supra. 
 
OF TRUSTEES OF LEASEHOLDS. 639 
 
 contemplated and provided for by the trust instrument, the trustees 
 could only act with safety under the direction of the court. 
 
 A trustee who renews a lease in his own name, and enters into 
 covenants for repairs, &c., is entitled to be indemnified against a 
 breach of such covenants out of the assets of the cestui que trust. {x) 
 
 On the principle, that the right of renewing a beneficial lease is 
 an interest which will be recognised and protected by the court for 
 the benefit of the trust estate, the trustees will have a title to com- 
 pensation for the loss of that right, in case they are deprived of it 
 by the act of a third party. Thus, in a recent case, where the re- 
 newal of a church lease held in trust was rendered impossible from 
 the property being required for the purposes of an act of parliament, 
 the trustees were authorized by the court to take steps for obtaining 
 the insertion of a clause in the act, giving them compensation for the 
 loss.(y) 
 
 Trustees of leaseholds cannot renew in their own names for their 
 own benefit; but if any renewal be made, the new lease will be held 
 on the same trust as the old one.(3)* And this doctrine is founded 
 on the general equitable principle, that a trustee shall not be allowed 
 to take advantage of his position to obtain any personal advantage 
 to himself out of the trust estate. (a) And it is immaterial, that the 
 lessor had positively ^refused to renew for the benefit of the r:|:4qQ-| 
 cestui que trust, from some personal objection to him, before 
 the trustee obtained the renewal for himself.(6) 
 
 The same rule also applies to tenants for life, or other persons — 
 such as tenants in common, or partners — having a particular estate 
 in a renewable lease : all such persons will be trustees of any new 
 lease, obtained by them for those entitled in remainder.(e) But the 
 
 {x) Marsh v. Wells, 2 S. &St. 90. (6) Keech v. Sandford, Sel. Ca. 61 ; 
 
 iy) Jones v. Powell, 4 Beav. 96. Fitzgibbon v. Scanlan, 1 Dow. 269. 
 
 (?) Keech v. Sandford, Sel. Ca. Ch. (c) Palmer v. Young, 1 Vem. 376 ; 
 
 61 ; [1 Lead. Cas. Eq. 47, 54, and Am. Taster v. Marriott, Ambl. 658 ; Rawe v. 
 
 note;] Holt v. Holt, 1 Ca. Ch. 190; Chichester, Ambl. 715; Pickering v. 
 
 Rawe v. Chichester, Ambl. 719; Griffin Vowles, 1 Bro. C. C. 197; Fitzgerald ^j. 
 
 V. Griffin, 1 Sch. & Lef. 352; James v. Raynsford, 1 Ball & B. 37, n.; Eyre v. 
 
 Dean, 11 Ves. 392 ; 15 Ves. 236 ; Fitz- Dolphin, 2 Ball & B. 290 ; Featherston- 
 
 gibbon V. Scanlan, 1 Dow. P. Rep. 269; haugh v. Fenwiok, 17 Ves. 298; Ran- 
 
 Killick V. Flexney, 4 Bro. C. C. 161; dall v. Russell, 3 Mer. 196, 197; Tan- 
 
 Parker'U. Brooke, 9 Ves, 583. ner v. Elworthy, 4 Beav. 487 ; Giddings 
 
 (a) James ^. Dean, 11 Ves. 392; Nes- d. Giddings, 3 Buss. 241. [Vanhorne v. 
 
 bitt V. Tredennick, 1 Ball & B. 29. Fonda, 5 J. C. R. 388 ; Smiley v. Dixon, 
 
 1 Pa. R. 439, 1 Lead. Cas. Eq. 56, Am. n.] 
 
 ' See post, page 539, n. (a) ; Holdridge v. Gillespie, 2 J. C. R. 33 ; Galbraith v. 
 Elder, 8 Watts, 81 ; Fisk v. Sarber, 6 Watts &Serg. 18 ; McClanachan v. Hender- 
 son, 2 A. K. Marsh. 388; case of Heager's Exr's, 15 S. & R. 65. 
 
640 OF TKUSTBES OF ADVOWSONS. 
 
 rule will not \)e extended to a quasi tenant in tail or the original 
 lease. (d) 
 
 In all these cases, however, the parties who seek to enforce the 
 trust of the renewed lease, will not be relieved, except on the terms 
 of repaying to the trustee, or other person, renewing the sums ex- 
 pended by him in obtaining the renewal, or a due proportion of them, 
 in the case of a tenant for life.(e) 
 
 In an early case, a trustee for a lunatic was discharged from the 
 trust for taking a renewal of a lease for himself.(/) 
 
 A trustee, or tenant for life, of leaseholds, who renews, and him- 
 self pays the fines and other expenses of renewal, will have a lien 
 on the estate for the amount ; or, in the case of a tenant for life, for 
 a proper proportion of the amount, with interest.(5r) 
 
 XII. — OF TRUSTEES OP ADVOWSONS, AND PRESENTATIONS TO 
 ECCLESIASTICAL BENEFICES. 
 
 It has been already stated, that the legal right to present to a 
 benefice is vested in the trustees having the legal estate in the ad- 
 vowson ; but the right of nomination belongs, in equity, to the ces- 
 tui que trusts, whose nominee the trustees will be bound to pre- 
 sent. (A) 
 
 Where the trusts of the advowson are expressly declared, no 
 question can arise as to the relative rights of the trustees and ces- 
 tui que trusts. And it may be observed, that if a testator make a 
 general disposition of the whole beneficial interest in his real estate, 
 the right of nominating to a benefice on a vacancy will pass by that 
 gift, though it is not expressly included in it. For instance, where 
 there was a devise of manors, lands, &c., to a trustee to receive the 
 rents, issues, and profits, and dispose of the same for the benefit of 
 A., it was held, that an advowson passed by the devise, and a sale of 
 the next presentation by the trustee, by the direction and for the 
 benefit of A., was established, to the exclusion of the testator's heir- 
 at-law, who claimed to be entitled by resulting trust for want of an 
 express disposition.(i) 
 
 And even if no trust of the devised estate be expressly declared, 
 yet if the devisees take the legal estate in the character of trustees 
 
 (d) Blake v. Blake, 1 Cox, 266. (ft) Ante, p. 261 ; Att.-Gen. v. Forster 
 
 (e) See James v. Dean, 11 Ves. 396 ; 10 Ves. 328 ; Att.-Gen. v. Newcombe, 
 Randall v. Russell, 3 Mer. 196. 14 Ves. 8; Att.-Gen. v. Parker, 3 Atk. 
 
 (/) Ex parte Phelp, 9 Mod. 357. 577 ; Martin v. Martin, 12 Sim. 579. 
 
 Ig) Holtu. Holt, 1 Ch. Ca. 190; Rawe (i) Earl of Albemarle v. Rogers, 2 
 
 V. Chichester, Ambl. 715, 720 ; Kemp- Ves. jun. 477 ; S. C. 7 Bro. P. C. 522. 
 ton V. Packman, 7 Ves. 176, citefl. 
 
OF TRUSTEES OF ADVOWSONS. 641 
 
 only, they *will not be allowed to take the right of presen- r+n^rt-i 
 tation, as a benefit undisposed of, for themselves (though it -' 
 
 is one of no pecuniary value), but that right 'will result as fruit undis- 
 posed of to the heir-at-law. (A) 
 
 In the late case of Martin v. Martin,(Z) a testator devised an 
 advowson and all other his real estates, and also his personal estate, 
 to trustees in trust to pay the " rents, dividends, interest, and annual 
 income" of his real estates, until sold as after directed, and of his 
 personal estate to his sister, until she should have a child, and then 
 in trust for her children or child who should attain twenty-one, and 
 if she should have no such child, then in trust after her death for the 
 trustees, their heirs, &c. He then directed the trustees to sell the 
 advowson and other real estates with all convenient speed after his 
 death, and to stand possessed of the proceeds upon the trusts before 
 declared. There was also a power for the trustees to apply the 
 " rents, dividends, interest, and annual income" of his real estates, 
 until sold, for the maintenance of the sister's children during their 
 minorities, and a direction that the surplus "rents, &c." should be 
 invested and accumulated. The testator was the incumbent of the 
 living, of which the advowson was so devised, and it consequently 
 became vacant by his death, and could not be sold according to the 
 trust. His sister, who was also his heiress-at-law, had three children 
 living at his death, and the question was, whether the sister, or her 
 children, or the trustees, were entitled to present to the vacant living. 
 It was held by the Vice-Chancellor of England, that, as the presen- 
 tation did not produce " awy rents, dividends, interest or annual 
 income," it was not included in the trusts declared for the children, 
 and that the sister was entitled to the presentation as the testator's 
 heiress-at-law. {II) 
 
 In Edenborough v. Archbishop of Canterbury(m) there was a 
 grant of an advowson by Queen Elizabeth to four persons their heirs 
 and assigns without expressing any trust, further than by reciting a 
 prior grant of the same advowson to two persons and the parishioners 
 of the church for twenty-one years. However, the trust for the 
 benefit of the parishioners had continually been admitted and acted 
 upon by the feoffees from the time being down to the year 1823, 
 and at the hearing of the cause in 1826, it was treated on all sides 
 as a clear trust, and no question was raised as to the right of the 
 original grantees to take beneficially. 
 
 (A) Kensey v. Langham, Forr. 143; (Z) Martin v. Martin, 12 Sim. 579. 
 Sherrard u. Lord Harborough, Ambl. (U) lb. 
 165; Earl of Albemarle v. Rogers, 2 (m) 2 Russ. 93. 
 Ves. jun. 482 ; Martin v. Martin, 12 Sim. 
 579. 
 
 41 
 
642 OP TRUSTEES OF ADVOWSONS. 
 
 However, it is clear that the trustees of advowsons will be at 
 liberty to exercise their right of presentation for their own benefit, 
 if such be the intention of the creator of the trust. Thus where the 
 trustees had a discretionary power of selection from amongst certain 
 specified objects, amongst whom one of the trustees was himself in- 
 cluded, the court refused to restrain the other trustee from pre- 
 senting his co-trustee, for he was clearly an object of the testator's 
 intention, and there was no proof of any corrupt or simoniacal 
 motive, (m) 
 
 Where there are several cestui que trusts of an advowson, who 
 are jointly entitled to the right of nomination, and there has been no 
 severance of their joint ownership by an arrangement providing for 
 the alternate exercise *of the privilege of nominating, it was 
 L J laid down by Lord Hardwicke, that they must all agree, or 
 there can be no nomination, (o) But any arrangement by the cestui 
 que trusts for the successive or alternate right of nomination will be 
 binding on the trustees. 
 
 And where an advowson is held in trust for the inhabitants or 
 parishioners of a place, it has been determined, that the trustees will 
 be bound to present the clerk, who is nominated by the majority of 
 the cestui que trusts qualified to vote.(p) Unanimity in such a case 
 is obviously almost impracticable, and to require it would defeat the 
 object of the trust. 
 
 Where the trust of an advowson is for the parishioners or inhabi- 
 tants of the parish generally, the right of nomination has in practice 
 usually been restricted to the parishioners paying church and poor 
 rates. And where this restriction is supported by proof of habitual 
 usage, it will be recognised, and acted upon by the court in directing 
 the execution of the trust, (g) For some sort of construction must 
 necessarily be put upon trusts couched in such general terms, and 
 there is no better way of construing them than by usage. (r)(l) 
 
 But where this limited construction has not been put upon the 
 
 (n) Potter v. Chapman, Ambl. 98. Att.-Gen. v. Forster, 10 Ves. 335; Att.- 
 
 (0) Seymour v. Bennett, 2 Atk. 483. Gen. v. Newcombe, 14 Ves. 1 ; Fearon 
 \p) F«aron v. Webb, 14 Ves. 13, u. Webb, 14 Ves. 13; Att.-Gen. v. Rut- 
 
 seo. .24; Att.-Gen. v. Rutter, 2 Russ. ter, 2 Russ. 101, n. ; Edenborough v. 
 
 101, n., see 103; Edenborough v. Arch- Archbishop of Canterbury, 2 Russ. 93. 
 bishop of Canterbury, 2 Russ. 108. (r) Per Lord Hardwicke, 3 Atk. 577. 
 
 (5) Att.-Gen. v. Parker, 3 Atk. 576, 7 ; 
 
 (1) In the case of Attorney-General v. Forster, 10 Ves. 342, Lord Eldonap- 
 pears to have considered it as a point of considerable doubt, in the absence of 
 authority, whether the trust was such as the court could execute. But his Lord- 
 ship added, that it was then too late even to state that doubt, as his judgment 
 was bound by the decision of Lord Hardwicke and the Court of Exchequer, 
 which left no doubt, but that the court was bound to execute the trust. 
 
OP TRUSTEES OF ADVO'WSONS. 643 
 
 trust by usage, it has been held, that a part of the parishioners can- 
 not by their vote or declaration narrow the right of voting, so as to 
 exclude those who do not pay a poor or church rate.(s) And it is 
 clear, that if the usage have been for all housekeepers to take a part 
 in the nomination, that custom will prevail.(<) Moreover, the usage 
 of confining the right of voting in these cases to the payers of 
 church and poor rates, ought to be constant and invariable.(M) 
 
 Where the right of voting is restricted to rate-payers, those 
 parishioners have no right to vote who are rateable, but have not 
 been actually rated, from having come into the parish since the last 
 rate and before another has been made, unless the rate has been 
 postponed for any unfair purpose. (a;) In the same case, it was Lord 
 Eldon's opinion, that Jew parishioners, being otherwise qualified, 
 were entitled to vote at the election of a vicar, though Roman 
 Catholics were not so entitled ; and that opinion was acted upon in 
 the election on that occasion.(«/) The Catholic Relief Act{z) which 
 has since passed, does not appear to have afiFected the principle, on 
 which this distinction must have proceeded. 
 
 The election of an incumbent by the parishioners under a trust of 
 this *description must be by open polling and not by bal- p^ ...-,-, 
 lot ;(a) for where the votes are given by ballot, the trustees "- -^ 
 cannot know whether the party, whom they are required to present, 
 has been duly elected by the majority of proper votes. (J) However, 
 it would be otherwise, if it could be shown, that all the cestui que 
 trusts who had the right to vote, had agreed to abide by the result 
 of an election made by ballot.(e) 
 
 The right of nomination to a benefice, when vested in the pa- 
 rishioners at large, is not of a charitable or public nature ; and any 
 question arising upon the construction or exercise of that right, must 
 be brought before the court by an ordinary suit between the parties, 
 as in other cases of private rights. An information for such a pur- 
 pose by the Attorney-General is improper, and will be dismissed, 
 except so far as it relates to keeping up the number of the trustees, 
 or to the payment of a pension or salary to the incumbent, ((i) 
 
 At law, an infant of the most tender years ma,j present to a church 
 
 (s) Faulkner v. Elger, 4 B. & Cr. ' (a) Edenborough v. Archbishop of 
 
 449 ; Edenborough v. Archbishop of Canterbury, 2 Russ. 93 ; Faulkner v. 
 
 Canterbury, 2 Russ. 104. Elger, 4 B. & Cr. 449. 
 
 (0 Att.-Gen. v. Parker, 3 Atk. 577. (6) 2 Russ. 108, 9. 
 
 (u) Edenborough v. Archbishop of (c) Ibid. 
 
 Canterbury, 2 Russ. 104. (rf) Att.-Gen. v. Newoombe, 14 Ves. 1, 
 
 (x) Edenborough v. Archbishop of 6 ; Att.-Gen. v. Parker, 1 Ves. 43 ; see 
 
 Canterbury, 2 Russ. 110, 111. Fearon v. Webb, 14 Ves. 19 ; Att.-Gen. 
 
 {y) 2 Russ. 111. V. Cuming, 2 N. C. C. 139, 149. 
 
 (z) 10 Geo. IV. c. 7. 
 
644 01 TKUSTEES OF ADVOWSONS. 
 
 on its avoidance, and it has been decided, that he will have the same 
 right of nomination in equity. In Arthington v. Coverley,(e) an ad- 
 vowson was conveyed to trustees, in trust (in a certain event which 
 happened), to present such person as the grantor, his heirs, or as- 
 signs, should appoint ; and, in default of such nomination by the 
 grantor, or his assigns, that the trustees should present a person of 
 their own choosing. The grantor died, leaving his son and heir, an 
 infant six months old. On a vacancy of the benefice, the guardian 
 of the infant made him seal and put his mark to an instrument no- 
 minating a clerk to the living, and the trustees were compelled to 
 present this nominee on a bill filed against them by the infant for 
 that purpose. 
 
 Mr. Hargrave, however, has suggested a doubt, as to how far a 
 court of equity would support a nomination obtained from an infant 
 without the concurrence of his guardian ;(/) and there can be no 
 question but that such a transaction would be regarded with jealousy, 
 and relieved against, if any case of undue contrivance or imposition 
 were established. 
 
 The bankruptcy of the cestui que trust of an advowson will not 
 deprive him of the right of nominating to a vacancy, which occurs 
 before the advowson or next presentation is sold by the assignees.(^) 
 By the 77th section of 6 Geo. IV. c. 16, the assignees of a bankrupt 
 are authorized to execute all powers which the bankrupt could legally 
 execute for his own benefit (except the right of nomination to any 
 ecclesiastical benefice). As the void turn cannot be sold, it is not 
 assets for the benefit of the creditors.(^) 
 
 By the statutes 1 Will. & M. c. 26, and 12 Ann. c. 14, s. 1, 
 Roman Catholics are disabled from presenting to any ecclesiastical 
 benefice, and the right of patronage is transferred to the Universities 
 r*44«in °^ Oxford and *Cambridge.(l) By the 3d section of the 
 ^ statute of Will. & M., trustees of Roman Catholics are also 
 
 disabled from making any such presentation ; and by the 4th section 
 the trustees incur a penalty of 500?. by presenting to a benefice 
 without giving notice of the avoidance to the Vice-Chancellor of the 
 University to which the presentation belongs. The statute 11 Geo. 
 II. c. 17, s. 5, declares, that every grant of any advowson or right 
 of presentation or nomination to any benefice by .Roman Catho- 
 lics, or by their trustees, or mortgagees, shall be null and void, unless 
 it be for a valuable consideration to a Protestant purchaser. 
 
 (e) 2 Eq. Cas. Abr. 518. (g) Wats. 106 ; 3 Cruis. Dig. 20. 
 
 (/) 1 Co. Litt. 89, a. n. 1. \h) 3 Cruis. Dig. 20, n. 
 
 (1) The presentation to the livings south of the Trent, belongs to the University 
 of Oxford, and to those north of that river, to Cambridge. 
 
OF TRUSTEES OF ADVOWSONS. 645 
 
 The incapacity of Roman Catholics to present or nominate to 
 livings, has not been removed by the late act (10 Geo. IV. c. 7) for 
 the relief of persons of that religious persuasion ; for by the 16th 
 section of that statute, it is expressly declared, that nothing therein 
 contained shall extend to enable any person otherwise than he was 
 then by law enabled, to exercise any right of presentation to any 
 ecclesiastical benefice whatever ; or to repeal, vary, or alter, in any 
 manner, the laws then in force in respect to the right of presentation 
 to any ecclesiastical benefice. 
 
 A lunatic cesttii que trust cannot nominate to a benefice, nor can 
 his committee ; but the right of patronage will be exercised by the 
 Lord Chancellor, by virtue of the general authority delegated to him 
 by the crown. («') 
 
 Where a feme sole, having an equitable estate in advowson, mar- 
 ries, and the husband's marital rights are not modified by settlement, 
 the trust of the advowson will vest in him in right of his wife, and 
 he will have the right of nomination upon any avoidance that hap- 
 pens during the continuance of that estate. Husbands may take an 
 estate by curtesy ; and since the statute of 3 & 4 Will. IV. c. 105, 
 widows will be entitled to dower, of the trust of an advowson, and 
 will respectively have the right of nomination upon any avoidance 
 during the continuance of those estates, (/c) 
 
 Aliens, traitors, felons, and outlaws, are incapable of exercising 
 the right of presentation ; but where the legal estate is vested in 
 them, that right is forfeited to the crown. (Z) There might be a ques- 
 tion, how far the trustees for such persons would become entitled to 
 present for their own benefit, to the exclusion of the title of the 
 crown.(?n) 
 
 Where an advowson is vested in several trustees, they must all 
 join in signing the presentation on a vacancy, and the ordinary can- 
 not be compelled to admit the clerk, where all the trustees have not 
 concurred.(w) 
 
 However, this rule does not apply where the trustees have been 
 incorporated by charter; for the major part of those who attend at 
 a meeting of the corporation, would have the power of binding the 
 rest by affixing the corporate seal to a presentation. But in such a 
 case, it seems that all the other trustees must have received notice of 
 the intended meeting, (o) 
 
 *And where it is expressly declared by the trust, that the r^A..-, 
 major part of the trustees shall have the right of appoint- ^ ^ 
 
 (i) 3 Cruis. Dig. 22. Seymour v. Bennett, 2 Atk. 483 ; Co. 
 
 (i) lb. 14. Litt. 186, b; Wilson v. Dennison, Ambl. 
 
 Q) Wats. 106. 82. 
 
 (m) Ante, Pt. II. Ch. III. p. 335, 6. (o) Att.-Gen. v. Davy, 2 Atk. 212 ; 
 
 (n) Alt.-Gen. v. Scott, 1 Ves. 413, 4: Wilson v. Dennison, Ambl. 82. 
 
646 OF TRUSTEES OF ADVOWSONS. 
 
 ment, those who dissent from the choice of the majority will not- 
 withstanding be bound by their election, and will be compelled to 
 give legal effect to it by joining in the presentation of the clerk so 
 chosen to the bishop, (p) And if the dissenting trustee in such a case 
 refuse to concur in the presentation, he will not be allowed his costs 
 of a suit occasioned by his refusal.(g') And as these trusts are in 
 the nature of public ones, it seems that the decision of the majority 
 would be binding on the whole number without any express direction 
 for that purpose in the trust instrument.(r) 
 
 However, in these cases the right of election is vested equally in 
 all the trustees, and they must all have due notice of the intended 
 meeting for the purpose of election. Therefore in a case, where 
 twelve out of twenty-three trustees, being in favor of a particular 
 candidate for the living, met and appointed him to the vacancy with- 
 out giving notice of their intention to the other eleven trustees, who 
 supported a rival candidate, the election was declared void for want 
 of due notice, (s) 
 
 Where the power of choosing a clergyman to fill the vacancy is 
 vested in the trustees, that being a personal trust cannot be dele- 
 gated by them to others, and they cannot therefore vote by proxy 
 at the election ;(^) although where the choice has been regularly 
 made, the power of signing the presentation, being a mere ministe- 
 rial act, may be deputed by proxy to the others. (m) 
 
 A direction in the trust instrument that the trustees shall meet for 
 the purpose of election within a certain time — as four months or 
 eight days after the occurrence of a vacancy, need not necessarily 
 be observed ; and an appointment by the trustees having the legal 
 estate will not be invalidated, because it was made after the pre- 
 scribed period, (a;) 
 
 So a declaration, that when the trustees are reduced to a certain 
 number, new ones shall be appointed, has been held to be merely 
 directory. And where the required number has not been kept up, 
 a presentation by the then existing trustees, (?/) though they may 
 have been reduced to one only,(z) or even by the heir of the last 
 surviving trustee,(a) has been supported. 
 
 (p) Att.-Gen. v. Scott, 1 Ves. 413; 417; Wilson v. Dennison, Ambl. 82, 
 
 Att.-Gen. v. Gunning, 2 N. C. C. 139; 86. 
 
 Wilson V. Dennison. Ambl. 82. (u) Ibid. 
 
 (5) 5 N. C. C. 156, 7. \x) Att.-Gen. v. Scott, 1 Ves. 413, 
 
 if) Att.-Gen. v. Scott, 1 Ves. 413, 415; Lansdown case. Ibid, cited, 
 
 ante, Ch. I. Sect.l. (1/) Att.-Gen. v. Scott, 1 Ves. 413; 
 
 («) Att.-Gen. v. Scott, 1 Ves. 413; Att.-Gen. ■«. Cuming, 2 N. C. C. 139. 
 
 and see Att.-Gen. v. Cuming, 2 N. C. C. (z) Att.-Gen. v. Floyer, 2 Vern. 748. 
 
 139. (a) Att.-Gen. v. Bishop of Lichfield, 
 
 (0 Att.-Gen. v. Scott, 1 Ves. 413, 5 Ves. 825. 
 
OF TRUSTEES OF STOCK OR SHARES. 647 
 
 But in such cases the court will take care that the number of trus- 
 tees is properly filled up for the future ;{b) and -where the appoint- 
 ment in question is set aside, it -will direct new trustees to be ap- 
 pointed, before the fresh election is made.(c) An information may 
 be filled by the Attorney-General to have the requisite number of 
 trustees supplied.(c?) 
 
 Pending a suit respecting the right of nomination or presentation 
 to a *benefice, the bishop will be restrained from taking ad- r-j^iAr-, 
 vantage of the lapse, and exercising the right of presentation L -• 
 himself.(e) 
 
 If a trustee refuse to present on the nomination of his cestui que 
 trust, he will be compelled to do so by the decree of the court ; and 
 if his refusal were unreasonable or improper, he would doubtless be 
 fixed with the costs. Although if he acted from conscientious though 
 mistaken motives, he would not be made to pay the costs, although 
 he might not be allowed to receive them.(/) 
 
 If the presentation were lost by lapse, owing to the refusal of the 
 trustee to present, there can be no question, but that he would be 
 held personally responsible to the cestui que trust for the damage 
 sustained by him. 
 
 XIII. — OF TRUSTEES OF STOCK OR SHARES. 
 
 The Bank of England is not bound to take notice of a trust afi"ect- 
 ing public stock standing in their books ; and they will refuse to 
 recognise any other than the legal title. (^)(1)' And the rule of the 
 Bank is in general not to allow a sum of stock to be transferred into 
 the names of more than four co-proprietors. 
 
 The first duty of trustees of stock is to receive the dividends, and 
 apply them to the purposes of the trust. However, when the cestui 
 
 (6) A.tt.-Gen. v. Bishop of Lichfield, (/) Alt.-Gen. v. Cuming, 2 N. C. C. 
 
 5 Ves. 825, 831. 139, 156. 
 
 (c) Att.-Gen. v. Scott, 1 Ves. 419. (g) Hartga v. Bank of England, 3 
 
 (_d) Att.-Gen. «. Newcombe, 14 Ves. Ves. 55; Bank of England t). Moffat, 3 
 
 1, 12. Bro. C. C. 260; Bank of England v. 
 
 (e) Edenborough v. Archbishop of Parsons, 5 Ves. 665. 
 Canterbury, 2 Russ. 92, 111 ; Att.-Gen. 
 V. Cuming, 2 N. C. C. 139, 145. 
 
 (1) And where a creditor has obtained an order under the 15th sect, of the 
 late act, 1 & 2 Vict. c. 110, charging interest of his debtor in stock, which stands 
 in the name of trustees, the Bank will still pay the dividends to the trustees, who 
 have the legal title to receive them, and the trustees are to apply the dividends 
 according to the equitable interests of the parties. Bristed v. Wilkins, 3 Hare, 
 235. 
 
 ' See note, ante, page 174. 
 
648 OF TRUSTEES OF STOCK OE SHARES. 
 
 que trust is absolutely entitled to the receipt of the whole income 
 without deduction, a power of attorney to receive the dividends will 
 be properly given by the trustees to the cestui que trust or his as- 
 signs.(A) 
 
 The power of attorney must be executed by all the trustees, and 
 it will become void and must be renewed on the death of the parties 
 by whom it is given. So the power will be revoked, if the trustees 
 themselves on any occasion apply for and receive the dividends. 
 
 The remedy for a cestui que trust, under the act 1 Will. IV. c. 
 60, in case of the incapacity of the trustee of stock, or his refusal 
 or neglect to transfer or pay the dividends, has been already con- 
 sidered.(i) 
 
 The acts for the reduction of stock always provide, that any en- 
 gagement respecting the original stock, shall be satisfied by the same 
 amount of reduced stock. Therefore where a person has bound him- 
 self by a covenant or bond to transfer to trustees a certain sum in a 
 particular stock, and the stock in question previously to the time of 
 making the transfer is reduced by act of parliament, the trustees 
 may be compelled to accept the reduced stock in satisfaction of the 
 settlor's engagement.(A) By the late act for the reduction of the 
 three-and-a-half-per-cent. stock *(7 Vict. c. 4, s. 9), trustees, 
 L J of stock, or one of them on behalf of the others, are empow- 
 ered to assent to the reduction under the act, and are indemnified 
 for so doing. 
 
 Where stock, in which trust-moneys are invested, is reduced by act 
 of parliament, all the persons beneficially interested, including an- 
 nuitants for life, as well as persons entitled to the corpus of the fund, 
 must bear their portion of the loss equally.(Z) 
 
 Where the trust property consists of bank or India stock, or stock 
 in the foreign funds, and the trust authorizes the continuance of such 
 investments, the same rules of management prevail as those concern- 
 ing stock in the British funds. 
 
 Any extraordinary lonus on bank or other stock, which is settled 
 in trust for one for life with remainder over, must not be paid over 
 to the tenant for life, but it must be treated as capital, and invested 
 by the trustees, and the dividends only paid to the cestui que trust 
 for life.(c)> 
 
 (h) See Wright 1J. Lord Dorchester, 3 (Z) Att.-Gen.i). Poulden, 8 Jurist, 611; 
 
 Rubs. 49, n. [3 Hare, 555.] 
 
 (i) Ante, Pt. I. Div. III. ch. II. Sect. (c) Brander v. Brander, 4 Ves. 890; 
 
 2, and Pt. III. Ch. IV. Paris v. Paris, 10 Ves. 185; Clayton v. 
 
 (k) Sheffield v. Earl of Coventry, 2 Gresham, lb. 288 ; Witts v. Steers, 13 
 
 R. & M. 317; Milward v. Milward, 2 Ves. 363. 
 
 M. &K. 311. ' 
 
 ' See ante, note to page 386. 
 
OF TRUSTEES OF CHOSES IN ACTION. 649 
 
 Trustees in whose name the shares of any canal, railway, or other 
 company are standing, are primarily liable to the company for the 
 calls upon those shares, as well as the other expenses which the 
 shareholders are bound to pay. But they are of course entitled to 
 claim from their cestui que trusts, and to retain out of the trust- 
 moneys in their hands, any payments which they may have been 
 compelled to make in consequence of this liability. (ci) 
 
 A trustee of stock will be allowed in his accounts the usual pay- 
 ment of one-sixteenth per cent, which is charged by a stock-broker 
 for identifying him at the Bank, on making the transfer of the fund 
 to the person beneficially entitled, (e) 
 
 XIV. — OF TRUSTEES OF CHOSES IN ACTION. 
 
 Trusts are frequenty declared of choses in action, such as bonds, 
 covenants, policies of assurance, or simple contract debts, and other 
 property of that description, which is not at the moment in actual 
 and tangible existence, and which can be compulsorily realized only 
 by suit or action. 
 
 In these cases the debt or thing in action may either be created by 
 the settlement itself — as in those cases where the settlor binds him- 
 self by covenant or bond to pay the trustees a certain sum of money, 
 or do some other act, — or it may be actually in existence and vested 
 in the settlor previously to the creation of the trust, and may be 
 transferred by him with all the rights and remedies for enforcing it 
 to the trustees — as where a debt or policy of insurance is assigned to 
 trustees to hold on the trusts declared. In the former case the trus- 
 tees take the legal interest, and at the proper time they will be bound 
 to take such legal proceedings, as may be requisite for enforcing pay- 
 ment or performance in their own names ;(1) in *the latter r^AA^-i 
 case the assignment gives them only an equitable title, and 
 all proceedings at law must be instituted by them in the name of the 
 assignor.' Where a testator being entitled to choses in action be- 
 
 » 
 (d) Preston i). Guyon, 10 Law Journ. (e) Jones «. Powell, 6 Beav. 488; vide 
 N. S., Chanc. 72. post, [Allowances,] p. 570, &g. 
 
 (1) Where a settlor enters into a covenant with a trustee for the benefit of a 
 third person, the cestui que trust cannot even in equity institute a suit against the 
 covenantor for a specific performance without making the trustee a party. Cooke 
 V. Cooke, 2 Vern. 36; Cope v. Parry, 2 J. & W. 538. 
 
 ■ See notes to Rowi). Dawson, 2 Lead. Cas.Eq.pt. ii. 210, &c. (1st Am. Ed.), as 
 to the effect of the assignment of choses in action. Trustees substituted by the 
 court cannot sue at law in their own names, on a note payable to, or a judgment 
 recovered by, the original trustee. IngersoU v. Cooper, 5 Blackf. 426 ; Davant 
 V. Guerard, 1 Spear's Law R. 242. 
 
650 OF TRUSTEES OF CHOSES IN ACTION, 
 
 queaths them by his will to trustees, and appoints the same persons 
 his executors, the legal title will of course vest in the trustees upon 
 the testator's death by virtue of their appointment as executors^(/) 
 
 It is the duty of the trustees in all these cases to take every ne- 
 cessary step by suit or action or otherwise, for realizing the eJiose in 
 action at the time contemplated by the trust. And if the fund be 
 lost from their neglect of this duty, they will be held personally re- 
 sponsible to their cestui que trusts for the loss, although they acted 
 without any improper motive. (^) And it is not sufficient for the trus- 
 tee merely to apply to the debtor for payment, but it is his duty to 
 bring an action, if necessary, for the recovery of the amount.(Ay 
 
 However, where covenants or bonds are entered into by a settlor 
 with trustees, it seems that the ability of the settlor to discharge 
 these engagements, will be the measure of the responsibility of the 
 trustees, if the sum be lost by their neglect to put in force the se- 
 curity. Thus in a recent case A. on his marriage with B. covenanted 
 with a trustee to pay 10,000?. on Martinmas-day, 1824, upon trust 
 for A. for life, with remainder to B. for life, and then for the chil- 
 dren of the marriage. A. died without having paid any part of the 
 10,000?., and a suit was instituted by B. against the trustee to com- 
 pel him personally to pay the 10,000. The cause was heard before 
 Lord Cottenham, who made a decree referring it to the Master to 
 inquire, whether A. had been of ability to pay the 10,000?. or any 
 part thereof during the period intervening between Martinmas, 1824 
 and his death, or during any part of that period. The Master found 
 that A. was of ability to have paid 4,200?. between 1824 and 1832, 
 and that he was not able to pay anything after 1832 ; and on the 
 hearing on further directions before Vice-Chancellor Knight Bruce, 
 
 (/) Caney v. Bond, 6 Beav. 486. 486; Rogers v. Vasey, V. C. K. Bruce, 
 
 (g) Cafirey v. Darby, 6 Ves. 488 ; 27th Jan. 1845, MS. [Cross v. Pelrie, 
 
 Mucklow V. Fuller, Jac. 198 ; Powell ti. 10 B. Monr. 413.] 
 
 Evans, 5 Ves. 839; Tebbs v. Carpenter, (A) Lowson v. Copeland, 2 Bro. C. C. 
 
 1 Mad. 290; Lewson v. Copeland, 2 156. [See Wolfe v. Washburae, 6 
 
 Bro. C. C. 156; Caney v. Bond, 12 Law Cowen, 261, that dissent of cestui que 
 
 Journ. N. S. Chanc. 484 ; S. C. 6 Beav. ii-ust immaterial at law.] 
 
 ■ In Waring v. Darnall, 10 G. & J. 127, it was held that there was no peremp- 
 tory obligation upon a trustee (especially if acting with the knowledge and ap- 
 probation of a large portion of the parties interested) to sue upon a bond passed 
 to him as trustee, the very month or year it becomes due. A due regard to the 
 ultimate security of the debt, might require him (it was said) to indulge the 
 debtor; and if, contrary to a reasonable expectation, any portion of the debt were 
 lost, in the exercise of a fair discretion, equity would not compel him to make 
 good the loss. So in Hester v. Wilkinson, 6 Humph. 215, where a trustee re- 
 siding in another State, delayed bringing suit for the recovery of a negro, part of 
 the trust property, which had been illegally levied on, till the cause of action was 
 barred by the statute, was not held responsible for the value of the slave. 
 
OF TRUSTEES OV CHOSES IN ACTION. 651 
 
 the defendant, the trustee, was ordered to pay the sum of 4,200^. 
 into court.(j) 
 
 It will be equally the duty of the trustees to realize the debt, which 
 is the subject of the trust, although the person by whom it is owing 
 is himself one of the trustees ; and the others will be responsible to 
 the cestui que trusts for neglecting to enforce the payment in such 
 a case.(^) 
 
 And it seems, that the duty of realizing such securities will be pe- 
 culiarly imperative, where the debt which is the subject of the trust, 
 is payable in instalments, in which case the trustees will not ^ be jus- 
 tified in showing much indulgence to the debtor on the non-payment 
 of any instalment. (Z) 
 
 However, if a discretion be left to the trustee, and in the bona fide 
 exercise of that discretion he delay the realization of the property, 
 the court will not fix him personally with the loss thus occasioned.(ni) 
 
 *A trustee who brings an action at law for the recovery of ^^ . .q^ 
 a cTiose in action, or whose name is used for that purpose, is •- -* 
 entitled to be indemnified by his cestui que trust against the costs ; 
 and a court of equity, on the application of thei trustee, will restrain 
 the cestui que trust from proceeding in the action, until he has given 
 the required security for the costs, (n) 
 
 Where the trust property consists of an existing chose in action, 
 such as a bond or other debt, or a policy of assurance, which is as- 
 signed by the settlement to the trustees, it lias been decided, that the 
 title of the trustees, under the settlement, will not be perfect or valid 
 as against subsequent purchasers or incumbrancers, unless notice of 
 the settlement be given to the parties who are liable to the payment 
 of the debt — as to the obligor in the bond, or the insurers in the 
 policy.(o)^ It is therefore unquestionably the duty of trustees of 
 
 (i) Maitland v. Bateman, Nov. 1840, [Roden v. Murphy, 10 Alab. 804; Ins. 
 
 V. C. K. Bruce, Feb. 1844, S. C. 13 Law Co. v. Smith, 1 1 Penn. St. R. 120.] 
 
 Journ. N. S., 272; 8 Jurist, 926. (o) Wright v. Lord Dorchester, 3 
 
 (i) Mucklowu. Fuller, Jac. 198. [See Russ. 49, n.; Deare v. Hall, 3 Russ. 1; 
 
 ante, part IIL Div. 1, Ch. 1. Sect. 2.] Loveridge v. Cooper, Id. 30; FoTsteri). 
 
 (0 Caffrey v. Darby, 6 Ves. 495. Blackstone, 1 M. & K. 297; Timson v. 
 
 (m) Buxton v. Buxton, 1 M. & Cr. 80. Rarasbottom, 2 Keen, 35. [See Elty v. 
 
 (n) Annesleyi). Simeon, 4 Mad. 390. Bridges, 2 Y. & Coll. 486.] 
 
 ' Meux V. Bell, 1 Hare, 73; Stocks v. Dobson, 17 Jurist, 539. The rule is, 
 however, different on this point in most of the United States; and it is held that 
 the assignee's title is good against attaching creditors, or subsequent assignees 
 without notice : Sharpless v. Welsh, 4 Dall. 279; Corson v. Craig, 1 Wash. C. C. 
 424; U. S. V. Vaughan, 3 Binn. 374; Muir v. Schenck, 3 Hill (N. Y.), 228 ; Litde- 
 field V. Smith, 17 Maine, 327; Warren v. Copelin, 4 Metcalf, 594; Talbot v. 
 Cook, 7 Monroe, 438; contra, in Connecticut: Van Buskirk v. Ins. Co., 14 Conn. 
 145; see Am. Note to Row v. Dawson, 2 Lead. Cas. Eq. pt. ii. 236 (1st Ed.) But 
 
052 OF TRUSTEES OF CHOSES IN ACTION. 
 
 such interests to ascertain, that the required notice of the assignment 
 to them is duly given, (p) 
 
 It has been decided, that for this purpose notice to one of several 
 obligors, or to one member of an insurance society, operates as notice 
 to all.{c[) But a notice so limited will continue in operation only as 
 long as the party to whom it was given is living, and liable to con- 
 tribute to the payment, and the other obligors or insurers will not 
 afterwards be affected by the notice.(»*) A trustee, therefore, ought 
 not to dispense with a formal notice of the settlement of the bond or 
 policy to all the obligors or debtors, or to the insurance society 
 generally. 
 
 The trustees should also insist on having the bond or policy, or 
 other instrument, which is the subject of the trust, delivered up to 
 them. If through the omission of this precaution, or otherwise 
 through their neglect, the instrument get into the possession of the 
 settlor or tenant for life, who raises money upon it, and a suit thus 
 becomes necessary, the trustees would in all probability be deprived 
 of all their costs of the suit, even if they should not be decreed to 
 pay costs.(8) 
 
 However, where from the neglect of the trustees to obtain posses- 
 sion of the policy of assurance, which had been assigned to them 
 upon trust, or to give notice of the assignment at the ofiBce, the 
 settlor had subsequently sold the policy, and received the proceeds, 
 the trustees may maintain a suit against the settlor to recover the 
 value of the policy, and the decree will be against him with costs. (i) 
 
 An assignment of a chose in action in general confers no legal inte- 
 rest on the assignee, and can only be enforced by the interference 
 
 {p) See Jacob v. Lucas, 1 Beav. 436. (s) Evans v. Bicknell, 6 Ves. 174; 
 
 (g) Smith v. Smith, 2 Cr. & Mee. 31 ; Knye v. Moore, 1 S. & St. 65; Menx v. 
 
 Meux V. Bell, 1 Hare, 73; Re Styan, Bell, 1 Hare, 82, 98 ; Booth «. Lightfoot, 
 
 Phill. 155 ; Duncans. Chamberlayne, 11 L. C. 17th Jan., 1844. 
 
 Sim. 123. [See 4 Hare 446; 9 Beav. 323.] {t) Fortescue v. Barnett, 3 M. & K. 
 
 (r) Timeon v. Ramsbottom, 2 Keen, 36. 
 35; Meux v. Bell, 1 Hare, 88, 89. 
 
 in Fisher v. Knox, 13 Penn. St. R. 622, it was held that the assignee of a judg- 
 ment; who neglected to have it marked to his use on the docket, was to be post- 
 poned to a subsequent assignee for value. The principle above stated does not 
 apply to a bona fide payment by the debtor to the assignor, without notice, which, 
 of course, will discharge the debt. Reed v. Marble, 10 Paige, 409; Note to Row 
 V. Dawson, p. 235. So, in England, of a release, on a fair bona fide settlement: 
 Stocks V. Dawson, 17 Jurist, 539. If he pays after notice, however, he still 
 remains liable : Ibid., Brashear v. West, 7 Peters, S. C. 608 ; and the assignor is 
 a trustee of the money received : Ellis v. Amason, 2 Devereux's Eq. 273. This 
 doctrine was held, in Wilmot v. Pike, 5 Hare, 14, not to apply to equitable estates 
 in land, as equity of redemption; but see the remarks in Etty v. Bridges, 2 Y. & 
 Coll. 486. 
 
[*449] 
 
 OF TRUSTEES OF CHOSES IN ACTION. 653 
 
 of a court in equity. Hence, where the assignment is made without 
 any consideration, the court will not usually give any assistance to 
 the parties claiming under the trusts of such an instrument, upon the 
 general principle, that volunteers have no equity to come to the 
 court to perfect their title.(My *However, there may be an 
 exception to this general rule, where the chose in action is " 
 assignable hy agreement between the parties, though not at law, as in 
 the case of a policy of insurance, upon an assignment of which the 
 insurance society will recognise the title of the assignee.(a;)^ And if 
 the trustee have accepted and acted upon the trusts declared by any 
 voluntary instrument, the court will not afterwards suffer the settlor 
 to revoke or alter his previous disposition to the prejudice of the 
 trustee. (y) And it is clear, that as regards the rights and remedies 
 between the cestui que trust and his trustee, the fact of the creation 
 of the trust being voluntary will be wholly immaterial, if the relation 
 of trustee and cestui que trust have been actually created. (2) 
 
 An assignment of a policy of insurance in trust will carry with it 
 not only the original sum assured, but all bonuses, or other additions, 
 which may be afterwards made. And the trustees will be entitled to 
 receive all such additional sums, and will hold them on the same 
 trusts as the original sum, although they may not be expressly men- 
 tioned in the settlement, and although the declaration of the trusts 
 applied in terms to the original sum only.(a) 
 
 Where the party liable to the payment of the debt, or other chose 
 in action, becomes bankrupt or insolvent, it is the duty of the trustee 
 to prove against his estate for the amount. And where there are 
 several trustees, they must all join in making the proof,(6) unless an 
 order be obtained for one of them to prove, (c) The concurrence of 
 the cestui que trusts in the proof, is in general also necessary, for the 
 debt may have been paid to the cestui que trust, which might be a 
 
 (u) Anlrobus v. Smith, 12 Ves. 39; v. Jenkin, 1 Hare, 458; S. C, Phill. 
 
 Edwards v. Jones, 1 M. & Cr. 226; 163. 
 
 Meek v. Ketdewell, 1 Hare, 474; but (2) Lechmere v. Earl of Carlislis, 3 
 
 see Sloans v. Cadogan, 2 Sugd. V. & P. P. Wms. 222; supra, Ft. I. Div. I. Ch. 
 
 Appendix, 26, 9th ed. ; CoUinson v. Pat- II. Sect. 5. 
 
 rick, 2 Keen, 123; vide supra, Pt. I. (a) Courtnay 1;. Ferrers, 1 Sim. 137; 
 
 Div. I. Ch. II. Sect. 5. Parker v. Both, 9 Sim. 388. 
 
 (z) Fortescue v. Barnett, 3 M. &K. (6) Ex parte Rigby, 19 Ves. 463; 2 
 
 36; Edwards v. Jones, 1 M. & Cr. 239; Rose, 224; Burridge v. Row, 1 N. C. 
 
 Bed vide Ward v. Audland, -stated su- C. 183, 583 ; 8 Jurist, 299. 
 
 pra, p. 89, n. (1.) (c) Ex parte Smith, 1 Deac. 385; 2 
 
 (2/) Rycroft i;. Christy, 3 Beav. 238 ; M. & A. 536; Ex parte Phillips, 2 
 
 see Hinde v. Blake, Id. 234 ; M'Fadden Deac. 334. 
 
 ' Kennedy v. Ware, 1 Barr, 273 ; and see the notes, ante, page 83, 84. 
 ' See note, ante, page 88. 
 
654 OF TBUSTEES FOR 
 
 good dischai'ge to the debtor.(cZ) But where the whole legal interest 
 is vested in the trustee, and the cestui que trusts are infants, or 
 otherwise incapacitated from any binding act, the trustee may prove 
 alone. (e) In a proof by trustees, the instrument creating the trust 
 should be exhibited.(/) 
 
 Where a trustee of a chose in action, such as a recognisance, re- 
 leases it without consideration, he will be decreed in equity to replace 
 the principal with interest. (^)' But it has been held, that a trustee 
 ■ will be justified in releasing a debt, if such a proceeding be for the 
 benefit of the trust. As where a trustee released an insolvent tenant 
 from the arrears of rent, in order to get him to give up possession of 
 the estate. (7i) 
 
 XV. — OF TRUSTEES FOR CHARITABLE OR PUBLIC PURPOSES. 
 
 The rules of construction applicable to trusts for charitable pur- 
 poses, difi"er materially in many respects from those respecting ordi- 
 nary trusts, and there are also important distinctions as to the nature 
 and extent of *the jurisdiction of the Court of Chancery in 
 L -• enforcing or controlling the execution of these trusts.* 
 
 It has been stated in a previous chapter,(«) that where the object of 
 a testator is charity, a far less accurate and definite declaration of 
 trust will sufiice, than is requisite in other cases. Lord Eldon ob- 
 served in a modern case,(^) " neither is there any doubt, that the 
 same words in a will when applied to the case of individuals, 
 may receive a very different rule of construction from that which 
 would govern them, if applied to the case of charity. If I give my 
 property to such person as I shall hereafter name to be my executor, 
 and afterwards appoint no executor ; or if having appointed an ex- 
 ecutor, he dies in my lifetime, and I appoint no other to supply his 
 place, in either of these cases, as to individuals, the testator must be 
 held intestate, and his next of kin will take the estate. But to give 
 
 {d) Ex parte Dubois, 1 Cox, 310; (fe) Blue u. Marshall, 3 P. Wms. 381. 
 
 Beardraore v. Cuttenden, Cooke, 211 ; [See Walker v. Brungard, 13 S. & M. 
 
 Ex parte Herbert, 2 Gl. & G. 161 ; Ex 725, 767 ; Allen v. Randolph, 4 J. C. E. 
 
 parte Green, 2 Deac. & Ch. 116. 693.] 
 
 (e) Ex parte Dubois, 1 Cox, 312. (t) Ante, p. 131. 
 
 (/) Green, 149. \k) Mills v. Farmer, 1 Mer. 55, 94. 
 
 (g) Jevon V. Bush, 1 Vern. 342. 
 
 'See ante, 274, note (1.) 
 
 * As to the doctrine of charitable uses in the United States, see ante, 79, note. 
 With regard to dedications of land to public or pious purposes, which seem to 
 be sustained even in those States where the doctrine of charitable uses has not 
 been adopted, see Beatty v. Kurtz, 2 Peters, 256; Cincinnati v. White, 6 Id. 566; 
 Hadden v. Chorn, 8 B. Monr. 78 ; Price v. Methodist Church, 4 Hammond, 542; 
 3 Kent's Coram. 433, 450. 
 
CHAKITABLB OR PUBLIC PURPOSES. 655 
 
 effect to a bequest in favor of charity, the court will in both instances 
 supply the place of an executor, and carry into eifect that, -which in 
 the case of individuals must have failed altogether. A third prin- 
 ciple, which it is now too late to call in question, is, that in all cases, 
 in which the testator has expressed an intention to give to charitable 
 purposes, if that intention is declared absolutely, and nothing is left 
 uncertain, but the mode in which it is to be carried into eifect, the 
 intention will be carried into execution by this court, which will then 
 supply the mode, which alone was left deficient. Again, in the case 
 of an individual, if I leave my estate to such person as my executor 
 shall name, and appoint no executor, or having appointed one, he 
 dies, and I neglect to supply his place with another, it is admitted, 
 that the bequest so given amounts to nothing. Yet it cannot be de- 
 nied that such a bequest to charity would indicate that general chari- 
 table intention, which, according to the rules of law, is suiBcient to 
 give it effect ; and that the court in such a case would assume the 
 office of the executor."(Z) 
 
 And in the previous case of Moggridge v. Thackwell,(m) the same 
 great Judge laid it down as proved by the authorities, " That if the 
 testator has manifested a general intention to give to charity, the 
 failure of the particular mode in which the charity is to be effectu- 
 ated, shall not destroy the charity : but if the substantial intention 
 is charity, the law will substitute another mode of devoting the pro- 
 perty to charitable purposes, though the formal intention as to the 
 mode cannot be accomplished. "(m) 
 
 In accordance with these principles, it has frequently been decided 
 that where a testator has sufficiently expressed his intention to dis- 
 pose of his estate in trust for charitable purposes generally, the 
 general purpose will be enforced by the court to the exclusion of 
 any claim of the next of kin to take under a resulting trust ; al- 
 though the particular purpose or mode of application is not declared 
 at all by the testator.(w) And the same rule prevails, although the 
 testator refers to some past or intended declaration of the particular 
 charity, which declaration is not made, or *cannot be disco- p^^ r-i-i 
 vered;(o) and although the selection of the objects of the "- ^ 
 charity and the mode of application are left to the discretion of the 
 trustees. And it is immaterial that the trustees refuse the gift, or 
 
 Q) Mills V. Farmer, 1 Mar. 94, 96 (o) Case, 2 Freem. 261 ; 7 Ves. 73, 
 
 (;n) Moggridge v. Thackwell, 7 Ves. and 1 Mer. 59 ; Att.-Gen. v. Syderfen, 1 
 
 69; ante, p. 130. Vem. 224; 7 Ves. 43, n.; Cook v. Dun- 
 
 (n) Att.-Gen. v. Mathews, 2 Lev. 167 ; kenfield, 2 Atk. 562, 567 ; Mills v. Far- 
 
 CliiFord v. Francis, 2 Freem. 330 ; Bay- mer, 1 Mer. 55 ; Commissioners of 
 
 lis V. Att.-Gen. 2 Atk. 339 ; Att.-Gen. v. Char. Donations v. Sullivan, 1 Dr. & W. 
 
 Herrick, Ambl. 212; Price v. Arch- 301 ; vide supra, p. 128. 
 
 bishop of Canterbury, 14 Ves. 371, 2; 
 
 vide supra, p. 128. 
 
656 
 
 OF TRUSTEES FOR 
 
 die, or that their appointment is revoked in the lifetime of the tes- 
 tator, causing a lapse of the bequest at law.(p)^ 
 
 The same construction will also be adopted, ■where a particular 
 charitable purpose is declared by the testator, which does not exhaust 
 the whole value of the estate •,{q) or where the particular trust can- 
 not be carried into effect, either for its uncertainty,(r)'' or its ille- 
 gality,(s) or for want of proper objects.(^) And in all these cases the 
 general intention of the testator in favor of charity will be effectu- 
 ated by the court, through a cy pres application of the fund.^ 
 
 However, this construction will not prevail, unless the testator has 
 
 (p) Att-Gen. v. Hickman, 2 Eq. Ca. 
 Abr. 193; D'Oyley v. Alt.-Gen. 2 Eq. 
 Ca. Abr. 194 ; 7 Ves. 58, n.; White v. 
 White, 1 Bro. C. C. 12 ; Moggridge v. 
 Thackwell, 1 Ves. Jun. 464 ; 7 Ves. 36; 
 Mills V. Farmer, 1 Mer. 55 ; Att.-Gen. 
 V. Glegg, 1 Atk. 356; Att-Gen. v. An- 
 drew, 3 Ves. 633. 
 
 (g) Thetford School case, 8 Co. 130; 
 Att.-Gen. v. Arnold, Show. P. C. 22; 
 Att.-Gen. v. Mayor of Coventry, 2 Vern. 
 327; Att.-Gen. «. Johnson, Ambl. 190; 
 Att.-Gen. v. Sparks, Id. 201 ; Att.-Gen. v. 
 Haberdashers' Company, 4 Bro. C. C. 
 103 ; Att.-Gen. v. Tonner, 2 Ves. jun. 1 ; 
 Att.-Gen. v. MinshuU, 4 Ves. 1 1 ; Att.- 
 Gen. V. Mayor of Bristol, 2 J. & W. 308 ; 
 Att.-Gen. i;. Cains Coll., 2 Keen, 150; 
 Att.-Gen. v. Catherine Hall, Jac. 381; 
 Att.-Gen. v. Drapers' Company, 4Beav. 
 67; Att.-Gen. v. Wansey, 15 Ves. 230 ; 
 Att.-Gen.«. Dixie, 2 M. & K. 342; Att.- 
 Gen. V. Merchant Venturers' Society, 5 
 Beav. 338. 
 
 (r) Att.-Gen. u. Mathews, 2 Lev. 167; 
 S. C. Finch, 245, and 7 Ves. 69, 70, 
 slated ; Moggridge v. Thackwell, 1 Ves. 
 jun. 464; 7 Ves. 36; Pieschell v. Paris, 
 
 2 S. & St. 384 ; Simon v. Barber, 5 Russ. 
 112; Bennett v. Hayter, 2 Beav. 81. 
 
 (s) Att.-Gen. v. Green, 2 Bro. C. C. 
 492; Da Costa v. De Paz, Ambl. 228; 
 2 Sw. 487, n.; Att.-Gen. v. Baxter, 1 
 Vern. 848 ; Cary v. Abbott, 7 Ves. 490; 
 Att.-Gen. v. Todd, 1 Keen, 803; Att.- 
 Gen. V. Bowyer, 3 Ves. 713; Widmore 
 V. Governors of Queen Anne's Bounty, 
 Ambl. 637 ; Att.-Gen. v. Guise, 2 Vera. 
 266; [S. C. Att.-Gen. v. Baliol Coll., 
 9 Mod. 407 ; Glasgow Coll. v. Att.-Gen., 
 1 H. L. Cas. 824. See Att.-Gen. v. Vint, 
 14 Jur. 324; Martin v. Margham, 14 
 Sim. 230.] 
 
 («) Att.-Gen. v. City of Ivondon, 3 Bro. 
 C. C. 17 1 ; Att.-Gen. v. Boultbee, 2 Ves. 
 jun. 380 ; Hayter v. Trego, 5 Russ. 113 ; 
 Att.-Gen. v. Ironmongers' Company, 2 
 M. & K. 576; S. C. 2 Beav. 373; Or. & 
 Ph. 208; Att.-Gen. v. Bishop of Lan- 
 dafr. 2 M. & K. 586, stated ; Att-Gen. v. 
 Gibson, 2 Beav. 317, n. ; Att.-Gen. ti. 
 Oglander, 3 Bro. C. C. 160 ; Martin i;. 
 Maugham, [14 Sim. 230; see Att-Gen. 
 V. Lawes, 8 Hare, 32 ;] vide supra, p. 
 128, et seq. 
 
 ' See Att.-Gen. v. Wallace, 7 B. Monr. 611; Pickering v. Shotwell, 10 Barr, 27. 
 
 ^ But where the amount of a fund to be appropriated to answer charity be- 
 quests is not specified, the whole will be void for uncertainty. Flint v. Warren, 
 15 Sim. 626. 
 
 ^ The cypres doctrine is not generally adopted in the United States. See ante, 
 note to page 79. It was, however, recognised in Baker v. Smith, 13 Metcalf, 41 ; 
 Burr's Ex'r v. Smith, 7 Verm. 287 {semble) ; Griffin v. Graham, 1 Hawks, 96, but 
 contra, McAuIey v. Wilson, 1 Dev. Eq. 276. In Att.-Gen. v. Wallace, 7 B. Monr. 
 611, it was held that if trustees for an indefinite charity refused to accept, or to ex- 
 ercise their discretion, the Court, at the instance of the Attorney-General, might 
 appoint new trustees, and direct a scheme; the statute of Elizabeth being held 
 to be in force in Kentucky. 
 
CHARITABLE OR PUBLIC PURPOSES. 657 
 
 shown an intention to give to charity generally ; and if the establish- 
 ment or benefit of a particular specified charity only be contemplated 
 by him, and that charity cannot take, the charitable bequests thus 
 failing will be suffered to devolve as in other cases of ineffectual dis- 
 positions of property by will.(M) The existence or non-existence of 
 such a general intention in favor of charity, must be gathered from 
 the entire will in every case, and it is difficult to lay down any general 
 rules of construction on this point ; these will best be collected from 
 a reference to the several decided cases, which are mentioned in the 
 note below, (a;) 
 
 We will now proceed to consider what are proper " charitable" ob- 
 jects, within the legal acceptation of the term. 
 
 *The stat. 43 Eliz. c. 4, usually known as the Statute of po^.-n-, 
 Charitable Uses, has long been regarded as having fixed the L J 
 standard of what is to be deemed a good charitable purpose ; and no 
 trust will be established by the court as charitable, unless it be for 
 some of the purposes which are enumerated in that statute, or which 
 by analogy comes within its spirit and intendment. (^) 
 
 It may be premised, however, that a gift for " charity" or " cha- 
 ritable purposes," generally, without adding more;(s) or for the 
 benefit of the "poor,"(a) or "indigent, "(6) is a sufficient charitable 
 purpose. As is a trust for " such religious and charitable pur- 
 poses" as the trustees may think proper, (c) And so a direction to 
 apply the property, " having regard to the glory of God in the 
 spiritual welfare of his creatures," is a religious, and therefore a 
 charitable, trust, (d) 
 
 The uses enumerated in the' preamble of the statute as charitable 
 are, gifts, devises, &c., for the relief of aged, impotent, and poor 
 people ; for maintenance of sick and maimed soldiers and mariners ; 
 for schools of learning, free schools, and scholars of universities ; for 
 
 (it) Vide supra, Pt. I. Div. II. Ch.I. Eq. Jur. § 1155; Morice v. Bishop ot 
 
 Sect. 3, page 120. Durham, 9 Ves. 405. [See 1 Spence, 
 
 (i) Att.-Gen. v. Bishop of Oxford, 1 Eq. 587.] 
 
 Bro. C. C. 444, n.; S. C. 4 Ves. 431; (2) Clifford v. Francis, 2 Freem. 
 
 Att.-Gen. jj. Goulding, 2 Bro. C.C. 427; 330 ; Att.-Gen. v. Syderfen, 1 Vern. 
 
 Grieves v. Case, 4 Bro.C. C. 67; 1 Ves. 224; 7 Ves. 43, n. ; Att.-Gen. v. Her- 
 
 jun. 548; Att.-Gen. u. Whitchurch, 3 rick, Ambl. 713 ; Moggridge «. Thack- 
 
 Ves. 141; Corbyn v. French, 4 Ves. well, 7 Ves. 36; Mills v. Farmer,! 
 
 418; Att.-Gen. v. Davies, 9 Ves. 535; Mar. 55; Legge v. Asgill, T. & R. 
 
 Att.-Gen. v. Hinxman, 2 J. & W. 270; 265, n. 
 
 De Themines v. De Bonneval, 5 Russ. (a) Nash v. Morley, 5 Beav. 177. 
 
 288 ; West v. Shuttleworth, 2 M. & K. (6) Kendall v. Granger, 5 Beav. 300, 
 
 684, 698; Att.-Gen. v. Grocers' Cora- 303. 
 
 pany, 12 LawJourn. N.S., Chanc. 196; (c) BakeriJ. Sutton, 1 Keen, 224. 
 
 [6 Beav. 526.] (d) Cams v. Townsend, 13 Xaw 
 
 (y) 2 Rop. Legs. HI, et seq. ; 2 Story Journ. N. S., Chanc. 169. 
 
 42 
 
658 OF TRUSTEES FOR 
 
 repairs of bridges, ports, havens, causeways, churches, sea banks, and 
 highways ; for education and preferment of orphans ; for or towards the 
 relief, stock, or maintenance for houses of correction ; for marriages of 
 poor maids ; for supportation, aid, and help of young tradesmen, handi- 
 craftsmen, and persons decayed ; for relief or redemption of prison- 
 ers or captives ; and for aid or ease of any poor inhabitants concern- 
 ing payments of fifteenths, setting out of soldiers, and other taxes.(ey 
 Besides the above, purposes of a similar nature have been deter- 
 mined to be charitable uses. Thus, gifts for the difiusing the Pro- 
 testant tenets of the Christian religion, and promoting public wor- 
 ship according to those tenets, and for providing for its ministers — 
 for instance, bequests for the advancement of the Christian religion 
 among infidels ;(/) for the augmentation of poor vicarages ;(^) for 
 the building of a church(A) or erecting an organ gallery ;(i) for the 
 paying off of an incumbrance on a licensed meeting-house ;[k) the 
 repairing parsonage-houses ;{l) the support of a preacher of a cer- 
 tain chapel ;(to) or of dissenting ministers in England ;(m) or for the 
 vicar or curate of a certain place for preaching an annual sermon on 
 a certain day ;(o) or to the singers sitting in the gallery of a certain 
 church, to be paid on a certain day;(p) to the clerk of *a 
 L J parish to keep the chimes of a church in good repair to play 
 certain psalms •,{q) for the support of a burial ground,(r) have all 
 been held to be charitable purposes. So also, gifts for the promot- 
 ing public works for the convenience or benefit of the public, or of 
 the inhabitants of a particular place, are considered as charitable 
 uses. For instance, a gift for the improvement or benefit of a city ;(«) 
 
 (e) 2 Rop. Legs. Ill; 2 Story, Eq. (n) Waller v. Childs, Ambl. 524; 
 
 Jur. § 1159. Att.-Gen. v. Hinckman, 2Eq. Abr. 193; 
 
 (/) Att.-Gen. v. Coll. of William & West v. Shuttleworth, 2 M. & K. 696. 
 Mary, 1 Ves. juu. 245. (o) Sorresby v. Hollins, Highmore, 
 
 (g-) Widmore v. WoodrofFe, Ambl. 174; Turner ■«. Ogden, 1 Cox, 316. 
 636. (p) Ibid. 
 
 Qi) Alt.-Gen. v. Ruper, 2 P. Wras. (g) Ibid. 
 125; Att.-Gen. v. Bishop of Oxford, 1 (r) Doe v. Pitcher, 6 Taunt. 363. 
 Bro. C. C. 444, n. (s) Howse v. Chapman, 34 Ves. 542; 
 
 (i) Adnam v. Cole, 6 Beav. 353. Att.-Gen. v. Brown, 1 Swanst. 265; 
 
 {k) Corbyn v. French, 4 Ves. 418, Att.-Gen. v. Heelis, 2 S. & St. 67; Att.- 
 
 427. Gen. v. Corporation of Dublin, 1 Bligh. 
 
 {I) Att.-Gen. v. Bishop of Chester, 1 N. S. 337 ; Att.-Gen. v. Mayor of Car- 
 
 Bro. C. C. 444. lisle, 2 Sim. 437; Att.-Gen. v. Corpora- 
 
 (m) Grieves i;. Case, 4 Bro. C. C. 67; tion of Shrewsbury, 6 Beav. 220. [See 
 
 S. C. 1 Ves. jun. 548 ; Att.-Gen. v. ante, 133 note.] 
 Pearson, 3 Mer. 353, 409. 
 
 ' In Pennsylvania, the Statute of Elizabeth not being directly in force, the court 
 is not confined, in its application of the rules with regard to charitable uses, to 
 the objects enumerated in the preamble to that statute. Witman v. Lex, 17 S. & 
 R. 88 ; Wright v. Linn, 9 Barr, 435. 
 
CHARITABLE OR PUBLIC PURPOSES. 659 
 
 a sum of money to be applied in forming works for supplying the 
 inhabitants of a town with spring water ;(<) or for the support of a 
 public botanical garden,(M) have been supported as charitable. As 
 have also gifts to promote the education or the relief of the poor ; 
 for establishing a school •,{x) for erecting a small school-house and a 
 house for the master ;(?/) and bequests to the poor inhabitants ;(s) 
 or to the widows and children of seamen belonging to a town ;(a) or 
 to the widow and orphans ;(6) or to the poor inhabitants of a 
 parish ;(c) or for the support of hospitals •,{d) or to establish a life- 
 boat ;(e) or for the benefit of the British Museum. (/)* 
 
 In a modern case, where the question of what would constitute a 
 charitable purpose was fully discussed, Sir J. Leach, V. C, said that 
 he was of opinion " that funds supplied from the gift of the crown, 
 or from the gift of the legislature, or from private gift, for any legal 
 public or general purpose, are charitable funds to be administered 
 by courts of equity. And it is not material that the particular 
 public or general purpose is not expressed in the Statute of Eliza- 
 beth, if it come within the equity of that statute. Thus a gift to 
 
 (0 Jones V. Williams, Ambl. 656. (6) Att.-Gen. v. Comber, 2 S. & St. 
 
 [See Att.-Gen. v. Plymouth, 9 Beav. 93. 
 
 67.] (c) Att.-Gen. v. Clarke, Ambl. 422; 
 
 (u) Townley v. Bedwell, 6 Ves. 194. Att.-Gen. v. BuUes, Jac. 407 ; Att.-Gen. 
 
 Ix) Att.-Gen. v. Williams, 4 Bro. C. v. Ward, 3 Ves. jun. 228 ; Att.-Gen. v. 
 
 C. 525. [See ante, 133, note.] Pearoe, 2 Atk. 38; Att.-Gen. v. Free- 
 
 {y) Att.-Gen. v. Bowles, 2 Ves. 547; man, 1 Dan. 117. 
 
 Johnston v. Swann, 3 Mad. 457. (d) Masters v. Masters, 1 P. Wms. 
 
 (2) Att.-Gen . v. Corporation of Exeter, 420. 
 
 3 Rnss. 395; Att.-Gen. v. Wilkinson, 1 (c) Johnston •«. Swann, 3 Mad. 457. 
 
 Beav. 370; Bristow u. Brlstow, 5 Beav. (/) Trustees of British Museum v 
 
 289. White,^2 S. & St. 594. 
 
 (o) Powell V. Att.-Gen. 3 Mer. 48. 
 [See McCoU v. Atherton, 12 Jur. 1042.] 
 
 ' The following have been recently held valid gifts to charity, in England : 
 a bequest " to the Queen's Chancellor of the Exchequer for the time being, for the 
 benefit and advantage of Great Britain ;" Nightingale v. Gouldbourn, 2 Phill. 
 594 ; a bequest to the commissioners for the reduction of the National Debt. 
 Ashton V. Lord Langdale, 4 Eng. L. & Eq. 80; "to the minister and members of 
 churches, holding particular doctrines ;?■' Att.-Gen. v. Lawes, 8 Hare, 32 ; to the 
 governors of a society, " for the increase and encouragement of good servants."' 
 Losoombe v. Wintringham, 13 Beav. 87 ; S. C. 7 Eng. L. & Eq. 164 ; " to be ap- 
 plied and appropriated in such manner as the trustees for the time being, &c., in 
 their uncontrolled discretion, may think proper and expedient, for the benefit and 
 advancement, and propagation of education and learning in every part of the 
 world, as far as circumstances would admit." Whicker v. Hume, 10 Eng. L. & 
 Eq. 218. But in Habershon v. Vardon, 7 Eng. L. & Eq. 228 ; a gift towards con- 
 tributions " for the political restoration of the Jews to Jerusalem," was held not 
 charitable ; though a gift towards a fund for the bishopric of Jerusalem, was 
 sustained. See in the United States, ante, page 133, in note. 
 
660 OF TRUSTEES FOR 
 
 maintain a preaching minister — a gift to build a session-house for a 
 county — a gift by parliament of a duty on coals imported into Lon- 
 don, for the purpose of rebuilding St. Paul's church after the Fire 
 of London — have all been held to be charitable uses within the equity 
 of the Statute of Elizabeth. "(^) So a trust to assist a literary per- 
 son in his pursuits is also a good charitable trust ; as is a trust to 
 found an essay on a subject of science. (A)^ 
 
 So where there is a trust for the benefit of poor " householders'' 
 or poor "relations;" although each individual object may be said 
 to be private, yet in the extensiveness of the benefit accruing from 
 such trusts they may very properly be called public charities, and 
 will be treated as 8uch.(«)^ 
 
 But there has been already occasion to observe that a trust for 
 "private" *charities cannot be enforced by the court as a 
 ■- J charitable purpose ;{k) and also that a direction to apply a 
 fund discretionarily in favor of objects of " benevolence and liberal- 
 ity" does not come within the technical meaning of the term " cha- 
 ritable. "(Z) Charity, said Sir W. Grant, in its widest sense denotes 
 all the good affections men ought to bear towards each other ; in its 
 more restricted and common sense, relief to the poor. In neither, of 
 these senses is it employed in the Court of Chancery.(9n) 
 
 So it has been held, that a gift for " schools of art " is not a cha- 
 ritable purpose. (n) 
 
 And in a very late case, it was held by Lord Langdale, M. R., 
 that a gift of a residue to trustees to be by them applied for the rehef 
 of domestic distress, assisting indigent but deserving individuals, or 
 
 {g) Att.-Gen. v. Helis, 2 S. & St. 67, (4) Ommaney v. Butcher, T. & R. 
 
 76. 270 ; Ellis v. Selby, 1 M. & Cr. 293; 
 
 Oi) Thompson v. Thompson, 1 Coll. Nash v. Morley, 5 Beav. 177; ante, Pt. 
 
 N. C. C. 395. [Pickering v. Shotwell, I. Div. II. Ch. I. Sect. 3. 
 
 10 Barr, 27 ; but see Bridges v. Hart- (I) Morice v. Bishop of Durham, 9 
 
 ley, U Jur. 683; 19 L. J. Ch. 416.] Ves. 399; S. C. 10 Ves. 522, and see 
 
 (i) Att.-Gen. v. Pearce, 2 Atk. 88; James ». Allen, 3 Mer. 17. [But see 
 
 White V. White, 7 Ves. 423; see Nash Witraan v. Lex, 17 S. & R. 193.] 
 
 V. Morley, 5 Beav. 177. [See Bull?;. (m) 9 Ves. 405; see ante, Pt. I. Div. 
 
 Bull, 8 Conn. 147; stated ante, note to I. Ch. II. Sect. 4, PI. III.; and Pt. I., 
 
 p. 68.] Div. II. Ch. I. Sect. 3. 
 
 (n) Duke, Char. Us. 128. 
 
 ' In Lowell's Appeal, 22 Pick. 215, a bequest "for the promotion of the moral, 
 intellectual, and physical instruction and education of the inhabitants"' of the city 
 of Boston, was held good as a charity. 
 
 ^ A bequest to a lodge of freemasons " for the good of the craft, or for the re- 
 lief of indigent and distressed worthy masons, their widows and orphans," was 
 held to be a charity in Duke v. Fuller, 9 New Hamp. 538 ; and not to fail on the 
 dissolution of the lodge; and see Vander Volgen v. Yates, 2 Barb. Ch. 290. But 
 as to Odd Fellows' lodges, see, contra, Babb v. Reid, 5 Rawle, 151. 
 
CHARITABLE OR PUBLIC PURPOSES. 661 
 
 encouraging undertakings of general utility in such mode and pro- 
 portions as their own discretion may suggest, was not such a cha- 
 ritable trust as could be enforced by the court ; for although the first 
 part of the trust might have been supported as a good charitable 
 purpose, owing to the use of the word "indigent," yet the latter 
 alternative in favor of undertakings of "general utility," rendered 
 the trust too indefinite. (o) 
 
 And it is settled, that a trust to present to a church on the nomi- 
 nation of the parishioners at large, is not of a public nature ; and 
 any question arising on such a trust must be brought before the court 
 by an ordinary suit, and not by an information by the Attorney-Ge- 
 neral, (p) 
 
 Moreover, in determining whether or not there is a proper cha- 
 ritable purpose, the source from whence the fund is derived, as well 
 as the object to which it is to be applied, must be attended to. The 
 fund must proceed from the gift or iounty either of the crown or 
 state, or some private person, otherwise it will not be charitable : 
 and therefore rates or assessment, levied under an act of parliament 
 by the inhabitants of a town on themselves for the improvement or 
 benefit of their town, are not charitable funds to be administered by 
 the court ; — for there is no gift or bounty in the creation of such a 
 fund.(y)' 
 
 It is clearly settled, that the court here has jurisdiction to enforce 
 the performance of a charitable trust created in this country, although 
 the object of a trust is a foreign charity ;(?•) although it will not in- 
 terfere to direct the application of the trust fund, where there is a 
 competent jurisdiction in the foreign country for that purpose. (s) 
 But it is to be observed, that a trust for a foreign charitable pur.pose 
 cannot be supported here, if it contravene the policy of the English 
 
 (o) Kendall v. Granger, 5 Beav. 300. S. C, 1 Ves. jun. 243 ; Att.-Gen. v. Le- 
 
 (p) Att.-Gen. v. Parker, 1 Ves. 43; pine, 19 Ves. 309; S. C, 2 Sw. 181 
 
 Att.-Gen. v. Newcombe, 14 Ves. 1, 6; Gospel Propagation Society u. Att.-Gen. 
 
 see Fearon v. Webb, 14 Ves. 19; Att.- 3 Russ. 142; Curtis v. Hutton, 14 Ves, 
 
 Gen.'U. Cuming, 2 N.C.C. 139, 149. 537; Mackintosh «. To wnsend, 16 Ves 
 
 (5) Att.-Gen. v. Heelis, 2 S. & St. 77. 330; Emeryu.Hill, 1 Russ.lll; Thomp- 
 
 [See Thomas v. EUmaker, 1 Pars. Eq. son v. Thompson, 8 Jurist, 639. [Bur- 
 
 107.] bank v. Whitney, 24 Pick. 153.] 
 
 (r) Oliphans v. Hendrie, 1 Bro. C. C. (s) Provost of Edinburgh ■;;. Aubery, 
 
 57 1 ; Campbell v. Radnor, lb. 17 1; Att.- Ambl. 236 ; Emery v. Hill, 1 Russ. Ill; 
 
 Gen. V. Bishop of Chester, lb. 444; Att.- Collyer v. Burnett. Taml. 79. 
 Gen. V. City of London, 3 Bro. C. C. 171; 
 
 ' Associations of individuals for general charitable or public purposes, are cha- 
 rities, and within the control of the court as such. Thomas d Elimaker, 1 Pars. 
 Eq. 108; Wright v. Linn, 9 Barr, 433; Penfield v. Sumner, 11 Verm. 296. But 
 it is otherwise with regard to associalions for mutual benevolence, as the Odd 
 Fellows' societies. Babb v. Reid, 5 Rawle, 151. 
 
662 OF TRUSTEES FOR 
 
 r*4551 ^^^' *'*'^°"g^ i* ™*y ^°^ *^^ illegal according to the laws of 
 the state where the charity is to be established. And on this 
 ground the court has declined to enforce trusts for the support of 
 foreign Roman Catholic establishments, before the recent act (2 & 3 
 Will. IV. c. 115) for the relief of Roman Catholics.(i;) 
 
 And trusts for charitable purposes in this country cannot be sup- 
 ported, if they are of an illegal character. And their illegality may 
 arise either from their being in contravention of the dbmmon law, or 
 of some statutory provision.^ Thus, gifts to superstitious purposes 
 are illegal and void by the general policy of law independently of 
 any statute. And gifts for the maintenance of persons to " pray for 
 the souls of the dead," or " to maintain perpetual obits, lamps," &c., 
 are superstitious ; and as such are void.(M) And before the passing 
 of the act 2 & 3 Will. IV. c. 115, trusts for the propagation of the 
 Roman Catholic faith were held to be void as superstitious. (a;) But 
 by that statute Roman Catholics are placed on the same footing as 
 Protestant Dissenters in this respect, and such gifts will consequently 
 now be supported ;(?/) and it has been decided, that that act is re- 
 trospective in its operation.(z) It has been also held, that a gift for 
 the advancement of the Jewish religion is illegal, (a) 
 
 By the statute 1 Edw. VI. c. 14, all gifts to the superstitious uses 
 
 U) De Garcia v. Lawson, 4 Ves. 434, v. Lawson, 4 Ve.s. 434, n. ; Smart v. Pru- 
 
 n.; Smart v. Prajean, 6 Ves. 560. jean, 6 Ves. 560. 
 
 («) Duke, Char. Us. 466 ; 2 Rop. Legs. (y) West v. Shuttleworlh, 2 M. & K. 
 
 113 ; 2 Jarra. Pow. Dev. 13. 684. 
 
 (x) Att.-Geri. v. Todd, 1 Keen, 803 ; (s) Bradshaw v. Tasker, 2 M. & K. 
 
 Cary v. Abbott, 7 Ves. 490 ; Att.-Gen. v. 221. 
 
 Power, 1 Ball & B. 145; De Themines (a) Da Costa v. De Paz, 2 Sw. 487, 
 
 V. De Bonne val, 5 Russ. 288 ; De Garcia n. ; sed vide Strauss v. Goldsmid, 8 Sim. 
 
 514. 
 
 'A charity, otherwise valid, will not be affected by the fact, that it tends to a 
 perpetuity, as that is involved in its very nature. Griffin v. Graham, 1 Hawks, 
 96 ; Inglis v. Sailors' Snug Harbor, 3 Pet. S. C. 99 ; State v. Gerard, 2 Ired. Eq. 
 210; Hillyard v. Miller, 10 Barr, 335. But in the last case it was held, that a 
 trust for accumulation, which might extend beyond the period allowed by law, 
 was void, although the fund thus to be created was directed to be ultimately ap- 
 plied to the foundation and support of a charity. In Christ's Hospital v. Grain- 
 ger, 1 Mac. & G. 460. 14 Jur. 339, however, it was held, that a contingent limi- 
 tation over from one charily to another, was not within the rule against perpetuities, 
 and therefore good. In the particular case, there was a bequest, in 1624, to the 
 corporation of Reading, to be applied to certain purposes, with a proviso, that if 
 the corporation should for one year neglect to observe the directions of the will, 
 the fund should be utterly void, and the property be transferred to the corpora- 
 tion of London, in trust for Christ's Hospital. After the lapse of over two hun- 
 dred years, a breach of the condition occurred ; and the gift over was sustained. 
 The case of Hillyard v. Miller, ut supr., has not been considered, in Pennsyl- 
 vania, as entirely satisfactory; and the distinction on which it is based is, cer- 
 tainly, not very broad. 
 
CHARITABLE OR PUBLIC PURPOSES. 663 
 
 there mentioned — viz., " towards or about the finding, maintenance, or 
 sustentation of any priest, of any anniversary or obit, lamp, light, or 
 lights, or other like thing" — devolve beneficially to the crown. (6) 
 But if the superstitious purpose be not within the terms of that 
 statute, but is void from the general illegality of its object, and the 
 gift has not been impressed ^ith a trust for charity generally, the 
 failure will create a resulting trust for the heir or next of kin of the 
 donor.(c)^ 
 
 If, however, the gift create a general trust for charity, the ille- 
 gality of the particular purpose, as being superstitious, will not affect 
 the validity of the general trust, and the duty of appropriating the 
 amount to other charitable purposes will devolve upon the crown. ((i) 
 
 A conveyance or devise of real estate in trust for a charitable or 
 public institution, being a corporation, is inoperative by the Statutes 
 of Mortmain, unless it be sanctioned by a license from the crown.(e)' 
 However, the corporation of Queen Anne's bounty is an exception 
 to this general rule, for by the stat. 43 Geo. III. c. 107, that insti- 
 tution is exempted from the operation of the Mortmain Acts. 
 
 Previously to the stat. 9 Geo. II. c. 36, there existed no legal re- 
 striction to the power of vesting real estate in trustees for such cha- 
 ritable purposes, or institutions, as were not of a corporate character. 
 And this power might have been exercised equally by deed or will. 
 But by that *act, all gifts by will of real estate, or any in- r*4cg-| 
 terest therein, in trust or for the benefit of any charitable 
 uses whatsoever, are made void ; as are voluntary conveyances inter 
 vivos for the same purposes, unless made by deed, indented and sealed 
 and delivered in the presence of two or more witnesses, twelve calen- 
 
 (6) Att.-Gen. v. Fishmongers' Com- {d) Da Costa v. De Paz, Ambl. 228 ; 
 pany, 2 Bear. 151. S. C, 2 Sw. 487, n. ; Gary v. Abbott, 7 
 
 (c) West V. Shuttleworth, 2 M. & K. Ves. 490; Westu. Shuttleworth, 2M. & 
 684; De Themines v. De Bonneval, 5 K. 697, 8; De Themines v. De Bonne- 
 Russ. 288; vide supra, p. 134. val, 5 Russ. 297; ante, p.,48. 
 
 (c) Co.Litt.99,a.; 1 Sand. Us. 339, n. 
 
 ' There are no uses which can be denominated superstitious in the United 
 States. Methodist Church v. Remington, 1 Watts, 218 ; Garsii. Wilhite, 2 Dana, 
 170. 
 
 2 As to the Statutes of Mortmain in the United States, see ante, 48, note. In 
 New Yorlc, in the recent cases of Ayres v. Methodist Church, 3 Sandf S. C. 369 ; 
 Andrew v. N. Y. Bible Soc, 4 Id. 178 ; Chittenden v. Chittenden, 1 Am. Law Reg. 
 538; it was held, that corporations, being exempted out of the statute of wills, 
 could not at law take by devise for any pious or charitable object foreign to the 
 purposes of their institution ; and that the statute of Elizabeth having been ex- 
 pressly repealed, and its principles not in force in that State (in which the court 
 differ from many previous decisions in New York : see ante page 79, in note), such 
 devises could not be sustained as charities; but that there would be a resulting 
 trust for the heir-at-law. 
 
664 OF TRUSTEES FOE 
 
 dar months before the death of the donor, and enrolled in the Court 
 of Chancery within six months after execution. By the 4th and 5th 
 sections, the two universities and their colleges,(/) and the colleges of 
 Eton, Winchester, and Westminster, are expressly exempted from the 
 operations of that act.^ 
 
 This statute has been determined to ificlude not only direct devises 
 of real estate to charitable uses, but also all such bequests, as in any 
 manner affect or relate to interests in real property. Thus bequests ' 
 of money to be laid out(l) in the purchase of lands,(^) as well as of 
 lands to be sold,(A) or of sums charged upon or to be raised by sale 
 or mortgage, or by any other means out of lands, (i) (including judg- 
 ment debts,(A) or the lien of a vendor for his purchase-money,(if)) as 
 also of .leaseholds or terms for years, (??i) money secured on mort- 
 
 (/) See 45 Geo. III. c. 101. Att. -Gen. i). Lord Weymouth, Ambl. 24; 
 
 (§■) Att.-Gen. v. Davies, 9 Ves. 545; Jackson v. Hurlock, Arabl. 487; Jones 
 
 Att.-Gen. v. Hartwell, Ambl. 451 ; S. C. v. Williams, Id. 651 ; Wright v. Roe, 1 
 
 2 Ed. 334; Att.-Gen. v. Bowles, 2 Ves. Bro. C. C. 61; Leacroft v. Maynard, 1 
 
 547; Widmore v. Woodroife, Ambl. Ves. jun. 279; White ■«. Evans, 4 Ves. 
 
 637; Grieves v. Case, 4 Bro. C. C. 67; 21 ; Baker v. Hall, 12 Ves. 497; Cnrrie 
 
 S. C. 2 Cox, 301 ; Middleton v. Clithe- v. Pye, 17 Ves. 462 ; Att.-Gen. v. Harley, 
 
 row, 3 Ves. 734. 5 Mad. 321 ; Cooke v. Stationers' Com- 
 
 Qi) Trustees of British Museum v. pany, 3 M. & K. 266. 
 
 White, 2 S. & St. 594; Durour v. Mot- (Jc) Collinson v. Pater, 2 R. & M. 344. 
 
 teux, 1 Ves. 320; Att.-Gen. ■;;. Lord (Z) Harrison j). Harrison, 1 R.& M. 71. 
 
 Weymouth, Ambl. 720; Curtis v. Hut- (m) Att.-Gen. v. Graves, Ambl. 155; 
 
 ton, 14 Ves. 53 ; Waite v. Webb, 6 Mad. Att.-Gen. v. Tomkins, Id. 216; Middle- 
 
 71;Gravenor.'U. Hallam, Ambl.643. [See ton v. Spicer, 1 Bro. C. C. 201; Paice«. 
 
 Wright V. Trustees, 1 Hoff. Ch. 202.] Archbishop of Canterbury, 14 Ves. 364; 
 
 (i) Arnold v. Chapman, 1 Ves. 108; Johnston v. Swann, 3 Mad. 457. 
 
 (1) But if the direction to invest in land be not imperative, but a discretion is 
 vested in the trustees to lay it out or not, it has been held not to come within the 
 statute. As where the money was to be laid out in land, or " otherwise.'" Soresby 
 V. Hollins, 9 Mod. 221; S. C, Ambl. 211, cited; Grimmelt v. Grimmelt, Ambl. 
 211; Curtis v. Hutton. 14 Ves. 537. But see English v. Orde, Highm. Mortm. 82; 
 Bridgm. Duke, Char. U.s. 432 ; and Kirkbank v. Hudson. 7 Price, 212; see Att.- 
 Gen. V. Godda'rd, T. & R. 348. 
 
 • The following decisions, since the publication of the text, may be referred 
 to, upon the construction of the Act of Geo. II.; and, amongst other things, as 
 what is to be considered real property within its provisions: Doe v. Harris, 16 
 M. & W. 517; Sparling?). Parker, 9 Beav. 450; Tomlinsoni). Tomlinson,Id. 459; 
 Smith V. Oliver, 11 Id. 481; Walker v. Milne, Id. 507; Trye v. Corporation of 
 Gloucester, 14 Id. 173 ; S. C, 6 Eng. L. & Eq, 73 ; Hilton ?;. Giraud, 1 DeG. & Sm. 
 183; Att.-Gen. u.Munro, 2 Id. 122; Att.-Gen. v. Gardner, Id. 102; Myers iJ.Perigal, 
 16 Sim. 533, contra, S. C. in Common Pleas, 14 Eng. L. & Eq. 229 ; Ashton v. Lord 
 Langdale, 4 Eng. L. & Eq. 80; Crafton v. Frith, 3 Id. 164 ; Whicker v. Hume, 
 10 Id. 218; LongstafF v. Rennison, 11 Id. 267; Alt.-Gen. u. Hull, 15 Id. 182; 
 Church Building Soc. v. Barlow, Id. 582; Att.-Gen. v. Ward, 6 Hare, 477. A 
 charity may be divisible, under the Mortmain Act, and will be upheld so far as 
 allowed by law. Crafton v. Frith, 3 Eng. L. & Eq. 164. 
 
CHARITABLE OR PUBLIC PURPOSES. 665 
 
 gage,(?i) or money to be applied in paying off incumbrances affecting 
 lands in mortmain, (o) have all been held to be void within the pro- 
 visions of the act. And the statute has also been held to apply to 
 money secured by turnpike tolls, or the bonds of turnpike commis- 
 sioners,(p) and to navigation shares,(g') and money secured upon 
 poor or county rates,(r) and also to a right of mooring ships in the 
 Thames under a lease from the crown. (s) So it is now settled, that 
 a bequest of money for the purpose of building a school-house, hos- 
 pital, or other building for a charitable purpose, is void; for the 
 direction to build, involves prima facie the purchase of land.(<) In 
 some of the *earlier cases, indeed, such bequests were held not p^ . r,,-, 
 to be within the statute, as it might be possible for the trus- *- -^ 
 tees in such cases to get a piece of ground given them, so as to 
 prevent the necessity of any purchase :(m) but these cases have been 
 overruled by the more modern authorities. 
 
 However, if the testator expressly declare that the money is not to 
 be applied to the purchase of land or erection of buildings, a bequest 
 to a school to be erected has been held good.(a;) And the presumption 
 that land is intended to be purchased for the purpose of building, 
 may be rebutted by evidence to disprove that intention. (?/) And so 
 the bequest will be good, if the testator clearly point to land already 
 in mortmain ; for a bequest to build upon or improve lands or build- 
 ings already in mortmain, is not within the statute.(2) And it has 
 been held, that a direction to trustees to provide a school-house, is not 
 void, for a building might be hired for the purpose. (a) Where a 
 testator creates a mixed fund of realty and personalty for payment 
 of debts and legacies, and gives several legacies, some being for 
 
 (n) Att.-Gen. v. Caldwell, Ambl. 635 ; bouin, 3 Russ. 456 ; Giblet v. Hobson, 5 
 
 Att.-Gen.r. Meyrick, 2 Ves. 44; Ho^es Sim. 651 ; 3 M. & K. 517; Mather v. 
 
 V. Chapman, 4 Ves. 542; Att.-Gen. v. Scott, 2 Keen, 172. 
 
 Munby, 1 Mer. 327 ; Johnston 1). Swann, (ti) Vaughan v. Farrer. 2 Ves. 182; 
 
 3 Mad. 457. Att.-Gen. ■;;. Bowles, Id. 547. 
 
 (o) .Corbyn v. French, 4 Ves. 418 ; (a:) Henshaw v. Atkinson, 3 Mad. 
 
 Waterhouse v. Holmes, 2 Sim. 162; 306. 
 
 Davies v. Hopkins, 2 Beav. 276. (y) Giblet v. Hobson, 3 M. & K. 517. 
 
 (p)Knappu.Williams, 4Ves. 430,n. (2) Glubb v. Att.-Gen., Ambl. 373; 
 
 (5) Howes V. Chapman, 4 Ves. 542. Harris v. Barnes, Id. 651 ; Brodie v. Duke 
 
 (r) Finch v. Squire, 10 Ves. 41. of Chandos, 1 Bro. C. C. 444, n.; Att.- 
 
 («) Negus V. Coulter, Ambl. 367. Gen. v. Parsons, 8 Ves. 186; Att.-Gen. 
 
 (t) Att.-Gen. v. Tyndall, Ambl. 614; v. Munby, 1 Mer. 327 ; Foy v. Foy, 1 
 
 2 Ed. 207; Pelham v. Anderson, 1 Ed. Co.ic, 163; Ingleby v. Dobson, 4 Russ. 
 
 296; Att.-Gen. u. Hyde, Ambl. 751; 1 342. [TryeiJ. Corporation of Glouce.ster, 
 
 Bro. C. C. 444, n.; Foy v. Foy, 1 Cox, 6 Engl. L. & Eq. 73; Crafton v. Frith, 3 
 
 163 ; Att.-Gen. v. Nash, 3 Bro. C. C. 588; Engl. L. & Eq. 164.] 
 
 Att.-Gen. v. Whitchurch, 3 Ves. 144; (a) Johnston v. Swann, 3 Mad. 457; 
 
 Chapman v. Brown, 6 Ves. 604 ; Att.- and see Att.-Gen. v. Williams, 4 Bro. C. 
 
 Gen. V. Parsons, 8 Ves. 186; Att.-Gen. C. 426. 
 V. Davies, 9 Ves. 535; Prilchard v. Ar- 
 
666 OF TRUSTEES FOR 
 
 charitable purposes, and adds a declaration, that none of the charity 
 legacies are to be paid out of the produce of the real estate, but that 
 they are to be paid exclusively out of the personalty, such a general 
 direction will not suffice to throw the whole of the charity legacies 
 exclusively on the personal estate, but a proportionate part of them 
 will still remain charged on the realty, and will be consequently void 
 to that extent. (J)' 
 
 It has been decided that copyhold lands are within the provisions 
 of this statute.(c) 
 
 The 6th section of the act expressly exempts dispositions of real or 
 personal estate in Scotland from its operation. (cZ) And it has been 
 decided that the act in question is local in its operation, and does 
 not extend to Ireland,(e) or to the West Indies, or other colonies.(/) 
 Still less could it apply to real property situated in foreign countries. 
 
 Bequests, therefore, of personal estate in aid of foreign charities, 
 will be supported, although the object of charitable application is of 
 the nature of real estate. But gifts of real estate in England, or any 
 interest therein, to a foreign charity, are within the mischief remedied 
 by the act, and are consequently void.(^) 
 
 It has been decided, that a policy of insurance is not within the 
 act, although the assets of the insurance company consist partially 
 of real estate. (A) And shares in the London "Gas Light and Coke 
 Company have also been held not to be within the act.(i) 
 r*458n *The exception in the act in favor of the universities and 
 colleges of Eton, Winchester, and Westminster, has been held 
 to apply only to gifts made to these societies henefieially, and not 
 where they are made trustees for other charitable purposes.(A) 
 
 (6) Sturge v. Dimsdale, 6 Beav. 462 ; (c) Campbell v. Lord Radnor, 1 Bro. 
 
 see Philaruhropic Society v. Kemp. 4 C. C. 271. 
 
 Beav. 581. [See the remarks on these (/) Att.-Gen. v- Stewart, 2 Mer. 143. 
 
 cases in Robinson v. Geldard, 12 Engl. [Whicker v. Hume, 10 Engl. L. & Eq. 
 
 L. & Eq. 64, by Lord St. Leonards.] 218.] 
 
 (c) Arnold v. Chapman, 1 Ves. 108; (g-) Curtis v. Hutton, 14 Ves. 537; 
 
 Henchman v. Att.-Gen., 2 S. & St. 498; Att.-Gen. v. Mill, 3 Russ. 328. 
 
 S. C, 3 M. & K. 262. Qi) March v. Att.-Gen., 5 Beav. 334. 
 
 {d) See M'Intosh v. Townsend, 16 (i) Thompson v. Thompson, 1 Coll. 
 
 Ves. 330; Oliphant v. Hendrie, 1 Bro. N. C. C. 381. 
 
 C. C. 570. (4) Att.-Gen. v. Munby, 1 Mer. 327. 
 
 ' But in Robinson v. Geldard, 12 Engl. L. & Eq. 64, before Lord St. Leonards, 
 overruling S. C, 3 De G. & Sm. 499, it was held, that where it appears from the 
 face of the will to be the intention of a testator, that a bequest to a charity shall 
 be paid out of the pure personalty, it amounts, in some respects, to a demonstra- 
 tive legacy, which will not abate, with general legacies, on the failure of assets. 
 See the remarks in this case on marshalling in favor of charities; and as to con- 
 version in favor of charities, so as to enable corporations (where excepted out 
 of the statute of will.s) to take, see Wright v. Trustees, Hoffm. Ch. 202. 
 
CHARITABLE OB PUBLIC PURPOSES. 667 
 
 A further exception to the operation of the statute is made by the 
 Church Building Acts,(Z) by which gifts for the building, repairing, 
 or providing of churches and chapels, and houses for the residence of 
 ministers, and also of churchyards and glebes, are rendered valid. 
 
 Another exception is created by the custom of London, which 
 enables freemen to devise lands within the city notwithstanding the 
 Statute of Mortmain. (wi) 
 
 And so it seems that a gift to or for the benefit of the Crown is 
 not within the operation of the statute. In Thellusson v. Woodford,(n) 
 a devise of the produce of real estate to be paid to the king for the 
 use of the sinking fund, was supported. But a gift to the British 
 Museum is not within the principle of this exception. (o) 
 
 Where any interest in real estate is conveyed by deed in trust for 
 a charitable purpose, the provisions in the act as to the execution and 
 enrolment of the conveyance, as well as to the donor's continuing to 
 live for a twelvemonth after the gift, must be strictly complied with, 
 or the disposition will be void.(^)(l) 
 
 There has been already occasion to consider at some length the 
 respective rights of the donee in trust on the one hand, and of the 
 heirs-at-law or next of kin or residuary legatee of the donor on the 
 other, to the benefit of a particular charitable gift, which is void 
 under the Statute of Mortmain.(5') 
 
 The nature of the expressions, by which a valid trust for charity 
 may be created, have also been discussed.(r) 
 
 As the court has adopted different rules of construction with re- 
 spect to charitable trusts, so it has a more complete and searching 
 jurisdiction for the supervision and control of the trustees. 
 
 Any question affecting a charitable trust may be brought before 
 the court by information in the name of the Attorney-General,^ or 
 
 {I) 43 Geo, III. c. 108 ; 58 Geo. III. o. (n) Thellusson v. Woodford, 4 Ves. 
 
 45 ; 59 G. III. c. 134; 3 G. IV. c. 72 ; 5 227. 
 
 Geo. IV. c. 103 ; 7 & 8 Geo. IV. c. 72 ; (o) British Museum v. White, 2 S. & 
 
 1 & 2 Will. IV. c. 38 & 45 ; 2 & 3 Will. St. 594. 
 
 IV. c. 61 ; 1 Vict. o. 75; 1 & 2 Vict. c. {p) Att.-Gen. v. Munby, 1 Mer. 327; 
 
 106 & 107; 2 & 3 Vict. c. 49; 3 & 4 Price v. Hathaway, 6 Mad. 304. 
 
 Vict. i;. 60. (5) Ante, this section ; et vide supra, 
 
 (m) Middletovifn v. Cater, 4 Bro. C. Pt. I. Div. II. Ch. I. Sect. 3. 
 
 C. 409. (r) Ibid. 
 
 (1) The Act 9 Geo. IV. c. 85, makes conveyances of land to charitable uses, 
 which were executed before that act, valid, notwithstanding the formalities re- 
 quired by the 9 Geo. II. c. 36, had not been observed, but the operation of this 
 act is only retrospective, and applies only to purchases for valuable consideration. 
 
 ■ See Att.-Gen. 1). Ward, 12 Jur. 807; and in the United States, Alt.-Gen. v. 
 Wallace, 7 B. Monr. 611; Going v. Emery, 16 Pick. 119; Parker v. May, 5 
 Gushing, 336; Duke v. Fuller, 9 N. H. 538. The Attorney-General's right to 
 proceed is not affected by the long acquiescence of the parties interested. Corpo- 
 ration of Newcastle v. Att.-Gen., 12 CI. & F. 402. 
 
OF TRUSTEES FOR 
 
 in some cases the proceedings may be by bill ; but in that case' the 
 Attorney- General must be made a party to the suit, and the court 
 will refuse to proceed in his absence, (s) 
 
 Where it is sought to administer or control an established charity 
 under the direction of the court, there must be an information by the 
 Attorney-General, who is entitled to the supervision and control of 
 r*4'iQl *^® proceedings : *and it is only where the question to be de- 
 cided is, whether there is a good creation of a charitable trust 
 or not, that a bill making the Attorney-General a defendant will be 
 entertained.' 
 
 However, it is to be observed, that if the trust be not for a charity 
 within the intent of the Statute of Charitable Uses, an information 
 by the Attorney-General will be improper. (^) 
 
 A summary jurisdiction to proceed by petition has also been con- 
 ferred on the court by more than one statute. The statute 52 Geo. 
 III. c. 101, usually known as Sir Samuel Romilly's Act, recites in 
 its preamble the expediency of providing a more summary remedy 
 in cases of breaches of trust created for charitable purposes, as well 
 as for the just administration of the same ; and in case of any breach 
 of such trusts, or whenever the direction or order of a court of equity 
 shall be deemed necessary for the administration of any such trust, 
 it enables any two or more persons to petition the Court of Chancery 
 or Exchequer, such petition to be heard and determined in a sum- 
 mary way ; and by the 2d section every such petition must be al- 
 lowed and certified by the Attorney or Solicitor-General." 
 
 (s) De Thernines v. De Bonneval. 5 Att.-Gen. v. Parker, 1 Ves. 43 ; Att.- 
 Russ. 288. Gen. v. Newcombe, 14 Ves. 1, 6; Att.- 
 
 (<) Att.-Gen. v. Hever, 2 Vern. 382 ; Gen. v. Cuming, 2 N. C. C. 139, 149. 
 
 ' There are many dicta and adjudications since the statute of the 43 Eliza- 
 beth, affirming the full jurisdiction of Chancery over charitable uses ab origine: 
 against which appears but the single dictum of Lord Loughborough, in the Attor- 
 ney-General V. Bowyer, 3 Ves. Jr. 726 b, that the Court of Chancery had not, prior 
 to the statute, any cognizance upon informations for the establishment of chari- 
 ties ; but that parties made out such oases as well as they could at law. And this 
 assertion of doctrine was not confined to proceedings by information in the name 
 of the Attorney-General, but extended to all cases of charitable uses; and it was 
 so applied in the case of the Baptist Association v. Hart's Executors, 4 Wheaton, 
 1. But in the great and very recent case in the Supreme Court of the United 
 States,— Vidal et al. v. The Citizens of Philadelphia et al., 2 Howard's Rep. 127, 
 it was shown, not only from reports of cases since the statute, but from the calen- 
 ■ dars of the proceedings in Chancery in the Tower of London, printed by direc- 
 tion of the Record Commission in 1827, that charhable uses might be enforced 
 in Chancery, upon the general jurisdiction of the court independently of the 
 statute of Elizabeth ; and that the jurisdiction had been acted on. not only sub- 
 sequent, but antecedent to that statute. — T. 
 " Upon the construction of this act see Re Hall's Charity, 14 Bear. 115; 15 
 
CHARITABLE OR PUBLIC PURPOSES. 669 
 
 By the Act of 59 Geo. III. c. 91, the provisions of which were 
 continued and extended by 2 Will. IV. c. 57, and are embodied in 
 the late act of 5 & 6 Will. IV. c. 71, the Attorney-General, on the 
 certificate of the commissioners of charities, is empowered to proceed 
 in the Court of Chancery, either in a summary way by petition, or by 
 information for the purpose of remedying any abuse in the manage- 
 ment of charities. 
 
 The 21st section of Sir Edw. Sugden's Act (1 Will. IV. c. 60) ex- 
 tends to trustees of charities all the provisions of that act, enabling 
 the court, upon application by petition, to direct conveyances to be 
 made in case of disability, &c., of the existing trustees ; those pro- 
 visions have been already considered at length in a previous chap- 
 ter. (m) The 23d section of the same act further empowers the court, 
 also upon petition, to appoint new trustees of charities in case of the 
 death of all the old trustees. And by the 3d section of 2 Will. IV. 
 c. 57, a petition for this purpose may be presented by the Attorney- 
 General. 
 
 The 71st section of the Municipal Corporations Act, 5 & 6 Will. 
 
 IV. c. 76,^ provides, that where any municipal corporation then ex- 
 isting, or any members thereof, shall be trustees of property for any 
 charitable purpose, the trust property shall remain vested in them 
 until the 1st of August, *1836, when their interest is to cease, r^^on-i 
 and the future administration of the trust is to be provided for 
 
 by the order of the Lord Chancellor. 
 
 The recent act, 3 & 4 Vict. c. 77,^ also confers extensive jurisdic- 
 tion on the court for controlling and reforming grammar schools ; 
 
 (u) Ante, Pt. I. Div. III. Ch. II.; Pt. II. Ch. IV. Sect. 3. 
 
 Jur. 740; Re Godmanchester Grammar School, 15 Jur. 833; Att. Gen. v. East 
 Retford Grammar School, 17 L.J. Ch. 450; Att.-Gen. v. Bristol, 14 Sim. 648 
 Att.-Gen. v. Earl of Devon, 15 Sim. 259; Att.-Gen. v. Earl of Stamford, I Phill. 737 
 Att.-Gen. v. Bovill, Id. 762; Re Shrewsbury Grammar School, 1 Mac. & G. 324 
 14 Jur. 259 ; Re Suir Island Charity, 3 Jones & Lat. 171 ; Re Butterwick Free 
 School, 6 Engl. L. & Eq. 104; Att.-Gen. v. Bishop of Worcester, 9 Id. 1. As to 
 costs, see Att.-Gen. v. Ironmongers' Co., 10 Beav. 194; Att.-Gen. v. Ward, 12 
 Jur. 807; James v. James, 11 Beav. 397 ; Solicitor-Gen. v. Bath, 13 Jur. 866. 
 
 ' As to this Act, see Re St. John's Hospital, 3 Mac. & G. 235; 15 Jur. 235; Re 
 Worcester Charities, 2 Phill. 284; Re Shrewsbury Charities, 1 Mac. & G. 84; 13 
 Jur. 20; Att.-Gen. v. Ludlow, 2 Phillips, 635; Att.-Gen. v. Corp. of Norwich, 9 
 Engl. L. & Eq. 93. 
 
 ' See, under this statute, called Sir Eardley Wilmot's Act, and generally as to 
 Grammar Schools, Re Fremington School, 10 Jur. 512 ; Att.-Gen. v. Earl of De- 
 von, 15 Sim. 193; Att.-Gen. u. Earl of Stamford, 16 Sim. 453; 1 Phill. 737; Att.- 
 Gen. V. Ludlow, 2 Phill. 685; Doe v. Willis, 2 Eng. L. & Eq. 356; but see Willis 
 
 V. Childs, Id. 4 1 ; S. C. 1 3 Beav. 117; Reg. v. Dean, &c., of Rochester, 6 Eng. L. & 
 Eq. 269 ; (see 7 Hare, 532 ; 1 3 Jar. pt. ii., 309 ;) Att.-Gen. v. Bishop of Worcester, 9 
 Eng. L. & Eq. 1. 
 
670 OF TKUSTEES FOS 
 
 and by the 21st section this jurisdiction may be, exercised on peti- 
 tion, according to the provisions of Sir Samuel Romilly's Act (52 
 Geo. III. c. 101). 
 
 There has been already occasion to consider at length the extent 
 and nature of the summary statutory jurisdiction of the court as 
 well as the mode in which it will be exercised. (a;) But it may be 
 here observed in addition, that the court will interfere on petition 
 only in cases of clear abuse of charity ; and if there should be any 
 adverse question as to the nature or object of the charitable trust, or 
 in what manner the breach of trust is to be taken advantage of;(w) 
 or as to the title to the charity estates ;(z) or as to the parties liable 
 for the breach of trust,(a) these are cases for an information and not 
 a petition under the statutory jurisdiction. 
 
 It is also to be remarked, that where the court has undertaken the 
 regulation of a charity, it will act without any actual complaint, 
 whenever any circumstance comes under its notice, which in its judg- 
 ment requires a remedy. (J) 
 
 Where there is a local visitor duly constituted, the internal regu- 
 lation and conduct of the charity will be under his exclusive juris- 
 diction, and the court will not interfere with him in the exercise of 
 that jurisdiction. (c)' But the due application of the revenues of a 
 charity is a trust, the strict performance of which will be enforced 
 by the court, notwithstanding the appointment and existence of a 
 visitor. And informations with that object have repeatedly been 
 entertained notwithstanding the objection, that the object was within 
 the cognizance of the visitor.((^) 
 
 The crown is the visitor of all corporations of royal foundation :(«) 
 and also where the heir of the founder cannot be discovered(/) or is 
 
 {x) Ante, Pt. II. Ch. IV. Sect. 3. Catherine Hall, Jac. 392; Att.-Gen. v. 
 
 (jj) Ludlow Corporation v. Green- Archbishop of York, 2 R. & M. 468. 
 
 house, 1 Bl. N. S. 17. (d) Att.-Gen. v. Corporation of Bed- 
 
 (z) Ex parte Rees, 3 V. & B. 10. ford, 2 Ves. 505 ; Att.-Gen. i). Foundling 
 
 (a) Ex parte Skinner, 2 Mer. 453; Re Hospital, 2 Ves. jun. 42; Att.-Gen. d. 
 
 St. Wenn's Charity, 2 S. & St. 66. Dixie, 13 Ves. 519; Re Berkhampstead 
 
 (6) Att.-Gen. v. Cooper's Company, School, 2 V. &B. 134; Att. -Gen. w. Earl 
 
 19 Ves. 194. of Clarendon, 17 Ves. 491. 
 
 (c) Att.-Gen. v. Price, 3 Atk. 108 ; (c) Case of Queen's College, Cam- 
 
 Alt.-Gen.'U.Middleton,2Ves. 327; Att.- bridge, Jac. 1; Co. Litt. 344, b; 1 Bl. 
 
 Gen. V. Smythes, 1 Keen, 239; S. C. 2 Comm. 481. 
 
 M. & Cr. 135 ; St. John's College, Cam- (/) Ex parte Wrangham, 2 Ves. jun. 
 
 bridge «. Todington, 1 Burr. 200; Att.- 609; Att.-Gen. «. Black, 11 Ves. 191; 
 
 Gen.i;. Lock, 3 Atk. 165; Att.-Gen. v. Att.-Gen. v. Clarendon, 17 Ves. 4, 98. 
 
 ' As to the rights of a visitor, and the powers of a Court of Chancery in such 
 case, see Att.-Gen. v. Magdalen College, 11 Jur. 681 ; Whistoni). Dean, &c., of 
 Rochester, 7 Hare, 532 ; Atty.-Gen. v. Dean, &c., of Rochester, 6 Eng. L. & Eq. 
 269 ; Att.-Gen. v. Browne's Hospital, 17 Sim. 137 ; Sanderson v. White, 18 Picker- 
 ing (Mass.), 332. 
 
CHARITABLE OR PUBLIC PURPOSES. 671 
 
 lunatic.(5') And this visitorial authority will be exercised through 
 the Keeper of the Great Seal, to whom the application must be made 
 by petition, and not by information or suit. 
 
 In the case of any doubt or difficulty in the administration of the 
 funds of a charity, the Court of Chancery is the proper tribunal to 
 which the trustees should have recourse in the first instance. And 
 if they apply to parliament without the sanction of the court, and 
 fail in obtaining their act, the court will not suffer the costs of the 
 unsuccessful application to be thrown on the funds of the charity :(A) 
 although it would be otherwise, *if the legislature had declared p^ .„-,-, 
 its approval of such an application by passing the act.(i) L J 
 
 It has been already seen, (A) that where there is a gift of property 
 generally to charity without the interposition of any trustees, it will 
 rest with the crown to direct the mode of its application by sign- 
 manual ; but where a trust is created, the application will be effected 
 by means of a scheme to be directed and approved of by the Court of 
 Chancery.(Z) 
 
 It has also been shown, (wj) that if a gift be impressed with the 
 character of a general trust for charitable purposes, the trustees will 
 not in general be suffered to derive any benefit from the failure of 
 all or any of the particular purposes declared by the creator of the 
 trust ;(n) or to appropriate any surplus which may remain after the 
 satisfaction of these particular purposes ;(o) or which may arise from 
 the subsequent increase in the value of the trust estate. (p) 
 
 Moreover it has been long settled that the gift of a certain speci- 
 fied rent charge or annuity in trust for a charity, will amount to a 
 gift of the estate itself, and will carry a subsequent increase of rents 
 to the exclusion of the claim of the trustees, if the specified sum be 
 
 (g) Att.-Gen. U.Dixie, 13 Ves. 519,533. 22; S. C.'2 Russ. 434, stated; 2 Att- 
 
 Qi) Att.-Gen. v. Earl of Mansfield, 2 Gen. v. Sparlss, Ambl. 201 ; Att.-Gen. v. 
 
 Russ. 501, 519. [See Att.-Gen. v. An- Coopers' Company, 3 Beav. 29; Att.-Gen. 
 
 draws, 14 Jur. 905.] v. Painters and Stainers' Company, 2 
 
 (i) Ibid. Downing College case, 2 Cox, 51 ; Att.-Gen. ■;;. Min.shuU, 4 Ves. 
 Russ. 519, cited. 1 1 ; Att.-Gen. v. Earl of Winchelsea, 3 
 
 (k) Ante, Pt. 1 Div. II. Chap. 1, Sect. 3. Bro. C. C. 334. 
 
 (0 Moggridge v. Thackwell, 7 Ves. (p) Thetford School Case, 8 Co. 130 
 
 86 ; Paice v. Archbishop of Canterbury, S. C. 2 J. &-W. 316, stated : Att.-Gen. v. 
 
 14 Ves. 372; Ommaney «. Butcher, T. Johnson, Ambl. 190; Att.-Gen. v. Ha- 
 
 & R. 270. berdashers' Company, 4 Bro. C. C. 103 
 
 (m) Ante, Pt. I. Div. 11. Ch. I. Sect. 3. Att.-Gen. v. Mayor of Coventry, 2 Vern 
 
 (n) Ante, Pt. I. Div. II. Ch. I. Sect. 3 ; 399 ; Ex parte Jortin, 7 Ves. 340 ; Att, 
 
 Att.-Gen. v. Ironmongers' Company, 2 Gen. v. Coopers' Company, 3 Beav. 29 
 
 M. & K. 579 ; 2 Beav. 313, and 1 Cr. Att.-Gen. v. Christ's Hospital, 4 Beav 
 
 & Ph. 208 ; Att.-Gen. v. Bishop of Lan'- 73 ; Att.-Gen. -u. Brentwood School, 1 M 
 
 daff, lb. 586, stated ; Att.-Gen. v. Oglan- & K. 570 ; Att.-Gen. v. Drapers' Compa- 
 
 der, 3 Bro. C. C. 166. ny, 6 Beav. 382. 
 
 (o) Att.-Gen. v. Arnold, Show. P. C. 
 
672 OF TRUSTEES FOB 
 
 equal to the annual value of the estate at the time of the giftJq) 
 Although the principle of these cases has not met with the 
 approval of later Judges,(r) and it will not he extended. And it has 
 been held, that if there be a gift of an estate to trustees in trust, to 
 apply in charity merely a specified annual sum which does not amount 
 to the then value of the estate, any surplus will not go to the charity, 
 but the trustees will take it for their own benefit ; unless indeed the 
 instrument be so framed, as to create a resulting trust to that extent 
 for the heir of the donor, (s) And if the trustees be themselves 
 objects of the donor's bounty, that will be an additional argument 
 in favor of their right to the beneficial enjoyment of the surplus.(<) 
 However, the mere fact of the trustees being a charitable corporation 
 or institution, such as a college or hospital, will not of itself have this 
 operation. (m) 
 
 So, d fortiori, where the residue, after making certain specified pay- 
 ments *in favor of a charity, is given expressly or by implica- 
 L J tion to the trustees for their own benefit, the particular chari- 
 table payments will not be increased out of the improved value, but 
 the whole income, subject to the actual payments directed by the trust, 
 will belong beneficially to the trustees. (2;)(1) 
 
 Where the trustees are themselves an eleemosynary corporation, 
 and several specified charitable payments are directed to be made 
 by them, one of which is for their own benefit, and the residue after 
 making the several payments is given to charity generally; it has 
 been held, that a subsequent improvement in the value of the pro- 
 perty will be applied rateably in the increase of the payments to all 
 the objects of the donor's bounty, including the trustees themselves. ijj) 
 
 (g) Att.-Gen. v. Coventry, 2 Vern. (u) Att.-Gen. v. Christ's Hospital, 4 
 399; 7 Bro. P. C. 235; Att.-Gen. v. Beav. 74; and see Att.-Gen. u. Caius 
 Johnson, Ambl. 190; Att.-Gen. v. Dra- College, 2 Keen, 150. 
 pers, Company, 4 Beav. 67 ; Att.-Gen. (a;) Att.-Gen. v. Catherine Hall, Jac. 
 D. Christ's Hospital, lb. 73; Att.-Gen. ■«. 381; Att.-Gen. v. Skinners' Company, 
 Coopers' Company, 3 Beav. 29 ; Mys- 2 Russ. 407 ; Att.-Gen. v. Cascoigne, 2 
 tery of Mercers v. Att.-Gen., 2 BI. N. S. M. & K. 647 ; Att.-Gen. v. Grocers' Com- 
 165. psnj') 6 Beav. 526. 
 
 (r) See Att.-Gen. v. Mayor of Bristol, (y) Att.-Gen. v. Caius College, 2 
 2 J. & W. 307. Keen, 150 ; Att.-Gen. v. Coopers' Com- 
 
 (s) Att.-Gen. v. Mayor of Bristol, 2 J. pany, 3 Beav. 29 ; see Mystery of Mer- 
 & W. 294 ; Att.-Gen. v. Grocers' Com- cers v. Att.-Gen., 2 Bl. N. S. 165 ; [and 
 pany, 6 Beav. 526. Att.-Gen. v. Merchants Venturers' Co,, 
 
 (J.) Att.-Gen. v. Mayor of Bristol, 2 J. 17 L. J. Ch. 137.] 
 & W.294; Att.-Gen. «. Grocers' Compa- 
 ny, 6 Beav. 526. 
 
 (1) The decision of Lord Langdale, M. R., in the reeent case of Att.-Gen. ». 
 Drapers' Company, 4 Beav. 67, appears to militate against the principle of these 
 cases ; unless indeed any distinction can be founded on the circumstance, that 
 the amount of the residue, which was given beneficially to the trustees, wasthe» 
 actually specified, instead of being left uncertain. 
 
CHARITABLE OR PUBLIC PURPOSES. 673 
 
 Where an estate is charged with the payment of certain speci- 
 fied sums for particular charitable purposes, without any general 
 trust for •charity, those payments ■will not be increased out of the 
 improved value of the property, although they may have become 
 insufficient for the purposes contemplated by the creator of the 
 trust.(z) 
 
 Where there is a disposition in trust for charity generally, but the 
 particular purposes expressed by the donor cannot be effectuated, it 
 has been already seen, that there will be no resulting trust for the 
 heir or next of kin. (a) Still less will the trustees be entitled to the 
 interest thus becoming undisposed of for their own benefit. But 
 there must be a cypres application — that is, an application to such 
 charitable purposes as will be supposed to come nearest to the origi- 
 nal intention of the donor.(6y However, the trustees could never be 
 advised to make such an application of the trust funds of their own 
 authority, but recourse must be had to the court, which alone is 
 competent to elaborate a proper cy pres application ; and this will 
 be done by means of a scheme to be settled by the Master upon due 
 inquiries and evidence, and ultimately to be approved of by the 
 court.^ For the purposes of the present work, therefore, it will be 
 unnecessary to go into an inquiry as to the nature and principles of 
 cy pres applications, which may be gathered from the cases referred 
 to above. 
 
 We will now proceed to consider cursorily the powers and duties 
 of trustees of charities in the administration of their trusts. 
 
 As a general rule, trustees of charities should never alienate the 
 *trust estate without the sanction of the court. It does not 
 necessarily follow, that such an alienation will be treated '- J 
 per se as a breach of trust : for in some instances the court has sanc- 
 tioned,(c) and has even gone so far as to direct, a ,sale by the trus- 
 
 (z) Atl.-Gen. v. Gascoigne, 2 M. & 324 ; Att.-Gen. v. Wansay, 15 Ves. 231 ; 
 
 K. 647; Commissioners of Char. Dona- Att.-Gen. v. Coopers' Company, 19 Ves. 
 
 tions V. Da Clifford, 1 Dr. & W. 245. 1S7; Att.-Gen. v. Ironmongers' Com- 
 
 (a) Ante, Part T. Div. II. Chap. I. pany, 2 M. &K. 576; 2 Beav. 313, and 
 Sect. 3. Cr. & Ph. 208. 
 
 (b) Att.-Gen. v. Boultbee, 2 Ves. jiin. (c) Att.-Gen. v. Warren, 2 Sw. 302; 
 379; Att.-Gen. v. Whitechurch, 3 Ves. Att.-Gen. v. Hungerford^ 8 Bl. 437; 2 
 141; Att.-Gen. v. Bowyer, lb. 714; CI. & Fin. 357. [Griffitts -u. Cope, 17 
 Bishop of Hereford v. Adams, 7 Ves. Penn. St. 96.] 
 
 ' See ante, 451, note. 
 
 " Where the scheme htis been approved by the Attorney-General, a report by 
 aMaster appears unnecessary. Att.-Gen. v. Earl Mansfield, 14 Sim. 601. 
 
 43 
 
674 OF TRUSTEES FOR 
 
 tees,((i)(l) where such a course has appeared to be for the benefit of 
 the charity (although a very strong case indeed must be established, 
 before the court will so act), [e) And what the court will sanction 
 upon its own consideration of what would have been beneficial to the 
 charity, may also be done by trustees upon their own authority in 
 exercise of their legal powers. (/) But it is plain that in ordinary 
 cases a most important part of the duty of the trustees is to pre- 
 serve the trust property, (^) and it lies with those, who seek to sup- 
 port a sale by them, to show that the transaction in question was 
 beneficial for the charity. (A) In the absence of such proof, and a 
 fortiori if there be any evidence showing that the sale was improvi- 
 dent or prejudicial to the charity, it will be treated as a breach of 
 trust, and set aside. (i) 
 
 So with regard to leases of the charity estates, it is the general 
 duty of the trustees so to manage and dispose of the property intrusted 
 to them, as may best promote and maintain the charitable purposes 
 of the founder ;(^)' and in considering the validity of such leases, 
 two points are principally to be regarded, viz., the duration and 
 nature of the term, and the consideration for the lease. 
 
 With regard to the term to be granted, it may be laid down as a 
 general rule (though subject to many exceptions), that it should be 
 for years and not on lives ;{l) and for not more than twenty-one 
 years •,{m) or in case of building leases for ninety-nine years,(n) in 
 possession and not reversionary,(o) and without any absolute cove- 
 nant for renewal, still less for perpetual renewal. (^) 
 
 {d) Att.-Gen. t). Nethercoat, 1 Hare, (i) Att.-Gen. v. Kerr, 2 Beav. 420; 
 400; cited; Anon, case, cited 2 Sw. Att.-Gen. v. Brettinghara, 3 Beav. 91; 
 302; and see Att.-Gen. v. Warren, 2 Att.-Gen. i). Mayor of Newark, 1 Hare, 
 Sw. 291. [Att.-Gen. v. Wallace, 7 B. 395; see Att.-Gen. ■!>. Burgesses of East 
 Monr. 611.] Retford, 2 M. & K. 35. [See Price v. 
 
 (e) Att.-Gen. v. Mayor, &c., of New- Methodist Church, 4 Hamm. 542.] 
 ark, 1 Hare, 395; see Att.-Gen. t;. Bui- (A:) Att.-Gen. u. South Sea Company, 
 ler, Jac. 412. 4 Beav. 457. 
 
 (/) Per Lord Langdale, M. R., 4 (/) Att.-Gen. v. Cross, 3 Mer. 524, 
 Beav. 458. 539. 
 
 {g) Ibid. (m) Att.-Gen. v. Owen, 10 Ves. 555, 
 
 Qi) Att.-Gen. 1). Owen, 10 Ves. 555; 560; Att.-Gen. v, Backhouse, 17 Ves. 
 Att.-Gen. v. Brooke, 18 Ves. 326; Att.- 283, 291. 
 Gen. V. Brettinghara, 3 Beav. 51; Att.- (n) Ibid. 
 
 Gen. V. Pargeler, 6 Beav. 150. (o) Att.-Gen. v. Kerr, 2 Beav. 420. 
 
 (p) Att.-Gen. v. Brooke, 18 Ves. 319. 
 
 (1) An order for the sale of charity estates may be obtained by petition under 
 Sir S. Romilly's Act, (52 Geo. III. c. 101.) Re" Parke's Charity, 12 Sim. 329. 
 [But see Re Suir Island Charity, 3 Jones & Lat. 171.] 
 
 ' As to leases of the charity estates, seS Att.-Gen. v. Gaines, 11 Beav. 83; 
 Att.-Gen. v. Pilgrim, 2 Hall & Tw. 186; Att.-Gen. v. Donnington, 13 Eng. L. & 
 Eq. 388; Black v. Ligon, 1 Harp. Eq. 205. 
 
CHARITABLE OR PUBLIC PURPOSES. 675 
 
 This is the general rule ; and trustees could rarely be advised to 
 depart from it without the sanction of the court. But it by no 
 means follows, that leases granted in opposition to that rule are 
 necessarily invalid as a breach of trust. On the contrary, such leases 
 have frequently been supported under special circumstances. Thus, 
 where it has been the usual custom to lease for lives, or for years 
 determinable on lives, the trustees will be justified in adopting that 
 custom, and in granting leases in that form.(g') *But in r-^.r..-, 
 such eases it seems that the number of lives in the grant L J 
 ought not to exceed three.(r) Again, where the terms of the lease 
 are fair and reasonable, and for the benefit of the charity, the court 
 on being satisfied of those facts has upheld leases granted by trus- 
 tees for a long term, such as eighty years, (s) or even for so long an 
 absolute term as amounts in fact to an alienation, as 980 or 999 
 years •,{t) and a lease with a covenant for perpetual renewal has also 
 been sustained on the same ground. (m) 
 
 However, it is incumbent on those who seek to support charity 
 leases of this unusual description, to establish the facts on which their 
 validity depends; and if they fail in doing so, the leases will be set 
 aside, and be decreed to be delivered up to be cancelled. Thus, 
 leases for long terms of years absolute, (a;) or for a term in rever- 
 sion,(z/) or containing a covenant for perpetual renewal, (2) have re- 
 peatedly been set aside for want of proof of facts which could esta- 
 blish their propriety. 
 
 Where there is any doubt in the mind of the court as to the pro- 
 priety of such leases, it will be referred to the Master to ascertain 
 that point.(a) And in considering this question, the several terms 
 of the lease — such as the amount of the rent, and its being fixed or 
 liable to be increased,(6) and the covenants on the part of the lessee, 
 as whether there is an obligation to repair, and expend money on the 
 property,(c) will have their due weight. For the disadvantage 
 
 (g) Att.-Gen. v. Cross, 3 Mer. 524; Att.-Gen. v. Owen, 10 Ves. 555; Att.- 
 
 Att.-Gen. v. Crook, 1 Keen, 121. Gen. v. Griffith, 13 Ves. 565; Att.-Gen. 
 
 (?■) Att.-Gen. v. Cross, 3 Mer. 539. v. Brooke, 18 Ves. 326 ; Att.-Gen. v. 
 
 (s) Att.-Gen. v. Backhouse, 17 Ves. Hotham, T. & R. 209 ; Att!-Gen. v. Par- 
 
 283. geter, 6 Beav. 150; Att.-Gen. v. Foord, 
 
 (i) Att.-Gen. v. Warren, 2 Svtr. 291 ; lb. 288. 
 
 Att.-Gen. v. South Sea Company, 4 {y) Att.-Gen. v. Kerr, 2 Beav. 420. 
 
 Beav. 453; see Att.-Gen. u. Kerr, 4 (2) Att.-Gen. i>. Brooke, 18 Ves. 319. 
 
 Beav. 420, 428. [See Black v. Ligon, (o) Att.-Gen. v. May wood, 18 Ves, 
 
 1 Harp. Eq. 205; but see the remarks 315, 319; Att.-Gen. v. Backhouse, 17 
 
 of Chancellor Kent, 4 Comra. 107, and Ves. 283, 294; Att-Gen. v. Warren, 2 
 
 post, 482, note.] Sw. 302. 
 
 («) Att.-Gen. v. Hnngerford, 8 BI. (i) Att.-Gen. v. Backhouse, 17 Ves. 
 
 437 ; 2 CI. & Fin. 357. 291 ; Att.-Gen. v. Owen, 10 Ves. 560. 
 
 {x) Att.-Gen. v. Green, 6 Ves. 453 ; (c) Att.-Gen. v. Cross, 3 Mer. 540. 
 
676 OF TRUSTEES FOE 
 
 occasioned by the length of the term may be counterbalanced by the 
 advantageous nature of the covenants and other stipulations. 
 
 So the custom of letting usually prevailing in the country will be 
 taken into consideration ;(cZ) although this custom ■will sanction a 
 husbandry lease for 200 years at a fixed rent.(e) 
 
 With regard to the consideration which will support a lease by 
 triistees of charity lands, it has been laid down, that the trustees may 
 take fines, or reserve rents, as is the most beneficial to the charity. (/) 
 And where it is customary to lease upon fines with a small reserved 
 rent, the trustees will doubtless be justified in adopting that custom.(5f) 
 However, as a general rule, the most improved annual rent that can 
 reasonably be obtained should be reserved, having due regard to the 
 security of its payment. But whether the lease be upon fines, or at 
 an annual rent, it may doubtless be set aside for mere inadequacy of 
 consideration alone ;{h) although for that purpose the inadequacy 
 must be very great, and must *be clearly proved. It will not 
 L -I be sufficient that a little higher rent might have been ob- 
 tained, (i) or that the value of the property at a subsequent period is 
 shown to have been greater than the rent obtained. (^) In cases of 
 charity property, the security of the rent is the essential point to be 
 looked to ; and for that reason it is desirable that the tenant should 
 have a beneficial interest in the property as an encouragement to 
 pay his rent.(Z) Therefore, the inadequacy of the amount reserved 
 is less a badge of fraud in this, than almost any other instance.(ra) 
 Hence a charity lease will rarely be overturned solely for insufficiency 
 of value ; although that, when joined with other circumstances, such 
 as unreasonable length of the term, will materially assist the court 
 in determining against the validity of the lease.(M) And so if there 
 be in addition any evidence, or presumption, of collusion or cor- 
 ruption in obtaining the lease, the court will unquestionably relieve.(o) 
 And the tenant being a relation of the trustee is a circumstance to 
 raise a suspicion of the existence of fraudulent motives. (p) 
 
 When a lease is set aside for undervalue, both the trustees and the 
 lessee will be liable to make good to the charity the difi"erence, be- 
 tween the proper value and what has been actually received.(5) 
 
 (d) Att.-Gen. o. Price, 3 Atk. 110; (i) Att.-Gen. v. Cross, 3 Mer. 541. 
 AU.-Gen. v. Cross,. 3 Mer. 529, 540. (fc) Ibid. 
 
 (e) Att.-Gen. v. Pargeter, 6 Beav. 150. (Z) See Watson v. Hindsworth Hos- 
 (/) Att.-Gen. v. Stamford, 2 Sw. 591. pital, 2 Vern. 596. 
 
 (g-) Ibid. (m) Ex parte Skinner, 2 Mer. 457. 
 
 Ih) Eeresby iJ. Farrer, 2 Vern. 414; (n) Att.-Gen. v. Green, 6 Ves. 452; 
 
 EastiJ. Ryal, 2 P. Wms. 284; Att.-Gen. Att.-Gen. v. Dixie, 18 Ves. 519; Att.- 
 
 V. Gower, 9 Mod. 224; Att.-Gen. v. Gen. ■«. Brooke, 18 Ves. 326. 
 Dixie, 13 Ves. 519; Att.-Gen. v. May- (o) Ex parte Skinner, ubi supra, 
 wood, 18 Ves. 315; Yervel v. Sutton, (p) Ibid. 
 
 Duke Ch. Us. 43 ; Eltham v. Warreyn, (j) Att.-Gen. v. Stamford, 2 Sw. 692. 
 lb. 67. 
 
CHARITABLE OR PUBLIC PURPOSES. 677 
 
 With regard to the general powers of trustees to grant leases of 
 charity property, it was said by Lord Langdale, M. R., in a recent 
 case,(r) " It is certainly a strong proposition to lay down, that the 
 trustees of a charity have the same powers which a prudent owner 
 has with respect to his own property : there may, perhaps, be dicta 
 which go almost to that extent, but I apprehend that much more is 
 expected from trustees acting for a permanent charity, than can be \ 
 expected from the ordinary prudence of a man in dealings between 
 himself and other persons. A man acting for himself may indulge 
 his own caprices, and consider what is convenient or agreeable to 
 himself, as well as what is strictly prudent. Trustees of a charity, 
 within the limits of their authority, whatever they may be, should be 
 guided only by a desire to promote the lasting interest of the 
 charity, "(r) 
 
 Where the trustees are expressly restricted by the terms of the 
 trust to leases of a certain form and duration, it is of course incum- 
 bent upon them to adhere to the line thus marked out for their 
 guidance. (s) Indeed, the court itself has no power to sanction any 
 departure from the prescribed mode.(^) But where the trust instru- 
 ment contains a power for the trustees to grant leases in a peculiar 
 form, as for three lives or thirty-one years, the court, if necessary, 
 will control the trustees in the exercise of such a power, for the 
 benefit of the charity. (m) In granting leases of the charity property, 
 the trustees must not stipulate for or reserve any personal benefit for 
 themselves. For instance, where a corporation, being trustees for a 
 cbjarity, caused a covenant to be inserted in a *lease of the 
 charity lands, binding the lessee to grind at the corporation ^ ^ 
 mill, it was held by the Lord Chancellor, that this covenant was im- 
 proper, and a sufficient reason for refusing them their costs. (?;) 
 
 And on the same principle, charitable trustees must not grant a 
 lease to one of their number. And should a trustee take such a lease, 
 and enter into possession under it, the court will charge him with an 
 occupation rent at the extreme value. (a;) 
 
 The extent of the powers of the trustees in the control and ma- 
 nagement of charities will depend in every case on the terms of the 
 deed or instrument of foundation. Where the general discretionary 
 administration of the trust is committed to them, the court will not 
 interfere with them in the exercise of their discretion, unless a breach 
 
 (r) Att.-Gen. v. Kerr, 2 Beav. 428. {v) Att.-Gen. v. Stamford, 2 Sw. 592, 3. 
 
 {s) See Att.-Gen. v. Griffith, 13 Ves. [x) Att.-Gen. v. Dixie. 13 Ves. 519, 
 
 565. 534; Att.-Gen. v. Clarendon, 17 Ves. 
 
 {t) Att.-Gen. v. Rochester, 2 Sim. 34. 491, 500. 
 
 (u) Ex parte Berkhampstead School, 
 2 V. & B. 138. 
 
678 OF TRUSTEES FOR 
 
 of trust be shown to have been committed.* And the right of nomi- 
 nating and removing the objects and oflBcers of the charity, and 
 generally of determining its mode of application within the princi- 
 ples pointed out by the founder, will be left exclusively to them.{jf) 
 
 But the trustees must be careful not to exceed the powers con- 
 ferred on them by the instrument of foundation, or to travel out of 
 the strict line of the trust. And if from the wording of the trust, 
 or the change in value of the charity property, or other alteration of 
 circumstances, any question should arise which was not clearly de- 
 fined or provided for by the founder, they could not safely act 
 without the direction of the court.(2) 
 
 If the particular charitable purposes be clearly defined by the 
 trust, those purposes must be carried out strictly by the trustees, 
 and any application of the property to a difi'erent object will be a 
 breach of trust. Thus, a trust to find a preacher in I>ale, will not 
 be properly executed by providing one in Sale. And a trust to pro- 
 vide a preacher will not authorize an application of the fund to the 
 relief of the poor, or any other different purpose. (a) 
 
 So, where an estate is given in trust for the repair of a chapel, the 
 trustees must apply the whole of the rents to that object, and must 
 not sufier the surplus to be mixed with the parish rates for general 
 purposes.{b) And a fund vested in trustees for the purpose of esta- 
 blishing an hospital, will be improperly applied towards lighting and 
 paving the town.ie) Again, a trust for the benefit of the inhabitants 
 of one parish cannot be extended by the trustees to those of other 
 parishes.{d) And where a chapel was granted in trust for the benefit 
 of a school, the trustees are not authorized in incurring any expense 
 in enlarging the chapel for the benefit of the inhabitants of the 
 hamlet where the school is situated, (e) 
 
 (y) Alt.-Gen. v. Lock, 3 Alk. 164; Russ. 501; Att.-Gen. v. Earl of Lons- 
 
 Atl.-Gen. v. Myddleton, 2 Ves. 327; dale, 1 Sim. 105; Att.-Gen. v. Buller, 
 
 Att.-Gen. v. Corporation of Bedford, lb. Jac. 407. 
 
 505; Att.-Gen. v. Harrow School, lb. (a) Duke's Char. Us. 116; Wilves- 
 
 551 ; Att.-Gen. v. Foundling Hospital, 2 comb case, lb. 94. 
 Ves. jun. 41; 4 Bro. C. C. 165; Att.- (6) Alt.-Gen. v. Vivian, 1 Russ. 237. 
 Gen. V. Earl of Clarendon, 17 Ves. 491 ; (c) Att.-Gen. v. Kell, 2 Beav. 575. 
 Ex parte Berkhampstead School, 2 V. ((/) Att.-Gen. v. Brandreth, 1 N. C. C. 
 
 & B. 1 34 ; Waldo v. Caley, 1 6 Ves. 206 ; 200. 
 Horde v. Earl of Suffolk, 2 M. & K. 59. (c) Att.-Gen. v. Mansfield, 2 Russ- 
 
 (z) SeeAtt.-Gen.t). Christchurch, Jac. 501. 
 474; Att.-Gen. v. Earl of Mansfield, 2 
 
 ' Att.-Gen. v. Moseley, 12 Jur. 889; Willis v. Childe, 2 Eng. L. & Eq. 41; 13 
 Beavan, 117 (but see Doe dem. Childe u. Willis, 2 Eng. L. & Eq. 356); Regi). 
 Darlington School, 6 Q. B. 682; Wilkes's Charity, 7 Eng. L. & Eq. 73 ; Parker v. 
 May, 5 Cush. 351; Att.-Gen. v. Wallace, 7 B. Monr. 611. But where trustees 
 choose to assign reasons for their action, and these reasons are insufficient to 
 justify it, the court will interfere. Wilkes's Ch., ut supra. 
 
CHARITABLE OR PUBLIC PURPOSES. 679 
 
 So, the trustees of a charity will not be justified in placing the 
 funds *under the control of other persons, who were not con- 
 templated by the creator of the trust.(/) '- -^ 
 
 Where the objects of a trust for charity are described in general 
 terms, the trustees, in executing the trust, must adopt the construc- 
 tion which has been applied by the court to those general terms. For 
 instance, where the trust is for the " poor" of a parish generally, 
 the charity funds ought to be applied exclusively to the relief of 
 those poor who are not in receipt of parochial relief. {c/y- And a 
 trust to establish a '■'■grammar school," must be executed by the 
 establishment of a school for instruction in the classics : or at any 
 rate a system of education, excluding the study of the classics, will 
 be an improper execution of the trust •,{h) although, if the trust be 
 for the maintenance of a '■•school" simply, it will be in the discre- 
 tion of the trustees to establish a grammar school, or a school for 
 teaching other branches of learning, subject to the control of the 
 court.(i) And in several modern instances, the court has sanctioned 
 the introduction of a provision for instruction in writing, arithmetic, 
 &c., into a scheme for the regulation of a grammar school. (^) 
 
 In like manner, where the trust is " for the establishment and 
 maintenance of a place of worship for protestant dissenters," and 
 the particular sect and nature of the doctrines to be taught, are not 
 specified, it has been decided that no doctrines ought to be allowed 
 to be taught, which are opposed to the opinions of the founder. 
 And the appointment of a preacher of a difi"erent persuasion will 
 amount to a breach of trust on the part of the trustees, for which 
 they may be removed from the trust.(?/ 
 
 (/) Att.-Gen. v. Brandreth, 1 N. C. (i) Duke's Ch. Us. 169; Att.-Gen. v. 
 
 C. 200. Hartley, 2 J. & W. 370 ; Att.-Gen. v. 
 
 (g) Att.-Gen. ■«. Claike, Ambl. 422; Jackson, 2 Keen, 541. 
 Att.-Gen. v. Corporation of Exeter, 2 (4) Att.-Gen. v. Haberdashers' Com- 
 Russ. 45, and 3 Euss. 395; Att.-Gen. v. pany, 3 Russ. 530; Att.-Gen. v. Dixie, 
 Wilkinson, 1 Beav. 370. [But see Att.- 3 Russ. 534, n.; 2 M. & K. 342; Att.- 
 Gen. V. Bovill, 1 Phill. 762, where this Gen. v. Gascoigne, 2 M. & K. 652; Att.- 
 rule was disapproved.] Gen. v. Caius College, 2 Keen, 151. 
 
 (A) Att.-Gen. v. Hartley, 2 J. & W. (/) Foley -y. Wontner, 2 J. & W. 247 • 
 
 353; Att.-Gen. «. Dean of Christchurch, Att.-Gen. v. Pearson, 3 Mer. 353; and 
 
 Jae. 474; Att.-Gen. v. Earl of Mans- 7 Sim. 290; Att.-Gen. v. Shore, 7 Sim. 
 
 field, 2 Russ. 501; Re Bedford Charity, 309, n. [9 CI. & F. 390 : (Lady Hewley's 
 
 2 Sw. 528. Charities) ] ; Att.-Gen. v. Drummond, 1 
 
 Dr. &W. 353; 3 Id. 162. 
 
 ' See, as to the apportionment of bequests to the " poor of a parish," on the divi- 
 sion of the latter into districts, Re West Ham Charities, 12 Jur. 783 ; 2 De G. & 
 Sm. 218 ; and as to the division of a township, where funds have been appropri- 
 ated for school purposes for its inhabitants, Plymouth v. Jackson, 15 Penn. St. 
 Rep. 44. 
 
 ^ See, on this subject, Att.-Gen. v. Shore. 9 CI. & F. 390; Att.-Gen. v. Wilson, 
 
680 OF TRUSTEES FOR 
 
 So, where a lease was granted to trustees in trust for " the congre- 
 gation of protestant dissenters of the Presbyterian persuasion, who 
 then met at a house belonging to A.," to be used as a meeting-house 
 "for the said congregation of protestant dissenters," and the congre- 
 gation in question had always acted upon the system of doctrine and 
 discipline of the Church of Scotland ; it was held that the minister 
 and majority of the existing congregation forfeited their interest by 
 seceding from that form of worship, and that the trustees were justi- 
 fied in removing them by ejectment.(w2) 
 
 Where a trust is created for maintaining " the worship of God," 
 without prescribing the form of worship, the object will be presumed 
 to have been in favor of the Established Church, and the trust must 
 be executed accordingly. (w) 
 
 Where" an estate was vested in trustees in trust for the repair of a 
 church and chapel, it was held, that the trustees were justified in ap- 
 plying accumulated rents in rebuilding the chapel; although the 
 corpus of *the property could not be so applied : and it 
 L -■ seems that the trust did not authorize any payments towards 
 the fitting up of the chapel. (o) 
 
 (m) Broom v. Summers, 10 Law (n) Att.-Geii. u. Pearson, 3 Mer. 409. 
 Joura. N. S., Chanc. 71. (o) Att.-Gen.'w. Foyster, 1 Anst. 116. 
 
 16 Sim. 210; Att.-Gen. i). Munro, 2 De G. & Sm. 122; Glasgow Coll. u Atl.- 
 Gen., 1 H. L. Gas. 801, overruling S. C., 2 Coll. 665; Att.-Gen. v. Button, 1 
 Drury, 480; Drummond v. Att.-Gen., 2 H. L. Cas. 837, 2 Eng. L. & Eq. 15; Att.- 
 Gen. V. Murdock, 7 Hare, 445; aff. 1 De G. M. & G. 86, 12 Eng. L. & Eq. 83; 
 Att.-Gen. v. Lawes, 8 Hare, 3^. The better doctrine appears to be, in the United 
 States, that the court will interfere to prevent a diversion of the temporalities 
 of a church, whether by a majority or minority of its members; and to require 
 them to be appropriated to the support of the form of worship, and to teaching 
 the doctrines, for which they were originally intended. Miller v. Gable, 10 Paige, 
 647 ; Gable v. Miller, 2 Denio, 492 ; Field v. Field, 9 Wend. 394 ; Kniskern v. 
 Lutheran Churches. 1 Sandf Ch. 439; Hendrickson v. Dean, Saxton, 577; App. 
 V. Lutheran Congregation, 6 Barr, 201 ; Trustees v. Sturgeon, 9 Barr, 322; see 
 Denn v. Bolton, 7 Halsted, 205 : Contra, Organ Meeting-House v. Seaford, 1 Dev. 
 Eq. 453; Keyser i>. Stanisfer, 6 Hamm. 363. In order to ascertain what were 
 those doctrines, reference may be made to history, and to the prior and contem- 
 poraneous standard theological writers of the time. Att.-Gen. v. Shore, 9 CI. & F. 
 390: Drummond v. Att.-Gen. 1 H.L. Cas. 801 ; Gable v. Miller, 2 Denio, 492 ; Tras- 
 tees V. Sturgeon, 9 Barr, 322 ; Kniskern v. Lutheran Ch., 1 Sandf. Ch. 439. But 
 this is merely on the usual ground of determining what were the circumstances 
 in which the donor or testator was placed, in order to ascertain, the meaning he 
 applied to his words ; and, therefore, evidence of his particular opinions is inad- 
 missible. Drummond v. Att.-Gen. ; Trustees v. Sturgeon ; ut supra. See, further, 
 as to the separation of religious bodies, Skilton i>. Webster, Bright. N. P. 203; 
 Presbyterian Congregation v. Johnston, 1 Watts & S. 1 ; Hadden v. Chorn, 8 B. 
 Monr. 78. 
 
 A mere change of name by a religious society will not affect any of its rights. 
 Cahite v. Bigger, 8 B. Monr. 213. 
 
CHARITABLE OR PUBLIC PURPOSES. 681 
 
 It has been decided, that the trustees of a school may increase the 
 salaries of the master and usher, which had been fixed by the will at 
 a certain amount, where the circumstances of the charity property 
 admitted of the increase, and where the increase of the salaries was 
 not prohibited by the will.(p) However, in the absence of special 
 discretionary powers, trustees could rarely be advised to take upon 
 themselves the responsibility of any such unauthorized application of 
 the funds. 
 
 A trust for the " relief of the poor" has been held to authorize the 
 trustees to apply the fund in building a school-house for the educa- 
 tion of the children of the parish.(5) 
 
 Where the court is in possession of the fund given in trust for 
 charity, it will not in general deliver it over to the uncontrolled ad- 
 ministration of the trustees, however ample may be their discretion- 
 ary powers ; but it will usually be referred to the Master to approve 
 of a scheme in order to insure the due application of the whole of 
 the fund.(r) However, in a late case a fund in court was ordered to 
 be transferred to the legatees in trust to be administered by them, 
 although it was objected on behalf of the Attorney-General, that a 
 scheme ought to have been directed. (s) And if the gift be in trust 
 for an established charity, payment will be directed without any re- 
 ference. (^) 
 
 And where the trust is for a foreign charity, the court has no 
 jurisdiction to direct a scheme, but will order the fund to be paid 
 over to the trustees.(M) 
 
 It is a rule of the court not to marshal the assets of a testator in 
 favor of legacies to charity, so as to give them efi'eet out of the per- 
 sonal estate, where they are void, so far as they touch any interest 
 in land, (a;) 
 
 Neither the old Statutes of Limitation, («/) nor the late act 3 & 4 
 
 (p) Att.-Gen. v. Dean of Christchurch, Minet v. VuUiamy, lb. 1 13 ; Att.-Geii. v. 
 
 2 Russ. 321. Lepine, 2 Sw. 181. 
 
 ^ (g) Wilkinson v. Malin, 2 Tyr. 544, (a:) Mogg v. Hodges, 2 Ves. 52 ; 
 
 5T0. Att.-Gen. v. Tyndall, Ambl. 614; Fors- 
 
 (r) Supple V. Lawson, Ambl. 730 ; ter v. Blagden, lb. 704 ; Hillyard v. 
 
 Waldo V. Caley, 16 Ves. 211; Well- Taylor, Ambl. 713; Att.-Gen. ■«. Hurst, 
 
 beloved v. Jones, 3 S. & St. 40 ; Cor- 2 Cox, 364 ; Makeham v. Hooper, 4 
 
 poration of Sons of Clergy v. Mose, 9 Bro. C. C. 153. [See ante, 457, note.] 
 
 Sim. 610. {y) Att.-Gen. v. Mayor of Coventry, 
 
 («) Society for Propagation of Gos- 2 Vern. 399; 7 Bro. P. C. 235 ; 3 Mad. 
 
 pel V. Att.-Gen., 3 Rnss. 143. 353 : Att.-Gen. v. Mayor of Bristol, 2 J. 
 
 (0 1 S. & St. 43; 9 Sim. 610. & W. 321; Att.-Gen. v. Mayor of Exe- 
 
 (u) Provost of Edinburgh v. Aubery, ter, Jao. 448 ; Irish Incorporated Society 
 
 Ambl. 236 ; Emery «). Hill, 1 Russ. 112; ■!;. Richards, 1 Dr. &W. 258; Att.-Gen. 
 
 V. Hungerford, 8 Bl. N. S. 437. 
 
682 OF TRUSTEES FOR 
 
 Will. IV. c. 27, apply to any questions between the trustees and 
 the objects of the charity as to the appropriation or application of 
 the trust property.(2) Although an adverse enjoyment of any part 
 of the fund by the trustees for a long period, is a very material point 
 for consideration in putting a construction upon the interest on which 
 such a question may arise. (a)' 
 
 i- Q *Where upon an information or suit, the court has decided 
 •- J against the right of the trustees of a charity to appropriate 
 any part of the funds for their own benefit, the decree for an account 
 of the sums improperly appropriated by them has frequently, and 
 indeed will ordinarily be limited to the time of the filing of the in- 
 formation or bill, if the misappropriation have been made for a long 
 period, through real mistake, and without any corrupt motive, and if 
 the evidence or answer of the trustees disclose no reason for extend- 
 ing the account farther back. (6) And the circumstances of the trus- 
 tees being a corporate body, will increase the disposition of the court 
 to apply a lenient construction to their proceedings ;(c) although in 
 a proper case the court will also struggle to adopt a similar rule in 
 favor of a trustee, who is a private individual. ((^) 
 _^ But this relaxation of the strict rules of equity is a matter of dis- 
 cretion, in the exercise of which the court will be governed by the 
 particular circumstances of each case.(e) And it is clear, that if 
 
 (z) See Sir E. Sugden's observations Russ. 50 : Att.-Gen. v. Burgesses of 
 
 in Irish Incorp. Society v. Richards, 1 East Retford, 2 M. & K. 35: Att.-Gen. 
 
 Dr. & W. 287, 8; and Att.-Gen. v. Per- u. Mayor of Newbury, 3 M. & K. 650; 
 
 see, 2 Dr. & W. 67; Att.-Gen. u. Flint, Att.-Gen. v. Prettyman, 4 Beav. 462; 
 
 V. C. Wigram. [4 Hare, 147; Coram. Att.-Gen. d. Drapers' Company, lb. 67; 
 
 of Donations v. Wybrants, 2 Jones & Att.-Gen. v. Christ's Hoispital, lb. 73 ; 
 
 Lat. 183.] Att.-Gen. v. Drapers' Company, 6 Beav. 
 
 (a) Att.-Gen. v. Mayor of Bristol, 2 J. 382. 
 & W. 321; Att.-Gen. v. Mayor of Exe- (c) Att.-Gen. v. Mayor of Newbury, 
 
 ter, .Jac. 448. 3 M. & K. 651. 
 
 (6) Att.-Gen. ■«. Johnson, Ambl. 190; (d) Att.-Gen. u. Prettyman, 4 Beav. 
 Att.-Gen. v. Owen, 10 Ves. 555 ; Att.- 462 ; and see Att.-Gen. v. Caius Col- 
 Gen. V. Griffith, 13 Ves. 565; Att.-Gen. lege, 2 Keen, 150, 167. 
 «. Dixie, lb. 519; Att.-Gen. w. Skinners' (e) Att.-Gen. v. Mayor of Exeter, 
 Company, 5 Mad. 173; Att.-Gen. v. Jac. 449, 450; Att.-Gen. d. Prettyman, 
 Mayor of Coventry, 7 Bro. P. C. 235; 4 Beav. 466; Att.-Gen. v. Drapers' 
 Att.-Gen. u. Corporation of Exeter, 2 Company, 6 Beav. 382. 
 
 ' No neglect or perversion of the funds of a charity, by the trustees, will be 
 permitted to affect it. Hadley v. Hopkins's Academy, 14 Pick. 240; Griffitts v. 
 Cope, 17 Penn. St. 96 ; Wright v. Linn, 9 Barr, 433 ; Att.-Gen. v. Wallace, 7 B. 
 Monr. 611; Price v. Methodist Church, 4 Haram. 542 ; McKissick v. Pickle, 16 
 Penn. St. J 48. The declarations of a trustee for a charity will not affect the per- 
 sons interested in the trust, McKissick v. Pickle, ut supr. But the general rule does 
 not apply where there is express limitation over from one charity to another, con- 
 tingent on the neglect of the trustees of the first to carry out the provisions of the will. 
 Christ's Hospital v. Grainger, 1 Mac. &G. 460; 14 Jur. 339. 
 
CHARITABLE OE PUBLIC PURPOSES. 683 
 
 there be any wilful or improper conduct on the part of the trustees, 
 the retrospective account will be decreed against them from the com- 
 mencement of the misappropriation of the fund.(/) And if they 
 continue to appropriate the charity funds after receiving due notice 
 of the impropriety of such a course, they would be ordered to ac- 
 count from the time of their receiving the notice. (^) And if they 
 should confound the particular fund in question with other charita- 
 ble funds, also under their control, in one general account, instead 
 of keeping the accounts separate, that would be an act of mal-ad- 
 ministration, for which no goodness of intention (supposing them 
 to be cognizant of the confusion they were effecting) could excuse 
 them.{hf 
 
 Moreover, the promptitude of the trustees in assisting the court to 
 rectify the error, will be an important ingredient for consideration 
 in deciding upon the extent of their liability. But in order to en- 
 title them to the indulgence of the court, they ought by their answer 
 to give every possible information and facility, in order to the due 
 decision of the question. (^) And if there be any resistance on their 
 part to the establishment of the right, or any concealment of the 
 evidence, it becomes a much more difficult thing for the court to 
 give them the benefit of its discretion in these cases. (yfc) 
 
 In some instances the court, notwithstanding the blamelessness of 
 the *trustees, and the hardship of the case, has not thought p^ .^/^-. 
 proper itself to limit the strict liability of the trustees, but has '- -■ 
 referred it to the Attorney-General, to consider whether it were a pro- 
 per case in which to enforce the extreme rights of the charity.(?) 
 
 If the trustees, by their answer, recognise and establish their 
 liability to account for the charity funds beyond the filing of the in- 
 formation, the court will act upon the admission, and decree the re- 
 trospective account to that extent, although there may be no improper 
 conduct on the part of the defendants. For instance, where the 
 answer rendered account as far back as 1791, the decree directed the 
 account to be taken up to that year.(ni) And so where the defen- 
 
 (/) Att.-Gen. v. Brewers' Company, (A) Per Lord Langdale, M. R., in 
 
 1 Mer. 295. Att.-Gen. v. Prettyman, 4 Beav. 466; 
 
 (g) See Att.-Gen. v. Burgesses of and see Att.-Gen. v. Burgesses of East 
 
 East Retford, 2 M. & K. 35, 37. Retford, 2 M. & K. 35. 
 
 (h) Per Lord Brougham, Ch., in Att.- (/) Att.-Gen. v. Mayor of Exeter, 2 
 
 Gen. V. Mayor of Newbury, 3 M. & K. Russ. 362, 370; Att.-Gen. v. Bretting- 
 
 651, 2. ham, 2 Beav. 91, 95; Att.-Gen. v. Pret- 
 
 (t) Att.-Gen. v. Burgesses of East tyman, 4 Beav. 462, 467. 
 
 Retford, 2 M. & K. 35; Att.-Gen. v. (m) Att.-Gen. v. Corporation of Staf- 
 
 Prettyman, 4 Bea\'. 466. ford, 1 Russ. 547. 
 
 ■ Where there is a [breach of trust by charity trustees, the party injured has 
 no light to be indemnified out of the trust fund. Feoffees of Heriot's Hospital v. 
 Ross, 12 CI. & Fin. 507. 
 
684 TRUSTEES FOR CHARITABLE OR PUBLIC PURPOSES. 
 
 dants (a corporation) admitted their liability to account generally for 
 charity funds received by them, and stated, that they had always 
 charged themselves in their books as debtors to the charity for the 
 amount of the sums appropriated, they were decreed to account 
 generally, without any limitation, although it was objected, that the 
 account would thus go back for 200 years.(w) 
 
 The nature of the trust instrument will also materially influence 
 the court in directing retrospective accounts against trustees of cha- 
 rities for their past appropriation of the funds ; and where they have 
 acted honestly, though erroneously, under an instrument of doubtful 
 construction, they will not be charged with any past misapplication. 
 On this point, it has been said, by Lord Eldon, " it often happens 
 from the nature of the instrument creating the trust, that there is 
 great difficulty in determining how the funds of a charity ought to 
 be administered. If the administration of the funds, though mis- 
 taken, has been honest, and unconnected with any corrupt purpose, 
 the court, while it directs for the future, refuses to visit with punish- 
 ment what has been done in time past. To act on any other prin- 
 ciple would be to deter all prudent persons from becoming trustees 
 of charities. "(o) 
 
 There has already been occasion to consider the extent of the 
 jurisdiction of the court in removing trustees of charities, and ap- 
 pointing others in their places, as well as the circumstances and the 
 manner in which that jurisdiction will be exercised. (p)' It may be 
 here repeated, that in charity cases, the court will direct, that the 
 newly-appointed trustees shall be at liberty to appoint others to suc- 
 ceed them when necessary. (g') And also, that new trustees of a 
 charity will never be appointed without a reference to the Master.(r) 
 
 The efiect of a power in the trust instrument to appoint new trus- 
 tees, has also been considered.(s) 
 
 It may be almost unnecessary to remark, that if there be a gift to 
 an established charitable institution, or to the governors, or treasurer, 
 &c., of such an institution, without expressly declaring any trust, 
 the donees will take as trustees for the charity, and not for their own 
 benefit.(i) 
 
 (n) Att.-Gen. v. Mayor of Exeter, (5) Att.-Gen. v. Earl of Winchelsea, 
 
 Jac. 443; S. C, 2 Russ. 362. Seton Decr.131 ; Ee 52 Geo. III.,c. 101; 
 
 (0) Att.-Gen.u. Corporation of Exeter, 12 Sim. 262. 
 
 2 Russ. 45, 54. (r) Alt.-Gen. v. Arran, 1 J. &. W. 279. 
 
 (p) Ante, Pt. I., Div. III., Ch. 11., p. (s) Ante, Pt. I., Div. III., Ch. I. 
 
 190, and notes. (?) Irish Incorporated Society v. Rich- 
 ards, 1 Dr. & W. 294. 
 
 ' It seems, that a testamentary trustee of a charity will not be removed merely 
 because he is bankrupt, and occasionally residing abroad. Archbold v, Comm. 
 Charitab. Donations, 2 H. L. Cases, 440. In Massachusetts, trustees of a charity 
 are not obliged to give bond, as in other cases. Lowell's App., 22 Pick. 215. 
 
OF POWERS OF SALE. 685 
 
 *III.— OF TRUSTEES OF POWERS. [*471] 
 
 I.— Or Powers of Sale [471]. HI. — Op Powees of Changino Secu- 
 
 II.— Of Powers of Leasino [480]. rities [482]. 
 
 IV. — Of Discretionary Powers [485]. 
 
 I. — OF POWERS OF SALE. 
 
 A trustee could rarely be justified in selling the trust estate for 
 any purpose, however beneficial, without an authority express or im- 
 plied conferred on him for that purpose by the trust instrument : and 
 wherever the nature or duration of the trusts, or the description of 
 the property, renders the necessity for a sale at all probable, a power 
 of sale should never be omitted. 
 
 A power of sale may be given to trustees, either as appendant to 
 the legal estate, and to take effect out of it ; or, it may exist as a 
 mere collateral authority, unaccompanied by any legal interest in the 
 property to be sold. In the latter case, if the trust be created by 
 will, the legal estate will descend to and remain vested in the tes- 
 tator's heir until devested by the execution of the power, whereupon, 
 it will pass to the vendee. (<) 
 
 For instance, if a testator devise lands to his executors to sell, the 
 freehold will pass to them by the devise, coupled with the power ; 
 but if the devise be merely, "that his executors shall sell" the 
 land, the executors take only a power, and the freehold vests in the 
 heir by descent.(M) And so it seems to be the better opinion, that a 
 devise of lands to he sold hy the executors, without any words of 
 direct gift, will invest them with a fower only, and not pass the legal 
 estate, (a;)^ 
 
 (0 Earl of Stafford v. Buckley, 2 Ves. («) See 1 Siigd. Few. 128, 6th edit., 
 179; Warneford v. Thompson, 3 Ves. and authorities there cited, 
 jun. 513 ; 1 Sugd. Pow. 115, et seq. 6th {x) 1 Sugd. Pow. 133. 
 edit.; see Forbes v. Peacocls, 11 Sim. 
 152. 
 
 'See on these distinctions, 4 Kent's Comm. 331, &c. ; 4 Greenl. Cruise. 199, 
 note; and see Peter v. Beverly, 10 Pet. 532; 1 How. U. S. 134; Jackson v. Burr, 
 9 John. R. 104; Peck v. Henderson, 7 Yerg. 18 ; Ferebee v. Proctor, 2 Dev. & Batt. 
 439; 1 Dev. & Batt. Eq.496; Haskell v. House, 3 Brevard, 242; Tainteru. Clark, 
 13 Melcalf, 220; Zebach u. Smith, 3 Binn. 69; andpost, 472, note. Where there 
 is only a naked power, the legal estate vests in the heir till the sale, who, before 
 that period, will be entitled to the rents and profits : Haskell v. House, 3 Brevard, 
 242 ; Thornton v. Gaillard, 3 Rich. 418 ; Bradshaw v. Ellis, 2 Dev. & B. Eq. 20; 
 Marsh v. Vi^heeler, 2 Edw. Ch. 156; Taylor v. Benham, 5 How. 269; Linden- 
 berger v. Matlack, 4 Wash. C. C. 278 ; Jackson v. Burr, 9 John. R. 104 ; Allen 
 V. De Witt, 3 Comstock, 276; though he be at the same time executor. Schwartz 
 
686 OF POWERS OF SALE.. 
 
 It is clear, that no precise form of words is requisite for creating 
 a power of sale, powers are mere declarations of trust, and any 
 words, however informal, which show an intention to create such a 
 power, will be suflScient for the purpose. (^) Thus, as we have 
 already seen, the trustees will take a power of sale by implication, 
 under a trust for the payment of debts : for such a power is neces- 
 sary to the due execution of the trust. (2)* 
 
 Without entering into a discussion of the law affecting powers in 
 general (which would be foreign to the object of the present work), 
 we will now proceed to consider some of the principal points which 
 arise from the power of sale being vested in trustees, instead of in the 
 beneficial owners. 
 
 It has been decided, that where a will directs an estate to be settled 
 to uses in strict settlement, a power for trustees to sell with the con- 
 sent of the tenant for life, cannot be inserted in the settlement 
 r*4721 ''^^'^°'^* *ii express *provision : not even where there is a 
 direction by the testator for the insertion of "all proper 
 powers and authorities for making leases, and otherwise, according 
 to circumstances. "(6)1 
 
 (2/) 1 Sugd. Vow. 1 16. (6) Brewster v. Angell, IJ. & W. 625 ; 
 
 (2) Ante, Pt. III., Ch. II., Sect. 2, PI. Horn v. Barton, Jac. 437, S. C. 
 II.; Wood V. White, 4 M. & Cr. 481, 2. 
 
 Estate, 14 Penn. St. R. 47. So of a devisee. Guyer v. Maynard, 6 Gill & John. 
 420. But this internnediate estate will be destroyed, and the interest therein of 
 creditors or purchasers defeated by the exercise of the power. Braman v. Stiles, 
 2 Pick. 464. In Pennsylvania, by the 13th sect, of the Act of 1834 (Dunlop Dig. 
 511), executors, with a naked power of sale over real estate, take and hold the 
 same interest therein, and have the same powers and authorities for all purposes 
 of sale and conveyance, and also of remedy by action, or otherwise, as if the 
 same had been devised to them to be sold. In New York, by the Revised Statutes, 
 on the other hand (Part II. ch. 1, tit. 2, art. 2, § 56), a devise to executors, or 
 other trustees, to be sold or mortgaged, where they are not also authorized to 
 take the rents and profits, vests no estate in them ; but is only valid as a power, 
 and the land descends to the heirs, subject to the power. In the United States, 
 ■generally, there are also various statutes, too numerous to be particularised, 
 authorizing the sale of real estate for debts, and other purposes, by executors, 
 and other trustees, on application to the proper court. 
 
 ' See ante, 342, 355, and notes. It is not necessary that there should be a 
 specific authority given to the trustee, to enable him to sell. If a sale is necessary 
 to the due execution of the trust, it will always be inferred, that the testator 
 means to give, to the person directed or empowered, every authority which is 
 necessary for his declared purpose. 2 Spence Eq. Jur. 366, and cases cited; 
 Going V. Emery, 16 Pick. 111. Thus, a direction to divide and pay over the 
 shares to legatees, where a literal division is impracticable, implies a power to 
 sell for the purpose. Winston v. Jones, 5 Alab. 550. But a mere direction to 
 divide is not enough. Craig v. Craig, 3 Barb. Ch. 76. So a power to locate and 
 survey will not authorize a sale. More v. Lockett, 2 Bibb. 69. And see Clark v. 
 Riddle, 11 S. & R. 311. 
 
OF POWERS OF SALE. 687 
 
 But it has been held on the construction of marriage articles, that 
 a power of sale and exchange was properly introduced into a settle- 
 ment, where the articles contained a direction for the insertion of 
 "all usual and proper powers, ^e.," in the settlement. (c) In the 
 case of Hill v. Hill,(c2) the Vice-Chancellor (Sir L. Shadwell) said, 
 " there is a palpable distinction between inserting in a settlement 
 powers for the management and better enjoyment of the settled 
 estates, which are beneficial to all parties, and powers, which confer 
 personal privileges on particular parties, such as powers to jointure, 
 to raise money for any particular purpose, &c. But powers of leasing, 
 of sale and exchange, and (in certain cases) powers of partition, of 
 leasing mines, and of granting building leases, are powers for the 
 general management and better enjoyment of the estates ; and such 
 powers are beneficial to all parties." 
 
 However, even in a trust created by articles, if there be no posi- 
 tive direction for the insertion of a power of sale, or at all events of 
 " the usual and proper powers," it seems that such a power cannot 
 be introduced into the settlement, (e) And even where there is a 
 general direction in the articles for the insertion of " all usual and 
 proper powers," a trustee, who sells under a power of sale inserted 
 in the settlement under that general direction, can scarcely confer a 
 marketable title according to the present state of the authorities. 
 
 A power of sale, whether it be a common law authority, or one 
 taking effect under the Statute of Uses, can be exercised only by the 
 parties to whom it is expressly given. Hence doubts have occa- 
 sionally arisen as to the validity of the execution of the power after 
 the death of the original donees. For instance, where a power is 
 given to two or more persons bi/ name without any words of survivor- 
 ship, it cannot be exercised by the others alone after the death or 
 renunciation of any one of the donees.(/) But where the power is 
 conferred on "the trustees" as a class and not by name, there the 
 power will be continued as long as there are more trustees than one, 
 by whom it may be exercised, although no words of survivorship be 
 added. (^) If the power were given to persons nominatim, but also 
 in their character of trustees without any words of survivorship, it 
 might still be a matter of doubt, whether the power would exist after 
 the death of any of the original donees.(A)' 
 
 (c) Peake v. Penlington, 2 V. & B. (/) 1 Sugd. Few. 141, 144, 6th edit. 
 
 311 : Hill V. Hill, 6 Sim. 136; see Wil- Ig) Ibid, 
 
 liams V. Carter, 2 Sugd. Pow. App. 23. (Ji) 1 Sugd. Pow. 141, 144, 6th edit.; 
 
 {d) 6 Sim. 144. Co. Litt. 113, a. note 2. 
 
 (e) 2 Sugd. Pow. 484, 6th edit. 
 
 ' Where a power of sale is given to several executors, viriute officii, or is given 
 to them by name, but is coupled with an interest or trust, the power maybe ex- 
 
688 OF POWERS OF SALE. 
 
 Upon the same principle where a power of sale was reserved in a 
 settlement to three trustees by name and their heirs, it was held by 
 
 ereised by tlie survivor. Osgood v. Franklin, 2 J. C. R. 19; Zeback v. Smith, 3 
 Binn. 69 ; Wood v. Sparks, 1 Dev. & Batt. 389 ; Burr v. Sim, 1 Whart. 266 ; Niles 
 V. Stevens, 4 Denio, 399; Coykendall v. Rutherford, 1 Green. Ch. 360; Putnam 
 Free School v. Fisher, 30 Maine, 526; Jackson v. Burtis, 14 Johns. 391 ; Sharp 
 V. Pratt, 15 Wend. 610; Peters v. Beverly, 10 Peters, 532; 1 How. U. S. 134- 
 Robertson v. Gaines, 2 Humph. 367 ; Miller v. Meetch, 8 Barr, 417 ; Muldrevp v. 
 Fox, 2 Dana, 79 ; 4 Kent's Coram. 326; note to 4 Greenl. Cruise, 148. See also, 
 ante, 220, 307, and note. As to what interest is requisite to enable a surviving 
 trustee, &c., to exercise a power of sale, see Watson v. Pearson, 2 Exch. 580, and 
 American note. The statute law of many of the States, authorizes the survivor 
 of several executors to exercise powers of this nature given, by will. Dunlop, 
 Penn. Dig. 519, Act of 1834, H3; New Jersey Rev. Code, tit. X., Ch. 7, Sect. 19; 
 How. & Hutch., Mississippi Dig. 413; Rev. St. Arkansas, Ch. IV. § 144; Mis- 
 souri, Rev. St., Ch. 3, Art. 3, § 1 ; Alabama, Aik. Dig. 450 ; Lucas v. Price, 4 
 Alab. 683. In some, indeed, the provision is general, and applies to all trustees. 
 New York Rev. St., p. II. Ch. 1, tit. 2, Art. 3, § 112: Delaware Rev. Code, Ch. 
 90, Sec. 17; Ohio Rev. Stat., Ch. 129, Sect. 59, 60. But the Revised Statutes of 
 New York do not authorize a part of the executors to execute a power, where 
 their co-executor has been discharged by the court, after acceptance ; it seems that 
 the court must appoint. Matter v. Van Wyck, 1 Barb. Ch. 565. 
 
 Whether these acts extend to the case of discretionary powers, is not clearly 
 settled. It has been held in Kentucky, that the statute of that State did not 
 apply to them. "Wooldridge v. Watkins, 3 Bibb. 350; Clay v. Hart, 7 Dana, 1; see 
 Brown v. Bobson, 3 A. K. Marsh. 331. So in Mississippi, Bartlett v. Sutherland, 
 2 Cushman, Miss. 401. But in Taylor v. Morris, 1 Comstoek, 341, under the 
 New York statute, an opposite conclusion was come to; the decisions in Ken- 
 tucky were dissented from, and the cases of Chauel i;. Villeponteaux, 3 McCord, 
 R. 29, and Wood v. Sparks, 1 Dev. & Batt. 389, under the 21 Henry 8, with 
 regard to non-acting executors, approved and followed. But see Shelton v. 
 Horner, 6 Metcalf, 462; and Ross i;. Barclay, 18 Penn. St. 179. In Earl Gran- 
 ville V. McNeil, 13 Jur. 252, 7 Hare, 156, under the latter statute it was said, that 
 the question was, whether the confidence was reposed in the individuals named, 
 or in the persons who should de facto fill the office of executor ; and in the par- 
 ticular case, which was that of a power of appointing new trustees, reserved by 
 a settlement on trusts for sale, to one of the parlies, his executors, administrators, 
 and assigns, it was held that the renunciation of one executor did not affect the 
 exercise of the power by those remaining. See also, Affleck v. James, 13 Jur. 
 756, 17 Sim. 121. It seems clear in England, however, that a purely discre- 
 tionary power will not survive without express words. See post, 489 ; 1 Sugden 
 on Powers, 7th Ed. 150, 152, 319. 
 
 As a general rule, administrators cum testamento annexo, succeed only to the 
 ordinary administration duties and authorities, and cannot therefore exercise any 
 trust, or power given by will, with reference to real estate. Moody's Lessee v. 
 Vandyke, 4 Binn. 31 ; Tainter v. Clark, 13 Metcalf. 220; Lucas v. Doe, 4 Alab. 
 679 ; Hall v. Irwin, 2 Gilm. 180; Hunt v. Hadden, 2 Mass. 160; Wills v. Cow- 
 per, 2 Ohio, 124; Knight v. Loomis, 30 Maine, 208; Conklin ij. Egerton, 21 
 Wend. 430 (but see remarks 4 Kent, 7th Ed., note (2), to page 343) ; Jackson v. 
 Potter, 4 Wend. 672 ; McDonald v. King, Coxe, 432 ; Armstrong v. Park, 9 
 Humph. 195; Drane v. Bayliss, 1 Id. 174. This, however, has been altered by 
 
OP POWERS OF SALE. 689 
 
 the Court of K. B., that two surviving trustees could not execute the 
 power.(i) And although this decision was afterwards disapproved of 
 by Lord Eldon, yet that eminent judge felt himself so far bound by 
 its authority as to refuse *to compel a purchaser to take a r^^iro-i 
 title under somewhat similar circumstances. (^) However, in 
 a recent case, where a testator devised all his residuary estate to 
 three persons by name, and to their respective heirs and assigns, in 
 trust first that they the "above named" devisees "and their respec- 
 tive heirs and assigns" should sell ; the Vice-Chancellor of England 
 held, that on the construction of a will, the two survivors of the three 
 devisees had power to sell, and his Honor rejected the words "re- 
 spective" as inconsistent with the general intention. (Z) 
 
 Where the power is given to several persons by name {as trustees), 
 and " the survivors and survivor, and the heirs of the survivor," it is 
 
 (i) Townsend v. Wilson, 1 B. & AM. (i) Hall v. Dewes, Jac. 189. 
 608; S. C. 3 Mad. 261. (0 Jones v. Price, 11 Sim. 557. 
 
 statute, with regard to powers of sale, in several of the States. See Dunlop Penn. 
 Dig. 530, Act of 1834, ^ 67; Com. v. Forney, 3 W. & S. 357; Ohio, Rev. St. Ch. 
 129, § 59; New Jersey, R. S. Tit. X. Ch. 7, } 19; North Carolina, R. S. Ch. 46, 
 § 34 (though only implied in executor, Hester v. Hester, 2 Ired. Eq. 330; Smith 
 V. McCrary, 3 Id. 204) ; Missouri, R. S. Art. 3, Ch. 3, H ; How. & Hutch. Miss. 
 Dig. 413; Arkans. R. S. Ch. IV. § 144; Vermont, R. S. Tit. 12, Ch. 46, Sect. II. 
 {semble) ; South Carolina, 5 Coop. Stat. 15; see Drayton v. Grimke, 1 Bail. Eq. 
 393 ; Virginia, Rev. Code, p. 545; see Brown v. Armistead, 6 Rand. 671 ; Kentucky, 
 Act of 1810, 1 Stat. 671 ; see Owens v. Cowan's heirs, 7 B. Monr. 156. But, as 
 in the case of a surviving executor, above referred to, it has been held in 
 some States, that these provisions do not extend to discretionary powers, or per- 
 sonal trusts. Brown v. Hobson, 3 A. K. Marsh, 381; Woodridge v. Watkins, 3 
 Bibb. 350 ; Montgomery v. Milliken, Sm. & M. Ch. 498 ; 5 Sra. & M. 188. See 
 Conklin v. Egerton, 21 Wend. 430 ; 25 Wend. 224; Tainter v. Clark, 13 Metoalf, 
 220. So, in Pennsylvania, in the recent case of Ross v. Barclay, 18 Penn. St. R. 
 179, it was held that the 67th Sect, of the Act of 1834, only authorized an ad- 
 ministrator c. t. a., to execute a power to sell for the payment of debts ; but not 
 to execute a trust for a collateral purpose, or to exercise a discretionary power ;. 
 and therefore that a power of sale for accumulation and division did not devolve 
 upon him. In Brown v. Armistead, 6 Rand. 594, however, it was held that the' 
 administrator with the will anne.xed, could act under a direction to sell given to> 
 executors, " provided the land will sell for as much as in their judgment will be- 
 equal to its value," the proceeds of sale to be applied by a trustee named ; the 
 power being imperative, and not vesting any peculiar personal confidence in the- 
 executors. See Taylor v. Morris, 1 Comstock, 341. Where a power of sale in 
 a mortgage is given to the mortgagee, his executors, administrators, and assigns, 
 it may be of course exercised by an administrator, c. t. a. Doolittle v. Lewis, T 
 J. C. R. 48. 
 
 The husband of an executrix, acting in her right, carinot exercise a power o£ 
 sale given to her. May's heirs v. Frazee, 4 Litt. 391. 
 
 U 
 
690 OF POWERS OF SALE. 
 
 settled, that the power may be well exercised by the only acting 
 trustee or his heirs, in case the others renounce the trust. (m) 
 
 But where the power is confided to the trustees "and their heirs" 
 only, and not their assigns, it cannot be exercised by persons claim- 
 ing by assignment from the heirs of the original tru8tee.(?i) And in 
 a similar case, a devisee of the original trustee is equally incapable 
 of exercising the power, for a devise is also an assignment.(o)' 
 
 And from the observations of Sir L. Shadwell, V. C.E., in the 
 recent case of Cooke v. Crawford, which has been just referred to, it 
 seems to be very questionable whether a devisee of a trustee would 
 be entitled to exercise powers of sale, or other powers, vested in his 
 testator as trustee, even where the power was limited to the trustee 
 and his assigns : and his Honor in that case expressed a strong 
 opinion against the power of a trustee to delegate the execution of a 
 trust to his devisee in any case.(^) 
 
 The power of sale should be carefully framed so as to avoid any 
 question of this nature, and it should be conferred expressly on the 
 trustees, and the survivors or survivor of them, and the heirs, or exe- 
 cutors, or administrators of such survivor, and their or his assigns. 
 
 If a power of sale be created by a will, but without declaring by 
 ■whom it is to be exercised, but the proceeds of the sale are directed 
 to be applied or distributed by the executor or any other person, the 
 executor or that other person will take the power of selling by im- 
 plication, unless any contrary intention appear from the will.(2)^ 
 
 (m) Hawkins v. Kemp, 3 East, 410; (5) Newton v. Bennet, 1 Bro. C. C. 
 
 Cooke V. Crawford, 11 Law Journ. N. 135; Elton v. Harrison, 2 Sw. 276, n.; 
 
 S., Chanc. 406, and 13 Sim. 91 ; and see Blatch v. Wilder, 1 Atk. 420; Benthami). 
 
 Eaton V. Smith, 2 Beav. 239; Sharp v. Wiltshire, 4 Mad. 44; Tylden v. Hyde, 
 
 Sharp, 2 B. & A. 405. [See ante, 226, 2 S. & St. 238 ; Forbes v. Peacock, 11 
 
 307, and notes.] Sim. 152 [S. C, 12 Sim. 528; 11 M. 
 
 {n) Bradford v. Belfield, 2 Sim. 264. & W. 630; Curtis v. Fulbrook, 8 Hare, 
 
 (0) Cooke u. Crawford, ubi supra. 28; Watson v. Pearson, 2 Exch. 580; 
 
 (p) Cooke V. Crawford, 13 Sim. 97; Gosling v. Carter, 1 Coll. 644; and see 
 
 sed vide, How v. Whitfield, 1 Ventr. Doe v. Hughes, 3 Engl. L. & JEq. 558] ; 
 
 338; 1 Freem. 476; and see post, p. 541 Ward v. Devon, 11 Sim. 160, stated; 
 
 [Disabilities of Trustees]. sed vide Patton v. Randall, Ij. &W. 
 
 189. 
 
 ' But see note (1) to page 2'83, ante. 
 
 'As a general rule, a direction in a will that real estate shall be sold for the 
 payment of debts and legacies, or for division or distribution, without specifying 
 by whom, vests a power of sale in the executors by implication : Davoue v. 
 Fanning, 2 John. Ch. R. 254; Bogert v. Hertell, 4 Hill, 492; Meakings v. Crom- 
 well, 2 Sandf. S. C. 512, affirmed, 1 Selden, 136; Dorland v. Dorland, 2 Barb. 
 S. C. 63; Lloyd v. Taylor, 2 Dallas, 223; Houck v. Houck, 5 Barr, 273; Silver- 
 thorn V. McKinster, 12 Penn. St. 67 ; Putnam Free School v. Fisher, 30 Maine, 
 523 ; Foster v. Craig, 2 Dev. & Batt. Eq. 209 ; Robertson v. Gaines, 2 Humph. 
 378; Magruder v. Peter, 11 Gill. & J. 217; Peter v. Beverly, 10 Peters, 532; S.C. 
 
OF POWERS OF SALE. 691 
 
 The trustees of a power of sale are interposed principally for pro- 
 tecting the settled estate against the tenant for life. It will there- 
 fore be a breach of trust on their parts to employ or suffer the tenant 
 for life to exercise the power and to sell the settled property as their 
 agent, and the court will refuse to enforce the specific performance 
 of a contract made by the tenant for life under such circumstances.(r) 
 
 But where the trustees have a power of sale with the consent of 
 the tenant for life, and the estate is sold, and the purchase-money 
 received by *the tenant for life, who makes a contemporane- p^^^ •-, 
 ous purchase of another estate, it will be held, that the tenant L J 
 for life acted throughout as the agent of the trustees, both in the 
 sale and the reinvestment, and the estate so purchased will therefore 
 be treated as subject to the trusts of the settlement, although the 
 conveyance is taken absolutely in the name of the tenant for life.(s) 
 
 A trustee is not justified in delegating the power of sale to a 
 stranger,(<)' although he may doubtless employ a solicitor or other 
 
 (r) Mortlook v. BuUer, 10 Ves. 309, («) Price v. Blakemore, 6 Beav. 507. 
 313. ^ (i) Hardwick v. Mynd, 1 Arist. 109. 
 
 1 How. U. S. 134; contra, in South Carolina, Draylon v. Drayton, 2 Desaus. 250 ; 
 Shoulbred v. Drayton, Id. 246. But in Geroe v. Winter, 1 Halst. Ch. 655, on a 
 devise to children in fee, " to be divided or sold as two (out of three) could 
 agree," it was held that there was no implication of a power of sale in the exe- 
 cutor. And if, as in the case of a prior devise for life to the executor, the sale is 
 directed to take place after his death, he can neither sell, nor transmit the power 
 to his executor: Waller v. Logan, 5 B. Monr. 516. In some of the States it is 
 expressly provided by statute that powers of sale not given to any one by name, 
 shall vest in and be exercised by executors: see Dunlop, Penn. Dig. 518, Act 
 of 1834, § 12; Rev. Code Delaware, ch. 90, ^ 17; Clay's Alab. Dig. 598, ^ 14; 
 Missouri, R. S., ch. 3, art. 3, §1 ; How. & Hutch., Mississippi, 413; Rev. St. Ark., 
 ch. iv. § 144 ; South Carolina, Act of 1787, 5 Coop. St. 15. In the last four States 
 (ut supra), the provisions also extend to cases where a trustee has been ap- 
 pointed by will to make sale, but has refused to act, or has died before execution 
 of the power. 
 
 ' Black -«. Irwin, Harper's Law R. 411 ; Pearson v. Jamison, 1 McLean, 199: 
 Bergen v. Duff, 4 J. C. R. 368; or even to his co- trustee: Bergen v. Duff, ut supr. 
 But in Sinclair v. Jackson, 8 Cowen, 582, it was said to be the better opinion, 
 that trustees with a power might act by attorney, if they restricted him to the 
 conditions imposed on themselves. So in Hawley v. James, 5 Paige, 487, the 
 Chancellor, after deciding, that •'' a general authority to sell and convey lands 
 belonging to the estate, or to contract absolutely for the sale of such lands," 
 cannot be given by trustees with a power of sale, observes: "But they may 
 intrust an agent with an authority to make conditional sales of land lying a dis- 
 tance from the place of residence of the trustees, subject to the ratification of the 
 trustees ; . . . and they may also empower him to make and execute valid con- 
 veyances of the land thus sold, upoii "^compliance with the terms of sale, after 
 such sales have been so ratified by tHfein. The purchaser in such case, however, 
 would probably be bound to show that this condition precedent had been com- 
 plied -wilh. The better course in a case of this kind, therefore, is to intrust the 
 
692 .OP POWEES OF SALE. 
 
 agent to conduct the usual details of the sale.(M) But the agent's 
 authority must be in writing,(a;) and signed by all the trustees.(^) 
 
 Where the power of sale is in the nature of a trust, the trustees 
 must effect the sale within a reasonable time, although they are em- 
 powered to sell " at such time as they may think fit." For by post- 
 poning the sale indefinitely, they might materially affect the relative 
 interests of the cestui que trusts for life and in remainder.(2)' How- 
 ever, a direction to sell " as soon as conveniently may be," does not 
 render it more imperative on the trustees to urge on the sale ; for 
 the law implies that direction. (a) 
 
 A trust to reinvest is usually attached to the exercise of a dis- 
 cretionary power of sale given to trustees. However, it does not 
 appear to be absolutely necessary, that the trustees should have an- 
 other purchase immediately in view before they sell, even where the 
 settlement does not contain the usual direction, that until a conve- 
 nient purchase can be found, the money shall be laid out at inte- 
 rest. (J)^ Bu't where a sale is made without any immediate prospect 
 
 (u) Ex parte Belchier, Ambl. 218; 391; see Hawkins v. Chappel, 1 Atk. 
 
 Ord V. Noel, 5 Mad. 498. 621, 3. 
 
 (x) Mortlock i;. BiiUer, 10 Ves. 311. (a) Buxton v. Buxton, 1 M. & Cr. 
 
 (y) Ibid. [Sinclair v. Jackson, 8 Co- 80 ; see Fitzgerald v. Jervoiae, 5 Mad. 
 
 wen, 582.] 29; Garrett v. Noble, 6 Sim. 504. 
 
 (s) Walker v. Shore, 19 Ves. 387, (6) Mortlock v. BuUer, 10 Ves. 309; 
 
 2Sugd. Pow. 511, 12, 6th edit 
 
 agent with a discretionary power to contract, subject to the ratification of the 
 trustees upon his report of the facts; and that they should themselves execute 
 the conveyance, when the terms of sale have been complied with, and transmit it, 
 properly acknowledged, to the agent, to be delivered to the purchaser." Where 
 the trustees have an interest as well as a power, they may act by attorney: 
 May's Heirs v. Frazee, 4 Litt. 391; Telford v. Barney, 1 Iowa, 591. In Blighti;. 
 Schenck, 10 Barr, 285, it was said that an assignee, for the benefit of creditors, 
 might make an attorney to convey; but the nature of the authority there does not 
 distinctly appear from the report: see also Doe v. Robinson, 2 Cushm. Miss. 688. 
 In Tennessee, by the Act of 1833 (Car. & Nich. Dig. 86), executors authorized by 
 will to sell lands, may execute deeds and agreements to sell, by attorney, the 
 power of attorney being duly executed, proved, and registered. So, in Pennsyl- 
 vania, by Act of March 14, 1850, Dunlop, 1072, H, a trustee, executor, or other 
 person acting in a fiduciary character, with power to convey land in that Stale, 
 may make conveyances under the power, by attorney, and all previous convey- 
 ances so made bona fide, are confirmed; but it is provided that the fiduciary is 
 not thereby authorized to delegate to others the discretion vested in himself, for 
 the general management of his trust. 
 
 ' But on the other hand, where there is no necessity for an immediate sale, it 
 will be a breach of trust in a trustee for creditors to bring on a sale at a mani- 
 fest disadvantage, as where the title is in dispute : Hunt v. Bass, 2 Dev. Eq. 297; 
 Johnston v. Eason, 3 Ired. Eq. 330 ; Quarles v. Lacy, 4 Munf. 251. 
 
 ^ But in general, where there is a power to sell when the land can be sold and 
 the proceeds invested advantageously for those concerned, the power is not un- 
 
OF POWERS OP SALE. 693 
 
 of an advantageous reinvestment, there must be some strong purpose 
 of family prudence to justify the conversion, such as an advantageous 
 o£Fer or the like, in order to absolve the trustees from a breach of 
 trust.(c) Every power of sale should contain a direction that the 
 money shall be invested until a convenient purchase is found, for 
 otherwise, if the trustees sold without any prospect of immediate re- 
 investment, there might be a question, whether the sale could be 
 supported even in favor of a purchaser, (ci) 
 
 The tenant for life of a settled estate frequently acquires the ulti- 
 mate remainder in fee through the failure of the intermediate limi- 
 tations : and in these cases it seems to be the better opinion that a 
 power of sale given by the settlement to the trustees during the life 
 of the tenant for life, can no longer be exercised, for the intention 
 of the settlement is to confine the power to the time, during which 
 the uses of the settlement exist. (e)^ 
 
 There can be still less question, as to the extinguishment of the 
 power, where it is expressly directed to be exercised only during the 
 continuance of the trusts, and this is usually done in the modern 
 forms. But *the power will subsist, unless the trusts have 
 clearly determined, although they may continue through the ■- ^ 
 fault of the trustees, as by their not making a conveyance directed 
 by the trust.(/) And if the trust continue as to part of the pro- 
 
 (c) Mortlock V. BuUer, 10 Ves. 309; (d) 2 Sugd. Pow. 511, 12. 
 
 Lord Mahon v. Earl Stanhope, 2 Sugd. (e) Mortlock v. BuUer, 10 Ves. 292 ; 
 
 Pow.512,n.; and seeBroadhurstv. Bal- Wheate v. Hall, 17 Ves. 80; 2 Sugd. 
 
 guy, 1 N. C. C. 16, 28; Watts t). Girdle- Pow. 508, 6th edit, 
 
 stone, 6 Beav. 190; Cowgill «. Lord (/) Wood u. White, 4 M. & Cr. 460, 
 
 Oxmantown, 3 Y. & Coll. 369. overruling S. C. 2 Keen, 664. 
 
 limited, but must be fairly exercised ; and the sale will be void where the trustee 
 appears to have been influenced by private and selfish interests, and the sale is 
 for an inadequate price: Wormley v. Wormley, 1 Brock. 330; 8 Wheat. 421. 
 Under such circumstances, the trustee ought not to sell, unless he has another 
 and advantageous purchase in view. But it was admitted in this case, that there 
 was much reason in the doctrine, that where the trust is defined in its object, 
 and the purchase-money is to be reinvested upon trusts, which require time and 
 discretion, or the acts of sale and reinvestment are manifestly contemplated to 
 be at a distance from each other, the purchaser is not bound to see to the appli- 
 cation of the money: Id. 443; see ante, 363, note. 
 
 ' It is a general rule, that a power (except it be in trust) is merged both in law 
 and equity, when the legal and equitable estates are joined in the same person : 
 McWhorter v. Agnew, 6 Paige, 111 ; see Moore v. Shultz, 13 Penn. St. R 101. 
 Where land was conveyed on various trusts with power of sale, and the trustees, 
 intending to annul the trusts, reconveyed to the grantor, it was held that the 
 power was extinguished by the reconveyance; but that, on his subsequently 
 conveying the estate again to the trustees, to hold for the same uses and pur- 
 poses, and as fully in every respect as under the original conveyance, the power 
 revived: Salisbury v. Bigelow, 20 Pick. 174. 
 
694 OP POWERS OF SALE. 
 
 perty, but have ceased as to the remainder, the power will remain 
 and be exercisable over the entirety, unless there is a direction to 
 the contrary in the trust instrument. For instance, where an estate 
 was vested in trustees, in trust as to a moiety for each of the tes- 
 tator's daughters in fee at twenty-one, with a power for the trustees 
 to sell during the continuance of the trusts, and one of the daughters 
 had reached twenty-one, and the trust had consequently determined 
 as to her share, it was held by Sir John Leach, that the trustees had 
 power notwithstanding to sell the entirety, it being necessary that 
 the power should exist as to the whole, in order to preserve it for the 
 benefit of the other share.(^) Hence, if it be intended that the 
 power of sale should continue only as to such parts of the estate as 
 remain subject to the trust, that intention should be expressed in 
 framing the power. (A) 
 
 It is settled, that an unlimited power of sale, to be exercised dur- 
 ing successive estates tail is not invalid for remoteness, for such a 
 power may be destroyed with the estate tail.(i) And even where the 
 power was collateral to limitation in fee it has notwithstanding been 
 supported, where the sale was made within the limits prescribed by 
 law against perpetuity. (A) However, it is still unsettled how far the 
 execution of an unlimited power of sale, could be supported beyond 
 those limits, and by consfequence for an indefinitely prospective 
 period. (Z)' 
 
 It is settled that a simple power of sale will not authorize a parti- 
 tion of the estate.(»i) And although it was held on one occasion by 
 Lord Rosslyn, that a power of sale and exchange will enable the 
 donees to make a partition ;(«) yet that decision has not been acted 
 upon, and appears to be of very doubtful authority.(o) However, it 
 
 ig) Troweri;. Knightley, 6 Mad. 134. (J.) 2 Sugd. Pow. 495, 6, 6th edit. 
 
 Qi) Wood ■«. White, 4 M. & Cr. 480. (m) M'Queen v. Farquar, U Yes. 
 
 (i) Biddle v. Perkins, 4 Sim. 135; 467. 
 
 Powis V. Capron, lb. 138, n.; Waring (ra) Abel v. Heathcote, 4 Bro. C. C. 
 
 V. Coventry, 3 M. & K. 249. [Wallis v. 278 ; S. C. 2 Ves. jun. 98. 
 
 Freestone, 10 Sim. 225.] (o) Att.-Gen. v. Hamilton, I Mad. 
 
 (Jc) Boyce v. Hanning, 2 Cr. & Jerv. 214; 2 Sugd. Pow. 506, 6th edit. 
 334. 
 
 ' In Nelson v. Callow, 15 Simons, 353, a testator devised his estates to trustees, 
 in trust for his brother's first and other sons successively in fee ; but so that the 
 estate and interest of each of these should cease in favor of his next brother on 
 his dying under twenty-one, and without issue living at his death; and if all of 
 them should die under that age, and vpithout leaving issue living at their deaths, 
 in trust for the person who should be his heir, absolutely. And he empowered 
 the trustees of his will for the time being to sell the estates at any time after his 
 decease, and at their discretion. A purchaser under the power, objecting that it was 
 '■ void as contravening the rule against perpetuities," wasnevertheless, compelled 
 to take the title ; counsel on both sides, as well as the court, being of opinion 
 that the objection could not be supported. 
 
OF POWERS OF SALE. 695 
 
 is clear, that an exchange, or partition of a settled estate, may be 
 circuitously effected under a power authorizing a sale only, and for 
 that purpose it is sufiBcient to use the form of a sale instead of a mere 
 partition or exchange ; nor could the transaction, if made bona fide, 
 be impeached as an improper execution of the power. (^^ 
 
 It has been decided, that trustees with a power of sale and ex- 
 change may give money for owelty of exchange without any express 
 authority for that purpose. (g-) 
 
 A power for trustees to sell will authorize a mortgage by them, 
 which is a conditional sale, wherever the objects of the trust will be 
 answered by a mortgage ; as, for instance, where the trust is to pay 
 debts or raise portions.(r)^ But where the trusts declared of the 
 purchase-money show, that the settlor contemplated an absolute con- 
 version of the estate, a mortgage *will be an improper execu- r-^AHr,-, 
 tion of the power.(s) Trustees with a power of sale, can-'- -' 
 not grant leases.{ty 
 
 Where a mortgage is taken in the name of a trustee, who is ex- 
 pressly empowered to sell the mortgaged estate in a certain event for 
 the purpose of paying off the mortgage debt, and it is declared, that 
 the concurrence of the mortgagor shall not be necessary to perfect 
 the sale, the trustees alone may sell, and make a good conveyance of 
 the estate ; and it is immaterial that the mortgage deed contains a 
 
 (y) 2 Ves. jun. 101; 1 Mad. 223; 2 See Holme v. Williams, 8 Sim. 557; 1 
 
 Sugd. Pow. 507, 6th edit. Sugd. Pow. 538. 
 
 (5) Bartram t). Whichcote, 6 Sim. 86; (s) Holdenby v. Spoffoith, 1 Beav. 
 
 2 Sugd. Pow. 507, 6th edit. 390. 
 
 (r) Mills V. Banks, 3 P. Wms. 1 ; Ball {t) Evans v. Jackson, 8 Sim. 217. 
 V. Harris, 8 Sim. 485 ; 4 M. & Cr. 264 ; 
 
 ' See as to the construction of powers of sale and exchange, Marshall v. Slad- 
 den, 7 Hare, 438 ; Lord Leigh v. Lord Ashburton, 11 Beav. 478. A power of sale 
 will not of itself authorize an exchange. Ringgold v. Ringgold, 1 H. & Gill, 1 1 ; 
 Taylor v. Galloway, 1 Hamm. 232. 
 
 ^ See ante, 355, note. A power to sell or mortgage is not exhausted by a mort- 
 gage. Asay V. Hoover, 5 Barr, 20 ; but see Piatt v. Oliver, 2 McLean, 309. 
 
 ^In Hedges v. Riker, 5 J. C. R. 163, where there was a. devise to executors 
 in trust for C. for life, and if she died without issue, then in remainder over, with 
 power to the executors " to sell and dispose of so much of the real estate as should 
 be necessary to fulfil the will," it was held that this was sufficient to authorize 
 the executors, the persons in remainder being infants, to execute leases for years 
 of the real estate, for such terms and upon such conditions as were reasonable 
 and necessary to carry into effect the intentions of the testator, expressed in the 
 will. And in Burr v. Sim, 1 Whart, 266, it was said that an absolute direction to 
 sell, by implication authorized the executors to rent houses devised, until they 
 could be sold. But in Seymour v. Bull, 3 Day, 389, a power to sell and dispose of 
 lands devised to the children of the testator, was held not to give any right totha 
 executors to enter on the land or to lease it. 
 
OF POWERS OF SALE. 
 
 covenant on the part of the mortgagor, that he will join in making 
 the conveyance.(M) 
 
 The power of trustees for sale to give discharges for the purchase- 
 money will be considered more fully in the next Chapter.(a;)' How- 
 ever, it may be observed here, that even previously to the recent act 
 7 & 8 Vict. c. 76, s. 10, where a power of sale was given to trustees, 
 with direction to employ the purchase-money generally for the benefit 
 of the cestui que trusts in a manner requiring time and discretion, 
 as where the trust was to lay it out again in lands to the uses of 
 the settlement, and till that was done to invest in the funds ;(y) or to 
 employ the money in payment of debts generally ;{£) or of certain 
 specified debts, which could not be ascertained until a future and dis- 
 tinct period ;(a) or where the parties beneficially entitled to the pur- 
 chase-money were infants or unborn ;(6) it was settled, that the trus- 
 tees must necessarily take the power of giving discharges for the 
 purchase-money as incident to the trust, and without any express 
 authority for that purpose ; for the power of sale would otherwise be 
 nugatory. But where the object of application was specifically 
 pointed out, and was immediate and certain, the purchaser under 
 the power would have been bound to ascertain, that the money was 
 duly applied by the trustees, unless the instrument creating the trust 
 expressly absolved him from that liability, by providing that the 
 receipt of the trustee should be a suiEcient discharge. (c) 
 
 The 10th section of the act 7 & 8 Vict. c. 76, has been already 
 stated,((^) and its efiect in altering the law on this subject will be con- 
 sidered in the next Chapter. It may be observed here, that the pro- 
 vision contained in the 13th section of the same act, which declares, 
 that the act shall not extend to any deed, act, or thing, or (except as 
 to contingent remainders) to any estate, right or interest created be- 
 fore the first of January, 1845, must render the practical application 
 of the act a matter of great difficulty in most cases. (e) 
 
 A trustee with power to sell and give receipts has the complete 
 power of disposition over the trust estate, and he may compel a pur- 
 
 (u) Clayi;. Sharpe, 18 Ves. 346, n.; (6) Sowarsby d. Lucy, 4 Mad. 142; 
 
 see Corder v. Morgan, 18 Ves. 344. Lavender v. Stanton, 6 Mad. 46 ; Bree- 
 
 (a:) Post, Ch. IIL don v. Breedon, 1 Russ. & M. 413. 
 
 ly) Doranv.Wiltshire, 3Swanst. 699. (c) 2 Sugd. V. & P. 30, et seq., 9th 
 
 (z) Ante, Pt. in. Div. 1. Ch. IL Sect, edit.; ante, p. 342, 363 ; and see post, 
 
 2, PI. n. 1 ; Forbes v. Peacock, 1 1 Sim. Ch. IIL of this Part. [Duffy v. Calvert, 
 
 152, 160; Jones «. Price, 11 Sim. 557; 6 Gill, 487.] 
 
 post, Ch. III. id) Ante, Pt. III. Div. I. Ch. II. Sect. 
 
 (a) Balfour v. Welland, 16 Ves. 151, 2, PL I. note. 
 
 156. (e) See Post, Ch. III. 
 
 ' See ante, 342, 343, and notes; and, in addition to the cases there cited, 
 Duffy V. Calvert, 6 Gill, 487, where the English doctrine was followed. 
 
OF POWERS OP SALE. 697 
 
 chaser to complete his contract without joining the cestui que trusts 
 as parties to a suit for the specific performance. (/) 
 
 *A power for trustees to sell and purchase other lands to p^ ,-^-, 
 he held on the same trusts, will not he well executed by a sale ^ -■ 
 of the trust estate for a rent charge granted out of it by the pur- 
 chaser, (^y And so a sale for an annuity cannot be supported under 
 the ordinary power.(A) 
 
 AVhere an estate is settled in trust for a tenant for life without 
 impeachment f 07- waste, and a power of sale is given to the trustees 
 with a direction for reinvestment, it will be an improper execution 
 of the power for the trustees to sell the land, minus the timber on it, 
 and to suffer the timber to be sold separately, and the money to be 
 received by the tenant for life. For the intention of the creator of 
 the power will be taken to have been, that the whole estate, of which 
 the timber constitutes part, should be sold for one entire sum, to be 
 resettled, and the fact of the tenant for life being unimpeachable for 
 waste makes no difference in this respect. (i) 
 
 Where trustees are invested with a discretionary power to sell real 
 estate, the estate until sold, and whatever remains unconverted after 
 a partial sale, will retain its original character of realty.(^) 
 
 Equity will enforce the specific performance of a proper contract 
 entered into by trustees under a power of sale;(?) and even if the 
 power were determined before the conveyance could be made, yet if 
 the trustees had power to bind the estate by their contract, those 
 who have the legal interest, will be compelled to make it good.(m) 
 However, it has been already seen, that a contract of sale by trus- 
 tees made in breach of their trust, will not be specifically enforced. (n) 
 Thus it was laid down by Sir John Leach, V. C, in the case of Ord 
 V. Noel, " that if trustees fail in reasonable diligence — if they con- 
 tract under circumstances of haste and improvidence — if they make 
 
 (/) Binks V. Lord Rokeby, 2 Mad. Sim. 107 ; Doran v. Wiltshire, 3 Sw. 
 
 227 ; Keon'W.Magawly, 1 Dr. & W. 401 ; 699 ; Wolf «. Hill, 1 Sw. 149, n. 
 
 Drayson v. Pocock, 4 Sim. 283. [See (k) Walters. Maunde, 19 Ves. 424; 
 
 Dufiy V. Calvert, 6 Gill, 487.] 2 Sugd. Pow. 504. 
 
 (g-) Eead V. Shaw, 2 Sugd. Pow. (I) Mortlock w. Buller, 10 Ves. 315; 
 
 512; App. 29. 2 Sugd. Power, 511. 
 
 (A) Raid v. Shergold, 10 Ves. 370, (m) Moitlockv.BuWei, ubi supra. 
 
 381. t^n) Ord ■«. Noel, 5 Mad. 438; Wood 
 
 (j)Cholraeley^. Paxton, 3Bing. 207; d. Richardson, 4 Beav. 176; Mortlock 
 
 5Bing. 48; 3 Russ. 565; 2 Moore & v. Buller, 10 Ves. 311; Thompson v. 
 
 P. 127 ; 10 B. & Cr. 564; Cockerell v. Blackstone, 6 Beav. 470. [See Dawes 
 
 Cholraeley, 1 Russ. & M. 418 ; 1 CI. & v. Belts, 12 Jurist, 709.] 
 Fin. 60; and see Waldo v. Waldo, 12 
 
 ' Power to sell on ground-rent in Pennsylvania, is well exercised by a sale on 
 ground-rent with a clause of redemption in the deed ; and the release must be 
 by the donee of the power. Ex parte Huff, 2 Barr, 227. 
 
698 OF POWBKS OF SALE. 
 
 the sale with a view to advance the particular purposes of one party 
 interested in the execution of the trust at the expense of another 
 party — a court of equity will not enforce the specific performance of 
 the contract, however fair and justifiable the conduct of the pur- 
 chaser may have been. The remedy of the law is open to such 
 a purchaser, but he has no claim to the assistance of a court of 
 equity."(o) 
 
 So in a very recent case, where a trustee 'entered into a contract 
 for the sale of trust property, and it was agreed that the purchaser 
 should retain out of the purchase-money the amount of a private 
 debt due to Mm from the trustee, the Master of the Rolls (Lord Lang- 
 dale) refused to decree a specific performance of this contract on the 
 ground that this on the face of the contract was a breach of trust, 
 and his Lordship allowed a general demurrer to the bill for want of 
 equity, (p) 
 
 _ .^ The power of trustees for sale to purchase the trust estate 
 
 L J themselves *will be reserved for more convenient considera- 
 tion in a future chapter. (5) 
 
 Trustees of an estate in strict settlement with a power of sale may 
 sell to the tenant for life,(r) though this was once doubted.(s) 
 
 It is no objection to the exercise of a power of sale by trustees, 
 that the conveyance is made to a trustee for the purchaser, (i) 
 
 A power of sale, like all other powers, can be exercised only in the 
 mode and subject to the conditions, if any, prescribed by the instru- 
 ment creating the power, (m) Therefore, where the trust is to sell 
 after the death of the tenant for life, a sale in his lifetime will be bad, 
 even though it be made under a decree of the court. (2:)^ And so if 
 
 (0) Ord V. Noel, 5 Mad. 438, 440 ; et (g) Post, Div. II. Ch. III. p. 535 and 
 
 vide Wood v. Richardson, 4Beav. 174, notes. [See ante, p. 158 and note.] 
 
 176; Mortlock v. Buller, 10 Ves. 311, (r) Howard ij. Ducane,T. &R.81. 
 
 312. [Johnson t). Eason, 3 Ired. Eq. (s) 2 Sugd. Pow. 517, 6th edit. 
 
 334.] It) T. & R. 81. 
 
 (p) Thompson v. Blackstone, 6 Beav. («) See Wright v. Wakeford, 17 Ves. 
 
 470. 454. 
 
 (a;) Blacklow v. Laws, 2 Hare, 40. 
 
 '.Sweigartw. Berk's Adm., 8 S. & R. 304; Davis v. Howcott, 1 Dev. & Batt. 
 Eq. 460; Ervines' Appeal, 16 Penn. St. R. 266; Styer v. Freas, 15 Penn. St. R. 
 339 ; even where the tenant for life (widow of the testator) renounces the pro- 
 vision under the will, and claims dower. Jackson ■!;. Ligon, 3 Leigh, 161. So 
 where the sale is to take place at the majority of a legatee. Loomis v. McClin- 
 tock, 10 Watts, 274. But if the person for whose benefit the sale has been post- 
 poned, joins in the execution of the power, before the period fixed, it will be 
 good. Gast V. Porter, 13 Penn. St. R. 535; though see Davis v. Howcott, 1 Dev. 
 & Bait. Eq. 460. If, however, the postponement were with a view to a probable 
 rise in value, it is otherwise. Gast v. Porter. Where the sale is authorized 
 upon the consent of the tenant for life, consent to a decree of sale is sufficient. 
 
OF POWERS OF SALE. 699 
 
 the sale be directed to be made with the consent of the tenant for 
 life, or of any other person, that consent must be obtained before the 
 exercise of the power.(«/) And the court will not decree the specific 
 performance of a contract by the trustees for the sale of the estate, 
 where the required consent had not been given at the time of filing 
 the bill.(2) 
 
 Upon the same principle, where the power of sale is to be exer- 
 cised only on some conditional event — such as the deficiency of 
 another estate to answer certain charges(a) — or upon the purchase 
 
 (2/) Mortlock «. BuUer, 10 Ves. 308; (a) Dike v. Ricks, Cro. Car. 335; 
 
 see Bateman «. Davis, 3 Mad. 98; Culpepper i). Aston, 2 Cha. Ca. 221 ; 2 
 
 Wright V. Wakeford, 17 Ves. 454. Sugd. Pow. 497, 6th edit. ; 2 Sugd. V. 
 
 (2) Adams v. Broke, 1 N. C. C. 627. & P. 48, 9th edit. 
 
 Tyson v. Mickle, 2 Gill. 376. See, as to the effect of an alienation of his estate 
 upon the tenant for life's power of consent, Warburton v. Farn, 16 Sim. 625, 13 
 Jur. 528. 
 
 With regard to a power to sell for debts, upon " a deficiency of personal as- 
 sets," it was held in Coleman v. McKinney, 3 J. J. Marsh. 251, that a sale 
 would be valid though there were a sufficiency of assets at the time. But the 
 opinion of Ch. J. Bronson in Roseboom v. Mosher, 2 Denio, 68, appears rather 
 the other way; and in Graham v. Little, 5 Ired. Eq. 407, where executors were 
 authorized to sell any part of the testator's estate, whenever they might think pro- 
 per to do so, " without any order or decree of court," it was held that they could 
 not sell for the payment of debts, except upon such a deficiency of the personalty. 
 See also Minot v. Prescott, 14 Mass. 495. Where, however, there is a power of 
 sale expressly for the payment of debts, such deficiency neednot be shown ; the 
 presumption being, from the nature of the case, that it existed. Silverthorn v'. 
 McKinster, 12 Penn. St. R. 67. So, if the power to the executors be to sell, "if 
 in their opinion it shall become necessary for the payment of debts and legacies;" 
 the sale under such circumstances being conclusive of the necessity. Roseboom 
 V. Mosher, 2 Denio. 61 ; Lord Rendlesham v. Meux, 14 Simons, 249. If the per- 
 sonal estate be in fact insufficient, executors with a power to sell " on insuffi- 
 ciency of personal assets," must sell, whether they deem it expedient or not. 
 Coleman v. MoKenney, 3 J. J. Marsh. 246. 
 
 A power to sell if the income of real and personal estate be not sufficient to 
 support the testator's wife comfortably, can only be exercised in that event. 
 Minot V. Prescott, 14 Mass. 495. So a power to an agent to sell after redeeming 
 on a sale for taxes, cannot be exercised before redemption. Devinney v. Rey- 
 nolds, 1 W. & S. 332. So where there is a power of sale to discharge an instal- 
 ment of a debt, then due, a sale to discharge that instalment and another not 
 due, is void. Ormsby v. Tarascon, 3 Litt. 411. But, in general, where there is a 
 discretionary power as to the time and mode of the sale in the trustee, it can only 
 be questioned for an absence of good faith. Bunner v. Storm, 1 Sandf Ch. 357; 
 Champlin v. Champlin, 3 Edw. Ch. 59, 7 Hill, 245. 
 
 Where a sale is directed to be made within a certain period, a sale before its 
 expiration, though the conveyance be afterwards, is valid, and the fact may be 
 shown by parol evidence. Harlan v. Brown, 2 Gill, 475. And if the power be 
 also coupled with a trust, a sale after the period fixed will be good. Miller v. 
 Meetch, 8 Barr, 417. But even a discretionary power cannot be exercised after 
 its object has ceased. Slooum v. Slocum, 4 Edw. Ch. 613; Jackson ■;;. Jansen, 6 
 Johns. R. 73 ; Sharpsteen v. Tillon, 3 Cow. 651. 
 
700 OP POWERS OF SALE. 
 
 and settlement of another estate to the same uses(J) — the power 
 cannot be exercised without the literal performance of those condi- 
 tions, (c)^ 
 
 However, as regards purchasers from trustees under powers of this 
 description, there is a material difference, whether the condition, 
 annexed to the exercise of the power, is precedent or subsequent. If 
 it be precedent, its performance is essential for giving existence to 
 the power of sale, and no sale under the power can by possibility be 
 sustained, unless the condition be performed. But where the con- 
 dition is subsequent, the power of sale will attach independently of 
 the performance of the condition, and if the purchaser be expressly 
 or constructively exonerated from seeing to the performance of the 
 trusts, his title would not be affected by the fact that the condition 
 had not been performed. For instance, to select the two conditions 
 just referred to, where the deficiency of the personal estate or SlUj 
 other property is the condition on which the power is to be exercised, 
 that is a precedent condition, which must be satisfied before the 
 power can arise ; consequently it will be incumbent upon a purchaser 
 from the trustees in any case to ascertain that the required defi- 
 ciency had arisen previously to the sale.((i) But where the rein- 
 vestment of the purchase-money is required, that is a subsequent con- 
 dition, and a bona fide purchaser from the trustees will not be affected 
 by its non-performance, if they have a power to give discharges for 
 the purchase-money. (e) 
 
 r*4.7Qn *However, the impolicy and inconvenience of these con- 
 ditional powers is obvious. To adopt Sir E. Sugden's words, 
 "they tend only to expense and trouble in practice, as a purchaser 
 could not, in general, be compelled to complete his purchase without 
 the sanction of a court of equity ; and there are few cases in which 
 he could be advised to accept the title without a decree. It would 
 be much better wholly to omit a power of sale in a settlement, than 
 to ^fetter its operation by requisitions like these. "(/) 
 
 A defective execution of a power of sale will be relieved against 
 in equity in favor of a purchaser, if the defect be merely of a formal 
 character. (^) But no relief will be given where the sale is fraudu- 
 lent, or contrary to the intention of the creator of the power ; as in 
 
 (6) Doe V. Martin, 4 T. R. 39 ; Cox (d) 2 Sugd. V. & P. 48, 9th edit. 
 V. Chamberlain, 4 Ves. 631 ; Burgoigne (e) Roper v. Halifax, 2 Sugd. Pow. 
 V. Fox, 1 Atk. 575 ; Hougham v. San- App. No. 3. 
 dys, 2 Sim. 95, 145. (/) 2 Sugd. Pow. 503. 
 
 (c) 2 Sugd. Pow. 497, 6th edit. (g-) 2 Sugd. Pow. 100, 135, 142, 
 
 517. [4 Kent's Comm. 344.] 
 
 See previous note. 
 
OP POWERS OF SALE. 701 
 
 the cases already considered of a sale for a rent-charge or annuity, 
 or a sale of the estate deprived of the timber.(7i) 
 
 Where the trustees take the legal estate of the property to he 
 sold, coupled with the power of sale, they alone are competent to 
 contract, and to make a good conveyance of the legal and equitable 
 estate to the purchaser, (i) And in like manner, where they take 
 merely a power which operates under the Statute of Uses by revo- 
 king the old uses, and appointing new ones to the purchaser, they 
 can make a good title by the exercise of their power. (A) And the 
 case is the same even where executors take a power of sale by im- 
 plication, from having the distribution of the purchase-money. (Z) 
 
 With regard to the mode in which a trustee should proceed to sell 
 the estate, it has been laid down by Lord Eldon, " that a trustee for 
 sale is bound to bring the estate to the hammer under every possible 
 advantage to his cestui que trusts."{m) Therefore, he will not be 
 justified in damping the sale by unnecessary restrictions in the con- 
 ditions of sale.(w) • 
 
 Although he may properly aflix such reasonable special conditions, 
 as are required by the state of the title. (o) 
 
 So the trustees should use all reasonable diligence to obtain the 
 best price.(p)' And for this purpose, it will be proper for them to 
 have the estate previously valued. (5') 
 
 (fe) Read v, Shaw, 2 Sngd. Pow. App. (m) In Downes v. Grazebrook, 3 Mer. 
 
 29; Reidi;.Shergol(l,10Ves. 381: Cock- 208. 
 
 erell v. Cholmeley, 1 R. & M. 418 ; 2 («) See Wilkins v. Fry, 1 Mer. 268 ; 
 
 Sugd. Pow. 517. [So where all do not 2 Rose, 375. [See, as to the law of 
 
 join. McRea v. Farrow, 4 H. & Munf. conditions of sale, article in 2 Engl. 
 
 444.] Law Review, 81.] 
 
 (i) Sowarsby v. Lacy, 4 Mad. 142 ; (0) Hobson v. Bell, 2 Beav. 17. 
 
 Keon V. Magawly, 1 Dr. & W. 401. (p) Ord v. Noel, 5 Madd. 440 ; Mort- 
 
 (Jc) Sugd. Pow. passim. lock v. BuUer, 10 Ves. 309. 
 
 ll) Tylden v. Hyde, 2 S. & St. 238; (9) Mortlock v. Buller, 10 Ves. 309; 
 
 Forbes v. Peacock, 11 Sim. 152; but Conolly «. Parsons, 3 Ves. 628, n. ; see 
 
 see Blatch v. Wilder, 1 Atk. 420, where Campbell v. Walker, 5 Ves. 680, 1. 
 the heir was directed to join in the con- 
 veyance. 
 
 ' If trustees sell at improper times, or neglect to ascertain the true value of the 
 land sold, they will be held responsible for any deficiency. Quackenbush v. 
 Leonard, 9 Paige, 347. If tjie actual value at the time cannot be ascertained, 
 they will be responsible for the highest value. Ringgold v. Ringgold, 1 Harr. & 
 Gill, 11. But for this, there must be gross negligence; where the trustees act in 
 good faith, they will not be liable beyond the amount actually received. Osgood 
 V. Franklin, 2 John. Ch. 27 ; 14 John. R. 527. In New York, it is held that, in 
 general, a naked power to sell and reinvest, or to sell for a certain sum, can only 
 be exercised by a sale for cash. Waldron v. McComb, I Hill, 111 (see S. C, 7 
 Hill, 335); Ives v. Davenport, 3 Hill, 373. And a sale on personal security, in- 
 deed, is at the trustee's own risk. Swoyer's Appeal, 5 Barr, 377. So a delay to 
 take proper security will render him responsible. Hurtt v. Fisher, 1 Harr. & Gill, 
 
702 OP POWERS OF SALE. 
 
 The contract for sale must not be entered into under circumstances 
 of haste or improvidence, (r) And where there are several cestui 
 que trusts who have conflicting interests, as, for instance, the mort- 
 gagor and mortgagee (where the mortgaged estate is vested in a trus- 
 tee with a power of sale), it will be the duty of the trustee to act 
 r*48fll i^P^'i'tially for the ^benefit of all the parties interested.(«) 
 And notice should be given to all the parties of the intended 
 sale, so that each may take means to secure an advantageous 
 sale.(<) 
 
 (r) Ord u. Noel, 5 Mad. 440. 6 Mad. 10; see Pechel v. Fowler, 2 
 
 (s) Ord V. Noel, 5 Mad. 440 ; Anon. Anstr. 550. 
 
 (0 Anon. 6 Mad. 10. 
 
 88. But a sale, where the purchase-money is secured by mortgage, is believed 
 to be unobjectionable in Pennsylvania, and probably elsewhere ; and by it a 
 better price can generally be obtained. A sale on credit is the usual and autho- 
 Tized course in North Carolina. Stone v. Hinton, 1 Ired. Eq. 15; see Waring j). 
 Darnell, 10 Gill & John. 126. In Pennsylvania, the Orphans' Court cannot direct 
 a sale for the payment of debts otherwise than for cash. Davis's Appeal, 14 
 Penn. St. 372. 
 
 Where a testator directed his executor to sell certain slaves, for the recovery 
 of which an action was then pending on a contract for their purchase, in case 
 he should succeed thereon, and the executor suffered the suit to abate, and sur- 
 rendered all right to the slaves, on receiving back the purchase-money paid by 
 the testator; it was held, that the power was sufficiently exercised, in the absence 
 of proof of any fraud, or improper dealing. Jones v. Loftin, 3 Ired. Eq. 136. 
 
 Trustees are liable to their cestui que trusts for the deposit forfeited by a pur- 
 chaser who neglects to comply with his purchase. Campbell v. Johnston, 1 
 Sandf. Ch. 148. 
 
 ' No particular form of notice is necessary. It is sufficient, if the description 
 of the land is reasonably certain, so as to inform the public of the property to be 
 sold. Newman v. Jackson, 12 Wheaton, 570. In McDermot v. Lorillard, 1 Edw. 
 Ch. 273, it was held, that the New York Revised Statutes, which formerly re- 
 quired an advertisement on a sale by executors under a power in a will, did not 
 apply where the time and mode of the sale were left expressly to their discretion. 
 Under a statute which requires a certain number of days' notice before a sale, 
 the advertisement must be on every day during that time. Stine v. Wilkison, 10 
 Missouri, 75. Where due advertisement is required by the trust deed, it lies on 
 the parties insisting on the validity of the sale, to show that this was complied 
 with. Gibson v. Toner, 5 Leigh, 370. In Minuse v. Cox, 5 John. Ch. 447, how- 
 ever, Ch. Kent was of opinion, that want of notice would not affect the tide of 
 the purchaser; but that the trustee would be liable for the deficiency in price. 
 The purchaser, indeed, cannot raise the objection to free himself from the con- 
 tract. Greenleaf D. Queen, 1 Peters, S. C. 145; see Beebe v. De Baun, 3 Engl. 
 Arkansas, 567. See further, as to notice, Johnson v. Dorsey, 7 Gill, 269 ; Gibbs 
 V. Cunningham, 1 Maryl. Ch. Dec. 44. 
 
 A power to sell is well exercised by a parol sale, or by a sale under articles. 
 Silverthorn f . McKinster, 12 Penn. Stat. R. 67 ; Taylor v. Adams, 2 S. & R. S34. 
 A power of sale includes every interest existing at the time, even a reversion 
 on an estate tail of little value. Mortimer v. Hartley, 6 Exch. 47 ; and see Bur- 
 ton V. Smith, 13 Peters, 464. But it will not extend to lands acquired after the 
 
OF POWERS OF SALE. 703 
 
 In the absence of any express directions in the power, the trus- 
 tees may sell, either by public auction, or private contract, as cir- 
 cumstances may render it necessary, or most advantageous for the 
 trust estate.(M) And, after an ineffectual attempt to sell by auction, 
 they may have recourse to a sale by private contract.(a;) This was de- 
 cided with regard to the assignees of an insolvent, who are expressly 
 directed by the Insolvent Act (7 Geo. IV. c. 57, s. 20) to sell hy 
 auction. The decision, therefore, applies, a fortiori, to the case of 
 trustees to whom no mode of sale is expressly prescribed.^ 
 
 (u) Ex parte Dunman, 2 Rose, 66 ; [See 3 Martin's Conveyan. 290, note 
 
 Ex parte Hurly, 1 D. & Ch. 631; Ex (6).] 
 
 parte Ladbroke, 1 Mont. & A. 384 ; but (a;) Mathers v. Prestman, 9 Sim. 352. 
 see Ex parte Coding, 1 D. & Ch. 323. 
 
 date of the will. Koney v. Stltz, 5 Whart. 381; Meader v. Sorsby, 2 Alab. 716 ; 
 Peck V. Peck, 9 Yerg. 30 1 ; see Stiers v. Stiers, 1 Spencer, 52. So a power in a 
 codicil to sell lands "not particularly devised by will," cannot be exercised over 
 lands acquired between the making of the will and the codicil. Peck v. Peck, 
 ut supr. Where the land is in adverse possession at the time, the power cannot 
 be exercised in those States in which the statutes of Champerty and Mainte- 
 nance are in force, on that ground, and also because of the cloud on the title. 
 Ibid. But in such case, it seems that Chancery would take jurisdiction of a bill 
 to remove trespassers, in order to enable the trustee to sell. Henderson d. Peck, 
 3 Humph. 247. 
 
 A stranger, or wrong-doer, cannot object to irregularities in the sale. Hillegas 
 V. Hillegas, 5 Barr, 97; Casy v. Colvin, 11 Alab. 514. Nor where the cestui que 
 trusts waive them, can the purchaser refuse to complete his bargain on account 
 thereof Greenleaf v. Queen, 1 Peters, S. C. 146 ; Schenck v. Ellingwood, 3 
 Edw. Ch. 175. There is, indeed, in favor of meritorious claimants, a general 
 presumption, in the first instance, that the power has been legally exercised. 
 Marshall v. Stephens, 8 Humph. 159. 
 
 ' In Pennsylvania, it has been held, that a private sale by a trustee, or execu- 
 tor, under a power, is void. McCreary v. Hamlin, 7 Barr, 87 ; Elleti;. Paxson, 2 
 W. & S. 418; see Ashurst v. Ashurst, 13 Alab. 781; but see Ban v. McEwen, 
 Baldwin, C. C. 154. But this is now remedied by Acts of 1849, 1850; Dunlop, 
 1019, 1072. Where the trust deed expressly requires a public sale, that must be 
 followed, or the sale will be ineffective. Greenleaf •«. Quean, 1 Peters, 145. In 
 Minuse v. Cox, 5 J. C. R. 441, however, it was held, that a power to sell at 
 auction, or otherwise, in whole, or in parcels, on giving three weeks' notice, 
 authorized a private sale, and without any notice. And in Tyson v. Mickle, 2 
 Gill, 383, where trustees, appointed to sell at public sale, were unable, after un- 
 usual efforts, to obtain a purchaser at the minimum price, it was held, that a 
 bona fide private sale, though for less than the public offer, was valid : Gibbs v. 
 Cunningham, 1 Maryl. Ch. 44; Gibson's Case, 1 Bland. 138, accord; see Beebe 
 V. De Baun, 3 Engl. Ark. 567. A power to sell at auction is duly exercised 
 where the property has been advertised, and an offer sent in by letter, which, ex- 
 ceeding any bid when the property is actually put up for sale, is accepted. Tyree 
 V. Williams, 3 Bibb. 367. In New York, by the Revised Statutes (part II., Ch. 
 16, tit. 4, } 60), sale? under a power may be either public or private (unless 
 otherwise directed) ; u,nd on such terras as shall be, in the opinion of the execu- 
 tor, most advantageous. As to the sales of personal estate, in the absence of 
 
704 OF POWERS OF SALE. 
 
 However, a sale by auction is the most usual, as it is unques- 
 tionably the safest course for the trustees to adopt. For, in that 
 case, no question can be raised against them for the inadequacy of 
 price ;(?/) whereas, in case of a sale by private contract, it would be 
 very hazardous for the trustee to let the estate go at a price less than 
 that at which it had been valued. (2) 
 
 Trustees have no authority to buy in the property after it has been 
 put up for sale, unless that authority be given them by the terms of 
 the power. Thus, in a late case, the trustees of a will, at the re- 
 quest of one of the cestui que trusts, bought in the property, for 
 which 6,000Z. hact been bid, and shortly afterwards they refused 
 6,600?. ; it was subsequently sold for 3,500?., and the trustees were 
 held responsible for the difference in price.(a) The same point had 
 frequently been so decided with regard to assignees in bankruptcy.(J) 
 
 The estate may be sold in lots, or partly at one time and partly at 
 another, if such a course be most advisable, (e)^ 
 
 Trustees for sale are chargeable with auction duty, in the same 
 manner as other vendors.(£^) 
 
 iy) Ord V. Noel, 5 Mad. 440; Taylor (a) Taylor v. Tabrum, 6 Sim. 281. 
 V. Tabrum, 6 Sim. 281. [See Johnson (t) Ex parte Lewis, 1 Gl. & J. 69; 
 
 V. Dorsey, 7 Gill, 269 ; Hunter v. Stin- Ex parte Buxton, lb. 355 ; Kx pane Bal- 
 
 gel, 1 Maryl. Ch. Dec. 283.] dock, 2 D. & Ch. 60. 
 
 («) See Conolly v. Parsons, 3 Ves. (c) Ord u. Noel, 5 Mad. 438; Ex parte 
 
 628, n.; Morllock v. BuUer, 10 Ves.292, Lewis, 1 Gl. & J. 69; Co.Litt , 113, a. 
 309. ' (d) King V. Winstanley, 8 Price, 180. 
 
 the property to be sold, see Foster v. Gofee, 5 Alab. 428 ; Beebe v. De Baun, 3 
 Engl. Ark. 567. 
 
 ' Stall «. Macalester, 9 Ohio, 19; Grave v. Shaw, 14 Missouri, 341; Delaplaine 
 V. Lawrence, 3 Comstock, 301 ; see Ewing v. Higby, 7 Ohio, 198. In Thomas 
 V. Townsend, 13 Eng. L. & Eq. 294, trustees having power to sell land, in order 
 to raise £600, and expenses, put it up to sale in two lots, and sold the first for 
 £600, and the second for £500. The second lot contained more than three acres, 
 and was described in the particulars of sale as readily convertible into building 
 ground. It was held, that the sale of the second lot was proper, as the trustees 
 could not know beforehand the amount which the first would bring. But, under 
 an order of court, directing the sale of land for the payment of a debt, a sale 
 of more than is necessary for the purpose, by the executor, is void. Wakefield 
 V. Campbell, 20 Maine, 393 ; see Davis' App., 14 Penn. St. R. 372. On the other 
 hand, under such an order, the executor cannot sell in smaller quantities than 
 is necessary. Quarles v. Lacy, 4 Munford, 251. 
 
 Where a lot was advertised at a trustees' sale, as containing a specified num- 
 ber of acres, and the purchaser bid so much per acre, it was held to be a sale 
 by the acre, and he was allowed for a deficiency. Brown v. Wallace, 4 Gill & 
 John. 479. 
 
 There is no implied warranty at a trustees' sale of lands or personalty. Mock- 
 bee V. Gardner, 2 Harr. & Gill, 176 ; Worthy v. Johnson, 8 Georgia, 236 ; Sutton 
 V. Sutton, 7 Gratt. 234. As to the covenants of trustees, see ante, 281, note. 
 
OF POWERS OP LEASING. 705 
 
 II. — OF POWERS OF LEASING. 
 
 In exercising a power of granting leases, trustees must confine them- 
 selves strictly within the limits of their authority ; and any deviation 
 from it in the nature or term of the leases granted, will be treated as 
 a breach of trust, (e) Thus, where the trust requires the leases to be 
 in possession, and not in reversion, or where it forbids the taking of 
 any fine or premium from the lessee, a reversionary lease, or one for 
 which a fine is paid, is improper, and will be set aside by the court 
 on the application of the cestui que trust.{fy 
 
 *And such a lease will not be confirmed by the acceptance r-^.r,^-, 
 of the rent by the parties beneficially interested, though con- ^ -' 
 tinned for several years, unless they were aware of the imperfection 
 of the lease.(5f) 
 
 And although the whole legal estate is vested in the trustees, so 
 that the lease, taking efi'ect out of their legal interest, is valid at law, 
 yet it will be relieved against in equity, if it be contrary to the terms 
 of the equitable power.(A) 
 
 It scarcely comes within the scope of the present work to consider 
 at large the construction of the usual powers of leasing, and the na- 
 ture and terms of the leases, which are authorized by such powers ;{i) 
 but it may be convenient here to state generally the result of the 
 principal decisions on this subject. 
 
 Where the power is confined to lands usually let, or requires the 
 usual rent to be reserved, it will a^flj prima faeie only to such lands 
 
 (e) Bowes v. East London Water power is incapable of confirmation at 
 
 Works Company, 3 Mad. 375, 383. law : Sinclair v. Jackson, 8 Cowen, 
 
 (/) Bowes V. East London Water 588.] 
 
 Works Company, 3 Mad. 375; and S. (A) Ibid. 
 
 C. Jac. 324. (i) 2 Sugd. Pow., chap. 17, p. 326, 
 
 (g) Ibid. [A void lease under a 6th edit. 
 
 ' See on this subject, Doe v. Burrough, 6 Q. B. 229; Doe v. Stephens, Id. 208; 
 Doe V. Williams, 11 Q. B. 688 ; Doe v. Lord Kensington, 8 Q. B. 429 ; Doe v. 
 Courtnay, 11 Q. B. 932; Doe v. Hole, 15 Q. B. 848; Sheehy v. Lord Muskarry, 
 1 H. Lords' Cas. 576; Dyas v. Cruise, 2 Jones & Lat. 460; Doe v. Ferrand, 15 
 Jur. 1061 ; 20 L. J. (C. P.), 202 ; Leigh v. Earl of Balcarres, 6 C. B. 847. And 
 see now the Act of 12 & 13 Vict. ch. 26, amended by the Act of 13 & 14 
 Vict. 0. 17 (13 Jur. pt. ii. 343, 14 Id. 335), by which defective leases under a 
 power are to be treated as contracts in equity for such leases as might have been 
 granted under the power; and certain acts, &c., by the grantors, or reversioners 
 to be treated as confirmations. 
 
 As to when a power to lease is implied under a power to sell, see ante, 476. 
 Where a testator directed that his widow should " cultivate as much of his land, 
 during her life, or widowhood, as she pleases," and " the balance " was to be 
 rented out by his executors, the power of leasing was held to extend to the whole 
 estate, on the determination of the life estate. Hoyle v. Stowe, 2 Devereux, R. 3 18. 
 
 45 
 
706 OF POWEKS OF LEASING. 
 
 as have been generally leased,(A;) although that construction may be 
 relaxed, ■where the general intention of the settlement requires 
 
 it.(0^ 
 
 A power to lease all the lands generally will not authorize a lease 
 of unopened mines ; although mines already opened may be leased 
 under a general po'wer.(«i) 
 
 A power to lease for lives ■will not authorize a lease for years de- 
 terminable upon lives,(w) but under a general power, to lease for any 
 term not exceeding twenty-one years or three lives, such a lease may 
 be granted.(o) 
 
 A po^wer to grant leases for two or more lives, implies an authority 
 to grant them during the life of the survivor, (p) But in granting a 
 lease for lives, the lives must be in esse,{q) and must be all concur- 
 rent.(r) Where the power is to lease for three lives, one granted for 
 two lives only will be good.(s) 
 
 So ■where there is a power to grant leases for any specified number 
 of years, or for any term not exceeding a certain specified number, 
 a lease for a less term than the one specified, is a good exercise of 
 the power.(i) But of course a lease for a longer term will not be 
 proper ; although it seems that such a lease might be supported to 
 the extent limited by the power, and that the excess only would be 
 void. For instance, it has been held, that where the power is to 
 
 (i) 2 Roll. Abr. 261, pi. 11, 12; 2 (ra) Whitlock's case, 8 Rep. 69, b; 
 
 Sugd. Pow. 339; Earl of Cardigan v. 1 Sugd. Pow. 514; 2 Id. 354. 
 
 Montague, Id. App. 14; see Orby v. (o) 2 Sugd. Pow. 354. 
 
 Mohun, 2 Vera. 531; S. C. Prec. Ch. Ip) Doe «. Hard wicke, 10 East, 549; 
 
 257. 2 Sugd. Pow. 364. 
 
 (Z) Goodtitle v. Funucan, Dougl. 565 ; (5) Raym. 263. 
 
 2 Sugd. Pow. 349. (r) Doe v. Halcombe, 7 T. R. 13; 2 
 
 (m) Campbell v. Leach, Ambl. 740. Sugd. Pow. 364. 
 
 [See Leigh v. Earl of Balcarres, 6 Com. {s) 2 Sugd. Pow. 365. 
 
 Bench, 847.] [t) Isherwood v. Oldknow, 3 M. & 
 
 S. 382; 1 Sugd. Pow. 520; 2 Id. 355. 
 
 ' Lands were devised for life, with remainder over, with a power to the tenant 
 for life to lease in possession or reversion, for one life or for two or three lives, 
 or for any term or number of years determinable upon one life, or two or three 
 lives, any part of the premises usually so leased. It was held that the joining of 
 lands in the same lease, which were usually let separately, was not at variance 
 with the power; the words " usually so leased" applying only to the duration of 
 the lease: Doe v. Stephens, 6 Q. B. 208; Doe v. Williams, 11 Q. B. 688. Where 
 a power to lease provides that the power to lease shall contain all " usual and 
 reasonable covenants," the general rule is to take as a guide the lease in exist- 
 ence at the time of the creation of the power: Doe v. Stephens, ut supra. But 
 where there has been an ancient and uniform custom, and a single lease vat^ng 
 therefrom has been granted just before the creation of the power, the exceptional 
 lease is not to govern merely because it is the latest : Doe v. Hole, 15 Q. B. 848. 
 
OF POWERS OF LEASING. 707 
 
 lease for ten years, and a lease is granted for twenty years, the grant 
 will be good as a lease for ten years, (w)^ 
 
 A general power of leasing authorizes the grant of a lease in pos- 
 session only, and not one in reversion. (a;)^ 
 
 *Where the length of the term to he granted is not defined p^ - gn-, 
 by the power the trustee must be guided by the consideration L -J 
 of what is most beneficial to the trust estate. At law such a power 
 may be exercised to its fullest extent by granting a lease for the 
 longest term.(t/) But in equity the trustees take the power coupled 
 with a trust, and in exercising it, they must act precisely as if the 
 estate was given to them in trust to let.(s)' 
 
 Where the legal fee is vested in the trustees, they have at law the 
 power of granting leases to any extent as incident to the legal estate ; 
 and if the duties of the trustees require them to be invested with the 
 control and management of the trust estate, they may even in equity 
 grant valid leases of the trust property upon such reasonable terms 
 and for such periods as they may consider most beneficial; and such 
 leases would take eifect out of the legal interest in the trustees, and 
 
 («) Pawcey^. Bowen, 1 Ch. Ca. 23; {y) Muskerry u. Chinnery, LI. & G. 
 
 3 Ch. Eep. 11. 185; 1 Sugd. Pow. 548. 
 
 {x) Ly. Sussex v. Worth, Cro. Eliz. (z) Sutton v. Jones, 15 Ves. 587, 8. 
 5; 2 Sugd. Pow. 370. 
 
 ' It would, however, be bad at law, and could not be set up in ejectment 
 against the holder of the legal title: Sinclair v. Jackson, 8 Cowen, 5S1. So 
 where lands within a power are joined with others not within it, at one rent, the 
 whole is bad: Doe v. Stephens, 6 Q. B. 208. 
 
 ^So in Sinclair ■«. Jackson, 8 Cowen, 581, it was strongly doubted whether a 
 lease under a power to lease for a given number of years, could be. made to 
 commence after the expiration of a subsisting term, and it was decided that, if 
 it could, the terra granted by the new lease, and 'the residue of that which was 
 subsisting, must not, when coupled together, exceed the time limited by the 
 power. 
 
 ' In the case of Black v. Ligon, Harper's Eq. 205, the trustees of a charity 
 were under an express prohibition against selling or alienating the land. It was 
 held under the circumstances, that a power to lease was implied; and a lease 
 for ninety-nine years, without any annual reservation of rent, and for a gross 
 sum, payable in eight years, was valid. The power had been exercised in good 
 faith, and valuable improvements made by the lessee. This decision, however, 
 was against the opinion of Chancellor Desaussure, and is disapproved by Chan- 
 cellor Kent, 4 Comm. 107. 
 
 By the Rev. Statutes of New York, Pt. II. Art. 3, Sec. 73, 87, &c., a power 
 may be granted to a tenant for life, to make leases for not more than twenty-one 
 years, and to commence in possession during his life. This power is appendant 
 to the estate, and passes with it, on a conveyance. In Haxtun v. Corse, 2 Barb. 
 Cli.'506, it was held that if an authority given to executors to lease out land till 
 it could be sold, would have the effect of suspending the absolute power of alien- 
 ation beyond the time allowed by law, it is void, though the power of sale 
 would not be affected. 
 
708 OP POWERS OP CHANGING SECURITIES. 
 
 independently of any power in the trust instrument, and could only 
 be impeached on the ground that they are unreasonable or preju- 
 dicial to the interests of the cestui que trusts.[a) Thus in Naylor v. 
 Arnitt,(i) it was held, that trustees of real estate under a will, in 
 trust to pay two annuities out of the rents and profits, could grant a 
 valid lease of the lands for a term of ten years. (6) 
 
 And upon the same principle it is conceived, that a lease for the 
 usual term of twenty-one years, which contains no extraordinary 
 covenants, might be safely granted by trustees of settled real estate, 
 either in exercise of a general indefinite power of leasing, or by 
 virtue of their interest only, without any express power. But any 
 unusual lease, such as a building lease for ninety-nine years, could 
 not be safely granted or accepted under such circumstances, except 
 under the sanction of the court.(c) 
 
 A purchaser of a leasehold interest will be affected with con- 
 structive notice of any circumstances appearing on the face of it, 
 which may invalidate it in equity, (t^ As is the case of a party pur- 
 chasing a lease of charity estates granted for an absolute term of 
 200 years. (e) Although it is otherwise where the facts invalidating 
 the lease do not necessarily appear on its face.(/) 
 
 A power of granting building leases for long terms will not be 
 inserted in a settlement, which is made in execution of articles au- 
 thorizing the introduction of powers for leasing for twenty-one years, 
 and other usual powers.(^) 
 
 III. — OF POWERS OF CHANGING SECURITIES, 
 
 The exercise of a power to vary the existing securities, must 
 necessarily be left very much to the discretion of the trustees ; but 
 the court will not suffer this discretion to be mischievously or ruin- 
 ously exercised.(A) 
 
 Where any check is imposed upon the trustees by requiring the 
 previous consent of the tenant for life, or his consent in writing, or 
 l-^._„-.the observance *of any other formality, the power will be 
 L J improperly exercised, unless the required condition is strictly 
 performed.(t) 
 
 A power of this description is given to the trustees for the security 
 
 (a) Bowes v. East London Water (g-) Pearse v. Baron, Jac. 158. 
 
 Works Company, Jac. 329. (A) De Manneville v. Crompton, 1 
 
 (&) Naylor «. Arnitt, 1 R. & M. 501. V. & B. 354-9. 
 
 (c) See Pearse v. Baron, Jac. 158. (i) 1 V. & B. 359; Cocker i). Quaile, 
 
 Id) Walter v. Maunde, 1 J. & W. 1 R. & M. 535; Greenwood d. Wake- 
 
 181; Cesser 1). Collinge,3 M. &K. 283. ford, 1 Beav. 579; Kelliway v. Johnson, 
 
 (e) Att.-Gen.ij. Pargeter, 6 Beav. 150. 5 Beav. 319. 
 
 (/) Att.-Gen. v. Backhouse, 17 Ves. 
 283, 293. 
 
OF POWERS OF CHANGING SECURITIES. 709 
 
 and benefit of the trust property •,{k) and it ought not to be exercised, 
 except when required by necessity or convenience,(Z) and after due 
 inquiry and circumspection. (m)^ Therefore the trustees should have 
 an immediate and advantageous reinvestment in contemplation, be- 
 fore they dispose of the existing securities ;(w) and a sale for the 
 mere purpose of converting real estate into personal, would render 
 them responsible for any loss.(o) And it is the duty of the trustees 
 to ascertain by inquiry the propriety and reality of the proposed re- 
 investment, and not to trust blindly to the assurances of their acting 
 co-trustees on these points.(^) Pending the reinvestment of the 
 fund, the trustee will be justified in laying it out in the purchase of 
 Exchequer bills, (j) 
 
 A general poAver of varying the securities does not enable the 
 trustees by the exercise of the power to vary or afi'ect the relative 
 rights of the cestui que trusts. Thus where a testator made a spe- 
 cific bequest of a sum in the long annuities, producing 365?. per 
 annum, in trust for his wife for life with remainder over, and gave 
 the trustees the usual power of varying the trust securities, it was 
 held by Sir J. Leach, V. C, that this power did not enable the trus- 
 tees to diminish the income of the tenant for life, and increase the 
 value of the gift to the remainderman, by disposing of the long an- 
 nuities, and laying out the money in the three per cents. (r) And on 
 the same principle it would follow that the relative interests of the 
 cestui que trusts, or their real or personal representatives, could not 
 be afiiected by a change of real estate into personal, or vice vetsd.{s) 
 
 A general authority for trustees to invest and vary the securities, 
 empowers them to do all acts essential to the performance of that 
 trust : and therefore it necessarily enables them to give sufficient dis- 
 charges to the borrowers of the trust-money without the concurrence 
 of the persons beneficially interested.(«) 
 
 Where trustees have a discretionary power of changing the invest- 
 ments of the trust fund, with the consent of the tenant for life, the 
 court will not compel them to exercise that power at the instance of 
 the tenant for life, if they refuse to do so in the bond fide exercise 
 of their discretion. Thus in a recent case, certain sums of stock 
 were vested in the trustees of a marriage settlement upon the usual 
 
 (k) Lord V. Godfrey, 4 Mad. 459. (p) Hanbuiy v. Kirkland, 3 Sim. 265 ; 
 
 (/) Broadhurstu.Balguy, 1N.C.C.28. Broadhurst «. Balguy, 1 N. C. C. 16. 
 
 (m) Hanburyu. Kirkland, 3 Sim. 271. (5) Matthews v. Brice, 6 Beav. 239. 
 
 («) 1 N. C. C. 28, and see Watts v. (j) Lord v. Godfrey, 4 Mad. 455. 
 Girdlestone, 6 Beav. 188, 190. (s) See Walter v. Maunde, 19 Ves. 
 
 (0) Brice v. Stokes, 11 Ve.?. 324; 424. 
 Meger-u. Montriou, 5 Beav. 146. (J) Wood v. Harman, 5 Mad. 368. 
 
 ' See Worraely V, Wormely, 1 Brooken. 330; 8 Wheat.421, ante, page 474,note. 
 
710 OF POWERS OF CHANGING SECURITIES. 
 
 trusts to invest in the funds or real securities, with the consent of the 
 tenant for life, and to be varied from time to time with the same con- 
 sent. There was also a proviso, declaring that it should be lawful for 
 the trustees, with the consent of the tenant for life, to invest the 
 whole or any part of the moneys to be produced by the sale of the 
 existing securities in the purchase of freehold or copyhold lands, or 
 r*484T *°^ leaseholds having not less than sixty years to run. The 
 tenant for life applied to the trustees to invest in leaseholds 
 having nearly ninety years to run. One of the trustees was willing 
 to do so, but the other refused, although the security was ample, and 
 a bill was then filed to have the refusing trustee removed, on account 
 of his unreasonable refusal. But it was held by Vice- Chancellor 
 Knight Bruce, that the power was purely discretionary, and had not 
 been corruptly exercised, and consequently that the court could not 
 interfere, (w)' 
 
 But it will be otherwise, where the exercise of the power is made 
 imperative on the trustees by the terms of the trust. For instance, 
 in a late case at the Rolls, certain trust funds were vested in trus- 
 tees of a marriage settlement upon the usual trusts to invest in 
 government or real securities, for the benefit of the husband and 
 wife, and their children, and there was a subsequent proviso, that it 
 should be lawful for the trustees, " and they were thereby authorized 
 and required " by and with the consent and direction in writing of 
 the cestui que trusts for life, to sell and call in the existing securities, 
 and with the like consent and direction, to invest in the purchase of 
 freehold, copyhold, or of leasehold hereditaments for a term not less 
 than sixty years. The tenants for life required the trustees to invest 
 in the purchase of certain leaseholds of more than sixty years' dura- 
 tion, and upon the trustees refusing to do so, a suit was instituted to 
 compel them. The Master of the Rolls (Lord Langdale) reluctantly 
 made a decree, declaring it to be imperative on the trustees to invest 
 in the purchase of the leaseholds. But his Lordship added, that the 
 trustees were fully entitled to refuse to make the investment without 
 the sanction of the court, and that they were also entitled to every 
 
 (u) Lee V. Young, 2 N. C. C. 532. 
 
 ' Where a testator, possessed of a large personal estate, consisting of various 
 foreign securities, bequeathed to his trustees so much of his personal estate, as 
 should at his death, produce a certain income ; and he directed that the same 
 should be selected, and appropriated, and set apart, as soon as conveniently 
 might be after his decease, by his trustees, in their uncontrolled discretion, and 
 the trustees refused to exercise the discretion ; it was held by the House of Lords, 
 affirming the decision of Lord Cottenhara, on bill filed by the annuitant, that the 
 court could not exercise any discretion in the matter, but must follow its com- 
 mon rule, and order the investment in the three per cents. Prendergrast v. Pren- 
 dergrast, 3 Engl. L, & Eq. 1 ; 3 H. L. Cas. 195. 
 
OF DISCRETIONARY POWERS. 711 
 
 assistance and protection in ascertaining the title to the proposed 
 purchases, and in satisfying themselves that they were not of pre- 
 carious value or attended with any onerous or objectionable obliga- 
 tions, (a;) 
 
 But even where the power is framed in such terms, that its exer- 
 cise in a proper case would be imperative on the trustees, yet they 
 will not be bound to exercise it, if there have been such a change of cir- 
 cumstances, as could not have been in the contemplation of the par- 
 ties at the time of the creation of the trust. For instance, in a late 
 case the trustees of a marriage settlement were empowered and re- 
 quired upon the request in writing of the wife, to lend part of the 
 trust funds to the husband, on his personal security. The husband 
 took the benefit of the Insolvent Act, and the wife afterwards made a 
 written application to one of the trustees to advance part of the 
 trust-moneys to her husband, which the trustee refused to do. A 
 bill was then filed by the wife to have the trustee removed from the 
 trust, on account of his refusal, but it was held by the Vice-Chan- 
 cellor (Knight Bruce) that the insolvency created so total a change 
 in the circumstances and position of the husband, that the clause in 
 the settlement ceased to have any effect, and that the trustee did his 
 duty in refusing to lend the money. There had been some improper 
 conduct on *th<».part of the trustee in other respects, on which ^^ ,oj.-, 
 account the dismissal of the bill was without costs, (y) •- -^ 
 
 A power to change the securities is a usual and proper power, and 
 as such, will be properly inserted in a settlement made under arti- 
 cles, which direct the insertion of all usual and customary powers. (s) 
 
 IV. — OP DISCRETIONARY POWERS. 
 
 The term "discretionary power" carries with it its own meaning. 
 Wherever an authority is given to trustees, which it is either not com- 
 pulsory upon them to exercise at all, or if compulsory, the time or 
 manner, or extent of its execution is left to be determined by the 
 trustees, that is obviously a discretionary power, though the extent 
 and nature of the discretion may vary in each case. The powers 
 already discussed in the preceding heads of this section are also to a 
 certain extent discretionary, but their character rendered it more 
 convenient to make them the subject of separate consideration. 
 
 A discretionary power may be conferred on trustees either by the 
 
 (z) Beauclerk u Ashburnham, Eolls, C. 618, 19 ; [and Prendergrast v. Pren- 
 15th and 26th Feb., 1845, MS. [8 Beav. dergrast, 3 Engl. L. & Eq. 1.] 
 322] ; and see Boss v. Godsall, 1 N. C. (y) Boss v. Godsall, 1 N. C. C. 617. 
 
 (z) Sampayo v. Gould, 12 Sim. 426. 
 
712 OP DISCKBTIONAEY POWERS. 
 
 express terms of the trust, or by implication from the nature of the 
 duty imposed on them.' 
 
 An express discretionary power may either apply to the doing, or 
 abstaining from doing, a contemplated act. As where the trustees 
 are empowered to do the act, — or it is directed to be done " if" the 
 trustees "should think fit," {a) or " proper "{b) or "at their discre- 
 tion." {c) Or, again, the performance of the act may be rendered 
 imperative by the trust, and the discretion of the trustees confined 
 to the time or mode of performing it, or to the selection from 
 amongst several objects. For instance, where a trust fund is directed 
 to be paid or distributed "when" or "in such manner" or " pro- 
 portions "{d) in favor of " one"{e) or "such one or more"[f) of 
 several objects, as the trustees shall appoint. 
 
 Again, a discretionary power may be created by necessary impli- 
 cation from the nature of the act to be done by the trustee — as where 
 it calls for the exercise of judgment and discretion in its performance. 
 For instance — where the approbation or consent of the trustees is 
 required to a settlement, or sale, or marriage,(^) or where they are 
 required to decide upon the good or ill conduct of a party ;(^) or 
 upon the necessity or expediency of any particular act or payment.(i) 
 Thus, in French v. Davidson,(A) the trustees were directed to pay an 
 annuity, " unless circumstances should render it unnecessary, inex- 
 pedient, and impracticable ;" *and Sir J. Leach, V.' C, said, 
 L -I that must mean " should, in their opinion, render it unneces- 
 sary," &c. 
 
 In some of the earlier eases, where trustees neglected or refused 
 to exercise the discretionary powers vested in them, the court itself 
 
 (o) Maddison v. Andrew, 1 Ves. 53. (j/) Duke of Marlborough v. Godol- 
 
 (6) Crossling v. Crossling, 2 Cox, phin, 2 Ves. 61; Grant v. Lynam, 4 
 
 396 ; Kemp v. Kemp, 5 Ves. 849 ; Long- Russ. 292. 
 
 more v. Broom, 7 Ves. 124; Pink v. De (g-) Brereton v. Brereton, 2 Ves. 87, 
 
 Thuisey, 2 Mad. 157. cited; Clarke v. Parker, 19 Ves. 1; 
 
 (c) Morice v. Bishop of Durham, 9 Mortlock v. BuUer, 10 Ves. 314. 
 
 Ves. 399; Keates v. Burton, 14 Ves. Qi) Walkers. Walker, 5 Mad. 424; 
 
 434; Potter t>. Chapman, Ambl. 98; Robinson w. Smith, 6 Mad. 194; Eaton 
 
 Gibbs V. Rumsey, 2 V. & B. 294. i;. Smith, 2 Beav. 236. 
 
 (d) Duke of Marlborough v. Godol- (i) French v. Davidson, 3 Mad. 396 ; 
 phin, 2 Ves. 61; Walsh d. Wallinger, Gower ^. Mainwaring, 2 Ves. 87. 
 
 2 R. & M. 78. (Jc) 3 Mad. 402. 
 
 (e) Brown v. Higgs, 4 Ves. 708. 
 
 I In Downer v. Downer, 9 Vermont, 231, where there was a bequest to be ap- 
 plied to the benefit of the cestui que trusts, as should be found necessary "in the 
 judgment and discretion of the Judge of Probate, of the District of Hartford," it 
 was held that in the exercise of the discretion and judgment confided to him, the 
 Judge of Probate acted personally, and not ofBoially, and that no appeal lay 
 from his decision in the matter. 
 
OF DISCRETIONARY POWERS. 713 
 
 assumed that discretion, and exercised the power in the manner 
 which it conceived to be most beneficial for the cestui que trusts.{l) 
 
 However, this jurisdiction has been long since repudiated ; and it 
 is settled that the court will never exercise a mere discretionary 
 power,' either in the lifetime of the trustees, or upon their death or 
 refusal to act.(m) Although, where a trust is created for a certain 
 class of objects, and the discretionary power applies only to the se- 
 lection from, or distribution amongst those objects, the court, while 
 it disclaims the exercise of the discretion reposed in the trustees, will, 
 if necessary, enforce the performance of the trust by decreeing the 
 distribution of the property amongst all the objects equally.{n) 
 
 And an exception must be made to this general rule in the case of 
 a charity : for the court, upon the death or refusal of the trustees, 
 will exercise a discretionary power of administering a charity estate, 
 by virtue of its general jurisdiction to govern and regulate chari- 
 ties, (o) 
 
 A distinction was taken on one occasion by Sir J. Leach, V. C, 
 between a discretion given to a trustee to be exercised on a matter 
 of opinion and judgment, and one to be exercised on a matter of 
 fact. In the former case, his Honor held, that the court could not 
 substitute the Master for the trustee, but in the latter that the court 
 would refer it to the Master. In Walker v. Walker(p) (the case 
 alluded to), a testator gave unto three trustees, their executors, ad- 
 ministrators, and assigns, a freehold estate, upon trust to permit and 
 suffer the plaintiff, during his natural life, to receive and apply all 
 the benefit and advantage thereof to his own proper use and benefit, 
 and "in case the conduct and behavior of the plaintiff after the tes- 
 tator's decease should be, and continue to be for not less a time than 
 the space of seven years, at the least, from and after the testator's 
 decease, to the entire satisfaction and approbation of the said three 
 trustees, agreeing, and signifying their unanimous approbation of 
 the conduct and behavior of the plaintiff for the space of seven 
 
 (/) Wareham v. Brown, 2 Vern. 153; waring, 2 Ves. 88 ; Brereton v. Brereton, 
 
 Warburton v. Warburton, Id. 420; 1 Ibid, cited; Potter u. Chapman, Arabl. 
 
 Bro. P. C. 34; Carr v. Bedford, 2 Ch. 98; see Lee v. Young, 2 N. C. C. 532. 
 
 Rep. 77; Hewit v. Hewit, Ambl. 508; [See Prendergrasti).Prendergrast, stated 
 
 Gower 1). Mainwaring, 2 Ves. 87, 110; ante, 484, note.] 
 
 Clarke u. Turner, 2 Freem. 198; Wain- (n) Gibson v. Kinfen, 1 Vern. 66; 
 
 Wright V. Waterman, 1 Ves. jun. 311; Kemp v. Kemp, 5 Ves. 849; Longmore 
 
 Flanders v. Clark, 1 Ves. 10. [See d. Broom, 7 Ves. 124; Brown i;. Higgs, 
 
 Armstrong!). Park, 9 Humph. 195.] 4 Ves. 708; 5 Ves. 495; 8 Ves. 561. 
 
 (m) Maddison v. Andrew, 1 Ves. 60; (o) Gower v. Mainwaring, 2 Ves. 89 ; 
 
 Alexander t). Alexander, 2 Ves. 640; see Moggridge ■u.Thackwell, 7 Ves. 36; 
 
 Kemp w. Kemp, 5 Ves. jun. 849, 859; Mahon v. Savage, 1 Sch. & Lef. 111. 
 
 Keates v. Burton. 14 Ves. 437; 2 Sugd. [See ante, p. 466 and note.] 
 
 Pow. 190, 6th edit. See Gower v. Main- (p) Walker v. Walker, 5 Mad. 424. 
 
714 OF DISCRETIONARY POWERS. 
 
 years from and after the testator's decease," then, and in that case 
 the testator gave the same estate to the plaintiflF, his heirs, and as- 
 signs for ever. " But, should the conduct and behavior of the plain- 
 tiff not be such as to merit and procure the confidence and good 
 opinion of" the said three trustees, the estate was given to the plain- 
 tiff for life, with remainder to his children at the age of twenty-four, 
 i- as tenants in common in fee ; and the will *declared that if 
 
 L -• the plaintiff never should, by his conduct and behavior, merit 
 and entitle himself to the confidence and good opinion of the trus- 
 tees, the survivors, or survivor of them, and the executors, adminis- 
 trators and assigns of such survivors, so as to entitle himself to the 
 estate absolutely, nor leave any child or children arriving at the age 
 of twenty-four, the estate should go over. The bill .prayed, that the 
 trustees might signify, in such manner as the court should direct, 
 their approbation of the plaintiff's conduct and behavior for the 
 space of seven years from the testator's decease, and might convey 
 the fee simple of the estate to the plaintiff, and deliver to him the 
 title-deeds. One of the trustees, by his answer, stated that he had 
 not such confidence in the conduct and discretion of the plaintiff, as 
 to think it proper or conformable to the testator's intentions to give 
 the plaintiff the absolute control over the estate.- Sir J. Leach, V. 
 C, after taking the distinction above mentioned, made a decree refer- 
 ring it to the Master, to inquire whether the plaintiff's conduct and 
 behavior for not less a time than seven years, at least, from the tes- 
 tator's death, had been to the entire satisfaction and approbation of 
 the trustees, and whether they had agreed and signified their unani- 
 mous approbation of his conduct and behavior for that time.(g') It 
 does not appear, whether his Honor considered that the discretion of 
 the trustees in this case was to be exercised on a matter of opi- 
 nion and judgment, or on a matter of fact : although there can be 
 little doubt, but that the subject in question was purely a matter of 
 private judgment. The case in fact decides little or nothing, for the 
 decree, it will be observed, merely directed an inquiry, whether the 
 approbation required by the will had been given by the trustees. It 
 is to be remarked, that the trustees in this case were still living and 
 acting, and there was no suggestion of improper conduct. 
 
 This distinction between a discretion on matters of fact and 
 opinion seems in some measure to be countenanced by the earlier 
 case of Gower v. Main waring, (r) There three trustees were directed 
 by deed to give the residue of the settlor's estate " among his friends 
 and relations, where they should see most necessity, and as they 
 should think most equitable and just." The settlor afterwards made 
 a will giving his whole estate to the husband of the plaintiff, who 
 (5) Walker v. Walker, 5 Mad. 424. (r) 2 Yes. 87, 110. 
 
OF DISCRETIONARY POWERS. 715 
 
 ■was one of his daughters. Two of the trustees died and the other 
 refused to act. The bill was filed by the daughter as executrix of 
 her husband, who was dead, to obtain the benefit of the settlor's 
 ■will. Lord Hardwicke seems to have considered, that an absolute 
 trust -was created by the deed for the next of kin of the settlor, with 
 a discretionary power of distribution by the trustees amongst those 
 objects according to their necessity. Upon the question whether the 
 court would take upon itself this discretion, in consequence of the 
 failure of the trustees to exercise it, his Lordship is reported to have 
 said, " the trustees are to judge on the necessity and occasions of the 
 family ; the court cannot judge of such necessity of the family. 
 Thai is a judgment to be made on facts existing ; so that the court can 
 make the judgment as well as the trustees ; and when informed by evi- 
 dence of the necessity, can judge what is equitable and just on this 
 necessity."(s) His Lordship ultimately *decided, that the r-^.^n-, 
 plaintiff having had her share of the residue as one of the ^ ^ 
 next of kin could not have any more, and that the remainder was to be 
 divided between the brother of the plaintiff and a son of a deceased 
 sistev according to their necessities and circumstances, which the Mas- 
 ter was to inquire into and consider, how it might he most equitably 
 and justly divided.{t) The circumstances of the case were very 
 peculiar, and were moreover tainted with fraud. Lord Hardwicke's 
 words as quoted above are also somewhat unintelligible, if not incon- 
 sistent with themselves ; and on several other occasions,(M) and indeed 
 in the course of his judgment in Grower v. Mainwaring itself,(a;) he 
 expressly disclaimed any jurisdiction of exercising discretionary 
 powers in general. And the current of the more recent authorities 
 renders it very doubtful whether the case in question would meet with 
 a similar decision at the present day. At all events it would be found 
 extremely difficult to make any practical application of this distinc- 
 tion between matters of fact and those of mere judgment and 
 opinion, and it remains yet to be seen, whether that distinction would 
 meet with the sanction of the judges at the present time. 
 
 As a court of equity will not in general assume the exercise of a 
 discretionary power vested in trustees, so it will not interfere to con- 
 trol the trustees acting bona fide in the exercise of their discretion. (y)^ 
 
 (s) 2 Ves. 89. (j/) Potter v. Chapman, Ambl. 98 ; 
 
 (!) 2 Ves. 110. Pink v. De Thuisey, 2 Mad. 157, 162; 
 
 (m) Brereton v. Brereton, 2 'Ves. 87, French i;. Davidson. 3 Mad. 396; Clarke 
 
 cited; Potter v. Chapman, Ambl. 98; v. Parker, 19 Ves. 11; see Wood v. 
 
 Maddison «. Andrew, 1 Ves. 60. Richardson,. 4 Beav. 177; Cowley v. 
 
 (x) See 2 Ves. 89. Hartsronge, 1 Dow. 378. 
 
 ' A court of eguity will not interfere with the exercise of a discretionary power 
 while trustees are acting in good faith and with ordinary prudence. Gochenaur v. 
 
716 OF DISCRETIONARY POWERS. 
 
 Nor will a suit be entertained to compel the trustees to exercise their 
 power. (2)^ And the refusal of a trustee to exercise a purely discre- 
 tionary power is not a breach of trust, for which he can be removed 
 from his office, although the trustee assigns no conclusive reason for 
 the refusal, and the proposed act is apparently beneficial to the trust 
 estate. (a) 
 
 However, if a trustee is actuated by fraudulent or improper mo- 
 tives in exercising, or refusing to exercise, his discretionary powers, 
 a court of equity upon proof of the improper conduct interposes its 
 jurisdiction on a totally different principle — not for the purpose of 
 exercising the discretion committed to the trustee, but to check or 
 relieve from the consequences of an improper exercise of that discre- 
 tion.(6) 
 
 Discretionary powers, like other authorities, must be exercised in 
 the manner prescribed by the trust instrument. And if a deed or 
 writing be required, that direction must be complied with ; and if the 
 power be exerciseable only by will, an execution by deed will be im- 
 
 (z) Brereton v. Biereton, 2 Ves. 87, v. Kemp, 5 Ves. 849 ; Dashwood v. 
 
 cited;Pinku.DeThuisey, 2Madd. 157; LordBulkley, 10 Ves. 245; Mesgretti). 
 
 Leev. Young; 2 N. C. C. 532. Mesgrett, 2 Vern. 580; 10 Ves. 243; 
 
 (o) Lee V. Young, 2 N. C. C. 532. D'Aguilar v. Drinkwater, 2 V. & B. 225; 
 
 (6) Clarke v. Parker, 19 Ves. 12, 18 ; Peyton v. Bury, 2 P. Wms. 628. 
 French v. Davidson, 3 Mad. 396 ; Kemp 
 
 Froelick, 8 Watts, 19 ; Arnold v. Gilbert 3 Sandf. Ch. 556 ; Masons. Mason, 4 
 Id. 639; Banner v. Stornn, 1 Id. 356; Hawley v. James, 5 Paige, 485; Clove d, 
 Martin, 1 Dev.& Batt. 307 ; Cowles v. Brown, 4 Call, 477; Morton v. Southgate, 28 
 Maine, 41; Prendergrast -u. Prendergrast, 3 Eng. L. & Eq. 1 ; Att.-Gen.?;. Mosely, 
 2 DeG. & Sm. 398, 12 Jur. 889; Costabadie v. Costabadie, 6 Hare, 414: though 
 see Berry v. Hamilton, 10 B. Monroe, 135. See notes to Aleyn v. Belchier, 1 
 Lead. Cas. Eq. (1 Am. Ed.) 303. 
 
 ' But in Costabadie v. Costabadie, 6 Hare, 410, where there was a direction by 
 will that the testator's widow should receive "all the income of his real and per- 
 sonal estate, and pay and apply the same to and for the use ofherselfand the chil- 
 dren of their marriage, agreeably and according to her own discretion," which it 
 was held the court could not interfere with, so long as it was reasonably and ho- 
 nestly exercised, it was said by the Vice-Chancellor (Wigram), that the plaintiff, 
 one of the children, having an interest subject to the mother's discretion, had a 
 right to the discovery of the property, in respect of which the interest existed, 
 and also to the discovery of all the acts which had been done, and the rea- 
 son for doing them, which the defendant (the mother), might be able to give. 
 " She has that right," he observed, '•' in order that the court may be able to see 
 whether the discretion which has been exercised by the party intrusted with it, 
 
 is within the limits of a sound and honest execution of the trust 
 
 If a bill be filed, the court will of course inquire into the acts which have been 
 done in the administration of the trust, and may possibly (as has been done in 
 many cases), require the trustee to exercise the discretion under the view of the 
 court," in order to prevent a multiplicity of suits. 
 
OF DISCRETIONARY POWERS. 71T 
 
 proper, and vice versa.{c) Although a technically defective execu- 
 tion may be relieved against in equity in proper cases. (d) 
 
 So these powers can be exercised only by those persons, to whom 
 they *are expressly confided by the trust instrument, and they 
 
 will not devolve upon the heir or personal representatives 
 
 [*489] 
 
 of the original trustee, unless they are so limited on the creation of 
 the trust. (e) And where the authority is given jointly to co-trustees 
 without words of survivorship, it will be determined on the death of 
 one.(/) So trustees appointed by the court cannot usually execute 
 powers of this nature.(^) 
 
 However, where the power is annexed to the office of trustees, and 
 one or more of the trustees refuse to accept the trust, it is settled, that 
 those who accept may exercise the power. For instance, in a late 
 case,(A) a testator appointed three executors and trustees, and em- 
 powered his said trustees and the survivor of them, and the execu- 
 tors and administrators of such survivor, to give his son an equal 
 share of his estate with his other children in the event of his conduct 
 changing. Two of the executors renounced, and it was held by 
 the M. R. (Lord Langdale), that the power vested in the sole acting 
 trustee.{i) 
 
 A fortiori, a discretionary power cannot without an express autho- 
 rity be delegated to a stranger by assignment inter vivos.{k) And 
 it seems, that a trustee is equally incapacitated from devising his 
 powers by will, for a devise is equally a delegation of the trust ; and 
 consequently a devisee of a trustee cannot exercise any discretionary 
 power, which is not expressly limited to the assigns of the trustee.(Z) 
 Indeed, from the observations of the Vice-Chancellor in the recent 
 case of Cooke v. Crawford,(m) it is very doubtful whether in any 
 case it is competent for a trustee to transfer the trust by will to a 
 devisee.^ 
 
 If a discretionary power be well exercised on some points, an at- 
 
 (c) Doe V. Thorley, 10 East, 438; {h) Eaton i;. Smith, 2 Beav. 236. 
 Kennedy?). Kingston, 2 J. & W. 431; \i) See Flanders v. Clark, 1 Ves. 9; 
 Walsh V. Wallinger, 2 R. & M. 81. [4 Clarke v. Parker, 19 Ves. 19; Worth- 
 Kent. Com. 330, &c.] ington v. Evans, 1 S. & St. 165; Haw- 
 
 (d) 2 Sugd. Pow. 94, et seq. 6th edit, kins v. Kemp, 3 East, 410. [Ante, 
 (f) Cole V. Wade, 16 Ves. 44, and 471, and notes.] 
 
 cases cited ; Down u.Worrall, IM. &K. (k) Alexander v. Alexander, 2 Ves. 
 
 561. 643; Att.-Gen. v. Berryman, Ibid, cited; 
 
 (/) Moor. 61, PI. 172 ; 16 Ves. 45; Bradford v. Belfield, 2 Sim. 264; Hitch 
 
 Townsend v. Wilson, 1 B. & Aid. 608. v. Leworthy, 2 Hare, 200. 
 
 [Ante, 471, &o.. Endnotes.] (/) Cole v. Wade, 16 Ves. 27; Cooke 
 
 (g-) Hibbardi). Lambe, Ambl. 309; v. Crawford, 13 Sim. 91. 
 
 ante, p. 190. [See Newman u. Warner, (m) 13 Sim. 97. 
 1 Sim. N. S. 457.] 
 
 ' See ante, 283, and notes. 
 
718 OF DISCRETIONAEY POWERS. 
 
 tempt by the trustee to delegate the power on some remaining points 
 will not vitiate the exercise of the power, so far as it has been rightly 
 made.(M) 
 
 The discretionary powers usually given to trustees appear to fall 
 under four principal heads.' — 1st.. Where it is left to the discretion 
 of the trustees to make, or to withhold, a gift or appointment of trust 
 property to a specified donee or class of donees. — 2d. Where the 
 discretionary power is confined to the selection from or distribution 
 amongst the objects of a declared trust. — 3d. Where the discretion 
 Jipplies to some ministerial act connected with the management of 
 the trust estate — such as powers of leasing, selling, appointing new 
 trustees, felling timber, or the like ; — and 4th. Where the subject- 
 matter of the discretion to be exercised is entirely a matter of per- 
 sonal judgment — as where the consent or approbation of the trus- 
 tees is required to a marriage, or to the conduct and behavior of an 
 individual. 
 
 And first, where trustees have a discretionary power of making or 
 giving effect to a gift out of the trust property. 
 r*AQ(M *^^ '' ^'^ * condition precedent to a gift of a legacy or 
 L '' J other interest, that the trustees should exercise their power 
 in favor of the object — whether the power require an appointment 
 by them, or merely their assent to the gift, — no interest will vest in 
 the donee until the power be duly exercised, and if the trustees re- 
 fuse or neglect to exercise it, the gift cannot be enforced. (o) And 
 in such cases the court cannot decide upon the propriety or impro- 
 priety of the refusal by the trustees to give their assent. (^) Unless 
 the refusal be shown to proceed from a vicious, corrupt, or unreason- 
 able cause. And it will rest with the other party to prove the exis- 
 tence of an improper motive, and not with the trustees to show a 
 reason for their refusal.(5') 
 
 In Pink v. De Thuisey,(?-) a testator gave and bequeathed 1,OOOZ. 
 unto J. E., adding that he made the said legacy " under the condi- 
 tion thereinafter written," and in a subsequent part of the will, he 
 requested his executor to place that sum in the manner he should 
 think most advantageous, and to give every year the revenues of it 
 
 (n) Hitch 1). Le worthy, 2 Hare, 200. the "Lower Swell Estate;" Duke of 
 
 (o) Pink V. De Thuisey, 2 Mad. 1 57 ; Marlborough v. Lord Godolphin, 2 Ves, 
 
 see Walker v. Walker, 5 Mad. 424; 61. 
 
 Weller^. Weller, 2 Mad. 160, cited; (p) 2 Mad. 162. 
 
 French u. Davidson, 3 Mad. 396; see (5) Clarke?). Parker, 19 Ves. 11, 18, 
 
 Brown v. Higgs, 4 Ves. 719; 5 Ves. 22; French «. Davidson, 3 Mad. 402. 
 
 508; 8 Ves. 568, on the question as to (r) 2 Mad. 157. 
 
 • See on these powers, New York, Kev. St., Part IL Ch. 1, Tit. 2, Article 3, { 9, 
 &c. 
 
OF DISCRETIONARY POWERS. 719 
 
 to J. E., " and to give him the principal only in case of an esta- 
 blishment 01- acquisition for him which might seem advantageous to my 
 executor, this disposition being an essential condition of the legacy 
 I make to the said J. E. I, however, leave my executor at liberty to 
 give to the said J. E. the said sum. of 1,000?. if he found the thing 
 froper, although there should be found at the moment neither esta- 
 blishment nor acquisition for the said J. E." J. E. died, having 
 disposed of the 1,000Z. by his will, and the bill was filed' by persons 
 claiming under the will of J. E., to compel the payment of the 
 legacy of 1,000Z. : the defendant, the executor, by his answer denied 
 that J. E. had ever obtained a proper establishment or acquisition. 
 Sir J. Leach, V. C, held 1st, That the gift of the principal of the 
 legacy was conditional on the legatee's obtaining an acquisition or 
 establishment such as might seem advantageous to the executor ; 
 2d, That that condition had not been satisfied ; and 3d, That the 
 legatee was not entitled under the final clause of the will ; for the 
 executor said, he did not think proper to advance the legacy. His 
 Honor observed, "Nothing appears in the conduct of the young man 
 which disqualified him from taking, but it would be quite contrary 
 to the provisions of the will to hold, that the power given to the exe- 
 cutor at his discretion to advance the legacy, gave the legatee a 
 right to claim it absolutely. If that were so, the condition in the 
 will, and the power given to the executor of dispensing with it, 
 would be useless ; the whole will would be frustrated. Is the court 
 to decide upon the propriety of the executor withholding the legacy ? 
 That would be assuming an authority, which is confided by the will 
 to the discretion of the executor. It would be to make a will for 
 the testator, instead of expounding it." And his Honor concluded 
 thus, " The executor did not think fit to advance the principal of 
 this legacy to (the legatee), and therefore he could not claim it as 
 absolutely entitled. The consequence is, the bill must be dismis- 
 sed."(8) 
 
 *So in Weller v. Weller,(i) which was cited in the argu- 
 ment of Pink V. De Thuisey, a testator gave his son a sum of ^ ^ 
 money with power for his executors to advance mOre, if they thought 
 proper. The creditors of the son filed a bill against the executors to 
 compel the payment of the additional sum, but the Master of the 
 EoUs thought the bill would not lie.(i) 
 
 Again, in French v. Davidson, there was a direction for trustees to 
 pay an annuity to a party, " unless circumstances should render it 
 unnecessary, inexpedient, and impracticable." And the same learned 
 judge considered that the state of circumstances upon which the 
 
 (s) Pink V. De Thuisey, 2 Mad. 157, (<) Weller?J.Weller,2Mad.lC0,cited. 
 162. 
 
720 OP DISCRETIONARY POWERS. 
 
 annuity was to cease, was to be determined by the opinion of the 
 trustees ; and if they had discontinued the payment of the annuity 
 because, using their best discretion on the subject, they had come to 
 a conclusion, that circumstances had rendered it unnecessary, inex- 
 pedient, and impracticable, and had distinctly stated as much in their 
 answer, the court could not have controlled their judgment, unless 
 there were mala fides. But as this did not appear to have been the 
 case, his Honor declared, in the words of the will, that the annuity 
 was to be paid unless in the judgment of the executors, circumstances 
 should render it unnecessary, inexpedient, and impracticable. (m) It 
 will doubtless be observed, that in this last case, the power of stop- 
 ping the payment of the annuity was in the nature of a condition 
 subsequent, unless it could be considered that the gift of the annuity 
 amounted to a substantive legacy of each annual payment, each being 
 made dependent on the precedent and continuing assent of the trustees. 
 
 If the will in the first instance contain a direction, which amounts 
 to a direct gift, and a subsequent discretionary power be given to the 
 trustees, enabling them to annul the gift, it is clear that the donee 
 will be entitled, unless and until the trustees defeat the bequest by 
 the exercise of their power. And the court will endeavor as far as 
 possible to affix this limited construction to powers of this description. 
 
 Thus in Wainwright v. Waterman, (a;) the testator directed his ex- 
 ecutors to appoint his grandson John, a partner, and gave him a 
 legacy of 4,000Z. when he should become a partner. By a subsequent 
 codicil he declared, that it should be entirely at his executor's discre- 
 tion to appoint John a partner, notwithstanding the former direction ; 
 and if they should not think proper to appoint him, the legacy ofi,OOOL 
 was to be void. 
 
 One of the executors, the father of John, wished to make him a 
 partner, the other two were against it. The Lord Chancellor (Lord 
 Thurlow) said, that " if the executors had united in declaring, that 
 John was unfit to be admitted, and without collusion or fraud, that 
 they had a right to exclude him, and he must have lost the 4,OO0Z." 
 But as the circumstances were, and as they made no such declaration, 
 his Lordship declared John to be entitled both to be admitted a part- 
 ner, and to his legacy.(a;) 
 
 So in Keates v. Burton,(2/) a testator, after giving a legacy of 
 2,000Z. to his natural son, added a discretionary power for his execu- 
 tors to pay him the interest on the principal. The executors renounced 
 probate, and the legatee became insolvent. Sir Wm. Grant, M. R., 
 r*4.Q91 ^^^^i *^^* ^^ *^^ *bequest was in the first instance absolute, 
 ^ and the executors had not exercised their power, and having 
 
 (u) French v. Davidson, 3 Mad. 396. (?/) Keates v. Burton, 14 Ves. 434. 
 
 (x) 1 Ves.jun. 311. 
 
OP DISCRETIONARY POWERS. 721 
 
 renounced, could no longer exercise it, the legatee continued abso- 
 lutely entitled, (t/) 
 
 And the decision in the case of French v. Davidson,(2) already- 
 stated, is of a similar tendency. 
 
 However, there has been already occasion to observe, that powers 
 of this description are very frequently treated in equity as in the 
 nature of trusts. (a) And the court in these cases will always strive 
 to adopt a construction, by which the objects of the settlor's bounty 
 will take a vested interest in the gift at all events, independently of 
 the exercise of the power, which in that case will be restricted to the 
 selection from, or the distribution amongst, the class of objects. (6) 
 
 And this brings us to the consideration of the second class of dis- 
 cretionary powers, viz., those which are confined to the selection from, 
 or the distribution amongst, the objects of the trust.^ 
 
 Where a vested interest in trust property is given to a class of 
 individuals, as to the testator's children, subject to a discretionary 
 power in the trustees, to appoint the fund to any one or more objects 
 from the class ; upon the execution of the power, those who are 
 named in the appointment, will take to the exclusion of the others.(l) 
 And so where the power is, to fix the relative proportions or the time 
 and mode of application of the shares, the directions of the trustee, 
 made in exercise of his power, will govern the relative rights of the 
 parties in those respects.(c) 
 
 But if the power be not exercised, and until its exercise, the whole 
 class of objects will be entitled to the property in equal shares, (c^) 
 
 Where the trust is for the testator's " relations," or " family," with 
 a power of selection by the trustees amongst those objects, the trus- 
 tees in exercising that power may appoint to any persons coming 
 within the testator's description, although not within the degree of Ms 
 
 (]/) Keates I). Burton, 14 Ves. 434. nedy u. Kingston, 2 J. &W. 431 ; Keates 
 
 Iz) 3 Mad. 396. v. Burton, 14 Ves. 434; Walsh v. Wal- 
 
 (a) Ante, Pt. I. Div. I. Ch. II. Sects. 2, linger, 2 R. & M. 78 ; Brown v. Pocock, 
 
 3, 4, [page 68, &c., and notes.] 6 Sim. 257; 2 Sugd. Pow. 179, 180, 6th 
 
 (6) Ibid. edit. ; Fowler v. Hunter, 3 Y. & J. 506. 
 
 (c) Forbesv.Ball, 3Mer. 440; 1 Hop. [Withers v. Veadon, 1 Rich. Eq. 324: 
 Legs. 96, 98, and cases cited. Collins v. Carlisle, 7 B. Monr. 14; Bull 
 
 (d) Brown v. Higgs, 4 Ves. 708; 5 v. Bull, 8 Conn. 47, ante, 68, and notes; 
 Ves. 495; Kemp v. Kemp, 5 Ves. 849; 72, and notes.] 
 
 Longmore t). Broom, 7 Ves. 124; Ken- 
 
 (1) For the expressions,' which will create an exclusive power of appointment 
 or selection, see 1 Sugd. Pow. 561, et seq., 6th ed., where the subject is fully con- 
 sidered. [4 Kent's Comm. 345.] 
 
 ' See, on these powers, in New York, Rev. Stat, Part ii. Ch. 1, Tit. 2, Art. 3, 
 J 95, &c. 
 
 46 
 
722 OF DISCBETIONABY POWERS. 
 
 next of hin.{e) But if the power be not exercised by the trustees, 
 the court will confine the trust to those who are the testator's next of 
 kin, according to the statute, at the death of the donee of the power.{/) 
 
 But the terms "family" and "relations" will, as a general rule, 
 be construed to mean " next of kin ;" and if the trustee have no power 
 of selection from amongst these objects, but only a power of dis- 
 tributing their several shares, he can give nothing to any one, except 
 r*4<^^1 ^^^ testator's *next of kin ; and if the power be not exercised, 
 the testator's next of kin at the time of his death will be all 
 equally entitled.(^) 
 
 Although the court may have acquired jurisdiction over the trust 
 property, by the institution of a suit for the administration of the 
 estate, or to determine the construction of the will, yet in making its 
 decree, it will not interfere with a discretionary power of selection 
 or distribution, if the trustees be living and competent to act; but 
 the right and facility of exercising the power will be expressly re- 
 served to them by the decree.(A) 
 
 However, on one occasion, where the trust had come under the 
 direction of the court, the decree fixed the period within which the 
 power was to be exercised, (i) 
 
 And in a late case, where trustees, who had a discretionary power 
 of distribution amongst the testator's nephews, could not agree 
 amongst themselves as to the division, the court, on a bill filed by some 
 of the trustees, made a decree, directing the division of the trust 
 property amongst all the nephews equally, per capita.Qc) 
 
 Trustees in the exercise of these discretionary powers cannot 
 exceed their authority, or infringe upon any of the other trusts. 
 Therefore, where a trustee is empowered to distribute or apportion 
 the shares of a fund amongst the several objects, but he is not in- 
 vested with any exclusive power of selection, he is not at liberty to 
 exclude any of the objects, but in making his appointment must give 
 some share to each.(Z) And previously to the recent change of the 
 
 (e) Mahon v. Savage, 1 Sch. & Lef. 708 ; Mahon v. Savage, 1 Sch. & Lef. 
 
 lll;Hardyng?;.Glyn, 1 Atk.469; Ben- 711; Waldo v. Caley, 16 Ves. 206: 
 
 nett V. Honeywood, Ambl. 708 ; Tytcher Horde v. Earl of Suffolk, 2 M. & K. 59. 
 
 V. Byles, 1 T. R. 435 ; Cruwys v. Col- [See Costabadie v. Costabadie, stated, 
 
 man, 9 Ves. 435; Birch v. Wade, 3 V. ante, 488, in note.] 
 
 & B. 198 ; Grant v. Lynam, 4 Russ. 392 ; (i) Piper v. Piper, 3 M. & K. 159. 
 
 Supple V. Lowson, Ambl. 728. [k) Tomlin v. Hatfield, 13 Sim. 167. 
 
 (/) Ibid. [Ante, 76, and notes ; see {l) Bennett v. Honeywood, Ambl. 
 
 Bull V. Bull, 8 Conn. 47.] 708; Att.-Gen. v. Price, 17 Ves. '371; 
 
 (g-) Cole V. Wade, 16 Ves. 27, 43; Kemp v. Kemp, 5 Ves. 849; 1 Sugd. 
 
 Pope V. Wichcombe, 3 Mer. 689 ; 1 Rop. Pow. 561, et seq., 6lh edit. [See Cowles 
 
 Legs. 96, &c. V. Brown, 4 Call, 477.] 
 
 (A) Bennett v. Honeywood, Ambl. 
 
OF DISCRETIONARY POWERS. 723 
 
 law, such a stare could not have been merely nominal or illusory ;(wj) 
 although now, by the act 1 Will. IV. c. 46, any appointment in exer- 
 cise of a power, which is valid at law, will be good in equity, and 
 consequently the gift of the smallest nominal share will in future be 
 sufficient to satisfy the power.(wy However, in these cases, the 
 appointment need notice only those objects who are living at the 
 time of the exercise of the power, and the whole fund may be ap- 
 pointed to the survivors, to the exclusion of the representatives of 
 those who are then dead: and even where there is only one surviving 
 object, the power of appointment is not extinguished on that account, 
 (though a power of selection must then necessarily be gone), and an 
 appointment in favor of the sole survivor will be good.(o) 
 
 So where there was a bequest of an annuity, to be applied for the 
 maintenance and benefit of the legatee, "in such manner" as the 
 trustees in their absolute and uncontrolled discretion shall think fit, 
 it was held by Sir K. Bruce, V. C, that the direction to apply the 
 annuity for the legatee's benefit being absolute, the whole was to be 
 applied for that purpose. " The trustees' discretion was as to the 
 manner of the application, not *whether there should or should t-^,q.-. 
 not be any application at all."(p) Again, where the dis- ^ -1 
 cretionary power of appointment is confined to a particular class of 
 persons, it is almost needless to state, that the trustees will not be at 
 liberty to travel out of that class. For instance, where the power 
 was to appoint to relations, it must be exercised in favor of some 
 relation, and an appointment to a brother's widow who is not a 
 relation, is bad.(5') 
 
 If a power of distribution or application be improperly exercised, 
 
 (m) Maddison t). Andrew, 1 Ves. 57 ; 1 Ves. jun. 299; 3 Bro. C. C. 242; 
 Alexander u. Alexander, 2 Ves. 640; Butcherw. Butcher, 1 V.&B. 89; Wood- 
 Kemp V. Kemp, 5 Ves. 849; Butcher i). cock v. Woodcock, Phill. 72. 
 Butcher, 1 V. & B. 79; Mocatta v. {p) Stephens v. Lawry, 2 N. C. C. 
 Lousada, 12 Ves. 123. 87. [See Cowles v. Brown, 4 Call. 477.] 
 
 (ji) 1 Sugd. Pow. 568, &c., 6th edit. (5) Harvey v. Harvey, 5 Beav. 134. 
 
 (0) Boyle V. Bishop of Peterborough, 
 
 ■As to the doctrine of illusory appointments, see notes to AUeyn v. Belchier, 
 1 Lead. Cas. Eq. 290, 303 (1st Am. Ed.); 4 Kent's Comm. 342. In New York, 
 by the Revised Statutes (Pt. H. Ch. 1, Tit. 2, Art. 3, H97, &c.), it is provided, 
 that where a disposition under a power is directed to be made to, or among, or 
 between several persons, without any specification of the share or sum to be 
 allotted to each, all the persons designated shall be entitled to an equal pro- 
 portion. But where the terras of the power import that the fund is to be dis- 
 tributed between the persons so designated, in such manner or proportions as 
 the trustee of the power may think proper, the trustee may allot the whole to 
 any one or more of such persons, in exclusion of the others. If the trustee of a 
 power, with a right of selection, shall die, leaving the power unexecuted, its 
 execution shall be decreed in equity for the benefit equally of all the persons 
 designated. 
 
724 OF DISCRETIONARY POWERS. 
 
 the objects of the power will take equally, as in default of any ap- 
 pointment. (r) 
 
 The next class of discretionary powers are those which apply to 
 the management of the trust estate. 
 
 The court is much more ready to control the trustees in the exer- 
 cise of discretionary powers of this last description, than in matters 
 of private opinion and judgment. The reason is, that on these matters 
 of fact the court is equally competent, or even more competent than 
 the trustees to determine what will be most beneficial to the trust 
 estate :(s) and it will enter into the consideration of the motives of a 
 trustee in exercising, or refusing to exercise, such a power, and will 
 not suffer him to exercise his discretion in an arbitrary or capricious 
 manner. 
 
 In Lord Milsington v. Earl Mulgrave,(i) trustees were empowered 
 by the settlement to renew church leases " from time to time, as 
 occasion should require, and as they should think proper." The 
 trustees refused to make the usual renewal of a lease at the expi- 
 ration of the first seven or fourteen years of the term, and the bill 
 was filed by the cestui que trusts to compel them to renew. To this 
 bill the defendants put in general demurrers, and it was argued in 
 support of the demurrers, that the trustees had a discretionary 
 power to renew at any time, and that the court would not interfere 
 with that discretion : but the Vice- Chancellor (Sir J. Leach) over- 
 ruled the demurrers without hearing the plaintiff's counsel. His 
 Honor observed, " I cannot allow these demurrers without holding 
 that the trustees have an arbitrary and capricious power with respect 
 to the renewal of this lease, and are not required to give any expla- 
 nation, why the lease has not hitherto been renewed. The trustees 
 are to renew as occasion may require, and as they may think proper ; 
 by which is to be understood, as they may think proper for the inte- 
 rests of their cestui que trust. The exercise of a power of renewal 
 does indeed require a discretion, — but not an arbitrary and capricious 
 discretion." 
 
 Again, where trustees are invested with a discretionary power of 
 appointing new trustees, if the court have acquired jurisdiction over 
 the property by the institution of a suit (though for a different 
 object), it will assume a control over the discretion of the trustees, 
 and will not suffer them to appoint new trustees, except under its 
 own sanction, (m) 
 
 (r) Gibson v. Knyven, 1 Vern. 66; («) 3 Mad. 491; see Hewit v. Hewit, 
 Kemp V. Kemp, 5 Ves. 849 ; 1 Sugd. Ambl. 508. [Ante, 433, &c., 480, &c.] 
 Pow. 579. (ti) Webb v. Earl of Shaftesbury, 7 
 
 (s) 3 Mad. 491. [See Mortimer v. Ves. 480, 487; Att.-Gen. v. Clack, 1 
 Watts, 9 Engl. L. & Eq. 126.] Beav. 467; but see Cafe ti. Bent, 3 Hare. 
 
 245. [See ante, 185, and note.] 
 
^ OP DISCEETIONAEY POWERS. 725 
 
 So it has been already seen,(a;) that if there be a trust to invest at 
 discretion on " some good or sufficient security," or " at discretion," 
 the *court will not allow the trustees to exercise any dis- 
 cretion as to the nature of the security, but will decide upon L -I 
 the goodness or sufficiency of the investment, according to its own 
 rules.(?/) And so it has also been stated, that a trust to invest " with 
 all convenient speed," must in general be executed within a twelve- 
 month. (s) 
 
 So it has been previously stated,(a) that a power of sale, or of 
 varying trust securities, though to a certain extent discretionary, must 
 not be exercised in an arbitrary or mischievous manner, but only for 
 the benefit of the trust estate ; and the court, on a bill being filed, 
 will enter into the consideration of the circumstances, and decide upon 
 the propriety or impropriety of exercising such powers. (6) 
 
 However, in all these cases, if the trust instrument expressly de- 
 clare, that the power may be exercised by the trustee, at his uncon- 
 trolled discretion, and the terms are such as preclude the court from 
 entering into the trustee's motives in exercising this discretion, the 
 jurisdiction of the court is excluded, and it cannot interfere, except 
 in the case of fraud, or improper motive, which is an exception to 
 every such general rule.(e) 
 
 Powers of sale, of leasing, and of varying the securities, also come 
 within the class of discretionary powers which is now under con- 
 sideration ; but they have been discussed at large in the three pre- 
 ceding heads of this section. (li) 
 
 The fourth and last class of discretionary powers is, where the dis- 
 cretion is to be exercised on a matter of pure personal judgment. 
 For instance, where the trustees are empowered to give their opinion 
 on the good, or ill-conduct, or merits of an individual ;(e) or to de- 
 fermine the propriety, or impropriety, of continuing the payment of 
 an annuity ;(/)' or to give their approbation to a settlement,(^) &c. 
 
 (a;) Ante [368, &c., and notes.] (c) Milsington v. Mulgrave, 3 Mad. 
 
 (y) Booth V. Booth, 1 Beav. 125 ; see 493 ; Lee v. young,2 M. C. C. 536; and 
 
 De Manneville v. Crompton, 1 V. & B. see PL II. and III. of this section. 
 
 359 ; Pocock v. Reddington, 5 Ves. 794. (d) Vide supra, Pi. I., II. and III. of 
 
 (3) Parry t). Warrington, 6 Mad. 155. this section. 
 
 (a) See the last two preceding Sec- (e) Cole u. Wade, 16 Ves. 27: Walker 
 
 tions. V. Walker, 5 Mad. 424; Eton I). Smith, 
 
 (6) De Manneville v. Crompton, 1 V. 2 Beav. 236. 
 
 & B. 359 ; Brice v. Stokes, 1 1 Ves. 324; (/) French v. Davidson, 3 Mad. 396. 
 
 Lord V. Godfrey, 4 Mad. 459 ; Broad- (g) Brereton v. Brereton, 2 Ves, 87, 
 
 hurst V. Balguy, 1 N. C. C. 28 ; see Hitch cited. 
 V. Leworthy, 2 Hare, 205, 208. 
 
 ■ In Mason v. Mason, 4 Sandf. Ch. 631, it was held, that a discretionary power 
 
726 OF DISCKETIONARY POTVEKS, 
 
 The trustees alone are competent to exercise these powers, for they 
 may have private and peculiar grounds for arriving at a proper con- 
 clusion, into which the court could not providentially inquire, and 
 which the trustees might refuse to disclose. The exercise of such 
 authorities cannot, therefore, in general, be assumed, or even con- 
 trolled by the court.(A) 
 
 A power for trustees to consent to a marriage, is obviously a dis- 
 cretionary power of this last description, and it is one which has been 
 a fruitful source of litigation. From the nature of the subject, such 
 authorities are on a footing peculiar to themselves, and will, there- 
 fore, require to be separately discussed. 
 
 Courts of equity, following the maxims of the civil law, have 
 always discountenanced any conditions in restraint of marriage. (i) 
 r*4Pfi1 ■^^'^''^) if **^ interest in a legacy be vested in a party with a 
 subsequent provision for divesting that interest, in case of the 
 legatee's marriage without the required consent, and there is no gift 
 over to take effect on the marriage without such consent, the con- 
 dition will be treated merely as one in terrorem, and will not be 
 enforced. (^) But this doctrine will be applied only to a pecuniary 
 legacy, and will not extend to a charge on real estate. (Z) And even 
 where the condition is subsequent, yet if the legacy be given over on 
 
 (A) Clarke v. Parker, 19 Ves. 11. 364; Lloyd v. Branton, 3 Mer. 117; 1 
 
 (i) Stackpole ti. Beaumont, 3 Ves. 96; Rop. Legs. 715; Harvey v. Aston, I Atk. 
 
 Daley v. Desbonvierie, 2 Atk. 261; Long 378, 9 ; Jervoise v. Duke, 1 Vera. 20. 
 
 V. Dennis, 4 Burr. 2052. {I) Harvey v. Aston, 1 Atk. 379; Re^- 
 
 {k) Semphillt). Hayley, Prec. Ch. 562; nel v. Martin, 3 Atk. 333 ; see Berkley 
 
 Garret u^Pretty, 2 Vern. 293; S. C. 3 ti. Ryder, 2 Ves. 535; Stackpole i;.Beau- 
 
 Mer. 120; Wheeler v. Bingham, 3 Atk. mont, 3 Ves. 89. 
 
 to increase an annuity, which has ^een once exercised, will not authorize a fur- 
 ther execution by a reduction to the original amount. 
 
 Where executors are authorized to advance to a legatee any sum or sums of 
 money not exceeding an amount specified, an exercise of the power for a less 
 amount will not preclude a further advance. Webster v. Baddington, 16 Simons, 
 177. 
 
 Under the amended provision of the New York Revised Statutes, which 
 authorizes the rents and profits of a devised estate to be applied, generally, to the 
 use of a cestui que trust, it was said by the Chancellor, in Gott v. Cook, 7 Paige, 
 538 (approved in Mason v. Jones, 2 Barb. S. C. 248), that a certain degree of 
 discretionary power was vested in the trustee ; and that, though in case he should 
 attempt, without any justifiable cause, to exercise a control over the application 
 of the trust fund, it would be a breach of trust ; yet, it would be equally so to 
 pay it over after it was received into the hands of a lunatic, or a drunkard, who, 
 he had reason to suppose, would waste it, without applying it to any beneficial 
 use; and so it would be, if he purchased articles of food, or other property, 
 himself, and placed it in the hands of such a person, when he had reason to 
 believe that it would be wasted, instead of being used for the benefit of such 
 cestui que trust, or his family. 
 
OF DISCRETIONARY POWERS. 727 
 
 the failure of the donee to satisfy the condition, the court will re- 
 cognise the interest of the party who is entitled under the limitation 
 over, and the forfeiture will be enforced in his favor, if the donee 
 marry without the required sanction. (m) It is somewhat doubtful, 
 whether a mere general residuary gift will be a sufiBcient limitation 
 over, so as to give effect to a forfeiture arising from a condition sub- 
 sequent of this description. (ji) But it is clear, that an express direc- 
 tion, that the particular interest given to the donee shall fall into the 
 residue on his marrying without consent, will be a sufficient gift over 
 for this purpose.(o)' 
 
 However, where the consent of the trustees to a marriage is a con- 
 dition precedent to a gift, so that nothing vests in the donee until his 
 marriage with that consent, — as where there is a limitation to a party 
 upon his marriage, or in case he should marry, with the proper con- 
 sent — it is clearly settled (though the law was once otherwise),(p) 
 that the condition must be strictly complied with, and the donee will 
 take nothing, unless he marry with the required consent. (5') And in 
 such a case, it is immaterial, whether there is,(r) or is not,(s) a limi- 
 tation over in the event of the condition not being performed. And 
 the condition will be equally valid, whether the consent to the mar- 
 riage of the donee be required only until he attain a certain age,(i) 
 or during his whole life.(M) 
 
 "Where there was a devise to a party, if he should marry with the 
 consent of trustees, and a gift over upon his marriage against their 
 consent, ^^ against " was held to mean " without" their consent, and 
 the devise over was established upon the first devisee's marriage 
 
 (m) Garret v. Pretty, 2 Vern. 293 ; 3 572 ; Gillet v. Wray, 1 P. Wms. 284 ; 
 
 Mer. 120 ; Harvey v. Aston, 1 Atk. 375 ; Harvey v. Aston, 1 Atk. 375, 8 ; Knight 
 
 Wheeler v. Bingham, 3 Atk. 364; Scott v. Cameron, 14 Ves. 389. 
 V. Tyler, 2 Bro. C. C. 431 ; Lloyd v. (r) Hemmings v. Munckley, 1 Bro. 
 
 Branton,3Mer. 117; StrattonD.Grymes, C.C.303; Clarke t). Parker, 19Ves.8, 
 
 2 Vem. 357; Dashwood u. Lord Bulke- 9; Malcolm u.O'Callaghan, 2 Mad. 349; 
 
 ley, 10 Ves. 230. Longu. Rickelts, 2 S. & St. 179. 
 
 (n) Harvey v. Aston, 1 Atk. 375; con- (s) Stackpole v. Beaumont, 3 Ves. 89; 
 
 tra, Wheeler v. Bingham, 3 Atk. 364; Scott v. Tyler, 2 Bro. C. C. 431; Creagh 
 
 see Lloyd v. Branton, 3 Mer. 118. v. Wilson, 2 Vern. 572 ; Gillet ij. Wray, 
 
 (0) Wheeler v. Bingham, 3 Atk. 368 ; 1 P. Wms. 286: 1 Bop. Legs. 658. 
 Lloyd V. Branton, 3 Mer. 118. (<) Hemmings v. Munckley, 1 Bro. C. 
 
 (p) Underwood ■U.Morris, 3 Alk. 184; C. 303; Scott v. Tyler, 2Bro. C.C.489; 
 
 Eeynish v. Martin, 2 Atk. 330. Stackpole v. Beaumont, 3 Ves. 89. 
 
 (5) Holmes v. Lysight, 2 Bro. P. C. (u) Clarke v. Parker, 19 Ves. 1 ; Mal- 
 
 261; Hemmings t). Munckley, 1 Bro. C. colra v. O'Callaghan, 2 Mad. 349, 354; 
 
 C. 303 ; Scott V. Tyler, 2 Bro. C. C. 489 ; Gillet v. Wray, 1 P. Wms. 284 ; Lloyd 
 
 2 Dick. 712; Creagh v. Wilson, 2 Vern. v. Branton, 3 Mer. 108, 116. 
 
 ' See ante, 395, note; and notes to Scott v. Tyler, 2 Lead. Cas. Eq.p. i., 333 
 (1 Am. ed.), and cases cited. ' 
 
728 ,0P DISCRETIONARY POWERS. 
 
 r*4Q71 ^*'^<"** ^^^^ consent, *although it did not appear tbat the 
 trustees opposed the mamage.(a;) Where the limitation over 
 is made to take effect on the death of the first donee, without mar- 
 rying with the required consent, it is uncertain, whether the donee 
 could entitle himself to the gift by a second marriage with the proper 
 consent, where he had been previously married without such con- 
 sent. («/) Upon principle, it would seem, that he might do so. How- 
 ever, it is clearly settled, that a condition, requiring consent, will be 
 satisfied by the first marriage without the required consent. And a 
 second marriage without consent will not, therefore, prejudice the 
 legatee.(2) 
 
 Where the interest is given so as to vest absolutely in the donee 
 at a certain period, with a general and unlimited condition, that he 
 should not marry without the trustees' consent, the necessity of ob- 
 taining the consent will cease, when the interest becomes vested. 
 For instance, where a legacy is given to a child at twenty-one, pro- 
 vided that if he marry without the consent of trustees, there should 
 be a forfeiture. The legatee will take, absolutely discharged from 
 the condition, upon attaining twenty-one. (a) It will doubtless be ob- 
 served that this is in the nature of a subsequent condition. 
 
 Where a testator, by his will, requires the consent of his execu- 
 tors or trustees to the marriage of his daughter, who is single at the 
 date of the will, and the daughter afterwards marries in the testator's 
 lifetime with Ms approlation, the condition will be dispensed with; 
 nor will it be applicable to a second marriage of the daughter after 
 the testator's death.(6) 
 
 The court, in construing these conditional gifts, will struggle more 
 earnestly to dispense with the condition in favor of children, or 
 where the donor stands in loco parentis to the donees, than where 
 the will or settlement is made by a mere stranger. (c) 
 
 Having thus considered generally how far these provisions, re- 
 quiring the consent of the trustees to a marriage, will be enforced — 
 
 (a:) Long u. Ricketts, 2 S. & St. 179; Beaumont, 3 Ves. 89; but see Mal- 
 
 but see Harvey v. Aston, 1 Atk. 375; colm v. O'Callaghan, 2 Mad. 354; and 
 
 Pollock V. Croft, 1 Mer. 184. Lloyd v. Branlon, 3 Mer. 108 ; see 
 
 (y) Malcolm v. O'Callaghan, 2 Mad. Graydon v. Hicks, 2 Atk. 18. 
 
 349. (6) Clarke v. Berkeley, 2 Vera. 720; 
 
 (z) Hutcheson v. Hammond, 3 Bro. Crommelin v. Crommelin, 3 Ves, 227; 
 
 C. C. 128, 146; Crommelin v. Crom- Parnell u. Lyon, 1 V.&B. 479; Wheeler 
 
 melin, 3 Ves. 227; Lowe u. Manners, 5 v. Warner, 1 S. & St. 304; Smith v. 
 
 B. & Aid. 917; 1 Rop. Legs. 709, 10. Cawdery, 2 S. & St. 358; Coventry i;. 
 
 (a) Pullen v. Ready, 2 Atk. 587 ; Des- Higgins, 8 Jur. 182. 
 
 body V. Boyville, 2 P. Wms. 547; (c) Berkley i;. Ryder, 2 Ves. 537; 
 
 Knapp V. Noyes, Ambl. 662 ; Osborn v. Burleton v. Humfrey, Ambl. 256. 
 Brown, 5 Ves. 527; see Stackpole v. 
 
OF DISCKETIONARY POWERS. 729 
 
 ■ffe ■ffill now proceed to examine in what manner a power to consent 
 to a marriage must be exercised by the trustees.* 
 
 And first, What will be a sufficient consent by the trustees to a 
 marriage, in order to satisfy the condition. And this consent may 
 be, in some cases, either " express" or "implied." 
 
 It is not absolutely necessary to the validity of an express consent, 
 that it should be given to some particular marriage then in contem- 
 plation ; but a general license, giving the party " free leave and con- 
 sent to marry whomsoever she choosed," will bo sufficient, if acted 
 upon.(cZ) And where a consent in writing by the trustee was not ex- 
 pressly required by the will, a general verbal consent, by him, for 
 the legatee to marry " whomsoever *she pleased," under which r-^ .qq-, 
 she afterwards married, has been held to satisfy the condi- L J 
 tion.(e) 
 
 And the court, in its anxiety to get rid of conditions of this de- 
 scription, has construed very loose and inconclusive expressions of 
 the trustee into an express consent. Thus, statements in a letter, 
 that the trustee "would be obliged to consent ;"(/) or "that he 
 would never stand in the way of any arrangement by the co-trus- 
 tees ;"(^) or "that he should not oppose" the marriage ; (A) or "you 
 know you have my consent ;"(«') or that the trustees "were ready to 
 consent ;"{Je) have been held sufficient. 
 
 It is settled that, if a consent m writing be not expressly required, 
 there may be an implied or tacit consent arising from the conduct of 
 the trustees, where the facts in evidence show that the consent has 
 been given substantially, though not in terms(Z) — as where they have 
 been privy to, and have encouraged, or, at any rate, have not discou- 
 raged the courtship. (m) And it will be an additional reason for adopt- 
 ing this construction, if the party by whom the consent is to be given, 
 himself takes a beneficial interest in the property in case of the for- 
 feiture of the first donee; although there may be no suggestion of 
 fraud. (n) However, the most proper ground on which these decisions 
 are to be rested, appears to be this, viz., that it would amount to a con- 
 
 ((f) Mercer «. Hall, 4 Bro. C. C. 328. {I) Harvey v. Aston, 1 Atlc. 375; 
 
 (c) Pollock ■«. Croft, 1 Mer. 181. Mesgrett v. Mesgrett, 2 Vera. 581; 
 
 (/)Daleyt).Desbouverie, 2Atk. 261; Clark?;. Parker, 19 Ves. 12, 24; O'Cal- 
 
 but see Clarke v. Parker, 19 Ves. 12! laghan v. Cooper, 5 Ves. 126. 
 
 and see Dash vpood t). Lord Bulkeley, 10 (m) Mesgrett «;. Mesgrett, 2 Vern. 
 
 Ves. 241. 580 ; Daley v. Desbouverie, 2 Atk. 261 ; 
 
 (g-) D'Aguilar v. Drinkwater, 2 V. & Campbell v. Lord Netterville, 2 Ves. 
 
 B. 225. 534, cited ; Lord Strange v. Smith, 
 
 (ft) Merry v. Ryves, 1 Ed. 1. Ambl. 263. 
 
 (i) VVorthington v. Evans, 1 S. & St. (n) D'Aguilar v. Drinkwater, 2 V. & 
 
 165. B. 225; see Mesgrett v. Mesgrett, 2 
 
 (i) Le Jeune v. Budd, 6 Sim. 441. Vern. 530. 
 
 ' See notes to Scott v. Tyler, 2 Lead. Cas. Eq., p. i. 315, &c. (1st Am. ed.) 
 
730 OF DISCRETIONARY POWERS. 
 
 structive fraud on the legatee, to hold that there was a want of a 
 proper consent, when the parties have been induced to entangle their 
 affections, and ultimately to complete the marriage, on the faith of the 
 apparent approval of the match on the part of the trustees. (o) For 
 it is a settled rule of equitable construction, that an innocent party 
 shall not be held responsible for the breach of a condition, which is 
 occasioned by the fraud or misrepresentation of another.(^) 
 
 But it is clear, that where the consent is required to be given in 
 writing, an implied or tacit, or even an express verbal, consent will 
 not satisfy the condition. (g') However, in case of fraud, the court 
 will interpose, even where there is no written consent, and relieve 
 from the forfeiture, (r) 
 
 Where a consent in writing is all that is required by the trust in- 
 strument, the condition will be satisfied by any writing, however in- 
 formal or incomplete, in which the consent is sufficiently expressed, 
 and which is signed by the persons who have the power of giving 
 their consent.(s) A deed, or other formal instrument, is not neces- 
 sary, unless expressly required by the terms of the trust. And it is 
 
 ... immaterial, that a regular deed *of consent has been pre- 
 L J pared for the signature of the trustees, and that it was their 
 intention to execute the more formal instrument.(i) 
 
 A distinction was once attempted to be established between the 
 terms " consent" and " approbation." In Burleton v. Humfrey,(M) 
 a trust of real and personal estate was declared in favor of the tes- 
 tator's daughter, if she married with the. consent and approbation of 
 the trustee, with a devise over, if she married without such con- 
 sent or approbation. The daughter married without the trustee's 
 consent or knowledge, but he subsequently gave his approbation to 
 the marriage ; and Lord Hardwicke determined, that the condition 
 required only the consent or the approbation of the trustee, and the 
 subsequent approbation was therefore sufficient.(2:) However, his 
 Lordship did not venture to rest his decree on the distinction thus 
 taken by him, which was afterward disapproved of both by Lord 
 Thurlow and Lord Eldon.(«/) Again, in the case of Berkley v. Ey- 
 diev,(z) where the marriage was to be with the consent and approba- 
 tion of the trustees. Lord Hardwicke himself did not attempt to 
 
 (o) Clarke v. Parker, 19 Ves. 12, 18, 165; Daley v. Desbouverie, 2 Alk. 261; 
 
 19; Dashwood v. Lord Bulkeley, 10 Merryw. Ryves, 1 Ed. 1; D'Aguilar «. 
 
 Ves. 243; D'Aguilar v. Drinkwater, 2 Drinkwater, 2 V. & B. 225; Le Jeune 
 
 V. &B. 234. u-Budd, 6Sim. 441. 
 
 (p) Clarke v. Parker, 19 Ves. 17, 18. («) Worthington v. Evans, 1 S. & St. 
 
 Iq) Clarke v. Parker, 19 Ves.' 12; 165. 
 
 D'Aguilar v. Drinkwater, 2 V. & B. 230. («) Ambl. 256. 
 
 (r) Lord Strange v. Smith, Ambl. (a;) Burleton v. Humfrey, Ambl. 256. 
 
 263 ; Clarke v. Parker, 19 Ves. 18, 19; {y) See 19 Ves. 21. 
 
 see Farmer t). Compton, 1 Rep. Ch. 1. (z) 2 Ves. 533. 
 
 (s) Worthington v. Evans, 1 S. & St. 
 
OF BISCRETIONART POWERS. 731 
 
 maintain this distinction, and in several subsequent cases, where the 
 same expressions occurred, such a distinction has not been raised. (a) 
 The dictum of Lord Hardwicke in Burleton v. Humfrey must there- 
 fore be regarded as overruled, and the two terms treated as having 
 the same operation in conditions of this nature. 
 
 This leads to the observation, that the consent or approbation of 
 the trustees, must be given previously to the marriage. It was ob- 
 served by Lord Hardwicke in the case of Reynish v. Martin,(5) that 
 if the legatee " married without the consent of the trustees, their 
 consent or approbation afterwards was immaterial, — because no sub- 
 sequent approbation could amount to a performance of the condition, 
 or dispense with a breach of it."(6) And as it was forcibly put by 
 Lord Thurlow when remarking on the decision in Burleton v. Hum- 
 frey, " If subsequent approbation were sufficient after eleven months, 
 he did not see why it would not do at any time during the whole 
 life of the trustee ; during which it must be quite uncertain, whether 
 the marriage was had in conformity with the condition or not. "(c) 
 The only case opposed to this doctrine, is that of Burleton v. Hum- 
 frey,(^) which has just been discussed, and which has been com- 
 pletely overruled on this point by a series of subsequent deci- 
 sions.((3) 
 
 However, it appears from the observations of Sir J. Leach, V. C, 
 in the modern case of Worthington v. Evans,(/) that if a trustee 
 had actually approved of a marriage, and was prevented from exe- 
 cuting a previous formal consent in writing hy some accident, and 
 not from any change of purpose, the court would consider his con- 
 sent to have been substantially given according to the will. In that 
 case the formal consent was executed by the trustee a few hours 
 after the solemnization of the marriage, but as there was a letter 
 from him, which was held to amount to a sufficient previous consent 
 in writing, it was not necessary to decide *the case on the 
 principle above stated. But there can be little doubt, that •- -< 
 the court if necessary would act upon that principle, and relieve 
 from strict non-performance of the condition under similar circum- 
 stances, on the ground that the condition was in fact substantially, 
 though not literally performed. And such a jurisdiction would de- 
 pend upon the broad equitable principle of relieving from the con- 
 sequences of innocent mistake or accident. (^) 
 
 (a) See Hemraings v. Munckley, 1 Berkley v. Ryder, 2 Ves. 532; Clarke 
 
 Bro.C.C. 304; Malcolms. O'Callaghan, v. Parker, 19 Ves. 1; Malcolm v. 
 
 2 Mad. 349, O'Callaghan, 2 Mad. 349; Long v. 
 
 (6) Reynish v. Martin, 3 Atk. 331. Ricketts, 2 S. & St. 179. 
 
 (c) See Clarke v. Parker, 19 Ves. 21. (/) i S. & St. 172. 
 
 {d) Ambl. 256. (g-) O'Callaghan v. Cooper, 5 Ves. 
 
 (e) Reynish v. Martin, 3 Atk. 331; 117, 125; ante, Pt. I. Div. II. Ch. II. 
 
732 OF DISCRETIONARY POWERS, 
 
 If a trustee once gives his absolute consent to a marriage after 
 full information of all the circumstances connected with it, he can- 
 not afterwards withdraw that consent.(A) And the reason is, that 
 the parties are to be considered to have acted upon the license, and 
 it would be doing violence to their feelings, as well as to the inten- 
 tions of the testator, to permit the consent to be countermanded 
 without some new reason, which goes to the propriety of the original 
 assent. (i) 
 
 But if previously to the solemnization of the marriage, the trustees 
 become informed of circumstances, which ought to have operated at 
 first to make them withhold their consent, it would become their 
 duty, and they would unquestionably have the power, to jetract their 
 consent. (A) 
 
 So the consent may be given "conditionally," if there be nothing 
 unreasonable or improper in the condition reserved. Thus an assent 
 to a marriage, provided the husband make a settlement according to 
 a previous proposal ;{]) or, if the co-trustees will consent,{rn) will be 
 a conditional assent. And if the parties afterwards fail or refuse to 
 perform the condition on which the consent was given, it may pro- 
 perly be withdrawn. (w) But where the consent is given conditionally 
 on the making of a settlement, it is settled, that a settlement, made 
 after the marriage in pursuance of a previous proposal, will be a 
 sufficient substantial performance of the condition, although strictly 
 a settlement before the marriage was in the contemplation of the 
 parties. (o) 
 
 Where the consent of two or more trustees is required to a mar- 
 riage, the consent must be given by all who accept the trust.(|i) 
 Unless indeed the dissenting trustee be actuated by an unreasonable 
 or improper motive in refusing his assent. (g') 
 
 A contrary dictum is attributed to Lord Chief Baron Comyns, in 
 the case of Harvy v. Aston,(r) as reported in Atkyns, where the 
 Chief Baron is stated to have said, that the consent of the major 
 part of the trustees would be sufficient ; but in Clarke v. Parker,(s) 
 
 Qi) Le Jeune v. Budd, 6 Sim. 441; 117; Dashwood v. Lord Bulkeley, 10 
 
 Farmer v. Compton, 1 Kep. Ch. 1 ; Ves. 230. 
 
 Lord Strange v. Smith, Ambl. 263; (m) D'Aguilar v. Drinkwater, 2 V. 
 
 Merry v. Syves, 1 Ed. 1 ; Dashwood v. & B. 235, 6. 
 
 Lord Bulkeley, 10 Ves. 242; D'Aguilar (n) Dashwood u. Lord Bulkeley, 10 
 
 V. Drinkwater, 2 V. & B. 234. Ves. 230. 
 
 (t) iRop. Legs. 699; see 2 V. & B. (o) 5 Ves. 117,; 10 Ves. 244. 
 
 234. (p) Clarke v. Parker, 19 Ves. 1. 
 
 {k) Clarke v. Parker, 19 Ves. 13; (g) Peyton u. Bury, 2 P. Wms. 626, 
 
 Dashwood v. Lord Bulkeley, 10^ Ves. 8; Mesgrett v. Mesgrett, 2 Vera. 580; 
 
 242. Clarke v. Parker, 19 Ves. 12, 18. 
 
 {I) O'Callaghan v. Cooper, 5 Ves. (r) 1 Atk. 375. 
 
 (i) 19 Ves. 13, 24. 
 
OE DISCRKTIONARY POWERS. 733. 
 
 Lord Eldon in dissenting from that doctrine said, that the Chief 
 Baron expressed no such dictum; and that eminent judge observed, 
 that there was no case in which it had been *held, that the p^cA-i-i 
 consent of three trustees being required, the consent of two L -^ 
 would do, the third not having been at all consulted.(i) 
 
 And it is immaterial, that the testator, by requiring the consent of 
 the trustees, or the survivors, or the representatives of the survivors, 
 shows that he did not attach any importance to the consent of the 
 particular parties who are named ; for if he have expressed that 
 those persons whom he states shall give their consent, the court has 
 no authority to strike out that condition, and deprive those who 
 under an express devise over have an interest given to them.(M) 
 
 However,' it is conceived, that one trustee may properly authorize 
 his co-trustees to give the required consent on his behalf, and the 
 condition will be satisfied by the consent of those, who are thus 
 authorized, on behalf of their whole number. (a;) For such an au- 
 thority would be construed into an express assent on the part of the 
 trustee, by whom it was given, provided that his co-trustees should 
 also assent. (y) 
 
 And it has been decided, that in general the power of giving or 
 withholding consent to a marriage, is vested in executors and trustees 
 only in that character, and not personally ; and therefore the consent 
 of those who have not acted, or who renounce the trust, will not be 
 requisite. (2) 
 
 If, however, it be evident, that the power is intrusted to the donee 
 from confidence in his personal discretion, and not merely in his 
 character of executor or trustee, his renunciation of the office will 
 not remove the necessity of obtaining his consent.(a) 
 
 Even where there is a condition precedent, requiring the consent 
 of trustees to a marriage, if one or more of the trustees should die, 
 the condition, so far as it regards the deceased parties, will be dis- 
 pensed with by their death ; for the strict performance of the con- 
 'dition is rendered impossible by the act of God. (5) 
 
 And it follows from the same principle, that on the death of all 
 the persons whose consent is rendered necessary, the condition, 
 though precedent, will be altogether gone, and the legatee will take 
 absolutely. 
 
 And if the condition be subsequent, and the consent of the execu- 
 tors or trustees in the plural number only be required, and one of the 
 
 (i) Clarke v. Parker, 19 Ves. 17. (z) Worthington v. Evans, 1 S. & St. 
 
 (u) Per Lord Eldon, 19 Ves. 15. 165; see Clarke v. Parker, 19 Ves. 16. 
 
 (a;) Daley v. Desbouverie, 2 Atk. (a) Graydon v. Graydon, 2 Alk. 16, 
 
 261; Clarke v. Parker, 19 Ves. 17; 19; as stated and explained, 1 Rop. 
 
 D'Aguilar v. Drinkwater, 2 V. & B. 225. Legs. 695, 696. 
 
 iy) 2 V. & B. 235, 6. (6) 1 Rop. Legs. 691. 
 
734 OF DISCRETIONARY POWERS. 
 
 two executors or trustees die, the condition is gone, inasmuch as it 
 can no longer be literally performed, and the consent of the sur- 
 viving executor or trustee will not be requisite.(c) A fortiori, there- 
 fore, the condition will be extinguished by the death of all the parties, 
 whose consent is required. (d^) 
 
 It is perhaps unnecessary to add, that these last decisions cannot 
 apply where the death of the original trustee is provided for, and the 
 power of giving the required consent is extended by the trust instru- 
 ment to the surviving trustees, and the representatives of the sur- 
 vivor.(e) 
 
 The exercise of a discretionary power of assenting, to a marriage 
 is under the control of a court of equity. The court will not suffer 
 P^..- that *power to be abused, but will examine into the conduct 
 L J and motives of the persons intrusted with it, in order to ascer- 
 tain whether a refusal to consent proceeds from a vicious, corrupt, or 
 Unreasonable cause : and in that case it will relieve from the legal 
 forfeiture incurred by a marriage without consent. (/) This equi- 
 table jurisdiction has been characterized by Lord Eldon as a "dan- 
 gerous power," and one which it is difficult and delicate to exercise.(^) 
 However, there is no question as to the power and readiness of the 
 court to exercise it in a proper case. Thus in Mesgrett v. Mesgrett,(A) 
 the property was to go over to the daughter of one of the guardians 
 upon a marriage without consent. He encouraged the proposal, and 
 then affected to say he had not given his consent, for the purpose of 
 obtaining the property for his daughter. The court considered that 
 an abuse of the power, and relieved against the want of the formal 
 consent. (A) 
 
 And the court will also relieve, where the required consent is re- 
 fused from motives of personal pique or resentment, or for some 
 capricious and insufficient reason, more especially if the previous 
 conduct of the trustee had encouraged or facilitated the engage- 
 ment.(i) And Lord Hardwicke rested his decision in Daley v. Des- 
 bouverie(^) upon the principle now under discussion, rather than on 
 the sufficiency of the actual consent there given. (Z) 
 
 Upon the same principle, where a trustee refuses to exercise his 
 
 (c) Peyton v. Bury, 2 P. Wms. 626; (A) Mesgrett v. Mesgrelt, 2 Vern. 
 see Jones v. Suffolk, 1 Bro. C. C. 528. 580 ; see 10 Ves. 243. 
 
 (d) Graydon v. Hicks, 2 Atk. 16, 18 ; (t) Lord Strange v. Smith, Ambl. 264; 
 Aislabie v. Rice, 3 Mad. 256; 8 Taun- see 10 Ves. 242, 243 ; Merry v. Ryves, 
 ton, 459. 1 Ed. 1 ; see Peyton v. Bury, 2 P. Wms. 
 
 (e) See Clarke «. Parker, 19 Ves. 15. 628. 
 
 (/) 1 Rop. Legs. 697. {k) 2 Atk. 261. 
 
 (g-) See Dashwood v. Bulkeley, 10 {I) See 19 Ves. 19. 
 Ves. 245; Clarke v. Parker, 19 Ves. 12, 
 18. 
 
POAVERS AND DUTIES OF TRUSTEES, ETC. 735 
 
 power of giving his consent to a marriage, the court, contrary to the 
 practice in other cases, ■will itself assume the exercise of that dis- 
 cretion, and upon the trustee by his answer refusing to interfere, it 
 will refer it to the Master to consider, whether the marriage be a 
 proper one, and to receive proposals for a settlement. (m) 
 
 *CHAPTER III. [*503] 
 
 OF THE POWERS AND DUTIES OF TRUSTEES AS BETWEEN 
 THEM AND THIRD PERSONS. 
 
 It has been already stated,(a) that where the legal title is vested 
 in trustees, all actions at law relating to the trust property must be 
 brought by them, or in their names.' And at law, the power of re- 
 leasing or compromising the claim, on which an action is founded, is 
 commensurate with that of bringing and maintaining the action. (6) 
 However, a trustee will not be suffered to exercise his legal powers to 
 the prejudice of the cestui que trusts, and a release by the trustee 
 without any consideration, would unquestionably be set aside in 
 equity, although the party released had no notice of the trust. And 
 the case for relief would of course be still stronger, if the party re- 
 leased had actual notice of the trust. Thus where a bond had been 
 taken by a person in the name of a trustee, and the bond was after- 
 wards put in suit by the cestui que trust in the trustee's name, and 
 judgment was entered up against the defendant for the amount, the 
 defendant, with full knowledge of the trust, paid the money to the 
 trustee, but he was decreed to repay it with costs to the representa- 
 tives of the cestui que trust on a bill filed by them for that purpose.(e) 
 And the cestui que trust in such a case will also have his remedy 
 against the trustee personally. And in an early case, where a trustee 
 had released a recognisance without any consideration, he was de- 
 creed on the suit of the cestui que trust to repay the principal and 
 interest. (<^)^ 
 
 Upon the same principle, if an action were compromised by a 
 trustee without any special authority, the cestui que trust would 
 doubtless be entitled to annul the compromise, and to hold the party 
 to his original obligation. Even at law, a fraudulent release of an 
 
 (m) Goldsmid v. Goldsmid, 19 Ves. (c) Pritchard «. Langher, 2 Vern. 197. 
 
 368 ; S. C. Coop. 225. [Ante, 449.] 
 
 (a) Ante, p. 274, 316. (rf) Jevon v. Bush, 1 Vern. 342. 
 (6) Ante, ubi supra. 
 
 ' See ante, page 274, and notes. ' See ante, page 274, note (1). 
 
736 POWERS AND DUTIES OF TRUSTEES 
 
 action by a trustee, will not be a good plea to the action, and the 
 release will be ordered to be cancelled.(e) ,It has been laid down, 
 that a tender to the cestui que trust of money due on a bond, is a 
 good plea for the debtor at law to an action by the trustee on the 
 bond ;(/) and this decision might probably still be supported, on the 
 ground that the cestui que trust was the trustee's agent for the pur- 
 pose of receiving the debt. However, it is now settled, that the debtor 
 in an action by a trustee cannot set off a debt due from the cestui 
 que trust.{g) 
 
 It has been already stated, that where the trustee neglects to bring 
 r*'i041 ^^ *action within the time fixed by the Statute of Limitation, 
 the remedy as against the stranger will be barred ; and this 
 though the cestui que trust is an infant. (A)^ And conversely from 
 these decisions it must follow, that the Statute of Limitation will not 
 run as long as the trustee, having the legal right of bringing an ac- 
 tion, is under disability.(2) And so on the other hand, the acknow- 
 ledgment of a debt by the trustees, or by one of several trustees, for 
 the payment of debts, will take the debt out of the Statute of Limita- 
 tion in favor of the creditor. (A;) 
 
 In dealings between purchasers and trustees for sale, where the 
 late Act 7 & 8 Vict. c. 76 applies, a bona fide purchaser may in 
 general safely pay over the purchase-money to the trustees, upon 
 their receipt only. And even before the passing of that act, a pur- 
 chaser would have been equally safe in dealing with the trustees, if 
 there was a provision in the trust instrument empowering the trus- 
 tees to give sufficient discharges for the money paid to them.(Z) It 
 was contended by counsel in argument in the case of Binks v. Lord 
 Kokeby,(m) that a power for the trustees to give acquittances, was not 
 equivalent to a provision that the purchaser should not be bound to 
 see to the application of the purchase-money, and that an express 
 negative declaration was requisite for that purpose. It was not neces- 
 
 (e) Legh i;. Legh, 1 B. & P. 447; P. Wms. 309; and see Earl «. Countess 
 
 Danerman v. Radenius, 7 T. B. 670, b; of Huntingdon, lb. 310, n.; sad vide 
 
 Payne v. Rogers, Dougl. 407 ; Hickey v. Allen v. Sayer, 2 Vern. 368 ; see ante, 
 
 Birt, 7 Taunt. 48; Anon. 1 Salk. 260; p. 264, &c. 
 
 Manning v. Cox, 7 Moore, 617 ; Barker (i) Ante, ubi supra. 
 
 V. Richardson, 1 Y. & J. 362. [See ante, (A) St. John v. Boughton, 9 Sim. 219. 
 
 274, note (1).] [Toft v. Stephenson, 9 Engl. L. & Eq. 
 
 (/) Lynch v. Clemence, 1 Lutw. 577 ; 86.] 
 
 7 Bac. Abr. 186; [contra, Chahoon v. (Z) Binks i;. Lord Rokeby, 2 Mad. 227; 
 
 Hollenbach, 16 S. & R. 425.] Drayson v. Pocock, 4 Sim. 283; Roper 
 
 (g) Tucker v. Tucker, 4 B. & Ad. 745. v. Halifax, 2 Sugd. Pow. App. 3 ; Keon 
 
 [Ante, 274, note (i/).] v. Magawly, 1 Br. & W. 401. 
 
 (/i) Wych V. East India Company, 3 (m) 2 Mad. 238. 
 
 ' See ante, 264, &c., and notes. 
 
AS BETWEEN THEM AND THIRD PERSONS. 737 
 
 sary to decide the point in that case ; but it is conceived, that a 
 simple power for the trustees to give discharges is abundantly suffi- 
 cient for all purposes, and the decision in Drayson v. Pocock(w) is an 
 authority to that effect. 
 
 And the nature and objects of the trust might also enable the trus- 
 tees to discharge a purchaser for the money paid to them by him, 
 although the trust instrument conferred on them no express power to 
 give such discharges.^ For instance, where there was a general trust 
 for sale, and the purposes to which the money was to be applied, 
 were unlimited and undefined, — as where there was a trust for the 
 payment of debts generally in the first place,(o) or a direction that 
 the money should form part of the personal estate,(oo) or where the 
 trusts were not capable of immediate satisfaction, as in the case of a 
 trust for the payment of debts to he ascertained at a future period,{p) 
 or a trust for reinvestment in the purchase of land,{q) or for the 
 benefit of persons, who were infants or unborn at the time of the 
 sale.(r)(l) So it has been already stated,(s) *that under ar^cQc-i 
 trust for the payment of debts, a purchaser from the trustee 
 was not in general bound to ascertain the existence of any debts, or 
 the necessity of the sale :(t) and also that if there were a primary 
 trust for the payment of debts, the purchaser would be equally ex- 
 onerated from seeing to the application of the money, although there 
 might be also a trust to pay legacies,(M) or annuities. (2;) 
 
 (j») 4 Sim. 283. (r) Sowarsb}' v. Lacy, 4 Mad. 142 ; 
 
 (0) Culpepper v. Aston, 2 Ch. Ca. 115; Lavender v. Stanton, 6 Mad. 46; Bree- 
 Anon. Salk. 153; Dunch«.Kent, 1 Vern. don v. Breedon, 1 ft. & M. 413. 
 160; Jenkins v. Hiles, 6 Ves. 654, n.; (s) Ante, p. 397. 
 Williamson v. Curtis, 3 Bro. C. C. 96; [t) Johnson v. Kennett, 3 M. & K. 
 Barker v. Duke of Devonshire, 3 Mer. 631; 6 Sim. 384; Langley v. Earl of 
 310; BinksD. Lord Rokeby,2 Mad. 238 ; Oxford, Ambl. 797 ; Forbes v. Peacock, 
 Shaw i). Borrer, 1 Keen, 559 ; Forbes 1;. 11 Sim. 152, 160; Eland v. Eland, 4 
 Peacock, 11 Sim. 152, 160; Jones v. M. & Cr. 428; 1 Beav. 235; Page v. 
 Price, lb. 557; Rogers v. Skillicome, Adam, 4 Beav. 269, 2S3; Shaw v. 
 Ambl. 188 ; Ball v. Harris, 8 Sim. 485; Borrer, 1 Keen, 559. 
 4 M. & Cr. 264; Eland v. Eland, 1 Beav. («) Rogers v. Skillicome, Ambl. 188 ; 
 235; 4 M. & Cr. 420; Page v. Adam, Jebb v. Abbott, and Benyon v. Collins, 
 4 Beav. 269; Glyn v. Locke, 3 Dr. & Co. Litt. 290, b ; Butl. note (1), Sect. 12. 
 W. 11. (a:) Johnson v. Kennett, 3 M. & K. 
 
 (00) Smith t). Guyon, 1 Bro. C. C. 186. 627; Eland v. Eland, 1 Beav. 241; 4 
 (p) Balfour v. Welland, 16 Ves. 151, M. & Cr. 420; Page v. Adam, 4 Beav. 
 
 156. 269, 284. 
 
 (9) Doran v. Wiltshire, 3 Sw. 699. 
 
 (1) There is a material distinction between a trust to sell for the benefit of in- 
 fants, and a charge of a certain sum for an infant. In the latter case a purchaser 
 can only take the estate subject to the charge. Dickenson v. Dickenson, 3 Bro. 
 C. C. 19. 
 
 ' On the liability of a purchaser to see to the application of the purchase-money, 
 see notes, ante, 342, 363. 
 
 47 
 
738 OF THE POWERS AND DUTIES OF TRUSTEES 
 
 But (previously to the act 7 & 8 Vict. c. 76), if the trusts were of 
 a defined and limited character, and the trust instrument contained 
 no express declaration, that the receipts of the trustees should be 
 sufficient discharges, a purchaser from the trustees with notice of the 
 trust, would have been bound to ascertain that the purchase-money 
 was duly applied according to the trusts ; and if he paid over the 
 money to the trustees, and they misapplied it, the parties interested 
 under the trust would have been entitled to come upon the estate in 
 the hands of the purchaser, and compel the performance of the 
 trust. (?/) Thus we have seen that this equity has been enforced 
 against a purchaser, where the trust was for the payment of certain 
 legacies,(2) or of debts which were scheduled or specified,(a) or where 
 a decree had been made for the payment of debts. (6) Although 
 according to the latter practice, a purchaser would have been exone- 
 rated in these cases by paying the money into court, for that would 
 be considered a payment to the trustees, and for the security of all 
 parties, as the court would see to the due application of the fund.(e) 
 And so where a trust for sale was created by act of parliament, and 
 the money was directed to be applied to certain purposes, such as 
 building and stocking a printing-house, and purchasing land to be 
 settled to the uses of a settlement, it was determined to be incumbent 
 on a purchaser to see the money laid out and employed according to 
 the a.ct.{d) 
 
 Hence, according to the law, as it stood prior to the late alteration, 
 it was essential to the security of a purchaser from trustees to obtain 
 releases from the several legatees or creditors ;(e) for such evidence 
 of the discharge of the estate was requisite to perfect the title in 
 case of a resale. And where the amount of any charge was at all 
 considerable, or they were few in number, it was usual and conve- 
 nient to make the persons, entitled to the charges, parties to the 
 conveyance. (/) 
 
 Where, however, the trust was to invest the purchase-money in 
 the funds, &c., upon trusts, the purchaser in practice was considered 
 to have sufficiently ascertained the application of the money, if he 
 saw it invested by the trustees according to the trust, and procured 
 them to execute *a declaration of the trust. It was the 
 L ^ ^ opinion of Mr. Booth, and also of Mr. Wilbraham, that the 
 
 {y) 2 Sugd. V. & P. 30, et seq. 9th Lord Rokeby, 2 Mad. 238 ; ante, p. [342, 
 
 edit.; ante p. 476 [Power of Sale.] note ; Duffy v. Calvert, 6 Gill, 487.] 
 
 (z) Horn v. Horn, 2 S. & St. 448; (t) Lloyd v. Baldwin, 1 Ves. 173; 
 
 Johnson v. Kennet, 3 M. & K. 630; ante, Walker v. Smallwood, Ambl. 676 ; ante, 
 
 p. [363, note; Duffy v. Calvert, 6 Gill, p. 342. 
 487.] (c) Binks v. Lord Rokeby, 2 Mad. 
 
 (a) Dunch v. Kent, 1 Vern. 260 ; Spal- 239 ; 2 Sugd. V. & P. 34, 9th edit, 
 ding V. Shalraer, Id. 301; Abbott i). (d) Cotterell «. Hampson, 2 Vern. 5. 
 Gibbs, 1 Eq. Ca. Abr. 358; Binks v. (e) 2 Sugd.V. &P. 49, 9tli edit. 
 
 (/) 2 Sugd. V. & P. 49, 50, 9th edit. 
 
AS BETWEEN THEM AND THIRD PEESONS. 739 
 
 liability of the purchaser did not extend further in such cases ; and 
 this view of the law has also been corroborated by Sir E. Sugden, in 
 his work on Vendors and Purchasers.(5') 
 
 In this state of the law, wherever the trust instrument contained 
 no power for the trustees to give sufficient discharges, a purchaser 
 could very rarely he advised to pay over to them the purchase-money 
 without the concurrence of the parties beneficially interested ; unless 
 indeed there were a general trust for the payment of debts overriding 
 the other trusts. (^) The principles upon which this prima facie lia- 
 bility of purchasers has been held not to apply in any other case, 
 besides that of a trust for the payment of debts, are so indefinite and 
 so difficult of practical application, that a purchaser would have run 
 great risk in acting upon them on his own responsibility. 
 
 It may be observed, that the question, whether a trustee could 
 give discharges for the purchase-money, was one of title and not of 
 conveyance, (i) 
 
 The law on this subject has been materially simplified, and the 
 facilities of dealing with trustees in the purchase of property in- 
 creased, by the recent act of 7 & 8 Vict. c. 76. The 10th sect, of 
 that statute enacts, " That the bona fide payment to, and the receipt 
 of, any person to whom any money shall be payable upon any ex- 
 press or implied trust, or for any limited purpose, shall effectually 
 discharge the person paying the same from seeing to the application, 
 or being answerable for the misapplication thereof, unless the con- 
 trary shall be expressly declared by the instrument creating the 
 trust." Therefore, for the future, in all cases coming within the act, 
 bona fide purchasers, or other persons paying money to trustees, 
 will be bound only to ascertain that the money is payable to the party 
 or parties whose receipt they take. And upon this point there can^ 
 seldom be much doubt, as wherever the power of ulterior disposition, 
 or application is vested in the trustees — as for the purpose of rein-- 
 vestment or distribution, &c. — the trustees are unquestionably the- 
 proper persons to receive payment. 
 
 However, the act further requires, that the payment shall be^ bona> 
 fide. Therefore, any collusive or fraudulent transaction between, the 
 trustees and persons dealing with them, either to the detriment; of 
 the cestui que trusts, or to the undue advantage of the parties theni- 
 selves, is not within the benefit of the act ; and in such cases, accord- 
 ing to the old law, the estate will remain affected with the trust in 
 the hands of the purchaser, notwithstanding the fullest powers for 
 the trustees to give discharges, or a general charge of debts over- 
 
 ig) 2 Sugd. V. & P. 37, 9th edit.; 2 Qi) Forbes v. Peacock, 11 Sim. 152, 
 Cas. &0p. 114. 160. 
 
 (i) Forbes v. Peacock, 12 Sim. 528. 
 
740 OF THE POWERS AND DUTIES OF TRUSTEES 
 
 riding the other trusts.(i) Thus, if a purchaser from a trustee in 
 trust to sell and pay debts, and legacies, and annuities, have express 
 notice before paying the money, that all the debts have been paid, he 
 would be liable to the legatees or annuitants, in case the money is 
 not duly applied by the trustees. (?)' 
 
 r*'i071 *-^^^ the conveyance itself may furnish intrinsic evidence 
 of the intended misapplication, so as to fix the purchaser with 
 notice of the breach of trust — as where the consideration is a per- 
 sonal debt, due from the trustee,(wi) — or where it appears from the 
 deed that the money is to be applied for the benefit of the trustee, 
 and not upon the purposes of the trust.(w) 
 
 But it must be shown by positive evidence, that the purchaser was 
 aware of the breach of trust committed, or intended, by the trus- 
 tees ;(o) and it will not be inferred, from the form or mode of the 
 conveyance, that he knew that the sale was not required for the pur- 
 poses of the trust. (j>) Therefore, where there is a general trust for 
 the payment of debts, a purchaser may, in general, safely take a 
 conveyance from the trustees, although the debts, in fact, have been 
 all paid previously to the sale, provided that he has no notice, either 
 actual or constructive, that the payment has been, in fact, made. 
 
 And the mere delay, on the part of the trustees in effecting the 
 sale, will not, of itself, necessarily afiect a purchaser with construc- 
 tive notice, that the debts have been paid, or render it incumbent on 
 him to inquire as to the existence of any debts. (5) And it has even 
 
 (/c) Watkins v. Cheek, 2 S. & St. 199 ; Eland v. Eland, 4 M. & Cr. 427; see 
 
 Eland v. Eland, 4 M. & Cr. 427 ; see Thompson v. Blackstone, 6 Bear. 470. 
 
 Thompson v. Blackstone, 6 Beav. 470. (re) Walkins v. Cheek, 2 S. & St. 
 
 (l) See Johnson v. Kennett, 3 M. & 205, 6. 
 
 K. 631; Ewer v. Corbet, 2 P. Wms. (0) Eland c. Eland, 4 M. & Cr.427,8. 
 
 149; Forbes v. Peacock, 12 Sim. 528, (p) Johnson v. Kennett, 3 M. & K. 
 
 547; but see Page v. Adam, 4 Beav. 624. 
 
 269. (5) Johnson v. Kennett, 3 M. & K. 
 
 (m) Watkins v. Cheek, 2 S. & St. 205 ; 631 ; Eland 0. Eland, 4 M. & Cr. 429 ; 
 
 Paige V. Adam, 4 Beav. 283. 
 
 ' The case of Forbes v. Peacock, 12 Sim. 528, in which this position was laid 
 down, was reversed on appeal by Lord Lyndhur.st (1 Phillips, 717), and the rule 
 established in accordance with Page v. Adam, 4 Beav. 269, that where there is 
 a trust to sell for the payment of debts and legacies, and the purchaser has 
 notice that the debts have been paid, he will nevertheless not be liable: Mather 
 V. Morton, 8 Engl. L. & Eq. 255, accord. From the Reporter's note (1 Phillips, 
 722), it appears that Lord Lyndhurst did not intend this rule to apply to the case 
 where there were no debts at the testators death, and the purchaser knew it. But 
 in Stroughill v. Anstey, 12 Engl. L. & Eq. 369, Lord St. Leonards disapproved 
 of the distinction, and held that in both cases the purchaser would be discharged; 
 and with this Mather v. Morton, ut supra, seems to agree. But see Gosling v. 
 Carter, 1 Coll. C. 648 ; and the remarks in 17 Jurist, pt. ii. 251 ; and Marshall, C. J., 
 in Garnett v. Macon, 2 Brookenb. 238 ; 6 Call, 388. Vide ante, notes to 342 and 
 363. 
 
AS BETWEKN THEM AND THIRD PERSONS. 741 
 
 been decided, that the purchaser's knowledge of the debts having 
 been paid, is immaterial. (r) 
 
 However, in a recent case before the Vice-Chancellor of England, 
 an estate was devised to a trustee in trust for the payment of debts, 
 and subject to that charge for the benefit of certain individuals ; the 
 devisee in trust put up the estate for sale twenty-five years after the 
 testators death; and, upon being asked by the purchaser, whether 
 there were any debts unpaid, he declined answering the question. It 
 was held by the Vice-Chancellor, that, after the lapse of time, and 
 under the circumstances, the debts must be presumed to have been 
 paid, and that the purchaser was bound to see to the application of 
 the money upon the ulterior trusts : the refusal by the trustee to an- 
 swer the question being tantamount to notice to the purchaser that 
 the debts were not paid. And his honor emphatically refused to be 
 bound by Lord Langdale's decision, in Page v. Adam, in which his 
 Lordship had held, that a purchaser from a trustee, with knowledge 
 that all the debts were paid, was not bound to see to the application 
 of the money.(8)^ However, it seems, from his honor's observations 
 in the course of his judgment, that if the purchasers had made no 
 inquiry as to the existence of debts, he might have safely taken a 
 conveyance from the trustees alone, and that the circumstances and 
 lapse of time did not render it incumbent on him to make the in- 
 quiry. 
 
 In Pierce v. Scott,(i) an estate was devised to trustees in trust to 
 sell for the payment of debts on the insuflSciency of the personal and 
 another real estate. Fifteen years after the testator's death the trus- 
 tees contracted for the sale of this estate, and filed a bill to compel 
 the performance of *that contract, alleging the existence of rHtKfvsi 
 debts. It was held, however, that the length of time was a 
 reason for suspecting the existence of debts, and that what was 
 ground for suspicion might be deemed, notice to a purchaser ; and the 
 relief was consequently refused. (i) It seems extremely difficult to 
 reconcile the principle of this decision with the other authorities on 
 the same subject ; and on the whole, the authorities on the point in 
 question are so conflicting, that a purchaser could rarely be advised 
 to accept a title from a trustee for the payment of debts, where there 
 had been an interval of several years since the creation of the trust. 
 
 It has been already stated, that a general power for the trustees 
 to lay out and invest the trust moneys, is an authority for them to 
 do all acts essential to that trust. Therefore, where it becomes ne- 
 
 (r) Page v. Adam, 4 Beav. 283. {t) Pierce v. Scott, 1 Y. & Coll. 257. 
 
 (s) Forbes?;. Peacock, 13 Law. Journ. 
 N. S., Chanc. 46: 12 Sim. 528. 
 
 ' But see note to the preceding page. 
 
742 OF THE POWERS AND DUTIES OF TRUSTEES 
 
 cessary to call in any of the securities, the trustees, without any ex- 
 press authority, are able to give sufficient discharges to the borrowers 
 of the money without the concurrence of the persons beneficially in- 
 terested. (m) 
 
 Where the legal interest with the general power of management 
 is vested in the trustees, it is clear, that the tenants and persons in- 
 debted to the trust estate, may safely pay, and, indeed, are bound to 
 pay, the rents and debts to the trustees, who will be fully competent 
 to give discharges for such payments. 
 
 It has been already observed, that trustees cannot be required to 
 enter into any covenants for title in a conveyance of the trust estate 
 beyond the usual covenant that they have not incumbered. (a;)^ But, 
 if they should enter into any such personal covenants, they will be 
 liable in an action at law by the covenantees in case of a breach. (^) 
 And trustees, whilst in the legal possession of any real, or leasehold 
 estate, will, of course, be liable to strangers in respect of any cove- 
 nants which run with the land. Therefore, if the covenants are such 
 as create any serious personal liability (which is very frequently the 
 case with regard to leasehold property), they will be entitled to an 
 indemnity from the cestui que trusts in respect of those covenants ;(2) 
 as .will also be the case where a trustee enters into personal covenants 
 with the lessor on taking or renewing a lease.(a) But it seems, that 
 the court will be anxious to relieve trustees from the efi"ect of any 
 personal covenants which they may have entered into with third par- 
 ties. And where trustees of a charity estate had granted an im- 
 proper lease, which contained personal covenants with the lessee for 
 quiet enjoyment, the court set aside the lease in toto, and would not 
 suffer those covenants to remain in force against the trustees.(5) 
 And in a late case, where trustees had joined their cestui que trust 
 in a contract of sale, and personally agreed to exonerate the estate 
 from incumbrances ; and it turned out, that the incumbrances were 
 very heavy, the court refused to enforce a specific performance of 
 the agreement against the trustees, so as to compel them to exone- 
 rate the estate, but left the purchaser to his action at law for da- 
 mages, (c) 
 
 (u) Wood V. Harman, 5 Mad. 368; (z) Simons v. Bolland, 3 Mer. 547; 
 
 ante, p. 483 [Power of changing Secu- Cochrane v. Robinson, 11 Sim. 378; 
 
 lities.] ' ante, p. 438. 
 
 (a;) 4 Cruis. Dig., Tit. 32, Ch. 26, s. (a) Marsh v. Wells, 2 S. & St. 90 ; 
 
 87 ; ante, Pt. II., Ch. IV., Sect. 1. ante, 432 [Trustees of Leaseholds.] 
 
 , {y) See Att.-Gen. v. Morgan, 2 fiuss. (6) A«.-Gen. v. Morgan, 2 Russ. 306. 
 
 306; and Wedgwood v. Adams, 6 (c) Wedgwood v. Adams, 6 Beav. 
 
 Beav. 600. 600. 
 
 ' See ante, 281, note. 
 
AS BETWEEN THEM AND THIRD PERSONS. 743 
 
 *We have already seen, that a contract of sale will not be p^rnQ-i 
 specifically enforced by the court of equity where it is a L J 
 breach of trust, and in such cases it is immaterial that the conduct 
 of the purchaser is perfectly fair and proper.((;?) 
 
 There has been already occasion to state, that a purchaser from a 
 trustee (though for valuable consideration) will be bound by the trust 
 in the same manner and to the same extent as the trustee, from 
 whom he purchased, if the purchase be made with notice of the 
 trust :(e) and the title of the purchaser will not be strengthened by 
 levying a fine.{/) And we have also seen, that this rule applies 
 equally, whether the trust is expressly created(^) or arises only by 
 construction of law.(^)' 
 
 However,, the 25th section of the late Statute of Limitation (3 & 
 4 Will. IV. c. 27) provides, that where any land or rent is vested 
 in a trustee upon any express trust, time shall run in favor of a pur- 
 chaser from the trustee for valuable consideration from the time of 
 the conveyance. And the same principle would doubtless be applied 
 a fortiori to constructive trusts. In future therefore bona fide pur- 
 chasers of real estate from a trustee for valuable consideration can- 
 not be called in question by the cestui que trusts, after twenty years 
 have elapsed from the time of the conveyance, whether the purchase 
 was made with or without notice of the trust ;(«') unless the cestui que 
 trusts were under disability at that time, in which case they or their 
 representatives will be allowed ten years from the termination of 
 their disability or from their death •,[k) although in no case could 
 such a conveyance be questioned after a lapse of forty years. (Z) 
 However, this protection is not extended to cases of fraud ; for the 
 26th section of the same statute provides, that time shall run only 
 from the discovery of the fraud by the party beneficially interested, 
 or from the period when with reasonable diligence it might have been 
 discovered. Moreover, time operates as a bar to the claim of the 
 cestui que trusts only as against the purchaser and those claiming 
 
 (d) Mortlock i;. Buller, lOVes. 311; (/) Bovey v. Smith, 1 Vern. 145; 
 vide supra [Powers of Sale]. Ante, Kennedy i;. Daly, 1 Sch. & Lef. 379. 
 477, and see 281. (g) Sanders v. Dehew, 2 Vern. 271 ; 
 
 (e) Ante, p. 164; Winged v. Lefe- Pye v. George, 1 P. Wms. 128; Man- 
 bury, 1 Eq. Abr. 32; Mead v. Orrery, sell v. Mansell, 2 P. Wms. 681. 
 
 3 Atk. 238; Earl Brook v. Bulkeley, 2 (A) Brook v. Bulkeley, 2 Yes. 498; 
 Ves. 498; Taylor v. Stibbert, 2 Ves. Molony v. Kernan, 2 Dr. & W. 31; 
 jun. 437; Crofton v. Ormsby, 2 Sch. & Butcher v. Stapely, 1 Vern. 363. 
 Lef. 583 ; Adair v. Shaw, 1 Sch. & Lef. (i) See section 2. ' 
 
 262. (A) Sect. 16. 
 
 (/) Sect. 17. 
 
 ' Ante, 164, &c., and notes. 
 
744 OF THE POWERS AND DUTIES OP TRUSTEES 
 
 under him ; and the remedies for the cestui que trusts against the 
 trustee still remain untouched by the statute. (»j) 
 
 The provisions of the act are confined to interests in land or real 
 estate, therefore a purchaser from a trustee with notice of chattels 
 personal may still be called to account by the cestui que trusts not- 
 withstanding his length of enjoyment ; subject to the rule of equity 
 against affording relief upon stale demands. (w) 
 
 But where a trustee, being in possession of the trust estate, makes a 
 bona fide conveyance of it for valuable consideration to a purchaser, 
 who has no notice of the trust, the title of the purchaser will be good 
 both at law and in equity, for he has equal equity with the cestui que 
 r*c:im '''^*^' ^^^ *^® *legal conveyance of course gives him the pri- 
 '- -■ ority at law.(o) And hence it is an important subject for 
 consideration, in dealings between trustees and third persons, to as- 
 certain what will be sufficient notice of a trust to a purchaser. 
 
 This notice may be either actual or constructive, and there is 
 no difference between actual and constructive notice in its conse- 
 quences. (jp) 
 
 Of actual notice little can be said. It requires no definition ; and 
 it need only be remarked, that to constitute a binding notice, it must 
 be given by a person interested in the property, and in the course of 
 the treaty for the purchase. Vague reports from persons having no 
 interest, will not affect the purchaser's conscience ; nor will he be 
 bound by notice in a previous transaction, which he may have for- 
 gotten. (5')^ Thus in Wildgoose v. 'Weyland,(r) a man came to the 
 purchaser of a house, and told him to take heed how he bought it, 
 for the vendor had nothing in it but in trust for A. However, the 
 
 (m) See Section 25. (5) 2 Sngd. V. & P. 27fi. 9lh edit. 
 
 (n) Ante, Pt. I. Div. II. Ch. II. Sect. (r) Ibid. Goulds, 147, PI. 67, [but 
 
 1 ; [p. 168, and notes.] see the remarks on this case in Lewis 
 
 (0) Millard's case, 2 Freem. 43; v. Bradford, 10 Watts, 79; and Cur- 
 Finch V. Earl of Winchelsea, 1 P. ren v. Hart, Hardin, 37,] and Cornwal- 
 Wras. 278, 9; 1 Cruis. Dig., Tit. 12, Ch. lis's case, Toth. 254; and see Jones ti. 
 4, s. 12. Smith, 1 Hare, 43, 53 ; [ 1 Phill. 244.] 
 
 (p) Sheldon v. Cox, Ambl. 626; 2 
 Sugd. V. & P. 276, 9th edit. 
 
 •See notes to Le Neve iJ. Le Neve, 2Lead.Cas. Eq. p. i. 145, 1st Am. Ed.; Kerns 
 V. Swope, 2 Watts, 78 ; Jaques v. Weeks, 7 Id. 267 ; Epley v. Witheron, Id. 176; 
 Bradford v. Weeks^lO Id. 79 ; Miller v. Cresson, 5 W. & S. 284 ; Flagg v. Mann, 2 
 Sumn. 491 ; Lewis v. Madisons, 1 Munford, 303 ; King v. Travis, 4 Heyw. 280; 
 Meals V. Brandon, 16 Penn. St. R. 22.'5; Boggs v. Varner, 6 W. & S. 471 ; Butler 
 V. Stevens, 26 Maine, 484. But when the information is sufficiently clear to put 
 the purchaser on inquiry, it has been held immaterial whether it comes from the 
 party interested or a stranger. Curtis v. Mundy, 3 Mete. 406 ; Jackson v. Cadwell, 
 1 Cowen, 622; Pearson v. Daniel, 2 Dev. & Batt. Eq. 360; Curren v. Hart, 
 Hardin, 37. 
 
AS BETWEEN THEM AND THIRD PERSONS. 745 
 
 purchaser was held not to have notice, although this information 
 proved correct, because such flying reports were many times fables 
 and not truth, and if it should be admitted for sufiScient notice, then 
 the inheritance of every man might easily be slandered. So in a 
 more modern case,(s) it was held not to be sufiicient notice, to assert 
 that some other person claims a title. (s) And notice of a mere 
 general claim, as by telling the intended purchaser, that " he would 
 purchase at his peril," will not affect him with notice of an instru- 
 ment, of which he has no other knowledge. (i) However, according 
 to the advice of Sir B. Sugden, no person could be advised to accept 
 a title, concerning which there were any such reports or assertions, 
 without having them elucidated ; because what one judge might think 
 a flying vague report, or a mere assertion, another might deem a 
 good notice. (m) 
 
 The notice will also be insufiicient, unless it is given to the pur- 
 chaser in the same transaction ; for a purchaser is not bound to carry 
 in his recollection a notice, which he may have received on a former 
 occasion :{z) and we shall presently see, that the same rule applies 
 with even greater force to persons acting as agents. (y) 
 
 Verbal declarations will constitute sufficient actual notice of a 
 trust, if such a notice be properly proved. (2) 
 
 Constructive notice in its nature is no more than evidence of 
 notice, the presumptions of which are so violent, that the court will 
 not allow even of its being controverted, (a) But this definition 
 often leaves it very difficult to say, what will or will not amount to 
 constructive notice,(S) and the decisions on this point are not uni- 
 versally satisfactory or even consistent. 
 
 *A public act of parliament binds all mankind ; therefore, ^ 
 a trust created or noticed by such an act will be binding on L J 
 a purchaser for valuable consideration from the trustees in the ab- 
 
 (s) JoUand v. Stainbridge, 3 Ves. (^y) Post. 
 
 ^''S; 486. (2) See Weymouth v. Beyer, 1 Ves. 
 
 (0 3 Ves. 486. jun.425. [Mense d. McLean, 13 Mis- 
 
 («) 2Sngd. V. & P. 277, 9th edit.; souri, 298; Nelsons. Sims, 1 Cushm. 
 
 see the remarks of Hale, C. B., in Fry (Miss.) 383 ; Ingram v. Phillips, 3 
 
 V. Porter, 1 Mod.. 300; and see Butcher Strobh. R. 369.] 
 
 ■tr. Stapely, 1 Vern. 363. (a) 2 Sugd. V. & P. 278, 9th edit. 
 
 (a:) East Grinstead's case, Bridgm. [See Rogers v. Jones, 8 N. H. 264; 
 
 Duke Char. Use, 638; Hamilton v. Farns worth v. Childs, 4 Mass. 640; 
 
 Royse, 2 Sch. & Lef. 315, 327 ; 2 Sugd. Griffith v. Griffith, 1 Hoff. Ch. 156.] 
 
 V. & P. 276,. 7, 9th edit. [See Farns- (6) See Jones v. Smith, 1 Hare, 43, 
 
 worth t). Childs, 4 Mass. 640; but see 55 [affi'd, 1 Phill. 244]'; where the 
 
 Bellas V. Lloyd, 2 Watts, 401 ; and re- law and all the authorities on the ques- 
 
 marks in 2 Lead. Cas. Eq. pt. i.page, tion of constructive notice are elabo- 
 
 154, 1 Am. Ed.] rately considered by V. C. Wigram. 
 
746 OF THE POWERS AND DUTIES OV TRUSTEES 
 
 sence of any positive notice.(c) But a private act of parliament 
 does not, of itself, amount to notice i^d) and it is immaterial that the 
 act contains a direction that it shall be judicially taken notice of as 
 a public act.(e) 
 
 So a Us pendens respecting a trust, will, of itself, be notice to a 
 purchaser.(/)' And when a bill is filed, the lis pendens begins from 
 the service of the subpoena, although a subpoena served will not 
 amount to a sufficient Us pendens uniieas a bill be filed. (^) The ques- 
 tion in the suit must relate to the estate itself, and not solely to 
 money secured on it,[Iif although a bill to perpetuate testimony, and 
 
 (c) 2 Sugd. V. & P. 280, 9th edit.; Bishop of Winchester v. Paine, 11 Ves. 
 Earl of Pomfret z). Lord Windsor, 2 194; Landon i;. Morris, 5 Sim. 247. 
 Ves. 480. (g-) Anon. 1 Vern. 318. [See Lyttle 
 
 (d) 2 Ves. 480. v. Pope, 11 B. Monr. 318; Drew v. 
 
 (e) 2 Sugd. V. & P. 280 ; see 3 Bos. Earl of Norbury, 3 J. & Lat. 282. Pub- 
 & P. 578. lication as to a non-resident defendant, 
 
 • (/) Style V. Martin, 1 Ch. Ca. 150; is equivalent to service of subpoena. 
 
 Sorrell v. Carpenter, 2 P. Wms. 482 ; Chaudron v. Magee, 8 Alab. 570.] 
 Worsley v. Earl of Scarborough, 3 Atk. (A) Worsley v. Earl of Scarborough, 
 
 392; Gore v. Stackpole, 1 Dow. 30; 3 Atk. 392. 
 
 ' Murray v. Ballou, IJ. C. R. 566 ; Murray v. Finster, 2 Id. 1 55 ; Heatley v. Fin- 
 ster. Id. 158 ; Murray v. Lylburn, Id. 441 ; Jackson v. Ketcham, 8 Johns. R. 479 ; 
 Zeiter v. Bowman, 6 Barb. S. C. 133; Owings v. Myers, 3 Bibb. 279; Boiling v. 
 Carter, 9 Alab. 921; Green v. White, 7 Blackf. 242 ; Harris v. Carter, 3 Stewart, 
 233; Tongue v. Morton, 6 H. & J. 21; Price v. White, Bail. Eq. 244; Blake u. 
 Heyward, Id. 208; Walker v. Butz, 1 Yeates, 574; Griffith v. Griffith, 1 Hoffm, 
 Ch. 153. Such purchase, indeed, though 6or!oi_^e, isvoidatlaw, as champertous. 
 Jack.son v. Andrews, 7 Wend. 152; Jackson v. Ketcham, 8 John. R. 479; but see 
 Camp V. Forrest, 13 Alab. 114. In Newman v. Chapman, 2 Rand. 93, however, the 
 policy of the recording acts was considered to have changed the rule on the sub- 
 ject in this country; and in City Council u. Page, Spear's Eq. 159, it was held that 
 lis pendens would not supply the defect of registry. The general doctrine applies 
 equally to choses in action, such as mortgages : Murray v. Lylburn, 2 J. C. R. 
 441 ; see Scudder v. Van Amburgh, 4 Edw. Ch. 29. The bill must, however, refer 
 with sufficient certainty to the lands in question, at least, to put the purchaser on 
 inquiry: Price v. White, Bail. Eq. 244 ; Lewis v. Mew, 1 Strobh. Eq. 180; Green 
 V. Slayter,4 J. C. R.38; Lodge v. Simontown. 2 Pa. Rep. 449; see Holt r. Dewalt, 
 4 Hare, 446. But lis pendens will not affect a prior legal or equitable right. 
 Stuyvesant v. Shore, 1 Sandf. Ch. 419, 2 Barb. Ch. 151; Parks v. Jackson, 11 
 Wend. 452; Trimble v. Boothby, 14 Ohio, 109; Gibler v. Trimble, Id. 323. 
 
 ^ The order for the appointment of a receiver on the petition of a judgment 
 creditor, is not lis pendens, so as to affect a purchaser with notice of the judgment. 
 Tenison v. Sweeny, 1 J. & Lat. 710. But in Scudder v. Van Amburgh, 4 Edw. 
 Ch. 29, it was thought that a purchaser pending a creditor's bill had constructive 
 notice. So of an administration suit: Drew v. Earl of Norbury, 3 J. & Lat. 282. 
 So of a suit to avoid a conveyance as fraudulent : Copenheaver v. HufFaker, 6 B. 
 Monr. 18. But a suit for divorce and for alimony out of the husband's land is 
 not lis pendens, as against a bond fide purchaser of the land : Brightraan v. Bright- 
 man, 1 Rhode Island, 120. 
 
AS BETWEEN THEM AND THIKD PERSONS. 747 
 
 to establish a will, is a suflScient lis pendens.{i) There must also be 
 a continuance of the litis contestatio ; and although it is not essential 
 to continue a constant and vigorous prosecution of the suit (according 
 to the rule laid down by Lord Bacon,(A)) yet something must be done 
 to keep the lis alive and in activity, otherwise the purchaser will not 
 be affected with notice of its existence.(Z) Lord Redesdale appears 
 to have considered, that a purchase, made after the dismissal of a 
 bill, was a purchase pendente lite, if an appeal were afterwards 
 brought, since it was still a question whether the bill were rightly 
 dismissed, (m) However, it was not necessary to decide whether a 
 purchaser, under such circumstances, would be fixed with construc- 
 tive notice of the adverse title.(w) (1) 
 
 . Decrees of courts of equity, where there is no longer any lis pen- 
 dens, are not, of themselves, notice to a purchaser.(o) But it is 
 otherwise, where the decree does not put an end to the suit, as a de- 
 cree for account ; for, in that case, there is still a litis pendentia.{oo) 
 And the purchaser will of course be bound by any decree, of which 
 he has actual notice : and his presence in court, when the decree is 
 pronounced, will constitute sufficient actual notice for this purpose, (p) 
 The registration of a deed will not, of itself, fix a purchaser with 
 constructive notice of its trusts.(5')* But it will be otherwise, if the 
 
 (i) Garth v. Ward, 2 Atk. 174. (o) Worsley v. Earl of Scarborough, 
 
 Ik) See Bishop of Winchester v. 3 Atk. 392; 2 Sugd. V. & P. 283, 9th 
 
 Paine, 1 1 Ves. 200. edit. 
 
 {I) Kinsman v. Kinsman, 1 R. & M. (_oo) Worsley v. Earl of Scarborough, 
 
 617, 622; see Preston ■«. Tubbin, 1 3 Atk. 392 ; Kinsman v. Kinsman, 1 R. 
 
 Vern. 286 ; Bishop of Winchester v. & M. 622. [Turner v. Crebill, 1 Ohio, 
 
 Paine, 1 1 Ves. 194 ; Landon v. Morris, 5 370 ; Blake v. Heyward, Bail. Eq. 208 ; 
 
 Sim. 260. [See Clarksont). Morgan, 6 B. Price v. White, Id. 234; see Winborn 
 
 Monr. 441 ; Shiveley v. Jones, Id. 274; v. Gorrell, 3 Ired. Eq. 1 17.] 
 
 Watson V. Wilson, 2 Dana, 406; Gibler (p) Harvey ■«. Montague, 1 Vern. 124. 
 
 V. Trimble, 14 Ohio, 323; Trimble v. (9) Morecock «). Dickens, Ambl. 678; 
 
 Boolhby, Id. 116; Price u. McDonald, Cater u. Cooley, 1 Cox. 82; Williams 
 
 1 Maryl. R. 483.] v. Sorrel, 4 Ves. 389 ; Bushell?). Bushel], 
 
 (m) Gore v. Stackpole, 1 Dow. 31; 1 Sch. & Lef. 90; Underwood v. Ld. 
 
 [Debell v. Foxworthy, 9 B. Monr. 228 ; Courtown, 2 Sch. & Lef. 64 ; Wiseman 
 
 Watson V. Wilson, 2 Dana, 406.] v. Westland, 1 Y. & J. 117; Hodgson v. 
 
 (n)See 2 Sugd. V. & P. 282, 9th edit. Dean, 2 S. & St. 221. 
 
 (1) By 2 & 3 Vict. c. 11, s. 7, no lis pendens shall bind a purchaser or mort- 
 gagee without express notice thereof, unless a memorandum or minute is duly 
 registered as directed by the act. 
 
 ' The rule is otherwise under the Recording Acts, in force generally in the United 
 States, and it is held that the registry of a deed or mortgage, is notice of its con- 
 tents, and of equities created thereby, or arising therefrom, to all persons claiming 
 under the grantor, any title held by him at the time of the conveyance : 4 Kent's 
 Comm. 174 ; American notes to Le Neve v. Le Neve, 2 Lead. Cas. Eq. p. i. 160 ; 
 and cases cited, among which are Cushing v. Ayer, 25 Maine, 383 ; McMechan 
 
748 OF THE POWERS AND DUTIES OP TRUSTEES 
 
 purchaser search the register, for, in that case, he will be deemed to 
 r*cin-i ^^^^6 ^^^ notice *of the deed ;(?•) unless indeed the search be 
 '- -■ expressly confined to a limited period, in which case it has been 
 
 (r) Bushell v. Bushell, 1 Sch. & Lef. 103. 
 
 V. GrifRng, 3 Pick. 11 ; Peters v. Goodrich, 3 Conn. 146 ; Parkist v. Alexander, 1 
 J. C. E. 394 ; Wardell u. Wadsworth, 20 Johns. R. 663; Plume v. Bone, 1 Green's 
 R. 63 ; Evans v. Jones, 1 Yeates, 174 ; Irvin v. Smith, 17 Ohio, 226 ; Martin v. Sale, 
 Bail. Eq. 1; Shultz ij. Moore, 1 McLean, 520: Hughes v. Edwards, 9 Wheat. 
 489 ; see Mundy v. Vawtier, 3 Gratt. 518, where the record of a deed of all the 
 grantor's property, real and personal, was held not notice. This does not, how- 
 ever, apply where the recording of the instrument is not legally requisite, or it is 
 defectively executed or acknowledged : cases in notes to Le Neve v. Le Neve, 
 lit supra ; Moore v. Auditor, 3 Henn. & Munf. 445 ; Sumner v. Rhodes, 14 Conn. 
 135; Walker v. Gilbert, 1 Freem. Ch. 85 ; Harper v. Reeves, Id. 323 ; Isham v. Ben- 
 nington Iron Co., 19 Vern. 230; Graham v. Samuel, 1 Dana. 166; Pitcher i). Bar- 
 row, 17 Pick. 371 ; Thomas v. Grand Gulf Bank, 9 Sm. & M. 201; Green v. 
 Drinker, 7 W. & S. 440; Shultz v. Moore, 1 McLean, 520; Brown v. Budd, 2 
 Carter (Ind.), 442; Choteau v. Jones, 11 Illinois, 300; nor where it is recorded 
 in a different county from that in which the lands lie : Astor v. Wells, 4 Wheat. 
 466 ; Kerns v. Swope, 2 Watts, 15 ; or, d fortiori, in another State. Hundley v. 
 Mount, 8 S. & M. 387 ; Lewis u. Baird, 3 McLean, 56 ; Crosby v. Huston, 1 Texas, 
 203. The record also is not notice to those not claiming title under the same 
 grantor, ante, p. 172, note 2; 2 Lead. Cas. Eq. pt. i. 162. 
 
 An unrecorded deed is, in general, good between the parties : 4 Kent, 456, cases 
 cited. And where a subsequent purchaser has knowledge of the existence of 
 such a deed, it is equivalent as to him, to registry, and is treated as such both at 
 law and in equity: Jackson v. Leek, 19 Wend. 339 ; Jackson v. Sharp, 9 John. R. 
 163 ; Porter v. Cole, 4 Greenl. 20; Farnsworlh v. Childs, 4 Mass. 637 ; Martin v. 
 Sale, Bail. Eq. 1; Coney v. Caxton, 4 Binney, 140; Solms v. McCuUough, 5 
 Barr, 473; Pike v. Armistead, 1 Dev. Eq. 110; Van Meter v. McFadden, 8 B. 
 Monr. 442 ; Ohio Ins. Co. v. Ledyard, 8 Alab. 866; McRaven v. McGuire, 9 Sm. 
 & M. 34; McConnel v. Reed, 4 Scamm. 117; Notes to Le Neve v. Le Neve, ut 
 supra. But see, in Ohio, as to mortgages: Mayham v. Coombs, 14 Ohio, 428. 
 
 But the authorities are at variance with regard to the character of the 
 notice, which will postpone a recorded to a prior unrecorded deed. The 
 cases in England, since Hine v. Dodd, 2 Atkyns, 275, place the relief given 
 against the subsequent purchaser, which is there only in equity, on the ground 
 of fraud (see Le Neve v. Le Neve, ut supra; Fleming v. Burgin, 2 Ired. Eq. 
 584; Ohio Ins. Co. u. Ross, 2 Mary. Ch. Dec. 35), on vvhich alone, it is sup- 
 posed, the act of parliament could be broken in upon ; and, therefore, require 
 clear proof of actual notice, which is considered equivalent to fraud. In some 
 of the States, this doctrine has been adopted, and constructive notice is held to 
 be insufficient: Norcoss'w. Widgery, 2 Mass. 509; Bush«. Golden, 17 Conn. 594; 
 Harris ■!;. Arnold, 1 Rhode Island, 125; Frothingham v. Stacker, 11 Missouri, 77; 
 Martin v. Sale, Bail. Eq. 1 ; Fleming v. Burgin, 2 Ired. Eq. 584; Ingram v. Phil- 
 lips, 3 Strobh. R. 369; see Burt 3). Cassety, 12 Alab. 734; McCaskle v. Ama- 
 rine, 12 Alab. 17. Thus, possession of the prior grantee, except, perhaps, 
 where distinctly brought home to the knowledge of the purchaser, is held 
 to be insufficient : Harris v. Arnold ; Frothingham v. Stacker. In Maine and Mas- 
 sachusetts, there are statutory provisions to the same effect: Spofford v. Weston, 
 29 Maine, 140; Butler v. Stevens, 26 Maine, 489 ; Curtis v. Murphy, 3 Metcalf, 
 405; Hennessey v. Andrews, 6 Cush. 170. In Pennsylvania and New York, the 
 
AS BETWEEN THEM AND THIRD PERSONS. 749 
 
 held that the limited search will exclude the presumption of a general 
 search, and the purchaser will not he deemed to have notice of any 
 instrument not registered within the limited period.{s) 
 
 A similar rule prevails with regard to the court rolls of a manor, 
 for a purchaser of a copyhold will be affected with notice of all in- 
 striiments appearing on the court rolls, so far back as a search is 
 necessary for the security of the title.(^) 
 
 Although the deed creating or giving notice of the trust was at- 
 tested by the purchaser as a witness, he will not on that account be 
 fixed with notice of its contents ; for an attesting witness is not bound 
 to read the instrument.(M) 
 
 But it is settled, that whatever is sufficient to put a purchaser upon 
 an inquiry, which would lead to a discovery of the trust, will be good 
 constructive notice.(3;)' And on this ground a purchase from a trus- 
 tee, who is not in actual possession of the estate, could rarely if ever 
 
 (s) Hodgson V. Dean, 2 S. & St. 221 ; Wms. 393 ; Welford v. Beezley, 1 Ves. 
 
 affirmed by Lord Chancellor, July, 1825. 6; Beckett v. Cordley, 1 Bro. C. C. 357; 
 
 (0 Pearce t).Newlyn, 3 Mad. 186; 2 2 Sugd. V. & P. 296, 9th edit. [But see 
 
 Sugd. V. & P. 296, 9th edit. ; but see Boling v. Ewing, 9 Dana, 76.] 
 
 Hansard v. Hardy, 18 Ves. 462, and (a;) Smith ^. Low, 1 Atk. 489; Taylor 
 
 Bugden v. Bignold, 2 N. C. C. 300. v. Baker, 1 Dan. 71; 2 Sugd. V. & P. 
 
 (u) Mocatta v. Murgatroyd, 1 P. 290, 9th edit. . 
 
 decisions are not consistent. In Scott v. Gallagher, 14 S. & R. 333, and Boggs v. 
 Varner, 6 W. & S. 469, the language of the court is in accordance with the doc- 
 trine just staled. But there is no doubt that in the former State, open and noto- 
 rious possession is sufficient notice of an unrecorded deed: Krider v. LafFarty, 1 
 Wharton, 303; Randall v. Silverthorn, 4 Barr, 173. So in New York, Tuttle v. 
 Jackson, 6 Wend. 213, has established, contrary to Dey v. Dunham, 2 J. C. R. 162, 
 and other cases, that constructive notice is enough to postpone a subsequent pur- 
 chaser; and in Grimstone v. Carter, 3 Paige, 421, it was held, in general, that 
 equities and agreements to convey, were not within the recording acts. In Ma- 
 ryland, in the case of Price v. McDonald, 1 Maryl. R. 414, a similar doctrine was 
 held by the Court of Appeals ; though in Ohio Ins. Co. v. Ross, 2 Maryl. Ch. Dec. 
 3, and Gill v. McAltee, Id. 268, the English rule was supported and followed by 
 Chancellor Johnson. That possession is notice, has been also held in WebstertJ. 
 Maddox, 6 Maine, 256 ; Kent v. Plummer, 7 Id. 464 (before the statute referred 
 to above) ; Buck v. Holloway, 2 J. J. Marsh. 100 ; Hopkins v. Garrard, 7 B. Monr. 
 312; Colby i;.Kenniston, 4 N. H. 262; Griswold v. Smith, 10 Vermont, 452; and 
 in Landis v. Brant, 10 How. U. S. 348, where indeed, the point was even consi- 
 dered to be unquestioned. This, however, is a mistake. This subject is treated 
 of with great ability and acuteness in the notes to Le Neve v. Le Neve, ut supra, 
 where the cases will be found collected. 
 
 'Jackson v. Caldwell, 1 Cowen. 622; McGeher v. Gindrat, 20 Alab. 100; 
 Barnes v. McClinton, 3 Pa. R. 69; Westervelt v. Huff, 2 Sandf. Ch. 98; Flagg 
 V. Mann, 2 Sumn. 486; Sigourney v. Munn, 7 Conn. 324; Bingaman v. Hyatt, 1 
 Sm. & M. Ch. 437; Blaisdell v. Stevens, 10 Verm. 179; Laselle v. Barnett, 1 
 Blackf. 150; Doyle v. Teas, 4 Scamm. 202; Tardy v. Morgan, 3 McLean, 358 ; 
 Oliver v. Piatt, 3 How. U. S. 333 ; Hood v. Fahnestock, 1 Barr, 470 ; Knouff v, 
 Thompson, 16 Penn. St. R. 357. 
 
750 OP THE POWERS AND DUTIES OF TRUSTEES 
 
 be supported where the interest purchased is not reversionary ; for 
 knowledge of the possession of the cestui que trust would be notice 
 of an interest in the estate, the nature and extent of which the pur- 
 chaser would be bound to ascertain.^ And it would be extremely 
 difficult to conclude a bona fide purchase, without the fact of a third 
 party's being in possession becoming known. («/) Indeed, it has been 
 laid down by Lord Eldori, that a plea of a purchase for valuable con- 
 sideration without notice, must always contain an averment, that the 
 vendor was in possession,{z) from which it would follow that the trus- 
 tee's being in possession is in every case essential to the validity of 
 the sale by him of a present interest in an estate ; although this rule 
 of course cannot apply where the interest is in reversion. (a) 
 
 So if the purchaser be aware that the title-deeds are in the posses- 
 sion of the cestui que trust, he will be held to have constructive notice 
 of the interest claimed by the possessor of the deeds. (5) But the 
 mere absence of title-deeds is not sufficient of itself to put him upon 
 inquiry.(c) Again, if the purchaser be informed of the existence of 
 any settlement affecting the estate, he will be bound to inquire into 
 and ascertain its provisions ; and if he complete his purchase without 
 making this inquiry, he will be affected with constructive notice of 
 any trust created by the settlement. (c^) However, the knowledge of 
 pr-(o-iiAe draft of a deed being *prepared, will not affect a pur- 
 chaser with notice of the execution of the deed, although it 
 was in fact afterwards executed ; for a purchaser is not bound by the 
 knowledge of a mere intention to execute a deed.(e) And where a 
 
 ({/) Daniels t). Davidson, 17 Ves. 433; Smith, 1 Hare, 63. [1 Phill. 244; see 
 
 Taylor v. Stibbert, 2 Ves. jun. 437 ; Allen Allen v. Knight, 1 1 Jur. 527 ; afi 'g. S. Cl 
 
 V. Anthony, 1 Mar. 282 ; Jones v. Smith, 5 Hare, 272 ; Berry v.his. Co., 2 J. C. R. 
 
 1 Hare, 60 ; Hierne v. Mill, 13 Ves. 120; 603 (a).] 
 
 Powellt). Dillon, 2 Ball. &B. 416. [Bai- (d) Ferrars v. Cherry, 2 Vern. 383; 
 
 ley V. Richardson, 15 Engl. L. & Eq. Dunch v. Kent, 1 Vern. 319; Kelsall v. 
 
 218.] Bennett, 1 Atk. 522 ; Taylor v. Baker, 5 
 
 (z) Walwyn v. Lee, 9 Ves. 32; and Price, 306; Jackson v. Eowe, 2 S. &St. 
 
 see Jackson v. Rowe, 4 Russ. 523; Tre- 472 ; Jones v. Smith, 1 Hare, 55; Hall 
 
 vanian v. Mosse, 1 Vern. 246. v. Smith, 14 Ves. 426 ; Eyre v. Dolphin, 
 
 (o) See Hughes v. Garth, 2 Ed. 168 ; 2 Ball & B. 301. [See Proddy v. Wil- 
 
 Ambl. 42 1 . liams, 3 J. & Lat. 1 ; Price v. McDonald, 
 
 (6) Hierne v. Mill, 13 Ves. 114, 122; 1 Maryl. R. 414.] 
 
 Jones U.Smith, 1 Hare, 61;[1 Phill. 244.] (e) Cothay v. Sydenham, 2 Bro. C. C. 
 
 (c) Plumb V. Fluitt, 2 Anstr. 432; 391. 
 Evans v. Bicknell, 6 Ves. 174 ; Jones v. 
 
 1 See Chesterman v. Gardner, 5 J. C. R. 29 ; Sailor v. Hertzog, 4 Wharton, 259 ; 
 Krider r. Lafferty, 1 Whart. 303; Hardy «. Summers, 10 G.& J. 316; Buck u. Hol- 
 loway, 2 J. J. Marsh, 178; Kent v. Plummer, 7 Greenlf. 464; Flagg v. Mann, 2 
 Sumn. 556 ; Scroggins v. McDougald, 8 Alab. 385 ; and Am. notes to Le Neve v. 
 Le Neve, 2 Lead. Gas. Eq.pt. i. 150. See as to the effect of possession under the 
 Recording Acts, note, ante, p. 511. 
 
AS BETWEEN THEM AND THIRD PERSONS. 751 
 
 purchaser is informed, that a settlement had been made on the mar- 
 riage of the vendor, but upon inquiry, he is told that the settlement 
 did not include the property in question, it has been decided in a 
 recent case, that it is not incumbent on him to have it produced and 
 examined before completing the purchase.(/) 
 
 Where the purchaser has actual or constructive notice of the exis- 
 tence of any instrument, he will also be fixed with notice of all deeds 
 or other instruments referred to or mentioned in that instrument, and 
 will be bound by the trusts created by them.(f/)' It has been decided, 
 however, that the obligation for a purchaser to inquire into such 
 earlier documents will not usually extend beyond the time, which 
 has been fixed as the proper root of a marketable title, viz., the 
 period of sixty years.(A) 
 
 A purchaser cannot protect himself from the consequences of con- 
 structive notice by wilfully and designedly abstaining from making 
 any inquiries, for the very purpose of avoiding notice ; but such con- 
 duct would render him liable as a participator in the fraud of the 
 trustee. («') And even in the absence of proof of a wilful blindness, 
 he might be considered guilty of such crassa negligentia, as in equity 
 amounts to actual fraud. (A) 
 
 It will in general be presumed, that every purchaser has investi- 
 gated his vendor's title before completing his purchase ; and if the 
 title cannot be made out, but through a deed, which gives or leads to 
 notice of a trust, he will be assumed to have had notice of that trust •,{l) 
 unless, indeed, he can show why he had not inquired into the title 
 with a view to his protection. (w) And if the deed, which carries 
 notice of the trust, be found in the possession of the purchaser, that 
 
 (/) Jones V. Smith, 1 Hare, 43. [Aff. Jones v. Smith, 1 Hare, 55; see Surman 
 
 1 Phill. 244 ; see, however, the remarks v. Barlow, 2 Ed. 165 ; Hiem v. Mill, 13 
 
 in Price v. McDonald, 1 Maryl. R. 414.] Ves. 120. 
 
 (g-) Bisco V. Earl of Banbury, 1 Ch. Qc) Hiem v. Mill, 13 Ves. 119 ; Jones 
 
 Ca. 287; Coppiii v. Fernyhough, 2 Bro. v. Smith, 1 Hare, 56. [1 Phil!. 224 ; see 
 
 C. C.29I; Mertinsu.Joliffe,Ambl.311; Doyle u. Teas, 4 Soamm. 202.] 
 
 Davies v. Thomas, 2 Y. & Coll. 234; (/) Moor v. Bennett, 2 Ch. Ca. 246; 
 
 Jones V. Smith, 1 Hare, 55 [1 Phill. Mertins v. JoliSe, Ambl. 311; Jackson 
 
 254]; Neeson K. Clarkson, 2 Hare, 173; v. Rowe, 2 S. & St. 475; Neeson v. 
 
 Pearce v. Newlyn, 3 Mad. 186 ; 2 Sugd. Clarkson, 2 Hare, 173. [Leiby v. Wolf, 
 
 V. & P. 293, 9th edit. 10 Ohio,83 ; Woods -u.Farmere, 7 Watts, 
 
 (A) Prosser v. Watts, 6 Mad. 59. 385 ; Ohver v. Piatt, 3 How. U. S. 333.] 
 
 (i) Kennedy v. Green, 3 M. & K. 699 ; (m) See Neeson v. Clarkson, 2 Hare, 
 
 Whitbread v. Jordan, 1 Y. & Coll. 303; 173. 
 
 ' SeeWorraelyu.Wormely,l Brock. 330; 8 Wheat. 42"; Hagthorp ■«. Hook, 1 G. 
 & J. 301; Johnston v. Gwathmey, 4Litt. 318; Scott v. MoCuUough, 13 Missouri, 
 14; Leiby tJ. Wolf, 10 Ohio, 83; Honore v. Blakewell, 6 B. Monr. 73; Oliver v. 
 Piatt, 3 How. U. S. 333 ; Woods v. Farraere, 7 Watts, 385; Christmass v. Mitchell, 
 3 Ired. Eq. 535; Nelson t;. Allen, 1 Yerg. 360; MoAleer v. McMullin, 2 Barr, 32. 
 
752 OF THE POWERS AND DUTIES OF^ TRUSTEES 
 
 will prima facie be suflScient to fix him with notice.(w) And so where 
 a trust is noticed, by recital or otherwise, on the face of the very con- 
 veyance under which the purchaser holds, it would be yet more 
 difficult to maintain that he purchased without notice.(o) 
 
 Notice, either actual or constructive, will be equally binding, 
 whether it be given to the purchaser himself, or to a person acting as 
 r*514n ^^^ *g^'i'')(p) *°'' solicitor, (g-) or counsel.(r) And the same 
 rule prevails, although the agent, attorney, or counsel, be him- 
 self the vendor,(s) or be employed for both vendor or purchaser.(i) 
 And so notice to the town agent of the purchaser's attorney has been 
 held to be notice to the purchaser.(M) But it has been held that the 
 agent must be confidentially employed by the purchaser, or the latter 
 will not be affected with notice to the former.(a;)^ 
 
 And the notice to the agent, or attorney, or counsel, must be in 
 the same transaction, because he may very easily have forgotten it;(y) 
 although there may be special circumstances which would render the 
 knowledge acquired by an agent, &c., in one transaction, sufficient 
 notice to the employer or client in another ; as where the prior trans- 
 
 (n) Whitfield v. Fausset, 1 Ves. 387 ; (r) Preston v. Tubbin, 1 Vern. 287 ; 
 
 Merlins v. Joliffe, Ambl. 313. Le Neve v. Le Neve, 3 Atk. 646. 
 
 (o) Maples v. Ackland, 3 Russ. 273 ; (s) Sheldon v. Cox, Ambl. 624; Dry- 
 Neeson v. Clarkson, 2 Hare, 172 ; New- den v. Frost. 3 M. & Cr. 620. [See Ma- 
 stead V. Searles, 1 Atk. 267; Kelsall v. joribanks v. Hoveden, 1 Drury, 11.] 
 Bennett, 1 Atk. 522. (<) Le Neve v. Le Neve, 3 Atk. 648 ; 
 
 (p) Alney v. Kendal, 1 Ch. Ca. 38; Toulmin v. Sleere, 3 Mer. 210; Ken- 
 
 Brotherton v. Hutt, 2 Vern. 574; Jen- nedy v. Green, 3 M. & K. 699 ; Dryden 
 
 nings V. Moore, 2 Vern. 609; Blenkarn v. Frost, 3 M. & C. 670 ; Fuller v. Benett, 
 
 V. Jennings, 2 Bro. P. C. 278; Maddox 2 Hare, 394; Winter v. Lord Anson, 3 
 
 V. Maddox, 1 Ves. 61 ; Ashley v. Baillie, Russ. 493. 
 
 2 Ves. 370; Downes v. Powers, 2 Ball (u) Norris v. Le Neve, 3 Atk. 26. 
 
 & B. 491. [Knouff 1). Thompson, 16 (z) Chandos ■«. Brownlow, 2 Eidg. P. 
 
 Penn. St. R. 359; see Murray v. Ballou. C. 394. 
 
 1 J. C. R. 54; White v. Carpenter, 2 (y) Fitzgerald v. Fauconberg, Fitz. 
 
 Paige, 217 ; Boggs v. Varner, 6 W. & S. 297 ; Warwick v. Warwick, 2 Atk. 294; 
 
 469.] Worsley v. Earl of Scarborough, Id. 
 
 (g) Newstead v. Searles, 1 Atk. 267; 392; Lowther v. Carlton, 2 Atk. 242; 
 
 Le Neve v. Le Neve, 1 Ves. 64; 3 Atk. Ashley v. Baillie, 2 Ves. 370; Hiern v. 
 
 646; Tunstall v. Trappes, 3 Sim. 301; Mill, 13 Ves. 120; Mountford v. Scott, 
 
 Mountford v. Scott, 3 Mad. 34 ; T. & R. 3 Mad. 34. [Bracken v. Miller, 4 Watts 
 
 280. & S. 102 ; Hood v. Fahnestock, 8 Watts, 
 
 489 ; Henry v. Morgan, 2 Binn. 497.] 
 
 ' See as to notice through agent, ante, 165, and note. In Howard Ins. Co. v. 
 Haisey, 4 Sandf. S. C. 571, it was said that this rule is based on the duty of the 
 agent to communicate to his principal facts affecting the latter's interests; and 
 therefore it was there held, that where an attorney on a suit to foreclose, had 
 made searches, by which he obtained notice of a deed, but the proceeding, and 
 thus his agency, was terminated suddenly, before the inquiry was completed, 
 this was not notice to his client. 
 
AS BETWEEN THEM AND THIRD PERSONS. 
 
 753 
 
 action was followed so close by the other, as to render it impossible 
 to give a man credit for having forgotten it.{z) 
 
 Notice before actual payment of all the purchase-money (although 
 it be secured,(a) and the conveyance actually executed),(S) or before 
 the execution of the conveyance (notwithstanding that the money 
 be paid),(c) is equivalent to notice before the contract.^ 
 
 The plea of a purchase for valuable consideration without notice, 
 when pleaded in bar to a suit, should state the conveyance ;{d) and 
 it must contain an averment, that the vendor was seised, or pre- 
 tended to be seised, at the time of the conveyance,(e) and, also, that 
 he was then in possession(/) (unless the estate be reversionary, in 
 which case the state of the title must be shown by the plea).(5r) 
 There must also be an averment, that the consideration-money was 
 iona fide and truly paid.(A) However, a valuable consideration, 
 such as that of marriage, will be sufficient to support a plea of pur- 
 chase without notice, if it be properly stated. (i) Moreover, the plea 
 must deny notice of the plaintiff's title or claim before the execution 
 of the conveyance and payment of the consideration ; *for till 
 then the transaction is not complete ;{h) and this denial must '- -• 
 be made, whether the notice is charged in the bill or not.(Z) And if 
 
 Ed. 168; 
 
 (») Mountford v. Scott, T. & R. 280 
 Hargreaves v. Rothwell, 1 Keen, 154 
 see Fuller v. Benett, 2 Hare, 405, 6 
 Perkins v. Bradley, 1 Hare, 230. [Ma- 
 joribanks t>. Hoveden, 1 Drury, 11.] 
 
 (a) Moore v. Mayhew, 1 Ch. Ca. 34 ; 
 Tourville v. Naish, 3 P. Wms. 307; 
 Story V. Lord Windsor, 2 Atk. 630; 
 Hardingham v. Nicholls, 3 Atk. 304. 
 
 (6) Jones v. Stanley, 2 Eq. Ca. Abr. 
 685. 
 
 (c) Wigg V. Wigg, 1 Atk. 384; 2 
 Sugd. V. & P. 274, 9th edit. 
 
 (d) Aston V. Aston, 3 Atk. 302 ; Har- 
 rison V. Southcote, 2 Ves. 396 ; 2 Sugd. 
 V. & P. 304, 9th edit. [Snelgrove v. 
 Snelgrove, 4 Desaus. 274, where the 
 cases are cited.] 
 
 (e) Story v. Lord Windsor, 2 Atk. 
 630; Head v. Egerton, 3 P. Wms. 279; 
 Walwyn v. Lee, 9 Ves. 32 ; Jackson v. 
 Rovpe, 4 Russ. 514. [Snelgrove v. Snel- 
 grove, ut supra; Tompkins v. Wheeler, 
 4 Sandf, Ch. 97.] 
 
 (/) Walwyn v. Lee, 9 Ves. 32 ; Jack- 
 son V. Rowe, 4 Russ. 523; Trevanianu. 
 Mosse, 1 Vern. 246. [Snelgrove v. Snel- 
 grove, ut supra.] 
 
 (g-) Hughes V. Garth, 2 
 Ambl. 421. 
 
 {h) Moore v. Mayhew, 1 Ch. Ca. 34 ; 
 Maitland v. Wilson, 3 Atk. 814; Mo- 
 lony V. Kerwan, 2 Dr. & W. 3 1 ; see 2 
 Atk. 241. [Highe v. Batte, 10 Yerg. 
 535; Bonnell v. Read, 21 Conn. 592; 
 see ante, 165, note.] 
 
 (i) Jackson v. Rowe, 2 S. & St. 475. 
 
 {k) Lady Bodmin v. Vandebendy, 1 
 Vern. 179; Moore •;;. Mayhew, 1 Ch. 
 Ca. 34; Story v. Lord Windsor, 2 Atk. 
 630 ; Att.-Gen. v. Gower, 2 Eq. Ca. Abr. 
 685; 2 Sugd. V.& P. 306, 9th edit. [See 
 ante, 165, note.] 
 
 {I) Aston V. Curzon, Weston v. 
 Berkely, 3 P. Wms. 244, n. ; Brace v. 
 Duke of Marlborough, 2 P. Wms. 491, 
 6th Resolution. [Snelgrove v. Snel- 
 grove, 4 Desaus. 274; Scudder v. Van 
 Amburgh, 4 Edw. Ch. 19; Bonnell v. 
 Read, 21 Conn. .')92; Moore v. Clay, 7 
 Alab. 742 ; Pillow v. Shannon, 3 Yerg. 
 508; Gallion v. McCaslin, 1 Blackf. 91; 
 Caldwell v. Carrington, 9 Peters, 86; 
 Denning v. Smith, 3 J. C. R. 345.] 
 
 ' See ante, 165, and notes. 
 48 
 
754 OE THE POWERS AND DUTIES OF TRUSTEES 
 
 there are particular charges of notice, they must be specially 
 denied ;(m) although, if there are no such particular charges, the 
 denial of notice may be general.(w) However, the denial must be 
 positive, (o) and it must not be confined to personal notice, for that 
 would raise an inference that notice had been given to the defen- 
 dant's agent, which is a fact equally material.(p) 
 
 If the notice be proved by only one witness, and it is positively 
 and expressly denied by the answer, there will be no decree against 
 the defendant, (§') unless the evidence of the witness be corroborated 
 by other circumstances. (r) But the denial must be positive, and an 
 answer as to lelief only will not be sufficient, in contradiction to 
 what has been positively sworn, (s) If the evidence of notice be not 
 sufficiently clear for the court to make a decree, it will be sent to 
 law to be tried, (^y 
 
 The counsel, attorney, or agent of the purchaser, cannot be ad- 
 mitted to prove the notice against him, upon the general principle of 
 law, that parties in that confidential situation ought not to be allowed 
 to disclose the secrets of their clients, where the knowledge of them 
 has been acquired in their professional capacity only, and not inde- 
 pendently of that character ;(m) and this is the privilege of the client, 
 which the attorney, &c., will not be suffered to violate, by making a 
 voluntary deposition as to the fact to be proved ;(»;) although Lord 
 Hardwicke, and also Sir J. Strange, appear to have maintained a 
 contrary doctrine on this last point. («/) 
 
 We have already seen that possession of a deed is prima facie evi- 
 
 (m) Meder v. Birt, Gilb. Eq. Rep. Massey, 1 Ball & B. 234; Cooke v. 
 
 185; Radford v. Wilson, 3 Atk. 815; Clayworth, 18 Ves. 12. 
 
 Jerrard I). Saunders, 2 Ves. jun. 187; 4 (r) Walton v) Hobbs, 2 Atk. 19; 
 
 Bro. C. C. 322; 6 Dow. 230. [Snelgrove Anon. 3 Atk. 27b; Only v. Walker, 3 
 
 V. Snelgrove, ut supra.] Atk. 407; Vexab^^j). Mathers, 1 Bro. 
 
 (n) Pennington v. Beechey, 2 S. & C. C. 52; East Irfdia Company u.M'Do- 
 
 St. 282 ; Thring v. Edgar, Id. 274. nald, 9 Ves. 275; Biddulph v. St. John, 
 
 (o) Cason v. Round, Preo. Ch. 226. 2 Sch. & Lef. 521. [Mense v. McLean, 
 
 [Gallatian v. Erwin, 1 Cowen, 361; 13 Miss. 298.] 
 
 Frost V. Beekman, 1 J. C. R. 288; (s) Arnott w. Biscoe, 1 Ves. 97 ; Fil- 
 
 Walker v. Gilbert, 1 Freem. Ch. 85; ling v. Armitage, 12 Ves. 78. 
 
 Jenkins v.Bodley, 1 Sm. & M. Ch. 338.] {t) 1 Ves. 95; 2 Sugd. V. & P. 301, 
 
 (p) Le Neve v. Le Neve, 3 Atk. 650 ; 9th edit. 
 
 1 Ves. 66. (u) 2 Sugd. V. & P. ^98, 9th edit. 
 
 (g) Alara v. Jourdon, 1 Vern. 161; (x) 2 Sugd. V. & P. 299'; Sandfordv. 
 
 Kingdorae v. Boakes, Prec. Ch. 19 ; Le Remington, 2 Ves. jun.ri89. 
 
 Neve V. Le Neve, 3 Atk. 650; 1 Ves. (y) Maddox v. Ma,ddox, 1 Ves. 62; 
 
 66 ; Howaith v. Deane, 1 Ed. 351 ; Mor- Bishop of Winton v. Fournier, 2 Ves. 
 
 limeriJ. Orchard, 2 Ves. jun. 243; Evans 445. 
 V. Bicknell, 6 Ves. 174 ; Dawson v. 
 
 ' See, on the questions of pleading arising from'ifcis defence of purchaser 
 without notice, notes to Basset v. Nosworthy, ut supra. 
 
AS BETWEEN THEM AND THIED PERSONS. 755 
 
 dence of notice of its contents ;(z) and it lies upon the purchaser to 
 rebut that presumptive evidence, by showing that it came into his 
 possession aTter the purchase.(a) 
 
 The evidence must distinctly show, that notice wfts actually re- 
 ceived ; for the court will not act upon what amounts to mere sus- 
 picion :(b) and a purchaser is not obliged to enter into the interpre- 
 tation of doubtful facts *or expressions.(c) But it is obviously -, 
 very difficult to lay down any general rule as to what will '- 
 amount to sufficient proof of actual or constructive notice. The 
 gradation between mere rumor or suspicion and positive information, 
 is so indefinite, 'that each case must necessarily depend on its own 
 peculiar circumstances. (c?) 
 
 It has been already observed, that notice by parol declarations is 
 sufficient for all purposes.(e) 
 
 A purchaser for valuable consideration will not be affected by 
 notice of a prior voluntary conveyance ; and, therefore, where the 
 owner of an estate has voluntarily constituted himself a trustee for 
 other parties, he may, notwithstanding, make a good subsequent con- 
 veyance of it to a purchaser who has been made acquainted with the 
 voluntary settlement. (/)' However, a purchaser who has notice of 
 a voluntary settlement, could seldom be advised to complete without 
 inquiring into all the circumstances connected with it ; for if it should 
 turn out, that the settlement, though apparently voluntary, was 
 founded on any valuable consideration, the trusts would undoubtedly 
 be enforced against him, although the settlement itself contained no 
 actual recital or notice of that fact.(^) And parol evidence is 
 admissible to prove the consideration in support of the settle- 
 ment. (A) 
 
 It has been already seen, that a purchaser who takes, by a volun- 
 tary conveyance from a trustee, will be bound by the trust, although 
 
 (2) Whitfield v. Fausset, 1 Ves. 392; (d) Story, Eq.Jur. ^ 400. 
 
 Mertins w. JoIifFe, Arabl. 313. (e) Weymouth v. Boyer, 1 Ves. jun. 
 
 (a) Earl of Pomfret v. Lord Windsor, 425 ; ante, 510. 
 
 2 Ves. 486. (/) Taylor v. StUe, 2 Sugd. V. & P. 
 
 (6) Hineu. Dodd, 2 Atk. 276; How- 159, 9th edit.; Evelyn v. Memplar, 2 
 
 arth V. Deane, 1 Ed. 351. [See Fort v. Bro. C. C. 148 ; Buckle v. Mitchell, 18 
 
 Burch, 6 Barb. S. C. 60.] Ves. 112; Pulvertoft v. Pulvertoft, lb. 
 
 (c) Kenney v. Brown, 3 Ridg. P. C. 84; Powell v. Pleydell, 1 Bro. P. C. 124. 
 
 512 ; Warwick v. Warwick, 3 Atk. 291 ; [See ante, p. 90, and note.] 
 
 Senhouse v. Earle, Ambl. 285; 2 Ves. (g) Ferrars^. Cherry, 2 Vern. 384. 
 
 450; Att.-Gen. v. Backhouse, 17 Ves. (h) ChapmaniJ.Einery, Coop. 278; 2 
 
 293. Sugd.V.&P.170, 9lhedit. 
 
 ' But see as to many of the United States, where a different rule exists, notes 
 to Sexton v. Wheaton, 1 Am. Lead. Cas. 62, where the authorities are collected. 
 
756 OF THE POWERS AND DUTIES OP TRUSTEES 
 
 he may have had no notice.(i) And this equity would, doubtless, be 
 enforced to the same extent where the consideration is merely nomi- 
 nal, or collusive, or so inadequate as to amount to evidence of some 
 fraudulent dealing.(A) But, if the consideration be valuable, the 
 court will not enter into the question of inadequacy, unless the dis- 
 proportion be so gross as in itself to suggest fraud. (Z) If the con- 
 veyance by the trustee be not only voluntary, but also with notice, 
 the party taking under it will, a fortiori, be bound to execute the 
 trust, (m) 
 
 Where a purchaser, with notice from a trustee, conveys for valua- 
 ble consideration to another person, who has no notice of the trust, 
 the estate will not be affected with the trust in the hands of the 
 second purchaser, (m) However, in such a case, the first purchaser 
 will not be discharged from his liability, but will be compelled to ac- 
 count with the cestui que trust for the purchase-money which he has 
 received.(o) 
 
 Where an estate has once been purchased for valuable conside- 
 ration, without notice of any trust, a subsequent purchaser will hold 
 discharged from the trust, though he purchased with notice ; for he 
 r*'i17n ^^■'^ have the benefit *of the want of notice by the interme- 
 diate vendor. The reason is, to prevent the stagnation of 
 property, and the injury which might otherwise be occasioned to an 
 innocent purchaser. (p) But this rule will not be applied where the 
 property is re-purchased by the original trustee, or by a previous 
 purchaser with notice ; for the consciences of such persons would 
 remain affected with the original trust, which would re-attach on the 
 property whenever and by whatever title it should return into their 
 possession.(5')^ 
 
 (i) Pye V. George, 1 P. Wms. 128 ; (m) Mansell v. Mansell, 2 P. Wms. 
 
 Mansell v. Mansell, 2 P. Wms. 681 ; 1 681. 
 
 1 Cruis. Dig., Tit. 12, Ch. 4, s. 16 ; ante, (n) Ferrars v. Cherry, 2 Vern. 383; 
 
 Pt. I., Div. II., Ch. II., Sect. 2; p. 172. Merlins v. Joliffe, Ambl. 313. 
 
 Qc) Bullock V. Sadlier, Ambl. 776. (o) Ferrars v. Cherry, 2 Vein. 383. 
 [See Jackson v. Summerville, 13 Penn. {p) Harrison v. Forth, Preo. Ch. 51; 
 
 St. R. 37 1 ; Hanly v. Sprague, 20 Maine, Merlins v. JolifFe, Ambl. 313; M'Queen 
 
 431.] V. Farquhar, 11 Ves. 788; Lowther!). 
 
 (/) Bullock V. Sadlier, Ambl. 763; see Carlton, 2 Alk. 242 ; Brandlyn v. Ord, 1 
 
 Gwynne v. Heaton, 1 Bro. C. C. 8; Gib- Atk. 571. [Ante, 165, note.] 
 son V. Heyes, 6 Ves. 273. (g) Kennedy v. Daly, 1 Sch. & Lef. 
 
 379. 
 
 ' A trustee who re-acquires the trust property conveyed in breach of trusts, 
 takes, in general, subject to the old trusts. Armstrong v. Campbell, 3 Yerg. 201. 
 But the cestui que trust, in such case, has the right either to insist upon this, or to 
 claim the original purchase-money, or, whatever was substituted in its place ; or to 
 hold the trustees personally liable for the breach of trust. Oliver v. Piatt, 3 How. 
 U. S. 401. 
 
AS BETWEEN XHBM AND THIRD PERSONS. 757 
 
 A purchase for valuable consideration, without notice, will not be 
 a complete defence in a court of equity, unless the purchaser has 
 clothed himself with the legal estate.(r) For it has been at length 
 settled (although not until after much fluctuation of opinion), that a 
 plea of such a purchase is no defence in equity to a claim under a 
 legal title. (s)^ 
 
 But, although the purchaser has not secured the perfect legal title, 
 the court will not compel him to make any discovery which may 
 hazard his possession, even on the suit of a person who claims by an 
 alleged legal title ; for the defendant has, in conscience, an equal 
 right with the plaintiff.(<)(l) And, as a general rule, a purchaser, 
 for valuable consideration without notice, is regarded with favor in a 
 court of equity, which will not take the least step against him.(M) 
 
 A mortgagee,(a;) and for some purposes a lessee,(?/) will be con- 
 sidered a purchaser for valuable consideration. For, although a 
 lessee will be held to have notice of his lessor's title, so as to know 
 that he was only a trustee ; yet, if the lease were within the scope of 
 
 (r) See Branlynr. Orel, 1 Atk. 571. PI. ^ 604 (a), 805.] See Payne u. Comp- 
 
 (s) William v. Lamb, 3 Bro. C. C.264; ton, 2 Y. & C. 457, 461. 
 
 Collins w. Archer, IR.&M. 284. [Jen- (<) Gait u. Obaldeston, 1 Russ. 154; 
 
 kins V. Bodley, 1 Sm. & M. Ch. 338; overruling S. C, 5 Mad. 428; Jerrardu. 
 
 Blake v. Heyward, 1 Bail. Eq. 208; Saunders, 2 Ves. jun. 458; see Wilkes 
 
 Larrowe ■«. Beam, 10 Ohio, 498.] Vide v. Boddington, 2 Vern. 600. 
 
 contra, Burlass v. Cooke, 2 Freem. 84 ; (u) Jerrard v. Saunders, 2 Ves. jun. 
 
 Parker v. Blythraore, 2 Eq. Ca. Abr. 79 ; 458. 
 
 Jerrard v. Saunders, 2 Ves. jun. 454. {x) Brotherton v. Hutt, 2 Vern. 574. 
 
 [Walwyn v. Lee, 9 Ves. jun. 24 ; Joyce [See notes to Bassett v. Nosworthy, ubi 
 
 V. De Moleyns, 2 J. & Lat. 374; Elagg sup.] 
 
 V. Mann, 2 Sumner, 486; Att.-Gen. v. {y) Att.-Gen. v. Backhouse, 17 Ves. 
 
 Wilkins, 21 LawT. 260; see 2 Lead. Cas. 293. 
 
 Eq. p. i. 84, 90 (1 Am. ed.) ; Story's Eq. 
 
 (1) However, if a defendant put in his answer raising the defence of purchase 
 for valuable consideration, without notice, instead of protecting himself by plea, 
 it is the settled practice of the court, that he may be compelled to answer all the 
 allegations in the hiWfuUy. Bovey v. Leighton, 2 S. & St. 234; Portarlington v. 
 Soulby, 7 Sim. 28. [Salmon v. Clagett, 3 Bland. 125 ; but see Hagthorp v. Hook, 
 1 G. & J. 270 ; and see notes to 2 Lead. Cas. Eq., pt. i. 1 18 ; and see now Rules in 
 Equity, Sup. Ct. U. S., No. 39; and of Pennsylvania, No. 37.] 
 
 ' The prevailing doctrine in the United States is, that the purchaser of an 
 equitable title takes it subject to all the equities to which it is charged. Winborn 
 V. Gorrell, 3 Ired. Eq. 117; Polk v. Gallant, 2 Dev. & Batt. Eq. 395 ; Shirras v. 
 Caig, 7 Cranch, 48; Hallett v. Collins, 10 How. U. S. 185; Vattier v. Hinde, 7 
 Peters, S. C. 252; Boone v. Chilles, 10 Peters, 177 ; Chew v. Barnett, 12 S. & R. 
 389; Kramer v. Arthurs, 7 Barr, 165; Sergeant v. Ingersoll, Id. 347; S. C, 15 
 Penn. St. R. 343, where taking the legal title at the same time, though under 
 circumstances of suspicion, was held not to protect. But see Flagg v. Mann, 2 
 Sumn. 486. 
 
768 OP THE REMEDIES' FOR BREACH OF TRUST. 
 
 the trustee's powers, the lessee will not be supposed to have known 
 that it was actually a breach of trust, unless it be proved that he was 
 aware of that fact.(2) We have already seen, that marriage is a suf- 
 ficient consideration to support a purchase for valuable consideration 
 within the principles that have just been discussed.(a) 
 
 [*518] *DIYISIO]Sr II. 
 
 OF THE LIABILITIES AND PRIVILEGES OF TRUSTEES. 
 
 CHAPTER I. 
 
 OF A BEEACH OF TEUST, AND. ITS CONSEQUENCES. 
 
 The nature of a breach of trust is sufficiently obvious from what 
 has gone before in the preceding pages, nor is it necessary to add 
 anything here on that point. But we will now proceed to consider — 
 1st. The nature of the remedies for a breach of trust; and 2d. 
 What will amount to a discharge of a breach of trust. 
 
 And 1st. Of the remedies for a breach of trust. 
 
 A suit in equity is the usual and most effectual remedy for a 
 breach of trust.' Indeed unless some legal debt has been created 
 between the parties, or some engagement, the non-performance of 
 which may be the subject of damages at law, a court of equity is the 
 only tribunal to which the cestui que trust can have recourse for 
 redress.(l) And in any case the jurisdiction and machinery of those 
 
 (z) 17 Ve3. 293. (a) Jackson v. Rowe, 2 S. & St. 475. 
 
 (1) An action at law for money had and received will not lie against a trus- 
 tee, while the trust is still open, although where a final account has been stated be- 
 tween the parties, and the trust is closed, it seems, that such an action may be 
 maintained. Case v. Roberts, Holt, N. P. C. 501 ; Edwards «. Bates, C. P., June, 
 1844; ISLawJourn.N. S. 156, [7 M. & G. 590 ; see Dias ii. Brunell's Ex., 24 Wend. 
 9 ; McCreai;. Purmont, 16 Wend. 460; New York Ins. Co. v. Roulet, 24 Wend. 
 
 • See ante, 42, note. A mere breach of confidence is not enough to entitle the 
 party injured to relief in equity; Ashley v. Denton, 1 Litt. 86. Where the trust, 
 also, is executed, so that it is cognizable at law, and nothing more remains to be 
 done by the trustee, equity will leave the parlies to their remedies at law; Baker 
 V. Biddle, Baldw. C. C. 422. But a complete execution must be shown ; Jordan 
 V. Jordan, 2 Car. L. Rep. 409. 
 
OF THE REMEDIES FOR BREACH OF TRUST. 759 
 
 courts is so much better adapted to meet the exigencies of every 
 case by enforcing the restriction of the trust property, and compel- 
 ling an account against the guilty parties, that any other remedy is 
 rarely resorted to. 
 
 A breach of trust in general creates only a simple contract debt, 
 for which (previously to the statute 3 & 4 "Will. IV. c. 104) the trus- 
 tee's personal estate only was liable, and the cestui que trust had in 
 general no remedy against the real estate. (a) The same rule also 
 prevailed at law in those cases where the breach of trust created a 
 legal debt :(6) and it was immaterial that the trust was created by a 
 deed, executed by the trustee, and that the trust deed contained a pro- 
 vision, that the trustees should be liable for the moneys actually re- 
 ceived by them.(e) However, the assets of the trustee would be 
 marshalled in equity in favor of the claim of *the cestui que r;^r-|q-, 
 trust.[d) And there are authorities to show, that if the trus- '- -■ 
 tees bound themselves by a covenant or engagement under seal to 
 apply the trust fund according to the trusts declared, any applica- 
 tion of the fund in breach of that engagement would create a spe- 
 cialty debt against them.(e) However, since the late act,(/) which 
 makes the real estate of debtors in all cases assets for the payment 
 of simple contract debts, the distinction in question has become of 
 little practical importance.^ 
 
 (a) Kirk v. Webb, Preo. 84; Heron (c) Ibid. [lb.] 
 
 V. Heron, lb. 163; Vernon v. Vawdry, {d) Coxv. Bateman, 2 Ves. 19. 
 
 2 Allc. 11 ; Cox V. Bateman, 2 Ves. 19; (e) Bardett v. Hodgson, 1 T. R. 44; 
 
 Perry D. Phillipps, 4 Ves. 108; Lyse v. Gifford w.Manley, Com. Dig. Chancery, 
 
 Kingdom, 1 Coll. 184. 188. [Adey ■«. 4W. 25; Forrest. 109. [Adey v. Ar- 
 
 Amold, 15 Eng. L. & Eq. 270; Ben- nold, 15 Eng. L. & Eq. 270.] 
 
 bury V. Benbury, 2 Dev. & Batt. Eq. (/) 3 & 4 Will. IV. c. 104. [See 
 
 235. J Cummins v. Cummins, 3 J. & Lat. 90.] 
 
 (6) Bartlett v. Hodgson, 1 T. R. 42. 
 [See Adey v. Arnold, ut supr.] 
 
 505; Hull V. Harris, 3 Ired. Eq. 389 ; Brown v. Wright, 4 Yerg. 57; Blue v. Pat- 
 terson, 1 Dev. & Batt. Eq. 457; Beach v. Dorwin, 12 Verm. 139. In Pennsyl- 
 vania, however, equitable relief is given in such cases, by the action for money 
 had and received, which is moulded to suit the exigencies of the case ; Martzell 
 V. StaufTer, 3 Pa. R. 398 ; Aycinena v. Pevies, 6 W. & S. 398 ; so in Massachu- 
 setts; Newhall v. Wheeler, 7 Mass. 198. And, generally, if there be an express 
 promise by the trustee, the action will lie. Weston v. Barker, 12 Johns. R. 276; 
 Dias V. Brunell's Ex., 24 Wend. 9.] 
 
 ■ In Woodu.Hardisty, 10 Jur. 489, 2 Coll. C. C. 542, in a deed to which A. and 
 B. were parties, there was contained a declaration that A., his executors, admi- 
 nistrators, and assigns, should stand possessed of certain specified funds in trust 
 for B., her executors, &c., and Sir Knight Bruce, yielding " somewhat reluctantly," 
 to authorities cited for the plaintiff, held, subject to farther argument, that a 
 breach of trust by A. created a specialty debt in favor of B.'s representatives. 
 The case appears never to have been again mentioned before the Vice-Chancel- 
 lor. In the recent case of Adey v. Arnold, 15 Eng. L. & Eq. 268, the autho- 
 
760 OF THE REMEDIES JOB BREACH OF TRUST. 
 
 A suit in respect of a breach of trust may be instituted by all or 
 any one or more of the cestui que trusts as plaintiffs ; but if any of 
 the parties beneficially interested do not join as plaintiffs, they must 
 be brought before the court as defendants ; or (as such a suit is in 
 truth a creditor's suit) it must at all events be expressed to be 
 brought on behalf of the plaintiffs, and all other persons interested 
 in the debt created by the breach of trust.(^) 
 
 However, if the share of one of several cestui que trusts in a trust 
 fund has been ascertained and set apart — as where it is a moiety or 
 other aliquot part of the fund — a suit for a breach of trust may be 
 maintained against the trustee by the person entitled to that share 
 without joining the other cestui que trusts as parties.(A) Indeed 
 
 ig) Alexander v. Mullins, 2 R. & M. Perry v. Knott, 5Beav. 293, 297; [Piatt 
 
 568 ; Munch u. Cockerell, 8 Sim. 219, v. Oliver, 2 McLean, 307. But this, 
 
 231. [Piatt V. Oliver, 2 McLean, 30; it seems, applies only where the fund 
 
 McKonley t). Irvine, J3 Alab. 682 ; Cas- is in existence, and forthcoming ; Lena- 
 
 siday v. McDaniel, 8 B. Monr. 519; ghan v. Smith, 2 Phill. 302. See now, 
 
 Story, Eq. Plead. Ch. IV. ; see ante, p. in England, under the 15 & 16 Vict. c. 
 
 338, note; and PhiUipson v. Gutty, 86, s. 42; McLeod v. Annesley, 22 L. 
 
 6 Hare, 26.] J. Ch. 657 ; 17 Jur. 612.] See Mont- 
 
 (h) Smith V. Snow, 3 Mad. 10 ; gomerie v. Lord Bath, 3 Ves. 560. 
 Hutchinson v. Townsend, 2 Keen, 675 ; 
 
 rities were brought in review before Lord St. Leonards. Where by deed of 
 endorsement under seal, appointing new trustees, and executed by them, a 
 trust fund was assigned to the new trustees, " to hold unto them, their executors, 
 (fcc, as their own money, property, and effects, but nevertheless upon the trusts 
 and for the ends, and purposes, declared by the within indenture," but there was 
 no declaration of trust by the new trustees. It was held that a breach of trust did 
 not constitute a specialty debt. The Chancellor stated the result of the cases as 
 follows : '•' There is no better established general proposition, than that a breach 
 of trust does not constitute a specialty debt, Vernon v. Vawdry, 2 Atk. 119 ; Lex 
 ■V. Bateman, 2 Ves. sen. 19. It is equally clear from the authorities, that where 
 there is a deed executed by the trustees, containing a declaration that they vrill 
 apply the trust fund in a particular way, that will amount to a covenant, and 
 create a specialty debt; as Lord Eldon, said in Lord Montfort v. Cadogan, 19 
 Ves. 638. In all the cases where a breach of trust has been held to constitute a 
 specialty debt, it has been where there was a debt due from a trustee in respect 
 of a sum of money which he had agreed, under seal, to apply in a particular 
 manner, but which he had misapplied. In those oases it constituted a specialty 
 debt, because he had declared under seal, that he would not apply the fund, as 
 he ultimately did apply it." See Benbury v. Benbury, 2 Dev. & Batt. Eq. 238. 
 
 In the United States, as in England, real estate is now assets for the payment 
 of all debts, whether by specialty or simple contract ; see ante, p. 344 ; and in Penn- 
 sylvania, and in many of the States, the distinction between the two classes of 
 debts in the administration of decedent's estates, is abolished; 2 Kent's Comm. 419. 
 So far, therefore, as these changes bear upon the question of the quality of debt, 
 created by breach of trust, it has, as is slated in the text, " become of little prac- 
 tical importance." But where the general distinction in the administration of 
 personal estate is retained, the rules above stated still apply ; Cummins v. Cum- 
 mins, 3 J. & Lat. 90; 2 Wms. Executors, 170; Benbury v. Benbury, 2 Dev. & 
 Batt. Eq. 238. See Richardson v. Jenkins, 17 Jur. 446. 
 
OF THE REMEDIES FOR BRBACn OF TRUST. 761 
 
 it has been held, that in such a case it will be improper to join the 
 other cestui que 'trusts, and if made parties they may demur to the 
 bill.(i) 
 
 So where one of several co-trustees has committed a breach of 
 trust, a suit may be brought by the other trustees against the guilty 
 trustee without joining the cestui que trusts as parties. (i) And if 
 one or more of the cestui que trusts have concurred in, and benefit- 
 ed by, the commission of the breach of trust, a bill may be filed 
 against them by the innocent trustee to compel them to reinstate the 
 fund, and also to account for the benefit received.(Z) And the re- 
 presentatives of a trustee after his death have the same right to the 
 protection and assistance of the court in such cases as the trustee 
 himself.(«i) 
 
 But the cestui que trusts cannot be properly joined as co-plaintiifs 
 in a suit by a trustee or his representatives against a co-trustee, who 
 has been guilty of a breach of trust; for the assets of the plaintiff 
 trustee may be eventually liable to make good the breach of trust, 
 so that the interest of the plaintiff trustee would conflict with that of 
 the cestui que trusts ; and if this objection were taken at the hear- 
 ing, the bill so framed would be dismissed with costs. (w) However, 
 in such a case, where the equity of the cestui que trust against the 
 trustee, his co-plaintiff, appears from the answer of the defendant 
 trustee, the plaintiff on application by motion before the hearing, 
 may obtain leave to amend the record, by striking out the name of 
 the trustee as a plaintiff and making him a defendant, on giving 
 security for the costs of the application.(o) 
 
 *A11 parties implicated in a breach of trust are equally 
 liable, without any priority between them;(p) and this lia-L " -' ' 
 bility is joint and several; consequently they will all be properly 
 joined as defendants in a suit respecting the breach of trust. Hence, 
 where the breach of trust consists of an improper assignment or con- 
 veyance by the trustee to a third person, who has notice of the trust, 
 the assignee and the trustee will both be equally responsible to the 
 cestui que trust, and may be both joined as defendants to a suit, 
 
 (i) Smith w.Snow, 3 Mad. 10. [McGachen v. Dew, 15 Eng. L. & Eq. 
 
 (A) Franco v. Franco, 3 Ves. 75; 97.] 
 
 May V. Selby, 1 N. C. C. 235. [In (m) Greenwood v. Wakeford, ubi 
 
 Meyer v. Montriou, 9 Beav. 521, a de- supra. 
 
 cree was made against a trustee, though (n) Jacob v. Lucas, 1 Beav. 436. 
 
 it was alleged the tenant for life con- [Griffith v. Vanheythusen, 4 Eng. L. & 
 
 curred in the breach of trust.] Eq. 25.] 
 
 (0 Greenwood v. Wakeford, 1 Beav. (o) Hall v. Lack, 2 N. C. C. 631. 
 
 576 ; see Payne v. Collier, 1 Ves. jun. (p) Wilson v. Moore, 1 M. & K. 127, 
 
 170; Fuller v. Knight, 6 Beav. 205. 143. [Att.-Gen. v. Wilson, Cr. & Ph. 
 
 28.] 
 
762 OP THE REMEDIES FOR BREACH OF TRUST. 
 
 instituted for enforcing that responsibility. (g')' And so a cestui que 
 trust, who has concurred in and benefited by the breach of trust, 
 may also be joined as a defendant. (r) 
 
 The husband of a feme coverte trustee is responsible for breaches 
 of trust committed by her before marriage, and a suit may properly 
 be instituted against him to enforce that liability.(s) 
 
 The executor or administrator of a deceased trustee is liable to the 
 extent of the assets for a breach of trust committed by the testator 
 or intestate in his lifetime ; and this liability may be enforced by 
 suit.(i)^ And where there are several co-trustees, who have been all 
 implicated in a breach of trust, the representatives of those dying 
 first will be liable to the same extent jointly with the surviving trus- 
 tees, or their representatives, if they are dead.(M) It is almost super- 
 fluous to add, that if the personal representative of a trustee be 
 himself guilty of a breach of trust, his personal responsibility will be 
 the same as that of any other person who has undertaken a trust. 
 
 However, although all the co-trustees miffht properly be made 
 
 (g) Vandebende v. Livingston, 3 Sw. 459 ; see Carrol v. Connett, 2 J. J. 
 
 625; Burt v. Dennet, 3 Bro. C. C. 225. Marsh. 195; Elliott v. Lewis, 3 EJw. 
 
 (r) Trafford v. Boehm, 3 Atk. 440 ; Ch. 40 ; Redwood v. Reddick, 4 Munf. 
 
 Greenwood v. Wakeford, 1 Beav. 576 ; 222.] 
 
 Fuller V. Knight, 6 Beav. 205; Lord (<) Lyse v. Kingdom, 1 Col. 184; 
 
 Mountfort v. Lord Cadogan, 17 Ves. KnatchbuU v. Fearnhead, 3 M. & Or. 
 
 485. [See Meyer 1J. Montriou, 9 Beav. 122. [SeePharis'u. Leaohman, 20 Alab. 
 
 521.] 683.] 
 
 (s) Palmer v. Wakefield, 3 Beav. (u) Ibid. 
 227. [Moon v. Henderson, 4 Desaus. 
 
 'Salomons v. Laing, 12 Beav. 377; Bailey v. Inglee, 2 Paige, 278; Oliver v. 
 Piatt, 3 How. U. S. 333; Bush v. Bush, 1 Strob. Eq. 377; Bateman v. Margerison, 
 6 Hare, 496; Lund v. Blanshard, 4 Hare, 28, &c., where the rules on the subject 
 are laid down. See Hutchinson v. Reed, HofF. Ch. 317. Those cases, however, 
 show that such third person is not a necessary party. But see Wright v. Wood, 
 12 Jur. 595, where the third person having mortgaged the property transferred in 
 breach of trust, was held a necessary party, with his mortgagee. 
 
 ^ In Kirkham v. Booth, 11 Beav. 273, 13 Jur. 525, where a breach of trust had 
 been committed, and the trustees were all dead, and their personal representa- 
 tives were ignorant of the matter, the court refused to hold them responsible in 
 the first instance, but directed an inquiry. The representative of a trustee, never 
 in default, is not a necessary party to a bill against the'surviving trustee: Simes 
 V. Eyre, 6 Hare, 137. So it seems, in general, where there are surviving trustees, 
 it being the duty of the latter to place the trust fund in a proper position, and to 
 recover from the representatives of the deceased trustee, anything that may be 
 due from him: Beatlie v. Johnson, 8 Hare, 177; see London Gas Light Co. v. 
 Spottiswoode, 14 Beav. 264. But see Hall v. Austin, 10 Jur. 452; 2 Coll. 570; 
 and Penny v. Penny, 4 Engl. L. & Eq. 55, as to a general administration suit. 
 The representative of a defaulting trustee, fairly accounting, is entitled to deduct 
 his costs of suit out of the assets, though they may be insufficient to repair the 
 ■ breach of trust: Haldenby v. SpofTorth, 9 Beav. 195. 
 
OF THE KEMEDIBS FOR BREACH OF TRUST. 763 
 
 defendants in a suit by the cestui que trusts for relief against a joint 
 breach of trust, yet (independently of the late general order of the 
 court,(a;) which we shall consider presently), the necessity of making 
 them all defendants was at one time far from being conclusively esta- 
 blished. The doubt on this point was strongly countenanced by 
 Lord Eldon's observations in the case of Walker v. Symonds,(?/) 
 where his Lordship said, " when three trustees are involved in one 
 common breach of trust, a cestui que trust suffering from the breach, 
 and proving that the transaction was neither authorized nor adopted 
 by him, mai/ proceed against either or all of the trustees." And there 
 are other cases, both before and since that of "Walker v. Symoiids, 
 which tend to countenance the doctrine, that it was competent for 
 the cestui que trusts to sue one or more of the parties guilty of a 
 joint breach of trust, without joining the others as defendants.(s) 
 However, the general rule of the court requires that all persons who 
 are jointly liable to satisfy the plaintiff's demand, shall be made 
 parties to a suit. (a) And in a very recent case it has been decided, 
 that the cases that have been referred to do not establish any excep- 
 tion to the general rule with *regard to trustees. In Munch .-^r 9-1-1 
 V. Cockerell,(S) a bill was filed by cestui que trusts against '- ■* 
 the two surviving trustees of a settlement, charging them with a 
 breach of trust, but without joining as defendants the representatives 
 of the two deceased trustees, who had been equally implicated ; an 
 objection was taken for want of these parties, and the Vice-Chan- 
 cellor (Sir L. Shadwell), after reviewing all the authorities, allowed 
 the objection, and held, that where several trustees were implicated 
 in a breach of trust, the cestui que trust was not at liberty to file a 
 bill to recover the trust fund against some of them only, but must 
 bring before the court all of the trustees who are living, and the 
 representatives of such of them as are dead.(b) And the decision of 
 Lord Langdale, M. R., in the more recent case of Perry v, Knott,(c) 
 is to the same effect.' 
 
 However, where the breach of trust is such as amounts to a wrong- 
 
 {x) 32d Order of August, 1841. (i) Munch v. Cookerell, 8 Sim. 219. 
 
 (1/) 3 Swans. 75. " (c) 4 Beav. 179. [Fowler v. Reynall, 
 
 (z) Ex parte Angle, Barnard, 425; 2 De G. & Sm. 749; 13 Jur. 650, in 
 
 2 Atk. 162; Routh v. Kinder, 3 Swanst. note; see Hall v. Austin, 2 Coll. C. C. 
 
 114, n.; Wilkinson v. Parry, 4 Russ. 570; Wyllie u. Ellice, 6 Hare, 505; but 
 
 274; Wilson v. Moore, 1 M. & K. 126, see McGachen v. Dew, 15 Engl. L. & 
 
 146. Eq. 100.] 
 
 (a) 1 Dan. Pr. 339; 4 Russ. 274, n.; 
 Perry v. Knott, 4 Beav. 103. 
 
 ■ Where two classes of trustees had committed a breach of trust, it was held 
 that the cesiuique trusts might proceed against one class without making the other 
 class parties: McGachen v. Dew, 15 Engl. L. & Eq. 97. 
 
764 OP THE REMEDIES FOR BREACH OF TRUST. 
 
 ful act, as, for instance, -where there has been a fraudulent alienation 
 of the trust estate, every trustee is separately liable, and there is no 
 contribution between them ; but each case is distinct, depending upon 
 the evidence against each party.((^) 
 
 Although the rule of the court requires the presence of all parties 
 implicated in an alleged breach of trust, before it will make a decree ; 
 yet the decree, when made, will be against all the defendants seve- 
 rally, as well as jointly, and the plaintiffs at their option may 
 proceed against any one or more of the co-defendants, and recover 
 the whole amount from those who are so singled out. It will then 
 be for the trustees who have been compelled to satisfy the whole 
 claim, to enforce their right to a contribution as against their co- 
 trustees, (e) 
 
 The rule of practice, requiring the presence of all the parties im- 
 plicated in a breach of trust, was found to occasion considerable 
 diflSculty, and the 32d General Order of August, 1841, was made to 
 remedy this inconvenience. That order provides, that in all cases 
 in which 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." And this order has 
 been judicially held to apply to suits by cestui que trusts against 
 trustees for breach of trust.(/) And on the same principle, where 
 the trust property has been assigned by the trustee, the plaintiff 
 under this order might doubtless proceed against the assignee alone, 
 without joining the trustee himself as a party. However, it is con- 
 ceived that a cestui que trust, who is sued as having participated in 
 the breach of trust, can scarcely be considered as coming within the 
 order, for the demand against that cestui que trust and the trustees, 
 could with difficulty be regarded as a joint and several demand. 
 
 The relief afforded in equity, in case of a breach of trust, is two- 
 fold.^ First, It is retrospective, in order to remedy the mischief 
 already done; and secondly, prospective, with a view to the pre- 
 vention of further injury. 
 
 (d) Att.-Gen. «. Wilson, Cr. & Ph. 1, la way «. Johnson, Id. 319. [Norris «. 
 28; see Char. Corporation i). Sutton, 2 Wright, 14 Beav. 310; Hall i). Austin, 
 Atk. 400, 406; Att.-Gen. v. Brown, 1 2 Coll. 570 (on the authority of Perry t). 
 Sw. 265,306. [Cunningham 1). Pell, 5 Knott, merely). But see Penny w. Pen- 
 Paige, 612.] ny, 4 Engl. L. & Eq. 55; Fowler v. 
 
 (c) Ex parte Shakeshaft, 3 Bro. C. C. Reynall, 2 DeG.&Sm. 749, contra. The 
 
 198 ; KnatchbuU v. Fearnhead, 3 M. & 52d rule in Equity of the U. S. courts; 
 
 Cr. 124. and the 49th in Penna., are the same as 
 
 (/) Perry v. Knott, 5 Beav. 293 ; Kel- the above order.] 
 
 ' In Goodwin v. Gornell, 2 Coll. C. C. 457, it was held that a solicitor advising 
 a breach of trust, and profiting thereby, might be stricken ofTthe rolls. 
 
OF THE REMEDIES FOR BREACH OF TRUST. 765 
 
 *The court in the first place endeavors as far as possible to r^cooi 
 replace the parties in the same situation as they would have 
 been in, if no breach of trust had been committed. And for this pur- 
 pose, where the trust property has been improperly disposed of, and 
 is capable of being followed in specie, as where it consists of real 
 estate, it will compel the trustee, or the party in possession (if the 
 latter have taken with notice of the trust), to reconvey the estate to 
 the purposes of the trust.((7)^ 
 
 But in general, trust property cannot be followed, unless it has 
 actually consisted of real estate before the commission of the breach 
 of trust. For if a trustee for the purchase of land misappropriate 
 the trust funds, and afterwards purchase real estate in his own name ; 
 it has been held, that the cestui que trusts cannot maintain any spe- 
 .cific claim to the lands so bought, unless they can show that the lands 
 were actually purchased with the trust-moneys.(A) However, parol 
 evidence will be admitted for the purpose of identifying the purchase 
 as having been made with the trust-money. (i) And where the amount 
 of the purchase-money paid by the trustee, corresponds very nearly 
 with that of the trust fund to be invested, that will be an important 
 fact of evidence to show that the purchase was made in execution of 
 the trust.(A;) And if it can be actually proved by means of the 
 cheques or otherwise, that the payment was made with trust-money, 
 that will unquestionably be the best evidence for this purpose.(Z)^ 
 
 (g) Mansell v. Mansell, 2 P. Wms. (i) Lowden v. Lowden, 2 Bro. C. C. 
 
 681 ; Gorges v. Pye, 7 Bro. P. C. 221 ; 583. 
 
 1 P. Wms. 128. (k) Ibid.; and see Small v. Attwood, 
 
 ^{h) Kixk V. Webb, Prec. Ch . 84 ; Perry Younge, 507. 
 
 V. Phillips, 4 Ves. 108. [See Roberts v. (/) Price v. Blackmore, 6 Beav. 507, 
 
 Brooms, 1 Harringt. 571; Pharis v. 513. 
 Leachman, 20 Alab. 683.] 
 
 ' Ante, p. 164, &c., and notes ; Oliver v. Piatt, 3 How. U. S. 333 ; Bush v. Bush, 1 
 Strobh. Eq. 377 ; Bailey v. Inglee, 2 Paige, 278. In Heth v. Richmond R. R. Co., 4 
 Gratt. 482, the purchaser was, under the circumstances, only held liable for the 
 purchase-money, with interest. 
 
 ' As to the right to follow trust funds into land, see notes to p. 91, and p. 164; 
 and Pierce v. McKeehan, 3 W. & S. 280 ; Turner v. Petigrew, 6 Humph. 438 ; 
 MofEt V. McDonald, 1 1 Humph. 457 ; Garrett v. Garrett, 1 Strob. Eq. 96 ; Brothers 
 V. Porter, 6 B. Monr. 106; Martin v. Greer, 1 Geo. Dec' 109: Cheshire v. Che- 
 shire, 2 Ired. Eq. 569; see Blaisdell v. Stevens, 16 Verm. 79 ; 1 Greenl. Cruise, 357. 
 The cestui que trust has the election to take the land, or the securities for it : Mur- 
 ray V. Lylburn, 2 J. C. R. 441 ; Bonsall's Appeal, 1 Rawle, 474 ; Kaufman v. 
 Crawford, 1 Watts & Serg. 134. In Oliver v. Piatt, 3 How. U. S. 333, the rule is 
 thus laid down by Judge Story : " It is a clearly established principle in equity 
 jurisprudence, that whenever the trustee has been guilty of a breach of the trust, 
 and has transferred the property, by sale or otherwise, to any third person, the 
 cestui que trust has a full right to follow such property into the hands of such third 
 person, unless he stands in the predicament of a bona fide purchaser, for a valuable 
 
766 OP THE REMEDIES FOB BREACH OF TRUST. 
 
 So, if a trust estate be sold under a power, and the trustees, or the 
 person acting as their agent, at the same time or very shortly after- 
 wards, make a purchase of another estate, this will be regarded as 
 one transaction. (m) And although the purchase-money paid for the 
 second estate be of greater amount than the proceeds of the first sale, 
 the same relief will, notwithstanding, be given, and the cestui que 
 trusts will be decreed to have a lien on the estate so purchased, for 
 the amount of the trust fund.(w) 
 
 If the property cannot be followed in specie, or if the holder, 
 having taken without notice, cannot be made liable to the trust, the 
 trustee will be decreed to compensate the cestui que trusts by pay- 
 ment of a sum equal to the value of the trust property, or by pur- 
 chasing other property of equal value for their benefit.(o) And in 
 all cases he will further be decreed to account for all rent and in- 
 terest or other profit or advantage, received from the trust estate, or 
 in any way arising from the breach of trust. (p) 
 
 And in taking the account against the trustee, he will invariably 
 be charged with the amount of principal and income, which would or 
 
 (jn) Price v. Blackmore, 6 Beav. 507. U. S. 333 ; though all the money be not 
 
 (n) 6 Beav. 507. paid; Flagg v. Mann, 2 Sumn. 459.] 
 (o) Mansell v. Mansell, ubi supra: (p) Kaye t>. Powell, 1 Ves. jun. 408; 
 
 Earl Powlelt D.Herbert, 1 Ves.jun. 297; Vandebentle v. Levingston, 3 Swanst. 
 
 Pooock V. Reddington, 5 Ves. 794; 625; Forrest ti. Elwes, 4 Ves. 497; Po- 
 
 French v. Hobson, 9 Ves. 103; Byrch- cock v. Reddington, 5 Ves. 794; 'Ba.tev. 
 
 all V. Bradford, 6 Mad. 235; Fyler v. Scales, 12 Ves. 402; Cravvshay u Col 
 
 Fj'ler, 3 Beav. 550. [Freeman v. Cook, lins, 15 Ves. 226 ; Docker v. Somes, 2 
 
 6 Ired. Eq. 379; Norman v. Cunning- M. & K. 655. 
 
 ham, 5 Gratt. 72 ; Oliver w. Piatt, 3 How. 
 
 consideration, without notice. And if the trustee has invested the trust properly, 
 or its proceeds, in any other property into which it can be distinctly traced, the 
 cestui que trust has his election either to follow the same into the new investment, 
 or to hold the trustee personally liable for the breach of the trust. This right or 
 option of the cestui que trust, is one which positively and exclusively belongs to 
 him ; and it is not in the power of the trustee to deprive him of it by any subse- 
 quent repurchase of the trust property, although in the latter case, the cestui que 
 trust may, if he pleases, avail himself of his own right, and take back and hold 
 the trust property upon the original trust ; but he is not compellable so to do. 
 The reason is, that this would enable the trustee to avail hinlself of his own 
 wrong ; and if he had made a profitable investment of the trust fund, to appro- 
 priate the profit to his own benefit, and by a repurchase of the trust fund to 
 charge the loss or deterioration in value, if any such there had been, in the 
 mean time, to the account of the cestui que trust, — wherea#,'the rule in equity is, 
 that all the gain made by the trustee, by a Wrongful application of the trust fiind, 
 shall go to the cestui que trust, and all the tosses shall b^e borne by the trustee 
 himself." See also. Ex parte Montefiore, De Gex, BankrJ R. 171. 
 
 A cestui que trust has no right, however, to be subrogateS; to the claims of credi- 
 tors, to the payment of whose debts the trust fund has befen misapplied. Winder 
 V. Diffenderifer, 2 Bland. Ch. 198; see ante, 364, and note. 
 
OF THE EBMEDIES FOR BREACH OF TRUST. 
 
 767 
 
 might have been received from the trust estate, if no breach of trust 
 had been *committed.(?)^ Fov instance, where the trust was |-^g23] 
 to invest in stock, which the trustee neglected to do, and in 
 the mean time the price of stock rose, the trustee was decreed to pur- 
 chase as much stock, as might have been bought with the trust fund, 
 at the time when it ought to have been invested ;(r) and many similar 
 examples of the application of this doctrine might be adduced.(s)= 
 Wherever a prima facie case of misconduct is made out against trus- 
 tees, the plaintiff is entitled to a decree, that they shall account for 
 whatever they might have received without their wilful default or 
 neglect. And it is immaterial, that in a prior suit by other parties 
 against them, for the same matter, a common decree for an account 
 had been made in the usual way.(t) 
 
 Upon the same principle, a trustee will be charged with interest on 
 any sums retained uninvested by him, or lost through his misconduct. 
 And the ordinary rate of interest so charged is four per cent. ;(w) 
 although where the trustees have been guilty of gross neglect, or 
 have committed an active breach of trust,— as by employing the trust 
 funds in trade or otherwise, for their own benefit, — or their conduct 
 has been fraudulent or improper, the rate of interest will be five per 
 
 (g) Shepherd v. Twogood, T. & R. («) Hicks v. Hicks, 3 Atk. 274 ; Den- 
 
 379: Pride v. Fooks, 2. Beav. 430; ton a)..Shellard, 2 Ves. 239; Lincohi u. 
 
 Roche t). Hart, 11 Ves. 60. Allen, 1 Bro. P. C. 553; Perkins v. 
 
 (r) Byrchell v. Bradford, 6 Mad. 235, Bayntun, 1 Bro. C. C. 375 ; Newton v. 
 240; Pride r. Fooks, 2 Beav. 430; see Bennett, lb. 359; Littlehales v. Gas- 
 Dimes V. Scott, 4 Russ. 195; ut supra, coigne, 3 Bro. C. C. 73; Franklin v. 
 p. 371. Frith, lb. 433; Younge v. Combe, 4 
 
 (s) French v. Hobson. 9 Ves. 103; Ves, 101; Longmore v. Broom, 7 Ves. 
 
 Pocock V. Reddington, 5 Ves. 794. 124 : Roche v. Hart. 11 Ves. 58 ; Tebbs 
 
 (() Shepherd v. Twogood, T. & R. v. Carpenter, 1 Mad. 290 ; Mousley v. 
 
 379; see Pybus v. Smith, 1 Ves. jun. Carr, 4 Beav. 49; Hosking ii. NichoUs, 
 
 193. [See on this point, Coope v. Car- 1 N. C. C. 478. [See Merrick's Est., 1 
 
 ter, 15 Engl. L. & Eq. 591.] Ashm. 305.] 
 
 ' Where land has been sold in breach of trust, there has been some difference 
 among the cases, as to the time at which its value is to be estimated, iu holding 
 the trustees liable. In Hart v. Ten Eyck, 2 J. C. R. 62, a case of fraud, the time 
 of filing the bill was held to be the proper period, there having been a rise in value. 
 In Norman v. Cunningham, 5 Gratt. 64, the court was equally divided on the 
 point ; but the time of sale of the property was that fixed by the decision ; accord, 
 Ames V. Downing, Bradf Surr. 325 ; see Heth v. Richmond, &c., R. R. Co., 4 Gratt. 
 482; Johnson v. Lewis, 2 Strob. Eq. 157. Where a trustee, in breach of trust, 
 mixes slaves with his own, the cestui que trust is not confined to profits, but may 
 have the usual rate of hire. Johnson v. Richey, 4 How. Miss. 233 ; see also Rains- 
 ford V. Rainsford, Rice's Eq. 369. 
 
 ^See, on this subject, notes, ante, p. 371, 374; and the note to Sellick v. 
 French, 1 Am. Lead. Cas. 529. 
 
768 OF THE REMEDIES FOE BKEAOH OF TRUST. 
 
 cent.(a;) But mere ordinary negligence on the part of a trustee, will 
 not be a sufficient reason for charging him with five per cent, in- 
 terest.(^)' 
 
 Where a strong case of corrupt or improper conduct is established 
 against the trustee, or if he has acted in direct contravention of an 
 express trust to accumulate, he will be charged in addition with an- 
 nual or half yearly rests, in the nature of compound interest.(z) In 
 Walker v. Woodward,(a) the husband of an administratrix had carried 
 on a farming business with the assets of the intestate, and in his an- 
 swer he admitted, that he had made a profit, but as he had kept no 
 accounts, and had blended the transactions of the farm with his other 
 concerns, he could not set forth the amount of the profits. The ac- 
 count was ordered to be taken against him, with annual rests, and 
 interest at five per cent, on those annual rests. However, it has been 
 r*'i241 ^^'^^ down, that interest is never given on *the rents of real 
 estate :(6) and it is also against the general practice to direct 
 interest to be calculated on the arrears of an annuity.(c)^ 
 
 The court will sometimes relax its general rule, and will refuse to 
 charge a trustee with past interest in case of a breach of trust, 
 although he is decreed to make good the corpus or capital of the 
 trust fund :{d) or interest will be given only from the time of filing 
 the bill.(e) However, this leniency will not be shown, unless the 
 trustee had sufficient grounds for the misapprehension of his duties, 
 and he must also have afforded the court every facility for the inves- 
 tigation of the claim.(/) 
 
 So interest has been refused on account of the staleness of the de- 
 
 (z) Treves i;. Townsend, 1 Bro. C. C. Russ. 107; vide supra [Investment], p. 
 
 384; Forbes v. Ross, 2 Bro. C. C. 430; 379. 
 
 Piety V. Stace, 4 Ves. 620; Pocock v. (a) 1 Russ. 107. 
 
 Rediiington, 5 Ves. 794; "Roche v. Hart, (6) Macartney v. Blackwood, 1 Ridg. 
 
 11 Ves. 60; Domford v. Dornford, 12 L. & S. 602. 
 
 Ves. 127; Ashburnham v. Thompson, (c) Robinson v. Gumming, 2 Alk. 
 
 13 Ves. 402; Bate ti. Scales, 12 Ves. 402; 409; Crewze i;. Hunter, 2 Ves. jun. 157;- 
 
 Crackelt v. Bethune, 1 J. & W. 586; Tew v. Earl of Winterton, 1 Ves. jun. 
 
 Heathoote v. Hulme, lb. 122; Att.-Gen. 451; Booth v. Leycester, 3 M. & Cr. 
 
 V. Solly, 2 Sim. 518 ; Brown v. Sansome, 459; Martin v. Blake, 2 Dr. & W. 125. 
 
 1 M'Clel. & Y. 427 ; Sutton v. Sharp, 1 But see Hyde v. Price, 8 Sim. 578. 
 
 Russ. 146; Mousley t;. Carr, 4Beav. 49; (cZ) Bruereii.Pemberton, 12Ves. 386; 
 
 supra, PI. [Investment.] Massey v. Banner, 4 Mad. 419; Hooper 
 
 (y) Roche v. Hart, 11 Ves. 58. v. Goodwin, 1 Sw. 485, 493 ; O'Brien v. 
 
 (s) Stackpole v. Stackpole, 4 Dow. O'Brien, 1 MoU. 533. 
 
 209 ; Brown v. Southouse, 3 Bro. C. C. (c) Lee v. Brown, 4 Ves. 369. 
 
 107; Raphael v. Boehm, 11 Ves. 92, (/) See Att.-Gen. i). Caius College, 2 
 
 13 Ves. 407, 590; Dornford t). Dornford, Keen, 150,167; Att.-Gen. «. Prettyman, 
 
 12 Ves. 127; Walker v. Woodward, 1 4 Beav. 462. 
 
 ' On the subject of interest against trustees, see ante, note to p. 374. 
 2 As to compound interest, see ante, 374, and note. 
 
OF THE KEMEDIES FOR BREACH OP TRUST. * 769 
 
 mand ;{g) and, in one instance, owing to the small amount of the 
 sum in question.(A) It is, in the case of trusts for charities, how- 
 ever, that the discretion of the court has most frequently been exer- 
 cised in refusing to direct a retrospective account against the trustees ; 
 and where there has been a bona fide misapprehension by the trustees, 
 the account against them will usually be confined to the time of filing 
 of the bill.(i) 
 
 It may be observed, that interest will not be given against a trus- 
 tee, unless it be prayed by the bill.(^) And the question- must be 
 disposed of at the hearing on further directions, and cannot regularly 
 be brought forward by petition. (Z) 
 
 A trustee, against whom a decree is made with interest, will not 
 necessarily be fixed with the costs, if the suit be not occasioned en- 
 tirely by his misconduct.(»i) But where his breach of trust is the 
 sole occasion of bringing the parties into court, he will be decreed to 
 pay the costs. (w) The discretion of the court on this point, will be 
 governed by the conduct of the trustee in each individual case. But 
 the further consideration of the subject will be reserved more conve- 
 niently for a future place, (o) 
 
 The relief against a breach of trust is, in the second place, 
 prospective, in order to prevent further injury. And with this view, 
 the old trustees will be dismissed from their office, and others ap- 
 pointed in their room.(p)^ But it is not every act amounting to a 
 breach of trust which will induce the court to remove a trustee. The 
 acts or omissions must be such as to endanger the trust property, 
 or to show a want of honesty, or capacity *to execute the r:|!C9c-i 
 duties.(5r) And where the failure in duty has proceeded from 
 
 (g) Merry v. Ryves, 1 Ed. 1. (n) Craokelt v. Bethune,' 1 J. & W. 
 
 (/i) Bone V. Cooke, 13 Price, 343; 1 589; Tebbs v. Carpenter, 1 Mad. 308; 
 
 M'Clel. 16S. vide supra, Pt. III., Div. I., Ch. II., Sect. 
 
 (0 Ante. Pt. III., Div. II., Ch. II., Sect. 2, V., p. 368. 
 
 2, XIII., p. 470, and cases cited. (o) Vide post (Costs), p. 551. [All 
 
 (A) Weymouth v. Beyer, 1 Ves. jun. parties concurring are liable in costs 
 
 426; Bruere t). Pemberton, 12 Ves. 389; without regard to the degree of culpa- 
 
 see Hooper v. Goodwin, 1 Swanst. 493. bility. Lawrence u. Bowles, 2 Phill. 140.] 
 
 (/) Crewzej).Lowth,4Bro.C.C.316; (p) Att.-Gen. u. Mayor of Coventry, 
 
 Bruere v. Pemberton, 12 Yes. 391. 7 Bro. P. C. 235 ; Ex parte Greenhouse, 
 
 (tti) Newton v. Bennett, 1 Bro. C. C. 1 Mad. 92; Att.-Gen. v. Shore, 7 Sim. 
 
 362: Raphael B. Boehm, 11 Ves. Ill; 309, n.; Att.-Gen. v. Drummond, 1 Dr. 
 
 Asliburnham I). Thompson, 13 Ves. 404; & W. 353 ; 3 lb. 162. 
 
 overruling Seers u. Hind, 1 Ves. jun. 294. (g) 2 Story, Eq. Jur. H289. 
 
 ' See ante, p. 190, 191, and notes; Parsons v. V\^inslow, 6 Mass. 361 ; Cooper 
 V. Day, 1 Rich. Eq. 26; Gibbes v. Smith, 2 Id. 131 ; Thompson v. Thompson, 2 
 B. Monroe, 161; Johnson's Appeal, 9 Barr, 416 ; Matter of Mechanics' Bank, 2 
 Barb. S. C. 446. 
 
 49 
 
770 OF THE DISCHARGE OP A BREACH OF TRUST. 
 
 misunderstanding ;(r) or from following the long uninterrupted prac- 
 tice of their predecessors without any improper motive, the court has 
 refused to discharge them from the trust.(s) 
 
 In case of improvident or improper conduct on the part of a trus- 
 tee, the court will refuse to order a trust fund, which had been paid 
 into court, to be made over to him, but will retain it in court for the 
 benefit of the persons beneficially interested. (<)' 
 
 A receiver will also be appointed of the trust property, for its im- 
 mediate and temporary protection against any further breaches of 
 trust by the existing trustees, wherever the circumstances of the 
 case render such a precaution advisable.(M) 
 
 A plaintiff, who seeks to charge a trustee with the consequences of 
 a breach of trust, is bound so to state his case upon the bill, that the 
 circumstances alleged, if proved, must necessarily and at all events 
 constitute a breach of trust. Therefore, if certain payments by the 
 trustees are complained of as illegal, but under certain circum- 
 stances, which are not negatived. by the bill or information, the pay- 
 ments in question might be justifiable, a demurrer to the bill for 
 want of equity will be allowed. (2;)^ 
 
 2d. Of the discharge of a breach of trust.^ 
 
 A trustee may be exonerated from the consequences of a breach 
 
 (r) Att.-Gen. v. Coopers' Company, («) Ante, p. 212. [Calhoun ?). King, 
 
 19 Ves. 192. 5 Alab. 523 ; see a learned discussion 
 
 (s) Atl.-Gen. v. Caius Coll., 2 Keen, of this point in Beverley 0. Brooke, 4 
 
 150; vide supra, p. 166. Gratt. 208.] 
 
 (i) Packwood v. Maddison, 2 S. & (x) Att.-Gen. v. Mayor of Norwich, 
 
 St. 232. 2 M. & Cr. 406, 422. 
 
 " See Clagett v. Hall, 9 G. & J. 80; Contee v. Dawson, 2 Bland. Ch. 264. A 
 party having a contingent interest, is entitled to have the trust fund, in a proper 
 case, paid in. Ross v. Ross, 12 Beav. 89. See post, p. 550. 
 
 ^ The general presumption is, in the first instance, in favor of due discharge 
 of the trust, especially where there may be two constructions of an act; and, 
 therefore, the cestui que trust complainant must make out his case affirmatively. 
 Maccubbin v. Cromvrell, 7 G. & J. 157 ; McGinn v. Shaeffer, 7 Watts, 412. The 
 trustee will not be liable for breaches of duty not specifically alleged. Smith v. 
 Smith, 4 J. C. R. 445; see Cooper v. Cooper, 1 Halst. Ch. 9. In Harrison u. Mock, 
 10 Alab. 196, however, fresh malversations, after bill filed, were permitted under 
 the circumstances of the case, to be proved, without amendment or supplemental 
 bill. See as to the practice on directing inquiries with regard to wilful default, 
 Coope V. Carter, 15 Eng. L. & Eq. 591. 
 
 ' Though, in general, none but the cestui que trust can interfere to set aside a 
 purchase by the trustee of the trust property, Wilson v. Troup, 2 Cow. 195; 
 Beeson v. Beeson, 9 Ban, 279; see ante, 159, &c., and notes: yet his right so to 
 do may be one to which creditors are entitled; in which case a confirmation by 
 him will not affect these intermediate rights. Iddings v. Bruen, 4 Sandf Ch. 
 223 ; Bruch v. Lantz, 2 Rawle, 392. 
 
OF THE DISCHARGE OF A BREACH OF TRUST. I'll 
 
 of trust, either by an express release from the cestui que trusts, or 
 by their having concurred or acquiesced in its commission.^ 
 
 A deed of release by cestuis que trusts to their trustees, must be 
 made with full information of all the circumstances, and of the full 
 extent of the liability of the trustees : and to avoid any question on 
 this point it is highly desirable, that the whole of the facts should be 
 fully recited in the deed. In the case of Walker v. Sjvnonds,{i/) 
 where the law on this subject was carefully considered by Lord 
 Eldon, a deed of compromise by a cestui que trust was rescinded, and 
 the co-trustees were held responsible for the loss of the trust fund, 
 on the ground that the cestui que trust had not proper information 
 of her own rights and the liabilities of the trustees at the time of 
 executing the deed. 
 
 It is almost needless to add, that a release of this description is 
 perfectly worthless, if obtained by any suppression of facts, or 
 fraudulent representations, or other undue practice on the part of 
 the trustee :(s) and for this purpose imperfect information will be re- 
 garded as equivalent to concealment.(a) 
 
 In the late case of Wedderburn v. Wedderburn,(J) the executors 
 and trustees of a testator, who were also his partners, had caused a 
 valuation to be made of the testator's share of the partnership assets, 
 and debited *themselves with the amount of that valuation, 
 as held by them in trust for the residuary legatees. They 
 then continued the partnership business, without taking out and in- 
 vesting the amount due to the testator's estate, and thus rendered 
 themselves liable for a breach of trust. A release was taken from 
 the several cestui que trusts in respect of their shares, as they respec- 
 tively came of age ; but, in accounting for their several shares, no 
 allowance was made to them in respect of any share in the profits 
 of the business, which had been carried on, partially, with the trust 
 capital. A suit was brought against the trustees, to charge them 
 with the amount of those profits, and a decree was made against them, 
 one of the grounds of that decision being, that the release was ob- 
 tained by the trustees without affording due information to the ces- 
 
 (y) 3 Swanst. 1 ; see 59. (o) 3 Swanst. 73. [See Ringgold v. 
 
 («) Leonard v. Leonard, 2 Ball & B. Ringgold, 1 Har. & Gill, 11; Briers v. 
 
 171; Jarvis v. Duke, 1 Vern. 19; Bro- Hackney, 6 Geo. 419.] 
 
 derick v. Broderick, 1 P. Wms. 239; (6) Wedderburn v. Wedderburn, 2 
 
 Cann v. Cann, lb., 727, 8; Gordon v. Keen, 722, 749; S. C, 4 M. & Cr. 41, 
 
 Gordon, 3 Swanst. 400; Ullderwood v. 52. 
 Stevens, 1 Mer. 713. 
 
 [*526] 
 
 ' See ante, notes to p. 159, 168. A breach of trust may also be discharged 
 by will, in which case it will not be necessary to show good faith in procuring 
 the confirmation. Slump v. Gaby, 22 L. J. Ch. 352. As to when a legacy 
 will be in satisfaction of a breach of trust, see Bensusan v. Nehemias, 4 Eng. L. 
 & Eq. 143. 
 
772 OF THE BISCHARGB OF A BREACH OF TRUST. 
 
 tui que trusts as to the real nature and effect of the transaction. (6) 
 In this case, the bill was not filed until twenty-two years after the 
 eldest, and more than ten years, after the youngest, of the cestui 
 que trusts had attained the age of twenty-one. 
 
 It is almost superfluous to remark, that a good release can only be 
 made by a person who is suijuris.^ Any such instrument, executed 
 by a person under disability, as by an infant or feme coverte, will be 
 merely inoperative. (e) And the protection, in respect of infancy, 
 will be continued after the infant has attained his full age, and until 
 he has obtained all the information which might have been had in 
 adult years. (ci)^ 
 
 However, it has been decided, that where unsettled demands be- 
 tween a trustee and his cestui que trust have been referred to arbi- 
 tration, and the reference has been made a rule of court under the' 
 statute, a court of equity has no jurisdiction to set aside the award of 
 the arbitrators, though it was made in ignorance of facts, which were 
 in the exclusive knowledge of the trustee, and which had been unduly 
 suppressed by him. For where the parties refer their differences to an 
 arbitrator, they put themselves at arms' length from each other, and 
 the cestui que trust is at liberty to ask the trustee all manner of 
 questions. And this reasoning, unsatisfactory as it appears, was 
 adopted and approved of by Lord Eldon in affirming the decision of 
 Sir Thomas Plumer in the case referred to.(e) 
 
 The concurrence of the cestui que trust in the breach of trust, un- 
 questionably precludes the party so concurring from afterwards ques- 
 tioning the propriety of that act.(/) Indeed, his participation in 
 the improper act will render him frimarily liable to make good any 
 loss to the other cestui que trusts to the extent of his interests in the 
 
 (6) Wedderburn v. Wedderburn, 2 Wedderbum v. Wedderburn, 4 M. & 
 
 Keen, 722,749; S. C, 4 M. & Cr. 41, 52. Cr. 41, 50. 
 
 (c) See Bateman ■U.Davis, 3 Mad. 98; (e) Auriol ?;. Smith, T. & K. 121, 136. 
 
 Ryder v. Bickerlon, 3 Swanst. 82, n. (/) Walker v. Symonds, 3 Svranst. 
 
 [See ante, 144, note, as to fraud.] 64; Brice v. Stokes, 11 Ves. 326; Nail 
 
 {d) Walker v. Syraonds, 3 Swanst. v. Punter, 5 Sim. 555. 
 69; Overton v. Banister, 3 Hare, 503; 
 
 ' So, where the interest of the cestui que trust is made inalienable (under the 
 New York statute), his assent will not relieve the trustee- from the consequences 
 of a breach of trust, in selling the lands : Hone v. Van Schaick, 7 Paige, 221. 
 
 2 Settlements between guardian and ward, just after the latter has come of age, 
 are regarded with great suspicion ; and proof of everything requisite to make 
 them valid, is necessary: Elliott v. Elliott, 5 Binn. 8; Say v. Barnes, 4 S. &E. 
 114; Luken's Appeal, 7 W. & S. 48; Stanley's Appeal, 8 Barr, 431; Walleri). 
 Armistead, 2 Leigh, 11 ; Fish v. Miller, 1 Hoff. Ch. 267; Brewer w. Vanarsdale, 
 6 Dana, 204; Johnson v. Johnson, 2 Hill's Eq. 277 ; Williams v. Powell, 1 Ired. 
 Eq. 460. But in Kirby v. Taylor, 6 J. C. R. 242, it was said that such a release 
 by the ward to the guardian, given freely and fairly, without any fraud, misre- 
 presentation, or undue practices, would be valid. 
 
OF THE DISCHARGE OF A BREACH OP TRUST. 773 
 
 trust estate.(^) However, this concurrence will not prejudice the 
 cestui que trust, unless it be made with the knowledge, that the act 
 in question was a breach of trust.(A) The remedy for a breach of 
 trust may also be barred by the acquiescence of the parties, who are 
 entitled to call it in question.(t) For instance, where a tenant for life 
 had permitted the fund *to remain in the hands of one of two r*g27-l 
 co-trustees alone for ten years without any complaint, he was L 
 not suffered to charge the other trustee with the interest.(^) And 
 acquiescence for six years has been held a sufficient bar.(Z) And 
 where a party lies by for twenty-five(m) or eighteen years,(w) he has 
 been held to be precluded by his laches from afterwards asserting his 
 rights. But length of time will not have the same effect as a bar 
 to the relief, where the relation of trustee and cestui que trust is still 
 subsisting, but in that case, relief will be granted after a lapse of 
 time which would otherwise have unquestionably operated as a bar. 
 Thus, in Wedderburn v. "Wedderburn,(o) the bill was not filed until 
 twenty-two years after the eldest, and more than ten years after the 
 youngest, of the cesttd que trusts had reached twenty-one, and the 
 relief was granted principally on the ground that the relation of 
 trustee and cestui que trust was still subsisting between the parties. (o)' 
 It has been already stated, that no acquiescence will prejudice a 
 person who is ignorant of his rights -.{p) and equity has repeatedly 
 relieved against a breach of trust, notwithstanding the length of ex- 
 press or implied acquiescence, where the cestui que trust has not had 
 due information of the circumstances. (§') 
 
 (g-) Booth V. Booth, 1 Beav. 125, (12) Gregory u Gregory, Coop. 201; 
 
 130; Greenwood v. Wakeford, lb. 576; Jac. 631. 
 
 Kellaway v. Johnson, 5 Beav. 319; (0) Wedderburn v. Wedderburn, 2 
 
 Lord Montfort v. Lord Cadogan, 17 Ves. Keen, 749 ; 4 M. & Cr. 52. 
 
 490; Lincoln i>. Wright, 4 Beav. 427; (p) Walker v. Symonds, 3 Svvansf 
 
 [McGachen «. Dew, 15 Eng. L. & Eq. 64; Cholraondley v. Clinton, 2 Mer. 
 
 100.] 362; Blennerhasset v. Day, 2 Ball & B. 
 
 (A) Walker v. Symonds, 3 Sw. 64; 137; ante, p. 168, 265. [Prevost v. 
 
 Buckeridge v. Glasse, Cr. & Ph. 135, 6. Gratz, Pet. C. C." 367 ; 6 Wheat. 487; 
 
 (i)Bricet).Stoke5, 11 Ves. 3I9;Lang- Mellish Est., 1 Pars. Eq. 486; Beeson 
 
 ford ■!;. Gascoigne, lb. 333; Walker v. v. Beeson, 9 Barr, 300.] 
 
 Symonds, 3 Sw. 64; Harden t;. Parsons, (g) Ryder v. Bickerton, 3 Sw. 80, 
 
 1 Ed. 145; Walmesley v. Booth, 2 n.; Underwood w. Stevens, 1 Mer. 712; 
 
 Atk. 25. Adams V. Clifton, 1 Russ. 207; Bowes 
 
 (t) Brice U.Stokes, 11 Ves. 326. v. London Waterworks Company, 3 
 
 (0 Walmesley I). Booth, 2 Atk. 25. Mad. 375; Jac. 324; Randall ?j. Er- 
 
 (m) Blennerhasset v. Day, 2 Ball & rington, 10 Ves. 423; Wedderburn v. 
 
 B. 128. [Villines v. Norfleet, 2 Dev. Wedderburn, 2 Keen, 749; 4 M. & Cr. 
 
 Eq. 167.] 52; ante, p. 143, 250. 
 
 ■ See as to acquiescence, ante, page 168, 169, and notes; Phillipson v. Gatty, 
 7 Hare, 516; and Munch v. Cockerell, 5 My. & Cr. 178 ; Villines v. Norfleet, 2 
 Dev.Eq. 167. 
 
774 OP THE DISCHARGE OF A BKEACH OF TRUST. 
 
 It lies upon the trustee, ■vrho rests his defence on the acquiescence 
 of the cestui que trusts in the breach of trust, to prove that they had 
 knowledge or notice of the facts.(?") But where there is doubt on 
 that point, the court will refer it to the Master to inquire and report 
 as to the existence of such knowledge, or notice.(s) But this refe- 
 rence will not be directed where the defence of acquiescence is not 
 raised by the answer, and is not satisfactorily proved by the evidence, (i) 
 
 However, even where the cestui que trust obtains a decree in his 
 favor, after a considerable lapse of time, on the ground that he had 
 no information of the breach of trust; yet if he have been guilty of 
 negligence in not informing himself of his rights with a view to their 
 due assertion, the court has shown its disapprobation of his laches, 
 by limiting the account to the time of filing the bill, and by refusing 
 the plaintiff" his costs of the suit.(M) 
 
 The acquiescence must be by persons competent to bind them- 
 selves by their acts, for the consent of infants or married women to 
 an act, which is a breach of trust, will not prejudice them, and on 
 the removal of their disability, they will be entitled to a decree 
 against their trustees. («) Although *the case may be diffe- 
 '- -^ rent, where the act of the infants or femes eoverte amounts 
 to fraud by them on their trustee. (2/) 
 
 The acquiescence of a cestui que trust entitled in remainder after 
 an existing life interest, will not be binding on him during the con- 
 tinuance of the preceding life estate ; for until his own title accrues 
 in possession, he has no immediate right to interfere in the adminis- 
 tration of the trust property.(2) 
 
 The Statutes of Limitation are no bar to the remedy of a cestui 
 que trust against his trustee for a breach of trust. («) Although, as 
 we have already seen, a court of equity adopts to its fullest extent 
 the analogy of those statutes, and refuses relief to a party who lies 
 by for a lengthened period, after notice of the breach of trust. (&)' 
 
 (r) Randall v. Errington, 10 Ves. 428 : Cr. 41, 50 ; March v. Russell, 3 M. & 
 
 Lincoln «. Wright. 4 Beav. 427 ; Downes Cr. 31, 42. 
 
 V. Grazebrook, 3 Mer. 208 ; ante, p. 169. (?/) See Ryder v. Bickerton, 3 Sw.82, 
 
 (s) Walker v. Symonds, 3 Swanst. n. ; Cory v. Gertchken, 2 Mad. 40 
 
 44; Broadhurstu. Balguy, 1 N. C. C. 16. [See Davis v. Tingle, 8 B. Monr. 539 
 
 («) Lincoln v. Wright, 4 Beav. 427. Hall v. Tiramons, 2 Rich. Eq. 120 
 
 (u) Bowes V. East India Waterworks Stoolfoss v. Jenkins, 12 S. & R. 399 
 
 Company, 3 Mad. 384; ante, p. 169, Wright v. Snowden, 2 De G. & Sm. 
 
 &o. 321; ante, p. 144, note.] 
 
 (a:)SeeRyderi;. Bickerton, 3 Swanst. (2) Bennett v. Coley, 5 Sim. 181; 2 
 
 82, n. ; Bateman v. Davis, 3 Mad. 98; M. & K. 225; ante, p. 266. 
 
 Kellaway v. Johnson, 5 Beav. 319; (a) Mihies ■«. Cowley, 4 Price, 103; 
 
 Buckeridge v. Glaisse, Cr. & Ph. 136; ante, p. 264. 
 
 Wedderburn v. Wedderburn, 4 M. & (i) Ante, p. 264, and see Smith v. 
 
 Clay, 3 Bro. C. C. 639, n. 
 
 ' See ante, p. 264, and note; and Scott v. Haddock, 11 Geo. 258. 
 
/ 
 OP THE DISCHARGE OF A BREACH OF TRUST. 775 
 
 The usual clause in trust deeds, providing for the indemnity of 
 the trustees, does not extend to exonerate them from the conse- 
 quences- of a breach of trust.(c) 
 
 The discharge of a trustee under the Insolvent Act is no bar to an 
 equitable demand against him by his cestui que trusts in respect of a 
 breach of trust, where the amount for which he is liable has not been 
 ascertained.{d) Although it would be different where the debt cre- 
 ated by the breach of trust is ascertained and determined, either by 
 a decree in a suit, or by an account settled between the parties, and 
 where the debt (being thus specifically in existence) is included by 
 the insolvent in the schedule of debts filed by him under the act.(e) 
 
 And the same distinction obtains with regard to the operation of a 
 bankrupt's certificate. If the debt created by the breach of trust be 
 ascertained in its amount, so that it may be proved against the bank- 
 rupt's estate, it will be discharged by the certificate.(/) But where 
 the extent of the bankrupt's liability, if any, still remains to be deter- 
 mined, and the amount consequently cannot be proved as a debt 
 under the fiat, the certificate will be no answer to a suit afterwards 
 instituted by the cestui que trust.{g) 
 
 Where a trustee had given a bond for the due administration of 
 the trust, and upon the commission of a breach of trust, the cestui 
 que trust had sued and recovered upon the bond at law, that is no 
 discharge of the breach of trust, but the cestui que trust may still 
 compel a specific performance of the trust, although the relief will 
 be given him only on the terms of repaying to the trustee with inte- 
 rest, the sum recovered on the bond. (A) 
 
 In the absence of any express release, the conduct of a cestui que 
 trust may also amount to a waiver of his right to relief against a 
 trustee for a breach of trust, so as to preclude him from afterwards 
 asserting that right. 
 
 *Thus, where there has been a suit between the trustee and 
 the cestui que trusts, in which they might have brought for-C*^^^] 
 ward any claim against the trustee in respect of his conduct in the 
 trust, and they have suffered the decree to be made without advancing 
 any claim, they will not be permitted to commence any subsequent 
 proceedmgs against the trustee for a breach of trust, (e) 
 
 But if the question of the breach of trust could not have been 
 raised in the first suit, a cestui que trust, although a party to that 
 
 (c) Mucklow.. Fuller, Jac. 198; see (/) Samuel v. Jones, 2 Hare, 246- 
 Langstoa .. Ohyant, Coop. 33. see Wall .. Atkinson, 2 Rose, 196 ' 
 
 Jd) Buckeridge .. Glasse, Cr. & Ph. (g) See Ex parle Mare, 8 Ves. 335. 
 
 .'. o 1 -J ^, W Morecroft i). Bowling, 2 P. Wms. 
 
 (e) Buckeridge v. Glasse, Cr. & Ph. SM 
 
 127, 132; Gibbons v. Hawley, 2 Hare, (i) Guidioi v. Kinton, 6 Beav. 517. 
 
776 OF THE BANKEUPTCY AND 
 
 suit, will not be precluded from instituting a subsequent suit of his 
 own, charging the trustee with a breach of trust.(A) For instance, 
 where there had been a legatee's suit, in which the usual decree was 
 made for taking the accounts and for ascertaining the residue, and 
 A. B. had gone in before the Master under that decree, and claimed 
 the residue, but no final decree had been made in the legatee's suit; 
 it was held, that A. B. was not precluded from instituting a fresh 
 suit against the executor, to charge him with a breach of trust in 
 respect of his accounts. (?) 
 
 [*530] ^CHAPTER II. 
 
 OF THE BANKEUPTCY AND INSOLVENCY OP TEUSTEES. 
 
 Real or personal property, which is held upon an express trust, 
 is not within the intent of the Bankrupt or Insolvent Acts, and will 
 not pass to the assignees on the bankruptcy or insolvency of the 
 trustee. (a)' However, if the trust be merely constructive, and the 
 equity against the bankrupt or insolvent be at all doubtful, the legal 
 estate will vest in assignees ; although it will remain liable in their 
 hands to all the same equities that might have been enforced against 
 the bankrupt. (6) 
 
 Where a declaration of the trust has been made by the trustee, 
 the title of the cestui que trusts will be complete as against his as- 
 signees upon his bankruptcy, although the property consists of choses 
 in action, and no notice of the title of the cestui que trusts is given to 
 the parties liable to the payment, (c) And where a trust of land is 
 actually created previously to the bankruptcy of the trustee, but no 
 written declaration of the trust is executed by him until after the 
 commission of an act of bankruptcy, the subsequent declaration is 
 
 (Jc) Guidici v. Kinton, 6 Beav. 517. Wright, 2 Hare, 120 ; Ex parte Kensing- 
 
 (0 Ibid. ton,2V. &B. 79. 
 
 (a) Copeman ii. Gallant, 1 P. Wms. (6) Taylor ii. Wheeler, 2 Vern. 564; 
 
 314; Joy v. Campbell, 1 Sch. & Lef. Bennet v. Davis, 2 P. Wras. 316; Car- 
 
 328 ; Winch «. Keeley, IT.R. 619; Ex penter v. Marnell, 3 B. & P. 40; see 
 
 parte Gillett, 3 Mad. 28; Garderi). Eowe, Waring v. Coventry, 2 M. & K. 406. 
 
 2 S. & St. 346; 5 Russ. 258; Pinkett v. (c) Pinkett v. Wright, 2 Hare, 120. 
 
 1 Kip V. Bank of N. Y., 10 John. 63; Blin v. Pierce, 20 Verm. 25; Ontario 
 Bank v. Munford, 2 Barb. Ch. 596; Hynson v. Burton, 5 Pike, 496 ; Price v. Pol- 
 lard, 2 Dallas, 60; Kennedy v. Strong, 10 John. 289; Clarke i;. Minot, 4 Meto. 
 346; see Ingraham on Insolvency, 64. 
 
INSOLVENCY OF TRUSTEES. 777 
 
 sufficient evidence of the title of the cestui que trusts, and will ex- 
 clude any claim by the assignees of the trustee. ((i) 
 
 The distinction between property, belonging beneficially to a bank- 
 rupt or insolvent, and that which is vested in him as a trustee, is 
 recognised and acted upon by courts of law. Therefore where a 
 debt or other chose in action has been assigned for a valuable con- 
 sideration, and the assignor afterwards becomes bankrupt, it has 
 been held that the legal title did not pass to his assignees, but re- 
 mained in the bankrupt as trustee for the person to whom he had 
 assigned it, and that an action might be brought in the bankrupt's 
 name against the debtor to recover the debt.(e) 
 
 Where the title of the cestui que trust to the property in the bank- 
 rupt's possession is not conclusively established, a reference will be 
 directed to the Master to ascertain and report upon the existence of 
 any trust ;(/) or in some cases the court will direct an issue to be 
 tried at law with the view of determining that question. (^) 
 
 Trust property may be followed into the hands of the bankrupt or 
 insolvent trustee whenever it is of a tangible nature ; and this right 
 exists not only with respect to lands or other real estate,(7i) but also 
 as to such *personal and movable effects as are capable of p^roi-i 
 being identified. (i) For instance, money or goods that are L -' 
 ear-marked ;(A) or plate, &c. ;(Z) or furniture ;(m) or a sum of stock 
 standing in the bankrupt's name ;(?i) or a policy of insurance ;(o) or 
 shares in a trading or banking company ;[p) may be so followed ; and 
 it is immaterial, that the trust property is blended with other pro- 
 perty of the same nature belonging beneficially to the trustee. (gf) 
 However, where a sum of stock, or a number of shares, part of which 
 are held in trust, are standing in a person's name, without anything 
 to distinguish the part which belongs to him beneficially, from that 
 which is vested in him as trustee, and the trustee disposes of the 
 whole of the property, and afterwards repurchases other stock or 
 shares, and there are no means of identifying the repurchased pro- 
 
 (d) Gardners. Ro we, 2 S. & St. 346; 579. [Kip v. Bank of N. Y. 10 John. 
 5 Russ. 258. R. 65 ; Kennedy v. Strong, Id. 289.] 
 
 (e) Winch v. Keeley, 1 T. R. 619; (A) Ex parte Smith, 4 Deac. & Ch. 
 Carpenter v. Marnell, 3 B. & P. 40 ; 579. [Kip u. Bank of N. Y., 10 John. 
 Dangerfield v. Thomas, 9 Ad. & E. 292. 65.] 
 
 [Hynson v. Burton, 5 Pike, 496; Blin (/) Ex parte Marsh, 1 Atk. 158. 
 
 V. Pierce, 20 Verm. 25; Clarke v. Minot, {m) Ex parte Martin, 19 Ves. 491. 
 
 4 Metcalf. 346; see Ontario Bank v. (n) Ex parte Gillett, 3 Mad. 28; 
 
 Munford, 2 Barb. Ch. 616.] Pinkett v. Wright, 2 Hare, 129. 
 
 (/) Ex parte Gillett, 3 Mad. 28. (o) Bozon v. Bolland, 1 Mont. &. Bl. 
 
 (^) Gardner v. Rowe, 2 S. & St. 346. 67 ; 1 1 Sim. 124 ; Duncan v. Chamber- 
 
 (A) Ibid. laine, 11 Sim. 121. 
 
 (i) Copeman v. Gallant, 1 P. Wms. (p) Pinkett v. Wright, 2 Hare, 120. 
 
 314 ; Ex parte Smith, 4 Deac. & Chilt. (g) Ibid. 
 
778 OP THE BANKRUPTCY AND ' 
 
 perty with that originally held by him as trustee, the court would 
 have great difficulty in fastening the trust specially on the property 
 so repurchased. (/•) But in the case suggested above, if a fart only 
 of the stock or shares, standing generally in the trustee's name, were 
 disposed of by him, the court will presume that the disposition was 
 confined to that part which belonged beneficially to him, and which 
 he had the right to dispose of, and that he had no intention of deal- 
 ing with the part held by him as trustee. For instance, if one sum 
 of 20,000Z. consols were standing in the name of A., who was trus- 
 tee of one moiety and beneficial owner of the other moiety, and A. 
 were to sell and transfer 10,000Z. of the stock, the court, as against 
 A. and his assignees in bankruptcy or insolvency, would hold, that 
 the 10,000Z. transferred was the property of the bankrupt, and the 
 remaining 10,000Z. continued subject to the trust. (s) 
 
 Where the trust property does not remain in specie, but it has 
 been actually sold or made away with by the trustee, the cestui que 
 trusts have no longer any specific remedy against any part of his 
 estate on his bankruptcy or insolvency, but they must come in pari 
 passu with the other creditors, and prove against the trustee's estate 
 for the amount due to them.(^)' Where the claim of the cestui que 
 trust is for an amount already ascertained, or which may be readily 
 ascertained by computation, it will be admitted to proof as a matter 
 of course ; as where it is for a sum of money either actually paid 
 over to the trustee upon the trust,(M) or appearing to be due from 
 him on the balance of his accounts, (a;) or for which he has been de- 
 clared liable by a decree of the court,(?/) or a legacy,(«) or a sum 
 of stock ;(a) for such claims amount to good *equitable 
 ■- -' debts. (6)(1) And interest on the amount of the original 
 
 (r) 2 Hare, 128. [But see Kip v. (y) See Samuel v. Jones, 2 Hare, 
 
 Bank of N. Y., 10 John. R. 65.] 246; Gibbons v. Hawley, lb. n.; Wall 
 
 (s) 2 Hare, 129. v. Atkinson, 2 Rose, 196. 
 
 It) Ex parte Shakeshaft, 3 Bro. C. C. (z) Ex parte Heald, 12 Law Jour. 
 
 196 ; Keble v. Thompson, lb. HI; Ex N. S., Bankr. 37. 
 
 parte Watson, 2 Ves. & B. 414: Ex (a) Ex parte Shakeshaft, 3 Bro. C. 
 
 parte Fairfield, 1 Gl. & J. 221. ' C. 196; Ex parte Fairfield, 1 Gl. & J. 
 
 (ti) Keble v. Thompson, 3 Bro. C. C. 221. 
 
 Ill; Biok iJ. Motley, 2 M. & K. 312. (6) Archb. Bankrupt Law, 99, 9lh 
 
 (_x) Ex parte Watson, 2 Ves. & B. ed. 
 414; Ex parte Richardson, 3 Mad. 138. 
 
 (1) However, it has been decided, that an equitable debt, though provable, 
 could not be made the foundation of a commission, as the petitioning creditor s 
 debt. Ex parte Yonge, 3 V. & B. 40 ; Ex parte Williamson, 2 Ves. 252. 
 
 ' But where money, the proceeds of trust goods, is kept separate and distinct, 
 as where it is deposited in bank, in the trustee's name, it will not pass to his as- 
 signees. Kip V. Bank of New York, 10 Johns. R. 65. 
 
INSOLVENCY OF TRUSTEES. 779 
 
 claim may also be included in the proof.(c) But where the demand 
 against the trustee is founded on a breach of trust, and the extent of 
 his liability has not been determined by the decree of the court, and 
 d fortiori if the commission of any breach of trust, and the existence 
 of any liability at all be still uncertain, there will then be no exist- 
 ing debt, which can be proved under the bankruptcy or insolvency, 
 or discharged by the certificate, but the cestui que trusts may still 
 prosecute and establish their claim against him by any subsequent 
 proceedings, notwithstanding his certificate or discharge, (ci)^ 
 
 Upon the bankruptcy of a trustee, who is indebted to the trust 
 estate, the debt may be proved by any one or more of the cestui 
 que trusts ;{e) or upon their petition, the court will make an order 
 for the appointment of a new trustee, who will be at liberty to go in 
 and prove for the amount due from the bankrupt's estate. (/) And 
 in some cases the court, without ordering a new trustee, will appoint 
 a person to prove on behalf of the cestui que trusts, the costs of the 
 appearance of the assignees to be paid out of the bankrupt's estate. (^f) 
 So the father of infant cestui que trusts has been allowed to make 
 the proof upon obtaining an order of the court ;{h) and on one occa- 
 sion the court directed that the son of the cestui que trust might 
 prove for the amount, retaining the dividends until further order. (i) 
 
 Where a petition is presented by cestui que trusts, or by the 
 bankrupt trustee himself, for leave to prove against the estate for 
 the amount of a trust fund, the petitioners will not be liable to pay 
 to the assignees their costs of the petition. (A;) And on the other 
 hand, a bankrupt trustee, who has been guilty of a breach of trust, 
 will not be entitled to his costs of appearance on a similar petition 
 by the cestui que trusts for leave to prove against his estate.(^) 
 
 In some cases the bankrupt himself has been allowed to prove 
 
 (c) Bick V. Motley, 2 M. & K. 312 ; N. S., Bank. 16 ; Ex parte Vine, 1 Deac. 
 
 Moons V. De Barnales, 1 Russ. 301. & Ch. 357. 
 
 (t/) Buckeridge v. Glasse, Cr. & Ph. {h) Ex parte Heaton, Bnck. 386. 
 
 126. (i) Ex parte Vine, 1 Deac. & Ch. 
 
 (e) Ex parte Shakeshaft, 3 Bro. C. C. 357. 
 
 197; Ex parte Fairfield, 1 Gl. & J. 221; (k) Ex parte Heald, 12 Law Journ. 
 
 Ex parte Vine, 1 Deac. & Ch. 357 ; Ex N. S., Bankr. 37 ; Ex parte Snowlton, 
 
 parte Beilby, 1 Gl. & J. 175. Id. 
 
 (/) See Ex parte Saunders, 2 Gl. & (Z) Ex parte Harris, U Law Journ. 
 
 J. 132; Ex parte Inkersole, Id. 230. N. S., Bank. 16. 
 
 ig) Ex parte Harris, 11 Law Journ. 
 
 ' Where an executor improperly pays over to the father of infant legatees, 
 their legacies, who invests them and thereby makes large profits; the cestui que 
 trusts having the right to elect between the principal and interest, and the benefit 
 of the investments, are entitled to prove against the father's estate, and the 
 amount of benefit is to be ascertained by the Commissioner : Ex parte Montefiore 
 DeGex. Bank. R. 171. ' 
 
780 OF THE BANKRUPTCY AND 
 
 against his own estate for a debt due to himself as trustee.(?n) But 
 an order must be obtained to sanction that course ;(w) and the court 
 will guard against the possibility of any misapplication of the divi- 
 dends, by ordering them to be paid into court,(o) or to the credit of 
 the cause, if any be pending, for the administration of the assets.f ») 
 P^^„ -. *Where two co-trustees are both implicated in a breach of 
 '- -* trust, by having joined in a transfer of the trust fund to one 
 of them, by whom it has been lost, there is a joint and several debt, 
 and the cestui que trusts may prove for the whole . amount against 
 the estate of the trustee who joined in the transfer, without having 
 recourse first to the estate of the trustee by whom the fund was 
 received and wasted, although his estate was primarily liable •,(q) or 
 the proof may be made against both estates. (r) And if one of two 
 trustees misapply the trust fund, and become bankrupt, an order 
 may be obtained by the cestui que trust to prove for the amount 
 against his estate, although the other trustee is solvent.(s) 
 
 Again, where the trust fund is misapplied by one of several co- 
 trustees, without the concurrence of the rest, and that one becomes 
 bankrupt, the solvent trustees may prove for the amount against the 
 estate of the defaulting trustee. (<) But if the co-trustees have not 
 acted, or accepted the trust, the court, on the petition of the cestui 
 que trusts, will appoint some other person to prove.(M) And if one 
 or more of several co-trustees have been compelled to make good to 
 the cestui que trusts the amount of the trust fund which had been 
 appropriated or otherwise misapplied by their bankrupt co-trustee, 
 they will be entitled to prove for the amount against the bankrupt's 
 estate, (a;) 
 
 It may be observed, that where a trustee, who is indebted to the 
 trust estate, is made a defendant in a suit for the administration of 
 the estate, and he afterwards becomes bankrupt or insolvent, he will 
 notwithstanding be entitled to his costs incurred subsequently to the 
 bankruptcy or insolvency, to be paid to him out of the trust estate, 
 
 (m) Ex parte Snowlton, 12 Law (5) Ex parte Shakeshaft, 3 Bro. C. 
 
 Journ. N. S., Bank. 37; Ex parte Rich- C. 197. 
 
 ardson, 3 Mad. 138; Ex parte Watson, (r) Keble v. Thompson, 3 Bro. C.C. 
 
 2V. &B. 414; Ex parte Atkins, Buck. 111. 
 
 479; sed vide Ex parte Moody, 2 Rose, (s) Ex parte Beilby, ] Gl. & J. 175. 
 
 413. It) Ex parte J. Shakeshaft, 3 Bro. C. 
 
 (n) Ex parte Shaw, 1 Gl. & J. 127, C. 198; Ex parte Beaumont. 1 Deao. & 
 
 see 163; Ex parte Collindon, 1 Mont. Ch. 360; Ex parte Stettel, 1 M. & Cr. 
 
 & Ch. 156; Ex parte Thring, 1 M. & 165. 
 
 Cr. 75. (u) Ex parte Harris, 11 Law Journ. 
 
 (0) Ex parte Leake, 2 Bro. C. C. N. S., Bank. 16. 
 
 596; Ex parte Brooks, Cook. 163. (a;) Lincoln v. Wright, 4 Beav. 427. 
 
 (p) £x parte Colman, 2 Deac. & Ch. 
 584. 
 
INSOLVENCY OF TRUSTEES. 781 
 
 although the costs incurred hefore he became bankrupt or insolvent 
 will be°set off against the debt: for the previous debt is extinguished 
 bj the bankruptcy or insolvency, while the right to receive his costs 
 remains. (?/) 
 
 A trustee, who carries on any trade with the trust assets for the 
 benefit of the cestui que trusts, will be responsible to the creditors, 
 not only to the extent of the trust assets, but also with the whole of 
 his own property, and he may be made bankrupt, and proceeded 
 against in the same manner as any other trader.(2) And it is imma- 
 terial, that the trade is carried on by him in consequence of an ex- 
 press direction in the trust instrument ; although the trust property 
 will doubtless be primarily liable to the creditors, and will be first 
 applied as far as it will go in discharge of the liabilities.(a)' Where 
 the amount of the trust funds to be employed in trade is expressly 
 fixed by the author of the trust, it will be a breach of trust in the 
 r trustees to employ any further portion of the funds in the business, 
 and neither the trustees nor their creditors, in case of bankruptcy, 
 can enforce any claim upon the trust estate beyond the prescribed 
 amount. (6) 
 
 *In the present state of the law on this point, no trustee r+roi-i 
 could be advised, under any circumstances, to undertake the 
 responsibility of carrying on any trade or business in trust for others. 
 For by so doing, he adopts the same risks and liabilities as persons 
 who trade on their own account, while he can participate in none of 
 the profits ; and, as a matter of ordinary prudence, a trust for such 
 a purpose should unhesitatingly be declined. 
 
 There has already been occasion to consider the jurisdiction of the 
 court of review to appoint new trustees in the place of those be- 
 coming bankrupts, as well as the mode in which that jurisdiction will 
 be exercised, (c) 
 
 No power of appointing new trustees has been conferred by the 
 
 (y) Samuel v. Jones, 2 Hare, 246; (i) Ex parte Garland, 10 Ves. 110: 
 
 Gibbons v. Hawley, Id. n. Ex parte Richardson, 3 Mad. 1 57 ; 
 
 (z) Ex parte Garland, 10 Ves. 119; Thompson v. Andrews, 1 M. & K. 116: 
 
 Ex parte Richardson, 3 Mad. 157. [See Cutbush v. Cutbush, 1 Beav. 184. 
 
 Ex parte Butterfield. De Gex, 572.] (c) Ante, Pt. I., Div. III., Chap. I. 
 
 (n) Ex parte Garland, 10 Ves. 110, [See Ex parte Congreve, De Gex, 267 ; 
 
 1 19 ; Ex parte Richardson, 3 Mad. 138, Ex parte Cousen, Id. 451.] 
 157. 
 
 ' But in Ex parte Butterfield, De Gex, 572, where a particular sum was au- 
 thorized by a testator to be employed in his trade, to be carried on after his 
 death by his executrix, who subsequently took in partnership her son, and they 
 then became bankrupt, it was held by the Lord Chancellor, overruling a decision 
 of the Court of Review (Id. 319), that proof for the amount could not be made 
 by the cestui que trusts. 
 
782 OF THE DISABILITIES OF TRUSTEES. 
 
 legislature on the insolvent debtors' court in case of the insolvency 
 of trustees ; but, in such cases, a bill must be filed in the Court of 
 Chancery for the removal of the insolvent, and the appointment of 
 a new trustee in his place ; and the insolvency would unquestionably 
 be sufficient foundation for such an application, (c?) And in the mean 
 time, wherever the exigencies of the trust require it, a receiver will 
 be appointed, and an injunction granted, prohibiting the receipt of 
 the trust assets by the insolvent trustee. (e) A receiver has also been 
 appointed on the bankruptcy of an executor and trustee, and although 
 the testator, at the time of appointing him, knew that the commis- 
 sion had issued. (/) 
 
 Where one of three co-trustees becomes bankrupt after an order 
 of the court for payment of money to them, the proper course is, to 
 apply to the court to vary the order by directing the payment to be 
 made to the two solvent trustees only.(^) And in case of the bank- 
 ruptcy of a sole trustee, under similar circumstances, the appoint- 
 ment of a new trustee should first be procured, and an application 
 then made to the court to vary the order by directing the payment 
 to the new trustee. 
 
 [*535] *CHAPTER III. 
 
 OF THE DISABILITIES OF TRUSTEES. 
 
 It is one of the settled principles of courts of equity, that trus- 
 tees shall not take advantage of their situation to obtain any per- 
 sonal benefit to themselves at the expense of their cestui que trusts. 
 
 However, this rule does not extend to prevent a trustee from en- 
 joying any benefit or advantage which is expressly given to him by 
 the creator of the trust. And we shall see in a future chapter, that 
 a trustee may be entitled to charge for professional services, &c., 
 when duly authorized to do so. (a) 
 
 And trustees are, of course, entitled to legacies expressly given to 
 them by the testator. Although where the legacy is given to them 
 only as trustees, or as a remuneration for their trouble, &c., they 
 cannot claim it, if they do not accept the trust.(6) And it is im- 
 material that the trustee is prevented from acting by age or in- 
 firmity.(c) But if the legacy be given to the trustee personalis/, 
 
 (d) 3 Mad. 100. (6) Harrisoa v. Rowley, 4 Ves. 216; 
 
 (c) Mansfield v. Shaw, 3.Mad. 100. Stackpole v. Howell, 13 Ves. 421 ; Bead 
 
 (/) Langley i;. Hawk, 5 Mad. 44. v. Devaynes, 3 Bro. C. C. 95; Bixv. 
 
 Ig) Gage V. Watmough, 10 Law Reed, 1 S. & St. 239 ; Barber v. Barber, 
 
 Journ. N. S., Chanc. 234. 3 M. & Cr. 688 ; Pigot v. Green, 6 Sim. 
 
 (a) Vide post, Ch. [Allowances], p. 72; Calvert ■«. Sebbon, 4 Beav. 222. 
 
 575. (c) Hanbury v. Spooner, 5 Beav. 630. 
 
OF THE DISABILITIES OF TRUSTEES. 783 
 
 ■without regard to the office imposed on him, he will be entitled irre- 
 spectively of his acceptance of the office.(ci) And where a testator 
 appointed two trustees, and gave them lOOZ. each, " as a mark of his 
 respect for them," and afterwards made a codicil, appointing two 
 other trustees in the place of the first two, and by the codicil he also 
 gave lOOZ. to each of the substituted trustees, " as a mark of his re- 
 spect for them," the legacies to the first trustees were held not to be 
 revoked by implication by the codicil. (e) 
 
 The equitable disability of trustees to become the purchasers of 
 the trust estate, originates in the principle of the court just referred 
 to. And this disability is twofold— 1st, Where the trustee attempts 
 to purchase directly from Mmself—and 2dly, Where the purchase is 
 effected by contract or agreement between the trustee and the cestui 
 que trusts 
 
 In the first case, the disability is much more strictly enforced than 
 in the other. Indeed, it was laid down by Lord Erskine, with re- 
 gard to a trustee selling to himself, that " without any consideration 
 of fraud, or looking beyond the relation of the parties, that contract 
 is void."(/) 
 
 However, the authorities scarcely bear out that assertion in its 
 fullest extent •,{g) for such sales (though prima facie invalid), have 
 frequently *been supported in equity, where it has been r^cog-i 
 shown, that the fiduciary relation of the purchaser had ab- 
 solutely ceased previously to the purchase,(A) or that the purchase 
 was made with the full concurrence and consent of the persons bene- 
 ficially interested (who, in that case must, of course, have been com- 
 petent to give their assent). («') Or, where the cestui que trusts, by 
 their laches or acquiescence, have debarred themselves from their 
 right of questioning the transaction, (/c) A purchase by a trustee, 
 under the sanction of the court, is also necessarily excepted from the 
 operation of the general principle. (Z) But wherever one or more of 
 
 (d) Humberston v. Huraberston, 1 P. (fe) Ex parte Bennett, 10 Ves. 393 ; 
 Wms. 333 ; Cockerell v. Barber, 2 Russ. Ex parte Lacey, 6 Ves. 626 : Downes 
 585; Griffith v. Pruen, 11 Sim. 202; «. Grazebrook, 3 Mer. 208. [Balli).Ca- 
 Christian v. Devereaux, 12 Sim. 264. rew, 13 Pick. 28 ; De Bevoise v. Sand- 
 
 (e) Burgess v. Burgess, 1 Coll. N. C. ford, 1 Hoff. Ch. 192.] 
 
 C. 367. (i) Downes v. Grazebrook, 3 Mer. 
 
 (/) In Morse v. Royal, 12 Ves. 372. 208; Randall v. Errington, 10 Ves. 428. 
 
 [See Chronister v. Bushey, 7 W. & S. [See Worthy v. Johnson, 8 Geo. 236 ; 
 
 152; McConnell v. Gibson, 12 lUin. ante, 169, note.] 
 
 128; Lewis v. Hillman, 3 H. L. Cas. (Jc) Campbell v. Walker, 5 Ves. 678. 
 
 628.] [See ante, 1.59, note; 168, note.] 
 
 (g-) See Ex parte Lacey, 6 Ves. 625 ; {I) See Campbell v. Walker, 5 Ves. 
 
 Downes v. Grazebrook, 3 Mer. 208. 681,2. [See Michoud ■«. Girod, 4 How. 
 
 [See ante, 159, note.] U. S. 555.] 
 
 ' See ante, 158, 159, notes. 
 
784 OP THE DISABILITIES OP TRUSTEES. 
 
 these corroborative circumstances cannot be established, a purchase 
 of this nature, however fair, open, and honest in itself, will invariably 
 be set aside in equity on a bill filed for that purpose by the cestui 
 que trusts.(m) And it is immaterial that the purchase is made by 
 the trustee at a public sale by auction, (m) or in the name of another 
 person as his agent.(o)^ Moreover, it is unnecessary for the cestui 
 que trust to show, that the trustee has obtained any profit or advan- 
 tage by the purchase,(p) although that would, of course, be an ad- 
 ditional reason for the interference of the court against the trustee, 
 who would be decreed to account for the profits thus made.(g') 
 
 It rests with the trustee, who relies upon any corroborative cir- 
 cumstances in support of his purchase, to prove those facts. And 
 even where such circumstances are established in evidence, the court 
 will look into the whole transaction with infinite and the most guarded 
 jealousy, for the law supposes the trustee to have acquired all the 
 know]e<lge respecting the trust estate, which a trustee may acquire, 
 and which may be very useful to him, but the communication of 
 which to the cestui que trust, the court can never be sure he has 
 miide.(/) 
 
 On the other hand, a purchase of this nature, though voidable at 
 the option of the cestui que trusts, will be enforced against the trus- 
 tee, if that course be most for the benefit of the trust estate. And 
 accordingly, the decree in these cases usually directs the estate to be 
 put up for sale again, at the price given by the trustee ; and if more 
 be bid, the additional price will be for the benefit of the trust 
 
 (!?i) Campbell v. Walker, 5 Ves. 678 ; (o) Whelpdale v. Cbokson, 1 Ves. 9 ; 
 
 Ex parte Lacey, 6 Ves. 625; Lister v. Campbell v. Walker, 5 Ves. 678; 13 
 
 Lister, lb. 631 ; Downes ti. Grazebrook, Ves. 601; Downes v. Grazebrook, 3 
 
 3 Mer. 200. [Ante, 158, 159, notes.] Mer. 200; Randall v. Errington, 10 Ves. 
 
 (n) Campbell v. Walker, 5 Ves. 678 ; 423, 
 
 Lister v. Lister, 6 Ves. 631: Sanderson (p) E.t parte James, 8 Ves. 348; Ex 
 
 V. Walker, 13 Ves. 601; Downes v. parte Bennett, 10 Ves. 393; Ex parte 
 
 Grazebrook, 3 Mer. 200 ; [Beeson v. Lacey, 6 Ves. 627. 
 
 Beeson, 9 Barr, 279; Bostwick v. At- (g) Foxti. Mackreth, 2 Bro. C. C. 400; 
 
 kins, 3 Comst. 53; Campbell v. Penn. Whichcote v. Lawrence, 3 Ves. 740. 
 
 Ins. Co., 2 Whart. 53 ; Michoud v. Gi- (r) Ex parte Lacey, 6 Ves. 226; Ex 
 
 rod, 4 How. U. S. 557.] parte Bennett, 10 Ves. 394; [post, note 
 
 ' Davoue v. Fanning, 2 J. C. R. 252 ; Hawley v. Cramer, 7 Cow. 717 ; Hunt v. 
 Barr, 2 Dev. Eq. 292; Paull v. Squibb, 12 Penn. St. 296 ; Buckler v. Lafferty, 
 2 Rob. Va. 394; Michoud v. Girod, 4 How. 553; Lewis v. Hillman, 3 H. L. 
 Cas. 629. But in Beeson v. Beeson, 9 Barr, 280, it was held, that a purchase 
 by the trustee, through a secret agent, does not, of itself, render the sale abso- 
 lutely void; but that it did so only where there was actual fraud, as where it 
 was used as a means of deceiving or misleading the cestui que trust. 
 
OF THE DISABILITIES OP TRUSTEES. 785 
 
 estate, but if there be no advance, the trustee will be held to his bar- 
 gain.(s) 
 
 A person who has been named a trustee for sale in an instrument, 
 but who has never accepted or acted in the trust, is not a trustee ; 
 and consequently he will not be disabled from purchasing the trust 
 property.(f) 
 
 *The same principles apply, although not with quite the|-^roiT-i 
 same stringency, to contracts between the trustee and his 
 cestui que trust for the purchase of the trust estate.'' 
 
 In Coles V. Treco thick, (m) Lord Eldon said : " I agree the cestui 
 que trust may deal with his trustee, so that the trustee may become 
 the purchaser of the estate. But though permitted, it is a transac- 
 tion of great delicacy, and which the court will watch with the utmost 
 diligence : so much, that it is very hazardous for a trustee to engage 
 in such a transaction." And Again, " a trustee may purchase from 
 the cestui que trust, provided there is a distinct and clear contract, 
 ascertained to be such after a jealous and scrupulous examination of 
 all the circumstances, that the cestui que trust intended the trustee 
 should buy; and there is no fraud, no concealment, no advantage 
 taken by the trustee of information acquired by him in the character 
 of trustee." But " it is a difficult case to make out, whenever it is 
 contended that the exception prevails. "(a;) 
 
 Therefore, in all cases of purchases by trustees from their cestui 
 que trusts, where the equity is not barred by acquiescence or con- 
 firmation, the court will carefully inquire into and sift all the circum- 
 stances, in order to ascertain the perfect fairness and propriety of 
 the transaction ; and it will rest with the trustee to establish in evi- 
 dence, that there was such, a bona fide contract between them, as 
 according to the rule just referred to, will sustain the purchase in a 
 court of equity. (y) The court, if satisfied as to this evidence, will 
 support the transaction. (2) But it is almost needless to add, that if 
 any unfair advantage has been taken by the trustee, by withholding 
 
 (i) Ex parte Reynoler, 5 Ves. 707; Royal, 12 Ves. 373; Ayliff «. Murray, 
 
 Ex parte Hughes, 6 Ves. 617; Ex parte 2 Atk. 59. [Boyd v. Hawkins, 2 Dev. 
 
 Lacey,Ib. 630; Lister t). Lister, lb. 631; Eq. 195, 329; Schwartz v. Wendell, 
 
 Sanderson i>. Walker, 13 Ves. 601. [Mc- Walker, Ch. 267; Farr u. Farr, 1 Hill's 
 
 Clure 1;. Miller, 1 Barb. Ch. 107; Thorp Eq. 390; Stuart v. Kissam, 2 Barb. S. 
 
 V. McCuUum, 1 Gilm. 624 ; Ex parte C. 494 ; but see S. C. 11 Barb. S. C. 271 ; 
 
 Wiggin, 1 Hill's Eq. 354; Pitt v. Pet- Allen v. Bryant, 7 Ired. Eq. 276.] 
 
 way, 12 Ired. R. 69.] (y) See Hunter v. Atkins, 3 M. & K. 
 
 (0 Chambers v. Waters, 3 Sim. 42 ; 135. 
 
 Stacey v. Elph, 1 M. &. K. 195. (z) Coles v. Trecothiok, 9 Ves. 234 ; 
 
 («) 9 Ves. 244. Clarke v. Smith, 2 Ed. 134; Morse v. 
 
 Ix) 9 Ves. 246, 7; and see Morse v. Royal, 12 Ves. 355. 
 
 ' See ante, 156, 159, and notes. 
 50 
 
786 OF THE DISABILITIES OF TRUSTEES. 
 
 information, or other fraudulent dealing, the purchase mil be at once 
 set aside.(a) And mere inadequacy of price will go a vast way in the 
 mind of the court, to constitute such fraud, (6) though the purchase 
 will not necessarily be set aside on that account alone, (c) And it is 
 essential to the validity of such a purchase, that the cestui que trust 
 should be made aware, that he is dealing with his trustee, as the 
 knowledge of that fact might put him more on his guard ; and on this 
 ground, where the trustee purchased and took the conveyance in the 
 name of a third person, without the knowledge of the cestui que trust, 
 the conveyance was set aside after a lapse of several years.(cZ) 
 
 For the same reason, a purchase by a trustee of an estate put up 
 to public sale by the cestui que trust, might not be so easily sup- 
 ported, as a sale by private contract between them, where the cestui 
 que trust is not distinctly informed of the intention of his trustee to 
 become a bidder at the sale.(e) 
 
 The incapacity of trustees to purchase proceeds on the facilities 
 which their situation gives them, of acquiring exclusive advantages 
 and information ; consequently the same principle does not apply to' 
 P^roo-imere dry trustees — *such as those for preserving contingent 
 ^ remainders — who have practically no interest or power with 
 
 regard to the trust estate. (/)^ 
 
 On this ground also, where the cestui que trust has taken upon 
 himself the conduct of all the preliminary proceedings requisite for 
 the sale, such as the surveys, the mode and conditions of sale, the 
 plans, the choice of the auctioneer, &c. ; and the trustee has not been 
 in a situation to acquire any exclusive information respecting the 
 property, the court will deal with the contract, as if made between 
 two indifferent persons putting each oi\ev at arms' length, and will 
 give effect to the sale, though made for an inadequate price.(g') 
 
 It is almost superfluous to add, that the rule of equity, interdicting 
 
 (a) Heme u. Meeres, 1 Vern. 465; (tZ) Randall D.Errington, 10 Ves. 423. 
 
 Fox V. Mackreth, 2 Bro. C. C. 400; (e) See Att.-Gen. v. Lord Dudley, 
 
 Scott V. Davis, M. & Cr. 87. Coop. 146. 
 
 (6) Morse v. Royal, 12 Ves. 373. (/) Parkes v. White, 11 Ves. 226; 
 
 [Pugh V. Bell, 1 J. J. Marsh. 406.] and see Nayler v. Winch, 1 S. & St. 567. 
 
 (c) Coles V. Trecothiok, 9 Ves. 234. (g-) Coles v. Trecothick, 9 Ves. 248. 
 
 «' "^ ' 
 
 ' So of a purchase by a mortgagee : Iddings v. Bruen, 4 Sandf. Ch. 223 ; Knight 
 V. Majoribanks, 2 Mac. & G. 10 ; 2 Hall & Twells, 308 ; Murdock's Case, 2 
 Bland, 461; otherwise if there be a power of sale. Waters v. Givens, 11 CI. & 
 F. 684. So a devisee of land subject to a legacy, is not a trustee, to prevent 
 him from purchasing it in, at a profit : Powell v. Murray, 2 Edw. Ch. 636. And 
 in general, where several heirs or devisees are turned into trustees, by implica- 
 tion, but without any notice, constructive or actual, of the trust, any one of them 
 may become a bona fide purchaser of the shares of his co-heirs or co-devisees 
 so as to hold the same discharged of the trust. Giddings v. Eastman, 5 Paige, 561. 
 
OF THE DISABILITIES OF TRUSTEES. 787 
 
 the purchase of the trust estate by trustees, applies as much to one 
 of several trustees as to a sole trustee.(^) 
 
 In all cases of this description, whether the purchase be made by 
 the trustee from himself, or by contract with his cestui que trust, the 
 right to relief may be barred by the confirmation or acquiescence of 
 the cestui que trust. 
 
 Where the person, beneficially entitled, is sui Juris, and has know- 
 ledge of the fraud committed against him, a purchase by the trustee 
 may unquestionably be supported by a subsequent confirmation. (i) 
 But, it has been said by Lord Eldon, that where the original fraud 
 is clearly established, the defence of a confirmation will be watched 
 with the utmost strictness, and will be allowed to stand only upon 
 the clearest evidence, as an act done with all the deliberation, that 
 ought to attend a transaction, the effect of which is to ratify that, 
 which in justice ought never to have taken place. (i)* 
 
 Again, the application for relief must be made within a reasonable 
 time ; and the court will refuse to set aside a purchase by a trustee, 
 in which the cestui que trusts have acquiesced for any considerable 
 period. (?) *However, the nature and effect of acquiescence ^^£39-1 
 and laches as a bar to relief in equity have already been con- L -■ 
 sidered, and need not again be discussed.(TO)^ 
 
 Where it is determined that a purchase by a trustee cannot stand, 
 the cestui que trusts will be entitled to have the property reconveyed 
 to them by the trustee, or by any purchaser from him with notice of 
 the trnst.(K) This relief will be granted on the terms of the cestui 
 que trusts repaying to the trustee the amount of the purchase-money 
 paid by him, together with interest at four per cent.,(o) while the 
 trustee, or the purchaser with notice, will have to account to the cestui 
 que trusts for the rents and profits of the estate :(p) and if he has 
 
 (h) Whichcote v. Lawrence, 3 Ves. kenzie, 8 Bro. P. C. 42; Lord Hard- 
 
 740. wicke v. Vernon, 4 Ves. 411 ; Ex parte 
 
 (t) Clarke v. Swaile, 2 Ed. 134; James, 8 Ves. 351; Ex parte Bennett, 
 
 Morse v. Royal, 12 Ves. 373, 4; Roche 10 Ves. 400 ; Att.-Gen. v. Dudley, Coop. 
 
 V. O'Brien, 1 Ball & B. 353. 146 ; Punbar v. Tredennick, 2 Ball & B. 
 
 (ifc) Morse v. Royal, 12 Ves. 373, 4; 304. [See ante, 164, notes.] 
 
 see Carpenter v. Heriot, 1 Ed. 338. (0) Whelpdale v. Cookson, 5 Ves. 
 
 (0 Campbell v. Walker, 5 Ves. 680 ; 682, stated ; Hall v. Hallett, 1 Cox, 134, 
 
 Parkes v. White, 11 Ves. 221 ; Gregory 139 ; Ex parte James, 8 Ves. 351 ; Wat- 
 
 V. Gregory, Coop. 201; Chalmer ?;. son ^. Toone, 6 Mad. 153. 
 
 Bradley, 1 J. & W. 59 ; Morse v. Royal, (p) Ex parte Lacey, 6 Ves. 630 ; Ex 
 
 12 Ves. 374. parte James, 9 Ves. 351 ; Watson v. 
 
 (m) Ante, p. 168, n; Toone, 6 Mad. 153. 
 
 (n) York Biftldings Company 1). Mao- 
 
 ' See ante, 159, notes. ' See ante, 159, note; 168, 169, notes. 
 
788 OF THE DISABILITIES OF TEUSTEBS. 
 
 been in actual occupation of the property, lie will be also charged 
 with an occupation rent.(g') 
 
 If the trustee have expended money in substantial repairs, and 
 improvements of the property, he will be allowed the amount, which 
 will be added to the purchase-money.(r)^ And if, on the contrary, 
 the property has been deteriorated in value through the act of the 
 trustee, he will be charged with the loss, which will be deducted 
 from the purchase-money.(s) It seems, that if there has been actual 
 fraud on the part of the trustee in the acquisition of the estate, he 
 will be allowed any sums expended for repairs, but not for mere im- 
 provements.[t) 
 
 Although the decree is against the trustee, he will not necessarily 
 be fixed with the costs of the suit, where he has been guilty of no 
 improper conduct. (m) Although, if the cestui que trusts be infants, 
 the trustee will invariably be charged with the costs, for the pur- 
 chase by him, under such circumstances, will be regarded as an im- 
 proper dereliction of duty, (a;) The delay in filing the bill may also 
 be material in considering the question of costs.(?/) 
 
 A lease of the trust estate, taken or renewed by a trustee, comes 
 within the same rules as a purchase by him, more especially if the 
 lease be a beneficial one, for that is equivalent to a purchase.(2)^ 
 
 (5) Ex parte James, 8 Ves. 351. (2) Ker v. Lord Dungannon, 1 Dr. & 
 
 (r) York Buildings Company v. W. 509, 541 ; Killick v. Flexney, 4 Bro. 
 
 Mackenzie, 8 Bro. P. C. 42; Canipbell C. C. 161; Parker v. Brooke, 9 Ves. 
 
 V.Walker, 5 Ves. 682; Ex parte Hughes, 583 ; James «. Dean, 11 Ves. 392; 15 
 
 6 Ves. 624; Ex parte James, 8 Ves. Ves. 236; Griffin v. Griffin, 1 Sch. & 
 
 352; Ex parte Bennett, 15 Ves. 400; Lef. 352; Ex parte Hughes, 6 Ves. 617 
 
 Robinson v. Ridley, 6 Mad. 2; [Pratt Att.-Gen. v. Clarendon, 17 Ves. 500 
 
 V. Thornton, 28 Maine, 355; Beck v. [Davoue v. Fanning, 2 J. C. R. 258 
 
 Uhricks, 16 Penn. St. R. 499.] Holridge v. Gillespie, Id. 30; Re Hea- 
 
 is) Ex parte Bennett, 10 Ves. 401. ger's Executors, 15 S. & R. 65; Gal- 
 
 It) Baughi). Price, 1 Wils. 320; see hraith v. Elder, 8 Watts, 94; Fisk v. 
 
 Kenney v. Browne, 3 Ridg. 518. [Mc- Surbet, 6 Watts & S. 31; Wallington's 
 
 Kennan v. Pry, 6 Watts, 138.] Est., 1 Ashm. 310 ; Husoii v. Wallace, 
 
 (u) Downes v. Grazebrook, 3 Mer. 1 Rich. Eq. 7 ; McLanachan v. Hender- 
 
 209. where the trustee received hiscosts. son, 2 A. K. MarsTi. 388 ;] vide supra. 
 
 {x) Saunders v. Walker, 13 Ves. 601. p. 438. 
 
 ly) Att.-Gen. v. Dudley, Coop. 148 ; 
 ante, p. 169 ; post, p. 564, [Co.sts.] 
 
 ' That the trustee is entitled to reimbursement of the purchase-money, &o., paid 
 by him, see Davoue v. Fanning, 2 J. C. R. 252 ; Ward v. Smith, 3 Sandf. Ch. 592; 
 Quackenbush v. Leonard, 9 Paige, 344; McLanachan v. Henderson, 2 A. K. 
 Marsh. 388 ; Matthews v. Dragaud, 3 Desaus. 25; Buckler v. Lafferty, 2 Rob. Va. 
 294; Scott I). Freeland, 7 Sm. & M. 410; note to 1 Lead. Cas. Eq. 145, 1 Am. Ed. 
 But if there be actual fraud, it is otherwise: McKennan v. Pry, 6 Watts, 138. 
 
 * On analogous grounds, it is held in equity, that whatever acts are done by 
 trustees in regard to the trust property, shall be deemed to have been done for 
 the benefit of the cestui que trust, and not for the benefit of the trustee. Davoue 
 
OS THE DISABILITIES OF TRUSTEES. 789 
 
 As a general rule, a trustee cannot act as the receiver or consignee 
 of the trust estate with a salary. And there are two principal rea- 
 sons for this rule : 1st, That his holding that situation would be in- 
 consistent with the duty of a trustee, who ought to check and con- 
 trol the receiver in his management of the estate, and 2d, That a 
 trustee is bound to give his *services for the benefit of the |-^r^f^-| 
 trust estate without any emolument.(a) And the same rule ■- -' 
 applies to one of several trustees.(6) 
 
 However where there are any special circumstances recommend- 
 ing the appointment of the trustee as receiver, as where from his 
 knowledge and experience it is for the benefit of the trust to secure his 
 
 (a) Anon. 3 Ves. 515; D-Jolland, Morisonv. Morison, 4 M. & Cr. 216. 
 
 8 Ves. 72; Sykes v. Hastings, 11 Ves. [But see post, p. 574, note.] 
 363 ; Sutton v. Jones, 15 Ves. 584; see (6) v. JoUand, 8 Ves. 72. 
 
 V. Fanning, 2 Johns. Ch. R. 252; 4 Kent's Com. 306, 307, 3d edit.; [Sparhawk 
 V. Allen, 1 Foster, N. H. 9; Huson v. Wallace, 1 Rich. Eq. 1 ; Beck v. Uhrick, 16 
 Penn. St. 503 ; Paff v. Kinney, 1 Bradf. N. Y. 9 ; Myers v. Myers, 2 MoCord's 
 Ch. 214; Arnold v. Brown, 24 Pick. 89; Hallet v. Collins, 10 How. U. S. 182 ; 
 Napier v. Napier, 6 Geo. 409; Bethea v. MoColl, 5 Alab. 314 ; Butler v. Hicks, 
 11 Sm. & M. 73; Davis v. Wright, 2 Hill, S. C. 560; Voorhees v. Stoothoft, 6 
 Halst 145; Seager «). Wilson, 4 Watts & S. 501 ; Heager's Exrs., 15S.&.R.65; 
 Leisenring v. Black, 5 Wat)s, 303 ; Oeslager v. Fisher, 2 Barr, 407 ; Conger «. Ring, 
 11 Barb. S. C. 356. See Stuart v. Kissam, Id. 271 ; notes to Keach v. Sandford, 
 1 Lead. Cas. Eq. 55, 1st Am. ed.] If, therefore, the trustee makes any contract, 
 or does any act connected with the trust estate for his own benefit, he will, never- 
 •heless, be decreed responsible for all advantages to his cestui que trust, as upon 
 an implied trust. Thus, if a trustee should purchase a lien or mortgage on the 
 trust estate at a discount, he would not be allowed to avail himself of the diffe- 
 rence ; but the purchase would be held a trust for the benefit of the cestui que trust : 
 Green v. Winter, 1 Johns. Ch. R. 26 ; Van Horn v. Fonda, 5 Johns. Ch. R. 409 ; 
 Evertson v. Toppan, Id. 514 ; [Matthews v. Dragaud, 3 Desaus. 25 ; McLanachan 
 V. Henderson, 2 A. K. Marsh. 388 ; Butler v. Hicks, 1 1 Sm. & M. 75 ; Giddings v- 
 Eastman. 5 Paige, 561 ; Matter of Oakley, 2 Edw. Ch. 478 ; Irwin v. Harris, 6 
 Ired. Eq. 221; Strong o. Willis, 3 Florid. 124. A creditor, who afterwards be- 
 comes trustee, may, however, bring in an outstanding lien : Prevost v. Gratz, Pet. 
 C. C. R. 373 ; though, see Irwin v. Harris, 6 Ired. Eq. 221 ; and the trustee is not 
 incapacitated from lending money on mortgage for the benefit of the trust ; in 
 which he may set up the mortgage in an adverse proceeding by the cestui que 
 trust against himself: Att.-Gen. v. Hardy, 4 Eng. L. & Eq. 57.] So, if a trustee 
 should renew a lease of the trust estate, he would be accountable to his cestui 
 que trust for all profits derived therefrom. Holdridge v. Gillespie, 2 Johns. Ch. 
 R. 30 ; Wilson v. Troup, 2 Cowen's Rep. 195. The same principle will apply to 
 persons standing in other fiduciary relations to each other, such as agents and 
 sureties. See Story's Eq. Jur. 5 324, &c. The doctrine stated in this note, is 
 very thoroughly and learnedly asserted and maintained by Chancellor Kent in 
 Davoue v. Fanning, above cited, and his judgment in that case may be pro- 
 nounced to be one of the ablest and most important ever delivered by any tri- 
 bunal of Justice. See, also, the case of Delaraater's Estate, 1 Wharton's Ren 
 362.— T. ^ 
 
790 OF THE DISABILITIES OF TKTJSTEES. 
 
 services, the court has allowed the trustee to propose himself as the 
 receiver ; but even then this will only be allowed on the terms of 
 his consenting to act without emolument.(c) In a very recent case, 
 however, Sir K. Bruce, V. C, ordered a receiver of an infant's estate, 
 with liberty for either of the two trustees to offer himself, although 
 it does not appear, that there were any special circumstances re- 
 quiring the appointment of either of the trustees. According to the 
 report of the case, however, the attention of the court does not seem 
 to have been drawn to the objection against the appointment of a 
 trustee to such an o&ce.{d) This rule does not apply to a mere dry 
 trustee, such as one to preserve contingent remainders, (e) 
 
 According to the general rules of evidence, a trustee, being a plain- 
 tiff in a suit, cannot be examined as a witness for a co-plaintiff.[fy 
 But he may with his own consent be examined by a defendant, on 
 an order being obtained for that purpose. (^i) But a defendant trus- 
 tee, who has no personal interest in the event of the suit, is a com- 
 petent witness, and it is a motion of course to examine him as such.(^) 
 And in this respect there is a difference between trustees and exe- 
 cutors, who cannot be examined as witnesses in a cause relating to 
 their testator's estate.(/)' 
 
 And where the trustee has any interest in the event of the suit, — 
 as where there is some charge which he is interested in rebutting, 
 or any liability (however trivial), which depends on the nature of the 
 decree in the suit, — his evidence will not be received. (A)^ And for 
 
 (c) Hibbertt). Jenkins, 11 Ves. 363, Bromley, 12 East, 250; Phipps i;. Pit- 
 cited, cher, 6 Taunt. 220 ; see 1 Bali & B. 100, 
 
 (d) Tait V. Jenkins, 1 N. C. C. 492. 414. [Hawkins v. Hawkins, 2 Car. L. 
 
 (e) Sutton V. Jones, 15 Ves. 587. Rep. 627 ; Hodgeri). Mulliken, 1 Bland. 
 (/) Phillips^. Dukeof Buckinghann, 503; Neville u. Demarest, 1 Green Ch. 
 
 1 Vern. 230 ; v. Fitzgerald, 9 Mod. 82.] 
 
 330. (i) Croft v. Pike, 3 P. Wms. 182; 
 
 (g) Armiter v. Swanton, Ambl. 393. Fotherby v. Pate, 3 Atk. 604. 
 
 (ft) Man V. Ward, 2 Atk. 228; Goss (4) Frank v. Mainwaring, 2 Beav. 
 
 V. Tracey, 1 P. Wms. 290; Goodtitle v. 126; see Smith v. Duke of Chandos, 
 
 Welford, 1 Dougl. 140; Bettison v. Barn. 416. 
 
 • See ante, 277, and note; and Hardwicku. Hook, 8 Georgia, 354; Southard v. 
 Gushing, 11 B. Monr. 344. 
 
 2 See Cochran v. Cochran, 1 Yeates, 134; DehnSv. Turbitt, 3 Id. 157; Van- 
 sant V. Barleau, 1 Binn. 444; Hunt v. Moore, 2 Barr, 105; Osborne v. Black, 
 Spear's Eq. 431 ; Mclntyre v. Middleton, 1 Sra. & M. Ch. 91 ; Abbott v. Clark, 
 19 Verm. 444; Fort v. Gooding, 9 Barb. S. C. 371. But where an administra- 
 tor plaintiff releases his commissions, and is released from costs, and there is no 
 suggestion of the possibility of a devastavit, he is a competent witness, in Penn- 
 sylvania. Anderson v. Neff, 7 S. & R. 123; Kingi). Cloud, 7 Barr, 469. 
 
 ^ Donalds v. Plum, 8 Conn. 447. As to the necesshy of a release of commis- 
 sions, where such are allowed by law, see King v. Cloud, 7 Barr, 467. 
 
OF THE DISABILITIES OF TRUSTEES. 791 
 
 the same reason the testimony of a trustee's wife will be equally in- 
 admissible under similar circumstances.(Z) 
 
 The disability of trustees to delegate the ofiSce to another comes 
 also within the subject now under consideration. The administra- 
 tion of the trust is a matter of personal confidence, which it is a 
 breach of trust in the trustee to make over to a stranger, and the 
 original trustee will continue responsible for all the acts of the per- 
 son so substituted. (?w) And although trustees will be allowed to 
 employ a solicitor or agent, and to govern themselves by his advice 
 as to their conduct in the trust, yet they will not be justified in com- 
 mitting the entire management of the trust to *him.(n) And p^- .^-, 
 we have already seen, that even as between co-trustees the ^ ^ 
 sole and absolute administration of the trust must not be delegated 
 to one or more of the number, to the exclusion of the others.(o) 
 However, the employment of an agent for carrying out mere minis- 
 terial acts — such as the sale of the property, and purposes of that 
 nature — ^is not within this rule, for such acts are necessary to the 
 discharge of the trust ; and it will be sufficient, that the trustee re- 
 tains the supervision and control over the person so employed, (p) 
 Although, if the trustees sufi"er the attorney or agent to obtain and 
 keep possession of the trust property, or any part of it, and it is thus 
 lost, they will in general be responsible to the cestui que trusts for 
 the loss.(g') 
 
 From the observations of Sir L. Shadwell, V. C. E., in a recent 
 case,(r) it seems, that a devise by a trustee of his estate is equally a 
 delegation of trust, and as much a breach of trust, as a conveyance 
 or assignment inter vivos.^ In the course of his judgment his Honor 
 said, " And here I must enter my protest against the proposition, 
 which was stated in the course of the argument, that it is a benefi- 
 cial thing to devise an estate, which is vested in him in that charac- 
 ter. My opinion is, that it is not beneficial to the testator's estate, 
 that he should be allowed to dispose of it to whomsoever he may 
 think proper ; nor is it lawful for him to make any disposition of it. 
 He ought to permit it to descend ; for in so doing he acts in accor- 
 dance with the devise made to him. If he devises the estate, I am 
 
 (0 Frank v. Mainwaring, 2 Beav. 196; Ex parte Townsend, 1 Moll. 139; 
 
 126. Turner v. Comey, 5 Beav. 515. 
 
 (m) Chalmers v. Bradley, Ij. & W. (o) Ante, p. 309, [but see in note.] 
 
 68; Adams v. Clifton, 1 Euss. 297; (p) Ex parte Belchier, Amb. 219; 
 
 Wilkinson v. Parry, 4 Russ. 272 ; Hulrae Bacon v. Bacon, 5 Ves. 335 ; Clough v. 
 
 V. Hulme, 2 M. & K. 682. [See ante, Bond, 3 M. & Cr. 497. [See ante, p. 
 
 175.] 474, and note.] 
 
 («) Chambers v. Mlnchin, 7 Ves. (5) Ex parte Townsend, 1 Moll. 139. 
 
 (r) Cooke v. Crawford. 13 Sim. 97. 
 
 ' But see ante, p. 283, note (1). 
 
792 OF THE DISABILITIES OF TRUSTEES. 
 
 inclined to think, that the court, if it were urged to do so, -would 
 order the costs of getting the legal estate out of the devisee, to he 
 borne by the assets of the trustee. I see no substantial distinction 
 between a conveyance by act inter vivos and a devise, for the lat- 
 ter is nothing but a post-mortem conveyance : and if the one is un- 
 lawful, the other must be unlawful." In the case in which these 
 observations were made an estate was devised to three trustees, in 
 trust that they or the survivors or survivor of the " heirs" (without 
 adding "assigns") of such survivor should sell. The sole acting 
 trustee devised the estate to M. and N. upon the trusts affecting the 
 same, and the Vice-Chancellor held, that M. and N. could not exe- 
 cute the trust for sale, as it was not limited to the assigns of the 
 original trustees. It will be observed, that his Honor's observations, 
 which have been stated above, as to the general incapacity of trus- 
 tees to devise the trust estate, were not required for the decision of 
 the case, and are therefore clearly extrajudicial. It is singular that 
 the power of trustees to devise an estate held upon subsisting trusts 
 should never have been determined by a distinct judicial decision. 
 But in the absence of such an authority, the cases which have set- 
 tled that a general demise will pass a trust estate(s) would seem to be 
 strongly in favor of the existence of this power : unless indeed they 
 should be held to apply only to the devise of a mere dry legal estate, 
 and not to active and discretionary duties and powers. Moreover, 
 with great deference to his Honor's opinion, which within the writer's 
 knowledge is supported by *that of some most eminent mem- 
 '- -^ bers of the profession, it is conceived, that a distinction 
 might fairly be drawn between a delegation of a trust to take effect 
 in the trustee's lifetime, and one to take effect only after his death : 
 for by the trustee's death the trust must necessarily be transferred 
 to some one else ; and the argumentum ah inconvenienti, in case of 
 the infancy of the heir, might also be urged in favor of the power of 
 the trustee to devise, at all events where the trust is limited to the 
 assigns of the original trustee. A final decision on the point is un- 
 questionably most desirable, but in the mean time no trustee could be 
 advised to devise a still subsisting trust, nor could the devisee safely 
 act in its performance. 
 
 (s)ArHe, p. 283. 
 
OF SUITS BY TRUSTEES. 793 
 
 ^CHAPTER IV. [*543] 
 
 OF SUITS BY AND AGAINST TRUSTEES. 
 
 I. Of Suits and Actions by III. Of the Effect of Suits in- 
 Teustees [543]. stituted by or against 
 
 II. Of Suits AND Actions AGAINST Trustees [548]. 
 
 Trustees [545]. IV. Of Costs [551]. 
 
 I. OP SUITS AND ACTIONS BY TRUSTEES. 
 
 Trustees have an undoubted right to come to the court for its 
 assistance and protection in all cases of doubt or difficulty in the 
 administration of the trust ;{ay and the personal representatives of a 
 deceased trustee are entitled to the same privilege. (6) And so where 
 any legal proceedings have been commenced against trustees, they 
 are entitled to come to the court for its protection, and to obtain 
 directions as to the mode of defence, if any, to be adopted, and to 
 stay the proceedings against them in the mean time.(c) And if a 
 suit be pending between the parties at the time, the application may 
 be made by a petition in that suit.((^)^ 
 
 (a) See Curteis v. Candler, 6 Mad. (b) Greenwood v. Wakeford, 1 Beav. 
 
 123; Coventry v. Coventry, 1 Keen, 576. 
 
 758 ; Talbot v. Earl of Radnor, 3 M. & (c) Edgecombe v. Carpenter, 1 Beav. 
 
 K. 252 ; Hearn v. Wells, 1 Coll. N. C. C. 173. 
 
 323. (rf) 1 Beav. 171. 
 
 ' Bowerg v. Smith, 10 Paige, 193 : Lorillard v. Coster, 5 Paige, 172; Hawley^j. 
 James, Id. 318; Jones v. Stockett, 2 Bland, 409; Trotter v. Blocker, 6 Porter, 
 269; Diramook v. Bixby, 20 Pick. 374; see Harrison v. Eowan, 4 Wash. C. C. 
 202. The trustee, under such circumstances, is bound to give the court all the 
 information in his power : Trotter v. Blocker, ut supra. The court in sucli a suit 
 cannot merely declare the rights of the parties, but must direct an account and 
 inquiries : Brown v. Martyn, 2 J. & Lat. 333. The costs of the trustees in these 
 cases come out of the estate : Trotter v. Blocker, ut supra: Chase v. Lockerman, 
 1 1 Gill & J. 185 ; Rogers v. Ross, 4 J. C. R. 608. But in Rowland v. Morgan, 13 
 Jur. 23, it was said by Lord Cottenham, that this rule did not apply on appeal. 
 In a Suit for the construction of a will, the executors and trustees are the repre- 
 sentatives of parties not in esse: Lorillard v. Coster, 5 Paige, 172. 
 
 ^ See as to the mode of proceeding at present in England, the Trustees Relief 
 Acts, 10 & 11 Vict. c. 96, and 12 & 13 Vict. c. 74 (U Jurist, pt. ii. 355; 13 Id. 
 346), by which it is provided that trustees (or a majority of them, on application 
 to the court), may pay trust-moneys, or transfer stocks and securities, into the 
 Court of Chancery; and that the court may then make orders on petition without 
 bill, for the application of the trust-moneys, and the administration of the trust. 
 Under a provision in this act, general orders were issued by the Lord Chancellor, 
 June 10th, 1848, which may be found in 2 Phillips, xvii. See on these acts, 
 
794 OF SUITS BY TRUSTEES. 
 
 In order to sustain a suit by a trustee, it must be shown that he 
 has accepted the trust ; and the mere fact of a person's being named 
 as a trustee in articles for a settlement, will not give him a sufficient 
 interest to file a bill. However, it is not necessary that he should 
 have actually executed the trust deed ; and it will be sufficient to 
 show, either by letters, or by the acts of the parties, that the plain- 
 tiflf has been recognised as trustee, and has accepted the trust.(e) 
 
 As a general rule, a trustee cannot institute proceedings in equity 
 relating to the trust property, without making the whole of the cestui 
 que trusts parties.(/)* And where the existence of a doubtful claim 
 occasions the necessity of the suit, the person who is interested under 
 that claim must also be joined as a party.(5') 
 
 However, there are exceptions to this rule, — as where trustees 
 
 under a deed upon trust to sell and to apply the produce amongst 
 
 creditors or others, are empowered to give discharges to the pur- 
 
 r*5441 ''^^^^^s J — foi" such a provision will be treated as a declaration 
 
 by the author of the trust, that *the presence of the parties 
 
 (e) Cook V. Fryer, 1 Hare, 498, 504. Ch. Pr. 311; Morse v. Sadler, 1 Cox, 
 (/) Kirk V. Clark, Free. Ch. 275; 352; Bifield t). Taylor, 1 Beatt. 93. 
 
 Calverley v. Phelp, 6 Mad. 232; Doug- (g-) Talbot v. Earl of Radnor, 3 M. 
 
 las V. Horsfal, 2 S. & St. 184; 1 Dan. & K. 252. [But see Whelan i). Whelan, 
 
 a Cowen, 587.] 
 
 articles in the Jurist, vol. 11. pt. ii. 302; vol. 12, pt. ii. 249; vol. 14, pt. ii. 250; 
 and on their construction the following cases: Re Biggs, 11 Beav. 27; Re 
 Joseph's Will, 11 Beav. 56; Re Everett, 12 Beav. 485; Re Larimer, Id. 251; Re 
 Cawthorne, Id. 56; Re Money, 13 Beav. 109 ; Be Bloye's Trust, 1 Mao & G. 488; 
 3 H.L. Cas. 606; Re UpfuU's Trust, 3 Mao & Gord. 281: 9 Eng.L. & Eq. 10; Re 
 Wood's Setdement, 15 Sim. 469; Re Sharp's Trustees, Id. 470; Re Parry, 6 
 Hare, 306; Re Staples' Settlement, 13 Jur. 380; Re Bartholomew's Will, Id. 380; 
 Ex parte Fletcher, 12 Jur. 619; Ex parte Peart, Id. 610; Re Croyden's Trust, 14 
 Jur. 54 ; Re Ross's Trust, 1 Sim. N. S. 196 ; 2 Engl. L. & Eq. 151 ; Goode v. West, 
 7 L. & Eq. 285 ; Re Magawley's Trust, Id. 268 ; Re Masselin's Will, 8 Id. 641; 
 Re Knowles, 9 Id. 98; Re Spence, Id. 219; Re Dalton's Settlement, 10 Id. 101; 
 Re Hey's Will, 12 Id. 205 ; 9 Hare, 221 ; Re Waring, 12 Engl. L. & Eq. 351; Re 
 Fields' Settlement, 13 Id. U; Re Bayley's Trust, Id. 28; Ex parte Bradshaw, 15 
 Id. 421. As to the mode of proceeding by claim, recently introduced into Eng- 
 land, see the General Orders of April 22d, 1850, 14 Jurist, pt. ii. 143. 
 
 Trustees invested by an Act of the Legislature with a public duty, are compe- 
 tent to proceed in equity by bill to protect the franchise committed to them from 
 violation: Lucas v. McBlair, 12 G. & J. 1. 
 
 •Malin v. Malin, 2 J. C. R. 238; Fish v. Howland, 1 Paige, 20; Schenck v. 
 EUingwood, 3 Edw. Ch. 175; Helm v. Hardin, 2 B. Monr. 232; Stilwell v. 
 McNeely, 1 Green's Ch. 305; Willink v. Morris Canal, 3 Id. 377; Whelan v. 
 Whelan, 3 Cow. 531. It is, however, in the discretion the court to dispense 
 with the strict rule on this subject, where it would occasion great inconvenience 
 and expense: Willink v. Morris Canal Co., 3 Green. Ch. 377; and see Rule 
 xlviii. in Equity of the United States Courts, and Rule xlvi., in Pennsylvania. 
 
OF SUITS BY TRUSTEES. 795 
 
 beneficially interested shall not be necessary in a suit by the trus- 
 tees to enforce a sale.(^) (1) 
 
 And an important alteration has recently been made in the prac- 
 tice of the court on this point, where real estate is devised hy will to 
 trustees for sale. For the 30th of the general orders of August, 
 1841, declares, that in all suits concerning real estate, which is 
 vested in trustees by devise, and such trustees are competent to sell, 
 and give discharges for the proceeds of the sale, and for the rents 
 and profits, such trustees shall represent the persons beneficially 
 interested in the same manner as executors or administrators repre- 
 sent the persons beneficially interested in personal estate ; and in 
 such cases it shall not be necessary to make the persons beneficially 
 interested parties to the suit, although the court on the hearing may 
 order them to be made parties.(2)* 
 
 Previously to this order, all legatees, whose legacies were charged 
 on the land, and other persons taking a beneficial interest in the real 
 estate under a will, however numerous, must have been brought 
 before the court, as well as the devisees in trust ;(z) although a con- 
 trary doctrine has been countenanced by Lord Redesdale in his 
 Treatise on Pleading. (A;) 
 
 (A) Calverleyu. Phelps, 6 Mad. 232; (i) Morse v. Sadler, 1 Cox, 352; 1 
 see Wakeman v. Rudand, 8 Bro. P. C. Dan. Ch. Pr. 314. 
 145. [Vaa Vechten v. Terry, 2 J. C. R. (A) Mitf. PI. 174, 4th edit. 
 197; Swift V. Stebbins, 4 Stew. & Port. 
 447 ; see ante, 338, and note.] 
 
 (1) It may be observed, however, that this exception does not hold good where 
 the suit is for foreclosure, and not for a sale: and in that case the cestui que trusts 
 must be made parties. See Calverley v. Phelps, 6 Mad. 229 ; Osbourn v. Fallows, 
 1 R. & M. 741. 
 
 (2) It has been decided, that this order applies only in those cases where the 
 legal estate is vested in the devisees in trust. And wherever the legal estate is 
 outstanding, the old practice will still prevail, and the cestui que ti-usts, as well as 
 the persons who have legal interests, must be joined with the trustees as parties 
 to the suit respecting the estate. Turner v. Hind, ,12 Sim. 414. 
 
 And the order only applies where the trustees have an immediate and absolute 
 power of selling. Therefore, where the power was to sell with the consent of the 
 tenant for life, and that consent was not proved, the case was held not to be 
 within the order. Lloyd v. Smith, 12 Law Journ. N. S. Chano. 457. 
 
 Where the persons beneficially interested had been joined with the trustees as 
 parties to a suit, instituted before the making of the ZOth order of August, 1841, they 
 may properly be dismissed at the hearing. Tarbuck v. Greenall, 6 Beav. 358. 
 
 [Where the suit involves the administration of the estate and distribution of 
 the residue, the devisees in trust do not, under the order, sufficiently represent 
 the persons beneficially interested. Jones v. How, 7 Hare, 270. See Chamberlain 
 u.Thacker, I3Jur.785.] 
 
 ' The 47th Rule in Equity of the Supreme Court of Pennsylvania, and the 
 49th Rule in Equity of the Supreme Court of the United States, are to the same 
 effect. 
 
796 OF SUITS BY TRUSTEES. 
 
 Where the interest of the cestui que trusts is collateral to the rights 
 of the plaintiff trustee, and the defendant to the suit, it has been 
 decided, that the suit may be maintained without making them 
 parties, — as, where a bill is filed by one trustee against his co-trustee, 
 to compel him to replace the trust fund, which had been misapplied 
 or appropriated by him, the cestui que trusts are unnecessary 
 parties. (Z) And so where a suit was instituted by a trustee against 
 the cestui que trust for life, to compel the restitution of the trust 
 property, of which he had acquired possession, it was held that the 
 other cestui que trusts need not be joined as parties. (m)' 
 
 The trustees and cestui que trusts, having no conflicting interests, 
 may be joined together as co-plaintiffs in a suit. But this cannot be 
 done where the cestui que trusts have any adverse claim against the 
 l-^P .--.trustees; *and in that case, a bill so framed will be dismissed 
 '- -' with costs. (w) On one occasion, however, where in the course 
 of the suit it turned out that a question of this description was likely 
 to arise between the trustee and cestui que trusts, who were co- 
 plaintiffs in the suit, the court, on the motion of the cestui que trust, 
 allowed the frame of the suit to be altered by striking out the name 
 of the trustee as plaintiff, and making him a defendant, in order to 
 prevent any injury to the cestui que trusts.{o) 
 
 It has been already stated, that the trustee in whom the legal in- 
 terest in property is vested, is the proper person to bring any action 
 at law for asserting or defending the legal title. And we have seen 
 to what extent the interest of the cestui que trust will be taken no- 
 tice of by a court of law.(p) Where trustees sue at law for a breach 
 of covenant on behalf of their cestui que trusts, without any damage 
 to themselves, they will not be restricted to the recovery of mere 
 nominal damages.(g') 
 
 (Q Franco v. Franco, 3 Ves. 75 ; May (n) Jacob v. Lucas, 1 Beav. 426. [Gril- 
 
 V. Selby, 1 N. C. C. 235 ; 1 Dan. Ch. Pr. fith «. Van Haythusan, 4 Engl. L. & Eq. 
 
 312. [See Hallett v. Hallett, 2 Paige, 15; 27.] 
 
 Rowland v. Fish, 1 Paige, 20; Todd v. (o) Hall v. Lack, 2 N. C. C. 631. 
 
 Sterrett, 6 J. J. Marsh. 432; Brown v. Ip) Ante, pp. 274, 316, and notes. 
 
 Ricketts, 3 J. C. R. 553.] (g) Lethbridge v. Mytton, 2 B. & Ad. 
 
 (m) Bridget i;. Hames, 1 Coll. 72; see 772. 
 Robinson v. Evans, 7 Jur. 738. 
 
 ' Where a suit is instituted merely for the recovery of the trust fund, the cestui 
 que trusts are not necessary parties: Ferguson v. Applenhite, 10 Sm. & M. 301; 
 Sill V. Ketchum, Harr. Ch. 423; Morey i). Forsyth, Walk. Ch. 465; Horsley «;. 
 Fawcett, 11 Beav. 565; Sherman v. Burnham, 6 Barb. S. C. 414; Alexander v. 
 Cana, 1 De G. & Sin. 415; but their joinder is not, it seems, objectionable : Jen- 
 nings V. Davis, 6 Dana, 127. In a suit for partition, where the whole legal 
 estate of a share is in a trustee, it is not necessary to join the cestui que trusts. 
 
OP SUITS AGAINST TRUSTEES. 797 
 
 11.— OF SUITS AND ACTIONS AGAINST TRUSTEES. 
 
 A suit in equity may be brought against trustees either by strangers 
 or by the cestui que trusts. In suits by strangers, it will not be 
 sufficient, as a general rule, to make the trustees the only defendants, 
 but the cestui que trusts must also be brought before the court •,{r) 
 more especially where they are infants.(s) But the exceptions to this 
 rule in the case of suits by trustees as plaintiffs,{t) will also hold good 
 in the case of suits against them as defendants. And the 30th order 
 of August, 1841, which has already been stated and considered,(ti) 
 applies equally to suits by or against trustees. (a;)(l) 
 
 Although the trustees have no active duties to discharge in the 
 management of the trust estate, and although the question at issue 
 in the cause is to be fought principally by the cestui que trusts, the 
 trustees must, notwithstanding, be brought before the court as co- 
 defendants, in respect of the legal estate vested in them, and a suit 
 against the cestui que trusts only will be defective.(«/y And this rule 
 applies to new trustees, who have been duly appointed under a power 
 upon the death of the old trustees, pending a suit to which the old 
 trustees were parties ; and in such a case *the new trustees r*c^g-| 
 must be brought before the court by a supplemental bill.(z) 
 And so where there are two sets of trustees (one in this country, and 
 the other abroad), the foreign trustees must be made parties to a suit 
 
 (r) Whistlerv. Webb. Bunb. 53; Cal- (() Preceding section, p. 544. [See 
 
 verley v. Phelps, 6 Mad. 231 ; Osbourn Piatt v. Oliver, 2 McLean, 307.] 
 
 V. Fallows, 1 R.'& M. 741 ; Holland v. (tt) Ibid. 
 
 Baker, 3 Hare, 68 ; 1 Dan. Ch. Pr. 348; (x) Osborne v. Foreman, 2 Hare, 
 
 Calvert, Parlies, 207 ; Faithfull.i). Hunt, 656 ; 13 Law Joum. N. S. Chanc. 123. 
 
 3 Anst. 751 ; Pinkns v. Peters, 5 Beav. {y) Hobson v. Staneer, 9 Mod. 80 ; 
 
 253. [Caldwell v. Taggart, 4 Peters, Jones v. Jones, 3 Atk. 110; Dormer i). 
 
 202; Whelan-i). Whelan,3Cowen, 538; Fortescue, lb. 133; Bagg v. Forster, 1 
 
 Houghton w. Davis, 23 Maine, 27; Phil- Ch. Ca. 188 ; Att.-Gen. v. Green, 2 Bro. 
 
 lipsoni). Gatty, 6 Hare, 26; Story's Eq. C. C. 493; GilTord v. Hart, 1 Sch. & L. 
 
 Plead., ^ 207, &c.; see Mann v. Butler, 386 ; Bromley v. Holland, 7 Ves. 14 ; 
 
 2 Barb. Ch. 362,] Wood v. Williams, 4 Mad. 186. 
 
 (s) Orrok v. Binney, Jao. 523. (z) Att.-Gen. v. Forster, 2 Hare, 81. 
 
 (1) Under the 30lh order of August, 1841, trustees, by devise for the sale of 
 real estate, with the power of giving discharges, will represent all the persons 
 beneficially interested, not only in a suit brought by a claimant paramount to the 
 devise, but also in a suit by one of the parties claiming under the will : and that 
 even though the conduct of the trustees be impeached by the bill. Osborn v. 
 Foreman, 2 Hare, 656; S. C. Law Journ., N. S. Chanc. 123. 
 
 ' See Malin v. Malin, 2 J. C. R. 238 ; Cassidy v. McDaniel, 8 B. Monr. 519; 
 Fish V. Howland, 1 Paige, 20; Carter v. Jones, 5 Ired. Eq. 196; Bank N. A. v. 
 Pollock, 4 Edw. Ch. 315; Everett v. Winn, 1 Sm. & M. Ch. 67 ; McKinley v. Ir- 
 vine, 13 Alab. 681 ; see Story's Eq. Plead., \ 207, &c.; Allison v. Cookson, 2 Coll. 
 C. C. 52: Peppard v. Kelley, 2 J. & Lat. 558. 
 
798 OF SUITS AGAINST TRUSTEES. 
 
 respecting the trust, unless there is some sufficient reason to the con- 
 trary.(a) But where a mere trustee, having no other interest, can- 
 not be discovered, the 24th section of Sir Edward Sugden's Act (1 
 Will. IV. c. 60), empowers the court, on proof by affidavit that dili- 
 gent search and inquiry has been made after him, to hear the cause 
 and make a decree against the absent trustee, as if he had regularly 
 appeared.' 
 
 The onerous character of this rule of pleading, which required the 
 presence of the trustees in every case, has also been much alleviated 
 by the recent general orders of the court.(5) The 23d order of 
 August, 1841, enables a plaintiff to proceed against a trustee or other 
 formal party, against whom no direct relief is required, by serving 
 him with a copy of the bill, omitting the interrogating part, and by 
 praying (instead of the usual subpoena to appear and answer), that 
 the defendant, being served with a copy of the bill, may be bound 
 by the proceedings in the suit. By the 26th of the same orders, the 
 formal party may appear and answer in the usual course, if he so 
 please, but it will be on the penalty of paying the costs, unless the 
 court order otherwise. However, these orders do not apply where 
 any account, payment, conveyance, or other direct relief, is sought 
 against a defendant ; and it must frequently be a matter of very nice 
 discrimination, to determine who is such a formal party as to come 
 within the scope of the orders, (e)^ 
 
 (o) Weatherbyi). St. Giorgio, 2 Hare, (c) See Lloyd v. Lloyd, 1 N. C. ,C. 
 624. 181. 
 
 (i) Ord. Gen. August, 1841, XXIIL, 
 XXIV., XXV. 
 
 ' See ante, p. 192. 
 
 * See on these orders, generally, Salmon v. Green, 8 Beav. 457; Thomas u, 
 Selby, 9 Id. 194; Boreham v. Bignall, 4 Hare, 633 ; Buncombe v. Levy, Id. 232; , 
 Boyd V. Moyle, 2 Coll. C. C. 316 ; Anon., 1 De G. & Sm. 321 ; Lay v. Prinsep, 
 Id. 630; Knight v. Cawthorn, Id. 714: Smith v. Groves, 14 Sim. 603; Johnson v. 
 Tucker, 15 Id. 485; Mason v. Best, 16 Id. 429; Lerton v. Kingston, 2 Mac. & 
 Gord. 139; Vincent v. Watts, 3 Id. 240. Where all the parties named in a will 
 had died, and a bill was filed by one of the cestui que trusts against the others, the 
 heir of the last trustee, and certain persons who had been in possession of the 
 estate, praying for an account of the rent received by these persons, for the ap- 
 pointment of new trustees, and that the estates might be conveyed to them by 
 the heir of the last trustee, it was held, that the defendant cestui que trusts had 
 been rightly served with a copy of the bill under the above order, there being 
 nothing asked adversely to them. Johnson v. Tucker, 15 Sim. 485. 
 
 The correspondingrule in the United States Courts in Equity (liv.), and in Penn- 
 sylvania (liL), is as follows: " Where no account, payment, conveyance, or other 
 direct relief, is sought against a party to a suit, not being an infant, the party, 
 upon service of the subpcBna upon him, need not appear and answer the bill, 
 unless the plaintiff specially requires him so to do by the prayer of his bill; but 
 he may appear and answer at his option ; and if he does not appear and answer. 
 
OF SUITS AOAINST TRUSTEES. 799 
 
 On the other hand, in suits by cestui que trusts against strangers 
 respecting the trust estate, the rule of practice, requiring the pre- 
 sence of the trustees as parties, is equally imperative.(<i)(l) And 
 where all the cestui que trusts do not join as co-plaintiifs in a suit, 
 those, who are not plaintiffs, must be brought before the court as de- 
 fendants. Although it has been decided, that in the case of several 
 cestui que trusts, who are entitled to certain aliquot parts of an as- 
 certained trust fund, one of them may sue the trustees for his share 
 without joining the other cestui que trusts as parties to the suit.(e) 
 
 There has already been occasion to consider, how far a suit may 
 be brought by cestui que trusts against one or more of several 
 co-trustees for a breach of trust, without joining the others as par- 
 ties.{f) 
 
 The husband of a feme trustee is liable for his wife's conduct in 
 the administration of the trust, and may be sued in respect of that 
 liability. (^) And so the personal representatives of a deceased trus- 
 tee are accountable *and may be sued for any breach of trust r^c^ir-i 
 committed by their testator in his lifetime.(^) 
 
 A trustee who has never acted or otherwise accepted the trust, and 
 who has disclaimed, ought not to be made a party to a suit respecting 
 the trust property.(2y 
 
 But if a person named trustee in an instrument, have not dis- 
 claimed, he must be joined as a party, and on putting in his dis- 
 claimer, the bill may be dismissed against him. But in such a case, 
 he will have his costs only as between party and party, even though 
 he be continued a party till the hearing.(A) 
 
 However, there will be an exception to this rule, where the object 
 
 (d) Harrison v. Pryse, Barn. 325; (g-) Palmer v. Wakefield, 3 Beav. 
 Vandebende v. Livingston, 3 Swanst. 227. [See ante, 520, note («).] 
 
 625; Cooke v. Cooke,2Vern. 36; Att.- (Ji) Thayeti). Gould, 1 Atk. 615; see 
 
 Gen. V. Green, 2 Bro. C. C. 493"; Cope Greenwood v. Wakeford, 1 Beav. 576; 
 
 V. Parry, 2 J. & W. 538., [Neilson v. Wilkinson v. Parry, 4 Russ. 272, 275. 
 
 Churchill, 5 Dana, 341.] [Ante, 520, note.] 
 
 (e) Smith 1). Snow, 3 Mad. 10 ; Hutch- (i) Richardson v. Hulbert, 1 An?t. 65. 
 inson v. Townsend, 2 Keen, 675 ; Perry (A) Norway v. Norway, 2 M. & K. 
 V. Knott, 5 Bear. 293 ; ante, 519, n. (A). 278 ; Bray v. West, 9 Sim. 429. 
 
 (/) Ante, Ch. I. [Remedies for 
 Breach of Trust], p. 518. 
 
 (1) But where all the cestui que trusts are before the court in a suit for the ad- 
 ministration of the trust, the trustees will not, in general, be allowed to interfere 
 actively in the suit. Davis v. Combermere, V. C. E., 9 Jurist, 76. 
 
 he shall be bound by all the proceedings in the cause. If the plaintiff shall re- 
 quire him to appear and answer, he shall be entitled to all the costs of all the 
 proceedings against him, unless the court shall otherwise direct." 
 
 ' So where the trustee has fully executed the trust, and delivered up the trust 
 property, he need not be made a party: Swan v. Ligan, 1 McCord, Ch. 231. 
 
800 OF SUITS AGAINST TRUSTEES. 
 
 of the suit is merely to obtain the accounts of the trust : for in that 
 case, if a trustee hare never accepted or acted in the trust, and the 
 bill state that fact, it ■will not be essential to bring the non-acting 
 trustee before the court. (Z) 
 
 Where an estate is subject to several distinct trusts, created by 
 the same instrument, and the execution of each trust rests with dis- 
 tinct sets of trustees, each set of trustees may be sued separately, in 
 respect of their separate trust. For instance, where a term is cre- 
 ated out of the inheritance for particular purposes, and a suit is 
 brought to carry into execution the particular trusts of the terra, it 
 will be sufficient to bring before the court the trustees of the term 
 and the cestui que trusts, without making an intermediate trustee of 
 the equitable interest a party to the proceedings. (m) 
 
 Where trustees enter into any personal covenants with strangers, 
 respecting the trust property, such as covenants for title or quiet 
 enjoyment, in a conveyance or lease of the estate — they will be liable 
 to an action at law, in case of the breach of those covenants. (n) But 
 where the conveyance or lease containing the covenants is set aside 
 in equity as improper, the instrument will be annulled in toto, and 
 the court will not leave the personal covenants of the trustees in force 
 for the benefit of the party taking under the deed.(o) 
 
 The allegations in an information or bill against trustees, seeking 
 to charge them with a breach of trust, must be such as amount to a 
 certain breach of trust : and if the facts alleged, as a mispayment or 
 application of the trust funds, might be justifiable under certain cir- 
 cumstances (not negatived by the bill), a demurrer for want of equity 
 will be allowed. (^) 
 
 We have seen that courts of law cannot take cognizance of a trust, 
 and an action at law against a trustee, for money had and received, 
 cannot be maintained, as long as the trust is open ; although where 
 a final account has been settled, and the trust closed, such an action 
 may l^e.{qy 
 
 {I) See Selyard v. Harris, 1 Eq. Ca. (p) Att.-Gen. v. Mayor of Norwich, 
 
 Abr. 74; Ex parte Angell, 2 Atk. 162; 2 M. & Cr. 406, 422. 
 
 Walker v. Symonds, 3 Sw. 1, 75; Routh (g) Case v. Roberts, Holt, N. P. C. 
 
 i^. Kinder, lb. 144, n. 501; Edwards v. Bates, C. P. June, 
 
 (m) Headi). Teynham, 1 Cox, 57. 1844; S. C. 13 Law Journ. N. S. 156; 
 
 In) Att.-Gen. v. Morgan, 2 Russ. 306. [7 Mann. & Or. 590.] 
 
 (o) Ibid. 
 
 ' See McGachen v. Dew, 15 Bear. 84; 15 Engl. L. & Eq. 17. 
 2 See ante, 518, note (1). 
 
OP THE EFFECT OF SUITS INSTITUTED, ETC. 801 
 
 *III.— OF THE EFFECT OF SUITS INSTITUTED BY OR [*548] 
 AGAINST TRUSTEES. 
 
 When a bill is filed in the Court of Chancery for the execution of 
 a trust, and the trustees have appeared and put in their answers, and 
 thereby submitted to the jurisdiction, the management of the trust is 
 taken out of their hands, and they cannot in general take any further 
 step, except under the direction, or with the sanction of the court.(r) 
 Thus where real estate was devised to a trustee for the payment of 
 debts, and after the testator's death a bill was filed by his creditors 
 for the administration of his estate, a sale by the trustee pending the 
 suit was held to be void.(s) And so a trustee of a will with a discre- 
 tionary power of investment cannot lay out money on mortgage after 
 a decree for an account in an administration suit without an applica- 
 tion to the court. (<) And after a decree in a creditor's suit, a trus- 
 tee for the payment of debts cannot pay any debt,(M) or bring an 
 action for recovery of a claim(a;) of his own authority. So it has 
 been already stated, that trustees of equitable interests belonging to 
 a married woman, are not at liberty to make them over to the hus- 
 band, after a bill has been filed on her behalf claiming a settlement 
 out of the property, although they would be fully justified in so doing 
 previously to the institution of the suit.( «/) Again, a trustee having 
 the most ample discretionary power to appoint new trustees, will not 
 be sufi"ered to exercise that power, after the institution of a suit for 
 the execution of the trust, except with the approbation of the court ; 
 and he will be restrained by injunction from conveying over the trust 
 estate to any new trustee appointed by him, without that approba- 
 tion. (g) However, if the appointment and conveyances to the new 
 trustees under such circumstances, be actually made and completed, 
 it will not necessarily be void, nor will it be declared at once a con- 
 tempt of court ; but the trustee must prove by the strictest evidence, 
 that what has been done was perfectly right and proper, and he must 
 also pay the costs of such proof. And if he fail in establishing a 
 sufficient case, the appointment of the new trustees will be set aside 
 with costs.(a) Thus in the case of Attorney- General v. Clack,(6) the 
 
 (r) Walker t).Smallwood,Ambl. 676; (a;) Oldfield v. Cobbett, 6 Beav. 515. 
 
 Webb V. Earl of Shaftesbury, 7 Ves. {y) Macauley v. Phillips, 4 Ves. 18; 
 
 480; Att.-Gen. v. Clack, 1 Beav. 467; Murray v. Lord Elibank, 19 Ves. 90; 
 
 Underwood v. Button, 5 Beav. 36 ; Wid- De la Garde v. Lempriere, 6 Beav. 344, 
 
 dowson V. Duck, 2 Mer. 498, 494; see 347; vide supra, [Trustees for Married 
 
 Shewen ■;;. Vanderhost, 2 R. & M. 75. Women, p. 413.] 
 
 («) Walkeri;. Smallwood, Amb. 676; (z) Webb v. Earl of Shaftesbury, 7 
 
 and see Drayson v. Pocock, 4 Sim. 283. Ves. 480. 
 
 (t) Widdowson v. Duck, 2 Mer. 494. (a) Att.-Gen. v. Clack, 1 Beav. 472, 3. 
 
 («) Mitchelson v. Piper, 8 Sim. 64. (6) 1 Beav. 467. 
 
 61 
 
802 OF THE EFFECT OF SUITS INSTITUTED 
 
 surviving trustees of a charity, with a power of appointing new trus- 
 tees, exercised that power and appointed new trustees, pending an 
 information, which had been filed for the appointment of new trus- 
 tees; Lord Langdale, M. R., held, that the defendants had not 
 shown, that the appointment was perfectly right and proper, and set 
 it aside with costs, to be paid personally by the defendant3.(6) 
 
 However, the mere filing of a bill against the trustees, to which 
 they have put in no answer, will not have the effect of suspending 
 powers given to the trustees, or of preventing them from doing acts, 
 r* f^d-Ql ^^^'^^ ^^^ *necessary to the due execution of the trust ; for 
 -* non constat, that the suit will ever be prosecuted fur.ther. 
 Thus in the recent case of Cafe v. Bent,(c) a sole surviving trustee 
 in exercise of a power created by the will, appointed two other per- 
 sons as new trustees, after the institution of a suit against him for the 
 appointment of new trustees. However, the court held the appoint- 
 ment valid, and refused an injunction to restrain the transfer of the 
 trust stock into the names of the new trustees. (c) It does not ap- 
 pear from the report of this case, whether the defendant had actually 
 put in his answer previously to making the new appointment; and 
 although the Vice-Chancellor (Sir J. Wigram) adverted to, and ex- 
 pressly recognised, the cases of Webb v. Earl of Shaftesbury, and 
 Attorney-General v. Clack, his judgment in Cafe v. Bent seems to 
 be somewhat at variance with the principle of those cases, as well as 
 with that of Walker v. Smallwood. Indeed, it seems to have been 
 his Honor's opinion, that the discretion of the trustees ceases only, 
 where the court has assumed the execution of the trusts. It was also 
 stated by the same learned Judge, that the court in these cases does 
 not deprive the trustees of the exercise of their discretion, but only 
 requires them to act under the control of the court. (c?) However, 
 this is a distinction to which it appears somewhat difficult to give any 
 practical effect. 
 
 It has been already stated, that new trustees, when actually ap- 
 pointed pendente lite, must be brought before the court by supple- 
 mental bill. This was so decided in the late case of Attorney-Gene- 
 ral V. Foster,(e) and it is remarkable that no question as to the pro- 
 priety of the appointment was there raised against the old trustees, 
 although the circumstances were very similar to those of Attorney- 
 General V. Clack, which last case was referred to by counsel in the 
 course of the argument. 
 
 Again, where a suit has been instituted for the administration of a 
 trust estate, and the party beneficially entitled has been let into pos- 
 
 (6) 1 Beav. 467. (e) Att. Gen. v. Foster, 2 Hare, 81. 
 
 (c) 3 Hare, 245. [Greenleaf t). Queen, 1 Pet. S. C. 143.] 
 
 (d) 3 Hare, 249. 
 
BY OR AGAINST TRUSTEKS. 803 
 
 session by the order of the court, the trustees will not be justified in 
 taking possession of the estate of their own authority for the purpose 
 of satisfying a claim, which may have subsequently arisen against 
 the testator's estate. In such a case the trustees, if they act at all, 
 must apply to the court for directions how to proceed.(/) 
 
 However, the suit must be actually pending and in course of pro- 
 secution, or it will have no effect in controlling the trustees in the 
 exercise of their ordinary powers. Thus where a suit was com- 
 menced in 1802, and the decree on further directions made in 1813, 
 which did not affect the real estate, and the suit afterwards became 
 abated, and was not revived, it was held that there was no such lis 
 pendens as to prevent the trustees from making a valid sale of the 
 real estate of their own authority in the year 1818.(5') 
 
 Where the answer of a trustee to a bill alleging a breach of trust 
 contains a clear admission that there is trust-money in his hands, it 
 is the constant practice to order the payment of the amount into 
 court upon an interlocutory application by motion. (A)^ And a simi- 
 lar order will be *made, where a defendant trustee makes pccQ-i 
 the same admission in his examination upon interrogatories L J 
 before the Master.(«) And an admission by the trustee that the 
 trust-money is in the hands of his banker,(A;) or his partner in 
 trade,(Z) will be treated as an admission of its being in his own hands 
 for the purpose of such a motion.^ And a trustee cannot protect 
 himself from the payment into court of trust-money, which he admits 
 to have come into his possession, by alleging any investment or ap- 
 plication of it, which amounts to a breach of trust. Therefore where 
 an executor or trustee acknowledges by his answer the receipt of a 
 sum of trust-money, but states that it has been lent on a promissory 
 note or bond, or on any other unusual security, and he has no ex- 
 
 (/) Underwood v. Halton, 5 Beav. 4 M. & Cr. 184; Meyer v. Montriou, 4 
 36. Beav. 343. 
 
 (g-) Drayson v. Pocock, 4 Sim. 283. (i) Hinde v. Blake, 4 Beav. 597. 
 
 (A) Rothwell V. Rothwell, 2 S. & St. (4) Johnson v. Aston, 1 S. & St. 73. 
 217; Richardson v. Bank of England, (I) Ibid.; see Freeman v. Fairlie, 3 
 
 Mer. 39. 
 
 ' See Contee «. Dawson, 2 Bland. 293 ; Hosack v. Rogers, 9 Paige, 468 ; Cla- 
 gett V. Hall, 9 Gill & J. 81 ; Nokes v. Steppings, 2 Phillips, 19 ; Brown u. Mole, 8 
 Beav. 177. A contingent interest is sufficient in a proper case to entitle the 
 partyto move. Bartlett u.Bartlett, 4 Hare, 631; Ross u. Ross, 12Beav. 89. There 
 must be some allegation of danger, however : Ross v. Ross, ut supr. On the 
 motion for payment into court, items in an account furnished in the trustee's 
 answer, objected to, but not specified in the notice of motion, can not be taken 
 into the account, though they may be equally inadmissible with others specified, 
 Nokes V. Steppings, 2 Phillips, 19. 
 
 2 But the amount must be specified, or the motion will not be allowed, and the 
 admission must be that of all the trustees. Boschetti v. Power, 8 Beav. 98. 
 
804 OF THE EFFECT OF SUITS INSTITUTED, ETC. 
 
 press aathority for making such an investment, he will be ordered on 
 motion to pay the amount into court, (to) And again, where a trus- 
 tee had admitted the possession of a sum of stock, but stated that 
 he had disposed of it, and invested the money on other securities, 
 without saying what securities, he was ordered to pay the whole fund 
 into court. (^y 
 
 But a trustee will not be ordered to pay money into court on an 
 interlocutory application, unless the title of the cestui que trusts be 
 clearly admitted, so that they must necessarily have a decree on the 
 hearing. (o) And if the trustee by his answer state his ignorance 
 whether the plaintiff fills the character he claims or not, no order 
 will be made for the payment of the money into court. (p) Moreover, 
 the foundation of such an application wholly fails, where the receipt 
 of the trust-money is not also distinctly admitted. Therefore, where 
 one of three co- trustees, in whose joint names a sum of trust stock was 
 standing, admitted the execution of a power of attorney enabling one of 
 his co-trustees to dispose of the stock and receive the proceeds, iut 
 denied having received any of the money, or having joined in any 
 misapplication of it, Lord Langdale, M. R., refused to make an in- 
 terlocutory order for the payment of the, money into court by that 
 trustee. (5') 
 
 And the relief upon an interlocutory application of this nature will 
 be confined strictly to the payment of money into court, and the 
 court will not direct any permanent relief, such as the repurchase of 
 stock, which had been sold by the trustee, for that can be done only 
 at the hearing of the cause. Thus in a very recent case, where a 
 trustee by his answer admitted that he had sold out a sum of trust 
 stock, but added a statement that " he had temporarily invested the 
 produce in other securities," Lord Langdale, M. E,., refused to order 
 the defendant the trustee on motion to repurchase other stock, and 
 transfer into court. (r) 
 
 There is no general rule of practice fixing the time for the trustee 
 to bring the fund into court, but regard will be had to the circum- 
 
 (m) Vigrass v. Binfield, 3 Mad. 62; (0) Beaumount v. Meredith, 3 V. & 
 
 Collis V. Collis, 2 Sira. 366; Wyatt v. B. 180; Freeman v. Fairlie, 3 Mer. 24, 
 
 Sharratt, 3 Beav. 498 ; see Widdowson 39. [See BoscheUi v. Power, 8 Bear. 
 
 V. Duck, 2 Mer. 494. 98.] 
 
 (n) Hinde v. Blake, 4 Beav. 597; {p) Dubless 1;. Flint, 4 M. & Cr. 302. 
 see Meyers). Montriou, lb. 348; Fulter (5) Meyer ti. Montriou, 4 Beav. 343. 
 V. Jackson, 6 Beav. 424. (r)x Fulter v. Jackson, 6 Beav. 424. 
 
 ■ The order in such cases proceeds on the admissions of the defendant, and 
 evidence cannot be resorted to. BoscheUi v. Power, 8 Beav. 98. The order 
 cannot be made on motion after decree, and before hearing on further directions, 
 merely on the admissions in the answer. Binns v. Parr, 7 Hare, 288 ; Wright 
 V. Lukes, 13 Beav. 107. 
 
OF COSTS. 805 
 
 stances of each particular case. Thus where there is any danger of 
 the property being lost, from the trustees being insolvent or in em- 
 barrassed circumstances *or otherwise, immediate payment 
 will be required, (s) If no such danger be apprehended, any L -^ 
 • reasonable time will be allowed for making the payment. (f) And in 
 fixing the day of payment, sufficient time will be allowed for the 
 trustee, if he desire it, to show that there is no reason for calling the 
 money into court.(tt) And if the money be invested on improper 
 securities, time will be given for calling them in ;(«) and a longer 
 period will be allowed where the money is abroad. («/)^ 
 
 A plaintiff trustee may also relieve himself from responsibility by 
 paying the trust funds into court, in order that they may abide the 
 result of the suit ; and he may obtain an interlocutory order for 
 making that payment.(2) 
 
 There has already been occasion to consider the cases, in which a 
 receiver of the trust estate will be appointed by the court as against 
 the trustees.(a) 
 
 The effect of a decree of the court in discharging trustees from 
 past and future liability, will more conveniently form the subject of 
 consideration in a future Chapter. (6) 
 
 IV.— OF COSTS. 
 
 In suits between trustees and strangers to the trust, the liability 
 to costs will ordinarily be governed by the general rule, which throws 
 the costs of a suit upon the unsuccessful party. Therefore, as a 
 trustee who succeeds in a suit will be entitled to the costs from his 
 adversary, so, if he fail, he must pay those costs. Thus, an execu- 
 tor, or trustee, who sues a debtor to the estate for the recovery of a 
 debt, or a trustee for sale, who files a bill against a purchaser for a 
 specific performance,- will have to pay or receive the costs of the suit, 
 in the same manner as a person instituting or defending such a suit 
 
 (s) Vigrass v. Binfield, 3 Mad. 63 ; («/) Johnston v. Aston, 1 S. & St. 73. 
 
 see Payne r. Collier, 1 Ves. jun. 170. (2) Francis v. Collier, 5 Mad. 75. 
 
 (t) See Vigrass v. Binfield, 3 Mad. [See Hosack v. Rogers, 9 Paige, 468.] 
 
 63 ; CoUis v. Collis, 2 Sim. 368. (a) Ante, Pt. I., Div. III., Ch. II., 
 
 (u) Hinde v. Blake, 4 Beav. 599. Sect. 3 ; p. 212. 
 
 Ix) Wyatt V. Sharratt, 3 Beav. 498; (t) Post [Discharge of Trnstees]. 
 Hinde v. Blake, 4 Beav. 599. 
 
 ' Where under an order of court, money admitted to be due by a trustee was 
 paid into court, to the credit of the cause generally, and the money was invested 
 in public stocks, on which a 1 oss occurred, it was held that the loss must be borne 
 by the defendant. De Peyster v. Clarkson, 2 Wend. 78. 
 
806 
 
 OF COSTS. 
 
 in his own right.(e)' And where a trustee for a mortgagee makes an 
 unsuccessful opposition to a suit by the moi-tgagor for the recovery 
 of the estate, and the delivery of the title deeds, the decree against 
 him will be with costs.(cZ) 
 
 And in such suits the costs, whether paid or received by the trus- 
 tee, will in general be taxed as between party and party, and not as 
 between solicitor and client, (e) 
 
 However, in these cases, the trustee is, doubtless, entitled to be 
 reimbursed out of the trust estate the amount of what he may be out 
 of pocket for costs, subject to the general rules, which will presently 
 be considered, respecting the right of trustees to their costs out of the 
 trust fund.(/)'^ 
 
 (c) Westley v. Williamson, 2 Moll. (e) Mohun v. Mohun, 1 Sw. 201; 
 458; Edwards v. Harvey, Coop. 40, 3 Norway v. Norway, 2 M. & K. 278; 
 Dan. Ch. Pr. 7, 57 ; see Brodie v. St. Edenborough v. Archbishop of Canter- 
 Paul, 1 Ves. jun. 326. bury, 2 Russ. 112. 
 
 (d) Earl of Scarborough I'. Parker, 1 (/) See 3 Dan. Ch. Pr. 58; Hillti. 
 Ves. jun. 267. Magan, 2 Moll. 460 ; vide post. 
 
 ' The proposition in the text is stated somewhat too broadly. In England, at 
 law, an executor, suing on a cause of action accrued during the lifetime of his 
 testator, is not liable for costs if he fails; though the court has the power of 
 punishing him by their imposition, on account of his conduct in the action. See 
 
 2 Williams' Exrs. 1 165. When defendant, however, the costs follow the ordinary 
 rule, and he will be personally liable if there are no assets. Id. 1219. This has 
 been followed in several of the States. Jamison v. Lindsay, 1 Bail. R. (S. C.) 79; 
 Farrier v. Cairns, 5 Ohio, 45 : Caperton v. Callison, 1 J. J. Marsh. (Ky.) -499 ; Har- 
 rison V. Warner, 1 Blackf. (Ind.) 385; Ketchum v. Ketchum, 4 Cow. 87; and in 
 this last State (New York), the Revised Statutes have adopted and extended the 
 common rule; 2 R. S., 615, ^ 17; see Finley v. Jones, 6 Barb. S. C. 229. So 
 formerly in Virginia; though by statute the rule has been changed, and executors 
 are made liable for costs. 2 Lomax Exrs. 38. But in Pennsylvania, the rule 
 is now the other way, and no distinction is made between executors and other 
 plaintiffs. Muntorff v. MuntorfT, 2 Rawle, 180; Show v. Conway, 7 Barr, 136; 
 Ewing V. Furness, 13 Penn. St. R. 532. So in Massachusetts, by statute. See 
 Hardy u. Call, 16 Mass. 530. 
 
 In New York, the rule in equity, also, is to allow executors and trustees their 
 costs in actions with strangers, where their conduct has been in good faith. 
 Moses V. Murgatroyd, 1 J. C. R. 473 ; Arnoux v. Steinbrenner, 1 Paige, 82; Roose- 
 velt 1). EUithorp, 10 Paige, 415; Dyer u. Potter, 2 J. C.R. 152; though it is other- 
 wise where the suit (if by the executors), is groundless and vexatious. Roosevelt 
 V. EUithorp, 10 Paige, 415; Getman v. Beardsley, 2 J. C. R. 274. The law was 
 so laid down, also, in Williams v. Matlock, 3 Verm. 189 ; Beauchamp v. Davis, 
 
 3 Bibb, 311; Long v. Israel, 9 Leigh, 556;. Garner v. Strode, 5 Litt. 314. But 
 where the executor comes into equity to aid a defence at law, it is otherwise; 
 Manning v. Phillips, 1 Paige, 472. 
 
 2 Ex parte Croxton, 13 Engl. L. & Eq. 402; 5 De G. & Sm. 432; Mumper's, 
 App., 3 W. & S. 443 ; Gage v. Rogers, 1 Strobh. Eq. 370 ; Capehart v. Huey, 1 
 Hill's Eq. 405; Gouverneur v. Titus, 1 Edw. Ch. 477; Knox v. Picket, 4 Desaus. 
 
OF COSTS. 807 
 
 *The case of a mortgagee is an exception to the general r*rro-| 
 rule, that the costs of a suit follow its result ; for a mort- 
 gagee is entitled to his costs of a suit either for redemption or fore- 
 closure. And a trustee for a mortgagee has also the same privilege, 
 whether his interest he created at the time and as part of the mort- 
 gage security, or whether it be vested in him subsequently by the 
 act of the mortgagee. Thus, where on the creation of a mortgage, 
 a term had been assigned to a trustee to attend for the benefit of the 
 mortgagee, and the trustee of the term was made a defendant by 
 the mortgagee in a suit for foreclosure, he was held entitled to his 
 costs. (^) And where a mortgaged estate is conveyed by the mort- 
 gagee to trustees on certain trusts, and those trustees are made de- 
 fendants in a suit either for redemption or foreclosure, they will have 
 their costs of the suit. (A) And the decree in such cases will be for 
 the trustees' costs, to be paid by the mortgagee and added to the 
 mortgage debt.(i) 
 
 We have seen that the trustees must, in general, be made parties 
 to suits instituted by their cestui que trusts against third persons,^ 
 and in such cases, although the plaintiffs obtained a decree in their 
 favor, they will usually be bound to pay the trustees their costs. (A;) 
 It has been laid down, indeed, in an Irish case, that if the trustee 
 refuse to Join as co-plaintiff in the suit upon being indemnified 
 against the costs, and he is consequently made a defendant, he must 
 
 (g-) Brown tj.'Lockhart, 10 Sim. 426. (i) Bartle v. Wilkin, 8 Sim. 238; 
 Ih) Wethereil v. Collins, 3 Mad. 255 ; Browne v. Lockhart, 10 Sim. 426. 
 Bartle v. Wilkin, 8 Sim. 238. (A) Ibid. 
 
 92; Delafieldi). Golden, 1 Paige, 139; Collins ?). Hoxie, 9 Paige, 8 1 ; Day u. Day, 
 2 Green's Ch. 549; Miles v. Bacon, 4 J. J. Marsh, 468; Peyton v. McDowell, 3 
 Dana, 314; Morton v. Barrett, 22 Maine, 257 ; see Carow v. Mowatt, 2 Edw. Ch. 
 57, where the costs of a suit, commenced against an executor, who was after- 
 wards removed, were allowed him. But where the executor, or trustee, has un- 
 reasonably resisted payment of a just debt, when the assets were sufficient, he 
 cannot charge the costs of the contest on the fund. Armstrong's Estate, 6 Watts, 
 236; Callaghan v. Hall, 1 Serg. & Rawle, 241 ; Getman v. Beardsley, 2 J. C. E. 
 274; Davis v. Davis, 2 Hill's Eq. 377. So in Pennsylvania, counsel fees will not 
 be allowed to an executor who takes part in an issue of devisavit vel non, to sus- 
 tain the validity of the testator's will, as that is a question in which the estate, as 
 such, is not necessarily interested. Mumper's App., 3 Watts & S. 443 ; Royer's 
 App., 13 Penn. St. R. 569; contra, in New Jersey, Day v. Day, 2 Green's Ch. 549; 
 see To wnshend v. Brooke, 9 Gill, 90. So where he takes part in a contest between 
 several claimants to a specific legacy, in which the residuary legatees are not 
 interested. Verner's Est., 6 Watts, 236. But where the only parties in interest 
 are legatees, for whose benefit the will is established, it is otherwise. Scott's 
 Est., 9 Watts & Serg. 98. 
 ' Ante, p. 545, note. 
 
808 OF COSTS. 
 
 abide his own costs as defendant. (Zy But according to the present 
 practice, the refusal of a trustee to join with his cestui que trusts as 
 co-plaintiff in a suit, without any other circumstances of misconduct 
 or caprice, would scarcely be sufficient to deprive him of his right to 
 his costs ; for by joining as a plaintiff he would become personally 
 liable for the costs of the suit, and the indemnity offered by the 
 cestui que trusts might not be a sufficient protection against that 
 liability. And in the recent case of Browne v. Lockhart,(m) where 
 a suit for foreclosure was brought by a mortgagee against the mort- 
 gagor, and a trustee of a term, which had been assigned in trust for 
 the plaintiff, was also made a defendant, the Vice-Chancellor (Sir L. 
 Shadwell), expressly recognised the right of the trustee to object to 
 being made a co-plaintiff. 
 
 In suits between trustees and cestui que trusts, where there is a 
 fund under the control of the court,- it is a general rule that the 
 trustees shall have their costs, as a matter of course, out of that 
 fund as between solicitor and client, unless they have forfeited that 
 right by any misconduct.(K) And this rule applies equally, whether 
 the trustee comes before the court as defendant or as plaintiff, as 
 long as the suit is properly instituted. (o) And a trustee, by whom a 
 suit is fairly instituted, will not ohly be entitled to his own costs, but 
 any person who is made a party to the suit for his protection, will 
 also be ordered his costs out of the fund. Thus, where a bill was 
 filed by trustees to obtain the direction of the court as to the 
 ^^„-. ^application of a trust fund, and the question was as to the 
 L ' -I legitimacy of one of the two claimants, who were both made 
 defendants, and the Master found that he was legitimate, the other 
 was allowed his costs out of the fund, for he was necessarily made a 
 party for the protection of the trustees.(^) 
 
 However, the court will not suffer this rule to be abused by bur- 
 dening the trust fund with any costs which are unnecessary, or might 
 be avoided.^ 
 
 (0 Readei). Sparkes,]MoI1.8. And (ni) 10 Sim., 426. 
 
 in a case where a co-executor had re- (n) Att.-Gen. v. City of London, 1 
 
 fused to join as plaintiff in a suit by Ves. jun. 246: Taylor v. Glanville, 3 
 
 the other executors, and he had been Mad. 176. [Post, 565, note.] 
 
 made a defendant, Sir William Grant (o) Curteis v. Candler, 6 Mad. 123; 
 
 refused to give him his co.sts. CoUyer see Coventry v. Coventry, 1 Keen, 758. 
 
 V. Dudley, T. & C. 422; see Blount v. (p) Hicks v. Wrench, 6 Mad. 93. 
 Burrow, 3 Bro. C. C. 90. 
 
 ' In Guyton v. Shane, 7 Dana, 498, a trustee refusing to join in a suit, and re- 
 sisting the equity of his cestui que trusts, was struck from the bill as complainant, 
 made a defendant, and subjected to costs. 
 
 ^ The trustees of a fund, who appeared without necessity, and without being 
 served, were refused their costs: Bennett v. Biddies, 10 Jurist, 534. 
 
OF COSTS. 809 
 
 Thus where a trustee, to whom a legacy had been assigned, filed 
 a bill against the executors to recover the legacy, notwithstanding he 
 had notice of a subsisting suit and decree for the administration of 
 the assets, under which he might have had the same benefit as that 
 sought by his own bill, the court refused to give him his costs of the 
 
 suit.(g') , 
 
 And on the same principle, where several co-trustees are made 
 defendants in respect of their joint fiduciary character only, they 
 ought to appear by the same solicitor, and answer and defend to- 
 gether ; and if they appear separately, and sever in their defence, 
 without any special circumstances to warrant that step, they will 
 only be allowed one set of costs.(r)^ 
 
 But distinct sets of costs will be allowed where there is sufBcient 
 reason for the severance.(s) And it has been considered a sufficient 
 reason for the trustees to sever, where one of them has a personal 
 interest, which conflicts with his duty as trustee ;(«) or where one of 
 them can admit facts which the others believe not to be true, for it 
 then becomes impossible for them with prudence to answer to- 
 gether ;(m) or if the trustees have never admitted a common interest 
 in themselves, by accepting the joint trust, or acting in common in 
 its performance ■,{x) or where they reside at a distance from each 
 other.(«/) 
 
 And where previous orders, allowing two sets of costs, have been 
 made and submitted to in the same cause, that will have considerable 
 weight with the court, in case an objection is raised on the hearing, 
 on further directions as to the allowance of costs on the same prin- 
 ciple. (a) 
 
 (g) ?ackwood v. Maddison, 2 S. & («) Gaunt v. Taylor, 2 Beav. 347. 
 
 St. 232. (a;) Aldridge v. Westbrook, 4 Beav. 
 
 (r) Nicholson v. Faulkner, 1 Moll. 213. 
 
 559; Gaunt v. Taylor, 2 Beav. 347; {y) AlAiiige v. W-esihiook,ubi supra; 
 
 Aldridge v. Westbrook, 4 Beav. 214; Slaughter ■«. Perry, Id. cited. [But see 
 
 Att.-Gen. v. Cuming, 2 N. C. C. 156; note 1, below.] 
 
 Allen V. Thorp, 13 Law Journ. N. S., (z) Gaunt v. Taylor, 2 Beav. 347; 
 
 Chanc. 5. Greenhow v. Etheridge, Rolls, 4th July, 
 
 (s) Reads v. Sparkes, 1 Moll. 10. 1843, MS. 
 
 (i) Gaunt v. Taylor, 2 Beav. 346. 
 
 ' Executors who severed in defence, were allowed but one counsel fee, in 
 Davis V. McNeil, 1 Ired. Eq. 344. In Farr v. Sheriff, 4 Hare, 328, trustees 
 severing were held entitled only to one set of costs, though it was stated at the 
 bar, though not in the answers, that they resided in different parts of the country. 
 And in a similar case, the Master of the Rolls refused to make any special order 
 as to costs, on the application of the severing trustees : Wiles v. Cooper, 9 Beav. 
 298. Where trustees sever, and one only is charged with misconduct, but one 
 set of costs will be allowed, and the whole to the innocent trustees : Webb v. 
 Webb, 16 Sim. 55. 
 
810 OF COSTS. 
 
 Where trustees have severed in their defence, and only one set of 
 costs is allowed them, the amount allowed for costs will, as a general 
 rule, be apportioned between all the trustees. However, if any one 
 of them be exclusively to blame in severing, he will be deprived of 
 any part of the costs, and the whole will be given to the others. (a) 
 And so where one of several co-trustees dissents from the opinion of 
 the majority, and acts separately from them in the conduct of his 
 case, but the court is of opinion that there was no sufficient reason 
 for the severance, and allows but one set of costs, the majority who 
 act together, will in general be entitled to receive their costs, to the 
 exclusion of the single trustee. (6) 
 
 . *A trustee who puts in a full answer to the whole bill, will 
 L J not be deprived of the costs of the answer, upon its being 
 afterwards objected to as unnecessarily long and vexatious, if he was 
 required to answer the whole bill;{c) for it is competent for the plain- 
 tiff to limit the extent of the discovery required from the trustee, 
 whom he makes a defendant.(d) However, if a trustee answer fully, 
 when not required to do so, he will only be allowed the costs of such 
 an answer as would have been necessary and proper. (e) 
 
 The Court of Chancery is the only proper tribunal to which trus- 
 tees should have recourse for guidance in the execution of their 
 trust ; and where the trustees of a charity apply to parliament for 
 an act of their own authority, and without the sanction of the court, 
 they will not be allowed the costs of that application, if it be unsuc- 
 cessful. (/) 
 
 There is another exception to the general right of trustees to their 
 costs, where the suit is occasioned solely by their improper conduct. 
 In such cases the court will either content itself with making no 
 order as to the costs, thereby leaving each party to pay their own ; 
 or where the misconduct of the trustees is such as to call for a se- 
 verer infliction, the decree will be for the payment of the costs of 
 both sides personally by the trustees. We will proceed to consider 
 first those cases in which the court has contented itself with de- 
 priving the trustee of his costs. 
 
 A trustee, who has accepted the trust, must not capriciously and 
 without reason refuse to act: and if by so doing he render necessary 
 
 (a) YoungiJ. Scott, stated, Lew. Trust. (d) See 16th Order of August, 1841. 
 
 450. (e) See Martin u Perrse, 1 Moll. 146. 
 
 (6) Att.-Gen. v. Cuming, 2 N. C. C. (/) Att.-Gen. v. Earl of Mansfield, 2 
 
 57. Russ. 501, 519. [Att.-Gen. v. Mayor of 
 
 (c) Aldridge v. Westbrook, 4 Beav. Norwich, 12 Jur. 424; 16 Simons, 225; 
 
 213; but see Martin v. Perrse, 1 Moll, see Att.-Gen. v. Andrews, 2 Mac. & G- 
 
 146. 225; 14 Jur. 905.] 
 
OE COSTS. 811 
 
 a suit for the appointment of a new trustee, he will be refused his 
 costs.(^)' 
 
 However, where the trust estate becomes involved and embarrassed 
 by unexpected difficulties and complications, which did not exist 
 when the trustee undertook the office, he has a right to come to the 
 court, to be relieved from the trust ; as where the trust property had 
 been repeatedly incumbered and put in jeopardy by the act of the 
 tenant for life. (A) And in such a case he will be entitled to his 
 costs, which will be fixed upon the tenant for life, or other party, by 
 whose conduct the suit was occasioned, (i) unless all parties agree that 
 the costs shall be borne by the trust fund.(/(;) So the age and infirmi- 
 ties of a trustee will be a sufficient reason for his applying to be 
 discharged ; as where he is seventy-six years old.(Z) 
 
 And where a power for the appointment of new trustees is con- 
 tained in the trust instrument, and that power is made to take effect 
 on the retirement, or refusal to act, of the existing trustees, it is 
 conceived that a trustee might retire from the trust without assigning 
 any reason, inasmuch as the vacancy in the trust might be filled up 
 by exercising the power, without the necessity of any suit ; and if a 
 suit became ultimately requisite, in consequence of the refusal of the 
 parties to make the appointment under their power, that refusal, and 
 
 (g-) Howard-!). Rhodes, 1 Keen. 581; (i) Coventry w. Coventry, 1 Keen, 
 
 Greenwood v. Wakeford, 1 Beav. 581. 760. 
 
 [Porter v. Watts, 9 Engl. L. & Eq. 161 ; (A) Greenwood v. Wakeford, 1 Beav. 
 
 Crageri). Halliday, 11 Paige, 314; Re 582. 
 
 Molony, 2 J. & Lat. 391; Jones v. fj) Re Warwick Charities, cor. Lord 
 
 Stockett, 2 Bland, 409.] Lyndhurst, Ch., 22d November, 1844, 
 
 (A) Coventry v. Coventry, 1 Keen, MS. 
 758; Greenwood v. Wakeford, 1 Beav. 
 576. 
 
 ' A party named trustee without his sanction, is authorized to take the opinion 
 of counsel as to his obligation to execute a disclaimer, and is entitled to the 
 costs thereof, and of the deed: Re Tryon, 7 Beav. 496. The rule as to costs of 
 disclaimer was laid down in Gabriel v. Sturges, 10 Jur. 215, 5 Hare, 97, as fol- 
 lows : Where a party disclaims so as to show that he had no interest in the 
 subject-matter of the suit at the time of its institution, he will be entitled to his 
 costs, as of course. But when the defendant, being properly brought before the 
 court in respect of his interest, afterwards disclaims, it is a matter of discretion, 
 vehether the court will direct the plaintiff to pay the defendant his costs, on the 
 ground that he ought not to have filed his bill, without ascertaining whether a 
 suit was necessary. Thus in Benson v. Davies, 1 1 Beav. 369, a trustee put in a 
 disclaimer, and set out a correspondence to show that he had always refused to 
 act; it was held that he was entitled to the whole costs, for the plaintiff ought to 
 have shown by his bill, that a simple disclaimer was sufficient. 
 
 Where a bill for the removal of trustees contained allegations of great fraud 
 against them, which all failed, the trustees were held to be entitled to the costs 
 of the whole suit, though they were remdVed on another ground : Stanes v. 
 Parker, 9 Beav. 385. 
 
812 OF COSTS. 
 
 r*55'S1 °°* ^^^ conduct of the retiring trustee, would *be the real oc- 
 casion of the suit. The point in question, however, does not 
 appear to have been ever actually decided. 
 
 In like manner if a trustee without sufficient reason refuse to con- 
 vey or make over the trust property at the request of the cestui que 
 trusts, he will not be allowed the costs of a suit instituted for the 
 purpose of compelling him to do so.(l) Thus where a person having 
 in his hands a fund, settled for the benefit of an infant, instituted a 
 suit to have it secured for the infant, although there was a trustee of 
 the settlement, to whom it might have been paid. Lord Gifford, M. 
 K., refused the plaintiff his costs out of the fund.(m) And in another 
 case, where a trustee refused to pay a legacy to the assignees of a 
 bankrupt legatee without the direction of the court, on the ground, 
 that the bankrupt himself had laid claim to it, the trustee was not 
 allowed his costs. (w) So in Angier v. Stannard,(o) where a trustee 
 refused to convey the legal estate, unless certain persons were made 
 parties to the conveyance, and the court decided, that those persons 
 were not necessary parties, the trustee was deprived of his costs of 
 the suit, although he had acted bond fide under the advice of a con- 
 veyancer of character.(o) 
 
 Upon this point, the Master of the Rolls said, " he (the trustee) 
 has acted bond fide under advice, which has misled him, but upon 
 which he had reason to rely from the experience and character of the 
 advisor. It is for the interest of society, that a trustee under such 
 circumstances should not be fixed with the costs of the suit ; but the 
 adviser, who misled Mm, being of Ms own choice, I cannot give him 
 the costs of the suit.{p) However, in a subsequent case where a trus- 
 tee of a term, acting under the advice of a conveyancing counsel, re- 
 fused to assign the term without the concurrence of certain parties, 
 and on a bill filed, the court held those parties to be unnecessary, 
 the trustee was, notwithstanding, allowed his costs of the suit, and 
 other charges and expenses. (^) In this last case the counsel consulted 
 on each side differed in opinion, and an offer by the defendant to 
 refer the question to a third counsel, was declined. The opinion 
 generally prevalent in the profession, and the one most sanctioned 
 by the interests of society, certainly is, that where a trustee in a 
 doubtful case acts bond fide under the advice of counsel, he will be 
 
 (m) Ellis V. Ellis, 1 Russ. 368. (o) Angier v. Stannard, 3 M. & K. 
 
 In) Knight d. Martin, 1 R. & M. 70 ; 566 ; but see Poole v. Pass, 1 Beav. 600. 
 
 and see Campbell v. Home, 1 N. C. C. (p) 3 M. & K. 572. 
 
 664, 670. (5) Poole v. Pass, 1 Beav. 600. 
 
 (1) Such a refusal will very frequently be a sufficient reason for making the 
 trustees pay costs. Vide post, and Jones v. Lewis, 1 Cox, 199; Willis v. Hisoox, 
 4 M. & Cr. 197; Thorby v. Yeats, 1 N. C. C. 438. 
 
OF COSTS. 
 
 813 
 
 entitled to his costs, although that advice turns out to be erro- 
 neous, (r)' » , J. 1 . i. i 
 And if there be sufficient reason for the refusal of the trustee to 
 make the conveyance or assignment, he will be entitled to his costs, 
 although the decree be made against him. For instance, where the 
 title of the cestui que trusts from length of time, or frequent devolu- 
 tion, or the obscurity of the trust, or from other circumstances, is not 
 perfectly clear,(s) or *the deed under which the plaintiff claims r^ggg-j 
 is not free from suspicion ;(i) or the determination of the trust 
 is not distinctly proved ;(m) or if the trustee might reasonably imagine, 
 that it would be wrong to accede to the request, as where he is re- 
 quired to transfer a trust fund to a married woman, and thus in effect 
 to give it to her husband(x)— in all these cases the trustee has been 
 held entitled to his costs. And it is settled, that trustees will be 
 justified in refusing to act without a suit, where they are required to 
 convey the trust estate in several parcels, part at one time and part 
 at another,(2/) or where the conveyance tendered for their execution, 
 contains a different description from that by which the estate was 
 conveyed to them.{z) And a trustee, when called upon to convey, 
 is entitled to take an expense of a legal opinion as to the propriety 
 of the conveyance. (a) 
 
 Again, if a suit be occasioned by a breach of trust on the part of 
 the trustee, he will unquestionably be deprived of his costs, even if 
 he be not decreed to pay them.(l) Thus where a trustee neglected 
 to see a settlement executed on the marriage of a cestui que trust, 
 and a suit became necessary to rectify the omission, the trustee was 
 deprived of the costs of the suit.(6) And if a balance have been im- 
 
 (r) See Vez o. Emery, 5 Ves. 144; (i/) 3 Russ. 594. 
 
 Hampsoiit). Bratnwood, 1 Mad. 392.395. {z) Ibid. 
 
 (i) Goodson V. EUisson, 3 Russ. 593- (a) See Goodson v. Ellisson, 3 Russ. 
 
 6; and see Poole v. Pass, 1 Beav. 600. 588; Poole v. Pass, 1 Beav. 604: Hol- 
 
 (<) Whitmarsh v. Robinson, 1 N. C. ford v. Phipps, 3 Beav. 434. 
 
 C. 715. (6) O'Callaghan v. Cooper, 5 Ves. 
 
 (u) Holford V. Phipps, 3 Beav. 434 ;1 29; Massey v. Banner, 4 Mad. 413; 
 
 4 Beav. 475. and see Newton v. Bennett, 1 Bro. C. C. 
 
 (x) Taylor v. Glanville, 1 Mad. 176; 362; Mousley v. Cair, 4 Beav. 49. 
 but see Thorby v. Yeats, 1 N. C. C. 438. 
 
 (1) The cases in which the misconduct of trustees will be a ground for making 
 them pay costs, will be presently considered. (Post, 558-565.) 
 
 ' In Devey v. Thornton, 12 Engl. L. & Eq. 204; 9 Hare, 222, where trustees 
 had unnecessarily raised doubts on the title of their cestui que trusts, costs were 
 refused them, though they had acted under the advice of counsel. The Vice- 
 Chancellor observed with reference to this, "It does not appear upon what state- 
 ments such advice was given, nor can I venture to hold that the opinion of coun- 
 sel will, in all cases, entitle trustees to their costs of suit." No costs, however, 
 were given against the trustees. 
 
814 OF COSTS. 
 
 properly retained in the hands of the trustee, that will be a ground 
 for refusing him his costs, (c) And where the trustees of a settlement^ 
 by w^hich the stock in trade, &c., of a business was limited to the 
 separate use of a married woman, omitted to take a schedule of the 
 articles, and thus occasioned great confusion and difiSculty, they were 
 deprived of the costs of the suit.((^) 
 
 Trustees may also deprive themselves of their title to costs by 
 their conduct in the suit. As where by their answer they raise and 
 insist upon a claim, which they are unable to support.(e)' Although 
 a claim, made by way of submission to the court, will not prejudice 
 a trustee with regard to costs. (/) And a trustee has been allowed 
 his costs, notwithstanding an unsuccessful claim, where the claim 
 was made honestly, and through a venial mistake. (^) 
 
 Again, it will be a sufficient reason for refusing his costs to a trus- 
 tee, if he state the trust to be different from what it really is, and 
 this although the statement may not be made with a view to his own 
 benefit. For instance, where a trustee of a settlement insisted, con- 
 trary to the fact, that it was the intention to insert a trust for the 
 wife's separate use. Lord Thurlow considered, that a trustee ought 
 not to have his costs of the suit.(A)^ 
 
 P^-cf,-, *However, the court is not eager to punish trustees by de- 
 L -I priving them of their costs,(i) and in many instances, where 
 there have been any mitigating circumstances, the trustees have been 
 allowed their costs of a suit, in which the decree has been against 
 them for a breach of trust. Thus, where the misapplication extended 
 only to a small part of the trust fund, and the suit had been insti- 
 tuted for other purposes, and there was no imputation against the 
 trustee, he was allowed his costs of the suit. (A;) And if the suit be 
 
 (c) Dawson v. Parrot, 3 Bro. C. C. Qi) Ball v. Montgomery, 2 Ves. jun. 
 
 236. [See post, 559, note (1).] 191. 
 
 {d) England v. Downs, 6 Beav. 279. (i) See Hall v. Hallett, 1 Cox, 134, 
 
 (c) Att.-Gen. v. Brewers' Company, 1 141. 
 
 P. Wms. 376 ; Dawson v. Parrot, 3 Bro. {k) Fitzgerald v. Pringle, 2 Moll. 534 ; 
 
 C. C. 236. and see Sammes v. Rickman, 2 Ves. 
 
 (/) Rashley i;.Martin, 1 Ves. jun. 205. jun. 36. 
 
 (g-) Bennett v. Going, 1 Moll. 529. 
 
 ' Where the trustee's litigation is for his own benefit, the costs will be as in 
 ordinary cases. Manning v. Manning, 1 J. C. R. 535; Hartzell v. Brown, 5 Binn. 
 138 ; Royer's App., 13 Penn. St. 569 ; Wham v. Love, Rice's Eq. 51 ; Ralston v. 
 Telfair, 2 Dev. & Batt. Eq. 414. But in Pell v. Ball, Spear's Eq. 48, it was held 
 to be in the discretion of the court to allow an executor the costs of opposing a 
 claim to a distributive share of the estate, though he is one of the next of kin. 
 
 ^ Where a trustee had been participant in a fraud, he was refused costs. Tar- 
 quand v. Knight, 14 Sim. 643. So, where though a bill alleging fraud against an 
 administrator was dismissed, there being reason for believing the charges true. 
 Wade V. Dick, 1 Ired. Eq. 313. 
 
OF COSTS. 815 
 
 instituted with unnecessary haste, and without any previous applica- 
 tion for an account, or for payment of the balance in the trustee's 
 hands, although a small balance be found due from him, he may be 
 allowed to retain the amount of his costs out of it.(/) So, in a case 
 where the trustees were directed to sell, as soon as conveniently 
 might be after the testator's death, and they refused an offer of 
 6,6001. for the estate, and afterwards sold it for 3,600^., the court 
 held that there was sufficient misconduct on the part of the trustees 
 to charge them with the loss occasioned by the difference, but as their 
 conduct had not been wilful or perverse, they were allowed their 
 costs of the suit.(^) And a venial mistake of the trustees will meet 
 with the same indulgence. (A) 
 
 And where a college, being trustees for a charity, had committed 
 several errors in the management of the trust, which were rectified 
 by the decree, but the trustees had only followed the course adopted 
 by their predecessors, and had been guilty of no wilful misconduct, 
 and a large fund had been accumulated out of the income of the 
 property by their care and good management. Lord Langdale, M. R., 
 after considerable hesitation, allowed the college their costs of the 
 suit out of the accumulated fund.(i) And where the trustees are a 
 corporation consisting of fluctuating members (as a college), and the 
 breach of trust was committed by the predecessors of the individuals 
 who composed the corporation at the time of the institution of the 
 suit, the court will be reluctant to charge the present members with 
 the costs ; for that would be to visit them with the consequences of 
 errors committed by their predecessors, whom they do not in any 
 respect represent. (A) However, the question of costs is peculiarly 
 within the discretion of the court, which will be governed by the par- 
 ticular circumstances of each case ; and it is impossible to lay down 
 any general rules for determining what will or will not amount to an 
 exception to the general doctrine, so as to entitle trustees to their 
 costs of a suit, which is occasioned by their breach of trust. 
 
 In extension of the principle, upon which the court acts, in depriv- 
 ing trustees of their costs, it will, under certain circumstances, go 
 further, and decree the whole or part of the costs to be paid per- 
 sonally ly them.{l) And it may be laid down as a general rule 
 (though subject to many exceptions), that where a suit is occasioned 
 solely by the misconduct or neglect of a trustee, the decree against 
 
 (/) Bennett v. Atkins, 1 Y. & Coll. (i) Att.-Gen. v. Caius College, 2 
 249. Keen, 150, 170. 
 
 (g-) Taylor ■w.Tabrura, 6 Sim. 281. (4) Att.-Gen. v. Caius College, 2 
 
 (A) Bennett v. Going, 1 Moll. 529. Keen, 169. 
 
 Q) See 3 Dan. Ch. Pr. 51, et seq. 
 
816 OF COSTS. 
 
 j.^_ _ him will be made with costs to be paid *personally by him.(»n) 
 '- J And this rule applies to corporations being trustees, as well 
 as to private individuals, (w) 
 
 Thus, if a trustee have acted in a fraudulent manner, either by 
 falsifying, or wilfully concealing, the facts for his own benefit, the 
 court, in making a decree against him, will unquestionably compel 
 him to pay the costs of the suit. For instance, where a trustee has 
 made false statements in his bill or answer(o) — or suppressed a mate- 
 rial fact, such as the sufficiency of the personal estate, for the pay- 
 ment of debts(p) — or had made an unfair valuation of the trust pro- 
 perty(9') — or concealed evidence relating to the trust(r) — or had re- 
 fused an offer for the purchase of the estate, unless the purchaser 
 would concede a personal benefit to himself (s) — or where the answer 
 was contradicted(*) — or a false pretence of outstanding claims was 
 set up as a reason for keeping a large balance in the trustee's 
 hands(M) — in all these cases, the court has marked its disapprobation 
 of the conduct of the trustees by decreeing them to pay the costs of 
 the suit. In like manner, where an executor and trustee procured 
 the cestui que trust to execute a release of a legacy without any 
 consideration and upon false suggestions, the release was set aside, 
 and the trustee was ordered to pay the costs of the suit.(2;) And if 
 a trustee, having a personal interest in the trust estate, file a bill and 
 bring the cestui que trusts before the court, merely to have the point 
 relating to his own interest determined at the expense of the trust, 
 he will be decreed to pay the whole costs of the suit for his improper 
 conduct. (2/) And so where a trustee for the sale of estates took 
 undue advantage of the confidence reposed in him, in order to pur- 
 chase them himself at an undervalue, and subsequently resold them 
 at a considerable profit, he was decreed by the Master of the KoUs, 
 to account for the profit made by him, and to pay the costs of the 
 suit ; and that decision was affirmed on appeal by the Lord Chancellor 
 
 (m) Fell V. Luthdwidge, Barn. 319; (p) Mallabai v. Mallabar, ubi supra. 
 
 Caffrey v. Durby, 6 Ves. 497; Crackelt (9) Shepperd v. Smith, 2 Bro. P. C. 
 
 V. Belhune, 1 J. & W. 589; Tebbs v. 372. 
 
 Carpenter, 1 Mad. 308. (r) Borough of Hertford v. Poor of 
 
 (w) Att.-Gen. v. Haberdashers' Com- Hertford, 2 Bro. P. C. 377 ; Att.-Gen. v. 
 
 pany, 2 Bro. P. C. 370; Att.-Gen. v. East Retford, 2 M. & K. 25. 
 
 Drapers' Company, 4 Beav. 67 ; Att.- {s) Hide v. Haywood, 2 Atk. 126. 
 
 Gen. V. Christ's Hospital, lb. 73 : see (t) Reech v. Kennegal, 1 Ves. 126. 
 
 Att.-Gen. v. Caius College, 2 Keen, 169; (m) Crackelt v. Bethune, 1 J. & W. 
 
 Borough of Hertford v. Poor of Hert- 586; see Stackpole v. Stackpole, 4 
 
 ford, 2 Bro. P. C. 377; Att.-Gen. v. East Dow. 209. 
 
 Retford, 2 M. & K. 35. {x) Horseley v. Chaloner, 2 Ves. 83; 
 
 (0) Vanghan v. Thurston, CoUe's P. S. C, lb.. Belt's Supplement, 281. 
 
 C. 175; Mallabar v. Mallabar, Ca. (i/) Henley u. Phillips, 2 Atk. 48. 
 Temp. Talb. 71 ; Shepperd v. Smith, 2 
 Bro. P. C. 372. 
 
OF COSTS. 817 
 
 (Lord Thurlow), and ultimately by the House of Lords.(2) Indeed, 
 fraud is looted upon with such odium in a court of equity, that it 
 may be laid down as an axiom of equitable law, that wherever a case 
 of fraudulent dealing is established against a trustee, the costs 
 will follow against him as a matter of course. (a) 
 
 So, wherever the sole object of a suit is to rectify a breach of trust 
 committed by a trustee, the decree against him will generally be with 
 costs, although his conduct may have proceeded only from negligence 
 or mistake, and without any fraudulent or improper motive. For 
 instance, where the ^trustees of a charity had acted with r^rrq-i 
 great negligence, though without corruption, they were de- L J 
 creed to pay part of the costs.(6) 
 
 And so where a decree was made against trustees, who had ne- 
 glected to sue for and recover a debt due to the trust estate, which 
 was lost in consequence, the costs of the suit were given against 
 them as a matter of course, although there was no corruption. (e) 
 
 And in charging trustees for balances unnecessarily retained in 
 their hands, the decree will in general go on to charge them with the 
 costs. (d)(1) 
 
 Again, as a general rule, trustees, who have made an unjustifiable 
 disposition or investment of the trust property, will be charged with 
 
 {z) Fox V. Mackreth, 2 Bro. C. C. (d) Troves v. Townshend, 1 Bro. C. 
 
 400, 406. C. 384; Littlehales v. Gascoigne, 3 Bro. 
 
 (a) See Hardwick ti. Vernon, 14Ves. C. C. 73; Franklin v. Frith, lb. 433; 
 
 504; Ayliff v. Murray, 2 Atk. 61. Seers «. Hind, 1 Ves. jun 294; Piety v. 
 
 (Jb) Easti). Ryal, 2 P. Wms. 284. Stace, 4 Ves. 620; Roche v. Hart, 11 
 
 (c) Caffrey v. Darby, 6 Ves. 488; and Ves. 58, 62; Mosley v. Ward, lb. 581 ; 
 
 see Lowson v. Copeland, 2 Bro. C. C. Ashburnham v. Thompson, 13 Ves. 
 
 156; Mucklowu. Fuller, Jao. 198,200. 402; Tebbs t). Carpenter,' 1 Mad. 290y 
 
 [Byrne D. Norcott, 13Beav. 336; Fen- 308; Crackelt v. Bethune, 1 J. & W. 
 
 wick V. Greenway, 10 Beav. 412.] 586. 
 
 (1) However, in a case in Ireland, it was said by Sir A. Hart, L. C, that he 
 had often heard it slated as a principle by some of the greatest judges, that an 
 executor, though in the result made answerable for default by reason of loss in- 
 curred through his neglect, or charged with interest for retaining money in his 
 hands, yet if there was nothing beyond such negligence, or retention of money 
 against him, was still entitled to the costs of the suit. Travers v. Townsend, 1 
 Moll. 496; and see Flanagan v. Nolan, lb. 84. [In Fozier v. Andrews, 2 Jones 
 & Lat. 1 99, a trustee, who had not misconducted himself, was held entitled to his 
 general costs, though made to pay interest, but his account being greatly re- 
 duced in the Master's office, he was not allowed the costs of his account in the 
 office. So in Cotton v. Clarke, 13 Eng. L. & Eq. 379, an executor who had re- 
 tained balances in his hands, was held under the circumstances entitled to his 
 costs of suit, though charged with interest on the balances. In Dunscombe v. 
 Dunscombe, 1 J. C. R. 507, though it was. stated to be the general rule that an 
 executor pays costs when charged with interest, yet it was decided that where the 
 cestui que trust demands more than he is entitled to receive, and the executor 
 submits to the direction of the court, he would not be compelled to pay them.] 
 
 52 
 
818 OF COSTS. 
 
 the costs of the suit. For instance, where a trustee without a suffi- 
 cient authority sells out the trust stock, he will be decreed to replace 
 the stock, and pay the costs of the suit.(e)' And so the trustees 
 of a charity who neglect the objects and misapply the fund will be 
 decreed to account with costs. (/) And if the trustees have made an 
 improper investment of the trust fund, by placing it out on personal 
 security, or in any other mode not authorized by the trust instru- 
 ment, or warranted by the practice of the court, the decree against 
 them for the restitution of the fund will usually be made with 
 costs. (^) And if they refuse to render their accounts, they will be 
 charged with the costs of a suit to compel them.(^)^ 
 
 So where trustees for sale have purchased the trust estate and 
 resold at a profit, they will be decreed to account for that profit with 
 costs. (i) And if the trust property purchased by the trustees belong 
 to infants, the trustees will be charged with costs, although the sale 
 was made by public action, and was perfectly fair and bona fide, and 
 there had been no resale or subsequent profit.(A) 
 
 Formerly, where an account was directed against a trustee with 
 interest it was considered, that the costs of the suit must also be 
 
 (e) Earl Powlett v. Herbert, 1 Ves. v. Fooks, 2 Beav. 430; Kellaway v. 
 
 Jun. 297; Wbisller i). Newman, 4 Ves. Johnson, 5 Beav. 319, 325; Challen «. 
 
 129; Adams v. Clifton, 1 Russ. 297; Shippam, 4 Hare, 555. [Hall 1). Franck, 
 
 Kellaway v. Johnson, 5 Beav. 319; ISJur. 718; Jones t). Foxhall, 13 Eng. 
 
 Crackelt v. Bethune, 1 J. & W. 586; L. &Eq. 141.] 
 
 Pocock V. Reddington, 5 Ves. 794, 9; Qi) Anon., 4 Mad. 273; CoUyer v. 
 
 Hoskingi). NichoUs, 11 Law Journ. N. Dudley, T. & R. 271. [Att.-Gen. ■«. 
 
 S., Chanc. 230. Gibbs, 1 De G. & S. 156.] 
 
 (/) Att.-Gen. u. Haberdashers' Com- (t) Fox v. Mackreth, 2 Bro. C. C. 
 
 pany, 2 Bro. P. C. 370. 400 ; Whichcote v. Lawrence, 3 Ves. 
 
 (g) Pocock V. Reddington, 5 Ves. 740. [See cases cited ante, note to p. 522.] 
 794, 9; Walker v. Symonds, 3 Sw. 1, (4) Saunderson v. Walker, 13 Ves. 
 
 89; Bateman D. Davis, 3 Mad. 98 ; Pride 601. 
 
 ' But where this is due at the request of the cestui que trust, a married woman, 
 the court will not give costs, on her bill to replace the stock. Mant v. Leith, 10 
 Eng. L. & Eq. 123. 
 
 ^ But the mere fact that an executor has neglected to render accounts when 
 requested, will not in itself make him liable for costs in an administration suit. 
 White V. Jackson, 15 Eng. L. & Eq. 138 ; see Robertson v. Wendell, 6 Paige, 
 322. And in Minuse v. Cox, 5 J. C. R., 451, where the charges in a bill for an 
 account (though rightly brought), which formed the main ground of the suit, 
 were proved false, unjust, and vexatious, the trustee was allowed all his taxable 
 costs, and extra charges and expenses out of the fund. The representative of a 
 defaulting executor, fairly accounting, is entitled to deduct his costs out of the 
 assets, though they may be insufScient to repair the breach of trust. Haldenby 
 V. SpofForth, 9 Beav. 195. But an offer by an executor to account, accompanied 
 with a denial that anything was due, will not excuse him from costs. Rogers 
 V. Rogers, 3 Wend. 503. 
 
OF COSTS. 819 
 
 given against him as a matter of course.(Z) However, this never 
 seems to have been adopted *as a general rule ;(wi) and in p^^rj^A-i 
 Ashburnham v. Thompson,(ji) the propriety of such a rule L J 
 was expressly denied by Sir Wm. Grant, M. R., who said, that there 
 might be many cases, in which executors might pay interest, which 
 would not be cases for costs. And according to the modern prac- 
 tice it is clear, that the mere fact of interest being given against 
 trustees, will not of itself govern the question of costs, (o) 
 
 Again, where trustees from obstinacy or caprice, refuse to act with- 
 out a decree of the court, they will in general be ordered to pay the 
 costs, (p)* Thus where a bill for the specific performance of an 
 agreement was occasioned by the refusal of a trustee to join in the 
 conveyance, he was decreed to pay all the costs of the suit.(^) And 
 so in another case, where the surviving trustee of a will refused to 
 convey the legal estate to the person beneficially entitled, upon some 
 unfounded objections to his title, and a bill was filed to compel him 
 to convey. Lord Cottenham made a decree for a conveyance against 
 the trustee with costs. (r) And in a very recent case, where a sum 
 of stock was given by a will to trustees, in trust to transfer the same 
 to the plaintiff (then a spinster) upon her attaining twenty-one, for 
 her separate use, and free from the control of any husband she might 
 marry, and the trustees refused to transfer the fund to the plaintiff, 
 who had attained twenty-one, and married without any settlement, 
 they were decreed to pay the costs of a suit instituted to compel a 
 transfer.(s) In this last case the highest legal advice had been ob- 
 tained in favor of the right of the plaintiff to require the transfer of 
 the fund. So in an early case, where trustees had kept possession of 
 
 (0 Seers v. Hind, 1 Ves. Jun. 294 ; Mousley v. Can, 4 Beav. 49, 53; Mac- 
 Roche V. Hart, 11 Ves. 62; Mosley «. kenzie v. Taylor, Rolls, 7 Beav. 467. 
 Ward, lb. 583. [Fozier «. Andrews, 2 J. & Lat. 199; 
 
 (m) Newton v. Bennett, 1 Bro. C. C. Gotten v. Clarke, 13 Eng. L. & Eq. 
 
 362; Forbes v. Ross, 2 Bro. C. C. 430 ; 379.] 
 
 Lee V. Brown, 4 Ves. 369; Raphael v. {p] Taylor v. Glanville, 4 Mad. 176 ; 
 
 Boehm, 11 Ves. Ill ; Sammes v. Rick- see Goodson v. Ellison, 3 Russ. 589. 
 
 man, 2 Ves. jun. 36. (g) Jones v. Lewis, 1 Cox, 199. 
 
 (w) 13 Ves. 404. (r) Willis v. Hiscox, 4 M. & Cr. 197. 
 
 (o) See Tebbs v. Carpenter, 1 Mad. (s) Thorby v. Yeats, 1 N. C. C. 438. 
 308 ; Fletcher v. Walker. 3 Mad. 73, 4 ; 
 
 ' See Moore i;. Prance, 7 Eng. L. & Eq. 17; Hutchins v. Hutchins, 6 Eng. L. 
 & Eq. 91 ; Furmin v. Pulham, 12 Jur. 410 ; 2 De G. & Sm. 99 ; Carter v. Robinson, 
 8 Beav.242; Hampshire i). Bradley, 2 Coll. C. C.34; Brinton's Est., lOBarr, 408. 
 In Lancashire v. Lancashire, 11 Jur. 1024, which was a suit by the heir-at-law 
 to set aside certain deeds by trustees, the heir had satisfactorily proved his pedi- 
 gree before the trustee, prior to the suit, but they forced him to prove it under 
 his bill ; on a decree in favor of the complainant, the court gave him his costs, 
 including that of the genealogical evidence. 
 
820 OF COSTS. 
 
 the estate from their cestui que trust, ivhom they considered a lunatic, 
 although he was not so in fact, upon a bill being filed against them 
 by the cestui que trust, they were ordered to pay the costs of the 
 suit, although they did not appear to have acted from any corrupt 
 motive, but only for the protection of the property for the benefit of 
 the persons entitled in remainder.(^) And where the trustees of an 
 estate, charged with two annuities, had refused to pay the annuities, 
 upon an insufficient pretence, that the annuitants had incurred a 
 forfeiture under a clause in the will, the decree was made against 
 them with costs, (m) In Goodson v. Ellisson,(a;) the legal estate had 
 been vested in a trustee by a settlement made in 1767, and in 1822 
 the purchaser of part of the property applied to the co-heiresses at 
 law of the trustee for a conveyance of that part : every ofi'er had 
 been made to them to satisfy them as to the plaintiff's title by the 
 inspection of instruments, or the use of professional assistance at the 
 plaintiff's expense, but the defendants persisted in their refusal to 
 execute the conveyance, and the Master of the Rolls (Lord Gifford) 
 being of opinion that this refusal by the defendants proceeded from 
 caprice and pertinacity, decreed them to execute a conveyance to 
 the plaintiff, and to pay the costs of the *suit.(y) However, 
 
 [*561] 
 
 this decree as to the costs was reversed on appeal by the 
 
 Lord Chancellor (Lord Eldon), partly because a trustee could not be 
 required to convey the trust estate in parcels, and partly because 
 the length of time and other circumstances had thrown so much 
 obscurity on the title, that the trustees had a right to insist on the 
 conveyance being settled in the Master's office, (z) 
 
 In the very recent case of Lyse v. Kingdom,(a) the plaintiff was 
 entitled under a will to a share in a trust fund, in the event of A. 
 having died in the lifetime of the testatrix. A.'s share in the fund 
 was set apart by the two executrixes and trustees, who signed a 
 memorandum, stating that they held the amount in trust for him, 
 but they retained the amount in their own hands, and both died 
 without ever having invested it. The testatrix died in the year 
 1818, and A. had not been heard of since 1793, when he was sup- 
 posed to have gone to sea. In 1837, application was made by the 
 plaintiff to the executors of the two trustees for payment of the fund, 
 accompanied by strong circumstantial evidence, showing that A. had 
 died in the lifetime of the testatrix, though that fact was not com- 
 pletely brought home. The executors admitted assets of the two 
 trustees sufficient for the payment of the amount of A.'s share, and 
 the Master having found that A. died in the lifetime of the testatrix, 
 
 (<) Brown v. How, Barn. 354. (y) 3 Russ. 587. 
 
 (u) Lloyd ■«. Spillett, 3 P. Wms. 344. (z) 3 Russ. 592. 
 (a:) 3 Russ. 583. (a) Lyse v. Kingdom, 1 Coll. 184. 
 
OF COSTS. 821 
 
 the only question was, by whom the costs of the suit were to be paid : 
 and Sir K. Bruce, V. 0., held, that there was not at any moment 
 any reasonable doubt as to the title of the plaintiff, and his Honor 
 decreed for the plaintiff, with the costs of the suit, to be paid out of 
 the assets of the two trustees.(a) And in another case, where the 
 trustees of a fund belonging to a feme sole, refused to transfer it to 
 the trustees of the settlement made on her marriage, and compelled 
 the parties to file a bill to obtain the payment, they were decreed to 
 pay the co8ts.(J) 
 
 But wherever there is sufficient reason for a trustee's refusing to 
 act without the direction of the court, he will unquestionably be en- 
 titled to the costs of a suit instituted to obtain that direction.(c) And 
 where his conduct, though erroneous, proceeds from ignorance, and 
 not from any improper motive, the court has contented itself with 
 depriving him of his costs, (d) The cases on this point have already 
 been considered, in discussing the liability of trustees to be deprived 
 of their costs, and these are d 'fortiori authorities on the question of 
 the payment of costs by them.(e) 
 
 Again, if a suit be occasioned by disputes amongst the trustees, — 
 as where*-a cestui que trust was obliged to file a bill for the appoint- 
 ment of a receiver, in consequence of a quarrel amongst the trustees, 
 as to which of them should receive the rents of the trust estate, — the 
 trustees, or such of them as are in fault, will be decreed to pay the 
 costs of the suit;(/) and if necessary, an inquiry before the Master 
 will be directed to ascertain which of the trustees were in fault.(^) 
 
 And so if the trustees have supported an erroneous or improper 
 claim *made by one of the cestui que trusts adversely to the 
 other, and have thus driven the injured party to file a bill for L J 
 the protection and assertion of his rights, the trustees will be decreed 
 to pay the costs of the suit.(A) And their liability in such a case 
 will be yet more strictly enforced, where the injured cestui que trust 
 is a married woman. (i) 
 
 If the trustees by their answer raise and insist on a claim to the 
 trust estate for their own benefit, they will be considered to have 
 devested themselves of the character and privileges of trustees, and 
 to have placed themselves in the same situation as any other parties, 
 between whom a question is in course of hostile litigation ; and if 
 
 (a) Lyse v. Kingdom, 1 Coll. 184. (e) Ibid. 
 
 (6) Penfold v. Bouch, V. C. Wigram, (/) Wilson v. Wilson, 2 Keen, 249 ; 
 
 [4 Hare, 271.] and see Bagot v. Bagot, 10 Law Journ. 
 
 (c) Goodson v. EUisson, 3 Euss. 592. N. S., Chano. 116. 
 
 [Dustan v. Dustan, 1 Paige, 509; Arm- (g-) 2 Keen, 252. 
 
 strong V. Zane, 12 Ohio, 287.] (A) Baggot v. Baggot, 10 Law. Joum. 
 
 (</) Vide supra. [See Robertson v. N. S., Chano. 116. 
 
 Wendell, 6 Paige, 322.] (i) ibid. 
 
822 
 
 OF COSTS. 
 
 they fail in establishing their claim, the decree against them will be 
 made with costs. Thus where an executor made an unsuccessful 
 claim to be entitled to the surplus of the estate for his own benefit, 
 he was made to pay the costs of the suit.(A;)' And in two very recent 
 cases, where a corporation, being trustees for a charity, raised a 
 claim to the surplus arising from the increased value of the property 
 for their own benefit, to the exclusion of the objects of the charity, 
 Lord Langdale, M. R., fixed them with the costs of the inform ation.(Z) 
 However, there has already been occasion to observe, that trustees 
 will not be deprived of their costs, although they make a claim for 
 their own benefit, provided they do so by way of submission to the 
 court.(»i) 
 
 And so if a trustee misconduct himself in the course of a suit — as 
 where he sets up an improper defence, by insisting wrongfully on a 
 clause of forfeiture against the cestui que trusts ;{nf or shows a 
 disposition to obstruct and retard the course of justice, by misstating 
 or refusing to deliver proper accou:fats ;(o) or making false state- 
 ments in his answer ;(p) or by stating his ignorance of facts, the 
 truth of which afterwards appears from tjie documents scheduled in 
 the answer ;(§') or by concealing evidence relating to the trust :(r) 
 in all these cases the court will punish the trustee, by fixing him with 
 the payment of the costs. Upon this principle, in a recent case, 
 where executors and trustees at the hearing of a cause insisted on an 
 inquiry being directed, to ascertain whether all the children entitled 
 under the will were before the court, and the court was of opinion, 
 that the facts were so clear as to render it improper for the trustees 
 to have required that inquiry, they were ordered to pay the costs of 
 
 {k) Bayly r. Powell, Prec. Ch. 92; 372; Avery ?>. Osborne, Barn. 349; Fla- 
 
 2 Vern. 361 ; and see Lawson v. Cope- nagan v. Nolan, 1 Moll. 86; Norbury v. 
 
 land, 2 Bro. C. C. 156; Willis w. Hiscox, Calbeck, 2 Moll. 461. 
 
 4 M. & Cr. 197. (p) Vaughan v. Thurston, CoUe's P. 
 
 Q) Att.-Gen. v. Drapers' Company, 4 C. 175; Mallabar v. Mallabar, Ca. T. 
 
 Beav. 67; Att.-Gen.-u. Christ's Hospital, Talb. 79; Reach v. Kennegal, 1 Ves. 
 
 Id. 73. 126. 
 
 (m) Vide supra; and Rashley v. Mar- (5) Att.-Gen. v. East Retford, 2 M. & 
 
 tin, 1 Ves. jun. 205. K. 35. 
 
 (n) Lloyd v. Spillett, 3 P. Wms. 346. (r) Borough of Hertford v. Poor of 
 
 (0) Shepperd v. Smith, 2 Bro. P. C. Hertford, 2 Bro. P. C. 377. 
 
 ' See ante, 556, note. 
 
 ^ Where a trustee denies the trust, and sets up a claim for his own benefit, he 
 will be condemned in costs : Lemmond v. Peoples, 6 Ired. Eq. 37 ; Waterman v. 
 Cochran, 12 Verm. 699; see Spencer u. Spencer, 11 Paige, 297, where costs 
 were merely refused. Where property has been conveyed on an illegal trust, 
 the trustees will be liable to costs on account of their concurrence, on a bill by 
 those entitled to the resuhing trust : Lemmond v. Peoples, ut supra; see Tarquand 
 V. Knight, 14 Simons, 643. 
 
OF COSTS. 823 
 
 it.(s) And so if the conduct of the trustees during the progress of 
 a suit occasions a needless increase of expense, the court will throw 
 upon them the additional expense. For instance, where the trustees 
 had embarrassed the proceedings, and rendered it necessary to have 
 other *parties brought before the court, by appointing new 
 trustees after the institution of the suit, they were ordered to L . J 
 pay the extra costs occasioned by that act.(i) 
 
 Where there are several co-trustees, and some of them only have 
 been guilty of the misconduct which occasioned the suit, whilst the 
 others have been ready and anxious to discharge their duties properly, 
 the guilty trustees alone will be decreed to pay the costs of the suit, 
 including the costs of their innocent co-trustees. (m)* 
 
 However, it has been already shown, (a;) that the court in the exer- 
 cise of its discretionary jurisdiction has frequently refused to deprive 
 the trustees of their costs of a suit, though the decree is made against 
 them ; and those cases are yet stronger authorities for refusing to 
 make the trustees pay the costs. Hence, to recapitulate those in- 
 stances, an exception will be made to the general rule charging trus- 
 tees with the costs of^a suit occasioned by their breach of trust, and 
 they will even be allowed their costs, where their conduct has pro- 
 ceeded from mistake or accident, without any corrupt or improper 
 motive ; as where an erroneous claim for his own benefit had been 
 raised bond fide by a trustee ;(z/) or where through a venial mistake, 
 or misapprehension of their duty, there had been an incorrect appli- 
 cation, or retention of, or other dealing with, the trust funds, (s) 
 (more especially if the question relates only to a small portion of the 
 property), (a) or where the suit is instituted with unnecessary haste,(J) 
 or after great and unnecessary delay,(e) and where the trustees take 
 the earliest opportunity of correcting their error, after it is brought 
 to their notice,((i) and their accounts are correct and satisfactory in 
 
 (s) Westover v. Chapman, 1 Coll. Travers v. Townsend, 1 Moll. 496; 
 
 379, 383. Flanagan v. Nolan, lb. 84; Taylor v. 
 
 (t) Att.-Gen. v. Clack, 1 Beav. 467; Tartrum, 6 Sim. 281 ; Mousley v. Carr. 
 
 Cafe V. Bent, 3 Hare, 249; S. C. 13 Law 4 Beav. 49. 
 
 Journ. N. S., Chanc. 169. (a) Fitzgerald v. Pringle, 2 Moll. 534 ; 
 
 (u) Bagot V. Bagot, 10 Law Journ. N. Sammes v. Rickman, 2 Ves. jun. 36. 
 
 S., Chanc. 116. [See Webb v. Webb, (t) Bennet'U. Atkins, 1 Y. & Coll. 249. 
 
 16 Sim. 55.] (c) Att.-Gen. v. Dudley, Coop. 146; 
 
 (,x) Vide supra. Pearce v. Newlyn, 3 Mad. 189. 
 
 (i/) Bennett v. Going, 1 Moll. 529 ; (d) Att.-Gen. v. Drapers' Company, 4 
 
 vide supra. Beav. 71. 
 
 (z) Parrot v. Treby, Free. Ch. 254 ; 
 
 ' But where several defendants are involved in a breach of trust, the court 
 gives costs against all, without regard to the degree of culpability, on the princi- 
 ple of giving greater security for their payment. Lawrence v. Bowles, 2 Phill. 140. 
 
824 OF COSTS. 
 
 other respects. (e) And corporations and other trustees for charities 
 appear to be regarded with especial favor in this respect, where the 
 error has been adopted and followed from the long-continued practice 
 of their predecessors. (/) 
 
 But trustees will not meet with this indulgence, unless they have 
 given every possible facility to the court to do complete justice, by 
 delivering their accounts, and giving all the information in their 
 power,(^) and if they act in a contrary spirit, that alone will induce 
 the court to visit them with costs. (A) 
 
 Where a trustee acts under the advice of counsel, which turns 
 out to be erroneous, he will certainly not be made to fay the costs 
 r*'ifi41 °^ ^^ ^'^'^ "W *^^ ^^^® already had occasion to consider how 
 far he would be entitled to receive his costs under such cir- 
 cumstances. (^) 
 
 In some cases, as we have already seen, the court has contented 
 itself with depriving the trustees of their costs, leaving each party to 
 pay their own.(Z) For instance, where a trustee, who was also tenant 
 for life, through mistake as to her rights had applied part of the 
 trust funds to her own use, she was decreed to account for the money 
 so applied, with interest at four per cent. ; but as the construction 
 of the will was doubtful, and she had acted through ignorance, the 
 decree was made against her without costs. (m) And a decree has 
 been made without costs against a trustee, on the ground of the 
 delay on the part of the plaintiffs in prosecuting their claim. (m) 
 
 A suit against trustees is frequently rendered necessary by circum- 
 stances, independent of, and wholly unconnected with, any breach of 
 trust, and in such cases the court will meet the justice of the case by 
 apportioning the costs of the suit, and will in general give the trus- 
 tees all the costs not actually occasioned by their breach of trust.' 
 
 (e) Mackenzie v. Taylor, [7 Beav. [Devey v. Thornton, 12 Engl. L. & Eq. 
 
 467.] 204.] 
 
 (/) Att.-Gen. v. Caius College, 2 (fc) Vide supra. 
 
 Keen, 169; Att.-Gen. u. Drapers' Com- (Z) O'Callaghan v. Cooper, 5 Ves. 
 
 pany, 4 Beav. 71; Att.-Gen. v. Drum- 117; Raphael v. Boehm, 13 Ves. 592; 
 
 mond, 3 Dr. & W. 162. Forbes v. Ross, 2 Bro. C. C. 431; 
 
 (g) See Parrot v. Treby, Prec. Ch. Fletcher v. Walker, 3 Mad. 74 ; Mous- 
 
 254 ; Att.-Gen. v. East Retford, 2 M. & ley v. Carr, 4 Beav. 49 ; Massey v. 
 
 K. 40. Banner, 4 Mad. 413. 
 
 (A) Alt-Gen. v. East Retford, 2 M. & (m) Mousley v. Carr, 4 Beav. 49. 
 
 K. 36. , (n) Att.-Gen. v. Dudley, Coop. 146; 
 
 (i) Angler v. Stannard, 3 M. &K. 572. Pearce v. Newlyn, 3 Mad. 189 ; ante, 
 
 p. 144. 
 
 ' In Fozier v. Andrews, 2 Jones & Lat. 199, a trustee who had not miscon- 
 ducted himself, was allowed his costs of suit, though charged with interest; but 
 his account being greatly reduced, in the Master's office, he was not allowed the 
 
OF COSTS. 825 
 
 The rule has been thus stated by Sir Thos. Plumer, V. 0. : " If a 
 suit would have been proper, and the executor a necessary party, 
 though the executor had not misconducted himself, he ought not to 
 pay all the costs of such a suit, though in the course of the suit it 
 appears, that he has misconducted himself; but if the misconduct of 
 the executor was the sole occasion of the suit, he ought then to pay 
 the costs, "(o) Therefore, where a bill was filed by cestui que trusts 
 against their trustee, charging him with misconduct in felling timber, 
 and also with an improper investment of part of the trust funds, and 
 they failed in establishing the first part of their case, which was 
 abandoned, but succeeded in proving the other part, and obtained a 
 decree against the trustee for an account of the trust funds misap- 
 plied by him, with interest at five per cent., the Master of the Rolls 
 said, that it would be injustice to make the defendant pay the whole 
 of the costs, for one part of the bill had failed ; and he was therefore 
 decreed to pay so much of the costs as related to the breach of trust.{p) 
 And in Sanderson v. Walker,(g') where the trustees for the sale of an 
 infant's estate had themselves purchased the estate at an undervalue, 
 the decree against them for a re-sale was made with costs ; but as to 
 other parts of the case, which concerned accounts, that must have been 
 talcen, if the purchase had not been made by the trustees, the Lord 
 Chancellor considered, that there was no ground for charging the 
 trustees with costs, and they were therefore allowed those costs, as 
 in ordinary cases, (r) 
 
 Again, in Tebbs v. Carpenter,(s) where a suit had become neces- 
 sary to determine the construction of a will, but in the course of the 
 suit, *inquiries were directed as to arrears of rent and balan-p^r/^r-i 
 ces retained by the trustees in breach of their trust, the trus- 
 tees were allowed their costs of the suit, with the exception of the costs 
 occasioned by the inquiries as to the breach of trust.{s) And upon the 
 same principle, where an executor had refused to render his account, 
 but upon a bill filed, set out the account correctly in his answer, and 
 the plaintifi", notwithstanding, took a decree for account, the Vice- 
 Chancellor gave the plaintifi" the costs up to the decree, but he allowed 
 the defendant the costs of the subsequent proceedings.if) So in the 
 
 (o) Tebbs v. Carpenter, 1 Mad. 308; phael v. Boehm, 13 Ves. 590 ; Ayliff v. 
 
 and see Craokelt v. Bethune, 1 J. & W. Murray, 2 Atk. 61. 
 
 589. (r) See Campbell v. Walker, 5 Ves. 
 
 (p) Pocock V. Reddington, 5 Ves. 678. 
 
 794, 800; see Lowson v. Copeland, 2 («) Tebbs v. Carpenter, 1 Mad. 290, 
 
 Bro. C. C. 156. 309. 
 
 (?) 13 Ves. 601, 604; and see Ra- («) Anon., 4 Mad. 273. 
 
 costs of the office. So in Pennsylvania, where the balance in an executor's 
 account, claimed to be in his favor, is turned against him, the expenses of the 
 audit will be put on him. Sterrett's Appeal, 2 Pa. R. 419. 
 
826 OF COSTS. 
 
 recent case of Pride v. rooks,(M) which was a suit to charge a trus- 
 tee with the consequences of a particular breach of trust, and also to 
 obtain the directions of the court as to the general administration of 
 the trust, the trustee was allowed the general costs of the suit, al- 
 though he was decreed to pay so much of the easts as had been caused 
 hy his breach of trust.iu) And upon this principle, although a suit 
 may have been originally occasioned by the breach of trust of the 
 trustees, yet after a decree has been made remedying the breach of 
 trust, and the decree has been acted upon, and the trust property 
 replaced by the trustees, they will not be charged with the costs of 
 Any subsequent proceedings, that may be taken for the convenience 
 or benefit of the cestui que trusts. For instance, in a late case in the 
 Rolls(2;) a bill was filed against a trustee to charge him with a breach 
 of trust in selling out and improperly investing the trust fund, and 
 at the hearing, a decree was made against the trustee, directing him 
 to replace the fund and pay the costs, which was done. It was also 
 referred to the Master to take the account of the estate, and to ascer- 
 tain certain facts requisite for clearing and distributing the trust fund, 
 and Lord Langdale, M. R., without hearing counsel for the trustees, 
 held, that they were not liable for the costs of these subsequent pro- 
 ceedings, (a;) 
 
 So if the plaintifi", in a suit against trustees enter into any unne- 
 cessary evidence, as where he proves a fact which is admitted, or 
 which is not required to be proved — he will be refused the costs thus 
 needlessly incurred, although he succeeds in the suit, and obtains a 
 decree with costs against the defendants. (z/) 
 
 In suits between trustees and cestui que trusts, where there is a 
 fund under the control of the court, the trustees, as a general rule, 
 are entitled to their costs out of the fund, to be taxed as between so- 
 licitor and client, and not like ordinary costs, as between party and 
 party 'jizf and these are emphatically termed trustee's costs.(a) And 
 
 («) Pride -y. Fooks, 2 Beav. 430,437. Whilmarshu Robertson, 1 N.C. C. 717: 
 
 \x) Hewett v. Foster, 8 Jurist, 759. Mohun v. Mohun, 1 Sw. 201. 
 
 \y) Thorby v. Yates, 1 N. C. C. 469; (a) See Poole v. Pass, 1 Beav. 604 ; 
 
 and see Westover v. Ciiapman, 1 Coll. Holford v. Philps, 4 Beav. 475; Cough 
 
 379,383. V. Andrews, 8 Jurist, 307; York v. 
 
 {z) Amand v. Bradbourne, 2 Cha. Brown, 1 Coll. N. C. C. 260. 
 Ca. 138; Pride v. Fooks, 2 Beav. 437 ; 
 
 ' Hosack V. Rogers, 9 Paige, 463 ; Irving v. De Kay, 9 Paige, 533 ; Minuse v. 
 Cox, 5 J. C. R. 451. The allowance to executors, in proper cases, of reasonable 
 counsel fees, is general. See Capeart v. Huey, 1 Hill's Eq. 405 ; Day ii. Day, 2 
 Green's Ch. 549 ; Scott's Est., 9 W. & S. 98. Hester v. Hester, 3 Tred. Eq. 9 ; 
 Jewett V. Woodward, 1 Edw. Ch. 200 ; Glass v. Ramsey, 9 Gill, 459 ; Towns- 
 hend v. Brooke, 9 Gill, 90; Burt v. McEwen, 1 Baldw. C. C. 154; Morton v. 
 Barrett, 22 Maine, 257; Stephens^. Lord Newborough, 1 1 Beav. 403; 12Jur.319. 
 
OF COSTS. 827 
 
 in addition to their costs of the suit, they will also be allowed their 
 charges and expenses, if properly incurred.(6) But costs as between 
 solicitor and client will not include every charge which a party's own 
 solicitor would be entitled to make against him in his bill ; or any 
 charges or expenses which are not *strictly costs. There- r^ggg-i 
 fore, the decree should always go on to allow the trustee his 
 charges and expenses.{c) The distinction between costs taxed as be- 
 tween party and party, and those as between solicitor and client, is 
 peculiar to courts of equity, and does not exist at law. 
 
 Where there is the usual direction in the decree for just allowances, 
 the trustee will be entitled to his charges and expenses, as well as 
 his costs, under that head, without any special mention of them.{d) 
 
 And although there may be no fund in court which is applicable 
 in the payment of costs, yet if a trustee be brought before the court 
 by his cestui que trusts, and a decree obtained by them for their own 
 benefit, and without any default on the part of the trustee, he will be 
 equally entitled to his costs as between solicitor and client, to be paid 
 to him personally by the plaintiffs. (e) And it is immaterial that the 
 trustee, who is made a defendant to a suit, is a solicitor. [f) How- 
 ever, the decree, or order, must contain an express direction to tax 
 the costs of the trustee as between solicitor and client; for, other- 
 wise, the taxation will be made in the ordinary way, as between party 
 artd party ;[g) although if the decree contain the usual direction for 
 just allowances, he would be entitled to his extra expenses under that 
 head. (A) 
 
 But in suits between trustees and strangers to the trust, it has been 
 already stated, that trustees are on precisely the same footing as any 
 other parties suing or defending in the court; and, therefore, as 
 against the strangers, they will be entitled to costs only on the ordi- 
 nary scale, as between party and party.{i) Therefore, where a bill 
 
 (i) Hallij. Laver, 1 Hare, 577 ; Amand (/) York v. Brown, 8 Jurist, 567 ; i 
 
 V. Bradbourne, 2 Ch. Ca. 138; et vide Coll. N. C- C. 260. [See post, p. 575, 
 
 post ; and Worrall v. Harford, 8 Ves. 8. note.] 
 
 (c) See Fearns v. Young, 10 Ves. 184; (g) Fearnes v. Young, 10 Ves. 184. 
 et post, 570, Ch. [Allowances.] (h) Ibid. 
 
 U) Ibid. (i) Dunlop v. Hubbard, 19 Ves. 205 ; 
 
 (c) Poole V. Pass, 1 Beav. 604 ; Hoi- Edenborough v. Archbishop of Canter- 
 
 foJd V. Phipps, 3 Beav. 442; 4 Beav. bury, 2 Russ. 94, 112. 
 475; Hampson v. Branwood, 1 Mad. 
 392, 395. 
 
 But see in New York, in the Surrogate's Court, where there is a fixed fee bill; 
 Halseyu. Van Amringe, 6 Paige, 12. A Master, before decree, cannot allow 
 counsel fees in the particular suit, unless directed to do so in the order of 
 reference. Hosack v. Rogers, ut supr. As to what costs may be allowed, see 
 Stephens v. Lord Newborough, ut supr. ; Ex parte Croxton, 13 Engl. L. & Eq. 402. 
 
828 OF COSTS. 
 
 had been filed against the trustees named in a will, to establish the 
 will and ascertain the rights of the parties, and the bill was dismissed, 
 on the ground that the will was void, the trustees were not allowed 
 their costs as between solicitor and client, for they were trustees of 
 a nullity. (A) However, in a late case, it was held by Lord Lang- 
 dale, M. R., that a trustee, acting hond fide under a will, which 
 turned out to be invalid, was entitled to be indemnified out of the 
 testator's personal estate. (Z) 
 
 Again, where a person who has been named a trustee in an instru- 
 ment is made a party to a suit respecting the trust, and he disclaims 
 by his answer, and the bill is then dismissed against him, he is en- 
 titled only to the ordinary costs, as between party and party ; for 
 his own answer shows, that he does not fill the character of a trustee, 
 but only that of an ordinary party. (m) And it is immaterial, that 
 the person so disclaiming is continued as a party up to the hearing 
 of the cause. (w)(l) 
 
 r*'ifi'71 *However, where a trustee in a suit with strangers has ob- 
 ^ -I tained his costs as usual between party and party only, he 
 will be entitled to reimbursement out of the trust fund for all extra 
 costs properly incurred, and such a claim may be allowed him under 
 the head of just allowances. (o) And on the same principle, where a 
 trustee fails in a suit with a stranger, and is consequently cast in 
 costs, yet if the suit, or the defence to it, were reasonable and 
 proper, and not occasioned by the misconduct of the trustee, he will 
 be entitled to retain the amount of the costs so paid out of the trust 
 funds in his hands ;(p) although, if there be no available funds in 
 his hands, or under the control of the court, the trustee will have no 
 personal remedy against the cestui que trusts to recover the costs 
 which he may have paid. (5') 
 
 The costs, as well as the charges and expenses of trustees, when 
 properly incurred, constitute a charge or lien on the trust estate in 
 
 {k) Mohun v. Mohun, 1 Sw. 201. (0) Amand v. Bradbume, 2 Ch. Ca. 
 
 Q) Edgecombe v. Carpenter, 1 Beav. 138 ; fiamsden v. Langley, 2Vern. 536; 
 
 171. see Fearns v. Young, 10 Ves. 184; Hill 
 
 (m) Norway v. Norway, 2 M. & K. v. Magan, 2 Moll. 460 ; Edgecombe v. 
 
 278; Bray v. West, 9 Sim. 429; over- Carpenter, 1 Beav. 171. 
 
 ruling Sherratt v. Bentley, 1 R. & M. (p) See Edgecombe v. Carpenter, 1 
 
 655. Beav. 174. 
 
 (n) Bray u. West, 9 Sim. 429. (g) Moliun v. Mohun, 1 Sw. 201; 
 
 Adair v. Shaw, 1 Sch. & Lef. 280. 
 
 (1) A consignee, or agent, who receives and holds property for the benefit of 
 others, butwho is not appointed a trustee by deed, cannot have his costs, as between 
 solicitor and client of a suit brought by parties having conflicting claims to the 
 property in his hands; but he is in the same situation as a plaintiff in a bill of 
 interpleader, who is entitled to costs only as between party and party. Dunlop 
 V. Hubbard, 19 Ves. 205. 
 
OF COSTS. 829 
 
 their favor ;' and they will not be compelled to part with the legal 
 estate, until their claim is discharged, (r) But this privilege does 
 not in general extend to solicitors, or other persons, employed by 
 the trustees; and such persons will be confined to their personal 
 remedy against the trustee, by whom they were employed, (s) How- 
 ever, any part of the trust estate which may be actually realized or 
 recovered by the suit in which the solicitor was employed, will be 
 subject to his lien for the costs of the suit.(i) 
 
 Where a bill of costs is paid by a trustee out of his own pocket, 
 he will not be allowed to charge interest on the amount paid.(M) 
 
 Where at the hearing the costs of a party, or class of parties, 
 have been ordered to be taxed as between solicitor and client, the 
 same principle of taxation will in general be followed in the subse- 
 quent proceedings, although a different state of circumstances may 
 then exist.(a;) And a different principle of taxation will never be 
 adopted upon a subsequent application by petitwn.{y) It may be 
 observed, however, that the court will not consider itself bound by a 
 previous order for the taxation of costs as between solicitor and 
 client, where that order was obtained upon petition and hy consent.{z) 
 If the suit be occasioned by any doubt or difficulty as to the general 
 construction of a will, the rule is that the costs shall be defray- (-^crqt 
 ed out of *the testator's general residuary personal estate. (a)^ L -■ 
 
 (r) Worrall v. Harford, 8 Ves. 4, 8; Pr. 971; Massiet). Drake, 4 Beav. 433 ; 
 Hall V. Laver, 1 Hare, 577; see Ex and see Gaunt i;. Taylor, 2 Beav. 347. 
 parte James, 1 D. & Ch. 272. [Jones -u. (»/) Massie v. Drake, 4 Beav, 433. 
 Dawson, 19 Alab. 675.] _ (z) 2 Dan. Ch. Pr. 971; 3 Id. 76. 
 
 (s) Ibid. ; and see Lawless v. Shaw, (a) Studholme v. Hodgson, 3 P.Wms. 
 1 Ll.&G. 154; 5 CI. & Fin. 129. [Jones 303; Joliffe v. East, 3 Bro. C. C. 27; 
 V. Dawson, 19 Alab. 678.] Nisbet v. Murray, 5Ves. 158; Commis- 
 
 (t) Bozon V. BoUand, 4 M. & Cr. sioners of Char. Donations v. Cotter, 1 
 354; Hall v. Laver, 1 Hare, 578. Dr. & W. 498; Fergusson v. Ogilvy, 2 
 
 («) Gordon v. Trail, 8 Price, 416. Dr. & W. 555; Shuttleworthw. Howarth, 
 
 [x) Trevevant v. Frazer, 2 Dan. Ch. Cr. & Ph. 228; Thomason v. Moses, 5 
 
 Beav. 77. 
 
 ' Jones 1). Dawson, 19 Alab. 675; Cecil v. Korbman, stated 1 Binn. 134; Barker 
 V. Parkenham, 2 Wash. C. C. 142. Not where their estate has terminated: Bel- 
 linger V. Shafer, 2 Sandf. Ch. 293. In Malins v. Greenway, 7 Hare, 391, where 
 trustees had severed in pleading, it seems properly, and there were charges 
 against one not in his character of trustee, from v?hich costs arose, and he 
 afterwards died, it was held that, whatever might be the general rule, he had 
 not acquired any lien on the fund for the costs; and a petition of his representa- 
 tives, that his costs might be taxed, was refused. In Carow v. Morell, 2 Edw. 
 Ch. 56, the costs of an administrator, who was removed after a suit commenced 
 against him, were allowed out of the estate. 
 
 2 Floyd V. Barker, 1 Paige, 480; Bryant v. Blackwall, 15 Engl. L. & Eq. 76; 
 Butts V. Genung, 5 Paige, 254. See under the Trustee Relief Acts (ante, p. 543, 
 note), Re Harris's Will, 8 Engl. L. & Eq. 99. It has been held underthose acts 
 
830 OF- COSTS. 
 
 And the same rule applies, although the difficulty concerns the real 
 estate only. (5) 
 
 But if the question affect solely a particular trust fund, which has 
 been separated from the general residue, the costs must then be 
 borne by the fund respecting which the question has arisen. (e) 
 
 Where the trustees are indebted to the trust estate, the amount 
 of the costs to be paid to them by the cestui que trusts may be set 
 off pro tanto against the deht.{d) But as we have already seen the 
 bankruptcy of a trustee will not disentitle him to his costs as against 
 the cestui que trusts.{e) And where a trustee, who is indebted to 
 the estate, is made a party to a suit, and he then becomes bankrupt, 
 and obtains his certificate, the costs incurred before the banltrwptcy 
 will be set off against the debt due from him, but he will be entitled 
 to receive his costs subsequently to the bankruptcy, without any de- 
 duction or set-off in respect of the debt, for the debt was extinguished 
 by the proof under the bankruptcy and the certificate. (/) 
 
 The costs of trustees, who are brought before the court by petition, 
 under the summary jurisdiction conferred by statute, will be given 
 them out of the trust estate ; as in the case of applications with 
 respect to charities, or for, a conveyance or the appointment of new 
 trustees on the bankruptcy, infancy, or lunacy, &c., of the existing 
 trustees.(^) But the court in such cases has no jurisdiction to award 
 costs out of the trust estate to any other parties than the trustees ;(A) 
 and the power to give the trustees their costs, exists only where ex- 
 pressly provided by the statute,(i) although a summary application, 
 
 (6) Ripley t>. Moysey, 1 Keen, 579. Gibbs, 8 Jurist, 266 ; ante [Bankruptcy 
 
 (c) Jenour v. Jenour, 10 Ves. 562; of Trustees], p. 533. 
 
 and see Shaw v. Pickthall, Dan. 92; (/) Ibid. [Gotten u. Clarke, 13 Engl. 
 
 Duke of Manchester v. Bonham, 3 Ves. L. & Eq. 377.] 
 
 61 ; King v. Tayler, 5 Ves. 809. (g) Ex parte Cant, 10 Ves. 554; Re 
 
 (d) Harmer v. Harris, 1 Russ. 155; Bedford Charity, 2 Sw. 532; Ex parte 
 Samuel v. Jones, 2 Hare, 246 ; Gibbons Pearse, T. & R. 225 ; Ex parte Whitley, 
 V. Hawley, Id. note. 1 Deao. 478; Re King, 10 Sim. 605; 
 
 (c) Samuel v. Jones, 2 Hare, 246 ; vide supra, p. 187, 290. 
 Gibbons u. Hawley, Id. note; Ex parte (fe) Re Bedford Charity, 2 Sw. 532. 
 
 (i) Re Isaac, 4 M. & Cr. 14. 
 
 that the costs of an application by the tenant for life, come out of the corpus. 
 Ross's Trust, 2 Engl. L. & Eq. 148; Fields' Settlement, 13 Engl. L. & Eq. 11. 
 Contra: Bangley's Trust, 13 Engl. L. & Eq. 28. The general rule does not, how- 
 ever, apply to a suit under an appointment, so as to throw the costs on the un- 
 appointed share ; they are to be apportioned between the two : TroUope v. Rout- 
 ledge, 1 De G. & Sm. 662; 11 Jur. 1002. 
 
 Costs will not be allowed out of the fund to other parties, to the exclusion of 
 the executor's commissions and expenses : Halsey v. Van Araringe, 6 Paige, 18. 
 The trustees are always, in doubtful oases, entitled to their costs on a bill for the 
 construction of a will: Irving v. De Kay, 9 Paige, 521 ; Rogers v. Ross, 4 J. C. R. 
 608 ; see ante, note to page 543. 
 
OF COSTS. 831 
 
 which the court has no jurisdiction to entertain, may be refused with 
 costs. (A;) 
 
 The payment of a bill of costs by a trustee, will not preclude the 
 cestui que trust from subsequently applying to the court for an order 
 for the taxation of the bill, wherever the right to make that appli- 
 cation would exist, if the payment of the bill had been made by the 
 cestui que trust himself. (Z) But after the cestui que trust has acqui- 
 esced for a considerable period in the payment of a bill of costs by 
 his trustee, he will not be allowed to question the propriety of the 
 payment, or to apply for a taxation, at all events as against the 
 solicitor, whatever may be his rights as against the trustee, (m) And 
 now, the recent act 6 & 7 Vict. c. 73, s. 41, precludes the court in 
 any case whatever from ordering the *taxation of a bill of .q.. 
 costs, which has been paid for twelve months.{n) And it has '- -^ 
 been decided, that this section applies to the payment of a bill of 
 costs by a trustee, so as to preclude any subsequent taxation of the 
 costs as against the solieitor.io) However, if a trustee pay a solici- 
 tor's bill improperly, and neglect to have the bill taxed in due time, 
 there is nothing in the act to prevent the Court of Chancery from 
 disallowing to the trustee the whole or part of the payment so made 
 by him, and from ascertaining by taxation, if necessary, what is a 
 proper sum to be allowed to the trustee for the payment.(p) And 
 this leads to the observation, that a trustee is not at liberty to pay 
 the amount of bills of costs without question or consideration. But 
 where the bills contain taxable items, and it is the ordinary course 
 to have them taxed, it is his duty to have the taxation made, at the 
 risk of having the payment of the costs disallowed him in passing his 
 accounts.(g') And where the payment of a bill of costs by a trustee 
 is made the subject of complaint, it will be referred to the Master in 
 the first instance, to inquire into the propriety of the payment, and 
 the point may be ultimately brought before the court, by excepitions 
 to the Master's report.(r) However, in some cases, the Master, 
 without proceeding to a regular taxation of the bills of costs paid by 
 the trustee, will hand them over to the proper officer to be moderated, 
 and the difference between the amount of the bills thus moderated, 
 and those actually paid by the trustees, will be disallowed.(8) 
 
 (A) Ibid. (p) Per Lord Langdale, M. R., 5 
 
 (J,) Hayard v. Lane, 3 Mer. 291; Beav. 429. 
 
 Groves v. Sansom, 1 Beav. 297 ; and (g) Fountaine v. Pellet, 1 Ves. jun. 
 
 see 6 & 7 Vict. c. 73, s. 39. 337, 343 ; Johnson v. Telford, 3 Russ. 
 
 (m) Groves v. Sansom, 1 Beav. 297; 477. 
 
 see Johnson v. Telford, 3 Russ. 477. (r) Ibid. 
 
 (n) Binns v. Hey, 5 Beav. 429, stated. (s) Johnson v. Telford, 3 Russ. 477. 
 
 (o) Re Downes, 5 Beav. 427. 
 
832 OP ALLOWANCES TO TEUSTBBS. 
 
 The application for the taxation of a bill of costs may be made 
 by one of two executors or trustees.(^) 
 
 A trustee, against -whom a decree is made for breach of trust, will 
 be charged with only one set of costs. And, therefore, where the 
 bill was filed on behalf of some of the cestui que trusts only, and 
 the others were made defendants, the trustee was ordered to pay the 
 plaintiff's costs only, and those of the other defendants were directed 
 to be paid out of the trust fund.(M) 
 
 [*570] ^CHAPTER V. 
 
 OF ALLOWANCES TO TRUSTEES. 
 
 Trustees have an inherent right to be reimbursed all expenses 
 properly incurred in the execution of the trust, and no express de- 
 claration in the trust instrument is requisite to create that right.' 
 Lord Eldon has said, that " it is in the nature of the office of trus- 
 tee, whether expressed in the instrument or not, that the trust pro- 
 perty shall reimburse him all the charges and expenses incurred in 
 the execution of the trust."(a) And in a modern case,(6) Lord Cot- 
 tenham stated it " to be quite clear, according to the rule, which ap- 
 plies to all cases of trust, that if necessary expenses are incurred in 
 
 (0 Hayard v. Lane, 3 Mer. 285; see (a) Worrall v. Harford, 8 Ves. 8. 
 
 Lockhart v. Hardy, 4 Beav. 224. (6) Att.-Gen. v. Mayor of Norwich, 2 
 
 (u) Hosking v. NichoUs, 11 Law M. & Cr. 406, 424. 
 Journ. N. S., Chanc. 230. 
 
 ■ Burr-u. MoEwen, Baldwin C. C. 154; Pennell's App., 2 Barr, 216; Hutton v. 
 Weems, 12 Gill & John. 83; Myers v. Myers, 2 McCord's Ch. 43; Perkins u. 
 Cranshaw, 1 Hill's Eq. 350; Morton v. Adams, 1 Strobh. Eq. 76; Miller u. Bever- 
 leys, 4 Henn. & Munf. 415; Miles v. Bacon, 4 J. J. Marsh, 457; Ames v. Dow- 
 ning, Bradf. Surr. R. 321; Egbert v. Brooks, 3 Harrington, 310; Morton v. Bar- 
 rett, 23 Maine, 257. So though the trust be subsequently declared void, if they 
 have acted in good faith. Hawley v. James, 16 Wend. 61; Re Wilson, 4 Barr, 
 430; Stewart v. McMinn, 5 Watts & Serg. 100. So advances for the benefit of 
 the trust fund will be reimbursed ; Altimus v. Elliott, 2 Barr, 62 ; and even, it 
 seems, as against creditors, advances made to the cestui que trust on the faith of 
 the funds. Iredell v. Langston, 2 Devereux' Eq. 594. See as to allowances for 
 costs and expenses in suits, with regard to the trust estate, ante, p. 551, 565, and 
 notes. 
 
 Where a trustee, however, neglects to keep proper accounts of his expendi- 
 tures, the lowest estimate will be put on them in remunerating him therefor, 
 McDowell V. Caldwell, 2 McCord's Ch. 43. Every intendment of fact, indeed, is 
 to be made against a trustee who keeps none, or very imperfect accounts. Ex 
 parte Cassel, 3 Watts, 442 ; and see Green v. Winter, 1 J. C. R. 27. 
 
OF ALLOWANCES TO TRUSTEES. 833 
 
 the execution of a trust, or in the performance of duties thrown on 
 any parties, and arising out of the situation in which they are placed, 
 such parties are entitled, without any express provision for that pur- 
 pose, to make the payments required to meet those expenses, out of 
 the funds in their hands belonging to the trust. Such is the rule of 
 courts of equity, and such also is the rule at common law."(c) And 
 it was laid down by Sir J. Leach, V. C, in an earlier case, that a 
 trustee is, of course, entitled to all reasonable expenses which he may 
 have incurred in the conduct of the trust, and he requires no order 
 for that purpose. (ci) 
 
 It is clear, therefore, that trustees will be justified in retaining out 
 of the trust estate all expenses properly incurred in the discharge of 
 the trust ; and no order or direction of the court is requisite to sanc- 
 tion that step, and the absence of the clause, usually inserted in the 
 trust instrument for the reimbursement and indemnity of the trus- 
 tees, is also perfectly immaterial. 
 
 However, where a decree for an account is made against trustees, 
 they should take care that the usual direction to the Master to make 
 just allowances, is not omitted in drawing up the decree, for the 
 Master cannot make such allowances without that direction. (e) But 
 under a direction to make just allowances, the Master may consider 
 and allow all extra costs, charges, and expenses incurred by a trustee. 
 And money expended by trustees in taking legal opinions, and pro- 
 curing directions for the due execution of the trust,(/) as also the 
 expenses of effecting sales,(^) may be allowed by the Master under 
 this head. And although a trustee under a will is allowed a commis- 
 sion of five per cent, on the rents and profits, or an annuity for his 
 trouble, he will not, for that reason, lose the right to his charges and 
 expenses under the head of just allowances. (A) 
 
 In all cases, the propriety or impropriety of particular payments 
 made, or expenses incurred, by a trustee, will depend on the extent 
 of his powers of management, the nature of the trust property, and 
 the relative position *of the cestui que trusts ; these, and a rifrr,-,-, 
 variety of other circumstances, which necessarily vary in -* 
 
 every case, will all be taken into consideration in determining the 
 question ; and it is extremely difficult to lay down any general rules 
 upon this point. 
 
 Where a trustee is expressly authorized to incur certain specified 
 expenses, no question can of course arise as to his right to have such 
 
 (c) See Rex v. Inhabitants of Essex, (g) Crump v. Baker, 18 Ves. 285. 
 
 4 T. R. 591 ; Rex v. Commissioners of Qi) Webb v. Earl of Shaftesbury, 7 
 
 Sewers, 1 B. & Adolph. 232. Ves. 480; Wilkinson v. Wilkinson, 2 S. 
 
 {d) Brocksopp v. Barnes, 5 Mad. 90. & St. 237 ; Fountaine v. Pellet, 1 Ves. 
 
 (e) Howell v. Howell, 2 M. & Cr. 478. jun. 337. 
 
 (/) Fearns v. Young, 10 Ves. 184. 
 
 53 
 
834 OF ALLOWANCES TO TBUSTEES. 
 
 payments allowed. And where no such special power is conferred 
 by the trust instrument, a trustee under a will of real estate, who 
 has general discretionary powers to let and manage or superintend, 
 will be entitled to all the ordinary expenses requisite for keeping up 
 the estate, such as wages, and salaries to servants, and audit dinners 
 to the tenants, as well as for the requisite repairs to the house and 
 other buildings, and for rates and taxes. («y And sums expended 
 in building farm-houses, and in draining and manuring, and other 
 improvements of that nature, will also be allowed to a trustee, who 
 is invested with similar general powers of management.(A) 
 
 However, we^have already seen, that the cestui que trust for life, 
 who is in possession of the trust estate, is liable to all the current 
 expenses attending the enjoyment of the property — such as the rates 
 and taxes, and all necessary repairs, and the trustees will not be 
 justified in defraying those expenses out of the general trust fund ; 
 and if they do so, it will be at the risk of having the payments dis- 
 allowed.(0' 
 
 Where a trustee resides in the mansion-house by the testator's 
 direction, he will be allowed the rates and taxes, although he has the 
 benefit of residing in the house, (m) However, a trustee who em- 
 ploys a park-keeper, or other servant, for his own purposes, must 
 pay him himself, and will not be allowed his wages out of the estate.(M) 
 And so a trustee, with the most ample powers of management, can- 
 not of his own authority keep up a mere pleasure establishment, such 
 as gamekeepers, &c. ; and before such expenses are allowed him, it 
 will be referred to the Master to ascertain whether such an esta- 
 blishment be necessary. (o) A trustee acting without an express 
 authority will not be allowed the expense of pulling down and re- 
 building a house.(^) 
 
 A payment made by a trustee upon his own responsibility will be 
 allowed to him in his accounts, although it was of a doubtful charac- 
 ter, if it be ultimately approved of by the court. And this is in ac- 
 cordance with the general rule, that what the court would allow upon 
 
 (i) Fountaine v. Pellet, 1 Ves. jun. Nairn v. Majoribanks, 3 Russ. 582; 
 
 337; Webb v. Earl of Shaftesbury, 7 Caldecott u. Brown, 2 Hare, 144; ante, 
 
 Ves. 480; Bridge v. Brown, 2 N. C. C. p. 394, 395, and notes. [Jones v. Daw- 
 
 181, 191. son, 19 Alab. 673.] 
 
 (ft) Bowes V. Earl of Strathraore, 8 (m) Fountaine v. Pellet, ubi supra. 
 Jurist, 92. (n) 1 Ves. jun. 343. 
 
 {V) Fountaine v. Pellet, 1 Ves. jun. (o) Webb v. Earl of Shaftesbury, 7 
 
 342; Bostock v. Blakeney, 2 Bro. C. C. Ves. 480, 488. 
 653 ; Hibbert v. Cooke, 1 S. & St. 552; (p) Bridge v. Brown, 2 N. C. C. 191. 
 
 > Ante, 395, 429, and notes. * See ante, 394, 395, and notes. 
 
OF ALLOWANCES TO TRUSTEES. 835 
 
 a suit, shall be good without suit.(9') For instance, where a trustee 
 had paid a sum of money to relieve the estate from a liability on a 
 lease, which was a burden to the estate, the court considered this a 
 necessary expense, and allowed the payment.(»-)' And a payment 
 by trustees of their own authority for the *maintenance of r^rfrg-i 
 an infant will be allowed, if afterwards approved of by the ^ -^ 
 court. («)' 
 
 And so it seems, that a payment, made by trustees upon the opi- 
 nion of their legal adviser, will be allowed them in their accounts, 
 although the court may afterwards decide against the validity of the 
 claim, in satisfaction of which the payment was made. Thus in a 
 case, where an executor without due inquiry had paid the whole 
 amount secured by a promissory note of his testator, when 2001. of 
 the amount had in fact been paid off, he was disallowed this 2001. in 
 passing his accounts ; but the Master of the Rolls in the course of 
 his judgment said, that if the executor had taken advice, and been 
 advised by any gentleman of the law in this country, that he was 
 bound to make the payment, he would not have held him liahle.{t) 
 
 All payments, properly made by trustees out of their own pockets 
 in discharging the duties of their office, will unquestionably be al- 
 lowed them, — such as postage, travelling expenses, &c.,(m) and the 
 usual expenses attending a sale required by the trust. (a;) 
 
 And where the fines, and other necessary expenses attending the 
 renewal of leaseholds or copyholds, have been paid by the trustees, 
 they will of course be entitled to a repayment,(«/) and they will have 
 
 (g) See Balsh ■». Higham, 2 P. Wms. (t) Vez v. Emery, 5 Ves. 141, 144. 
 453. [Button v. Weems, 12 G. & J. (u) Webb v. Earl of Shaftesbury, 7 
 
 83 ; Gray v. Lynch, 8 Gill, 403.] Ves. 484 ; Brooksopp v. Barnes, h Mad. 
 
 (r) 1 Ves. jun. 343. 90; see Ex parte Lovegrove, 3 Deac. 
 
 Is) Barlow v. Grant, 1 Vern. 255; & Ch. 763. 
 Franklin t). Green, 2 Vern. 137; ante, p. (x) Crump u. Baker, 18 Ves. 285. 
 [395, note; 399, note, 2.] (2/) James v. Dean, 11 Ves. 396; 
 
 Randall v. RusssU, 3 Mer. 196. 
 
 ' So a trustee will be allowed in his account for the discharge of incumbrances 
 on the estate. Murray v. De Rottenham, 6 J. C. R. 62 ; Mathew v. Dragaud, 3 
 Desaus. 25: Pennell's App., 2 Barr, 216; Freeman v. Tompkins, 1 Strobh. 
 Eq. 53. 
 
 2 In Nelson v. Dunscombe, 9 Beav. 211, 10 Jur. 399, it was held that where 
 a trustee had properly expended moneys for the protection and safety of an 
 adult cestui que trust, at a time when the latter was incapable of taking care of 
 himself, though before a commission de lunatico inquirendo had issued, they 
 should be allowed in his account; as also the expenses of the removal of the 
 cestui que trust to an asylum and the expenses of a commission. 
 
 It is no objection to the allowances and disbursement of a trustee, that they 
 were made without the consent of his co-trustee. Miller v. Beverleys, 4 Henn. 
 &Munf. 415. 
 
836 OF ALLOWANCES TO TKUSTEBS. 
 
 a lien on the trust estate for the amount, and will not be compelled to 
 convey to the cestui que trusts, until that repayment is made.(s) 
 And so where a trustee has advanced money out of his own pocket, 
 in order to relieve the trust estate from charges bearing heavy in- 
 terest, he will be repaid the amount out of the estate.(a) And in 
 these cases trustees will also usually be entitled to interest at four 
 per cent, on the money advanced by them. (J) Although it is con- 
 trary to the practice to allow interest on bills of costs paid by a 
 trustee pending a suit respecting the trust estate. (c) 
 
 The duty of trustees, with regard to the payment of bills of costs 
 for legal proceedings relating to the trust estate, has been considered 
 in the preceding chapter, as well as the extent to which such pay- 
 ments by them will be allowed. (c^) 
 
 And we have also seen, that a trustee under the head of "just 
 allowances" will be entitled to retain out of the trust fund his extra 
 costs of a suit beyond the taxed costs, and also the costs, which he 
 may have been compelled to pay in any suit or action, provided the 
 proceedings have been necessary or proper, (e) 
 
 Trustees are unquestionably entitled to employ a solicitor for their 
 
 assistance and guidance in the administration of the trust.(/) And 
 
 ^ also *in case of any doubt or difficulty to take the opinion 
 
 L J of counsel ;(^) and they will be allowed those expenses out 
 
 of the trust estate. 
 
 And where the accounts are of an intricate and complicated cha- 
 racter, the trustees will be entitled to the assistance of an accountant, 
 and to charge the expense of employing him upon the trust estate.(A) 
 And if there must necessarily be considerable difficulty and trouble 
 in realizing or collecting the trust property, they will be justified in 
 employing a collector or agent for that purpose — as where part of 
 the trust property consisted of fifty houses, thirty-four of which were 
 let at weekly rents :(«') or where there were outstanding debts to a 
 large amount to be got in,(yl;) or the trustee resided at a considerable 
 
 (2) Trottu. Dawson, 1 P. Wras. 780; (/) Macnamara u. Jones. Dick. 587; 
 
 7 Bro. P, C. 266 ; see Fearns v. Young, Johnson v. Telford, 3 Rusa. 477 ; see 
 
 •10 Ves. 184; supra, p. 439. Burge v. Brutton, 2 Hare, 373, 378. 
 
 (a) Small v. King, 5 Bro. P. C. 72. (g-) Fearns v. Young, 10 Ves. 184; 
 
 [See note to the preceding page.] Poole v. Pass, 1 Beav. 604. [See ante, 
 
 (6) Small V. King, 5 Bro. P. C. 72. p. 565, note.] 
 
 (c) Gordon v. Trail, 8 Price, 416. (A) Henderson v. M'lver, 3 Mad. 275. 
 
 (d) See preceding Chapter, Sect. (i) Wilkinson v. Wilkinson, 2 S. & 
 [Costs] p. 568. ' St. 237; see Davis v. Dendy, 3 Mad. 
 
 (e) Ibid.; Amand u. Bradbourne, 2 170. 
 
 Ch. Ca. 138; Rarasden 2;. Langley, 2 (Jc) Hopkinson v. Roe, 1 Bear. 180; 
 
 Vern. 536 ; Hill v. Magan, 2 Moll. 460 ; Weiss v. Dill, 3 M. & K. 26; see Tur- 
 
 see Fearns v. Young, 10 Ves. 184; 3 nexv. Corney, 5 Beav. 515. 
 Dan. Ch. Pr. 58. 
 
OP ALLOWANCES TO TRUSTEES. 887 
 
 distance from the trust property,(?) and trustees have been allowed 
 the expense of an agent and collector, although an annuity was given 
 them for their trouble in executing the trust. (wi) 
 
 However, it seems that they will not be allowed any payment for 
 commission to an accountant or collector, exceeding two and a half 
 per cent. :(n) and in the case alluded to, Sir J. Leach, M. R., had 
 some doubts whether any allowance at all ought to have been made.(o) 
 Indeed, as a general rule, the collection and realization of the trust 
 property is a duty which the trustees take upon themselves on their 
 acceptance of the trust, and which they will not, except under special 
 circumstances, be allowed to put upon another.(_p) 
 
 The usual brokerage charges for the necessary transfer of stock, 
 &c., to the cestui que trusts, will also be allowed to the trustees •,{q) 
 but not a charge for a transfer which is not required.(?") And where 
 the trust fund is ordered to be transferred into court, the broker who 
 is employed by the Accountant-General, and whose charge is 11. Is., 
 should be employed to make the transfer, and any larger amount 
 paid by the trustees for brokerage on the transfer, will not in general 
 be allowed.(s) 
 
 Where from necessity or convenience a trustee is justified in keep- 
 ing any part of the trust property in his possession, and without any 
 negligence on his part, it is lost by robbery, he will not be held re- 
 sponsible for the loss, but will be allowed the amount in passing his 
 accounts, and this amount may be proved by the trustee's own aifi- 
 davit, for it would frequently be difficult to obtain any other proof.(i)' 
 And so where the trust funds are properly deposited with a banker 
 
 (i) Davis V. Dendy, 3 Mad. 170; (r) Hopkinson t). Roe, 1 Beav. 183. 
 
 Godfrey v. Watson, 3 Atk. 518. (s) Hopkinson v. Roe, ubi supra. 
 
 (m) Wilkinson v. Wilkinson, 2 S. & (<) Morley v. Morley, 2 Ch. Ca. 2 ; 
 
 St. 237. [Kennedy's App., 4 Barr, 150 ; Knight u. Earl of Plymouth, 3 Atk. 480; 
 
 Cairns v. Chabert, 9 Paige, 164; Whit- Jones v. Lewis, 2 Ves. 240; 2 Fonbl. 
 
 ted V. Webb, 2 Dev. & Batt. Eq. 442.] Eq. B. 2, Ch. 7, S. 4; 2 Story's Eq. Jur. 
 
 (n) Weiss v. Dill,. 3 M. & K. 26. J 1269. [Furman v. Coe, 1 Caines, C. E. 
 
 (o) 3 M. & K. 27; and see Stack- 96. If the trustee be dead, his represen- 
 
 poole V. Stackpoole, 4 Dow. P. C. 226. tative may set up the defence, though 
 
 (p) See Weiss v. Dill, 3 M. & K. 26. it want the corroboration of the trustee's 
 
 (g) Jones v. Powell, 6 Beav. 488. oath. Ibid.] 
 
 1 So a trustee is not responsible for the escape of slaves, unless negligence is 
 shown. Chaplin v. Givens, Rice's Eq. 132. In Pennsylvania, it has been held 
 that where a trust has been accepted on the terms of receiving a stipulated re- 
 ward, the trustee is liable in the same manner as an ordinary bailee for hire. Ex 
 parte Cassel, 3 Watts, 442. But in Twaddell's Appeal, 5 Barr, 15, and Nyce's 
 Estate, 5 Watts & Serg. 254, a more liberal doctrine was held ; and see Gray v. 
 Lynch, 8 Gill, 403. So in Bryant v. Russel, 23 Pickering, 546, the rule was said 
 to be, that trustees acting in good faith, and making an honest mistake, were not 
 answerable personally for a loss accruing therefrom. 
 
838 or ALLOWANCES TO TRUSTEES. 
 
 or agent, who fails, the trustee will be allowed the sum so lost.(M) 
 r*'i'74n ^^°^^ especially if the *author of the trust himself directs the 
 trustees to employ the person by whose failure the loss is oc- 
 casioned, (a;) 
 
 Every payment by a trustee out of the trust funds, which is not 
 expressly authorized by the trust instrument, or sanctioned by neces- 
 sary construction in order to the due performance of the trust, 
 amounts in effect to a breach of trust, and will be disallowed to the 
 trustee in passing his accounts ; and repeated instances of this will 
 be found in the preceding pages of this work. Thus an unauthorized 
 payment for the maintenance or advancement of infants,(^) or the 
 application of the trust funds on an improper investment,(2) or a 
 payment to a person not authorized to receive,(a) or incapable of 
 giving a discharge,(J) or a distribution to one or more of several 
 cestui que trusts (as a tenant for life), of a greater share than he is 
 strictly entitled to,(e)or in short any other misapplication or disposition 
 of the trust funds, will, as a general rule, be disallowed to the trustees. 
 
 Again, it has been already stated to be one of the first principles 
 of the court in dealing with trustees, that they shall not derive any 
 personal profit out of the trust estate. And on this principle, a trus- 
 tee will not be permitted to make any charge for his trouble or loss 
 of time, or for his services in the administration of the trust, unless 
 the trust instrument expressly empowers him to make such a 
 charge. (c^)(iy 
 
 (u) Knight V. Earl of Plymouth, 3 (2) Earl of Winchelsea v. Norcliffe, 
 Atk. 480; Jones v. Lewis, 2 Ves. 240; 1 Vern. 434. 
 
 Routh V. Howell, 3 Ves. 564 ; Belcher (a) Hodgson v. Hodgson, 2 Keen, 
 V. Parsons, Ambl. 219; Massey v. Ban- 704. 
 
 ner, 4 Mad. 416; see Clough v. Bond, (6) Dagley v. Tolferry, 1 P. Wms. 
 3 M. & Cr. 490, 6; Adams v. Claxton, 285; Phillips v. Paget, 2 Atk. 80; 
 6 Ves. 626 ; Freme v. Woods, 1 Taml. Davies v. Austen, 3 Bro. C. C. 178; Lee 
 172. u. Brown, 4 Ves. 369. 
 
 (z) Kilbee v. Sneyd, 2 Moll. 199; see (c) Howe v. Earl of Dartmouth, 7 
 Doyle V. Blake, 2 Sch. & Lef. 239, 245. Ves. 151 ; Dimes v. Scott, 4 Russ. 195, 
 
 (2/) Davies v. Austen, 3 Bro. C. C. 206. 
 178 ; Lee *. Brown, 4 Ves. 362 ; Wal- (d) Robinson v. Pett, 3 P. Wms. 249; 
 ker V. Wetherell, 6 Ves. 473 ; Andrews Brocksopp v. Barnes, 5 Mad. 90 ; Re 
 V. Partington, 3 Bro. C. C. 60. [Ante, Ormsby, 1 Ball & B. 189. 
 395, 399, notes; Bredin v. Dwen, 2 
 Watts. 95.] 
 
 (1) Trustees of real estate in the West Indies, who reside there for the manage- 
 ment of the estate, are an exception to this general rule : for they will be entitled 
 to charge a commission for their services, if personally resident there. Chambers 
 V. Goldwin, 5 Ves. 834 ; 9 Ves. 254. And so an e.vecutor and trustee in India 
 
 ' In the United States, in general, commissions are allowed to trustees, ex- 
 ecutors, guardians, &c., either by statute, or under the decisions of the courts. The 
 cases on this subject are so carefully and ably collected and discussed in Mr. 
 
OF ALLOWANCES TO TRUSTEES. 
 
 839 
 
 And where he is in any business or profession, he will not without 
 a similar authority be allowed any charge or remuneration for his 
 professional services or advice, or for loss of time, but only such 
 costs, charges, and expenses, as he has actually and properly paid 
 out of his own pocket.(e) For instance, a factor(/) or commission 
 agent,(^) acting as executor, cannot charge the estate for anything 
 done by him in the way of business. And it makes no difference, 
 that he acted as factor or agent for the testator up to the time of his 
 death, and was in the habit of charging the testator with the usual 
 commission in that character. Although he will of course be entitled 
 to receive and retain what may be due to him by way of commission 
 iov services performed in the testator's Ufetime.Qi) And so a surviving 
 partner being executor, is not entitled, *without express stipu- j-*5Y5-j 
 lation, to any allowance for carrying on the business for the 
 benefit of the estate.(i) And the same rule applies with equal force 
 to attorneys and solicitors, being trustees, and it has repeatedly been 
 determined, that such persons can only charge the trust estate with 
 the sums actually paid by them out of pocket.(7(;)(l) And it is im- 
 
 (e) Scattergood v. Harrison, Mos. 128; (A) Sheriffe v. Axe, 4 Russ. 33. 
 
 Sheriffe v. Axe, 4 Russ. 33; New v. (i) Burden v. Burden, 1 Ves. & B. 
 
 Jones, 9 Jarm. Byth. Conv. 338 ; Moore 170 ; Stocken v. Dawson, 6 Beav. 371. 
 
 D. Frowd, 3 M.&Cr. 45; Re Sherwood, (k) New v. Jones, 9 Jarm. Byth. 
 
 3 Beav. 338; CoUis v. Carey, 2 Beav. Conv. 338; Moore v. Frowd, 3 M. & 
 
 128. Cr. 45; Re Sherwood, 3 Beav. 338; 
 
 (/) Scattergood v. Harrison, Mos. Burge u. Brutton, 2 Hare, 373; Fraser 
 
 128. i;. Palmer, 4 Y.& Coll. 51 5. [ReWyche, 
 
 Cg-) Sheriffe v. Axe, 4 Russ. 33; 11 Beav. 209; Christophers v. White, 
 
 Hovey v. Blakeman, 4 Ves. 596. [So of 10 Beav. 523 ; Todd v. Wilson, 9 Beav. 
 
 an auctioneer, Kirkman v. Booth, 11 486.] 
 Beav. 273.] 
 
 vvill be allowed a commission of five per cent, on his receipts and payments, 
 Chettom v. Lord Audley, 4 Ves. 72, unless the testator has given him an ample 
 legacy for his trouble. Freeman v. Fairlee, 3 Mer. 24. But trustees in these 
 cases are regarded rather in the light of agents. 
 
 (1) S. P. Bainbrigge v. Blair, [8 Beav. 588]; 9 Jurist, 765, before Lord Langdale. 
 In this case, a solicitor, being trustee, had acted as solicitor, for himself and his 
 co-trustees, and his cestui que trusts, in various suits relating to the trust estate ; but 
 the court refused to direct an inquiry as to whether the services of the solicitor 
 had been beneficial to the trust estate, with a view to awarding him compensa- 
 tion; and apetition, presented (after a decree directing just allowances), for that 
 purpose, was dismissed with costs. [But in Cradock v. Piper, 1 Mac. & G. 668 ; 
 14 Jur. 97, a solicitor, who was also trustee, made a party to a suit respecting 
 the trust property, was allowed his usual professional costs, he having acted as 
 solicitor for himself and his co-trustees, and the costs not being increased thereby. 
 But it was held in Lincoln v. Windsor, 5Eng. L. & Eq. 230, that the rule in Cra- 
 
 Rawle's note to Robinson v. Pett, 2 Lead. Cas. Eq. pt. i. 333 (1st Am. ed.), that 
 it will be sufficient here to refer the reader thereto, for a full statement Of the 
 law on the subject. 
 
SJ:© or ALLOWANCES TO TRUSTEES. 
 
 material, that the trustee is only one of a partnership or firm of so- 
 licitors, but the costs out of pocket only will be allowed, although 
 the bill be made out in the name of the firm.(Z) However, where the 
 trustees, being solicitors, are resident and practice in the country, 
 and employ their London agent in professional business relating to 
 the trust, and the moiety of the costs has been paid by them as 
 usual to the town agent, they will be allowed those payments as 
 sums actually out of their pockets.(»i) Moreover, the rule in ques- 
 tion does not apply to a solicitor, who is a trustee, and who is made 
 a defendant to a suit as a trustee ; and a person in that situation 
 will be entitled to the usual trustees' costs of the suit, to be taxed as 
 between solicitor and client, although being a solicitor he had not 
 actually expended all those costs, and he will not be restricted to 
 such costs, &c., only, as he had actually paid out of his pocket.(w) 
 
 But trustees are unquestionably entitled to any benefit or profit, 
 which is expressly given to them by the testator ; as where a commis- 
 sion of five per cent.,(o) or an annuity, (p) or legacy,(5') is given to 
 the trustees for their trouble. (1) And so a trustee, who was directed 
 by the testator to reside in the mansion-house, was allowed the use 
 of the garden for his own benefit, but not to sell the produce.(r) 
 And an allowance given to a trustee will not cease upon the insti- 
 tution of a suit by him for the administration of the trust, for his 
 sevices as a ministerial person are still necessary.(s) 
 
 And where the testator expressly declares, that the trustees shall 
 be entitled to their charges, and remuneration for professional ser- 
 vices, or trouble, and loss of time, the general rule of the court will 
 
 (?) Collis V. Carey, 2 Beav. 128. (p) Fountaine v. Pellet, 1 Ves. jua. 
 
 (m) Burge v. Brutton, 2 Hare, 373, 337 ; Wilkinson v. Wilkinson, 2 S. & 
 
 378. St. 337. 
 
 (n) York v. Brown, 1 Coll. N. C. C. (5) Robinson v. Pett, 3 P. Wms.249. 
 
 260. if) Fountaine v. Pellet, 1 Ves. jun. 
 
 (0) Webb V. Earl of Shaftesbury, 7 342. 
 
 Ves. 480. (s) Baker v. Martin, 8 Sim. 25. 
 
 dock V. Piper, was confined to suits respecting the trust property, and did not apply 
 to the case of a solicitor acting for himself and his co-trustees in the general ad- 
 ministration of the trust, without the intervention of the court. Though there be 
 an express agreement that professional charges shall be allowed between the so- 
 licitor trustee and his cestui que trust, yet it will not be sustained, unless it appears 
 that the cestui que trust had clear knowledge of the ordinary rule, and proper 
 protection in the way of professional advice ; even though there has been a re- 
 lease : Stanes v. Parker, 9 Beav. 385; Todd v. Wilson, Id. 486; Re Wyohe, 
 11 Beav. 209. See, on this subject, articles in 14 Jur. pt. ii. p. 45; 14 Law Mag. 
 N. S. 297. It is to be observed that this doctrine, being founded on that which 
 refuses compensation to trustees in general, is of little applicability in the United 
 States.] 
 
 (1) The effect of a legacy to a trustee for his trouble, has already been con- 
 sidered. Ante, Ch. [Disabilities of Trustees, p. 535.] 
 
OF ALLOWANCES TO TRUSTEES. 841 
 
 be excluded, and those charges will be allowed the trustees in their 
 accounts : for such a direction amounts to a legacy to the trustees. (<) 
 Thus, in a recent case, a testator devised his real and leasehold 
 estates to trustees, and declared that his trustees respectively should 
 be entitled to have and receive out of the trust-moneys all costs, 
 charges, and expenses, fees to counsel, and for professional assistance, 
 and loss of time, that might be paid, incurred, *sustained, or p^p»^-, 
 occasioned in the execution of the trusts. One of the trus- ^ J 
 tees was a land agent and surveyor, who took upon himself the active 
 management and sale of the trust estates, and he presented a peti- 
 tion, praying an allowance for his services at two guineas a day ; Lord 
 Langdale, M. R., held, that upon the terms of the will he was en- 
 titled to remuneration for his loss of time, and his Lordship referred 
 it to the Master to settle the amount.(M) And the same rule applies 
 to solicitors, who are made trustees of a will, and who are empow- 
 ered by the testator to charge for their professional services, (x) 
 
 So, where the trust is created by deed, the trustees may, by ex- 
 press contract, entitle themselves to remuneration for trouble, &c., 
 as well as to their professional charges. (y) Thus, where the trust 
 deed declared that the trustee was thereby authorized and empowered 
 to retain and receive out of the trust-moneys his usual professional 
 costs and expenses, which might arise or be incurred in carrying into 
 execution the trusts, or in prosecuting or defending any suits, as if 
 he had not been the trustee thereof. Lord Langdale, M. R., held, 
 that the trustee, by virtue of the special contract, was entitled to be 
 paid his bill of costs as a solicitor in a suit respecting the trust. (z) 
 
 However, the court will regard with great suspicion a contract be- 
 tween a trustee and his cestui que trust, by which the former secures 
 any benefit to himself; and if it be obtained by fraud or any im- 
 proper means, it will undoubtedly be set aside. Thus, where execu- 
 tors and trustees under a will refused to prove the will, or to suffer 
 the cestui que trust to take out administration, until he had executed 
 a- deed binding himself to pay 1001. to one of the trustees, and 200?. 
 to the other, in addition to their legacies. Lord Hardwicke declared 
 the deed to be unduly obtained, and refused to allow those sums to 
 the trustees, (a) 
 
 And the contract must be fully performed on the part of the 
 trustee by the execution of the trust, or he will not be sufiTered to 
 take any benefit from it. As where an executor and trustee con- 
 sented to act on payment of 100?., and he died before the trust was 
 
 (<) Ellison V. Airey, 1 Ves. 115. (jr) Moore v. Frowd, 3 M. & Cr. 48 ; 
 
 (u) Willis V. Kibble, 1 Beav. 559 ; Ayliff v. Murray, 2 Atk. 60. 
 and see Ellison v. Airey, 1 Ves. 115. (z) Re Sherwood, 3 Beav. 338. 
 
 (a:) See Re Sherwood, 3 Beav. 341. (a) Ayliff v. Murray, 2 Atk. 58, 60. 
 
842 OF ALLOWANCES TO TRUSTEES. 
 
 completely executed, his executors were not allowed the lOOZ. out of 
 the trust-moneys in their hands. (5) 
 
 And where the trustee is the solicitor of the cestui que trust, an 
 agreement between them, that the trustee shall be entitled to his pro- 
 fessional charges or any other benefit, is looked upon with equal or 
 even greater suspicion. (e) And the circumstance of the client being 
 a woman would be an additional argument against the validity of 
 such an agreement, (ci) Indeed, a solicitor could scarcely hope to 
 support a claim founded on such a contract, unless he could satisfy 
 the court, that the client had been made aware of his rights, and of 
 the rule of law respecting such allowances to trustees, and of the 
 effect of the contract ; and the burden of proving these facts will 
 rest with the solicitor, (e) Moreover, it is very desirable that the 
 P^r»„-. agreement itself should, in its terms, explain all those *cir- 
 ■- -' cumstances, and that it should be approved of by counsel, 
 or some other professional adviser, on behalf of the client,(/) as was 
 done in the case referred to above before the Master of the Rolls, (p') 
 Upon this subject, Lord Cottenham, in a late case, said, "the agree- 
 ment must be distinct, and in its terms explain to the client the effect 
 of the arrangement ; and the more particularly when the solicitor 
 for the client, becoming himself a trustee, has an interest personal 
 to himself, adverse to that of the client. It is not easy, in such a 
 case, to conceive how, consistently with the established rules respect- 
 ing contracts between solicitors and their clients, a solicitor could 
 maintain such a contract, made with his client, for his own benefit, 
 the client having no other professional advice, and in the absence of 
 all evidence, and of any probability of the client (a woman too) 
 having been aware of her rights, or of the rule of law, or of the 
 effect of the contract. "(A) 
 
 Moreover, the terms of the instrument must clearly and unequivo- 
 cally authorize the trustee to charge for his professional services, or 
 the claim will otherwise be rejected. Thus where the trust deed 
 provided that all expenses, disbursements, and charges, already or 
 hereafter to be incurred, sustained, or borne by the trustees, or any 
 of them, either in professional business, journeys, or otherwise, in the 
 discharge of the trusts, should be paid in the first place out of the 
 produce of the intended sales, and there was a subsequent provision, 
 that each trustee should be at liberty to retain and reimburse himself 
 all such reasonable costs, charges, and expenses, as he might sustain 
 or he put unto, as between solicitor and client, it was held by Lord 
 
 (6) Gould V. Fleetwood, 3 P. Wms. (e) 3 M. & Cr. 48. 
 251, n. (/) Ibid. 
 
 (c) See Ayliff v. Murray, 2 Atk. 60. (g) Re Sherwood, 3 Beav. 339. 
 
 (d) See 3 M. & Cr. 48. {h) Moore v. Frowd, 3 M. & Cr. 48. 
 
OP ALLOWANCES TO TKUSTBBS. 843 
 
 Cottenham, that these provisions applied merely to expenses actually 
 ■paid ly the trustees, and that they did not authorize any charge or 
 remuneration to the trustees for their professional services as solici- 
 tors, (i) 
 
 A claim for allowances of this special nature should be raised by 
 the answer of the trustee ; and if he omits to do this, and afterwards 
 brings forward the claim ly petition, he will be decreed to pay the 
 costs of the petition, although the court allows the claim. (A) 
 
 However, the rule of equity, which prohibits trustees from deriving 
 profit, or receiving remuneration for the performance of the trust, 
 may be relaxed at the discretion of the court.(Z) And wherever cir- 
 cumstances render it proper, and for the benefit of the trust, that a 
 trustee should have an allowance for his care and trouble, he may 
 obtain an order for such an allowance by an application to the court, 
 lefore he accepts the trust.{m) And the practice upon such an ap- 
 plication is to refer it to the Master, to inquire whether it will be for 
 the benefit of the trust estate to make any allowance to the trustee, 
 and if so, to fix the amount.(n) 
 
 Thus in a case where the trustee named in a will was peculiarly 
 fitted for the ofiice from his intimate acquaintance with the testator's 
 affairs, but he refused to act without an allowance for his trouble, 
 ■ Lord Eldon, in his decree, referred it to the Master to fix the proper 
 amount of allowance to "^the trustee for past and future ser- 
 vices.(o) And in a recent case where, by a previous decree, '- -' 
 an executor and trustee had been appointed consignee of the trust 
 estate with the usual profits. Lord Cottenham refused to disturb the 
 appointment. (^) 
 
 However, the application for an allowance must be made by the 
 trustee before his acceptance of the trust, for after he has once ac- 
 cepted, the court will refuse to allow him any compensation, however 
 arduous the duties may be.(g') 
 
 Where an account is decreed against a trustee, the court will not 
 determine in the first instance, what payments are to be allowed ; 
 but it will leave that to be settled by the Master, who will have that 
 power under the usual direction in the decree to make all just allow- 
 ances.' However, it is open to any of the parties to take the opinion 
 of the court on this question, by excepting to the Master's report, (r) 
 
 (i) Moore v. Frowd, 3 M. & Cr. 45. (o) Marshall v. HoUoway, ubi supra ; 
 
 Ik) Willis V. Kibble, 1 Beav. 560. see Brown v. De Tastet, Jac. 284. 
 
 (/) Morison v. Morison, 4 M. & Cr. {p) Morison v. Morison, 4 M, & Cr. 
 
 224. 216. 
 
 (m) Brocksopp v. Barnes, 5 Mad. 90. (5) Brocksopp v. Barnes, 5 Mad. 90. 
 
 (n) Marshall v. HoUoway, 2 Sw. 453. (r) 2 Dan. Ch. Pr. 887. 
 
 ' Though the usual course in a suit by a cestui que trust against his trustee, for 
 
844 OF THE DISCHARGE AND RELEASE OF TRUSTEES. 
 
 It is of course incumbent on trustees to keep a regular account of 
 their payments, in order that the amount may be allowed them.' 
 However, in an early case, where a trustee had incurred large ex- 
 penses in the management of the estate and conduct of the trust, but 
 instead of giving in a regular account, he made a general claim for 
 2,500Z. to cover these expenses, the court, under these circum- 
 stances, allowed him 2,000Z., although it was of opinion, that he 
 might well have deserved the whole 2,500l.(s) 
 
 A trustee may have a personal remedy against the cestui que trust 
 to recover payment of any sums properly expended by him in the 
 performance of the trust. And this remedy may be enforced by a 
 suit in equity. (^) 
 
 [*5T9] ^CHAPTER VI. 
 
 OF THE DISCHARGE AND RELEASE OF TRUSTEES. 
 
 The last subject for our consideration naturally is — ^the termi- 
 nation of the oflSce of trustee. To effect this to the complete security 
 of the trustee, two objects must be kept in view: 1st. The discharge 
 of the trustee from the office, with its attendant duties and liabilities 
 for the future ; and 2d. His release from all responsibility for the 
 past. 
 
 And first. — Of the discharge of a trustee from future duties and 
 liabilities. 
 
 There seem to be five methods by which this discharge may be 
 effected. The first of these is, — the expiration or full performance 
 of all the trusts, and the conveyance or transfer of the trust property 
 unto, or according to the direction of, the cestui que trusts. This 
 mode of putting an end to a trustee's office is so simple and obvious, 
 that it calls for no particular observations, except that the termi- 
 nation of the trusts must of course be satisfactorily proved, (a) and 
 the cestui que trusts must also be all sui juris, and must have a clear 
 beneficial title to the property. However, in some cases which have 
 
 (s) Hethersell v. Hales, 2 Ch. Rep. (o) Goodson v. EUisson, 3 Russ. 593 ; 
 
 158. Holford v. Phipps, 3 Beav. 434; [ante, 
 
 («) See Balsh v. Higham, 2 P. Wms. p. 229, &c.; 236, 278, 279, and notes; 
 
 453. Taverner v. Robinson, 2 Rob. Va. 280.] 
 
 an account of the trust fund, is to order a reference, yet such reference will not 
 be ordered, where it satisfactorily appears on the hearing that there is nothing 
 due: Nail v. Martin, 4 Ired. Eq. 159. 
 ' See ante, 570, note. 
 
OP THE DISCHARGE AND RELEASE 0¥ TRUSTEES. 845 
 
 been already considered, the reconveyance or surrender of a dry 
 legal estate, which has remained unnoticed in a trustee after the de- 
 termination of the trusts, will be presumed in aid of the title after a 
 sufficient lapse of time. (6)^ 
 
 Where a conveyance or transfer of the legal estate is taken from 
 a trustee on the termination of the trust, it is usually accompanied 
 by a release to him from the cestui que trusts in respect of all past 
 liability, although we shall see presently that the trustee cannot 
 insist on having such a release. (c) 
 
 Again, although the trusts may not be determined, a trustee may 
 be discharged from his office with the concurrence of all the cestui 
 que trusts (provided that they are all in esse and competent to bind 
 themselves by contract), and the appointment of a new trustee in his 
 place, is not essential to give validity to such a discharge. This, 
 however, is a case that rarely occurs in practice, for reasons that are 
 at once sufficiently obvious. 
 
 The third mode of discharging an existing trustee is, by the ap- 
 pointment of another in his place, under a power contained in the 
 trust instrument. The appointment of new trustees under a power 
 is a subject which has been already considered at some length in a 
 previous chapter,(ci) and it is unnecessary to pursue it further on the 
 present occasion. 
 
 *The death of one of several co-trustees also operates as a p^rn^-, 
 discharge from the trust. We have already seen that the L -■ 
 whole trust estate, with its attendant powers and duties, will pass to 
 the surviving trustee or trustees on the death of one of their 
 number ;(e) and therefore the estate of the deceased trustee will 
 thenceforth be relieved from anj future responsibility respecting the 
 trust, although, until properly released, it will remain liable for past 
 acts done in his lifetime. 
 
 Lastly, a trustee may be discharged from his office by the decree 
 of the court, which will either appoint another in his place, or in 
 certain cases will itself undertake the superintendence and discharge 
 
 (6) Ante, Pt. 11. Ch. II. Sect. 4; [p. (d) Ante, Pt. I. Div. III. Chap. I. [p. 
 253, &c., and notes.] 175.] 
 
 (c) Vide post, [p. 580.] (c) Ante, [p. 303.] 
 
 ' A sale on a decree, under a prior incumbrance, puts an end to the duties 
 and responsibility of the trustee: De Bevoise v. Sandford, 1 Hoff. Ch. 195. A 
 deed of relinquishment of the trust by the trustee, not purporting to convey the 
 estate to any one, is merely inoperative : Dick v. Pitchford, 1 Dev. & Batt. Eq. 
 480. So a deed by a trustee for a feme coverte to her, will not put an end to 
 the trust; see ante, p. 278, &c., and notes. An authorized purchase by the 
 trustee of the cestui que trust will be a merger : Johnson v. Johnson, 5 Alab. 90. 
 See ante, 252, note. 
 
OE THE DISCHARGE AND RELEASE OS TRUSTEES. 
 
 of the trust. This is a subject which has undergone discussion in a 
 previous chapter.(/) The effect of a decree of the court, in releasing 
 a trustee from liability for past transactions, will be presently con- 
 sidered. 
 
 It is obvious, that the discharge of a trustee from his office upon 
 the termination of the trusts, or the appointment of a person to 
 succeed him, will not of itself extinguish the right of the cestui que 
 trusts to inquire into the past conduct and transactions of the trustee. 
 Hence, when a trustee is called upon to relinquish the trust, and 
 part with the trust estate, it' is usual for him to require a retro- 
 spective release from the cestui que trusts, or such of them as are 
 capable of binding themselves by contract. And wherever .the whole 
 of the cestui que trusts are sui juris, and the precautions, which 
 will presently be suggested, are observed in the preparation and exe- 
 cution of the release, it may be safely affirmed, that such a release 
 will secure the trustees from any further molestation or question re- 
 specting the trust. 
 
 However, where the right of the cestui que trust to have a convey- 
 ance or transfer of the property is perfectly clear and certain, the 
 trustee cannot refuse to make a conveyance or transfer, until a gene- 
 ral release from all demands be given to him by the cestui que trust. 
 In a late case, a testator gave his residuary estate to trustees in trust 
 to divide it amongst his five children, of whom the plaintiff was one. 
 The plaintiff, upon attaining twenty-one, required payment of her 
 share from the trustees, but they refused to make the payment, 
 except upon her executing a general release. The bill was then 
 filed against the trustees to obtain payment, and Lord Langdale, 
 M. R., held that the plaintiff was not bound to give any such release, 
 or to submit to any such conditions ; and upon the refusal of the 
 trustees to pay the money without such a release, she was justified in 
 taking proceedings to obtain payment. (^)(1)' 
 
 (/) Ante, Pt. I. Div. III. Chap. 11. (g) Fulton v. Gilmour, Rolls, 15tli 
 [p. 190.] Feb., 1845. MS. [8 Beav. 154.] 
 
 (1) Although a surviving trustee and executor of a will is entitled to such 
 release or acquittance, on paying over to his cestui que trust the balance due to 
 him, as vfill show that the latter is satisfied with the account (subject, only, to 
 the right to surcharge and falsify), such trustee and executor is not entitled to 
 insist on a release by deed. Chadwick v. Heatley, [2 Coll. C. C. 137.] If, in a 
 suit by the cestui que trust for the payment of the balance, he refuses to execute 
 a release, or to accept the balance in full of all demands, in respect of the estate of 
 which the defendant is executor and trustee, the Chancellor will order the money 
 into court, and direct the accounts to be taken of the testator's estate. Ibid. 
 
 ' A trustee paying the trust-money in strict accordance with the tenor of the 
 trusts is not entitled to a release by deed ; otherwise, if he is called upon to depart 
 
OF THE DISCHARGE AND RELEASE OE TRUSTEES. 847 
 
 But wherever the title of the cestui que trusts is not perfectly 
 clear, or there is the possibility of any future question arising as to 
 the propriety of *the conveyance or transfer by the trustee, r^ro-i-i 
 he will doubtless be justified in requiring a sufiicient indemnity ^ 
 from the cestui que trusts in respect of any future claims ; or in case 
 that were refused, he might insist on having the question determined 
 by the decision of the Court of Chancery.(A) But it would doubtless 
 be considered unreasonable and vexatious on the part of the trustee 
 to insist on an indemnity for which there was no such probable 
 cause. 
 
 The old trustees are frequently required to make over the trust 
 property to other trustees, upon trusts subsequently created by the 
 act of the cestui que trusts, and in such cases the old trustees are 
 naturally desirous of having a release, which the new trustees are 
 probably equally reluctant to give. Where the release is confined to 
 the present and future claims of the new trustees upon the old trus- 
 tees in respect of the trust property made over to them (which 
 amounts in fact merely to an ample receipt), and there is no doubt 
 as to the nature or exact amount of the property transferred, there 
 seems to be no reason why the new trustees should object to execute 
 the release. But they would of course decline to give any release, 
 which extended to past transactions and accounts reaching over a 
 period anterior to the commencement of their interests in the pro- 
 perty. Still less would they be justified in putting their hands to any 
 such instrument, where from the dealings of the old trustees with the 
 property, or otherwise, there can be any question or suspicion of the 
 existence of a claim against the old trustees for a breach of trust. 
 
 It is almost superfluous to observe, that the parties to a release to 
 a trustee must be competent to bind themselves by deed.(^') And 
 where it is made by the parties immediately on coming of age, the 
 court will require satisfaction, that the trustee has taken no advan- 
 tage of his influence, acquired during the infancy of the cestui que 
 trusts; for the protection of the court to infants does not necessarily 
 cease upon their attaining twenty-one. (i) Thus in Wedderburn v. 
 Wedderburn,(Z) an infant cestui que trust, on the third day after his 
 
 (h) See Goodson v. Ellisson, 3 Russ. to fraud on the part of the infant, ante, 
 
 583. p. 144, note (1).] 
 
 (i) A release by an infant is merely (k) Walker v. Symonds, 2 Sw. 69. 
 void. Overton v. Banister, 8 Jurist, (Z) Wedderburn v. Wedderburn, 4 M. 
 
 996; S. C, 3 Hare, 503. [But see as & Cr. 50. 
 
 from it. Thus where a trust was created by parol for A. for life, and to provide 
 for her funeral expenses, remainder to her two children, and the'tenant for life, 
 and remaindermen called for payment, it was held by Vice-Chanoellor Kin- 
 dersley, that the trustee might lawfully insist on a release under seal : King v. 
 Mullin, 1 Drewry, 308. 
 
848 OF THE DISCHAEGE AND RELEASE OF TRUSTEES, 
 
 coming of age, executed a release to his trustees, which was based on 
 the result of a complicated account, embracing the transactions of 
 many years, and unsupported by any evidence ; and under these cir- 
 cumstances the release, although most ample and conclusive in its 
 terms, was held not to be binding on the infant. (Z) 
 
 It has been already stated,(w*) that a release of this description 
 will not be conclusive, unless the releasing parties were made fully 
 acquainted, both with their own rights, and also with the nature and 
 extent of the liabilities of the trustee, (w) And it would unques- 
 tionably be vitiated by any concealment, or withholding of informa- 
 tion, or other fraudulent conduct, on the part of the trustee.(o) 
 
 Therefore, a full statement of all the accounts and other transac- 
 tions of the trustee should unquestionably be furnished to the cestui 
 que trusts, together with all the information requisite for explaining 
 and understanding them. And it is peculiarly desirable, that those 
 p^rop-i and all the other material *facts should be distinctly stated 
 or referred to in the instrument itself ;(yi) and this precaution 
 should more especially be observed, wherever the release is intended 
 to apply to any transaction which amounts to a breach of trust.(g') 
 
 Again, although the accounts are clearly stated or referred to on 
 the face of the release, which is founded on the result of those ac- 
 counts, yet if the basis, on which the accounts proceed, is erroneous 
 and improper, the release will not preclude the cestui que trust from 
 enforcing a claim against the trustee. For instance, in Wedderburn 
 V. Wedderburn, (r) executors and trustees, who were also partners of 
 the testator, accounted with one of the residuary legatees for his 
 share of the property, and took a release from him on his reaching 
 twenty-one ; a valuation of the testator's share in the partnership 
 property had been made under the direction of the trustees, wAo cre- 
 dited themselves with the amount of that valuation, and thus became 
 themselves the purchasers of the testator's share ; it was held, that 
 this valuation, and the account founded on it, was open to question 
 by the cestui que trust, and consequently that the release, which de- 
 pended on the account, was not binding on him.(?-) 
 
 And so if the release in its terms is not final, but is expressed to 
 apply to the claims of the releasing party in respect of part only of 
 
 {V) Wedderburn v. Wedderburn, 4 (o) Walker v. Symonds, 3 Sw. 73; 
 
 M. & Cr. 50. Wedderburn v. Wedderburn, ubi supra, 
 
 (m) Ante, p. 525, and notes. [Dis- (p) See Wedderburn «. Wedderburn, 
 
 charge of Breach of Trust.] 4 M. & Cr. 41, 50. 
 
 (n) 3 Sw. 68 ; Wedderburn v. Wed- (5) Walker v. Symonds, 3 Sw. 69 ; 
 
 derburn, 2 Keen, 722 ; S. C. 4 M. & Cr. ante, p. 525. [Discharge of Breach of 
 
 41 ; see Charter v. Trevelyan, Dom. Trust.] 
 
 Proc. 8 Jurist, 1015; [1 H. L. Cas. 714.] (r) Wedderburn v. Wedderburn, 4 
 
 M. & Cr. 41, 49. 
 
OF THE DISCHARGE AND RELEASE OP TRUSTEES. 849 
 
 the property, or of some of the transactions of the trustees respect- 
 ing the estate, the cestui que trust will not be precluded from ad- 
 vancing claims not included in the release. (s) 
 
 It may be added, that it is very desirable for the cestui que trusts 
 to have a separate legal adviser on executing a release to their trus- 
 tees.^ 
 
 A release, taken without the observance of all the preliminary cir- 
 cumstances, and precautions above stated, cannot be relied upon by 
 a trustee as a discharge from the claims of the cestui que trusts.^ 
 And where a proper case is made out for the interference of the 
 court, relief has been decreed in favor of the cestui que trusts, not- 
 withstanding the execution of the release, and after a delay of forty 
 years in instituting the suit.(i) 
 
 But where a release has been executed by the cestui que trusts, 
 with full knowledge of all the circumstances, after sufficient delibe- 
 ration, and having had ample opportunity of investigating all the 
 accounts and transactions connected with the trust, it will not be set 
 aside hastily, or upon slight grounds ; and some improper circum- 
 stances, or considerable errors, must be shown to exist, in order to 
 induce the court to interfere. (m) 
 
 And a deed of release properly executed is primd facie valid and 
 binding on the parties executing it, and it will rest with them to es- 
 tablish in evidence the facts upon which it may be set aside ; espe- 
 cially where many years have been suffered to elapse without ques- 
 tioning its validity.(a;) 
 
 It has been already stated,(j/) that a trustee, who has been com- 
 pelled to make good to the cestui que trust a loss occasioned by the 
 act of his *co-trustee, is entitled to stand in the place of the r^coo-i 
 cestui que trust as against his co-trustee, and to claim from 
 him the amount which he has thus been compelled to pay. If, there- 
 fore, the cestui que trust, with full knowledge of all the circum- 
 stances, and of the relative rights and liabilities of himself and the 
 trustees, makes a compromise or release of his claim against the de- 
 faulting trustee, this will operate as a release to all the trustees : for 
 the remedy of the other trustees against the defaulting trustee, will 
 thus have been materially affected by the act of the cestui que trust.{z) 
 
 (s) 2 Keen, 740; 4 M. & Or. 48. {x) Portlock v. Gardner, 1 Hare, 594. 
 
 (0 2 Keen, 742 ; 4 M. & Cr. 41 ; ante, {y) Ante, p. 306. 
 
 p. 527. [Discharge of Breach of Trust.] (z) See Walker v. Symonds, 1 Sw. 1, 
 
 (m) Re Sherwood, 3 Beav. 338 ; see 77. 
 Portlock 0. Gardner, 1 Hare, 594; and 
 see Millar v. Craig, 6 Beav. 433. 
 
 ' See ante p. 575 note (1) adfin. ' See ante, p. 525, note. 
 
 54 
 
850 OF THE DISCHARGE AND RELEASE OF TRUSTEES. 
 
 The case is very analogous to that of a creditor who releases a surety 
 by making a compromise with the principal debtor without the surety's 
 consent. 
 
 Although a trustee may have obtained no express release in 
 writing from the cestui que trust, the conduct of the latter may 
 amount to such a release ; as where the cestui que trust suffers a 
 considerable time to elapse without requiring any account or expla- 
 nation from his trustees after the determination of the trust. 
 
 And where the trust has determined, and the property has been 
 made over to the party beneficially entitled, a much shorter period 
 of acquiescence or delay on the part of the cestui que trust will pre- 
 clude him from bringing forward a claim against the trustee for past 
 acts of maladministration, than where the trust is still subsisting, 
 and a running account as it were, open between the parties, (a) But 
 the length of time which will amount to a bar to a claim against 
 trustees for past transactions, will depend materially on the nature 
 and foundation of the relief sought. If it be simply for an account, 
 without suggesting any cause of fraud or breach of trust, it is con- 
 ceived that a very few years would sufiEce to protectthe trustee ; and 
 probably six years_from analogy to the statutory period of limitation 
 to actions at law, would be considered sufficient for this purpose. 
 But where any positive breach of trust is suggested, or a fortiori, 
 any case of fraud, a much longer period will be required to operate 
 as a bar ; and we have already seen, that in general the period of 
 acquiescence in such cases will commence only from the time when 
 the party is made acquainted with his rights. (S) The actual number 
 of years which will operate as a bar, will materially depend on the 
 relative circumstances of the parties, and the particular features in 
 every case, it being a matter peculiarly in the discretion of the par- 
 ticular judge to grant or withhold the assistance of the court in these 
 cases.. However, the subject of delay and acquiescence, and the 
 extent to which it will operate as a bar to relief in a court of equity, 
 has been already necessarily anticipated in previous chapters.(c)' 
 
 The last and most effectual method by which trustees may obtain 
 a release from past liability, on the determination or relinquishment 
 of the trust, is a decree of a court of equity. And when a trustee's 
 accounts have been passed in the Master's office, and a decree dis- 
 charging him from the trust duly obtained in a suit, to which all 
 
 (a) See Wedderburn v. Wedderburn, Wedderbum v. Wedderburn, 2 Keen, 
 
 2 Keen, 722, 749; 4 M. & Cr. .52. 722; S. C. 4 M. & Cr. 41, 50. 
 
 (i) Ante, Pt. I. Div. II. Ch. II. Sect. (c) Ante, Pt. I. Div. II. Ch. II. Sect. 
 
 1 ; and Ch. I. Sect. 3, of this Division ; 1 ; and Ch. I. Sect. 3, of this Division. 
 March v. Russell, 3 M. & Cr. 31, 42; 
 
 ' See ante, 168, 169, notes. 
 
OF THE DISCHARGE AND RELEASE OP TRUSTEES. 851 
 
 persons interested are made parties, the court will not allow any 
 future claim to be made against him for his conduct in the trust. (c^)^ 
 
 *rrom what has been already said in considering the efifect r*co4.-i 
 of a release from the cestui que trusts, it will have been seen -^ 
 
 that such an instrument (however apparently ample and conclusivje), 
 can rarely be relied upon as an absolute protection against a future 
 claim by the cestui que trusts, more especially when the trust has 
 been one of a complicated description, and extending over a long 
 period of years. And it may be safely affirmed, that a decree of the 
 court will be the only valid discharge to a trustee, who has accepted 
 a trust of that nature. And the protection of the court is yet more 
 essential, where the circumstances of the parties — as the existence 
 of a partnership, or other similar communion of interest between 
 them — affords any reason for treating the relation of trustee and 
 cestui que trust as still subsisting, and the account still open between 
 them.(e) 
 
 We have already seen that the court will recognise the right of 
 trustees to place themselves under its guidance and protection ;(/) 
 and that they will be allowed the costs of a suit instituted by them 
 for that purpose. ((/) 
 
 ((/) KaatchbuU v. Fearnhead, 3 M. 1, this Division; Coventry u. Coventry, 
 
 & Cr. 122; Low v. Carter, 1 Beav. 426. 1 Keen, 758; Greenwood v. Wakeford, 
 
 (e) See Wedderburn v. Wedderbura, 1 Beav. 576. 
 
 2 Keen, 722; 4 M. & Cr. 41. (g-) Low v. Carter, 1 Beav. 426. 
 
 (/) Ante. p. 543 notes, Ch. IV. Sect. [Ante, pp. 543, 568, and notes.] 
 
 ' See Moore's App., 10 Barr, 435. 
 
INDEX. 
 
 [n. b. the eepebences ake to the stab, paging in brackets.] 
 
 ACCEPTANCE OF TRUST: [See Disclaimer.] 
 when presumed, 206, 219, 225. 
 execution of trust deed by a trustee is, 214. 
 or probate of will by executor, ib. 
 trustee's acting in the trust is an acceptance, 215. 
 
 secus, if he act only as agent of another trustee, ib. 
 
 whether a release or conveyance of the trust estate by a trustee, who 
 refuses to act, will amount to. Qucere ? 216. 
 
 what acts of a trustee will amount to, 218. 
 no disclaimer can be made after acceptance, ib., 221. 
 parol evidence admissible to prove acceptance, 219. 
 if denied by answer, an inquiry directed. 219. 
 
 ACCIDENT: 
 
 relief against instruments on the ground of, 148. [See Deeds — Fraud — 
 
 Mistake.] 
 trustees not liable for losses occasioned by, 573. 
 
 ACCOUNT : 
 
 retrospective, limited to the time of filing the bill against a trustee on the 
 ground of delay. [See Delay] 169. 
 limited to the time of filing the information against trustees fox chari- 
 tiei3. When? 469. 
 of what might have been received without wilful default, decreed against 
 trustees. When? 522. 
 
 ACCOUNTANT: 
 
 how far trustees may employ an, 573. 
 
 ACCUMULATION: 
 
 void under Thellusson Act results for heir or next of kin, 135, 394. 
 
 trust for payment of debts exempted from provisions of that act, 344. 
 
 or a trust for raising portions, 368. 
 
 trusts for — how far good, 394. 
 
 if directed for too long a period, void only for the excess, 394. 
 
 duty of trustees for infants to make, 404. 
 
 where infant's interest is contingent, ib. 
 
 not continued after infant reaches twenty-one, if he be then absolutely 
 entitled, 404. 
 
 liability of trustees for neglecting to accumulate, 405. 
 
 ACQUIESCENCE: 
 
 effect of, in barring the right to relief on an equitable claim. [See Delay 
 
 Limitation, Statutes of — Time.] 168, 265, 503. 
 by cestui que trust in an improper investment by trustee, effect of, 382. 
 effect of, a discharge of a breach of trust, 525. 
 
854 INDEX. 
 
 ACTION AT LAW: 
 
 must be brought in name of trustee, 274, 317, 428, 503. 
 defendant in, cannot set off a debt due to him from the trustee, 274 317 
 503. > > ! 
 
 fraudulent release of, by trustee set aside, 274, 317, 503. 
 right of trustee to require security for costs of, 274, 317. 
 lies against a trustee for breach of trust. When'? 518. 
 trustee not restricted to nominal damages in, 545. 
 liability of trustees to, for breach of their covenants, 547. 
 against trustees for money had and received, lies when ? ib. 
 
 ADMINISTRATOR: [See Execdtor.] 
 
 ADVANCEMENT : 
 
 purchase in the name of another person will be, and not a resulting trust for 
 
 the purchaser. When'? 97. 
 whether purchase in the joint name of father and son will be. Quare? 99. 
 purchase in names of father and son as tenants in common will be, ib. 
 or purchase of copyholds in names of sons successive, ib. 
 or purchase in joint names of husband and wife, 101. 
 or of husband and wife and children, ib. 
 or in the name of a wife or child jointly with a stranger, ib. 
 secus, purchase by two persons iu the name of a child of one of them, ib. 
 whether good against the then creditors of a purchaser. Quccre ? ib. 
 good against a subsequent purchaser, 102. 
 
 against subsequent creditors. When ? ib. 
 the presumption in favor of advancement may be rebutted, 103. 
 
 evidence for that purpose must be contemporaneous, 105. 
 
 efTect of a subsequent mortgage or devise by the purchaser, ib. 
 
 circumstances of one transaction, no evidence as to another, 106. 
 trustees may not break in on infant's capital for their advancement or main- 
 tenance, 398, 399. 
 jurisdiction of the court to direct, out of infant's capital, 399. 
 power given to trustees to make, out of infant's capital must be strictly fol- 
 lowed, 399. 
 whether given out of capital, where the, fund is limhed over, 400. 
 
 ADULTERY: 
 
 of wife, how far a bar to her equity for a settlement, 411. 
 
 no forfeiture of any benefit secured to her by settlement or contract, 
 428. 
 
 ADVOWSON : 
 
 trustee of, has right of presentation at law, 274, 439. 
 
 must present nominee of cestui que trust, ib. 
 
 trust of, passes by what words, 439. 
 
 trust of, results, if not expressly declared, ib. 
 
 trustees may present for their own benefit.' When? 440. 
 
 cestui que trusts of, must all concur in norainatiiig, ib. 
 
 trust offer the benefit of "parishioners," how to be executed, 441. 
 
 right of infant cestui que trust to nominate to, 442. 
 
 or of bankrupt cestui que trust, ib. 
 
 trusts of, for Roman Catholics, how executed, 442, 443. 
 
 or where cestui que trusts are lunatic, 443. 
 
 right of husbands of cestui que trusts of, to nominate, ib. 
 
 where cestui que trusts are aliens or felons, &c., ib. 
 
 all the trustees of, must join in the presentation, 443. . 
 
 when bound to present the nominee of the majority, 443, 444. 
 
 notice of meeting for the election must be given to allthe trustees, 444. 
 
 trustees cannot vote by proxy in choice of an incumbent, ib. 
 
 but may authorize the others to sign the presentation, ib. 
 
 directions to trustees to elect within a certain time, how far binding, ib. 
 
 direction to keep up a certain number of trustees, how far imperative, ib. 
 
 bishop restrained from presenting for a lapse pending a suit, ib. 445. 
 
 liability of trustees for refusing to present nominee of cestui que trusts, 445. 
 
INDEX. 855 
 
 AGENT: 
 
 not a trustee -within the scope of this work, 41. 
 
 gifts to, from his principal raise a constructive trust. When ? J60, 161. 
 
 notice of a trust to, binds the principal, 165. 
 
 trustees for payment of debts must not commit the execution of the trust to, 
 
 exclusively, 344. 
 trustee acting as the, of co-trustee not fixed with acceptance of trust, 215. 
 how far trustees may delegate execution of trust to, 540. 
 trustees how far liable for losses by failure of, 573. 
 
 ALIEN : 
 
 may create a trustee, of what property, 47. 
 may be a trustee, of what, 51. 
 may be cestui que trust, of what, 53. 
 
 ALIENATION: 
 
 validity of provisions for forfeiture on the, or bankruptcy of cestui que trust 
 
 for life, 395. 
 validity of provisions restraining a married woman from, of her separate 
 estate, 422. 
 what expressions will oteate such a restriction. [See Married Woman.! 
 ib., 423. ' ■■ 
 
 by trustees of charity estates, when supported, 463. 
 
 ALLOWANCES : 
 
 right of trustees to, for their expenses, without any express provision, 570. 
 necessity for the insertion of a direction to make "just allowances" in a 
 
 decree against trustees for an account, ib. 
 right of trustee to, though commission allowed him by the will, ib. 
 what payments will be allowed to trustees as proper, 571. 
 expenses of management of estate, ib. 
 payments under legal advice, 572. 
 payments out of pocket, when properlj' made, ib. 
 
 with interest when, ib. 
 bill of costs paid by them. [See Costs.] ib. 
 extra costs beyond taxed costs, 572. 
 expense of taking legal advice, ib. 
 
 of accountant or agent allowed, how far, 573. 
 brokerage charges on transfers of trust stock, ib. 
 losses by robbery or failure of bankers, &c., ib. 
 but payments in breach of trust disallowed, 574. 
 
 trustees not allowed to charge for loss of time or professional services, ib. 
 unless expressly authorized to do so by the will, 575. 
 or entitled to do so by contract with cestui que trust, where trust created 
 by deed, 576. 
 difficulty of supporting such a contract, 576. 
 power of the court to give trustees an allowance for their trouble, 577. 
 account of expenses should be kept by trustees, 578. 
 their personal remedy against cestui que trusts to recover their expenses, ib. 
 
 ANNUITY: 
 
 a devise to trustee without words of limitation in trust to pay an, for life, 
 gives them an estate for the life of the annuitant, 247. 
 
 whether it gives them a freehold interest or one for a term of years. 
 Qucere? [See Estate, Duration of.] ib. 
 duty of trustees to take possession of estate, if it fall in arrear, 273, 429. 
 given by will, on same footing as legacies, 362. 
 
 investment in purchase of, for a life, bad without a special power, 370. 
 duty of trustees to convert long annuities settled for life. [See Conver- 
 sion.] 386. 
 apportionment of, on death of tenant for life, under 4 & 5 Will. IV. c. 22 ; 
 394. 
 
856 INDEX. 
 
 ANSWER : 
 
 admission of a trust by, sufficient to satisfy Statute of Frauds, 60. 
 trustee wly) puts in a full answer, entitled to the costs. When ? 554. 
 disclaimer of a trust may be made by, 224. 
 
 APPORTIONMENT: 
 
 of periodical payments, on death of tenant for life, under 4 & 5 Will. IV. 
 
 c. 22; 395. 
 of costs, where suit is partially occasioned by a breach of trust, 564. 
 of costs, amongst trustees, to whom one set of costs only is allowed on their 
 
 severance, 553. 
 
 ARBITRATOR : 
 
 discharge of a breach of trust by award of, 526. 
 
 ARREARS : 
 
 duty of trustees to enter into possession of estate for payment of, of annui- 
 ties, &c., 429. 
 liability of trustees for suffering rents to fall into arrear, ib. 
 power of trustees to release, ib. 
 
 ASSETS: 
 
 nqt marshalled as between creditors claiming under a trust deed for payment 
 
 of debts, 339. 
 marshalled in favor of simple contract creditors, where there is a devise for 
 
 payment of debts, .S58. 
 marshalled in favor of legatees, who have no charge on the land, 364. 
 not marshalled in favor of legacies given to charity, 364, 468. 
 
 ASSIGNEE : [See Bankrupt and Insolvent.] 
 
 not a trustee within the scope of this work,- 41. 
 
 ATTAINDER : [See Escheat — Forfeiture — Sovereign.] 
 persons under, may create a trust, how far, 47. 
 may be trustees, 51. 
 
 may be cestui que trusts, to what extent, 53. 
 right of trustees of real estate to hold beneficially on the, of cestui que trusts, 
 
 270. 
 no such right, where the attainder is for high treason, ib. 
 personal estate held in trust goes to the Crown on the, of cestui que trust, 271. 
 
 ATTORNEY, OR SOLICITOR : 
 
 gifts to, or purchases by, from his client raise a constructive trust. When ■? 
 
 160. 
 right of trusteeto employ, 572. 
 
 being a trustee, cannot in general charge for professional services, 574. 
 or one of a firm of attorneys, 575. 
 secus, if such charges allowed by the will, ib. 
 
 or in case of a deed, if the trustee have entided himself by e.x:press 
 contract, 576. 
 difficulty of supporting such a contract, ib. 
 
 ATTORNEY, POWER OF: 
 
 by trustees for tenant for life to receive the income, proper, 386. 
 how invalidated, ib. 
 
 AUCTION: [See Sale.] 
 
 sale of trust estate by, more, advisable than by private contract, 480. 
 trustees cannot buy in estate, at, ib. 
 their liability to the, duty, ib. 
 
 B. 
 
 BANK OF ENGLAND: 
 
 not usually bound by a trust of stock, 773. 
 
 investment in stock of, improper without a special authority, 378, 445. 
 stock of, settled for life must be converted, 387. 
 
 will not allow a sum to be transferred into the names of more than four co- 
 proprietors, 445. 
 
INDEX. 857 
 
 BANKER: 
 
 not a constructive trustee for his customer, of money deposited with him, 
 
 173. 
 trustees not liable for losses by failure of, when. [See Investment.] 573. 
 cheques on, whether they should be signed by all the trustees, 308. 
 
 BANKRUPT AND INSOLVENT: 
 may create a trustee, how far, 47. 
 may be a trustee, 51. 
 
 cannot be cestui que trust before certificate or final discharge, 53. 
 trustee who becomes, is unfit to act within the usual power of appointing 
 
 new trustees, 179. 
 jurisdiction of the court to appoint new trustee in place of a bankrupt trus- 
 tee, now exercised by Court of Review, 192. 
 may be exercised on petition. [See New Trustees, Appointment of.] 
 
 199, 200. 
 not allowed to offer himself as a new trustee before the master, 210. 
 entitled to his costs of appearance on a petition for the appointment of a 
 
 new trustee in his place, ib. 
 appointment of new trustee in place of an insolvent, 534. 
 right of trustees to prove for a debt against a, debtor to the estate. 275, 449. 
 and to sign certificate, ib. 
 
 validity of provisions for forfeiture of tenant for life, on his becoming, 395. 
 may present to a living on a vacancy of advowson held in trust for him. 
 
 When ■? 442. 
 trust estates vested in, do not go to the assignees of the trustee, 269, 304, 
 530. 
 unless the trust be constructive or doubtful, 530. 
 how far trust property in bankrupt's hands may be followed in specie, 530, 1. 
 where the trust property is blended with that belonging beneficially to the 
 
 trustee, 531. 
 right of proving against the trustee's estate for the trust fund, 532. 
 by whom the proof to be made, ib. 
 how far debt due from bankrupt trustee maybe set off against costs to which 
 
 he is entitled, 533. 
 how far a debt by breach of trust discharged by bankruptcy or insolvency 
 
 of trustee, 530. 
 liability of a trustee to bankruptcy, who trades with the trust assets, 534. 
 efiect of a trustee becoming, after an order for payment of money to him, ib. 
 
 BENEFICE: [See Advowson.] 
 
 BOND: [See Chose in Action — Investment — Personal Security.] 
 
 BONUS: 
 
 extraordinary bonuses, or other additions, not to be paid to tenant for life, 
 
 386, 446. 
 assignment of a policy of insurance carries all future bonuses, 449. 
 
 BREACH OF TRUST: 
 the remedies for, 518. 
 
 extept of remedy for, at law, ib. 
 
 creates a simple contract debt against trustees, ib. 
 
 when a specialty debt, ib. 
 
 suits against trustees for. [See Suit.] 519. 
 
 necessity of joining as defendants all co-trustees guilty of, 519, 520. 
 
 effect of 32d Order of August, 1841, 521. 
 relief for, twofold, 521. 
 1st. retrospective relief, ib. 
 
 restitution of trust property — where it can be followed, 522. 
 
 when it will be followed, ib. 
 payment of the value where it cannot be followed, ib. 
 account of income and profit made by trustees, ib. 
 
 and of what he might have received without wilful default, 
 523. 
 
858 INDEX. 
 
 BREACH OF TRVST.— Continued. 
 
 account decreed with interest. [See Interest.] 523. 
 at what rate ? ib. 
 compound interest. When 1 ib. 
 rule as to interest when and how far relaxed, ib. 524. 
 costs given. When? [See Costs.] 524. 
 2d, prospective relief. 
 
 removal of trustees and appointment of others, 524. [See Remo- 
 val — New Trustees.] 
 trust fund retained in court, 525. 
 receiver appointed. When? [See Receiver.] ib. 
 the discharge of breach of trust. [See Discharge — Release.] ib. 
 by a release from cestui que trusts. [See Release.] ib. 
 by award of arbitrators. [See Arbitration.] 526. 
 by concurrence of cestui que trusts in the act, ib. 
 by acquiescence of cestui que trusts. [See Acquiescence.] ib. 527. 
 usual indemnity clause does not extend to discharge, 528. 
 discharge of a trustee under the Insolvent Act applied to. When ? ib. 
 or certificate in bankruptcy, ib. 
 recovering on a bond given by trustee for the performance of the trust, 
 
 is not a discharge of, ib. 
 waiver of relief Eigainst, by cestui que trust, from his abstaining to bring 
 forward his claim in the suit, 529. 
 
 BROKER: 
 
 charges of, for transfer of trust stock allowed to trustees, 573. 
 
 c. 
 
 CATHOLIC— ROMAN : 
 
 trust of advowson for, how to be executed? 443. 
 
 CESTUI QUE TRUST : 
 who maybe, 51, 2. 
 
 CHANCERY— COURT OF : [See Jurisdiction— Suit.] 
 
 CHARGE :. . . . 
 
 becoming void or failing creates a resulting trust. [See Resulting Trust.] 
 136. 
 the devisee will take the benefit of the failure, When ? 140. 
 no distinction between, and a devise for payment of debts, 355, n., 357, 358. 
 what amounts to a, of debts on real estate, 345, et seq. 
 or of legacies, 359, 360. 
 
 CHARITY: 
 
 objects of, may be cestui que trusts, 13. 
 
 what expressions sufficient to create a trust for, 81, 134, 450. 
 no resulting trust, where property given generally to, 138, 450. 
 
 though the particular trusts are not declared, or do not exhaust the whole, 
 
 128, 451. 
 though a surplus arises from subsequent increased value, 128, 129,451. 
 though the particular purpose declared, is illegal, 129, 451. 
 the application made by royal sign manual, or by scheme, 130, 469. 
 gift to a corporation on trust does not imply a trust for, 134. 
 constructive trust in favor of not barred by acquiescence. 169. 
 appointment of new trustees of. [See New Trustees, Appointment of,] 
 
 194, 198. 
 sum of money given in trust for, not paid over to trustees without a scheme, 
 
 274. 
 ' assets not marshalled in favor of legacies to, 364, 468. 
 what objects regarded as charitable by the court, 81, 128, 452. 
 trust for, must originate in " gift" or " bounty," 454. 
 trust for a foreign, how far supported, ib. 
 what trusts for are within the Mortmain Act, 455. 
 exceptions from operation of that act, 457, 458. 
 
INDEX. 859 
 
 CHARITY.— Continued. 
 
 conveyances in trust for, must be executed as required by that act, 458. 
 jurisdiction of the Court of Chancery over trusts for, 459. 
 exercised on information, ib. 
 on suit. When ? ib. 
 
 statutory jurisdiction exercised on petition, ib. 
 ■where there is a visitor, 460. 
 
 rights of the trustees to take beneficially on failure of the objects, or in 
 case of a surplus, 129, 461. 
 ■where a specified yearly sum is given to the charity, 129, 461, 
 
 462. 
 ■where an express or implied gift of surplus to the trustees, 129, 130, 
 
 461. 
 where the trustees are themselves an eleemosynary corporation, 
 
 462. 
 or are themselves objects of the testator's bounty, 129, 461. 
 application cy pres, 462. 
 
 powers and duties of trustees for charity, 462, 463. 
 of alienation by them of the trust property, ib. 
 of leases granted by them, 463. 
 their general powers of control and management 465. 
 rules of construction, ■where the objects are not absolutely defined, 
 466. 
 court directs a scheme for administration of a fund in its possession, 
 
 467. 
 Statutes of Limitation do not run against a trust for, 169, 266, 468. 
 retrospective accounts, how far directed against trustees for charity, 470. 
 
 account when limited to the time of filing the information, ib. 
 gift to the governors or treasurer of an established charity is a trust for 
 the purposes of that charity, 470. 
 
 CHILD: [See Illegitimate Child — Parent — Portion.] 
 
 purchases by parent in name of, an advancement. When? [See Advance- 
 ment — Resulting trust.] 97. 
 
 gifts or sales by, to parent raise a constructive trust. When I [See Fraud.] 
 157. 
 
 CHOSE IN ACTION. 
 
 maybe the subject of a trust, 44, 446. 
 assignor of, a trustee for the assignee, 236. 
 powers and duties of trustees of, 446. 
 
 their duty to realize, 447. 
 
 extent of their liability for neglect to realize, ib. 
 
 notice of the assignment of, must be given by trustees, 448. 
 they should have the securities delivered up to them, ib. 
 
 voluntary settlement of, how far good, 448. 
 
 liability of a trustee who releases a, 449. 
 
 COLONIES: 
 
 lands in, may be the subject of a trust, 44. 
 
 new trustees of lands in, appointed on petition under 1 Will. IV. c. 60; 202. 
 conveyance of lands in, by or in place of trustee, ordered on petition under 
 the same act, 302. 
 
 COMMITTEE : [See Lunatic] 
 
 not a trustee within the meaning of this work, 41. 
 
 COMPROklSE : 
 
 trustees have no general power to make, of claims, 344. 
 
 CONCEALMENT: 
 
 effect of, in converting a person taking under an instrument into a construc- 
 tive trustee. [See Fraud.] 148. 
 
 CONCURRENCE: 
 
 of cestui que trust in a breach of trust by trustee, a bar to his right to relief, 526, 
 
860 INDEX. 
 
 CONDITION : 
 
 no distinction between a condition, and a trust for payment of a charge, 130. 
 attached to powers of sale. [See Sale.] 478. 
 
 distinction between precedent and subsequent, ib. 
 impolicy of conditional powers, 479. 
 special conditions of sale, how far proper. [See Sale.] ib. 
 in restraint of marriage, validity of [See Marmage.] 496. 
 
 CONSIDERATION: 
 
 what will be sufficient to support a trust, 82, 83. 
 
 good or meritorious consideration insufficient, 83. 
 slight consideration sufficient, if valuable. [See Voluntary Tudst.] J 12. 
 proof of payment of, on a purchase by one person in the name of another. 
 
 in order to raise a resulting trust. [See Resulting Trust.] 94, 95. 
 effect of inadequacy of, in a conveyance in raising a constructive trust. [See 
 Fraud.] 152. 
 
 CONSIGNEE: 
 
 trustee in general cannot be, 277, 539. 
 .when trustee will be appointed, 540. 
 
 CONSTRUCTIVE TRUST: 
 
 the creation of trustees by, 144. 
 
 1st, where acquisition of the legal estate is affected with fraud. [See 
 
 Fraud.] ib. 
 2d, by equitable construction in the absence of fraud, 170. 
 contracting parties, trustees for each other, ib. 
 the person on whom the legal estate devolves for want of a trus- 
 tee, 171. 
 executor, who is indebted to his testator, ib. 
 volunteer taking from a trustee, though without notice, 172. 
 a disseisor, though with notice, not bound by a trust, ib. 
 heir of mortgagee in fee a trustee for his personal representative, 173. 
 mortgagee who is paid off, a trustee for mortgagor, ib. 
 trustees de son tort, ib. 
 banker not a trustee for his customer, ib. 
 Bank of England not bound by a, ib. 
 trustees by, how far within the acts empowering the court to appoint new 
 trustees, or to order a conveyance on petition, 199^ 204, 205, 298. 
 
 CONTINGENT INTEREST: 
 
 may be the subject of a trust, 44. 
 
 CONTINGENT REMAINDER: 
 
 trustees to preserve, have a vested legal estate, 236, 318. 
 
 devise in fee to trustees to preserve, restricted to an estate ptw autre vie, 240. 
 
 devise to trustees to preserve, without any words of limitation, gives them 
 
 an estate p!(r autre vie, 248. 
 origin of estate of trustees to preserve, 318. 
 conveyance by trustees to preserve, before the contingency happens, a 
 
 breach of trust, 323. 
 trustees to preserve, may join in destroying the remainders. When ? 319. 
 
 when the court will compel them to join, 321. 
 
 their concurrence necessary. When? 323. 
 
 effect of Fines and Recoveries Act, 3 & 4 Will. IV. c. 74, ib. 
 duty of trustees to preserve, to prevent waste by tenant for life, ib. 
 the lord's estate in a copyhold will preserve, 324. 
 effect of 7 & 8 Vict. c. 76, s. 8, in abolishing, ib. 
 
 CONTRACT : 
 
 effect of, in creating a constructive trust. [See Constructive Trust.] 171. 
 by trustee for sale of estate not enforced, if improper, 282, 477. 
 
 CONVERSION : 
 
 real estate directed to be sold, but left undisposed of, not converted between 
 
 heir and next of kin, 127, 477. 
 exception in case of money directed to be laid out in land. How far good ?ib. 
 
INDKX. 861 
 
 CONVERSION— Canfinued. 
 
 no conversion of property where th6 trusts fail by lapse or otherwise, 142. 
 seals, if testator's intention is to efl'ect an absolute conversion, 143. 
 of improper securities, duty of trustees to make, 379. 
 
 their liability for not making. [See Investment.] 380. 
 perishable securities settled for life, duty of trustees to convert, 3R6. 
 rule for conversion applies to what securities, ib. 387. 
 does not apply where there is a specific gift of the securities, 390. 
 instances of such specific gifts, ib. 391. 
 rule applies to reversionary interests, 393. 
 of infant's trust property, rule against making, 3_95. 
 
 relative interests of cestui que trusts for life, and in remainder not to be affected 
 by the conversion of existing securities by the trustees, 483. 
 
 CONVEYANCE : 
 
 effect of an unauthorized, by a trustee of the legal estate, 175, 188, 282. 
 duty of trustees to make, according to direction of cestui que trust, 278. 
 trustees refusing to make, without reason fixed with costs. When ? [See 
 
 Costs.] 278, 555, 560. 
 cestui que trust cannot require conveyance from trustee, unless he has an im- 
 mediate certain equitable estate, 279, 557. 
 right of equitable tenant for life to require, from a trustee, 279. 
 or of equitable tenant in tail, ib. 
 or of purchaser of the equitable estate, ib. 
 
 or of the trustees of a resettlement made by the equitable owner, 2-89. 
 trustees cannot be required to make, of part of the estate, ib. 
 
 or by a different description from that by which they took, 280. 
 may require determination of the trust to be satisfactorily proved, ib. 
 must not convey after notice of any assignment or charge by cestui que 
 trust, 281. 
 as to covenants for title by trustees in, ib. 
 no objection to the use of the term " grant," ib. 
 under 1 Will. IV. c. 60, ib. 
 
 in case of disability of existing trustees. [See Disability — Infant — 
 
 Lunatic] 287, 8, 9. 
 by trustees out of the jurisdiction. [See Jurisdiction.] 290. 
 where it is uncertain, 
 
 who was the survivor of several trustees, ib. 
 or whether the trust be living or dead, 291. 
 or who is heir, ib. 
 where existing trustee refuses to convey, ib. 292. 
 where he dies without heir, 290. 
 may be obtained either by suit or on petition, 292. 
 by suit, when, and mode of proceeding, 292, 3. 
 
 by petition, when, and mode of proceeding. [See Petition.] 293, et seq. 
 how to be framed and executed, 296, 7. 
 costs of, 300. 
 by whom to be executed, 301, 2. 
 
 COPYHOLDS : 
 
 may be the subject of a trust, 45. 
 
 not within the Statute of Uses, 230. 
 
 fines and heriots due on death or alienation of trustees of, 279, 430. 
 
 equity will supply a surrender of, in favor of creditor, 349. 
 
 danger of vesting in a'single trustee, or a small number of trustees, prior to 
 
 the late Escheat Act, 430. 
 amount of fine on admission how fixed, where large number of trustees, ib. 
 fines, how to be raised by trustees, ib. 
 duty of trustees to renew, held on lives, ib. 431. 
 trustee renewing in his own name, holds on the old trusts, ib. 
 admission of trustees should notice the trust instrument, ib. 
 duty of trustees, who are not admitted to enter notice of the trust instrument 
 
 on the Rolls, 431. 
 power of trustees to enfranchise, ib. 
 are within the Mortmain Act, 456, 7. 
 
862 INDEX. 
 
 CORONER: 
 
 trustees not qualified to vote for, 276. 
 
 CORPORATION; 
 
 may create a trustee, to what extent, 46. 
 
 may be trustees, of what property, 48. 
 
 may be cestui que trusts, of what property, 52. 
 
 gift to, in trust does not imply a trust for charity, 134, 461. 
 
 the crown is the visitor of all, of royal foundation, and where no heir of the 
 
 founder, 460. 
 effect of 71st section of Municipal Corporation Act, where corporations are 
 
 trustees for charity, 459. 
 
 COSTS:, 
 
 right of trustees to security for, of action brought in his name, 274. 
 of trustee who disclaims, after being made a party to a suit, 227, 566. 
 of appointing new trustees under a power, 189. 
 of appointing new trustees by a suit, 196. 
 
 by petition, 209. 
 of a deed of disclaimer, 227. 
 
 of a petition for conveyance from trustee under 1 Will. IV. c. 60; 304, 568. 
 of the conveyance made under an order upon such a pethion, 301, 568. 
 of investing trust-moneys, how to be paid, 383. 
 of raising portions, 368. 
 
 trustee who disclaims, has his costs only as between parly and party, 547. 
 liability of trustees to, in suits with strangers, 551. 
 
 entitled to their costs only as between party and party in such suhs, ib. 566. 
 
 extra costs, how recovered by the trustees, 552, 567. 
 right of trustees to, in suits by cestui que trusts, 552. 
 not allowed unnecessary costs, 553. 
 
 trustees severing in their defence refused the additional costs. When ? ib. 
 
 apportionment of the single costs in that case, ib. 
 
 costs of full answer disallowed. When? 554. 
 
 of unsuccessful application for an act of parliament, ib. 
 where suit is occasioned by improper conduct of trustees, ib. 
 1st, cases where they have been only deprived of their costs, 555. 
 
 where they retire from the trust without reason, ib. 
 exceptions to that rule, ib. 
 
 where they refuse to convey, ib. 
 
 unless the refusal is under legal advice, ib. 556. 
 
 or is made with sufficient reason, ib. 
 
 where suit occasioned by the trustee's breach of trust, 556. 
 exceptions to that rule, 557. 
 2d, cases where trustees decreed to pay costs, ib. 
 
 where suU is occasioned solely by their misconduct, ib. 558. 
 
 where there is any fraudulent behavior on their part, ib. 
 
 where there is a breach of trust, though without fraud, ib. 
 exceptions to that rule, 561. 
 guilty trustees only fixed with the costs, 563. 
 apportionment of costs, where suit is occasioned only in part by breach of 
 
 trust, 564. 
 of trustees, taxed as between solicitor and client. When? 565. 
 
 where there is no fund in court, 566. 
 
 when only as between parly and party, ib. 
 
 their right to extra costs out of the trust fund, 567. 
 lien of trustees on the trust estate for their costs, ib. 
 
 not extended to solicitors and agents employed by them, ib. 
 principle of taxation, once adopted in a suit, followed afterwards, 568. 
 out of what fund they must be paid, ib. 
 debt due from a trustee set off against his costs, ib. 
 payment by trustees of bills of costs, how far binding on cestui que trusts, ib. 
 
 duty of trustees to have the bills taxed, ib. 
 
 amount improperly paid, disallowed them, ib. 
 
 one of several trustees may apply to have bill of costs taxed, 569. 
 cestui que trusts entitled to only one set of costs against trustees, ib. 
 
INDEX. 863 
 
 CO-TRUSTEES: 
 
 possession of one of several, prevents Statutes of Limitation from running, 264. 
 
 one of several, cannot sign certificate of a bankrupt debtor, 275, 305. 
 
 have all equal power, 305. 
 
 must all join in sales, leases, &c. of trust estate, ib. 
 
 what acts by one of several, will bind the others, 306. 
 
 possession of one, is the possession of all, ib . 
 
 recognition of a debt by one, how far binding on the others, ib. 
 
 notice to one, how far notice to all, ib. 307. 
 
 one, having disclaimed need not join in subsequent acts, 225, 307. 
 
 secus, if he has accepted the trust, and has released his estate, 307. 
 decision of the majority, how far binding on all, 308. 
 proof of debt by one of several, 308, 449. 
 taxation of costs on application of one of several, ib. 569. 
 power of one of several, to receive rents and dividends, ib. 
 signatures of cheques on bankers by all, how far requisite, 308. 
 liable for each other's breaches of trust. When? 309. 
 
 exception where the act is necessary for discharge of the trust, 3 1 0, et seq. 
 
 receipt of income of trust property by one of several, not improper, 311. 
 
 effect of joining in receipts for the sake of conformity, ib. 
 
 a trustee, who receivespart of the trust-money, liable for the whole, 313. 
 
 liability of one, who acts on false representations of co-trustee, ib. 
 
 where ihey divide the management of the trust estate, 314. 
 
 may bind themselves to answer for each other's acts, ib. 
 
 duty of trustees to proceed against co-trustees for breach of trust, ib. 
 
 usual indemnity clause will not exonerate them from their liability, ib. 
 
 liability of, for the other's acts discharged by acquiescence of cestui que 
 trust, ib. 
 or if cestui que trust treat the defaulting trustee only as liable, ib. 315. 
 
 remedy of, against the others, if held liable for their breach of trust, 315. 
 
 right of, to contribution in respect of a joint breach of trust, ib. 
 
 must all join in presentation to a living, 443. 
 
 one of several, may sue the others for a breach of trust. When? 519. 
 
 necessity of joining as defendants all who are implicated in a breach, of 
 trust, ib. to 521. 
 
 decree, when made, may be enforced against each one separately, 521. 
 
 COVENANT: 
 
 for title by trustees, what are requisite, 281. 
 
 personal, entered into by trustees, how far specifically enforced against them, 
 
 282, 508. 
 liability of trustees for, contained in leases held in trust, 432, 508. 
 their right to be indemnified against, 432, 439. 
 
 CREATION OF TRUSTEES: 
 
 by parol. [See Parol Trust.] 55, 59. 
 by instrument in writing, 63. 
 at common law, ib. 
 since the Statute of Uses, ib. 
 
 Irustees^may be created by deed or will or other writing, ib. 
 declaration of trust may be separate from the conveyance, 64. 
 must be contemporaneous with it, ib. » 
 
 may be by an informal writing, ib. 
 must be stamped, ib. 
 
 creates a perfect tide in cestui que trust, 65. 
 direct fiduciary expressions requisite for the, ib. 
 what expressions will be sufRoient, ib. 66. 
 by the effect of precatory words. [See Precatory Words.] 71. 
 by voluntary disposition. [See Voluntary Creation of Trust.] 82. 
 by implication or construction of law. [See Resulting Trust, and Con- 
 structive Trust.] 91. 
 by substitution in the place of those already created. [See New Trustees.] 
 190. 
 
864 INDEX. 
 
 CREDITORS: 
 
 voluntary conveyance in trust for, how far binding, 82. 
 
 transaction between one, and the debtor in fraud of the other creditors, raises 
 
 a constructive trust. [See Fraud.] 163. 
 constructive trust in favor of, not barred by acquiescence, 168. 
 trust deed for benefit of. [See Debts.] 336. 
 maybe trustees under a deed forpayreient of grantor's debts, 343. 
 doctrine of election does not apply to, 349; 
 
 by specialty have no preference over those b)' simple contract under a trust 
 for payment of debts, ib. 
 
 CROWN: [See Sovereign.] 
 
 CURTESY, ESTATE BY THE: 
 
 estate of feme trustees not liable to, 269. 
 
 CY PRES: 
 
 illegal executory trust executed cy pres, 333. 
 trusts for charity executed cy pres. When 1 462. 
 
 D. 
 
 DEBTS: [See Chose in Action — Creditor.] 
 
 a trust to pay, gives the trustees the legal estate. When ? 231. 
 
 whether a devise to trustees without words of limitation in trust to pay, will 
 
 give them an estate in fee, or a chattel interest. Qucere ? 242. 
 proof of, by one of several co-trustees, 308. 
 trust deed for the payment of, when binding on all parlies, 336. 
 not within Stat, of Fraudulent Devises, ib. n. 
 
 or stat. 13 Eliz. c. 4, unless attended with fraud, ib. 
 void within the Bankrupt or Insolvent Acts. When? 337, n. 
 execution of, by creditors or trustees how far necessary, 337. 
 of suits to enforce the execution of trusts of, 338. 
 order of payment of debts under, ib. 
 no preference of specialty debts, ib. 
 what debts to be paid, ib. 339. 
 
 assets not marshalled as between creditors claiming under, 339. 
 creditors may obtain benefit of, after the prescribed time, 340. 
 effect of a discretionary power for trustees to examine and admit 
 
 claims, ib. 
 trust for payment of debts, will make them bear interest. When? ib. 
 will prevent Statutes of Limitation from running. When? 341. 
 how money to be raised for payment of debts, under a deed, 342. 
 liability of a purchaser to see to the payment of debts generally, ib. 
 when they are scheduled, or otherwise particularized, ib. 
 or when there has been a decree for their payment, ib. n. 
 effect of 7 & 8 Vict. c. 76, s. 10, 343, n. 
 trust deeds for payment of, favored in equity, 343. 
 trusts for payment of, not within the Thellusson Act, 344. 
 any surplus after payment of, in trust for the grantor, ib. 
 trustees, have no power to compromise suits, ib. 
 must not commit execution of the trust entirely to an agent, ib. 
 trust for paymenfof, created by will, 344. 
 can only be created as to real estate, ib. 
 real estate charged with debts by a general direction for their payment. 
 
 When? ib. 344. 
 a charge so created, rebutted. When? 345. 
 
 effect of devisees of the realty being also appointed executors, 347. 
 effect of a particular part of the really being expressly charged, 
 346. 
 Revises for payment of, favored and assisted in equity, 349. 
 not within Statute of Fraudulent Devises, ib. 
 
 specialty creditors have no preference over those by simple contract, ib. 
 personal estate primarily liable notwithstanding a trust for payment of, 
 out of real estate, 350. 
 
INDEX. 865 
 
 DEBTS.— Continued 
 
 what will amount to an exoneration of the personal estate, 350. 
 parol evidence inadmissible to prove the intention to exonerate, 354. 
 how the money to be raised for payment of, under a will, ib. 
 
 by sale or mortgage, ib. 
 
 unless trustees expressly confined to rents and profits, 355. 
 
 sale may be by public auction or private contract, 356. 
 what debts are to be paid under the trust, ib. 
 
 only those contemplated by the will, ib. 
 
 not those barred by the Statute of Limitations, ib. 
 
 debts by infant for necessaries, 357. 
 
 only debts for which testator is personally liable, ib. 
 
 and which are actually due, ib. 
 
 not debts arising from a misfeasance, ib. 
 order in which debts are to be paid, 358. 
 
 a devise or charge for payment of debts, creates equitable assets, ib. 
 
 assets marshalled in favor of .simple contract creditors, 368. 
 
 trustee cannot prefer his own debt, 359. 
 order in which real estate is to be applied in payment of debts, 358. 
 devise for payment of debts will not make them bear interest, 359. 
 surplus after payment of debts results to the heir, ib. 
 
 DECREE : 
 
 for sale, converts defendant into a trustee within 1 Will. IV. c. 60 : 299. 
 effect of, for payment of debts in rendering a purchaser from the trustees 
 
 liable to see to the application of the money, 342. 
 of a court of equity, the most effectual release to a trustee, 583. 
 against several co-trustees for a breach of trust may be enforced, severally 
 
 against each trustee, 521. 
 
 DEEDS: [See Title-Deeds.] 
 
 made through mistake or ignorance, relieved against. When? 149. 
 persons fraudulently preventing the execution of, will be constructive trus- 
 tees. [See Fraud.] 150. 
 so those, who destroy or suppress deeds, 151. 
 proof of the deeds in such cases, ib. 
 
 DELAY: [See Limitation, Statutes of — Time.] 
 
 in prosecuting a claim founded on a trust not favored, 168. 
 
 constructive trust barred by, though founded on fraud, ib. 265, 525. 
 
 but a general demurrer will not hold to a bill on the ground of, 168. 
 
 will not prejudice a person, unless he is aware of his rights, ib. 
 
 defendant who raises the defence of delay, must prove the plaintiff had 
 
 knowledge of his rights, 168. 
 proof of the fraud mustbe very clear after great delay, 169. 
 decree for account limited to the filing of the-bill, and made without costs 
 
 on the ground of, ib. 
 will not bar the equitable claim of creditors, charities, or societies, 170, 266. 
 
 DELEGATION OF A TRUST: 
 
 disability of trustees to make, 175, 540. 
 
 where the delegation is made by devise in a will, 541. 
 
 DEVISE : 
 
 effect of a general, in passing estates held in trust, 283. 
 
 trust estates will not pass by. When? 285. 
 whether a, to several persons as tenants in common, will pass trust estates. 
 
 QiuBre? 284. 
 whether personal estate held in trust will pass by a general gift, 287. 
 whether trustee may delegate a subsisting trust by devise. QuareJ 283 n., 
 473, 541. 
 
 55 
 
866 INDEX. 
 
 DEVISEE : 
 of trustee, 
 
 how far he may execute powers given to original trustee, 283, note 287, 
 
 473, 541. 
 he may disclaim, 287. 
 
 DISABILITY: [See Infant — Ltjnatic— Married Woman.] 
 
 appointment of new trustees upon the, of existing trustees. [See New 
 
 Trustees, Appointment of.] 192, 200. 
 conveyance of estate of trustees laboring under, 287. 
 how far they might convey at common law, ib. 
 statutory jurisdiction of the court to direct a conveyance, 288. 
 law now governed by 1 Will. IV. c. 60, ib. 
 
 effect of that act and the mode of proceeding under it, 289 to 294. 
 conveyance by trustees under, how enforced, 298. 
 
 DISCHARGE: [See Release.] 
 
 of trustees from their office, five methods of effecting, 579. 
 
 1st, by expiration of the trust, and conveyance of "the estate, ib. 
 
 2d, by concurrence of all the cestui que trusts, ib. 
 
 3d, by appointment of a new trustee under a power [See New Trustee.], ib. 
 
 4th, by death of one of several co-trustees, 580. 
 
 5th, by decree of the Court of Chancery. [See Rebio-val.] ib. 
 
 DISCLAIMER: [See Acceptance.] 
 when it may be made, 221. 
 
 not after an acceptance of the trust, 219, 221. 
 
 after death of the acting trustee, 221, 303. 
 
 by the heir or personal representative of original trustee, when, 221, 
 303. 
 
 whether ^me coverte trustee may disclaim by deed. Qucere? 223. 
 how it maybe made, 223. 
 
 may be by parol, ib. 224. 
 
 conduct of a trustee may amount to a, 224. 
 
 of freeholds need not be by matter of record, ib. 
 
 may be by writing not under seal, ib. 
 
 by an answer in a suit, ib. 
 
 a deed-poll the proper mode of making, ib. 
 how it should be framed and worded, 225. 
 
 may be made notwithstanding lapse of time since creation of the 
 trust, ib. 
 effect of a disclaimer, ib. 
 
 the trust estate vests in the other trustees, ib. 304, 307. 
 or in the heir of the devisor if all disclaim, 225. 
 
 as well as the powers annexed to the office, 226. ■ 
 
 secus, powers implying personal confidence, ib. 
 
 will defeat lord of manor of his right to fines, ib. 
 
 when made by deed, is irrevocable, 227. 
 
 secus, if made by an answer in a suit, ib. 
 expense of disclaimer borne by the trust estate, ib. 
 
 trustee, who has disclaimed, ought not to be made party to a suit, ib. 547. 
 seats, if he has not actually disclaimed, ib. ib. 
 
 after disclaimer, entitled to costs only as between party and party, ib. ib. 
 devisee of trustee may disclaim, 287. 
 husband of feme trustee may disclaim, when, 304. 
 
 DISCRETIONARY POWER : 
 
 of selection or distribution does not affect the stringency of a trust, 66, 70. 
 
 cannot in general be exercised by the court, 70, 486. 
 
 may be exercised by new trustees appointed by the court. When? 211. 
 
 how affected by the disclaimer of any of the donees, 226. 
 
 nature and creation of discretionary powers, 485. 
 
 distinction, whether the discretion is on a matter of opinion or of fact, 
 486. 
 how far trustees controlled by the court in exercise of such powers, 488. 
 not in general compellable to exercise them, ib. 
 
INDEX. 867 
 
 DISCRETIONARY POWER.— Continued. 
 
 unless there is mala fides, 488. 
 must be exercised in the prescribed form, ib. 
 may be exercised by surviving trustees. When ? 489. 
 
 or by heir or personal representatives of original trustee, ib. 
 
 or by acting trustee, ib. 
 
 by assignee or devisee of original trustee. When ? ib. 
 four sorts of discretionary powers, ib. 
 1st, power of making a gift out of the trust property, ib. 
 
 when the exercise of the power is a condition precedent to the gift, 
 490.. 
 
 where it is subsequent, 491. 
 2d, power of selection and distribution, 492. 
 
 how to be exercised, and effect of the exercise, ib. 493. 
 3d, powers of management over trust estate. [See Lease — Sale — Securi- 
 ties — New Trustees.] 494. 
 4th, powers of determining matters of personal judgment, 495. 
 
 power of consenting to marriage. [See Marriage.] ib. 
 
 DISSEISOR: 
 
 though with notice of a trust is not a constructive trustee, 172. 
 
 DISSENTERS: 
 
 trust to maintain a place of worship for, how to be executed, 467. 
 
 DOWER: 
 
 estate of trustees, not liable to, 269. 
 
 DRUNKARD : 
 
 conveyance by, will raise a constructive trust. When? [See Fraud.] 152. 
 
 DURATION : 
 
 of estate of trustees. [See Estate.] 239. 
 
 DURESS: 
 
 conveyances obtained from aperson under, raise a constructive trust. When ? 
 [See Fraud.] 156. 
 
 E. 
 
 ESCHEAT : [See Sovereign — Attainder — Forfeiture.] 
 
 lord taking trust property by, how far bound by the trust, 50, 429. 
 
 lord by, not entitled by resulting trust to a lapsed or void charge, 138. 
 
 estate held in trust not liable to,, since 4 & 5 Will. IV. c. 23 ; 49, 269, 430. 
 
 right of trustee of real estate to hold beneficially against the lord by, on death 
 of cestui que trust without heir, 270, 430. 
 
 personal estate held in trust will escheat to the crown as bona vacantia on the 
 failure of next of kin of cestui que trusts, 270. 
 
 crown claiming trust property by, cannot call for its conversion into person- 
 alty as against the heir, 271. 
 
 though the estate has been actually converted, the crown will not take, ib. 
 
 ESTATE OF TRUSTEES : [See Legal Estate.] 
 origin of, 41. 
 
 three modes of creating since the Statute of Uses, 229. 
 1st, a use limited upon a use, 229. 
 2d, a limitation of copyholds or leaseholds to nses, ib. 
 3d, by construction, in order to the due performance of the trusts. [See 
 
 Legal Estate.] 231. 
 extent and duration of, when created by will, 239. 
 
 duration of trustee's estate co-extensive with the requirements of the 
 
 trust, ib. 
 1st, their estate restricted to a smaller interest, ib. 
 
 devise to trustees and their heirs restricted to an estate pur autre 
 vie, ib. 
 
868 INDEX. 
 
 ESTATE OF TRUSTEES.— Continued. 
 
 where the trust is only for life of cestui que trust, 239. 
 or to preserve contingent remainders, 240. 
 devise in fee restricted to a chattel interest, ib. 
 
 vrhere the trust is only for years, ib. 
 or to a base fee determinable on the satisfaction of the trusts, ib. 
 effect of a subsequent limitation to the trustees after a devise in fee 
 
 to them, ib. 241. 
 express devise of the use to the trustees vfill not prevent the restric- 
 tion of their estate, 241. 
 the smaller estate must be sufficient for all purposes of the trust, ib. 
 a devise in fee not restricted to a. smaller interest where the trust 
 
 is to sell, or mortgage, or lease, ib. 
 or to convey, or divide the estate amongst parties, 242. 
 2d, trustee's estates enlarged to meet the objects of the trust, ib. 
 where there are no words of limitation, ib. 
 
 if the trust be to sell, convey, or lease, ib. 
 so, where the limitation is to the trustees, their executors, adminis- 
 trators and assigns, ib. 
 whether a devise to trustees without words of limitation, in 
 trust to pay debts, &c., passes a fee or a chattel interest. 
 QuiEre'? 243. 
 where the estate is limited to trustees, their executors, &c., they 
 
 take a chattel interest only, 245. 
 a devise to trustees, their executors, &c., gives them an estate 
 
 in fee, if required by the trust, ib. 
 effect of a devise to trustees without words of limitation, fol- 
 lowed by a trust to be executed by them and their heirs, 
 244. 
 under a devise without words of limitation trustees take such 
 an estate as will enable them to discharge the trust, 245, 
 et seq. 
 duration of, of personal estate. 248. 
 effect of 1 Vict. c. 26, ib. 
 extent and duration of, where created by deed, 249. 
 
 whether an estate in fee limited to trustees by deed can be construc- 
 tively restricted to a smaller interest. Qiuzre 1 248. 
 whetlier an estate given them without words of limitation, may be en- 
 larged. Quffire.' 251. 
 a partial estate expressly given cannot be enlarged. Semble, ib. 
 reconveyance or surrender of, presumed. When? [See Reconveyance — 
 
 Surrender — Term.] ib. 252. 
 effect of Statutes of Limitation upon. [See Limitation, Statutes of — Time.] 
 263. 
 not barred by possession of cestui que trust, 266. 
 
 unless it be adverse, ib. 
 barred by adverse possession of strangers, 267, 502. 
 although cestui que trust be an infant. Semble, 268, 403, 503. 
 secus, if trustee be under disability. Semble, 253, 503. 
 of the incidents to, and legal properties of, 269./ 
 
 not liable to dower or curtesy or incumbrances of trustees, ib. 
 nor to escheat or forfeiture, ib. 
 of the disposition of, 
 
 by deed. [See Conveyance.] 278. 
 by will. [See Devise.] 283. 
 
 by trustees under disability. [See Conveyance, Disa- 
 bility.] 287. 
 of the legal devolution of, 303. 
 
 on death of sole or last surviving, devolves on heir or personal repre 
 sentative, ib. 
 
 EVIDENCE: [See Parol Evidence.] 
 
INDEX. 
 
 EXCHANGE: 
 
 heir of a party, who has contracted for, is not a trustee within 1 Will. IV. c. 
 60; 299. 
 power of sale, authorizes an exchange by trustee. When? 475. 
 
 EXCHEQUER BILLS: 
 
 investment in, not authorized by trust to invest on government securities, 370. 
 proper as a temporary measure pending a reinvestment, 375. 
 
 EXECUTOR : 
 
 not a trustee within the scope of this work, 41. 
 title of, to residue undisposed of, 114. 
 
 legacy to, before 1 Will. IV. c. 40, made hira a trustee of residue undis- 
 posed of, 123. 
 secus, if the residue were expressly given to him, ib. 
 effect of 1 Will. IV. o. 40, on the claim of, to residue undisposed of, ib. 
 purchaser from, with knowledge of its being a devastavit, affected with a con- 
 structive trust. When? 165. 
 indebted to his testator, is a constructive trustee to the extent of the debt, 171. 
 an, in trust, is a trustee within 1 Will. IV. c. 60 ; 205, 297. 
 although he refuses to prove, 298. 
 or has not proved, ib. 
 probate of will by, is an acceptance of the trust, 214. 
 when he ceases to bear that character, and assumes that of trustee, 237, 364. 
 distinction between, and a trustee as to his liability for joining with co- 
 executor in signing receipts, 312. 
 or in his liability on covenants in a lease to testator, 432. 
 
 EXECUTORY TRUST: 
 
 not enforced on precatory words, 81, 335. 
 
 what is an, 328. 
 
 distinction between those created by marriage articles and by will, ib. 
 
 when created by marriage articles, ib. 
 
 how executed, 329. 
 
 settlement when rectified in equity, ib. 
 when created by will, ib. 
 
 how executed, ib. 
 
 the words will be modified. When? 331. 
 what expressions will make a trust executory, 334. 
 illegal executory trust executed cy pres, 333. 
 
 where created by informal or untechnical expressions, how executed, ib. 
 of personal estate, good, 335. _^ 
 
 how far trustees may safely act in execution of, ib. 
 they cannot accept a different settlement from that agreed by articles, ib. 
 
 F. 
 
 FAMILY : 
 
 whether a sufficiently certain description in a trust created by precatory 
 
 words, 76, 
 may have different meanings according to the context, 78. 
 who entitled under a trust for, 79. 
 
 FATHER: [See Parent.] 
 
 FELON : [See Attainder — Escheat — Fohfeiture.] 
 
 FEME COVERTE : [See Married Woman.] 
 
 FINE: 
 
 due on death or alienation of trustee of copyholds, 269, 430. 
 
 on admission of copyholds or renewal of leaseholds, how to be raised, 430, 
 
 432. 
 proportions of, how borne between the persons beneficially entitled, 436. 
 
870 
 
 INDEX. 
 
 FOREIGN COUNTRY: 
 
 property in, may be the subject-matter of a trust, 44. 
 whether real or personal, ib. 
 
 act 1 Will. IV. c. 60, does not authorize a petition for convey 
 ance of, by a trustee, 302. 
 investment in funds of, improper without a special authority, 377. 
 real estate in, not within the Mortmain Act, 457. 
 trust of real estate in England for foreign charity is within that act, ib. 
 court cannot direct a scheme to administer a charity in," 468. 
 
 FOREIGNER: 
 
 ought not to be appointed as new trustee, 188. 
 feme trustee removed on her marrying a, 191. 
 
 equitable right of a married woman to a settlement out of her trust property 
 not extended to foreigners, 412. 
 
 FORFEITURE: [See Escheat— Attainder.] 
 
 right of trustee of real estate to hold beneficially on the, of cestui que trust, 
 
 270, 430. 
 personal es/a/e held in trust will go to the Crown on the, of cestui que trust, for 
 
 treason or felony, 271. 
 validity of provisions for, on alienation or bankruptcy of cestui que trust for 
 
 life, 395. 
 
 FRAUD : [See Frauds, Statute of.] 
 
 parol trust of land established in case of. [See Parol Trust.] 59. 
 parol evidence admissible to prove trust in cases of, ib. 60. 
 effect of, in creating a constructive trust, 144. 
 four classes of, 145. 
 
 1st, fraud arising from facts of imposition, ib. 
 surprise, intimidation, &c., ib. 
 misrepresentation or concealment, ib. 
 suggestio falsi, 146. 
 
 as to part of a transaction will vitiate the whole, ib. 
 immaterial whether it is made wilfully or through igno 
 
 ranee, ib. 
 may be by actions as well as words, 147. 
 must be material, ib. 
 
 and of facts not within the knowledge of the other party, ib. 
 not of a mere matter of opinion, ib. 
 suppressio veri, 1 47. 
 
 what concealment of facts will create an equity, ib. 
 imperfect information given, 148. 
 conveyances made through mistake or ignorance, ib. 
 where ignorance or mistake is of law and not of fact. 
 
 Qucere? 149. 
 conveyance to bond fide purchaser not set aside for mis- 
 take or ignorance of vendor, ib. 
 the fraudulently preventing the execution of instruments, 150. 
 the destruction or suppression of instruments, 151. 
 
 proof of the instrument in such cases, ib. 
 fraudulent transaction binding on the guilty party, 149. 
 relief given only on terms of returning consideration received, ib. 
 equity has no jurisdiction as to fraud in obtaining a will, 150. 
 parol evidence admissible to prove the fraud, ib. 
 2d, fraud apparent from the value and subject of the bargain, 152. 
 inadequacy of consideration will not amount to fraud, ib. 
 
 unless very extreme, ib. 
 purchase from an heir of his expectancy. [See Heir.] 153. 
 purchases of reversions generally. Quffirc? [See Reversion.] ib. 
 3d, fraud arising from the circumstances and condition of the con- 
 tracting parties, 153. 
 transactions with persons non compotes mentis, 154. 
 or with persons of weak intellect, ib. 
 
INBBX. 871 
 
 FRAVD.— Continued. 
 
 what sufficient mental weakness to raise an equity, 154, 155. 
 not old age, 155. 
 drunkenness. When? ib. 
 conveyances obtained from persons in duress or fear, 156. 
 
 or in prison, ib. 
 undue advantage taken of necessity or distress, ib. 
 
 abuse of influence or confidence subsisting between the parties, 
 . ib. 157. 
 
 transactions between parent and child. [See Parent.] ib. 
 or between guardian and ward. [See Guardian.] ib. 
 or quasi guardians, 158. 
 
 or between trustee or cestui que trust. [See Trustee.] ib. 
 purchases by a trustee from himself, 159. 
 trustees making profit of the trust estate, 160. 
 transactions between attorney and client. [See Attorney.] ib. 
 or between other persons in a confidential situation, 162. 
 as intimate friends or medical attendants, ib. 
 no fraud presumed in these last cases, ib. 
 third persons though innocent cannot benefit by the 
 fraud, ib. 
 4th, fraud as affecting third persons not parties to the transaction, 163. 
 transactions in fraud of creditors. [See Creditors.] ib. 
 conveyances by a woman on point of marriage. [See Husband.] ib. 
 transactions contrary to law or public policy, 164. 
 
 terms on which relief is granted, ib. 
 gifts upon a secret trust for illegal purposes, ib. 
 purchases from a trustee with notice of the trust. [See Notice.] ib. 
 purchase from executor with knowledge of its being a devastavit, 165. 
 fraud presumed in some cases, 166. 
 in general it must be proved, ib. 
 parol evidence admissible to prove fraud, ib. 
 
 or to prove mistake or surprise, 167. 
 such evidence not regarded with favor, ib. 
 subsequent declarations not admissible, ib. 
 proof, where the fraud is admitted by defendant's answer, ib. 
 where it is denied, ib. ' 
 
 where fraud is set up as a defence again,st a claim, ib. 1 68. 
 delay in prosecuting a claim founded on, not favored. [See Acquies- 
 cence — Delay.] 168. 
 after great length of time proof of, must be very clear, ib. 
 time runs only from the discovery of, 266. 
 
 FRAUDS, STATUTE OF: [See Fraud.] 
 
 effect of, on parol trust. [See Parol.] 55. 
 the seventh section of, 56. 
 
 applies only to lands, 57. 
 
 what property within that section, ib. 
 the king not bound by, 59. 
 
 resulting and implied trusts exempted from its operation, ib. 91. 
 cannot be taken advantage of by a person guilty of fraud, ib. 166. 
 what sufficient proof to take a parol trust out of the 7th section of, 61. 
 
 FREEHOLD : 
 
 disclaimer of trust estate of, need not' be by matter of record, 224. 
 powers and duties of trustees of, 428. 
 
 their duty to defend and assert the title at law, ib. 
 
 their right to the custody of the title-deeds, 272, 384,428. 
 
 and to possession and management of the estate, 273, 384, 428. 
 their power to grant leases, 429. 
 
 when it is their duty to take possession of the estate, ib. 
 extent of their powers of management generally) ib. 571. 
 FUNDS: 
 
 investment in. [See Investment — Stock.] 376. 
 
872 INDEX. 
 
 G. 
 
 GUARDIAN . [See Infant— Warb.] 
 
 not a trustee within the scope of this work, 41. 
 
 gifts to, or purchases by, from his ward, raise a constructive trust. When ■* 
 
 [See Fraud.] 157. 
 right of, to nominate to a living on vacancy of advowson held in trust for 
 infants, 442. 
 
 H. 
 
 HEIR: 
 
 no conversion as between, and next of kin claiming by resulting trust, 127, 1 42. 
 
 unless it be testator's intention to effect an absolute conversion. [See Con- 
 version — Resulting Trust.] 143. 
 
 purchases from an, of his reversionary interests create a constructive trust 
 for him. When? 153. 
 
 HEIR-LOOM : 
 
 duty of trustees of, when settled for life, 385. 
 HERIOT: 
 
 and fines due on the death or alienation of trustee of copyholds, 269, 430. 
 
 HUSBAND: [See Married Woman — Separation.] 
 may be trustee for his wife, 48. 
 secret conveyance by a woman before her marriage raises a constructive 
 
 trust for. When? 163. 
 of feme trustee is a trustee within 1 Will. IV. c. 60; 2o6, 299. 
 may disclaim. When? 304. 
 interest of. in and power over wife's trust estate, ib. 
 his interest in real estate held in trust for wife, 405. 
 power of, over wife's equitable term for years, 406, 410. 
 
 over lands held by an extent in trust for her, 406. 
 his interest in personal estate, held in trust for wife, 407. 
 
 trustees may refuse to transfer to him without a settlement, 408. 
 cannot safely transfer to him after a bill filed, ib. 
 
 where he will be considered a purchaser by settlement of wife's 
 fortune, 408. 
 purchase by settlement will include her future fortune. When? ib. 
 effect of inadequacy of the provision made by the settlement, ib. 
 purchase of part of her fortune not extended to the whole, ib. 
 purchase incomplete without a reduction into possession, 409. 
 his title to the income of wife's equitable property, though he refuses to 
 make a settlement, 412. 
 no such title, if he desert or refuse to maintain her, 413. 
 his right to have an absolute transfer of wife's fund upon her examination 
 
 and consent, ib. 
 what a sufficient reduction into possession by, of wife's equitable interests 
 to defeat her title by survivorship, 414. 
 assignment by act of law, or voluntary assignment, not such a re- 
 duction, 416. 
 nor an assignment for valuable consideration of reversionary interests, ib. 
 effect of assignment for valuable consideration of interests not reversion- 
 ary, ib. 
 his title by survivorship to her equitable personal estate, 418. 
 
 that title how far bound by a decree for a settlement in favor of chil- 
 dren, 418. 
 effect of a decree for asettlement where no children, 419. 
 his rights excluded by a trust for a separate use, ib. 
 
 nature and effect of a trust for wife's separate use. [See Married 
 
 Woman.] ib. 420. 
 he will be a trustee for wife's separate use, if no other trustee appointed, ib. 
 he must be made a defendant in a suit respecting wife's separate estate, 
 425. 
 
IKDBX. 873 
 
 HUSBAND.— Continuerf. 
 
 disposition by wife of separate estate in his favor, good, 425. 
 payment by trustees of wife's income to him, how far good, ib. 
 
 accumulations from such income received by him belong to him, ib. 
 validity of trust deeds for separation. [See Separation.] 426. 
 husband's title to income of property, settled on him and wife jointly, 427. 
 right of, to present to livings, held in trust for wife, 443. 
 may be sued for the wife's breach of trust, 520. 
 
 IDIOT: [See Lunatic — Disability.] 
 
 IGNORANCE: 
 
 instruments executed through, relieved against. When? 148. 
 
 where ignorance is of law, and not of fact. [See Deeds — Fraud— Mis- 
 take.] 149. 
 
 ILLEGAL PURPOSE: 
 
 trusts for, not enforced, 45. 
 
 gifts on a secret trust for. raise a constructive trust for heir-at-law, 164. 
 
 such a trust how proved, ib. 
 executory trust for, executed cy-pres, 333. 
 
 ILLEGITIMATE CHILDREN: 
 
 future, cannot be cestui que trusts, 54. 
 
 IMBECILITY: 
 
 of grantor, what will he sjifRcient to create a constructive trust. [See Fraud.] 
 154. 
 
 IMPLIED TRUSTS : [See Constructive Trusts.] 
 
 IMPROVEMENTS: 
 
 ^ trustees when authorized to lay out money in, 429, 571. 
 allowance for, to trustees on setting aside a purchase by them, 539. 
 
 INDEMNITY: 
 
 right of trustees to, against covenants in leases, 432, 439. 
 their ri^t to require an, when requested to convey, 580, 581. 
 
 INDIA: 
 
 trustee residing in, entitled to charge a commission, 574. 
 
 INFANT: [See Guardian — Ward — Advancement — Maintenance.] 
 may create a trustee, how far, 46. 
 may be a trustee, 46. 
 
 gifts by, to his guardian on coming of age, how far good. [See Fraud.] 157. 
 appointment of new trustee in place of. [See New Trustees, Appointment 
 
 or.] 192, 201. 
 bound by the act of his trustee as respects third persons, 268, 403. 
 conveyance by an infant trustee at common law, 287. 
 
 under act 1 Will. IV. c. 60; 289, 290. 
 whose estate has been improperly decreed to be sold, not a trustee within 
 1 VVill. IV. c. 60, ib. 
 secus, if the decree for sale was made in the lifetime of his ancestor, ib. 
 trustee, how compelled to convey, 298. 
 
 debt of, for necessaries within a trust for payment of debts, 357. 
 powers and duties of trustees for, 395. 
 
 money held in trust for, ought to be invested in three per cents., ib. 
 trustees must not change the nature of infant's property, 396. 
 Quare? the effect of the late Will Act, 1 Vict. c. 26; 397. 
 power of trustees for, to give discharges for trust money, 398. 
 how far the fund may be paid to the infant, or any person for him, ib. 
 legacy, to, how to be paid, 399. 
 
 fund may be paid to infant's guardian or trustee. When? ib. 
 trustees must not break in on infant's capital, ib. 
 
874 
 
 INDEX. 
 
 INYA'NT.— Continued. 
 
 except for necessaries. Semble, 399. 
 power of trustees to make advancements for. [See Advancement.] ib. 
 povper of trustees to allow maintenance to. [See Maintenance.] 400. 
 trustees for, liable for breaches of trust, 403. 
 
 not liable for accidental losses, 404. 
 entitled to their expenses, ib. 
 
 and to allowances for sums spent in repairs and im- 
 provements, 404. 
 duty of trustees for, to accumulate income. [See Accumu- 
 lation.] ib. 
 cestui que trust of an advowson may nominate on a vacancy, 442. 
 
 INQUISITION: 
 
 a mere trustee has not sufficient interest to traverse, 275. 
 
 INSOLVENT: [See Bankrupt.] 
 
 INSURANCE: 
 
 trustee has a sufficient interest to effect an, on a ship, 277. 
 
 policy of, powers and duties of trustees of. [See Chose in Action.] 446. 
 
 INTEREST : 
 
 trust by deed or will for payment of debts, will not make them bear interest, 
 
 340, 359. 
 on legacies, when given, and at what rate, 364. 
 on portions, 366. 
 trustees charged with, on sums applied by them in breach of trust, 374, 540. 
 
 at what rate, 374, 523. 
 
 ■with compound interest. When? ib. 
 
 option of cestui que trusts to take interest on profits, 374. 
 
 rule as to interest when and how far relaxed, 524. 
 
 interest must be prayed by the bill, 525. 
 on sums paid by trustees out of pocket allowed. When? 595. 
 
 INTIMIDATION: 
 
 instruments obtained through, will create a constructive trust. [See Fkaud.] 
 145. 
 
 INVESTMENT: 
 
 powers and duties of trustees, where there is an express trust to invest, 363. 
 trust to invest on real security, how to be executed, ib. 
 
 or on "real or personal'" security in the alternative, ib. 
 
 on "good" security, 369. 
 
 or to invest "at discretion," 369. 
 
 on "personal security," ib. 
 
 on " good private security," ib. 
 
 on " government" security, 370. 
 
 to invest " with all convenient speed," ib. 
 
 on real securities in Ireland under 4 & 5 Will. IV. c. 29, ib. 
 liability of trustees for neglect of trust to invest, ib. 
 
 charged with interest, when, and at what rate, 374. 
 
 cestui que trust's option to have interest on profits made, ib. 
 what amount of balances may be retained uninvested, 375. 
 trustees not liable for sums necessarily retained or uninvested, ib. 
 
 such sums must be kept distinct from their own moneys, 376. 
 duty of trustees to invest without any express trust to do so, ib. 
 
 three per cents, the proper investment, ib. 
 
 whether real securities are proper. Quare? 377. 
 
 purchase of land improper, unless specially authorized, ib. 
 
 mvestment on leaseholds improper, 378. 
 
 or in South Sea, Bank, or India stock, ib. 
 
 or in canal or rail way shares, or foreign funds, ib. 
 
 or on personal security, ib. 
 
 or employment in trade or speculative undertaking, 379. 
 duty of trustees to call in improper securities, ib. 
 
INDEX. 875 
 
 INVESTMENT.— Continued. 
 
 where there is an express trust to do so, 378. 
 
 or an order of the court, ib. 
 
 how far trustees may delay the conversion, ib. 
 
 where there is a specific gift of the existing securities, ib. 
 where there is no specific gift or mention of the existing securities, ib. 
 
 personal securities must be called in, 380. 
 
 and all securities except those of government, 381. 
 
 whether real securities should be called in, ib. 
 liability of trustees for not calling in improper securities, ib. 
 trustees cannot change proper investments without authority, ib. 
 effect of acquiescence by cestui que trust in an improper investment, 382. 
 trustees may maintain a suit to replace money improperly invested, 383. 
 power to invest includes a power to give discharges for money, ib. 
 purchase by a trustee, held to have been made in execution of the trust. 
 
 When? ib. 
 trustees for, entitled to be present at investigation of title before the master, ib. 
 costs of investment, how paid, ib. 
 duty of trustees to give information as to the investments, ib. 
 
 IRELAND: 
 
 effect of 4 & 5 Will. IV. c. 29, authorizing investment on real securities in, 370. 
 
 JOINT-TENANTS: 
 
 estate limited to trustees as, devolves upon the survivor, 303. 
 
 JUDGMENT: 
 
 estate of trustees not affected by his debts by, 269. 
 
 JURISDICTION: [See Suit.] 
 of equity over trustees, 42. 
 
 equity has none as to fraud in obtaining wills, 1 50. 
 appointment of new trustees in place of one out of the, 202. 
 
 who consi'dered resident out of the, 203. 
 conveyance of estate of trustees who are out of, how obtained, 290. 
 
 LAPSE: 
 
 effect of, in creating a resulting trust. [See Resultikg Trust.] 134. 
 
 LEASE: 
 
 a trust to, gives trustees the legal estate, 232. 
 
 secu^ a mere power to lease, ib. 
 a devise in trust to, requires the legal fee to be vested in the trustees, 242. 
 a devise in trust to lease, without any words of limitation, enlarged to a 
 
 fee, ib. 
 power of trustees to grant, without any express trust, 428, 482. 
 by trustees of charity estates, 463, 465. 
 
 general rule as to the nature and duration of the terra to be granted, ib. 
 
 leases for lives when supported, ib. 464. 
 
 or for long term of years, or in reversion, or with covenants for re- 
 newal, ib. 
 
 what consideration should be taken for the lease, ib. 
 
 particular mode of leasing prescribed by the trust must be followed, 
 465. 
 
 trustees must not reserve any personal benefit, ib. 466. 
 
 lease miist not be granted to one of themselves, ib. 
 by trustees contrary to their power, set aside, 480. 
 what leases may be granted under the usual power, 481. 
 
 lands usually let, ib. 
 
 unopened mines, ib. 
 
876 
 
 INDEX. 
 
 LEASE.— Continued. 
 
 for lives or years, 481. 
 
 for what term, ib. 
 purchaser of lease affected with notice of facts appearing on its face, 482. 
 power to grant building leases not inserted as an " usual power," ib. 
 
 LEASEHOLDS: 
 
 are not within the Statute of Uses, 230. 
 
 investment in leasehold securities improper without a special authority, 378. 
 settled in trust for life. Duty of trustees to 'convert. [See Conversion.! 
 386,437. ■■ 
 
 trustees of, how far liable for rents and covenants, 432. 
 duty of trustees to renew, where there is no express trust to do so, ib. 
 where they have a discretionary power to renew, 433. 
 where there is an express trust to renew, ib. 
 trust to renew may be implied, ib. 
 
 liability of trustees to remaindermen for neglecting to renew, 434. 
 their right to recover over from the tenant for life, ib. 
 not liable to repay fine paid by remainderman if unreasonable or 
 exorbitant, ib. 
 where the renewal becomes impossible, ib. 435. 
 renewal fines how to be raised, ib. 
 
 whether a trust to raise out of rents and profits will authorize a sale 
 
 or mortgage. Quare? ib. 436. 
 by insuring lives of cestui que vie, 436. 
 relative liabilities of cestui que trusts, for life and in remainder to con- 
 tribute to expenses of renewal, 437. 
 trustee effecting renewal in his own name, holds on the old trusts, 438. 
 terms on which the trust will be enforced, ib. 439. 
 
 LEGACIES: 
 
 a trust to pay, gives the trustees the legal estate, 231. 
 
 secus, if the charge is contingent, or there is no express trust to pay, ib. 
 a general trust to pay debts and legacies, creates a charge on the real estate. 
 
 When? 359. 
 may be charged on land by unattested codicil. When? 361. 
 personal estate primarily liable to payment of, 362. 
 purchaser from trustee bound to see to the payment of. When ? 363. 
 must all be paid proportionably, if no preference expressly given, ib. 364. 
 assets marshalled in favor of legatees, who have no charge on the land, 
 364. 
 except in case of legacies to charity, ib. 
 interest on, when given, and at what rate, ib. 
 to trustees, how far legatee must accept the trust in order to claim, 554. 
 
 LEGAL ESTATE: 
 
 vested in trustees by construction, as requisite for performance of the trusts, 
 231. 
 where the trust is to sell or mortgage, ib. 
 or to pay debts or legacies, ib. 
 
 secus, if the charge of debts or legacies be contingent, 231. 
 or there is no express direction for the trustees to pay them, ib. 
 where there is a trust to lease, 232. 
 
 but not where there is a mere power of leasing, ib. 
 or a trust to convey, ib. 
 
 or to pay the rents, or an annuity out of the rents, ib. 
 effect of a trust to permit and suffer cestui que trust to receive rents, 233. 
 
 construction, where both expressions are used, ib. 
 intention of devisor will determine the question as to the vesting of, 234. 
 rule of construction, where there are a series of trusts, some of which 
 require the legal estate to be vested in the trustees, 235. 
 executed by the Statute of Uses in the beneficial owner, where the property 
 
 is given " in trust " for him or " for his benefit," ib. 
 indiscriminate use of the words "use" and "trust" immaterial, ib. 
 
INDEX. 877 
 
 LEGAL ESTATE.— Continued. 
 
 an express limitation to the " use " of the trustees gives them the legal 
 estate, 253. 
 
 a mere power to sell, &c., does not give the trustees the legal estate, ib. 
 
 presumption of reconveyance or surrender of, by the trustees. [See Re- 
 conveyance.] 253. 
 
 LIEN: 
 
 of trustees for their costs and expenses, 567, 571. 
 
 not extended to solicitors and agents employed by them, 567. 
 
 LIFE: [See Lease — Tenant for Life.] 
 
 LIMITATION, STATUTES OF : [See Delay— Trnfe.] 
 
 their application as between trustees and cestui que trusts, 263. 
 do not run against an express trust, 264. 
 
 effect of 25th section of 3 & 4 Will. IV. c. 27 ; ib. 
 possession of one of several co-trustees will prevent their running, ib. 
 their application to constructive trusts, 265. 
 
 cestui que tiiist in remainder or under disability not prejudiced by, 266. 
 nor creditors, societies, or charities, 170, 266,468. 
 in cases of fraud the statute runs only from its discovery, 266. 
 length of possession of cestui que trusts will not cause them to run against 
 the estate of trustees, 266. 
 unless cestui que trust has acquired an adverse possession, ib. 
 run against a trust in favor of strangers, ib. 503. 
 
 how far infancy of cestui que trust will prevent, from running in favor of 
 
 a stranger, 269, 504. 
 will not run in favor of strangers, where trustee is under disability. 
 
 Semble, 269, Z19,50i. 
 trust in a deed or will for payment of debts prevents, from running, 
 how fart 341, 356. 
 
 LIS-PENDENS : 
 
 effect of appointment of new trustees during, 185, 549. 
 
 effect of, upon powers of trustees generally, 548. 
 
 effect of, as notice of a trust to a purchaser from trustees, 51 1. 
 
 LUNATIC : 
 
 may create a trustee, how far, 46. 
 may be a trustee, 48. 
 
 transactions with, will create a constructive trust. [See Fraud.] 154. 
 appointment of new trustee in place of. [See New Trustees, Appointment 
 OF.] 190, 197. 
 entitled to his costs of an application for that purpose, 209. 
 conveyance by a trustee under 1 Will. IV. c. 60 ; 288. 
 act applies to lunatic not found so by inquisition, 289. 
 
 but not to persons merely of weak intellect, ib. 
 Lord Chancellor only has jurisdiction to entertain applications for, ib. 
 act does not apply, if lunacy be contested, ib. 
 light of nomination to livings, where cestui que trust of advowson is a lunatic, 
 443. 
 
 M. 
 
 MAINTENANCE: [See Advancement — Infant.] 
 
 whether allowed out of the capital of infant's fortune, 398, 399. 
 power of trustees to apply income of infant's trust fund for, 400. 
 
 where infant's interest is contingent, or there is a limitation over, ib. 
 where the infant has two different funds, 401. 
 where the father of the infant is alive, ib. 
 
 whether the same rule applies to the infant's mother, Qucere, 402. 
 payments by a trustee for, of infant without an express power when 
 allowed, ib. 
 
8T8 INDEX. 
 
 MAINTENANCE.— Coniin«e(f. 
 
 trustees cannot increase the allowance for, where fixed by the trust, 402. 
 
 403. 
 power to allow, not determined by the marriage of infant daughter, 
 ib. 
 confined to the infancy of the object. When? ib. 
 order for, obtained on petition, 401. 
 reference to the Master to ascertain the propriety of allowing, 402. 
 
 MAJORITY: [See Co-Trhstees.] 
 of trustees, 
 
 decision of, how far binding on the whole number, 307. 
 is binding in case of charitable or public trusts, 308. 
 
 or where the power is conferred on the majority by the trust 
 deed, ib. 
 in choice of a clergyman for a benefice, 444. 
 
 MANAGEMENT: [See Possession.] 
 
 trustees entitled to the possession and, of trust estate. When? 273, 384, 
 
 428. 
 general power of, conferred on trustees authorizes what acts ? 429. 
 
 MANOR: [See Copyhold.] 
 
 trustee of, how far entitled to appoint the steward, 274. 
 
 MARRIAGE: 
 
 of a trustee will not operate as a merger of the legal estate in equity, 232, 
 
 327. 
 proof of, unnecessary in a suit by ^ feme to obtain a conveyance from the 
 
 trustee of her separate estate, 424. 
 conditions, requiring consent of trustees to, how far enforced, 496. 
 power for trustees to give their consent to, how to be exercised, 498. 
 what a sufiicient consent, ib. 
 implied consent, ib. 
 written consent, when necessary, ib. 
 
 no distinction between "consent" and "approbation," 499. 
 consent must be given before the marriage, ib. 
 absolute consent once given cannot be withdrawn, 500. 
 conditional consent, how far good, ib. 
 all the trustees must give their consent, ib. 
 not those who refuse to act, ib. 
 or those who have died, 501. 
 
 court controls trustees in exercise of a power to consent to marriage, ib. 
 502. 
 the power exercised by the court. When ? ib. 
 
 MARRIED WOMEN: [See Husband.] 
 
 may create a trustee, by what assurances, 45. 
 
 may be a trustee, 48. 
 
 not allowed to propose herself as a new trustee before the Master, 210. 
 
 whether she may disclaim a trust estate by deed. Qu^j-e? 223. 
 
 conveyance by a trustee, how to be executed, 287, 296. 
 
 her trust estate vests in the husband, to what extent, 304. 
 
 cannot act in the trust without husband's concurrence, ib. 
 
 powers and duties of trustees for, 406. 
 
 she has no equity for a settlement out of her equitable real estate, 406. 
 
 except in case of husband's bankruptcy, ib. 
 
 and as to her chattels real, 407, 410. 
 bound by a fine of her equitable real estate, 405. 
 
 construction in favor of vesting the legal estate in trustees for, 233, 406. 
 power of trustees to make over her equitable personal estate to husband 
 
 before suit, 408. 
 her equity for a settlement out of her equitable personal property, ib. 
 exceptions to her equity for a settlement, ib. 
 
 where husband is the purchaser of her fortune, ib. 
 
INDEX. 879 
 
 MARRIED WOMEN.— Continued. 
 
 where property under value of 200/., or 10/. per annum, 209. 
 her equity for a settlement attaches on her life interests. When'? 410. 
 it may be waived by her, 411. 
 or forfeited by her misconduct, ib. 
 the whole fund will not in general be settled on her, ib. 
 
 exception.s to that rule, 412. 
 equitable right of, to a settlement not applied to foreigners, ib. 
 husband entitled to her income, though he refu-ses to make a Bettlement, ib. 
 
 unless he deserts or refuses to maintain her, 413. 
 trustees must not pay income of, to her husband after bill filed, ib. 
 her equitable fund transferred absolutely to the husband upon her consent, ib. 
 her consent, how to be given, ib. 
 
 the amount of the fund must be ascertained, 414. 
 not bound by consent to such a transfer, if improperly given, ib. 
 ward of court, who has married clandestinely, not allowed to consent, ib. 
 Cannot consent to the transfer of her reversionary interests, ib. 
 nor while she is under age, ib. 
 
 her title to take the whole by survivorship on death of husband, 415. 
 what a sufficient reduction into possession by husband to defeat that title, ib. 
 her equity for a settlement may remain, though her title by survivorship is 
 
 lost, 417. 
 not bound by any assignment of equitable interests executed during cover- 
 ture, ib. 
 effect of a decree for a settlement upon her title to take by survivorship, 
 
 418. 
 nature and' effect of a trust for her separate use, 419. 
 
 such a trust valid, though she is unmarried at the time, ib. 
 
 interposition of trustees unnecessary, 420. 
 
 created by what expressions, ib. 
 
 the trust must be for her benefit only, 421. 
 
 her power of disposition over her separate estate, ib. 
 
 any particular mode of disposition directed by the trust must be fol- 
 lowed, ib. 
 restriction against alienation by her during coverture, how far valid, 422. 
 what sufficient to create such a restriction against alienation, ib. 
 if not restrained from alienation, she may charge or encumber her 
 
 estate, 424. 
 she is entitled to require a conveyance from the trustee, ib. 
 trustees need not join in a disposition by her, separate estate, 425. 
 disposition by her in favor of her husband, good, ib. 
 payment by trustees of her separate income to her husband, how far 
 ^ood, ib. 
 accumulations from such income received by husband belong to 
 him, ib. 
 trust deeds for separation, how far valid. [See Separation.] 426. 
 duty of trustees to protect her from her husband, 427. 
 effect of adultery on her right to receive the income of her property, 428. 
 
 MEDICAL ATTENDANT: 
 
 gifts to, from his patient, raise a constructive trust. When? [See Fjiaud.] 
 162. 
 
 MERGER: 
 
 of estate of trustees, 252. 
 
 requisites for, ib. 
 take place at law. When ? ib. 
 relieved against in equity, ib. 
 of term vested in a trustee, will not take place on marriage of trustee with the 
 owner of the inheritance, 327. 
 
 MISREPRESENTATION: 
 
 effect of, in converting a person taking under an instrument into a construc- 
 tive trustee. [See Fraud.] 146. 
 
880 
 
 INDEX. 
 
 MISTAKE: 
 
 instruments executed through, relieved against. When? 148. 
 
 where of law and not of fact. Qucere? [See Deeds — Fkaud — Igno- 
 rance.] 149. 
 parol evidence admitted to prove, 150, 167. 
 
 secus, if denied by the defendant's answer, 167. 
 
 MORTGAGE: 
 
 a trust to, gives the trustees the legal estate, 231. 
 
 a mere dry trustee has not sufRcient interest to redeem, 277. 
 
 trust to invest in, how to be executed, 368. 
 
 whether investment in, is proper without a special authority. ■ Quare? 377. 
 
 when it is the duty of trustees to call in such investments, 383. 
 
 when authorized by a power of sale, 475. 
 
 MORTGAGEE : 
 
 heir of, in fee a constructive trustee for his personal representative, 173. 
 
 who is paid off, a constructive trustee for the mortgagor, ib. 
 
 infant heir of, a trustee within 1 Will. IV. c. 60 ; 290. 
 
 eighth section of 1 Will. IV. c. 60, applies to heir of. When ? 291. 
 
 trustee for, may sell without concurrence of mortgagor. When ? 476, 
 
 MORTMAIN: 
 
 statutes of, apply to equitable estates, 52. 
 what trusts are within the statutes of, 455. 
 exceptions from that act, 457. 
 
 N. 
 
 NEW TRUSTEES: 
 
 appointment of, under a power, 190. 
 
 this power not usually given to trustees appointed by the court, 176,212. 
 
 except in cases of charity, ib. ib. 
 inserted in a settlement under articles as a reasonable and proper power, 
 
 176. 
 objects to be regarded in framing it,ib. 
 proper form of such a power, 177. 
 
 with consent of surviving trustee, authorizes an appointment after the 
 death of both trustees, ib. 
 or after the death of one and the incapacity of the othertrustee, 178. 
 does not apply to trustees dying in testator's lifetime, ib. 
 effect of a power to be exercised by the survivor of two or more trustees, 
 
 179. 
 bankruptcy of trustee renders him unfit within the meaning of the 
 
 power, ib. 
 mode of appointment, where the only surviving trustee is desirous of 
 
 retiring, ib. ^ 
 whether a smaller number of trustees may be appointed in the place of 
 
 a larger number. Quare? 180. 
 a larger number may be appointed in place of a smaller number. 
 
 When? ib. 
 by whom the power is to be exercised, 183. 
 by cestui que trusts, ib. 
 
 whether by the retiring or continuing trustee, ib. 
 only by the persons designated by the power, ib. 
 when by the survivor of several donees, ib. 
 when by the heir or executor of the donee, 184. 
 by a married woman, ib. 
 not by an infant, ib. 
 effect of a direction to appoint, when trustees are reduced to a certain 
 
 number, ib. 
 discretion of trustees not controlled in the exercise of, ib. 
 effect of appointment pending a suit, 185, 448. 
 manner in which the power must be exercised, 185. 
 
INDEX. 881 
 
 NEW TRUSTEES.— ConimMBd. 
 
 required formalities must be observed, 185. 
 
 consent, if requisite, must be obtained, ib. 
 appointment must be completed by conveyance of the legal estate, 186. 
 mode of effecting the conveyance to old and new trustees jointly, ib. 
 
 where the trustees' estate is to preserve contingent remainders, ib. 
 
 where it consists of terms of years, ib. 
 
 or of stock or money, ib. 
 
 where there is only a single trustee, 187. 
 exercise of the power not generally imperative, ib. 
 survivor may continue to act, ib. 
 the power may be made imperative, ib. 
 
 court will appoint, on the neglect of the donee of the power, 188. 
 new trustee has the same power as the old ones, ib. 
 foreigners ought not to be appointed new trustees, ib. 
 nor one of the cestui que trusts, ib. 
 costs of the new appointment, 189- 
 
 invalid appointment will vitiate subsequent appointments. When? ib. 
 Court of Chancery will appoint, notwithstanding the existence of a 
 power, 190, 205. 
 appointment of, by the court, ib. 
 
 in what cases the court appoints new trustees, 190, 524. 
 
 the court acts, though trust instrument contains a power to appoint new 
 
 trustees, 190, 205. 
 special statutory jurisdiction for the appointment of trustees, 192. 
 
 on bankruptcy of existing trustee, ib. 
 
 now exercised by the Court of Review, ib. 
 
 on the disability, &c., of the existing trustee, ib. 
 22d section of 1 Will. IV. o. 60, 193. 
 
 in cases of charities, 193. 
 how the court acts in appointing new trustees, 194. 
 
 in general a bill must be filed, ib. 
 
 bill may be filed, though a petition would also be proper, ib. 
 
 mode of proceeding by suit for the appointment of new trustees, 
 ib. 196. 
 
 costs of such a suit borne by whom, 196. 
 in what cases the court will appoint new trustees on petition, 197. 
 
 1. In trusts for charity under Sir Samuel Romilly's Act, 198. 
 
 extent and application of that act, and mode of proceeding 
 under it, ib. 
 
 2. On the death of all the trustees of a charity under 1 Will. IV. c. 
 
 60,s.23; 199. 
 
 3. On bankruptcy of existing trustee, ib. 
 
 though he has obtained his certificate, 200. 
 
 4. In cases within 22d section of 1 Will. IV. c. 60 (Sir E. Sugden's 
 
 Act), ib. 
 
 I. On lunacy of existing trustee, ib. 
 
 extent and application of the act, and the mode of pro- 
 ceeding in that case, ib. 
 
 II. On infancy of e.xisting trustee, 201. 
 
 extent and application of the act, and the mode of pro- 
 ceeding in that case, ib. 
 
 III. In cases within the 8th section of the act, 202. 
 
 trustee being out of the jurisdiction, ib. ^ 
 
 who considered out of the jurisdiction, ib. 203. 
 place of residence should be slated in the affidavit, ib. 
 uncertainty who is the existing trustee^ 203. 
 trustee's refusal to convey, ib. 
 death of trustee without heir, 204. 
 
 extent and application of the act, and the mode of pro- 
 ceeding by petition under it in these cases. [See Pe- 
 tition.] ib. 
 
 56 
 
882 
 
 INDEX. 
 
 NEW TRUSTEES.— Corfwuet;. 
 
 costs of petition borne by whom, 209. 
 whom the court will appoint to be a new trustee, 210. 
 
 leave given to persons to propose themselves before the 
 
 Master, ib. 
 whether two or more trustees may be appointed instead of 
 one. Qiimre? 211. 
 effect of appointment of new trustee by the court, ib. 
 
 he takes all the powers of the original trustee, 211. 
 except powers Implying personal confidence, ib. 
 or a power of appointing other trustees, ib. 
 receiver appointed. When ? [See Receiver.] ib., 534. 
 appointment of new trustee in place of one becoming insolvent, 534. 
 
 NEXT OF KIN : 
 
 no conversion as between, and heir-at-law claiming by resulting trust. [See 
 Conversion — Heir — Resulting Trust.] 127, 142. 
 
 NOTICE: [See Purchaser.] 
 
 purchaser from a trustee with notice bound by the trust, 164, 509. 
 
 secus, a purchaser with notice from one, who bought without notice, 165. 
 notice when received, 165. 
 may be either to the purchaser, or his agent, ib. 
 purchase from executor, with notice of its being a devastavit, ib. 
 may be actual or constructive, ib. 
 a disseisor not affected by notice of the trust, 172. 
 conveyance by trustee to a purchaser whhout notice, good, 282, 509. 
 trustee cannot convey or assign after notice of incumbrance by cestui que 
 
 trust, 281, 319. 
 to one of several co-trustees, how far good, 296. 
 
 trustee of chose in action should give notice of the settlement to the party 
 legally liable to the payment, 456. 
 
 what sufficient or proper notice for that purpose, ib. 
 What amounts to, of a trust to a purchaser from a trustee, 510. 
 
 to whom such notice may be given, 513. 
 
 how to be pleaded, 514. 
 
 how proved, 515. 
 
 notice of voluntary settlement, how far material, 516. 
 
 second purchaser, how far affected by notice, ib 
 
 0. 
 
 OLD AGE: 
 
 of grantor not sufficient of itself to create a constructive trust. [See Fraud.] 
 155. 
 
 OUTLAW: 
 
 may create a trustee. How far? 47. 
 
 P. 
 
 PATENT: 
 
 purchase by, in name of a child on advancement. When? [See Advance- 
 ment — Resulting Trust.] 97. 
 
 gifts fo, or purchase by, from a child will raise a constructive trust. When? 
 [See Fraud.] 157. 
 
 PARISHIONERS : 
 
 effect of a trust of an advowson for parishioners generally, 441. 
 who will have the right of voting at election of minister, ib. 
 election must not be by ballot, ib. 
 
 such a trust not a subject for an information by Attorney-General. [See 
 Advowson.] 442. 
 
INDEX, 
 
 PARLIAMENT, ACT OF: 
 
 jurisdiction of Court of Chancery over trustees created by, 61. 
 trustees created by, removed by the court, and others appointed, 192. 
 powers conferred by, for trustees to convey, 282. 
 
 PARLIAMENT, MEMBER OF: 
 
 right of trustees to vote in election of, at common law, 275. 
 how far excluded by statute, ib. 
 
 when trustee has a beneficial interest, 276. 
 trustees not qualified by trust estate to sit as a, ib. 
 
 PAROL EVIDENCE: 
 
 admissible to prove a parol trust. When ? [See Parol Trust.] 60. 
 in cases of a purchase by one person in the name of another, 
 
 whether admissible to establish a resulting trust in contradiction to the 
 
 answer of the nominal purchaser, 94. 
 or to prove payment of the purchase-money in contradiction to the 
 
 purchase-deed, ib. 
 admissible to rebut a resulting trust, on such a purchase, ib. 
 ■whether admissible to rebut the presumption of an advancement on 
 
 such purchases. Quare? 68, 103. 
 admissible to support the advancement, ib. 
 in cases of a voluntary conveyance without any declaration of trust, 
 
 not admissible to establish a resulting trust on such a conveyance, 106. 
 except in cases of fraud, 107. 
 
 or where such evidence has been used on the other side, 108. 
 admis.sible in favor of the grantee to rebut the trust, U.S. 
 in cases of gifts upon trusts, which are ineffectually declared, 
 
 admissible to support the beneficial claim of the trustee in opposition 
 to a resulting trust. When? 118. 
 in cases of gifts upon trusts, which do not exhaust the whole interest, 
 
 when admissible to raise a. resulting trust of the surplus against the 
 
 trustee, 124. 
 admissible in favor of the trustee to rebut a presumed resuhing trust, ib. 
 contemporaheous evidence the best, 126. 
 
 inadmissible in support of the trustee's claim, if the trust appear on the 
 face of the instrument, ib. 
 in cases of fraud raising a constructive trust, 
 admissible to prove the fraud, 166.- 
 though denied by defendant's answer, 164, 167. 
 but not regarded with favor, 167. 
 declarations subsequent to the transaction not admitted to prove the 
 
 fraud, ib. 
 admitted in all cases to prove fraud as a defence against a claim, ib. 
 admitted to prove mistake or surprise in executing a deed, ib. 
 
 secus if denied by defendant's answer, ib. n. 
 admitted to prove an acceptance of a trust by a trustee, 219. 
 or to prove that a purchase was made with trust money, 522. 
 
 PAROL TRUST: 
 
 creation of trustees by, 55. 
 
 what may be the subject of a parol trust, ib. 
 before the Statute of Frauds, ib. 
 since that statute, 56. 
 
 parol trusts of land valid, notwithstanding the statute, ib. 
 
 must be proved by a written declaration, ib. 
 
 the declaration relates back to the creation of the trust, ib. 
 
 parol trusts of personal estate good, 57. 
 
 parol trusts of copyholds, of leaseholds, 58. 
 
 of lands in colonies or foreign countries, ib. 
 for charities, 59. 
 in cases of fraud, ib. 
 resulting or implied trusts created by, ib. 
 expressions requisite for raising a trust by, ib. 
 must be contemporaneous with the gift, 60. 
 
884 INDEX. 
 
 PAROL 1B.VST.— Continued. 
 
 trust by, once created irrevocable, 60. 
 
 effect of voluntary trust created by. [See Voluntary Trust.] ib. 
 
 trust by, how proved, ib. 
 
 not by evidence contradicting a written instrument, ib. 
 except in cases of fraud, ib. 61. 
 
 what sufRcient proof to satisfy the Statute of Frauds. [See Frauds, 
 Statute of.] ib. 
 parol evidence received to prove, where a doubt is raised by 
 written documents, 62. 
 
 PARTIES: [See Suits.] 
 
 PARTITION : 
 
 when authorized by a power of sale, 475. ^ 
 
 PARTNER IN TRADE: 
 
 of testator being appointed trustee, not entitled to au allowance for carrying 
 
 on the business, 574. 
 must not continue to employ the trust assets in the business without a 
 special authority, .379. 
 
 PAYMENT INTO COURT: 
 
 of trust funds, ordered upon what admissions of the trustee. 549. 
 
 what time fixed for the payment, 550. 
 trustee may obtain an order for, for his own security, 551. 
 
 PERISHABLE PROPERTY: 
 
 settled in trust for life, duty of trustees to convert. [See Annuity — Con- 
 version — Leasehold — Tenant for Life.] 386. 
 
 PERSONAL SECURITY: 
 
 power to invest in, construed strictly, 369. 
 
 how to be exercised, ib. 
 investment in, improper without a special authority, 378. 
 duty of trustees to call in trust-money invested on, 380. 
 
 PETITION: 
 
 for appointment of new trustees, when proper, and mode of proceeding by. 
 
 [See New Trustees, Appointment of.] 194 to 202. 
 for conveyance of estate vested in trustees, under 1 Will. IV. c. 60, when 
 proper, and mode of proceeding by. [See Conveyance — Estate of 
 Trustees— Disability.] 289 to 302. 
 not proper after institution of a suit, 292. 
 or in doubtful cases, 297. 
 or where adverse claims, ib. 
 in cases of constructive trust. When? 298. 
 how to be entitled, 294. 
 who may present, ib. 
 must be verified by affidavit, 295. 
 order on, ib. 
 Master's report on, ib. 
 costs of, 300. 
 
 POLICY OF INSURANCE: [See Chose in Action— Insurance.] 
 
 POOR: 
 
 trust for, a good charitable trust, 452. 
 
 to be executed only in favor of those not receiving parochial relief, 467. 
 
 PORTIONS: 
 
 duties and powers of trustees for raising, 365. 
 
 to be raised out of a reversionary term. When ? ib. 
 
 of child dying before time of payment, to be raised. When? ib. 
 
 how to be raised, 366. 
 trustees confined to the annual rents and profits. When ? ib. 
 
INDEX. 885 
 
 PORTIONS.— Cojitottcd. 
 
 the whole sum to be raised at once. When'? 367. 
 interest on, ib. 
 
 trust for raising, not within Thellusson Act, 368. 
 expense of raising. How defrayed, ib. 
 
 POSSESSIONS: 
 
 trustees entitled to the, and management of trust estate. When t 272, 384, 428. 
 when it is their duty to take possession of trust estate, ib. 
 
 POWER: [See Discretionary Power.] 
 distinction between, and a trust, 67. 
 power in the nature of a trust, ib. 
 
 whether enforced as a trust in favor of strangers in blood. Qutere? ib. 
 
 distinction, where the donee of the power takes an absolute estate, and 
 where only a partial ftenefioial interest, or no interest, ib. 
 instances of, not being a trust, 68. 
 
 gift by implication to objects of, in default of its exercise, ib. 491. 
 no such gift by implication, where there is an express gift over, 70. 
 u mere power not imperative, 71. 
 of sale, does not give the donee the legal estate. [See Legal Estate — 
 
 Sale.] 235. 
 so a mere power to lease. [See Lease — Legal Estate.] 232. 
 effect of a direction to insert " all usual and proper powers," 472. 
 may be exercised by surviving or continuing trustees. When? 472, 489. 
 or by devisees of original trustees, 287, 473, 489. 
 
 PRECATORY WORDS: 
 
 where they will create a trust, 72. 
 three requisites for raising a trust on such words, 
 1st, the words must be imperative, ib. 
 2d, the subject must be certain, 73. 
 3d, the object of the trust must be certain, 75. 
 
 trust for several objects, or alternatively, or for one or another, is 
 
 good, ib. 
 charity or charitable purposes a sufficiently certain object, 79. 
 notenforcedasa trust, if the interest given to the objects be uncertain, 81. 
 not where the trust is executory, ib. 
 
 PRESENTATION: [See Advowson.] 
 
 trustees of advowson, have the right to make, 274, 442. 
 
 how that right is to be exercised. [See Advowson.] 442, et seq. 
 
 PRESUMPTION : 
 
 of a reconveyance or surrender by a trustee, when made. [See Reconvey- 
 ance.] 253. 
 that a particular trust has been satisfied, when made, 255. 
 
 PURCHASE : 
 
 by one person in the name of another raises a resulting trust. When 1 [See 
 Resulting Trust.] 91. 
 an advancement. When? [See Advancement.] 98. 
 from a trustee with notice, effect of. [See Notice.] 164. 
 from a trustee without notice, gives a good title. [See Notice.] 282, 509. 
 by a trustee for investment. Held to have been made in execution of the 
 
 trust. When? 383, 522. 
 incapacity of trustees to purchase the trust estate, 158, 535. 
 
 1st, where the purchase is made directly from themselves, 158, 535. 
 
 how and when such a purchase will be supported, 536. 
 2d, where the purchase is made by contract with cestui que trust, 537. 
 relief against purchases by trustees barred by confirmation or acquies- 
 cence, ib. 539. 
 terms on which the purchase will be set aside, 538, 539. 
 
 allowance to the trustees for repairs and improvements, ib. 
 
INDEX. 
 
 PURCHASER : 
 
 from a trustee, liability of, to see to the application of the money, 342, 363. 
 
 effect of 7 & 8 Vict. c. 76, s. 10 ; 337, n., 504. 
 power of trustees to discharge, by their receipts, 503. 
 
 his liability in case of collusion with trustee, or notice of a breach of trust, 506. 
 how far delay in making the sale is notice, that all debts have been paid, 507. 
 with notice of a trust, liabilities of. [See Notice.] 164,507. 
 Statutes of Limitation run in favor of a, from a trustee. When ? 509. 
 rights of a bona fide, without notice of the trust, ib. 
 what a sufRcient notice of a trust to. [See Notice.] 510. 
 second purchaser how far bound by notice of a trust, 516. 
 plea of purchase without notice, no defence, unless purchaser has obtained 
 
 the legal estate, 517. 
 not compelled to discover his title, ib. 
 if he answer he must answer fully, ib. • 
 who considered a purchaser for the purpose of such a defence, ib. 
 
 Q. 
 
 QUALIFICATION: 
 
 a trustee's estate does not amount to a, for a seat in parliament, or as a jus- 
 tice of the peace, or to shoot game, &o., 276. 
 
 R. 
 
 RAILWAY: 
 
 investment in shares of, or canals, improper without special authority, 378. 
 liability of trustees of shares in, to pay calls, &c., 446. , 
 
 RATES: 
 
 and taxes to be paid by cestui que trust for life, 395. 
 
 REBUILDING: 
 
 trustees mus-t not pull down and rebuild a house without a special authority, 
 571. 
 
 RECEIPTS: 
 
 power for trustees to give, for purchase-money. [See Purchaser.] 342, 
 
 363, 504. 
 trustees for investment have power to give, 508. 
 on trustees, who have power to change securities, 483. 
 effect of co-trustees joining in, for sake of conformity, 312. 
 necessity of the concurrence of all the trustees in, 307. 
 
 RECEIVER : 
 
 appointed by the court until the appointment of a new trustee. When? 212. 
 not against the consent of the other trustees, if any, ib. 
 what a sufficient reason for appointing, ib. 525. 
 discharged on the appointment of the new trustee, 213. 
 trustee in general cannot be appointed, 277, 539. 
 when trustees will be so appointed, 540. 
 
 RECONVEYANCE: [See Surrender.] 
 
 by a trustee, presumption of, when made, 253. 
 
 three requisites for making presumption of, ib. 
 
 1st, must be the duty of the trustee to reconvey, ib. 
 
 when it will be his duty 'to convey, ib. 
 
 satisfaction of the particular trust presumed. When ? 254. 
 
 no reconveyance presumed where an express trust still unsatisfied, 255. 
 2d, a sufficient reason for presuming the reconveyance, 256. 
 
 lapse of time not a sufRcient reason itself, ib. 
 
 secus, when joined with other circumstances, 257. 
 
 what other circumstances sufficient for that purpose, ib. 258. 
 
 reconveyance of ihefee, more readily presumed than of a term, 259. 
 secus, where the fee is conveyed to a mere dry trustee, 260. 
 
 what length, of time sufficient to support the presumption of, 261. 
 
INDEX. 88T 
 
 RECONVEYANCE.— Conimuerf. 
 
 whether omission to notice a term is a sufficient reason for presuming 
 its surrender. Quare? [See Surrender.] 261. 
 3d, it must be in favor of a just title, 262. 
 
 in vphose favor a reconveyance will be presumed, ib. 
 in favor of the beneficial owner, ib. 
 but he must show a proper title, ib. 
 in favor of a vendor, who seeks a specific performance, 263. 
 
 REDUCTION INTO POSSESSION: [See Husband— Married Women.] 415. 
 
 RELATIONS: 
 
 who entitled under a trust for, 79. 
 
 RELEASE : 
 
 to a trustee from cestui quetntst, requisites for validity of, 525, 581. 
 
 from past liabilities, cannot be insisted upon by a trustee as a condition for 
 
 the conveyance of the trust estate, 580. 
 on a conveyance by trustees to the trustees of a new settlement, 581. 
 the parties to a release must be sui juris, ib. 
 
 and have full information, and a separate legal adviser, 582. 
 the release should state all the facts, ib. 
 deliberately executed, not hastily set aside, ib. 
 persons who impeach the validity of, must prove their facts, ib. 
 to one trustee, is a release to all, ib. 
 by delay and acquiescence of cestui que trusts. [See Acquiescence — Delay 
 
 —Time.] 583. 
 by the decree of a court of equity. [See Decree.] ib. 
 
 REMAINDER: 
 
 trusts limited in, not accelerated by failure of preceding trusts, 135. 
 persons entitled in, how far liable to contribute to expenses of admissions to 
 copyholds and renewal of leaseholds, 436. 
 not prejudiced by acquiescence in a breach of trust, 266. 
 
 REMOVAL: 
 of trustees, 
 
 decreed on what ground, 191. 
 
 what will not be a sufficient reason, ib. 192. 
 
 RENEWAL: [See Leasehold.] 
 
 of leaseholds, duty of trustees to make, 432. 
 expenses of, how to be raised, 435. 
 
 contribution for, between tenants for life and in remainder, 437. 
 will be held on the old trusts, 438. 
 trustees' lien for fines, &c., when paid by them, 572. 
 
 RENTS: 
 
 trust to raise gross sums out of, and profits, authorizes a sale. When ? 355, 
 
 367. 
 apportionment of, on death of tenant for life under 4 & 5 Will. IV. o. 22 ; 394. 
 trustees should require tenants to pay, to them. When? 429. 
 liability of trustees for suffering, to fall in arrear, ib. 
 power of trustees to release arrears of, ib. 
 
 REPAIRS: 
 
 costs of substantial repairs borne by cestui que trust for life, 394, 571. 
 trustees when authorized to lay out money in, 429, 571. 
 trust to repair a chapel, how far authorizes trustees to rebuild, 468. 
 allowance for, to trustees on setting aside a purchase by them, 539. 
 
 RESIDUARY GIFT: 
 
 prevents any resulting trust of personal estate, 135. 
 
 or of real estate since 1 Vict. c. 26, 136. 
 unless residuary gift itself fails, ib. 
 
888 
 
 INDEX, 
 
 RESIGNATION OF THE TRUST: 
 
 not permitted in general without sufficient reason, 554. 
 Quare? where there is a power to appoint new trustees, ib. 
 
 RESULTING TRUST: 
 
 creation of trustees by, 91. 
 
 I. Where a purchase is made by one person in the name of another, ib. 
 
 where the property is copyhold, 92. 
 does not arise on joint purchases, 93. 
 
 unless the proportions of the purchase-money are unequal, ib. 
 arises on mortgages, ib. 
 
 or on joint purchase.^ by partners, ib. 
 exception, in case of the Ship Registry Acts, ib. 
 proof of the payment of the consideration-money must be clear, 94. 
 what will amount to such proof, ib. 
 
 parol evidence when admissible, 95. 
 does not arise on a purchase made by an agent in his own name, 96. 
 nor upon a conveyance for a. valuable consideration, which is not 
 
 paid, ib. 
 the trust may be rebutted, ib. 
 
 as to the whole, or part, of the estate, ib. 
 
 parol evidence admissible to rebut it, ib. 
 
 burden of proof rests on the volunteer to rebut the trust, ib. 
 cannot arise from matter ex post facto, 97. 
 
 will not arise where the purchaser is bound to provide for the nomi- 
 nee, ib. 
 where the purchase will be an advancement, and not a trust for the pur- 
 chaser. [See Advancement.] ib. 
 
 II. Where there is a voluntary conveyance without any trusts declared. [See 
 
 VOLUHTAKY CONVEYANCE.] 106. 
 
 III. Where there is a disposition of property upon trusts, which are not de- 
 clared, or are only partially declared, or fail, 113. 
 
 1. Where the trusts are not declared, 114. 
 
 or are referred to, as thereafter declared, and no declaration is 
 made, ib. 
 
 2. Where the trusts are inetfectually declared, 116. 
 
 intention, that donees should take only as trustees, must be clear, 
 
 117. 
 parol evidence to support donee's claim against the resulting trust, 
 
 118. 
 
 3. Where the trusts declared do not exhaust the whole interest, ib. 
 
 trust of the surplus will result. When? 119. 
 when there will be no resulting trust, 120. 
 
 expressions of an intention to benefit the donee will prevent 
 
 the trust, 121. 
 or expressions of affection or relationship, ib. 
 or the circumstances of the donee, ib. 
 
 where the donee is an infant or a, feme coverte, 122. 
 or a child of the donor, ib. 
 the trust may result as to part and not as to the residue of the 
 
 estate, ib. 
 if one of several donees is a trustee, all are so, 123. 
 effect of a legacy to executor, in raising a resulting trust of the re- 
 sidue undisposed of, ib. 
 legacy to devisee of real estate raises no resulting trust against him, 
 
 124. 
 legacy to heir or next of kin will not exclude their claim by a re- 
 sulting trust, ib. 
 admissibility of parol evidence to support or rebut the resulting 
 
 trust. [See Parol Evidence.] ib. 
 no conversion as between the heir and next of kin claiming the 
 
 surplus by resuhing trust. [See Conversion.] 127. 
 exception to general doctrine of resulting trusts in cases of charily. 
 [See Charity.] 128. 
 
INDEX. 8*89 
 
 UESULTING TRUST.— Continued. 
 
 4. Where the trusts declared are void or lapse, 134. 
 
 trusts in remainder not accelerated by failure of preceding on e?, 
 
 accumulations void by the Thellusson Act result for heir or next 
 of kin, ib. 
 
 no resulting trust of personal estate, if there be a residuary be- 
 quest, ih. 
 unless the residuary gift itself fail, ib. 
 
 secus as to real estate before 1 Vict. c. 26, 136. 
 
 distinction between residuary gifts of real and personal estate abo- 
 lished by that act, ib. 
 
 resuhing trust excluded by a substitutionary gift, ib. 
 
 whether a charge that fails will result, or sink for the benefit of the 
 donee, ib. 
 
 cases where heir has taken such charges by resulting trust, 139. 
 
 cases where devisee has taken the benefit of the failure of such 
 charges in opposition to the resulting trust, 140. 
 
 result of the decisions, 141. 
 
 no conversion as between heir and next of kin claiming by re- 
 sulting trust on failure or lapse of the particular trusts. [See 
 Conversion — Heir — Next of Kin.] 142. 
 
 REVERSION: 
 
 purchases of, from an heir raise a constructive trust. When? [See Fraud — 
 
 Heir.] 153. 
 purchases of, in general how far relieved against, ib. 
 term in, sold or mortgaged for raising portions. When? 365. 
 interests in, settled in trust for life must be converted, 393. 
 
 ROBBERY: 
 
 losses by, allowed to trustees. When? 573. 
 
 s. 
 
 SALE: 
 
 trust for, gives the trustees the legal estate, 231. 
 
 secus a mere power of selling. 235. 
 devise in trust for, prevents the restriction of the legal fee given to the trus 
 
 tees to a smaller interest, 242. 
 devise to trustees without words of limitation enlarged to a fee, where there 
 
 is a trust for, ib. 
 unauthorized contract for, by a trustee not specifically enforced, 282, 477. 
 when proper under a trust to raise a sum out oi rents and profits, 355, 366. 
 power of, given to trustees. 
 
 maybe appendant or collateral to their estate, 471. 
 
 what expressions sufficient to create, ib. 
 
 whether properly inserted in a settlement, under a direction to insert 
 
 " all usual and proper powers,"' 472. 
 by whom it may be exercised, ib. 
 
 by surviving trustees. When ? ib. 
 
 by continuing trustees on the renunciation of the others, 473. 
 by assigns of original trustee. When? ib. 
 whether by his devisee. Qvarei ib. 
 
 by the person who has the distribution of the proceeds, ib. 
 sale ought not to be committed to the tenant for life, ib. 
 delegation of exercise of power to an agent, how far proper, 474. 
 when the power is to be exercised, ib. 
 
 effect of a trust to sell " as soon as convenient," ib. _ 
 
 whether an immediate reinvestment ought to be in contempla 
 
 tion, ib. 
 whether power exercisable after the determination of the trustg, ib. 
 
 where the trust is determined as to part of the estate, ib. 
 unlimited power of sale how far valid,/475. 
 
890 
 
 INDEX. 
 
 S ALE . — Continued. 
 
 what acts are authorized by a power of sale, 475. 
 
 a partition or exchange, to what extent, ib. 
 
 a mortgage. When? ib. 
 
 leases not authorized by such a power, 476. 
 
 power of trustees to give discharges for the purchase-money, ib. 
 
 power of trustees to enforce the sale without concurrence of cestui 
 que trusts, 476, 479. 
 
 sale in consideration of the grant of a rent-charge improper, 477. 
 
 or a sale minus the timber, ib. 
 to whom the sale may be made, 478. 
 
 to the tenant for life, ib. 
 
 to a trustee for the purchaser, ib. 
 
 to trustees themselves, when and to what extent, 477. 
 how the power is to be executed, 478. 
 
 prescribed forms must be observed, ib. 
 
 effect of conditional powers of sale, and their impolicy, 479. 
 
 defective execution of the power aided in equity, ib. 
 mode of effecting the sale, ib. 
 
 whether special conditions are proper, ib. 
 
 duty of valuing the estate, ib. 
 
 notice of sale should be given to all parties, 480. 
 
 by public auction or private contract, ib. 
 
 sale may be in lots, ib. 
 
 trustees cannot buy in the estate without special power, 480. 
 
 their liability to auction duty, ib. 
 
 SCHOOL: [See Charity.] 
 
 trust to establish a "grammar school," or a " school," how to be executed, 
 
 467. 
 power of trustees to increase salaries of masters, 468. 
 jurisdiction of Court of Chancery to control, under 3 & 4 Vict. c. 77 ; 460. 
 
 SECURITIES: [See Investment.] 
 power for trustees to change, 
 
 their discretion in exercise of the power, how far controlled by the 
 
 court, 482. 
 not to be exercised without sufficient reason, 483. 
 relative interests of cestui que trusts for life, and in remainder, not af- 
 fected by exercise of the power by trustees, ib. 
 exercise of the power not enforced upon the trustees, ib. 
 unless the trust renders it imperative, 484. 
 where there is a change of circumstances, ib. 
 is an usual and proper power, 485. 
 
 SEPARATE USE: 
 
 nature and effect of trusts for the, of married women. [See Married 
 Women.] 419. 
 
 SEPARATION : 
 
 deeds of, between husband and wife how far valid, 426. 
 
 whether interposition of trustees for wife is essential. Qucere 1 ib. 
 covenant by trustees to indemnify husband from wife's debts, hov? far 
 
 requisite, ib. 
 provisions for future separation, void, 427. 
 mode of proceeding, where trustee refuses to enforce the separation 
 
 bond, ib. 
 wife has no power of disposition over property secured to her by a deed 
 
 of, ib. 
 
 SET-OFF: 
 
 debt due from cestui que trust cannot be set off in an action at law by the 
 
 trustee, 274, 317, 503. 
 debt due from a trustee set-off against his costs, 568. 
 
INDEX. 891 
 
 SETTLEMENT: [See Executory Trust.] 
 
 equity of a married woman for. [See Married Women.] 409. 
 
 SHARES: 
 
 liability of trustees of, to pay calls, &c., 446. 
 
 SOLICITOR: [See Attorney.] 
 
 SOVEREIGN, THE : 
 
 may create a trustee. How? 46. 
 whether he may be a trustee. Qluare '? ,49. 
 in cases of escheated tru.st property, .50. 
 in other cases. Qutere? 51. 
 razy he cestui que trust. When? 52. 
 
 will not be entitled by resulting trust to a charge, lapsed or failing, 139. 
 not entitled by escheat to real estate, held in trust on death of trustee without 
 heir since 4 & 5 Will. IV. c. 23; 269. 
 nor upon death of cestui que trust without heir, 270. 
 nor upon the forfeiture of cestui que trust for felony, ib. 
 secus, if the forfeiture be for high treason, ib. 
 entitled to personal estate held in trust, on the failure of next of kin, or the 
 forfeiture of cestui que trust, 27 1 . 
 but cannot call for, or benefit by, the conversion of real estate into per- 
 sonalty, ib. 
 
 SPECIFIC BEQUEST: 
 
 of perishable securities, what will amount to, so as to exclude the usual rule 
 for conversion, 390. 
 
 SPECIFIC PERFORMANCE: 
 
 of contract in breach of trust, not enforced, 282, 477, 509. 
 of contract of sale by trustees, when enforced by them without the concur- 
 rence of cestui que trusts, 476. 
 
 STEWARD : 
 
 gifts to, from his employer, will raise a constructive trust. When ? [See 
 
 Agent — Fraud.] 158, 161. 
 of a manor. How far the trustee of the manor is entitled to appoint, 274. 
 
 STOCK: 
 
 what is a proper investment, 376. 
 
 extraordinary bonuses on, not to be paid to tenant for life, 386, 446. 
 
 powers and duties of trustees of, 445. 
 
 they may give a power of attorney to receive the dividends. When t 445. 
 remedy on incapacity or refusal of trustees to transfer or pay divi- 
 dends, ib. 
 effect of reduction by act of parliament of, held in trust, ib. 
 allowance to trustees of brokerage on transfer of, 446. 
 
 STRANGERS: 
 
 whether a power enforced as a trust in favor of. Quare ? 67. 
 of the powers and duties of trustees in their dealings with, 503. 
 of suits between, and trustees. [See Suits.] 545. 
 
 trustees can only have costs as between party and party from. [See Costs.] 
 551. 1 
 
 SUBSTITUTIONARY CREATION OF TRUSTEES : [See New Trustees.] 
 
 SUIT: 
 
 of suits against trustees for breach of trust, 519. 
 
 ■ necessity of joining as defendants all the trustees implicated in the 
 breach of trust, ib. 
 effect of 32d Order of August, 1841, 521. 
 
892 
 
 INDEX. 
 
 SUIT.-^ Continued. 
 
 of suits by trustees for administration of the trust, 543. 
 
 acceptance of trust requisite to enable trustees to institute, ib. 
 
 how far cestui que trusts must be made parties to such suits, ib. 
 effect of 30th Order of August, 1841, 544. 
 
 trustees and cestui que trusts may join as co-plaintiffs. When ? ib. 
 of suits against trustees by strangers, 545. 
 
 cestui que trusts must in general be made parties, ib. 
 of suits against cestui que trusts by strangers, ib. 
 
 trustees must be made parties to such suits, ib. 
 
 effect of 1 Will. IV. 4, c. 60, Sect. 24, ib. 
 _ effect of 23d Order of August, 1841, ib. 
 so in suits by cestui que trusts against strangers, 546. 
 how far a trustee who has never acted, or disclaimed, must be made a 
 
 party, 227, 547. 
 practice where there are several distinct trusts, and sets of trustees, ib. 
 powers of trustees, how far controlled by the institution of a suit, ib. 
 
 not affected by the mere filing' of a bill, 548. 
 
 nor by a suit, not actually pending, and in prosecution, 549. 
 of costs of. [See Costs.] 551. 
 
 SUPERSTITIOUS PURPOSE: 
 what trusts for, are void, 455. 
 who entitled to benefit of such trusts, 133, 455. 
 
 SURPRISE: 
 
 instruments obtained by, raise a constructive trust. [See Fraud.] 145. 
 parol evidence admitted to prove, 167. 
 
 SURRENDER: 
 
 of a terra assigned to attend, whether it will be presumed. Quare? 
 
 [See Reconveyance — Term.] 255. 
 not presumed from lapse of time only without other circumstances, 257. 
 what additional circumstances sufficient to support the presumption, ib. 
 omission to notice an outstanding term a sufficient reason for presuming 
 its surrender. When ? 258. 
 only where there have been intermediate sales, 261. 
 effect of a general declaration, that the surrender of all outstanding 
 
 terms shall be presumed. Quare? 262. 
 easily presumed in favor of cestui que trust against the trustee, ib. 
 
 or between adverse claimants having equal equities, ib. 
 not presumed, where it has been noticed, ib. 
 
 or where it remains on foot for benefit of tenant for life, ib. 
 in whose favor it will be presumed. [See Reconveyance.] ib. 
 
 SURVIVOR: 
 
 of two or more trustees. [See Co-Trustees,] 
 
 devolution of estate on, upon death of others, 303. 
 
 when he may exercise powers given to all the trustees, 303, 472, 488. 
 
 he may disclaim. [See Disclaimer.] 303. 
 
 T. 
 TAXATION: [See Costs.] 
 
 TAXES: 
 
 cestui que trust for life liable to, and rates, 395. 
 
 TENANT FOR LIFE : 
 
 right of, to possession of title-deeds as against the trustees, 271, 384. 
 
 or to possession and management of trust estate, 273, 356. 
 powers and duties of trustees for, 384. 
 
 they must protect trust estate from waste by him, 385. 
 
 where the trust property consists of furniture, heirlooms, &c., ib. 
 
INDEX. 893 
 
 TENANT FOR LIFE.— Continued. 
 
 where it consists of personal estate, ib. 
 
 power of attorney for him to receive income, proper, 386. 
 duty of trustees to convert, where trust property consists of perishable 
 
 securities. [See Conversion.] ib. 
 right of tenant for life to the income of residuary estate during the first 
 
 year after the testator's death, 388. 
 entitled to the income, though the required investments are not made, 
 
 389. 
 entitled absolutely under a specific gift of articles, qua, ipso usu consu- 
 
 muntur, 390. 
 reversionary interests settled for life, must be converted for benefit of 
 
 tenant for life, 393. 
 liability of trustees, who join in evicting cestui que trust for life, ib. 
 substantial repairs must be borne by tenant for life, 394. 
 right of representatives of, to apportionment of periodical payments, ib. 
 liable to rates and taxes, 395. ' 
 
 effect of provisions for forfeiture by, on alienation or bankruptcy, ib. 
 liability of, to contribute to expenses of admission to copyholds, and renewal 
 
 of leaseholds, 431, 437. 
 renewing a lease in his own name, will hold on the old trusts, 439. 
 exercise of power of sale ought not to be committed to him by trustee, 473. 
 he may purchase trust estate from trustees, 478. 
 
 TERM: 
 
 surrender of, by a trustee when presumed. [See Surrender.] 253. 
 where it has been assigned to attend. Qucere? 256. 
 effect of omission to notice, for a long period, 258. 
 
 no distinction between one expressly assigned to attend, and one 
 attended by operation of law, ib. 
 becomes attendant on the satisfaction of the particular purpose, for which it 
 
 was created, ib. 
 attendant, powers and duties of trustees of, 324. 
 
 becomes attendant either by express declaration, or by construction of 
 
 law, ib. 
 term becomes attendant by construction of law. When? 325. 
 an intermediate estate will prevent its becoming attendant, 326. 
 may be disannexed from the inheritance, ib. 
 follows all descents and alienations of the inheritance, ib. 
 duty of trustees of, to assign, ib. 
 
 where he has notice of a charge or incumbrance, 327. 
 not merged by marriage of trustee of, with owner of inheritance, 327. 
 trustee of, entitled to costs of taking opinion as to assignment of, ib. 
 prerogative probate required to pass. When ? ib. 
 
 TIMBER: 
 
 sale of settled estate by trustees minus the timber, improper, 477. 
 
 TIME : [See Delay — AcauiEscENCE — Limitation, Statutes or.] 
 
 when a sufficient reason for presuming a reconveyance by a trustee. [See 
 
 Reconveyance — Surrender — Term.] 256, 259. 
 is no bar to express trusts, 263. 
 bars constructive trusts. When? 265. 
 
 cestui que trusts must be aware of their rights, 266. 
 
 must not be under disabihty, ib. 
 
 must be entitled to an estate in possession and not in remainder, ib. 
 
 creditors, societies, or charities not barred by, ib. 
 
 TITLE-DEEDS: 
 
 right of trustees to the possession of, 271, 384, 428. 
 
 where the property consists of personal estates, 272. 
 trustees suffering equitable tenant for life to get possession of, guilty of 
 breach of trust, 271, 384. 
 
894 
 
 INDEX. 
 
 TITLE-DEEDS.— Con^nueJ. 
 
 tenant for life having the legal estate, entitled to possession of, ib. 
 mere dry trustee has no right to retain possession of, 272, 428. 
 
 TRADE: 
 
 employment of trust funds in, improper without a special authority, 379. 
 
 liability of trustee to cestui que trusts for so doing, ib. 
 
 liability of trustee to be made bankrupt, by carrying on trade with the trust . 
 
 assets, 533. j 
 
 where the amount of trust-moneys to be employed in the trade is limited, ' 
 
 533. 
 trustee, being testator's partner, entitled to no allowance for carrying on, 574. 
 
 TRUST: 
 
 what may be subject-matter of a, 44. 
 
 illegal, not enforced, 45. 
 
 what expressions will create. [See Creation op Trustees and Parol.] 65. 
 
 where a power will be. [See Power.] 67. 
 creation of, by precatory words. [See Precatory Words.] 71. 
 resulting or presumptive. [See Resulting Trust.] 91. 
 constructive. [See Constructive Trust.] 144. 
 
 effect of Statute of Limitation upon. [See Delay — Limitation, Statutes 
 of— Time.] 263. 
 
 TRUSTEE: 
 
 general definition of, 41. 
 
 lestricfed definition of, as the subject of this work, 41. 
 
 origin of their estate, 41. 
 
 jurisdiction of equity over, 42. 
 
 who may create, 45. 
 
 who may be, 48. 
 
 must have a vested legal interest, 51. 
 
 how created. [See Creation op Trustees.] 
 
 also beneficiary, 65. 
 
 cannot make any personal profit from the trust, 114, 534. 
 
 legacies to, when they are entitled to claim them, 534. 
 gifts to, or purchases by, from cestui que trust, raise a constructive trust. 
 . When? [See Purchase.] 158, 534. 
 purchases by, from himself, treated as a constructive trust, 159, 536. 
 new, how appointed. [See New Trustees.] 190. 
 incapacity of, to delegate the office, 175, 560. 
 de son tort, 173. 
 
 of acceptance and disclaimer by. [See Acceptance — Disclaimer.] 221. 
 the estate of [See Estate — Legal Estate.] 229. 
 where an executor becomes a, 236. 
 right of, to hold beneficially on escheat or forfeiture of cestui que trust. [See 
 
 Attainder — Escheat — Forfeiture.] 270. 
 right of, to possession of deeds. [See Title-Deeds.] 271, 384, 428. 
 right of, to possession and management of estate. [See Management — 
 
 Possession.] 273, 384, 428. 
 actions at law must be brought in his name, 274. 
 
 right of, to prove for a debt against a bankrupt. [See Bankrupt.] 275. 
 cannot vote in election of member of parliament, ib. 
 
 or of coroner, 276. 
 not qualified to sit in parliament, or as justice of the peace, &c., ib. 
 is a competent witness in suits concerning the trust. When? 277, 540. 
 cannot be a receiver or consignee, ib. 
 has an insurable interest in a ship, 277. 
 of a dry legal estate, 316. 
 his powers and duties, ib. 
 
 his name to be u.sed in actions respecting the title at law, 317. 
 may purchase the trust estate, 158, 3 J 7, 493. 
 
INDEX. 895 
 
 TRUSTEE.— Continued. 
 
 cannot traverse an inquisition, 275. 
 
 may be receiver or consignee of trust estate, 539. 
 
 has no right to possession of title-deeds, 27], 428. 
 
 TRUSTEE CO-: [See Co-Trustee.] 
 
 TRUSTEE, NEW : [See New Trustee.] 
 
 u. 
 
 USE: [See Estate — Legal Estate — Tkust.J 
 
 effect of limitation of a, upon a previous use, 229. 
 
 trustee will take the legal estate notwithstanding the statute of. When? 
 
 230. 
 indiscriminate use of the word "Use" and "Trust" in a series of limita- 
 tions immaterial with regard to the vesting of the legal estate, 235. 
 
 V. 
 
 VISITOR: [See Charity.] 
 
 VOLUNTARY CONVEYANCE: 
 
 without any declaration of trust, in general creates no resulting trust, 106. 
 
 effect of a nominal or a meritorious consideration, 107. 
 evidence admitted to establish a resulting trust on, ib. 
 
 parol declarations admissible. When? ib. 
 
 what circumstances will be sufficient to establish the trust, 108. 
 
 effect of the deed being kept by the grantor. Qutsre? 109. 
 no resulting trust created by any subsequent act of grantor, 112. 
 
 but case of election thus raised, ib. 
 slight consideration will prevent any resulting trust on, ib. 
 if a valuable consideration expressed, there is no trust, ib. 
 resulting trust may arise as to pari ofythe property comprised in,ib. 
 evidence admitted on behalf of the volunteer, to rebut the trust, 113. 
 resulting trust not enforced on, if illegal, ib. 
 
 of the trust estate by a trustee, person taking under, though without notice, 
 bound by the trust, 282, 516. 
 
 VOLUNTARY TRUST: 
 
 effect of parol, creation of. [See Parol Trust.] 60. 
 enforced, if complete, 82. 
 
 though the deed be not communicated to the grantees, 83. 
 not enforced, if imperfect or executory, ib. 
 good or meritorious consideration not sufficient to support, 83. 
 what amounts to a complete and perfect voluntary trust, 84. 
 general result of the authorities as to the validity of, 85. 
 void against creditors, 90. 
 
 and against subsequent purchasers, in, case of real estate, ib. 
 
 secus, in case of personal estate, ib. 
 effect of notice of^ to a purchaser, 516. 
 
 w. 
 
 WARD: [See Guardian — Infant.] 
 
 gifts on sales by, to guardian, will raise a; constructive trust. When? [See 
 Fraud.] 157. 
 
 WASTE : 
 
 duty of trustees to preserve contingent remainders to prevent, 323. 
 or of trustees of estate settled for life, 384. 
 
896 
 
 INDEX. 
 
 WILL: 
 
 trustees may be created by, 63. 
 
 resulting trust not so readily raised on, as on deeds, 115. 
 
 equity has no jurisdiction as to fraud in obtaining, 1 50. 
 
 of the disposition of the estate of trustees by. [See Devise.] 283. 
 
 WITNESS: 
 
 how far a trustee is a competent, in suits respecting the trust, 277, 540. 
 
 WORSHIP : 
 
 trust to maintain the, of God, how to be executed, 467. 
 
 THE END. 
 
KP 730 E6k le^k c.l 
 
 Author 
 
 Vol. 
 
 Hill, Sir James 
 
 Title Copy 
 
 A practical treatise on the 
 
 lalf of relating to trustees 
 
 Date 
 
 Borrower's Name 
 
W^i^'^^W